Albert J. Doherty v. American Motors Corporation, a Foreign Corporation, 728 F.2d 334

Albert J. Doherty v. American Motors Corporation, a Foreign Corporation

728 F.2d 334

6th Cir.

1984

Check Treatment

*3 Western District of Tennessee. for the ENGEL, and Circuit Before EDWARDS AMC, Houtaling, and charged indictment WEICK, Judge. and Circuit Judges, Senior of, bribery conspiracy and Doherty bribe, government official a United States ENGEL, Judge. Circuit with the sale of nineteen in connection trial from which jury The record in the Naval automobiles to the United States Corp. American Motors the defendant Philippines. in the Sangley Base at Point in (AMC) demonstrates classical appeals after trial had been December On problems the moral and ethical fashion week, AMC, Doherty, for one progress in when a and its offi- which arise Houtaling negotiated each entered and enmeshed cers allow themselves become pleas These were pleas of nolo contendere. discovered, and, activities once in unlawful and there- opposed by government, not the hoped- themselves. The seek to extricate Judge Bailey District after United States indeed, in seem gains, retrospect, paltry fines accepted pleas imposed Brown and effort, the ultimate cost in compared to $15,000 $3,000 on AMC and each on Do- A American money, reputation. major and Houtaling. paid and AMC both its herty viola- corporation found itself indicted for the two own fines and those on imposed obliged by tion of federal law. It was individual defendants. negotiated pleas circumstances to enter and, litigation in the civil reflected this Doherty employment continued in the appeal, jury to confront an adverse award “retired” being involuntarily AMC until plaintiff in favor of the which totaled August, five AMC months later. $1,000,000. Because we hold that excess plea nine after his approximately months facie plaintiff present prima failed to to set aside sentencing, Doherty and moved proof of under 42 conspiracy U.S.C. in the of nolo contendere district plea 1985(2) 1981), (Supp. V we vacate the freely was not claiming plea court that his jury general entered the result of voluntarily and made but was proceedings. verdict and remand for further coercion, du misrepresentation, fraud and ress, intimidation, and undue influence on issues, the facts will give To focus hearing After a on Octo part AMC. initially summary addressed in fashion 17, 1975, Brown denied the mo ber development with more detailed included in tion, the nolo expressing opinion the discussion of the individual issues which made, finding have appeal. plea voluntarily been raised and Doherty’s con primary its inducement possibility prison for the of a sentence I. cern trial he was convicted. if the continued and Doherty joined Plaintiff Albert J. Ameri- this decision to Although Doherty appealed can Motors in 1961 as the Di- Corporation court, on May this was dismissed appeal operations. rector of AMC’s Far Eastern Thereaft 24, 1976 prosecution. for want of initial Doherty’s supervise function was er, in the United complaint filed a all AMC distributors and dealers the Eastern Dis District Court for States area, time to and was stationed from Michigan plea that his nolo alleging trict of through- time in several different locations threats, coercion and intimi was induced how- out the Far East. In 1969 or juris ever, question Federal were re- dation from AMC. Doherty’s responsibilities an stricted to claims of overseeing premised upon sales to the United diction was plea to deter AMC concedes that the itself is not a unlawful wit- truthfully as a attending testifying contrary, bar to claims. On the court, in in a United party ness and States of nolo contendere is a confession only Act of 1861. 42 Right violation of the Civil purpose prosecution for the criminal 1985(2). also invoked the U.S.C. § does not bind the defendant a civil the court over Mich- pendent jurisdiction of wrong. action for the same Berlin v. Unit- tort, igan conspiracy, state law claims of States, (3d Cir.1926); 14 F.2d 497 ed trial, and fraud. After an extensive Sedan, Stylemaster v. One Chevrolet of Doherty returned a verdict in favor jury (D.Colo.1950). With F.Supp. $149,000 in the amount of against AMC here, exceptions applicable certain not Rule $910,600 exemplary damages actual 410 of the Federal Rules of Evidence fur- followed. damages. appeal This provides ther evidence of of nolo against contendere is not admissible asserts that the district court’s re- *4 plea. contendere defendant who made the As the Doherty’s fusal to set aside nolo plea bribery proceedings in the criminal col- in the Advisory *5 duress, coercion, to establish such or invol of is plaintiff’s proof heavy, burden untariness of the evi by preponderance guilty plea only can be withdrawn in dence. While the authorities differ in their cases, extraordinary we that more believe description proof upon of the burden of preponderance than a mere of the evidence set moving party plea to aside a of nolo required a trial judge would be before it accepted, contendere after has been set aside a it plea duly would once cases, Feikens, out pointed by Judge entered and sentence We imposed. generally rely on Federal Rule of Criminal agree with Judge therefore Feikens’ conclu- 32(d) provides: Procedure which sion that there is a difference in the stan- Guilty.

(d) of Withdrawal Plea of proof applica- dards of precludes tion of the doctrine of collateral estoppel. A motion to a plea withdraw of or nolo contendere may only be made before III.

sentence is imposed imposition or of sen- suspended; tence is but to correct mani- question jurisdiction The federal in injustice fest the court after sentence upon voked his premised is may set aside the judgment of conviction claim that he was forced threats and and permit the defendant to his withdraw falsely intimidation to answer at his plea. hearing and to enter a conten nolo although guilty. dere he was not in fact Thus, 32(d) under Rule it is clear claims, amounts, All of this to a the burden is the movant to against him conspiracy meaning within establish that injustice manifest has oc 1985(2). of 42 pro U.S.C. This section Michaelson, curred. See United States v. injured vides the with an for party action (2d Cir.1977); 552 F.2d 472 Sherburne recovery damages States, (8th Cir.1970); 433 F.2d 1350 Giuliano, (2d United States v. two or more or persons any State F.2d [i]f Cir.1965). deter, force, The courts also to be in appear Territory conspire to in- agreement timidation, threat, the trial court has “wide or any party or wit- 32(d) discretion” under Rule to determine court any ness of the United States plea, attending court, whether to set aside the and that the such or from testi- therein, appeal judge any standard on is whether matter fying pending freely, fully, truthfully, injure or to with the following persons: Forrest Hain party person line, AMC; such or witness in his or in-house counsel to Joseph Vie- property having on account of his so at- Jay son and A. Herbst of the Detroit law testified, tended or or to influence Cross, Wroek, Vieson, firm of Miller & out verdict, presentment, or indictment of AMC; side counsel to Lucius Burch and any grand petit juror any or such Charles Newman Memphis law firm court, or injure juror person such in his Burch, Johnson, Porter & Memphis coun verdict, or property any account of engaged sel as local represent counsel to presentment, or indictment as- lawfully AMC; and, Maniré, James M. finally, coun him, sented to by being or of his or hav- engaged by sel who was represent AMC to ing been such juror; or if two or more Doherty in the latter’s own defense in the persons conspire for the im- purpose criminal proceedings. difficulty peding, hindering, obstructing, or defeat- that, exception Manire, with the of Mr. all manner, ing, in any due course of persons named were either employees justice in any Territory, State or agents or of AMC. intent deny any equal citizen the urges general AMC rule in civil con- laws, protection of the injure or to him or that a spiracy corporation cannot conspire property lawfully enforcing, or with its agents employees. general- See enforce, attempting to the right any ly Motorola, Nelson Radio & Supply Co. v. person, persons, or class of to the equal cert, Inc., (5th Cir.1952), 200 F.2d 911 de- protection of the laws. nied, U.S. L.Ed. respect With particular this cause of The rationale of the Fifth action, first claims that racial or other Circuit in Nelson Radio has generally been class-based animus is required order to accepted: state a cause of action for a It is basic in the law of conspiracy that deter within testimony meaning of sec- must have two you persons or entities to 1985(2). have a A conspiracy. corporation cannot Whatever uncertainty may have existed conspire with pri- itself more than a *6 raised, at the time the issue was it appears can, general vate individual and it is the now that Judge ruling Feikens’ to the con- agent rule that the acts of the are the trary has been fully supported by the deci- acts of the corporation. sion of. Supreme the in Court Kush v. Rut- 200 F.2d at 914. While Nelson Radio dealt 1483, 719, ledge, 460 75 U.S. 103 S.Ct. alleged with an conspiracy under section Kush, L.Ed.2d 413 In the Court Act, one of the Sherman 15 U.S.C. 1 § portion held that the 1985(2) of section re- (1982), the same rule has consistently been lating the intimidation of in witnesses applied allegations of conspiracy under federal courts did not require allegations of Thus, Rights the Civil Act. in Herrmann v. class-based animus. We therefore conclude Moore, (2d Cir.), denied, 576 F.2d 453 cert. judge the trial did not err in denying 1003, 613, U.S. 99 58 L.Ed.2d 679 439 summary judgment on that basis. (1978), plaintiff the had a alleged conspir acy between an educational corporation, IV. School, Brooklyn Law and its trustees and assertion, next AMC’s have does employees. denying plaintiff’s claim merit, is plaintiff failed to prove 1985(2), repeated under section the court that AMC was engaged conspiracy a the “familiar doctrine” that “there is no within meaning of the statute. conspiracy if conspiratorial conduct To sustain a cause of action under 42 challenged essentially single is act by a 1985(2), plaintiff U.S.C. must prove single corporation acting exclusively directors, officers, existence of a conspiracy among through “two or its own and em persons.” more Doherty’s complaint al within ployees, acting scope each of his leged that AMC as a corporation conspired 576 F.2d at 459. The same employment.” 340 found, all, relationship if at in the between applied frequently throughout has been

rule AMC, officers, v. 94th & Fifth country. agents, attorneys, Girard Street its 66, (2d Cir.), cert. Corp., Avenue 530 F.2d 70 hand, Maniré, Doherty’s the one and James 2173, denied, 974, 48 425 96 S.Ct. U.S. counsel, on the other. From our examina- v. Broad (1976); 798 Baker Stuart L.Ed.2d record, we can no tion of the ascertain Co., (8th Cir.1974); 505 F.2d 181 casting evidence whatsoever of unlawful or unethi- 190, 196 Dowling, v. 459 F.2d Dombrowski Maniré, part conduct on the of Mr. let cal Cir.1972); v. Marine Midland (7th Sciolino permit jury alone conduct which would 128, Bank-Western, (W.D. 134 F.Supp. 463 that he was with AMC to conspiring infer Mars, Inc., 461 N.Y.1979); Coley v.M & M in court or Doherty’s right testify affect 1073, (M.D.Ga.1978); 1077 Jones v. F.Supp. appear his own defense. The evidence Co., 815, F.Supp. 397 Tennessee Eastman overwhelmingly contrary. aff’d, 1402 (E.D.Tenn.1974), 816 519 F.2d being After named with in the Au- Dunbar, (6th Cir.1975); Fallis v. 386 13, indictment, gust Doherty, while 1974), aff’d, (N.D.Ohio F.Supp. innocence, vehemently insisting his (6th Cir.1976). 532 F.2d 1061 (cid:127) for the his de- expressed concern cost of however, argues Doherty, he was in- Accordingly, fense. notified this rule either to general apply does not house counsel Forrest Hainline that AMC counsel or to outside counsel. His in-house This willing pay legal expenses. In Burch proposition any support. fails of conveyed Doherty in a information Snider, (D.Md.1978), F.Supp. letter from Hainline dated November on as authority Nelson Radio was relied cor- explained 1973. Hainline that AMC’s proposition “Qjjust corporation as a for such action was found porate authority through agents cannot act its except II, 9(i) corpora- in Article Section officers, generally participate it cannot bylaws. tion’s This section states: “The litigation except through counsel.” The also, law, corporation Corporation may provided by rulé of this circuit is that a except cannot in federal court appear .. . indemnify any person who is or was an ” Cohn, an through attorney. Ginger v. agent .. .. employee Corporation Cir.1970); (6th F.2d law, (emphasis added). Maryland to which Land, States v. 9.19 Acres of 416 F.2d subject Maryland corporation, AMC is as a (6th Moreover, Cir.1969). it is clear that: attor- provides “Expenses (including from the record that the actions of AMC’s fees) ney defending incurred in a civil or attorneys by personal were motivated not action, proceeding may criminal suit or concerns but concerns for their clients. paid by in advance of the Md.Corps. & disposition Proof of final thereof.”1 the existence of a 1985(2) *7 64(a) (1977). under section must therefore be Ass’ns Ann. Code provision reasonably by 1. The entire him in Article section incurred connection 64(a) action, suit, proceeding is as follows: with the or if he act- good Any may ed in faith and in a he reason- corporation manner indemni- of this State ably opposed fy any person party believed to be in or not was or is a or is who and, corporation, party any best interests of the threatened to be made a ened, to threat- with action, suit, any pending, completed respect proceeding, to or or criminal action or civil, criminal, proceeding, whether adminis- had no reasonable cause to believe his con- trative, investigative (other any or than an action was unlawful. The termination of duct action, suit, by corporation) by by right proceeding judgment, or in the or or- settlement, director, der, conviction, reason of the fact that he is or was a or a officer, not, employee, corpora- equivalent, agent or of the nolo contendere or its shall tion, itself, per- serving request presumption or a or is was at the of the create officer, corporation director, employee, good not act in faith in a manner a son did and reasonably agent corporation, partnership, believed to be in or not or of another joint venture, trust, corpora- enterprise. opposed or other The to the best interests of tion, and, any may against expenses (in- respect criminal action indemnification be with fines, cluding attorneys’ fees), judgments, proceeding, had reasonable cause td be- actually paid and his conduct was unlawful. amounts settlement and lieve that Doherty condi- counsel for AMC. tes- described the and outside letter then Hainline’s that these men told him al- tified at the trial was which the tions under lawyer” “arrange would by- they under its indemnify Doherty lowed to him, and that Herbst recommended Mem- Maryland law: laws and under was attorney Doherty James Maniré. phis indemnified be entitled to be You will meeting pay that AMC would told at this reasonably and expenses actually against He also testified that he attorney. for his in the defense of the by you incurred was in- any lawyers. Doherty know didn’t action, are successful in the de- you if that he was free choose formed or if it is determined fense of the action Herbst, wished, particularly, counsel he you the action that the conclusion of at should have coun- emphasized Doherty you faith and in a manner good acted in his own choice because sel of op- be in or not believed to reasonably might not coincide with personal defense Corpo- of the to the best interests posed should Doherty that of AMC and because had no reasonable you ration and that attorney ap- confidence in the conduct was unlaw- have full your to believe cause responded in a letter dat- Doherty pointed. ful. ac- December 27 that Mr. Maniré was ed indictment, Do- After the return of was Mr. only and that his concern ceptable, back to the United was summoned herty Manire’s fees. face the the Far East that Maniré Doherty’s theory conspired Memphis, him the charges against by made solely upon is based entering the somehow with AMC grand jury. Tennessee Before Windsor, recommended Ma- States, originally met fact that AMC Sheridan, Herbst, Doherty’s attorney agreed niré as Jay with John Canada to Article section they pay pursuant There con- Maniré and Charles A. Watson. matter, Article 9(i) bylaws, of AMC’s section concerning extensively ferred 64(a) Maryland Corporation of the Law.2 having a means of a free undoubtedly as was, at trial as he ex- Doherty’s theory arrived interchange of ideas before brief, States, in his that Maniré had some- thereby avoiding pressed in the United “to sell his client down the by govern- of interference how decided possibility satisfy the wills and Export the head of the river ment. Watson was [in order] difficulty The AMC, of ... AMC.” Division of while Sheridan desires simply is that there is no in-house counsel the assertion respectively Herbst were legal prin- Maryland being proper extension of under with establishment or 2. In addition to law, payment protection appears ciples it to Maniré AMC’s than the immediate permitted of Profes- rights lawyer’s was the Model Code client. individual On Responsibility. occasions, The Model Code of Pro- priority sional of work some decisions Responsibility Disciplinary Rule 5- fessional may employer than made rather 107(A)(1) provides: prosecution lawyer with the result that (A) Except of his client af- with the consent already post- for clients is work undertaken disclosure, lawyer shall not: ter full Similarly, poned em- to their detriment. an (1) Accept compensation legal for his ser- seek, may consciously ployer or unconscious- than his client. vices from one other ly, further its own economic interests to; strictly guideline This adhered lawyers through employed the action of the completely paying for aware of who was lawyer always it. must be free to Since services. Manire’s professional judgment without exercise his corresponding pro- ethical consideration regard of a third to the interests or motives *8 vides that: lawyer employed by person, who is one pays person organization that or fur- A or constantly guard represent another must lawyers represent possesses others nishes professional against erosion of his freedom. power strong pressures potential to exert Responsibility E.C. Model Code of Professional against independent judgment of those law- 5-23. employers may yers. in be interested Some absolutely Ma- no indication that There is economic, furthering political, or their own handling professional Doher- nire’s profession- goals regard social without ty’s being paid by was affected defense lawyer responsibility his individu- al of the AMC. may far concerned al client. Others more 342 for it. There is not one support

factual States officer. Maniré advised could, ex- duty instance in the record that what he was bound to advise him: amination, permit serious, even an inference that were charges po- that the dishonest, unethical, term, Manire’s conduct was penalty five-year prison tential was unwise, contrary duty faithfully to his possibly another sentence aiding true, course, represent Doherty. It is of and that abetting, although Maniré was that Maniré was regular consultation confident, reasonably he not obviously could with counsel for the other AMC and for guarantee acquittal. an defendants. To have done otherwise would justifiably Maniré was concerned over have height been foolishness. How- aspects certain of the evidence which could ever, give at no time did Maniré ever advice against Doherty. bribery be used did reasonably which could be construed as be- place, in fact take and thus the likelihood ing improper. Doherty either unfair or Navy employ- that the and the they himself testified that when discussed guilty ee would be found of a violation of case, Maniré told him that AMC and law very strong. Doherty federal was was didn’t have a “chance hell” Houtaling but charge military of sales to the in the Maniré was convinced that Doherty that. Philippines. At the time bribery, “wasn’t too bad off.” Maniré testified ex- rightfully could claim that some of the trial, tensively at the testimony and his was ought transactions which to have normally factually not controverted At Doherty. him, through gone by-passed him when cer- no time could Manire’s advice be deemed to employees tain AMC became aware of Do- coercive, have been and at no time did herty’s strong objections which anything Maniré indicate that he would abandon Do- time, bribery. smacked of At the same herty’s defense should the latter elect to Doherty admitted that certain of his corre- continue on to trial. The unquestioned spondence could have interpreted by been truth was that proceeded after the trial had an knowledge outsider to reveal both his week, AMC, for a the case against Houtal- bribery complicity scheme and his in it ing, defendant, Austin, and the other through forwarding papers by which strong, and that Maniré had succeeded in at the sale of the vehicles to the United States putting least some distance between Doher- was consummated. ty and the other defendants. This is not to that there say pressure was no on Doherty law, Under federal criminal once at all. had three concerns at the an unlawful conspiracy has been estab entering time of his plea of nolo contendere. lished, it takes “slight proof” but to make jury the issue of individual involvement a First, he was concerned that he would be Richardson, question. United States v. 596 jail convicted and receive a sentence. De- 157, (6th Cir.1979); F.2d United States spite Doherty’s constant and emphatic prot- Cir.1975). v. Mayes, (6th F.2d innocence, estations of the record demon- This is a basic tenet law and pressures strates that the upon Doherty to certainly Usually known to Maniré. plead nolo contendere indeed, were severe complicity of an individual in a conspiracy but they were severe not because of already proved by (1) established is knowl improper or unlawful conduct on the part (2) edge conspiracy, and some act Maniré, but because of the nature of the done by that individual in further case itself. However innocent he have may ance of that be, conspiracy. conceived United States himself to had been Shermetaro, (6th 625 F.2d indicted Cir. grand jury a federal in Mem- 1980); Levinson, phis. That United States v. 405 F.2d grand jury had found from evi- denied, presented (6th Cir.1968), dence proba- to it that there was cert. 395 U.S. ble cause to believe that he had been 23 L.Ed.2d first, of two felonies: conspiring denying to bribe a motion to set aside officer; and, second, United aiding plea, Judge the nolo contendere Brown ob and abetting in bribery of a probably served that at trial he would have *9 of ac- trial, denied motions for directed verdicts the commencement of the criminal quittal go and have allowed case to to Doherty had Maniré draft a letter to AMC’s Indeed, Judge Brown indicated jury. inquiring counsel about the effect a convic- being chances of- convicted might have on his future employment were In Brown’s words: good. at responded AMG. AMC’s counsel “no commitment could be made regarding his [Doherty] changed At the time the continuation of any person’s employ- nolo, proof

from not to all the was ment ... a following conviction.” AMC’s in—all we had left was testimo- Austin’s letter also made it clear that “any time if ny; gone jury and this case had to continuation or termination of employment in, proof with all the the Court feels considered, being all relevant factors and very there would have been a definite evaluated, circumstances must be one of convicted, chance he would have been and which could be such a conviction.” Doherty convicted, if he had been I would have viewed the letter as a “direct threat.” Al- given him some time any ques- without it, though such a may tion about letter have been giving instead him a con- $3,000 fine, by Doherty I sidered given subjectively would have him three as a direct threat, Now, or four in fact the years penitentiary. letter did no more than true, I being legal position can’t see where the outline the which AMC had a great complaint take, right is. to and probably required was to take. Doherty’s expressed distaste for the bribery defense, would not have constituted a nor Lastly, Doherty was worried about hav- degree guilt would the relative of the ing to pay legal expenses. his AMC had conspirators. might persuade Such factors Doherty stated that if were not acquitted it a jury acquit to but would not it. guarantee might require Doherty pay to for his own note, also, interesting It is to that Doherty’s defense. was Doherty convinced that he decision plead just to came before John did not have the wherewithal pay for his Howell was to be called as a government expenses. legal witness. played Maniré no role in bringing these John Howell was the franchisee pressures Doherty; to bear on was Doherty representing American Motors in the Phil aware of the fully consequences of a convic- ippines intimately and associated with tion. Nor is there evidence that Ma- plot government to bribe the official. voluntarily through niré acted as a conduit Maniré, According testimony Howell’s job funneled termination would have been damaging Doherty Doherty. threats Maniré acted at all biggest was Manire’s concern at trial. Ma complete fidelity Doherty times with niré was concerned because Howell Do interests, proper his and with that inde- herty good were not on terms. As Maniré which was him pendence required of stated, there were some raw ex “pretty counsel and as an officer of the court. Ma- men.” In changes between these two addi Doherty options open niré advised tion, Maniré discovered that Howell would him, but the final to Doherty. left decision testify Doherty knew about . Doherty weighed options his and chose a planned bribery receptive and was to and nolo as his best alternative. Now he the deal. pleased light with of Howell’s to blame his his lawyer seeks decision. and the other

proposed testimony considera Maniré did more than nothing explain above, good tions noted had cause options law to discuss to be worried about the outcome attorney. him. That is the of an duty trial. fee payment AMC’s Manire’s Do- Second, con- undeniably herty’s request enough is not to establish 1985(2). about would under section It was impact cerned the case his future board and in accordance employment completely have on with AMC. above Indeed, Thus, before not August, paid four months with law. had AMC Do- *10 fees, herty’s attorney Doherty recovery.5 would cer- theories of When one of several tainly pointed have to that fact as evidence claims submitted to the jury should not submitted, verdict, that have been attempting general AMC to coerce him. “a such as was rendered here ... cannot rested, plaintiff After and at stand.” Morrissey v. National Maritime evidence, close of attorney AMC’s America, 19, Union of (2d F.2d Cir. moved for a directed verdict on Doherty’s 1976). is no way to know that the “[T]here 1985(2) grounds section claim. AMC’s for a invalid claim ... was not the sole basis for directed verdict were that a the verdict.” United Pilots Association v. cannot conspire agents with its and that Halecki, 613, 619, 517, 520, 358 U.S. 79 S.Ct. Doherty failed to offer had evidence (1959). 3 L.Ed.2d 541 See also v. Schultz tending to establish a between Products, 426, (6th Tecumseh 310 F.2d AMC and Maniré. This motion should have Cir.1962). granted. been motion for judgment AMC’s pursuant 50(b) n.o.v. to Fed.R.Civ.P. should VI. have granted been on the same grounds.

n After a careful review of the entire evi- CONCLUSION we trial, Because conclude that dence of the we section Doherty conclude 1985(2) claim should at not have been sub- best was able to introduce proof of two the jury mitted to First, general jury that the theories. proof introduced some stand, verdict cannot Doherty has lost his AMC failed abide an under- basis for federal question jurisdiction. It standing Doherty was to employed however, appears, complaint by the company until the normal time for that he could establish diversity jurisdic- Second, his Doherty retirement.3 intro- remand, tion. On Doherty should be al- duced proof that he was induced to enter lowed to establish diversity jurisdiction if his plea of nolo contendere with the under- he is able to. standing that he being promised such time, employment, but that at the AMC did Accordingly, judgment of the district Instead, not intend to fulfill its obligation.’ court is Reversed and Remanded for dis- claims, Doherty AMC waited a respectable missal unless can establish diversi- time and then forced him into an early ty jurisdiction. retirement on pretextual grounds.4 WEICK, Judge, Senior Circuit concurring V., in part dissenting in part. jury Because the returned a gener I verdict, al impossible it to determine whether it based recovery on Doherty’s sec I part concur in that of the well-written 1985(2) claim or on one of the other opinion of the majority to the effect jury 3. Whether such if conduct believed special 5. interrogatories Neither side asked for support special would be sufficient an action or for so, verdicts. for Fed.R.Civ.P. 49. Even general Michigan breach of contract verdict cannot under law stand. In Avins is not White, (3d Cir.), denied, explored v. 627 F.2d 637 cert. in the briefs before us nor resolved 449 U.S. court, 101 S.Ct. 66 L.Ed.2d 244 the district and we do not endeavor (1980), the Third Circuit considered a case in resolve it here. grounds recovery which two should not jury. here, have been submitted to the As “no pretext apparently 4. The involved AMC’s abili- special interrogatories or verdict form were re ty Navy employing to deal with the while Do- quested jury.” Avins, or sent to the 627 F.2d herty. it indicated that retired general at 646. court held that rule entering because it was debarred from into applied; stating general that “Where ... Navy employed contracts with the while it may verdict on rest either of two claims —one someone with a criminal record. supported by the evidence and the other not —a part claimed that he had obtained clearance citing thereon must be reversed.” Id. Navy from the and that neither he nor AMC Co., Albergo Reading (3d 372 F.2d Navy was debarred from contracts on this ac- 1966), denied, Cir. cert. 386 U.S. 87 S.Ct. count. 18 L.Ed.2d 232 *11 here You have been prove conspir- a THE COURT: Doherty failed to plaintiff trial, this of course? throughout as re- persons” “two or more acy between Yes, 1985(a). sir. 42 U.S.C. MR. DOHERTY: quired by you you And know are THE COURT: of con cannot be convicted A comple- the on to go to have trial entitled as employees agents own with its spiring if want to? you tion employees its through act only it can Yes, sir. MR. DOHERTY: an iota of evidence There was not agents. plea this of AMC, You make THE COURT: conspired corporation, freely voluntarily? Nolo Contendere Maniré. The district attorney corporation’s Yes, mo denying erred in court DOHERTY: sir. MR. close of verdict at the

tion for a directed I Has anyone, THE COURT: judgment and its motion for plaintiff’s evidence mean, in promised you anything anyone judgment of the district N. O.V. with this other plea connection than therefore, should, be reversed and the court $3,000? fine of proposed the com for dismissal of cause remanded No, sir. MR. DOHERTY: for further merely not remanded plaint and anyone THE Has threatened COURT: majority in proceedings provided you any way? in opinion. No, sir. MR. DOHERTY: THE You are not under the COURT:

II drugs alcohol or at this influence time? Estoppel Collateral No, MR. DOHERTY: sir. was also cause of action Doherty’s entire satisfied with you THE COURT: And are estop- of collateral barred the doctrine in this case? representation your Furthermore, falsely testified pel. Yes, sir. MR. DOHERTY: Bailey hearing Judge before District at if And I take it now that THE COURT: from not changed Brown where he they these fines that imposes the Court ought He not to to nolo contendere. it, days, you within can do paid will be testimony. false profit by giving Doherty? Mr. sub- pleas contendere were first The nolo Yes, sir, I can do that. MR. DOHERTY: by American Mo- Judge mitted to Brown All The court does right. THE COURT: Houtaling. L. Brown tors and John in fact for these Nolo Conten- find basis Doherty as follows: then addressed up to this pleas based on the trial dere are, course, Mr. THE COURT: You further anything Is there point. Doherty? A.J. side, Mr. Burch? your Yes, sir. MR. DOHERTY: 30a-33a). (App. are Doherty, you THE Mr. COURT: imposed following The court then four, is that named in count two and of nolo Doherty. On a sentence right? of the defendant A.J. contendere Yes, sir. MR. DOHERTY: he’s each the two counts in which as to proposal And the is that THE COURT: it is the of the court charged, $1,500 fine, $3,000, total fine of you pay $1,500 in each of these pay that he a fine counts, two and on each of these two counts, $3,000, which must be a total fine of four, is that plea, a Nolo Contendere 33a). January (App. 1975. paid by what want to do? you attorney, William J. Doherty, by his Yes, sir. MR. DOHERTY: Weinstein, in the district court a Mo- filed Now, un- you you THE COURT: believe To Aside Plea of Nolo Contendere Set with, do you charged derstand what are Trial, Affida- and For a New and Sentence you not? Thereof, Support vit Memorandum Judge Bailey and Citations. Yes, sir. Authorities MR. DOHERTY: hearing present rights civil action where he stated presided Brown at the paragraph 20: Weinstein, by Doherty’s attorney, attended Parrish, Larry Assistant United States threats, promises That as result of not even attend Attorney. Doherty did part conspira- and coercion on the Weinstein, hearing. attorney, His advised tors, your plaintiff compelled to en- to a question by the court in answer ter a charges nolo contendere court as to whether was here and indictment, was “counselled” is living Weinstein stated he not and *12 compelled falsely testify and to before Hong The court heard Kong. only the the he was judge trial that satisfied with arguments statements and of counsel. counselling, his that understood the testify Weinstein called no witnesses to and charges, nature of the that he made the none were the by government. called All freely of nolo and volun- contendere had a full opportunity litigate. and fair him, that had tarily, no one threatened Brown, (App. 85a). Judge deny- 35a to they promised anything nor had other ing the Motion stated: $3,000, proposed than fine because of his fear of that if he did not consequences Well, THE COURT: let me this to say suffer irreparable do so that he would

you. At the client your changed time his harm, proximate all the cause of the ac- nolo, plea from not all the guilty proof co-conspirators, jointly tions of the and was in—all left was we had Austin’s tes- ours). collectively (emphasis timony; gone and if this case had in, jury with all the proof the Court feels action, present rights Doherty In the civil very there would have been a definite testified under at the trial oath before convicted, chance he been would have jury in answer his question by lawyer to a convicted, if he I had been would have Weinstein as follows: given him without any ques- some time Q. you- your Did answers to the —were it, giving about him a instead Judge’s questions true? $3,000.00 fine, given have I would him They 103). A. were lies. complete (App. three or four in the years penitentiary. hearing At the before District Judge Now, true, I can’t see where being Brown on To Doherty’s Motion Set Aside the is. great complaint Sentence, Plea Of Nolo And Contendere Doherty having was fortunate his nolo Trial, and Motion which For A New Doher- because, plea accepted contendere after its attend, ty neglected to even he had a full acceptance, proceeded the against trial the litigate and fair all of the opportunity defendant, Austin, was who found by rights issues involved in his civil action and jury. judgment by Judge entered District Doherty’s Weinstein acted as attorney in Brown to set aside denying said motion his filing the present rights civil action. nolo contendere from which court, in Doherty’s appealed appeal defended itself civil to this rights action on a number of different dismissed by this court failure grounds, on grounds response but to even file a brief in to an order principally cause, that no exist conspiracy could between it- of this court to show constituted res self employees judicata and its estoppel. ques- own or collateral The action proof was barred the doctrine of tion raised as is not by res to burden judicata or estoppel. applicable, simply neglected collateral It also al- leged that when he falsely litigate testified before all of the issues had a full District Judge Brown at and fair do so. Bailey opportunity nolo hearing Doherty ought contendere present civil During rights the trial of the not to be permitted profit thereby. action, tape deposition video Doherty took a Brown, The false testimony Judge admitted in the but Brown adhered verified complaint by Doherty previous filed to his decision.

347 Supreme approval by 101 was cited 449 U.S. McCurry, Allen v. 90, 97, McCurry, in Allen v. U.S. (1980), Su- Court L.Ed.2d 308 S.Ct. 9, 101 411, 416 9, L.Ed.2d 308 our fn. written in. S.Ct. opinion in an preme Court opinion in an written our Circuit applied (1980), Justice Potter Stewart Circuit estoppel holding in a in a of collateral Justice Potter Stewart § doctrine police criminal trial state officers damage against to a state court suit proceeding seizure, of search and in the federal court under issues filed U.S.C. involving hearing held a state court decision of the state court in a where the evidence suppress motion to evi respondent’s suppress case on motion to criminal assert that state did not respondent by police that had been seized had dence oppor- a full and fair had denied him up courts effect. We should estoppel collateral seizure claim his search and tunity to assert Judge Bailey hold the decision of District was barred Stone and held that he Brown.* 3037, 49 Powell, 428 U.S. of the district court should in an action for dam- (1976) L.Ed.2d and the cause remanded with be reversed *13 against 1983 under 42 U.S.C. ages filed complaint. instructions to dismiss home and who entered his police officers ruling This question. seized the evidence force to federal equal apply

should

criminal trials. judicata res decisions on pertinent

Other v. are: Commissioner estoppel

or collateral 719, 597, 715,

Sunne, 591, 68 333 U.S. S.Ct. Corp. v. (1948); Emich Motors

92 L.Ed. 898 558, 71 340 S.Ct. Corp., General Motors U.S. BEENE PRODUCE MELVIN Swenson, v. 408, (1951); 534 Ashe 95 L.Ed. Petitioner, COMPANY, 1189, 436, 25 L.Ed.2d 469 397 90 U.S. S.Ct. v. States, v. United 440 U.S. (1970); Montana MARKETING The AGRICULTURAL 147, 970, (1979); L.Ed.2d 210 99 59 S.Ct. SERVICE, Respondent. Moitie, v. 452 Department Stores Federated 2424, 2427-2428, 394, 398, 69 101 U.S. S.Ct. No. 82-3826. (1981); v. F. Lee Bail L.Ed.2d 103 McCord of Appeals, Court United States denied, (D.C.Cir.1980), 606 cert. ey, 636 F.2d Circuit. Sixth 983, 101 2314, 839 68 L.Ed.2d S.Ct. U.S. 90, (1981); McCurry, Allen v. U.S. 11, Jan. 1984. Argued 411, 66 L.Ed.2d 308 S.Ct. 28, 1984. Decided Feb. estoppel cases on collateral Circuit Sixth States, v. judicata: Ivery res — denied, Cir.1982), (6th cert. F.2d 410 —, 75 L.Ed.2d 788 U.S. Weick, Coe, JJ.); Jones and

(1983) (Merritt, Education, 693 Dept. of Michigan

et al. v. Cir.1982) (Keith, Merritt and (6th

F.2d 616 Bar Asso

Peck, JJ.); Coogan Cincinnati Cir.1970)

ciation, (6th 431 F.2d Brooks, JJ.). Coogan

(Weick, Edwards * in United dissenting opinion, of this court completion firmed the of this After Co., majority 684 F.2d publication v. Stauffer Chemical prior but Cir.1982) (6th dissent, the doctrine of col- Supreme clarified opinion Court judg- entry estoppel. requires It v. Stauffer lateral States in United States the United — dissenting opin- —, provided above ment Company, 104 S.Ct. U.S. Chemical January af- ion. 78 L.Ed.2d 388 on Notes Committee challenging him from the laterally estopped rules observe: proposed plea proceed- voluntariness of his in these recognized Pleas of nolo contendere are maintains, Thus, ings. AMC the district Rule 11 of the Rules of by Criminal Pro- court here should have directed a verdict in cedure, although the law of numerous AMC’s favor on the basis that the voluntar- contrary. is to the The present states was as a Doherty’s plea iness of established gives principal rule effect of the tra- matter of law. also claims that each AMC plea, ditional characteristic of the nolo of other theories of is recovery i.e., avoiding guilt the admission of flawed. it claims that his Particularly, in pleas guilty.... is inherent of Exclu- 1985(2) cause of action under 42 U.S.C. § has plead guilty sion of offers to or nolo First, must fail three reasons. there is purpose promotion disposi- as its no of racial other ani- proof or class-based by compromise of criminal cases .. . Second, conspiracy requirement mus. (citations omitted). or persons” “two more under the statute 410 advisory Fed.R.Evid. committee note. Third, cannot be satisfied. the actual con- proved duct does not amount to an unlaw- however, does argue, AMC ful deterrence from “attending testify- civil action by Doherty issues raised this ing” purposes in court for the of the civil adjudicated were in the criminal already rights statute. also asserts that Do- AMC In motion for denying action. AMC’s sum herty’s purported causes of action under court, in the district Dis mary tort, conspiracy common law and fraud Judge correctly analyzed trict John Feikens must fail for Fi- proof. want of sufficient as follows: argument this nally, complains award that, urges Defendant in its motion exemplary damages improper under plea while the of nolo contendere itself is law, Michigan both because it was excessive claims, the denial plaintiff’s not a bar to damages punitive and because the were plea to set aside the does of the motion not in nature. compensatory operate estoppel. as collateral It con- coercion, duress, tends that the issues of II. fraud, fully voluntariness were liti- the court gated adjudicated by appeal AMC’s first defense on I it denying the motion. find unneces- that under the estop doctrine collateral to determine what issues were dis- sary asserting pel, Doherty prohibited directly by raised and determined tinctly in this earlier of nolo action that his motion, denying because and, hence, the court contendere was involun coerced proof tary. distinctly different standard 338 v. renders the doctrine of abused his discretion. United States Car proceeding in that abbia, 34, Cir.1975); (6th 512 F.2d 36 United estoppel inapplicable. collateral Saft, 1073, (2d v. 558 F.2d Cir. States agree. We Further, 1977). Judge out pointed explanation Feikens continued his proof Feikens burden of faced well by observing that it is established is a one.” v. plaintiff “heavy United States render the proof may different standards of aff’d, McNair, (D.D.C.1955), 18 F.R.D. 417 case inapplicable subsequent doctrine in a denied, (D.C.Cir.1956), 235 F.2d 856 cert. even between the same United parties. See (1957). 77 S.Ct. 1 L.Ed.2d 368 U.S. Real Es States v. National Association of observed, As the D.C. Circuit has a defend Boards, 485, 492-93, tate U.S. S.Ct. guilty ant should be allowed to withdraw a 711, 715-716, (1950); 94 L.Ed. 1007 Polcover cases.” plea only “extraordinary Treasury, v. 477 F.2d 1223 Secretary Roberts, (D.C. 570 F.2d (D.C.Cir.) denied, cert. U.S. Cir.1977). 38 L.Ed.2d 237 also See Moore, Practice, 1B J. Moore’s Federal might argued sentencing It that a (2d 1983). ruling ed. that differ allow a withdrawal of a judge could 0.418[1] proof setting ent standards of applied plea upon finding injustice of manifest aside of a nólo and to the establish preponderance of the evi- supported ment of pleading whether the act of nolo dence, the burden of therefore voluntary, contendere was we note that the proof greater ordinary is no than that in an proof upon plaintiff burden of was only However, civil such as case here. because