OPINION OF THE COURT
ALDISERT, Circuit Judge.
The question for decision is whether the district court erred in dismissing a complaint that alleged a federal prosecutor and a cooperating witness had conspired to use perjured testimony and to conceal exculpatory evidence in order to convict appellants. The lower court held that both the prosecutor and the witness were immune from civil suit and, therefore, dismissed the complaint for failure to state a claim upon which relief could be granted. We held these appeals pending the Supreme Court's decision in Imbler v. Pachtman, 424 U.S. 409, 96 S.Ct. 984, 47 L.Ed.2d 128, 44 U.S.L.W. 4250 (1976). We now affirm.
I.
Appellants Brawer and Ignomirello were tried and convicted in the Southern District of New York of transporting stolen United States Treasury Bills and of conspiring to do so. 18 U.S.C. §§ 2, 371, 2314; see United States v. Brawer, 482 F.2d 117 (2d Cir.), on remand, 367 F.Supp. 156 (S.D.N.Y.1973), aff'd 496 F.2d 703 (2d Cir.), cert. denied, 419 U.S. 1051, 95 S.Ct. 628, 42 L.Ed.2d 646 (1974). Prior to trial, appellee Mauceli pleaded guilty to a charge of conspiring to transport the stolen securities; he testified for the government; after trial, he was sentenced and ultimately placed on probation for two years. 482 F.2d at 121 n. 5. Appellee Horowitz was the prosecuting Assistant U.S. Attorney.
In September 1974, after the Second Circuit affirmed their convictions, appellees filed a civil complaint in the District Court for the District of New Jersey. They alleged that Horowitz and Mauceli had conspired with "divers other persons unknown to plaintiffs" "to injure, oppress and procure the convictions of plaintiffs with the knowing use of false and perjured testimony, and to deprive plaintiffs . . . of their rights to a fair and untainted trial secured and guaranteed to them by the due process clause of the Fifth Amendment . . . as well as by the Civil Rights Act, 42 U.S.C.A. §§ 1985(2), 1986."
Horowitz filed a timely motion to dismiss the complaint for want of personal and subject matter jurisdiction and for failure to state a claim. At the conclusion of an ex parte hearing,
Meanwhile, Mauceli had failed to answer the complaint timely and defaults were entered against him in December 1974. F.R. Civ.P. 55(a). Appellants then moved the district court to enter a default judgment as to Mauceli. F.R.Civ.P. 55(b). In February 1975, the United States responded on behalf of Mauceli with a motion to dismiss. Appellants moved to disqualify the United States; Mauceli countered with an affidavit, reciting in part that he had never received notice of the motion for a default judgment against him and that, in any event, he had been absent from the country for a short time "arranging my relocation under a new identity, with the assistance of the United States Government." In its June 1975 opinion, the district court held that the United States had legal authority to represent Mauceli,
Thus, the district court dismissed the complaint as to both defendants with prejudice and without costs. These appeals, timely noticed, followed. We have jurisdiction pursuant to 28 U.S.C. § 1291.
II.
Imbler v. Pachtman, supra, held that a state prosecutor is absolutely immune from a civil suit for damages under 42 U.S.C. § 1983
We have reviewed the policy considerations underlying the immunity accorded in Imbler, 424 U.S. at 420-431, 96 S.Ct. at 990-995, 47 L.Ed.2d 137-143, 44 U.S.L.W. at 4254-56. We believe that different rules should not obtain for federal prosecutors sued on a Bivens theory and for state prosecutors sued under § 1983. The policy considerations are exactly the same in each case. Accordingly, we hold that a federal prosecutor is absolutely immune from suit where the allegations relate solely to his initiating and presenting a criminal case. The allegations of the complaint implicating Horowitz all related to actions in his role as an advocate, rather than as an administrator or investigator. See Imbler, supra, 424 U.S. at 431, 96 S.Ct. at 995, 47 L.Ed.2d at 144, 44 U.S.L.W. at 4257 & n.33. Thus, the district court did not err in holding Horowitz immune from this suit and dismissing the complaint as to him for failure to state a claim.
III.
Before considering whether the district court properly dismissed the complaint as to Mauceli, we must determine whether the trial court erred in reaching the issue of Mauceli's immunity. The district court ruled that the United States had legal authority to represent Mauceli's interests. We agree.
Appellants' argument is multifaceted. First, they argue that the Department of Justice possesses no statutory or regulatory authority to represent a nongovernment defendant in a civil case. This contention approaches the frivolous. 28 U.S.C. § 517 provides:
The statutory language does not limit representation to any class of cases; the only explicit limitation is that the interests of
International Products Corp. v. Koons, 325 F.2d 403, 408 (2d Cir. 1963). See also Booth v. Fletcher, 69 U.S.App.D.C. 351, 101 F.2d 676, 681-82 (D.C.Cir.1938), cert. denied, 307 U.S. 628, 59 S.Ct. 835, 83 L.Ed. 1511 (1939).
Next, appellants contend that 28 U.S.C. § 518(b), which authorizes the Attorney General to dispatch someone to "conduct and argue any case in a court of the United States in which the United States is interested",
Thus, the proper focus on this appeal must be on whether the "interests of the United States" were at stake in the damage
Clearly, the government has an interest in the effective enforcement of its criminal laws. See Roviaro v. United States, 353 U.S. 53, 59, 77 S.Ct. 623, 627, 1 L.Ed.2d 639, 644 (1957). In many instances of sophisticated criminal activity, effective prosecution is impossible absent the cooperation of an "insider". Frequently, too, the only carrot the government can offer such an informer is the promise of a new identity.
Here, Mauceli cooperated with the government in obtaining the convictions of appellants for trafficking in stolen Treasury bills. In return, the government relocated him and gave him a new identity. See pages 833-834 supra. The government responded to the motion to disqualify it by asserting:
Moreover, Mauceli opined in his affidavit that the damage action was instituted "for the illicit, illegal purpose of obtaining my new identity in order to seek revenge upon me by the use of physical violence."
In these circumstances, we agree that the interests of the United States were involved. A contrary holding would deny the reality of the "justice system" that exists among some criminals and would tend to subvert an important aspect of the government's work for the "public interest in effective law enforcement." Roviaro v. United States, supra, 353 U.S. at 59, 77 S.Ct. at 627, 1 L.Ed.2d at 644.
IV.
We may now consider Mauceli's amenability to appellants' claims.
A.
Assuming arguendo that a Bivens action would lie against a witness at a federal trial,
Common-law witness immunity extends back to Lord Mansfield's comprehensive
Ibid. at 424. See also Veeder, Absolute Immunity in Defamation: Judicial Proceedings, 9 Colum.L.Rev. at 476: "[E]very consideration of public policy requires that they should be as fearless in testifying as the judge and jury are independent in weighing their testimony."
The policy arguments supporting common-law witness immunity obtain equally to immunize a single witness from a Bivens-type action. Indeed, where as here the gist of the complaint is that perjured testimony deprived appellants of their constitutional right to a fair trial, the claim boils down to one of "constitutional defamation".
Immunity from a civil damage suit, however, does not mean that a cooperating witness in a criminal trial can speak with complete impunity of his former cohorts. The trial judge may exclude inflammatory testimony. See Harper & James at 426. On cross-examination, counsel may seek to undermine the witness' credibility. Even if it develops only later that the witness committed perjury, and notwithstanding Lord Mansfield's statement to the contrary, the witness may be indicted and convicted of perjury. See Imbler v. Pachtman, supra, 424 U.S. at 437, 96 S.Ct. at 998, 47 L.Ed.2d at 147, 44 U.S.L.W. at 4259 (White, J., concurring in judgment).
B.
Next, we address the complaint's allegation that the prosecutor and the witness had conspired to use perjured testimony and to conceal exculpatory evidence in order to deprive appellants of a fair trial. These allegations, appellants contended, sufficed to state a claim under 42 U.S.C. § 1985(2).
We approach the perfidious syntax of § 1985(2) with some reserve for, as the First Circuit recently observed, there is a dearth of authority to light our way. Hahn v. Sargent, 523 F.2d 461, 469 (1st Cir. 1975), cert. denied, ___ U.S. ___, 96 S.Ct. 1495, 47 L.Ed.2d 754, 44 U.S.L.W. 3545 (Mar. 29, 1976).
Section 1985(2) derives from § 2 of the Ku Klux Act. Act of April 20, 1871, ch. 22, § 2, 17 Stat. 13.
Section 1985(2) clearly reaches private action. See Griffin v. Breckenridge, 403 U.S. 88, 96-101, 91 S.Ct. 1790, 1795-1797, 29 L.Ed.2d 338, 344-347 (1971). In this respect, it differs markedly from 42 U.S.C. § 1983, which derives from § 1 of the Ku Klux Act. Another important difference between the two sections is that § 1985 proscribes conspiracies, while § 1983 provides a civil remedy for specific acts of constitutional deprivation. See 1 Statutory History of the United States: Civil Rights 626 (B. Schwartz ed. 1970) [hereinafter cited as Schwartz]. "That the statute was meant to reach private action does not, however, mean that it was intended to apply to all tortious, conspiratorial interferences with the rights of others." Griffin v. Breckenridge, supra, 403 U.S. at 101, 91 S.Ct. at 1798, 29 L.Ed.2d at 348 (discussing § 1985(3)). To avoid the "constitutional shoals" attendant an impermissibly overbroad statutory interpretation, see ibid. at 102, 91 S.Ct. at 1798, 29 L.Ed.2d at 348, therefore, we must look to the specific conspiracies proscribed by Congress.
The debates on the Ku Klux Act as they relate to what is now § 1985(2) bespeak a Congressional intent to insulate witnesses, parties and grand or petit jurors from conspiracies to pressure or intimidate them in the performance of their duties, and an intent to guard against conspiracies the object of which is to deny citizens the equal protection of the laws. See Schwartz 621-24, 641-43. See also C. Antieau, Federal Civil Rights Acts: Civil Practice § 95 (1971). Senator George Edmunds of Vermont, who reported the bill out of committee, elaborated on this second objective in the following exchange:
Schwartz 623 (emphasis added).
After considering the statutory language and the apparent Congressional intent evidenced
The latter half of the subsection guards against those obstructions of justice "in any State or Territory" which have as their objects the denial of the equal protection of the laws. The complaint in the instant case
The first half of § 1985(2) aims at conspiracies the object of which is intimidation of or retaliation against parties or witnesses, or grand or petit jurors, in any court of the United States. The federal nexus, then, is not the class-based, invidiously discriminatory animus required by the second half of the subsection, but the connection of the proscribed activities to a federal court. Viewing the statute in this light and assuming appellants would seek to invoke this part, but see n.19 supra, the thrust of their argument must be that Horowitz and Mauceli "conspire[d] to . . . influence the verdict . . . or indictment of [the] grand or petit juror[s]" by agreeing to use perjured testimony and to conceal exculpatory evidence. After careful consideration we have concluded that such a construction would be impermissibly generous. We understand the first part of § 1985(2) to concern itself with conspiratorial conduct that directly affects or seeks to affect parties, witnesses or grand or petit jurors. The allegations of this complaint are different in kind. At best, the allegation is that the conspiracy "influenced" the jurors by precluding them from considering fully accurate evidence. We deem this "influence" to be too remote to fit within the intended ambit of § 1985(2).
The very language of the Ku Klux Act, see n.15 supra, buttresses us in our conclusion, for the statute specified that conspiracies to influence juries be "by force, intimidation, or threat". This approach was wholly consistent with each of the preceding clauses of § 2 of the 1871 Act. Although with respect to conspiracies to influence jurors the current § 1985(2) does not include these five words, we attach no talismanic significance to this difference. Rather, we believe it wholly logical and reasonable that, in compiling the Revised Statutes, Secretary Fish's commission deleted the words, recognizing that juries can be "influenced" as often and perhaps more effectively by positive inducements — such as money — as they can by negative inducements, including force, intimidation or threats. In our view, the deletion was not substantive, see n.16 supra, but sought to clarify the Congressional intent to reach all conspiracies to influence jurors directly.
C.
Having failed to state a claim under § 1985(2), a fortiori appellants failed to state a claim under § 1986. Hahn v. Sargent, supra, 523 F.2d at 469-70; Hamilton v. Chaffin, 506 F.2d 904, 914 (5th Cir. 1975).
V.
To summarize, we conclude that Horowitz was absolutely immune from appellants' allegations; that the public interest in full disclosure at trial of all relevant information tips the balance in favor of preserving to a single witness immunity from a Bivens action for damages; and that in these circumstances appellants failed to state a claim against Mauceli under either § 1985(2) or § 1986.
The judgment of the district court will be affirmed.
FootNotes
an action for damages will lie. 42 U.S.C. § 1986 provides:
Jurisdiction in the district court was predicated upon 28 U.S.C. §§ 1331(a), 1343.
(Emphasis added.)
Cong.Globe, 42d Cong., 1st Sess. 412-13 (1871).
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