McAndrew v. Lockheed Martin Corp.

                                                                 [PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT                  FILED
                                                        U.S. COURT OF APPEALS
                       ________________________           ELEVENTH CIRCUIT
                                                              MAR 08 2000
                                                           THOMAS K. KAHN
                              No. 97-8483                       CLERK
                       ________________________

                     D. C. Docket No. 1:96-CV-1584

ROBERT E. MCANDREW,
                                               Plaintiff-Counter-Defendant-
                                               Appellant,

                                  versus

LOCKHEED MARTIN CORPORATION,
Successor in Interest to LOCKHEED-
AERONAUTICAL SYSTEMS COMPANY,
a division of LOCKHEED CORPORATION,
                                               Defendant-Counter-Claimant-
                                               Appellee,

J.A. BLACKWELL, JR., T.A. GRAHAM, et al.,
                                           Defendants-Appellees.
                       ________________________

                Appeal from the United States District Court
                   for the Northern District of Georgia
                      _________________________
                             (March 8, 2000)
Before ANDERSON, Chief Judge, TJOFLAT, EDMONDSON, COX, BIRCH,
      DUBINA, BLACK, CARNES, BARKETT, MARCUS, WILSON, Circuit
      Judges,* and GODBOLD, Senior Circuit Judge.**

MARCUS, Circuit Judge:

      This case raises the discrete question of the applicability of the

intracorporate conspiracy doctrine to claims arising under 

42 U.S.C. § 1985

(2) and

alleging a conspiracy among corporate officers and the corporation itself to deter

by force, intimidation, or threat, an individual from testifying in a court of the

United States. These allegations plainly describe criminal conduct in violation of

18 U.S.C. § 1512

 and a criminal conspiracy in violation of 

18 U.S.C. § 371

.

Accordingly, we hold that just as the intracorporate conspiracy doctrine cannot

shield a criminal conspiracy from prosecution under the federal criminal code, the

doctrine cannot shield the same conspiracy, alleging the same criminal

wrongdoing, from civil liability arising under 

42 U.S.C. § 1985

(2). Therefore, we

reverse the district court’s order dismissing McAndrew’s § 1985(2) claim as barred

by the intracorporate conspiracy doctrine and remand for further proceedings

consistent with this opinion.



      *
           Judge Frank M. Hull recused herself and did not participate in this decision.
      **
         Senior U.S. Circuit Judge John C. Godbold elected to participate in this
decision pursuant to 

28 U.S.C. § 46

(c).
                                            2
                                           I.

      The facts of this case are straightforward. In 1993, the United States

Department of Justice was investigating Lockheed’s sale of three C-130 aircraft to

the Arab Republic of Egypt for possible violations of the Foreign Corrupt Practices

Act, 

10 U.S.C. § 2409

 et seq. Robert McAndrew had served as Lockheed’s

Director of International Marketing since 1989 and was responsible for negotiating

the sale of aircraft to foreign nations.

      In the fall of 1993, McAndrew and more than 30 other Lockheed employees

were subpoenaed to testify before a federal grand jury. McAndrew alleges that on

the morning he was scheduled to appear before the grand jury, June 21, 1994, he

received a phone call from T.A. Graham, Vice President of Business Development

at Lockheed (and McAndrew’s immediate supervisor). During the course of the

conversation Graham supposedly expressed his dissatisfaction to McAndrew about

McAndrew’s appearance before the grand jury, and told him specifically that “the

company was very unhappy with [McAndrew’s] decision to testify.” Indeed, the

complaint alleges that Graham made clear to McAndrew that “it would not be in

his best interest to testify.” McAndrew explained that he had no choice about

testifying, that he had been under subpoena since October, 1993, and that he had


                                           3
been ordered by the court to give testimony. McAndrew told Graham, according

to the complaint, that McAndrew had to appear and answer truthfully whatever

questions were posed to him. Plaintiff alleged that Graham was in Mexico when

he called McAndrew and that Graham made it clear by his words that he was not

only expressing his own personal sentiments, but was also speaking for Lockheed.

      On June 21, 1994, under compulsion of subpoena and a separate court order,

McAndrew appeared and testified before the grand jury regarding his knowledge

of the sale of aircraft to Egypt. Two days later, McAndrew alleged, he received

another call from Graham during which Graham told McAndrew that he, and

Defendants A. Goldfarb (Vice President for Administration) and T.F. Powell (Vice

President of Human Resources) were discussing what to do about McAndrew.

Graham allegedly told McAndrew to take a couple of days off. Thereafter,

according to the complaint, on June 28, 1994, Graham fired McAndrew by reading

him the following statement: “The company has decided to end our relationship.

This is due to your performance in International Marketing.”

      In June 1996, McAndrew sued Lockheed and five senior management

employees--Graham, Powell, Goldfarb, J.A. Blackwell (Lockheed’s Aeronautical

Senior President and Chief Executive Officer), and J.S. McLellan (President of

Lockheed Martin Aeronautical System Company, a division of Lockheed Martin)--


                                        4
alleging that they conspired to prevent him from testifying and then retaliated

against him by firing him after he testified in violation of 

42 U.S.C. §§ 1985

(2) and

1986, and the United States Constitution. McAndrew also brought supplemental

claims alleging violation of the Georgia Constitution and intentional infliction of

emotional distress. Lockheed filed counterclaims asserting that McAndrew

breached his fiduciary duties to the company and committed fraud in connection

with the sale of Lockheed aircraft to Egypt. In addition, each Defendant filed a

motion to dismiss.

      The district court granted Defendants’ motions to dismiss and dismissed the

complaint in its entirety. In doing so, the court held: first, that McAndrew’s §

1985(2) claim was barred by the intracorporate conspiracy doctrine; second, that

his § 1986 claim was derivative of the § 1985 claim and failed for the additional

reason that the one year statute of limitations had run; third, that his constitutional

claims failed because he did not allege state action; and finally, that his pendent

state claim for intentional infliction of emotional distress was barred by the statute

of limitations.

      McAndrew appealed the district court’s rulings dismissing his § 1985(2)

claim and his state law claim for intentional infliction of emotional distress but did

not appeal the trial court’s rulings dismissing his claim under § 1986 and


                                           5
dismissing his federal and state constitutional claims. A panel of this Court

affirmed the district court’s ruling dismissing McAndrew’s state law claim but

reversed the ruling dismissing the § 1985(2) claim holding that the intracorporate

conspiracy doctrine did not apply to § 1985 claims alleging civil rights violations.

See McAndrew v. Lockheed Martin Corp., 

177 F.3d 1310, 1313

 (11th Cir. 1999).

On August 11, 1999, we vacated this opinion and granted rehearing en banc.

                                            II.

       The only issue before us1 is whether the intracorporate conspiracy doctrine

applies to and bars a claim arising under Title 

42 U.S.C. § 1985

(2),2 alleging a

criminal conspiracy among a corporation and its employees to prevent by force,


       1
      We adopt the panel’s disposition affirming the district court’s dismissal of
McAndrew’s intentional infliction of emotional distress claim.
       2
          The portion of § 1985(2) at issue in this case provides: “If two or more
persons in any State or Territory conspire to deter, by force, intimidation, or threat,
any party or witness in any court of the United States from attending such court, or
from testifying to any matter pending therein, freely, fully and truthfully, . . . the party
so injured or deprived may have an action for the recovery of damages occasioned by
such injury or deprivation, against any one or more of the conspirators.” As defined
in Title 

28 U.S.C. § 451

, the phrase “court of the United States” in § 1985(2) refers
only to Article III courts and certain federal courts created by act of Congress, but not
to state courts. See Shaw v. Garrison, 

391 F. Supp. 1353, 1370

 (E.D. La. 1975), aff’d,

545 F.2d 980

 (5th Cir. 1977), rev’d on other grounds sub nom., Robertson v.
Wegmann, 

436 U.S. 584

 (1978). Section 1985(2) encompasses conspiracies to deter
testimony before a federal grand jury. See Heffernan v. Hunter, 

189 F.3d 405, 409

(3rd Cir. 1999); Brever v. Rockwell Int’l Corp., 

40 F.3d 1119

, 1125 (10th Cir. 1994);
McCord v. Bailey, 

636 F.2d 606, 618

 (D.C. Cir. 1980).
                                             6
intimidation, or threat, an individual from testifying in a federal court. We hold

that it does not. This outcome flows from the long-established conclusion that the

intracorporate conspiracy doctrine does not apply to criminal conspiracies.

Because a § 1985(2) claim alleging a conspiracy to deter a person by force,

intimidation, or threat from testifying in a federal court proceeding squarely and

unambiguously alleges a criminal conspiracy in violation of 

18 U.S.C. §§ 371

,

1512, the intracorporate conspiracy doctrine does not apply and, therefore, cannot

shield the Defendants from civil liability.

      The intracorporate conspiracy doctrine holds that acts of corporate agents

are attributed to the corporation itself, thereby negating the multiplicity of actors

necessary for the formation of a conspiracy. Simply put, under the doctrine, a

corporation cannot conspire with its employees, and its employees, when acting in

the scope of their employment, cannot conspire among themselves. The doctrine is

based on the nature of a conspiracy and the legal conception of a corporation. It is

by now axiomatic that a conspiracy requires a meeting of the minds between two

or more persons to accomplish a common and unlawful plan. See Bivens Gardens

Office Bldg., Inc. v. Barnett Banks Inc., 

140 F.3d 898, 912

 (11th Cir. 1998)

(explaining that a civil conspiracy ordinarily requires “an agreement between two

or more people to achieve an illegal objective, an overt act in furtherance of that


                                              7
illegal objective, and a resulting injury to the plaintiff”). However, under basic

agency principles, the acts of a corporation’s agents are considered to be those of a

single legal actor. Dussouy v. Gulf Coast Inv. Corp., 

660 F.2d 594, 603

 (5th Cir.

Nov. 1981); see also United States v. Hartley, 

678 F.2d 961, 970

 (11th Cir. 1982).

Therefore, just as it is not legally possible for an individual person to conspire with

himself, it is not possible for a single legal entity consisting of the corporation and

its agents to conspire with itself. See Dussouy, 

660 F.2d at 603

 (noting that “the

multiplicity of actors necessary to conspiracy” is negated when the agents’ acts are

attributed to the corporation and the corporation and its agents are viewed as a

single legal actor); Nelson Radio & Supply Co., Inc. v. Motorola, Inc., 

200 F.2d 911, 914

 (5th Cir. 1952) (explaining that “[i]t is basic in the law of conspiracy that

you must have two persons or entities to have a conspiracy. A corporation cannot

conspire with itself any more than a private individual can, and it is the general rule

that the acts of the agent are the acts of the corporation”).

      Not surprisingly, the intracorporate conspiracy doctrine first developed in

the anti-trust context where it seemed particularly logical to conclude that a single

corporation could not conspire with itself to restrain trade in the way imagined by




                                           8
Section 1 of the Sherman Antitrust Act.3 As the former Fifth Circuit explained in

Nelson Radio, while a single corporation could act in violation of Section 2 of the

Sherman Act4--which prohibits attempts to monopolize--it could not alone form a

contract, combination, or conspiracy in restraint of trade so as to violate Section 1

of the Act. See Nelson Radio, 

200 F.2d at 914

 (explaining that Section 1 of the

Sherman Act “does not purport to cover a conspiracy which consists merely in the

fact that the officers of the single defendant corporation did their day to day jobs in

formulating and carrying out its managerial policy”). To hold otherwise would

render Section 2 of the Act meaningless. See Hartley, 

678 F.2d at 971

.

      In Dombrowski v. Dowling, 

459 F.2d 190

 (7th Cir. 1972), the Seventh

Circuit extended the intracorporate conspiracy doctrine to § 1985 claims. The

Dombrowski court held that when two executives of the same firm make a decision

to discriminate in furtherance of the purpose of the business, that decision cannot




      3
          Section 1 of the Sherman Act, 

15 U.S.C. § 1

 provides: “Every contract,
combination in the form of trust or otherwise, or conspiracy, in restraint of trade or
commerce among the several States, or with foreign nations, is hereby declared to be
illegal.”
      4
         Section 2 of the Sherman Act, 

15 U.S.C. § 2

 provides: “Every person who
shall monopolize, or attempt to monopolize, or combine or conspire with any other
person or persons, to monopolize any part of the trade or commerce among the several
States, or with foreign nations, shall be deemed guilty of a felony . . . .”
                                           9
be called a conspiracy for purposes of § 1985(3).5 Id. at 196. See also Hartman v.

Board of Trustees, 

4 F.3d 465, 469-70

 (7th Cir. 1993) (holding the intracorporate

conspiracy doctrine is not avoided in § 1985(3) claims by a showing that corporate

employees were motivated in part by personal bias); Travis v. Gary Community

Mental Health Ctr., Inc., 

921 F.2d 108, 110

 (7th Cir. 1991) (reiterating, in response

to plaintiff’s § 1985(2) retaliation claim, the holding of Dombrowski that

“managers of a corporation jointly pursuing its lawful business do not become

‘conspirators’ when acts within the scope of their employment are said to be

discriminatory or retaliatory”).




      5
          Title 

42 U.S.C. § 1985

(3) provides: “If two or more persons in any State or
Territory conspire, or go in disguise on the highway . . . for the purpose of depriving
. . . any person or class of persons of the equal protection of the laws . . . or for the
purpose of preventing or hindering the constituted authorities of any State or Territory
from giving or securing to all persons within such State or Territory the equal
protection of the laws; or if two or more persons conspire to prevent by force,
intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his
support or advocacy in a legal manner . . .; in any case of conspiracy set forth in this
section, if one or more persons engaged therein do, or cause to be done, any act in
furtherance of the object of such conspiracy . . . the party so injured or deprived may
have an action for the recovery of damages, occasioned by such injury or deprivation,
against any one or more of the conspirators.”
                                           10
      Like a majority of the other circuits,6 we have followed the Seventh


      6
         See Benningfield v. City of Houston, 

157 F.3d 369, 378

 (5th Cir. 1998), cert.
denied, 

119 S.Ct. 1457

 (1999) (applying the intracorporate conspiracy doctrine to
plaintiffs’ § 1985(3) claims alleging defendant supervisors conspired to deprive
plaintiffs of their First Amendment and equal protection rights but finding the claims
fell within an exception to the doctrine which arises when corporate employees act for
their own personal purposes); Hull v. Cuyahoga Valley Joint Voc. Sch. Dist. Bd. of
Educ., 

926 F.2d 505, 509-10

 (6th Cir. 1991) (affirming district court’s judgment that
plaintiff’s § 1985(3) claims were barred by the intracorporate conspiracy doctrine and
reaffirming the circuit’s extension of the doctrine from the context of antitrust
litigation to allegations of conspiracy under the Civil Rights Act); Buschi v. Kirven,

775 F.2d 1240, 1252-53

 (4th Cir. 1985) (affirming the applicability of the
intracorporate conspiracy doctrine to bar plaintiffs’ § 1985(3) claims); Cross v.
General Motors Corp., 

721 F.2d 1152, 1156-57

 (8th Cir. 1983) (affirming district
court’s dismissal of plaintiff’s § 1985(3) claim as barred by the intracorporate
conspiracy doctrine where the corporate agents’ acts “arguably were within the scope
of employment”); Girard v. 94th St. & Fifth Ave. Corp., 

530 F.2d 66, 71-72

 (2d Cir.
1976) (holding plaintiff’s § 1985(3) claim alleging a conspiracy among a corporation
and its directors to discriminate against her on the basis of sex was barred by the
intracorporate conspiracy doctrine).
        A minority of circuits have, however, refused to apply the doctrine to certain
§ 1985 claims alleging conspiracies to violate civil rights. See Brever v. Rockwell
Int’l Corp., 

40 F.3d 1119

, 1127 (10th Cir. 1994) (declining to apply the intracorporate
conspiracy doctrine to a § 1985(2) claim because the intracorporate conspiracy
doctrine, “designed to allow one corporation to take actions that two corporations
could not agree to do, should not be construed to permit the same corporation and its
employees to engage in civil rights violations”); Stathos v. Bowden, 

728 F.2d 15, 21

(1st Cir. 1984) (finding that the “boundaries of an ‘intracorporate’ exception to §
1985(3) conspiracy provision should be narrower than in antitrust” and holding the
intracorporate conspiracy doctrine did not apply in the present case because
“defendants’ activities [] went beyond ‘a single act’ of discrimination”); Novotny v.
Great Am. Fed. Sav. & Loan Ass’n, 

584 F.2d 1235, 1256-59

 (3rd Cir. 1978) (rejecting
the application of the intracorporate conspiracy doctrine to a § 1985(3) conspiracy
claim alleging an eight year program of denial of equal opportunity holding that
neither the language or § 1985 nor the policies undergirding the section support
application of the doctrine to such claims), vacated on other grounds, 

442 U.S. 366

,
                                          11
Circuit’s extension of the intracorporate conspiracy doctrine to claims arising

under § 1985(3). In Chambliss v. Foote, 

562 F.2d 1015

 (5th Cir. 1977) (per

curiam), the former Fifth Circuit, in binding precedent,7 affirmed the district

court’s holding that the intracorporate conspiracy doctrine barred plaintiff’s §

1985(3) claim alleging that university officials’ decision not to renew her teaching

contract was the product of a conspiracy to violate her civil rights. Id. at 1015.

The district court concluded that “the university and its officials are considered as

constituting a single legal entity which cannot conspire with itself.” Chambliss v.

Foote, 

421 F. Supp. 12, 15

 (E.D. La. 1976). The former Fifth Circuit affirmed with

only the following statement: “We affirm on the basis of the district court’s

opinion.” Chambliss, 

562 F.2d at 1015

.8 Recently, in Dickerson v. Alachua

County Comm’n, __ F.3d __, __ (11th Cir. Jan. 14, 2000), a panel of this Court

followed Chambliss and held that the intracorporate conspiracy doctrine barred

99 S.Ct. 2345

, 

60 L.Ed.2d 957

 (1979).
      7
        Fifth Circuit decisions enacted prior to October 1, 1981 are binding precedent
in the 11th Circuit. See Bonner v. City of Prichard, 

661 F.2d 1206, 1209

 (11th Cir.
1981) (en banc).
      8
        Although Chambliss was issued on the summary calendar, it was published
and therefore is precedent in the Circuit. See United States v. Machado, 

804 F.2d 1537

, 1543 n.11 (11th Cir. 1986) (rejecting the notion that the prior panel precedent
rule does not apply when the challenged panel decision was decided on the non-
argument calendar by a per curiam opinion).
                                          12
plaintiff’s § 1985(3) claim alleging a conspiracy among employees of the same

public entity to deprive him of his civil rights. See id. Chambliss and Dickerson

remain the law in this Circuit. We have no occasion to revisit them today because

neither case addressed the precise question presented here: whether the

intracorporate conspiracy doctrine applies to and bars claims alleging a criminal

conspiracy among corporate officers and the corporation itself arising under 

42 U.S.C. § 1985

(2). Neither case involved a claim brought under § 1985(2) and,

more importantly, neither involved allegations of a criminal conspiracy to deter by

force, intimidation, or threat an individual from testifying before a federal grand

jury.

        We have long recognized an exception to the applicability of the

intracorporate conspiracy doctrine for intracorporate criminal conspiracies arising

under 

18 U.S.C. § 371

 of the federal criminal code.9 In Hartley, we refused to

apply the intracorporate conspiracy doctrine to shield from liability members of the

same corporation who were accused of a criminal conspiracy. 

Id.,

678 F.2d at 971

-

76. We considered an alleged conspiracy between a private food manufacturing

company and government inspectors to bypass the government’s food inspection



        9
       Title 

18 U.S.C. § 371

 makes it a crime for two or more persons to conspire
to commit any offense against the United States or to defraud the United States.
                                          13
guidelines. While we recognized that the conspiracy alleged did not require an

analysis of the intracorporate conspiracy doctrine because it involved government

inspectors who were not part of the corporation, we noted that “the provocative

nature of the issue compels us to rule on its application to the facts of this case.”

Id. at 970

. We followed former Fifth Circuit precedent in holding that the

intracorporate conspiracy doctrine does not apply to alleged intracorporate criminal

conspiracies. We wrote:

      The former Fifth Circuit recognized this exception to the [single
      corporate entity] fiction in criminal conspiracy cases in Dussouy v.
      Gulf Coast Investment Corp., 

660 F.2d 594

 (5th Cir. 1981) when it
      stated: “a corporation can be convicted of criminal charges of
      conspiracy based solely on conspiracy with its own employees.” 

Id. at 603

. We now adopt this exception and hold that it is possible for a
      corporation to conspire with its own officers, agents and employees in
      violation of 

18 U.S.C. § 371

.

Id. at 972

.

      The First, Sixth, Eighth, and Ninth Circuits have all ruled similarly. See

United States v. Hughes Aircraft Co., 

20 F.3d 974, 978-79

 (9th Cir. 1994) (noting

that the intracorporate conspiracy doctrine “has never been applied to criminal

cases” and holding that “a corporation may be liable under § 371 for conspiracies

entered into by its agents and employees”); United States v. Ames Sintering Co.,

927 F.2d 232, 236

 (6th Cir. 1990) (noting that “‘in the criminal context a

corporation may be convicted of conspiring with its officers’”) (quoting United

                                           14
States v. S & Vee Cartage Co., 

704 F.2d 914, 920

 (6th Cir. 1983)); United States v.

Hugh Chalmers Chevrolet-Toyota, Inc., 

800 F.2d 737, 738

 (8th Cir. 1986) (holding

that “a corporation may be responsible when two or more high ranking or

authoritative agents engage in a criminal conspiracy on its behalf”); United States

v. Peters, 

732 F.2d 1004, 1007-08

 (1st Cir. 1984) (upholding the convictions of

two corporate officers convicted of criminal conspiracy under 

18 U.S.C. § 371

because, despite the fact that the defendants were performing actions they were

authorized to perform and were doing so with an intent to benefit the corporation,

“the corporate veil does not shield them from criminal liability”). See also United

States v. Wise, 

370 U.S. 404

, 417, 

82 S.Ct. 1354

, 

8 L.Ed.2d 590

 (1962) (Harlan, J.

concurring) (agreeing with the majority that an individual corporate officer is

subject to prosecution under Section 1 of the Sherman Act because “the fiction of

corporate entity, operative to protect officers from contract liability, had never

been applied as a shield against criminal prosecutions . . . .”).

      The rationale supporting the idea that the intracorporate conspiracy doctrine

cannot shield corporate employees and corporations accused of criminal

conspiracies is simple enough. As we explained in Hartley, the original purpose of

the corporate entity fiction was to expand rather than shrink corporate

responsibility by making a corporation answer for the negligent acts of its agents.


                                           15
See Hartley, 

678 F.2d at 970

 (explaining that “[b]y personifying a corporation, the

entity [] [is] forced to answer for its negligent acts and to shoulder financial

responsibility for them”); see also Dussouy, 

660 F.2d at 603

 (noting that “[t]he

original purposes of the rule attributing agents’ acts to a corporation were to enable

corporations to act, permitting the pooling of resources to achieve social benefits

and, in the case of tortious acts, to require a corporation to bear the costs of its

business enterprise”). “The fiction was never intended to prohibit the imposition

of criminal liability by allowing a corporation or its agents to hide behind the

identity of the other.” Hartley, 

678 F.2d at 970

. As the Fifth Circuit emphasized in

Dussouy, in situations where a criminal conspiracy is alleged “the action by an

incorporated collection of individuals creates the ‘group danger’ at which

conspiracy liability is aimed, and the view of the corporation as a single legal actor

becomes a fiction without a purpose.” 

Id.,

660 F.2d at 603

.

      A claim arising under § 1985(2), such as McAndrew’s, alleging a conspiracy

to deter by force, intimidation, or threat, an individual from testifying in a federal

court, necessarily alleges criminal activity in violation of 

18 U.S.C. § 1512

--the

criminal statute prohibiting tampering with a witness--and a criminal conspiracy in

violation 

18 U.S.C. § 371

. Section 1512(b) specifically provides:

      Whoever knowingly uses intimidation or physical force, threatens, or
      corruptly persuades another person, or attempts to do so, or engages in

                                           16
      misleading conduct toward another person, with intent to--(1)
      influence, delay, or prevent the testimony of any person in an official
      proceeding ; . . . . shall be fined under this title or imprisoned not more
      than ten years, or both.

      An “official proceeding,” as referred to in § 1512(b), is explicitly defined in

18 U.S.C. § 1515

 to include a federal grand jury proceeding. Indeed, § 1512(b)

applies to attempts to influence testimony in a broader range of proceedings than

does the first clause of § 1985(2). Clause 1 of § 1985(2) applies only to

conspiracies to deter or alter testimony in any federal court proceeding. Section

1512, however, applies to attempts to prevent or influence testimony not only in

federal courts but also before Congress, federal agencies, and insurance

regulators.10 Moreover, § 1512(b) subsumes but is significantly broader than the

provision of § 1985(2) making it illegal to “conspire to deter by force, intimidation,

or threat” any person from testifying in a pending federal court matter. Section

1512(b) not only makes it a crime to attempt to deter testimony by force,



      10
          Title 

18 U.S.C. § 1515

 provides that the term “official proceeding” in § 1512
means: “A) a proceeding before a judge or court of the United States, a United States
magistrate, a bankruptcy judge, a judge of the United States Tax Court, a special trial
judge of the Tax Court, a judge of the United States Claims Court, or a Federal grand
jury; B) a proceeding before Congress; C) a proceeding before a Federal Government
agency which is authorized by law; or D) a proceeding involving the business of
insurance whose activities affect interstate commerce before any insurance regulatory
official or agency or any person engaged in the business of insurance whose activities
affect interstate commerce” (emphasis added).
                                          17
intimidation, or threat, as does § 1985(2), but also makes it a crime to try to deter

such testimony through sheer persuasion without the use of physical or economic

threat, as long as one does so with a corrupt purpose. See United States v. Shotts,

145 F.3d 1289, 1301

 (11th Cir. 1998) (sustaining a conviction under § 1512(b)

where an employer told an employee not to talk to investigators so that she would

not be bothered, finding that a jury could reasonably have inferred that the

employer was attempting with improper motive to persuade the employee not to

talk to investigators); see also United States v. Tocco, 

135 F.3d 116, 126-27

 (2d

Cir. 1998) (sustaining defendant’s conviction of witness tampering based on

evidence showing defendant had substantial influence over witness because he was

her landlord and her employer, and had paid for an attorney to help her prepare her

testimony); United States v. Gabriel, 

125 F.3d 89, 102-03

 (2d Cir. 1997) (holding

that defendant’s attempt to mislead a client by providing it with false information

was illegal witness tampering because defendant was trying to corruptly persuade

or mislead the client with the intent of influencing its potential testimony before

the grand jury); United States v. Morrison, 

98 F.3d 619, 629-30

 (D.C. Cir. 1996)

(holding that defendant’s corrupt intent to influence testimony and exhortation to

witness not to testify truthfully was enough to justify his § 1512(b) conviction,

even with no direct threat of either physical or economic harm); United States v.


                                          18
Altman, 

48 F.3d 96, 99, 104

 (2d Cir. 1995) (holding that witness’s testimony that

he lied to investigators because his friend, the defendant, had asked him to do so,

was sufficient to sustain the defendant’s conviction under § 1512(b)). Plainly, by

stating a claim under § 1985(2), alleging that Defendants attempted to deter him by

force, intimidation, or threat from testifying before the federal grand jury about

Lockheed’s activities by threatening him with job-related sanctions, McAndrew

also alleged a crime under § 1512(b) and a criminal conspiracy under § 371.

      The only real question is whether the criminal conspiracy exception to the

intracorporate conspiracy doctrine is somehow limited to cases in which the

underlying criminal conspiracy arises under 

18 U.S.C. § 371

 rather than under 

42 U.S.C. § 1985

(2). We can discern no basis for drawing this distinction. Indeed

both the rationale for the intracorporate conspiracy doctrine and the legislative

history of § 1985(2) counsel in favor of a consistent application of the criminal

conspiracy exception to the intracorporate conspiracy doctrine regardless of

whether the criminal conspiracy arises under the federal criminal or civil code.

      As we have explained, the corporate entity fiction was designed to expand

corporate liability by holding the corporation liable for the acts of its agents. The

intracorporate conspiracy doctrine shielding corporate employees and the

corporation itself from unlawful conspiracy claims was a product of this fiction.


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However, the fiction was never intended nor used to shield conspiratorial conduct

that was criminal in nature. See Hartley, 678 F2d at 970. As the Fifth Circuit

explained in Dussouy, criminal conspiracies pose the precise group danger at

which conspiracy liability is aimed, making the corporate entity doctrine in such

cases a “fiction without a purpose.” Id., 

660 F.2d at 603

. Because, the underlying

conspiratorial conduct being challenged is precisely the same regardless of whether

a criminal conspiracy is alleged under § 371 or under § 1985(2), there is no reason

to differentiate between the criminal and civil conspiracy statutes. In either case,

when a criminal conspiracy is alleged, the underlying conduct is of a sort that

neither the corporate entity fiction nor the intracorporate conspiracy doctrine was

intended or used to shield.

      Moreover, application of the criminal conspiracy exception to a § 1985(2)

claim is altogether consonant with the original purpose of that statute. Section

1985 derives from Section 2 of the Ku Klux Klan Act of 1871 also known as the

Civil Rights Act of 1871.11 The Act was passed in response to a rising tide of

Klan terrorism against blacks and Union sympathizers and was designed to

proscribe conspiracies “having the object or effect of frustrating the constitutional



      11
      The official title was “An Act to enforce the provisions of the Fourteenth
Amendment to the Constitution of the United States, and for other purposes.”
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operations of government through assaults on the person, property, and liberties of

individuals.” See Comment, A Construction of Section 1985(c) in Light of its

Original Purpose, 

46 U. Chi. L. Rev. 402

, 402-03 (1979; see also District of

Columbia v. Carter, 

409 U.S. 418, 425-26

, 

93 S.Ct. 602

, 

34 L.Ed.2d 613

 (1973);

Brawer v. Horowitz, 

535 F.2d 830, 837-38

 (3rd Cir. 1976); Civil Rights 591

(Bernard Schwartz ed., 1970); Janet A. Barbiere, Conspiracies to Obstruct Justice

in the Federal Courts: Defining the Scope of Section 1985(2), 

50 Fordham L. Rev. 1210

, 1210-1229 (1982) . The criminal conspiracy exception to the intracorporate

conspiracy doctrine promotes the original purpose of the Act by ensuring that

individuals and groups can be prosecuted for their criminal activities regardless of

their status of incorporation. The exception ensures that conspiratorial criminal

conduct is not shielded from civil liability under § 1985(2) of the Civil Rights Act

simply by the expedient of incorporation.

      Indeed, even courts that generally apply the intracorporate conspiracy

doctrine to § 1985 claims have recognized that an exception should exist when the

conspiracy alleged is criminal in nature. For example, in Dombrowski, the

Seventh Circuit, while extending the intracorporate conspiracy doctrine to §

1985(3) claims generally, suggested in dicta that the doctrine would not shield

criminal conspiracies from § 1985 liability. In discussing the scope of § 1985(3),


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the Seventh Circuit explained: “We do not suggest that an agent’s action within

the scope of his authority will always avoid a conspiracy finding. Agents of the

Klan certainly could not carry out acts of violence with impunity simply because

they were acting under orders from the Grand Dragon.” Id, 

459 F.2d at 196

.

Similarly, in Hartmann, the Seventh Circuit noted that, for the reasons it had

expressed in Dombrowski, not all discriminatory action taken within the scope of

employment and attributable to the corporation is exempt from 1985(3)). See 

id.,

4 F.3d at 470

.

      Simply put, we conclude that the criminal conspiracy exception to the

intracorporate conspiracy doctrine applies regardless of whether the criminal

conspiracy arises under 

18 U.S.C. § 371

 or under 

42 U.S.C. § 1985

. Because a

claim, such as McAndrew’s, alleging an intracorporate conspiracy to deter a

person from testifying in a court of law by force, intimidation, or threat,

necessarily alleges a criminal conspiracy, the intracorporate conspiracy doctrine

cannot apply. Accordingly, we reverse the district court’s order of dismissal on

this issue and remand for further proceedings consistent with this opinion.

      REVERSED and REMANDED.




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