This document was filed in the United States Court of Appeals July 27, 2000

      Plaintiff Whitewater grand jury witness Patrick Knowlton sued under 42 U.S.C. 1985(2) for witness tampering that began October 26, 1995, the very day that the FBI subpoenaed him to testify about the death of deputy White House Counsel Vincent Foster.

     The Independent Counsel had prepared Knowlton's subpoena two days earlier – October 24, 1995 – the very day that the London Sunday Telegraph appeared in U.S. newsstands. In that Telegraph was an article about the OIC's Foster death probe that reported that Knowlton had said "his [1994 FBI] statements have been falsified," and that "the FBI told outright lie[s]" about what he had seen at Fort Marcy Park, 70 minutes before the police arrived at the crime scene. The article concluded, "Starr's investigators have never talked to Knowlton. The federal grand jury has never summoned him to give sworn testimony..."

      Knowlton sues witness-tampering participants, as principals, and conspirators to the overarching cover-up of the facts of Mr. Foster's death, vicariously. His allegations, pre-discovery, prove alarming failures of our government:

• Executive branch. The Ethics in Government Act, designed to ensure confidence in the integrity of our government by providing investigations independent of those being investigated, was thwarted by the OIC's use of the FBI – a federal investigative agency that it had twice previously closed the case as a simple suicide – presenting the conflict of interest that the Act is designed to avoid.

• Legislative branch. The 1994 Senate Banking Committee was the only Committee that claimed to have looked into the death, but its limited investigative jurisdiction precluded it from investigating the facts of the death. And Congress failed to reenact the Independent Counsel law, relegating the task of ensuring that justice has been done to regulatory independent counsels.

• Press. The press has acted mostly as a conduit for the official announcements and conclusions of the executive branch, like a public relations department.

• Grand jury abuse. Transplanted from England, and frequently referred to as the people's panel, the grand jury was valued as a kind of people's watchdog, and as a means of protesting abuses by the crown's emissaries. The Founders saw the grand jury as a bulwark for the individual against arbitrary or malevolent prosecutors. Today the grand jury is more of a prosecutor's panel, but this pre-constitutional institution is still a vehicle for effective citizen participation in government, and is still a people's panel, not captive or relegated by the Constitution to a position within any branches. In the instant case, the conduct alleged thwarted the grand jury's great power.

        Knowlton seeks redress under a law designed to protect the sanctity of the federal Court process, and his cause involves fundamental rights and questions vital to the nation's public policy. See Hobson v. Wilson, 737 F.2d 1, 31 (D.C., 1984), citing 5C Wright & A. Miller, Federal Practice and Procedure 1230 (1969 & 1984 Supp.) :

"The court should remember that fundamental rights and important questions of public policy are involved in actions under the various civil rights statutes and should not dismiss the complaint unless it clearly is frivolous or fails to state a claim for relief."

2. FACTS

The Special Division of this Court ordered Knowlton's 20-page submission included in the Appendix to the OIC's Report on the Death of Vincent W. Foster. The OIC Appendix was released to the press and public on October 10, 1997 with the Independent Counsel's Report on the matter. That Appendix includes a summary of the facts of this cause, and is a part of the district court record. Excerpts from the OIC Appendix (Ex 1 attached), and from Knowlton's October 21, 1998 Amended Complaint (Ex 2 attached) follow.

OIC Appendix, pp. 1-2:

Facts. While heading home in heavy traffic on the George Washington Memorial Parkway, and facing over a two hour commute, Patrick Knowlton pulled into Fort Marcy Park at 4:30 p.m. on July 20th, 1993, to relieve himself. Patrick parked close to the main footpath entrance into the park, between the only two cars in the small parking lot, which were parked just four spaces apart.

To Patrick's left was parked an unoccupied mid-1980s rust-brown four-door Honda sedan with Arkansas tags (closest to the footpath entrance), and on his right was a late model metallic blue-gray sedan, backed into its parking space. A man was seated in the driver's seat of the blue-gray sedan. Immediately after Patrick parked, the man lowered the passenger side electric window and stared at him, menacingly. This unnerved Patrick as he exited his car.

As he started from his car toward the footpath, Patrick heard the blue-gray sedan's door open. Apprehensive, Patrick walked to the sign bordering the footpath entrance to the park and feigned to read its historical information while nonchalantly glancing to his right to see if the man was approaching. He saw the man leaning on the roof of the driver's side of his blue-gray sedan, watching him intently. Patrick then cautiously proceeded 75 feet down the footpath's left fork to the first large tree, in the opposite direction from which Mr. Foster's body was later recovered.

As he relieved himself, Patrick heard the man close his car door. Because the foliage was dense, he couldn't see the parking lot and hoped the man wasn't approaching. As Patrick walked back to the parking lot with a heightened sense of awareness, he scanned the lot but did not see the man. Patrick surmised that the man had either gotten back in his car or perhaps could even be crouching between the brown Honda and Patrick's car preparing to attack him.

In order to maintain his distance from the space between the two cars until he learned the man's whereabouts, Patrick walked directly toward the driver's side door of the brown Honda, and then around the back of it. As Patrick reached the driver's side door of the brown Honda, he looked through the window. He also looked into the back seat as he walked the length of the car. He saw a dark colored suit jacket draped over the driver's seat, a briefcase on the front passenger's seat, and two bottles of wine cooler on the back seat. As he reached the back of the Honda, Patrick was relieved to see that the man had returned to his own vehicle. The man was still staring fixedly at him.

Of the five things Patrick witnessed at the park ((1) the man and his car, (2) the suit jacket, (3) the briefcase, (4) the wine cooler, and (5) the mid-1980s Arkansas brown Honda), the Honda itself is the most relevant. It was not Mr. Foster's car. When Mr. Foster's body was discovered approximately 70 minutes after Patrick had left the park, Mr. Foster had been dead for well over 70 minutes...

Amended Complaint, ¶¶ 102-103:

        On October 13, 1995... plaintiff realized for the first time that Monroe had falsified his account... On October 22, 1995, a newspaper article entitled "Death in the Park: Is this the killer?" appeared in the London Sunday Telegraph... The article reported...

When the Sunday Telegraph showed him police... summaries of his testimony – which he had not seen... saying his statements have been falsified... "That's an outright lie," he said, angrily... "They went over it about 20 times... telling me that this was Foster's car," said Knowlton. "But I was quite adamant about it. I saw what I saw, and I wasn't going to change my story"... Starr's investigators have never talked to Knowlton. The federal grand jury has never summoned him to give sworn testimony...

OIC Appendix, p. 13, Exhibit 2 of 5:

OIC Appendix, p. 12, Exhibit 1:

3. DISPOSITIVE ORDERS

On September 9, 1999, the district court:

• Denied plaintiff the opportunity to conduct any discovery

• Denied plaintiff leave to amend his Complaint

• Granted all defendants' summary judgment motions

On November 29, 1999, the district court:

• Denied plaintiff's motion to alter or amend its judgment

On June 27, 2000, the panel ruled that:

• The case presented no substantial question and granted all defendants further summary relief

      Neither Court criticized plaintiff's theories of the case – first, that some defendants are liable as principals in the section 1985 violation, and second, that others are vicariously liable as conspirators to the overarching conspiracy to cover-up the facts of the death. But the Courts did not correctly address the vicarious liability issues (discussed below page 14).

4. ARGUMENT

      Plaintiff is entitled to brief the record in this case, for the Court's de novo review, on the issues of whether he failed to meet his burden, pre-discovery, as a matter of law, on five issues:

• The existence of the section 1985(2) violation

• Defendant Alouri's participation in that civil rights violation

• The existence of the overarching conspiracy

• The section 1985 violation being subsidiary to the overarching conspiracy

• Eight defendants' participation in the overarching conspiracy

The record in this case – June 6, 1997:

42 U.S.C. 1985(2). In June 1997, eight months after filing suit, the plaintiff filed his opposition to defendants' summary judgment motions. It included 111 exhibits, all but 8 of which were from the public record in the case. Plaintiff met his burden to defeat summary judgment under his section 1985(2) claim, with 7 exhibits. They include three affidavits by witnesses to the intimidation, sworn to reports of two experts who know of instances of the technique of witness intimidation being used (one of whom reported having used it), and the affidavit and report of a Harvard-trained psychiatrist regarding plaintiff's account of the intimidation, as well as of plaintiff's mental stability.

      Overarching conspiracy. And plaintiff met his burden to defeat summary judgment under his conspiracy count. Of the 111 exhibits which plaintiff submitted in his June 1997, in opposition to summary judgment motions, 107 prove, prima facie, twenty points of conspiracy.   A summary of thirteen of these twenty points is included in the Court-ordered OIC Appendix (Ex 1). These 20 points are divided into 6 categories:

• The initial FBI investigation

• The U.S. Park Police investigation

• Civilian vehicles in the Fort Marcy lot when authorities arrived

• The gun

• Other forensic evidence

• Depression

The record – October 21, 1998 Amended Complaint:

      On October 21, 1998, plaintiff filed his verified Amended Complaint, naming additional defendants, as plaintiff had initially apprised the Court that he intended to do at the December 12, 1997 status hearing. The adjudication of this appeal depends on the sufficiency of that pleading, at the pre-discovery stage. The Court held, pre-discovery, that plaintiff's theory of the case was wrong. All the following were unrelated coincidences, as a matter of law:

• Foster's car was a 1989 gray Honda. Foster was dead by the time Knowlton saw a "1983 or 1984" "brown" Arkansas Honda. So Monroe wrote that Knowlton saw a "1988-90" Honda, and told Knowlton "not to go to the press."   Knowlton complied. Six witnesses corroborate Knowlton's account of the car.

• The night before Monroe's second interview of Knowlton, defendant Bicket, who had been "briefed at FBI headquarters," tire-ironed Knowlton's car – Park Police investigated & the USA refused to prosecute.

• The same day the Telegraph appeared in the U.S., the OIC prepared Knowlton's grand jury subpoena.

• The day that the FBI served the subpoena was the same day that the harassment started.

• 25 or more men came together and each intimidated Knowlton, and discredited him. Experts identify this technique as being used by the government to intimidate a witness, or alternatively to discredit a witness.

• Defendant Alouri, depicted as the 16th of 27 men above (p. 8), affixed his plates to another's car, followed Knowlton by car, sped through a red light as the plates were being read, and when later identified, expressed surprise that "it" concerned Foster. Then he replaced the plates, telling DMV that he had "lost" them.

• The 1985(2) intimidation by 25 or more men was punctuated at either end by visits by Bransford. In his first visit, Bransford told Knowlton to "call if you have any problems." In the second, Bransford said that whether Knowlton should trust him was "a good question," and that he had worked for Fiske where he investigated the death with defendant Monroe.

• The OIC/FBI failed to respond to Knowlton's pleas for help until after the intimidation subsided.

• The OIC asked Knowlton before the panel, "Did he [the man in the park] touch your genitals?" – this and other questions discredited Knowlton before the grand jury.

• Edwards seized the first photographs of the body and spilled blood to hide the neck wound.

• Beyer removed the soft palate and tongue before the police arrived to hide the entrance wound on the neck and the absence of such a wound in the mouth.

• The FBI lab concealed forensic evidence and falsified its lab reports.

       Plaintiff had met his burden to defeat summary judgment on all but the last three of these dozen points in his June 1997 filing. In the Court's view, as a matter of law, innocent and unrelated are: Knowlton (and others) saw an older brown Arkansas Honda, and not Foster's '89 gray Honda, when Foster was dead, Monroe wrote that Knowlton saw a "1988-90," the Telegraph printed that Monroe's reports were "lies," whereupon the OIC prepared Knowlton's secret grand jury subpoena, the FBI served it, whereupon the harassment began. Also, only the government has the knowledge and ability to employ this technique to intimidate or discredit a witness, and the FBI agent who served the subpoena (and later ignored – then intimidated Knowlton) worked with Monroe in the previous "independent" probe. Nor does the Court see proof of the existence of the overarching conspiracy as relevant. The Court's view is that Park Police Sergeant Edwards's seizure of photographs and then spilling blood to hide the neck wound, is irrelevant, as are Pathologist Beyer's actions in concealing the neck wound – absent evidence of communication of conspiratorial agreement. These allegations are already proven.

       Defendants cite no authority on conspiratorial agreement comparable to these facts – where the existence of cover up, and defendants' participation in it, is clear, and where the civil rights violation was clearly committed in furtherance of the conspiracy.

A review of the record – September 16, 1999:

       In their oppositions to plaintiff's motion for leave to file his October 21, 1998 Amended Complaint, no defendant contested any new allegation. The Court held that plaintiff could not prove his case. Yet, in Exhibits 3 and 4, the 511-page filing together with its 630 pages of exhibits, proves plaintiff's case. Those documents were initially filed September 10 with Cross-motion for entry of partial summary judgment on the issue of the existence of conspiracy – ignorant of the Court's previous day's entry of its dispositive order. On September 16, 1999, these documents were filed with plaintiff's Rule 59(e) motion for reconsideration.

 

The Courts' opinions:

       On November 29, 1999, the district court denied plaintiff's motion to alter or amend its judgment, by, inter alia, reiterating its ruling that plaintiff failed to "offer sufficient evidence" of conspiratorial agreement, and that the filing, which it declined to consider, would change its view.

This court has already ruled, however, that such evidence is not enough to sustain this action. The Court determined that "Plaintiff has failed to offer sufficient evidence from which a reasonable juror could determine that there existed a meeting of the minds between any of the alleged conspirators," and that, [t]herefore, his claim pursuant to 1985(2) must be dismissed." Memorandum at 29.

      The district court's September 9 memorandum distinguished the two classes of defendants, but discussed them interchangeably. And it incorrectly held that plaintiff could not sue members of the overarching conspiracy unless he was also prosecuting defendants engaged in the section 1985 violation. The panel's opinion made no distinction between the section 1985(2) principals and those charged to be vicariously liable as participants to its overarching conspiracy, nor did its opinion appear to address the six additional defendants that plaintiff sought to name on October 21, 1998, in his proposed Amended Complaint (Ex 2).

       Both decisions improperly imposed on plaintiff the burden to proffer "evidence of communication" in support of his allegations of conspiratorial agreement, instead of holding that participation in the conspiracy sufficed to raise the inference of conspiratorial agreement. Imposing the burden to proffer direct evidence of communication of conspiratorial agreement, pre-discovery, was error.

CONCLUSION

       The prosecution of plaintiff's civil rights cause includes the application of the law of civil conspiracy: All individual participants in the overarching conspiracy are vicariously liable for the section 1985(2) violation, as done in furtherance of the overall conspiracy, within its scope, and reasonably foreseeable as its necessary or natural consequence. Plaintiff has met his burden on civil conspiracy, and has met his burden against Alouri as principal in the section 1985(2) violation.

       A de novo review of the record in this case shows that defendants were granted summary judgment as a matter of law, pre-discovery, only by drawing all inferences in the moving parties' favor. Whether plaintiff met his burden to proceed to discovery in this case is a substantial question, and the panel erred in declining plaintiff his opportunity to seek redress by briefing his case.

       This cause presents the judiciary with an issue of extraordinary importance to the public – a chance for the corruption in this matter to be exposed and a tool for America to judge whether our Constitution's separation of powers functions as an "auxiliary precaution" against corruption, as James Madison put it – or whether the Founders' experiment is in danger of failing. Plaintiff's cause proves alarming failures of effective government oversight. A more honest government is at stake.

       For the foregoing reasons, plaintiff respectfully requests rehearing and suggests that the case be reheard en banc, and that the case thereafter proceed to briefing for de novo review.

Respectfully submitted, 

John H. Clarke
Bar # 388599
Counsel for Appellant
       Patrick James Knowlton
1730 K Street, NW
Suite 304
Washington, DC 20006
(202) 332-3030

_______________________

See McCord v. Bailey, 636 F.2d 606 (D.C. Cir. 1980); approved Kush v. Rutledge, 460 U.S. 719 (1983).

42 U.S.C. § 1985(2) (Count I): "Conspiracy to interfere with civil rights," "Obstructing justice; intimidating party, witness, or juror," in part:

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...

Nesmith v. Alford, 318 F.2d 110 (5th Cir. 1963), cert. denied, 374 U.S. 975, 84 S.Ct. 489, 11 L.Ed2d 420 (1964) (civil rights case upholding conspiracy liability as "the legal mechanism... to impose liability."); Hobson v. Wilson, 737 F.2d 1 (D.C. Cir. 1984): "We have not found either in case law or in the language of the statute any reason to exclude all federal officers from the meaning of "persons" in section 1985(3)... Considerable case law rejects the proposed limitation on section 1985(3) and supports our conclusion..."; See Halberstam v. Welch, 705 F.2d 472, 476, 479 (D.C. Cir. 1983): ("An agreement to participate in a wrongful course of action suffices to create vicarious liability..."); United States v. Sampol, 636 F.2d 621 (DC Cir., 1980), citing Pinkerton v. U.S., 328 U.S. at 676: "[A] conspirator can be found guilty... so long as the act was done in furtherance of the conspiracy, was within the scope of the unlawful project, and could be reasonably foreseen..."

See June 6, 1997, Opposition to Summary Judgment Motions, at 1-2:

Exhibit 1: The Affidavit of Plaintiff's girlfriend (a Ph.D. consultant and educator), who witnessed the harassment of Thursday, October 26 and the morning of October 27, 1995, states in part: "[A]t one point, I became so panic-stricken that I had to keep from crying. I have never witnessed anything like it before or since. It was intentional, coordinated, intimidating, and extremely unnerving;"

Exhibit 2: Plaintiff's Affidavit...

Exhibit 3: The sworn to opinion of Plaintiff's polygraph examiner, Mr. Paul Minor, wherein he reported: "deception not indicated;"

Exhibit 4: Affidavit of the reporter who witnessed the harassment on Friday afternoon, October 27, who described it as an "obvious attempt to intimidate."

Exhibit 5: Mr. Gene Wheaton, a 40-year veteran investigator stated: "[In his] opinion, the actions described in the Amended Complaint were intended to intimidate Plaintiff to try to prevent him from testifying freely, fully, and truthfully; "

Exhibit 6: Mr. Ted L. Gunderson, a 28-year veteran of the FBI and former Senior Special Agent in Charge of the FBI's Los Angeles Division, wrote that he is familiar with the technique of intimidation Plaintiff suffered. "This technique is used for intimidation and to prevent a witness from testifying and/or testifying truthfully and/or cooperating with officials out of fear of harm to the witness or his loved ones. I have knowledge of this tactic and know of instances when it has been used."

Exhibit 7: The sworn-to opinion of an expert psychiatrist, who after a complete psychiatric examination of Plaintiff, including psychological testing, concluded: "[There is] no indication of a paranoid process or of any other pathological process that would tend to undermine Mr. Knowlton’s credibility in this instance."

 

See Ex 1, OIC Appendix, n. 9 at 6: Much evidence of obstruction of justice by the FBI is documented in Patrick's lawsuit in this District Court (No. 96-2467) for inter alia, violation of 42 U.S.C. § 1985(2), "...Obstructing justice; intimidating... witness...": "...(3) The FBI concealed... irregularities... during the U.S. Park Police investigation; (4) ...more than two cars in the parking lot; (5) ...deceptively omitted the fact that Foster's car keys were not found at Fort Marcy Park...; (6)...concealed that Mr. Foster's briefcase vanished from the Honda...; (8)...concealed that an automatic pistol was found in Mr. Foster's hand before the revolver...; (9) The FBI ignored forensic evidence...; (10) The wound... [and] blood... is not consistent with... a point blank shot...; (11) The FBI concealed that... a branch [was] lying across Mr. Foster's body; (12) The FBI ignored that the absence of soil on Mr. Foster's shoes is inconsistent with... to where he was... found; (13)... inconceivable for the glasses to have been thrown or bounced...; (15)...taking medication for depression but he was not; (16)...concealed ...doctor opined... Foster was not depressed; (17) The FBI falsely reported that those close... said he was deeply depressed; (20) The FBI lab reported...'suicide note' [authentic]..., but it was forged." See also attached: Exhibit 1: (i) Map of the cars in the Fort Marcy lot and Patrick's route to and from his car; & (ii) Timeline. Exhibit 2: Map depicting the harassment Patrick suffered. Exhibit 3: The FBI knew that Mrs. Foster could identify only a silver gun, so FBI agents showed her a silver gun, told her it was found in Mr. Foster's hand, and falsely reported that she identified the (black) gun found in Mr. Foster's hand as belonging to Mr. Foster. Exhibit 4: The FBI concealed that Mr. Foster's car was not in the Fort Marcy lot by the time he was dead. Exhibit 5: The FBI concealed the gunshot wound in Mr. Foster's neck by: (i) concealing the contents of the Medical Examiner's Report which states that there was a gunshot wound in Mr. Foster's neck; (ii) falsely reporting that the 35 mm photographs were unclear; (iii) concealing that Polaroid photographs vanished; and (iv) concealing that autopsy x-rays vanished.

See Ex 2, Am. Comp. §§ 4, 58-65, 71-74, 76-77, 174(6).
See Ex 2, Am. Comp. §§ 66-70, 75.
See Ex 2, Am. Comp. §§ 102-103.
See Ex 2, Am. Comp. §§ 104-154.
See Ex 2, Am. Comp. § 105.
See Ex 2, Am. Comp. §§ 134-137.
See Ex 2, Am. Comp. §§ 156-161.
See Ex 2, Am. Comp. § 155.
See Ex 2, Am. Comp. § 167.
See Ex 2, Am. Comp. §§ 32-41.
See Ex 2, Am. Comp. §§ 42-54.
See Ex 2, Am. Comp. §§ 78-100.

Sept. 9, 1999, Mem. Order, at 2: "Plaintiff alleges that defendants conspired to intimidate him in connection with his testimony before the grand jury and that this conspiracy was subsidiary to a larger conspiracy to hide the facts of Mr. Foster's death."

See Sept. 9, 1999, Mem. Order, at 12: "Plaintiff's complaint contains five counts. Count I charges all defendants... with conspiracy to interfere with his civil rights and obstruction of justice in violation of 42 U.S.C. § 1985(2);" And see Sept. 9, 1999, Mem. Order, at 3: "Plaintiff alleges that the conspiracy against him began in April 1994, when defendant Monroe interviewed him and falsified statements he made regarding the events he witnessed in the park.."

September 9, 1999, Mem. Order, at 49: "[P]laintiff here must come forward with evidence that is sufficient to support an inference that the persons before the Court came to an agreement to commit a violation of § 1985(2)."

June 27, 2000, panel Order: Contrary to his assertions, appellants' evidence fails to support his § 1985(2) claim. See Abercrombie v. City of Catoosa, 896 F.2d 1228, 1230-31 (10th Cir. 1990) (affirming summary judgment against plaintiff on § 1985(2) claim where plaintiff failed to establish "either by direct or circumstantial evidence, a meeting of the minds or agreement among defendants;" plaintiff offered no evidence of communication between alleged coconspirators and nothing that would give rise to inference that they conspired).

September 9, 1999, Mem. Order, at 26: "Plaintiff does not allege any 'agreement' or 'meeting of the minds' between these defendants and any other coconspirators, other than in completely conclusory fashion. There is no indication of how, or when, or with whom, for example, the Virginia medical examiner agreed to participate in

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