462 F.2d 224
UNITED STATES of America, Plaintiff-Appellee,v.Tom O'DELL, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Arlie MURR, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.D. C. RAMSEY, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Junior HICKS, Defendant-Appellant.UNITED STATES of America, Plaintiff-Appellee,v.Glen SHOEMAKER, Defendant-Appellant.
Nos. 71-1606 to 71-1610.
United States Court of Appeals,
Sixth Circuit.
June 16, 1972.

Dale Quillen, Nashville, Tenn.  (Court-appointed), for appellants Arlie Murr, D. C. Ramsey, Junior Hicks and Glen Shoemaker.
John F. Dugger, Ben W. Hooper, II, Newport, Tenn., on brief, for appellant O'Dell.
W. Thomas Dillard, Jerry Foster, Chattanooga, Tenn., John L. Bowers, Jr., U. S. Atty.  (Eastern Dist. of Tenn.), Carl P. McDonald, Asst. U. S. Atty., Knoxville, Tenn., Jerry Foster, Asst. U. S. Atty., Chattanooga, Tenn., on brief, for appellee.
Before CELEBREZZE and PECK, Circuit Judges, and O'SULLIVAN, Senior Circuit Judge.
CELEBREZZE, Circuit Judge.

1
In an indictment handed up in August, 1970, a federal grand jury charged seven Cocke County, Tennessee law enforcement officials,1 a private bail bondsman and "other persons to the Grand Jury unknown" with participation in a scheme designed to pervert the workings of justice in Cocke County and to make the criminal law of Tennessee a source of personal gain for those who administered it.  The net effect of such scheme, according to the indictment, was to coerce and intimidate inhabitants and citizens of the United States in the exercise of rights guaranteed by the Constitution.

2
The indictment alleged that over a period of months, constables and deputy sheriffs of Cocke County arrested a number of persons as they drove away from local taverns, charging them with drunk driving or driving while intoxicated.1a  Once placed in the County jail the prisoners were not taken before a magistrate.  Instead they were told that they faced an unenviable choice: make "bail" in amounts ranging up to $350.00 or be sentenced to "11 months and 29 days on the road."  It was allegedly explained to the prisonervictims-all of whom resided outside of Cocke County-that whatever conventional notions of bail might be, in Cocke County one paid over the money, departed without a receipt and did not return-for trial or otherwise.  It was alleged that the prisoners consistently chose the less onerous of the alternatives, scraped together the "bail" money with the aid of relatives, and departed.  Thereafter, upon motion of the arresting officer, charges against them were dropped.

3
Upon the return of the federal indictment setting forth this scheme the law enforcement officials and others alleged to have assisted them were brought to trial in the United States District Court for the Eastern District of Tennessee.

4
After a lengthy jury trial, five defendants-all law enforcement officials-were found guilty of the offenses with which they were charged.  Four, Arlie Murr, D. C. Ramsey, Junior Hicks and Glen Shoemaker were convicted of "will-fully depriving" persons of their constitutionally guaranteed rights in violation of Title 18 U.S.C. Sec. 242.  The fifth, Tom O'Dell was convicted of conspiring to "injure, oppress, threaten or intimidate" citizens in the exercise of such rights in violation of 18 U.S.C. Sec. 241.  All five defendants have taken appeals to this Court.

5
All the Appellants suggest that they were entitled to directed verdicts of acquittal because the proof offered at their trial failed to establish the facts alleged in the indictment.  Appellant O'Dell also urges that his trial and conviction were improper, constituting such double jeopardy as is prohibited by the Fifth Amendment.  All Appellants join in raising numerous other allegations of error in the conduct of their trial which, they argue, entitle them to reversal of their convictions and new trials.  We believe that Appellant O'Dell's double jeopardy plea was properly rejected.2  We also believe that the evidence introduced at trial would have been sufficient to support the guilty verdicts had the jury been properly instructed.  However, in light of the error committed by the trial court in instructing the jury and the likelihood of prejudice resulting from that error we conclude that the Appellants are entitled to new trials.

6
18 U.S.C. Sec. 241 provides in relevant part:

7
"If two or more persons conspire to injure, oppress, threaten, or intimidate any citizen in the free exercise or enjoyment of any right or privilege secured to him by the Constitution or laws of the United States, or because of his having so exercised the same; . . .

8
They shall be fined not more than $10,000 or imprisoned not more than ten years, or both; . . . ."

9
18 U.S.C. Sec. 242 provides in relevant part:

10
"Whoever, under color of any law, statute, ordinance, regulation, or custom, willfully subjects any inhabitant of any State . . . to the deprivation of any rights, privileges, or immunities secured or protected by the Constitution or laws of the United States . . . shall be fined not more than $1,000 or imprisoned not more than one year, or both. . . ."

11
It is apparent from the bare statutory language that in any prosecution for violation of 18 U.S.C. Sec. 242 a central question facing the trier of fact will be whether a right protected by the Constitution or federal laws has been plotted against or taken from a citizen or inhabitant of one of the United States.  In answering this question, it is, of course, essential that the trier of fact have before it a clear conception of what rights are so protected.

12
The District Court recognized this need and carefully informed the jury:

13
"As to both of these statutes, ladies and gentlemen one of the rights and privileges secured to every citizen of this country, and protected by its Constitution is the right to due process of law; and, it is his immunity under that Constitution not to be deprived of his liberty or his property, including money, by a state without due process of law."

14
The Court then went on to define the "right" in question:

15
"No hard and fast rule can be laid down as to what is, and what is not, due process of law; but for your purposes, due process of law is that process which is due a person who is charged with driving a motor vehicle while under the influence of an intoxicant or some other charge, according to the law of Tennessee."  (emphasis supplied).

16
The Court expanded on the definition, referring to the protected right throughout as, "due process of Tennessee law." Seeking to clarify the phrase, the District Judge set forth in great detail (and over the objections of defense counsel) the Tennessee rules governing arrest, the setting and receiving of bail, commitment to jail and release of arrested persons.  Included in his descriptions were such procedural rules as those requiring: that an arrested person be taken before a magistrate promptly; that an arrested person be allowed to make one phone call before being booked; that the court clerk and not a law enforcement officer take custody of any driver's license confiscated from one accused of driving while intoxicated; and that the maximum bail set for a person accused of the latter offense not exceed $200.00.

17
Having listed these and other procedural requirements of the Tennessee laws the District Court concluded this section of its charge by instructing the jury:

18
"Due process of law guarantees that each and every citizen of the United States, who finds himself charged by an officer of the State of Tennessee with the offense of driving while intoxicated will receive the full and equal protection of the aforementioned laws at each stage of the proceedings against him.

19
"In regard to each respective charge against these respective defendants, if you find from all of the evidence beyond a reasonable doubt that a respective defendant denied the United States citizen his right to such due process of law, then you will find such respective defendant had subjected such a citizen to a deprivation of a right, privilege and immunity secured to him by the Constitution of the United States of America."3

20
Simply put, the instructions informed the jury that the State of Tennessee had established certain rules concerning criminal procedure, that these rules each protected an element of the due process of law which is guaranteed to arrested persons, and that willful violations of these rules would constitute that deprivation of Constitutionally guaranteed rights which is made criminally punishable by 18 U.S.C. Sec. 242.4  Similarly, the instructions informed the jury that a conspiracy to violate such Tennessee rules would violate 18 U.S.C. Sec. 241.5

21
We believe these instructions reflect an improper view of the relevant principles of law.

22
The origins of the District Court's erroneous instructions likely can be traced to an apparent confusion between that due process which is guaranteed by the federal Constitution and "due process of Tennessee law" which, insofar as it is not identical with federal due process, is not directly guaranteed by the Constitution. 18 U.S.C. Secs. 241 and 242 are concerned only with deprivations of rights guaranteed by federal law or the Constitution.  See Screws v. United States, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495 (1945).

23
It is clear that the mere fact that a state rule has been willfully violated or that a conspiracy has been formed to violate such rule, does not itself give rise to criminal liability under 18 U.S.C. Secs. 241 or 242.6  This principle was recognized in Screws, supra:

24
"The problem is not whether state law has been violated but whether an inhabitant of a State has been deprived of a federal right by one who acts under 'color of any law' * * * The statute [18 U.S.C. Sec. 241] does not come into play merely because * * * the state law under which the officer purports to act is violated.  It is applicable when and only when someone is deprived of a federal right by that action." 325 U.S. 91, 108, 65 S.Ct. 1031, 1038 (1945) (emphasis supplied)

25
Conceivably in a given case the state law rules may happen to coincide with the requirements of federal due process.  In such a situation, while theoretically unsound, a charge to the jury couched initially in terms of state law violations might not constitute serious error.  Here, however, many of the state rules whose violation was brought into question are not rules required by the due process clause of the Constitution.

26
Before a defendant can be convicted of a violation of 18 U.S.C. Sec. 242 it must be shown that he intentionally

27
deprive[d] a person of a right which had been made specific by the express terms of the Constitution or laws of the United States or by decisions interpreting them.  Screws v. United States, 325 U.S. 91, 104, 65 S.Ct. 1031, 89 L.Ed.2d 1495; United States v. Ragsdale, 438 F.2d 21, 25 (5th Cir. 1971), cert. denied 403 U.S. 919, 91 S.Ct. 2231, 29 L.Ed.2d 696 (1971).

28
Applying this rule here we are compelled to conclude that the right to be taken before a magistrate promptly after arrest by state authorities is not one which has as yet been held to be guaranteed to persons by the Constitution with the specificity required by Screws.  See Anderson v. Nosser, 438 F.2d 183, 196 (5th Cir. 1971), modified on other grounds (en banc) (March 3, 1972).  Similarly, while many federal courts have begun to view the right to bail as one guaranteed by the Constitution even in state criminal cases (see United States ex rel. Keating v. Bensinger, 322 F.Supp. 784 (N. D.Ill.1971) and cases cited therein at 786 n. 3) we cannot say that this approach has won such uniform adoption as to meet the test of Screws and thus provide the basis for a prosecution under 18 U.S.C. Sec. 241 or Sec. 242.7  Even were the right to non-excessive bail guaranteed there is certainly no court decision suggesting that the $200.00 limit which Tennessee assertedly placed on bail costs in connection with driving while intoxicated charges,8 provides the cutoff figure beyond which all bail costs are "excessive" and in violation of the Constitution.  No decision of any court has defined the due process guaranteed by the United States Constitution so as to include a guarantee that any person accused of a crime by state officers be permitted to make a phone call before being booked.  Nor has any decision held such due process to require that a court clerk rather than an arresting officer hold a driver's license confiscated by police after the arrest of an individual on driving while intoxicated charges.  Yet the District Judge informed the jury that each of these "rights" granted an individual by Tennessee state law is protected by due process and willful violation of such rights is punishable under the federal criminal laws.  It is apparent that he was in error.9

29
The actions of which Appellants were accused could, of course, have been violative of a specific Constitutional right made sufficiently definite to satisfy the requirements of Screws and therefore to give rise to criminal liability under 18 U.S.C. Secs. 241 or 242.

30
It is well established that persons arrested by state law enforcement officials and charged with a crime are entitled to a trial to resolve the question of guilt; this right is one of those guaranteed by the due process clause of the Fourteenth Amendment.  United States v. Price, 383 U.S. 787, 799, 86 S.Ct. 1152, 16 L.Ed.2d 267 (1966); Williams v. United States, 341 U.S. 97, 101, 71 S. Ct. 576, 95 L.Ed. 774 (1951).  A willful effort to deprive a citizen of such right, or to intimidate him in its exercise, if mounted under color of state law, violates 18 U.S.C. Sec. 242.  A conspiracy to effect such ends, whether directed against citizens or mere inhabitants of the United States, is punishable under 18 U.S.C. Sec. 241.  See United States v. Price; United States v. Williams, supra; Brown v. United States, 204 F.2d 247 (6th Cir. 1953); Culp v. United States, 131 F.2d 93 (8th Cir. 1942); cf. United States v. Ragsdale, 438 F.2d 21 (5th Cir. 1971), cert. denied 403 U.S. 919, 91 S.Ct. 2231, 29 L.Ed.2d 696 (1971).

31
Thus the District Judge might properly have informed the jury that the specific actions involved in violating the state rules could provide evidence of an effort to deprive persons of their Constitutionally guaranteed rights to a fair trial.  He might even have informed them that the very violations themselves could provide some evidence of a specific intent to deprive persons of such rights or to intimidate persons in the exercise of such rights.

32
The District Court never mentioned the right to trial, however, or any other right specifically protected by the due process clause.  Thus, while the jury was correctly told that it had to determine whether a person's due process rights were violated or conspired against by Appellants, it was never informed as to the contents of that "due process guarantee."  The jurors thus were asked to reach a verdict without an understanding of one of the essential elements of the crime with which Appellants were charged.

33
The federal appellate courts will not reverse a criminal conviction for errors in the conduct of a trial which are merely formal in nature and which prejudice no substantial rights of the defendant.  Rule 52(a), Federal Rules of Criminal Procedure.  This rule has been applied frequently where erroneous instructions have been given to the jury, but where the error was, in the context of the entire case, harmless.  See Ryan v. United States, 278 F.2d 836 (9th Cir. 1960).  Our inquiry must then be directed to the question of whether the error in question here was harmless and affected only insubstantial rights, or whether it was an error of more consequence.

34
Generally the failure of a District Judge to set forth clearly one of the essential elements of an offense creates such a significant flaw in the trial process as to require reversal of any convictions obtained for the offense involved.  See Byrd v. United States, 342 F.2d 939 (D.C.Cir. 1965); Jackson v. United States, 348 F.2d 772 (D.C. Cir. 1965); United States v. Harris, 346 F. 2d 182 (4th Cir. 1965); cf. Lott v. United States, 218 F.2d 675 (5th Cir. 1955); United States v. Gaither, 440 F.2d 262 (D.C.Cir. 1971).

35
Here the problem is not merely that the Court's instructions failed to provide guidance for the jury's deliberations, but rather that the instructions may well have misled the jurors.  Strong evidence was introduced at trial indicating that the Appellants violated one or more of the state procedural rules mentioned by the District Judge in defining "due process of Tennessee law." For example, it appeared from testimony that confiscated drivers' licenses were held by arresting officers rather than filed with the local court clerk on a number of occasions; improper delays were allowed in the arraignment effort-apparently in part as a result of actions or inaction by some of the Appellants; bail in excess of the $200.00 maximum figure mentioned by the District Judge was set and accepted.  The jury might well have found that Appellants did, intentionally, act contrary to the state rules in dealing with the arrest and confinement of persons charged with driving while intoxicated.  Dutifully following the District Judge's instructions, the jurymen would then have been able to conclude, without any further findings or deliberations, that the federal criminal statutes under which Appellants had been charged, were in fact violated by Appellants' conduct.  Such conclusion would have been unwarranted, absent further deliberations, however.

36
Several key elements of the offense would not yet have been found to be present.  With respect to the Sec. 242 violation the jury had yet to determine whether the individual actions of the Appellants in any way operated to deprive a person of a Constitutionally protected right.  Similarly it had yet to determine whether, if such effect did result from Appellants' actions, these actions were undertaken with a specific intent to bring about such result.10  We cannot fairly assume the jury reached these questions since they were never correctly told the nature of the Constitutionally guaranteed rights which had to be the starting point of their inquiry.  Similar problems exist of course with respect to the Sec. 241 conviction of Appellant O'Dell. Again we cannot assume that the jury found him to be a member of a conspiracy which sought to threaten or intimidate citizens in the exercise of protected rights, for once more the jury had not been told what rights were and were not protected by the Constitution.

37
Despite the strength of the government's cases against Appellants we cannot say with assurance that a properly instructed jury would necessarily have returned the guilty verdicts in question here.  Any of the individual actions previously discussed-the delay in bringing an accused before a magistrate, for instance-could well have been undertaken independent of any effort to deprive a person of Constitutional rights or of any conspiracy to accomplish such results.  The delay in arraignment, for example, even if it resulted from intentional conduct may have been the product of sheer laziness on the part of an arresting officer, an unwillingness to inconvenience himself or the local magistrate simply to accord an arrested person his state granted rights.  Such conduct is reprehensible, perhaps even a state criminal offense-but not a federal crime.  The act becomes a violation of Section 242 only if undertaken as part of an intentional and effective effort to deprive an individual of his right to trial or other federal right.  The jury was never asked which of these two scenarios comported with reality in connection with the denial of prompt arraignment or the other specific acts with which Appellants were accused.  Similarly the jurors were not asked to distinguish between a conspiracy designed to achieve goals violative of state law and one which sought to affect persons in the exercise of specific federal rights.  Only the latter course of conduct is punishable under Sec. 241.

38
Under such circumstances, following the Supreme Court's rule that we must look to "[the] effect the error had or reasonably may be taken to have had upon the jury's decision" Kotteakos v. United States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946) we cannot say that the error in the jury instructions was either harmless or insubstantial.

39
We have suggested earlier that substantial evidence of both a conspiracy and an actual effort to deprive persons of Constitutional rights exists in the record which has come before us.  The existence of such substantial evidence is irrelevant here, however. "The question is not whether guilt may be spelt out of a record, but whether guilt has been found by a jury according to the procedure and standards appropriate for criminal trials in the federal courts."  Bollenbach v. United States, 326 U.S. 607, 614, 66 S.Ct. 402, 90 L.Ed. 350 (1946); cf. United States v. Casale Car Leasing, Inc., 385 F.2d 707 (2d Cir. 1967).

40
Appellants have been primarily accused of denying criminally accused persons the right to a trial on the charges placed against them.  We must take every care, lest, acting to deter misuse of official power, federal law enforcement officials and the federal courts deny Appellants their right to a fair trial.

41
The error committed by the District Court in instructing the jury requires that the judgments be vacated and the causes remanded to the District Court for new trials.11

1
 An eighth law enforcement official, Deputy Sheriff Rufus Leatherwood, was named a co-conspirator by the grand jury, but not indicted
1a The indictment did not allege that the arrests were made without probable cause.

2
 O'Dell was previously acquitted of charges that he joined in a conspiracy to deprive persons of their civil rights.  Though involving the same time period and a similar extortion scheme the earlier charges (Indictment # 7167) differed substantially from the present ones in the identity of both O'Dell's alleged co-conspirators and the victims of the asserted plots
O'Dell contends that the Government improperly separated one conspiracy into two to increase its chances of successful prosecution.  Had he been able to establish that but a single overall conspiracy existed we would be compelled to uphold his former jeopardy claim.  United States v. Cohen, 197 F.2d 26 (3d Cir. 1952); United States v. Palermo, 410 F.2d 468 (7th Cir. 1969).
O'Dell had the burden of showing the unified nature of the conspiracy.  Sanchez v. United States, 341 F.2d 225 (9th Cir. 1965), cert. denied 382 U.S. 856, 86 S.Ct. 109, 15 L.Ed.2d 94 (1965); Rothaus v. United States, 319 F.2d 528 (5th Cir. 1963).  He has not met that burden.
The District Court held that the total dissimilarity of the alleged victims of the two plots alone required a finding that two conspiracies existed.  While this view has support (see United States v. Brimsdon, 23 F.Supp. 510 [W.D.Mo.1938]) we are reluctant to base our entire decision on it, given the fact that the conspiracy may well have been aimed not at any specific individuals, but at a broad class of persons arguably composed of victims named in both indictments.  We therefore rely also on the difference in the identity of the alleged conspirators and the difference in their official positions.  While the group in # 7167 was primarily composed of state highway patrolmen, that named in the present indictment was composed entirely of local policemen.  In the absence of any evidence that the two distinct groups worked together toward a common goal, rather than merely following parallel plans built around the central figures-O'Dell and Leatherwood-we do not find any reason to view the two plots as part of a single unified conspiracy.
In light of this holding with respect to the existence of two separate and distinct conspiracies and in the absence of any indication whatever that the overt acts involved in the two conspiracies were identical in time, place or participants, we also find O'Dell's claim of collateral estoppel without merit.

3
 These last quoted paragraphs clearly pertain most directly to the offense set out in Sec. 242 of Title 18.  Since the District Court did not elsewhere relate the nature of the protected rights to the conspiracy offense set forth in Sec. 241 of that Title, it must be assumed that it intended to inform the jury that one who conspired to deprive a citizen of any of "the aforementioned laws at [any] stage of the proceedings against him" would have "conspired to injure, oppress, threaten, or intimidate" him in the free exercise of a right or privilege secured to him by the Constitution

4
 Elsewhere in its charge the District Court informed the jury that:
"in every crime. . . . there must exist a union or joint operation, of act on the one hand, and intent on the other, and the burden is always on the prosecution to have proved not only what was done, but also the intent with which it was done, beyond a reasonable doubt. "Specific intent must be proved before there can be a conviction. . . . A person who knowingly does an act which the law forbids, intending with evil motive or bad purpose, either to disobey or disregard the law may properly be found to have acted with specific intent. . . . (Y)ou may draw the inference that each of these defendants intended all of the consequences resulting from any act which he knowingly did, or did not do that anyone standing in like circumstances and possessing similar knowledge, should have reasonably expected to have followed."
Thus it followed from the instructions that the jury could find a defendant intended to deprive a person of a guaranteed right if such deprivation was the natural consequences of his action.  Before the jury could properly draw any conclusion as to what the natural consequences of any action was in terms of rights affected, however, it would have to be informed of what those rights were.  The text of the remainder of this opinion addresses itself to the question of whether the jury was so informed.

5
 That the District Judge himself understood the state rules to be identical with the due process guaranteed by the United States Constitution was made evident when, out of the presence of the jury, he ruled upon exceptions and objections to the charges in question
MR. DUGGER (one of several defense attorneys): [I object to] The Court's charge in which the Court charged the jury that it is due process of Tennessee law to require a bondsman to keep a duplicate copy and that it is a violation of Tennessee law for him not to keep a duplicate copy, that may be a regulation of Tennessee law, but it has nothing to do with due process of law granted to these people under the Fourteenth Amendment.
THE COURT: Well, the Court believes that any statutory requirement as to procedure is a matter of due process of law. Give me just a moment and I will give you the section in which that is required.  It is T.C.A., Section 40-1404 et seq.
While the specific objection in question related to a defendant subsequently acquitted, the judge's belief that state procedural rules and federal due process are one and the same is readily apparent in his remarks.  This equation of the two is emphasized later in the same colloquy.
MR. DUGGER: The defendants object to the Court's charge that due process of law is what is due a person according to the laws of Tennessee.
THE COURT: Objection overruled.  That is what due process of law was in this case.
MR. DUGGER: I object to the Court's charge that due process of Tennessee law requires a-due process of Tennessee requires a driver's license to be deposited with the criminal or circuit court, and also setting out various duties of the clerk of the court.
THE COURT: That is what is required by the applicable statute.  If you will give me just a minute I will  give that to you.  T.C.A., Section 59-713.  Objection overruled.

6
 The Government's theory of the case, as presented below, revolved around due process violations only.  The indictment mentioned only such due process violations.  The Government did not claim that any person's equal protection rights had been abridged and therefore did not introduce evidence to support such claim.  Equal protection rights are protected by the criminal civil rights statutes, however.  See United States v. Guest, 383 U.S. 745, 86 S.Ct. 1170, 16 L.Ed.2d 239 (1965).  Conceivably violations of the state statutes might have been relevant in showing unequal enforcements of the laws-but proof was not developed on this point-the Government relying instead on due process claims.  The Government's attempt to invoke equal protection principles now to justify emphasis on state law must fail since the case was not tried on such theory

7
 The Screws test of course eliminates the possibility that persons may be prosecuted for willful violation of "emerging" Constitutional rights.  While lessening the scope of civil rights protection available to citizens, such limitation is necessary if the criminal civil rights statutes are themselves to avoid characterization as unduly vague and indefinite.  See Screws, supra

8
 The prejudicial effect of the instructions relevant to this point was increased by the fact that the Judge erred in declaring $200.00 to be the maximum bail allowed by Tennessee law. It appears Chapter 360 of the Public Acts of 1967 amended Tennessee Code Sec. 40-118 to provide for a maximum bail figure of $750.00 for driving while under the influence in Cocke County.  This law was in effect during the period charged in the indictment although it was later repealed
The jury could have rejected defense claims that drivers were merely being charged permissible bail when they paid up to $350.00 for release on the basis of the incorrect bail maximum suggested by the District Judge.  This fact alone suggests that the instructions geared to violation of individual state rules may well have been prejudicial to one or more of the defendants.

9
 The Government argues that since the state law violations could be taken as some evidence of an intent to deprive citizens of their civil rights, the District Court might properly instruct the jury as to the nature of those state laws.  This is true as far as it goes.  However, the District Judge did not limit the relevance of state law to such evidentiary purposes; on the contrary he suggested to the jury that the state law provided the standard for determining what rights were protected by the federal statutes in question.  As we indicate above, this was clear error

10
 In determining whether such specific intent existed, the jury in any new trial need not, in order to convict, determine that Appellants actually knew that it was a Constitutional right that they were violating or conspiring against.  As the Supreme Court said in Screws, 325 U.S. 91, 65 S.Ct. 1031, 89 L.Ed. 1495:
"The fact that the defendants may not have been thinking in constitutional terms is not material where their aim was not to enforce a local law but to deprive a citizen of a right and that right was protected by the Constitution." 325 U.S. 91, 106, 65 S.Ct. 1031, 1037.
It is enough if Appellants can be shown to have acted in a manner which was "in reckless disregard of constitutional prohibitions or guarantees."
Speaking specifically of the intent needed to prove that a defendant has deprived a person of Constitutional rights by denying him a trial the Supreme Court has said:
"Those who decide to take the law into their own hands and act as prosecutor, jury, judge and executioner plainly act to deprive a prisoner of the trial which due process of law guarantees him.  And such a purpose need not be expressed; it may at times be reasonably inferred from all the circumstances attendant on the act."  See Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519.   Screws, supra, 325 U.S. at 106, 65 S.Ct. 1031, 89 L.Ed. 1495.
Before the jury can make an inference from the circumstances, however, it is essential that it know the nature of the right, intentional violation of which it is asked to infer.

11
 Our disposition of these cases makes it unnecessary for us to reach other claims of error raised by Appellants in seeking reversal


60 N.J. Super. 513 (1960)
159 A.2d 439
JOSEPH TIBERI, PLAINTIFF-RESPONDENT,
v.
ANTHONY PETRELLA, DEFENDANT-APPELLANT.
Superior Court of New Jersey, Appellate Division.
Argued March 8, 1960.
Decided April 4, 1960.
*515 Before Judges GAULKIN, SULLIVAN and FOLEY.
*516 Mr. Irving N. Yankowitz argued the cause for defendant-appellant.
Mr. William J. Camarata argued the cause for plaintiff-respondent (Messrs. Camarata and Colonna, attorneys).
The opinion of the court was delivered by FOLEY, J.A.D.
Defendant appeals from a judgment entered in the Essex County Court. The case was tried without a jury.
Our examination of the record satisfies us that the factual findings and conclusions of the trial judge as set forth in his oral deliverance were fully supported by the evidence. They follow:
"In this case, Joseph Tiberi, as plaintiff, seeks compensatory and punitive damages on a charge of atrocious assault and battery committed maliciously upon him by the defendant on February 15, 1958. By answer, defendant admits a striking, but denies malice, and in the manner of separate defenses avers, one, self-defense and two, that plaintiff incited the alleged assault. The matter was pretried and accordingly moved for trial before the Court without a jury. Upon the close of all the proofs and summations of counsel, the issue was submitted for determination.
As appears in the record, the factual circumstances are in sharp dispute as to what gave rise to the act of this atrocious assault and battery, as well as of the conduct of the parties following the occurrence, and the extent of damages, all of which present a factual case. In that situation, my consideration of the evidence produces the following findings of fact:
The parties had known each other about ten years. Plaintiff was the godfather of one of defendant's children. On Saturday, February 15, 1958, the defendant caused plaintiff to be called by telephone, requesting plaintiff to come to the defendant's residence and assist in starting a disabled motor vehicle. Upon plaintiff's arrival there, the parties met. Following some mutually expressed cross words, an incident of combat occurred. What was said and why are in direct dispute, but it can be concluded that the discussion involved an occasion of plaintiff's alleged previous misconduct in relation to defendant's wife. Whatever that circumstance was, it had relation to a happening on the previous Thursday, about which defendant was not told until Friday, without any action on defendant's part until Saturday, February 15, 1958. Although what gave impetus to the questioned assault, including who took initial *517 action, is specifically contradicted, it clearly appears that defendant acquired a solid iron pipe, described as about one inch in diameter and a yard long, which he admits he swung at plaintiff, but insisting without making any contact. Contradictions follow that event as to which party had control of the pipe during a continuing wrestle or struggle. Such posture of the proof presents the direct question, beyond the fact of which party was the original offender: Was [sic] the force used in the matter of self-defense equal to assault initiated, or did the extent of the assumed act of defendant exceed, by means of the use of the said pipe, conduct which was reasonably required or essential? At this point I find as a fact that defendant did make use of the described instrument in striking plaintiff's right arm and elbow and that such use was unwarranted under the prevailing and believable circumstances of the altercation. As to that situation, I am satisfied by the preponderance of the evidence that the element of defendant's liability as an aggressor is established. I should add that I consider that the disclosed demeanor and disposition of defendant toward anger convince me of his guilt of malicious assault and battery upon the plaintiff."
The court awarded compensatory damages in the amount of $15,000 and punitive damages in the amount of $1,000.
Initially the defendant attacks the judgment upon the ground that an "atrocious assault and battery" is unknown to civil jurisprudence. As a corollary, it is urged that the "finding of atrocious assault and battery was beyond the scope of the issues as limited by the pleadings and pretrial order." Basically the argument seems to be that atrocious assault and battery is defined only in our criminal law, N.J.S. 2A:90-1; State v. Capawanna, 118 N.J.L. 429 (Sup. Ct. 1937), and hence is cognizable only in criminal proceedings. Under the statute the offense is described as "maiming or wounding of another," and in State v. Capawanna, supra, the assault and battery interdicted is described as one which is "savage and cruel in character." The obvious purpose of the statute was to categorize such offenses as aggravated assaults and thus to distinguish the degree of criminality involved from that of the simple assault which is now punishable as disorderly conduct. N.J.S. 2A:170-26. In the civil law the distinction is unnecessary since the savagery of the attack and the effect of it upon *518 the victim have bearing only upon the issue of damages, compensatory or punitive as the case may be. The tort involved is assault and battery; the word "atrocious," being in legal purview merely descriptive of the assault and battery, is surplusage. Compare Zick v. Smith, 95 N.J.L. 388 (Sup. Ct. 1921), affirmed o.b. 97 N.J.L. 351 (E. & A. 1922), and Noback v. Town of Montclair, 33 N.J. Super. 420 (App. Div. 1954) (cases allowing recovery for "atrocious assault and battery"). For this reason it is of no moment that the assault and battery was not described in the complaint as "atrocious," and that the seventh paragraph of the pretrial order referred to assault and battery as the legal issue rather than "atrocious assault and battery." Also we note that paragraph one of the pretrial order (to which counsel for defendant subscribed his consent) described the action as being one "arising out of atrocious assault and battery."
Next it is urged that the proof of the case revealed no evidence of malice thus making an award of punitive damages unjustified. Malice may be presumed from the manner in which an assault is committed. 4 Am. Jur., Assault & Battery, § 147 (1936). Where injury is inflicted in a spirit of malice, within which may be embraced both a deliberate purpose to override the rights of another and a wanton disregard of his physical safety, punitive damages may be awarded. Bullock v. Delaware L. & W.R., 61 N.J.L. 550 (E. & A. 1898). The findings of the trial court as hereinabove set forth fully satisfy this requirement. Also the quantum of the award of exemplary damages comports with the rule that they must bear a reasonable relationship to the compensatory damages. See 25 C.J.S. Damages § 126, p. 740 (1941).
Lastly, defendant contends that the compensatory damages awarded were excessive. We cannot agree. The evidence justified the finding by the county court that plaintiff sustained out of pocket losses of approximately $9,500. His injuries consisted in a compound comminuted fracture *519 of the right ulna with a fracture of the radius resulting in an obvious permanent deformity of the right arm.
In the repair of the injured member plaintiff's physician found it necessary to bind the bone fragments with metal bolts. In the course of convalescence by "constant small motion of the arm" undertaken on doctor's orders the bolts were broken thus delaying maximum rehabilitation. Defendant takes the position that the breaking of the metal healing aids was an intervening cause of prolonged disability and consequent loss of earnings for which he was not responsible. The law is otherwise. A wrongdoer is answerable for an injury which in the ordinary and natural course of events ensues from the wrongful act even though it be immediately produced by an intervening cause, if such intervening cause was put in operation by the primary wrongful act. Millman v. United States Mtg. & Title Guar., Co., 121 N.J.L. 28, 36-37 (Sup. Ct. 1938).
Affirm.


22 F.3d 305
U.S.v.Shea (Joseph)
NO. 93-5514
United States Court of Appeals,Third Circuit.
Mar 30, 1994

1
Appeal From:  D.N.J.

2
AFFIRMED.


154 F.Supp.2d 3 (2001)
Maxine M. MOUNT et al., Plaintiffs,
v.
Alan I. BARON et al., Defendants.
Civil Action No. 00-0463.
United States District Court, District of Columbia.
July 16, 2001.
*4 *5 Maxine M. Mount, Houston, TX, pro se.
Jeffrey D. Robinson, Melissa McNiven, Baach Robinson & Lewis, Thomas M. Buchanan, Lanelle K. Polen, Winston & Strawn, Washington, DC, for defendants.

MEMORANDUM OPINION
URBINA, District Judge.

GRANTING THE DEFENDANTS' MOTIONS TO DISMISS

I. INTRODUCTION
This matter comes before the court on the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). Maxine Mount and Building Services Unlimited, Inc. ("BSUI") (collectively, "the plaintiffs"), bring this pro se suit for legal malpractice against Howrey & Simon and Howrey Simon Arnold & White, LLP ("Howrey" or "Howrey & Simon"), Alan I. Baron, Esq., and Foley, Hoag & Elliot, LLP ("Foley, Hoag") (collectively, "the defendants"). Specifically, the plaintiffs allege that the defendants dropped and failed to re-add Spriggs & Hollingsworth and other unnamed "culpable" law firms to an earlier case in which Maxine Mount sued a lawyer for malpractice, Mount v. Riley, Dkt. No. 94cv1680 (HHG) (D.D.C.). The plaintiffs also allege that the defendants committed malpractice by dropping and not re-adding certain unspecified counts in the second amended complaint. The defendants move to dismiss for a number of reasons. The court will grant the defendants' motions to dismiss because the complaint fails to state a claim on which relief can be granted.

II. BACKGROUND[1]
In 1976, Maxine Mount founded Building Services Unlimited, Inc., in Cincinnati, Ohio. See Ex. C in Def. Howrey's Mot. to Dis. Pls.' Compl. ("Howrey's Mot. to Dis.") (Mount v. Riley Compl. ¶¶ 6-11, 32-50). The company's mission was to pursue commercial building-maintenance contracts. Over the years, BSUI grew and Ms. Mount sought larger contracts. During this process, Ms. Mount hired Dennis Riley, an attorney specializing in government contracts. Mr. Riley provided periodic legal assistance to BSUI in its efforts to secure government contracts. In addition to these services, Mr. Riley represented BSUI and Ms. Mount in several lawsuits in which BSUI and Ms. Mount had been named as defendants.
In June 1994, Ms. Mount sued Mr. Riley in D.C. Superior Court, alleging legal malpractice by Mr. Riley and his various law firms dating back to 1986. The defendants removed the case to federal court in August 1994. See Howrey's Mot. to Dis. at 2. Barry Coburn, Esq., initially represented the plaintiffs in Mount v. Riley, but he withdrew from the case in late 1994 after Jonathan Feld and Alan Baron of Howrey & Simon took over the case. Mr. Feld left Howrey & Simon in February 1995, but *6 did not withdraw from the case until January 1997. See id.
Meanwhile, in June 1996, Mr. Baron left Howrey & Simon to join Foley, Hoag & Elict, LLP ("Foley, Hoag") and took the Mount case with him. Mr. Baron and Foley, Hoag, his new firm, withdrew from the case in February 1997. See id at 3. Thereafter, the plaintiffs hired Robert Ackerman to represent BSUI and Raighne Delaney, Richard Murray, and Jacob Pompan to represent Ms. Mount. A year later, in October 1998, the plaintiffs fired these counsel and rehired Barry Coburn. See id.
The first trial in Mount v. Riley ended with a hung jury in February 2000. See Howrey's Mot. to Dis. at 3. At the second trial in October 2000, the jury found the defendants not liable on two counts, and liable on a third count.[2]See id. The jury, however, did not award the plaintiffs any damages on the third count. Currently, there are motions pending on that verdict. See id.
On March 6, 2000, the plaintiffs, through Barry Coburn, filed this lawsuit alleging legal malpractice based on the defendants' negligence. See Howrey's Mot. to Dis. at 3. The complaint was filed after the first trial in Mount v. Riley ended, but before the second trial started. See id. In the complaint, the plaintiffs name Alan I. Baron, and the law firms Howrey & Simon and Foley, Hoag as the defendants. See Compl. ¶ 2. The current complaint charges that the defendants committed malpractice in the second amended complaint filed by the defendants in October 1994 in Mount v. Riley. Specifically, the plaintiffs allege legal malpractice based on the defendants' dropping and not re-adding Spriggs & Hollingsworth and other unnamed law firms. The plaintiffs also claim malpractice based on the dropping and not readding "a variety of counts" in the second amended complaint. See Compl. ¶¶ 7, 10.
On January 8, 2001, the plaintiffs faxed to Chambers a motion for leave to amend the complaint to add additional defendants, but failed to file the motion with the court clerk's office. See Facsimile from Maxine M. Mount, plaintiff, to Judge Urbina's Chambers (Jan. 8, 2001). Nevertheless, Ms. Mount told defendant Howrey of her fax and, as a result, defendant Howrey submitted an opposition to the plaintiffs' motion to amend. See Howrey's Opp'n to Mot. to Am. ("Howrey's Opp'n"). On January 8, 2001, the plaintiffs' attorney, Mr. Coburn, withdrew from this case after he was fired.[3] Thus, Ms. Mount is now pro se. See Howrey's Mot. to Dis. at 3.
On February 14, 2001, defendant Foley, Hoag filed a motion to dismiss for lack of subject-matter jurisdiction and for failure to state a claim on which relief can be granted. See Foley, Hoag's Mot. to Dis. at 1. In addition, defendant Howrey filed a motion to dismiss on the grounds that: (1) the claims are barred by the statute of limitations; (2) the complaint fails to state a claim on which relief can be granted; and (3) the court lacks subject-matter jurisdiction. See Howrey's Mot. to Dis. at 1. On March 20, 2001, the plaintiffs responded to the above motions by submitting what may be construed as the second amended complaint. This pleading contains five counts against the defendants: (1) breach of contract; (2) breach of confidentiality; (3) negligence; (4) "standard of care and emotional distress"; and (5) legal malpractice. See Pls.' Answer to Mot. to *7 Dis. ("Pls.' Answer"). Both defendants replied to this proposed second amended complaint. See Foley, Hoag's Reply and Howrey's Reply.
Because the plaintiffs have failed to state a claim on which relief can be granted, the court will grant the defendants' motions to dismiss.

III. ANALYSIS

A. Legal Standard for Motion to Dismiss
For a complaint to survive a Rule 12(b)(6) motion to dismiss, it need only provide a short and plain statement of the claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); see also Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). A motion to dismiss under Rule 12(b)(6) tests not whether the plaintiff will prevail on the merits, but instead whether the plaintiff has properly stated a claim. See FED. R. CIV. P. 12(b)(6); Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds by Harlow v. Fitzgerald, 457 U.S. 800, 102 S.Ct. 2727, 73 L.Ed.2d 396 (1982). Thus, the court may dismiss a complaint for failure to state a claim only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984); Atchinson v. D.C., 73 F.3d 418, 422 (D.C.Cir.1996). In deciding such a motion, the court must accept as true all well-pleaded allegations of fact, excluding those that are overbroad and unsupported by specific factual averments. See Pitney Bowes v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C.1998). Moreover, the court should draw all reasonable inferences in the nonmovant's favor. See Judicial Watch, Inc. v. Clinton, 880 F.Supp. 1, 7 (D.D.C.1995).

B. The Court Will Not Allow the Plaintiffs to Amend the Complaint
Federal Rule of Civil Procedure 15(a) provides that "[a] party may amend the party's pleading once as a matter of course at any time before a responsive pleading is served...." Once a responsive pleading is filed, "a party may amend the party's pleading only by leave of court or by written consent of the adverse party; and leave shall be freely given when justice so requires." See FED. R. CIV. P. 15(a); see also Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962); Kundrat v. D.C., 106 F.Supp.2d 1, 4 (D.D.C.2000) (Urbina, J.).
Generally, the court should freely grant leave to amend. See Willoughby v. Potomac Elec. Power Co., 100 F.3d 999, 1003 (D.C.Cir.1996). Indeed, it is an abuse of discretion to deny leave to amend unless there is a sufficiently compelling reason, such as "undue delay, bad faith or dilatory motive...repeated failure to cure deficiencies by [previous] amendments...[or] futility of amendment." See Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C.Cir. 1996) (citations omitted); see also Kas v. Financial Gen. Bankshares, Inc., 105 F.R.D. 453, 457-59 (D.D.C.1984). The court will deem an amendment futile if the claim would not survive a motion to dismiss. See Moldea v. New York Times, 22 F.3d 310, 319 (D.C.Cir.1994); see also James Madison Ltd. v. Ludwig, 82 F.3d 1085, 1099 (D.C.Cir.1996); Price v. Phoenix Home Life Ins. Co., 44 F.Supp.2d 28, 32-33 (D.D.C.) (Urbina, J.) (denying leave to amend because proposed amendments would not cure lack of subject-matter jurisdiction), aff'd, 203 F.3d 53 (D.C.Cir.1999) (table, text in Westlaw).
The plaintiffs seek to amend the complaint in various ways. In the proposed *8 first amended complaint, the plaintiffs seek to include additional defendants. See Facsimile from Maxine M. Mount, plaintiff, to Judge Urbina's Chambers (Jan. 8, 2001). In the proposed second amended complaint, the plaintiffs seek to add various counts, including (1) breach of contract; (2) breach of confidentiality; (3) negligence; (4) "standard of care and emotional distress"; and (5) legal malpractice. See Pls.' Answer. Both defendants opposed this motion for leave to file a second amended complaint. See Foley, Hoag's Reply and Howrey's Reply.
The court determines that the addition of new defendants and claims would be futile. The amendments offered by the plaintiffs would fail to survive the defendants' motions to dismiss. Specifically, the plaintiffs fail to allege any facts showing proximate causation. This necessary connection between the alleged breach of duty and the alleged harm suffered by the plaintiffs is an essential element in a claim for legal malpractice in the District of Columbia. See Shapiro, Lifschitz & Schram v. R.E. Hazard, Jr., 24 F.Supp.2d 66, 75 (D.D.C.1998). Because the plaintiffs' proposed amendment of their complaint would be futile, the court will deny the plaintiffs' motions to amend.

C. Legal Standard for Legal Malpractice
To state a claim for professional malpractice, clients "must allege facts which establish: (1) that [the attorney] had a duty to use such skill, prudence and diligence as other members of this profession commonly possess and exercise, (2) a breach of that duty, (3) a proximate causal connection between the negligent conduct and the resulting injury, and (4) actual loss or damage resulting from [the attorney's] negligence." See id. at 75; see also Smith v.. Haden, 872 F.Supp. 1040, 1044 (D.D.C. 1994). The test of the sufficiency of the claim in such a suit is whether its allegations, if proven, would state an actionable dispute. See Macktal v. Garde, 111 F.Supp.2d 18, 21 (D.D.C.2000) (citation omitted).[4]

D. The Plaintiff Has Failed to State a Claim on which Relief Can Be Granted
The defendants move to dismiss for the following reasons: (1) the claims are barred by the statute of limitations; (2) under Federal Rule of Civil Procedure 12(b)(6), the complaint fails to state a claim on which relief can be granted; and (3) under Federal Rule Civil Procedure 12(b)(1), this court lacks subject-matter jurisdiction. Because the court rules that the complaint fails to state a claim under Rule 12(b)(6), the court need not address the statute-of-limitations argument. For the sake of this analysis, the court will assume arguendo that it has subject-matter jurisdiction.
Federal Rule of Civil Procedure 12(b)(6) states that a claim may be dismissed if it fails to allege sufficient facts to support a cognizable legal claim. See FED. R. CIV. P. 12(b)(6). In legal malpractice cases, this court has held that:
[A] plaintiff in a malpractice suit... must demonstrate that the defendant's actions caused a legally cognizable injury. Becker v. Colonial Parking, Inc., 409 F.2d 1130, 1136-1137 (D.C.Cir.1969). The plaintiff must show, inter alia, that his attorney's `negligence resulted in and was the proximate cause of the loss to *9 the client.' Niosi v. Aiello, 69 A.2d 57, 60 (D.C.Mun.App.1949). Thus an attorney is not liable for malpractice if his client has suffered no damages.
In the instant case the plaintiff essentially alleges only vague and general failures of the defendant to locate and interview witnesses who would have `render[ed] suitable support for a defense." Plaintiff fails to identify what these witnesses would have testified to and how they would have supported a defense, which would have resulted in his acquittal. Accordingly, this Court rules that the plaintiff has failed to assert a legally cognizable harm which is an essential element of his claim and his complaint must be dismissed.
Bigelow v. Knight, 737 F.Supp. 669, 671 (D.D.C.1990).
In this case, the plaintiffs' core argument is that the defendants committed legal malpractice "when they dropped certain defendants (such as but not limited to the law firm Spriggs & Hollingsworth) at the time they filed the second amended complaint, or when they failed to seek leave to add the firms they had dropped and other culpable law firm defendants subsequent to the filing of the second amended complaint." See Compl. ¶ 7. In addition, the plaintiffs also allege malpractice based on dropping and not re-adding "a variety of counts" in the second amended complaint. See Compl. ¶ 10.
These allegations do not meet the Rule 12(b)(6) standard for pleading sufficient facts to state a claim of legal malpractice on which relief can be granted. Although the Federal Rules of Civil Procedure call for notice pleading and do not require a claimant to set out in detail the facts on which she bases her claim, the Rules do require a "short and plain statement of the claim" that will give the defendant fair notice of the nature of the plaintiff's claim and the grounds on which it rests. See FED. R. CIV. P. 8(a)(2); Conley, 355 U.S. at 47, 78 S.Ct. 99. In this case, the plaintiffs have not given the defendants the requisite fair notice.
To state a claim for professional malpractice, the plaintiffs must allege that: (1) the law firms Howrey & Simon and Foley, Hoag had a duty to Ms. Mount and to BSUI; (2) they breached this duty; (3) there is proximate cause between the negligent conduct and the resulting injury; and (4) actual loss or damages resulted from the defendants' negligence. For the sake of analysis, the court will assume arguendo that the plaintiffs have successfully alleged a duty and a breach. The plaintiffs must then allege that these actions were the proximate cause of any injury the plaintiffs suffered. See Macktal, 111 F.Supp.2d at 21.
Quite simply, the plaintiffs have failed to make these necessary allegations. The plaintiffs have pled no facts that, if proven true, would demonstrate the causal connection between the jury's verdict and the failure to keep or re-add defendants and claims at the time of the filing of the second amended complaint. See Macktal, 111 F.Supp.2d at 21. In this case, the plaintiffs allege only "vague and general failures" of the defendants to drop and not re-add firms and claims in the second amended complaint. See Bigelow, 737 F.Supp. at 671. Accordingly, the plaintiffs have not identified how these additional defendants and claims would have resulted in a verdict more favorable to the plaintiffs.
The defendants contend that the complaint never specifies the causal connection between the failure to keep certain defendants (and claims) in the case and the jury's verdict. Moreover, the defendants argue that there is no basis to conclude from the complaint that the jury's verdict *10 would have been any different had other law firms (and claims) been included. See Howrey's Mot. to Dis. at 8. The court agrees, and holds that the plaintiffs failed to provide sufficient facts that would support their allegations that the defendants' negligent conduct would have changed the plaintiffs' ability "to recover sufficient damages from the remaining defendants." See Compl. ¶ 7. In other words, the plaintiffs have failed to allege any facts showing that but for the defendants' negligence, there would have been a different verdict.
Because the plaintiffs are proceeding pro se, this court construes the pleadings liberally and holds them to a less stringent standard than formal pleadings drafted by lawyers. See Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). A broad reading of the complaint, however, does not relieve the plaintiffs of the burden of alleging sufficient facts on which a recognized legal claim could be based. See id. Although an attorney drafted the first complaint in this case, the pro se plaintiffs have filed various motions, including several motions to amend the complaint. Even if the court were to accept the plaintiffs' motions to amend the complaint and view all the allegations in the light most favorable to the plaintiffs, the court would still dismiss the complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). The allegations contained in the proposed amended complaints stem from the same claim of legal malpractice based on negligence. And crucially, the proposed second amended complaint also fails to allege any connection between the alleged legal malpractice and the plaintiffs' alleged injury.
Finally, the court concludes that the complaint fails to provide a "short and plain statement" of the claim showing that the pleader is entitled to relief. See FED. R. Civ. P. 8(a)(2). Thus, the complaint fails to give the defendants any notice as to what the claims against them are and, therefore, does not satisfy even the liberal pleading standard laid out in Federal Rule of Civil Procedure 8 and Conley v. Gibson.
Because the plaintiffs have failed to state a claim on which relief can be granted, the court will grant the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).

IV. CONCLUSION
For all these reasons, the court grants the defendants' motions to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). An order directing the parties in a manner consistent with this Memorandum Opinion is separately and contemporaneously executed and issued this 16th day of July, 2001.
NOTES
[1]  On a motion to dismiss, the court must accept the plaintiffs' well-pleaded factual allegations as true, excluding those that are overbroad and unsupported by specific factual averments. See Pitney Bowes v. United States Postal Serv., 27 F.Supp.2d 15, 19 (D.D.C. 1998) (Urbina, J.). In this case, though, because the complaint includes only scant background facts, the court will use the facts as presented by the defendants. In reaching its decision, however, the court will not rely on the defendants' version of the facts. To help describe the background facts, the court also draws from Exhibit C to defendant Howrey's motion to dismiss, which contains the plaintiffs' complaint from Mount v. Riley.
[2]  The court notes that defendant Howrey's motion to dismiss does not specify what the three counts were.
[3]  The parties did not indicate when Mr. Coburn was fired.
[4]  The court agrees with the defendants that District of Columbia tort law should apply. The plaintiffs are silent on this issue.


180 Ill. App.3d 792 (1989)
536 N.E.2d 469
THE PEOPLE OF THE STATE OF ILLINOIS, Plaintiff-Appellee,
v.
CHARLES R. DUCKWORTH, Defendant-Appellant.
No. 4-88-0704.
Illinois Appellate Court  Fourth District.
Opinion filed March 23, 1989.
Rehearing denied April 24, 1989.
*793 Glenn H. Collier, of Jackson, Mitchell & Collier, of Peoria, for appellant.
Craig H. DeArmond, State's Attorney, of Danville (Kenneth R. Boyle, Robert J. Biderman, and James Overholt, all of State's Attorneys Appellate Prosecutor's Office, of counsel), for the People.
Judgment reversed.
JUSTICE GREEN delivered the opinion of the court:
Defendant Charles R. Duckworth was tried jointly with codefendant Tammy Duckworth on charges that they knowingly delivered a controlled substance in violation of section 401(a)(2) of the Illinois Controlled Substances Act (Act). (Ill. Rev. Stat. 1987, ch. 56 1/2, par. 1401(a)(2).) On April 29, 1988, the circuit court of Vermilion County entered judgment on jury verdicts finding both guilty of that offense. Defendant now appeals, contending (1) the court erred in admitting certain hearsay statements allegedly made by the codefendant and (2) the State failed to prove him guilty of the offense beyond a reasonable doubt. We reverse.
The testimony presented during the trial in this cause shows the following sequence of events, which was not contradicted. In July 1987, special agent Richard Scott of the Quad City Metropolitan Enforcement Group learned about a potential drug contact by the name of Tammy Duckworth through a confidential source. On July 8, 1987, Scott made two telephone calls to a woman in Danville. He later learned the voice of the woman he talked with on that date belonged to Tammy Duckworth.
Scott testified that, during the conversations with Tammy Duckworth, she agreed to sell him three ounces of cocaine every three to four weeks. He said she further informed him she would get the cocaine from an uncle who lived next door to her and the uncle told her each ounce of cocaine would cost $1,400. Scott and Tammy Duckworth arranged to meet on July 10, 1987, at the Village Mall in Danville to consummate the deal they had made.
On July 10, 1987, Scott arrived in Danville and proceeded to the arranged point with a Vermilion County surveillance team. He telephoned Tammy Duckworth, and she told him she would be driving a white Buick. He subsequently saw a vehicle fitting that description pull into the mall parking lot. He waved the driver over and asked her if her name was Tammy, to which she responded it was. Scott said that, when she entered his car, she told him "her uncle was going to be the source * * * and that her uncle had to show his man the money" before Scott could get the cocaine.
Scott refused to turn the money over to her without receiving the *794 drugs but said he "suggested to her that she have her uncle drive to the Village Mall [and] park a couple rows away from [his] car." Scott said she could then go between his car and her uncle's car with the cocaine, and he would give her the money. Tammy Duckworth left briefly and returned a second time. She informed Scott she could not get three ounces but could only obtain an ounce and a half of cocaine. Scott agreed to purchase the lesser amount for $2,700, and Tammy Duckworth again left the mall parking lot. Scott said that, when Tammy Duckworth later returned to his vehicle, she gave him two bags of a powdery substance thereafter proved to be cocaine. Scott proceeded to count out the money and signaled the surveillance units that the deal had been made. Tammy Duckworth was then placed under arrest.
Robert Putnam, one of the surveillance officers positioned at the mall parking lot, witnessed the first two contacts between Tammy Duckworth and Agent Scott. He said he subsequently saw a blue van enter the parking lot and park nearby. Tammy Duckworth exited the passenger side of the van, walked past the surveillance vehicle and entered Scott's car. Putnam was then notified delivery had been made. Putnam and another surveillance officer approached the van and ordered the man sitting in the driver's side to exit the vehicle. The man, defendant Charles Duckworth, was then placed under arrest. Another female passenger of the van was also arrested. Another surveillance officer, Jack Smith, corroborated the testimony given by Putnam.
Ordinarily, we would first address a reasonable doubt question raised by an accused, for resolution of such an issue could well decide the outcome of a case. However, because we conclude error occurred here in admitting certain hearsay evidence, we need not address the sufficiency of proof. Clearly, absent such hearsay evidence, the evidence is insufficient to convict defendant of the offense of delivery of a controlled substance beyond a reasonable doubt.
During trial, when the prosecution attempted to elicit the details of the conversations had between Scott and Tammy Duckworth, defendant's attorney objected to such testimony on hearsay grounds. He stated he thought "the conversation that the agent [was] probably going to get into  he's going to make reference to Tammy Duckworth saying that her uncle was going to be her source. I think that that is clearly hearsay." The court overruled the objection and allowed Scott to testify concerning the content of the conversations.
Defendant argues on appeal that the introduction of certain testimony violated the hearsay rule and should not have come in. He specifically *795 points to testimony by Scott that Tammy Duckworth told him her "uncle" would be her "source" and she would speak with her "uncle" about Scott's suggestion that he come to the mall lot with her to witness the transaction. He claims such evidence does not fall within the coconspirator exception to the hearsay rule because the State failed to prove the existence of a conspiracy through evidence independent of the hearsay statements. We agree.
 1 Declarations of a coconspirator made in furtherance of and during the pendency of a conspiracy are admissible against all conspirators upon an independent, prima facie evidentiary showing of a conspiracy between the declarant and other defendants. (People v. Goodman (1980), 81 Ill.2d 278, 408 N.E.2d 215.) While evidence of a conspiracy can be totally circumstantial, such evidence must be sufficient, substantial, and independent of the declarations made in order to admit statements by a declarant under the coconspirator exception to the hearsay rule. People v. Deatherage (1984), 122 Ill. App.3d 620, 461 N.E.2d 631.
Here, the evidence exclusive of those hearsay statements allegedly made by Tammy Duckworth was insufficient to establish a conspiracy between Tammy and the defendant. The State argues the evidence that Scott told Tammy to have her uncle return with her and park a few rows away and that a van with a male driver subsequently pulled into the parking lot and parked a short distance away from Scott's vehicle constituted sufficient, independent evidence of the existence of a conspiracy between the two codefendants.
 2, 3 While we recognize the acts and declarations of conspirators themselves may form an inferential basis for the existence of a conspiracy (People v. White (1984), 122 Ill. App.3d 24, 460 N.E.2d 802), the mere appearance of defendant at the scene of the drug transaction does not establish any illicit association between him and Tammy Duckworth. (People v. Evans (1981), 87 Ill.2d 77, 429 N.E.2d 520.) Tammy Duckworth's act in returning with defendant creates the inference that he is her uncle and source but is a verbal act which also constitutes impermissible hearsay. None of the nonhearsay evidence establishes an agreement between the two defendants, which is a necessary element of a simple conspiracy. Ill. Rev. Stat. 1987, ch. 38, par. 8-2.
 4 Since the State failed to prove the existence of a conspiracy between defendant and Tammy Duckworth, we conclude the trial court erred in allowing Scott to testify concerning those references to an "uncle" or "source" allegedly made by Tammy Duckworth during a conversation between her and Scott. We noted previously that, without *796 that evidence, the conviction against defendant cannot stand. Mere presence at the scene of a crime and knowledge that a crime is being committed are insufficient to establish guilt. Evans, 87 Ill.2d 77, 429 N.E.2d 520.
For the reasons stated, the judgment of the circuit court of Vermilion County is reversed.
Reversed.
LUND and SPITZ, JJ., concur.


538 F.Supp.2d 990 (2008)
UNITED STATES of America, Plaintiff,
v.
Clarence GILES, Defendant.
No. EP-07-CA-0381-PRM.
United States District Court, W.D. Texas, El Paso Division.
March 14, 2008.
*991 Susan B. Biggs, Assistant United States Attorney, San Antonio, TX, for Plaintiff.

MEMORANDUM OPINION AND ORDER GRANTING PLAINTIFF'S MOTION FOR DEFAULT JUDGMENT
PHILIP R. MARTINEZ, District Judge.
On this day, the Court considered Plaintiff the United States of America's "Motion for Entry of Default and Default Judgment," filed on January 3, 2008,[1] in the above-captioned cause. In its Motion, the Government moves the Court enter a default judgment against Defendant Clarence Giles on the grounds that Defendant *992 "has failed to plead or otherwise defend against the Complaint." Mot. 1. After due consideration, the Court is of the opinion that the Government's Motion should be granted and default judgment be entered against Defendant.

I. FACTUAL AND PROCEDURAL BACKGROUND
The Government initiated the instant suit by filing its "Complaint," on November 2, 2007. Therein, it alleges that Defendant executed and delivered a promissory note in order to secure a Direct Consolidation Loan from the United States Department of Education, which loan was issued to Defendant. The Government brought suit to enforce the promissory note. The Government attaches copies of the promissory note and a Certificate of Indebtedness to its Complaint, which reflect the principal amount of the debt to be $82,463.75, along with interest in the amount of $33,983.45, as of September 11, 2007, which continues to accrue at the rate of $18.36 each day. Compl. App. 2, 3. The Government requests a judgment in the amount of $116,447.20 (the sum of the principal and interest amounts); interest accruing on the principal at the rate of $18.36 per day from September 11, 2007, until the date of judgment; and interest at the post judgment rate provided by law. Compl. 2.
The Government asserts Defendant was served with a copy of the Complaint on November 26, 2007. Mot. App. 1, ¶ 3.[2] As the Summons sets forth, Defendant had twenty days in which to file a response.[3] Defendant has neither filed an answer or other pleading, nor entered any appearance before the Court.[4]

II. LAW AND ANALYSIS

A. Default Judgment
Rule 55 of the Federal Rules of Civil Procedure sets forth certain conditions under which default may be entered against a party, as well as the procedure by which a party may seek the entry of default judgment. FED.R.CIV.P. 55. If a party "against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend" a case, and "that failure is shown by affidavit or otherwise, the clerk must enter the party's default." Id. at 55(a). Judgment by default may be entered when a party entitled to a judgment by default moves the Court for entry of such judgment. Id. at 55(b). The Fifth Circuit has concisely summarized the steps leading up to default judgment.
A default is when a defendant has failed to plead or otherwise respond to the complaint within the time required by the Federal Rules. An entry of default is what the clerk enters when the default is established by affidavit or otherwise... After defendant's default has been entered, plaintiff may apply for a judgment based on such default. This is a default judgment. *993 New York Life Ins. Co. v. Brown, 84 F.3d 137, 141 (5th Cir.1996) (emphasis in original).
"Default judgments are a drastic remedy, not favored by the Federal Rules and resorted to by courts only in extreme situations." Sun Bank of Ocala v. Pelican Homestead & Sav. Ass'n, 874 F.2d 274, 276 (5th Cir.1989). In accord with that policy, "[a] party is not entitled to a default judgment as a matter of right, even where the defendant is technically in default." Ganther v. Ingle, 75 F.3d 207, 212 (5th Cir.1996). Rather, a default judgment is generally committed to the discretion of the district court. Mason v. Lister, 562 F.2d 343, 345 (5th Cir.1977).
In order to properly resolve the Government's Motion, the Court must determine: (1) whether default judgment is procedurally warranted; (2) whether the Government's Complaint sufficiently sets forth facts establishing that it is entitled to relief; and (3) what form of relief, if any, the Government should receive. See, e.g., Pepsico, Inc. v. Cal. Security Cans, 238 F.Supp.2d 1172 (C.D.Cal.2002) (analyzing motion for entry of default judgment by considering procedural requirements, substantive merits, and appropriate relief).

B. Procedural Requirements Necessary for Default Judgment
Rule 55(a) permits the clerk of court to enter default against a party who has "failed to plead or otherwise defend" a lawsuit. FED.R.CIV.P. 55(a). Thus, the propriety of a default judgment depends, in part, on the propriety of the entry of default. In the instant case, Defendant defaulted by failing to enter an appearance or `defend the suit, despite being personally served with notice thereof on November 30, 2007. See Docket No. 4.
Pursuant to Federal Rule of Civil Procedure 12(a)(1)(A), Defendant was required to file an answer to the Complaint no later than twenty days after service, or December 20, 2007. Despite being properly served, Defendant defaulted by failing to "plead or otherwise defend," and, on January 3, 2008, the clerk entered default, pursuant to Rule 55(a). (Docket No. 6). The Court concludes that the clerk's Entry of Default was proper because the Government's claim "is for a sum certain," and an affidavit was attached to the Government's Motion attesting to the amount of its claim. See FED.R.CIV.P. 55(b)(1) ("If the plaintiffs claim is for as sum certain ... the clerk  on the plaintiff's request, with an affidavit showing the amount due  must enter judgment and costs against a defendant who has been defaulted for not appearing.")

C. Sufficiency of the Government's Complaint and Substantive Causes of Action
Default judgment is proper only if the well-pleaded factual allegations in the Government's Complaint establish a valid cause of action. In other words, "[t]here must be a sufficient basis in the pleadings for the judgment." Nishimatsu Const. Co., Ltd. v. Houston Nat'l Bank, 515 F.2d 1200, 1206 (5th Cir.1975). A defendant, "by his default, admits the plaintiff's well-pleaded allegations of fact." Id. See also Geddes v. United Fin. Group, 559 F.2d 557, 560 (9th Cir.1977) ("The general rule of law is that upon default the factual allegations of the complaint, except those relating to the amount of damages, will be taken as true"). Therefore, the Court may only enter default judgment against Defendant if the Government's well-pleaded factual allegations establish a cause of action entitling it to relief.
The Government asserts that Defendant defaulted on a promissory note that he "executed and delivered" to the Government, in order to secure a Direct Consolidation *994 Loan from the United States Department of Education. Compl. ¶ 3. The Government asserts that the Court has jurisdiction over this action because it is brought by the United States pursuant to 28 U.S.C. § 1345.[5] Compl. ¶ 1.
"To recover on a promissory note, the Government must show (1) the defendant signed it, (2) the government is the present owner or holder, and (3) the note is in default." United States v. Lawrence, 276 F.3d 193 (5th Cir.2001). In this case, the Government has produced a copy of a promissory note, bearing a signature that appears to be that of Defendant, which indicates that the United States Department of Education is the holder of the note. Further, the Government has presented a "Certificate of Indebtedness," signed under penalty of perjury by Alberto Francisco, a Senior Loan Analyst, which indicates Defendant "secure[d] a Direct Consolidation loan from the U.S. Department of Education ... and [Defendant] defaulted on the obligation on 12/2/2002." Compl. App. 1. The Court finds that this evidence is sufficient to establish the Government's right to recover on the promissory note at issue. Accordingly, the Court finds the well-pleaded allegations in the Government's Complaint establish a valid cause of action.

D. Relief Requested by the Government
Federal Rule of Civil Procedure 54(c) states that "[a] default judgment must not differ in kind from, or exceed in amount, what is demanded in the pleadings." FED.R.CIV.P. 54(c). In other words, the relief prayed for in a complaint defines the scope of relief available on default judgment. In its Complaint, the Government requests the Court enter judgment in the amount of $116,447.20 (representing $83,463.75 in principal and $33,983.45 in interest accrued through September 10, 2007), in addition to interest at the rate of $18.36 per day from September 11, 2007, until judgment is entered, interest at the post judgment rate set forth in 28 U.S.C. § 1961(b), until the judgment is paid in full, its costs and attorney's fees, and whatever other relief the Court deems just. Compl. 2. The Court finds that the requested relief is appropriate, given the uncontroverted evidence presented by the Government with respect to the outstanding debt owed to it by Defendant.

III. CONCLUSION
Based on the above analysis of facts and legal principles, the Court concludes that the Government's Motion for Default Judgment should be granted in its entirety.
Accordingly, IT IS ORDERED that Plaintiff the United States of America's "Motion for Entry of Default and Default Judgment" (Docket No. 5) is GRANTED.
IT IS FURTHER ORDERED that Plaintiff the United States of America is awarded: (1) $116,447.20 (representing $83,463.75 in principal and $33,983.45 in interest accrued through September 10, 2007), (2) interest at the rate of $18.36 per day from September 11, 2007 until the date of this Order, (3) interest at the post judgment rate set forth in 28 U.S.C. § 1961(b), to be compounded annually until the judgment is paid in full, and (4) all costs of court and attorney's fees.
IT IS FURTHER ORDERED that the above-captioned cause be, and hereby is, DISMISSED.
*995 IT IS FURTHER ORDERED that all pending motions, if any, are DENIED AS MOOT.
IT IS FINALLY ORDERED that the Clerk shall CLOSE this matter.
NOTES
[1]  To date, Defendant has neither entered an appearance nor filed any document in the above-captioned cause.
[2]  This assertion is set forth in Susan B. Biggs' "Affidavit for Default." Biggs is an Assistant United States Attorney for the Western District of Texas who represents the Government in the instant case.
[3]  Had Defendant been served on November 26, 2007, he would have had until December 17, 2007, to file an Answer to the Complaint. FED.R.CIV.P. 4. However, the "Process Receipt and Return" filed in this case indicates the United States Marshals Service served Defendant with a copy of the Summons, the Government's Complaint, and Instructions on November 30, 2007. Docket No. 4. Accordingly, Defendant's Answer would have been timely if filed on or before December 20, 2007.
[4]  It is unnecessary for the Court to resolve whether Defendant was served on November 26, 2007, or November 30, 2007.
[5]  28 U.S.C. § 1345 provides, "[T]he district courts shall have original jurisdiction of all civil actions, suits or proceedings commenced by the United States, or by any agency or officer thereof expressly authorized to sue by Act of Congress."


157 B.R. 499 (1993)
In re Joseph MADJERAC and Antoinette Madjerac, Debtors.
Bankruptcy No. 93-20256(7).
United States Bankruptcy Court, D. Maine.
August 10, 1993.
Daniel R. Felkel, Richardson & Troubh, Portland, ME, for debtors.
Robert F. MacDonald, Bernstein, Shur, Sawyer & Nelson, Portland, ME, for First NH Bank.

MEMORANDUM OF DECISION
JAMES A. GOODMAN, Chief Judge.
On March 30, 1993, Joseph and Antoinette Madjerac (the "Debtors") filed a petition under 11 U.S.C. Chapter 7. On the date of filing, the Debtors owned three parcels of real estate, each encumbered by the cross-collateralized first mortgage of First New Hampshire Mortgage Corporation ("First N.H.") in the amount of $2,100,000.00. The properties were also encumbered by the attachment lien of Fleet Bank of Maine ("Fleet") in the amount of $72,802.38 as against Joseph Madjerac and $52,694.27 as against Antoinette Madjerac. The parties have stipulated that the total value of the three properties is $1,852,000.00. Consequently, First N.H.'s mortgages far exceed the value of the properties such that, even excluding Fleet's attachment lien, there is no equity in the properties. The Debtors have filed a motion to avoid Fleet's lien, alleging that the lien is completely unsecured and therefore should be deemed void under 11 U.S.C. § 506(a) and (d).
There is no basis to distinguish the facts of this case from those of Dewsnup v. Timm, ___ U.S. ___, 112 S.Ct. 773, 116 L.Ed.2d 903 (1992), in which the Supreme Court held that a Chapter 7 debtor could not, through 11 U.S.C. § 506(a) and (d), "strip down" a creditor's lien to the value of the collateral securing the lien. This Court rejects the Debtors' argument that In re Cullen, 150 B.R. 1 (D.Me.1992), should be broadened to include Chapter 7 cases. Cullen recognized that in Dewsnup, a Chapter 7 proceeding, the Supreme Court made its holding applicable only to the particular facts before it. Implicit in Cullen was the fact that it was a Chapter 13 case, thereby rendering Dewsnup inapplicable. See In re Jones, 152 B.R. 155 (D.Mich.1993) (enumerating reasons why Dewsnup does not apply in Chapter 13 cases). The language discussing judicial liens bolstered that decision, recognizing that certain policies considered by the Supreme Court would not be violated. However, Cullen was decided in the context of Chapter 13 and the policy considerations therein and, thus, cannot be extended to apply to this Chapter 7 debtor.
Since Dewsnup, other courts have addressed the issue and have not allowed lien stripping of consensual or non-consensual liens in Chapter 7 cases. See Matter of Windham, 136 B.R. 878 (D.Fla.1992); In re Wise, 151 B.R. 116 (D.Ohio.1992); In re Jablonski, 139 B.R. 150 (D.Pa.1992); In re Warner, 146 B.R. 253 (D.Cal.1992). Accordingly, this Court will apply the holding of the Supreme Court in Dewsnup to the case at hand.
*500 The foregoing constitutes findings of fact and conclusions of law pursuant to F.R.Bky.P. 7052. An appropriate order shall enter.

ORDER
Pursuant to a Memorandum of Decision of even date herewith, it is hereby
ORDERED that the Debtors' motion to avoid judgment lien of Fleet Bank of Maine is denied.