F I L E D

United States Court of Appeals

Tenth Circuit

JAN 31 2001

PATRICK FISHER

Clerk

PUBLISH

UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ARTHUR DURAN,

Plaintiff-Appellant,

v.

DEAN CARRIS; DOS GRIEGOS

CORPORATION; DOS GRIEGOS

LIMITED,

Defendants-Appellees.

No. 00-2114

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW MEXICO

(D.C. No. CIV-98-1508-JP)

Submitted on the briefs:

Arthur Duran, Pro Se.

Joseph F. Canepa of Canepa, Vidal, Ahern & Hyatt, Santa Fe, New Mexico,

for Defendants-Appellees.

Before BALDOCK , ANDERSON , and HENRY , Circuit Judges.

PER CURIAM .
1 After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is

therefore ordered submitted without oral argument.

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Plaintiff-appellant Arthur Duran appeals the district court’s order granting

defendants’ motion to dismiss his second amended complaint for failure to state

a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6). 

We exercise jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1

I.

Because, in his brief, plaintiff failed to provide this court with a complete

recitation of the underlying facts of this case, the following depiction of the

factual background is gleaned from the district court’s order, Mr. Duran’s second

amended complaint, and defendants’ brief. In 1995, defendants were seeking to

build a subdivision on property adjacent to that owned by Mr. Duran. An

easement and boundary dispute arose and defendants refused to accept a

surveyor’s report obtained by Mr. Duran to settle the dispute. When Mr. Duran

threatened defendants with a lawsuit, defendant Dean Carris allegedly threatened

to tie him up in court disputes for ten years.

At the time this dispute arose, Mr. Duran sat on the county subdivision

review committee that was considering defendants’ application for approval of the
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planned subdivision. Mr. Duran alleged that while he was still serving on this

committee, Mr. Carris attempted to bribe him by offering to sell him the disputed

land at a favorable price in return for his vote and influence with the committee to

gain approval for the subdivision. Mr Duran also alleged that Mr. Carris blamed

him for the fact that the approval had been delayed and threatened him in order to

prevent him from speaking out against the subdivision. Mr. Duran averred that

Mr. Carris, wearing dark glasses and smoking a cigar, told him that if they were

in Chicago, “he wouldn’t be around.” R. Vol. 1, tab 39 at 5-6.

In October 1995, Mr. Duran filed suit in New Mexico state court over

the property dispute. Defendants counterclaimed, alleging trespass because

Mr. Duran was building a rock wall on land allegedly owned by defendants. 

Defendants ultimately quitclaimed the disputed property to Mr. Duran and

dismissed their counterclaim.

In 1997, Mr. Duran filed a second lawsuit in New Mexico state court

seeking to reform his deed and to quiet title to the disputed property that was the

subject of the 1995 lawsuit. He claimed that this second lawsuit was necessary

because defendants had prevented him from litigating these issues in the first

lawsuit. Again defendants counterclaimed, alleging slander of title based on

Mr. Duran’s lis pendens on the property, and for abuse of process. In the summer

of 1998, the district court granted defendants’ motion for summary judgment, and
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defendants dismissed their counterclaims. At the time of this appeal, Mr. Duran

was in the process of appealing this state court decision.

On December 10, 1998, Mr. Duran filed his first complaint in federal

district court. The complaint at issue here, his second amended complaint, was

filed on October 8, 1999. In this complaint, Mr. Duran alleged that defendants’

actions, by and through Mr. Carris, violated the Racketeer Influenced and Corrupt

Organizations Act of 1970 (RICO), 18 U.S.C. §§ 1961-68, and a number of state

laws. The district court granted defendants’ motion to dismiss, concluding that

Mr. Duran’s second amended complaint failed to state a claim under RICO, and

declining pendant jurisdiction over Mr. Duran’s state law claims. In so doing, the

court determined that Mr. Duran failed to establish a pattern of racketeering or

that the alleged predicate acts posed a threat of continued criminal activity. The

court concluded that the matter was basically “a boundary dispute and a dispute

over prescriptive rights between adjoining landowners,” which was settled and

unlikely to occur again. R. Vol. 1, tab 51 at 8. Mr. Duran appeals.

II.

“The court’s function on a Rule 12(b)(6) motion is not to weigh potential

evidence that the parties might present at trial, but to assess whether the

plaintiff’s complaint alone is legally sufficient to state a claim for which relief

may be granted.” Sutton v. Utah State Sch. for the Deaf & Blind , 173 F.3d 1226,
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1236 (10th Cir. 1999) (quotation omitted). The legal sufficiency of a complaint is

a question of law; hence, a Rule 12(b)(6) dismissal is reviewed de novo. Id.

In reviewing the district court’s decision we accept as true all well-pleaded

allegations in the complaint and construe them in favor of the nonmoving party. 

Id. “Granting defendant’s motion to dismiss is a harsh remedy which must be

cautiously studied, not only to effectuate the spirit of the liberal rules of pleading

but also to protect the interests of justice.” Cottrell, Ltd. v. Biotrol Int’l, Inc. ,

191 F.3d 1248, 1251 (10th Cir. 1999) (quotations omitted).

Section 1962(c) of RICO makes it “unlawful for any person employed by

or associated with any enterprise engaged in, or the activities of which affect,

interstate or foreign commerce, to conduct or participate, directly or indirectly, in

the conduct of such enterprise’s affairs through a pattern of racketeering activity

or collection of unlawful debt.” RICO defines “pattern of racketeering activity”

as requiring “at least two acts of racketeering activity” within a ten-year period. 

Id. § 1961(5).

In his complaint, Mr. Duran alleges that defendants engaged in a pattern of

racketeering activity including extortion and bribery. In order to satisfy RICO’s

pattern requirement, Mr. Duran must show two elements--“a relationship between

the predicates” and “the threat of continuing activity.” H.J. Inc. v. Northwestern

Bell Tel. Co. , 492 U.S. 229, 239 (1989) (quotation omitted). Interpreting RICO’s
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legislative history, the Supreme Court stated that the pattern element is not

satisfied by a showing of relatedness alone. Id. at 240. “[I]t must also be shown

that the predicates themselves amount to, or that they otherwise constitute a threat

of, continuing racketeering activity.” Id.

Mr. Duran has alleged two predicate acts--bribery and extortion. He claims

that Carris’s offer to sell him the disputed land in exchange for his favorable

consideration of defendants’ application for approval of the subdivision

constituted bribery. He further contends that Mr. Carris committed extortion

when he threatened Mr. Duran with bodily injury in order to prevent him from

speaking out against the subdivision, when he threatened to tie him up in court for

ten years, and when he filed counterclaims in Mr. Duran’s two lawsuits. 

The district court concluded, and we agree, that, even if the acts Mr. Duran

alleged are related as part of a common scheme, he has failed to show that they

pose a threat of continuing criminal activity. At best, what Mr. Duran alleged

is “actually a closed-ended series of predicate acts constituting a single

scheme . . . to accomplish a discrete goal [approval of the subdivision] directed

at a finite group of individuals [Mr. Duran] ‘with no potential to extend to other

persons or entities.’” Boone v. Carlsbad Bancorporation, Inc. , 972 F.2d 1545,

1556 (10th Cir. 1992) ( quoting Sil-Flo, Inc. v. SFHC, Inc. , 917 F.2d 1507, 1516
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(10th Cir. 1990)). Therefore, “[t]hey do not . . . satisfy the H.J. Inc. test of

continuity.” Id.

We reject Mr. Duran’s argument that, because, in 1995, Mr. Carris

threatened to keep him involved in litigation for ten years, the threat of continued

criminal activity is met. Mr. Duran initiated all of the litigation surrounding this

dispute, and it appears that, except for Mr. Duran’s state court appeal of the grant

of summary judgment in his last action, the litigation is complete. At most, what

Mr. Duran alleged is a property dispute which turned hostile at times. He has not,

however, alleged the type of long-term criminal activity envisioned by Congress

when it enacted RICO. Therefore, the district court’s grant of defendants’ motion

to dismiss Mr. Duran’s RICO claims in his second amended complaint was

appropriate.

III.

Lastly, we address defendants’ request for sanctions alleging that Mr.

Duran’s pro se brief was actually “ghost-written” by his former attorney, Harry

Snow. We issued a show cause order requesting that Mr. Duran and Mr. Snow

show cause as to why this court should not sanction this behavior. We have

received and considered the parties’ response.

This court is concerned with attorneys who “author[] pleadings and

necessarily guide[] the course of the litigation with an unseen hand.” Johnson
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v. Bd. of County Comm’rs , 868 F. Supp. 1226, 1231 (D. Colo. 1994). Fed. R. Civ.

P. 11(a) requires that “[e]very pleading, written motion, and other paper shall

be signed by at least one attorney of record in the attorney’s individual name, or if

the party is not represented by an attorney, shall be signed by the party.” 

Mr. Snow’s actions in providing substantial legal assistance to Mr. Duran without

entering an appearance in this case not only affords Mr. Duran the benefit of this

court’s liberal construction of pro se pleadings, see Haines v. Kerner , 404 U.S.

519, 520-21 (1972), but also inappropriately shields Mr. Snow from responsibility

and accountability for his actions and counsel.

As stated in a recent law review article:

The duty of candor toward the court mandated by Model Rule

3.3 is particularly significant to ghostwritten pleadings. If neither

a ghostwriting attorney nor her pro se litigant client disclose the fact

that any pleadings ostensibly filed by a self-represented litigant were

actually drafted by the attorney, this could itself violate the duty of

candor. The practice of undisclosed ghostwriting might be

particularly problematic in light of the special leniency afforded

pro se pleadings in the courts. This leniency is designed to

compensate for pro se litigants’ lack of legal assistance. Thus, if

courts mistakenly believe that the ghostwritten pleading was drafted

without legal assistance, they might apply an unwarranted degree of

leniency to a pleading that was actually drafted with the assistance of

counsel. This situation might create confusion for the court and

unfairness toward opposing parties. It is therefore likely that the

failure to disclose ghostwriting assistance to courts and opposing

parties amounts to a failure to “disclose a material fact to a tribunal

when disclosure is necessary to avoid assisting a criminal or

fraudulent act by the client,” which is prohibited by Model Rule 3.3. 

Undisclosed ghostwriting would also likely qualify as professional

misconduct under Model Rules 8.4(c) and (d), prohibiting conduct
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involving a misrepresentation, and conduct that is prejudicial to the

administration of justice, respectively.

John C. Rothermich, Ethical and Procedural Implications of “Ghostwriting” for

Pro Se Litigants: Toward Increased Access to Civil Justice, 67 Fordham L. Rev.

2687, 2697 (1999) ( citing Model Rules of Prof’l Conduct R 3.3(a)(2)) (footnotes

omitted).

It is disingenuous for Mr. Duran and Mr. Snow to argue that ghost writing

represents a positive contribution such as reduced fees or pro bono representation. 

Either of these kinds of professional representation are analogous to the concept

of rescue in the field of torts. A lawyer usually has no obligation to provide

reduced fee or pro bono representation; that is a matter of conscience and

professionalism. Once either kind of representation is undertaken, however, it

must be undertaken competently and ethically or liability will attach to its

provider.

Competence requires that a lawyer conduct a reasonable inquiry and

determine that a filed pleading is not presented for an improper purpose, the

positions taken are nonfrivolous, and the facts presented are well grounded. 

Fed. R. Civ. P. 11(b). Ethics requires that a lawyer acknowledge the giving of

his advice by the signing of his name. Besides the imprimatur of professional

competence such a signature carries, its absence requires us to construe matters
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differently for the litigant, as we give pro se litigants liberal treatment, precisely

because they do not have lawyers. See Haines, 404 U.S. at 520-21.

We determine that the situation as presented here constitutes

a misrepresentation to this court by litigant and attorney. See Johnson ,

868 F. Supp. at 1231-32 (strongly condemning the practice of ghost writing as

in violation of Fed. R. Civ. P. 11 and ABA Model Code of Professional

Responsibility DR 1-102(A)(4)). Other jurisdictions have similarly condemned

the practice of ghost writing pleadings. See, e.g., Ellis v. Maine , 448 F.2d 1325,

1328 (1st Cir. 1971) (finding that a brief, “prepared in any substantial part by

a member of the bar,” must be signed by him); Ellingson v. Monroe (In re

Ellingson) , 230 B.R. 426, 435 (Bankr. D. Mont. 1999) (finding “[g]host writing”

in violation of court rules and ABA ethics); Wesley v. Don Stein Buick, Inc. ,

987 F. Supp. 884, 885-86 (D. Kan. 1997) (expressing legal and ethical concerns

regarding the ghost writing of pleadings by attorneys); Laremont-Lopez v.

Southeastern Tidewater Opportunity Ctr. , 968 F. Supp. 1075, 1077 (E.D. Va.

1997) (finding it “improper for lawyers to draft or assist in drafting complaints

or other documents submitted to the Court on behalf of litigants designated as

pro se”); United States v. Eleven Vehicles , 966 F. Supp. 361, 367 (E.D. Pa. 1997)

(finding that ghost writing by attorney for pro se litigant implicates attorney’s

duty of candor to the court, interferes with the court’s ability to supervise the
2

“[A]ttorneys must recognize that if they continue to provide assistance to

an ostensibly pro se litigant throughout the course of the litigation, then

disclosure of drafting assistance alone would be insufficient to satisfy their

obligations to the court.” Rothermich, supra at 2712 & n.211.

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litigation, and misrepresents the litigant’s right to more liberal construction as

a pro se litigant). 

We recognize that, as of yet, we have not defined what kind of legal advice

given by an attorney amounts to “substantial” assistance that must be disclosed to

the court. Today, we provide some guidance on the matter. We hold that the

participation by an attorney in drafting an appellate brief is per se substantial, and

must be acknowledged by signature. 2

 In fact, we agree with the New York City

Bar’s ethics opinion that “an attorney must refuse to provide ghostwriting

assistance unless the client specifically commits herself to disclosing the

attorney’s assistance to the court upon filing.” Rothermich, supra at 2712 ( citing

Committee on Prof’l and Judicial Ethics, Ass’n of the Bar of the City of New

York, Formal Op. 1987-2 (1987)). We caution, however, that the mere assistance

of drafting, especially before a trial court, will not totally obviate some kind of

lenient treatment due a substantially pro se litigant. See id. at 2711-12. We hold

today, however, that any ghostwriting of an otherwise pro se brief must be

acknowledged by the signature of the attorney involved. 
3

“It is also important to recognize the Model Rule 1.16, generally

prohibiting withdrawal that would materially harm the client’s interest, is of

particular importance to any analysis of ghostwriting.” Rothermich, supra

at 2697.

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Finally, in response to this court’s show cause order, Mr. Snow claimed

the high ground for “representing” Mr. Duran on appeal at a reduced fee. He

suggests that his representation of Mr. Duran in the trial court afforded him

enough familiarity with the case to be able to offer Mr. Duran assistance with his

appeal at a much reduced fee. We note the irony in Mr. Snow’s rationalization

that he should be commended for assisting Mr. Duran on appeal at a reduced rate

and yet failing to continue that representation on appeal, or to even acknowledge

that some form of assistance was given. 3

 We do not allow anonymous testimony

in court; nor does this circuit allow ghostwritten briefs. Therefore, we admonish

Mr. Snow that this behavior will not be tolerated by this court, and future

violations of this admonition will result in the possible imposition of sanctions.

The judgment of the United States District Court for the District of

New Mexico is AFFIRMED.