Summary
holding that prosecutorial decisions fall within the discretionary function exception
Summary of this case from Huntress v. United StatesOpinion
01 Civ. 1326 (HB).
October 24, 2001
OPINION ORDER
Cheng Yong Wang and Xingqi Fum (collectively, "plaintiffs") asserted claims of false arrest and malicious prosecution under the Federal Tort Claims Act, 28 U.S.C. § 1346 and 2671 et seq. ("FTCA"), in connection with their 1998 arrests for their alleged role in a conspiracy to sell human organs of executed Chinese prisoners for transplantation into private medical clients. Defendant United States of America (the "government") moves to dismiss plaintiffs' claims for lack of subject matter jurisdiction and for failure to state a claim upon which relief can be granted, pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Procedure. For the reasons discussed below, the government's motion is granted in part and denied in part.
BACKGROUND
In deciding a motion to dismiss for failure to state a claim upon which relief can be granted, the court "must accept the material facts alleged in the complaint as true." Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994).
In May 1997, Cheng Yong Wang ("Wang"), a former public prosecutor in China, entered the United States under a B 1 visa. Later that year, in an effort to extend his visa Wang sought immigration advice and was referred to Paul Risenhoover who purported to be a qualified immigration attorney. Risenhoover, who was not in fact an attorney, nonetheless submitted an application on Wang's behalf which was subsequently denied. Prior to submitting the application Risenhoover had asked Wang to join an organization founded by Risenhoover, the Pacific Lighthouse Mission ("PLM"), whose aims included the overthrow of the Chinese Government. When Wang declined to join PLM Risenhoover stated that the visa application would fail. The connections, if any, between Risenhoover's representations and the denial of Wang's visa application are unclear.
In December 1997 or January 1998, Risenhoover proposed that Wang meet with "Dr. Hong," a Chinese doctor from a dialysis center in Aruba who was interested in procuring Chinese organs for implantation in his wealthy patients. Risenhoover suggested that Wang could apply for a visa through the Netherlands, of which Aruba is a colony, if he provided the requested assistance to Dr. Hong. Between February 6, 1998 and February 20, 1998, Risenhoover and/or Dr. Hong spoke with Wang several times about the proposal. On February 12, 1998, Dr. Hong, who was in fact Harry Wu ("Wu"), a political activist who had several times testified before the United States Congress on various human rights issues, including organ transplantation from Chinese prisoners and his experience as a prisoner in China, contacted FBI Special Agent Jill Marangoni ("Marangoni") and advised her of his conversations with Wang. Wu also told Marangoni that he was scheduled to meet Risenhoover and Wang the following day to discuss and sign a contract, drafted by Risenhoover and Wu, whereby Wang agreed to procure organs from China for patients of the Aruba dialysis center. Following this conversation with Marangoni the government met with Wu and learned from Risenhoover's attorney, Carlyle Hatfield, that Risenhoover might have worked for an unnamed U.S. intelligence agency. Risenhoover then traveled to New York where he entered into a cooperation agreement with the FBI. Pursuant to this agreement, the FBI recorded telephone conversations between Risenhoover and Wang. As the conversations were in Chinese, Risenhoover provided translations to the FBI.
I presume, though the Complaint does not say, that the visa would be for travel to the United States, and not to the Netherlands.
The Complaint doesn't state whether the contract was signed, but the decision Judge Batts dismissing the indictment states that a draft contract was signed on February 13, 1998. United States v. Wang, 98 Cr. 199, 1999 U.S. Dist. LEXIS 2913 (S.D.N.Y. 1999).
On February 19, 1998, Risenhoover invited Wang to a meeting in a Manhattan hotel and instructed Wang to bring his American representative, Xingqi Fum, a/k/a Frank Fu ("Fu"). The meeting, which occurred the following day, included Risenhoover, Wang, Fu and FBI Special Agent Joseph Kuhns ("Kuhns") who was posing as a board member of the Aruba dialysis center. Risenhoover led the meeting, and at one point presented Wang with $5,000 to pay for one cornea. Wang declined the money, stating that he had not yet investigated the possibility of acquiring organs, and would not do so until his return to China. Wang and Fu were arrested upon leaving the meeting.
Although Wang and Fu were scheduled for trial on February 1, 1999, the court dismissed the indictment because the government's case depended entirely upon evidence provided by Risenhoover, who had left the country and was unavailable for trial, and whose credibility was seriously in doubt given his fraudulent immigration practices, other alleged criminal activities involving the sale of organs, and political animus against China. See United States v. Wang, 98 Cr. 199, 1999 U.S. Dist. LEXIS 2913 (S.D.N.Y. 1999). Further, the court was concerned that the government had both refused to produce Brady information about Risenhoover to defendants until ordered to do and had made no effort to remain in contact with Risenhoover or take steps to ensure his availability for trial. In July 1999, after Risenhoover's return to the United States, the Court reinstated the indictment but adhered to its earlier decision to exclude the tape recordings in which Risenhoover had participated and the statements by Wang relating to Fu. The government filed an appeal of the evidentiary decisions, but following an interview with Wang by prosecutors and the FBI recommended that an order of nolle prosequi be filed.
Under Brady v. Maryland, 373 U.S. 83 (1963), the prosecution has a constitutional duty to disclose evidence favorable to an accused when such evidence is material to guilt or punishment. Id. at 87. This duty covers not only exculpatory material, but also information that could be used to impeach a key government witness. See Giglio v. United States, 405 U.S. 150, 154 (1972).
Plaintiff filed suit in this Court on February 22, 2001, asserting false arrest and malicious prosecution under the FTCA and seeking $12 million in damages.
DISCUSSION
The FTCA does not create new causes of action; instead, it "serves to convey jurisdiction when the alleged breach of duty is tortious under state law, or when the Government has breached a duty under federal law that is analogous to a duty of care recognized by state law." Medina v. United States, 259 F.3d 220 (4th Cir. 2001). Here, plaintiffs have brought the common law claims of malicious prosecution and false arrest under the FTCA against the government. The government moves to dismiss the malicious prosecution claims on two grounds, lack of subject matter jurisdiction and failure to state a claim. Specifically, the government argues that the "intentional tort" and "discretionary function" exceptions apply to bar the Court's subject matter jurisdiction over the malicious prosecution claims, and that the complaint fails to adequately plead two elements of malicious prosecution, namely lack of probable cause to commence an action against the plaintiffs and malice.
Nonetheless, for simplicity's sake I will refer to common law claims brought pursuant to the FTCA as "FTCA claims."
The government seeks to dismiss the false arrest claims on the sole ground that the plaintiffs failed to timely file an administrative claim with respect thereto, as required by the FTCA.
Dismissal is appropriate only where "it appears beyond doubt that plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
A. Malicious Prosecution — Lack of Jurisdiction
In support of their malicious prosecution claim, plaintiffs allege that "[t]here was no probable cause for plaintiffs to be arrested or prosecuted" and that the government "through its agents, acted in this proceeding with malice in that they deliberately perpetrated the wrongful conduct for political and ideological reasons." Compl., ¶¶ 57-58. Although plaintiffs do not identify which "government" actors committed the alleged wrongs, only four actors were participants in the events: (1) the Assistant United States Attorneys ("AUSAs") who prosecuted, and later dismissed, the case; (2) the investigators, principally FBI agents Marangoni and Kuhns; (3) the informants, Wu and Risenhoover; and (4) the Justice Department and other policy making bodies of the federal government. In order to analyze the government's motion to dismiss the malicious prosecution claims, the Court must consider independently each of the above actors, whose respective activities are differently treated under the FTCA.
1. Prosecutors
The first set of actors whose conduct allegedly gives rise to the malicious prosecution claims are the prosecutors; however, for the reasons discussed below their conduct cannot support a FTCA claim.
The FTCA waives the federal government's immunity from tort liability with respect to certain negligent and wrongful acts of its employees and grants federal courts subject matter jurisdiction over actions commenced within its terms, subject to certain limitations. Under the terms of the FTCA, the Court has subject matter jurisdiction over claims of malicious prosecution only where the alleged conduct is that of "investigative or law enforcement officers of the United States Government." 28 U.S.C. § 2680 (h) (the so-called "intentional tort exception" to the waiver of immunity). Because a prosecutor is not acting as an "investigative or law enforcement officer" when he or she decides to prosecute, or for that matter declines to prosecute, the Court does not have jurisdiction under the FTCA over intentional tort claims arising from such decisions. See Bernard v. Clifford, 25 F.3d 98, 104 (2d Cir. 1994) (dismissing malicious prosecution claim); Gray v. Bell, 712 F.2d 490, 513 (D.C. Cir. 1983).
The intentional tort exception bars all claims "arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights." 28 U.S.C. § 2680 (h).
Moreover, there is a second, independent provision of the FTCA which precludes this Court's jurisdiction over claims arising from a prosecutor's decision to indict and prosecute — the so-called "discretionary function exception." This FTCA provision excludes from the waiver of sovereign immunity "any claim based upon . . . the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680 (a) (emphasis supplied). Designed "to prevent judicial `second guessing' of legislative and administrative decisions grounded in social, economic and political policy through the medium of an action in tort," United States v. S. A. Empressa Viacao Aerea Rio Grandense, 467 U.S. 797, 814 (1984), the discretionary tort exception applies when the challenged acts (1) involve an element of judgment of choice, and (2) are based on considerations of public policy. See United States v. Gaubert, 499 U.S. 315, 322-23 (1991).
It is well settled that the discretionary tort exception encompasses a prosecutor's decision to prosecute, even if that decision constitutes an abuse of prosecutorial discretion. See Morales v. United States, 94 civ. 4865, 1997 U.S. Dist. Lexis 7422, *2 (S.D.N.Y. 1997) (the FTCA "bars all claims of malicious prosecution against government prosecutors who, in their discretion, decide to prosecute and individual . . ."); Gray, 712 F.2d at 513 ("[p]rosecutorial decisions as to whether, when and against whom to initiate prosecution are quintessential examples of government discretion in enforcing criminal law, and, accordingly, courts have uniformly found them to be immune under the discretionary function exception"). In sum, the AUSAs' decision to prosecute Wang and Fu falls within the exception, and plaintiffs' allegations that the prosecutors were motivated by "political and ideological reasons," Compl., ¶¶ 57-58, do not change that result.
2. The Investigators
The second set of actors featured in the Complaint are the investigators, principally Marangoni and Kuhns. With respect to malicious prosecution claims, the discretionary function exception bars claims of malicious prosecution against government "investigative and law enforcement agents aiding in the investigation to whether to prosecute."Morales v. United States, 94-cv-4865, 1997 U.S. Dist. Lexis 7422, at *2 (S.D.N.Y. 1997); accord Gray, 712 F.2d at 516. However, the "exception does not protect investigative and law enforcement agents from such claims where the actions of those agents are `sufficiently separable` from the `protected discretionary decision' to prosecute." Morales v. 1997 U.S. Dist. Lexis 7422, at *2.
While courts have struggled to articulate clear rules for identifying conduct that is sufficiently separable," as a general rule a false arrest, without more, does not give rise to a malicious prosecution claim. C.f Morales v. 1997 U.S. Dist. Lexis 7422, at *3 (arrest without probable cause and obstruction of justice by giving false and misleading testimony in retribution for interference with the DEA's undercover surveillance operation gives rise to a malicious prosecution claim). To be actionable as malicious prosecution, the investigator's conduct must be independent or quasi-independent from the non-actionable decision to prosecute and must constitute the kind of wrongful conduct that is designed to corrupt the fairness of a prosecution. Cf. id.; Tri-State Hosp. Supply Corp., 142 F. Supp. at 100-101 (lying to bring about a prosecution gives rise to a FTCA claim); Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995) (disclosure of grand jury testimony to third parties is "sufficiently separable"). For that reason, allegations based on the "quality of the investigation" generally do not give rise to FTCA claims. See Pooler v. United States, 787 F.2d 868, 871 (3d Cir. 1986).
Here, the only wrongful conduct that plaintiffs have specifically ascribed to the investigators was their arrest for ideological reasons and without probable cause; and, while both allegations are troubling, neither gives rise to a cognizable malicious prosecution claim. First, the discretionary function exception is indifferent to the government actor's motivation see 28 U.S.C. § 2680 (a); second, the only wrongful conduct attributed to the investigators were the arrests of Wang and Fu, which for the reasons discussed above is not sufficient to state a FTCA claim for malicious prosecution; and third, under plaintiffs' own theory of the case the arrests were inextricably tied to the decision to prosecute, and therefore cannot constitute "sufficiently separable" acts. Indeed, the gravamen of plaintiffs' complaint is that for rather ill-defined political reasons the government coordinated its various agencies to target and prosecute Wang and Fu. The arrests by the FBI was merely one of many sequential steps in an orchestrated political campaign.
The complaint could be read to suggest that the investigators should not have relied upon informants, or should not have done so to such a degree. However, the decision to use informants, like Risenhoover and Wu, is a discretionary function, see Doe v. United States, 58 F.3d 494, 501 (9th Cir. 1995); Ostera v. United States, 769 F.2d 716, 718 (11th Cir. 1985), and an unreasonable dependence upon unreliable informants is similarly protected from liability. See Pooler, 787 F.2d at 871. Further, it is worth noting that the FBI did not solicit or recruit Risenhoover and Wu to act as informants or play an active role in running the sting; indeed the complaint alleges that the FBI did not learn of the conspiracy to sell human organs until Wu telephoned Marangoni on February 12, 1998, after the alleged conspiracy had already taken form.
3. The Informants
Because the FTCA conveys jurisdiction only for claims against government employees, the government is accountable in tort for the acts of Risenhoover and Wu only to the extent that they were acting as employees of the United States. See 28 U.S.C. § 2679 (b)(1). "Employees" is defined to be "persons acting on behalf of a federal agency," id., and includes persons acting as agents of the government.See BA Marine Co., Inc., v. American Foreign Shipping Co., Inc., 23 F.3d 709, 713 (2d. Cir. 1994); Alvarez-Machain v. United States, 99 civ. 56762, 2001 U.S. App. Lexis 20150, *28 (9th Cir. 2001) ("[lIaw enforcement officers cannot escape liability by recruiting civilians to do their dirty work"). Although the Court's research suggests that this issue — when is an informant an agent for FTCA purposes — has been the subject of few decisions, it is clear that an agency relationship arises only when the government exercises significant control over the informants. See Socialist Workers Party v. Atty. Gen. of the United States, 642 F. Supp. 1357, 1423 (S.D.N.Y. 1986) (finding that the informants were agents of the FBI); Alvarez-Machain, 2001 U.S. App. Lexis 20150, *29-30 (civilian was an agent, in part because civilian had no individual interest in his conduct other than "currying favor with the DEA agents in hopes that they would reward him").
Here, the complaint does not allege that either Risenhoover or Wu were acting as agents for the government, or that the government directed or supervised their activities, or in fact that they played any role in their activities before Risenhoover met with the FBI and entered into a cooperation agreement on or about February 17, 1998. Even after that date, the government's alleged role was limited to listening in on two telephone calls between Risenhoover and Wang, sending agent Kuhns to attend the February 20th meeting run by Risenhoover, and arresting Wang and Fu at the end of that meeting. Indeed, the complaint suggests that the government's role began late in the sting (which had been designed to achieve Risenhoover's and Wu's personal political objectives) and was largely passive; Wu and Risenhoover proposed the plan to Wang, drafted a contract setting forth his role in the conspiracy and only later contacted Marangoni.
Plaintiffs point to several factual allegations that they believe adequately plead governmental control, but without success. The alleged facts that Risenhoover had a prior relationship with an unspecified intelligence agency, see Compl. ¶ 12(f), is of no moment for two reasons. First, the allegation is made in conclusory form and without suggestion that there was any relationship between the events of this case and that alleged prior relationship. Second, in her decision dismissing the indictment against Wang and Fu, Judge Batts found that the alleged relationship with the unnamed intelligence agency ended in 1992, well prior to any of the allegations in the complaint in this case, and further stated that there was no evidence that such a relationship existed apart from Risenhoover's statement. Wang, U.S. Dist. Lexis 2913, at *96-97; see Zappia Middle East Constr. Co. v. Emirate of Abu Dhabi, 215 F.3d 247, 253 (2d Cir. 2000) (courts evaluating motions to dismiss for lack of subject matter jurisdiction "may resolve the disputed jurisdictional fact issues by reference to evidence outside the pleadings"). Plaintiffs also allege that Wu met with the government on November 3, 1997 following his appearance on the ABC television program "Prime Time Live" regarding trafficking in organs from executed Chinese prisoners, but there is no reason to believe that the meeting in any way concerned Wang or Fu. More importantly, as set forth in the Declarations of Jill Marangoni, Michael Porzio and AUSA Marcia Isaacson, the only money Wu received from the government was reimbursement for his travel expenses incurred in connection with his trip to New York to meet with the FBI and the United States Attorneys' Office. That money amounted to $259.30. "No other payments were made to Mr. Wu by the FBI during any time in which I was involved with the FBI's surveillance of Cheng Yong Wang and Frank Fu." Declaration of Jill Marangoni, dated June 19, 2001, ¶ 3.
4. Justice Department Other Government Agencies
To the extent that the Complaint alleges a political animus by the federal government, writ large, to embarrass the Chinese Government or for some other political purpose, it is not sufficient to sustain a FTCA claim for malicious prosecution. As stated elsewhere in this decision, the decision to prosecute and the reasons for doing so are protected by the discretionary function exception. See 28 U.S.C. § 2680 (a). Further, general allegations about the "government" as a whole, without reference to specific conduct, are not sufficient to establish jurisdiction. See Johnson v. United States, 788 F.2d 845, 854 (2d Cir. 1986) (a complaint brought under the FTCA must allege facts enabling the court to look beneath the language in the complaint to determine the substance of the claim").
For the reasons discussed above, the Court does not have jurisdiction over the malicious prosecution claim and the government's motion to dismiss that claim is granted.
I need not and do not reach the government's argument that plaintiffs failed to state a claim a malicious prosecution.
B. False Arrest — Lack of Jurisdiction
For a court to have jurisdiction over a FTCA claim, a plaintiff must have presented his or her claim to an administrative agency within two years of the claim's accrual. 28 U.S.C. § 2401 (b). Although this Court applies New York's law of false arrest and its statute of limitations, federal law determines when the statute of limitations begins to run. Wang and Fu were arrested on February 28, 1998 and did not file their administrative complaints until March 1, 2000. Consequently, if the false arrest claims accrued at the time of their arrests, the statute of limitations has already run and the claims are forfeit. If however, the claims accrued only when the criminal prosecution came to an end, they would be timely since Judge Batts did not sign the nolle prosequi until November 2, 1999, less than two years before Wang and Fu filed their administrative complaints. Under the rule set forth inCovington v. City of New York, 171 F.3d 117, to determine when a false arrest claim accrues the Court considers whether the prosecution could have obtained a conviction without using evidence tainted by the false arrest. If so, the claim accrues at the time of arrest. If not, the arrest accrues when the prosecution ends. See id.
A civil false arrest claim does not exist as long as there is a pending criminal prosecution based on evidence obtained from that arrest. To find otherwise would risk inconsistent civil and criminal judgments. Until a claim exists, it has not accrued. On the other hand, where the prosecution does not depend upon evidence obtained from the false arrest, there is no risk of inconsistent judgments, thus the claim exists at the time of arrest and immediately accrues. C.f. Covington v. City of New York, 171 F.3d 117.
While reasonably straightforward in theory, the Covington rule poses significant practical problems in application. The record before the Court does not disclose why the criminal case against Wang and Fu was dismissed, nor does it shed any light on what, if any, evidence was seized at the time of arrests or the importance of such evidence to the prosecution's case. Indeed, even if the Court had been apprised of all the paper evidence in the case and its origins, the determination of whether the criminal prosecution might have proceeded in the absence of evidence obtained pursuant to the alleged illegal arrests would hardly be a mere mechanical exercise. See Hall v. City of New York, 99 Civ. 979, 2001 U.S. Dist. LEXIS 13569, * 12-14 (S.D.N.Y. 2001). Put another way, underCovington, to determine whether the statute of limitations ran on a civil false arrest claim the court is obliged, it seems to me, to imagine how the prosecution might have ended had the evidence obtained pursuant to the arrest been suppressed. Here, I do not even know what evidence was obtained as a result of the Wang and Fu's arrest. Thus, I am constrained to deny the government's motion to dismiss. See Felton v. Maines Cash Carry. Inc., 00 civ. 239, 2001 U.S. Dist. Lexis 1118 (N.D.N.Y. 2001) (denying motion to dismiss because the record "does not make clear what evidence was relied on in the prosecution of Plaintiff or how that evidence was obtained").
CONCLUSION
For the reasons discussed above, the government's motion to dismiss is granted as to the malicious prosecution claim, and denied without prejudice as to the false arrest claim. Further, if what I will characterize as the Covington problem can be addressed on papers it should be accomplished by or before November 26, 2001. The parties should work out a schedule to their liking such that the briefs from both sides, assuming any opposition, reach Chambers on or before the above mentioned date.
SO ORDERED