Koubriti v. Convertino

• Decision Date: 03 February 2010
• Docket Number: No. 09-1016.,09-1016.
• Citation: 593 F.3d 459
• Parties: Karim KOUBRITI, Plaintiff-Appellee, v. Richard CONVERTINO, Defendant-Appellant, Michael Thomas, Defendant.
• Court: U.S. Court of Appeals — Sixth Circuit

593 F.3d 459

Karim KOUBRITI, Plaintiff-Appellee, v. Richard CONVERTINO, Defendant-Appellant, Michael Thomas, Defendant.

No. 09-1016.

United States Court of Appeals, Sixth Circuit.

Argued: October 14, 2009.

Decided and Filed: February 3, 2010.

ARGUED: Robert S. Mullen, Robert S. Mullen and Associates, PLLC, Plymouth, Michigan, for Appellant. Ben M. Gonek, Law Office, Detroit, Michigan, for Appellee. ON BRIEF: Robert S. Mullen, Robert Mullen and Associates, PLLC, Plymouth, Michigan, for Appellant. Ben M. Gonek, Law Office, Detroit, Michigan, for Appellee.

Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.^*

OPINION

KENNEDY, Circuit Judge.

Defendant-Appellant Richard Convertino appeals the district court's partial denial of his motion to dismiss for failure to state a claim in this civil action filed against him by Plaintiff-Appellee Karim Koubriti. Koubriti seeks monetary damages from Convertino, pursuant to Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), for constitutional violations that Convertino allegedly committed while serving as the Assistant United States Attorney who prosecuted Koubriti for conspiracy to provide material support or resources to terrorists in violation of 18 U.S.C. §§ 371 and 2339A, and conspiracy to engage in fraud or misuse of visas, permits, or other immigration documents in violation of 18 U.S.C. §§ 371 and 1546(a). Because 1) Plaintiff has pointed to no harm to himself from the investigation Convertino conducted except the non-disclosure of certain exculpatory evidence at trial, and 2) Convertino is shielded by prosecutorial immunity for such non-disclosures of exculpatory evidence, we REVERSE the decision of the district court denying in part Convertino's motion to dismiss and AFFIRM its decision to the extent that it granted Convertino's motion in part.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2001, in response to the September 11, 2001, terrorist attacks, a team of federal agents went to a house at 2653 Norman Street in Detroit in an attempt to interview one Nabil Al-Marabh, an individual on the FBI's "watch list" of suspected terrorists.¹ Upon entering the house, the agents found Plaintiff Karim Koubriti, Ahmed Hannan, and Farouk Ali-Haimoud. A subsequent search of the house turned up false identity documents for each occupant, as well as "over 100 audio tapes featuring fundamentalist Islamic teachings, a videotape depicting a number of American tourist landmarks, and a day planner bearing suspicious drawings labeled `The American Base in Turkey under the Leadership of Defense Minister,' and `Queen Alia, Jordan.'"² United States v. Koubriti, 199 F.Supp.2d 656, 659 (E.D.Mich.2002). All three men were arrested, and each was charged the next day with possession of false identification and/or immigration documents in violation of 18 U.S.C. §§ 1028(a)(4), 1546, and 371.³ Responsibility for prosecution of the case was assigned to Defendant Richard Convertino, then an Assistant United States Attorney for the Eastern District of Michigan. Convertino, along with FBI Agent Michael Thomas and others, began investigating the men for any ties to terrorist organizations or activities. Convertino eventually developed a theory that the men—along with Abdel Ilah El Mardoudi—were a "cell" or "sleeper cell" of an Islamic terrorist organization aiming to assist a transnational network of radical Islamists influenced by the Salafiyya religious movement. Based on his theory, Convertino caused the filing of a second⁴ and then third⁵ superseding indictment against Koubriti and the others which added to the existing charges a count of conspiracy to provide material support or resources to terrorists in violation of 18 U.S.C. §§ 371 and 2339A.

At Koubriti's criminal trial, the government relied on three different types of evidence to establish its terrorism case: 1) expert testimony that the day planner sketches and videotape seized from the Norman house constituted terrorist "casing"⁶ material; 2) the testimony of Koubriti's former housemate, Yousseff Hmimssa, that the defendants indeed had terrorist leanings and intentions; and 3) corroborating evidence that the defendants had committed acts consistent with terrorist activities, such as committing document and credit fraud, attempting to obtain commercial truck licenses for transporting hazardous materials, possessing audio tapes of fundamentalist speakers, and making international wire transfers. On June 3, 2003, after a trial spanning three months, a jury convicted Koubriti of Count I (conspiracy to provide material support or resources to terrorists) and Count II (conspiracy to engage in fraud and misuse of visas, permits, and other documents).⁷

On October 15, 2003, Koubriti and the other defendants filed a Motion for New Trial on the grounds that the government suppressed material evidence contrary to Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Motion for New Trial, United States v. Koubriti, Case No. 01-80778 (E.D.Mich. Oct. 15, 2003). On December 12, 2003, the trial court held a hearing regarding the claim and found that two previously undisclosed documents in the possession of the government constituted material evidence that should have been disclosed to the defense. Accordingly, the court ordered the government to conduct a full and independent review of its case files to determine if there were other documents that should have been disclosed pursuant either to Brady or Giglio v. United States, 405 U.S. 150, 92 S.Ct. 763, 31 L.Ed.2d 104 (1972). On June 29 and August 30, 2004, the government disclosed numerous additional documents that had not previously been submitted or shown to Koubriti and the other defendants.

On August 31, 2004, the government filed a further response to Koubriti's motion which concurred in the request for a new trial and asked the court to dismiss the terrorism count without prejudice. In its brief to the court, the government provided a detailed description of several instances where it had failed to disclose relevant, exculpatory, or otherwise discoverable material. With respect to the alleged casing materials, the government acknowledged several material non-disclosures including: 1) photographs of the Queen Alia hospital that had been taken by a government agent investigating in Jordan; 2) statements disclosing that there was not a consensus among government officials that any of the sketches represented the hospital; 3) that some government experts believed that the videotape was not casing material; 4) that there was no consensus that any of the sketches represented a hardened air shelter at the Incirlik Air Base; and 5) that some agents actually believed that the drawings merely represented a map of the Middle East. The government also acknowledged that Convertino had traveled to Jordan with Agent Thomas in late February 2002 to visit the sites allegedly depicted by the day planner sketches. With respect to Yousseff Hmimssa's testimony, the government again acknowledged several material non-disclosures, including: 1) a letter from a prison inmate indicating that Hmimssa had bragged to him while they were both incarcerated that he had fooled the FBI and the Secret Service; 2) other documentation indicating that, contrary to his testimony, Hmimssa harbored deep-seated anti-American views; and 3) that Convertino and other officials interviewed Hmimssa more than ten times prior to trial and that Convertino "made a deliberate decision not to have the FBI take any notes or prepare any memoranda of these sessions in order to limit defense counsel's ability to cross-examine Hmimssa." Finally, with regard to the government's corroborating evidence, the government again acknowledged that it had failed to disclose certain material evidence.

The trial court in Koubriti's criminal trial dismissed the defendants' terrorism charge without prejudice and granted a new trial as to the fraud count. United States v. Koubriti, 336 F.Supp.2d 676 (E.D.Mich.2004). Koubriti was released on bond on October 12, 2004 and is now under the supervision of Pretrial Services. The government has since filed a new indictment against Koubriti, charging him solely with conspiracy to commit mail fraud in violation of 18 U.S.C. § 371.

Following the dismissal, Convertino was indicted on charges of conspiracy to obstruct justice and make false declarations in violation of 18 U.S.C. § 371, obstruction of justice in violation of 18 U.S.C. §§ 2 and 1503, making a materially false declaration before a court in violation of 18 U.S.C. §§ 2 and 1623, and obstruction of justice in violation of 18 U.S.C. § 1503 based on his conduct at the trial. On October 31, 2007, Convertino was acquitted of all counts. The Michigan Attorney Grievance Commission also investigated Convertino's actions relating to the Koubriti case, but it did not bring any disciplinary charges.

On August 30, 2007, Koubriti filed the present action. In his complaint—which named Convertino, Thomas, and Ray Smith⁸ as co-defendants—Koubriti seeks relief pursuant to the Fifth Amendment and Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). Koubriti requested $9,000,000 in compensatory damages plus punitive damages arguing that:

Defendants violated his Fifth Amendment Rights by maliciously and intentionally withholding exculpatory evidence and fabricating evidence contrary to Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), prior to and during his prosecution for the offense of conspiracy to provide materials for or resources to terrorists contrary to 18 U.S.C. §§ 371 and 2339(e).

The complaint then sets out the following claims with respect to Convertino's liability:

Defendant Convertino while acting in an investigative type role withheld exculpatory evidence or...