Aisenberg v. Hillsborough County Sheriff's Office

• Decision Date: 16 July 2004
• Docket Number: No. 8:03-cv-2063-T-23EAJ.,8:03-cv-2063-T-23EAJ.
• Citation: 325 F.Supp.2d 1366
• Parties: Steven AISENBERG et al., Plaintiffs, v. HILLSBOROUGH COUNTY SHERIFF'S OFFICE et al., Defendants.
• Court: U.S. District Court — Middle District of Florida

325 F.Supp.2d 1366

Steven AISENBERG et al., Plaintiffs, v. HILLSBOROUGH COUNTY SHERIFF'S OFFICE et al., Defendants.

No. 8:03-cv-2063-T-23EAJ.

United States District Court, M.D. Florida, Tampa Division.

July 16, 2004.

Barry A. Cohen, Todd Foster, Michael A. Gold, Stephen L. Romine, Harry M. Cohen, Kevin J. Darken, Cohen, Jayson & Foster, Tampa, FL, Stephen Yagman, Marion R. Yagman, Yagman & Yagman & Reichmann, Venice Beach, CA, for plaintiffs.

J. Robert Sher, Washington, D.C. for defendants.

ORDER

MERRYDAY, District Judge.

The Aisenbergs sue Assistant United States Attorneys Stephen Kunz and Rachelle DesVaux Bedke; the Hillsborough County Sheriff's Office (the "HCSO"); Sheriff Cal Henderson; Major Gary Terry; Lieutenant Greg Brown; Sergeant Robert Bullara; HCSO detectives Linda Burton and William Blake; Corporal Don Roman; detective and polygrapher Carlos Somellan; Deputies Jussara Olmeda, Chad Chronister, Phillippe Dubord, Miguel Diaz, Fernando Enriquez, Alfred Ford, Lester Orgeron, Michael Bryant and Billy Williams; and the United States' audio "expert", Anthony Pellicano. The Aisenbergs assert claims that purportedly arise from the investigation and aborted criminal prosecution of the Aisenbergs following the disappearance of their infant daughter, Sabrina.

The Aisenbergs sue Kunz and Bedke in their individual capacity for "acts ... within the course and scope of ... [their] authority and the course of ... [their] employment" and assert four claims.¹ The Aisenbergs assert two claims under the United States Constitution pursuant to Bivens v. Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). The Aisenbergs assert a violation of the Fourth Amendment's prohibition against unreasonable search and seizure and allege material misrepresentations in an application to surreptitiously intercept the Aisenbergs' oral communications. The Aisenbergs assert another violation of Fourth and Fifth Amendment rights arising from an unreasonable seizure caused by, and criminal charges based on, fabricated evidence. The Aisenbergs also assert a claim pursuant to Section 1983 of Title 42, United States Code ("Section 1983"), for the alleged participation of Kunz and Bedke in a conspiracy with individuals acting under color of state law to violate the Fourth and Fifth Amendments by filing "criminal charges based on false or ... fabricated evidence." Finally, the Aisenbergs assert a state law claim for intentional infliction of severe emotional distress (Doc. 2). The Aisenbergs also sue Peilicano (1) pursuant to Bivens for violation of the Fourth and Fifth Amendments for fabrication of evidence; (2) pursuant to Section 1983 for allegedly participating in a conspiracy with individuals acting under color of state law to violate the Fourth and Fifth Amendment by filing "criminal charges based on false or ... fabricated evidence;" and (3) pursuant to state law for intentional infliction of severe emotional distress.

Kunz, Bedke, and the United States, which substituted for Kunz and Bedke as defendant for the Aisenbergs' state law tort claim (Doc. 4), removed this action, originally filed in state court (Doc. 1). Each defendant moves to dismiss the Aisenbergs' claims (Docs. 5, 7, 18, 20-32, 35, 54-57, 95, & 114) and each defendant except for Kunz, Bedke, the United States, and Pellicano moves to remand the action (Docs. 61, 62, & 105).

I. BACKGROUND

A. The initial investigation

According to the complaint, following the disappearance of their infant daughter Sabrina, on the morning of November 24, 1997, the Aisenbergs called "911" emergency services.² Authorities responded and searched for the infant. Members of the HCSO, the Federal Bureau of Investigation (the "FBI"), and the Florida Department of Law Enforcement formed the "Sabrina Task Force" to investigate the infant's disappearance. The HCSO led the investigation, Terry commanded the task force, Burton and Blake participated as "co-lead detectives," and Kunz and Bedke "advised and helped direct" the task force and attended task force meetings. Almost immediately the authorities suspected the Aisenbergs' involvement in Sabrina's disappearance and, according to the complaint, Kunz and Bedke "assisted investigators in developing potential leads in an effort to implicate the Aisenbergs in their daughter's disappearance."³

To surreptitiously install listening devices in the Aisenbergs' home, Blake and Burton submitted in state court on December 12, 1997, an "Application for the Interception of Oral Communications." The Aisenbergs allege "upon information and belief" both that "the decision to apply for the Original Application was made after consultation with ... Kunz and Bedke" and that "Kunz and Bedke offered legal advice on the propriety and drafting of the Application for Interception of Certain Oral Communications."⁴ Following approval of the application, the authorities furtively installed listening devices in the Aisenbergs' bedroom and kitchen. The devices generated poor quality and often inaudible recordings that featured excessive background noise and other audio interference.

On approximately January 9 and February 11, 1998, Burton and Blake applied for and received extensions of the intercept application from the state court, which intercepts terminated in the spring of 1998.⁵ The intercept extension applications included transcripts and summaries, both of which purported to recount intercepted and incriminating communications. According to the complaint, the applications, transcripts, and summaries contained intentional or reckless misrepresentations and other false information to deceive the reviewing tribunal. Although Diaz, Olmeda, Enriquez, Dubord, Orgeron, and Chronister prepared the initial drafts, Burton and Blake were "ultimately responsible" for drafting and completing the transcripts of intercepted communications used as exhibits for the first and second intercept extension applications. Further, the HCSO officers that monitored the intercepts, which included Enriquez, Diaz, Dubord, Ford, and Chronister, prepared the summaries with input from Burton and Blake.⁶ The Aisenbergs allege "upon information and belief" that "Kunz and Bedke had knowledge of the[ ] intentional misrepresentations [in the first and second extension applications] and promoted these falsehoods in their effort to falsely inculpate the ... [Aisenbergs] and manufacture a criminal case against them."

Beginning in December, 1997, the defendants delivered the recordings to the FBI's Washington, D.C., laboratory for audibility improvement. From December 29, 1997, to June 6, 1999, the defendants delivered over 50 audiotapes to the FBI laboratory, including audiotapes containing the purported conversations recounted in the intercept extension applications. "Simultaneous" with the FBI laboratory's audiotape analysis, beginning in December, 1997, the defendants learned of both the "poor quality" and audibility problems and the "inability to improve [the] sound quality" of the recordings. Further, in attempts to delay notice of surreptitious recording, on both February 24 and May 26, 1999, Kunz informed a court that the quality of many of the audiotapes required submission to an audio laboratory for clarification.

In December, 1997, Kunz, Bedke, and other defendants notified the press of the possible involvement in Sabrina's disappearance of a white van, although investigators had already eliminated its relevance. According to the complaint, the defendants knew that the Aisenbergs owned a white van and that disclosure of a white van's possible involvement would cast the public's suspicion on the Aisenbergs.

In January, 1998, Bullara informed the Florida Department of Health and Rehabilitative Services ("HRS") that a November 23, 1997, videotape of Sabrina made by the Aisenbergs⁷ indicated potential abuse.⁸ The following month, HRS investigators met with the Aisenbergs and Sabrina's siblings, William and Monica. HRS eventually concluded that no reason existed to remove the Aisenberg children from their parents' custody and closed the investigation in October, 1998. The Aisenbergs allege "upon information and belief" that Kunz and Bedke "were involved" in the decision to contact HRS "to use HRS to intimidate the Aisenbergs and influence their conduct," discussed the HRS investigation with the HCSO and HRS, and requested HRS investigation reports.

B. The Grand Jury Proceedings

The authorities convened a grand jury, which, according to the complaint, Kunz and Bedke used as an "investigative tool" from approximately December 1, 1997, to "at least" March, 1998, during which period the government lacked probable cause to arrest the Aisenbergs. Grand jury subpoenas issued beginning on December 1, 1997. According to the complaint, Kunz and Bedke conspired with Burton to solicit materially false and misleading testimony, to distort the truth, to deceive grand jurors, to "recklessly and corruptly" influence the investigation of Sabrina's disappearance, and to "frame" the Aisenbergs.

Specifically, on February 4, 1998, Kunz questioned Burton in the grand jury proceedings. Burton "detailed" the intercepted conversations recounted in the first intercept extension application, although Kunz knew about both the application's untruthfulness and the inaudibility of intercepted recordings. Burton also testified that doctors who viewed the November 23rd videotape (1) thought that Sabrina "appeared" to have a bruise beneath her left eye, a bruise on her face, a "marked" area under her lip, and a bruise on her arm and (2) "believed" that Sabrina displayed a "linear cut on the head where the hair had been pulled out." However, Kunz knew the doctors never opined that the video evidenced any abuse. Further, Burton testified that, according to Sabrina's hairdresser, Sabrina's hair "looked like it had been rubbed off and hair had been pulled down over it...