Bansal v. Russ
| Decision Date | 05 April 2007 |
| Docket Number | Civil Action No. 06-4264. |
| Citation | 513 F.Supp.2d 264 |
| Parties | Akhil BANSAL, Plaintiff, v. Eric RUSS, et al., Defendants. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Akhil Bansal, Philadelphia, PA, pro se.
Mary Catherine Frye, United States Attorney's Office, Assistant U.S. Attorney, Philadelphia, PA, for Defendants.
This is a civil action brought by Plaintiff Akhil Bansal against fifteen individual federal employees, four federal agencies and the United States. Plaintiff seeks $750 million in compensatory and punitive damages and "administrative discipline" against individual defendants for alleged constitutional and statutory violations arising out of his criminal prosecution and conviction. See Complaint ("Cpt."). Now before the court is Defendants' Motion to Dismiss or in the Alternative Summary Judgment. For the reasons stated below, the Motion is GRANTED in part and DENIED in part.
Plaintiff was involved in "an international conspiracy — involving India, the United Kingdom, France, Norway, Canada, Ireland, Sweden, Germany, the British Virgin Islands, Belize, and Samoa — to distribute illegal prescription drugs, including Darvocet, Codeine, Ativan, Xanax, Valium, Viagra, and Ketamine." See United States v. Bansal, 2:05-cr-0193, Dkt. No. 479. On April 6, 2005, Plaintiff and sixteen co-defendants were indicted by a grand jury in the Eastern District of Pennsylvania on two counts of conspiracy to distribute controlled substances, two counts of conspiracy to import controlled substances, two counts of operating a continuing criminal enterprise, two counts of introduction of misbranded drugs into interstate commerce, aiding and abetting, one count of conspiracy to introduce misbranded drugs into interstate commerce, two counts of conspiracy to commit money laundering, ten counts of international money laundering, aiding and abetting, eight counts of transactional money laundering, aiding and abetting, seven counts of promotional money laundering, aiding and abetting, two counts of international money laundering, three counts of transactional money laundering, and three counts of promotional money laundering. See United States v. Bansal, No. 2:05-cr-0193. Thirteen of these counts were dismissed without prejudice. Id. After a five-and-a-half week jury trial, Plaintiff was convicted on all remaining thirty-one counts. Id., Dkt. No. 561. He has not yet been sentenced.
Plaintiff was represented by counsel before and during his criminal trial. See United States v. Bansal, Dkt. Nos. 33, 91, and 169. On motion of the United States, search warrants, affidavits in support thereof, and search warrant returns were unsealed and provided to Plaintiff and his co-defendants. See United States v. Bansal, Dkt. Nos. 197, 198, 204, 205, 206, 207, 208, and 209. Plaintiff thereafter filed motions to suppress evidence derived from electronic surveillance of his e-mail accounts (Dkt. No. 215), to suppress physical evidence (Dkt. No. 220), to suppress all electronic evidence derived from allegedly illegal search and seizure of stored electronic communications (Dkt.232), to dismiss indictment (Dkt.289), to suppress all physical evidence seized pursuant to allegedly warrantless search of garage (Dkt. No. 290), to dismiss indictment on grounds of alleged defects in grand jury proceeding (Dkt.291), to exclude evidence (Dkt. No. 292), and to suppress all physical evidence obtained by allegedly warrantless search of Plaintiff's vehicle (Dkt.293). He thereafter filed another motion to suppress evidence derived from electronic surveillance of e-mail accounts (Dkt.308) and another motion to suppress all electronic evidence derived from allegedly illegal search and seizure of stored electronic communications (Dkt.309). All of these motions were denied. Dkt. 242 (), Dkt. 342 (), Dkt. 348 (denying motion to suppress physical evidence, Dkt. 220), Dkt. 355 (denying motion to suppress evidence seized from stored electronic communications, Dkt. 309), Dkt. 362 (denying motion to dismiss indictment because of defects in grand jury proceeding, Dkt. 291, and motion to exclude evidence, Dkt. 292, ); Dkt. 427 (), Dkt. 433 (denying motion to suppress evidence seized from garage, Dkt. 290), and Dkt. 479 ().
On September 27, 2006, Plaintiff filed a thirty-eight count complaint alleging constitutional and statutory violations against five agents or employees of the Drug Enforcement Administration ("DEA"), two Special Agents of the Federal Bureau of Investigation ("FBI"), one Special Agent of the Internal Revenue Service ("IRS"), five Assistant United States Attorneys ("AUSAs"), the United States Attorney for the Eastern District of Pennsylvania, the Attorney General of the United States, the DEA, the FBI, the IRS, the United States Attorney's Office for the Eastern District of Pennsylvania ("USAO") and the United States of America. Cpt., ¶¶ 7-26. Plaintiff sued the DEA agents, the FBI agents, the IRS agent and the AUSAs in their individual and official capacities; he sued the United States Attorney and the Attorney General in their official capacities only. See Cpt., ¶¶ 7-19.
Defendants Cohan, Kelly, Costello, Pavlock and Witzleben (the "AUSA Defendants") were the Assistant United States Attorneys who prosecuted Plaintiff and his sixteen co-defendants. Defendant Patrick Meehan was the United States Attorney for the Eastern District of Pennsylvania during the investigation and prosecution of Plaintiff, and Defendant Alberto Gonzales was the Attorney General of the United States during at least part of the investigation of Plaintiff and during Plaintiff's trial.
Defendants Russ, Aquino, Gobin, Konieczny, Del Re, Huff, Bole and Carp ("Agent Defendants") were agents of the federal investigatory agencies, DEA, FBI and IRS, which conducted the investigation of Plaintiff's criminal enterprise.
In Count 1 of his complaint, Plaintiff alleges the AUSA Defendants violated the Right to Financial Privacy Act, 12 U.S.C. § 3401, et seq., by obtaining Plaintiff's bank and credit card records without "provid[ing] any certification of compliance required as per the act," and without "provid[ing] any notice or dela[y]ed notice" as required by the Act. Cpt., ¶ 33.
In Counts 2 through 8, Plaintiff alleges the AUSA Defendants violated the Stored Communications Act, 18 U.S.C. § 2701, et seq., and 18 U.S.C. § 2,1 by obtaining search warrants without probable cause (Cpt., ¶¶ 36, 40, 43, 46, 49, and 53), obtaining search warrants "out of jurisdiction" (Id.), asking for "opened" e-mails (Id.), providing no notice or delayed notice of the search warrants to Plaintiff (Cpt., ¶¶ 37, 40, 43, 46, 49, and 53), providing no inventory sheet to the issuing magistrate judge (Id.), and providing no "order of preservation request." Id. Further, Plaintiff alleges the AUSA Defendants violated the Stored Communications Act by obtaining the contents of Plaintiff's Temple University e-mail account without any kind of subpoena,. court order or search warrant. Cpt., ¶¶ 57.
In Counts 9 through 11 of the complaint, Plaintiff alleges the AUSA Defendants violated the Wiretap Act, 18 U.S.C. § 2510, et seq., by obtaining wiretap orders that were "not issued by the judge within the jurisdiction," that authorized seizure, rather than interception, of emails from stored communications, and that were based on "faulty" affidavits. Cpt., ¶¶ 61, and 65. In addition, Plaintiff alleges AUSA Defendants violated the Wiretap Act by not using a "device" to obtain the e-mail communications and not timely sealing the communications. Id. Finally, Plaintiff alleges AUSA Defendants violated the Wiretap Act by intercepting telephone communications between the United States and India without a court order. Cpt., ¶ 68.
In Count 12 of the complaint, Plaintiff alleges the AUSA Defendants violated the Computer Fraud Act, 18 U.S.C. § 1030(a)(2) (C), by exceeding "authorized access" to a protected computer. Cpt., ¶ 71.
In Count 13 of the complaint, Plaintiff alleges the AUSA Defendants violated the Pen Register Statute, 18 U.S.C. § 3121, et seq., by causing to be installed pen registers and trap & trace devices without a court order. Cpt., ¶ 73.
In Count 14 of the complaint, Plaintiff alleges the AUSA Defendants procured search warrants knowing that they were "maliciously drafted" and without probable cause or particularity, in violation of 18 U.S.C. § 2235.
In Count 162 of the complaint, Plaintiff claims that the AUSA Defendants' conduct alleged in Counts 1 through 13 constituted violations of. Plaintiff's rights under the Fourth Amendment. He also claims the AUSA Defendants violated Rule 41 of the Federal Rules of Criminal Procedure (Search and Seizure), but he does not specify what provision of the Rule he believes was violated. Plaintiff further alleges the AUSA Defendants violated 18 U.S.C. § 3101, et seq. (Searches and Seizures), but again he does not specify which provisions he believes were violated. Cpt., ¶ 81.
In Count 17 of the complaint, Plaintiff claims the AUSA Defendants violated his Fifth Amendment rights by presenting false and misleading information to the grand jury, providing discovery to Plaintiff in electronic format, and "maliciously put[ting] a `sep[a]ration order' between Plaintiff and his co-defendant to hamper his defense." Cpt., ¶ 85. He also claims that AUSA Pavlock violated his Fifth Amendment rights by obtaining restraining orders "without probable...
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