Simone v. United States
| Decision Date | 09 October 2012 |
| Docket Number | 09-CV-3904 (TCP)(AKT) |
| Court | U.S. District Court — Eastern District of New York |
| Parties | PHILIP SIMONE and GERTRUDE SIMONE, Plaintiffs, v. UNITED STATES OF AMERICA, Defendant. |
MENDED MEMORANDUM & ORDER
Before the Court are Defendant's jointly-filed and briefed Motions to Dismiss1 and for Summary Judgment (ECF No. 43) and Plaintiffs' cross-Motion for Summary Judgment (ECF No. 47). For the reasons stated below, the Court: (1) DENIES Defendant's Rule 12(b)(1) Motion to Dismiss; (2) DENIES, in part, and GRANTS, in part, Defendant's Rule 12(b)(6) Motion to Dismiss; and (3) DENIES the parties' cross-Motions for Summary Judgment.
Philip Simone ("Plaintiff-Simone") and Gertrude Simone ("Mrs. Simone") (j°intly> "Plaintiffs") reside in New York. Pis.' Am. Compl. ¶¶ 1-2.2 "Defendant is the government of the United States of America acting through its departments, officers, employees, and agents, including ... the Department of Justice." Id. at 3.
"In a March 27, 2006 letter, the Attorney General of Mexico requested assistance from the FBI Americas Unit [in Washington, D.C.] in obtaining photographs of Thomas E. Grisard and Phil Anthony Simone." Pis.' 56.1 Stmt \ 1 . Mexico wanted Grisard and Phil Anthony Simone ("Suspect-Simone") on charges of child prostitution. Id. The FBI Americas Unit contacted the FBI's Newark office to ask for help in obtaining photographs of the suspects. Id. at ¶ 2. The FBI's Newark office assigned Special Agent Avgoustis Karaminas, of the FBI's Newark office, to the task. Id. at ¶ 3.
Karaminas "found eleven Simones in the New Jersey DMV database—ten with the first name 'Philip' and one 'Phil,' like the one sought by Mexico." Id. at ¶ 6; see also the Letter ("in order to obtain photographs of . . . Phil Anthony Simone . . . ."). During his deposition, Karaminas was asked if he understood his duties if he found multiple persons with the samename; he responded that his "job was not to identity the target, [but to] provide [] a picture." Karaminas Dep. 66:6-15, Pis.' 56.1 Stmt, Ex. 9.
When Karaminas entered the Social Security Number provided by the Mexican authorities, he found that the number did not belong to any of the Simones found in the New Jersey database; instead, the number belonged to Gertrude Simone, wife of Plaintiff-Simone, who lived in New York. Pis.' 56.1 Stmt. ¶ 7 . Karaminas did not check the New Jersey Department of Corrections website for Suspect-Simone; this website contained a picture of Suspect-Simone. Pis.' Am. Compl. ¶ 11. Karaminas obtained the home address and birth date for Gertrude Simone's husband, Philip A. Simone. Pis.' 56.1 Stmt. ¶ 7. He reported Plaintiff-Simone's picture to the FBI's America Unit. Id. at ¶ 10.
When Karaminas reported his findings to the FBI's Americas Unit, he reported a different name (Philip A. Simone) than the name provided to him (Phil Anthony Simone); Karaminas did not repeat back the Social Security Number that he was given originally because "there was a different Social Security Number attached to this particular Simone." Pis.' 56.1 Stmt f 10. Karaminas did not tell the FBI Americas Unit that the Social Security Number that was provided to him (by the FBI's America Unit via the Letter) did not belong to a Suspect-Simone (nor, indeed, to any Phil Simone). See Karaminas Dep. 36:10-14.
Because the Simone that Karaminas reported held "a New York State motor vehicle operator's license a photograph was unable to be obtained by [the FBI's] Newark [office]." Pis.' 56.1 Stmt. ¶ 10 . In the Memo, Karaminas repeated the exact name and Social Security Numberprovided to him for Grisard. See id.3 and Karaminas Memo. Karaminas repeated neither as to Simone. See id. and Karaminas Memo.
After receiving this information, the FBI Americas Unit "contacted the FBI's Albany, New York office to obtain a DMV photograph of the Simone identified by Karaminas." Id. at ¶ 11 . FBI Special Agent Andrew Vickery, of the Albany office, transmitted a New York DMV photo of Plaintiff-Simone to the FBI's Americas Unit. Id. at ¶ 12 . On August 24, 2006, Butsch sent Plaintiff-Simone's DMV photograph to the Mexican Attorney General's Office. Id. at ¶ 13 . In this letter, Butsch told the Mexican Attorney General's Office that the photograph was of "Phil Anthony Simone"—the name the Mexican government had requested originally—not Philip A. Simone, Plaintiff-Simone's name. Id.
On May 25, 2007, Mexican authorities sent a diplomatic note to then-United States Secretary of State Condoleezza Rice; the note requested that the United States arrest and extradite, pursuant to the US and Mexican Extradition Treaty of 1978 ("the Treaty"), Grisard and "Phil Anthony Simone." Pis.' 56.1 Stmt. ¶¶ 14-15 . Included in Mexico's request was a photograph of Plaintiff-Simone, his birth date, aswell as his New Hyde Park address. Id. at ¶ 14. The Treaty's Article 10 states that "the request for extradition shall contain the description of the offense for which extradition is requested and shall be accompanied by: ... (e) The Facts and personal information of the person sought which will permit his identification .. . ." Id. at ¶ 15 (quoting 31 U.S.T. 5059). The Treaty's Article 12 states that "[i]f the Executive authority of the requested Party considers that the evidence furnished in support of the [extradition] request... is not sufficient [to] fulfill the requirements of this Treaty, that Party shall request the presentation of the necessary additional evidence." Id.
The DOJ's Office of International Affairs (OIA) assigned Mari Aponte to handle Mexico's extradition request for Grisard and Simone; after OIA reassigned Aponte, it assigned Andrea Tisi to the matter. Pis.' 56.1 Stmt. ¶ 19 (citing Tisi Dep. 24:25-25:11, June 22, 2011). Tisi testified that the Aponte reviewed the extradition request "for sufficiency under the treaty and U.S. law and [Aponte] determined that she needed more information from Mexico ...." Tisi Dep. 27:16-24. On February 29, 2008, Tisi emailed Aponte: Pis.' 56.1 Stmt., Ex. 26.
In another Diplomatic Note, dated April 22, 2008, the Mexican Embassy stated that the victim "fully recognized and identified both of the accused as the people who committed the crimes . . . through photographs appearing in copies of the following documents: passport number 155378776, issued to Phil Anthony Simone ...." Note at 3.
"Tisi did not[:] try to get a copy of [Plaintiff-] Simone's passport[,] she made no inquiries to determine whether Plaintiff-Simone was in Mexico in 2002[,] she took no steps to obtain Passport number 155378776[,] she did not determine whether Plaintiff-Simone had been issued Passport number 155378776, or ask anyone else to make that determination[,] she did not check or ask anyone to check whether anyone named Phil Simone had traveled to Mexico in 2002[,] she made no inquiries about the whereabouts of Plaintiff-Simone in 2002 nor did she ask anyone to make such inquiries [,] she did not compare the photo sent with the diplomatic note with the DMV photo or ask anyone to do that[,] she did not interview the codefendant Thomas Grisard, who was already in custody, nor did she ask anyone to do that."
Pis.' 56.1 Stmt. ¶ 22 (citing Tisi Dep. 53, 56, 59-61).
On April 14, 2008, Tisi sent a draft complaint to the U.S. Attorney's Office in the Eastern District of New York. Id. at ¶ 20 (). As to this draft complaint, Assistant U.S. Attorney, Raymond Tierney, asked Tisi if she had a copy of Plaintiff-Simone's passport; Tisi said no. Id. at ¶ 23 (citing Tisi's Notebook/Call Log, id. at Ex. 32). On May 2, 2008, AUSA Richard Lunger—reassigned to the matter—filed a "Complaint and Affidavit in Support of Application for Arrest Warrant." Id. at ¶ 25 (citing id. at Ex. 33). The filing stated that the marshals "positively identified the defendant from a DMV photo that was compared to a photograph of the defendant provided by Mexican authorities." Complaint and Affidavit ¶ 4. Magistrate Judge Lindsay, Lunger's sworn affidavit, issued the arrest warrant on May 2, 2008. U.S. Marshals first executed the warrant at Plaintiffs' New Hyde Park, New York home and upon, interviewing Mrs. Simone, sent marshals to Plaintiff-Simone's place of work in New Jersey. See Def.'s 56.1 Stmt., Ex. O ¶¶ 10-12; see also Tisi Email to Mexican Government, Pis.' 56.1 Stmt, Ex. 34.
After interviewing Mrs. Simone, who stated that Plaintiff-Simone had not been to Mexico, Tisi contacted Mexican officials to ensure Plaintiff-Simone was the suspect Mexicosought. See Def.'s 56.1 Stmt, ¶¶ 33-36. After reviewing the picture used by the victims to identify Suspect-Simone, Tisi realized that the person in that photograph did not match Plaintiff-Simone. Id. at ¶ 36. "We're fearful we have the wrong person arrested." Tisi Email to Mexican Government, Pis.' 56.1 Stmt., Ex. 36. Upon further review, AUSA Robert Kirsch (of the District of New Jersey) notified "Tisi that the Marshals had identified a registered sex offender named Phil Simone in Florida." Def.'s 56.1 Stmt, ¶ 37. Kirsch noted that Plaintiff-Simone's birthday did not match the birthday provided by Mexico in the diplomatic note. Pis.' 56.1 Stmt. ¶ 30 (). The Marshal's office "found another ...
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