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Ninth Circuit:
U.S. Is Immune From Liability for Alleged Games-Playing
Opinion Says Prosecutors Acted Within Discretion in Filing New Charges, Which They Later Dismissed, Against ISIS-Tied Hacker After He Secured Compassionate Release, Even Though Judge Called Actions ‘Troubling’
By a MetNews Staff Writer
The Ninth U.S. Circuit Court of Appeals held Friday that a complaint filed under the Federal Tort Claims Act against the U.S., asserting malicious prosecution and other claims, by a convict who says that federal prosecutors acted vindictively by filing new charges against him based on misleading information after he successfully obtained a compassionate release, is barred by discretionary immunity.
At issue is the exception to liability, found at 28 U.S.C. §2680(a), which exempts “[a]ny claim…based upon the exercise or performance or 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.”
Arguing that the exception does not apply was Ardit Ferizi, who asserts that the government obtained a search warrant that revealed evidence against him on the new charges based on an affidavit that omitted facts tending to undermine the credibility of a prison informant who relayed incriminating information against him to federal authorities.
He cited the 1978 U.S. Supreme Court case of Franks v. Delaware and its progeny which established that a defendant may challenge a sworn statement accompanying a search warrant on Fourth Amendment grounds upon making a substantial preliminary showing of a false statement or material omission necessary to a finding of probable cause.
Ferizi argued that because FBI Special Agent Dustin Reid omitted information that the informant had been convicted of a crime of dishonesty and certain other details about the investigation, the decision to prosecute him falls outside the exception, citing case law providing that federal officers do not possess discretion to violate the Constitution or lie under oath.
In a memorandum opinion, signed by Circuit Judges Daniel P. Collins, Lawrence VanDyke, and Salvador Mendoza Jr., the jurists said that they need not decide if such a Fourth Amendment breach under Franks would be sufficient to defeat the exception because he failed to meet his burden to show a constitutional violation.
Support to Terrorists
In 2016, Ferizi was convicted of providing material support to a foreign terrorist group for his actions in hacking into online records of a private company and turning over to an ISIS member the contact information for customers whose email addresses indicated that they worked for the U.S. government.
He was sentenced to 20 years in prison by District Court Judge Leonie M. Brinkema of the Eastern District of Virginia, who later granted his petition for compassionate release, in December 2020, due to asthma and other conditions that he asserted made him more susceptible to severe illness from COVID-19. Brinkema reduced his sentence to time served and ordered that he be released into the custody of immigration authorities.
According to Ferizi, federal prosecutors with the U.S. Attorney’s Office for the Northern District of California responded to the order by filing a complaint against him, in January 2021, on charges that he provided his Google login credentials to his brother and asked him to download data from the account for the purposes of committing fraud.
He filed a motion to suppress evidence in the new criminal case based on Franks, but the U.S. Attorney’s Office requested to dismiss the matter in March 2022 before the hearing date.
Meanwhile, the Fourth Circuit Court of Appeals ordered Brinkema to consider how the new charges affect the analysis for compassionate release. Brinkema again ordered the defendant to be set free from prison and handed over to immigration authorities.
In an April 2022 order, she called the government’s actions “troubling” and wrote:
“[T]he court finds that there were elements within the Department of Justice who were so dissatisfied with this Court’s decision to release defendant…that they purposely tried to evade [this] decision[] by filing very weak new charges…all of which have since been summarily dismissed.”
Ferizi filed the civil complaint in May 2023, alleging:
“Having never mentioned any allegation of criminal activity by Mr. FERIZI…as it was contesting his compassionate release motion, and having been denied a stay of the compassionate release order by both Judge Brinkema and the Fourth Circuit Court of Appeals, the Government instead decided to file a criminal complaint on the other side of the country to evade Judge Brinkema’s mandate and ensure Mr. FERIZI would not be released from jail.
“There is only one word to describe the Government’s actions in this case: vindictive. This prosecution sought to punish Mr. FERIZI for successfully filing for compassionate release and succeeded. By filing the complaint on the other side of the country…and burying him under a mountain of discovery, the Government was able to keep Mr. FERIZI in custody during the eleven months the Fourth Circuit took to deny on the Government’s appeal of Mr. FERIZI’s compassionate release request.”
In September of 2023, Senior District Court Judge William Alsup of the Northern District of California dismissed the complaint with prejudice, and final judgment was entered in favor of the government.
Ninth Circuit’s View
Collins, VanDyke, and Mendoza noted:
“Ferizi does not contest that his tort claims are all ultimately based on the decision to file charges against him and that such charging decisions are typically discretionary functions….But he argues that, because the investigating agent submitted a false and misleading search warrant affidavit in violation of Franks v. Delaware,…the decision to prosecute him in this case falls outside the discretionary function exception.”
They added:
“The parties vigorously dispute whether, under the applicable test governing the discretionary function exception, the alleged Franks violation here, if established, would be sufficient to defeat that exception. We need not resolve these issues, because we conclude that Ferizi has failed to allege a predicate Franks violation.”
The judges pointed out that a party challenging a warrant under Franks must show that the affiant acted deliberately or recklessly in making false statements or omissions that were material to the finding of probable cause. Where “the contention is that facts were improperly omitted,” they said that no constitutional violation will be found if probable cause remains after correcting and supplementing to include the information left out in the original filing.
Applying this standard, they said:
“Ferizi contends that the investigating agent improperly omitted information detracting from the credibility of a key witness, who was another inmate at the prison where Ferizi was then being held after a conviction on previous charges. Specifically, the agent omitted (1) the additional detail that the inmate was serving a sentence for fraud, a crime involving dishonesty; and (2) certain additional details undermining the inmate’s allegation that a Bureau of Prisons (‘BOP’) employee had given Ferizi a cellphone.”
Affidavit Disclosures
Pointing out that the affidavit did disclose that the informant was serving “a more-than-20-year sentence” and that “the BOP had investigated the inmate’s cellphone claim and had found no evidence to support it,” they opined:
“Construing the affidavit as a whole, we conclude that, even with the marginal addition of the further impeaching information that Ferizi cites, the affidavit still establishes probable cause. Because ‘probable cause remains after amendment,…no constitutional error has occurred.’ ”
The jurists added:
“Given that Ferizi’s arguments for defeating the discretionary function exception rest on his predicate assertion of a Franks violation, that exception applies and bars his tort claims. And because Ferizi’s proffered amendments would not address his underlying failure to plead a Franks violation, leave to amend would be futile…We therefore affirm the dismissal of this action with prejudice.”
Ferizi v. U.S., 23-16195.
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