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To: ho4cad.att.com!kqb
Subject: CRYONICS: ecpa update
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Date: Sun, 19-Mar-89 19:48:55 PST
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From: hkhenson
Date: Sat, 18-Mar-89 04:58:42 PST
[ This message is a follow-up to messages 51 and 56, which concern the failure
of the FBI to investigate the Riverside County coroner's office for violation
of the 1986 Electronic Communications Privacy Act during the 1988 raid on
ALCOR. - KQB ]
The below is a typed-in copy of the response of William F. Murphy,
Assistant United States Attorney to my suit filed last December against
the FBI and the U.S. Attorney's office for their failure to enforce (or even
investigate) what I considered to be a violation of the ECPA. The full text
of the suit was posted in misc.legal in January and is still available by
email on request from Comments, advice,
applicable cases, etc. are most welcome. A status conference is
scheduled for March 24. The motion to dismiss is set for April 14. It
states: "Pursuant to Rules 7(b)(1) and 12(b)(6), F.R. Civ.P. defendants
hereby move to dismiss this lawsuit for failure to state a claim for which
relief can be granted. In support of this motion, defendants respectfully
fefer the attention to the Court and parties to the memorandum of Points
and Authorities submitted herewith.
Boilerplate, case # C-88-20788
H. Keith Henson, et al.,
Plantiffs,
v.
Federal Bureau of
Investigation, et al.,
Defendants.
DEFENDENTS' MEMORANDUM OF POINT AND AUTHORITIES
IN SUPPORT OF THEIR MOTION TO DISMISS
INTRODUCTION
On December 9, 1988, H. Keith Henson and others filed a suit against the
FBI, SA Ron Heller, the United States Attorney's Office, Los Angeles, CA,
and Michael Emick (Chief of Criminal Complaints of the US Attorney's
Office, Los Angeles) alleging that the FBI and the Department of Justice
(DOJ) have refused to investigate an alleged violation of federal law or
have refused to explain why the provisions of the statute alleged to be
violated do not apply. Plaintiffs request that the court enter judgment
against defendants ordering the FBI to fully investigate the circumstances
of the execution of a search warrant at 12327 Doherty Street, Riversde,
CA. In addition, the plaintiffs request that the court order the US
Attorney's office to file charges based on the results of the FBI
investigation, or provide a legal explaination as to the reasons the
provisions of the Title 18, U.S.C., Section 2701 are not applicable.
BACKGROUND
As stated in the Declaration of William F. Murphy, the facts are as
follows:
By letter dated April 5, 1988, H. Keith Henson (hearafter "Henson")
contacted the FBI office at Riverside, CA. The letter requested that the
FBI investigate the Riverside County, CA Coroner's office for violations of
Title 18, U. S. C. Section 2701 "Unlawful Access to Stored
Communications."
Henson alleged that the Riverside County Coroners's office removed a
computer, hard disk, and a modem used for electronic mail from the Alcor
Life Extension Foundation, (address) on Jan 12, 1988. Henson alleged that
this removal was illegal in that it violated Title 18, Section 2701 since
the warrant did not specify that the email was to be disclosed or
sequestered.
A search warrant was executed at (Alcor address) on Jan. 12, 1988. The
warrant was issued by a judge of the Riverside County Court and was
executed by members of the Riverside, CA police and coroner departments.
The FBI was not involved in that search or investigation.
The facts involved in the violation Henson alleged were presented to
Assistant United State Attorney (AUSA) Alka Sagar, Los Angeles, CA, by
FBI Special Agent (SA) Ron Heller on April 21, 1988. AUSA Sagar declined
prosecution in the matter by advision the proper remedy for Henson would
be to challenge the validity of the warrent in the Riverside County Court.
Further, AUSA Sagar advised that there was no showing that the officials
from the Riverside County Coroner's office had not complied with the
statute.
On April 21, 1988, SA Heller advised plantiff Henson of the United
States Attorney's prosecutive opinion.
ARGUMENT
I. THE FBI IS NOT AN ENTITY AGAINST WHICH SUIT CAN BE BROUGHT
The Plantiffs have named the FBI as a defendant in this lawsuit.
Congress has not constituted the FBI as a corporate body nor authorized it
to sue or be sued in its individual name. *Jones v. the FBI, 139 F.Supp. 38,
41 (d. Md. 1956), citing Blackman v. Guerre, 342 U.S. 512 (1952). Hence, if
the plantiffs desire to sue the FBI and not the United States Government,
the suit should be dismissed against the FBI.
II SEPARATION OF POWERS PROVIDES FOR NO JUDICIAL REVIEW OF
PROSECUTORIAL DISCRETION
Plaintiffs seek to have the U.S. District Court order the FBI and named
Assistant United States Attorneys to prosecute alleged defendants whom
plantiffs want prosecuted. Specifically, the plantiffs seek a court order
that the FBI and Assistant Unites States Attorneys institute criminal
prosecution against individuals who plantiffs believe have violated Title
18, U.S.C. 2701.
The Constitutions vest the power to initiate a criminal prosecution
exclusively in the Executive Branch. This power is encompassed within
the Executive power to "take care that the laws be faithfully executed."
The Executive has "exclusive authority and absolute discretion to decide
whether to prosecute a case." *In re Sealed Case*, 838 F.2d 476, 488 (D.C.
Cir. 1988), citing *United States v. Nixon*, 418 U.S. 683, 94 S.Ct. 3090, 41
L.Ed. 2d 1039 (1974); *United States v. Cox*, 342 F. 2d 167 (5th Cir.) (en
banc), *cert. denied*, 381 U.S. 935, 85 S.Ct. 1767, 14 L.Ed. 2d 700 (1965).
This "power to decide when to investigate, and when to prosecute lies at
the core of the Executive's duty to seek the faithful execution of the laws."
*In re Sealed Case supra*, at 488, citing *Community for Creative
Non-Violence v. Pierce*, 786 F.2d 1199, 1201 (D.C. Cir. 1986).
Case law is clear that the Executive Branch has authority to supervise
the investigative stages of law enforcement conduct without
interferance from the judicial branch. *United States v. Leja*, 563 F.2d
244 (6th Cir. 1977), *cert. denied*, 434 U.S. 174, (1978); *United States v.
Wallace*, 578 F.2d 735 (5th Cir.) *cert. denied, sun nom., Mitchell v.
United States*, 439 U.S. 898 (1978).
In *Moss v. Kennedy*, 219 F.Supp. 762 (D.D.C. 1963), *aff'd. sub. nom.
Moses v. Katzenbach*, 342 F.2d 931 (D.C. Cir. 1965) plantiffs sought an
order directing the FBI as well as other defendants to arrest, imprison,
and institute criminal prosecution against those persons responsible for
deprivations of plantiffs' rights. In refusing to grant the relief sought, the
court held that the actions plaintiffs sought were "clearly discretionary,
and decisions respecting such actions were committed to the Executive
Branch of the government, not to the courts." Id. at 764.
In explaining the reasons for limitations upon judicial power in this
area, the District Court noted:
Article II, Section 3 of the Constitution provides
that "(The President" shall take care that the laws (shall)
be faithfully executed." The prerogative of enforcing the
criminal law was vested by the Constitution, therefore,
not in the courts nor in private citizens, but squarely in
the executive arm of the goverment. Congress has
implemented tha power of the President by conferring the
power and the duty to institute prosecution for Federal
offenses upon the United States Attorney for each district.
28 U.S.C.A. Section 507. In exercising his power, the
United States Attorney acts in an administrative capacity
as the representive of the public.
It by no means follows, however, that the duty to
prosecute follows automatically from the presentattions of
complaint. The United States Attorney is not a rubber stamp.
His problems are not solved by the strict application of an
inflexible formula. Rather, their solution calls for the
exercise of judgment.
There are a number of elements in the equations, and all
of them must be carefully considered. Paramount among
them is a determination that a prosecution will promote
the ends of justice, instill respect for the law, and advance
the cause of ordered liberty.
Other considerations are the likelihood of conviction,
turning on the choice of a strong case to test the uncertain
law, the degree of criminality, the weight of the
evidence, the credibility of witnesses, precedent, policy,
the climate of public opinion, timing, and the relative
gravity of the offense. In weighing these factors, the
prosecution must apply responsible standards, based not
on loose asumptions but on solid evidence balancing in a
scale demanding proof beyond a reasonable doubt to
overcome the presumption of innocence. *Plugh v.
Klein*. 193 F.Supp. 630, 634-5 (D.D.C 1961)
*Moses v. Kenedy*, 219 F. Supp. at 764-765.
The law is clear that the executive branch has broad discretion to decide
whom to prosecute. *Wayte v. United States*, 470 U.S. 598 (1985);
*United States v. Lee, 786 F.2d 951 (9th Cir. 1986). As a general
proposition, Federal courts do not involve themselves in a prosecuting
attorney's decision to prosecute, and a particular prosecution cannot be
compelled. *Nathan V. Smith*, 737 F.2d 1069 (D.C. Cir. 1984); *Littleton v.
Berbling, 468 F.2d 389 (7th Cir. 1972); *Peek v. Mitchell*, 419 F.2d 575
(6th Cir. 1970); *Fleetwood v. Thompson*, 358 F.Supp. 310 (N.D. Ill. 1972);
*Massey v. Smith*, 555 F.2d 1355 (8th Cir. 1977).
CONCLUSION
This court is without authority to enter a Declaratory Judgement
compelling the FBI to investigate and ordering Assistant United States
Attorneys, Central District of California to prosecute. Consequently,
plantiffs' Complaint fails to state a claim for which relief can be granted.
Dated: March 14, 1989
Signatures, etc.
(spelling errors above are most likely mine, case numbers were checked--
the section below was knocked out without the aid of a spell checker or
editor, please excuse HKH)
My reply arguments:
Advice by Alka Sagar that "proper remedy for Henson would be to
challenge the validity of the warrent in the Riverside County Court" was
invalid. Henson was not mentioned in the warrant, and in fact, this is the
root of plaintiffs' objections. Legal advise is that, while they could sue
Alcor for failing to protect the privacy of their email, plaintiffs have no
standing under the law to attack the validity of the warrant. (Note, I could
use help on this point)
Alka Sagar's advising "that there was no showing that the officials from
the Riverside County Coroner's office had not complied with the statute."
was, from her viewpoint, true. There was also no showing that the
officials *had* complied with the statute. In a conversation with Henson,
she acknowledged that she had no written report from the FBI, knew
nothing about the statute, and was almost unable to remember that she had
had a conversation with SA Heller on the Monday following the date of her
"decision."
Argument 1
If the FBI cannot be sued, who was the target of the class action suit
that 308 Hispanic FBI officers filed against the FBI? (cited in the
California Magazine's Oct. 1988 article, "The Gang That Couldn't Smoke,
Drink, or Shoot Straight" (subtitled--How the Morman Mafia turned the
FBI's L.A. office into the laughingstock of law enforcement.) Need to get a
ref number on this case!
Argument 2
The characterization of the plaintiffs prayer in paragraph 1 of Argument
II is exaggerated. Plantiffs are not seeking a court order "that the FBI and
Assistant United States Attorneys institute criminal prosecution against
individuals whom plaintiffs believe have violated Title 28, U.S.C., 2701."
Plaintiffs argue that the FBI shirked its duty to investigate, that no
investigation of the plaintiffs complaints was actually done. While the
extent of an investigation is administratively determined by the Executive
branch of government, it would seem to be within the mandamas authority
of the court to find that *no* investigation at all into a citizen's detailed
complaint that the law has been violated, is not an acceptable response
from a law enforcement agency. This is especially true when another law
enforcement agency is involved, given the natural tendency of law
enforcement personnel to stick together and overlook the criminal
activities of fellow agencies.
As evidence to this point, no written investigation report was supplied
to Alka Sagar prior to her "determination." Discovery may find that a
phone call or two was made by SA Heller, or it may fail to find even that
minimal an investigation. SA Heller seems to have determined from the
documents supplied by plaintiff Henson that no investigation was
warented because another law enforcement agency was involved.
With respect to the U.S. Attorney's Office, if they had the results of an
actual investigation in hand, they might file charges on their own initiative.
In the more likely case that they do not, it would seem reasonable (given
the newness of this law, and their connivance with the FBI) for this Court
to require (or perhaps strongly "request") a legal argument from them as to
the reason(s) this case should not be prosecuted. This would provide
useful feedback to Congress. For example, an interpretation by the U.S.
Attorney's office in agreement with SA Heller that a warrant to take a
computer will suffice to examine or sequester any electronic mail found
within it, would greatly clarify (i.e. eliminate) the scope of the Fourth
Amendment protection citizens could expect from this section of the law.
It might be noted that, as a result of the publicity in computer circles this
case has received, several other cases have come to the attention of the
plaintiffs. The FBI has investigated *none* of the cases known to the
plaintiffs which have been presented to its agents. Perhaps the Post
Office would be a better agency to be charged with enforcing the
Electronic Communication Privacy Act since the intent of the lawmakers
(see testimony by Senator Leahy quoted in the complaint) was to provide
protection for electronic mail similar to that enjoyed by regular First
Class mail.
Given the rising importance of electronic mail, which may catch up the
volumn of regular first class mail in the next few years, this case would
seem a golden opportunity to clarify the underlying Fourth Amendment
issues.
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