Karim Koubriti v. Richard Convertino

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 10a0016p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

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KARIM KOUBRITI,

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Plaintiff-Appellee,

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No. 09-1016

v.

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Defendant-Appellant, -

RICHARD CONVERTINO,

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MICHAEL THOMAS, -

Defendant. N

Appeal from the United States District Court

for the Eastern District of Michigan at Detroit.

No. 07-13678—Marianne O. Battani, District Judge.

Argued: October 14, 2009

Decided and Filed: February 3, 2010

*

Before: KENNEDY and ROGERS, Circuit Judges; HOOD, District Judge.

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COUNSEL

ARGUED: Robert S. Mullen, ROBERT S. MULLEN AND ASSOCIATES, PLLC,

Plymouth, Michigan, for Appellant. Ben M. Gonek, LAW OFFICE, Detroit, Michigan,

for Appellee. ON BRIEF: Robert S. Mullen, ROBERT MULLEN AND

ASSOCIATES, PLLC, Plymouth, Michigan, for Appellant. Ben M. Gonek, LAW

OFFICE, Detroit, Michigan, for Appellee.

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OPINION

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KENNEDY, Circuit Judge. Defendant-Appellant Richard Convertino appeals

the district court’s partial denial of his motion to dismiss for failure to state a claim in

*

The Honorable Joseph M. Hood, United States District Judge for the Eastern District of

Kentucky, sitting by designation.

1

No. 09-1016 Koubriti v. Convertino Page 2

this civil action filed against him by Plaintiff-Appellee Karim Koubriti. Koubriti seeks

monetary damages from Convertino, pursuant to Bivens v. Six Unknown Named Agents

of Federal Bureau of Narcotics, 403 U.S. 388 (1971), for constitutional violations that

Convertino allegedly committed while serving as the Assistant United States Attorney

who prosecuted Koubriti for conspiracy to provide material support or resources to

terrorists in violation of 18 U.S.C. §§ 371 and 2339A, and conspiracy to engage in fraud

or misuse of visas, permits, or other immigration documents in violation of 18 U.S.C.

§§ 371 and 1546(a). Because 1) Plaintiff has pointed to no harm to himself from the

investigation Convertino conducted except the non-disclosure of certain exculpatory

evidence at trial, and 2) Convertino is shielded by prosecutorial immunity for such non-

disclosures of exculpatory evidence, we REVERSE the decision of the district court

denying in part Convertino’s motion to dismiss and AFFIRM its decision to the extent

that it granted Convertino’s motion in part.

FACTUAL AND PROCEDURAL BACKGROUND

On September 17, 2001, in response to the September 11, 2001, terrorist attacks,

a team of federal agents went to a house at 2653 Norman Street in Detroit in an attempt

to interview one Nabil Al-Marabh, an individual on the FBI’s “watch list” of suspected

terrorists.1 Upon entering the house, the agents found Plaintiff Karim Koubriti, Ahmed

Hannan, and Farouk Ali-Haimoud. A subsequent search of the house turned up false

identity documents for each occupant, as well as “over 100 audio tapes featuring

fundamentalist Islamic teachings, a videotape depicting a number of American tourist

landmarks, and a day planner bearing suspicious drawings labeled ‘The American Base

1

These facts, as well as the vast majority of other facts stated in this opinion, come from an

exhibit that was attached to Koubriti’s First Amended Complaint. The exhibit–titled “Government’s

Consolidated Response Concurring in the Defendants’ Motions for a New Trial and Government’s Motion

to Dismiss Count One Without Prejudice and Memorandum of Law in Support Thereof”–was originally

filed by the government in response to the motion for a new trial that Koubriti filed in his underlying

criminal case, United States v. Koubriti, Case No. 01-80778 (E.D. Mich.). The district court relied on this

document for its version of the facts, and both parties rely heavily on it for presentation of the facts of the

case to this Court. “[D]ocuments attached to the pleadings become part of the pleadings and may be

considered on a motion to dismiss.” Commercial Money Ctr., Inc. v. Illinois Union Ins. Co., 508 F.3d 327,

335 (6th Cir. 2007) (citing Fed. R. Civ. P. 10(c)).

No. 09-1016 Koubriti v. Convertino Page 3

in Turkey under the Leadership of Defense Minister,’ and ‘Queen Alia, Jordan.’”2

United States v. Koubriti, 199 F. Supp. 2d 656, 659 (E.D. Mich. 2002). All three men

were arrested, and each was charged the next day with possession of false identification

and/or immigration documents in violation of 18 U.S.C. §§ 1028(a)(4), 1546, and 371.3

Responsibility for prosecution of the case was assigned to Defendant Richard

Convertino, then an Assistant United States Attorney for the Eastern District of

Michigan. Convertino, along with FBI Agent Michael Thomas and others, began

investigating the men for any ties to terrorist organizations or activities. Convertino

eventually developed a theory that the men–along with Abdel Ilah El Mardoudi–were

a “cell” or “sleeper cell” of an Islamic terrorist organization aiming to assist a

transnational network of radical Islamists influenced by the Salafiyya religious

movement. Based on his theory, Convertino caused the filing of a second4 and then

third5 superseding indictment against Koubriti and the others which added to the existing

charges a count of conspiracy to provide material support or resources to terrorists in

violation of 18 U.S.C. §§ 371 and 2339A.

At Koubriti’s criminal trial, the government relied on three different types of

evidence to establish its terrorism case: 1) expert testimony that the day planner sketches

and videotape seized from the Norman house constituted terrorist “casing”6 material;

2) the testimony of Koubriti’s former housemate, Yousseff Hmimssa, that the defendants

indeed had terrorist leanings and intentions; and 3) corroborating evidence that the

2

The government would later allege that these two sketches, respectively, were of a hardened air

shelter at the United States Air Base in Incirlik, Turkey, and of the U.S.-operated Queen Alia military

hospital in Amman, Jordan.

3

On September 27, 2001, an indictment returned on the same charges. Youseff Hmimssa, a

former housemate of the men, was also named as a codefendant in this indictment. However, the charges

against him were later severed because of his agreement to cooperate with the government and testify

against his fellow defendants. See United States v. Koubriti, 307 F. Supp. 2d 891, 894 n.1 (E.D. Mich.

2004). This occurred sometime in March 2002, prior to the Second Superseding Indictment.

4

Abdella Lnu and Youseff Hmimssa were also named in this indictment.

5

El Mardoudi was also added as a codefendant in this indictment.

6

Both Koubriti and Convertino (as well as the government in the Koubriti’s criminal case) use

this term in their briefs to describe this evidence. The parties appear to use this term to suggest that the

material was specifically being used to help the defendants develop and plan their intended attacks.

No. 09-1016 Koubriti v. Convertino Page 4

defendants had committed acts consistent with terrorist activities, such as committing

document and credit fraud, attempting to obtain commercial truck licenses for

transporting hazardous materials, possessing audio tapes of fundamentalist speakers, and

making international wire transfers. On June 3, 2003, after a trial spanning three

months, a jury convicted Koubriti of Count I (conspiracy to provide material support or

resources to terrorists) and Count II (conspiracy to engage in fraud and misuse of visas,

permits, and other documents).7

On October 15, 2003, Koubriti and the other defendants filed a Motion for New

Trial on the grounds that the government suppressed material evidence contrary to Brady

v. Maryland, 373 U.S. 83 (1963). Motion for New Trial, United States v. Koubriti, Case

No. 01-80778 (E.D. Mich. Oct. 15, 2003). On December 12, 2003, the trial court held

a hearing regarding the claim and found that two previously undisclosed documents in

the possession of the government constituted material evidence that should have been

disclosed to the defense. Accordingly, the court ordered the government to conduct a

full and independent review of its case files to determine if there were other documents

that should have been disclosed pursuant either to Brady or Giglio v. United States, 405

U.S. 150 (1972). On June 29 and August 30, 2004, the government disclosed numerous

additional documents that had not previously been submitted or shown to Koubriti and

the other defendants.

On August 31, 2004, the government filed a further response to Koubriti’s

motion which concurred in the request for a new trial and asked the court to dismiss the

terrorism count without prejudice. In its brief to the court, the government provided a

detailed description of several instances where it had failed to disclose relevant,

exculpatory, or otherwise discoverable material. With respect to the alleged casing

materials, the government acknowledged several material non-disclosures, including:

1) photographs of the Queen Alia hospital that had been taken by a government agent

investigating in Jordan; 2) statements disclosing that there was not a consensus among

7

El Mardoudi was also convicted of both counts. Hannan was convicted of document fraud, but

not of the terrorism charge. Ali-Haimoud was acquitted of all charges.

No. 09-1016 Koubriti v. Convertino Page 5

government officials that any of the sketches represented the hospital; 3) that some

government experts believed that the videotape was not casing material; 4) that there

was no consensus that any of the sketches represented a hardened air shelter at the

Incirlik Air Base; and 5) that some agents actually believed that the drawings merely

represented a map of the Middle East. The government also acknowledged that

Convertino had traveled to Jordan with Agent Thomas in late Febraury 2002 to visit the

sites allegedly depicted by the day planner sketches. With respect to Yousseff

Hmimssa’s testimony, the government again acknowledged several material non-

disclosures, including: 1) a letter from a prison inmate indicating that Hmimssa had

bragged to him while they were both incarcerated that he had fooled the FBI and the

Secret Service; 2) other documentation indicating that, contrary to his testimony,

Hmimssa harbored deep-seated anti-American views; and 3) that Convertino and other

officials interviewed Hmimssa more than ten times prior to trial and that Convertino

“made a deliberate decision not to have the FBI take any notes or prepare any

memoranda of these sessions in order to limit defense counsel’s ability to cross-examine

Hmimssa.” Finally, with regard to the government’s corroborating evidence, the

government again acknowledged that it had failed to disclose certain material evidence.

The trial court in Koubriti’s criminal trial dismissed the defendants’ terrorism

charge without prejudice and granted a new trial as to the fraud count. United States v.

Koubriti, 336 F. Supp. 2d 676 (E.D. Mich. 2004). Koubriti was released on bond on

October 12, 2004 and is now under the supervision of Pretrial Services. The government

has since filed a new indictment against Koubriti, charging him solely with conspiracy

to commit mail fraud in violation of 18 U.S.C. § 371.

Following the dismissal, Convertino was indicted on charges of conspiracy to

obstruct justice and make false declarations in violation of 18 U.S.C. § 371, obstruction

of justice in violation of 18 U.S.C. §§ 2 and 1503, making a materially false declaration

before a court in violation of 18 U.S.C. §§ 2 and 1623, and obstruction of justice in

violation of 18 U.S.C. § 1503 based on his conduct at the trial. On October 31, 2007,

Convertino was acquitted of all counts. The Michigan Attorney Grievance Commission

No. 09-1016 Koubriti v. Convertino Page 6

also investigated Convertino’s actions relating to the Koubriti case, but it did not bring

any disciplinary charges.

On August 30, 2007, Koubriti filed the present action. In his complaint–which

named Convertino, Thomas, and Ray Smith8 as co-defendants–Koubriti seeks relief

pursuant to the Fifth Amendment and Bivens v. Six Unknown Named Agents of the

Federal Bureau of Narcotics, 403 U.S. 388 (1971). Koubriti requested $9,000,000 in

compensatory damages plus punitive damages arguing that:

Defendants violated his Fifth Amendment Rights by maliciously and

intentionally withholding exculpatory evidence and fabricating evidence

contrary to Brady v. Maryland, 373 U.S. 83, 87 (1963), prior to and

during his prosecution for the offense of conspiracy to provide materials

for or resources to terrorists contrary to 18 U.S.C. §§ 371 and 2339(e).

The complaint then sets out the following claims with respect to Convertino’s liability:

Defendant Convertino while acting in an investigative type role withheld

exculpatory evidence or fabricated evidence in the Plaintiff’s criminal

case by:

A. Failing to turn over photographs of the Queen

Alia Hospital or ordering that they not be turned over to

the Defendant or presented to the Grand Jury;

B. Failing to disclose that none of the Defendants

could not [sic] establish which site or sites the sketches

established (if either) after their respective trips to

Jordan;9

C. Ordering or directing Defendant Thomas not to

memorialize any of the ten to twenty interviews of Yousif

Hnimssa [sic] prior to the Second Superseding Indictment

being issued; and

D. Failing to disclose the Opinion of Air Force OSI

SA Goodnight to the Grand Jury or Plaintiff concerning

the alleged Incirlik Air Base sketches.

8

Smith was a State Department officer stationed in Jordan who was present during Thomas and

Convertino’s trip to Jordan.

9

Because this statement is somewhat unclear, it bears noting that there was only one trip to

Jordan, which Thomas and Convertino made together. Ray Smith was also present during the trip because

he was stationed in Jordan as an officer for the State Department.

No. 09-1016 Koubriti v. Convertino Page 7

On May 9, 2008, Convertino filed a Motion to Dismiss Pursuant to Fed. R. Civ.

P. 12(b)(6) for Failure to State a Claim Upon Which Relief Can Be Granted. In his brief

supporting the motion, Convertino argued that alternative forms of relief and other

special factors counseled against recognizing a Bivens remedy at all, and in the

alternative, that as prosecutor he was entitled to absolute immunity from the claims.

On December 3, 2008, the district court denied Convertino’s motion to dismiss

the case. Addressing the immunity issue first, the court found that several of the

allegations did in fact fall within the absolute immunity doctrine: specifically, the claim

that Convertino failed to turn over government photographs of the Queen Alia Hospital

as well as the claim that Convertino failed to disclose the opinions of government agents

regarding the alleged Incirlik Air Base sketches. The court found that the rest of the

allegations of the First Amended Complaint referred to actions by Convertino that were

investigatory in nature and thus not entitled to absolute immunity. The court suggested

that Convertino would only have qualified immunity for these claims. It did not analyze

the claims under the qualified immunity standard, however. Rather, it ruled that

“dismissal at this procedural juncture [would be] premature.” Finally, the court ruled

that Koubriti’s Fifth Amendment Due Process claims were cognizable as the basis for

a Bivens action because alternative remedies were insufficient to protect Koubriti’s

interests and because it did not believe there were any special factors counseling against

recognizing the cause of action in this case.

Accordingly, the court denied Convertino’s motion to dismiss. This appeal

followed. Koubriti has not cross-appealed the district court’s ruling that the allegations

other than ¶¶ 27 B and C were barred by absolute immunity. Consequently, the only

questions we have before us are whether the remaining allegations are barred by absolute

prosecutorial immunity or qualified immunity and, if not, whether a Bivens remedy

should even be recognized for these alleged constitutional violations.

No. 09-1016 Koubriti v. Convertino Page 8

JURISDICTION/STANDARD OF REVIEW

This case comes to us on a denial of a motion to dismiss, a posture which is not

normally appealable to this Court. “A district court’s denial of a claim of qualified

immunity, [however,] to the extent that it turns on an issue of law is an appealable final

decision within the meaning of 28 U.S.C. § 1291, notwithstanding the absence of a final

judgment.” Mitchell v. Forsyth, 472 U.S. 511, 530 (1985); see also Carvajal v.

Dominguez, 542 F.3d 561, 566 (7th Cir. 2008) (quoting Mitchell, 472 U.S. at 530).

Furthermore, as the Seventh Circuit has noted:

The Supreme Court recently clarified that the scope of [the collateral

order] doctrine includes jurisdiction over whether ‘to devise a new

Bivens damages action’ and explained:

We recognized just last Term that the definition of an

element of the asserted cause of action was “directly

implicated by the defense of qualified immunity and

properly before us on interlocutory appeal.” Hartman v.

Moore, 547 U.S. 250, 257 n.5 . . . (2006). Because the

same reasoning applied to the recognition of the entire

cause of action, the Court of Appeals had jurisdiction of

this issue, as do we.

Carvajal, 542 F.3d at 566 (quoting Wilkie v. Robbins, 551 U.S. 537, 550 n.4 (2007)); see

also Moldowan v. City of Warren, 578 F.3d 351, 374 (6th Cir. 2009) (finding jurisdiction

to review denial of summary judgment in case asserting a § 1983 claim against state

police officers because qualified immunity was at stake). Thus, we have jurisdiction

over the questions presented by Convertino in this appeal, and we will review the district

court’s decisions de novo. See Moldowan, 578 F.3d at 374 (“Whether a defendant is

entitled to absolute or qualified immunity from liability . . . is a legal question that this

Court reviews de novo.”).

No. 09-1016 Koubriti v. Convertino Page 9

ANALYSIS

I.

Koubriti’s first allegation not dismissed by the district court is that he is entitled

to civil damages under Bivens on the ground that Convertino “failed to disclose, during

Koubiriti’s criminal trial, the fact that the government could not establish which site or

sites the day planner sketches represented (if either) during their trips to Jordan.” In

response, Convertino argues that he is entitled to absolute immunity that bars him from

any potential civil liability related to this failure. We find that Convertino has the better

argument.

Under the Bivens line of cases, the Supreme Court has recognized a cause of

action against federal officials for certain constitutional violations when there are no

alternative processes to protect the interests of the plaintiff and no special factors

counseling against recognizing the cause of action. Wilkie, 551 U.S. at 550. On the other

hand, government officials generally enjoy a presumption of qualified immunity from

civil lawsuits, such that they are “shielded from liability for civil damages insofar as

their conduct does not violate clearly established statutory or constitutional rights of

which a reasonable person would have known.” Wilson v. Layne, 526 U.S. 603, 609

(1999) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982)) (internal quotation

marks omitted). Furthermore, officials enjoy absolute immunity from civil liability

related to their performance of “prosecutorial” functions. See Burns v. Reed, 500 U.S.

478, 486 (1991). The burden of proof is on the official seeking absolute immunity,

however, to prove that the behavior in question falls in the category of behavior that

merits this higher level of protection. Id.

In Burns v. Reed, the Supreme Court mandated that courts use a “functional

approach” when determining whether a government official’s actions fit within the

category of actions traditionally entitled to absolute immunity. Id. Using this approach,

courts must look to “the nature of the function performed, not the identity of the actor

who performed it.” Forrester v. White, 484 U.S. 219, 229 (1988). Functions that serve

No. 09-1016 Koubriti v. Convertino Page 10

as an “integral part of the judicial process” or that are “intimately associated with the

judicial process” are absolutely immune from civil suits. Imbler v. Pachtman, 424 U.S.

409, 430 (1976). Meanwhile, functions which are more “investigative” or

“administrative” in nature, because they are more removed from the judicial process, are

subject only to qualified immunity. Burns, 500 U.S. at 486. Although “[t]he line

between a prosecutor’s advocacy and investigating roles might sometimes be difficult

to draw,” Zahrey v. Coffey, 221 F.3d 342, 347 (2d Cir. 2000), we are not without some

guidance to help determine where that line should be drawn. For example, conduct by

a prosecutor that is nonetheless investigative or administrative in function includes:

“giving legal advice to police,” Spurlock v. Thompson, 330 F.3d 791, 798 (6th Cir.

2003); making “out-of-court statements” at a press conference, Buckley v. Fitzsimmons,

509 U.S. 259, 277-78 (1993); making statements “in an affidavit supporting an

application for an arrest warrant,” Fletcher v. Kalina, 522 U.S. 118, 139 (1977); and

“authorizing warrantless wiretaps in the interest of national security,” Mitchell, 472 U.S.

at 520. On the other hand, prosecutors have absolute immunity from “suits for malicious

prosecution and for defamation, and . . . this immunity extend[s] to the knowing use of

false testimony before the grand jury and at trial.” Burns, 500 U.S. at 484. Likewise,

they have absolute immunity for the following actions: appearances at probable cause

and grand jury hearings, Spurlock, 330 F.3d at 797; evaluation of evidence and

presentation of that evidence at pre-trial and trial proceedings, id.; and preparation of

witnesses for trial, id.

Finally, and most importantly to our review here, prosecutors have absolute

immunity from civil liability for the non-disclosure of exculpatory information at trial.

Imbler, 424 U.S. at 431 n.34. In Imbler, the Supreme Court equated the non-disclosure

of exculpatory information with the use of perjured testimony and ruled that evidence

suppression should be equally protected by absolute immunity. Id. Even though such

behavior is “reprehensible, warranting criminal prosecution as well as disbarment,” the

Court found that allowing civil actions for such allegations would “weaken the adversary

system at the same time it interfered seriously with the legitimate exercise of

prosecutorial discretion.” Id. This Court’s decision in Jones v. Shankland, 800 F.2d 77,

No. 09-1016 Koubriti v. Convertino Page 11

80 (6th Cir. 1986), is also helpful to our review. In Jones, the plaintiff brought a § 1983

action10 against multiple county officials for numerous alleged violations relating to the

plaintiff’s trial and conviction for second-degree murder–a conviction which was later

overturned on federal habeas review when it was determined that the prosecution had

refused to disclose an eyewitness statement that made no mention of the plaintiff being

involved in the shooting. In his civil complaint, the plaintiff there alleged that three

county prosecutors were liable for failing to disclose exculpatory information, including,

but not limited to, the aforementioned witness statement. Based on these allegations,

this Court had no problem finding “that the individual county prosecutors were

absolutely immune from personal liability in damage suits . . . .” Id. According to the

panel, the plaintiff’s claims were “clearly within the scope of immunity contemplated

by the Supreme Court in Imbler.” Id. (emphasis added). “The . . . non-disclosure of

exculpatory information [is] certainly entitled to absolute immunity.” Id.

We fail to see how Imbler and Jones are distinguishable in any functional way

from Koubriti’s claim in the instant case that Convertino failed to disclose the lack of

consensus among government officials as to what the sketches depicted. In the relevant

portion of Koubriti’s complaint, Koubriti alleges that he is entitled to Bivens relief

because “Defendant Convertino . . . withheld exculpatory evidence . . . by: . . . B. Failing

to disclose that [Convertino, Thomas, and Smith] could not establish which site or sites

the sketches established (if either) after their respective trips to Jordan.” As stated, this

is nothing more than an accusation that Convertino failed to disclose exculpatory

evidence. As such, the claim fits squarely in the framework set out by Imbler and Jones

and is thus covered by absolute immunity.

Koubriti attempts to distinguish his claim by focusing on the circumstances

surrounding the acquisition of the alleged exculpatory information produced by

Convertino’s investigation instead of the actual non-disclosure of the information. In

his brief to this court, Koubriti highlights the fact that Convertino traveled to Jordan

10

The Supreme Court has ruled that “the qualified immunity analysis is identical” under § 1983

causes of action and Bivens causes of action. Wilson, 526 U.S. at 609.

No. 09-1016 Koubriti v. Convertino Page 12

some fifteen months before the trial began and investigated the buildings allegedly

depicted in the day planner sketches. The district court, in agreeing with Koubriti, stated

that “immunity cannot extend to actions by a prosecutor that violate a person’s

substantive due process rights by obtaining, manufacturing, coercing or fabricating

evidence before filing formal charges, even if the subsequent use of that evidence is

protected by absolute immunity.” The argument made by Koubriti and the district court

fails to recognize that Koubriti is not requesting relief for some alleged violation that

took place during Convertino’s trip to Jordan. There is nothing in the complaint to

suggest that Koubriti is arguing that he is entitled to relief here because of some due

process violation Convertino committed while he investigated the case in Jordan.11 That

would be a different claim, one that would no doubt not need to rely on Brady. Instead,

what we have in the instant case is an allegation that relies on Brady–a case dealing with

the non-disclosure at trial of exculpatory information–and is based on the non-disclosure

of a pertinent fact, not the underlying investigation itself. There is no claim here of

evidence fabrication, and it is not the evidence that resulted from the trip of which

Koubriti complains. Indeed, it was that evidence which, when finally disclosed,

benefitted Koubriti in obtaining dismissal of his conviction. It was the failure to produce

this favorable evidence resulting from the trip so that Koubriti could have relied on it at

trial to undermine the government’s claim that is the alleged violation underlying this

claim.

The very same policy reasons undergirding the Supreme Court’s decision in

Imbler also counsel in favor of recognizing absolute immunity here. Since prosecutors

are almost always involved with the police’s investigation of crimes, denying absolute

immunity in cases such as this would likely “eviscerate” the absolute immunity in

traditional non-disclosure claims that the Supreme Court has already decided to protect.

Imbler, 424 U.S. at 431 n.34. Likewise, it would “weaken the adversarial system” and

interfere with prosecutorial discretion much in the same way that caused the Imbler

11

The district court refers to a general due process violation but never specifically explains or

even identifies what that violation was. Plaintiff’s complaint does not allege a due process violation aside

from the Brady violations.

No. 09-1016 Koubriti v. Convertino Page 13

Court to rule in favor of granting immunity. See id. Since Plaintiff’s claim (and

underlying harm) is only related to the non-disclosure and not the underlying

investigation, the Imbler and Jones dispositions lead us to the conclusion that Convertino

has absolute immunity from this claim.

II.

The district court also allowed Koubriti to proceed on his Bivens claim relating

to the allegation that Convertino directed FBI Agent Thomas not to memorialize

interviews by Convertino and Thomas of Yousseff Himimssa leading up to trial.

Convertino again argues that he is entitled to absolute immunity from this claim, while

Koubriti argues that Convertino’s relevant behavior was investigative in nature and thus

not entitled to absolute immunity.

In denying the government’s motion as to this claim, the district court stated that

“[t]he instruction by Convertino not to record witness interviews,12 falls outside the

bounds of trial preparation.” In reaching this conclusion, the district court cited to

district court and court of appeals decisions from outside this Circuit for the general

proposition that prosecutors are only entitled to qualified immunity when providing legal

advice to police and other government agents. It thus appears that the district court

considered Koubriti’s claim as one alleging a general due process violation independent

of Brady and its progeny. We view the claim differently. Looking to Koubriti’s First

Amended Complaint filed in the district court, Koubriti specifically alleges the

following: “Defendant Convertino while acting in an investigative type role withheld

exculpatory evidence or fabricated evidence in the Plaintiff’s criminal case by: . . . C.

Ordering Defendant Thomas not to memorialize any of the ten to twenty interviews of

Yousif Hnimssa [sic] prior to the Second Superseding Indictment being issued . . . .”

Koubriti also lays out the basis of his claims on page 3 of the complaint:

12

The district court uses the term “record witness interviews” here notwithstanding the fact that

Koubriti, in his complaint, characterizes the allegation as a failure to “memorialize” the interviews. To

the extent that there is a different between the failure to record the interviews and the failure to

memorialize them, Plaintiff has only alleged the failure to memorialize the interviews. Our analysis relies

on that assumption.

No. 09-1016 Koubriti v. Convertino Page 14

Specifically, Plaintiff is claiming that the named Defendants violated his

Fifth Amendment Rights by maliciously and intentionally withholding

exculpatory evidence and fabricating evidence13 contrary to Brady v.

Maryland, 373 U.S. 83, 87 (1963), prior to and during his prosecution for

the offense of conspiracy to provide materials for or resources to

terrorists contrary to 18 USC 371 and 2339(e).

Viewing these statements together, it seems clear that Koubriti is actually alleging a

simple Brady-related violation in the form of non-disclosure of the statements Hmimssa

made to federal officials in his multiple interviews.14 Koubriti has not asked this Court

to recognize Convertino’s actions here as a freestanding due process violation

independent of Brady. Instead, he consistently relies on Brady to support his claim, a

case which addresses the non-disclosure of exculpatory evidence from the defense at

trial. Brady does not provide guidance as to the constitutional limits of a prosecutor’s

behavior during the investigation of a crime. Therefore, it seems clear to this Court that

Koubriti’s claim here amounts to an attempt to seek damages for a traditional Brady

violation, i.e. failing to disclose the contents of the various interviews in question.

When Koubriti’s claim is characterized as a traditional Brady violation, it

becomes clear that Convertino is entitled to absolute immunity from civil liability

relating to this claim as well. In fact, the immunity analysis is no different than it was

for the previous claim. Just as we stated above, Jones and Imbler make clear that

absolute immunity protects a prosecutor from civil liability for the non-disclosure of

material exculpatory evidence at trial. See Imbler, 424 U.S. at 431 n.34; Jones, 800 F.2d

at 80. Therefore, absolute immunity also shields Convertino from this claim.

13

Although Plaintiff makes this statement in ¶ 9 of the complaint, he does not identify the

“fabricated evidence” alleged there or elsewhere. With respect to the interviews of Hmimssa, there is only

the claim of preventing the creation of evidence for probable impeachment of that witness.

14

Not surprisingly, Koubriti has also made attempts to characterize the claim as something other

than a traditional Brady violation. In so doing, he was able to make Convertino’s underlying behavior

seem more investigative in nature, which would allow him to avoid the absolute immunity hurdle. Koubriti

cannot, however, have it both ways. Either he must state a Brady violation as the basis for this part of his

Bivens action–which must rely on some sort of non-disclosure of evidence by the prosecutor–or he must

state a freestanding Fifth Amendment due process violation independent of Brady and its progeny–which

could then rely on the prosecutor’s directive to the agents not to memorialize the interviews. These are

two distinct claims which require different substantive and legal analysis.

No. 09-1016 Koubriti v. Convertino Page 15

Even if we were to somehow recognize this claim as one of something other than

a mere Brady non-disclosure allegation, we would still find that Convertino has

immunity sufficient to bar this action from proceeding. Assuming arguendo that

Convertino’s relevant behavior (i.e. his direction to federal agents, rather than his non-

disclosure at trial) is “administrative” conduct covered only by qualified immunity,15

that immunity still completely shields Convertino from liability unless 1) he committed

a constitutional violation, and 2) the right that was violated was a clearly established

right of which a reasonable person would have known. Harlow, 457 U.S. at 818.

Whether Koubriti’s allegation, when characterized as a more general due process claim,

amounts to a constitutional violation has not been developed in the lower court record,

nor has it been briefed to this Court. Therefore, it would be improper to reach the merits

of this question. See, e.g., Citizens Coal Council v. EPA, 447 F.3d 879, 905 (6th Cir.

2006) (en banc) (“In short, the panel majority erred in ruling on grounds not raised by

the parties. Because it was improper for the panel majority to reach issues not briefed

by the parties, . . . we decline to reach those issues here.”). Since the Supreme Court’s

decision in Pearson v. Callahan, however, we are no longer required to address the

constitutionality of the alleged conduct first and can resolve the issue by determining

whether such a violation was clearly established. 129 S. Ct. 808, 818 (2009).

In the instant case, even if the claim were to be characterized as one alleging that

Convertino violated Koubriti’s right to due process by ordering agents not to

memorialize the Hmimssa interviews, we could not say that it was clearly established

that such behavior is unconstitutional. “In determining whether a right is clearly

established, we ‘may rely on decisions of the Supreme Court, decisions of this court and

15

Although we assume this conduct is “investigative” here for the purposes of this analysis, we

do not endorse that assumption. Any attempt by Koubriti to characterize Convertino’s directives as

“administrative” or “investigative” is no different than the argument rejected by the Supreme Court in

Imbler. In that case, the relevant conduct was the prosecutor’s request to police not to question a testifying

witness about an unrelated charge until after that witness completed his testimony at trial. Imbler, 424 U.S.

at 431 n.32. In rejecting the petitioner’s contention that that conduct was “investigative,” the Court stated:

“Seen in its proper light, . . . [the prosecutor’s] request of the officers was an effort to control the

presentation of his witness’ testimony, a task fairly within his function as an advocate.” Id. This same

logic arguably applies to the case now before us. Convertino’s directive was part of his effort to prepare

for trial and to control how his witness’ testimony would play out at the trial. See id. As alleged, this

conduct is questionable. Nevertheless, a prosecutor’s conduct in his role as an advocate is protected by

absolute immunity, see Buckley, 509 U.S. at 273, even when that conduct is improper.

No. 09-1016 Koubriti v. Convertino Page 16

courts within this circuit, and in limited circumstances, on decisions of other circuits.’”

Moldowan, 578 F.3d at 381-82 (quoting Spurlock, 167 F.3d at 1006). When evaluating

whether the specific right has been recognized, “[t]he contours of the right must be

sufficiently clear that a reasonable official would understand that what he is doing

violates that right.” Anderson v. Creighton, 483 U.S. 635, 640 (1987). “In other words,

‘the unlawfulness must be apparent.’” Moldowan, 578 F.3d at 382 (quoting Anderson,

483 U.S. at 640).

Here, we can find no case law to support the conclusion that a reasonable official

would have understood that the complained of action violated Koubriti’s rights.

Although Convertino’s directive may be questioned, it cannot be said that its

unlawfulness is apparent, particularly when reviewing the existing case law. While such

behavior is in tension with the policy judgments underlying Brady,16 it would indeed go

well beyond the reasonable limits of the Brady non-disclosure doctrine to say that it also

requires memorialization of interviews. Additionally, cases analyzing sets of facts more

similar to the instant case than those in Brady have suggested that it is not a

constitutional violation. See Moore v. Illinois, 408 U.S. 786, 795 (1972) (“We know of

no constitutional requirement that the prosecution make a complete and detailed

accounting to the defense of all police investigatory work on a case.”); United States v.

Bernard, 625 F.2d 854, 860 (9th Cir. 1980) (“Nor can we find a constitutional basis for

compelling the creation of [written witness statements] under Brady.”) Thus,

Convertino’s behavior, were it to be ruled as a constitutional violation, was not clearly

established as a violation at the time Convertino acted. Convertino’s qualified

immunity, then, would still be sufficient to shield Convertino from this claim, even when

characterized in the way the district court and Koubriti suggest.

16

In Brady, the Supreme Court stated: “The principle . . . is not punishment of society for

misdeeds of a prosecutor but avoidance of an unfair trial to the accused. Society wins not only when the

guilty are convicted but when criminal trials are fair; our system of the administration of justice suffers

when any accused is treated unfairly. . . . A prosecution that withholds evidence . . . of an accused which

. . . would tend to exculpate him . . . does not comport with the standards of justice.” Brady, 373 U.S. at

87.

No. 09-1016 Koubriti v. Convertino Page 17

III.

After it decided not to dismiss Koubriti’s action on prosecutorial immunity

grounds, the district court found that a Bivens action for money damages is “cognizable

for a violation of an individual’s Fifth Amendment due process rights.” Because we rule

today that the case must be dismissed because Convertino is shielded from these claims

by prosecutorial immunity, we need not address the court’s ruling on the applicability

of Bivens relief to this context.

CONCLUSION

For the foregoing reasons, we REVERSE the district court’s decision to the

extent it denied in part defendant Convertino’s motion to dismiss and AFFIRM its

decision to the extent it granted the motion to dismiss. The action is REMANDED for

entry of a judgment of dismissal with respect to defendant Convertino.