Koubriti v. Convertino et al

Filing 43

AMENDED COMPLAINT filed by Karim Koubriti against Richard Convertino, Michael Thomas. (Attachments: # 1 Exhibit Government's Consolidated Response Concurring in Defendants' Motion for New Trial) (Gonek, Ben)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION
KARIM KOUBRITI,
Plaintiff,
v

Case No: 07-13678
Hon. Marianne O. Battani

RICHARD CONVERTINO
and MICHAEL THOMAS,
Jointly and Severally
and in their Individual Capacities,
Defendants.
_____________________________________________________________________________/
BEN M. GONEK (P43716)
ROBERT S. MULLEN (P54827)
BEN M. GONEK, P.C.
Progressive Legal Services
Attorney for Plaintiff
Attorney for Defendant Convertino
615 Griswold Street
800 Starkweather Street
1300 Ford Building
Plymouth, Michigan 48170
Detroit, Michigan 48226
[phone]
[phone]
RICHARD L. SWICK
Swick & Shapiro, P.C.
Attorney for Defendant Thomas
1225 Eye Street, NW, Suite 1290
Washington, D.C. 20005
[phone]

LENORE M. FERBER (P24223)
Convertino & Associates
801 W. Ann Arbor Trail, Suite 233
Plymouth, Michigan 48170
[phone]

_____________________________________________________________________________/

FIRST AMENDED COMPLAINT
NOW COMES the Plaintiff, KARIM KOUBRITI, by and through his attorney, BEN M.
GONEK, and for his First Amended Complaint states the following:

Jurisdiction Allegations
1.

This action is brought pursuant to the Fifth Amendment of the United States
Constitution and Bivens v. Six Unknown Named Agents of the Federal Bureau of
Narcotics, 403 U.S. 388, 29 L.Ed. 2d 619, 91 S Ct 1999 (1971).

2.

Jurisdiction is conferred upon this Court by 28 USC 1331 et. seq.

3.

The Plaintiff, Karim Koubriti, is a resident of the City of Detroit, Wayne County,
State of Michigan.

4.

Upon information and belief, Defendant Richard Convertino, is resident of
Wayne County, State of Michigan and all times relevant to this Complaint was
employed as an Assistant United States Attorney by the United States Department
of Justice.

5.

Upon information and belief, Defendant Michael Thomas, is resident of Wayne
County, State of Michigan and all times relevant to this Complaint was a Special
Agent employed by with the Federal Bureau of Investigation.

6.

At the time the events alleged in this Complaint occurred, the individually named
Defendants were violating Plaintiff’s constitutional rights and their actions were
clearly unreasonable. As such, the individual Defendants named in this
Complaint are not entitled to the defense of qualified immunity.

7.

All the individually named Defendants are being sued in their individual
capacities and were acting under color of law at all relevant times to this
Complaint.

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8.

This Court has jurisdiction over all the parties and the amount in controversy
exceeds $75,000.00.

Factual Allegations
9.

This lawsuit stems from the violation of the civil rights of the Plaintiff, Karim
Koubriti, in connection with Plaintiff’s arrest and prosecution for the offense of
conspiracy to provide materials for or resources to terrorists contrary to 18 USC
371 and 2339(a). Specifically, Plaintiff is claiming that the named Defendants
violated his Fifth Amendment Rights by maliciously and intentionally
withholding exculpatory evidence and fabricating evidence contrary to Brady v.
Maryland, 373 US 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).

10.

On or about September 17, 2001, six days after the September 11, 2001 attacks on
the United States, a group of task force agents from the Detroit Joint Terrorism
Task Force (“JTTF”), searched an apartment on Norman Street in the City of
Detroit for subjects on the FBI’s Terrorist Watch List. In that apartment, the
JTTF team found three of the Koubriti case defendants along with the following
items, among others, which became evidence in the Koubriti case: a day planner
containing sketches, a videotape and numerous arabic language audio tapes.
None of the individuals on this FBI Terrorist Watch List were found at this
address.

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11.

The Plaintiff was arrested when there was no probable cause for his arrest and
placed into the custody of the United States Marshall Service. The Plaintiff was
initially detained on a complaint for the criminal offense of document fraud.
Plaintiff was detained without bail.

12.

On September 27, 2001, a grand jury issued an indictment charging Plaintiff with
document fraud contrary to 18 USC 1028.

13.

That at the time the Indictment was issued charged Plaintiff with document fraud
neither the Plaintiff nor any of his co-defendants in the criminal case
acknowledged engaging in terrorist activity. There was also no evidence tying
Plaintiff or any of his co-defendants in the criminal case to any terrorist group.
Before Yousif Hnimssa began cooperating with the prosecution, no witness could
testify that either the Plaintiff nor any of this co-defendants in the criminal case
had committed or were intending to commit any terrorist acts.

14.

After the First Criminal Indictment was issued against Plaintiff, Defendant
Convertino with the assistance of Defendant Thomas then began investigating
Plaintiff for terrorist related activities.

15.

Defendants Convertino and Thomas then knowingly presented false evidence
which included perjured testimony to a federal grand jury. Defendants
Convertino and Thomas also failed to disclose numerous facts which would have
completely undermined the evidence they presented to the Grand Jury. Had
accurate and truthful evidence been presented a No Bill would have issued.

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16.

On or about August 28, 2002, a federal grand jury issued a Second Superseding
Indictment charging Plaintiff with terrorist related offenses.

17.

The criminal charges against Plaintiff proceeded to trial. On March 26, 2003, a
trial commenced on the charges of the Indictment before the Honorable Gerald E.
Rosen. The evidence the Government and the Defendants utilized to support the
terrorist related charges consisted of what the government characterized as casing
materials, testimony of Yousif Hnimssa and other “corroborating” evidence.
Special Agent George testified that the casing which he defined as an evaluation
of an area for operational use is always used in preparation for a terror attack.

18.

The alleged casing materials that the Government relied on at trial consisted of
the day planner sketches (The Government alleged that they were sketches of the
Queen Alia Jordan and the Incirlik Air Base). The alleged casing materials also
consisted of a videotape of tourists at the MGM Grand Casino in Las Vegas,
Nevada, Disneyland, and some sites in New York.

19.

The Government at the trial on Plaintiff’s criminal charges also relied on the
testimony Yousif Hnimssa. Hnimssa perjured himself and testified at trial that
Plaintiff and other co-defendants were Islamic fundamentalist and involved in
terrorist activities.

20.

The Government also relied on what they characterized as corroborating
evidence. An example of such corroborating evidence included the “Farhat”
summary of the audio tape recordings.

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21.

Based on the so-called “casing” materials, the testimony of Yousif Hnimssa,
Plaintiff was convicted of a terrorist related offense.

22.

Thereafter, the Plaintiff and his co-defendants in the criminal case filed a series of
motion seeking a judgment notwithstanding the verdict, or in the alternative, a
new trial. The motions alleged that the prosecution team engaged in a pervasive
pattern of outrageous misconduct that deprived them of a fair trial and violated
the very integrity of the judicial system. That claim also included specific
allegations of knowing use of and deliberate failure to correct false testimony;
affirmatively interfering with access to witnesses; improperly concealing
evidence, and; improperly vouching and bolstering witness testimony. The
Government filed responses and there were evidentiary hearings.

23.

At one of the hearings, Judge Rosen found that two previously undisclosed
documents clearly contained on their face indication both impeaching and
exculpatory material. Judge Rosen also further noted that there was no question
that the material should have been turned over. Although the Court declined to
decide whether the failure to disclose the material affected the verdict, Judge
Rosen opined that these documents should have been disclosed to the defense.
The Court also ordered the government to conduct a thorough review of every
document in the case to determine if there were any documents that “were even
close to being Brady or Giglio material. The Court also characterized the posttrial proceedings as a “fine kettle of fish” and the most unpleasant task that he had
has in almost fourteen years of being a judge. The Court also indicated that it

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would not rule on the new trial motions until this review was complete.
24.

Several months later, the Government concluded it’s review of the case and
issued a pleading called the Government’s Consolidated Response Concurring in
Defendant’s Motion for a New Trial and Government’s Motion to Dismiss Count
I without Prejudice and Memorandum of Law in Support Thereof. (Attached as
Attachment 1 to this Amended Complaint and incorporated as if more fully stated
in this pleading).

25.

In that pleading, the government concluded that there was no reason or
probability that it could endure further hearings and emerge with the convictions
of Plaintiff intact.

26.

The Government also concluded in the pleading, in its best light, the record would
show that the prosecution committed a pattern of mistakes and oversights that
deprived the defendants of discoverable evidence (including impeachment
materials) and created a record filled with misleading inferences that such
material did not exist. The Government asked the Court to grant Koubriti a new
trial in the criminal case. On June 1, 2006, Judge Rosen entered an Order setting
aside the convictions and ordering a new trial.

27.

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;

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B.

Failing to disclose that none of the Defendants could not establish which
site or sites the sketches established (if either) after their respective trips to
Jordan;

C.

Ordering or directing Defendant Thomas not to memorialize any of the ten
to twenty interviews of Yousif Hnimsssa 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.

28.

Had Defendant Convertino not presented fabricated evidence and/or presented the
exculpatory evidence to Plaintiff, the Grand Jury and/or to Mr. Koubriti’s
lawyers, Plaintiff would not have been charged or convicted of any criminal
offense.

29.

Defendant Thomas also willfully and intentionally withheld exculpatory evidence
or fabricated evidence in the following manner:
A.

By failing to turn over photographs he received of the Queen Alia
Hospital to Defendant Convertino;

B.

Failing to disclose e-mails to Defendant Convertino. The e-mails
undermined Defendant Thomas’ or the testimony of Harry Raymond
Smith concerning the sketches of the Queen Alia Hospital;

C.

Failing to disclose to Defendant Convertino that Nassa Ahmad told him
his mentally unstable brother might have been doodling in the day planner
in question;

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D.

Failing to disclose to Defendant Convertino that Air Force OSI SA
Goodnight stated that the alleged sketch of the Incirlik Air Base was not
accurate;

E.

Failing to disclose the names of witnesses who could testify that the
sketches did not represent the Incirlik Air Base;

F.

Failing to disclose a 9/11/2007 e-mail where Defendant Thomas admitted
that there was difficulty transcribing the audio portions of the videotape
due to among other things, the Tuniusei or Algeria dialect speech;

G.

Failing to record by way of 302, the contents of the ten interviews with
Yousif Hnimssa;

H.

Failing to disclose to Defendant Convertino that Yousif Hnimssa made
many different statements.

30.

Had Defendant Thomas not presented fabricated evidence and/or presented the
exculpatory evidence to Defendant Convertino and the Grand Jury, Plaintiff
would not have been charged or convicted of any criminal offense.
COUNT ONE
Violation of the Fifth Amendment - All Defendants

31.

Plaintiff by this reference incorporates all previously pled paragraphs.

32.

That as a result of their unlawful, malicious, reckless and indifferent acts or
omissions, the Defendants alone and in concert, conspired to and acted under
color or law but contrary to law and did deprive Plaintiff of his rights, privileges,

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or immunities secured under the Constitution and laws of the United States,
including his right to due process of law and to a fair trial, as guaranteed by
Amendment V of the United States Constitution, by knowingly or recklessly
fabricating evidence against him; by failing to disclose exculpatory evidence in
his favor; and by obfuscating or misrepresenting the facts to the Grand Jury and at
his trial.
33.

That as a direct and proximate result of the conduct of the Defendants, referred to
more fully above, Plaintiff suffered loss of liberty; incarceration, and
imprisonment. He further suffered and continues to suffer embarrassment;
indignation; anxiety, mental anguish; emotional distress; humiliation; outrage;
shame; fear; loss of income; damage to reputation; denial of constitutional rights;
and other injuries, damages or consequences related to the incident.

THEREFORE, for all the above reasons, Plaintiff demands judgment against Defendants
jointly and severally for whatever amount the jury may determine for compensatory damages.
Further, Plaintiff demands judgments against each Defendant individually for punitive damage in
whatever amount the jury may determine, plus costs, interest and actual attorney fees and
whatever other relief is deemed reasonable and just under the circumstances.
Relief Requested
WHEREFORE, Plaintiff respectfully requests that this Honorable Court grant the
following relief against Defendants:
a.

Compensatory damages in the amount of $9,000,000.00;

b.

Punitive and/or exemplary damages in an amount which is fair, just and

reasonable;

c.

Such other and further relief as this Court may deem appropriate, including costs,

interest and reasonable attorney fees pursuant to 42 U.S.C. § 1983.
Respectfully submitted by:
s/ Ben M. Gonek
BEN M. GONEK (P43716)
BEN M. GONEK, P.C.
Attorneys for Plaintiff
1300 Ford Building
615 Griswold Street
Detroit, Michigan 48226
[phone]
[e-mail]
Dated: April 17, 2008

CERTIFICATE OF SERVICE
BEN M. GONEK hereby states that on the 17th day of April 2008, he caused the
foregoing First Amended Complaint to be filed electronically with the United States District
Court and that copies of said First Amended Complaint were forwarded to all counsel of record
using the ecf system.
s/ Ben M. Gonek
BEN M. GONEK (P43716)