Bouchard v. Hartunian et al

Filing 22

DECISION & ORDER. It is ORDERED that Defendants' 18 motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6) is GRANTED. Signed by Senior Judge Thomas J. McAvoy on 6/24/2015. (dpk)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
_________________________________________
MICHAEL G. BOUCHARD,
Plaintiff,
v.

1:14-cv-752

RICHARD S. HARTUNIAN, MICHAEL
C. OLMSTEAD, TAMARA THOMPSON,
EDWARD R. BROTON, THOMAS A.
CAPEZZA, THOMAS M. FATTORUSSO,
JR., BRYAN HAAG, THE FEDERAL
BUREAU OF INVESTIGATION, THE
INTERNAL REVENUE SERVICE,
JOHN DOE 1-20 AND JANE DOE 1-20,
Defendants.
_________________________________________
THOMAS J. McAVOY
Senior United States District Judge.
DECISION & ORDER
Plaintiff Michael G. Bouchard (“Plaintiff”) brings this pro se civil action pursuant to
Bivens v. Six Unknown Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971) and
the Racketeer Influenced and Corrupt Organizations (“RICO”) Act, 18 U.S.C. § 1961, et
seq. Plaintiff brings his claims after an indictment by a grand jury, a jury trial, and
conviction on four counts related to his role as an attorney in real estate transactions.
Defendants have moved to dismiss the Complaint.
I.

Background
Plaintiff’s Complaint alleges that he was the subject of a joint investigation by the

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IRS and FBI for his role in real estate transactions over a period of many years. See
Complaint, dkt. # 1. The investigation focused on an alleged conspiracy, bank fraud, and
making false statements to lenders. Plaintiff alleges that Defendants engaged in an
“unjustified, unethical, illegal and unconstitutional pursuit, investigation, targeting,
prosecution and persecution of” him. Id. at ¶ 14. Plaintiff contends that Defendants
“falsely alleged” that he, “while acting as an attorney, participated in two schemes or
conspiracies to defraud mortgage lenders[.]” Id. Plaintiff’s Complaint describes the
criminal allegations against him and the government’s investigation. Id. at ¶¶ 15-34.
Plaintiff contends that the investigation was characterized by mistreatment and coercion of
witnesses, false and misleading statements to and about the Plaintiff by investigators and
witnesses, misuse of legal processes, and a failure by agents to provide Plaintiff in a
timely fashion with exculpatory information obtained in witness interviews. Id. Plaintiff
also contends that Defendants misused the grand jury process to bring about his
indictment and prevented exculpatory witnesses from testifying in his favor. Id. at ¶¶ 3537. Plaintiff likewise asserts that much of the information presented to the jury was false,
misconstrued or even fabricated; witness statements at the grand jury were contradicted
by other sworn statements made in other fora. Id. at ¶¶ 42-58. Plaintiff further alleges
that Defendants indicted him as retaliation for his complaints about the grand jury process.
Id. at ¶ 38. The grand jury indicted in a 24-count indictment on July 25, 2012. Id. at ¶ 39.
Count 1 alleged a conspiracy. Id. Counts 2-23 accused Plaintiff of bank fraud. Id. The
final count, Count 24, alleged Plaintiff made false statements to lenders. Id.
Plaintiff’s trial commenced November 13, 2012 in U.S. District Court. Plaintiff was
convicted on four of the twenty four counts: Count 1 for conspiracy in violation of 18
U.S.C. § 371, Counts 17 and 19 for bank fraud in violation of 18 U.S.C. § 1344, and Count
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24 for making false statements to lenders in violation of 18 U.S.C. § 1014. Plaintiff
contends that the testimony of witnesses at trial contradicted their earlier sworn
statements. Id. at ¶¶ 59-80.
Plaintiff has not filed any appeals of his convictions nor any habeas corpus petition,
but has instead filed the instant Complaint. Plaintiff’s Complaint raises twelve counts.
The first nine are raised against the United States Attorneys and other federal agents and
agencies who investigated and prosecuted his case. The counts all allege misconduct
that includes:
allowing [agents] to conduct an improper ‘investigation’ of the plaintiff,
obstructing justice, coercing witnesses into lying in front of the grand jury and
the trial jury, using fake documentary evidence in front of the grand jury and
trial jury, presenting perjured testimony to the grand jury, the trial jury and the
Court, knowingly failing to introduce, present or disclose to the grand jury
substantial evidence that existed that negated the alleged guilt of the subject
of the investigation (the plaintiff herein), denying Michael G. Bouchard of his
constitutional right to a proper grand jury proceeding, denying Michael G.
Bouchard his constitutional right to due process, the [knowing] suppress[ion]
[of] evidence in the form of the government’s entire ‘file’ in accordance with
what the government represented to be an ‘open file discovery’ policy,
knowing violations of the Supreme Court cases Brady, Jencks and Giglio,
depriving the defendant of the use of such evidence in his defense of serious
criminal charges lodged against him, allowing inadequate or no interviews of
persons to be memorialized, engaging in and allowing prosecutorial
misconduct with respect to Michael G. Bouchard, engaging in and allowing
the malicious prosecution of Michael G. Bouchard, by unjustifiably targeting
Laurie Hinds and Malissa [sic] Edgerton, thereby denying the plaintiff
Michael G. Bouchard the constitutional right to compulsory process to call
witnesses on his behalf at trial, by violating and allowing to violated ethical
guidelines applicable to attorneys and by allowing to exist and maintaining a
‘Code of Silence’ with respect to misconduct of Assistant US Attorneys and
government agents described herein.
Id. at ¶ 98. Plaintiff seeks compensatory and punitive damages for these alleged

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violations of his rights.1 Plaintiff also alleges a pattern of racketeering activity by the
Defendants in violation of the RICO Act. The object of the RICO conspiracy, Plaintiff
alleges, was “to produce the wrongful investigation, wrongful indictment, wrongful arrest
and wrongful conviction of the plaintiff on four counts in the frivolous indictment.”
Complaint at § 100. The final two counts of the Complaint are state-law claims for
intentional infliction of emotional distress and breach of fiduciary duty.
II.

Standards
Defendants move to dismiss the Complaint pursuant to Federal Rule of Civil

Procedure 12(b)(6). In addressing such motions, the Court must accept “all factual
allegations in the complaint as true, and draw[] all reasonable inferences in the plaintiff’s
favor.” Holmes v. Grubman, 568 F.3d 329, 335 (2d Cir. 2009). This tenet does not apply
to legal conclusions. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). “Threadbare recitals of
the elements of a cause of action, supported by mere conclusory statements, do not
suffice.” Id. at 678. “To survive a motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face.” Id.
(quoting Bell Atl. v. Twombly, 550 U.S. 544, 570 (2007)). W hen, as here, the Plaintiff
proceeds pro se, the Court must “‘construe [the complaint] broadly, and interpret [it] to
raise the strongest arguments that [it] suggests.’” Weixel v. Bd. of Educ. of N.Y., 287 F.3d
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Plaintiff ostensibly brings this claim pursuant to Bivens v. Six Unknown Named
Agents fo Federal Bureau of Narcotics, 403 U.S. 388 (1971). Such claims involve suits
“for money damages, sued in their individual capacities, for violations” of the Plaintiff’s
constitutional rights. M.E.S., Inc. v. Snell, 712 F.3d 666, 671 (2013). The plaintiff in such
an action “is required to allege facts indicating that defendants were personally involved in
the claimed constitutional violation.” Arar v. Ashcroft, 585 F.3d 559, 569 (2d Cir. 2009).
The Plaintiff’s Complaint alleges Defendants violated various federal criminal statutes,
which do not amount to constitutional violations under Bivens. The Court will give the
Complaint the generous reading required of pro se actions, however, and consider
whether Plaintiff could claim a violation of some constitutional right.
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138, 146 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)). “This
is especially true when dealing with pro se complaints alleging civil rights violations.” Id.
III.

Discussion
Plaintiff has filed the instant action claiming various procedural and constitutional

violations during the investigation, grand jury hearing and subsequent trial that led to
Plaintiff’s conviction. (Complaint, (“Cmplt.”) Dkt. No. 1 at 2). Plaintiff argues that,
throughout the course of these events, the defendants falsified documents, presented
untrue testimony, and acted within a conspiracy to wrongfully convict him. Plaintiff
proclaims his innocence on numerous occasions throughout his Complaint.
The Defendants assert that because Plaintiff’s conviction has not been overturned,
his action is barred by Heck v. Humphrey, 512 U.S. 477 (1994), which requires that a
conviction or sentence to be reversed, expunged, declared invalid, or impugned before a
civil action may be filed that challenges that conviction, applies to Plaintiff’s Complaint.
It is well established that the civil court system may not be used to collaterally
attack a criminal conviction. Heck, 512 U.S. at 484-85; see also Covington v. City of New
York, 171 F.3d 117, 127 (2d. Cir 1999). Plaintif f brings in part a Bivens action. A Bivens
action is a civil complaint that “requires a plaintiff to allege that a defendant acted under
color of federal law to deprive plaintiff of a constitutional right.” Tavarez v. Reno, 54 F.3d
109, 110 (2d Cir. 1995). A Bivens claim is similar to a § 1983 claim, and as such, the law
applicable to a § 1983 claim is also applicable to a Bivens claim. Id. To bring a § 1983
claim and “recover damages for allegedly unconstitutional conviction or imprisonment...
the conviction or sentence [must be] reversed on direct appeal, expunged by executive
order, declared invalid by a state tribunal authorized to make such determination, or called
into question by a federal court’s issuance of a writ of habeas corpus.” Heck, 512 U.S. at
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486-87. This is required because permitting “a convicted criminal defendant to proceed
with a [civil] claim would permit a collateral attack on the conviction through the vehicle of
a civil suit.” Id. at 484. Thus, a Plaintiff “has no cause of action . . . unless and until the
conviction or sentence is reversed, expunged, invalidated, or impugned by the grant of a
writ of habeas corpus.” Id. at 489. In the absence of such a determination, Plaintiff
cannot prevail on a civil claim and Heck bars the action. Id. Thus, “[c]ivil lawsuits may not
be used to collaterally attack criminal convictions.” Spinale v. United States, No.
03cv1704, 2004 U.S. Dist. LEXIS 238 at *40 (S.D.N.Y. Jan. 9, 2004) (citing Heck, 512
U.S. 477 and Stichting Ter Behartiging Van De Belangen Van Oudaandeelhouders In Het
Kapitaal Van Saybolt International B.V. v. Schreiber, 327 F.3d 173, 180 (2d Cir. 2003)).
Plaintiff is currently imprisoned as a result of his conviction and sentencing. Plaintiff
concedes that neither his conviction nor sentence has been “reversed, expunged,
invalidated, or impugned by the grant of a writ of habeas corpus.” Plaintiff’s conviction is
based on the same investigation, trial and facts that are the basis for the present claim.
The portions of the Complaint described above clearly indicate that the violations Plaintiff
claims all concern his trial and conviction, whether he chooses to couch his claims as
violations of his right to due process or allegations of a RICO conspiracy. A finding on the
behalf of the Plaintiff in the instant claim would necessarily call into question the validity of
Plaintiff’s conviction. As such, all present claims are barred by the rule articulated in Heck
as an attempt at a collateral attack on his criminal conviction.
Plaintiff argues that even if his Complaint should be dismissed for the offenses he
was convicted of, it should not be dismissed for the offenses he was acquitted of.
(Plaintiff’s Memorandum in Opposition, dkt. # 20 at 2). Defendants argue that all related
offenses would need to have been invalidated or expunged to bring a Bivens claim in
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relation to any of the charged offenses. (Defendant’s Reply, dkt. # 21 at 1-2).
Essentially, Plaintiff’s claims are an attempt to allege malicious prosecution against
the attorneys and agencies that procured his conviction. In order to bring a claim based
on a theory of malicious prosecution, Plaintiff must show that all counts against him had
been reversed, expunged, invalidated, or impugned. DiBlasio v. The City of New York,
102 F.3d 654, 659 (2d Cir. 1996) (Plaintiff could not bring malicious prosecution claim
after having one conviction overturned, but having other related convictions upheld).
When there is a related conviction it shows that “the [prosecution’s] case did not end in
failure or in [Plaintiff’s] favor.” Id. As explained above, the RICO claim alleges as
predicate acts only that the Defendants conspired to assure his wrongful conviction, which
the Court considers simply a malicious prosecution claim given another name. The RICO
claim serves simply as a collateral attack on the conviction, and is barred by Heck. Until
Plaintiff can show that the case ended in his favor on all 24 counts in the indictment,
Plaintiff’s claims are barred.
Furthermore, Plaintiff’s contention that he had to file his Complaint in order to
satisfy the statute of limitations is without merit. The statute of limitations does not begin
to run until the Plaintiff has a cognizable claim. Heck, 512 U.S. at 489. As Plaintiff’s
federal claims are precluded by Heck, the statute of limitations on any claims has not
begun to run.2
IV.

Conclusion
Plaintiff’s claims are subject to the rule in Heck, and therefore barred because his

convictions were not reversed, expunged, invalidated, or impugned. Plaintiff has no

2

The Court declines to exercise jurisdiction over any state-law claims. See Valencia
v. Sung M. Lee, 316 F.3d 299, 306 (2d Cir. 2003).
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cognizable federal claim at this time. Without a cognizable claim, Plaintiff has failed to
state a claim for which relief may be sought.
For the reasons stated above the Court will grant the defendants’ motion to dismiss.
It is therefore ORDERED that:
1. Defendants’ motion to dismiss the complaint pursuant to Fed.R.Civ.P. 12(b)(6),
dkt. # 18, is GRANTED.

IT IS SO ORDERED.
DATEDJune 24, 2015

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