BARBIERI et al v. THE UNITED STATES OF AMERICA et al

Filing 23

MEMORANDUM OPINION. SIGNED BY HONORABLE MITCHELL S. GOLDBERG ON 9/28/2017. 9/28/2017 ENTERED AND COPIES E-MAILED.(amas)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF PENNSYLVANIA
__________________________________________
PIETRO A. BARBIERI, ESQ., ET AL,
:
:
Plaintiffs,
:
:
v.
:
:
THE UNITED STATES OF
:
AMERICA, ET AL.,
:
Defendants.
:
__________________________________________:

CIVIL ACTION

No. 16-3748

Goldberg, J.

September 28, 2017
MEMORANDUM OPINION

Plaintiffs Pietro A. Barbieri, Esquire, (“Mr. Barbieri”) and his wife, Jean Marie Barbieri
(“Mrs. Barbieri”), have sued the United States of America (“the United States”), Assistant
United States Attorney Anita Eve (“AUSA Eve”), and FBI Special Agent Brian Cosgriff (“Agent
Cosgriff”) under a theory of wrongful investigation and subsequent indictment of Mr. Barbieri.
Agent Cosgriff is alleged to have performed a flawed investigation, and AUSA Eve is alleged to
have pursued an indictment in retaliation against Mr. Barbieri for his assertion of the attorneyclient privilege.
Presently before me are all Defendants’ motions to dismiss the Amended Complaint. For
the reasons that follow, the Defendants’ motions will be granted, and the claims against the
United States, AUSA Eve, and Agent Cosgriff will be dismissed.
I.

FACTUAL AND PROCEDURAL BACKGROUND
The following facts, viewed in the light most favorable to Plaintiff, are derived from

Plaintiff’s First Amended Complaint.

1

Mr. Barbieri is an attorney experienced in bankruptcy law. He was indicted by a federal
Grand Jury on May 27, 2014 on charges of bankruptcy fraud related to money wired to his
escrow account from his then-client, Debra Messner (“Messner”).
Mr. Barbieri began working with Messner in 2008, initially, on what appears to be a
family court matter regarding what Plaintiff refers to as a “qualified domestic relations order,”
and subsequently pursuing child support from Messner’s husband. Thereafter, Mr. Barbieri
worked with Messner to prepare and file a bankruptcy petition on Messner’s behalf. During
Messner’s deposition for the bankruptcy proceedings, she admitted to a series of crimes. Also
during the deposition, the United States Trustee inquired about a wire transfer into one of Mr.
Barbieri’s escrow accounts.

The deposition was briefly stopped, and when continued,

Mr. Barbieri advised Messner to secure the assistance of a criminal attorney. Mr. Barbieri later
determined that, unbeknownst to him, approximately $22,000.00 had been wire-transferred into
one of his attorney escrow accounts. Mr. Barbieri immediately notified the United States Trustee
and alleges that at a hearing in bankruptcy court on January 12, 2010, the Honorable Jean K.
FitzSimon concluded that he never took possession of the money, never claimed ownership of
the money, and turned the funds over to the United States Trustee within three minutes. (Am.
Compl. ¶¶ 14, 20-22, 27, 30-34, 36-39.)
The United States Trustee’s Office subsequently filed a complaint regarding Messner’s
activities, which was referred to the United States Attorney’s Office and the Federal Bureau of
Investigation (“FBI”) for further investigation. AUSA Eve was the designated prosecutor on the
case, and Agent Cosgriff was the designated investigator.
Agent Cosgriff initially interviewed Messner after serving her with a target letter on
August 26, 2010. In that interview, Messner stated that she did not try to conceal the transfer of

2

funds after her bankruptcy filing, but did not officially notify the bankruptcy judge of the transfer
because “her attorney gave her bad advice.” (Id. ¶¶ 41-44.)
Subsequently, Agent Cosgriff interviewed Messner’s former employer. Following that
interview, AUSA Eve subpoenaed Messner’s client file that was in Mr. Barbieri’s possession. In
a series of letters between Mr. Barbieri, AUSA Eve, and Messner’s public defender, AUSA Eve
continued to demand that Mr. Barbieri turn over Messner’s client file. She again subpoenaed the
file on August 2, 2011. Mr. Barbieri told AUSA Eve that in order for him to deliver the file she
needed to obtain the proper waiver from Messner or a court order. AUSA Eve did not contact
Mr. Barbieri again until June 13, 2013, when she again subpoenaed the file without having
obtained a waiver or court order. Mr. Barbieri ultimately complied with the AUSA Eve’s
request and turned over his client file. (Id. ¶¶ 50-55, 58, 62.)
Sometime around December 12, 2013, Agent Cosgriff met with Messner.

At that

meeting, he inquired about an account with an online brokerage firm that Messner had failed to
report in her bankruptcy paperwork. When asked about the account, Messner initially denied she
had one, but later admitted she did. Messner told Agent Cosgriff that she knowingly left the
account out of her bankruptcy paperwork because Mr. Barbieri told her she did not need to report
it. Messner also said that she had wired $22,000.00 directly into one of Mr. Barbieri’s escrow
accounts to pay her legal bills from the online brokerage account. (Id. ¶¶ 63, 65-66, 70-72.)
On May 20, 2014, Mr. Barbieri received a target letter from the United States Attorney’s
Office. Other than learning that the investigation was related to Messner’s bankruptcy, Mr.
Barbieri was unable to gather any further information before he was indicted on May 27, 2014
on charges of bankruptcy fraud related to the $22,000.00 wired to his escrow account, as well as

3

misrepresentations Messner made to the United States Trustee. Mr. Barbieri was acquitted by a
jury on January 16, 2015. (Id. ¶¶ 83-85, 87, 89-90, 103.)
Mr. Barbieri now contends that AUSA Eve and Agent Cosgriff did not independently
investigate and corroborate Messner’s allegations and failed to interview Mr. Barbieri and
multiple witnesses prior to the indictment, in violation of the FBI Manual of Investigative
Operations and Guidelines (“Guidelines”). Instead, “motivated by resentment, contempt, and the
desire for payback against Mr. Barbieri based on Mr. Barbieri’s refusal to capitulate to
Defendant Eve’s demands for Messner’s confidential client records,” they “chose to engage in an
ersatz, sham investigation of Mr. Barbieri.” In furtherance of this “sham investigation,” Mr.
Barbieri alleges that AUSA Eve and Agent Cosgriff presented testimony in the May 15, 2014
Grand Jury session that “consisted of patently false and misleading information.” For example,
Mr. Barbieri alleges that Agent Cosgriff falsely stated that Mr. Barbieri represented Messner
throughout her divorce proceedings. Mr. Barbieri also contends that Agent Cosgriff “appeared at
[his] office without notice or warrant in violation of [his] Fourth Amendment rights” seventytwo hours before trial began, and “began interviewing [his] employees.” (Id. ¶¶ 73-74, 76-83,
94-97, 102.)
As to the United States, Mr. Barbieri alleges that it is vicariously liable for acts
performed by AUSA Eve and Agent Cosgriff in connection with the investigation and
indictment. Regarding AUSA Eve, Mr. Barbieri alleges that she violated his Fifth Amendment
rights when she sent a “deficient” target letter with “insufficient notice,” and also when she made
misrepresentations during a presentation to the Grand Jury, resulting in an improper indictment.
Finally, Mr. Barbieri alleges that Agent Cosgriff violated his Fifth Amendment rights by lying
and making misrepresentations during a presentation to the Grand Jury, resulting in an improper

4

indictment. Additionally, he alleges that Agent Cosgriff violated his Fourth Amendment rights
by conducting a “sham investigation” that helped to secure the indictment, and making an
“unannounced, warrantless, and unconstitutional search” of Mr. Barbieri’s office, which included
interviewing Mr. Barbieri’s staff. (Id. ¶¶ 117, 120, 132-33.)
Mr. Barbieri brings seven claims against the United States under Count I: invasion of
privacy, intentional infliction of emotional distress, malicious prosecution, abuse of process,
witness intimidation, defamation, and negligence in violation of the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 267, et seq. Mrs. Barbieri brings a claim for loss of consortium against
the United States in Count II. Finally, in Count III, Mr. Barbieri brings claims under Bivens v.
Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), against
AUSA Eve for alleged violations of the Fifth Amendment, and against Agent Cosgriff for
alleged violations of the Fourth and Fifth Amendments.
II.

LEGAL STANDARD
To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

complaint must “contain sufficient factual matter, accepted as true, to ‘state a claim for relief that
is plausible on its face.’” Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The plausibility standard requires more than a
“sheer possibility that a defendant has acted unlawfully.” Id. While it “does not impose a
probability requirement at the pleading stage,” plausibility does require “enough facts to raise a
reasonable expectation that discovery will reveal evidence of the necessary elements of a claim.”
Phillips v. City of Allegheny, 515 F.3d 224, 234 (3d Cir. 2008).
To determine the sufficiency of a complaint under Twombly and Iqbal, a court must take
the following three steps: (1) the court must “tak[e] note of the elements a plaintiff must plead to

5

state a claim”; (2) the court should identify the allegations that, “because they are no more than
conclusions, are not entitled to the assumption of truth”; and (3) “where there are well-pleaded
factual allegations, [the] court should assume their veracity and then determine whether they
plausibly give rise to an entitlement for relief.” Burtch v. Milberg Factors, Inc., 662 F.3d 212,
221 (3d Cir. 2011) (citations omitted). Courts must construe the allegations in a complaint “in
the light most favorable to the plaintiff.” Id. at 220.
Federal Rule of Civil Procedure 12(b)(1) allows a party to move for dismissal of any
claim for which the district court lacks subject matter jurisdiction. A Rule 12(b)(1) motion may
challenge jurisdiction based on the face of the complaint or its existence in fact. See Mortensen
v. First Fed. Savings and Loan Ass’n, 549 F.2d 884, 891 (3d Cir 1977). Where, as here, the
challenge is facial, the court must accept as true all well-pleaded allegations in the complaint and
draw reasonable inferences in favor of the plaintiff. Id.
III.

DISCUSSION
Defendants the United States, AUSA Eve, and Agent Cosgriff have moved to dismiss all

claims against them on multiple grounds.
A. The United States’ Motion to Dismiss
The United States contends that under Pooler v. United States, 787 F.2d 868 (3d Cir.
1986), the claims against it should be dismissed because the discretionary function exception to
the FTCA bars those claims. (Mot., Doc. No. 11, at 6-8.)
“It is axiomatic that the United States may not be sued without its consent and that the
existence of consent is a prerequisite for jurisdiction.” United States v. Mitchell, 463 U.S. 206,
212 (1983). Among the cases in which the United States has waived its sovereign immunity are
those falling within the provisions of the FTCA, which provides for jurisdiction in the district

6

courts over “civil actions on claims against the United States . . . for injury or loss of property, or
personal injury or death caused by the negligent or wrongful act or omission of any employee of
the Government while acting within the scope of his office or employment, under circumstances
where the United States, if a private person, would be liable to the claimant in accordance with
the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1). This is the
exclusive remedy for persons suffering negligently inflicted injuries at the hands of an employee
of the United States acting within the scope of his or her employment. 28 U.S.C. § 2679(b)(1).
This waiver, however, has exceptions. Under 28 U.S.C. § 1680(a), the United States has
not waived its immunity for claims based on “the exercise or performance or the failure to
exercise or perform a discretionary function” on the part of a federal employee. This exception
is known as the “discretionary function exception,” and applies “whether or not the discretion
involved be abused.” Id. The plaintiff bears the burden of demonstrating that his claims fall
within the scope of the FTCA’s waiver of governmental immunity, but the United States bears
the burden of proving the applicability of the discretionary function exception. Merando v.
United States, 517 F.3d 160, 164 (3d Cir. 2008).
In United States v. Gaubert, the United States Supreme Court developed a two-part test
for courts to apply in determining whether the discretionary function exception applies. 499 U.S.
at 322-23. First, a court must determine whether the act giving rise to the alleged injury and thus
the suit involves an “element of judgment or choice.” Id. at 322. If a federal statute, regulation,
or policy “specifically prescribes a course of action for an employee to follow,” the requirement
is not met because “the employee has no rightful option but to adhere to the directive.” Id.
(quoting Berkovitz by Berkovitz v. United States, 486 U.S. 531, 536 (1988)). Second, where the
challenged conduct involves an element of judgment or choice, the court must determine

7

“whether that judgment is of the kind that the discretionary function exception was designed to
shield.” Id. at 322-23. The “focus of the inquiry is not on the agent’s subjective intent in
exercising the discretion conferred by the statute or regulation, but on the nature of the actions
taken and on whether they are susceptible to policy analysis.” Id. at 325.
Here, Mr. Barbieri contends that the acts performed by AUSA Eve and Agent Cosgriff do
not involve “judgment or choice.” He alleges that these acts, executed “in connection with the
sham investigation and wrongful indictment,” constitute invasion of privacy, intentional
infliction of emotional distress, malicious prosecution, abuse of process, witness intimidation,
defamation, and negligence. These acts include conducting an investigation of Mr. Barbieri “that
consisted of Messner’s outlandish claims and Defendants’ blind and evasive refusal to secure the
truth”; delivering a “sham” target letter to Mr. Barbieri; conducting a Grand Jury investigation
that was “intentionally premised on false and misleading testimony”; securing an indictment; and
“through . . . [an] unannounced and warrantless inspection of Mr. Barbieri’s law offices on the
midnight hour before trial, violat[ing] Mr. Barbieri’s Fourth Amendment rights.” (Am. Compl.
¶¶ 110, 117.)
Turning to the first step of Gaubert’s two-step inquiry, I disagree with Mr. Barbieri and
find that the acts pled involve an element of choice. The conduct described in the Amended
Complaint relates to the investigation into Mr. Barbieri and the decision to prosecute him, and
such decisions are entirely discretionary.

See Pooler, 787 F.2d at 870-71 (finding that

investigative methods and a decision to prosecute fall within the discretionary function
exception). Indeed, a decision to prosecute that is alleged to have been malicious still falls
within the discretionary function exception. See, e.g., Gray v. Bell, 712 F.2d 490, 513-14 (D.C.
Cir. 1983) (holding that an FTCA claim was properly dismissed where the claim incorporated a

8

malicious prosecution claim because it “challenge[d] the actual decision to institute
prosecution”); Bradley v. United States, 615 F. Supp. 206, 210-11 (E.D. Pa. 1985) (applying
Gray in holding that a claim of malicious prosecution falls within the discretionary function); see
also Pooler, 787 F.2d at 871 (quoting Gray in finding that a decision to prosecute falls within the
discretionary function exception).1
Mr. Barbieri’s contention that AUSA Eve violated his Fifth Amendment rights, and
Agent Cosgriff violated his Fourth and Fifth Amendment rights, does not alter this outcome
because constitutional tort claims are not actionable under the FTCA. See F.D.I.C. v. Meyer,
510 U.S. 471, 477-78 (1994). Because constitutional tort claims are not actionable under the
FTCA, it follows that the Fourth and Fifth Amendments do not proscribe a course of conduct
that a government agent must follow.2

1

Mr. Barbieri belabors the point that Messner’s deposition and the ensuing 2010 bankruptcy
court hearing before Judge FitzSimon were matters of public record and thus the government
should have been aware of both of these instances and known Mr. Barbieri was innocent. (Pls.’
Resp., Doc. No. 18, at 14.) Whether or not these records were possessed by Agent Cosgriff or
AUSA Eve is irrelevant because investigatory decisions and a decision to prosecute are
discretionary decisions, and, even assuming the events of the 2010 bankruptcy hearing were
exculpatory, there is no requirement to present purportedly exculpatory evidence to the Grand
Jury. See United States v. Williams, 504 U.S. 36, 53-55 (1992) (“Imposing upon the prosecutor
a legal obligation to present exculpatory evidence in his possession would be incompatible with
[the Grand Jury] system.”).
2

Mr. Barbieri asserts that the Supreme Court’s decision in Hartman v. Moore, 547 U.S. 250
(2006), demonstrates that the Fourth and Fifth Amendments proscribe a course of conduct that a
government official must follow. (Pls.’ Resp., Doc. No. 18, at 15.) As is discussed below, the
Supreme Court observed in Hartman that a Bivens suit for retaliatory-prosecution brought
against a prosecutor cannot stand because they are absolutely immune, but can stand against a
“nonprosecutor,” like an inspector, who is alleged to have acted in retaliation and successfully
induced the prosecutor to bring charges that would otherwise not have been brought. 547 U.S. at
261-62. The Supreme Court did not address the discretionary function exception or the Fourth
and Fifth Amendments in Hartman, therefore this case is inapplicable.
9

Mr. Barbieri also contends that the FBI Guidelines proscribe a course of conduct that FBI
agents must follow.3 Those Guidelines, however, are not mandatory regarding the course of
action an agent must follow in interviewing witnesses and building a case. FBI agents must
make judgment calls with respect to interviewing witness, corroborating information provided by
those witnesses, and determining how to use that information in building a case. See generally,
Pooler, 787 F.2d at 871 (discussing the extent to which FBI agents who are placed in charge of
an investigation must make decisions as to how an investigation will be pursued).

The

Guidelines provide no criteria as to what constitutes a sufficient “basis for allegations or other
pertinent information,” how or if an agent must corroborate such a basis, or what “vigorous
steps” must be taken to further develop evidence obtained through a witness. While FBI agents
may be obligated to take certain investigatory steps, courts have consistently held that a
3

The specific sections Mr. Barbieri references are as follows:
An interview cannot be considered thorough unless the account thereof shows the
basis for allegations or other pertinent information furnished by the source during
the interview. Only with the benefit of these important details can the information
be fully and properly evaluated. Statements or allegations may not be accepted
without inquiring of the source as to how source acquired such information, or as
to the basis for beliefs or opinions he/she might express. If his/her information is
based on hearsay, an effort must be made to identify the original source and to
interview that source if feasible to do so. . . .
Derogatory data developed through interviews of witnesses and sources must be
completely approved or disproved and accurately and factually established as
applicable to the person under investigation. The danger of relying upon
information obtained from one source is obvious and vigorous steps must be taken
to further develop such cases through evidence obtained through other sources
and from various investigative techniques. Beware of being misled by
circumstantial evidence and guard against incomplete interviews or overeager
witnesses who deviate from telling what they actually know to what they
erroneously feel the FBI is desirous of obtaining.

(Am. Compl. ¶ 78) (citing FBI Manual of Investigative Operations and Guidelines, Part II, Vol.,
§§ 7-5, 7-7.)
10

government agent’s performance of an obligation requires that agent to make judgment calls, and
thus the discretionary function exception applies to such decisions. See, e.g., Gonzalez v. United
States, 814 F.3d 1022, 1028 (9th Cir. 2016) (holding that an FBI agent’s decision whether or not
to disclose information regarding potential threats is discretionary); Ochran v. United States, 117
F.3d 495, 500-01 (11th Cir. 1997) (holding that the discretionary function exception applies to an
AUSA’s decision as to how to protect a victim because “[e]ven though the [Attorney General]
Guidelines require the AUSA to arrange for the reasonable protection of a victim who is
threatened,” they do not specify how this protection is to be provided).
Regarding the second prong of the Gaubert analysis, that is, whether the judgment “is of
the kind that the discretionary function was designed to shield,” the Supreme Court has noted
that “the basis for the discretionary function exception was Congress’ desire to ‘prevent judicial
second-guessing’ of legislative and administrative decisions grounded in social, economic, and
political policy through the medium of an action in tort.” Berkovitz, 486 U.S. at 536-37 (quoting
United States v. Varif Airlines, 467 U.S. 797, 814 (1984)). Because an FBI agent’s investigatory
decisions and a decision to prosecute are determinations that are policy-based in nature, I find
that the conduct of AUSA Eve and Agent Cosgriff is the type that the discretionary function
exception was designed to shield. See Kelly v. United States, 924 F.2d 355, 362 (1st Cir. 1991)
(finding that decisions to investigate are “at the core of law enforcement activity” and therefore
the type of conduct that the discretionary function exception was designed to safeguard); Pooler,
787 F.2d at 871 (finding that an FBI agent’s investigatory decisions and a decision to prosecute
fell within the discretionary function exception); Woods v. United States, No. 07-593, 2007 WL
3243852, at *3-4 (D.N.J. Nov. 1, 2007) (finding an FBI agent’s decisions to investigate a gang
and use an informant and undercover operation fall within the discretionary function exception).

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Mr. Barbieri also argues that the discretionary function exception does not apply here
because the Amended Complaint falls within an exception noted in Pooler. (Pls.’ Resp., Doc.
No. 18, at 12-13.) There, two plaintiffs brought actions against the United States under the
FTCA, alleging they were falsely arrested as a result of a flawed investigation. 787 F.2d at 869.
The plaintiffs alleged the FBI agent who investigated the case depended on an unreliable
informant and failed to corroborate information provided, and that the charges were not filed in
good faith. Id. The United States Court of Appeals for the Third Circuit found that the FBI
agent’s investigation decisions were discretionary, reasoning that the agent “was placed in
charge of an investigation, and was required to decide how that investigation would be pursued
. . . [which] required consideration of the use and availability of potential informants, and of the
competing uses of personnel who might be needed for surveillance.” Id. at 871. Additionally,
the Third Circuit found the FBI agent’s decision to file complaints with the Pennsylvania
authorities to be a prime example of a discretionary function because “[p]rosecutorial decisions
as to whether, when and against whom to initiate prosecution are quintessential examples of
government discretion.” Id. (quoting Gray, 712 F.2d at 513).
Mr. Barbieri focuses on language in Pooler where the court states that “if the complaint
were that agents of the government in the course of an investigation had violated constitutional
rights or federal statutes, the outcome would be different since federal officials do not possess
discretion to commit such violations.” Id. However, the Supreme Court has since held that
constitutional tort claims are not actionable under the FTCA. F.D.I.C., 510 U.S. at 477-78
(plaintiff’s FTCA claim must be based on a state-law tort claim and cannot be based on a federal
constitutional or statutory claim against the government); see also Lozada v. United States, No.
07-4740, 2008 WL 2152051, at *4 (E.D. Pa. May 21, 2008) (rejecting plaintiff’s argument that

12

the discretionary function exception was inapplicable where constitutional violations had been
alleged because “[c]onstitutional tort claims are not actionable under the FTCA”).
Accordingly, I find that the conduct of which Mr. Barbieri complains satisfies both
prongs of Gaubert and therefore falls within the discretionary function exception to the FTCA.
Therefore, I will grant the United States’ motion. Because I am dismissing Mr. Barbieri’s claims
against the United States, Mrs. Barbieri’s loss of consortium claim must also be dismissed. See
Jensen v. United States, No. 09-2977, 2009 WL 4117357, at *3 (E.D. Pa. Nov. 24, 2009) (stating
that “[u]nder Pennsylvania law, a non-injured spouse may not prevail on a loss of consortium
claim unless the injured spouse prevails on his or her own personal injury claim”) (citing
Barchfield v. Nunley, 577 A.2d 910, 912 (Pa. Super. Ct. 1990)).4
B. The Individual Defendants’ Motion to Dismiss – AUSA Eve
AUSA Eve argues that the Fifth Amendment claims against her should be dismissed
because she is entitled to absolute immunity as a prosecutor. (Mot., Doc. No. 12, at 11-12.) Mr.
Barbieri responds that a prosecutor is not entitled to absolute immunity for administrative or
investigatory actions, and here AUSA Eve “acted in concert with Detective Cosgriff during all
stages of the ‘investigation’ into Mr. Barbieri.” (Pls.’ Resp., Doc. No. 17, at 18-20.)
Prosecutors are entitled to absolute immunity for “actions performed in a quasi-judicial
role.” Kulwicki v. Dawson, 969 F.2d 1454, 1463 (3d Cir. 1992) (internal citations omitted)
(citing Imbler v. Pachtman, 424 U.S. 409, 430 (1976)). This includes actions taken in court as
well as “selected out-of-court behavior ‘intimately associated with the judicial phases’ of
litigation.” Id. (citing Imbler, 424 U.S. at 430). For example, prosecutors are entitled to
immunity for conduct before a Grand Jury. See Burns v. Reed, 500 U.S. 478, 490 (1991).
4

The United States raises other arguments that appear to be meritorious, however, I need not
discuss those matters because the claims are sufficiently barred by the discretionary function
exception to the FTCA.
13

On the other hand, a prosecutor’s investigative or administrative actions are protected
only by qualified immunity. Id. To distinguish between actions intimately associated with the
judicial phase of litigation and actions that are investigative or administrative in nature, courts
apply a “functional approach,” which “looks to the nature of the function performed not the
identity of the actor who performed it.” See Buckley v. Fitzsimmons, 509 U.S. 259, 269 (1993)
(internal citations and quotation marks omitted) (finding that absolute immunity does not attach
where a prosecutor acts in an administrative capacity searching for clues and corroborative
evidence that would lead to probable cause to recommend an arrest); Burns, 500 U.S. at 494-95
(finding that absolute immunity does not attach where a prosecutor offers legal advice to the
police regarding interrogation practices).
Here, the Amended Complaint alleges that AUSA Eve violated Mr. Barbieri’s Fifth
Amendment rights when she (1) sent Mr. Barbieri a deficient target letter with insufficient notice
prior to his indictment, and (2) made misrepresentations during a presentation to the Grand Jury
and “solicited misrepresentations” from Agent Cosgriff. (Am. Compl. ¶ 133.)

Regarding the

deficient target letter, the Supreme Court has found that a target of a Grand Jury investigation
does not have a constitutional right to be informed of his target status.

United States v.

Washington, 431 U.S. 181, 189 (1977) (“Because target witness status neither enlarges nor
diminishes the constitutional protection against compelled self-incrimination, potential-defendant
warnings add nothing of value to protection of Fifth Amendment rights.”); see also United States
v. Myers, 123 F.3d 350, 354 (6th Cir. 1997) (citing Washington in finding that plaintiff had no
constitutional right to a target letter). Thus, there is no Fifth Amendment right to receive a more
detailed target letter.

14

As to the misrepresentations made during a Grand Jury session, presenting to a Grand
Jury is an act undertaken by a prosecutor in preparing for the initiation of judicial proceedings or
for trial, and thus is protected by absolute immunity. See Burns, 500 U.S. at 485 (observing that
in Imbler, the Supreme Court extended absolute immunity to “the knowing use of false
testimony before the grand jury”); Andors v. Gross, 294 F. App’x 731, 734 (3d Cir. 2008)
(finding that prosecutors were protected by absolute immunity for their presentation to the Grand
Jury).
Mr. Barbieri points to Fields v. Wharrie, 740 F.3d 1107 (7th Cir. 2014), and Nero v.
Mosby, Nos. 16-2663, 16-1288, 16-1304, 16-2663, 2017 WL 68643 (D. Md. Jan. 6, 2017), in
support of his position that AUSA Eve is not entitled to absolute immunity. In Fields, the
prosecutor was not entitled to absolute immunity where he was alleged to have procured false
statements from a prospective witness pre-prosecution, which the United States Court of Appeals
for the Seventh Circuit found to be action taken by prosecutors in a “purely investigative role.”
740 F.3d at 1112. In Nero, the prosecutor was not entitled to absolute immunity where he was
alleged to have knowingly provided false advice to a police officer as to the existence of
probable cause, conducted his own investigation independent of the police investigation into the
case, and made comments to the media constituting defamation and invasion of privacy. 2017
WL 68643, at *13-15. The prosecutor was, however, entitled to absolute immunity for allegedly
causing false and misleading evidence to be presented to the Grand Jury. Id. at *14. Here, the
Amended Complaint does not allege that AUSA Eve engaged in any of the conduct for which the
prosecutors in Fields and Nero were not entitled to absolute immunity.

15

Accordingly, I find that there is no Fifth Amendment right to a target letter and that
AUSA Eve is entitled to absolute immunity for Grand Jury presentation. I will therefore dismiss
the Fifth Amendment claims against her.5
C. The Individual Defendants’ Motion to Dismiss –Agent Cosgriff
i. Fifth Amendment Claim
Agent Cosgriff contends that pursuant to Rehberg v. Paulk, 566 U.S. 356 (2012), the
Fifth Amendment claim against him should be dismissed because he is entitled to absolute
immunity as a witness before the Grand Jury. (Mot., Doc. No. 12, at 12-13.) Mr. Barbieri
responds that the facts here are distinguishable from Rehberg because Agent Cosgriff and AUSA
Eve “colluded as one vendetta-fueled investigative unit from the very outset of the investigation
into [Mr. Barbieri], then proceeded to present fabricated evidence and material omissions and
misrepresentations resulting from that investigation to the grand jury.” (Pls.’ Resp., Doc. No. 17,
at 22.)
In Rehberg, the Supreme Court held that Grand Jury witnesses are entitled to the same
immunity as witnesses at trial. 566 U.S. at 369. “This rule may not be circumvented by
claiming that a grand jury witness conspired to present false testimony or by using evidence of
the witness’ testimony to support any other § 1983 claim concerning the initiation or
maintenance of a prosecution.” Id.

5

Although Mr. Barbieri argues in his response that his claims against AUSA Eve are related to
her role in the investigation of his case, he has not pled such in the Amended Complaint. Rather,
he cites AUSA Eve’s sending of the target letter and alleged conduct before the Grand Jury as
the bases for his claims against her. (See Am. Compl. ¶ 133.) Furthermore, even if Mr. Barbieri
pled such, the Supreme Court has found that when a prosecutor “functions as an administrator
rather than as an officer of the court,” she is entitled to qualified immunity. Buckley v.
Fitzsimmons, 509 U.S. 259, 273 (1993) (quoting Imbler v. Pachtman, 424 U.S. 409, 431 n.33
(1976)).
16

Here, the Amended Complaint alleges that Agent Cosgriff violated his Fifth Amendment
rights by “lying and making misrepresentations” during the government’s presentation to the
Grand Jury, which led to Mr. Barbieri’s indictment. (Am. Compl. ¶ 132.) The Amended
Complaint does not contain any facts to substantiate Mr. Barbieri’s argument that AUSA Eve
and Agent Cosgriff “colluded as one vendetta-fueled investigative unit.”

Mr. Barbieri’s

argument that Agent Cosgriff’s testimony should not be protected because it was part of the
“sham investigation” he and AUSA Eve performed fails because as the Supreme Court said in
Rehberg, the rule that Grand Jury witnesses are entitled to immunity cannot be circumvented by
an allegation that the testimony was part of a larger conspiracy. 566 U.S. at 369. Accordingly, I
find that Agent Cosgriff is entitled to absolute immunity for his testimony before the Grand Jury
and will therefore dismiss Mr. Barbieri’s Fifth Amendment claim against Agent Cosgriff.
ii. Fourth Amendment Claim
Finally, Agent Cosgriff argues that Mr. Barbieri’s Fourth Amendment claim regarding
conducting a “sham investigation” should be dismissed because there is no constitutional right to
be free of investigation, and therefore Agent Cosgriff is entitled to qualified immunity. He also
contends that Mr. Barbieri’s Fourth Amendment claim regarding his appearance at Mr.
Barbieri’s office should be dismissed because Mr. Barbieri has failed to allege facts stating a
Fourth Amendment violation. (Mot., Doc. No. 12, at 20-22.) Mr. Barbieri responds that Agent
Cosgriff is not entitled to qualified immunity because Mr. Barbieri’s “rights were clearly
established, as such conduct has been specifically addressed by the Supreme Court in Bivens,
Hartman, and addressed by courts in other cases including Fields and Nero.” Mr. Barbieri does
not specify which rights he believes are clearly established, but again asserts that “Defendant

17

Cosgriff conducted a warrantless and intrusive search of [his] law office.” (Pls.’ Resp., Doc. No.
17, at 22-24.)
Government officials are extended qualified immunity in actions “insofar as their conduct
does not violate clearly established statutory or constitutional rights of which a reasonable person
would have known.”

Messerschmidt v. Millender, 132 S. Ct. 1235, 1244 (2012) (quoting

Pearson v. Callahan, 555 U.S. 223, 231 (2009)). “[W]hether an official protected by qualified
immunity may be held personally liable for an allegedly unlawful official action generally turns
on the ‘objective legal reasonableness’ of the action, assessed in light of the legal rules that were
‘clearly established’ at the time it was taken.” Id. at 1245 (quoting Anderson v. Creighton, 483
U.S. 635, 639 (1987)). A court must engage in a two-part inquiry to determine if qualified
immunity applies: (1) “whether the facts that a plaintiff has alleged or shown make out a
violation of a constitutional right”; and (2) “whether the right at issue was ‘clearly’ established at
the time of defendant’s alleged misconduct.” Pearson, 555 U.S. at 232 (citing Saucier v. Katz,
533 U.S. 194, 201 (2001)).
Mr. Barbieri’s position that Agent Cosgriff is not entitled to qualified immunity because
his rights are “clearly established,” as “such conduct” has been addressed by the Supreme Court
in Bivens and Hartman, and other courts in Fields and Nero, is unavailing. In Hartman v. Moore,
the Supreme Court held that a Bivens suit for retaliatory prosecution brought against a prosecutor
cannot stand because they are absolutely immune, but can stand when brought against a
“nonprosecutor,” like an inspector, who is alleged to have acted in retaliation and successfully
induced the prosecutor to bring charges that would otherwise not have been brought. 547 U.S.
250, 261-62 (2006). But, the Supreme Court did not decide whether “simply conducting a
retaliatory investigation with a view to promote prosecution is a constitutional tort.” Id. at 262

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n.9. The Amended Complaint does not allege any facts to suggest that Agent Cosgriff acted in
retaliation and induced AUSA Eve to prosecute him, thus Hartman is inapplicable here.
Mr. Barbieri’s reliance on Nero is misplaced, as the court in that case addressed a
prosecutor’s absolute immunity and qualified immunity with respect to the right to be free from
arrest without probable cause. 2017 WL 68643, at *13-15. Agent Cosgriff is not a prosecutor
and has not been alleged to have arrested Mr. Barbieri without probable cause. Mr. Barbieri’s
reliance on Fields is similarly inappropriate as that case addressed a prosecutor’s absolute and
qualified immunity. 740 F.3d at 1112. Finally, the Supreme Court did not reach the issue of
immunity in Bivens. 403 U.S. at 388. Mr. Barbieri has not cited to any authority establishing
that the factual allegations pled here constitute an established Fourth Amendment violation.
Rather, regarding the allegation that Agent Cosgriff violated Mr. Barbieri’s Fourth
Amendment rights by conducting a “sham investigation,” three circuit courts have held that there
is no constitutional right to be free of investigation. See Rehberg v. Paulk, 611 F.3d 828, 850
(11th Cir. 2010), aff’d, 566 U.S. 356 (2012) (finding there is no clearly established right to be
free from investigation, even if it is retaliatory); United States v. Trayer, 898 F.2d 805, 808 (D.C.
Cir. 1990) (observing there is no constitutional right to be free of investigation); United States v.
Jacobson, 916 F.2d 467, 469 (8th Cir. 1990), rev’d on other grounds, 503 U.S. 540 (1992)
(holding that a defendant has no constitutional right to be free of investigation). As I agree with
these decisions, I need not proceed to the second step of the qualified immunity analysis.
As to the allegation that Agent Cosgriff violated Mr. Barbieri’s Fourth Amendment rights
by performing a warrantless and intrusive search of his office, the Fourth Amendment establishes
that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against
unreasonable searches and seizures shall not be violated.” U.S. Const. amend. IV. Government

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conduct may constitute a “search” (1) where “the person invoking its protection can claim a
justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by
government action”; or (2) “where the government unlawfully, physically occupies private
property for the purpose of obtaining information.” Free Speech Coal., Inc. v. Attorney Gen. of
U.S., 677 F.3d 519, 543 (3d Cir. 2012) (quoting Smith v. Maryland, 442 U.S. 735, 740 (1979)).
Here, the Amended Complaint alleges that Agent Cosgriff “appeared at Mr. Barbieri’s
office without notice or warrant in violation of [his] Fourth Amendment rights” seventy-two
hours before trial began, and “began interviewing [his] employees.” It also alleges that Agent
Cosgriff “knew or should have known that [he] would be preparing for trial and that documents,
evidence and exhibits would be compromised by the random and unannounced appearance.”
(Am. Compl. ¶¶ 102-03.)
Mr. Barbieri has not cited to any authority establishing that the mere appearance of a
government official at his office or the interviewing of his employees constitutes a Fourth
Amendment violation.

The allegation pertaining to Agent Cosgriff’s knowledge that his

appearance would compromise evidence and exhibits does not state a Fourth Amendment
violation. Accordingly, I need not proceed to the second step of the qualified immunity analysis
and find that Agent Cosgriff is entitled to qualified immunity for the Fourth Amendment claim.6
An appropriate Order follows.

6

AUSA Eve and Agent Cosgriff also argue that I should not extend Bivens liability to this case’s
limited context. (Mot., Doc. No. 12, at 6.) Because I find that both individual Defendants are
entitled to immunity, and thus cannot be personally liable for damages, I need not address the
Bivens issue.
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