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