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Finley v. Hersh

United States District Court, Second Circuit

July 7, 2013

Edward Finley, Plaintiff,
John Hersh, Leonard Shapiro, and Ray LaMoria, Defendants.

OPINION AND ORDER (Docs. 8, 16, 23, 28)

J. GARVAN MURTHA, District Judge.

Plaintiff Edward Finley was convicted in 1999 of conspiring and attempting to rob a federally insured credit union. He brings the current action, pro se, against two now-retired FBI agents and a police officer, claiming that false testimony, witness intimidation, and withheld evidence denied him a fair trial. Pending before the Court are Defendants' motions to dismiss and Finley's motion for summary judgment. For the reasons set forth below, the motions to dismiss are GRANTED, the motion for summary judgment is DENIED, and this case is DISMISSED.

Factual Background

In March 1998, Finley was indicted on charges that he conspired and attempted to rob a federally insured credit union, and that he had distributed marijuana. See United States v. Finley, Case No. 1:98-cr-25 (Doc. 11.) In February 1999, a jury convicted him of conspiring to rob a credit union in violation of 18 U.S.C. § 371, and attempting to rob a credit union in violation of 18 U.S.C. § 2113(a). Id . (Doc. 87.) The United States Court of Appeals for the Second Circuit summarized the facts underlying the convictions as follows:

The government's case centered on the testimony of Finley's co-conspirator, Daniel Colomb. He testified that, in late 1997, after he and Finley had participated in several burglaries, Finley suggested that they rob the Vermont Grocer's Credit Union, and they took several preliminary steps to plan the robbery. In addition, in January 1998, they burglarized a local residence and stole some marijuana. Soon thereafter, Colomb was arrested on a shoplifting charge and agreed to cooperate with the police; he wore a recording device during several subsequent meetings with Finley. During one of these meetings, Finley sold two ounces of marijuana to Colomb. Later, during a series of meetings on March 5, 1998 concerning the robbery, defendant told Colomb he "wanted to do the job" but then changed his mind back and forth several times. He brought Colomb to the credit union and drove past it three times. On the final pass, Colomb exited the car wearing a mask and entered the credit union. As Finley moved the car away, a police officer observed him wearing a hood. He was arrested and gave a full confession admitting the robbery was his idea.
Finley testified in his own defense. He claimed, among other things, that the robbery was Colomb's idea; that he never agreed to rob the credit union; that he was unaware of what was going on while the robbery attempt was underway and did not expect Colomb to get out of the car; and that he was not wearing a hood as he pulled away from the credit union.

United States v. Finley, 205 F.3d 1325, 2000 WL 232166, at *1 (2d Cir. Feb. 18, 2000) (unpublished opinion).

On March 15, 1999, Finley's attorney filed a motion to set aside the verdict, arguing (1) that Defendant John Hersh, a now-retired FBI agent, attempted to intimidate Finley's wife, Kimberly Finley, to prevent her from testifying on behalf of her husband; (2) that Hersh had threatened another non-party witness with criminal prosecution if he refused to testify on behalf of the government; and (3) that the evidence against Finley was insufficient. (Doc. 9-1 at 21-31.) This Court denied the motion. In July 1999, Finley was sentenced to 63 months in prison, to be followed by three years of supervised release.

Finley appealed his conviction and sentence, as well as the Court's ruling on the motion to set aside the verdict. The Second Circuit affirmed, and with respect to the motion to set aside the verdict, found that Finley had suffered no prejudice because his wife "actually testified, and [the other non-party witness] did not." Finley, 2000 WL 232166, at *3.

In October 2001, Finley filed a petition for writ of coram nobis, claiming (1) that the government misled the grand jury by presenting perjured testimony, (2) that the court had no jurisdiction over the criminal case because there was no "nexus" between the federal government and the credit union, and (3) ineffective assistance of counsel because his attorney had failed to raise the "jurisdictional" issues. Finley v. United States, Case No. 1:01-cv-306 (Docs. 2, 3.) The Court denied the petition, finding it procedurally defective, untimely, and ultimately without merit. Id . (Doc. 18.)

On July 25, 2006, Finley filed a motion to vacate, set aside or correct sentence pursuant to 28 U.S.C. § 2255. The motion argued, among other things, that in 2006, during an interview with an investigator from the Federal Public Defender's Office ("FPD"), Daniel Colomb revealed that he had urged Finley to commit the robbery after being pressured by Special Agent Hersh. Colomb also alleged that after Finley's trial, the FBI paid him between $1, 000 and $1, 500 for his testimony. Based upon this "newly discovered evidence, " Finley argued that the government had violated his rights when it failed to disclose the FBI's tactics prior to trial. Finley also argued that trial counsel was ineffective for failing to properly investigate the possibility of government pressure on Colomb.

The Court denied the § 2255 motion, finding it both untimely and without merit. As to the merits, the Court reviewed Colomb's trial testimony and concluded that his statements to the investigator in 2006 were not materially different from his testimony at trial with respect to any pressure and/or incentives from the government. Finley appealed the Court's ruling, and the Second Circuit denied the appeal, finding he had failed to show that "jurists of reason would find it debatable whether the district court was correct in its procedural ruling." United States v. Finley, Case No. 1:98-cr-25 (Doc. 172.)

Finley now seeks relief under 42 U.S.C. § 1983, as well as various tort theories, claiming that "the Government failed to provide me with a fair trial by fabricating evidence and withholding exculpatory evidence." (Doc. 4 at 1.) Specifically, he claims Special Agent Hersh committed perjury before the grand jury and at trial, withheld evidence from the prosecutor, and intimidated the prosecution's key witness. The two other Defendants, Special Agent Shapiro[1] and Rutland police officer LaMoria, were allegedly aware of Hersh's conduct and failed to disclose it. All Defendants have moved to dismiss on various grounds, including timeliness and failure to state a claim. Finley has responded with a motion for summary judgment.


I. Motion to Dismiss Standards

Defendants' motions to dismiss are submitted pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6). Under Federal Rule of Civil Procedure Rule 12(b)(1), a claim may be dismissed for lack of subject matter jurisdiction. Makarova v. United States , 201 F.3d 110, 113 (2d Cir. 2000) ("A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it."). In reviewing a motion to dismiss under Rule 12(b)(1), the Court must accept as true all material factual allegations in the Complaint, but is not required to draw all reasonable inferences in the plaintiff's favor. See J.S. v. Attica Cent. Schs. , 386 F.3d 107, 110 (2d Cir. 2004). Rather, a plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that subject matter exists.

In deciding a Rule 12(b)(6) motion to dismiss, the Court applies a "plausibility standard, " which is guided by "[t]wo working principles." Ashcroft v. Iqbal , 556 U.S. 662, 678 (2009); accord Harris v. Mills , 572 F.3d 66, 71-72 (2d Cir. 2009). First, the Court must again accept all allegations in a plaintiff's complaint as true, although this "tenet" is inapplicable to legal conclusions, and "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Iqbal , 556 U.S. at 678; accord Harris , 572 F.3d at 72. Second, only complaints that state a "plausible claim for relief" can survive a Rule 12(b)(6) motion to dismiss. Iqbal , 556 U.S. at 679. Determining whether a complaint does so is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Id .; accord Harris , 572 F.3d at 72.

II. Defendant LaMoria's Motion to Dismiss

The first motion before the Court is that of Officer LaMoria. (Doc. 8.) The sole allegation against LaMoria is that he "was aware of the Hersh crime and did nothing to stop it, or expose it at trial." (Doc. 4 at 3.) LaMoria argues that the Complaint, which contains virtually no underlying factual information about Finley's criminal case or Hersh's alleged misconduct, is conclusory and thus subject to dismissal. LaMoria also contends that the Complaint is untimely, ...

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