Supreme Court of the United States

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1 No. ================================================================ In The Supreme Court of the United States WILLIAM GIL PERENGUEZ, v. Petitioner, UNITED STATES OF AMERICA, Respondent On Petition For A Writ Of Certiorari To The United States Court Of Appeals For The Eleventh Circuit PETITION FOR WRIT OF CERTIORARI RICHARD J. DIAZ F.B.N Ponce de León Blvd. Coral Gables, FL Telephone: (305) Facsimile: (305) rick@rjdpa.com ================================================================ COCKLE LAW BRIEF PRINTING CO. (800) OR CALL COLLECT (402)

2 i QUESTION PRESENTED Whether Title 28 U.S.C. 2680(k), also known as the foreign country exception of the Federal Tort Claims Act applies where the United States of America mistakenly indicts an individual who is arrested in and extradited from a foreign country and while pretrial detained and awaiting trial in the United States, is prejudiced by his prosecutor s deliberate failure to act upon evidence of the mistake in identity and the individual s actual innocence.

3 ii PARTIES TO THE PROCEEDINGS The parties to the proceedings in the Eleventh Circuit Court of Appeals include the United States of America and the Petitioner. There are no parties to the proceedings other than those named in the petition.

4 iii TABLE OF CONTENTS Page Question Presented... i Parties to the Proceedings... ii Table of Contents... iii Table of Authorities... v Opinion and Order Below... 1 Basis for Jurisdiction in This Court... 1 Constitutional and Statutory Provisions Involved... 1 A. Federal Constitutional Provision... 1 B. Statutory Provision... 2 Basis for Federal Jurisdiction in the Court of First Instance... 2 Statement of the Case... 2 Reason for Granting the Writ... 3 Conclusion... 4 Index of Appendices Judgment filed on October 11, 2011 in the United States Court of Appeals for the Eleventh Circuit affirming the order of dismissal of Petitioner s Federal Tort Claims Act complaint entered by the United States District Court for the Southern District of Florida... App. 1

5 iv TABLE OF CONTENTS Continued Page Order filed on March 3, 2011 in the United States District Court for the Southern District of Florida granting the United States of America s motion to dismiss Petitioner s Federal Tort Claims Act complaint... App. 5

6 CASE: v TABLE OF AUTHORITIES Page Sosa v. Alvarez-Machain, et al., 542 U.S. 692 (2004)... 3 CONSTITUTION: U.S. Const. amend. IV... 1 STATUTES: 28 U.S.C. 1254(1) U.S.C. 1346(b) U.S.C. 2680(k)... 2, 3

7 1 OPINION AND ORDER BELOW Judgment filed on October 11, 2011 in the United States Court of Appeals for the Eleventh Circuit affirming the order of dismissal of Petitioner s Federal Tort Claims Act complaint entered by the United States District Court for the Southern District of Florida. Order filed on March 3, 2011 in the United States District Court for the Southern District of Florida granting the United States of America s motion to dismiss Petitioner s Federal Tort Claims Act complaint BASIS FOR JURISDICTION IN THIS COURT Petitioner seeks review of the judgment of the Eleventh Circuit Court of Appeals entered on October 11, 2011 affirming the order of the United States District Court for the Southern District of Florida. Petitioner invokes this Court s jurisdiction under 28 U.S.C. 1254(1) CONSTITUTIONAL AND STATUTORY PROVISIONS INVOLVED A. Federal Constitutional Provision The Fourth Amendment of the United States Constitution provides, in pertinent part: The right of the people to be secure in their persons, houses,

8 2 papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. B. Statutory Provision 28 U.S.C. 2680(k) says, The provisions of this chapter and section 1346(b) of this title shall not apply to any claim arising in a foreign country BASIS FOR FEDERAL JURISDICTION IN THE COURT OF FIRST INSTANCE The basis for federal jurisdiction in the court of first instance was pursuant to 28 U.S.C. 1346(b) STATEMENT OF THE CASE William Gil Perenguez ( Gil Perenguez ), a Colombian national residing in Cali, Colombia, went by the nickname of Willy. He was indicted in the Southern District of Florida by mistake when he was misidentified with another individual who also used the nickname Willy who was the person for whom probable cause to indict actually existed. Gil Perenguez was arrested in Colombia, extradited to Miami, Florida and pretrial detained. Shortly thereafter, the

9 3 lead defendant in the conspiracy himself having been arrested in Colombia and extradited to the United States told the assigned prosecutor that she had indicted the wrong Willy. For about six months, the prosecutor ignored this exculpatory evidence of Gil Perenguez actual innocence until the eve of trial, when she had no choice but to dismiss Gil Perenguez from the indictment. Gil Perenguez was released and removed back to Colombia. He then timely sued the United States of America ( USA ) under the Federal Tort Claims Act ( FTCA ). On March 31, 2011, the Court entered an order dismissing the Gil Perenguez complaint under 28 U.S.C. 2680(k) the foreign country exception to the FTCA holding that any wrong(s) that Gil Perenguez suffered occurred outside the United States and thus there was no subject matter jurisdiction under the FTCA REASON FOR GRANTING THE WRIT There is a compelling reason for a writ of certiorari in this case. The Eleventh Circuit Court of Appeals decision departs too far from this Court s ruling in Sosa v. Alvarez-Machain, et al., 542 U.S. 692 (2004) where all of the harm to the Petitioner occurred outside of the United States. Gil Perenguez suffered two wrongs in the United States. First, his wrongful indictment occurred inside the United States. Second, he was physically in the United States when

10 4 his prosecutor failed to immediately act on exculpatory evidence of his actual innocence and allowed him to sit in pretrial detention for about six unnecessary months thereafter. Collaterally, the practical effect of the Eleventh Circuit s opinion is that it immunizes the United States of America from a claim under the FTCA when either the United States indicts a United States citizen by a mistake in identity, or, deliberately ignores exculpatory evidence actual innocence resulting in unwarranted imprisonment for an innocent accused CONCLUSION For the foregoing reasons, Petitioner requests that the Court grant certiorari. Respectfully submitted, RICHARD J. DIAZ F.B.N Ponce de León Blvd. Coral Gables, FL Telephone: (305) Facsimile: (305) rick@rjdpa.com

11 App. 1 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT No Non-Argument Calendar D.C. Docket No. 1:10-cv MGC WILLIAM HUMBERTO GIL-PERENGUEZ, Plaintiff-Appellant, versus UNITED STATES OF AMERICA, by and through U.S. Attorney General, Defendant-Appellee Appeal from the United States District Court for the Southern District of Florida (Filed Oct. 11, 2011) Before WILSON, PRYOR and BLACK, Circuit Judges. PER CURIAM: William Gil-Perenguez appeals the dismissal of his complaint for lack of subject matter jurisdiction based on sovereign immunity. Gil argues that the district court erred when it ruled that his complaint

12 App. 2 falls within the foreign country exception to the waiver of sovereign immunity under the Federal Tort Claims Act, 28 U.S.C. 2680(k). We affirm. I. BACKGROUND In June 2006, the Drug Enforcement Agency and Colombian National Police jointly investigated a conspiracy to import cocaine and heroin from Colombia on cargo planes landing at the Miami, Florida, International Airport. Gil worked at the airport in Colombia from which the drugs were being shipped to the United States. The Colombian police erroneously identified Gil as a member of the conspiracy and communicated that erroneous information to the Agency. A federal grand jury later returned an indictment against Gil on several charges of importation of drugs. Colombian police arrested Gil and detained him in a Colombian prison for more than a year after which he was transported to the United States to stand trial. After a status conference, the district court ordered the United States to examine recordings of drug conspirators in which Gil erroneously had been identified as a participant. The United States determined that Gil s voice was not on the recordings, moved to dismiss the indictment against him, and returned him to Colombia. Gil filed a complaint against the United States under the Federal Tort Claims Act. Gil s complaint alleged that he had been wrongfully indicted, arrested, and detained. His complaint sought $10 million in

13 App. 3 damages for injuries that he suffered in Colombia, including the loss of his job, damage to his reputation, and emotional distress. The district court granted the motion of the United States to dismiss Gil s complaint. The district court ruled that the foreign country exception to the waiver of sovereign immunity under the Federal Tort Claims Act barred Gil s complaint, which concerned an investigation, arrest, and detention by Colombian police. The district court did not reach the alternative grounds of the motion filed by the United States. II. STANDARD OF REVIEW We review a dismissal based on lack of subject matter jurisdiction de novo. Barbour v. Haley, 471 F.3d 1222, 1225 (11th Cir. 2006). III. DISCUSSION The district court correctly ruled that it lacked subject matter jurisdiction over Gil s complaint. The Federal Tort Claims Act waives immunity to suit except for [a]ny claim arising in a foreign country. 28 U.S.C. 2680(k). This exception covers all claims based on any injury suffered in a foreign country, regardless of where the tortious act or omission occurred. Sosa v. Alvarez-Machain, 542 U.S. 692, 712, 124 S. Ct. 2739, 2754 (2004). Gil s complaint arises out of an arrest in Colombia, which is where the last act necessary to establish liability occurred. Id. at

14 App , 124 S. Ct. at 2750 (internal quotation marks omitted). Gil s complaint plainly falls within the foreign country exception to the waiver of sovereign immunity under the Act. IV. CONCLUSION We affirm the dismissal of Gil s complaint for lack of subject matter jurisdiction. AFFIRMED.

15 App. 5 UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No CIV-COOKE/BANDSTRA WILLIAM GIL-PERENGUEZ, Plaintiff vs. UNITED STATES OF AMERICA, Defendant. / ORDER GRANTING DEFENDANT S MOTION TO DISMISS (Filed Mar. 31, 2011) THIS CASE is before me on the United States of America s (the Government ) Motion to Dismiss. (ECF No. 12). I have reviewed the record, the arguments and the relevant legal authorities. For the reasons explained below, the Government s Motion to Dismiss is granted.

16 App. 6 BACKGROUND 1 In or about June 2006, the Drug Enforcement Agency ( DEA ) and Immigration and Customs Enforcement agents stationed in Miami, Florida, along with the Direccion Antinarcotics Heroin Group of the Colombian National Police (the CNP ) began investigating a drug trafficking scheme whereby Columbian nationals were importing cocaine and heroin into the Miami International Airport through cargo planes arriving from Columbia. The CNP headed the investigation in Columbia. As part of the cooperative agreement between the DEA and the CNP, the Columbian courts authorized a wiretap in an effort to further facilitate the investigation. The CNP recorded several phone calls between two individuals who went by the names of Niency and Willy who discussed the specifics of using the cargo planes to traffic drugs from Cali, Columbia to Miami, Florida. At the time of the investigation, Plaintiff worked for a cargo company that loaded flights from Cali, Columbia to the Miami International Airport. CNP 1 The pertinent facts giving rise to Plaintiff s cause of action occurred in Columbia. These facts also form the basis for criminal case United States v. Gil-Perenguez, et al., Case No DLG. According, the facts of this section are taken from the criminal record in Case No , the Government s Motion to Dismiss (ECF No. 12) and Plaintiff s Response to the Government s Motion to Dismiss (ECF No. 22). Where possible, this Court incorporates any and all relevant facts from Plaintiff s Complaint, accepts them as true, and resolves them in the light most favorable to Plaintiff. See Beck v. Deloitte & Touche, 144 F.3d 732, 735 (11th Cir. 1988).

17 App. 7 agents determined Plaintiff to be the Willy on the recorded calls. CNP investigators relayed this information to DEA agents located in Columbia and Miami, Florida. Based on the CNP s investigative conclusion, the Government indicted Plaintiff on June 22, 2007, and charged him with several counts of importing controlled substances into the United States in violation of 21 U.S.C. 963, 952(a) and 853. On August 9, 2007, the Government executed a Provisional Arrest Warrant and arrested Plaintiff in Palmira, Columbia with the assistance of the CNP and Bogota, Columbia DEA agents. Plaintiff was then transferred to a Columbian prison located in Boyacá, Columbia where he remained incarcerated for one year. On or about September 2, 2008, Plaintiff was extradited to the United States and detained at the Federal Detention Center in Miami, Florida, pending trial. Throughout the entirety of Plaintiff s incarceration, Plaintiff maintained that he was not the accused Willy and that his voice was not the recorded voice on the recorded phone calls. At the February 6, 2009 trial status conference, Plaintiff s counsel expressed his concern regarding Plaintiff s wrongful prosecution. United States District Court Judge Donald Graham authorized the parties to hire a voice identification expert to determine whether Plaintiff s voice was indeed the voice on the recorded phone calls. On or about February 24, 2009, the Government was informed that Plaintiff s [sic] was not the accused Willy as originally assumed.

18 App. 8 On February 27, 2009, the Government dismissed the indictment against Plaintiff and transported him back to Columbia. LEGAL STANDARD A district Court is powerless to hear a matter where subject matter jurisdiction is lacking. Bochese v. Town of Ponce Inlet, 405 F.3d 964, (11th Cir. 2005). A plaintiff bears the burden of establishing subject matter jurisdiction. Sweet Pea Marine, Ltd. v. APJ Marine, Inc., 411 F.3d 1242, 1248 n. 2 (11th Cir. 2005). A defendant bringing a motion to dismiss under Fed. R. Civ. P. 12(b)(1) may assert a facial attack to jurisdiction whereupon the court will look to the complaint to determine whether the plaintiff has sufficiently alleged subject matter jurisdiction. Lawrence v. Dumbar [sic], 919 F.2d 1525, 1528 (11th Cir. 1990). On a facial attack, a plaintiff is afforded safeguards similar to those provided in opposing a Rule 12(b)(6) motion the court must consider the allegations of the complaint to be true. Id. at DISCUSSION On May 10, 2010, Plaintiff filed a six-count Complaint against the Government seeking damages based upon the Federal Tort Claims Act ( FTCA ), 28 U.S.C. 1346(b). The FTCA enables a plaintiff to recover for injuries sustained as the result of the Government s wrongful or negligent conduct. Newmann v. United Statres [sic], 938 F.2d 1258, 1261 n. 2 (11th

19 App. 9 Cir. 1991). Plaintiff alleges that he was indicted, arrested and detained without probable cause and that the Government had a duty to conduct a minimal investigation to ensure Plaintiff was the individual guilty of the crime charged. The Government argues that Plaintiff s claims should be dismissed because the Court lacks subject matter jurisdiction. Federal courts have exclusive jurisdiction over FTCA claims. 28 U.S.C. 1346(b). An FTCA claim is decided under the law of the place in which the wrongful or negligent conduct occurred rather than the place where the conduct had its operative effect. See Soso v. Alvarez-Machain, 542 U.S. 692, 700 (2004). Pursuant to 28 U.S.C. 2680(k), a court cannot exercise of [sic] jurisdiction over [a]ny claim arising in a foreign country. 28 U.S.C. 2680(k). Plaintiff s FTCA claims are premised on the CNP investigations that lead [sic] to Plaintiff s arrest in Columbia. Accordingly, this Court does not have subject matter jurisdiction to consider this complaint. CONCLUSION For the foregoing reasons, it is ORDERED and ADJUDGED that the Government s Motion to Dismiss (ECF No. 12) is GRANTED. Plaintiffs Complaint (ECF No. 1) is DISMISSED with prejudice. The Clerk is directed to CLOSE this case. All pending motions, if any, are DENIED as moot.

20 App. 10 DONE and ORDERED in chambers at Miami, Florida this 31st day of March Copies furnished to: Counsel of Record /s/ Marcia G. Cooke MARCIA G. COOKE United States District Judge