O'Ferrell v. United States

Robert Wayne O'FERRELL, Mary Anne O'Ferrell, Plaintiffs-Appellants,
v.
UNITED STATES of America, Defendant-Appellee.
No. 99-6071.
United States Court of Appeals,
Eleventh Circuit.
June 11, 2001.
Appeal from the United States District Court for the Middle District of Alabama. (No. 92-01450-CV-A-S),
W. Albritton, III, Chief Judge.
Before BARKETT and HULL, Circuit Judges, and POLLAK*, District Judge.
POLLAK, District Judge:
Plaintiffs Robert Wayne O'Ferrell and Mary Anne Martin (formerly Mary Anne O'Ferrell)1 appeal
from the District Court's grant of summary judgment dismissing a portion of their lawsuit, and from the
District Court's subsequent dismissal of the balance of the lawsuit after a bench trial. The lawsuit was based
on actions taken by federal law enforcement agents in 1990 when the plaintiffs were targets of a massive
investigation of a group of mail bombings and attempted mail bombings that took place in December of 1989.
Tragically, two of the mail bombs hit their targets. On December 16, 1989, a mail bomb was received
at the home of Robert S. Vance and Helen Rainey Vance in Mountain Brook, Alabama. The bomb killed
Judge Vance—an eminent and revered member of this court—and severely injured Mrs. Vance. On
December 18 a mail bomb killed Robert E. Robinson, a prominent Savannah attorney. On the same day a
mail bomb arrived at this court's Atlanta courthouse; but, fortunately, the bomb was intercepted by federal
law enforcement agents. On the next day, December 19, a mail bomb was received at the Jacksonville office
of the National Association for the Advancement of Colored People ("NAACP"); happily, this bomb was
also intercepted and detonated. Concurrently, several members of this court received typed death threats:
"JUDGE: AMERICANS FOR A COMPETENT FEDERAL JUDICIAL SYSTEM SHALL ASSASSINATE
*
Honorable. Louis H. Pollak, U.S. District Court for the Eastern District of Pennsylvania, sitting by
designation.
1
In 1989 and 1990, when the events giving rise to this litigation occurred, the plaintiffs were married;
subsequently, they were divorced. In this opinion, the term "the O'Ferrells" is used in reference to events
that transpired in 1989 and 1990. The former Ms. O'Ferrell is identified as "Ms. Martin" in those portions
of the opinion which refer to later events.
YOU BECAUSE OF THE FEDERAL COURTS' CALLOUSED DISREGARD FOR THE
ADMINISTRATION OF JUSTICE. 010187."
I. The Investigation and the Resultant Search Warrants
A. The Initial Phase.
The FBI at once launched a widespread investigation. A central element of the investigation was
intensive analysis of the typed bomb-package labels and the typed death-threat letters (collectively referred
to by the District Court as "the bomber documents") that commenced in late December of 1989, almost
immediately after the tragic events narrated above. Principal responsibility for this aspect of the FBI's
investigation of the murders and death-threats rested with Special Agent William Bodziak, a certified
document examiner who had been attached to the document section of the FBI laboratory in Washington for
many years. On close scrutiny of the labels and the letters, Agent Bodziak's first significant observation was
that all the typed documents displayed a uniform horizontal spacing of the typewritten characters of 2.35
millimeters. A spacing of 2.35 millimeters was an identifying element of a particular line of typewriters
produced by Brothers Industries, a Japanese typewriter manufacturer. Drawing upon a customary laboratory
reference—the FBI typewriter standards file—Agent Bodziak determined that, with one outstanding
exception, several observable features of the typewritten characters were commonly associated with a
particular model Brothers Industries manual typewriter. The outstanding exception was an unusual
numeral—a number one—unusual in that, projecting horizontally from the top of the vertical shaft, there was
a very minute flag-shaped appendage. Agent Bodziak telephoned a Brothers Industries representative who
informed Agent Bodziak that the number one he described had not been a feature of any Brothers Industries
typewriter. So advised, Agent Bodziak concluded that the unusual numeral was a so-called "replacement
character"—a character that becomes part of a typewriter's character array when a damaged striking lever is
replaced and the replacement lever has a letter or number of a font unlike the font of the typewriter as
manufactured.
In fact, the information supplied to Agent Bodziak by a Brothers Industries representative in
December of 1989 (and reaffirmed in a subsequent conversation with a Brothers Industries representative in
April of 1990) was inaccurate. The unusual number one was actually a regular element of a limited run of
Brothers Industries typewriters manufactured in 1961 and 1962.2 In all likelihood Agent Bodziak would have
learned this in December of 1989 or January of 1990 had he, in addition to reviewing the FBI typewriter
standards file, consulted certain other reference works available to those working in the FBI laboratory—most
especially the Haas Atlas—but he did not do so.
Having concluded that the unusual number one was a replacement character, specially installed in
a particular typewriter in substitution for a defective striking lever, Agent Bodziak reasoned that there was
probably only a single Brothers Industries typewriter that had that deviant number one. A next step in tracing
the suspect typewriter (and thereby its owner) was to try to determine whether, prior to the bombings, the
suspect typewriter had been used to produce court documents in litigation before Judge Vance or other
members of this court. To aid FBI field agents in sifting through hundreds, or perhaps thousands, of court
documents, Agent Bodziak prepared a guide that identified several indicative typeface characteristics,
including the unusual number one, that appeared in the bomb-package labels and the death-threat letters that
he had examined.
B. The O'Ferrells Become Targets of the Investigation.
Agent Bodziak's guidance to the field bore fruit. In the course of the afternoon and evening of
January 19, 1990, three agents arrived at the FBI laboratory and delivered five apparently pertinent
documents (two agents had two documents apiece, and the third agent had one) to Agent Bodziak. The five
documents (collectively referred to by the District Court as "the O'Ferrell documents") had been filed in
different offices in connection with O'Ferrell v. Gulf Life Ins. Co., 874 F.2d 819 (11 Cir.1989), a case
involving Robert O'Ferrell (the principal plaintiff in the case at bar) that had turned out unhappily for Mr.
O'Ferrell. (O'Ferrell v. Gulf Life Ins. Co. was a case in which Mr. O'Ferrell pursued a pro se appeal to this
court from an adverse judgment of the United States District Court for the Middle District of Alabama; the
panel of this court to which the case was assigned—a panel of which Judge Vance was the senior
member—dismissed the appeal on April 17, 1989). Three of the five documents were copies of notices of
appeal (two original copies and one photocopy); the other two documents were envelopes for notices of
appeal.
Agent Bodziak's examination of the five documents delivered on January 19 led him to conclude that
2
Agent Bodziak did not learn this until he visited the Brothers Industries plant in Japan in the fall of
1990.
they were typed on the same typewriter that had generated the bomb-package labels and the death-threat
letters. Agent Bodziak noted a number of indicative common characteristics, but the crucial feature—the sine
qua non of his confident conclusion—was the unusual number one, which appeared in both sets of documents
and which, believing it to reflect the replacement of a single damaged striking lever on a particular typewriter,
Agent Bodziak felt to be dispositive.
In the early morning hours of January 20, Agent Bodziak presented his findings to a hurriedly
convened meeting of the FBI headquarters group in overall charge of the investigation. Later that morning,
Special Agent Stephen Brannan, the agent in charge of the Birmingham portion of the investigation, was
informed by his Washington superiors that the FBI laboratory had determined that there was a match between
the typed bomb-package labels and death-threat letters and the typed O'Ferrell v. Gulf Life Ins. Co. appeal
papers. Utilizing this information, Agent Brannan at once prepared an affidavit in support of an application
to Magistrate Judge John Carroll for search warrants authorizing searches of plaintiffs' home, salvage business
and other areas under their control.3 Magistrate Judge Carroll issued search warrants on January 20, and these
were followed by others.
C. Searches and Interrogations.
Searches of the O'Ferrells' home and business by FBI agents commenced on January 22, 1990. The
tragic bombings having been national news, the searches attracted substantial media attention. FBI agents
supplemented the searches with several interrogations of the O'Ferrells.
Apart from the asserted match of the typewritten documents, the FBI's investigation of the O'Ferrells
appears to have generated no inculpatory information. On October 9, 1990, the O'Ferrells were advised that
they were no longer targets of the investigation.
Subsequently, Walter Leroy Moody was arrested and charged with the bombings, and was ultimately
convicted.
3
Agent Brannan's affidavit contained the following recital:
On January 19, 1990, the FBI laboratory determined that the envelope postmarked
"Dothan, Alabama 363 PM 17 Aug 1988" addressed to the United States District Court
Middle District of Alabama and the two notices of appeal, dated July 13, 1988, and
signed by Robert Wayne O'Ferrell, were prepared on the same typewriter that was used to
prepare the labels on the package bombs sent to Judge Vance, Robert Robinson, the
Clerk's Office of the 11th Circuit Court of Appeals, and the NAACP Regional Office in
Jacksonville, Florida, and it was also used to prepare the December threat letters sent to
the judges of the 11th Circuit Court of Appeals.
II. Proceedings in the District Court
Believing that they had been mistreated in a variety of ways by federal law enforcement officials, the
O'Ferrells, in November of 1992, filed a pro se complaint in the District Court for the Middle District of
Alabama. The plaintiffs concurrently petitioned for leave to proceed in forma pauperis, which was granted.
In February of 1993 the District Court appointed counsel to represent the plaintiffs. (In 1995, retained
counsel entered an appearance and, thereafter, appointed counsel were permitted to withdraw). In April of
1993, two months after the appointment of counsel, an amended complaint was filed.
The amended complaint was brought against the United States and a group of unidentified "fictitious"
defendants designated as defendants A to Z.
The causes of action asserted directly against the United States were of two kinds. One was a
contract claim, in which the O'Ferrells alleged that the United States had offered a $500,000 reward for
information leading to the apprehension of the bomber(s), and that Mary Ann O'Ferrell had supplied such
information about the actual culprit, Walter Leroy Moody, but that the promised reward had not been
forthcoming. The other causes of action asserted directly against the United States were several sets of claims
arising under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. §§ 2671-2680—the statute which, by waiving
the sovereign immunity of the United States, imposes tort liability on the United States in circumstances in
which, under the law of the relevant state or territory, a private person would be liable; the tort liability of
the United States is, however, narrowly limited, Congress having exempted from liability any claims under
several specified headings—e.g., (and of particular importance in the case at bar) "libel," "slander," 28 U.S.C.
§ 2680(h), "detention of any goods or merchandise by any officer of customs or excise or any other
law-enforcement officer," 28 U.S.C. § 2680(c), and any claims "based upon the exercise or performance or
the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an
employee of the Government, whether or not the discretion involved be abused." 28 U.S.C. § 2680(a). One
set of the O'Ferrells' FTCA claims charged that federal agents had fed to the media quantities of inculpatory
information, much of it false. Other sets of claims charged that federal officials had, in the course of the
investigation, (1) closed the plaintiffs' salvage business for several days; (2) trespassed—pursuant to search
warrants said to be invalid—on plaintiffs' business and residential premises; (3) seized religious items from
plaintiffs' residence when conducting the allegedly unlawful search; (4) threatened plaintiffs, with a view
to inducing confessions; and (5) monitored a private telephone conversation between the plaintiffs. Further,
plaintiffs charged that the United States had failed properly to supervise the conduct of its law enforcement
agents.
The claims nominally directed against the numerous "fictitious" law enforcement agents were "Bivens
" claims—i.e., damage actions brought pursuant to Bivens v. Six Unknown Agents, 403 U.S. 388, 91 S.Ct.
1999, 29 L.Ed.2d 619 (1971), alleging unconstitutional conduct by federal officials and seeking to impose
liability on the defendant officials.
A. The Summary Judgment Rulings.
Following the filing of the amended complaint, the government filed a motion to dismiss, or, in the
alternative, for summary judgment. The parties filed numerous additional pleadings, supplemented by
evidentiary submissions, both before and after plaintiffs' appointed counsel were replaced by present counsel.
On June 26, 1997, the District Court ruled on the government's motion, treating it as a motion for summary
judgment. O'Ferrell v. United States, 968 F.Supp. 1519 (M.D.Ala.1997). The District Court, after a careful
analysis of the plaintiffs' claims, stated its dispositive rulings.
The District Court's first ruling was to direct that the plaintiffs' Bivens claims, which by hypothesis
could only be pursued against individual law enforcement agents for their allegedly unconstitutional actions,
be "DISMISSED to the extent that they may be asserted against the United States, for lack of subject matter
jurisdiction." 968 F.Supp. at 1542. However, the District Court noted that, in a separate order, it was
authorizing further amendment of the amended complaint to include a Bivens claim against Agent Brannan,
thereby substituting an actual defendant for the A to Z "fictitious" defendants.
The District Court then addressed the balance of plaintiffs' claims:
... [T]his court does not have jurisdiction over several of the Plaintiffs' claims. The breach of contract
claim relating to the reward must be filed in the United States Court of Federal Claims, rather than
in this court. The claims based on use of the media, interference with business, negligent and/or
wanton supervision, inappropriate statements, fraud and the telephone call are claims from which the
United States is immune on the basis of sovereign immunity, because of specific exceptions in the
Federal Tort Claims Act.4
4
Of this group of dispositions, plaintiffs have only appealed the dismissal of (1) the "claims based on
use of the media" (misinformation allegedly leaked to the media by FBI agents and other officials placing
Mr. O'Ferrell in the false light of culpability), and (2) the "claims based on ... inappropriate statements"
(alleged threats to the O'Ferrells by FBI agents). On the authority of Metz v. United States, 788 F.2d 1528(11th Cir.1986), cert. denied, 479 U.S. 930, 107 S.Ct. 400, 93 L.Ed.2d 353 (1986), the media claims were
held barred by the FTCA's exception from liability of claims "arising out of ... libel [or] slander" 28
U.S.C. § 2680(h). The alleged "inappropriate statements" were held not actionable as falling within the
FTCA's "discretionary function," 28 U.S.C. § 2680(a) exception. Appellants' challenges to these rulings
are addressed infra at parts IV(A)(1) and (2) of this opinion.
The claims against the United States which survive the Motion for Summary Judgment and on which
the Plaintiffs will be allowed to proceed are those for outrageous conduct, and negligence based on
trespass on the Plaintiffs' business premises and home, invasion of privacy based on trespass on the
Plaintiffs' home, and those for invasion of privacy, conversion, outrageous conduct, and negligence
relating to the seizure of religious items. These claims may proceed because the Plaintiffs have
established that a genuine issue of fact exists as to whether the search warrants were obtained by
intentionally or recklessly presenting false affidavits to the issuing magistrate judge as evidence of
probable cause. Our constitution does not permit such conduct by our government and a violation
of this constitutional guarantee may give rise to state law claims against the United States.
968 F.Supp. at 1542-43.
B. The Bench Trial Rulings.
The District Court subsequently conducted a bench trial of plaintiffs' remaining FTCA claims. On
November 24, 1998, the District Court entered judgment in favor of the United States on all counts. See
O'Ferrell v. United States, 32 F.Supp.2d 1293 (M.D.Ala.1998).
At the bench trial, plaintiffs contended that the challenged search warrants issued at the request of
the FBI in January of 1990 did not fall within the FTCA's discretionary exception because the supporting
affidavit was constitutionally flawed. Specifically plaintiffs contended that Special Agent Stephen Brannan's
affidavit, on the basis of which Magistrate Judge Carroll issued the search warrants, contained intentionally
or recklessly false information. The District Court rejected plaintiff's contention. The District Court was not
persuaded that Agent Brannan's submission, based on Agent Bodziak's finding of a typewriter match, was
false. Plaintiffs, the District Court found, had "not carried their burden of proving that the typewriter which
the Plaintiffs used to create their Notice of Appeal in O'Ferrell v. Gulf Life Ins. Co. was different from the
typewriter which the bomber used to create the bomb labels and threatening letters." 32 F.Supp.2d at 1301.
Indeed, the District Court went further, finding that "there was, in fact, a match, that the O'Ferrell documents
and the bomber documents were typed on the same typewriter. Accordingly, the court finds that the Plaintiffs
have not established that the statements in the Brannan affidavit were false." Id. at 1302. Alternatively, the
District Court found no evidence that Agent Bodziak had acted recklessly in failing to consult sources other
than the FBI typewriter standards file and the representative from Brother Industries. See id. at 1303. For
both of these reasons, the Bodziak finding set forth in the Brannan affidavit was found by the District Court
not to have been recklessly false.
With respect to the asserted detention and conversion of plaintiffs' property, the District Court noted
that 28 U.S.C. § 2680(c) precludes FTCA liability with respect to "[a]ny claim arising in respect of ... the
detention of any goods or merchandise by any officer of customs or excise or any other law-enforcement
officer." 28 U.S.C. § 2680(c) (West 2000). The District Court relied on this court's opinion in Schlaebitz v.
United States, 924 F.2d 193, 195 (11th Cir.1991), holding that suits "based on the detention of goods by law
enforcement officers in the performance of their lawful duties" are barred by the FTCA.
On appeal, plaintiffs contend that the District Court erroneously granted summary judgment in favor
of the United States based on the plaintiffs' tort claims relating to (1) the government's alleged leakage to the
media of misrepresentations implicating Mr. O'Ferrell in the mail bombings, and (2) threats allegedly made
by government agents to the O'Ferrells. Plaintiffs also appeal the District Court's bench trial determinations
that (1) probable cause existed for the issuance of the search warrants, and (2) 28 U.S.C. § 2680(c) barred the
plaintiffs' claims of conversion and detention of property seized by the government in the execution of search
warrants.
III. Standard of Review
This court reviews a grant of summary judgment de novo, applying the same standard as the district
court. See McCaleb v. A.O. Smith Corp., 200 F.3d 747, 750 (11th Cir.2000). To prevail on a summary
judgment motion, the moving party carries the initial burden of demonstrating to the court that no genuine
issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265(1986). Once the moving party has satisfied that burden, the burden shifts to the nonmoving party to present
evidence that there is indeed a genuine issue for trial. See id. at 324, 106 S.Ct. 2548. All inferences must be
drawn in favor of the nonmoving party. See United States v. Diebold, Inc., 369 U.S. 654, 655, 82 S.Ct. 993,
8 L.Ed.2d 176 (1962).
A district court's bench trial findings of fact are reviewed to determine whether they are clearly
erroneous. See United States v. Cancela, 812 F.2d 1340 (11th Cir.1987). Conclusions of law are reviewed
de novo. See Florida Ass'n of Rehab. Facilities, Inc. v. State of Florida Dept. of Health and Rehabilitative
Servs., 225 F.3d 1208, 1216 (11th Cir.2000).
IV. Discussion
We turn now to the issues presented by Mr. O'Ferrell and Ms. Martin on this appeal. Appellants
make four contentions, two addressed to the District Court's rulings on summary judgment and two addressed
to the District Court's rulings at the conclusion of the bench trial. We will begin with the two contested
summary judgment rulings.
A. Summary Judgment.
1. The Alleged Release of Misinformation to the Media.
On appeal, as in the District Court, Mr. O'Ferrell and Ms. Martin complain of the release to the
public, and in particular to the media, of greatly disparaging defamatory statements; appellants contend that
hearing and reading those statements caused them great anguish. As noted above (footnote 5, supra), the
District Court concluded that the claim was barred by the provision of the FTCA which recites that the Act
"shall not apply to ... [a]ny claim arising out of ... libel, slander ..." 28 U.S.C. § 2680(h). In support of its
ruling the District Court cited this court's decision in Metz v. United States, 788 F.2d 1528 (11th Cir.1986),
cert. denied, 479 U.S. 930, 107 S.Ct. 400, 93 L.Ed.2d 353 (1986). In Metz, plaintiff's claim was that federal
law enforcement agents had committed the state law torts of intentional infliction of emotional distress and
intrusion upon privacy. This court held in Metz that the plaintiff's claims were barred because (1) they were
derivative from plaintiff's underlying contention that he had been the victim of false arrest, and (2) "false
arrest" is one of the tort claims barred by 28 U.S.C. § 2680(h). In the case at bar, Mr. O'Ferrell and Ms.
Martin have acknowledged, in their brief on appeal, "that the public statements were false and defamatory,
and that the statements were certainly published to third parties," but they contend that "the principles
enunciated in Metz do not apply because they claim damage flowing directly to them in the form of mental
anguish as a result of their personally hearing and reading the false statements. In other words, although their
false light invasion of privacy arguably falls in the realm of a claim of damage for injury to reputation, their
negligence, negligent supervision, and tort of outrage claims do not." Appellants' Brief at 24. We think,
however, that Metz is fully applicable to appellants' claims. In Metz we said that the exceptions in the FTCA
are not limited to the torts specifically named therein, but rather encompass situations where "the underlying
governmental conduct which constitutes an excepted cause of action is essential to plaintiff's claim." Metz,
788 F.2d at 1534. The principles there announced govern the case at bar.
2. Alleged Threatening Statements of Government Agents.
Mr. O'Ferrell and Ms. Martin contend that the District Court erred in granting summary judgment
with respect to their claim that FBI agents made illegal threats in the course of interrogation. Appellants state
that they were threatened with "the electric chair" if they did not confess. First Amended Complaint at ¶ 20.
Further, FBI agents are said to have told Mr. O'Ferrell that at one point he was "in the sights of their high
powered rifles." Appellants' Brief at 24. As noted above (footnote 5, supra), the District Court concluded
that this claim was barred by 28 U.S.C. § 2680(a) which precludes "[a]ny claim ... based upon the exercise
or performance or the failure to exercise or perform a discretionary function or duty on the part of ... an
employee of the government, whether or not the discretion involved be abused." Determining whether
challenged government conduct is protected by the discretionary exception of § 2680(a) requires a court to
address two questions. First, a court must look to the nature of the challenged conduct and decide whether
the conduct "violated a mandatory regulation or policy that allowed no judgment or choice." Autery v. United
States, 992 F.2d 1523, 1526 (11th Cir.1993). The discretionary function exception will not apply "if a federal
statute, regulation, or policy specifically prescribes a course of action for an employee to follow." United
States v. Gaubert, 499 U.S. 315, 322, 111 S.Ct. 1267, 113 L.Ed.2d 335 (1991). Second, if the court
determines that no "statute, regulation or policy specifically prescribes a course of action," the court must then
consider whether the challenged conduct "is of the kind that the discretionary function exception was
designed to shield." Id. at 322-23, 111 S.Ct. 1267. The purpose of the exception is 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." Id. at 323, 111 S.Ct. 1267.
With respect to the first question, Mr. O'Ferrell and Ms. Martin argue that the interrogation
techniques used by the agents did "violate[] a mandatory regulation or policy that allowed no judgment or
choice." Autery, 992 F.2d at 1526. Appellants note that the FBI manual prohibits "physical abuse or the
threat of such abuse." FBI Manual at ¶ 7-2.1. But appellants have not alleged "physical abuse or the threat
of such abuse." They contend that they were told they faced "the electric chair." However minatory such a
statement would be, it would constitute not a threat of present physical abuse but a prophecy of what might
befall appellants in the future if they failed to confess and were ultimately convicted. Nor was the alleged
statement that agents had had Mr. O'Ferrell in the sights of their high-powered rifles a threat of present
physical abuse; it was a recital of something that had assertedly happened in the past.
We turn, then, to the second question. Bearing in mind that the alleged statements did not produce
a confession, we think the District Court's rejection of appellants' claim was correct. Just how law
enforcement agents are to conduct interrogations would appear to be a paradigmatic example of a
discretionary function. The process is one that involves elements of judgment and choice—the central
ingredients of discretion. If, in the case at bar, FBI agents did in fact predict death in the electric chair if Mr.
O'Ferrell failed to confess, such conduct would certainly constitute an indefensibly gross abuse of their
discretion; but the FTCA expressly exempts the United States from liability for acts which constitute abuse
of discretion.
B. The Bench Trial.
We turn now to appellants' two challenges to the rulings made by the District Court at the close of
the bench trial.
1. The Validity of the Search Warrants.
In challenging the validity of the search warrants issued by Magistrate Judge Carroll at Agent
Brannan's behest, appellants have undertaken to show that the search warrants fail the test laid down by the
Supreme Court in Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). Under Franks,
if an affidavit submitted to a judicial officer in support of a request for a search warrant contains "a false
statement [made] knowingly and intentionally, or with reckless disregard for the truth," and if, stripped of that
false statement, the affidavit does not establish probable cause, "the search warrant must be voided...." Id.
at 155-56, 98 S.Ct. 2674. In short, to prevail in a Franks challenge one must establish (1) that information
contained in an affidavit was untrue, (2) that inclusion of the untrue information was either deliberate or in
"reckless disregard for the truth," and (3) that the untrue information was an essential element of the probable
cause showing relied upon by the judicial officer in issuing the search warrant. Appellants contend here, as
they did in the District Court, that the representation made by Agent Brannan to Magistrate Judge Carroll of
a match between the "O'Ferrell documents" and the "bomber documents"—i.e., that the appeal notices and
envelopes in O'Ferrell v. Gulf Life Ins. Co. were, in the words of the Brannan affidavit, "prepared on the same
typewriter that was used to prepare" the bomb-package labels and the death-threat letters—was not true, and
that the representation was not only untrue but recklessly so. Establishing these two propositions would
suffice to undermine the search warrants, for it is manifest that, absent a link between the two sets of typed
documents, the FBI would not have had probable cause to search appellants' premises.
We will first consider the alleged falsity of the representation that the same typewriter typed the
"O'Ferrell documents" and the "bomber documents." Next, assuming arguendo the falsity of the
representation, we will consider whether the inclusion of that representation in the affidavit was "in reckless
disregard for the truth."
a. The Alleged Falsity of the Affidavit.
Agent Brannan's statement in his affidavit that the FBI laboratory had determined that the two sets
of documents "were prepared on the same typewriter" was unquestionably correct: The FBI laboratory, in
the person of Agent Bodziak, had made exactly that determination; Agent Brannan had been so informed;
and his affidavit recited the information given to him. Appellants' challenge is, then, directed to Agent
Bodziak's representation of a typewriter match. That representation, appellants contend, was erroneous and
was demonstrably so. The representation, appellants point out, concededly rested on Agent Bodziak's
conclusion that the unusual number one was a replacement character unique to a particular Brothers Industries
manual typewriter, whereas—as Agent Bodziak subsequently learned and has since acknowledged—Brothers
Industries in 1961 and 1962 in fact manufactured perhaps as many as ten thousand typewriters containing the
unusual number one.
The District Court, in its careful bench opinion, addressed the alleged falsity of Agent Bodziak's
representation of a typewriter match as follows:
The Plaintiffs base their assertion of a false statement on Special Agent Bodziak's belief in
January 1990 that the unusual numeral one in the two sets of documents was a replacement character.
Because Mr. Bodziak subsequently discovered that the unusual numeral one had been original
equipment on a limited number of typewriters, the Plaintiffs claim that he was mistaken in
determining that there was a match between the two sets of documents. At numerous points in his
testimony, however, Mr. Bodziak maintained that he still believes the bomber documents and the
O'Ferrell documents came from the same typewriter. Thus, the court has heard evidence from a
certified documents examiner that the documents in question matched, based on reasons detailed in
his testimony.
As reasons for maintaining the validity of the match, Mr. Bodziak mentioned the limited
number of typewriters manufactured with the unusual numeral one; the significant time lapse
between 1962 when the manufacturer ceased making these typewriters and the late 1980's when the
O'Ferrell documents and the bomber documents were typed; the poor quality of that vintage
typewriter and the lessened likelihood that those typewriters could survive for such a time period;
the fact that FBI agents screened tens of thousands of documents from various parts of the country
and never located other Brother style typewritten documents which contained the unusual numeral
one; and other similarities between the documents pertaining to the letters A, J, P, R, and S, and the
numerals three and four.
To prove that the statement in the Brannan affidavit was false, the Plaintiffs must do more
than show that the original basis for Special Agent Bodziak's determination of a match was incorrect.
They must prove that the conclusion itself was incorrect. The statement that the FBI lab determined
a match was true. Therefore, it is not sufficient to prove that that determination was recklessly made;
it first must be proved that the determination itself was false, that there was not a match between the
O'Ferrell documents and the bomber documents. Only then would the issue of whether the
determination was recklessly made become relevant.
The Plaintiffs have asserted that there were some variations between certain characteristics
in the documents. Mr. Bodziak explained, however, that such variations are expected with old
manual typewriters, especially when there has been a time lapse such as the 16-month period between
the creation of the O'Ferrell documents and the bomber documents.
The Plaintiffs produced no credible affirmative evidence refuting Mr. Bodziak's conclusions.
[]Plaintiffs were given complete access to the questioned documents for the purpose of having them
examined by experts. They have produced no one who disagreed with the opinion of the FBI's
certified document examiner that there was a match. The court finds from the evidence that there
was, in fact, a match, that the O'Ferrell documents and the bomber documents were typed on the same
typewriter. Accordingly, this court finds that the Plaintiffs have not established that the statements
in the Brannan affidavit were false.
O'Ferrell, 32 F.Supp.2d at 1301-02.
In undertaking to show that the District Court erred in finding that the "O'Ferrell documents" and
the "bomber documents" were typed on the same typewriter, appellants contend that the testimony of Agent
Bodziak5, on which the District Court placed heavy reliance, was not worthy of belief. Noting that Agent
Bodziak acknowledged that his January 19, 1990 finding of a match between the two sets of documents was
flawed, since it depended on a subsidiary finding, concededly erroneous, that the unusual number one was
a uniquely identifying characteristic of a particular Brothers Industries typewriter, appellants contend that the
portions of the Bodziak testimony in which the witness tried to show that, notwithstanding his January 19,
1990 mistake, there was a match, are internally inconsistent and lacking in any claim to credibility.
Having reviewed Agent Bodziak's uncontradicted testimony,6 we disagree. We think the testimony
provides reasoned support for the District Court's finding that the two sets of typed documents matched. We
believe it appropriate to set out, in a footnote, an extended excerpt from the Bodziak testimony which, in our
judgment, adequately conveys the gist of the entire testimony and to which, in our judgment, the District
Court was entitled to give credence.7 In sum, we think the District Court's finding of a match—and hence
5
The testimony in question is deposition testimony. Agent Bodziak was not presented as a live
witness before the District Court.
6
The District Court noted that one affidavit of record did appear to contradict Agent Bodziak's
testimony, but the District Court went on to characterize the affidavit, assuming its admissibility, as itself
undermined by the affiant's subsequent deposition:
There was some testimony concerning an affidavit of a typewriter repairman, John
Phillips, expressing an opinion that the documents derived from different typewriters. In
light of Mr. Phillips' deposition, however, where he completely contradicts his earlier
statements and testifies that the documents could have been typed on the same typewriter,
the court finds Mr. Phillips' earlier statements, even if they were admissible, to be
unworthy of credence.
O'Ferrell, 32 F.Supp.2d at 1302, n. 2. The District Court's assessment of the Phillips affidavit
seems to us sound.
7
This excerpt is taken from Agent Bodziak's deposition testimony, pages 196—199:
Q. Based on the fact that you learned in late 1990 that the numeral one was manufactured
and designed with that Brother typewriter, in other words, it was original character on
that typewriter, what is the main character that you base your opinion upon that there is
an identical match between the documents in question?
A. It's still the numeral one.
of the accuracy of the Brannan affidavit—was supported by substantial evidence. A fortiori, the District
Court's further finding that appellants had not shown by a preponderance of the evidence that there was not
a match was not clearly erroneous.
b. The Alleged Recklessness of Agent Bodziak's Representation.
Assuming arguendo the falsity of Agent Bodziak's representation of a match, we will consider
whether the representation was made "in reckless disregard for the truth." The District Court found that
plaintiffs did not fulfill this second prong of their burden—showing that a false statement was made
Q. It's still the numeral one?
A. Because of the relative few that were sold and made that were of the 1961—early '62
vintage that no longer had been used again; because of the poor quality of the typewriter
of that vintage and its lack or likely lack of survival to still be in existence in many places
that still have that numeral in it from whatever number there were; and the fact that we
had during that time—during the initiation of the case all the way to the point in time to
which you're referring to in November of 1990 when we actually found out that this was
intentionally manufactured on the typewriter for a short period of time that we had during
that time in numerous places screened tens of thousands of documents and had never
come across any other Brother style typewriters with that one and had only come across a
handful of other Brother style typewriters that had the replacement one, the one that
started in 1961 and that were manufactured in much larger production for a long number
of years, nevertheless we only found a few of those.
So that was still an extremely rare and unique characteristic, even though it wouldn't have
been as unique as if it had been replaced as I had originally thought on January—excuse
me—December—excuse me—January 19, 1990.
Q. You indicated reviewing thousands of documents. You're referring to court filings?
A. Court filings, Justice Department records, bureau records, field office records.
Q. Pertaining—okay. Other than—When you talk about the court filings, you're referring to
agents in the field reviewing court cases that have been filed by people in courts in the
southeast?
A. Court cases. Well, court cases, anonymous letters that are mailed in cases throughout the
country; letters which are mailed to the department of Justice in various categories were
being looked at.
Q. Such as threatening type letters, that sort of thing?
A. Threatening, civil rights type letters. I wasn't in charge of that. I don't know. But I know
there were task forces of people looking at this, and it also included searching libraries,
schools, government facilities. It even extended to finding typewriters along the side of
the road in dumpsters, typewriters that people said in response to that newspaper article
that they thought they might have had one and they sold it to someone or they still had
one, come look at it.
Just virtually every typewriter over all those months that we could get a sample of or get
a look at, whether it was operable or not.
"knowingly and intentionally, or with reckless disregard for the truth." Franks, 438 U.S. at 155-56, 98 S.Ct.
2674. To make such a showing required appellants to show that Agent Bodziak's finding that the numeral
one was a replacement character was recklessly made.
Agent Bodziak made his finding based on three sources: (1) The horizontal spacing of the type, (2)
the FBI standards file, and (3) a conversation with Brother Industries representatives. There was one book
in the FBI's library that might have alerted Agent Bodziak to the correct typewriter model, the Haas Atlas.
Agent Bodziak did not consult this source. The District Court found that his failure to consult the Haas Atlas
was not reckless, and we agree. The District Court found that Agent Bodziak believed the FBI typewriter
standards file to be "the most comprehensive collection of typewriter standards available to a document
examiner." 32 F.Supp.2d at 1303. That Agent Bodziak may have been in error in this assessment might
arguably betoken negligence, but we agree with the District Court that it does not betoken recklessness. In
short, appellants have not shown that Agent Bodziak's representation that the same typewriter was used to
type the O'Ferrell appeal documents and the bomber documents was recklessly made.
2. Conversion and Detention of Property.
Mr. O'Ferrell and Ms. Martin claim that some of their personal property was not returned to them
even after it was determined that the property was of no evidentiary value in the mail bombing investigation.
But their attempt to attribute liability to the government for this detention is foreclosed by our decision in
Schlaebitz. We there held that the government had immunity from claims of conversion and detention of
personal property under 28 U.S.C. § 2680(c). Section 2680(c) exempts from FTCA liability "[a]ny claim
arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods,
merchandise, or other property by an officer of customs or excise or any other law-enforcement officer." We
held, in Schlaebitz, that "any other law-enforcement officer" is not limited to officials assisting the customs
or tax collection, but includes "officers in other agencies performing their proper duties." Schlaebitz, 924
F.2d at 194. This interpretation of the statute immunizes the United States from liability for detaining the
O'Ferrells' personal property.
V. Conclusion
From January of 1990 to October of 1990, appellants were targets of an intensive federal
investigation which sought to determine their culpability with respect to an horrendous group of crimes. In
the event, appellants were cleared. But there can be little doubt that, during the months in which they were
prime suspects and every phase of their life together was subjected to unremitting scrutiny and routine
disruption, the stresses appellants weathered were massive. However, as the District Court determined in two
thoughtfully crafted opinions and as we agree with respect to the issues presented to us on this appeal, those
stresses did not constitute legally cognizable harm. Accordingly, the orders of the District Court granting
summary judgment in favor of the United States on the bulk of appellants' claims and, after a bench trial,
dismissing appellants' remaining claims are AFFIRMED.8
8
Even as we sustain the rulings rejecting appellants' claims against the United States, we are
constrained to note that in one respect the current official attitude of the United States towards the
appellants—persons who apparently were innocently enmeshed in tragic events that took place many
years ago—is rather more dismissive than seems appropriate. We have in mind the fact that, a decade
after the events that gave rise to this lawsuit, the United States had still not seen fit to return to appellants
certain items of property taken from them in the course of the searches of appellants' premises. When, in
the course of oral argument, we inquired why this was so, we were informed by counsel for the United
States that "there may be reasons for law enforcement to retain items, for some period of time, after a
seizure." What those reasons might be—a decade later—it is somewhat difficult to conjecture.