Kenneth Rijock

Kenneth Rijock

Friday, November 4, 2016

GOVERNMENT STATES RICHARD CHICHAKLI'S CIVIL SUIT AGAINST US ATTORNEY AND ASSISTANT SHOULD BE DISMISSED

Richard Chichakli

After a delay, and the filing of an Amended Complaint, convicted OFAC sanctions violator (and reputed money launderer, for Viktor Bout) Richard Ammar Chichakli's civil suit is moving forward once again. Chichakli is currently serving a 5-year sentence, and is incarcerated at FMC Devins, in Massachusetts, with a presumptive release date of June 6, 2017.

The defendants, Manhattan US Attorney Preet Bharara, and his assistant, trial attorney Christian Everdell, face claims for $100,000 in damages, and for injunctive relief. While a defendant in the criminal case, Chichakli obtained an order from the trial judge, requiring that any original documents, that had been seized at the defendant's US residence years earlier, be turned over to him. Chichali claimed that he needed those documents to:

(A) Obtain needed medical care.
(B) Discuss a tax filing, resulting from an alleged theft.
(C) Produce citizenship documents, which were necessary to participate in Bureau of Prisons re-entry programs, while in custody.

He has alleged that he was denied those documents, by the defendants.

In response, in a letter to the Court, written by an Assistant US Attorney in Bharara's office, the Government advices that it does not have a large number of originals, and that it will retain those items, until all of Chichakli's appellate remedies are exhausted. his petition for rehearing of the Second Circuit affirmation of his conviction was denied on August 6, 2016, so I compute the 90-day period, to file a Certiorari petition with the US Supreme Court, as expiring on on about November 4, 2016. The Government states that it will return the documents, in its possession, that conform to Chichakli's request, and the court order, irrespective of the outcome of this case.

On the merits, the Government advises that it intends to  move to dismiss the complaint for lack of subject matter jurisdiction, asserting that, since the defendants are sued in their official capacities, the suit is barred by the Doctrine of Sovereign Immunity*.

Additionally, the Government contends that Chichakli's allegations of the violation of his First and Fourth Amendment rights do not confer jurisdiction, because sovereign immunity is not waived for Constitutional tort claims against Federal officers, in their Federal capacities.

The objective view of this case is that it will probably be dismissed for lack of subject matter jurisdiction, after  the Government files its motion. The government's efforts to hold a pre-motion conference demonstrate its wish to dispose of the case early on, perhaps by an order sua sponte, from the Court. The case is styled Chichakli vs. Bharara et al, 15 Civ. 4583 (SD NY). 
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* The United States, as sovereign, is immune from suit, unless it consents to be sued, or the claims fall within an applicable waiver, which is not present in this case. 

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