The opinion of the court was delivered by: Urbina, District Judge.
MEMORANDUM OPINION GRANTING THE DEFENDANTS' MOTION TO
This case comes before the court on the defendants' motion to
dismiss. The plaintiffs, Desiree Carone-Ferdinand and Thomas
Ferdinand, seek $38 million from the Central Intelligence Agency
("CIA") and the United States Army (collectively the "Federal
Defendants"), Robert Fuentes, Oliver North, and James Robert
Strauss for alleged theft of insurance policies, bank accounts,
and other property. The plaintiffs claim that the defendants
knowingly diverted the personal property of Albert V. Carone,
Desiree Carone-Ferdinand's father, for their own or other
persons' use through, inter alia, fraud, larceny, and
embezzlement. Specifically, the plaintiffs claim that the
defendants took these steps to cover up Mr. Carone's
participation in government-sanctioned illegal activity. For the
reasons that follow, the court holds that the plaintiffs' claims
are fictitious. Thus, the court will dismiss the complaint for
lack of subject-matter jurisdiction pursuant to Federal Rule of
Civil Procedure 12(b)(1).
The plaintiffs' allegations encompass events spanning the last
60 years, and involve organized crime families, two previous
Directors of Central Intelligence ("DCI"), and three former
United States Presidents. The plaintiffs claim that 10 years
ago, the federal government killed Ms. Carone-Ferdinand's father
and stole the property at issue in this lawsuit to cover up Mr.
Carone's role in various government covert operations.
The plaintiffs paint a colorful portrait of Mr. Carone's past.
According to the plaintiffs, Mr. Carone had a very diverse
resume that included stints, as, at various times, a "made"
member of the Genovese Crime Family, a detective in the New York
Police Department ("NYPD"), a Colonel in the U.S. Army Military
Intelligence-Counter Intelligence Corps, and a CIA operative.
See Compl. at 2-17.
As recounted in the complaint, the events leading up to the
CIA's alleged misappropriation of the plaintiffs' property began
during World War II. See id. At that time, a young go-getter
and "charismatic patriot" named Albert Carone was working as an
officer in the Office of Strategic Services (the predecessor to
the CIA) when he was introduced to Mr. William Colby and Mr.
William Casey, both of whom would go on to serve as DCI. See
Decl. of William J. Casey ("Casey Decl.") at 1-2. Duly impressed
with Mr. Carone's charisma and patriotism, as well as his dual
status as a member of the Genovese Crime family and an NYPD
detective, the CIA allegedly recruited Mr. Carone to act as a
liaison between the CIA and "certain Chinese and Italian
businessmen in New York City." See Decl. of Albert V. Carone
("Carone Decl.") at 1.
The plaintiffs claim that for the next 40-odd years, Mr.
Carone helped import cocaine into the United States on direct
orders from the CIA. The profits from the cocaine sales were
then laundered through organized crime operations, and were
ultimately funneled to CIA-sanctioned, covert, anti-communist
activities. One of the largest shipments that Mr. Carone
allegedly facilitated was the importation of more than one
million pounds of cocaine between 1976 and 1981. See Casey
Decl. at 1-2. This cocaine was allegedly brought into the United
States by way of Mena, Arkansas, population 5,475. See Casey
Decl. at 2. Though one might think that the importation of more
than $40 billion worth of cocaine into one municipal airport
over a five-year period would arouse suspicion, law enforcement
was kept at bay through the efforts of one William Jefferson
Clinton. See Casey Decl. at 2. At the time in question, Mr.
Clinton was the Attorney General of the State of Arkansas.
The complaint also indicates that Mr. Carone's duties were not
only limited to drug trafficking. In one memorable assignment,
Mr. Carone was ordered to assassinate President John F. Kennedy.
See Supp. Aff. of Thomas E. Ferdinand ("Ferdinand Supp. Aff.")
at 2. While Mr. Carone managed to situate himself on the roof of
the "Dallas Airport," he was unable to complete his mission
because other people accompanying the president were standing in
the line of fire. See id.
After Mr. Carone's death, Ms. Carone-Ferdinand was named
executrix of Mr. Carone's estate. See Compl. at 2. The
plaintiffs claim that they transmitted several life insurance
policies, proof of joint ownership of several bank accounts,
proceeds from the sale of a coin collection, and access to
several storage units containing Mr. Carone's personal property
to defendant Robert Fuentes, an attorney operating out of Rio
Rancho, New Mexico. See Compl. at 14. According to the
plaintiffs, shortly after they transferred the property to Mr.
Fuentes, defendant James Robert Strauss, on orders from the CIA,
approached defendant Fuentes, who then surrendered Mr. Carone's
estate in exchange for a monetary reward. See id.
The plaintiffs claim that in 1996 they located a William M.
Tyree, who verified much of Mr. Carone's story. See Ferdinand
Supp. Aff. at 2. Additionally, after further inquiry, the
plaintiffs allege that they were able to determine that the
named defendants stole Mr. Carone's estate to cover up his role
in the Iran-Contra affair and other classified operations. See
Compl. at 16.
On February 29, 2000, the plaintiffs filed a six-count
complaint alleging, inter alia, larceny, conversion of Mr.
Carone's estate, and constitutional violations. The complaint
also stated a claim of negligence against defendant Fuentes.
The defendants attack the complaint on a wide array of
substantive and procedural grounds. The defendants move to
dismiss the complaint under Federal Rule of Civil Procedure
12(b)(1) for lack of subject-matter jurisdiction, under
Rule 12(b)(6) for failure to state a claim upon which relief can be
granted, under Rule 9(b) for failing to aver fraud with
particularity, and under Rule 8(a) for failure to contain a
short and plain statement of jurisdiction. In addition, the
federal defendants argue that the plaintiffs' tort claims are
barred by various provisions of the Federal Tort Claims Act,
sovereign immunity, failure to exhaust administrative ...