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Chun-Yu Zhao v. Eric Holder

September 12, 2012

CHUN-YU ZHAO, PLAINTIFF,
v.
ERIC HOLDER, JR. ET AL., DEFENDANTS.



The opinion of the court was delivered by: Emmet G. Sullivan United States District Judge

MEMORANDUM OPINION

This case is before the Court on defendants' Motion to Dismiss the Amended Complaint. Upon consideration of the motion, the response and reply thereto, the entire record, and for the reasons explained below, defendants' motion is GRANTED.

I.BACKGROUND

Plaintiff is a naturalized United States citizen who previously operated a computer and networking equipment business in Virginia called JDC Networking. Am. Compl. ¶ 2. Defendant Eric Holder, Jr. ("Holder") is the United States Attorney General. Id. ¶ 3. Defendant James Cole ("Cole") is the Deputy Attorney General. Id. ¶ 4. Defendant Lanny Breuer is the Assistant Attorney General for the Criminal Division. Id. ¶ 5.

In July 2012, U.S. Immigration and Customs Enforcement ("ICE") intercepted a package of allegedly counterfeit equipment labels addressed to "Kevin" at the address of a commercial mailbox store where plaintiff rented a mailbox. Am. Compl. ¶ 8. Plaintiff alleges that the package did not bear a specific mailbox number. Id. ICE agents then took the intercepted package to the mailbox store and instructed the staff to call plaintiff to tell her that she had received a package. Id. Plaintiff retrieved the package on July 22, 2010. Id.

When plaintiff arrived at her home, ICE agents including Special Agents Misty Price ("Price") and Julie Hilario ("Hilario") entered her residence, searched her home, and began interrogating her. Am. Compl. ¶ 9. During the course of Zhao's interrogation, Agent Hilario filled out a standard customs consent-to-search form for Zhao's storage unit at EZ Storage in Chantilly, Virginia. Id. ¶ 10. Plaintiff states that the name Chun Zhao is printed on the form and there is a signature below the name. Id. Agents Price and Hilario signed the form as witnesses to the signature. Id.

On July 22, 2012, following the search of her residence and her storage unit, plaintiff was arrested. Am. Compl. ¶ 14. On August 24, 2010, the United States Attorney's Office for the Eastern District of Virginia filed a multiple-count indictment against Zhao for charges relating to the importation and sale of improperly declared and/or counterfeit goods. See id.; United States v. Zhao, No. 10-cr-317 (E.D. Va.).

On September 28, 2010, Zhao filed several motions to suppress, including a motion to suppress the property seized from her storage. Am. Compl. ¶ 15. In the motion, plaintiff argued that she did not consent to the search of the unit and that she did not understand the form because she speaks limited English.. Id.; see United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 36. The government, in its response to plaintiff's motion, attached a copy of the signed form. Am. Compl. ¶ 15.

A hearing was held on plaintiff's motion to suppress on November 8, 2010 before the Honorable Gerald B. Lee. See Compl., Ex. A, ECF No. 1.*fn1 At the hearing, plaintiff's counsel argued that plaintiff signed the form without understanding what it meant but stated several times that plaintiff had signed it. Id. at 102. Notably, plaintiff's counsel did not argue that plaintiff did not sign the form or that her signature had been forged. See id. Agent Price testified that she personally saw Zhao sign the consent-to-search form. Am. Compl. ¶ 10. The Judge denied the motion to suppress and held that plaintiff "sufficiently understood what the documents were when she signed them. She signed them. And it seems to me this was a consent to search her EZ Storage unit." Id. at 107-08.

On March 30, 2011, five months after the motion to suppress was filed, plaintiff's counsel filed a motion to dismiss the indictment alleging "extreme government misconduct." United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 110. In that motion, plaintiff argued that her signature had been forged and she relied upon an analysis of the signature by an independent expert, David Browne, who concluded that "there is very strong evidence that the questioned 'Chun Yu Zhao' signature in the Consent to Search form was not written by Chun Yu Zhao."

On April 20, 2011, Judge Lee denied plaintiff's motion. United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 127. The Judge found that counsel had made several representations at the suppression hearing that his client had signed the document. United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 164 at 79-80. In view of those representations, the Judge declined to revisit his ruling on the motion to suppress and declined to dismiss the indictment. Id.

Following a jury trial, plaintiff was found guilty of sixteen counts related to the importation, sale, and trafficking of counterfeit goods. United States v. Zhao, No. 10-cr-317 (E.D. Va.), ECF No. 293. She was sentenced on September 16, 2011 to sixty months' imprisonment. Id. at 3. The case is currently on appeal. See United States v. Cone, No. 11-4888 (4th Cir.).

In this action, plaintiff seeks damages pursuant to Bivens v. Six Unknown Federal Narcotics Agents, 403 U.S. 388 (1971). Plaintiff argues in this case that the signature on the consent to search her EZ Storage Unit was forged and that government witnesses gave false testimony regarding the form. Am. Compl. ¶ 17.

Plaintiff states that she notified Breuer, through her counsel, of the Browne Report on March 9, 2011. Am. Compl. ΒΆ 18. Plaintiff, through counsel, also offered to make her expert available to the Department of Justice ("DOJ"). Id. Plaintiff does not specify any of the details of these contacts with Breuer or the DOJ and does not specify whether and how she attempted to contact Holder or Cole. The DOJ referred the matter to the U.S. Attorney's Office that had been responsible for plaintiff's case. Id. That office, plaintiff contends, rejected the contents of the Browne report "out-of-hand." Id. Plaintiff ...


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