Torina Collis filed suit against the United States of America, the Federal Bureau of Investigation, FBI Special Agent Desiree Skinner Smith and Assistant United States Attorney Gina Simms seeking damages for allegedly false and malicious testimony about her provided by Smith to a grand jury, which resulted in her indictment. Collis alleged that the actions by the various defendants amounted to violations of her Fourth Amendment right to be "free from seizure without probable cause" and her Fifth Amendment Due Process rights.
Collis was employed with mortgage broker WMS, Inc. from December 1996 through December 1999. On April 5, 2000, and again on September 20, 2000, a grand jury issued subpoenas to WMS in furtherance of a mortgage fraud investigation. Assistant Attorney Us Attorney Simms and FBI Special Agent Smith interviewed Collis on March 14, 2001 when she no longer worked for WMS. The notes from this interview were presented to the Court at the March 23, 2007 hearing. Collis informed SA Smith and AUSA Simms that:
Collis was told to audit files, which consisted of purging the files, or throwing out information in the files. For files that were missing information that was supposed to be in them, she was told by [a co-defendant] to make up the documents. Such documents included good faith estimates. She was also told to destroy documents such as pay stubs, W-2's, bank statements and sales contracts (all documents provided by the buyer) by [co-defendant]. She was told to keep the typed application, brokers agreement, handwritten application, credit report, appraisal disclosure, request for transcript of tax form and all the disclosures. [Co-defendant] said they were purging the files because the files were so large and they wanted to thin them. Collis also had some involvement in making loans to buyers. She was told by [codefendant] not to fill out the details of transaction portion of the loan application because one is not supposed to be both the processor and the originator on a loan, however Collis did both.
Over two years later, on May 28, 2003, AUSA Simms presented evidence to a grand jury that included the testimony of SA Smith. Based on the evidence presented, which consisted of SA Smith's testimony as well as the testimony of other witnesses presented to it over the number of occasions on which it met, the grand jury indicted Collis on June 25, 2004. She was subsequently arrested by HUD agents, handcuffed and taken into custody. Collis was scheduled to go to trial on November 30, 2004, but the Government moved to dismiss the indictment and superseding indictment as to Collis on November 24, 2004. The Court approved the request on November 29, 2004.
After dismissal of charges, Collis brought suit against SA Smith and the Assistant United States Attorney seeking damages for presentation of allegedly false and malicious testimony to grand jury. At a March 23, 2007 hearing, the Plaintiff presented to the Court without objection a brief excerpt of the grand jury transcript for May 28, 2003 that was alleged to be false and malicious. The brief excerpt produced for the Court contains the following conversation:
A JUROR: Torina Collis. Did you tell us that she said that the files had been purged or that ...
THE WITNESS: No, she told us herself that they had been purged.
A JUROR: And these were files that were under subpoena?
THE WITNESS: Correct.
A JUROR: Is that--isn't that against the law?
MS. SIMMS: Well, if you want to ask this witness a question, a factual question she can answer.
A JUROR: Well, no, that's okay. I just wanted to make sure they were under subpoena.
THE WITNESS: Mm-hmm.
The Court was not provided with, and the Plaintiff did not presented, either at the hearing or in its papers, any additional testimony by SA Smith. However, it is the above-quoted colloquy, between a grand juror and Smith that formed the basis for Collis' complaint.
The FBI and AUSA moved to dismiss Plaintiff's claim. The District Court granted their motion to dismiss the complaint holding that:
(1) the prosecutor was entitled to absolute immunity;
(2) the target's Fifth Amendment right to due process was not violated by federal agent's testimony before grand jury;
(3) the agent did not violate target's Fourth Amendment rights to be "free from seizure without probable cause" by allegedly presenting "false, malicious testimony" to the grand jury; and
(4) the agent was entitled to absolute immunity.
Collis' complaint was therefore dismissed in totality.
Rachel Dollar, the editor of Mortgage Fraud Blog is an attorney and Certified Mortgage Banker who handles litigation for lending institutions and secondary market investors.