David Ganek v. David Leibowitz, et al.

In this Bivens action, plaintiff David Ganek, a co‐founding

partner of investment fund Level Global Investors (“LG”), sues the

named agents of the Federal Bureau of Investigation (“FBI”) and

federal prosecutors in the United States Attorney’s Office for the

Southern District of New York (“SDNY”) for alleged violations of

his Fourth and Fifth Amendment rights in procuring and executing

a federal search warrant at LG’s Manhattan offices on November 22,

2010. See Bivens v. Six Unknown Named Agents of Fed. Bureau of

Narcotics, 403 U.S. 388 (1971). Defendants now appeal from an order

of the United States District Court for the Southern District of New

York (William H. Pauley III, Judge), denying their motion for

qualified immunity and, therefore, for dismissal of the entirety of

Ganek’s complaint. See Ganek v. Leibowitz, 167 F. Supp. 3d 623

(S.D.N.Y. 2016). Our jurisdiction to review this ruling under 28

U.S.C. § 1291 is undisputed. See Mitchell v. Forsyth, 472 U.S. 511, 530

(1985) (holding that denial of qualified immunity, “to the extent that

it turns on an issue of law, is an appealable ‘final decision’ within

the meaning of 28 U.S.C. § 1291”); accord Ashcroft v. Iqbal, 556 U.S.

4

662, 672 (2009). For the reasons stated in this opinion, we conclude

that defendants are entitled to qualified immunity and, accordingly,

we reverse the district court’s challenged order and direct the

dismissal of all Ganek’s outstanding claims.

BACKGROUND

I. The LG Search

The following facts are drawn from Ganek’s complaint and

must be credited on this appeal.

A. Sam Adondakis Admits Receiving and

Communicating Inside Information to Persons at LG

David Ganek and Anthony Chiasson co‐founded investment

fund LG, with Ganek serving as LG’s principal partner until the

fund’s closure in 2011. In 2010, LG’s offices were located on the 27th

floor of 888 Seventh Avenue in Manhattan, and the fund had

approximately $4 billion under management.

From 2006 until 2010, Spyridon “Sam” Adondakis was

employed by LG as a research analyst, with a particular focus on the

technology industry. Adondakis was asked to leave LG in May 2010

when it was determined that he had violated the fund’s internal

compliance protocols.

On October 14, 2010, FBI defendants Hinkle and Makol

confronted Adondakis with wiretap evidence collected from third

parties, which implicated Adondakis in insider trading while at LG.

Sometime thereafter, Adondakis agreed to cooperate with

government authorities and, on November 2, 2010, he met with

defendants Assistant United States Attorneys (“AUSAs”) Brodsky

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and Leibowitz as well as FBI defendants Hinkle, Makol, and Komar.

At that meeting, Adondakis admitted to having knowingly received

sensitive, non‐public information from various insiders and to

having passed on that information to persons at LG, including

Ganek, Chiasson, and another LG employee, Greg Brenner.1 All

three persons referenced by Adondakis in fact used the information

conveyed to them to make trading decisions. But whereas

Adondakis told defendants that he specifically advised Chiasson

and Brenner that the information conveyed came from an inside

source, Adondakis “never” said he so advised Ganek. J.A. 36, ¶ 86.

To the contrary, Adondakis told defendants that “he had never told

Mr. Ganek the source of the information he provided.” Id.

(emphasis in original).

B. The LG Search Warrant

On November 21, 2010, FBI defendant Trask applied to an

SDNY Magistrate Judge for a warrant to search certain areas within

LG, including Ganek’s, Chiasson’s, and Brenner’s offices; desktop

and laptop computers used by Adondakis while employed at LG;

and LG’s investors’ servers. In support, Trask submitted a signed

affidavit that contains the alleged misrepresentation at the heart of

this case, i.e., that “ADONDAKIS informed GANEK . . . of the

sources of the Inside Information” provided to him. J.A. 98, ¶ 13.c;

1 While defendants have redacted Brenner’s name from their filings in

this case, referring only to a “Third Person,” the complaint identifies that third

person as Brenner. See J.A. 48, ¶ 143.

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see id. at 99, ¶ 13.e (same).2 Trask professed to have obtained this

information from FBI colleagues.

The magistrate judge authorized the requested search

warrant, which was executed at LG the following day, November

22, 2010. In the course of doing so, FBI agents and/or SDNY AUSAs

searched Ganek’s office, files, and electronic devices, and made an

electronic copy of the contents of his personal cellphone.

Defendants provided advance notice of the LG search to the Wall

Street Journal, which took and published photographs of FBI agents

carrying boxes out of LG.

C. Defendants’ Post‐Search Assurances

Ganek feared that media reports about the LG search and

attending federal investigation into insider trading would prompt

2 We here place the misstatement in the two contexts where it appears in

the Trask affidavit:

During his work as an analyst at [LG], ADONDAKIS obtained

Inside Information from insiders at public companies . . .[,]

provided this Inside Information to DAVID GANEK, ANTHONY

CHIASSON, and [Third Person], and GANEK, CHIASSON, and

[Third Person] executed and caused others to execute certain

securities transactions based, in part, on the Inside Information,

and . . . ADONDAKIS informed GANEK, CHIASSON, and [Third

Person] of the sources of the Inside Information.”

J.A. 98, ¶ 13.c (emphasis added).

During his work as an analyst at [LG], ADONDAKIS spoke with

and provided Inside Information to GANEK, CHIASSON, and

[Third Person], and informed GANEK, CHIASSON, and [Third

Person] regarding the sources of the Inside Information.

Id. at 99, ¶ 13.e (emphasis added).

7

LG investors to divest from the fund. Accordingly, on December 20,

2010, LG representatives met with AUSA defendants Zabel and

Leibowitz, in the course of which meeting defendants stated that the

LG search “had been carefully considered at the highest levels, with

full appreciation for the likely commercial consequences, and . . .

that all necessary precautions had been taken.” J.A. 41, ¶ 110. Some

months later, on February 4, 2011, an LG attorney contacted

defendant U.S. Attorney Bharara to ask that he publicly clarify that

“Mr. Ganek was not a target of the investigation or that the search

warrant did not allege probable cause that Mr. Ganek had engaged

in insider trading.” Id. at 43–44, ¶ 121. Bharara declined, asserting

that his office had not pursued the LG search “without thinking

through the consequences of doing so.” Id. at 44, ¶ 123.

D. Reiteration of the Misrepresentation and Further

Adondakis Interview

At and about this same time, on February 3, 2011, one of the

FBI defendants drafted a report of the November 2 meeting that

repeated the misstatement contained in the Trask affidavit, i.e., that

Adondakis had told defendants that he had advised Ganek of the

inside source of the information conveyed to him, specifically, that it

“came directly from contacts at Dell.” J.A. 42, ¶ 111.

Later that month, defendants again met with Adondakis, who

“reiterated that he had never told Mr. Ganek anything about the

source of his information.” Id. at 45, ¶ 130.

Meanwhile, on February 11, 2011, approximately three

months after the LG search, Ganek announced that, due to the flight

of investors from LG, he was forced to close the fund.

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E. Indictments and Disclosure of the Trask Affidavit

Adondakis was indicted for insider trading on April 25, 2011,

but his indictment was not unsealed until January 18, 2012, the same

day on which Bharara announced the indictment of Chiasson,

among others, for insider trading. Ganek was never indicted.

On March 1, 2012, the district court issued a protective order

permitting certain documents, including those supporting the LG

search, to be disclosed to defendants and other specified categories

of persons, which ultimately included Ganek’s counsel.

Chiasson stood trial in the fall of 2012, and was found guilty

of conspiratorial and substantive securities fraud based on his

insider trading.3 Testifying as a prosecution witness, Adondakis

acknowledged telling Chiasson and Brenner that the information he

passed on to them came from an inside source, but suggested that he

had not so told Ganek. In his trial testimony, FBI defendant Makol

also stated that Adondakis had not told defendants that he informed

Ganek of the inside source for information communicated to him.

3 Chiasson’s conviction was later vacated based on this court’s decision in

United States v. Newman, 773 F.3d 438 (2d Cir. 2014), which has since been

abrogated in part by Salman v. United States, 137 S. Ct. 420 (2016). Meanwhile,

Adondakis pleaded guilty to insider trading but, after Newman, the government

sought and obtained a nolle prosequi order. These legal developments, occurring

after the events here at issue, are irrelevant to resolution of this appeal because

qualified immunity must be assessed in light of the legal rules in place at the

time of the action in question. See Messerschmidt v. Millender, 565 U.S. 535, 546

(2012).

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II. The Instant Action

Ganek filed this action on February 26, 2015, pleading Fourth

and Fifth Amendment claims against defendants Trask, Makol,

Hinkle, Komar, Brodsky, and Leibowitz; a failure‐to‐intercede claim

against all defendants; and a claim for supervisory liability against

defendants Bharara, Johnson, Zabel, Garcia, Berger, Rodriguez,

Rojas, Chaves, and Carroll. He seeks damages for the loss of his

business, which had been valued at $400 million, as well as for lost

income and lost business reputation.

Defendants moved for dismissal, arguing that they are

shielded from this suit by qualified immunity. The district court

granted dismissal of so much of Ganek’s Fourth Amendment claim

as challenged the manner in which the government seized property

from LG (i.e., via search warrant rather than subpoena and with

advance public notice). See Ganek v. Leibowitz, 167 F. Supp. 3d at

636–38. It also granted dismissal of so much of Ganek’s Fifth

Amendment claim as pleaded a “stigma plus” injury and a

substantive due process violation. See id. at 647.4

The district court declined, however, to dismiss the remaining

Fourth Amendment claim, concluding that Ganek had adequately

alleged a deliberate or reckless misstatement of material fact in the

warrant affidavit that could be deemed necessary to a finding of

probable cause. See id. at 634–36. As to the Fifth Amendment

procedural due process claim, the district court ruled that Ganek

had plausibly alleged defendants’ fabrication of evidence to secure a

4 Because Ganek does not here cross‐appeal the dismissal of these claims,

we do not now discuss them further.

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search warrant, as a result of which he was deprived of tangible

property seized during the LG search, and it rejected the idea that

Fed. R. Crim. P. 41 provided sufficient remedial process. See id. at

638, 640–41. As to the Fifth Amendment failure‐to‐intercede claim,

the district court concluded that the non‐supervisor defendants may

have had a duty to intervene before an affidavit containing a

material misstatement was submitted to the magistrate judge, while

the supervisor defendants may have been obligated to limit

collateral damage by correcting the misstatement prior to LG’s

closure. See id. at 642–44. Because Ganek had pleaded that the

supervisor defendants “were kept abreast of developments,

prioritized the prosecution of highlevel executives, and tipped the

Wall Street Journal,” the district court deemed it at least plausible that

they would have learned the truth about Adondakis’s November 2,

2010 statements either before or after the submission of the flawed

affidavit to the magistrate judge. Id. at 646.

Defendants timely filed this appeal.

DISCUSSION

I. Standard of Review

We review de novo the denial of a motion to dismiss a

complaint based on qualified immunity, accepting all plausible

allegations as true and drawing all reasonable inferences in

plaintiff’s favor. See Garcia v. Does, 779 F.3d 84, 91 (2d Cir. 2015).

Qualified immunity—a concept derived from common law—

affords law enforcement officers a broad shield from claims for

money damages arising from the performance of their duties. See

White v. Pauly, 137 S. Ct. 548, 551 (2017) (reiterating that qualified

immunity is “an immunity from suit,” not simply from liability

11

(internal quotation marks omitted)); Raspardo v. Carlone, 770 F.3d 97,

111 (2d Cir. 2014) (same). The shield applies “unless a plaintiff

pleads facts showing (1) that the official violated a statutory or

constitutional right, and (2) that the right was ‘clearly established’ at

the time of the challenged conduct.” Ashcroft v. al‐Kidd, 563 U.S. 731,

735 (2011) (quoting Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982));

accord Carroll v. Carman, 135 S. Ct. 348, 350 (2014); Zalaski v. City of

Hartford, 723 F.3d 382, 388 (2d Cir. 2013).

If a plaintiff cannot make the first showing, i.e., a violation of

constitutional rights, no further inquiry is necessary “because where

there is no viable constitutional claim, defendants have no need of

an immunity shield.” Zalaski v. City of Hartford, 723 F.3d at 388. But

even where constitutional injury is shown, the shield applies unless

plaintiff can also show that the right violated was “clearly

established at the time of defendant’s actions.” Id.; see Ashcroft v.

al‐Kidd, 563 U.S. at 735.5 To make this “clearly established” showing,

a plaintiff need not identify a case directly on point, but precedent

must have spoken with sufficient clarity to have placed the

constitutional question “beyond debate.” Ashcroft v. al‐Kidd, 563 U.S.

at 741; accord White v. Pauly, 137 S. Ct. at 552 (stating that “clearly

established” showing requires “identif[ication of] a case where an

officer acting under similar circumstances . . . was held to have

violated the Fourth Amendment”). That determination is made not

from the perspective of courts or lawyers, but from that of a

5 The two‐step inquiry need not always be conducted sequentially; in

short, a court may assume, without deciding, that the facts state a constitutional

violation and, yet, grant qualified immunity on the ground that the right was not

then clearly established. See Pearson v. Callahan, 555 U.S. 223, 227 (2009); Zalaski v.

City of Hartford, 723 F.3d at 388–89.

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reasonable officer in the defendant’s position. See Saucier v. Katz, 533

U.S. 194, 202 (2001) (“The relevant, dispositive inquiry in

determining whether a right is clearly established is whether it

would be clear to a reasonable officer that his conduct was unlawful in

the situation he confronted.” (emphasis added)), overruled in part on

other grounds by Pearson v. Callahan, 555 U.S. 223, 227 (2009); accord

Zalaski v. City of Hartford, 723 F.3d at 389. The standard is

deliberately “forgiving,” Amore v. Novarro, 624 F.3d 522, 530 (2d Cir.

2010) (internal quotation marks omitted), in order to give public

officials “breathing room to make reasonable but mistaken

judgments” without fear of disabling liability, Messerschmidt v.

Millender, 565 U.S. 535, 546 (2012) (internal quotation marks

omitted). Thus, as has often been observed, qualified immunity

protects “‘all but the plainly incompetent or those who knowingly

violate the law.’” Ashcroft v. al‐Kidd, 563 U.S. at 743 (quoting Malley

v. Briggs, 475 U.S. 335, 341 (1986)).

Applying these principles here, we conclude that defendants

are entitled to qualified immunity and, therefore, to dismissal of

plaintiffs’ claims.

II. Fourth Amendment Claim

A. Probable Cause

The Fourth Amendment prohibits “unreasonable searches and

seizures.” U.S. Const. amend. IV. While a search pursuant to a

warrant issued by a judicial officer upon a finding of probable cause

is presumptively reasonable, see Golino v. City of New Haven, 950 F.2d

864, 870 (2d Cir. 1991), that presumption can be defeated by showing

that a defendant (1) “knowingly and deliberately, or with a reckless

disregard of the truth,” procured the warrant, (2) based on “false

13

statements or material omissions,” that (3) “were necessary to the

finding of probable cause,” Velardi v. Walsh, 40 F.3d 569, 573 (2d Cir.

1994); accord McColley v. Cty. of Rensselaer, 740 F.3d 817, 823 (2d Cir.

2014). Ganek asserts that this is such a case. He claims that

defendants procured a warrant to search his LG office by falsely

representing that Adondakis had told law enforcement officials that

he advised Ganek of the inside source of the information being

conveyed to him when, in fact, Adondakis specifically denied telling

Ganek that the information came from an inside source.

Defendants challenge the district court’s determination that

Ganek’s pleadings satisfactorily allege a knowingly false statement

necessary to the warrant. We need not here decide whether the

affidavit’s misrepresentation of Adondakis’s statement was

knowingly false because, even if we assume it was, we conclude that

the statement was not necessary to probable cause.

To determine whether a false statement was necessary to a

finding of probable cause, we consider a hypothetical corrected

affidavit, produced by deleting any alleged misstatements from the

original warrant affidavit and adding to it any relevant omitted

information. See Soares v. Connecticut, 8 F.3d 917, 920 (2d Cir. 1993);

accord Escalera v. Lunn, 361 F.3d 737, 743–44 (2d Cir. 2004). If

probable cause is lacking after such correction, then the false

statement was “necessary” to secure issuance of the warrant. In that

case, defendants would be entitled to qualified immunity only at the

second step of analysis, i.e., if a similarly situated law enforcement

official could have held an objectively reasonable—even if

mistaken—belief that the corrected affidavit demonstrated the

necessary probable cause. See Escalera v. Lunn, 361 F.3d at 744

(holding that if corrected affidavit provides “objective basis to

14

support arguable probable cause, remaining factual disputes are not

material to the issue of qualified immunity and summary judgment

should be granted to the defendant on the basis of qualified

immunity”). On the other hand, “if probable cause remains” after

the warrant is corrected, plaintiff has suffered no violation of Fourth

Amendment rights, and defendants would be entitled to qualified

immunity and dismissal at the first step of analysis. Smith v.

Edwards, 175 F.3d 99, 105 (2d Cir. 1999) (Sotomayor, J.) (internal

quotation marks omitted). That is this case.

To explain, we start by stating what is well established at law:

that probable cause to search exists where circumstances indicate a

“fair probability that contraband or evidence of a crime will be

found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238 (1983);

accord Walczyk v. Rio, 496 F.3d 139, 157 (2d Cir. 2007). This is not to

be confused with probable cause to think that the person whose

premises are to be searched is implicated in the crime. The Supreme

Court has expressly stated that where authorities do

not seek to seize ‘persons’ but only those ‘things’ which

there is probable cause to believe are located on the

place to be searched, there is no apparent basis in the

language of the [Fourth] Amendment for also imposing

the requirements for a valid arrest—probable cause to

believe that the third party is implicated in the crime.

Zurcher v. Stanford Daily, 436 U.S. 547, 554 (1978); accord United States

v. Martin, 426 F.3d 83, 86 (2d Cir. 2005) (holding it “untenable to

conclude that property may not be searched unless its occupant is

reasonably suspected of a crime and is subject to arrest” (internal

quotation marks omitted)).

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We note this distinction at the outset because much has been

made by Ganek and, to a degree, the district court about whether or

not Ganek knowingly traded on inside information. See Ganek v.

Leibowitz, 167 F. Supp. 3d at 635 (faulting warrant for “treating

[Ganek] as if he were directly implicated in an insider trading

scandal”). While evidence that Ganek knowingly traded on inside

information would enhance probable cause to search his office, the

absence of such mens rea evidence would not preclude probable

cause for such a search. One has only to imagine a scenario where

the government seeks to search the residence of a person who left a

box on a subway car that exploded and killed numerous persons.

The person may have known the contents of the box when he acted,

or he may have been an unwitting dupe. No matter. Whatever his

mens rea, his involvement in the actus reus of a crime would

sufficiently establish probable cause to search his residence for

criminal evidence pertaining to the bombing. So here, where the

warrant affidavit clearly alleges knowing insider trading by various

LG employees, as well as Ganek’s trading on some of the same

inside information, and where correction of the affidavit leaves only

his mens rea at issue, there was at least a fair probability to think that

his office was among the LG premises where evidence of an insider

trading scheme would be found.

Before explaining this conclusion more fully, we make a

further general observation about probable cause. As the Supreme

Court has explained, this is a “fluid” standard, which is not usefully

analogized to a prima facie case, or even to a preponderance (i.e.,

more likely than not) showing of criminal activity. Illinois v. Gates,

462 U.S. at 232, 235; see Walczyk v. Rio, 496 F.3d at 156–57. To be

sure, probable cause demands more than a “mere suspicion” of

wrongdoing, Mallory v. United States, 354 U.S. 449, 454 (1957), but

16

when, as here, a person’s conduct satisfies the actus reus of a crime,

we have moved well beyond mere suspicion. See Illinois v. Gates, 462

U.S. at 231 (observing that probable cause does not demand “hard

certainties,” but only “probabilities,” determined by looking to “the

factual and practical considerations of everyday life on which

reasonable and prudent men, not legal technicians, act” (internal

quotation marks omitted)); Florida v. Harris, 568 U.S. 237, 244 (2013)

(observing that probable cause is “practical,” “common‐sensical,”

“all‐things‐considered” standard).

With these principles in mind, we consider what a corrected

version of the 37‐page affidavit would look like after (a) deleting the

allegedly false assertions that Adondakis informed Ganek as to the

inside sources of the information conveyed to him, and (b) adding

(in italics) the undisclosed fact that Adondakis actually said he did

not inform Ganek that communicated information came from inside

sources. Such a warrant can be summarized as follows:

1. Ganek and Chiasson were co‐founding partners of LG,

which was located at 888 Seventh Avenue in Manhattan.

Chiasson was the fund’s director of research. See J.A. 94,

¶ 10; 97, ¶ 11; 100, ¶ 13.f.

2. At the relevant times (2009–2010), Adondakis was an

employee of LG who researched and analyzed public

technology companies. See id. at 98, ¶ 13.a.–b.

3. In the course of investigating insider trading schemes

during that time period, the FBI intercepted telephone

conversations of Adondakis knowingly and repeatedly

receiving inside information from third‐party consultants.

See id. at 80–93, ¶ 8.a.–d.

4. In October 2010, FBI agents approached Adondakis

(among others) about the possibility of his cooperating in a

17

broad investigation of insider trading. In early November,

Adondakis agreed to cooperate and admitted his

participation in obtaining inside information on multiple

occasions. See id. at 96–97, ¶ 11; 102, ¶ 14.a.

5. Adondakis further revealed to law enforcement authorities

that,

a. he had both “provid[ed] the Inside Information to

DAVID GANEK, ANTHONY CHIASSON, [Third

Person,] among others, at Level Global Investors who

then executed and caused others to execute securities

transactions based in part on the Inside Information,”

and “exchang[ed] that Inside Information with other

individuals,” id. at 97, ¶ 11;

b. his conversations communicating inside information

would “take place in, among other locations, the offices

of GANEK, CHIASSON, and [Third Person],” id. at 100,

¶ 13.e.;

c. he had informed Chiasson and [Third Person,] but not

Ganek, of the inside sources of the information conveyed

to them, see id. at 98–99, ¶ 13.c. & e.;

d. he had saved notes of conversations with insiders

regarding information received from them to the shared

network drive at LG, which, in turn, was maintained

and kept on LG’s servers, see id. at 98, ¶ 13.c.;

e. up until about October 16, 2009, he had used his LG

email address to exchange inside information with

several colleagues at other money managers, sometimes

forwarding emails received from such colleagues and

containing inside information to, among other people,

Chiasson, see id. at 99, ¶ 13.d.;

f. his LG emails were maintained on LG’s servers, see id.;

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g. after the October 16, 2009 arrest of Raj Rajaratnam, a

separate hedge fund’s founder, and others for insider

trading, Adondakis and colleagues with whom he

exchanged inside information at other money managers

stopped using their work email addresses and started to

use personal email addresses to communicate with each

other, see id.

6. In or about October or November 2010, a Dell employee

admitted to FBI agents that he had provided inside

information to various clients, “including Level Global

Investors, in exchange for money.” Id. at 102–03, ¶ 14.b.

7. From May to August 2010, FBI agents monitoring the

cellphone conversations of third‐party consultant John

Kinnucan intercepted his communications with, inter alia,

Chiasson and [Third Person] of LG, which revealed these

two men’s knowing receipt of inside information from

Kinnucan distinct from that provided by Adondakis. See

id. at 93–96, ¶¶ 9–10.

8. In October 2010, when FBI agents solicited Kinnucan’s

cooperation, he not only refused, but also, on October 26,

2010, sent an email to some 20 clients disclosing both the

federal contact and his refusal. See id. at 104, ¶ 16.

9. On November 19 and 20, 2010, the Wall Street Journal

reported these Kinnucan developments and further stated

that federal authorities had pursued a “Vast Insider

Trading Probe” over three years and were preparing

insider trading charges against consultants, investment

bankers, hedge‐fund and mutual‐fund traders, and

analysts across the country. See id. at 103–04, ¶¶ 15–16.

10. Following publication of the first Wall Street Journal report,

a confidential source working at an unidentified hedge

fund informed FBI agents that his supervisor had directed

him “to delete and discard evidence of their participation

19

in illegal insider trading and wire fraud schemes.” Id. at

105, ¶ 17.

11. Based on experience and training, the affiant reported

knowledge that,

a. participants in insider trading and fraud schemes

frequently maintain paper and electronic records of

i. communications relating to the inside

information,

ii. communications relating to trades executed in

reliance on such information,

iii. the transfers of money and proceeds related to

such schemes, and

iv. names, addresses, and contact numbers for

associates in the schemes, see id. at 107–08, ¶ 19.a.

& b.;

b. participants in insider trading and fraud schemes often

use computers, cellphones, and other electronic devices

to store documents and to send and/or receive email

communications and text messages, see id. at 108, ¶ 19.c.

& d.;

c. emails deleted from individual computers will often

remain stored on the related server, see id. at 109, ¶ 19.e.

As thus corrected, the affidavit demonstrates probable cause to

search Ganek’s office as well as the rest of the LG premises

identified in the warrant.6

6 Precedent instructs that, in applying the corrected affidavit doctrine, a

court properly examines “all of the information the officers possessed when they

applied for the [search] warrant.” Escalera v. Lunn, 361 F.3d at 744. Adondakis’s

testimony in the Chiasson trial suggests that, at the time defendants sought the

LG warrant, they may have possessed additional information as to the manner in

20

First, and at a minimum, the facts detailed give rise to a “fair

probability” that evidence of insider trading and related crimes as

committed by the cooperator Adondakis would be found in the LG

premises, including Ganek’s office. Adondakis, a former LG

employee, admitted knowingly procuring inside information that he

conveyed to various persons within LG—Ganek, Chiasson, Brenner,

and others—with the expectation that it be traded on. Ganek’s office

was one of the LG locations where Adondakis conveyed such

information. Ganek, Chiasson, Brenner, and others in fact traded

and caused others to trade on the information provided by

Adondakis. Thus, whether or not each recipient—and Ganek,

specifically—knew that he was trading on inside information, there

was probable cause to search each recipient’s office, including

computers and electronic devices, for records of communications

with Adondakis and of the ensuing trades, simply as evidence of

Adondakis’s criminal conduct. Ganek can point to no law

supporting his assertion, repeated at oral argument, that the

possibility of recovering some of these records from LG equipment

used by Adondakis or from LG servers defeats probable cause to

search the offices of recipients of Adondakis’s inside information for

evidence of transmittal and receipt.

Second, the facts detailed in the corrected affidavit further

demonstrate a “fair probability” that evidence of criminal conduct

which inside information was conveyed to Ganek. See, e.g., United States v.

Newman, No. 12‐cr‐121 (RJS), Trial Tr. 1779, 1801–03, ECF No. 199 (Dec. 21, 2012).

Because these facts are not part of the record on appeal, however, we do not

consider them part of the corrected affidavit.

21

by persons other than Adondakis would be found in the LG premises,

including Ganek’s office. The affidavit reveals that numerous

persons within LG in addition to Adondakis—Ganek, Chiasson,

Brenner, and others—received and then traded on inside

information, using still other employees to effect such trades. Such

evidence of receipt and trading is enough by itself to supply

probable cause to search each recipient’s office for evidence of the

overall insider trading scheme.

Nor is a different conclusion warranted because a corrected

affidavit shows that, at the time a search warrant was sought for

LG’s offices, the government had developed direct evidence of

knowing insider trading only as against Adondakis, Chiasson, and

Brenner, and not as against Ganek. As earlier observed, probable

cause to search a location, such as Ganek’s office, for evidence of a

crime does not require probable cause to think that the person

whose premises is to be searched is himself a knowing participant in

the criminal activity under investigation. It requires only probable

cause to think that evidence of a crime—by whomever committed—

will be found in the place to be searched. See Zurcher v. Stanford

Daily, 436 U.S. at 554; accord United States v. Martin, 426 F.3d at 86.

That probable cause was established by the fact that Ganek’s office

was one of the LG locations where Adondakis admitted conveying

inside information.

In any event, this is not a case in which there was no evidence

of Ganek’s involvement in insider trading. To the contrary, the actus

reus elements of the crime are plainly asserted in the corrected

affidavit: (1) Ganek had received inside information from

Adondakis, and (2) he had traded on it. Only his mens rea was

questionable. The law has long recognized that probable cause does

22

not demand evidence of every element of a crime—not even to

support a person’s arrest. See Gonzalez v. City of Schenectady, 728 F.3d

149, 155 (2d Cir. 2013). Indeed, the law is particularly tolerant with

respect to the mens rea element of a crime on a probable cause

showing. See, e.g., Zalaski v. City of Hartford, 723 F.3d at 393

(observing that because of practical restraints in ascertaining

knowledge and intent, “the latitude accorded to officers considering

the probable cause issue in the context of mens rea crimes must be

correspondingly great” (internal quotation marks omitted)). Such

tolerance is especially warranted here, where the corrected affidavit

shows that various persons closely associated with Ganek at LG

were knowingly trading on the very same information that Ganek

was receiving and using in making his own trades. In such

circumstances, Ganek’s actus reus conduct is sufficient to establish

probable cause to think that further evidence of the insider trading

scheme would be discovered in a search of his office.

No different conclusion is warranted by adding to the

corrected warrant affidavit Adondakis’s statement that he did not

tell Ganek the inside source of the information conveyed to him.

The totality of the circumstances, viewed in a common sense

manner, establish at least a “fair probability” that Ganek recognized

the inside source of the information in any event. He was a

sophisticated trader, who would likely know without needing to be

told that the sort of information being conveyed—e.g., future

projections provided in advance of earnings announcements—was

not yet public and could not be obtained without the aid of an

insider. Moreover, Ganek could have learned the inside source of

the information from persons other than Adondakis, notably,

Chiasson and Brenner, who were trading on the same information.

Chiasson, after all, was Ganek’s partner and LG’s research director.

23

Thus, it was fairly probable that Ganek would have discussed with

Chiasson information coming from an analyst such as Adondakis

before trading on it. In any event, with so many persons within

LG—Adondakis, Chiasson, Brenner—all knowingly trading on the

same inside information, it was unlikely that Ganek would have

been the sole recipient and trader ignorant of the inside source. See

Zalaski v. City of Hartford, 723 F.3d at 393 (stating that mens rea

assessment frequently depends on circumstantial evidence and, on

probable cause inquiry, “can be made on substantially less

evidence” than required for a beyond‐a‐reasonable‐doubt finding at

trial (internal quotation marks omitted)); United States v. Newman,

773 F.3d 438, 451 (2d Cir. 2014) (stating that fraudulent intent

element of insider trading can be established “solely through

circumstantial evidence”), abrogated on other grounds by Salman v.

United States, 137 S. Ct. 420 (2016).

In short, the mere possibility that Ganek unwittingly traded

on inside information cannot defeat the probable cause to search

Ganek’s office that is evident from the totality of the corrected

affidavit. See, e.g., Fabrikant v. French, 691 F.3d 193, 216 (2d Cir. 2012)

(observing that innocent explanation consistent with facts alleged

does not negate probable cause). Nor can Ganek persuasively argue

that “the suspected criminal activity of a few [other] employees”

was all that “justified an absolute and complete rummaging search

of anyone who interacted with them.” Appellee’s Br. 34. As noted,

Ganek himself committed the actus reus element of insider trading.

When one considers that fact, particularly in light of circumstantial

evidence making Ganek’s culpable mens rea fairly probable, the

corrected affidavit establishes probable cause to search Ganek’s

office for evidence of his own criminal conduct as well as for that of

Adondakis and others at LG involved in insider trading.

24

We reach this conclusion, moreover, as a matter of law

because there can be no genuine dispute as to a reasonable judicial

officer issuing the challenged search warrant upon review of the

corrected affidavit. See Smith v. Edwards, 175 F.3d at 106; Velardi v.

Walsh, 40 F.3d at 574; Soares v. Connecticut, 8 F.3d at 920–21.

Assuming that such a warrant issuance question might arise where

the credibility of certain evidence (e.g., from a source with a motive

to lie), or the sufficiency of corroboration (e.g., for an anonymous tip)

informs a probable cause determination, see McColley v. Cty. of

Rensselaer, 740 F.3d at 824–26, that is not this case. The corrected

affidavit cleanly deletes the alleged misrepresentation (that

Adondakis disclosed the inside source of information to Ganek) and

adds a correction (that Adondakis made no such disclosure).

Presented with that corrected affidavit, a reasonable judicial officer

who weighed the totality of facts in the corrected affidavit could

only find probable cause established. The district court erred in

concluding otherwise. See Walczyk v. Rio, 496 F.3d at 158.

Accordingly, we conclude that Ganek cannot show that his

Fourth Amendment rights were violated by the alleged

misstatement in the Trask warrant affidavit because a corrected

affidavit still establishes probable cause to search the LG premises,

including Ganek’s office. Thus, defendants are entitled to qualified

immunity and dismissal on this part of Ganek’s Fourth Amendment

claim.

B. Scope of Warrant

Although Ganek criticizes the “wide‐ranging” and

“expansive” scope of the warrant, Appellee’s Br. 32, 35, the basis for

that criticism appears to be his professed non‐involvement in the

insider trading under investigation, see id. at 32 (emphasizing that

25

warrant is “expansive” because it permits search of office used by

person (i.e., Ganek) “not implicated in the wrongdoing under

investigation”); id. at 35 (“There is no basis given for why this

exhaustive search, foraging through all of [Ganek’s] files . . . would

have been necessary or justified assuming Ganek was believed only

to be an unwitting participant in others’ alleged crimes.”). In short,

in Ganek’s view, his office and effects should not have been

searched at all in the absence of evidence that he knowingly

participated in insider trading. We have already rejected this

argument in our immediately preceding discussion of probable

cause.7

Even if we construe Ganek’s pleadings to raise a distinct

challenge to the scope of the LG search warrant, however, he states

no Fourth Amendment violation because the authorized search did

not “outrun[] the probable cause supporting the warrant.” United

States v. Clark, 638 F.3d 89, 94 (2d Cir. 2011).

The warrant authorized a search of “the premises,” which was

defined to include, inter alia, Ganek’s office and any computers or

7 Given our conclusion that probable cause existed to search Ganek’s

office, any damages awarded based on overbreadth could only be nominal in

any event because Ganek effectively concedes that the loss of his business is

attributable to his having been the subject of a search at all. Insofar as he argues

on appeal that LG’s “sophisticated investors could distinguish between a search

of the principal for evidence implicating other employees and one indicating

Ganek himself was a target of the [investigation],” Appellee’s Br. 35 n.7, there is

no basis to conclude that a corrected affidavit would have to state that

prosecutors did not consider Ganek a target. It had only to recount accurately

what Adondakis had stated about what he did and did not tell Ganek in

conveying inside information.

26

cellphones located therein. J.A. 68, 70 (Attachment A). Within the

LG premises, agents were authorized to search for the following:

[a]ll financial records, handwritten documents and/or

notebooks, letters and correspondence, photographs,

telephone and address books, identification documents,

travel documents, telephone records, computers and

other electronic devices, cellular telephones, and other

records and documents that constitute evidence of the

[crimes under investigation, specifically] securities

fraud, wire fraud, money laundering, [and] commercial

bribery . . . .

Id. at 70.

To be sure, this language sweeps broadly, but the corrected

affidavit showed that inside Ganek’s office, Adondakis had

conversations in which he communicated inside information on

which Ganek then traded. Further, Agent Trask states in the

corrected affidavit that the items identified in Attachment A are of

the sort where evidence of insider trading is likely to be found.

Adondakis confirmed as much when he reported using LG

computers and servers, as well as cellphones and personal email

accounts, to carry out insider trading. Moreover, conversations

intercepted over the Kinnucan wiretap, including some with LG

employees, further confirmed Agent Trask’s statements. Thus, the

authorized search was not overbroad.

The search procedures outlined in Attachment B to the

warrant reinforce this conclusion. Attachment B authorized the FBI

to search the content of items identified in Attachment A for the

following information:

27

(1) Any and all communications between and among

David Ganek, Anthony Chiasson, [Third Person],

Sam Adondakis, [redacted] consultants, . . . John

Kinnucan, Broadband Research, and any third‐party

consultant.

(2) Any and all documents relating to, reflecting, and/or

concerning information about public companies.

(3) Any and all evidence reflecting communications

about trading based on information about public

companies.

(4) Any and all other evidence that will assist the FBI in

identifying and/or determining whether other

individuals were involved in providing material,

nonpublic information in violation of fiduciary and

other duties of confidentiality and/or involved in

trading based on material, nonpublic information.

(5) Any and all other information reflecting and/or

showing and/or leading to evidence [of the crimes

under investigation].

Id. at 73. While this attachment is also broad, the corrected affidavit

supports its scope.

The corrected affidavit provides evidence that, within LG’s

premises, Adondakis, Ganek, Chiasson, and Brenner received and

traded on inside information about multiple public companies,

including Dell, Texas Instruments, Western Digital, and Seagate.

Moreover, because the persons communicating that information

included some who were then cooperating with the government,

such as Adondakis, and some who were not, such as Kinnucan, the

affidavit admitted a fair probability that the extent of insider trading

28

within LG reached beyond the public companies thus far identified

by the government. Accordingly, it was appropriate to afford law

enforcement authorities some latitude in searching physical and

electronic record depositories for evidence of insider trading. As

this court stated more than twenty‐five years ago,

[A] warrant authorizing seizure of records of criminal

activity permits officers to examine many papers in a

suspect’s possession to determine if they are within the

described category. . . . [A]llowing some latitude in this

regard simply recognizes the reality that few people

keep documents of their criminal transactions in a

folder marked ‘drug records.’

United States v. Riley, 906 F.2d 841, 845 (2d Cir. 1990). This reasoning

applies with equal force to searches of electronic records for

evidence of insider trading.

This is not to ignore the particular challenges posed by

electronic searches. See generally United States v. Ganias, 824 F.3d 199,

215 (2d Cir. 2016) (en banc). But Attachments A and B effectively

placed an important limit on defendants’ search authority. They

could search business records and communications for evidence of

insider trading. No authority was given to search such personal

effects and communications as Ganek might have had in his LG

office (even on his computer and cellphone). This distinguishes the

LG search from those limitless searches at issue in the district court

cases cited by Ganek.8

8 See United States v. Zemlyansky, 945 F. Supp. 2d 438, 459 (S.D.N.Y. 2013)

(holding warrant overbroad because it failed to provide “any instructions”

respecting seizure of clinic records by reference to “particular suspects in the case

. . . the time period of the suspected conspiracy . . . the crimes alleged, or any

29

Thus, because Ganek cannot show that the breadth of the

warrant violated the Fourth Amendment, defendants are entitled to

qualified immunity and dismissal on this part of his Fourth

Amendment claim.

C. Fifth Amendment Due Process Claim

The district court concluded that Ganek’s allegation of a

knowingly false statement in the LG warrant affidavit supported not

only a Fourth Amendment claim for unreasonable search and

seizure but also a Fifth Amendment claim for the deprivation of

property without due process. See Ganek v. Leibowitz, 167 F. Supp. 3d

at 638, 640–41.9 In reaching this conclusion, the district court relied

on precedent recognizing a procedural due process cause of action

for damages where “an (1) investigating official (2) fabricates

information (3) that is likely to influence a jury’s verdict,

other limits”); United States v. Vilar, No. 05‐CR‐621, 2007 WL 1075041, at *20

(S.D.N.Y. Apr. 4, 2007) (holding warrant overbroad because it permitted search

of, e.g., “all client files [and] all investment advisory agreements . . . regardless of

whether those documents had any relation to the funds, accounts, and

individuals addressed by the Warrant application” and about which there was

probable cause to search (emphasis in original)); cf. United States v. Levin, No. 15‐

CR‐101, 2015 WL 5602876, at *8 (S.D.N.Y. Sept. 23, 2015) (finding probable cause

supported search of premises, including private office, for evidence of mail and

wire fraud, because corrected affidavit indicated that employees working there

may have engaged in fraudulent practices).

9 The district court acknowledged that “some courts have held that

procedural due process claims cannot be predicated upon the same factual basis

as Fourth Amendment claims,” but concluded that “the issue of whether Ganek’s

due process fabrication claim will be absorbed by the Fourth Amendment

probable cause claim” was not an issue that had to be resolved on the motion

then before it. Ganek v. Leibowitz, 167 F. Supp. 3d at 641 n.14 (alterations and

internal quotation marks omitted). We also need not resolve the question

because Ganek’s due process claim fails on the merits.

30

(4) forwards that information to prosecutors, and (5) the plaintiff

suffers a deprivation of life, liberty, or property as a result.” Garnett

v. Undercover Officer C0039, 838 F.3d 265, 279 (2d Cir. 2016).10

We assume, without deciding, that Ganek could successfully

clear possible threshold obstacles to his pursuit of such a due

process claim.11 We nevertheless conclude that he cannot plausibly

state such a claim because, even viewing the facts in a light most

favorable to him, the alleged deprivation of property resulting from

the search of his office cannot be said to be the result of the

fabrication of evidence in view of our corrected affidavit analysis.

See Zahrey v. Coffey, 221 F.3d 342, 349 (2d Cir. 2000) (observing that

“right at issue is a constitutional right, provided that the deprivation

of liberty of which Zahrey complains can be shown to be the result

of Coffey’s fabrication of evidence”).12

10 Ganek frames this as a Fifth Amendment claim and so we refer to it as

such herein without deciding whether such a claim does indeed find its basis in

that amendment. See Garnett v. Undercover Officer C0039, 838 F.3d at 276 n.6

(“Whether this right is rooted in the Sixth Amendment or Fifth and Fourteenth

Amendments, or both, is an issue we need not decide . . . .”).

11 Among these are (1) the availability of a Bivens remedy for such a due

process claim, see Ziglar v. Abbasi, 137 S. Ct. 1843, 1857 (2017) (“[E]xpanding the

Bivens remedy is now a ‘disfavored’ judicial activity.” (internal quotation marks

omitted)); but see Zahrey v. Coffey, 221 F.3d 342, 357 (2d Cir. 2000) (recognizing,

without discussion, Bivens claim for fabrication of evidence); and (2) whether

(a) the deprivation of property was “random and unauthorized” and (b) Fed. R.

Crim. P. 41(g) provides a “meaningful postdeprivation remedy” for that loss,

Hudson v. Palmer, 468 U.S. 517, 533 (1984).

12 Zahrey observed that “[c]ourts considering whether the deprivation of a

plaintiff’s liberty is the legally cognizable result of a government officer’s

misconduct have approached the issue in either of two ways: (1) as a separate

issue of causation, or (2) as part of the right allegedly violated.” Zahrey v. Coffey,

221 F.3d at 349. Ganek’s claim fails under either approach.

31

That analysis shows that probable cause existed to search

Ganek’s office even when the alleged fabricated statement is deleted.

While Garnett v. Undercover Officer C0039, 838 F.3d at 277, and its

predecessor case, Ricciuti v. New York City Transit Authority, 124 F.3d

123, 130 (2d Cir. 1997), state that probable cause for arrest is not a

defense to a fabrication‐of‐evidence due process claim, the alleged

deprivations in those cases involved separate harms beyond the

deprivation—arrest—supported by probable cause. For example, in

Garnett, the fabrication allegedly informed post‐arrest charging and

bail determinations. See 838 F.3d at 277 (“The setting of bail, which

may make the difference between freedom and confinement

pending trial, and the prosecutor’s decision to pursue charges rather

than to dismiss the complaint without further action, may depend

on the prosecutor’s and magistrate’s assessments of the strength of

the case, which in turn may be critically influenced by fabricated

evidence.”). Thus, where a corrected affidavit establishes probable

cause to arrest or to search, a plaintiff cannot state a procedural due

process claim for lost liberty or property attributable only to that

arrest or search. Such a claim can be pursued, however, if the

fabricated evidence causes some “further deprivation.” Id.

Here, the only property loss alleged to have occurred without

due process resulted from seizures made during the challenged

search. But as we have concluded, even on a corrected affidavit, that

search is supported by probable cause, the only process due.13 Thus,

13 Ganek cannot claim that the affidavit misstatement caused a further

loss of property—specifically, his business—without due process. The Trask

affidavit was not unsealed until March 1, 2010, some weeks after Ganek closed

LG on February 11, 2010. Thus, it is apparent that the due process injuries of

which he complains are all attributable to the challenged search of his office,

32

because Ganek cannot show a procedural due process violation,

defendants are entitled to qualified immunity and to the dismissal of

this part of his Fifth Amendment claim.

D. Failure‐To‐Intercede Claim

The district court denied defendants’ motion to dismiss

Ganek’s failure‐to‐intercede claim, which it construed to apply both

to (1) non‐supervisor defendants, for their failure to correct the

affidavit misstatement prior to issuance of the warrant; and

(2) supervisor defendants, for their failure to clarify publicly that

Ganek was not a target of the insider trading probe. See Ganek v.

Leibowitz, 167 F. Supp. 3d at 642 (“It is widely recognized that all law

enforcement officials have an affirmative duty to intervene to

protect the constitutional rights of citizens from infringement by

other law enforcement officers in their presence.” (internal quotation

marks omitted)).

Ganek cannot plausibly claim that he suffered constitutional

harm from defendants’ failure to correct a misstatement in a warrant

affidavit that would have stated probable cause to search Ganek’s

office even on correction. Cf. Anderson v. Branen, 17 F.3d 552, 557 (2d

Cir. 1994) (“An officer who fails to intercede is liable for the

preventable harm caused by the actions of the other officers . . . .”)

(emphasis added)); O’Neill v. Krzeminski, 839 F.2d 9, 11–12 (2d Cir.

1988).

As for Ganek’s failure‐to‐clarify claim, there is no

constitutional right—and certainly none that is clearly established by

which we have concluded was not unlawful, and not to the public dissemination

of Adondakis’s false statement.

33

law—to have law enforcement officials issue public statements

clarifying a person’s investigative status. Indeed, in the context of

ongoing investigations, it is generally thought better for law

enforcement officials to make no comments about such matters

unless and until they are prepared to file public charges. See U.S.

Dep’t of Justice, U.S. Attorneys’ Manual § 1‐7.530 (stating, subject to

certain exceptions, that “components and personnel of the

Department of Justice shall not respond to questions about the

existence of an ongoing investigation or comment on its nature or

progress”).

Nor is such a right‐to‐clarify status established in the context

of this case by precedent recognizing a constitutional obligation to

protect an individual when the government itself “has created or

increased the danger to the individual.” Ying Jing Gan v. City of New

York, 996 F.2d 522, 533 (2d Cir. 1993). That right has been recognized

in circumstances of increased physical, often life‐threatening, danger

to individuals, particularly those in state custody. See id. (collecting

cases). That is not this case. Ganek cites no precedent that

constitutionally obligates government authorities to mitigate the risk

of injury to reputation resulting from public knowledge of an

ongoing investigation.

In sum, because Ganek fails to state cognizable claims for

failure to intervene and failure to clarify, defendants are entitled to

qualified immunity and to dismissal of these Fifth Amendment

claims.

E. Claims Against Supervisor Defendants

Ganek also asserts his Fourth Amendment, procedural due

process, and failure‐to‐intercede claims against the supervisor

34

defendants. Because we conclude that each of those claims fails on

the merits, the supervisor defendants are entitled to dismissal.

Even if Ganek had stated plausible Fourth and Fifth

Amendment claims against the non‐supervisor defendants,

however, he fails to plead sufficient facts to attribute liability to the

supervisor defendants. As the Supreme Court has instructed,

“[b]ecause vicarious liability is inapplicable to Bivens and § 1983

suits,” a plaintiff bringing a Bivens claim “must plead that each

Government‐official defendant, through the official’s own

individual actions, has violated the Constitution.” Ashcroft v. Iqbal,

556 U.S. at 676. To satisfy this standard, Ganek had to plead facts

showing each supervisor defendant’s personal involvement in the

submission of an intentionally or recklessly false statement to the

magistrate judge. He does not do so here.

Specifically, Ganek does not allege that any of the supervisor

defendants attended the November 2, 2010 meeting at which

Adondakis purportedly told defendants that he had not informed

Ganek of the inside source of the information he was sharing. Nor

does Ganek allege that any supervisor defendant actually knew that

any statement attributed to Adondakis in the search warrant

affidavit was not true. He alleges only that Zabel and Leibowitz

informed LG representatives that the search “had been carefully

considered at the highest levels,” J.A. 18, ¶ 6; and that defendant

Bharara told LG’s attorney that the LG search had not been

authorized “without considering the consequences,” id. at 19, ¶ 8.

From this, he argues that supervisor responsibility for the

Adondakis misstatement can be inferred from

the high‐profile nature of this raid and investigation,

the anomalous use of such a raid in an investigation of

35

financial crimes, the customs and practices of the FBI

and U.S. Attorney’s Office, and the subsequent

statements about this investigation by supervisors up to

and including United States Attorney Preet Bharara

himself.

Id. at ¶ 10.

The argument does not persuade because the fact that the

decision to search LG’s offices was “carefully considered at the

highest levels” of the U.S. Attorney’s office is not enough to admit

an inference that supervisors knew or should have known that a

statement in the warrant affidavit, attributed to Adondakis, was

false. See Ashcroft v. Iqbal, 556 U.S. at 680–81 (concluding that

allegation that department head was “principal architect” of

challenged policy was too conclusory to support claim against him

for how subordinates effected policy). Certainly Ganek does not

plead, either generally or with specific reference to this case, that FBI

and U.S. Attorney supervisors, when reviewing search warrant

applications, do not routinely rely on their subordinates to report

accurately the statements made to them by cooperating witnesses.

Nor do they—or could they—suggest that doing so is reckless.14

14 The district court, relying on our panel decision in Turkmen v. Hasty,

789 F.3d 218 (2d Cir. 2015), concluded that “it seems entirely plausible that [nonsupervisor]

defendants would have run such a decision [to misrepresent

Adondakis’s statements] ‘up the ladder’ in shaping the Affidavit,” Ganek v.

Leibowitz, 167 F. Supp. 3d at 646 n.19. Turkmen, however, has been reversed by

Ziglar v. Abbasi, 137 S. Ct. at 1869. In any event, the Supreme Court had earlier

made clear that plausible does not equate to merely possible. See Ashcroft v. Iqbal,

556 U.S. at 681–82. Where an obvious explanation exists for challenged

conduct—in this case, a supervisor’s reliance on a subordinate’s report of what

the subordinate had heard a cooperator say—more than an allegation of careful

supervisory review is necessary to plead the supervisor’s individual

36

In sum, because Ganek has failed to state cognizable Fourth

Amendment, procedural due process, and failure‐to‐intercede

claims, and, in any event, because Ganek has failed to plead

sufficient facts as to each supervisor defendant’s personal

involvement in the submission of the alleged misstatement to the

magistrate judge, the supervisor defendants are entitled to dismissal

of these claims.

CONCLUSION

To summarize, we conclude that all defendants are entitled to

qualified immunity and, therefore, to dismissal of all Ganek’s

claims.

1. Ganek fails to plead a plausible Fourth Amendment

claim of unreasonable search and seizure because a corrected

affidavit supports both probable cause for and the scope of the

challenged search.

2. Ganek fails to plead a plausible Fifth Amendment claim

that fabricated evidence (in the search warrant affidavit) deprived

him of property without due process because the warrant would

have issued on a corrected affidavit and thus any deprivation of the

seized property was not the result of the fabricated evidence.

3. Because Ganek fails to plead plausible Fourth and Fifth

Amendment claims, he cannot plausibly plead that defendants’

alleged failure to intercede in the challenged search caused him

preventable constitutional harm.

responsibility for the falsehood. See id. (identifying “more likely” nondiscriminatory

motive in concluding that pleading was insufficient).

37

4. Ganek fails to plead any clearly established right to

have federal officials state in a search warrant affidavit whether each

referenced person is or is not then a target of investigation, nor a

right to have federal officials so state after the fact if the search

becomes public knowledge.

5. Moreover, Ganek fails to plead sufficient facts as to the

supervisor defendants’ personal involvement in the submission of

any misstatements to the magistrate judge.

Accordingly, that part of the district court order denying

defendants’ dismissal motion in part is hereby REVERSED, and the

case is REMANDED to the district court for entry of judgment in

favor of defendants on all claims.