Moore v. Hartman

• Citation: 571 F.3d 62
• Decision Date: 07 July 2009
• Docket Number: No. 08-5370.,No. 08-5371.,08-5370.,08-5371.
• Parties: William G. MOORE, Jr., Appellant v. Michael HARTMAN, Et Al., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

571 F.3d 62

William G. MOORE, Jr., Appellant v. Michael HARTMAN, Et Al., Appellees.

No. 08-5370.

No. 08-5371.

United States Court of Appeals, District of Columbia Circuit.

Argued April 16, 2009.

Decided July 7, 2009.

Appeals from the United States District Court for the District of Columbia (No. 1:92-cv-02288).

Paul Michael Pohl argued the cause for appellant. With him on the briefs were Bryan D. Kocher, Christian G. Vergonis, and Joseph M. David.

Richard Montague, Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were Michael F. Hertz, Acting Assistant Attorney General, Jeffrey A. Taylor, U.S. Attorney, and Barbara L. Herwig, Attorney.

Before SENTELLE, Chief Judge, HENDERSON and BROWN, Circuit Judges.

Opinion for the Court filed by Chief Judge SENTELLE.

SENTELLE, Chief Judge:

Over twenty years ago, appellant William Moore was indicted and charged with participation in an illegal conspiracy. At the close of the government's evidence, the trial court dismissed all charges. After his acquittal, appellant filed this action asserting retaliatory prosecution claims under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), and malicious prosecution claims under the Federal Tort Claims Act, 28 U.S.C. §§ 2671 et seq. (FTCA), against the prosecutor and six postal inspectors (one of whom is now deceased). Only the appellant's Bivens and FTCA claims against the postal inspectors remain. Following a Supreme Court decision that appellant bears the burden of proving the absence of probable cause to prevail on his retaliatory prosecution claim, the postal inspectors moved for summary judgment on the ground that appellant could not prove the absence of probable cause. The district court granted the postal inspectors' motion, concluding that an indictment is conclusive evidence of probable cause, and that the appellant failed to establish a lack of probable cause. Appellant contends on appeal that the district court erred by holding that an indictment was conclusive evidence of probable cause and that, under the proper standard, he overcame the rebuttable presumption of probable cause established by the indictment. On review, we hold that the district court erred by holding that an indictment is conclusive evidence of probable cause in a subsequent retaliatory or malicious prosecution action. We therefore vacate the judgment of the district court and remand for further proceedings.

I. BACKGROUND

This case has a factual history stemming back over twenty years to the early 1980s. The voluminous facts in this case have been set forth in a number of prior opinions both by this court and the Supreme Court. See Hartman v. Moore (Moore IV), 547 U.S. 250, 252-56, 126 S.Ct. 1695, 164 L.Ed.2d 441 (2006); Moore v. Hartman (Moore III), 388 F.3d 871, 873-75 (D.C.Cir.2004); Moore v. United States (Moore II), 213 F.3d 705, 707-09 (D.C.Cir. 2000); Moore v. Valder (Moore I), 65 F.3d 189, 191-92 (D.C.Cir.1995). The following is a brief recitation of the salient facts concerning the immediate legal battle in the war that is Moore v. Hartman.

In 1982, the appellant, William Moore was President and CEO of Recognition Equipment, Inc. (REI), a company that specialized in optical scanning technology. Appellees Michael Hartman et al. were postal inspectors for the United States Postal Service (USPS). Beginning in the late 1970s, the USPS had pursued an initiative to add four digits to the current five-digit zip codes in an effort to enable more efficient automatic scanning of mail for sorting. This zip+4 initiative would enable the USPS to use scanners that only needed to scan one line of text on mail instead of multiple lines of text. Moore's company, however, specialized in producing an optical scanner capable of scanning multiple lines of text. Moore urged the Postmaster General to consider purchasing REI's multi-line scanners in the early 1980s, which would have required the USPS to continue using a five-digit zip code. Nevertheless, in late 1983, the Postmaster General announced that the USPS was committed to using the new zip+4 format.

Many in Congress were upset at the USPS's stance on the zip+4 format. Moore and REI began to lobby Congress and USPS governors on behalf of REI's multi-line scanners, arguing that they were superior products that did not require a wholesale zip code change. Eventually, Moore's position gained traction, with several members of Congress pressing REI's case with the USPS Board of Governors. The USPS Board of Governors finally gave in to the pressure surrounding the USPS's zip+4 tack, and made a "mid-course correction" to switch the technology from single line technology to multi-line scanners.

Shortly thereafter, the USPS Postal Inspection Service uncovered two criminal schemes relating to this design switch and, at least incidentally, to REI. The first scheme was a kickback arrangement involving USPS Governor Peter Voss and a consulting firm, Gnau & Associates, Inc. (GAI), which REI had hired in connection with its lobbying efforts. Under this scheme, GAI was paying Voss for referrals, and three GAI officers (John Gnau, Michael Marcus, and William Spartin) agreed to share the proceeds of the REI contract with Voss. A second scheme unrelated to this instant dispute involved Spartin and REI's alleged role in attempting to improperly influence the selection of a new Postmaster General. Voss, Gnau, and Marcus pleaded guilty to criminal charges for their roles in the two schemes, while Spartin was given immunity in exchange for his cooperation.

The postal inspectors then set out to determine whether anyone at REI had participated in the two uncovered criminal schemes. Following an investigation, which is the subject of this dispute, a grand jury returned an indictment against Moore and REI's vice president, Robert Reedy, charging them with conspiracy to defraud the United States, theft, receiving stolen property, and mail and wire fraud. United States v. Recognition Equip., Inc., 725 F.Supp. 587 (D.D.C.1989). REI itself was also indicted along with Moore and Reedy. The criminal matter against the defendants proceeded to trial. The trial court granted Moore's motion for a judgment of acquittal at the close of the government's case, ruling there was insufficient evidence to show beyond a reasonable doubt that Moore was even aware of the conspiracy. Id. at 602.

Having been exonerated, Moore subsequently brought a civil suit alleging five causes of action against the postal inspectors who conducted the investigation against him, and the Assistant United States Attorney who prosecuted the case. The only remaining claims at this point in the litigation are Moore's Bivens claim alleging that the inspectors induced a retaliatory prosecution against him, and an FTCA claim against the inspectors alleging malicious prosecution. With respect to these claims, the postal inspectors moved for summary judgment on the retaliatory prosecution claim on the theory that they enjoyed qualified immunity because probable cause supported Moore's prosecution. The district court denied that motion. We affirmed the district court's decision and rejected the inspectors' qualified immunity defense finding that, under the law of this Circuit, government officials were barred from bringing charges they would not have pursued absent retaliatory motive regardless of whether they had probable cause to do so. Moore III, 388 F.3d at 872. The Supreme Court reversed, holding that, to prevail on his Bivens claim, Moore must prove that the prosecutor lacked probable cause to bring the charges against him, as lack of probable cause is an essential element of a Bivens claim for retaliatory prosecution. Moore IV, 547 U.S. at 265-66, 126 S.Ct. 1695.

Under the Supreme Court's decision, the three elements of a retaliatory prosecution claim are that: (1) the appellant's conduct allegedly retaliated against or sought to be deterred was constitutionally protected; (2) the government's bringing of the criminal prosecution was motivated at least in part by a purpose to retaliate for or to deter that conduct; and (3) the government lacked probable cause to bring the criminal prosecution against the appellant. See id.; Moore II, 213 F.3d at 709 (describing the first two elements of a retaliatory prosecution claim). On remand, the district court granted additional discovery to explore the bases for probable cause. After discovery was complete, the inspectors again moved for summary judgment, arguing that appellant could not show that the government lacked probable cause to bring the charges against him. Moore asserted that he had shown a lack of probable cause, and pointed to a number of facts to support his argument. First, the prosecutor made statements to grand jury witnesses to "not reveal" certain portions of their testimony to the grand jury. Second, senior attorneys in the U.S. Attorney's Office allegedly stated in memoranda that the government's evidence against appellant was "extremely thin," and openly questioned whether charges should be brought against appellant. Third, the postal inspectors stated in a memorandum after the grand jury investigation that witnesses could testify that appellant was not aware of the conspiracy. Finally, the postal inspectors improperly showed GAI Officer Spartin other witnesses' grand jury statements, intimidated Spartin by threatening to prosecute his son and tearing up his plea agreement, and lobbied the U.S. Attorney's Office to prosecute appellant. The district court held that a valid indictment conclusively determines the existence of probable cause to bring charges against a suspect. Applying this stringent standard, the district court concluded that Moore's proffered evidence could not negate the conclusive effect of probable cause given to the grand jury indictment in this case. Under the...