Moore v. USA.

Decision Date02 June 2000
Docket NumberNo. 99-5197,N,99-5197
Citation213 F.3d 705,341 U.S. App. D.C. 348
Parties(D.C. Cir. 2000) William G. Moore, Jr., Appellant v. United States of America, Appellee William G. Moore, Jr., Appellant v. Joseph B. Valder, Appellee o. 99-5198
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeals from the United States District Court for the District of Columbia(92cv02288)(93cv00324)

Paul M. Pohl argued the cause for appellant. With him on the briefs were Bryan D. Kocher, Daniel H. Bromberg, and James E. Anklam.

Richard Montague, Trial Attorney, U.S. Department of Justice, argued the cause for appellees. With him on the brief were David W. Ogden, Acting Assistant Attorney General, Andrea W. McCarthy, Senior Trial Counsel, and Wilma A. Lewis, U.S. Attorney.

Before: Silberman, Randolph, and Rogers, Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge:

Our first opinion in this case affirmed in part and reversed in part the district court's dismissal of William G. Moore, Jr.'s complaint against a prosecutor and postal inspectors and his complaint against the United States. See Moore v. Valder, 65 F.3d 189 (D.C. Cir. 1995). On remand, the district court again dismissed the claims against the prosecutor, Joseph B. Valder, and granted judgment on the pleadings in favor of the government, rulings from which Moore now appeals.

I.

Moore's basic grievance is that he was unjustly prosecuted on charges concerning his dealings with the United States Postal Service. In the early 1980s, the company Moore headed--REI--wanted to sell the Postal Service multiple-line scanners, but the Service declined. Moore publicly criticized the decision. A Postal Service governor--Peter Voss--suggested to REI that it hire the consulting firm GAI to promote its product. REI did so. Voss had a side deal with GAI: thirty percent of the fees REI paid to the consulting firm were kicked back to Voss. After their crimes were discovered, Voss and several GAI officials plead guilty. William A. Spartin, GAI's president, negotiated an immunity deal in return for his cooperation.

Postal inspectors and prosecutor Valder, seeking to establish that Moore and REI knew of the kickback scheme, were told instead by each of five of the admitted conspirators, including Spartin, that no one at REI had such knowledge. The postal inspectors later drafted, and the prosecutor presented to the grand jury, "witness statements" for these individuals, but without this exculpatory information. Spartin's refusal to implicate Moore prompted Valder to tear up his immunity agreement and threaten to prosecute Spartin's son. Valder and the postal inspectors showed Spartin the government-drafted statements of the other witnesses.(Moore alleges this disclosure was a violation of grand jury secrecy rules.) Spartin continued to deny that he had personal knowledge of Moore's involvement, repeating the point nineteen times during a polygraph test. Spartin then said "I have no knowledge of that at all.... But, you know, I read that goddam[n] testimony and I'm not a lawyer but Jesus, there's enough there to seem to me to hang REI from the yardarm." Spartin then testified before the grand jury that in his "opinion" Moore knew of the kickback scheme.

Postal inspectors also provided witness interview statements and lab results to Paul Carlin, a former Postmaster General dismissed by the Board of Governors during the scanner controversy. Then, weeks before an indictment was returned against Moore, the inspectors passed along a draft indictment to Carlin. Carlin later filed a civil RICO claim against Moore, alleging that Moore conspired to have the Board dismiss him.

Moore, REI Vice President Robert Reedy, and REI were indicted by a federal grand jury in the District of Columbia in October 1988 for conspiracy to defraud the United States, theft, receipt of stolen property, mail fraud and wire fraud. Despite a court order to turn over even "borderline" Brady evidence, Valder failed to provide the defense with exculpatory material, including the Spartin lie detector results and the amended statement of one witness denying any knowledge that REI officials were aware of the kickbacks. The district court granted Moore's motion for judgment of acquittal at the close of the government's case, stating that "[m]uch of what the government characterizes as incriminatory evidence is not persuasive of guilt when viewed in its full context [and] some of the government's evidence is exculpatory and points toward innocent conduct...." United States v. Recognition Equip., Inc., 725 F. Supp. 587, 587-88 (D.D.C. 1989).

Moore then brought his suits against Valder and the postal inspectors under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971), and against the United States under the Federal Torts Claims Act (FTCA), see 28 U.S.C. SS 2671-2680. After proceedings unnecessary to recount, the district court dismissed the complaints and Moore appealed. This court considered whether, as the district court determined, Valder enjoyed absolute immunity from civil liability for malicious prosecution and for retaliatory prosecution.1 See Moore, 65 F.3d at 192-95. Relying on the Supreme Court's distinction between a prosecutor's role as an advocate and his conduct as an investigator, see Imbler v. Pachtman, 424 U.S. 409 (1976), Burns v. Reed, 500 U.S. 478 (1991), Buckley v. Fitzsimmons, 509 U.S. 259 (1993), the court decided that absolute immunity shielded some, but not all, of Valder's conduct. Absolute immunity protected Valder from liability for his "decision to prosecute Moore," "for allegedly concealing exculpatory evidence from the grand jury," "for allegedly manipulating evidence before the grand jury to create a false impression of what Moore knew about the alleged fraudulent schemes," and for failing to disclose exculpatory material before trial. 65 F.3d at 194.But absolute immunity did not apply to Valder's "[i]ntimidating and coercing witnesses into changing their testimony" or "disclosing grand jury information to unauthorized third parties." Id. at 194-95.

With respect to Moore's claims under the Federal Tort Claims Act, the court took note of the FTCA's "discretionary function" exception, which protects the government from liability for "the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government...." 28 U.S.C. S 2680(a). The following alleged conduct fell within the exception: "Deciding whether to prosecute, assessing a witness's credibility to ensure that he is giving an accurate and complete account of what he knows, identifying the evidence to submit to the grand jury and determining whether information is 'exculpatory' and 'material' and therefore must be disclosed pursuant to a Brady request." 65 F.3d at 197. "Disclosing grand jury testimony to unauthorized third parties, however, is not a discretionary activity nor is it inextricably tied to matters requiring the exercise of discretion." Id.

On remand, Valder moved for summary judgment on the retaliatory prosecution claim, contending that Moore could not make out an essential element--that he brought the prosecution at least in part to retaliate against Moore's First Amendment activity--because absolute immunity protected his decision to prosecute Moore. The district court agreed and granted Valder's motion. See Moore v. Valder, No. 92CV-2288, memorandum opinion at 17-24 (D.D.C. Feb. 5, 1998) ("mem. op.").

As to the FTCA claims, the district court determined that only one aspect of Moore's complaint survived this court's application of the discretionary function exception--namely, the claim that "AUSA Valder and the Postal Inspectors violated Federal Rule of Criminal Procedure 6(e)(2) ... by giving Spartin and former Postmaster General Paul Carlin access to the Grand Jury testimony of other witnesses for the purpose of influencing Spartin's testimony and for the apparent purpose of assisting Carlin, a private plaintiff, to pursue civil litigation...." FTCA Complaint p 26. Moore argued that these two grand jury disclosures were sufficient to make out his malicious prosecution and abuse-of-process claims. Under the FTCA, however, claims of malicious prosecution and abuse of process can only arise from the conduct of "investigative or law enforcement officers of the United States government." See 28 U.S.C. S 2680(h). " '[I]nvestigative or law enforcement officer' means any officer of the United States who is empowered by law to execute searches, to seize evidence, or to make arrests for violations of Federal law." Id. Postal inspectors are so empowered, see 39 C.F.R. S 233.1, but the district court concluded that federal prosecutors are not, see mem. op. at 32 & n.21 (citing Bernard v United States, 25 F.3d 98 (2d Cir. 1994); Gray v. Bell, 542 F. Supp. 927, 932 (D.D.C. 1982), aff'd, 712 F.2d 490 (D.C. Cir. 1983)). The district court then ruled that the unprotected conduct of the postal inspectors did not establish a malicious prosecution or abuse-of-process claim and granted judgment in favor of the United States under Federal Rule of Civil Procedure 12(c). See mem. op. at 32-43.

II.

Two of the elements of a claim of retaliatory prosecution are "first, that the conduct allegedly retaliated against or sought to be deterred was constitutionally protected, and, second, that the State's bringing of the criminal prosecution was motivated at least in part by a purpose to retaliate for or to deter that conduct." Haynesworth v. Miller, 820 F.2d 1245, 1256 n.93 (D.C. Cir. 1987) (quoting Wilson v. Thompson, 593 F.2d 1375, 1387 (5th Cir. 1979)). Moore thinks the ground of the district court's dismissal of his claim--that absolute immunity protected Valder with respect to his decision to prosecute--contravened this court's initial...

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