Case: 15-11630 Date Filed: 09/22/2016 Page: 1 of 19
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 15-11630
Non-Argument Calendar
________________________
D.C. Docket No. 1:13-cv-23806-CMA
SIAVASH ZARGARI,
Plaintiff–Appellant,
versus
UNITED STATES OF AMERICA,
LUIS KING,
Defendants–Appellees,
JEFFREY E. CROAKE,
individually, et al.,
Defendants.
________________________
Appeal from the United States District Court
for the Southern District of Florida
________________________
(September 22, 2016)
Case: 15-11630 Date Filed: 09/22/2016 Page: 2 of 19
Before TJOFLAT, JULIE CARNES, and JILL PRYOR, Circuit Judges.
PER CURIAM:
This action arises out of the arrest and prosecution of Plaintiff Siavash
Zargari (“Plaintiff”) in connection with a scheme to fraudulently charge customers’
credit cards at Miami Beach nightclubs. A jury acquitted Plaintiff of all charges.
He then brought this pro se lawsuit for false arrest and malicious prosecution
against the United States, FBI Agents Jorge Miyar and Alex Tiguy, and Miami
Beach Police Department Officer Luis King. The district court dismissed the
United States and FBI Agents for failure to state a claim and lack of subject matter
jurisdiction. Later, the court granted summary judgment to Officer King, finding
that Plaintiff had failed to show an absence of probable cause for his arrest.
Plaintiff appeals those orders. After careful review of the record and the parties’
briefs, we affirm.
I. Background
In 2010, the FBI received a complaint that a man’s credit card had been
charged $43,000 at a Miami Beach nightclub for alcohol he did not purchase.
Officer King began working undercover at the direction of the FBI posing as a
corrupt police officer so he could gain access to the nightclubs under investigation.
He first posed as an off-duty police officer working as a doorman and security
guard at Stars Lounge. King’s investigation revealed that the co-conspirators were
2
Case: 15-11630 Date Filed: 09/22/2016 Page: 3 of 19
hiring women primarily from Latvia and Estonia who in turn would promote their
nightclubs and lure male customers from high-end hotels. Patrons were then
charged exorbitant prices for alcohol, or they were charged for items they did not
even order. According to Agent Tiguy’s arrest warrant affidavit, the clubs were
not open to the public and served only as a front for the scheme. After the victims
were brought to the club, they were encouraged to order bottles of wine and
champagne while the women pushed them to get heavily intoxicated. The victims
often were not told the price of the alcohol, or they were told no price at all. The
managers would make copies of the victims’ credit cards and driver’s licenses and
bill them up to $5,000 for bottles of wine or champagne that cost the club only $5
to $100. The co-conspirators would continue to order alcohol on behalf of the
victims without their knowledge and then surreptitiously pour the drinks and
bottles out in plants or ice buckets.
When it came time to pay the tab, some of the victims were so heavily
intoxicated that they had to be propped up long enough to sign the credit card
receipts. If the victim refused to pay his bill, the manager would explain to him
that he had agreed to purchase the alcohol, the bar had surveillance video of him
ordering the drinks, and the police would be called if he did not pay. Officer King
also threatened to arrest patrons.
3
Case: 15-11630 Date Filed: 09/22/2016 Page: 4 of 19
In October 2010, Oleg Simchuk, the main target of the investigation and
owner of Stars Lounge, fled to Russia after becoming suspicious that he was under
investigation. The FBI thus shifted their focus to other members of the conspiracy.
Co-conspirator Albert Takhalov took over Stars Lounge and continued to
perpetrate fraudulent activity. In January 2011, Takhalov decided to open a new
club through his business, Ciao Miami Beach LLC. Plaintiff was part owner of
K&S Entertainment, Inc. (“K&S”), which operated Tangia Restaurant and Lounge.
K&S subleased an area of the restaurant to Ciao Miami Beach, which opened and
operated Tangia Club on the restaurant’s premises. K&S and Ciao Miami Beach
entered into a management agreement so Tangia Club could use K&S’s liquor
license under K&S’s name, but Plaintiff alleges that he was not a principal or
employee of the club. Officer King worked security at Tangia Club and continued
to observe various fraudulent activities.
On April 5, 2011, Agent Tiguy obtained an arrest warrant for the ringleaders
and other co-conspirators of the scam, including Plaintiff. A grand jury later
indicted Plaintiff and seventeen others in connection with the fraud ring. Plaintiff
was charged with one count of conspiracy to commit wire fraud, eight counts of
wire fraud, and one count of conspiracy to commit fraud in connection with
immigration documents. Following a jury trial, Plaintiff was acquitted of all
charges.
4
Case: 15-11630 Date Filed: 09/22/2016 Page: 5 of 19
Plaintiff filed this pro se lawsuit on October 22, 2013. In Plaintiff’s Second
Amended Complaint, he sued the United States under the Federal Tort Claims Act
(“FTCA”), 28 U.S.C. § 1346(b), based on the actions of FBI Agents Tiguy and
Miyar and Miami Beach Police Officer King (Count 1). Plaintiff also alleged false
arrest and malicious prosecution claims against Agents Tiguy (Count 2) and Miyar
(Count 3) under Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971). Finally, Plaintiff sued Officer King for false
arrest and malicious prosecution under Bivens, 42 U.S.C. § 1983, and Florida state
law (Counts 4, 5 and 6). The gravamen of Plaintiff’s claims is that Defendants lied
to the magistrate judge and grand jury and fabricated evidence to establish
probable cause for Plaintiff’s arrest and indictment even though they knew Plaintiff
had not committed any crimes.
The district court dismissed the FBI Agents and the United States for failure
to state a claim and for lack of subject matter jurisdiction. The court found that
Plaintiff failed to plausibly allege that Agents Tiguy and Miyar violated a clearly
established constitutional right. For that reason, the FTCA claim premised on
Tiguy and Miyar’s actions also failed. And because Officer King was not a federal
law enforcement officer, the court lacked subject matter jurisdiction over
Plaintiff’s FTCA claim premised on King’s actions. Later, the court granted
summary judgment to King. The court found that Plaintiff had failed to show an
5
Case: 15-11630 Date Filed: 09/22/2016 Page: 6 of 19
absence of probable cause or that King intentionally or recklessly made false
statements to secure an indictment. Plaintiff appeals.
II. Discussion
A. False Arrest and Malicious Prosecution Claims against Agents Tiguy
and Miyar 1
We review the grant of qualified immunity on a motion to dismiss de novo.
Chesser v. Sparks, 248 F.3d 1117, 1121 (11th Cir. 2001). We accept the facts
alleged in the complaint as true and draw all reasonable inferences in Plaintiff’s
favor. Id. While we liberally construe pro se pleadings, this leniency does not
give courts license to serve as de facto counsel or permit them to rewrite an
otherwise deficient pleading. Campbell v. Air Jamaica Ltd., 760 F.3d 1165, 1168–
69 (11th Cir. 2014).
Plaintiff levels several accusations against Agents Tiguy and Miyar: Tiguy
signed a probable cause affidavit that contained false statements; Miyar and King
1
Although the parties discuss both false arrest and malicious prosecution, technically Plaintiff’s
Fourth Amendment claim is more closely analogous to a claim for malicious prosecution. See
Uboh v. Reno, 141 F.3d 1000, 1002–03 (11th Cir. 1998) (explaining that Fourth Amendment
violation analogous to common law tort of malicious prosecution is cognizable Bivens claim).
This Court has recognized that when a person is arrested pursuant to a warrant—regardless of the
validity of that warrant—confinement is imposed pursuant to legal process and thus the proper
claim is for malicious prosecution (wrongful detention pursuant to legal process) rather than for
false arrest (wrongful detention without process). See Whiting v. Traylor, 85 F.3d 581, 585 (11th
Cir. 1996); see also Calero-Colon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995). Because
Plaintiff was arrested pursuant to a warrant, we characterize Plaintiff’s alleged Fourth
Amendment violation as a malicious prosecution claim. In either case, though, the plaintiff must
show a lack of probable cause for his arrest or prosecution. See Kingsland v. City of Miami, 382
F.3d 1220, 1234 (11th Cir. 2004); Marx v. Gumbinner, 905 F.2d 1503, 1505 (11th Cir. 1990).
As we explain below, Defendants had probable cause to prosecute Plaintiff, so his Fourth
Amendment claim fails when construed either way.
6
Case: 15-11630 Date Filed: 09/22/2016 Page: 7 of 19
tried to set him up to look like he was bribing a federal agent; the Agents misled
the magistrate judge by failing to mention that Simchuk had fled to Russia; and the
Agents unnecessarily prolonged the investigation. The FBI Agents argue that they
are entitled to qualified immunity because, even accepting Plaintiff’s allegations as
true, they did not violate a clearly established constitutional right.
1. Qualified Immunity and Malicious Prosecution
Qualified immunity protects government officials performing discretionary
functions from suits in their individual capacities unless their conduct “violate[s]
clearly established statutory or constitutional rights of which a reasonable person
would have known.” Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982). A
defendant official is entitled to qualified immunity unless a plaintiff can
demonstrate both that the officer committed a constitutional violation and that the
right at issue was “clearly established” at the time of the alleged misconduct.
Singletary v. Vargas, 804 F.3d 1174, 1180 (11th Cir. 2015).
To establish a federal malicious prosecution claim, the plaintiff must prove a
violation of his Fourth Amendment right to be free from unreasonable seizures, as
well as the elements of the common law tort of malicious prosecution. Kingsland
v. City of Miami, 382 F.3d 1220, 1234 (11th Cir. 2004). Under Florida law, the
elements a plaintiff must allege include malice and an absence of probable cause to
7
Case: 15-11630 Date Filed: 09/22/2016 Page: 8 of 19
initiate the proceeding against him. 2 Id. Accordingly, the existence of probable
cause defeats a malicious prosecution claim. See Alamo Rent-A-Car, Inc. v.
Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).
“[T]he standard for determining whether probable cause exists is the same
under Florida and federal law.” Rankin v. Evans, 133 F.3d 1425, 1435 (11th Cir.
1998). Probable cause exists “where the facts and circumstances within the
collective knowledge of the law enforcement officials, of which they had
reasonably trustworthy information, are sufficient to cause a person of reasonable
caution to believe that an offense has been or is being committed.” United States
v. Pantoja-Soto, 739 F.2d 1520, 1523 (11th Cir. 1984) (quotation marks omitted).
“[T]he facts necessary to establish probable cause need not reach the standard of
conclusiveness and probability as the facts necessary to support a conviction.”
State v. Scott, 641 So.2d 517, 519 (Fla. Dist. Ct. App. 1994). To be entitled to
qualified immunity, an officer need only have had “arguable” probable cause.
Kingsland, 382 F.3d at 1232. Thus, Plaintiff “must demonstrate that no reasonable
officer could have found probable cause under the totality of the circumstances.”
2
The common law elements of malicious prosecution are: “(1) an original criminal or civil
judicial proceeding against the present plaintiff was commenced or continued; (2) the present
defendant was the legal cause of the original proceeding against the present plaintiff as the
defendant in the original proceeding; (3) the termination of the original proceeding constituted a
bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an
absence of probable cause for the original proceeding; (5) there was malice on the part of the
present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding.”
Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla. 1994).
8
Case: 15-11630 Date Filed: 09/22/2016 Page: 9 of 19
Id. But qualified immunity still applies if the officer reasonably but mistakenly
believed that probable cause was present. Grider v. City of Auburn, 618 F.3d
1240, 1256 (11th Cir. 2010).
In addition, when an “alleged Fourth Amendment violation involves a search
or seizure pursuant to a warrant, the fact that a neutral magistrate has issued a
warrant is the clearest indication that the officers acted in an objectively reasonable
manner.” Messerschmidt v. Millender, 132 S. Ct. 1235, 1245 (2012); cf. Kelly v.
Serna, 87 F.3d 1235, 1241 (11th Cir. 1996) (stating that under Georgia law an
“indictment constitutes prima facie evidence that probable cause existed for the
prosecution”). Even so, a plaintiff may still overcome qualified immunity by
showing that the warrant was “so lacking in indicia of probable cause as to render
official belief in its existence entirely unreasonable.” Messerschmidt, 132 S. Ct. at
1245 (quoting United States v. Leon, 468 U.S. 897, 923 (1984)). Furthermore, we
have held that officers are not entitled to qualified immunity if they “fabricated or
unreasonably disregarded certain pieces of evidence to establish probable cause or
arguable probable cause.” Kingsland, 382 F.3d at 1233.
2. Analysis
Plaintiff first challenges the existence of probable cause by alleging that the
affidavit Agent Tiguy signed when he obtained an arrest warrant from the
magistrate judge contained several false statements. Most of Plaintiff’s allegations
9
Case: 15-11630 Date Filed: 09/22/2016 Page: 10 of 19
are conclusory, but he does specifically point to three subparagraphs in paragraph
22 of the affidavit:
h) On March 19, 2011, [Plaintiff] contacted [Officer King] about a
victim who was disputing his bill at a club and wanted him
arrested.
i) On March 26, 2011, [Plaintiff] took a cell phone from a victim
at the club and later stated that he had done so in order to use it
as evidence against the victim challenging the charges with his
credit card company.
j) On February 20, 2011, [Officer King] overheard TAKHALOV
and [Plaintiff] at Tangia Club, laughing about how they give
customers shots of vodka to get them drunk and girls only get
water and commenting that K. TAKHALOV must be careful
not to mix it up.
As Agent Tiguy points out, the affidavit stated that Officer King was the one
who actually witnessed these events while he was working undercover, not Tiguy.
“[B]oth the United States Supreme Court and the Florida Supreme Court have
allowed the collective knowledge of the investigating officers to be imputed to
each participating officer.” Terrell v. Smith, 668 F.3d 1244, 1252 (11th Cir. 2012)
(citing United States v. Hensley, 469 U.S. 221, 232 (1985); Voorhees v. State, 699
So.2d 602, 609 (Fla. 1997); and Dewberry v. State, 905 So.2d 963, 967 (Fla. Dist.
Ct. App. 2005)). Tiguy was therefore entitled to rely on “information supplied by
other officers,” Voorhees, 699 So.2d at 609, in determining whether there was
probable cause to arrest Plaintiff. Even if King knew these events did not take
place, his lies cannot support an inference that Tiguy had any reason to believe that
10
Case: 15-11630 Date Filed: 09/22/2016 Page: 11 of 19
King was untrustworthy absent plausible factual allegations to that effect. See
Franks v. Delaware, 438 U.S. 154, 165 (1978) (a probable cause affidavit need not
be “‘truthful’ in the sense that every fact recited in the warrant affidavit is
necessary correct, for probable cause may be founded upon hearsay and upon
information received from informants, as well as upon information within the
affiant’s own knowledge that sometimes must be garnered hastily”). Accordingly,
Plaintiff’s conclusory allegations that Tiguy lied in the affidavit do not establish
that Tiguy unreasonably believed probable cause existed.
Next, Plaintiff argues that the Agents tried to frame him for bribery by
editing a video to make it look like Plaintiff was present when Takhalov paid
Officer King a bribe. In fact, he says, he was in the restroom when the bribe was
allegedly paid and entered the room much later, even though the video was
shortened to show him in the room immediately after the bribe was paid. But
Plaintiff does not allege that this video was used to obtain probable cause for his
arrest or indictment. He mentions that the video was shown at trial and states only
that Defendants “plausibly showed this clip to [the] magistrate judge to get [a]
criminal complaint signed.” The probable cause affidavit and indictment do not
mention a video. What’s more, Plaintiff was not even charged with bribery, unlike
Takhalov, yet Plaintiff does not explain how this video would have been used to
11
Case: 15-11630 Date Filed: 09/22/2016 Page: 12 of 19
support probable cause even if it had been shown to the magistrate judge or grand
jury. 3 These allegations fail to state a claim.
Plaintiff further argues that Agents Tiguy and Miyar misled the magistrate
judge by not telling him that Simchuk, the main target of the investigation, had fled
to Russia, and that the Agents had unnecessarily prolonged the investigation.
Plaintiff fails to explain why either of these allegations proves that the Agents
fraudulently manufactured probable cause. To the extent Simchuk’s flight to
Russia bore on Plaintiff’s culpability, “[t]he government is under no duty to bring
exculpatory evidence to the grand jury’s attention.” United States v. Waldon, 363
F.3d 1103, 1109 (11th Cir. 2004). And Plaintiff cites no cases holding that
stretching out an investigation violates a clearly established constitutional right.
In short, Plaintiff fails to plausibly allege that the probable cause affidavit
was “so lacking in indicia of probable cause as to render official belief in its
existence entirely unreasonable.” Messerschmidt, 132 S. Ct. at 1245 (quoting
United States v. Leon, 468 U.S. 897, 923 (1984)). After all, the FBI Agents had
3
While Plaintiff alleges that Tiguy falsely stated that Plaintiff participated in bribery, the
affidavit states merely that Plaintiff was present in the club at the time of the alleged bribe, not
that Plaintiff was a party to the transaction. Therefore, the affidavit does not contain any
fraudulent statements about Plaintiff’s participation in bribery.
Moreover, Plaintiff argues that Defendants doctored audio transcripts of Officer King’s
undercover recordings. It is unclear, however, how the discrepancies in the “edited” and
“corrected” transcripts fraudulently established probable cause—and Plaintiff does not even
allege that the magistrate judge ever saw these transcripts when he signed the arrest warrant or
that the transcripts were presented to the grand jury.
12
Case: 15-11630 Date Filed: 09/22/2016 Page: 13 of 19
reasonably credible reports from Officer King that Plaintiff was present at Tangia
Club and participated in its operations by pressuring customers to pay their bills.
Plaintiff further alleges that he was a part owner and an officer of K&S, which let
Takhalov manage part of its restaurant so Takhalov could open Tangia Club using
K&S’s liquor license. On these facts, we cannot conclude that no reasonable
officer would have believed that a warrant should issue. See id. And Plaintiff’s
allegations do not support an inference that the FBI Agents were motivated by
malice, either. See Alamo Rent-A-Car, 632 So.2d at 1355. Consequently,
Plaintiff’s malicious prosecution claims against Agents Tiguy and Miyar fail.
B. FTCA Claims Based on Tiguy, Miyar, and King’s Actions
Plaintiff sues the United States under the FTCA, 28 U.S.C. § 1346(b), for
the actions of Agents Tiguy and Miyar described above and for those of Officer
King. Because Plaintiff fails to state a claim against Tiguy and Miyar, the
allegations against them cannot support the Government’s liability under the
FTCA, either. As for Officer King, the United States argues that his actions cannot
be a basis for federal liability because he was not a federal law enforcement officer
and, as such, the court lacks subject matter jurisdiction over this claim. 4
4
We review de novo a district court’s order dismissing a claim for lack of subject matter
jurisdiction. Ochran v. United States, 117 F.3d 495, 499 (11th Cir. 1997).
13
Case: 15-11630 Date Filed: 09/22/2016 Page: 14 of 19
The United States has waived sovereign immunity for claims of malicious
prosecution only when the acts are committed by “investigative or law
enforcement officers of the United States Government.” 28 U.S.C. § 2680(h). The
FTCA defines a federal law enforcement officer as “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. Plaintiff argues that Officer King was
acting as a law enforcement officer of the United States because he was working
undercover in an FBI investigation. Be that as it may, Defendants submitted
affidavits 5 from both the Administrative Officer and Assistant Special Agent in
Charge of the FBI’s Miami Division making clear that Officer King was never an
employee of the FBI and was never deputized to an FBI task force. This means
that King was never authorized to exercise statutory federal law enforcement
powers, such as carrying firearms, executing search and arrest warrants, and
seizing property, see 21 U.S.C. § 878(a), as required under the FTCA, 28 U.S.C.
§ 2680(h). Because King was not a federal law enforcement officer, this Court
lacks subject matter jurisdiction over Plaintiff’s suit against the United States based
on King’s actions. The district court properly dismissed the FTCA claim.
5
When a defendant makes a factual attack on subject matter jurisdiction, a court may consider
extrinsic evidence and satisfy itself that it has power to hear the case as long as the issues do not
implicate an element of the cause of action. Lawrence v. Dunbar, 919 F.2d 1525, 1529 (11th
Cir. 1990).
14
Case: 15-11630 Date Filed: 09/22/2016 Page: 15 of 19
C. Malicious Prosecution Claims against Officer King
Finally, we address the district court’s grant of summary judgment to Officer
King on Plaintiff’s malicious prosecution claims under Bivens, § 1983, and Florida
state law. We review de novo a grant of summary judgment, viewing the evidence
in the light most favorable to the non-moving party. Chapman v. AI Transp., 229
F.3d 1012, 1023 (11th Cir. 2000) (en banc). Summary judgment is appropriate
when “there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
As explained above, King was not a federal law enforcement officer, so
§ 1983, not Bivens, is the appropriate vehicle to bring suit against a state officer for
violation of a federal constitutional right. See Abella v. Rubino, 63 F.3d 1063,
1065 (11th Cir. 1995). In any event, “courts generally apply § 1983 law to Bivens
cases,” id., so our analysis is the same. And, because a Fourth Amendment
malicious prosecution claim looks to the common law elements of malicious
prosecution, Kingsland, 382 F.3d at 1234, our analysis of these elements applies to
both the § 1983 and Florida state-law claims.
Again, two of the necessary elements of a malicious prosecution claim
include malice and an absence of probable cause. See Alamo Rent-A-Car, 632
So.2d at 1355. Plaintiff argues that the district court erred in granting summary
judgment to Officer King because Plaintiff showed an absence of probable cause,
15
Case: 15-11630 Date Filed: 09/22/2016 Page: 16 of 19
King was liable for not stopping the investigation, and the allegations in the
probable cause affidavit were false. Plaintiff’s arguments fail because the
undisputed evidence demonstrates that there was probable cause for his
prosecution. There was evidence that Plaintiff owned half of K&S Entertainment,
which entered into a management agreement with Ciao Miami Beach to operate
Tangia Club and use K&S’s liquor license. What’s more, Plaintiff acknowledged
that K&S received 40% of the profits from Tangia Club’s alcohol sales while
splitting expenses with Ciao Miami Beach. Although he denies participating in the
fraud or the operations of the club, he acknowledges being present at the club and
was recorded by Officer King interacting with patrons and co-conspirators. Given
the totality of the circumstances, there was probable cause to believe Plaintiff was
involved in the conspiracy.
Plaintiff insists that King knew he was not a participant in the fraud and
helped fabricate evidence against him. But unsupported and conclusory assertions
cannot defeat a motion for summary judgment. See Ellis v. England, 432 F.3d
1321, 1327 (11th Cir. 2005). Plaintiff further argues that a couple of co-
conspirators told King that Plaintiff did not “know about the concept of their
business.” Once again, however, an officer assesses probable cause based on the
totality of the circumstances and in reliance on “reasonably trustworthy
information.” Kingsland, 382 F.3d at 1226 (quoting Rankin, 133 F.3d at 1435). It
16
Case: 15-11630 Date Filed: 09/22/2016 Page: 17 of 19
was not unreasonable for Officer King to disregard the statements of co-
conspirators when the totality of the circumstances suggested that Plaintiff was a
participant in the business, profited from it, and therefore likely was aware of the
scheme.
Plaintiff also argues that King is liable for not stopping the investigation and
letting fraudulent activity take place at Plaintiff’s club so King could tie him to the
conspiracy. Plaintiff’s allegation that King essentially wanted to frame Plaintiff is
not supported by any facts in the record. Again, Plaintiff cites no authority holding
that prolonging an investigation and continuing to observe illegal activity violates
clearly established law.
Last, Plaintiff contends that King is responsible for the false allegations in
Agent Tiguy’s probable cause affidavit. Yet there is no evidence that King
intentionally lied to the FBI Agents to secure an arrest and indictment. Plaintiff
denies that he contacted King about a customer he wanted arrested for disputing a
bill, as the affidavit alleges. There was an incident, however, that King recorded
where King, Plaintiff, and a co-conspirator confronted a patron who was contesting
a charge for a bottle of wine. One co-conspirator told King to “please take him
away.” King ordered the patron to put his hands behind his back if he was not
going to pay the bill. When the patron protested and asked “what did I do wrong,”
Plaintiff retorted, “Why you lying?” King continued to press the patron until he
17
Case: 15-11630 Date Filed: 09/22/2016 Page: 18 of 19
agreed to pay for the bottle of wine. Even if Plaintiff did not tell King to arrest the
patron, the undisputed evidence places Plaintiff in the middle of a fraudulent
transaction where a patron was coerced into paying for a bottle of wine he did not
order.
Plaintiff next denies that he took a cell phone from a victim to use as
evidence if the victim disputed his credit card charges. Officer King testified that
he was told by the female co-conspirators that surveillance video from the club
showed Plaintiff taking a cell phone from a patron. Plaintiff argues that he told
King he found the cell phone the day after the phone apparently went missing, and
he wanted to punish the women who apparently stole the patron’s phone. King
thus had evidence that Plaintiff took a phone (though King heard conflicting
reasons why Plaintiff took it), so the assertion in the affidavit was not completely
baseless such that a jury could infer malice. See Alamo Rent-A-Car, 632 So.2d at
1357 (under Florida law, malice “may be inferred from, among other things, a lack
of probable cause, gross negligence, or great indifference to persons, property, or
the rights of others”).6 More to the point, if we disregard the cell phone
allegations, there was still probable cause for Plaintiff’s prosecution.
6
The final disputed statement in the affidavit is that King overheard Takhalov and Plaintiff
laughing about how the customers got shots of vodka while the female co-conspirators got water.
Plaintiff acknowledged that Tangia Club gave complimentary shots to customers, which he says
is common in the bar industry, and that the bartenders usually drank watered-down shots with the
customers. So the substance of the statement was not misleading, nor does it show malice or a
lack of probable cause.
18
Case: 15-11630 Date Filed: 09/22/2016 Page: 19 of 19
In sum, even though Plaintiff offers numerous explanations and arguments
for his innocence, on this record we find there was probable cause to believe
Plaintiff was part of the conspiracy when there was evidence Plaintiff participated
in the operations of the club and shared in the club’s profits, and a magistrate judge
and grand jury found probable cause to arrest and indict him. 7 Cf. Messerschmidt,
132 S. Ct. at 1245. Plaintiff also fails to point to any evidence of Officer King’s
malice. For these reasons, the district court properly granted summary judgment to
Officer King.
III. Conclusion
For all the above reasons, we affirm the district court’s orders dismissing the
claims against the United States and the FBI Agents and granting summary
judgment to Officer King.
AFFIRMED.
7
Plaintiff asserts that Officer King received a 7% contingency fee from the forfeiture proceeds
related to this investigation in violation of his due process rights. Plaintiff’s self-created
transcript in his brief of one of King’s undercover recordings does not support such an inference.
According to Plaintiff, King told an FBI Agent, “[Y]ou defiantly [sic] don’t want to do that,
Daryl ([K]ing’s captain) cut me 7%[.] If we buy all their sh-t, if we go down their time we buy
all their sh-t, we link together that way.” We cannot decipher these statements, so we cannot
infer that Officer King received a contingency fee.
19