Moore v. Hartman

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued April 16, 2009 Decided July 7, 2009

No. 08-5370

WILLIAM G. MOORE, JR.,
APPELLANT

v.

MICHAEL HARTMAN, ET AL.,
APPELLEES

Consolidated with 08-5371

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
(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.
 3

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 (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
 4

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
 5

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.

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
 6

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
district court’s view, the only way for appellant to overcome the
presumption of probable cause was to “allege misconduct or
irregularities in the grand jury proceeding sufficient to call into
question the validity of the indictment.” Because Moore failed
to present any evidence that caused the court to question the
validity of the indictment, the district court granted the
inspectors’ summary judgment motions as to both the retaliatory
and malicious prosecution claims. Moore appealed.
 7

On appeal, Moore argues that the district court erred in
deciding that a grand jury indictment conclusively establishes
probable cause as a matter of law in a subsequent civil action for
retaliatory and malicious prosecution. Moore contends that the
district court adopted the wrong legal standard and gave the
indictment greater legal weight than it actually has in a civil suit
for damages. Instead, Moore argues, the district court should
have held that a valid indictment is merely prima facie,
rebuttable evidence of probable cause. Under this standard,
Moore asserts that the record evidence rebuts the prima facie
showing of probable cause created by the indictment, thereby
raising an issue of fact as to whether probable cause existed.

The lack of probable cause is an essential element in
both retaliatory prosecution and malicious prosecution claims.
See Morowitz v. Marvel, 423 A.2d 196, 198 (D.C. 1980)
(malicious prosecution requires (1) that the underlying suit was
resolved in appellant’s favor; (2) malice on the defendant’s part;
(3) lack of probable cause for the underlying prosecution; and
(4) special injury); see also Moore IV, 547 U.S. at 265-66 (lack
of probable cause is an essential element of retaliatory
prosecution claim). We therefore focus our review on this
element.

II. ANALYSIS

A.

We review a summary judgment determination de novo.
Adams v. Rice, 531 F.3d 936, 942 (D.C. Cir. 2008). Summary
judgment may be granted only where there is no genuine issue
as to any material fact and the moving party is entitled to a
judgment as a matter of law. Fed. R. Civ. P. 56(c); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). A
genuine issue of fact derives from the “evidence [being] such
 8

that a reasonable jury could return a verdict for the nonmoving
party,” id. at 248, resolving all ambiguities and drawing all
factual inferences in favor of the nonmoving party. Id. at 255.
The nonmoving party cannot defeat summary judgment by
“simply show[ing] that there is some metaphysical doubt as to
the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). “[A]ll that is required [from
a nonmoving party] is that sufficient evidence supporting the
claimed factual dispute be shown to require a jury or judge to
resolve the parties’ differing versions of the truth at trial.” First
Nat’l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288-89
(1968). “If material facts are at issue, or, though undisputed, are
susceptible to divergent inferences, summary judgment is not
available.” Kuo-Yun Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir.
1994).

B.

The controlling issue in this appeal is whether the
evidence of record, taken in the light most favorable to the
appellant, raises a genuine issue of material fact as to whether
the government lacked probable cause in obtaining the
indictment of appellant. In resolving this issue, we must
determine whether and to what extent a grand jury indictment
gives rise to a presumption that probable cause exists in the
context of a retaliatory prosecution action. Appellant first
argues that the district court should have held that a valid
indictment is merely prima facie, rebuttable evidence of
probable cause. He then argues that the record evidence rebuts
the prima facie showing of probable cause created by the
indictment, thereby requiring a jury to decide the issue of
whether probable cause existed.
 9

Presumption of Probable Cause

We have not previously decided what presumption a
grand jury indictment is afforded in a Bivens retaliatory
prosecution claim. Appellant points out, however, that several
of our sister circuits have held that a grand jury indictment is
prima facie evidence of probable cause which may be rebutted.
See, e.g., White v. Frank, 855 F.2d 956, 961-62 (2d Cir. 1988)
(“[T]hough an indictment by a grand jury is generally
considered prima facie evidence of probable cause in a
subsequent civil action for malicious prosecution, this
presumption may be rebutted by proof that the defendant
misrepresented, withheld, or falsified evidence.”); see also
Gonzalez Rucci v. INS, 405 F.3d 45, 49 (1st Cir. 2005)
(generally an indictment establishes probable cause, but there is
an exception if law enforcement officers knowingly presented
false testimony to the grand jury); Rothstein v. Carriere, 373
F.3d 275, 282-83 (2d Cir. 2004) (grand jury indictment creates
presumption of probable cause; may be rebutted if plaintiff
“establish[es] that the indictment was produced by fraud,
perjury, the suppression of evidence or other police conduct
undertaken in bad faith”); Riley v. City of Montgomery,
Alabama, 104 F.3d 1247, 1254 (11th Cir. 1997) (“[A]n
indictment is prima facie evidence of probable cause which can
be overcome by showing that it was induced by misconduct.”);
Rose v. Bartle, 871 F.2d 331, 353 (3d Cir. 1989) (grand jury
indictment “constitutes prima facie evidence of probable cause
to prosecute, but . . . may be rebutted by evidence that the
presentment was procured by fraud, perjury or other corrupt
means”); Hand v. Gary, 838 F.2d 1420, 1426 (5th Cir. 1988)
(“obtaining an indictment is not enough to insulate state actors
from an action for malicious prosecution under § 1983” when
“finding of probable cause remained tainted by the malicious
actions of the government officials”); Harris v. Roderick, 126
F.3d 1189, 1198 (9th Cir. 1997) (same; explicitly adopts
 10

reasoning of Hand). Cf. Awabdy v. City of Adelanto, 368 F.3d
1062, 1067 (9th Cir. 2004) (in a later civil action for malicious
prosecution, a judicial finding of probable cause in a criminal
proceeding is prima facie evidence of probable cause which may
be rebutted by a “showing that the criminal prosecution was
induced by fraud, corruption, perjury, fabricated evidence, or
other wrongful conduct undertaken in bad faith”); Hinchman v.
Moore, 312 F.3d 198 (6th Cir. 2002) (a judicial finding of
probable cause in a criminal proceeding does not bar a future
malicious prosecution claim where plaintiff alleges the police
officer supplied false information to establish probable cause);
DeLoach v. Bevers, 922 F.2d 618, 620-21 (10th Cir. 1990)
(despite judicial determination of probable cause, police officer
“cannot hide behind the decisions of others involved in
[plaintiff’s] arrest and prosecution if she deliberately conceals
and mischaracterizes exculpatory evidence”). We join these
other circuits in their unanimous holding.

The district court’s reliance on the Supreme Court’s
decisions in Gerstein v. Pugh, 420 U.S. 103 (1975), and Ex
parte United States, 287 U.S. 241 (1932), as well as our decision
in United States v. King, 482 F.2d 768 (D.C. Cir. 1973), to reach
its conclusion that an indictment is conclusive evidence of
probable cause in a subsequent retaliatory prosecution claim is
misplaced. Admittedly, each of these cases states that the return
of an indictment conclusively establishes probable cause. See
Gerstein, 420 U.S. at 117 n.19; Ex parte United States, 287 U.S.
at 250; King, 482 F.2d at 776. Nevertheless, these cases arose
within the context of a criminal case, and not within a civil
retaliatory prosecution action brought in response to an allegedly
improper criminal prosecution. See Gerstein, 420 U.S. at 106-
07 (defendant arrested on an information seeking judicial
determination of probable cause for detention prior to his
criminal trial); Ex parte United States, 287 U.S. at 245
(prosecutor seeking to set aside a federal district court’s refusal
 11

to issue a bench warrant to arrest defendant after a grand jury
indictment was issued); King, 482 F.2d at 770 (criminal
defendant at trial attempted to reopen his preliminary hearing,
after an indictment was issued against him). Nothing in these
cases requires that their holdings control in a civil action such as
this in which an essential element of the cause of action is a lack
of probable cause. In the criminal context, if a case has been
tried, it is logical to presume that the question of probable cause
has been subsumed in the jury verdict—particularly when guilt
has been established beyond a reasonable doubt. In the odd case
of Ex parte United States, there was no other way to test the
proposition of probable cause than to let the criminal case go
forward. In either event, probable cause was deemed to be
established for the purpose of proceeding to criminal
adjudication, and not for the purpose of contesting the existence
of the elements of a later civil action for malicious or retaliatory
prosecution.

Even looking to the criminal precedents, we recognized
in King that there were limits to the presumption that an
indictment conclusively establishes probable cause. A court
may look beyond an indictment to “protect the accused from
harmful consequences” when his constitutional rights are
violated, even though doing so might have a dispositive impact
on the question of probable cause. Id. at 776. “[T]he primary
purpose of the Bivens doctrine is to remedy abuses by those who
act as agents for the sovereign.” Zerilli v. Evening News Ass’n,
628 F.2d 217, 224 (D.C. Cir. 1980) (citing Bivens, 403 U.S. at
392). Therefore, even in light of King, the “conclusive existence
of probable cause” established by the indictment must give way
if, as Moore alleges, the accused’s constitutional rights have
been violated.

The standard we adopt today is also consistent with the
Supreme Court’s opinion in Moore IV. Indeed, in Moore IV, the
 12

Court held that appellant need only show “some evidence” of a
lack of probable cause. Moore IV, 547 U.S. at 263. The Court
recognized that “it would be unrealistic to expect a prosecutor
to reveal his mind.” Id. at 264. Accordingly, the Court noted
that appellant may satisfy his burden by looking to “a distinct
body of highly valuable circumstantial evidence available . . .
showing whether there was or was not probable cause to bring
the criminal charge.” Id. at 261. These statements support our
interpretation that the Court viewed the indictment as prima
facie–not conclusive–evidence of probable cause.

For these reasons, the district court was incorrect in
holding that an indictment is conclusive evidence of probable
cause in a retaliatory prosecution action.

Because the district court erred in defining the proper
presumption of probable cause established by the grand jury
indictment, it remains to be determined whether the evidence
appellant put forth is sufficient to overcome this presumption
under the proper standard. The imposition of a prima facie
standard creates a rebuttable presumption that will stand until
the appellant introduces sufficient evidence to negate it. Frito-
Lay, Inc. v. Willoughby, 863 F.2d 1029, 1033 (D.C. Cir. 1988).
While the de novo nature of our review would make it possible
for us to make the determination in the first instance, in the
interest of both judicial efficiency and assuring a full and fair
hearing to both parties, we will vacate the district court’s
judgment and remand the matter for further proceedings
consistent with this opinion.

On remand, the district court will of course take into
account the rebuttable presumption in favor of probable cause,
but should also consider whether appellant has offered enough
evidence to create a genuine issue of material fact as to the
legitimacy, veracity, and sufficiency of the evidence presented
 13

to the grand jury. Given the presumption, to carry his burden he
must present evidence that the indictment was produced by
fraud, corruption, perjury, fabricated evidence, or other
wrongful conduct undertaken in bad faith. See supra pp. 9-10
(citing cases).

III. CONCLUSION

For the reasons set forth above, we hold that the district
court erred in granting summary judgment for the defendants.
We therefore vacate the judgment and remand the matter for
further proceedings consistent with this opinion.

So ordered.