MEMORANDUM OPINION
TABLE OF CONTENTS
I. BACKGROUND ... 5
A. Factual Overview ... 5
B. Procedural History ... 10
1. Plaintiffs Initiation of Two Lawsuits ... 11
2. Key Judicial Decisions ... 12
3. Pre-Trial Motions in Limine ... 26
4. Trial ... 27
II. LEGAL STANDARDS ... 29
A. Law Applicable to FTCA Claim ,.. 29
1. Federal -Rule of Civil Procedure 52(a) Applicable to Findings and Conclusions by the Court ... 30
B. Federal Rule of Civil Procedure 59 Applicable to Plaintiffs Motion for New Trial ... 31 -
III. FINDINGS OF FACT FOR PLAINTIFF’S FTCA CLAIM ... 34
A. Initiation and Progression of Investigation into Illegal Scheme ... 34
1. Brief Overview of Pertinent Components of USPS ... 34
2. USPS Automation Program ... 36
, 3. Summer of 1985' Initiation of Investigation of BOG Vice Chairman Voss ... 39
4. Plaintiff and REI’s Dealings with USPS Through Summer 1985 ... 44
B.’ Investigation of Plaintiff ... 52
2. November 20, 1985 Interview ■ of Plaintiff and Subordinates ... 54
3. Postal Inspectors Learn of Relationship between REI and GÁI .... 55
4. January 6, 1986 Firing of Postmaster General Carlin ... 56
5. Postal Inspection. Service Request for Initiation of Grand Jury. Investigation ... 57
6. April 1986 Confession of William Spartin About Illegal Scheme ... 59
7. April 8, 1986 Postal Inspector Interview with Plaintiffs Subordinates ... 62
8. May 1986 Guilty Plea and Cooperation by Vice Chairman Voss ... 63
9. July 25-26, 1986 Follow-up Interviews of Plaintiff and Subordinates and Review of Plaintiffs Notebooks ... 68
10. Subsequent Interviews of Co-Conspirators ... 70
C, Consideration of Indictment by D.C. U.S. Attorney’s Office ... 80
D. Plaintiffs Alleged Damages ... 85
IV.CONCLUSIONS OF LAW ON PLAINTIFF’S FTCA CLAIM ... 90
A. Postal Inspectors Did Not Procure Indictment Against Plaintiff ... 91
1. . Postal Inspectors Did Not Violate Rule 6(e) ... 93
2.Mr. Spartin’s Testimony Did Not Cause Indictment of Plaintiff ... 107
3. Interview Summaries Did Not Cause Mr. Spartin to Implicate Plaintiff ... 108
4. Mr. Spartin’s Opinion Did Not Procure Indictment ..'. Ill
B. Plaintiff Failed to Prove Absence of Probable Cause ... 113
1.Plaintiff Has Not Rebutted Indictment’s Presumption of Probable Cause ... 115
2.Indictment Against Plaintiff Was Supported by Probable Cause ... 120
C. Postal Inspectors Did Not Act With Malice ... 123
1. Alleged USPS Animosity Towards REI and Plaintiff -... 127.
2. Initiation of Investigation of REI and Plaintiff Was Warranted ... 131
3. Subpoenas Issued to REI ... 134
4. Documents Prepared by Postal Inspectors ... 137
D. ■ FTCA Judgment Entered in Favor of United States ... 145
V. THE FTCA JUDGMENT BAR ... 146
VI. MOTION FOR NEW TRIAL ... 149
A. Procedural Rulings Prior to Trial ... 150
B. Evidentiary Rulings ... 153
1. Exclusion of Indemnification Evidence .... 153
2. Exclusion of Prior Judicial Opinion ... 160
3. Plaintiffs Country Club Member- • ship ... 164
4. Admission of Hearsay Evidence ... 3.67
C. Jury Instructions ... 172
1. Concert of Action Instruction ... 172
2. Probable Cause Instruction ... 176
3. Inducement Instruction ... 178
D. Judicial Conduct .■.. 186
1. Questioning of Witnesses ... 187
2. Instruction Concerning Deposition Questions ... 188
3. Instruction ..Following Summation ... .189
VII. CONCLUSION ... 194
Other Judges on this Court previously dismissed the plaintiffs
Bivens
claim against the Postal Inspectors twice and his FTCA claim against the United States three times, but the two claims at issue at trial and addressed in this Memorandum Opinion were revived each time on appeal.
See Moore v. Hartman,
Nos. 92-CV-2288 (NHJ), 93-CV-0324 (NHJ),
For the reasons discussed below, the Court reaches the same conclusion as the jury that heard the plaintiffs
Bivens
claim: The plaintiff has failed to prove, by a preponderance of the evidence, his FTCA claim of malicious prosecution by the United States. Moreover, the plaintiff is not entitled to un-do the jury verdict against
I. BACKGROUND
Set out below is a brief overview of the factual background underlying these cases as well as a summary of the lengthy procedural history.
A. Factual Overview
In November 1989, another Judge on this Court granted the plaintiffs motion for a directed verdict of acquittal, under Rule 29 of the Federal Rules of Criminal Procedure, on criminal charges,
inter alia,
that he engaged in a conspiracy to defraud the United States, in violation of 18 U.S.C. § 371.
United States v. Recognition Equip., Inc.,
As detailed in the factual findings set out in Part III, infra, in July 1985, the Chief Postal Inspector opened an investigation into possible corruption at the highest level of the United States Postal Service (“USPS”). Over the course of the next three years, Postal Inspectors uncovered an illegal bribery and kickback scheme in which Peter Voss, the Vice Chairman of the USPS Board of Governors (“BOG”), took bribes from an outside consulting group to use his influence on a key subcommittee of the BOG to award a sole source contract for up to $400,000,000, to the consultants’ client. If the scheme were successful, the Vice Chairman expected a percentage kickback from the sole source contract. The consultants’ client and the source of the bribe monies paid to the BOG Vice. Chairman was. Recognition Equipment, -Inc. (“REI”), a -Dallas, Texas company headed by the plaintiff.
When the plaintiff took over as Chief Executive Officer (“CEO”) of REI in 1982, he initiated a multi-pronged campaign to increase the company’s business with USPS and, specifically,, to obtain a sole source contract from USPS for the purchase of REI’s mail sorting equipment, which used a different technology than that widely deployed by USPS. As part of what the plaintiff himself described as “aggressively pursuing] [the] contract,” 6/25/14 AM Tr. at 97,
1
the plaintiff (1) met with the highest management levels within USPS, including the Postmaster General and BOG members; (2) engaged members of the Texas congressional delegation to pressure USPS to alter its choice of mail-sorting technology and to introduce a bill designed to make REI the sole procurement contract winner; (3) testified before congressional committees and contributed to press reports critical of USPS’s mail-sorting technology; and (4) hired, internally to REI, a new Vice President of Sales and Marketing, Robert W. Reedy, who was subsequently indicted with the plaintiff, to enhance the company’s government contracting effort, as well as outside consultants to facilitate obtaining USPS contracts. At the recommendation of, and under pressure from, the corrupt BOG Vice Chairman, the plaintiff hired a small, Detroit-based consulting group, called Gnau and Associates, Inc. (“GAI”), at rates
In April 1986, a GAI employee, William Spartin, entered into a cooperation and nonprosecution agreement and unveiled the illegal bribery and kickback scheme to the Postal Inspectors. The following month, in May 1986, the BOG Vice Chairman pleaded guilty to criminal charges arising from his receipt of illegal payments from GAI, which had served as the conduit to funnel fees paid to GAI by REI to the BOG .Vice Chairman. In the ensuing months, two additional co-conspirators from GAI, John Gnau and Michael Marcus, pleaded guilty, in October 1986 and January 1987, respectively, to charges relating to the illegal scheme.
Rather than rest on them laurels with the revelation -of the illegal bribery and kickback scheme and the successful convictions of three co-conspirators, the Postal Inspectors, under the direction of the Chief Postal Inspector, continued their investigation by following the corrupt money to its source. This led the Postal Inspectors directly to REI, which had retained the convicted consultants under a lucrative retainer arrangement and which stood to benefit from the sole source contract that was one of the goals of the illegal scheme. As the plaintiff himself admitted during his testimony in this case, the connection between the conspirators and his company, REI, “looked suspicious,” 6/25/14 AM Tr. at 24, and presented such a “lousy set of circumstances,” id. at 25, that even the plaintiff agreed the investigation of REI and himself “would certainly be justified by the circumstances,” id. at 26.
Between the time of the guilty pleas of three co-conspirators in the illegal scheme and October ■ 1988, Postal Inspectors collected additional documentary and other evidence, which they presented to the U.S. Attorney’s Office for the District of Columbia (“DC USAO”) in support of an indictment of the plaintiff, REI and Mr. Reedy. The DC USAO spent over a year considering whether to indict the company and two of its officers, holding' at least seventeen internal meetings about this issue and providing defense counsel for the plaintiff and his codefendants the opportunity to present, in writing and orally, reasons against an indictment. Nevertheless, after a meeting on September 22, 1988, between the then-U.S. Attorney for'the DC USAO and' defense counsel, the U.S. Attorney approved the indictment. Less than a month after this meeting, in October 1988, the grand jury returned the indictment, charging REI, the plaintiff and Mr. Reedy as co-conspirators in the illegal scheme.
As noted, the plaintiff and his co-defendants were acquitted at the criminal trial after the trial court concluded that the government had presented insufficient evidence in its case-in-chief “to establish a prima facie case that the Defendants conspired to defraud the United States.”
Recognition Equip., Inc.,
Following his acquittal, the plaintiff has relentlessly pursued damages claims against five Postal Inspectors, who had varying degrees of involvement in the investigation of the illegal bribery and kickback scheme, and against the United States. From the plaintiffs perspective, his five years of service in the U.S. Army and six years of service-as CEO of a relatively small • public- company 2 were poised to catapult him into a future career as CEO of a Fortune 100 or 500 company and for eligibility to be Secretary of Defense. 6/25/14 AM Tr. 62, 64. These career aspirations were quashed, according to the plaintiff, because of his indictment and warranted the damages he sought of over a quarter billion dollars. 3 The past twenty-five years of- consideration of the plaintiffs claims by the District Courts of the Northern -District of Texas and > the District of Columbia, the' Court of Appeals for the D.C. Circuit on six separate appeals, and the U.S. Supreme Court on two appeals, left two claims for trial: the plaintiffs Bivens claim for retaliatory indüeement to prosecution against five Postal Inspectors and an FTCA action for malicious prosecution against . the • United States. - - .
B. Procedural History
Two years after his acquittal, the plaintiff filed, in the Northern District of Texas,
This procedural history is more fully discussed below.
1. Plaintiff’s Initiation of Two Lawsuits
In November 1991, the plaintiff and his wife, Blanche K. Moore, filed a civil action in the United States District Court for the Northern District of Texas against six Postal Inspectors and an AUSA.
5
None of these defendants were senior level managers or. even supervisors within the USPS, the Postal Inspection Service or the DC USAO but, instead, were front-line agents and the trial prosecutor, who participated in the investigation and prosecution of the perpetrators of the illegal scheme. Although this complaint asserted five causes of action, only the Fifth Cause of Action, under
Bivens,
for retaliatory prosecution due to the plaintiffs exercise of his First
Shortly after the Bivens action was transferred to this Court, the plaintiff and his spouse filed a second complaint in the Northern District of Texas seeking damages against the United States under the FTCA for the same allegedly unlawful conduct with the identical causes of action set out in the Bivens action. See FTCA Compl.; Moore, et al. v. United States, Civ. No. 3:92-cv-02129-R, at 2 n.l (N.D.Tex.), Mem. & Order, dated September 21, 1992, ECF No. 55. This case was also transferred to this Court and consolidated with the plaintiffs Bivens action. See Stipulated Order, Case No. 93-0324 (D.D.C. Mar. 3, 1993) (consolidating cases). Only the Second Cause of Action for malicious prosecution in the FTCA complaint survived for trial.
2. Key Judicial Decisions
The plaintiffs claims have received consideration from Judges and Justices at every level of the federal judicial system, resulting in multiple judicial opinions. This body of case law frames the issues for the conclusions of law on the plaintiffs • FTCA claim and evaluating the plaintiffs motion for a new trial on his Bivens claim, necessitating review of the key decisions in this lengthy procedural history.
a. 1993 District Court Dismissal of Claims
In 1993, the first Judge on this Court to consider the plaintiffs claims dismissed both .suits. Specifically, the Court dismissed the plaintiffs
Bivens
claim for malicious prosecution ■ against the defendant Postal Inspectors for failure to assert mоre than “bare allegations of malice,” which were insufficient “to subject government officials either to the costs of trial or to the burdens of broad-reaching discovery.”
1993 Moore,
The court also dismissed the FTCA claims brought against the government, finding that the claims of constitutional violations of the First Amendment and the Fifth Amendment were barred by sovereign immunity since only common law tort claims were cognizable under the FTCA, id' at *7, and the remaining common law claims for malicious prosecution, false arrest and abuse of discretion were barred by the discretionary function exception to the FTCA, id.- at *9. In applying the discretionary function exception, the court examined the plaintiffs allegations of prosecutorial misconduct “relating to the presentation of evidence to the grand jury,” “fail[ure] to disclose Brady material,” and that the “government harassed and intimidated witnesses,” id. at *8, and concluded that the alleged misconduct was so “closely linked to the exercise of prosecutorial discretion,” id., that “the discretionary function exception thus exempted] the United States from liability for all the common law claims alleged in both the plaintiffi’s] lawsuits.” Id. at *9. 7
Upon concluding that ’ (1) the
Bivens
claims against the Postal Inspectors failed to meet the heightened pleading standard required for malicious prosecution tort claims, (2) the claimed constitutional violations against the United States were precluded by the FTCA, and (3) the common law claims against the United States, under
Bivens
and the FTCA, were barred by the discretionary function exception, the court granted the defendants’ motions to
b. 1995-2000 Appellate Reversal of First Dismissal of Claims, Followed by District Court’s Second Dismissal of FTCA Claim
On appeal, the D.C. Circuit affirmed in part and reversed in part the
1998 Decision. Moore I,
Regarding the defendant Postal Inspectors, the D.C. Circuit found that the plaintiff’s retaliatory prosecution claim “alleg[ed] the violation of clearly established law” with sufficient factual allegations “to" meet any applicable heightened pleading standard” required for a viable Bivens claim. Id. at 196. Specifically, the Circuit pointed to the allegations hr the complaint that: (1) “[i]n publicly criticizing the’USPS Moore unquestionably exercised his first amendment rights,” and (2) “[t]wo of the .postal inspectors, who reported to USPS management, heard and did not repudiate Valder’s declaration that Moore’s innocence was irrelevant to the prosecution he intended to pursue,” referring to the lunch conversation recounted in the Hittinger Affidavit. Id. As a result, the Court reversed the dismissal of and remanded the Fifth Cause of Action in the Bivens complaint for retaliatory prosecution against all of the defendants.
Finally, the Circuit affirmed in part and reversed in part the district court’s dismissal of the plaintiffs FTCA1 claim against the United States. The discretionary function exception shielded the United States from “Moore’s claims that Valder and the postal inspectors pressured witnesses into’ incriminating him, concealed and distorted exculpatory evidence to create a false impression of what he knew about the fraud schemes-and withheld ma
In sum, in its 1995 decision, the Circuit affirmed the dismissal of the Bivens malicious prosecution claim against all defendants, but reversed both the dismissal of the Bivens retaliatory prosecution claim against all defendants, and the dismissal of the FTCA .malicious prosecution claim against the United States based upon the alleged unauthorized disclosure of grand jury testimony.
On remand, the district court for the second time dismissed the Bivens claim for retaliatory prosecution against. AUSA Valder аs well as the FTCA claim for malicious prosecution against the United States. See 1998 Decision. 8 The plaintiff appealed the dismissal of his claims and the D.C. Circuit addressed the case for a second time.
c. 2000-2004 Appellate Reversal of District Court’s Second Dismissal of FTCA Claim
In 2000, the D.C. Circuit affirmed the district court’s decision to dismiss the plaintiffs
Bivens
retaliatory prosecution claim against AUSA Valder and the FTCA abuse of process claim against the United States, but reversed the dismissal of the FTCA malicious prosecution claim against the United States.
9
Moore II,
' On remand, the Postal Inspectors again moved for summary judgment on the plaintiffs Bivens retaliatory prosecution claim, arguing that qualified immunity shielded them from suit because the prosecution of the plaintiff was supported by probable cause. Defs.’ Mot. for Summ. J., Moore v. Hartman, Case No. 92-2288 (D.D.C. July 30, 2001), ECF No. 254. Alternatively, they argued that summary judgment was proper because the plaintiff had not produced sufficient evidence of retaliatory motive. Id. The district court denied the Postal Inspectors’ motion in a one-paragraph order, citing material disputed facts “surrounding the presentation of evidence • to the grand jury and the disclosure of grand jury testimony as to a key prosecution witness.” Order, Moore v. Hartman, Case No. 92-2288 (D.D.C. Aug. 5, 2003), ECF No. 283.
On interlocutory appeal, the D.C. Circúit affirmed the denial of summary judgment on the plaintiffs
Bivens
retaliatory prosecution claim, rejecting both grounds posited by the defendant Postal Inspectors.
Moore v. Hartman,
With respect to the second ground on which the defendant Postal Inspectors sought summary judgment, the Court explained that, while “[qualified immunity generally shields public officials from civil damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known,” id. at 872-73 (internal quotations and citations omitted), this was not the circumstance presented. Instead, “the clearly established law of this circuit barred government officials from bringing charges they would' not have pursued absent retaliatory motive, regardless of whether they had probable cause to do so.” Id. at 872. As applied in this case, the Court found that “what the inspectors were doing — prosecuting a case they otherwise would have left alone — violated the First Amendment.” Id. at 885. Thus, the Court affirmed the district court’s finding that the defendant Postal Inspectors were not entitled to'qualified immunity on the plaintiffs Bivens retaliatory prosecution claim and remanded the case “reassuring] both sides” that “the next step, presumably, will be preparation for trial.” Id. at 886 (emphasis in original).
d. 2006 Supreme Court Review Requiring Proof of No-Probable Cause for FTCA Malicious Prosecution Claim
The next .step, however, was not trial but , rather consideration by the Supreme Court, which agreed with the defendant Postal Inspectors that “want of probable cause must be alleged and proven” to establish that a prosecution was induced in retaliation for protected speech.
Hartman v. Moore,
e. 2007-2009 Appellate Reversal of District Court’s Dismissal of Both Bivens and FTCA Claims
On remand to the district court, the defendants moved for summary judgment on the two claims remaining — the
Bivens
claim of retaliatory prosecution against the Postal Inspectors and the FTCA malicious prosecution claim against the United States — on the ground that “the plaintiff cannot prove the ■ absence of- probable cause.”
2008 Decision,
On appeal, in its fourth opinion pertaining to this action, the D.C. Circuit again disagreed with the district court’s reasoning for dismissing the plaintiffs claims and remanded the case.
Moore v. Hartman,
The Circuit rejected the district court’s finding that an indictment is conclusive evidence of probable cause and held that an indictment is prima facie evidence of probable cause and merely creates a presumption, which may then be rebutted by contrary evidence. Id. at 67-68. The case was reihanded with'instructions to “take into account the rebuttable presumption in favor of probable cause” and “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 to the grand jury.” Id. at 69. Under this standard the plaintiff needed to “present evidence that the indictment was produced by fraud, corruption, • perjury, fabricated evidence, or other wrongful conduct undertaken in bad faith” to overcome the prima facie evidence of probable cause presented by the indictment. Id.
f. 2010-2013 District and Circuit Courts’ Denial of Summary Judgment on Both Bivens and FTCA Claims
Upon remand, all defendants moved again for summary judgment on both the
The defendant Postal Inspectors appealed the denial of summary judgment on the
Bivens
claim, on grounds that, even if probable cause were lacking, their mistaken belief that- probable cause was present — “termed ‘arguable - probable cause’ ” — entitled them to qualified immunity.
Moore V,
The Postal Inspectors appealed this ruling that they were not entitled to qualified
On remand, in a single page opinion, the D.C. Circuit provided its final word before trial on this matter, reinstating the 2011 opinion in Moore V, with the following explanation:
Because retaliatory arrest and retaliatory prosecution are distinct constitutional violations and because the precedent in this Circuit clearly established in 1988, when the challenged conduct by the Postal Inspectors took place, the contours of the First Amendment right to be free from retaliatory prosecution, nothing in Reichle changes our conclusion that the absence-of-probahle-cause requirement is not “an element of a First Amendment retaliation violation.” Moore V,644 F.3d at 424 . If the Postal Inspectors believe that the Court in Reichle meant to decide what it refused to decide in Hartman and bring to a halt this three decades old case involving evidence that, unlike in Reichle where probable cause was conceded, ‘comes close to the proverbial smoking gun,” Moore v. Hartman,388 F.3d 871 , 884 (D.C.Cir.2004) (‘Moore III’), they are free to once again petition for certiorari and ask the Supreme Court if it wishes to end this saga.
Moore VI,
3. Pre-Trial Motions in Limine
Prior to trial, the parties filed multiple motions
in limine,
regarding,
inter alia,
at least .eighteen separate evidentiary issues.
See, e.g.,
Defs.’ Omnibus
Motion in Li-mine,
ECF No. 417, 419; Pl.’s Mot. Concerning Source of Payment of Any Judgment, ECF No. 422; Pl.’s Mot. to Exclude
4. Dial
At the concurrent four week FTCA bench and
Bivens
jury trial the plaintiff presented a total of twenty-three witnesses, only eleven of whom provided live testimony, and over 200 trial exhibits.
14
For the majority of his witnesses, the plaintiff presented lengthy portions of depositions by screening videotapes of the depositions or reading aloud from the deposition transcripts.
15
The plaintiff presented the testimony of: (1) the plaintiff; (2) the five Postal Inspector defendants, via pretrial depositions; (3) two former colleagues of the plaintiff at REI;
16
(4) Peter Voss, .the former Vice Chairman of USPS BOG, who was convicted for his participation in the illegal scheme, via
de bene esse
deposition;
17
(5) the former Chairman of the USPS BOG, the former Postmaster General and other senior managers at USPS;
18
(6) former AUSA Valder, via pretrial deposition, and one of his supervisors from the DC USAO;
19
(7)
The defendants presented over 100 trial exhibits and the testimony of nine witnesses, including the live testimony of the four living defendant Postal Inspectors, former 'AUSA Valder, two former 'supervisors from the DC USAO, 22 and a witness proffered as a damages expert. 23
Following- presentation of the twenty-six unique witnesses and admission of 305 trial exhibits, the jury returned a verdict for the Postal Inspectors, finding that the plaintiff had failed to prove, by a preponderance of the evidence that he was criminally prosecuted in retaliation for his First Amendment protected activities. Thereafter, the parties filed approximately 400 pages of proposed findings of fact as well as their respective proposed conclusions of law on the FTCA claim, and the plaintiff moved for a new jury trial. See Pl.’s Mot., ECF No. 511; Pl.’s COLs, ECF No. 125; Defs.’ Proposed Concls. of Law (“Defs.’ COLs”), ECF No. 127; Defs.’ Errata on its Proposed Concls. of Law (Defs.’ Errata COLs”), ECF No. 128; PL’s Reply in Supp. of COLs (“PL’s Reply COLs”), ECF No.131.
The plaintiffs FTCA claim for malicious prosecution is addressed first before turning to the plaintiffs motion for a new jury trial on the Bivens claim for retaliatory prosecution.
II. LEGAL STANDARDS
A. Law Applicable to FTCA Claim
The-United States, as a sovereign, is absolutely immune from suit and, unless Congress has unequivocally consented to permit a cause of action, no court has jurisdiction to entertain a claim against the United States.
United States v. Sherwood,
Generally, the FTCA does not allow for malicious prosecution claims against the United States. 28 U.S.C. § 2680(h) (“The provisions of this chapter and section 1346(b) of this title shall not apply to ... [a]ny claim arising out of ... malicious prosecution ... ”). An exception exists, however, “with regard to acts or omissions of investigative or law enforcement officers.”
Id.
The D.C. Circuit has concluded that the Postal Inspectors involved in the investigation of the plaintiff are “investigative or law enforcement officers,” within the meaning of the FTCA.
Moore II,
When the exception does apply, the liability of the United States for the negligent or wrongful acts or omissions of its employees, acting within the scope of their employment, is determined “in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b)(1);
see also FDIC v. Meyer,
1. Federal Rule of Civil Procedure 52(a) Applicable to Findings and Conclusions by the Court
Pursuant to Federal Rule of Civil Procedure 52(a), “[i]n an action tried upon the facts without a jury,” the Court must “find the facts specially and state its conclusions of law separately.” Fed. R. Civ. P. 52(a)(1);
see Ascom Hasler Mailing Sys., Inc. v. U.S. Postal Serv.,
In setting forth the findings of fact,the court need not “address every factual contention and argumentative detail raised by the parties,”
Mayaguez v. Corporacion Para El Desarrollo Del Deste,
Moreover, the court “[f]indings of fact, whether based on oral or other evidence, must not be set aside unless clearly erroneous ...” Fed. R. Civ. P. 52(a)(6);
see Anderson v. City of Bessemer City, N.C.,
B. Federal Rule of Civil Procedure 59 Applicable to Plaintiff s Motion for New Trial
Under Federal Rule of Civil Procedure 59, following a jury trial, the court may grant a motion for a new trial “for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Fed. R. Civ. P. 59(a)(1)(A). Rather than define the precise circumstances justifying a new trial, Rule 59 turns to case law and permits a new trial in those circumstances traditionally viewed as permitting a new trial.
ABM Marking, Inc. v. Zanasi Fratelli, SRL,
The high threshold for a new trial reflects the “well-settled” principle that “Rule 59 is not a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing on the merits, or otherwise taking a ‘second bite at the apple.’ ”
Sequa Corp. v. GBJ Corp.,
“The authority to grant a new trial ... is confided almost entirely to the exercise of discretion on the part of the trial court.”
Allied Chem. Corp. v. Daiflon, Inc.,
The Supreme Court has made clear that “ ‘[a litigant] is entitled tó'a fair trial but not a perfect one,’ for there are no perfect trials.”
McDonough Power Equip, v. Greenwood,
III. FINDINGS OF FACT FOR PLAINTIFF’S FTCA CLAIM
The parties presented evidence on the plaintiffs FTCA claim over four weeks of trial. To facilitate review of this voluminous record, the findings of fact are divided into four sections: (1) the initiation and progression of the criminal investigation into the bribery and kickback scheme involving the Vice Chairman of USPS’ BOG and others; (2) the investigation of the plaintiff and his co-defendants; (3) the consideration given within the DC USAO to bringing criminal charges against the plaintiff and his co-defendants; and (4) the plaintiffs alléged damages that he claims to have sustained as a result of being indicted.
A. Initiation and Progression of Investigation into Illegal Scheme
The plaintiff chose over twenty years ago to sue not only the United States ünder the FTCA but also the lowest level government employees involved in the investigation and prosecution of the criminal charges against him, despite the fact that virtually every significant step of this investigation leading to the indictment was approved by supervisory personnel. To provide context for the actions taken by
1. Brief Overview of Pertinent Components of USPS
The USPS is structured with an eleven-person BOG, comprised of nine governors appointed by the President, the Postmaster General (“PMG”) and the-Deputy Postmaster General (“DPMG”).- 7/8/14 AM Tr. at 72-73 (Carlin testimony). The PMG is appointed by the nine governors and then the pine governors and the PMG select the DPMG. Id. The PMG is the head of the USPS executive committee and the. top manager within USPS. Once named, the PMG is a member of the BOG for all matters except rate-setting and classifications. 7/1/14 AM Tr. at 31 (Jellison Dep. testimony); 7/8/14 AM Tr. at 73 (Carlin testimony).
Two USPS committees figured in the investigation of the bribery-and kickback scheme at issue in this case: BOG’s Technology and Development Committee (“Technology Committee”) and USPS management’s Capital Investment Committee (“CIC”). During the relevant time period of the conspiracy, the Technology Committee had four members: Vice Chairman Peter Voss, Ruth Peters, George Camp, and DPMG Jackie Strange. 7/8/14 AM Tr. at 24 (Carlin testimony); 7/10/14 AM Tr. at 99 (Clauson testimony). The Technology Committee was tasked at the Board level with providing guidance on technology procurement issues within the USPS. 7/8/14 AM Tr. at 40 (Carlin testimony); 7/1/14 PM Tr. at 34 (Jellison Dep. testimony). By contrast, the CIC drew its members from senior USPS management and had the responsibility of deciding on all major capital investments. 7/1/14 PM Tr. at 34 (Jellison Dep. testimony). While “smaller procurements were approved and handled on lower levels,” significant contracts for over approximately $10 million dollars, required CIC’s approval. 7/10/14 AM Tr. at 99-100 (Clauson testimony); see also ■ 7/1/14 PM- Tr. at 58 (Jellison Dep. testimony that: “if it were over $5 million, it had to go to the board for approval.”).
The Postal Inspection Service is a. USPS component with the mission of investigating waste, fraud and abuse within this government agency. Clauson Dep. at 16, Sept. 3, 1999 (“[t]he Postal Inspector is charged with responsibilities of carrying out the audit and criminal investigative and security missions of the United States Postal Service”); 7/8/14 AM Tr. at 58 (Carlin testimony). As such, Postal Inspectors are federal law enforcement officers and authorized to carry firearms and make arrests. 7/10/14 AM Tr. at 84 (Clauson testimony). With respect to criminal' matters, the Postal Inspection Service operates highly independently of USPS management. 7/8/14 AM Tr. at 58-59 (Carlin testimony); ' 7/10/2014 AM Tr. at 135-36 (Clauson testimony).
2. USPS Automation Program
From the 1970s to. the early 1980s, the USPS began an automation program to transition from sorting mail by hand to use of automated mail sorting machines. As part of this process, in 1980, the USPS decided to use Optical ■ character reading (“OCR”) equipment that could identify-key information in addresses to facilitate mail routing and delivery. Pl.’s Ex. 538 ¶ 1 (Stipulated Facts). ' Machines capable of reading a single line -of the zip code at the bottom of an address were known as single-line optical readers (“SLOCR”).
Id.
¶ 2. In “Phase I” of the USPS’ mail auto
At the time that USPS deployed the SLOCR machines, the technology for multi-line OCR machines (“MLOCR”), which could “read” more than the single, bottom line in an address, was still in the developmental stages. Indeed, USPS had invested almost $70,000,000 in REI for research and development of MLOCR machines. 6/24/14 AM Tr. at 104-05 (Plaintiff testimony: “I think we had received up to that point somewhere between 50 to 70 million dollars over a number of years in development funds....”); 6/25/14 AM Tr. at 70 (Plaintiff testimony: “And the postal service had given us, prior to my arrival, close to $70 million to build machines.”). In addition, by 1983, the USPS had deployed five of the REI prototype MLOCR machines in various field offices for 'testing. Pl.’s Ex 25 at 32 (U.S. Office of Technology Assessment ' report, dated June 1984 (“OTA Report”)). In the view of USPS, these field tests confirmed continuing operational concerns with the REI machines and, consequently, the USPS did not believe that REI’s MLOCR machines were a viable option for mass deployment. 7/1/14 PM Tr. at 6 (Jellison Dep. testimony: “Q: You were opposed to going with REI, weren’t you, Mr. Jellison? A: Not with REI. With the read machine they were offering as a multi-line machine”). At the same time, however, customers were not adopting the use of Zip+4 as projected by USPS, which reduced-the performance of, and efficiency savings from, SLOCR machines. 7/15/14 PM Tr. at 101 (Edwards testimony); 6/24/14 AM Tr. at 117 (Plaintiff testimony).
Despite the slow adoption of Zip+4, in January 1984, the BOG approved funding for “Phase II” of its automation strategy, which included the purchase of additional SLOCR machines. PL’s Ex. 538 ¶ 7 (Stipulated Facts).
Six months later, in June 1984, the United States Office of Technology Assessment issued a report entitled, “Review of Postal Automation Strategy, A Technical and Decision Analysis, A Technical Memorandum,” in response to congressional requests “to conduct a comparative technical and economic analysis” of SLOCRs and MLOCR machines. PL’s Ex. 25 at 1 (OTA Report). The OTA Report acknowledged that “multi-line OCR may not have been a technically viable alternative 3 or 4 years ago when USPS made its initial decision to go with single-line OCRs,”
id.
at 3, and that “[i]n the 1976-1980 period, when the basic USPS autоmation program was developed, the single-line optical character reader was, in the opinion of USPS, the only proven equipment,”
id.
at 16. The OTA Report noted that “[i]n the late 1970’s, USPS procured one multi-line OCR from REI” that “did not satisfy USPS performance requirements, but the single-line OCRS of five foreign manufacturers did.”
Id.
at 32. The OTA Report found that, with USPS research and development support, “REI has developed one of the leading multi-line OCRs on the world market,”
id.
at 8, and that “USPS test data
Consistent with the recommendation in the OTA Report to “proceed with the Phase II[SL]OCR procurement,” on July 9, 1984, the BOG referred the matter of the Phase II automation procurement to the BOG’s Technology Committee. PL’s Ex. 538 at ¶ 10 (Stipulated Facts). The contract for Phase II of the automation program to supply 403 SLOCR machines, at a cost of $200,000 each, was awarded, on July 10, 1984, to Electrocom Automation, Inc. (“ECA”), a domestic company that licensed the OCR technology from a German company, AEG-Telefunken (“AEG”). Id. at ¶ 11.
One year later, however, under the direction of PMG Paul Carlin, the USPS ■made a “midcourse” correction in the procurement process. This mid-course correction provided for two additional phases of the automation program: Phase IIA would involve “the development and testing of a retrofit kit to enable the Phase II single-line OCRs to read multi-line, that is four lines of the address rather than just the last line of the address ... In addition, a Phase III plan was instituted which involved development and testing of a completely new multi-line machine to replace existing Phase I OCRs.” PL’s Ex. 229 at 58 (ZIP+4/Automation Investigative Report to Congress, dated Jan. 1987, by Postal Inspection Service (“ZIP + 4 Report”)).
3. Summer of 1985 Initiation of
Investigation of BOG Vice Chairman Voss
In January 1985, USPS came under new leadership when Paul Carlin succeeded William • Bolger as Postmaster General. PL’s Ex. 538 ¶ 12 (Stipulated Facts). Under pressure to reduce operational losses and increase mail sorting automation in the face of low adoption of Zip+4 codes, PMG Carlin announced a mid-course correction on July 12, 1985 and, consistent with the OTA Report recommendation, further announced, on August 5, 1985, “that the next automation procurements would be decided by competitive testing, in two phases: Phase IIA would involve retrofitting ECA’s existing SLOCRs with MLOCR capabilities, and Phase III would involve the purchase of new MLOCRs.” PL’s Ex. 538 ¶ 15, 16 (Stipulated Facts). The contract for the Phase III purchase of new MLOCRs was estimated to be up to $400 million dollars. 7/10/14 AM Tr. at 93 (Clauson Testimony). Set against this backdrop of procurement decisions, certain events occurred in the early summer of 1985 that raised the concern of PMG Carlin and the Chief Postal Inspector (“CPI”) Charles Clauson about possible corrupt dealings on the BOG.
a. June 1985 CIC Meeting
. At a June 1985 meeting of the CIC attended by CPI Clauson, who was a CIC member, DPMG Jackie Strange, who served as a member of BOG’s Technology Committee, made an announcement that made “people in the room ... aghast.... and shocked” and “thirty years later [it was] still edged in [their] mind[s].” 7/10/14 AM Tr. at 100-01 (Clauson testi
After this meeting, CPI Clauson instructed Postal Inspector Dan Harrington to investigate what was going on within the Technology Committee. 7/10/14 AM Tr. at 102-03 (Clauson Testimony). CPI Clauson told Postal Inspector Harrington “that [he] wanted to really start checking out with greater intensity what was going on here, what the ... technology committee of the Board of Governors was up to, who they were in contact with ... [j]ust an inquiry to check out to see what was going on here.” Id. at 102-03. 26 CPI Clauson testified that his “suspicions were directed directly at Voss.” Id. at 103. His “suspicion” grew because he “saw Voss get himself assigned to the ... technology committed ... saw him place a person as the head of [the] technology committee who was generally considered incompetent, a person he could easily manipulate. Id. at 108.
A few days after the CIC meeting, Ms. Strange “called [CPI] Clauson to her' office for another reason ... [a]nd.at the conclusion of a brief discussion ... she got up, closed the door and began talking about [the OCR] procurement.” Id. at 111. Ms. Strange “indicated that Voss had threatened her regarding complying with his preference to give a sole source procurement contract to REI and that “he had misrepresented himself as speaking for the [BOG] in attempting to maneuver these preferences to actual commitment of.a contract.” Id. at 115; see Defs.’ Ex. 19 (Memorandum of Interview of Jackie Strange, dated ■ July 18, 1985, by CPI Clauson (“Strange Interview”)). While “she had no evidence whatsoever of personal gain on the part of any persons involved in the [OCR Procurement] process” Ms. Strange expressed “her belief that no person would go to the extremes that Voss had gone to in an attempt .to influence the procurement without some personal gain.” Id. at 115; see Defs.’ Ex. 19 (Strange Interview). That same day, CPI Clauson arranged for Ms. Strange to speak to Postal Inspector Harrington about Vice Chairman Voss’ involvement in the OCR procurement process. Id. at 116.
Ms. Strange’s information that “she was being personally threatened” by Vice Chairman Voss to award REI a sole source contract, highlighted for CPI Clauson the need to investigate Vice Chairman Voss and he subsequently assigned additional inspectors.'
Id.
at 117.
27
At this
b). PMG Carlin’s Suspicions Aroused
Just as CPI Clauson’s suspicions had been heightened by Ms. Strange’s announcement of the BOG Technology Committee’s direction to the CIC about awarding a sole source contract to REI, PMG Carlin was concerned about the Technology Committee’s focus on a single vendor, REI, in the .procurement process. 7/8/14 -AM Tr. at 40-41 (Carlin testifying: “And I have to say that in no other instance was the board so insistent on providing a contract to a specific individual as this one.”); id. at 119-20 (Carlin testifying: Peter Voss and Ruth Peters “in effect became spokesmen for that organization”); id., at 120 (Carlin testifying: “you had one member of the board who was in effect acting as if he was a surrogate for a single vendor and doing unusual things”). Indeed, soon after Paul Carlin succeeded PMG William Bolger as USPS’ PMG, Vice Chairman Voss pressured PMG Carlin to meet with GAI as representatives of REI in January 1985. 7/8/14 AM Tr. at 121 (Carlin testifying that he agreed to meet with GAI because Vice Chairman Voss “insisted”). Also at Vice Chairman Voss’ request, PMG Carlin inspected REI’s MLOCR prototype equipment in Chicago. Id. at 23 (Carlin testifying that at request of “Peter Voss, a member of the board,”, he looked at prototype of REI machine “located in Chicago post office” and “the day-to-day operating officials ... said it’s a nice machine. It just doesn’t help us. We don’t use it at all.”); id. at 44 (Carlin testifying “at the request of Peter Voss I did look at ... one of five that had been provided by REI. What I found was that it was a nice machine. It just didn’t work, at that time in an operating environment. And the operating people told me we have too much mail coming through. We just can’t keep trying to mother this thing along.”).
PMG' Carlin described the depth of involvement in the procurement process of BOG members as “highly unusual” and “out of the ordinary.” ; 7/8/14 AM Tr. at 118. This left the distinct impression on him that “particularly one member ... seemed to me had a vested interest in the outcome.”
Id.
at 56. -When PMG Carlin-announced the mid-course correction in July, 1985, Vice Chairman Voss pushed for a sole source contract to be awarded to REI. 7/8/14 AM Tr; at 23-24, 40-41 (Carlin testimony). After he began cooperating, Vice Chairman Voss confirmed- that “he responded-to the pressures of Gnau and Associates, Inc. and Recognition Equipment, Inc. by pressuring Postmaster General Carlin and management- to either award a sole source contract to Recognition Equipment, Inc; or' test the competing machines within the next 60 days”-because he “believed that a tightened test schedule would favor Recognition Equipment, Inc.” Defs.’ Ex. 65 at 11 (Interview Summary of Peter E. Voss presented to grand jury on August 28, 1986 (“Voss G.J. Interview Summary”));
see also
PL’s Ex. 165 at Bates SMFC3 11402 (“Factual Foundation Supporting Guilty Pleas” of Peter Voss,, dated May 30,1986, stating: “During May, June and July 1985, Peter Voss encouraged, recommended, and instructed the Deputy Postmaster General that USPS purchase the MLOCR system from the Dallas corporation” and “to bypass the established review/approval process”).
PMG Carlin was apparently not alone in observing suspicious conduct by BOG members. He testified about being “alerted by counsel to the Board of Governors that there was skullduggery going on and that somebody could go to jail.” 7/8/14 AM Tr. at 50 (Carlin testimony). Due to his concerns, PMG Carlin asked CPI Clauson to take the “highly unusual” step of assigning a Postal Inspector to monitor the new procurement phases instituted with the July 1985 mid-course correction, 7/8/14 PM Tr. at 57 (Carlin testimony), and ensure the process “was as fair and straightforward as it should be,” id. at 117. PMG Carlin publicly announced this measure in a July 14, 1985 memorandum to the BOG. Id. at 56; Pl.’s Ex. 73 (PMG Carlin Memorandum to BOG, dated July 14,1985).
To carry out PMG Carlin’s instruction for a dedicated Postal Inspector to monitor the next procurement phases in the USPS automation program, CPI Clauson assigned Postal Inspector Edwards “to monitor the procurement of multi-line equipment.” 7/15/2014 AM Tr. at 79 (Edwards testimony); Edwards Dep. at 25-26, Feb. 15, 2000. Postal Inspector Edwards testified that, when given this assignment, CPI Clauson did not ask him to look into REI, and he “did not care which vendor won the [OCR Procurement] competition, [he] simply wanted the most reliable, accurate, lowest cost vendor to win legitimately,” 7/15/14 AM Tr. at 79-80.
In sum, by July of 1985, after being informed by Ms. Strange that Vice Chairman Voss used threats to persuade her to comply with his desire to award a sole source multi-million dollar OCR procurement contract to REI, CPI Clauson had decided to open an investigation into the conduct of members of the BOG Technology Committee, particularly Vice Chairman Voss. The concerns of PMG Carlin about the need to protect the procurement process only compounded CPI Clauson’s suspicions.
4. Plaintiff and BEI’s Dealings with USPS Through Summer 1985
By July 1985, when CPI Clauson asr signed Postal Inspectors to begin an investigation into BOG’s Technology Committee and Vice Chairman Voss, the plaintiff had been REI’s CEO for slightly over three years. In that time, he had undertaken a multi-pronged effort to increase USPS’s purchases of REI’s MLOCR machines. The critical underpinning of the plaintiffs claim of malicious prosecution is that he was targeted for criminal investigation and prosecution due to those efforts and, in particular, the plaintiffs public criticism of USPS management for choosing to deploy SLOCR technology in the early 1980’s. In the plaintiffs view, his aggressive pursuit of USPS business for REI generated animosity towards him and his company by USPS management and resulted in his indictment. In evaluating the merits of this claim, a brief review of the historical business dealings between REI, the plaintiff and the USPS is helpful.
Significantly undercutting the plaintiffs view that USPS animosity towards the plaintiff was due to his public criticism of the USPS automation program is the evidence presented by the plaintiff at trial showing that
before
the plaintiff had engaged in any First Amendment protected activity, REI already had a “strained” relationship with USPS. 6/24/14 AM Tr. at 112 (Plaintiff testimony). Indeed, he testi
Shortly after he joined REI, the plaintiff reached out to then PMG William Bolger to “kind of try to smooth things out.” 6/24/14 AM Tr. at 114 (Plaintiff testimony). PMG Bolger agreed to meet with the plaintiff about the state of- REI’s technology, id. at 115, and even suggested that REI might benefit from using a consulting firm, id. at 120. As reported in a Postal Inspector memorandum summarizing a November 20,1985 meeting with the plaintiff, the plaintiff advised that PMG Bolger had “cited the past arrogance-of REI management, but indicated there Was no reason they could not do business in the future.” Pl.’s Ex. 105 at 2.
At the time of the plaintiffs meeting with PMG Bolger in early 1982, USPS had already made a multi-year, multi-million dollar research and development investment in REI and had purchased about five REI prototype machines that were installed in various USPS field locations. Id. at 117-18; PL’s Ex. 25 at 32 (OTA Report noting that “USPS .has provided enough support over the last 14 years to [REI] (of Dallas, Texas) such that REI has developed one of the leading multi-line OCRs on the world market”). The plaintiff admitted that “there were some criticism” of the performance of REI’s MLOCR machines but attributed that to deficient air-conditioning at some locations. 6/24/14 AM Tr. at 118,133. While the plaintiff did not believe the criticisms to be “a showstopper to us,” this was apparently not a view shared by USPS, which had experienced scheduling delays and other.issues with REI’s performance. See, e.g., 7/1/14 PM Tr. at 20 (Jellison testifying: “we did not want to buy the machine that [REI] had. The machine was not up to date technologically, and we did not want to buy more of those machines.”); 7/8/14 AM Tr. at 116 (Carlin testifying that he inspected an REI prototype machine in Chicago and “[i]t was not operating”); PL’s Ex. 291 at Bates SMFC4 000.06 (“Details of Offense” prepared by Postal Inspectors, reporting that “[t]he USPS experience with REI was marred by cost overruns, delays in delivery of contracted services and unsatisfactory performance of machines after installation.”); Défs.’ Ex. 55 at 4 (Postal Inspectors’ Preliminary Report, dated February 1986, noting that “[t]he REI-USPS relationship, however, had been unsatisfactory and prone to cost overruns, missed delivery schedules and equipment that was not state of the art.”).
Rather than focus on fixing the problems perceived by USPS with REI’s MLOCR machines, the plaintiff pushed forward'with finding ways'to secure more business.
See, e.g.,
PL’s Ex. 196 at 10 (Interview Summary of - Michael Marcus presented ‘to grand jury on Oct. 23, 1986 (“Marcus G.J. Interview Summary”) reporting Marcus statement that, at GAPs first meeting at REI Headquarters, “it was apparent that REI wished to continue a political approach ... based • on Robert Reedy’s instruction to stay away from the technical details and statistics when discussing the REI multi-line machine with USPS management”). Indeed, the plaintiff did not testify about doing anything to
In addition, the plaintiff testified that he lobbied Congress “fifty” times on this issue. Id. at 123-24. The plaintiff wanted members of Congress to “understand that [REI] had the only' machine — I knоw it was American built — that could satisfy the long-term needs of the postal service to process mail” and that was the “theme that [the plaintiff] kept hitting.” Id. at 124. He also testified critically before Congressional committees about USPS’ commitment to SLOCR machines because he “didn’t think the ZIP +4 projections were anywhere near reasonable and [that the USPS] had to fall back and go to the multi-line approach.” Id. at 127.
In both August and November 1983, the plaintiff wrote to PMG Bolger urging the USPS to reconsider deployment of SLOCR technology. PL’s Ex. 11 (Letter, dated August 24, 1983, from plaintiff to Bolger); PL’s Ex. 16 (Letter, dated November 14, 1983, from plaintiff to Bolger). In response to the latter letter, the plaintiff recalled that PMG Bolger indicated that a study by .the Congressional Office of Technology Assessment (“OTA”) “was coming” to evaluate the automation project and that the plaintiff “should kind of. hold off [his] criticisms.” 6/24/14 AM Tr. at 127-28. In fact, the plaintiff testified that he-was aware of the OTA study and had communicated his critical views about USPS’ choice of SLOCR technology with the members of Congress who had requested the study, or their staffs. Id. at 131. Indeed, according to another witness, OTA staff preparing the OTA Report “had been very well briefed by REI,” which “had a heavy influence on the perception that these guys got.” 7/1/14 PM Tr. at 45 (Jellison Dep. testimony). When the OTA Report was issued in June, 1984, the plaintiff “felt vindicated” and “because [REI] had the only multi-line machine that was deployable,” he thought REI was “in a position to get some business.” 6/24/2014 AM Tr. at 132-134.
As noted, supra, in Part III. A.2., the OTA Report, had recommended continued purchase of SLOCR machines, but with a plan to convert such machines to MLOCR. Consistent with part of this recommendation; USPS moved forward in purchasing additional SLOCR machines by awarding a contract in July 1984 to ECA. See PL’s Ex. 538 ¶ 11 (Stipulated Facts). Nonetheless; in the plaintiffs view, USPS management was “ignoring our technology,” 6/24/14 PM Tr. at 14, and he and his REI team then began to “double down” on then1 pursuit of USPS business. In fact, faced with the USPS decision to purchase additional SLOCR machines, the plaintiff advised PMG Bolger that REI was going to lobby Congress and “go directly to his Board of Governors.” 6/25/14 AM Tr. at 94-95 (Plaintiffs testimony).
The plaintiff did “go directly” to the BOG. In a July 1984 letter to -Vice Chairman Voss, the plaintiff complained about “USPS management ... dig[ging] in its collective heals” to purchase SLOCR machines incorporating “foreign developed technology which is substantially inferior to proven technology available in this country.” PL’s Ex; 31 (Letter, dated July 2, 1984, from plaintiff to Vice Chairman Vóss).
28
The plaintiff further recom
a. September 3, 1984 Meeting of Vice Chairman Voss with REI Vice President Robert Reedy
As part of’ REI’s effort to pursue a USPS contract aggressively, Mr. Reedy met with Vice Chairman Voss on September 3, 1984 at a restaurant in Dallas, Texas.
30
At the meeting, Vice Chairman Voss recommended' that REI hire GAI to help “improve our business with the Postal Service/’ 6/24/14 PM Tr. at 16 (Plaintiff testimony). By this time,' John Gnau from GAI had arranged with Vice Chairman Voss that “Voss would receive a commission equal to 30% of the fees generated by Voss’ referrals.” Defs.’ Ex. 65 at 2 (Peter Voss ' Interview Summary presented to1 grand jury on August 28, 1986 (“Voss G.J. Interview Summary”)). Afterwards, Frank Bray discussed the dinner meeting with Mr. Reedy, and told the Postal Inspectors that Mr. Reedy described Vice-Chairman Voss as wanting a private place out of public view and appearing nervous about being seen with Mr. Reedy. PL’s
b. Early 1985 Retention by REI óf GAI
Following a meeting at REI headquarters in January 1985 with John Gnau, REI retained GAI in February 1985, with a written agreement back-dated to January 15, 1985,. on the following terms: GAI would be paid one percent of any revenue generated from the USPS, and $30,000 in three installments of $10,000 each, which amount would be deducted from the “one percent override on the revenue associated with the contract.” 6/24/14 PM Tr. at 20-21 (Plaintiff testimony); 6/25/14 AM Tr. at 23 (Plaintiff testimony); Pl.’s Ex. 51 (REI’s contract with GAI). The GAI retainer agreement was subsequently increased to $22,000 per month. 6/25/14 AM Tr. at 23-24 (Plaintiff testimony). In comparison, REI was paying its other “prestigious” consultant, Hill & Knowlton, $5,000 per month. 6/25/14 AM Tr. at 24, 66 (Plaintiff testimony). The plaintiff explained that the increased monthly retainer to GAI was due to an “expanded set of responsibilities and actions that we required of them, yes.” 6/25/14 AM Tr. at 24. During the Postal Inspectors’ investigation, subpoenas were issued to ascertain the nature of these expanded responsibilities assigned by REI that warranted the doubling of GAI’s monthly retainer to an amount that was quadruple the amount paid to REI’s other, well-established Washington, D.C.-based consultant,
c. July 1985 Lobbying by Plaintiff for “Buy American” Amendment
In July 1985, the plaintiff traveled to Washington, D.C. to meet with members of Congress about the so-called “Buy American” amendment sponsored by the Congressman from the plaintiffs home district. 6/24/14 PM Tr. at 38 (Plaintiff testimony). This amendment essentially required USPS to spend at least $200,000,000, by October 1, 1985, “for the acquisition of American-designed technology for automation of mail processing.” PL’s Ex. 78 (Amendment to H.R. 3036 sponsored by Rep. Frost, dated July 25, 1985). REI was the only American firm at the time of the proposed amendment that made “American-designed technology” for OCR machines and, consequently, if the Frost “Buy American” amendment passed, the USPS would have had a single source to meet the requirements of .the amendment and would have been required to buy REI machines. See 6/25/14 PM Tr. at 99-101 (Plaintiff testimony). Indeed, the plaintiff testified that he wanted enactment of the amendment “to make sure we got some postal business.” Id. at 37. This amendment was never acted on by the House of Representatives. Id. at 101 (Plaintiffs testimony).
According to PMG Carlin, this amendment, if enacted, would not have affected the procurement process since USPS used
B. Investigation of Plaintiff
PMG Carlin testified that as part of the July 1985 mid-course correction to the USPS automation program, he envisioned competitive testing of the available technology for the next procurement phases. Rather than disregard REI’s machines out of any animosity, he “wanted a competitive process so that we would have two machines going side by side and we get the best, pick the best of them. Now, I was not clear at the beginning whether it would be one or we choose both of them. I had no position on that. I just wanted to make sure that the Postаl Service received equipment that worked all of the time. And worked as intended and at the best price.” 7/8/14 AM Tr. at 119. He also wanted to ensure that the process was above-board and, to this end, requested from CPI Clauson the dedicated monitoring by a Postal Inspector. CPI Clauson has assigned Postal Inspector Edwards to this task. In the Fall of 1985, Postal Inspector Edwards was “still focused largely on the procurement and the need to have it go according to the procurement regulations.” Edwards Dep. at 292, Feb. 15, 2000. Postal Inspectors Hartman, Kormann, and McIntosh were subsequently assigned to the investigation. 31 When Postal Inspector Hartman joined the investigation, Postal Inspector Edwards told him that “[u]p until that point, there was an investigation or review of potentially improper activity by a particular Board of Governor member, Peter Voss. And also suspect activity by another governor, Ruth Peters.” 7/10/14 PM Tr. at 40-41 (Hartman testimony). .
The Postal Inspectors then became aware of an allegation made by AEG that “William Moore, the CEO of Recognition Equipment, Incorporated had- proposed a deal to split two contracts, one for REI and one for AEG Telefunken.” See 7/10/14 PM Tr. at 41 (Hartman testimony). AEG officials had filed a similar complaint with the German Embassy. 7/14/14 PM Tr. at 23 (Hartman testimony). This allegation posed an obvious risk of undermining the competitive testing of equipment envisioned by the mid-course correction and, as part of PMG Carlin’s direction to monitor closely the procurement process for the automation program, -the Postal Inspectors turned their attention to this allegation about the plaintiff.
1. November 1985 Interview with AEG Officials
In early November 1985, the Postal Inspectors interviewed AEG officials regarding their allegation that the plaintiff had proposed a deal to split the OCR procurement contracts. 7/10/14 PM Tr. at 43-44
Following the meeting with AEG representatives, the Postal Inspectors sought guidance from two supervising attorneys at the United States Department of Justice (“DOJ”)’s Public Integrity and Fraud sections. Postal Inspector Hartman testified that they met with the DOJ attorneys for “advice, guidance, [to] determine whether or not we could possibly start a grand jury investigation” because “[a]t that time, we had limited experience in antitrust matters” and whether the plaintiffs offer whs “an antitrust violation.” 7/10/14 PM Tr. at 44-45. According to the Postal Inspectors’ memorandum to their supervisor, CPI Cláuson, summarizing the DOJ meeting, the attorneys did not believe “that a federal'criminal act had occurred on the basis of direct evidence we have at this time,” but “were positive and supportive of our efforts to date.” Defs.’ Ex. 51 at 1. One of the DOJ attorneys even presciently opined that “[g]ratuities ... will be forthcoming.” Id. The DOJ attorneys recommended that the inspectors continue the investigation and suggested certain investigatory steps, including “investigating vendor’s (REI) intention and capability of actually competing on Phase II conversion” and analyzing documents “to detect and establish a pattern of irregular, possibly unethical behavior and possible perjury....” Id.
In accordance with the DOJ attorneys’ instructions, the Postal Inspectors continued their investigation by conducting interviews with persons within USPS and REI involved in the automation program and gathering documentary evidence based on the leads they garnered through these interviews.
2. November 20, 1985 Interview of Plaintiff and Subordinates
On November 20, 1985, Postal Inspectors Hartman and Edwards interviewed the plaintiff at REI headquarters in Dallas, Texas regarding AEG’s allegations. 7/10/14 PM Tr. at 51 (Hartman testimony). REI’s Vice President of Sales and Marketing, Robert Reedy and REI’s Vice President of Distributors Sales and Manager of Postal Programs, Frank Bray, were also present at this interview.
Id.
Postal Inspector Hartman asked “Mr. Moore, Mr. Reedy and Mr. Bray if any of them had ever met with or spoken to a Board of Governors member on an individual basis. In other words, one on one.”
Id.
at 56. This question was prompted by suspicions about whether Vice Chairman Voss “had some sort of financial relationship or reason that he was pushing so hard for a sole source contract with REI.”
Id.
“[I]f Voss does have an improper financial relationship with REI, then it would follow that he likely had- spoke[n] with them or met with them. So that is why I asked the question to see whether or not any of these gentlemen had met with or even spoke to a governor.”
Id.
at 57. When he asked the question, Postal Inspector Hartman “was looking at [the plaintiff]” but “Mr. Reedy answered that question .,. [h]is answer was no, that they had not met with any governor individually.”
Id.
Postal Inspector Hartman made a record of this answer in his notes that: “Reedy never talked to board members individually.” Defs.’ Ex. 52 at USA-01Ó-0529 (Hartman handwrit
The plaintiff denied any recollection of this question being asked or Mr. Reedy’s answer, and testified that if he had thought that Mr. Reedy had lied to the Postal Inspectors, he “would have said, Reedy, tell them the truth.” 6/24/14 AM Tr. at 122-23 (Plaintiff testimony).
3. Postal Inspectors Learn of Relationship between REI and GAI
In December 1985, the Postal Inspectors learned that REI had retained two consultants: GAI and Hill & Knowlton. 7/10/14 PM Tr. at 62-63 (Hartman testimony). They also learned through a Dun and Bradstreet report that GAI was a three-person firm based in Detroit, Michigan, with John Gnau as chairman,' William Spartin as president, and Michael Marcus as vice president and treasurer. Id. at 63-64. Postal Inspector Hartman placed a telephone call to GAI’s office and “the receptionist or the individual answering the phone said ‘MSL,’ ” which the Postal Inspectors found out was an executive recruitment firm with the same president as GAI: William Spartin. Id. at 64.' At the time, this fact “did not mean much,” but it became significant láter in the investigation. Id. át 64, 69 (Hartman testimony).
4. January 6, 1986 Firing of Postmaster General Carlin
On January 6, 1986, PMG Carlin was fired after just one year of service as PMG, and replaced by Albert Casey. 7/10/14 PM Tr. át 71-74 (Hartman testimony). Shortly thereafter, the Postal inspectors learned of two events that heightened their suspicions about REI’s involvement with possible corruption within USPS.
First, in what can only be called a strange coincidence, a Postal Inspector struck up a conversation with a female passenger sitting next to him on a train, , on December 13, 1985. When the woman found out that “he worked for the post
Second, on February 5,1986, a Congressional hearing on the topic of the firing of PMG Carlin revealed that USPS had hired MSL, which was headed by William Spar-tin, to find a replacement for PMG Carlin. Id. at 74. Ironically, PMG Carlin had initially hired William Spartin from MSL to do executive searches for USPS “[a]t the.strong urging and insistence of Peter Voss,” but PMG Carlin was unaware of Mr. Spartin’s association with GAI or REI. 7/8/14 AM Tr. at 109-10 (Carlin testimony). Postal Inspector Hartman testified that when he heard this information, “[a] large puzzle piece was now turned over and [the Postal Inspectors] ... had an idea of what [they] were investigating and what kind of activity [they] should be focusing on” because “[n]ow [they] had confirmation that a consultant to REI that had a relationship with MSL, .the head hunter to replace Paul Carlin, had an association with REI.” Id. at 74.
5. Postal Inspection Service Request for Initiation of Grand Jury Investigation
In February, 1986, the Postal Inspectors prepared a written report for the DC USAO charting the information they had gathered so far during the investigation and to request that a grand jury investigation be opened. See Defs.’ Ex. 55 (Postal Inspectors’ Preliminary Report, dated February 1986); see also 7/10/14 PM Tr. at 75, 80 (Hartman testimony). The DC USAO opened a grand jury investigation and authorized “the issuance of grand jury subpoenas for telephone toll records, bank account records and credit card records for some of the suspects.” 7/10/14 PM Tr. at 87 (Hartman testimony). 34 Postal Inspector Hartman testified that at this stage he would have characterized the investigation as a “joint investigation with the United States Attorney’s office and it ... became a grand jury investigation.” Id.
From responses to the grand jury subpoenas', the Postal Inspectors learned about check payments from GAI to Vice Chairman Voss’ company, as well as telephone calls between Voss and GAI and MSL.
Id.
at 87-88. Moreover, the Postal Inspectors discovered telephone calls, from July .through December 1984, between Vice Chairman Voss’ office and the REI extension assigned to the plaintiff.
Id.
at
6. April 1986 Confession of William Spartin About Illegal Scheme
In April 1986, William Spartin sought and obtained a non-prosecution agreement with the DC USAO in exchange for his cooperation. 35 Pl.’s Ex. 269 at 4-5 (Tr. of William Spartin Grand Jury, testimony, dated September 1, 1987) (“Tr. Spartin G.J. testimony”); 7/10/2014 PM Tr. at 93 (Hartman testimony). During this and many subsequent interviews, 36 Mr. Spartin revealed the “large conspiracy, kickback arrangement between John Gnau 'and Peter Voss. And he mentioned the relative role of John Gnau and Michael Marcus and the possible participation" of Robert Reedy and William Moore in that kickback arrangement.” 7/10/14 PM Tr. at 95 (Hartman testimony). Mr. Spartin described Vice Chairman Voss as the “mastermind of the whole deal,” id. at 94, including arranging for REI to hire John Gnau, id. at 95-96; Defs.’ Ex. 56 at 2 (Hartman handwritten notes of April 7, 1986 Interview of William Spartin, stating “Gnau said he got contract with REI through Voss”). The interview with Mr. Spartin provided “further evidence of Voss’ individual contact with people at REI and more significantly, that Voss had something to do with REI hiring [GAI].” 7/10/14 PM Tr. at 96. The Postal Inspectors were suspicious of Vice Chairman Voss’ recommendation of GAI because GAI was a small Michigan consulting firm with only three employees and “REI already had a large Washington, D.C. consulting firm, an international firm named Hill and Knowletori[sic]” working for them. Id.
Vice Chairman Voss also arranged, in early December 1985, for Mr. Spartin to
After Albert Casey was successfully installed as the new PMG in early January, 1986, “Gnau suggested they have a dinner meeting with REI officers to discuss new strategy for obtaining a sole source contract for REI from the USPS,” and this “victory” dinner was arranged for January 9, 1986 at the Madison Hotel. PL’s Ex. 137 at 21 (Spartin G.J. Interview Summary); PL’s Ex. 269 at 41-42 (Tr. Spartin G.J. testimony, referring to dinner “as a victory celebration”). Vice Chairman Voss subsequently confirmed information garnered from Messrs. Gnau and Spartin that the plaintiff “recommended A1 Casey for the position” to Mr. Spartin and further indicated his “impression from Spar-tin’s comments and actions that the multiline optical character reader contract would be wired to Recognition Equipment, Incorporated with the appointment of A1 Casey as Postmaster General.” Defs.’ Ex. 65 at 15 (Voss G.J. Interview Summary); see also PL’s Ex. 160 at 20 (Voss Interview on May 9, 1988, in which Voss “said there was a definite indication Spartin believed that Casey was acquainted with the MLOCR and would help REI get the contract”).
Mr. Spartin eventually testified, under oath, before the grand jury about his own involvement and’the role of others in the illegal scheme. He testified that, in his opinion, the plaintiff and Mr. Reedy knew that Vice Chairman Voss was' receiving money from Mr. Gnau relative to the MLOCR procurement. PL’s Ex. 269 at 10 (Tr. Spartin G.J. testimony). He explained the basis for this opinion as follows:
with the many conversations between Mr. Reedy and myself and the many conversations between Reedy and Mr.Gnau, and my conversations-with Gnau and Voss, that it became — at least in my opinion, I felt that Mr. Reedy knew that we were somehow taking care of Mr. Voss, because I rationalize that why would Mr. Voss be so adamant to help us and all the things he- was doing, which we relayed back to Mr. Reedy, just led me to believe that they had to come to the conclusion thаt somehow we were doing something to take care of Mr. Voss ... they had to know way down deep if they asked themselves or looked at the issue, that we were — GAI was handling Mr. Voss.
Mat 11.
In particular, Mr. Spartin highlighted Mr. Reedy’s inquiries about, “Why don’t you get Peter Voss to do this [referring “to order a-sole-source contract”]?,” indicating that he knew they had some .sort of control over Vice Chairman Voss. M. at 12. In addition, Mr. Spartin described “the.agitation on the part of both Moore and Reedy as to why things weren’t progressing faster, and they kept saying, ‘Geez, we lose any more time, we’re going to lose our competitive position. We need the .contract now. Why don’t you get Voss to do this, or why don’t you get Voss to do that.’ I mean, they felt all along that we were controlling Voss and they let their wishes known ... to both John and myself in terms of what they wanted us to do, and they wanted the whole thing expedited, they wanted the- competitive tests stopped. They just felt that we should do that.” M. at 12-13. 37 - ■-
7. April 8, 1986 Postal Inspector Interview with Plaintiffs Subordinates
On April 8, 1986, the Postal Inspectors interviewed Mr. Bray and Mr. Reedy at REI headquarters in Dallas. 7/10/14 PM Tr. at 97-98 (Hartman testimony). When Mr. Reedy was asked how REI came to hire GAI, he told the Postal Inspectors that he was introduced to GAI from someone at Hill and Knowlton. Id, at 98. 38 The Postal Inspectors later learned that this response was false and that Vice Chairman Voss had recommended GAI to Mr. Reedy at the dinner meeting in Dallas on September 3, 1984. Id. at 98; Defs.’ Ex. 65 at 4-5 (Voss G.J, Interview Summary).
At this' interview, the Postal Inspectors also asked Mr. Bray whether he knew who recommended GAI to REI, and he responded, “no.” 6/30/14 PM Tr. at 42 (Bray testimony). Mr. Bray admitted during his trial testimony that this response was a lie.
Id.
The Postal Inspectors also asked Mr. Bray at the April 1986 interview about whether he knew who had recommended Mr. Casey to be Postmáster General and
8. May 1986 Guilty Plea and Cooperation by Vice Chairman Foss
On May 9, 1986, Vice Chairman Voss was interviewed by the Postal Inspectors and “spilled his guts” about the kickback conspiracy. Edwards Dep. at 516-17, dated Feb. 15, 2000. He subsequently entered into a plea and cooperation agreement with the DC USAO. Pl.’s Ex. 165 (Voss Plea Agreement). Over multiple interviews with Vice Chairman Voss, the Postal Inspectors learned significant information about the operations of the illegal scheme, which they summarized into a single statement that was reviewed and adopted as true and correct by Vice Chairman Voss before the grand jury. Pl.’s Ex. 214 at 7 (Tr. Voss G.J. testimony confirming that he “met many, many days and spent many, many hours ... being debriefed by various members of the Postal Inspection Service since May 30th of 1986”); id. at 9 (Voss confirming that summary of interviews presented to grand jury was true and accurate “to the best of my memories”); Defs.’ Ex. 65 (Voss G.J. Interview Summary); 7/7/14 AM Tr. at 48 (Hartman testimony); 7/11/14 AM Tr. at 6 (Hartman testimony); Voss Dep. at 42, Jun. 6, 2014.
Vice Chairman Voss confirmed that, in 1984, he and Mr. Gnau entered into “a business arrangement wherein Voss would refer potential clients to John R. Gnau and Gnau’s public relations firm, [GAI]. Mr. Voss and Mr. Gnau agreed that [] Voss would receive a commission equal " to 30% of the fees generated by Voss’ referrals.” Defs.’ Ex. 65 at 1-2 (Voss G.J. Interview Summary). In August or September, 1984, REI’s Vice President of Marketing, Mr. Reedy, contacted Voss and invited him to dinner “to discuss the REI point of view on the -multi-line' issue.” PL’s Ex. 160 at 4 (Voss Interview on May 9, 1986); PL’s Ex. 214 at 14 (Tr. Voss G.J. testimony). At the dinner meeting, Vice Chairman Voss told Mr. Reedy that REI “was mistakenly presenting an emotional plea to the [USPS] for the sale of multiline optical character readers” when “it should be a more businesslike or intelligent presentation'.” Defs,’ Ex. 65 at 4 (Voss G.J. Interview Summary). When Mr. Reedy advised Vice Chairman Voss that REI’s public relations were being taken care of by Hill & Knowlton, Vice Chairman Voss recommended that REI retain Detroit-based GAI in the company’s dealings with USPS. Id. at 4-5. Vice Chairman Voss said that he realized he would receive 30% of all fees that REI paid GAI. Id. at 5.
Vice Chairman Voss’ purpose in pushing REI to retain GAI was corroborated by his then-administrative assistant, Sharon Peterson, who entered into a non-prosecution agreement with the government and testified before the grand jury within a few weeks of Vice Chairman Voss. Vice Chairman Voss and Ms. Peterson told the Postal Inspectors that, after the dinner meeting yvith Mr, Reedy, they alerted Messrs. Marcus and Gnau about USPS MLOCR and automation issues, arranged for them to meet with PMG Carlin in January, 1985, and urged REI to consummate the hiring of GAI. PL’s 535 at 5-6 (Peterson G.J. Interview Summary, noting her belief that arranging meeting between PMG Carlin and GAI “aided GAPs efforts to finally obtain a contract with REI”); Defs.’ Ex. 65 at 5 (Voss G.J. Interview Summary).
When REI later hired GAI, Vice Chairman Voss “stated that on several occasions during 1985, he discussed with Michael Marcus, John Gnau and William Spartin, both individually and collectively,
Both Vice Chairman Voss and Ms. Peterson told the grand, jury that as part of the effort to obtain a USPS procurement contract for REI, Mr. Marcus prepared position papers, memoranda, and letters expressing the views of REI and that were signed by BOG Governor Ruth Peters, who mistakenly believed they were written by Vice Chairman Voss. Id. at 8; PL’s Ex. 535 at 7 (Peterson G.J. Interview Summary, stating that “Michael Marcus prepared position papers, letters and memorandums on behalf of the Technology and Development Committee of the Board of Governors,” which documents were furnished “to Ruth Peters as the independent and objective work product of Mr. Voss and Mrs. Peterson.”). This information was corroborated by Mr. Marcus, who admitted to Postal Inspectors that he “routinely and actively authored Technology and Development Committee letters and memoranda which were furnished USPS management ... as the independent and objective work product of either Peter Voss or the Technology and Development Committee.” PL’s Ex. 196 at 14 (Memorandum of Interview of Michael Marcus on August 5 and 6,1986).
Vice. Chairman Voss also gave GAI “internal [USPS] briefing documents” to assist GAI and REI in refuting the ÚSPS OCR technology plans. Defs.’ Ex. 65 at 8 (Voss G.J. Interview.Summary). Mr. Marcus confirmed that “during the course of the REI/GAI relationship, [ ] Peterson and [ ] Voss routinely furnished [him] with the content of USPS policy deliberations, internal memorandums related to the single-line/multi-line controversy and proposals furnished the USPS by ElectroCom Automation (ECA), REI’s competitor.” PL’s Ex. 196 at 13 (Memorandum of Interview of Michael Marcus on August 5 and 6, 1986); see also PL’s Ex. 535 at 7 (Peterson G.J. Interview Summary, stating that she furnished to “GAI, and Mr. Marcus in particular, copies of internal [USPS] documents concerning the automation issue ... so he could rebut [USPS] policy.”).
The assistance to REI went even deeper than preparation of position papers, which appeared to be authored by the key BOG Technology Committee when they were actually written by REI’s consultants. Vice Chairman Voss confirmed the involvement of the coconspirators, Messrs. Gnau and Spartin, in the removal of PMG Carlin, whom they believed “was the stumbling block to [REI’s] receipt of a [USPS] production award.” Defs.’ Ex. 65 at 13 (Voss G.J. Interview Summary). Ms. Peterson stated that the three GAI employees, Messrs. Gnau, Marcu and Spartin “recommended to Voss that Carlin be fired due to his nonsupport of REI and failure to follow Voss’ instructions to make a sole source award to REI” and that “Peter Voss actively pursued the removal of Paul Carlin as [PMG] because Carlin was gen
After new PMG Albert Casey was in place, BOG Chairman John McKean discovered that William Spartin had been retained to find the new PMG while also serving as the president of REI’s consulting company. Vice Chairman Voss contacted Mr. Spartin “and advised him of McKean’s knowledge of the Gnau/Spartin . relationship.” Id. at 16. Mr. Spartin responded that he would contact the plaintiff and discuss the circumstances surrounding the Casey recommendation, and later informed Vice Chairman Voss that, having discussed the matter with the plaintiff, Mr. Spartin was going to state that Carla Hills, not the plaintiff, recommended Albert Casey to be the next PMG. Id.
Vice Chairman Voss told the Postal Inspectors that “he did not know if REI knew that he [Voss] was getting money from John Gnau.” PL’s Ex. 160 at 12 (Voss Interview Memorandum, dated May 9, 1986); see also 7/15/14 PM Tr. 118-20 (Edwards testimony); Voss Dep. at 41, 52, Jun. 12, 2014. Consequently, his testimony before the grand jury made no reference-to his personal knowledge or opinion about whether the plaintiff or other REI employees were aware that REI’s payments to GAI were paid, in part, to Voss in an illegal bribery ■ and kickback scheme. See generally Defs.’ Ex. 65 (Voss G.J. Interview Summary); PL’s Ex. -214 (Tr. Voss G.J. testimony). Vice Chairman Voss testified that “I think if — if implicating [the plaintiff] would have helped me and it had been true, I would have done it. I told the truth.” Voss Dep. at 52.
■Shortly after Vice Chairman Voss pleaded guilty, on May 30, 1986, to accepting a gratuity and embezzlement and misappropriation of government property, PL’s Ex. 538 at ¶ 20 (Stipulated Facts), AUSA Joseph Valder was newly assigned to the case. Id. at 101. AUSA Valder remained the prosecutor on the case for the rest of the investigation and the Postal Inspectors communicated with him regularly about the progress of the investigation. Id. Shortly after this guilty plea, the USPS suspended the competitive testing underway for the next phase of the automation program, 7/16/ 14 AM Tr. at 37-38 (McIntosh testimony), “pending the outcome of the investigation relative to Voss’ corrupt influence on the automation program,” PL’s Ex. 291 at 108 (Details of Offense); PL’s Ex. '229 at 71, 77 (ZIP+ 4 Report) (noting that both ECA and REI were selected as vendors to participate in the Phase IIA competitive test, which began in late May 1986; “to design a conversion kit to retrofit the Electrocom Automation Phase II machines to multi-line” but the test was suspended on about June 6, 1986). 39
9. July 25 — 26, 1986 Follow-up Interviews of Plaintiff and Subordinates and Review of Plaintiff’s Notebooks
With the revelations of Messrs. Spartin and Voss, the Postal Inspectors arranged another ..meeting with REI officials for July 25-26, 1986. 7/11/14 AM Tr. at 106-OS. This turned out to be the last interview with the plaintiff prior to his. indictment. 7/14/14 PM Tr. at 82 (Hartman testifying: “we were not. able to interview Mr. Moore after July of 1986”). Postal Inspector Hartman testified that the most significant take away from the July 1986
Prior to the interview, the plaintiff had produced, in response'to an April 17;'1986 grand jury subpoena, a photocopy of a single notebook maintained by the plaintiff that was labeled “Postal.” 7/11/14 AM Tr. 93 (Hártman testimony). The original notebook contained “eighty-sheets” according to the cover. Id. The photocopied notebook provided to the Postal Inspectors, however, contained only fifty-four sheets. Id. at 94. At the time of the July 1986 interview, the Postal Inspectors were not aware that thirty-six pages were missing from the plaintiff’s “Postal” notebook because “[i]n the photocopy page you could not read how many sheets were supposed to be in the journal.” Id. at 93-95. The Postal Inspectors, only obtained the origb nal, notebook in response to a grand jury subpoena sometime after the interview. Id. at 95; see Pl.’s Ex. 183 (Grand Jury-subpoena issued Feb. 9, 1987, requesting production, inter alia, of “[a]ny and all original notebooks, diaries, notes ... prepared by or for REI officers and directors relative to ... services performed by [GAI]....”).
The plaintiffs “Postal” notebook contained entries for. September 1985 through January 6, 1986, the date on which PMG Carlin was fired as postmaster general, but no dated entries for February through May 1986, with the last entry in the notebook dated June 24, 1986. 7/11/14 AM Tr. at 94-96 (Hartman testimony). The Postal Inspectors found suspicious that this notebook contained an entry labeled “Closed Session,” which appeared to reflect information relayed in a closed BOG session that occurred on December 2, 1985. 7/11/14 AM Tr. at 99 (Hartman testimony). More troubling to the Postal Inspectors, however, was the fact that this Postal notebook was missing more, pages than any other of the plaintiffs - eleven notebooks over the same general time period. 6/25/14 AM Tr. at 50 (Plaintiff testimony). The Postal Inspectors’ suspicion only increased when the ■ Postal Inspectors learned from co-conspirators about discussions, among the co-conspirators and the plaintiff to purge their files. PL’s Ex, 196 at 22 (Interview Summary of Michael Marcus presented to grand jury on Oct. 23, 1986) (“Marcus. G.J. Interview Summary”), indicating “Mr. Marcus stated that Spartin reported that Reedy, Moore, Gnau and Voss have already met and developed a story to cover up their involvement. Spar-tin added that they had purged their, files and he urged Marcus tó meet with Gnau to develop their story.”); 7/11/14 AM Tr. at 37-38 (Hartman testimony); 7/14/14 PM Tr." at 69 (Kormann testimony that “And during the coursés of our interviews certainly Mr. Spartin and Mr. Gnau, there was, they referred to conversations they had with Mr. Moore about getting their stories straight, purging their files, et cetera”).
Other notebooks maintained by . the plaintiff also contained entries that the Postal Inspectors found suspicious. For example, the plaintiffs September 1984 notebook contained an entry, dated December 18, 1984, with notes from a telephone conversation with Vice Chairman Voss, noting “Get John Knau [sic] involved. Have broad scale association with John. Get together. Call Peter Voss” and" “the business to be had here is substantial.” Defs.’ Ex. 180 at 308171 (September 1984 Plaintiff Journal Entries); 7/14/14 PM Tr. at 79 (Kormann testimony). The Postal Inspectors were also concerned by an April 1985 journal entry where the plaintiff
10. Subsequent Interviews of Co-Conspirators
Through the latter part of 1986 and early 1987, the DC USAO was continuing, with the assistance of the Postal Inspectors, to review, documentation produced in response to gr.and jury subpoenas, present testimony to the grand jury, and investigate other co-conspirators. These efforts were largely successful and resulted in the guilty pleas of (1) John Gnau, GAPs Chairman, to one count of conspiracy to defraud the Government and one count of the payment of illegal gratuities, on October 17, 1986, and (2) Michael Marcus, GAPs vice president and treasurer, to two counts of aiding and abetting paying illegal gratuities to Vice Chairman Voss, on January 20, 1987. PL’s Ex. 538 ¶¶23, 26 (Stipulated Facts); 7/10/14 PM Tr. at 102 (Hartman testimony). Both Messrs. Gnau and Marcus testified before the grand jury on October 16 and 23, 1986, respectively. PL’s Ex. 538 ¶ 22, 24 (Stipulated Facts).
For both of these witnesses, the Postal Inspectors and AUSA Valder prepared summaries of the information garnered over multiple interviews, and those summaries, after review and editing by the witnesses, were presented to the grand jury as the significant part of their testimony. 7/10/14 PM Tr. at 113-14 (Hartman testimony); Pl.’s Ex. 206 at 1 (Gnau G.J. Interview Summary) (noting that contents recount “a summary of statements made -to Postal- Inspectors by John R. Gnau, Jr. on September 23 and 30 and October 1 and 9,1986”); PL’s Ex. 210 at 8-9 (Tr. of John Gnau Grand Jury testimony, dated October 16, 1986) (“Tr. Gnau G.J. testimony’), confirming that the interview summary is “true and accurate to the best of [his] knowledge and belief’); PL’s Ex. 196 at SMFC4 10997 (Memorandum of Interview of Michael B. Marcus, bearing handwritten notation from witness that, “the Memorandum, as. corrected is true to the best of my knowledge”).
Mr. Gnau stated that he first heard about REI in late summer 1984 from Vice Chairman Voss, With whom he already had in place an agreement to pay- 30% of any fees paid to GAI from contacts provided by Voss. PL’s Ex. 206 at 6, 8 (Gnau G.J. Interview Summary). “Voss told Gnau there was an opportunity to make a lot of money with REI because they (REI) could use help in obtaining Postal Service contracts.”
Id.
at 8. When Mr. Gnau met Mr. Reedy for the first time in October 1984, at the Dallas-Fort Worth Airport, “Reedy stated, Voss said you can do great things.” Mr. Reedy said that “Peter [Voss] and Bill [Moore] have a friendship and we need help in getting a Postal Service contract.”
Id.
at 8; PL’s Ex. 210 at 9 (Tr. Gnau G.J. testimony): Mr. Gnau “suggested” to Mr. Reedy “that [he] not mention Peter Voss’ name but simply refer to him as ‘our friend,’ ” to which Mr. Reedy responded, “ T understand.’ ”■ PL’s Ex. 206 at 8-9 (Gnau G.J. Interview Summary).- The Postal Inspectors found this interchange suspicious because of the acknowledgment to keep “the relationship between REI, GAI, and.Voss a secret.” 7/10/14 PM Tr. at 118 (Hartman testimony). Moreover, at this first meeting, Mr.
At Mr. Gnau’s first meeting with the plaintiff at REI’s headquarters in Dallas, on January 3, 1985, Mr. Gnau promised “that he could obtain a sole source contract for REI, multi-line character readers” in 120 days. 7/10/14 PM Tr. at 116-17 (Hartman testimony); PL’s Ex. 206 at 10 (Gnau G.J. Interview Summary). According to Mr. Gnau, the plaintiff responded “that scares me.” 7/10/14 PM Tr. at 117 (Hartman testimony); PL’s Ex. 206 at 10 (Gnau G.J. Interview Summary). Michael Marcus accompanied Mr. Gnau on this trip and confirms the substance of this conversation, stating that “Gnau told REI that he could deliver a production award in 90 to 120 days” and that REI “was curious as to how GAI could deliver in 3-4 months what William Moore could not deliver in three years.” PL’s Ex. 196 at 10 (Interview Summary of Michael Marcus presented to Grand Jury on Oct. 23, 1986 (“Marcus G.J. Interview Summary”)). In response to this query, “Gnau told REI that GAI would build REI support at the Board of Governors level through the Technology and Development Committee. Gnau stated that Voss would help influence [this] Committee” and “the implication was that Voss was Gnau’s man.” Id.
The general substance of this conversation is also confirmed by the plaintiffs handwritten notes in one of his notebooks, which were produced to the government “in the latter part of 1986.” 7/14/14 PM Tr. at 84 (Hartman testimony). The plaintiffs notes indicate a meeting on “1-3-85” with “Mike,” referring to Michael Marcus, and Mr. Gnau, noting “timeframe (3-4 months).” Defs.’ Ex. 181 at 307351 (Plaintiffs January 1985 Notebook). The Postal Inspectors found this information suspicious in terms of reflecting the plaintiffs awareness of the criminal conspiracy “[b]e-cause [the plaintiff] was unable to get á contract for the prior two plus years” and “[n]ow a consultant walks into his office and said I can get one in 12Ó days.” 7/14/14 PM Tr. at 83-84 (Hartman testimony).
In the Spring of 1985, Mr. Gnau reported that he spoke privately with Mr. Reedy, who asked “what’s your arrangement with Peter Voss? John Gnau said, it’s better you not know.” 7/15/14 AM Tr. at 36 (Hartman testimony, reading from Defs.’ Ex. 210 (Hartman Notes of Oct. 1, 1986 Interview of John Gnau)). The Postal Inspectors found this interchange to be indicative of REI’s acknowledgment of the suspicious circumstances surrounding the GAI and Peter Voss relationship. Id. at 72 (Hartman testimony).
Subsequently, on August 29, 1985, Messrs. Spartin, Gnau, and Marcus met with Mr. Reedy in Dallas and negotiated an increase in their contract payments from REI to $22,000 per month to GAI going forward. PL’s Ex. 206 at 14 (Gnau G.J. Interview Summary); 7/10/14 PM Tr. at 119-20. (Hartman testimony). Mr. Reedy commented to Mr. Gnau: “I know you have people to take care of.”
Id.
Mr. Marcus confirms hearing this statement from Mr. Reedy and stated “his belief that
Finally, Mr. Gnau corroborated Mr. Spartin’s information about the plaintiffs role in recommending the replacement for PMG Carlin, a role that the plaintiff admits. Specifically, he told the Postal Inspectors that the plaintiff had recommended three names to William Spartin, including that of Albert Casey, who ultimately replaced PMG Carlin.' ’PL’s Ex. 206 at 17 (Gnau G.J. Interview Summary); see also 6/24/14 AM Tr. at 162-64 (Plaintiff testifying that in response to' Mr. Spartin’s request for recommendations for the new PMG, he recommended three people, including Albert Casey). He also reported that the plaintiff attended the “victory celebration” on January 9, 1-986 for getting “our man in.” PL’s-Ex. 206 at 18 (Gnau G.J. Interview Summary). The plaintiff confirms that he was at this dinner where Mr. Spartin “was'going to brag about the great job he had done of putting a new Postmaster General in plac'e” and “destroying]” former PMG Carlin. 6/24/14 AM Tr. at 165-66 (Plaintiff confirming that “Yes, [Spartin]' must have said something like that [referring to question:]” “Didn’t Spartin tell yoü that Carlin had been destroyed?”] ).
According to the plaintiff, he discounted GAPs information when he was told, as early as November 1985, that PMG Carlin was going to be fired because “why would the. postal service put a new Postmaster General in who I thought was doing a good job and fire them a year later? That was beyond my comprehension.” 6/24/14 AM Tr, at 160-61 (Plaintiff testimony). This purportedly positive view of PMG Carlin cannot be reconciled with the plaintiffs complaints that PMG Carlin “didn’t want to see me. He didn’t want me to come in and talk to him. I wanted to talk to him just like I talked to Bolger, and he wasn’t interested in doing it,” 6/24/14 AM Tr. at 152, and Frank Bray’s view, as REI’s manager in charge of the USPS business, that PMG Carlin was stymieing REI’s efforts for a USPS contract,
see
PL’s Ex. 262 at 55-56 (Tr. Bray G.J. testimony, in which Bray testifies that, at June 5,1985 meeting among plaintiff, Gnau, Marcus and others at REI, they discussed that PMG Carlin and James Jellison were “both opposed to REI getting a sole-source procurement”);
id.
at 83-84 (Bray - testifying that “every time it appeared that there was a recommendation from the- Technology Committee or the Board to proceed with sole-source procurements either to REI or splitting with REI and ECA, that manage
After the public revelation of Mr. Spar-tin’s significant connections to GAI and REI, Mr. Gnau told the Postal Inspectors that he had two conversations with the plaintiff about Mr. Spartin’s effort to “cover-up” these connections.” Mr.' Gnau reportéd that, in the first conversation, “Reedy and Moore advised Gnau, ‘Our attorneys are nervous about this meeting, but we aren’t trying to do anything wrong.’ Moore told Gnau he was nervous about Spartin’s attempted cover-up.” PL’s Ex. 206 at 21 (Gnau G.J, Interview Summary). In the second conversation with the plaintiff in late May, 1986, at a political fund raising event in Washington, D.C., “Moore said he was uncomfortable with the coverup that he and Spartin had agreed upon. Gnau stated it was apparent that Spartin had agreed to protect Moore and credit someone other than Moore with recommending Albert .Casey’s name.” M
40
The
Messrs. Gnau, Spartin, Voss and Marcus and Ms. Peterson offered no testimony that any one of them ever directly told the plaintiff or any other REI employee that GAI was paying off Vice Chairman Voss. See, e.g., 7/7/14 AM Tr. at 49-50 (Hartman testimony); Pi’s Ex. 206 at 21 (Gnau G.J. Interview Summary, stating: “Moore and Reedy wanted to know about the involvement of Voss and Gnau in any illegal activity that they should know about. Gnau told them, “It’s better that you don’t know.”); Pl.’s Ex. 160 at SMFC4 09901 (Voss Interview on May 9, 1986, reporting that “he did not know if REI knew that he [Voss] was getting money from John Gnau”); Voss Dep. at 52, Jun. 12, 2014 (Voss stating that he did not have direct knowledge as to whether the plaintiff knew of the conspiracy); see generally PL’s Ex. 214 (Tr. Voss G.J. testimony); PL’s Ex. 211 (Tr. of Michael Marcus Grand Jury testimony, dated October 23, 1986 (“Tr. Marcus G.J. testimony”)); PL’s Ex. 204 (Tr. Peterson G.J. testimqny). All of the coconspirators, however, told the Postal Inspectors that, the plaintiff must have known about the conspiracy. 7/15/14 AM Tr. at 104-105 (Kormann testimony). Mr. Spartin expressed his opinion to the grand jury that the plaintiff and Mr. Reedy knew that Vice Chairman Voss was receiving money from Mr. Gnau with respect to the MLOCR procurement. PL’s Ex. 269 at 10 (Tr. Sjpartin G.J. testimony, stating, in response to question, “Do you recall that you told [the Postal Inspectors in- August 1987] that in your judgment Moore and Reedy did know that Voss was receiving money from Gnau relative to the MLOCR procurement?,” that “A: That is my opinion, yes, sir.”). 41
Another witness, Frank Bray, REI’s manager of postal programs, presented generally exculpatory testimony to the grand jury, testifying about the occasions when the plaintiff and Mr. Reedy had queried John Gnau about the source of GAI’s influence over Vice Chairman Voss. He testified that: “Robert Reedy asked John Gnau ‘point blank’ whether or not he paid anyone to obtain a MLOCR contract
In addition to the exculpatory testimony provided 'by Mr. Bray, AUSA Valder testified that the grand jury was advised on multiple occasions that the case against the plaintiff and his co-defendants was circumstantial, stating:
I must have told that grand jury 10 times if not 20 times that there was no evidence anywhere that anyone had told Mr. Moore or Mr. Reedy directly that Gnau was paying Voss off, that it was a circumstantial case. I said that dozens of times. If you look at the day I last discussed the case with the grand jury, I said it right there again. And if you look at the various things I said to the grand jury, I told them repeatedly, you now, again out of ,fairness to Mr. Moore, Mr. Reedy, REI, just like with Mr. Spartin, it was a very difficult question. It was a circumstantial question. One you had to draw an inference from which I and my entire supervisory cadre including Mr. Leeper as far as the conspiracy count, agreed with.
7/16/14 PM Tr. at 85-86*
C. Consideration of Indictment by D.C. U.S. Attorney’s Office
The DC USAO spent many months engaged in a thorough review of the evidence and proposed charges in the indictment against the plaintiff and his co-defendants. As the then-Chief of the Criminal Division, H. Marshal Jarrett, testified “the U.S. Attorney directed that we have a high level of review, and that’s what we did.” 7/10/14 AM Tr. at, 4Í-42 (Jarrett describing the level of review of the plaintiffs case as “decidedly at the thorough end of the spectrum”); • 7/17/14 AM Tr. at 27-28 (Valder testimony); id. at 127 ‘(Knight testimony). To execute this “high-level” review, a committee. consisting of no fewer than six AUSAs, including H. Marshall Jarrett, then-Chief of Special Prosecutions Paul Knight, then-Deputy Chief of Special Prosecution Charles Leeper, and other AUSAs William Birney, William Block and/Rhonda Fields, and the then-U.S. Attorney Jay Stephens, were involved in reviewing the evidence and the proposed indictment. 7/2/14 AM Tr. at 103-07 (Leeper testimony); see also 7/17/14 AM Tr. at 125-26 (Knight testimony).
Members of the review committee met on at least seventeen separate occasions to discuss and evaluate the proposed indictment.
See
7/16/14 PM Tr. at 100 (Valder testimony). AUSA Valder testified that by “the end [he] believe[d] there were 15 to 17 prosecutors, supervisors, and department attorneys who had reviewed [the proposed indictment] ... [a]nd [he] just can’t
As part of the review procedure, the prosecutors considered investigative materials provided by the Postal Inspectors that were compiled into a 150-page document entitled the “Details of Offense,” which was intended “to provide a background and chronological detail of the evidence in the case” garnered during the investigation. 7/15/14 AM Tr. at 75 (Kormann testifying that the “Details of Offense” “present[ed] a complete summary of the evidence ... that [the Postal Inspectors] had gathered in a form that the U.S. [Attorney could readily review”); 7/10/14 PM Tr. at 109 (Hartman testimony); Pl.’s Ex. 291 (Details of Offense). The evidence described in the “Details of Offense” was gathered “[t]hrough interviews and grand jury subpoenas of documents,” 7/10/14 PM.Tr. at 108 (Hartman testimony), as well as “phone records, Mr. Moore’s notebooks, REI phone logs, et cetera,” 7/15/14 AM Tr. at 76 (Kormann testimony). This was a “working document” that grew in length as new evidence was discovered and presented to the U.S. Attorney’s office on a “very regular basis.” 7/10/14 PM Tr. at 108 (Hartman testimony); see also 7/15/14 AM Tr. at 75 (Kormann testimony); 7/16/14 PM Tr. at 87 (Valder testimony). In addition, the DC USAO considered a 300-page joint Submission from REI, the plaintiff, and Mr. Reedy presenting their perspective on the evidence as showing a lack' of sufficient knowledge and/or involvement in the kickback and bribery conspiracy to support an indictment. See Defs.’ Ex. 8 (February 5, 1988, REI Joint Submission to DC USAO).
Confronted, with these two perspectives on the events at, issue, the prosecutors conducting the review within the. DC USAO engaged in considerable debate and discussion about whether and what charges should be brought against REI and any of its employees. Supervising AUSAs Paul Knight and Charles Leeper authored two memoranda about the issues at stake, offering differing views on whether an indictment should be brought.
See
Defs.’ Ex. 10 (June 1988 DC USAO Mem.); PL’s Ex. 313 (Supplement to June 1, 1988 Memorandum (“Supp. DC USAO Mem.”), noting that “[s]ince.our last memorandum, [they had] conducted a further review of the evidence and, along with Bill Block, formulated recommendations” with respect to each proposed count). The reviewing AUSAs recognized that “one of [their] most difficult tasks has been to ascertain whether REI was guilty of criminal acts or just, engaged in very, aggressive, and even ‘sharp’ business practices” because “[t]here [was] no question that they played ‘hardball’ with the Postal Service and their competitors; it is not as clear that their actions were criminal.” Defs.’ Ex. 10 at 1 (June 1988 DC USAO Mem.). “Rather than try to summarize all of the evidence,” they recommended that the U.S. Attorney himself “review the attached ‘Details of the Offense’ which provided] an excellent summary and index of the key events in the case.”
Id.
at 12. They further noted that “[t]he facts underlying th[e] indictment are complicated and the evidence [was] entirely circumstantial,”
id.
at 1, which was a consideration stressed in the joint submission by the ‘prospective defendants,
id.
at 2. Consequently, the DC
In addition to permitting a substantial defense submission, the DC USAO also provided defense counsel an opportunity to make an oral presentation in an effort to dissuade the prosecutors from pursuing an indictment against the plaintiff and his co-defendants. On September 22, 1988, defense counsel met with then-U.S. Attorney Jay B. Stephens and other AUSAs, including Bill Birney, Bill Martin, Marshall Jarrett, Paul Knight, Charles Leeper, and Joseph Valder. 7/15/14 AM Tr. at 119-20 (Kormann testimony); see also Defs.’ Ex. 81 at 1 (Handwritten Notes of September 22,1988 USAO Meeting).
In the end, only one of the reviewing prosecutors, Charles Leeper, recommended that no indictment be brought but even he testified that “reasonable minds [could] disagree” about the issue. 7/2/14 AM Tr. at 116 (Leeper testimony). By contrast, more senior prosecutors, including his direct superior, then-Chief of Special Prosecutions Paul Knight, and then-Criminal Chief Marshall Jarrett, disagreed with this recommendation believing that charges should be brought against the plaintiff and his co-defendants. 7/10/14 AM Tr. at 43, 64-65, 68 (Járrett testimony); see Defs.’ Ex. 10 at 1 (June 1988 D C. USAO Mem.); PL’s Ex. 313 at 1 (Supp. D.C. USAO Mem.). Ultimately, then-U.S. Attorney Jay Stephens, made the .decision to approve the indictment.of the plaintiff and co-defendants. 7/2/14 AM Tr. at 45, 66 (Leeper Testimony). 43 The grand jury returned an indictment against the plaintiff on October 7, 1988. See PL’s Ex. 326 (Indictment against Plaintiff, Mr. Reedy and REI). 44
Following the plaintiffs acquittal, defense counsel filed a complaint with the Department of Justice’s Office of Profes
A year and a half later, OPR responded to defense counsel’s complaints, concluding with respect to the review process that:
The supervisory process that resulted in [the decision to indict the plaintiff, Mr. Reedy, and ■ REI] was ■ exhaustive. There were numerous meetings at which the merits of the case were debated and analyzed. Memoranda which scrutinized each count of the proposed indictment were prepared and circulated.- In the course of that procedure, the indictment was modified and refined several times before final approval. As a result, the problem areas of the case, including the state of knowledge of the defendants, were identified and fully , considered. In addition; extensive presentations on behalf of the defendants were made to both the U.S. Attorney and the Department prior to the approval of the indictment, and those presentations produced even more supervisor review, further analysis of the case, and additional fine-tuning of the indictment. In the light of the extensive and extraordinary review afforded this matter, we cannot conclude that the review process for this indictment was deficient.
Defs.’ Ex. 87 at 2 (Letter, dated May 30, 1991, from OPR to Defense Counsel).
While “[i]t would be easy, given the benefit of hindsight, to conclude that in light of the judgment of acquittal the decision to indict was clearly incorrect,” OPR further determined that examination of the record reveals “a rational basis for the U.S. Attorney’s-decision” as well as “sufficient evidence supporting] the government’s theory of the case.” Id. As support for this determination, OPR cited “e.g., the apparently missing pages from Mr. Moore’s spiral notebooks and Mr. Reedy’s apparently false statements to the Postal Inspectors, as well as his seemingly conscious disregard for the signals — ‘it’s better that you don’t know about the relationship between Gnau and Voss’ — he was receiving.” Id. at 2.
In sum, review of the evidence in this case and proposed indictment were given a high level of attention and consideration within the ‘ DC USAO and, despite the presentations by defense counsel, all of the prosecutors, but one, believed that the evidence was sufficient to prove, beyond a reasonable doubt, that the plaintiff and his co-defendants were guilty of the charges in the indictment. See 7/2//14 AM Tr. at 110; 103-07 (Deeper testimony); see also 7/17/14 AM Tr. at 125-26 (Knight testimony).
D. Plaintiff’s Alleged Damages
The plaintiff demanded a total of $235,191,398.90 in lost compensation, emotional and. reputational damages from the defendants, as well as punitive damages. 6/27/14 AM Tr. at 39-40 (Dr. Fanara Testimony).
46
Despite devising the litigation
Mr. Cruse confirmed the plaintiffs view that his future professional career, but for the indictment, would have produced the following successes: (1) the plaintiff would have remained CEO of REI for at least another three years, when REI would have reached $750 million in annual revenues, see 6/24/14 PM Tr. at 97 (Plaintiff testimony); (2) the plaintiff woulcl' have left REI in 1994 to become a ■ CEO . of .a larger company, which would have provided compensation packages comprised of base salary, performance-related bonuses, and stock options, 6/24/14 PM Tr. at 97-98 (Plaintiff testimony); (3) the plaintiff would have retired as a CEO of a larger, publicly traded company than REI at the age of sixty-five, 6/24/14 PM Tr.- at 90 (Plaintiff testimony); and (4) the plaintiff would have continued working on boards until the age of seventy-two, 6/24/14 PM Tr. at 98-100 (Plaintiff testimony). 6/26/14 PM Tr. at 15-16 (Cruse testimony). Due to the perpetual taint or stigma of being indicted, Mr. Cruse stated that, as an executive search recruiter, he would not have recruited the plaintiff for a position as CEO or Director. Id. at 9-10. In addition, Mr. Cruse testified that he was nоt aware of any instance where someone has been indicted and acquitted, and still became, the CEO .or Director of a major, publicly traded company. Id. at 10-11.
Predicated on the testimony of the plaintiff and Mr. Cruse about the plaintiffs intended and anticipated career path, Dr. Betsy testified that the plaintiffs total lost cash compensation from 1989 through 2011 would be $13,324,477. 6/26/14 PM Tr. at
94
47
He based this on the average "cash compensation packages and board fees at the representative companies chosen by Mr. Cruse, 6/26/2014 PM Tr. at 82-90 (Dr. Betsey testimony). ■ Dr. Betsey added these two estimates from lost' compensation garnered as a CEO and lost compensation garnered as a Director and deducted from this total estimate the actual income the plaintiff earned as a consultant at the Grayson Group for the period
Finally, Dr. Fanara testified as to the plaintiffs losses from lost stock option opportunities, predicated upon the plaintiffs testimony about his intended career path, Mr. Cruse’s opinion about the' plaintiffs career prospects (if not for the indictment), and Dr. Betsey’s estimated lost compensation. Dr. Fanara estimated the value of the plaintiffs lost stock options to be $187,000,000. 6/27/2014 AM Tr. at 73-74. He calculated this estimate by averaging the value of the options. actually received by the CEOs at the representative companies chosen by Mr. Cruse, and applying a rate of return of 8.8 percent. 48 6/27/2014 AM Tr. at 32-35. Applying the same rate of return to the plaintiffs total lost cash compensation,- assuming it were invested in a conservative, balanced portfolio, Dr. Fanara estimated the plaintiffs loss would be $48,012,793.76. 6/26/2014 PM Tr.. at 95-97; 6/27/14 AM Tr. at 35 (Fanara-testimony). By adding up the lost stock options and other stock compensation with the lost cash compensation, Dr. Fanara testified to a total damages loss of $235,191,398.90. 6/27/2014 AM Tr. at 40-41.
The defendants countered the plaintiffs “astronomical” damages claim with the testimony of Dr; Jerald-Udinsky, a financial and ■ rehabilitation economist, 49 who opined' that, based upon the plaintiffs work history, education, and performance at 'REI, his income -as the owner of the Grayson Group is representative of his age-earnings profile and that, consequently, the plaintiff did not suffer economic damages from the indictment. 7/16/14 PM Tr. at 173-74. 50 As support for this opinion, Dr. Udinsky cited several circumstances. First, following his acquittal, the plaintiff served as the CEO of two other companies but was not successful. 7/16/14 PM Tr. at 169. Second, REl’s revenue growth during the plaintiffs tenure as CEO was not sustainable since the growth was due to a one-time sale of REI real estate and severe'cutbacks in labor and expenses that contributed to quick, short term profitability. Id. at 160; 6/24/14 PM Tr. at 103.
Finally, and - more significantly, Dr. Udinsky opined that as CEO of REI, the plaintiff had hired GAI, which was the consultant facilitating kickbacks to a member of the USPS’s BOG to obtain a contract for REI. 7/16/2014 PM Tr. at 153-56. This association between REI and both the .corrupt consultants and the corrupt public official negatively impacted REl’s stock price, which declined in 1987,
Moreover; Dr. Udinsky opined that even if the indictment had not occurred, REI’s growth would not have continued because REI’s technology was not superior to that of its competitors. 7/16/14 AM Tr. at 163-64. After a test between REI’s MLOCRs and those of a competitor, the USPS determined that the competitor offered superior equipment and awarded its contract to the competitor. Id. at 162-63. Following a lawsuit, a Federal District Court in Delaware, upon review of “all the evidence extensively ... wrote a fairly long opinion, and in that opinion determined that, in fact, the REI machine had significant problems” and the USPS was justified in awarding the contract to the competitor. Id. at 163 (referring to Mem. Op., Unisys Corporation vs. United States Postal Service, No. 89-331(LON) (D.Del. Aug. 14, 1989)).
IV. CONCLUSIONS OF LAW ON PLAINTIFF’S FTCA CLAIM
The only count of the plaintiffs original FTCA complaint against the government that remains for disposition alleges that the actions of the Postal Inspectors, “acting within the scope of their employment as employees of defendant United States of America, constituted malicious prosecution in violation of the laws.” FTCA Compl. ¶ 36. The parties’ lengthy submissions of proposed Findings of Fact and Conclusions of Law have been considered, along with the testimony and exhibits admitted at trial, to reach the conclusions of law set out below.
To establish the tort of malicious prosecution, under local District of Columbia law, the plaintiff must prove the following four elements: “(1) the defendant’s initiation or procurement of a criminal proceeding against the plaintiff; (2) absence of probable cause for the proceeding; (3) malicious intent on the part of the defendant; and (4) termination of the proceeding in favor of the plaintiff.”
Moore II,
The plaintiff must prove each of the remaining three elements, however, to succeed on his FTCA malicious prosecution claim. Indeed, failure to prevail on any of these elements requires judgment in favor of the defendant. The plaintiff has failed to prove all three remaining elements, each of which is addressed seriatum below.
A. Postal Inspectors Did Not Procure Indictment Against Plaintiff
To prove a malicious prosecution claim the plaintiff must show that the defendants initiated or procured the criminal proceeding against him.
See Moore II,
The plaintiff posits the following theory of procurement: “the Postal Inspectors’releasing of grand jury testimony to Spartin ... caused Spartin to incriminate him ... [and] led to [Moore’s] indictment and .then his prosecution.”
Moore II,
To satisfy the first element of his FTCA malicious prosecution claim and support his theory that the defendant Postal Inspectors’ unauthorized disclosure of grand jury testimony to Mr. Spartin procured the
1. Postal Inspectors Did Not Violate Rule 6(e)
Federal Rule of Criminal Procedure 6(e)(2), titled “Secrecy,” provides, in pertinent part, that “[u]nless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury ... (vii) a person to whom disclosure is made under Rule 6(e)(3)(A),” which paragraph, in turn, describes “any government personnel ... that an attorney for the government considers necessary to assist in performing that attorney’s duty to enforce federal criminal law.” Fed. R. Cbim. P. 6(e)(2) and (3)(A).' Safeguarding grand jury secrecy serves multiple interests, including (1) encouraging prospective witnesses to come forward voluntarily and to testify fully and frankly, which would be less likely “if preindictment proceedings were made public” and witnesses were subjected “to retribution as well as to inducements;” (2) decreasing the risk that “those about to be indicted would flee, or would try to influence individual grand jurors to vote against indictment;” and (3) “assuring] that persons who are accused but exonerated by the-grand jury will not be held up to public ridicule.”
Butterworth v. Smith,
To effectuate the purposes of protecting the secrecy of grand jury proceedings, Rule 6(e) extends secrecy beyond the transcribed proceedings actually occurring before -the grand jury to cover “any hear
At the same time, “a veil of secrecy” is not “drawn over all matters occurring in the world that happen ,to be investigated by a grand jury.”
Dresser Indus., Inc.,
In evaluating whether a violation of grand jury secrecy occurred in this case, the Court first summarizes the pertinent facts before discussing the legal factors relevant to resolving this critical dispute, on which the plaintiff must prevail in order to sustain his FTCA claim.
a. The Pertinent Facts
Briefly, the plaintiff asserts that the disclosure by government agents to William Spartin of four interview summaries, which, were prepared for the purpose of presentation to the grand jury and adopted as the bulk of the testimony of four witnesses before the grand jury, constitutes an unauthorized disclosure of grand jury material and a violation of Rule 6(e). The government vehemently disputes that the interview summaries constitute grand jury material subject to Rule 6(e),. notwithstanding that the same interview summaries disclosed, in full or redacted form, to Mr. Spartin had been, previously presented as witness testimony to the .grand jury. The key facts underlying this dispute are generally undisputed, as described below.
i. Disclosure of Interview Summaries . to William Spartin
On April 8, 1986, Mr. Spartin, the president of GAI, entered into a non-prosecution agreement requiring him to cooperate and provide truthful information to avoid prosecution for any crimes he may have committed. PL’s Ex. 269 at 4-5 (Tr. Spar-tin G.J. testimony). In thé sixteen months between the time he agreed to cooperate and the time he testified before the grand jury on September 1, 1987, Mr. Spartin met with the Postal Inspectors on over 20 occasions, id. at 5', and provided them with information related to his two GAI colleagues, who pleaded guilty to paying illegal monies to Vice Chairman Voss, and his interactions with the plaintiff and others at REI. The information relayed- by Mr. Spartin in these interviews was ultimately compiled into a 28-page interview summary presented to the grand jury. Id. at 9. '
Approximately six months after his cooperation began, AUSA Valder invited Mr. Spartin and his counsel to a meeting at the
As planned, ,at this meeting, AUSA Valder confronted Mr. Spartin and explained that the government was skeptical that Mr. Spartin was providing complete and truthful testimony regarding his involvement .in the conspiracy. Id. at 382 (“it was .our view Spartin wasn’t telling the truth ... and we were considering revoking his plea.agreement”); 7/16/14 PM Tr. at 49 (Valder testimony). AUSA Valder demonstrated the depth of concern over Mr. Spartin’s level of cooperation by dramatically tearing up a copy of Mr. Spar-tin’s non-prosecution agreement. Valder Dep. at 305, 382, Mar. 1, 2000. Mr. Spar-tin was permitted time to consult privately with his counsel, after which his counsel spoke to AUSA Valder and advised that Mr. Spartin truly had difficulty recalling events. 7/16/14 PM Tr. at 64 (Valder testimony). 53
In order to facilitate Mr. Spartin’s recollection of events, AUSA Valder consulted with his supervisors about whether he could share with Mr. Spartin summaries of interview of other witnesses.' Valder Dep. at 383-84, Mar. 1, 2000 (noting “consultation with my supervisors ... that we didn’t want to be showing Spartin anything that he had not already been involved in arid should have had awareness of); 7/16/14 PM Tr. at 67 (Valder testimony). With the approval of his supervisors, AUSA Valder then directed the Postal Inspectors to gather certain interview summaries for his review and, in accordance with these instructions, Postal Inspectors Hartman and Kormann brought to AUSA Valder the interview summaries of four grand jury witnesses, Messrs. Gnau, Marcus and Voss, and Ms. Peterson, as well as a document transcribing a conversation with another individual. 54 Valder Dep. at 376-77, Mar. 1, 2000; 7/14/14 PM Tr. at 116-17 (Hartman testimony).
AUSA Valder testified that he reviewed the four interview summariés with “the scissors in my hand” and he cut out those sections that’ did not reflect Mr. Spartin’s “contact with this topic or this event.” During this review and redaction process,
After this review and redaction process, the interview summaries were provided to Mr. Spartin and his counsel to review at the USAO “for four or five hours” in early November, 1986, in order to refresh Mr. Spartin’s recollection. Valder Dep. at 306, Mar. 1, 2000 (“There was one day when for four or five hours I allowed him to read segments of other people’s summaries for the purpose of refreshing his recollection, because he was badly unable to recall historical events”); id. at 383 (“my diaries will show you the dates ... before November 13, ... that Mr. Gettings and Mr. Spartin came to my office and that they were — I remember they were left alone with these material and I gave them these statements”); id. at 384 (“We were trying to refresh his recollection as to what the truth was, which as I said before is permissible.”); id. at 387, 516 (purpose of showing interview summaries to Mr. Spar-tin was to refresh his recollection); see also United States v. Recognition Equipment Inc. et al., Criminal Action No. 88-0385 (“Crim. Trial Tr.”) at 2610 (Spartin testimony, dated October 23-25, 1989)(Spartin testifying: (“Q: You read these documents for about four hours, you say? A: Yes, sir.”).
At the time these four interview summaries were disclosed to Mr. Spartin and his counsel, they had been presented, in full, to the grand jury.
See
Pl.’s Ex. 538 ¶ 21-22, 24 (Stipulated Facts);
see also
Valder Dep. at 378, Mar. 1, 2000 (“I believe that- all four of them had already been adopted by their respéctive witnesses before the grand jury - ... I’m not exactly positive that Marcus and Gnau had already been before the grand jury”). AUSA Valder is clear that he, not the Postal Inspectors made the decision to disclose the four interview summaries to Mr. Spartin. Valder Dep. at 381, Mar. 1, 2000 (“The Inspectors didn’t show it to him. I showed it to him.”);
id.
at 430 (“I told you that I showed Mr. Spartin whatever it was that comprises Government Exhibit 707”).
55
At no time, however, did the Postal Inspectors or AUSA Valder inform Mr. Spartin or his counsel that the interview summaries had been presented to the grand jury. Indeed, Mr. Spartin testified under oath at the plaintiffs criminal trial that he did not know the summaries he reviewed had served as grand jury testimony.
See
Crim. Trial Tr. at 2610 (Spar-tin testimony, dated October 23-25, 1989) (“Q. Now, you knew, did you not, sir, that the' documents that you had received from the Government contained Grand Jury material; didn’t you know that?” Spartin “A. No, sir, I ’didn’t;”);
id.
at 2612 (Spartin “A. Sir, I did not know they represented Grand Jury testimony. I am not an attorney and I wasn’t sure what I was looking at. I made some assumptions. I made them entirely on my own. As far as I knew, these were statements ... I, did not
ii. Purpose, Preparation and Presentation of Interview Summaries to Grand Jury
Having established that Mr. Spartin did not know the four interview summaries for Messrs. Gnau, Marcus and Voss, and Ms. Peterson, had been presented to the grand jury, the Court pauses here to consider other factors that may have a bearing on the critical question whether these summaries constitute- grand jury material. Specifically, the circumstances under which these summaries were prepared, their purpose and their use before the grand jury are described more fully below.
•The four interview summaries at issue were originally drafted by the Postal Inspectors at the direction of AUSA Valder to compile in a single document the information provided by the witnesses over multiple interviews., AUSA Valder testified at his deposition that he proposed this method for presentation of testimony to the grand jury in order “to make an efficient presentation to the grand jury of complicated facts that I probably could not nearly as quickly, and as easily, and efficiently elicit from witnesses in the same degree of complexity, and you know, truthful information.” Valder Dep. at 320-21, Mar. 1, 2000. Generally, before each of these witnesses testified before the grand jury, he or she had the opportunity to review the interview summary with counsel and make edits to the document. Id. at 321. AUSA Valder described the process as follows: “the practice was for the Inspectors and the witness, to insure an accurate statement of what did happen, not what didn’t happen ... the witness summaries were very carefully and responsibly done to set forth the truth of what did happen. Every event, every fact that happened that was relevant and material to thé grand jury’s consideration was set forth.” Id. at 311-312. 57 ■
Comparison of the interview summaries presented to the grand jury and the summaries disclosed to Mr. Spartin and his counsel, which comprise Pl.’s Exhibit 535, reveals the following:
1.The 24-page interview summary for Michael Marcus compiles information from several interviews he had with Postal Inspectors, and reflects roughly ten handwritten edits he initialed on September 5, 1986, before he testified before the grand jury on October 23, 1986. PL’s Ex. 196 (Marcus G.J. Interview Summary); PL’s Ex. 211 (Tr. Marcus G.J. testimony). The version of this summary disclosed to Mr. Spartin contains redacted paragraphs on three pages.
2. The 19-page interview summary for Peter Voss compiles information from his interviews with the Postal Inspectors “following May 30, 1986,” and has the notation .“GJX# 4” handwritten on the top of the front , page of the document. Defs.’ Ex. 65 (Voss G.J. Interview Summary). Mr. Voss testified before the grand jury on August 28, 1986. PL’s Ex. 214 (Tr. Voss G.J. testimony); Voss Dep. 91-92, Jun. 12, 2014, ■ The version of this summary disclosed to Mr. Spartin does not appear to have • any redactions.
3. The 22-page interview summary for John Gnau compiles information from four interviews he had with Postal Inspectors, and reflects roughly ten handwritten edits he initialed. PL’s Ex. 206 (Gnau G.J. Interview Summary). This interview summary was finalized on October 9, 1986, a week before he testified before the grand jury on October 16, 1986. PL’s Ex. 210 (Tr. Gnau G.J. testimony). 'The version of thissummary disclosed to Mr. Spartin contained 18 pages, with four pages removed entirely, as well as paragraphs redacted on three pages.
4. The 12-page interview summary for Sharon Peterson, who served as Mr. Voss’ administrative assistant, compiles information from three interviews she had with the Postal Inspectors, and reflects roughly 27 handwritten edits she initialed on September 19, 1986, the same date that she testified before the grand jury. PL’s Ex. 535 (Peterson G.J. Interview Summary); PL’s Ex. 204 (Tr. Peterson G.J. testimony). The version of this summary disclosed to Mr. Spartin does not appear to have any redactions.
In sum, the interview summaries of Ms. Peterson and Mr. Voss that were disclosed to Mr. Spartin were the same summaries presented to the grand jury, while the disclosed interview summaries of Messrs. Gnau and Marcus were redacted versions of the summaries presented to the grand jury. As discussed infra, in Part III. A.l(b),- the fact that two of the interview summaries shown to Mr. Spartin were redacted and the others not, is immaterial,
b. Interview Summaries Are Not Protected By Rule 6(e)
The question raised by these facts is whether the grand jury secrecy rule is violated by disclosing to a witness summaries of interviews conducted by the Postal Inspectors of other people, when, unbeknownst to the witness to whom disclosure is made, those summaries had been presented to the grand jury? 59 The answer to this question is no. 60 The interview summaries were derived from investigatory interviews conducted independently of the grand jury and no disclosure was made of the critical information that the interview summaries were presented to or used ‘ in the grand jury. Consequently, whatever their level of involvement in the disclosure of the interview summaries to Mr. Spartin, the Postal Inspectors did not violate Rule 6(e).
In reaching this conclusion the Court is guided by the key test or “touchstone” articulated by the D.C. Circuit that Rule 6(e) prohibits the disclosure of documents that “would ‘tend to reveal some secret aspect of the grand jury’s investiga
Rather, the test for application of Rule 6(e) is met only when the documents themselves or the context in which they are described, relayed or communicated indicates that they were a focus of grand jury attention and, thereby, “reveal some secret aspect of the grand jury’s investigation.”
Lopez,
In evaluating whether disclosure of a particular document reveals the inner workings of the grand jury, at least in the context of a party seeking disclosure under the Freedom of Information Act (“FOIA”), the D.C. Circuit has instructed that the government “bears the burden of demonstrating some nexus between disclosure and revelation of a protected aspect of the grand jury’s investigation.”
CREW,
Then-Judge Ginsburg’s decision in
SoCPR
is illustrative of this point. In that case, the Senate of Puerto Rico made a
Likewise, in
Lopez,
the Court noted the distinct yoles of prosecutors, who may interview witnesses “either as part of a ‘screening’ process in advance of actual grand jury testimony, or as part of the prosecution’s own investigation.”
The evidence at trial in this case shows that each of the four interview summaries shown to Mr. Spartin were — as each appeared to be — a compilation of information relayed by the witness over the course of two or more interviews conducted by the Postal Inspectors. Such interviews are a quintessential investigatory activity that “does not on its face convey any information about ‘some secret aspect of the grand jury’s investigation.’ ”
Lopez,
Accordingly, the Court finds that disclosure of the interview summaries to Mr. Spartin and his. counsel did not violate Rule 6(e). ■ , -
2. Mr. Spartin’s Testimony Did Not Cause Indictment of Plaintiff
Even if the four interview summaries constituted grand jury material and, further, even if the Postal Inspectors limited involvement in helping AUSA Valder review and prepare those summaries were sufficient to establish liability for violating Rule 6(e), the plaintiff would still-have to show that, but for Mr. Spartin’s grand jury testimony, the plaintiff would not have been indicted and prosecuted.
See Moore II,
3. Interview Summaries Did Not Cause Mr. Spartin to Implicate Plaintiff
At the outset, as even the plaintiff must .concede, the four interview summaries were not the only source of Mr. Spar-tin’s knowledge about the conduct of the plaintiff and his codefendants that contributed to the illegal scheme. Mr. Spartin was not only deeply involved in the conspiracy, but he was also the co-conspirator credited with having the most regular personal contact with the plaintiff.
See
Pl.’s Ex. 269 at 29 (Tr. Spartin G.J. testimony, indicating that Spartin had. a better rapport with the plaintiff than Mr. Gnau, who
As support for his argument that the four interview summaries caused Mr. Spartin to impute knowledge of the conspiracy to the plaintiff, the plaintiff explains “the details that Spartin provided to the grand jury as support for his opinion concerning Moore’s knowledge are the same facts — about events at which Spartin was not present — that were outlined in the grand jury statements previously shown to him.” PL’s COLs at 41. Mr. Spartin’s grand jury testimony makes abundantly clear, however, that this assertion is not correct. On the contrary, Mr. Spartin stated that his opinion was based on events where he, too, was present, including his direct and multiple conversations over time with both Mr. Reedy and the plaintiff, both of whom made explicit requests for- certain USPS -procurement steps and on an expedited basis. PL’s Ex. 269 at 11-12 (Tr. Spartin G.J. testimony).
For example, in setting forth the basis for his opinion, Mr. Spartin noted, first, that Vice Chairman Voss was pushing REI’s interests, stating that “during the course of the GAI/REl relationship Moore and Reedy were aware that Voss was helping on the inside to obtain a sole source contract award for REI.” PL’s Ex. 137 at 14 (Spartin ' G.J. Interview Summary). Based upon his “many conversations between Mr. Reedy and myself and the many conversations between Reedy and Mr. Gnau, and my conversations with Gnau and Voss,” he “felt that Mr. Reedy knew that we were somehow taking care of Mr. Voss, because I rationalize that why would Mr. Voss be so adamant to help us and all the things he was doing, which we relayed back to Mr. Reedy, just led me to believe that they had to come to the conclusion that somehow we were doing something to take care of Mr. Voss.” PL’s Ex. 269 at 11 (Tr. Spartin G.J. testimony).
Second, Mr. Spartin described occasions when Mr. Reedy and the plaintiff would make requests to GAI for Vice Chairman Voss to take certain actions, implicitly acknowledging the ongoing communications channel between GAI and Vice Chairman Voss, and demand status reports on timing. Mr. Spartin explained that Mr. Reedy would say “Why don’t you get Peter Voss to do this, or why don’t you get Peter Voss to do that” and Mr. Reedy and the plaintiff “felt all along, that we were controlling Voss and they let their wishes ... be known to both John and myself in terms of what they wanted us to do, and they wanted the whole thing expedited, they wanted the .competitive tests stopped. They just felt that we should do that.”
Id.
Third, Mr. Spartin also testified about the plaintiffs specific queries about GAI’s connections to Vice Chairman Voss, including questions from the plaintiff to Mr. Spartin about “how well he (Spartin) and Gnau knew Voss,” to which Mr. Spartin responded by “reassure[ing] Moore that he and Gnau were well connected with Peter Voss.” Pl.’s Ex. 137 at 9 (Spartin G.J. Interview Summary). In fact, Mr. Spartin told both the plaintiff and Mr. Reedy “several times about his ability to influence Peter Voss and Voss’s subsequent actions on behalf of REI.” Id. at 24-25 (Spartin G.J. Interview Summary).
These interactions with the plaintiff and his co-defendants were experienced firsthand by William Spartin and served as the basis for his opinion expressed to the grand jury. The four witness summaries certainly provided Mr. Spartin' with a broader view of the interactions of the plaintiff and the plaintiffs co-defendants with Mr. Spartin’s co-conspirators, but that fact does not diminish Mr. Spartin’s own dealings with the plaintiff that led him “to the conclusion that, in my opinion, that they had to know way down deep if they asked themselves or looked at the issue, that we were — GAI was handling Mr. Voss.” Pl.’s Ex. 269 at 11 (Tr. Spartin G.J. testimony).
That being said, the conclusion that disclosure of the four interview summaries, in whole or redacted form, to William Spartin did not violate Federal Rule, of Evidence 6(e) and did not cause him to have or express his “opinion” regarding the plaintiffs knowledge of the conspiracy should not be misconstrued as this Court sanctioning this method of refreshing the recollection of a grand jury witness. Such wholesale disclosure to a witness of the testimony of co-conspirators involved in the criminal activity that is the subject of the grand jury investigation- presents a grave risk of coloring, influencing and molding the witness’ testimony to conform to that of the other witnesses', just, as the plaintiff contends. PL’s COLs at 38 (arguing that the interview summary statements “had the intended effect of tainting and shaping Spartin’s view of the facts”). Such concern, combined with Mr. Spartin’s comment during his polygraph examination that “[w]hat colors a lot of.this is that I read the testimony of those guys and. I was appalled when I read it, because it bothers me now,” PL’s Ex. 226 at 14 (Spar-tin Polygraph Tr.), is troubling, even if not sufficient to supplant the personal observations and experiences cited by Spartin as the foundation for this expressed opinion.
In any event, even if the four interview summaries colored Mr. Spartin’s view, it does not necessarily follow that it caused Mr. Spartin to have the opinion he expressed given the strong foundation of his own personal experiences on- which he based that view.
4. ■ Mr, Spartin’s Opinion Did Not Procure Indictment
Assuming,
arguendo,
that providing Mr. Spartin with four co-conspirators’ interview summaries caused-him to form and express the opinion that the plaintiff must have had knowledge of the illegal payoffs to Vice Chairman Voss, the plaintiffs theo
Since Mr. Spartin presented evidence to the grand jury, his testimony may very well have contributed 'to the finding of probable cause for the return of the indictment. Yet, mere contribution is not the standard. The D.C. Circuit’s instruction that “if Moore would have been indicted and 'prosecuted anyway, even without the postal inspectors’ alleged misconduct and Spartin’s testimony, ■ then the United States cannot be held liable.”
Móore II,
Mr. Spartin’s opinion was obviously offered as just that: his opinion. He never testified that he told anyone at REI about the payoffs made to Vice Chairman Voss, that he actually paid any of REI’s money to Vice Chairman Voss, or that the specific topic of such payoffs ever came up with anyone at REI. Thus, his testimony was, similarly to the other co-conspirators, circumstantial regarding the extent of- the knowledge that the plaintiff and his co-defendants had — or should have had — regarding the illegal payoff scheme. In this respect, Mr. Spartin’s testimony was corroborative and cumulative of that of the other co-conspirators rather than the linchpin on which the indictment rested.
The plaintiffs argument that Mr. Spar-tin’s opinion that the plaintiff must have known of the illegal bribery and kickback scheme was the raison d’etre for the grand jury to return the indictment, dovetails with his argument that probable cause for the indictment was lacking. As discussed next, he is wrong on that score as well.
B. Plaintiff Failed to Prove Absence of Probable Cause
In a malicious prosecution case, “[l]ack of probable cause is an essential element ... and a showing of probable cause is thus a valid defense- which warrants a directed verdict for the defendants.”
Ammerman v. Newman,
“In a civil action for malicious prosecution, probable cause is defined as the existence of ‘facts and circumstances as will warrant a cautious man in the belief that his action and the- means taken hi prosecuting it are legally just and proper.’ ”
Pitt,
In evaluating the presence or lack of probable cause, the court may consider a grand jury indictment as
prima facie
evidence of probable cause.
Moore IV,
As discussed below, the plaintiff has failed to rebut the presumption of probable cause presented by the indictment and, in any event, the investigating federal law enforcement agents' and the federal prosecutors had ample evidence supporting probable cause to believe that the plaintiff had committed the crimes for which he was indicted. Consequently, the plaintiff has failed to meet the no-probable cause requirement for his malicious prosecution FTCA claim against the government.
1. Plaintiff Has Not Rebutted Indictment’s Presumption of Probable Cause
The plaintiff had four weeks to present all.of the evidence gathered over the last, two decades to make his case that' the presumption created by the indictment should yield to condemning evidence that the Postal Inspectors engaged in “fraud, corruption, -perjury, fabricated evidence,-or other wrongful conduct undertaken in bad faith,”
Moore IV,
The plaintiff maintains that, to bolster their weak case against the plaintiff, the Postal Inspectors resorted to “prohibited, improper,' or inappropriate” tactics to “procure an indictment where one was not warranted.” PL’s COL at 14. The litany of such tactics cited by the plaintiff include: (1) “repeatedly interviewing the witnesses on matters already covered,” id. at 11; (2) “shading the evidence presented to the grand jury,” id. at 11, first, by withholding “exculpatory information from the grand jury,” id. at 12, about “the key fact that each co-conspirator had denied telling Moore about the existence of the conspiracy,” id. at 13, and, second, “improperly sharing] with Spartin his co-conspirators’' scripted witness statements, in order to elicit” Spartin’s “ ‘opinion’... that Moore knew that Voss was receiving money from Gnau,” id. at 13; and (3) “bullying and intimidating” various witnesses, by “yell[ing] at Frank Bray and William Spar-tin, whose plea agreement was also torn up by AUSA Valder “for the shock effect,” id. at 11.
Despite the plaintiffs criticisms of the investigative “tactics” employed during the course of the investigation by either or both the Postal Inspectors and AUSA Valder, none of these actions, considered individually or in combination, are so egregious as to undermine the validity of the indictment due to the grand jury’s reliance on tainted, unreliable or incorrect evidence.. .For example, the first “tactic” criticized by the plaintiff of re-interviewing witnesses multiple times, is frequently necessary when investigating a complex conspiracy, particularly of lengthy duration among multiple individuals, each of whom may have varying roles and levels of knowledge about different events. Rather than being somehow coercive, as the plaintiff iniplies, diligent 'reinterviewing of witnesses as additional factual information comes to light is a diligent investigative practice to test the memories and veracity of the witnesses.
The plaintiffs next criticism — that the Postal Inspectors withheld information from the witnesses’ statements, and thereby from the grand jury, about the co-conspirators admitting they did not directly communicate to the plaintiff that REI’s fees paid to GAI were used to make payoffs to Vice Chairman Voss — has been a continuous chorus throughout this litigation,- but repetition does not make it any more persuasive for at least three reasons. First, this criticism falls short of claiming that incorrect or perjured' testimony was elicited and presented to the grand jury. On the contrary, each of the co-conspirators testified under oath that his or her interview summary was true and correct.
See e.g.,
PL’s Ex. 210 at 8-9 (Tr. Gnau G.J. testimony); PL’s Ex. 211 at 9 (Tr. Marcus G.J. testimony); PL’s Ex. 214 at 9 (Voss Grand Jury testimony); PL’s Ex. 269 at 10
Second, no legal requirement obliges prosecutors to inсlude exculpatory information in presentations to the grand jury.
United States v. Williams,
Finally, the fact that .none of the co-conspirators testified about not making a direct disclosure to the plaintiff about the illegal arrangement with Vice Chairman Voss was not hidden by the government but was obvious from the interview summaries and grand jury testimony of those witnesses. Moreover, AUSA Valder testified that the grand jury was advised multiple times that the case against the plaintiff and his co-defendants was circumstantial. 7/16/14 PM Tr. at 85-86 (Valder testimony). In the plaintiffs view, however, AUSA Valder and the Postal Inspectors had to do more to highlight the circumstantial nature of the case by including in the interview summaries more specific information that no direct communication of the payoff scheme was made to the plaintiff. This assertion is predicated on the faulty premise that “the only way Moore could have obtained actual knowledge of the conspiracy — a prerequisite to agreeing to participate in the conspiracy — would be if he learned of the scheme from someone with knowledge of the kickback payments from GAI to Voss and the reasons for those payments.” PL’s COL at 7;
id.
(stressing that there is no explanation “for how Moore could have learned of the secret payoffs other than from the conspirators themselves”). The plaintiff ignores the uncomfortable fact for him that another way in which the plaintiff could have gained knowledge of the illegal scheme, even without a direct communication, was by recognizing red flags of “suspicious circumstances.” Vice Chairman Voss was certainly conducting himself in such a blatantly unethical manner favorable to REI that observers within the USPS were made highly suspicious about his personal motivations, but the plaintiff contends that he missed all. .of these queues. As the Supreme Court has said, “direct evidence of a fact is not required. Circumstantial evidence is not only sufficient, but may also be more certain, satisfying and persuasive than direct evidence.”
Michalic v.
Multiple red flags were obviously waving in this case, starting with the plaintiff agreeing to' hire GAI on the promise that a USPS contract would be forthcoming in only a short 120 days, and then agreeing to pay this small, Detroit-based firm, $22,000 per month for consulting and public relations services, which were .neither clearly defined nor used, due largely to GAPs close connection to Vice Chairman Voss, the same BOG member engaging in vigorous efforts to steer a sole-source contract .worth hundreds of millions of dollars to REI. The plaintiff plainly or deliberately ignored these red flags.
See Global-Tech Appliances, Inc. v. SEB S.A.,
The issue of the plaintiffs willful blindness and concomitant criminal culpability is not before this Court, but is- relevant in reviewing the merits of the plaintiffs position that he has rebutted the presumption of probable cause by showing the indictment was essentially invalid due to lack of evidence of a'direct communication to the plaintiff about the illegal • scheme. The Court rejects the plaintiffs position and credits' the grand jury with the common sense to notice both (1) the obvious lack of such testimony from any -grand jury witness, and (2) the red flags apparently ignored by the plaintiff, to base its return of the indictment on circumstantial evidence. For the same reason, no matter how legitimate the plaintiffs concerns are about the manner in- which “co-conspirators’ scripted witness statements” were used to refresh the recollection of William Spartin, the opinion expressed by Mr. Spartin before the grand jury, was elearly described as his opinion, and merely helped to summarize some of the same red flags already before the grand jury and available for them to evaluate in making their probable cause determination.
The plaintiffs third complaint is that the Postal Inspectors used intimidating techniques, such as yelling and threats in their treatment of the Frank Bray, William Spartin and Peter Voss. The Postal Inspectors credibly denied this accusation about their own treatment of these witnesses. '7/11/14 AM Tr. at 6, 51 (Hartman testimony); 7/15/14 AM Tr. at 60 (Kormann testimony). Furthermore, whatever intimidation was used, ■ for example, on Frank Bray, did not stop him from lying to the Postal Inspectors or presenting generally exculpatory testimony to the Grand Jury. None of these witnesses testified before the grand jury that the plaintiff or his codefendants were told directly about the illegal scheme, thus making clear that any intimidation by government agents did not result in eliciting such testimony.
In sum, the plaintiffs myriad criticisms of the investigative ‘ techniques used to present testimonial evidence before the grand jury 'fall far short of undermining the validity of the indictment and rebutting the presumption of probable cause presented by the indictment. The indictment may, therefore, be considered not just as prima facie evidence- of probable cause but as dispositive on this point.
The analysis of the plaintiffs FTCA claim could stop with the finding that the indictment reflects a valid finding of probable cause by the" grand jury since that finding alone warrants entry of judgment in the government’s favor.. Even if the plaintiff were able to rebut the presumption of probable cause created by the indictment, however, the evidence presented at trial demonstrated ample probable cause for the grand jury’s action in returning the indictment.
At the outset, the plaintiff proffers that “[t]he most powerful evidence showing an absence of probable cause is the plethora of direct evidence from the actual conspirators that [the plaintiff] had no actual knowledge and did not participate in the Voss-Gnau scheme.” PL’s COLs at 7.
65
rpjjjg proffer goffers from two significant flaws: first, direct evidence is not necessary to show probable cause since “[t]he law makes no distinction between the weight or value to be given to either direct or circumstantial evidence.”
Desert Palace, Inc. v. Costa,
Furthermore, brief examination of certain key evidence gathered during the investigation makes abundantly. clear that the indictment of the plaintiff was fully supported by probable cause. As an initial matter, the investigation began in the summer of 1985 because of Vice Chairman Voss’ unusual involvement in applying pressure to USPS management to award a sole source contract to REI. This conduct sparked suspicion about REI’s participation in the illegal scheme that was compounded and corroborated by: (1) REI’s retention of GAI, at the recommendation and urging of Vice Ghairman Voss,
see supra
Part III B.7.; (2) the payment to GAI of a monthly retainer that was over four times the amount paid to REI’s other, better established, Washington D.C.-based consulting firm, which was already purportedly performing the same services,
see supra
Part III B.10.; (3) the lies told to the Postal Inspectors, on November 20, 1985, by the plaintiff and his subordinates about not meeting one-on-one with BOG members, even though, with the plaintiffs knowledge, Mr. Reedy had met privately for dinner with Vice Chairman Voss on September 3, 1984, and telephone records showed contacts between the plaintiff and Vice Chairman Voss beginning in .July, 1984 and the ensuing months,
see supra
The totality of this evidence supported probable cause to indict the plaintiff. 66 Therefore, the plaintiff has failed to establish an absence of probable cause for his indictment and his inability to do so is fatal to his FTGA claim.
C. Postal. Inspectors Did Not Act With Malice
Finally, to prevail on his FTCA claim for malicious prosecution, the plaintiff must also show that the Postal Inspectors pursued the criminal investigation and secured an indictment against him out of malice rather than because they believed the plaintiff engaged in a criminal conspiracy' to defraud the United States. In this context, “malice” means “‘a primary purpose ... other than that of bringing an offender to justice.’”
Amobi v. D.C. Dept of Corr,
The plaintiff posits that “evidence of malice abounds,” PL’s COLs at 21, and the energy'and resources he has committed to this litigation over the past twenty-five years is testament to the tenacity of this position. Yet, the totality of the evidence gathered over the three-year, evolving investigation into the illegal bribery and kickback scheme — which led to criminal convictions of Vice Chairman Voss, John Gnau and Michael Marcus as well as nonprosecution/cooperation agreements with others and, ultimately, to the indictment of the plaintiff and his co-defendants indictment — considered as a whole, simply does not support the plaintiffs allegation that he was maliciously targeted for criminal prosecution by the Postal Inspection Service because of his outspoken criticism ofUSPS.
As support for his position “that the Postal Inspectors acted with malice,” the plaintiff relies on the purported absence of probable cause, which he contends “gives rise to an inference of malice.” PL’s COLs at 22-23. This reliance is misplaced. While “malice may be presumed from the lack of probable cause if not inconsistent with other facts in the case,
Chapman v. Anderson,
Moreover, even if the plaintiff were able to establish the lack of probable cause,' a finding of malice would be “inconsistent with other facts in the case.”
See Chapman,
■ Indeed, the two Postal -Inspectors most involved in working with the DC USAO on the indictment of the plaintiff and his co-defendants, made clear their belief in the plaintiffs guilt. Postal Inspector Hartman testified credibly that when he “recommended that [the plaintiff, REI and Mr. Reedy] be charged, that [he] believed they were guilty and should be charged for what they did.” 7/7/14 AM Tr. at 103. Likewise, Postal Inspector Kormann testified credibly about his belief that the plaintiff was guilty based upon the evidence uncovered during the investigation. 7/1/14 AM Tr. at 33. Postal Inspector Kormann stated:
The issue came to be not what his position was but what actions did he take to ensure that his goal would, in fact, be achieved; namely, a sole source award to his company. And our investigation disclosed that he took several steps that led me to believe, and led the investigation to believe, that he did join the conspiracy that was formed by Gnau and Voss and Marcus and Spartin, and that, as our investigation proceeded and the conspiracy began to unravel, he took steps to minimize the knowledge that we believed he had and that the investigation showed that he had.
Id. 67 The Postal Inspectors’ belief in the plaintiffs guilt, a belief that persists to this day and that the plaintiff himself recognizes, goes a long way to defeat the plaintiffs long-standing accusation in this lawsuit that these government agents pursued criminal charges against the plaintiff due instead to some malicious or improper motive.
Nevertheless, the plaintiff cobbles together a slew of disparate incidents in an effort to show a malicious purpose “to punish Moore for his constitutionally protected conduct,” PL’s COL at 28, despite his own testimony attributing a
proper
motive to the Postal Inspectors. The plaintiffs over-arching theory is that the Postal Inspectors “viewed Moore’s constitutionally protected efforts to use political pressure to win a contract and (allegedly) effect personnel change within the Postal Service to be a basis for the criminal charges against him.”
Id.
at 23.
68
As principle support for this theory, the рlaintiff cites: (1) “animosity” or “hard feelings” from USPS management based upon brief comments to the plaintiff scattered over several years from PMG William Bolger and his successor, PMG Paul Carlin, William Chapp, Assistant PMG for Engineering, and James Jellison, Senior Assistant PMG for Operation; (2) the launching of the criminal investigation into REI and the plaintiff before uncovering the illegal payoff scheme; and (3) certain memoranda prepared by the Postal Inspectors over the three-year course of the investigation.
69
1. Alleged USPS Animosity Towards REI and Plaintiff
First, no matter how stung the plaintiff may have' been by comments made to him by various USPS senior managers, this does not translate into a scheme — so broad-based that it reached from two successive Postmasters General down through the ranks to line-Postal Inspectors — to activate a three-year criminal investigation culminating in the plaintiffs indictment. As summarized by. the plaintiff, these comments consisted of various USPS officials, telling him to “‘back off from his congressional lobbying efforts and media campaign” and to “get media and congressmen off [their] backs,” and James Jellison “rebuffing] Moore’s overtures to discuss REI’s multi-line machine.” Pl.’s COLs at 23. 70 The plaintiff attributes the
l
As already pointed out, supra Part III. A.4., one flaw in the plaintiffs theory that he was indicted out of malice for his outspoken criticism of USPS’ automation program decisions was that friction between USPS and REI pre-dated the plaintiffs First Amendment protected activities as REI’s CEO. At the same time, another obvious flaw is that attributing malice to USPS management (which animosity the plaintiff theorizes spilled over to the Postal Inspectors), is difficult, if not impossible, to reconcile with USPS’ actual conduct towards REI and its representatives. The USPS invested substantial R & D funds, amounting to over $60,000,000, in REI’s MLOCR technology. 6/24/2014 AM Tr.' at 104 (Plaintiff testimony); 7/8/14 AM Tr. at 39 (Carlin testifying that “REI had been paid something between $40 and $60 million to develop some machines and the result of that were the five prototypes that had been sent out to, one to each of the five regions”); 7/1/14 PM Trial Tr. at 3 (Jellison Dep. testimony). Moreover, USPS management remained interested in REI’s progress with this technology and visited REI’s headquarters to discuss the company’s products. 7/1/14 PM Trial Tr. at 60 (Jellison Dep. testimony: “In fact, we spent a considerable amount of money in Dallas trying to develop a database in Dallas for the REI machines. If they had had a national database, that would have been a perfect time to tell us about it, and they didn’t tell us about it.”); see id. at 67-68 (Jelllison Dep. testimony: “I don’t remember the management prior to Bill Moore very well, but we dealt with REI, E-Systems and those people all the time ... And, of course, we did plant visits at all the different contractors’ plants.”); id. at 71 (recalling visit of BOG at “both REI and ECA”), The USPS also deployed five of REI’s MLOCR machines in USPS offices around the country as a pilot project to test their performance. Indeed, after he had been on the job only a few months, PMG Carlin visited one of the sites to inspect REI’s MLOCR equipment, at Vice Chairman Voss’ recommendation and insistence. 7/8/14 AM Trial Tr. at 44 (Carlin testimony). The' plaintiff concedes that PMG Bolger made time to meet with him and even recommended to him a consultant to improve the presentations that REI was making to the USPS. PMG Carlin also made time to meet with REI’s representatives, John Gnau and Michael Marcus, who had been hired as REI’s consultants. Finally, REI was, along with AEG, one of the two companies participating in the next phases of the USPS automation . program to retrofit existing SLOCR machines. See supra Part III. A.2. and B.l. This actual investment of millions of dollars of funding, actual meetings, actual site visits by USPS officials to monitor the progress of REI’s development of MLOCR equipment and selection to participate in phases of the automation program appear to reflect genuine interest, rather than such deep-seated malice as to trigger a criminal investigation and indictment, as the plaintiff has argued.
The' plaintiff discounts these actual efforts by USPS to support REI’s develop
In any event, any views about the shortcomings of REI’s equipment or feelings of animosity among senior USPS officials are only relevant to the plaintiffs case if he is able to show that these views or feelings were shared by the defendant Postal Inspectors and spurred them to initiate and pursue their investigation of, and recommendation to indict, the plaintiff. The plaintiff acknowledges that the defendant Postal Inspectors flatly deny that any animosity by USPS senior management had any influence on their motivations to investigate and recommend indicting the plaintiff (and his co-defendants). Pl.’s COL at 23.
72
The plaintiff contends, however, that the defendant Postal Inspectors dissem
2. Initiation of Investigation of REI and Plaintiff Was Warranted
The plaintiff argues thаt “[l]ong before they had any evidence of the Voss-Gnau payoff scheme, the Postal Inspectors wanted to put Moore, REI, and their congressional supporters under an investigatory microscope, looking for anything to charge them with, from campaign contributions to. frivolous antitrust allegations.” Pl.’s COLs át 24. The plaintiff has repeated this argument throughout this litigation.
See, e.g., Hartman,
Indeed, as to the second predicate, suspicions about Vice Chairman Voss and other BOG members’ activities in pushing a sole source MLOCR procurement contract to REI had been building for some months, resulting in PMG Carlin and CPI Clauson committing a Postal Inspector to monitor the procurement process, and CPI Clauson opening- a formal investigation of Vice Chairman Voss and other BOG members in the summer of 1985, several months before the Postal Inspectors met with AEG officials and DOJ attorneys concerning REI. Contrary to the plaintiffs argument, the initial investigation focused not oñ REI or the plaintiff (let alone his First Amendment-protected activities) but on Vice Chairman Voss, whose blatant efforts to push REI’s interests and pressure BOG members to award REI a sole source USPS contract, heightened suspicions about corrupt dealings. See supra Part III A.3, B.l. ,
Within a few months of beginning the investigation of Vice Chan-man Voss, the Postal Inspectors also received a report in early November, 1985 that, instead of the competition envisioned by the ongoing phases of the procurement process, REI had boldly threatened AEG, REI’s com
The plaintiff characterizes the Postal Inspectors’ concern about the plaintiffs proposed “deal” to thwart the competitive process and to split the contract as amounting to “frivolous antitrust allegations.” Pl.’s COL at 24. Evaluating whether the plaintiffs proposal was “frivolous” under antitrust law, was one of the reasons for the Postal Inspectors’ meeting with two supervising DOJ attorneys. See 7/7/14 AM Tr. at 19-20, 67-68 (Hartman testimony). As reflected in the memorandum, dated November 8, 1985, from Postal Inspectors Edwards and Hartman to their supervisor, CPI Clauson, summarizing the DOJ meeting, the DOJ attorneys “advised us to continue our inquiry.” PL’s Ex. 101 (Nov. 8,1985 Memo.); see also 7/10/14 AM Tr. at 43^5 (Jarrett Testimony). The DOJ attorneys recommended, inter alia, that the inspectors “investigat[e] vendor’s (REI) intention and capability of actually competing on Phase II conversion” and “review and analyze documents, meetings, testimony, transcripts* etc. to detect and establish a pattern of irregular, possibly unethical, behavior, and possible perjury regarding Executive Order 11222.” PL’s Ex. 101 at l. 73 In accordance with these recommendations from two supervisory level DOJ attorneys, the Postal Inspectors outlined for their supervisors their: next investigatory steps, including “create a complete subject file, i.e., Congressional testimony, REI correspondence, etc.” PL’s Ex. 101 at 2. Far from targeting REI due to the plaintiffs First Amendment protected activities, “Congressional testimony” by REI representatives could-inform the investigators about REI’s intentions and capabilities, per the DOJ attorneys’ recommendations on avenues for further investigation into whether criminal wrongdoing was occurring.
3. Subpoenas Issued to REI
The plaintiff cites as evidence of malice that two of the multiple grand jury subpoenas issued to REÍ, in July 1986 and February 1987, respectively, demanded certain records “with no apparent regard for the First ‘Amendment protection.” PL’s COL at
24.
The plaintiff successfully made this argument several times before the D.C. Circuit, which described these subpoenas as “targeting expressive activity” and .noted their .significance as “evidence of retaliatory motive” that “comes close to the proverbial smoking gun.”
Moore V,
The July 24, 1986 subpoena specifically, requested records relating to REI’s use of PAC funds, including as the plaintiff decries, records relating to “ ‘[a] summary of all contributions to candidates and or holders of public office,’ ‘authorization for individual PAC disbursements,’ and ‘disbursement of PAC funds to include the contributors’ and payees’ name.’” PL’s COL at 24; PL’s Ex. 183 at SMFC3 09159 (G.J. Subpoena, dated July 24,1986). The topics reflected in the July 1986 subpoena were intended by the Postal Inspectors to identify whether and to whom REI may have made corrupt payments in order to obtain USPS business, including to legislators. 7/11/14 AM Tr. at 66 (Hartman testifying that July 1986 Subpoena issued as “[w]e were trying to gather as much information as possible to determine which way this investigation should run”). Postal Inspector Kormann further explained in more detail that:
[W]e asked for copies of correspondence and the nature of contact between Mr. Moore and Congress. And we had a very valid specific reason for doing that. And that’s because of the Buy American or Buy REI Amendment that looked out of place. Once we looked at the time-frame, why would there be a mid course correction that affirmed Mr. Moore’s position in July of ’85, but the. Buy American or Buy REI Amendment comes up three weeks later and requires a sole source award to REI. It does didn’t look completely coincidental. So we needed to find out what is the connection here. What is going.on between these people ... we needed to understand the nature of the interaction. We could not leave any stone, any obvious stone unturned. So, we asked for that information. And we got that information. We know one of his subpoenas asked for REI political action committee activity. Who contributed, how much on the employees side and where did it go on the Congressional side. And again, that was a very specific reason for that request. In the event we were able to make any connection in timing or amounts, we would have had to report that to the U.S. Attorney’s Office. As it turned out, there was no obvious conneсtion. I should say, unsavorily connection, there was no suspicion. None of the connections between Mr. Moore and Congress turned out to be anything that even bordered or could be seen as criminal activity. And the conclusion from that phase of the inquiry was that Mr. Moore had duped his- congressman. That Mr. Frost did not know that this was a Buy REI Amendment.
7/14/14 PM Tr. at 63-65.
The second subpoena, dated February 9, 1987, also cited by the plaintiff as targeting First Amendment protected activities, focused on records relating to REI’s retention and use of GAI, PL’s Ex. 183 at SMFC3 09279-81 (G.J. Subpoena, dated Feb. 9,1987 (“Feb.1987 Subpoena”)). This subpoena requested not only original notebooks, diaries and other records “relative to the ... actual services performed by [GAI] ...
.’’id.
at SMFC3 09281 (Feb.1987 Subpoena, ¶ 3),. but also “original records ... which reflect services performed by [GAI], ... to include but not be limited to ... (b) records reflecting the arrangement of interviews with journalists and reporters; (c) records reflecting meetings with United States Congressmen; ... (e) records which reflect consulting services or meetings with or regarding thé REI Political Action Committee ...
.’’id.
(Feb.1987 Subpoena, ¶ 2). By the time this subpoena
4. Documents Prepared by Postal Inspectors
In addition to the November 8, 1985 memorandum and two grand jury subpoenas, the plaintiff urges that malice is reflected in four other documents prepared by the Postal Inspectors: (1) a 35-page memorandum titled “Investigative Strategies,” prepared, in December 1985, Pl.’s Ex. 107; (2) a 12-page outline for an “Investigative Memorandum,” submitted to CPI Clauson on August 5, 1986, PL’s Ex. 195; (3) a 167-page memorandum titled “Details of Offense,” prepared in 1988, PL’s Ex. 291; and (4) an undated four-page memorandum titled “Arguments for Indicting the Corporation,” PL’s Ex., 295, which was authored by Postal Inspector Hartman, 7/14/14 AM Tr. at 93 (Hartman testimony). PL’s COL at 24-26 (referencing these four documents);
id.
at 28 (“the Inspectors ... drafted key documents that made clear their motivations”). Generally, these documents were prepared by various Postal Inspectors to communicate to their supervisors within the USPS Postal Inspection Sérvice and to the DC. USAO about the status and nature of the evidence collected during the. investigation. Indeed, the Postal Inspectors had the burdensome task of assisting the DC USAO with compiling and synthesizing information collected ■ from responses to over 200 grand jury subpoenas, interviews of- over 300 people, and the grand jury testimony of about thirty witnesses. Valder Dep..at 28182, Mar, 1, 2000. The plaintiff extracted certain phrases from these four “key documents” in an effort to persuade this Court (and the jury) that the inspectors had retaliatory or malicious motive. Two of the documents, the “Details of Offense”
The “Investigative Strategy” memorandum prepared in December 1985 summarized information developed to that date relevant to the investigation. This information included that between May and July, 1985, Peter Voss, Jackie Strange and another member of the BOG misrepresented to USPS management (and subsequently in testimony before Congress) that the entire BOG supported BOG’s Technology Committee’s expenditure of about $163 million in automátion budget funds for the immediate acquisition of MLOCRs from REI, without waiting until 1987 as the decision point for a mid-course correction as previously scheduled. PL’s Ex. 107 at SMFC400207-08. At the July and August 1985 full Board meetings, the BOG agreed only to a mid-course correction to MLOCR and “disagreed with Peters and Voss’ sole source proposal and sided with management’s plan of competitive test agreements for Phases IIA and III. “ Id. at SMFC4 00209. This led to the following question: “Why would Peters and Voss make misrepresentations to the Board of Governors, Congress and postal management and participate in this alleged scheme to defraud if they had no financial interest in the outcome of the procurement process?” Id. at SMFC4 00238; see PL’s Ex. 229 at 318 (Zip+4 Report, noting that “[djuring their October 23,1985, testimony before Congressman English’s committee, Governors Peters and Voss misrepresented the view of the Board of Governors when they testified-that the [BOGj’s-Audit Committee supported a sole -source award to REI”). As to REI, the memorandum notes that, during an interview with'the plaintiff and his subordinates, Messrs. Reedy and Bray, the plaintiff did not deny speaking to AEG about splitting the contract but “stated that AEG misunderstood” and he “was merely reciting what he would do it [sic] he was Postmaster General.” Id at SMFC4 00201.- These REI representatives also denied any contact with BOG members Voss, Peters and Camp, even though telephone records showed otherwise and documentation requested by Vice Chairman Voss turned up in correspondence from REI to Congress. Id. at SMFC4 00210-12. This led to the following question: “Why do REI, Peters and Voss continue to lobby for sole source procurement after they were granted their wish of midcourse change to MLOCRs, and competitive agreements were signed with an expedited test frame which benefits REI? Intense political lobbying is underway by REI’s president, William Moore.” Id. at SMFC400239. In order “to determine the scope of their relationships with each other and them activities as they relate to the MLOCR procurement,” the Postal Inspectors listed a number of interviews to conduct and subpoenas to issue, including to' REI and its consultants for, inter alia, “contributions to candidates for public office,” and correspondence with “elected and appointed public officials.” Id. at MMFC4 00234.
In context, the requests for information about REI’s contacts with Congress, while related to First Amendment protected activity, were for the purpose of determining the “scope” of relationships between REI and BOG members based upon analysis of the timing and overlapping substance of Vice Chairman Voss’ (and other BOG members’) statements and positions and those of REI. Given the risk of misinformation being relayed to Congress from senior officials at USPS as a result -of possible corrupt payments to those offi
The plaintiffs accusation that the sеcond document, the “Investigative Memorandum” outline, had a nefarious purpose to target “members of Congress who favored the multi-line technology,” because the document references “[i]dentify[ing] all Congressman, Senators and Executive Office personnel who- have taken a public position on ZIP+4 and/or multiline,” and “documenting] REI’s Political Action Committee contributions to the above politicians,” is misdirected. PL’s COL at 24. The purpose of this document was not to further the criminal investigation or target MLOCR congressional supporters but rather to provide “a comprehensive written report” concerning “the investigation and reviews of matters pertaining to the Postal Service’s past, present, and .pending procurement activities regarding the Zip+4 Program and the purchase of Optical Character Readers,” as requested by a congressional oversight committee. PL’s Ex. 229 at 1 (ZIP+4 Report); see Edwards'Dep. at 257-58, Feb. 15, 2000 (explaining: “This is an investigative memorandum .... this was not intended to further the criminal investigation as much as it was just to talk about the history of why we were at this . point where we were, the Postal Service — I say “we,’ the Postal Service — -just trying to sift out, you know, why do we make this decision or not make it or overrule it or retract it, or whatever.”). The plaintiff is critical of the Postal Inspectors for revising a draft of an outline for what became the 330-page ZIP+4 Report to Congress to include reference to two topics: (1) identifying congressmen and executive- office personnel “who have- taken a public position on Zip+4 and on multi-line,” as well as related correspondence and/or newspaper articles outlining their positions, and (2) documenting “REI’s political action committee contributions to the above politicians.” PL’s FOF ¶ 358 (comparing PL’s Ex. 195 at Bates PCS-004^ 0604 'with Pl.s’ Ex. 190 at Bates SMFC4 07638).
With respect to the first outline addition, the over-arching purpose of the report was to present a full picture of USPS’ procurement history, and to help explain the choices made by USPS regarding OCR technology. Documenting the input of .Congress, through members’ public state-: ments, was obviously pertinent to this aspect of the requested congressional report. Indeed, Postal Inspector Edwards testified that “as I understood it,, Chairman Ford wanted .to know all the, public statements that had been made. Once again, that’s what I was told,, so that’s what we went out to get.” 7/15/14 PM Tr. at 124-25 (Edwards testimony); see also id. at 258 (“Congress did have an influence on the actions management did or did not take”). The second outline addition, regarding REI’s PAC contributions, must be understood in the context of the criminal investigation: . Having tracked the use of REI funds to make corrupt payments to a USPS BOG Vice Chairman, Postal Inspectors also tracked REI funds to other policy makers with influence in steering USPS contracts to REI. As Postal Inspector Edwards explained, “the investigation at this point in July of ’86 was very much, a very fluidity situation, much of what -was eventually found out.came after this. And there was concern that the. money, you know, we didn’t know where the money was, where it led to or whatever. So I’m assuming the last part had something to do with that.!’ Id. .at 125.
Notably, the plaintiff does not cite the final’ ZIP+4 Report to bolster his malice
Finally, the plaintiff makes much of the two purported “smoking gun” documents titled “Details of Offense” and “Arguments for Indicting the Corporation,” exclaiming that these documents are “particularly troubling” because “the Postal Inspectors seemed to believe that engaging in lobbying activity like this was nefarious and could form the basis for a criminal indictment ... and that no member of the task force or supervising official in the Postal Service would do anything to rein in this assault on constitutionally protected activity.” PL’s COL at 26. The “Arguments for Indicting the Corporation” document was prepared by Postal Inspector Hartman “sometime during 1988” for AUSA Valder during the DC USAO’s consideration of possible charges against REI. 7/11/14 Tr. at 109, 117 (Hartman-testimony). The thrust of this document is set out in its first page, stating “CONCLUSION: This is a case of an underlying corrupt corporate management strategy to obtain USPS business rather than the isolated and independent overzealous actions of two corporate officérs.” PL’s Ex. 295 at SMFC3 09861. To support this “CONCLUSION,” the .memorandum lists nine numbered paragraphs outlining factual matters regarding REI’s Board and management’s awareness and support of the plaintiffs strategy, including the corporate funding of the plaintiffs “media and political campaign to discredit USPS management and cause financial harm.to USPS;” the “bankrolling]” of GAI “based primarily on their relationship with Voss;” the behavior of “REI officers” who “have been less than candid” and “Reedy lied to Postal Inspectors,” without voluntary correction by other REI officers; and a prior grand jury, investigation in 1977 that uncovered prior corrupt dealings by REI with USPS employees, namely REI’s reimbursement of a consultant for entertaining USPS officials to obtain confidential information, resulting in the firing of the USPS employees but no prosecution. Id. at SMFC3 09861-62.
According to the plaintiff, this document shows that REI and the plaintiff were indicted due to.the company’s public criticism of USPS and, at first blush, the reference to the public criticism of USPS as the first of the nine paragraphs is a jarring statement for federal law enforcement officers to make. Postal Inspector Hartman explained, however, that the reference to the company’s “media and .political campaign” was intended to respond to an argument made by REI’s counsel that the company should not be indicted because the “post office business was reportedly not that significant to REI” and instead by showing “how important this business was to REI and the motive for the conspiratorial actions.” 7/1/14 AM Tr. at 112 (Hartman testimony).
Similarly, the lengthy. “Details of Offense” document was prepared initially in about Februaryl988 by the Postal Inspectors for AUSA Valder to summarize the evidence against the- plaintiff and his co-defendants and, at some point, supplemented at the request of AUSA Valder, to respond to specific issues raised in the joint submission by counsel for REI, plaintiff and Mr. Reedy. 7/15/14 Trial at 75 (Kormann testimony noting that “[t]he document kept growing”); id. at 78 (Kormann testimony). This document also refers to the plaintiffs criticism оf USPS and his other lobbying efforts with Congress. See id. at 78-79. Postal Inspector Kormann testified that “when .the nature of the contact between Mr. Moore and Congress was brought to our attention, we were compelled to follow that to see if there was anything ... even possibly illegal about that ... so we were just seeing what was the nature of the contact. Was this completely innocent advocacy or was, in fact, either a congressional staff person or a congressman or woman possibly aware of what was happening? ... We ultimately concluded that Mr. Moore had misled — had basically misled congressmen about his intentions.” 7/15/14 Tr. at 79 (Kormann testimony).
In sum, the evidence presented at trial does not show that the investigation and indictment of the plaintiff was motivated by malice stemming from the plaintiffs public criticism of USPS or lobbying of Congress. The attention given by the Postal Inspectors to REI’s use of consultants and Congressional contacts was due to the suspicion, which turned out to be valid, that the consultants served as the conduit for illegal funds to the Vice Chairman of the USPS BOG in order for REI to obtain a sole source contract for hundreds of millions of dollars. Moreover, this same public official funneled confidential documents to REI for use in its lobbying efforts and made misrepresentations to Congress in furtherance of REI’s goal of obtaining a sole source contract. In other words, REI’s efforts to apply public, congressional and BOG pressure on USPS to speed up its switch from SLOCR to MLOCR technology, where REI was the sole supplier, were intertwined and appeared to work in tandem, with Vice Chairman Voss and GAI serving as the fulcrum. The plaintiff ignores this critical context in highlighting certain statement in documents prepared by the Postal Inspectors. Yet, this context wholly undercuts his contention that these documents support a finding of malice. The Court finds that the documents relied upon by the plaintiff do not show the requisite malice.
D. FTCA Judgment Entered in Favor of United States
After over two decades of litigation, the plaintiff was permitted to proceed to trial on his FTCA claim for malicious prosecution. After evaluating the testimony, ex-
Throughout the litigation, the plaintiff has faulted the Postal Inspectors for relying on circumstantial evidence regarding his knowledge of the illegal scheme, yet the plaintiff has proffered nothing but circumstantial evidence regarding the alleged malice of the Postal Inspectors — an irony not lost upon the Court. As a result, even •after trial, this Court is left in the same place as the very first judge on this Court to consider the plaintiffs claims: “Moore has completely failed to offer any direct evidence of malicious intent by the Inspectors.”
1993 Decision,
Accordingly, the Court enters judgment for the United States on the plaintiffs FTCA claim for malicious prosecution.
V. THE FTCA JUDGMENT BAR
Before turning to the plaintiffs motion for a new trial on his
Bivens
claim for retaliatory inducement to prosecution, the Court first addresses the effect of the FTCA’s “judgment- bar” provided in 28 U.S.C. § 2676.
74
Section 2676 provides, that “[t]he judgment in an action under [the FTCA] shall constitute a complete bar to any action by the claimant, by reason of the same subject matter, against the em
The FTCA judgment bar typically comes into play to preclude double recovery against both individual federal government agents and the federal government arising from the same facts.
See, e.g., Levin v. United States,
— U.S. -, -,
Rather, the ' question is " whether the plaintiffs failure to prevail on the FTCA claim renders his new trial motion moot and any evidentiary or procedural error he cites harmless. Other courts have so held.
See, e.g., Unus v. Kane,
The Supreme Court has explained that “[although the statutory judgment bar is arguably broader than traditional res judicata, it functions in much the same way, with both rules depending on a prior judgment as a condition precedent and neither reflecting a policy that a defendant should be scot free of any liability.”
Will v. Hallock,
Accordingly, the Bivens action is now moot and any possible error that the plaintiff claims justifying new trial on the Bivens action is rendered harmless as a result. Nevertheless, as discussed next, all the plaintiffs arguments for new trial fail for the reasons set forth below.
VI. MOTION FOR NEW TRIAL
The plaintiff presents three principal grounds of alleged error as his basis for a new trial. Specifically, the plaintiff finds fault in (1) a procedural ruling during jury selection; (2) certain evidentiary rulings prior to and during trial; and (3) certain instructions provided to the jury.
See generally
PL’s Mem. Supp. Mot. New Trial (“Pl.’s Mem.”), ECF No. 511-1.
76
A. Procedural Rulings Prior to Trial
Prior to trial, the plaintiff moved to limit the number of peremptory challenges afforded to the five defendants to the same number of such challenges afforded to the single plaintiff. See Mot. to Limit Defendants to Three Peremptory Challenges, ECF No. 472. After hearing argument from the parties, the Court denied the plaintiffs motion. See Minute Order (June 17, 2014). During jury selection, the plaintiff was afforded three peremptory challenges and the defendants were afforded a cumulative total of six peremptory challenges. Following jury selection, before swearing-in the juror's, the Court asked the plaintiff whether he objected to the constitution of the jury. The plaintiff did not. See 6/23/14 Tr. at 244-45. The plaintiff now argues that the disproportionate allotment of peremptory challenges requires a new trial, even though the plaintiff failed to object to the composition of the jury following 'selection and even though the disproportionate allotment of peremptory challenges between sides ¡is expressly permitted by statute.
By statute, “[i]n civil cases, each party shall be’ entitled to three peremptory challenges.” 28 U-.S.C. § 1870. Where a side has multiple parties, however, “[s]everal defendants or several plaintiffs
may be
considered as á single party for the purpose of making challenges, or the court
may allow additional
peremptory challenges and permit them to be exercised separately or jointly.”
Id.
(emphasis added). The statute does not proscribe the factors that should drive -a court’s exercise of its discretion and there is no legal requirement that each side in a civil case be able to exercise the same number of peremptory challenges. Indeed, courts in multi-defendant civil suits have regularly allocated an uneven number of peremptory challenges between the sides.
See, e.g., Tidemann v. Nadler Golf Car Sales, Inc.,
Nonetheless, the plaintiff relies primarily on a First Circuit opinion for the proposition that where the parties’ interests on one side .are identical, the grant of an unequal number of peremptory challenges as between the two sides is an abuse of discretion.
See
Pl.’s Mem. .at 7 (citing
Goldstein v. Kelleher,
In any event, even under the approach articulated by the First Circuit— and urged on this Court by the plaintiff— there is no demonstrated harm to the plaintiff from the provision of peremptory challenges. The First Circuit requires “some convincing indication in the record that if a further peremptory challenge had been allowed, [the aggrieved party] meant to challenge one or more jurors.”
Goldstein,
B. Evidentiary Rulings
The plaintiff challenges four evidentiary rulings: (1) the exclusion of evidence regarding the potential indemnification of the defendants; (2) the exclusion of a prior judicial opinion; (3) the admission of testimony volunteered by the plaintiff’s own witness regarding the plaintiff’s membership in a racially discriminatory country club; and (4) the admission, without instruction, of certain out-of-court state
1. Exclusion of Indemnifícation Evidence
Prior to trial, in an omnibus motion in limine, the defendants moved, under Federal Rule of Evidence 403, to exclude evidence or argument at trial that the défendan't's might seek indemnification following any adverse judgment. See Défs.’ Mots; In Limine, ECF No.' 417; Mem. Supp. Defs.’ Mots. In Limine at 25, ECF No. 419. Simultaneously, the plaintiff moved for- an order permitting him to introduce evidence that the defendants would be indemnified for any judgment against them. See -Pl.’s Mot. Source of Payment of any Judgment at 1, ECF No. 422. The motions were granted in part and denied in part. The Court placed a standard condition on the plaintiffs ability to introduce evidence that the defendants would be indemnified by the government for any jury award: The plaintiff would be permitted to introduce evidence of indemnification if the defendants put at issue their financial abil-ity to pay any judgment and thereby “opened the door”.to such evidence. See June 17, 2014 Minute Order. Otherwise, the admission of indemnification evidence in this case would result in “unfair prejudice, confusing the issues, misleading the jury; undue delay, wasting time, or needlessly presenting cumulative evidence.” See Fed.R.Evid. 403.
Indemnification evidence may have been relevant to the extent the defendants placed at issue their' financial resources and' ability to pay any damages award, which the defendants did not do. Moreover, the ‘admission of any evidence of indemnification would have resulted in a lengthy and prejudicial evidentiary excursion into a collateral issue. The parties would have needed to present evidence of whether the defendants would in fact be indemnified in the present disputе, as the pertinent postal regulations admit only the possibility of indemnification, not the guarantee.
See
United States' Postal Service Employee and- Labor Relations Manual § 668.22,
available at
http://about.usps. cOm/manuals/elm/elm.htm. Thus,- to ensure fairness, the parties' would have needed to present evidence regarding the likelihood of indemnification — a distraction that might' have misled the jury regarding the actual issue in the case regarding the defendants’ liability. Although the plaintiff offers an observation from a law review article that indemnification is all 'but assured,
see
Cornelia Pillard,
Taking'Fiction Seriously: The Strange Results of Public Officials’ Individual Liability Under
Bivens, 88 Geo; L. J. 65, 77 (1999), other authority suggests that indemnification is not assured,
see Anderson v. Creighton,
On the tenth day of trial, the plaintiff renewed his request to introduce indemnification evidence on the theory that the defendants had opened the door to such evidence during their opening statement and during the cross examination of the plaintiffs expert witness, Dan Cruse. See Mot.. Admission Indemnification. Evid., ECF No. 495. As discussed below, the Court disagreed with the plaintiffs assessment, concluding that brief, wholly accurate references to the nature of the lawsuit during an opening statement and three questions on cross examination of the plaintiffs witness did not sufficiently open the door to. permit evidence of potential indemnification. As a result, the Court restated the basis for its pretrial ruling: evidence relating to the defendants’ financial ability to pay a jury award opens the door to evidence of indemnification. Consistent with this ruling, the Court afforded the plaintiff the option to present indemnification evidence and simultaneously permit the defendants to open that door by introducing evidence.regarding the defendants’ assets, ability to pay, and likelihood of indemnification. Rather than opening that door, plaintiffs counsel made the strategic choice to withdraw his renewed motion — perhaps to .avoid the potential adverse risks to the plaintiff outlined above— and not to seek the admission of evidence relating to indemnification. See 7/9/14 AM Tr. at 53-55. Thus, the plaintiff did not present indemnification evidence and the defendants did not present evidence of their financial assets and the possible hardship that the payment of a damages award in the amount of $235 million (as requested by the plaintiff) would have on former, and now retired, government employees.
Despite withdrawing his motion, the plaintiff now objects to the Court’s determination that the defendants had not already opened the door to indemnification evidence. In seeking to revisit the Court’s pre-trial and trial rulings, the plaintiff urges the same case law and arguments already considered and rejected by the Court on two prior occasions.
As support, the plaintiff cites to two instances where the defendants purportedly opened the door to indemnification evidence. First, during the defendants’ opening statement, defense counsel stated on three occasions that the plaintiff was suing the defendants “personally.”
See
6/24/14 AM Tr. at 66, 86/ The plaintiff made no objection during or immediately following the opening statements. Second, the plaintiff points to the questions posed by defense counsel on cross examination of one of the plaintiffs damages expert witnesses. Specifically, during cross examination of Dan Cruse, defense counsel inquired whether: (1) the expert was aware that the defendants were being sued “personally,”
see
6/26/14 PM Tr. at 17; (2) the expert understood that the plaintiff was suing the defendants for “a very large sum of money,”
see id.
at 18; and (3) the expert had ever met the defendants (to whom he subsequently introduced the expert),
see id.
at 18.
79
The plaintiffs did not object to
Generally, evidence of payments from collateral sources is inadmissible.
See Lawson v. Trowbridge,
Certain out-of-circuit courts have permitted evidence of indemnification in limited circumstances. In
Lawson v. Trowbridge,
the Seventh Circuit reversed the exclusion of indemnification evidence because the defendants “direct testimony ‘opened the door’ ” to such evidence.
A: Yes.
The plaintiff also relies on
Khorrami v. Mueller,
No. 07-812,
A review of the statements alleged to open the door in the present case illustrates why the admission of indemnification evidence would have been wholly inappropriate. The plaintiff first complains that during opening statements, the defendants made the simple, and legally accurate, observation that thé plaintiff was suing the defendants personally. 80 Yet, this same observation was already provided to the venire panel prior to jury selection, see 6/23/14 Tr. at 37 (providing description of the case), and to the jury following jury selection, see id. at 252 (same). 81 The plaintiff did hot object to the description then, nor could he, since (1) it is a legally accurate reflection of the plaintiffs own cause of action, and (2) plaintiffs counsel subsequently made the same representation to the jury. In his case-in-chief, plaintiffs counsel re-enacted the following .exchange from one of the defendants’ May 7 and May 8, 1998 deposition testimony: “Mr. Pohl: You understand then that the current state of the case that you are being sued individually?” To which the reader (standing in for Postal Inspector Hartman) responded, “Yes.” 7/7/14 AM .Tr. at 18. Plaintiffs counsel’s own representation to the jury that defendant Hartman was being sued in a-personal capacity severely undermines the plaintiffs argument that such information is so suggestive of poverty or inability to pay, that it necessarily opens the door to evidence of indemnification.
The plaintiffs next argument for his view that defense counsel opened the door fares no better. As noted, the plaintiff argues that defense counsel opened the door to indemnification evidence when defense counsel questioned whether the plaintiffs expert understood that the plaintiff was suing the defendants for “a very large sum of money.” 6/26/14 PM Tr. at 18. Yet, once again, plaintiffs counsel made
the same observation
to the jury. During the plaintiffs opening statement, when, discussing the requested .damages, plaintiffs counsel noted that the amount made by the plaintiff during his career constituted “a lot of money,” 6/24/14 Tr. at 45, but that the plaintiff was requesting even more in damages, noting that the damages number “gets beyond 50 million and even beyond 100 million,”
see id.
at 46. In total, the plaintiff was seeking approximately $235 million in damages. 6/27/14 Tr. at 39-40. Even plaintiffs counsel described this amount as “astronomical.”
Id.
Defense counsel was merely stating the obvious: the plaintiff chose to bring a suit alleging nearly a quarter billion dollars in damages — a very large sum of money. Such observation, repeated by the plaintiff
Finally, the plaintiff challenges the introduction of the plaintiffs expert witness to the individual defendants.
See
6/26/14 Tr. at 18. This low-key approach permitted the defendants to counterbalance the plaintiffs attempt to demonize the defendants, and amounted to effective trial strategy. Mere introduction of the defendants does not amount to the defendants’ direct testimony, let alone an argument regarding their financial ability to pay, and is not the type of evidence that would justify or warrant the introduction of indemnification evidence.
See Lawson,
The defendants never opened the door to indemnification evidence and therefore its exclusion was appropriate.
2. Exclusion of Prior Judicial Opinion
The plaintiff laments the Court’s pre-trial exclusion of references to,- and use of, the opinion issued by Judge George Revercomb on November 20, 1989,
see Recognition Equip., Inc.,
Under Rule 403, even relevant evidence may be deemed inadmissible and subject to exclusion if “its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudiée, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403;
see also United States v. Moore,
Allowing the plaintiff to exploit and present the Rule 29 Opinion to the jury would have resulted in unfair prejudice to the defendants for two main reasons. First, this would have posed the significant risk that the jury would give undue weight to the judicial findings in the Rulé 29 Opinion.
See id.
As the First Circuit Court noted, “[a] lay jury is quite likely to give special weight to judicial findings merely because they are judicial findings.”
Faigin v. Kelly,
Second, the Rule 29 Opinion might have also “confuse[d] the issues” and “misleadf ] the jury,” because the Rule 29 Opinion was issued in the context of a Federal Rule of Criminal Procedure 29 judgment of acquittal. Fed. R. Evid. 403. Evaluation of a Rule 29 motion requires application of a different legal standard from the legal standard the jurors were required to apply to the evidence in this case. The Rule 29 Opinion analyzed the evidence, as required under Rule 29, by determining whether “a reasonable trier of fact would have a reasonable doubt as to the existence of any of the essential elements, of the crime.”
Recognition Equip, Inc.,
Finally, a cautionary instruction would not overcome the.unfair prejudice of admitting the prior judicial opinion because of both the nature of the evidence and its judicial source. The jury must follow the Court’s instructions on the law and presenting the Rule 29 Opinion only would have confused the jury as to the relevant and applicable source of law.
See Dodson v. CBS Broad. Inc.,
In short, excluding the Rule 29 Opinion was proper and not error.
3. Plaintiff’s Country Club Membership
During cross-examination and without prompting, the plaintiffs witness — NFL Hall of Fame Quarterback Roger Staubach — volunteered that the plaintiffs country club, the Dallas Country Club, had a history of not admitting “just the right people” and cited this as his reason for not joining. See 7/9/14 AM Tr. at 27-28. The plaintiff now objects that the Court did not exclude evidence volunteered by the plaintiffs own witness. The plaintiffs objection is without merit.
From the outset, - the plaintiff has claimed reputational ruin as a central theme of his case and a key component of his damages claim. See Compl. ¶ 29 (alleging that the plaintiffs indictment resultéd in a “loss of reputation in and among business associates, friends and family”); Joint Pretrial Statement at 10 (claiming damages for reputational injury). During the plaintiffs own direct testimony, the plaintiff testified that the indictment and criminal prosecution negatively impacted him and his family’s social status within the community. 6/24/14 PM Tr. at 68. The plaintiff sought Mr. Staubach’s testimony in order to buttress his argument regarding his fallen standing within the Dallas, Texas business community. Unsurprisingly, the defendants disputed the plaintiffs narrative and attempted to undermine the plaintiffs central conceit during the cross-examination of Mr. Staubach. During cross-examination, the defense inquired whether Mr. Staubach and the plaintiff were both members of the Dallas Country Club. Without further prompting, Mr. Staubach volunteered that he never joined the Dallas Country Club because he “wasn’t crazy about its lack of allowing just the right people” to join. 7/9/14 AM Tr. at 27-28. After being asked for clarification, Mr. Staubach explained that minorities were not admitted to 'the club and that he refused to join the club as a result. Id. at 28. 82 The plaintiff offered no objection. 83
The plaintiff now faults this Court .for not excluding “irrelevant and unfairly prejudicial evidence about the Dallas Country Club’s alleged exclusionary, race-based admission policies.” , Pl.’s Mem. at 26-27, As an initial matter, it is unclear how the Court could exclude in advance evidence volunteered by the plaintiffs witness and without,an objection pending. In addition, the plaintiff never moved to strike the answer or request a limiting instruction regarding the, club’s race-based admission policies in order to cure the alleged unfair prejudice and defense counsel did not ask questions, solicit evidence, or argue during summation about the race-based admissions policies of the Dallas Country Club. Thus, any prejudice from the plaintiffs witness’s testimony was minimal.
The line of questioning by defense counsel regarding the plaintiffs and the witness’s membership in a country club was entirely appropriate. Evidence that the plaintiff was admitted to an exclusive country club after his indictment, is highly probative of the alleged reputational harm (or lack thereof) to the plaintiff. While the plaintiff may not like the answers volunteered by his own witness, such dislike does not establish the basis for an'objection relating to a properly-formed question regarding a highly probative topic.
The plaintiff made the strategic choice to call as a character and damages witness, Roger Staubach, a man who has been in the public. eye since he was a Heisman trophy winner and star quarterback at the United States Naval Academy. Unsurprisingly, Mr. Staubach is well practiced in protecting his public image and his testimony in a public courtroom reflected- his desire not to be associated with an institution that might tarnish that image.
The plaintiff is not entitled to a new trial on this ground.
4. Admission of Hearsay Evidence
The plaintiff next challenges the Court’s admission of, and then subsequent refusal to provide a jury instruction regarding, certain hearsay evidence. Specifically, the plaintiff challenges the admission of “interview memoranda,” “field notes,” and “summaries of the evidence” created during the course of the investiga
The present casé involved significant amounts of hearsay evidence.. This was not surprising as- several unique factors . converged to create the somewhat unusual evidentiary record in this case. First, the events in question occurred in the mid-to-late 1980s leaving behind a documentary trail but also the risk of faulty recollections and unavailable witnesses. Second, this case turned critically on whether probable cause existed to charge the plaintiff and’ whether the defendants acted with ’ retaliatory motive. Hearsay evidence may-form the basis of a probable cause determination, see
Illinois v. Gates,
■ Although the plaintiff now criticizes the admission of out-of-court statements, the plaintiff made extensive use of out-of-court statements during his ■ case-in-chief. See, e.g., PL’s Ex. 44 (handwritten notes of interview with Frank Bray); PL’s Ex. 92 (handwritten notes of Postal Inspector Hartman during interview of William Chapp);- PL’s Ex. 101 (summary memorandum of interview with Kurt Scheidhauer); PL’s Ex: 105 (memorandum of interview of plaintiff); PL’s Ex. 110 (memorandum" of interview of Peter Voss). In fact, the plaintiff made extensive use of the hearsay evidence about which he now complains, such as interview-notes. See generally id. This is not surprising. As early as .the pre-trial statement, when making objections to the defendants’ proposed exhibit list, the plaintiff recognized the prppriety of admitting' out-of-court statements because such evidence would be admissible not for the. truth of the matters asserted but-for other non-hearsay purposes relating to probable cause and motive. See Joint Pretrial Statement at 2 n.l, EOF No. 438-4 (“Memoranda, notes, and other records purporting to document the conduct of Defendants .... are inadmissible hearsay to the, extent introduced against Moore for the truth of the matters asserted therein ... [but] the exhibits may be admissible for other purposes.”). This is hornbook evidence law. See 2 McCormick On Evid. § 249 (Kenneth S. Broun ed.,7th ed. 2013) (“If the statement is not an assertion or is not offered to prove the facts asserted, it is not hearsay.”). Indeed, -the plaintiffs own request for a new trial also recognizes the propriety of admitting such evidence for non-hearsay purposes. See Pi’s Mem. at 13 — 14 (“Nearly all of these documents and related testimony had some arguable relevance to one or more of the issues presented to the jury, including whether Defendants harbored retaliatory motives against Moore, whether they induced Moore’s prosecution, and whether the evidence accumulated gave rise to probable cause.”).
Due to the''nature of- the plaintiffs claims, the parties largely built their respective cases upon out-of-court statements and documents and, as" such, the plaintiffs general criticism that-the Court
Closer to the mark, however, is the plaintiffs complaint regarding the lack of an instruction concerning the permissible purposes of the admitted evidence. Ordinarily, under Federal Rule of Evidence 105, if evidence is admitted for a limited' purpose, a party may request an instruction informing the jury of the purpose for which the evidence was admitted and the heed to consider only that purpose. The party’s request “should be ‘timely,’ ‘specific,’ and ‘of record.’ ” Kenneth W. Graham Jr., 21A Fed. Prac.
&
Proc. Evid. § 5065 (2d ed.2014);
see also United States v. Thirion,
The plaintiff first requested a limiting instruction on the thirteenth day of trial, following the defendants’ introduction of Defense Exhibit 228, a chart originally prepared during the events in question that summarized information collected by the defendants from various sources during the course of the original investigation into the plaintiff. See 7/11/14 AM Tr. at 53-54. This request was made long after other similar hearsay evidence was introduced by both the plaintiff and the defendants. Singling out Defense Exhibit 228 for a limiting instruction, when the plaintiff had already admitted without objection at least fifty-eight other similar exhibits dating from the same period and ostensibly subject to the same limiting instruction, raised apparent fairness issues. As a result, due to the significant volume of out-of-court statements admitted not for the truth of the matter asserted, both parties were requested to work towards an instruction regarding' this type of evidence.
Five days later, the plaintiff again-raised the issue of a limiting instruction. See 7/16/14 AM Tr. at 5-6. Only-this time, the plaintiffs request was not limited to Defense Exhibit 228, but instead covered “interview reports” generally. See id. (“[L]ast Friday we had a colloquy about interview reports coming into evidence ... and I raised with the Court whether we could have an instruction that indicates that such interview reports which contain hearsay are not necessarily coming in for the truth of the contents.... ”). The plaintiff likewise provided a proposed draft instruction, which the defendants opposed. The proposed instruction was not tethered to any piece of evidence but instead made blanket reference to all “summary statements, interview memoranda, ■ summary charts, handwritten notes and other similar documents that were authored' by the postal inspector defendants and/or Assistant U-.S. Attorney Joseph Valder....” See Ex. A, Pl.’s Mem, EOF No. 511-2. With respect to all such documents, the requested instruction stated:
You may not consider such summary statements ... as evidence of the truth of- the facts asserted by the persons interviewed. These exhibits rnay be considered by you as evidence of the process used during the investigation and as evidence of the state of mind of .the creators of the documents. For example, a memorandum of [an] interview of a third person may be evidence that an interview was done on a particular date [for] a particular witness but statements contained in the memo attributed to others, including the person interviewed are not evidence of the truth of those statements.
You are permitted to consider these summary statements ... as evidence of the investigation conducted by, and the thought process of, the postal inspector defendants and Mr. Valder, including as evidence of what they were told by the persons they interviewed, what information they considered significant, and how they interpreted, processed and used that information. When considering this evidence in this manner, it is for you to decide whether or not to believe the evidence.
Id.
The plaintiff requested the instruction to be “given before the close of evidence” rather than during the final instructions. See 7/16/14 AM Tr. at 5-6. The defendants objected to the proposed instruction on the ground that it would unfairly confuse the jury and was unfairly prejudicial given that the plaintiff had admitted much of the same type of evidence. earlier at trial. See id. at 9-10. The plaintiffs proposed instruction was denied.
The plaintiffs instruction would have needlessly confused the jury, since it was unconnected to any piece of evidence and was divorced from the time of admission of the pertinent evidence. The reason a party’s request for an instruction must be timely and specific is because the jury needs clarity regarding the proper use of the evidence. By failing to specifically object throughout trial as evidence was admitted, and by providing only a vague and generalized proposed instruction subsequently, the plaintiff failed to abide by the requirements for a limiting instruction.
See Thirion, ■
C. Jury Instructions
Finally, the plaintiff finds fault .with certain instructions provided to the jury. The plaintiff faults the Court for failing to provide an instruction regarding concerted action, for failing to use' the plaintiffs suggested language regarding probable cause, for providing an incorrect instruction regarding inducement, and for providing instructions sua sponte that the plaintiff now claims may have tarnished the jury’s perception of the plaintiffs case and counsel. Each of plaintiffs alleged errors is addressed below.
1. Concert of Action Instruction
Prosecutorial immunity prevents the plaintiff from bringing suit against Joseph Valder, the line prosecutor in the underlying criminal action.
See Moore II,
Under
Ashcroft v. Iqbal,
The plaintiff, contends that conspiratorial liability remains in
Bivens
suits and cites a string of cases for the proposition that “conspiratorial liability for constitutional torts ‘remains good law following ...
Iqbal.’”
PL’s Mem. at 9 n.2 (quoting
Great W. Mining & Mineral Co. v. Fox Rothschild LLP,
The plaintiff also relies heavily on the D.C. Circuit’s decision in
Wesby v. District of Columbia,
The plaintiff distorts
Wesby,
which concerned proximate causation, not vicarious liability. ■
Wesby
addressed the question of whether the actions of the police officers
caused
the false arrest. The D.C. Circuit held that “the
cause
of the group arrest was the investigation and erroneous determination . regarding probable cause” and that liability attached because both police officers “were 'the hub of that investigation.”
Wesby,
The plaintiff appears to miss the" fact that rather than support his cause,
Wesby
supports the decision to deny a jury instruction in the present case.
Wesby
recognizes that a plaintiff is “required to ‘produce evidence that each [officer], through [his] own' individual actions, has violated the Constitution.’”
Id.
(quoting
Elkins,
2. Probable Cause Instruction
The plaintiff objects that the Court did not adopt in full his proposed jury instruction regarding the meaning of probable causé, but instead used the standard instruction employed in D.C. Civil Jury Instructions (“Blue Book”) § 18.03, as modified for this case.
89
Notably, and ultimately fatal to the plaintiffs argument, the plaintiff does not allege that the probable cause instruction provided to the jury reflected an incorrect statement of the law. Indeed, the instruction provided in this case was perfectly consistent with the D.C. Circuit’s recent decision outlining the requirements of probable cause.
See Wesby,
“Jury instructions are proper if, when viewed as a whole, they fairly
The plaintiff levels three criticisms at the probable cause instruction in this case. First, although the instruction admonished the jury to consider the “totality of the circumstances,” the instruction did not explicitly state “the need to consider the exculpatory evidence” as contained in the plaintiffs proposed instruction. Pl.’s Mem. at 21. Second, the instruction omitted the plaintiffs proposed language about “the need for a ‘full and fair investigation.’ ”
Id.
at 22. Finally, although the instruction- defined probable cause as an objective standard, the plaintiffs proposed instruction included additional language stating probable cause did not depend on what “these defendants or the prosecutor personally believed.”
Id.
The plaintiff believes such language was necessary to provide more “express direction” regarding the objective standard of probable cause.
Id.
None of the plaintiffs criticisms fault the legal accuracy of the instruction, only its wording and emphasis. Yet, a court is “not required to give [an instruction] .in any particular language.”
Bell Helicopter,
3. Inducement Instruction
The plaintiff also challenges the jury instruction concerning “inducement.” Although the plaintiff phrases his challenge
The instruction provided to the jury and challenged by the plaintiff provides in relevant part:
To meet his burden on the second element — retaliatory inducement, of prosecution — you must find that the plaintiff has proven by a preponderance of the evidence that each defendant acted in retaliation and also induced the prosecutor to bring the charges that would not have been initiated without the defendant’s urging. ...
[Y]ou must find that the defendant you are considering induced the prosecutor to file criminal charges against the plaintiff, and the prosecutor would not have filed the charges without that inducement. Inducement is. defined as intentionally taking an action to convince another individual to do something that he or she would not have otherwise done. You may, but are not required, to infer that the defendants induced the prosecutor to bring the criminal case if the plaintiff has shown that the defendants intentionally withheld evidence from the prosecutor or that they misrepresented or falsified evidence presented to the prosecutor.
Jury Instructions at 6-7 (emphasis added). The plaintiff claims that this instruction was error because “a plaintiff who proves retaliatory motive on the part of the official urging prosecution' coupled with the absence of probable cause for the charges need not further prove that the charges would not have otherwise been filed.” PL’s Mem. at 24.
The basis for the instruction given is the Supreme Court’s decision in this very case,
Hartman v. Moore,
In deciding to add a no-probable cause requirement,
Hartman
detailed the difficulties of the causal inquiry for cases of retaliatory inducement to. prosecute.
Hartman
did not waver, however, in its recognition that “a plaintiff like Moore must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that
would not have been initiated without his urging.” Id.
at 262,
. The plaintiff interprets
Hartman
differently. According to the plaintiff,
Hartman
did not add an element to claims for retaliatory prosecution; rather,
Hartman
created a “special rule of proof,” whereby the traditional causation elerhent is supplanted by the requirement to show a lack of probable cause.
See
Pl.’s Mem. at 24. As a result, according to the plaintiff, a showing of lack of probable cause fully satisfies the requirement that the defendant’s retaliatory motive caused the wrongful prosecution. This .position is not without support.
92
The plaintiffs reading of
Hartman
is too narrow. First, the plaintiffs reading cannot square with
Hartman’s
admonition that “Moore must show that the nonprosecuting official acted in retaliation, and must also show that he induced the prosecutor to bring charges that
would not have been initiated without his urging.” Id.
at 262,
Second, case law from other circuits supports this Court’s view that the absence of probable cause requirement is a separate element of the tort and not the method of proving causation. In
Rehberg v. Paulk,
Third, by removing the traditional requirement of but-for causation, the plaintiff would upend the structure of the criminal justice system, which places the decision to file charges squarely on the prosecutor, not the investigator. “The role of a prosecutor is to see that justice is done.”
Connick v. Thompson,
Hartman’s
recognition that a lack of probable cause may rebut the “presumption of prosecutorial regularity” is not to the contrary.
Fourth, beyond upending the traditional allocation of responsibilities in criminal prosecutions, the removal of but-for causation would void a foundational element of classical tort law — a showing of cause in fact. Absent clearer language from the D.C. Circuit or the Supreme Court regarding such a profound change in the resolution of constitutional tort claims, this Court will not presume that the requirement of but-for causation be eliminated. To be sure, while the common law of torts does not determine the precise contours of a
Bivens
action,
see Hartman,
The instruction requiring the plaintiff to prove that the prosecution would not have been initiated without the defendant’s inducement was not in error, but was mandated by
Hartman,
D. Judicial Conduct
Finally, the plaintiff faults the Court for giving “the jury the incorrect impression that Moore’s counsel had done something improper, thereby undermining the effectiveness of Moore’s presentation and prejudicing the jury against Moore.” PL’s Mem. at 29. Specifically, the plaintiff points .to:. (1) the Court’s questioning of witnesses; (2) the provision of -a jury instruction regarding the import of certain deposition questions; and (3) an instruction provided to the jury following a ten minute recess upon the conclusion of the plaintiffs summation. Id. at 29-32. Each of the plaintiffs complaints will be addressed in order below.
1. Questioning of Witnesses
In a footnote, the plaintiff bemoans the Court’s questioning of several witnesses in ways the plaintiff now deems helpful to the defense.
See
PL’s Mem. at 31-32 n.15. The plaintiff presumably banishes this argument to a footnote because of- the overwhelming case law in this Circuit permitting judicial questioning. As an initial matter, “[i]t is beyond cavil that trial judges may question witnesses.”
United States v. Winstead,
• Moreover, the plaintiff was not harmed by such questioning. To ensure that the jury did not draw inappropriate inferences from the Court’s questioning of witnesses, the jury, was instructed that “[d]uring the course of the trial, I may .have asked questions of a witness, to obtain,information or to bring out facts or to clarify facts. You should not take my questions to witnesses as any indication of my opinion about how you should determine the facts.” Jury Instructions at 3. The plaintiff can show neither error nor harm from the Court’s questioning of any witness.
2. Instruction Concerning Deposition Questions
Finally, the plaintiff faults the Court for reminding the jury on the ninth day of
A court has an independent responsibility to “exercise reasonable control over the mode and order of examining witnesses and presenting evidence so as to ... make those procedures effective for determining the truth.” Fed. R. Evid. 611(a). Thus, “[t]he trial judge is necessarily entrusted with a large measure of discretion to control the introduction of evidence and to assure that it is logically and understandably presented to the jury.”
Baker v. United States,
The plaintiff cannot demonstrate any harm from a jury instruction that was an accurate and well-accepted statement of the law and that was given in such a manner as not to suggest any impropriety by the plaintiff. The plaintiffs argument fails.
3. Instruction Following Summation
Plaintiffs counsel’s closing argument was replete with impermissible appeals to the jurors’ emotion. For instance, plaintiffs counsel stated that “[w]hen law enforcement officers go over the line, the conduct injures us all.” 7/18/14 AM Tr. at
Following the plaintiffs counsel’s arguments, counsel for both parties were summoned to the bench to discuss the proprietary of plaintiffs counsel’s summation. The Court expressed concern that plaintiffs counsel’s argument had improperly appealed to the jurors’ emotions beyond the four comers of the evidence presented at trial and asked the parties to draft a proposed curative instruction. Following a ten-minute recess, the defendants provided a proposal to the Court. After reading the defendants’ proposed instruction, plaintiffs counsel stated that “I did not mean to, or believe I crossed the line.... But if the Court feels that I did, I have no objection to the Court giving [the defendants’ proposed instruction].” 7/18/14 AM Tr. at 133. Upon the jury’s return, the Court provided the following instruction: • .
“Ladies and Gentlemen, you heard.arguments in the summation on behalf of the plaintiff in this case referring to sending a message and appealing to your emotions. You’re going to be instructed on the law in this case and, as I instructed you during the preliminary instructions, you are to decide this' case without bias, emotion, sympathy or personal -interest, and to decide this case based on the evidence presented in this case and the law as I will instruct you, not on the basis of sending a message or on the basis of any emotions.
Mat 133.
Courts forbid appeals to the “golden rule” and “send a message arguments” in order “to prevent the jury from deciding a case based on inappropriate considerations such as emotion.”
Candle v. District of Columbia,
The plaintiff argues that send á message •arguments are appropriate where the contested issue concerns punitive damages because deterrence is one of the purposes behind such awards.
See
Pl.’s Mem. at 30-31. The plaintiffs argument is not without support as some courts permit such arguments in the context of punitive damagеs.
See, e.g., King v. Maori,
Nevertheless, three points persuade the Court that such argument was inappropriate and warranted a curative instruction in this case. First, the permissibility of a send a message argument in punitive damages cases is not quite as universal as the plaintiff concludes. For instance, in
Porter v. Cabral,
No. 04-11935,
Second, the D.C. Circuit in
Caudle v. District of Columbia
drew no distinction between the propriety of send-a-message and golden rule arguments in the context
of
compensatory damages and their propriety in the context of punitive damages. Rather, the D.C. Circuit noted that “all circuits that have considered the issue have held a golden rule argument improper if made with respect to
damages
.... ”
Third, the plaintiffs counsel’s argument was not made in a singular passing, but was repeated both at the beginning and ending of the summation and was comingled with 'golden rule appeals. Taken together, the summation presented' an appeal for the jury to make an emotional decision and an instruction was warranted to clarify the proper basis of decision-making for the jury! Like the argument condemned in
Caudle,
the plaintiffs counsel made repeated references to sending a message or other emotional appeals.
The Court’s instruction following the plaintiffs summation was appropriate and does not warrant a new trial. 99
VII. CONCLUSION
After a “herculean effort,”
see Moore V,
On the FTCA claim, the plaintiff alleged that the Postal Inspectors provided grand jury materials to a testifying witness in order to -procure an ■ indictment that lacked probable cause, "all in retaliation for the plaintiffs protected First Amendment activities. The trial evidence showed, however, that while the Postal Inspectors assisted the prosecutor in providing interview summaries to a witness in order to refresh his recollection prior to testifying before the grand jury, the Postal Inspectors did not provide the testifying witness with any grand jury materials. Likewise, the trial evidence revealed that, far from lacking probable cause for an indictment, the circumstantial evidence against the plaintiff was, as he acknowledged, “suspicious,” 6/25/14 AM Tr. at 24, and ample to support probable cause. Finally, in perhaps the biggest change from the plaintiffs pretrial posture, the plaintiff admitted during his trial testimony that the Postal Inspectors were motivated to investigate and recommend an indictment against him by their belief in the plaintiffs guilt, which belies the plaintiffs claim that the Postal Inspectors’ actions were prompted by a malicious intent.’ In sum, rather than produce a smoking gun, the plaintiffs trial evidence produced much hot air that was insufficient to sustain his claims. As a result, and for the reasons explained above, the Court again — as two other Judges on this Court previously held — denies the plain
As a consequence of the plaintiffs failed FTCA claim, the plaintiffs request for a new trial on his Bivens claim is rendered moot. In any event, having received one jury trial on his claim for retaliatory inducement to prosecution, the plaintiff presents no grounds that would justify a second jury trial. Thus, even if the plaintiffs Bivens claim were not otherwise barred, the plaintiff would not be entitled to a new trial.
As the Supreme Court noted over sixty years ago, “[tjhere must be an end to litigation someday....”
Ackermann
.
v. United States,
For the reasons set forth above, the plaintiffs claims are denied. An appropriate Order accompanies this Memorandum Opinion.
Notes
. Citations to the transcript of the trial, held from June 23, 2014 to July 21, 2014, include the trial date, morning or afternoon session, transcript page and the witness, where not otherwise clear from the context of the sentence. Only portions of the trial transcripts are filed on the docket and, consequently, no ECF number is provided for the transcripts. See generally Dkt.'Case No. 92-2288.'
. At the time the plaintiff served as CEO, of REI, the company was not on the "Fortune 500” list of the largest publicly traded companies, according to the plaintiffs own damages expert, who computed the plaintiff’s potential compensation loss from REI based upon rankings of companies smaller than those on the Fortune 50Ó list. See 6/27/14 AM Tr. at 40-41 (Dr. Fanara testifying that the damages requested for lost compensation were reasonable because the number was within the range of what CEO’s were making' at Fortune 800 companies until 1999 and then Fortune 500 companies from 2000-2004).
. This damages claim was less than half the amount of up to $688,636,410 initially requested by the plaintiff, who also sought reputational, emotionаl, physical distress and punitive damages on top of that amount. .See Pre-Trial Statement, Pl.’s Itemization of Damages from Defs., at 9-8, ECF 438. Plaintiff’s counsel reduced the damages claim during consideration- of the. defendants' pretrial motion to exclude evidence regarding the plaintiff's stock-related damages. Pl.’s Supp. Mot. in Limine, at 1-, ECF. 480 (stating "in an effort to streamline his damages case, Moore is no ■longer seeking to recover as damages- the loss in value óf the shares of REI stock that he owned at the time of his indictment”). With respect to the reduced damages claim of over a quarter billion dollars, the plaintiff elicited testimony from his proffered damages expert that this damage calculation represented a "very conservative number.” 6/27/14 AM Tr. at 40 (Dr. Fanara testimony).
. The jury deliberations took approximately one day, with deliberations beginning late in the afternoon on Friday; July 18, 2014 and concluding the next trial day, in the middle of the afternoon of Monday, July 21,- 2014. See 7/18/14 Tr. at 240 (noting that the jury retired to deliberate on Friday, July 18, at 3:28.p.m.); Jury Note 3 (stating that the jury had reached a verdict, on Monday, July 21, 2014 at 3:15 p.m.), ECF No. 504.
. This original Bivens complaint named the following seven defendants: AUSA Joseph B. Valder and six Postal Inspectors, Michael Hartman, Frank' Kormann, Robert Edwards, Pierce McIntosh, Daniel Harrington and Norman Robbins. After the matter was transferred to this Court, Mr. Harrington was terminated as a defendant on April 24, 1996, upon notice of his death. See Case No. 92-2288, Notice of Suggestion of Death, ECF No. 56 (defendant Harrington terminated on April 24, 1996). Although former Postal Inspector Norman Robbins is also deceased, the plaintiff decided nevertheless to proceed against him at the jury trial with the substitution of Mr. Robbins’ personal representative. See Pre-Trial Statement at 2 n.2, ECF No. 438. Given the duration of this litigation, AUSA Valder and the Postal Inspectors named as defendants have been long retired from their respective government jobs.
. The district court in the Northern District of Texas winnowed down the plaintiffs' Bivens claims by, inter alia, dismissing Mrs. Moore's claims, and then transferred the case to this ■ Court, after concluding that personal jurisdiction over the Postal Inspectors was lacking in Texas. See Moore v. Valder, et al., Civ. No. 3-91-CV-2491-G (N.D. Tex. June 29, 1992), ECF No. 54; Moore, et at, Civ. No. 3:91-cv-02491-G (N.D.Tex. Sept. 21, 1992), ECF No. 55.
. The court looked behind the plaintiff's hyperbolic characterization of the evidence noting, for example, that the plaintiff’s allegation about the government’s "falsified” evidence, "did not involve the actual fabrication of evidence, but instead merely refer[red] to the government’s failure to include exculpatory evidence in witnesses' statements — the same conduct of which the -plaintiff[ ] complaints] elsewhere.” .
1993 Decision,
. The district court concluded that AUSA Valder was entitled to summary judgment on the plaintiff’s Bivens retaliatory prosecution claim because the AUSA’s decision to prosecute the plaintiff was protected by absolute immunity. See 1998 Decision at 17-24. Although acknowledging that the only allegation in the FTCA claim for malicious prosecution that could survive the discretionary function exception was 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 testir mony 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 Compl. ¶ 26, the court nevertheless determined that this allegation could not support a claim for malicious prosecution and abuse of discretion against AUSA Valder. 1998 Decision, No. 92-CV-2288, at 32-43. The court reasoned that malicious prosecution and abuse of discretion claims arise from conduct of "investigative or law enforcement officers of the United States government,” and "investigative or law enforcement officer means any officer” of the United States who is "empowered by law to execute searches, seize evidence, or make arrests for viplatipns pf Federal Law.” Id. (citing 28 U.S.C. § 2680(h)). Since federal prosecuters dp npt fit within this definitipn, the ceurt dismissed the FTCA malicieus prosecutien and abuse of discretion claims against the United States. Id. at 31-32, n.20-21.
. The Circuit affirmed the dismissal of the
Bivens
abuse of process claim against all defendants, explaining that an abuse of process tort requires an allegation of “grand jury [ ] misuse[]” and the plaintiff did not allege that the Postal Inspectors "used the grand jury for an improper purpose.”
Moore II,
. The Circuit disagreed with the district court’s view that ”[e]ven if ... Spartin’s testimony ‘caused’ the indictment, this would not satisfy the first element because a grand juty indictment cannot by itself initiate a prosecution,”
Moore II,
. This Supreme Court decision is discussed in more detail, infra, Pari VI. C.3., in connection with the plaintiff's motion for a new trial.
. Although the Circuit noted that "the absence-of-probablé-cause requirement is not 'an element of a First Amendment retaliation violation,’ ”
Moore VI,
. This case was reassigned to the presiding Judge on June.2, 2014, see ECF No. 108, due to recusal of the prior Judge and shortly before the scheduled trial date. That recusal prompted the plaintiff to move to vacate several .prior adverse pre-trial rulings, which motion was granted. See Minute- Order, Case No. 92-2288 (D.D.C. June 6, 2014), ECF No. 453.
. The list of exhibits admitted into evidence by the plaintiff and by the defendants are docketed at Case No. 93-324, ECF Nos. 121, 122, respectively.
. The plaintiff chose to present deposition testimony from seven witnesses — the five defendant Postal Inspectors, former AUSA Valder and former Chief Postal Inspector Charles Clauson — even though these witnesses were available to testify live and, in fact, testified live on the defense case. The plaintiff initially indicated in the Joint Pretrial Statement that the deposition testimony would only be offered if the witness were "not available for live testimony,” JPTS, Annex A at 3-5, ECF No. 438-1, but then designated significant portions of the'depositions to use instead of the live testimony. The defendants objected to the plaintiffs designation óf these witnesses’ depositions, since the plaintiff had made no showing of the witnesses' unavailаbility. JPTS, Annex E, generally, ECF No. 438-5. Nevertheless, the Court permitted the plaintiff to present these witnesses’ deposition testimony, see Fed. R. Civ. P. 32(a)(1) and (a) (2); Fed. R. Evid. 611(a), 803(d)(2), despite the fact that this litigation strategy prolonged the trial by necessitating the presentation of these witnesses twice to the juiy — first, on the plaintiff’s case, by deposition, and then again on the defense case, by live testimony — and despite the well-recognized fact that live testimony is usually preferable to the tediousness of presentation of lengthy depositions.
. These witnesses were William C. Hittinger, the plaintiff’s friend and member of the REI Board of Directors, who testified via pretrial deposition, and Frank Bray, the vice president and manager of Postal Programs at REI, who testified live.
. Over the defendants’ objection, the plain.tiff’s motion to take the de bene esse deposition of Peter Voss shortly before trial was granted. Minute Order, June 6, 2015.
. These witnesses were Paul Carlin, former Postmaster General; James Jellison, former Senior Assistant Postmaster General; Charles R. Clauson, former Chief Postal Inspector; ‘ and John R. McKean, former Chairman of the BOG, all of whom testified via pretrial deposition.
. Charles Leeper, former Deputy Chief of Special Prosecutions at the DC USAO, testified live.
. At the time of her video-taped deposition, Ms. Goldberg was retired but under contract with the Départment' of Justice to provide testimony in this matter.
. As discussed more fully, infra, in Part III. D., the witnesses proffered by the plaintiff as his damages experts were Dap Cruse, who has worked as an executive recruiter, and two economists, Dr. Charles Betsey and Dr. Philip Fanara.
. The two- former DC USAO supervisors called to testify in the defense case were H. Marshall Jarrett, former Chief of the Criminal Division, and Paul L. Knight, former Chief of Special Prosecutions.
. The-defendants’, damages expert was Dr. Jerald Udinsky, a financial and rehabilitation economist.-
. The FTCA requires as a jurisdictional predicate that the plaintiff exhaust his administrative remedies.
See
28 U.S.C. § 2675(a);
McNeil,
. CPI Clauson recalls that this was the first CIC meeting attended by Ms. Strange. 7/10/14 AM Tr. at 101 (Clauson testimony).
. As noted, supra, at n. 5, the plaintiff originally named Postal Inspector Harrington as a defendant in the Bivens action,, but he -was subsequently dismissed after his death.
.' The ZIP + 4 Report to Congress describes the "quickly assembled” task force as consisting of "Regional- Chief Inspector Joseph M. Kelly, along with Inspector Edwards and Inspector Bruce Chambers.” Pl.’s Ex. 229 at 294. In addition to DPMG Strange, the inspectors interviewed H. Currie Boswell, another USPS manager, who corroborated information about ■ pressure applied by Vice Chairman Voss to award a sole source contract to REI and who “advised the inspectors that Governor Voss had made comments to others that their careers in postal manage
. The plaintiff's perspective that USPS management, including most prominently, James
. Sharon Peterson, Vice Chairman Voss’ administrative assistant, reported to the Postal Inspectors during the course of the criminal investigation that Peter Voss only became an advocate on the MLOCR issue after he made a kickback arrangement with GAI and had targeted REI as a potential source of the bribery funds. PL’s Ex. 535 at 4 (Sharon Peterson Interview Summary presented to the grand jury on September 19, Í986 ("Peterson G.J. Interview Summary”), stating "Peter Voss targeted [REI] as a client of GAI,” sometime after he arranged with John Gnau to receive a- 30% share of all fees Gnau received as result of clients referred by Voss); id. at 11 ("Peter Voss’ targeting of REI as a potential client of GAI preceded Voss’ active advocacy of multi-line as later demonstrated when he directed management to make a sole source award to REL”).
. The facts are murky about how this meeting was arranged. Mr. Voss testified that Mr. Reedy called him to invite him to dinner, PL’s Ex. 160 at 4 (Memorandum of Interview of Peter Voss, dated May 9, 1986); PL’s Ex. 214 at 14 (Tr. of Peter Voss Grand Jury testimony, dated Aug. 28, 1986) ("Tr. Voss G.J. testimony”)), while Frank Bray testified that Vice Chairman Voss initiated the contact with REI and the dinner meeting, PL’s Ex. 262 at 35 (Tr. of Frank Bray Grand Jury testimony, • dated July 16, 1987' ("Tr. Bray G.J. testimony”), stating that the dinner meeting in September 1984 was arranged when "Voss had telephoned Reedy at Reedy’s residence to schedule the meeting).
. While Postal Inspector Edwards was the first Postal Inspector assigned to the investigation, 7/15/14 PM Tr. at 79 (Edwards testimony), Postal Inspector Hartman was assigned to assist in the investigation in October . 1985. Id. at 91-92; Edwards Dep. at 26, Feb. 15, 2000. A month later, when the investigation expanded to focus on the plaintiff, Mr. Reedy, and REI, Messrs. Kormann and McIntosh were assigned to the investigation. Edwards Dep. at 26-27, Feb. 15, 2000. The parties agree that the only role Mr. Robbins played in the investigation was administering a polygraph examination to William Spartin in December of 1986.
. The Postal Inspectors summarized the November 20, 1985 interview with the plaintiff and his subordinates at REI in a memorandum, which reports that the plaintiff indicated attending meetings with USPS BOG's Technology Committee on three occasions, prior to the November 4, 1985 meeting: in March 1985 at USPS headquarters; in April 1985 at REI Headquarters; and in, May 1985 at REI Headquarters. Pl.’s Ex. 105 at 3. The memorandum then reports: "Mr. Moore stated that Bray, Reedy and himself were all present at meetings with USPS Board of Governors, with the exception when one of them stepped in and out during the course of the meeting. Mr. Reedy added that they [REI's Bray, Reedy and Moore] never talked to individual Board members, but rather they spoke to Technology Committee members as a group [the. Technology Committee]. Messrs. Moore and Bray nodded affirmatively to Mr. Reedy’s statement. . Mr. Moore.related that it was clear to Messrs. Voss and Camp and Ms. Peters that REI had a working product and that these meetings resulted in REI’s May 1985 proposal to the USPS.” Id. (emphasis in original).
. When Midge Gnau was subsequently interviewed by the Postal Inspectors, she confirmed her conversation with Postal Inspector David Smith on an AMTRAK train from New York City to Philadelphia and that she had been told by both William Spartin and her father, John Gnau, prior to December 13, 1985, "that Carlin would be fired.” Defs.' Ex. 73 at 2 (Memorandum of Interview of Midge Gnau,'dated May 28; 1986).
. The first of multiple grand jury subpoenas to REI was issued on April 17, 1986,’ and requested production of, inter alia, personnel, employment,' travel and telephone records for the plaintiff and Messrs, Reedy and Bray, as well as records related to REI’s relationship with GAI and GAI’s employees, including records and invoices with or regarding USPS management' and BOG and U.S. Congressmen. Defs.’ Ex. 68 (G.J. Subpoena tó REI, dated April 17, 1986).
. The n,on-prosecution and cooperation agreement contained standard terms that obliged the witness to cooperate with the United States in exchange for immunity from prosecution for his conduct in relation to the illegal conspiracy. See Pl.’s Ex. 269 at 4-5 (Tr. of William Spartin Grand Jury testimony, dated September 1, 1987) ("Tr. Spartin G.J. testimony”).
. Due to the number of people involved in, and duration of, the conduct under investiga- " tion, the Postal Inspectors interviewed some witnesses multiple times to gamer, confirm and re-check details. See 7/10/2014 PM Tr. at 113 (Hartman testimony). Postal Inspector Hartman testified that "it was very typical to interview an individual in a case like this more than once.” Id. .
. The plaintiff corroborates Mr. Spartin’s testimony to a certain extent about his conversations with GAI to get things done within high levels of the USPS. The plaintiff testified that GAI was "always trying to show us that they were wired in, if you will, that they really knew what was going on,” but that he "discounted that entirely.” 6/25/14 PM Tr. at 161. The plaintiffs actions, however, belie his testimony that he deemed GAI’s promises to be mere puffery. His actions reflect that he monitored Mr. Reedy's progress in retaining GAI, agreed to retain GAI, increased that retainer to $22,000 per month along with a promise to pay GAI one-percent of any USPS contract awarded to REI — far more than the amounts paid to what the plaintiff himself described as a "prestigious” consulting firm— and that he kept close tabs on GAI’s efforts to obtain for' REI the award of a USPS sole source contract. The Court finds the. plaintiff’s testimony about not believing GAI was "wired in” not credible.
. Postal Inspector Hartman testified that he was not in attendance during the interview of Mr. Bray and Mr. Reedy on April 8, 1986 but was advised of statements made at the interview. Id. at 97-98.
. When the automation program was restarted, the cost required to retrofit the SLOCR machines ' had increased from $46,500,000 to $150,000,000, resulting in an increased cost of about $100,000,000 to the government attributable in large part to the illegal conspiracy. PL’s Ex. 291 at 108 (Details of Offense).
. Messrs. Voss, Spartin and Gnau tell variations of this story about the plaintiff’s role in Mr. Spartin’s efforts to cover-up his conflict of interest in working for GAI, a consultant to REI, at the same time he was hired by USPS to search for and recruit a new PMG. After Mr. Spartin’s conflict of interest in the recruitment of Albert Casey became a subject of investigation, Mr. Spartin tried to distánce himself from GAI and REI by back-dating a letter of resignation as well as lying to Postal Inspectors that his own independent research led to Casey’s name. Pl.’s Ex. 137 at 27 (Spar-tin G.J. Interview Summary);
United States v. Recognition Equipment Inc. et al.,
Criminal Action No. 88-0385 ("Crim. Trial Tr.”) at 2620 (Spartin testimony, dated October 23-25, 1989). Mr. Spartin stated that he reached out to Mr. Reedy "to discuss who it is who referred who to Casey" and "Reedy said well you, you talked to Bill Moore, ..it's on' the record.” PL’s Ex. 226 at 29 (Spartin Polygraph Tr.). Then Mr. Spartin spoke to the plaintiff, who said "look, ... I gave you Casey’s name. He said ah, I got the call from John [Gnau], and you called me and I gave you three names and one of them was Casey, and I said that’s' fine, we’ll let the record stand right there. And that’s the only conversation I had with REI. • Nothing else.”
Id.
Mr. Spartin’s testimony before the grand jury and at the criminal trial differed and indicated that the plaintiff had agreed to cover-up GAI’s connection to the recruitment of Albert Casey. Pl.’s Ex. 137 at 27 (Spartin G.J. Interview Summary, stating "Spartin telephoned and talked with Moore and Moore indicated he would say what Spartin wanted him to say,” which was "that he (Moore) called Spartin on his own initiative and volunteered some names”). Vice Chairman Voss gives another version of this “cover-up,” stating that, in March 1986, after John McKean learned of Mr. Spartin’s "apparent conflict of interest” as President of GAI, which represented REI, Vice Chairman Voss contacted Mr. Spartin, "who told - him that he would contact [REI] President William Moore to dis
. This opinion expressed by Mr. Spartin is targeted for special attention by the plaintiff, who claims the opinion was predicated on improper use grand jury material. Specifically, AUSA Valder allowed Mr. Spartin and his counsel to review four interview summaries of other witnesses to refresh Mr. Spartin’s recollection of events. The propriety of this use of the four interview summaries is discussed in detail, infra, in Part IV A.
. The plaintiff has repeatedly claimed during this prolonged litigation that government agents manipulated the grand jury process by not allowing Mr. Bray to provide certain exculpatory testimony in the grand jury.
See, e.g., Moore I,
Mr. Bray and his counsel also requested that AUSA Valder elicit testimony before the grand jury that Mr. Bray did not believe that the plaintiff or Mr. Reedy knew about the kickback scheme, but this was not done. 7/7/14 AM Tr. at 90 (Hartman testimony). AUSA Valder recalls that he did not believe it to be appropriate for the witness to offer an opinion about what others thought. 7/16/14 PM Tr. at 80 (“There was opinion in here, there were competency problems in here. And I did not, I agree with the inspectors that it was improper”). In any event, examination of Mr. Bray’s testimony before the grand jury reveals that he made efforts to exculpate himself, REI, the plaintiff and Mr. Reedy. He certainly did not admit, as he did during the instant trial, that he had lied to the Postal Inspectors during interviews with the Postal Inspectors, in November 1985. In addition to the exculpatory statement noted in the text, Bray provided further exculpatory-testimony, including that; (1) "[he] did not know of any contact from Mr. Voss to anyone at REI” regarding finalizing a consulting contract with GAI, PL’s Ex. 262 at 13; (2) Mr. Bray was involved in the preparation of the original and subsequent consulting' contracts with GAI,
id.
at 37, 67, and “felt like [Marcus] was good and that Gnau & Associates from that standpoint were earning their money,”
id.
at 91; (3) REI did not put any controls on GAI’s communications with USPS because “we felt like that certainly Mike Marcus understood the issues, understood REI’s ... strategy, REI’s position, REI’s product, and knew how to present it ... he grasped the issues very quickly,”
id.
at 52-53; (4) the plaintiff "offered to work together with AEG on a conversion Idt contract,” but Mr. Bray “could not recall Mr. Moore stating that he would attempt to kill the retrofit phase of the multiline procurement” or mentioning his political influence with Vice President Bush and congressmen,
id.
at 72; (5) he denied seeing any competitors' presentations to BOG that were obtained by Mr. Marcus or other REI employees,
id.
at 77, or other internal USPS or BOG documents,
id.
at 110, and even if ECA’s proposal to BOG had been disclosed to REI, "I don’t know-if there would've been anything in that proposal that was beneficial to REI or
. Notwithstanding the undisputed evidence that the then-ILS. Attorney made the final decision to indict, the plaintiff persists in arguing that the Postal Inspectors procured the plaintiff's indictment by "aggressively lobb[ying]” the U.S. Attorney's Office to "approve the prosecution” of the plaintiff, Reedy, and REI. PL’s COL at 29 n. 8). In particular, the plaintiff cites two letters that CPI Clauson sent to then-U.S. Attorney Stevens "urg[ing] a timely decision relative to the prosecution of Recognition Equipment, Inc., William G. Moore and Robert Reedy.” PL’s Ex. 309 at 1 (Letter, dated May 13, 1988, from Clauson to Stevens); id. at 2 (Letter, dated July 27, 1988, from Clauson to Stevens) (same). These letters avoid discussion of the proposed defendants “guilt or innocence, but rather [] discuss the effect of delaying the decision on the Inspection Service’s ability to effectively protect Postal Service assets and to maintain the integrity of various postal systems.” PL’s Ex. 309 at 1 (Letter from Clauson to Stevens, dated May 13, 1988). Specifically, as a result of the investigation, the Postal Service had suspended its procurement process for approximately six months, which cost the Postal Service "valuable time and countless millions of dollars in lost savings.” Id CPI Clauson confirmed in his testimony at trial that USPS sought a decision on the indictment essentially so that the USPS could move on. See 7/10/14 AM Tr. at 126-27 (Clauson testifying that: "[T]his case went on for a long time once the initial defendants were disposed of. During that time the postal service would not proceed with the procurement action and ... the time that passed became ... a very expensive burden for the postal service. So there came a time that we pressured for a decision on this case with increasing intensity.”).
. The indictment charged the plaintiff with seven counts, including conspiracy, theft of property used by the postal service, mail fraud, wire fraud, and receipt of stolen property. PL’s Ex. 326 (Indictment).
. Defense counsel also complained to OPR about "whether the reviewing authorities were aware of the fact that Spartin was allowed to review the Grand Jury statements of four other coconspirators.” Pl.'s Ex. 385 at 2. OPR rejected this complaint stating that "we will advise the Executive Office of our decision that AUSA Valder was not deficient in his compliance with the court's discovery order.” Défs.’ Ex. 88 at 2 (Letter, dated August 1, 1991, from OPR to U.S. Attorney Jay B. Stephens).
. As support for his claim of emotional damages, the plaintiff presented testimony that he went to the emergency room for an acute
. This estimate was based, in part, on the plaintiffs testimony that during the approximately six years that the plaintiff served as REI’s CEO, his salary rose from $204,211 to $2,301,018, including both his annual salary and bonus,, and he anticipated further salary increases and career advances. 6/24/2014 PM Tr. at 30-31, 98 (Plaintiff testimony); see PL’s. Ex. 430A at WM 076609, 075615 (tax returns). According to the plaintiff, but for the indictment, Ke would not have been terminated as CEO and REI would not have been acquired by another company. 6/25/2014 PM Tr. at 24.
. Dr. Fanara used the Black-Scholes Model, which is a generally accepted formula for calculating the value of a stock option.
In re Fed. Nat’l Mortgage Ass’n Sec., Derivative, & ERISA Litig.,
. Dr. Udinsky explained that this area of expertise involves analysis of "how a person moves between jobs. If you lose your job for some reason, I have developed an expertise in how you locate additional employment, the types of earnings you could anticipate, how long it takes you to become reemployed, and any economic loss that you may experience .while you are finding new employment.” 7/16/14 AM Tr. at 99.
.Dr. Udinsky determined that, if the plaintiff did suffer economic damages as a result of the indictment, those damages would cease to accrue after, a two-year job search, or when he. obtained comparable employment, and would amount to only $377, 644. 7/16/14 AM Tr. 127-32.
. The parties do not dispute that these are the requisite elements of a malicious prosecu
. Earlier in this litigation, the plaintiff also alleged that the Postal Inspectors violated grand jury secrecy by disclosing to former PMG Carlin a copy of the draft indictment before final consideration by the grand jury. '
See, e.g„ Moore II,
. Due to their skepticism about whether Mr. Spartin’s lack of recollection was truthful, the investigating agents tested his veracity by arranging for Mr. Spartin to be polygraphed by Postal Inspector Norman Robbins on December 5, 1986. Pl.’s Ex. 226 (Spartin’s Polygraph Tr.); Valder Dep. at 397, Mar. 1, 2000. This polygraph examination showed no deception. Robbins Dep. at 71, April 25, 2000 (Q: As a result of the examination that you did for Mr. Spartin, you in fact determined that the information he was conveying was truthful; correct? A; Yes, The information that — my opinion was that the questions that I asked him, the relevant questions, he was truthful on those questions.).
. The fifth document is an undated, untitled, four-page partial transcription of a conversation with a person, identified by AUSA Valder as Tom Minor, "pertaining to an event that Spartin had previously been involved in.” Valder Dep. at 377, Mar. 1, 2000. The plaintiff raises no issue about this .document, which bears no markings indicating that it presented to the grand jury.
. The five documents, including'the four interview summaries at issue, disclosed to Mr. Spartin were introduced at the plaintiffs criminal trial as Government Exhibit 707.
. Despite these clear statements from Mr. Spartin, under oath, that ho one told him, and he did not otherwise know, 'about the four interview. summaries being presented to grand jury, the plaintiff seizes on references made by Mr. Spartin during his polygraph ' interview to "testimony” and "transcripts” from other witnesses, Pl.’s Ex. 226 at 236, 238, 240 (Spartin Polygraph Tr.), as evidence that Mr. Spartin knew that the interview summaries he was permitted to review were presented to the grand jury. Pl.’s COL at 36. ■ That inference is belied by Mr. Spartin’s testimony under oath at the criminal trial, which is cited in thе text. See Crim Tr. at 2610, 2012; see also Valder Dep. at 381, Mar.'1, 2000 ("Mr. Spartin testified to Judge Revercomb under oath that when he as given those respective items that, he may have used the word testimony, but that he did not understand at the time that those items had been before the grand jury. And I think you will find that Spartin said that clearly.”). Significantly, a witness's speculation or assumption about what another person might — or even likely — have said to a grand jury is simply not sufficient to amount to an actual disclosure of grand jury material.
. The plaintiff has 'posited that presentation of grand jury testimony through use of interview summaries is unusual and even unethical. ' 6/24/14 AM Tr. 41-42 (PL's Opening Statement); 7/17/14 AM Tr. at 72-73 (plaintiff's counsel questioning of Valder). AUSA Valder disputed this position and noted that this was a.practice sanctioned by his supervisors and used with some regularity at the DC ÜSAO, since the practice had a number of benefits, including ensuring efficient, thorough and accurate presentation of testimony , to the grand jury and allowing defense counsel, who are not permitted in the grand jury room during the presentation of evidence, to be able to review their clients' written testimony. 7/16/14 PM Tr. at 73 (Valder testimony). AUSA Valder’s testimony was corroborated, as well as disputed, by other witnesses from the DC USAO. 7/17/14 AM Tr. at 148-149 (Knight testimony, stating that use of summary statements was a “common tactic”); 7/2/14 AM Tr. 25-27 (Leeper testimony, stating that he was not familiar with the proce
. REI’s employee, Frank Bray, testified before the grand jury on-July 16, 1987, pursuant to a grand jury subpoena. Valder Dep. at 369, Mar. 1, 2000. The presentation of his interview summary did not follow the sqme procedure used for Messrs. Gnau, Marcus and Voss, and Ms. Peterson. Instead, AUSA Valder specifically requested that the court reporter transcribe the sunimary as it was read and, while it was being read, AUSA Valder stopped at various points to ask Mr. Bray questions. Id. at 359. The interview summary of Mr. Bray was not among the four summaries disclosed to Mr. Spartin and, therefore, the plaintiff has not put that summary at issue as part of the alleged violation of Rule 6(e).
. The government argues that even if disclosure of the interview summaries to Mr. Spar-tin constituted a violation of Rule 6(e), this conduct was conceived, directed and executed by AUSA Valder and should not be imputed to the Postal Inspector defendants. See Def.’s COLs at 5 ("regardless of whether any of the materials shown to Spartin were covered by Rule 6(e) ... Moore failed ‘to prove that it was the postal inspectors who provided any of the disputed materials to Spartin”). Whether the Postal Inspectors were sufficiently involved in the review, redaction and subsequent disclosure of the interview summaries to Mr. Spartin to support legal liability for a Rule 6(e) violation need not be resolved since, as discussed in Part III.A.l.(b), the interview summaries are not protected by grand jury secrecy.
. In the 2010 Decision, the court denied the defendants’ renewed motion for summary judgment, quoting the D.C. Circuit summary “of the evidence proffered by the plaintiff” that "the postal inspectors improperly showed GAI Officer Spartin other witnesses' grand jury statements.”
2010 Decision,
. The plaintiff relies bn two cases from other circuits as support for his position that witness summaries prepared for the purpose of presentation to the grand jury are subject to Rule 6(e), but these cases are easily distinguishable. ‘ First, the Third Circuit in
In re Grand Jury Matter,
. The plaintiff argues that "a reasonable observer would have understood that the documents reflected the witnesses-’ testimony be- - fore the grand jury” and Mr. Spartin "clqarly understood as much,” Pl.’s COLs at 35. In other words, the plaintiff asks the Court to find that Mr. Spartin must have known of the government’s use of the interview summaries before the grand jury, even though he simpl- . taneously contends that such use of the interview summaries as grand juty testimony was both unusual and unethical. Id. He cannot have this both ways. If using interview summaries as grand jury testimony was so unusual, he does not explain why Mr. Spartin and his counsel should have been aware that the government used the summaries- in this manner. In any event, ■ the evidence at this trial, carrying forward from the plaintiff’s own criminal trial, indicated that, contrary to the suggestion the plaintiff has asserted the past 24 years in this litigation; Mr. Spartin did not know that the interview summaries had been presented to the grand jury, even though the first page of the interview summary of, Mr. Voss provided to Mr. Spartin was marked with AUSA Valder’s handwritten notation "GJX#4.” Mr.- Spartin testified at the criminal trial that he did’not notice the mark nor was he was unaware that the statements provided to him had been presented to the grand jury. See Crim. Trial Tr. at 2610-13, 2737-38, 2754.
. Even Mr. Spartin concluded, based on his review of the four interview sümmaries, that - “I’m not á lawyer but Jesus, there’s enough there to seem to me to hang REI from the yardarm.” PL’s Ex. 226 at 28 (Spartin Polygraph Tr.).
. Lack of probable cause is an element of the both the plaintiff's Bivens claim for retaliatory inducement to prosecution and FTCA claim for malicious prosecution.
See Hartman v. Moore,
. In support of this assertion, the plaintiff points to co-conspirator testimony from Messrs. Voss, Spartin, Gnau, and Marcus and Ms. Peterson, and also testimony from Mr. Bray. See Voss Dep. at 40-41,' 52, Jun. 12, 2014 (indicating that Voss did not tell the plaintiff about the Conspiracy); Pl.’s Ex. 226 at Bates 00244 (Spartin Polygraph Tr., Spar-tin stating " I don’t give a hoot and hell about Bill Moore” and "I wish I could give them REI,” but that "I’m not gonna lie.”); 7/7/14 AM Tr. at 49 (Hartman testimony) (indicating that Gnau told Postal Inspectors that he did not tell the plaintiff about the scheme); Kormann Dep; at 134, 2/17/2000, ECF 489 (stating that Marcus never told the Postal Inspectors that he or anyone else told REI about the illegal payments); id. at 136 (Kormann stating that Peterson never told Postal Inspectors that she told the plaintiff of the conspiracy); 6/30/14 PM Tr. at 26-27, 32-33 (Bray testifying that prior to Voss’ guilty plea, .neither he nor the plaintiff hád any knowledge of the conspiracy).
. Based upon a summаry of a portion of this evidence, supervisory AUSAs within the DC USAO commented that "none of tire evidence shows direct knowledge by Moore of the payments to Voss through GAI,” but that "in light of Moore’s close association with Reedy — from which one can infer that Moore knew of at least, some of Reedy’s conversations with Gnau — -it proves no more than that Moore probably knew of the payments to Voss.” PL’s Ex. 10 at 6 (Mem., dated June 1, 1988, to DC USA Jay B. Stephens from Paul K. Knight and Charles S. Leeper) (emphasis in original). . While the focus of this memorandum was on the likelihood of success under the- standard of proof required at trial, notably, the assessment of what the evidence "probably” showed is closer to the standard applied by. the grand jury.
. Postal Inspector McIntosh also, testified . about his view of the plaintiff's role in .the charged conspiracy, stating, in response to the question of "why was Mr. Moore investigated?” that "I think the short answer is that it was his consultants that had gone to jail, and it was — it seemed to be apparent that but for the money that REI had been paying their consultants, that there would have been no conspiracy." 7/16/2014 AM Tr. at 43.
. In the plaintiff's view, he presented at trial "ample direct evidence corroborating the conclusion that the Postal Inspectors acted with malice,” Pl.’s COL at 23, based on: (1) "the strength of the direct evidence of Moore’s innocence,” id. at 22; (2) the extent to which the Postal Inspectors relied "on slanted and unreasonable views of the circumstantial evidence to make a case against Moore,” id. at 23; and (3) "the extent to which the inspectors engaged in improper investigative actions,” id. All three of these bases for proving malice also serve as the underpinnings of the plaintiff's argument that probable cause for his indictment was lacking and, as such, are discussed — and rejected — , supra, in Part IV. B.p For the same reasons that the plaintiff's interpretation of the evidence is insufficient to show no probable cause, his view of the evidence is insufficient to support an inference of malice.
.The plaintiff also cites Postal Inspector McIntosh’s communications and delivery of five documents to former PMG Carlin as "clear and dramatic evidence that these agents were acting with malice and were willing to break the rules to help Carlin go after REI and Moore.” Pl.’s COL at 27. This factual allegation has been expressly repeated by the D.C. Circuit,
see Moore II,
. The plaintiff was also "somewhat offended” when he was told by PMG Bolger that ■ Mr. Jellison referred to REI as a "pip-squeak company.” 6/24/2014 AM Tr. at 120-21. Mr. . Jellison denied making this or any other derogatory comment about REI or saying that REI would never obtain a USPS contract. 7/1/2014 PM Tr. at 19 (Jellison Dep. testimony) ("J would never say that to anybody.- No, I don’t recall that.”). The plaintiff has tried to paint Mr. Jellison as "a staunch ZIP+ 4 single-line advocate,” who was against REI and MLOCR technology but the picture presented at trial was far different. To the contrary, Mr. Jellison expressed support for an eventual transition to MLOCR technology generally but, in the early through mid-1980’s, did not believe that this technology could be, effectively used, as it required a national directory that did not exist. 7/1/14 PM Tr. at 86 ("So as long as there was a database restriction, we did not want to go to the multi-line read. The multi-line read became available to us when you could get that national directory up.”);
id.
at 64-65 ("From the start, we felt like if we could ever get a national database, multi-line was the way we wanted to go ... I will say this again: I ¡have never been opposed to a company or a|Con
. Multiple senior managers within USPS recognized the unusual and suspicious nature of Vice Chairman Voss’ actions on behalf of REI, as did the investigators within the U.S. Postal Inspection Service. Yet, the plaintiff, if he is believed to be completely innocent of participation in this illegal conspiracy, did not notice anything unusual about the second highest ranking member of USPS BOG aggressively pushing a sole source contract for up to $400,000,000 to purchase equipment that technology experts within USPS believed had operational issues.
. Although the plaintiff describes these denials as given "glibly,” Pl.'s COL at 23, the Court finds that the defendant Postal Inspectors testified in a highly credible manner about their motivations, as did their superiors. See 7/10/14 AM Tr. at 126-29, 172 (Clauson testimony); 7/8/14 AM Tr. at 112 (Carlin testimony).
. The referenced Executive Order 11222 was originally issued in 1965 and prescribes “standards of ethical conduct for Government officers and employees.” 30 Fed. Reg. 6469.
: Among the myriad of pretrial motions filed by the' parties, the plaintiff moved for an order to, be entered before the trial began setting forth procedures that would allow him tо elect his remedy and avoid triggering the FTCA’s judgment bar by postponing entry of judgment on his FTCA claim until after any appeal by the defendants on the Bivens claim, presuming he prevailed on this claim. Pl.’s Mot. For Order Governing Application of FTCA Judgment Bar, at 15, ECF No. 437 ("the Court should hold the FTCA claim in abeyance while the postal inspectors pursue their appeal. Once that appeal is resolved, the Court should give Moore the opportunity to make ap election between, on the one hand, recovering on his final Bivens judgment and relinquishing his FTCA claim, and, on the other hand, seeking entry of judgment on his FTCA claim.”). The Court denied this motion without prejudice. Minute Order (June 17, 2014). After return of the jury verdict against him, the plaintiff filed a notice, in response to the Court query, 7/21/2014 Tr. at 20, ECF No. 537, that he was not renewing his prior motion for an order governing application of the FTCA judgment bar and, instead, was reserving his right to withdraw his FTCA claim in connection with further proceeding on his Bivens claim. Pl.’s Notice, ECF No. 509.
. The parties have not briefed or otherwise addressed this issue.
. The plaintiff also contests the jury verdict in favor of the defendants as “against the great weight of the evidence,” Pl.’s Mem. at 32. In'support of its verdict, the jury made the specific findings that the plaintiff had not proven, by a preponderance of the evidence, that (1) any defendant "acted, at least in part, with a purpose to retaliate against or deter the plaintiff's exercise of his First Amendment rights,” Verdict Form ¶ 1, ECF No. 506; (2) any defendant "induced the bringing of criminal charges in an indictment against the plaintiff,”
id.
at ¶2; (3) "that the plaintiff would
not
have been charged in an indictment without the inducement of ” each named defendant,
id.
at ¶ 3; and (4) "there was no probable cause to bring criminal charges in an indictment against the plaintiff,” with the jury finding affirmatively that "THERE WAS PROBABLE CAUSE,”
id.
at 114 (capitalization in original). The plaintiff’s challenge to each of these jury findings faces an uphill battle since courts "will not overturn a jury verdict 'unless the evidence and all reasonable inferences .that can be drawn therefrom are so one-sided that reasonable men and women could not disagree.’ ”
Williams v. Johnson,
The plaintiff plainly does not meet this high bar for setting aside the jury’s verdict. The plaintiff presented the evidence for his Bivens and FTCA claims simultaneously, as both claims arise from the same facts, and the findings of fact set out, supra, in Part III, demonstrate that the jury reached the proper conclusions regarding the existence of probable cause to prosecute the plaintiff and the
. Indeed, by the terms of 28 U.S.C. § 1870, the Court could have permitted the defendants to exercise a total of fifteen peremptory challenges while permitting the plaintiff only three.
. The Second Circuit decision arose in the context of the defendants with the aligned interests challenging the trial court’s decision not to grant three peremptory challenges to each but instead to allow only one peremptory challenge each and three peremptory challenges jointly.
Doralee Estates, Inc. v. Cities Serv. Oil Co.,
. The plaintiff also appears to object to the defendants asking a different expert witness,
Q: Now, the plaintiff — that’s the one who’s asking something from the defendant, correct?
Q: And in this case, the plaintiff, Mr. Moore, is asking for money, right?
A: I think in this case that's one of the things .... ”
6/27/14 AM Tr. at 43. To the extent the plaintiff is challenging this exchange, the plaintiff’s challenge fails for the same reasons discussed above.
. Neither the tone nor the demeanor of defense counsel in making these statements suggested to the jury anything other than the simple and legally accurate fact that the defendants were being sued individually.
. The joint statement of the case, which both sides agreed on, and which this Court read to prospective jurors and to the jury in the preliminary instructions, indicated that: “The plaintiff, William G. Moore, Jr., has brought this action against five defendants individually who were U.S. Postal Inspectors ... [t]he defendants are Michael Hartman, Frank Kormann, Robert Edwards, Pierce McIntosh, and Norman Robbins ____” 6/23/14 Tr. at 252 (emphasis added).
. The witness clarified that the Dallas Country Club has subsequently amended its admissions practices. Id. at 28.
. Several days earlier i when defense counsel first asked the plaintiff whether he was a member of the Dallas Country Club, the plaintiff objected on relevance grounds, not unfair
. Even if the instruction should have been provided, the failure to do so amounts to harmless error as it does not impact the plaintiff's substantial rights, as the defendants note. See Defs.' Opp’n at 12-13. The plaintiff provides no basis for determining how the jury could have misused the admitted hearsay evidence given that the instant case did not require a retrial of the plaintiff's original criminal prosecution, only whether the -defendants acted improperly in pursuing the criminal charges. Thus, the only possible use by the jury of the challenged evidence was the proper non-hearsay use: whether the defendants lacked probable cause and harbored a retaliatory intent.
, The plaintiff cites examples of such cases concerning independent conspiracy claims.
See
Pl.'s Mem. at 9 n.2 (citing
Great
W.
Mining,
. The plaintiff cites cases addressing whether private parties should be treated as government officials. See PL’s Mem. at 9 n.2 (citing
Great W. Mining,
. The plaintiff suggests that the ’Court, without any motion to amend the pleading, should have permitted the plaintiff to amend his complaint to add a new theory of liability, on the eve оf trial, after over .twenty years of litigation and- multiple .trips to the D.C. Circuit and the Supreme Court. See PL’s Mem. at 9-10 n.3. Although leave to amend should be - given freely, the plaintiff's suggestion stretches this liberal standard beyond the breaking point.
. In any event, even if such an instruction were appropriate, the refusal to provide the instruction was harmless. As the government notes, the jury did not find that any of the defendants harbored a retaliatory intent. Accordingly, none of the defendants committed an otherwise unlawful conduct.
See Martin v. D.C. Metro. Police Dep’t.
. The probable cause instruction provided to the jury by the Court stated, in relevant part:
To meet his burden on the third element of his claim — absence of probable cause — you must find that the Plaintiff has proven by a preponderance of the evidence that the criminal charges, contained in the indictment against him were not supported by probable cause. The indictment filed against the plaintiff charged him with the following crimes, for which he was either acquitted or which were withdrawn by the prosecutor at the plaintiff's criminal trial: conspiracy to defraud the United States, theft, receiving stolen property, mail fraud, and wirfe fraud----
Probable cause justifying the filing of criminal charges in an indictment exists so long as the facts and circumstances known to the prosecution at the time the charges were filed (together with the reasonable inferences from- those facts) supported a reasonable belief that an offense had been committed and that the plaintiff committed it. Reasonable belief is an objective standard and exists if a reasonable person, considering the totality of the evidence known at the time of an indictment, could reasonably believe that a crime may have been committed and that the plaintiff committed it. Only the probability of criminal activity, not an actual showing, is the standard of probable cause.
Although probable cause is determined by what was known to the prosecution at the time the charges were filed, the plaintiff may also show a lack of probable cause by showing that the defendants withheld material information from the prosecutor, that, as a result, the prosecutor did not have complete information when the charges were filed, and that if the prosecutor had had the complete information he would not have filed the charges.
The fact that the criminal charges were ultimately dismissed does not necessarily mean that the charges were not supported by probable cause at the time that the prosecution was initiated.
Jury Instructions at 8, ECF No. 500.
. See Pattern Criminal Jury Instructions for the District Courts of the First Circuit (1997), www.rid.uscourts.gov/menu/judges/ jurycharges/PJI.pdf; Third Circuit Model Civil Jury Instructions § 4.013 at 171-172 (2014), available at http;//www.ca3.uscourts. gov/model-jury-instructions; Fifth Circuit Civil Jury Instructions § 10.1 at 83-84 (2014), available at http://www.lb5.uscourts.gov/jury instructions/; Federal Civil Jury Instructions of the Seventh Circuit § 7.06 at 138 (2005 rev.), available at http://www.ca7.uscourts. gov/Pattem_Jury_Instr/pattern_jury_instr. html; Manual of Model Civil Jury Instructions for the District Courts of the Eighth Circuit § 4.40 at 53 (2014), available at http:// www.jutyinstructions.ca8.uscourts.gov/index.htm; Ninth Circuit Manual of Model Jury Instructions: Civil § 9.20 at 180 (2007), available at http://www3.ce9.uscourts.gov/juryinstructions/model-civil; Eleventh Circuit Civil Pattern Jury Instructions § 5.2 at 352 (2013), available at http://www.call.uscourts. gov/pattern-jury'-instructions.
. As noted by the defendants, any alleged error was harmless. See Defs.’ Opp’n at 15. In addition to finding that probable cause existed for the plaintiff’s indictment, the jury found that the defendants did not harbor a retaliatory intent and did not improperly induce the prosecution. Thus, even if the instruction infected the jury’s determination of probable cause, the defendants would still not be liable.
. Indeed, the Ninth' Circuit has accepted the plaintiff's view that "a showing of a ‘retáliatory motive on the part of an official urging prosecution combined with an absence of probable cause supporting the prosecutor’s decision’ will suffice to ... settle the causation issue.”
Beck v. City of Upland,
. The D.C. Circuit’s recent opinion in
Amobi v. D.C. Dep't of Corn,
. Put in the language of classical tort law, the prosecutor is an intervening cause in any retaliatory prosecution claim. Indeed, in the present case, the decision to prosecute was ultimately made by then-United States Attorney Jay Stephens. See 7/2/14 AM Tr. at 45, 66.
. The plaintiff has even suggested an alternative reason for the prosecution than retaliation by the Postal Inspectors by pointing to AUSA Valder’s lunchtime conversation with William Hittinger, in which AUSA Valder commented on the possible impact of the prosecution on his private practice career prospects. .
See 1993 Decision,
.The prosecutor was dismissed from this action prior to trial on the basis of prosecutorial immunity.
See Moore II,
. Moreover, as the defendants note, any error in the instruction was harmless as the plaintiff lost on every element of his Bivens claim, not just inducement. See Defs.' Opp’n at 21.
. Although the plaintiff criticizes the Court for asking questions during the plaintiff’s case, the Court also asked questions during the defendants’ presentation of their case. See, e.g„ 7/10/14 PM Tr. At 55, 88/ 90; 7/11/14 AM Tr. at 37-39; 7/14/14 PM Tr. at 35, 51, 68; 7/15/14 AM Tr. at 22, 43-44, 57, 67-68, 105; 7/16/14 PM Tr. at 53, 57-58, 71, 78-79, 101; 7/17/014 AM Tr. at 40-43. The plaintiff has made no objection to those questions.
. Finally, even if a curative instruction was unnecessary, any error was harmless. The plaintiff never objected to the phrasing of the curative instruction and the instruction matches the well-accepted admqnition that jurors should not base their decision-making upon emotion. Simply put, the plaintiff cannot be harmed by a curative instruction .that accurately reflects the law and that was not objected, to at trial. In fact, the jury received a subsequent instruction regarding the factors at issue when calculating punitive damages. The instruction stated, in relevant part, that:
If you find that the plaintiff is entitled to an award of punitive damages,.then you must decide the amount of the award. To determine the amount of the award you may consider the nature of the wrong committed, the state of mind of the defendants when the wrong was committed, the cost and duration of the litigation, and any attorney’s fees that the plaintiff has incurred in this case. Your award should be sufficient to punish the defendant for his conduct and to serve as an example to prevent others from acting: in a similar way.
Jury Instructions at 8, ECF No. 500. Thus, any prejudice accruing to the plaintiff was cured by the jury instruction that noted that the size of the punitive damages award (as opposed to the reason for. making the award) should be sufficient to "serve as an example." 'id. '