United States District Court, S.D. Indiana, Indianapolis Division
ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT
SARAH EVANS BARKER, District Judge.
This cause is now before the Court on Defendant's Motion for Summary Judgment [Docket No. 69], filed on August 27, 2014, pursuant to Federal Rule of Civil Procedure 56. Plaintiff Michael Alexander filed this lawsuit against Defendant, the United States of America, alleging several claims under the Federal Tort Claims Act. Following a motion to dismiss and a subsequent appeal, the only claims remaining before us are Mr. Alexander's claims for malicious prosecution and intentional infliction of emotional distress ("IIED"). For the reasons detailed in this entry, we GRANT Defendant's Motion for Summary Judgment.
Plaintiff Michael Alexander is a licensed attorney in the State of Indiana with a large part of his legal practice devoted to criminal defense work. On February 26, 2008, Alexander was arrested by Neal Freeman, an agent of the Indianapolis Division of the Federal Bureau of Investigation ("FBI"), and charged with conspiracy to commit bribery, a Class C Felony, in Delaware Circuit Court No. 3. Pl.'s Exh. A (Probable Cause Aff.). On March 13, 2009, following a jury trial in the Delaware Circuit Court, Cause Number 18C03-0802-FC-03, Alexander was acquitted on this charge.
Alleged Bribery in Randolph County Involving Rodney Dobbs Case
The chain of events that eventually resulted in Alexander's arrest began in March 2006, when the Indianapolis Division of the FBI opened an investigation into allegations of corruption and bribery in Randolph County, Indiana. At that time, information available to the FBI indicated that Jeffrey Dobbs, an individual arrested on child molestation charges in Randolph County, paid $24, 000 to a private investigator named Jeffrey Hinds based on Hinds's promise that he had friends in the Randolph County Prosecutor's Office who could make Dobb's case "go away" or send it to the "lost file." Freeman Decl. ¶ 4. Hinds was then a private investigator who worked for Alexander and other attorneys in Randolph County and Delaware County, among others. Hinds kept an office in the same suite as the Michael Alexander law firm, although Dobbs was being represented on the child molestation charges by another attorney.
In February 2006, Dobbs contacted the FBI regarding the alleged bribery. Id. Special Agent ("SA") Freeman was assigned to the case and led the investigation. SA James Howell assisted in certain aspects of the investigation until he retired from the FBI in September 2007. SA Howell was present for a number of witness interviews and undercover operations and acted as a witness to the interviews and consensual monitoring sessions conducted as part of the bribery investigation. In March 2006, for example, after receiving appropriate authorization from the FBI, SA Freeman monitored several phone calls between Rodney Dobbs, Jeffrey Hinds, and Dobbs's attorney at the time.
Alleged Bribery in Delaware County Involving Christopher Bryant Case
A few months passed without further pertinent developments in the investigation until SA Freeman was contacted in June 2006 by Joseph Orick, a Deputy Prosecutor in the Delaware County Prosecutor's Office. Orick provided a written statement and was also interviewed by SA Freeman. Orick told SA Freeman that he was contacted by a man named Stanley Chrisp who said that Hinds had offered to pay him and his son $20, 000 and other benefits to change their testimony in a criminal case involving an individual named Christopher Bryant, who was represented by Alexander. Bryant was charged with intimidation based on the allegations of Chrisp and his two sons, Stanley Wills and Adrian Kirtz, that Bryant had pointed a loaded gun at Wills and threatened to kill him in front of Chrisp and Kirtz.
According to Orick's statement to SA Freeman, Chrisp told him that Hinds had contacted him (Chrisp) and offered to pay him and his two sons to change their testimony in Bryant's criminal case. Chrisp stated that he and Kirtz had met with Hinds at the Michael Alexander law office and were told by Hinds that Alexander had received $20, 000 from Bryant and said that they could "all make money off of this case." Freeman Decl. ¶ 6. Chrisp further alleged that he saw Hinds give Kirtz $2, 500 after Kirtz provided a statement. Exh. 2 to Freeman Decl. (June 7, 2006 Orick Statement).
Bryant's arresting officer, Muncie Police Department Detective Nathan Sloan, sent SA Freeman a written statement dated June 15, 2006. In his statement, Detective Sloan represented that he had been contacted by Chrisp who had told him that someone from Alexander's law firm told him that Bryant's case would never see the inside of a courtroom since Chrisp was only 80% of his identification of Bryant. Chrisp told Detective Sloane that he and Wills had been contacted by Hinds and that Hinds wanted to arrange for Chrisp and Wills each to receive $5000 from Bryant in exchange for retracting their statements. Def.'s Exh. 2 (June 15, 2006 Sloan Statement).
After receiving these statements, SA Freeman conducted a monitored phone call between Orick and Chrisp during which Chrisp confirmed the story he had previously told Orick and Detective Sloan regarding the bribery allegations. Chrisp also stated that Alexander was present in his law office during certain of the conversations with Hinds when those matters were discussed.
On June 23, 2006, Detective Sloan interviewed Kirtz who provided a written statement in addition to a recorded interview. SA Freeman was provided with copies of both the written and taped statement and reviewed them during the investigation. During the interview, Kirtz described the incident with Bryant and confirmed that it was Bryant who had threatened Kirtz and his family and pointed a gun at them. Kirtz also stated that not long after the incident occurred, Bryant offered Wills $5, 000 to change his statement. According to Kirtz, Bryant told Wills, "all you have to do is go down there and talk to my attorney." Def.'s Exhs. 1 and 4 to Freeman Decl.
Kirtz further stated that several weeks after the incident occurred, he went to Hinds's office and Hinds asked him to give a statement regarding the Bryant incident in which Kirtz would represent that he was unsure whether it was Bryant who threatened his family. According to Kirtz's statement, Hinds then told him that "you can make money too" and offered him $20, 000 to give the statement. Id. Hinds also offered to obtain a reduced sentence for Kirtz or to have Kirtz taken off probation in another criminal case and to assist him with medical bills. Kirtz told Detective Sloan that he knew that Hinds was Alexander's private investigator and stated that Hinds kept calling Kirtz and Chrisp and telling them that if the criminal case went to trial, "Mick" [Alexander] would tell the jury about Kirtz's prior criminal record and reminding them that "Mick" is a "hell of a cross examiner." Id. Kirtz stated that Hinds promised him $5, 000 up front to come in and give a statement. Kirtz, Wills, and Chrisp eventually went to Hinds's office to make statements. According to Kirtz, he rehearsed his statement with Hinds who told him what to say and assured him that, "you're not really lying, you're just saying you aren't sure." Id. Kirtz said Hinds gave him only $2, 500 on that date, but later gave him additional money, totaling $6, 000.
During the interview, Detective Sloan asked Kirtz directly about Alexander's involvement in the scheme. Kirtz stated that Hinds was Alexander's investigator, that it was only the two of them (Hinds and Alexander) in the office, and that "nothing goes in the office without Mick knowing. Mick knows everything." Exh. 1 to Freeman Decl. Kirtz further stated that Hinds would tell him things that Alexander had conveyed to Hinds and that when he (Kirtz) went to review the statement he had given Hinds, it had highlighting and notes in the margin. According to Kirtz, Hinds told him, "Mick already went through this." Exhs. 1 and 4 to Freeman Decl.
After reviewing the above information, SA Freeman recommended that the FBI open an investigation as to Hinds and Alexander for potential charges under 18 U.S.C. § 666 for "[t]heft or bribery concerning programs receiving Federal funds." Freeman Decl. ¶ 12. SA Freeman's decision to initiate an investigation was approved by the FBI Special Agent in Charge and the Assistant Special Agent in Charge of the Indianapolis Division of the FBI. Id.
The FBI's Bribery Investigation of Hinds and Alexander
A. July 2006-December 2006
In July 2006, SA Freeman interviewed Chrisp, who conveyed the same information that he had shared with Orick. To wit, that he, Wills, and Kirtz agreed to change their statements or give false statements to Hinds about the Bryant incident in exchange for Hinds's offer of money and other benefits, including promises to contribute to Kirtz's medical bills and to help Kirtz get off probation in another criminal matter. According to Chrisp, Hinds assured him that there would be no consequence other than that Alexander would get the charges dropped against Bryant. Chrisp told SA Freeman that he and his sons provided revised statements to Hinds that were then given to the Delaware County Prosecutor's Office, which resulted in reduced charges against Bryant. Chrisp said that Hinds gave $2, 500 to Kirtz and later gave another $2, 500 to Wills. Chrisp also received $1, 000 from Hinds, for a total amount paid by Hinds of $6, 000 to the three men. They were not paid the remaining $14, 000 Hinds had promised, however, which was the reason Chrisp decide to report the incident to the Delaware County Prosecutor's Office, who in turn, reported it to the FBI. Id. ¶ 13.
Also in July 2006, SA Freeman interviewed Wills and Kirtz. Both men stated that Hinds had arranged for them to come to Alexander's law office to provide recorded statements, the substance of which, they said, was coached by Hinds. Wills and Kirtz confirmed that they had agreed to change their statements in exchange for $20, 000 and that Kirtz received $2, 500 from Hinds as an initial payment. Id. ¶ 14.
Around this same time, SA Freeman began conducting consensually-monitored telephone calls and meetings among Chrisp and Kirtz and Hinds and/or Alexander. Before using body recording devises on witnesses, SA Freeman received authority from FBI supervisors, including the Assistant Special Agent in Charge and the Chief, Division Counsel of the Indianapolis Division of the FBI.
The first date on which SA Freeman sought to record a conversation with Alexander was July 12, 2006. There is some dispute between the parties regarding whether any conversation actually took place on that date. According to Alexander, he had a conversation with Chrisp and Kirtz on July 12th during which they told him for the first time about the bribery scheme. In response, Alexander said he told them he did not know what they were talking about and that he would "check with Hinds." Although it is not clear from Kirtz's and Chrisp's trial testimony what date this conversation occurred, both men did testify at trial that they had a conversation with Alexander at some point in the summer of 2006 during which they discussed the bribery scheme of which Alexander denied any knowledge. Pl.'s Exh. G at 51-52, 54-56; Pl.'s Exh. H at 66-67. Chrisp and Kirtz further testified that they next informed SA Freeman of their conversation with Alexander. Pl.'s Exh. G at 56; Pl.'s Exh. H at 67. SA Freeman testified by deposition that while Chrisp and Kirtz were hooked up with electronic monitoring equipment on July 12, 2006 in an attempt to meet with Alexander, he did not recall whether they were actually able to meet with him on that date. Pl.'s Exh. E at 48-49; Pl.'s Exh. F at 3-6. SA Freeman did not included in his written report regarding the events of July 12, 2006 that Kirtz and Chrisp were unable to meet with Alexander that day. Nor did SA Freeman record what Kirtz and Chrisp had told him during the debriefing he held with them following the surveillance attempt.
SA Freeman further testified that while the surveillance log for July 12, 2006 shows that both Kirtz and Chrisp were hooked up to electronic monitoring equipment between 2:47 p.m. and 4:18 p.m. (approximately an hour and a half), Chrisp's recording device failed altogether and Kirtz's device stopped recording after 49 minutes, at which point Chrisp and Kirtz were still waiting at the Alexander law firm to try to speak with Alexander. Pl.'s Exh. F at 6-7. Thus, there is no recorded evidence of any conversation that may have occurred between the informants and Alexander on July 12, 2006. It is not clear what caused the recording devices to fail on July 12, 2006. SA Freeman testified that he believes the battery died in the device attached to Kirtz and that a malfunction in ...