Barone v. United States ( 2018 )


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  • 17-619-cv
    Barone v. United States
    UNITED STATES COURT OF APPEALS
    FOR THE SECOND CIRCUIT
    SUMMARY ORDER
    Rulings by summary order do not have precedential effect. Citation to a summary order filed
    on or after January 1, 2007, is permitted and is governed by Federal Rule of Appellate
    Procedure 32.1 and this Court’s Local Rule 32.1.1. When citing a summary order in a
    document filed with this Court, a party must cite either the Federal Appendix or an
    electronic database (with the notation “summary order”). A party citing a summary order
    must serve a copy of it on any party not represented by counsel.
    At a stated term of the United States Court of Appeals for the Second Circuit, held at
    the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York,
    on the 31st day of January, two thousand eighteen.
    PRESENT:            PIERRE N. LEVAL,
    GUIDO CALABRESI,
    JOSÉ A. CABRANES,
    Circuit Judges.
    JOSEPH S. BARONE,
    Plaintiff-Appellant,                        17-619-cv
    v.
    UNITED STATES OF AMERICA, SPECIAL AGENT
    MICHAEL GAETA, SPECIAL AGENT GREGORY
    MICELI, SPECIAL AGENT MICHAEL TROMBETTA, in
    their official capacities as agents of the Federal
    Bureau of Investigation and in their individual
    capacities,
    Defendants-Appellees.*
    FOR PLAINTIFF-APPELLANT:                                    MARK A. WEISSMAN, Herzfeld & Rubin,
    P.C., New York, NY.
    *
    The Clerk of Court is directed to amend the caption as shown above.
    1
    FOR DEFENDANTS-APPELLEES:                                  REBECCA S. TINIO, Assistant United
    States Attorney (Benjamin H. Torrance,
    Assistant United States Attorney, on the
    brief), for Joon H. Kim, Acting United
    States Attorney, Southern District of New
    York, New York, NY.
    Appeal from a judgment of the United States District Court for the Southern District of
    New York (Andrew J. Peck, Magistrate Judge).
    UPON DUE CONSIDERATION WHEREOF, IT IS HEREBY ORDERED,
    ADJUDGED, AND DECREED that the February 6, 2017 judgment of the District Court be and
    hereby is AFFIRMED.
    Plaintiff-appellant Joseph S. Barone appeals from a February 6, 2017 judgment in favor of
    defendants-appellees United States of America and FBI Special Agents Michael Gaeta, Gregory
    Miceli, and Michael Trombetta (“Defendants”). This case stems from Barone’s arrest and
    prosecution for involvement in an alleged murder-for-hire plot. After the government failed to attain
    a conviction, Barone brought various claims against Defendants under the Federal Tort Claims Act
    (“FTCA”), 
    28 U.S.C. § 2671
     et seq., and Bivens v. Six Unknown Federal Narcotics Agents, 
    403 U.S. 388
    (1971) (“Bivens”). The District Court dismissed some claims and later granted summary judgment to
    Defendants on the balance. Upon review, we affirm. We assume the parties’ familiarity with the
    underlying facts, the procedural history of the case, and the issues on appeal.
    BACKGROUND
    I.      Barone’s History as an FBI Source and the Murder for Hire Plot
    In 1993, Barone became what is today known as a “confidential human source” for the FBI,
    and for years served the agency by gathering evidence against some of New York’s organized crime
    families. During Barone’s time as a confidential human source, the FBI occasionally granted him
    authorization to commit “otherwise illegal activity,” or “OIA,” to facilitate his collection of
    evidence. Each OIA authorization lasted for ninety days and included a “specific description of
    authorized otherwise illegal activity.” App’x at 1356–57. Pursuant to the OIA authorizations, “under
    no circumstances” could Barone “initiate or instigate a plan or strategy to commit a federal, state or
    local offense.” Id. at 1358. And if he learned of such plans and did not report them “immediately,”
    he could be subject to “full criminal prosecution.” Id.
    In late 1999, Tony Piliero approached Barone about killing two individuals: “Cliff” and
    “another individual in Connecticut with whom [Piliero] was angry.” App’x at 1323. Barone reported
    this encounter to his FBI handler, who in turn memorialized it in a Form 302. Id. Barone expressed
    doubt about Piliero’s sincerity, but promised to alert his handler if Piliero contacted him again. Id.
    2
    Nine years passed. Then in 2008 an informant for the New York Police Department,
    Michael Cooks, told his handler about a murder plot involving Piliero and Barone. Sometime in the
    summer of 2008, Piliero and Barone had allegedly hatched a plot to murder one of Piliero’s former
    employees, Douglas Agnessanto, on whom Piliero had taken out a life insurance policy. Barone
    asked Cooks to carry out the deed, and gave Cooks $1,000 and Agnessanto’s personal information,
    including his address and Social Security number. Cooks proceeded to surveil Agnessanto’s house.
    In early January 2009, the FBI recorded a call that Cooks made to Barone. In it, Barone
    informed Cooks that Agnessanto’s life insurance policy expired in February, and so the murder had
    to “happen within the next week or two.” App’x at 886. Barone also assured Cooks that he was
    ready to pay him $50,000, provided Cooks perpetrated the crime “the right way.” Id. at 1460. At a
    subsequent meeting on January 9, Barone reiterated that Agnessanto had to be murdered before
    February, and said that he would provide Cooks a gun with “six shots.” Id. at 1490.
    The FBI arrested Barone later that day. At the time of his arrest, Barone had not told his
    FBI handlers about the murder-for-hire plot. Id. at 876–77, 884.
    II.     Post-Arrest and Trial
    After his arrest, Barone agreed to help the FBI build its case against Piliero. To provide
    cover for Barone, the FBI had him call a member of the Genovese crime family to say he had been
    arrested. Barone signed a form stating that he consented to making the call “without threats or
    promises of any kind.” App’x at 1729.
    Barone’s identity as a cooperating witness nevertheless became public shortly after the
    complaint against Piliero was filed. The complaint, which was drafted by an AUSA and sworn out by
    Defendant Miceli, referred to Barone as “CC-1.” Id. at 1818. The complaint further noted that CC-1
    had been arrested on “January 9, 2009 . . . outside his home in Westchester, New York.” Id. at 1819.
    Based on this information, a local newspaper identified Barone as the cooperating witness against
    Piliero. Concerned about Barone’s safety following the revelation, the Federal Bureau of Prisons
    moved Barone out of the general population and into the Special Housing Unit (“SHU”). There,
    Barone was subject to “administrative detention,” “a non-punitive status in which restricted
    conditions of confinement are required only to ensure the safety of inmates.” Id. at 94.
    Barone and Piliero were tried before a jury in July 2010 for, inter alia, plotting murder for hire
    and conspiracy. The jury ultimately acquitted Barone and Piliero on the murder-for-hire charge, but
    failed to reach a verdict on the conspiracy charge. The District Court later entered a nolle prosequi on
    the conspiracy charge.
    3
    III.    The Instant Litigation
    Barone then brought the instant action. In his amended complaint against the United States
    and the agent Defendants, Barone alleged seven causes of action: FTCA claims for (1) malicious
    prosecution; (2) intentional and (3) negligent infliction of emotional distress; (4) prima facie tort and
    (5) negligence relating to Barone’s detention in the SHU; (6) a Bivens claim for malicious prosecution;
    and (7) a Bivens due process claim relating to Barone’s detention in the SHU. The District Court
    dismissed the claims for negligent infliction of emotional distress, prima facie tort, and negligence
    relating to Barone’s detention in the SHU. The other four claims were allowed to proceed to
    discovery. The District Court later granted summary judgment to Defendants on the surviving
    claims.
    Barone appeals the District Court’s grant of summary judgment to Defendants on (1) the
    FTCA malicious prosecution claim; (2) the Bivens malicious prosecution claim; (3) the FTCA
    intentional infliction of emotional distress claim; and (4) the Bivens due process claim. He also
    appeals (5) the dismissal of the FTCA claim for negligence relating to his detention in the SHU.
    DISCUSSION
    We review the District Court’s award of summary judgment de novo, “constru[ing] the
    evidence in the light most favorable to the [losing party]” and “drawing all reasonable inferences and
    resolving all ambiguities in [its] favor.” Darnell v. Pineiro, 
    849 F.3d 17
    , 22 (2d Cir. 2017) (internal
    quotation marks omitted). We “will affirm only when there is no genuine dispute as to any material
    fact and the movant is entitled to judgment as a matter of law.” In re 650 Fifth Ave. & Related Props.,
    
    830 F.3d 66
    , 86 (2d Cir. 2016) (internal quotation marks omitted). To establish a genuine dispute,
    “[t]he nonmoving party must set forth specific facts,” and cannot rely on conclusory allegations.
    Rubens v. Mason, 
    527 F.3d 252
    , 254 (2d Cir. 2008) (internal quotation marks omitted).
    We also review de novo the District Court’s dismissal under Rule 12(b)(6) of the Federal Rules
    of Civil Procedure. Harris v. Mills, 
    572 F.3d 66
    , 71 (2d Cir. 2009).
    I.      Malicious Prosecution Claims
    Barone argues that, as a confidential informant, he was authorized by the FBI to engage in
    the murder-for-hire plot, thus negating probable cause for the prosecution. Barone’s tale finds no
    support in the evidence. We thus conclude that the District Court was correct to grant summary
    judgment for Defendants on the malicious prosecution claims because there was no disputed issue
    of fact capable of negating the Defendants’ showing of probable cause.
    “The elements of the tort of malicious prosecution are: (1) the commencement or
    continuation of a criminal proceeding by the defendant against the plaintiff, (2) the termination of
    the proceeding in favor of the accused, (3) the absence of probable cause for the criminal
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    proceeding and (4) actual malice.” Torres v. Jones, 
    26 N.Y.3d 742
    , 760 (2016). “Probable cause is
    defined as such facts and circumstances as would lead a reasonably prudent person in like
    circumstances to believe plaintiff guilty.” Perryman v. Vill. of Saranac Lake, 
    839 N.Y.S.2d 290
    , 292 (3d
    Dep’t 2007).
    Defendants undoubtedly had probable cause to prosecute Barone for the murder-for-hire
    plot. Between the summer of 2008, when he and Piliero first discussed the murder, and January
    2009, when he was arrested, Barone engaged in a course of conduct evidencing a clear intent to have
    Agnessanto murdered. During this half-year period, Barone approached Cooks about the murder,
    paid Cooks $1,000 to surveil Agnessanto’s house, planned the mechanics of the murder in macabre
    detail, pressured Cooks to complete the crime within weeks, and promised to pay Cooks $50,000
    when the crime was complete. All the while, Barone provided the FBI with no information about the
    impending crime.
    Yet Barone argues that the FBI gave all this its blessings. As evidence, he points to the
    murder-for-hire plot he reported in the January 2000 Form 302, which he asserts is somehow related
    to the murder for hire to be committed in January 2009. This claim is belied by the Form 302 itself,
    which was not only from nine years earlier, but makes no mention of a murder for insurance
    proceeds. Nor is his claim of authorization supported by the expired OIA authorization forms,
    which expressly prohibited him from “initiat[ing] or instigat[ing] a plan or strategy to commit a
    federal, state or local offense,” and required him to report crimes he learned of “immediately.”
    App’x at 1358.
    Simply put, there was no disputed issue of fact capable of negating the probable cause that
    justified the prosecution. Furthermore, the individual Defendants showed entitlement to have the
    claim of malicious prosecution dismissed by reason of their qualified immunity as their behavior did
    not violate any clearly established law at the time. We thus conclude that the District Court properly
    granted Defendants summary judgment on the malicious prosecution claims.
    II.     The Intentional Infliction of Emotional Distress, Bivens Due Process, and
    Negligence Claims
    Barone’s FTCA intentional infliction of emotional distress and Bivens due process claims fare
    no better. According to Barone, agent Defendants recklessly or intentionally disclosed his identity as
    an FBI informant, thus placing him in physical danger. Specifically, Barone argues that the agent
    Defendants forced him to make the phone call to the member of the Genovese crime family, and
    the agent Defendants were responsible for the inclusion of identifying information in the complaint
    against Piliero. But Barone consented in writing to making the phone call, and the complaint was
    drafted by an AUSA, not the agent Defendants. The District Court thus properly granted summary
    judgment for Defendants on these claims.
    5
    Finally, we conclude that the District Court correctly held that Barone’s negligent infliction
    of emotional distress claim falls within the discretionary-function exception for the FTCA. See 
    28 U.S.C. § 2680
    (a).
    CONCLUSION
    We have reviewed all of the arguments raised by Barone on appeal and find them to be
    without merit. For the foregoing reasons, we AFFIRM the February 6, 2017 judgment of the
    District Court.
    FOR THE COURT:
    Catherine O’Hagan Wolfe, Clerk
    6