Full opinion text
MEMORANDUM OPINION AND ORDER MAHON, District Judge. This action for malicious prosecution under the Federal Tort Claims Act (“FTCA”) has presented the Court with one of the most unpleasant decisions in its memory. In a trial lasting some two weeks, witnesses often directly contradicted each other and the General Services Administration (“GSA”) in the Fort Worth area was shown to be rife with conflict and resentment among union, management, and purportedly neutral investigative personnel. Few of the major actors involved emerged unsullied. Having sorted through the evidence, the Court is persuaded that the prosecution of Plaintiffs Derrell N. Chandler and Harry L. Dawson for perjury and obstruction of justice was maliciously caused by a GSA investigator who, frustrated when he could not prove Dawson guilty of conspiracy to harm a GSA official and unable to secure Chandler’s aid in that regard, set out to prove both men guilty of other charges, regardless of the truth. The Court also finds that plaintiffs’ prosecution resulted from a lack of prosecutorial investigation and oversight. While these latter deficiencies are not directly actionable under the FTCA, they permitted the investigator to play an inflated role in the prosecution and to present as fact his own biased assumptions. Based, in particular, on the investigator’s intentionally false, misleading and incomplete testimony to the grand jury, the Court concludes that the government is liable to the plaintiffs for malicious prosecution. FINDINGS OF FACT Determining the facts in this ease has been complicated by conflicting testimony and the absence of the two key witnesses upon whom the government relied in plaintiffs’ underlying criminal prosecution. Plaintiffs, proceeding pro se, had the awkward task of both testifying and acting as counsel. The Court’s findings of facts are based on a careful consideration of the various witnesses’ credibility, the extensive documentary evidence (including audio tapes), the degree to which the latter corroborated the former, and the reasonable inferences drawn from the established facts. 1. Plaintiffs Dawson and Chandler have both worked for the GSA, Region 7, for a number of years. During the events at issue in this lawsuit, Dawson also was the President of the American Federation of Government Employees (“AFGE” or “union”) Local 2488 and the Regional Vice-President of the National Council of GSA Locals for the AFGE. Chandler was the Secretary-Treasurer of AFGE Local 2488. 2. From December 1983 to February 24, 1989, Warren T. Lander was a Crime Prevention Specialist with the Federal Protective Service of the GSA. In that position, Lander was issued the credentials of a federal law enforcement officer to be used in emergency situations or when specifically authorized by his supervisors. 3. In June 1988, the GSA charged Lander with sexual harassment and several other infractions, for which he ultimately received a fourteen-day suspension. Lander believed that Dawson, in his role as union president, prevented him from challenging the charges. As a result, Lander resented and distrusted Dawson and filed an unfair labor practice complaint against him. 4. On February 24, 1989, the GSA fired Lander for alleged misuse of his federal law enforcement credentials in October 1988. On March 8, 1989, Lander turned in his Crime Prevention Specialist credentials to the Federal Protective Service. The GSA did not reissue Lander those credentials or make any assignments where he had to use law enforcement authority after that date. 5. Beginning in February 1989, Chandler served as Lander’s union representative in challenging Lander’s discharge before the Merit Systems Protection Board (“MSPB”). In this capacity, Chandler took depositions and submitted written materials to the MSPB on Lander’s behalf. Throughout the course of the MSPB case, Lander suffered back pain and took various medications, including Tylenol III, which included codeine. Due to his pain and the need to take medication, Lander requested numerous breaks in depositions he attended. Chandler was aware that Lander had a back problem and was taking medication during this time. 6. On the afternoon of April 20, 1989, Chandler and a GSA representative deposed Lander. Lander took several breaks in the deposition, one in order to take medication. During one break, Lander had an argument with and expressed hostility toward Larry Hathaway, the personnel director for Region 7 of the GSA. Lander believed that Hathaway was at least partly responsible for his discharge. 7. That evening, a meeting of the AFGE Local was held and a vote was taken by the members. Although neither Lander nor Alfred Soto, another GSA employee, had been active in the union during the previous few years, both attended the meeting at the request of Dawson or Chandler, who desired a good turn-out for the vote. Lander arrived at the meeting late, appeared to be glassy-eyed and, when it came his turn to give his opinion of the issue at hand, spoke instead about an unrelated subject — the occurrence on which his discharge was based. 8. Following the meeting Dawson issued an open invitation to the members to have dinner at the Rig Restaurant (“Rig”). Only Lander and Soto, neither of whom was a personal friend of Dawson, accepted. The men each drove to the Rig in their individual vehicles. After being assigned a table near the cashier’s desk, the three men went to the salad bar. Dawson and Lander spoke to each other; Soto was not paying much attention to the discussion at that time. 9. At the salad bar or early in the meal, Lander complained about Larry Hathaway. Dawson, who as a long-time union representative felt it best to let Lander vent his frustration, agreed with Lander that something ought to be done about Hathaway. Dawson, known for his practical joking, also decided to play a joke. He asked Lander and Soto to each give him twenty dollars. When they did, he said something to the effect of “you’re now involved.” The men talked about Hathaway and how nice it would be if he got roughed up. Lander said he knew some people who could do the job. Dawson said they would need a photograph. Soto said he had a camera. Lander said he could get a photo. At some point Dawson congratulated the others and said they had just bought his dinner. After some more joking, he then gave Lander and Soto back twenty dollars each. The entire conversation was carried on in a joking manner, and the men departed the restaurant laughing. 10. In the days immediately following the Rig conversation, Dawson made no attempt to contact Lander or Soto to obtain a photo of Hathaway or otherwise follow up on their conversation. 11. The morning after the Rig conversation, Lander informed Brian Murphy, a Special Agent of the Office of Inspector General of the GSA (“IG”), about the conversation at the Rig. Lander represented that Dawson had initiated the discussion about Hathaway and that he believed Dawson was serious. Lander signed an affidavit to that effect. On the same day, Murphy informed J. Michael Worley, an Assistant United States Attorney (“AUSA”), of Lander’s disclosure. In the next few days, Richard Herr, the Regional Inspector General of the IG, instructed Murphy to investigate the veracity of Lander’s April 21 disclosure. 12. In an attempt to corroborate Lander’s story, Murphy arranged for Lander to deliver a photo of Hathaway to Dawson. Murphy recorded the conversations that Lander initiated with Dawson regarding the delivery. In the first conversation, on April 25,1985, Lander telephoned Dawson and told him he had a picture of Hathaway. Dawson was busy with union matters and did not want to deal with Lander. Nevertheless, because Lander appeared to be fixated on Hathaway, Dawson thought it easiest to go along with his apparent desire to deliver a photo. At Lander’s suggestion, Dawson agreed to meet him downstairs the next morning. When Lander said he did not know if the conversation at the Rig was serious, Dawson simply said he did not want to discuss it over the phone. 13. On the morning of April 26, 1989 when Dawson arrived at the union office, he found a telephone message from Lander saying he had tapes to “burn Hathaway.” Lander was known for taping many of his conversations with other people. Dawson assumed the tapes were something Lander thought could be used in his MSPB case. Later in the morning, Murphy sent Lander to the union office with a hidden tape recorder. Dawson was helping two GSA employees with union matters when Lander arrived. Chandler was sitting approximately eighteen feet away at the other end of the office, facing away from the door. After indicating he was busy, Dawson asked Lander, in reference to the tapes, “you going to get that other data for me today?” Lander said “this afternoon.” Lander then left the office with Chandler. Lander said he would come up to the union office later. That afternoon, Lander met with Chandler regarding his MSPB ease. 14. On April 28, 1989, Murphy again provided Lander with a hidden tape recorder and sent him to the union office with a photo of Hathaway in a sealed envelope. The photo was on an old GSA brochure and included Hathaway and another GSA official. When Lander entered the office, he greeted Chandler, who was then called to the phone. Lander then gave Dawson the envelope with Hathaway’s photo, which Dawson put aside. Chandler did not see this exchange. Following up on the Rig conversation, Lander started to tell Dawson about someone Dawson might get to rough up Hathaway. Dawson indicated his disinterest in that subject and surprise that Lander was still pursuing it. The conversation switched to Lander’s MSPB case. Chandler participated in this latter discussion, which took up the majority of the meeting. Later, Dawson threw away the photo of Hathaway. 15. On May 1, 1989, Murphy interviewed Soto about the conversation at the Rig. Soto was surprised and uncomfortable to find that Murphy apparently took seriously a conversation Soto considered to be a joke. Murphy drafted a memo of the interview, which represented that Soto said he was very scared while at the Rig, but also that everyone was jovial and acting macho and Dawson was boasting and joking. Murphy was not satisfied with Soto’s account and said to contact him the next day if he remembered more. 16. The next day, Soto called Murphy and then went to his office. Murphy had called in Lander, who was there when Soto arrived. While Soto was writing an affidavit, Lander stood behind him, reading what he wrote and trying to get Soto to corroborate Lander’s story of what had happened at the Rig. Murphy asked questions. Soto got the impression that Murphy wanted answers that would incriminate Dawson. As a result of Lander’s prompting, Soto’s affidavit described some of the same conversation that Lander had included earlier in his own affidavit, but Soto indicated he was uncertain that specific statements actually had been made. Further, Soto repeatedly stated that the conversation had been a practical joke, a prank. While Soto was present, Lander asked Murphy if he could help him with his MSPB case. Murphy said he would see what he could do. 17. On May 3, 1989, Murphy interviewed Chandler about a conversation he had with Dawson the previous evening during which Dawson had mentioned the Rig conversation but said it was a joke. Murphy asked Chandler to draft an affidavit stating only that Dawson admitted: (1) he was at the Rig with Lander and Soto, (2) there was talk of hurting someone, and (3) there was an exchange of money. Chandler refused and wrote an affidavit describing the entire conversation with Dawson as he remembered it. Murphy was angry with Chandler. 18. On May 8, 1989, Murphy complained to Chandler about the fact that the AFGE might pay attorney’s fees to have Dawson represented in the Rig matter. Murphy was upset and angry. 19. On May 8, 1989, John Cartwright, then Director of the Real Estate Division, notified Dawson that he was being placed on administrative leave without loss of pay and would also be barred from the Federal Building due to the charges against him being investigated by the IG. Cartwright and his superior, Leighton Waters, Assistant Regional Administrator for Administration, were not seriously concerned about Dawson’s alleged threat to Hathaway, largely because Hathaway himself had indicated he believed the threat was a joke. The decision by Cartwright, Waters, and other management personnel to ban Dawson from the building was made pursuant to a request by Murphy to Waters and as a result of management’s belief that it was best to cooperate with the IG. 20. On the afternoon of May 8, Lander was in the union office on his MSPB matter. Dawson had drafted a document showing his recollection of the Rig conversation. The document stated that Lander had initially brought up the topic of Hathaway, and described the ensuing conversation as a joking venting of frustrations about Hathaway. Dawson gave Lander and Soto each a copy of the statement and asked them to look it over and make any changes they thought warranted. Soto took the document home, made a few changes, and signed it on May 25, 1989. Soto did not change the statement that Lander had initiated the topic of Hathaway. Lander only modified the document so that it no longer said he was the one who initiated the topic of Hathaway. Lander then signed the statement before a witness in the office. Before Lander did so, Dawson made it clear that he shouldn’t do anything he didn’t feel comfortable with. Lander was in the office for quite some time. The conversation, which was recorded unbeknownst to him, was jovial and does not indicate that Lander was pressured in any way. 21. Later the same day, Lander went to Murphy and gave an affidavit stating that Dawson had demanded he sign the statement of Dawson’s recollection and that he felt coerced and threatened by the demand. 22. On May 14, 1989, Chandler drafted a memo regarding a meeting that day with Lander on the MSPB case. According to the memo, Lander told Chandler that he was the one who had reported the Rig conversation to the IG. He had done so because he was afraid Dawson might be trying to set him up in retaliation for the unfair labor practice complaint he had filed against Dawson. He was also concerned that his MSPB case would suffer if someone else reported the Rig conversation to the IG first. Lander said the Rig conversation was a joke, but he was afraid to tell the IG that now because of the effect it would have on his MSPB case. 23. On several occasions following his May 14, 1989 disclosure to Chandler, Lander sought Chandler’s advice as to how to deal with the fact that although the Rig conversation was a joke, he had reported it to the IG’s office as a serious threat. As Lander’s representative in the MSPB case Chandler was in a difficult position. He wanted Lander to tell the truth but was also aware of the adverse effect it might have on Lander’s MSPB case. On one or more occasions, in the context of conversations that flipped back and forth between the MSPB case and the Rig matter, Chandler advised Lander he had several options in dealing with the situation, including saying he had misunderstood the Rig conversation, perhaps because of the medication he was taking. Chandler refrained from recommending any particular action because he was concerned Lander might bring an unfair labor practice complaint against him if a recommended course did not work out. 24. Lander had a reputation among his supervisors and other management personnel for lacking credibility. He also was paranoid and had a tendency to blame others for anything bad that happened to him. Murphy became aware of Lander’s reputation and tendencies during the course of his investigation. 25. Shortly after Lander reported the Rig conversation to Murphy, Murphy informed Hathaway there had been a threat against him. At that time Hathaway was concerned about the threat. However, after learning that Dawson was the party alleged to have made the threat and Lander was the informant, Hathaway told Murphy he thought the threat was a joke. He also told Murphy there was no animosity between Dawson and himself. Although Hathaway and Dawson represented, respectively, management and the union, they had not directly opposed each other in negotiations or hearings for several years. Murphy did not take an affidavit from Hathaway or make memoranda of any conversations with him. 26. Ignoring Hathaway’s information, and in an attempt to show Dawson had a motive for threatening him, Murphy then interviewed several GSA employees regarding the relationship between Dawson and Hathaway. He worded his questions so as to elicit information showing that the two men had an adversarial relationship based on their official duties, but also that they personally disliked each other. Murphy took affidavits from two employees and recorded memoranda of his interviews with two others to this effect. 27. On July 24, 1989, Dawson’s attorney, Michael Heiskell, sent AUSA Worley a letter with several accompanying documents. One was an affidavit by a GSA employee stating Lander had informed her the Rig conversation was a joke; he had also referred to Dawson’s having caused his fourteen-day suspension. Another was a copy of Chandler’s May 14, 1989 memo of Lander’s disclosure regarding the Rig conversation. The third document was a memo of an interview Heiskell had with the woman who witnessed Lander’s signature of May 8, 1989 on the statement of Dawson’s recollection of the Rig conversation. The woman stated that at the time Lander signed the document he was laughing and joking and did not appear to be under duress. Worley showed Murphy these documents. 28. A grand jury hearing was scheduled for August 1989 regarding the alleged conspiracy to harm Hathaway. On August 15, 1989, Lander called Murphy and told him that on August 12, Chandler had come to his apartment and said “they” wanted Lander to tell the grand jury he misunderstood the Rig conversation because he was on drugs and the conversation was just a joke. Lander said he felt Dawson and his attorney were trying to use Chandler’s friendship with Lander to persuade Lander to lie to the grand jury. In fact, on August 12, 1989 Chandler attended an out-of-town family reunion from which he did not return until late afternoon on August 13, 1989. Lander lied to Murphy about the August 12 conversation in order to bolster his own story and further incriminate Dawson. 29. Also on August 15, 1989, Lander told Murphy that a friend of his, James Phillips, said Chandler had talked to him about Lander changing his testimony. On August 16, at Murphy’s request, Phillips gave an affidavit regarding a conversation he had with Chandler on August 3, 1989. The affidavit stated that: Chandler was concerned because Lander had told the IG one story but was telling a different story when he was out socializing; Chandler wished Lander would tell the IG he had not realized the Rig conversation was a joke because of the medication he was taking; Chandler said if Lander had to testify at the grand jury hearing, he should make the same statement or invoke his Fifth Amendment rights; although Chandler did not ask Phillips to tell Lander the foregoing, Phillips believed Chandler expected Phillips to do so because of the friendship between Phillips and Lander. Murphy did not attempt to clarify or corroborate Phillips’ and Landers’ information. 30. Prior to the August 1989 grand jury hearing, AUSA Worley performed no independent investigation of the Rig conversation except to speak with Lander on one occasion. Murphy provided Worley with copies of the tapes and transcripts of the April 25, 26 and 28, 1989 conversations between Lander and Dawson, as well as some of his memoranda of interviews and the affidavits or statements made by various individuals. Murphy did not tell Worley he was the one who asked GSA management to ban Dawson from the Federal Building. Nor did he inform Worley that Hathaway said there was no animosity between Dawson and himself and believed the alleged threat was a joke. Worley conducted only a cursory review, if any, of the information Murphy provided and relied almost entirely on Murphy’s account of the evidence. 31. On August 23, 1989, Murphy, Lander, Soto, Dawson, and Chandler appeared before the grand jury convened by AUSA Worley to investigate Lander’s allegations regarding the Rig conversation. Prior to the hearing, Murphy provided Worley with suggested questions to ask the respective witnesses. Worley asked virtually all of the requested questions. 32. Murphy was already familiar with Dawson and Chandler for reasons totally apart from their connection with the Rig incident. In 1984, Dawson, as Vice President of the AFGE, filed an unfair labor practice charge against GSA, claiming that Murphy had violated Chandler’s union rights. The charge, as well as Chandler’s letter describing Murphy’s alleged improper conduct, was sent to Murphy directly, as well as to GSA and IG officials. The Federal Labor Relations Authority subsequently issued a complaint against GSA, the text of which expressly named Murphy. As a result of their complaint against him and the antagonism on which it was based, Murphy was not well-disposed toward Dawson and Chandler. Through other contacts, he also felt that Dawson was overbearing and misused his authority as a union official. 33. During the August grand jury hearing, Murphy testified regarding the Rig conversation and the motives of Dawson, in particular. Murphy gave false testimony, mischaracterized facts, and presented his own views and assumptions as fact. He volunteered information irrelevant to the investigation at hand that placed Dawson in a negative light but withheld exculpatory evidence even when it was directly called for. Far from presenting evidence fairly as a neutral investigator, Murphy evinced a personal dislike for Dawson and an intent to strengthen the case for possible charges against him. Without describing each and every falsehood, inaccuracy or omission, the Court finds the following to be significant and representative. (a) Murphy testified that he had attempted to interview Dawson on several occasions but each time Dawson refused. In reality, on the only occasion Murphy attempted to interview Dawson, Dawson asserted his right to have an attorney present, after which Murphy terminated the interview. Subsequently, Dawson and his attorney voluntarily presented themselves to Murphy for an interview, which Murphy declined. Murphy did not again attempt to interview Dawson. (b) Murphy intentionally misrepresented a number of details in describing the taped conversations between Lander and Dawson regarding the photo of Hathaway. The errors increased the'impression that Dawson was anxious to obtain the photo and concerned that its exchange be carried out in a clandestine manner. Murphy did not reveal that when Lander attempted to propose a “hit man,” Dawson showed no interest. The tapes were not played for the grand jury. (e) Murphy testified that the relationship between Dawson and Hathaway was one of personal hatred, built up through years of direct conflict. Murphy did not reveal that the two men had had little contact in recent years or that Hathaway himself had denied there was any animosity between Dawson and himself. (d) Murphy testified that the GSA barred Dawson from the Federal Building and put him on administrative leave because of the agency’s belief that the allegations regarding the Rig conversation had merit and were a very serious matter. Murphy did not reveal that he had requested GSA to take these actions against Dawson or that Hathaway thought the threat was a joke. (e) Murphy, without any questioning on the subject, brought up the fact that Dawson was paid by the GSA even though he spent all his time on union work. The grand jurors took note of this irrelevant information and one remarked that this appeared to be a conflict. Murphy then bolstered the implication that Dawson was unscrupulous and was getting away with something improper by stating that the IG considered Dawson’s position to be very unusual and was investigating it. (f) When asked about the documents submitted by Dawson’s attorney — the affidavit and memos showing Lander knew the Rig conversation was a joke, his reasons for reporting it to the IG, and the questionable nature of his claim that Dawson coerced him into signing a statement — Murphy dismissed the documents as simply attacking Lander’s credibility. He did not provide the authors or substance of the documents so that the grand jury could make the determination of whether they were worthy of consideration or question Lander about their contents. Murphy then stated that Chandler had attempted to get Lander to lie to the grand jury and say the Rig conversation was a joke, without mentioning Chandler’s memo, which showed Chandler had grounds to believe the conversation was in fact a joke. (g) Murphy consistently described Lander as a law enforcement officer in order to bolster his credibility and put the IG’s investigation in a better light, although Lander had been discharged prior to reporting the Rig conversation. (h) Murphy testified several times that Soto and Dawson were personal friends and that Soto felt indebted to Dawson for having represented him in a successful challenge of his discharge. The grand jurors considered this information important and sought Murphy’s corroboration of it later in his testimony. Murphy had no factual basis for these statements, but nevertheless used them to explain why Dawson would have sought Soto’s involvement in a conspiracy to harm Hathaway and why Soto would attempt to protect Dawson. 34. Lander knew that the only way to maintain his credibility and not jeopardize his chance of regaining his job was to testify consistently with his earlier reports to the IG. Lander’s testimony at the August 23, 1989 grand jury hearing therefore repeated his previous allegations against Dawson and Chandler. Nonetheless, his testimony was inconsistent, false, or misleading in a number of respects that reflected badly on Dawson and Chandler. 35. AUSA Worley believed that Murphy and Lander gave true and fair testimony during the August 1989 grand jury hearing. 36. At the time of the August 1989 grand jury hearing, neither Dawson nor Chandler was aware that the April 1989 conversations between Lander and Dawson in the union office had been recorded. 37. AUSA Worley did not present the August 23, 1989 grand jury with a proposed indictment. Neither he nor Murphy believed there was sufficient evidence to prove a conspiracy against Hathaway. Nevertheless, on August 24, 1989 or soon thereafter, Worley agreed that Murphy should review the August 23, 1989 grand jury testimony for evidence of possible perjury by Dawson and Chandler. 38. On August 29, 1989, Chandler sent Murphy a letter explaining his difficult position as Lander’s representative in the MSPB case. He indicated that Lander had divulged information to him which he was unable to reveal while he represented Lander. He also stated that, in response to questions by Lander, he had given advice as to options, but could not tell him which action to actually take. 39. Murphy prepared a list of statements in Dawson’s and Chandler’s grand jury testimony that he contended conflicted with other evidence. The statements were taken out of context in a number of instances, and Murphy omitted follow-up statements that modified the statements listed. In addition, Murphy listed Dawson and Chandler as having denied certain facts when, in fact, they had never been asked directly about those facts and did not deny them, but were responding to vague questions in a generalized fashion. Murphy drafted language for an indictment based on some of the listed testimony. He did not interview Dawson or Chandler concerning their statements to the August 23, 1989 grand jury or the facts underlying the proposed charges against them. The only new investigation he did was to review some of the documents submitted by Chandler in Lander’s MSPB case, as well as the MSPB Judge’s final opinion. 40. On November 21, 1989, Murphy spoke with Chandler and told him the United States Attorney’s office was considering bringing charges against him for perjury and obstruction of justice. Murphy said that if Chandler testified against Dawson, the government might not proceed against Chandler. Chandler said he did not want to testify against Dawson. Following this conversation, Murphy did not speak with Chandler again and made no attempt to corroborate the charges against him. 41. On April 10, 1990, the same grand jury that had met on August 23, 1989 was reconvened to consider an indictment against Dawson and Chandler for perjury and against Chandler for obstruction of justice. Dawson and Chandler were not informed that the grand jury was being reconvened. AUSA Worley relied on Murphy’s information in drafting the final indictment and presenting evidence to the grand jury. Worley himself did no investigation and spent less than half a day, perhaps as little as an hour, reviewing the material Murphy provided to him. 42. The perjury charges, five counts against each man, were based directly on sections of Dawson’s and Chandler’s grand jury testimony that Murphy had earlier listed as being false, with the same omissions of follow-up, modifying testimony. Two of the counts against Dawson were based on his statements that Lander initiated the topic of Hathaway; three were based on the fact that he had requested from Lander a photo of Hathaway. One of the perjury counts against Chandler was based on his statement that there was no discussion of “other data” when he met with Lander on April 26, 1989; three were based on his denial that he had told Lander or anyone else that Lander should say the Rig conversation was a joke and that he had been on medication; one was based on his opinion of Lander’s credibility, in which he referred to Lander’s bad reputation for credibility among his supervisors and said he believed medication had affected Lander’s perception. The count of obstruction of justice was based on Chandler’s allegedly having attempted on August 12, 1989 to get Lander to change his truthful testimony regarding the Rig conversation. A copy of the indictment is attached to this opinion. 43. AUSA Worley questioned only one witness, Murphy, at the April 1990 grand jury hearing. Worley relied on Murphy to present the relevant facts to the grand jury. Murphy described the grand jury testimony from the August 1989 hearing and explained the basis on which he contended Dawson and Chandler had perjured themselves. Murphy falsified or misrepresented important facts and took things out of context in order to incriminate Dawson and Chandler. He omitted information that undermined his assertion that the men were guilty on all charges. Following are some of the more significant examples. (a) Murphy stated that both Lander and Soto had testified that Dawson initiated the topic of Hathaway. When a grand juror expressed some doubt on this issue, Murphy testified that in response to a leading question from a juror as to whether Dawson had initiated the topic, Soto had said “yes.” In fact, Murphy knew Soto had never stated that Dawson initiated the topic of Hathaway. Murphy did not tell the grand jury that the only time Soto directly addressed the issue, in the document he signed on May 25, 1989, he stated that Lander initiated the topic of Hathaway. (b) Murphy testified that certain statements of Dawson were false because Dawson had requested Lander to provide him with a photo of Hathaway. In fact, Dawson was never directly asked whether he requested a photo from Lander and never denied that he did so. Dawson testified that he told Lander a photo would be needed; his affidavit presented at the first grand jury hearing included a similar statement. Lander’s original affidavit contained virtually the same statement. (c) Murphy misrepresented the recorded conversations between Dawson and Lander by adding details showing Dawson wanted to obtain the photo of Hathaway in a clandestine manner. Two of the misrepresentations were so obvious that Worley noticed and questioned Murphy about them, after which Murphy corrected himself. (d) Murphy testified that Dawson lied when he stated that Lander came to the office on April 28, 1989 to meet with Chandler on Lander’s MSPB case. According to Murphy, Dawson knew the only purpose of the meeting was for Lander to give Hathaway’s photo to Dawson. Murphy did not explain that: (1) Lander had been going to the union office on a regular basis to meet with Chandler on the MSPB case; (2) only he, Murphy, knew when he was going to send Lander to deliver the photo; (3) the last time Dawson and Lander had talked, on April 26, 1989, Lander had said he was going to bring the “other data,” which Murphy interpreted as the photo, that afternoon; (4) Lander and Dawson did not agree to meet on April 28; and therefore that Dawson had no reason to know that Lander’s visit to the union office on April 28 was specifically to deliver the photo. Murphy erroneously denied that a significant part of the April 28 meeting was spent discussing Lander’s MSPB case. Murphy also did not tell the grand jury that Dawson had never heard the tape of the April 28 meeting, which had taken place some four months before Dawson gave his testimony. This fact would have put in perspective Dawson’s failure to remember the exact order of the visit. (e) Murphy told the grand jury that Hathaway felt his relationship with Dawson had turned into something personal that could be physical, when in fact Hathaway had told Murphy he believed the alleged threat was a joke and there was no personal animosity between Dawson and himself. Murphy’s statement in this regard had no basis whatsoever. None of the other GSA employees whom Murphy interviewed regarding the relationship between Dawson and Hathaway had suggested that the relationship had an incipient violent aspect. (f) Murphy testified several times that Chandler was in the union office when Lander delivered the photo to Dawson, thereby giving the grand jury the impression that Chandler was aware of and involved in the alleged conspiracy to harm Hathaway. Murphy did not inform the grand jury that Lander stated Chandler did not observe the exchange. (g) Murphy testified that Chandler lied by saying there was no discussion of “other data” when he met with Lander on April 26, 1989. Murphy did not reveal to the grand jury that Lander told him Dawson took him aside when he asked for the “other data,” thus making it unlikely Chandler would have heard that statement. He also did not reveal that, in testimony not quoted in the indictment, Chandler said he simply did not “remember” such a statement, and that Chandler’s testimony other than that actually quoted in the indictment showed he was talking about an entirely different conversation than the one recorded by Murphy. (h) Murphy testified that Chandler attempted to alter and influence Lander’s grand jury testimony by suggesting he change his story and say the Rig conversation was a joke. Murphy did not tell the grand jury that as early as May 14, 1989, Chandler had written a memo stating Lander told him the conversation was a joke and wished he had never reported it to the IG. Murphy also did not tell the grand jury that a GSA employee totally uninvolved in the Rig incident wrote an affidavit stating that Lander told her the Rig conversation was a joke. Thus, Murphy prevented the grand jury from knowing Chandler had a legitimate basis for advising Lander he might say the conversation was a joke. (i) Three perjury charges were based on Chandler having denied he told Lander or anyone else that Lander should say the Rig conversation was a joke and he was on medication. The indictment quoted only the simple denial, not Chandler’s follow-up testimony. Murphy did not inform the grand jury that Chandler testified he had advised Lander of the option of saying the Rig was a joke and that he was on medication. Nor did Murphy tell the grand jury that Phillips stated Chandler never actually asked or told him to speak to Lander about changing his testimony. (j) Despite Chandler’s August 29,1989 letter explaining his awkward position as Lander’s representative in the MSPB case, Murphy referred to Chandler’s statements on behalf of Lander in that entirely unrelated ease to discredit Chandler’s grand jury testimony regarding Lander’s credibility. Murphy told the grand jury that the MSPB judge had found Lander credible, but did not tell them her decision was based solely on the written MSPB record. Murphy also misrepresented the findings of the MSPB judge, erroneously claiming she found that Lander’s supervisors had retaliated against him and were lacking in credibility. In reality, the judge concluded that retaliation was not proven and that Lander’s supervisors who were the deciding officials regarding his discharge had testified without contradiction and made their decision based on permissible factors. Murphy’s misrepresentation was intended to support Lander’s credibility, to show Murphy was reasonable in relying on him and to bolster the perjury charge based on Chandler’s opinion of Lander’s credibility. 44. Worley believed that Murphy gave true and fair testimony during the April 1990 grand jury hearing. 45. The grand jury had heard the testimony of Dawson, Chandler, and the other witnesses almost eight months earlier and accordingly relied primarily if not entirely on Murphy’s testimony in considering the proposed charges. On April 11,1990, the grand jury returned the indictment against Dawson and Chandler for perjury and obstruction of justice. 46. In October 1990, Dawson and Chandler were tried on the charges for which they were indicted. During the trial, the judge on more than one occasion indicated to the prosecutor (out of the hearing of the jury) his belief that there was no merit to the charges and that they never should have been brought. After a trial that lasted over a week, the jury deliberated less than an hour, then acquitted both men on all counts. 47. Lander, who reportedly lives in Mexico now, did not testify at the trial of this matter. Although he was in Fort Worth within the month preceding the trial, speaking with persons at GSA, the government did not subpoena him or call him as a witness. The government relied on his affidavits, grand jury testimony, and testimony at plaintiffs’ criminal trial. 48. Soto, who now reportedly lives in Colorado, also did not testify in the trial in this matter. The government relied on his affidavit, grand jury testimony, and testimony at plaintiffs’ criminal trial. CONCLUSIONS OF LAW Before considering the plaintiffs’ substantive claim of malicious prosecution, the Court addresses several motions that were carried along at the conclusion of the trial. 1. Plaintiffs’ motion to take judicial notice of file Plaintiffs Dawson and Chandler moved for production and judicial notice of a file from the U.S. Attorney’s Office in Houston, Texas regarding the prosecution of Patrick 0. Houston. Plaintiffs argued the file would show that in Houston’s case, also investigated by Murphy, perjury charges were brought, as in their case, instead of an indictment on the original matter of investigation. Houston’s case was dismissed before trial, plaintiffs contended, because after interviewing some of the witnesses, the prosecutor discovered that Murphy had mislead him. Having reviewed the Houston file in camera, the Court finds there is no material in the file that is relevant or admissible in this case. Accordingly, plaintiffs’ motion seeking judicial notice of the file is DENIED. 2. Plaintiffs’ motion to admit prior deposition testimony of Alfred Soto Plaintiffs moved to admit testimony of Alfred Soto given in two depositions plaintiffs took in April and May 1991. Plaintiffs took the depositions in support of proceedings before the MSPB in which, after being acquitted, they sought wages and/or benefits lost as a result of their indictment and their time away from work. The government opposed admission of the testimony under Fed. R.Evid. 804(b)(1), arguing that at the time the depositions were taken the only issue before the MSPB was whether it had jurisdiction; therefore, although the government had a representative at the depositions, it had no motive to develop the testimony by cross-examination. The government contended there was no other basis for admission of the depositions. Although plaintiffs questioned Soto on some of the very issues involved in this litigation, the Court concludes that the circumstances of his deposition were such that GSA did not have an adequate motive to develop his testimony. GSA did not send an attorney to the depositions and had no reason to believe the testimony would be used for purposes of creating the kind of liability at issue here. The Court therefore will not admit the deposition under Fed.R.Evid. 804(b)(1). Further, although Soto’s deposition testimony is consistent with his other prior testimony and therefore appears to be generally trustworthy, it is not necessary to the Court’s conclusions. The Court therefore finds the deposition inadmissible under Fed. R.Evid. 804(b)(5). Finding no other basis for admitting the deposition, the Court DENIES plaintiffs’ motion to admit Soto’s deposition testimony. 3. Government’s motion to reconsider Lander’s status as a law enforcement officer In a motion for partial summary judgment, the government moved to dismiss plaintiffs’ claims to the extent they were based on the actions of Lander. The government argued that Lander had been discharged before the events in this lawsuit and therefore was not acting within the scope of his employment, let alone as a federal law enforcement officer, at the time; under 28 U.S.C. § 2680(h), then, a claim of malicious prosecution could not be based on his actions. On September 9, 1993 the Court denied dismissal of the claims against Lander. The Court found that, contrary to its present contention, the government had previously certified in a related action before another judge that Lander was acting within the scope of his employment at the time of the events in question. As a result of the certification, Lander had been dismissed as an individual defendant in that action, leaving plaintiffs with far more limited remedies against the government under the FTCA. In addition, through Murphy, the government had represented to the grand jury that Lander was a law enforcement officer at the relevant times in order to add credibility to Lander’s information and the government’s reliance upon it. Based on these facts, the Court determined that the government was now estopped from denying Lander was a law enforcement officer acting within the scope of his employment during the events in this case. The government has moved for reconsideration of the September 9, 1993 Order to the extent it denies dismissal of the claims against Lander. Unwilling as the Court is in view of the government’s inexcusable conduct and its detrimental effect on plaintiffs, the Court concludes it must grant the motion. As sovereign, the United States is immune from suit except as it consents, and the terms of its consent to be sued in a particular court define that court’s jurisdiction to hear a suit against the government. See, e.g., Lehman v. Nakshian, 453 U.S. 156, 160, 101 S.Ct. 2698, 2701, 69 L.Ed.2d 548 (1981). Applying this principle, it has been held that federal courts lack subject matter jurisdiction to hear claims against the United States falling within one of the exceptions to the FTCA. City of Garland v. Zum Industries, Inc., 870 F.2d 320, 326 (5th Cir.1989). Thus, the Court lacks subject matter jurisdiction over plaintiffs’ claims for malicious prosecution against Lander unless at the time of his relevant conduct Lander was a law enforcement officer within the terms of section 2680(h). The Court previously found the government was estopped from denying Lander was a law enforcement officer. However, lack of subject matter jurisdiction may not be created or waived by the parties’ consent, conduct or even by estoppel. Insurance Corp. of Ireland v. Compagnie des Bauxites de Guinee, 456 U.S. 694, 702, 102 S.Ct. 2099, 2104, 72 L.Ed.2d 492 (1982); Sarmiento v. Texas Bd. of Veterinary Medical Examiners, 939 F.2d 1242, 1245 (5th Cir. 1991). Hence, unless the evidence shows Lander actually was a law enforcement officer at the critical times, dismissal of plaintiffs’ claims based on his conduct is required. Plaintiffs contend that Lander was a law enforcement officer at the relevant times. Citing Kerr v. National Endourment for the Arts, 726 F.2d 730 (Fed.Cir.1984), they argue that although he was discharged and turned in his law enforcement credentials prior to the Rig conversation and ensuing events, the MSPB’s cancellation of his discharge one year later had the effect of returning him to his former position as of the date he was discharged. While Kerr held that the purpose of an MSPB cancellation order is to place the employee as nearly as possible in the status quo ante, it does not mandate the conclusion plaintiffs assert. Kerr simply held that upon reinstatement, the discharged employee must be given duties and responsibilities substantially equivalent to those held before the discharge. It did not purport to hold that a person in Lander’s position is to be retroactively placed in his former position such that his employer may be held hable for his actions during the time he was discharged. Based on the facts before it, the Court cannot find that Lander was a law enforcement officer during the events on which plaintiffs base their claim. The evidence clearly supports plaintiffs’ claim of malicious prosecution against Lander. Nevertheless, for the foregoing reasons, the Court must GRANT the government’s motion for reconsideration and now DISMISSES plaintiffs’ claim of malicious prosecution to the extent it is based on the conduct of Warren T. Lander. 4. Malicious prosecution claim A. Federal Tort Claims Act requirements and limitations As a result of the Court’s earlier rulings, plaintiffs’ only remaining claim at trial was for malicious prosecution under the FTCA. As indicated earlier, the government’s consent to be sued under the FTCA is limited by various exceptions, one of which is that a claim of malicious prosecution is only cognizable if based on the acts or omissions of a law enforcement officer. It is undisputed that Murphy was a law enforcement officer within the terms of 28 U.S.C. § 2680(h) at all times relevant to this lawsuit. A second exception to the FTCA is also relevant here. Section 2680(a) provides that the FTCA does not apply to: Any claim ... based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused. Applicability of the discretionary function exception depends on the nature of the conduct involved, particularly whether Congress intended that sort of conduct to be shielded from liability. United States v. S.A. Empresa de Viacao Aerea Rio Grandense (Varig Airlines), 467 U.S. 797, 813, 104 S.Ct. 2755, 2764, 81 L.Ed.2d 660 (1984). The exception was intended to “prevent judicial ‘second-guessing’ of legislative and administrative decisions grounded in social, economic and political policy” and to protect the government from liability that would seriously handicap efficient operations. Id. at 814, 104 S.Ct. at 2765. It is generally agreed that decisions by U.S. Attorneys regarding when, where, how, and who to investigate, and whether to prosecute, are the kind of conduct protected from suit by the discretionary function exception. See, e.g., Sutton v. United States, 819 F.2d 1289, 1293 (5th Cir.1987); Gray v. Bell, 712 F.2d 490, 514 (D.C.Cir.1983). Whether investigative decisions by agents such as Murphy also fall within the exception is less clear, the outcome depending on the exact nature of the conduct involved. Compare Sutton, 819 F.2d at 1294 (stating in dicta that investigative agent’s suppression of favorable evidence and manipulation of other evidence may well fall outside discretionary function exception); Wright v. United States, 719 F.2d 1032, 1035 (9th Cir.1983) (unlike decision to prosecute, investigative officer’s conduct before and after decision is not exempt from review); Crow v. United States, 634 F.Supp. 1085, 1089 (D.Kan.1986) (while agent’s planning, preparation and completion of investigation comprises discretionary conduct, falsification of memoranda and giving of false testimony is not). Nevertheless, without exception, courts have held that an investigative agent’s giving of false testimony to a grand jury is not immune as a discretionary function. See Wright, supra; Crow, supra; Heywood v. United States, 585 F.Supp. 590, 591-92 (D.Mass.1984). The discretionary function exception bars plaintiffs from basing their malicious prosecution claim on AUSA Worley’s conduct in relation to plaintiffs’ prosecution. The government argues that the exception also prevents a claim based on the manner in which Murphy investigated the charges against plaintiff. Although Murphy’s investigation was both biased and deplorably deficient, reflecting an intent to incriminate regardless of the evidence, the Court determines that the investigation itself did not involve non-discretionary conduct. Therefore, the manner and scope of Murphy’s investigation may not serve as a basis for the malicious prosecution claim. However, Murphy’s participation in bringing charges against plaintiffs without probable cause, particularly his giving of false testimony and withholding of material information from the prosecutor and the grand jury, fall outside the discretionary function exception and are subject to the Court’s review. B. Elements of malicious prosecution and the evidence Under the FTCA, plaintiffs must prove that Murphy’s wrongful conduct occurred “under circumstances where the United States, if a private person, would be liable to the claimant in accordance with the law of the place where the act or omission occurred.” 28 U.S.C. § 1346(b). The parties are agreed that Texas law applies in this ease. To recover for malicious prosecution under Texas law, a plaintiff must prove: 1) the commencement of a criminal prosecution against the plaintiff; 2) which has been caused by the defendant or through the defendant’s aid or cooperation; 3) which terminated in the plaintiff’s favor; 4) that the plaintiff was innocent; 5) that there was no probable cause for the proceedings; 6) that it was done with malice; and 7) that it damaged the plaintiff. Browning-Ferris Indus., Inc. v. Lieck, 845 S.W.2d 926, 936 (TexApp. — Corpus Christi 1992). See also Pete v. Metcalfe, 8 F.3d 214, 219 (5th Cir.1993); Brown v. United States, 653 F.2d 196, 198-99 (5th Cir.1981), cert. denied, 456 U.S. 925, 102 S.Ct. 1970, 72 L.Ed.2d 440 (1982). Although the Texas Supreme Court does not appear to have ruled on the issue, one appellate court has held that the elements must be proven by clear and convincing evidence. Lieck, 845 S.W.2d at 935; Diamond Shamrock Corp. v. Ortiz, 753 S.W.2d 238, 241 (Tex.App. — Corpus Christi 1988). The Court finds it best to apply this standard. ' [12] There is no question that the first and third elements have been met in this case. In addition, the evidence showed that plaintiffs were damaged by their wrongful prosecution, both in monetary and emotional terms. For the following reasons, the Court concludes that the other elements are satisfied as well. 1. Causation Citing Lieck, supra, and Thomas v. Cisneros, 596 S.W.2d 313 (Tex.Civ.App.— Austin 1980), the government argues that the element of causation is not satisfied because Murphy fully and fairly disclosed all relevant facts to AUSA Worley, thereby breaking the chain of causation. This argument fails for two reasons. First, Murphy did not fully disclose all relevant information to Worley. For example, he did not inform Worley that Hathaway said there was no animosity between Dawson and himself and believed the alleged threat by Dawson was a joke. Further, Murphy’s analysis of Dawson and Chandler’s testimony in the first grand jury hearing, which he presented to Worley and on which Worley directly relied in drafting the indictment, quoted testimony out of context and omitted follow-up testimony undermining the perjury charges. In addition, in the eases cited by the government, the defendant’s testimony to a grand jury was not at issue and the prosecutor chose to press charges based directly on the defendant’s information given to the prosecutor. Here, by contrast, the decision to prosecute was made through the medium of the grand jury, which had to determine whether there was probable cause to indict. Worley relied on Murphy to gather, analyze, and present the evidence fully and fairly to the grand jury. Worley barely reviewed the evidence and essentially followed Murphy’s recommendations. Murphy even provided Worley with the questions to be asked each witness at the first hearing. Murphy’s testimony at the first grand jury hearing presented an overview of the ease and painted a picture of Dawson as an unscrupulous wielder of power who could and would manipulate anyone who had ever benefitted from union representation. As the only witness at the second hearing, Murphy was responsible for shaping the grand jury’s view of the evidence, which he filtered and altered to make the case against Dawson and Chandler. The Court therefore finds that, regardless of the information Murphy provided to Worley, Murphy’s false and misleading testimony to the grand jury caused it to return the indictment and thus initiate the prosecution of plaintiffs. 2. Innocence The Court concludes that plaintiffs have proven their innocence of the charges for which they were prosecuted by clear and convincing evidence. First, the Court is convinced that Dawson did not commit perjury by testifying that Lander initially brought up the subject of Hathaway during the Rig dinner. Lander had just had an argument with Hathaway that afternoon and had been deposed with regard to his discharge, which he attributed at least in part to Hathaway, the personnel director. Dawson, on the other hand, had not had any contact with Hathaway for some time and there was no evidence of any reason why he suddenly would have been angry at Hathaway. In addition, the evidence showed Lander was volatile and paranoid, often using crude language to blame all his problems on others. Thus, while Dawson admitted he was the one who initiated the joke of exchanging and then returning twenty dollars, and all three men admitted to speaking about Hathaway getting hurt, the Court finds it far more likely that Lander first complained of Hathaway. This finding relates to Dawson’s innocence of two of the charges against him. Next, the Court finds that Dawson never denied he requested a photo of Hathaway from Lander and therefore could not be guilty of the three perjury charges based on that request. The Court also finds that Dawson did not perjure himself when he testified that he did not take the Rig conversation seriously and indicated, in general terms, that he was surprised when Lander appeared to be serious about wanting to deliver a photo of Hathaway. The evidence showed that Dawson made no effort to follow up on the Rig conversation until approached by Lander. Then, being extremely busy, he simply went along with Lander’s proposals to deliver the photo. Dawson knew Lander to be a difficult person and felt it best to humor him. When the photo of Hathaway was finally delivered, Dawson threw it away. He showed no interest when Lander tried to suggest a “hit man” to take care of Hathaway. Based on these facts, and the fact that Dawson had no reason to know Lander’s visit to the union office on April 28, 1989 was solely for the purpose of delivering the photo, the Court also concludes that Dawson did not commit perjury when, four months after an occasion he did not consider significant, his description of the April 28 visit was not accurate in its details. With respect to the charges against Chandler, the Court finds that Chandler did not commit perjury when he stated that Dawson did not ask Lander about “other data” on April 26, 1989. Chandler had no reason to hear or focus on Dawson’s use of that term and, in his testimony, was clearly referring to a meeting he had with Lander at a different time than that referred to in the question AUSA Worley asked him. The Court further finds that Chandler was innocent of the three counts of perjury based on his alleged attempt to get Lander to change his testimony. WTiile Chandler ■wished Lander would be truthful, and advised him of various options in light of his earlier untruthful report to the IG’s office, Chandler carefully refrained from saying that Lander should take any particular path. Chandler’s discussions with persons other than Lander himself expressed Chandler’s frustration with Lander’s inconsistent positions and concern that they would jeopardize the MSPB case; Chandler continually was fearful that an unfavorable outcome in that case would lead to Lander’s filing an unfair labor practice complaint against him. To the extent Chandler suggested to Lander or others that Lander might say the Rig was a joke, he was only suggesting Lander tell the truth as Chandler understood it. For these same reasons, Chandler was innocent of the count of obstruction of justice. Finally, the Court finds that Chandler was innocent of the charge of perjury based on his opinion of Lander’s credibility. The facts stated in the opinion have all been shown to be correct. Further, taking into consideration that Chandler knew Lander had lied to the IG’s office, was paranoid and was blaming everyone else for his employment problems, the Court finds that Chandler was honest in stating he believed Lander’s perception was messed up. 3. Probable cause The Texas Supreme Court has defined probable cause, in the context of a malicious prosecution case, as “the existence of such facts and circumstances as would excite belief in a reasonable mind, acting on the facts within the knowledge of the [defendant] that the person charged was guilty of the crime for which he was prosecuted.” Akin v. Dahl, 661 S.W.2d 917, 921 (Tex.1983), cert. denied, 466 U.S. 938, 104 S.Ct. 1911, 80 L.Ed.2d 460 (1984). The standard is an objective one, based on the view of a reasonable person. While subsequent events may not be considered, the trier of fact may consider all evidence that the defendant knew or should have known at the time he instituted or cooperated in the prosecution. Id. at 920-21. The Court finds, based on all the evidence, that a reasonable person considering the facts within Murphy’s knowledge at the time he testified at the second grand jury hearing would not have believed plaintiffs guilty of the crimes with which they were charged. Murphy had information that negated each count in the indictment. His inculpatory information derived almost entirely from Lander, a man widely reputed to be lacking in credibility and whose testimony in the first grand jury hearing was erroneous in a number of respects evincing a desire to inculpate Dawson. On the other hand, substantial evidence showed that: the Rig conversation was a joke, on which no follow-up action was taken except that insti