Full opinion text
MEMORANDUM OPINION KOVACHEVTCH, Chief Judge. This civil action was tried before the Court, sitting without a jury, for approximately nine (9) days in October, 1996. The plaintiff, FRANK ANDRE WARE (hereinafter Ware), a former criminal defendant who was acquitted of federal drug charges, sued the defendant, UNITED STATES OF AMERICA (hereinafter the Government), for malicious continuation of prosecution under the Federal Tort Claims Act (hereinafter FTCA). As orally directed by the Court, the parties have submitted, in writing, their closing arguments, proposed findings of fact and conclusions of law, certain evidentiary objections, and other unresolved matters, including the Government’s motion to dismiss for lack of subject matter jurisdiction and all properly preserved motions and objections at trial. For the reasons expressed in this Order, the Court finds in favor of the Government. PROCEDURAL HISTORY I. Administrative Claims. 1. On March 15, 1991, Ware submitted two (2) administrative claims stemming from his criminal prosecution, one each to, respectively, the Federal Bureau of Investigations (hereinafter FBI) and the U.S. Attorney’s Office located in Tampa, Florida. Both agencies denied the claims. Ware submitted two (2) more administrative claims on February 3 and June 13 of 1992, one each to, respectively, the U.S. Attorney in Tampa, Florida, and the FBI in Boston, Massachusetts. With regard to the June 13 administrative claim, Plaintiffs Exhibit No. 5, a three (3) page document, Ware complained that an FBI Agent, Clifford Hedges, “intentionally, purposefully, and vindictively withheld the [results of an FBI fingerprint test] ... for the express purpose of hindering and prejudicing [Ware’s] defense.... ” Ware sought $50,000,000.00 in damages because “[t]he actions of Agent Cliff Hedges were the proximate [sic] cause of [Ware] being wrongfully convicted, and the proximate cause of [Ware] having to suffer false imprisonment, mental anguish, psychological trauma, and humiliating and degrading loss of reputation, and loss of life’s pleasures.” Ware did not specifically employ the phrase “malicious prosecution” or “malicious continuation of prosecution” in any of his administrative claims. Both the February and June claims were denied by the receiving agency. II. Judicial Proceedings in Michigan. 2. After his first two (2) administrative claims were denied, Ware commenced this action in the Western District of Michigan, Southern Division, by filing a “Civil Rights Complaint with Jury Demand” on July 1, 1992. (Case No. 4:92-CV-98, Docket No. 1). Proceeding pro se and in forma pauperis (Docket No. 2), Ware sued: (1) the Attorney General of the United States (hereinafter AG), then William P. Barr, in his official capacity; (2) Assistant United States Attorney (hereinafter AUSA) Dennis Moore, in his official and individual capacities; (3) Special FBI Agent Cliff Hedges, in his official and individual capacities; and (4) Mr. George Pedrolini (hereinafter Pedrolini), Ware’s criminal co-defendant, in his individual capacity. Ware alleged a variety of constitutional and statutory civil rights violations and sought at least fifty (50) million dollars ($50,000,000.00) in damages. 3. Within five (5) months of filing his complaint, Ware retained trial counsel (Docket No. 10) and shortly thereafter voluntarily dismissed his claims, without prejudice, against AG Barr and AUSA Moore, in all listed capacities, and Agent Hedges, in only his official capacity (Docket No. 26). Thus, at this point in time, Case Number 4:92-CV-98 retained Ware’s claims against Agent Hedges and Pedrolini in their individual capacities. 4. On March 12, 1993, Ware commenced a new action, 4:93-CV-21, by filing an amended complaint with jury demand (Docket No. 34). In the amended complaint, which superseded the original complaint in 4:92-CV-98, Ware asserted claims against the Government, FBI Agent Hedges in his individual capacity, and Pedrolini. Unlike the original complaint, the amended complaint contained separate and distinct counts: (1) negligence, defamation, malicious continuation of prosecution, and false imprisonment against the Government pursuant to the FTCA, Count I; (2) conspiracy to deprive Ware of certain constitutional rights against Agent Hedges and Pedrolini pursuant to 42 U.S.C. § 1985(3), Count II; and (3) constitutional violations committed under color of federal authority against Agent Hedges pursuant to Bivens v. 6 Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971), Count III. By court order, Pedrolini was dismissed without prejudice from both civil actions because of Ware’s failure to timely serve him. (Docket No. 41). 5. Once his cases were consolidated in Michigan, Ware sought a jury trial for Counts II and III against Agent Hedges and a bench trial for Count I against the Government. However, in July 1993, Ware’s case moved from Michigan to Florida. As to Counts II and III, the Honorable Richard A. Enslen, U.S. District Judge, granted Agent Hedges’ motion to dismiss for improper venue because, under 28 U.S.C. § 1391(b)(2), there was no substantial relationship between plaintiffs claims and the Western District of Michigan. As to Count I, Judge Enslen granted the Government’s motion under 28 U.S.C. § 1404(a) and transferred Ware’s consolidated civil actions to the Middle District of Florida, Tampa Division. (Docket Nos. 60-61). III. Judicial Proceedings before this Court. 6. Upon receiving what was left of Ware’s consolidated cases from Michigan, the Clerk of this Court issued them two (2) consecutive case numbers, 93-1172-CIV-T-17C and 93-1173-CIV-T-17C. However, because one (1) amended complaint controlled both cases, this Court ordered that they be consolidated into the lower case number. (Docket No. 63). 7. Substantively, this Court narrowed Ware’s six (6) causes of action within Count I down to two (2). First, at the motion to dismiss stage, the Court dismissed Ware’s negligence and defamation claims within Count I. Ware v. United States, 838 F.Supp. 1561 (M.D.Fla.1993) (Docket No. 89). The Court held, inter alia, that it had no subject matter jurisdiction over the negligence claim because Ware failed to exhaust his administrative remedies. The Court reasoned that Ware failed to allege negligence in his administrative claim. 8. Although the Court granted the Government’s motion to dismiss Ware’s negligence and defamation claims, it denied the motion as to Ware’s malicious continuation of prosecution and false imprisonment claims. However, the Court held that Ware could only rely upon the acts or omissions of Agent Hedges, not AUSA Moore, in his FTCA claim against the Government. 9. The Government did not argue that Ware failed to exhaust his administrative remedies with regard to any other claim within Count I, including malicious continuation of prosecution. Rather, it pursued this exhaustion argument only with regard to negligence. (Docket No. 79, p.17 n. 8). In fact, the Government filed a twelve (12) page motion to reconsider the Court’s denial of the Government’s motion to dismiss Ware’s malicious continuation of prosecution and false imprisonment claims. (Docket No. 92). Again, the Government advanced no exhaustion argument, and the Court denied the motion for reconsideration on substantive grounds. Ware v. United States, 1994 WL 34173 (M.D.Fla. Feb. 2, 1994) (Docket No. 99). 10. Counts II and III of Ware’s amended complaint- — dismissed for improper venue by Judge Enslen — -were revived by this Court when it granted Ware’s motion to amend his amended complaint. Ware v. United States, 152 F.R.D. 225 (M.D.Fla.1993) (Docket No. 88). Accordingly, Ware filed a second, and final, amended complaint on December 3, 1993 (Docket No. 94), which both the Government (Docket No. 106) and Agent Hedges (Docket No. 137) answered. 11. These counts, however, did not survive for long. This Court granted Agent Hedges’ motion to dismiss Count II for failure to state a claim under 42 U.S.C. § 1985(3). Ware v. Barr, United States Attorney General, 883 F.Supp. 654 (M.D.Fla.1995) (Docket No. 152). With regard to Count III, the Bivens action against Agent Hedges in his individual capacity, this Court declined to grant Agent Hedges qualified immunity due to the unresolved issues of fact. 12. Agent Hedges took an interlocutory appeal of this ruling to the United States Court of Appeals for the Eleventh Circuit. In a per curiam unpublished opinion, the circuit court reversed this Court’s ruling on the qualified immunity issue and directed it to enter judgment in favor of Agent Hedges. (Docket No. 160). The circuit court held that “the relevant ease law did not clearly establish that the negative fingerprint crime-lab report constituted Brady material in the circumstances of this ease.” As such, Agent Hedges was no longer a party to this action. 13. The only remaining portion of Ware’s second amended complaint (Docket No. 94) for trial was Count I against the Government. Although Ware could have tried both his malicious continuation of prosecution and false imprisonment claims, he chose to pursue only the former and surrendered the latter. (Docket No. 183). FINDINGS OF FACT The Court has duly reviewed and considered: (1) the undisputed portions of the pleadings and documents; (2) the testimony of the witnesses and their credibility; (3) the trial exhibits; and (4) the oral and' written arguments of counsel. In accordance with Fed.R.Civ.P. 52(a), the Court, sitting as the trier of fact, renders the following findings of fact and conclusions of law. To the extent that any finding of fact actually constitutes a conclusion of law, it is adopted as such. The converse also applies to the extent that any conclusion of law actually constitutes a finding of fact. I.Persons Involved. 1. Plaintiff FRANK ANDRE WARE is an individual presently residing in New York, New York. Ware’s Testimony; Defendant’s Exhibit No. 19 (Answer to Interrogatory No. 2). At all relevant times, Ware was a resident of Kalamazoo, Michigan. Amended Complaint (Docket No. 91) at ¶4 Ware’s Testimony. 2. Clifford Hedges is a Special Agent of the FBI formerly assigned to the Tampa, Florida, field office and presently assigned to the Boston, Massachusetts, field office. Amended Complaint at ¶ 6; Answer (Docket No. 106) at ¶ 6. The FBI is an agency within the Executive Branch of the Defendant, UNITED STATES OF AMERICA, specifically, the Department of Justice. Fed. R.Evid. 201(b) — (c) (judicial notice of a fact not subject to dispute). Agent Hedges was the lead law enforcement agent involved in the investigation and prosecution of Ware and Pedrolini. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges); Nelson’s Testimony. Agent Hedges sat at counsel table during both of Ware’s criminal trials. Id. 3. Dennis Moore is an Assistant United States Attorney who served as the lead prosecutor in both of Ware’s criminal trials. Ware’s Testimony; Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). There was no testimony, live or otherwise, from AUSA Moore in this civil action. 4. Greg Miller is an Assistant United States Attorney who sought court approval to wiretap confidential informant Marlon Von Reese’s phone line in 1989. Miller’s Testimony. At the civil bench trial, it was remembered, for the first time, that the undersigned was the judicial officer who approved the wiretap. Id. The Court having disclosed this information immediately upon recollection, the parties expressed no objection to the undersigned’s further involvement with the civil ease. Id. 5. Walter “Terry” Furr is an Assistant United States Attorney who made the decision, with supervisory approval, to charge Ware and Pedrolini and present the case to a federal grand jury. Furr’s Testimony. That was the extent of AUSA Furr’s involvement with the criminal action. Id. At the civil trial, there was no testimony proffered about the evidence presented to the grand jury. Nor was there testimony from any of the grand jurors. 6. FBI Agent Glen Edwards, DEA Agents Michael Powers and Roger Vernoy, and Pasco County Deputy Sheriffs John Nelson, Robert Sullivan, and Paul Umbaugh, III, were law enforcement officers involved with the April, 1989, incident by way of a multijurisdictional task force. Edwards’, Vernoy’s, Powers’, Nelson’s, Sullivan’s, and Umbaugh’s Testimony. Agent Vernoy served as an undercover agent. Vemoy’s Testimony. Posing a the cocaine seller, Agent Vernoy exchanged four (4) kilograms of cocaine for $54,980.00 in cash, as delivered by Pedrolini. Id. 7. George Joseph Pedrolini is an individual residing in Kalamazoo, Michigan. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). He was the co-defendant to Ware in United States of America v. George Pedrolini and Frank Ware, a/k/a George Pedrocini, Case No. 89-92-Cr-T-15A.' Having pled guilty with the benefit of a plea agreement, Pedrolini testified against Ware at both criminal trials. Defendant’s Exhibit Nos. 5 & 5A. Pedrolini’s testimony was dispositive of Ware’s criminal liability; without it, the Government could not have established a prima facie case for the offenses charged. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges); Defendant’s Exhibit No. 57 (U.S. District Judge Merry day denying Ware’s motion for judgment of acquittal at the close of the Government’s case at the second criminal trial, relying on Pedrolini’s testimony). 8. Marlon Von Reese is a resident of New Port Richey, Pasco County, Florida. Von Reese’s Testimony. Von Reese and Pedrolini had engaged in approximately five (5) or six (6) unlawful drug deals prior to April, 1989. Id. Von Reese served as a confidential informant to federal, state, and local law enforcement with regard to the April, 1989, incident with Pedrolini and Ware. Id. Von Reese served as the middleman; he brought Pedrolini to the (undercover) cocaine seller. Id. Von Reese never met Ware prior to his arrest. Id. 9. Brenda Burgheis was an acquaintance of Pedrolini and Ware. She testified for Ware at the second criminal trial. Plaintiffs Exhibit No. IS. II. Events Prior to Florida. 10. In the early part of 1988, Burgheis introduced Ware to Pedrolini. Ware’s Testimony; Plaintiffs Exhibit No. IS (second criminal trial testimony of Burgheis); Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Burgheis wanted Pedrolini to meet Ware because Ware was known as a substantial drug dealer in Kalamazoo, Michigan. Defendant’s Exhibit Nos. 5 & 5A. At trial, there was a dispute as to whether Pedrolini and Ware had met one another while employees at General Motors. Compare Ware’s Testimony (first met Pedrolini at GM) with Defendant’s Exhibit Nos. 5 6 5A (first met Ware with Burgheis). In any event, at Burgheis’ “introduction,” Ware agreed to pay Pedrolini $4,200.00 for six (6) ounces of cocaine. Defendant’s Exhibit Nos. 5 & 5A. Pedrolini subsequently obtained this cocaine from his supplier, Von Reese, and tendered it to Ware. Id. Ware later delivered the cash to Pedrolini. Id. 11. As stated supra, Von Reese and Pedrolini had engaged in approximately five (5) or six (6) drug deals prior to April, 1989. In one instance, Pedrolini delivered one (1) kilogram of cocaine to a buyer as a middleman for Von Reese. Defendant’s Exhibit Nos. 5 6 5A; Von Reese’s Testimony. 12. After Von Reese moved to Florida, Pedrolini and Burgheis drove to and stayed at Von Reese’s home. Defendant’s Exhibit Nos. 5 & SA (deposition testimony of Pedrolini); Plaintiff’s Exhibit No. 13 (second criminal trial testimony of Brenda Burgheis). No drugs were purchased or otherwise exchanged. Id. Pedrolini did not have enough cash to purchase cocaine and Von Reese apparently expressed reservations about Burgheis’ trustworthiness in light of her prostitution. Defendant’s Exhibit Nos. 5 & 5A. 13. Just prior to April, 1989, Ware and Burgheis went to Chicago, Illinois, for the purpose of purchasing cocaine for resale. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). They were unsuccessful. Id. EVIDENTIARY RULING: As the parties will recall, the Court OVERRULED Ware’s objections to those portions of Pedrolini’s deposition that contain out-of-court statements by Burgheis (p.23, lines 8-17; p.24, lines 19-22; p.26, lines 5-16; p.72, lines 20-24). The Court admitted this evidence under Fed.R.Evid. 801(d)(2)(E), finding that there was a conspiracy involving Burgheis, Pedrolini, and Ware and that the statements were made in the course and furtherance of said conspiracy. It is important to note that both declarants — Burgheis and Pedrolini — are unavailable and there is no dispute that Pedrolini’s deposition testimony is admissible under Fed.R.Evid. 804(b)(1). With regard to the conspiracy, the Court examined both the hearsay statement and independent evidence, Bourjaily v. United States, 483 U.S. 171, 107 S.Ct. 2775, 97 L.Ed.2d 144 (1987). Ware himself admitted that he, Burgheis, and Pedrolini had met together. Pedrolini’s deposition testimony, both challenged and unchallenged portions, corroborates the group’s agreement to purchase cocaine for resale. Further, Dirk Bartley testified that Burgheis obtained cocaine from Ware for resale and personal use. These out-of-court statements were also made during and in furtherance of the conspiracy. All statements by Burgheis occurred before Ware’s arrest and related to obtaining cocaine for resale and other unlawful use. The Court also notes that, with regard to p.72, lines 20-24, Ware has waived his right to object to that testimony because, under Fed.R.Civ.P. 32(d)(3)(B), Pedrolini’s alleged non-responsive answer to plaintiff counsel’s question “might [have been] obviated ... or cured” if objected to at the deposition. No such objection was seasonably raised by Ware. It should also be mentioned that Ware’s prior bad acts, such as his prior cocaine purchases from Pedrolini and his Chicago trip with Burgheis, are not admissible to prove that Ware acted in conformity with his character in April, 1989. Fed.R.Evid. 404(b). 14.In the months preceding April, 1989, Von Reese had continually offered to sell cocaine to Pedrolini if he came to Florida. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Unbeknownst to Pedrolini, Von Reese had become a confidential informant at the time of these telephone calls. Id.; Von Reese’s Testimony. This “sting” was planned by FBI Agent Hedges in Tampa with cooperation from state and local authorities. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). 15. Upon hearing of Burgheis’ and Ware’s unsuccessful trip to Chicago, Pedrolini told Ware that he could obtain cocaine from Von Reese at $19,000.00 to $19,500.00 per ounce. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). 16. Ware agreed to supply $58,000.00 in cash for the cocaine. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Pedrolini would drive to Florida with Ware in Pedrolini’s car and arrange for and actually purchase the cocaine from Von Reese. Id. In return, Ware promised to pay Pedrolini $2,000.00 in cash and to satisfy Ware’s $3,000.00 outstanding debt to Pedrolini. Id. 17. After reaching this agreement, Ware told Dirk Bartley, an acquaintance of Ware’s in Kalamazoo, that he was planning to take a trip to Florida. Dirk Bartley’s Testimony. Bartley understood that upon Ware’s return, Ware would have cocaine for resale in Kalamazoo, which was experiencing a “dry spell” of cocaine supply. Id. EVIDENTIARY RULING: Dirk Bartley’s testimony was unknown to Agent Hedges and the Government prior to and during Ware’s criminal prosecution. It is, therefore, not relevant to any of the essential elements of malicious prosecution. However, it is relevant to the Government’s affirmative defense of guilt-in-fact. Specifically, Dirk Bartley’s testimony is circumstantial evidence of Ware’s unlawful agreement with Pedrolini. Accordingly, Ware’s motion in limine to exclude all offers of proof regarding evidence of Ware’s guilt (Docket Nos. 181-182), on which the Court deferred ruling, be GRANTED IN PART as to the relevance of Dirk Bartley’s testimony and other similar post-acquittal evidence-as the Court will note supra —to the essential elements of the cause of action, and DENIED IN PART as to such evidence’s relevance to the Government’s affirmative defense of guilt-in-fact. For more discussion of this ruling, see infra Conclusions of Law ¶ 102. 18. Ware told another Kalamazoo acquaintance, Bradley Fields, that he was going to Florida to purchase cocaine. Bradley Fields’ Testimony. In fact, Ware “fronted” Fields two (2) ounces of cocaine and promised him more upon returning from Florida. Id. EVIDENTIARY RULING: As with Dirk Bartley’s testimony, Bradley Fields’ testimony is inadmissible to show Ware’s failure to prove the essential elements of malicious prosecution, in that neither Agent Hedges nor the Government knew of this witness until after Ware’s acquittal. However, the testimony is admissible with regard to the Government’s affirmative defense of guilt-in-fact. The Court reincorporates its ruling on Ware’s motion in limine (Findings of Fact, ¶ 17). 19. On April 20, 1989, Von Reese telephoned Pedrolini at Pedrolini’s home about where they would meet in Florida. Defendant’s Exhibit Nos. 21A & B. No reference was made to a third party such as Ware. Id. 20. Within minutes, Pedrolini returned Von Reese’s phone call as agreed. Defendant’s Exhibit Nos. 21A & C. Pedrolini was concerned about wiretaps on his home telephone, so he returned Von Reese’s phone call from a pay phone. Von Reese’s Testimony. While discussing where to meet, Pedrolini told Von Reese that “there’s one guy that’s gotta come with me, and I don’t want him to see you or you see him, you know what I’m saying.” Defendant’s Exhibit Nos. 21A & C. Asking who this “guy” was, Pedrolini responded that “he’s straight as an arrow ... [d]on’t worry about it.” Id. Von Reese expressed to Pedrolini that he did not want any contact with this “guy,” and vice-versa. Id. Pedrolini then opined that “[t]his guy is so [expletive] honest, he’s as honest as my own son.” Id. Pedrolini concluded the conversation by agreeing to contact Von Reese later. Id. 21. A third recorded conversation between Pedrolini and Von Reese occurred on April 21, 1989. Defendant’s Exhibit Nos. 21D & E. Von Reese gave Pedrolini directions to the Days Inn Hotel on State Route 54 and Interstate 75 in Pasco County. Id. No reference was made to a third party, such as Ware. Id. 22. It was Von Reese’s understanding that the $58,000.00 would not be Pedrolini’s money, which Von Reese immediately expressed to DEA Agent Michael Powers. Von Reese’s and Powers’ Testimony. Von Reese believed that this third person (Ware) either was the buyer/“money man” or protecting the buyer’s interest. Von Reese’s Testimony. 23. In the evening hours of Saturday, April 22, 1989, Ware and Pedrolini left Pedrolini’s home in Kalamazoo, Michigan, for Pasco County, Florida. Ware’s Testimony; Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Ware brought a black satchel, another little bag, and a black bag which had the money in it. Defendant’s Exhibit Nos. 5 & 5A. Ware also brought a .22 caliber gun with him. Defendant’s Exhibit Nos. 25A & 81. This gun was not registered to Ware; it was stolen. Defendant’s Exhibit No. 84. EVIDENTIARY RULING: The stolen nature of the gun was not known by Agent Hedges or the Government until late in the civil trial. In line with the Court’s ruling on Ware’s motion in limine, the fact that the gun was stolen is, therefore, admissible only as to the affirmative defense of guilt-in-faet. 24. Ware and Pedrolini took turns driving Pedrolini’s car, a two-seated, 1984, champagne-colored Corvette. Defendant’s Exhibit Nos. 8 & 26. Each drove about half flé) the way. Ware’s Testimony. III. Events in Florida. 25. Pedrolini and Ware arrived in Pasco County, Florida, around 1:00 p.m. on Sunday, April 23, 1989. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Ware checked into the Days Inn Hotel. Ware’s Testimony; Defendant’s Exhibit Nos. 5 & 5A; Calhoun’s Testimony; Edwards’ Testimony. Ware paid cash for the room and deposited enough money for one (1) key. Calhoun’s Testimony. The check-in agent opined that Ware acted as if he was only staying one (1) night. Id. EVIDENTIARY RULING: Pursuant to the Court’s ruling on Ware’s motion in limine, Pam Calhoun’s Testimony is admissible only as to the Government’s affirmative defense of guilt-in-fact; she was not asked to testify at either of Ware’s criminal trials and there is no indication to the Court that Agent Hedges knew of her involvement. 26. Pedrolini telephoned Von Reese through a pay telephone at the Days Inn to let him know that they had arrived. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Von Reese told Pedrolini to bring the money to his home; he was to come alone. Id.; Von Reese’s Testimony. 27. Pedrolini returned to his and Ware’s hotel room and asked Ware to make sure all the money was there. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Ware said that he would count the money while Pedrolini took a shower. Id. 28. After Pedrolini finished his shower, Ware advised him that he was finished counting the money and that it was all there. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Pedrolini was surprised that Ware had counted it so fast until he learned that the money was packaged in $1,000.00 bundles, albeit “messy” ones with mixed denominations and circulated, worn currency. Id.; Von Reese’s Testimony. 29. Because the money was packaged in bundles, Ware was able to count it with his thumb and forefinger touching the ends of the bundles as opposed to the flat surfaces of the bills. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). 30. Ware transferred the money from his black bag to Pedrolini’s brown bag, the same container that would be used to carry the cocaine. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). 31. With the money, Pedrolini drove to Von Reese’s home. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Ware stayed at the hotel. Id.; Ware’s Testimony. 32. At Von Reese’s home, Von Reese advised Pedrolini that he would have to spend the night at his home because the deal could not take place on Sunday, April 23, 1989. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini); Von Reese’s Testimony. Pedrolini called Ware from Von Reese’s home to tell him that he would not be at the hotel Sunday night. Id. Pedrolini told Ware “not to worry” and that “everything will be handled tomorrow.” Id. Von Reese overheard Pedrolini talking to Ware. Von Reese’s Testimony. 33. The following morning, Monday, April 24, 1989, Von Reese and his wife, Tammy, counted the money. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini); Von Reese’s Testimony. The Von Reeses reorganized the money so that like denominations would be bundled together. Von Reese’s Testimony. In the past, when Pedrolini had paid Von Reese cash, it was very neat and “ironed.” Id. After reorganizing the money, the Von Reeses and Pedrolini put it in a shoebox and placed the shoebox in Pedrolini’s brown bag. Id. 34. Later that morning, Pedrolini and Von Reese went to a Wal-Mart at the corner of state routes 54 and 41 to purchase cocaine from a supplier in a gray van. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini); Von Reese’s Testimony. Unbeknownst to Pedrolini, the supplier was an undercover DEA agent, Roger Vernoy. Vernoy’s Testimony. 35. When Pedrolini, Von Reese, and Vernoy were inside the van, Vernoy exchanged four (4) kilograms of cocaine, packaged in plastic boxes, for $54,980.00 in cash from Pedrolini. Vemoy’s Testimony; Defendant’s Exhibit Nos. 25 B & C (cocaine); Defendant’s Exhibit No. 25D (cash). Upon assurances from Von Reese that the money was all there, Vernoy did not count it while they were in the van. Vemoy’s Testimony. Not taking time to personally examine the sealed cocaine, Pedrolini told Vernoy that he “and his partner were going to be immediately leaving Florida and heading back North.” Id. Pedrolini also stated that his partner would be waiting out on a road near Interstate 75 as a “hitchhiker.” Id. 36. With Von Reese’s assistance, Pedrolini telephoned Ware from a pay phone near the Wal-Mart. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini); Von Reese’s Testimony. Pedrolini told Ware that everything was okay, to be ready to leave the hotel, and stand out front as if he were hitchhiking. Von Reese’s Testimony. Pedrolini placed the brown bag in the hatch area of his corvette and left for the Days Inn. Defendant’s Exhibit Nos. 5 & 5A. 37. Ware checked out of the Days Inn. Ware’s Testimony. Pedrolini met Ware at the Chevron gas station adjacent to the Days Inn. Id.; Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). 38. Pedrolini opened the clear glass hatch of the Corvette. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini); Defendant’s Exhibit Nos. 8 & 26. Pedrolini told Ware “there it is,” to which Ware looked in the bag and responded “it’s there?” Defendant’s Exhibit Nos. 5 & 5A. Pedrolini replied affirmatively, and Ware placed his black bag in the car. Id. 39. Unbeknownst to Ware and Pedrolini, law enforcement officers observed Ware pacing outside the Days Inn before Pedrolini arrived, Sullivan’s Testimony, and leaning into the hatch of the Pedrolini’s Corvette once he arrived, Sullivan’s and Nelson’s Testimony, which remained open for at least one (1) minute. Sullivan’s Testimony (up to five (5) minutes); Nelson’s Testimony (more than one (1) minute). 40. Pedrolini and Ware drove away from the gas station toward the highway. Ware’s, Sullivan’s, and, Nelson’s Testimony. 41. At approximately 1:27 p.m. on April 24, 1989, Pedrolini’s Corvette, driven by Pedrolini, with Ware as a passenger, was stopped by officers employed by the Pasco County Sheriffs Office. Amended Complaint at ¶ 28; Answer at ¶ 28. 42. Agent Hedges was not at the scene of Ware’s and Pedrolini’s arrest. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). 43. A search of the vehicle resulted in the police uncovering four (4) kilograms of cocaine. Amended Complaint at ¶ 29; Answer at ¶ 29; stipulation in open court. The cocaine was in the same tightly-wrapped condition it was in when Vernoy delivered it to Pedrolini. Defendant’s Exhibit Nos. 25B & C. 44. Prior to being advised of his Miranda rights and arrested, Ware denied knowing Pedrolini to Pasco County Sheriffs Officer Umbaugh. Umbaugh’s Testimony. Ware stated that he had been hitchhiking after visiting his sister in Clearwater, Florida. Id. EVIDENTIARY RULING: Even though these statements were suppressed at Ware’s second criminal trial, they are admissible as to the essential element of lack of probable cause, at all stages of the prosecution up until the motion to suppress was granted. The statements are also admissible as to the Government’s affirmative defense of guilt-in-fact. 45. After the Corvette was stopped and the cocaine was discovered, Ware and Pedrolini were arrested by state law enforcement officers employed by the Pasco County Sheriffs Office for violations of the drug trafficking laws of the State of Florida. Ware and Pedrolini were taken to the Pasco County jail. Amended Complaint at ¶¶ 8 & 30; Answer at ¶¶ 8 & 30. 46. In a post-arrest interview, Ware denied any involvement with the cocaine deal and advised state law enforcement to check the cocaine for fingerprints. Sullivan’s Testimony. Ware did not suggest that the money should be fingerprinted. Id. 47. Sometime after his arrest, Ware telephoned Dirk Bartley and advised him to “get out of the business.” Bartley’s Testimony. EVIDENTIARY RULING: As the Court ruled supra, Dirk Bartley’s testimony is not relevant to any of the essential elements of malicious prosecution. However, it is relevant to the Government’s affirmative defense of guilt-in-fact. At the very least, it shows consciousness of guilt. 48. After his arrest, Pedrolini initially told state law enforcement that he did not know to whom the cocaine in the hatch belonged. Sullivan’s Testimony. Later, Pedrolini changed his statement to knowing about the cocaine because he was delivering it to “Mike,” someone he has met in a bar up North. Nelson’s Testimony. At the time, it was Pedrolini’s intent to protect Ware. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). However, after someone in the jail advised Pedrolini that Ware would leave him “holding the bag,” Pedrolini confessed to Officer Sullivan that he and Ware were partners in the cocaine purchase, the cocaine was for Ware and his “people,” and Ware — the “money man” — was responsible for acquiring and protecting the cash. Id. 49. Soon thereafter, Pedrolini relayed these same statements to Agent Hedges. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). No evidence was introduced regarding whether Pedrolini testified before the federal grand jury. IV. Federal Criminal Case. 50. After the state arrest, the United States Attorney’s Office for the Middle District of Florida, through AUSA Furr, decided to charge Ware and Pedrolini with federal drug offenses and present the case to a federal grand jury sitting in Tampa, Florida. Furr’s Testimony. Agent Hedges was involved in this process. Plaintiff’s Exhibit No. 7 (deposition testimony of Agent Hedges). On or about May 11, 1989, the grand jury returned a true bill indictment in the matter of United States of America v. George Pedrolini and Frank Ware, a/k/a George Pedrocini, Case No. 89-92-Cr-T-15A, charging Ware and Pedrolini with two (2) counts of violations of the Controlled Substances Act, each punishable by ten (10) years or more in prison. The indictment read, in pertinent part: The Grand Jury charges: COUNT ONE From on or about April 1, 1989, until on or about April 24, 1989, in the Middle District of Florida and elsewhere, the defendants ... did intentionally, unlawfully, willfully and knowingly combine, conspire, confederate and agree together and with each other and with and among persons unknown to the Grand Jury to possess with the intent to distribute five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II controlled substance, contrary to the provisions of Title 21, United States code, Section 841(a)(1). All in violation of Title 21, United States Code, Section 846. COUNT TWO On or about April 24, 1989, in the Middle District of Florida, the defendants ... did knowingly, intentionally and unlawfully possess with the intent to distribute five hundred (500) grams or more of a mixture or substance containing a detectable amount of cocaine, a Schedule II Controlled Substance. All in violation of Title 21, United States Code, Sections 841(a)(1), and Title 18, United States Code, Section 2. Defendant’s Exhibit No. IS. The indictment was signed by the grand jury foreperson, AUSA Furr, and Chief AUSA, Criminal Division, Terry A. Zitek. The typewritten name of then — United States Attorney, Robert W. Genzman, also appears on the second page of the indictment. Id. 51. On or about May 11, 1989, following the return of the above grand jury indictment and pursuant to federal arrest warrants issued thereto, Ware and Pedrolini were federally arrested, and subsequently transferred to the Hillsborough County Jail, in Tampa, Florida, pursuant to a contract between the United States Marshals Service and the Hillsborough County Jail for use of the jail facilities for the temporary custody of federal defendants. Amended Complaint at ¶ 31; Answer at ¶ 31. 52. Soon after his federal arrest, Ware requested a meeting with Agent Hedges. Ware’s Testimony. Ware had never met Agent Hedges prior to the federal indictment. Id. Although Ware asked Agent Hedges to look into certain things, their relationship was not an outwardly hostile one. Id. 53. On or about May 18, 1989, Ware and Pedrolini appeared before the Honorable Paul Game, Jr., United States Magistrate Judge, for an initial appearance and detention hearing. Ware was represented at this hearing by then — Assistant Federal Public Defender Mark Pizzo, who objected to the magistrate judge’s basing his order only upon the Government’s proffer of evidence. As such, the Government advanced one (1) witness, FBI Agent Edwards. Agent Edwards was not present at Ware’s arrest. The source of Agent Edwards’ knowledge was various police reports and witnesses. Agent Edwards testified that, upon arrest, the police found approximately one (1) gram of cocaine in the console and approximately four (4) kilograms of cocaine in a travel bag in the rear compartment of the Corvette. Agent Edwards further testified that Pedrolini told the police that Ware was an active participant in the drug deal. After cross examination by AFPD Pizzo, the magistrate judge granted the Government’s motion to detain Ware, finding that: (1) there was probable cause to believe that Ware committed the charged offenses; (2) Ware failed to rebut the statutory presumption of detention; (3) there was a serious risk that Ware would flee; and (4) there was clear and convincing evidence that Ware was a principal in the charged offenses. Defendant’s Exhibit Nos. U & 15. 54. On or about June 6, 1989, Agent Hedges sent a written request to the Identification Division, Latent Fingerprint Section of the FBI in Washington, D.C., to conduct “the necessary latent exams in order to locate fingerprint evidence to assist the Tampa Division in the successful prosecution against Frank Ware to be conducted on or about 6/24/89.” Along with the written request, Agent Hedges forwarded the $54,980.00 in U.S. currency that Pedrolini had delivered to Vernoy in exchange for approximately four (4) kilograms of cocaine. Amended Complaint at ¶ 16; Answer at ¶ 16; Plaintiffs Exhibit No. 1. 55. Agent Hedges asked for a fingerprint analysis on the money to see if it would corroborate Pedrolini’s statement that Ware was the buyer/ “money man.” Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). However, Agent Hedges did not believe that the fingerprint analysis was necessary because the prosecution of Ware would have continued regardless of the results. Id. 56. On or about June 20, 1989, Mr. Marvin Jackson, Esq., court-appointed counsel for Ware’s first criminal trial, filed a motion for Brady material. Criminal Case File, Docket No. 45; Amended Complaint at ¶ U8; Answer at ¶ U8. 57. On or about July 7, 1989, the Latent Fingerprint Section of the Identification Division of the FBI sent a letter to the FBI’s Tampa Resident Agency advising that “sixty-eight [68] fingerprints and two [2] latent palm prints of value were developed on sixty-one [61] of the bills. No latent prints of value were developed on the remaining bills. The latent prints are not the fingerprints or palm prints of Ware.” Amended Complaint at ¶37; Answer at ¶ 17; Plaintiffs Exhibit No. 2; Defendant’s Exhibit No. 35. 58. On or about July 10, 1989 — prior to Ware’s first criminal trial — a copy of the FBI’s Report of Latent Fingerprint Section, Identification Division, was received by the FBI’s Tampa, Florida, field office. Amended Complaint at HJ0; Answer at ¶4-9. This report was filed in the ordinary course of FBI operations within a few days of its receipt. F err ante’s Testimony. It was routed to Agent Hedges and he actually received the report. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). 59. Agent Hedges perceived the FBI fingerprint report to be “negative” because it did not corroborate Pedrolini’s statement that Ware was the cocaine buyer/“money man.” Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). Agent Hedges did not believe that report proved Pedrolini to be a liar. Id. Rather, Agent Hedges opined that Ware’s fingerprints could have been incapable of being developed. Id. 60. Agent Hedges did not examine the report to see if it was exculpatory in nature. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). He did not discuss discovery matters with AUSA Moore. Id. Thus, Agent Hedges did not personally deliver the FBI fingerprint report to AUSA Moore or otherwise expressly advise him of its existence. Id. Rather, in accordance with the standard practice of the FBI at the time, Agent Hedges placed the fingerprint report in the investigative file. Id. 61. AUSA Moore had access to the investigative file that contained the fingerprint report. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges); Furr’s Testimony. AUSA Moore looked in this file prior to Ware’s first criminal trial. Plaintiffs Exhibit No. 7. At the very least, AUSA Moore had constructive knowledge of the fingerprint report. Id. 62. The fingerprint report was not disclosed to Ware or his attorney anytime prior to, or during, the first criminal trial. Ware’s Testimony. 63. Sometime prior to Ware’s first criminal trial, Pedrolini entered into a plea agreement with the Government. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). He promised to testify truthfully in the course of the Government’s prosecution of Ware. Id. In or about October, 1989, Pedrolini’s guilty plea as to Count I of the indictment was accepted by the district court and he was sentenced to seven (7) years and three (3) months in prison. Id. 64. On or about August 7, 1989, Ware’s first criminal trial commenced before the Honorable William J. Castagna, United States District Judge, and a duly constituted twelve (12) person jury. Amended Complaint at ¶ 19; Answer at ¶¶ 4-9-50. 65. AUSA Moore was the prosecutor of record for the first criminal trial. Ware’s Testimony. Agent Hedges was the law enforcement representative who sat at counsel table. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). Pedrolini testified for the prosecution. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Ware was represented by appointed counsel, Marvin Jackson, Esq. Ware’s Testimony. Counsel cross-examined Pedrolini. Id. Officer Umbaugh also testified for the prosecution, and his testimony included Ware’s pre-arrest statements about hitchhiking and visiting his sister in Clear-water. Umbaugh’s Testimony. 66. After the Government rested, Ware testified and was cross-examined by AUSA Moore. Ware’s Testimony. No other defense witnesses were called. Id. No further factual information about the first trial is properly before the Court, in that the transcript was not offered for identification or admitted into evidence. E.g., Clerk’s Minutes (Docket No. 190, listing the transcript of the first criminal trial as a potential defense exhibit). 67. On August 7, 1989, the jury returned a verdict finding Ware guilty of both offenses charged in the indictment, and Judge Castagna adjudicated Ware guilty of said offenses. Judge Castagna subsequently sentenced Ware to serve a term of imprisonment of one hundred thirty-six (136) months. Ware was later transferred from the Hills-borough County Jail to the Federal Correctional Institute in Milan, Michigan. Amended Complaint at ¶ 50; Answer at ¶ 50. This institute is a medium security prison. Ware’s Testimony. 68. On or about March 15, 1991, while incarcerated, Ware submitted a request to the FBI pursuant to the Freedom of Information Act (FOIA). Amended Complaint at ¶ 63; Answer at ¶ 63. 69. In October of 1991, Ware received a response to the FOIA request, including a copy of the July 7, 1989, FBI fingerprint report. Amended Complaint at ¶ 64; Answer at ¶ 64- 70. In December of 1991, Ware filed a motion for writ of error coram nobis with the district court, which was construed as a motion to vacate under 28 U.S.C. § 2255. Amended Complaint at ¶ 66; Answer at ¶ 66; Plaintiffs Exhibit No. 3. Ware argued that he should receive a new trial based on the Government’s failure to disclose the FBI fingerprint report prior to the first criminal trial. See Plaintiffs Exhibit No. 3. 71. In February of 1992, Judge Castagna granted Ware’s motion, vacated his prior conviction and sentence, and ordered a new trial. Amended Complaint at ¶ 67; Answer at ¶ 67; Plaintiffs Exhibit No. 3. Judge Castagna held that (1) the Government’s actions constituted a Brady violation, and (2) there was “a reasonable probability that the jury would have reached a different outcome had it known that none of the sixty eight fingerprints found on the money were Ware’s.” Plaintiffs Exhibit No. 3. 72. On or about May 19, 1992, Ware’s new criminal trial commenced before the Honorable Steven D. Merryday, United States District Judge, and a duly constituted twelve (12) person jury. Amended Complaint at ¶ 68; Answer at ¶ 68. 73. At the second trial, AUSA Moore served again as the prosecutor of record. Ware’s Testimony. Similarly, Agent Hedges was the law enforcement representative who sat at counsel table. Plaintiffs Exhibit No. 7 (deposition testimony of Agent Hedges). Pedrolini testified for the prosecution and was cross-examined by defense counsel. Defendant’s Exhibit Nos. 5 & 5A (deposition testimony of Pedrolini). Pedrolini had received open heart surgery between the first and second criminal trials. Id. Officer Umbaugh was not allowed to testify as to Ware’s pre-arrest statements; they were suppressed by the trial judge. Umbaugh’s Testimony. 74. At the close of the Government’s case-in-chief, Ware moved for a judgment of acquittal pursuant to Fed.R.Crim.P. 29. Defendant’s Exhibit No. 57. Judge Merryday denied the motion, reasoning that Pedrolini’s testimony was sufficient to establish a prima facie ease of the offenses charged in the indictment. Id. 75. Ware was represented by a different attorney at the second trial, Ellen Leesfield, Esq. Ware’s Testimony. The defense called at least five (5) witnesses, one of which was Burgheis. Ware’s Testimony; Plaintiffs Exhibit No. 13. Ware did not testify, although defense counsel was under the impression that he would throughout the Government’s case-in-ehief. Ware’s Testimony. Ware chose not to testify because he did not want Officer Umbaugh to testify about his pre-arrest statements. Id. No further factual information about the first trial is properly before the Court, in that the transcript was not offered for identification or admitted into evidence. E.g., Clerk’s Minutes (Docket No. 190, listing the transcript of the second criminal trial as a potential defense exhibit). 76. On or about May 22, 1992, the jury acquitted Ware of both offenses charged in the indictment and, by order dated May 30, 1992, Judge Merryday adjudicated Ware not guilty of said offenses. Amended Complaint at ¶ 68; Answer at ¶ 68; Plaintiffs Exhibit No. J. 77. Ware was incarcerated for approximately three (3) years and twenty-two (22) days from the time of his initial arrest until his release. Ware’s Testimony. V. Credibility Assessment. 78. In rendering the above findings of fact, the Court has obviously had to resolve conflicts in the testimony and evidence presented. The most significant conflict was the direct contradiction between Ware’s and Pedrolini’s respective testimony. 79. Upon due consideration, the Court finds Pedrolini to be a more credible, truthful witness than plaintiff Ware in all material respects. 80. Time and again Ware’s testimony was impeached with his prior deposition testimony, e.g., Defendant’s Exhibit Nos. Ip5, 51p, & 55, prior inconsistent statements, e.g., Defendant’s Exhibit No. 27, documentary evidence, e.g., Defendant’s Exhibit Nos. 6A 6B, 6C, & 51, and the testimony of multiple defense witnesses who completely contradicted Ware on key aspects of his story, e.g., Calhoun’s, Bartley’s, and Fields’ Testimony. Ware also appeared to be intentionally evasive at times. E.g., Ware’s Testimony on October 16, 1996 (stating that “a lot of this is vague” with regard to Ware’s stay in Florida). Finally, a common sense review of Ware’s testimony reveals disturbing inconsistencies. For example, Ware could not have lawfully afforded his lifestyle and travel habits on the nominal amount of income Ware claimed to have made after leaving General Motors. Ware’s Testimony; see also infra Conclusions of Law ¶ 78. 81. By finding Pedrolini more credible than Ware, the Court is not suggesting that Pedrolini was a perfect witness. He made prior inconsistent statements to law enforcement shortly after his initial arrest. However, Pedrolini took affirmative steps to rectify these false statements. More importantly, Pedrolini’s deposition testimony, Defendant’s Exhibit Nos. 5 & 5A, is materially consistent with his prior court testimony and is corroborated by the testimony of other witnesses. 82. Contrary to Ware’s assertion, the FBI fingerprint report does not render Pedrolini’s testimony incredible as a matter of law. Consistent with Judge Castagna’s order granting Ware a new trial, Plaintiff’s Exhibit No. S, and this Court’s prior ruling that the report was exculpatory Brady material, the jury in Ware’s second criminal trial may very well have found reasonable doubt in Pedrolini’s testimony after comparing it to the fingerprint report. On the other hand, the fingerprint report may have had little or no impact on the jury’s decision to acquit Ware. One can only speculate as to the report’s actual impact on the jury because it was one of many differences between the first and second criminal trials. 83. Regardless of the jury’s evaluation of the evidence introduced in the second criminal trial, this Court, as the trier of fact of this civil case, finds that, while the FBI report may not have bolstered Pedrolini’s credibility, it certainly did not erode Pedrolini’s credibility to the degree that his testimony becomes less credible than Ware’s. As opined by ATF fingerprint specialist Richard Canty, there are many legitimate, scientific obstacles to retrieving latent prints from currency that has been widely circulated. Canty’s Testimony. Cash, in general, is a poor medium for fingerprints. Id. This is especially true where, as here, stacks of bundled cash are handled by a person’s fingertips on the ends of the bills. Id. Therefore, Pedrolini’s testimony that Ware acquired the money and that Ware had counted it in its bundled form is not inconsistent with the FBI’s conclusion that none of the sixty-eight (68) latent prints discovered on the cash were Ware’s. EVIDENTIARY RULING: At trial, Ware objected to Canty’s testimony, on the grounds'that it was irrelevant in light of the Court’s determination that the fingerprint report was Brady material. The Court deferred ruling. Ware’s objection is hereby OVERRULED. 84.To the extent not discussed above, the Court resolved conflicts in the evidence in favor of the witness(es) and/or exhibit(s) cited after the corresponding finding of fact. Contradictory, uncited witnesses and exhibits were rejected by the Court as less credible than those cited (and those uncited but corroborative). CONCLUSIONS OF LAW Ware seeks damages from the Government under the Federal Tort Claims Act, 28 U.S.C. § 2671, et seq. Specifically, Ware alleges that the Government committed the tort of malicious continuation of prosecution, as defined by Florida law, through the acts and/or omissions of FBI Agent Hedges. The Government disputes liability on the elements, raises the affirmative defense of guilt-in-fact, and moves to dismiss for failure to exhaust administrative remedies. 1. This Court has original and exclusive jurisdiction over this case pursuant to 28 U.S.C. §§ 1331, 1346(b); Venue is proper pursuant to 28 U.S.C. § 1391(b)(2), (e)(2). 2. Florida common law governs all substantive aspects of Ware’s claim for malicious continuation of prosecution, including any affirmative defenses, in that the alleged tortious conduct occurred in the State of Florida. 28 U.S.C. § 1346(b). I. The Elements of Malicious Continuation of Prosecution. 3. As recently restated by the Supreme Court of Florida: In order to prevalí in a malicious prosecution action, a plaintiff must establish that: an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued; (2) the present defendant was the legal cause of the original proceeding against the present plaintiff as the defendant in the original proceeding; (3) the termination of the original proceeding constituted a bona fide termination of that proceeding in favor of the present plaintiff; (4) there was an absence of probable cause for the original proceeding; (5) there was malice on the part of the present defendant; and (6) the plaintiff suffered damage as a result of the original proceeding. Alamo Rent-A-Car, Inc. v. Mancusi, 632 So.2d 1352, 1355 (Fla.1994). The failure of Ware to establish any one (1) of these six (6) elements is fatal to his claim. Id. 4. As to all six (6) elements, Ware bears the burden of proof, the standard of which is a preponderance of competent evidence. E.g., Phelan v. City of Coral Gables, 415 So.2d 1292, 1294 (Fla. 3d DCA 1982). 5. Although Ware asserts a claim for “malicious continuation of prosecution,” the Court will construe this claim as one for “malicious prosecution,” as it is more commonly referred to under Florida common law. The only discernable difference between the two (2) torts is that the former focuses on the continuation of an original criminal proceeding, while the latter focuses on the commencement of the proceeding. See Alamo, 632 So.2d at 1355; see also Harris v. Lewis State Bank, 482 So.2d 1378, 1381 (Fla. 1st DCA 1986) (noting that a defendant may be liable for malicious prosecution if he “continued the prosecution or gave it momentum”) (emphasis added); cf. Dirienzo v. United States, 690 F.Supp. 1149 (D.Conn.1988) (involving the tort of malicious continuation of prosecution, as defined by New York law). Because Ware “does not make a claim for malicious prosecution with respect to the initiation of the proceedings against him,” 838 F.Supp. at 1563, the Court will temporally adjust its analysis to the extent that this distinction merits it. A. Original Criminal Proceeding. 6. Ware proved the first element, that “an original criminal or civil judicial proceeding against the present plaintiff was commenced or continued.” Alamo, 632 So.2d at 1355. Criminal proceedings against Ware commenced on May 11, 1989, when the grand jury returned an indictment. See Miami Herald Publishing Co. v. Ferre, 636 F.Supp. 970, 978 (S.D.Fla.1985). These proceedings continued through the first criminal trial and conviction until May 22, 1992, when the second jury acquitted Ware of the offenses charged in the indictment. B. Legal Cause. 7. Ware proved the second element, that the Government was the legal cause of the criminal proceedings against him. As the Court previously emphasized, the Government’s liability hinges on the legal significance of Agent Hedges’ acts and/or omissions. 838 F.Supp. at 1563-64. The issue, then, is whether Agent Hedges’ conduct was “the proximate and efficient cause of putting the law in motion.” Harris v. Lewis State Bank, 482 So.2d 1378, 1381 (Fla. 1st DCA 1986). The parties do not, and cannot, seriously dispute the fact that Agent Hedges played a key role in Ware’s prosecution. Agent Hedges made the decision to “do the sting” on co-defendant Pedrolini, planned it, and coordinated efforts with the local sheriffs office to arrest him. Although Agent Hedges was not at the scene of Ware’s arrest, he obtained the money that Pedrolini had delivered to Von Reese and eventually sent it to the FBI in Washington for a fingerprint analysis. The results of the fingerprint analysis, revealing that none of the latent prints were Ware’s, were directed to the attention of Agent Hedges. 8. Basically, Agent Hedges produced and gathered the Government’s evidence against Ware. His active, pivotal role in both the investigation and prosecution of Ware is corroborated by the fact that he sat at counsel table during both criminal trials. It is true that the lead prosecutor, AUSA Dennis Moore, ultimately controlled the trial and prosecution of Ware on behalf of the Government. See Dirienzo v. United States, 690 F.Supp. 1149, 1158 (D.Conn.1988) (citing Restatement (2d) Torts § 655, cmmt. c (1977), but otherwise applying New York law). However, the Government cannot escape liability simply because Agent Hedges “was not the prosecutor of record.” Harris, 482 So.2d at 1381. Because of his “active part in the proceedings,” Dirienzo, 690 F.Supp. at 1158, the Court concludes that Agent Hedges (and thus the Government) was the legal cause of the criminal proceedings against Ware. C. Favorable Termination. 9. It is undisputed that Ware proved the third element, that the termination of the criminal proceeding constituted a bona fide termination of that proceeding in his favor. On May 22, 1992, a jury acquitted Ware of both drug offenses and, by order dated May 30, 1992, U.S. District Judge Merryday adjudicated him not guilty. Plaintiff’s Exhibit No. I. D. Absence of Probable Cause. 10. Ware failed to prove the fourth element, that “there was an absence of probable cause for the original proceeding.” Alamo, 632 So.2d at 1355. The plaintiffs burden of proof in an action for malicious prosecution has been described as a “heavy” one. Burns v. GCC Beverages, Inc., 502 So.2d 1217, 1219 (Fla.1986). This adjective is especially appropriate, in that the plaintiffs burden of proof “includes the onerous requirement of proving that the criminal proceeding was initiated by the defendant without probable cause, i.e., without a reasonable ground of suspicion, supported by circumstances sufficiently strong in themselves to warrant a cautious man in the belief that the person accused is guilty of the offense with which he is charged.” Id. 11.The first issue with regard to this element is at what stage of the criminal proceedings should the Court analyze probable cause. Ware argues that, for purposes of his claim, the appropriate point in time is “the eve of his first trial,” rather than the initiation of criminal proceedings. (Docket No. 224, p.27). The Government does not point to a particular point in time, but responses that, at all times during Ware’s prosecution, probable cause existed. (Docket No. 226, p.17). Ware maintains, however, that any information acquired by Agent Hedges after the first jury was impaneled should not be considered in the instant probable cause determination. 12. Inherent in the phrase malicious continuation of prosecution is the notion that probable cause must be lacking at all stages of the prosecution, from indictment to acquittal, in order for the present plaintiff to prevail. The Court, therefore, disagrees with Ware’s position that the only pertinent probable cause determination is at the eve of the first criminal trial. However, the Court concurs with Ware that any information acquired by the Government after his criminal acquittal, such as evidence regarding Ware’s character and reputation, is irrelevant to the probable cause element. 13. Accordingly, the Court will analyze probable cause at all distinct stages of the Government’s prosecution of Ware. (i) Indictment. 14. First, the Court concludes that there was probable cause to prosecute Ware at the time the grand jury returned the indictment and commanded his arrest. 15. Because federal grand jury proceedings are ex parte, Fed.R.Crim.P. 6(e), the return of an indictment is prima facie evidence of probable cause in an action for malicious prosecution. See Burns v. GCC Beverage