Ghassan Bouari v. United States

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 7 2023 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT GHASSAN HOUBOUS BOUARI, No. 21-16762 Plaintiff-Appellant, D.C. No. 2:21-cv-00226-JCM-VCF v. UNITED STATES OF AMERICA, MEMORANDUM* Defendant-Appellee.

GHASSAN HOUBOUS BOUARI, No. 21-16763 Plaintiff-Appellant, D.C. No. 2:18-cv-00219-JCM-BNW v. UNITED STATES OF AMERICA; CHARLES RO, FBI; DENNIS LAO, FBI; ELENA IATAROLA, FBI, Defendants-Appellees.

Appeal from the United States District Court for the District of Nevada James C. Mahan, District Judge, Presiding Argued and Submitted December 9, 2022 Pasadena, California

Before: BERZON, R. NELSON, and BADE, Circuit Judges.

Dissent by Judge BERZON.

In these two cases, consolidated for appeal,1 Appellant Ghassan Houbous Bouari asserted malicious prosecution and intentional infliction of emotional distress (IIED) claims against the United States under the Federal Tort Claims Act (FTCA), and Fourth Amendment unlawful seizure claims against two FBI agents under Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 388 (1972). In both cases, Bouari alleged that he was arrested, indicted, and held in pretrial detention for 560 days without probable cause before the government dismissed the charges against him.2 The government moved to dismiss Bouari’s FTCA and Bivens claims, and the district court granted both motions. Bouari timely appealed. We review a district court’s grant of a motion to dismiss de novo, Vega v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018), and we affirm.

“Want of probable cause” is a necessary element of Bouari’s malicious prosecution claims. See Thompson v. Clark, 142 S. Ct. 1332, 1337–38 (2022) (requiring “wrongful initiation of charges without probable cause” for constitutional malicious prosecution claim); Jordan v. Bailey, 944 P.2d 828, 834 (Nev. 1997) (requiring “want of probable cause” for the Nevada tort of malicious prosecution).

The district court found that the facts, as alleged in Bouari’s complaints, constituted probable cause to prosecute him.

We agree. Bouari was charged with two counts in the indictment.3 Count Twelve charged Bouari and his half-brother (the primary defendant in the scheme) with money laundering and “aiding and abetting one another and others.”4 Aiding and abetting under 18 U.S.C. § 2 requires “(1) that the accused had the specific intent to facilitate the commission of a crime by another, (2) that the accused had the requisite intent of the underlying substantive offense, (3) that the accused assisted or participated in the commission of the underlying substantive offense, and (4) that someone committed the underlying substantive offense.” United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988). “Intent [to aid and abet a crime] can be inferred from circumstantial evidence.” United States v. Vaccaro, 816 F.2d 443, 455 (9th Cir. 1987), abrogated on other grounds by Huddleston v. United States, 485 U.S. 681 (1988).

Count Thirteen charged Bouari and others with conspiracy to commit money laundering. Money laundering conspiracy under 18 U.S.C. § 1956(h) requires (1) an agreement to commit money laundering; (2) that the defendant knew the objective of the agreement; and (3) that the defendant joined the agreement with the intent to further its unlawful purpose. United States v. Jaimez, 45 F.4th 1118, 1124 (9th Cir. 2022). “A defendant’s knowledge of and participation in a conspiracy may be inferred from circumstantial evidence and from evidence of the defendant’s actions.”

United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir. 1980).

Bouari acknowledges that he brought a money counting machine to his half-brother’s hotel room where $60,000 in illicit funds were counted. And he remained in the hotel room after bringing the money counting machine while the money was counted. As the district court found, these facts, as alleged by Bouari, are sufficient evidence to find that probable cause supported the charges that Bouari committed aiding and abetting money laundering, and conspiracy to commit money laundering, as alleged in Counts Twelve and Thirteen of the indictment.5

Bouari argues that the district court erred in finding probable cause supported the charges because aiding and abetting and conspiracy require that the defendant had the intent necessary to commit the underlying offense—money laundering—and he did not have that intent. But the intent required for aiding and abetting or conspiracy can be satisfied with circumstantial evidence. Vaccaro, 816 F.2d at 455; Batimana, 623 F.2d at 1368. And a finding of probable cause does not require evidence sufficient to support a conviction. See District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (“[Probable cause] requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.” (internal quotation marks and citation omitted)). Moreover, the intent “to promote the carrying on of specified unlawful activity” or the intent “to conceal or disguise . . . property believed to be the proceeds of specified unlawful activity” is sufficient for the underlying money laundering offense. 18 U.S.C. § 1956(a)(3)(A)–(B). Bouari’s actions constitute circumstantial evidence to supply probable cause to believe that Bouari had this intent. 6 Contrary to the dissent’s assertion, Bouari’s actions are, at probable cause, we also hold that the district court did not abuse its discretion by judicially noticing this statement because the district court noticed the statement only for its existence and not for what it asserted. See Khoja, 899 F.3d at 999–1001; Lee v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001). a minimum, “slight, even marginal” evidence to “create a reasonable inference” that Bouari had this intent—and that is enough for probable cause. State v. Boueri, 672 P.2d 33, 36 (Nev. 1983); see also Vaccaro, 816 F.2d at 455; McFadden v. United States, 576 U.S. 186, 192 n.1 (2015) (mental state can be proven based on circumstantial evidence, including the suspect’s actions).

Like the district court, we also find that Bouari’s IIED claim fails because IIED requires extreme and outrageous conduct. See Miller v. Jones, 970 P.2d 571, 577 (Nev. 1998) (stating the elements of an IIED claim under Nevada law). Here, however, Bouari’s arrest, subsequent indictment, and pretrial detention were not extreme and outrageous because the prosecution was based on probable cause.

Likewise, because there was probable cause, we need not reach the question of whether Bouari’s Bivens claim for Fourth Amendment malicious prosecution is cognizable or whether the agents were entitled to qualified immunity.

AFFIRMED.

(“A defendant can be convicted as an aider and abettor without proof that he participated in each and every element of the offense.” (cleaned up)); Salinas v. United States, 522 U.S. 52, 64 (1997) (“A person, moreover, may be liable for conspiracy even though he was incapable of committing the substantive offense.”).

FILED Ghassan Houbous Bouari v. United States of America, Nos. 21-16762, 21-16763 FEB 7 2023 BERZON, Circuit Judge, dissenting: MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS I respectfully dissent.

The government did not establish probable cause for the aiding and abetting and conspiracy charges against Bouari. Not “enough evidence [was presented] to create a reasonable inference” that Bouari had the requisite intent under the applicable statutes. State v. Boueri, 99 Nev. 790, 795 (1983).

To be criminally liable for aiding and abetting or conspiracy, a defendant must have the same intent as that necessary for the underlying substantive offense.

See United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988); United States v. Collazo, 984 F.3d 1308, 1320 (9th Cir. 2021). 18 U.S.C. § 1956(a)(3) states that an individual convicted of money laundering must either have the intent “to promote the carrying on of specified unlawful activity” or the intent “to conceal or disguise . . . property believed to be the proceeds of specified unlawful activity” (emphasis added).1 The statute defines the term “specified unlawful activity,” listing the qualifying crimes at 18 U.S.C. § 1956(c)(7). There is no evidence sufficient to support probable cause that Bouari knew that the money at issue was derived from drug trafficking and sex trafficking, the unlawful activities specified by the government in the indictment.

Bouari’s complaint alleged that he did not have any knowledge regarding a specified unlawful activity that generated the funds, and that Ro and Lao had fabricated testimony that Bouari “had been informed that the funds were derived from a specified unlawful activity.” Bouari’s actions with respect to the money counting machine alone do not supply probable cause that Bouari intended to promote drug and sex trafficking or intended to conceal the proceeds of drug and sex trafficking activities. His half-brother’s judicially noticed statements make no reference to any specified unlawful activity and so do not change the calculus. And the government cannot rely on the presumption of probable cause created by the grand jury indictment, because Bouari alleged that the indictment was predicated on false testimony and that there was no other evidence that he knew about the specified unlawful activity. See Manuel v. City of Joliet, 580 U.S. 357, 367 (2017).

Bouari has thus sufficiently demonstrated at this stage in the proceedings that the government lacked probable cause for the aiding and abetting and conspiracy charges against him.

The government’s substantive money laundering theory fares no better. 2 In addition to failing to demonstrate that Bouari possessed the requisite specific intent (as I have explained), the government did not show that a law enforcement officer or an officer’s designee represented to Bouari that that the money was the product of specified unlawful activity, as required by the statute.3 See 18 U.S.C. § 1956(a)(3). Lacking probable cause for two required elements of the substantive theory of the offense, the government did not have sufficient evidence to charge Bouari on that theory on the facts alleged.

For these reasons, I would vacate the district court’s order dismissing Bouari’s FTCA lawsuit and remand for further proceedings.