                            In the

United States Court of Appeals
              For the Seventh Circuit

No. 07-3331

Y UMING D ENG ,
                                               Plaintiff-Appellant,
                                v.

S EARS, R OEBUCK AND C O .,
                                              Defendant-Appellee.


        Appeal from the United States District Court for the
          Northern District of Illinois, Eastern Division.
            No. 04 C 6571—Joan B. Gottschall, Judge.



   A RGUED S EPTEMBER 11, 2008—D ECIDED JANUARY 5, 2009




  Before E ASTERBROOK, Chief Judge, and P OSNER and
E VANS, Circuit Judges.
  E ASTERBROOK , Chief Judge.    Yuming Deng was a
statistical modeler at Sears Roebuck. His job was to de-
velop software and compile data that could be analyzed
to shed light on which customers should be extended
how much credit. In February 2001 his supervisors
gave Deng a performance review that he deemed unwar-
ranted. Tempers flared, and Deng soon stopped working,
2                                              No. 07-3331

claiming to be disabled. But while on leave he
repeatedly came to his office, only to be ushered out,
because Sears forbids persons on leave to come to work
(something that they are supposedly unable to do). Deng
once threatened a supervisor before departing—and he
continued to pay surreptitious visits. On one of these,
shortly before he quit, Deng deleted a great deal of data
and the models he had been using to analyze the infor-
mation. When Deng’s supervisor discovered the deletions,
Sears had much of the material restored from backup
tapes, but Sears could not tell whether the restoration
was complete—and the restoration not only was costly
(Sears estimates that $40,000 to $50,000 in labor and
computer time went into the task) but also delayed
projects that Deng’s co-workers were conducting using
these data and models.
   Supervisors concluded that Deng had erased the infor-
mation in retaliation for the bad review and asked
Marc Peskin, Sears’s Manager of Corporate Investigations,
to look into the affair. Peskin concluded that Deng had
maliciously destroyed valuable data and reported the
matter to the police in Hoffman Estates, Illinois, where
Deng had been employed. Detective Carl Baumert con-
cluded that Deng had violated 720 ILCS 5/16D-3(a)(3),
which prohibits tampering with computer files without
the permission of the files’ owner. (Deng had not asked
for permission to delete these files.) Baumert tried to
discuss the subject with Deng, but he left Illinois without
notifying Baumert (or anyone at Sears) of his new ad-
dress. A prosecutor agreed with Baumert’s assessment and
filed formal charges. Eighteen months later Deng
No. 07-3331                                               3

was found in Massachusetts, arrested on a bench war-
rant, and returned to Illinois—where the charge was
dismissed at the preliminary hearing after a witness failed
to appear. The prosecutor asked the judge to continue
the hearing; when the judge refused, the prosecutor filed
a nolle prosequi and turned the papers over to another
Assistant State’s Attorney. Deng still could have been
indicted (a preliminary hearing is necessary in Illinois
only when the prosecutor wants to avoid presenting
the case to a grand jury), but was not.
  Deng then turned the tables and sued Sears for
malicious prosecution. The parties are of diverse citi-
zenship, and the stakes exceed $75,000, so 28 U.S.C. §1332
permits the suit to be filed in federal court. Illinois
law governs. To prevail, Deng must show (among other
things) that the criminal case ended in his favor, that the
charge was not supported by probable cause, and that the
accuser made the charge with malice. See Swick v. Liautaud,
169 Ill. 2d 504, 512, 662 N.E.2d 1238, 1242 (1996). A dis-
missal is a favorable disposition—if the charge is not
refiled, as this was not—in the sense that the criminal
prosecution is over. But Swick holds that a dismissal by
way of a nolle prosequi does not count as “favorable” to the
accused if “the abandonment is for reasons not indicative
of the innocence of the accused.” 169 Ill. 2d at 513, 662
N.E.2d at 1243. The district court concluded that the
prosecutor dismissed the charge against Deng because
the state judge had declined to grant a continuance, not
because the prosecutor had come to think Deng innocent.
That led to a grant of summary judgment in Sears’s favor.
4                                               No. 07-3331

  As Deng sees matters, a statement in Swick that the
court “adopt[s]” the discussion of favorable termination
in Restatement (Second) of Torts §660 (1977) means that a
dismissal must be taken as favorable to the accused
unless one of the four particular contra-indications men-
tioned in §660 has been established. None of these
four—compromise with the accused, misconduct by
the accused designed to avert a trial, mercy requested
by the accused, or the reinstitution of charges following
the dismissal—occurred here and therefore, Deng insists,
he is entitled to prevail on this subject. But a restatement
is not a statute; it summarizes doctrines already
articulated but does not freeze the development of the
common law. Nothing in §660 or anywhere else in the
Restatement (Second) of Torts says that the dismissal of
charges when a witness does not appear at a preliminary
hearing must be treated as a resolution favorable to the
accused. This is an open question in Illinois.
  One may doubt whether it is sensible to answer the
question. If criminal charges are dismissed and never
reinstated, the accused has won. A technical knockout is
a knockout nonetheless. The former accused still must
demonstrate the absence of probable cause, and the
presence of malice, to win the civil suit. When these
things can be established, it is most likely that the crim-
inal charges were dismissed because the prosecutor
could not win. How is the prosecutor going to show guilt
beyond a reasonable doubt, when the charge is not sup-
ported by probable cause? But Illinois has not taken
the simplifying step of treating all favorable dismissals
the same, and the ambiguous formulation in Swick
No. 07-3331                                                5

creates potential problems. How can a judge or jury tell
whether the dismissal is “indicative of the innocence of the
accused”? A prosecutor may dismiss without giving
reasons (as happened here), and a statement in open
court may not be comprehensive or tailored to the stan-
dards of later tort litigation. Deng dragged the prosecutor
through a deposition, an intrusion on the prosecutorial
function. The prosecutor gave the “lack of continuance”
reason; Deng counters that the prosecutor was a
computer illiterate and unable to distinguish good
charges from bad. It is hard to believe that Illinois really
wants its criminal prosecutors subjected to this kind of
inquisition, or that a federal district judge should be
opining on an Assistant State’s Attorney’s competence
and the reasons for an exercise of prosecutorial discretion.
  A federal court cannot take Ockham’s Razor and slice
Swick’s approach out of Illinois law. Swick takes sides on
a subject that has divided the states; we must respect its
choice. But we can avoid Swick’s complexities by skipping
to the probable-cause question, for if the charge was
supported by probable cause then other issues do not
matter. Deng contends that we must pretermit this
subject, because his opening brief did not broach it, but
that misunderstands federal appellate practice. As the
prevailing party, Sears may defend its judgment on any
ground preserved in the district court, as this ground
was, whether or not the district judge addressed the
point. See Massachusetts Mutual Life Insurance Co. v. Ludwig,
426 U.S. 479 (1976); Jordan v. Duff & Phelps, Inc., 815
F.2d 429, 439 (7th Cir. 1987).
6                                               No. 07-3331

   The facts stated in this opinion’s first paragraph estab-
lish probable cause to believe that Deng, a disaffected
employee, erased valuable data on his way out the door.
Deng contends that this impression is mistaken—that
Sears’s statistical modelers are not only authorized but
also expected to delete information that has served its
purpose, in order to free up space on the company’s
servers. One problem with this perspective is that Deng,
who was on leave, could not know whether his super-
visors and co-workers were still using, or planning to use,
the data he erased—he did not ask anyone. Nothing in
this record would permit a jury to find that Deng’s superi-
ors at Sears believed that all of the information he
erased was no longer useful; if they believed that, why
spend $40,000 or more to restore it?
  A second problem is that, because Deng was on leave,
he was not supposed to be at the office in the first place
and therefore was not authorized to perform any act at
all with or to the data. A third problem is that probable
cause is an objective concept. See Whren v. United States,
517 U.S. 806 (1996). A person’s ability to explain away
seemingly damning facts does not negate the existence
of probable cause, even though it might provide a good
defense should the case go to trial.
   Deng left Illinois shortly after deleting the data, and
flight adds to the impression that a crime has been com-
mitted. See Illinois v. Wardlow, 528 U.S. 119, 124–25 (2000).
Detective Baumert invited Deng to tell his side of the
story; he did not use the opportunity and is in no position
to complain that Sears, the police, and the prosecutor all
drew inferences against him.
No. 07-3331                                           7

  Deng’s other arguments have been considered but do not
require discussion. The judgment is
                                              AFFIRMED




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