
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 97-1983                                   JOSEPH BARBIONI,                                Plaintiff, Appellant,                                          v.                          UNITED STATES OF AMERICA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. Morton A. Brody, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                                 Selya, Circuit Judge,                                        _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Boudin, Circuit Judge.                                          _____________                                 ____________________            Joseph  M.  Jabar  and  Daviau,  Jabar  &  Batten  on  brief   for            _________________       _________________________        appellant.            Jay  P.  McCloskey,  United  States  Attorney,  Frank  W.  Hunger,            __________________                              _________________        Assistant Attorney General,  Barbara C. Biddle and  Jennifer H. Zacks,                                     _________________      _________________        Department of Justice, Civil Division, on brief for appellees.                                  ____________________                                   December 9, 1997                                 ____________________                      Per Curiam.   After careful review of  the parties'                      __________            submissions and the record on  appeal, we affirm the decision            below  granting  judgment  for the  defendant.1    On appeal,                                                          1            appellant  Joseph  Barbioni   ("Barbioni")  argues  that  the            decision to pursue  a criminal investigation  and prosecution            against him was improper and entitled him to relief under the            Federal Tort Claims Act ("FTCA"), 28 U.S.C.   2674, given the            alleged  fact that  two  witness  interviews  may  have  been            conducted  in  an  inappropriate  manner.    But  even  where            discretion  has been  abused, 28  U.S.C.    2680(a)  protects            those   acts   which   constitute   the   performance   of  a            discretionary function.   This court has  made it clear  that            the decision  to investigate  and/or prosecute an  individual            falls squarely  within the discretionary  function exception.            See,  e.g.,  Horta  v.  Sullivan,  4 F.3d  2,  21  (1st  Cir.            ___   ____   ___________________            1993)("[A]lthough  law enforcement  agents  have a  mandatory            duty to enforce the law, decisions as to how  best to fulfill            that  duty  are  protected  by  the  discretionary   function            exception  to the FTCA.");  Kelly v. United  States, 924 F.2d                                        _______________________            355,  362 (1st Cir. 1991)("Since decisions to investigate, or            not,  are at  the core  of law  enforcement activity,  the []                                            ____________________               1The government  suggests the court  lacks jurisdiction to               1            hear this  appeal under  28 U.S.C.    1291, but  we interpret            Barbioni's  statements in his "Motion to  Alter (Rule 59)" as            an abandonment of  any claims which may have  been pending at            the time he filed that  pleading.  Thus, the district court's            "Judgment" was a  final judgment, as required by  28 U.S.C.              1291.                                         -2-            challenged  conduct involved  precisely the  kind of  policy-            rooted decisionmaking that  section 2680(a)  was designed  to            safeguard.").     Even  an   allegation  that   investigators            intimidated  and coerced witnesses will not alter the outcome            of a target's FTCA claim.  Moore v. Valder, 65 F.3d 189, 196-                                       _______________            97 (D.C. Cir. 1995).                 We  do not  address  whether  the malicious  prosecution            claim otherwise would have had merit.                 Affirmed.  Loc. R. 27.1.                 _________                                         -3-
