                                                             United States Court of Appeals
                                                                      Fifth Circuit
                                                                   F I L E D
                    UNITED STATES COURT OF APPEALS                December 11, 2003
                         FOR THE FIFTH CIRCUIT
                                                               Charles R. Fulbruge III
                        _______________________                        Clerk

                              No. 02-10954
                        _______________________


                           RONALD A. HAMILTON,

                                                    Plaintiff - Appellee,

                                  versus


                          J.D. COLLETT; ET AL,

                                                                Defendants,

                    J.D. COLLETT; JEFFREY RAMIREZ,

                                                Defendants - Appellants.


             Appeals from the United States District Court
         For the Northern District of Texas - Dallas Division
                        Civil Action No. 00-1469



Before GARWOOD, JONES, and STEWART, Circuit Judges.

EDITH H. JONES, Circuit Judge:*

            Plaintiff-appellee Ronald Hamilton sued Dallas police

officer J.D. Collett and FBI agent Jeffrey Ramirez under 42 U.S.C.

§ 1983 and its constitutional counterpart, Bivens v. Six Unknown

Named Agents, 403 U.S. 388 (1971), for false arrest and malicious



     *
            Pursuant to 5TH CIR. R. 47.5, the Court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5TH CIR. R. 47.5.4.
prosecution in violation of the Fourth and Fourteenth Amendments to

the United States Constitution.          Defendants filed a motion for

summary judgment arguing, inter alia, that Hamilton could not prove

the elements of his civil rights claim or overcome the defendants’

qualified immunity defense.     The district court denied the motion,

and the defendants now appeal.      Because we find that the malicious

prosecution claim must be dismissed and that both defendants are

entitled to qualified immunity for the false arrest claim, we

reverse the district court and enter summary judgment on the

defendants’ behalf.

                           I.   BACKGROUND

          The facts underlying this case have been extensively

reported by this court in United States v. Truesdale, 152 F.3d 443

(5th Cir. 1998), and will not be repeated here.         Briefly, Hamilton

was   arrested   and   prosecuted       on   various   conspiracy,   money

laundering, travel in aid of racketeering, and gambling counts

related to his involvement with World Sportsbook (“WSB”), an

international sports wagering operation.          After a jury convicted

Hamilton on multiple counts, a panel of this court reversed his

conviction on a finding of insufficient evidence.

          Hamilton then initiated the instant suit, asserting that

the defendants made a number of false statements that led to his

arrest and prosecution.     Specifically, Hamilton complains that

Agent Ramirez falsely testified before the federal grand jury that



                                    2
an illegal bet was placed with another FBI agent during a search of

Hamilton’s residence.         Likewise, Hamilton contends that Collett

falsely swore in an affidavit before a Dallas County grand jury

that   bets    were   taken   at   Hamilton’s   home   during   the   search.

Hamilton argues that because no bets were actually taken during the

search of his residence, probable cause is destroyed and the

defendants violated his clearly established constitutional rights.

                II.   JURISDICTION AND STANDARD OF REVIEW

              Hamilton asserts that this court lacks jurisdiction over

this interlocutory appeal because the district court concluded that

genuine issues of material fact exist.           However, this court has

jurisdiction to consider the purely legal question of whether,

taking the plaintiff’s version of the facts as true, the plaintiff

has alleged a violation of clearly established law.             Roe v. Tex.

Dep’t of Protective & Regulatory Serv., 299 F.3d 395, 400 (5th Cir.

2002).

              This court reviews the district court’s denial of a

summary judgment motion based on a claim of qualified immunity

de novo.      Hatfield v. Scott, 306 F.3d 223, 226 (5th Cir. 2002).

Determining probable cause is a mixed question of law and fact:

“[a]lthough factual findings are reviewed for clear error, we

review the legal conclusions reached by the district court de

novo.”   Gordy v. Burns, 294 F.3d 722, 729 (5th Cir. 2002).




                                       3
                            III.    DISCUSSION

                       A.   Malicious Prosecution

           Hamilton argues that the defendants’ false statements

caused him to be maliciously prosecuted in violation of the United

States Constitution.    However, this court has recently held that a

claim of malicious prosecution standing alone does not violate the

United States Constitution.        Castellano v. Fragozo, No. 00-50591,

2003 WL 22881590, at *1 (5th Cir. Dec. 5, 2003)(en banc).                   Thus,

Hamilton   cannot   establish      that      the     defendants    violated      his

constitutional   rights     in   this       regard   and   the    claim   must   be

dismissed.

                            B.    False Arrest

           The key inquiry in the false arrest context is whether

the officers are entitled to qualified immunity.                 Courts engage in

a two-step analysis when determining if public officials are

entitled to qualified immunity.         First, we must determine whether

the facts, as the plaintiff alleges, establish that the officer

violated a constitutional right. Price v. Roark, 256 F.3d 364, 369

(5th Cir. 2001). If no constitutional right has been violated, the

inquiry ends and the defendants are entitled to qualified immunity.

Id.   However, if the plaintiff has alleged a constitutional viola-

tion, the court must next determine whether the right was clearly

established at the time of the alleged violation.                 Id.



                                        4
           A claim of unconstitutional false arrest requires a

showing of no probable cause.   Brown v. Lyford, 243 F.3d 185, 189

(5th Cir. 2001).   The question presented here is whether, setting

aside the allegedly false testimony by the defendants, probable

cause existed to believe that Hamilton committed an offense.    See

Freeman v. County of Bexar, 210 F.3d 550, 553 (5th Cir. 2000).

Stated another way, the question is whether the allegedly false

testimony was necessary to the Magistrate Judge’s determination of

probable case. See, e.g., Franks v. Delaware, 438 U.S. 154, 171-72

(1978).   “[T]he probable cause analysis only requires that we find

a basis for an officer to believe to a ‘fair probability’ that a

violation occurred.”   Piazza v. Mayne, 217 F.3d 239, 246 (5th Cir.

2000).

           The evidence known to both Collett and Ramirez, excluding

that evidence which Hamilton alleges to be false, established

probable cause as a matter of law.   The defendants were aware of,

inter alia, the following pertinent facts:        (1) Hamilton was

identified as an advertising agent for WSB in a letter to potential

bettors; (2) Hamilton established a bonding system for the bettors

he referred to WSB; (3) Hamilton possessed a tally sheet of bets

placed with WSB; (4) Hamilton would pick up bettors’ Western Union

transfers and deposit them in various Dallas bank accounts; and

(5) payoffs to winners were made from Dallas-area bank accounts

belonging to Hamilton.   A reasonable basis existed for Collett and


                                 5
Ramirez to find a fair probability that a violation of Texas

gambling laws occurred.1

            It is also important to note that in ruling on Hamilton’s

motion to suppress, a district court judge found that probable

cause existed to believe Hamilton was involved in illegal gambling.

Specifically, the district court judge concluded that, based on the

letter identifying Hamilton as WSB’s advertising agent, his “link

to WSB’s illegal gambling operation is clear.”              Because probable

cause existed, even absent the allegedly false statements, the

defendants did not violate Hamilton’s constitutional rights and are

therefore entitled to qualified immunity.

                              III.   CONCLUSION

            For the foregoing reasons, the judgment of the district

court is REVERSED, and the case is REMANDED for entry of judgment

in favor of the defendants.

REVERSED and REMANDED.



      1
            The Texas gambling law to which both officers referred in their
testimony is Section 47.03(a)(2) of the Texas Penal Code, which provides that
“[a] person commits an offense if he intentionally or knowingly. . .engages in
bookmaking.” Bookmaking is further defined as “a scheme by three or more persons
to receive, record, or forward bets or offers to bet.” TEX. PEN. CODE ANN. §
47.01(2)(C) (Vernon 2003). Collett prepared an affidavit in support of the
original state arrest warrant for Hamilton for engaging in organized crime in
violation of Section 71.02 of the Texas Penal Code. A person violates that
section by committing or conspiring to commit a gambling offense. TEX. PEN. CODE
ANN. § 71.02(a)(2) (Vernon Supp. 2004). Ramirez testified before the federal
grand jury that Hamilton was involved in an illegal bookmaking operation in
violation of Texas law, which in turn violated 18 U.S.C. § 1955. The undisputed
facts known to both defendants, including that Hamilton handled bettors’
transfers and payoffs, was WSB’s advertising agent, and possessed a sheet listing
various bets, establishes probable cause to believe that a violation of Texas law
had occurred.

                                       6
