                                                                       FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                    UNITED STATES COURT OF APPEALS October 25, 2011
                                                                Elisabeth A. Shumaker
                                 TENTH CIRCUIT                      Clerk of Court



 WILLIAM MILLER,

               Plaintiff - Appellant,                    No. 11-2010
          v.                                            D. New Mexico
 DONNA ARBOGAST, MICHAEL                     (D.C. No. 6:05-CV-00577-BB-LAM)
 FOX, and PAUL SPIERS,

               Defendants - Appellees.


                            ORDER AND JUDGMENT *


Before MURPHY, BRORBY, and GORSUCH, Circuit Judges.



I. Introduction

      Plaintiff-Appellant, William Miller, appeals from the entry of summary

judgment in favor of Defendants Donna Arbogast, Michael Fox, and Paul Spiers

in this 42 U.S.C. § 1983 malicious prosecution action. Miller’s claims arise from

the investigation of the 1999 murder of Girly Hossencofft in Albuquerque, New

Mexico. The district court granted summary judgment to all defendants because



      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
Miller failed to produce sufficient evidence from which a reasonable juror could

find in his favor on each element of his claim. Exercising jurisdiction pursuant to

28 U.S.C. § 1291, this court affirms.

II. Background

      Girly Hossencofft disappeared sometime between September 9 and

September 10, 1999. On September 8, she called the Albuquerque FBI and told

them she was afraid her husband, Diazien Hossencofft, was about to kill her.

When she did not report to work on September 10, officers entered Girly’s

apartment to check on her safety. They discovered stains with a reddish tint on

the carpet and a strong odor of bleach. The next day, New Mexico State Police

Department officers discovered a tarp along U.S. Highway 60 near Magdalena,

New Mexico (“the Magdalena tarp”). The tarp contained bloody clothing, cloth,

duct tape, and gauze, as well as other trace evidence such as human hairs and both

dyed and natural animal hairs. Girly’s DNA was found on the tarp. Diazien

Hossencofft, Girly’s husband, and his girlfriend, Linda Henning, were eventually

convicted of the murder and kidnaping of Girly, whose body was never found.

Early in the investigation, however, Miller was also a suspect. Michael Fox was a

detective at the Albuquerque Police Department and the lead investigator into

Girly’s disappearance and murder. Donna Arbogast was an Albuquerque Police

Department forensic scientist involved in the investigation. Paul Spiers was an




                                        -2-
assistant district attorney who presented evidence to the grand jury and who

Miller alleges directed the investigation targeting him.

      In 1999, Spiers sought a murder and kidnaping indictment against Miller in

connection with Girly’s disappearance. The 1999 grand jury did not return an

indictment. On February 12, 2001, Fox attested to an arrest warrant for Miller.

Spiers again sought an indictment, this time presenting testimony from Arbogast

linking certain trace evidence found on the Magdalena tarp and in Girly’s

apartment, such as dyed and natural animal hair, with trace evidence found in

Miller’s residence. The 2001 grand jury did not return an indictment for first or

second degree murder, but did return an indictment for conspiracy to commit first

degree murder, kidnaping, conspiracy to commit kidnaping, and several evidence

tampering charges. As a result of his 2001 arrest and indictment, Miller was

incarcerated for approximately seven weeks. On May 24, 2002, a nolle prosequi

was filed dismissing the 2001 indictment. In May of 2002, Spiers sought an

indictment for a third time. The grand jury returned an indictment for five counts

of evidence tampering against Miller, but did not return an indictment on any of

the murder, conspiracy, or kidnaping charges. Miller pleaded no contest to three

of the tampering charges. He then brought suit against Arbogast, Fox, and Spiers

in the Federal District Court for the District of New Mexico under 42 U.S.C.

§ 1983.




                                         -3-
      This is the second appeal in this case. In Miller v. Spiers, 339 F. App’x

862, 867 (10th Cir. 2009), this court held Miller’s claims were properly

characterized as alleging a single malicious prosecution conspiracy by the

defendants. The court therefore vacated the decision of the district court, which

had granted summary judgment to the defendants by treating Miller’s complaint

as alleging multiple Fourth and Fourteenth Amendment violations. Id. at 864.

On remand, the district court was instructed to analyze Miller’s allegations as a

single § 1983 claim resembling the common law tort of malicious prosecution.

Id. This court also instructed the district court to address whether all or part of

Miller’s claim was precluded by lack of favorable termination or by Heck v.

Humphrey, 512 U.S. 477 (1994). Id. at 868–69.

      On remand, the district court concluded Miller could not base his malicious

prosecution claim on any of the evidence tampering charges due to lack of

favorable termination. However, the court resolved the Heck/favorable

termination issues in Miller’s favor with respect to the conspiracy to commit

murder and kidnaping charges. It nonetheless granted summary judgment to each

defendant. As to Arbogast, the district court concluded there was no evidence

from which a reasonable jury could conclude she fabricated evidence or conspired

to fabricate evidence. As to defendants Fox and Spiers, the district court

determined Miller’s arrest was supported by probable cause, and hence no




                                          -4-
reasonable juror could find in his favor on a malicious prosecution claim. Miller

appeals. 1

III. Discussion

       A. Standard of Review

       “We review a district court’s grant of summary judgment de novo, using

the same standards applied by the district court.” Baca v. Sklar, 398 F.3d 1210,

1216 (10th Cir. 2005). Summary judgment shall be granted when “the movant

shows that there is no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “To avoid

summary judgment, the nonmovant must make a showing sufficient to establish

an inference of the existence of each element essential to the case.” Hulsey v.

Kmart, Inc., 43 F.3d 555, 557 (10th Cir. 1994) (citing Celotex Corp. v. Catrett,

477 U.S. 317, 322–23 (1986)). “The nonmovant ‘may not rest upon mere


       1
        The court rejects Miller’s arguments that disputed issues of material fact
were already established during the previous round of summary judgment
motions. In Miller v. Spiers, 339 F. App’x 862, 869 (10th Cir. 2009), this court
instructed the district court to: “determine the particular confines of Miller’s
malicious prosecution claim.” The district court was also instructed to “inquire
into (1) whether Miller’s attempted tampering by destroying the business cards
bore upon the prosecutor’s ultimate decision to dismiss the murder, conspiracy,
and kidnaping charges, or (2) whether the tampering charges are integral to the
alleged conspiracy by the Defendants such that his § 1983 claim would impugn
the validity of his tampering convictions.” Id. After addressing these issues, it
remained for the district court to determine whether Miller could produce
sufficient evidence to withstand a motion for summary judgment on the merits.
The district court’s conclusions on that issue are therefore properly before this
court in this second appeal.

                                        -5-
allegation or denials of his pleadings, but must set forth specific facts showing

that there is a genuine issue for trial.’” Id. (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 256 (1986)). Reasonable inferences from the evidence must

be drawn in favor of the non-moving party. See Matsushita Electric Indus. Co. v.

Zenith Radio Corp., 475 U.S. 574, 587 (1986).

      B. District Court’s Decision

      To state a claim for malicious prosecution, a plaintiff must show: “(1) the

defendant caused the plaintiff’s continued confinement or prosecution; (2) the

original action terminated in favor of the plaintiff; (3) there was no probable

cause to support the original arrest, continued confinement, or prosecution; (4)

the defendant acted with malice; and (5) the plaintiff sustained damages.”

Novitsky v. City of Aurora, 491 F.3d 1244, 1258 (10th Cir. 2007). With respect to

defendants Spiers and Fox, the district court concluded Miller failed to produce

sufficient evidence to establish a genuine dispute of material fact as to the third

element of his malicious prosecution claim: lack of probable cause. With respect

to defendant Arbogast, the district court did not engage in a probable cause

inquiry because it determined Miller failed to raise a genuine dispute of material

fact as to whether she intentionally fabricated any evidence. The court therefore

granted her motion for summary judgment on that basis.

      This court concludes there was probable cause to support Miller’s 2001

arrest and confinement. Miller therefore cannot make a showing sufficient to

                                          -6-
establish a genuine dispute of material fact as to each element of his malicious

prosecution claim against any defendant, including Arbogast. It is therefore

unnecessary to consider separately the district court’s analysis of Miller’s claims

against Arbogast. See Richison v. Ernest Group, Inc., 634 F.3d 1123, 1130 (10th

Cir. 2011) (“We have long said that we may affirm on any basis supported by the

record, even if it requires ruling on arguments not reached by the district court or

even presented to us on appeal.”). It is also unnecessary to determine whether or

to what extent Spiers’s involvement in the investigation and subsequent

indictment of Miller exceeded the scope of his prosecutorial immunity. Even

assuming that Arbogast and Fox acted at Spiers’s specific direction at all relevant

times, Miller failed to raise a genuine dispute of material fact as to the probable

cause element of his claim against any defendant.

      C. Probable Cause

      A malicious prosecution claim is only actionable if it results in seizure or

confinement. See Nielander v. Bd. of Cnty. Comm’rs, 582 F.3d 1155, 1164–65

(10th Cir. 2009). This court therefore agrees with the district court’s conclusion

that the scope of Miller’s claims against Arbogast, Spiers, and Fox is limited to

allegations connected with his 2001 arrest and indictment because he was not

seized or confined as a result of the 1999 or 2002 indictment attempts. Miller

accepts this characterization of his claim on appeal. Thus, for Miller to withstand

a motion for summary judgment, there must exist a disputed issue of material fact

                                          -7-
as to whether probable cause supported his 2001 arrest. “Probable cause for an

arrest warrant is established by demonstrating a substantial probability that a

crime has been committed and that a specific individual committed the crime.”

Wolford v. Lasater, 78 F.3d 484, 489 (10th Cir. 1996). In a malicious prosecution

action, “[t]he question of probable cause is a mixed question of law and fact.

Whether the circumstances alleged to show it probable or true, and existed, is a

matter of fact; but whether, supposing them to be true, they amount to probable

cause, is a question of law.” Rouse v. Burnham, 51 F.2d 709, 712 (10th Cir.

1931); see also Smith v. Lamz, 321 F.3d 680, 684 (7th Cir. 2003).

      To determine whether probable cause supported the arrest and continued

confinement of Miller in this malicious prosecution case, the court undertakes a

five-step inquiry. First, the court determines if there is a question of fact as to

whether particular items of evidence were fabricated; second, the court eliminates

those items from consideration in its probable cause analysis; third, the court

determines whether exculpatory evidence was improperly excluded from

consideration; fourth, the court includes any such evidence in its analysis; fifth,

the court determines whether probable cause still exists after factoring in all

excisions and additions. See Grubbs v. Bailes, 445 F.3d 1275, 1278 (10th Cir.

2006); Taylor, 82 F.3d at 1562.

      In undertaking this inquiry, the district court excluded the following pieces

of evidence: testimony from Arbogast that hair found on the Magdalena tarp was

                                          -8-
“consistent” with samples of Miller’s hair, trace evidence found in a steam

cleaner which was allegedly used to clean Girly’s apartment, all evidence related

to business cards except for evidence indicating Miller possessed one of Linda

Henning’s business cards, and evidence related to the source of a Taurus handgun.

The court included in its analysis that none of Miller’s blood was found on

Girly’s carpet or on the Magdalena tarp, and that no hairs were tested which could

be matched to him. The court also considered Miller’s alibi evidence, which

covered significant portions of September 9, 1999, and September 10, 1999.

      Those inclusions and exclusions notwithstanding, the district court included

sixteen pieces of evidence in its probable cause analysis, which it delineated as

follows:

      (1) Plaintiff told Rick Carlson 2 to shut up when Carlson asked about
      Girly on September 14, 1999; a few days later he told Carlson he
      knew much more about what was going on in the case than was in the
      news;

      (2) Carlson was in constant fear of Plaintiff during this time period;

      (3) Plaintiff sold a handgun to Diazien, gave a shotgun to Linda
      Henning, and sold her a handgun as well;




      2
      Rick Carlson was an acquaintance of Miller who knew Miller, Diazien,
and Henning through a weekly lunch group.

                                         -9-
      (4) Mr. Wilkin 3 and Ms. Staehlin 4 both informed Fox that Plaintiff
      told them Diazien wanted Plaintiff to kill Girly;

      (5) Plaintiff was friends with both Diazien and Henning, and had
      taken them target-shooting;

      (6) Plaintiff knows the Magdalena area well, from hunting trips
      there; he has friends in the area, and took Henning to that area in the
      month or two before Girly was murdered;

      (7) the tarp and clothes containing Girly’s DNA, as well as other
      trace evidence, were found in the Magdalena area;

      (8) Plaintiff went to a bank on September 9, 1999 to open a safety
      deposit box; however, when he saw a uniformed APD officer enter
      the bank, he became extremely nervous and left suddenly without
      depositing anything into the box; a few days later, he returned and
      placed coins and currency into the box;

      (9) Plaintiff owned two cats in September 1999;

      (10) Linda Henning told her cellmate that Plaintiff was with “us” and
      did most of the work, and the duct tape used in the incident came
      from Plaintiff’s truck;

      (11) Diazien Hossencofft told his cellmate that he killed Girly and
      disposed of her body while “someone else” drove in the opposite
      direction with her clothes;

      (12) before Girly went missing, Plaintiff called Ms. Staehlin and
      asked her to go out of town with him the weekend of September 10,
      1999;

      3
      Ron Wilkin met Miller at a lunch group approximately three months before
the murder.
      4
       Gail Staehlin was interviewed by Fox and another detective on September
13, 2000. She knew Miller through a weekly UFO lunch group. Staehlin told
Fox that Miller told her he believed Diazien was an alien. When asked why he
did not just walk away from it all, Miller told Staehlin that Diazien’s “got him in
a trance.”

                                        -10-
      (13) the following items of trace evidence were found in Plaintiff’s
      home during various searches: natural and dyed deer hair, including
      pink deer hair; natural and dyed rabbit hairs; natural and dyed
      feathers; and natural cat hairs;

      (14) trace evidence collected from the tarp included two dyed rabbit
      hairs, two dyed green feathers, and one hundred and one cat hairs;

      (15) trace evidence collected from Girly’s carpet included sixty cat
      hairs, eighteen natural deer hairs, six dyed deer hairs, one natural
      rabbit hair, five dyed rabbit hairs, eleven natural feathers, and one
      pink feather; and

      (16) the pink dyed deer hair located in Girly’s carpet appeared to be
      consistent with the pink dyed deer hair collected from Plaintiff’s
      residence.

Mem. Op. & Order, Doc. 253 at 34–35.

      On appeal, Miller raises no specific challenges to items 1–12. In particular,

he does not challenge item 10: Henning’s statement to her cellmate inculpating

Miller in Girly’s kidnaping and murder. The district court noted the statements of

a co-participant alone can be sufficient to establish probable cause as a matter of

law. In United States v. Vazquez-Pulido, 155 F.3d 1213, 1216 n.5 (10th Cir.

1998), this court stated “the finding of probable cause to support an arrest may be

based on a co-defendant’s hearsay statement, in whole or part.” In particular,

self-inculpatory statements of a co-participant in a crime have been held

sufficient to supply probable cause for arrest. See, e.g., United States v.

Patterson, 150 F.3d 382, 386 (4th Cir. 1998); Craig v. Singletary, 127 F.3d 1030,

1045–46 (11th Cir. 1997) (“Ordinarily, unless it is incredible or contradicts

                                         -11-
known facts to such an extent no reasonable officer would believe it, a

co-defendant’s confession that he and the suspect committed the crime can supply

probable cause to arrest the suspect.”). The court therefore need not address

Miller’s arguments concerning the possible contamination and reliability of the

trace evidence used to indict him. Henning’s statement alone is sufficient to

establish probable cause for his arrest.

      Miller, however, makes several broad-based attacks on the sufficiency of

the evidence used to support the 2001 arrest warrant and indictment which could

conceivably call into question Henning’s statement. On closer examination, these

arguments are insufficient to vitiate probable cause.

             1. Alibi Evidence

      Miller contends he had a verified alibi for the time period stretching from

the afternoon of September 9, 1999, through September 10, 1999, which “trumps

all of Defendants’ claims of probable cause.” Miller presented evidence, largely

verified by the investigation of Detective Lescenski of the Albuquerque Police

Department, which a reasonable fact-finder could conclude generally accounted

for his whereabouts from the late afternoon to early evening hours of September

9, 1999, and for some portions of September 10, 1999. If Miller’s alibi were truly

comprehensive, it could conceivably render Henning’s statement to her cellmate

so contradictory to known facts that no reasonable officer could believe it.

According to the arrest warrant, however, police were not certain of the time of

                                           -12-
Girly’s death, and were only able to determine that it occurred sometime between

September 9 and September 10. Miller’s alibi does not account for his

whereabouts during the late evening hours of September 9 through the early

morning hours of September 10. In considering the status of the evidence in the

light most favorable to Miller, the district court properly concluded Miller’s alibi

does not account for all of the periods of time in which Girly could have been

murdered.

      Additionally, in the 2001 arrest warrant Miller was charged not only with

murder and kidnaping but also with conspiracy. Physical presence at the crime

scene is not required to sustain a conviction for conspiracy under New Mexico

Law. State v. Ochoa, 72 P.2d 609, 616 (N.M. 1937); UJI 14-2811 NMRA,

committee cmt. Thus, even if a jury concluded Miller’s alibi covered the entire

period during which Girly could have been killed, Henning’s statement is still

sufficient to establish probable cause.

             2. Fox’s Credibility

      Miller next argues that Fox’s credibility as a whole is at issue, creating a

triable issue of material fact as to the truth of every statement in the arrest

warrant affidavit, including Henning’s statement. The district court concluded

there was evidence suggesting Fox may have testified falsely about his knowledge

of one of Henning’s business cards at a suppression hearing in the criminal case

against Miller. Specifically, the court concluded sufficient evidence existed from

                                          -13-
which a reasonable jury could find that, during a suppression hearing in 2003,

Fox attempted under oath to correct prior statements in which he said he was not

present when the card was found in Miller’s home and that he did not see it near

the fireplace that day. The detective who found the card and was expected to lay

the foundation for its admission at trial died, and the suppression hearing

followed his death. The district court therefore concluded a reasonable jury could

believe Fox lied about his involvement in the search in order to preserve the

business card as evidence against Miller in the tampering case.

      The district court properly rejected the argument that because Fox may

have lied once, none of the factual recitations in the arrest warrant, including his

account of Henning’s statement, can be considered in a probable cause inquiry. 5

A contrary conclusion, if accepted, would effectively dispense with the Grubbs

extractive-additive framework altogether. Under Grubbs, if evidence exists from


      5
        Miller also alleges Fox “lied about more than one thing, more than one
time.” He alleges that Fox also “lied about . . . the destroyed notebook, the hand
gun purchase, the Magdalena cat and, Ms. LaFlamme’s verification of Miller’s
alibi.” In support of this statement, Miller cites to portions of his response to a
motion for summary judgment in the district court, which in turn includes
citations to various exhibits filed in support of the response. Miller has not
articulated precisely what “lies” Fox told about the above listed items, either in
his briefs before this court or in the portions of the pleading he now references.
Further, the court’s review of the record does not uncover any evidence from
which a reasonable fact finder could infer Fox lied about all of the above listed
items. The court therefore need not decide whether a sufficiently thorough
showing that an affiant lied about numerous items in an arrest warrant affidavit
can create a triable issue of fact as to the truth of all of the statements in the
affidavit.

                                         -14-
which a reasonable jury could conclude a particular item in a search warrant was

fabricated, the court excludes that evidence and considers whether probable cause

would still exist without it. 445 F.3d at 1278. The court finds no authority

supporting the additional inference that because an officer who attested to a

warrant may have lied once, he wholly lacks credibility and therefore the veracity

of every statement he made in the affidavit is put in issue. The court finds the

analysis of the Sixth Circuit persuasive on this question. See United States v.

Robinson, 272 F. App’x 421, 428 n.1 (6th Cir. 2007).

             3. Missing Gold Coins

      Miller argues the sequence of events surrounding the disappearance of 51

of his gold coins from the Albuquerque Police Department evidence room creates

an inference that the defendants had a motive to frame him and casts a cloud on

the credibility of the investigation as a whole. This argument would run as

follows: the defendants had a motive to lie, therefore any of the statements in the

affidavit could be lies, and therefore none of the statements in the affidavit can be

considered under the extractive-additive framework. The district court rejected

Miller’s argument concerning the disappearance of the gold coins as lacking any

evidentiary support and founded on “sheer and impermissible speculation.” Such

speculation is insufficient to withstand a motion for summary judgment. See

Pinkerton v. Colo. Dep’t of Transp., 563 F.3d 1052, 1061 (2009). On appeal,

Miller points to no additional evidence in the record to substantiate his theory.

                                         -15-
The court therefore declines to discount the statements made in the warrant

affidavit on this basis.

             4. Effect of Failure to Return Indictment

      Miller argues the failure of the 1999 and 2002 grand juries to return an

indictment necessarily establishes a genuine issue of material fact as to the issue

of probable cause. The court rejects that argument. First, the failure of the grand

jury to return an indictment in 1999 does not vitiate probable cause because that

grand jury was not presented with any of the trace evidence collected from

Girly’s apartment, the Magdalena tarp, and Miller’s residence. Regarding the

2002 grand jury proceeding, as discussed in part III.C, supra, the scope of

Miller’s claim is limited to the actions which preceded his seven week

confinement, including the 2001 arrest warrant and indictment. In connection

with that indictment, the district court concluded, and this court agrees, sufficient

uncontroverted evidence existed to establish probable cause as a matter of law

even after excluding certain inculpatory pieces of evidence and including certain

exculpatory pieces of evidence in the analysis.

      In a malicious prosecution action, whether a given set of facts, “supposing

them to be true . . . amount[s] to probable cause, is a question of law” for the

court, not a question of fact for the jury. Rouse, 51 F.2d at 712. 6 The failure of a

      6
       The court’s application of Rouse in this malicious prosecution action is
consistent with the approach of other courts faced with the same question:
                                                                     (continued...)

                                         -16-
subsequent grand jury to return an indictment, therefore, does not change the

court’s conclusion that the evidence which resulted in Miller’s seven-week

confinement was sufficient to establish probable cause justifying that confinement

as a matter of law. Miller cites no authority, and the court is unable to find any,

stating that the failure of a grand jury to return an indictment has any kind of

preclusive effect in a subsequent civil action on the issue of probable cause. He

is therefore not relieved of his duty to “set forth specific facts showing that there

is a genuine issue for trial.” Anderson, 477 U.S. at 256.




      6
       (...continued)
      The rule that the question of probable cause in an action for
      malicious prosecution is for the court, and not for the jury, although
      undoubtedly anomalous in that it substitutes the judgment of the
      court for that of the jury as to the reasonableness of the defendant's
      conduct in the light of the admitted or established facts and beliefs,
      is nevertheless . . . established . . . by the overwhelming weight of
      authority.

C.C. Marvel, Annotation, Probable Cause or Want Thereof, in Malicious
Prosecution Action, as Question of Law for Court or of Fact for Jury, 87 A.L.R.
2d 183, § 2 (1963). This approach is also consistent with the Restatement’s
formulation of the tort of malicious prosecution. See Restatement (Second) of
Torts § 673 (1977).

                                         -17-
IV. Conclusion

         For the foregoing reasons, the court AFFIRMS the decision of the district

court.

                                                ENTERED FOR THE COURT


                                                Michael R. Murphy
                                                Circuit Judge




                                         -18-
