                                                         United States Court of Appeals
                                                                  Fifth Circuit
                                                               F I L E D
                 IN THE UNITED STATES COURT OF APPEALS
                                                                 May 20, 2005
                          FOR THE FIFTH CIRCUIT
                         ______________________            Charles R. Fulbruge III
                                                                   Clerk
                              No. 04-60088
                        ______________________

                            MICHAEL SCRIBNER
                           Plaintiff-Appellee
                                  versus
                        DANNY DILLARD, ETC; ET AL
                                Defendants
                    DANNY DILLARD, Individually, and
                         GARY DODDS, Individually
                         Defendants-Appellants
          ___________________________________________________
           Appeal from the United States District Court for
                  the Northern District of Mississippi
                               (01-CV-325)

          ___________________________________________________

Before WIENER, BARKSDALE and DENNIS, Circuit Judges.

DENNIS, Circuit Judge:*

     The plaintiff brought this suit for damages under 42 U.S.C. §

1983 against two deputy sheriffs alleging, among other things, that

the defendants violated his constitutional rights by arresting him

without probable cause.    A jury found in favor of the plaintiff; the



      *
       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 this opinion should not be published and is not precedent except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.

                                   1
defendants appeal from the district court’s denial of their post-

verdict motion for judgment as a matter of law (JMOL).          Finding no

error, we AFFIRM.

                                        I.

       The plaintiff, Michael Scribner, was arrested for conspiring to

help a friend, Jim Garrison, plant drugs in Garrison’s estranged

wife’s car. Following his arrest, Scribner entered a nolo contendre

plea   to   a   reduced   charge   of   misdemeanor   trespassing.   Under

Mississippi Code § 99-15-26, Scribner requested that the court

withhold acceptance of his plea.        The court agreed and subsequently,

on Scribner’s motion, dismissed the charges and expunged his record.1

       Scribner filed a complaint against the defendants, Lee County

deputy sheriffs Danny Dillard and Gary Dodds, stating claims for

wrongful arrest, malicious prosecution and abuse of process under 42

U.S.C. § 1983.     The district court granted summary judgment to the

defendants on the claim of malicious prosecution.           The claims for

wrongful arrest and abuse of process were tried before a jury.




        1
       The defendants have not argued on appeal that the jury
 verdict in favor of Scribner should be reversed because it
 implicitly invalidated Scribner’s criminal conviction in
 violation of Heck v. Humphrey, 512 U.S. 477 (1994). The
 defendants have therefore waived any defense they may have had
 under Heck. Adams v. Unione Mediterranea Di Sicurta, 364 F.3d
 646, 653 (5th Cir. 2004)(“Issues not raised or inadequately
 briefed on appeal are waived”); see also Okoro v. Bohman, 164
 F.3d 1059, 1061 (7th Cir. 1999)(Heck defense is not
 jurisdictional and may be waived).

                                        2
       Testimony at trial established that Scribner was formerly

employed as a Lee County deputy sheriff and worked with both of the

defendants.     At some point, the relationship between the three men

deteriorated and Scribner came to believe that the defendants hated

him.

       In the summer of 1999, the sheriff’s office learned that drugs

had been planted in Barbara Garrison’s car.             The defendants began

investigating     the    crime    and   shortly    thereafter      arrested   Jim

Garrison, Scribner’s business associate and friend.

       On June 29, 1999, Deputy Goddard was called to the scene of an

attempted suicide by Ricky Mayhall.          When he arrived, Mayhall was

drunk and crying.         According to Goddard’s testimony at trial,

Mayhall stated that he was afraid because he, Jim Garrison and a man

named Mike had been involved in a plot to plant drugs in someone’s

car.       Defendant    Dillard   subsequently      arrived   on    the   scene.

According to his testimony, Mayhall stated that he had planted drugs

in Barbara Garrison’s car for Jim Garrison and a police officer

named Mike.

       Defendant Dillard took Mayhall to see the Assistant District

Attorney, Dennis Ferris, where, according to Ferris’ testimony,

Mayhall again implicated himself, Garrison and a man named Mike in

the conspiracy.        Thereafter, the defendants took a statement from

Mayhall.    Defendant Dillard drafted the statement and Mayhall, who

can neither read nor write, signed it.            According to the statement,

                                        3
Mayhall purchased drugs and delivered them to Garrison. “Officer

Mike” then drove Mayhall and Garrison to the location where Barbara

Garrison had parked her car and Mayhall put the drugs in the car.

     Mayhall testified that due to his intoxication he does not

remember speaking to either the defendants or Ferris on June 29th

and has no memory of giving a statement that evening.    The police

held Mayhall overnight. Jail records indicate that Mayhall was both

very drunk and very emotional that night.

     The following day, the defendants again questioned Mayhall.

Mayhall testified that during that second interview, the defendants

got angry when he failed to implicate Scribner.         According to

Mayhall, they said “we know [Scribner’s] dirty and we’re going to

prove it one way or another.”   Mayhall testified that the defendants

continued to question him until: “I finally decided the only way I

was going to get out of that cell was to go ahead and tell them

[Scribner] had something . . . to do with it.”   The defendants wrote

up another statement, substantially similar to the first statement

but identifying “officer Mike” as Scribner, and Mayhall signed it.

     Ferris and Dodds presented Mayhall’s statements to the grand

jury.   Neither Ferris nor Dodds remember mentioning Mayhall’s

suicide attempt, intoxication   or illiteracy to the grand jury, nor

did they recall informing the grand jury of the animosity between

the defendants and Scribner.

     Testimony at trial established that Mayhall was well known

                                  4
amongst      the    defendants’       co-workers.     Those      officers   generally

thought that         Mayhall    was    unreliable    and    easily coerced.         The

defendants, however, testified that they had no knowledge regarding

Mayhall’s reputation for truthfulness.

   At       the    close   of   evidence,    the    district     court    granted   the

defendants’ motion for JMOL on the abuse of process claim but denied

the defendants’ motion for JMOL on the wrongful arrest claim.                       The

jury returned a verdict in favor of Scribner on that claim and

awarded      $120,000      in   damages.    Following      the   jury    verdict,   the

defendants renewed their motion for JMOL and moved for a new trial.

The district court denied the motion and the defendants timely

appealed.

                                            II.

     The defendants argue that the district court erred by denying

their motion for JMOL.          This court reviews a district court’s denial

of a JMOL de novo, applying the same standards as the district

court.2      "A motion for [JMOL] . . . in an action tried by jury is [,

in essence,] a challenge to the legal sufficiency of the evidence

supporting the jury's verdict."3                  This court will uphold a jury

verdict unless "there is no legally sufficient evidentiary basis for



        2
       Primrose Operating Co. v. National American Ins. Co., 382
 F.3d 546, 552 (5th Cir. 2004)(citing Pineda v. United Parcel
 Serv., Inc., 360 F.3d 483, 486 (5th Cir. 2004)).
        3
            Hiltgen v. Sumrall, 47 F.3d 695, 699 (5th Cir. 1995).

                                             5
a reasonable jury to find" as it did.4               “[I]n entertaining a motion

for [JMOL], the court should review all of the evidence in the

record.     In doing so, however, the court must draw all reasonable

inferences in favor of the nonmoving party, and it may not make

credibility determinations or weigh the evidence.”5

      The defendants argue that they are entitled to JMOL because

there was no legally sufficient evidence for the jury to find that

they withheld or misrepresented evidence to the grand jury and,

therefore,     the    grand   jury’s       indictment      insulates   them    from

liability.     “It is well settled that if facts supporting an arrest

are placed before an independent intermediary such as a magistrate

or grand jury, the intermediary's decision breaks the chain of

causation for false arrest, insulating the initiating party.”6 The

chain of causation is broken, however, “only where all the facts are

presented to the grand jury or magistrate and the malicious motive

of   the    officer   does    not   lead       him   to   withhold   any   relevant

information."7 “Any misdirection of the magistrate or the grand jury


       4
           FED. R. CIV. P. 50(a).
       5
       Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133,
 150 (2000).
       6
       Taylor v. Gregg, 36 F.3d 453, 456 (5th Cir. 1994) (citing
 Wheeler v. Cosden Oil & Chem. Co., 744 F.2d 1131, 1132 (5th Cir.
 1984)).
       7
       Morris v. Dearborne, 181 F.3d 657, 673 (5th Cir.
 1999)(quoting Taylor v. Gregg, 36 F.3d 453, 457 (5th Cir. 1994)).


                                           6
by omission or commission perpetuates the taint on the original

official behavior.”8

     Scribner claims that the defendants are not entitled to JMOL.

He argues that the defendants waived their ability to raise the

legal theory they now espouse by failing to raise the insulating

effect of the grand jury indictment as an affirmative defense in

their answer, failing to raise it in the pre-trial order and failing

to request jury instructions consistent with that legal theory.   The

district court agreed with Scribner, concluding, among other things,

that the defendants had waived any argument concerning the grand

jury indictment by failing to raise it prior to the verdict.

     The defendants raised the insulating effect of the grand jury

indictment for the first time in their Rule 50(b) post-trial motion

for JMOL.   Scribner did not, however, object to the defendants’

claim on the grounds that they failed to raise it in their Rule

50(a) pre-verdict motion for JMOL.    Our precedent establishes that

such an objection is required to preserve the matter of forfeiture

for appellate review.9   Thus, if the defendants had merely failed to

raise the grand jury indictment in their Rule 50(a) motion, we would

reach the merits of their claim.      The defendants’ waiver in this



      8
       Hale v. Fish, 899 F.2d 390, 401 (5th Cir. 1990) (quoting
 Hand v. Gary, 838 F.2d 1420, 1427-28 (5th Cir. 1988)).
      9
       Thompson and Wallace of Memphis, Inc. v. Falconwood Corp.,
 100 F.3d 429, 435 (5th Cir. 1996).

                                  7
case, however, goes far beyond a mere failure to raise the legal

theory in a pre-verdict motion for JMOL.                 The defendants never

argued at any time prior to the verdict that the intervening act of

the grand jury insulated them from liability.             “[A] litigant cannot

strategically lie behind the log until after the trial and receipt

of evidence, argument, and charge to the jury before raising an

issue not found in the pleadings nor included in the pre-trial order

and then raise it when it is too late for his opponent to do

anything about it.        The manifest prejudice of such tactics would

make a shambles of the efficacy of pretrial orders and a fair

trial."10

       At the very least, to preserve this issue, the defendants had

to raise it in the pretrial order.            “It is a well-settled ruled that

a    joint    pretrial   order   signed   by    both   parties   supersedes   all

pleadings and governs the issues and evidence to be presented at

trial."11 Moreover, “[a]n affirmative duty exists at the pretrial

conference for each party to allege clearly all factual and legal

bases upon which the party wishes to litigate the case.”12                    The



        10
          Glass Containers Corp. v. Miller Brewing Co., 643 F.2d
    308, 312 (5th Cir. 1981) (quoting Bettes v. Stonewall Insurance
    Company, 480 F.2d 92, 94 (5th Cir. 1973)).
        11
          Kona Tech. Corp. v. Southern Pac. Transp. Co., 225 F.3d
    595, 604 (5th Cir. 2000) (quoting McGehee v. Certainteed Corp.,
    101 F.3d 1078, 1080 (5th Cir. 1996)).
        12
             Portis v. First Nat'l Bank, 34 F.3d 325, 332 (5th Cir.
    1994).

                                          8
pretrial order in the present case does not include any mention of

causation nor any suggestion that the intervening act of the grand

jury insulated the defendants from liability.             There is no possible

reading of the order that would put Scribner on notice that the

defendants intended to argue that the grand jury indictment relieved

them of liability for Scribner’s arrest.

     We    reject    the    defendants’       argument   that   their       claim   of

qualified immunity was sufficient to inform the court, and Scribner,

of the defense they now assert. Qualified immunity is separate and

distinct from a defense based upon the intervening act of a neutral

intermediary.        “The qualified immunity analysis is a two-step

inquiry.    First,    a    court   must   decide    whether     the   plaintiffs'

allegations, if true, establish a violation of a clearly established

right. . . . Second, if the plaintiffs have alleged a violation, the

court must decide whether the conduct was objectively reasonable in

light of clearly established law at the time of the incident.”13 A

defense    based     upon    the    intervening      actions     of     a    neutral

intermediary, on the other hand, challenges causation and is not

related either to whether the plaintiff alleged the violation of a

clearly established right nor the reasonableness of the defendants’

actions.    Accordingly, the defendants’ claim of qualified immunity

did not put Scribner on notice that they intended to claim that the


      13
        Wallace v. County of Comal, 400 F.3d 284, 289 (5th Cir.
 2005) (citing Hare v. City of Corinth, 135 F.3d 320, 325 (5th
 Cir. 1998) (en banc)).

                                          9
grand jury’s indictment insulated them from liability.

      We also reject the defendants’ suggestion that it “would have

bordered on frivolous” for them to argue that the grand jury’s

indictment insulated them from liability prior to the verdict

because the Scribner’s theory of the case, up to that point, was

that the defendants coerced false evidence from Mayhall.            According

to   the     defendants,   the   insulating    effect   of   the   grand   jury

indictment became relevant only after Scribner changed his trial

strategy and began asserting that the defendants should not have

believed Mayhall, even if his statements were wholly voluntary.             The

defendants, however, noted Scribner’s new theory in their pre-

verdict motion for JMOL, filed after Scribner rested his case, and

in the jury charge conference.             Yet the defendants did not, at

either time, seek to amend the pre-trial order to include the legal

theory that they now assert nor did they seek to add a jury

instruction concerning the intervening act of the grand jury.              Thus,

the defendants had the opportunity to raise the insulating effect of

the grand jury indictment prior to the verdict but chose not to.

Accordingly, “any injury resulting from our [decision] . . . is a

direct result of the [defendants’] failure to properly present

[their] case.”14

      Because the defendants cannot now assert that the grand jury


       14
            Hodges v. United States, 597 F.2d 1014, 1018 (5th Cir.
 1979).

                                      10
indictment broke the chain of causation between their actions and

Scribner’s arrest, we review their post-verdict motion for JMOL only

to the extent that they argue that there was insufficient evidence

to support the jury’s conclusion that the defendants lacked probable

cause to arrest the plaintiff.     “Probable cause exists when the

totality of the facts and circumstances within a police officer's

knowledge at the moment of arrest are sufficient for a reasonable

person to conclude that the suspect had committed or was committing

an offense."15

     After examining the record, we conclude that there was a

legally sufficient evidentiary basis to support the jury’s verdict.

Specifically, Mayhall was taken into custody after trying to commit

suicide and witnesses described him as drunk, sobbing, rambling, and

scared.    It was in this state that Mayhall allegedly gave a

statement inculpating Scribner.        The following day, according to

Mayhall’s testimony, he had to be coached and/or intimidated into

again inculpating Scribner.   Thus, there was a legally sufficient

evidentiary basis for the jury to find that Mayhall’s statements

would not have led a reasonable officer to conclude that Scribner

had committed a crime.   Accordingly, we affirm the district court’s

denial of the defendants’ motion for JMOL.

                                       III.


      15
        Haggerty v. Tex. S. Univ., 391 F.3d 653, 655-56 (5th Cir.
 2004)(Internal quotation marks and citation omitted).

                                  11
      The defendants argue that the they are entitled to a new trial

because the district court erroneously instructed the jury on

probable      cause.    The   district        court   has   broad   discretion   in

formulating the jury charge, and this court reviews instructions

with deference.16      The standard of review applied to a claim that a

jury instruction was erroneous is “whether the court's charge, as a

whole, is a correct statement of the law and whether it clearly

instructs jurors as to the principles of the law applicable to the

factual issues confronting them."17             The defendants must show that

the   instruction      creates   a   "substantial      and   ineradicable   doubt

whether the jury [was] properly guided in its deliberations."18

Finally, this court will not reverse even an erroneous instruction

if, upon review of the "entire record, the challenged instruction

could not have affected the outcome of the case."19

      The district court’s charge to the jury included the following:

      You’re instructed that in order for an officer to justify an
      arrest on the grounds that he had probable cause for an arrest,
      the officer must show that he had a reasonable basis for
      believing that the person was guilty of a crime.      When the


       16
       Deines v. Tex. Dep't of Protective and Regulatory Servs.,
 164 F.3d 277, 279 (5th Cir. 1999).
       17
       General Universal Sys. v. Lee, 379 F.3d 131, 153(5th Cir.
 2004)(quoting United States v. Daniels, 281 F.3d 168, 183 (5th
 Cir. 2002)).
       18
        Deines, 164 F.3d at 279 (quoting Mooney v. Aramco Servs.
 Co., 54 F.3d 1207, 1216 (5th Cir. 1995)).
       19
            Id.

                                         12
       officer bases his belief of guilt of a crime on the word of an
       informant, such as Ricky Mayhall, the officer must have a basis
       for believing that the informant is trustworthy and reliable
       taken in conjunction with all other evidence available to the
       officer.
       You’re instructed that in determining whether or not there was
       probable cause for the arrest of the plaintiff, you are to
       determine whether or not any reasonable law enforcement officer
       confronted with the same information and circumstances with
       which the defendants were confronted would have believed that
       there was a probability that the plaintiff had committed a
       crime.

       According to the defendants, “the standard contained [in the

jury    instruction]       applied    to    a     determination   of   information

credibility when officers seek a search warrant” and “probable cause

involving search warrants differs from that involving a warrant for

arrest.”      The defendants are incorrect, however, as the standards

for judging the credibility of the information provided by an

informant20    are   the    same     for   both    search   warrants   and   arrest

warrants.21


        20
        We note that Mayhall was not merely an informant but was
 an alleged coconspirator in the criminal enterprise in which he
 implicated Scribner. Because the defendants argue only that the
 district court misstated the standard for judging the reliability
 of statements obtained from an informant and never suggested to
 the district court or to this court that Mayhall’s statements
 should be evaluated using any alternate criteria, the question of
 whether Mayhall’s statements should be treated as those of an
 ordinary informant is not before us. See United States v. Fagan,
 821 F.2d 1002, 1015 n.9 (5th Cir. 1987) (arguments not briefed
 are deemed waived); FED. R. CIV. P. 51 (objections to jury
 instructions must state distinctly the matter objected to and the
 grounds of the objection).
        21
        See Mendenhall v. Riser, 213 F.3d 226, 235 n.18 (5th Cir.
 2000) (“Our case law, following the Supreme Court, makes clear
 that probable cause to search is no different than probable cause

                                           13
     The defendants further claim that Illinois v. Gates22 “made it

clear that informant-based probable cause did not require officers

to support their affidavit for a search warrant through evidence of

an informant’s trustworthiness and reliability.”      In Gates, the

Supreme Court rejected     the rigid two-prong test derived from its

previous decisions in      Aguilar v. Texas23 and Spinelli v. United

States24 in favor of evaluating the reliability of an informant’s

statement based upon the totality of the circumstances. The Supreme

Court stated: “We agree with the Illinois Supreme Court that an

informant's ‘veracity,’ ‘reliability,’ and ‘basis of knowledge’ are

all highly relevant in determining the value of his report. We do

not agree, however, that these elements should be understood as

entirely separate and independent requirements to be rigidly exacted

in every case . . . .”25      Thus, the Supreme Court held that an

anonymous tip, which was amply corroborated, could provide probable

cause to search.


 to arrest.”) The case relied upon by the defendants, United
 States v. Rojas, 671 F.2d 159, 165 (5th Cir. 1982), merely holds
 that the factual basis necessary to establish probable cause to
 arrest may be different from the factual basis necessary to
 establish probable cause to search; it does not hold that there
 is any difference in the legal definition of “probable cause” in
 the context of search and arrest warrants.
      22
           462 U.S. 213 (1983).
      23
           378 U.S. 108 (1964).
      24
           393 U.S. 410 (1969).
      25
           Gates, 462 U.S. at 230.

                                     14
     The jury instruction challenged by the defendants in the

present case does not violate Gates.    Rather, the district court

properly instructed the jury to consider whether, in light of all of

the evidence available to them, the defendants had a basis for

believing that Mayhall, whose uncorroborated statements they relied

upon to establish probable cause, was reliable and trustworthy.

This is entirely consistent with the totality of the circumstances

test adopted in Gates.

     For the foregoing reasons, the decision of the district court

is AFFIRMED.




                                 15
