PUBLISHED

UNITED STATES COURT OF APPEALS

FOR THE FOURTH CIRCUIT

RODNEY BRICE,
Plaintiff-Appellee,

v.
                                                                  No. 99-1646
E. J. NKARU; SAFEWAY,
INCORPORATED,
Defendants-Appellants.

Appeal from the United States District Court
for the District of Maryland, at Greenbelt.
Peter J. Messitte, District Judge.
(CA-98-313-PJM)

Argued: April 5, 2000

Decided: July 12, 2000

Before MOTZ and KING, Circuit Judges, and
John C. GODBOLD, Senior Circuit Judge of the
United States Court of Appeals for the Eleventh Circuit,
sitting by designation.

_________________________________________________________________

Reversed by published opinion. Judge King wrote the opinion, in
which Judge Motz and Senior Judge Godbold joined.

_________________________________________________________________

COUNSEL

ARGUED: Jerome Charles Schaefer, O'BRIEN, BUTLER,
MCCONIHE & SCHAEFER, P.L.L.C., Washington, D.C., for Appel-
lants. Chris Asher, UNIVERSAL LAW CENTER, Washington, D.C.,
for Appellee.
OPINION

KING, Circuit Judge:

Rodney Brice sued Safeway, Inc. ("Safeway") and E. J. Nkaru in
the District of Maryland, alleging that Nkaru, a security guard in a
Safeway grocery store in Falls Church, Virginia, maliciously caused
Brice's prosecution for having forged and uttered a Safeway courtesy
card.1 A jury found Nkaru and Safeway liable and returned a
$500,000 verdict in favor of Brice. Brice thereafter accepted a remitti-
tur to the sum of $100,000 and judgment was entered in his favor.

Nkaru and Safeway2 appeal, asserting that they are entitled to judg-
ment as a matter of law. As explained herein, we agree and reverse
the district court's judgment.

I.

A.

On September 16, 1994, Nkaru reported an incident at the Safeway
market to Officer Marcus Wigglesworth of the Alexandria City Police
Department. Nkaru indicated that, on the previous day, a black male
had presented a false Safeway courtesy card application in the name
of one Kenneth McIntyre, and he had attempted to cash a check.
According to Wigglesworth's incident report, Nkaru recognized the
man from a similar incident occurring approximately one year earlier
in another Safeway market. Nkaru provided Officer Wigglesworth
with the police identification number assigned to the previous case
(the "Weir" case), which Wigglesworth recorded in his incident
_________________________________________________________________
1 Brice was charged and prosecuted for violating Va. Code Ann.
§ 18.2-172 ("If any person forge any writing, other than such as is men-
tioned in §§ 18.2-168 [forging public records] and 18.2-170 [forging coin
or bank notes], to the prejudice of another's right, or utter, or attempt to
employ as true, such forged writing, knowing it to be forged, he shall be
guilty of a Class 5 felony.").
2 Safeway's liability is premised on the acts of its agent Nkaru, and
they are jointly and severally liable for the jury's award. For simplicity,
we refer to Appellants Nkaru and Safeway as "Nkaru."

                    2
report. Wigglesworth's initial investigation results, included in his
incident report, established that Brice's Social Security number was
on the fictitious courtesy card application. Officer Wigglesworth con-
cluded his report by requesting a follow-up investigation on the case.

Detective Andrew Jessup, also of the Alexandria City Police
Department, thereafter continued the investigation. He concluded that
a false name and address were on the Safeway courtesy card applica-
tion and the telephone number on the application was that of a law
firm in the District of Columbia. Having obtained Brice's name from
Officer Wigglesworth's investigation of the Social Security number
on the application, Detective Jessup then found that Brice had been
arrested in 1991. Detective Jessup's investigative reports also indi-
cated that Nkaru said that Brice, prior to the September 1994 incident,
had attempted to cash a check in the name of a Chief Chris Ubani.
The police then prepared an array of photographs of six African-
American males, including Brice, and in November 1994, Nkaru
selected Brice's photograph from the six-photograph array.

In December 1994, Detective Jessup obtained a warrant for Brice's
arrest, and the authorities unsuccessfully attempted to execute the
warrant at an address where Brice's family had previously resided.
Because the family no longer resided there, Brice did not, at that time,
learn of the warrant's existence.

B.

Over eighteen months later, in July 1996, Brice and his wife left
the country for a Caribbean cruise and reentered the United States at
its conclusion. As a result of the outstanding 1994 warrant, the
National Airport police detained Brice for several hours and then
transferred him to the Alexandria police. Brice was then arrested on
the 1994 warrant. At a preliminary hearing in August 1996, both
Detective Jessup and Nkaru testified on behalf of the Commonwealth,
and a judge of the Alexandria General District Court found probable
cause for the charge made in the warrant.

The preliminary hearing proceeding apparently triggered the mem-
ory of Brice's wife. She recalled that, in September 1994, she and her
husband had taken a previous Caribbean cruise, and the couple

                    3
obtained documentation of their September 1994 travel schedule.
Shortly thereafter, Brice's counsel provided the Commonwealth's
Attorney with documentation from an airline, confirming that the
Brices had entered the United States by plane on September 16, 1994,
the day after the alleged Safeway incident. The Commonwealth's
Attorney then moved the court to enter a nolle prosequi on the crimi-
nal action against Brice.3

C.

In February 1998, Brice brought this diversity action against
Safeway and Nkaru, asserting several theories, including malicious
prosecution. By the time of the trial, however, only the malicious
prosecution count remained. Brice and his wife both testified about
Brice's arrest and prosecution, and on the damages they claimed to
have suffered as a result.4 Detective Jessup and Officer Wigglesworth
testified to the police department's investigation and reliance on
information provided by Nkaru. Although portions of an August 1998
deposition of Nkaru were read into the record, Nkaru was not called
as a trial witness.

The jury returned the $500,000 verdict in favor of Brice; after
which Brice accepted the remittitur to $100,000. The district court
then entered judgment and denied Nkaru's motion for judgment as a
matter of law.

II.

We review de novo a district court's denial of a Rule 50(b) motion
for judgment as a matter of law, viewing the evidence in the light
_________________________________________________________________
3 A nolle prosequi, in the Commonwealth of Virginia, if entered before
jeopardy attaches, constitutes a dismissal of a criminal charge without
prejudice. See, e.g., Cantrell v. Commonwealth, 373 S.E.2d 328, 333
(Va. Ct. App. 1988), overruled on other grounds by Carson v. Common-
wealth, 404 S.E.2d 919, 921 (Va. Ct. App. 1991).
4 These damages included out-of-pocket expenses incurred due to legal
proceedings, as well as adverse and lingering effects in his relationships
with his wife and children, in his reputation in his church, and in his
employment.

                   4
most favorable to the prevailing party and drawing all reasonable
inferences in his favor. See Austin v. Paramount Parks, Inc., 195 F.3d
715, 727 (4th Cir. 1999) (citation omitted).

Under Virginia law, malicious prosecution is established by proof
that a defendant: (1) instituted or procured a criminal prosecution of
the plaintiff; (2) without probable cause; (3) acted maliciously; and
(4) the prosecution was terminated in a manner not unfavorable to the
plaintiff. See Cramer v. Crutchfield, 496 F. Supp 949, 953 (E.D. Va.
1980) (citation omitted) (noting that malicious prosecution actions are
not favored in Virginia), aff'd, 648 F.2d 943 (4th Cir. 1981) (per
curiam). Nkaru maintains that the district court erred by denying his
motion for summary judgment, because he neither"instituted" nor
"procured" the prosecution of Brice.

A.

In support of his argument for reversal, Nkaru contends that this
case is controlled by the 1928 decision of the Supreme Court of
Appeals of Virginia in King v. Martin, 142 S.E. 358 (Va. 1928). In
King, the defendant notified the police that he and his mother were
robbed at gunpoint inside his home. King gave the police a general
description of the robber and informed them that he had not been able
to distinguish the robber's features clearly. Several times King
reviewed photographs of suspects, but was unable to identify the per-
petrator. Later, King and his mother separately viewed a police line-
up of suspects, at the authorities' request. The Kings positively identi-
fied Martin, but made no arrest request. However, the police sought
and obtained a warrant for Martin's arrest and prosecuted him for
having committed the robbery. After a trial in which King's mother
equivocated on her prior positive identification of Martin, the jury
acquitted Martin. Martin then sued King for malicious prosecution
and obtained a $500 judgment.

The Supreme Court of Appeals of Virginia reversed the malicious
prosecution judgment against King, holding that, as a matter of law,
the evidence failed to show that King "instigated or caused or had
anything to do with the prosecution except to appear as a witness
when summoned." Id. at 126-27. The court reasoned that King unwill-
ingly witnessed a crime and then placed himself entirely in the hands

                     5
of the duly constituted authorities. Id. at 127. The court concluded
that "[n]ot one single active or voluntary step was taken by [King] at
any stage of the proceedings," although he did respond to the authori-
ties' requests for identification and he consistently stated his honest
belief of Martin's identity as the robber. Id. , see also Marsh v. Com-
mercial and Sav. Bank of Winchester, Va., 265 F. Supp. 614 (W.D.
Va. 1967) (relying on King in dismissing malicious prosecution
claim, holding that victim's honest cooperation with police is insuffi-
cient as a matter of law to constitute "institution" of the prosecution).

Nkaru contends that, like Mr. King, he did not institute or procure
any criminal prosecution, because he did not take any active step in
the proceedings. He simply reported the occurrence of a crime to the
police and responded to police requests that he verify a suspect's
identification. The police independently investigated the case, identi-
fied Brice as a suspect, and then constructed an array of photographs.
After Nkaru selected Brice's photograph from the six-photograph
array, the police -- not Nkaru -- sought and obtained the warrant that
ultimately led to Brice's prosecution. Nkaru's testimony at Brice's
preliminary hearing was that of a disinterested witness -- compelled
by a subpoena issued by the Commonwealth's Attorney.

B.

Brice offers several reasons for his contention that we should
affirm the trial court's judgment in his favor. The premise underlying
all of his arguments is that he is innocent, i.e., the evidence of his
reentry into the United States on September 16, 1994 precludes any
possibility that he committed the offense of forging and uttering in
Alexandria the previous day. We accept this assumption for purposes
of our analysis.

1.

Brice attempts to distinguish the King decision based on Mr.
King's apparent uncertainty in his identification of the criminal perpe-
trator. In contrast, Nkaru repeatedly affirmed to the authorities that he
was confident of Brice's identity, and provided details of prior inci-
dents to support his knowledge. Brice further points to the factual dis-
tinction that Nkaru selected Brice from police photographs, while Mr.

                     6
King could not identify a perpetrator from suspects' photographs
offered by the police.

We find no authority supporting Brice's contention that a witness
who provides the police with incorrect information during a criminal
investigation ipso facto "institutes" or "procures" the prosecution if he
provides that information unequivocally. As the King decision
emphasized, the critical question is whether the witness provided the
police with his honest or good faith belief of the facts. In King, the
court distinguished the actions of Mr. King, a witness who acted in
good faith and was thus shielded from civil liability, from those of a
witness whose truthfulness was questionable because she demanded
money from the suspect prior to reporting the matter to the police. See
King, 142 S.E. at 361 (discussing Atkinson v. Birmingham, 116 A.
205 (R.I. 1922)).

Brice also maintains that Nkaru's affirmations deprived the author-
ities of the opportunity to intelligently and independently investigate
the alleged 1994 offense. In support of this point, Brice refers to
Detective Jessup's testimony that his investigation of the case primar-
ily was based on information provided by Nkaru (that Nkaru recog-
nized the individual as a person he had seen offer the Weir checks to
a Safeway cashier), which Jessup believed. Prior to Brice's prelimi-
nary hearing, Jessup did not seek or obtain: the name of the Safeway
cashier involved in the September 15, 1994 incident; the date that the
Chief Chris Ubani incident allegedly occurred; or any information
from other Safeway employees with personal knowledge of the Weir
incidents. Jessup also made no effort to investigate the telephone
number written on a Weir check.

We find nothing to demonstrate that Nkaru prevented law enforce-
ment officials from investigating Brice further, had they elected to do
so. And we are aware of no authority supporting the novel proposition
that a witness, by honestly providing information to a law enforce-
ment official, may be held responsible for the official's execution of
his independent duty to investigate. See, e.g., Gramenos v. Jewel
Cos., 797 F.2d 432, 434 (7th Cir. 1986) ("Police often arrest suspects
on the basis of oral reports from witnesses, and the state may prose-
cute against the wishes of all witnesses."); King v. Massarweh, 782
F.2d 825, 828-29 (9th Cir. 1986) (injuries from arrest are not proxi-

                     7
mately caused by private party, absent some showing that private
party "had some control" over state officials' decision).5 In this case,
Nkaru simply provided the police with information within his knowl-
edge, and the police reasonably believed him. See id. at 439 (explain-
ing that police have reasonable grounds to believe a guard at a
supermarket, because there are inherent safeguards against the mak-
ing of false charges in the institutional employment setting), see also
66 A.L.R. 3d Summary 10 § 3 (1975) (normally a malicious prosecu-
tion plaintiff must show that defendant did more than merely give
information that included an identification, e.g., that he requested the
initiation of proceedings, signed a complaint, or swore out an arrest
warrant against plaintiff); 52 Am. Jur. 2d Malicious Prosecution § 23
(1970) (plaintiff must show defendant was affirmatively active in ins-
tigating or participating in the prosecution); id. § 24 (no liability for
mistaken, but reasonable and in good faith, misidentification of perpe-
trator of crime). Cf. Cedars-Sinai Med. Center v. Superior Court, 253
Cal. Rptr. 561, 563-64 (Cal. Ct. App. 1988) (employees did not initi-
ate or procure the arrest where, in an investigation which had already
focused on plaintiff, authorities requested employees to identify voice
on tape, and they genuinely believed it was plaintiff's voice). In this
instance, there is simply no evidence that Nkaru controlled the deci-
sions of the law enforcement officials with respect to the investigation
and prosecution of Brice. And the lack of such evidence substantially
undermines the effort to hold Nkaru civilly responsible for the prose-
cution of Brice.6
_________________________________________________________________
5 In any event, Jessup was not required to do more than he did during
the criminal investigation, which was terminated at an early stage by the
nolle prosequi decision. See, e.g., Wadkins v. Arnold, No. 99-1370, slip
op. at 10-11 & n.7 (4th Cir. June 2, 2000) (citation omitted) ("Reason-
able law enforcement officers are not required to`exhaust every poten-
tially exculpatory lead or resolve every doubt about a suspect's guilt
before probable cause is established.'"); Morrison v. United States, 491
F.2d 344, 346 (8th Cir. 1974) (officer's failure to investigate -- includ-
ing not even looking at the allegedly counterfeit bill -- did not negate
probable cause for arrest, as the police are not required to conduct a trial
before making an arrest).
6 In any event, there could be no liability based on Nkaru's testimony
at the preliminary hearing, because witness absolute immunity applies to
testimony given in a judicial proceeding. See , e.g., Briscoe v. LaHue, 460

                  8
2.

Brice also argues that events occurring after the Commonwealth
Attorney's nolle prosequi decision permit a reasonable inference that
Nkaru knowingly falsely identified Brice as the perpetrator of the
September 15, 1994 incident. We also reject this contention, in that
those events do not support an inference of Nkaru's bad faith.

Brice seeks support for his contention in that, notwithstanding the
airline records demonstrating otherwise, Nkaru testified in his deposi-
tion that he "would be surprised" if Brice was not in the United States
on September 15, 1994, and that he was very sure that Brice is the
same man Nkaru saw on that date. Here, Brice appears to complain
that Nkaru did not recant his identification of Brice when confronted
with the evidence that Brice was not in the country. We do not find
it unreasonable that Nkaru maintained his belief that he witnessed
Brice commit the offense. Indeed, if this was his best recollection of
the facts, Nkaru testified truthfully. See, e.g., Gramenos, 797 F.2d at
438 (citing Elizabeth F. Loftus, Eyewitness Testimony: Psychological
Research and Legal Thought, 3 Crime and Justice: An Annual
Review of Research 105 (1981)) (noting that eyewitness descriptions
are notoriously full of honest inaccuracies).

Brice also points to Nkaru's failure to disclose, during his August
13, 1998 deposition or afterward, the name of the Safeway cashier
_________________________________________________________________
U.S. 325, 335 (1983) (noting common law provided absolute witness
immunity for all persons integral to the judicial process); Williams v.
Hepting, 844 F.2d 138, 141-43 (3d Cir. 1988) (citing cases) (holding that
preliminary hearing testimony is within the scope of witness absolute
immunity); 50 Am. Jur. 2d Libel and Slander (1995) ("Publications made
in the course of actions necessarily preliminary to judicial proceedings
are absolutely privileged."); 60A Am. Jur. 2d Perjury § 132 (1988) (false
testimony in a criminal action does not furnish a basis for civil suit by
the criminal defendant). Cf. 81 Am. Jur. 2d Witnesses § 79 (1992) (at
common law, a right of action for damages exists against a witness who,
without sufficient excuse, fails or refuses to give oral testimony in obedi-
ence to a subpoena). However, our decision today need not rest on a wit-
ness immunity determination, because only a portion of Nkaru's conduct
would be within its scope.

                    9
involved in the September 15, 1994 incident. However, there is no
evidence that the cashier's identity was pursued by the police contem-
poraneous to the incident; in fact, Detective Jessup testified that his
investigation did not reach this point. We decline to permit an infer-
ence of bad faith from a party's inability to produce detailed informa-
tion about an event that occurred four years earlier.

Brice also asserts that Nkaru denied, in his deposition, having seen
Brice in an Alexandria Safeway market prior to September 15, 1994,
and also denied informing Officer Wigglesworth and Detective Jessup
that he recognized the perpetrator from prior forgery incidents. The
deposition testimony that Brice refers to is, to be charitable, confusing.7
In that testimony, counsel (referring to Detective Jessup's investiga-
tion reports) repeatedly asked Nkaru to confirm that he told the police
he saw Brice author the Weir checks, but Nkaru refused to do so.
However, the police reports do not suggest that Nkaru witnessed
Brice author the checks; instead, consistent with Nkaru's testimony,
those reports indicate that "Nkaru stated that he witnessed Mr. Brice
utter checks . . . ."8 Nkaru also testified that he did not remember tell-
ing the police that the suspect used the name Chief Chris Ubani. Sig-
nificantly, Nkaru's deposition was taken four years after the 1994
incident. His failure to recall under such circumstances is not suspi-
ciously inconsistent with the police report's investigative record.

Brice further contends that Nkaru "refused to testify" during the
civil trial, which permits the jury an adverse inference. See, e.g.,
Restatement of Torts, Second, § 1264 ("When it would be natural
under the circumstances for a party to call a particular witness or take
the stand as a witness in a civil case, . . . and the party fails to do so,
tradition has allowed the adversary to use this failure as the basis for
involving an adverse inference."). First, we reject the characterization
that Nkaru "refused" to testify. A party is not obligated to testify on
his own behalf at trial, and he and his counsel may make a reasoned
_________________________________________________________________
7 At one point during the deposition, Nkaru -- who is not a native
English speaker -- is so confused that he states that he saw Brice on
November 29, 1993 and that on December 2, 1993, he saw Brice for the
first time.
8 To "utter" a check is to put or send it into circulation, or to publish
or offer it. See Black's Law Dictionary 1547 (6th ed. 1990).

                     10
judgment of whether there is a need to do so. Of course, a party in
a civil suit cannot generally refuse to testify if called by the opposing

party. In this regard, it is significant that Brice could have, but did

not, call Nkaru as a witness. See Teague v. Bakker, 35 F.3d 978, 994

n.22 (4th Cir. 1994) (citation omitted) (no adverse inference permitted

when witness is equally available to either party). 9

We are accordingly constrained to reject Brice's contention that

there is sufficient evidence to support an inference that Nkaru acted
in bad faith when he provided the law enforcement officials with

information relating to Brice. Therefore, under these circumstances

and consistent with the applicable authorities, we must conclude, as

a matter of law, that Nkaru did not institute or procure the prosecution

of Brice and that Brice cannot maintain his malicious prosecution
action against Nkaru.10

III.

Pursuant to the foregoing, we reverse the judgment of the district

court and remand for entry of judgment in favor of Nkaru and
Safeway.

REVERSED AND REMANDED
_________________________________________________________________

9 Even if the witness were not equally available, without a forecast of
material facts that were omitted from evidence by Nkaru's failure to tes-
tify, we can find no support for an adverse inference. See, e.g., Martinelli
v. Bridgeport Roman Catholic Diocesan Corp., 196 F.3d 409, 432 n.10
(2d Cir. 1999) (adverse inference permitted when missing witness's testi-
mony would be material); United States v. Warwick, 695 F.2d 1063,
1068 (7th Cir. 1982) (negative inference may not be drawn where the
unpresented testimony would be merely cumulative).

10 In light of our conclusion here, we need not address Nkaru's other
assignments of error.

                     11
