

                    [NOT FOR PUBLICATION]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  &amp;  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-
