                                                                              FILED
                           NOT FOR PUBLICATION                                 JUN 12 2015

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


NHIA KAO VANG, et al.,                             No. 13-16272

              Plaintiffs - Appellants,             D.C. No. 2:12-cv-01226-MCE-AC

  v.
                                                   MEMORANDUM*
STEVEN DECKER, et al.,

              Defendants - Appellees


                  Appeal from the United States District Court
                      for the Eastern District of California
             Morrison C. England, Jr., Chief District Judge, Presiding

                       Argued and Submitted May 14, 2015
                            San Francisco, California

Before: PAEZ and CLIFTON, Circuit Judges, and DUFFY, District Judge.**

       Plaintiffs-Appellants (“Plaintiffs”) are three Hmong married couples. The

men (“Vang Plaintiffs”) were charged with violating the Neutrality Act and other



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
        **
             The Honorable Kevin Thomas Duffy, District Judge for the U.S.
District Court for the Southern District of New York, sitting by designation.

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offenses in connection with an alleged conspiracy to illegally procure and transfer

military grade weapons to support a coup in Laos. Plaintiffs allege (1) civil rights

violations pursuant to 42 U.S.C. § 1983; (2) constitutional claims pursuant to

Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics,

403 U.S. 388 (1971); (3) common law claims pursuant to the Federal Tort Claims

Act (“FTCA”), 28 U.S.C. §§ 1346(b), 2671–80; and (4) claims for declaratory and

injunctive relief as a result of damages suffered during the government’s

prosecution of the Vang Plaintiffs in United States v. Harrison Jack, et al., 2:07-cr-

00266-KJM (E.D. Cal.). We have jurisdiction pursuant to 28 U.S.C. § 1291.

      Our focus here is Plaintiffs’ malicious prosecution claims. We review de

novo the dismissal of these claims under Rule 12(b)(6) of the Federal Rules of

Civil Procedure. See Dougherty v. City of Covina, 654 F.3d 892, 897 (9th Cir.

2011). “To prove a [FTCA] claim of malicious prosecution in California, the

plaintiff must prove that the underlying prosecution: ‘(1) was commenced by or at

the direction of the defendant and was pursued to a legal termination in his,

plaintiff’s, favor; (2) was brought without probable cause; and (3) was initiated

with malice.’” Conrad v. United States, 447 F.3d 760, 767 (9th Cir. 2006)

(quoting Sheldon Appel Co. v. Albert & Oliker, 765 P.2d 498, 501 (Cal. 1989)); see

also Awabdy v. City of Adelanto, 368 F.3d 1062, 1066 (9th Cir. 2004) (identical in


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the § 1983 context); Martin v. Sias, 88 F.3d 774, 775 (9th Cir. 1996) (applying the

same standard in the Bivens context, save for the replacement of a state actor with a

federal actor). The entire action must terminate in a plaintiff’s favor in order for a

plaintiff to maintain a claim for malicious prosecution. Crowley v. Katleman, 881

P.2d 1083, 1094 (Cal. 1994). The district court concluded that Plaintiffs had not

met their burden of showing that the prosecution terminated in their favor. Our

precedent forecloses the district court’s conclusion.

       In order for a plaintiff to prove that the prosecution terminated in his favor,

he “must generally establish that the prior proceedings terminated in such a manner

as to indicate his innocence.” Awabdy, 368 F.3d at 1068 (citations omitted). “[A]

dismissal in the interests of justice satisfies this requirement if it reflects the

opinion of the prosecuting party or the court that the action lacked merit or would

result in a decision in favor of the defendant.” Id. Further,

       [w]hen such a dismissal is procured as the result of a motion by the
       prosecutor and there are allegations that the prior proceedings were
       instituted as the result of fraudulent conduct, a malicious prosecution
       plaintiff is not precluded from maintaining his action unless the
       defendants can establish that the charges were withdrawn on the basis
       of a compromise among the parties or for a cause that was not
       inconsistent with his guilt.

Id. (emphasis added).

       Plaintiffs’ complaint plainly alleged misconduct in the underlying criminal


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matter, namely, that Defendant Decker lied to prosecutors and the grand jury. The

district court in that case dismissed a number of the counts in the indictment for

failing to put the Vang Plaintiffs on notice of the charges against them. Thereafter,

instead of refiling the dismissed counts in an amended or superseding indictment,

the United States filed a motion—that the district court granted—to dismiss the

surviving charges “in the interests of justice.”

      The allegations of misconduct and the subsequent motion of the United

States to dismiss the prosecution in the interests of justice shifted the burden to the

Defendants to show that the proceedings did not terminate as a result of Plaintiffs’

innocence. See id. Defendants cannot simply hide behind the phrase “in the

interests of justice” to prevent Plaintiffs from pursuing their malicious prosecution

claims. Because the district court did not shift the burden to Defendants, we

reverse the district court’s judgment on the malicious prosecution claims brought

against the United States under the FTCA, and against Defendant Decker pursuant

to Bivens, and remand for further proceedings on those claims.

      We affirm the district court’s judgment dismissing Plaintiffs’ other claims

under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6) for the same reasons

stated in the district court’s otherwise well-reasoned orders.

      AFFIRMED in part, REVERSED in part, and REMANDED. The parties


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shall bear their own costs on appeal.




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