Sutton, et al v. USA

*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should not be published and is not precedent except under the limited circumstances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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 99-20694
_____________________
MICHAEL J. SUTTON; JOHN WILEY MITCHELL,
Plaintiffs-Appellees,
Cross-Appellants,
versus
UNITED STATES OF AMERICA,
Defendant-Appellant,
Cross-Appellee.
_______________________________________________________
Appeals from the United States District Court for
the Southern District of Texas
(H-83-CV-6674)
_______________________________________________________
September 19, 2000
Before REAVLEY, BENAVIDES and DENNIS, Circuit Judges.
PER CURIAM:*
In this Federal Torts Claims Act case that claims malicious prosecution under
Texas law, the district judge carefully considered the evidence, spelled out the

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ineptness and misconduct of the postal inspector, and attempted to bring a just
closure to the dispute. However, the court was unable to find by a preponderance of
the evidence that the plaintiffs were innocent of the charges made against them.
Because that finding is necessary to support the judgment, it cannot stand.
From the bench and in its findings and conclusions, the court states that lack
of conviction leaves plaintiffs entitled to a presumption of innocence. While that
relieves them of criminal guilt, it does not prove malicious prosecution. Texas law
requires a plaintiff in a malicious prosecution claim to establish innocence. See
Richey v. Brookshire Grocery Co., 952 S.W.2d 515, 517 (Tex. 1997). Because
plaintiffs failed to meet their burden of proving innocence, we reverse the judgment
and render a take-nothing judgment for the United States.
JUDGMENT REVERSED AND RENDERED FOR THE UNITED
STATES.

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