NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

GHASSAN HOUBOUS BOUARI, 

 Plaintiff-Appellant, 

 v. 

UNITED STATES OF AMERICA, 

 Defendant-Appellee.

No. 21-16762 

D.C. No. 

2:21-cv-00226-JCM-VCF 

MEMORANDUM* 

GHASSAN HOUBOUS BOUARI, 

 Plaintiff-Appellant, 

 v. 

UNITED STATES OF AMERICA; 

CHARLES RO, FBI; DENNIS LAO, FBI; 

ELENA IATAROLA, FBI, 

 Defendants-Appellees.

No. 21-16763 

D.C. No. 

2:18-cv-00219-JCM-BNW 

Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted December 9, 2022

Pasadena, California

 * This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

FILED

FEB 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: BERZON, R. NELSON, and BADE, Circuit Judges.

Dissent by Judge BERZON.

In these two cases, consolidated for appeal,1 Appellant Ghassan Houbous 

Bouari asserted malicious prosecution and intentional infliction of emotional distress

(IIED) claims against the United States under the Federal Tort Claims Act (FTCA), 

and Fourth Amendment unlawful seizure claims against two FBI agents under 

Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics, 403 U.S. 

388 (1972). In both cases, Bouari alleged that he was arrested, indicted, and held in 

pretrial detention for 560 days without probable cause before the government 

dismissed the charges against him.2

 The government moved to dismiss Bouari’s 

FTCA and Bivens claims, and the district court granted both motions. Bouari timely 

appealed. We review a district court’s grant of a motion to dismiss de novo, Vega 

v. United States, 881 F.3d 1146, 1152 (9th Cir. 2018), and we affirm.

“Want of probable cause” is a necessary element of Bouari’s malicious 

prosecution claims. See Thompson v. Clark, 142 S. Ct. 1332, 1337–38 (2022) 

(requiring “wrongful initiation of charges without probable cause” for constitutional 

1 These appeals, which were consolidated for argument, are now consolidated for 

disposition. 

2 In the dismissed charges the government alleged that Bouari participated in a 

money laundering scheme, and a federal grand jury returned an indictment charging 

Bouari with aiding and abetting and conspiracy to commit money laundering in 

violation of 18 U.S.C. § 1956(a)(3)(A)–(B) and 18 U.S.C. § 2.
3 

malicious prosecution claim); Jordan v. Bailey, 944 P.2d 828, 834 (Nev. 1997) 

(requiring “want of probable cause” for the Nevada tort of malicious prosecution). 

The district court found that the facts, as alleged in Bouari’s complaints, constituted

probable cause to prosecute him.

We agree. Bouari was charged with two counts in the indictment.

3

 Count 

Twelve charged Bouari and his half-brother (the primary defendant in the scheme)

with money laundering and “aiding and abetting one another and others.”4

 Aiding 

and abetting under 18 U.S.C. § 2 requires “(1) that the accused had the specific intent 

to facilitate the commission of a crime by another, (2) that the accused had the 

requisite intent of the underlying substantive offense, (3) that the accused assisted or 

participated in the commission of the underlying substantive offense, and (4) that 

someone committed the underlying substantive offense.” United States v. Gaskins, 

849 F.2d 454, 459 (9th Cir. 1988). “Intent [to aid and abet a crime] can be inferred 

3 We may consider the indictment because Bouari’s complaints incorporate it by 

reference. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018).

4 Bouari contends that the district court erred in finding that he was charged with one 

offense in Count Twelve: aiding and abetting money laundering. He argues that

Count Twelve charged him with two offenses: substantive money laundering and

aiding and abetting, as a separate offense. But “there is no distinction between 

aiding-and-abetting liability and liability as a principal under federal law. ‘Aiding 

and abetting is not a separate offense; it is simply one means of committing the 

underlying crime.’” Young v. United States, 22 F.4th 1115, 1122 (9th Cir. 2022) 

(quoting Ortega-Lopez v. Barr, 978 F.3d 680, 687 n.9 (9th Cir. 2020)). The district 

court therefore did not err by identifying only one charge against Bouari in Count 

Twelve: aiding and abetting money laundering.
4 

from circumstantial evidence.” United States v. Vaccaro, 816 F.2d 443, 455 (9th 

Cir. 1987), abrogated on other grounds by Huddleston v. United States, 485 U.S. 

681 (1988).

Count Thirteen charged Bouari and others with conspiracy to commit money 

laundering. Money laundering conspiracy under 18 U.S.C. § 1956(h) requires (1) 

an agreement to commit money laundering; (2) that the defendant knew the objective 

of the agreement; and (3) that the defendant joined the agreement with the intent to 

further its unlawful purpose. United States v. Jaimez, 45 F.4th 1118, 1124 (9th Cir. 

2022). “A defendant’s knowledge of and participation in a conspiracy may be 

inferred from circumstantial evidence and from evidence of the defendant’s actions.” 

United States v. Batimana, 623 F.2d 1366, 1368 (9th Cir. 1980).

Bouari acknowledges that he brought a money counting machine to his 

half-brother’s hotel room where $60,000 in illicit funds were counted. And he 

remained in the hotel room after bringing the money counting machine while the 

money was counted. As the district court found, these facts, as alleged by Bouari,

are sufficient evidence to find that probable cause supported the charges that Bouari 

committed aiding and abetting money laundering, and conspiracy to commit money 

laundering, as alleged in Counts Twelve and Thirteen of the indictment.5

5 The district court also took judicial notice of a statement made by Bouari’s 

half-brother that was not necessary to its holding, but “buttress[ed]” its finding of 

probable cause. Although the allegations in Bouari’s complaint are sufficient to find 
5 

Bouari argues that the district court erred in finding probable cause supported 

the charges because aiding and abetting and conspiracy require that the defendant 

had the intent necessary to commit the underlying offense—money laundering—and 

he did not have that intent. But the intent required for aiding and abetting or

conspiracy can be satisfied with circumstantial evidence. Vaccaro, 816 F.2d at 455; 

Batimana, 623 F.2d at 1368. And a finding of probable cause does not require 

evidence sufficient to support a conviction. See District of Columbia v. Wesby, 138 

S. Ct. 577, 586 (2018) (“[Probable cause] requires only a probability or substantial 

chance of criminal activity, not an actual showing of such activity.” (internal 

quotation marks and citation omitted)). Moreover, the intent “to promote the 

carrying on of specified unlawful activity” or the intent “to conceal or disguise . . . 

property believed to be the proceeds of specified unlawful activity” is sufficient for 

the underlying money laundering offense. 18 U.S.C. § 1956(a)(3)(A)–(B). Bouari’s 

actions constitute circumstantial evidence to supply probable cause to believe that 

Bouari had this intent.

6

 Contrary to the dissent’s assertion, Bouari’s actions are, at 

probable cause, we also hold that the district court did not abuse its discretion by 

judicially noticing this statement because the district court noticed the statement only 

for its existence and not for what it asserted. See Khoja, 899 F.3d at 999–1001; Lee

v. City of Los Angeles, 250 F.3d 668, 689–90 (9th Cir. 2001).

6 Bouari’s allegation that the FBI agents falsely testified that they represented to 

Bouari that the money was illicit does not change this conclusion because the 

representation requirement under § 1956(a)(3) is not a necessary element of aiding 

and abetting or conspiracy. See Rosemond v. United States, 572 U.S. 65, 73 (2014)
6 

a minimum, “slight, even marginal” evidence to “create a reasonable inference” that 

Bouari had this intent—and that is enough for probable cause. State v. Boueri, 672 

P.2d 33, 36 (Nev. 1983); see also Vaccaro, 816 F.2d at 455; McFadden v. United 

States, 576 U.S. 186, 192 n.1 (2015) (mental state can be proven based on 

circumstantial evidence, including the suspect’s actions).

Like the district court, we also find that Bouari’s IIED claim fails because 

IIED requires extreme and outrageous conduct. See Miller v. Jones, 970 P.2d 571, 

577 (Nev. 1998) (stating the elements of an IIED claim under Nevada law). Here,

however, Bouari’s arrest, subsequent indictment, and pretrial detention were not 

extreme and outrageous because the prosecution was based on probable cause.

Likewise, because there was probable cause, we need not reach the question of 

whether Bouari’s Bivens claim for Fourth Amendment malicious prosecution is 

cognizable or whether the agents were entitled to qualified immunity.

AFFIRMED.

(“A defendant can be convicted as an aider and abettor without proof that he 

participated in each and every element of the offense.” (cleaned up)); Salinas v. 

United States, 522 U.S. 52, 64 (1997) (“A person, moreover, may be liable for 

conspiracy even though he was incapable of committing the substantive offense.”).
1

Ghassan Houbous Bouari v. United States of America, Nos. 21-16762, 21-16763

BERZON, Circuit Judge, dissenting:

I respectfully dissent.

The government did not establish probable cause for the aiding and abetting 

and conspiracy charges against Bouari. Not “enough evidence [was presented] to 

create a reasonable inference” that Bouari had the requisite intent under the 

applicable statutes. State v. Boueri, 99 Nev. 790, 795 (1983).

To be criminally liable for aiding and abetting or conspiracy, a defendant 

must have the same intent as that necessary for the underlying substantive offense. 

See United States v. Gaskins, 849 F.2d 454, 459 (9th Cir. 1988); United States v. 

Collazo, 984 F.3d 1308, 1320 (9th Cir. 2021). 18 U.S.C. § 1956(a)(3) states that an 

individual convicted of money laundering must either have the intent “to promote 

the carrying on of specified unlawful activity” or the intent “to conceal or 

disguise . . . property believed to be the proceeds of specified unlawful activity” 

(emphasis added).1 The statute defines the term “specified unlawful activity,”

listing the qualifying crimes at 18 U.S.C. § 1956(c)(7). There is no evidence

sufficient to support probable cause that Bouari knew that the money at issue was 

1 The third option for specific intent under 18 U.S.C. § 1956(a)(3)—“to 

avoid a transaction reporting requirement under State or Federal law”—is not 

relevant here.

FILED

FEB 7 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2

derived from drug trafficking and sex trafficking, the unlawful activities specified 

by the government in the indictment.

Bouari’s complaint alleged that he did not have any knowledge regarding a 

specified unlawful activity that generated the funds, and that Ro and Lao had

fabricated testimony that Bouari “had been informed that the funds were derived 

from a specified unlawful activity.” Bouari’s actions with respect to the money 

counting machine alone do not supply probable cause that Bouari intended to 

promote drug and sex trafficking or intended to conceal the proceeds of drug and 

sex trafficking activities. His half-brother’s judicially noticed statements make no 

reference to any specified unlawful activity and so do not change the calculus. And 

the government cannot rely on the presumption of probable cause created by the 

grand jury indictment, because Bouari alleged that the indictment was predicated 

on false testimony and that there was no other evidence that he knew about the 

specified unlawful activity. See Manuel v. City of Joliet, 580 U.S. 357, 367 (2017).

Bouari has thus sufficiently demonstrated at this stage in the proceedings that the 

government lacked probable cause for the aiding and abetting and conspiracy 

charges against him.
3

The government’s substantive money laundering theory fares no better.2 In 

addition to failing to demonstrate that Bouari possessed the requisite specific intent 

(as I have explained), the government did not show that a law enforcement officer 

or an officer’s designee represented to Bouari that that the money was the product 

of specified unlawful activity, as required by the statute.

3 See 18 U.S.C. 

§ 1956(a)(3). Lacking probable cause for two required elements of the substantive 

theory of the offense, the government did not have sufficient evidence to charge

Bouari on that theory on the facts alleged.

For these reasons, I would vacate the district court’s order dismissing 

Bouari’s FTCA lawsuit and remand for further proceedings.

2 According to the text of the indictment and the government’s concessions, 

the government charged Bouari under a substantive money laundering theory as 

well. Count 12 states that “Emile Edward Bouari, and Ghassan Bouari Housbous

[sic], . . . aiding and abetting one another and others, . . . did knowingly conduct 

and attempt to conduct a financial transaction . . . involving property represented 

by a federal law enforcement officer to be proceeds of specified unlawful activity.” 

As the government explained in its briefing before the district court, “the 

indictment charged both [Ghassan Bouari] and his brother, Emile Bouari, with 

money laundering and aiding and abetting. It does not specify which brother 

committed the substantive offense and which brother aided and abetted.”

3 Although a defendant can face the same liability whether charged under a

substantive or aiding and abetting theory, the majority clearly recognizes, in its 

discussion of the representation requirement under 18 U.S.C. § 1956(a)(3), that the 

elements needed to prove the two theories are distinct. See Mem. Disp. at 6 n.6.