Jorge A. PARET-RUIZ, Plaintiff, Appellant, v. UNITED STATES of America, Defendant, Appellee.
No. 14-2134
United States Court of Appeals, First Circuit.
June 28, 2016
827 F.3d 167
IV.
We need go no further. For the reasons elucidated above, the appellant‘s sentence is
Affirmed.
Steve Frank, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, with whom Benjamin Mizer, Principal Deputy Assistant Attorney General, Rosa E. Rodriguez-Velez, United States Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil Division, U.S. Department of Justice, were on brief, for appellee.
Before TORRUELLA, LIPEZ, and THOMPSON, Circuit Judges.
LIPEZ, Circuit Judge.
Appellant Jorge Paret-Ruiz (“Paret“) was convicted and imprisoned for nearly four years on drug conspiracy charges that a previous panel of this court concluded were not supported by the evidence produced at his trial. See United States v. Paret-Ruiz, 567 F.3d 1 (1st Cir. 2009). The charges also led to Paret‘s forfeiture of two trucks and a boat. Following the reversal of his conviction, Paret filed this civil suit under the Federal Tort Claims Act (“FTCA“), alleging, inter alia, false arrest and imprisonment, malicious prosecution, and the unlawful deprivation of his property. The district court found no basis for relief on any of Paret‘s claims.1 Having
I. Background
In recounting the background of this appeal, we describe the evidence as presented in Paret‘s criminal and civil proceedings without drawing inferences in favor of either party. Where facts are disputed, we identify them as such.
A. The Criminal Proceedings
Paret‘s arrest followed an investigation in which a confidential informant for the Federal Bureau of Investigation (“FBI“) and a special agent for the Drug Enforcement Administration (“DEA“), posing as drug traffickers, had numerous encounters with Paret by phone and in person. As described in our prior opinion, the government‘s case at trial consisted primarily of the testimony of the agent, Jesus Gonzalez, supported by audio recordings and transcripts of conversations between Paret and Gonzalez. See id. at 2-5. According to Gonzalez, Paret became a DEA target in early 2004 after he told the FBI informant he was looking for a boat to transport drugs from other Caribbean islands to Puerto Rico. Id. at 3. On multiple occasions, Paret told Gonzalez of his discussions with unidentified individuals who were to secure the drugs that Gonzalez would be hired to transport. Id. at 3-4. At one point, Gonzalez gave Paret $2000 that Gonzalez told Paret to use, at least in part, to travel to Antigua to confirm the availability of drugs there. Id. at 4; Paret-Ruiz v. United States, No. 11-1404 (SCC), 2014 WL 4729122, at *1 (Sept. 23, 2014). Paret did not make such a trip.
Gonzalez‘s encounters with Paret ended in March 2004, after Paret told the agent he had been unable to reach an agreement with his intended drug source on the transportation fee. 567 F.3d at 4. Paret suggested holding off on further negotiation because other individuals with whom he had been in contact had been arrested. Id. Paret and Gonzalez had no further conversation. Id. at 6-7. However, Gonzalez testified that he was able to identify two men whom he believed were Paret‘s contacts—Efrain Santana-Ortiz (“Santana“) and Adalberto Coriano-Aponte (“Coriano“)—and he subsequently met with Coriano to discuss transporting cocaine. See id. at 4. In addition, Gonzalez reported a conversation between the FBI informant and Santana, in which—according to the informant—Santana confirmed Paret‘s statement that negotiations for a drug transport had broken down over the fee. See id. at 4-5.
Paret, Santana and Coriano subsequently were charged, in two counts, with conspiracy to import and conspiracy to possess five or more kilograms of cocaine with intent to distribute. The indictment contained a third count for forfeiture of “any property constituting, or derived from, any proceeds that the defendant obtained directly or indirectly ... as a result of such violation or that facilitated the commission of such violation, up to the amount of four million eighty five thousand dollars ($4,085,000.00).” Paret was arrested on August 12, 2005, and ordered detained pending trial, which took place in June 2006.
At trial, following presentation of the government‘s case, Paret testified in his own defense. He initially acknowledged that he had unsuccessfully attempted to secure a load of drugs for Gonzalez to
The jury found Paret guilty on the two conspiracy counts, and the court ordered forfeiture in the amount of $20,000 on the third count. Nearly three years later, in May 2009, this court set aside the convictions. Noting that “[t]his is a close case,” the panel held that “there is a lack of sufficient evidence showing that [Paret] actually reached an agreement to act in concert with Santana and Coriano.” 567 F.3d at 7 (internal quotation marks omitted). The panel observed that, despite “evidence of numerous discussions between [Paret] and several unidentified individuals regarding available cocaine loads as well as evidence of Paret-Ruiz‘s desire to effectuate a cocaine deal,” Gonzalez‘s testimony “establish[ed] that an agreement existed only between Paret-Ruiz and Agent Gonzalez.” Id. Paret was released from custody on June 15, 2009.
B. The Administrative Forfeiture
In addition to including a forfeiture count in the indictment, the government initiated civil forfeiture of two trucks and a boat that it had seized from Paret. See
1. Legal Background
The government may obtain civil forfeiture of property associated with criminal activity through proceedings that may be either judicial or nonjudicial in nature—
Once a civil declaration of forfeiture is issued, whether administratively or through a judicial proceeding, the forfeiture is generally challengeable only on the basis of inadequate notice. See Caraballo v. United States, 62 Fed.Appx. 362, 363 (1st Cir. 2003) (per curiam);
Two aspects of civil forfeiture are of particular note here. First, the government may pursue civil forfeiture simultaneously with a criminal prosecution that includes a forfeiture count. See
2. Paret‘s Administrative Forfeiture
Paret does not dispute that he received the statutorily required notice of the seizure of his trucks and boat.7 Indeed, he submitted a written claim for the vehicles that was twice rejected for failing to conform to statutory requirements: first, because it was not made under oath, see
C. The Civil Lawsuit
In September 2010, about a year after his release from prison, Paret filed an administrative claim with the DEA alleging damages of $585,000 stemming from his arrest, prosecution, and the forfeiture of his property. The DEA denied the claim, and Paret then filed this lawsuit under the FTCA asserting causes of action for false arrest and imprisonment, malicious prosecution, excessive force, and improper taking of his property. The district court dismissed the claims alleging physical harm and the unconstitutional taking of his property,8 but allowed the remaining claims to go forward.
A bench trial was held on the claims for false arrest and imprisonment,9 malicious prosecution, and tortious deprivation of property. The court ultimately concluded, however, that the deprivation of property and false imprisonment claims failed as a matter of law, the former because Paret‘s civil forfeiture submission had been untimely and the latter because Paret was
The court also rejected the malicious prosecution claim. Again at the civil trial, Paret admitted telling Gonzalez and the FBI informant that he had been involved in numerous drug activities, but this time explained that he fabricated his ongoing drug ventures because he was drunk and to induce the pair to give him money. He claimed that the informant, Lazaro Herrera, initiated the interactions by coming to his door purporting to need help with flat tires, and thereafter repeatedly asked Paret to join in various criminal activities. When asked why he kept up the charade with police officers if, as he asserted, he knew they were trying to entrap him, Paret again referred to the police plot he had invoked at his criminal trial: “This was a persecution that mutated into a prosecution because since the Puerto Rico police could not do anything, they then sent it to the Federal government.” Pressed further to explain, he said he “believed that when it came to trial everything would come to light,” but then, at trial, he “didn‘t understand the situation, and so [he] ... missed the opportunity to explain to the jury what was really happening.”
Gonzalez, meanwhile, emphasized that his training and experience led him to conclude that Paret was “a legitimate trafficker.” He explained:
I had no doubt. And today I have no doubt that I was dealing with a legitimate drug smuggler.... All the prices, the routes, the amounts, all the details that he was giving were extremely clear and consistent with that of an experienced drug smuggler.... So we continued with the investigation. In DEA we discussed this as we went on and we kept corroborating that in fact we had an interesting investigation and solid investigation to pursue....
Mr. Paret kept bringing up meetings that he had with those, at the time unidentified subjects and called me on several occasions telling me I am meeting with these guys right now, I am meeting with the subjects right now we need to see the boat again, etcetera. So several times he indicated to me clearly that he was just not making it up. He was definitely pursuing this drug smuggling operation.
In evaluating the testimony, the district court saw little evidence of an actual conspiracy: “At the end of the day, the Government offered nothing, beyond Paret‘s own statements, that even hinted that he might be ‘the real deal.‘” 2014 WL 4729122, at *2. On the other hand, the court “discredited] much of Paret‘s self[-]serving testimony.” Id. In addition, although doubting that Paret intended to import drugs with Gonzalez, the court found it “easy to understand why Agent Gonzalez believed in Paret‘s seriousness.” Id. The court concluded its findings of fact as follows: “Put bluntly, there was no reason to think that Agent Gonzalez knew Paret was lying, much less that he was investigating Paret for any impermissible purpose.” Id.
On the basis of that finding—in essence, that Gonzalez pursued Paret in good faith—the court held that Paret could not establish the required element of malice to support his malicious prosecution claim. “At most,” the court stated, Gonzalez “might have misinterpreted some of his conversations with Paret—or been misled by Herrera—but neither of those occur-
The district court thus entered judgment for the United States on all of Paret‘s claims. On appeal, Paret challenges only the rejection of his malicious prosecution and forfeiture-related claims.10
II. Legal Analysis
A. Forfeiture
Generously construed, Paret‘s complaint appears to challenge the forfeiture of his trucks and boat as both an unconstitutional taking and a tortious deprivation of property.11 The district court accepted that two-pronged approach and addressed both claims. It dismissed the constitutional cause of action as untimely, but allowed the statutory (i.e., FTCA) tort claim to proceed to trial. Post-trial, however, the court concluded that the FTCA cannot provide Paret a remedy because “[f]iling a claim under § 983 is the exclusive avenue for seeking a judicial determination in an administrative forfeiture case.” 2014 WL 4729122, at *5.
In rejecting Paret‘s property claims, the district court considered only the administrative, and not the criminal, forfeiture. Noting that Paret‘s post-trial brief had conflated the two, the court explained that “it is only th[e] administrative forfeiture proceeding that Paret is challenging.” Id. at *4. The court pointed out that the order setting $20,000 as the criminal forfeiture amount did not encompass the vehicles. Id. Moreover, the criminal forfeiture had been vacated along with Paret‘s conviction, and Paret was no longer subject to the $20,000 penalty. Id.
Notwithstanding the district court‘s explanation, Paret continues on appeal to blend the administrative and criminal forfeiture proceedings. He concedes that he did not comply with the requirements for disputing a civil forfeiture, but he seeks to sidestep that default in part by relying on the invalidity of the criminal forfeiture. At oral argument, his attorney opaquely stated that “we‘re not contesting the civil forfeiture to the extent that the damages were also caused in the criminal forfeiture in the taking of his property.” So far as we can tell, Paret‘s premise is that, notwithstanding the finality of the civil forfeiture, he may seek a remedy for the loss of his vehicles because the same deprivation of property was implicated in the criminal forfeiture.
That premise is patently incorrect. As the district court observed, the criminal forfeiture order was necessarily vacated along with Paret‘s convictions on the substantive counts as it depended upon the conviction. At oral argument, government counsel reported that the $20,000 judgment was never satisfied, and Paret does not contend otherwise. However, as described above, civil forfeiture may proceed irrespective of the outcome of related criminal charges. The record shows no connection between the forfeited vehicles—whose combined value Paret estimates at $85,000—and the vacated, unfulfilled $20,000 criminal forfeiture order. In short, Paret‘s loss of property has nothing to do with the criminal forfeiture, and the
As to the administrative forfeiture, Paret offers various arguments about the viability of his deprivation-of-property claim in both its statutory and constitutional forms. However, his contentions rely on a single underlying theory: the government owes him compensation because he ultimately was acquitted of the alleged criminal activity that led to the government‘s seizure of his property. In his view, he is entitled to a remedy for the “wrongful” forfeiture of his vehicles.
The problem with Paret‘s theory is that the forfeiture of his property adhered to the statutory scheme Congress enacted. As described above,
“A motion filed under this subsection [relating to notice] shall be the exclusive remedy for seeking to set aside a declaration of forfeiture under a civil forfeiture statute.”
18 U.S.C. § 983(e)(5) .
Notwithstanding this explicit limitation, Paret looks to sources that more generally provide remedies for governmental deprivations of property, i.e., the FTCA and the Constitution. Yet he does not explain why he should be able to obtain relief outside
Indeed, as we explain below, the unavailability of relief is reinforced by direct examination of Paret‘s FTCA and constitutional claims.
1. FTCA Claim
The FTCA by its terms disallows Paret‘s claim. The statute permits claims based on the seizure of property for the
2. Constitutional Takings Claim
Paret‘s constitutional cause of action does not fare any better. Prominent among Paret‘s contentions is that the district court erred in dismissing his constitutional claim as time-barred based on a one-year statute of limitations. He argues that the court should have borrowed the six-year limitations period of the Tucker Act. See
The Tucker Act is the constitutional analogue to the FTCA. That is, like the FTCA, which waives sovereign immunity for tort claims against the federal government, the Tucker Act waives sovereign immunity for constitutional claims against the United States. See
Sovereign immunity protects the United States from suit absent consent that is “unequivocally expressed.” United States v. Bormes, — U.S. —, 133 S.Ct. 12, 16, 184 L.Ed.2d 317 (2012) (internal quotation marks omitted). As a general matter, the Tucker Act provides the necessary consent for, inter alia, “any claim against the United States founded ... upon the Constitution.”
In Bormes, the Supreme Court considered the availability of a Little Tucker Act claim based on the Federal Credit Reporting Act (“FCRA“). The Court observed that the FCRA “‘set[s] out a carefully circumscribed, time-limited, plaintiff-specific’ cause of action” and also identifies the forum for such claims. Id. at 19 (quoting Hinck v. United States, 550 U.S. 501, 507, 127 S.Ct. 2011, 167 L.Ed.2d 888 (2007)). This “self-executing remedial scheme,” the Court concluded, “supersedes the gap-filling role of the Tucker Act” in providing a remedy for an asserted FCRA violation. Id. at 18.
The civil forfeiture scheme at issue in this case is similarly specific. Congress has authorized the seizure and forfeiture of particular types of property, see
Paret, of course, relies on the Constitution, not the forfeiture statute itself, in asserting an unlawful taking of his property. Yet, the question necessarily remains whether the Tucker Act waives the United States’ sovereign immunity for his claim, and Congress‘s chosen remedies remain relevant in ascertaining the answer. To allow a constitutional takings claim of the sort Paret seeks to bring arguably would “frustrate congressional intent with respect to the specific remedial scheme already in place.” Bormes, 133 S.Ct. at 18; see also Mesa Valderrama v. United States, 417 F.3d 1189, 1195 (11th Cir. 2005) (stating that “a party seeking to challenge a nonjudicial forfeiture that falls within CAFRA‘s purview is limited to doing so under
We need not—and, indeed, should not—say more on the applicability of the Tucker Act. Even if a constitutional takings claim could somehow survive the “exclusive” remedy provided by the forfeiture statute, Paret‘s claim cannot succeed because it was improperly brought in the district court and improperly appealed to us. As noted above, the Court of Claims has exclusive jurisdiction for constitutional claims against the United States exceeding $10,000. See supra note 16. We thus “have no jurisdiction to consider a taking claim where the amount in controversy exceeds” that amount. Hammond v. United States, 786 F.2d 8, 15 (1st Cir. 1986); see also Knott v. FERC, 386 F.3d 368, 374 (1st Cir. 2004). Paret sought a total of $585,000 in damages, of which $85,000 was for the loss of the trucks and boat. Accordingly, the Tucker Act‘s six-year statute of limitations has no role to play here.17
In sum, Paret‘s opportunity for a remedy in district court resided solely in the provisions of
B. Malicious Prosecution
Under Puerto Rico law, a plaintiff must prove four elements to succeed on a claim of malicious prosecution: (1) the defendant “initiated or instigated” a criminal action, (2) the action terminated in favor of the plaintiff, (3) the defendant acted with malice and without probable cause, and (4) the plaintiff suffered damages. Barros-Villahermosa v. United States, 642 F.3d 56, 58 (1st Cir. 2011). “For purposes of malicious prosecution, Puerto Rico courts equate malice with bad faith.” Id. at 59.
As described above, the district court concluded that Paret had failed to prove malice, the only element disputed by the government. Paret challenges that conclusion, arguing that Agent Gonzalez manifested bad faith by falsely telling the grand jury he had evidence of Paret‘s participation in a drug trafficking conspiracy. Paret asserts that Gonzalez could prove only that Paret interacted with government agents (i.e., Gonzalez and the FBI informant, Herrera) about importing drugs, not with other culpable actors, and Gonzalez thus had an inadequate factual basis to seek an indictment. See Paret-Ruiz, 567 F.3d at 6 (stating that, “as a matter of law, there can be no conspiracy between a defendant and a government agent“).
We review a district court‘s findings after a bench trial for clear error, “‘giv[ing] due regard to the trial court‘s opportunity to judge the witnesses’ credibility.‘” Gonzalez-Rucci v. INS, 539 F.3d 66, 69 (1st Cir. 2008) (quoting
This is a permissible view of the evidence. Regardless whether Paret was merely “playing the undercover agents for
This court‘s previous decision vacating Paret‘s drug conspiracy conviction does not point to a different outcome. We deemed the case “close” in a context that required proof of Paret‘s guilt beyond a reasonable doubt, a higher degree of certainty than the probable cause standard applicable to the charging decision. Paret-Ruiz, 567 F.3d at 7. Moreover, we do not assess witness credibility when we evaluate the sufficiency of the evidence in a criminal case, id. at 5, but the factfinder‘s credibility assessment in a civil trial, as noted above, holds weight, see Janeiro v. Urological Surgery Prof‘l Ass‘n, 457 F.3d 130, 138-39 (1st Cir. 2006) (“[I]f the trial court‘s reading of the record [with respect to an actor‘s motivation] is plausible, appellate review is at an end.” (second alteration in original) (quoting Smith v. F.W. Morse & Co., 76 F.3d 413, 420 (1st Cir. 1996))).
Having confirmed that the credibility judgment in this instance finds support in the record, we discern no clear error in the district court‘s determination that Gonzalez did not act in bad faith and, hence, that Paret failed to prove the malice element of his malicious prosecution claim.
III. Conclusion
Paret‘s forfeiture-based claim was properly dismissed because he has no remedy under the FTCA and the district court had no jurisdiction to consider his constitutional takings claim. Paret‘s challenge to the district court‘s rejection of his malicious prosecution claim also fails, as we detect no clear error in the court‘s finding that Gonzalez did not act maliciously in pursuing the drug conspiracy indictment. Judgment for the government on each of these claims is therefore affirmed.
So ordered.
Notes
Q. After that meeting, did you try to secure a load of drugs for [Gonzalez] to bring into Puerto Rico?
A. Yes, that‘s right, on that occasion.
Q. Did you ever succeed in negotiating to import any loads of drugs from anywhere to Puerto Rico?
A. No. No, sir.
Q. But you tried?
A. That‘s right.
(1) Any person entitled to written notice in any nonjudicial civil forfeiture proceeding under a civil forfeiture statute who does not receive such notice may file a motion to set aside a declaration of forfeiture with respect to that person‘s interest in the property, which motion shall be granted if—
(A) the Government knew, or reasonably should have known, of the moving party‘s interest and failed to take reasonable steps to provide such party with notice; and
(B) the moving party did not know or have reason to know of the seizure within sufficient time to file a timely claim.