Hernandez-Cuevas v. Taylor , 836 F.3d 116 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2247
CARLOS D. HERNANDEZ-CUEVAS,
Plaintiff, Appellant,
v.
WILLIAM TAYLOR; STEVEN W. MARTZ,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Pedro R. Vázquez, III, with whom Jose F. Quetglas Jordan and
Quetglas Law Offices were on brief, for appellant.
Leah Brownlee Taylor, Trial Attorney, with whom Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil
Division, Rosa Emilia Rodríguez-Vélez, United States Attorney,
Rupa Bhattacharyya, Director, Torts Branch, Civil Division, and
Lisa Bhatia, Assistant United States Attorney, were on brief, for
appellees.
September 9, 2016
LIPEZ, Circuit Judge. We revisit here appellant Carlos
Hernandez-Cuevas's ("Hernandez") Fourth Amendment claim of
malicious prosecution, actionable under Bivens v. Six Unknown
Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1
We first encountered Hernandez's case when defendants William
Taylor and Steven Martz -- both FBI special agents ("SAs") --
brought an interlocutory appeal challenging the district court's
denial of qualified immunity. See Hernandez I, 723 F.3d at 96.
We affirmed, concluding that the facts alleged in Hernandez's
complaint, viewed in the light most favorable to him, stated a
plausible claim that Taylor and Martz violated Hernandez's "Fourth
Amendment right to be free from seizure but upon probable cause."
Id. at 102, 105. The case returned to the district court for
trial. After Hernandez presented his evidence, the court granted
Taylor and Martz's motion for judgment as a matter of law and
dismissed the case with prejudice. We agree that a reasonable
jury would not have a legally sufficient evidentiary basis to find
for Hernandez, and we detect no other legal error in the district
court's decision. We therefore affirm.
1 "A Bivens action is a civil action brought against agents
of the United States . . . . 'This implied cause of action is the
federal analog to § 1983 suits against state officials.'"
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013)
("Hernandez I") (quoting Soto–Torres v. Fraticelli, 654 F.3d 153,
158 (1st Cir. 2011)).
- 2 -
I.
A. Factual Background
In Hernandez I -- a challenge to the district court's
denial of qualified immunity -- we recounted the facts as presented
in Hernandez's complaint and the documents it incorporated. 723
F.3d at 94. Here, on appeal from the district court's judgment as
a matter of law, we recount the facts based on "the evidence and
reasonable inferences drawn from the evidence," in the light most
favorable to Hernandez, the nonmoving party.2 Malone v. Lockheed
Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010) (quoting Espada v.
Lugo, 312 F.3d 1, 2 (1st Cir. 2002)); see also J.R. v. Gloria, 593
F.3d 73, 76 (1st Cir. 2010).
1. The Transaction
In 2003, the FBI began a multi-year investigation into
an international drug and money laundering scheme that spanned New
Jersey, New York, Puerto Rico, and Colombia. Agents from FBI San
Juan and FBI Newark -- including SAs Taylor and Martz --
participated in the investigation, known as "Para Cash." Through
the course of the investigation, SAs Taylor and Martz, along with
SA Luis Rodriguez, worked with a confidential informant
("informant") to infiltrate the drug ring. SAs Taylor, Martz, and
2Specifically, we draw the facts from the parties'
stipulations, the evidence presented at trial, and the joint
appendix submitted by the parties on appeal.
- 3 -
Rodriguez met in person and spoke on the phone with the informant
multiple times.
In July 2004, Rodriguez, Martz, and the informant
traveled to Puerto Rico for an arranged pick-up of approximately
$322,000 from an unknown courier. Taylor was not in Puerto Rico
at the time of the scheduled exchange. On July 20, 2004, the
informant met the courier at a supermarket parking lot in Isla
Verde, Carolina. Throughout the transaction, Rodriguez and Martz
were hidden from view, and SA Regino Chavez observed the
transaction from a distance of "fifty or more meters away . . .
without the aid of lenses, glasses or binoculars."
The unidentified courier arrived alone at the meeting,
driving a gray Mitsubishi Montero. The courier and the informant,
who was wearing a body wire, then had a conversation about the
transaction but did not exchange the money. The courier drove
away, and Rodriguez and Martz debriefed the informant, who informed
the SAs that the courier said he would return in a half hour.
About a half hour later, the courier returned, but this time he
was the passenger in a white Jeep Cherokee,3 driven by another
3
The driver of the Mitsubishi Montero and the passenger in
the Jeep Cherokee are referred to as "UNSUB #1" and "UNSUB #3,"
respectively, in the FBI's surveillance report of the transaction.
However, at trial, Taylor testified that the labels "UNSUB #1" and
"UNSUB #3" referred to the same individual -- referred to herein
as the "courier" -- and that he confirmed this based on the
recorded conversation obtained from the informant's body wire.
Martz also testified that the courier from the first vehicle was
- 4 -
unidentified individual ("the driver"). The Cherokee pulled up
alongside the informant's car so that the passenger window of the
Cherokee was next to the driver's side of the informant's car.
After the courier and the informant spoke from their cars, the
courier and the driver of the Cherokee got out of their vehicle
and at least one of them placed two bags of money in the trunk of
the informant's car. The driver and courier then returned to their
vehicle and drove away.
FBI surveillance agents followed the Jeep Cherokee and
saw the courier exit the car at 1655 Santa Ana Street and walk
into the porch area of the residence. The courier was not arrested
at that time. The Cherokee then continued onto a highway, after
which a marked unit of the Puerto Rico Police Department conducted
a traffic stop of the Cherokee, but the officers did not arrest
the driver.
2. Post-Transaction Reports and Surveillance
Martz testified that he debriefed the informant
following the transaction and took handwritten notes of the
exchange on July 20, 2004 -- the day of the transaction. The
informant described the courier as "thirty-nine to forty-one (39-
41) [years old], black, . . . [with a] big stomach, fat, wearing
a blue shirt," and "Puerto Rican." In Martz's typed FBI report,
the same individual as the passenger in the second vehicle.
Hernandez offered no evidence to rebut this testimony.
- 5 -
which was transcribed on August 10, the courier is described as "a
fat, dark skin, Puerto Rican male with a big stomach, approximately
39-41 years of age, 5'10" tall wearing a light blue shirt." Based
on his surveillance of the transaction, SA Chavez also filed an
FBI report that was dictated on July 30 -- ten days after the
transaction -- and transcribed on August 1. SA Chavez's
surveillance report described the courier as "[m]ale," "[b]lack,"
"5'7"," "[h]eavy," in his "[l]ate [f]ifties," and wearing a "[b]lue
shirt and brown pants."
Nearly six months later, at the request of FBI Newark,
FBI San Juan conducted "spot check" surveillance of 1655 Santa Ana
Street -- the residence where the driver dropped off the
courier –- to identify residents of the address. According to the
FBI report completed by SA Madeline Albrecht on February 22, 2005,
vehicle registration information and/or utilities checks linked
five individuals to the address.4 Hernandez, whose gray Infiniti
was parked in front of the residence and registered to its address,
was the only male identified in SA Albrecht's report. Hernandez's
car was not connected to the July 20 transaction.
On March 2, 2005, FBI Newark requested that FBI San Juan
obtain a photograph of Hernandez and additional information about
4Hernandez testified that the dwelling was "divided into some
seven (7) or eight (8) rooms and those rooms would be rented
separately to different persons."
- 6 -
him. The Department of Motor Vehicles ("DMV") provided a photo of
Hernandez from the shoulders up and a description of him as male,
5'11", 40 years of age, 185 pounds, and a "medio marrón"
complexion. For reader ease, the multiple FBI-recorded
descriptions of the courier and the DMV description of Hernandez
are provided in the chart below.
SA Martz - SA Martz - FBI SA Chavez - FBI DMV-
informant Report, Report, provided
debrief, July transcribed dictated July description
20, 2004 August 10, 2004 30, 2004, of
transcribed Hernandez
August 1, 2004
Male Male Male
Black Black Dark Skin "[M]edio
marrón"
Puerto Rican Puerto Rican
Heavy set; big Fat; big stomach Heavy 185 pounds
stomach
~39-41 years Approximately Late Fifties 40 years
old 39-41 years old old
5'10" 5'7" 5'11"
Blue shirt Wearing a light Wearing a blue
blue shirt shirt and brown
pants
3. The Photographic Array
After receiving the photograph and DMV description of
Hernandez, SA Martz gave the photo to FBI Newark's photo lab
specialists to assemble a photographic array. Martz testified
that he emailed the photo array to the informant, who was in
Colombia at the time, on May 25, 2005 -- nearly ten months after
the transaction took place. Martz and Taylor spoke with the
informant over the phone the day after emailing him the photo
- 7 -
array. When asked at trial who was physically with the informant
during the identification, both Taylor and Martz testified that
they believed him to be alone.
Over the phone, the informant identified the photo of
Hernandez as the courier. Martz recalled asking the informant "if
he was sure, and he said he was positive." Martz asked the
informant "why he was positive and he said because he had met the
individual twice" on the day of the transaction -- once when the
courier came in the Mitsubishi Montero and the second time when he
came in the Jeep Cherokee. In his handwritten notes detailing the
call, Martz wrote that the informant was "very sure[,]
positive[,] . . . saw 2x."
4. The Government's Arrest, Detainment & Release of
Hernandez
On the day the informant identified Hernandez as the
courier, Taylor ran a background check on Hernandez that "showed
there was no prior criminal record" linked to him. That same day,
Taylor drafted an FBI report, which named Carlos D. Hernandez
Cuevas as a courier in the Para Cash transaction.
Subsequently, Taylor assembled the materials relating to
the investigation, including recordings and transcripts, and sent
the information to the U.S. Attorney's Office in Newark, New
- 8 -
Jersey.5 Assistant U.S. Attorney ("AUSA") Robert Frazer was
assigned to prosecute cases arising out of the Para Cash
investigation. The parties stipulated that "the decision to charge
Hern[a]ndez with criminal activity was made exclusively by the
Newark, New Jersey U.S. Attorney's Office."
In support of the criminal complaint filed against
Hernandez, AUSA Frazer drafted an affidavit, which SA Taylor then
signed. In the affidavit, Taylor attested that "[o]n or about
July 20, 2004, in Puerto Rico, defendant CARLOS HERNANDEZ
CUEVAS . . . delivered approximately $321,956 in United States
currency, which was the proceeds of narcotics trafficking, to [the
informant]." To corroborate his identification of Hernandez as
the courier, Taylor testified that he considered SA Chavez's
surveillance report, as well as the body wire transcripts, the
debriefing of the informant, and the spot surveillance of the
residence at 1655 Santa Ana Street, among other things.
AUSA Frazer filed a complaint and warrant request -- with
Taylor's affidavit attached -- for Hernandez's arrest, and a
magistrate judge issued the warrant. Pursuant to the warrant, the
FBI arrested Hernandez at his home on December 3, 2007. On
December 6, Hernandez appeared before a federal magistrate judge
in Puerto Rico. At that point, Hernandez's lawyer presented to
5
Martz's involvement in Para Cash ceased by September 2005;
Taylor, however, remained assigned to the investigation.
- 9 -
the court Hernandez's passport, "to show his presence in the
Dominican Republic around the time period of the transaction."
Nevertheless, Hernandez was not granted bail or released.
Following his arrest, Hernandez was held in "federal
jail" in Puerto Rico for over two months, and then transferred to
a facility in Miami for two or three days, to a facility in Oklahoma
for one day, and finally to a facility in New Jersey for his court
appearance in the District of New Jersey on February 29, 2008. At
the court appearance, AUSA Frazer asked that Hernandez be released
because the government "need[ed] to do some more investigation to
confirm what . . . is a serious doubt as to . . . the correct
identity of the perpetrator in this case." The court agreed on
the condition that Hernandez surrender his passport. Later that
day, Hernandez was released on his own recognizance. Two months
later, the U.S. Attorney for the District of New Jersey dismissed
the complaint against Hernandez.
5. Hernandez's Background & Whereabouts in July 2004
Hernandez, who was born in the Dominican Republic, moved
to Puerto Rico in 1992 to take a course organized for track and
field trainers by the International Olympic Committee. When he
moved to Puerto Rico, he also was an athlete member of the
Dominican Republic's National Team. After holding jobs in the
construction and restaurant industries, he was appointed vice
president of the Track and Field Dominican Federation abroad as
- 10 -
well as Sports Director for the Dominican Republic, serving from
the country's consulate in Puerto Rico.
According to Hernandez, by 2004, he was working on a
television program called "Evening Express." On July 8, 2004,
twelve days before the Para Cash transaction, Hernandez traveled
by ferry to the Dominican Republic to cover a Central American
basketball tournament for Evening Express and for the Central
American Games. He also had been selected as a delegate for the
Dominican Republic at the 2004 Olympic Games in Athens, Greece.
Hernandez testified that he was in the Dominican Republic on July
20, 2004 -- the date on which the Para Cash transaction took place
in Puerto Rico -- and that he left on August 13, 2004, when he
flew to Greece.6
B. Hernandez I
Hernandez filed suit against Martz and Taylor on March
2, 2009, alleging that they were responsible for his being held in
federal custody for three months without probable cause.
Hernandez I, 723 F.3d at 95–96. Taylor and Martz filed a motion
to dismiss the claims against them, arguing that they were entitled
6Over defendants' objection, the district court admitted
Hernandez's passport into evidence, "subject to the translation
being submitted properly." On appeal, defendants argue that "the
passport was not translated until this appeal and is untimely."
However, we need not consider the admissibility of Hernandez's
passport because we recite above Hernandez's testimony, presented
in the light most favorable to him.
- 11 -
to qualified immunity. Id. at 96. The district court denied the
motion, Taylor and Martz filed an interlocutory appeal, and we
affirmed the district court's judgment. Id. at 93, 96.
In affirming the denial of qualified immunity, we
concluded "that the Fourth Amendment protection against seizure
but upon probable cause does not end when an arrestee becomes held
pursuant to legal process."7 Id. at 99–100. Prior to Hernandez I,
our circuit had not explicitly recognized a Fourth Amendment
protection that extends beyond unlawful arrest to hold law
enforcement officials accountable for malicious prosecution. Id.
at 97. Ordinarily, "the neutral magistrate's determination that
probable cause exists for the individual's arrest is an intervening
act that could disrupt any argument that the defendant officer had
caused the continued unlawful seizure." Id. at 100. In order to
"overcome this causation problem" and show that law enforcement
officers had effected a malicious prosecution, we held that the
7 When analyzing an appeal from a denial of qualified
immunity, we consider whether "(1) the facts alleged show the
defendants' conduct violated a constitutional right, and (2) the
contours of this right are 'clearly established' under then-
existing law so that a reasonable officer would have known that
his conduct was unlawful." Hernandez I, 723 F.3d at 97 (quoting
Santana v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003)). However,
in Hernandez I, the appellees declined to address the "clearly
established" prong of the qualified immunity analysis. Id. We
therefore limited our analysis to whether Hernandez's claim fails
under the first prong. Id.- 12 -
plaintiff had to demonstrate that the officers "were responsible
for his continued, unreasonable pretrial detention." Id.Further, we found that, to succeed, a Bivens action
claiming malicious prosecution in violation of the Fourth
Amendment must establish the elements of a purely constitutional
claim rather than the elements of a blended constitutional/common
law claim, which requires a separate showing of subjective malice.
Id. at 99–100. However, we noted that although "we adopt[ed] a
purely constitutional rather than a blended constitutional/common
law approach, we believe that the practical consequences of this
choice are less significant than they initially appear." Id. at
101.
We reached this conclusion based on the Supreme Court's
decision in Franks v. Delaware, which examined whether a criminal
defendant may "challenge the truthfulness of factual statements
made in an affidavit supporting [a] warrant." 438 U.S. 154, 155
(1978). The Court held that, under the Fourth Amendment, items
discovered pursuant to a search warrant may be suppressed if the
defendant can show that law enforcement officers deliberately or
recklessly included in the affidavit false statements that were
necessary to the finding of probable cause. Id. at 155–56.
Applying this rule in the civil context of a Fourth Amendment
malicious prosecution claim, we concluded that the standard
announced in Franks -- requiring the plaintiff to demonstrate that
- 13 -
statements by law enforcement officers "amounted to 'deliberate
falsehood or . . . reckless disregard for the truth,'" Hernandez I,
723 F.3d at 102 (quoting Franks, 438 U.S. at 171) -- described
"reprehensible behavior [that] seems indistinguishable from the
common law element of malice," id. In other words, a plaintiff
pursuing a Fourth Amendment malicious prosecution claim must
demonstrate that "[law enforcement] officers formulated evidence
essential to the probable cause determination with a mental state
similar to common law malice." Id. at 101.
Having recognized a cognizable legal claim and what
plaintiffs must demonstrate to establish it, we reviewed
Hernandez's complaint and determined that he had alleged a
plausible claim that Taylor and Martz caused him to be held in
federal custody without probable cause. Id. at 105. We thus
remanded the case to the district court for further proceedings.
C. Post-Hernandez I District Court Proceedings
In district court, the parties began discovery, and
Martz and Taylor moved for summary judgment. The magistrate judge
denied the defendants' motion, and the case went to trial.8 After
the testimony of only three witnesses -- Hernandez, Martz, and
Taylor -- Hernandez rested his case. The defendants then moved
for judgment as a matter of law, under Federal Rule of Civil
8Both parties consented to have a magistrate judge conduct
proceedings and enter judgment in this case.
- 14 -
Procedure 50(a). A court may grant a motion for judgement as a
matter of law "[i]f a party has been fully heard on an issue during
a jury trial and the court finds that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the party
on that issue." Fed. R. Civ. P. 50(a)(1).
The magistrate judge granted the motion, concluding that
"Plaintiff Hern[a]ndez-Cuevas ha[d] failed to prove that
Defendants Taylor and Martz caused a seizure of [Hernandez]
pursuant to a legal process unsupported by probable cause."
Concerning the first element of a malicious prosecution claim,
causation, the magistrate judge found that Hernandez had not
presented any evidence to prove that Taylor and Martz "tainted or
arranged" the photo array presented to the informant or that Taylor
made statements in his affidavit that "amounted to 'deliberate
falsehood or reckless disregard for the truth.'" (quoting Franks,
438 U.S. at 171). The magistrate judge also addressed the civil
conspiracy alleged in Hernandez's complaint and concluded that
"[n]o evidence was presented of an agreement between agents Taylor
and Martz to inflict a wrong against or injury upon [Hernandez]."
Hernandez's timely appeal followed.
II.
We review de novo a district court's grant of a Rule
50(a) motion for judgment as a matter of law, taking the evidence
in the light most favorable to the nonmovant. See Cham v. Station
- 15 -
Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2012). We review
evidentiary rulings for abuse of discretion if the objecting party
has preserved the issue. United States v. Peña-Santo, 809 F.3d
686, 694 (1st Cir. 2015).
A. Fourth Amendment Malicious Prosecution Claim
Hernandez argues that he provided sufficient evidence
for a reasonable jury to conclude that he established malicious
prosecution in violation of the Fourth Amendment. In order to
establish such a violation, Hernandez had to demonstrate that
Taylor and Martz "(1) caused (2) a seizure of [Hernandez] pursuant
to legal process unsupported by probable cause, and (3) criminal
proceedings terminated in [Hernandez's] favor." Hernandez I, 723
F.3d at 101 (quoting Evans v. Chalmers, 703 F.3d 636, 647 (4th
Cir. 2012)).
To satisfy the first element, causation, Hernandez was
required to "demonstrate that law enforcement officers were
responsible for his continued, unreasonable pretrial detention."
Id. at 100. Such responsibility may be established by showing
that the officers "ma[d]e, influence[d], or participate[d] in the
decision to prosecute," Sykes v. Anderson, 625 F.3d 294, 311 (6th
Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.
2007)) (alterations in original), by, for example, "(1) 'l[ying]
to or misle[ading] the prosecutors'; (2) 'fail[ing] to disclose
exculpatory evidence'; or (3) 'unduly pressur[ing] the prosecutor
- 16 -
to seek the indictment,'" Hernandez I, 723 F.3d at 100 (quoting
Evans, 703 F.3d at 647–48). Thus, when establishing causation,
the plaintiff must demonstrate that the actions or statements of
law enforcement officers "amounted to 'deliberate falsehood
or . . . reckless disregard for the truth.'" Hernandez I, 723
F.3d at 102 (quoting Franks, 438 U.S. at 171).
Hernandez argues on appeal that the photo array "created
at the direction of Martz," and "Taylor's fabricated testimony" in
his affidavit, provided "sufficient evidence . . . to indicate
that Defendants made representations that amounted to deliberate
falsehoods or reckless disregard for the truth," and thus caused
his seizure without probable cause. We take these two allegations
of wrongdoing in turn.
1. The Photographic Array
As the parties stipulated before trial, Martz provided
the DMV photo of Hernandez to FBI Newark's photo lab, and,
"[c]onsistent with FBI policy, the FBI lab created a photo array
which contained Hernandez's photograph, along with five other
similar looking individuals." In Hernandez I, we concluded that
[a]lthough the complaint does not specify how
the co-conspirators tainted the photo array,
Hernandez-Cuevas has pled sufficient facts to
support a reasonable inference that something
was amiss. Specifically, Hernandez-Cuevas has
alleged that rather than selecting a
photograph of someone matching the description
of [the courier] -- short, stocky, and nearly
sixty -- [the informant] picked a photograph
- 17 -
of Hernandez-Cuevas, who was tall, thin, and
only forty.
723 F.3d at 104.
At trial, however, Hernandez did not present any
evidence to support the allegation that the array was tainted. To
the contrary, as we now know, SA Chavez's surveillance
report -- which describes the courier as "short, stocky, and nearly
sixty," and does not closely resemble Hernandez, id. -- was not
the only available description of the courier. The record
established that the DMV description of Hernandez as forty years
old, 5'11", of "medio marrón" complexion, and 185 pounds, matched,
at least in part, the informant's description of the courier as
approximately forty years old, 5'10",9 black, and having a big
stomach. As the parties stipulated before trial, "FBI agents
routinely rely on descriptions provided by witnesses, including
[confidential informants], who have face to face interactions with
the subject of investigation, given their opportunity to observe
the physical characteristics of the subjects."
Furthermore, the courier was last seen at 1655 Santa Ana
Street, and SA Albrecht's report identified Hernandez as the only
9We note that the courier's height was included in the August
10 FBI report but not in the informant's description of the courier
on July 20 -- the date of the transaction. However, the absence
of the courier's height from the initial description does not,
without more, support an inference that the height was fabricated
in the August 10 report.
- 18 -
male officially associated with that address. After receiving the
DMV description and the photo of Hernandez from FBI San Juan, Martz
testified that he "believed we had enough evidence, based on the
investigation." Hernandez presented no evidence at trial to rebut
this testimony, to establish that Martz tainted the photo array,
or to establish that Martz and Taylor worked in concert with the
informant to identify Hernandez.
2. Taylor's Affidavit
As for proving that Taylor "either knowingly or with
reckless disregard for the truth made [false] sworn statements in
a warrant affidavit" that Hernandez was the courier, Hernandez's
case again fails. Hernandez I, 723 F.3d at 104. When initially
questioned by Hernandez's counsel at trial, Taylor testified that
he "gave consideration to" SA Chavez's surveillance report
describing the courier as in his late fifties, 5'7", and heavy,
but that he also looked to "the body wire [recording], the
debriefing of the [informant]," as well as "the utilities check,
[and] the other spot surveillance" to corroborate the statement
made in his affidavit identifying Hernandez as the courier.
When cross-examined by his own attorney, Taylor stated
that he believed that the description of the courier provided by
the informant "matched remarkably accurately" the DMV description
of Hernandez. Taylor testified that his statement in his affidavit
as to his knowledge of the facts of the investigation was "[o]ne
- 19 -
hundred percent" truthful. On re-direct, Hernandez's attorney
questioned Taylor about the August 10 transcription date of Martz's
FBI report (detailing the informant's description of the courier)
and whether Taylor was in Puerto Rico on the date of the
transaction.10 Neither line of questioning, however, undermined
his previous testimony or provided a sufficient basis for a jury
to conclude that Taylor deliberately or recklessly included false
statements in his affidavit.
In light of Taylor's unrebutted testimony, Hernandez did
not establish "a legally sufficient evidentiary basis," Fed. R.
Civ. P. 50(a), for a reasonable jury to conclude that Taylor "made
statements in the warrant affidavit which amounted to 'deliberate
falsehood or . . . reckless disregard for the truth.'"
Hernandez I, 723 F.3d at 102 (quoting Franks, 438 U.S. at 171)
(omission in original).
In sum, although we concluded in Hernandez I that
Hernandez's complaint provided sufficiently plausible allegations
to make out a malicious prosecution Bivens claim, 723 F.3d 102–
05, the evidence that Hernandez presented at trial did not bear
out his original allegations with respect to either Martz or
Taylor. To the contrary, the limited evidence presented at trial
revealed that the confluence of matching physical features and
10
The parties stipulated before trial that Taylor was not in
Puerto Rico on the date of the transaction.
- 20 -
residence led the agents to Hernandez. Hence, the record is
insufficient to permit the jury to conclude "that law enforcement
officers were responsible for [Hernandez's] continued,
unreasonable pretrial detention," as required by the causation
element of a Fourth Amendment malicious prosecution claim. Id. at
100. Hence, we need not examine the remaining two elements of
Hernandez's claim.11
B. The Reckless Disregard Standard
Hernandez also argues that the magistrate judge did not
correctly apply the intent standard that we announced in
Hernandez I. The magistrate judge found that "the evidence does
not support the claims that agent Taylor made statements in the
affidavit, in support of the complaint and arrest warrant against
Plaintiff Hern[a]ndez-Cuevas, which amounted to 'deliberate
falsehood or reckless disregard for the truth'" (quoting Franks,
11
Hernandez's civil conspiracy claim also fails. As the
magistrate judge noted in her order, Hernandez alleged a civil
conspiracy "in the complaint but not as a separate cause of
action." We have stated that, "[i]n order to make out an
actionable conspiracy . . . a plaintiff has to prove not only a
conspiratorial agreement but also an actual abridgment of some
federally-secured right." Nieves v. McSweeney, 241 F.3d 46, 53
(1st Cir. 2001) (emphasis added). Hernandez did not present even
circumstantial evidence that Martz and Taylor entered into a
conspiratorial agreement. See Earle v. Benoit, 850 F.2d 836, 845
(1st Cir. 1988) (finding error in the district court's directed
verdict where "there was sufficient circumstantial evidence . . .
for a reasonable jury to have inferred a conspiracy"). Moreover,
as we just concluded, he failed to establish a violation of his
"Fourth Amendment right to be free from malicious prosecution."
Hernandez I, 723 F.3d at 99.
- 21 -
438 U.S. at 171). Hernandez argues that the magistrate judge
"injected into the analysis 'malice' which generally denotes
subjective criteria," and therefore did not follow the law of the
case doctrine, which "posits that when a court decides upon a rule
of law, that decision should continue to govern the same issues in
subsequent stages in the same case." Arizona v. California, 460
U.S. 605, 618 (1983). We disagree. Simply put, the magistrate
judge accurately quoted language from Hernandez I and Franks, and
she properly assessed the requisite mental state.
C. Evidentiary Rulings
Hernandez argues that the magistrate judge erred when
she precluded him from using the defendants' documentary evidence.
The magistrate judge's pretrial procedure order required that
"[a]ll exhibits shall be pre-marked and exchanged prior to trial.
It shall be the responsibility of counsel, at least three (3)
working days prior to the trial, to make appropriate arrangements
with the courtroom deputy clerk in this respect." At multiple
points during the trial, the magistrate judge did not allow
documents into evidence that Hernandez did not list as exhibits
for trial, in accordance with the pretrial order. The magistrate
judge emphasized that Hernandez's failure to include the documents
- 22 -
in the list of exhibits to be introduced at trial was "not a
technicality."
"[A] district court has broad discretion to preserve the
integrity of a pretrial order," and "an appellate court generally
should not interfere with a trial court's decision to admit or
exclude evidence based on its interpretation of its own pretrial
order." Alberty-Veléz v. Corporación De Puerto Rico Para La
Difusión Pública, 242 F.3d 418, 423 (1st Cir. 2001). On appeal,
Hernandez does not identify the specific documents that the
magistrate judge excluded or how the magistrate judge's ruling
prejudiced him at trial. He provides only a few scant citations
to the trial transcript, leaving us to discern the documents
excluded and the effect of their exclusion. Without more from
Hernandez, we have no justification to disturb the magistrate
judge's enforcement of her own pretrial order.12 Moreover, even
if the magistrate judge had erred, the one excluded document that
we can discern from Hernandez's trial transcript citations --
Martz's handwritten notes of the informant's debriefing -- only
serves to further undermine Hernandez's case. Hence, even assuming
error on the magistrate judge's part, such error would be harmless.
12 Hernandez asserts that the judge precluded the evidence in
spite of the parties' agreement under the joint proposed pretrial
order to "use evidence announced by the other party upon good cause
shown." Hernandez, however, has not argued that he provided a
showing of good cause to the magistrate judge, nor has he offered
such a showing on appeal.
- 23 -
Affirmed.
- 24 -