Paret-Ruiz v. United States , 827 F.3d 167 ( 2016 )

United States Court of Appeals
For the First Circuit
No. 14-2134
JORGE A. PARET-RUIZ,
Plaintiff, Appellant,
v.
UNITED STATES OF AMERICA,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Gustavo A. Gelpí, U.S. District Judge]
[Hon. Silvia Carreño-Coll, U.S. Magistrate Judge]
Before
Torruella, Lipez, and Thompson,
Circuit Judges.
Edelmiro Salas González for appellant.
Steve Frank, Attorney, Appellate Staff, Civil Division, U.S.
Department of Justice, with whom Benjamin Mizer, Principal Deputy
Assistant Attorney General, Rosa E. Rodríguez-Vélez, United States
Attorney, and Mark B. Stern, Attorney, Appellate Staff, Civil
Division, U.S. Department of Justice, were on brief, for appellee.
June 28, 2016
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 carefully
reviewed the record and law, we agree that Paret has no available
remedy. Hence, we affirm.
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.
1 The district court issued two opinions disposing of Paret's
claims, the latter of which was written by the magistrate judge
after a bench trial. See Paret-Ruiz v. United States, No. 11-1404
(SCC), 2014 WL 4729122 (D.P.R. Sept. 23, 2014); Paret-Ruiz v.
United States, 847 F. Supp. 2d 289 (D.P.R. Mar. 6, 2012). For
simplicity, we refer to "the district court" in describing the
proceedings and both dispositions.
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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 González, supported by audio recordings and
transcripts of conversations between Paret and González. See id.
at 2-5. According to González, 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 González of his
discussions with unidentified individuals who were to secure the
drugs that González would be hired to transport. Id. at 3-4. At
one point, González gave Paret $2000 that González 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.
González'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
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other individuals with whom he had been in contact had been
arrested. Id. Paret and González had no further conversation.
Id. at 6-7. However, González testified that he was able to
identify two men whom he believed were Paret's contacts -- Efraín
Santana-Ortiz ("Santana") and Adalberto Coriano-Aponte ("Coriano")
-- and he subsequently met with Coriano to discuss transporting
cocaine. See id. at 4. In addition, González 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
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González to transport to Puerto Rico,2 but then said that he had
actually fabricated the negotiations he reported to González and
the informant "because I knew they were police" and "[t]hey had
been after me for a long time, and I knew that and I made it up.
It wasn't real." When asked on cross-examination why, given his
awareness of their identity, he did not simply reject the drug-
dealing proposition, Paret said he had been persecuted and abused
by the police for more than thirty years because he had angered
"powerful figures" in the community who "swore to take vengeance"
on him. He asserted that, "for this reason, and many others which
I can explain, . . . was the reason why I decided to take up this
situation, to see if I could somehow put the brakes on this abuse
that had been going on on my person." Paret acknowledged talking
on the phone to Santana, but he said the call was about the purchase
of a horse. He said he had never spoken with Coriano.
2
Paret testified that, at a meeting on a boat, he spoke with
González and the FBI informant "about bringing over some controlled
substances to Puerto Rico by boat." The exchange continued as
follows:
Q. After that meeting, did you try to secure
a load of drugs for [González] 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.
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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," González's testimony
"establish[ed] that an agreement existed only between Paret-Ruiz
and Agent González." 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 21 U.S.C. § 881(a) (describing
types of property subject to administrative forfeiture, including
"vehicles, or vessels, which are used, or are intended for use, to
transport" controlled substances (quoting § 881(a)(4)));3 18 U.S.C.
3 Seizures made under § 881 require a warrant unless, inter
alia, "there is probable cause to believe that the property is
subject to forfeiture and . . . the seizure is made pursuant to a
lawful arrest or search." 18 U.S.C. § 981(b)(2)(B), (b)(2)(B)(i);
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§ 983 (specifying procedures for civil forfeiture proceedings).
To provide context, we describe the legal framework governing civil
forfeiture before recounting what occurred in this case.
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 -- depending on whether,
and how, the owner responds to the government's confiscation of
his property.4 After seizing property, the government must notify
"interested parties" that they may file a claim to contest the
seizure by a deadline specified in the notice letter. See 18
U.S.C. § 983(a)(1)(A)(i), (a)(2)(A), (a)(2)(B). If a claim is
filed, see id. § 983(a)(2)(A), the government must initiate a
judicial proceeding in which it will bear the burden of
demonstrating, "by a preponderance of the evidence, that the
see also 21 U.S.C. § 881(b) (stating that "[a]ny property subject
to forfeiture to the United States under this section may be seized
by the Attorney General in the manner set forth in section 981(b)
of Title 18"). The particulars of the seizure are not at issue in
this case.
4
The Civil Asset Forfeiture Reform Act of 2000 ("CAFRA"),
Pub. L. No. 106-185, 114 Stat. 202 (codified in part at 18 U.S.C.
§ 983), "significantly modified the rules governing both judicial
and nonjudicial forfeitures to ensure that property owners benefit
from the guarantees of due process of law." Rebecca Hausner, Note,
Adequacy of Notice Under CAFRA: Resolving Constitutional Due
Process Challenges to Administrative Forfeitures, 36 Cardozo L.
Rev. 1917, 1918 (2015); see also, e.g., United States v. Sum of
$185,336.07 U.S. Currency Seized from Citizen's Bank Account
L7N01967, 731 F.3d 189, 195-96 (2d Cir. 2013).
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property is subject to forfeiture," id. § 983(c)(1). If no claim
is filed, the property is forfeited administratively. See 19
U.S.C. § 1609.
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 F. App'x 362, 363 (1st Cir.
2003) (per curiam); 18 U.S.C. § 983(e) (providing for a motion to
set aside forfeiture based on lack of notice); id. § 983(e)(5)
(stating that "[a] motion filed under this subsection shall be the
exclusive remedy for seeking to set aside a declaration of
forfeiture under a civil forfeiture statute"). Although a claimant
may file a petition for remission or mitigation, see 19 U.S.C.
§ 1618 (providing for "Remission or mitigation of penalties"),5
the decision whether to grant such relief is solely within the
agency's discretion. See Malladi Drugs & Pharms., Ltd. v. Tandy,
552 F.3d 885, 887-88 (D.C. Cir. 2009) (citing 28 C.F.R. §§ 9.3,
9.7).
5
The civil forfeiture regime as applied to drug-related
seizures of property incorporates many of the procedures governing
forfeiture under customs law, codified in Title 19, including the
availability of remission or mitigation. See 21 U.S.C. § 881(d).
Pursuant to 19 U.S.C. § 1618, property subject to forfeiture may
be returned to its owner based on a finding, inter alia, that "such
. . . forfeiture was incurred without . . . any intention on the
part of the petitioner to . . . violate the law," or that mitigating
circumstances exist to justify relief.
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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
18 U.S.C. § 983(a)(3)(C); see also United States v. Ursery, 518
U.S. 267, 274 (1996) ("Since the earliest years of this Nation,
Congress has authorized the Government to seek parallel in rem
civil forfeiture actions and criminal prosecutions based upon the
same underlying events."). Second, notwithstanding the alleged
link to criminal activity that justified the property's seizure,
civil forfeiture may occur without a finding of criminal liability.
See Caraballo, 62 F. App'x at 363-64 ("To prosecute a civil
forfeiture action, . . . the government need not prove that the
owner committed a crime." (citing United States v. One Assortment
of 89 Firearms, 465 U.S. 354, 361 (1984))); see also United States
v. Bonventre, 720 F.3d 126, 132 (2d Cir. 2013) ("A civil forfeiture
action is an action in rem, and therefore is based solely on the
origin of the property, not . . . upon the culpability of the
owner. In contrast, criminal forfeiture actions are in personam
sanctions and thus depend on the defendant's guilt." (omission in
original) (internal quotation marks omitted) (citation omitted)).6
6 In an article on CAFRA, the then-Assistant Chief of the
Asset Forfeiture and Money Laundering Section of the Department of
Justice observed that "[p]arallel civil and criminal forfeiture
actions are routine." Stefan D. Cassella, The Civil Asset
Forfeiture Reform Act of 2000: Expanded Government Forfeiture
Authority and Strict Deadlines Imposed on All Parties, 27 J. Legis.
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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 18
U.S.C. § 983(a)(2)(C)(iii), and then because it was resubmitted
late, see id. § 983(a)(2)(B). In denying the claim the second
time, the DEA noted that Paret had not filed a petition for
remission or mitigation, but it allowed him twenty days from
"receipt of this letter to file a petition for an administrative
ruling by this office before the property is disposed of according
to law." It does not appear that such a petition was filed, and
the vehicles were administratively forfeited in March 2006 --
several months before the drug conspiracy trial.
97, 147 (2001). He elaborated as follows: "Indeed, maintaining a
parallel civil forfeiture case, or preserving the option of filing
such a case in the future, is absolutely necessary in light of the
limited nature of criminal forfeiture," which is "available only
if the defendant is convicted of the crime giving rise to the
forfeiture." Id. The civil asset forfeiture scheme remains
controversial, however, even after the reforms implemented by
CAFRA. See infra note 18.
7 The notice sent to Paret stated that he could "petition the
DEA for return of the property or your interest in the property
(remission or mitigation), and/or you may contest the seizure and
forfeiture of the property in Federal court."
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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
8
The constitutional claim was dismissed as time-barred based
on the court's conclusion that a one-year statute of limitations
applied. The court also dismissed Paret's claims against the DEA
on the ground that the United States is the only proper defendant
in an FTCA action.
9
The Supreme Court has noted that the torts of "[f]alse
arrest and false imprisonment overlap; the former is a species of
the latter." Wallace v. Kato, 549 U.S. 384, 388 (2007). Like the
Supreme Court, "[w]e shall thus refer to the two torts together as
false imprisonment." Id. at 389; see also Abreu-Guzmán v. Ford,
241 F.3d 69, 75 (1st Cir. 2001) (noting that, "[u]nder Puerto Rico
law, false arrest and false imprisonment claims share identical
elements").
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submission had been untimely and the latter because Paret was
arrested and held pursuant to legal process. See Wallace v. Kato,
549 U.S. 384, 389 (2007) (stating that the tort of false
imprisonment, which embraces false arrest, involves "detention
without legal process").
The court also rejected the malicious prosecution claim.
Again at the civil trial, Paret admitted telling González 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, Lázaro 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."
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González, 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 "discredit[ed] much of Paret's
self[-]serving testimony." Id. In addition, although doubting
that Paret intended to import drugs with González, the court found
it "easy to understand why Agent González believed in Paret's
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seriousness." Id. The court concluded its findings of fact as
follows: "Put bluntly, there was no reason to think that Agent
González 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 González
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, González "might
have misinterpreted some of his conversations with Paret -- or
been misled by Herrera -- but neither of those occurrences, even
if true, would support a finding of bad faith." Id. at *4.
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
10In his brief, Paret refers to the false imprisonment claim
when describing the issues presented for review, but he offers no
argument directed to that claim. That issue is therefore waived.
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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,
11
Although Paret's complaint invokes jurisdiction only under
the FTCA, he links his takings claim to the Fifth Amendment. See
Compl. ¶ 49 ("Plaintiff seeks compensation in respect of the
government's taking of his property, and tortious actions that are
tied to the purpose and self-executing aspects of the Just
Compensation Clause of the Fifth Amendment.").
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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
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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 civil forfeiture is
necessarily the only one at issue in this appeal.
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, § 983 specifies a procedure for objecting to the
seizure of property for the purpose of civil forfeiture, but Paret
did not complete that process. The statute also provides a post-
forfeiture remedy for a property owner who did not receive notice,12
12 Section 983(e) states, in relevant part:
(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
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but Paret cannot claim lack of notice because he responded --
albeit imperfectly -- to the notice he received.13 Moreover, as
the district court noted, Congress has expressly precluded other
rationales for relief from forfeiture: "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 § 983 when Congress has expressly conditioned relief from
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.
18 U.S.C. § 983(e). A motion under this section "may be filed
not later than 5 years after the date of final publication of
notice of seizure of the property." Id. § 983(e)(3).
13 As detailed above, Paret's second attempt to file a proper
claim was untimely. The magistrate judge observed that some courts
have recognized the possibility of equitable tolling in the context
of § 983, but Paret has not argued such a theory.
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civil forfeiture on circumstances that do not apply to him. Paret
does not claim that the forfeiture of his vehicles violated § 983,
and he does not challenge the constitutionality of the civil
forfeiture scheme itself. Hence, § 983 bars his claim to
compensation.14
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 purpose of
forfeiture only if "the interest of the claimant was not
forfeited." 28 U.S.C. § 2680(c) (listing four prerequisites for
such a claim). Because Paret did not submit a timely claim under
§ 983(a)(2) or obtain relief from forfeiture under § 983(e), his
interest in the vehicles was forfeited, and his FTCA claim
therefore fails.15
14 Paret's complaint contains an unelaborated allegation that
his "interest in the forfeited property . . . was sufficiently
significant and the circumstances were such that the notice given
by the Government did not comport with the requirements of due
process." See Compl. at ¶ 54. Although this allegation could
suggest a Fifth Amendment procedural due process claim contesting
the adequacy of the forfeiture scheme as applied to him, Paret did
not develop such a claim. His constitutional argument on appeal
is based solely on a takings theory.
15 Moreover, Paret's claim appears to be beyond the scope of
the FTCA. The statute waives sovereign immunity for damages claims
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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 28 U.S.C. §§ 1491(a)(1), 2501. Although Paret
correctly notes the relevance of the Tucker Act, he is mistaken
about its application here.
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 28 U.S.C. § 1491(a)(1). Indeed, we have noted that
a claim under the Tucker Act is the "applicable procedure" for
asserting a takings claim against the federal government.
Asociación de Subscripción del Seguro de Responsabilidad
based on conduct (or inaction) of government employees acting
within the scope of their employment "under circumstances where
the United States, if a private person, would be liable to the
claimant in accordance with the law of the place where the act or
omission occurred." 28 U.S.C. § 1346(b)(1) (emphasis added).
Because forfeiture is a uniquely governmental procedure, the
resulting loss of property does not arise from circumstances in
which a private person could be liable. Cf., e.g., Ali v. Fed.
Bureau of Prisons, 552 U.S. 214 (2008) (addressing prisoner's FTCA
claim concerning personal items that went missing after he and his
property were transferred from one federal prison to another).
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Obligatorio v. Flores Galarza, 484 F.3d 1, 16 (1st Cir. 2007).
Paret's particular claim, however, appears to fall outside the
Tucker Act waiver.
Sovereign immunity protects the United States from suit
absent consent that is "unequivocally expressed." United States
v. Bormes, 133 S. Ct. 12, 16 (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." 28 U.S.C.
§ 1491(a)(1).16 Notwithstanding that broad language, "[t]he Tucker
Act has been held inapplicable where Congress has provided
alternative remedies under other statutes." Abreu v. United
States, 468 F.3d 20, 30 (1st Cir. 2006). This is so because the
Tucker Act is "simply [a] jurisdictional provision[] that
operate[s] to waive sovereign immunity for claims premised on other
sources of law." Bormes, 133 S. Ct. at 17 (quoting United States
16The Tucker Act and its "companion statute," the Little
Tucker Act, 28 U.S.C. § 1346(a)(2), both "provide[] the Federal
Government's consent to suit for certain money-damages claims."
Bormes, 133 S. Ct. at 16. The Little Tucker Act gives district
courts "original jurisdiction, concurrent with the United States
Court of Federal Claims," for, inter alia, constitutional claims
"not exceeding $10,000 in amount," 28 U.S.C. § 1346(a)(2), while
the Tucker Act gives jurisdiction to the Court of Federal Claims
"regardless of monetary amount," Bormes, 133 S. Ct. at 16 n.2.
The Court of Federal Claims thus has exclusive jurisdiction over
Tucker Act claims exceeding $10,000. See United States v. Hohri,
482 U.S. 64, 72 (1987) ("Tucker Act claims for more than $10,000
may be brought only in the United States Claims Court.").
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v. Navajo Nation, 556 U.S. 287, 290 (2009)). Hence, if the law on
which a claim is premised contains its own, more limited, judicial
remedies, "[t]he Tucker Act is displaced." Id. at 18.
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 (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 21 U.S.C. § 881(a); 18 U.S.C.
§ 983, provided property owners a means to obtain review of a
challenged seizure in district courts, see 18 U.S.C. § 983(a)(2)-
(4), and specified that relief from forfeiture is available only
based on absence of notice, see id. at § 983(e)(5). Arguably,
then, as in Bormes, the Tucker Act is displaced by a "self-
executing remedial scheme." Bormes, 133 S. Ct. at 18.
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
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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 18 U.S.C. § 983(e)"); Vereda,
Ltda. v. United States, 271 F.3d 1367, 1375 (Fed. Cir. 2001)
(stating that the "statutory scheme evinces Congress' intent to
preempt any Tucker Act jurisdiction over a money claim that
challenges the propriety of an in rem administrative forfeiture of
property seized under 21 U.S.C. § 881"). Hence, the fact that
Paret premised his claim on the Constitution, rather than § 983
itself, makes no difference to the Tucker Act analysis.
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
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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 § 983. His failure to comply
with that statute's requirements precludes the challenge he brings
here to the forfeiture of his trucks and boat.18
17In addition to the constitutional claims allowed pursuant
to the Tucker Acts, federal courts may address claims asserting
violations of the United States Constitution by federal actors
when they are brought against individual officers. See Bivens v.
Six Unknown Named Agents of Fed. Bureau of Narcotics, 403 U.S. 388
(1971). Paret, however, has expressly waived any claim under
Bivens. See Appellant's Br. at 23.
18In finding no basis for relief on the property claims, the
district court expressed its view that "the result is unjust."
2014 WL 4729122, at *5. The court stated that Paret's inability
to seek the return of a substantial amount of property despite
"the fact of his acquittal and the lack of nexus between the
property and the 'crime' of which Paret was acquitted," "suggests
that the civil asset forfeiture system may be broken." Id. at
*5 n.10. The court's comments reflect an ongoing controversy,
with opponents assailing "[t]he widespread failure of civil
forfeiture laws to protect property owners from unjust
forfeitures." Dick M. Carpenter II et al., Policing for Profit:
The Abuse of Civil Asset Forfeiture 43 (Institute for Justice 2d
ed. 2015); see also id. at 24 & nn. 77, 78 (noting 2015 introduction
in the House and Senate of the Fifth Amendment Integrity
Restoration (FAIR) Act, which, among other provisions, would
increase the government's burden of proof in § 983 forfeiture
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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
González manifested bad faith by falsely telling the grand jury he
had evidence of Paret's participation in a drug trafficking
conspiracy. Paret asserts that González could prove only that
Paret interacted with government agents (i.e., González and the
FBI informant, Herrera) about importing drugs, not with other
culpable actors, and González 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").
proceedings from a preponderance of the evidence to clear and
convincing evidence).
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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.'" González-Rucci v. INS, 539
F.3d 66, 69 (1st Cir. 2008) (quoting Fed R. Civ. P. 52(a)(6)).
That deference proves fatal to Paret's claim. The district court
rejected much of Paret's "self[-]serving testimony," but found
González credible. 2014 WL 4729122, at *2; see also id. at *4
("[T]he evidence at trial suggested that Agent González honestly
believed -- and believes -- that Paret is a drug trafficker.").
Although the court noted the lack of evidence -- beyond Paret's
own boasting -- that he was "'the real deal,'" it found no
indication that González disbelieved Paret's accounts of potential
drug smuggling ventures. Id. at *2.
This is a permissible view of the evidence. Regardless
whether Paret was merely "playing the undercover agents for their
money," as he claims, he nonetheless offered facially plausible
details about imminent drug smuggling ventures in an effort to
persuade González and Herrera that he was a legitimate drug
trafficker looking for a boat to pick up loads of cocaine for
transport to Puerto Rico. During one of their meetings, González
heard Paret's end of a phone call with Santana about the
acquisition of a boat, which was consistent with Paret's focus on
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procuring a vessel for drug shipments.19 On this record, the
district court certainly cannot be faulted for crediting
González's testimony that Paret's deception -- if that is what it
was -- succeeded.
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
19Repeating the assertion he made in the criminal trial that
he had only spoken by phone with Santana about a horse, Paret
testified in the civil case that the call he made to Santana in
González's presence was about "the horse that [Santana] had shown
me." Given the surrounding circumstances, the district court could
reasonably find otherwise. Indeed, in questioning González about
that call in the civil case, Paret's attorney accepted that the
overheard conversation was about a boat and focused on whether the
pertinent coded language referred to a vessel owned by Paret or to
a DEA undercover vessel.
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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 González 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 González did not act maliciously in
pursuing the drug conspiracy indictment. Judgment for the
government on each of these claims is therefore affirmed.
So ordered.
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