Paret-Ruiz v. United States of America
Filing
103
OPINION AND ORDER re: Bench Trial. Signed by US Magistrate Judge Silvia Carreno-Coll on 9/23/2014.(NBB)
IN THE UNITED STATES COURT
FOR THE DISTRICT OF PUERTO RICO
JORGE PARET-RUIZ,
Plaintiff,
v.
CIV. NO.: 11-1404(SCC)
UNITED STATES OF AMERICA,
Defendant.
OPINION AND ORDER
Plaintiff Jorge Paret-Ruiz sued the Government under the
Federal Tort Claims Act (“FTCA”) alleging illegal arrest and
related claims. Several claims were dismissed,1 and a bench
trial was held on the remaining claims on September 5, 2014.
1.
The Court previously entered an Order dismissing Paret’s claims
against the Drug Enforcement Authority, finding that the United States
was the only proper party; his claim for assault during his arrest; his
constitutional takings claim; and his claims regarding injuries while
imprisoned. See Docket No. 19.
PARET-RUIZ v. UNITED STATES
Page 2
The parties filed post-trial briefs. See Docket Nos. 94, 98.
I. Background
The following facts are taken from the First Circuit’s
opinion in Paret’s criminal trial. See United States v. Paret-Ruiz,
567 F.3d 1 (1st Cir. 2009). Apart from the procedural history,
however, these facts are not established for the purposes of the
present action;2 instead, they are recited because they provide
necessary context for Paret’s FTCA claim.
According to the Government’s case in the criminal trial,
the DEA’s involvement with Paret began in January 2004 when
it was told by the FBI that one of its confidential informants
(“CIs”) had been approached by Paret in order to acquire a
boat with which to import narcotics into Puerto Rico. See id. at
2.
In its post-trial brief, the Government, rather than summarize the facts
adduced at the bench trial, chose to summarize the facts discussed in
the First Circuit’s criminal opinion, which, according to the
Government, were “already established before trial.” Docket No. 94, at
2 (emphasis omitted). But the First Circuit made no findings of fact.
Instead, in ruling on Paret’s sufficiency-of-the-evidence claim, it
construed the trial evidence “in the light most favorable to the verdict.”
United States v. Paret-Ruiz, 567 F.3d 1, 3 (1st Cir. 2009) (citing United
States v. DeCologero, 530 F.3d 36, 47 (1st Cir. 2008)). Given that the
conviction entered in the trial court has been vacated, and given that I
have had the opportunity to hear the relevant testimony, I have no
obligation to construe the evidence in the way that the First Circuit says
the jury could have construed it. I make my own factual findings below.
PARET-RUIZ v. UNITED STATES
Page 3
3. On February 3, 2014, Paret met with DEA undercover Agent
González and was shown a boat. See id. Paret claimed to have
drug connections in Antigua and St. Maarten and indicated
that he wanted to use the boat to import drugs to Puerto Rico.
See id. Over the next couple months, Paret met and spoke
repeatedly with Agent González and the CI. In these meetings,
Paret would talk about his drug connections and his plans to
bring drugs into Puerto Rico using Agent González’s boat.
Each time one of these plans came to fruition, though, some
obstacle would appear and the delivery would fall through. At
one point Paret was even given $2,000 by Agent González to
take a trip to Antigua to confirm that there was cocaine there
to bring back to Puerto Rico. Paret took the money, but he
never took the trip.
Though the Government never found evidence of more
than talking, it secured an indictment against Paret, along with
two other individuals, on August 9, 2005. At trial, he was
convicted of conspiring to possess with intent to distribute
cocaine. On appeal, the First Circuit reversed the conviction
and ordered the trial court to enter a verdict of not guilty. Id.
at 8. It held that while there was sufficient evidence “for a
reasonable jury to find that Paret-Ruiz wanted to make a deal
PARET-RUIZ v. UNITED STATES
Page 4
to transport drugs into Puerto Rico,” there was insufficient
evidence “for a reasonable jury to conclude that Paret-Ruiz had
an agreement with anyone other than Agent González to work
together to import and possess illegal drugs.” Id. at 7–8.
II. Findings of Fact
Two witnesses testified at the bench trial: Paret and Agent
González. Paret’s testimony focused principally on adding
context to the criminal trial’s facts that he thought portrayed
him in a more innocent light. Agent González’s testimony, by
contrast, mostly repeated his testimony from the criminal trial,
but it added details about why he remains convinced that the
investigation into Paret was a valid one.
Paret disputed that he had approached the CI, a man
named Lázaro Herrera. Instead, Paret said that Herrera
initially approached him, asking to purchase a boat that Paret
had for sale. As Paret tells it, from that point forward it was
Lazaro, and later Herrera and Agent González, working
undercover, who broached the subject of important narcotics.
In Paret’s version, Herrera regularly visited Paret and offered
him money to accompany him on various minor and not
obviously illegal errands. Paret seems to have been happy to
take Herrera’s money, and he engaged with Herrera in
PARET-RUIZ v. UNITED STATES
Page 5
speculative talk about importing drugs.
Under false pretenses, says Paret, Herrera eventually
brought him to Fajardo, where they met Agent González at a
marina. Agent González had a vessel there, and he and
Herrera insisted that Paret go aboard and test drive it. Agent
González asked him to take the boat to St. Thomas to pick up
drugs, and Paret said he told Agent González no.
Paret testified that he never had any intention of importing
drugs, but his motives for telling Agent González about his
supposed history of drug importation and drug connections is
not entirely clear. Paret does claim to have suspected that
Agent González and Lazaro were cops, and yet, in his own
version, he played along. He admits, too, to taking the $2,000
Agent González offered him for a scouting mission, but he says
he only asked for a loan and never intended to do anything
that Agent González asked. Most of the rest of Paret’s testimony was devoted to offering innocent explanations for
incriminating recordings and to denying that he had any
relationship with his co-defendants.
Agent González’s testimony took the position that the
investigation and arrest of Paret were valid. Agent González
testified that they had identified Paret’s associates—who Paret
PARET-RUIZ v. UNITED STATES
Page 6
testified never existed—as his co-defendants, but he did not
entirely explain how the Government had come to that
conclusion. Agent González also testified that he had no
knowledge of cash payments to Paret beyond the $2,000, but
he could not say whether or not the FBI or Herrera personally
had paid Paret more. Agent González admitted that he had
never seen any drugs and that none of the talked-about
transactions ever came to fruition. Still, he seemed convinced
that Paret was “the real deal,” a serious drug trafficker.
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.” Frankly, I discredit much of Paret’s selfserving testimony, but at the end of the day I think that
regardless of whether or not he suspected Herrera and Agent
González were cops, he was playing them. I have doubts about
whether Paret had any actual intent of importing narcotics
with Agent González, but he was at least willing to pretend in
the hopes of getting money without working. And whatever
his motivation, Paret was happy to talk about his supposed
exploits. Whether or not the intent existed in Paret’s mind, it is
easy to understand why Agent González believed in Paret’s
seriousness. Put bluntly, there was no reason to think that
PARET-RUIZ v. UNITED STATES
Page 7
Agent González knew Paret was lying, much less that he was
investigating Paret for any impermissible purpose.
II. Analysis
This case went to trial on three claims: false arrest and
imprisonment, malicious prosecution, and a non-constitutional
claim for deprivation of property. Below, I take up each of
these claims in turn.
A. False Arrest and Imprisonment
As an initial matter, the Government argues that these
claims are time-barred. In fact, it originally made this argument
in a motion to dismiss filed in August 2011. See Docket No. 10.
Judge Gelpí, then presiding over this case, denied the Government’s motion at the time, relying principally on the Supreme
Court’s decision in Heck v. Humphrey. Docket No. 19, at 7
(citing Heck v. Humphrey, 512 U.S. 477, 486–87 (1994)). Two and
a half years after the Court’s ruling, the Government decided
to seek reconsideration of that Order on the grounds that a
later case, Wallace v. Kato, 549 U.S. 384 (2007), required dismissal. See Docket No. 88. That motion was denied because it
was extremely untimely and, moreover, because its consideration would have interfered with the trial date. See Docket Nos.
90, 92.
PARET-RUIZ v. UNITED STATES
Page 8
At trial, however, the Government continued to press its
Wallace v. Kato argument, making the claim that Judge Gelpí
had “overlooked or ignored” Wallace. I have gone back and
looked at the Government’s original motion to dismiss, and it
seems that while the Government has chosen to frame its
motions to reconsider Judge Gelpí’s ruling in a rather accusatory way, the Government itself “overlooked or ignored”
Wallace too. Certainly, that case is not cited in the Government’s frankly cursory discussion of the statute of limitations
issue.3 See Docket No. 10, at 9–10. It was never Judge Gelpí’s
duty to do the Government’s work for it, finding the opinions
that best made its case; that duty was the Government’s alone.
As it turns out, the Government is correct that Wallace
compels this Court to dismiss Plaintiffs false arrest and
imprisonment claims, but not for the reason that the Government suggests. Wallace holds that false arrest and imprisonment
refer to “detention without legal process.” 549 U.S. at 389. Thus,
no tort for false imprisonment may lie where the plaintiff was
“held pursuant to such process.” Id. This is because once a person
3.
Wallace was decided in February 2007, four and a half years before the
Government filed its initial motion to dismiss. See Docket No. 10 (filed
Aug. 29, 2011).
PARET-RUIZ v. UNITED STATES
Page 9
is held pursuant to legal process, the proper claim is one for
malicious prosecution, “which remedies detention accompanied, not by absence of legal process, but by wrongful institution
of legal process.” Id. at 390. Here, Paret was arrested pursuant
to an arrest warrant and indictment, “a classic example of the
institution of legal process.” Wilkins v. DeReyes, 528 F.3d 790,
799 (10th Cir. 2008). He was thus never held without legal
process, and so, under Wallace, he cannot make a claim of false
arrest or imprisonment. Of course, Wallace was decided as a
matter of federal common law, not Puerto Rico law. But Puerto
Rico cases on false arrest and imprisonment state explicitly that
these torts have a common-law origin, and in formulating their
elements the Supreme Court of Puerto Rico has relied on
United States Supreme Court precedent. See Ayala v. San Juan
Racing Co., 12 P.R. Offic. Trans. 1012, 1021–22 (1982) (discussing
the common law origins of false arrest and imprisonment
actions).4 As such, I am sure that if faced with this precise issue,
4.
Notably, Ayala also relied on Prosser’s Law of Torts, see Ayala v. San Juan
Racing Co., 12 P.R. Offic. Trans. 1012, 1021 (1982), a treatise on which
Wallace also relied in defining the distinction between false
imprisonment and malicious prosecution, see Wallace v. Kato, 549 U.S.
384, 389–90 (2007) (citing Prosser).
PARET-RUIZ v. UNITED STATES
Page 10
the Supreme Court of Puerto Rico would follow Wallace.5
Accordingly, I must dismiss Paret’s false arrest and imprisonment claims with prejudice.6
5.
Prior to Wallace, cases from this district and the First Circuit assumed
that claims for false arrest pursuant to legal process were valid. See, e.g.,
Abreu-Guzman v. Ford, 241 F.3d 69, 75–76 (1st Cir. 2001); Santana v.
United States, 919 F. Supp. 2d 558, 563 (D.P.R. 1996). But see, e.g., CaleroColon v. Betancourt-Lebron, 68 F.3d 1, 4 (1st Cir. 1995) (“The critical
inquiry that distinguishes malicious prosecution from false arrest in the
present context is whether the arrests were made pursuant to a
warrant.”). However, after Wallace, the First Circuit and many other
Courts of Appeals have recognized that such claims are illusory. See
Harrington v. City of Nashua, 610 F.3d 24, 29 (1st Cir. 2010) (“[T]he
commencement of a criminal case by the institution of legal process
marks the dividing line between claims of false imprisonment and
claims of malicious prosecution . . . .”); see also Myers v. Koopman, 738
F.3d 1190, 1192 (10th Cir. 2013) (“Myers correctly styled his Fourth
Amendment claim as one for malicious prosecution because he was
seized after the institution of legal process.”); Harrington v. City of
Council Bluffs, Iowa, 678 F.3d 676, 682 (8th Cir. 2012) (similar); Nat’l Cas.
Co. v. McFatridge, 604 F.3d 335, 344 (7th Cir. 2010) (“The false
imprisonment ends, and the claim accrues when he is held pursuant to
a warrant or other judicially issued process.”); Hudson v. Hubbard, 358
F. App’x 116, 119 (11th Cir. 2009) (unpublished) (“Here, the named
defendants caused or allowed Hudson to remain in prison pursuant to
legal process, for which a false arrest or imprisonment claim does not
lie.” (internal quotations and brackets omitted)).
6.
I note that the Government advocated this position in its motion for
summary judgment, but it did so without citing Wallace. See Docket No.
40, at 3–4 (citing, e.g., Calero-Colon, 68 F.3d at 4). Because I find that
PARET-RUIZ v. UNITED STATES
Page 11
B. Malicious Prosecution
Under Puerto Rico law, a malicious prosecution claim has
four elements: (1) the defendants must have initiated a criminal
action against the plaintiff; (2) the criminal action must have
terminated in the plaintiff’s favor; (3) the defendant must have
acted without probable cause and with malice; and (4) the
plaintiff must have suffered damages. Barros-Villahermosa v.
United States, 642 F.3d 56, 58 (1st Cir. 2011). The Government
disputes the third element, arguing that Paret failed to prove
malice.
Here, I agree with the Government. As the First Circuit has
noted, “Puerto Rico courts equate malice with bad faith.” Id. at
59 (citing Raldiris v. Levitt & Sons of P.R., Inc., 3 P.R. Offic.
Trans. 1087 (1975)). But nothing in the record suggests bad
faith on Agent González’s part. To the contrary, the evidence
at trial suggested that Agent González honestly believed—and
believes—that Paret is a drug trafficker. I find that Agent
González did not lie to the grand jury. At most, he might have
misinterpreted some of his conversations with Paret—or been
misled by Herrera—but neither of those occurrences, even if
Wallace requires dismissal, I reconsider the Court’s previous ruling on
this question on my own motion.
PARET-RUIZ v. UNITED STATES
Page 12
true, would support a finding of bad faith. Furthermore, the
fact that the First Circuit found the evidence insufficient for
conviction does not mean that Agent González acted in bad
faith in testifying to the grand jury about what he understood
to be Paret’s conspiratorial actions. An indictment is issued on
a finding of probable cause, and so may be properly issued
even where the grand jury was not presented with evidence
sufficient for conviction. Because Paret has not proved malice,
his malicious prosecution claim fails.
C. Deprivation of Property
Finally, Paret challenges the forfeiture of certain property—two trucks and a boat—by the Government. Paret’s
claim is somewhat confusing, and it is not helped by his failure
to offer into evidence a number of crucial documents that
might have strengthened his case.
Paret’s indictment included a criminal forfeiture count
under 21 U.S.C. § 853. After Paret’s conviction, the presiding
judge entered an order of forfeiture against Paret in the
amount of $20,000. It is unclear whether this amount was ever
satisfied, but it is apparent that the criminal forfeiture order
did not encompass the vehicles referred to above. Those
vehicles, it seems, were instead the subject of a civil administra-
PARET-RUIZ v. UNITED STATES
Page 13
tive forfeiture proceeding before the DEA. When the First
Circuit vacated Paret’s conviction, the criminal forfeiture order
was also vacated; the administrative forfeiture, however, had
already become final and was not covered by the First Circuit’s
mandate. Though his post-trial brief conflates the two proceedings, it is only this administrative forfeiture proceeding that
Paret is challenging.
The administrative forfeiture proceeding was carried out
pursuant to 18 U.S.C. § 983. That statute provides that a person
claiming an interest in property to be forfeited must file their
claim by “the deadline set forth” in the letter putting the
person on notice of the Government’s intent to forfeit the
property. 18 U.S.C. § 983(a)(2)(B). Here, it appears that Paret
did file a claim within that period, but it was rejected by the
DEA because it was not made “under oath, subject to penalty
of perjury,” as required by statute. JOINT EXH. XXIII (emphasis
omitted); see also 18 U.S.C. § 983(a)(2)(C)(iii).7 Whether the
7.
The DEA also purported to reject the claim because it was signed by
Paret’s attorney, not Paret personally. The DEA generally cites 18
U.S.C. § 983(a)(2)(C) for the proposition that only the claimant can sign
the claim, but that section contains no such requirement apart from the
more specific provision that the claim be made under oath. The DEA’s
two reasons for rejecting the claim thus seem duplicative. An attorney
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Government’s characterization is accurate I do not know,
because Paret failed to introduce the actual claim. However, it
also appears that Paret re-filed his claim, but this time it was
returned for being outside of the deadline. See JOINT EXH.
XXIV. Again, I know nothing of the second application’s
content because of Paret’s failure to introduce it.
Filing a claim under § 983 is the exclusive avenue for seeking
a judicial determination in an administrative forfeiture case.
Can v. U.S. Drug Enforcement Agency, 764 F. Supp. 2d 519, 520
(W.D.N.Y. 2011) (citing Valderrama v. United States, 417 F.3d
1189 (11th Cir. 2005)); Martin v. Leonhart, 717 F. Supp. 2d 92,
99–100 (D.D.C. 2010) (“[T]he filing of a claim by an aggrieved
party is the exclusive means by which a claimant can have a
judicial determination as to the forfeiture’s validity.”); see also
18 U.S.C. § 983(e)(5) (“A motion filed under this subsection
shall be the exclusive remedy for seeking to set aside a declara-
should be permitted to file a claim on his client’s behalf, so long as the
facts giving rise to the claim are verified personally and under oath by
the claimant. See, e.g., Martin v. Leonhart, 717 F. Supp. 2d 92, 95 (D.D.C.
2010) (administrative claim filed by attorney on claimant’s behalf); cf.
18 U.S.C. § 983(b)(2)(A) (providing for attorneys in judicial civil
forfeiture proceedings). This point is moot, however, because Paret
appears to have failed to satisfy an express statutory requirement.
PARET-RUIZ v. UNITED STATES
Page 15
tion of forfeiture under a civil forfeiture statute.” (emphasis
added)). Here, Paret failed to file a timely claim, and so he lost
his chance to have the issue of forfeiture decided by a court.
There are cases suggesting that equitable tolling principles may
be applied to the claim-filing deadline under § 983,8 but Paret’s
failure to actually submit his filings has made me unable to
determine whether applying such principles would be warranted.9 Thus, while I think the result is unjust,10 I find myself
8.
See, e.g., In re Return of Seized $11,915 in U.S. Currency, Civ. No. 12-398,
2012 WL 2921221, at *3 (S.D. Cal. July 17, 2012) (tolling claim-filing
deadline where claimant had acted diligently); United States v.
$114,143.00 in U.S. Currency Seized from Michael J. Calash’s Vehicle, 609 F.
Supp. 2d 1321, 1322–23 (S.D. Fla. 2009) (applying equitable tolling to a
§ 983 deadline).
9.
Even if equitable tolling applied, and Paret’s claim was deemed timely,
I could not order the property returned to Paret. Instead, I could only
vacate the orders of forfeiture and compel the Government to file a
judicial civil forfeiture action. See In re Return, 2012 WL 2921221, at *3.
10. The Government’s prosecution of Paret was a misstep. Though I find
that it acted without malice, it should have known that its evidence was
insufficient for conviction. But because it pursued a case that it could
not prove, Paret spent several years in prison for which he will not be
compensated. Moreover, he does not even have recourse to seek the
return of a significant amount of property that the Government seized
from him, despite the fact of his acquittal and the lack of nexus between
the property and the “crime” of which Paret was acquitted. I have no
jurisdiction to order the property’s return, but the position that Paret
PARET-RUIZ v. UNITED STATES
Page 16
unable to do anything but dismiss Paret’s property claims, as
I have no jurisdiction to review the administrative order.
III.
Conclusion
For the reasons state above, Paret’s statutory property claim
and false arrest and imprisonment claims are DISMISSED.
Furthermore, I find that Paret has failed to prove all of the
elements of his malicious prosecution claim. Finally, the Court
has already ordered dismissed his remaining claims. Judgment
will be entered accordingly.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 23rd day of September, 2014.
S/ SILVIA CARREÑO-COLL
UNITED STATES MAGISTRATE JUDGE
finds himself in suggests that the civil asset forfeiture system may be
broken. Indeed, I note that just last week two former directors of the
Department of Justice’s Asset Forfeiture Office published an op-ed
regretting their role in building that regime. See JOHN YODER AND BRAD
CATES, Op-Ed., Government self-interest corrupted a crime-fighting tool into
an evil, WASH. POST, Sept. 18, 2014, available at, http://wapo.st/1mjYkQg.
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