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
Edelmiro Salas González for appellant.
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.
Torruella, Lipez, and Thompson, Circuit Judges.
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. Having carefully reviewed the record and
law, we agree that Paret has no available remedy. Hence, we
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.
The Criminal Proceedings
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.
encounters with Paret ended in March 2004, after Paret told
the agent he had been unable to reach an agreement with his
intended drug source on the transportation fee. 567 F.3d at
4. Paret suggested holding off on further negotiation because
other individuals with whom he had been in contact had been
arrested. Id. Paret and 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
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.
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 González to transport to Puerto Rico,
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.
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.
The Administrative Forfeiture
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))); 18 U.S.C. § 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.
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. 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 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.
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"), 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).
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)).
Paret's Administrative Forfeiture
does not dispute that he received the statutorily required
notice of the seizure of his trucks and boat. 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.
The Civil Lawsuit
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,  but allowed the remaining claims to go
trial was held on the claims for false arrest and
imprisonment,  malicious prosecution, and tortious
deprivation of property. The court ultimately concluded,
however, that the deprivation of property and false
imprisonment claims failed as a matter of law, the former
because Paret's civil forfeiture submission had been
untimely and the latter because Paret was 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
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
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 ...