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Paret-Ruiz v. United States

United States Court of Appeals, First Circuit

June 28, 2016


v.
UNITED STATES OF AMERICA, Defendant, Appellee. v.

         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]

          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.

          Before Torruella, Lipez, and Thompson, Circuit Judges.

          LIPEZ, Circuit Judge.

         Appellant Jorge Paret-Ruiz ("Paret") was convicted and imprisoned for nearly four years on drug conspiracy charges that a previous panel of this court concluded were not supported by the evidence produced at his trial. See United States v. Paret-Ruiz, 567 F.3d 1 (1st Cir. 2009). The charges also led to Paret's forfeiture of two trucks and a boat. Following the reversal of his conviction, Paret filed this civil suit under the Federal Tort Claims Act ("FTCA"), alleging, inter alia, false arrest and imprisonment, malicious prosecution, and the unlawful deprivation of his property. The district court found no basis for relief on any of Paret's claims.[1] Having 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.

         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 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 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.

         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. § 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 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).

         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]

         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.

         C. The Civil Lawsuit

         In September 2010, about a year after his release from prison, Paret filed an administrative claim with the DEA alleging damages of $585, 000 stemming from his arrest, prosecution, and the forfeiture of his property. The DEA denied the claim, and Paret then filed this lawsuit under the FTCA asserting causes of action for false arrest and imprisonment, malicious prosecution, excessive force, and improper taking of his property. The district court dismissed the claims alleging physical harm and the unconstitutional taking of his property, [8] but allowed the remaining claims to go forward.

         A bench trial was held on the claims for false arrest and imprisonment, [9] malicious prosecution, and tortious deprivation of property. The court ultimately concluded, however, that the deprivation of property and false imprisonment claims failed as a matter of law, the former because Paret's civil forfeiture submission had been untimely and the latter because Paret was 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."

         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 ...

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