González-Rucci v. United States Immigration & Naturalization Service ( 2008 )

United States Court of Appeals
For the First Circuit
No. 07-1198
ROSAURA GONZÁLEZ-RUCCI,
Plaintiff, Appellant,
v.
UNITED STATES IMMIGRATION AND NATURALIZATION SERVICE, ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Jay A. García-Gregory, U.S. District Judge]
Before
Torruella, Selya, and Boudin,
Circuit Judges.
Julio C. Alejandro-Serrano, with whom Office of Nicolás
Nogueras-Cartagena, was on brief for appellant.
Isabel Muñoz-Acosta, Assistant United States Attorney, with
whom Julia M. Meconiates, Assistant United States Attorney, Rosa
Emilia Rodríguez-Vélez, United States Attorney, and Nelson Pérez-
Sosa, Assistant United States Attorney, Chief, Appellate Division,
were on brief for appellees.
August 21, 2008
TORRUELLA, Circuit Judge. Rosaura González-Rucci
("González"), an immigration lawyer, claims to have rejected the
amorous advances of an Immigration and Naturalization Service
("INS") officer. Thereafter, the U.S. Attorney's Office
investigated her on suspicion that she aided and abetted aliens
entering into sham marriages for immigration purposes; she was
indicted and acquitted. González then brought several Federal Tort
Claims Act ("FTCA") claims -- including malicious prosecution and
abuse of process -- against the INS1 and a number of its officers
(collectively, "Defendants"). González's theory was that the
animosity generated by her rejection of the INS officer prompted
the U.S. Attorney's Office to seek a sham indictment in
retaliation. After a bench trial, the district court dismissed
González's claims, a result she now appeals. After careful review,
we affirm.
I. Background
As this case comes to us following a bench trial, we
recount the relevant facts as found by the district court,
consistent with record support. Able Sales Co. v. Compañía de
Azúcar de P.R., 406 F.3d 56, 59 (1st Cir. 2005); Bolduc v. United
States, 402 F.3d 50, 52 (1st Cir. 2005); see also González-Rucci v.
1
In 2003, the relevant functions of the INS were transferred to
the Immigration and Customs Enforcement Section of the Department
of Homeland Security, named as a successor to the former as a
defendant in this case.
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U.S. Immigration & Naturalization Serv., 460 F. Supp. 2d 307, 310-
12 (D.P.R. 2006) ("González-Rucci II") (district court's factual
findings).
González represented clients in cases before the
immigration authorities in San Juan, Puerto Rico. She befriended
an immigration officer named Andrés Núñez, but the two later fell
out when she rejected his romantic overtures.2 Thereafter, she
began to be treated less favorably at the San Juan INS office. For
example, she was made to wait many hours to file documents, was
reprimanded for using a routing slip normally prepared by INS
officials, was not sent timely notifications of her appointments
with immigration officers, causing her to miss meetings, and was
punished with suspension for failing to follow proper procedures in
stamping documents. She filed several complaints with INS
oversight officers complaining of this treatment, but no action was
taken.
In the meantime, then-INS Special Agent Luis Reyes was
investigating sham marriages involving Dominican aliens. Reyes's
supervisor, Roberto Ramos, was a friend of Núñez's and often ate
lunch with him. Reyes's investigation led him to suspect that
2
According to González's testimony, at a certain point in their
friendship Núñez asked her to go out dancing, and she told him that
she already had a boyfriend, that she thought such an activity
inappropriate because she and Núñez had a professional
relationship, and that in any event Núñez was not her type.
González testified that, from this point onward, Núñez was
exceedingly spiteful toward her in all their dealings.
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González was aiding and abetting U.S. citizens and undocumented
Dominican aliens to enter into sham marriages so that the latter
could avoid deportation or obtain other marriage benefits, and that
she had prepared coaching questions to help them lie to the INS.
Reyes presented his findings to the U.S. Attorney's Office, which
obtained and executed search warrants on González's home and office
and seized a number of documents. Among the seized documents was
what the parties call the "coaching questionnaire," in which
González advised clients as follows:
Be careful with medical plans and credit
cards, or purchasing cards for any store such
as Sears, Sam[']s, J.C. Penney's, Pitusa, etc.
If your spouse is not on that card as a
beneficiary or user, do not take it to
Immigration on the day of the interview, DO
NOT say you have it, it is better to say that
you do not have a medical plan, nor any credit
card at all, there is no way the Immigration
Service could know this.
A grand jury indicted González and two others for conspiracy to
defraud the INS and other crimes, but the district court entered
judgment of acquittal for González at the close of evidence.
González then sued the Defendants under the FTCA, 28
U.S.C. § 1346(b), and Bivens v. Six Unknown Named Agents of the
Federal Bureau of Narcotics, 403 U.S. 388 (1971), alleging
malicious prosecution and abuse of process.3 Specifically, she
averred that Núñez and his colleagues improperly used their
3
González originally made two other claims that she did not
ultimately pursue below and that are not at issue on appeal.
-4-
official positions to destroy her law practice, to obtain the
search warrants, to procure her arrest, and to secure her
indictment.
The district court dismissed the Bivens claims for lack
of subject-matter jurisdiction under Federal Rule of Civil
Procedure 12(b)(1) because they were untimely; it dismissed the
malicious prosecution and abuse of process claims under Federal
Rule of Civil Procedure 12(b)(6) because they failed to state a
claim on which relief could be granted. On appeal, we affirmed the
dismissal of the Bivens claims, González-Rucci v. U.S. Immigration
& Naturalization Serv., 405 F.3d 45, 48 (1st Cir. 2005) ("González-
Rucci I"), but reversed the dismissal of the malicious prosecution
and abuse of process claims, holding that they were viable. Id.
at 49-50.
On remand, the district court held a two-day bench trial.
Only two witnesses testified: González, for herself, and Reyes,
for the defense. Where relevant to the issues in this appeal, we
discuss their testimony below. At the end of González's
presentation of evidence, the Defendants moved for judgment on
partial findings under Federal Rule of Civil Procedure 52(c); the
court reserved judgment on the motion. When trial concluded, the
court dismissed the malicious prosecution and abuse of process
claims because González had failed to present sufficient credible
evidence to sustain them. See generally González-Rucci II, 460 F.
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Supp. 2d at 307. We discuss the court's reasoning below. González
now appeals, asserting that the evidence was sufficient to support
both claims.
II. Discussion
A. Standard of Review
Federal Rule of Civil Procedure 52 governs our review of
a trial court's findings of fact following a bench trial:
"Findings of fact, whether based on oral or other evidence, must
not be set aside unless clearly erroneous, and the reviewing court
must give due regard to the trial court's opportunity to judge the
witnesses' credibility." Fed. R. Civ. P. 52(a)(6). We will deem
a finding clearly erroneous only if, viewing the record in its
entirety, we are left with a "'strong, unyielding belief that a
mistake has been made.'" United States v. Jones, 523 F.3d 31, 36
(1st Cir. 2008) (quoting C.G. ex rel. A.S. v. Five Town Cmty. Sch.
Dist., 513 F.3d 279, 285 (1st Cir. 2008)); accord Carr v. PMS
Fishing Corp., 191 F.3d 1, 6 (1st Cir. 1999) (describing this
standard of review as "forbidding" because it requires that the
reviewing court have "an abiding conviction that the factfinder
stumbled badly"). We accord plenary review to the district court's
conclusions of law following a bench trial. See Anderson ex rel.
Dowd v. City of Boston, 375 F.3d 71, 80 (1st Cir. 2004).
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B. Malicious Prosecution Claim
In an FTCA case such as this one, we glean the applicable
substantive law from the state (or commonwealth) where the alleged
tort occurred -- here, Puerto Rico. Mitchell v. United States, 141
F.3d 8, 13 (1st Cir. 1998). A malicious prosecution claim under
Puerto Rico law has four elements: (1) the defendant instituted a
criminal action against the plaintiff; (2) the action was
terminated in favor of the plaintiff; (3) the defendant acted with
malice and without probable cause; and (4) the plaintiff suffered
damages. González-Rucci I, 405 F.3d at 49 (citing Nogueras-
Cartagena v. United States, 172 F. Supp. 2d 296, 315 (D.P.R.
2001)).
The Defendants do not dispute that González established
the first two elements of her malicious prosecution claim, nor do
they seem seriously to dispute the fourth. They do, however,
challenge the existence of the third element: whether some or all
of them acted with malice and pursued González's indictment without
probable cause. González argues that the evidence presented at
trial established this element. She testified about how she was
singled out for harassment at the San Juan INS office following her
rejection of Núñez. She also testified that none of the Dominican
aliens the U.S. Attorney's office alleged to be her clients were,
in fact, her clients. According to González, Reyes thus had no
basis to conclude that she took part in a scheme to coach these
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persons to enter into sham marriages, and he had no basis
subsequently to seek her indictment. González argued before the
district court, and reiterates to us, that the extreme animosity
demonstrated toward her at the San Juan INS office, combined with
Reyes's lack of any genuine justification for seeking her
indictment and his supervisor Ramos's frequent lunches with Núñez,
permits the reasonable inference that Reyes and the prosecutors who
acted on his findings were motivated by malice in pursuing her
prosecution.
The district court was unpersuaded by this theory and
found, on its assessment of the testimony of González and Reyes and
other evidence, that González had not satisfied the third element
of her malicious prosecution claim. Specifically, the court found
that she had failed to prove any link between Reyes's investigation
and actions by Núñez or other relevant INS officers who may have
had a vendetta against her, and that Ramos and Núñez's lunches
together did not establish such a link. On the other hand, the
court credited Reyes's testimony that, before seeking González's
indictment, he interviewed several persons suspected of entering
into sham marriages, and that these persons implicated González in
coaching them to circumvent the immigration laws. The court
believed Reyes's assertion that it was this information,
subsequently provided by Reyes to the U.S. Attorney's Office, that
led the latter to apply for the search warrants. The court then
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found that the evidence gathered in these searches -- especially
the coaching questionnaire4 -- established adequate probable cause
for believing González had committed a crime (a conclusion
independently reached by the magistrate who issued the search
warrants, the different magistrate who issued the arrest warrant,
and the members of the grand jury). See González-Rucci II, 460 F.
Supp. 2d at 313.
Our review of the record reveals ample support for the
court's factual findings. Reyes testified that he interviewed a
number of Dominican aliens or their U.S. citizen spouses, and that
these persons described advice González gave them on various
aspects of entering into and maintaining sham marriages -- such as,
for example, registering a child fathered by a Dominican as having
been fathered by a U.S. citizen husband, or divorcing a Dominican
husband and remarrying an American one to avoid deportation. Reyes
also testified that, although he and Núñez both worked at the INS,
they were not personal friends, and he did not recall Núñez ever
discussing any aspect of González's case with him or forwarding him
any information about her. Reyes testified repeatedly and without
equivocation that no one -- not Núñez, Ramos, or any other INS
officer -- directed him to seek out information that could be used
against González, or to harass her in any way.
4
With respect to the coaching questionnaire, the court remarked
that it "certainly dissipate[d] any doubt concerning the legitimacy
of the criminal charges leveled against plaintiff."
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The district court, as the trier of fact, was entitled to
credit Reyes's testimony as a true account of what actually
happened. See Carr, 191 F.3d at 7 ("We have said with a regularity
bordering on the monotonous that, in a bench trial, credibility
calls are for the trier . . . .") (citations omitted). While the
testimony is not without a few minor inconsistencies -- seemingly
due in large part to Reyes's inability to remember certain details
about events that transpired more than ten years prior -- none of
these is anywhere near serious enough to render the district
court's credibility assessment an abuse of discretion. Cf., e.g.,
United States v. Jones, 187 F.3d 210, 214-16 (1st Cir. 1999) (no
clear error in crediting witnesses' testimony from suppression
hearing despite several minor inconsistencies); Gallo Motor Ctr.,
Inc. v. Mazda Motor of Am., Inc., 347 F.3d 20, 28-29 (1st Cir.
2003) (similar).
Furthermore, we find nothing in the record that would
lead us to disturb the district court's conclusion that González
failed to connect Núñez (or other INS colleagues that may have
borne animosity towards her) with Reyes and his investigation,
through Ramos or otherwise. Unlike a decision on a motion for
summary judgment, after a bench trial the district court is not
obliged to believe the nonmovant's sworn version of the facts, see,
e.g., Velázquez-García v. Horizon Lines of P.R., Inc., 473 F.3d 11,
18 (1st Cir. 2007), or to draw inferences in her favor, see, e.g.,
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Franceschi v. U.S. Dep't of Veterans Affairs, 514 F.3d 81, 84 (1st
Cir. 2008). Instead, the court is free to disregard a party's
desired inference in favor of a competing inference, provided the
latter is plausible. See Torres-Lazarini v. United States, 523
F.3d 69, 72 (1st Cir. 2008) (court's choice between "plausible but
competing inferences" from evidence presented at bench trial cannot
be clearly erroneous) (citing Cape Fear, Inc. v. Martin, 312 F.3d
496, 500 (1st Cir. 2002)). The court here determined that, on the
basis of Reyes's findings reached in good faith, Reyes and the
prosecutors who acted on the findings in seeking González's
indictment did so properly. We think this was a plausible
inference drawn from Reyes's testimony which, as noted above, the
district court correctly credited.
Accepting, then, the facts the district court found to
have been proven and the reasonable inferences drawn by the court,
we find no infirmity in its application of the law. Puerto Rico
law requires both malice and action without probable cause to
sustain a malicious prosecution claim, González-Rucci I, 405 F.3d
at 49, and the court's factual findings plainly reveal that neither
was present in these circumstances. We accordingly affirm the
dismissal of this claim, and proceed to González's challenge to the
dismissal of the abuse of process claim.
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C. Abuse of Process Claim
A plaintiff must prove two elements to make out a claim
for abuse of process under Puerto Rico law: (1) that the defendant
had a bad motive; and (2) that it used the legal process for an
improper, collateral objective. González-Rucci I, 405 F.3d at 49(quoting Microsoft Corp. v. Computer Warehouse, 83 F. Supp. 2d 256,
261 (D.P.R. 2000)). In contrast to malicious prosecution claims,
which "are generally directed to a legal action as a whole," abuse
of process claims "typically cover[] challenges to the legal
action's procedural components," such as subpoenas or discovery
mechanisms. Id. (citing Nogueras-Cartagena, 172 F. Supp. 2d at
316).
The district court found that González "did not meet her
burden of showing any procedural component of her criminal
prosecution was influenced by a bad motive, or conducted with the
purpose of attaining an improper collateral objective," for two
reasons. González-Rucci II, 460 F. Supp. 2d at 314. First, she
failed to put forth any evidence to show that Reyes or the
prosecutors obtained her indictment by presenting knowingly false
testimony to the grand jury. Second, she failed to prove that any
aspect of Reyes's investigation was at all related to her rejection
of Núñez -- and thus potentially tainted by the latter's alleged
resentment.
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What we have said above allows us easily to dispose of
this ground of appeal. The district court was well within its
discretion in determining that Reyes's investigation, and the
actions of the U.S. Attorney's Office in response to Reyes's
findings, were performed in good faith and were not influenced by
Núñez or anyone else at the INS office hostile to González.
Without this link, the record does not show the requisite bad
motive on the part of Reyes or the prosecutors who sought
subpoenas, undertook discovery, and participated in the other
procedural aspects of González's criminal case. As such, we must
also affirm the dismissal of González's abuse of process claim.
III. Conclusion
For the foregoing reasons, we affirm the dismissal of
González's claims in all respects.
Affirmed.
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