United States Court of Appeals
For the First Circuit
No. 08-1086
WILFREDO MARTÍNEZ-RODRÍGUEZ,
Plaintiff, Appellant,
v.
ROGELIO E. GUEVARA, Chief of Operations, Drug Enforcement
Administration; JEROME HARRIS, Special Agent in Charge,
Caribbean Field Division; ENRIQUE NIEVES, Group Supervisor;
ARAMIS QUIÑONES, Special Agent; NELSON GONZÁLEZ, Special Agent;
FRANCISCO J. ÁLVAREZ, Special Agent; JOHN F. KANIG,
Special Agent,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. Francisco A. Besosa, U.S. District Judge]
Before
Torruella, Lipez, and Howard,
Circuit Judges.
Luis Rafael Rivera,* for appellant.
Ginette L. Milanés, Assistant United States Attorney, with
whom Rosa E. Rodríguez-Vélez, United States Attorney, Nelson Pérez-
*
Attorney Rafael Rivera failed to appear at oral argument without
previously apprising the court of his inability to appear. In the
absence of appellant's counsel, the court heard arguments from
appellees' counsel pursuant to Fed. R. App. P. 34(e). In response
to an order of the court, Rivera explained that he was unable to
appear at oral argument due to a calendar conflict. We express our
discontent with Rivera's failure to appear before the court for
oral argument. An attorney "who fails to appear for oral argument
and is not excused therefrom is violating an important duty to the
client and an important obligation to the court." Dickens v. State
of Mo., 887 F.2d 895, 896, n.2 (8th Cir. 1989).
Sosa, Assistant United States Attorney, Chief, Appellate Division,
and Germán A. Rieckehoff, Assistant United States Attorney, were on
brief for appellees.
March 1, 2010
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TORRUELLA, Circuit Judge. Plaintiff-Appellant Wilfredo
Martínez-Rodríguez appeals the district court's entry of summary
judgment dismissing, on qualified immunity grounds, his claim that
several Drug Enforcement Administration ("DEA") agents violated his
Fourth Amendment right to be free from arrest and prosecution
without probable cause. Martínez-Rodríguez claims that several DEA
agents provided false and misleading statements to the grand jury
and throughout his criminal prosecution with knowledge of their
falsity or in reckless disregard for the truth in order to
manufacture probable cause against him. After a careful review of
the record, we find that Martínez-Rodríguez has not made a showing
that defendants intentionally or recklessly provided false or
misleading statements to support his indictment and arrest on drug-
related charges. We therefore affirm the district court's
judgment.
I. Background1
A. Underlying Drug Trafficking Investigation
The facts that underlie this appeal arise from a DEA
investigation into alleged drug trafficking activities conducted by
several police officers assigned to the Caguas Tactical Operations
1
The facts are drawn from the parties' statements of material
uncontested facts and the exhibits submitted by the parties at the
summary judgment stage. Because this is an appeal from a grant of
summary judgment, we recite the facts in the light most favorable
to plaintiff-appellant, Martínez-Rodríguez. Burke v. Town of
Walpole, 405 F.3d 66, 71 (1st Cir. 2005).
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Unit of the Puerto Rico Police Department ("PRPD"). On the basis
of information provided by a confidential source around December
2000, DEA agents John F. Kanig and Aramis Quiñones ("Quiñones")
learned that PRPD officer Roberto Martínez-Hernández ("Hernández")
was dealing large quantities of drugs. The investigation also
revealed that another police officer, Alexis López-López
("López-López"), was supplying heroin to Hernández.
From January to March 2001 and at the behest of the DEA
agents, the confidential source conducted two separate heroin
purchases from Hernández. The DEA agents also established direct
contact with Hernández through an undercover agent, Nelson González
("González"), who posed as a drug trafficker from Texas. González
and Hernández also discussed future purchases of heroin.
Although the DEA investigation centered on Hernández's
and López-López's drug trafficking activities, its efforts also
yielded information that Martínez-Rodríguez, another PRPD officer,
had been in contact with both López-López and Hernández. For
example, two subpoenas of López-López's cell phone records revealed
that López-López and Martínez-Rodríguez had at least twelve
telephone communications between February 27, 2001 and March 26,
2001, and that between April 1, 2001 and April 24, 2001,
López-López called Martínez-Rodríguez thirteen times, while
Martínez-Rodríguez called López-López five times. Finally, a
telephone toll/subscriber analysis of a telephone subscribed to
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José R. Martínez-Hernández revealed three prior telephone
communications between Hernández and Martínez-Rodríguez.
B. The May 14th Meeting
The crucial events for the purposes of the present appeal
transpired on May 14, 2001, when López-López and Hernández met with
undercover agent González at the Oyster Bar Restaurant in Isla
Verde, Puerto Rico. Martínez-Rodríguez accompanied López-López to
the Oyster Bar that day. Hernández served as an intermediary
between López-López and undercover agent González as he introduced
López-López to González and instructed them to discuss potential
drug deals. After this introduction, Hernández, López-López, and
González discussed future drug transactions which included the
possibility of buying heroin to distribute in the United States.
The three men discussed how the heroin would be delivered and
distributed, its purchase price, and payment methods.
During the meeting, Hernández, López-López, and González
were seated at the same table. But at least throughout part of the
drug-related meeting, Martínez-Rodríguez was seated at a nearby
table. When the meeting ended after approximately two and a half
hours, the four men left the restaurant at the same time.
C. Martínez-Rodríguez's Indictment and Filing of His Civil Rights
Suit
In the course of a grand jury investigation special agent
Quiñones testified as to the details of the drug trafficking
operation and stated that Martínez-Rodríguez acted as López-López's
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bodyguard during the May 14th meeting. Martínez-Rodríguez was
subsequently indicted and arrested on drug trafficking charges. On
August 2, 2002, Martínez-Rodríguez was acquitted following a jury
trial. He subsequently filed a civil rights action under Bivens v.
Six Unknown Named Agents of the Federal Bureau of Narcotics, 403
U.S. 388 (1971), against several DEA officials and agents.
Martínez-Rodríguez named two group of defendants in his complaint.
In the first group of defendants he included DEA officials
Rogelio E. Guevara, Chief of Operations of the DEA; Jerome Harris,
Special Agent in Charge of the Caribbean Field Division of the DEA;
and Enrique Nieves, Group Supervisor and Acting Investigator of the
DEA. The second group of defendants included the DEA agents who
participated in the drug trafficking investigation, namely, DEA
special agents Aramis Quiñones, Nelson González, Francisco J.
Álvarez, and John F. Kanig (collectively, "Defendants").
In his complaint, Martínez-Rodríguez claimed that DEA
special agent Quiñones knowingly gave false or misleading testimony
before the grand jury in order to establish probable cause for his
indictment and arrest. According to Martínez-Rodríguez, the other
DEA officials and agents listed as defendants had constructive
knowledge of Quiñones's false testimony to the grand jury, and they
failed to reveal that Martínez-Rodríguez did not participate in the
drug-related conversation at the Oyster Bar, resulting in his
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illegal arrest, without probable cause, in violation of his Fourth,
Fifth and Fourteenth Amendment rights.
Following a few procedural incidents concerning service
of process and personal jurisdiction, Defendants filed a Motion to
Dismiss arguing, inter alia, that the complaint failed to state a
claim under Bivens for which relief could be granted and that in
the alternative they were entitled to qualified immunity. Adopting
a Report and Recommendation issued by a magistrate judge, the
district court dismissed Martínez-Rodríguez's Fifth and Fourteenth
Amendment claims. Defendants subsequently filed a Motion for
Summary Judgment requesting dismissal of Martínez-Rodríguez's
Fourth Amendment claim on qualified immunity grounds. The district
court granted Defendant's motion and dismissed the case, holding
that Defendants' actions were objectively reasonable under clearly
established law. Martínez-Rodríguez timely appeals the district
court's dismissal of his Fourth Amendment claim.
II. Discussion
As a threshold matter we clarify the scope of the
arguments raised by the parties in this appeal. Throughout the
different stages of this litigation and in their briefs, the
parties have rested on two basic assumptions. First, they assume
that Defendants are protected by qualified immunity rather than
absolute immunity. Second, they assume that the constitutional
claim at issue should be treated as a Fourth Amendment violation
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akin to that discussed in Franks v. Delaware, 438 U.S. 154 (1978).
We adopt the parties' assumptions for purposes of this appeal but
do not decide whether they are warranted.
A. Summary Judgment
Our review of the district court's entry of summary
judgment on qualified immunity grounds is de novo. Bergeron v.
Cabral, 560 F.3d 1, 7 (1st Cir. 2009).
Summary judgment should be granted if the record "show[s]
that there is no genuine issue as to any material fact and that the
movant is entitled to judgment as a matter of law." Fed. R. Civ.
P. 56(c)(2). A genuine issue exists where the evidence is
sufficient for a reasonable trier of fact to return a verdict in
favor of the nonmoving party. Taylor v. Am. Chemistry Council, 576
F.3d 16, 24 (1st Cir. 2009). Similarly, "[a] fact is material if
it has the potential of determining the outcome of the litigation."
Maymí v. P.R. Ports Auth., 515 F.3d 20, 25 (1st Cir. 2008). "Only
disputes over facts that might affect the outcome of the suit under
the governing law will properly preclude the entry of summary
judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986).
In order to overcome a motion for summary judgment, the
non-moving party must put forth specific facts to support the
conclusion that a triable issue subsists. Iverson v. City of
Boston, 452 F.3d 94, 98 (1st Cir. 2006). With respect to each
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issue on which the nonmoving party has the burden of proof at
trial, that party must "present definite, competent evidence to
rebut the motion." Vineberg v. Bissonnette, 548 F.3d 50, 56 (1st
Cir. 2008)(quoting Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822
(1st Cir. 1991)). However, "summary judgment cannot be defeated by
relying on improbable inferences, conclusory allegations, or rank
speculation." Ingram v. Brink's, Inc., 414 F.3d 222, 229 (1st Cir.
2005).
B. Qualified Immunity
Qualified immunity seeks to accommodate the public
interest in deterring unlawful conduct with the need to provide a
forum for individuals to pursue redress for constitutional wrongs
suffered in the hands of public officials. See Harlow v.
Fitzgerald, 457 U.S. 800, 819 (1982). The qualified immunity
doctrine protects federal and state officials from civil liability
in the performance of "discretionary functions . . . insofar as
their conduct does not violate clearly established statutory or
constitutional rights of which a reasonable person would have
known." Id. at 818.
The qualified immunity test is identical for claims
pursued under § 1983 and for Bivens-type suits. Wilson v. Layne,
526 U.S. 603, 609 (1999). Because the parties briefed the
qualified immunity issue under the three-part test employed by this
court prior to the Supreme Court's decision in Pearson v. Callahan,
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129 S. Ct. 808 (2009), we will review the district court's grant of
qualified immunity in this case under the pre-Pearson tripartite
test.2 Under this three-pronged mode of analysis, we must
determine "(i) whether the plaintiff's proffered version of the
facts, if true, makes out a violation of a constitutionally
protected right; (ii) . . . whether that right was clearly
established at the time of the putative violation; and (iii) . . .
whether a reasonable public official, situated similarly to the
defendant, should have understood the challenged act or omission to
violate the discerned right." Bergeron, 560 F.3d at 7 (quoting
Morelli v. Webster, 552 F.3d 12, 18 (1st Cir. 2009).
After Pearson, we are not required to take these
inquiries in strict sequence. Id. But because the district court
in this case chose to address these steps in sequence, and the
parties briefed the issue on that basis, we choose to employ the
same sequential analysis.
2
Pursuant to the Supreme Court's decision in Pearson, we now
collapse the three-step qualified immunity analysis into a
two-part test which requires courts to determine: "(1) whether the
facts alleged or shown by the plaintiff make out a violation of a
constitutional right; and (2) if so, whether the right was 'clearly
established' at the time of the defendant's alleged violation."
Maldonado v. Fontánes, 568 F.3d 263, 269 (1st Cir. 2009). We would
reach the same result in the present case if we were to review the
district court's grant of qualified immunity under the newly-
adopted two-part test. See Bergeron, 560 F.3d at 7 n.2 (explaining
that "[t]he three-step approach is functionally equivalent to the
two-step approach" and holding that the resolution of the case
would be the same "regardless of [the] methodology . . .
employed").
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Martínez-Rodríguez grounds his Fourth Amendment claim on
an allegation that Defendants procured his arrest and indictment on
the basis of false testimony and material misrepresentations given
intentionally or with reckless disregard for the truth. Martínez-
Rodríguez claims that Quiñones falsely testified before the grand
jury that Martínez-Rodríguez acted as López-López's bodyguard
during the May 14th meeting and that he participated in the drug-
related conversation. Martínez-Rodríguez also claims that the
other Defendants had constructive knowledge of Quiñones's false
testimony but intentionally or recklessly failed to reveal to the
grand jury or the court that Martínez-Rodríguez had not
participated in the drug conspiracy.
It is clearly established law that the Fourth Amendment
requires that arrests be based upon probable cause. See Beck v.
Ohio, 379 U.S. 89, 91 (1964); Abreu-Guzmán v. Ford, 241 F.3d 69, 73
(1st Cir. 2001). It is also beyond peradventure that arrests
procured on the basis of material false statements or testimony
given in reckless disregard for the truth violate the Fourth
Amendment. See Burke, 405 F.3d at 81 (stating that officers
violate the Fourth Amendment if they "act[] in reckless disregard,
with a high degree of awareness of [the] probable falsity of
statements made in support of an arrest warrant" (internal
quotation marks omitted)); Aponte-Matos v. Toledo-Dávila, 135 F.3d
182, 187 (1st Cir. 1998) ("An officer who obtains a warrant through
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material false statements which result in an unconstitutional
search may be held personally liable for his actions under
§ 1983."); see also Franks, 438 U.S. at 155-56 (holding that the
use of false statements to obtain a warrant violates the Fourth
Amendment provided that the false statements were material to the
finding of probable cause). There is also no question that these
constitutional protections extend to the grand jury context. Thus,
there is a clearly established Fourth Amendment right not to be
indicted and arrested on the basis of false or misleading
statements given before a grand jury. Cf. Limone v. Condon, 372
F.3d 39, 45 (1st Cir. 2004) ("[T]hose charged with upholding the
law are prohibited from deliberately fabricating evidence and
framing individuals for crimes they did not commit.").
In a diffuse fashion, Martínez-Rodríguez contends there
are genuine issues of material facts regarding the veracity of
Quiñones's testimony and conclusion that Martínez-Rodríguez acted
as López-López's bodyguard and was able to hear the drug-related
conversation. He also claims there is a factual dispute regarding
the reasonableness of Defendants' belief that he was part of the
drug-trafficking conspiracy. In support of this claimed factual
dispute Martínez-Rodríguez relies on the transcript of Quiñones's
grand jury testimony. However, a review of the record reveals that
Martínez-Rodríguez never attached Quiñones's grand jury transcript
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to his opposition to Defendant's motion for summary judgment.3
Given that Martínez-Rodríguez's contention is based on evidence not
supported on the record, we conclude that Martínez-Rodríguez has
failed to shoulder the burden of proving that a material factual
dispute exists that would preclude the court from addressing
Defendants' qualified immunity claim. Nieves v. Univ. of P.R., 7
F.3d 270, 280 (1st Cir. 1993)("Factual assertions by counsel in
motion papers, memoranda, or briefs are generally not sufficient to
generate a trialworthy issue.").
Moreover, the undisputed facts establish that: (1)
Martínez-Rodríguez attended the May 14th meeting with López-López,
an individual who was under investigation for drug trafficking; (2)
the purpose of the meeting was to discuss future drug transactions;
(3) prior to the May 14th meeting, Martínez-Rodríguez had
established telephone contacts with López-López and Hernández, two
of the individuals who were under investigation for drug
trafficking and who attended the meeting; (4) during the meeting,
3
The district court indicated that Martínez-Rodríguez never filed
the transcript of Quiñones's grand jury testimony. Martínez-
Rodríguez v. Guevara, 551 F. Supp. 2d 142, 148 (D.P.R. 2007). At
oral argument, Defendants' counsel stated that she had not seen or
received copy of Quiñones's grand jury testimony during the lower
court proceedings and that Martínez-Rodríguez included said
transcripts for the first time on appeal. Because Martínez-
Rodríguez's counsel failed to appear at oral argument, we lack the
benefit of his explanation regarding the grand jury transcript. In
his brief, Martínez-Rodríguez claimed "the grand jury transcripts
were attached as exhibit 7 to Defendant's Statement of Facts in
support of Motion for Summary Judgment." Appellant's Br. at 14.
A review of the record, however, contradicts this assertion.
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undercover agent González engaged in a drug-related conversation
with López-López and Hernández that lasted approximately two and a
half hours; and (5) at least during some part of the two and a half
hours in which Hernández, López-López, and González discussed
future drug transactions, Martínez-Rodríguez was seated at a table
in close proximity to where the three men were seated.
Additionally, Martínez-Rodríguez interacted with González, López-
López, and Hernández during their meeting when he brought them
drinks to their table.
On the basis of these facts, we find that a reasonable
officer, faced with the events that transpired during the May 14th
meeting and given the background of the drug investigation, could
have concluded that Martínez-Rodríguez was involved in the
conspiracy and that he was there as a bodyguard. As we stated,
Defendants knew that Martínez-Rodríguez had been in contact via
telephone with López-López and Hernández since February 2001. On
May 14, 2001, Martínez-Rodríguez accompanied López-López to a
meeting in which drug transactions were undisputably discussed. At
least during part of the two and a half hours of conversation
Martínez-Rodríguez was at close proximity to where the others
discussed future purchases of heroin; at some point he interacted
with Hernández, López-López, and González; and he left the meeting
with the three men. From this, a reasonable officer could have
concluded that Martínez-Rodríguez's role was more than that of an
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unwitting bystander or that he was innocently escorting López-
López. Cf. United States v. Batista-Polanco, 927 F.2d 14, 18 (1st
Cir. 1991) ("[I]t runs counter to human experience to suppose that
criminal conspirators would welcome innocent nonparticipants as
witnesses to their crimes.").
"Reasonable police investigators must be secure in the
knowledge that they can present evidence of a crime to the proper
charging officials without worry of suit, so long as they do not
fabricate evidence or submit evidence with certain knowledge of its
falsity." Williams v. City of Albany, 936 F.2d 1256, 1260 (11th
Cir. 1991). Viewing the evidence in the light most favorable to
Martínez-Rodríguez, and based on the facts he has presented to us,
we cannot conclude that Quiñones intentionally or recklessly
provided material false testimony to the grand jury, or that the
other Defendants had knowledge of such falsity and intentionally or
recklessly provided false statements or made material
misrepresentations before the grand jury investigation and
throughout Martínez-Rodríguez's prosecution.
Martínez-Rodríguez claims that he did not participate in
the drug-related conversation and he denies that he acted as López-
López's bodyguard. Martínez-Rodríguez relies on his testimony
during the criminal trial held against him. The district court
concluded that Martínez-Rodríguez failed to raise a genuine issue
of material facts regarding his inability to participate in the
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drug conversation because he had failed to include evidence in
support of the allegations that he was talking on the phone with
friends and relatives. Our review of the record reveals that
Martínez-Rodríguez attached a copy of his sworn testimony during
the criminal trial held against him. The transcript shows that
Martínez-Rodríguez denied having heard the drug conversation and
testified that he received several phone calls while he was at the
restaurant and that on various occasions he left the restaurant to
answer the calls. However, even if we accept that
Martínez-Rodríguez spoke on his cell phone at some point during the
two and a half hours in which López-López, Martínez-Hernández, and
González discussed drug transactions, this would not alter our
conclusion that Martínez-Rodríguez has failed to show that Quiñones
made false or misleading statements before the grand jury regarding
Martínez-Rodríguez's role and participation in the May 14th
meeting. In fact, the testimony of undercover agent González at
Martínez-Rodríguez's criminal trial is consistent with Quiñones's
conclusion that Martínez-Rodríguez was providing protection during
the meeting and that although Martínez-Rodríguez was not actively
involved in the drug-related conversation, he appeared to be
involved in the conspiracy.
The qualified immunity framework shields from liability
"all but the plainly incompetent [and] those who knowingly violate
the law." Morelli, 552 F.3d at 18 (quoting Malley v. Briggs, 475
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U.S. 335, 341 (1986)). Even if Quiñones erred in concluding that
Martínez-Rodríguez was part of the conspiracy, or harbored a
mistaken belief that Martínez-Rodríguez acted as López-López's
bodyguard, there is no evidence to show that he knew these
statements were false or that Quiñones "in fact entertained serious
doubts as to the truth" of his statements or that the
"circumstances evinc[ed] obvious reasons to doubt the[ir]
veracity." Burke, 405 F.3d at 81 (first alteration in original).
Likewise, there is no indication that the other Defendants either
conspired with Quiñones to provide false statements to the grand
jury or that they failed to reveal the falsity of Quiñones
testimony. Martínez-Rodríguez has therefore failed to put forth
sufficient facts for a rational jury to conclude that Defendants
violated his Fourth Amendment rights.
Absent evidence to support the claim that no reasonable
officer in Defendants' position would have believed that Martínez-
Rodríguez acted as a bodyguard and was involved in the drug
conspiracy, we affirm the district court's conclusion that
Defendants are entitled to qualified immunity as a matter of law.
Affirmed.
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