Not for Publication in West's Federal Reporter
United States Court of Appeals
For the First Circuit
No. 08-1482
JORGE E. APONTE-HERNÁNDEZ,
Plaintiff, Appellant,
v.
ANA P. CRUZ-VÉLEZ, Contractor Prosecutor for the Government of
Puerto Rico, and HÉCTOR M. MONTAÑEZ-REYES, Contractor Prosecutor
for the Government of Puerto Rico,
Defendants, Appellees,
ANÍBAL ACEVEDO-VILÁ, Governor of Puerto Rico, JOSÉ PÉREZ-
RODRÍGUEZ, Contractor Prosecutor for the Government of Puerto
Rico, JANE DOE, Contractor Consultant for the Government of
Puerto Rico, INSURANCE COMPANIES A, B, C,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
[Hon. José A. Fusté, U.S. District Judge]
Before
Torruella, Selya, and Leval,*
Circuit Judges.
John F. Nevares with whom Xiomara Colón Rodríguez and
John F. Nevares & Associates, P.S.C. were on brief for appellant.
Leticia Casalduc-Rabell, Assistant Solicitor General,
with whom Maite D. Oronoz Rodríguez, Acting Solicitor General, and
Ileana Oliver-Falero, Acting Deputy Solicitor General, were on
brief for appellees.
*
Of the Second Circuit, sitting by designation.
July 2, 2009
LEVAL, Circuit Judge. Plaintiff Jorge E. Aponte-
Hernández appeals from the judgment of the United States District
Court for the District of Puerto Rico in favor of Defendants Ana
Cruz-Vélez and Héctor Montañez-Reyes based upon the jury’s verdict
after trial, dismissing Plaintiff’s suit brought under 42 U.S.C. §
1983. Plaintiff’s complaint alleged that the defendants engaged in
malicious and retaliatory prosecution of criminal charges related
to his role as director of the Puerto Rico Office of Management and
Budget (“OMB”). He contends on appeal that the jury’s verdict was
against the weight of the evidence and that the district court
should therefore have granted him a new trial. We find the
evidence appropriately sustained the verdict and therefore affirm
the judgment.
BACKGROUND
Aponte-Hernández was director of Puerto Rico’s OMB in the
1990s. In 1997 and 1998, his office was responsible for a real
estate transaction in which the government purchased an office
building at four times the price at which it was originally
offered. The transaction was reviewed by a Blue Ribbon Commission
created by the then-governor of Puerto Rico to investigate
corruption. The Blue Ribbon Commission determined that Aponte-
Hernández’s role in the transaction exhibited a lack of
professionalism and that his agency had acted in a “gross and
unforgivably negligent manner.” Accordingly, the Blue Ribbon
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Commission recommended that the Puerto Rico Department of Justice
consider filing a civil case against Aponte-Hernández. The
Department of Justice referred the matter to a Special Independent
Prosecutor (“SIP”) tasked with investigating public officials.
Upon the expiration of the contract of the person initially acting
as SIP on Plaintiff’s case, Defendant Cruz-Vélez took over the
prosecution, with Defendant Montañez-Reyes acting as her deputy.
Cruz-Vélez recommended and ultimately brought criminal charges
against Aponte-Hernández for violating 33 L.P.R.A. § 4391, which
imposes criminal liability on a public official who “[n]eglects or
fails to safekeep or disburse public funds as prescribed by law.”
At the eventual criminal trial of those charges, Aponte-Hernández
was “peremptorily” acquitted by the trial judge for “total lack of
evidence.”
Plaintiff then filed this action in the United States
District Court against Cruz-Vélez, Montañez-Reyes, and José Pérez-
Rodríguez, who worked with them on the prosecution of Plaintiff’s
case.1 The complaint asserted claims under 42 U.S.C. §§ 1983,
1985, and 1986, alleging that the defendants engaged in malicious
and retaliatory prosecution. The district court eventually
1
His complaint also named the governor of Puerto Rico, as well
as various John Doe defendants who were never identified.
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dismissed all claims except the claims against Cruz-Vélez and
Montañez-Reyes pursuant to § 1983.2
During trial Aponte-Hernández took the witness stand and
called several witnesses, including his former OMB subordinate Juan
Emmanuelli, the original prosecutor on his case, his former
attorney, and the appraiser and original owner of the property at
issue in the investigation, as well as Defendants Cruz-Vélez and
Pérez-Rodríguez. The defendants presented direct testimony by
Cruz-Vélez and otherwise relied on cross-examination of the
plaintiff’s witnesses.
After a brief deliberation, the jury delivered a verdict
in favor of the defendants. Plaintiff moved, pursuant to Fed. R.
Civ. P. 59, for a new trial on the ground that the verdict was
against the weight of the evidence. Before sending the case to the
jury, the trial judge expressed his view (out of the earshot of the
jury) that “the prosecution of Mr. Aponte was a total abuse. . . .
There was no reason in law or in fact to proceed with that
prosecution. . . . I think this is a case of malicious
prosecution.” Nonetheless, the court denied the motion for a new
trial. The trial court explained that the case was not for him,
but for the jury to decide. The judge added: “This record fully
2
Aponte-Hernández does not appeal from the dismissal of the
claims against Cruz-Vélez and Montañez-Reyes under §§ 1985 and 1986
or the dismissal of the claims against the other defendants.
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supports the jury verdict. The jury could have easily” found for
the defendants.
DISCUSSION
On appeal, Plaintiff contends that the jury’s verdict in
favor of Cruz-Vélez and Montañez-Reyes regarding his claim under §
1983 was against the weight of the evidence, and that the district
court erroneously denied his motion for a new trial. In order to
prevail in establishing such a claim on appeal, the appellant must
show that the district court’s ruling was “a manifest abuse of
discretion,” Marcoux v. Shell Oil Prods. Co. LLC, 524 F.3d 33, 40
(1st Cir. 2008) (quoting United States v. George, 448 F.3d 96, 101
(1st Cir. 2006)), and that the weight of the evidence is
“grotequely lopsided” in his favor, Freeman v. Package Machinery
Co., 865 F.2d 1331, 1334 (1st Cir. 1988).
The only issue in significant dispute at trial was
whether the defendants acted with malice in the face of clear
absence of probable cause in prosecuting the criminal charges
against the Plaintiff. Because at the initiation of the criminal
case against him a Puerto Rico court had found probable cause to
charge him, Aponte-Hernández attempted to show that the defendants
knowingly presented false or tainted evidence at the probable cause
hearing to secure this finding.
The main evidence Plaintiff presented in support of his
claim was as follows. Plaintiff’s former attorney testified that
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one of the original prosecutors (who was replaced by the
defendants) told him that there was no evidence against Aponte-
Hernández, but to avoid prosecution, Aponte-Hernández would have to
provide evidence linking other officials to the real estate deal
under investigation. Plaintiff also asserted that the prosecutors’
malice was demonstrated by the fact that the charging document,
prepared by the defendants, accused him of “unlawful, willful,
malicious, criminal and intentional” conduct, while, as Cruz-Vélez
admitted on cross-examination, the law required a showing of only
negligence on his part to sustain a criminal conviction. Plaintiff
relied also on Cruz-Vélez’s admission that she introduced a “draft”
of an expert report at the probable cause hearing to support the
argument that the real estate in question had been appraised at an
inflated value, and that she introduced a document regarding the
initial offer to sell the real estate in question, three pages of
which had not been faxed to the OMB at the time. Finally,
Plaintiff relied on the testimony of his former subordinate
Emmanuelli, to the effect that he felt threatened and harassed by
the prosecutors when they interviewed him, and that this caused him
to sign an immunity agreement and alter his testimony. Plaintiff
suggests that this evidence was uncontroverted at trial, and
overwhelmingly demonstrated the defendants’ malice.
In fact, however, this evidence was controverted through
the direct testimony of Cruz-Vélez and through cross-examination of
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Plaintiff’s witnesses. In her testimony, Cruz-Vélez offered
alternative explanations for the actions that Plaintiff
characterized as malicious and fraudulent. For example, Cruz-Vélez
testified that the phrase “unlawful, willful, malicious, criminal
and intentional” in the charging document was pro forma language
conventionally used for accusations filed in state court and did
not manifest a desire on her part to smear the plaintiff. As for
the prior prosecutor’s comments to Aponte-Hernández’s former
counsel, she testified that she was unaware of them, and that, in
any event, her predecessor had said nothing of the kind to her. In
addition she testified that if any of the evidence she introduced
at the probable cause hearing was questionable, she had presented
it innocently, and without malice or intent to deceive. Finally,
Cruz-Vélez emphasized that the decision to prosecute was consistent
with the findings of the Blue Ribbon Commission and the Department
of Justice. And as for the testimony of Emmanuelli, he
acknowledged on cross-examination by the defendants that the only
alterations to his testimony suggested by the prosecutors were
stylistic rather than substantive, and confirmed that the testimony
he gave in the criminal proceeding against Aponte-Hernández was
true.
Accordingly, all of Plaintiff’s evidence of malice and
fraud on the part of the defendants was controverted. With
evidence on both sides of the crucial issue of the defendants’
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malice, the jury could properly have credited Cruz-Vélez’s
testimony. The jury could also have weighed the conflicting
evidence and concluded that Aponte-Hernández, who had the burden of
proof, failed to prove malice or a lack of probable cause by a
preponderance of the evidence.
In short, the evidence was disputed; it was not
“grotesquely lopsided” in favor of Aponte-Hernández. Freeman, 865
F.2d at 1334. In these circumstances, it was reasonable for the
jury to find in favor of the defendants, and the trial judge acted
well within his discretion in denying Plaintiff’s motion for a new
trial.
In support of his claim that the district judge abused
his discretion in declining to grant a new trial, Plaintiff points
to the trial judge’s own statements expressing his opinion that the
prosecution was malicious. The problem with Plaintiff’s reliance
on the trial judge’s remarks is that, in denying Plaintiff’s motion
for a new trial, the trial judge recognized that conflicting
evidence, and observed that the jury’s verdict was reasonably
supported by the evidence. In light of the disputed evidence, the
trial judge and the jury might well have credited, and discredited,
different versions of the contested facts and drawn different, but
equally permissible, inferences from the facts. See Freeman, 865
F.2d at 1334. After stating his view that the Plaintiff had been
the victim of malicious prosecution, the judge added that,
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notwithstanding his personal opinion, the case was for the jury to
decide.
There was evidence which, if credited by the jury,
supported a verdict in the defendants’ favor. The evidence was not
“grotesquely lopsided.” Id. Accordingly, the trial court did not
abuse its discretion in refusing to set aside the jury verdict and
grant a new trial.
CONCLUSION
For the foregoing reasons, the judgment of the district
court is AFFIRMED.
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