Hernandez-Cuevas v. Taylor

United States Court of Appeals
For the First Circuit

No. 14-2247

CARLOS D. HERNANDEZ-CUEVAS,

Plaintiff, Appellant,

v.

WILLIAM TAYLOR; STEVEN W. MARTZ,

Defendants, Appellees.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO

[Hon. Camille L. Vélez-Rivé, U.S. Magistrate Judge]

Before

Torruella, Lipez, and Thompson,
Circuit Judges.

Pedro R. Vázquez, III, with whom Jose F. Quetglas Jordan and
Quetglas Law Offices were on brief, for appellant.
Leah Brownlee Taylor, Trial Attorney, with whom Benjamin C.
Mizer, Principal Deputy Assistant Attorney General, Civil
Division, Rosa Emilia Rodríguez-Vélez, United States Attorney,
Rupa Bhattacharyya, Director, Torts Branch, Civil Division, and
Lisa Bhatia, Assistant United States Attorney, were on brief, for
appellees.

September 9, 2016
 LIPEZ, Circuit Judge. We revisit here appellant Carlos

Hernandez-Cuevas's ("Hernandez") Fourth Amendment claim of

malicious prosecution, actionable under Bivens v. Six Unknown

Named Agents of Federal Bureau of Narcotics, 403 U.S. 388 (1971).1

We first encountered Hernandez's case when defendants William

Taylor and Steven Martz -- both FBI special agents ("SAs") --

brought an interlocutory appeal challenging the district court's

denial of qualified immunity. See Hernandez I, 723 F.3d at 96.

We affirmed, concluding that the facts alleged in Hernandez's

complaint, viewed in the light most favorable to him, stated a

plausible claim that Taylor and Martz violated Hernandez's "Fourth

Amendment right to be free from seizure but upon probable cause."

Id. at 102, 105. The case returned to the district court for

trial. After Hernandez presented his evidence, the court granted

Taylor and Martz's motion for judgment as a matter of law and

dismissed the case with prejudice. We agree that a reasonable

jury would not have a legally sufficient evidentiary basis to find

for Hernandez, and we detect no other legal error in the district

court's decision. We therefore affirm.

1 "A Bivens action is a civil action brought against agents
of the United States . . . . 'This implied cause of action is the
federal analog to § 1983 suits against state officials.'"
Hernandez-Cuevas v. Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013)
("Hernandez I") (quoting Soto–Torres v. Fraticelli, 654 F.3d 153,
158 (1st Cir. 2011)).

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 I.

A. Factual Background

In Hernandez I -- a challenge to the district court's

denial of qualified immunity -- we recounted the facts as presented

in Hernandez's complaint and the documents it incorporated. 723

F.3d at 94. Here, on appeal from the district court's judgment as

a matter of law, we recount the facts based on "the evidence and

reasonable inferences drawn from the evidence," in the light most

favorable to Hernandez, the nonmoving party.2 Malone v. Lockheed

Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010) (quoting Espada v.

Lugo, 312 F.3d 1, 2 (1st Cir. 2002)); see also J.R. v. Gloria, 593

F.3d 73, 76 (1st Cir. 2010).

1. The Transaction

In 2003, the FBI began a multi-year investigation into

an international drug and money laundering scheme that spanned New

Jersey, New York, Puerto Rico, and Colombia. Agents from FBI San

Juan and FBI Newark -- including SAs Taylor and Martz --

participated in the investigation, known as "Para Cash." Through

the course of the investigation, SAs Taylor and Martz, along with

SA Luis Rodriguez, worked with a confidential informant

("informant") to infiltrate the drug ring. SAs Taylor, Martz, and

2Specifically, we draw the facts from the parties'
stipulations, the evidence presented at trial, and the joint
appendix submitted by the parties on appeal.

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Rodriguez met in person and spoke on the phone with the informant

multiple times.

In July 2004, Rodriguez, Martz, and the informant

traveled to Puerto Rico for an arranged pick-up of approximately

$322,000 from an unknown courier. Taylor was not in Puerto Rico

at the time of the scheduled exchange. On July 20, 2004, the

informant met the courier at a supermarket parking lot in Isla

Verde, Carolina. Throughout the transaction, Rodriguez and Martz

were hidden from view, and SA Regino Chavez observed the

transaction from a distance of "fifty or more meters away . . .

without the aid of lenses, glasses or binoculars."

The unidentified courier arrived alone at the meeting,

driving a gray Mitsubishi Montero. The courier and the informant,

who was wearing a body wire, then had a conversation about the

transaction but did not exchange the money. The courier drove

away, and Rodriguez and Martz debriefed the informant, who informed

the SAs that the courier said he would return in a half hour.

About a half hour later, the courier returned, but this time he

was the passenger in a white Jeep Cherokee,3 driven by another

3
The driver of the Mitsubishi Montero and the passenger in
the Jeep Cherokee are referred to as "UNSUB #1" and "UNSUB #3,"
respectively, in the FBI's surveillance report of the transaction.
However, at trial, Taylor testified that the labels "UNSUB #1" and
"UNSUB #3" referred to the same individual -- referred to herein
as the "courier" -- and that he confirmed this based on the
recorded conversation obtained from the informant's body wire.
Martz also testified that the courier from the first vehicle was

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unidentified individual ("the driver"). The Cherokee pulled up

alongside the informant's car so that the passenger window of the

Cherokee was next to the driver's side of the informant's car.

After the courier and the informant spoke from their cars, the

courier and the driver of the Cherokee got out of their vehicle

and at least one of them placed two bags of money in the trunk of

the informant's car. The driver and courier then returned to their

vehicle and drove away.

FBI surveillance agents followed the Jeep Cherokee and

saw the courier exit the car at 1655 Santa Ana Street and walk

into the porch area of the residence. The courier was not arrested

at that time. The Cherokee then continued onto a highway, after

which a marked unit of the Puerto Rico Police Department conducted

a traffic stop of the Cherokee, but the officers did not arrest

the driver.

2. Post-Transaction Reports and Surveillance

Martz testified that he debriefed the informant

following the transaction and took handwritten notes of the

exchange on July 20, 2004 -- the day of the transaction. The

informant described the courier as "thirty-nine to forty-one (39-

41) [years old], black, . . . [with a] big stomach, fat, wearing

a blue shirt," and "Puerto Rican." In Martz's typed FBI report,

the same individual as the passenger in the second vehicle.
Hernandez offered no evidence to rebut this testimony.

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which was transcribed on August 10, the courier is described as "a

fat, dark skin, Puerto Rican male with a big stomach, approximately

39-41 years of age, 5'10" tall wearing a light blue shirt." Based

on his surveillance of the transaction, SA Chavez also filed an

FBI report that was dictated on July 30 -- ten days after the

transaction -- and transcribed on August 1. SA Chavez's

surveillance report described the courier as "[m]ale," "[b]lack,"

"5'7"," "[h]eavy," in his "[l]ate [f]ifties," and wearing a "[b]lue

shirt and brown pants."

Nearly six months later, at the request of FBI Newark,

FBI San Juan conducted "spot check" surveillance of 1655 Santa Ana

Street -- the residence where the driver dropped off the

courier –- to identify residents of the address. According to the

FBI report completed by SA Madeline Albrecht on February 22, 2005,

vehicle registration information and/or utilities checks linked

five individuals to the address.4 Hernandez, whose gray Infiniti

was parked in front of the residence and registered to its address,

was the only male identified in SA Albrecht's report. Hernandez's

car was not connected to the July 20 transaction.

On March 2, 2005, FBI Newark requested that FBI San Juan

obtain a photograph of Hernandez and additional information about

4Hernandez testified that the dwelling was "divided into some
seven (7) or eight (8) rooms and those rooms would be rented
separately to different persons."

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him. The Department of Motor Vehicles ("DMV") provided a photo of

Hernandez from the shoulders up and a description of him as male,

5'11", 40 years of age, 185 pounds, and a "medio marrón"

complexion. For reader ease, the multiple FBI-recorded

descriptions of the courier and the DMV description of Hernandez

are provided in the chart below.

SA Martz - SA Martz - FBI SA Chavez - FBI DMV-
informant Report, Report, provided
debrief, July transcribed dictated July description
20, 2004 August 10, 2004 30, 2004, of
transcribed Hernandez
August 1, 2004
Male Male Male
Black Black Dark Skin "[M]edio
marrón"
Puerto Rican Puerto Rican
Heavy set; big Fat; big stomach Heavy 185 pounds
stomach
~39-41 years Approximately Late Fifties 40 years
old 39-41 years old old
5'10" 5'7" 5'11"
Blue shirt Wearing a light Wearing a blue
blue shirt shirt and brown
pants

3. The Photographic Array

After receiving the photograph and DMV description of

Hernandez, SA Martz gave the photo to FBI Newark's photo lab

specialists to assemble a photographic array. Martz testified

that he emailed the photo array to the informant, who was in

Colombia at the time, on May 25, 2005 -- nearly ten months after

the transaction took place. Martz and Taylor spoke with the

informant over the phone the day after emailing him the photo

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array. When asked at trial who was physically with the informant

during the identification, both Taylor and Martz testified that

they believed him to be alone.

Over the phone, the informant identified the photo of

Hernandez as the courier. Martz recalled asking the informant "if

he was sure, and he said he was positive." Martz asked the

informant "why he was positive and he said because he had met the

individual twice" on the day of the transaction -- once when the

courier came in the Mitsubishi Montero and the second time when he

came in the Jeep Cherokee. In his handwritten notes detailing the

call, Martz wrote that the informant was "very sure[,]

positive[,] . . . saw 2x."

4. The Government's Arrest, Detainment & Release of
Hernandez

On the day the informant identified Hernandez as the

courier, Taylor ran a background check on Hernandez that "showed

there was no prior criminal record" linked to him. That same day,

Taylor drafted an FBI report, which named Carlos D. Hernandez

Cuevas as a courier in the Para Cash transaction.

Subsequently, Taylor assembled the materials relating to

the investigation, including recordings and transcripts, and sent

the information to the U.S. Attorney's Office in Newark, New

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Jersey.5 Assistant U.S. Attorney ("AUSA") Robert Frazer was

assigned to prosecute cases arising out of the Para Cash

investigation. The parties stipulated that "the decision to charge

Hern[a]ndez with criminal activity was made exclusively by the

Newark, New Jersey U.S. Attorney's Office."

In support of the criminal complaint filed against

Hernandez, AUSA Frazer drafted an affidavit, which SA Taylor then

signed. In the affidavit, Taylor attested that "[o]n or about

July 20, 2004, in Puerto Rico, defendant CARLOS HERNANDEZ

CUEVAS . . . delivered approximately $321,956 in United States

currency, which was the proceeds of narcotics trafficking, to [the

informant]." To corroborate his identification of Hernandez as

the courier, Taylor testified that he considered SA Chavez's

surveillance report, as well as the body wire transcripts, the

debriefing of the informant, and the spot surveillance of the

residence at 1655 Santa Ana Street, among other things.

AUSA Frazer filed a complaint and warrant request -- with

Taylor's affidavit attached -- for Hernandez's arrest, and a

magistrate judge issued the warrant. Pursuant to the warrant, the

FBI arrested Hernandez at his home on December 3, 2007. On

December 6, Hernandez appeared before a federal magistrate judge

in Puerto Rico. At that point, Hernandez's lawyer presented to

5
Martz's involvement in Para Cash ceased by September 2005;
Taylor, however, remained assigned to the investigation.

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the court Hernandez's passport, "to show his presence in the

Dominican Republic around the time period of the transaction."

Nevertheless, Hernandez was not granted bail or released.

Following his arrest, Hernandez was held in "federal

jail" in Puerto Rico for over two months, and then transferred to

a facility in Miami for two or three days, to a facility in Oklahoma

for one day, and finally to a facility in New Jersey for his court

appearance in the District of New Jersey on February 29, 2008. At

the court appearance, AUSA Frazer asked that Hernandez be released

because the government "need[ed] to do some more investigation to

confirm what . . . is a serious doubt as to . . . the correct

identity of the perpetrator in this case." The court agreed on

the condition that Hernandez surrender his passport. Later that

day, Hernandez was released on his own recognizance. Two months

later, the U.S. Attorney for the District of New Jersey dismissed

the complaint against Hernandez.

5. Hernandez's Background & Whereabouts in July 2004

Hernandez, who was born in the Dominican Republic, moved

to Puerto Rico in 1992 to take a course organized for track and

field trainers by the International Olympic Committee. When he

moved to Puerto Rico, he also was an athlete member of the

Dominican Republic's National Team. After holding jobs in the

construction and restaurant industries, he was appointed vice

president of the Track and Field Dominican Federation abroad as

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well as Sports Director for the Dominican Republic, serving from

the country's consulate in Puerto Rico.

According to Hernandez, by 2004, he was working on a

television program called "Evening Express." On July 8, 2004,

twelve days before the Para Cash transaction, Hernandez traveled

by ferry to the Dominican Republic to cover a Central American

basketball tournament for Evening Express and for the Central

American Games. He also had been selected as a delegate for the

Dominican Republic at the 2004 Olympic Games in Athens, Greece.

Hernandez testified that he was in the Dominican Republic on July

20, 2004 -- the date on which the Para Cash transaction took place

in Puerto Rico -- and that he left on August 13, 2004, when he

flew to Greece.6

B. Hernandez I

Hernandez filed suit against Martz and Taylor on March

2, 2009, alleging that they were responsible for his being held in

federal custody for three months without probable cause.

Hernandez I, 723 F.3d at 95–96. Taylor and Martz filed a motion

to dismiss the claims against them, arguing that they were entitled

6Over defendants' objection, the district court admitted
Hernandez's passport into evidence, "subject to the translation
being submitted properly." On appeal, defendants argue that "the
passport was not translated until this appeal and is untimely."
However, we need not consider the admissibility of Hernandez's
passport because we recite above Hernandez's testimony, presented
in the light most favorable to him.

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to qualified immunity. Id. at 96. The district court denied the

motion, Taylor and Martz filed an interlocutory appeal, and we

affirmed the district court's judgment. Id. at 93, 96.

In affirming the denial of qualified immunity, we

concluded "that the Fourth Amendment protection against seizure

but upon probable cause does not end when an arrestee becomes held

pursuant to legal process."7 Id. at 99–100. Prior to Hernandez I,

our circuit had not explicitly recognized a Fourth Amendment

protection that extends beyond unlawful arrest to hold law

enforcement officials accountable for malicious prosecution. Id.

at 97. Ordinarily, "the neutral magistrate's determination that

probable cause exists for the individual's arrest is an intervening

act that could disrupt any argument that the defendant officer had

caused the continued unlawful seizure." Id. at 100. In order to

"overcome this causation problem" and show that law enforcement

officers had effected a malicious prosecution, we held that the

7 When analyzing an appeal from a denial of qualified
immunity, we consider whether "(1) the facts alleged show the
defendants' conduct violated a constitutional right, and (2) the
contours of this right are 'clearly established' under then-
existing law so that a reasonable officer would have known that
his conduct was unlawful." Hernandez I, 723 F.3d at 97 (quoting
Santana v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003)). However,
in Hernandez I, the appellees declined to address the "clearly
established" prong of the qualified immunity analysis. Id. We
therefore limited our analysis to whether Hernandez's claim fails
under the first prong. Id.

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plaintiff had to demonstrate that the officers "were responsible

for his continued, unreasonable pretrial detention." Id.

Further, we found that, to succeed, a Bivens action

claiming malicious prosecution in violation of the Fourth

Amendment must establish the elements of a purely constitutional

claim rather than the elements of a blended constitutional/common

law claim, which requires a separate showing of subjective malice.

Id. at 99–100. However, we noted that although "we adopt[ed] a

purely constitutional rather than a blended constitutional/common

law approach, we believe that the practical consequences of this

choice are less significant than they initially appear." Id. at

101.

We reached this conclusion based on the Supreme Court's

decision in Franks v. Delaware, which examined whether a criminal

defendant may "challenge the truthfulness of factual statements

made in an affidavit supporting [a] warrant." 438 U.S. 154, 155

(1978). The Court held that, under the Fourth Amendment, items

discovered pursuant to a search warrant may be suppressed if the

defendant can show that law enforcement officers deliberately or

recklessly included in the affidavit false statements that were

necessary to the finding of probable cause. Id. at 155–56.

Applying this rule in the civil context of a Fourth Amendment

malicious prosecution claim, we concluded that the standard

announced in Franks -- requiring the plaintiff to demonstrate that

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statements by law enforcement officers "amounted to 'deliberate

falsehood or . . . reckless disregard for the truth,'" Hernandez I,

723 F.3d at 102 (quoting Franks, 438 U.S. at 171) -- described

"reprehensible behavior [that] seems indistinguishable from the

common law element of malice," id. In other words, a plaintiff

pursuing a Fourth Amendment malicious prosecution claim must

demonstrate that "[law enforcement] officers formulated evidence

essential to the probable cause determination with a mental state

similar to common law malice." Id. at 101.

Having recognized a cognizable legal claim and what

plaintiffs must demonstrate to establish it, we reviewed

Hernandez's complaint and determined that he had alleged a

plausible claim that Taylor and Martz caused him to be held in

federal custody without probable cause. Id. at 105. We thus

remanded the case to the district court for further proceedings.

C. Post-Hernandez I District Court Proceedings

In district court, the parties began discovery, and

Martz and Taylor moved for summary judgment. The magistrate judge

denied the defendants' motion, and the case went to trial.8 After

the testimony of only three witnesses -- Hernandez, Martz, and

Taylor -- Hernandez rested his case. The defendants then moved

for judgment as a matter of law, under Federal Rule of Civil

8Both parties consented to have a magistrate judge conduct
proceedings and enter judgment in this case.

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Procedure 50(a). A court may grant a motion for judgement as a

matter of law "[i]f a party has been fully heard on an issue during

a jury trial and the court finds that a reasonable jury would not

have a legally sufficient evidentiary basis to find for the party

on that issue." Fed. R. Civ. P. 50(a)(1).

The magistrate judge granted the motion, concluding that

"Plaintiff Hern[a]ndez-Cuevas ha[d] failed to prove that

Defendants Taylor and Martz caused a seizure of [Hernandez]

pursuant to a legal process unsupported by probable cause."

Concerning the first element of a malicious prosecution claim,

causation, the magistrate judge found that Hernandez had not

presented any evidence to prove that Taylor and Martz "tainted or

arranged" the photo array presented to the informant or that Taylor

made statements in his affidavit that "amounted to 'deliberate

falsehood or reckless disregard for the truth.'" (quoting Franks,

438 U.S. at 171). The magistrate judge also addressed the civil

conspiracy alleged in Hernandez's complaint and concluded that

"[n]o evidence was presented of an agreement between agents Taylor

and Martz to inflict a wrong against or injury upon [Hernandez]."

Hernandez's timely appeal followed.

II.

We review de novo a district court's grant of a Rule

50(a) motion for judgment as a matter of law, taking the evidence

in the light most favorable to the nonmovant. See Cham v. Station

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Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2012). We review

evidentiary rulings for abuse of discretion if the objecting party

has preserved the issue. United States v. Peña-Santo, 809 F.3d

686, 694 (1st Cir. 2015).

A. Fourth Amendment Malicious Prosecution Claim

Hernandez argues that he provided sufficient evidence

for a reasonable jury to conclude that he established malicious

prosecution in violation of the Fourth Amendment. In order to

establish such a violation, Hernandez had to demonstrate that

Taylor and Martz "(1) caused (2) a seizure of [Hernandez] pursuant

to legal process unsupported by probable cause, and (3) criminal

proceedings terminated in [Hernandez's] favor." Hernandez I, 723

F.3d at 101 (quoting Evans v. Chalmers, 703 F.3d 636, 647 (4th

Cir. 2012)).

To satisfy the first element, causation, Hernandez was

required to "demonstrate that law enforcement officers were

responsible for his continued, unreasonable pretrial detention."

Id. at 100. Such responsibility may be established by showing

that the officers "ma[d]e, influence[d], or participate[d] in the

decision to prosecute," Sykes v. Anderson, 625 F.3d 294, 311 (6th

Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir.

2007)) (alterations in original), by, for example, "(1) 'l[ying]

to or misle[ading] the prosecutors'; (2) 'fail[ing] to disclose

exculpatory evidence'; or (3) 'unduly pressur[ing] the prosecutor

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to seek the indictment,'" Hernandez I, 723 F.3d at 100 (quoting

Evans, 703 F.3d at 647–48). Thus, when establishing causation,

the plaintiff must demonstrate that the actions or statements of

law enforcement officers "amounted to 'deliberate falsehood

or . . . reckless disregard for the truth.'" Hernandez I, 723

F.3d at 102 (quoting Franks, 438 U.S. at 171).

Hernandez argues on appeal that the photo array "created

at the direction of Martz," and "Taylor's fabricated testimony" in

his affidavit, provided "sufficient evidence . . . to indicate

that Defendants made representations that amounted to deliberate

falsehoods or reckless disregard for the truth," and thus caused

his seizure without probable cause. We take these two allegations

of wrongdoing in turn.

1. The Photographic Array

As the parties stipulated before trial, Martz provided

the DMV photo of Hernandez to FBI Newark's photo lab, and,

"[c]onsistent with FBI policy, the FBI lab created a photo array

which contained Hernandez's photograph, along with five other

similar looking individuals." In Hernandez I, we concluded that

[a]lthough the complaint does not specify how
the co-conspirators tainted the photo array,
Hernandez-Cuevas has pled sufficient facts to
support a reasonable inference that something
was amiss. Specifically, Hernandez-Cuevas has
alleged that rather than selecting a
photograph of someone matching the description
of [the courier] -- short, stocky, and nearly
sixty -- [the informant] picked a photograph

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 of Hernandez-Cuevas, who was tall, thin, and
only forty.

723 F.3d at 104.

At trial, however, Hernandez did not present any

evidence to support the allegation that the array was tainted. To

the contrary, as we now know, SA Chavez's surveillance

report -- which describes the courier as "short, stocky, and nearly

sixty," and does not closely resemble Hernandez, id. -- was not

the only available description of the courier. The record

established that the DMV description of Hernandez as forty years

old, 5'11", of "medio marrón" complexion, and 185 pounds, matched,

at least in part, the informant's description of the courier as

approximately forty years old, 5'10",9 black, and having a big

stomach. As the parties stipulated before trial, "FBI agents

routinely rely on descriptions provided by witnesses, including

[confidential informants], who have face to face interactions with

the subject of investigation, given their opportunity to observe

the physical characteristics of the subjects."

Furthermore, the courier was last seen at 1655 Santa Ana

Street, and SA Albrecht's report identified Hernandez as the only

9We note that the courier's height was included in the August
10 FBI report but not in the informant's description of the courier
on July 20 -- the date of the transaction. However, the absence
of the courier's height from the initial description does not,
without more, support an inference that the height was fabricated
in the August 10 report.

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male officially associated with that address. After receiving the

DMV description and the photo of Hernandez from FBI San Juan, Martz

testified that he "believed we had enough evidence, based on the

investigation." Hernandez presented no evidence at trial to rebut

this testimony, to establish that Martz tainted the photo array,

or to establish that Martz and Taylor worked in concert with the

informant to identify Hernandez.

2. Taylor's Affidavit

As for proving that Taylor "either knowingly or with

reckless disregard for the truth made [false] sworn statements in

a warrant affidavit" that Hernandez was the courier, Hernandez's

case again fails. Hernandez I, 723 F.3d at 104. When initially

questioned by Hernandez's counsel at trial, Taylor testified that

he "gave consideration to" SA Chavez's surveillance report

describing the courier as in his late fifties, 5'7", and heavy,

but that he also looked to "the body wire [recording], the

debriefing of the [informant]," as well as "the utilities check,

[and] the other spot surveillance" to corroborate the statement

made in his affidavit identifying Hernandez as the courier.

When cross-examined by his own attorney, Taylor stated

that he believed that the description of the courier provided by

the informant "matched remarkably accurately" the DMV description

of Hernandez. Taylor testified that his statement in his affidavit

as to his knowledge of the facts of the investigation was "[o]ne

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hundred percent" truthful. On re-direct, Hernandez's attorney

questioned Taylor about the August 10 transcription date of Martz's

FBI report (detailing the informant's description of the courier)

and whether Taylor was in Puerto Rico on the date of the

transaction.10 Neither line of questioning, however, undermined

his previous testimony or provided a sufficient basis for a jury

to conclude that Taylor deliberately or recklessly included false

statements in his affidavit.

In light of Taylor's unrebutted testimony, Hernandez did

not establish "a legally sufficient evidentiary basis," Fed. R.

Civ. P. 50(a), for a reasonable jury to conclude that Taylor "made

statements in the warrant affidavit which amounted to 'deliberate

falsehood or . . . reckless disregard for the truth.'"

Hernandez I, 723 F.3d at 102 (quoting Franks, 438 U.S. at 171)

(omission in original).

In sum, although we concluded in Hernandez I that

Hernandez's complaint provided sufficiently plausible allegations

to make out a malicious prosecution Bivens claim, 723 F.3d 102–

05, the evidence that Hernandez presented at trial did not bear

out his original allegations with respect to either Martz or

Taylor. To the contrary, the limited evidence presented at trial

revealed that the confluence of matching physical features and

10
The parties stipulated before trial that Taylor was not in
Puerto Rico on the date of the transaction.

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residence led the agents to Hernandez. Hence, the record is

insufficient to permit the jury to conclude "that law enforcement

officers were responsible for [Hernandez's] continued,

unreasonable pretrial detention," as required by the causation

element of a Fourth Amendment malicious prosecution claim. Id. at

100. Hence, we need not examine the remaining two elements of

Hernandez's claim.11

B. The Reckless Disregard Standard

Hernandez also argues that the magistrate judge did not

correctly apply the intent standard that we announced in

Hernandez I. The magistrate judge found that "the evidence does

not support the claims that agent Taylor made statements in the

affidavit, in support of the complaint and arrest warrant against

Plaintiff Hern[a]ndez-Cuevas, which amounted to 'deliberate

falsehood or reckless disregard for the truth'" (quoting Franks,

11
Hernandez's civil conspiracy claim also fails. As the
magistrate judge noted in her order, Hernandez alleged a civil
conspiracy "in the complaint but not as a separate cause of
action." We have stated that, "[i]n order to make out an
actionable conspiracy . . . a plaintiff has to prove not only a
conspiratorial agreement but also an actual abridgment of some
federally-secured right." Nieves v. McSweeney, 241 F.3d 46, 53
(1st Cir. 2001) (emphasis added). Hernandez did not present even
circumstantial evidence that Martz and Taylor entered into a
conspiratorial agreement. See Earle v. Benoit, 850 F.2d 836, 845
(1st Cir. 1988) (finding error in the district court's directed
verdict where "there was sufficient circumstantial evidence . . .
for a reasonable jury to have inferred a conspiracy"). Moreover,
as we just concluded, he failed to establish a violation of his
"Fourth Amendment right to be free from malicious prosecution."
Hernandez I, 723 F.3d at 99.

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438 U.S. at 171). Hernandez argues that the magistrate judge

"injected into the analysis 'malice' which generally denotes

subjective criteria," and therefore did not follow the law of the

case doctrine, which "posits that when a court decides upon a rule

of law, that decision should continue to govern the same issues in

subsequent stages in the same case." Arizona v. California, 460

U.S. 605, 618 (1983). We disagree. Simply put, the magistrate

judge accurately quoted language from Hernandez I and Franks, and

she properly assessed the requisite mental state.

C. Evidentiary Rulings

Hernandez argues that the magistrate judge erred when

she precluded him from using the defendants' documentary evidence.

The magistrate judge's pretrial procedure order required that

"[a]ll exhibits shall be pre-marked and exchanged prior to trial.

It shall be the responsibility of counsel, at least three (3)

working days prior to the trial, to make appropriate arrangements

with the courtroom deputy clerk in this respect." At multiple

points during the trial, the magistrate judge did not allow

documents into evidence that Hernandez did not list as exhibits

for trial, in accordance with the pretrial order. The magistrate

judge emphasized that Hernandez's failure to include the documents

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in the list of exhibits to be introduced at trial was "not a

technicality."

"[A] district court has broad discretion to preserve the

integrity of a pretrial order," and "an appellate court generally

should not interfere with a trial court's decision to admit or

exclude evidence based on its interpretation of its own pretrial

order." Alberty-Veléz v. Corporación De Puerto Rico Para La

Difusión Pública, 242 F.3d 418, 423 (1st Cir. 2001). On appeal,

Hernandez does not identify the specific documents that the

magistrate judge excluded or how the magistrate judge's ruling

prejudiced him at trial. He provides only a few scant citations

to the trial transcript, leaving us to discern the documents

excluded and the effect of their exclusion. Without more from

Hernandez, we have no justification to disturb the magistrate

judge's enforcement of her own pretrial order.12 Moreover, even

if the magistrate judge had erred, the one excluded document that

we can discern from Hernandez's trial transcript citations --

Martz's handwritten notes of the informant's debriefing -- only

serves to further undermine Hernandez's case. Hence, even assuming

error on the magistrate judge's part, such error would be harmless.

12 Hernandez asserts that the judge precluded the evidence in
spite of the parties' agreement under the joint proposed pretrial
order to "use evidence announced by the other party upon good cause
shown." Hernandez, however, has not argued that he provided a
showing of good cause to the magistrate judge, nor has he offered
such a showing on appeal.

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Affirmed.

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