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 PérezSosa, Assistant United States Attorney, Chief, Appellate Division,

were on brief for appellees.

August 21, 2008
 In 2003, the relevant functions of the INS were transferred to 1

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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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 INS and a number of its officers 1

(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.
 According to González's testimony, at a certain point in their 2

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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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. Thereafter, she 2

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
 González originally made two other claims that she did not 3

ultimately pursue below and that are not at issue on appeal.

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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. Specifically, she 3

averred that Núñez and his colleagues improperly used their
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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) ("GonzálezRucci 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 NoguerasCartagena 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
 With respect to the coaching questionnaire, the court remarked 4

that it "certainly dissipate[d] any doubt concerning the legitimacy

of the criminal charges leveled against plaintiff."

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found that the evidence gathered in these searches -- especially

the coaching questionnaire -- established adequate probable cause 4

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.
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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.