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).

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-
-2-

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

and Germán A. Rieckehoff, Assistant United States Attorney, were on

brief for appellees.

March 1, 2010
 The facts are drawn from the parties' statements of material 1

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).

-3-

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 drugrelated 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
-4-

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
-5-

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
-6-

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
-7-

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
-8-

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
-9-

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,
 Pursuant to the Supreme Court's decision in Pearson, we now 2

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 newlyadopted 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").

-10-

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. Under this three-pronged mode of analysis, we must 2

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.
-11-

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. MartínezRodríguez 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 drugrelated 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
-12-

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
 The district court indicated that Martínez-Rodríguez never filed 3

the transcript of Quiñones's grand jury testimony. MartínezRodríguez 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 MartínezRodríguez'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.

-13-

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,
-14-

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, LópezLópez, 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
-15-

unwitting bystander or that he was innocently escorting LópezLópez. 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 LópezLópez'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
-16-

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
-17-

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 MartínezRodríguez 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.