          United States Court of Appeals
                     For the First Circuit

No. 13–2340

    JOSÉ LUIS DÍAZ-COLÓN, on his own behalf and on behalf of his
      minor son J.L.D.R.; LINDA DELGADO, on behalf of her minor
   daughter D.M.D.D.; ZORAIDA COLÓN-CARTAGENA; PEDRO DÍAZ; PEDRO
     LUIS DÍAZ-COLÓN; YAHAIRA ENID DÍAZ-COLÓN; LOURDES DE JESÚS-
      VELÁZQUEZ, on her own and on behalf of her minor children
J.L.S.D.; J.L.L.S.D., on their own and as legal heirs of Leopoldo
      Sanabria-Díaz; L.S.D., on their own and as legal heirs of
       Leopoldo Sanabria-Díaz; ALBAELA DÍAZ-CARABALLO; LEONARDO
SANABRIA-DÍAZ; JENNIFER PIRIS-JUSINO, on her own and on behalf of
        her minor daughter G.R.P.; LUCY GUZMÁN-BORRERO; CARMELO
  VELÁZQUEZ-COLÓN; CARMELO COLÓN-RIVERA; ORLANDO COLÓN-VELÁZQUEZ;
   ORLANDO RAMOS-FÉLIX; JOSEFA FÉLIX; JOSÉ ANTONIO FÉLIX; ELISEO
  RAMOS-FÉLIX; JUAN MARCOS MERCED-GÓMEZ; HÉCTOR MERCED-RODRÍGUEZ;
    MARÍA E. GÓMEZ-VELÁZQUEZ; LEOPOLDO SANABRIA-MORALES; MARIBEL
         ORTIZ-VÁZQUEZ, on behalf of minor, J.M.S.O; ANA LUISA
  DÍAZ-RIVERA; YOLANDA ORTIZ-DÍAZ; EVELYN ORTIZ-DÍAZ; LUIS DANIEL
 ORTIZ-DÍAZ; DIGNO ORTIZ-DÍAZ; FRANCIS I. LÓPEZ-DÍAZ; CHELSEA LUZ
                   MERCED; HÉCTOR JULIO MERCED-GÓMEZ,

                     Plaintiffs, Appellees,

                               v.

       JOSÉ A. FUENTES-AGOSTINI; GABRIEL REDONDO; JUAN JOSÉ
     TOLEDO-BAYOUTH; JOSÉ CAPÓ; JOSÉ TOLEDO-BAYOUTH; FERNANDO
TOLEDO-BAYOUTH; PEDRO J. TOLEDO-BAYOUTH; ANÍBAL SOLIVAN-SOLIVAN;
   HÉCTOR TIRADO; DANIEL COLÓN; FRANCISCO BÁEZ-QUIÑONES; JESÚS
                          FIGUEROA-CRUZ,

                     Defendants, Appellants,

  PEDRO TOLEDO-DÁVILA; FNU CANDELARIA; ESTATE OF ULPIANO-CRESPO,
   comprised of unknown individuals K through S; JOSÉ FIGUEROA;
  ULPIANO CRESPO; ZOÉ DÍAZ-COLÓN; CONJUGAL PARTNERSHIP BÁEZ-DOE;
  CONJUGAL PARTNERSHIP CAPÓ-DOE; CONJUGAL PARTNERSHIP COLÓN-DOE;
CONJUGAL PARTNERSHIP DÍAZ-DOE; CONJUGAL PARTNERSHIP FIGUEROA-DOE;
       CONJUGAL PARTNERSHIP FUENTES-DOE; CONJUGAL PARTNERSHIP
      REDONDO-DOE; CONJUGAL PARTNERSHIP SOLIVAN-DOE; CONJUGAL
     PARTNERSHIP TIRADO-DOE; CONJUGAL PARTNERSHIP TOLEDO-DOE,

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

         [Hon. Francisco A. Besosa, U.S. District Judge]



                             Before

                 Torruella, Howard, and Kayatta,
                         Circuit Judges.



     Ivonne Cruz-Serrano, with whom Miguel A. Rangel Rosas and
Maymí, Rivera, LLC, were on brief, for appellants.
     Pedro R. Vázquez, III, with whom José F. Quetglas Jordán,
Quetglas Law, Osvaldo Pérez Marrero, and Osvaldo Pérez Marrero Law
Office, were on brief, for appellees.



                          May 18, 2015




                               -2-
            KAYATTA, Circuit Judge.          This lawsuit arises out of two

sets of wrongful murder convictions in Puerto Rico's courts.                   In

each murder trial, jurors convicted a group of individuals based in

large part on the testimony of a single witness, Zoé Díaz-Colón

("Díaz"). After one of the convicted individuals killed himself in

prison, Díaz came forward to recant her testimony, claiming that

law enforcement personnel had coerced and bribed her into giving

fabricated testimony.        After the Commonwealth courts subsequently

vacated the convictions, and all charges against them were dropped,

the wrongfully convicted individuals (and/or their heirs and family

members) filed these consolidated civil damages actions in federal

court against police officers and prosecutors involved in their

misbegotten prosecutions. Nine of those law enforcement defendants

(or their heirs) now appeal from the denial of their respective

motions   for   summary   judgment     based     on   absolute    or   qualified

immunities.     We reverse in part the denial of summary judgment for

assistant     district    attorney      Gabriel       Redondo-Miranda      ("ADA

Redondo"), but otherwise affirm the district court's rulings.

                               I.   Background

            Because   this    appeal    arises    from   the     denial   of   the

defendants' motions for summary judgment, we present the facts in

the light most favorable to the plaintiffs, accepting as true all

of the inferences the district court drew in the plaintiffs' favor.

Cady v. Walsh, 753 F.3d 348, 350 (1st Cir. 2014).              And because our


                                       -3-
review in this case is interlocutory, we train our focus on rulings

of law, rather than assessments of fact.       Id. at 358-59.

A.   Factual Background

          Puerto Rico police hired Díaz as a paid informant on

August 2, 1995.    The following day, Rafael Colomba was murdered in

Salinas, Puerto Rico.    More than two years later Antonio Peña was

murdered in Salinas on November 5, 1997.        Defendant police agent

Jesús Figueroa-Cruz ("Agent Figueroa")1 investigated the Colomba

murder, and defendant police agent Francisco Báez-Quiñones ("Agent

Báez")   led   the    investigation     into   Peña's   murder.    The

investigations stalled until June of 1998, when Díaz gave two sworn

statements at the Guayama police station claiming both that:

(1) she heard Orlando Ramos-Félix, Carmelo Vélazquez Colón, and

Leopoldo Sanabria-Díaz ("Sanabria") plan and later admit to the

Colomba murder; and (2) she also heard José Díaz-Colón, Héctor

Merced Gómez, and Manuel Ortiz ("Ortiz") plan and later admit to

the Peña murder.     Agent Figueroa and defendant assistant district

attorney José Capó ("ADA Capó") were present for the taking of

Díaz's statement on the Colomba murder.          ADA Redondo did not

participate in the investigation of either murder.




     1
       Jesús Figueroa-Cruz and Jesús Figueroa-de Jesús are listed
as separate defendants on the docket, but they are in fact the same
person. In his answer to the amended complaint, Agent Figueroa
clarified that his correct name is Jesús Figueroa-Cruz.

                                  -4-
            Díaz was the key prosecution witness at both murder

trials.2    No one told defense counsel during either trial that Díaz

had been a paid confidential informant for the police.      Based on

Díaz's testimony in the respective trials, both sets of plaintiffs

were convicted and sentenced to prison.      Ortiz committed suicide

soon after his conviction for the Peña murder in May of 1999.

After learning in 2001 of Ortiz's suicide, Díaz recanted, claiming

in a sworn declaration that her trial testimony against the

plaintiffs was fabricated.3

            Díaz's recantation led to motions from the four living

convicts for new criminal trials.        At the hearings on those

motions, Díaz testified that Agent Báez knew that she was a paid

informant, and that he coerced, bribed, and coached her into giving

the statements implicating plaintiffs in the Colomba or Peña

murders.4    Díaz testified that Agent Báez told her what to say,

familiarized her with the murder scenes and photographs of the

plaintiffs, and repeatedly met with her to rehearse her statements,


     2
       Díaz also testified for prosecutors in yet a third murder
trial against a criminal defendant who is not a plaintiff in this
case.
     3
      In 2003, after the Puerto Rico trial court denied his motion
for a new trial, Sanabria also committed suicide in prison.
     4
       We deny as moot plaintiffs' motion, opposed by defendants,
to file with this court a supplemental appendix containing the
excerpts of Díaz's transcribed testimony that plaintiffs relied on
in the district court to oppose summary judgment. See Fed. R. App.
P. 30(a)(2) ("Parts of the record may be relied on by the court or
the parties even though not included in the appendix.").

                                  -5-
which she memorized.          She claimed, too, that Agent Figueroa

attended some of these rehearsals.         Díaz further testified that

Agent Báez and a prosecutor5 offered her housing and custody of her

children in exchange for testimony consistent with her sworn

statements.     In addition, she testified that ADA Redondo offered

her a therapy machine for her asthma while she was staying in a

witness protection shelter during one of the trials in which she

testified falsely for the prosecution.

          In    2008,   the   Supreme   Court   of   Puerto   Rico    vacated

plaintiff Velázquez's conviction and granted a new trial on the

ground that the prosecutors had not timely disclosed exculpatory

evidence, including Díaz's contract as a paid informant. Pueblo v.

Velázquez-Colón, 174 D.P.R. 304 (2008).6          Shortly thereafter, the

government requested and the trial court ordered the dismissal of

the criminal charges against all of the plaintiffs.

B.   Procedural Background

          The plaintiffs associated with each group of wrongfully

convicted individuals commenced separate actions in federal court

against   the   same    set   of   defendants.7      The   district     court


     5
       That prosecutor has since died. The plaintiffs sued his
estate, but his heirs did not appear and are not appellants.
     6
       The parties submitted to the district court a certified
English translation of the Supreme Court of Puerto Rico opinion.
ECF No. 300-1.
     7
       The plaintiffs also sued Díaz, who did not answer or appear.
The district court entered a default against her in the first case,

                                    -6-
consolidated the two cases.       The plaintiffs asserted claims under

42 U.S.C. § 1983 for violations of the Fourth and Fourteenth

Amendments, and various constitutional and tort claims under Puerto

Rico law.    After the district court granted in part defendants'

motion to dismiss some of the claims, only Agent Báez, Agent

Figueroa, and ADA Redondo remained as targets of the federal

section 1983 claims (for malicious prosecution under the Fourth

Amendment and conspiracy to deprive plaintiffs of their rights

under federal law).       Diaz-Colon v. Toledo-Davila, 922 F. Supp. 2d

189, 209-10 (D.P.R. 2013).         State tort and vicarious liability

claims under Puerto Rico law remained against all of the defendants

who are parties to this appeal.8         Id.

            During discovery, plaintiffs scheduled Díaz's deposition

in Puerto Rico.      But Díaz fled Puerto Rico shortly before her

deposition because she allegedly received threats at her hotel.

Subsequent attempts to schedule her deposition by video failed.

            After   the   close   of   discovery,   defendants   moved   for

summary judgment on a variety of grounds, including that they were

entitled to qualified or absolute immunity and that there was



no. 09–1835, before the two cases were consolidated.
     8
      The defendants-appellants who face only state law claims are
former Secretary of Justice José Fuentes-Agostini (Puerto Rico's
equivalent of a state attorney general), ADA Capó, police captains
Aníbal Solivan-Solivan and Héctor Tirado, police sergeant Daniel
Colón, and members of the estate of former Puerto Rico Police
Superintendent Pedro Toledo-Dávila.

                                       -7-
insufficient evidence to support plaintiffs' claims.                     To oppose

defendants' motion for summary judgment, plaintiffs relied heavily

on the transcripts of Díaz's 2001 testimony during the hearings on

the motions for new criminal trials.                 Plaintiffs also filed a

motion in limine seeking a ruling on the admissibility of the

transcripts of Díaz's 2001 testimony under the hearsay exceptions

applicable to former testimony, to statements against interest, and

to otherwise reliable out-of-court communications.                     See Fed. R.

Evid. 804(b)(1), (3); 807. That testimony described outright fraud

by some of the defendants--but not ADA Redondo--in fabricating

evidence that was then used to secure an indictment and subsequent

prosecution.    It also supported a finding that ADA Redondo offered

Díaz an asthma machine while she was staying in the witness

protection shelter during a trial.9            In their reply to plaintiffs'

opposition    to   summary        judgment    and    in   their    opposition   to

plaintiffs'     motion       in     limine,     defendants        contested     the

admissibility of the transcripts.

             Rather   than    addressing       the    merits      of   defendants'

qualified immunity defense, the district court rejected the defense



     9
       The evidence strongly suggests that ADA Redondo made this
offer when Díaz experienced medical difficulties during yet a
third, later trial at which Díaz testified, and that he disclosed
the offer to defense counsel and to the court.       The criminal
defendant in that later trial was acquitted and is not a plaintiff
in this case. But, in view of the summary judgment standards, we
will assume that the offer occurred in one of the two trials in
which some of the plaintiffs were convicted.

                                        -8-
on procedural grounds as insufficiently argued and briefed.   In so

ruling, the district court observed that defendants "d[id] not

specify . . . which individuals are purportedly protected by

qualified immunity or for what conduct," and instead "merely

cite[d] federal case law regarding qualified immunity, without

applying it to the facts of their case."     As for ADA Redondo's

absolute immunity defense, the district court rejected it on the

merits, concluding somewhat cryptically that the evidence would

support a finding that ADA Redondo offered Díaz an asthma machine

in exchange for her testimony.   Finally, on the state law claims,

the court "note[d] its frustration with the poorly pled arguments

made by all parties" and refused to consider those arguments as

well.     The district court also found that defendants' exclusive

reliance on federal qualified immunity case law precluded the court

from determining whether any of the defendants were entitled to

immunity from the Puerto Rico law claims.       This interlocutory

appeal followed.10




     10
       After filing their notice of appeal, defendants sought from
this court a stay of trial pending the appeal. Another panel of
this court granted the stay with the instruction that the parties
brief "the appealability of the issue of the admissibility of
evidence on which the district court relied in denying summary
judgment on the ground of qualified immunity," and directed the
parties to Mersch v. City of Dallas, 207 F.3d 732, 735 (5th Cir.
2000), as a starting point.

                                 -9-
                             II.   Analysis

A.   The Qualified Immunity Defenses

          In their main brief on appeal, defendants present over

fifty pages of conclusory assertions, discursive digressions, and

factual contentions largely bereft of record citations or salient

organization, all under the rubric of a single argument:       "The

district court erred in denying summary judgment as to the issues

of qualified and/or absolute immunity, inasmuch as the court

centered its ruling on inadmissible hearsay evidence." The hearsay

to which defendants refer are the transcripts of Díaz's testimony

in which she recanted her prior trial testimony and described what

plaintiffs point to as the coercion, bribes, and coaching that

produced her false testimony leading to and presented in the

criminal trials.

          The problem for all appellants other than ADA Redondo is

that the district court plainly did not center its qualified

immunity ruling on any evidence at all, admissible or not. Rather,

it denied their request for summary judgment to the extent that

their request was based on qualified immunity defenses under state

and federal law for an entirely independent, procedural reason:

defendants' failure to explain how the law applied to the facts

concerning each defendant.    Piling one omission on top of another,

defendants fail to develop any argument in their brief on appeal

for why the district court erred in finding defendants' confusing


                                   -10-
and poorly structured motion papers insufficient even to bring

forward their defenses.             Indeed, defendants' lengthy brief to us

makes no mention of the district court's actual grounds for its

ruling    on    the     qualified    immunity    defenses.    And   even   after

plaintiffs' opposing brief drew this defalcation to defendants'

attention, the reply brief offers no reference to any argument or

analysis that belies the district court's conclusion.                  Instead,

defendants merely assert that there was evidence in the record that

the district court ignored, which misses the point.

               We    share   the   district    court's   frustration   with   the

inadequate briefing submitted on behalf of the defendants.                 It is

black letter law that "we deem waived claims not made or claims

adverted to in a cursory fashion, unaccompanied by developed

argument."          Rodríguez v. Municipality of San Juan, 659 F.3d 168,

175 (1st Cir. 2011); cf. De Araujo v. Gonzales, 457 F.3d 146,

152–53 (1st Cir. 2006) (petitioner's failure to challenge Board of

Immigration Appeal's summary dismissal of his case for failure to

file a brief waived his argument on the merits).               For this simple

reason, we reject the appeal of all defendants to the extent it is

predicated on their qualified immunity defenses under federal or

state law.11


     11
       This holding does not mean that all of the remaining claims
against all of these defendants will ultimately make it to the
factfinder. See Fed. R. Civ. P. 50(a); Camilo-Robles v. Hoyos, 151
F.3d 1, 9 (1st Cir. 1998) ("When a defendant fails on a pretrial
qualified immunity claim, he nonetheless can plead qualified

                                        -11-
B.   ADA Redondo's Absolute Immunity Defense

          That leaves only ADA Redondo's appeal of the denial of

his absolute immunity defense to the federal claims against him.

He argues that the district court erred in denying his motion for

summary judgment based on his absolute immunity defense.       The

district court rejected that defense on the merits, based solely on

the finding that "[e]vidence in the record suggests that [ADA

Redondo] offered Díaz-Colon an asthma therapy machine in exchange

for her testimony."

          ADA Redondo's initial argument for reversing the district

court's finding against him is that the 2001 testimony of Díaz upon

which the court relied will not be admissible at trial, see Fed. R.

Civ. P. 56(c)(2), because Díaz will not appear to testify.    This

argument seems to be quite a stretch given that Díaz's sworn 2001

testimony confessing to and describing her elaborate perjury had a

great "tendency . . . to expose [Díaz] to civil or criminal

liability," and was thus most likely admissible as an exception to

the rule against hearsay.   Fed. R. Evid. 804(b)(3)(A); see also

United States v. Jiménez, 419 F.3d 34, 43 (1st Cir. 2005); Whitlock

v. Brueggemann, 682 F.3d 567, 575 (7th Cir. 2012).   Additionally,

even if the argument had some hope of success, it is not clear that



immunity as an affirmative defense and resurrect the claim at
trial."). Rather, we hold only that these defendants both below
and on appeal have waived any ability to secure summary judgment in
their favor.

                               -12-
we could consider it given the interlocutory nature of this appeal.

Compare Whitlock, 682 F.3d at 575 (no review of evidentiary issue

on interlocutory appeal); and Ellis v. Washington Cnty., 198 F.3d

225, 229 (6th Cir. 1999) (same); with Mersch v. City of Dallas, 207

F.3d 732, 735 (5th Cir. 2000) (reviewing evidentiary issue).

           Ultimately, we need not rule on this evidentiary argument

or examine more closely our jurisdiction even to consider such an

argument on interlocutory review.        Rather, we turn to and rely on

a second argument that Redondo advances for reversing the summary

judgment denial on its merits.12         That argument challenges the

district court's conclusion that, if ADA Redondo did what Díaz says

he did (offer her an asthma therapy machine in exchange for her

testimony), his immunity as a prosecutor would not protect him.

           The basic principles applicable to assertions of absolute

prosecutorial immunity are set forth in Van de Kamp v. Goldstein,

555 U.S. 335 (2009).   See also Knowlton v. Shaw, 704 F.3d 1, 5 (1st

Cir. 2013). Prosecutorial immunity applies to conduct "'intimately

associated with the judicial phase of the criminal process.'"           Van

de Kamp, 555 U.S. at 343 (quoting Imbler v. Pachtman, 424 U.S. 409,

430   (1976)).   Deciding   where   to    draw   the   line   between   such

immunized prosecutorial advocacy and conduct that is, for example,


      12
        We do note that the undifferentiated structure of
defendants' appellate briefing, the jumbling together of all the
defendants, and the lack of any helpful table of contents or
argument headings came close to causing us to consider this
argument waived as well.

                                -13-
exclusively investigative or administrative is not always easy.

See, e.g., Genzler v. Longanbach, 410 F.3d 630, 637 (9th Cir. 2005)

("[T]he   Supreme   Court   has   resisted    any   attempt   to   draw   a

bright-line between" advocacy and investigation).         Nevertheless,

our task in this case is made somewhat easier by the district

court's uncontested finding that ADA Redondo did not participate

in, or advise the police in connection with, the investigations of

the murders.    This finding rules out the possibility that ADA

Redondo had anything to do with inducing Díaz to give the false

statements that implicated plaintiffs in the unsolved crimes.         Cf.

Buckley v. Fitzsimmons, 509 U.S. 259, 274 (1993) (no immunity for

fabricating evidence before probable cause established); Burns v.

Reed, 500 U.S. 478, 496 (1991) (no immunity for giving advice to

police during investigation). Instead, his involvement was limited

to his actions as a prosecutor in connection with preparing the

Commonwealth's evidence at trial.        And it has long been clear that

absolute immunity bars a damages action against a prosecutor for

presenting testimony at trial even if the prosecutor knows that the

testimony is false.   Imbler, 424 U.S. at 430–31 & n.33.

           The assertion in this case that the prosecutor not only

presented false testimony, but also offered something of value to

induce a trial witness to testify creates no basis for concluding

that the conduct was any less "intimately associated with the

judicial phase of the criminal proceeding." Id. at 430. Preparing


                                  -14-
trial witnesses is at the core of what a prosecutor qua prosecutor

does,    and    the    trial    itself      is    the    quintessential   judicial

proceeding.       Buckley, 509 U.S. at 273 (immune tasks "include the

professional evaluation of the evidence assembled by the police and

appropriate      preparation         for    its     presentation     at   trial").

Prosecutors regularly prepare and present testimony by witnesses to

whom    the    government      has   offered      inducements   to   secure    their

cooperation.      Disclosure requirements and due process principles

provide some protection to criminal defendants from abuses of this

practice.       Brady v. Maryland, 373 U.S. 83, 87 (1963); Napue v.

Illinois, 360 U.S. 264, 269 (1959) ("[I]t is established that a

conviction obtained through use of false evidence, known to be such

by representatives of the State, must fall under the Fourteenth

Amendment.") (citing Mooney v. Holohan, 294 U.S. 103, 112–13 (1935)

(per curiam)).        It is another thing altogether, though, to provide

wrongfully      charged   individuals        with    a   private   damages    remedy

against prosecutors when cooperating witnesses lie. If prosecutors

could be sued civilly every time any such witness claimed a

wrongful inducement to lie, prosecutors might well be exposed to

numerous such suits. Weighing the costs and benefits to the public

interest of such an exposure to civil liability, the law bars such

claims when they arise out of the prosecutor's work in a criminal

proceeding.      See Dory v. Ryan, 25 F.3d 81, 83 (2d Cir. 1994); Rose

v. Bartle, 871 F.2d 331, 344–45 (3d Cir. 1989). See generally, Van


                                           -15-
de Kamp, 555 U.S. at 342 (discussing policy reasons for shielding

prosecutors).

            In a last-ditch effort, plaintiffs' counsel argued that

ADA Redondo's participation on "the prosecution team" defeated

absolute    immunity,    presumably     by   making   him   liable   for   the

misconduct of others in the previous procuring of the false

statements.     Adopting    this   approach     would   render   prosecutors

vicariously liable in all cases involving improper actions since,

at some point, a prosecutor is always a member of "the prosecution

team." Such an exponential increase in potential liability plainly

conflicts   with   the   purpose   of   affording     prosecutors    absolute

immunity, to insulate prosecutorial discretion and resources from

the threat of litigation.      Van de Kamp, 555 U.S. at 345; Imbler,

424 U.S. at 424–25.         Absolute immunity therefore shields ADA

Redondo from having to stand trial for the malicious prosecution

and conspiracy claims under section 1983.

                            III.   Conclusion

            We reverse and remand for entry of summary judgment for

ADA Redondo on plaintiffs' federal claims for malicious prosecution

and conspiracy. We otherwise affirm the district court's denial of

summary judgment, and remand for proceedings consistent with this

decision.




                                   -16-
