                                                                           FILED
                           NOT FOR PUBLICATION                             DEC 24 2013

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


MARCO ANTONIO GARCIA, an                         No. 11-56982
individual,
                                                 D.C. No. 8:09-cv-01169-DOC-
              Plaintiff - Appellee,              RNB

  v.
                                                 MEMORANDUM*
UNITED STATES OF AMERICA,

              Defendant,

  And

RAYMOND A. ESCOBAR, AKA Ray
Escobar,

              Defendant - Appellant.


                    Appeal from the United States District Court
                       for the Central District of California
                     David O. Carter, District Judge, Presiding

                     Argued and Submitted December 3, 2013
                              Pasadena, California

Before: D.W. NELSON, WARDLAW, and RAWLINSON, Circuit Judges.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      In this Bivens action, Marco Antonio Garcia asserts Fourth Amendment

claims against Immigration and Customs Enforcement Special Agent Ray Escobar,

arising from Garcia’s apparently wrongful arrest and indictment as a courier in a

global money-laundering conspiracy. Escobar appeals the district court’s denial of

qualified immunity on his motion for summary judgment. We have jurisdiction

pursuant to 28 U.S.C. § 1291, and we affirm.

      1.     The district court did not err in holding that there was a genuine

dispute of material fact as to whether probable cause supported Garcia’s arrest.

Among the disputed factual issues correctly identified by the district court are:

whether anyone actually identified Garcia before his arrest; whether Escobar made

a reckless or deliberate misrepresentation by listing Detective Moreno as having

identified Garcia; and whether Escobar recklessly or deliberately withheld

exculpatory information by excluding relevant photographs from his report. A

genuine dispute exists as to whether a prudent person would have concluded that

there was a fair probability that the courier was Garcia. Peng v. Mei Chin Penghu,

335 F.3d 970, 976 (9th Cir. 2003).

      2.     The district court did not err in holding that Escobar failed to show

that the evidentiary presumption that a criminal prosecution results from the

prosecutor’s independent determination of probable cause renders Escobar


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immune. Awabdy v. City of Adelanto, 368 F.3d 1062, 1067 (9th Cir. 2004). A

genuine dispute of material fact exists as to whether Escobar engaged in reckless or

deliberate misrepresentations or omissions. Galbraith v. Cnty. of Santa Clara, 307

F.3d 1119, 1126 (9th Cir. 2002). There is also a genuine dispute as to whether any

misrepresentations or omissions were material to the prosecutor’s probable cause

determination. Id. Although the prosecutor also relied on a report submitted by

the Drug Enforcement Administration, that report in turn relied heavily on

Escobar’s report to identify Garcia as the courier.

      3.     The district court did not err in holding that the law was clearly

established. An objectively reasonable officer would have known that making

reckless or deliberate misrepresentations or omissions in a report to a prosecutor,

which resulted in an arrest without probable cause, violates the arrestee’s Fourth

Amendment rights. Id.; Barlow v. Ground, 943 F.2d 1132, 1137 (9th Cir. 1991).

      4.     The district court did not err by rejecting Escobar’s argument that

executing a valid arrest warrant entitles him to qualified immunity for preparing

the prosecution report. See Harris v. Roderick, 126 F.3d 1189, 1198 (9th Cir.

1997) (“Officers who in good faith relied upon . . . reports may well be able to

assert a successful qualified immunity defense . . . . The fabricators of a false story

that misled them cannot.”).


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AFFIRMED.




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