                   Not for Publication in West's Federal Reporter

             United States Court of Appeals
                          For the First Circuit

No. 08-1482

                        JORGE E. APONTE-HERNÁNDEZ,

                           Plaintiff, Appellant,

                                        v.

 ANA P. CRUZ-VÉLEZ, Contractor Prosecutor for the Government of
Puerto Rico, and HÉCTOR M. MONTAÑEZ-REYES, Contractor Prosecutor
               for the Government of Puerto Rico,

                          Defendants, Appellees,

    ANÍBAL ACEVEDO-VILÁ, Governor of Puerto Rico, JOSÉ PÉREZ-
  RODRÍGUEZ, Contractor Prosecutor for the Government of Puerto
   Rico, JANE DOE, Contractor Consultant for the Government of
            Puerto Rico, INSURANCE COMPANIES A, B, C,

                                  Defendants.


             APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF PUERTO RICO
               [Hon. José A. Fusté, U.S. District Judge]


                                 Before
                     Torruella, Selya, and Leval,*
                           Circuit Judges.


          John F. Nevares with whom Xiomara Colón Rodríguez and
John F. Nevares & Associates, P.S.C. were on brief for appellant.
          Leticia Casalduc-Rabell, Assistant Solicitor General,
with whom Maite D. Oronoz Rodríguez, Acting Solicitor General, and
Ileana Oliver-Falero, Acting Deputy Solicitor General, were on
brief for appellees.



     *
         Of the Second Circuit, sitting by designation.
July 2, 2009
            LEVAL,     Circuit     Judge.     Plaintiff   Jorge    E.    Aponte-

Hernández appeals from the judgment of the United States District

Court for the District of Puerto Rico in favor of Defendants Ana

Cruz-Vélez and Héctor Montañez-Reyes based upon the jury’s verdict

after trial, dismissing Plaintiff’s suit brought under 42 U.S.C. §

1983. Plaintiff’s complaint alleged that the defendants engaged in

malicious and retaliatory prosecution of criminal charges related

to his role as director of the Puerto Rico Office of Management and

Budget (“OMB”).       He contends on appeal that the jury’s verdict was

against the weight of the evidence and that the district court

should therefore have granted him a new trial.                    We find the

evidence appropriately sustained the verdict and therefore affirm

the judgment.

                                   BACKGROUND

            Aponte-Hernández was director of Puerto Rico’s OMB in the

1990s.     In 1997 and 1998, his office was responsible for a real

estate transaction in which the government purchased an office

building at four times the price at which it was originally

offered.    The transaction was reviewed by a Blue Ribbon Commission

created    by   the    then-governor    of   Puerto   Rico   to   investigate

corruption.     The Blue Ribbon Commission determined that Aponte-

Hernández’s     role    in   the     transaction   exhibited      a     lack   of

professionalism and that his agency had acted in a “gross and

unforgivably negligent manner.”              Accordingly, the Blue Ribbon


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Commission recommended that the Puerto Rico Department of Justice

consider    filing   a   civil   case    against   Aponte-Hernández.     The

Department of Justice referred the matter to a Special Independent

Prosecutor (“SIP”) tasked with investigating public officials.

Upon the expiration of the contract of the person initially acting

as SIP on Plaintiff’s case, Defendant Cruz-Vélez took over the

prosecution, with Defendant Montañez-Reyes acting as her deputy.

Cruz-Vélez recommended and ultimately brought criminal charges

against Aponte-Hernández for violating 33 L.P.R.A. § 4391, which

imposes criminal liability on a public official who “[n]eglects or

fails to safekeep or disburse public funds as prescribed by law.”

At the eventual criminal trial of those charges, Aponte-Hernández

was “peremptorily” acquitted by the trial judge for “total lack of

evidence.”

            Plaintiff then filed this action in the United States

District Court against Cruz-Vélez, Montañez-Reyes, and José Pérez-

Rodríguez, who worked with them on the prosecution of Plaintiff’s

case.1     The complaint asserted claims under 42 U.S.C. §§ 1983,

1985, and 1986, alleging that the defendants engaged in malicious

and   retaliatory    prosecution.         The   district   court   eventually




      1
      His complaint also named the governor of Puerto Rico, as well
as various John Doe defendants who were never identified.

                                        -4-
dismissed all claims except the claims against Cruz-Vélez and

Montañez-Reyes pursuant to § 1983.2

          During trial Aponte-Hernández took the witness stand and

called several witnesses, including his former OMB subordinate Juan

Emmanuelli,    the    original      prosecutor        on   his    case,      his   former

attorney, and the appraiser and original owner of the property at

issue in the investigation, as well as Defendants Cruz-Vélez and

Pérez-Rodríguez.          The defendants presented direct testimony by

Cruz-Vélez    and    otherwise      relied       on   cross-examination            of   the

plaintiff’s witnesses.

          After a brief deliberation, the jury delivered a verdict

in favor of the defendants.          Plaintiff moved, pursuant to Fed. R.

Civ. P. 59, for a new trial on the ground that the verdict was

against the weight of the evidence.              Before sending the case to the

jury, the trial judge expressed his view (out of the earshot of the

jury) that “the prosecution of Mr. Aponte was a total abuse. . . .

There was no reason in law or in fact to proceed with that

prosecution.    .     .    .   I   think    this      is   a     case   of    malicious

prosecution.”       Nonetheless, the court denied the motion for a new

trial.   The trial court explained that the case was not for him,

but for the jury to decide.          The judge added:            “This record fully




     2
      Aponte-Hernández does not appeal from the dismissal of the
claims against Cruz-Vélez and Montañez-Reyes under §§ 1985 and 1986
or the dismissal of the claims against the other defendants.

                                           -5-
supports the jury verdict.        The jury could have easily” found for

the defendants.

                                  DISCUSSION

              On appeal, Plaintiff contends that the jury’s verdict in

favor of Cruz-Vélez and Montañez-Reyes regarding his claim under §

1983 was against the weight of the evidence, and that the district

court erroneously denied his motion for a new trial.              In order to

prevail in establishing such a claim on appeal, the appellant must

show that the district court’s ruling was “a manifest abuse of

discretion,” Marcoux v. Shell Oil Prods. Co. LLC, 524 F.3d 33, 40

(1st Cir. 2008) (quoting United States v. George, 448 F.3d 96, 101

(1st   Cir.    2006)),   and    that   the   weight   of   the   evidence   is

“grotequely lopsided” in his favor, Freeman v. Package Machinery

Co., 865 F.2d 1331, 1334 (1st Cir. 1988).

              The only issue in significant dispute at trial was

whether the defendants acted with malice in the face of clear

absence of probable cause in prosecuting the criminal charges

against the Plaintiff.         Because at the initiation of the criminal

case against him a Puerto Rico court had found probable cause to

charge him, Aponte-Hernández attempted to show that the defendants

knowingly presented false or tainted evidence at the probable cause

hearing to secure this finding.

              The main evidence Plaintiff presented in support         of his

claim was as follows.      Plaintiff’s former attorney testified that


                                       -6-
one   of   the   original    prosecutors      (who    was    replaced   by   the

defendants) told him that there was no evidence against Aponte-

Hernández, but to avoid prosecution, Aponte-Hernández would have to

provide evidence linking other officials to the real estate deal

under investigation. Plaintiff also asserted that the prosecutors’

malice was demonstrated by the fact that the charging document,

prepared by the defendants, accused him of “unlawful, willful,

malicious, criminal and intentional” conduct, while, as Cruz-Vélez

admitted on cross-examination, the law required a showing of only

negligence on his part to sustain a criminal conviction. Plaintiff

relied also on Cruz-Vélez’s admission that she introduced a “draft”

of an expert report at the probable cause hearing to support the

argument that the real estate in question had been appraised at an

inflated value, and that she introduced a document regarding the

initial offer to sell the real estate in question, three pages of

which had not been faxed to the OMB at the time.                        Finally,

Plaintiff   relied   on     the   testimony   of     his    former   subordinate

Emmanuelli, to the effect that he felt threatened and harassed by

the prosecutors when they interviewed him, and that this caused him

to sign an immunity agreement and alter his testimony.                Plaintiff

suggests that this evidence was uncontroverted at trial, and

overwhelmingly demonstrated the defendants’ malice.

            In fact, however, this evidence was controverted through

the direct testimony of Cruz-Vélez and through cross-examination of


                                      -7-
Plaintiff’s      witnesses.     In    her    testimony,   Cruz-Vélez    offered

alternative      explanations        for    the   actions      that   Plaintiff

characterized as malicious and fraudulent. For example, Cruz-Vélez

testified that the phrase “unlawful, willful, malicious, criminal

and intentional” in the charging document was pro forma language

conventionally used for accusations filed in state court and did

not manifest a desire on her part to smear the plaintiff.               As for

the   prior    prosecutor’s    comments      to   Aponte-Hernández’s     former

counsel, she testified that she was unaware of them, and that, in

any event, her predecessor had said nothing of the kind to her.              In

addition she testified that if any of the evidence she introduced

at the probable cause hearing was questionable, she had presented

it innocently, and without malice or intent to deceive.                Finally,

Cruz-Vélez emphasized that the decision to prosecute was consistent

with the findings of the Blue Ribbon Commission and the Department

of    Justice.      And   as   for    the    testimony    of   Emmanuelli,   he

acknowledged on cross-examination by the defendants that the only

alterations to his testimony suggested by the prosecutors were

stylistic rather than substantive, and confirmed that the testimony

he gave in the criminal proceeding against Aponte-Hernández was

true.

              Accordingly, all of Plaintiff’s evidence of malice and

fraud on the part of the defendants was controverted.                      With

evidence on both sides of the crucial issue of the defendants’


                                       -8-
malice,   the    jury     could   properly   have    credited     Cruz-Vélez’s

testimony.      The jury could also have weighed the conflicting

evidence and concluded that Aponte-Hernández, who had the burden of

proof, failed to prove malice or a lack of probable cause by a

preponderance of the evidence.

           In    short,     the   evidence   was    disputed;     it   was   not

“grotesquely lopsided” in favor of Aponte-Hernández.              Freeman, 865

F.2d at 1334.        In these circumstances, it was reasonable for the

jury to find in favor of the defendants, and the trial judge acted

well within his discretion in denying Plaintiff’s motion for a new

trial.

           In support of his claim that the district judge abused

his discretion in declining to grant a new trial, Plaintiff points

to the trial judge’s own statements expressing his opinion that the

prosecution was malicious.        The problem with Plaintiff’s reliance

on the trial judge’s remarks is that, in denying Plaintiff’s motion

for a new trial, the trial judge recognized that conflicting

evidence, and observed that the jury’s verdict was reasonably

supported by the evidence.        In light of the disputed evidence, the

trial judge and the jury might well have credited, and discredited,

different versions of the contested facts and drawn different, but

equally permissible, inferences from the facts.             See Freeman, 865

F.2d at 1334.        After stating his view that the Plaintiff had been

the   victim    of    malicious   prosecution,      the   judge   added   that,


                                      -9-
notwithstanding his personal opinion, the case was for the jury to

decide.

          There was evidence which, if credited by the jury,

supported a verdict in the defendants’ favor. The evidence was not

“grotesquely lopsided.”   Id.   Accordingly, the trial court did not

abuse its discretion in refusing to set aside the jury verdict and

grant a new trial.

                            CONCLUSION

          For the foregoing reasons, the judgment of the district

court is AFFIRMED.




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