

                UNITED STATES COURT OF APPEALS
                    FOR THE FIRST CIRCUIT
                                         

No. 92-1662

               JOSE A. RIVERA-MARCANO, ET AL.,

                   Plaintiffs, Appellants,

                              v.

               NORMEAT ROYAL DANE QUALITY A/S,
             (formerly NORMEAT-HOLDING &amp; EXPORT),

                     Defendant, Appellee.

                                         

         APPEAL FROM THE UNITED STATES DISTRICT COURT

               FOR THE DISTRICT OF PUERTO RICO

      [Hon. Juan M. Perez-Gimenez, U.S. District Judge]                                                                  

                                         

                            Before

                   Torruella, Circuit Judge,                                                       

               Campbell, Senior Circuit Judge,                                                         

                  and Stahl, Circuit Judge.                                                      

                                         

Hector Cuebas  Tanon with whom Vicente  &amp; Cuebas was  on brief for                                                            
appellants.
Ivan  R. Fernandez-Vallejo with whom Raymond E.  Morales and Brown                                                                              
Newsom &amp; Cordova were on brief for appellee.                        

                                         

                        July 13, 1993
                                         

          CAMPBELL, Senior Circuit Judge.  The district court                                                    

granted summary judgment for appellee on appellants' claim of

malicious prosecution.  Finding no error, we affirm.

                              I.                                          I.

          Appellant  Jose A. Rivera Marcano ("Rivera") is the

sole  owner   and  operator   of  J.A.R.  Enterprises,   Inc.

("J.A.R."), a brokerage and distribution firm in Puerto Rico.

Beginning in 1983, J.A.R.  served as the exclusive broker  in

Puerto  Rico  of the  luncheon meat  and other  food products

manufactured  by  appellee  Normeat  Royal  Dane Quality  A/S

("Normeat"),  a  corporation  with  its  principal  place  of

business in Denmark.    Normeat normally  shipped merchandise

to J.A.R. on a credit basis.  J.A.R. would then transport the

merchandise  to  customers  in  Puerto  Rico  and  bill  them

directly.  After customers paid J.A.R.    usually by means of

checks  made payable to  either Normeat  or J.A.R.     J.A.R.

would  deposit the  money  in its  bank  account, keep  three

percent of  the amount as  a sales commission, and  remit the

balance  to Normeat.    Ordinarily,  J.A.R.  had  an  account

payable to Normeat with an outstanding balance of hundreds of

thousands of dollars.  

          Sometime in 1987, Normeat's new management informed

Rivera that it would no longer extend credit for shipments to

J.A.R. and demanded immediate payment of J.A.R.'s outstanding

account balance of approximately $500,000.  Rivera  protested

                             -2-

the   change,  informing   Normeat   that   the  new   policy

contradicted  long-standing  practice and  created  financial

difficulties for  J.A.R.   Negotiations  between the  parties

failed to resolve the dispute, and Normeat notified Rivera in

October  1987 that  it would  cease  shipping merchandise  to

J.A.R.  and would  proceed to  collect all  sums  due through

appropriate legal channels.

          Two  years  later,  in June  1989,  Ken  Rasmussen,

deputy managing director  of Normeat, gave a  sworn statement

to  a  state prosecutor  in  the  Puerto  Rico Department  of

Justice  regarding Rivera's failure, as owner and operator of

J.A.R., to turn over one or more customer payments  allegedly

belonging to Normeat.  The  record contains neither a copy of

Rasmussen's sworn  statement nor  anything else  showing what

Rasmussen told the  prosecutors.  The Puerto  Rico Department

of  Justice  conducted an  investigation of  the accusations,

although the  extent of the  investigation is not  clear from

the record. 

          In September 1989, a Department of Justice attorney

filed criminal charges  against Rivera in the  Superior Court

of  Puerto Rico, alleging  six separate counts  of aggravated

unlawful appropriation    in violation  of Article 166 of the

Puerto  Rico Penal  Code,  33  L.P.R.A.    42721     and  two

                                                    

1.  33 L.P.R.A.   4272 provides, in relevant part:

                             -3-

counts of  forgery of  documents    in  violation of  Article

271,  33 L.P.R.A.     45912     all  felonies.   The  charges

accused Rivera, in essence, of depositing in the J.A.R.  bank

account  six checks  written  by  customers  as  payment  for

Normeat  merchandise and not transferring the payments, minus

                                                    

               Any  person  committing  the offense
          described in  section 4271 of  this title
          [Unlawful    Appropriation]    shall   be
          punished by imprisonment for a fixed term
          of ten (10) years, whenever the following
          circumstances exist:
               . . .
               (b)  Unlawfully   appropriating  the
          property of another valued at two hundred
          dollars or more; . . . .

     33  L.P.R.A.     4271,  referred  to  in  section  4272,
provides:

               Any     person     who    unlawfully
          appropriates,    without   violence    or
          intimidation, personal property belonging
          to another person,  shall be punished  by
          imprisonment for a term not exceeding six
          months, a fine not exceeding five hundred
          dollars, the  penalty of  restitution, or
          any   combination    thereof,   in    the
          discretion of the court.

2.  33 L.P.R.A.   4591 provides in relevant part:

               Any person  who, with the  intent to
          defraud  another,  falsely draws  up,  in
          whole or in part,  a document, instrument
          or   writ   through  which   any   right,
          obligation   or   interest   is  created,
          transferred,   terminated   or  otherwise
          affected,   or   who    falsely   alters,
          counterfeits,  suppresses  or  destroys a
          genuine one in whole or in part, shall be
          punished by imprisonment for a fixed term
          of nine (9) years. . . .

                             -4-

J.A.R.'s sales  commission, to  Normeat.3   A Superior  Court

judge found  probable cause  to issue  an arrest  warrant for

Rivera on all  eight charges, and referred the  case to three

different courts for preliminary hearings because the alleged

crimes  took place in  three different jurisdictions.   Three

magistrates  separately  considered  the  charges  and  found

probable  cause to  proceed  to  trial on  six  of the  eight

charges.  One aggravated unlawful appropriation count and one

forgery count, both relating to a November 12, 1986 check for

$59,274.12 from a company called Mister Price, were dismissed

for lack of probable cause.4

                                                    

3.  The six counts of aggravated  unlawful appropriation were
based on the following transactions:  

     1)  a November 12, 1986 check for $59,274.12 from Mister
Price, Division  of Belca Equipment  Corporation, payable  to
Normeat; 
     2) a November 22, 1986 check for  $60,557.41 from Pueblo
International, Inc. payable to J.A.R.;
     3) a  December 29, 1986 check for $61,337.16 from Mister
Price payable to Normeat;
     4) a February  10, 1987 check  for $30,645.15 from  Alba
Imports Corporation payable to J.A.R.;
     5) a  March  24, 1987  check  for $58,674.96  from  Alba
Imports payable to J.A.R.; and, 
     6)  an April  22, 1987  check for  $30,646.67 from  Alba
Imports payable to J.A.R.

The two counts of forgery  were based on the two  checks made
payable to Normeat.

4.  In the district  court, appellants submitted copies  of a
cancelled  check purporting to  show that J.A.R.  did in fact
pay Normeat $57,495.90  for the Mister  Price shipment a  few
months  after  receiving  the  $59,274.12  check from  Mister
Price.

                             -5-

          The remaining counts were consolidated for trial at

the  San Juan Superior Court.  After  one day of testimony on

February  21, 1990, the  main prosecution witness, Rasmussen,

left  Puerto  Rico for  Denmark  and  never returned  to  the

island.   The prosecutor moved for  dismissal of the criminal

charges,  and the court  granted dismissal with  prejudice on

February  26,  1990.    The   dismissal  is  now  final   and

unappealable.

          Rivera,  along  with his  wife  and  their conjugal

partnership, brought this diversity action against Normeat on

November 26,  1990, in the  United States District  Court for

the  District of  Puerto Rico,  seeking  damages pursuant  to

Puerto Rico tort law for the alleged malicious prosecution of

Rivera by Normeat.   Normeat moved to dismiss  for failure to

state a claim.  See Fed. R. Civ. P. 12(b)(6).  Because it had                               

numerous exhibits before  it from both parties,  the district

court  treated Normeat's motion  as one for  summary judgment

and granted  it on April 21, 1992.   See Fed. R.  Civ. P. 56.                                                    

Appellants now appeal from that final judgment.5

                             II.                                         II.

          We review summary judgment  grants de novo, reading                                                                

the  record in  the  light most  favorable  to the  nonmoving

party.  August v. Offices  Unlimited, Inc., 981 F.2d 576, 580                                                      

                                                    

5.  The district court had diversity jurisdiction pursuant to
28 U.S.C.   1332(a)(2).  This court has jurisdiction pursuant
to 28 U.S.C.   1291.

                             -6-

(1st Cir. 1992).   To demonstrate the existence  of a genuine

issue  of material fact,  plaintiffs must point  to concrete,

admissible  evidence.  Id.   Mere allegations,  or conjecture                                      

unsupported in the record, are insufficient.  Id.                                                             

          Under   Puerto  Rico  law,  a  plaintiff,  such  as

appellant, alleging malicious prosecution bears the burden of

proof.   Vince v. Posadas de  Puerto Rico S.A.,  683 F. Supp.                                                          

312, 315  (D.P.R. 1988);  Par s v. Ruiz,  19 P.R.R.  323, 327                                                   

(1913).  The four essential elements of the tort are: (1) the

criminal   action  was  initiated   and  instigated   by  the

defendant; (2) the criminal action terminated in favor of the

plaintiffs; (3)  the  defendant  initiated  the  action  with

malice and without probable cause;  and (4) as a consequence,

the  plaintiffs suffered damages.  Ocasio  v. Rosa, 88 J.T.S.                                                              

42 (P.R. 1988); Par s,  19 P.R.R. at 327.   The third element                                 

may  also be  described  as  two  separate  elements  because

plaintiffs  must  show  both that  the  defendant  acted with                                        

malice and that he acted  without probable cause.  Vince, 683                                                                    

F.  Supp. at 315  &amp; n.4.   Failure to prove  any element bars

recovery.  Id.  at 315-16; Torres v. Marcano,  68 P.R.R. 813,                                                        

817 (1948); Par s, 19 P.R.R. at 332.                             

          The  district court  granted  summary judgment  for

appellee Normeat  on the ground  that nothing  in the  record

supports a finding that Normeat acted without probable cause.

"[P]robable  cause for  imputing the  commission  of a  crime

                             -7-

consists  in the  fact  that  there  are  reasonable  grounds

therefor, supported by circumstances which  are sufficient to

warrant a reasonable belief that the defendant is the  author

of  the crime."    Jim nez  v. S nchez,  76  P.R.R. 347,  352                                                  

(1954); see Vince,  683 F. Supp. at 316; Par s,  19 P.R.R. at                                                          

331.   Probable cause does not  depend on the actual guilt or

innocence  of  the   accused,  but  simply  on   whether  the

circumstances  are "sufficient  to produce  in the mind  of a

reasonable  person  the belief  that the  charge he  makes is

true."  Par s, 19 P.R.R. at 331.                         

          In  respect  to  five  of  the  six   transactions,

appellants pointed to  no evidence tending to  establish that

Normeat   lacked   probable   cause  to   accuse   Rivera  of

misappropriating  and forging the alleged checks.  The record

indicates  that  Rivera  received   those  five  checks  from

customers and deposited them in the J.A.R.  bank account, but

nothing shows that he  forwarded the paid amounts, minus  his

commission, to Normeat.   In addition, the record  shows that

the Department of  Justice attorney, after  an investigation,

found probable cause  sufficient to file the  charges against

Rivera, and a  Superior Court judge  found probable cause  on

all eight charges  sufficient to issue an  arrest warrant for

Rivera.  Three different magistrates, in separate preliminary

hearings, found that  evidence on the counts related to these

five transactions was sufficient to  send the case to  trial.

                             -8-

Because  appellants  failed  to  produce  any  evidence  that

Normeat  lacked probable cause  to prosecute Rivera  based on

those five checks, appellants would not be able to maintain a

claim for malicious prosecution based on those charges.

          Appellants  instead   focus  on  the   two  charges

dismissed after  a preliminary  hearing before a  magistrate,

both of  which were  related to the  November 12,  1986 check

from the  Mister Price company  in the amount  of $59,274.12.

Appellants argue that Normeat lacked probable cause to accuse

Rivera of misappropriating and forging this particular check.

The  record contains  a  cancelled check  purportedly showing

that  on February 13,  1987, J.A.R. paid  Normeat $57,495.90,

the balance due for the shipment of goods to the Mister Price

company, and  a sworn  statement from  Rivera asserting  that

J.A.R. paid Normeat for the Mister Price shipment.  

          Whether and in  what circumstances a plaintiff  may

maintain   a  malicious  prosecution   action  based  on  one

groundless accusation, when probable cause existed for one or

more  other  accusations made  concurrently,  has never  been

addressed  by  the  Puerto  Rico Supreme  Court.    In  other

jurisdictions,  courts have  permitted  such  actions if  the

charges  stem from  different sets  of facts  and if  all the

other  elements  of   a  malicious   prosecution  claim   are

fulfilled.  See, e.g.,  Posr v. Doherty, 944 F.2d 91, 100 (2d                                                   

Cir. 1991)  (holding that plaintiff  could maintain malicious

                             -9-

prosecution claim  based on  groundless charges  of resisting

arrest  and  assault  even  if  probable  cause  existed  for

disorderly conduct charge); Singleton v. Perry, 289 P.2d 794,                                                          

799-800   (Cal.  1955)   ("[P]laintiff,  having   shown  that

defendant maliciously  joined an  unjustified  charge with  a

justified charge, does not have the further burden of showing

that  her   damage  was  specifically  attributable   to  the

malicious prosecution as opposed to the prosecution which the

jury found was not malicious."); see also DeLaurentis v. City                                                                         

of  New Haven, 597  A.2d 807, 821-22  (Conn. 1991) (reviewing                         

cases).  But see Ruff v. Eckerds Drugs, Inc., 220 S.E.2d 649,                                                        

651-52  (S.C. 1975)  ("[A]n action for  malicious prosecution

should not be  available, where, as here,  both charges arise

out of the same set of circumstances.").

          In Rivera's case, even if he has presented evidence

sufficient  to raise a  genuine issue of  fact concerning the

lack of  probable cause  for the two  charges related  to the

November  12,  1986  check from  Mister  Price,  there is  no

evidence  to support the first essential element of malicious

prosecution: to  wit, that Normeat,  as opposed to  the state                                

prosecutors, initiated  and instigated  these two  particular

charges.6   See  Raldiris v.  Levitt &amp;  Sons of  Puerto Rico,                                                                         

                                                    

6.  The   district  court  did  not  consider  the  issue  of
instigation of the prosecution, but  we are free to affirm on
any  independently sufficient ground.   Aunyx Corp.  v. Canon                                                                         
U.S.A., Inc.,  978 F.2d 3,  6 (1st Cir. 1992),  cert. denied,                                                                        
113 S. Ct. 1416 (1993).

                             -10-

Inc.,  103 D.P.R.  778, 3  P.R.  Sup. Ct.  Off'l Translations                

1087, 1091-92 (1975).  As  discussed above, under Puerto Rico

law a malicious prosecution plaintiff must show that:

          [the] defendant was actively instrumental
          in  the  initiation  of  the  prosecution
          through some affirmative action by way of
          advice,   petition,    encouragement   or
          pressure.   To furnish  information to  a
          prosecuting attorney  does not  by itself
          constitute    an    instigation,    since
          generally  in those  cases the  efficient
          cause   of   the    initiation   of   the
          prosecution has  been the  initiative and
          decision of the  prosecuting attorney, in
          the  exercise  of his  discretion,  after
          having  carried  out   the  corresponding
          investigation.

Jim nez v. S nchez, 76 P.R.R. at 351.  Where  the decision to                              

file charges is within  the discretion of the prosecutor,  it

is  not  sufficient for  plaintiffs merely  to show  that the

defendant  gave  incomplete  information to  the  prosecutor.

Plaintiffs must show  that the incomplete  information caused

or  "compelled" the  government authorities  to  file charges

against the plaintiff.  Torres  v. Marcano, 68 P.R.R. at 818-                                                      

20.  Unless the defendant is shown to have knowingly provided

false  information to the  officials, "[t]he exercise  of the

officer's discretion makes the initiation of  the prosecution

his   own  and  protects  from  liability  the  person  whose

information or accusation has led the officer to initiate the

proceedings."  Id.  at 819 (quoting 3 Restatement  (First) of                                                                         

Torts   653(2), cmt.).                 

                             -11-

          The record  contains no evidence that  Rasmussen or

other Normeat  officials specifically instigated  the charges

based on the November 12, 1986 check, nor  that they were the

source  of incomplete  or  false  information  to  the  state

officials  on that  item.   The  record  indicates only  that

Rasmussen gave a sworn statement to the prosecuting attorneys

regarding  the failure  of J.A.R.  to turn  over one  or more

payments due to  Normeat, a perfectly true  statement insofar

as anything in the record shows.  No actual copy of the sworn

statement  appears in the  record, nor is  there an affidavit

from  Rasmussen  or  a  prosecutor  indicating  exactly  what

Rasmussen  told the prosecutors.  Appellants concede that the

prosecutors conducted  an investigation of  J.A.R.'s dealings

with  Normeat and that a Department  of Justice attorney, not

Rasmussen,  filed the formal charges in court against Rivera.

It  is  conceivable  that  the  two  charges related  to  the

November 12, 1986 check resulted from oversights or errors by

personnel within the  Department of Justice rather  than from

specific   accusations  relative   to  that  check   made  by

Rasmussen.  Appellants bear the  burden of proof on the issue

but  have put  forward  no  concrete  evidence to  show  that

Rasmussen gave  inaccurate or  incomplete information  to the

authorities about  this check nor  that he coerced  them into

filing the charges in question against Rivera.  Consequently,

even if appellants raised a  genuine issue regarding lack  of

                             -12-

probable cause for the charges based on the November 12, 1986

check,  appellants failed  to  raise  a  genuine  issue  over

whether  Normeat initiated or  instigated those  two charges.

Appellants would be  unable at trial to meet  their burden of

proof  on an essential element of their malicious prosecution

claim.7

          Affirmed.  Costs to appellee.                                                  

                                                    

7.  We  have considered  and find  no  merit in  the rest  of
appellants' arguments. 

                             -13-
