author: LIPEZ, Circuit Judge.

text:
    Carlos D. HERNANDEZ-CUEVAS, Plaintiff, Appellant, v. William TAYLOR; Steven W. Martz, Defendants, Appellees.
    No. 14-2247
    United States Court of Appeals, First Circuit.
    September 9, 2016
    See also 723 F.3d 91.

      Pedro R. Vázquez, III, with whom Jose F. Quetglas Jordan and Quetglas Law Offices, Santurce, PR, were on brief, for appellant.
    Leah Brownlee Taylor, Trial Attorney, with whom Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Civil Division, Rosa Emilia Rodríguez-Vélez, United States Attorney, Rupa Bhattacha-ryya, Director, Torts Branch, Civil Division, and Lisa Bhatia, Assistant United States Attorney, were on brief, for appel-lees.
    Before Torruella, Lipez, and Thompson, Circuit Judges.
   LIPEZ, Circuit Judge.

We revisit here appellant Carlos Hernandez-Cuevas’s (“Hernandez”) Fourth Amendment claim of malicious prosecution, actionable under Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, 403 U.S. 388, 91 S.Ct. 1999, 29 L.Ed.2d 619 (1971). We first encountered Hernandez’s case when defendants William Taylor and Steven Martz — both FBI special agents (“SAs”) — brought an interlocutory appeal challenging the district court’s denial of qualified immunity. See Hernandez I, 723 F.3d at 96. We affirmed, concluding that the facts alleged in Hernandez’s complaint, viewed in the light most favorable to him, stated a plausible claim that Taylor and Martz violated Hernandez’s “Fourth Amendment right to be free from seizure but upon probable cause.” Id. at 102, 105. The case returned to the district court for trial. After Hernandez presented his evidence, the court granted Taylor and Martz’s motion for judgment as a matter of law and dismissed the case with prejudice. We agree that a reasonable jury would not have a legally sufficient evidentiary basis to find for Hernandez, and we detect no other legal error in the district court’s decision. We therefore affirm.

I.

A. Factual Background

In Hernandez I — a challenge to the district court’s denial of qualified immunity — we recounted the facts as presented in Hernandez’s complaint and the documents it incorporated. 723 F.3d at 94. Here, on appeal from the district court’s judgment as a matter of law, we recount the facts based on “the evidence and reasonable inferences drawn from the evidence,” in the light most favorable to Hernandez, the nonmoving party. Malone v. Lockheed Martin Corp., 610 F.3d 16, 20 (1st Cir. 2010) (quoting Espada v. Lugo, 312 F.3d 1, 2 (1st Cir. 2002)); see also J.R. v. Gloria, 593 F.3d 73, 76 (1st Cir. 2010).

1. The Transaction

In 2003, the FBI began a multi-year investigation into an international drug and money laundering scheme that spanned New Jersey, New York, Puerto Rico, and Colombia. Agents from FBI San Juan and FBI Newark — including SAs Taylor and Martz — participated in the investigation, known as “Para Cash.” Through the course of the investigation, SAs Taylor and Martz, along with SA Luis Rodriguez, worked with a confidential informant (“informant”) to infiltrate the drug ring. SAs Taylor, Martz, and Rodriguez met in person and spoke on the phone with the informant multiple times.

In July 2004, Rodriguez, Martz, and the informant traveled to Puerto Rico for an arranged pick-up of approximately $322,000 from an unknown courier. Taylor was not in Puerto Rico at the time of the scheduled exchange. On July 20, 2004, the informant met the courier at a supermarket parking lot in Isla Verde, Carolina. Throughout the transaction, Rodriguez and Martz were hidden from view, and SA Regino Chavez observed the transaction from a distance of “fifty or more meters away ... without the aid of lenses, glasses or binoculars.”

The unidentified courier arrived alone at the meeting, driving a gray Mitsubishi Montero. The courier and the informant, who was wearing a body wire, then had a conversation about the transaction but did not exchange the money. The courier drove away, and Rodriguez and Martz debriefed the informant, who informed the SAs that the courier said he would return in a half hour. About a half hour later, the courier returned, but this time he was the passenger in a white Jeep Cherokee, driven by another unidentified individual (“the driver”). The Cherokee pulled up alongside the informant’s car so that the passenger window of the Cherokee was next to the driver’s side of the informant’s car. After the courier and the informant spoke from their cars, the courier and the driver of the Cherokee got out of their vehicle and at least one of them placed two bags of money in the trunk of the informant’s car. The driver and courier then returned to their vehicle and drove away.

FBI surveillance agents followed the Jeep Cherokee and saw the courier exit the car at 1655 Santa Ana Street and walk into the porch area of the residence. The courier was not arrested at that time. The Cherokee then continued onto a highway, after which a marked unit of the Puerto Rico Police Department conducted a traffic stop of the Cherokee, but the officers did not arrest the driver.

2. Post-Transaction Reports and Surveillance

Martz testified that he debriefed the informant following the transaction and took handwritten notes of the exchange on July 20, 2004 — the day of the transaction. The informant described the courier as “thirty-nine to forty-one (39-41) [years old], black, ... [with a] big'stomach, fat, wearing a blue shirt,” and “Puerto Rican.” In Martz’s typed FBI report, which was transcribed on August 10, the courier is described as “a fat, dark skin, Puerto Ri-can male with a big stomach, approximately 39-41 years of age, 5'10" tall wearing a light blue shirt.” Based on his surveillance of the transaction, SA Chavez also filed an FBI report that was dictated on July 30— ten days after the transaction — and transcribed on August 1. SA Chavez’s surveillance report described the courier as “Male,” “[b]lack,” “5'7",” “[h]eavy,” in his “[l]ate [fjifties,” and wearing a “[b]lue shirt and brown pants.”

Nearly six months later, at the request of FBI Newark, FBI San Juan conducted “spot check” surveillance of 1655 Santa Ana Street — the residence where the driver dropped off the courier — to identify residents of the address. According to the FBI report completed by SA Madeline Albrecht' on February 22, 2005, vehicle registration information and/or utilities checks linked five individuals to the address. Hernandez, whose gray Infiniti was parked in front of the residence and registered to its address, was the only male identified in SA Albrecht’s report. Hernandez’s car was not connected to the July 20 transaction.

On March 2, 2005, FBI Newark requested that FBI San Juan obtain a photograph of Hernandez and additional information about him. The Department of Motor Vehicles (“DMV”) provided a photo of Hernandez from the shoulders up and a description of him as male, 5'11", 40 years of age, 185 pounds, and a “medio marrón” complexion. For reader ease, the multiple FBI-recorded descriptions of the courier and the DMV description of Hernandez are provided in the chart below.

SA Martz - informant debrief, July 20, 2004 SA Martz - FBI Report, transcribed August 10, 2004 SA Chavéz - FBI Report, dictated July 30, 2004, transcribed August 1, 2004 DMV-provided description of Hernandez
Male Male Male
Black Black Dark Skin "[M]edio marrón"
Puerto Rican Puerto Rican
Heavy set; big stomach Fat; big stomach Heavy 185 pounds
~39-41 years old Approximately 39-41 years old Late Fifties 40 old years
5'10 " 5'7" 5111"
Blue shirt Wearing a light blue shirt Wearing a blue shirt and brown pants

3. The Photographic Array

After receiving the photograph and DMV description of Hernandez, SA Martz gave the photo to FBI Newark’s photo lab specialists to assemble a photographic array. Martz testified that he emailed the photo array to the informant, who was in Colombia at the time, on May 25, 2005— nearly ten months after the transaction took place. Martz and Taylor spoke with the informant over the phone the day after emailing him the photo array. When asked at trial who was physically with the informant during the identification, both Taylor and Martz testified that they believed him to be alone.

Over the phone, the informant identified the photo of Hernandez as the courier. Martz recalled asking the informant “if he was sure, and he said he was positive.” Martz asked the informant “why he was positive and he said because he had met the individual twice” on the day of the transaction — once when the courier came in the Mitsubishi Montero and the second time when he came in the Jeep Cherokee. In his handwritten notes detailing the call, Martz wrote that the informant was “very sure[,] positive!,] ... saw 2x.”

4. The Government’s Arrest, Detainment & Release of Hernandez

On the day the informant identified Hernandez as the courier, Taylor ran a background check on Hernandez that “showed there was no prior criminal record” linked to him. That same day, Taylor drafted an FBI report, which named Carlos D. Hernandez Cuevas as a courier in the Para Cash transaction.

Subsequently, Taylor assembled the materials relating to the investigation, including recordings and transcripts, and sent the information to the U.S. Attorney’s Office in Newark, New Jersey. Assistant U.S. Attorney (“AUSA”) Robert Frazer was assigned to prosecute cases arising out of the Para Cash investigation. The parties stipulated that “the decision to charge Hern[a]ndez with criminal activity was made exclusively by the Newark, New Jersey U.S. Attorney’s Office.”

In support of the criminal complaint filed against Hernandez, AUSA Frazer drafted an affidavit, which SA Taylor then signed. In the affidavit, Taylor attested that “[o]n or about July 20, 2004, in Puerto Rico, defendant CARLOS HERNANDEZ CUEVAS ... delivered approximately $321,956 in United States currency, which was the proceeds of narcotics trafficking, to [the informant].” To corroborate his identification of Hernandez as the courier, Taylor testified that he considered SA Chavez’s surveillance report, as well as the body wire transcripts, the debriefing of the informant, and the spot surveillance of the residence at 1655 Santa Ana Street, among other things.

AUSA Frazer filed a complaint and warrant request — with Taylor’s affidavit attached — for Hernandez’s arrest, and a magistrate judge issued the warrant. Pursuant to the warrant, the FBI arrested Hernandez at his home on December 3, 2007. On December 6, Hernandez appeared before a federal magistrate judge in Puerto Rico. At that point, Hernandez’s lawyer presented to the court Hernandez’s passport, “to show his presence in the Dominican Republic around the time period of the transaction.” Nevertheless, Hernandez was not granted bail or released.

Following his arrest, Hernandez was held in “federal jail” in Puerto Rico for over two months, and then transferred to a facility in Miami for two or three days, to a facility in Oklahoma for one day, and finally to a facility in New Jersey for his court appearance in the District of New Jersey on February 29, 2008. At the court appearance, AUSA Frazer asked that Hernandez be released because the government “need[ed] to do some more investigation to confirm what ... is a serious doubt as to ... the correct identity of the perpetrator in this case.” The court agreed on the condition that Hernandez surrender his passport. Later that day, Hernandez was released on his own recognizance. Two months later, the U.S. Attorney for the District of New Jersey dismissed the complaint against Hernandez.

5. Hernandez’s Background & Whereabouts in July 2004

Hernandez, who was born in the Dominican Republic, moved to Puerto Rico in 1992 to take a course organized for track and field trainers by the International Olympic Committee. When he moved to Puerto Rico, he also was an athlete member of the Dominican Republic’s National Team. After holding jobs in the construction and restaurant industries, he was appointed vice president of the Track and Field Dominican Federation abroad as well as Sports Director for the Dominican Republic, serving from the country’s consulate in Puerto Rico.

According to Hernandez, by 2004, he was working on a television program called “Evening Express.” On July 8, 2004, twelve days before the Para Cash transaction, Hernandez traveled by ferry to the Dominican Republic to cover a Central American basketball tournament for Evening Express and for the Central American Games. He also had been selected as a delegate for the Dominican Republic at the 2004 Olympic Games in Athens, Greece. Hernandez testified that he was in the Dominican Republic on July 20, 2004 — the date on which the Para Cash transaction took place in Puerto Rico — and that he left on August 13, 2004, when he flew to Greece.

B. Hernandez I

Hernandez filed suit against Martz and Taylor on March 2, 2009, alleging that they were responsible for his being held in federal custody for three months without probable cause. Hernandez I, 723 F.3d at 95-96. Taylor and Martz filed a motion to dismiss the claims against them, arguing that they were entitled to qualified immunity. Id. at 96. The district court denied the motion, Taylor and Martz filed an interlocutory appeal, and we affirmed the district court’s judgment. Id. at 93, 96.

In affirming the denial of qualified immunity, we concluded “that the Fourth Amendment protection against seizure but upon probable cause does not end when an arrestee becomes held pursuant to legal process.” Id. at 99-100. Prior to Hernandez I, our circuit had not explicitly recognized a Fourth Amendment protection that extends beyond unlawful arrest to hold law enforcement officials accountable for malicious prosecution. Id. at 97. Ordinarily, “the neutral magistrate’s determination that probable cause exists for the individual’s arrest is an intervening act that could disrupt any argument that the defendant officer had caused the continued unlawful seizure.” Id. at 100. In order to “overcome this causation problem” and show that law enforcement officers had effected a malicious prosecution, we held that the plaintiff had to demonstrate that the officers “were responsible for his continued, unreasonable pretrial detention.” Id.

Further, we found that, to succeed, a Bivens action claiming malicious prosecution in violation of the Fourth Amendment must establish the elements of a purely constitutional claim rather than the elements of a blended constitutional/common law claim, which requires a separate showing of subjective malice. Id. at 99-100. However, we noted that although “we adoptfed] a purely constitutional rather than a blended constitutional/common law approach, we believe that the practical consequences of this choice are less significant than they initially appear.” Id. at 101.

We reached this conclusion based on the Supreme Court’s decision in Franks v. Delaware, which examined whether a criminal defendant may “challenge the truthfulness of factual statements made in an affidavit supporting [a] warrant.” 438 U.S. 154, 155, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The Court held that, under the Fourth Amendment, items discovered pursuant to a search warrant may be suppressed if the defendant can show that law enforcement officers deliberately or-recMessly included in the affidavit false statements that were necessary to the finding of probable cause. Id. at 155-56, 98 S.Ct. 2674. Applying this rule in the civil context of a Fourth Amendment malicious prosecution claim, we concluded that the standard announced in Franks — requiring the plaintiff to demonstrate that statements by law enforcement officers “amounted to ‘deliberate falsehood or ... reckless disregard for the truth,’ ” Hernandez I, 723 F.3d at 102 (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674)— described “reprehensible behavior [that] seems indistinguishable from the common law element of malice,” id. In other words, a plaintiff pursuing a Fourth Amendment malicious prosecution claim must demonstrate that “[law enforcement] officers formulated evidence essential to the probable cause determination with a mental state similar to common law malice.” Id. at 101.

Having recognized a cognizable legal claim and what plaintiffs must demonstrate to establish it, we reviewed Hernandez’s complaint and determined that he had alleged a plausible claim that Taylor and Martz caused him to be held in federal custody without probable cause. Id. at 105. We thus remanded the case to the district court for further proceedings.

C. Post-Hernandez I District Court Proceedings

In district court, the parties began discovery, and Martz and Taylor moved for summary judgment. The magistrate judge denied the defendants’ motion, and the case went to trial. After the testimony of only three witnesses — Hernandez, Martz, and Taylor — Hernandez rested his case. The defendants then moved for judgment as a matter of law, under Federal Rule of Civil Procedure 50(a). A court may grant a motion for judgement as a matter of law “[i]f a party has been fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a)(1).

The magistrate judge granted the motion, concluding that “Plaintiff Hern[a]n-dez-Cuevas ha[d] failed to prove that Defendants Taylor and Martz caused a seizure of [Hernandez] pursuant to a legal process unsupported by probable cause.” Concerning the first element of a malicious prosecution claim, causation, the magistrate judge found that Hernandez had not presented any evidence to prove that Taylor and Martz “tainted or arranged” the photo array presented to the informant or that Taylor made statements in his affidavit that “amounted to ‘deliberate falsehood or reckless disregard for the truth.’ ” (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674). The magistrate judge also addressed the civil conspiracy alleged in Hernandez’s complaint and concluded that “[n]o evidence was presented of an agreement between agents Taylor and Martz to 'inflict a wrong against or injury upon [Hernandez].” Hernandez’s timely appeal followed.

II.

We review de novo a district court’s grant of a Rule 50(a) motion for judgment as a matter of law, taking the evidence in the light most favorable to the nonmovant. See Cham v. Station Operators, Inc., 685 F.3d 87, 93 (1st Cir. 2012). We review evidentiary rulings for abuse of discretion if the objecting party has preserved the issue. United States v. Peña-Santo, 809 F.3d 686, 694 (1st Cir. 2015).

A. Fourth Amendment Malicious Prosecution Claim

Hernandez argues that he provided sufficient evidence for a reasonable jury to conclude that he established malicious prosecution in violation of the Fourth Amendment. In order to establish such -a violation, Hernandez had to demonstrate that Taylor and Martz “(1) caused (2) a seizure of [Hernandez] pursuant to legal process unsupported by probable cause, and (3) criminal proceedings terminated in [Hernandez’s] favor.” Hernandez I, 723 F.3d at 101 (quoting Evans v. Chalmers, 703 F.3d 636, 647 (4th Cir. 2012)).

To satisfy the first element, causation, Hernandez was required to “demonstrate that law enforcement officers were responsible for his continued, unreasonable pretrial detention.” Id. at 100. Such responsibility may be established by showing that the officers “ma[d]e, influence[d], or participate^] in the decision to prosecute,” Sykes v. Anderson, 625 F.3d 294, 311 (6th Cir. 2010) (quoting Fox v. DeSoto, 489 F.3d 227, 237 (6th Cir. 2007)) (alterations in original), by, for example, “(1) ‘l[ying] to or misle[ading] the prosecutors’; (2) ‘fail[ing] to disclose exculpatory evidence’; or (3) ‘unduly pressur[ing] the prosecutor to seek the indictment,’ ” Hernandez I, 723 F.3d at 100 (quoting Evans, 703 F.3d at 647-48). Thus, when establishing causation, the plaintiff must demonstrate that the actions or statements of law 'enforcement officers “amounted to ‘deliberate falsehood or ... reckless disregard for the truth.’ ” Hernandez I, 723 F.3d at 102 (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674).

Hernandez argues on appeal that the photo array “created at the direction of Martz,” and “Taylor’s fabricated testimony” in his affidavit, provided “sufficient evidence ... to indicate that Defendants made representations that amounted to deliberate falsehoods or reckless disregard for the truth,” and thus caused his seizure without probable cause. We take these two allegations of wrongdoing in turn.

1. The Photographic Array

As the parties stipulated before trial, Martz provided the DMV photo of Hernandez to FBI Newark’s photo lab, and, “[cjonsistent with FBI policy, the FBI lab created a photo array which contained Hernandez’s photograph, along with five other similar looking individuals.” In Hernandez I, we concluded that

[ajlthough the complaint does not specify how the co-conspirators tainted the photo array, Hernandez-Cuevas has pled sufficient facts to support a reasonable inference that something was amiss. Specifically, Hernandez-Cuevas has alleged that rather than selecting a photograph of someone matching the description of [the courier] — short, stocky, and nearly sixty — [the informant] picked a photograph of Hernandez-Cuevas, who was tall, thin, and only forty.

723 F.3d at 104.

At trial, however, Hernandez did not present any evidence to support the allegation that the array was tainted. To the contrary, as we now know, SA Chavez’s surveillance report — which describes the courier as “short, stocky, and nearly sixty,” and does not closely resemble Hernandez, id. — was not the only available description of the courier. The record established that the DMV description of Hernandez as forty years old, 5’11", of “medio marrón” complexion, and 185 pounds, matched, at least in part, the informant’s description of the courier as approximately forty years old, 5'10", black, and having a big stomach. As the parties stipulated before trial, “FBI agents routinely rely on descriptions provided by witnesses, including [confidential informants], who have face to face interactions with the subject of investigation, given their opportunity to observe the physical characteristics of the subjects.”

Furthermore, the courier was last seen at 1655 Santa Ana Street, and SA Al-brecht’s report identified Hernandez as the only male officially associated with that address. After receiving the DMV description and the photo of Hernandez from FBI San Juan, Martz testified that he “believed we had enough evidence, based on the investigation.” Hernandez presented no evidence at trial to rebut this testimony, to establish that Martz tainted the photo array, or to establish that Martz and Taylor worked in concert with the informant to identify Hernandez.

2. Taylor’s Affidavit

As for proving that Taylor “either knowingly or with reckless disregard for the truth made [false] sworn statements in a warrant affidavit” that Hernandez was the courier, Hernandez’s case again fails. Hernandez I, 723 F.3d at 104. When initially questioned by Hernandez’s counsel at trial, Taylor testified that he “gave consideration to” SA Chavez’s surveillance report describing the courier as in his late fifties, 5'7", and heavy, but that he also looked to “the body wire [recording], the debriefing of the [informant],” as well as “the utilities check, [and] the other spot surveillance” to corroborate the statement made in his affidavit identifying Hernandez as the courier.

When cross-examined by his own attorney, Taylor stated that he believed that the description of the courier provided by the informant “matched remarkably accurately” the DMV description of Hernandez. Taylor testified that his statement in his affidavit as to his knowledge of the facts of the investigation was “[o]ne hundred percent” truthful. On re-direct, Hernandez’s attorney questioned Taylor about the August 10 transcription date of Martz’s FBI. report (detailing the informant’s description of the courier) and whether Taylor was in Puerto Rico on the date of the transaction. Neither line of questioning, however, undermined his previous testimony or provided a sufficient basis for a jury to conclude that Taylor deliberately or recklessly included false statements in his affidavit.

In light of Taylor’s unrebutted testimony, Hernandez did not establish “a legally sufficient evidentiary basis,” Fed. R. Civ. P. 50(a), for a reasonable jury to conclude that Taylor “made statements in the warrant affidavit which amounted to ‘deliberate falsehood or ... reckless disregard for the truth.’ ” Hernandez I, 723 F.3d at 102 (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674) (omission in original).

In sum, although we concluded in Hernandez I that Hernandez’s complaint provided sufficiently plausible allegations to make out a malicious prosecution Bivens claim, 723 F.3d at 102-05, the evidence that Hernandez presented at trial did not bear out his original allegations with respect to either Martz or Taylor. To the contrary, the limited evidence presented at trial revealed that the confidence of matching physical features and residence led the agents to Hernandez. Hence, the record is insufficient to permit the jury to conclude “that law enforcement officers were responsible for [Hernandez’s] continued, unreasonable pretrial detention,” as required by the causation element of a Fourth Amendment malicious prosecution claim. Id. at 100. Hence, we need not examine the remaining two elements of Hernandez’s claim.

B. The Reckless Disregard Standard

Hernandez also argues that the magistrate judge did not correctly apply the intent standard that we announced in Hernandez I. The magistrate judge found that “the evidence does not support the claims that agent Taylor made statements in the affidavit, in support of the complaint and arrest warrant against Plaintiff Hern[a]ndez-Cuevas, which amounted to ‘deliberate falsehood or reckless disregard for the truth’ ” (quoting Franks, 438 U.S. at 171, 98 S.Ct. 2674). Hernandez argues that the magistrate judge “injected into the analysis ‘malice’ which generally denotes subjective criteria,” and therefore did not follow the law of the case doctrine, which “posits that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382, 75 L.Ed.2d 318 (1983). We disagree. Simply put, the magistrate judge accurately quoted language from Hernandez I and Franks, and she properly assessed the requisite mental state.

C. Evidentiary Rulings

Hernandez argues that the magistrate judge erred when she precluded him from using the defendants’ documentary evidence. The magistrate judge’s pretrial procedure order required that “[a]ll exhibits shall be pre-marked and exchanged pri- or to trial. It shall be the responsibility of counsel, at least three (3) working days prior to the trial, to make appropriate arrangements with the courtroom deputy clerk in this respect.” At multiple points during the trial, the magistrate judge did not allow documents into evidence that Hernandez did not list as exhibits for trial, in accordance with the pretrial order. The magistrate judge emphasized that Hernandez’s failure to include the documents in the list of exhibits to be introduced at trial was “not a technicality.”

“[A] district court has broad discretion to preserve the integrity of a pretrial order,” and “an appellate court generally should not interfere with a trial court’s decision to admit or exclude evidence based on its interpretation of its own pretrial order.” Alberty-Veléz v. Corporación De Puerto Rico Para La Difusión Pública, 242 F.3d 418, 423 (1st Cir. 2001). On appeal, Hernandez does not identify the specific documents that the magistrate judge excluded or how the magistrate judge’s ruling prejudiced him at trial. He provides only a few scant citations to the trial transcript, leaving us to discern the documents excluded and the effect of their exclusion. Without more from Hernandez, we have no justification to disturb the magistrate judge’s enforcement of her own pretrial order. Moreover, even if the magistrate judge had erred, the one excluded document that we can discern from Hernandez’s trial transcript citations— Martz’s handwritten notes of the informant’s debriefing — only serves to further undermine Hernandez s case. Hence, even assuming error on the magistrate judge’s part, such error would be harmless.

Affirmed.

      . "A Bivens action is a civil action brought against agents of the United States .... 'This implied cause of action is the federal analog to § 1983 suits against state officials.’ ” Hernandez-Cuevas v. Taylor, 723 F.3d 91, 93 n.1 (1st Cir. 2013) (“Hernandez I”) (quoting Soto-Torres v. Fraticelli, 654 F.3d 153, 158 (1st Cir. 2011)).

      . Specifically, we draw the facts from the parties’ stipulations, the evidence presented at trial, and the joint appendix submitted by the parties on appeal.

      . The driver of the Mitsubishi Montero and the passenger in the Jeep Cherokee are referred to as "UNSUB #1” and "UNSUB #3,” respectively, in the FBI’s surveillance report of the transaction. However, at trial, Taylor testified that the labels "UNSUB #1” and "UNSUB #3” referred to the same individual — referred to herein as the “courier” — and that he confirmed this based on the recorded conversation obtained from the informant’s body wire. Martz also testified that the courier from the first vehicle was the same individual as the passenger in the second vehicle. Hernandez offered no evidence to rebut this testimony.

      . Hernandez testified that the dwelling was "divided into some seven (7) or eight (8) rooms and those rooms would be rented separately to different persons.”

      . Martz’s involvement in Para Cash ceased by September 2005; Taylor, however, remained assigned to the investigation.

      . Over defendants’ objection, the district court admitted Hernandez's passport into evidence, "subject to the translation being submitted properly.” On appeal, defendants argue that "the passport was not translated until this appeal and is untimely.” However, we need not consider the admissibility of Hernandez’s passport because we recite above Hernandez's testimony, presented in the light most favorable to him.

      . When analyzing an appeal from a denial of qualified immunity, we consider whether "(1) the facts alleged show the defendants' conduct violated a constitutional right, and (2) the contours of this right are 'clearly established' under then-existing law so that a reasonable officer would have known that his conduct was unlawful.” Hernandez I, 723 F.3d at 97 (quoting Santana v. Calderón, 342 F.3d 18, 23 (1st Cir. 2003)). However, in Hernandez I, the appellees declined to address the “clearly established” prong of the qualified immunity analysis. Id. We therefore limited our analysis to whether Hernandez’s claim fails under the first prong. Id.

      . Both parties consented to have a magistrate judge conduct proceedings and enter judgment in this case.

      . We note that the courier’s height was included in the August 10 FBI report but not in the informant’s description of the courier on July 20 — the date of the transaction. However, the absence of the courier’s height from the initial description does not, without more, support an inference that the height was fabricated in the August 10 report.

      . The parties stipulated before trial that Taylor was not in Puerto Rico on the date of the transaction.

      . Hernandez's civil conspiracy claim also fails. As the magistrate judge noted in her order, Hernandez alleged a civil conspiracy "in the complaint but not as a separate cause of action.” We have stated that, "[i]n order to make out an actionable conspiracy ... a plaintiff has to prove not only a conspiratorial agreement but also an actual abridgment of some federally-secured right.” Nieves v. McSweeney, 241 F.3d 46, 53 (1st Cir. 2001) (emphasis added). Hernandez did not present even circumstantial evidence that Martz and Taylor entered into a conspiratorial agreement. See Earle v. Benoit, 850 F.2d 836, 845 (1st Cir. 1988) (finding error in the district court’s directed verdict where "there was sufficient circumstantial evidence ... for a reasonable jury to have inferred a conspiracy”). Moreover, as we just concluded, he failed to establish a violation of his "Fourth Amendment right to be free from malicious prosecution.” Hernandez I, 723 F.3d at 99.

      . Hernandez asserts that the judge precluded the evidence in spite of the parties’ agreement under the joint proposed pretrial order to "use evidence announced by the other party upon good cause shown.” Hernandez, however, has not argued that he provided a showing of good cause to the magistrate judge, nor has he offered such a showing on appeal.


source: Caselaw Access Project

author: BARRON, Circuit Judge.

license: Public Domain

text:
    Luis Adrián CORTÉS-RAMOS, Plaintiff, Appellant, v. SONY CORPORATION OF AMERICA, et al., Defendants, Appellees.
    No. 15-1786
    United States Court of Appeals, First Circuit.
    September 9, 2016
    Juan R. Rodriguez, with whom Rodriguez Lopez Law Offices, P.S.C. was on brief, for appellant.
    David C. Rose, with whom Pryor Cash-man LLP, New York, NY, Jorge I. Pei-rats, and Pietrantoni Méndez & Alvarez LLC, San Juan, PR, were oh brief, for appellees.
    Before Torruella, Kayatta, and Barron, Circuit Judges.
   BARRON, Circuit Judge.

Luis Adrián Cortés Ramos (“Cortés”) appeals from the dismissal of his contract and intellectual property claims against a variety of companies affiliated with Sony Music Entertainment (“Sony”). The dispute concerns an original song and music video that Cortés submitted to Sony as part of a songwriting contest sponsored by Sony. The District Court dismissed all of Cortés’s claims. It did so on two grounds: that the claims were subject to mandatory arbitration under the Federal Arbitration Act, and that Cortés failed to allege facts sufficient to support his claims under Fed. R. Civ. P. 12(b)(6). Because Cortés has not appealed the ruling that his claims must be arbitrated, we affirm the order compelling arbitration.

I.

Cortés makes the following allegations in his complaint.

In 2013, Sony collaborated with Enrique Martin Morales, also known as “Ricky Martin,” to create a music contest in Puer-to Rico. Contestants were to submit an original song, along with an accompanying music video. Martin would perform the winner’s song at the 2014 Fédération Internationale de Football Association (“FIFA”) World Cup.

On January 2, 2014, Cortés entered the contest by submitting a music video with his original song to Sony via Sony’s website. A few weeks later, Cortés signed two contest documents — a release and an affidavit — and sent them to Sony. Cortés did not win the contest. Nonetheless, on or around April 22, 2014, Martin released a song, and music video — “Vida”—that, according to Cortés, closely resembled his own contest submission.

On July 28, 2014, Cortés filed suit in the District Court of the District of Puerto Rico. Cortés alleged that his agreement with Sony was unenforceable under Puerto Rico contract law because it was fraudulently induced by Sony. He also alleged that the agreement violated Puerto Rico trademark law and United States trademark and copyright law.

On February 12, 2015, Sony filed a motion seeking, among other things, dismissal under Fed. R. Civ. P. 12(b)(6) and, in the alternative, a stay pending arbitration under 9 U.S.C. § 3. Sony appended the “Contest Official Rules” tó its motion to dismiss. Those rules contained a mandatory arbitration clause, requiring that disputes “arising under, in connection with, touching upon or relating to” the rules be submitted to an arbitrator.

On June 10, 2015, the District Court ordered Cortés’s case dismissed “with prejudice,” J. at 1, June 10, 2015 (ECF No. 41), “pursuant to Fed. R. Civ. P. 12(b)(6),” and “direct[ed] the parties to proceed to arbitrate,” Cortés-Ramos v. Sony Corp. of Am., 108 F. Supp. 3d 18, 25, 29 (D.P.R. 2015). In doing so, the District Court rejected Cortés’s assertion that he was not bound by the arbitration clause because he had not read or received a copy of the Contest Rules. Id. at 24. The District Court found that Cortés “received, signed, notarized, and returned” an affidavit stating he had complied with the Contest Rules, and noted that “a valid agreement to arbitrate is presumed even when the signed document incorporates by reference an arbitration provision that may be found in another document, irrespective of whether the party received a copy of the document containing the clause.” Id. (internal quotation marks, brackets, and citations omitted). The District Court then determined that Cortés’s fraudulent inducement claim came within the “broad language” of the arbitration clause. Id.

Notwithstanding its rulings that the mandatory arbitration clause was both enforceable and encompassed the fraudulent inducement claims, however, the District Court also addressed the substance of the claims. Specifically, it concluded that Cortés “failed to make a cognizable claim that the Contest [Official] Rules constitute a voidable contract under Puerto Rico law because he entered into it as a result of deceit.” Id. at 25.

II.

On appeal, Cortés argues that the District Court erred in ruling that he failed to allege facts sufficient to support his fraudulent inducement claim. But Cortés does not appeal the District Court’s separate rulings that the mandatory arbitration clause is enforceable and that this clause encompasses his fraudulent inducement claim. Because those rulings provide an independent basis for dismissing his claims, we need not address Cortés’s challenge to the District Court’s decision to dismiss his complaint on 12(b)(6) factual sufficiency‘grounds. We do, however, wish to repeat our previously articulated caution that “[a] court compelling arbitration should decide only such issues as are essential to defining the nature of the forum in which a dispute will be decided.” Thompson v. Irwin Home Equity Corp., 300 F.3d 88, 91 (1st Cir. 2002) (quoting Larry’s United Super, Inc, v. Werries, 253 F.3d 1083, 1085 (8th Cir. 2001)).

Cortés’s next challenge to the District Court’s order of dismissal is that the District Court erred by ruling on Sony’s motion to dismiss before the court’s deadline for permitting Cortés to file a sur-reply had elapsed. But Cortés does not posit a standard of review for assessing whether the District Court erred, cites no authority to support his contention that the District Court did err, and makes no argument as to how any error affected the District Court’s decision to send Cortés’s claims to arbitration. Nor is such an argument regarding possible prejudice apparent to us. Consequently, we conclude that this contention is too undeveloped to warrant further scrutiny. See United States v. Zannino, 895 F.2d 1, 17 (1st Cir. 1990).

Cortés also appears to contend — though he does not list this contention in his statement of the issues — that the District Court erred by not permitting discovery before dismissing the case. But Cortés makes no argument as to how the District Court’s refusal to permit discovery undermines the District Court’s ruling that his claims must be dismissed because they must be arbitrated, a ruling that Cortés has not appealed. Accordingly, we need not address this aspect of Cortés’s challenge either.

Finally, Cortés contends that the District Court erred in dismissing his case with prejudice. Given that the District Court, in dismissing the case, ruled that the claims were subject to mandatory arbitration, we agree that “[t,]his is a peculiar use of the phrase ‘with prejudice.’ ” Next Step Med. Co. v. Johnson & Johnson Int’l, 619 F.3d 67, 71 (1st Cir. 2010)’ (citing Alford v. Dean Witter Reynolds, Inc., 975 F.2d 1161, 1164 (5th Cir. 1992)); see also Cont’l Cas. Co. v. Am. Nat’I Ins. Co., 417 F.3d 727, 732 (7th Cir. 2005) (noting that there is a split in authority as to how courts characterize dismissal on arbitrability grounds, with some courts treating the dismissal as jurisdictional and thus pursuant to Rule 12(b)(1); other courts treating the dismissal as “failure to state a claim cognizable in federal court” and thus pursuant to Rule 12(b)(6); and still others treating the dismissal as “entirely separate from the Rule 12(b) rubric”). But, even if peculiar, the District Court’s use of “with prejudice” is “not without precedent.” Next Step, 619 F.3d at 71. We thus affirm the order of dismissal. See id. at 71-72 (affirming dismissal with prejudice of claim deemed subject to arbitration). We note, however, that, in light of the District Court’s order compelling arbitration, Cortés’s claims “ha[ve] not been extinguished but [have been] merely left to the arbitrator.” Id. at 71.

HI.

For the reasons given, we affirm the District Court’s order compelling arbitration..

      . Ricky Martin was originally a defendant in the suit. Martin was voluntarily dismissed from the suit, however, on March 27, 2015.

      . Cortés contends that the District Court erred by dismissing his case pursuant to Fed. R. Civ. P. 12(b)(2) and (b)(3). As the District Court did not dismiss Cortés’s complaint on these bases, this contention is without merit.


author: SELYA, Circuit Judge.

text:
    Janarius Elanjwe NANJE, Petitioner, Appellant, v. Luis CHAVES, Lawrence Field Office Director, United States Citizenship and Immigration Services, et al., Respondents, Appellees.
    No. 15-2254
    United States Court of Appeals, First Circuit.
    September 9, 2016

      Todd C. Pomerleau, Boston, MA, with whom Rubin Pomerleau P.C. was on brief, for appellant.
    Emma C. Winger and Wendy S. Wayne, Cambridge, MA, on brief for the Massachusetts Committee for Public Counsel Services Immigration Impact Unit and the National Immigration Project of the National Lawyers Guild, amici curiae.
    Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellees.
    Before Torruella, Selya and Thompson, Circuit Judges.
   SELYA, Circuit Judge.

The lead-in to a serialized radio program, wildly popular in the mid-1900s, warned that “the weed of crime bears bitter fruit.” In his quest for naturalization (which rests at the epicenter of this appeal), the petitioner has learned that hard lesson at first hand. The tale follows.

I. BACKGROUND

Petitioner-appellant Janarius Elanjwe Nanje is a native of Cameroon who has been a lawful permanent resident of the United States since 2002. In March of 2005, he was charged in a Massachusetts court with two counts of filing false health care claims, one count of larceny, and one count of attempted larceny all in violation of various Massachusetts statutes.

The record reflects that the appellant submitted a claim to Harvard Pilgrim Health Care (Harvard Pilgrim) for reimbursement of medical expenses allegedly incurred during a trip to Cameroon. Harvard Pilgrim took the appellant at his word and paid him $11,965 without investigating his claim. When the appellant submitted a second claim for an even larger sum, however, Harvard Pilgrim investigated and, with the help of a federal agent stationed in Cameroon, determined that the appellant had not received any of the care for which reimbursement was sought. The second claim was denied, the first claim was deemed fraudulent, and the matter was turned over to the authorities.

The appellant ultimately pleaded guilty to one count of filing a false health care claim, in violation of Mass. Gen. Laws ch. 175H, § 2; one count of larceny, in violation of Mass. Gen. Laws ch. 266, § 30(1); and one count of attempted larceny, in violation of Mass. Gen. Laws ch. 274, § 6. The Boston Municipal Court (the BMC) continued the case for nine months without a finding and ordered the appellant to pay $12,000 in restitution. The court did not allocate the restitution among the counts of conviction. By April of 2006, the appellant had paid the full restitution amount and his case was dismissed.

In the meantime, the appellant had filed a petition for naturalization with the appropriate agency, United States Citizenship and Immigration Services (USCIS). He was scheduled to attend a naturalization hearing in 2011 but — having been advised that his criminal record not only might thwart his quest for naturalization but also might render him deportable — he withdrew his application before any hearing was held.

Faced with this unwelcome prospect, the appellant tried in various ways to revise his criminal record. We chronicle only those efforts that are relevant to this appeal.

In December of 2010, the appellant (represented by new counsel) moved in the BMC to vacate his admission to sufficient facts. He maintained that his lawyer had failed to inform him of the immigration consequences of his plea, thus depriving him of the effective assistance of counsel. See Padilla v. Kentucky, 559 U.S. 356, 366-69, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010); see also Commonwealth v. Saferian, 366 Mass. 89, 315 N.E.2d 878, 882-83 (1974). The BMC denied the motion, concluding that even if counsel’s performance was objectively unreasonable, no cognizable prejudice resulted. The appellant eschewed any appeal of this adverse ruling.

Early in 2012, the appellant moved to amend the sentence in the criminal case. That motion sought an order to the effect that the $12,000 restitution amount should be considered equally divided between the false health care and larceny counts. “[R]e-arranging the restitution amount amongst the counts in the complaint,” the appellant asserted, would protect his ability to become a naturalized citizen because the amount of restitution paid with respect to the false health care count would be less than $10,000. In July of 2012, the BMC entered a one-line order allowing the appellant’s motion to clarify the docket with respect to the amount of restitution that applied to each count.

With this supplementary order in place, the appellant again applied for naturalization. USCIS denied this renewed application in March of 2013. It concluded that the appellant had been convicted of an aggravated felony (the false health care charge) and was therefore unable to demonstrate good moral character — a prerequisite for naturalization. See 8 U.S.C. § 1101(a)(43)(M)(I) (classifying as an aggravated felony any offense that involves fraud or deceit in which the loss to the victim exceeds $10,000). Although USCIS acknowledged that the BMC had subsequently split the appellant’s restitutionary obligation evenly between the false health care and larceny counts, it nevertheless determined that the record reflected a loss to the victim of the false health care claim of more than $10,000.

In response, the appellant requested a hearing before the agency. After the hearing was held — but before USCIS issued its final decision — the appellant returned to the BMC and filed yet another motion in November of 2013. This motion sought to “clarify” his sentence, asking the court to specify that the total amount of loss attributable to the false health care charge was no more than $6,000 and that this sum was separate and distinct from the amount of loss attributable to the larceny charge. The court obliged, signing an order to that effect in January of 2014 (the 2014 Order).

That same month, USCIS again denied the appellant’s petition for naturalization. In so ruling, USCIS reiterated that the record established that the appellant had been convicted of an aggravated felony. In its view, then, the appellant remained ineligible for naturalization.

The appellant did not go quietly into this bleak night. Instead, he filed a petition for judicial review in the federal district court. See 8 U.S.C. § 1421(c). The parties agreed to proceed before a magistrate judge. See 28 U.S.C. § 636(c); Fed. R. Civ. P. 73(a). In due course, they cross-moved for summary judgment.

In his motion, the appellant argued that his petition for naturalization had been improperly rebuffed because — even though he had been convicted of a crime of fraud or deceit — the 2014 Order established that the amount of loss to the victim of that crime was less than $10,000. The government demurred, arguing that the totality of the circumstances plainly supported US-CIS’s finding that the amount of loss to the victim (Harvard Pilgrim) exceeded $10,000. Following oral argument, the court denied the appellant’s motion and granted the government’s motion. See Nanje v. Chavez, 134 F.Supp.3d 544, 556 (D. Mass. 2015). This timely appeal ensued.

II. ANALYSIS

The statutory provision that authorizes judicial review of USCIS’s decision entitled the appellant to de novo review in the district court. See 8 U.S.C. § 1421(c); see also Aparicio v. Blakeway, 302 F.3d 437, 445 (5th Cir. 2002). We, in turn, afford de novo review to the district court’s entry of summary judgment in favor of the government in this naturalization case. See Kariuki v. Tarango, 709 F.3d 495, 501 (5th Cir. 2013); Chan v. Gantner, 464 F.3d 289, 292 (2d Cir. 2006) (per curiam). The conventional summary judgment paradigm requires the moving party to show that “there is no genuine dispute as to any material fact” and that he is “entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). A reviewing court reads the record in the light most hospitable to the non-moving party and draws all reasonable inferences in his favor. See Gomez v. Stop & Shop Supermkt. Co., 670 F.3d 395, 396 (1st Cir. 2012).

Here, the parties quarrel over whether this conventional framework applies in the naturalization context. The appellant asserts that it does. The government disagrees, noting that “it has been universally accepted that the burden is on the alien applicant to show his eligibility for citizenship in every respect.” Berenyi v. Dist. Dir., INS, 385 U.S. 630, 637, 87 S.Ct. 666, 17 L.Ed.2d 656 (1967). It adds that “doubts should be resolved in favor of the United States and against the claimant.” Id. (internal quotation marks omitted).

We need not resolve this contretemps. The parties agree on the facts, and neither has suggested that any additional facts outside the existing record bear on the salient issues. Moreover, in this case all roads lead to Borne: even if we assume, favorably to the appellant, that all reasonable inferences are to be drawn in his favor, his appeal fails.

The INA provides that “[n]o person ... shall be naturalized” unless he can show that he is “a person of good moral character.” 8 U.S.C. § 1427(a)(3); see Berenyi, 385 U.S. at 636-37, 87 S.Ct. 666. Persons who have been convicted of aggravated felonies are categorically disqualified from attempting to-show good moral character. See 8 U.S.C. § 1101(f)(8). An aggravated felony is an offense that “involves fraud or deceit in which the loss to the victim or victims exceeds $10,000.” Id. § ,1101(a)(43)(M). Filing a false health care claim is therefore considered a crime of fraud or deceit. See Kawashima v. Holder, — U.S. -, 132 S.Ct. 1166, 1172, 182 L.Ed.2d 1 (2012) (explaining that crimes that “necessarily entail fraudulent or deceitful conduct” fall within this statutory taxonomy).

It is undisputed that the appellant was convicted of a crime involving fraud or deceit (namely, filing a false health care claim). The critical issue here is whether the loss attributable to that crime exceeded $10,000. The appellant argues that, in resolving this issue, USCIS was required to give the 2014 Order dispositive weight and erred in looking beyond this order. We do not agree.

The beacon by which we must steer is the Supreme Court’s decision in Nijhawan v. Holder, 557 U.S. 29, 129 S.Ct. 2294, 174 L.Ed.2d 22 (2009). There, the Court fashioned a circumstance-specific approach for determining whether a particular crime of fraud or deceit caused losses greater than $10,000. See id. at 36-38, 129 S.Ct. 2294. The Court started with the premise that the INA’s monetary threshold could be crossed even if a particular crime did not require a loss of $10,000 or more as an element of the offense. See id. at 38-40, 129 S.Ct. 2294. “Rather, the monetary threshold applies to the specific circumstances surrounding an offender’s commission of a fraud and deceit crime on a specific occasion.” Id. at 40, 129 S.Ct. 2294. Thus, a court tasked with assessing the amount of loss must consider not only findings of fact made by juries and judges but also other facts in the record. See id.

Employing Nijhawan’s circumstance-specific approach, it is luminously clear that Harvard Pilgrim’s loss was greater than $10,000. After all, only a single false claim was honored — and that claim, on its face, was for more than $10,000. Moreover, the record shows! without any hint of contradiction, that Harvard Pilgrim paid the appellant $11,965 in satisfaction of that fraudulent claim for reimbursement. In addition, the record shows that Harvard Pilgrim later paid around $8,000 to invests gate the appellant’s fraudulent claims. To cap matters, the appellant admitted to essentially these facts when he entered his guilty plea, and he indicated a willingness at that time to pay a full $20,000 in restitution.

Given this historical record, we cannot fault USCIS’s determination that the appellant’s false health care claim caused more than $10,000 in losses. Indeed, the totality of the relevant circumstances admits of no other reasonable conclusion.

The appellant protests this circumstance-specific approach and labors to distinguish Nijhawan. His case is distinguishable, he submits, because the BMC’s 2014 Order found a specific amount of loss. In his view, the Full Faith and Credit Clause, U.S. Const, art. IV, § 1, and its implementing statute, 28 U.S.C. § 1738, demand that USCIS ignore the other circumstances and give dispositive weight to the BMC’s statement.

The appellant, cites no authority — • and we are aware of none — for the proposition that the Full Faith and Credit Clause compels a federal court (or a federal agency, for that matter) to give nonessential findings of fact in state court proceedings conclusive weight. We reject that ambitious proposition and hold that the 2014 Order is but one circumstance to be considered in the circumstance-specific analysis that Nijhawan requires.

The appellant gains no traction through his reliance on our decision in Rodriguez v. INS, 204 F.3d 25 (1st Cir. 2000). In Rodriguez, we upheld a decision of the Board of Immigration Appeals (the BIA) ordering an alien’s removal due to marriage fraud. See id. at 26. The BIA had relied, inter alia, on a state court’s annulment of the alien’s marriage based on a finding of fraudulent intent to evade the immigration laws. See id. at 28. In denying the alien’s petition for review, we observed that the state court’s judgment terminating the alien’s marriage was entitled to full faith and credit and that the finding within it (that the alien had engaged in marriage fraud) was a “presumption plus.” See id. We were careful, however, to note that the factual finding was not entitled to disposi-tive weight. See id. The same is true here.

Nor does the inclusion of the 2014 Order in the mix of relevant circumstances tip the decisional scales. The BMC entered the 2014 Order years after the crime was committed, years after the appellant pled guilty, years after the nine-month continued-without-a-finding period had elapsed, years after the appellant had paid the full restitution amount, and years after the criminal case had been dismissed. There was no longer anything at stake in the criminal case, and the BMC’s statements about amount of loss were not essential, to either its judgment of conviction or any outstanding restitution order. Rather — in the appellant’s own words — those statements were “purely administrative.” We reject the notion that non-essential statements of fact in an order issued years after a defendant’s sentence has been imposed and carried out are entitled to dis-positive weight in the Nijhawan circumstance-specific calculus.

If more were needed — and we doubt that it is — -the case at hand fits neatly alongside our opinion in Conteh v. Gonzales, 461 F.3d 45 (1st Cir. 2006). There, we stated that “when a restitution award has been artificially manipulated for the sole purpose of influencing an alien’s immigration status, that award is not controlling with respect to the amount of loss.” Id. at 61-62. The record here shows unmistakably that the appellant filed the series of post-conviction motions soleiy to (in his lawyer’s words) “allow him to pursue his desire to become a U.S. citizen.” These motions were filed years after his criminal case was closed and his restitution obligation satisfied. The BMC’s further orders were useful to the appellant (if at all) only insofar as they might affect his immigration status. To deny that these maneuverings were anything but artificial manipulations of his restitution record would be to blink reality.

We summarize succinctly. Our review of the record convinces us that USCIS properly undertook a circumstance-specific analysis and, in the course of that analysis, appropriately discounted the appellant’s attempts at revisionist history. We discern no error: giving dispositive weight to nunc pro tunc orders entered by state courts years after the fact — orders that do not fairly address the issues in the state case — would afford state courts carte blanche to shield defendants from federal immigration laws with the stroke of a pen. That is not the law. Cf. Fierro v. Reno, 217 F.3d 1, 6 (1st Cir. 2000) (noting that “Congress’ rules for naturalization must be applied as they are written, and a state court has no more power to modify them on equitable grounds than does a federal court or agency”).

III. CONCLUSION

We need go no further. In the case at hand, the record compels the conclusion that the appellant’s fraud-and-deceit crime caused a loss to the victim of more than $10,000. It follows inexorably that both USCIS’s denial of naturalization and the district court’s approval of that denial are impervious to the appellant’s attack.

Affirmed.

      . This final count was charged under the general attempt statute. Throughout, however, the parties have described the offense as attempted larceny.

      . A continuance without a finding occurs when the defendant agrees to satisfy particular terms during a probationary period without an express finding of guilt. See United States v. Mensah, 737 F.3d 789, 793 n.4 (1st Cir. 2013) (citing Mass. Gen. Laws ch. 278, § 18). As long as the defendant satisfies the imposed terms, his case will be dismissed when the probationary period expires. See id. The BMC's continuance without a finding nonetheless serves as a conviction for present purposes: where, as here, an alien admits “sufficient facts to warrant a finding of guilt” and a judicial officer orders some form of punishment, the Immigration and Nationality Act (INA) treats the matter as a conviction. See 8 U.S.C. § 1101(a)(48)(A); Herrera-Inirio v. INS, 208 F.3d 299, 304 (1st Cir. 2000).

      . One impetus for this motion was the appellant’s apparent concern that the earlier order of the BMC might be disregarded by USCIS because it dealt with "restitution” rather than "amount of loss.” See, e.g., Munroe v. Ashcroft, 353 F.3d 225, 227 (3d Cir. 2003) (acknowledging that restitution amounts might not reflect amount of loss).

      . Given that all of the pertinent facts were before the district court on the cross-motions for summary judgment, it would have been prudent for the court to advise the parties that it planned to decide the case as a case stated. See, e.g., TLT Constr. Corp. v. RI, Inc., 484 F.3d 130, 135 n.6 (1st Cir. 2007); EEOC v. Steamship Clerks Union, Local 1066, 48 F.3d 594; 603 (1st Cir. 1995); see also Pac. Indem. Co. v. Deming, 828 F.3d 19, 22, 2016 WL 3607028 (1st Cir, 2016) [No. 15-2386], ]That course of action would have rendered irrelevant any question about the contours of the summary judgment standard in a naturaliza-lion case.

      . In contrast, larceny is not considered a crime of fraud or deceit. See De Vega v. Gonzales, 503 F.3d 45, 49-50 (1st Cir. 2007). That is presumably why the appellant made so determined an effort to allocate a substantial portion of the loss to the larceny charge.

      . Of course, the situation might be different if the federal government had been a party to the state court proceedings such that principles of claim preclusion or issue preclusion applied. See, e.g., R.G. Fin. Corp. v. Vergara-Nuñez, 446 F.3d 178, 182-83 (1st Cir. 2006). Those principles are inapposite here.

      . Throughout, the appellant, supported by the amici, has suggested that reliance on the original record of his conviction is especially problematic because he received ineffective assistance of counsel in the plea-bargaining process. See, e.g., Padilla, 559 U.S. at 366-69, 130 S.Ct. 1473. But the BMC has already addressed this claim head-on and found it wanting. The appellant chose not 'to appeal the BMC's decision. Consequently, the Padilla question cannot be revisited here. See Gouveia v. INS, 980 F.2d 814, 817 (1st Cir. 1992) ("Criminal convictions cannot be collaterally attacked during immigration proceedings.”).