Marshall v. Randall, No. 12-2479 (2d Cir. 2013)
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Defendants appealed the district court's judgment of liability after a jury found them liable for false arrest, malicious prosecution, and violation of plaintiff's right to a fair trial. The court concluded that jury instructions adequately reflected the holding in Rehberg v. Paulk and mitigated the prejudicial impact of the opening and closing statements; the district court's instruction referencing the favorable termination of the prosecution without further elaboration was not a basis for reversal or a new trial; and the district court's exclusion of recognition evidence did not merit a new trial. Accordingly, the court affirmed the judgment.
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12-2479-cv Marshall v. Randall 1 UNITED STATES COURT OF APPEALS 2 FOR THE SECOND CIRCUIT 3 August Term 2012 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 (Argued: March 8, 2013 Decided: June 12, 2013) Docket No. 12-2479-cv -----------------------------------------------------x JOSHUA MARSHALL, Plaintiff-Appellee, -- v. P.O. SALIM RANDALL, Shield No. 15331, Individually and in His Official Capacity, P.O. MICHAEL BURBRIDGE, Shield No. 15488, Individually and in His Official Capacity, Defendants-Appellants, THE CITY OF NEW YORK, JOHN DOE, P.O. s #1-10 Individually and in Their Official Capacities, (the name John Doe being fictitious, as the true names are presently unknown), Defendants. -----------------------------------------------------x B e f o r e : WALKER, LYNCH, and CARNEY, Circuit Judges. Defendants-Appellants Salim Randall and Michael Burbridge 29 appeal from the 2012 judgment of liability of the United States 30 District Court for the Eastern District of New York (Weinstein, 31 Judge). 32 liable for false arrest, malicious prosecution, and violation of 33 Joshua Marshall s right to a fair trial. 34 damages of $95,000 each. 35 district court s trial rulings. After a jury trial, Defendants-Appellants were found They were ordered to pay We hold that there was no error in the AFFIRMED. 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 JON L. NORINSBERG (Gerald M. Cohen, Joshua P. Fitch, Cohen & Fitch LLP, on the brief), New York, NY, for Plaintiff-Appellee. AVSHALOM YOTAM (Francis F. Caputo, Karen M. Griffin on the brief), of counsel to Michael A. Cardozo, Corporation Counsel of the City of New York, New York, NY, for Defendants-Appellants. JOHN M. WALKER, JR., Circuit Judge: Defendants-Appellants Salim Randall and Michael Burbridge 16 appeal from the 2012 judgment of liability of the United States 17 District Court for the Eastern District of New York (Weinstein, 18 Judge). 19 liable for false arrest, malicious prosecution, and violation of 20 Joshua Marshall s right to a fair trial. 21 damages of $95,000 each. 22 district court s trial rulings and affirm the judgment. After a jury trial, Defendants-Appellants were found 23 24 They were ordered to pay We hold that there was no error in the BACKGROUND We assume the parties familiarity with the underlying facts 25 and procedural history and recite only those details relevant to 26 this appeal. 27 On May 15, 2008, Marshall was arrested in Brooklyn by Police 28 Officers Randall, Burbridge, and Kieran Fox (who is not a defendant 29 in this case). 30 man, Demetrios Meade, when they were approached by the officers. 31 As the officers drew near, one of the men threw away a gun, which Marshall was walking down a sidewalk with another 2 1 landed in the street. 2 of possessing a loaded firearm. 3 district attorney resulted in a criminal complaint against 4 Marshall, and their testimony to a grand jury led to Marshall s 5 indictment. 6 months in jail. 7 jail, the judge dismissed Marshall s case on speedy trial grounds. 8 Marshall then sued Randall and Burbridge under 42 U.S.C. 9 The officers arrested Marshall on the charge Their statements to the local Marshall was released in September 2008 after four Approximately eight months after his release from § 1983 for false arrest, malicious prosecution, and denial of his 10 constitutional right to a fair trial. 11 claim was that the officers lied when they said they had seen 12 Marshall throw the gun. 13 as part of his direct case and cross-examined them as hostile 14 witnesses. 15 officers credibility based on inconsistencies in their accounts of 16 the events on the night of the arrest. 17 The essence of Marshall s At trial, Marshall called the two officers Marshall s strategy at trial was to attack the The initial police complaint and arrest report, filled out by 18 Randall, indicated only that Marshall was found to be in 19 possession of a loaded firearm. 20 criminal complaint filed by the Kings County District Attorney s 21 office similarly stated that Randall observed the defendant in 22 possession of a loaded .38 Caliber Smith and Wesson revolver. 23 at 104 (Crim. Ct. Compl.). 24 that Marshall pulled a firearm out of his waist[band] and tossed J.A. 85 (Police Compl.). The Id. Randall testified to the grand jury 3 1 it into the street. 2 deposition, Randall testified that he saw Marshall in physical 3 possession of the pistol [w]hen he reached into his pants and 4 pulled out an object and threw it to the ground. 5 Tr.). 6 gun in Marshall s actual physical possession, id. at 1001 (Trial 7 Tr.), but that he saw the motion, . . . [and] heard the clink when 8 it hit the ground, id. at 1003 (Trial Tr.). 9 Id. at 129-30 (Grand Jury Tr.). At his Id. at 571 (Dep. At trial, however, Randall admitted that he never saw the The evidence against Burbridge was similar. The criminal 10 complaint stated that Burbridge recovered [the] revolver from the 11 ground where [Burbridge] observed the defendant throw it. 12 104 (Crim. Ct. Compl.). 13 he observed Mr. Marshall remove what appeared to be a silver 14 firearm from his waist[band] and throw it under a vehicle. 15 123-24 (Grand Jury Tr.). 16 testified that he could not remember from which part of his 17 waistband Marshall pulled the gun, but at trial he testified that 18 Marshall pulled the gun from the center of his waistband. 19 Burbridge also gave conflicting deposition testimony about whether 20 he saw Marshall make a furtive movement before his decision to 21 approach Marshall and Meade, or whether that decision had been 22 based entirely on his recognition of Marshall from a NYPD database 23 of police and arrest reports. Id. at Burbridge testified to the grand jury that Id. at At his pre-trial deposition, Burbridge 4 1 The jury found Randall and Burbridge liable on all three 2 counts and awarded $95,000 in compensatory and punitive damages 3 against each officer. 4 This appeal followed. DISCUSSION 5 Randall and Burbridge challenge three elements of the district 6 court s trial rulings: (1) the use of their grand jury testimony as 7 violative of the rule in Rehberg v. Paulk, 132 S. Ct. 1497 (2012); 8 (2) the lack of a jury instruction disclosing that Marshall s 9 criminal case was dismissed on speedy trial grounds; and (3) the 10 exclusion from trial of evidence that Burbridge stopped Marshall in 11 part because he recognized Marshall from a review of NYPD arrest 12 reports. 13 1. Use of Grand Jury Testimony 14 Citing Rehberg, Randall and Burbridge argue that their grand 15 jury testimony, admitted for impeachment purposes, was improperly 16 used by Marshall as a basis for liability. 17 the use of grand jury testimony for impeachment did not violate 18 Rehberg s holding that a grand jury witness has immunity from a 19 malicious prosecution action based on the witness s grand jury 20 testimony. 21 admitted for impeachment purposes and that the manner in which it 22 was used at trial did not contravene the rule in Rehberg. 23 24 Marshall responds that We hold that the grand jury testimony was properly We review the district court s evidentiary rulings for abuse of discretion and will reverse only if an erroneous ruling 5 1 affected a party s substantial rights. Marcic v. Reinauer Transp. 2 Cos., 397 F.3d 120, 124 (2d Cir. 2005). In general, a party is 3 entitled to a new trial if the district court committed errors that 4 were a clear abuse of discretion that were clearly prejudicial to 5 the outcome of the trial, where prejudice is measured by 6 assessing the error in light of the record as a whole. 7 (quotation marks omitted). 8 if it base[s] its ruling on an erroneous view of the law or on a 9 clearly erroneous assessment of the evidence. 10 11 Id. A district court abuses its discretion In re Sims, 534 F.3d 117, 132 (2d Cir. 2008) (quotation marks omitted). In Rehberg, the chief investigator for a local district 12 attorney was sued in a § 1983 action following Rehberg s indictment 13 based on the investigator s grand jury testimony. 14 Court held that a grand jury witness has absolute immunity from 15 any § 1983 claim based on the witness testimony. 16 Ct. at 1506. 17 immunity for trial witnesses also applied to grand jury witnesses: 18 In both contexts, a witness fear of retaliatory litigation may 19 deprive the tribunal of critical evidence. 20 is the deterrent of potential civil liability needed to prevent 21 perjurious testimony. 22 U.S. 325 (1983) (establishing trial witness immunity). 23 also noted that the subversion of grand jury secrecy was an 24 additional supporting factor. The Supreme Rehberg, 132 S. It reasoned that the justifications for absolute And in neither context Id. at 1505; see also Briscoe v. LaHue, 460 Id. at 1509. 6 The Court 1 This case asks us to consider what the Supreme Court meant by 2 any § 1983 claim based on the witness testimony. 3 (emphasis added). 4 malicious prosecution liability was predicated exclusively on the 5 allegations that the investigator lied to the grand jury. 6 case, Marshall presented evidence of grand jury testimony, along 7 with (among other things) the police report, the officers 8 statements to the district attorney as reflected in the criminal 9 complaint, and the inconsistencies in deposition and trial Id. at 1506 In Rehberg, the plaintiff s assertion of § 1983 In this 10 testimony. 11 grand jury testimony for impeachment purposes and the references to 12 the grand jury testimony during opening and closing statements in 13 this § 1983 action nonetheless caused the action to be based on 14 the witness s grand jury testimony. 15 We must determine whether the use of the officers Turning first to the use of grand jury testimony for 16 impeachment, we agree with the district court that such use does 17 not violate Rehberg. 18 is frequently permitted for impeachment purposes. 19 United States v. Griffith, 385 F.3d 124, 126-27 (2d Cir. 2004) 20 (noting that there is a distinction between using evidence to 21 prove substantive guilt and using evidence to impeach and 22 collecting cases); see also Harris v. New York, 401 U.S. 222, 225- 23 26 (1971) (holding that a statement made by a defendant to police 24 in violation of Miranda is inadmissible as direct evidence but Evidence that is inadmissible as direct proof 7 See, e.g., 1 admissible for impeachment purposes). 2 upon to distinguish between proper and improper purposes of 3 testimony. 4 And juries are often called When Marshall questioned the officers as hostile witnesses, 5 their grand jury testimony was admitted only to attack their 6 credibility. 7 instruction that this testimony could not be a basis for liability: 8 A defendant cannot be held liable for what he said to the grand 9 jury. The district court was explicit in its jury He may be held liable for what he said to the prosecutor if 10 his statement was not in preparation for his grand jury testimony. 11 J.A. 1218 (Trial Tr.). 12 not follow this instruction. 13 F.3d 52, 59 (2d Cir. 2002) ( Absent evidence to the contrary, we 14 must presume that juries understand and abide by a district court s 15 limiting instructions. ) (citing Zafiro v. United States, 506 U.S. 16 534, 540-41 (1993)). 17 impeach the officers did not violate Rehberg and is not grounds for 18 reversal.1 1 We have no reason to believe the jury did See United States v. Downing, 297 Therefore, the use of grand jury testimony to We are mindful of the potential for jury confusion in a case such as this, in which the underlying factual subject of the grand jury testimony used to impeach the defendants - which could not be used as a direct basis for suit under Rehberg - is the same as the factual subject that underlies the suit and the previous prosecution. In this case, that would be whether the police officers actually saw Marshall in possession of a gun. Plainly, there would be no such potential for confusion had the officers given conflicting statements as to a collateral matter, such as how brightly the street was lit on the night of the arrest. We believe that the risk of jury confusion was adequately reduced, however, by 8 1 Marshall s use of this testimony was not limited to cross- 2 examining the witnesses, however. 3 summation, Marshall made references to the grand jury testimony 4 that were not self-limiting as purely for impeachment purposes. 5 These references in the summation included the following: 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 In both his opening and Now, if he never saw this object in the physical possession of Mr. Marshall, why did he swear under oath to a grand jury that he did see it? I mean, those two stories aren t true; either you saw it, or you didn t. . . . What he told that grand jury is a lie. . . . When [Burbridge] appeared before the grand jury, one story. When he appeared in the civil lawsuit, another story. . . . They duped it and put it over on the grand jury with these false stories. . . . You can send a message through your verdict . . . to any other police officer out there that thinks it s okay to get in front of a grand jury and lie. J.A. 1206, 1207, 1210, 1211 (Trial Tr.). The defendants argue that these comments demonstrate that plaintiff s § 1983 claim for malicious prosecution was based on the district court s instructions and the substantial amount of evidence supporting Marshall s direct case independent of the grand jury testimony. 9 1 the witness testimony [before the grand jury], Rehberg, 132 S. 2 Ct. at 1506. 3 find the question to be close, on balance, we believe that the 4 district court s limiting instructions to the effect that the 5 jury could not base liability on the grand jury testimony - 6 sufficiently alleviated any prejudice to the point that a new trial 7 is not required.2 8 9 This argument is not without some force. Although we As we noted earlier, after the closing statements, the district court instructed the jury that a defendant cannot be held 2 We note that while the jury was deliberating, Marshall s counsel ascribed two purposes for his references in summation to the defendants grand jury testimony: to overcome the presumption [of probable cause created by the indictment], one, and two, to address the general issues of credibility. J.A. 1308 (Trial Tr.). In Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), we stated that [w]here there is some indication in the police records that, as to a fact crucial to the existence of probable cause, the arresting officers may have lied in order to secure an indictment, and a jury could reasonably find that the indictment was secured through bad faith or perjury, the presumption of probable cause created by the indictment may be overcome. Id. at 162 (quoting Boyd v. City of New York, 336 F.3d 72, 77 (2d Cir. 2003)). The district court suggested that Rehberg might cast doubt on the continued vitality of Manganiello, but noted that defense counsel had not asked for an instruction limiting the grand jury references to credibility during his adversary s summation but that had counsel done so, the district court would have given it, see J.A. 1309 (Trial Tr.). When the court opined that it was now too late for the instruction, see id., defense counsel did not take issue with that view. Marshall and Burbridge recognize this tension in their brief on appeal, but do not advance a completed argument on this basis, so we do not consider how Rehberg affects our holding in Manganiello. 10 1 liable for what he said to the grand jury, and that [t]he 2 opening[s] and closings are not evidence. 3 (Trial Tr.). 4 district court told the jury: Id. at 1218, 1217 And, after the jury had begun its deliberations, the 5 6 7 8 9 10 11 Id. at 1312 (Trial Tr.). 12 judge s instruction. 13 instructions could have been crafted more specifically to ensure no 14 violation of Rehberg under any party s interpretation of the case. 15 But no such request was made in time for it to impact the jury s 16 deliberations. 17 reflected the holding in Rehberg and mitigated the prejudicial 18 impact of the opening and closing statements to the point that a 19 new trial is not warranted. 20 21 In going through the transcript this morning, I noticed that it was suggested that you send a message. I don t want you to send any messages. I just want you to decide the case in accordance with my instructions[.] The jury indicated that it understood the Had the defendants so requested, the jury We believe the instructions given adequately 2. Speedy Trial Instruction Randall and Burbridge also argue that the jury should have 22 been instructed that Marshall s criminal prosecution did not end in 23 an acquittal. 24 dispute that criminal proceedings were commenced and continued and 25 that they ended in plaintiff s favor. 26 parties agree that Marshall s case was dismissed in light of speedy 27 trial concerns, but they disagree about whether the nature of the The district court instructed the jury: There s no 11 J.A. 1218 (Trial Tr.). The 1 dismissal should have been conveyed to the jury. 2 claim of error in the district court s jury instructions de novo, 3 and will reverse on this basis only if the [appellants] can show 4 that in viewing the charge given as a whole, they were prejudiced 5 by the error. 6 1994). 7 We review a Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. The district court s instruction is not a basis for a new 8 trial. 9 part, as follows: The malicious prosecution charge provided, in relevant 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 J.A. 1218 (Trial Tr.). 25 court s instruction was meant to remove from the jury s 26 consideration the second element of the malicious prosecution 27 claim. 28 criminal case was dismissed on speedy trial grounds or that such a 29 dismissal was in Marshall s favor. 30 a necessary prerequisite for a malicious prosecution charge, and 31 while it is possible that the jury inferred that the case ended in A person is maliciously prosecuted when, first, criminal proceedings are initiated or continued against him by the defendant. Two, the proceedings are terminated in his favor. Three, there was no probable cause for the commencement of the proceeding. And four, the defendant s actions leading to the initiation of proceeding[s] against the plaintiff were motivated by malice of a defendant. There s no dispute that criminal proceedings were commenced and continued and that they ended in plaintiff s favor. In context, it is evident that the district Randall and Burbridge do not dispute that Marshall s 12 An underlying acquittal is not 1 an acquittal, the inference that the case was procedurally 2 terminated was equally possible. 3 favorable termination, which is what occurred here and what the 4 district court instructed. 5 F.3d 155, 160 (2d Cir. 2002) ( [U]nder New York law, a dismissal 6 pursuant to New York Criminal Procedure Law § 30.30 - New York s 7 speedy trial statute - constitutes a favorable termination [for 8 purposes of a malicious prosecution action]. ); see also J.A. 115- 9 16 (Crim. Ct. Order) (dismissing Marshall s case on the basis of All that is necessary is a See Rogers v. City of Amsterdam, 303 10 the same statute). 11 termination of the prosecution without further elaboration is 12 therefore not a basis for reversal or a new trial. 13 The instruction s reference to the favorable 3. Exclusion of Recognition Evidence 14 Finally, Randall and Burbridge argue that the district court 15 erred in excluding evidence that Burbridge recognized Marshall on 16 the night of the arrest from Burbridge s review of NYPD arrest and 17 complaint reports. 18 recognition evidence on the basis that there was only one issue 19 in the case - whether the officers saw Marshall with the gun - and 20 that it did not want the case expanded to include the broader 21 issue of whether the initial stop was valid. 22 Tr.). 23 counsel from nearly opening the door to the recognition evidence by 24 intimating that the stop was unlawful, however. Before trial, the district court excluded the J.A. 875-76 (Hearing The district court s ruling did not inhibit Marshall s 13 For instance: 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Id. at 989 (Trial Tr.). 19 break without the jury present, defense counsel sought a ruling 20 that Marshall had opened the door to the reasons for the initial 21 stop. 22 had been opened and that Marshall had been referring . . . to the 23 period from the time the Defendants first observed the Plaintiff 24 until the arrest. Q: Now at some point, Officer Burbridge suggested that you stop Mr. Marshall, true? [Defendants Attorney]: Objection. Objection, Your Honor. That question is the subject of an in limine ruling. The Court: A what? [Defendants Attorney]: An in limine ruling. The Court: Repeat the question, please. (Record read back by the reporter.) The Court: Overruled. After several similar questions, during a The district court denied the motion, stating that no door Id. at 1097 (Trial Tr.). 25 Randall and Burbridge moved unsuccessfully for a mistrial on 26 the basis that Marshall had opened the door but that they had not 27 been allowed to present their recognition testimony. 28 asked the district court to give a curative instruction indicating 29 that the initial stop was not at issue. 30 the curative instruction: 31 32 33 34 35 They then The district court gave The initial stop was lawful. You can assume that. That s not the violation that s claimed here. The evidence relating to observation and acts surrounding the stop may be considered in deciding credibility. So you 14 1 2 3 4 5 6 7 can consider all of the evidence from the time they first observed, according to their evidence, the defendant up to the time when he was placed under arrest. Id. at 1217 (Trial Tr.). The district court s exclusion of the recognition evidence 8 proffered by the defendants is not a basis for disturbing the 9 jury s judgment. We review this evidentiary ruling for abuse of 10 discretion and will reverse only if the erroneous ruling affected 11 a party s substantial rights. 12 appeal, Burbridge and Randall argue, as they did at trial, that 13 Marshall opened the door by intimating the stop was improper and 14 that they were unduly prejudiced because they were not allowed to 15 elicit the true basis for the stop recognition of Marshall from a 16 review of NYPD arrest and complaint reports. 17 Marcic, 397 F.3d at 124. On The district court s rulings regarding the recognition 18 evidence were a bit uneven. 19 all evidence relating to the initial stop would be excluded, the 20 district court allowed some evidence about the stop, but not the 21 recognition evidence sought by the defendants. 22 court s curative instruction, however, alleviated any confusion on 23 this score and mitigated any damaging effect of Marshall s 24 questioning about the stop. 25 the jury disregarded the district court s instruction. 26 Downing, 297 F.3d at 59. 27 the recognition evidence issue does not merit a new trial. Although it seemed before trial that The district Nor is there any basis to believe that See In sum, the district court s handling of 15 1 2 3 CONCLUSION For the foregoing reasons, the judgment of the district court is AFFIRMED. 16
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