Bellamy v. City of New York, No. 17-1859 (2d Cir. 2019)
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Plaintiff filed suit under New York state law and 42 U.S.C. 1983 against the City and others, alleging that each were responsible for constitutional infirmities that infected plaintiff's criminal trial, caused his wrongful conviction, and resulted in damages. The district court granted defendants' motion for summary judgment.
The Second Circuit held that plaintiff raised material issues of fact as to certain, but not all, of his claims that detectives fabricated and withheld material evidence. The court also held that the City may be held liable for the consequences of the alleged policies of the Queens County District Attorney's (QCDA) office under the Monell doctrine, and that plaintiff has raised material issues of fact as to the underlying constitutional violations: the non-disclosure of financial benefits received by one of the state's principal witnesses and impropriety of his prosecutor's summation. Accordingly, the court vacated in part, affirmed in part, and remanded for further proceedings.
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17 1859 Bellamy v. City of New York 1 In the 2 United States Court of Appeals 3 For the Second Circuit 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 29 30 31 32 ________ AUGUST TERM, 2017 ARGUED: APRIL 26, 2018 DECIDED: JANUARY 29, 2019 No. 17 1859 cv KAREEM BELLAMY, Plaintiff Appellant, v. CITY OF NEW YORK, JOHN J. GILLEN, AND MICHAEL F. SOLOMENO, Defendants Appellees, John Doe 1, John Doe 2, Supervising Officers at the NYPD 101st Precinct, Vincent NMI Pepe, and Robert Schruhl, Defendants. ________ Appeal from the United States District Court for the Eastern District of New York. No. 12 cv 01025 – Ann M. Donnelly, Judge. ________ Before: WALKER AND JACOBS, Circuit Judges, SHEA, District Judge. ________ Judge Michael P. Shea, of the United States District Court for the District of Connecticut, sitting by designation. 2 No. 17 1859 1 Kareem Bellamy filed this action in the Eastern District of New 2 York under New York state law and 42 U.S.C. § 1983 following the 3 vacatur of his state convictions for murder in the second degree under 4 N.Y. Penal Law § 125.25(2) and criminal possession of a weapon in 5 the fourth degree under N.Y. Penal Law § 265.01(2), for which he 6 served more than 14 years of a 25 years to life sentence. Bellamy sued 7 investigating Detectives Michael Solomeno and John Gillen of the 8 New York Police Department (and certain John Does) as well as the 9 City of New York (at times, the “City”), alleging that each are 10 responsible for constitutional infirmities that infected Bellamy’s 11 criminal trial, caused his wrongful conviction, and resulted in 12 damages. The district court granted the Defendants’ motion for 13 summary judgment. 14 As relevant on appeal, Bellamy alleged that Detectives 15 Solomeno and Gillen fabricated inculpatory evidence and failed to 16 disclose material exculpatory or impeaching evidence depriving 17 Bellamy of his rights to due process and a fair trial. Bellamy alleged 18 that the City is responsible, pursuant to Monell v. Department of Social 19 Services of City of New York, 436 U.S. 658 (1978), for violations of 20 Bellamy’s due process rights caused by certain policies of the office of 21 the Queens County District Attorney (“QCDA”), the office that 22 prosecuted Bellamy. Principally, Bellamy alleged that (i) the QCDA’s 23 office failed to disclose to the defense substantial benefits received by 3 No. 17 1859 1 a key state witness due to an office policy of purposefully shielding 2 from prosecutors (and thereby the defense) the full scope of relocation 3 benefits given to witnesses in its witness protection program; and 4 (ii) his prosecutor made prejudicial improper remarks during his 5 summation, which was ultimately a result of the QCDA’s office’s 6 customary indifference to its prosecutors’ summation misconduct. 7 The district court (Donnelly, J.) granted Defendants’ motion for 8 summary judgment and dismissed each of Bellamy’s claims. As 9 relevant here, the district court rejected the claims against Detectives 10 Solomeno and Gillen on the ground that Bellamy raised no material 11 issue of fact as to whether either detective fabricated or withheld 12 material evidence. The district court rejected the claims against the 13 City, concluding that the City could not as a matter of law be liable 14 under Monell for the alleged policies of the QCDA’s office, and that, 15 in any event, Bellamy did not raise a material issue of fact as to either 16 of the constitutional violations underlying his Monell claims. 17 The questions for our determination are whether Bellamy has 18 produced sufficient evidence to raise material issues of fact that must 19 be tried to a jury and whether the district court erred in dismissing 20 the Monell claims as a matter of law. If not, summary judgment was 21 proper; if so, then summary judgment should not have been granted. 22 4 No. 17 1859 1 We conclude that Bellamy has raised material issues of fact as 2 to certain, but not all, of his claims that Detectives Solomeno and 3 Gillen fabricated and withheld material evidence, and we therefore 4 VACATE in part and AFFIRM in part the dismissal of Bellamy’s 5 claims against them. We further conclude that the City of New York 6 may be held liable for the consequences of the alleged policies of the 7 QCDA’s office under the Monell doctrine, and that Bellamy has raised 8 material issues of fact as to the underlying constitutional violations: 9 the non disclosure of financial benefits received by one of the state’s 10 principal witnesses and the impropriety of his prosecutor’s 11 summation. Consequently, we VACATE the dismissal of Bellamy’s 12 claims against the City. 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 We REMAND the cause for further proceedings consistent with this opinion. Judge Jacobs dissents in a separate opinion. ________ JOEL B. RUDIN, Law Office of Joel B. Rudin, P.C., New York, NY, for Plaintiff Appellant. MEGAN E.K. MONTCALM (Richard Dearing, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendants Appellees. Richard D. Willstatter, Vice Chair, Amicus Curiae Committee of the National Association of Criminal 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 No. 17 1859 Defense Lawyers, Chair, Amicus Curiae Committee of the New York State Association of Criminal Defense Lawyers, White Plains, NY; Adele Bernhard, Innocence Network, New York, NY; Barry Scheck, Innocence Project, New York, NY; Ross E. Firsenbaum, Wilmer Cutler Pickering Hale and Door LLP, New York NY, for Amici Curiae National Association of Criminal Defense Lawyers, New York State Association of Criminal Defense Lawyers, Innocence Network, and Innocence Project. ________ JOHN M. WALKER, JR., Circuit Judge: 15 Kareem Bellamy filed this action in the Eastern District of New 16 York under New York state law and 42 U.S.C. § 1983 following the 17 vacatur of his state convictions for murder in the second degree under 18 N.Y. Penal Law § 125.25(2) and criminal possession of a weapon in 19 the fourth degree under N.Y. Penal Law § 265.01(2), for which he 20 served more than 14 years of a 25 years to life sentence. Bellamy 21 sued investigating Detectives Michael Solomeno and John Gillen of 22 the New York Police Department (and certain John Does) as well as 23 the City of New York (at times, the “City”), alleging that each are 24 responsible for constitutional infirmities that infected Bellamy’s 25 criminal trial, caused his wrongful conviction, and resulted in 26 damages. The district court granted the Defendants’ motion for 27 summary judgment. 6 No. 17 1859 1 As relevant on appeal, Bellamy alleged that Detectives 2 Solomeno and Gillen fabricated inculpatory evidence and failed to 3 disclose material exculpatory or impeaching evidence depriving 4 Bellamy of his rights to due process and a fair trial. Bellamy alleged 5 that the City is responsible, pursuant to Monell v. Department of Social 6 Services of City of New York, 436 U.S. 658 (1978), for violations of 7 Bellamy’s due process rights caused by certain policies of the office of 8 the Queens County District Attorney (“QCDA”), the office that 9 prosecuted Bellamy. Principally, Bellamy alleged that (i) the QCDA’s 10 office failed to disclose to the defense substantial benefits received by 11 a key state witness due to an office policy of purposefully shielding 12 from prosecutors (and thereby the defense) the full scope of relocation 13 benefits given to witnesses in its witness protection program; and 14 (ii) his prosecutor made prejudicial improper remarks during his 15 summation, which was ultimately a result of the QCDA’s office’s 16 customary indifference to its prosecutors’ summation misconduct. 17 The district court (Donnelly, J.) granted Defendants Appellees’ 18 motion for summary judgment and dismissed each of Bellamy’s 19 claims. As relevant here, the district court rejected the claims against 20 Detectives Solomeno and Gillen on the ground that Bellamy raised no 21 material issue of fact as to whether either detective fabricated or 22 withheld material evidence. The district court rejected the claims 23 against the City, concluding that the City could not as a matter of law 7 No. 17 1859 1 be liable under Monell for the alleged policies of the QCDA’s office, 2 and that, in any event, Bellamy did not raise a material issue of fact as 3 to either of the constitutional violations underlying his Monell claims. 4 The questions for our determination are whether Bellamy has 5 produced sufficient evidence to raise material issues of fact that must 6 be tried to a jury and whether the district court erred in dismissing 7 the Monell claims as a matter of law. If not, summary judgment was 8 proper; if so, then summary judgment should not have been granted. 9 We conclude that Bellamy has raised material issues of fact as 10 to certain, but not all, of his claims that Detectives Solomeno and 11 Gillen fabricated and withheld material evidence, and we therefore 12 VACATE in part and AFFIRM in part the dismissal of Bellamy’s 13 claims against them. We further conclude that the City of New York 14 may be held liable for the consequences of the alleged policies of the 15 QCDA’s office under the Monell doctrine, and that Bellamy has raised 16 material issues of fact as to the underlying constitutional violations: 17 the non disclosure of financial benefits received by one of the state’s 18 principal witnesses and the impropriety of his prosecutor’s 19 summation. Consequently, we VACATE the dismissal of Bellamy’s 20 claims against the City. 21 22 We REMAND the cause for further proceedings consistent with this opinion. 8 No. 17 1859 BACKGROUND 1 2 This appeal requires us to address the complex and protracted 3 facts surrounding the events pertaining to the 1994 killing of James 4 Abbott. While Plaintiff Appellant Kareem Bellamy was ultimately 5 convicted in New York state court for Abbott’s murder, the uncertain 6 circumstances of the killing, and the investigation and trial that 7 followed, sparked a lengthy, circuitous, and at times dramatic legal 8 fight that continued into post conviction proceedings. That battle 9 began with what the record shows to have been a hard fought 10 criminal trial with no certain outcome in sight. Ultimately, Bellamy 11 was acquitted on the charge of intentional murder but convicted of 12 depraved indifference murder and unlawful possession of a weapon. 13 After Bellamy exhausted his direct appeal opportunities without 14 success, the post conviction litigation proceeded in two general 15 stages. First, after a prolonged and complicated state post conviction 16 process, the state court vacated Bellamy’s convictions in light of 17 newly discovered evidence that another individual might have 18 committed the Abbott murder. Second, following the state’s decision 19 not to re try him and his release from prison, Bellamy sought civil 20 relief in federal court alleging that his criminal trial was infected with 21 constitutional error. The instant lawsuit concerns only the latter fight, 22 which pertains not to how or why Bellamy was released but whether 23 constitutional error led to his conviction in the first place. 9 No. 17 1859 1 2 trial, we are aided by (i) an extensive summary judgment record, 3 which includes documents related to the investigation and 4 prosecution of Bellamy; (ii) the record of Bellamy’s criminal trial; 5 (iii) the record of Bellamy’s state post conviction proceedings; and 6 (iv) extensive deposition testimony taken in this action.1 Although 7 much is in contention in this case, what follows are the undisputed 8 facts from this complicated record and other relevant facts that we 9 identify as remaining in dispute. 10 In assessing the constitutional propriety of Bellamy’s criminal I. James Abbott’s Murder and the Resulting Investigation 11 Shortly before 10:00 a.m., on Saturday, April 9, 1994, an 12 assailant fatally stabbed James Abbott near a phone booth during an 13 altercation after Abbott left a C Town Supermarket in Far Rockaway, 14 Queens. Detectives Michael Solomeno and John Gillen of the NYPD’s 15 101st Precinct were assigned to investigate. In canvassing the area, 16 Detective Gillen, with other officers, entered the C Town store with a 17 photo of Abbott to see if anyone had witnessed anything. Detective Throughout this opinion, we cite to the transcripts of Bellamy’s criminal trial (“Trial Tr.”), the first and second hearings held on Bellamy’s New York state post conviction motion filed pursuant to N.Y. Crim. Proc. Law § 440.10 (“First 440 Tr.” and “Second 440 Tr.,” respectively), and deposition testimony taken in this case (“[] Dep. Tr.”). We direct the reader to the district court docket to review the full versions of these transcripts. See No. 12 cv 1025 (E.D.N.Y.), Dkt. Nos. 188–99, 204–13 [hereinafter, “Dkt. No. []”]. 1 10 No. 17 1859 1 Gillen spoke with Jay Judel, a C Town deli clerk, who reported that 2 Abbott, a regular customer, had been in the store alone that morning. 3 Another officer interviewed Andrew Carter, a wheelchair bound man 4 living adjacent to the C Town who said that he saw the attack while 5 waiting at a bus stop down the street from the phone booth where the 6 altercation took place. Carter told the officer that he saw three males 7 he did not recognize leave the C Town, and that when one stopped to 8 use the payphone, the other two “started punching and kicking” him, 9 and that “one of the males then produced a knife and started stabbing 10 the victim numerous times about the body and head.” App’x 234. 11 Carter told the officer that the two men fled on foot. 12 The following week, on April 15, 1994, Detective Gillen 13 received a phone call from a woman who identified herself as Anna 14 Simmons. Simmons reported that she had overheard two 15 individuals, Levon (“Ish”) Martin and Rodney (“Turk”) Harris, 16 discussing the Abbott murder. Simmons said that she heard Ish and 17 Turk bragging that they had killed Abbott following Abbott’s refusal 18 to join their gang, the Regulators. The following day, Detectives 19 Solomeno and Gillen re interviewed Carter, who was unable to 20 identify Ish and Turk from a photo array. In the days that followed, 21 Detectives Solomeno and Gillen tried to track down Simmons, but 22 never found her. 11 No. 17 1859 1 On April 22, 1994, Linda Sanchez, a C Town cashier who was 2 working at the store on the morning of Abbott’s murder, called the 3 101st Precinct.2 Detectives Solomeno and Gillen then interviewed her 4 at her home. Sanchez told the detectives that on the morning of the 5 murder, Abbott, whom she recognized, entered the store, collected 6 certain goods and got in a cashier’s line, and that two other men then 7 came into the store and ultimately got in line behind Abbott. After 8 making his purchases, Abbott remained in the store to speak with the 9 store’s manager, “JJ,” while the two men behind Abbott in line had 10 left the store and started walking through the parking lot “toward the 11 chicken store.” App’x 237. Sanchez noted that before they left the 12 parking lot, the two men stopped and looked back at the C Town 13 store. Sanchez herself then walked to the parking lot to collect 14 shopping carts whereupon she saw Abbott walk out of the store 15 through the parking lot and also in the direction of the “[c]hicken 16 store.” App’x 237–238. The detectives showed Sanchez a photo array 17 that included Ish and Turk—the two men identified in the Anna Sanchez’s telling of why she called the police on April 22, 1994 has not been entirely clear. On direct examination she testified (and Defendants agree) that she called the police because Bellamy threatened her. Trial Tr. 706–08. Sanchez, however, did not then mention those threats in her phone call to the precinct or in the interview that followed, and on cross examination, she at times suggested that her call was prompted by an article about the Abbott murder in The Wave newspaper, which listed Detective Solomeno’s contact information. See Trial Tr. 741–51. 2 12 No. 17 1859 1 Simmons phone call—but she did not recognize them as the two men 2 she had seen in the store in line behind Abbott. 3 Three weeks later, on May 13, 1994, Sanchez again called the 4 precinct to report that a man, who was drinking a 40 ounce beer 5 across the street from the C Town, was one of the two men that she 6 had previously reported were in the cashier’s line behind Abbott on 7 the morning of Abbott’s murder. Shortly thereafter, Detective Gillen 8 arrived on the scene with other detectives, and they saw Bellamy 9 drinking a 40 ounce beer in the location Sanchez described. The 10 detectives detained Bellamy in a squad car and told him that he was 11 being taken to the station to be fined in relation to his public drinking. 12 As we will discuss later, Detective Gillen said at trial that Bellamy 13 made spontaneous and unprompted comments in the police car 14 regarding a murder, but Bellamy denies that this occurred. 15 At the police station, Detective Gillen showed Bellamy a photo 16 of Abbott’s body and told him that there were witnesses identifying 17 him as the assailant. Bellamy denied any involvement in the murder 18 and told Detective Gillen that he was with a friend named Terrill Lee 19 on the day of the murder. Bellamy was placed in a holding cell 20 overnight. 21 The following day, May 14, 1994, Detective Gillen orchestrated 22 a six person lineup at the precinct, to be viewed by Sanchez and 23 Carter, the sole eyewitnesses known to the detectives at that time. 13 No. 17 1859 1 Bellamy was in position one. Sanchez identified the individual in 2 position one as one of the two men she saw leave the C Town prior to 3 Abbott on the day of Abbott’s killing. As to be discussed, the parties 4 dispute certain aspects of what occurred during Carter’s viewing of 5 the lineup. All agree, however, that Carter initially recognized one of 6 Abbott’s assailants in either position one or two but that he 7 subsequently told Detective Gillen in a separate room that he was 8 “99% sure” that the person he recognized was in position one, which 9 in fact was Bellamy. App’x 295, 2415. 10 Hours later, in the early morning of May 15, 1994, Detective 11 Gillen and Assistant District Attorney (ADA) Stephen Antignani of 12 the QCDA’s office took a sworn statement from Terrill Lee, the man 13 Bellamy claimed he was with on the day of Abbott’s murder. Lee 14 stated that although he was friends with Bellamy, he was not with 15 him at all on April 9, 1994. Thereupon, that same day, Detective 16 Gillen filled out a criminal complaint charging Bellamy with Abbott’s 17 murder. 18 II. Criminal Proceedings Against Kareem Bellamy 19 The grand jury indicted Bellamy on two counts of murder in 20 the second degree under N.Y. Penal Law § 125.25(1) (intentional 21 murder) and § 125.25(2) (depraved indifference murder), and one 22 count of criminal possession of a weapon in the fourth degree under 23 N.Y. Penal Law § 265.01(2). After unsuccessful suppression motions 14 No. 17 1859 1 by the defense, the case proceeded to trial in November 1995 with 2 ADA David Guy of the QCDA’s office as the prosecutor. 3 As relevant to this appeal, the state called the following 4 witnesses: (i) Detective Gillen; (ii) Linda Sanchez; (iii) Detective 5 Solomeno; (iv) Carter; (v) Deborah Abbot, the victim’s sister; and 6 (vi) Veronica Walker, an eyewitness who surfaced for the first time 7 during the trial. We summarize the relevant portions of each state 8 witness’s trial testimony and the summations.3 9 Detective Gillen. Detective Gillen’s testimony described his 10 investigation of the Abbott murder. He testified about his initial 11 discussion with Carter on the day of the murder, the Anna Simmons 12 phone call the following week, and his role in the lineups. Detective 13 Gillen also testified about the circumstances of picking up Bellamy 14 following Sanchez’s call to the precinct. Detective Gillen testified 15 with reference to an unsigned handwritten note that he wrote, that he 16 said was his contemporaneous memorialization of Bellamy’s 17 utterance in the squad car on the way to the police station: “This must 18 be a case of mistaken identity—someone probably accused me of 19 murdering someone.” Trial Tr. 494–95; see App’x 290. Detective Bellamy’s lone witness was Bellamy’s stepfather, with whom Bellamy lived on the day of the murder. Bellamy’s stepfather testified that Bellamy did not leave the house on the day of the murder until 10:15–10:20 a.m. Trial Tr. 1027–29. 3 15 No. 17 1859 1 Gillen then testified that after arriving at the station he added the 2 following notation on the same piece of paper: “Statement made by 3 [Bellamy] while being asked his pedigree—spontaneous & 4 unsolicited.” Trial Tr. 534–40; App’x 1707.4 On cross examination, 5 Detective Gillen acknowledged that he did not incorporate any of 6 Bellamy’s statements in a “DD 5,” known as a “complaint follow up” 7 form, despite having prepared eight DD 5s throughout the 8 investigation of the Abbott murder. Trial Tr. 527–28, 532–34. 9 Linda Sanchez.5 ADA Guy began his questioning of Sanchez 10 by soliciting her biographical information and then asking if she 11 “receive[d] any money from the office of the [QCDA] prior to coming 12 into court today?” Trial Tr. 633. Sanchez acknowledged that she had 13 received $50 from the QCDA’s office and anticipated receiving 14 another $50 from the office. She testified that the money was for “food 15 for the babies, Pampers,” and amounted to “$25 a day.” Trial Tr. 634. Detective Gillen did not testify at trial as to another purported statement from Bellamy that he recorded on the same piece of paper: “Why would someone accuse me of something I didn’t do?” App’x 1707. Nevertheless, the document in its entirety was entered into evidence at trial. See Trial Tr. 538. Detective Gillen acknowledged in a pre trial hearing that he recorded the first “murder” statement right away in the squad car and wrote the second “accuse” statement on the same piece of paper when he returned to the precinct. App’x 2413. 4 It appears that the prosecution viewed Sanchez as a reluctant witness, in that she showed up to testify only after the prosecution served her with a material witness order on the first day of trial. App’x 2044. ADA Guy did not refer to Sanchez in his opening statement. 5 16 No. 17 1859 1 She further testified that she “came [to court] with the detective,” and 2 that she was staying overnight at a “different location” than her 3 residence, and that “[t]he detective” “put [her] into that differen[t] 4 location.” Trial Tr. 634–35. 5 Sanchez then testified as to what she saw on the morning of 6 April 9, 1994. She identified Bellamy as being in the C Town that 7 morning, wearing a green jacket and braids in his hair, with “a lot of 8 braids sticking up,” and that he and another taller person went to the 9 same line as Abbott. Trial Tr. 639–41, 774. Sanchez had seen Bellamy 10 in the C Town many times before and noticed him that day because 11 “[h]e was buying beer on a Sunday—on a Saturday that day.” Trial 12 Tr. 642. Bellamy was in the store for about fifteen minutes and walked 13 out before Abbott. Sanchez noticed Bellamy turn to the right after he 14 left the store, rather than to the left, the direction in which he usually 15 departed from the store. Sanchez then walked to the parking lot to 16 retrieve shopping carts when she noticed Abbott catch up to Bellamy 17 and the taller person and pass by them. Sanchez testified that when 18 NYPD officers came to the C Town later that morning, she did not 19 speak to them. 20 Finally, Sanchez testified that Bellamy threatened her on two 21 separate occasions after the Abbott murder. A week after the murder, 22 Bellamy entered the C Town and said to her: “You know, you know, 23 you fucking bitch. . . . You’re next.” Trial Tr. 706. Then, Sanchez 17 No. 17 1859 1 testified that the following occurred on the street on May 13, 1994 2 before she called the police: “He was pointing at me. You know 3 yelling, at like, yelling something at me. Just pointing and pointing 4 at my direction.” Trial Tr. 710. Sanchez testified that she never told 5 the police about these threats, and that she had not told anyone about 6 them until one week before Bellamy’s trial (in November 1995).6 7 Detective Solomeno. Detective Solomeno testified that he was 8 initially the assigned detective on the investigation of the Abbott 9 murder, and that he played a role in the Ish and Turk photo arrays 10 shown to Sanchez and Carter and that he conducted the April 22, 1994 11 interview of Sanchez. Detective Solomeno also testified that, in the 12 days prior to his trial testimony, he had spoken to Deborah Abbott, 13 the victim’s sister, who had given him the contact information for a 14 woman named Veronica Walker. Detective Solomeno testified that 15 he spoke with Walker shortly before trial on December 1, 1995 and 16 that he prepared a DD 5 in connection with that interview. 17 Andrew Carter. Carter testified as to what he saw on the 18 morning of the murder and what happened at the Bellamy lineup. On 19 April 9, 1994, as he was waiting for the bus, he saw three people walk 20 out of the C Town store, one by himself and the other two together. However, Sanchez later testified that she mentioned the threats to an ADA immediately prior to testifying in front of the grand jury. Trial Tr. 758–59. 6 18 No. 17 1859 1 The three men came “right past” him, and then Carter looked in 2 another direction. Trial Tr. 868. When Carter turned back towards 3 the direction of the three men, “the other two guys were beating the 4 hell out of [Abbott].” Trial Tr. 869. Carter then testified that one of 5 the two men pulled out a “brass knuckle knife” and stabbed Abbott. 6 Trial Tr. 872. Carter pointed to Bellamy from the witness stand and 7 testified that the individual who stabbed Abbott was “the gentlemen 8 right there.” Trial Tr. 870–71. Carter had never seen any of the 9 individuals before, but he got a good look at their faces. Trial Tr. 872– 10 73. Carter had “[n]o doubt” that Bellamy was the person he saw stab 11 Abbott that morning. Trial Tr. 872. 12 Carter then testified at length about viewing the lineup in 13 which Bellamy was in position one. He testified that he initially told 14 the detective that “it was either one or two, because they got their hair 15 different.” Trial Tr. 880. Specifically, Carter testified that the 16 individual he saw stab Abbott did not have braids in his hair, but that 17 the person in position one at the lineup did have braids. Carter then 18 had a conversation in another room with an ADA and a detective 19 where Carter “said [it was] two.” Trial Tr. 883. Carter testified several 20 times at trial that the individual he saw stab Abbott was in position 21 number two in the lineup. Trial Tr. 895–96, 903–04. Nevertheless, 22 Carter testified that he told the detectives at the time that it was 23 “either one or two,” but also that he was 99% sure the assailant was 19 No. 17 1859 1 in position number one. Trial Tr. 882, 896, 903. ADA Guy tried to 2 sum up (but not resolve) the confusion on redirect, asking Carter: 3 “You told us today it was number two, but you told the detective it 4 was number one that day?” Trial Tr. 904. Carter responded, “Yes.” 5 Trial Tr. 904. 6 Deborah Abbott. Deborah Abbott, the victim’s sister, testified 7 about a conversation she had with Veronica Walker in July of 1995, 8 fifteen months after the killing of her brother but four months prior 9 to the trial. Following that conversation, she called the police and 10 spoke with prosecutor ADA Guy. The next time Deborah Abbott 11 spoke to ADA Guy was one week before the trial, where she for the 12 first time gave identifying information for Walker. 13 Veronica Walker. Walker testified as to what she saw on the 14 morning of April 9, 1994. Walker stopped into the C Town prior to a 15 10:00 a.m. hair appointment, and briefly spoke with Abbott who she 16 recognized from her neighborhood. She left the store after about 5–6 17 minutes, got in her car, and began to drive away. She stopped at the 18 adjacent intersection and saw through her car’s passenger side 19 window that Abbott was fighting with a lone man near a phone booth 20 directly to her right. Walker then made a righthand turn when a 21 skinny 5’6” man with braided hair “came from across the left hand 22 side of the street from the back of [her] car, running across the street,” 23 and joined in the fight between Abbott and the unidentified man. 20 No. 17 1859 1 Trial Tr. 1001–03. Walker, who knew Bellamy personally, testified 2 that she did not recognize the man who ran behind her car to join the 3 fight, had never seen him before, and did not see him in the 4 courtroom. 5 In an apparent attempt to impeach Walker’s non identification 6 of Bellamy, ADA Guy then asked Walker about her interview with 7 Detectives Solomeno and Gillen the previous week: Q: Well, didn’t you tell Detective Solomeno and Detective Gillen that you recognized that person [who you saw run by the car] as Kareem [Bellamy]? 12 A: No. 13 Q: What—Well, did you tell Detective Solomeno that the person looked like Kareem? A: I said it could have been him. It could have. 8 9 10 11 14 15 16 17 Trial Tr. 1005. The defense asked Walker almost no questions. 18 Defense Summation.7 In summation, the defense argued that 19 the state had not shown that Bellamy committed the Abbott murder 20 beyond a reasonable doubt. It argued that the case was a “rush to 21 judgment,” and that “the district attorney was anxious to close this 22 case and so they closed it.” Trial Tr. 1099. The defense principally 23 attacked the three eyewitnesses. It argued that Sanchez’s story lacked Under New York law, the defense delivers its summation first and has no right of rebuttal. See N.Y. Crim. Proc. Law § 260.30. 7 21 No. 17 1859 1 common sense and that she had a motive to lie given her receipt of 2 $25 per day by the QCDA’s office. The defense focused on Carter’s 3 trial testimony to the effect that the assailant was in position two at 4 the lineup, not position one, and downplayed Carter’s in court 5 identification by arguing that Carter simply pointed to the only “black 6 man” at the defense counsel’s table. Trial Tr. 1099. Counsel reminded 7 the jury that Walker did not identify Bellamy as the person she saw 8 run by her car, and rather acknowledged only that it could have been 9 him. The defense also focused on the differing accounts from the 10 witnesses as to whether the assailant did or did not have braided hair. 11 Trial Tr. 1093; compare Trial Tr. 774 & 1003 (Sanchez and Walker’s 12 testimony that the assailant had braids) with Trial Tr. 896 (Carter’s 13 testimony that the assailant did not have braids).8 The defense then 14 argued that Bellamy never made the spontaneous “murder” 15 statement in the squad car, and that even if he did, it was not 16 inculpatory. Finally, the defense counsel reminded the jury that the 17 state had never attempted to establish any motive for the killing. 18 State’s Summation. ADA Guy delivered a lengthy summation, 19 acknowledging, at the outset, that the evidence in the case was messy 20 and was not presented in a “tidy little package” for the jury. Trial Tr. The trial testimony Carter gave as to Bellamy’s hair contradicted his testimony at the grand jury, where he testified that on the day of the lineup the assailant “had his hair cut,” but that on the day of the Abbott murder he had “[k]inky, short braids.” App’x 334. 8 22 No. 17 1859 1 1113. But, he argued, the jury’s “task becomes relatively easy” when 2 it applies common sense and focuses principally on the testimony of 3 the three eyewitnesses. Trial Tr. 1115. 4 ADA Guy acknowledged that Sanchez “may not be the most 5 articulate person,” and that she “got a little confused from time to 6 time” and “didn’t testify all that well,” in that she made certain 7 mistakes and contradictions, but that her story was credible, she had 8 no reason to lie, and there was no “evidence that she is a liar.” Trial 9 Tr. 1121, 1138–40, 1144. ADA Guy also acknowledged certain 10 contradictions in Carter’s testimony and argued that Carter “made a 11 mistake” when he said that the assailant was in position two at the 12 lineup. Trial Tr. 1134–36. But, ADA Guy argued, “[y]ou don’t have 13 to take my word. Common sense will tell you it’s the defendant, 14 number one, who is on trial, not some filler in a lineup.” Trial Tr. 15 1137. ADA Guy also acknowledged Walker’s non identification of 16 Bellamy in court but argued that the jury should instead focus on the 17 physical description that she provided of the individual she saw on 18 the morning of the Abbott murder, which is consistent both with 19 Bellamy’s actual description and the other eyewitnesses’ description 20 of the assailant. 21 ADA Guy then addressed the defense’s remaining contentions. 22 He answered the defense’s contention that the state offered no motive 23 for Bellamy’s alleged killing of Abbott by arguing that there was no 23 No. 17 1859 1 proof, either way, of motive in this case, “submit[ting that] there is no 2 proof that he had no motive.” Trial Tr. 1133 (emphasis added). ADA 3 Guy also reminded the jury of Detective Gillen’s testimony regarding 4 Bellamy’s “premature denial” in the squad car, arguing that it was in 5 character with Bellamy’s inability to “keep his mouth shut,” a mouth 6 that ADA Guy argued was “huge” and “cavernous,” as well as 7 Bellamy’s status as a “liar.” Trial Tr. 1145–48. 8 ADA Guy concluded by again imploring the jurors to use their 9 common sense. As reflected in the trial transcript, ADA Guy told the 10 jury: “I know who committed the murder. You know it was an 11 intentional murder and you know there is no rational explanation for 12 why so many people are pointing their fingers at [Bellamy].” Trial Tr. 13 1149.9 ADA Guy concluded in substance: “When the defendant 14 asked why would someone be accusing me of murder, by your 15 verdict you can answer his question. Because you are the murderer. 16 It’s because the evidence shows that you are the murderer, and that 17 you are not going to get away with it, not this time.” Trial Tr. 1150. * 18 * * 19 After three days of deliberations, during which the jury 20 submitted eighteen notes to the judge, sought lengthy readbacks of As to be discussed, the Defendants contend that the trial transcript contains a transcription error, and that ADA Guy stated, “You know who committed the murder.” 9 24 No. 17 1859 1 testimony, and was given an Allen charge,10 the jury acquitted 2 Bellamy of intentional murder but convicted him of depraved 3 indifference murder and a weapons charge. The court sentenced 4 Bellamy to 25 years to life. Bellamy appealed the convictions, 5 arguing (i) insufficiency of the evidence; (ii) that Detective Gillen 6 provided false testimony; and (iii) that Bellamy’s statements to Gillen 7 and the lineup identifications should have been suppressed. The state 8 appellate court affirmed, 247 A.D.2d 399, and leave to appeal to the 9 Court of Appeals was denied, 91 N.Y.2d 970. Bellamy’s federal habeas 10 corpus petition, which depended entirely on his assertion that Gillen 11 falsely testified as to Bellamy’s statements in the squad car following 12 his pickup, was denied and not appealed. 13 III. Bellamy’s State Post Conviction Proceedings 14 In 2007, more than a decade after his conviction, Bellamy 15 moved to vacate the judgment against him pursuant to N.Y. Crim. 16 Proc. Law § 440.10(f), (g) and (h). See People v. Bellamy, 2008 WL 17 3271995, at *2–3 (Sup. Ct. Queens Cnty. June 27, 2008). The central “The term ‘Allen charge’ is a generic term used for a type of supplemental instruction that is given to a deadlocked jury, first approved by the Supreme Court in Allen v. United States, 164 U.S. 492 (1896). ‘A traditional Allen charge reminds the jurors about the importance of obtaining a verdict and encourages jurors to listen ‘to each other’s arguments’ while also emphasizing that ‘the verdict must be the verdict of each individual juror, and not a mere acquiescence in the conclusion of his fellows.’ Id. at 501.” Smalls v. Batista, 191 F.3d 272, 275 n.1 (2d Cir. 1999). 10 25 No. 17 1859 1 basis for the sought after relief was § 440.10(g), which under certain 2 circumstances allows for the vacatur of a guilty verdict upon the 3 discovery of new evidence. The principal new evidence relied on by 4 Bellamy was that: (i) another individual, Ish, had confessed to the 5 Abbott murder to a police informant named Michael Green, and that 6 Green had Ish on tape discussing the crime; and (ii) Carter recanted 7 his trial testimony that identified Bellamy as the assailant and was 8 now asserting that he falsely inculpated Bellamy at trial under 9 pressure by Detective Gillen. 10 The state post conviction court conducted a lengthy hearing, 11 which included taking the testimony of several of the trial witnesses, 12 including Carter,11 Walker, Sanchez, and Detectives Solomeno and 13 Gillen, as well as the testimony of Green and ADA Antignani. As will 14 be discussed, some of the testimony at this hearing added further 15 color to the events surrounding Abbott’s murder, while other 16 testimony conflicted with that given at trial. Following the hearing, 17 the court granted Bellamy’s motion and vacated his conviction based 18 solely on the newly discovered evidence proffered by Green that On June 11, 2008, following his testimony at the initial hearing on Bellamy’s § 440 motion (but prior to the second such hearing), Carter passed away. 11 26 No. 17 1859 1 inculpated Ish in Abbott’s murder.12 See id. at *11–12 (finding Carter’s 2 recantation not credible). 3 After filing an appeal of that judgment, however, the state 4 moved for reargument before the hearing court, arguing that the 5 evidence from Green that the court relied on to vacate Bellamy’s 6 conviction was perjurious and fraudulent. The state submitted an 7 affidavit from Green in which he now admitted that the tape he 8 offered at the § 440 hearing purportedly capturing a conversation 9 between Green and Ish was in fact a recording between Green and an 10 acquaintance pretending to be Ish. See People v. Bellamy, 2010 WL 11 143462, at *1 (Sup. Ct. Queens Cnty. Jan. 14, 2010). The hearing court 12 reopened the proceeding and again took significant witness 13 testimony, including that of Green, who testified consistent with his 14 affidavit that he created the false tape, that he lied at the earlier 15 hearing, and that Ish never told him that he was involved in the 16 Abbott murder. 17 Despite finding that Green had falsely testified about a 18 fabricated tape, the court adhered to its earlier ruling ordering the 19 vacatur of Bellamy’s judgment of conviction. The court found parts 20 of Green’s testimony inculpating Ish at the initial hearing credible 21 despite the fake tape and Green’s subsequent recantation. Bellamy, The motion court referred to Green in this initial ruling on Bellamy’s § 440 motion as “John Doe/CI.” See Bellamy, 2008 WL 3271995, at *8–9. 12 27 No. 17 1859 1 2010 WL 143462, at *6. The Second Department affirmed, agreeing 2 that a “reasonable jury could find . . . that [Green’s] original 3 unsolicited implication of [Ish] was truthful, regardless of [Green’s] 4 later recantation of those statements.” 84 A.D.3d 1260, 1262 (2d Dep’t 5 2011). Leave to appeal to the Court of Appeals was denied, 17 N.Y.3d 6 813, Bellamy was released from prison, and the state dismissed the 7 indictment.13 8 IV. The Instant Civil Action 9 In March 2012, Bellamy filed the instant action in the Eastern 10 District of New York against the City of New York, Detectives 11 Solomeno and Gillen, and two John Doe defendants. 14 At the core of In a series of rulings after Bellamy’s conviction, the New York Court of Appeals significantly limited the reach of New York’s criminal prohibition against depraved indifference murder, the only murder charge on which Bellamy was convicted. See People v. Payne, 3 N.Y.3d 266, 270 (N.Y. 2004). In short, the Court of Appeals concluded that where an act evinces an intent to kill, that act cannot support a depraved indifference charge, which is not a lesser included offense of intentional murder. Id. The state therefore conceded that it could not “in good faith, proceed with a subsequent prosecution [of Bellamy] for depraved indifference murder because we are legally prohibited from doing so. . . . [We] have no other choice but to move to dismiss this indictment against this defendant . . . not because he has been exonerated or because we believe him to be actually innocent but because a continued prosecution is not legally sustainable.” App’x 698. 13 On October 31, 2014, Bellamy filed an amended complaint replacing the two John Does with named defendants, Dkt. No. 82, but Bellamy withdrew that pleading and the parties stipulated that the original March 2012 complaint would be the operative complaint, Dkt. No. 110. 14 28 No. 17 1859 1 Bellamy’s complaint were allegations that the Defendants engaged in 2 material misconduct during the investigation and trial that deprived 3 him of his rights to due process under the Fourteenth Amendment 4 and to a fair trial under the Sixth Amendment. In short, Bellamy’s 5 claims at issue here fall into three general categories: (i) claims that 6 Detectives Solomeno and Gillen fabricated material evidence; 7 (ii) claims that Detectives Solomeno and Gillen withheld material 8 evidence; and (iii) Monell claims against the City of New York based 9 upon allegations that, pursuant to a policy, the QCDA withheld the 10 full scope of relocation benefits it provided to Sanchez and that, due 11 to a systemic failure to train or discipline, ADA Guy’s summation was 12 improper.15 Specifically, as relevant on appeal, Bellamy’s complaint 13 alleges that: After the district court’s denial of the Defendants’ motion to dismiss, and Bellamy’s withdrawal of his claims against the John Doe defendants, Dkt. 24, 110, one of his Monell claims, see Dkt. 112, 158 at 21 n.5, and a claim for negligent infliction of emotional distress, Dkt. 24, the following claims remained at issue: 15 (i) Section 1983 claims against Detectives Solomeno and Gillen alleging a denial of due process, the right to a fair trial, and conscience shocking government action. (ii) Section 1983 and state law claims against Detectives Solomeno and Gillen alleging malicious prosecution. (iii) Section 1983 Monell claims against the City of New York. (iv) State law intentional infliction of emotional distress claims against Detectives Solomeno and Gillen. (v) A state law respondeat superior claim against the City of New York. 29 1 No. 17 1859 (i) Detective Gillen fabricated evidence that Bellamy referenced a murder in the squad car that escorted him to the police station on May 13, 1994 and falsely testified as to such at Bellamy’s criminal trial; (ii) Detective Solomeno fabricated evidence in the form of the contents of a DD 5 that reported that during her December 1, 2005 interview Walker identified Bellamy as the individual she saw on the morning of the Abbott murder; (iii) Detective Gillen improperly pressured Carter to identify Bellamy in the lineup conducted on May 14, 1994, even though Carter was unsure if Bellamy was the person he saw stab Abbott; (iv) Detective Gillen and/or Solomeno failed to disclose statements Sanchez made during the investigation indicating that the morning she saw Bellamy was a Sunday, rather than a Saturday, the day on which Abbott was killed; (v) Detective Gillen failed to disclose Sanchez’s statement during the investigation that the person she saw with Bellamy on the morning of the Abbott murder was Terrill Lee; (vi) Detective Gillen failed to disclose Sanchez’s statements to police officers on April 9, 1994, the day of Abbott’s murder, that she “didn’t see anything” and “didn’t know anything”; 2 3 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 (vii) Detectives Solomeno and Gillen failed to disclose Walker’s statements during her December 1, 2005 interview that Bellamy was not the person she saw on the morning of the Abbott murder and that Walker refused to sign the DD 5 to the effect that she had seen Bellamy; 32 (viii) the prosecution failed to disclose to the defense the full relocation benefits received by Sanchez as part of her participation in the QCDA’s witness protection program; and 33 (ix) 29 30 31 ADA Guy committed prejudicial summation misconduct. 30 No. 17 1859 1 The district court stayed discovery on the core of Bellamy’s 2 Monell claims (viii and ix above) but allowed discovery to proceed in 3 full on the claims against Detectives Solomeno and Gillen. See Dkt. 4 No. 52. The parties took substantial deposition testimony, including 5 from the following witnesses: (i) Bellamy; (ii) Detective Gillen; (iii) 6 Detective Solomeno; (iv) ADA Antignani; (v) ADA Guy; (vi) Michael 7 Mansfield, the Director of the QCDA’s witness protection program; 8 (vii) Daniel Cox, the administrator of the QCDA’s witness protection 9 program responsible for Sanchez’s participation; (viii) Sanchez; and 10 (ix) Walker. We refer to the deposition testimony in detail in our 11 forthcoming analysis of Bellamy’s claims, but simply preview here 12 that the deposition testimony, like the testimony at the § 440 13 proceeding, provides further, albeit at times conflicting, accounts of 14 the circumstances surrounding Abbott’s murder and the resulting 15 investigation. 16 17 Solomeno and Gillen, both parties cross moved for summary 18 judgment. In an 80 page ruling, the district court granted summary 19 judgment to Defendants dismissing Bellamy’s claims against 20 Detectives Solomeno and Gillen and dismissing the Monell claims on 21 the pleadings. Bellamy v. City of New York, 2017 WL 2189528 (E.D.N.Y. 22 May 17, 2017). First, the district court dismissed Bellamy’s malicious 23 prosecution claims against the detectives on the ground that Bellamy At the close of discovery on the claims against Detectives 31 No. 17 1859 1 failed to raise a triable issue of fact as to whether he was prosecuted 2 without probable cause.16 Id. at *29–34. Second, it dismissed the core 3 of Bellamy’s due process and fair trial claims against Detectives 4 Solomeno and Gillen upon concluding that Bellamy raised no 5 material issue of fact as to whether either detective fabricated or 6 withheld material evidence. Id. at *34–36. Third, it dismissed 7 Bellamy’s “shocks the conscience” due process claims against the 8 detectives as duplicative of Bellamy’s malicious prosecution claims. 9 Id. at *36. Fourth, it dismissed Bellamy’s intentional infliction of 10 emotional distress claims against the detectives on the ground that 11 Bellamy raised no triable issue as to whether the detectives conduct 12 was “extreme and outrageous,” and that, regardless, the claims were 13 also duplicative of Bellamy’s malicious prosecution claim. Id. at *37. 14 Finally, the district court dismissed Bellamy’s Monell claims against 15 the City on the pleadings for two reasons: (i) in light of Van de Kamp 16 v. Goldstein, 555 U.S. 335 (2009), the City of New York cannot as a 17 matter of law be liable for the alleged policies of the QCDA’s office; 18 and (ii) regardless, Bellamy did not sufficiently establish the 19 underlying constitutional due process violations he alleged: the non Later in its opinion, the district court also concluded that Detectives Solomeno and Gillen would have been protected by qualified immunity from Bellamy’s malicious prosecution claims regardless. Id. at *37. 16 32 No. 17 1859 1 disclosure of Sanchez’s relocation benefits and ADA Guy’s 2 summation misconduct.17 Id. at *37–41. 3 4 process and fair trial claims against Detectives Solomeno and Gillen 5 and his Monell claims against the City of New York. His baseline 6 position is that (i) as to the claims against Detectives Solomeno and 7 Gillen, the evidence as a whole (from the trial, the post conviction 8 hearing, and the depositions in the instant civil case), presents 9 disputed issues of material fact that necessitate a trial, and (ii) with 10 respect to the Monell claims, the district court committed legal error 11 and that material fact issues remain as to the underlying conduct 12 alleged. Bellamy’s appeal challenges only the dismissal of his due DISCUSSION 13 14 We review de novo both a grant of a summary judgment and the 15 grant of judgment on the pleadings. Bank of New York v. First 16 Millennium, Inc., 607 F.3d 905, 914, 922 (2d Cir. 2010). 17 Summary judgment may be granted only “if the movant shows 18 that there is no genuine dispute as to any material fact and that the It does not appear that the Defendants moved for summary judgment on Bellamy’s Count XII against the City of New York for respondeat superior, and the district court did not address the claim. Regardless, Bellamy’s respondeat superior claim depended on his establishing his state law tort claims, see Dkt. 1 ¶¶ 472–73, which the district court dismissed. Bellamy does not appeal the dismissal of those claims, so this issue is not relevant. 17 33 No. 17 1859 1 movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 2 56(a). We may affirm the grant of summary judgment only when, in 3 “resolv[ing] all ambiguities and draw[ing] all permissible factual 4 inferences in favor of the [non moving] party. . . the record taken as a 5 whole could not lead a rational trier of fact to find for the non moving 6 party.” Estate of Gustafson v. Target Corp., 819 F.3d 673, 675 (2d Cir. 7 2016) (internal quotation marks omitted). Thus, in the present context 8 and of significance here, where the summary judgment non movant 9 is a former criminal defendant bringing § 1983 claims related to his 10 underlying criminal trial, the summary judgment standard, generally 11 speaking, is the converse of the standard applicable direct appeal of a 12 criminal defendant’s conviction, which requires us to “view the 13 evidence in a light that is most favorable to the government, and with 14 all reasonable inferences resolved in favor of the government.” United 15 States v. Anderson, 747 F.3d 51, 60 (2d Cir. 2014) (internal quotation 16 marks omitted). 17 A court may grant judgment on the pleadings only when, after 18 “accept[ing] all factual allegations in the complaint as true and 19 draw[ing] all reasonable inferences in favor of the [plaintiff] . . . the 20 complaint [does not] contain sufficient factual matter . . . to state a 21 claim to relief that is plausible on its face.” Bank of New York, 607 F.3d 22 at 922. 34 No. 17 1859 1 These principles lead us to conclude, contrary to the district 2 court, that Bellamy has succeeded in raising material issues of fact as 3 to a number of the claims subject to this appeal. This requires us to 4 vacate in large part the dismissal of Bellamy’s due process and fair 5 trial claims against Detectives Solomeno and Gillen and to vacate in 6 full the dismissal of Bellamy’s Monell claims.18 7 I. Claims Against Detectives Solomeno and Gillen 8 As we have previously discussed, Bellamy’s claims against 9 Detectives Solomeno and Gillen fall into two general categories: 10 (i) claims that the detectives fabricated material evidence; and 11 (ii) claims that the detectives withheld material evidence. a. Evidence Fabrication Claims 12 13 “When a police officer creates false information likely to 14 influence a jury’s decision and forwards that information to 15 prosecutors, he violates the accused’s constitutional right to a fair 16 trial.” Ricciuti v. N.Y.C. Transit Auth., 124 F.3d 123, 130 (2d Cir. 1997). 17 Bellamy contends that Detective Gillen and/or Solomeno fabricated 18 three pieces of material evidence: (i) Bellamy’s “murder” statement in 19 the squad car; (ii) Walker’s statement implicating Bellamy as 20 recorded in a DD 5 drafted by Detective Solomeno; and (iii) Carter’s The dissent posits views of the evidence that, if accepted by a trial jury, would likely result in a defendants’ verdict. But it does so by drawing inferences against the plaintiffs and thus does not gainsay the existence of disputed issues of material fact that require a trial determination. 18 35 No. 17 1859 1 lineup identification of Bellamy. We conclude that Bellamy has raised 2 material issues of fact precluding summary judgment as to the first 3 two contentions, but not the third. 4 i. Bellamy’s “Murder” Statement in the Squad Car 5 The prosecution relied at trial on Detective Gillen’s testimony 6 regarding an undated and unsigned note that Detective Gillen 7 contended that he wrote while in the squad car shortly after he picked 8 up Bellamy. The note purportedly captured the following utterance 9 from Bellamy: “This must be a case of mistaken identity—someone 10 probably accused me of murdering someone.” App’x 290. The note 11 also supposedly transcribed the following squad car statement from 12 Bellamy, which Detective Gillen only added to the note after 13 returning to the precinct: “Why would someone accuse me of 14 something I didn’t do?” App’x 290, 2413. Sometime thereafter, 15 Detective Gillen again added to the note the following: “Statement 16 made by def while being asked his pedigree—spontaneous & 17 unsolicited.” App’x 1707. The prosecution relied heavily on this 18 evidence at trial. Detective Gillen, the state’s first witness, testified at 19 length regarding Bellamy’s purported murder statement in the squad 20 car, which Gillen allegedly memorialized in a handwritten note in his 21 police spiral notebook. Trial Tr. 494–96, 529. ADA Guy relied on 22 Bellamy’s purported murder statement in summation, Trial Tr. 1124. 23 The prosecution’s reliance on this statement is unsurprising because, 36 No. 17 1859 1 if Bellamy made it, it is highly inculpatory. No one mentioned 2 Abbott’s murder to Bellamy when he was picked up, and from 3 Bellamy’s perspective, all indications were that the detectives were 4 detaining Bellamy solely for consuming alcohol in public. 5 Bellamy has consistently denied making the “murder” 6 statement, including in his deposition in this case, and asserts as part 7 of his fair trial claim that it was wholly fabricated by Detective 8 Gillen.19 In a brief analysis, the district court rejected the claim, 9 relying on Jeffreys v. City of New York, 426 F.3d 549 (2d Cir. 2005), for 10 the proposition that self serving deposition testimony that is 11 “unsubstantiated by any other direct evidence” cannot raise an issue 12 of material fact. 2017 WL 2189528, at *31. 13 We conclude, contrary to the district court, that Bellamy has 14 raised a material issue of fact as to whether Detective Gillen fabricated 15 the note purportedly memorializing Bellamy’s “murder” statement in 16 the squad car. Contrary to the district court’s analysis, a § 1983 17 plaintiff’s testimony alone may be independently sufficient to raise a 18 genuine issue of material fact. See, e.g., Rentas v. Ruffin, 816 F.3d 214, 19 221 (2d Cir. 2016). Jeffreys is inapposite because the self serving Bellamy affirmatively denies making the “murder” statement but takes a softer stance as to the “accuse” statement, stating he cannot remember making it but that if he did it was “probably . . . after they . . . put the [photo of the] bloody guy on the table and told me that two people said they seen me kill somebody.” Bellamy Dep. Tr. 145–47. 19 37 No. 17 1859 1 testimony in that case was “contradictory and incomplete,” and “so 2 replete with inconsistencies and improbabilities that no reasonable 3 juror would undertake the suspension of disbelief necessary to credit 4 the allegations.” 426 F.3d at 555. Here, Bellamy’s testimony was 5 consistent and uncomplicated: he never made the statement. Neither 6 is his testimony wholly improbable: why would Bellamy offer such 7 an admission when he was told only that he was being picked up on 8 a public drinking charge? 9 Further distinguishing this case from Jeffreys is that there is 10 evidence in the record, independent from Bellamy’s unequivocal 11 denial, tending to support an inference of fabrication. The DD 5 that 12 Detective Gillen drafted that summarized the circumstances of 13 Bellamy’s pickup makes no mention of the “murder” statement, 14 despite the fact that the DD 5 both identified that Bellamy was being 15 investigated for homicide and that Detective Gillen was specifically 16 investigating the Abbott murder when he went to pick up Bellamy. 17 See App’x 1738; see also Trial Tr. 491. At trial, Detective Gillen will no 18 doubt be asked to explain this omission from the DD 5. In so doing, 19 he may repeat the explanation he offered at a pre trial hearing that 20 the omission was “basically an oversight.” App’x 2411. The jury will 21 be free, however, to weigh that assertion against evidence that NYPD 22 detectives commonly understand that DD 5s are to be used at trial 23 and that it is protocol for a suspect’s statements to be incorporated 38 No. 17 1859 1 into a DD 5, especially statements as significant as those that 2 Detective Gillen attributes to Bellamy. See Solomeno Dep. Tr. 27–28; 3 Guy Dep. Tr. 79, 126–27; see also Trial Tr. 532–33 (Gillen testimony that 4 he prepared eight DD 5s related to the Abbott murder investigation 5 alone). 6 The jury will also be free to weigh other evidence tending to 7 undermine Detective Gillen’s testimony that Bellamy made the 8 “murder” statement in the police car, such as the fact that Detective 9 Gillen did not identify this statement during his grand jury testimony, 10 see App’x 336–38, and the fact that the record shows that Detective 11 Gillen, who was in the backseat with Bellamy, said that Bellamy 12 “yell[ed]” the “murder” statement but neither of the two other 13 officers who were in the car was asked to—or did—corroborate his 14 story. Both of those detectives testified at trial and neither mentioned 15 the “murder” statement. Gillen Dep. Tr. 53; Trial Tr. 495. In sum, the 16 jury would be entitled to consider the lack of corroboration of 17 Detective Gillen’s testimony.20 Defendants assert support for the accuracy of Gillen’s transcription of the “murder” statement in the form of ADA Antignani’s notice served to Bellamy pursuant to N.Y. Crim. Proc. Law § 710.30 two days after Bellamy was picked up, which notifies Bellamy of the state’s intent to rely on the “murder” statement at trial. App’x 1610. Even if this fact could support an inference that the Gillen transcription was accurate, it just as easily supports the inference that ADA Antignani simply relied on Gillen’s fabricated note. 20 39 No. 17 1859 1 We conclude that, taken as a whole, the evidence compiled at 2 summary judgment, viewed in the light most favorable to Bellamy, 3 cannot rule out the inference that Detective Gillen fabricated the 4 “murder” statement. Bellamy has therefore raised a material issue of 5 fact precluding summary judgment on this fair trial claim. 6 ii. DD 5 Documenting Walker Interview 7 On December 1, 2005, while Bellamy’s criminal trial was 8 ongoing, Detectives Solomeno and Gillen for the first time 9 interviewed Veronica Walker, who, as discussed, testified at trial that 10 she had been at the scene in her car when Abbott was killed. 11 Following that interview, Detective Solomeno drafted a DD 5 that, he 12 testified, memorialized Walker’s statements and forwarded the DD 5 13 to ADA Guy. Bellamy contends that Detective Solomeno fabricated 14 the statements inculpating Bellamy attributed to Walker in that DD 15 5, and that the state materially relied on the fabricated DD 5 at trial. 16 We conclude that the summary judgment record, again taken in the 17 light most favorable to non movant Bellamy, raises a material issue of 18 fact as to whether Detective Solomeno in fact fabricated the evidence 19 contained in the DD 5. 20 At her deposition, Walker testified in detail about her mid trial 21 interview with Detectives Solomeno and Gillen. Walker testified that 22 the detectives told her they received her contact information from 23 Deborah Abbott, the victim’s sister, and that Deborah had reported to 40 No. 17 1859 1 them that she had a conversation with Walker in which Walker said 2 she witnessed Bellamy kill Abbott. Walker testified that she told the 3 detectives that the story was not true, but the detectives continued to 4 insist to her that she witnessed Bellamy murder Abbott. Detective 5 Solomeno then showed Walker two photos of Bellamy, whom she 6 told the detectives she recognized and had seen over 300 times in her 7 life. Walker testified that she repeatedly told the detectives, however, 8 that it was not Bellamy that she saw on the day of the Abbott murder. 9 She testified that, despite those statements, Detective Solomeno 10 drafted the following handwritten statement directly to the contrary 11 and asked Walker to sign it: 12 13 14 15 16 17 Miss Walker stated that she drove past the two males fighting and that when . . . she looked back and then saw another male black she knew as Kareem Bellamy also fighting with James [Abbott] and that Kareem and the other male black were kicking and punching James. 18 App’x 2128–29. Walker swore that she refused to sign the statement 19 because, in her view and consistent with her repeated statements to 20 the detectives, it was not true. As she explained in her deposition: 21 22 23 24 25 I read the whole thing and that is not what it stated that I said. It stated that I witnessed Kareem, that I seen Kareem and that is what I was saying to them and that’s the reason why I didn’t sign it because I did not see him. 41 No. 17 1859 1 Walker Dep. Tr. 40. Walker repeatedly characterized the statement as 2 “lies,” Walker Dep. Tr. 127–31, the same position she took years 3 earlier when testifying at Bellamy’s § 440 proceeding. First 440 Tr. 97 4 (“Absolutely not. Never told them that.”). 5 6 was true, they concede that Walker refused to sign the statement that 7 Detective Solomeno drafted during their December 1, 2005 interview. 8 Solomeno Dep. Tr. 42–43; Gillen Dep. Tr. 191. Detective Solomeno 9 acknowledges that he nevertheless put the “almost word for word” 10 statement in a DD 5, but failed to disclose in the DD 5 that Walker 11 refused to sign it (as he concedes he “should have” done), and that he 12 gave the DD 5 to ADA Guy, again without revealing to the prosecutor 13 that Walker refused to sign the statement. Solomeno Dep. Tr. 143–45. 14 ADA Guy testified that he was unaware of any of this and 15 characterized the allegations of the concealment of the refusal to sign 16 as “very troubling,” and, if true, “reprehensible.” Guy Dep. Tr. 117. 17 18 evidence at the least raises an issue of fact as to whether Detective 19 Solomeno fabricated the Walker statement and forwarded it to ADA 20 Guy. See Br. of Appellees 44–46. Their sole argument in favor of 21 dismissal of this evidence fabrication claim is that the allegedly false 22 DD 5 was immaterial in that it did not impact Bellamy’s criminal trial 23 because it was not introduced into evidence and, at trial, Walker did While Detectives Solomeno and Gillen both insist the statement Significantly, the Defendants do not dispute that the above 42 No. 17 1859 1 not identify Bellamy. For support, they rely on DuFort v. City of New 2 York, 874 F.3d 338 (2d Cir. 2017), where we concluded that [m]ere 3 attempts to withhold or falsify evidence cannot form the basis of a 4 § 1983 claim for violation of the right to due process when those 5 attempts have no impact on the conduct of a criminal trial.” Id. at 355. 6 We find DuFort readily distinguishable. 7 8 suggestive lineup,” in which detectives allowed a criminal suspect, 9 DuFort, to wear a red sweatshirt during a lineup despite knowing that 10 the sole eyewitness, Park, had told them that, although she could not 11 identify his face, one of the assailants was wearing a red sweatshirt 12 during the commission of the crime. Id. at 348. Park then selected 13 DuFort out of the lineup but did so based solely on her knowledge 14 that the assailant was wearing a red sweatshirt. During the 15 subsequent criminal trial of DuFort, Park could not identify DuFort 16 and testified that she only selected DuFort at the lineup due to his 17 distinctive clothing. Id. DuFort involved a “paradigmatic example of an improperly 18 DuFort was acquitted and sued the detectives claiming that 19 their manipulation of the lineup violated his right to a fair trial. We 20 rejected the claim, noting that evidence fabrication claims rest on “the 21 right to have one’s case tried based on an accurate evidentiary record 22 that has not been manipulated by the prosecution.” Id. at 355. We 23 concluded that there was no such defect in DuFort’s trial record in 43 No. 17 1859 1 light of Park’s unequivocal and unchallenged testimony to the jury 2 that she only identified DuFort because of his clothing: “the evidence 3 that DuFort claims was withheld or misrepresented was in fact 4 disclosed in a straightforward manner at the trial: the prosecution 5 elicited testimony from [the witness] that she recognized DuFort not 6 by his face, but by his clothing.” Id. Consequently, in DuFort, the jury 7 was presented with the full universe of information, despite any 8 earlier police misconduct. Indeed, we noted that it was “undisputed 9 that [the] attempt [to distort the trial record] failed.” Id. 10 DuFort is far afield from the instant case because it is not clear 11 (and certainly not undisputed) that Detective Solomeno’s allegedly 12 false DD 5 report had “no impact on the conduct of [Bellamy’s] 13 criminal trial.” DuFort, 874 F.3d at 355. (emphasis added). Although 14 Walker did not identify Bellamy as the assailant at trial, there was an 15 unacceptable risk, due only to the allegedly fabricated DD 5, that the 16 jury was left with the potentially incorrect impression that she had 17 done so previously. During Solomeno’s testimony, ADA Guy elicited 18 the fact that Solomemo had prepared a DD 5 to memorialize the 19 interview with Walker. Trial Tr. 802. While ADA Guy did not 20 introduce the DD 5 into evidence, he then asked Walker during her 21 testimony, “didn’t you tell Detective Solomeno and Detective Gillen 22 that you recognized that person as Kareem?” Trial Tr. 1005. Despite 23 Walker’s response of “No,” the jury could have viewed ADA Guy’s 44 No. 17 1859 1 question itself as suggesting that Walker did in fact tell the detectives 2 that it was Bellamy she saw and that ADA Guy had a good faith basis 3 for asking the question. And ADA Guy would have had no basis to 4 ask that question if Detective Solomeno had not provided him with 5 the allegedly fabricated DD 5. We have previously noted that, in 6 contexts such as these, “defense counsel’s unanswered questions 7 about prior inconsistent statements [may] likely alert[] the jury to the 8 issue of the reliability of [the] testimony,” and, even where “the jury 9 was told that the lawyer’s questions are not evidence . . . the sting 10 survives such instructions.” See Washington v. Schriver, 255 F.3d 45, 61 11 (2d Cir. 2001) (internal quotation marks omitted).21 Significantly, 12 ADA Guy then closed the loop in summation when he argued to the 13 jury that it should take stock of what Walker said in her interview 14 with Detectives Solomeno and Gillen. Trial Tr. 1122–23; see also Trial 15 Tr. 1144.22 16 17 DD 5 on Bellamy’s conviction. After the trial, ADA Guy stated that Further evidence supports the material impact of the Walker To analogize to DuFort, it would be as if DuFort’s prosecutor asked Park: “Isn’t it true that you told the detectives that you recognized DuFort wholly apart from his clothing?” But DuFort’s prosecutor asked no such thing. 21 An illustration of the potential for confusion caused by Walker’s testimony is that, in resolving Bellamy’s petition for habeas corpus, the federal district court incorrectly stated that at trial “[t]hree witnesses identified petitioner as present at [t]he scene of the murder.” App’x 613. 22 45 No. 17 1859 1 the DD 5 was “most helpful” to the prosecution. App’x 1752. As he 2 wrote in a post trial “commendation letter” to NYPD Commissioner 3 William Bratton praising Detectives Solomeno and Gillen’s conduct 4 specifically with respect to the Walker DD 5: 5 6 7 8 9 10 11 12 [Detectives Solomeno and Gillen] also helped locate a previously unknown (second) eye witness to the murder and interviewed her in the midst of my trial, and helped secure her appearance, too. She proved to be fairly uncooperative, but because your detectives had prepared a detailed DD 5 of their conversation with her, she had less “wiggle” room, and in the end what she had told the detectives proved most helpful. 13 App’x 1752 (emphasis added). It is therefore plain that ADA Guy, for 14 his part, thought that the DD 5 provided to him by Detective 15 Solomeno was material to Bellamy’s conviction. See also Guy Dep. Tr. 16 208 (testifying that he only sent commendation letters “from time to 17 time in a case that I thought merited a little pat on the back . . . Not 18 many, more than just two or three”). Finally, it bears noting that the 19 jurors apparently attached significance to Walker’s testimony because 20 that testimony prompted their only request for a second readback of 21 particular testimony during deliberations. See Trial Tr. 1209, 1224–26. 22 Under these circumstances, we find that there is “an overwhelming 23 probability that the jury [was] unable to follow the court’s 24 instructions” that the lawyers’ questions are not evidence, and “a 25 strong likelihood that the effect of the evidence [was] devastating to 46 No. 17 1859 1 the defendant.” Greer v. Miller, 483 U.S. 756, 766 n.8 (1987) (citation 2 omitted). 3 4 to the detectives and that her later denials were false, and that 5 Detective Solomeno simply prepared a truthful DD 5 that Walker 6 refused to sign. But this is a quintessentially disputed fact issue, as 7 neither side contests, and it is a material one, as the record shows. We 8 therefore conclude that, notwithstanding DuFort, Bellamy has raised 9 a material issue of fact as to the truth or fabrication of the contents of 10 the DD 5 purportedly memorializing Detectives Solomeno and 11 Gillen’s December 1, 2005 interview with Walker. 12 iii. Carter’s Lineup Identification 13 Of course, it is entirely possible that Walker implicated Bellamy Bellamy contends that Detective Gillen pressured Carter to 14 identify Bellamy in the lineup that took place on May 14, 1994. 15 Specifically, Bellamy contends that Carter initially was indecisive 16 about whether the assailant was in position one or two, but that Carter 17 was then taken to another room with Detective Gillen where 18 Detective Gillen proceeded to put pressure on Carter to identify the 19 individual in position one, which Carter ultimately did. 20 The sole direct evidence supporting this claim appears to be 21 Carter’s testimony at Bellamy’s § 440 proceeding, in which Carter, in 22 recanting his trial testimony, testified that Detective Gillen pointed 23 out Bellamy at the lineup and pressured Carter to identify him. 47 No. 17 1859 1 Subsequent to that testimony, however, Carter died, and Bellamy 2 concedes that Carter’s testimony at the § 440 proceeding will not be 3 admissible at trial. Br. of Appellant at 24 n.10. And, it is axiomatic 4 that, when reviewing a summary judgment determination, we may 5 only consider admissible evidence. See Ehrens v. Lutheran Church, 385 6 F.3d 232, 235 (2d Cir. 2004) (per curiam). Bellamy therefore relies only 7 on a claimed inference in his attempt to raise a genuine issue of fact 8 as to whether Detective Gillen pressured Carter at the lineup. 9 Bellamy focuses on two aspects of Detective Gillen’s testimony: (i) 10 that Detective Gillen told Bellamy to pat down his braids prior to the 11 lineup; and (ii) that Carter then told Detective Gillen that the basis of 12 his confusion as to whether the assailant was in position one or two 13 was the braided hair of the individual in position one. Consequently, 14 Bellamy contends that it is “likely [that Gillen] suggested to Carter the 15 braids explanation for why he had failed to recognize Number 1.” Br. 16 of Appellant at 41. This contention is pure speculation and is 17 therefore insufficient to raise a triable issue of fact. See Harlan Assocs. 18 v. Inc. Village of Mineola, 273 F.3d 494, 502 (2d Cir. 2001). We affirm 19 the district court’s dismissal of this claim of misconduct. 20 b. Evidence Withholding Claims 21 When police officers withhold exculpatory or impeaching 22 evidence from prosecutors, they may be held liable under § 1983 for 23 violating the disclosure requirements of Brady v. Maryland, 373 U.S. 48 No. 17 1859 1 83 (1963).23 See Bermudez v. City of New York, 790 F.3d 368, 376 n.4 (2d 2 Cir. 2015) (citing Walker v. City of New York, 974 F.2d 293, 299 (2d Cir. 3 1992)). To prevail on such a claim, a plaintiff must show the 4 materiality of the nondisclosed evidence, a showing that “does not 5 depend on factual innocence, but rather what would have been 6 proven absent the violation . . . [with] reference to the likely effect that 7 the suppression of [the] particular evidence had on the outcome of the 8 trial.” Poventud v. City of New York, 750 F.3d 121, 134 (2d Cir. 2014) (en 9 banc) (internal quotation marks and emphasis omitted). Stated 10 differently, to show prejudice the claimant “must demonstrate a 11 reasonable probability that, had the evidence been disclosed, the 12 result of the proceeding would have been different.” United States v. 13 Ulbricht, 858 F.3d 71, 112 (2d Cir. 2017) (internal quotation marks 14 omitted). For example, a § 1983 plaintiff proceeding on a Brady theory We have suggested, though without so concluding, that a civil Brady claim requires a showing that the non disclosure was intentional. See Fappiano v. City of New York, 640 F. App’x 115, 118 (2d Cir. 2017 (summary order); see also Darnell v. Pineiro, 849 F.3d 17, 36 (2d Cir. 2017). Even assuming such an intent requirement, we have no need to specifically address, at this stage, the detectives’ intent as to each of the alleged Brady violations here. This is because of the evidence in the record, already discussed, that raises material issues of fact as to whether Detective Solomeno and Gillen’s conducting of the Abbott investigation was improper. See Manganiello v. City of New York, 612 F.3d 149, 164 (2d Cir. 2010) (permitting an inference of a detective’s malice because, “in light of the other evidence as to [the detective’s] conduct of the investigation, [the jury would be entitled] to view [the detective’s] misrepresentation as indicative of [his] state of mind all along”). 23 49 No. 17 1859 1 can succeed on his claim if, had the withheld information been 2 disclosed prior to trial, “he would have been acquitted based on 3 reasonable doubt or convicted on a lesser charge.” Poventud, 750 F.3d 4 at 134–35. 5 Bellamy contends that Detectives Solomeno and Gillen violated 6 Brady by failing to disclose to prosecutors four categories of 7 exculpatory or impeaching statements made by Sanchez and Walker 8 during the course of the investigation of the Abbott murder: first, that 9 in the weeks following the murder, Sanchez told Detective Gillen that 10 she saw Bellamy in the C Town trying to buy beer on a day in which 11 C Town did not (and legally could not) sell beer before noon, which 12 could only have been a Sunday (rather than a Saturday, the day 13 Abbott was killed); second, that Sanchez identified Terrill Lee to 14 Detective Gillen as the person that she saw with Bellamy in the C 15 Town on the morning of Abbott’s murder; third, that on the day of 16 Abbott’s murder Sanchez told Detective Gillen that she “didn’t see 17 anything” and “didn’t know anything”; and fourth, Detectives 18 Solomeno and Gillen failed to disclose Walker’s claimed non 19 identification of Bellamy at her December 1, 1995 interview as well as 20 her refusal to sign the DD 5 attesting that she had so identified 21 Bellamy. We address each in turn. 50 1 No. 17 1859 i. Sanchez’s Sunday/Beer Statement 2 Bellamy contends that Detectives Solomeno and Gillen failed to 3 disclose to the prosecution statements Sanchez made to them during 4 the investigation of the Abbott murder that the day in which she 5 reported seeing Bellamy in the C Town with Abbott was a Sunday 6 and a day in which the C Town could not have lawfully sold beer 7 prior to noon (which could only have been a Sunday). See N.Y. Alco. 8 Bev. Cont. Law § 105 a (1971) (amended 2006). It is undisputed that 9 Abbott was killed on Saturday, April 9, 1994. Although Sanchez’s 10 several rounds of testimony in this legal saga have been consistently 11 inconsistent, Sanchez more than once testified that she told detectives 51 No. 17 1859 1 that she saw Bellamy on a Sunday.24 During Bellamy’s § 440 2 proceeding, she repeatedly testified that Bellamy was trying to buy 3 beer on a Sunday when he could not, and agreed that she “first told 4 police that [she] saw Kareem Bellamy on a Sunday.” First 440 Tr. 458– Sanchez’s testimony as to which day she remembered seeing Bellamy has been, at best, confused. At the grand jury, she testified that Bellamy bought beer on the day in question. App’x 320–23. And at trial, she was asked “[w]hat first caused you to notice the defendant inside that C Town that morning,” to which she responded, “[h]e was buying beer.” Trial Tr. 641. But, ADA Guy followed up with, “[d]id anything direct your attention to the defendant that morning,” to which Sanchez responded, “[h]e was buying beer on a Sunday—on a Saturday that day.” Trial Tr. 642. This self correction is curious, however, because it begs the question why it would have been notable for Sanchez to notice that Bellamy was specifically buying beer on a Saturday. Sanchez sowed further confusion during the § 440 proceeding, where she unequivocally testified that, on the day of the murder, Bellamy “was trying to buy beer on a day he couldn’t buy beer,” clarified that that day was a Sunday, and recalled that the C Town manager even told Bellamy that “you can’t buy beer.” First 440 Tr. 453–60, 490–91. Her story got more confusing at her deposition in this case, when she continued to adamantly assert that she saw Bellamy on “a day that you couldn’t buy beer,” but also that she was certain that the day was a Saturday (a day in which you could buy beer). Sanchez Dep. Tr. 24–27. Sanchez then testified, for the first time, that she specifically remembers it being a Saturday because she “freshen[ed] up [her] memory and speaking to the members of [her] family it was a Saturday because [a family member named Julio] was outside mechanicking on the block.” Sanchez Dep. Tr. 26–27. She even testified that “I told [my family] it was Sunday [and] they said no Linda, it wasn’t Sunday it was Saturday . . . the guy Julio was outside mechanicking and he remember clearly it was Saturday.” Sanchez Dep. Tr. 139–40. Despite accepting her family’s correction that it was a Saturday, Sanchez nevertheless vividly remembered that Bellamy was trying to buy beer on a day that C Town could not sell beer. Indeed, she remembered that Bellamy was upset because he could not buy beer, “I just know he had a look on his face, just body language.” Sanchez Dep. Tr. 37. 24 52 No. 17 1859 1 59. She reaffirmed this testimony in her deposition in this case, 2 testifying that “[a]t some point” she told Detective Gillen that Bellamy 3 was trying to buy beer on the same morning of the murder and that 4 the manager told Bellamy that he could not do so. Sanchez Dep. Tr. 5 37. Although both detectives deny any recollection of these 6 statements by Sanchez, First 440 Tr. 912–13; Gillen Dep. Tr. 162–65; 7 Solomeno Dep. Tr. 116–17, Sanchez’s testimony both at the § 440 8 proceeding and her deposition create a triable question of fact as to 9 whether the statements were made to either of the detectives (and not 10 disclosed to the prosecution). 11 The question then becomes one of materiality. We believe that 12 disclosure of the above statements would have significantly increased 13 the defense’s chances of sowing a reasonable doubt in the jury’s mind 14 about Bellamy’s guilt. As identified in detail, see infra note 24, 15 Sanchez, a key state witness, has consistently held the inconsistent 16 positions that she is certain that the morning she saw Bellamy in the 17 C Town was a day in which the C Town could not lawfully sell beer, 18 but also that the morning was a Saturday. Had defense counsel been 19 able to impeach Sanchez with that obvious inconsistency in front of 20 the jury it would have been of great value to the defense, given how 21 relatively thin the overall evidence was against Bellamy. 22 Indeed, both ADAs Guy and Antignani, as well as Detective 23 Solomeno, conceded in their depositions the materiality of any 53 No. 17 1859 1 statements by Sanchez that she saw Bellamy on a day in which the C 2 Town could not lawfully sell beer. ADA Guy testified that, if he had 3 known about them, he would have likely turned over such statements 4 precisely “so that the defense attorney could explore her confusion as 5 to the date.” Guy Dep. Tr. 127. He continued: “if [Sanchez] 6 remembered that it was a Sunday because you’re not allowed to sell 7 beer on a Sunday before noon, that might give more credence to it,” 8 and “[i]f she had said that to Detective Gillen . . . [he] presumably 9 would have written that in the DD 5.” Guy Dep. Tr. 126–27. 10 Detective Solomeno also agreed, evidenced by his deposition 11 testimony that if he had heard Sanchez make these statements he 12 would have recorded them. Solomeno Dep. Tr. 117. As did ADA 13 Antignani, who testified at his deposition that “if in fact, Linda 14 Sanchez said that to John Gillen, then I think John Gillen should have 15 said it.” Antignani Dep. Tr. 86–87. 16 We therefore conclude that there is sufficient evidence from 17 which a jury could reasonably determine that the nondisclosure of the 18 Sanchez Sunday/beer statements, if they were made to the detectives 19 (another jury question), were actionable Brady violations. Bellamy 20 has therefore raised a triable issue of fact as to this allegation. 21 ii. Sanchez’s Identification of Terrill Lee 22 Bellamy contends that Detective Gillen failed to disclose that, 23 during the investigation, Sanchez identified Terrill Lee as the 54 No. 17 1859 1 individual with Bellamy in the C Town on the day of Abbott’s 2 murder. The contention centers on Sanchez’s testimony during 3 Bellamy’s § 440 proceeding in which she testified that, following the 4 lineup, a detective showed her a Polaroid photo of Lee, whom she 5 then identified to the detective as the person she saw with Bellamy in 6 the C Town on the morning of Abbott’s murder.25 First 440 Tr. 468; 7 see also Gillen Dep. Tr. 170 (discussing that Lee had a Polaroid taken 8 at the precinct). 9 The parties dispute whether Detective Gillen showed Sanchez 10 a photo of Lee (and thus whether Sanchez identified Lee to Detective 11 Gillen). Although Sanchez so testified at the § 440 proceeding, she 12 subsequently did not recall being shown Lee’s photo when testifying 13 at her deposition in this case. Sanchez Dep. Tr. 45–46. However, 14 despite her lack of recollection then (seven years later, and more than 15 twenty years from the alleged incident), she also testified that she had 16 no reason to think she did not tell the truth when she so testified at Defendants contend that the evidence cannot establish that Detective Gillen was the “detective” that Sanchez referenced when she was purportedly shown the Lee photo. Br. of Appellees at 53 (relying on the fact that Sanchez’s testimony only uses the pronoun “they”). The argument is meritless. Sanchez made clear that it was “one” of the “detective[s]” who showed her the photo “after the lineup.” First 440 Tr. 468. And the record makes plain that Detective Gillen was the only detective at the lineup and that he oversaw the lineup. See Trial Tr. 502–09; App’x 293; First 440 Tr. 1109. At the very least, we would be required at this stage to infer that Sanchez’s testimony referenced Detective Gillen. Ultimately, however, the question is for the jury to decide. 25 55 No. 17 1859 1 the § 440 proceeding. Sanchez Dep. Tr. 45–46. While Detective 2 Solomeno and ADAs Antignani and Guy each testified that someone 3 should have shown Lee’s photo to Sanchez, Solomeno Dep. Tr. 169; 4 Antignani Dep. Tr. 122–23; Guy Dep. Tr. 76–77, Detective Gillen and 5 ADAs Antignani and Guy each testified that they did not show 6 Sanchez a photo of Lee and that they do not know if anyone else did. 7 First 440 Tr. 865, 877 (Gillen); First 440 Tr. 1111, 1151–52, 1164, 1165 8 (ADA Antignani); First 440 Tr. 1178, 1210–11 (ADA Guy); Gillen Dep. 9 Tr. 170. 10 Although a close question, we conclude that Bellamy has raised 11 a genuine disputed issue of fact as to whether Sanchez told Detective 12 Gillen that Lee was the individual with Bellamy (and therefore 13 whether Detective Gillen failed to disclose such). See Del. & Hudson 14 Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 177–78 (2d Cir. 1990) 15 (summary judgment non movant need only demonstrate “that there 16 is some evidence which would create a genuine issue,” meaning 17 “more than a scintilla of evidence” and “more than some 18 metaphysical doubt as to the material facts” (internal quotation marks 19 omitted)). 20 The district court came to no conclusion as to the state of the 21 factual record on this allegation, and rather concluded that “even if 22 Sanchez had identified [Lee] as the plaintiff’s companion, it is difficult 56 No. 17 1859 1 to see how that would have been helpful to [Bellamy].” 2017 WL 2 2189528, at *36. We disagree. 3 Because the record makes plain that the detectives had no 4 suspicions that Lee was involved in the Abbott murder, see Gillen 5 Dep. Tr. 170–71; see also Antignani Dep. Tr. 146–47; Guy Dep. Tr. 69– 6 72, any identification of Lee by Sanchez as being in the C Town with 7 Bellamy would seriously undermine the reliability of Sanchez’s 8 placement of Bellamy in the store on the morning of Abbott’s murder. 9 If Lee was not with Bellamy on the morning in question—as the 10 detectives seemingly concluded—and if Bellamy was with Lee at the 11 time Sanchez had in mind during her trial testimony, Sanchez must 12 have been confused about which morning she saw Bellamy, a not 13 unlikely possibility, as previously discussed in depth, see infra note 24, 14 and as one particular exchange highlights.26 And Sanchez’s 15 identification of Lee to Detective Gillen would be material even if 16 Sanchez was wrong about her identification of Lee because it would 17 call into question Sanchez’s general recollection of the morning of the “Q: [Y]ou had seen two people that Sunday? A: Yes. Q: Correct. When you say the other guy are you referring to the other guy you saw that Sunday? A: The other guy that was with Kareem . . . . Q: Where you shown a photograph of this other guy? A: Yes. Q: Okay. And what did—what kind of photograph was it? A: It’s a Polaroid . . . . Q: So they told you that the person in the photograph was Terrell Lee? A: Yes. Q: Well, just—I just want to be clear. And you told them that the person in that Polaroid photo who they told you was Terrell Lee was the person you saw together with Kareem; is that correct? A: Yes.” 440 Tr. 464–68. 26 57 No. 17 1859 1 Abbott murder, including her identification of Bellamy. Either way, 2 had the defense known that Sanchez had at one point contended that 3 Lee was the person with Bellamy on the morning of the murder, the 4 defense would have had an important additional tool of cross 5 examination. 6 Consequently, viewing the evidence in Bellamy’s favor as we 7 must at this stage, we think that Bellamy has raised a genuine issue of 8 material fact as to whether Detective Gillen, in violation of Brady, 9 failed to disclose Sanchez’s identification of Lee. 10 11 iii. Sanchez’s Statements Didn’t Know/See Anything 12 Bellamy contends that Detective Gillen failed to disclose 13 statements Sanchez made on the morning of the Abbott murder that 14 she “didn’t know anything” and “didn’t see anything.” Bellamy 15 grounds this contention on Sanchez’s testimony at Bellamy’s § 440 16 proceeding, where Sanchez testified that on the morning of Abbott’s 17 murder, certain detectives (including Detective Gillen) “came in the 18 [C Town] supermarket. I didn’t speak to them they just came in and 19 they said do you know anything. I said no . . . I said no, I didn’t know 20 anything.” First 440 Tr. 453; see also First 440 Tr. 459 (Sanchez agreeing 21 with the statement that “the police came in on the day of the murder 22 and [she] said [she] didn’t see anything”). These de minimis 23 statements, even if they were made (recall that, at trial, Sanchez 58 No. 17 1859 1 denied speaking with officers the morning of the murder), are 2 manifestly immaterial principally because nothing in the record 3 shows that Sanchez had any reason to think that anything was afoot 4 when Detective Gillen first entered the C Town that morning. 5 Indeed, Sanchez testified at trial that she did not learn of Abbott’s 6 murder until a week later. Trial Tr. 745; see also Trial 652–53.27 7 Consequently, at that time, from her perspective, Sanchez did not 8 “know” or “see” anything out of the ordinary. Disclosure of these 9 statements would therefore not have served to materially impeach 10 Sanchez or exculpate Bellamy. We affirm the district court’s dismissal 11 of this Brady contention. iv. Walker’s December 1, 2005 Statements 12 13 Apart from Bellamy’s claim that Detective Solomeno fabricated 14 the contents of the DD 5 purportedly memorializing the December 1, 15 2005 interview of Veronica Walker, see infra at pp. 39–46, Bellamy also 16 brings a Brady claim challenging Detectives Solomeno and Gillen’s Bellamy contends that Sanchez “admitted she learned of Abbott’s murder ‘when the cops came inside the C Town to ask questions’ about Abbott.” Br. of Appellants 44. But, Sanchez’s testimony makes clear that she only learned about any incident of note from JJ, the C Town deli clerk, who told her about the subject of the officers’ visit only after “the cops were already gone.” First 440 Tr. 493. Consequently, although Sanchez’s testimony has been inconsistent as to whether she first learned of the Abbott murder on the day of April 9, 1994 or in the week thereafter, there is no evidence that she knew of the incident prior to interacting with detectives on the morning of April 9. 27 59 No. 17 1859 1 failure to disclose the statements he claims that Walker actually did 2 make during that interview. See App’x 62 ¶¶ 183–200; App’x 93 ¶ 3 379. Most principally, Bellamy challenges the detectives’ failure to 4 disclose what Walker testified were her unequivocal statements that 5 Bellamy was not the person she saw on the morning of Abbott’s 6 murder, as well as Walker’s refusal to sign Detective Solomeno’s DD 7 5 because the contents, in her view, were not true. 8 The Defendants did not seek summary judgment on this claim, 9 see App’x 734–38, and therefore it was error for the district court to 10 have dismissed it without providing Bellamy “notice and a 11 reasonable time to respond.” Fed. R. Civ. P. 56 (f)(2). This is sufficient 12 by itself to vacate the district court’s dismissal of this claim. 13 We would arrive at the same outcome even if the Defendants 14 had sought summary judgment on this claim. For similar reasons that 15 we concluded that Bellamy has raised a triable issue of fact as to his 16 evidence fabrication claim premised on the DD 5 following the 17 Walker interview, we conclude that Bellamy has raised a triable issue 18 as to the related Brady claim. Walker’s testimony raises a genuine 19 disputed issue as to whether Walker affirmatively told the detectives 20 that the individual she saw was not Bellamy, and both detectives 21 admit that Walker refused to sign the DD 5 and that they did not tell 22 ADA Guy that she had so refused. If her denial existed from the 23 outset (which we hold to be a jury question), then its disclosure would 60 No. 17 1859 1 have weakened ADA Guy’s examination while permitting the 2 criminal defense team to refresh Walker’s recollection as to whether 3 earlier she firmly denied seeing Bellamy, a fact that did not come out 4 at trial. Thus, this claim even if it had been challenged at summary 5 judgment, should not have been dismissed. 6 II. Monell Claims Against the City of New York 7 We now turn to whether the district court properly dismissed 8 Bellamy’s § 1983 claims against the City of New York. Although 9 § 1983 subjects only “person[s]” to liability, 42 U.S.C. § 1983, Monell 10 established that “a municipality [such as the City of New York] is a 11 person within the meaning of Section 1983,” Vives v. City of New York, 12 524 F.3d 346, 350 (2d Cir. 2008). To establish liability under Monell, a 13 plaintiff must show that he suffered the denial of a constitutional right 14 that was caused by an official municipal policy or custom. See Wray 15 v. City of New York, 490 F.3d 189, 195 (2d Cir. 2007). 16 As relevant here, Bellamy proffers two theories of Monell 17 liability: (i) the prosecution failed to disclose the full relocation 18 benefits Sanchez received from the QCDA’s office, a Brady violation 19 that was caused by a deliberate information barrier imposed by the 20 QCDA that purposefully kept prosecutors unaware of the full 21 benefits received by witnesses in its witness protection program 22 (“WPP”); and (ii) ADA Guy’s improper summation was a due process 23 violation caused by the QCDA office’s failure to discipline 61 No. 17 1859 1 summation misconduct.28 The City challenges Bellamy’s Monell 2 claims on two general grounds: (i) the City is not responsible as a 3 matter of law under Monell for the alleged policies of the QCDA; and 4 (ii) regardless, Bellamy did not sufficiently establish underlying due 5 process violations to withstand summary judgment.29 We disagree 6 with both contentions and vacate the district court’s dismissal of 7 Bellamy’s Monell claims. Bellamy also pled a claim that the QCDA’s office failed to discipline Brady violations, specifically as to its prosecutors’ failure to diligently search out the benefits received by its witnesses. Defendants did not specifically move for summary judgment on this claim and the district court did not address it, which means that its dismissal was improper. See Fed. R. Civ. P. 56(f)(2). Bellamy affirmed on appeal his intention to proceed on this claim, yet Defendants did not address it in their brief. See Br. of Appellant 48 n.15; Reply Br. of Appellant 11 n.5. We decline to address this claim in the first instance. 28 Whether the QCDA in fact had the challenged policies is not at issue before us. Following the denial of the Defendants’ motion to dismiss, the district court bifurcated discovery on Bellamy’s non Monell and Monell claims by allowing the completion of non Monell discovery but limiting Monell discovery to “the question whether any of the plaintiff’s federal constitutional rights were violated by the actions of the district attorney’s office.” Dkt. No. 52. Although the parties subsequently stipulated to proceed to full discovery on Bellamy’s Monell claims, Dkt. No. 112, including as to the existence of the alleged policies, the district court subsequently re imposed the discovery stay before Bellamy took any Monell depositions pending resolution of the parties’ summary judgment motions. See Dkt. No. 152. Consequently, Bellamy has yet to have full discovery as to the existence of the alleged policies, and the City makes no argument regarding the existence of the policies on appeal. 29 62 No. 17 1859 2 a. The City of New York’s Liability Under Monell for the Alleged Policies of the QCDA’s Office 3 The City argues that it cannot be held liable as a matter of law 4 for any constitutional harms inflicted by the alleged policies of the 5 QCDA’s office that give rise to Bellamy’s Monell claims because those 6 were not policies for which the City is responsible. The district court 7 agreed, but we do not. 1 8 Monell liability attaches only where an infringement of 9 constitutional rights is caused by a local government policy. See 10 Outlaw v. Hartford, 884 F.3d 351, 372–73 (2d Cir. 2018). In searching 11 for the proper local government that is subject to liability on a given 12 Monell claim we look for “those official or governmental bodies who 13 speak with final policymaking authority . . . concerning the action 14 alleged to have caused the particular . . . violation at issue.” Jett v. 15 Dallas Ind. Sch. Dist., 491 U.S. 701, 737 (1989). The issue for us is thus 16 whether the City of New York is the “final policymaking authority” 17 in relation to the alleged QCDA policies at issue here: the WPP 18 information barrier and the failure to discipline summation 19 misconduct. The City argues, as the district court concluded, that 20 pursuant to Van de Kamp v. Goldstein, 555 U.S. 335 (2009), the 21 challenged conduct of the QCDA’s office is necessarily a function of 22 state policies, and therefore the City may not be subject to Monell 23 liability as a matter of law. We think this argument overextends Van 63 No. 17 1859 1 de Kamp, a case assessing the distinct doctrine of prosecutorial 2 immunity, and that our controlling precedent plainly establishes that 3 the City may be held liable under Monell for the alleged QCDA 4 policies at issue. 5 On numerous occasions we have been called upon to assess 6 how plaintiffs may pursue claims under Monell that allege that 7 policies of prosecutors’ offices led to infringements of their 8 constitutional rights. To adequately explain why we conclude that 9 the City is a proper defendant with respect to Bellamy’s Monell claims 10 here, a brief review of these cases will be helpful. 11 In Baez v. Hennessy, 853 F.2d 73 (2d Cir. 1988), Baez sued an 12 Onondaga County prosecutor, and the county under Monell, after the 13 prosecutor improperly indicted Baez based on an erroneous reading 14 of a grand jury vote sheet. We affirmed dismissal of both claims, 15 concluding that the prosecutor was protected by absolute 16 prosecutorial immunity and, relevant here, that the county was not a 17 proper party for a Monell claim. As to the latter conclusion, we 18 reasoned that “[w]hen prosecuting a criminal matter, a district 19 attorney in New York State, acting in a quasi judicial capacity, 20 represents the State and not the county.” Id. at 77. And because the 21 prosecutor was representing the state, the county could not be held 22 legally responsible for injuries that the prosecutor had caused. 23 Although we have never questioned the conclusion in Baez that a 64 No. 17 1859 1 prosecutor is a state rather than a local representative “[w]hen 2 prosecuting a criminal matter,” id., our subsequent cases have 3 narrowed Baez in significant and relevant ways. 4 We began to cabin Baez in Gentile v. County of Suffolk, 926 F.2d 5 142 (2d Cir. 1991), where we affirmed a judgment concluding that the 6 County of Suffolk, rather than the state, was the responsible party for 7 purposes of Monell in relation to allegations that the county’s district 8 attorney’s office had a policy of ignoring police misconduct. We 9 rejected the argument that, under Baez, the district attorney’s office’s 10 conduct was a function of state rather than county policies because, 11 unlike in Baez, “the County’s liability is based not upon a specific 12 decision of the District Attorney to prosecute but upon the County’s 13 long history of negligent disciplinary practices regarding law 14 enforcement personnel.” Id. at 152 n.5. 15 We then reaffirmed and further developed the narrowing of 16 Baez in Walker v. City of New York, 974 F.2d 293 (2d Cir. 1992), 17 specifically noting that Gentile “confined Baez to challenges to specific 18 decisions of the District Attorney to prosecute.” Id. at 301 (internal 19 quotation marks omitted). Moreover, Walker also made plain that 20 when a Monell claim challenges policies of the City of New York’s 21 “constituent counties,” the City is a proper defendant. Id.; see also 22 Ramos v. City of New York, 285 A.D.2d 284, 303 (1st Dep’t 2001). Walker 23 reversed the dismissal of Monell claims against the City of New York 65 No. 17 1859 1 that alleged that the Kings County District Attorney’s office failed to 2 adequately train its prosecutors to turn over exculpatory evidence 3 and not to suborn perjury. We concluded that in such an instance, 4 notwithstanding Baez, “the district attorney is a municipal 5 policymaker,” because in making decisions other than whether to 6 prosecute the “district attorney acts as the manager of the district 7 attorney’s office,” which, we concluded, is a municipal function. 974 8 F.3d at 301. In Ying Jing Gan v. City of New York, 996 F.2d 522 (2d Cir. 9 1993), we reaffirmed Walker and clarified that a county prosecutor’s 10 actions are a function of state policies, rather than city policies, only 11 where plaintiff’s “claims center[] . . . on decisions whether or not, and 12 on what charges, to prosecute,” and not where those claims focus “on 13 the administration of the district attorney’s office.” Id. at 536; see also 14 Pinaud v. County of Suffolk, 52 F.3d 1139, 1153 n.14 (2d Cir. 1995). 15 Subsequent to these cases, the Supreme Court decided 16 McMillian v. Monroe County, Alabama, 520 U.S. 781 (1997), a case that 17 addressed Monell liability outside of the context of a prosecutor’s 18 office, but that clarified the scope of analysis for Monell claims 19 generally. The Court held that Monroe County, Alabama was not the 20 relevant policymaker for purposes of a Monell claim that asserted 21 unconstitutional conduct of a Monroe County sheriff. How the Court 22 arrived at that conclusion is significant: it examined Alabama law in 23 detail and concluded that the state was the relevant final policymaker 66 No. 17 1859 1 because it had sufficient authority over the sheriff’s specific functions 2 at issue. Id. at 786. The Court relied heavily on the Alabama state 3 constitution, for example, which evinced “‘the framers’ intent to 4 ensure that sheriffs be considered executive officers of the state.’” Id. 5 at 789 (quoting Parker v. Amerson, 519 So.2d 442, 444 (Ala. 1987)). The 6 relevant lesson from McMillian is plain: because “the States have 7 wide authority to set up their state and local governments as they 8 wish,” a search for the “final policymaking authority” under Monell 9 “is dependent on an analysis of state law.” Id. at 786, 795. 10 In Myers v. County of Orange, 157 F.3d 66 (2d Cir. 1998), in light 11 of McMillian’s directive to delve into state law to ascertain a final 12 policymaker for purposes of Monell liability, we revisited our cases 13 discussed above that broadly applied Monell to prosecutors’ offices. 14 There, we addressed Monell claims brought against the New York 15 County of Orange that alleged that the county’s district attorney’s 16 office had an unconstitutional policy of refusing to entertain cross 17 complaints by complaining witnesses. Id. at 69. After reviewing a 18 wealth of New York statutory and case law (which our earlier cases 19 had not done), we reaffirmed our earlier conclusions that “[u]nder 20 New York law, DAs and ADAs are generally presumed to be local 21 county officers, not state officers,” and reiterated once again that Baez 22 was a “narrow exception . . . [for] when a prosecutor makes individual 23 determinations about whether to prosecute.” Id. at 76–77. 67 No. 17 1859 1 Because we have never doubted the rule stemming from the 2 line of cases extending from Gentile and Walker to Myers, we have been 3 consistent in holding that the actions of county prosecutors in New 4 York are generally controlled by municipal policymakers for 5 purposes of Monell, with a narrow exception emanating from Baez 6 being the decision of whether, and on what charges, to prosecute. 7 Thus, in this case, the rule from these cases requires the conclusion 8 that the conduct Bellamy challenges is a result of municipal rather 9 than state policymaking. The City does not dispute this reasoning 10 based on our precedents, informed along the way by the Court’s 11 decision in McMillian. The City’s sole contention is that our Walker 12 line of cases was implicitly abrogated by the Supreme Court’s 2009 13 decision in Van de Kamp, “requir[ing] a different boundary between 14 prosecutorial and administrative functions than the one [we have] 15 previously set forth.” Br. of Appellees at 67. We disagree. 16 In Van de Kamp, plaintiff Goldstein obtained a vacatur of his 17 state murder conviction by a grant of federal habeas corpus on the 18 ground that the prosecution failed to disclose to the defense that they 19 had offered a reduced sentence to a witness that provided critical 20 inculpatory testimony. 555 U.S. at 339. As relevant here, Goldstein 21 then filed a civil § 1983 claim against his prosecutors’ supervisors (as 22 individuals), arguing that they failed to train or supervise their 23 prosecutors to prevent violations of the duty to disclose impeachment 68 No. 17 1859 1 material. Id. at 340. The defendants moved to dismiss on the basis of 2 absolute prosecutorial immunity, an argument the district court 3 rejected on the ground that prosecutors are entitled to absolute 4 immunity only for “prosecutorial” functions, not “administrative” 5 ones, and that the failure to train allegations fell in the latter category. 6 Id. The Court of Appeals affirmed, 481 F.3d 1170 (9th Cir. 2007), but 7 the Supreme Court reversed. It disagreed with the lower courts’ 8 conclusions that a prosecutor is not entitled to immunity simply 9 because her challenged conduct can be labeled “administrative.” 10 Rather, the inquiry is whether the prosecutor’s conduct 11 (administrative or otherwise) was “directly connected with the 12 conduct of a trial.” 555 U.S. at 344. If so, the Court concluded, the 13 conduct falls within the traditional immunity offered to prosecutors 14 under long standing notions of federal common law. 15 Although Van de Kamp said nothing about Monell or municipal 16 liability, the City argues that Van de Kamp affects how Monell claims 17 can proceed against prosecutors’ offices specifically. Its argument is 18 as follows. In the Walker line of cases, we concluded that inherently 19 prosecutorial functions (i.e., decisions whether to prosecute) are 20 controlled by state policies for purposes of Monell, and other functions 21 of the prosecutor are controlled by municipal policies. For example, in 22 Baez, the act of indicting based on a misread grand jury verdict form 23 was inherently prosecutorial and therefore a state function, but, in 69 No. 17 1859 1 Walker, the failure to train on Brady obligations related to the district 2 attorney’s management of the office, and we therefore concluded that 3 was a municipal function. Consequently, the argument goes, our 4 Monell cases have drawn separate circles around “prosecutorial” and 5 “managerial” functions, with the former circle being state controlled 6 functions and the latter municipally controlled ones. The argument 7 then goes that although our cases have narrowed the “prosecutorial” 8 circle such that it includes only the prosecutor’s decision to bring 9 charges, Van de Kamp expanded the circle of prosecutorial functions 10 to include a failure to train on Brady obligations (which, the City 11 argues, is akin to Bellamy’s arguments here). Thus, the argument 12 concludes, because Bellamy’s claims pertain to conduct that now falls 13 within the “prosecutorial” circle, and New York concludes 14 “prosecutorial” conduct is a state function, the conduct supporting 15 Bellamy’s Monell claims must be a state rather than a municipal 16 function. We are unpersuaded. 17 The key flaw in the City’s argument is its unsupported 18 assumption that the circle demarcating what is a “prosecutorial” 19 function for purposes of prosecutorial immunity is necessarily the 20 same as the circle New York has chosen to demarcate state versus 21 local prosecutorial functions. But, the legal question of when 22 immunity should attach is an entirely separate inquiry from which 23 state entity is a final policymaker for Monell. This was the reasoning 70 No. 17 1859 1 adopted in Goldstein v. City of Long Beach, 715 F.3d 750 (9th Cir. 2013), 2 the lower court decision that followed the Supreme Court’s remand 3 in Van de Kamp. Although the Court had rejected plaintiff’s individual 4 claims, the Ninth Circuit was left to evaluate plaintiff’s remaining 5 Monell claims. The defendants argued on remand, as the City does 6 here, that “Van de Kamp determines the outcome” of the Monell claims. 7 Id. at 760. The Ninth Circuit rejected the argument because “the 8 inquiries of prosecutorial immunity and state or local policymaking . 9 . . are separate.” Id. We agree. In contrast to the immunity inquiry, 10 Monell addresses not whether certain functions can open individuals to 11 liability, but simply which governmental entity (the state or the 12 municipality) is responsible for a given function. And as we have 13 discussed, the Supreme Court has left no doubt that state law, not 14 federal law, is responsible for demarcating that division of 15 responsibility. The McMillian court was worried about imposing “a 16 uniform, national characterization” of state actors, concerned that 17 “such a blunderbuss approach would ignore a crucial axiom of our 18 government: the States have wide authority to set up their state and 19 local governments as they wish.” 520 U.S. at 795. Consequently, the 20 responsible entity for purposes of Monell liability must be ascertained 21 by looking at how the relevant state elects to allocate responsibilities 22 between itself and its subdivisions. Id. 71 No. 17 1859 1 The City’s contention, if adopted, would turn McMillian on its 2 head: it would require courts assessing Monell claims that challenge 3 the conduct of prosecutors to consider the way in which the federal 4 system chooses to immunize prosecutors in determining which 5 functions are state functions and which are local ones. Stated 6 differently, under the City’s formulation, we would no longer be 7 looking to the intricacies of state law to decide a Monell claim against 8 a prosecutor’s office, as we did in Myers (at the express direction of 9 McMillian), but would instead look to Van de Kamp, a decision 10 exclusively assessing federal common law and federal policy.30 11 Such a course would adversely affect state reliance interests as 12 well: New York appellate courts have expressly affirmed our 13 conclusions as to the content of New York law in Walker and Myers. 14 See Ramos, 285 A.D.2d at 303 (concluding as “firmly grounded in New 15 York law,” the conclusion from Gentile, Walker, and Myers that “where 16 prosecutors, pursuant to policy or custom, conceal exculpatory 17 evidence and commit other wrongs in order to secure a conviction, 18 liability rests with the county (or for New York City’s constituent The focus on federal common law was center stage in Van de Kamp. See 555 U.S. at 340–41 (looking to Judge Learned Hand’s policy statements from “[o]ver a half century ago”); see also id. (relying on Imbler v. Pachtman, 424 U.S. 409 (1976), the Court’s “first opportunity to address the s 1983 liability of a state prosecuting officer,” which then relied on federal cases dating back to the mid 19th century, id. at 420–22 & n.18)). 30 72 No. 17 1859 1 counties, the City)”); Johnson v. Kings Cnty. Dist. Atty’s Office, 308 2 A.D.2d 278, 295–96 (2d Dep’t 2003) (same). 3 Thus we conclude, consistent with our precedent, that the City 4 is the proper policymaking authority for purposes of Bellamy’s Monell 5 claims. 7 b. The Alleged Constitutional Violations of the QCDA’s Office 8 Bellamy proffers two underlying constitutional violations for 9 which he claims the City is responsible: (i) the non disclosure to the 10 prosecution (and therefore to the defense) of the full benefits Sanchez 11 was promised as part of her participation in the QCDA’s WPP; and 12 (ii) summation misconduct by ADA Guy. We conclude that Bellamy 13 has presented sufficient evidence of both violations to withstand the 14 motion for summary judgment. 6 15 i. Benefits Promised to Sanchez 16 Bellamy contends that Sanchez was promised significantly 17 more financial support from the QCDA than the $100 and undefined 18 relocation benefits to which she testified at trial. See Trial Tr. 633–35. 19 The district court, despite appearing to acknowledge that the record 20 established that Sanchez was promised substantially more than that 21 to which she testified, rejected the claim because the promised 22 “benefits did not arise until after the plaintiff’s trial, and did not affect 23 the trial itself.” 2017 WL 2189528, at *40. This was error. 73 No. 17 1859 1 The record unmistakably raises a question of fact as to whether 2 Sanchez was promised, prior to her testifying, substantially more 3 than she ultimately disclosed during her testimony. Specifically, 4 there is evidence in the record that Sanchez was promised, before 5 trial, that the QCDA’s office would relocate her, and, in doing so, 6 would pay for her first month’s rent, last month’s rent, security 7 deposit, and a broker fee, totaling $2,800. See Sanchez Dep. Tr. 79–97, 8 147–148; Dkt. No. 193 1 at 291 (Sanchez testimony at the initial § 440 9 proceeding). Daniel Cox, the WPP administrator who worked 10 directly with Sanchez, testified at his deposition that his office 11 generally referred to this as “Seed Money,” and that he would tell 12 program participants “early when you’re starting to have 13 conversations” that they would be receiving it. Cox Dep. Tr. 43. Cox 14 clarified that he would tell participants about the seed money “at [the] 15 first meeting,” which, as to Sanchez, would have been on November 16 28, 1995, prior to her testifying. Cox Dep. Tr. 100–01; but see Mansfield 17 Dep. Tr. 75–76 (“of course” we would make no specific promises 18 during the orientation). In any event, Corporation counsel conceded 19 at oral argument before us that a reasonable jury could conclude on 20 this evidence that Cox promised Sanchez the seed money prior to her 21 testifying. Oral Arg. Rec. at 36:04. And, ADA Guy testified at his 22 deposition that he was never aware of the promised seed money, 74 No. 17 1859 1 either at the time of trial or even at the time of his deposition in this 2 case. Guy Dep. Tr. 138–39. 3 As corporation counsel’s concession makes plain, the City does 4 not seriously dispute any of the above and argues only that Bellamy 5 was not prejudiced by the lack of disclosure because the benefits that 6 were disclosed at trial provided a sufficient basis for defense counsel 7 to attack Sanchez’s credibility. We disagree. The potential for witness 8 bias is of course greater when the amount to be received is $2,800 as 9 opposed to $100 (4 x $25/day), particularly for a witness of limited 10 financial means like Sanchez, see App’x 1622. Further, the actual 11 benefit promised was substantially larger than that to which Sanchez 12 testified, which would have allowed for a heightened attack on 13 Sanchez’s truthfulness. Moreover, ADA Guy both conceded that the 14 promise of $2,800 of seed money was Brady material and explained 15 why the information was particularly probative in this case: “[The] 16 dollar amount and total benefit amount is at odds with [Sanchez’s 17 trial] testimony. So it might affect her credibility and [if I were 18 defense counsel] I might be able to make some use of that in asking 19 the jury to disregard her or to at least challenge her credibility.” Guy 20 Dep. Tr. 138–41. Finally, the problem was exacerbated when ADA 21 Guy, in his summation, noted the absence of evidence supporting the 22 defense’s contention that Sanchez had a motive to lie out of bias. See 23 Trial Tr. 1139 (“Why would she come in and lie about the defendant? 75 No. 17 1859 1 Is there any evidence that she had any motivation to come in and lie 2 about the defendant?”); Trial Tr. 1144 (“There is no evidence she is a 3 liar.”). 4 We therefore conclude that Bellamy raised a material issue of 5 fact as to whether his Brady rights were violated by the QCDA’s non 6 disclosure of the full scope of benefits promised to Sanchez prior to 7 her testimony. And, in light of our conclusion that the City of New 8 York may be held liable for this conduct, we vacate the district court’s 9 dismissal of this Monell claim. 10 ii. ADA Guy’s Summation 11 Bellamy contends that ADA Guy made numerous improper 12 remarks during his summation sufficient to render Bellamy’s 13 subsequent conviction a denial of due process. The district court 14 disagreed, largely on its conclusion that ADA Guy’s “comments were 15 garden variety summation comments.” 2017 WL 2189528, at *41. We 16 disagree and conclude that the impact of the summation on the trial 17 presents a jury question. 18 19 20 21 22 23 24 25 In United States v. Certified Environmental Services, Inc., 753 F.3d 72 (2d Cir. 2014), we discussed the relevant standard: When reviewing claims of prosecutorial misconduct based on inappropriate remarks in the Government’s . . . summation[], we will reverse if the misconduct caused substantial prejudice by so infecting the trial with unfairness as to make the resulting conviction a denial of due process. In assessing whether 76 1 2 3 4 5 6 No. 17 1859 prosecutorial misconduct caused ‘substantial prejudice,’ this Court has adopted a three part test, which considers the severity of the misconduct, the measures adopted to cure the misconduct, and the certainty of conviction absent the misconduct. Id. at 95 (internal quotation marks and citations omitted). 7 Bellamy contended at summary judgment that ADA Guy made 8 fourteen improper summation remarks. App’x 1969–72. Bellamy 9 contends these remarks were sufficiently improper to entitle him to 10 relief under § 1983, even though his counsel did not object to them 11 during trial (or afterwards). While we are not persuaded that the 12 majority of the remarks identified by Bellamy were either improper 13 or could have affected the trial, we believe that certain remarks were 14 sufficiently problematic to require that they be assessed by a jury 15 (despite the absence of a contemporaneous objection by trial counsel). 16 The most problematic is Bellamy’s contention that ADA Guy 17 told the jury near the end of his summation: “I know who committed 18 the murder.” Trial Tr. 1149. This statement was clearly improper and 19 severely prejudicial if it was made. “It is unprofessional conduct for 20 the prosecutor to express his or her personal belief or opinion as to 21 the . . . evidence or guilt of the defendant.” United States v. Modica, 663 22 F.2d 1173, 1178 (2d Cir. 1981) (per curiam) (quoting ABA Standards for 23 Criminal Justice, Standard 3 5.8(b)); see also U.S. v. Burse, 531 F.2d 24 1151, 1154–55 (2d Cir. 1976) (a prosecutor may not give “the 77 No. 17 1859 1 impression that the government ha[s] within its possession evidence 2 of [the defendant’s] guilt which had not been given the jury”); United 3 States v. Rivera, 22 F.3d 430, 437–38 (2d Cir. 1994) (“use of the personal 4 pronoun ‘I’ . . . tends to [improperly] make an issue of [the 5 prosecution’s] own credibility” (internal quotation marks and 6 alterations omitted)). We have concluded that the “policies 7 underlying this proscription go to the heart of a fair trial.” Modica, 8 663 F.2d at 1178. In short, it is the height of summation misconduct 9 for a prosecutor to argue to the jury his personal opinion as to a 10 defendant’s guilt. 11 Defendants do not dispute that had the statement been made it 12 would have been serious misconduct; rather, they point to ADA 13 Guy’s deposition testimony denying that he made the remark and 14 contending that there was simply a transcription error in the trial 15 record. Guy Dep. Tr. 154–55, 232 (stating that he said “[you] know 16 who committed the murder”). But, on a motion for summary 17 judgment, we must draw all inferences in favor of the non movant, 18 which requires us to accept the inference that the trial transcript 19 accurately depicts what occurred at trial. 20 Regardless, that remark, if it occurred, does not stand alone. 21 Also improper was ADA Guy’s comment, again made near the end 22 of his summation, that “you [Bellamy] are not going to get away with 23 it, not this time.” Trial Tr. 1150 (emphasis added). Viewed in Bellamy’s 78 No. 17 1859 1 favor, this statement permitted the inference that Bellamy had 2 committed other uncharged crimes at other times (murder, no less, 3 the crime for which Bellamy was on trial) and that the government 4 had evidence of those crimes to which the jury was not privy. See 5 United States v. Farmer, 583 F.3d 131, 146 (2d Cir. 2009) (improper to 6 make remarks “suggestive of a [defendant’s] criminal disposition” 7 where that remark has no otherwise “legitimate relationship to the 8 crimes charged,” especially where the remark hints at “a propensity 9 to commit particularly heinous crimes,” such as murder, “including 10 the very offenses charged in the indictment” (internal quotation 11 marks omitted)); Burse, 531 F.2d at 1155; see also Manning v. Artuz, 12 1996 WL 294359, at *3, *5 (E.D.N.Y. May 29, 1996) (prosecutor’s 13 summation statement that “the gun recovered by the police was the 14 ‘tool of [Petitioner’s] trade’ . . . overstepped the bounds of proper 15 summation”). 16 ADA Guy’s summation contained other improper remarks. In 17 arguing to the jury that the evidence showed that Carter identified 18 Bellamy at the lineup, ADA Guy told the jury that they “don’t have 19 to take my word” on the subject, Trial Tr. 1137 (emphasis added), but, 20 as discussed, a prosecutor may not inform the jury either way what 21 his “word” is. See Modica, 663 F.2d at 1178–79. Also crossing the line 22 was ADA Guy’s rhetorical question to the jury, in a case where the 23 government put in no evidence of motive: “Where is there proof 79 No. 17 1859 1 defendant had no motive to kill somebody?” Trial Tr. 1133. Of 2 course, Bellamy was under no obligation to prove the absence of a 3 motive and it is difficult to see how a defendant could possibly do so. 4 At another point, ADA Guy remarked that Bellamy “is a liar,” Trial 5 Tr. 1148, a comment we have found deserving of admonishment, 6 especially where, as here, “such characterization is applied to a 7 [criminal] defendant . . . [where] the risk of prejudice is greater.” 8 United States v. Leeds, 457 F.2d 857, 860–61 (2d Cir. 1972). 9 The trial court took no “curative measures” to obviate the 10 harms from these improper comments, see United States v. Espinal, 981 11 F.2d 664, 666–67 (2d Cir. 1992), but the reason for that is clear: 12 Bellamy’s defense counsel did not object to them nor subsequently 13 seek a curative instruction.31 A defense counsel’s failure to object to 14 an improper summation remark undercuts the probative value of the 15 subsequent lack of a curative measure. See United States v. Melendez, 16 57 F.3d 238, 242 (2d Cir. 1995) (generally, “the failure to request 17 specific instructions before the jury retires will limit the defense’s 18 ability to complain about the relative lack of curative measures for the 19 first time on appeal”); but see id. (a “failure to request specific Defense counsel objected three times during ADA Guy’s summation, but not with respect to any of the comments we identify above. See Trial Tr. 1127, 1129, 1143. 31 80 No. 17 1859 1 instructions may be overlooked where the prosecutor’s misconduct is 2 so prejudicial that no instruction could mitigate its effects”).32 3 But, “[c]urative measures constitute only one part of the 4 analysis.” Espinal, 981 F.2d at 667. As identified above, the third 5 component of our due process test requires, notwithstanding the lack 6 of an objection from defense counsel, that we still ask how confident 7 we are that the criminal defendant would have been convicted absent 8 the summation misconduct. We must as a consequence take stock of 9 the realities of the trial in which the summation misconduct due 10 process violations are said to occur. For example, in Farmer, we found 11 that the prosecutor’s “flagrant abuse” through his summation 12 remarks, not objected to by defense counsel, was insufficient to 13 warrant reversal of one of the defendant’s convictions because the 14 defendant’s guilt on that charge “was supported by such 15 overwhelming evidence that conviction was a certainty,” but the 16 improper summation remarks did warrant reversal of defendant’s 17 conviction on a different charge for which the evidence “was far less 18 conclusive.” 583 F.3d at 147–48. As we concluded, “the determinative 19 factor [was] the weight of the evidence.” Id. at 147. We also note that Bellamy did not raise this summation misconduct issue on direct appeal or as part of his habeas corpus petition. But, there is no general exhaustion requirement under § 1983. See Roach v. Morse, 440 F.3d 53, 56 (2d Cir. 2006). 32 81 No. 17 1859 1 If the trial evidence here had clearly pointed to Bellamy’s guilt, 2 we would have no hesitation in rejecting his improper summation 3 claim on this record. See Espinal, 981 F.2d at 666–67; Farmer, 583 F.3d 4 at 147–48. The bar for concluding that unobjected to summation 5 remarks amount to a due process violation is appropriately high. 6 And we also acknowledge that as an appellate court we should be 7 wary of “cherry picking” improper yet isolated remarks from a cold 8 record made during a lengthy summation, especially where defense 9 counsel, who witnessed the statements live in court, offered no 10 contemporaneous objection. But here, it is difficult to conclude other 11 than that Bellamy’s criminal trial existed at the cusp of reasonable 12 doubt. Thus we conclude that a civil jury evaluating Bellamy’s due 13 process claim could reasonably find that ADA Guy’s improper 14 remarks pushed this case over the line. 15 Heading into summations, the QCDA’s office had major 16 misgivings about the quality of its case. See generally People v. Bellamy, 17 84 A.D.3d 1260, 1262 (2d Dep’t 2011) (stating that there was “less than 18 overwhelming evidence against [Bellamy]”); see also App’x 2088 19 (documenting the jury’s prolonged and difficult deliberations). 20 Discovery revealed that ADA Guy himself, after the close of evidence, 21 thought the case had “sort of crumbled in [his] hand,” and that he 22 “needed something else.” App’x 1715. ADA Guy met with other 23 prosecutors, including his bureau chief, prior to giving his summation 82 No. 17 1859 1 because they all “sensed there was a problem going on.” Guy Dep. 2 Tr. 44–45, 192–93. And ADA Guy admitted during his deposition that 3 although earlier he thought he had a strong case against Bellamy, by 4 the time the evidence had closed “it was closer to being a weak case 5 for the prosecution.” Guy Dep. Tr. 46. In his deposition, ADA Guy 6 acknowledged that “[t]here was also enough weakness that a jury 7 could’ve said, no, we have a reasonable doubt.” Guy Dep. Tr. 193. 8 Indeed, “[t]he general consensus,” ADA Guy acknowledged, “was 9 that [he] needed a very strong summation in order to sort of salvage 10 this case. . . . I thought I was in trouble.” App’x 1718. 11 ADA Guy then delivered his “very strong summation,” App’x 12 1718, but one that was supported by what our cases have consistently 13 described as improper remarks that tend to sway the jury in 14 constitutionally impermissible ways. The principal statements with 15 which we take issue were given at the very end of ADA Guy’s 16 summation, which, in New York, follows the defense summation and 17 is not subject to rebuttal. Thus, if the transcript is to be believed, the 18 nearly final words the jury heard before entering deliberations were 19 ADA Guy’s statement that he, as the prosecutor, knew that Bellamy 20 killed Abbott and that Bellamy was not going to get away with it, “not 21 this time.” Viewed in this context, and considering the other 22 inappropriate comments we have identified, we conclude that 23 Bellamy has raised a triable issue of fact as to whether ADA Guy’s 83 No. 17 1859 1 summation “so infect[ed] [Bellamy’s] trial with unfairness as to make 2 [his] resulting conviction a denial of due process.” Certified Env. 3 Servs., Inc., 753 F.3d at 95. CONCLUSION 4 5 For the foregoing reasons, we VACATE in part and AFFIRM in 6 part the judgment of the district court and REMAND for further 7 proceedings consistent with this opinion.33 Bellamy requests that we assign this case on remand to a different district judge. The request is denied. 33 JACOBS, Circuit Judge, dissenting in part: I respectfully dissent insofar as the majority opinion vacates the grant of summary judgment on qualified immunity for Detectives Solomeno and Gillen, and vacates the grant of summary judgment dismissing the Monell claims against the City of New York. The facts of the matter are set forth meticulously in the majority opinion. I The majority opinion vacates the dismissal of two claims alleging fabrication of evidence. Bellamy’s “Murder” Statement. Bellamy, who had been identified as the murderer, was picked up ostensibly for drinking an alcoholic beverage in public. Det. Gillen testified that, when he made the arrest, Bellamy blurted out: “This must be a case of mistaken identity; someone probably accused me of murdering someone. Why would someone accuse me of something I didn’t do?” App’x 290. Bellamy denies making the statement. On that self serving denial alone, the majority opinion allows Bellamy’s claim of manufactured evidence to withstand summary judgment. However, it cannot be that a viable claim of fabricated evidence can be premised on nothing more than a defendant’s denial of a statement attributed to him by the police. The district court’s grant of summary judgment relied in part on Jeffreys v. City of New York, 426 F.3d 549, 551, 555 (2d Cir. 2005), which deemed insufficient an allegation of police misconduct that is unsubstantiated and inconsistent. The majority opinion distinguishes Jeffreys on the ground that Bellamy’s explanation is “consistent and uncomplicated.” Op. at 37. However, as in Jeffreys, Bellamy’s claim is unsubstantiated and inconsistent. There is less here by way of substantiation than there was in Jeffreys, in which the claim of excessive force was supported by affidavits from multiple family members, and by inferences drawn from medical records and police reports. Bellamy relies on his bald assertion. However, “[t]he non moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful.” D’Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). 1 Moreover, Bellamy’s account of his interactions with the police is inconsistent in critical respects. He first denied that Det. Gillen read him Miranda warnings, App’x 2392, before admitting that his statements followed a reading of his rights, App’x 1355 56; and he denied telling Det. Gillen that he went to the C Town the morning of the murder, App’x 2396, before admitting that too, App’x 1357. The majority opinion, which does not take account of these contradictions, deems Bellamy’s denial “uncomplicated.” Op. at 37. But it is neither complicated nor surprising that one would regret and deny an inculpatory remark. The majority argues that there is evidence “tending to support an inference of fabrication” because the statement did not appear in the Form DD 5 prepared by Det. Gillen. Op. at 37. But a “lack of corroboration,” Op. at 39, does not amount to evidence in support. The majority opinion notes that no other police witness supported Det. Gillen s testimony. Then again, Bellamy did not ask when he had the chance. Det. Gillen’s statement is corroborated by the notes he made in the police car while taking Bellamy to the police station, and on arrival there. App’x 290, 2143. Det. Gillen informed prosecutors about the “murder” statement the day it was made, Trial Tr. 539 40; and prosecutors disclosed it to Bellamy’s counsel in two notices within two weeks, see App’x 1610. And Det. Gillen testified consistently about the statement at the suppression hearing and at the trial, where he faced cross examination on that issue. Walker Interview Form DD 5. The majority opinion entertains the claim that the Form DD 5 memorializing Veronica Walker’s interview was fabricated. However, Bellamy’s claim fails as a matter of law because the DD 5 had no impact on the evidentiary record before the jury. DuFort v. City of New York, 874 F.3d 338, 355 (2d Cir. 2017). It had no impact on the evidentiary record because it did not come into evidence. “The manufacture of false evidence in and of itself, . . . does not impair anyone’s liberty, and therefore does not impair anyone’s constitutional right.” Zharey v. Coffey, 221 F.3d 342, 358 (2d Cir. 2000) (internal quotation marks omitted). “Mere attempts to withhold or falsify evidence cannot form the basis for a § 1983 claim for a violation of the right to due process when those attempts have no impact on the conduct of a criminal trial.” DuFort, 874 F.3d at 355. 2 As the majority opinion concedes, an attempt to distort the evidentiary record is irrelevant if the “jury is presented with the full universe of information, despite any earlier police misconduct”; but the majority opinion nevertheless conceives an exception for evidence that was somehow “materially relied upon” even if it was never in evidence. Op. at 43. The DD 5, which recounts Walker’s identification of Bellamy, was not offered in evidence evidently because she refused to sign it. The prosecution nevertheless asked Walker whether she identified Bellamy to the police. But the prosecution’s (ill considered) question elicited a devastating reply: “No. . . . I said that it could have been him. It could have.” Trial Tr. 1005. Any impression conveyed by asking the question was thus immediately undone “in a straightforward manner.” See DuFort, 874 F.3d at 355. Furthermore, the court instructed the jury that counsel’s questions were not evidence. See, e.g., Trial Tr. 432, 827, 1140. Therefore, “[a]ny attempt to distort the evidentiary record was fully mitigated” by Walker’s testimony. See DuFort, 874 F.3d at 355. For ballast, the majority opinion relies on a police merit award that the prosecutor presented to the detectives, praising their initiative in preparing a detailed report of Walker’s interview. Op. at 45. But the citation does not say that the substance of Walker’s identification was conveyed to the jury and it wouldn t matter if it did. It goes without saying that the award was not offered in evidence. The use of a police merit award in the majority opinion plows new ground that is better left unturned. II The majority opinion vacates the district court’s grant of summary judgment dismissing three claims alleging Brady violations. Sanchez’s Beer Statement. Sanchez testified that she saw Bellamy follow the victim out of C Town on the Saturday that the murder was committed. A decade later, she recalled that Bellamy was prevented from buying beer. Since beer can be sold all day on Saturdays but cannot be sold (until noon) on Sundays, Bellamy draws the inference that the witness was testifying about some day other than the day of the crime. Bellamy’s Brady claim is that the beer issue is thus exculpatory, that Sanchez conveyed that information to Det. Gillen, and that Gillen withheld that information from the prosecutor. 3 However, none of this matters for Brady purposes unless Sanchez told Det. Gillen that Bellamy was unable to buy beer, and told him so at a point in time when he could have conveyed it to the prosecution before trial. It was no until discovery in this case that Sanchez briefly acceded to a suggestion by Bellamy’s counsel that she told the detective “at some point.” App’x 1499. That assent was elicited after experienced counsel used all his efforts to outwit a witness who bags groceries. And even so, he failed: the vague and unhelpful concession came after and was followed by repeated denials.1 App’x 1495 1500. Bellamy offers no evidence that the Det. Gillen had evidence in 1994 or 1995 that Sanchez saw Bellamy follow the victim on a Sunday. The majority posits that the trial outcome would have been different “[h]ad defense counsel been able to impeach Sanchez with” the inconsistency that (i) she saw Bellamy in C Town on a day on which he could not buy beer, and (ii) that day was a Saturday. Op. at 52. But to the extent Sanchez was confused on this point, her confusion was evident at trial, and available for exploitation by the defense. She testified that she noticed Bellamy because “[h]e was buying beer on a Sunday on a Saturday that day.” Trial Tr. 642. Moreover, the prosecution told the jury that Sanchez gave contradictory testimony, Trial Tr. 1138. If (as the majority opinion has it) Sanchez’s imperfect memory “would have been of great value to the defense,” Op. at 52, it is odd that defense counsel did not ask her a single question about the blue laws in Queens. In any event, the issue is not difficult. Sanchez saw Bellamy buying beer in C Town almost everyday. Trial Tr. 642, 676. No one should be surprised if a convenience store prevents somebody from buying more beer on any day of the week. And Bellamy was not abstemious: he was drinking a 40 ounce container of beer when he was arrested two weeks later. Sanchez’s Identification of Lee. Following Sanchez’s identification of Bellamy, the police showed her a picture of Terrill Lee, whom she said was accompanying Bellamy on the day of the murder. Bellamy conceded that he was “Q. And you told [Det. Gillen] [Bellamy] was trying to buy beer on a day he couldn’t buy beer? A. I can’t remember that part. . . . Q. So you may not remember exactly when but at some point you told them about [sic] he was trying to buy beer and he couldn’t buy beer? A. Correct, yes. . . . Q. Which day, you don’t remember which day? A. I can’t remember if I said that. I can’t remember if I said that what day was the 22nd or I can’t.” Appx 1495 1500. 1 4 with Lee, but only later in the day. But Lee’s wife told the police that Lee was with her that day and not with Bellamy at all. The detectives inferred that if Lee was not there, Sanchez must have seen the two of them together on some other day, so the police did not investigate the matter further. Bellamy’s Brady claim is that the police failed to tell the prosecution that they dropped Lee from their investigation. The majority opinion characterizes this Brady claim as “close,” which is generous. As the district court explained, it is hard to see how this evidence would have helped Bellamy: a decision by the police not to investigate whether Lee was there does not constitute evidence that he wasn’t, let alone that Bellamy was elsewhere as well. Anyway, Lee’s presence was not an issue at the trial. By then, Bellamy had changed his alibi: he was with his father. More fundamentally, there was no suppression of the evidence bearing upon this claim, and therefore there could not have been a Brady violation. “Evidence is not ‘suppressed’ [for Brady purposes] if the defendant either knew or should have known of the essential facts permitting him to take advantage of any exculpatory evidence.” United States v. LeRoy, 687 F.2d 610, 618 (2d Cir. 1982) (internal citations omitted). “The government is not required to make a witness’ statement known to a defendant who is on notice of the essential facts which would enable him to call the witness and thus take advantage of any exculpatory testimony that [s]he might furnish.” United States v. Stewart, 513 F.2d 957, 960 (2d Cir. 1975). The defense was on notice of all the facts. Bellamy knew, well in advance of trial, that Sanchez was a witness to the events that took place in C Town the morning of the murder. He knew that she claimed to have seen him with another male. And he knew (according to his own statements) that he had been with Lee that day. Accordingly, Bellamy was “on notice of the essential facts” that enabled him to ask Sanchez whether she had seen him with Lee. The majority opinion suggests that the exculpatory value of the decision not to investigate about Lee would have been to impeach Sanchez. But if the identification was to be used only to show Sanchez was unreliable, this method would have been complicated and unconvincing and it would only have emphasized that Bellamy switched alibis. 5 The Walker Form DD 5. Veronica Walker refused to sign the DD 5 prepared after her interview, and made statements that Bellamy was not the person she saw at the time of the crime. Bellamy alleges that the police failed to tell that to the prosecution. While this information (if true) should have been conveyed, this claim has been forfeited. See Patterson v. Balsamico, 440 F.3d 104, 112 (2d Cir. 2006) (deeming a forfeited civil claim “abandoned” and declining to consider it). It was pleaded as a Brady claim in the complaint; the defendants moved to dismiss as immaterial all Brady claims premised on Walker’s testimony, App’x 737; Bellamy’s response did not mention this claim; the district court did not mention it either; and there was no motion to reconsider. Bellamy cannot now press the point on appeal. III The majority opinion vacates the district court’s grant of summary judgment dismissing two Monell claims against the City of New York. Benefits Promised to Sanchez. The defense argued to the jury that Sanchez’s testimony should be discounted as induced by bribes, because Sanchez was receiving $25 a week from the government, along with certain other benefits. The majority opinion points out, however, that the defense was not told the total dollar figure. Op. at 74. This is presented as a Monell claim because it was or is the practice not to tell the prosecutor the full scope of such assistance. This claim fails for several reasons. The prosecution disclosed all the evidence required; and Bellamy was on notice of facts permitting him to elicit any additional evidence from the witness. See LeRoy, 687 F.2d at 618. The prosecution disclosed to the defense that that she had been placed in witness protection; that she had been given $25 per day ever since; that she would continue to receive subsidies (for an unspecified time); that she had been temporarily relocated by the government; and that the government was proceeding with permanent relocation. And since it was further disclosed that she was unmarried, unemployed, and supporting herself (and her little twins) on public assistance, the inference was clear that the government was paying for all this. The majority cites no case suggesting that additional disclosures were required. 6 Moreover, the jury knew that Sanchez was receiving benefits, and that she was being permanently relocated. On that basis, the cash total ($2,800) was not material to the defense. See United States v. Brown, 582 F.2d 197, 200 01 (2d Cir. 1978) (no prejudice where non disclosure had no effect on the defense’s theory of the case). In any event, it would have done the defense no good to bring out the full amount and thereby risk that the prosecution would refute an imputation of bribery by explaining that Sanchez was being supported because she was in the witness protection program. Any juror would infer from that that Bellamy was dangerous. The evidence that Bellamy claims would be exculpatory would therefore have operated as a boomerang. If defense counsel had used the information the Bellamy claims he needed, Bellamy might have ended up with a valid claim of ineffective counsel. The State’s Summation. I agree with the majority opinion that (contrary to the district court’s ruling) the City can be held responsible for the failure by a district attorney to train staff to avoid improprieties in summation. However, since discovery was stayed as to the existence and sufficiency of the City’s training, the only question now is whether the improper summation resulted in “substantial prejudice.” United States v. Certified Envtl. Servs., Inc., 753 F.3d 72, 95 (2d Cir. 2014). That turns on: (i) the severity of the misconduct; (ii) the value of any curative instruction; and (iii) the weight of the evidence. Id. I will take them one by one. (i) Bellamy identifies remarks that are, as the majority opinion recognizes, troubling. Op. at 76 78. But (ii) as the majority opinion observes, “Bellamy’s defense counsel did not object to them nor subsequently seek a curative instruction.” Op. at 79. Nor did Bellamy raise this summation misconduct on direct appeal or as part of his habeas corpus petition. It is therefore implausible that the absence of a curative instruction was consequential. Op. at 80; see United States v. Melendez, 57 F.3d 238, 242 (2d Cir. 1995). So the majority opinion concludes, and I agree, that the “the determinative factor” is the weight of the evidence. Op. at 81. (iii) Bellamy undertakes “a heavy burden” of establishing misconduct “so severe and significant as to result in the denial” of due process. United States v. Locascio, 6 F.3d 924, 945 (2d Cir. 1993). “[W]here the jury’s verdict finds substantial support in the evidence, counsel’s improper statements will 7 frequently be de minimis in the context of the entire trial.” Marcic v. Reinauer Transp. Cos., 397 F.3d 120, 124 (2d Cir. 2005). The majority opinion asserts that Bellamy’s trial “existed at the cusp of reasonable doubt.” Op. at 81. However, the evidence easily supported conviction. Bellamy admitted that he had known the victim for years and had been in the C Town the morning of the murder. Sanchez (who recognized Bellamy as a regular customer) testified that she saw him follow the victim out of the C Town the morning of the murder. That testimony placed Bellamy and the victim together at the very time and place that another witness (Carter) watched from a few feet away as Bellamy stabbed the victim. And Sanchez testified that Bellamy later returned to the C Town to threaten her into silence. Bellamy’s conviction was not attributable to improper remarks on summation. 8
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