Drumgold v. Callahan , 707 F.3d 28 ( 2013 )

United States Court of Appeals
For the First Circuit
Nos. 11-1304, 11-2016, 12-1052
SHAWN DRUMGOLD,
Plaintiff, Appellee,
v.
TIMOTHY CALLAHAN,
Defendant, Appellant,
FRANCIS M. ROACHE; PAUL MURPHY;
PATRICIA A. MURPHY, as Executrix of the Estate of Paul Murphy;
RICHARD WALSH; CITY OF BOSTON,
Defendants.
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Nancy Gertner, U.S. District Judge]
Before
Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.
Joseph L. Tehan, Jr., with whom Jackie Cowin, Gregg J. Corbo,
and Janelle M. Austin were on brief, for appellant.
Michael W. Reilly, with whom Rosemary Curran Scapicchio was on
brief, for appellee.
January 31, 2013
LIPEZ, Circuit Judge. In the summer of 1988,
twelve-year-old Darlene Tiffany Moore was killed by a stray bullet
during a gang-related shooting in Boston. Appellant Shawn Drumgold
was tried and convicted of Moore's murder in Massachusetts state
court in the fall of 1989. After serving fourteen years of his
life sentence, Drumgold moved for a new trial on the ground that
exculpatory evidence had been withheld by several Boston police
officers involved in his prosecution, including appellee Timothy
Callahan, a homicide detective. Drumgold's motion was granted, the
district attorney's office declined to prosecute him again, and he
was released from prison in 2003.
Shortly after his release, Drumgold filed a civil action
in federal district court pursuant to 42 U.S.C. § 1983 against
Callahan, Boston police commissioner Francis Roache, police
officers Paul Murphy and Richard Walsh, and the City of Boston.
Drumgold alleged that his constitutional due process rights were
violated by the withholding of material exculpatory evidence during
his criminal trial, in contravention of Brady v. Maryland, 373 U.S.
83 (1963). In 2008, a jury determined that Callahan had withheld
some evidence but deadlocked on whether his failure to disclose
that evidence had caused Drumgold's conviction.1 As a result, a
1
Drumgold's claims against Murphy were dismissed prior to
trial. The claims against Roache and the City of Boston remain
pending in the district court. The claims against Walsh went to
trial together with those against Callahan, but the jury found that
Walsh was not liable. Only Drumgold's claims against Callahan are
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mistrial was declared and a retrial held in 2009. The retrial jury
also found that Callahan had withheld evidence and determined that
his actions had caused Drumgold's conviction. Drumgold was awarded
damages of $14 million -- $1 million for each year he spent in
prison.
On appeal, Callahan argues that he is entitled to
judgment as a matter of law on three different grounds, namely,
that the withheld evidence is not material within the meaning of
Brady, that he is entitled to qualified immunity for his actions,
and that the scope of the retrial was too broad. After careful
consideration, we reject these arguments. However, we agree with
Callahan's alternative claim that he is entitled to a new trial
because the district court judge erred in instructing the retrial
jury on causation. Accordingly, we remand this case to the
district court for a new trial.
I.
A. The 1989 Criminal Trial
On August 19, 1988, Moore was shot and killed by two
masked men while sitting on a mailbox in front of her mother's home
in Boston. Ten days later, city police officers arrested Drumgold
and his friend Terrance Taylor. They were charged with
first-degree murder and brought to trial in Massachusetts state
court in the fall of 1989. Phil Beauchesne, an assistant district
relevant for the purposes of this appeal.
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attorney, led their prosecution. The prosecution's theory of the
case, laid out in Beauchesne's opening statement, was that the
bullet that killed Moore was intended for Chris Chaney, a gang
member who was standing nearby. Chaney was thought to be
responsible, along with a man named Mervin Reese, for the shooting
of Romero Holliday, a rival gang member whom the prosecution
believed to be an associate of Drumgold's.
At trial, Beauchesne called a series of witnesses who
tied Drumgold, and in some instances Taylor, to Moore's murder.
One of these witnesses (and the focus of this appeal) was Ricky
Evans.2 Evans testified that he saw Drumgold and Taylor carrying
guns shortly before Moore was killed, about two blocks from the
murder scene. According to Evans, Taylor told Drumgold at that
time that he knew where they could find Chaney and Reese,
Holliday's supposed assailants. The next time Evans encountered
Drumgold and Taylor, approximately an hour after the shooting, they
were no longer armed and Drumgold appeared nervous. Evans heard
Taylor say that their guns were "hot" and had been "stashed" in a
safe location.
Evans was impeached with his past criminal activity and
other bad acts, as well as with evidence that police officers
investigating Moore's murder helped him clear up some outstanding
2
We summarize the testimony of other prosecution witnesses
below.
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warrants. Taylor's counsel also noted that it took Evans ten
months to come forward with information regarding Moore's death and
probed his motivation for testifying. Evans explained that he
"didn't want to get involved" at first but later changed his mind:
"I just felt like [Moore's mother] lost her daughter so why not go
and tell the truth when you can. . . . I got a daughter myself and
I wouldn't want her to be sitting on the mailbox and get shot."
After the prosecution rested, the state court dismissed
the charges against Taylor, finding insufficient evidence to permit
a reasonable jury to convict him. Drumgold then testified in his
own defense, denying any part in Moore's death. Drumgold offered
an alibi, corroborated by his friend Paul Durand as well as by
Taylor, that he was drinking wine coolers with Durand outside
Taylor's girlfriend's house at the time of the shooting and only
later ended up near the murder scene, which was half a block from
where his girlfriend and daughter lived. Drumgold also presented
third-party culprit evidence suggesting that Moore was killed by
two prominent members of Holliday's gang, Theron Davis and London
Williams, in a failed attempt to take revenge on Chaney for the
attack on Holliday, as well as for an incident in which Chaney
stabbed Davis in the hand a month before Moore's death. There was
a stipulation at trial that, on the day of Moore's murder, a car
dealership loaned Williams a white Suzuki jeep -- the exact type of
vehicle that witnesses said the shooters were driving. One witness
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testified that Davis and Williams drove past Chaney in the same
type of vehicle half an hour before Moore was shot, calling out
from the car, "we'll be back." A few hours later, Davis was
stopped in a white Suzuki jeep by a Boston police officer.
Once Drumgold concluded his defense, the charges against
him went to the jury, which returned a guilty verdict on October
13, 1989, after deliberating less than one full day. Drumgold was
sentenced to life in prison.
B. The 2008 Civil Trial
In 2003, fourteen years after his conviction, Drumgold
moved for a new trial in Massachusetts state court on the basis
that exculpatory evidence casting doubt on the testimony of several
prosecution witnesses was not disclosed to him during his 1989
criminal trial. Drumgold's motion was granted, and he was released
from prison after the district attorney's office entered a nolle
prosequi, indicating that it was abandoning his prosecution.
Drumgold then filed a civil suit in federal district court under 42
U.S.C. § 1983, alleging, as relevant to this appeal, that Callahan
violated his constitutional due process rights by withholding
evidence that would have discredited Ricky Evans.3 Drumgold's
civil claims against Callahan went to trial in the spring of 2008.
3
Drumgold also alleged that Callahan withheld evidence
regarding two other prosecution witnesses, Mary Alexander and Tracy
Peaks. Those allegations were rejected by the jury in the 2008
civil trial and are not pertinent to this appeal.
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At the civil trial, Evans testified on Drumgold's behalf
that he had perjured himself during the 1989 criminal trial in
order to please Callahan.4 Evans explained that he first met
Callahan in December 1988, when Callahan was investigating the
execution-style murder of Evans's cousin by a person named Treas
Carter ("the Treas Carter case"). By the time Callahan was
assigned to Drumgold's case, about six months later, the two men
had become "close like friends." Evans had also learned that he
could profit by aiding Callahan's investigations: "[I]t was like if
I told him what he wanted to hear, I could get what I wanted, and
I started getting what I wanted so I started giving him what he
wanted to hear."
During one conversation about the Treas Carter case,
Callahan asked Evans if he had any information regarding Moore's
death. When Evans indicated that he did, Callahan produced a
picture of Drumgold and said, "[t]his is the guy here." According
to Evans, there was no convincing Callahan that Drumgold was not
the culprit:
I knew it wasn't Shawn that had did the
shooting that night, you know, because
everybody in the neighborhood said it was
[Theron Davis]. But it was like [Callahan]
wouldn't take, you know, "no" for an answer
that it was not Shawn. You know, he wouldn't
take it. Like, after, you know, when I tell
4
There is no indication in the record that Evans was ever
criminally charged with perjury.
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him [Davis] did it, it was like I was just
pointing at a blank picture.
Some time after this initial discussion -- Evans could
not remember exactly when, except that it was on "a summer night"
in 1989 -- Callahan arranged for Evans, who was homeless, to stay
at a Howard Johnson hotel in Boston. Evans claimed that, during
the lead-up to Drumgold's criminal trial, he and Callahan met on
several occasions at the hotel restaurant, where Callahan prepared
him to testify for the prosecution by feeding him facts that
implicated Drumgold in the shooting. In the eight months that
Evans recalled boarding at the hotel, he never paid a bill, he was
permitted to come and go as he liked, and he was able to charge
meals at the hotel restaurant to his room. No one monitored his
visitors or kept track of his whereabouts. In addition, Evans
testified that, while he was at the hotel, Callahan provided him
with money upon request: "If I needed, like, say if I needed money
or something, I would just give him a call, I'd call him, and, you
know, he'd like, drop me off $30, $40, $50."
These benefits were of great value to Evans in his
impoverished state:
I was living in a hotel I could bring anybody
that I wanted to, I mean, I could feed them,
my whole family. It was a big deal to me. I
was moved off the street into a hotel. I
didn't have to worry about nothing. I needed
money, I gave them a call . . . . I didn't
have anything to worry about, take me off the
street and put me in like a five star. See, I
was wearing the same clothes every day that
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week, then I get Detective Callahan . . . I
didn't have to worry about it no more, so I
told them what they wanted to hear.
None of these benefits were disclosed to Drumgold prior to or
during his criminal trial.
Callahan disputed the main thrust of Evans's testimony.
He denied feeding Evans any information about Moore's murder or
inducing Evans to testify in any particular fashion during the 1989
criminal trial. Callahan testified that he placed Evans in the
hotel only a few weeks before the criminal trial -- on September
12, 1989 -- and that he did so out of concern for Evans's safety as
a cooperating witness in Drumgold's case, as well as in the Treas
Carter case. He also said that he only gave Evans money ($20) on
one occasion, because Evans was hungry and had no means to purchase
food. Callahan acknowledged that there was no contemporaneous
written documentation of either benefit, although he was "sure" he
reported to Beauchesne that he had "placed [Evans] in a hotel." He
also recalled disclosing Evans's accommodations to the prosecutor
assigned to the Treas Carter case, Paul Connolly, who worked down
the hall from Beauchesne. A January 1990 memorandum to a witness
advocate from Connolly stated: "[Y]ou will remember that our
witness Ricky Evans was in need of housing" and "we had in effect
relocated him to a hotel." However, neither Beauchesne nor
Connolly had any memory of discussing Evans's hotel accommodations
with Callahan.
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To help the jury understand the role Evans played in the
1989 criminal trial, transcripts of that proceeding were read aloud
during the 2008 civil trial and admitted into evidence as exhibits.
Against this backdrop, the district judge sent the case to the jury
in two phases. In the first phase, the jury was directed to
complete a special verdict form that, in pertinent part, included
the following two questions:
(1) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan violated his right
to a fair trial by withholding exculpatory
evidence from prosecutors, manufacturing
evidence, and/or obtaining false statements
regarding Ricky Evans being housed at a hotel
and provided with meals?
(2) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan violated his right
to a fair trial by withholding exculpatory
evidence from prosecutors, manufacturing
evidence, and/or obtaining false statements
regarding Ricky Evans being given substantial
amounts of money?
The jury answered "no" to the first question and "yes" to the
second. Apprehending the inherent ambiguity in the phrase
"substantial amounts of money," the district judge proposed to ask
the jury to clarify its response to the second question. When both
parties objected, the judge did not seek the clarification.
Proceeding to the second phase, the judge instructed the
jury to consider whether Callahan's withholding of evidence
concerning the provision of money to Evans had caused Drumgold's
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conviction and, if so, the amount of damages due to Drumgold. The
parties presented additional evidence and delivered closing
arguments as to causation and damages. After a week of
deliberations, the jury reported that it could not agree on the
causation question, and the judge declared a mistrial.
Immediately following the declaration of a mistrial,
Callahan requested the entry of a final judgment on all issues
decided by the jury in his favor. The judge said that Callahan's
request seemed appropriate:
Entry of judgment would make sense with
respect to . . . the issues that were finally
decided by the jury on Officer Callahan. . . .
In other words, when the jury said no
liability for Officer Callahan with respect to
. . . all aspects of Ricky Evans except for
the money, that judgment it seems to me, can
enter.
She then addressed the scope of a possible retrial:
If there would be a retrial . . . I'm not sure
that it would be possible to separate out as a
matter of fact the issues about the hotel, et
cetera, from the issues of money so that a
retrial on Officer Callahan I think would
cover the entire story, but the only question
that that jury would be asked is about the
money.
The judge elaborated:
[E]ven the finding of liability for Officer
Callahan on the money would . . . be up in the
air because the jury -- that wasn't a complete
verdict, there had to have been a verdict of
that finding plus proximate cause, so that's
not a complete verdict, and judgment should
not be entered one way or the other with
respect to that.
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However, when it later became clear that a retrial would
take place, the judge declined to enter judgment in Callahan's
favor on any issues relating to Evans that were decided in the 2008
trial. She ruled that the retrial would not be limited to the
causation question on which the first jury hung, but also would
revisit the antecedent question of whether Callahan withheld
evidence that he gave Evans money, as well as the question of
whether he withheld evidence that he housed Evans at a hotel.
C. The 2009 Retrial
The retrial was held in September 2009. Much of the
evidence mirrored the evidence in the 2008 civil trial, including
transcripts from the 1989 criminal trial. Evans repeated his prior
testimony that he perjured himself during the criminal trial in
order to curry favor with Callahan, that Callahan fed him
information implicating Drumgold in Moore's murder, and that
Callahan housed him for eight months at a Howard Johnson hotel and
gave him money "whenever [he] needed it." Evans also testified
that he informed Callahan that "everybody in the neighborhood"
believed Theron Davis had killed Moore, but Callahan was "possessed
with Shawn Drumgold": "[T]he only person that he wanted to hear
about was Mr. Drumgold. He didn't want . . . to hear anything
about [Davis], he wanted to finger Shawn."
Callahan again denied having fed Evans any information or
provided any inducements to him. He testified that he placed Evans
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in the hotel only a few weeks before the criminal trial and that he
did so in order to "guarantee not only his safety but his
attendance before the court." Callahan also testified that he
disclosed Evans's accommodations to Beauchesne and to Connolly,
although he did not document that benefit in a written report. He
added that the only occasion on which he gave Evans money (again,
$20) was when he first took Evans to the hotel, because Evans had
not eaten that day. The attorney who had represented Drumgold at
his criminal trial testified that, even if he had known Callahan
gave Evans $20 for food, "that . . . probably would not have been
an area that [he] would have gone into" in cross-examining Evans.
The judge again sent the case to the jury in two phases.
The special verdict form used in the first phase included the
following questions:
(1) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan intentionally or
recklessly withheld exculpatory evidence from
prosecutors regarding Ricky Evans being housed
at a hotel and provided with meals?
(2) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan intentionally or
recklessly withheld exculpatory evidence from
prosecutors regarding money given to Ricky
Evans?
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The jury answered "yes" to both questions.5 As a follow-up to the
second question, the special verdict form directed the jury to
determine the amount of money Callahan gave Evans. The two choices
were "$20" and "more than $20." The jury marked "$20." The
special verdict form then put these questions to the jury:
(3) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that the
evidence withheld by Defendant Callahan was
material?
(4) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that the
evidence withheld by Defendant Callahan was a
legal cause of Mr. Drumgold's conviction?
The jury answered "yes" to both questions, finding Callahan to be
liable. That finding concluded the first phase of the retrial. In
the second phase, the jury awarded Drumgold $14 million in damages.
This appeal followed. Because there was no "final
decision" that could be appealed after the 2008 trial, 28 U.S.C.
§ 1291; see also Baetjer v. Garzot Fernandez, 329 F.2d 798, 799
(1st Cir. 1964) (per curiam), we discuss Callahan's claim that
there never should have been a 2009 retrial, as well as his claims
relating to the 2009 retrial.
II.
We first address the three issues that Callahan claims
would entitle him to judgment as a matter of law. After rejecting
5
The jury was also asked whether Drumgold had proven that
Callahan intentionally or recklessly obtained false statements or
manufactured evidence. The jury answered "no" to that question.
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Callahan's arguments on these issues, we proceed to his alternative
assertion that he is entitled to a new trial because the causation
instruction given to the retrial jury was erroneous. Since we
agree with Callahan on that claim, we do not consider his other
arguments for a new trial or further proceedings.6
A. The Materiality of the Withheld Evidence
Callahan argues that none of the evidence he was found to
have withheld during Drumgold's criminal trial is material within
the meaning of Brady. We provide an overview of Brady before
turning to the merits of this issue.
1. Brady
Brady was an "extension" of a line of cases beginning
with Mooney v. Holohan, 294 U.S. 103 (1935), and Pyle v. Kansas,
317 U.S. 213 (1942), in which the Supreme Court held that a state
actor violates a criminal defendant's due process rights by the
knowing use of perjured testimony or the deliberate suppression of
evidence leading to the defendant's conviction. 373 U.S. at 86;
see also Kyles v. Whitely, 514 U.S. 419, 432 (1995) (noting that
Brady "can trace its origins to early 20th-century strictures
against misrepresentation"). The duty that these cases established
6
Callahan's other arguments are that the judge erred in
excluding from the 2009 retrial a package of forty-five
investigative reports, instructing the retrial jury on the extent
of damages for which he could be held liable, failing to remit a
portion of the damages award, and awarding excessive attorneys'
fees.
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has always applied equally to prosecutors and law enforcement
officers. See Haley v. City of Boston, 657 F.3d 39, 50 (1st Cir.
2011); Limone v. Condon, 372 F.3d 39, 47 (1st Cir. 2004).
Brady broke new ground in holding that a prosecutor also
violates a defendant's due process rights merely by failing to
disclose material evidence in his possession that is favorable to
the defendant, irrespective of the good or bad faith of the
prosecutor. See 373 U.S. at 87. As a result, Brady is "sometimes
referred to as imposing a no-fault disclosure obligation" on
prosecutors. Haley, 657 F.3d at 48; see also Porter v. White, 483
F.3d 1294, 1305 (11th Cir. 2007) ("The Brady rule . . . imposes a
no-fault standard of care on the prosecutor."). Subsequent to
Brady, the Supreme Court clarified that this affirmative disclosure
obligation also encompasses evidence known only to law enforcement
officers and not to prosecutors. See Kyles, 514 U.S. at 437-38;
see also Strickler v. Greene, 527 U.S. 263, 280-81 (1999); Haley,
657 F.3d at 49. Although "the responsibility for obtaining and
disclosing . . . evidence remains the duty of the prosecutor,"
Haley, 657 F.3d at 49, law enforcement officers have a correlative
duty to turn over to the prosecutor any material evidence that is
favorable to a defendant, see Moldowan v. City of Warren, 578 F.3d
351, 381 (6th Cir. 2009); McMillian v. Johnson, 88 F.3d 1554, 1567
(11th Cir. 1996). Evidence is favorable to a defendant if it is
either exculpatory or impeaching in nature. See United States v.
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Bagley, 473 U.S. 667, 676 (1985). Evidence is material if there is
a "reasonable probability" that, had it been disclosed, the result
of the proceeding would have been different. Id. at 682.7 "The
question is not whether the defendant would more likely than not
have received a different verdict with the evidence, but whether in
its absence he received a fair trial, understood as a trial
resulting in a verdict worthy of confidence." Kyles, 514 U.S. at
434. Thus, a reasonable probability exists when the withholding of
evidence undermines confidence in the outcome of the trial. See
id.; Bagley, 473 U.S. at 682.
We have been careful to distinguish between the
proscription originating in Mooney and Pyle against the deliberate
suppression of evidence and the more recent affirmative disclosure
obligation announced in Brady. See Haley, 657 F.3d at 46. The
allegations in this case primarily go to deliberate suppression.
However, the record does not permit us to exclude the possibility
that Callahan merely failed to disclose evidence with a less
culpable state of mind, particularly in light of the retrial jury's
7
"Significant possibility" might be a better term than
"reasonable probability" because the latter term "raises an
unjustifiable risk of misleading courts into treating it as akin to
the more demanding standard, 'more likely than not.'" Strickler,
527 U.S. at 298 (Souter, J., concurring in part and dissenting in
part). Nevertheless, "reasonable probability" remains the proper
formulation.
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finding that he acted "intentionally or recklessly."8 We therefore
construe Drumgold's invocation of Brady as shorthand for his full
complement of due process rights, including both those articulated
in Mooney and Pyle and those first described in Brady itself. See
Strickler, 527 U.S. at 281-82 (explaining that "a true Brady
violation" involves evidence that was "suppressed by the State,
either willfully or inadvertently").
2. Analysis
With this framework in mind, we focus on the merits of
the materiality issue, beginning with the 2008 civil trial and then
moving to the 2009 retrial. There are serious questions as to
whether Callahan properly preserved this issue for our review in
either proceeding. If the issue was preserved, our review is de
novo. See Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004). If not,
our review is for plain error. See Simon v. Navon, 71 F.3d 9, 13
(1st Cir. 1995). However, since Callahan's challenge fails even if
we apply the standard of review most favorable to him, we will
assume the issue is preserved and review de novo whether he is
entitled to judgment as a matter of law. See Zachar, 363 F.3d at
73. "In undertaking this review, we look to all evidence in the
8
The district judge at one point instructed the retrial jury
that it could hold Callahan liable only if it found that he
"knowingly and deliberately" withheld evidence, but she also
repeatedly explained that Drumgold had to prove that Callahan acted
"intentionally or recklessly," and the special verdict form used in
the retrial reflected that formulation.
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record, drawing all reasonable inferences therefrom in [Drumgold's]
favor, and resist the temptation to weigh the evidence or make our
own credibility determinations." Id. We may rule in Callahan's
favor only if no reasonable person could view the withheld evidence
as material. See id.; Correa v. Hosp. San Francisco, 69 F.3d 1184,
1191 (1st Cir. 1995).
a. The 2008 Trial
To recap, the jury in the 2008 trial found that Callahan
withheld evidence that he provided Evans with "substantial amounts
of money." The question is whether a reasonable jury could view
that evidence as material.
Evans was one of the prosecution's star witnesses during
Drumgold's criminal trial. As described above, he testified that,
shortly before Moore was killed, he saw Drumgold and Taylor
carrying guns near the murder scene. He also testified that Taylor
told Drumgold at that time that he knew where they could find Chris
Chaney and Mervin Reese, whom Beauchesne identified in his opening
statement as the intended targets of Moore's shooting. Finally,
Evans testified that when he next encountered the pair, about an
hour after the shooting, Drumgold appeared anxious and Evans heard
Taylor say that their guns were "hot" and had been "stashed" in a
safe location.
To be sure, other witnesses also linked Drumgold to
Moore's death. Chris Cousins testified that he visited the wounded
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Romero Holliday in the hospital shortly before Moore was killed.
There, Cousins heard Holliday tell Drumgold and Taylor that Chaney
and Reese had shot him, prompting Drumgold and Taylor to assure
Holliday that they were "going to get who did it" in retaliation.
Another witness, Vantrell McPherson, testified that she saw
Drumgold and Taylor two streets away from where Moore was shot
approximately three hours before the shooting, and that Taylor had
said to Drumgold, "[c]ome on, Shawn, you know we got to go do
this," although McPherson had not known what the two men were
talking about.
Two witnesses claimed to have seen Drumgold near the
scene of Moore's shooting shortly after it occurred. Mary
Alexander, who lived a few blocks away, testified that she heard a
gunshot and then saw a man whom she identified in court as Drumgold
climb over a fence behind her house with a gun tucked into his
waistband. Tracy Peaks, a neighbor of Alexander's, testified that
a man she recognized as Drumgold walked casually by her home just
after Moore was killed. A third witness, Eric Johnson -- who had
been leaning on the mailbox where Moore was perched and who "kn[e]w
[Drumgold] from the neighborhood" -- testified that he suspected
one of the masked shooters was Drumgold, largely because one
shooter appeared "bowlegged," as Johnson believed Drumgold to be.
However, the testimony of many of these witnesses was
called into serious doubt. On cross-examination, Drumgold's
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attorney elicited from Alexander the admissions that she had not
initially been able to pick out Drumgold from a photo array after
the shooting and that, before identifying him in court, she had
seen Drumgold's picture in a Boston newspaper alongside an article
describing him as Moore's killer. In addition, Alexander said that
Drumgold appeared to be significantly shorter than the man whom she
saw climb a fence behind her house. Drumgold's attorney also got
Johnson to concede that he was not certain the bowlegged shooter
was Drumgold: "I'm not going to say it was Shawn. . . . I say he
looked similar to Shawn. I can't come out and say straight it was
Shawn. I don't know." Romero Holliday testified that Chris
Cousins never visited him in the hospital, where Cousins claimed to
have overheard Drumgold and Taylor promise to "get" whomever had
shot Holliday. In fact, Holliday claimed that he did not even know
Drumgold at the time of Moore's murder.
Evans's testimony, too, was impeached. There was
evidence at trial of his past criminal activity and other bad acts,
as well as evidence that police officers investigating Moore's
death assisted him with outstanding warrants. Taylor's counsel
also questioned why Evans did not come forward with information
until ten months after the shooting. The existence of this other
impeachment evidence is relevant to the claim here insofar as it
offered a reason to disbelieve Evans even without the withheld
evidence. See United States v. Brandao, 539 F.3d 44, 64 (1st Cir.
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2008); Mastracchio v. Vose, 274 F.3d 590, 603 (1st Cir. 2001).
Still, its impact at trial was countered by Evans's insistence that
his motivation for testifying was sympathy for Moore's mother: "I
just felt like she lost her daughter so why not go and tell the
truth when you can. . . . I got a daughter myself and I wouldn't
want her to be sitting on the mailbox and get shot." Evidence that
Callahan gave Evans "substantial amounts of money" for assisting
with the investigation and prosecution of Drumgold could have put
the lie to that claim.
The record is mixed as to when Evans received the money
in question. By all accounts, it was while he was living at the
Howard Johnson hotel. Evans was unable to recall the exact date
that he moved into the hotel, except that it was on "a summer
night" in 1989. He also could not recollect when he left the
hotel, although it was some time after Drumgold's criminal trial
concluded. In all, Evans estimated that he lived at the hotel for
eight months. According to Callahan, however, Evans arrived at the
hotel only a few weeks before the criminal trial -- on September
12, 1989. This chronology is important because, as Callahan points
out, Evans's criminal trial testimony was consistent with pretrial
statements he made as early as June 21, 1989. If these statements
preceded Evans's receipt of money from Callahan, disclosure of that
benefit might have made a smaller splash at the criminal trial.
See Mastracchio, 274 F.3d at 603-04.
-22-
Although it is hardly conclusive, there was sufficient
evidence in the 2008 trial -- drawing all reasonable inferences
from the record in Drumgold's favor, see Zachar, 363 F.3d at 73 --
that Evans was already living in the Howard Johnson hotel at the
time of his pretrial statements. Drumgold's criminal trial ended
on October 13, 1989. Given Evans's testimony that he departed the
hotel some time afterward, and his estimation that he boarded at
the hotel for eight months in total, he could have arrived there
before June 21, 1989, and so he could have been receiving cash
assistance from Callahan before he gave pretrial statements to him.
This timeline is compatible with Evans's memory of moving into the
hotel on "a summer night."9
As a result, there is a reasonable probability that, if
Callahan's provision of "substantial amounts of money" to Evans had
been disclosed during the 1989 criminal trial, the result of that
proceeding would have been different. This is not to say that
Evans's criminal trial testimony was, on its own, sufficient to
support Drumgold's conviction. After all, his testimony was
equally inculpatory of Taylor, against whom the state court
dismissed all charges. Nevertheless, Evans's testimony was crucial
in connecting the accounts of other prosecution witnesses against
Drumgold, and evidence that he received a significant financial
9
Although the official first day of summer usually falls on
June 21, we understand Evans to mean that he moved into the hotel
on a warm, summer-like evening.
-23-
benefit from Callahan might well have affected the jury's
perception of his credibility.
b. The 2009 Retrial
The foregoing analysis applies equally to the retrial
jury's determination that Callahan withheld evidence that he
provided Evans with free lodging. We have no doubt that a
reasonable jury could view the lodging evidence as material, the
same as evidence that Callahan gave Evans "substantial amounts of
money." Those benefits were a "big deal" to Evans and transformed
his quality of life. There is a reasonable probability that
disclosure of the lodging benefits would have changed the outcome
of Drumgold's criminal trial.
Disclosure of evidence that Callahan gave Evans $20 to
purchase food on one occasion would not have had the same effect,
however. That sum is too small to have made a difference in the
particular circumstances of this case. Indeed, the lawyer who
represented Drumgold during his criminal trial conceded in the 2009
retrial that he would not have cross-examined Evans about a gift of
$20. As a result, no reasonable jury could regard this evidence as
material.
B. Qualified Immunity
Callahan argues that, even if the evidence he withheld
was material, he is entitled to judgment as a matter of law on the
basis of qualified immunity because it was not clearly established
-24-
at the time of Drumgold's criminal trial that he had any
affirmative disclosure obligation under Brady. Again, there are
serious questions about whether Callahan preserved this issue for
our review. However, because Callahan's argument fails in any
event, we will once more assume the issue is preserved and apply a
de novo standard of review. See Walden v. City of Providence, 596
F.3d 38, 52 (1st Cir. 2010); Guillemard-Ginorio v. Contreras-Gómez,
585 F.3d 508, 525-26 (1st Cir. 2009). Throughout, we discuss the
2008 trial and the 2009 retrial together.
1. The Qualified Immunity Doctrine
"Qualified immunity is a judge-made doctrine designed to
'balance two important interests -- the need to hold public
officials accountable when they exercise power irresponsibly and
the need to shield officials from harassment, distraction, and
liability when they perform their duties reasonably.'" Haley, 657
F.3d at 47 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)
(internal brackets omitted)). The doctrine thus protects from
liability for civil damages all public officials other than those
who, "from an objective standpoint, should have known that their
conduct was unlawful." Id. (internal quotation marks omitted); see
also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).
The qualified immunity inquiry has two parts. See
Pearson, 555 U.S. at 232; Maldonado v. Fontanes, 568 F.3d 263, 269
(1st Cir. 2009). A court must decide whether the plaintiff has
-25-
made out a violation of a constitutional right and, if so, whether
the right was clearly established at the time of the violation.
See Maldonado, 568 F.3d at 269. This second part, in turn, has two
aspects. See id. The first focuses on the clarity of the law at
the time of the violation. See id. The other aspect focuses more
concretely on the facts of the particular case and whether a
reasonable defendant would have understood that his conduct
violated the plaintiff's constitutional rights. See id. The
"salient question" is whether the state of the law at the time of
the violation gave the defendant fair warning that his particular
conduct was unconstitutional. Id. (citing Hope v. Pelzer, 536 U.S.
730, 741 (2002)).
2. Application
We have already rejected Callahan's argument that the
exculpatory evidence he withheld is not material within the meaning
of Brady. It follows that Drumgold has made out a violation of his
constitutional due process rights. See Brady, 373 U.S. at 87. The
question we now confront is whether those rights were clearly
established at the time of the 1989 criminal trial.
The essence of Callahan's argument is that the
affirmative disclosure obligation Brady imposed on prosecutors in
1963 was not expanded to include law enforcement officers until
Kyles was decided in 1995. That is true, so far as it goes. See
Haley, 657 F.3d at 48-49. As we have said, though, this case also
-26-
involves the deliberate suppression aspect of Brady. There can be
no doubt that, under the line of cases running from Mooney and Pyle
to Brady, the law was firmly settled at the time of Drumgold's
criminal trial that a law enforcement officer may not deliberately
suppress material evidence that is favorable to a defendant. See
id. at 49-51; Limone, 372 F.3d at 45; Newsome v. McCabe, 256 F.3d
747, 752-53 (7th Cir. 2001); McMillian v. Johnson, 88 F.3d 1554,
1568-69 (11th Cir. 1996).
Moreover, to the extent that Callahan acted deliberately,
a reasonable officer in his position plainly would have appreciated
the wrongfulness of his conduct. Callahan claims that a reasonable
officer would not have recognized the evidence in question as
material because Drumgold's lawyer had not bothered to cross-
examine another prosecution witness, Travis Johnson, on the fact
that the district attorney's office paid for his accommodations
during the criminal trial. However, Johnson had to travel to
Boston from another state to testify, and the benefits he received
were tailored to facilitate his appearance at the trial. By
contrast, viewed in the light most favorable to Drumgold, see
Walden, 596 F.3d at 52, the benefits Evans received had little to
do with ensuring his availability to testify or, for that matter,
his safety as a cooperating witness. Evans was permitted to remain
in the Howard Johnson hotel for eight months, he was free to come
and go as he pleased, and no one monitored his whereabouts. A
-27-
reasonable officer would have discerned the difference between the
open-ended benefits Evans received and the far more limited
benefits Johnson received. As a result, there is no basis for
awarding Callahan judgment as a matter of law on qualified immunity
grounds.10
The dissent's lengthy discussion attempting to show that
Callahan is entitled to qualified immunity is flawed both factually
and legally. As a threshold matter, the dissent argues that
Drumgold never raised a claim related to the hotel evidence under
"the Mooney line of cases" and contends that it is unfair to allow
the belated introduction of such a claim on appeal. Although
Drumgold did not cite Mooney and Pyle by name, the due process
claim those cases support -- that Callahan deliberately withheld
10
We do not mean to suggest that a law enforcement officer can
be liable today in a damages action under 42 U.S.C. § 1983 only for
deliberately suppressing evidence. Non-disclosure with a less
culpable state of mind might suffice. See Haley, 657 F.3d at 47(assuming without deciding that "no-fault nondisclosure constitutes
a viable claim of breach"). This is a difficult question that has
engendered a range of views. See, e.g., Tennison v. City and Cnty.
of San Francisco, 570 F.3d 1079, 1089 (9th Cir. 2009) ("[A] § 1983
plaintiff must show that police officers acted with deliberate
indifference to or reckless disregard for an accused's rights or
for the truth in withholding evidence from prosecutors."); Porter,
483 F.3d at 1306 ("[T]he no-fault standard of care Brady imposes
. . . in the criminal or habeas context has no place in a § 1983
damages action against a law enforcement official in which the
plaintiff alleges a violation of due process."); Villasana v.
Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) ("[T]he recovery of
§ 1983 damages requires proof that a law enforcement officer . . .
intended to deprive the defendant of a fair trial."). We do not
reach this question here. Our holding is limited to the law as it
was clearly established in 1989, when Callahan engaged in the
conduct at issue here.
-28-
material impeachment evidence -- was a central part of the case as
tried. Indeed, in objecting to the district court's proposed jury
instructions for the 2009 trial, Callahan argued that "the jury
should be explicitly informed that it is the intentional
suppression -- that is, the intentional withholding of evidence --
that is the core allegation at issue." He made similar assertions
in his Memorandum of Law in Support of His Requested Jury
Instructions, where he stated, inter alia, that "[t]he jury should
. . . be instructed that the burden remains on Drumgold at all
times to prove intentional and deliberate suppression of evidence
. . . ." The suppressed evidence at issue was the provision of
hotel and cash benefits to Evans, conduct distinct from Drumgold's
allegation that Callahan had framed him by manufacturing evidence
and inducing Evans to testify falsely.
What matters is not the nomenclature of Drumgold's
withholding-of-evidence claim -- whether we characterize it as
"Brady-based" or "Mooney-based" -- but what the parties, the court,
and the jury understood about the nature of the claim. The
instructions offered by Callahan and given by the court both
required a finding of intentional or reckless conduct,11 and the
jury verdict form was likewise framed that way. Hence, there is no
11
Indeed, the court instructed the jury that "[w]ithholding
material exculpatory evidence by accident or mistake does not give
rise to liability under the Federal Civil Rights Act. As I said,
the conduct must be either intentional or reckless."
-29-
lack of notice problem or any other unfairness associated with
Drumgold's deliberate suppression claim.
Moreover, the omission of citations to Pyle and Mooney in
Drumgold's briefing of his Brady claim on appeal does not mean that
he has discarded the claim that Callahan deliberately suppressed
evidence. As we have explained, Drumgold's invocation of Brady can
only reasonably be understood to broadly state the scope of his
constitutional claim against Callahan, not to limit it to the less
egregious failure to disclose. It turns the Brady principle on its
head to say that a constitutional due process claim exists under
Brady if a police officer allegedly failed to fulfill an
affirmative obligation to disclose evidence irrespective of fault,
but not if the officer is alleged to have deliberately suppressed
that same evidence. In arguing that Drumgold's "Brady" claim
covers only the affirmative obligation to disclose evidence -- an
obligation that was not clearly established for police officers at
the time of Callahan's alleged actions -- the dissent slices away
the foundational assumption of Brady that deliberate suppression of
material evidence is a constitutional violation. See Strickler,
527 U.S. at 282 (stating that "a true Brady violation" includes
instances where evidence was willfully suppressed by the state).
The dissent's confinement of Brady to no-fault
nondisclosure claims, while describing a Mooney claim as one of
"intentional framing," implausibly leaves claims asserting a
-30-
deliberate withholding of evidence without a category of
constitutional redress. To the extent the dissent's labeling is
only case specific -- that is, the invocation of Brady in this case
referred only to the affirmative failure to disclose, not the
deliberate suppression of evidence -- the dissent, as noted, is
flatly wrong.
Here, the jury rejected Drumgold's "non-Brady" claim that
Callahan intentionally framed him by obtaining false statements
from Evans or otherwise manufacturing evidence. But it found that
the exculpatory hotel evidence was "intentionally or recklessly
withheld" -- conduct that, if deliberate, was clearly unlawful at
the time Callahan acted. The labeling of this failure-to-disclose
claim as a Brady claim, or something else, makes no difference
where, as a matter of substance, the claim plainly was understood
by the parties, the judge, and the jury to embrace a culpable state
of mind.
The dissent also argues that Callahan would be entitled
to qualified immunity even if the deliberate suppression of
evidence is covered by Drumgold's Brady claim. This assertion,
however, improperly relies on unsupported factual inferences from
the jury's verdict. The dissent states that the jury's findings do
not establish specific intent. We agree -- but that non-finding
-31-
does not earn Callahan immunity even assuming that specific intent
were the only state of mind sufficient to support liability.12
The special verdict form in the 2009 trial asked whether
Callahan "intentionally or recklessly withheld exculpatory
evidence," and the jury answered "yes" without specifying the state
of mind it found. The dissent points out that the jury "made no
express finding that Callahan acted with the purpose of suppressing
such evidence." Yet the jury also made no express finding that he
did not.
Qualified immunity is an affirmative defense. We see no
justification for granting immunity based on the supposition that
the jury found the lesser state of mind, particularly when -- in
Callahan's words -- "intentional withholding of evidence . . .
[was] the core allegation at issue." The dissent points to
12
In his Memorandum of Law in Support of His Request for Jury
Instructions, Callahan stated:
The jury should be instructed that in order to find
against Callahan, they must find that his omission of
material exculpatory evidence must have been essentially
deliberate. Omission of material exculpatory evidence by
accident or mistake or through some ordinary level of
negligence or carelessness does not give rise to
liability under the statute; rather, the omission must
have been either intentional or reckless, which the law
treats as equivalent of intentional.
Memorandum at 8 (emphasis added); see also, e.g., Tennison, 570
F.3d at 1088 (stating that a § 1983 plaintiff alleging a due
process claim against a police officer for withholding evidence
must show "deliberate indifference to or reckless disregard for an
accused's rights or for the truth in withholding evidence from
prosecutors" (emphasis added)).
-32-
testimony that Callahan had told a prosecutor not involved in
Drumgold's case about placing Evans in a hotel and suggests that,
as a result, the jury could not have found intentional suppression.
It is the jury's province, however, to weigh such evidence along
with the other evidence presented at trial concerning Callahan's
state of mind. Because another trial is necessary, as we explain
infra, the jury will again have the opportunity to do so.
C. The Scope of the 2009 Retrial
As noted above, the retrial jury found that Callahan
withheld evidence that he provided Evans with free housing and $20.
We have already explained that evidence of the latter benefit is
not material. Hence, Callahan cannot be liable for withholding
that evidence. Callahan now contends that the retrial jury should
not have been permitted to reexamine the question of whether he
withheld the housing evidence, since that question was resolved in
his favor during the 2008 trial. He claims that there is, thus, no
valid basis for his liability and that he is entitled to judgment
as a matter of law. There is no dispute that this issue was
preserved.
Although much of the relevant background has already been
laid out elsewhere in this opinion, we repeat portions of it here
for clarity's sake. In the 2008 trial, the jury determined that
Callahan had not withheld evidence that he arranged free housing
for Evans, but had withheld evidence that he gave Evans
-33-
"substantial amounts of money." The jury then hung on the question
of whether Callahan's misconduct had caused Drumgold's conviction.
After a mistrial was declared, Callahan moved for the entry of a
final judgment as to, inter alia, the housing issue and
simultaneously sought to restrict the scope of a retrial to the
causation question on which the first jury deadlocked.
The district judge initially appeared receptive to this
idea but ultimately rejected it. She reasoned that a retrial
limited to causation was not feasible:
A second jury would obviously have to be
instructed that Callahan had violated
Drumgold's civil rights by giving him
"substantial amounts of money" and not
disclosing it. The jury would be left with
the ambiguity of what "substantial money"
meant -- an issue wholly unresolved in the
first trial, notwithstanding the Court's
efforts to seek further clarification. And
the only way to resolve that ambiguity would
be to relate each side's evidence concerning
the treatment of Ricky Evans -- why Ricky
Evans's testimony was significant to the
Drumgold prosecution, that there had been no
eyewitnesses to the murder that Drumgold was
convicted of, . . . the relationship between
defendant Callahan and the witness, the steps
that defendant Callahan allegedly took to
secure Evans's testimony (hotel rooms, meals,
cash, etc.). In short, all aspects of Ricky
Evans's portion of this case would be
involved.
As a result, the judge declined to enter a final judgment as to the
housing issue and permitted the retrial jury to determine afresh
what housing and money benefits, if any, Callahan gave Evans and
failed to disclose.
-34-
The general practice after a mistrial is a full retrial
of all issues in the case. See Nissho-Iwai Co. v. Occidental Crude
Sales, 729 F.2d 1530, 1538 (5th Cir. 1984). However, when some
issues have been properly and conclusively resolved, there may be
a partial retrial on the remaining issues if it "clearly appears"
that they are "so distinct and separable from the others that a
trial of [them] alone may be had without injustice." Gasoline
Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931).
This determination is distinctly within the ken of the trial judge.
See Sprague v. Boston & Me. Corp., 769 F.2d 26, 28 (1st Cir. 1985).
Accordingly, our review of the judge's decision as to the scope of
the 2009 retrial is for abuse of discretion. See Winn v. Lafayette
Town House, 839 F.2d 835, 837 (1st Cir. 1988); Sprague, 769 F.2d at
28.
There were three possible ways to define the scope of the
retrial. First, the judge could have confined the retrial to the
causation inquiry that stymied the first jury. We agree with the
judge that this was not a feasible option. The retrial jury could
not have conducted a meaningful causation inquiry without rehearing
the entirety of the 2008 trial evidence involving Evans in order to
understand both the dynamics of his relationship with Callahan and
his role in Drumgold's criminal trial. Having heard that evidence,
the retrial jury inevitably would have drawn its own conclusions as
to the nature and amount of benefits that Callahan gave Evans, and
-35-
would have been confused if prevented from returning a verdict
reflecting those conclusions. While juries are frequently
instructed to consider evidence for one purpose and not others, see
Fed. R. Evid. 105, we share the district judge's concern that such
an instruction would have posed an unacceptably high risk of
confusion in this case, see Colonial Leasing of New England, Inc.
v. Logistics Control Int'l, 770 F.2d 479, 481 (5th Cir. 1985)
("[W]hen the issues subject to retrial are so interwoven with other
issues in the case that they 'cannot be submitted to the jury
independently . . . without confusion and uncertainty, which would
amount to a denial of a fair trial,' then it is proper to grant a
new trial on all of the issues raised." (quoting Gasoline Prods.,
283 U.S. at 500)); Sears v. S. Pac. Co., 313 F.2d 498, 503 (9th
Cir. 1963).
The second route the judge could have taken was to allow
the retrial jury to revisit whether Callahan withheld evidence that
he gave money to Evans but not whether Callahan withheld evidence
regarding the housing benefit. This approach, too, would have
risked confusion since the evidence concerning the various benefits
at issue here overlaps both topically and temporally. Moreover, it
would have been unfair to Drumgold if he had to prove anew in the
retrial that Callahan withheld evidence of a financial benefit to
Evans, but Callahan was able to capitalize on the first jury's
finding that he did not withhold evidence of a housing benefit.
-36-
The third option, which the judge embraced, was a
compromise solution. Permitting the retrial jury to reopen the
housing issue clearly disadvantaged Callahan. However, reopening
the financial benefit issue worked to Callahan's advantage since it
canceled out the first jury's finding that he withheld evidence
that he gave Evans "substantial amounts of money." That opened the
door for Callahan to persuade the retrial jury that the amount of
money in question was only $20 -- a sum we have now said was too
low to support his liability.
We find no abuse of discretion in the judge's ruling.
The causation inquiry unresolved in the 2008 trial was not "so
distinct and separable" from the housing issue that a partial
retrial limited to causation plainly could be had without
injustice. Gasoline Prods., 283 U.S. at 500. The judge's solution
to that problem was sensible and evenhanded.
The dissent's contrary view fails to give deference to
the district court's carefully considered compromise and, hence,
cannot be reconciled with the abuse of discretion standard. This
is a difficult case, factually and legally. The 2008 trial spanned
twenty-five days. The district court judge was deeply engaged with
the issues over a lengthy period of time. Our colleague
nonetheless challenges the district court's judgment with a
scattershot effort to depict its ruling as both legally and
factually erroneous. The dissent's analysis, however, reduces to
-37-
a disagreement with the district court on a question that is
uniquely within the district court's expertise: whether this is a
case where "the issues were too 'interwoven' to retry one issue
separately."
As we have explained, the district court had multiple
paths to choose from. Its conclusion that the facts surrounding
the provision of "substantial amounts of money" to Evans inevitably
would implicate the entirety of Callahan's relationship with Evans
is supportable and, in the context of this case, does not require
the extensive elaboration required by our colleague. The district
court's explanation was wholly adequate. Nor does the district
court's ruling conflict with Gasoline Products, where the Supreme
Court considered the propriety of a court's departure from the
common law rule that an error with respect to one issue results in
a new trial on all issues. See 283 U.S. at 497. The Supreme
Court's conclusion that the Seventh Amendment "does not compel a
new trial of [all issues] even though another and separable issue
must be tried again," id. at 499, does not tilt the constitutional
balance in favor of a limited retrial. In sum, we have no reason
here -- and no license -- to preempt the district court's choice on
the contours of the new trial.
Hence, there was a valid basis for Callahan's liability
in the 2009 retrial.
-38-
D. The Jury Instructions
We have now established that Callahan is not entitled to
judgment as a matter of law. We turn to his alternative argument
that a new trial is necessary because the judge's instructions on
causation to the retrial jury were erroneous. We begin our
discussion with the applicable legal framework and then quote the
pertinent parts of the jury instructions before setting out the
standard of review and moving to the merits of the issue.
1. The Legal Framework
Drumgold's claims against Callahan were brought under 42
U.S.C. § 1983, the federal civil rights statute. To recover
damages under § 1983, Drumgold must show more than a Brady
violation. See Johnson v. Mahoney, 424 F.3d 83, 89 (1st Cir.
2005); see also Rodriguez v. Woodall, 189 F. App'x 522, 527 (7th
Cir. 2006) ("[A] constitutional violation, such as a Brady
violation, is necessary, but more is needed."). He also must
demonstrate by a preponderance of the evidence a causal link
between the Brady violation and his conviction. See Johnson, 424
F.3d at 89.
As a general rule, "[w]e employ common law tort
principles when conducting inquiries into causation under § 1983."
Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009)
(internal quotation marks omitted); see also Rodríguez-Cirilo v.
García, 115 F.3d 50, 52 (1st Cir. 1997) ("The issue of causation of
-39-
damages in a section 1983 suit is based on basic notions of tort
causation."); Maldonado Santiago v. Velázquez García, 821 F.2d 822,
831 (1st Cir. 1987) ("Section 1983 imposes a causation requirement
similar to that of ordinary tort law."). There are exceptions to
this rule, though, and "[c]are must be taken in applying these
principles to the § 1983 context." Olsen v. Correiro, 189 F.3d 52,
66 n.16 (1st Cir. 1999); see also Coscia v. Town of Pembroke,
Mass., 659 F.3d 37, 40 (1st Cir. 2011); 1 Sheldon H. Nahmod, Civil
Rights and Civil Liberties Litigation: The Law of Section 1983
§ 3:106 (4th ed. 2011) ("[T]ort law purposes and interests are
often different from § 1983 purposes and interests, and thus tort
law concepts should not be blindly applied.").
Under tort causation principles, an actor may be held
liable for harm to another person if the actor's misconduct was a
factual cause of the harm, see Restatement (Third) of Torts § 26
(2010), and the harm resulted from the risks that made the conduct
wrongful in the first place, meaning that it was a reasonably
foreseeable consequence of the misconduct, see id. § 29. In turn,
misconduct is considered a factual cause of harm in two mutually
exclusive situations. The first is where the harm would not have
occurred but for the misconduct. See id. § 26. This rule is
sometimes called the "but for" causation principle. See id. § 26
cmt. b. The second scenario is where the harm was brought about
concurrently by the misconduct and an unrelated force, each of
-40-
which would have been sufficient by itself to trigger the harm.
See id. § 27. In that circumstance, the actor's misconduct was not
a necessary condition for the harm, since the harm would have
occurred in its absence due to the concurrent force. See id. § 27
cmt. a. Nevertheless, the misconduct is regarded as a factual
cause of the harm for policy reasons, since the actor should not
escape liability merely because of the fortuitous operation of
another force that also would have produced the harm on its own.
See Dan B. Dobbs et al., The Law of Torts § 189 (2d ed. 2011) ("It
would be a windfall [if the actor] were to escape liability for the
harm merely because another [force] was also sufficient to cause
the same harm."); W. Page Keeton et al., Prosser and Keeton on
Torts § 41 (5th ed. 1984). We refer to this rule as the concurrent
causation principle.
The materiality standard articulated in Brady and its
progeny incorporates a version of the "but for" causation
principle. Evidence that was withheld during a criminal trial is
material only if there is a reasonable probability that its
disclosure would have altered the trial's outcome. See Strickler,
527 U.S. at 280; Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 682.
Put another way, there must be a reasonable probability that the
defendant would not have been convicted but for the wrongful
withholding of exculpatory evidence. Hence, one cannot establish
a Brady violation without showing to the requisite standard that
-41-
the withholding of evidence was a necessary condition for the
conviction. In the criminal context, this showing may result in a
new trial or a judgment of acquittal.
To recover damages in a civil trial based on such a
violation, however, a § 1983 plaintiff must demonstrate a stronger
causal link than is inherent in Brady's materiality standard.
Having already shown a reasonable probability that he would not
have been convicted but for the withholding of evidence, the
plaintiff must then make the same showing by a preponderance of the
evidence. In other words, the factual causation inquiry
essentially replicates the materiality inquiry with a heightened
burden of proof.13
Understood in this light, there is no place in the
factual causation inquiry for the concurrent causation principle.
That principle is incompatible with Brady's materiality standard.
Whereas under the concurrent causation principle misconduct can be
a factual cause of harm even if the harm would have happened
anyway, see Restatement (Third) of Torts § 27 (2010), withheld
13
There is some logical appeal to bypassing the materiality
inquiry and simply requiring the plaintiff to prove from the outset
by a preponderance of the evidence that he would not have been
convicted but for the withholding of evidence. Nevertheless,
materiality and causation are in fact discrete inquiries and should
be considered separately. The threshold question in a § 1983 suit
is whether there has been a violation of a federally secured right.
See Baker v. McCollan, 443 U.S. 137, 140 (1979). Materiality
properly is a component of that question. The causation inquiry
begins only after a violation has been established. See Sanchez,
590 F.3d at 41.
-42-
evidence is never material within the meaning of Brady if its
disclosure would have made no difference, see United States v.
Wall, 349 F.3d 18, 23 (1st Cir. 2003).
The second element of the traditional tort causation
inquiry limits the scope of an actor's liability to harm that
results from the risks that made his conduct wrongful. See
Restatement (Third) of Torts § 29 (2010). When material
exculpatory evidence is withheld, the obvious risk is a tainted
conviction. That risk is the reason for the Brady doctrine.
Hence, once a Brady violation is established, there is no need to
ask again whether the harm (i.e., the conviction) was foreseeable.
Once a Brady violation has been shown, the causation inquiry in a
§ 1983 damages suit is only a "but for" inquiry pursuant to the
preponderance of the evidence standard.
2. The Jury Instructions
We now turn to the jury instructions given in the 2009
retrial. The judge first gave a materiality instruction that has
not been challenged.14 She then gave a lengthy causation
14
The materiality instruction was as follows:
Exculpatory evidence is material when it is of a
type that could undermine confidence in the outcome of a
trial. It would include evidence that has the potential
to alter a jury's assessment of the credibility of a
significant government witness.
In determining what is material, the question is not
whether a defendant would more likely than not receive a
different verdict if the evidence had been disclosed.
-43-
instruction, informing the retrial jury that, if it found that
Callahan withheld material exculpatory evidence, it had to decide
whether his misconduct caused Drumgold's conviction:
Now, I'll address the question of
cause, legal cause standard. If you determine
that Officer Callahan committed a
constitutional violation either by obtaining
false statements or suppressing exculpatory
evidence, and, again, material exculpatory
evidence, you then need to address the
relationship between the constitutional
violations that you found and Shawn Drumgold's
conviction. That relationship is defined by
the legal concept known as causation.
The question is whether without the evidence he would
receive a fair trial, understood as a trial resulting in
a verdict worthy of confidence.
And in considering whether a verdict worthy of
confidence would result, you have to consider the
setting. . . . In [the 1989 criminal trial], the burden
of proof was beyond a reasonable doubt. The
[prosecution] was required to convince a unanimous jury
beyond a reasonable doubt to sustain a conviction against
Mr. Drumgold. Thus, one way of understanding materiality
is to consider whether the undisclosed evidence would
have created a reasonable doubt of the defendant's guilt.
This instruction omitted the statement that Drumgold had to
show a reasonable probability that he would not have been convicted
but for Callahan's withholding of evidence. The instruction noted
that "evidence is material when it is of a type that could
undermine confidence in the outcome of a trial" and that "the
question is not whether a defendant would more likely than not
receive a different verdict if the evidence had been disclosed."
Those are important glosses on Brady's materiality standard, but
the centerpiece of the standard is a reasonable probability of a
different result. See Kyles, 514 U.S. at 434. The absence of that
formulation from the instruction detracted from the causal showing
at the heart of the materiality inquiry. Nevertheless, there is no
challenge to the materiality instruction on appeal, and this
omission is not a factor in our decision.
-44-
Causation has two elements: Factual
cause and proximate cause. An act is a
factual cause of an injury if it appears from
the evidence that it was a substantial factor
in bringing about the injury.[15] There may be
15
As explained above, an actor is liable in tort for harm to
another person if the actor's misconduct was a factual cause of the
harm, see Restatement (Third) of Torts § 26 (2010), and the harm
resulted from the risks that made the conduct wrongful in the first
place, meaning that it was a reasonably foreseeable consequence of
the misconduct, see id. § 29. These elements traditionally have
been referred to as "factual causation" and "proximate causation,"
but the terms for these two concepts sometimes have been confused,
as have the concepts themselves. See Rodríguez-Cirilo, 115 F.3d at
54 (Campbell, J., concurring) (noting confusion); Fedorczyk v.
Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996) (same);
Dan B. Dobbs et al., The Law of Torts § 185 (2d ed. 2011) ("Courts
often lump these two distinct issues together under the rubric of
'proximate cause.'"). One particular source of confusion has been
the "substantial factor" test used in many jurisdictions, under
which an actor may be held liable for harm if his misconduct was a
substantial factor in bringing about the harm and no rule of law
relieves the actor from liability because of the manner in which
the harm occurred. See Restatement (Second) of Torts § 431 (1965).
Although this test was intended as the "routine standard" for
factual causation, Restatement (Third) of Torts § 26 cmt. j (2010),
it commonly has been misunderstood to address proximate causation,
as well, see, e.g., Clement v. United States, 980 F.2d 48, 53 n.13
(1st Cir. 1992); Richard W. Wright, Causation in Tort Law, 73 Cal.
L. Rev. 1735, 1782 (1985).
The modern trend, endorsed by the American Law Institute
("ALI"), is to retain the term "factual causation" but abandon the
"substantial factor" test, see Restatement (Third) of Torts § 26
cmt. j (2010), and to replace the problematic term "proximate
causation" with "scope of liability," see id. Ch. 6, Special Note
on Proximate Cause (2010), and thereby refocus the second component
of the causation inquiry on whether the harm in question was among
"those harms that result from the risks that made the actor's
conduct tortious," id. § 29. In addition, although the ALI for
many years employed the umbrella term "legal cause" to encompass
both elements of the causation inquiry, see Restatement (Second) of
Torts § 430 (1965), it recently retired that term in an effort to
emphasize that the two elements are distinct, see Restatement
(Third) of Torts Ch. 6, Special Note on Proximate Cause (2010).
This trend has been embraced by a number of courts, see, e.g.,
June v. Union Carbide Corp., 577 F.3d 1234, 1240 (10th Cir. 2009);
-45-
a number of factual causes of any particular
injury; not everyone whose acts are factual
causes of an injury is legally responsible.
The law determines whether it is fair to hold
someone responsible for an injury using the
concept of proximate cause. An act is the
proximate cause of an injury if the injury is
a reasonably foreseeable consequence of the
act.
This does not mean that the law
recognizes only one legal cause of an injury
or damage consisting of only one factor or
thing or the conduct of one person, of only
one person. On the contrary, many factors or
things may operate at the same time either
independently or together, to cause an injury.
In that case, each may be a legal cause.
Let me give you an example of legal
causation. Two fires are raging in the
forest. One started when someone dropped a
match on the ground. The two fires join
together and burn down a barn. Dropping the
match was a substantial factor in the harm of
burning down the barn. The barn burning down
was a reasonably probable result of dropping
the match. In other words, the match legally
caused the damage to the barn even if
lightning itself would have burned it down.
Put in the context of this case, you
should decide whether Officer Callahan's
wrongful conduct was a substantial factor in
bringing about Shawn Drumgold's conviction and
whether it was reasonably foreseeable that a
conviction would result from his conduct.
Thompson v. Kaczinski, 774 N.W.2d 829, 837 (Iowa 2009), and,
properly understood, merely represents a shift in terminology, see
Restatement (Third) of Torts § 29 cmt. j (2010). The contours of
the causation inquiry are unchanged.
We use the new terminology proposed by the ALI throughout this
opinion to help us explain the error in the district judge's
causation instruction. It is premature to adopt the new
terminology generally. The district judge used the traditional
terminology.
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Defendant Callahan's, Officer Callahan's,
conduct need not be the only cause nor the
latest or the nearest cause, it is sufficient
if it concurs with some other cause acting at
the same time which in combination with it
contributed to Shawn Drumgold's conviction.
Again, concerning legal cause, I remind
you that the plaintiff has the burden of
proving that any constitutional violations you
identify were the cause of the damages
Plaintiff Drumgold has sustained. In other
words, Mr. Drumgold must prove by a
preponderance of the evidence that Officer
Callahan's actions in . . . failing to
disclose material exculpatory information were
a substantial factor in causing Mr. Drumgold's
conviction and that the conviction was a
reasonably foreseeable result of Officer
Callahan's actions. The evidence on which
you're to evaluate cause is the trial
transcript which is now before you of the 1989
criminal trial.
3. The Standard of Review
Callahan objects to this instruction because it included
the concurrent causation principle. Our standard of review depends
on whether Callahan preserved this objection. See Colón-Millín v.
Sears Roebuck de P.R., Inc., 455 F.3d 30, 40 (1st Cir. 2006).
Federal Rule of Civil Procedure 51 provides a method for
preserving objections to jury instructions. See Surprenant v.
Rivas, 424 F.3d 5, 15 (1st Cir. 2005). The judge must apprise the
parties of the proposed instructions, consider requested
instructions, and note objections before charging the jury. See
Fed. R. Civ. P. 51(b); Booker v. Mass. Dep't of Pub. Health, 612
F.3d 34, 40-41 (1st Cir. 2010); Surprenant, 424 F.3d at 15. "An
-47-
objection lodged at that time preserves the underlying issue for
appeal." Surprenant, 424 F.3d at 15; see also Fed. R. Civ. P.
51(c)(2)(A). If, however, the judge fails to inform a party of "an
instruction or action on a request" before the jury is charged, the
party may object "promptly after learning that the instruction or
request will be, or has been, given or refused." Fed. R. Civ. P.
51(c)(2)(B); see also Booker, 612 F.3d at 41. A party who objects
to an instruction must "stat[e] distinctly the matter objected to
and the grounds for the objection." Fed. R. Civ. P. 51(c)(1).
Drumgold argues that Callahan not only failed to preserve
his objection to the concurrent causation principle but invited any
instructional error by advocating the indiscriminate application of
traditional tort causation principles. See P.R. Hosp. Supply, Inc.
v. Boston Scientific Corp., 426 F.3d 503, 505 (1st Cir. 2005) ("In
general, a party may not appeal from an error to which he
contributed, either by failing to object or by affirmatively
presenting to the court the wrong law." (internal quotation marks
omitted)); 9C Charles Alan Wright & Arthur R. Miller, Federal
Practice and Procedure § 2558 (3d ed. 2008) ("The so-called invited
error rule . . . prescribes that a party may not complain on appeal
of errors that he himself invited . . . . Thus, a party who
requests a jury instruction cannot complain if the instruction, or
one substantially like it, is given by the trial judge." (footnote
omitted) (internal quotation marks omitted)).
-48-
We disagree. Before the retrial jury was charged,
Callahan objected to the inclusion in the judge's instructions of
the example of two fires combining to burn down a barn. This
example is a classic illustration of the concurrent causation
principle, see Restatement (Second) of Torts § 432 cmt. d, illus.
4 (1965), and Callahan's objection adequately alerted the judge to
his concern that this principle was inapposite. Moreover, Callahan
expressly requested a causation instruction in line with the "but
for" causation principle:
The jury should be instructed that they are to
consider the Evans issues within the context
of the entire [1989 criminal trial], and that
they may only find for Drumgold if they find
that the conviction would not have occurred
but for the alleged suppression of the Evans
evidence.
Viewed together with the objection to the illustration of the
concurrent causation principle, this requested instruction signaled
an attempt to confine the causation inquiry in the 2009 retrial to
the "but for" causation principle. Accordingly, we treat
Callahan's objection as preserved. "We review de novo preserved
claims of legal error in jury instructions, but we review for abuse
of discretion claimed errors in instructions' form or wording."
Uphoff Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir. 2010);
see also Portugues-Santana v. Rekomdiv Int'l, 657 F.3d 56, 60 (1st
Cir. 2011). In doing so, we "look to the challenged instructions
in relation to the charge as a whole, asking whether the charge in
-49-
its entirety -— and in the context of the evidence —- presented the
relevant issues to the jury fairly and adequately." Sony BMG Music
Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011) (internal
quotation marks omitted). Even if we detect an error, a new trial
is required only if the error was prejudicial. See id.
4. Analysis
The instructions given to the retrial jury appropriately
presented materiality and causation as separate, sequential
inquiries.16 However, the judge made a fundamental error in
describing the substance of the causation inquiry. She explained
the concept of factual causation by reference to the "substantial
factor" test and then fleshed out that test with a graphic
illustration of the concurrent causation principle. Specifically,
she used the example of two fires combining to destroy a barn to
underscore the point that the fire ignited by the match could be
considered "a substantial factor in the harm of burning down the
barn . . . even if lightning itself would have burned it down."
Insofar as that example implied that Callahan's misconduct could be
a factual cause of Drumgold's conviction even if Drumgold would
16
The special verdict form used in the retrial likewise
presented materiality and causation as separate questions,
directing the jury to decide first whether "the evidence withheld
by Defendant Callahan was material" and then, if so, whether
Callahan's withholding of that evidence "was a legal cause of Mr.
Drumgold's conviction."
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have been found guilty anyway, it was irreconcilable with Brady's
materiality standard and had no place in the causation inquiry.
The judge should have limited her discussion of factual
causation to the "but for" causation principle. That is, she
should have directed the jury to determine whether Drumgold had
proven by a preponderance of the evidence that he would not have
been convicted but for Callahan's wrongful withholding of
exculpatory evidence. Instead, the judge improperly invited the
jury to analyze factual causation through the lens of the
concurrent causation principle.17
We have no confidence that the retrial jury's verdict was
unaffected by the instructional error. Having linked the
"substantial factor" test with the concurrent causation principle,
the judge told the jury to "decide whether Officer Callahan's
wrongful conduct was a substantial factor in bringing about Shawn
Drumgold's conviction," and reiterated at the close of the
causation instruction that Drumgold had to "prove by a
preponderance of the evidence that Officer Callahan's actions in
. . . failing to disclose material exculpatory information were a
substantial factor in causing [his] conviction." This charge was
nearly the last thing the jury heard before it began its
17
In fairness to the district judge, we note that the issue
of causation in civil trials seeking damages for Brady violations
has not been well-developed. In that legal environment, it would
be easy to make a mistake.
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deliberations, and it diluted the standard of liability by making
it possible for the jury to find that Callahan's withholding of
evidence was a factual cause of Drumgold's constitutional injury
(i.e., his wrongful conviction) even if that evidence was not the
"but for" cause of Drumgold's conviction -- the materiality
standard required by Brady. That illogical possibility could only
have prejudiced Callahan.
It is our duty "to remain vigilant in policing the
boundaries separating tort law from constitutional law," Nix v.
Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1379 (11th Cir. 2002),
and to apply in the § 1983 context only those tort causation
principles that are compatible with the underlying constitutional
right, see Calero–Colón v. Betancourt–Lebron, 68 F.3d 1, 4 (1st
Cir. 1995) ("[T]he essential elements of actionable section 1983
claims derive first and foremost from the Constitution itself, not
necessarily from the analogous common law tort."). The causation
instruction given in this case clashed with Brady's materiality
standard. A wrongful conviction based on the withholding of
exculpatory evidence is not redressable under § 1983 without a
showing, by a preponderance of the evidence, of "but for"
causation. The erroneous instruction here permitted the jury to
impose liability even in the absence of that causal nexus.
Therefore, another retrial is necessary. See Allen v. Chance Mfg.
Co., 873 F.2d 465, 469 (1st Cir. 1989) ("An erroneous jury
-52-
instruction necessitates a new trial . . . if the error could have
affected the result of the jury's deliberations.").
III.
We vacate the judgment in Drumgold's favor and remand
this case to the district court for a new trial consistent with
this opinion. Each party is to bear its own costs.
So ordered.
– Dissenting Opinion Follows --
-53-
LYNCH, Chief Judge, concurring in part, dissenting in
part, and dissenting in the judgment. I join two of the majority's
holdings: (1) that evidence of Callahan's provision of $20 to
Evans, as found by the 2009 jury, was not material exculpatory
evidence, and (2) that the district court erred in its causation
instruction and that this error prejudiced Callahan. I dissent
from the qualified immunity and scope of retrial holdings. On both
of those issues, Callahan was and is entitled to judgment as a
matter of law, and the case should not be remanded.
I.
As to both issues on which I dissent, some background is
provided.
On October 13, 1989, Shawn Drumgold was convicted in
Massachusetts state court of the first degree murder of twelve-
year-old Darlene Tiffany Moore. The Massachusetts Supreme Judicial
Court (SJC) affirmed the conviction on direct appeal in 1996. See
Commonwealth v. Drumgold, 668 N.E.2d 300 (Mass. 1996). In 2003, a
Massachusetts state judge held an evidentiary hearing on Drumgold's
motion for a new trial, based on Drumgold's allegations of a series
of newly discovered defects in the original trial. See Drumgold v.
Commonwealth, 937 N.E.2d 450, 454 (Mass. 2010). Following the
hearing, the Commonwealth of Massachusetts filed a motion to vacate
the conviction. Id. The Commonwealth denied that any of
Drumgold's allegations, taken alone, would justify a new trial, but
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it admitted that, taken together, all of the allegations indicated
that "justice may not have been done." Id. at 454 n.11. With the
defendant and the prosecutor in agreement that a new trial was
warranted, the state judge granted a new trial. Id. at 456-57.
She emphasized that her ruling did not mean that Drumgold was
factually innocent and did not mean that police or prosecutorial
misconduct had been established. See id. at 457.
The evidence before the state judge in 2003 included: (1)
that a key eyewitness, Mary Alexander, had been suffering from
terminal brain cancer at the time of her testimony, a condition
which caused memory loss, id. at 454-55; (2) that another key
eyewitness, Tracie Peaks, had recanted her 1989 testimony and now
claimed that it had been coerced, id. at 455 n.12; (3) that a third
identification witness had also recanted his 1989 testimony, id. at
456 n.15; and (4) that Ricky Evans had recanted his 1989 testimony
and that there had been undisclosed promises made to Evans
regarding pending criminal charges against him and regarding the
provision of housing and meals to him, id. at 455-56.
Having considered all of these grounds cumulatively, the
judge vacated Drumgold's conviction, finding that he had been
denied his right to a fair trial. Id. at 457. The judge
emphasized that "nothing in [her] ruling in any way should be
construed as a specific finding or determination . . . as to any
grounds advanced by [Drumgold] in his motion for a new trial." Id.-55-
After the state court's decision, the Commonwealth filed a nolle
prosequi, ending all criminal proceedings against Drumgold arising
out of the 1989 murder. Id. at 452.
Drumgold then filed a lawsuit against the Commonwealth in
state court under the Massachusetts Erroneous Convictions Law,
Mass. Gen. Laws ch. 258D, which provides for compensation up to
$500,000 for victims of wrongful convictions, id. § 5. On
application for direct appellate review of the denial of the
Commonwealth's motion for summary judgment in that case, the SJC
ruled that Drumgold was an eligible claimant under the statute.
Drumgold, 937 N.E.2d at 452; see Mass. Gen. Laws ch. 258D, § 1. As
the SJC's decision made clear, the combination of the various
grounds offered in the new trial motion, and particularly the
allegations regarding Alexander, were very serious. See Drumgold,
937 N.E.2d at 457-58. The present appeal involves only a portion
of the fourth ground described above. The state case settled after
remand; there is no public record of the amount the Commonwealth
paid in settlement.
Meanwhile, in 2004, Drumgold also filed a federal lawsuit
that led to this appeal.18 In the district court, Drumgold asserted
claims under 42 U.S.C. § 1983 and Massachusetts General Laws ch.
12, § 11I, against the City of Boston and three police officers,
18
Drumgold filed his suit under the Erroneous Convictions Law
separately because that statute provides for exclusive jurisdiction
in Massachusetts Superior Court. Mass. Gen. Laws ch. 258D, § 3.
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including Callahan. At the first trial of Drumgold's claims, in
2008, the jury concluded that Callahan had not in fact withheld or
manufactured evidence relating to Mary Alexander or Tracie Peaks.
As to Ricky Evans, the 2008 jury found that Callahan had not
solicited false statements from him regarding the night of the
murder and had only withheld evidence relating to certain cash
payments to Evans, the amount of which the jury did not determine.
On the twenty-fifth day of trial, the jury hung on the question of
whether those payments had been a legal cause of Drumgold's
injury.19
Nonetheless, the district court granted a retrial on all
of Drumgold's claims relating to Ricky Evans. As a result of the
second trial, in 2009, Drumgold obtained a $14 million verdict --
approximately a million dollars per year for each year he spent in
prison, a rate we have described as "extremely generous" in
wrongful conviction cases. Limone v. United States, 579 F.3d 79,
106 (1st Cir. 2009). Unlike the panoply of reasons the state court
gave as the basis for vacating Drumgold's conviction, the basis for
the 2009 damages award was solely that Callahan had withheld
evidence of housing benefits and money benefits he had provided to
19
The jury rejected all theories of liability for the other
police officer who remained as a defendant in the 2008 trial. The
district court bifurcated Drumgold's claims against the City of
Boston from his claims against the individual police officers. The
portion of the case involving the City is stayed pending the
outcome of this appeal.
-57-
Ricky Evans. See Drumgold v. Callahan, 806 F. Supp. 2d 405, 408
(D. Mass. 2011). That verdict was infected with error due to its
jury instructions, as the majority holds. In addition, part of the
2009 jury's verdict directly contradicted part of the jury's
decision in the first trial: the 2008 jury determined that Callahan
had not withheld evidence about housing Evans in a hotel; the 2009
jury found that he had.
II.
A. Qualified Immunity
In my view, the law requires that Callahan be granted
qualified immunity.20
In a qualified immunity inquiry, the court must ask (1)
whether the plaintiff has made out a violation of a constitutional
right, and (2) whether that right was "clearly established" at the
20
Callahan has not waived his qualified immunity argument.
He raised it at both the 2008 and 2009 trials, including a lengthy
colloquy at the jury charge conference in 2008 regarding the
applicable law. See Lynch v. City of Boston, 180 F.3d 1, 13 n.9
(1st Cir. 1999) ("[Federal Rule of Civil Procedure] 50(a)(2) is
designed to prevent unfair surprise and to provide the responding
party with an opportunity to correct any deficiencies in her
proof. Our review of the record demonstrates that [plaintiff]
could hardly have been surprised by [defendant]'s assertion of
qualified immunity." (citation omitted)). Moreover, when Callahan
again argued for qualified immunity in his renewed motion for
judgment as a matter of law following the 2009 jury's verdict,
Drumgold did not contend in his opposition to that motion that
Callahan had waived the argument. Because Drumgold never argued
waiver in the district court, the trial judge did not address the
issue in her ruling on Callahan's post-trial motions. See
Drumgold, 806 F. Supp. 2d at 417-19. If anything, then, it is
Drumgold who has waived the argument that Callahan waived the
qualified immunity defense.
-58-
time of the violation -- although the court need not necessarily
address the questions in that order. See Maldonado v. Fontanes,
568 F.3d 263, 269-70 (1st Cir. 2009) (citing Pearson v. Callahan,
555 U.S. 223, 232, 236 (2009)). The "clearly established" prong,
in turn, encompasses two questions: whether the right was, in
general, "sufficiently clear that a reasonable official would
understand that what he [was] doing violate[d] that right," id. at
269 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))
(internal quotation mark omitted); and whether, under the
particular facts of the case, a reasonable defendant would have
understood that he was violating the right, id.As the majority recognizes, the $20 that Callahan gave to
Evans, as found by the 2009 jury, was not material exculpatory
evidence. Drumgold thus failed to make out a constitutional
violation as to the money, and Callahan is entitled to qualified
immunity on that issue under the first prong of the qualified
immunity analysis. The only remaining issue, then, is whether
Callahan was entitled to qualified immunity on the claim that he
did not disclose to the prosecution in Drumgold's murder case that
Ricky Evans was being housed in a hotel.
Callahan was clearly entitled to immunity, on several
grounds.21 The law was not clearly established in 1989 that
21
As I explain below in section II.B, Callahan was entitled
to the benefit of the first jury's verdict on the hotel housing
issue. The 2008 jury found that he did not withhold exculpatory
-59-
Callahan was under any duty to disclose such information, and a
reasonable police officer in Callahan's position would not have
understood that his alleged actions regarding Evans's housing
violated a constitutional right.
This court has explained very recently that, at least
until 1995, it was not clearly established that the affirmative
disclosure obligation imposed on prosecutors by Brady v. Maryland,
373 U.S. 83 (1963), applied to police officers. See Haley v. City
of Boston, 657 F.3d 39, 48-49 (1st Cir. 2011). "By its terms,
Brady applied only to prosecutors." Id. at 48. Even after 1995,
when the Supreme Court decided Kyles v. Whitley, 514 U.S. 419(1995), the role of police officers in the Brady calculus remained
"indirect," as that case held "that the disclosure obligation
imposed by Brady extends to evidence known only to police officers,
but that the responsibility for obtaining and disclosing such
evidence remains the duty of the prosecutor." Haley, 657 F.3d at49 (citing Kyles, 514 U.S. at 437-38).
It certainly was not clearly established in 1989 that a
police officer in Callahan's position had an affirmative obligation
under Brady to disclose potential impeachment evidence of the sort
evidence relating to Evans staying in a hotel and being provided
with meals. Based on the 2008 jury's verdict, Callahan should have
been granted qualified immunity on the hotel issue under the first
prong of the qualified immunity inquiry. However, even if the 2009
jury's verdict on this point were permissible, Callahan should have
been granted qualified immunity on that verdict under the second
prong of the analysis, as I explain in this section.
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at issue here. Indeed, it is not clearly established today. See,
e.g., Reid v. Simmons, 163 F. Supp. 2d 81, 84 (D.N.H. 2001)
(describing "the circumstances under which police officers may be
held civilly liable for Brady violations" as "a matter of
considerable uncertainty"), aff'd, 47 Fed. App'x 5 (1st Cir. 2002)
(per curiam). Compare Jean v. Collins, 221 F.3d 656, 660 (4th Cir.
2000) (en banc) (Wilkinson, J., concurring in the judgment) ("[T]o
speak of the duty binding police officers as a Brady duty is simply
incorrect. The Supreme Court has always defined the Brady duty as
one that rests with the prosecution."), with Newsome v. McCabe, 256
F.3d 747, 752-53 (7th Cir. 2001) ("The Brady principle was
announced in 1963, and we [have] applied it . . . to affirm a hefty
award of damages against [police] officers who withheld exculpatory
information in 1981.").
Both of the parties and the trial judge conceived of the
housing and money issues as Brady issues throughout the district
court proceedings.22 For example, at the pretrial conference before
22
This treatment was distinct from the parties' and the
court's view of Drumgold's allegations that Callahan had
manufactured evidence and convinced Evans to give false testimony.
Although the framing of these latter allegations was inconsistent
throughout the parties' various filings, they were frequently
understood as involving due process rights other than those defined
by Brady. The hotel and money issues, by contrast, were
consistently treated as Brady issues. Callahan's arguments about
the jury instructions on state of mind, cited by the majority, were
premised on the assumption that Brady applied to police officers
under Callahan's circumstances, an assumption later negated by
Haley (a case decided in 2011, after both of Drumgold's trials were
over).
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the 2008 trial, the district court described one of the "principal
constitutional rights" at issue in the case as "Brady violations."
In both 2008 and 2009, Drumgold relied on Brady (and on Kyles -- a
case that post-dated Callahan's alleged actions) in requesting jury
instructions on a police officer's duty to disclose evidence to the
prosecution. Before the 2008 trial, the district court issued a
document titled "Proposed Brady Instruction." In the charge
conference preceding the 2008 jury instructions, Callahan's counsel
engaged in a lengthy discussion with the court regarding the lack
of clarity about how to apply Brady to the situation in Drumgold's
case. In Callahan's renewed motion for judgment as a matter of law
following the 2009 trial, and in Drumgold's opposition to that
motion, the parties argued for or against entering judgment for
Callahan on the basis of whether a Brady violation had occurred.
The district court echoed this understanding at the hearing on
Callahan's motion, and a Brady theory was the basis of the court's
denial of qualified immunity. See Drumgold, 806 F. Supp. 2d at
409, 417-19.
The district court's reason for denying immunity was
error, as the majority admits. Because Callahan was not subject to
a clearly established Brady duty in 1989, any alleged violation of
Brady's dictates cannot be the basis for denying Callahan qualified
immunity. The district court's reasoning cannot survive our
decision in Haley. On this point, the majority and I agree.
-62-
However, the majority then attempts to rescue the
district court's qualified immunity ruling by instead relying on a
line of pre-Brady cases that neither the parties nor the trial
judge ever used to support their arguments about the hotel
evidence. In fact, these cases -- primarily Mooney v. Holohan, 294
U.S. 103, 112-13 (1935) (per curiam), and Pyle v. Kansas, 317 U.S.
213, 216 (1942) -- are not even cited in Drumgold's brief before
this court.23
There are a number of problems with the majority's
argument. First, the Mooney line of cases is an afterthought, not
briefed by the parties nor explicated in the record. It is unfair
to Callahan to deny immunity based on an argument that was not
preserved and as to which he had no notice. See DeMayo v. Nugent,
517 F.3d 11, 15 (1st Cir. 2008) (stating that defendants who had
used one Fourth Amendment theory to justify their actions before
the district court could not "switch their theories on appeal" to
a different Fourth Amendment reasoning); United States v. Slade,
980 F.2d 27, 31 (1st Cir. 1992) (rejecting argument that "only new
facts and not new arguments about those facts are prohibited from
debuting in the court of appeals" and concluding that "the
23
In 2008, Drumgold did request two jury instructions based
on these cases, but they both addressed the allegation that
Callahan had manufactured Evans's testimony, not the allegation
that he had withheld evidence of benefits. Mooney and Pyle are
otherwise absent from Drumgold's pleadings both in the district
court and in this appeal.
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raise-or-waive rule applies with full force when an appellant tries
to present a new theory about why facts previously placed on record
are determinative"). This court may not create an argument for a
party and may not deny immunity based on a different theory than
that presented at trial. Such restraint is particularly important
in the context of qualified immunity, which, after all, encompasses
immunity from having to go to trial at all.
The majority's rejoinder that a mere citation to Brady
without a citation to Mooney and Pyle suffices is off point.24
Callahan lacked fair notice of the argument that the hotel evidence
-- without more -- implicated a Mooney-based due process right. As
explained above, all involved in the trial believed that the hotel
evidence issue was governed by Brady. It is only the majority
which has recharacterized the hotel claim as a non-Brady claim.
The majority appears to take the position that this
distinction among various due process arguments means Brady does
not govern. Not so. As we stated in Haley, it is necessary to
distinguish Brady-based claims from Mooney-based claims when
conducting a qualified immunity analysis. See 657 F.3d at 46. The
two categories do not always cover the same types of claims,
because they implicate two different facets of a criminal
24
This is not about whether Callahan lacked fair notice that
Drumgold had alleged a due process violation based on the
intentional use of (non-hotel and cash) false evidence, a claim
that, if proved, could have fallen within the scope of Mooney and
Pyle.
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defendant's due process rights: under Mooney, the right to be free
from a deliberately contrived conviction, and under Brady, the
right to receive material exculpatory evidence known to the
prosecution regardless of the prosecutor's good or bad faith.
The majority recognizes that this court has been "careful
to distinguish" between the principles of Mooney and Brady. Yet
the majority then goes on to elide this very distinction by
treating "Drumgold's invocation of Brady as shorthand for his full
complement of due process rights." This conflation of the two
types of due process rights does not comport with our precedent.
The only possible way to connect Drumgold's explicitly Brady-based
claims regarding the hotel to his apparently Mooney-based claims
regarding intentional framing would be to treat the hotel evidence
as proof that Callahan had induced Evans to give perjured
testimony. But, as I detail below, both juries found precisely to
the contrary: they rejected the allegation that Callahan had
elicited false statements from Ricky Evans about Evans's
observations on the night of the murder. Without even this tenuous
connection to Mooney, all that is left is a Brady claim, which is
exactly how the parties argued the hotel question and how the
district court decided Callahan's motion for judgment as a matter
of law following the final 2009 verdict. That is why it is
inappropriate for this court to now insert a Mooney argument where
none existed before -- and even more, to do so to defeat immunity.
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On this basis alone, Mooney and Pyle cannot provide a
justification for denying Callahan immunity. But even if one were
to accept arguendo that Mooney and Pyle may be brought late to the
case, and the theory of liability altered on appeal, the juries'
findings preclude the conclusion that these cases defeat Callahan's
argument for qualified immunity. Under the facts as found by both
the 2008 and 2009 juries, a reasonable police officer in Callahan's
position in 1989 would not have known that his actions ran afoul of
Mooney and Pyle, and, in fact, would have had every reason to think
they did not.
The majority states that Mooney and Pyle identified a due
process violation where the state procures a conviction by the
knowing use of perjured testimony and the deliberate suppression of
exculpatory evidence.25 See Mooney, 294 U.S. at 112-13; Pyle, 317
U.S. at 216. Since the rule of these cases was clearly established
25
The majority characterizes this principle as "the deliberate
suppression aspect of Brady." But Mooney and Pyle, having preceded
Brady, cannot fairly be called an "aspect" of the latter case.
While the Brady Court did describe its holding as an "extension" of
Mooney and Pyle, see 373 U.S. at 86, the earlier cases stand for
their own previously established proposition, which is independent
of the later development of Brady and its progeny. As I have
explained above, there are important differences between the due
process rights identified in each line of cases.
In Mooney, the Court held that, after exhaustion of state
remedies, the federal writ of habeas corpus is available to state
prisoners who assert, with some colorable support, that state
prosecutors knowingly used perjured testimony against them and then
knowingly suppressed evidence which could have been used to counter
the perjured testimony. See 294 U.S. at 109-10. Pyle, a very
short opinion, merely states that such allegations are sufficient
to state a claim for habeas corpus. See 317 U.S. at 215-16.
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in 1989, the majority reasons, Callahan is not entitled to
qualified immunity, because he deliberately suppressed evidence.
That is not what the juries' findings establish. While, in my
view, Callahan was entitled to qualified immunity as a legal matter
when the district court erroneously denied it on Brady grounds, the
juries' verdicts certainly meant he was entitled to immunity.
Drumgold's original complaint alleged that Callahan had
fed Evans details of the crime and had "suggested" that Evans
select Drumgold as the shooter from an array of photographs. The
complaint separately alleged that Callahan had promised Evans
assistance with his pending criminal charges and had failed to
disclose the hotel or cash assistance.26 But unlike in other cases
where, because of their procedural postures, we have had to accept
such allegations in the light most favorable to the plaintiffs,
see, e.g., Haley, 657 F.3d at 46; Limone v. Condon, 372 F.3d 39, 43
(1st Cir. 2004), here we have the benefit of a jury's findings upon
a fully developed record. As material to the purported Mooney and
Pyle theory and the immunity question, those findings rejected all
of Drumgold's relevant allegations.
The 2008 jury found that Callahan had not manufactured
evidence, withheld evidence, or procured false statements regarding
Evans's observations on the night of the murder, Evans's stay in
26
The complaint did not allege that disclosure of the
information about benefits would have revealed the allegedly
manufactured testimony.
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the hotel, or the disposition of Evans's criminal cases. That jury
also rejected allegations that Callahan had manufactured evidence
or procured false statements with regard to Mary Alexander and
Tracie Peaks. These findings alone required immunity to be
granted, as I explain.
The 2009 jury did not reconsider the allegations relating
to witnesses other than Evans, and it found again that Callahan had
not obtained any false statements from Evans regarding the night of
the murder and had not withheld evidence relating to Evans's
criminal charges. The 2009 jury did find that Callahan had
withheld evidence regarding the housing and money provided to
Evans. But as the majority has explained, withholding information
about $20 was no constitutional violation at all.
The juries' findings clearly demonstrate that this is not
a case about the deliberate creation of false evidence, the knowing
submission of perjured testimony, or the attempt to frame an
unwitting suspect -- that is, the types of misconduct contemplated
by Mooney and Pyle. See, e.g., Limone, 372 F.3d at 44 (applying
Mooney and Pyle to deny dismissal on qualified immunity grounds
where plaintiff credibly alleged that police officers had developed
a key witness's perjured testimony in order to cover for the real
murderers). Rather, it is a case about affirmative disclosure
obligations.
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Mooney and Pyle did not clearly establish a rule
governing what a police officer must affirmatively disclose;
indeed, Brady itself recognized that the earlier cases did not
establish affirmative disclosure obligations, as it described its
own holding as "an extension" of Mooney. 373 U.S. at 86. Nothing
in Mooney or Pyle would have put Callahan on notice that the
Constitution required him to disclose that Evans had been housed at
a hotel. In fact, that is a common accommodation to secure the
attendance at trial of a prosecution witness, and hardly surprising
information to the criminal bar.
In Limone, we held that, as of 1967, it was clearly
established under Mooney that police officers were prohibited from
"deliberately fabricating evidence and framing individuals for
crimes they did not commit." 372 F.3d at 45, 47-48. A reasonable
officer in Callahan's position in 1989 would not have viewed the
alleged nondisclosure of the hotel accommodations as falling within
that proscription. Such an officer would have viewed those actions
as, if anything, falling under Brady, and no contemporaneous case
law held to the contrary.
The Supreme Court has recently reiterated that to deny
qualified immunity, "existing precedent must have placed the
statutory or constitutional question beyond debate." Ashcroft v.
al-Kidd, 131 S. Ct. 2074, 2083 (2011). The majority's conclusions
cannot be squared with this command.
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Although Mooney and Pyle may support a denial of
qualified immunity where, at the motion to dismiss stage, the
plaintiff has credibly alleged that the police committed a
particularly egregious act of deliberately concealing material
exculpatory evidence from prosecutors, see Haley, 657 F.3d at 49-
51, this is not such a case. Nor is it even close to being such a
case. The juries' findings do not permit any inference that
Callahan's actions were part of an attempt to frame Drumgold
through perjured testimony. Because the juries rejected the claim
that Callahan had procured false statements from Evans about the
night of the murder, the framing theory must fall away. If
Callahan did not induce Evans to lie, the hotel lodging could not
have been evidence of an inducement to lie.
Further, in the instances where the juries did find that
Callahan withheld evidence, they made no express finding that
Callahan acted with the purpose of suppressing such evidence. The
holdings of Mooney, Pyle, and their progeny prohibit behavior that
is characterized by specific intent: they hold that state actors,
knowing that certain evidence or testimony is false, must not
deliberately use that evidence for the purpose of obtaining a
tainted conviction.27 Because 42 U.S.C. § 1983 does not provide a
27
See Mooney, 294 U.S. at 112 ("[D]ue process . . . cannot be
deemed to be satisfied . . . if a state has contrived a conviction
through the pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known
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source of substantive rights, but rather provides "a method for
vindicating federal rights elsewhere conferred," Baker v. McCollan,
443 U.S. 137, 144 n.3 (1979), a § 1983 plaintiff who alleges a
violation of the constitutional principle recognized in Mooney and
Pyle must prove that the defendant had the state of mind those
cases require. See Graham v. Connor, 490 U.S. 386, 394 (1989)
("The validity of the [§ 1983] claim must . . . be judged by
reference to the specific constitutional standard which governs
that right."). Given all of the ambiguity as to disclosure
obligations outlined above, as well as the juries' findings, this
record requires that immunity be granted.
It is clear that there was no finding of specific intent.
Not only were the district court's jury instructions on state of
to be perjured."); Pyle, 317 U.S. at 215-16 ("Petitioner's papers
are inexpertly drawn, but they do set forth allegations that his
imprisonment resulted from perjured testimony, knowingly used by
the State authorities to obtain his conviction, and from the
deliberate suppression by those same authorities of evidence
favorable to him."); Napue v. Illinois, 360 U.S. 264, 269 (1959)
(recognizing "[t]he principle that a State may not knowingly use
false evidence, including false testimony, to obtain a tainted
conviction"); Limone, 372 F.3d at 45 ("[T]hose charged with
upholding the law are prohibited from deliberately fabricating
evidence and framing individuals for crimes they did not commit.");
Haley, 657 F.3d at 49 ("Deliberate concealment of material evidence
by the police, designed to grease the skids for false testimony and
encourage wrongful conviction, unarguably implicates a defendant's
due process rights."). Compare Brady, 373 U.S. at 87 (specifying
that the due process right recognized in that case applies
"irrespective of the good faith or bad faith of the prosecution").
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mind confusing or even contradictory in both trials,28 but because
the court stated that it was supposed to be giving a Brady
instruction, the particular state of mind requirements of Mooney
and Pyle never entered the picture. The 2008 verdict slip, which
essentially exonerated Callahan, made no reference to his state of
mind at all. The 2009 verdict slip asked whether Callahan
"intentionally or recklessly" withheld evidence, so the jury could
have found liability without finding specific intent.29
28
In 2008, the trial judge told the jury that in order to find
a § 1983 violation, "it's not necessary to find that the defendants
had any specific intent to deprive the plaintiff of his
constitutional rights[.] . . . [T]he plaintiff is entitled to
relief if the defendant intended the actions which resulted in a
violation of his constitutional right." Yet the judge later
instructed that "[i]n order to prevail on a claim that defendants
suppressed exculpatory evidence, the plaintiff must prove that one
or both of the defendants knew of certain material exculpatory
evidence and intentionally and deliberately withheld the
information from the prosecutor." Callahan's counsel pointed out
this contradiction in a colloquy just before closing arguments and
objected to the instructions after they were given. In the 2009
trial, the judge first instructed the jury that the § 1983 charge
required Drumgold to show "that the defendant either intentionally
or recklessly committed the action which then resulted in a
violation of the plaintiff's constitutional rights," then that
Callahan would be liable if he "knowingly and deliberately withheld
any material exculpatory evidence from the prosecutor."
29
I do not agree with the majority's suggestion that
recklessness is sufficient to satisfy Mooney's (and related cases')
state of mind requirement. The case that the majority cites for
this proposition, Tennison v. City and County of San Francisco, 570
F.3d 1078 (9th Cir. 2009), addressed the state of mind required to
show a Brady-based § 1983 violation in a situation where Brady was
held to apply to police inspectors. See id. at 1087-88. As
detailed above, the Mooney and Pyle standard is distinct from the
Brady standard. The fact that Callahan invoked "recklessness" in
his memorandum of law regarding jury instructions is of no moment
when the standard he invoked was inapplicable.
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Beyond that, the evidence at trial showed that, in 1989,
Callahan had informed at least one member of the district
attorney's office about Evans's staying in the hotel, although he
apparently did not tell the specific prosecutor in the Drumgold
murder trial. See Drumgold, 806 F. Supp. 2d at 410-11 & nn.5-6.
This evidence of disclosure demonstrates that Callahan was not
deliberately hiding the information from the district attorney's
office in order to procure Drumgold's conviction.30
Under these circumstances, it unduly strains the
principle recognized in Mooney and Pyle to hold that a reasonable
officer in Callahan's position would have known that failing to
disclose the hotel evidence would be a violation of Drumgold's due
process rights. Where, as here, the jury's findings do not permit
30
In denying Callahan's 2009 post-trial motion for qualified
immunity, the district court relied on the theory that Callahan had
failed to fulfill his Brady obligation because he had reported the
hotel information to the wrong prosecutor. Drumgold, 806 F. Supp.
2d at 418-19. This was incorrect under Brady and is even more so
under Mooney and Pyle.
The answer to the question of to whom (and how) a police
officer ought to disclose potentially exculpatory evidence was not
clearly established in 1989, and it is still not clearly
established today. Neither party, nor the district court, provided
controlling authority or even anything approaching a consensus of
persuasive authority on this issue. See Wilson v. Layne, 526 U.S.
603, 617 (1999). There was no support for denying qualified
immunity on this basis, even under the district court's Brady-based
reasoning. And under the majority's non-Brady theory, if a
reasonable officer in Callahan's position truthfully disclosed
evidence to the district attorney's office -- even if the
disclosure were later adjudged to be legally insufficient -- he
would reasonably believe that he was not violating Mooney and
Pyle's prohibition of intentional framing.
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a theory of intentional framing, nor include a finding of the
requisite knowledge or intent, the pre-Brady cases are not on
point. To hold otherwise is to blur the line between Brady's no-
fault nondisclosure obligation and Mooney and Pyle's proscription
against the knowing and deliberate use of false evidence.
This is exactly the kind of situation for which qualified
immunity was designed, even against the background of Haley and
Limone. Callahan's circumstances are a far cry from those alleged
in those two cases, where plaintiffs claimed that the police were
"intentionally framing an accused person" by a "deliberate attempt
to secure a conviction, without regard to actual guilt or
innocence," Haley, 657 F.3d at 46 -- not that the police disclosed
evidence in a less-than-thorough manner. The doctrine of qualified
immunity "protects all state actors except 'the plainly incompetent
[and] those who knowingly violate the law.'" Haley, 657 F.3d at 47(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The juries'
findings reveal that Callahan does not fall into either category.
Remanding the case for yet a third trial, when Callahan was clearly
entitled to qualified immunity no later than the first trial,
denies him the benefit of those juries' findings, in violation of
his Seventh Amendment rights and his immunity rights. Callahan is
entitled to qualified immunity, and judgment should enter for him
on that basis.
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B. The Scope of the 2009 Retrial
The district court erred in ordering a retrial of the
hotel issue before the second jury, abusing its discretion. It did
so in derogation of Callahan's Seventh Amendment rights. The
retrial jury should not have been permitted to reexamine the
question of whether Callahan withheld the hotel evidence, since
that question was resolved in his favor during the 2008 trial.
That question was not so inextricably intertwined with the money
issue as to require a full retrial. The district court should have
ordered a retrial on the money issue only: that is, the court
should have asked the second jury to determine whether Callahan had
deliberately suppressed evidence that he gave Evans money, the
amount of such money (if any), whether the sum was material, and
whether the withholding of that information caused Drumgold's
injury.
In the 2008 trial, the district court divided the jury
deliberations into two phases. In the first phase (the "violation"
phase), the jury was to decide, inter alia, whether Callahan
violated Drumgold's right to a fair trial by withholding evidence
that Callahan arranged free housing for Evans and/or that Callahan
gave Evans "substantial amounts of money."31 If the jury answered
31
The relevant special verdict questions read as follows:
Has the Plaintiff, Shawn Drumgold, proven by a
preponderance of the evidence that Defendant Timothy
Callahan violated his right to a fair trial by
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"yes" to either or both of these questions, the second phase (the
"causation" phase) would ask the jury to decide whether such
withholding was the cause of Drumgold's injury. The 2008 jury thus
potentially faced four questions: (1) whether Callahan withheld
housing evidence; (2) whether Callahan withheld money evidence; (3)
whether withholding the housing evidence caused Drumgold's injury;
and (4) whether withholding the money evidence cause Drumgold's
injury.
In the first phase, the 2008 jury determined that
Callahan had not withheld evidence regarding the housing but had
withheld evidence regarding the money; that is, it answered "no" to
question 1 and "yes" to question 2. Following the verdict in the
first phase, the parties declined the district court's suggestion
that the jury be instructed to clarify what amount of money
constituted a "substantial amount." In the second phase of
deliberations, the jury never reached question 3 because it had
answered "no" to question 1. It then hung on question 4: whether
withholding exculpatory evidence from prosecutors,
manufacturing evidence, and/or obtaining false statements
regarding Ricky Evans being housed at a hotel and
provided with meals?
Has the Plaintiff, Shawn Drumgold, proven by a
preponderance of the evidence that Defendant Timothy
Callahan violated his right to a fair trial by
withholding exculpatory evidence from prosecutors,
manufacturing evidence, and/or obtaining false statements
regarding Ricky Evans being given substantial amounts of
money?
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Callahan's provision of money to Evans had caused Drumgold's
injury.
After the district court declared a mistrial, Callahan
moved for entry of final judgment as to, inter alia, the housing
issue, and he sought to restrict the scope of the retrial to the
causation question with regard to the money. Because the housing
issue was separate from the money issue and had been decided by a
jury, it should not have been retried.
The district judge, however, denied Callahan's motion,
stating that a limited retrial which did not reopen the housing
questions was not feasible because
[a] second jury would obviously have to be
instructed that Callahan had violated
Drumgold's civil rights by giving him
"substantial amounts of money" and not
disclosing it. The jury would be left with
the ambiguity of what "substantial money"
meant -- an issue wholly unresolved in the
first trial, notwithstanding the Court's
efforts to seek further clarification. And
the only way to resolve that ambiguity would
be to relate each side's evidence concerning
the treatment of Ricky Evans . . . . In
short, all aspects of Ricky Evans's portion of
this case would be involved.
On this basis, the district judge allowed the retrial jury to
revisit both "violation" questions -- that is, whether Callahan had
failed to disclose that he had given housing benefits to Evans and
whether he had failed to disclose that he had given money to Evans.
This rationale does not in fact explain why the housing issue
should have been subject to retrial.
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A partial retrial is permissible under the Seventh
Amendment when some, but not all, issues in a case have been
properly and conclusively resolved by a jury verdict. Gasoline
Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931). In
order for a partial retrial to be appropriate, it must "clearly
appear[]" that the remaining issues are "so distinct and separable
from the others that a trial of [them] alone may be had without
injustice." Id.The decision whether to grant a full or a partial retrial
is generally committed to the discretion of the trial judge, see
Sprague v. Boston & Me. Corp., 769 F.2d 26, 28 (1st Cir. 1985), and
thus our review is for abuse of discretion, see Winn v. Lafayette
Town House, 839 F.2d 835, 837 (1st Cir. 1988); Sprague, 769 F.2d at
28. An error of law, here an error as to the dictates of Gasoline
Products, constitutes an abuse of discretion. A district court may
also abuse its discretion when it misapprehends the nature of the
relationship between the issues sought to be retried, Winn, 839
F.2d at 836-37, or when it does not give an adequate basis in the
record for its determination that a full retrial is necessary,
Crane v. Consol. Rail Corp., 731 F.2d 1042, 1049-51 (2d Cir. 1984)
(Friendly, J.). All three of these types of problems appear in the
district court's retrial order.
First, neither of the primary rationales for ordering a
full rather than a partial retrial are present here. Generally, a
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full retrial is necessary when (1) the original verdict represented
a compromise among jurors who could not otherwise agree on multiple
issues, or (2) the error infecting one issue in the verdict likely
spread to the others. See 11 Wright & Miller, Federal Practice &
Procedure § 2814 (2012); see also Phav v. Trueblood, Inc., 915 F.2d
754, 767-68 (1st Cir. 1990) (explaining compromise verdicts and
citing cases). Indeed, in Vizzini v. Ford Motor Co., 569 F.2d 754(3d Cir. 1977), the court observed that partial retrials should be
granted "only in those cases where it is plain that the error which
has crept into one element of the verdict did not in any way affect
the determination of any other issue." Id. at 760 (quoting Romer
v. Baldwin, 317 F.2d 919, 922-23 (3d Cir. 1963)) (internal
quotation marks omitted).
Significantly, when a jury answers special
interrogatories rather than giving a general verdict, courts have
more readily preserved the jury's findings and ordered partial
rather than full retrials. See, e.g., LaPlante v. Am. Honda Motor
Co., 27 F.3d 731, 738 (1st Cir. 1994) (remanding for new trial only
on liability and not on damages, where damages award was distinct
and separable, "particularly" because the first jury answered
"detailed interrogatories" on how it arrived at the damages
number). In Crane v. Consolidated Rail Corp., 731 F.2d 1042, Judge
Friendly noted that when a trial court uses special
interrogatories, the "trial or reviewing court may be reasonably
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certain that an erroneous verdict was reached independent of
another verdict," and unless there are "obvious inconsistencies,"
the court should presume that each of the jury's answers is a "good
faith response[] to the question[] presented." Id. at 1050(quoting Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 906 (2d
Cir. 1982)) (internal quotation mark omitted).
There were no inconsistencies here, much less obvious
ones. Neither party has argued that the 2008 jury was confused
when it gave its special verdict answers, or that the jury's
indecision on causation as to the money "infected" its decision
about the lack of violation as to housing. Nor was that the
rationale of the trial judge in the order on the scope of the
retrial.
This is also not a situation where, considering the
totality of the circumstances, the issues were too "interwoven" to
retry one issue separately. See 11 Wright & Miller § 2814. This
case does not involve the much more common retrial issue of the
"interwovenness" of liability and damages, see id., nor even the
(somewhat more analogous) interwovenness of violation and
causation, see, e.g., Bohack Corp. v. Iowa Beef Processors, Inc.,
715 F.2d 703, 709 (2d Cir. 1983) (affirming district court's order
of full retrial on Robinson-Patman Act claims after first jury
found that defendant violated the Act but hung on whether violation
caused plaintiff's injury). Rather, the problem is the purported
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interwovenness of two distinct substantive issues -- i.e., the
hotel and the cash.
In ordering a retrial on both of those issues, the
district court departed from Gasoline Products Co. v. Champlin
Refining Co., 283 U.S. 494, the very case that established the
constitutional propriety of partial retrials. That case
demonstrates that separate claims involving a shared set of facts
can fairly be, and should be, separated on retrial. In Gasoline
Products, the plaintiff's claim alleged breach of a license
contract, and the defendant's counterclaim alleged that the license
contract was executed in consideration for separate oral and
written contracts that the plaintiff had breached. Id. at 495-96.
While the Supreme Court held that liability and damages on the
counterclaim were too "interwoven" to retry separately, id. at 500,
it did not so hold with regard to the relationship between the
claim and counterclaim, even though a retrial on the counterclaim
would likely have included factual allegations relating to the
license contract.
Similarly, in Drumgold's case, the first jury's answers
to the special verdict questions show that the first jury was able
to separate the two "violation" issues even though they involved a
shared set of facts. In other words, while it may have risked
confusion to ask the second jury to evaluate causation on the money
question without also evaluating violation on the money question,
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there is no indication that a retrial jury would have been confused
if it were asked to evaluate the entire money question without
being allowed to reopen the hotel disclosure issue. The presence
of an overlapping factual background to distinct issues is not
enough to overcome the Seventh Amendment and retry an issue already
determined by a jury.
If necessary in order to fairly present Drumgold's case,
evidence as to the circumstances under which Callahan gave cash to
Evans, including some evidence of the housing, could have been
admitted at the second trial without having to reopen the hotel
violation issue. The jury could have been instructed that Callahan
had not withheld evidence about the housing and had not violated
any rights in that regard, and that that issue was not open; any
hotel evidence was limited to providing background. Juries are
often asked to accept evidence for one purpose but not another, see
Fed. R. Evid. 105; United States v. Tse, 375 F.3d 148, 157-58 (1st
Cir. 2004), and we presume that juries will follow the instructions
that the district court gives them, United States v. Griffin, 524
F.3d 71, 78 (1st Cir. 2008). Here, the district court even
recognized this possibility, initially stating that the second
trial could "cover the entire story [of Evans and Callahan], but
the only question that that jury would be asked is about the
money." Indeed, the judge followed an almost identical course with
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regard to the use in the second trial of evidence about Tracie
Peaks and Mary Alexander.
The trial judge also could have avoided jury confusion by
limiting the introduction in the second trial of certain evidence
specifically pertaining to the hotel, on the ground that, given a
retrial of limited scope, such evidence's probative value was
substantially outweighed by the risk of confusing or misleading the
jury into considering questions not before it. See Fed. R. Evid.
403.
The district court's order on the scope of the retrial
does not seriously consider these possibilities, nor explain the
relevant distinctions between the violation and causation
questions, nor point to evidence in the record supporting the
proposition that retrying both the hotel and money issues in their
entirety was necessary to prevent jury confusion. The order
explains why a causation-only retrial would be unworkable, but it
fails to explain why that means that the hotel-violation question
should be reopened. The court merely states that "all aspects of
Ricky Evans's portion of this case would be involved" in a retrial
because of the ambiguity of the first jury's finding of
"substantial amounts" of money. The order does not explain why
this situation would make the hotel issue inextricable from the
money issue. See Crane, 731 F.2d at 1050 ("The memorandum opinion
of the district judge . . . casts little light on why a retrial of
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the damages issue was thought to be necessary."). This was not
merely, as the majority suggests, the lack of an "extensive
elaboration"; it was a failure to justify the basic choice at the
heart of the district court's decision, a choice which I think
cannot be justified.
This outcome constitutes an abuse of discretion. In Winn
v. Lafayette Town House, 839 F.2d 835, the appellate court reversed
the district court's grant of a full retrial on both liability and
damages because the district court confused the relationship
between comparative fault (a liability issue) and equitable
reduction (a damages issue) in a case under a state comparative
negligence statute. Id. at 836-37. In Crane, Judge Friendly
reversed the district court's grant of a new trial on both
liability and damages because the court had not shown an adequate
basis in the record for its determination that the jury's verdict
on damages was tainted by an error she correctly discerned in the
liability verdict. 731 F.2d at 1049-51. Likewise, in this case,
the district court abused its discretion by failing to provide a
reasoned basis for the legal distinctions underlying its ruling on
the scope of the retrial.
As Judge Friendly cogently noted,
[S]omething more is required to upset a
verdict than the conclusory language . . .
used by the district judge. While we must
guard against usurping the trial court's
prerogative with respect to seriously
erroneous jury verdicts, we must be equally
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diligent in protecting the jury's function.
Direction of a new trial on an issue
determined by a jury without the articulation
of a sufficient basis for such action effects
. . . "a denigration of the jury system[,] and
to the extent that new trials are granted the
judge takes over, if [s]he does not usurp, the
prime function of the jury as the trier of the
facts."
Id. at 1051 (quoting Lind v. Schenley Indus., Inc., 278 F.2d 79, 90
(3d Cir. 1960)). In light of the fact that the first jury was able
to separate the hotel and money violation questions, the district
court's explanation for why the second jury would be unable to do
so was inadequate to support the decision to set aside a legitimate
jury verdict.
The second trial should have been limited to the money
issue only. Since Callahan's provision of $20 to Evans was not
material, the second jury's verdict on the money issue cannot
support a finding of liability for Callahan. He was entitled to
judgment as a matter of law.
III.
I dissent from the majority's decision to remand this
case for a third trial. I would reverse the district court's
denial of Callahan's renewed motion for judgment as a matter of law
and its denial of qualified immunity, and order entry of judgment
for Callahan.
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