     Case: 10-30737     Document: 00511714361         Page: 1     Date Filed: 01/04/2012




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                                            FILED
                                                                          January 4, 2012

                                     No. 10-30737                          Lyle W. Cayce
                                   Summary Calendar                             Clerk



TILAL BABIKER,

                                                  Plaintiff - Appellant
v.

CITY OF NEW ORLEANS; ARMANDO ASSARO,

                                                  Defendants - Appellees



                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                                 2:08-CV-00767


Before JOLLY, SMITH, and GRAVES, Circuit Judges.
PER CURIAM:*
                 FACTS AND PROCEDURAL BACKGROUND
        Tilal Babiker initiated this § 1983 action against the City of New Orleans
and Detective Armando Assaro (“Assaro”) (collectively “the defendants”), alleging
that the defendants violated his right to due process and maliciously prosecuted
him for first degree murder and attempted first degree murder in connection




        *
         Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
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                                      No. 10-30737

with a July 2005 shooting that took place at Wagner’s Meat Market (“Wagner’s”)
in New Orleans, Louisiana.
       In July 2005, Assaro responded to a 9-1-1 call at Wagner’s and was
assigned as lead detective on the case. Over the course of his investigation,
Assaro interviewed several witnesses that gave descriptions of a man fleeing
from Wagner’s moments after the shooting.               All but one of the witnesses
described the fleeing man as being approximately six-feet tall and 190-200
pounds.1 One of the witnesses told Assaro that the man fleeing from Wagner’s
was known as “Mohammed.” Assaro then contacted the Federal Bureau of
Investigation (“F.B.I.”) who identified “Mohammed” as Babiker.
       Based upon his investigation, Assaro obtained an arrest warrant for
Babiker. Assaro subsequently arrested Babiker and charged him with first
degree murder and attempted first degree murder. Babiker remained in police
custody for nearly two years before the charges against him were dropped.
       Upon being released from police custody, Babiker filed this suit against the
defendants, alleging that the defendants violated his due process rights by
procuring and using false testimony to effect the arrest of Babiker. A trial was
held on July 6 and 7, 2010. After hearing the testimony, the jury returned a
verdict for the defendants and against Babiker. The jury concluded that it did
not find, by a preponderance of the evidence, “that Assaro violated Babiker's
constitutional right to due process by fabricating evidence, withholding
exculpatory evidence, procuring false testimony or knowingly using false
testimony . . . .” The jury also concluded “that Detective Assaro [did not]
maliciously prosecute[] Babiker for the robbery/homicide that occurred at
Wagner's Meat Market.” Aggrieved by the jury's findings, Babiker appeals.



       1
        One witness, Carolyn Clemons, described the shooter as being approximately five-feet
three-inches tall and 140 pounds.

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                                    No. 10-30737

         On appeal, Babiker challenges the jury’s verdict, alleging (1) that it erred
in failing to find, by a preponderance of the evidence, that Assaro violated
Babiker’s constitutional right to due process by procuring false testimony or
knowingly using false testimony from Rouzan to charge Babiker with first
degree murder and attempted first degree murder; and (2) that it erred in failing
to find, by a preponderance of the evidence, that Assaro maliciously prosecuted
Babiker for first degree murder and attempted first degree murder.
                             STANDARD OF REVIEW
         “A jury verdict must be upheld unless ‘there is no legally sufficient
evidentiary basis for a reasonable jury to find’ as it did.” Vadie v. Mississippi
State University, 218 F.3d 365 (5th Cir. 2000) (quoting Fed.R.Civ.P. 50(a)(1)).
“We test jury verdicts for sufficiency of the evidence under the standards set
forth in Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir.1969) (en banc),
overruled on other grounds, Gautreaux v. Scurlock Marine, Inc., 107 F.3d 331
(5th Cir.1997) (en banc), viewing all of the evidence and drawing all reasonable
inferences in the light most favorable to the verdict.” Scott v. University of
Mississippi, 148 F.3d 493, 504 (5th Cir.1998) (citing Rhodes v. Guiberson Oil
Tools, 75 F.3d 989, 993 (5th Cir.1996) (en banc) (quoting Boeing, 411 F.2d at
374)).
                                   DISCUSSION
         In this case, Babiker challenges the jury’s verdict arguing that the
evidence was insufficient to sustain a verdict for the defendants in this case.
         In reviewing challenges to a jury’s verdict, it is well established that the
verdict must be upheld unless appellant can show that there is no substantial
evidence to support it. Foradori v. Harris, 523 F.3d 477, 485 (5th Cir. 2008).
“[T]his court’s standard for reviewing a jury verdict is whether the state of the
proof is such that reasonable and impartial minds could reach the conclusion


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                                  No. 10-30737

the jury expressed in its verdict.” American Home Ins. Co. v. United Space
Alliance, L.L.C., 378 F.3d 482, 487 (5th Cir. 2004). In applying this standard,
we have explained:
      [a] jury may draw reasonable inferences from the evidence, and
      those inferences may constitute sufficient proof to support a verdict.
      On appeal we are bound to view the evidence and all reasonable
      inferences in the light most favorable to the jury's determination.
      Even though we might have reached a different conclusion if we
      had been the trier of fact, we are not free to re-weigh the evidence
      or to re-evaluate credibility of witnesses. We must not substitute
      for the jury's reasonable factual inferences other inferences that we
      may regard as more reasonable.
Foradori, 523 F.3d at 485 (quoting Int’l Ins. Co. v. RSR Corp., 426 F.3d 281, 297
(5th Cir. 2005)). Therefore, the jury’s verdict must stand unless there was no
evidence which, if believed, would authorize the jury's conclusions. Foradori,
523 F.3d at 485.
      Here, while some facts were in dispute, it cannot be said that there was
no evidence which, if believed, would authorize the jury’s conclusions. Id. The
jury heard testimony from: (1) Assaro that he interviewed a number of
witnesses during his investigation; (2) Ms. Davis, who witnessed a male
individual running from Wagner’s that was approximately six-feet tall and 200
pounds; (3) Rouzan, who witnessed a male fleeing Wagner’s carrying a gun in
his left hand; (4) Rouzan, who later identified Babiker as the individual fleeing
Wagner’s; (5) Clemmons, who described the shooter as being five-feet three-
inches tall and 140 pounds; (6) Amin Rahman, who testified that Babiker was
working with him over two miles away at the time the shooting occurred; (7)
Rahman, who stated that Babiker never left the store on the morning of the
shooting; and (8) Babiker, who testified that he had nothing to do with the
shooting that took place at Wagner’s in July 2005.



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                                No. 10-30737

         Clearly, the jury had evidence supporting both the plaintiff’s and
defendants’ version of the shooting and investigation. Babiker merely argues
that the jury improperly considered Rouzan’s testimony over Clemmons’s. This,
however, is insufficient to meet the requirement that Babiker must show that
there is no substantial evidence that would support the jury’s verdict. Id. The
jury in this case was presented with the testimony and, as the law provides,
determined the weight and credibility of the testimony offered. Reeves v.
Sanderson Plumbing Products, Inc., 530 U.S. 133, 150 (2000) (Credibility
determinations and the weighing of the evidence are jury functions).
                               CONCLUSION
      Based on the foregoing, we AFFIRM the jury’s verdict.




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