                          UNITED STATES COURT OF APPEALS
                                      Tenth Circuit
                           Byron White United States Courthouse
                                    1823 Stout Street
                                 Denver, Colorado 80294
                                     (303) 844-3157
Patrick J. Fisher, Jr.                                                       Elisabeth A. Shumaker
       Clerk                                                                   Chief Deputy Clerk

                                         February 10, 1999

       TO: ALL RECIPIENTS OF THE OPINION

       RE: 97-1427, Morgan v. Gertz
           Filed on February 8, 1999, by Judge Briscoe.

               The slip opinion filed February 8, 1999, contains typographical errors.

             A corrected opinion is attached for your convenience. Please discard the
       opinion issued previously.




                                                     Very truly yours,
                                                     Patrick Fisher, Clerk


                                                     Trish Lane
                                                     Deputy Clerk
                                                                       F I L E D
                                                                United States Court of Appeals
                                                                        Tenth Circuit

                                                                        FEB 8 1999
                                   PUBLISH

                  UNITED STATES COURT OF APPEALS                     PATRICK FISHER
                                                                              Clerk
                               TENTH CIRCUIT



 ALBERT LANE MORGAN,

       Plaintiff-Appellant,

            v.                                         No. 97-1427

 AMY GERTZ; KAREN WORDEN,

       Defendants-Appellees.




                   Appeal from United States District Court
                         for the District of Colorado
                             (D.C. No. 95-Z-1344)


John M. Case, of John Case, P.C., Englewood, Colorado, for the appellant.

Brad D. Bailey, Clear Creek County Attorney, Georgetown, Colorado, and David
R. Brougham, of Hall & Evans, L.L.C., Denver, Colorado, for the appellees.


Before EBEL, BRISCOE, and LUCERO, Circuit Judges.


BRISCOE, Circuit Judge.



      Plaintiff Albert Morgan appeals the district court’s entry of summary
judgment in favor of defendants in this 42 U.S.C. § 1983 action. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

                                           I.

      This § 1983 action arose out of the investigation and subsequent criminal

prosecution of Morgan for sexual assault of his minor stepdaughter. On April 12,

1993, the natural father of a seven-year-old girl phoned Amy Gertz, a case worker

with the Department of Social Services in Clear Creek, Colorado, to report

possible sexual abuse of the girl by Morgan, the girl’s stepfather. Gertz and

Karen Worden, a police detective, interviewed the girl on April 13 and the

conversation was recorded. During the interview, the girl gave no indication she

had been the victim of sexual abuse. As a result, Gertz closed the case, placed

the interview tape in her desk, and advised the natural father to take the girl to a

therapist.

      Approximately six and one-half weeks later, the natural father contacted

Worden and explained the girl had disclosed specific details of sexual abuse.

Worden notified Gertz and they arranged a second interview of the girl on June 1.

Prior to the interview, Gertz reviewed her notes from the earlier interview. After

the girl arrived for the second interview, Gertz searched for a blank tape but was

unable to locate one. She believed the “distraught” girl needed to be immediately

interviewed and decided to tape over the recording of the earlier interview. In the


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second interview, the girl alleged she had been sexually assaulted by her

stepfather on two occasions during the previous Christmas season. During

subsequent examinations by various doctors, the girl elaborated on her allegations

of sexual abuse and she underwent physical examinations that revealed injuries

consistent with sexual abuse. Worden prepared an affidavit requesting issuance

of an arrest warrant for Morgan.

      Based on the physical evidence and the girl’s statements in the second

interview, the county prosecutor charged Morgan with aggravated incest and

sexual assault on a child by a person in a position of trust. The prosecutor was

fully aware the girl had denied sexual abuse in her first interview, but that did not

deter him from charging Morgan.

      On a number of occasions during pretrial discovery in the criminal case, the

prosecutor disclosed that the girl had denied any sexual abuse during her first

interview. In addition, the prosecutor presented the tape of the second interview

which, unknown to him, contained remnants of the first interview. After

concluding the prosecutor’s summary of the first interview was an inadequate

substitution for the actual tape, Morgan filed a motion to dismiss all charges

based on intentional destruction of exculpatory evidence. At a subsequent

motions hearing, Gertz and Worden testified as to the girl’s statements at the first

interview. At the conclusion of the hearing, the court denied Morgan’s motion to


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dismiss. The court sanctioned the prosecution, however, by barring it from

calling Gertz or Worden as witnesses in its case-in-chief.

      The criminal trial commenced on March 28, 1994, and Morgan called Gertz

and Worden as witnesses. Both were subjected to intense direct examination

regarding the handling of the first interview tape. At the close of all evidence,

Morgan moved for judgment of acquittal based in part on intentional destruction

of exculpatory evidence. The court reserved ruling on the motion pending the

jury verdict. The jury returned a guilty verdict on April 4, but the court did not

enter a judgment of conviction. On April 21, after concluding the prosecution

had contravened the dictates of   Brady v. Maryland , 373 U.S. 83 (1963), the court

entered a judgment of acquittal, noting:

      Caseworker Gertz and Detective Worden taped over the first
      interview, knowing at the time that that evidence which they were
      altering was exculpatory. The Court further finds that at the Motions
      Hearing on December 15, 1993, both Detective Worden and
      Caseworker Gertz gave testimony to the Court which was false and
      inaccurate concerning what happened during the initial interview. . . .
             ....
             The Court finds that the government misconduct in this case
      was willful and egregious. . . .
             It is impossible to reconstruct what happened during the
      crucial initial interview. In the absence of such evidence, the
      defendant cannot have a fair trial.

App. I at 9-10.

      Morgan filed this action in May 1995, seeking damages for the mishandling

of exculpatory evidence prior to trial. Both sides moved for summary judgment.

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Morgan argued the doctrines of res judicata and collateral estoppel barred

defendants from relitigating the constitutional violations found by the state court.

Defendants maintain Morgan’s constitutional rights were not violated and, in any

event, defendants are shielded from liability by qualified immunity. The district

court denied Morgan’s motion for summary judgment in a minute order. At a

subsequent hearing, the court granted defendants’ motion in part after concluding

entry of the judgment of acquittal provided Morgan all the remedy to which he

was entitled. The court then granted the remainder of defendants’ motion in a

written opinion, concluding Morgan had demonstrated no “evil intent” on the part

of defendants, thus negating any entitlement to punitive damages.

                                             II.

       This court reviews a grant of summary judgment de novo, applying the

same legal standard used by the district court.    Sundance Assocs., Inc. v. Reno   ,

139 F.3d 804, 807 (10th Cir. 1998). Summary judgment is appropriate “if the

pleadings, depositions, answers to interrogatories, and admissions on file,

together with the affidavits, if any, show that there is no genuine issue as to any

material fact and that the moving party is entitled to a judgment as a matter of

law.” Fed. R. Civ. P. 56(c). “When applying this standard, we examine the

factual record and reasonable inferences therefrom in the light most favorable to

the party opposing summary judgment. If there is no genuine issue of material


                                            -5-
fact in dispute, then we next determine if the substantive law was correctly

applied by the district court.”   Wolf v. Prudential Ins. Co. , 50 F.3d 793, 796 (10th

Cir. 1995) (internal citation and quotations omitted).

                                           III.

       The issue presented is whether Morgan has a right to recover any damages,

nominal or otherwise, pursuant to 42 U.S.C. § 1983 for the alleged intentional

destruction of exculpatory evidence before his criminal trial. Although the parties

argued at length in their appellate briefs regarding the question of whether

defendants violated Brady v. Maryland in failing to preserve exculpatory

evidence, the real question is whether Morgan’s constitutional rights were

violated as a result of defendants’ actions.

       Before addressing the issue on its merits, we note two preliminary points.

First, Brady v. Maryland , which focuses on the duty to   disclose exculpatory

evidence, was not implicated in the state court proceedings. The state did not fail

to disclose the fact that the girl did not inculpate Morgan in the first interview;

the state provided Morgan with a written summary of the first interview. The

case of Arizona v. Youngblood , 488 U.S. 51 (1988), which sets forth standards

governing the duty to preserve exculpatory evidence, is controlling here. Second,

the state court’s determination in Morgan’s criminal trial that defendants

committed constitutional violations is not binding in this civil action as there is


                                           -6-
no privity between the parties.    See Kinslow v. Ratzlaff , 158 F.3d 1104, 1105-07

& n.3 (10th Cir. 1998); Maryland Cas. Co. v. Messina , 874 P.2d 1058, 1061

(Colo. 1994) (en banc) (describing elements of collateral estoppel under Colorado

law).

        “Section 1983 is not itself a source of substantive rights, but merely

provides a method for vindicating federal rights elsewhere conferred. The first

step in any such claim is to identify the specific constitutional right allegedly

infringed.” Albright v. Oliver , 510 U.S. 266, 271 (1994) (citations and internal

quotations omitted). Morgan alleges defendants violated his Fourteenth

Amendment substantive due process rights by destroying exculpatory evidence.

In recent years, the Supreme Court has consistently emphasized its reluctance to

broaden the concept of substantive due process out of a concern that “the

guideposts for responsible decisionmaking [by potential defendants] in this

unchartered area are scarce and open-ended.”     Id. at 271-72 (quoting Collins v.

Harker Heights , 503 U.S. 115, 125 (1992)).

        The duties to disclose and preserve impeachment/exculpatory evidence are

grounded in the due process right to a   fair trial . Kyles v. Whitley , 514 U.S. 419,

434 (1995); United States v. Bagley , 473 U.S. 667, 678 (1985);     United States v.

Agurs , 427 U.S. 97, 104 (1976);    Brady , 373 U.S. at 87. Thus, the withholding or

destruction of evidence violates a criminal defendant’s constitutional rights only


                                           -7-
if, as a result of the withholding or destruction of evidence, the criminal

defendant is denied a fair trial.   Bagley , 473 U.S. at 678. The question here is

whether defendants’ actions deprived Morgan of his right to a fair trial.

       Cases involving § 1983 actions brought by individuals alleging violations

of constitutional rights arising out of lack of disclosure or preservation of

exculpatory evidence in criminal prosecutions fall into two distinct categories. In

the first group of cases, all criminal charges were dismissed prior to trial. Under

such circumstances, courts have held universally that the right to a fair trial is not

implicated and, therefore, no cause of action exists under § 1983.       See Rogala v.

District of Columbia , 161 F.3d 44, 55-56 (D.C. Cir. 1998) (per curiam);      Taylor v.

Waters , 81 F.3d 429, 435-36 & n.5 (4th Cir. 1996);      McCune v. City of Grand

Rapids , 842 F.2d 903, 907 (6th Cir. 1988);     Nygren v. Predovich , 637 F. Supp.

1083, 1087 (D. Colo. 1986). In the second group of cases, convictions were

obtained and affirmed on direct appeal, but were subsequently overturned by way

of collateral proceedings. In these cases, courts have permitted the exonerated

defendant to pursue § 1983 claims based on the denial of a fair trial.     See

McMillian v. Johnson , 88 F.3d 1554, 1566-69 & n.12 (11th Cir. 1996);        McDonald

v. Illinois , 557 F.2d 596, 603 (7th Cir. 1977).

       The present case fits within the first group of cases. Although the jury

returned a guilty verdict against Morgan, a judgment of conviction was never


                                            -8-
entered. A conviction is effective only upon entry of judgment by the trial court.

Hellman v. Rhodes , 741 P.2d 1258, 1259 (Colo. 1987) (en banc) (citing Colo. R.

Crim. P. 32(c)).

       Pursuant to Crim. P. 32(c), a judgment of conviction is composed of
       a recital of the results of several procedural steps, not all of which
       necessarily occur simultaneously. It is not until the last step has been
       completed, whether it be sentencing or the imposition of costs, and a
       judgment has been entered reciting “the plea, the verdict or findings,
       the sentence, the finding of the amount of presentence confinement
       and costs, if any are assessed against the defendant,” that the
       [conviction becomes final].

Id. at 1259-60.   1
                      The only judgment the court entered was a judgment of acquittal.

Regardless of any misconduct by government agents before or during trial, a

defendant who is acquitted cannot be said to have been deprived of the right to a

fair trial.

       The judgment of the district court is AFFIRMED.




       1
        The same is true under the federal rules. See Howard v. United States,
135 F.3d 506, 509 (7th Cir. 1998) (citing Fed. R. Crim. P. 32(d)(1)).

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