     12-2479-cv
     Marshall v. Randall

1                          UNITED STATES COURT OF APPEALS

2                             FOR THE SECOND CIRCUIT

3                                 August Term 2012

4              (Argued: March 8, 2013          Decided: June 12, 2013)

 5                          Docket No. 12-2479-cv
 6   -----------------------------------------------------x
 7   JOSHUA MARSHALL,
 8
 9         Plaintiff-Appellee,
10
11                               -- v. –-
12
13   P.O. SALIM RANDALL, Shield No. 15331, Individually and in
14   His Official Capacity, P.O. MICHAEL BURBRIDGE, Shield No.
15   15488, Individually and in His Official Capacity,
16
17         Defendants-Appellants,
18
19   THE CITY OF NEW YORK, JOHN DOE, P.O.’s #1-10 Individually
20   and in Their Official Capacities, (the name John Doe
21   being fictitious, as the true names are presently
22   unknown),
23
24         Defendants.
25
26   -----------------------------------------------------x
27   B e f o r e :   WALKER, LYNCH, and CARNEY, Circuit Judges.

28         Defendants-Appellants Salim Randall and Michael Burbridge

29   appeal from the 2012 judgment of liability of the United States

30   District Court for the Eastern District of New York (Weinstein,

31   Judge).   After a jury trial, Defendants-Appellants were found

32   liable for false arrest, malicious prosecution, and violation of

33   Joshua Marshall’s right to a fair trial.           They were ordered to pay

34   damages of $95,000 each.     We hold that there was no error in the

35   district court’s trial rulings.        AFFIRMED.
 1                                   JON L. NORINSBERG (Gerald M. Cohen,
 2                                   Joshua P. Fitch, Cohen & Fitch LLP,
 3                                   on the brief), New York, NY, for
 4                                   Plaintiff-Appellee.
 5
 6                                   AVSHALOM YOTAM (Francis F. Caputo,
 7                                   Karen M. Griffin on the brief), of
 8                                   counsel to Michael A. Cardozo,
 9                                   Corporation Counsel of the City of
10                                   New York, New York, NY, for
11                                   Defendants-Appellants.
12
13
14   JOHN M. WALKER, JR., Circuit Judge:

15        Defendants-Appellants Salim Randall and Michael Burbridge

16   appeal from the 2012 judgment of liability of the United States

17   District Court for the Eastern District of New York (Weinstein,

18   Judge).   After a jury trial, Defendants-Appellants were found

19   liable for false arrest, malicious prosecution, and violation of

20   Joshua Marshall’s right to a fair trial.   They were ordered to pay

21   damages of $95,000 each.   We hold that there was no error in the

22   district court’s trial rulings and affirm the judgment.

23                                BACKGROUND

24        We assume the parties’ familiarity with the underlying facts

25   and procedural history and recite only those details relevant to

26   this appeal.

27        On May 15, 2008, Marshall was arrested in Brooklyn by Police

28   Officers Randall, Burbridge, and Kieran Fox (who is not a defendant

29   in this case).   Marshall was walking down a sidewalk with another

30   man, Demetrios Meade, when they were approached by the officers.

31   As the officers drew near, one of the men threw away a gun, which

                                       2
1    landed in the street.     The officers arrested Marshall on the charge

2    of possessing a loaded firearm.    Their statements to the local

3    district attorney resulted in a criminal complaint against

4    Marshall, and their testimony to a grand jury led to Marshall’s

5    indictment.   Marshall was released in September 2008 after four

6    months in jail.   Approximately eight months after his release from

7    jail, the judge dismissed Marshall’s case on speedy trial grounds.

8         Marshall then sued Randall and Burbridge under 42 U.S.C.

9    § 1983 for false arrest, malicious prosecution, and denial of his

10   constitutional right to a fair trial.    The essence of Marshall’s

11   claim was that the officers lied when they said they had seen

12   Marshall throw the gun.    At trial, Marshall called the two officers

13   as part of his direct case and cross-examined them as hostile

14   witnesses.    Marshall’s strategy at trial was to attack the

15   officers’ credibility based on inconsistencies in their accounts of

16   the events on the night of the arrest.

17        The initial police complaint and arrest report, filled out by

18   Randall, indicated only that Marshall “was found to be in

19   possession of a loaded firearm.”    J.A. 85 (Police Compl.).   The

20   criminal complaint filed by the Kings County District Attorney’s

21   office similarly stated that Randall “observed the defendant in

22   possession of a loaded .38 Caliber Smith and Wesson revolver.”       Id.

23   at 104 (Crim. Ct. Compl.).    Randall testified to the grand jury

24   that Marshall “pulled a firearm out of his waist[band] and tossed


                                         3
1    it into the street.”    Id. at 129-30 (Grand Jury Tr.).   At his

2    deposition, Randall testified that he saw Marshall in physical

3    possession of the pistol “[w]hen he reached into his pants and

4    pulled out an object and threw it to the ground.”     Id. at 571 (Dep.

5    Tr.).    At trial, however, Randall admitted that he never saw the

6    gun in Marshall’s “actual physical possession,” id. at 1001 (Trial

7    Tr.), but that he “saw the motion, . . . [and] heard the clink when

8    it hit the ground,” id. at 1003 (Trial Tr.).

9            The evidence against Burbridge was similar.   The criminal

10   complaint stated that Burbridge “recovered [the] revolver from the

11   ground where [Burbridge] observed the defendant throw it.”     Id. at

12   104 (Crim. Ct. Compl.).    Burbridge testified to the grand jury that

13   he “observed Mr. Marshall remove what appeared to be a silver

14   firearm from his waist[band] and throw it under a vehicle.”        Id. at

15   123-24 (Grand Jury Tr.).    At his pre-trial deposition, Burbridge

16   testified that he could not remember from which part of his

17   waistband Marshall pulled the gun, but at trial he testified that

18   Marshall pulled the gun from the center of his waistband.

19   Burbridge also gave conflicting deposition testimony about whether

20   he saw Marshall make a furtive movement before his decision to

21   approach Marshall and Meade, or whether that decision had been

22   based entirely on his recognition of Marshall from a NYPD database

23   of police and arrest reports.




                                         4
1         The jury found Randall and Burbridge liable on all three

2    counts and awarded $95,000 in compensatory and punitive damages

3    against each officer.   This appeal followed.

4                                 DISCUSSION

5         Randall and Burbridge challenge three elements of the district

6    court’s trial rulings: (1) the use of their grand jury testimony as

7    violative of the rule in Rehberg v. Paulk, 132 S. Ct. 1497 (2012);

8    (2) the lack of a jury instruction disclosing that Marshall’s

9    criminal case was dismissed on speedy trial grounds; and (3) the

10   exclusion from trial of evidence that Burbridge stopped Marshall in

11   part because he recognized Marshall from a review of NYPD arrest

12   reports.

13     1. Use of Grand Jury Testimony

14        Citing Rehberg, Randall and Burbridge argue that their grand

15   jury testimony, admitted for impeachment purposes, was improperly

16   used by Marshall as a basis for liability.      Marshall responds that

17   the use of grand jury testimony for impeachment did not violate

18   Rehberg’s holding that a grand jury witness has immunity from a

19   malicious prosecution action based on the witness’s grand jury

20   testimony.   We hold that the grand jury testimony was properly

21   admitted for impeachment purposes and that the manner in which it

22   was used at trial did not contravene the rule in Rehberg.

23        We review the district court’s evidentiary rulings for abuse

24   of discretion and “will reverse only if an erroneous ruling


                                        5
1    affected a party’s substantial rights.”   Marcic v. Reinauer Transp.

2    Cos., 397 F.3d 120, 124 (2d Cir. 2005).   In general, a party is

3    entitled to a new trial if the district court committed errors that

4    “were a clear abuse of discretion that were clearly prejudicial to

5    the outcome of the trial,” where prejudice is measured “by

6    assessing the error in light of the record as a whole.”     Id.

7    (quotation marks omitted).   A district court abuses its discretion

8    if it “base[s] its ruling on an erroneous view of the law or on a

9    clearly erroneous assessment of the evidence.”     In re Sims, 534

10   F.3d 117, 132 (2d Cir. 2008) (quotation marks omitted).

11        In Rehberg, the chief investigator for a local district

12   attorney was sued in a § 1983 action following Rehberg’s indictment

13   based on the investigator’s grand jury testimony.     The Supreme

14   Court held that “a grand jury witness has absolute immunity from

15   any § 1983 claim based on the witness’ testimony.”     Rehberg, 132 S.

16   Ct. at 1506.   It reasoned that the justifications for absolute

17   immunity for trial witnesses also applied to grand jury witnesses:

18   “In both contexts, a witness’ fear of retaliatory litigation may

19   deprive the tribunal of critical evidence.     And in neither context

20   is the deterrent of potential civil liability needed to prevent

21   perjurious testimony.”   Id. at 1505; see also Briscoe v. LaHue, 460

22   U.S. 325 (1983) (establishing trial witness immunity).     The Court

23   also noted that the “subversion of grand jury secrecy” was an

24   additional supporting factor.   Id. at 1509.


                                       6
1         This case asks us to consider what the Supreme Court meant by

2    “any § 1983 claim based on the witness’ testimony.”     Id. at 1506

3    (emphasis added).   In Rehberg, the plaintiff’s assertion of § 1983

4    malicious prosecution liability was predicated exclusively on the

5    allegations that the investigator lied to the grand jury.    In this

6    case, Marshall presented evidence of grand jury testimony, along

7    with (among other things) the police report, the officers’

8    statements to the district attorney as reflected in the criminal

9    complaint, and the inconsistencies in deposition and trial

10   testimony.   We must determine whether the use of the officers’

11   grand jury testimony for impeachment purposes and the references to

12   the grand jury testimony during opening and closing statements in

13   this § 1983 action nonetheless caused the action to be “based on”

14   the witness’s grand jury testimony.

15        Turning first to the use of grand jury testimony for

16   impeachment, we agree with the district court that such use does

17   not violate Rehberg.   Evidence that is inadmissible as direct proof

18   is frequently permitted for impeachment purposes.     See, e.g.,

19   United States v. Griffith, 385 F.3d 124, 126-27 (2d Cir. 2004)

20   (noting that there is a “distinction between using evidence to

21   prove substantive guilt and using evidence to impeach” and

22   collecting cases); see also Harris v. New York, 401 U.S. 222, 225-

23   26 (1971) (holding that a statement made by a defendant to police

24   in violation of Miranda is inadmissible as direct evidence but


                                       7
1    admissible for impeachment purposes).    And juries are often called

2    upon to distinguish between proper and improper purposes of

3    testimony.

4            When Marshall questioned the officers as hostile witnesses,

5    their grand jury testimony was admitted only to attack their

6    credibility.    The district court was explicit in its jury

7    instruction that this testimony could not be a basis for liability:

8    “A defendant cannot be held liable for what he said to the grand

9    jury.    He may be held liable for what he said to the prosecutor if

10   his statement was not in preparation for his grand jury testimony.”

11   J.A. 1218 (Trial Tr.).    We have no reason to believe the jury did

12   not follow this instruction.    See United States v. Downing, 297

13   F.3d 52, 59 (2d Cir. 2002) (“Absent evidence to the contrary, we

14   must presume that juries understand and abide by a district court’s

15   limiting instructions.”) (citing Zafiro v. United States, 506 U.S.

16   534, 540-41 (1993)).    Therefore, the use of grand jury testimony to

17   impeach the officers did not violate Rehberg and is not grounds for

18   reversal.1


     1
       We are mindful of the potential for jury confusion in a case such
     as this, in which the underlying factual subject of the grand jury
     testimony used to impeach the defendants - which could not be used
     as a direct basis for suit under Rehberg - is the same as the
     factual subject that underlies the suit and the previous
     prosecution. In this case, that would be whether the police
     officers actually saw Marshall in possession of a gun. Plainly,
     there would be no such potential for confusion had the officers
     given conflicting statements as to a collateral matter, such as how
     brightly the street was lit on the night of the arrest. We believe
     that the risk of jury confusion was adequately reduced, however, by
                                       8
1         Marshall’s use of this testimony was not limited to cross-

2    examining the witnesses, however.       In both his opening and

3    summation, Marshall made references to the grand jury testimony

4    that were not self-limiting as purely for impeachment purposes.

5    These references in the summation included the following:

 6             Now, if he never saw this object in the
 7             physical possession of Mr. Marshall, why did
 8             he swear under oath to a grand jury that he
 9             did see it? I mean, those two stories aren’t
10             true; either you saw it, or you didn’t.
11
12             . . .
13
14             What he told that grand jury is a lie.
15
16             . . .
17
18             When [Burbridge] appeared before the grand
19             jury, one story. When he appeared in the
20             civil lawsuit, another story.
21
22             . . .
23
24             They duped it and put it over on the grand
25             jury with these false stories.
26
27             . . .
28
29             You can send a message through your verdict .
30             . . to any other police officer out there that
31             thinks it’s okay to get in front of a grand
32             jury and lie.
33
34   J.A. 1206, 1207, 1210, 1211 (Trial Tr.).

35        The defendants argue that these comments demonstrate that

36   plaintiff’s § 1983 claim for malicious prosecution was “based on


     the district court’s instructions and the substantial amount of
     evidence supporting Marshall’s direct case independent of the grand
     jury testimony.
                                         9
1   the witness’ testimony [before the grand jury],” Rehberg, 132 S.

2   Ct. at 1506.   This argument is not without some force.   Although we

3   find the question to be close, on balance, we believe that the

4   district court’s limiting instructions – to the effect that the

5   jury could not base liability on the grand jury testimony -

6   sufficiently alleviated any prejudice to the point that a new trial

7   is not required.2

8        As we noted earlier, after the closing statements, the

9   district court instructed the jury that a “defendant cannot be held

    2
      We note that while the jury was deliberating, Marshall’s counsel
    ascribed two purposes for his references in summation to the
    defendants’ grand jury testimony: “to overcome the presumption [of
    probable cause created by the indictment], one, and two, to address
    the general issues of credibility.” J.A. 1308 (Trial Tr.). In
    Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), we
    stated that
               [w]here there is some indication in the police
               records that, as to a fact crucial to the
               existence of probable cause, the arresting
               officers may have ‘lied in order to secure an
               indictment,’ and ‘a jury could reasonably find
               that the indictment was secured through bad
               faith or perjury,’ the presumption of probable
               cause created by the indictment may be
               overcome.
    Id. at 162 (quoting Boyd v. City of New York, 336 F.3d 72, 77 (2d
    Cir. 2003)).
          The district court suggested that Rehberg might cast doubt on
    the continued vitality of Manganiello, but noted that defense
    counsel had not asked for an instruction limiting the grand jury
    references to credibility during his adversary’s summation but that
    had counsel done so, the district court would have given it, see
    J.A. 1309 (Trial Tr.). When the court opined that it was now too
    late for the instruction, see id., defense counsel did not take
    issue with that view. Marshall and Burbridge recognize this
    tension in their brief on appeal, but do not advance a completed
    argument on this basis, so we do not consider how Rehberg affects
    our holding in Manganiello.
                                     10
1    liable for what he said to the grand jury,” and that “[t]he

2    opening[s] and closings are not evidence.”     Id. at 1218, 1217

3    (Trial Tr.).     And, after the jury had begun its deliberations, the

4    district court told the jury:

 5             In going through the transcript this morning,
 6             I noticed that it was suggested that you send
 7             a message. I don’t want you to send any
 8             messages. I just want you to decide the case
 9             in accordance with my instructions[.]
10
11   Id. at 1312 (Trial Tr.).     The jury indicated that it understood the

12   judge’s instruction.     Had the defendants so requested, the jury

13   instructions could have been crafted more specifically to ensure no

14   violation of Rehberg under any party’s interpretation of the case.

15   But no such request was made in time for it to impact the jury’s

16   deliberations.    We believe the instructions given adequately

17   reflected the holding in Rehberg and mitigated the prejudicial

18   impact of the opening and closing statements to the point that a

19   new trial is not warranted.

20     2. Speedy Trial Instruction

21        Randall and Burbridge also argue that the jury should have

22   been instructed that Marshall’s criminal prosecution did not end in

23   an acquittal.    The district court instructed the jury: “There’s no

24   dispute that criminal proceedings were commenced and continued and

25   that they ended in plaintiff’s favor.”    J.A. 1218 (Trial Tr.).     The

26   parties agree that Marshall’s case was dismissed in light of speedy

27   trial concerns, but they disagree about whether the nature of the


                                        11
1    dismissal should have been conveyed to the jury.   We review “a

2    claim of error in the district court’s jury instructions de novo,

3    and will reverse on this basis only if the [appellants] can show

4    that in viewing the charge given as a whole, they were prejudiced

5    by the error.”   Anderson v. Branen, 17 F.3d 552, 556 (2d Cir.

6    1994).

7         The district court’s instruction is not a basis for a new

8    trial.   The malicious prosecution charge provided, in relevant

9    part, as follows:

10              A person is maliciously prosecuted when,
11              first, criminal proceedings are initiated or
12              continued against him by the defendant. Two,
13              the proceedings are terminated in his favor.
14              Three, there was no probable cause for the
15              commencement of the proceeding. And four, the
16              defendant’s actions leading to the initiation
17              of proceeding[s] against the plaintiff were
18              motivated by malice of a defendant.
19
20              There’s no dispute that criminal proceedings
21              were commenced and continued and that they
22              ended in plaintiff’s favor.
23
24   J.A. 1218 (Trial Tr.).   In context, it is evident that the district

25   court’s instruction was meant to remove from the jury’s

26   consideration the second element of the malicious prosecution

27   claim.   Randall and Burbridge do not dispute that Marshall’s

28   criminal case was dismissed on speedy trial grounds or that such a

29   dismissal was in Marshall’s favor.    An underlying acquittal is not

30   a necessary prerequisite for a malicious prosecution charge, and

31   while it is possible that the jury inferred that the case ended in


                                      12
1    an acquittal, the inference that the case was procedurally

2    terminated was equally possible.    All that is necessary is a

3    “favorable termination,” which is what occurred here and what the

4    district court instructed.    See Rogers v. City of Amsterdam, 303

5    F.3d 155, 160 (2d Cir. 2002) (“[U]nder New York law, a dismissal

6    pursuant to New York Criminal Procedure Law § 30.30 - New York’s

7    speedy trial statute - constitutes a favorable termination [for

8    purposes of a malicious prosecution action].”); see also J.A. 115-

9    16 (Crim. Ct. Order) (dismissing Marshall’s case on the basis of

10   the same statute).    The instruction’s reference to the favorable

11   termination of the prosecution without further elaboration is

12   therefore not a basis for reversal or a new trial.

13     3. Exclusion of Recognition Evidence

14           Finally, Randall and Burbridge argue that the district court

15   erred in excluding evidence that Burbridge recognized Marshall on

16   the night of the arrest from Burbridge’s review of NYPD arrest and

17   complaint reports.    Before trial, the district court excluded the

18   recognition evidence on the basis that there was “only one issue”

19   in the case - whether the officers saw Marshall with the gun - and

20   that it did not “want the case expanded” to include the broader

21   issue of whether the initial stop was valid.    J.A. 875-76 (Hearing

22   Tr.).    The district court’s ruling did not inhibit Marshall’s

23   counsel from nearly opening the door to the recognition evidence by

24   intimating that the stop was unlawful, however.    For instance:


                                        13
 1                Q: Now at some point, Officer Burbridge
 2                suggested that you stop Mr. Marshall, true?
 3
 4                [Defendants’ Attorney]: Objection. Objection,
 5                Your Honor. That question is the subject of
 6                an in limine ruling.
 7
 8                The Court: A what?
 9
10                [Defendants’ Attorney]: An in limine ruling.
11
12                The Court: Repeat the question, please.
13
14                (Record read back by the reporter.)
15
16                The Court: Overruled.
17
18   Id. at 989 (Trial Tr.).     After several similar questions, during a

19   break without the jury present, defense counsel sought a ruling

20   that Marshall had opened the door to the reasons for the initial

21   stop.    The district court denied the motion, stating that no door

22   had been opened and that Marshall had “been referring . . . to the

23   period from the time the Defendants first observed the Plaintiff

24   until the arrest.”    Id. at 1097 (Trial Tr.).

25           Randall and Burbridge moved unsuccessfully for a mistrial on

26   the basis that Marshall had opened the door but that they had not

27   been allowed to present their recognition testimony.       They then

28   asked the district court to give a curative instruction indicating

29   that the initial stop was not at issue.    The district court gave

30   the curative instruction:

31                The initial stop was lawful. You can assume
32                that. That’s not the violation that’s claimed
33                here. The evidence relating to observation
34                and acts surrounding the stop may be
35                considered in deciding credibility. So you

                                          14
1              can consider all of the evidence from the time
2              they first observed, according to their
3              evidence, the defendant up to the time when he
4              was placed under arrest.
5
6    Id. at 1217 (Trial Tr.).

7         The district court’s exclusion of the recognition evidence

8    proffered by the defendants is not a basis for disturbing the

9    jury’s judgment.   We review this evidentiary ruling for abuse of

10   discretion and will reverse only if the “erroneous ruling affected

11   a party’s substantial rights.”   Marcic, 397 F.3d at 124.     On

12   appeal, Burbridge and Randall argue, as they did at trial, that

13   Marshall opened the door by intimating the stop was improper and

14   that they were unduly prejudiced because they were not allowed to

15   elicit the true basis for the stop – recognition of Marshall from a

16   review of NYPD arrest and complaint reports.

17        The district court’s rulings regarding the recognition

18   evidence were a bit uneven.   Although it seemed before trial that

19   all evidence relating to the initial stop would be excluded, the

20   district court allowed some evidence about the stop, but not the

21   recognition evidence sought by the defendants.   The district

22   court’s curative instruction, however, alleviated any confusion on

23   this score and mitigated any damaging effect of Marshall’s

24   questioning about the stop.   Nor is there any basis to believe that

25   the jury disregarded the district court’s instruction.      See

26   Downing, 297 F.3d at 59.   In sum, the district court’s handling of

27   the recognition evidence issue does not merit a new trial.

                                      15
1                               CONCLUSION

2        For the foregoing reasons, the judgment of the district court

3   is AFFIRMED.




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