                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 15a0807n.06

                                            No. 15-3320


                          UNITED STATES COURT OF APPEALS
                               FOR THE SIXTH CIRCUIT                                      FILED
                                                                                    Dec 10, 2015
MAURICE SNOW,                                             )
                                                                                DEBORAH S. HUNT, Clerk
                                                          )
Plaintiff-Appellant,                                      )
                                                          )
                                                                  ON APPEAL FROM THE
v.                                                        )
                                                                  UNITED STATES DISTRICT
                                                          )
                                                                  COURT FOR THE
ERIK NELSON et al.,                                       )
                                                                  SOUTHERN DISTRICT OF
                                                          )
                                                                  OHIO
Defendants-Appellees.                                     )
                                                          )
                                                          )

BEFORE:        GIBBONS and McKEAGUE, Circuit Judges; ANDERSON, District Judge*

       JULIA SMITH GIBBONS, Circuit Judge. Maurice Snow appeals the district court’s

order granting summary judgment in favor of defendants Detective Erik Nelson and Officer

Mark Rankin, on his 42 U.S.C. § 1983 claims. Snow alleges that defendants illegally arrested

him and participated in his prosecution in violation of his Fourth and Fourteenth Amendment

rights, based on Nelson’s mistaken belief that Snow appeared in a surveillance video of a

controlled drug purchase. For the reasons set forth in this opinion, we affirm the district court.

                                                  I.

       In the summer of 2013, the Norwood, Ohio Police Department’s Drug Task Force began

an investigation into a man known as “Emmitt,” who was later identified as Maurice Snow.

Defendants Nelson and Rankin both participated in this investigation. The investigation began

when Nelson received a tip from a confidential informant. The informant told Nelson that he had

       *The Honorable S. Thomas Anderson, United States District Judge for the Western District of
Tennessee, sitting by designation.
No. 15-3320, Snow v. Nelson, et al.


previously lived with two people he knew only as Emmitt and Emmitt’s girl, at 5613 Rolston

Avenue in Norwood, Ohio, and that Emmitt was distributing illegal narcotics. He also told

Nelson that he had served as an informant in other investigations with the Cincinnati Police

Department and the Ohio Liquor Control Agency. Before investigating further, Nelson contacted

Detective Howard Fox of the Cincinnati Police Department to discuss the informant’s credibility.

Fox told Nelson that the informant was reliable and recommended that Nelson use him.

       On July 15, 2013, the Norwood Drug Task Force executed the first of four controlled

drug buys from Emmitt. This purchase was videotaped from two separate locations, and it was

recorded via a wire worn by the informant who purchased the drugs. The audio and video

recordings of the July 15 controlled purchase reveal the following: The informant places a phone

call to Emmitt and arranges to purchase crack cocaine. Before anyone arrives at the informant’s

location, he speaks into the wire. The informant says that “the subject is on the way . . . he is on

the way to come to see me, and you will see him.” Audio-Video File 89-13A, ECF No. 21. The

informant is first approached by a thin, shirtless African-American man wearing white shorts. As

the shirtless man approaches, the informant says “okay here he comes. This deal’s gonna go

down in about thirty seconds.” Audio-Video File 89-13C, ECF No. 21. A few moments after the

shirtless man arrives, another heavier-set African American man wearing a green shirt and a

green plaid hat approaches. The man in the green shirt exchanges the money and crack cocaine

with the informant.

       The informant was debriefed shortly after the controlled buy. During the debrief, the

informant told officers that “the little skinny guy” came over and spoke to him and then the

heavier man in the green shirt arrived. Audio File 7/15/13, ECF No. 21. The informant identified

the man in the green shirt as “the dope dealer,” but he did not identify either person in the video



                                                 2
No. 15-3320, Snow v. Nelson, et al.


as Emmitt. Id. Following the debrief, Nelson prepared an Arrest Report and Trial Preparation

Report noting that Emmitt personally appeared in the videos taken that day. In his deposition,

Nelson testified that after the July 15 controlled buy and debrief he mistakenly assumed that the

man in the green shirt was Emmitt. Likewise, Rankin testified that Nelson was at first mistaken

that Emmitt was the man in the green shirt who appeared in the July 15, 2013 video, and that

only later did they discover that Emmitt was using runners to conduct the drug purchases.

       The day after the first controlled drug buy, Nelson obtained records showing that Maurice

Snow and Tanisha Sims paid the utility bills at 5613 Rolston Avenue, the address where the

informant said he previously lived with Emmitt and Emmitt’s girlfriend. Nelson also obtained

Ohio Bureau of Motor Vehicles (“BMV”) photos of Snow and Sims, which he showed to the

informant. The informant immediately identified Snow as Emmitt and Sims as Emmitt’s

girlfriend. He confirmed that these were the two people he lived with at 5613 Rolston Avenue

and that Snow was the person he knew to be selling narcotics in Norwood under the name

Emmitt. In his deposition, Snow confirmed that he lived at 5613 Rolston Avenue with his

girlfriend, Tanisha Sims, from February 2013 through August 2013 and also that the BMV photo

shown to the informant on July 16 was a photo of him.

       The Drug Task Force subsequently used the informant to purchase drugs from

Emmitt/Snow three more times, on July 16, July 30, and August 13. All four controlled buys

started with a phone call from the informant to Emmitt, and all four resulted in actual drug

purchases. Several different drug couriers are seen in the July 16, July 30, and August 13

controlled buys. During the August 13 purchase, the informant indicated that he saw Snow run

down Rolston Avenue from his house to meet a drug courier outside of the Dale Road Drive

Thru. The informant witnessed the drug courier hand Snow the $50.00 he had just used to



                                               3
No. 15-3320, Snow v. Nelson, et al.


purchase the crack-cocaine, and he saw Snow walk back to his house at 5613 Rolston. Because

of the location of the video cameras, none of this was captured on film.

       On August 15, 2013, Nelson sent a memorandum to the Hamilton County Prosecutor’s

Office requesting that a grand jury consider indicting Snow on four counts of trafficking in

narcotics. On August 21, 2013, Nelson was subpoenaed to testify before the grand jury, and on

September 5, 2013, a grand jury indicted Snow on all four counts. Snow was subsequently

arrested on October 18, 2013 and detained in the Hamilton County Justice Center.

       Erik Laursen, Snow’s counsel, served discovery requests on the State on November 12,

2013. The State responded on November 18, 2013 that police reports would be “[p]rovided with

discovery as available” and that they would make “Surveillance Audio or Video” available for

inspection. Laursen Aff. 503–04, ECF No. 32–1.

       On December 9, 2013, Laursen appeared in court to discuss a “plea or trial setting.” Id. at

497. Before this court session, Nelson showed Laursen the video of the July 15, 2013 controlled

buy. At some point, Laursen asked Nelson to describe what was happening, and Nelson pointed

to a man in the video and said, “There is your guy.” Id. Nelson clarified that he thought Snow

was the man in the green shirt who appeared in the July 15, 2013 video. At that point, Lieutenant

Harry Schlie arrived. Laursen informed Schlie and Nelson that the man in the video was not

Snow. Schlie and Laursen then went to the holding area where Snow was, and Schlie confirmed

that Snow was not the man in the video. Laursen returned to the courtroom, where he moved for

and was granted a recognizance bond. The State dismissed its case shortly thereafter.

       Snow subsequently filed a complaint pursuant to 42 U.S.C. § 1983, alleging deprivations

of his rights under the Fourth and Fourteenth Amendments. The district court granted

defendants-appellees’ motion for summary judgment, and this timely appeal followed.



                                                4
No. 15-3320, Snow v. Nelson, et al.


                                                 II.

       We review a district court’s decision to grant summary judgment de novo. Miller v.

Sanilac Cty., 606 F.3d 240, 246 (6th Cir. 2010). Summary judgment is proper “if the pleadings,

the discovery and disclosure materials on file, and any affidavits show that there is no genuine

issue as to any material fact and that the movant is entitled to judgment as a matter of law.”

Moldowan v. City of Warren, 578 F.3d 351, 373–74 (6th Cir. 2009) (quoting Fed. R. Civ. P.

56(c)). We view all facts and inferences in the light most favorable to the nonmoving party and

uphold a grant of summary judgment “only where the record as a whole could not lead a rational

trier of fact to find for the non-moving party.” Miller, 606 F.3d at 247.

       “At the summary judgment stage, the moving party bears the initial burden of identifying

those parts of the record that demonstrate the absence of any genuine issue of material fact.”

Moldowan, 578 F.3d at 374 (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986)). If the

moving party seeks summary judgment on an issue for which it does not bear the burden of proof

at trial, however, the moving party may meet its burden by showing “‘that there is an absence of

evidence to support the nonmoving party’s case.’” Id. (quoting Celotex, 477 U.S. at 325). When

the moving party has carried this burden, the nonmoving party may not rest upon its allegations

and denials, but rather must set forth specific facts showing that there is a genuine issue for trial.

Id. (citing Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)).

                                                 III.

       A.      Fourteenth Amendment Brady Claim

       Snow first claims that Nelson and Rankin violated the Fourteenth Amendment by failing

to disclose to prosecutors and the grand jury that on July 15, 2013, the confidential informant

identified a man who was not Snow as “the dope dealer,” but on the following day identified



                                                  5
No. 15-3320, Snow v. Nelson, et al.


Snow as “Emmitt,” the suspected drug dealer and target of the investigation. While there is some

argument about whether Snow raises his Brady claim for the first time on appeal, assuming that

this claim is properly before us, it lacks merit because the alleged exculpatory evidence was

disclosed, and Snow never stood trial.

       Defendants first argue that Snow’s Brady claim is not properly before this court because

it does not appear on the face of his complaint. As a general rule, this court does not consider

new arguments presented for the first time on appeal. See, e.g., United States v. Ellison, 462 F.3d

557, 560 (6th Cir. 2006). Moreover, we have held that “[t]he appropriate method for adding new

factual allegations to a complaint is not via an appellate brief, but by filing an amended

complaint.” Harvey v. Great Seneca Fin. Corp., 453 F.3d 324, 328 (6th Cir. 2006). Defendants

are correct that Snow’s complaint does not allege a Brady violation. It does allege a deprivation

of his rights under the Fourth and Fourteenth Amendments, but it only states a single cause of

action, which nearly mirrors the elements of a Fourth Amendment malicious prosecution claim.

Notably absent is any mention of Brady or the elements of a Brady claim. However, Snow’s

Brady and malicious prosecution claims are premised on the same underlying facts. See Gregory

v. City of Louisville, 444 F.3d 725, 750–51 (6th Cir. 2006) (noting that Brady and malicious

prosecution claims can share a factual premise and that plaintiffs are free to pursue claims under

both theories). The factual premise of Snow’s Brady claim appears on the face of his complaint

and, thus, Snow’s appeal does not seek to augment the factual allegations of his complaint. What

is more, Snow’s Brady claim was raised in his Response in Opposition to Defendants’ Motion

for Summary Judgment, and it was briefed by both parties before the district court. We assume,

therefore, that Snow’s Brady claim is properly before us. However, we find the merits of that

claim lacking.



                                                6
No. 15-3320, Snow v. Nelson, et al.


       When exculpatory material is disclosed, even belatedly, there is generally no Brady

violation. See United States v. Word, 806 F.2d 658, 665 (6th Cir. 1986), cert. denied, 480 U.S.

922 (1987) (“In general, the principles announced in Brady do not apply to a tardy disclosure of

exculpatory information, but to a complete failure to disclose.”). If a criminal defendant can

show that he was materially prejudiced by a delay in disclosure, it may be grounds for a Brady

claim. Id. However, when exculpatory information is disclosed “‘in time for use at trial’” there is

no constitutional violation. United States v. Crayton, 357 F.3d 560, 569 (6th Cir. 2004) (quoting

United States v. Presser, 844 F.2d 1275, 1283 (6th Cir. 1988)). This follows logically from our

understanding that material prejudice occurs only when it is likely that the disclosure of the

evidence would have altered the result of the proceeding. See United States v. Garner, 507 F.3d

399, 405 (6th Cir. 2007). Here, the information was disclosed before a trial date was set. And

immediately after Snow’s attorney first learned of the alleged misidentification, his client was

released, and the charges were dropped.

       Despite never standing trial and ultimately being released, Snow maintains that he has

stated a proper Brady claim because the alleged failure to disclose resulted in his detention for

fifty-two days. This argument, however, misperceives the harm Brady claims are designed to

redress. Brady’s “ultimate concern [is] ensuring that criminal defendants receive a fundamentally

fair trial.” Moldowan, 578 F.3d at 378 (internal quotation marks omitted). In light of this

concern, we have held that liability for a Brady violation only exists when evidence sufficient to

“‘put the whole case in such a different light as to undermine confidence in the verdict’” is

improperly withheld. Johnson v. Mitchell, 585 F.3d 923, 933 (6th Cir. 2009) (quoting Kyles v.

Whitley, 514 U.S. 419, 435 (1995)) (emphasis added). Furthermore, a Brady claim requires “a




                                                7
No. 15-3320, Snow v. Nelson, et al.


showing that there is a ‘reasonable probability’ that had the evidence been timely disclosed to the

defense the outcome would have been different.” Garner, 507 F.3d at 405 (emphasis added).

       Here, the State did not secure a criminal conviction by improperly withholding

exculpatory evidence. On the contrary, the record is clear that the State was complying with

discovery requests. Moreover, there is no question that before a plea was discussed or trial dates

set, Snow’s attorney learned of the allegedly exculpatory information. Perhaps Snow would have

been released earlier had the alleged misidentification come to light sooner, but he can have no

complaints about the ultimate outcome of his case. The fifty-two days Snow spent in jail

awaiting a plea or a trial is simply not the type of deprivation Brady claims are intended to

remedy.

       Even were we to recognize a Brady claim in this context, defendants would be entitled to

qualified immunity. As we held in Robertson v. Lucas, our precedent does not support any

clearly established right of criminal defendants to receive exculpatory Brady material before plea

bargaining. 753 F.3d 606, 621 (6th Cir. 2014). There, the court found that while every reasonable

officer “would know that they were under an obligation to present Brady material to the

prosecutors in time for its effective use at trial,” the officers were under “no clearly established

obligation to disclose exculpatory Brady material to the prosecutors in time to be put to effective

use in plea bargaining.” Id. at 621–22 (internal quotation marks and citations omitted.) Here,

Snow’s attorney was aware of the alleged misidentification prior to any plea bargaining. Thus,

defendants are well within the ambit of qualified immunity.

       B.      Fourth Amendment Malicious Prosecution Claim

       Snow also claims that he was subject to malicious prosecution in violation of the Fourth

Amendment. To successfully prove a § 1983 malicious prosecution claim premised on a Fourth



                                                 8
No. 15-3320, Snow v. Nelson, et al.


Amendment violation, Snow must show the following: (1) a criminal prosecution was initiated

against him and that defendants made, influenced, or participated in the decision to prosecute;

(2) there was no probable cause for the criminal prosecution; (3) as a consequence of the legal

proceeding, he suffered a deprivation of liberty apart from the initial seizure; (4) and the criminal

proceeding was resolved in his favor. Sykes v. Anderson, 625 F.3d 294, 308–09 (6th Cir. 2010).

Because Snow’s malicious prosecution claim is clearly and easily resolved by addressing the

second prong of his claim, it is unnecessary to analyze the remaining elements.1

        It is well-settled that the “finding of an indictment, fair upon its face, by a properly

constituted grand jury, conclusively determines the existence of probable cause.” Barnes v.

Wright, 449 F.3d 709, 716 (6th Cir. 2006) (citing Higgason v. Stephens, 288 F.3d 868, 877 (6th

Cir. 2002)). However, we recognize an exception to this general rule when defendants

deliberately or recklessly present false testimony to a grand jury in order to obtain an indictment.

See Webb v. United States, 789 F.3d 647, 660 (6th Cir. 2015); Robertson v. Lucas, 753 F.3d 606,

616 (6th Cir. 2014). Snow’s burden at summary judgment, therefore, was to adduce evidence

that defendants knowingly or recklessly presented false testimony to the grand jury. This he has

not done.

        The record is unclear as to which officer testified before the grand jury, and because the

record does not contain a transcript of the grand jury proceedings, there is no way to answer this

question with certainty. In his deposition, Nelson stated that he, Officer Rankin, and Officer

Schlie took turns testifying before grand juries, and that he could not remember who testified in

1
  It should be said, however, that in this case the first prong inquiry largely mirrors the second prong
analysis. Snow premises appellees’ liability on their testimony before the grand jury. Therefore, to
establish their involvement in commencing a criminal proceeding Snow was required “to present
evidence that [the officers] (1) stated a deliberate falsehood or showed reckless disregard for the truth [at
the hearing] and (2) that the allegedly false or omitted information was material to the [grand jury’s]
finding of probable cause.” Sykes, 625 F.3d at 312 (internal quotation marks and citations omitted).
Because the grand jury transcript is not in the record, Snow cannot make the required showing.
                                                     9
No. 15-3320, Snow v. Nelson, et al.


Snow’s case. The district court presumed that because Nelson was the one subpoenaed to appear

before the grand jury, he was the one who testified. But even assuming Nelson testified, without

a transcript of the proceedings, we cannot discern the content of the presumed testimony, much

less whether it was deliberately or recklessly false. 2

         Snow argues that a reasonable jury could infer that Nelson’s testimony before the grand

jury implicated Snow and failed to disclose the informant’s alleged misidentification of the target

of the investigation. While we must draw all reasonable inferences in the light most favorable to

the nonmoving party, there must be some evidentiary basis from which to infer. See Webb, 789

F.3d at 661 (“To make out a genuine issue of material fact, [a] plaintiff must present significant

probative evidence tending to support [his] version of the facts, evidence on which a reasonable

jury could return a verdict for [him].” (internal quotation marks and citation omitted)). Without a

transcript of the grand jury proceedings, there is no evidence that defendant-appellees testified

falsely or recklessly and, therefore, no evidence that undermines the presumption of probable

cause created by the indictment. See Young v. Owens, 577 F. App’x. 410, 416–17 (6th Cir. 2014)

(affirming grant of summary judgment on malicious prosecution claim where plaintiffs alleged

officers testified falsely before the grand jury but where grand jury transcript was not part of the

record). Snow has failed his burden to “set forth specific facts showing that there is a genuine

issue for trial.” Anderson v. Liberty Lobby, 477 U.S. 242, 256 (1986).

         Even were we inclined to make the inferential leaps Snow asks us to, his malicious

prosecution claim still fails because probable cause existed to arrest him, notwithstanding the

allegedly false testimony. To determine whether there was probable cause to indict Snow, this

court must analyze the totality of the circumstances to see whether facts and circumstances were

         2
          At the district court, Snow did not attempt to show by affidavit or declaration that he was unable to obtain
a copy of the grand jury transcript, nor does he argue anything of the kind on appeal. See Fed. R. Civ. P. 56(d)(1)–
(3).

                                                         10
No. 15-3320, Snow v. Nelson, et al.


sufficient to lead a reasonable person to believe that Snow committed the particular offenses with

which he was charged. See McKinley v. City of Mansfield, 404 F.3d 418, 445 (6th Cir. 2005).

The first step in this analysis is to “set aside the [false] statements and include the information

omitted” to determine whether the indictment is still supported by probable cause. Sykes, 625

F.3d at 305. Thus, we must hypothesize a grand jury that did not think Snow appeared in any of

the videos and was aware of the informant’s alleged misidentification. Even in light of these

assumptions, there are other relevant facts in the record to support a finding of probable cause.

       The confidential informant was known to be reliable, and he had firsthand knowledge of

Snow. See Webb, 789 F.3d at 663 (“Information from a confidential informant who has been

established as reliable can serve as the basis for probable cause.”) (citing Illinois v. Gates,

462 U.S. 213, 232 (1983)). Throughout the investigation, the only person the informant ever

positively identified as Emmitt was Snow, and he also immediately identified Tanisha Sims,

Snow’s girlfriend at the time, as Emmitt’s girlfriend. Moreover, the police independently

corroborated that Snow and his girlfriend lived at 5613 Rolston Avenue. See Gates, 462 U.S. at

241 (“Our decisions applying the totality-of-the-circumstances analysis . . . have consistently

recognized the value of corroboration of details of an informant’s tip by independent police

work.”). Even if we make the strained assumption that the informant’s identification of another

individual as “the dope dealer” has some exculpatory value, based on the other evidence of the

informant’s veracity, the alleged misidentification does not approach conclusive proof that the

informant was unreliable. See id. at 232.

       Additionally, other circumstantial evidence provides support for probable cause in this

case. For example, the informant placed four calls to the person he knew as Emmitt to arrange to

purchase crack-cocaine and all four calls resulted in drug purchases. Although Snow does not



                                                11
No. 15-3320, Snow v. Nelson, et al.


appear in the July 15 video, use of a runner is consistent with Emmitt’s practices, as shown by

the July 16, July 30, and August 13 drug purchases. Finally, during the August 13 controlled

drug buy, the informant, who had personal knowledge of Snow, witnessed Snow take money

from a drug courier and walk back to his house at 5613 Rolston Avenue.

       Snow maintains that his release almost immediately following the discovery of Nelson’s

mistake is conclusive evidence that no probable cause existed to arrest and prosecute him.

However, “[a]n arrest grounded in probable cause does not become invalid merely because the

State chooses not to prosecute the individual.” Williams v. Cambridge Bd. Educ., 370 F.3d 630,

638 (6th Cir. 2004). Based on the totality of the circumstances and ignoring the allegedly false

testimony and material omissions, there was probable cause underlying the grand jury’s

indictment, and therefore, Snow cannot show that he was subjected to malicious prosecution in

violation of his Fourth Amendment rights.

                                                   IV.

       For the foregoing reasons, we affirm the district court’s grant of summary judgment for

defendants.




                                              12
