Kelly SOO PARK, Plaintiff-Appellant, v. Karen THOMPSON, Defendant-Appellee.
No. 14-56655
United States Court of Appeals, Ninth Circuit.
March 14, 2017
Argued and Submitted October 4, 2016, Pasadena, California
Although no violation of these statutes was discussed—let alone proved—at sentencing, the government argues that we may find factual support for this increase in the Department of Environmental Health‘s report, which indicated that the chemicals acetone, methanol, glycerol, and ethanol were found in Job‘s garage. The government maintains that acetone and methanol are both “per se ‘hazardous wastes‘” covered by the Resource Conservation and Recovery Act, and therefore can be the basis for this increase. Although the Environmental Protection Agency has designated acetone and methanol as hazardous wastes, the government presented no evidence at sentencing regarding the form, quantity, or storage of these substances. See Protection of the Environment,
VI. CONCLUSION
The district court erred in denying Job‘s motion to suppress the evidence discovered during the unlawful searches of Job‘s person and car. That error was harmless with respect to Job‘s conviction for conspiracy to distribute methamphetamine, and we therefore AFFIRM his conviction on Count 1. We do not reach the same conclusion with respect to Job‘s conviction for possession with intent to distribute; we therefore VACATE his conviction on Count 5 and REMAND for further proceedings consistent with this opinion, including a possible retrial on that count. We VACATE his sentence on both counts and REMAND for resentencing.
AFFIRMED IN PART, VACATED IN PART, AND REMANDED FOR FURTHER PROCEEDINGS.
Anthony P. Serritella (argued), Deputy City Attorney; Marsha Jones Moutrie, City Attorney; Jeanette Schachtner, Chief Deputy City Attorney; Santa Monica City Attorney‘s Office, Santa Monica, California, for Defendant-Appellee.
Before: STEPHEN REINHARDT, FERDINAND F. FERNANDEZ, and JOHN B. OWENS, Circuit Judges.
Partial Concurrence and Partial Dissent by Judge FERNANDEZ
OPINION
REINHARDT, Circuit Judge:
Kelly Soo Park was tried by the state of California for the murder of Juliana Redding. Before triаl, the judge ruled that she would not allow Park to present any evidence of third-party culpability after Park‘s key witness on that question, Melissa Ayala, invoked her Fifth Amendment privilege and refused to testify. Park was eventually acquitted of all charges.
This appeal presents several issues of law. First, we must decide whether Park has adequately alleged misconduct by Thompson that rises to the level of substantial interference with a defense witness in contravention of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fourteenth Amendment. Because we hold that Park has adequately alleged such misconduct, we must decide a second issue: whether Park adequately pleads that Thompson‘s misconduct caused Ayala to refuse to testify. We hold that Park has pleaded a sufficient causal connection between Thompson‘s misconduct and Ayala‘s unavailability. Third, we must consider whether Park nonetheless failed to state a claim because Ayala‘s purported testimony was not favorable and material to her criminal defense. We hold that the fact that Park was eventually acquitted does not render Ayala‘s testimony immaterial, nor does it bar Park‘s Section 1983 action stemming from violations of her rights during the underlying criminal investigation and prosecution. Furthermore, we conclude that Ayala‘s testimony was material to Park‘s defense because evidence of third-party culpability would have cast some doubt on the government‘s evidence at Park‘s trial. Finally, we must make similar determinations with respect to Park‘s conspiracy claims. Here, we also hold the allegations sufficient.
In view of the above, we reverse the district court‘s judgment and remand for furthеr proceedings consistent with this opinion.
FACTUAL AND PROCEDURAL BACKGROUND
I. Factual Background
On March 15, 2008, Juliana Redding was strangled to death in her home in Santa Monica, California. Detective Karen Thompson of the Santa Monica Police Department (“SMPD“) was the lead investigator on the Redding case. After a few months passed without any leads as to who was responsible for Redding‘s death, Detective Thompson requested permission from SMPD to continue investigating on her own time. She eventually matched DNA found on Redding‘s body to Park. The Los Angeles County District Attorney‘s Office (“District Attorney“) consequently charged Park with Redding‘s murder.
Park‘s murder trial was set for May of 2013. As part of her criminal defense, Park sought to introduce evidence that Red-
On January 31, 2013, Park‘s investigator interviewed Gilmore‘s former girlfriend, Melissa Ayala. During that interview, Ayala told the investigator that Gilmore had been violent toward her and had choked her on at least three occasions. According to Ayala, the first of these incidents occurred after Ayala brought up Redding‘s death and accused Gilmore of murdering Redding. Before choking Ayala, Gilmore responded, “You want to see how she [Redding] felt?” On the second occasion, after Ayala again accused Gilmore of murdering Redding, he stated, while choking Ayala, that he was “[g]oing to show [Ayala] how [Redding] felt.” Gilmore was convicted of domestic violence against Ayala. During the interview with Park‘s investigator, Ayala said she was afraid of Gilmore, but she agreed to testify about his violent behavior and the statements he made about Redding‘s death.
After learning of this potentially exculpatory evidence, Park gave notice to the District Attorney of her intention to call Ayala as a defense witness at trial. Detective Thompson then contacted Ayala and attempted to dissuade her from testifying for the defense. Among other things, Thompson allegedly told Ayala that Gilmore—who had physically abused Ayala in the past—was “really upset” about her statements. Park also alleges that Thompson knowingly made false representations to Ayala about the nature of the evidence against Park.4 In addition, Thompson allegedly told Ayala, “[Y]ou don‘t have to talk to them [defense investigators] if you don‘t want to . . . [I]f they call you, you don‘t even need to call back. . . . You‘re not under any obligation to do anything.”
Detective Thompson allegedly admitted that she “had not spoken to Ms. Ayala for investigatory purposes,” but rather had called Ayala only to “repair the damage the Private Investigators had done to her relationship with [Gilmore].” After speaking with Detective Thompson, Ayala refused any further contact with Park‘s investigators, although prior to that conversation she had cooperated fully with them. Also, after the conversation, she reneged on her commitment to testify as a witness on Park‘s behalf.
On information and belief, Park alleges that Thompson and/or Defendant Does, at Thompson‘s instigation, later spoke with the El Segundo Police Department about filing charges against Ayala for assault and criminal threats against Gilmore based on an incident that had occurred during the previous year. Park alleges that Detective Thompson and/or Defendant Does told the El Segundo Police Department that it was important to file charges against Ayala as soon as possible because the charges
On May 9, 2013, Ayala appeared in court pursuant to Park‘s subpoena to testify at trial. The Deputy District Attorney informed Ayala‘s defense attorney that if he did not instruct Ayala to invoke her Fifth Amendment right against self-incrimination, then she would move to “recuse” him. Ayala invoked her Fifth Amendment right and declined to testify.5 After Ayala refused to testify, the judge presiding over the criminal case precluded the presentation of any evidence relating to Park‘s third-party culpability defense.
Park was tried and acquitted of all criminal charges. Park‘s defense counsel elicited favorable testimony from the prosecution‘s DNA expert, who testified that Park‘s DNA could have been transferred to Redding‘s body by the actual killer when he wiped down the apartment to eliminate fingerprints or DNA evidence. Park alleges that even though she was ultimately acquitted, her acquittal was far less certain in the absence of Ayala‘s testimony. Without that testimony, Park was precluded from presenting evidence of third party culpability at trial and was limited to presenting solely a failure of proof defense.
II. Procedural History
Park filed her complaint in district court asserting two causes of action against Detective Thompson and Defendants Does 1-10: (1) deprivation of civil rights,
The district court granted Detective Thompson‘s motion to dismiss the complaint without leave to amend. With respect to Park‘s claim against Thompson individually: first, the district court‘s opinion was not entirely clear as to whether the district judge held that Park had not adequately alleged that Thompson‘s conduct constituted substantial interference. Second, the district court concluded that Park had “not pleaded sufficient facts leading to a reasonable inference that it was Defendant‘s alleged persuasion that caused Ayala not to testify.” Third, the district court concluded that the complaint failed to establish that Ayala‘s testimony would have been “material” to Park‘s third pаrty culpability defense. The district judge reasoned that because Park would have obtained, and did obtain, the same result (acquittal), regardless of whether Ayala‘s testimony was presented to the jury, her Section 1983 claims were precluded. In addition, because Ayala‘s testimony was “not actually ‘exculpatory evidence,‘” the district judge concluded that its exclusion did not materially prejudice Park‘s de-
Park appeals the district court‘s dismissal of her claim against Thompson individually and her conspiracy claim against Thompson and Doe Defendants.
STANDARD OF REVIEW
We review de novo a district court‘s dismissal for failure to state a claim under Rule 12(b)(6). Lee v. City of Los Angeles, 250 F.3d 668, 679 (9th Cir. 2001). We accept the plaintiff‘s allegations as true and view them in the light most favorable to her. New Mexico State Inv. Council v. Ernst & Young LLP, 641 F.3d 1089, 1094 (9th Cir. 2011). “Conclusory allegations of law . . . are insufficient to defeat a motion to dismiss.” Lee, 250 F.3d at 679. Moreover, dismissal is appropriate if the complaint fails to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). “If there are two alternative explanations, one advanced by defendant and the other advanced by рlaintiff, both of which are plausible, plaintiff‘s complaint survives a motion to dismiss under Rule 12(b)(6).” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
I. Section 1983 Claim for Violation of Sixth Amendment Right to Compulsory Process and Fourteenth Amendment Right to a Fair Trial
“To make out a cause of action under Section 1983, [the] plaintiff[] must plead that (1) the defendant[] acting under color of state law (2) deprived plaintiff[] of rights secured by the Constitution or federal statutes.” Williams v. California, 764 F.3d 1002, 1009 (9th Cir. 2014) (internal quotation marks omitted). In the present case, it is undisputed that Detective Thompson was acting under color of state law. Consequently, Park‘s Section 1983 claim must be allowed to proceed if she pleaded sufficient facts to state a claim for violation of her constitutional rights under the Sixth and Fourteenth Amendments.8
The Compulsory Process Clause of the Sixth Amendment provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to have compulsory process for obtaining witnesses in his favor.”
The Supreme Court has established that the government violates due process when its conduct “effectively dr[ives a] witness off the stand.” Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam) (holding right to present a defense was violated when the trial judge singled out and admonished a defense witness about the risks of perjury in “unnecessarily strong terms“). We have further explained that, under Webb, “[i]t is well established that ‘substantial government interference with a defense witness‘s free and unhampered choice to testify amounts to a violation of due process.‘” Ayala v. Chappell, 829 F.3d 1081, 1111 (9th Cir. 2016) (quoting Earp v. Ornoski, 431 F.3d 1158, 1170 (9th Cir. 2005)). Although Webb dealt only with judicial misconduct, wrongful conduct by prosecutors or law enforcement officers can also constitute “substantial government interference” with a defense witness‘s choice to testify. See, e.g., United States v. Vavages, 151 F.3d 1185, 1189 (9th Cir. 1998) (“[T]he conduct of prosecutors, like the conduct of judges, is unquestionably governed by Webb.“); United States v. Little, 753 F.2d 1420, 1439-40 (9th Cir. 1984)
The Supreme Court has also made clear that “the Sixth Amendment does not by its terms grant to a criminal defendant the right to secure the attendance and testimony of any and all witnesses,” but only “witnesses in his favor.” United States v. Valenzuela-Bernal, 458 U.S. 858, 867 (1982) (emphasis in original). Consequently, even where there may have been governmental misconduct, a criminal defendant cannot establish a violation of his compulsory process right unless he “make[s] some plausible showing” of how the potential witness‘s “testimony would have been both material and favorable to his defense.” Id.; see also Cacoperdo v. Demosthenes, 37 F.3d 504, 509 (9th Cir. 1994) (holding Sixth Amendment witness interference claim fails without showing of relevance and materiality).
To state a claim for violation of her fair trial and compulsory process rights, Park must therefore adequately plead (1) that Thompson‘s alleged conduct amounts to “substantial government interference” with a defense witness; (2) that Thompson‘s conduct caused Ayala not to testify; and (3) that Ayala‘s testimony would have been favorable and material. As we have explained previously, because we are reviewing a motion to dismiss, we treat Park‘s allegations as if they were true and draw all inferences in her favor for the limited purpose of this opinion. See Arizona Students’ Ass‘n v. Arizona Bd. of Regents, 824 F.3d 858, 864 (9th Cir. 2016). In this light, we conclude that Park has adequatеly pled each of the three requisite elements.
To make out a claim against Thompson, Park must show not only that Thompson engaged in misconduct, but also that such misconduct was causally connected to Ayala‘s refusal to testify.
a. Misconduct
The “substantial interference inquiry is extremely fact specific” and requires an evaluation of the totality of the circumstances. United States v. Juan, 704 F.3d 1137, 1142 (9th Cir. 2013). It constitutes substantial misconduct for a prosecutor or a law enforcement officer to “intimidate[] or harass[] the witness to discourage the witness from testifying.” Bohn, 622 F.3d at 1138 (quoting Williams v. Woodford, 384 F.3d 567, 601 (9th Cir. 2004)); see also Ayala, 829 F.3d at 1111 (explaining that it could amount to substantial interference with witnesses if it were proved that detective “threatened, coerced, manipulated, and/or intimidated potential and actual witnesses,” including by threatening to investigate witness‘s wife for smuggling drugs into prison). Although it is permissible for law enforcement to contact potential witnesses before trial for investigatory purposes, see Little, 753 F.2d at 1440, we have cautioned that “abuses can easily result when officials elect to inform potential witnesses of their right not to speak with defense counsel.” Cacoperdo, 37 F.3d at 509 (internal quotation marks omitted).
In the present case, Detective Thompson contacted Ayala aftеr Park gave notice to the District Attorney of her intention to use Ayala as a defense witness at her criminal trial.9 During the course of the phone conversation, Thompson told Ayala that “John [Gilmore] was really upset about the whole thing because he—he feels like they just made you lose faith in him, I guess.” Park asserts that, in light of Gilmore‘s “history of violence towards Ms. Ayala,” Thompson‘s statements constitute thinly veiled threats that Gilmore might retaliate against Ayala if she were to testify. Accepting Park‘s allegations as true and viewing them in the light most favorable to her, it is plausible to infer that Thompson intended to intimidate Ayala, a domestic violence victim, by informing her that Gilmore, her abuser, was “really upset” by her potential testimony.
Moreover, Park contends that Thompson‘s actual motive in asserting Gilmore‘s innocence, Park‘s guilt, and the defense team‘s dishonesty was to dissuade Ayala from testifying. See Bohn, 622 F.3d at 1138; see also Smith v. Baldwin, 466 F.3d 805, 824 (9th Cir. 2006)10 (explaining that the intent at issue in evaluating prosecutorial misconduct “is the intent to cause a witness not to testify in a particular manner or not to testify at all,” but intent is not at issue where intimidation or coercion is obvious), vacated by Smith v. Baldwin, 510 F.3d 1127 (9th Cir. 2007) (en banc). During the phone call in question, Thompson declared, among other things, that Gilmore was certainly innocent and that Park was in fact the killer: “And first, what I want to tell you is that John [Gilmore] is not the killer. . . . But the two people who showed up at your house two weeks ago . . . they are private investigators who were hired by the defense team that is representing the killer [Park] [in] this case.”
b. Causation
The district judge concluded that Park “has not pleaded sufficient facts leading to a reasonable inference that it was Defendant‘s alleged persuasion that caused Ayala not to testify.” He reasoned that the telephone conversation between Thompson and Ayala was the only fact alleged connecting Thompson to Ayala. In his view, because “various actors,” including the deputy district attorney, Ayala‘s defense counsel, and the trial judge, “were involved in the time between the telephone conversation and Ayala‘s failure to testify,” there was an insufficient causal link between Thompson‘s phone call and Ayala‘s choice not to testify. We disagree: Park‘s complaint alleges sufficient facts to establish a causal connection between Thompson‘s conduct and Ayala‘s refusal to testify.
Although our precedent clearly requires some “causal link” between the government‘s conduct and the witness‘s decision not to testify, see Juan, 704 F.3d at 1142, our cases do not clearly specify how such a requirement may be satisfied. Other circuits to address the issue have articulated a variety of causation standards for claims of witness interference. See Griffin v. Davies, 929 F.2d 550, 553 (10th Cir. 1991) (“There must be a plausible showing that an act by the government caused the loss or erosion of testimony that was both material and favorable to the defense.“); United States v. Hoffman, 832 F.2d 1299 (1st Cir. 1987) (“[A]n accused must, at a minimum, demonstrate some plausible nexus between the challenged government conduct and the absence of certain testimony.“); United States v. Weddell, 800 F.2d 1404, 1412 (5th Cir. 1986), opinion amended on denial of reh‘g, 804 F.2d 1343 (5th Cir. 1986) (remanding to the district court for an evidentiary hearing on “whether or not [the witness], except for the actions of the government, would have indeed testified for her husband and that her testimony would have had any effect on the jury verdict.” (emphasis added)); United States v. Silverstein, 732 F.2d 1338, 1345-46 (7th Cir. 1984) (concluding that trial judge‘s
To decide the present case, however, we need not adopt any particular causation standard because the complaint in the present case contains sufficient factual allegations to preclude us from affirming on causation grounds under any reasonable standard. Park‘s defense team made a substantial effort to obtain Ayala‘s testimony, including serving her with a subpoena. Before Detective Thompson‘s phone call, Ayala had committed to testifying for the defense and had cooperated with defense investigators. After the phone conversation, however, Ayala refused any further contact with the defense investigators and subsequently declined to testify.12 In light of all of the allegations taken together, including that Thompson called Ayala for an admittedly non-investigatory purpose, misrepresented the evidence against Park, implicitly suggested that Ayala‘s former abuser was upset with her, proclaimed Gilmore‘s innocence and Park‘s guilt, and maligned the defense investigators, we conclude that Park has adequately pleaded a causal connection between Thompson‘s phone call and Ayala‘s decision to renege on her original commitment to testify for the defense.13
Park must also “make some plausible showing” of how the potential witness‘s testimony “would have been both material and favorable to [her] defense” to establish a violation of her compulsory process and fair trial rights. See Valenzuela-Bernal, 458 U.S. at 867. It is indisputable that Ayala‘s testimony would have been favorable to Park‘s defense, and Thompson does not contest that fact. Park must therefore adequately allege only that Ayala‘s testimony would have been material. See id.
a. Park‘s acquittal did not render Ayala‘s testimony immaterial.
Thompson argues that Park‘s acquittal bars her Section 1983 action, apparently on the theory that Ayala‘s testimony was rendered immaterial by Park‘s acquittal. The district judge at one point in his brief order “assum[ed] that [Park‘s] state court acquittal is not a bar to her Section 1983 claim,” although he characterized the question “[w]hether a Section 1983 claim survives absent a conviction in an undеrlying criminal action” as an open question in our circuit. He nonetheless held that the exclusion of Ayala‘s testimony would not have been “material” to Park‘s defense because, even with the testimony, Park “would have obtained the same result.”
The district court was incorrect to characterize this issue as an open question, and his order is inconsistent with the established law of this circuit: our binding precedent clearly explains that an acquittal does not bar a Section 1983 action based on a due process violation during an underlying criminal proceeding. Haupt v. Dillard, 17 F.3d 285, 287-88 (9th Cir. 1994). In Haupt, we held that “acquittal does not erase all injury” but instead “speaks only to the amount of damages.” Id. at 287. The defendant in Haupt was acquitted despite the “egregious behavior” of a detective and a deputy district attorney, who “threatened” and “intimidated” the trial judge to the point “that [he did] not dare . . . give the advisory verdict of acquittal” as he had originally intended. Id. (internal quotation marks omitted) (alteration in original). The defendant then sued the detectives and municipal defendants under Section 1983. Although “there was no conviction” in the underlying criminal trial, we held that “the alleged violation of Haupt‘s due process rights was complete when the trial judge changed his jury instructions because of [the detective‘s and prosecutor‘s] intimidation.” Id. at 288. Consequently, we held that Haupt‘s acquittal did not defeat his claim for denial of due process. Id.
In addition to her compulsory process claim, Park, like the plaintiff in Haupt, claims a violation of her right to a fair trial under the Due Process Clause. This fair trial claim necessarily incorporates her compulsory process claim, as the right to obtain witnesses in one‘s favor is part of the due process “right to fairly ‘present a defense.‘” United States v. Juan, 704 F.3d 1137, 1141 (9th Cir. 2013) (quoting Webb, 409 U.S. at 98). Consequently, our analysis of Park‘s
Park was deprived of her principal and apparently sole defense—that a third party was guilty of the murder—due to Thompson‘s alleged interference with Ayala‘s testimony. The circumstances of Park‘s trial stand in stark contrast to those in Valenzuela-Bernal, the Supreme Court‘s seminal witness interference case, in which the defendant did not know whether the deported witnesses could actually aid in his defense, 458 U.S. at 861, 872-74. Here, the state‘s alleged interference with her key witness entirely deprived Park of hеr principal defense, thereby altering the entire trajectory of her criminal trial.
A trial in which the principal defense has been effectively barred cannot be reconciled with the Due Process Clause, which “guarantees that a criminal defendant will be treated with that fundamental fairness essential to the very concept of justice.” Valenzuela-Bernal, 458 U.S. at 872 (internal quotation marks and citation omitted).14 The constitutional violation in question here therefore includes not simply the fact that Ayala‘s testimony was improperly suppressed, but also the consequent elimination of Park‘s principal (if not her only) defense.15 Park‘s allegations thus plausibly establish an “absence of [ ] fairness [that] fatally infected the entire trial,” Valenzuela-Bernal, 458 U.S. at 872 (internal quotation marks and citation omitted), in violation of her constitutional rights under the Due Process Clause of the Fourteenth Amendment.
Park‘s acquittal did not erase Park‘s constitutional injury, see Haupt, 17 F.3d at 287, nor does it mean that Ayala‘s key testimony was not material. It would be a different case if Ayala were one of many witnesses willing to testify to Gilmore‘s culpability: if other witnesses were available to provide a predicate for Park‘s third-party culpability defense, then Ayala‘s suppressed testimony might not have been material, and Park‘s trial would have been “fair.” Given that Park‘s principal defense was completely suppressed, however, Ayala‘s testimony was not somehow suddenly rendered immaterial at the moment of Park‘s acquittal. See id. at 288. Thus, under Haupt, Park adequately alleg-
The concept of “materiality” does not carry a static and uniform meaning across these two different contexts. In a criminal case, in which the defendant seeks reversal of his conviction, “materiality” means material to the conviction. In other words, in a criminal case, suppressed evidence or testimony is only material if it could have affected the factfinder‘s determination whether the defendant is guilty beyond a reasonable doubt. See Valenzuela-Bernal, 458 U.S. at 874 (explaining testimony is material “only if there is a rеasonable likelihood that [it] could have affected the judgment of the trier of fact“).
Valenzuela-Bernal, for example, dealt solely with the materiality of evidence in a criminal case in which the defendant was convicted. It stands for an elementary proposition of our criminal law: we do not reverse convictions based on the absence of testimony, evidence, or even effective assistance of counsel, unless the convicted defendant can demonstrate that he was somehow “prejudiced” by the deprivation. 458 U.S. at 868. In Valenzuela-Bernal, the Supreme Court unsurprisingly refused to reverse a conviction simply because the government deported two potential witnesses, especially given that the defendant “made no attempt to explain” how the deportees’ testimony
In contrast, in a Section 1983 action, the plaintiff is not seeking reversal of his conviction, but rather compensation for the violation of his constitutional rights during a previous criminal trial. In other words, he is seeking to vindicate his right to a procedurally fair criminal trial. Consequently, the mаteriality test in a Section 1983 case is directed towards a different question: suppressed evidence or testimony is material only if it affected the question whether the defendant was deprived of a fair trial. The fact that a defendant was acquitted has little to do with whether the trial was fair, see Haupt, 17 F.3d at 287, and therefore has little to do with materiality in the context of a Section 1983 claim.
The Eleventh Circuit mechanically imported the materiality requirement, as developed in criminal cases like Valenzuela-Bernal, into its Section 1983 analysis without recognizing this key distinction. Relying exclusively on Valenzuela-Bernal, the Eleventh Circuit held that an acquitted defendant can never state a claim for a violation of his compulsory process right or his due process right to a fair trial because the violation will never be “material.” Kjellsen, 517 F.3d at 1239. Kjellsen‘s premise that a constitutional deprivation is only “material” if it would have resulted in a different verdict would mean that an acquittal nullifies any Section 1983 claim by an acquitted criminal defendant. This premise is wholly inconsistent with Haupt, which explicitly holds that an acquittal does not bar a Section 1983 claim for due process violations.
The Eleventh Circuit‘s failure to recognize that materiality must have a different meaning in Section 1983 cases than in criminal cases was an error that led that circuit to effectively bar all Section 1983 claims by acquitted defendants and thus to create a direct conflict with our precedent in Haupt. We decline to follow the Eleventh Circuit‘s approach, and instead reaffirm our binding rule: Park‘s acquittal does not render Ayala‘s allegedly suppressed testimony immaterial, nor does it preclude her from bringing a Section 1983 action to vindicate her right to a fair trial.
Thompson contends that Haupt has been effectively nullified because it relied on Cooper v. Dupnik, 963 F.2d 1220 (9th Cir. 1992) (en banc), which was later overruled by the Supreme Court in Chavez v. Martinez, 538 U.S. 760 (2003). This argument is without merit. Cooper held that a Miranda violation was actionable under Section 1983 despite the fact that the defendant was “never formally . . . charged in court and [ ] none of his statements ever were offered in evidence to his potential detriment.” Cooper, 963 F.2d at 1245. This holding was overturned by Chavez, in which a plurality of the Supreme Court said that an officer‘s failure to read Miranda warnings to a defendant before interrogation violates only “judicially crafted prophylactic rules” and, for that reason, was not actionable under Section 1983.18 Chavez, 538 U.S. at 772. Critically, Chavez simply does not address cases in which a defendant‘s “core consti-
b. Ayala‘s testimony was material to Park‘s defense.
The district court also concluded that Park failed to adequately plead materiality because Gilmore‘s statements alone were not sufficient to lead to a reasonable inference that he was the murderer and therefore Ayala‘s testimony was “not actually ‘exculpatory evidence.‘” In his analysis, the district judge required a higher degree of exculpation than is appropriate under our precedents. We reverse and conclude that Park has adequately pleaded that Ayala‘s potential testimony was material. Materiality does not require incontrovertible evidence of exculpation; to the contrary, evidence that tends to “cast doubt” on the government‘s case qualifies as material. See United States v. Leal-Del Carmen, 697 F.3d 964, 972 (9th Cir. 2012); see also Gov‘t of Virgin Islands v. Mills, 956 F.2d 443, 446 (3d Cir. 1992) (concluding witness‘s excluded testimony was favorable and material where “it could have served to cast doubt on [victim‘s] identification“).
In the present case, were Ayala to have testified that Gilmore choked her while referring to Rеdding‘s death, it would have been sufficient to permit Park to present a third party culpability defense under California law. Ayala‘s testimony about Gilmore would have satisfied California‘s threshold standard for introducing evidence of third party culpability, which merely requires “direct or circumstantial evidence linking the third person to the actual perpetration” of the murder. People v. Hall, 41 Cal.3d 826, 226 Cal.Rptr. 112, 718 P.2d 99, 104 (1986) (defining standard that an accused must meet under California law for admission of evidence of third-party culpability). Consequently, the trial judge would likely have allowed Park to mount a third-party culpability defense under Hall if Ayala had been willing to testify.20 Even if circumstantial evidence of third party culpability is not itself suffi-
II. Civil Conspiracy Claim Under Section 1983
Park also alleges that Thompson “orchestrated the charging of Ms. Ayala to ensure that she did not testify for the defense” and that, on information and belief, she brought about that result in collaboration with a number of Doe Defendants.21 After the District Attorney received notice that Park planned to call Ayala as a defense witness, and after Detective Thompson‘s phone conversation with Ayala, Thompson and/or a Doe defendant allegedly contacted the El Segundo Police and convinced an officer to initiate charges against Ayala. The District Attorney then unexpectedly brought felony criminal charges against Ayala stemming from a physical dispute with Gilmore approximately a year earlier.
Shortly afterwards, at Park‘s criminal hearings, Ayala declined to testify at Park‘s trial because of these pending charges and after the Deputy District Attorney threatened to “recuse” her attorney if he did not advise her to invoke her Fifth Amendment privilege. Following Ayala‘s refusal to testify, the District Attorney dismissed the felony charges, and Ayala received a probationary sentence after pleading no contest to a misdemeanor charge. Based on these facts, as well as information and belief, Park alleged that Thompson colluded with others to arrange for the filing of criminal charges against Ayala in an effort to make her unavailable to testify at trial.
Park‘s complaint alleged facts that are “suggestive” of an agreement to engage in “illegal conduct.” See Twombly, 550 U.S. at 564 n.8. When the entire factual context is considered,22 it is сlear that Park has “nudged [her] claim[ ]” that Thompson conspired to orchestrate Ayala‘s unavailability “across the line from conceivable to plausible.” See Ashcroft v. Iqbal, 556 U.S. 662, 680 (2009) (internal quotation marks omitted). “The Twombly plausibility standard . . . does not prevent a plaintiff from pleading facts alleged upon information and belief where the facts are peculiarly within the possession and control of the defendant or where the belief is based on factual information that makes the inference of culpability plausible.” Arista Records, LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (citations and quotation marks omitted); see also Concha v. London, 62 F.3d 1493, 1503 (9th Cir. 1995) (“[W]e relax pleading requirements where the relevant facts are known only to the defendant.“). Because many of the relevant facts here are known only to the
CONCLUSION
For the reasons stated above, the district court‘s dismissal of Park‘s complaint is reversed and remanded for proceedings consistent with this opinion. REVERSED AND REMANDED.
FERNANDEZ, Circuit Judge, concurring in part and dissenting in part:
I respectfully concur in part and dissent in part.
I agree with the majority that we must review the district court‘s decision de novo. See Starr v. Baca, 652 F.3d 1202, 1205 (9th Cir. 2011). Moreover, I agree that we view the allegations of thе complaint in the light most favorable to the plaintiff. But that does not mean that a complaint is sufficient because we can imagine a possibility that the defendant has committed some wrongdoing. Rather, “[w]here a complaint pleads facts that are merely consistent with a defendant‘s liability, it stops short of the line between possibility and plausibility of entitlement to relief.” Moss v. U.S. Secret Serv., 572 F.3d 962, 969 (9th Cir. 2009) (internal quotation marks omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 677-84 (2009); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007).
Moreover, where a plaintiff has relied upon a document, or parts thereof, courts can properly consider the whole of the document to be effectively incorporated by reference into the complaint. See Branch v. Tunnell, 14 F.3d 449, 453-54 (9th Cir. 1994), overruled on other grounds by Galbraith v. County of Santa Clara, 307 F.3d 1119, 1121 (9th Cir. 2002); see also Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam); Knievel v. ESPN, 393 F.3d 1068, 1076-77 (9th Cir. 2005).
As the district court determined, Park‘s complaint does not cross the line and reach plausibility; it is blocked by the principles outlined above.
A. I agree that if a government officer “‘intimidates or harasses the witness to discourage the witness from testifying,’ ” that indicates “[u]ndue prosecutorial interference.” United States v. Bohn, 622 F.3d 1129, 1138 (9th Cir. 2010); see also Earp v. Ornoski, 431 F.3d 1158, 1170-71 (9th Cir. 2005); Williams v. Woodford, 384 F.3d 567, 601-02 (9th Cir. 2004). Unnecessarily strong warnings can accomplish that. See, e.g., Webb v. Texas, 409 U.S. 95, 98 (1972) (per curiam); United States v. Vavages, 151 F.3d 1185, 1190-91 (9th Cir. 1998); cf. United States v. Jaeger, 538 F.3d 1227, 1231-32 (9th Cir. 2008). Had Thompson engaged in that sort of activity, she would have acted improperly. See Ayala v. Chappell, 829 F.3d 1081, 1110-11 (9th Cir. 2016). She did not do so.
In fact, Thompson did not threaten Ayala at all, and surely did not suggest that Ayala should not testify. Of course, she did state that Gilmore was “really upset.” However, that was not because of what Ayala had said or would say, but because the defense minions had bad-mouthed him and claimed that he had committed other unsavory crimes. Gilmore was concerned
Furthermore, Thompson told Ayala that if she received a subpoena she was “under an obligation to appear.” Moreover, when Ayala said that she did not want to hurt Gilmore, Thompson replied: “No, I understand. But—but you have to tell the truth and you‘ll have to let us do our job . . . .” None of that bespeaks an attempt to keep Ayala from testifying; quite the contrary.
I recognize that Thompson entered dangerous territory when she decided to talk to Ayala and tell her that she was not required to speak further to Park‘s investigators. See Cacoperdo v. Demosthenes, 37 F.3d 504, 508-09 (9th Cir. 1994); United States v. Rich, 580 F.2d 929, 934 (9th Cir. 1978). But dangerous is not the same as forbidden.1 Therefore, Thompson‘s decision to speak with Ayala may not have been wise, but it was not disastrous.2
Incidentally, the complaint‘s mere general pleading that there is some sort of nexus between the conversation in question and Ayala‘s decision not to testify is conclusory and insufficient. See Blantz v. Cal. Dep‘t of Corr. & Rehab., 727 F.3d 917, 926-27 (9th Cir. 2013); see also Iqbal, 556 U.S. at 686-87. That is especially true in the context of this case where, in fact, Ayala did appear at trial in response to a subpoena, and refused to testify on wholly different grounds—she, herself, was facing criminal charges and invoked her Fifth Amendment rights on that account. The district court was not required to accept the fantasy, which was based on nothing more than the complaint‘s information and belief assertion, that Ayala would have blithely incriminated herself were it not for the conversation she had with Thompson. See Burrage v. United States, 571 U.S. 204, 134 S.Ct. 881, 887-89 (2014) (but for causation); Blantz, 727 F.3d at 926-27 (conclusory information and belief allegations); Vavages, 151 F.3d at 1191 (but for causation).
Thus, I dissent from part 1.1 of the Discussion portion of the majority opinion.
B. Because I do not think that there was a proper allegation of a substantive violation, I also do not believe that a conspiracy was effectively alleged. See Lacey v. Maricopa County., 693 F.3d 896, 935 (9th Cir. 2012) (en banc). Furthermore, there is not even a shard of a fact to show that Thompson participated in any agreement to violate Park‘s constitutional rights. Even if she had committed a violation when she
In addition, while the majority basically contents itself with the reflection that in general a pleading of conspiracy on information and belief is enough if defendants have the information,4 I do not believe that that kind of conclusory pleading can suffice here. See Blantz, 727 F.3d at 926-27; see also Iqbal, 556 U.S. at 555-58. Were it otherwise, a party could evade the plausible-pleading standard by merely asserting information and belief and pointing to some parallel conduct. As it is, Thompson‘s phone call was a far cry from the filing of a criminal felony complaint by another agency and prosecutor, even though they both involved Ayala.
Thus, I dissent from part II of the Discussion portion of the majority opinion.
C. As I read the majority opinion (Discussion portion part 1.2), it seems to declare that an acquittal may or may not ultimately preclude a constitutional claim; that will depend on the facts and circumstances of the particular case.5 If I read it aright, I do not disagree in principle with that general proposition. However, as I have already indicated, in this case the complaint does not spell out a constitutional claim in the first place. Thus, I need not and do not opine on what the result should be if Park had adequately pled that her rights had been violated by Thompson‘s conversation with Ayala.
D. I agree with the majority that the issue of qualified immunity should be remanded to the district court for its consideration in the first instance. See, e.g., Harlow v. Fitzgerald, 457 U.S. 800, 819-20 (1982); Price v. Hawaii, 939 F.2d 702, 707 (9th Cir. 1991).
Thus, I respectfully concur in part and dissent in part.