This is an appeal from a judgment of the United States District Court for the Eastern District of New York (Carol Bagley Amon, Chief Judge) in an action involving the alleged fraudulent alteration of evidence by the defendants, John Fusto, then
The defendants suspected that Morse, a dentist with a practice in Brooklyn, New York, was perpetrating Medicaid fraud by submitting false billing to Medicaid. During the course of their investigation, the defendants conducted an audit of Morse’s billings and created spreadsheet summary charts containing the billing details of eight of his patients. Those charts were later presented to a Kings County, New York, grand jury. Based in part on that evidence, Morse was indicted by the grand jury on one count of Grand Larceny in the First Degree and eleven counts of Offering a False Instrument for Filing in the First Degree. Although Morse was later acquitted of all charges, as a result of the prosecution, he lost his dental practice and sustained other injuries.
After his acquittal, Morse filed the instant action against the defendants in federal district court in Brooklyn alleging that the defendants deprived him of his constitutional right to a fair trial by intentionally manipulating the information contained on the spreadsheet summary charts before they were presented to the grand jury in order to create the false impression that Morse billed Medicaid for dental services that he did not provide.
A jury rendered a verdict in his favor, and the defendants moved for judgment as a matter of law under Fed.R.Civ.P. 50 or, in the alternative, a new trial under Fed. R.Civ.P. 59. The district court concluded that one of the factual bases underpinning Morse’s claim was not sufficiently supported by the evidence to have been properly considered by the jury in reaching its verdict, but nonetheless denied both of the defendants’ motions.
. On appeal, the defendants principally contend that their conduct was not clearly prohibited by the Constitution, and that they are therefore entitled to qualified immunity as a matter of law. The defendants also assert that the district court should have ordered a new trial pursuant to the so-called general-verdict rule because the court decided as a matter of law that one of the three factual bases upon which Morse’s allegation that the defendants “falsefly] or fraudulently altered documents” rested lacked a legally sufficient basis in the evidence.'
We reject these challenges. As the district court held in a careful, detailed, and persuasive post-trial opinion, Morse v. Fusto, No. 07-CV-4793,
The Investigation and Prosecution of Dr. Morse
In 2002, the MFCU initiated an investigation into the professional financial affairs of Morse, a dentist, then practicing with another dentist in the Park Slope neighborhood of Brooklyn as “580 Dental, P.C.” The defendant John Fusto, then a Special Assistant Attorney General with the MFCU, was assigned to the case, as was the defendant Jose Castillo, then an MFCU áudit-investigator. As part of the investigation, the defendants audited Morse’s 2000-2002 patient billings, creating summaries of the billings designed to highlight those they considered suspicious. They also interviewed Morse’s patients, inquiring into the professional services that he had rendered to them and the related billings for those services.
The investigation drew to a close in late 2005. In March 2006, Fusto presented to a Kings County grand jury evidence of Morse’s allegedly unlawful billing practices. In the course of the grand jury proceedings, Fusto called Castillo as a witness to testify about a billings analysis that Castillo had prepared which, according to the defendants, showed that through illegal billing, Morse had unlawfully obtained some $1.1 million from New York State Medicaid. Several of Morse’s former patients also testified that he had not performed denture work for them, despite billings that appeared to indicate otherwise. Finally, and central to the present case, Fusto presented two exhibits, denominated in those proceedings as Exhibit 7 and Exhibit 11, to the grand jury. They contained spreadsheet summary charts purporting to detail the billings associated with eight of Morse’s patients. The summary charts contained the following fields:
• Client identification number (denominated “CIN NUMBER”)
• Patient last name
• Patient first name
• Amount paid
• Date of service
• Invoice number
• Julian date2
• Procedure code
• Procedure description
Fusto called Dr. Linda DeLuca, a dentist, to testify as to her opinion of the legitimacy of the billings based on the summaries contained in these exhibits. Dr. DeLuca testified that the billings struck her as unusual and excessive.
On April 5, 2006, the grand jury returned an indictment charging Morse with one count of Grand Larceny in the First Degree in violation of New York Penal Law section 155.42 and eleven counts of Offering a False Instrument For Filing in violation of New York Penal Law section 175.35. The charges were predicated on Morse’s alleged theft of $1.1 million from Medicaid and his alleged submission of false written statements to the Computer Sciences Corporation, a fiscal agent of the State of New York, with intent to defraud the State of New York, respectively.
Morse was acquitted of these charges after an August 2007 bench trial before Kings County Supreme Court Justice John Walsh. Despite his ultimate acquittal, Morse suffered serious financial, reputa-
The Action Commenced against the Defendants
On November 16, 2007, following his acquittal, Morse initiated the instant action in the United States District Court for the Eastern District of New York, asserting claims of, inter alia, false arrest, malicious prosecution, and denial of the right to a fair trial. On November 23, 2009, the defendants moved for partial summary judgment under Fed.R.Civ.P. 56(b). The district court granted the defendants’ motion for summary judgment on the malicious prosecution and false arrest claims, but denied it with respect to the fabrication of evidence claim.
At trial, Morse focused his fabrication of evidence claim on the billing spreadsheet summaries — labeled Exhibits 7 and 11— that Castillo and Fusto had prepared during the investigation. Morse argued that the defendants knowingly created the billing summaries to create the false impression that he had billed Medicaid for services that he had not in fact rendered. He pointed to three examples of allegedly false or misleading assertions of “facts” included in these summaries:
• The Stacy Rodriguez “Triple Billing Claim”: The billing summary for patient Stacy Rodriguez included nine entries, each purportedly representing a distinct procedure performed on the same day, even though records show that Morse billed Medicaid for only three such procedures.
• The Edwin Gonzalez “Super Patient Claim”: The billing summary for patient “Edwin Gonzalez!’ contained the billing details for services rendered to three different patients, all named Edwin Gonzalez. The records with respect to those three patients were merged and aggregated to look as though they belonged to one “super patient.”
• The Tooth Number Problem: For all of the patients listed in the billing summaries, a “tooth number” field was excluded from the spreadsheet. This created the impression that Morse billed Medicaid repeatedly for the same procedure when in fact Morse was billing per tooth for a procedure performed on different teeth of the same patient.
At the close of trial, the jury was given a verdict sheet which asked whether, based on a preponderance of the evidence, each defendant was liable for creating “false or fraudulently altered documents,” “consisting of [the allegedly fraudulent documents], knowing that such information was false or fraudulent,” and, if so, whether that evidence was “material” to “the grand jury’s decision to indict.” Verdict Sheet at 1; J.A. 557.
The court also instructed the jury as to the defendants’ requisite state of mind:
Plaintiff must show that the defendants acted knowingly or with reckless disregard. An act is done knowingly if it is done voluntarily and deliberately and not because of mistake, accident, negligence or other innocent reason. An act is done with reckless disregard if it is done in conscious disregard of its known probable consequences. The plaintiff does not need to show that the defendants specifically intended to deprive him of a constitutional right.
Jury Inst, at 9; J.A. 546.
The court defined “false” and “fraudulent” as follows:
A document is false if it is untrue when made and was known to be untrue when made by the person making it or causing it to be made. A document is fraudulent if it is falsely made with intent to deceive. Deceitful half-truths or the deliberate concealment of material facts may also constitute false or fraudulent information.
Id. The court also instructed the jury that “false or fraudulent evidence was material,” if “it was likely to influence the [grand] jury’s decision to indict.” Id.
The jury returned a verdict in favor of Morse based on its finding that both defendants knowingly created “false or fraudulently altered documents.” Verdict Sheet at 1; J.A. 557. The jury awarded Morse $6,724,936 in compensatory damages — $1,738,941 for past lost earnings; $2,490,995 for future lost earnings; and $2,500,000 for “mental/emotional pain and suffering.” Verdict Sheet at 2; J.A. 558. It further awarded Morse $1,000,000 in punitive damages — $750,000 of which was against Fusto, and the remaining $250,000 of which was against Castillo.
After the jury rendered its verdict, the defendants moved for judgment as a matter of law (“JMOL”) pursuant to Fed.R.Civ.P. 50, or a new trial pursuant to Fed.R.Civ.P. 59, or a reduction in the damage award. The defendants argued that they were entitled to JMOL with respect to liability on three grounds: first, the contents of the spreadsheet summary charts were facially true and thus could not have been reasonably found to be either “false or fraudulent”; second, the defendants are entitled to qualified immunity; and third, the defendants are entitled to absolute immunity.
The district court concluded that “as a matter of law, the Stacy Rodriguez page [was] not a ‘false’ or ‘fraudulently altered’ document that can support a fabrication of evidence claim.” Morse,
Addressing the defendants’ assertion that they were entitled to qualified immunity, the district court concluded that “Ricciuti [v. N.Y.C. Transit Auth.,
With respect to the defendants’ absolute immunity argument, the district court noted that although a prosecutor’s preparations “for the initiation of judicial proceedings or for trial” are protected by absolute immunity, “[a] prosecutor’s ... investigatory functions that do not relate to an advocate’s preparation for the initiation of a prosecution ... are not entitled to absolute immunity.” Id.,
Finally, the court rejected the defendants’ motion for a new trial as to liability under Fed.R.Civ.P. 59, and granted the defendants’ motion for a new trial with respect to damages unless Morse elected to accept a remitted compensatory damage award of $4,624,936 and a remitted punitive damage award of $100,000. Id.,
The defendants appeal from the district court’s denial of qualified immunity and from its declining to order a new trial despite its conclusion that one of the factual bases offered in support of Morse’s claims lacked sufficient evidentiary sup
DISCUSSION
I. Standard of Review
We review de novo a district court’s ruling on a motion for JMOL pursuant to Fed.R.Civ.P. 50, “applying the same standard as the district court.” Cash v. Cty. of Erie,
That standard places a “particularly heavy” burden on the movant where, as here, “the jury has deliberated in the case and actually returned its verdict” in favor of the non-movant. Cross v. N.Y.C. Transit Auth.,
II. Qualified Immunity
“Qualified immunity protects public officials performing discretionary functions from personal liability in a civil suit for damages insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Lore v. City of Syracuse,
The defendants argue that they are entitled to qualified immunity as a matter of law. First, they assert that they had no constitutional duty to include all material information in the spreadsheet summaries. They rely principally on United States v. Williams,
A. The Constitutional Duty of a Prosecutor
“It is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge.” Williams,
Notwithstai~ding the legally permissible one-sided nature of grand jury proceedings, everyone possesses the additional and distinct “right not to be deprived of liberty as a result of the fabrication of evidence by a government officer acting in an investigating capacity.”
We conclude that the omissions in this case were properly considered under the rubric of Zakrey, under which government officials may be held liable for fabricating evidence through false statements or omissions that are both material and made knowingly. In Zakrey, the plaintiff, a police officer, brought suit against an Assistant United States Attorney named Martin Coffey, for conspiring to manufacture false evidence against the plaintiff. Coffey “influenced [the] testimony” of a prospective federal grand jury witness and “attempted to pressure and bribe [another
Here, the jury found that by making material omissions in the billing summaries, the defendants in effect falsified them, and they did so knowingly and as part of their investigation. Morse argues that this finding places his ease on all fours with Zahrey, requiring us to affirm the judgment of the district court. We agree.
As we have observed, “false information likely to influence a jury’s decision ... violates the accused’s constitutional right to a fair trial,” because to hold otherwise, “works an unacceptable ‘corruption of the truth-seeking function of the trial process.’ ” Ricciuti,
The defendants ask us to distinguish Manganiello from the instant case on the basis that Manganiello involved a claim against a police officer and not a prosecutor. But we find nothing in Manganiello to suggest a distinction between prosecutors acting in their investigative capacity and police officers acting in theirs, at least in the circumstances presented by the case at bar. To the contrary, the Supreme Court has observed that “[w]hen a prosecutor performs the investigative functions normally performed by a detective or police officer, it is neither appropriate nor justifiable that, for the same act, immunity should protect the one and not the other.” Buckley,
Alternatively, the defendants ask us to distinguish Manganiello because it involved both affirmative misrepresentations and misleading omissions, without directly addressing the distinction between the two. But Manganiello does not suggest that deliberate omissions of material facts are qualitatively different from affirmative misstatements, or that omissions alone cannot support a successful section 1983 action for using fabricated evidence to deprive a plaintiff of his constitutional rights. Nor do we see any reason to distinguish the two under the circumstances of this case. Indeed, both threaten the integrity of the judicial process by injecting it with
As the district court observed, “other areas of law ... make no legal distinction between misleading statements or omissions and affirmative falsehoods.” Morse,
The defendants complain that “[t]he threat of liability for incomplete or under-inclusive record or transaction summaries will potentially paralyze prosecutors’ investigations and preparations for the grand jury.” Appellants’ Br. 39. This would indeed be a matter of grave concerri if it were so. But we foresee no significant barriers to the pursuit of successful prosecutions that would result from the defendants’ liability in this case. It ought not to be difficult, even for the most single-minded of prosecutors, to avoid misconduct of the scope and seriousness of that in which the defendants engaged: 1) “creating] false or fraudulently altered documents,” Verdict Sheet at 1, J.A. 557; 2) in the course of their performance of “investigatory functions,” Morse,
B. Defendants’ Remaining Arguments in Favor of Qualified Immunity
We find the defendants’ remaining arguments in favor of qualified immunity also to be unpersuasive. The defendants assert that the district court’s requirement to present evidence “as it is, not in an altered form that presents an inaccurate picture of the character of the evidence,” Morse,
To the extent that the defendants insist that the summaries were “factually accurate,” Appellants’ Br. 42, they ask us to disregard the jury’s findings to the contrary. In light of the existence of a firm factual foundation for the jury’s finding on this score, this is something we plainly cannot do. See Tennant v. Peona & Pekin Union Railway,
C. The Violation of Clearly Established Law
Having concluded that the defendants’ falsifications constituted a violation of Morse’s constitutional rights, we must next determine whether the falsifications violated clearly established law that sufficiently warned the defendants that their conduct was unconstitutional. We conclude that they did.
“Qualified immunity protects officials from liability for civil damages as long as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” Taravella v. Town of Wolcott,
We conclude that the right in question was clearly established such that the defendants are not entitled to qualified immunity. Although there is no prior decision of ours precisely equating the fraudulent omission of factual information from a document with the affirmative perpetration of a falsehood, Ricciuti and its progeny, including Zahrey, clearly establish that “qualified immunity is unavailable on a claim for denial of the right to a fair trial where that claim is premised on proof that a defendant knowingly fabricated evidence and where a reasonable jury could so find.” Morse,
III. A New Trial under the General-Verdict Rule
The defendants argue that the district court erred when it failed to order
“The Supreme Court decades ago announced the so-called general verdict rule, that ‘a new trial will be required’ where ‘there is no way to know that [an] invalid claim.... was not the sole basis for [a] verdict.’ ” Chowdhury v. WorldTel Bangl. Holding, Ltd.,
This Court has applied the general verdict rule both in cases where one of several legal theories of liability was improperly submitted to the jury, see, e.g., Morrissey v. Nat’l Mar. Union of Am.,544 F.2d 19 , 25-27 (2d Cir.1976) (applying rule where district court charged jury that defendant could be found liable under either one of two statutory sections, one of which was inapplicable as a matter of law), and also in cases where a single legal theory was submitted to the jury, but one of several sets of facts presented as adequate to prove liability was found insufficient as a matter of law, see, e.g., O’Neill v. Krzeminski839 F.2d 9 , 11-12 (2d Cir.1988) (applying rule where defendant police officer could not have been liable to plaintiff for failing to prevent injuries resulting from spontaneous beating delivered by other defendant officers, but could have been liable for failing to prevent subsequent mistreatment at the hands of one of those defendants).
AIG Global Sec. Lending Corp. v. Banc of Am. Sec., LLC,
In the case before us, the jury returned a general verdict to the effect that the defendants had “created false or fraudulently altered documents.” Morse,
Whether the general-verdict rule is subject to waiver is an issue of first impression in this Court.
The defendants failed to request, prior to jury deliberations, that the district court submit to the jury a special verdict 'form requiring findings “on each issue of fact” under Fed.R.Civ.P. 49(a), or written questions accompanying the form for a general verdict under Fed.R.Civ.P. 49(b). Nor did the defendants make a timely objection to the general verdict or jury instructions as they were given. The Federal Rules require that an objection relating to a general verdict “that is traced to an alleged error in the jury instruction or verdict sheet,” as it is in this case, must be “made under Fed.R.Civ.P. 51.... [However,] to avail itself of relief under this Rule, a party must object before the jury retires to deliberate.” Jarvis v. Ford Motor Co.,
To permit the defendants to rely on the general-verdict rule when they elected not to avail themselves of the procedural remedies provided by the Federal Rules would allow them “another opportunity to assign as error an allegedly incorrect charge simply because the jury’s verdict comports with the trial court’s instructions.” Id. (internal quotation marks omitted). We conclude that by failing to seek a special verdict or interrogatories on each of the three sets of facts submitted to the jury in support of Morse’s legal theory of the case, or otherwise object to the verdict sheet or jury instructions, the defendants waived the ability to invoke the general-verdict rule in seeking, post-verdict, a new trial based on the failure of Morse adequately to support one of the three sets of facts on which the general verdict was based.
The Ninth Circuit, in McCord v. Maguire,
[L]itigants have the responsibility to request or submit special verdict forms. Litigants like [the defendant] who wish to challenge the sufficiency of the evidence as to some, but not all, specifications [presented to the jury] must present an appropriate record for review by asking the jury to make separate factual determinations as to each specification. Any other rule would unnecessarily jeopardize jury verdicts that are otherwise fully supported by the record on the mere theoretical possibility that the jury based its decision on unsupported specifications. We will not allow litigants to play procedural brinkmanship with the jury system and take advantage of uncertainties they could well have avoided.
Some twenty years later, the United States District Court for the Southern District of New York cited McCord for the proposition that “[w]here there are multiple factual bases for liability on a single claim, one or more of which is found
CONCLUSION
For the foregoing reasons, we AFFIRM the judgment of the district court.
Notes
. "[A] Julian date or day number is the number of elapsed days since the beginning of a cycle of 7,980 years invented by Joseph Scali-ger in 1583. The purpose of the system is to make it easy to compute an integer (whole number) difference between one calendar date and another calendar date.” Julian date, Whatls.com, http://whatis.techtarget.com/ definition/Julian-date (last visited Sept. 3, 2015).
. Morse filed his second amended complaint on July 5, 2011, while the defendants’ motion for summary judgment was still pending. The district court's partial grant of summary judgment was made with respect to the second amended complaint. The second amended complaint also named as defendants “Eliot Spitzer, Individually” and "Robert H. Flynn, Individually.” J.A. 149. The district court dismissed the claims against Flynn during its summary judgment proceedings. The district court dismissed the claims against Spitzer in a separate order filed January 15, 2013.
. The instruction thus used the term “knowingly or with reckless disregard." Jury Inst, at 9; J.A. 546 (emphasis added). The verdict sheet that the jury later completed reflected their finding that the defendants "created false or fraudulently altered documents ... knowing that such information was false or fraudulent.” Verdict Sheet at 1, J.A. 557 (emphasis added). On appeal, the defendants do not contest the district court’s reference to “reckless disregard” in the instructions, and we therefore do not address the issue of its propriety or materiality.
. The facts underlying the amount of the award are set forth by the district court in some detail in Morse,
Morse’s travails are reminiscent of the widely publicized 1987 acquittal of Raymond J. Donovan, a then-former United States Secretary of Labor, on New York State fraud and grand larceny charges. After the verdict, he famously remarked: “The question is ... [:] Which office do I go to to get my reputation back? Who will reimburse my company for the economic jail it has been in for two and a half years?” Selwyn Raab, Donovan Cleared of Fraud Charges by Jury in Bronx, N.Y. Times (May 26, 1987), http://www.nytimes.com/ 1987/05/26/nyregion/ donovan-cleared-of-fraud-charges-by-jury-in-bronx.html? pagewanted= 1.
. The defendants do not appeal from the district court’s ruling that they are not entitled to absolute immunity as a matter of law or the district court’s ruling on their Fed.R.Civ.P. 59 motion. Accordingly, we do not review the jury’s finding that the billing summaries were created "earlier as part of the investigation” rather than "in connection with the preparation for the presentation of evidence to the grand jury.” For the same reason, we need not (and do not) decide whether the district court erred in denying defendants the protections of absolute immunity. Accordingly, we proceed on the assumption that the defendants are entitled to qualified immunity, or no immunity at all.
. The district court noted that this Circuit has been “inconsistent as to whether” fabrication ' of evidence claims "arise[ ] under the Sixth Amendment right to a fair and speedy trial, or under the due process clauses of the Fifth and Fourteenth Amendments.” Morse v. Spitzer, No. 07-CV-4793,
. Similarly, the law of libel has long recognized that omissions alone can render a statement false. In Memphis Publishing Co. v. Nichols,
. We appear at least once to have explicitly declined to decide this issue. See O'Neill v. Krzeminski,
. Although the district court concluded the Stacy Rodriguez page could not support a fabrication of the evidence claim, it found the remaining evidence was sufficient to support the jury’s verdict irrespective of who should prevail of the waiver issue.
. The defendants’ post-trial motions challenged the evidentiary support for all of the