Smith v. Almada

asylum suggested an claim. The IJ thus Anthony SMITH; Smith, W. Theresa actually

that Liu focus on threats directed Plaintiffs-Appellants, testimony at her because further about her Gong practice of Falun would be irrele- hearing, however, vant. At the second testimony ALMADA,

IJ decided to on this reopen Robert Santa Monica Police point give Sergeant, to allow Liu to her full account Defendant-Appellee. Thus, Gong of her Falun involvement. 09-55334, Nos. 09-55346. initial assuming even actions IJ’s were improper, we conclude Liu did not Appeals, United States requisite prejudice suffer the establish Ninth Circuit. process due violation. See id. at 728 Argued and June Submitted 2010. (“Prejudice rights occurs when of the alien have in such a transgressed way been Filed March likely as the results impact proceedings.”). argument,

As to Liu’s we second

reviewed and found no the record assumed a improperly prosecu- the IJ actively questioning

torial role. Liu to

determine inconsistencies whether could resolved, “predis-

be not show a the IJ did

position testimony Liu’s discredit”

would cause us to question impar- IJ’s INS,

tiality. Garrovillas v. (9th Cir.1998). Again, Liu’s pro- due rights

cess were not violated.

CONCLUSION

We hold that evidence sup- substantial

ports credibility the IJ’s adverse determi-

nation, BIA, adopted by and thus deny petition asylum

Liu’s as to her and with-

holding grant of removal claims. We Liu’s

petition as to the frivolousness finding,

vacate that remand finding and to the BIA proceedings

for further consistent with opinion.

this shall parties bear their

own appeal. costs on part; part; DENIED

GRANTED in

and REMANDED. GWIN;

Opinion by Judge Concurrence GOULD; by Judge Concurrence GWIN; by Judge Dissent D.W. NELSON. ORDER opinion The and dissent in the above- captioned matter filed on October published at 623 F.3d is WITH- DRAWN. The superseding opinion, dis- sent, and concurrences shall be filed con- currently with this order. parties shall have days fourteen entry

from of the superseding opinion to petitions file for rehearing petitions for rehearing en above-captioned banc matter.

IT IS SO ORDERED.

GWIN, Judge: District OPINION Anthony Plaintiffs Smith and his wife Theresa appeal Smith the district court’s grant of summary judgment to Defendant Santa Monica Police Al- Robert arrest, mada on Smith’s claims for false prosecution, malicious and suppression of Vottero, MA, Springfield, Brett J. exculpatory evidence and on Theresa appellants. process substantive due claim for Serritella, Anthony P. Deputy City At- deprivation of sup- familial relations.1 In Monica, torney, CA, appellee. Santa for the port Almada, his action claims that Almada failed to dis- materially close exculpatory evidence including Smith’s criminal arson trial — key false identification witness that gloating at the arson scene in Before: D.W. NELSON and RONALD the following Although months the fire. GOULD, M. Judges, Circuit and JAMES Smith’s first trial resulted a mistrial GWIN, Judge.* S. District jury after the was unable reach ver- * Gwin, The Honorable S. James United States her husband's claims. Because we affirm the claims, District for the Northern District of dismissal we of Smith’s also affirm Ohio, sitting by designation. the dismissal of his wife’s claims. parties agree 1. The that Theresa Smith's entirely dependent claim is on the survival of Smith,” University to “Aundrea dressed

diet, says that access to he Antho- addressed to envelope Alabama judge not caused would have evidence Smith, envelope Dimes ad- a March of ny have or would warrant an arrest to issue Smith, a handwritten Anthony jurisdic- dressed to acquittal. in an We resulted “the beloved card addressed to greeting affirm and we U.S.C. tion under 28 cata- Clothing family,” a Rochester non-dis- Smith arguably finding after Smith, a Los to Theresa log have resulted addressed would not closed mailer addressed Angeles Music Center outcome. a different Smith, Taper Forum Anthony and a Mark The Anthony to Smith. mailer addressed any mail from other did not include bottle February early morning hours In the also found investigators The individuals. Sofas, Simply inside a fire started Beverly of a Hills burnt business card by Marilyn Nel- store owned a furniture for woman who worked Smith. largely de- The fire and smoke son. inventory, causing stroyed the store’s control, after the fire was under Soon damage. million in more than $2.8 Police Santa Monica Defendant de- investigating, inspectors fire After investigation. took over the Robert Almada used three five- that an arsonist termined previous four investigated Almada had gasoline bottles filled with gallon water Lincoln behind 2408 dumpsters fires set rolled-up periodicals, with and stuffed in October and November Boulevard gasoline-soaked other newspapers, and at 2314 Lincoln Ave- Simply Sofas stood fire. “firebombs” to start the Un- mail as dumpster to one of the regards nue. With bottle, the remains of one der the melted fires, that the “fire reported Almada irregularly also found an investigators “possible a chemical might be source” matched a asphalt that shaped piece incendiary plastic in a con- device based from the alley in the across the street hole to those earlier fires tainer.” Witnesses investigators con- furniture store. The Nelson) described (including store owner the store that the arsonist broke cluded suspects, resembling none Smith. different window, likely asphalt, placed and with investigation February of the In his just on a table gasoline-filled bottles fire, Sergeant Almada interviewed They the ar- the window. believed inside she, Nelson, daughter who said that her ignited the fires. sonist then (both partners and son-in-law business that the in- gasoline-soaked papers Nelson), and a clerk had the store with bottles found inside the melted vestigators told keys to the store. Nelson mail ad- pieces numerous included and her son-in-law closed Almada that she residence Appellant Smith’s dressed fire and early evening the store July a five-year period, including: over a all of the doors. her son-in-law locked magazine News addressed 1997 U.S. Nelson, business was Smith, According to her Anthony a December Annual sales Anthony healthy financial condition: magazine addressed News million, profits with Smith, Motorcycle approximately were January $3 a Rider $400,000. Smith, The store had almost no Anthony around magazine addressed had never made business- apart- debt. Nelson notice Smith’s 2002 tenant issued Nelson claim. mail fire-related insurance express a 2002 envel- or complex, ment Smith, did, however, proceeds receive insurance by Anthony signed for ope fire. February JCPenney catalog ad- for Fall/Winter interview, learning of the initial Ser- broken item. After At the time Smith check, Nelson if she could had not lost the first but instead geant Almada asked it, had cashed Nelson anyone stopped payment a motive on think of the second check. Nelson said a former em- she felt arson. Nelson mentioned trying that Smith was to intimidate her recently fired ployee whom she had paying into than names, more she owed him. few other but Smith. In addition—and central to Smith’s Nevertheless, Sergeant began Almada against Sergeant claims Almada—Nelson investigation on because to focus his claimed to have seen front of her over a -pieces long received mail-— boarded-up store on the afternoon of June variety period of time and from 28, 2003, “laughing smiling” he as sources—had been used as a wick to start pointed origin. to the area of the fire’s Simply ques- the fire at Sofas. Almada However, Sergeant investigation Almada’s Smith, selling tioned who items described ultimately showed Nelson’s statement consignment through Nelson’s store was false: Sergeant Almada viewed a se- and stated that he and Nelson had a “mi- curity tape from apartment build- January arising nor issue” in out of a ing showing that Smith was at home on stop-payment item and a broken order day June Nelson claimed to placed that Nelson had on a check paid to have seen him. Smith. Sergeant Almada confronted Smith with Sergeant Almada then circled back to him, against the evidence especially the speak with Nelson. After Almada told mailings evidence that letters and to Smith that a suspect, Nelson Smith was Nelson had been used as a wick for the firebombs. an described “uncomfortable and tense” According Sergeant Almada, upon January dispute with Smith. The , learning of the scale of the fire and the dispute consigned centered over whether a him, against over, slumped Smith damaged item was or after being before began cry, apologized repeatedly. and sold to Nelson. Nelson said that when differently, Smith recalls the conversation dropped by pick her store to up claiming Sergeant that Almada told him items, payment consignment for his she firefighters fatally injured that were in the consignment told Smith that one of his fire and that he cried and said he was items had been before broken Smith deliv- sorry for their death but never that said store, it ered to Nelson’s and that she he was gave explana- involved. Smith no pay

would not him the full amount for the five-year tion for how his mail from over But item. Smith claimed that one of Nel- period firebombs, inup ended but con- employees son’s broke item and de- deny tinued to involvement in the fire. manded that it. pay Nelson Nelson Sergeant Almada did not arrest Smith at said that during Smith’s demeanor their that time. argument threatening frightening and finger Instead, and that he stuck his in Sergeant her face. dep- Almada met with dispute, To end the promised uty attorney Daly Nelson district Jean to discuss give an additional against Daly check for the the case Smith. does not broken item. Smith’s assistant later discussing prior dumpster called recall fires store, Nelson and Sergeant said Smith had lost the behind Nelson’s Almada check, first previous so Nelson wrote Smith a sec- claims that he mentioned the fires original prosecutor Daly ond check for the value of the but and-said he doubt- consignment plus they February check the value of the ed that were related to the although “there are finding § not tell Sergeant Almada did

2003 fire. suggest that certainly strong inferences to of Smith’s report false Daly about Nelson’s this,” prosecution Sergeant Alma- Mr. Smith did hearing After gloating. Smith, a unanimous ver- be to obtain of the evidence never able da’s account Only that Ser- after this dismissal was Smith Daly recommended dict. prosecutor custody. a warrant for Smith’s from Almada obtain released geant arrest. Thereafter, Sergeant sued Smiths sought Almada Sergeant state

Consequently, Almada under U.S.C. Angeles Supe- prose- from Los malicious an arrest warrant for false arrest and court Neidorf, who Judge Richard then removed to rior Court cution. The case was Almada Sergeant Although the authorized the warrant. district court. federal Smith, Daly prosecutor any arrested make distinct then Smiths did not complaint charging Smith court complaint, filed a criminal claim in their the district objection not make bail after with arson. Smith did Almada’s overruled Defendant his jail through after his arrest and remained claim was made discovery completed first trial June had been and should therefore not be considered. trial, Nelson testified At Smith’s first with Smith January dispute that her discovery, grant- the district court After her. She said summary “shocked” and “intimidated” judgment Almada’s ed “very threat- claim, looked at her that Smith On the false arrest motion. ening” “pushed finger manner and his Almada court held district face,” a my to and that as result immunity almost qualified entitled to because “frightened” “very and intimidat- she was reasonably officer could competent attorney knew about ed.” Smith’s defense cause existed to probable determined the attempted to introduce evidence of for arson. On the malicious arrest Smith dumpster pre- fire—which claim, October 2002 court con- prosecution the district dated altercation with Nelson—but Smith’s cluded that Almada did not prosecution’s the granted the trial court material false informa- knowingly submit to exclude the evidence. motion in limine Finally, on the prosecution. tion to the exculpatory evidence failure to disclose of the first At the conclusion claim, alleg- that the the district court held verdict, with five jury could not reach fact that Nel- edly withheld evidence—the jurors and seven jurors voting “guilty” testimony gloating at son’s about Smith’s voting guilty.” “not crime scene was false—would not have mistrial, pros- court declared a After the trial. materially affected Smith’s Daly reviewed the case with the ecutor appeal This followed. attorney, ap- deputy head district who retry proved Daly’s recommendation to II custody. remained in

the case. Smith review de novo a district court’s At second trial December We See, summary judgment. e.g., substantially grant evi- 2004—on same Med., F.3d reach a Olsen v. Idaho State Bd. 363 jury again dence—the could not Cir.2004). (9th verdict, Accordingly, we juror voting one this time with determine, viewing the jurors voting acquit. must convict and eleven Smith, whether light case most favorable The trial court then dismissed the of material fact exist any genuine Penal issues under California Code Smith however, correctly does not contend that whether the district court Smith Ser- warrant geant application Id. at 922. Almada’s lacked the substantive law. applied Instead, on its face. probable cause argues Almada misled A magistrate judge applying when for the complaint, his amended With warrant, magistrate and had the consid- malicious claims of false arrest and made the facts that magistrate ered all of claim—which Smith’s first prosecution. probable have found would not cause. qualified court dismissed on the district To maintain a false arrest claim immunity Sergeant Al- grounds that—is judicial deception, a plaintiff for must show violated his Amendment mada Fourth applied who for officer the arrest by arresting probable him rights without “deliberately recklessly warrant or made cause. false statements omissions that were may bring Although private party finding probable material cause.” to an pursuant § 1983 claim for an arrest Moore, (9th KRL v. warrant, issued arrest see Mal improperly Cir.2004). The materiality element—a Briggs, 475 ley v. U.S. court, question requires see id.— (1986), im 1092, 89 L.Ed.2d 271 qualified plaintiff mag to demonstrate that “the munity shields the from arresting officer istrate would not have issued the warrant that, he or she suit when “makes decision redacted, information false or omitted deficient, if constitutionally reason even restored.” City information Lombardi v. ably misapprehends governing the law (9th Cajon, El F.3d Haugen, 543 circumstances.” Brosseau v. Cir.1997). example, For in Ewing v. L.Ed.2d Stockton, Cir.2009), 588 F.3d 1218 (2004). The immunizes rea doctrine that a application’s we concluded warrant mistakes, thus officers to freeing sonable two false statements about plaintiff challenging “make difficult sit decisions independent, were not material because an liability without allowing uations” fear of description reliable source’s detailed “disrupt[] performance the effective of plaintiff incident and identification of the Auker, v. public them duties.” Mueller at the were sufficient to scene establish (9th Cir.2009). 576 F.3d Id. at probable cause. 1224-25. And Lombardi, although drug search warrant In a garden-variety false arrest application failed mention that the two challenging probable claim the cause for confidential informants —whose statements arrest, facially if the an arrest warrant only were the evidence that plaintiff valid, arresting enjoys qualified officer had in his drugs grind home-—-had axes to immunity application unless “the warrant with we plaintiff, nevertheless held lacking probable indicia of cause as is so that the omitted information immate existing official belief in un to render its rial because informants’ statements ” .... at 344- Malley, reasonable detailed, given independently, were were 1092; v. see also KRL Estate personal observation, were based were Moore, (9th 512 F.3d Cir. of another, by one corroborated and were (“[A]n 2008) officer or exe prepares who against penal one informant’s interests. lacking probable cutes warrant cause is 117 F.3d at 1126-27. qualified unless no immunity entitled Here, would competence officer reasonable Smith contends that warrant.”). Here, requested magistrate not have ar- issued the Lombardi, warrant,” 117 F.3d at we Almada’s warrant Sergeant if rest warrant properly court the district repre- included false conclude had not application summary judgment against Smith independently granted Nelson had sentations —that and that arrest claim. dispute with Smith on his false recalled her a tacit ad- apologies were Smith’s tearful B in- instead had to the crime—but

mission (1) dumpster the details of the four cluded claim is that Smith’s second altercation predating fires and failure to Almada’s false statements (2) Feb- Nelson, suspects other prose- material information to disclose fire, fact that Nel- ruary prosecu- malicious cutor caused Smith’s falsely claimed to have seen Smith son tion. months gloating at the crime scene several may main A criminal defendant fire. after the claim not prosecution tain malicious Almada falsified Yet even also oth against prosecutors but (as information and omitted this including police officers and investi ers— contends), report the corrected and war- wrongfully prose caused his gators —who would still have contained application rant County Santa cution. See Galbraith cause probable to establish facts sufficient (9th Cir.2002). Clara, 1119, 1126 307 F.3d First, for arson. even to arrest Smith for malicious To maintain a 1983 action testimony pay- about the without Nelson’s that “the prosecution, plaintiff must show with Smith over his con- dispute ment malice and prosecuted defendants her with than one items that occurred less signed cause, they did probable without the fire—which would have month before spe her purpose denying [a] so for the light of Nelson’s false been less credible right.” cific constitutional Freeman gloating Sergeant report about Smith’s — (9th Ana, City 68 F.3d Santa report still would have Almada’s corrected Cir.1995); see also Lassiter v. own admission of contained Smith’s Bremerton, 1049, 1054-55 And, importantly, Sergeant more dispute. Cir.2009) (“[Pjrobable an cause is absolute report Almada’s corrected would still have prosecution.”). defense to malicious the firebombs contained recounted above, cor explained As even after pieces numerous of mail from over a five- recting allegedly for the false and omitted year period five-year pe- addressed over a in Sergeant information Almada’s warrant riod to and his at their resi- wife probable supported cause explain application, not dence—a fact that Smith could link- arrest for arson. For the same at trial. evidence Smith’s to Almada or This reason, probable supported cause Smith’s to the fire was sufficient to ing Smith Thus, cor prosecution. the district court any negative mag- inferences the overcome rectly granted summary judgment for Ser drawn from the earlier might istrate have geant prose Almada on Smith’s malicious dumpster fires. cution claim. facts, together These with the evidence motive, gave probable of a cause believe C Thus, of arson. guilty that Smith was Sergeant claim that Al- by Smith’s final changes suggested because the Smith rights by process mada violated his due Sergeant application Almada’s warrant exculpatory evi- failing that “a neu- to disclose material compel do not the conclusion Maryland, violation of tral not have issued the dence—in magistrate would that 10 L.Ed.2d 215 found “Almada is not liable under 83 S.Ct. (1963). Brady because the evidence he omitted or materially misstated would not have affect- prosecutors po- both and Brady requires ed the outcome criminal prosecu- investigators exculpatory to disclose lice agree. tion.” We Ten- to criminal defendants. See evidence Francisco, County nison v. & San § Brady-based Smith’s 1983 claim fails (9th Cir.2009) (allow- because he has not shown the with- against police inspector claim ing First, held evidence material. was the violation). a claim To state suspects’ descriptions evidence of the Brady, plaintiff allege must under previous dumpster fires is material (1) the withheld evidence was favorable nothing it does because undermine the it was or could either because i.e., strong physical the numer- evidence— (2) impeach, be used to the evidence was pieces linking ous Smith to the mail— suppressed government, February fire. it Nor does call into plaintiff. prejudiced nondisclosure question suggesting Smith’s mo- Greene, 263, 281-82, Strickler v. tive: Smith himself admitted that he had (1999). 1936, 144 L.Ed.2d 286 dispute with Nelson less than three weeks prejudice prong, Supreme As to before the fire. “strictly speaking, has stated that Second, several differences between the un- ‘Brady is never a real violation’ there February 2003 fire the earlier fires nondisclosure was so serious that less the undermine the inference that there there is a reasonable dumpster one arsonist or that one of the suppressed produced evidence would have dumpster February verdict.” Id. at arsonists started the different Although Sergeant 2003 fire. Almada re- ported dumpster may that one of the fires Here, contends that Al- Smith incendiary have been started with an de- previ- mada should have disclosed the four container, plastic vice in a the similarities dumpster ous fires occurred Octo- between the The dump- fires end there. 7, 2002, 15, 2002, November ber October quick ster fires occurred in succession over 25, 2002. In in- and November weeks; February a few 2003 fire oc- fires, vestigating these Almada received dumpster curred three later. The months suspect descriptions three that neither barely damaged building’s fires interi- matched each other nor matched Smith. or; February ravaged Simply 2003 fire says also that Almada should have dumpster Witnesses to the fires Sofas. that she disclosed Nelson’s false statement very suspects described various dif- gloating at the crime scene. saw Smith appearances, ferent suggesting there was argues that had Almada repeat might no offender who later information, jury disclosed this February started the fire. And Nel- acquitted first trial would have any identify dumpster son did not of the least, (or, very judge him at the suspects grudge against having fire as trial Smith’s first would have dismissed target to her—and thus a motive Nelson’s mistrial), immediately case after the store itself. jail thus Smith would not have remained until his second trial. for five months not importantly, More Smith does show considering any In that failure to disclose earlier fires Smith’s claim, any prosecu- Judge District Howard Matz had effect. Even without

940 Sergeant if Almada had disclosed fires, Even earlier Smith’s of the tion disclosure gloating account of Smith’s Nelson’s false knew the Octo attorney otherwise about before Smith’s first at the crime scene to introduce 15, sought fire and 2002 ber proba- “a reasonable we do not find In response that fire at trial. of evidence result.” Banks v. bility of a different regarding the offer of evidence to Smith’s Dretke, 668, 699, 1256, 124 540 U.S. S.Ct. fire, moved the prosecutor October 15 (2004). Almada’s failure 157 L.Ed.2d 1166 exclude evidence of trial court to state the evidence does not sufficient- disclose no “direct or cir there was fire because ly our confidence the out- undermine linking per the third evidence cumstantial Greene, trial. Strickler v. come of Smith’s perpetration to the actual son 1936, 144 Hall, 41 v. Cal.3d People crime.” See (1999) (plaintiff must show L.Ed.2d 286 (1986). 112, 718 P.2d Cal.Rptr. “there is a reasonable agreed and excluded state trial court of trial would have been differ- result Thus, attorney Smith’s the evidence. had been suppressed ent documents fire, earlier and evi of at least one knew defense”). Hence, to the be- disclosed likely inad earlier fires was dence of those Sergeant cause the evidence that Almada evidence law missible under California material, we hold failed to disclose was not sum, say that had we cannot any case. correctly granted court the district evidence of the Sergeant Almada disclosed Almada summary judgment fires, dumpster the outcome of earlier claim. Smith’s have been differ first trial would Smith’s ent. Ill above, we affirm the For the reasons are more troubled Ser

We summary grant judg- district court’s Almada’s failure to disclose Nelson’s geant Appellee Sergeant Almada. ment gloating at the false account Importantly, crime scene. Nelson did AFFIRMED.

testify gloating incident at about GOULD, Judge, concurring: Circuit Thus, trial. of her

Smith’s first false account could have been used opinion. I concur in Gwin’s I add for truthful impeach Nelson’s character separate point this concurrence to out that 608(b)(1). Fed.R.Evid. But ness. See in Judge I think the substantive idea testimony was not crucial at Nelson’s one, separate good Gwin’s concurrence is a Nelson’s account Although Smith’s trial. personally and that I would be inclined to dispute helped with Smith her business the united view of all circuits to follow a motive for Smith to commit the establish Morgan have reached issue. See v. arson, dispute himself admitted the (10th Gertz, Cir.1999); 166 F.3d Almada and Almada testified Satz, Flores v. 137 F.3d about his interviews with Smith. More Cir.1998); Rap- McCune Grand over, (6th Cir.1988). jury ids, even if the discredited all of F.2d But testimony, possessed it still Nelson’s Mosley City Chicago, cf. (7th Cir.2010) unexplained evidence link important (declining to decide the issue). pieces Nonetheless, to the numerous ing Smith fire: the on reconsideration five-year period ad at this time. of mail from over decline to reach the issue colleagues urged and his wife at their on our court dressed to Smith Several open, that the issue be left and I haven’t residence.

941 of.”) any urg- what a valid claim would Be- colleague a from consist seen statement cause Plaintiff Smith must show both a light the issue now. In ing that we decide right violation of constitutional and that colleagues from some objections of these material, the to disclose I be- failure was that a and because the substantive idea lieve we should have whether a addressed Brady prerequisite to a conviction is a right constitutional before impaired I appeal, to decide this claim is not needed moving any to whether violation was mate- my precedential support have withdrawn rial. it can for that so that be addressed idea in other case. fresh slate some finding In addition non-dis- insufficiently impor- closed evidence was GWIN, Judge, specially District tant in to undermine confidence the out-

concurring: trial, come of Smith’s would also find that Brady Smith cannot make a claim where for rehearing, With the motion no there has been conviction. Gould has withdrawn his concurrence claim be holding cannot makes a argument. novel has not made where there been a convic claims, Brady-based most 1983 avoiding con supports tion. Some wisdom conviction, plaintiff has suffered a criminal questions stitutional where can be cases arguably government failed because grounds. decided on See other Ashwander exculpating But jury disclose evidence. no TVA, 288, 347, 466, v. 297 56 80 U.S. S.Ct. Instead, says ever convicted Smith. (1936) (Brandeis, J., concurring) L.Ed. 688 by injured spent he was the five months hé (“The pass upon Court will constitu in jail after the first trial and until the although properly tional question present judge in his second trial dismissed record, by present ed there is also charges him. upon some which the case ground other our Three of sister circuits have found of’); may disposed be see also Citizens ultimately acquit- that a defendant who is — Com’n, United v. Election Federal ted cannot maintain a claim. See U.S.-, 876, 937, 130 S.Ct. 175 L.Ed.2d Gertz, (10th 1307, Morgan 166 1310 F.3d (2010) (Stevens, J., concurring part

753 Cir.1999) (“Regardless any of misconduct part.) dissenting by agents during before government however, we have recently, acquitted Until defendant who is cannot of required deprived right been to address the constitutional be said to been Satz, trial.”); addressing any issue 1983 to a fair 137 before Section Flores v. F.3d Katz, Cir.1998) (“Plaintiff 1275, immunity issue. See Saucier v. ... and, therefore, 2151, U.S. 121 S.Ct. 150 L.Ed.2d was never convicted did not (2001), by Calla effects of an trial. overruled Pearson v. suffer the unfair As han, such, implicate the facts this case do not U.S. (2009). And, deciding the protections Brady.”); L.Ed.2d 565 McCune v. ques materiality begs Rapids, issue somewhat 842 F.2d Grand (6th Cir.1988) “[bjecause right? (holding tion: material to what constitutional See, Renourishment, e.g., Stop underlying proceeding Beach criminal terminated favor, in- Dept. appellant’s Inc. v. Florida Environmental he has not been — Protection, -, jured act of wrongful suppression (2010) (“In sum, evidence” cannot 177 L.Ed.2d 184 and thus claim); peti Brady-based § Justice BREYER cannot decide that maintain cf. Waters, deciding Taylor tioner’s claim fails without first also 435-36 942 Greene, result.”); v. Cir.1996) Strickler of different

(4th (finding that no settled 1936, 263, 289, 144 119 S.Ct. 527 U.S. authority prohibited Fourth Amendment (1999) must show (plaintiff evi- L.Ed.2d 286 exculpatory withholding officer from that the probability is a reasonable never “there § who was plaintiff 1983 dence from would have been differ- result of the trial charges). No underlying criminal tried on had been suppressed if documents Brady-based ent allowed a cases have known defense”). a disclosed to the has not been § where there 1983 claim conviction.1 purpose accord with the These decisions core, to Brady At its seeks Brady. of

Moreover, the Seventh Circuit although verdict is fair a trial whose ensure a Brady-based completely foreclosed has explained: conviction, Brady it re- reliable. As claims without punishment ... is not principle trial “The that no quires plaintiff to show prosecutor of a but society for misdeeds police if had have occurred disclosed would the ac- an unfair trial avoidance of impeachment or evidence. 87-88, Kane, Brady, 373 at 83 S.Ct. cused.” U.S. County v. See Bielanski (7th Cir.2008) 1194. 632, (expressing doubt “ can acquitted defendant ever that ‘an dissent, argue Judge Nelson seems Bra- requisite prejudice for a establish the police Brady requires punishment that ” violation,’ plain- concluding but dy they fail to turn over prosecutors or when go “the decision to tiff’s claim fails where evidence, even where arguably exculpatory by affected to trial would not been says Nelson no conviction results. evidence”) (citation withheld allegedly interpreted to allow that if is not omitted); Chicago, 614 Mosley v. no con- civil where there has been actions Cir.2010) (same). (7th 391, F.3d viction, give “perverse it incentives will they who believe police prosecutors that an ac- logically courts find These particular successfully convict a a Bra- will not quitted defendant fails to establish suppress evi- ] “that criminal defendant [ because he cannot show dy violation dence, knowing suppression would reasonably be the favorable evidence could in a successful claim and in such a not result put taken to the whole case subject at least be suspect light different as to undermine confidence But, course, lengthy criminal trial.”2 Kyles Whitley, v. 514 U.S. in the verdict.” 1555, police prosecutors or presupposes L.Ed.2d 490 this 115 S.Ct. added). could, (1995) would, accurately calculate See also Banks (emphasis 699, occur—and Dretke, 668, whether a conviction would S.Ct. v. 540 U.S. (2004) (“[Defen- knowing they would make this calculation 1256, 157 L.Ed.2d 1166 they wrong predicting ac- were must show reasonable dant] 763, (1972) (Direct dissent, Judge 92 S.Ct. 31 L.Ed.2d 104 her Nelson relies 1. With upon passing forged them habeas cases— appeal cases—most of after conviction for See, e.g. orders). there had been a conviction. where money 1555, Kyles Whitley, 514 U.S. v. (Habeas (1995) action where 131 L.Ed.2d 490 Although presided over at least 400 I have petitioner murder and had been convicted of felony including state and federal trials — death.); Maryland, Brady v. sentenced to acquittals large number that resulted —I (1963) 10 L.Ed.2d 215 predicting capable of an admit that I am less (Same); Agurs, 427 U.S. United States police acquittal officers described than (Same); S.Ct. 49 L.Ed.2d 342 Judge Nelson. Ylst, Cir.2006) 447 F.3d 735 Morris States, (Same); Giglio v. United instead, a conviction resulted amount of quittal damages he suffered” and was “irrelevant to whether he has a they liability would face civil for their Bra- cause of action,” id.3 extraordinarily It un- dy violation. seems or likely police prosecutors that make this conclusion, In reaching this we relied calculation. upon Cooper v. Dupnik, 963 F.2d 1220 Cir.1992) (en banc), a case that allowed

And, below, as we allow false described § 1983 action for a Miranda violation even prosecution malicious arrest and claims though suspect charged was never prosecutors probable or lack police where the statement was never used. But in prosecute cause to arrest defendants. Haupt Supreme 2003—after Court — the Such claims better focus consideration to Cooper. overruled See Chavez v. Mar appropriate issue: did the undisclosed tinez, Brady probable material undermine cause J.) (“We (Thomas, 155 L.Ed.2d 984 prosecute to arrest or Smith. how, fail to see based on the text of the Against backdrop, says this our Amendment, Fifth allege Martinez can Dillard, in Haupt decision 17 F.3d 285 right, violation of this since Martinez was (9th Cir.1994), allows his claim even crime, prosecuted never for a let alone though he suffered a I never conviction. compelled to be a witness himself Haupt distinguishable, believe it find was case.”); 778-79, in a criminal id. at Supreme upon holding based (Souter, J., S.Ct. 1994 concurring judg overruled, has since been and find little (“I ment) ... do not believe that Martinez it apply reason to to this case. can ‘powerful showing,’ subject make the Haupt, during jury risks, In a conference on to a realistic assessment of costs and necessary expand to Haupt’s protection priv instructions for murder ilege against compelled judge to self-incrimination indicated counsel that he intended point to the liability the civil he asks us give jury to an instruction recommend- here.”). recognize to ing acquittal. 17 F.3d at prose- 287. The objected, investigating police cutor and the Thus, Haupt distinguishable because telephoned officer later the judge and told it involved a claim for violation of the judge say giving to an acquittal general process due right to fair trial— recommendation would be ridiculous. Id. not, here, Moreover, as a Brady claim. judge give declined to the recommen- Haupt upon authority relied that has since dation, noting that he felt intimidated Finally, Haupt been overruled. is incon- Nevertheless, the officer’s statement. Id. Brady’s sistent with rationale of ensuring defendant, jury acquitted the who then worthy a verdict confidence. do not brought §a claim against the officer believe this Haupt Court should extend depriving him of the right to a fair Smith’s claim. trial. Id. addition, In extending Brady to cases held that plaintiff

We stated a claim without a conviction materiality makes the process for violation of his due right to a standard far less workable. i.e.,

fair right “get case, the unbi- show reasonable trial — entitled,” judge ased to which he was id.— the result of the first trial been different, acquittal “sp[o]k[e] only and that his to the Smith would need to show that terms, Haupt questiona- 3. On judge completely improper, its own seems officer to a are ble, Cooper good judge ultimately responsibility even when While law. had the parte investigating police properly ex jury. contacts from an instruct the and, therefore, no cause of action exists trial would jurors in his first none of cases). 1983”) (citing Our inabili- presented convict under have voted to way that she saw Smith principled false claim to find a to limit these ty Nelson’s a calcula- Such gloating at the fire scene. a fur- Brady claims is therefore types of (whether proba- there is a reasonable tion the claim against recognizing ther reason that the undisclosed evidence bility makes here. Smith jurors acquit) all the to have caused post-conviction as a Recognizing Brady calculation different from the significantly not foreclose all constitutional right does (whether Brady claim post-conviction in a tried remedies where a defendant has been probability is a reasonable there criminal convicted. Where a de- but not a would have caused undisclosed evidence exculpatory that withheld fendant believes juror acquit). to vote to single charges brought has caused to be evidence § claims Allowing Brady-based him, but no convic- and maintained open conviction would the door without a resulted, remedy tion has his would flow potentially a unlimited number of such prosecu- from a false arrest or malicious every stage at of the claims for decisions claim, Brady. not from tion and police If a officer failed process. criminal Indeed, as appeal discussed victim until the start to disclose statements above, argues Appellant principally mistrial), (resulting of trial in a in granting the district court erred jailed days for 530 before defendant was summary judgment on Smith’s false arrest ultimately acquitted, would the retrial but claims. And in prosecution and malicious have a 1983 claim? See defendant circumstances, a of some law enforcement 98-CV-1119, Krystopa, Williams v. No. support ficial’s non-disclosure could a false (E.D.Pa. 961375, at *4 Dec. 1998 WL claim, although need to arrest Smith would 1998) (“Plaintiff ultimately receive a did magistrate show that “the would not fair trial because statement [the victim] information issued the warrant false was uncovered time for its effective use redacted, Moreover, or omitted information restored.” trial court at trial. was able Cajon, 117 just City to reach a conclusion: it declared a Lombardi v. El F.3d (9th Cir.1997). testimony 1117, 1126 Plaintiff mistrial when showed statements, had not received the witness And, right even without a under Plaintiff, and held a full trial at which then to make a claim for non-disclosure without statements, possession was ac conviction, a Smith could also make a claim [Jjustice quitted. finally prevail ... did Indeed, main- prosecution. for malicious and Plaintiff received a fair trial and a prosecution a malicious taining successful [Thus,] worthy of confidence.... verdict ac- requires claim that the defendant be occurred.”), no violation aff'd pro- or at least that the criminal quitted, (3d Cir.2000) (unpublished). F.3d 1263 not result in his conviction. ceedings did provide police Would officer’s failure (Second) Torts, Restatement See sup defendant with (1977). But, claims, like false arrest port §a 1983 claim the defendant where an absolute defense to “probable cause is criminal incurred defense costs but prosecution.” malicious Lassiter v. charges were dismissed before trial? See Bremerton, 1049, 1054-55 (in Morgan, 166 F.3d at 1310 cases where Cir.2009). prior all criminal charges were dismissed Thus, damaged defendant can obtain universally “courts have held evidence, remedy right implicated to a fair trial is not for the non-disclosure in the acquittal. place. police or the crime first Absent of his conviction irrespective misconduct, I exculpatory evi- believe there is reasonable non-disclosure of Where conviction, he that Smith would have been to a defendant’s dence leads Therefore, I Brady. acquitted. under dissent. certainly bring a claim may to a mistrial non-disclosure leads When the opportunity the defendant’s acquittal,

or remedy claiming lies for constitutional argues Almada vio arrest, wrongful prosecution malicious process rights by failing lated his due in such cases should but the non-disclosure in exculpatory material evidence disclose claim. support Brady Brady Maryland, violation of v. 373 U.S. sum, (1963). § 1194, allowing Brady-based In 10 L.Ed.2d not com- without a conviction is claims Such evidence is material under law, (1) by our circuit’s case conflicts pelled it is favorable to the accused either (2) circuits’ ease law and the cen- impeaching, with other because it is or Brady, would render Bra- purpose suppressed by government, tral it was materiality significantly less dy ’s standard as a result. prejudice ensued Strickler Greene, workable, limiting principle. 263, 281-82, I and lacks a 527 U.S. (1999). 1936, 144 case, 1983 claims therefore not allow In would L.Ed.2d 286 this by a defen- alleged Brady violations sup for there is no debate as to whether the ultimately acquitted. is pressed dant who evidence was favorable to Smith suppressed by the State. The NELSON, Judge, D.W. Circuit suppression issue is whether the of the dissenting: prejudicial. evidence was I respectfully disagree dissent. with Supreme Court has made it clear the materiali- majority’s assessment of “if prejudice is established there is a in case. suppressed of the evidence this ty that, probability reasonable had the evi- strongly disagree with Gwin’s I also defense, disclosed to the dence been Brady. regarding scope concurrence proceeding result of the would have been will be addressed turn. These issues (in- different.” Id. at 119 S.Ct. 1936 start, however, important quotations it is ternal marks and citations omit- From the ted); Dretke, in which the see also Banks v. to note that this is a case 668, 698-99, 157 L.Ed.2d spent over seventeen months S.Ct. defendant (2004). addressing In this reasonable jail, charged July from the date he was standard, em- resulting hung probability trials the Court has through two finally phasized “adjective important.” is juries, judge until the trial dis- Whitley, 514 Kyles the case on December missed (1995). evidence, In seven S.Ct. 131 L.Ed.2d Even absent the withheld words, question in the first other is not whether jurors acquit “[t]he voted to trial, likely than not In the eleven out of the defendant would more trial. second jurors him. The have received a different verdict acquit twelve voted to evidence, but whether in its absence he majority suppressed holds that evi- immaterial, trial, fact that a fair understood as a trial despite received dence was resulting worthy im- in a verdict of confi- have been used to this evidence could added). Nelson, (emphasis The rele- credibility Marilyn dence.” Id. peach the government’s whether the testimony question was used to vant is the witness whose “undermines confi- committing evidentiary suppression for establish Smith’s motive outcome in trial.” Id. different in the outcome of the dence trial, jurors vot- (internal Smith’s first where seven marks and citations quotations him, omitted). acquit it is difficult to see how case, Almada’s ed to In this proba- he has not established reasonable just did that. evidentiary suppression bility regarding his second where ignore if we the evidence Even jurors eleven out of twelve voted for ac- fires, majority have us as the earlier quittal. do, false failure to disclose Nelson’s more, upon by What is the case relied at the crime gloating account of Smith’s majority finding immateriality dismissing this prejudicial. was scene easily distinguishable from the facts of immaterial, majority con- evidence as Strickler, far this case. In there was more by simultaneously insisting tradicts itself physical linking forensic testimony was not crucial at that Nelson’s crime, defendant to the and the witness testimony helped trial and that her at impeachment whose issue offered commit the establish motive for Smith to testimony that was cumulative. 527 U.S. properly disclosed arson. Had Almada 292-94, evidence, at 119 S.Ct. 1936. In the case at it at this Smith could have used hand, im- where the withheld evidence impeach credibility as a trial to Nelson’s credibility peaches the of the witness If was mistaken about witness. she testimony whose was used to establish mo- presence the crime scene after Smith’s at tive, fire, jurors and eleven out of twelve voted perhaps the she was also mistaken acquittal for even absent the withheld evi- comportment during the about Smith’s dis- dence, probability there is reasonable of pute consignment over the broken item. view, In words, my pan- different outcome. the suppressed In other the Al- el should have held that the evidence gone long way would have towards un- mada failed to disclose was material. dermining the other evidence of Smith’s that, alleged motive. the Without II connection between and the crime is peculiar physical the evidence found in the suppressed Because I believe the evi- incendiary material, device. Under these circum- dence was would also reach the stances, probability there is a reasonable in question Brady applies of whether situ- jury in either of Smith’s criminal ations where there has not been a criminal acquitted trials would him. question conviction.1 is a This of first impression in the Ninth Circuit. particularly This is true con- when one indicates, way jurors siders the voted in As Gwin’s concurrence criminal trials even in the absence of the he would hold a Section 1983 suit can proper withheld A application alleged Brady evidence. of never be based on an viola- plaintiff ultimately the reasonable standard to tion if the was not this con- view, case would have taken account the victed. In into order substantiate this majority jurors fact that the rely upon voted to the concurrence is forced to acquit logic in of his supposed Brady both trials. Even internal itself and majority cursory by not analysis does find reasonable offered a few other majority Brady requirements, 1. Because the concludes that the ex- as construed culpatory evidence withheld from Smith was majority, we need not decide whether material, unnecessary it is to use this case applies any- in when an unfair trial results scope Brady. to define the Until we are thing other than a conviction. faced with a case that would otherwise meet

947 effect, sufficiently scope the concurrence re- to restrict circuits. remedy right by Brady. presence afforded post to a hoc duces subject merely speaks absence of a conviction who have been criminal defendants Satz, trial,” showing the likelihood of a violation. “unfair Flores v. to an (11th Cir.1998), defined F.3d balance, precedent On in the Su- narrowly resulting a trial a convic- as preme Court and our Circuit cuts Gertz, Morgan tion. F.3d against the idea that right to the dis- Cir.1999). approach This closure of evidence is vitiated based, however, logical fallacy on the simply because a conviction does not re- the lack of a conviction necessitates the Kyles, sult. See at conclusion that the trial was “fair” for the (“The question is not whether the purposes Brady. Such a narrow rule likely defendant would more than not have juries, acquittals, hung would exclude and received a different verdict with the evi- judgment even situations in which a of dence, but whether in its absence he re- entered, id., simply never conviction ceived a fair understood as a trial thereby replacing Brady’s pro- broad due resulting worthy a verdict of confi- pronouncements with a results-orient- cess dence.”); Brady, 373 U.S. at sight ed test that loses of the roles that (stating that purpose of the rule police prosecutors play “shap[ing] against suppression of evidence is “avoid- defendant,” heavily trial that bears on the accused”); ance of an unfair trial to the Brady Maryland, whatever the verdict. Agurs, United States v. 88, 1194, 83,

373 U.S. 83 S.Ct. 10 L.Ed.2d 2392, (1976) 96 S.Ct. 49 L.Ed.2d 342 (part (1963). of the concern is preventing “corruption of truth-seeking the pro- function of the trial justify reading To further this reductive cess”); Ylst, Morris v. 447 F.3d Brady, the concurrence contends that (9th Cir.2006) (“The animating purpose of drawing the line at criminal convictions is Brady preserve is to the fairness of crimi- only way keep floodgates shut trials.”) (citations omitted); nal Haupt v. Brady-based Section claims. This Dillard, Cir.1994) course, argument ignores, of the limits set (“The Haupt ultimately fact that was ac- by Brady requirements themselves: quitted speaks only the amount of dam- (1) that the evidence was favorable either suffered; he it ages is irrelevant to wheth- it impeaching, because was action.”).2 er he has a cause of (3) by suppressed government, and prejudiced plaintiff. Brady pursues the nondisclosure interdependent two Greene, 263, 281-82, goals: v. it judicially Strickler is a enforced mecha- (1999). 1936, 144 protecting right 119 S.Ct. L.Ed.2d 286 nism for both ato fair by majority’s discouraging As evidenced view of the trial and misconduct on the case, materiality facts in this part police prosecutors. itself serves It is hard (internal distinguish Haupt (emphasis original) 2. The concurrence tries to S.Ct. 1994 part Supreme omitted). because it was based on a quotations Süpreme by Court decision that has been overruled found a criminal case to commence with the Martinez, Chavez legal proceedings, police initiation of not with (2003). However, 155 L.Ed.2d 984 questioning. The case does not control the reading was based on a of the Fifth Martinez question whether a criminal can defendant requirement person ''[n]o Amendment's where the tri- assert constitutional violation compelled any ... be criminal case to be a acquittal. results in al witness himself.” Id. at right of conduct that “undermines confidence in imagine protecting this without discouraging misconduct. The con- also the outcome of trial.” United States v. [a] would, nevertheless, have us be- currence Bagley, 473 U.S. Brady’s about (1985).

lieve that broad statements 87 L.Ed.2d 481 process due can reduced to a backward- be majority sup- Because the holds that the only most looking egregious check on immaterial, pressed evidence was it was evidentiary suppression— instances of right question regard- to avoid the broader This those result a conviction. ing scope Brady. Because would approach distorts and its suppressed find that the evidence was ma- progeny;3 it incen- perverse also creates terial, and that is entitled to seek police prosecutors tives for who be- recovery grounds govern- on the that the they successfully lieve will not convict a Brady obligations, ment violated its how- particular criminal defendant —in which ever, I dissent. suppress case it would make sense to evi- dence, knowing suppression

not result in a successful claim and subject suspect would at least be to a

lengthy criminal trial.

The fact that a defendant is fortunate

enough escape conviction does not ab-

solve responsibility the state of for the Brady obligations. breach of its The indi- PROPERTIES, LLC, COLONY COVE right vidual’s to a fair mandated liability company, a Delaware limited process the due clause of the Fifth Amend- Plaintiff-Appellant, ment, hinge does not on the outcome criminal proceedings. CARSON, municipal corpo- CITY OF hand, In the case at harm suffered ration; City of Carson Mobilehome obvious,

by Smith is and I cannot conclude Board, public Park Rental Review right that his to a fair trial was not violat- body, Defendants-Ap- administrative ed, simply because his trials did not result pellees. Again, in a conviction. spent over in custody, seventeen months from the No. 09-57039. 2003, charged July date he was through United States of Appeals, resulting hung juries, two trials until the Ninth Circuit. judge finally trial dismissed the case on 14, December 2004. police Absent miscon- Argued 14, and Submitted Feb. 2011. duct, might acquitted. have been Filed March 2011. juries The two knew about dispute his Nelson, they but did not know about Nel-

son’s false identification of Smith. With-

holding precisely type this evidence is (1972), possessed by government Since was decided in the Su- preme repeatedly expanded upon Court has prosecutor, Kyles, even if not 514 U.S. insight, holding its initial Constitution at and evidence not requires impeachment also the disclosure of defense, specifically requested by Agurs, evidence, States, Giglio v. United 427 U.S. at 96 S.Ct. 2392. 31 L.Ed.2d 104

Case Details

Case Name: Smith v. Almada

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Oct 19, 2010

Citation: 640 F.3d 931

Docket Number: 09-55334, 09-55346

Court Abbreviation: 9th Cir.