*1 Timothy GANTT, Plaintiff-Appellant, ANGELES; Lane,
CITY OF LOS Rick 116702; Reyes, 21778;
# Jose L. # Al
Gonzales, 15614; Trovato; # Louis Williams, Defendants-Appel
Willie
lees. Smith, Plaintiff-Appellant,
Michael Angeles; Lane, of Los Rick 16702; Reyes, 21778;
# Jose L. # Al
Gonzales, 15614; Trovato; # Louis Williams, Defendants-Appel
Willie
lees. 11-55000,
Nos. 11-55002. Appeals,
United States Court of
Ninth Circuit.
Argued and Submitted Feb. May
Filed *2 (argued)
Emmanuel C. Akudinobi Ikonte, Chijioke Law Offices of Akudi- O. Ikonte, CA, for the Angeles, nobi & Los Plaintiffs-Appellants. Trutanich, City Attorney, A.
Carmen Field, Amy Berger (argued) and Jo Lisa S. Attorneys, Deputy City Office CA, Attorney, Angeles, for Defen- Los dants-Appellees. KOZINSKI, ALEX Chief
Before: KLEINFELD and Judge, ANDREW J. SILVERMAN, Judges. Circuit BARRY G. OPINION SILVERMAN, Judge: Circuit Timothy Gantt and Plaintiff-Appellants convicted of tried and Michael Smith were August 1992 murder of Kalpesh the victim and standing Smith next An Consulting them, Vardhan. Arthur Andersen holding gun. Rosemond did not employee, Vardhan was stabbed to death but, intervene or call for help after the parking garage in a An- downtown Los fled, assailants had he approached the *3 geles. This is the second time this matter scene and dying took the victim’s ATM has In come before us. we reversed card. the denial of Gantt’s federal peti- habeas LAPD Reyes homicide detectives Jose tion and remanded the ease for an eviden- Lane, and Rick both Defendant-Appellees Roe, hearing. Gantt v.
tiary here, interrogated Rosemond. Rosemond (9th Cir.2004).1 That in resulted that, testified at the time he was taken into writ, and, issuance retrial after the custody, he had been awake for approxi- key witness recanted his testimony, mately days straight two on a binge crack charges dismissal of all prejudice with dur- and was still under the influence when he ing the course of the trial. Smith won made his identifications. Over the course release in petition. 2009 on habeas The of the hours-long interrogation, the detec- appeal instant concerns the unsuccessful tives threatened charge him with the lawsuits under 42 U.S.C. 1983 filed murder if he provide did not information: Gantt and Smith following their release. “They said if I give didn’t them something, The proceeded to trial and resulted that I go would a verdict for down for it.”2 on all Rosemond defendants claims. also appeal, On Gantt testified as follows: challenge and Smith cer- tain instructions evidentiary rul- It days. just was some It wasn’t one ings. We reverse and remand for a new like, day. know, It I was don’t four or trial. five or six hours in that little room. And then I go my would back to cell and BACKGROUND bring me day back the next During original criminal trial that and ask me questions more and show me resulted in Appellants’ convictions, three pictures. It was kind of like trying to attempted witnesses to connect Gantt and I scare me. don’t if know that was their Smith to the murder. alleged The sole intention. eyewitness to the crime was a local car burglar Rosemond, Additionally, Reyes named David Rosemond told whom picked up Lane that two months he after the believed Gantt had once him, murder on a burglary charge. robbed Rosemond but this statement did not claimed he was in parking make it garage reports into their or the chrono- the morning killed, logical Vardhan was looking log, or come out at trial. During steal car radios to drug trial, finance a habit. the first Rosemond testified on cross- He testified that he saw beating up Gantt examination that he bore animosity no to- recounting 1. A full underly- of the facts of the Ultimately, reward in court. Rosemond ing aspects crime and additional of the inves- $40,000 portion was awarded a total tigation are opinion. contained in the 2004 However, testimony. for his appears it hearsay objec- court overruled a colorable Deputy Attorney District Grace testified that testimony tion to Grace's as to Rosemond’s Rosemond said the detectives had informed exception applied, statements. Since no this $40,000 put Rosemond of the up by reward admitted, improperly and we do not con- Angeles of Los and Arthur Andersen sider it. Consulting testify, because he was reluctant to say instructed him anything not to about prosecu- son at the time of his arrest. The no reason to and had wards theory tion’s was that this item was lifted him. view of any biased person from Vardhan’s at the time of the initially Attorney’s office District The matchbook contained a crime. hand- case, of con- part, because rejected the number, but phone written the handwrit- credibility and Rosemond’s cerns about conclusively link it ing analysis could not immunity. The evi- Rosemond granting 19-digit phone to the victim. The number by dif- reviewed subsequently dence Bangladesh connected to individual for- go who decided to prosecutor ferent name or recognize who did not Vardhan’s re-interviewing the case after with ward son, photo. The man’s who worked at the Rosemond. restaurant, recognize also did not Vardhan *4 Shorts, witness was Kevin The second 2004, photo. In we held that the from Andersen, claimed he at Arthur who CPA Brady by failing had violated prosecutors near the scene of the saw Gantt and Smith to disclose that these individuals had not of the murder. around the time crime Gantt, recognized the victim. 389 F.3d at Reyes that he saw told Lane Shorts and. 910-11. reversed the denial of Gantt’s We the sixth floor of driving a vehicle on Gantt petition grounds federal habeas on the that he was able to see garage and prosecution’s the weakness of the given mirror reflected in a rear-view Gantt’s face state’s reliance on the evidence and the He of seconds. identified for a matter matchbook, Brady these violations were However, array. photo from a Gantt not harmless and could well have altered an individual initially identified Shorts the outcome of the case. Id. at 915-16. as the ac- Raymond name of Wilson any reach of Gantt’s Our decision did not standing outside the ve- complice who was other claims. We remanded the for hicle, identifying Smith. While before hearing to determine evidentiary garage on the sixth floor parked violations had in whether the disclosure mail, any his did not hear reading Shorts remand, fact occurred. Id. 916. On strug- an attack or screaming or sounds of granted peti- habeas district court Gantt’s he see Rosemond. Shorts gle; nor did tion, and a retrial was scheduled. $20,000 reward for his testimo- collected ny. 2008, In of the retrial the middle- testimony, original Rosemond recanted Cubias, the
The third witness was Jose and the murder on Gantt pinned which had duty. Cubias parking garage attendant prosecution The moved to dismiss Smith. either, but he did not -witnessthe crime did charges against prejudice, Gantt with all men exit the see a car with two black subsequently he was released. Smith and He testified that he recalled the garage. arid corpus of habeas prosecuted writ only no-pay because it was the vehicle in 2009. was released day—the garage car in the ticket that was and, minutes only approximately five for separate filed Section Gantt and Smith therefore, charged. Cubias no fee actions, were consolidated which composite from a the vehicle identified discovery trial. Gantt’s Second say initially able to Gantt’s sketch following Complaint stated Amended photo resembled the driver. (1) 1983, §§ 1985: claims under U.S.C. (2) process vio- prosecution; due only potentially malicious physical violations, Brady failure a match- lation based on linking to the crime was evidence, and fabrica- analyze or preserve in the Los book from an Indian restaurant (3) evidence; indifference area, reckless per- was found on his tion Angeles which (4), rights; conspiracy to civil under ceeded on prosecution, the malicious due (5) 1985; § conspiracy to violate Gantt’s process evidence, and fabrication of Bra- (6) 1983; § rights constitutional under dy/Giglio, gather preserve failure to liability. Monell He named as defendants identification, unconstitutional Reyes, retired detectives Lane and conspiracy to violate rights constitutional County Angeles, City of Los of Los § under liability and Monell claims Gonzales, Angeles, A1 Lieutenant Louis Lane, against Defendants Reyes, and the Trovato, Williams, LAPD Chief Willie City Angeles. A jury Los returned a Norris, Deputy D.A. Sterling and D:A. In- verdict for the Defendants on all these vestigator Boyer.3 Edward claims. Complaint,-
The Smith filed over six later in against months November JURISDICTION AND STANDARD Lane, Angeles, of Los Reyes, OF REVIEW Gonzales, Trovato, Lieutenant and LAPD jurisdiction pursuant We have to 28 Williams, Chief stated following claims: U.S.C. 1291. “The standard review (1) (2) prosecution; malicious process for an alleged error in instructions premised violations on the nondisclosure of depends on the nature of the claimed er *5 (3) evidence; Brady Giglio and failure to Co., ror.” Jenkins v. Union Pac. R.R. 22 gather, preserve, disclose material and/or (9th Cir.1994). 206, F.3d 210 “A district (4) evidence; exculpatory fabrication of ev- court’s jury formulation of the instructions (5) idence; unconstitutionally suggestive If, is reviewed for abuse of discretion. (6). line-up procedures; and identification however, the challenged instructions are as (7) liability; reckless indifference Monell law, a misstatement of the they are then (8) rights; civil failure to intervene to reviewed de novo.” Duran v. of (9) prevent violations; rights civil and con- 1127, (9th Maywood, 221 F.3d 1130 Cir. spiracy § under 42 U.S.C. 2000) curiam) (internal (per quotation 9, April 2009, On the court granted a omitted). marks and citation Incomplete motion judgment on the pleadings as to instructions are legal treated as errors and County Angeles, Los Deputy D.A. Cross, reviewed de Dang novo as well. v. Norris, Investigator and D.A. Boyer, citing (9th 800, Cir.2005). 422 F.3d 804-06 prosecutorial absolute immunity ruling and that liability Monell does apply not to a ‘We have stressed that in jury county in such circumstances. fairly structions must adequately and cov er presented, the issues
The case was must correctly divided into individual lia- law, bility, state the and liability, punitive Monell and must not be misleading.” dam- ages (alteration, Id. at phases. quotation marks, 804 and Smith ci dismissed omitted). Gonzales, “Further, their claims tation against Williams, party ‘[a] is Trovato, and entitled to an withdrew their instruction 1985 about his or her conspiracy theory claims. if Additionally, Smith the case it is supported by law ” withdrew his claim for and has reckless indiffer- foundation in the evidence.’ Id. violations, ence to rights civil Williams, as well as at 804-05 (quoting Jones 297 claim 930, (9th Cir.2002)). for failure to prevent intervene to F.3d 934 There must rights Thus, civil violations. pro- the case be a sufficient evidentiary foundation to Gonzales, division, supervisor LAPD’s homicide unit commanding As officer for the Lieu- murder, during investigation of the served supervised tenant Trovato Gonzales. Reyes as supervisor. Lane's immediate
707
Cir.2001) (en
(9th
banc),
we held
Fang
1070
Yan
the instruction.
giving
support
(9th
clearly
Co.,
“there is a
established constitution
753
Ins.
v.Du Allstate
subjected to
process right
al
not to be
Cir.2012)
Cnty.
San
Mendez
(citing
(9th
evi
charges on the basis of false
criminal
Bernardino,
F.3d
1117-18
540
deliberately
dence that
fabricated
Cir.2008)).
is sufficient
there
“Whether
at 1074-75. We stat
government.”
Id.
is re-
instruction
support an
deliberate
(cita-
in order
establish
ed
Id.
of discretion.”
for abuse
viewed
evidence, a plaintiff
fabrication of
omitted).
tions
minimum,
must,
point
to evidence
however,
in the
“If,
the error
at least one of the follow-
supports
harmless,
not
it does
is
jury instruction
(1) Defendants
ing two propositions:
at 805.
Dang,
F.3d
reversal.”
warrant
investigation
of [the
continued
instructions, prejudicial
evaluating jury
“In
they
the fact that
knew
plaintiff] despite
when,
the instruc
looking to
error results
that he was inno-
or should have known
whole,
the substance
as a
tions
(2)
cent;
investiga-
or
Defendants used
fairly
correct
law was
applicable
[not]
so
techniques
tive
that were
coercive
Corp.,
v. Potomac.
ly covered.” Swinton
should
they
knew or
and abusive
Cir.2001) (alteration
F.3d
techniques
that those
have known
quotation
internal
marks
original;
yield
information.
false
omitted).
error review
Harmless
citations
trial is as follows:
jury
for a civil
no
Plaintiffs adduced
evi-
Id. at 1076.
theory,
the first
so
support
a civil dence to
instructing
An error
Dever-
relying
error is
on the second
only
unless the
could be
requires
reversal
Be-
than not harmless.
eaux basis.
probably
more
*6
where civil
presume prejudice
we
cause
level of cul
Regarding
required
the
concerned,
burden
trial
is
the
error
violations under the
pability,
process
defendant to demonstrate
shifts to the
only when
Amendment occur
Fourteenth
that
probable than not
is more
it
conscience,”
the
“shocks
official conduct
have reached the same
jury
the
Torres,
546, 554
610 F.3d
Wilkinson v.
properly
it
instructed.
verdict had
(9th Cir.2010),
“de
but what that means
1177,
566 F.3d
1182
v.
Clem Lomeli
context,”
City
v.
pends on the
Tennison
(internal
Cir.2009)
quotation
citations
Francisco, 570 F.3d
Cnty.
San
of
omitted). “Prejudice
gener-
is also
marks
(9th Cir.2009);
Cnty.
1078,
see also
1089
of
‘nothing
if
about
likely than not
ally more
Lewis,
846,
833,
523
v.
U.S.
Sacramento
that the result
jury’s] verdict indicates
th[e
(1998).
1708,
1043
140 L.Ed.2d
118 S.Ct.
the
been the same without
would have
Wilkinson,
explained that:
In
we
”
(quoting
Id.
Caballero
error.’
of
practical,
deliberation is
actual
Where
(9th Cir.1992)).
Concord,
officer’s “deliberate indiffer-
then an
shock the con-
may suffice to
ence”
DISCUSSION
hand,
where
the other
science. On
Evidence
of
1. Fabrication
snap
makes a
officer
law enforcement
escalating situa-
of an
judgment because
instructing
court erred
The district
found to
tion,
may only be
re-
conduct
culpability
the level of
jury
about
if he acts
conscience
with
shock the
of evi-
a deliberate fabrication
quired for
legitimate
unrelated to
harm
purpose
Amend-
the Fourteenth
under
dence claim
objectives.
F.3d
law enforcement
Abbey,
ment.
In Devereaux
(citations omitted).
709 animosity Rosemond’s to show information both of evidence fabrication claim of thereby impeach Gantt and as a towards judgment for motion a to survive However, the possible it is story. in- and to of matter law police be cannot reasoned that fol- court theory. It therefore on that structed mitigating failing to see for faulted jury instructions erroneous that the lows about the statement of Rosemond’s lack value harmless cannot be deemed Indeed, may the court robbery. prior and re- Accordingly, we reverse proof. reasonably police concluded of have the fabrication trial on mand for new miti- incriminating it more than as viewed claim. evidence propensity showing both Gantt’s by gating Brady Claim 2. person familiarity with the and his rob to identify. any At retrial to purported he terms in no uncertain held haveWe matter, consider the court should this mate to requirement disclose Brady’s is instruction warranted Brady whether evidence impeachment and exculpatory rial ruling. explain its and prosecu to equally applies the defense Tennison, 570 officers. police tors § 1983 Conspiracy 42 U.S.C. Under occurs suppression “Brady at 1087. F.3d turn over conspiracy fails to government Defendants concede when only erroneous, argue known that is but evidence was even instruction prosecutor.” gave to the an instruc- and not court investigators harmlessness. claim, 547 U.S. Virginia, § 1985 but v. West 42 Youngblood for a tion U.S.C. 2188, L.Ed.2d 869-70, 165 claim. 126 1983 prosecuting S.Ct. were Plaintiffs curiam) (citation quota held, (2006) correct to be (per trial is 269 a new If omitted). a claim given. “To state must be marks conspiracy tion instruction 373 Maryland, Brady State [v. under Assignments Error Remaining 1194, 10 L.Ed.2d 83, 83 S.Ct. U.S. and Claims (1) (1963) allege that ], must plaintiff either was favorable evidence the withheld remaining assign- Plaintiff-Appellants’ be or could exculpatory it because was or the merit either lack of error ments (2) sup impeach, used evi- supported sufficient are not claims (3) the government, by the pressed any claimed record, such in the dence plaintiff.” prejudiced nondisclosure harmless'—or both. error instructional (9th Almada, F.3d Smith reversible instructional we find Because Cir.2011); Ryan, Milke accord a new remand for in this error Cir.2013). 998, 1012-13 claimed trial, not rule on the need we evidentiary court’s in the district declined, errors without ex- court The district *8 However, again seek if Plaintiffs rulings. the on give an instruction to planation, the court expert, a police-practices to use premised claim That was Brady claim. testimony without this may not exclude to disclose failure officers’ police the proffer make a to allowing Plaintiffs first had them that he Rosemond told for the reasons specific giving then and Plaintiffs past. in the by robbed Gantt exclusion.5 used they could have contend parties to and the court the district Judge remind complain that Plaintiff-Appellants respect atmosphere of mutual find no an against We maintain them. Wright was biased Mindful that reassign civility. matter. this to reason respectfully try, we case to this was difficult CONCLUSION (though cause prosecutors the and police counsel) hid this from defense probably he Accordingly, we REVERSE RE- grudge had against Gantt. The third MAND for a new trial limited spe- to the witness, the parking attendant, garage cific claims outlined above. seems to me to supportive be as of the KLEINFELD, as prosecution. Senior defense Circuit On the Judge, one hand, he dissenting: was the best witness for putting Gantt and Smith in garage the right the Gantt and Smith did get not trial. fair time, hand, but on the other their parking We therefore caused their convictions to garage ticket put them there for what be vacated. against The evidence them sounds locate, rob, like too short a time to weak, was so when prosecutor’s one of the and kill the only victim. The physical three main changed story witnesses his evidence was a matchbook Gantt had from the trial, middle of Gantt’s second the restaurant, by Indian prosecu- used the prosecutor free, dismissed. Both are now tion suggest to that the non-Indian defen- prosecution and further is barred. Their dants took it from the ethnically Indian guilt innocence, or and the fairness victim. The matchbook turned out to be a trial, first criminal are no longer before us. false lead because no one could establish What we before us are their civil that the Indian victim had ever been to the against lawsuits police the two officers who prosecution restaurant. The hid from the instigated prosecution. The trial defense the first trial evidence that judge let the fabrication of evidence claim it was a false lead. get to jury, and gave arguably some But the thinness of the evidence confusing or erroneous Any instructions. murder does not error, such establish fabrication of trial though, harmless, be- theory the majority plaintiffs accepts. cause prima lacked a facie case. The tort theory be, basically, that That is not suggest that Gantt and the prosecutors police knew Gantt and Smith were fairly treated criminal Smith were prosecuted innocent and them proceedings, or committed the anyway, and created false evidence with murder. From all we can tell from the which to do it. Gantt and Smith failed to record, police the two thought detectives a prima establish facie case for fabrication Gantt and Smith had Kalpesh murdered of evidence. Vardhan, and did all they could, rightly and wrongly, get them for it. convicted Any inadequacy in the fabrication of evi- The evidence against Smith, Gantt and jury dence harmless, instruction was be- though, thin, and, was very whatever the cause the fabrication claim should not have police detectives thought, the prosecutor gone to the at all. The constitutional did not think he prove could murder once a violation claimed is that denied key witness changed story. his ofOne process of law to Smith witnesses, three accountant, shaky fabricating evidence. The supposedly fa- on the identifications. The second, the one bricated evidence was car stereo thief s changed who story in the middle of the identification. “Fabrication” means creat- trial, second was a thief in garage to ing something in order deceive.1 The *9 steal car stereos. He was not very credi- interrogation techniques used on Rose- ble, both thief, he because was a mond, and be- thief, the car may stereo have vio- 1. (2d. Heritage American 1985). Dictionary 484 coll. ed.
711 sexually having who denied to children enough that is not but rights, lated until for hours pressured were molested rights and Smith’s that Gantt’s establish to what the stories changed their they that evidence was no There violated. were and social workers investigating detective Rose- on pressure their exerted police the false of the say, the victim them to wanted testify to what him to make order mond in or to pointed adduced not charges “ha[d] false. to be believed police the a support” to in the record any evidence an gone to policemen of the Had one to have had He would claim.6 fabrication matchbook, restaurant, obtained Indian continued defendants the either that show in order pocket, init Gantt’s planted they though “knew even investigating him victim, ethnically Indian to the to tie him he was inno- known that have or should Or evidence. of be fabrication would that “were so techniques cent,” or that their that police told the thief stereo had the car or they that knew and abusive coercive saw, men he not the Smith were Gantt techniques that those have should known was, or he him, “testify that they told heldWe information.”7 yield false murder,” that for you frame we’ll “coercive element” “critical that the The due of evidence. fabrication would be was that defen- claim and abusive” consists, essentially, of violation process that known should have or “knew dants frame someone to false evidence creating accusations.”8 eliciting false were they crime. for a “is investigation improper heldWe of evi- “fabrication to what spoke fabricating false We intentionally thing, one Abbey,2 v. means Devereaux pressur- dence” Even another.”9 quite is evidence Wenatchee out of the arising time periods of long en bane ing witnesses child 43 in which hunt’ to enough abuse ‘witch not “sexual their stories change to 29,000 over with charged were because summary judgment, adults get past We held lacked evidence charges of sexual molestation.”3 counts of the false victim clearly consti- established or should is knew that “there investigators that the subject innocent,” be or right not process he “was tutional known yield the basis false “would techniques charges improper to criminal deliberately fabricated that was information.”10 false such We deemed government.”4 car Devereaux, pressuring Under knowing use comparable fabrication and Smith implicate thief stereo subject of the Su- testimony, perjured trial, much less them to entitle not did Pyle v. Kansas.5 decision preme Court for fabrication verdict aside setting not did unsuc- because claim “fabrication” Yet the innocent, we) (nor were do know even of law a matter as cessful techniques would interrogation that, or that held hunt. We witch Wenatchee As for yield a false identification. interrogated lengthily though the even Id. 7. Abbey, 1070 Cir. 2. Devereaux 2001) (enbanc). 8. Id. 1073. Id. at
3. at 1077. 9. Id. 1074-75. 4. Id. at Kansas, Pyle (discussing Id. at 5. Id. (1942)). 87 L.Ed. 63 S.Ct. U.S.
6.Id. *10 suggestion that if he could not identify tell police what the believe to be the truth Gantt and Smith as the perpetrators, they arguably opens § to a door 1983 claim. him, “put it on” did not know We should affirm on the fabrication of Gantt, Smith, or the car stereo thief claims, evidence the basis for the reversal. innocent, were so the coercive threat is not
“fabrication” Devereaux. under
In case, Gantt’s and Smith’s there was
no witch hunt. particular There is no
reason to think that Gantt and Smith are
innocent, much police less knew
they were. There is no showing that the
police believed the identification the car TASTE, INC., HIGHER Washington a stereo thief made was false. He himself Corporation, Non-Profit has not claimed that he twenty years lied Plaintiff-Appellant, ago, just that he can longer no remember and had not wearing glasses. We held TACOMA, Wenatchee witch CITY OF Metropolitan hunt cases Mu plaintiffs nicipal were not Corporation; entitled get to Metropolitan to trial on their fabrication of Park Tacoma, District of Depart fortiori, cases.11 A City far less coercive ment of the Tacoma; Execu questioning and any the lack of tive reason to Wilson, Director Jack C. Execu infer a frameup anof innocent man did not tive Metropolitan Director of the Park entitle Gantt and Smith put to their fabri- City Tacoma, District of the Defen cation case jury. before a Here plain- dants-Appellees.
tiffs were mistakenly permitted try No. 11-36046. cases, and the returned verdicts that a correct application of law would United States Appeals, Court of have compelled regardless of their ver- Ninth Circuit. dicts. The fabrication of evidence claim is Argued and Submitted Dec. 2012.
no more than a claim that false not known Filed prosecution June false, be was used to convict them.
Because the fabrication of evidence
claim should not gone all, trial being
there prima case, no facie need we
not reach questions about the correct-
ness of the instructions. The case put jury,
to the which reached the legally re-
quired despite conclusion the poor instruc-
tions. publication of today’s decision
vastly expands application of 1983 to prosecutions,
failed in quite dangerous
way.
Now
pressure on a witness to
(9th
Abbey,
Wenatchee,
Devereaux v.
F.3d
Cir.2003).