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Garnett v. Undercover Officer C0039

United States Court of Appeals, Second Circuit

September 30, 2016

KWAME GARNETT, Plaintiff-Appellee-Cross-Appellant,
v.
UNDERCOVER OFFICER C0039, Individually and In his official capacity, Defendant-Appellant-Cross-Appellee, UNDERCOVER OFFICER C0243, Individually and In his official capacity, Defendant-Appellee, CITY OF NEW YORK, NEFTALI BETANCES, Individually and In his official capacity, KEITH CARPENTER, Individually and In his official capacity, ABEL JOSEPH, Individually and In his official capacity, ERICK ORTIZ, Individually and In his official capacity, CARLOS SIERRA, Individually and In his official capacity, TYRONE VIRUET, Individually and In his official capacity, JOHN DOES, Nos. 1-10, Individually and In their official capacity (the names John and Jane Doe being fictitious, as the true names are presently unknown), JANE DOES, Nos. 1-10, Individually and In their official capacity, (the names John and Jane Doe being fictitious, as the true names are presently unknown), Defendants.

          Argued: June 7, 2016

         Appeal from United States District Court for the Southern District of New York (Gregory H. Woods, J.) denying defendant-appellant-cross-appellee Undercover Officer C0039's ("UC 39") motion for judgment as a matter of law and denying plaintiff-appellee-cross-appellant Kwame Garnett's motion for a new trial. Garnett was arrested by UC 39 during a "buy and bust" and was subsequently charged based on UC 39's account of his observations of the alleged crime, including a statement UC 39 attributed to Garnett. Garnett denied making the statement and, after being held for nearly eight months pending trial, was acquitted at a state criminal trial. Garnett subsequently filed a Section 1983 action bringing various claims against UC 39, among others. After a civil trial before the district court, UC 39 was found liable for violating Garnett's constitutional right to a fair trial. In its post-trial rulings, the district court held UC 39's account of his personal observations of the incident, which gave rise to Garnett's arrest, could provide the basis for a claim of denial of the right to a fair trial due to an officer's provision of false information to a prosecutor following Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir. 1997), and therefore denied UC 39's motion for judgment as a matter of law. The district court also denied Garnett's motion for a new trial after finding that the court's jury instruction on probable cause, following the jury's request for clarification, was an accurate statement of law and answered the jury's question. Because we are of the view that Ricciuti controls when the fabricated information at issue is an officer's account of his or her observations of alleged criminal activity which he or she conveys to prosecutors, and also are of the view that the district court's jury instruction was proper, we affirm.

          ROBERT T. PERRY, Brooklyn, NY, for Plaintiff-Appellee- Cross-Appellant Kwame Garnett.

          RICHARD DEARING, of counsel (Cecilia Chang, Ingrid R. Gustafson, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, NY, for Defendant-Appellant-Cross-Appellee Undercover Officer C0039 and Defendant-Appellee Undercover Officer C0243.

          Before: POOLER, SACK, and LYNCH, Circuit Judges.

          POOLER, Circuit Judge.

         Both plaintiff-appellee-cross-appellant Kwame Garnett and defendant- appellant-cross-appellee Undercover Officer C0039's ("UC 39") appeal from a judgment, entered after a jury trial in the United States District Court for the Southern District of New York (Gregory H. Woods, J.), finding UC 39 liable for denying Garnett his right to a fair trial by fabricating evidence in connection with criminal charges against Garnett, and awarding Garnett $1 in nominal damages and $20, 000 in punitive damages. UC 39 argues that the district court erred in denying his motion for judgment as a matter of law, and Garnett contends that the court erred in denying his motion for a new trial.

         Garnett was arrested by UC 39 in the wake of an undercover "buy and bust" operation, and was subsequently charged based in part on UC 39's account of his own observations during the alleged drug sale, including a statement he said Garnett made during the transaction. Garnett denied making the statement and, after being held for nearly eight months pending trial, was acquitted at a state criminal trial. In its rulings following Garnett's civil jury trial, the district court held that UC 39's allegedly fabricated account of his own observations could provide the basis for a claim of denial of the right to a fair trial due to an officer's provision of false information to a prosecutor following Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123 (2d Cir. 1997), and therefore denied UC 39's motion for judgment as a matter of law. The district court also denied Garnett's motion for a new trial after finding that the court's jury instruction on probable cause, following the jury's request for clarification, was an accurate statement of law and answered the jury's question. Because we conclude that Ricciuti controls when the fabricated information at issue is an officer's false account, conveyed to prosecutors, of his or her own purported observations of alleged criminal activity which led to an arrest, and that the district court's jury instruction was proper, we affirm.

         In Ricciuti, we held that, even if there is probable cause to arrest a defendant, an officer who subsequently fabricates that defendant's confession "and forwards that information to prosecutors . . . violates the accused's constitutional right to a fair trial, and the harm occasioned by such an unconscionable action is redressable in an action for damages under 42 U.S.C. § 1983." 124 F.3d at 130. This case calls for us to consider whether Ricciuti requires the same result when the fabricated information at issue is the officer's own account of his or her observations of alleged criminal activity which he or she conveys to prosecutors. We hold that it does.

         BACKGROUND

         I. Factual Background

         A. Garnett's Arrest and Prosecution

         This case arises from a so-called "buy and bust" operation conducted by the New York City Police Department ("NYPD") on November 19, 2011. On that evening, a team of NYPD officers, including defendant-appellant-cross-appellee UC 39 and defendant-appellee Undercover Officer C0243 ("UC 243"), conducted an operation in East Harlem where the undercover officers attempted to purchase drugs.

         There are commonly two roles in a "buy and bust" operation: the "primary" tries to buy the drugs, while the "ghost" serves to protect the safety of the primary. UC 39 was the ghost. UC 243, the primary, met non-parties Naquan Cintron and Naim Roper. Roper was allegedly stating something along the lines of "smoke, smoke, smoke" or "bud, bud, bud, " and, at Roper's suggestion, the undercover officers entered Lexington Grocery, a bodega, where Cintron and Roper then sold small amounts of crack cocaine and marijuana to UC 243 sometime after 6:00 P.M. App'x at 251, 332. Cintron and Roper were then arrested by other officers participating in the "buy and bust" operation.

         Garnett was also arrested in connection with the drug sale. While UC 243 spoke with Cintron and Roper, UC 39 was scanning the area and stated that he observed an individual, identified as Garnett, standing by the curb outside the bodega. UC 39 testified that he saw Garnett also scanning the area.[1] UC 39 stated that, based on his experience, he believed Garnett was keeping a lookout for police during the sale. UC 39 wrote in a "DD-5, " a complaint follow-up form, and told the arresting officer and a prosecutor, that Garnett entered the bodega during the sale and told Cintron and Roper, "Yo, hurry up. Y'all ain't done yet? Get that money. I'm not looking to get locked up tonight. Let's go." App'x at 263- 64, 603. UC 243 heard Garnett speak, but did not hear exactly what Garnett had said. UC 39 testified that after he saw Garnett look at Roper and Cintron, Garnett shook his head, and exited the bodega. This caused UC 39 to revise his earlier theory that Garnett was a lookout for Roper and Cintron and instead to believe that Garnett could be Roper's and Cintron's manager.

         B. Roper and Cintron Plead Guilty; Garnett's Criminal Trial

         Six days after the arrests, Roper pled guilty in state court to one count of criminal sale of marijuana in the fourth degree and one count of criminal facilitation in the fourth degree. Cintron and Garnett were both indicted by a state grand jury, but Cintron then pled guilty to one count of criminal sale of a controlled substance (cocaine). In his plea allocution, Cintron stated that he acted "in concert with" Garnett in selling "a narcotic drug to a police officer."[2] App'x at 781.

         Garnett then proceeded to a state criminal trial. Prior to Garnett's criminal trial, UC 39 communicated the information in UC 39's original DD-5 report to the Assistant District Attorney prosecuting the case. UC 39 also explained that he knew Garnett prior to the arrest at issue as, three years earlier, Garnett and two other individuals attempted to rob UC 39 at gunpoint in a housing project where officers were engaging in an investigation. Garnett, seventeen years old at the time, was convicted of attempted robbery in the first degree. According to UC 39, it was not until he learned Garnett's name after the arrest that he realized that Garnett was the same person who had robbed him at gunpoint three years earlier. UC 39 explained that he did not initially recognize Garnett during the "buy and bust" operation because, during the earlier encounter, Garnett had been three years younger, had looked younger and thinner, and had had "a lot of hair on his head." App'x at 293. UC 39 was precluded from testifying about the robbery during Garnett's state criminal trial.

         Garnett has consistently denied having any involvement in the drug sale and denies making the statement attributed to him by UC 39. After he was arrested, Garnett was searched and no drugs, other contraband, or any other evidence of criminal activity, were found on his person. Nevertheless, Garnett was arraigned and charged with criminal sale of a controlled substance in the third degree and criminal sale of marijuana in the fourth degree on the basis of UC 39's communications with the prosecutor. Garnett pled not guilty and bail was set at $50, 000. Unable to post bail, Garnett remained in custody for nearly eight months. On July 6, 2012, a jury acquitted Garnett of all charges and he was released.

         C. Garnett's Federal Damages Lawsuit

         On October 4, 2013, Garnett filed a lawsuit in the district court for the Southern District of New York (Rakoff and Woods, JJ.). On December 9, 2013, Garnett filed his amended complaint against officers involved in his arrest, including UC 39 and UC 243, alleging, among other things, false arrest, malicious prosecution, failure to intervene, and denial of the right to a fair trial under 42 U.S.C. § 1983. On December 20, 2013, defendants moved to dismiss all claims except the false arrest claim and denial of the right to a fair trial claim against UC 39. On February 10, 2014, the district court (Jed S. Rakoff, J.) granted the motion in part and denied it in part. The court dismissed all claims except: (1) the false arrest claim against UC 39, UC 243, and two other officers, (2) the failure to intervene claim against UC 243, (3) the malicious prosecution claims, under both federal and state law, against UC 39 and UC 243, (4) the right to a fair trial claim against UC 39 and UC 243, and two other state law claims not relevant to this appeal.

         On March 27, 2014, defendants moved for summary judgment. On April 8, 2014, the case was reassigned from Judge Rakoff to Judge Woods. On August 13, 2014, the district court (Gregory H. Woods, J.) granted the motion in part and denied it in part, in particular denying summary judgment on Garnett's false arrest, malicious prosecution, and fair trial claims against UC 39, and the failure to intervene claim against UC 243. On October 14, 2014, the district court denied defendants' motion for reconsideration.

         D. The Federal Damages Trial

         On November 17, 2014, the case proceeded to trial on those four claims. At trial, Garnett testified on his own behalf and presented five additional witnesses in his case-in-chief: UC 39, UC 243, Lieutenant Neftali Betances, Roper, and Detective Tyrone Viruet. UC 39 and UC 243 adopted the testimony of the police officer witnesses presented in Garnett's case and rested.

         UC 39 testified, in relevant part, that Garnett entered Lexington Grocery while Cintron, Roper, and UC 243 were conducting the "buy" transaction, at which point Garnett gave UC 39 a "hard look" "[u]p and down." App'x at 255- 56. UC 39 testified that Garnett then spoke "sternly" to Cintron and Roper, telling them to "hurry up, I'm not looking to get locked up tonight[.]" App'x at 256. After Garnett spoke, UC 39 testified that Garnett looked "upset" and that Roper and Cintron "began to move quicker and they seemed, after his statement, nervous, and they seemed to have been taking [Garnett's] direction, his order." App'x at 256-57. This led UC 39 to testify that he believed Garnett was the "manager of the transaction." App'x at 257.

         Despite UC 39 testifying that Garnett told Roper and Cintron to "hurry up, " UC 39 went on to testify that Garnett went to the counter in the bodega to conduct a transaction. That testimony was inconsistent with the testimony UC 39 had given before the grand jury. At Garnett's civil trial, UC 39 was confronted with his grand jury testimony where he stated that Garnett went to the counter before "turn[ing] around" and saying to Cintron and Roper, "Yo, hurry up. What the hell is taking so long? I'm not trying to go back to jail. Get that money, get that money, let's go." App'x at 257-58. UC 39 then testified that, after ...


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