Argued: June 7, 2016
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.
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.
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.
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.
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
Garnett's Arrest and Prosecution
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.
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.
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. 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.
Roper and Cintron Plead Guilty; Garnett's Criminal
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." App'x at 781.
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.
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.
Garnett's Federal Damages Lawsuit
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.
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.
The Federal Damages Trial
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
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.
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 ...