Marshall v. Randall

12-2479-cv
Marshall v. Randall
UNITED STATES COURT OF APPEALS 1
FOR THE SECOND CIRCUIT 2
August Term 2012 3
(Argued: March 8, 2013 Decided: June 12, 2013) 4
Docket No. 12-2479-cv 5
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JOSHUA MARSHALL, 7
8
Plaintiff-Appellee, 9
10
-- v. –- 11
12
P.O. SALIM RANDALL, Shield No. 15331, Individually and in 13
His Official Capacity, P.O. MICHAEL BURBRIDGE, Shield No. 14
15488, Individually and in His Official Capacity, 15
16
Defendants-Appellants, 17
18
THE CITY OF NEW YORK, JOHN DOE, P.O.’s #1-10 Individually 19
and in Their Official Capacities, (the name John Doe 20
being fictitious, as the true names are presently 21
unknown), 22
23
Defendants. 24
25
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B e f o r e : WALKER, LYNCH, and CARNEY, Circuit Judges. 27
Defendants-Appellants Salim Randall and Michael Burbridge 28
appeal from the 2012 judgment of liability of the United States 29
District Court for the Eastern District of New York (Weinstein, 30
Judge). After a jury trial, Defendants-Appellants were found 31
liable for false arrest, malicious prosecution, and violation of 32
Joshua Marshall’s right to a fair trial. They were ordered to pay 33
damages of $95,000 each. We hold that there was no error in the 34
district court’s trial rulings. AFFIRMED. 35

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2
JON L. NORINSBERG (Gerald M. Cohen, 1
Joshua P. Fitch, Cohen & Fitch LLP, 2
on the brief), New York, NY, for 3
Plaintiff-Appellee. 4
5
AVSHALOM YOTAM (Francis F. Caputo, 6
Karen M. Griffin on the brief), of 7
counsel to Michael A. Cardozo, 8
Corporation Counsel of the City of 9
New York, New York, NY, for 10
Defendants-Appellants. 11
12
13
JOHN M. WALKER, JR., Circuit Judge: 14
Defendants-Appellants Salim Randall and Michael Burbridge 15
appeal from the 2012 judgment of liability of the United States 16
District Court for the Eastern District of New York (Weinstein, 17
Judge). After a jury trial, Defendants-Appellants were found 18
liable for false arrest, malicious prosecution, and violation of 19
Joshua Marshall’s right to a fair trial. They were ordered to pay 20
damages of $95,000 each. We hold that there was no error in the 21
district court’s trial rulings and affirm the judgment. 22
BACKGROUND 23
We assume the parties’ familiarity with the underlying facts 24
and procedural history and recite only those details relevant to 25
this appeal. 26
On May 15, 2008, Marshall was arrested in Brooklyn by Police 27
Officers Randall, Burbridge, and Kieran Fox (who is not a defendant 28
in this case). Marshall was walking down a sidewalk with another 29
man, Demetrios Meade, when they were approached by the officers. 30
As the officers drew near, one of the men threw away a gun, which 31

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3
landed in the street. The officers arrested Marshall on the charge 1
of possessing a loaded firearm. Their statements to the local 2
district attorney resulted in a criminal complaint against 3
Marshall, and their testimony to a grand jury led to Marshall’s 4
indictment. Marshall was released in September 2008 after four 5
months in jail. Approximately eight months after his release from 6
jail, the judge dismissed Marshall’s case on speedy trial grounds. 7
Marshall then sued Randall and Burbridge under 42 U.S.C. 8
§ 1983 for false arrest, malicious prosecution, and denial of his 9
constitutional right to a fair trial. The essence of Marshall’s 10
claim was that the officers lied when they said they had seen 11
Marshall throw the gun. At trial, Marshall called the two officers 12
as part of his direct case and cross-examined them as hostile 13
witnesses. Marshall’s strategy at trial was to attack the 14
officers’ credibility based on inconsistencies in their accounts of 15
the events on the night of the arrest. 16
The initial police complaint and arrest report, filled out by 17
Randall, indicated only that Marshall “was found to be in 18
possession of a loaded firearm.” J.A. 85 (Police Compl.). The 19
criminal complaint filed by the Kings County District Attorney’s 20
office similarly stated that Randall “observed the defendant in 21
possession of a loaded .38 Caliber Smith and Wesson revolver.” Id. 22
at 104 (Crim. Ct. Compl.). Randall testified to the grand jury 23
that Marshall “pulled a firearm out of his waist[band] and tossed 24

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4
it into the street.” Id. at 129-30 (Grand Jury Tr.). At his 1
deposition, Randall testified that he saw Marshall in physical 2
possession of the pistol “[w]hen he reached into his pants and 3
pulled out an object and threw it to the ground.” Id. at 571 (Dep. 4
Tr.). At trial, however, Randall admitted that he never saw the 5
gun in Marshall’s “actual physical possession,” id. at 1001 (Trial 6
Tr.), but that he “saw the motion, . . . [and] heard the clink when 7
it hit the ground,” id. at 1003 (Trial Tr.). 8
The evidence against Burbridge was similar. The criminal 9
complaint stated that Burbridge “recovered [the] revolver from the 10
ground where [Burbridge] observed the defendant throw it.” Id. at 11
104 (Crim. Ct. Compl.). Burbridge testified to the grand jury that 12
he “observed Mr. Marshall remove what appeared to be a silver 13
firearm from his waist[band] and throw it under a vehicle.” Id. at 14
123-24 (Grand Jury Tr.). At his pre-trial deposition, Burbridge 15
testified that he could not remember from which part of his 16
waistband Marshall pulled the gun, but at trial he testified that 17
Marshall pulled the gun from the center of his waistband. 18
Burbridge also gave conflicting deposition testimony about whether 19
he saw Marshall make a furtive movement before his decision to 20
approach Marshall and Meade, or whether that decision had been 21
based entirely on his recognition of Marshall from a NYPD database 22
of police and arrest reports. 23

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5
The jury found Randall and Burbridge liable on all three 1
counts and awarded $95,000 in compensatory and punitive damages 2
against each officer. This appeal followed. 3
DISCUSSION 4
Randall and Burbridge challenge three elements of the district 5
court’s trial rulings: (1) the use of their grand jury testimony as 6
violative of the rule in Rehberg v. Paulk, 132 S. Ct. 1497 (2012); 7
(2) the lack of a jury instruction disclosing that Marshall’s 8
criminal case was dismissed on speedy trial grounds; and (3) the 9
exclusion from trial of evidence that Burbridge stopped Marshall in 10
part because he recognized Marshall from a review of NYPD arrest 11
reports. 12
1. Use of Grand Jury Testimony 13
Citing Rehberg, Randall and Burbridge argue that their grand 14
jury testimony, admitted for impeachment purposes, was improperly 15
used by Marshall as a basis for liability. Marshall responds that 16
the use of grand jury testimony for impeachment did not violate 17
Rehberg’s holding that a grand jury witness has immunity from a 18
malicious prosecution action based on the witness’s grand jury 19
testimony. We hold that the grand jury testimony was properly 20
admitted for impeachment purposes and that the manner in which it 21
was used at trial did not contravene the rule in Rehberg. 22
We review the district court’s evidentiary rulings for abuse 23
of discretion and “will reverse only if an erroneous ruling 24

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6
affected a party’s substantial rights.” Marcic v. Reinauer Transp. 1
Cos., 397 F.3d 120, 124 (2d Cir. 2005). In general, a party is 2
entitled to a new trial if the district court committed errors that 3
“were a clear abuse of discretion that were clearly prejudicial to 4
the outcome of the trial,” where prejudice is measured “by 5
assessing the error in light of the record as a whole.” Id. 6
(quotation marks omitted). A district court abuses its discretion 7
if it “base[s] its ruling on an erroneous view of the law or on a 8
clearly erroneous assessment of the evidence.” In re Sims, 534 9
F.3d 117, 132 (2d Cir. 2008) (quotation marks omitted). 10
In Rehberg, the chief investigator for a local district 11
attorney was sued in a § 1983 action following Rehberg’s indictment 12
based on the investigator’s grand jury testimony. The Supreme 13
Court held that “a grand jury witness has absolute immunity from 14
any § 1983 claim based on the witness’ testimony.” Rehberg, 132 S. 15
Ct. at 1506. It reasoned that the justifications for absolute 16
immunity for trial witnesses also applied to grand jury witnesses: 17
“In both contexts, a witness’ fear of retaliatory litigation may 18
deprive the tribunal of critical evidence. And in neither context 19
is the deterrent of potential civil liability needed to prevent 20
perjurious testimony.” Id. at 1505; see also Briscoe v. LaHue, 460 21
U.S. 325 (1983) (establishing trial witness immunity). The Court 22
also noted that the “subversion of grand jury secrecy” was an 23
additional supporting factor. Id. at 1509. 24

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7
This case asks us to consider what the Supreme Court meant by 1
“any § 1983 claim based on the witness’ testimony.” Id. at 1506 2
(emphasis added). In Rehberg, the plaintiff’s assertion of § 1983 3
malicious prosecution liability was predicated exclusively on the 4
allegations that the investigator lied to the grand jury. In this 5
case, Marshall presented evidence of grand jury testimony, along 6
with (among other things) the police report, the officers’ 7
statements to the district attorney as reflected in the criminal 8
complaint, and the inconsistencies in deposition and trial 9
testimony. We must determine whether the use of the officers’ 10
grand jury testimony for impeachment purposes and the references to 11
the grand jury testimony during opening and closing statements in 12
this § 1983 action nonetheless caused the action to be “based on” 13
the witness’s grand jury testimony. 14
Turning first to the use of grand jury testimony for 15
impeachment, we agree with the district court that such use does 16
not violate Rehberg. Evidence that is inadmissible as direct proof 17
is frequently permitted for impeachment purposes. See, e.g., 18
United States v. Griffith, 385 F.3d 124, 126-27 (2d Cir. 2004) 19
(noting that there is a “distinction between using evidence to 20
prove substantive guilt and using evidence to impeach” and 21
collecting cases); see also Harris v. New York, 401 U.S. 222, 225- 22
26 (1971) (holding that a statement made by a defendant to police 23
in violation of Miranda is inadmissible as direct evidence but 24

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8
admissible for impeachment purposes). And juries are often called 1
upon to distinguish between proper and improper purposes of 2
testimony. 3
When Marshall questioned the officers as hostile witnesses, 4
their grand jury testimony was admitted only to attack their 5
credibility. The district court was explicit in its jury 6
instruction that this testimony could not be a basis for liability: 7
“A defendant cannot be held liable for what he said to the grand 8
jury. He may be held liable for what he said to the prosecutor if 9
his statement was not in preparation for his grand jury testimony.” 10
J.A. 1218 (Trial Tr.). We have no reason to believe the jury did 11
not follow this instruction. See United States v. Downing, 297 12
F.3d 52, 59 (2d Cir. 2002) (“Absent evidence to the contrary, we 13
must presume that juries understand and abide by a district court’s 14
limiting instructions.”) (citing Zafiro v. United States, 506 U.S. 15
534, 540-41 (1993)). Therefore, the use of grand jury testimony to 16
impeach the officers did not violate Rehberg and is not grounds for 17
reversal.1
18
1 We are mindful of the potential for jury confusion in a case such
as this, in which the underlying factual subject of the grand jury
testimony used to impeach the defendants - which could not be used
as a direct basis for suit under Rehberg - is the same as the
factual subject that underlies the suit and the previous
prosecution. In this case, that would be whether the police
officers actually saw Marshall in possession of a gun. Plainly,
there would be no such potential for confusion had the officers
given conflicting statements as to a collateral matter, such as how
brightly the street was lit on the night of the arrest. We believe
that the risk of jury confusion was adequately reduced, however, by

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9
Marshall’s use of this testimony was not limited to cross- 1
examining the witnesses, however. In both his opening and 2
summation, Marshall made references to the grand jury testimony 3
that were not self-limiting as purely for impeachment purposes. 4
These references in the summation included the following: 5
Now, if he never saw this object in the 6
physical possession of Mr. Marshall, why did 7
he swear under oath to a grand jury that he 8
did see it? I mean, those two stories aren’t 9
true; either you saw it, or you didn’t. 10
11
. . . 12
13
What he told that grand jury is a lie. 14
15
. . . 16
17
When [Burbridge] appeared before the grand 18
jury, one story. When he appeared in the 19
civil lawsuit, another story. 20
21
. . . 22
23
They duped it and put it over on the grand 24
jury with these false stories. 25
26
. . . 27
28
You can send a message through your verdict . 29
. . to any other police officer out there that 30
thinks it’s okay to get in front of a grand 31
jury and lie. 32
33
J.A. 1206, 1207, 1210, 1211 (Trial Tr.). 34
The defendants argue that these comments demonstrate that 35
plaintiff’s § 1983 claim for malicious prosecution was “based on 36
the district court’s instructions and the substantial amount of
evidence supporting Marshall’s direct case independent of the grand
jury testimony.

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10
the witness’ testimony [before the grand jury],” Rehberg, 132 S. 1
Ct. at 1506. This argument is not without some force. Although we 2
find the question to be close, on balance, we believe that the 3
district court’s limiting instructions – to the effect that the 4
jury could not base liability on the grand jury testimony - 5
sufficiently alleviated any prejudice to the point that a new trial 6
is not required.2
7
As we noted earlier, after the closing statements, the 8
district court instructed the jury that a “defendant cannot be held 9
2 We note that while the jury was deliberating, Marshall’s counsel
ascribed two purposes for his references in summation to the
defendants’ grand jury testimony: “to overcome the presumption [of
probable cause created by the indictment], one, and two, to address
the general issues of credibility.” J.A. 1308 (Trial Tr.). In
Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), we
stated that
[w]here there is some indication in the police
records that, as to a fact crucial to the
existence of probable cause, the arresting
officers may have ‘lied in order to secure an
indictment,’ and ‘a jury could reasonably find
that the indictment was secured through bad
faith or perjury,’ the presumption of probable
cause created by the indictment may be
overcome.
Id. at 162 (quoting Boyd v. City of New York, 336 F.3d 72, 77 (2d
Cir. 2003)).
The district court suggested that Rehberg might cast doubt on
the continued vitality of Manganiello, but noted that defense
counsel had not asked for an instruction limiting the grand jury
references to credibility during his adversary’s summation but that
had counsel done so, the district court would have given it, see
J.A. 1309 (Trial Tr.). When the court opined that it was now too
late for the instruction, see id., defense counsel did not take
issue with that view. Marshall and Burbridge recognize this
tension in their brief on appeal, but do not advance a completed
argument on this basis, so we do not consider how Rehberg affects
our holding in Manganiello.

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11
liable for what he said to the grand jury,” and that “[t]he 1
opening[s] and closings are not evidence.” Id. at 1218, 1217 2
(Trial Tr.). And, after the jury had begun its deliberations, the 3
district court told the jury: 4
In going through the transcript this morning, 5
I noticed that it was suggested that you send 6
a message. I don’t want you to send any 7
messages. I just want you to decide the case 8
in accordance with my instructions[.] 9
10
Id. at 1312 (Trial Tr.). The jury indicated that it understood the 11
judge’s instruction. Had the defendants so requested, the jury 12
instructions could have been crafted more specifically to ensure no 13
violation of Rehberg under any party’s interpretation of the case. 14
But no such request was made in time for it to impact the jury’s 15
deliberations. We believe the instructions given adequately 16
reflected the holding in Rehberg and mitigated the prejudicial 17
impact of the opening and closing statements to the point that a 18
new trial is not warranted. 19
2. Speedy Trial Instruction 20
Randall and Burbridge also argue that the jury should have 21
been instructed that Marshall’s criminal prosecution did not end in 22
an acquittal. The district court instructed the jury: “There’s no 23
dispute that criminal proceedings were commenced and continued and 24
that they ended in plaintiff’s favor.” J.A. 1218 (Trial Tr.). The 25
parties agree that Marshall’s case was dismissed in light of speedy 26
trial concerns, but they disagree about whether the nature of the 27

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12
dismissal should have been conveyed to the jury. We review “a 1
claim of error in the district court’s jury instructions de novo, 2
and will reverse on this basis only if the [appellants] can show 3
that in viewing the charge given as a whole, they were prejudiced 4
by the error.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 5
1994). 6
The district court’s instruction is not a basis for a new 7
trial. The malicious prosecution charge provided, in relevant 8
part, as follows: 9
A person is maliciously prosecuted when, 10
first, criminal proceedings are initiated or 11
continued against him by the defendant. Two, 12
the proceedings are terminated in his favor. 13
Three, there was no probable cause for the 14
commencement of the proceeding. And four, the 15
defendant’s actions leading to the initiation 16
of proceeding[s] against the plaintiff were 17
motivated by malice of a defendant. 18
19
There’s no dispute that criminal proceedings 20
were commenced and continued and that they 21
ended in plaintiff’s favor. 22
23
J.A. 1218 (Trial Tr.). In context, it is evident that the district 24
court’s instruction was meant to remove from the jury’s 25
consideration the second element of the malicious prosecution 26
claim. Randall and Burbridge do not dispute that Marshall’s 27
criminal case was dismissed on speedy trial grounds or that such a 28
dismissal was in Marshall’s favor. An underlying acquittal is not 29
a necessary prerequisite for a malicious prosecution charge, and 30
while it is possible that the jury inferred that the case ended in 31

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13
an acquittal, the inference that the case was procedurally 1
terminated was equally possible. All that is necessary is a 2
“favorable termination,” which is what occurred here and what the 3
district court instructed. See Rogers v. City of Amsterdam, 303 4
F.3d 155, 160 (2d Cir. 2002) (“[U]nder New York law, a dismissal 5
pursuant to New York Criminal Procedure Law § 30.30 - New York’s 6
speedy trial statute - constitutes a favorable termination [for 7
purposes of a malicious prosecution action].”); see also J.A. 115- 8
16 (Crim. Ct. Order) (dismissing Marshall’s case on the basis of 9
the same statute). The instruction’s reference to the favorable 10
termination of the prosecution without further elaboration is 11
therefore not a basis for reversal or a new trial. 12
3. Exclusion of Recognition Evidence 13
Finally, Randall and Burbridge argue that the district court 14
erred in excluding evidence that Burbridge recognized Marshall on 15
the night of the arrest from Burbridge’s review of NYPD arrest and 16
complaint reports. Before trial, the district court excluded the 17
recognition evidence on the basis that there was “only one issue” 18
in the case - whether the officers saw Marshall with the gun - and 19
that it did not “want the case expanded” to include the broader 20
issue of whether the initial stop was valid. J.A. 875-76 (Hearing 21
Tr.). The district court’s ruling did not inhibit Marshall’s 22
counsel from nearly opening the door to the recognition evidence by 23
intimating that the stop was unlawful, however. For instance: 24

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14
Q: Now at some point, Officer Burbridge 1
suggested that you stop Mr. Marshall, true? 2
3
[Defendants’ Attorney]: Objection. Objection, 4
Your Honor. That question is the subject of 5
an in limine ruling. 6
7
The Court: A what? 8
9
[Defendants’ Attorney]: An in limine ruling. 10
11
The Court: Repeat the question, please. 12
13
(Record read back by the reporter.) 14
15
The Court: Overruled. 16
17
Id. at 989 (Trial Tr.). After several similar questions, during a 18
break without the jury present, defense counsel sought a ruling 19
that Marshall had opened the door to the reasons for the initial 20
stop. The district court denied the motion, stating that no door 21
had been opened and that Marshall had “been referring . . . to the 22
period from the time the Defendants first observed the Plaintiff 23
until the arrest.” Id. at 1097 (Trial Tr.). 24
Randall and Burbridge moved unsuccessfully for a mistrial on 25
the basis that Marshall had opened the door but that they had not 26
been allowed to present their recognition testimony. They then 27
asked the district court to give a curative instruction indicating 28
that the initial stop was not at issue. The district court gave 29
the curative instruction: 30
The initial stop was lawful. You can assume 31
that. That’s not the violation that’s claimed 32
here. The evidence relating to observation 33
and acts surrounding the stop may be 34
considered in deciding credibility. So you 35

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15
can consider all of the evidence from the time 1
they first observed, according to their 2
evidence, the defendant up to the time when he 3
was placed under arrest. 4
5
Id. at 1217 (Trial Tr.). 6
The district court’s exclusion of the recognition evidence 7
proffered by the defendants is not a basis for disturbing the 8
jury’s judgment. We review this evidentiary ruling for abuse of 9
discretion and will reverse only if the “erroneous ruling affected 10
a party’s substantial rights.” Marcic, 397 F.3d at 124. On 11
appeal, Burbridge and Randall argue, as they did at trial, that 12
Marshall opened the door by intimating the stop was improper and 13
that they were unduly prejudiced because they were not allowed to 14
elicit the true basis for the stop – recognition of Marshall from a 15
review of NYPD arrest and complaint reports. 16
The district court’s rulings regarding the recognition 17
evidence were a bit uneven. Although it seemed before trial that 18
all evidence relating to the initial stop would be excluded, the 19
district court allowed some evidence about the stop, but not the 20
recognition evidence sought by the defendants. The district 21
court’s curative instruction, however, alleviated any confusion on 22
this score and mitigated any damaging effect of Marshall’s 23
questioning about the stop. Nor is there any basis to believe that 24
the jury disregarded the district court’s instruction. See 25
Downing, 297 F.3d at 59. In sum, the district court’s handling of 26
the recognition evidence issue does not merit a new trial. 27

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CONCLUSION 1
For the foregoing reasons, the judgment of the district court 2
is AFFIRMED. 3

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