United States Court of Appeals

Fifth Circuit



## FILED

December 5, 2003

Charles R. Fulbruge III

Clerk Revised December 29, 2003

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 00-50591

ALFRED CASTELLANO,

Plaintiff-Appellee,

versus

CHRIS FRAGOZO, Etc.; ET AL,

Defendants,

CHRIS FRAGOZO, Individually and in his

Official Capacity as a San Antonio Police Officer;

MARIA SANCHEZ, Individually,

Defendants-Appellants.

Appeals from the United States District Court

for the Western District of Texas

Before KING, Chief J udge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES,

S M ITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES,

STEWART, DENNIS, CLEMENT, and PRADO, Circuit Judges.

HIGGINBOTHAM, Circuit Judge:

Today we ex amine our uncertain law attending a claim of

malicious prosecution with its undisciplined mix of constitutional

and state tort law. We decide that “malicious prosecution”

standing alone is no violation of the United States Constitution,

and that to proceed under 42 U.S.C. § 1983 such a claim must rest

upon a denial of rights secured under federal and not state law.1 510 U.S. 266, 271 (1994).

2

Alfred Castellano sought damages for his wrongful conviction

of arson, asserting claims under the First, Fourth, Fifth, Sixth,

Eighth, and Fourteenth Amendment s. Before trial the magistrate

judge concluded that alleging the elements of malicious prosecution

under Texas law stated a claim, but only under the Fourth

Amendment. The trial judge passed over defendants’ claim of

absolute immunity, accepting their argument that the Supreme Court

in Albright v. Oliver 1 held that if there is an adequate state tort

remedy there can be no claim for a denial of due process, and

dismissed all claims under any other constitution al provision.

With the Texas law of malicious prosecution now the source for his

§ 1983 claim, Castellano amended his complaint, dropping his state

law claim. A jury returned a substantial award of money damages.

We conclude that the trial court’s reading of Albright

, while

clinging to the law of this circuit, simultaneously misread both

the Fourth and Fourte enth Amendments. As for the Fourteenth

Amendment claims, we reject the trial court ruling that there was

no denial of due process, either in its primitive form that § 1983

cannot sustain such a claim, or because the state provides a postdeprivation tort remedy. We hold that a state’s manufacturing of

evidence and knowing use o f that evidence along with perjured

testimony to obtain a wrongful conviction deprives a defendant of

his long recognized right to a fair trial s ecured by the Due2 Parratt v. Taylor , 451 U.S. 527 (1981).

3 510 U.S. 266 (1994).

3 Process Clause, a deprivation of a right not reached by the

Parratt 2 doctrine. At the same time, we note that Castellano faces

obstacles in pursuing his wrongful conviction claim s on remand

giv en that Sanchez and Fragozo enjoy absolute immunity for their

testimony at trial and have substantial arguments that their

manufacturing of evidence could not have created, without the trial

testimony, a wrongful conviction.

Given that the district court dismiss ed the Fourteenth

Amendment claims, albeit erroneously, the verdict cannot be

sustained on the Fourth Amendment alone since it rests in part on

events at trial

- events not protected by the Fourth Amendment. It

is not possible to separate the damages awarded for violations of

the Fourth Amendment from those awarded for wrongful conviction.

Nor can we sustain the verdict because the jury effectively decided

the Fourteenth Amendment claim.

We begin by reciting the history of the case. We then examine

the development of malicious prosecution as a claim under § 1983

–

including the contours of the state law tort, its early development

as a federal claim in this circui t, as well as the impact of

A lbright v. Oliver 3 on this circuit’s precedent. After examining

our own law, we turn to the law of other circuits and conclude that

“malicious prosecution” standing alone is no violation of the4

United States Constitution. We then return to the case at hand,

and in doing so we examine Albright , finding no support there for

the magistrate judge’s ruling that by using the elements of the

state tort of malicious prosecution, Castellano’s full claim could

be tethered to the Fourth Amendment. We conclude by finding that

the verdict cannot be sustained and that the case must be remanded

for a new trial.

I

1

All of this stems from a case drawn from the entangled lives

of Alfred Castellano, Maria Sanchez, a trusted employee, and Chris

Fragozo, a City of San Antonio police officer who did security work

for Castellano’s chain of fast order restaurants around the city of

San Antonio called Fred’s Fish Fry. Castellano worked for his

father in starting the business, primarily offering fried catfish

and chicken to go. There were three stores when his father died

and eighteen on October 31, 1984, when one of the restaurants,

Number 7, b urned. By this time, Castellano’s business was

prospering and he held a prominent citizen’s position on the Fire

and Police Civil Service Commission, hearing appeals of police

personnel from decisions of the Chief of Police.

Officer Castro, a veteran pol ice officer and member of the

Arson S quad, quickly determined that the fire had been

intentionally set and was an “inside job.” That it was arson has5

never been an issue. The investigation led to Castellano, largely

on the testimony of Maria Sanchez and a tape recording she produced

with a recorder supplied by Fragozo.

Castro and his partner took the case to the District Attorney,

who prepared and, along with Castro, signed an affidavit. Castro

presented the affidavit to a magistrate judge who issued an arrest

warrant. Castro arrested Castellano, taking him to the police

station. He was released a few hours later after being booked and

facing an array of cameras. A later examining trial found probable

cause to proceed. A grand jury indictment and trial followed.

Castellano was convicted in a prominent jury trial by a state court

jury in San Antonio and sentenced to five years probation.

Throughout Castellano d enied involvement in the arson. His

story was that he fired Maria when she refused to take a polygraph,

a company policy when money was missing; that Maria and Fragozo

were lovers; and that he had refused to give Fragozo a copy of a

police examination Fragozo had to pass for promotion. Maria’s

story was that Castellano had sought her help in the arson and she

taped conversations with him to protect herself if he did burn the

restaurant.

In 1993, on his third habeas attempt, the Texas Court of

Criminal Appeals set aside the conviction and remanded the case to

the trial court. The District Attorney then dismissed the case for

“lack of sufficient evidence,” a predic table outcome given the4 E x parte Castellano , 863 S.W.2d 476, 479 (Tex. Crim. App.

1993).

6 findings of the state habeas judge adopted by the Texas Court of

Criminal Appeals.

The findings included:

Chris Fragozo, a police officer with the City of San

Antonio, attempted to enlist Clemencia Jiminez as a

witness against A pplicant and aided Maria Sanchez in

altering the tape recordings offered into evidence. The

tapes were altered to appear that the Applicant was

admitting to the arson when in fact he had no knowledge

of its commission.

Maria Sanchez and Chris Fragozo collaborated together and

without their testimony and the altered tapes, there is

insufficient evid ence to sustain a finding of guilt in

this case. 4

Following the dismissal of charges, Castellano filed suit in

the District Court of the 288 th Judicial District, Bexar County,

Texas, against Sanchez, Fragozo and Castro, in both their

individual and official capacities, and the City of San Antonio.

Castellano claimed in this § 1983 suit that defendants were guilty

of malicious prosecution and had denied him rights secured by the

First, Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments.

The case was removed to federal court and referred to a

magistrate judge, where it was mired in pretrial proceedings over

the next six years. During these proceedings, all defendants,

except Castro, Sanchez, and Fragozo, w ere dismissed. And,

critically, the magistrate judge’s focus was upon the elements of

the Texas law of malicious prosecution as sufficient to state a7

constitutional violation with little examination of particular

violation beyond the conclusion that “malicious prosecution” could

proceed only under the Fourth Amendment – but not the Fourteenth.

This view simultaneously to ok out the Fourteenth Amendment and

overlooked the limits of the Fourth, as we will explain. The case

was tried to a seven-person jury, which returned a verdict awarding

$3,000,000 in compensatory damages and $500,000 in punitive damages

against Sanchez and Fragozo while exo nerating Officer Castro. A

divided panel of this court upheld the judgment entered on the

verdict, and en banc review was granted.

2

The civil trial was a retrial of the criminal case. In large

terms the jury was asked to decide whether Castellano was an

arsonist or reasonably believed to be so, or rather, whether he was

the victim of a conspiracy between Sanchez and Fragozo, joined by

Castro, an ambitious cop. The jury plainly was persuaded that

Castellano was the victim of Sanchez and Fragozo, but not Castro.

With only the Fourth Amendment claim left in the case, the

trial court instructed the jury:

Castellano claims that Alfred Castro and Chris Fragozo,

while acting under color of law, intentionally violated

his constitutional right to due process by mali ciously

prosecuting him for the criminal offense of arson.

Castel l ano further claims that Maria Sanchez, as an

individual, intentionally violated the same

constitutional right.

The jury was told that Castellano must prove that8

[t]he defendants caused or commenced or aided a criminal

proceeding against him; the defendants acted without

probable cause; the criminal action terminated in his

favor; he was innocent of arson; the defendants acted

with malice by prosecuting hi m for arson; [and] he was

damaged by the criminal proceeding.

3

Fragozo and Sanchez argue here that the judgment against them

rests on an impermissible blend of state tort and constitutional

rights and that Castellano at best has only a Fourth Amendment

claim.

Castellano urges that all damages flow from the initial

wrongful arrest and seizure in violation of the Fourth Amendment,

a theory of recovery not forbidden by Albright ; and that all of his

claims u nder the First, Sixth, Eighth, and Fourteenth Amendments

were dismissed at the urging of the defendants who did not object

to the jury charge, and thus they cannot complain that the trial

itself reintroduced Castellano’s due process claims, claims that

were properly before the jury. As we will explain, we agree that

the trial court’s instructions were erroneous, although in

conformity with existing law of the circuit. Contrary to

defendants’ contentions, the error was in not allowing the jury to

con sider fully the claim of wrongful conviction by extruding it

through the Fourth Amendment.

II

19

We have been inexact in explaining the elements of a claim for

malicious prosecution brought under the congressional grant of the

right of suit under 42 U.S.C. § 1983. We are not alone. Other

circuits have been facing similar difficulties and share with us a

common shortcoming

– either not demanding that this genre of claims

identify specific constitutional deprivations or struggling in

their efforts to do so. This laxness has tolerated claims in which

specific constitutional violations ar e often embedded, but float

unspecified, undefined, and hence unconfined inside a general claim

of malicious prosecution. Its characteristic weak discipline has

permitted the blending of state tort and constitutional principles,

inattentive to whether the court is adopting state law as federal

law in a process of federal common law decision-making, such as

detailing remedial responses to a constitutional deprivation, or

whether the court is creating a freestanding constitutional right

to be free of malicious prosecution. On examination, the latter

appears to rest on a perception that the sum of elements borrowed

from state tort law by some synergism is a constitutional right

itself

– in its best light, that the elements of the state law tort

of malicious prosecution, when proved, inevitably entail

constitutional deprivation. While sometimes this is so, it is not

inevitable, and the price of cutting the tether from constitutional

text is too great to permit it to continue.

We are persuaded that we must return to basics. And in doing

so we conclude that no such freestanding constitutional right to be5 510 U.S. 266 (1994).

6 F OWLER V. H ARPER ET AL ., T HE L AW OF T ORTS § 4.1 (3d ed. 1996).

7 See Richey v. Brookshire Grocery Co.

, 952 S.W.2d 515, 517-18

(Tex. 1997).

10 free from malicious prosecution exists. This conclusion in turn

means that we must insist on clarity in the identity of the

constitutional violations asserted. In this effort, we first look

at the state law tort of malicious prosecution and then look to the

enforcement of constitutional protections enjoyed by persons

accused of crimes, all as informed by the decision of the Supreme

Court in Albright v. Oliver

. 5

2

Despite frequent u se of the term “malicious prosecution” to

describe a wide range of events attending a filing of criminal

charges and even continuing through trials, the tort of malicious

prosecution has a relatively narrow and widely accepted definition.

The tort of malicious prosecution of criminal proceedings

occurs when o ne citizen initiates or procures the

initiation of criminal proceedings against an innocent

person, for an improper purpose and withou t probable

cause therefor, if the proceedings terminate favorably

for the person thus prosecuted. 6

It signifies that initiation of charges without probable cause lies

at the heart of this definition, one t hat is deployed by state

courts throughout the country, including Texas. 7

38 467 F.2d 113, 120 (5th Cir. 1972).

9 734 F.2d 254, 260 (5th Cir. 1984).

10 946 F.2d 1178, 1181 n.2 (5th Cir. 1991).

11 Id.

11 In Shaw v. Garrison

, we recognized a “federal right to be free

from bad faith prosecutions” without elaborating on the source of

that right. 8 Twelve years later we held in W heeler v. Cosden Oil

& Chemical Co. that “the Fourteenth Amendment imposes a duty on

state prosecutors t o charge only upon ascertaining probable

cause.” 9 Judge Gee’s opinion, thoughtful as it was, proved to be

a wrong turn

– one quickly flagged but which nonetheless stood

until Albright

, ten years later. W heeler’s requirement of probable

cause to initiate gave common footing to a right secured by the

Fourteenth Amendment to be free of charges initiated without

probable cause and the identical duty imposed by the classic common

la w tort of malicious prosecution. The ability of the W heeler

holding to survive Supreme Court scrutiny was questio ned in

Brummett v. Camble because it was based on an implied right rather

than a “more textual footing.” 10 But the B rummett opinion ventured

that a malicious prosecution claim based on the infringement of a

specific constitutional guarantee would survive review. 1 1 Other

pre- Albright cases recognized that claims of false arr est, false

imprisonment, and malicious prosecution could implicate Fourteenth

and Fourth Amend ment rights “when the individual complains of an12 Thomas v. Kipperman

, 846 F.2d 1009, 1011 (5th Cir. 1988);

see also Sanders v. English

, 950 F.2d 1152, 1159 (5th Cir. 1992)

(same).

13 510 U.S. 266 (1994).

14 Id. at 269.

15 Id.

16 Id.

17 Id. at 271.

12 arrest, detention, and prosecution without probable cause.” 12 None

of this court’s pre- Albright decisions achieved a fit b etween a

claim of malicious prosecution and claims under the Constitution,

including the Fourth Amendment. The Supreme Court in Albright v.

Oliver 13 defined a starting point.

4

Albright alleged that Officer Oliver instituted a baseless

charge against him and gave misleading testimony at a preliminary

hearing. 14 The state court found probable cause to try Albright,

but the charges were dismissed prior to trial. 1 5 Albright sued

under § 1983 claiming the officer “deprived him of substantive due

process under the Fourteenth Amendment – his ‘liberty interest’ –

to be free from criminal prosecution except upon probable cause.” 16

Chief Justice Rehnquist’s plurality opinion, joined by

Justic es O’Connor, Scalia, and Ginsberg, held that “it is the

Fourth Amendmen t, and not substantive due process” under which

Albright’s claim must be judged. 17 The plurality reasoned that the18 Id. at 273 (quoting Graham v. Connor , 490 U.S. 386, 395

(1989)).

19 Id. at 271, 275.

20 Id. at 286-89 (Souter, J., concurring); id. at 275-76

(Scalia, J., concurring).

21 Id. at 277-81 (Ginsburg, J., concurring).

13 Fourth Am endment addresses concerns of pretrial deprivations of

liberty, and “[w]here a particular Amendment ‘provides an explicit

textual source of constitutional protection’ against a particular

sort of government behavior, ‘that Amendment, not the more

generalized notion of ‘substantive due process,’ must be the guide

for analyzing these claims.’” 1 8 Noting that Albright’s claim was

not for a viola tion of procedural due process or a violation of

Fourth Amendment rights, the Court di smissed it and expressed no

view on whether his claim would succeed under the Fourth

Amendment. 19

Justices Souter and Scalia each wrote separately to emphasize

differences with the plurality, but each agreed that there was no

need to look beyond the Fourth Amendment in Albrigh t’s case. 2 0

Just i ce Ginsburg’s separate opinion explained that the Fourth

Amendment prohi bition on unreasonable seizures could extend to

post-arra ignment travel restrictions such as those placed on

Albright, and thus a Fourth Amendment claim would not accrue until

the charges against Albright were dismissed. 2122 Id. at 281 (Kennedy, J., concurring).

23 Id. at 283.

24 Id. at 284 (citing Parratt v. Taylor

, 451 U.S. 527, 535-544

(1981)).

25 Id. at 285-86. Justice Stevens took issue with this

interpretation of Parratt in his dissent, arguing that Parratt only

applies to those torts which any person could commit, and “its

rationale does not apply to officially authorized deprivations of

liberty or property.” Id. at 313 (Stevens, J., dissenting).

14 J ustice Kennedy, joined by Justice Thomas, agreed that the

Fourth Amendment applied to claims of unr easonable seizures, but

felt that Albright’s claim was for the instigation of the

prosecution, not any resulting seizure. 22 He stated that while “due

process r equirements for criminal proceedings do not include a

standard for the initiation of a criminal prosecution,” the “Due

Process Clause protects interests other than the interest in

freedom from physical restraint.” 23 Assuming a rguendo that some of

these interests protected by the Due Process Clause include those

protected by the common law of torts (such as freedom from

malicious prosecution), Kennedy stated th at “our precedents make

clear that a state actor’s random and unauthorized deprivation of

that interest cannot be challenged under [§ 1983] so long as the

State provides an adequate postdeprivat ion remedy.” 2 4 Kennedy

concluded that because the state provides a cause of action for

malicious prosecution, a § 1983 claim is barred under the holding

of Parratt

. 25 Where a state did not provide a tort remedy for26 Id. at 286 (Kennedy, J., concurring).

27 294 F.3d 722 (5th Cir. 2002).

28 Castellano v. Fragozo

, 311 F.3d 689, 698-99 (5th Cir. 2002).

29 Gordy

, 294 F .3d at 725 (citing P iazza v. Mayne

, 217 F.3d

239, 245 (5th Cir. 2000)).

30 Id. at 726.

15 malicious prosecution “there would be force to the argument that

the malicious initiation of a baseles s criminal prosecution

i nfringes an interest protected by the Due Process Clause and

enforceable under § 1983.” 26

5

A series of our post- Albright decisions evolved into the rule

articulated in Gordy v. Burns

, 27 the decision the panel majority

found to be controlling. 28 G ord y holds that “the rule in this

circuit is that the elements of the state-law tort of malicious

prosecution and the elements of the constitutional tort of ‘Fourth

Amendment malicious prosecution’ are coextensive.” 29 Furthermore,

“a plaintiff in a § 1983 malicious prosecution action need

establish only the elements of common-law malicious prosecution.

.

. . [C]ourts must look to the elements of a malicious prosecution

claim under the law of the state where the offense was committed.” 30

This holding is the resu lt of persisting uncertainties in

precedent accumulating over time. Judge Barksdale’s dissent from

the panel majority observes that the post- Albright cases failed to31 See Castellano , 311 F.3d at 722-24 (Barksdale, J.,

dissenting).

32 Id. at 722 (quoting Sanders v. English

, 950 F.2d 1152, 1159

(5th Cir. 1992)).

33 See Gordy , 294 F.3d at 725.

34 See Piazza v . Mayne , 217 F.3d 239, 245 (5th Cir. 2000)

(“Piazza asserts on appeal (and Mayne does not dispute) that the

requirements of the state law tort and the constitutional tort are

the same. Thus, we assume without deciding that the requirements

are coextensive in the context of a § 1983 action.”).

35 See Gordy , 294 F.3d at 725.

16 distinguish our pri or precedent which relied on the Fourteenth

Amendment, a position his di ssent urges A lbright called into

question. 31 We add that many of the recent cases fail to note the

qualifying language of earlier decisions, which state that

malicious prosecution claims implicate the Fo urth and Fourteenth

Amendments “‘when the individual complains of an arrest, detention,

and prosecution without probable cause.’” 32 As we will explain,

Albright did not speak to the Fourteenth Amendment beyond eschewing

reliance upon substantive d ue process to create a requirement of

probable cause to initiate a p rosecution, albeit a holding that

drained Wheeler of precedential force.

To look forward, we first look back to find the trace to Gordy

that will inform our effort to chart a new path. Gordy relied on

Piazza

, 33 acknowledging that we assum ed without deciding that

satisfying the Texas state law elements was suffic ient. 3 4

Similarly, Gordy relied on Evans

, 35 which in turn cites Brummett for36 Evans v. Ball

, 168 F.3d 856, 863 n.9 (5th Cir. 1999) (citing

Brummett v. Camble , 946 F.2d 1178, 1183 (5th Cir. 1991)).

37 Brummett , 946 F.2d at 1183.

38 Id. at 1183-84.

39 See Heck v. Humphrey

, 512 U.S. 477, 484-87 (1994) (holding

that “in order to recover dam ages for allegedly unconstitutional

conviction or imprisonment, or for other harm caused by actions

whose unlawfulness would render a conviction or sentence invalid,

a § 1983 plaintiff must prove that the conviction or sentence has

been reversed on direct appeal, expunged by e xecutive order,

declared invalid by a state tribunal a uthorized to make such

determination, or cal led into question by a federal court's

issuance of a writ of habeas corpus”).

40 See Gordy

, 294 F.3d at 725 (citing Kerr v. Lyford

, 171 F.3d

330 (5th Cir. 1999)).

17 the holdi ng that “malicious prosecution may be a constitutional

violation, but only if all of its common law elements are

establish ed.” 36 Yet B rummett made clear that “the federal courts

have repeatedly held that common law and state tort law do not

define the scope of liability under § 1983.” 37 The court in

Brummett did look to the common law el ements of malicious

prosecu tion, and out of concern that plaintiffs would relitigate

state convictions in federal court, adopted the common law element

that the plaintiff show proof of fa vorable termination of the

prosecution. 38 Similar concerns led the Supreme Court to adopt an

analogous element as well. 39 Brummett did not, however, hold that

all common law tort elements were required for a federal claim.

Finally, Gordy relied on K err

. 40 K err states without

explanation that the elements for a § 1983 claim of malicious41 Kerr

, 171 F.3d at 340 (citing Hayter

, 154 F.3d 269, 275 (5th

Cir. 1998)).

42 See Hayter

, 154 F.3d at 275 (citing Taylor

, 36 F.3d 453, 455

(5th Cir. 1994)).

43 Taylor

, 36 F.3d at 455 (citing Brown

, 653 F.2d 196, 198 (5th

Cir. 1981)).

44 See Gordy , 294 F.3d at 726 n.3.

45 See Kerr

, 171 F.3d at 342-43 (Jones, J., specially

concurring).

18 prosecution are those of Texas state law, citing Hayter v. City of

Mount Vernon

. 41 H ayter cites Taylor v. Gregg

, 42 which relies in turn

on Brown v. United States

. 43 As the G ordy opinion notes, Brown was

a Federal Tort Claims Act case, and the FTCA requires the court to

look to the law of the place where the alleged tort occurred. 44 In

none of the opinions that ultimately rely on Brown did we explain

why the requirements of the FTCA should dictate the elements of a

§ 1983 claim.

With hindsight, our precedent governing § 1983 maliciou s

prosecution claim s is a mix of misstatements and omissions which

leads to the inconsistencies and difficulties astutely pointed to

in Judge Barksdale’s dissent from the panel opinion and Judge

Jones’s special co ncurrence in K err

. 45 We are not alone in this

drift. Other circuits have traveled uneven paths as well, and

numerous approaches have developed after Albright

.

646 See infra notes 50-67 and accompanying text.

47 See infra notes 68-81 and accompanying text.

48 See Thacker v. City of Columbus

, 328 F.3d 244, 258-59 (6th

Cir. 2003) (noting that contrary to binding circuit precedent, some

panels do not recognize a § 1983 malicious prosecution claim, and

stating that the circuit has yet to define the eleme nts of a

federal malicious prosecution claim).

49 See Pace v. City o f Des Moines , 201 F.3d 1050, 1055 (8th

Cir. 2000) (“It is well established in this circuit that an action

for malicious prosecution by itself is not punishable under § 1983

because it does not allege a c onstitutional injury.” (internal

quotations and citations omitted)).

19 O ur sister circuits take two broad approaches to malicious

prosecution claims under § 1983. The first is to require proof of

all common law elements of malicious prosecution, usually based on

the law of the state where the offense occurred, as well as proof

of a constitutional violation

– an approach adopted in various

forms by the First, Second, Third, Ninth, and Tenth Circuits. 46 The

second approach views malicious prosecution as unenforceable under

§ 1983, looking t o the common law elements of the tort only as

needed to assist the enforcement of analogous c onstitutional

violations

- seizures under the Fourth Amen dment, for example.

This is t he view of the Fourth, Seventh, and Eleventh Circuits. 4 7

The app roach of the Sixth Circuit is not clear, as it also has

conflicting precedents and has yet to articulate the elements of a

§ 1983 malicious prosecution claim. 48 Similarly, the Eighth

Circuit’s approach is undefined b eyond insisting upon a

constitutional violation. 4950 241 F.3d 46, 53 (1st Cir. 2001) (listing (1) the

commencement or continuation of a criminal proceeding against the

eventual plaintiff at the behest of the eventual defendant; (2)

the termination of the proceeding in favor of the accused; (3) an

absence of probable cause for the charges; and (4) actual malice).

51 Id.

52 Id.

53 Id. at 54; see Britton v. Maloney

, 196 F.3d 24, 28 (1st Cir.

1999) (“We will simply assume, for the purposes of the analysis,

that the type of conduct which constitutes a malicious prosecution

under state law can sometimes constitute a violation of the Fourth

Amendment as well.”).

20 In N ieves v. McSweeney , the First Circuit cited four state

common law elements it requires for a malicious prosecution claim. 50

But the court then stated that the plaintiff “must show a

deprivation of a federally-protected right.” 51 The court reasoned

that procedural due process cannot be the basis of the claim

because Massachusetts provides an adequate r emedy, and A lbright

forecloses substantive due process claims. 52 The court “assume[d]

without deciding that [a stat e law] malicious prosecution can,

under some circumstances, embody a violation of t he Fourth

Amendment and thus ground a cause of action under section 1983.” 53

Turning to the case at bar, the court acknowledged that while

malicious prosecution permits damages for deprivations of liberty

pursuant to legal process, the plaintiffs had been arrested without

a warrant. Therefore, the plaintiffs failed to allege a seizure

which could be part of their malicious prosecut ion since a54 Nieves , 241 F.3d at 54.

55 Id. at 54-55.

56 Singer v. Fulton County Sheriff

, 63 F.3d 110, 116 (2d Cir.

1995) (stating that “the court must engage in two inquiries:

whether the defendant's conduct was tortious; and whether the

plaintiff's injuries were caused b y the deprivation of liberty

guaranteed by the Fourth Amendment”); see also Murphy v. Lynn

, 118

F.3d 938, 944 (2d Cir. 1997) (quoting Singer , 63 F.3d at 116, for

the holding that a § 1983 “pla intiff must show conduct that was

tortious under state law and that injury was ‘caused by the

deprivation of liberty guaranteed by the Fourth Amendment’”).

57 Singer , 63 F.3d at 116 n.5.

58 Id. at 116-17.

21 warrantless arrest is not pursuant to legal proce ss. 54 The

plaintiffs’ post-arraignment restrictions and harms (release on

their own recognizance, pending serious criminal charges, sullied

r eputations, pretrial court appearances, and trial) were not

seizures. 55

The Second Circuit also requires proof of a tort under state

common law and an injury caused by a deprivation of liberty

guaranteed by the Fourth Amendment. 56 That court has noted that it

is “theoretically possible” for a plaintiff to premise a malicious

prosecution claim on some other constitutional right, in which case

the standard governing that right would determine whether there was

a constitutional violation. 57 Like the First Circuit, the Second

require s a seizure pursuant to legal process, ruling out

warrantless arrests. 58 However, the Second Circuit has found that59 Murphy

, 118 F.3d at 946 (“[W]hile a state has the undoubted

authority

.. . to restrict a properly accused citizen's

constitutional right to travel outside of the state as a condition

of his pretrial release, and may order him to make periodic court

appearances, such conditions are appropriately viewed as seizures

within the meaning of the Fourth Amendment.”).

60 See Donahue v. Gavin

, 280 F.3d 371, 380 n.16 (3d Cir. 2002)

(stating that it had remanded a previous § 1983 case because “the

district court did not rule on whether [the plaintiff] had

satisfied the common law elements of a malici ous prosecution

claim”).

61 Gallo v. Cit y of Philadelphia , 161 F.3d 217, 222 n.6 (3d

Cir. 1998).

62 Id. at 222.

22 post-arraignment travel restrictions are sufficient to constitute

a seizure. 59

The Third Circuit likewis e requires proof of all common law

elements, as well as a constitutional violation, 6 0 but not with

certainty. Rather, it has questioned the role of additional common

law elements of malicious prosecution: “For instance, if the harm

alleged is a seizure lacking probable cause, it is unclear why a

plaintiff would have to show that the police acted with malice.” 61

However, it has not abandoned this requirement. Like the Second

Circuit, post-arraignment restrictions ($10,000 bond, travel

restrictions, weekly contact with pretrial services, and attendance

at all pretrial hearings) constitute a seizure. 6 2 Unlike most

circuits, the alleged constitutional violation is not limited to a

Fourth Amendment seizure, and includes any constitutional

violation, including violations of procedural due process (but not63 See Merkle v. Upper Dublin Sch. Dist.

, 211 F.3d 782, 792 (3d

Cir. 2000) (citing Torres v. McLaughlin

, 163 F.3d 169 (3d Cir.

1998)).

64 Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996)

(stating that “our circuit takes the common law elements of

malicious prosecution as the ‘starting point’ ... but always

reaches the ultimate question

... whether the plaintiff has proven

a constitutional violation”).

65 Id. at 1563-64.

23 substantive due process), 63 a distincti on that will draw our

attention in this case.

The Tenth Circuit is more restrictive, requiring proof of all

common law e lements, but limiting the additional constitutional

violation to a violation of “the Fourth Amendment’s right to be

free from unreasonable seizures.” 64 The court noted that where an

independent and untainted determination of probable cause is made

at the arraignment, the post-arraignment detention is not a seizure

even if the arrest was illegal. 65

In the Ninth Circuit the state tort of malicious prosecution

alone is not sufficient f or a § 1983 claim if there is a state

remedy available, but there is an exception if the defendant had

the intent “to deprive a person of equal protection of the law or

otherwise to subject a person to a denial of constitutional66 Poppell v. City of San Diego

, 149 F.3d 951, 961 (9th Cir.

1998) (citing Usher v. City of Los Angeles

, 828 F.2d 556, 562 (9th

Cir. 1987)).

67 Id. at 962-63.

68 223 F.3d 257, 262 (4th Cir. 2000) (internal citations

omitted).

69 Id. at 2 61 (citing B ritton v. Maloney

, 196 F.3d 24, 28-29

(1st Cir. 1999); M urphy v. Lynn

, 118 F.3d 938, 946 (2d Cir. 1997);

Taylor v. Meacham , 82 F.3d 1556, 1561 (10th Cir. 1996)).

24 rights.” 66 The plaintiff must satisfy the state law elements and

the element of purpose to deprive a constitutional right. 67

Adopting the second of th e two broad approaches, the Fourth

Circuit in Lambert v. Williams held:

[T]here is no such thing as a “§ 1983 malicious

prosecution” claim. What we termed a “malicious

prosecution” claim . . . is simply a claim founded on a

Fourth Amendment seizure that incorporates elements of

the analogous common law tort of malicious

prosecution--specifically, the requirement that the prior

proceeding terminate favorably to the plaintiff. It is

not an independent cause of action. 68

Interestingly, the Fourth Circuit cites cases from the First,

Second, and Tenth Circuits as taking the same approach it adopted, 69

pointing to the su btlety of the difference between the two

approaches. The difference, nonetheless central, is that when the

constitutional violation is the focus, only those common law

elements which are consistent with enforcement of a constitutional

right are incorporated, and those that are not are rejected.

For instance, the Fourth Circuit has rejected the common law

malice requirement, “since the reasonableness of a seizure under70 Id. at 262 n.2 (internal quotations marks omitted).

71 Id. at 262 n.3. As mentioned, this court took a similar

approach by adopting only this element in Brummett v. Camble , 946

F.2d 1178, 1183 (5th Cir. 1991), as did the Supreme Court in Heck

v. Humphrey , 512 U.S. 477 (1994).

72 Lambert , 223 F.3d. at 262 (quoting Imbler v. Pachtman , 424

U.S. 409, 417 (1976)).

73 Id. (citing Heck

, 512 U.S. at 483-84 (finding a legality of

confinement claim analogous to the malicious prosecution tort, and

incorporating into the federal claim the common law prerequisite of

termination of the prior criminal proceeding in fa vor of the

accused); Memphis Community Sch. Dist. v. Stachura , 477 U.S. 299,

305-06 (1986) (incorporating common law damages principles into a

§ 1983 claim and finding that the abstract "value" of

constitutional rights cannot form the basis of compensatory

relief); Carey v. Piphus

, 435 U.S. 247, 253-67 (1978) (structuring

compensatory damages principles under § 1983 by reference to common

law); Imbler

, 424 U.S. at 422-29 (incorporating the common law

principle of prosecutorial immunity)).

25 Fourth Amendment jurisprudence should be analyzed from an objective

perspective.” 70 On the other hand, that court has incorporated the

requirement of a favorable termination, not only as a prerequisite

to recovery, but also to establish the time of accrual. 71 The court

stated that incorporating common law elements was not done to

create a new cause of action, but rather was “in recognition of the

fact that § 1983 was designed to create a ‘special species of tort

liability.’” 72 It pointed to several Supreme Court cases where

common law elements were incorporated into § 1983 claims. 73

The Seventh Circuit, like t he Fourth, does not recognize a

federal claim of malicious prosecution: “[I]f a plaintiff can

establish a violation of the fourth (or any other) amendment there74 Newsome v. McCabe , 256 F.3d 747, 751 (7th Cir. 2001).

75 Id.

76 Id. at 750.

77 Id . at 752 (citing Brady v. Maryland

, 373 U.S. 83 (1963)).

26 is nothing but confusion to be gained by calling the legal theory

‘malicious prosecution.’” 74 Instead, “[c]laims of malicious

prosecution should be analyzed ... under the language of the

Constitution itself and, if state law withholds a remedy, under the

approach of Parratt ,” whereby the adequacy of a state law remedy

bars a due process claim. 75 The Seventh Circuit explicitly rejected

its earlier holdings which required the state law elements of the

tort to be satisfied, stating that “whatever scope malicious

prosecution may have as a constitutional tort after A lbright

, it

does not depend on state law in this way.” 76 It had no occasion to

consider which common law tort elements of malicious prosecution it

would incorporate. Finally, it recognized that Newsome had stated

a due process claim “if the prosecutors withheld material

exculpatory details.” 77

The Eleventh Circuit takes an approach quite similar to that

of t he Fourth Circuit. In Whiting v. Traylor

, the court stated

that labeling a § 1983 claim as a malicious prosecution claim

can be a shorthand way of describing a kind of legitimate

section 1983 claim: the kind of claim where the

plaintiff, as part of the commencement of a criminal

proceeding, has been unlawfully and forcibly restrained78 85 F.3d 581, 584 (11th Cir. 1996).

79 Id. at 585 (citing Heck v. Humphrey , 512 U.S. 477 (1994)).

80 Id. ; see also Wood v. Kesler

, 323 F. 3d 872, 881-82 (11th

Cir. 2003) (d iscussing incorporation of both state and federal

common law tort elements).

8 1 Id. at 586 & n.10 (noting that there may be causation

probl ems if an independent prosecutor’s actions broke the causal

link between the defendant officer’s behavior and the plaintiff’s

injury).

27 in violation of the Fourth Amendment and injuries, due to

that seizure, follow as the prosecution goes ahead. 78

The court then concluded that “[i]n determining when a section 1983

claim accrues (as well as the elements which must be pled to state

a claim) we must seek help from the common law tort which is most

analogous to the claim in the case before us. ” 79 In situations

where the alleged seizure was pursuant to legal process the tort of

malicious prosecution is most analogous, and so the court

incorporated the favorable termination element whereby the claim

does not accrue until the prosecution ends in the plaintiff’s

f avor. 80 In addition, the court noted that under analogous

malicious prosecution principles, injuries caused by the unlawful

seizure may include those associated with the prosecution. 81

III

We now t urn to A lbright

, which, as important as it is, held

far less tha n is now being claimed. First, we remind that the

charges in Albright were dismissed after petitioner ’s arrest and

release on bail. There was no further prosecution. Chief Justice82 Albright v. Oliver , 510 U.S. 266, 271 (1994).

83 Id . at 273 (quoting G raham v. Conner

, 490 U.S. 386, 3 9 5

(1989)).

28 Rehnquist, in his opinion for the Court, precisely stated the claim

presented:

Petitioner’s claim before this Court is a very limited

one. He claims that the action of respondents infringed

his substantive due process right to be free of

prosecution without probab le cause. He does not claim

that Illinois denied him the procedural due process

guaranteed by the Fourteenth Amendment. Nor does he

claim a violation of his Fourth Amendment rights,

notwithstanding the fa ct that his surrender to the

State’s show of authority constituted a seizure for

purposes of the Fourth Amendment. 82

The Court was also precise in what it was holding:

Where a particular Amendment “provides an explicit

textual source of constitutional protection” against a

particular sort of government behavior, “that Amendment,

not the more generalized notion of ‘substantive due

process,’ must be the guide for analyzing these

claims.” 83

Albright rejected the contention that the in itiation of

criminal proceedings without probable cause is a violation of

substantive due process, holding that petitioner must look to the

explicit text of the Fourth Amendment as a source of protection for

the “particular sort of government behavior” at issue. To the

point, causing charges to be filed without probable cause will not

without more violate the Constitution. So defined, the assertion

of malicious prosecution states no constitutional claim. It is

equally appar ent that additional government acts that may attend84 United States v. Daniels

, 281 F.3d 168, 183 (5th Cir. 2002).

85 Id . (internal quotations and citations omitted).

86 We iterate our longstanding view that failure to object to

a jury charge ordinarily limits review to plain error. S ee, e.g.

,

29 the initiation of a criminal charge could give rise to claims of

constitutional deprivation.

The initiation of criminal charges without probable cause may

set in force events that run afoul of expl icit constitutional

protection

- the Fourth Amendment if the accused is seized and

arrested, for example, or other constitutionally secured rights if

a case is further pursued. Such claims of lost constitutional

rights are for vi olation of rights locatable in constitutional

text, and some such claims may be made under 42 U.S.C. § 1983.

Regardless, they are not claims for malicious prosecution and

labeling them as such only invites confusion.

IV

1

O ne matter should here be put to rest. Under the unique

circumstances of this case, we apply an abuse of discretion

standard, rather th an plain error. 8 4 We ask “whether the court's

charge, as a whole, is a correct statement of the law and whether

it clearly instructs jurors as to the principles of the law

applicable t o the factual issues confronting them.” 8 5 It is true

that defendants did not object to the jury charge beyond urging

their earlier motions for judgment as a matter of law. 86 It isTompkins v. Cyr , 202 F.3d 770, 783 (5th Cir. 2000); Highland Ins.

Co. v. Nat’l Union Fire Ins. Co. , 27 F.3d 1027, 1032 (5th Cir.

1994); Farrar v. Cain , 756 F.2d 1148, 1150 (5th Cir. 1985). Rule

51 states that “[n]o party may assign as error the giving or the

failure to give an instruction unless that party objects thereto

before the jury retires to consider its verdict, stating distinctly

the matter objected to and the ground s of the objection.” “The

purpose of this rule is to allow the trial court to correct any

error before the jury begins its deliberation.” Farrar , 756 F.2d

at 1150. Nevertheless, given the unusual procedural history of

this case, that the jury was charged contrary to the law of the

case, and the fact that the nature of the defendants’ continued

objections to submitting the case to the jury went to the heart of

this error, an abuse of discretion standard is appropriate.

30 equally true that defendants did object to allowing the jury to

consider wrongful conviction as a claim under the Fourth or

Fourteenth Amendment, making their legal posi tion clear to the

magistrate judge both by their motions for judgment as a matter of

law, as well as by explicit renewal of those motions at the charge

conference in response to the judge’s invitation to lodge any

objections to t he proposed charge. Moreover, defendants appeal

from the district court’s denial of j udgment as a matter of law,

and its rejection of the contention that the Fourth Amendment would

not support claims arising from the trial.

2

The magistrate judge in this case, facing the daunting task of

attempting to locate a regression line in our decisions, dismissed

all claims except claims for violation of the Fourth Amendment. In

doing so he read Albright broadly in concluding that the Fourth87 See Ric hey v. Brookshire Grocery Co. , 952 S.W.2d 515, 519

(Tex. 1997).

31 Amendment afforded an adequate constitutional predicate for all of

the defendants’ conduct through trial – or none of it.

In the effort to rest the entire trial upon the Fourth

Amendment, the trial judge instructed the jury that to prove he was

maliciously prosecuted, Castellano must establish by a

preponderance of the evidence each of the following:

One, the defendants cause d or commenced or aided a

criminal proceeding against him; two, the defendants

acted without probable cause; three, the criminal action

terminated in his favor; four, he was innocent of arson;

five, the defendants acted with malice by prosecuting him

for arson; and six, he was damaged by th e criminal

proceeding.

The trial court further cabined the claims by instructing that:

A person’s failure to fully and fairly disclose all

material information and knowingly providing false

information to the prosecutor are relevant to the malice

and causation elements of a malicious prosecution claim

but have no bearing on probable cause.

This instruction is a direct quotation from a decision of the

Texas Supreme Court stating the elements of a claim of malicious

prosecution under state law. 87 It is a vivid example of the hazards

of blending state tort law with federal law in an undifferentiated

way. The Fourth Amendment of the United States Constitution cannot

be circumscribed by state tort law, yet this is the practical

effect of this instruction, in that if Fragozo were acting under

color of state law in providing the false information, there would

be no probable cause. It neatly excised Castellano’s claim that88 Ex parte Castellano , 863 S.W.2d 476, 485 (Tex. Crim. App.

1993) (“Fragozo acted under color of law and was, therefore, a

member of the prosecution team in the investigation of the instant

case and as such his knowledge of the perjured testimony was

imputable to the prosecution.”). Castellano went to trial on his

Third Amended Complaint. There he continued his allegations that

Ed Sargologos, t he district attorney who prosecuted the case and

who was earlier d ismissed from the case on immunity grounds,

knowingly used the manufactured and perjured testimony and withheld

that fact from the defendant.

32 the falsity of the tapes and testimony furnished by Sanchez and

Fragozo was attributed to the prosecutors because Fr agozo acted

under color of state law and hence denied Castellano due process,

just as the Texas Court of Criminal Appeals had concluded in

vacating his conviction. 88 Locating the state elements of malicious

prosecution under the Fourth Amendm ent did not remove the trial

events from the case; at the same time, it fell short of putting

the Fourteenth Amendment back in because it limited the jury’s use

of evidence of fabricated evidence and perjured testimony to its

resolution of the issues of malice and causation. The instruction

also assumed that initiating a criminal case without probable cause

denies a constitutional right, contrary to Albright

, and that

defendants’ testimony at trial could supply the causal nexus

between the Fourth Amendment and the claim of wrongful conviction.

As we will explain by the markers of the new path we define

today, this reading of the Fou rth and Fourteenth Amendments was

deeply flawed. It swept too wide in two directions: simultaneously

holding that Albright closed the door to any claim of a deprivation33

of due process and that the protections of the Fourth Amendment

extended to events at trial.

The manufacturing of evidence and the state’s use of that

evidence along with perjured testimony to obtain Castellano’s

wrongful conviction indisputably denied him rights secured by the

Due Process Clause. They were not properly dismissed on the basis

that no claim was stated, or upon the confusing assertion that the

F ourteenth Amendment will not support a claim for “malicious

prosecution,” another example of the uncertainty accompanying the

use of the term malicious prosecu tion without lifting up the

constitutional claims. Defendants pressed the absolute immunity of

witnesses in their motions for summary judgment, but the magistrate

j udge did not reach the contention, electing to accept the

erroneous contention that under Albright there could be no denial

of due process if there was an adequate state tort remedy. At the

same time, the magistrate judge determinedly applied holdings of

this court that malicious prosecution had the same elements whether

the claim was asserted under state tort law or § 1983. To assist

in our explanation, we will unpack the ruling of the magistrate

judge, turning first to the dismissal of all claims under the

Fourteenth Amendment.

3

We cannot agree that the claims under the Fourteenth Amendment

were properly dismissed because there was no deprivation of due89 S ee, e.g.

, Nieves v. McSweeney , 241 F.3d 46, 53 (1st Cir.

2001).

90 M emphis Community Sch. Dist. v. Stachura, 477 U.S. 299, 305

(1986).

91 435 U.S. 247, 257-58 (1978).

34 process that can su pport a claim for damages under 42 U.S.C. §

1983. This view rests on two arguments. First, that the specific

constitutional rights guiding a criminal trial spend their force in

assuring a fair trial, and, in its most primitive form, that they

cannot support an action under 42 U.S.C . § 1983. Second, that a

state remedy in t ort to compensate for the injury is an adequate

post-deprivation response and hence there was no denial by the

state of the process secured by the Fourteenth Amendment. 89

4

Turning first to the very role of § 1983 in enforcing

constitutional righ ts, the Supreme Court has made clear that

Congress created a species of tort liability with § 1983. 90 As the

court observed in Cary v. Piphus :

[O]ver the centuries the common law of torts has

developed a set of rules to implement the principle that

a person should be compensated fairly for injuries caused

by the violation of his legal rights. These rules,

defining the elements of damages and the prerequisite for

their recovery, provide the appropriate starting point

for the inquiry under § 1983 as well. 91

The substantial b ody of law developing the immunity to

liability of various players in c riminal trials rests on the

implicit acceptance of the draw of § 1983 upon principles of tort92 See, e.g.

, Imbler v. Pachtman , 424 U.S. 409 (1976).

93 Before trial defendants even urged that Fourth Amendment

claims should be dismissed because there was an adequate state

remedy.

35 law to compensate for injury suffered in the loss of constitutional

rights. 92 We find no reasoned basis for concluding that § 1983 is

never available to remedy injuries wrought by a denial of due

process. The countervailing interests of law enforcement have been

weighed in the judicial development of the immunity doctrine, not

in somehow sidestepping the congressional command of § 1983.

5

Nor is there a serious suggestion that the Parratt doctrine

is applicable to Castellano’s claim that the manufacturing of

evidence and use of perjured testimony at trial leading to his

wrongful conviction denied him due process. 9 3 A lbright

, in

forbidding the depl oyment of substantive due process to police

s tate actors’ conduct that was governed directly by particular

constitutional provisions, makes no such suggestion.

In his concurring opinion in Albright

, Justice Kennedy, joined

by Justice Thomas, made clear that in his view Albright’s due

process claim concerned only the “malicious initiati on of a

baseless criminal prosecution,” rather than an unlawful arrest or

events at trial leading to a wrongful conviction, since there was94 Albright v. Oliver

, 510 U.S. 266, 281 (1994) (Kennedy, J.,

concurring).

95 Id. at 283-84.

96 Id. at 284.

36 no trial. 94 He noted that the Due Process Clause protects interests

“other than the interest in freedom from physical restraint,” and

assumed arguendo that “some of the interests granted historical

protection by the common law of torts (such as the interests in

freedom from defamation and malicious prosecution) are protected by

the Due Process Clause.” 95 However, he also noted that even if

m alicious initiation of charges was protected by the Due Process

Clause, such a claim would be barred: “[O]ur precedents make clear

that a state actor's random and unauthorized deprivation of that

interest cannot be challenged under 42 U.S.C. § 1983 so long as the

State provides an adequate postdeprivation remedy.” 96

That no other justices joined this writing a side, Justice

Kennedy’s opinion carefully distinguished the claim in Albright of

malicious initiation of charges from those ca ses where the Court

found that a criminal r ule or procedure violated the fundamental

principles of due process. He stated that Albright’s claim thus

differs in kind from In re Winship

, and the other

cri m inal cases where we have recognized due process

requirements n ot specified in the Bill of Rights. The

constitutional requirements we enforced in those cases

ensured fundamental fairness in the determination of

guilt at trial. See, e.g., Mooney v. Holohan , 294 U.S.

103, 112, 55 S.Ct. 340, 341, 79 L.Ed. 791 (1935) (due

process prohibits “deliberate deception of court and97 Id. at 283 (some citations omitted).

98 Id. at 284-85 (citations omitted).

99 365 U.S. 167 (1961).

100 Albright , 510 U.S. at 283.

37 jury” by prosecution's knowing use of perjured

testimony). 97

This qualification makes sense. Unquestionably, the Parratt

principle is important in the effort to find principled limits to

§ 1983's reach into the tort fountain. At the same time, the court

has recognized that its medicine can be too strong. Justice

Kennedy explained its contraindications, observing that

courts, including our own, have been cautious in invoking

the rule of Parratt. That hesitancy is in part a

reco gnition of the important role federal courts have

assumed in elaborating vital constitutional guarantees

against arbitrary or oppressive state action. We want to

leave an avenue open for recourse where we think the

federal power ought to be vindicated, 98

a reservation also expressed in Monroe v. Pape ’s reading of § 1983

as supplementary to state remedies for constitutional injury. 99

This caution also finds expression in Justice Kennedy’s statement

that a claim of malicious initiation of crimi nal proceedings

“differs in kind” from claims that implicate “fundamental fairness

in the determination of guilt at trial” 100

– claims in which the

federal power ought to be vindicated. The concurring opinion of

Justice Kennedy, joined by Justice Thomas, expresses the view that

Parratt can brake the spinning of n ew constitutional strictures101 See Newsome v. McCabe , 256 F.3d 747, 751 (7th Cir. 2001).

102 Albright , 510 U.S. at 300 (Stevens, J., dissenting).

38 upon the trial of criminal cases from a blend of state tort law and

substantive due process, a principle running through Albright

.

At their most fun damental level, the values sought to be

vindicated here are core commands of our United States Constitution

– undiluted and unblurred by any blend of state tort law that would

either enhance or diminish its forc e. Unlike defamation and

m alicious prosecution, this constitutionally secured right of an

accused in a criminal case was not seeded in the common law of tort

where duties are the product of judicial choice with no roots in

the value choices of our organic law.

We need not agree with the Seventh Circuit’s statement that

Justice Kennedy’s concurring opinion is the holding of Albright 101

to agree that there are fundamental rights, albeit few in number,

secured by due process that differ in kind from those at issue in

Albright and which are beyond the reach of Parratt

. Justice

Stevens made the point as well, observing, “[e]ven if prescribed

procedures are followed meticulously, a criminal prosecution based

on perjured testimony

. .. simply does not comport with the

requirements of the Due Proces s Clause.” 1 02 This is no more than

the line drawn by the P arratt line of cases and the handful of

cases decrying conduct so destructive of a fair trial that it103 Zinermon v. Burch

, 494 U.S. 113, 125-26 (1990); Daniels v.

Williams

, 474 U.S. 327, 331 (1986); Parratt v. Taylor

, 451 U.S. 527

(1981).

104 Daniels , 474 U.S. at 331.

105 See Mooney v. Holohan , 294 U.S. 103, 112, (1935).

106 See Buckley v. Fitzsimmons

, 509 U.S. 259, 269-70 (1993);

Briscoe v. LaHue , 460 U.S. 325, 334-36 (1983).

107 See Buckley

, 509 U.S. at 275-76. Defendants cannot shield

any pretrial investigative work with the aegis of absolute immunity

39 cannot be justified by procedures. 103 As Chief Justice Rehnquist

put it in Daniels

, the Due Process Clause protects a gainst

arbitrary acts of government by promoting fairness in procedure and

“by barring certain government actions regardless of the fairness

of the procedures used to implement them.” 104

6

As we have indic ated, we find the reasoning employed in

dismissing Castellano’s due process claims flawed. Castellano’s

contention that the m anufacturing of evidence and knowing use of

perjured testimony attributable to the state is a violation of due

process is correct. 105 Nevertheless, on remand Castellano will face

the well-established rule that prosecutors and witnesses, including

police officers, have absolute immunity for their testimo ny at

trial. 106 Courts have also held that non-testimonial pretrial

actions, such as the fabrication of evidence, are not within the

scope of absolute immunity because they are not part of the

trial. 107 Thus, while Castellano’s due process claims are notmer ely because they later offered the fabricated evidence or

testified at trial. I d. at 276; Spurlock v. Satterfield

, 167 F.3d

995, 1003-04 (6th Cir. 1999) (finding “untenable” the result that

officials who fabricate evidence could later shield themselves from

liability simply by presenting false t estimony regarding the

evidence).

108 See Zahrey v. Coffey , 221 F.3d 342 (2d Cir. 2000).

109 Albright , 510 U.S. at 277-81.

40 properly rejected by the principles of Alb right and Parratt

,

whether they survive the absolute immunity given witnesses in a

criminal trial or whether the fabrication of the tapes could have

been a legally sufficient cause of the wrongful conviction, we

leave to the district court on remand. 108

7

Castellano attempts to salvage his verdict by contending that

the violation of the Fourth Amendment supports the verdict because

it was the direct cause of all that followed.

In her concurring opinion in A lbright

, Justice Ginsburg

articulated a theory that gave a broad reach to seizure under the

Fourth Amendment

– suggesting that various constraints such as

tra vel restrictions and required attendance at pretrial hearings

might constitute a seizure and thereby extend the Amendment’s reach

toward trial. 109 This view did not attract support in A lbright and

we need not here further define its limits. Rather, we adhere to

the view that the umbrella of the Fourth Amendment, broad and

powerful as it is, casts its protection solely over the pretrial110 Id. at 273.

41

events of a prosecution. This much is implicit in A lbright ’s

insiste nce that the source of constitutional protection is the

particular amendment offe ring an explicit and extended source of

protection against a particular sort of government behavior. 110

Plainly , the perjury and manufactured evidence that tainted

Castellano’s arrest also denied him due process when used again at

t rial to convict him. It is equally plain that his arrest, even

his indictment, did not lead inevitably to his trial and wrongful

conviction and the damages flowing therefro m. Rather, the

prosecution of this case relied on the continued cooperation of

Sanchez and Fragozo at each of its subsequent phases. As the Texas

Court of Criminal Appeals ultimately held, without their testimony,

there was insufficient evidence to convict. And while Castellano

may recover for all injury suffered by its violation, the Fourth

Amendment will not support his damages arising from events at trial

and his wrongful conviction.

We need not say that there could never be such a case to

conclude it is not this case. Without the perjury at trial there

would have been no conviction, ye t the perjury at trial did not

violate the Fourth Amendment. That is, unless these events at

trial are somehow found to be a violation of Castellano’s Fourth

Amendment rights, there is no constitutional footing fo r a claim

seeking recovery for damages aris ing from the trial and wrongful111 See supra note 38 and accompanying text.

112 See Heck v. Humphrey , 512 U.S. 477, 484-87 (1994).

42 conviction, as opposed to his arrest and pretrial detention, given

the dismissal of all but Fourth Amendment claims.

It is true that the charge refers to a denial of due process

despite the pretrial dismissal of all but the Fourth Amendment, but

as we have explained, this reference to due process is confined by

the jury instruction.

8

We have no occasion here to consider afresh the federal common

law footing of our insistence that a state criminal proceeding

terminate in favor of a f ederal plaintiff complaining of

constitutional deprivations suffered in a state court prosecution,

a rule reflec ting powerful governmental interests in finality of

judgments. 111 Nor do we face the kindred exercise in deciding when

such a claim accrues under applicable limitations periods. Justice

Scalia’s opinion in Heck v . Humphrey answers any question of

limitations in the overwhelming percentage of cases, including this

case. It concludes that no such claim accrues until the conviction

has been set aside where, as here, the suit calls the validity of

the conviction into play. 112

The heart of Castel lano’s claim is that the prosecution

obtained his arrest and conviction by use of manufactured evidence

and perjured testimony, actions attributable to it because Fragozo113 Heck was decided three months before this suit was filed.

43 acted under color of state law. Castellano’s proof directly

implicated the validity of his conviction and therefore he could

not proceed and lim itations could not accrue consistent with the

principles of H

eck until the case was dismissed for insufficient

evidence by the state trial court on December 29, 1993, on remand

from the Texas Court of Criminal Appeals. This suit followed nine

months later. 113 Although the parties sparred in the trial court

over the general applicable period of limitations and the specific

effect of an amended pleading, the parties make no contention here

that the trial court’s holding that the federal claims were not

barred by limitations was in error in either respect.

V

We are persuaded that the judgment must be reversed and the

case should be remanded for a new trial of Castellano’s claims

under the Fourth and Fourteenth Amendments. Defendants are correct

that this verdict cannot stand resting solely on the Fourth

Amendment for the reason that the award of damages does not

disting uish between trial and pretrial events. On remand the

district court will grant leave to amend to all parties to conform

their claims and defenses to this ruling.

It is suggested that Castellano should not be able to pursue

any claims under the Fourteenth Amendment in that the m agistrate114 S ee United States v. Hill

, 42 F.3d 914, 917 n.8 (5th Cir.

1995); Hoyt R. Matise Co. v. Zurn , 754 F.2d 560, 565 n.5 (5th Cir.

1985); City of Safety Harbor v. Birchfield

, 529 F.2d 1251, 1254 n.4

(5th Cir. 1976).

44judge dismissed them before trial and Castellano filed no crossappeal. It is settled that an appellee may urge any ground

available in support of a judgment even if that ground was earlier

and erroneou sly rejected by the trial court. 1 14 Castellano has

attempted to salvage his verdict, as put at oral argument, on the

basis that, contrary to the ruling of the magistrate judge, he did

state a due process claim and it in practical effect was before the

jury. While we have rejected this contention, it is quite plain

that to make it requires no cross-appeal. Castellano does not

attempt to expand his rights under the judgment by urging that it

can be sustained under the Fourteenth Amendment despite the ruling

of the trial court.

There remains the question of whether Castellano should also

be allowed to plead a state claimof malicious prosecution. The

argument is that Castellano should be allowed to separate his

federal and state claims resting jurisdiction over the state claims

upon 28 U.S.C. § 1367. We are keenly aware that our insistence

upon disentangling federal and state law may appear to be no more

than a message to the bar about pleading

– clearly state separately

your state and federal claims. Yet, although jury trials of cases

with both constitutional and supplemental state claims may be45

little un changed by our work today, the principle insisted upon

here remains important. Our insistence that the anchor of

constitutional claims be visible is demanded by our limited

jurisdiction, as well as its practical utility in avoiding

confusion and dilution of constitutional values. Here Castellano

amended his complaint, purposely abandoning his claim under state

law. He did so because our case law said the elements of malicious

prosecution under state law and under a § 1983 claim were the same.

We have pulled that legal rug from all the parties. As we have

observed, the magistrate judge’s undifferentiated draw upon state

law misread Albright . But so did this court.

In sum, we reverse the judgment and remand the case for a new

trial of Castellano’s federal and state claims under the Fourth and

Fourteenth Amendments and any state claims he may have. Castellano

has not articulated any theory supporting any other claims of lost

rights secured under the First, Fifth, and Eighth Amendments.

REVERSED AND REMANDED FOR NEW TRIAL.

E. GRADY JOLLY, Circuit Judge, concurring and dissenting:

I join bo th Judge Higginbotham and Judge Barksdale in

disclaiming t he constitutional tort of malicious prosecution. I

join Judge Barksdale and Judge Jones in rejecting a remand on the

state claim. I join Judge Barksdale in rejecting the due process46

claim. I would remand for retrial on whatever remains of the

Fourth Amendment claims.115 A judgment or settlem ent of a Texas Tort Claims Act case

involving a government employer bars the continuation of an action

or judgment against an employee of that department “whose act or

omission gave rise to the claim.” T EXAS C IVIL P RACTICE & R EMEDIES C ODE

§ 101.106; Thomas v. Oldham

, 895 S.W.2d 352, 355-57 (Tex. 1995);

see also Owens v. Medrano , 915 S.W.2d 214 (Tex. App. - Corpus

Christi 1996, writ den’d.) (judgment against City of San Benito on

claims including one f or malicious prosecution bars suit against EDITH H. JONES, Circuit Judge, with whom SMITH, CLEMENT, and PRADO,

Circuit Judges, join, concurring and dissenting:

Like Judge Barksdale, I applaud the court’s decision to

jettison its mischievous and unfounded theory constitutionalizing

the tort of malicious prosecution. This result is overdue. See

Brummett v. Camble

, 946 F.2d 1178 (5th Cir. 1991); Kerr v. Lyford

,

171 F.3d 330, 342 (5th Cir. 1999) (Jones, J., concurring); Gordy v.

Burns

, 294 F.3d 722 (5th Cir. 2002). While I largely agree with

Judge Higginbotham’s discussion of this point, I do not subscribe

to the majority’s broad remand order.

In particular, the majority purports to allow Castellano

t o retry state law claims against the two remaining appellants.

This is wrong for two reasons. As Judge Barksdale notes,

Castellano did not appeal from the magistrate judge order

consolidating his state law malicious pro secution claim into a

§ 1983 claim. Moreover, Castellano has clearly disavowed a state

law claim as recently as in his response to the petition for

rehearing en banc. The disavowal turns on quirks of state law

rather than on this court’s con stitutional about-face. 1 15 Theits police officers on same claim); Brand v. Savage

, 920 S.W.2d

672, 674-75 (Tex. App. - Houston [1st Dist.] 1995).

116 I also dissent from allowing Castellano on remand to try a

Fourth Amendment claim properly limited, in events and damages, to

pretrial events. He never sought such limited relief in the trial

court. Awarding it here is, as Judge Barksdale says, impermissibly

lawyering the case for Castellano.

117 Whether this claim will survive a defense based on the

appellants’ absolute witness i mmunity has not been briefed and

remains open on remand.

48 majority opinion co ntinues a troublesome trend in this court’s

recent en banc decisions of deviating from normal standards of

appellate practice. S ee

, e.g.

, United States v. Southland Mgmt.

Corp.

, 326 F.3d 669 (5th Cir. 2003) (en banc) (Jones, J.,

concurring); Coggin v. Longview Indep. Sch. Dist.

, 337 F.3d 459

(5th Cir. 2003) (en banc) (Jones, J., dissenting). I dissent from

this apparently unnecessary remand. 116

On the other hand, I cannot agree with Judge Barksdale’s

argument that Castellano waived any possible constitutional claim

by his trial court pleadings. At every step of the litigation, he

conscientiously attempted to conform to this court’s decisions and

to accomplish the ultimately impossible t ask of harmonizing our

case law with that of the Supreme Court. Because this court

changed the game technically on Castellano, he should be allowed to

retry his claim as one for violation of procedural due process

based on the appellants’ fabrication of evidence agai nst him. 1 17

Judge Barksdale also powerfully argues that because Texas law

affor ds Castellano an adequate state remedy in a malicious49

prosecution claim, the Parratt doctrine withholds a constitutional

remedy. While this position may prove correct, we have no postParratt guidance on it from the Supreme Court, and several courts

have allowed claims like Castellano’s to proceed without mention of

Parratt

. S ee

, e.g.

, Newsome v. McCabe

, 256 F.3d 747 (7th Cir.

2001); Jean v. Collins

, 221 F.3d 65 6 (4th Cir. 2000) (en banc);

Brady v. Dill

, 187 F.3d 104, 114 (1 st Cir. 1999); M cMillian v.

Johnson , 88 F.3d 1554, 1566-70, on reh., 101 F.3d 1363 (11th Cir.

1 996); Taylor v. Waters

, 81 F.3d 429, 436 n.5 (4th Cir. 1996) ;

Jones v. City of Chicago

, 856 F.2d 985, 984 (7th Cir. 1988); Geter

v. Fortenberry

, 849 F.2d 1550, 1559 (5th Cir. 1988). For now, I

would side with the other appellate courts and concur in this

portion of the majority’s remand.50

RHESA HAWKINS BARKSDALE, Circuit Judge, with whom EMILIO M. GARZA,

Circuit Judge, joins, concurring in part and dissenting in part:

As is true of many well meaning, attempted solutions to longstanding, significant p roblems, the majority opinion offers good

news and bad. The good is our finally proscribing a claim under 42

U.S.C. § 1983 for malic ious prosecution. The bad comes in two

doses: substituted for the freshly minted proscriptio n is an

erroneous new § 1983 claim for a due process violation; and this

action is being remanded for a new, open- ended trial not only on

that new claim but on others as well. This double-barrelled blast

of bad news is compounded by Castellano’s never having requested on

appeal any of the relief provided him so generously, albeit so

erroneously, by the majority s ua sponte

. In sum, while I concur

fully in the good news, I must respectfully dissent from the bad.

The starting point for the new § 1983 claim’s being erroneous

is the maxim “Ubi jus, ibi remedium”

— “Where there is a right,

th ere is a remedy”. S ee, e.g., Texas & P. R. Co. v. Rigsby

, 241

U.S. 33, 40 (1916). Our federal system counterpoint is: “Where

there is a right, there may not be a federa l law remedy”.

Restated, it may be that the reme dy must be through state law.

This reflects, among other things, the limited powers granted by51

our federal constitution, the concomitant limited role of federal

courts, and the proper balance between state and federal law.

Accordingly, it is indeed passing stran ge that, on the one

hand, the majority properly p rohibits pursuing a state law

malicious prosecution claim under § 1983, while, on the other, it

improperly creates, sua sponte no less, a new federal law remedy to

be pursued under § 1983: a witness’ pre-trial evidence fabrication

and perjury at trial equals denial of Fourteenth Amendment due

process. (The majority does not state, however, whether the denial

is “substantive” or “procedural”; as discussed infra

, that

distinction is a critical factor.) It is even more strange that

the majority creates this new remedy in the face of t he crystal

clear limiting signal in Albright v. Oliver

, 510 U.S. 266 (1994)

(holding no claim under § 1983 for malicious prosecution based on

asserted Fourteenth Amendment substantive due process right to no

prosecution without probable cause), especially the concurrence by

Justice Kennedy, id. at 281. No authority need be cited for the

rule that federal courts should avoid constitutiona l issues if

possible, yet the majority goes out of its way, s ua sponte

, to

create this new remedy.

On top of all this, the majority remands, s ua sponte

, for a

new trial on this new rem edy and several other issues. In other

words, on appeal, Castellano has not sought any of this relief.

Under our long established rules of appellate procedure, this52

failure alone precludes the majority’s sua sponte remedy-creation

and remand.

Consistent with my dissent from the vacated panel opinion, I

concur in the holding that malicious prosecution may not be pursued

through § 1983. S ee Castellano v. Fragozo

, 311 F.3d 689, 712 (5th

Cir. 2002) (Barksdale, J., dissent ing), v acated by 321 F.3d 1203

(5th Cir. 2003); Kerr v. Lyford

, 171 F.3d 330, 342 (5th Cir. 1999)

(Jones, J., concurring). This was the sole reason for en banc

review. Most regrettably, new, unbriefed issues have been used to

diminish, if not swallow, this new holding. Again, the majority

has confected, sua sponte

, a new § 1983 due proces s claim to

replace the now torpedoed § 1983 malicious prosecution claim.

Again, to make matters even worse, it remands, sua sponte , for an

open-ended new trial on this and other issues.

Acc ordingly, I must respectfully dissent in part. The

majority erred in establishing this new § 1983 claim. And, again,

in order to establish it and to remand for the new trial on it and

other claims, the majority turned its back on long-standing rules

of a ppellate procedure. There is no justification for creating

this new § 1983 claim and remanding to allow Castellano yet another

round of litigation, despite his repeated failures at trial and on

appeal to raise the very issues the majority now allows him

belatedly to try on remand. We are not a court of original error;53

yet that is the role played by the majority. It has turned the

trial and appeal process on its head.

I.

At this stage, it is critical to appreciate that only two

defendants remain in this action: Fragozo, a police officer who

was a part-time security guard for Castellano; and Sanchez, who was

employed by Castellano. Fragozo and Sanchez are linked in various

ways, including alleged fabrication of evidence prior to, and

alleged perjury at, Castellano’s criminal trial. Fragozo is the

requisite “state actor” for § 1983 purposes.

The following defendants no longer remain in this action; the

law of the case bars Castellano from bringing any of them back in

on remand. Dismissed were: the County of Bexar, Texas; its

district at torney’s office; its prosecutor; the City of San

Antonio, Texas, for which Fragozo was a police officer; and Alfred

Castro, an arson investigator for that city’s fire departme nt.

Immediately after removal to feder al court, the county, the

district attorney’s office, and the prosecutor were dismissed on

the basis of prosecutorial immunity. At trial, each of the then

remaining four defendants moved for judgment as a matter of law,

with that relief being granted the city; and, although the jury

returned a verdict against Fragozo and Sanchez, it did not find

Castro liable. In sum, of the original seven defendants, only two

remain.54

Castellano did not cross-appeal the dismissal of these five

defendants. Again, the law of the case bars him from bringing any

of them back in on remand. Again, only Fragozo and Sanchez remain.

In conjunction with those two remaining defendants, the majority

opinion contains several errors and omissio ns related to the

procedural history of this action which demonstrate, in part, why

the new § 1983 claim and remand are improper.

First, Castellano’s third amended complaint presented § 1983

claims under the First, Fourth, Fifth, Sixth, Eighth, and

Fourteenth Amendments. According to the majority, all but the

Fourth Amendment claim were dismissed. M aj. Opn. at 8, 31, and 42.

Instead, all but the Fourth and First Amendment claims were

dismissed. Castellano abandoned the latter.

According to the majority, Castellano, by amendment to his

complaint, abandoned his state law malicious prose cution claim.

Maj. Opn. at 2 and 45. Instead, over Castellano’s objection, the

magistrate judge merged that state law clai m with Castellano’s §

1983 Fourth Amendment claim.

This case was tried on Castellano’s now proscribed § 1983

malicious prosecution claim; a quite subst a ntial jury verdict

resulted. But, as noted, that verdict was against only two

individuals. When they appealed, Castellano did not cross-appeal

any of his numerous dismisse d claims ( i .e.

, § 1983 claims

concerning the Fifth, Sixth, Eighth, and Fourteenth Amendments); or55

the consolidation of his Fourth Amendment claim with his state law

malicious prosecution claim; or the dismissal of the other

defendants, such as the city. Accordingly, the only issue on

appeal – including before our en banc court – was the jury’s

malicious prosecution verdict against Sanchez (Castellano’s former

employee) and Fragozo (the policeman who had worked for Castellano

as a part time security guard and was linked to Sanchez).

Castellano was successful before the panel. At rehearing en

banc, he provid ed no new briefing, electing to rely on his panel

brief. As discussed i nfra

, the majority states that, although

Cast ellano did not cross-appeal, he nevertheless urged, at some

point on appeal, af firmation of the jury’s malicious prosecution

verdict on the separate basis of due process. This is simply not

correct. And, although the majority does not suggest Castellano

urged affirmation on th e basis of other constitutional and state

law claims, it nevertheless remands for a new trial with respect to

those claims as well.

II.

The majority remands f or a new trial on the following: its

new Fourteenth Amen dment due process claim (again, as discussed

infra

, it does not distinguish between “substantive” and

“procedural”); a Fourth Amendment claim; a state malicious

prosecution claim; and “any other” claim under state law when, on56

remand, Castellano amends his complaint for the fourth time. I

would not allow a new trial on any of these.

A.

The new § 1983 due process claim confected by the majority

fails on two bases. First, the issue was never presented on

appeal. Second, it is barred by the Parratt doctrine.

1.

Our prudential appellate rules preclude us from entertaining

a Fourteenth Amendment due process claim of any stripe. This is

especially true because it is a constitut ional issue; one we

should , and can properly, avoid. In district court, Castellano

pleaded a procedural due process claim, which was dismissed along

with his Fifth, Sixth, and Eighth A mendment claims. Castellano

prevailed at a jury trial on another basis (malicious prosecution)

against only two of seven defendants.

When those two defendants appealed, Castellano elected not to

raise by cross-appeal ( or otherwise ) the dismissal of any of these

c laims, including his Fourteenth Amendment due process claim

(again, he had abandoned his First Amendment claim). In general,

even without filing a cross-appeal, an appellee can still present

an issue on appeal that doe s not seek to modify the judgment; in

other words, he must cross-appeal only when he seeks to alter it.

E .g., Kelly v. Foti

, 77 F.3d 819, 822 (5th Cir. 1996). But,

obviously, even if a cross-appeal is not required to present an57

issue, the appellee must still present it on appeal if he wants it

considered. E.g., United States v. Hill

, 42 F.3d 914, 917 n.8 (5th

Cir.), cert. denied

, 516 U.S. 843 (1995). Castellano did neither.

The majority holds, based u pon an extremely thin reed, that

Castellano presented the new Fourteenth Amendment due process

claim, thereby allowing our court to consider it: “Castellano has

attempted to salvage his verdict, as put at oral argument , on the

basis that contrary to the ruling of the magistrate judge he did

state a due process claim and it in practical effect was before the

jury”. M aj. Op n. at 44 (emphasis added). Generally, of course,

our court does not consi der issues raised for the first time at

oral argument

– most especially at en banc oral argument. E .g.,

Vargas v. Lee

, 317 F.3d 498, 503 n.6 (5th Cir. 2003). Although

Castellano did plead a procedural due proces s claim in district

court, he did not present a due process claim at any point on

appeal

— not in his panel brief, not in h is en banc brief (which

merely a dopted the panel brief), and not even at en banc oral

argument.

This claim may not be considered for three reasons: (1) at en

banc oral argument, Castellano never urged this court to affirm on

due process grounds

— procedural or otherwise; (2) in his panel and

en banc briefs, he never urged affirmance on such grounds; and (3)

at issue is a jury verdict for malicious prosecution, to which the58

cross-appeal exception relied on by the majority, discussed infra

,

does not apply.

a.

Even assuming we sh ould consider an issue presented for the

first time at en banc oral argument, I am puzzled by the majority’s

insistence that, at that argument, Castellano urged affirmation on

the basis of due process. Castellano never did so; in fact, on

several instances, he refused to make such a request, even when

repeatedly pointed in that direction by our court.

The re were several procedural due process questions asked

Castellano’s counsel by several judges. Most notably, immediately

after a colloquy over whether procedural, instead of substantive,

due process had been left open by Albright (Castellano presumed, as

he has since his first due process claim in dis trict court, that

only procedural due process w as available), another judge: (1)

provided a lengthy description of the procedural due process claim

in the context of perjured testimony and an unfair trial; (2)

identified the Brady v. Maryland

, 373 U.S. 83 (1963), line of

cases; and (3) asked Castellano’s counsel what sort of argument he

would make under this legal theory in support of the judgment. To

his credit, because he had never presented the issue, Castellano’s

counsel responded: “Your honor, I’m not sure I can answer that

question today, but I would certainly welcome the opportunity to

brief the issue fully if the court would so request”. Castellano59

did not then urge, just as he had not previously urged, our court

to affirm on the basis of a due process violation. This was

confirmed by the fact that he was not prepared to discuss the point

and did not attempt to wing it at en banc oral argument.

b.

Nowhere in his panel or en banc briefs does Castellano request

t his court to affirm on the basis of a § 1983 due process claim.

One issue raised by defendants’ appeal was the claimed reversible

error caused by the quite erroneous inclusion of the term “due

process” in the malicious prosecution j ury instruction. But

Cast ellano never contended on appeal that the inclusion of this

term was a correct sta tement of the law or that our court should

affirm on due process grounds.

In fact, Castellano took the opposite position. In claiming

in his panel brief that there was no error in the instructions –

certainly not reversible error

– Cas tellano was saying that the

erroneous inclusion of the term “due proces s” in the instruction

did not affect the trial’s outcome. He was n ot asserting that our

court should affirm the judgment because procedural due process so

requires, or even that the jury reached its verdict on that basis.

To the contrary, he was maintaining that we should affirm in spite

of the erroneous inclusion of the words “due process” in the

instruction. Neither of Castellano’s briefs (panel or en banc)60

includes a contention that this court should affirm because his due

process rights were violated.

c.

Even if Castellano had urged affirmation based on due process

grounds, he would have had to cross-appeal in order to do so; the

exception to the cross-appeal rule simply does not apply in this

instance. The majority states: “It is settled that an appellee

may urge any ground available in support of a judgment even if that

ground was earlier and erroneously rejected by the t rial court ”.

Maj. Opn. at 44 (emphasis added; citing Hill , 42 F.3d at 917 n.8;

Hoyt R. Matise Co. v. Zurn

, 754 F.2d 560, 565 n.5 (5th Cir. 1985);

City of Safety Harbor v. Birchfield , 529 F.2d 1251, 1254 n.4 (5th

Cir. 1976)). For some instances (not so here), this is a correct

statement of the rule. Here, however, the majority mistakenly

stretches this rule far beyond its intended scope. Again, our

court is not affirming a judgment; instead, we are vacating a

judgment premised on a jury’s verdict based on a ma licious

prosecution, not a due process

, claim. Again, the exception to the

cross-appeal rule only applies where the appellee urges affirmation

on the basis of a claim rejected by the district court; Castellano

did not do so. He was quite satisfied with, and clung tenaciously

to, his judgment based on malicious prosecution.

An examination of the cases relied upon by the majority

demonstrates the exception’s proper application. In H ill

, on61

defendant’s appeal from the sentence imposed following his guilty

plea, we allowed the Government to urge affirmation on the basis of

a statute that had been rejected by the “district court’s ruling”.

The judgment was affirmed. 42 F.3d at 917 n.8. In Z urn

, the

appellee maintained that the record provided an alternative ground

to support the district court’s bench trial decision. Our court

held an appellee may take the position on appeal, without filing a

cross-appeal, that the record supports “the court’s judgment”. 754

F.2d at 565 n.5. Likewise, our court held in Birchfield that the

district court’s statement, upon dismissing the complaint on two

grounds, to the effect that defendant’s o ther contentions were

i nappropriate for determination on a motion to dismiss, d id not

require a cross-appeal in order to assert those other contentions

on appeal. 529 F.2d at 1254 n.4. None of these cases involves a

jury verdict.

To contend that a trial judge’s ruling on an issue was

erroneous and that w e should therefore affirm, without a crossappeal, on that b asis may, in some instances (not so here) be

correct. That is not the situation at hand. Castellano has failed

to follow any of our appellate r ules with respect to the due

process claim he presented only in district court; we are not

permitted to consider it.62 2.

Assuming arguendo that, on appeal, Castellano did pr operly

present a due process claim, it is barred by the Parratt doctrine.

Parratt v. Taylor

, 451 U.S. 527 (1981), overruled in part by

Daniels v. Williams , 474 U.S. 327 (1986), held: where state law

provides an adequate post-deprivation remedy, the plaintiff is

barred from claiming, through § 1983, a procedural due process

violation. This prohibition, however, does not extend to claimed

viola tions of recognized substantive rights incorporated in the

Fourteenth Amendment. E .g., Augustine v. Doe

, 740 F.2d 322 (5th

Cir. 1984) (holding Parratt inapplicable to claimed violation of

recognized Fourth Amendment substantive right, but remanding

another claim to determine whether st ate actors’ conduct was

“official policy”, or instead “random and unauthorized” and

therefore a procedural due process violation

— a claim barred by

Parratt ). For this reason, understanding the distinction between

procedural and substantive due process, and determining which claim

Castellano pleaded in district court, is most essential.

Unfortunately, the majority brushes this aside in its relentless

effort to provide Castellano a remedy – any remedy – on remand.

Along this li ne, it is again imperative to recognize the

defendants who are, and are no longer, in this action. The county,

the district attorney’s office, the prosecutor, the city, and its

arson investigator are out; only Fragozo and Sanchez remain. In63

short, Fragozo is the only “state actor” and an extremely tenuous

one at that.

As discussed below, in di strict court, Castellano pleaded a

procedural due process violation. Indeed, the Supreme Court has

only ch aracterized the type of conduct Castellano alleges –

fabricated evidence and perjured te stimony – as violative of

pro cedural, n ot substantive

, due process. Carving out a new,

stand-alone substantive right under the Fourteenth Amendment, one

that was not pleaded by Castellano in district court and has never

been articulated by the Supreme Court, is not warranted, to say the

least. This is especially true where the alleged conduct by the

st ate actor (Fragozo, the police officer and part time security

guard for Castellano) is of the “random and unauthorized” type

pinpointed by Parratt as being violative of procedural due process.

Parratt

, 451 U.S. at 541.

In district court , Castellano pleaded a procedural, n ot

substantive

, due process violation. In his third amended

complaint, he claimed that he was deprived of his right to due

process and a fair trial because the defendant witnesses allegedly

fabricated evidence and gave perjured testimony. Defendants were

of the view that, post- Albright

, a § 1983 claim for substantive due

process was prohibited. Therefore, they contended in their summary

judgment m otions that Castellano had pleaded a proscribed

substantive due process claim that should be dismissed.64

In response, Castellano seized every opportunity to clarify

his position, denying that his claim was for a violation of

substantive due process; in one instance, he called defendants’

characterization “disingenuous”. Instead, Castellano carefully

explained that, because Albright apparently did not allow a standalone substantive due process claim, he was not asserting one.

Wh ether this interpretation of A lbright is accurate is

irrelevant. For the purpose of deciding what claims Castellano

presented in district court, we need look n o further than to his

own interpretation. The only s ubstantive constitutional violations

Castellano claimed were under the First, Fourth, Fifth, Sixth, and

Eighth Amendments, made applicable through the Fourteenth

Amendment. And, for a separate Fourteenth Amendment claim, he

asserted violation of his right to procedural due process and was

deliberate in explaining to the magistrate judge that he was not

claiming a violation of substantive due process.

Pursuant to Parratt

, the existence of an available independent

and adequate state remedy precludes Castella no’s procedural due

process claim. The only exception is when the plaintiff “pleads

and proves” that available state remedies are inadequate to redress

the wrong. E .g., Copeland v. Machulis

, 57 F.3d 476, 479 (6th Cir.

1995). Castellano did not do so; on the contrary, he pushed for

relief through an independent s tate malicious prosecution claim,65

apparently appreciating its “adequacy” enough to object when the

magistrate judge consolidated it with his Fourth Amendment claim.

Castellano’s pleadings aside, and as noted, the Supreme Court

has only characterized conduct of the type alleged by Castellano as

a violation of procedural due process. The majority correctly

cites Mooney v. Holohan , 294 U.S. 103 (1935), for the proposition

tha t fabricated evidence and perjured testimony are violative of

due process. M aj. Opn. at 39. But as Chief Justice Rehnquist

explained in the Albright plural ity opinion, such activities are

properly understood, under the Mooney

, Brady line of cases, to

implicate procedural, not substantive, due process:

Winship [397 U.S. 358 (1970)] undoubtedly

r ejected the notion that all of the requir e d

incidents of a fundamentally fair trial were

to be found in t he provisions of the Bill of

Rights; but it di d so as a matter of

procedural due process: “This notion [that

the government must prove the elements of a

criminal case beyond a reasonable doubt]

–

basic in our law and rightly one of the boasts

of a free society

– is a requirement and a

safeguard of due process of law in the

h istoric, procedural content of ‘d u e

process.’” S imilarly

, other cases relied on

by the dissent, including Mooney

... [and]

Brady

... were accurately described in [ United

States v. Agurs , 427 U.S. 97 (1976)] as

“dealing with the defendant’s right to a fair

trial mandated by the Due Process Clause of

the Fifth Amendment to the Constitution.”

Albright

, 510 U.S. at 273 n.6 (citations omitted; emphasis added).

In fact, the conduct described in some of these cases,

prosecutorial

— not witness

— fabrication of evidence and its66

knowing use of perjured testimony, for example, is much more

fundamental to the fairness of a trial th an, as with Fragozo and

Sanchez, a witness’ independent fabrication of evidence and perjury

— conduct not linked to the prosecutor’s conduct. Nevertheless,

the Supreme Court characte r ized such prosecutorial conduct as

procedural . Indeed, this is why, for deciding whether there is a

procedural due process violation, Parratt and its progeny consider

whether conduct was “random and unauthorized” (invoking procedural

due process), or instead part of an established stat e procedure

that is fu ndamentally flawed. See Parratt

, 451 U.S. at 543; see

also Copeland

, 57 F.3d at 479. Here, the former, not the latter,

factor is in play concerning the two remaining defendants.

This procedural/substantive distinction is indispensable to §

1983 analysis because, as discussed, Parratt precludes § 1983

claims predicated on proce dural due process where there is an

adequate state remedy, but does not preclude such claims predicated

on the violation of substantive rights that have been incorporated

into the Fourteenth Amendment. But even if we assume a rguendo

that, in di strict court, Castellano did claim a violation of

substantive due process (an assumption quite forcefully rejected by

Castellano), it is not at all clear that a witness’ fabricating

evidence and commiting perjury at trial is a sufficient basis for

a substantive due process violation.67

As noted, courts have permitted § 1983 recovery for recognized

substantive violati o ns, despite the availability of state law

remedies. See, e.g., O ’Quinn v. Manuel

, 773 F.2d 605, 608 (5th

Cir. 1985) (concluding the Parratt doctrine, while barring § 1983

claim for procedural due process, does not bar one for claimed

violation of the “substantive e ighth amendment right to be f ree

from cruel and unusual pun ishment”) (emphasis added); A ugustine

,

740 F.2d at 327 (holding Parratt doctrine does not bar § 1983 claim

for violation of the “substantive [ Fourth Amendment] right

protected by the Constitution against infringement by state

governments”). But I find no cases, and the majority cites none,

wh ere a court has r ecognized a substantive due process violation

for a witness’ evidence fabrication and perjury. And some circuits

have interpreted Albright as precluding all § 1983 claims that are

predicated on a n o more specific constitutional violation than

substantive notions of due proc ess of law (but as allowing

procedural due process or articulated constitutional provisions

such as the Fourth Amendment). See, e.g., Merkle v. Upper Dublin

School Dist. , 211 F.3d 782, 791 (3d Cir. 2000).

In an apparent effort to side step the Parratt bar, the

majority refers in its opinion only to “due process” (due process

simpliciter ?). See

, e.g.

, Maj. Opn. at 2-3, 35, and 38. But, to

truly esca pe Parratt , the majority must mean s ubstantive due68

process. The P arratt doctrine precludes simply blending procedural

and substantive due process; instead, it requires identifying the

precise nature of the claimed constitutional violation.

The conduct about which Castellano complained in district

court constitutes a procedural due process violation for which

state law provides an adequate post-deprivation remedy. Remember,

Castellano is not seeking a new criminal trial because his trial

was fundamentally unfair. The state courts provided habeas relief,

and the State did not re-prosecute. Instead, Castellano is seeking

damages for alleged wrongs

– now only by Sanchez and Fragozo

– that

occurred before and during his criminal trial. In such instances,

the state post-deprivation remedies are the “best the state can do”

to allow injured individuals recovery after injury has occurred.

Augustine

, 740 F.2d at 327. Such state remedies are sufficient to

address due process violations that are “random and unauthorized”

and therefore violate procedural due process. Id

.

The majority is attempting to treat conduct the Supreme Court

has already characterized as pote ntially violative of procedural

due process as though it is also violative of a recognized

substantive constitutional right (as with O’Quinn and th e Eighth

Amendment or Augustine and the Fourth). In so doing, it apparently

hopes that Castellano’s § 1983 claim will escape the effect of

P arratt and somehow become “supplementary to [rather than

precluded by] state remedies for constitutional injury”. M aj. Opn.69

at 37. In support, the majority cites M onroe v. Pape

, 365 U.S. 167

(1961). I d

. But that case, involving police officers breaking

into and ransacking a home, concern ed the recognized substantive

Fourth Amendment right made applicable by the due process clause of

the Fourteenth Amendment. The majority attempts to slip past the

Parratt bar on this same ground. Effectively, the majority can

only be considering Castellano’s claim as some sort of substantive

due process claim, but has avoided the damning label.

The alleged conduct by Sanchez and F ragozo is precisely the

type of “random” and “unpredictable” activity that Parratt

expressly prohibits being remedied through a claim under § 1983 –

this conduct relates to procedural du e process and there are

adequate state remedies. Again, P arratt distinguishes between the

“random and unauthorized (and hence unpre dictable) conduct of a

state actor” (such as is at issue here) and “conduct that the state

can contain and direct by instituting procedural safeguards”.

Augustine

, 740 F.2d at 327. The availability of a post-deprivation

state tort remedy does satisfy due process in the former instance,

but not in the latter. I d

. Again, the conduct at issue here —

alleged witness fabrication of evidence and perjury

— is precisely

the sort of “random and unauthorized” conduct to which Parratt

applies; therefore, the existence of adequate post-deprivation

state remedies, such as through a malicious prosecution claim, bars

a § 1983 procedural due process claim.70

Relying almost exclusively on Justice Kennedy’s Albright

concurrence, the majority concludes that “the Parratt doctrine is

[not] applicable to Castellano’s cl aim that the manufacturing of

evidence and use of perjured testimony at trial

... denied him due

process”. M aj. Opn. at 35. The majority first claims that Justice

Kennedy warned of the contra-indications of Parratt

, noting that in

some instances federal po wer ought to be vindicated, rather than

rely on state law remedies. This is true; but that is only part of

the equation. The majority then refers, by way of example, to

Monroe ’s “reading of § 1983 as supplementary to state remedies for

constitutional injury”. M aj. Opn. at 37. Returning to Justice

Kennedy, the majority states that this notion — of § 1983 claims

suppleme nting state remedies — “finds expression in Justice

K ennedy’s statement that a claim of malicious initiatio n of

criminal proceedings ‘differs in kind’ from claims that implicate

‘fund amental fairness in the determination of guilt at trial’”.

Maj. Opn. at 37-38. The majority then determines that this latter

type of claim is one “in which the federal power ought to be

vindicated” and is therefore not barred by Parratt

. Id

.

As a preliminary matter, Justice Kennedy made a factual

distinction between malicious initiation of c harges and conduct

that occurs during a trial; this was only a factual, chronological

disti nction. The majority’s conclusion is that the distinction

Justice Kennedy made between the conduct in Albright’s case and in71

other cases is actually a significant legal decision, identifying

the conduct in those other cases as “beyond the reach of Parratt ”.

Maj. Opn. at 38. Justice Kennedy never made such a conclusion. As

noted, Chief Justice Rehnquist, writing for the plurality,

c haracterized these as violations of procedural due proce ss;

Justice Kennedy did not challenge that.

That Justice Kennedy walked Albright’s conduct through the

Parratt analysis, but did not do s o for other types of conduct

(like that at issue here), in no way implies that Parratt does not

apply to the latter. A lbright did not involve witness evidence

fabrication and perjury; acco r dingly, Justice Kennedy did not

address it. But, by walking the conduct at issue here through the

steps Justice Kennedy applied in Albright

, it is clear that

Parratt ’s proscriptions are a perfect fit.

Even assuming, arguendo

, that Justice Kennedy’s factual

distincti on is meant to imply that there are substantive due

process rights in the fundamental fairness of a trial, he does not

identify conduct sufficient to invoke them beyond a p rosecutor’s

knowing use of perjury ( Mooney ) and the requirement of proving

elements of a criminal conviction beyond a reasonable doubt

( Winship ). It is the majority that holds that a witness’ evidence

fabrication and perjury are sufficient to invoke it.

But again, a due process claim can bypass Parratt in only two

ways: (1) the claim is substantive; or (2) it is procedural, but72

available state remedies are inadequate. There is no dispute that

Castellano has neither pleaded nor proved the inadequacy of state

remedies. Apparently this is why the majority finds it necessary

to provi de cover for the only possible claim – substantive due

process. But, because Castellano argued to the magistrate judge

against construing his claim as substantive, the majority labels it,

simply, “due process”.

To support bypassing Parratt

, the majority po ints to Justice

Kennedy’s statements that courts have “been cautious in invoking the

rule of Parratt ” and that “[w]e want to leave an avenue open for

recourse where we think the federal power ought to be vindicated”.

Maj. Opn. at 37 (quoting Albright

, 510 U.S. at 284-85 (Kennedy, J.,

concurring)). Again, the majority opines that one avenue for

vindicati on is where a witness fabricates evidence or commits

perjury; but, again, Justice Kennedy never says that. Again, the

majority cites language from earlier in Justice Kennedy’s

concurrence, where he made a factual distinction, without

elaboration, on the difference between the type of conduct in

A l bright and that in other cases. S ee Albright

, 510 U.S. at 283

(Kennedy, J., concurring). Of particular importance to this action,

Justice Kennedy then cautioned, however:

But the price of our ambivalence over the outer

limits of Parratt has been its dilution.... The

Parratt rule has been avoided by attaching a substantive

rather than procedural label to due process claims

(a distinction that if accepted in this context73 would render P arratt a dead letter) and b y

treating claims based on the Due Process Clause

as claims based on some other constitutional

provision.

Albright

, 510 U.S. at 285 (Kennedy, J., concurr ing). (Of course,

this is precisely what the majority is doing — trying to

characterize the two remaining defendants’ conduct as violative of

something other than procedural due process, so that the new claim

can slip past Parratt .) To stem this “dilution”, Justice Kennedy

offers this compelling guidance:

These evasions are un justified given the

clarity of the P arratt rule: In the ordinary

case where an injur y has been caused n ot by a

s tate law, policy, or procedure, but by a

random and unauthorized act that can b e

remedied b

y state law , there is no basis for

intervention un der § 1983, at least in a suit

based on “the Due Process Clause of the

Fourteenth Amendment simpliciter”

.

Id

. (emphasis added). There can be no more accurate description of

Castellano’s due process claim in district court. (Again, he does

not present such a claim on appeal.)

As a final note, the very reason wh y, in state court,

Castellano added federal law claims must not be overlooked. He did

so through amended complaints in an apparent effort to avoid state

law immu n ity. Justice Kennedy warned: “The commonsense teaching

of Parratt is that some questions of property, contr act, and tort

law are best resolved by state legal systems without resort to the

federal courts”. A lbright

, 510 U.S. at 284 (K ennedy, J.,74

concurring). He later notes that “[t]he P arratt principle respects

the delicate balance between state and federal courts and comports

with the design of § 1983....” I d. P arratt makes very clear:

“Although the state remedies may not provide the respondent with all

the relief which may have been available if he could have proceeded

under § 1983, that does not mean that the state remedies are not

adequate to satisfy the requirements of due process”. P arratt

, 451

U.S. at 544. In P arratt

, there was “no contention that the

procedures themselves [were] inadequate”. Id . at 543. Nor is there

one here.

B.

In his third amended complaint, Castellano added a Fourth

Amendment cl aim. As noted, the magistrate judge consolidated it

with Castellano’s origi nal state law malicious prosecution claim.

Al though Castellano objected to this rejection of the state law

malicious prosecution claim as a separate, stand-alone claim, he

never objected to the transformation of the Fourth Amendment claim

in to a § 1983 malicious prosecution claim. And, as with his

procedura l due process claim, he did n ot present the issue on

appeal.

We should not remand for a new trial on a Fourth Amendment

claim. At trial and on appeal, despite A lbright

, Castellano

repeatedly turned his back on the one claim he had under federal law

– the Fourth Amendment. He was denied trial on a Fourth Amendment75

claim and a supplemental state malicious prosecution claim; but, he

elected not to contest that denial on appeal.

Litiga tion must come to an end; fairness must be shown both

sides. In my view, it is quite unfair to defendants, especially in

the light of what repeatedly took pl ace at trial concerning the

Fourth Amendment claim, to afford Castellano yet another opportunity

to try such a claim.

C.

As noted, Castellano originally pleaded a s tate malicious

prosecution claim. As also noted, the majority incorrectly states

he “amended his complaint, purposely abandoning [this] claim under

state law”. M aj. Opn. at 45. In his original state court

complaint, Castellano presented only a malicious prosecution claim.

Following his addition of § 1983 claims (apparently to avoid state

law immunity) and the subseque nt removal of the action to federal

court, the magistrate judge ruled that Castellano’s action was based

entirely on malicious prosecution in the context of a claim brought

pursuant to § 1983. Castellano’s motion for reconsideration was

denied.

The magistrate judge erred in placing the state law claim under

§ 1983; Castellano identified the error and objected. But, as

noted, he never pres ented the issue on appeal. Instead, he

contended in our court that the j udgment was c orrect (and, by

extension, that the consolidation ruling upon which the verdict is76

based should stand). Significantly, the majority never suggests

Castellano presented this issue on appeal. Nevertheless, it remands

for a new trial to include a malicious prosecution claim.

The majority states that Castellano “purposely abandoned” his

state law malicious prosecution claim “because our case law said the

elements of malicious prosecution under state law and under a § 1983

claim were the same”. M aj. Opn. at 45. As noted, this is

inaccurate; the magistrate judge, not Castellano, merged the claims.

Presumably, the majority, out of sympathy for Castellano, would

still give him the benefit of this change in our precedent,

considering it unfair for Castellano to be burdened by our earlier

erroneous precedent.

But Castellano was not so burdened . He made a specific

objection by motion to the con s olidation (which was denied).

Thereafter, as noted, he did not present the issue on appeal

— even

though he had every reason to do so. He was quite aware of both

Albright and Judge Jones’ extremely compelling concurrence in Kerr

,

and had access to the law with respect to this issue in other

circuits. Every factor on which our court now relies in changing

the law concerning § 1983 malicious prosecution was either expressly

or constructively before Castellano in district court. Indeed, he

considered t he magistrate judge’s ruling on this issue erroneous.

It was his option, therefore, to present this contention on appeal.77

He elected not to do so. We cannot now pretend that he did. Nor

can we allow him to pursue this claim on remand.

D.

As a final act of lawyering this action for Castellano, the

majority also allows him to plead “any [other] state claims he may

have” on remand. M aj. Opn. at 45. This action has become openended. In essence, the majority is starting it anew. Instead, it

should be at an end.

III.

Sympathy for a litigant does not permit us to entertain claims

not presented on appeal

— most especially, those of constitutional

dimension. It most certainly does not allow us to create, sua

sponte

, a new remedy f or that litigant and an erroneous remedy at

that. At Castellano’s election, only the now-proscribed § 1983

malicious pros e cution claim was at issue before our court; the

following claims w e re not: (1) Fourteenth Amendment due process;

(2) Fourth Amendment; (3) state malicious prosecution; and (4) any

other state claim Castellano can dr eam up on remand. In addition

to the new § 1 983 due process claim’s being violative of P arratt

,

any relief the majority accords Castellano on these issues greatly

exceeds the scope of this appe al and is violative of long

established appellate rules to which we require parties to adhere

— day in and day out — at their prejudice.78

Accordingly, although I fully concur in our finally proscribing

a claim under § 1983 for malicious prosecution, I must respectfully

dissent from both the creation of the new § 1983 due process remedy

and the remand of this action for yet another round of litigation.

Instead, I would vacate and render for appellants. This is not an

unfair result

— far from it. It is the result for which Castellano,

by his election on appeal, rolled the dice ... and lost.