1 We do not address the other points of error raised in appellants' briefs. United States Court of Appeals,

Fifth Circuit.

No. 91–8108.

Mary TURNER a/k/a Mary Turner Hind, Plaintiff–Appellee,

v.

UPTON COUNTY, TEXAS and Glenn Willeford, Individually, Etc., Defendants–Appellants.

Aug. 5, 1992.

Appeals from the United States District Court for the Western District of Texas.

Before GOLDBERG, HIGGINBOTHAM, and DAVIS, Circuit Judges.

PER CURIAM:

Plaint iff Mary Turner brought this § 1983 action against Upton County, its former sheriff, the

district attorney

, and others, alleg ing t hat t he individual defendants conspired to subject her to a

"sham trial" for possession of contraband. In essence, she alleged that the sheriff paid an informant

to plant drugs at Turner's business premises, and that the sheriff and informant later conspired, along

with the district attorney

, to force Ms. Turner to stand trial on a trumped-up charge. A jury returned

a verdict against the sheriff, the district attorney and Upton County, but the district court entered a

judgment notwithstanding the verdict as to the district attorney on the ground of insufficient evidence.

The sh eriff and Upton County appeal from the denial of their motions for judgment

notwithstanding the verdict arguing, as they did below, that the evidence was insufficient to sustain

the verdict as against them, as well. We have reviewed the transcript of the trial proceedings and are

driven to the conclusion that the evidence necessary to support the jury verdict is lacking.

Accordingly, we REVERSE. 1

I.

On August 7, 1985, Plaintiff–Appellee Mary Turner was work ing at her family-owned2 There is no evidence in the record before us as to the substance of Sheriff Willeford's

testimony at the trial. convenience store in Rankin, Texas when Walter Woolf, an acquaintance of Turner's, entered the

store. After engaging in brief conversation with Turner, Woolf spent several minutes loitering among

the aisles of merchandise and then hurriedly left the store. Later that day, Upton County Sheriff

Glenn Willeford, deputies Benny Clifton and Ron Roberts, and dispatcher Deanna Coleman entered

the store with a search warrant and proceeded to search t he store. Sheriff Willeford discovered a

small plastic bag containing methamphetamine among the merchandise in the area of the store where

Woolf had loitered earlier that day.

Sheriff Willeford placed Turner under arrest. Turner was charged with possession of

m ethamphetamine, a felony, and indicted by a grand jury. At her trial, which began on March 24,

1987, both Woolf and Sheriff Willeford testified for the government. Woolf testified that he had seen

Turner purchase the methamphetamine at a motel shortly before the search of her store. 2

After four days of trial, the government rested its case against Turner. At the end of the

proceedings that day, a meeting was held at which Turner, her attorney, District Attorney J.W.

Johnson, Assistant District Attorney Albert Va l dez and Sheriff Willeford were present. At that

meeting, Valdez showed Turner a phot ograph t hat had not been admitted as evidence. That

photograph showed Woolf's view of the motel from which he had allegedly seen Turner purchase the

methamphetamine in August of 1985. The trees in t he photograph contained no leaves. Turner

pointed out that Woolf could not have seen her at the motel because in August the trees would have

been full of leaves, thus blocking the view of the motel from the site of the photograph. The parties

agreed that the photograph established Turner's innocence and the district attorney dismissed the case

the next day.

II.On December 8, 1988, Turner filed suit against Upton County, Woolf, Sheriff Willeford, and

Larry Dale Jackson, one of the government's witnesses at Turner's criminal trial. On March 16, 1989,

Turner added District Attorney Johnson as a defendant. Woolf did not answer. Turner's suit, which

was based on 42 U.S.C. § 1983, alleged that Sheriff Willeford, in violation of Turner's due process

rights, paid Woolf to plant the methamphetamine in her store and then seized the substance pursuant

to the search

warrant, leading to her arrest, indictment and criminal trial. Turner also alleged that

Sheriff Willeford conspired with District Attorney Johnson to prosecute her on what they knew to

be a false charge, and to attempt to convince her to plead guilty to the offense, knowing that she was

innocent.

The district court granted summary judgment in favor of Upton County, holding that it could

not be held liable for the alleged acts of the sheriff and district attorney

. On appeal from a certified

judgment under Rule 54(b), Fed.R.Civ.P., this court reversed the summary judgment and remanded

the case for trial. T

urner v. Upton County, Texas, 915 F.2d 133 (5th Cir.1990), cert. denied,

–––

U.S.

––––, 111 S.Ct. 788, 112 L.Ed.2d 850 (1991). This co urt reasoned that "the sheriff's

participation as a coconspirator, co nst it uting as it would an abuse of his authority as the ultimate

reposi tory of law enforcement in Upton County, would render the county liable as well." I d. at 137.

The court applied the same reasoning with respect to the di st rict attorney: "The sheriff's and the

district attorney's alleged participation in the conspiracy, if proven, will suffice to impose liabilit y on

the county." I

d. Finally, this court observed that liability could attach for conduct of other

defendants, even those who were not state actors, so long as that defendant joined the conspiracy.

Id. at n. 6. This court also held that trial court's ruling that a two-year statute of limitations applied

to Turner's allegations was "the law of the case" because Turner had not appealed that issue. Thus,

Sheriff Willeford and Upton County could be held liable only for their actions taken from and after

December 8, 1986, and that District Attorney Johnson and the County could be held liable only for

their actions taken from and after March 16, 1987. The events surrounding the alleged planting of

the drugs, Turner's arrest and her indictment were no longer available as a cause of action: The3 She did offer her theory that Sheriff Willeford's motive was to subject her to trumped-up

charges and impugn her integrity. However, she had nothing to offer with respect to Willeford's

alleged role in the conspiracy. In fact, she opined that it was Willeford who proposed that the

plastic bag containing the narcotics be fingerprinted—an investigative effort seemingly

inconsistent with her allegation that Sheriff Willeford knew that Woolf planted the drugs in

Turner's store.

4 That testimony was not admissible under Rule 801(d)(2)(E), Fed.R.Evid., because the

statement, although made by an alleged co-conspirator, was not made in furtherance of the

conspiracy.

5 Clifton did testify that he was fired by Sheriff Willeford and that "the sheriff's verbal statement

to [him] was that [he was] cutting [the sheriff's] throat on Mary Turner." 7R. at 66. When asked

what the sheriff had meant by that, Clifton was at a loss: "You would have to ask the sheriff. I

asked him the same thing and I was told he didn't have to tell me a damn thing." Id. at 66–67. defendants could only be held liable for conduct pertaining to the sham trial.

On remand, the district court conducted a jury trial. Plaintiff Turner was the first witness.

She testified about the events surrounding her arrest and the sham trial. Specifically, she testified that

she never engaged in any narcotics activity, and that Woolf's testimony to that effect at her sham trial

was untruthful. Turner did not offer any testimony with respect to the content of Sheriff Willeford's

testimony at the sham trial, nor did she offer any testimony establishing that Sheriff Willeford was in

cahoots with Woolf. 3 Charlotte Hogan testified that Woolf admitted to her that Sheriff Willeford had

paid him to plant the dope in Turner's store. But the district court properly sustained the defendants'

hearsay objection and ruled that such evidence was not admissible as against Sher iff Willeford or

Upton County. 4 Deputy Sheriff Benny Clifton testified that Sheriff Willeford summoned him to assist

with the search of Turner's store. According to Clifton, Sheriff Willeford told him that "information

concerning this particular sear ch and t he basis of the search warrant had already cost [Sheriff

Willeford] $500.00." Clifton did not testify that Sheriff Willeford admitted to paying Woolf $500 to

plant the dope, only that Willeford said he had paid Woolf for the information leading up to the search

and ultimate arrest of Turner. 5 No other witness t estified concerning the substance of Sheriff

Willeford's testimony at the sham trial, nor did Turner offer into evidence the transcript of the sham

trial proceedings. Thus, the jury was not apprised of the sheriff's testimony.6 Turner agreed that the evidence against Jackson was woefully inadequate and consented to a

nonsuit.

7 Turner does not appeal the district court's dismissal of the judgment against District Attorney

Johnson. After Turner rested, the defendants moved for a directed verdict. The district court granted

Jackson's motion, but denied all others. 6 The defendants opted to rest wi thout presenting any

evidence in their defense. The district court duly instructed the jury and submitted the case for the

jury's deliberatio n. The jury reached a verdict. It found that Sheriff Willeford individually denied

Turner's due process rights and that Sheriff Willeford, District Attorney Johnson and Woolf conspired

to violate her due process rights. The jury awarded $500,000 compensatory damages against Sheriff

Willeford, District Attorney Johnson and Woolf, $1,500,000 punitive damages each against Sheriff

Willeford and District Attorney Johnson, and $100,000 punitive damages against Woolf. The district

court entered final judgment in accordance with the jury's verdict, imposing joint and several liabilit y

for the compensatory damages against Woolf, Sheriff Willeford and the County.

Sheriff Willeford, the County and District Attorney Johnson each filed motions for judgments

notwithstanding the verdict. The district court denied Sheriff Willeford's and Upton County's

motions, but granted District Attorney Johnson's, holding that there was n o evidence that District

Attorney Johnson had conspired with anyone to violate Turner's due process rights. Sheriff Willeford

and Upton County appeal the judgments against them. 7

III.

The County and Sheriff Willeford argue that the district court erred in denying their motions

for directed verdicts and judgments notwithstanding the verdict because the evidence is insufficient

to support the jury's determination that Sheriff Willeford violated Turner's due process rights, either

individually or as part of a conspiracy.

This case, as any appeal from the denial of a judgment notwithstanding the verdict, seeksenlightenment from the pellucid words of Boeing Co. v. Shipman:

On motions for directed verdict and for judgment notwithstandi ng the verdict the Court

should consider all of the evidence—not just that evidence which supports the non-mover's

case—but in the light and with all reasonable inferences most favorable to the party opposed

to the motion. If the facts and inferences point so strongly and overwhelmingly in favor of

one party that t he Co urt believes that reasonable [persons] could not arrive at a contrary

verdict, granting of the motions is proper. On the other hand, if there is substantial evidence

opposed to the motions, that is, evidence of such quality and weight that reasonable and

fair-minded [persons] in the exercise of impartial judgment might reach different conclusions,

the motions should be denied, and the case submitted to the jury.

411 F.2d 365, 374–75 (5th Cir.1969) (en banc).

The County and Sheriff Willeford rely on the district court's prior statute of limitations ruling

for t heir argument. Although the district court allowed the jury to hear evidence of the events

surrounding the planting of the drugs, Turner's arrest and her indictment, they argue that those events

occurred outside the statute of limitations time period and that the evidence could not be considered

by the jury in support of its verdict. Therefore, the argument continues, the jury could consider only

evidence, if any, that Sheriff Willeford committed acts in vio lat io n of Turner's due process rights

during Turner's criminal trial, as that is the only relevant event occurring after December 8, 1986.

In addressing the jury's finding that Sheriff Willeford conspired with Woolf and District

Attorney Johnson to violate Turner's due process rights, the County and Sheriff Willeford first point

to the fact that in granting District At t orney Johnson's motion for judgment notwithstanding the

verdict, the district court held that there was no evidence that District Attorney Johnson entered into

or participated in a conspiracy to violate Turner's due process rights. They argue that as Turner has

not appealed the granting of that motion, the law of this case is that District Attorney Johnson and

Sheriff Willeford did not enter into a conspiracy. Thus, the argument continues, the only possible

co nspiracy would be between Sheriff Willeford and Woolf, and, considering only the events at

Turner's criminal trial, Turner has failed to show any evidence of such a conspiracy.Our p revio us o pinion in this case held that the County could be liable for any illegal or

unconstitutional actions by Sheriff Willeford in his capacity as the final policymaker in the area of law

enforcement in Upton County. T urner, 915 F.2d at 136. Those actions include, but are not limited

to, his participation in a conspiracy with another party, whether or not that party is a state actor. I d.

at 136–37. Thus, Upton County can be held liable either for Sheriff Willeford's actions individually

or for the actions of Sheriff Willeford or a co-conspirator in furtherance of a conspiracy to violate

Turner's due process rights. Critically, the actionable injury in a civil conspiracy flows from the overt

acts of the defendants, not from the mere continuation of a conspiracy. H elton v. Clements, 832 F.2d

332, 335 (5th Cir.1987); S ingleton v. City of New York, 632 F.2d 185, 193 (2d Cir.1980), cert.

denied, 450 U.S. 920, 101 S.Ct. 1368, 67 L.Ed.2d 347 (1991); K adar Corp. v. Milbury, 549 F.2d

230, 235 (1st Cir.1977); H offman v. Halden, 268 F.2d 280, 295 (9th Cir.1959). Therefore, whether

liabilit y rests on a conspiracy between Sheriff Willeford and Woolf or on Sheriff Willeford's actions

alone, there must be sufficient evidence of an overt act committed during the time period not barred

by the statute of limitations.

The County and Sheriff Willeford have misconstrued the effect of the statute of limitations

on this action. Although the statute of limitations clearly destroys the utility of the events occurring

before December 8, 1986 as the basis of a cause of action, Turner, 915 F.2d at 135, the statute does

not make relevant evidence of the creation and pursuit of the conspiracy inadmissible at trial. Turner

cannot recover for damages arising from any acts Sheriff Willeford committed before that date, but

t he statute of limitations does not preclude the jury from considering those events as evidence in

support of its verdict that Sheriff Willeford committed overt acts in furtherance of the scheme after

December 8, 1986, thereby violating Turner's due process rights. In short, the jury was not limited

to considering only evidence of the events occurring at Turner's criminal trial; neither are we so

limit ed in our review of the evidence. Nevertheless, we conclude that the evidence was insufficient

to sustain the verdict.8 Of course, had Woolf testified that the sheriff paid him to plant the dope, that evidence would

have permitted the jury to conclude that Sheriff Willeford was involved in the scheme to

maliciously prosecute Turner. To support an inference that Sheriff Willeford (and hence Upton County) acted to deprive

Turner of her due process rights, Turner had to produce some evidence that Willeford was aware that

the charges against Turner were in fact trumped up. Turner's t heo ry of the case was that Sheriff

Willeford paid Woolf to plant the drugs in Turner's store and thus knew, when he testified at the sham

trial, that Turner was not guilty of the drug charges against her. But no evidence was admi tted

against Willeford establishing his participation in, or knowledge of, Woolf's successful effort to plant

the dope in Turner's store. Neither Turner nor Hogan nor Clifton testified to facts that would allow

such an inference. All we know from Turner is that she did not transact in any narcotics, that the

dope discovered in her store did not belong to her, and that Woolf's contrary testimony at the sham

trial was perjurious. Hogan's test imo ny verified that the dope was not Turner's because Woolf

admitted to Hogan that he planted the dope and that he was paid $500 to do so. Al though that

testimony constituted a nonhearsay party admission as to Woolf, see Rule 801(d)(2)(A), Fed.R.Evid.,

it was pure, unadulterated hearsay as to Sheriff Willefo rd and Upton County and therefore

inadmissible as to them. Thus, Hogan's testimony could no t pro vide t he necessary link between

Woolf's actions and the sheriff's alleged, knowing participation. 8 Finally, Clifton's testimony at most

hinted that the sheriff

was engaged in some foul play, but again, his testimony was vague on the

critical issue of whether the sheriff had participated in, or acquiesced to, Woolf's planting the dope

in Turner's store. The fact that the sheriff testified for the prosecution and against Turner at her

criminal trial could have served as t he necessary overt act in furtherance of the conspiracy if only

there was evidence establishing that Sheriff Willeford was in cahoots with Woolf and thus testified

falsely at the sham trial. Because there was no admissible evidence to that effect, we must conclude

that the evidence was insufficient to prove that Sheriff Willeford launched or fueled the prosecution

of the baseless charges against Turner.

IV.It is rare that we raise the ensign "stop" to a jury verdict. Ordinarily we yield to the jury,

recognizing that, when approaching an evidentiary intersection, the jury possesses the right-of-way.

But Boeing confers upon the appellate court a license to reverse the jury's direction either when the

oncoming traffic is unusually heavy or when there is no petrol to fuel the verdict. In this case, the

tank of evidence contained nothing more than fumes.

The ju dgment s against Sheriff Willeford and Upton County are hereby REVERSED. The

district court shall enter take-nothing judgments in their favor.