12-2479-cv

Marshall v. Randall

1 UNITED STATES COURT OF APPEALS

2 FOR THE SECOND CIRCUIT

3 August Term 2012

4 (Argued: March 8, 2013 Decided: June 12, 2013)

5 Docket No. 12-2479-cv

6 -----------------------------------------------------x

7 JOSHUA MARSHALL,

8

9 Plaintiff-Appellee,

10

11 -- v. –-

12

13 P.O. SALIM RANDALL, Shield No. 15331, Individually and in 

14 His Official Capacity, P.O. MICHAEL BURBRIDGE, Shield No. 

15 15488, Individually and in His Official Capacity,

16

17 Defendants-Appellants,

18

19 THE CITY OF NEW YORK, JOHN DOE, P.O.’s #1-10 Individually 

20 and in Their Official Capacities, (the name John Doe 

21 being fictitious, as the true names are presently 

22 unknown),

23

24 Defendants.

25

26 -----------------------------------------------------x

27 B e f o r e : WALKER, LYNCH, and CARNEY, Circuit Judges.

28 Defendants-Appellants Salim Randall and Michael Burbridge 

29 appeal from the 2012 judgment of liability of the United States 

30 District Court for the Eastern District of New York (Weinstein, 

31 Judge). After a jury trial, Defendants-Appellants were found 

32 liable for false arrest, malicious prosecution, and violation of 

33 Joshua Marshall’s right to a fair trial. They were ordered to pay

34 damages of $95,000 each. We hold that there was no error in the 

35 district court’s trial rulings. AFFIRMED.
2

1 JON L. NORINSBERG (Gerald M. Cohen, 

2 Joshua P. Fitch, Cohen & Fitch LLP, 

3 on the brief), New York, NY, for

4 Plaintiff-Appellee.

5

6 AVSHALOM YOTAM (Francis F. Caputo, 

7 Karen M. Griffin on the brief), of 

8 counsel to Michael A. Cardozo, 

9 Corporation Counsel of the City of 

10 New York, New York, NY, for

11 Defendants-Appellants.

12

13

14 JOHN M. WALKER, JR., Circuit Judge:

15 Defendants-Appellants Salim Randall and Michael Burbridge 

16 appeal from the 2012 judgment of liability of the United States 

17 District Court for the Eastern District of New York (Weinstein, 

18 Judge). After a jury trial, Defendants-Appellants were found 

19 liable for false arrest, malicious prosecution, and violation of 

20 Joshua Marshall’s right to a fair trial. They were ordered to pay 

21 damages of $95,000 each. We hold that there was no error in the 

22 district court’s trial rulings and affirm the judgment.

23 BACKGROUND

24 We assume the parties’ familiarity with the underlying facts 

25 and procedural history and recite only those details relevant to 

26 this appeal.

27 On May 15, 2008, Marshall was arrested in Brooklyn by Police 

28 Officers Randall, Burbridge, and Kieran Fox (who is not a defendant 

29 in this case). Marshall was walking down a sidewalk with another 

30 man, Demetrios Meade, when they were approached by the officers. 

31 As the officers drew near, one of the men threw away a gun, which 
3

1 landed in the street. The officers arrested Marshall on the charge 

2 of possessing a loaded firearm. Their statements to the local 

3 district attorney resulted in a criminal complaint against 

4 Marshall, and their testimony to a grand jury led to Marshall’s 

5 indictment. Marshall was released in September 2008 after four 

6 months in jail. Approximately eight months after his release from 

7 jail, the judge dismissed Marshall’s case on speedy trial grounds.

8 Marshall then sued Randall and Burbridge under 42 U.S.C. 

9 § 1983 for false arrest, malicious prosecution, and denial of his 

10 constitutional right to a fair trial. The essence of Marshall’s 

11 claim was that the officers lied when they said they had seen 

12 Marshall throw the gun. At trial, Marshall called the two officers 

13 as part of his direct case and cross-examined them as hostile 

14 witnesses. Marshall’s strategy at trial was to attack the 

15 officers’ credibility based on inconsistencies in their accounts of 

16 the events on the night of the arrest.

17 The initial police complaint and arrest report, filled out by 

18 Randall, indicated only that Marshall “was found to be in 

19 possession of a loaded firearm.” J.A. 85 (Police Compl.). The 

20 criminal complaint filed by the Kings County District Attorney’s 

21 office similarly stated that Randall “observed the defendant in 

22 possession of a loaded .38 Caliber Smith and Wesson revolver.” Id.

23 at 104 (Crim. Ct. Compl.). Randall testified to the grand jury

24 that Marshall “pulled a firearm out of his waist[band] and tossed 
4

1 it into the street.” Id. at 129-30 (Grand Jury Tr.). At his 

2 deposition, Randall testified that he saw Marshall in physical 

3 possession of the pistol “[w]hen he reached into his pants and 

4 pulled out an object and threw it to the ground.” Id. at 571 (Dep. 

5 Tr.). At trial, however, Randall admitted that he never saw the 

6 gun in Marshall’s “actual physical possession,” id. at 1001 (Trial 

7 Tr.), but that he “saw the motion, . . . [and] heard the clink when 

8 it hit the ground,” id. at 1003 (Trial Tr.). 

9 The evidence against Burbridge was similar. The criminal 

10 complaint stated that Burbridge “recovered [the] revolver from the 

11 ground where [Burbridge] observed the defendant throw it.” Id. at 

12 104 (Crim. Ct. Compl.). Burbridge testified to the grand jury that 

13 he “observed Mr. Marshall remove what appeared to be a silver 

14 firearm from his waist[band] and throw it under a vehicle.” Id. at 

15 123-24 (Grand Jury Tr.). At his pre-trial deposition, Burbridge 

16 testified that he could not remember from which part of his 

17 waistband Marshall pulled the gun, but at trial he testified that 

18 Marshall pulled the gun from the center of his waistband. 

19 Burbridge also gave conflicting deposition testimony about whether 

20 he saw Marshall make a furtive movement before his decision to 

21 approach Marshall and Meade, or whether that decision had been 

22 based entirely on his recognition of Marshall from a NYPD database 

23 of police and arrest reports.
5

1 The jury found Randall and Burbridge liable on all three 

2 counts and awarded $95,000 in compensatory and punitive damages 

3 against each officer. This appeal followed.

4 DISCUSSION

5 Randall and Burbridge challenge three elements of the district 

6 court’s trial rulings: (1) the use of their grand jury testimony as 

7 violative of the rule in Rehberg v. Paulk, 132 S. Ct. 1497 (2012); 

8 (2) the lack of a jury instruction disclosing that Marshall’s 

9 criminal case was dismissed on speedy trial grounds; and (3) the 

10 exclusion from trial of evidence that Burbridge stopped Marshall in 

11 part because he recognized Marshall from a review of NYPD arrest 

12 reports.

13 1. Use of Grand Jury Testimony

14 Citing Rehberg, Randall and Burbridge argue that their grand 

15 jury testimony, admitted for impeachment purposes, was improperly 

16 used by Marshall as a basis for liability. Marshall responds that 

17 the use of grand jury testimony for impeachment did not violate 

18 Rehberg’s holding that a grand jury witness has immunity from a 

19 malicious prosecution action based on the witness’s grand jury 

20 testimony. We hold that the grand jury testimony was properly 

21 admitted for impeachment purposes and that the manner in which it 

22 was used at trial did not contravene the rule in Rehberg.

23 We review the district court’s evidentiary rulings for abuse 

24 of discretion and “will reverse only if an erroneous ruling
6

1 affected a party’s substantial rights.” Marcic v. Reinauer Transp. 

2 Cos., 397 F.3d 120, 124 (2d Cir. 2005). In general, a party is 

3 entitled to a new trial if the district court committed errors that 

4 “were a clear abuse of discretion that were clearly prejudicial to 

5 the outcome of the trial,” where prejudice is measured “by 

6 assessing the error in light of the record as a whole.” Id.

7 (quotation marks omitted). A district court abuses its discretion 

8 if it “base[s] its ruling on an erroneous view of the law or on a 

9 clearly erroneous assessment of the evidence.” In re Sims, 534 

10 F.3d 117, 132 (2d Cir. 2008) (quotation marks omitted).

11 In Rehberg, the chief investigator for a local district 

12 attorney was sued in a § 1983 action following Rehberg’s indictment 

13 based on the investigator’s grand jury testimony. The Supreme 

14 Court held that “a grand jury witness has absolute immunity from 

15 any § 1983 claim based on the witness’ testimony.” Rehberg, 132 S. 

16 Ct. at 1506. It reasoned that the justifications for absolute 

17 immunity for trial witnesses also applied to grand jury witnesses:

18 “In both contexts, a witness’ fear of retaliatory litigation may 

19 deprive the tribunal of critical evidence. And in neither context 

20 is the deterrent of potential civil liability needed to prevent 

21 perjurious testimony.” Id. at 1505; see also Briscoe v. LaHue, 460 

22 U.S. 325 (1983) (establishing trial witness immunity). The Court 

23 also noted that the “subversion of grand jury secrecy” was an 

24 additional supporting factor. Id. at 1509.
7

1 This case asks us to consider what the Supreme Court meant by 

2 “any § 1983 claim based on the witness’ testimony.” Id. at 1506 

3 (emphasis added). In Rehberg, the plaintiff’s assertion of § 1983 

4 malicious prosecution liability was predicated exclusively on the 

5 allegations that the investigator lied to the grand jury. In this 

6 case, Marshall presented evidence of grand jury testimony, along 

7 with (among other things) the police report, the officers’ 

8 statements to the district attorney as reflected in the criminal 

9 complaint, and the inconsistencies in deposition and trial 

10 testimony. We must determine whether the use of the officers’

11 grand jury testimony for impeachment purposes and the references to 

12 the grand jury testimony during opening and closing statements in 

13 this § 1983 action nonetheless caused the action to be “based on” 

14 the witness’s grand jury testimony. 

15 Turning first to the use of grand jury testimony for 

16 impeachment, we agree with the district court that such use does 

17 not violate Rehberg. Evidence that is inadmissible as direct proof 

18 is frequently permitted for impeachment purposes. See, e.g.,

19 United States v. Griffith, 385 F.3d 124, 126-27 (2d Cir. 2004) 

20 (noting that there is a “distinction between using evidence to 

21 prove substantive guilt and using evidence to impeach” and 

22 collecting cases); see also Harris v. New York, 401 U.S. 222, 225-

23 26 (1971) (holding that a statement made by a defendant to police 

24 in violation of Miranda is inadmissible as direct evidence but 
8

1 admissible for impeachment purposes). And juries are often called 

2 upon to distinguish between proper and improper purposes of 

3 testimony. 

4 When Marshall questioned the officers as hostile witnesses, 

5 their grand jury testimony was admitted only to attack their 

6 credibility. The district court was explicit in its jury 

7 instruction that this testimony could not be a basis for liability: 

8 “A defendant cannot be held liable for what he said to the grand 

9 jury. He may be held liable for what he said to the prosecutor if 

10 his statement was not in preparation for his grand jury testimony.” 

11 J.A. 1218 (Trial Tr.). We have no reason to believe the jury did 

12 not follow this instruction. See United States v. Downing, 297 

13 F.3d 52, 59 (2d Cir. 2002) (“Absent evidence to the contrary, we 

14 must presume that juries understand and abide by a district court’s 

15 limiting instructions.”) (citing Zafiro v. United States, 506 U.S. 

16 534, 540-41 (1993)). Therefore, the use of grand jury testimony to 

17 impeach the officers did not violate Rehberg and is not grounds for 

reversal.

1 18

 

1 We are mindful of the potential for jury confusion in a case such 

as this, in which the underlying factual subject of the grand jury 

testimony used to impeach the defendants - which could not be used 

as a direct basis for suit under Rehberg - is the same as the 

factual subject that underlies the suit and the previous 

prosecution. In this case, that would be whether the police 

officers actually saw Marshall in possession of a gun. Plainly, 

there would be no such potential for confusion had the officers 

given conflicting statements as to a collateral matter, such as how 

brightly the street was lit on the night of the arrest. We believe 

that the risk of jury confusion was adequately reduced, however, by 
9

1 Marshall’s use of this testimony was not limited to cross2 examining the witnesses, however. In both his opening and 

3 summation, Marshall made references to the grand jury testimony 

4 that were not self-limiting as purely for impeachment purposes. 

5 These references in the summation included the following:

6 Now, if he never saw this object in the 

7 physical possession of Mr. Marshall, why did 

8 he swear under oath to a grand jury that he 

9 did see it? I mean, those two stories aren’t 

10 true; either you saw it, or you didn’t.

11

12 . . . 

13

14 What he told that grand jury is a lie.

15

16 . . . 

17

18 When [Burbridge] appeared before the grand 

19 jury, one story. When he appeared in the 

20 civil lawsuit, another story.

21

22 . . . 

23

24 They duped it and put it over on the grand 

25 jury with these false stories.

26

27 . . .

28

29 You can send a message through your verdict . 

30 . . to any other police officer out there that 

31 thinks it’s okay to get in front of a grand 

32 jury and lie.

33

34 J.A. 1206, 1207, 1210, 1211 (Trial Tr.). 

35 The defendants argue that these comments demonstrate that 

36 plaintiff’s § 1983 claim for malicious prosecution was “based on 

 

the district court’s instructions and the substantial amount of 

evidence supporting Marshall’s direct case independent of the grand 

jury testimony.
10

1 the witness’ testimony [before the grand jury],” Rehberg, 132 S. 

2 Ct. at 1506. This argument is not without some force. Although we 

3 find the question to be close, on balance, we believe that the 

4 district court’s limiting instructions – to the effect that the 

5 jury could not base liability on the grand jury testimony -

6 sufficiently alleviated any prejudice to the point that a new trial 

is not required.

2 7 

8 As we noted earlier, after the closing statements, the 

9 district court instructed the jury that a “defendant cannot be held 

 

2 We note that while the jury was deliberating, Marshall’s counsel 

ascribed two purposes for his references in summation to the 

defendants’ grand jury testimony: “to overcome the presumption [of 

probable cause created by the indictment], one, and two, to address 

the general issues of credibility.” J.A. 1308 (Trial Tr.). In 

Manganiello v. City of New York, 612 F.3d 149 (2d Cir. 2010), we 

stated that

[w]here there is some indication in the police 

records that, as to a fact crucial to the 

existence of probable cause, the arresting 

officers may have ‘lied in order to secure an 

indictment,’ and ‘a jury could reasonably find 

that the indictment was secured through bad 

faith or perjury,’ the presumption of probable 

cause created by the indictment may be 

overcome. 

Id. at 162 (quoting Boyd v. City of New York, 336 F.3d 72, 77 (2d 

Cir. 2003)). 

The district court suggested that Rehberg might cast doubt on 

the continued vitality of Manganiello, but noted that defense 

counsel had not asked for an instruction limiting the grand jury 

references to credibility during his adversary’s summation but that 

had counsel done so, the district court would have given it, see

J.A. 1309 (Trial Tr.). When the court opined that it was now too 

late for the instruction, see id., defense counsel did not take 

issue with that view. Marshall and Burbridge recognize this 

tension in their brief on appeal, but do not advance a completed

argument on this basis, so we do not consider how Rehberg affects 

our holding in Manganiello.
11

1 liable for what he said to the grand jury,” and that “[t]he 

2 opening[s] and closings are not evidence.” Id. at 1218, 1217

3 (Trial Tr.). And, after the jury had begun its deliberations, the 

4 district court told the jury:

5 In going through the transcript this morning, 

6 I noticed that it was suggested that you send 

7 a message. I don’t want you to send any 

8 messages. I just want you to decide the case 

9 in accordance with my instructions[.]

10

11 Id. at 1312 (Trial Tr.). The jury indicated that it understood the 

12 judge’s instruction. Had the defendants so requested, the jury 

13 instructions could have been crafted more specifically to ensure no 

14 violation of Rehberg under any party’s interpretation of the case. 

15 But no such request was made in time for it to impact the jury’s 

16 deliberations. We believe the instructions given adequately 

17 reflected the holding in Rehberg and mitigated the prejudicial 

18 impact of the opening and closing statements to the point that a 

19 new trial is not warranted.

20 2. Speedy Trial Instruction

21 Randall and Burbridge also argue that the jury should have 

22 been instructed that Marshall’s criminal prosecution did not end in 

23 an acquittal. The district court instructed the jury: “There’s no 

24 dispute that criminal proceedings were commenced and continued and 

25 that they ended in plaintiff’s favor.” J.A. 1218 (Trial Tr.). The 

26 parties agree that Marshall’s case was dismissed in light of speedy 

27 trial concerns, but they disagree about whether the nature of the 
12

1 dismissal should have been conveyed to the jury. We review “a 

2 claim of error in the district court’s jury instructions de novo, 

3 and will reverse on this basis only if the [appellants] can show 

4 that in viewing the charge given as a whole, they were prejudiced 

5 by the error.” Anderson v. Branen, 17 F.3d 552, 556 (2d Cir. 

6 1994).

7 The district court’s instruction is not a basis for a new 

8 trial. The malicious prosecution charge provided, in relevant 

9 part, as follows:

10 A person is maliciously prosecuted when, 

11 first, criminal proceedings are initiated or 

12 continued against him by the defendant. Two, 

13 the proceedings are terminated in his favor. 

14 Three, there was no probable cause for the 

15 commencement of the proceeding. And four, the 

16 defendant’s actions leading to the initiation 

17 of proceeding[s] against the plaintiff were 

18 motivated by malice of a defendant.

19

20 There’s no dispute that criminal proceedings 

21 were commenced and continued and that they 

22 ended in plaintiff’s favor.

23

24 J.A. 1218 (Trial Tr.). In context, it is evident that the district 

25 court’s instruction was meant to remove from the jury’s 

26 consideration the second element of the malicious prosecution 

27 claim. Randall and Burbridge do not dispute that Marshall’s 

28 criminal case was dismissed on speedy trial grounds or that such a 

29 dismissal was in Marshall’s favor. An underlying acquittal is not 

30 a necessary prerequisite for a malicious prosecution charge, and 

31 while it is possible that the jury inferred that the case ended in 
13

1 an acquittal, the inference that the case was procedurally 

2 terminated was equally possible. All that is necessary is a 

3 “favorable termination,” which is what occurred here and what the 

4 district court instructed. See Rogers v. City of Amsterdam, 303 

5 F.3d 155, 160 (2d Cir. 2002) (“[U]nder New York law, a dismissal 

6 pursuant to New York Criminal Procedure Law § 30.30 - New York’s 

7 speedy trial statute - constitutes a favorable termination [for 

8 purposes of a malicious prosecution action].”); see also J.A. 115-

9 16 (Crim. Ct. Order) (dismissing Marshall’s case on the basis of 

10 the same statute). The instruction’s reference to the favorable 

11 termination of the prosecution without further elaboration is 

12 therefore not a basis for reversal or a new trial.

13 3. Exclusion of Recognition Evidence

14 Finally, Randall and Burbridge argue that the district court 

15 erred in excluding evidence that Burbridge recognized Marshall on 

16 the night of the arrest from Burbridge’s review of NYPD arrest and 

17 complaint reports. Before trial, the district court excluded the 

18 recognition evidence on the basis that there was “only one issue” 

19 in the case - whether the officers saw Marshall with the gun - and 

20 that it did not “want the case expanded” to include the broader 

21 issue of whether the initial stop was valid. J.A. 875-76 (Hearing 

22 Tr.). The district court’s ruling did not inhibit Marshall’s 

23 counsel from nearly opening the door to the recognition evidence by 

24 intimating that the stop was unlawful, however. For instance:
14

1 Q: Now at some point, Officer Burbridge 

2 suggested that you stop Mr. Marshall, true?

3

4 [Defendants’ Attorney]: Objection. Objection, 

5 Your Honor. That question is the subject of 

6 an in limine ruling.

7

8 The Court: A what?

9

10 [Defendants’ Attorney]: An in limine ruling.

11

12 The Court: Repeat the question, please.

13

14 (Record read back by the reporter.)

15

16 The Court: Overruled.

17

18 Id. at 989 (Trial Tr.). After several similar questions, during a 

19 break without the jury present, defense counsel sought a ruling 

20 that Marshall had opened the door to the reasons for the initial 

21 stop. The district court denied the motion, stating that no door 

22 had been opened and that Marshall had “been referring . . . to the 

23 period from the time the Defendants first observed the Plaintiff 

24 until the arrest.” Id. at 1097 (Trial Tr.).

25 Randall and Burbridge moved unsuccessfully for a mistrial on 

26 the basis that Marshall had opened the door but that they had not 

27 been allowed to present their recognition testimony. They then 

28 asked the district court to give a curative instruction indicating 

29 that the initial stop was not at issue. The district court gave 

30 the curative instruction:

31 The initial stop was lawful. You can assume 

32 that. That’s not the violation that’s claimed 

33 here. The evidence relating to observation 

34 and acts surrounding the stop may be 

35 considered in deciding credibility. So you 
15

1 can consider all of the evidence from the time 

2 they first observed, according to their 

3 evidence, the defendant up to the time when he 

4 was placed under arrest.

5

6 Id. at 1217 (Trial Tr.).

7 The district court’s exclusion of the recognition evidence

8 proffered by the defendants is not a basis for disturbing the 

9 jury’s judgment. We review this evidentiary ruling for abuse of 

10 discretion and will reverse only if the “erroneous ruling affected 

11 a party’s substantial rights.” Marcic, 397 F.3d at 124. On 

12 appeal, Burbridge and Randall argue, as they did at trial, that 

13 Marshall opened the door by intimating the stop was improper and 

14 that they were unduly prejudiced because they were not allowed to 

15 elicit the true basis for the stop – recognition of Marshall from a 

16 review of NYPD arrest and complaint reports. 

17 The district court’s rulings regarding the recognition 

18 evidence were a bit uneven. Although it seemed before trial that 

19 all evidence relating to the initial stop would be excluded, the 

20 district court allowed some evidence about the stop, but not the 

21 recognition evidence sought by the defendants. The district 

22 court’s curative instruction, however, alleviated any confusion on 

23 this score and mitigated any damaging effect of Marshall’s 

24 questioning about the stop. Nor is there any basis to believe that 

25 the jury disregarded the district court’s instruction. See

26 Downing, 297 F.3d at 59. In sum, the district court’s handling of 

27 the recognition evidence issue does not merit a new trial.
16

1 CONCLUSION

2 For the foregoing reasons, the judgment of the district court

3 is AFFIRMED.