NOT RECOMMENDED F OR F ULL-TEXT PUBLICATION F ile Nam e: 12a0595n.06 Nos. 11-3607, 11-3608 UNITED STAT ES COURT OF AP P EALS F OR THE S IXTH CIRCUIT

JASON WES TERFIELD, P laintif f-App ellee,

v. UNITED STAT ES O F AMERICA, e t al., Defendan ts, and LEE LUCAS and CHUCK METCALF , Defendan ts-Appellants. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ON AP P EAL F RO M THE UNITED STAT ES DIS TRICT C O U R T F O R T H E NORTHERN DISTRICT OF OHIO

O P I N I O N

BEFORE: K

EITH , McK

EAGU E and DONALD, Circ uit Jud ges. McK EAGU E, Circuit Judge. This is an appea l from an interlocutory ruling by the district
court deny ing qualified immunit y to two defe ndan t law enfor ceme nt office rs on plaintiff’s claim under 42 U.S.C. § 1983 that they viola t ed h i s co n stitut ional rig ht to a fair trial by wrong fully suppressin g e v id e n c e f

a vorable to him. Def

endants contend the subject evidenc e was not “mater ial” 1

This is a second appea l involving the qualified immunit y defe nse. I n an ear lier ruling , the 1 district court g rante d the defe ndant law enfor ceme nt office rs summary judgme nt based on qualified immunit y . A panel of this Court reve rsed the ruling and rema nded for further proce eding s, finding the district court a

bused its discretion by

improperly

limit ing disc overy

on the qualified immunity question. W

esterfield v. United States , 366 F. App’x 614 (6th Cir. 2010). This appea l addre sses the ruling produce d on rema

nd.Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. and its nondisclosure was not a Brady violation because there is no rea sonable probability that the result of the prosec ution would have been differ ent if the evid en ce h ad been disclosed. On due consideration, we af

firm the ruling of the district cour t. I Plaintiff J ason Westerfield was found g uilty by a jury of possessing cra ck coca ine with intent
to distribute it on J uly 26 , 2006. He was sentenc ed to a prison term of 360 months on Marc h 8, 2007. I n the meantime, Westerfield had pleade d g uilty to be ing a felon in posse ssion of a firea rm, for which he was sentenc ed to a prison term of 180 months on Marc h 6, 2007. The later 360-month
sentenc e was made to run concur rently with the ear lier 180-month sentenc e, which was subsequently reduc ed to 100 months. The g overnme nt’s case ag ainst Westerfield on the c ocaine possession char g e wa s based in part on the testimony of Detec tive Chuck Metca lf of the Richland County Sheriff’ s Offic e. Metca lf testified reg arding the execution of the sear ch war rant that led to discovery and seizure of the coca ine Westerfield was found g uilty of possessing. Metca lf was the only prosec ution witness who testified about the actua l discovery and seizure of the coca ine. That is, without his testimony , the g overnme nt’s case would have suffe red from a critica l de ficienc y . Westerfield does not challeng e the substance of Metca lf’s testimony

. Howeve r, h e co n t en d s the prosec ution failed to disclose information that he could have used to impeach Metca lf’s cre dibilit y . This information consists of Metca lf’s knowledg e, and the knowledg e of his c o-def endant DEA Ag ent L ee L ucas, tha t Metcalf had g iven perjurious testimony ag ainst one of Westerfield’s co-de fenda nts, Dway ne Nabor s, ear lier in the trial. - 2 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. There is no que stion about the falsity of Metca lf’s testimony

ag ainst Nabor s. Nor is the re 2 any dispute, for purposes of deciding the qualified immunit y issue at the summary judgme nt stag e, that both Metca lf and L

ucas w ere awa

re of the fa lsity

of Metca lf’s t estimony

. Fur ther, there is no dispute that the information could have been used by the defe nse for impeachme nt and should have been disc losed by

the prosec ution. At issue is whether suppression of t he im peac hing e vidence is shown to have prejudice d Westerfield’s defe nse. The district court was satisfied that prejudice was sufficie ntly shown by virtue of the g ov er n m en t ’s o wn conce ssion that it had failed to disclose “mater ial impeaching evidenc e” and that Westerfield’s conviction should be vacated. Yet, Metca lf and L ucas maintain that their knowledge of t he falsity of Metcal f’ s t es t i m o ny ag ainst Nabor s had only marg inal i mpeac hing value in Westerfield’s case . Notwithstanding the g overnme nt’s

conce ssion, they insist that their n o n d i sclosure of this information should not be deeme d to undermine c onfidenc e in the jury ’s ver dict that Westerfield wa s g uilty of coc aine possession. II Ordinar ily , denial of a motion for summary judgme nt is an interlocutory ruling , not a “fina l order ,” and is not subject to immediate a ppeal. 28 U.S.C. § 1291; Harrison v. Ash , 539 F.3d 510, 521 (6th Cir. 2008). Yet, an or der de ny ing qua lified immunit y to a public offic ial is imm ediately appea lable pursuant to the “collate ral order ” doctrine. Harrison , 539 F. 3 d at 521; Leary v. Livingston County , 528 F.3d 438, 447 (6th Cir. 2008). This is a narr ow exception. Appellate jurisdiction exis ts “only to the extent that a summary judgme nt order denies qualifi ed immunit y

I n a subsequent criminal prosec ution, Metca lf was char g ed wi t h a criminal civil rig hts 2 violation and ultimately

pleade d g uilty

to presenting

false e vidence ag ainst Nabors a t trial. - 3 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. based on a pure issue of law.” Leary , 528 F.3d 447-48 (quoting Gregory v. City of Louisvill e , 444 F.3d 725, 742 (6th Cir. 2 0 0 6 ))

. We are satisfied that the question here prese nted by defe ndants’

asser tion of the qualified immuni t y d ef en s e at the summary judgme nt stag e, challeng ing the evidentiar y support for a finding that the admittedly suppressed Brady information was “mater ial,” is such a pure issue of law and the district court’s decision is immediately revie wable. See Modowan v. City of W

arren , 578 F.3d 351, 369- 71 (6th Cir. 2009). III Qualified immunit y shields g overnme nt officia ls from liability for civil damag es if their actions did not vio late clea rly established statutory or constitutional rig hts of which a rea sonable person would have known. Pearson v. Callahan , 129 S.Ct

. 808, 815 (2009). Qua lified immunit y ordinarily applies unless it is obvious that no rea sonably competent officia l w ould ha ve conclude d that t h e ac t i o n s t aken wer e unlawful. Ewolski v. City of Brunswick , 287 F.3d 492, 501 (6th Cir. 2002). Qualified immunit y “‘g ives ample room for mistaken judgme nts’ by protec ting ‘all but the plainly incompetent or those who knowing ly violate the law.’” Hunter v. Bryant , 502 U.S. 224, 229 (1991) ( quoting Malley v . Briggs , 475 U.S. 335, 343, 341 (1986)). Plaintiff Westerfield bear s the burden of showing that defe ndants are not entitled to qualified immunit y . Untalan v. C ity of Lorain , 430 F.3d 312, 314 (6th Cir. 2005). Westerfield mu s t s h o w, viewing the evidenc e in the light most favor able to him, both that a constitutional rig ht was violated and that the rig ht was clea rly established at the time of the violation. Scott v. Harris , 550 U.S. 372, 377 (2007). The district court’s de cision is reviewe d de novo. Ewolski , 287 F.3d a t 501.

- 4 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. IV Westerfield contends the prosec ution violated his rig hts under Brady v. Maryland , 373 U.S. 83 (1963), by

failing to disclose its knowle dg e of the falsity of Detec tive Metca lf’s testimony

. He contends the defe nse could have used this information to impeach Metca lf’s cre dibilit y . Metca lf was the only prosec ution witness who testified about the actua l discovery and seizu re o f the coca ine Westerfield was found g uilty of possessing. I f Metca lf had been eff ectively impeache d and the jury had been persua ded to reje ct his testimony in its entirety , then, Westerfield arg ues, the prosec ution’s

case would have suf

fer ed fr om a cr itical defic iency

. I n Beuk e v. Houk , 537 F.3d 618, 633 (6th Cir. 2008), we summarized the require m en ts of Brady as follows: Brady require s the prosecution to disclos e ex cu l patory and im peac hment evidenc e that is “mater ial either to g uilt or to punishment.” Strickler v. Gree ne , 527 U.S. 263, 280 (1999) (quoting Brady , 373 U.S. at 87). “The evidenc e is materia l only if there is a rea sonable proba

bility that, had the evidenc e bee n disclosed to the def ense, the result o f t h e p roceeding would have been differ ent.” United States v. Bagley , 473 U.S. 667, 682 (1985). A Brady violation has three elements: (1) the evidenc e “must be favor able to the accu s ed , ei t h er beca use it is exculpatory , or beca use it is impeaching ”; (2) the “evide nce must have been suppressed by the state, either willfully or ina dverte ntly ”; and (3) “pre judice must have ensued.” Strickler, 527 U.S. at 281-82. I n deter mining whe ther “ withheld information was ma terial a nd there fore prejudicia l,” we consider it “in light of the evidenc e available for trial that supports [W esterf ield’s] conviction.” Jells

v. Mitchell , 538 F.3d 478, 502 (6th Cir. 2008). “[E] vidence is ‘mater ial’ within the meaning of Brady when there is a rea sonable probability that, had the evidenc e been disclosed, the result of the proce eding would have been differ ent.” Cone v. Bell , 129 S.Ct

. 1769, 1783 (2009). “[A] showing

- 5 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. of materia lity does not require demonstration by a preponde ranc e that disclosure of the suppressed eviden ce wo uld have resulted ult imately in [W esterf ield’s] acquittal.” Kyles v. W hitley , 514 U.S. 419, 434 (1995). Favorable evidenc e is materi al i f i t “could reasona bly be taken to put the whole

case in such a differ ent l ight as to undermine confidenc e in the verdict.” Cone , 129 S.Ct

. at 1783 (quoting Kyles , 514 U.S. at 435). Ultimately , the question is whether in the absenc e of the suppressed evidenc e, Westerfield rec eived “a fair trial, understood as a trial result i n g i n a verdic t worthy of confidence .” Montgomery v. Bobby , 654 F.3d 668, 679 (6th Cir. 2011) (quoting Kyles , 514 U.S. at 434). I t is undisputed that these Brady requir ements apply with equal forc e to individual law enforceme nt office rs as well as to the prosec utor’s office and that the rig hts and responsibi l i t i es

rec og nized in Brady and its prog eny wer e clea rly established at the time of Westerfield’s trial. See Elkins v. Summit County, Ohio , 615 F.3d 671, 676 (6th Cir. 2010); Moldowan , 578 F.3d at 379-83. V The district court relied heavily o n t h e governme nt’s conce ssion in deter mining that the information wrong fully suppressed by Metca lf and L ucas was “mater ial.” I ndeed, the words of the Assistant U.S. Attorney

on behalf of the g overnme nt are telling: Given t hat M etca lf, clea

rly a member of t he prosecution team here, did not disclose his false testimony to the prosec ution or the defe nse during the Nabor s trial, the g overnme nt c oncede s that it f ailed to disc lose materia l impea ching information to the defe nse. Metca lf was a materia l witness in the W esterf ield prosec ution, and was the only witness to testify at trial about the finding of the box that contained the cra ck coca ine for wh i ch Westerfield was convicted by the jury

. Since the g overnme nt did n o t d i s cl ose that Metca lf had committed perjury , even though the g overnme nt was unawa

re of that fac t at the time, and Westerf ield was unable to

- 6 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. impeach Metca lf’s testimony with that perjury , the g overnme nt ag ree s that Westerfield is entitled to a new trial. The g overnme nt has examined the state of the evidenc e for purposes o f a retria l in this case and believes that it cannot prevai l under the proof bey ond a rea sonable do u bt standard. I n considering all of the available evidenc e and witnesses, and beca

use the g overn m en t respe ctfully declines to call a convicted perjure r to the stand to testify at a retria l, the g overnme nt a sks this Court to dismiss this case, No. 1:05CR537. R. 1 2 5-12, Gover

nment’s Response to Petitioner’s Motion to Vac ate Co n v ic ti o n a n d Se n te n c e a t 3

- 4

. Thus, the attorne y

for the prosecution—the one most familiar with the nature and st reng th of the g overnme nt’s proofs ag ainst Westerfield, the one whose duty it was to obtain a conviction if there was sufficie nt evidenc e of g uilt—ex presse d the g overnmen t ’s view, when the falsity of Metca lf’s testimony was reve aled, t h at confide nce in the Westerfield verdic t had been fata lly undermined. That is, if the falsity of Metca lf’s testimony ag ainst Nabor s had been timely disclosed, and Westerfield had been able to use it to impeach Metca lf such that the jury was persua ded to reje ct Metca lf’s t estimony in its entirety , then t he prosecut ion’s case would have lacked evidence of t he discovery and seizure of the actua l coca ine, evidenc e nece ssary to satisfy an essential element of the char g ed offe nse. Moreove r, the g overnme nt was not only unwilling to rely on Metca lf’s testimony in a future prosec ution, but also conce ded that it lacke d the wher ewithal, among the other available witnesses and evidenc e, to repla ce Metca lf’s test i m ony . The g overnme nt there fore consente d to

vacating Westerfield’s coca ine possession conviction and, bey ond that, reque sted outrig ht dismiss al of the c harg e. Def endants Metca lf and L ucas criticize the district court’s ruling for its over- relianc e on the g overnme nt’s po s i t i o n in assessing the materia lity of the suppressed information, but we find no - 7 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al.

err or. Def

endants fail to identi fy an y o t h er witness or evidenc e that could repla ce Metca lf’s testimony in proving the coca ine pos session char g e. They fail t o explain why , if the gover nment,

on consideration of “all of the available evidenc e and witnesses,” lacks confide nce in the sufficie ncy of the evidenc e to convict Westerfield, an objective and impartial juror could not r easona bly rea ch the same conclusion. Ba sed on the exis ting rec ord, we cannot say with confide nce that Westerfield

rec eived a

fair tr ial in the absenc e of the s uppresse d evidenc e. We there fore concur in the district court’s assessment, at this stag e of the proce eding s, that Westerfield has made a sufficie nt showing of the materia lity of the suppressed information. Fur ther, beca use defe ndants’ failure to disclose the falsity of Metca lf’s testimony was not the product of an innocent mistake of judgme nt but a knowing violation of their Brady obliga tion, defenda nts are not e ntitled to qualified immuni ty

. VI Defen d an t s contend, howeve r, that Westerfield has failed to show he was injured by their Brady violation. Be cause the sentenc e imposed for the since-va cate d coca ine possession conviction

was made to run concur

rently with the sentenc e imposed for the still valid felon-in- possessio n offe ns e, d ef

en d an t s arg ue that Westerfield was not subjected to even a single day of wrong ful incar cer ation as a result of their unlawfu l co n d u ct. The district court summarily reje cted the arg ument, observing that wrong fu l i mprisonment is not prer equisite to maintaining a civil rig hts claim for de nial of a f

air trial. Ag ain, we ag ree with the district court. The fac t that Westerfield has not suffe red wrong ful imprisonment does not nece ssarily prec lude a showing that defe ndants’ suppression of B r ady materia l resulted in a denial of Westerfield’s constitutional rig ht to a fair t ri al co m p en s able in - 8 -Nos. 11-3607, 11-3608

W esterfield v. United States, e t al. damag es under 42 U.S.C. § 198 3 for such injury as he is able to prove—e .g ., impairment of reputa tion, personal humiliation, mental ang uish and emotional distress, and including potentially punitive damag es. See Mem phis Community Sch. Dist. v. Stachura , 477 U.S. 299, 306-07 (1986); B aumgardner v. Sec’

y, U.S. Dep’ t of Housing and Urban Dev

. , 960 F.2d 572, 581-83 (6th Cir

. 1992). VII For the above rea sons, the district court’s ruling , deny ing qualified immunit y to defe ndants Metca lf and L

ucas, is AF F IRMED

.

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