707 F.3d 28 (1st Cir. 2013), 11-1304, Drumgold v. Callahan

Docket Nº:11-1304, 11-2016, 12-1052.
Citation:707 F.3d 28
Opinion Judge:LIPEZ, Circuit Judge.
Party Name:Shawn DRUMGOLD, Plaintiff, Appellee, v. Timothy CALLAHAN, Defendant, Appellant, Francis M. Roache; Paul Murphy; Patricia A. Murphy, as Executrix of the Estate of Paul Murphy; Richard Walsh; City of Boston, Defendants.
Attorney:Joseph L. Tehan, Jr., with whom Jackie Cowin, Gregg J. Corbo, and Janelle M. Austin were on brief, for appellant. Michael W. Reilly, with whom Rosemary Curran Scapicchio was on brief, for appellee.
Judge Panel:Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges. LYNCH, Chief Judge, concurring in part, dissenting in part, and dissenting in the judgment.
Case Date:January 31, 2013
Court:United States Courts of Appeals, Court of Appeals for the First Circuit

Page 28

707 F.3d 28 (1st Cir. 2013)

Shawn DRUMGOLD, Plaintiff, Appellee,


Timothy CALLAHAN, Defendant, Appellant,

Francis M. Roache; Paul Murphy; Patricia A. Murphy, as Executrix of the Estate of Paul Murphy; Richard Walsh; City of Boston, Defendants.

Nos. 11-1304, 11-2016, 12-1052.

United States Court of Appeals, First Circuit.

January 31, 2013

Page 29

[Copyrighted Material Omitted]

Page 30

[Copyrighted Material Omitted]

Page 31

[Copyrighted Material Omitted]

Page 32

Joseph L. Tehan, Jr., with whom Jackie Cowin, Gregg J. Corbo, and Janelle M. Austin were on brief, for appellant.

Michael W. Reilly, with whom Rosemary Curran Scapicchio was on brief, for appellee.

Before LYNCH, Chief Judge, LIPEZ and THOMPSON, Circuit Judges.

LIPEZ, Circuit Judge.

In the summer of 1988, twelve-year-old Darlene Tiffany Moore was killed by a stray bullet during a gang-related shooting in Boston. Appellant Shawn Drumgold was tried and convicted of Moore's murder in Massachusetts state court in the fall of 1989. After serving fourteen years of his life sentence, Drumgold moved for a new trial on the ground that exculpatory evidence had been withheld by several Boston police officers involved in his prosecution, including appellee Timothy Callahan, a homicide detective. Drumgold's motion was granted, the district attorney's office declined to prosecute him again, and he was released from prison in 2003.

Shortly after his release, Drumgold filed a civil action in federal district court pursuant to 42 U.S.C. § 1983 against Callahan, Boston police commissioner Francis Roache, police officers Paul Murphy and Richard Walsh, and the City of Boston. Drumgold alleged that his constitutional due process rights were violated by the withholding of material exculpatory evidence during his criminal trial, in contravention of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). In 2008, a jury determined that Callahan had withheld some evidence but deadlocked on whether his failure to disclose that evidence had caused Drumgold's conviction.1 As a result, a mistrial was declared and a retrial held in 2009. The retrial jury also found that Callahan had withheld evidence and determined that his actions had caused Drumgold's conviction. Drumgold was awarded damages of $14

Page 33

million— $1 million for each year he spent in prison.

On appeal, Callahan argues that he is entitled to judgment as a matter of law on three different grounds, namely, that the withheld evidence is not material within the meaning of Brady, that he is entitled to qualified immunity for his actions, and that the scope of the retrial was too broad. After careful consideration, we reject these arguments. However, we agree with Callahan's alternative claim that he is entitled to a new trial because the district court judge erred in instructing the retrial jury on causation. Accordingly, we remand this case to the district court for a new trial.


A. The 1989 Criminal Trial

On August 19, 1988, Moore was shot and killed by two masked men while sitting on a mailbox in front of her mother's home in Boston. Ten days later, city police officers arrested Drumgold and his friend Terrance Taylor. They were charged with first-degree murder and brought to trial in Massachusetts state court in the fall of 1989. Phil Beauchesne, an assistant district attorney, led their prosecution. The prosecution's theory of the case, laid out in Beauchesne's opening statement, was that the bullet that killed Moore was intended for Chris Chaney, a gang member who was standing nearby. Chaney was thought to be responsible, along with a man named Mervin Reese, for the shooting of Romero Holliday, a rival gang member whom the prosecution believed to be an associate of Drumgold's.

At trial, Beauchesne called a series of witnesses who tied Drumgold, and in some instances Taylor, to Moore's murder. One of these witnesses (and the focus of this appeal) was Ricky Evans.2 Evans testified that he saw Drumgold and Taylor carrying guns shortly before Moore was killed, about two blocks from the murder scene. According to Evans, Taylor told Drumgold at that time that he knew where they could find Chaney and Reese, Holliday's supposed assailants. The next time Evans encountered Drumgold and Taylor, approximately an hour after the shooting, they were no longer armed and Drumgold appeared nervous. Evans heard Taylor say that their guns were " hot" and had been " stashed" in a safe location.

Evans was impeached with his past criminal activity and other bad acts, as well as with evidence that police officers investigating Moore's murder helped him clear up some outstanding warrants. Taylor's counsel also noted that it took Evans ten months to come forward with information regarding Moore's death and probed his motivation for testifying. Evans explained that he " didn't want to get involved" at first but later changed his mind: " I just felt like [Moore's mother] lost her daughter so why not go and tell the truth when you can.... I got a daughter myself and I wouldn't want her to be sitting on the mailbox and get shot."

After the prosecution rested, the state court dismissed the charges against Taylor, finding insufficient evidence to permit a reasonable jury to convict him. Drumgold then testified in his own defense, denying any part in Moore's death. Drumgold offered an alibi, corroborated by his friend Paul Durand as well as by Taylor, that he was drinking wine coolers with Durand outside Taylor's girlfriend's house at the time of the shooting and only later ended up near the murder scene, which was half a block from where his girlfriend and daughter lived. Drumgold also presented

Page 34

third-party culprit evidence suggesting that Moore was killed by two prominent members of Holliday's gang, Theron Davis and London Williams, in a failed attempt to take revenge on Chaney for the attack on Holliday, as well as for an incident in which Chaney stabbed Davis in the hand a month before Moore's death. There was a stipulation at trial that, on the day of Moore's murder, a car dealership loaned Williams a white Suzuki jeep— the exact type of vehicle that witnesses said the shooters were driving. One witness testified that Davis and Williams drove past Chaney in the same type of vehicle half an hour before Moore was shot, calling out from the car, " we'll be back." A few hours later, Davis was stopped in a white Suzuki jeep by a Boston police officer.

Once Drumgold concluded his defense, the charges against him went to the jury, which returned a guilty verdict on October 13, 1989, after deliberating less than one full day. Drumgold was sentenced to life in prison.

B. The 2008 Civil Trial

In 2003, fourteen years after his conviction, Drumgold moved for a new trial in Massachusetts state court on the basis that exculpatory evidence casting doubt on the testimony of several prosecution witnesses was not disclosed to him during his 1989 criminal trial. Drumgold's motion was granted, and he was released from prison after the district attorney's office entered a nolle prosequi, indicating that it was abandoning his prosecution. Drumgold then filed a civil suit in federal district court under 42 U.S.C. § 1983, alleging, as relevant to this appeal, that Callahan violated his constitutional due process rights by withholding evidence that would have discredited Ricky Evans.3 Drumgold's civil claims against Callahan went to trial in the spring of 2008.

At the civil trial, Evans testified on Drumgold's behalf that he had perjured himself during the 1989 criminal trial in order to please Callahan. 4 Evans explained that he first met Callahan in December 1988, when Callahan was investigating the execution-style murder of Evans's cousin by a person named Treas Carter (" the Treas Carter case" ). By the time Callahan was assigned to Drumgold's case, about six months later, the two men had become " close like friends." Evans had also learned that he could profit by aiding Callahan's investigations: " [I]t was like if I told him what he wanted to hear, I could get what I wanted, and I started getting what I wanted so I started giving him what he wanted to hear."

During one conversation about the Treas Carter case, Callahan asked Evans if he had any information regarding Moore's death. When Evans indicated that he did, Callahan produced a picture of Drumgold and said, " [t]his is the guy here." According to Evans, there was no convincing Callahan that Drumgold was not the culprit:

I knew it wasn't Shawn that had did the shooting that night, you know, because everybody in the neighborhood said it was [Theron Davis]. But it was like [Callahan] wouldn't take, you know, " no"

Page 35

for an answer that it was not Shawn. You know, he wouldn't take it. Like, after, you know, when I tell him [Davis] did it, it was like I was just pointing at a blank picture.

Some time after this initial discussion— Evans could not remember exactly when, except that it was on " a summer night" in 1989— Callahan arranged for Evans, who was homeless, to stay at a Howard Johnson hotel in Boston. Evans claimed that, during the lead-up to Drumgold's criminal trial, he and Callahan met on several occasions at the hotel restaurant, where Callahan prepared him to testify for the prosecution by feeding him facts that implicated Drumgold in the shooting. In the eight months that Evans recalled boarding at the hotel, he never paid a bill, he was permitted to come and go as he liked, and he was able to charge meals at the hotel restaurant to his room. No one monitored his visitors or kept track of his whereabouts. In addition, Evans testified that, while he was at the hotel, Callahan provided him with money upon request: "...

To continue reading