Wilkins v. DeReyes

• Citation: 528 F.3d 790
• Decision Date: 13 June 2008
• Docket Number: No. 06-2260.,No. 06-2245.,06-2245.,06-2260.
• Parties: Shaun WILKINS and Roy Buchner, Plaintiffs-Appellees, v. Juan DeREYES, Frank Jacoby, and Michael Fenner, Defendants-Appellants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

528 F.3d 790

Shaun WILKINS and Roy Buchner, Plaintiffs-Appellees, v. Juan DeREYES, Frank Jacoby, and Michael Fenner, Defendants-Appellants.

No. 06-2245.

No. 06-2260.

United States Court of Appeals, Tenth Circuit.

June 13, 2008.

Sheldon Nahmod, Professor of Law, Chicago, Illinois (assisted on the briefs by Stephen G. French and Robert W. Becker, French & Associates, P.C., Albuquerque, NM, for Appellants Jacoby and Fenner in 06-2245, and Emily A. Franke and W. Ann Maggiore, Butt, Thornton & Baehr, P.C., Albuquerque, NM, for Appellant DeReyes in 06-2260), for Defendants-Appellants.

Ray Twohig, Albuquerque, NM, for Plaintiffs-Appellees.

Before TACHA, McKAY, and TYMKOVICH, Circuit Judges.

TYMKOVICH, Circuit Judge.

Shaun Wilkins and Roy Buchner became suspects in the 1996 investigation of a quadruple murder at a cabin in the wilderness outside of Torreon, New Mexico. Sergeant Frank Jacoby and Captain Michael Fenner, officers with the New Mexico State Police, and Detective Juan DeReyes, an officer with the Albuquerque Police Department Gang Unit, investigated the crime. As a result of the officers' investigation, Wilkins and Buchner were arrested and twice unsuccessfully prosecuted for the crimes.

In this § 1983 malicious prosecution case, Wilkins and Buchner allege the officers violated their constitutional rights by basing their arrests, and causing subsequent prosecutions, solely on false statements wrongfully coerced from fellow gang members. Concluding that factual questions exist regarding whether the officers fabricated evidence and then relied on it in arresting Plaintiffs as well as causing their prosecutions, we AFFIRM the district court's denial of qualified immunity to the officers on the malicious prosecution claim.

I. Factual Background

Viewed in the light most favorable to Plaintiffs, see Clanton v. Cooper, 129 F.3d 1147, 1153 (10th Cir.1997), the facts as alleged establish the following.

Murders Connected to Gang Activity

On April 14, 1996, Ben Anaya, Sr. discovered at his cabin the dead bodies of his son Ben Anaya, Jr., his son's girlfriend Cassandra Sedillo, and Sedillo's two children Matthew and Johnny Garcia, ages two and three. The adults had been shot, and the children then starved to death after being locked in the cabin alone. The resulting investigation revealed the murders had taken place between December 12 and December 18, 1995.

Anaya, Jr. had been a member of the 18th Street Gang. The officers, experienced with Albuquerque gang activity, were part of a multi-unit task force investigating the murders. Their suspicion focused on Anaya's fellow gang members. In the course of their investigation, the officers brought in for questioning gang members Shawn Popeleski, Lawrence Nieto, and Plaintiffs, among others.

Initial Interviews

During initial interviews in April 1996, Popeleski and Nieto denied knowing who committed the murders. Disbelieving their stories, the officers brought the suspects in for further interviews. The officers pushed hard for Nieto and Popeleski to implicate Wilkins and Buchner in the quadruple homicide. DeReyes in particular had a personal interest in proving Wilkins committed the crime because "Wilkins had done a drive by shooting on his (DeReyes') house, ... and his family was threatened by that and had to move." App.1920. As a result of these interviews, both Nieto and Popeleski eventually implicated Plaintiffs. It is from these interrogations that the claim of fabricated and coerced testimony arises.

Coercive Interrogations and Fabricated Evidence

Plaintiffs contend the officers fabricated evidence by intentionally extracting matching false statements regarding Nieto's and Popeleski's knowledge of the murders and then used the statements as the sole basis for Plaintiffs' subsequent arrest and trial. They claim the officers, using threats and promises, took advantage of Nieto's and Popeleski's age (18) and Nieto's learning disabilities to persuade them to implicate Wilkins and Buchner. The officers threatened them and their families with harm, promising leniency and protection if they cooperated.

Based on these threats and promises, a series of interrogations in May 1996 yielded nearly identical statements from Nieto and Popeleski, both implicating Plaintiffs Wilkins and Buchner in the quadruple homicide.

(1) The first interrogation of Popeleski took place on May 10, 1996. Although coerced, Popeleski did not provide any useful information that day. But the very next day—and allegedly as a result of May 10 coercion—he quickly implicated Wilkins. He told the officers that Wilkins and Nieto arrived at the cabin and partied with Anaya, Sedillo, and Popeleski on the afternoon of the murders. After Wilkins and Nieto had apparently left and Anaya and Sedillo had gone to bed, Popeleski was outside when two men in ski masks surprised him. One of them held Popeleski on the ground while the other, whom Popeleski recognized as Wilkins, went into the cabin.¹ Popeleski heard gunshots, footsteps, and the front door being locked. He saw the two men run back toward a car that looked like the one Wilkins and Nieto had arrived in earlier. Popeleski tried to chase them in Anaya's jeep but lost them when the jeep stalled.

(2) After the Popeleski interviews, the officers reinterviewed Nieto on May 11, 1996, and coerced a false statement blaming Wilkins for the murders. According to police affidavits, Nieto confessed that when Wilkins visited him shortly after the murders appeared on the news, Wilkins told him he had done "some s* * *" at the cabin. Nieto did not supply any additional details. An arrest warrant was issued for Wilkins based on this information.

(3) The officers interviewed Nieto again on May 13, 1996. Unlike his May 11 interrogation, during which Nieto placed suspicion on Wilkins simply by relaying to the officers Wilkins's statement of doing "some s* * *" at the cabin, the May 13 interview produced a more detailed account. According to Nieto's affidavit, "a lot more interrogation took place outside of that which was videotaped" on May 13. App. 1920.

The officers allegedly forced Nieto to corroborate the story Popeleski had told them earlier, blaming both Wilkins and Buchner for the murders (although Popeleski had not yet actually mentioned Buchner). Id. ("I [Nieto] didn't think I had any choice except to go along with the story [the officers] said they knew and said Popeleski had told. They went over it in detail, then talked to me on the videotape, then went over it again, then talked to me again on the videotape. They put words in my mouth. They supplied the details of the story, then when I told them something, they pressured me to change it."). In the end, Nieto gave two statements, each differing in the details but both implicating Wilkins and Buchner, whom Nieto placed at the cabin with Wilkins. Buchner was arrested for the murders on May 13.

(4) On May 15, 1996, Nieto was interviewed by Agent Lucero of the New Mexico state police, who is not a defendant in this case. Plaintiffs do not contend Lucero used any coercive tactics in this interview, although they claim the statements resulted from the earlier coercive interrogations. Moreover, according to Nieto's affidavit, right before his May 15 interview the officers "coached [Nieto] to change the [May 13] story.... [He] went along with that because they pressured [him] to do so." Id. at 1921.

In the interview, Nieto told Agent Lucero that Wilkins and Buchner came to his home and asked him to go to the cabin with them to party. Wilkins had a .22 caliber pistol lying on his lap, and on the way to the cabin Wilkins and Buchner told Nieto they were going to kill Popeleski. After spending time at the cabin, Wilkins, Buchner, and Nieto left the cabin, walked back to their car, and donned ski masks and gloves. Nieto had a shot gun, Wilkins the pistol, and Buchner a rifle. After waiting some time, the three went back to the cabin. They saw Popeleski outside, and Wilkins told Nieto to get him. Nieto surprised Popeleski and told him to get on the ground while Wilkins and Buchner entered the cabin. When Nieto heard shots inside, he fired a shot into the air, and Popeleski ran. Wilkins and Buchner were carrying drugs and guns from the cabin and Nieto joined them as they returned to the car. Buchner went back to the cabin to lock the front door, and the three left the area together.

(5) The officers, at that point, had detailed statements from both Nieto and Popeleski, implicating Wilkins in the murders. One major difference remained, however, in that Popeleski's account deviated from Nieto's by omitting Buchner's participation. The officers went back to Popeleski to try and reconcile the two versions of what they wanted to be the same story. When Popeleski was reinterviewed on May 15, 1996, he said he had not mentioned Buchner's presence at the cabin previously because Buchner was from Corrales, and Popeleski had a friend in Corrales he was trying to protect from Buchner. The two accounts were now nearly identical in all relevant respects.

In summary, Plaintiffs contend the officers fabricated evidence by coercing Nieto and Popeleski into giving matching false statements, implicating both Wilkins and Buchner in the quadruple homicide.

Criminal Prosecutions and Mistrials

As a result of the investigation, Buchner and Wilkins were arrested and charged with capital murder. At Buchner's preliminary hearing on May 26, 1996, and at Wilkins's preliminary hearing on July 29, 1996, the prosecution called Popeleski to testify. He testified consistent with his May 11 and 15 statements. Nieto refused to testify on both occasions and was declared unavailable. Agent Lucero instead testified as to Nieto's May 15 statement.

Wilkins went to trial on September 22, 1997, and Buchner went to trial on November 3, 1997. Nieto and Popeleski both refused to testify at Wilkins's trial, but their prior statements were...