Drumgold v. Callahan

United States Court of Appeals
For the First Circuit

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

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.

APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Nancy Gertner, U.S. District Judge]

Before

Lynch, Chief Judge,
Lipez and Thompson, Circuit Judges.

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.

January 31, 2013
 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 (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

1
Drumgold's claims against Murphy were dismissed prior to
trial. The claims against Roache and the City of Boston remain
pending in the district court. The claims against Walsh went to
trial together with those against Callahan, but the jury found that
Walsh was not liable. Only Drumgold's claims against Callahan are

-2-
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 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.

I.

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

relevant for the purposes of this appeal.

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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

2
We summarize the testimony of other prosecution witnesses
below.

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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

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

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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.

3
Drumgold also alleged that Callahan withheld evidence
regarding two other prosecution witnesses, Mary Alexander and Tracy
Peaks. Those allegations were rejected by the jury in the 2008
civil trial and are not pertinent to this appeal.

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 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" for an answer
that it was not Shawn. You know, he wouldn't
take it. Like, after, you know, when I tell

4
There is no indication in the record that Evans was ever
criminally charged with perjury.

-7-
 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: "If I needed, like, say if I needed money

or something, I would just give him a call, I'd call him, and, you

know, he'd like, drop me off $30, $40, $50."

These benefits were of great value to Evans in his

impoverished state:

I was living in a hotel I could bring anybody
that I wanted to, I mean, I could feed them,
my whole family. It was a big deal to me. I
was moved off the street into a hotel. I
didn't have to worry about nothing. I needed
money, I gave them a call . . . . I didn't
have anything to worry about, take me off the
street and put me in like a five star. See, I
was wearing the same clothes every day that

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 week, then I get Detective Callahan . . . I
didn't have to worry about it no more, so I
told them what they wanted to hear.

None of these benefits were disclosed to Drumgold prior to or

during his criminal trial.

Callahan disputed the main thrust of Evans's testimony.

He denied feeding Evans any information about Moore's murder or

inducing Evans to testify in any particular fashion during the 1989

criminal trial. Callahan testified that he placed Evans in the

hotel only a few weeks before the criminal trial -- on September

12, 1989 -- and that he did so out of concern for Evans's safety as

a cooperating witness in Drumgold's case, as well as in the Treas

Carter case. He also said that he only gave Evans money ($20) on

one occasion, because Evans was hungry and had no means to purchase

food. Callahan acknowledged that there was no contemporaneous

written documentation of either benefit, although he was "sure" he

reported to Beauchesne that he had "placed [Evans] in a hotel." He

also recalled disclosing Evans's accommodations to the prosecutor

assigned to the Treas Carter case, Paul Connolly, who worked down

the hall from Beauchesne. A January 1990 memorandum to a witness

advocate from Connolly stated: "[Y]ou will remember that our

witness Ricky Evans was in need of housing" and "we had in effect

relocated him to a hotel." However, neither Beauchesne nor

Connolly had any memory of discussing Evans's hotel accommodations

with Callahan.

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 To help the jury understand the role Evans played in the

1989 criminal trial, transcripts of that proceeding were read aloud

during the 2008 civil trial and admitted into evidence as exhibits.

Against this backdrop, the district judge sent the case to the jury

in two phases. In the first phase, the jury was directed to

complete a special verdict form that, in pertinent part, included

the following two questions:

(1) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan violated his right
to a fair trial by withholding exculpatory
evidence from prosecutors, manufacturing
evidence, and/or obtaining false statements
regarding Ricky Evans being housed at a hotel
and provided with meals?

(2) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan violated his right
to a fair trial by withholding exculpatory
evidence from prosecutors, manufacturing
evidence, and/or obtaining false statements
regarding Ricky Evans being given substantial
amounts of money?

The jury answered "no" to the first question and "yes" to the

second. Apprehending the inherent ambiguity in the phrase

"substantial amounts of money," the district judge proposed to ask

the jury to clarify its response to the second question. When both

parties objected, the judge did not seek the clarification.

Proceeding to the second phase, the judge instructed the

jury to consider whether Callahan's withholding of evidence

concerning the provision of money to Evans had caused Drumgold's

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conviction and, if so, the amount of damages due to Drumgold. The

parties presented additional evidence and delivered closing

arguments as to causation and damages. After a week of

deliberations, the jury reported that it could not agree on the

causation question, and the judge declared a mistrial.

Immediately following the declaration of a mistrial,

Callahan requested the entry of a final judgment on all issues

decided by the jury in his favor. The judge said that Callahan's

request seemed appropriate:

Entry of judgment would make sense with
respect to . . . the issues that were finally
decided by the jury on Officer Callahan. . . .
In other words, when the jury said no
liability for Officer Callahan with respect to
. . . all aspects of Ricky Evans except for
the money, that judgment it seems to me, can
enter.

She then addressed the scope of a possible retrial:

If there would be a retrial . . . I'm not sure
that it would be possible to separate out as a
matter of fact the issues about the hotel, et
cetera, from the issues of money so that a
retrial on Officer Callahan I think would
cover the entire story, but the only question
that that jury would be asked is about the
money.

The judge elaborated:

[E]ven the finding of liability for Officer
Callahan on the money would . . . be up in the
air because the jury -- that wasn't a complete
verdict, there had to have been a verdict of
that finding plus proximate cause, so that's
not a complete verdict, and judgment should
not be entered one way or the other with
respect to that.

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 However, when it later became clear that a retrial would

take place, the judge declined to enter judgment in Callahan's

favor on any issues relating to Evans that were decided in the 2008

trial. She ruled that the retrial would not be limited to the

causation question on which the first jury hung, but also would

revisit the antecedent question of whether Callahan withheld

evidence that he gave Evans money, as well as the question of

whether he withheld evidence that he housed Evans at a hotel.

C. The 2009 Retrial

The retrial was held in September 2009. Much of the

evidence mirrored the evidence in the 2008 civil trial, including

transcripts from the 1989 criminal trial. Evans repeated his prior

testimony that he perjured himself during the criminal trial in

order to curry favor with Callahan, that Callahan fed him

information implicating Drumgold in Moore's murder, and that

Callahan housed him for eight months at a Howard Johnson hotel and

gave him money "whenever [he] needed it." Evans also testified

that he informed Callahan that "everybody in the neighborhood"

believed Theron Davis had killed Moore, but Callahan was "possessed

with Shawn Drumgold": "[T]he only person that he wanted to hear

about was Mr. Drumgold. He didn't want . . . to hear anything

about [Davis], he wanted to finger Shawn."

Callahan again denied having fed Evans any information or

provided any inducements to him. He testified that he placed Evans

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in the hotel only a few weeks before the criminal trial and that he

did so in order to "guarantee not only his safety but his

attendance before the court." Callahan also testified that he

disclosed Evans's accommodations to Beauchesne and to Connolly,

although he did not document that benefit in a written report. He

added that the only occasion on which he gave Evans money (again,

$20) was when he first took Evans to the hotel, because Evans had

not eaten that day. The attorney who had represented Drumgold at

his criminal trial testified that, even if he had known Callahan

gave Evans $20 for food, "that . . . probably would not have been

an area that [he] would have gone into" in cross-examining Evans.

The judge again sent the case to the jury in two phases.

The special verdict form used in the first phase included the

following questions:

(1) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan intentionally or
recklessly withheld exculpatory evidence from
prosecutors regarding Ricky Evans being housed
at a hotel and provided with meals?

(2) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that
Defendant Timothy Callahan intentionally or
recklessly withheld exculpatory evidence from
prosecutors regarding money given to Ricky
Evans?

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The jury answered "yes" to both questions.5 As a follow-up to the

second question, the special verdict form directed the jury to

determine the amount of money Callahan gave Evans. The two choices

were "$20" and "more than $20." The jury marked "$20." The

special verdict form then put these questions to the jury:

(3) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that the
evidence withheld by Defendant Callahan was
material?

(4) Has the Plaintiff, Shawn Drumgold, proven
by a preponderance of the evidence that the
evidence withheld by Defendant Callahan was a
legal cause of Mr. Drumgold's conviction?

The jury answered "yes" to both questions, finding Callahan to be

liable. That finding concluded the first phase of the retrial. In

the second phase, the jury awarded Drumgold $14 million in damages.

This appeal followed. Because there was no "final

decision" that could be appealed after the 2008 trial, 28 U.S.C.

§ 1291; see also Baetjer v. Garzot Fernandez, 329 F.2d 798, 799

(1st Cir. 1964) (per curiam), we discuss Callahan's claim that

there never should have been a 2009 retrial, as well as his claims

relating to the 2009 retrial.

II.

We first address the three issues that Callahan claims

would entitle him to judgment as a matter of law. After rejecting

5
The jury was also asked whether Drumgold had proven that
Callahan intentionally or recklessly obtained false statements or
manufactured evidence. The jury answered "no" to that question.

-14-
Callahan's arguments on these issues, we proceed to his alternative

assertion that he is entitled to a new trial because the causation

instruction given to the retrial jury was erroneous. Since we

agree with Callahan on that claim, we do not consider his other

arguments for a new trial or further proceedings.6

A. The Materiality of the Withheld Evidence

Callahan argues that none of the evidence he was found to

have withheld during Drumgold's criminal trial is material within

the meaning of Brady. We provide an overview of Brady before

turning to the merits of this issue.

1. Brady

Brady was an "extension" of a line of cases beginning

with Mooney v. Holohan, 294 U.S. 103 (1935), and Pyle v. Kansas,

317 U.S. 213 (1942), in which the Supreme Court held that a state

actor violates a criminal defendant's due process rights by the

knowing use of perjured testimony or the deliberate suppression of

evidence leading to the defendant's conviction. 373 U.S. at 86;

see also Kyles v. Whitely, 514 U.S. 419, 432 (1995) (noting that

Brady "can trace its origins to early 20th-century strictures

against misrepresentation"). The duty that these cases established

6
Callahan's other arguments are that the judge erred in
excluding from the 2009 retrial a package of forty-five
investigative reports, instructing the retrial jury on the extent
of damages for which he could be held liable, failing to remit a
portion of the damages award, and awarding excessive attorneys'
fees.

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has always applied equally to prosecutors and law enforcement

officers. See Haley v. City of Boston, 657 F.3d 39, 50 (1st Cir.

2011); Limone v. Condon, 372 F.3d 39, 47 (1st Cir. 2004).

Brady broke new ground in holding that a prosecutor also

violates a defendant's due process rights merely by failing to

disclose material evidence in his possession that is favorable to

the defendant, irrespective of the good or bad faith of the

prosecutor. See 373 U.S. at 87. As a result, Brady is "sometimes

referred to as imposing a no-fault disclosure obligation" on

prosecutors. Haley, 657 F.3d at 48; see also Porter v. White, 483

F.3d 1294, 1305 (11th Cir. 2007) ("The Brady rule . . . imposes a

no-fault standard of care on the prosecutor."). Subsequent to

Brady, the Supreme Court clarified that this affirmative disclosure

obligation also encompasses evidence known only to law enforcement

officers and not to prosecutors. See Kyles, 514 U.S. at 437-38;

see also Strickler v. Greene, 527 U.S. 263, 280-81 (1999); Haley,

657 F.3d at 49. Although "the responsibility for obtaining and

disclosing . . . evidence remains the duty of the prosecutor,"

Haley, 657 F.3d at 49, law enforcement officers have a correlative

duty to turn over to the prosecutor any material evidence that is

favorable to a defendant, see Moldowan v. City of Warren, 578 F.3d

351, 381 (6th Cir. 2009); McMillian v. Johnson, 88 F.3d 1554, 1567

(11th Cir. 1996). Evidence is favorable to a defendant if it is

either exculpatory or impeaching in nature. See United States v.

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Bagley, 473 U.S. 667, 676 (1985). Evidence is material if there is

a "reasonable probability" that, had it been disclosed, the result

of the proceeding would have been different. Id. at 682.7 "The

question is not whether the defendant would more likely than not

have received a different verdict with the evidence, but whether in

its absence he received a fair trial, understood as a trial

resulting in a verdict worthy of confidence." Kyles, 514 U.S. at

434. Thus, a reasonable probability exists when the withholding of

evidence undermines confidence in the outcome of the trial. See

id.; Bagley, 473 U.S. at 682.

We have been careful to distinguish between the

proscription originating in Mooney and Pyle against the deliberate

suppression of evidence and the more recent affirmative disclosure

obligation announced in Brady. See Haley, 657 F.3d at 46. The

allegations in this case primarily go to deliberate suppression.

However, the record does not permit us to exclude the possibility

that Callahan merely failed to disclose evidence with a less

culpable state of mind, particularly in light of the retrial jury's

7
"Significant possibility" might be a better term than
"reasonable probability" because the latter term "raises an
unjustifiable risk of misleading courts into treating it as akin to
the more demanding standard, 'more likely than not.'" Strickler,
527 U.S. at 298 (Souter, J., concurring in part and dissenting in
part). Nevertheless, "reasonable probability" remains the proper
formulation.

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finding that he acted "intentionally or recklessly."8 We therefore

construe Drumgold's invocation of Brady as shorthand for his full

complement of due process rights, including both those articulated

in Mooney and Pyle and those first described in Brady itself. See

Strickler, 527 U.S. at 281-82 (explaining that "a true Brady

violation" involves evidence that was "suppressed by the State,

either willfully or inadvertently").

2. Analysis

With this framework in mind, we focus on the merits of

the materiality issue, beginning with the 2008 civil trial and then

moving to the 2009 retrial. There are serious questions as to

whether Callahan properly preserved this issue for our review in

either proceeding. If the issue was preserved, our review is de

novo. See Zachar v. Lee, 363 F.3d 70, 73 (1st Cir. 2004). If not,

our review is for plain error. See Simon v. Navon, 71 F.3d 9, 13

(1st Cir. 1995). However, since Callahan's challenge fails even if

we apply the standard of review most favorable to him, we will

assume the issue is preserved and review de novo whether he is

entitled to judgment as a matter of law. See Zachar, 363 F.3d at

73. "In undertaking this review, we look to all evidence in the

8
The district judge at one point instructed the retrial jury
that it could hold Callahan liable only if it found that he
"knowingly and deliberately" withheld evidence, but she also
repeatedly explained that Drumgold had to prove that Callahan acted
"intentionally or recklessly," and the special verdict form used in
the retrial reflected that formulation.

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record, drawing all reasonable inferences therefrom in [Drumgold's]

favor, and resist the temptation to weigh the evidence or make our

own credibility determinations." Id. We may rule in Callahan's

favor only if no reasonable person could view the withheld evidence

as material. See id.; Correa v. Hosp. San Francisco, 69 F.3d 1184,

1191 (1st Cir. 1995).

a. The 2008 Trial

To recap, the jury in the 2008 trial found that Callahan

withheld evidence that he provided Evans with "substantial amounts

of money." The question is whether a reasonable jury could view

that evidence as material.

Evans was one of the prosecution's star witnesses during

Drumgold's criminal trial. As described above, he testified that,

shortly before Moore was killed, he saw Drumgold and Taylor

carrying guns near the murder scene. He also testified that Taylor

told Drumgold at that time that he knew where they could find Chris

Chaney and Mervin Reese, whom Beauchesne identified in his opening

statement as the intended targets of Moore's shooting. Finally,

Evans testified that when he next encountered the pair, about an

hour after the shooting, Drumgold appeared anxious and Evans heard

Taylor say that their guns were "hot" and had been "stashed" in a

safe location.

To be sure, other witnesses also linked Drumgold to

Moore's death. Chris Cousins testified that he visited the wounded

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Romero Holliday in the hospital shortly before Moore was killed.

There, Cousins heard Holliday tell Drumgold and Taylor that Chaney

and Reese had shot him, prompting Drumgold and Taylor to assure

Holliday that they were "going to get who did it" in retaliation.

Another witness, Vantrell McPherson, testified that she saw

Drumgold and Taylor two streets away from where Moore was shot

approximately three hours before the shooting, and that Taylor had

said to Drumgold, "[c]ome on, Shawn, you know we got to go do

this," although McPherson had not known what the two men were

talking about.

Two witnesses claimed to have seen Drumgold near the

scene of Moore's shooting shortly after it occurred. Mary

Alexander, who lived a few blocks away, testified that she heard a

gunshot and then saw a man whom she identified in court as Drumgold

climb over a fence behind her house with a gun tucked into his

waistband. Tracy Peaks, a neighbor of Alexander's, testified that

a man she recognized as Drumgold walked casually by her home just

after Moore was killed. A third witness, Eric Johnson -- who had

been leaning on the mailbox where Moore was perched and who "kn[e]w

[Drumgold] from the neighborhood" -- testified that he suspected

one of the masked shooters was Drumgold, largely because one

shooter appeared "bowlegged," as Johnson believed Drumgold to be.

However, the testimony of many of these witnesses was

called into serious doubt. On cross-examination, Drumgold's

-20-
attorney elicited from Alexander the admissions that she had not

initially been able to pick out Drumgold from a photo array after

the shooting and that, before identifying him in court, she had

seen Drumgold's picture in a Boston newspaper alongside an article

describing him as Moore's killer. In addition, Alexander said that

Drumgold appeared to be significantly shorter than the man whom she

saw climb a fence behind her house. Drumgold's attorney also got

Johnson to concede that he was not certain the bowlegged shooter

was Drumgold: "I'm not going to say it was Shawn. . . . I say he

looked similar to Shawn. I can't come out and say straight it was

Shawn. I don't know." Romero Holliday testified that Chris

Cousins never visited him in the hospital, where Cousins claimed to

have overheard Drumgold and Taylor promise to "get" whomever had

shot Holliday. In fact, Holliday claimed that he did not even know

Drumgold at the time of Moore's murder.

Evans's testimony, too, was impeached. There was

evidence at trial of his past criminal activity and other bad acts,

as well as evidence that police officers investigating Moore's

death assisted him with outstanding warrants. Taylor's counsel

also questioned why Evans did not come forward with information

until ten months after the shooting. The existence of this other

impeachment evidence is relevant to the claim here insofar as it

offered a reason to disbelieve Evans even without the withheld

evidence. See United States v. Brandao, 539 F.3d 44, 64 (1st Cir.

-21-
2008); Mastracchio v. Vose, 274 F.3d 590, 603 (1st Cir. 2001).

Still, its impact at trial was countered by Evans's insistence that

his motivation for testifying was sympathy for Moore's mother: "I

just felt like she 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." Evidence that

Callahan gave Evans "substantial amounts of money" for assisting

with the investigation and prosecution of Drumgold could have put

the lie to that claim.

The record is mixed as to when Evans received the money

in question. By all accounts, it was while he was living at the

Howard Johnson hotel. Evans was unable to recall the exact date

that he moved into the hotel, except that it was on "a summer

night" in 1989. He also could not recollect when he left the

hotel, although it was some time after Drumgold's criminal trial

concluded. In all, Evans estimated that he lived at the hotel for

eight months. According to Callahan, however, Evans arrived at the

hotel only a few weeks before the criminal trial -- on September

12, 1989. This chronology is important because, as Callahan points

out, Evans's criminal trial testimony was consistent with pretrial

statements he made as early as June 21, 1989. If these statements

preceded Evans's receipt of money from Callahan, disclosure of that

benefit might have made a smaller splash at the criminal trial.

See Mastracchio, 274 F.3d at 603-04.

-22-
 Although it is hardly conclusive, there was sufficient

evidence in the 2008 trial -- drawing all reasonable inferences

from the record in Drumgold's favor, see Zachar, 363 F.3d at 73 --

that Evans was already living in the Howard Johnson hotel at the

time of his pretrial statements. Drumgold's criminal trial ended

on October 13, 1989. Given Evans's testimony that he departed the

hotel some time afterward, and his estimation that he boarded at

the hotel for eight months in total, he could have arrived there

before June 21, 1989, and so he could have been receiving cash

assistance from Callahan before he gave pretrial statements to him.

This timeline is compatible with Evans's memory of moving into the

hotel on "a summer night."9

As a result, there is a reasonable probability that, if

Callahan's provision of "substantial amounts of money" to Evans had

been disclosed during the 1989 criminal trial, the result of that

proceeding would have been different. This is not to say that

Evans's criminal trial testimony was, on its own, sufficient to

support Drumgold's conviction. After all, his testimony was

equally inculpatory of Taylor, against whom the state court

dismissed all charges. Nevertheless, Evans's testimony was crucial

in connecting the accounts of other prosecution witnesses against

Drumgold, and evidence that he received a significant financial

9
Although the official first day of summer usually falls on
June 21, we understand Evans to mean that he moved into the hotel
on a warm, summer-like evening.

-23-
benefit from Callahan might well have affected the jury's

perception of his credibility.

b. The 2009 Retrial

The foregoing analysis applies equally to the retrial

jury's determination that Callahan withheld evidence that he

provided Evans with free lodging. We have no doubt that a

reasonable jury could view the lodging evidence as material, the

same as evidence that Callahan gave Evans "substantial amounts of

money." Those benefits were a "big deal" to Evans and transformed

his quality of life. There is a reasonable probability that

disclosure of the lodging benefits would have changed the outcome

of Drumgold's criminal trial.

Disclosure of evidence that Callahan gave Evans $20 to

purchase food on one occasion would not have had the same effect,

however. That sum is too small to have made a difference in the

particular circumstances of this case. Indeed, the lawyer who

represented Drumgold during his criminal trial conceded in the 2009

retrial that he would not have cross-examined Evans about a gift of

$20. As a result, no reasonable jury could regard this evidence as

material.

B. Qualified Immunity

Callahan argues that, even if the evidence he withheld

was material, he is entitled to judgment as a matter of law on the

basis of qualified immunity because it was not clearly established

-24-
at the time of Drumgold's criminal trial that he had any

affirmative disclosure obligation under Brady. Again, there are

serious questions about whether Callahan preserved this issue for

our review. However, because Callahan's argument fails in any

event, we will once more assume the issue is preserved and apply a

de novo standard of review. See Walden v. City of Providence, 596

F.3d 38, 52 (1st Cir. 2010); Guillemard-Ginorio v. Contreras-Gómez,

585 F.3d 508, 525-26 (1st Cir. 2009). Throughout, we discuss the

2008 trial and the 2009 retrial together.

1. The Qualified Immunity Doctrine

"Qualified immunity is a judge-made doctrine designed to

'balance two important interests -- the need to hold public

officials accountable when they exercise power irresponsibly and

the need to shield officials from harassment, distraction, and

liability when they perform their duties reasonably.'" Haley, 657

F.3d at 47 (quoting Pearson v. Callahan, 555 U.S. 223, 231 (2009)

(internal brackets omitted)). The doctrine thus protects from

liability for civil damages all public officials other than those

who, "from an objective standpoint, should have known that their

conduct was unlawful." Id. (internal quotation marks omitted); see

also Harlow v. Fitzgerald, 457 U.S. 800, 818 (1982).

The qualified immunity inquiry has two parts. See

Pearson, 555 U.S. at 232; Maldonado v. Fontanes, 568 F.3d 263, 269

(1st Cir. 2009). A court must decide whether the plaintiff has

-25-
made out a violation of a constitutional right and, if so, whether

the right was clearly established at the time of the violation.

See Maldonado, 568 F.3d at 269. This second part, in turn, has two

aspects. See id. The first focuses on the clarity of the law at

the time of the violation. See id. The other aspect focuses more

concretely on the facts of the particular case and whether a

reasonable defendant would have understood that his conduct

violated the plaintiff's constitutional rights. See id. The

"salient question" is whether the state of the law at the time of

the violation gave the defendant fair warning that his particular

conduct was unconstitutional. Id. (citing Hope v. Pelzer, 536 U.S.

730, 741 (2002)).

2. Application

We have already rejected Callahan's argument that the

exculpatory evidence he withheld is not material within the meaning

of Brady. It follows that Drumgold has made out a violation of his

constitutional due process rights. See Brady, 373 U.S. at 87. The

question we now confront is whether those rights were clearly

established at the time of the 1989 criminal trial.

The essence of Callahan's argument is that the

affirmative disclosure obligation Brady imposed on prosecutors in

1963 was not expanded to include law enforcement officers until

Kyles was decided in 1995. That is true, so far as it goes. See

Haley, 657 F.3d at 48-49. As we have said, though, this case also

-26-
involves the deliberate suppression aspect of Brady. There can be

no doubt that, under the line of cases running from Mooney and Pyle

to Brady, the law was firmly settled at the time of Drumgold's

criminal trial that a law enforcement officer may not deliberately

suppress material evidence that is favorable to a defendant. See

id. at 49-51; Limone, 372 F.3d at 45; Newsome v. McCabe, 256 F.3d

747, 752-53 (7th Cir. 2001); McMillian v. Johnson, 88 F.3d 1554,

1568-69 (11th Cir. 1996).

Moreover, to the extent that Callahan acted deliberately,

a reasonable officer in his position plainly would have appreciated

the wrongfulness of his conduct. Callahan claims that a reasonable

officer would not have recognized the evidence in question as

material because Drumgold's lawyer had not bothered to cross-

examine another prosecution witness, Travis Johnson, on the fact

that the district attorney's office paid for his accommodations

during the criminal trial. However, Johnson had to travel to

Boston from another state to testify, and the benefits he received

were tailored to facilitate his appearance at the trial. By

contrast, viewed in the light most favorable to Drumgold, see

Walden, 596 F.3d at 52, the benefits Evans received had little to

do with ensuring his availability to testify or, for that matter,

his safety as a cooperating witness. Evans was permitted to remain

in the Howard Johnson hotel for eight months, he was free to come

and go as he pleased, and no one monitored his whereabouts. A

-27-
reasonable officer would have discerned the difference between the

open-ended benefits Evans received and the far more limited

benefits Johnson received. As a result, there is no basis for

awarding Callahan judgment as a matter of law on qualified immunity

grounds.10

The dissent's lengthy discussion attempting to show that

Callahan is entitled to qualified immunity is flawed both factually

and legally. As a threshold matter, the dissent argues that

Drumgold never raised a claim related to the hotel evidence under

"the Mooney line of cases" and contends that it is unfair to allow

the belated introduction of such a claim on appeal. Although

Drumgold did not cite Mooney and Pyle by name, the due process

claim those cases support -- that Callahan deliberately withheld

10
We do not mean to suggest that a law enforcement officer can
be liable today in a damages action under 42 U.S.C. § 1983 only for
deliberately suppressing evidence. Non-disclosure with a less
culpable state of mind might suffice. See Haley, 657 F.3d at 47
(assuming without deciding that "no-fault nondisclosure constitutes
a viable claim of breach"). This is a difficult question that has
engendered a range of views. See, e.g., Tennison v. City and Cnty.
of San Francisco, 570 F.3d 1079, 1089 (9th Cir. 2009) ("[A] § 1983
plaintiff must show that police officers acted with deliberate
indifference to or reckless disregard for an accused's rights or
for the truth in withholding evidence from prosecutors."); Porter,
483 F.3d at 1306 ("[T]he no-fault standard of care Brady imposes
. . . in the criminal or habeas context has no place in a § 1983
damages action against a law enforcement official in which the
plaintiff alleges a violation of due process."); Villasana v.
Wilhoit, 368 F.3d 976, 980 (8th Cir. 2004) ("[T]he recovery of
§ 1983 damages requires proof that a law enforcement officer . . .
intended to deprive the defendant of a fair trial."). We do not
reach this question here. Our holding is limited to the law as it
was clearly established in 1989, when Callahan engaged in the
conduct at issue here.

-28-
material impeachment evidence -- was a central part of the case as

tried. Indeed, in objecting to the district court's proposed jury

instructions for the 2009 trial, Callahan argued that "the jury

should be explicitly informed that it is the intentional

suppression -- that is, the intentional withholding of evidence --

that is the core allegation at issue." He made similar assertions

in his Memorandum of Law in Support of His Requested Jury

Instructions, where he stated, inter alia, that "[t]he jury should

. . . be instructed that the burden remains on Drumgold at all

times to prove intentional and deliberate suppression of evidence

. . . ." The suppressed evidence at issue was the provision of

hotel and cash benefits to Evans, conduct distinct from Drumgold's

allegation that Callahan had framed him by manufacturing evidence

and inducing Evans to testify falsely.

What matters is not the nomenclature of Drumgold's

withholding-of-evidence claim -- whether we characterize it as

"Brady-based" or "Mooney-based" -- but what the parties, the court,

and the jury understood about the nature of the claim. The

instructions offered by Callahan and given by the court both

required a finding of intentional or reckless conduct,11 and the

jury verdict form was likewise framed that way. Hence, there is no

11
Indeed, the court instructed the jury that "[w]ithholding
material exculpatory evidence by accident or mistake does not give
rise to liability under the Federal Civil Rights Act. As I said,
the conduct must be either intentional or reckless."

-29-
lack of notice problem or any other unfairness associated with

Drumgold's deliberate suppression claim.

Moreover, the omission of citations to Pyle and Mooney in

Drumgold's briefing of his Brady claim on appeal does not mean that

he has discarded the claim that Callahan deliberately suppressed

evidence. As we have explained, Drumgold's invocation of Brady can

only reasonably be understood to broadly state the scope of his

constitutional claim against Callahan, not to limit it to the less

egregious failure to disclose. It turns the Brady principle on its

head to say that a constitutional due process claim exists under

Brady if a police officer allegedly failed to fulfill an

affirmative obligation to disclose evidence irrespective of fault,

but not if the officer is alleged to have deliberately suppressed

that same evidence. In arguing that Drumgold's "Brady" claim

covers only the affirmative obligation to disclose evidence -- an

obligation that was not clearly established for police officers at

the time of Callahan's alleged actions -- the dissent slices away

the foundational assumption of Brady that deliberate suppression of

material evidence is a constitutional violation. See Strickler,

527 U.S. at 282 (stating that "a true Brady violation" includes

instances where evidence was willfully suppressed by the state).

The dissent's confinement of Brady to no-fault

nondisclosure claims, while describing a Mooney claim as one of

"intentional framing," implausibly leaves claims asserting a

-30-
deliberate withholding of evidence without a category of

constitutional redress. To the extent the dissent's labeling is

only case specific -- that is, the invocation of Brady in this case

referred only to the affirmative failure to disclose, not the

deliberate suppression of evidence -- the dissent, as noted, is

flatly wrong.

Here, the jury rejected Drumgold's "non-Brady" claim that

Callahan intentionally framed him by obtaining false statements

from Evans or otherwise manufacturing evidence. But it found that

the exculpatory hotel evidence was "intentionally or recklessly

withheld" -- conduct that, if deliberate, was clearly unlawful at

the time Callahan acted. The labeling of this failure-to-disclose

claim as a Brady claim, or something else, makes no difference

where, as a matter of substance, the claim plainly was understood

by the parties, the judge, and the jury to embrace a culpable state

of mind.

The dissent also argues that Callahan would be entitled

to qualified immunity even if the deliberate suppression of

evidence is covered by Drumgold's Brady claim. This assertion,

however, improperly relies on unsupported factual inferences from

the jury's verdict. The dissent states that the jury's findings do

not establish specific intent. We agree -- but that non-finding

-31-
does not earn Callahan immunity even assuming that specific intent

were the only state of mind sufficient to support liability.12

The special verdict form in the 2009 trial asked whether

Callahan "intentionally or recklessly withheld exculpatory

evidence," and the jury answered "yes" without specifying the state

of mind it found. The dissent points out that the jury "made no

express finding that Callahan acted with the purpose of suppressing

such evidence." Yet the jury also made no express finding that he

did not.

Qualified immunity is an affirmative defense. We see no

justification for granting immunity based on the supposition that

the jury found the lesser state of mind, particularly when -- in

Callahan's words -- "intentional withholding of evidence . . .

[was] the core allegation at issue." The dissent points to

12
In his Memorandum of Law in Support of His Request for Jury
Instructions, Callahan stated:

The jury should be instructed that in order to find
against Callahan, they must find that his omission of
material exculpatory evidence must have been essentially
deliberate. Omission of material exculpatory evidence by
accident or mistake or through some ordinary level of
negligence or carelessness does not give rise to
liability under the statute; rather, the omission must
have been either intentional or reckless, which the law
treats as equivalent of intentional.

Memorandum at 8 (emphasis added); see also, e.g., Tennison, 570
F.3d at 1088 (stating that a § 1983 plaintiff alleging a due
process claim against a police officer for withholding evidence
must show "deliberate indifference to or reckless disregard for an
accused's rights or for the truth in withholding evidence from
prosecutors" (emphasis added)).

-32-
testimony that Callahan had told a prosecutor not involved in

Drumgold's case about placing Evans in a hotel and suggests that,

as a result, the jury could not have found intentional suppression.

It is the jury's province, however, to weigh such evidence along

with the other evidence presented at trial concerning Callahan's

state of mind. Because another trial is necessary, as we explain

infra, the jury will again have the opportunity to do so.

C. The Scope of the 2009 Retrial

As noted above, the retrial jury found that Callahan

withheld evidence that he provided Evans with free housing and $20.

We have already explained that evidence of the latter benefit is

not material. Hence, Callahan cannot be liable for withholding

that evidence. Callahan now contends that the retrial jury should

not have been permitted to reexamine the question of whether he

withheld the housing evidence, since that question was resolved in

his favor during the 2008 trial. He claims that there is, thus, no

valid basis for his liability and that he is entitled to judgment

as a matter of law. There is no dispute that this issue was

preserved.

Although much of the relevant background has already been

laid out elsewhere in this opinion, we repeat portions of it here

for clarity's sake. In the 2008 trial, the jury determined that

Callahan had not withheld evidence that he arranged free housing

for Evans, but had withheld evidence that he gave Evans

-33-
"substantial amounts of money." The jury then hung on the question

of whether Callahan's misconduct had caused Drumgold's conviction.

After a mistrial was declared, Callahan moved for the entry of a

final judgment as to, inter alia, the housing issue and

simultaneously sought to restrict the scope of a retrial to the

causation question on which the first jury deadlocked.

The district judge initially appeared receptive to this

idea but ultimately rejected it. She reasoned that a retrial

limited to causation was not feasible:

A second jury would obviously have to be
instructed that Callahan had violated
Drumgold's civil rights by giving him
"substantial amounts of money" and not
disclosing it. The jury would be left with
the ambiguity of what "substantial money"
meant -- an issue wholly unresolved in the
first trial, notwithstanding the Court's
efforts to seek further clarification. And
the only way to resolve that ambiguity would
be to relate each side's evidence concerning
the treatment of Ricky Evans -- why Ricky
Evans's testimony was significant to the
Drumgold prosecution, that there had been no
eyewitnesses to the murder that Drumgold was
convicted of, . . . the relationship between
defendant Callahan and the witness, the steps
that defendant Callahan allegedly took to
secure Evans's testimony (hotel rooms, meals,
cash, etc.). In short, all aspects of Ricky
Evans's portion of this case would be
involved.

As a result, the judge declined to enter a final judgment as to the

housing issue and permitted the retrial jury to determine afresh

what housing and money benefits, if any, Callahan gave Evans and

failed to disclose.

-34-
 The general practice after a mistrial is a full retrial

of all issues in the case. See Nissho-Iwai Co. v. Occidental Crude

Sales, 729 F.2d 1530, 1538 (5th Cir. 1984). However, when some

issues have been properly and conclusively resolved, there may be

a partial retrial on the remaining issues if it "clearly appears"

that they are "so distinct and separable from the others that a

trial of [them] alone may be had without injustice." Gasoline

Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931).

This determination is distinctly within the ken of the trial judge.

See Sprague v. Boston & Me. Corp., 769 F.2d 26, 28 (1st Cir. 1985).

Accordingly, our review of the judge's decision as to the scope of

the 2009 retrial is for abuse of discretion. See Winn v. Lafayette

Town House, 839 F.2d 835, 837 (1st Cir. 1988); Sprague, 769 F.2d at

28.

There were three possible ways to define the scope of the

retrial. First, the judge could have confined the retrial to the

causation inquiry that stymied the first jury. We agree with the

judge that this was not a feasible option. The retrial jury could

not have conducted a meaningful causation inquiry without rehearing

the entirety of the 2008 trial evidence involving Evans in order to

understand both the dynamics of his relationship with Callahan and

his role in Drumgold's criminal trial. Having heard that evidence,

the retrial jury inevitably would have drawn its own conclusions as

to the nature and amount of benefits that Callahan gave Evans, and

-35-
would have been confused if prevented from returning a verdict

reflecting those conclusions. While juries are frequently

instructed to consider evidence for one purpose and not others, see

Fed. R. Evid. 105, we share the district judge's concern that such

an instruction would have posed an unacceptably high risk of

confusion in this case, see Colonial Leasing of New England, Inc.

v. Logistics Control Int'l, 770 F.2d 479, 481 (5th Cir. 1985)

("[W]hen the issues subject to retrial are so interwoven with other

issues in the case that they 'cannot be submitted to the jury

independently . . . without confusion and uncertainty, which would

amount to a denial of a fair trial,' then it is proper to grant a

new trial on all of the issues raised." (quoting Gasoline Prods.,

283 U.S. at 500)); Sears v. S. Pac. Co., 313 F.2d 498, 503 (9th

Cir. 1963).

The second route the judge could have taken was to allow

the retrial jury to revisit whether Callahan withheld evidence that

he gave money to Evans but not whether Callahan withheld evidence

regarding the housing benefit. This approach, too, would have

risked confusion since the evidence concerning the various benefits

at issue here overlaps both topically and temporally. Moreover, it

would have been unfair to Drumgold if he had to prove anew in the

retrial that Callahan withheld evidence of a financial benefit to

Evans, but Callahan was able to capitalize on the first jury's

finding that he did not withhold evidence of a housing benefit.

-36-
 The third option, which the judge embraced, was a

compromise solution. Permitting the retrial jury to reopen the

housing issue clearly disadvantaged Callahan. However, reopening

the financial benefit issue worked to Callahan's advantage since it

canceled out the first jury's finding that he withheld evidence

that he gave Evans "substantial amounts of money." That opened the

door for Callahan to persuade the retrial jury that the amount of

money in question was only $20 -- a sum we have now said was too

low to support his liability.

We find no abuse of discretion in the judge's ruling.

The causation inquiry unresolved in the 2008 trial was not "so

distinct and separable" from the housing issue that a partial

retrial limited to causation plainly could be had without

injustice. Gasoline Prods., 283 U.S. at 500. The judge's solution

to that problem was sensible and evenhanded.

The dissent's contrary view fails to give deference to

the district court's carefully considered compromise and, hence,

cannot be reconciled with the abuse of discretion standard. This

is a difficult case, factually and legally. The 2008 trial spanned

twenty-five days. The district court judge was deeply engaged with

the issues over a lengthy period of time. Our colleague

nonetheless challenges the district court's judgment with a

scattershot effort to depict its ruling as both legally and

factually erroneous. The dissent's analysis, however, reduces to

-37-
a disagreement with the district court on a question that is

uniquely within the district court's expertise: whether this is a

case where "the issues were too 'interwoven' to retry one issue

separately."

As we have explained, the district court had multiple

paths to choose from. Its conclusion that the facts surrounding

the provision of "substantial amounts of money" to Evans inevitably

would implicate the entirety of Callahan's relationship with Evans

is supportable and, in the context of this case, does not require

the extensive elaboration required by our colleague. The district

court's explanation was wholly adequate. Nor does the district

court's ruling conflict with Gasoline Products, where the Supreme

Court considered the propriety of a court's departure from the

common law rule that an error with respect to one issue results in

a new trial on all issues. See 283 U.S. at 497. The Supreme

Court's conclusion that the Seventh Amendment "does not compel a

new trial of [all issues] even though another and separable issue

must be tried again," id. at 499, does not tilt the constitutional

balance in favor of a limited retrial. In sum, we have no reason

here -- and no license -- to preempt the district court's choice on

the contours of the new trial.

Hence, there was a valid basis for Callahan's liability

in the 2009 retrial.

-38-
D. The Jury Instructions

We have now established that Callahan is not entitled to

judgment as a matter of law. We turn to his alternative argument

that a new trial is necessary because the judge's instructions on

causation to the retrial jury were erroneous. We begin our

discussion with the applicable legal framework and then quote the

pertinent parts of the jury instructions before setting out the

standard of review and moving to the merits of the issue.

1. The Legal Framework

Drumgold's claims against Callahan were brought under 42

U.S.C. § 1983, the federal civil rights statute. To recover

damages under § 1983, Drumgold must show more than a Brady

violation. See Johnson v. Mahoney, 424 F.3d 83, 89 (1st Cir.

2005); see also Rodriguez v. Woodall, 189 F. App'x 522, 527 (7th

Cir. 2006) ("[A] constitutional violation, such as a Brady

violation, is necessary, but more is needed."). He also must

demonstrate by a preponderance of the evidence a causal link

between the Brady violation and his conviction. See Johnson, 424

F.3d at 89.

As a general rule, "[w]e employ common law tort

principles when conducting inquiries into causation under § 1983."

Sanchez v. Pereira-Castillo, 590 F.3d 31, 50 (1st Cir. 2009)

(internal quotation marks omitted); see also Rodríguez-Cirilo v.

García, 115 F.3d 50, 52 (1st Cir. 1997) ("The issue of causation of

-39-
damages in a section 1983 suit is based on basic notions of tort

causation."); Maldonado Santiago v. Velázquez García, 821 F.2d 822,

831 (1st Cir. 1987) ("Section 1983 imposes a causation requirement

similar to that of ordinary tort law."). There are exceptions to

this rule, though, and "[c]are must be taken in applying these

principles to the § 1983 context." Olsen v. Correiro, 189 F.3d 52,

66 n.16 (1st Cir. 1999); see also Coscia v. Town of Pembroke,

Mass., 659 F.3d 37, 40 (1st Cir. 2011); 1 Sheldon H. Nahmod, Civil

Rights and Civil Liberties Litigation: The Law of Section 1983

§ 3:106 (4th ed. 2011) ("[T]ort law purposes and interests are

often different from § 1983 purposes and interests, and thus tort

law concepts should not be blindly applied.").

Under tort causation principles, an actor may be held

liable for harm to another person if the actor's misconduct was a

factual cause of the harm, see Restatement (Third) of Torts § 26

(2010), and the harm resulted from the risks that made the conduct

wrongful in the first place, meaning that it was a reasonably

foreseeable consequence of the misconduct, see id. § 29. In turn,

misconduct is considered a factual cause of harm in two mutually

exclusive situations. The first is where the harm would not have

occurred but for the misconduct. See id. § 26. This rule is

sometimes called the "but for" causation principle. See id. § 26

cmt. b. The second scenario is where the harm was brought about

concurrently by the misconduct and an unrelated force, each of

-40-
which would have been sufficient by itself to trigger the harm.

See id. § 27. In that circumstance, the actor's misconduct was not

a necessary condition for the harm, since the harm would have

occurred in its absence due to the concurrent force. See id. § 27

cmt. a. Nevertheless, the misconduct is regarded as a factual

cause of the harm for policy reasons, since the actor should not

escape liability merely because of the fortuitous operation of

another force that also would have produced the harm on its own.

See Dan B. Dobbs et al., The Law of Torts § 189 (2d ed. 2011) ("It

would be a windfall [if the actor] were to escape liability for the

harm merely because another [force] was also sufficient to cause

the same harm."); W. Page Keeton et al., Prosser and Keeton on

Torts § 41 (5th ed. 1984). We refer to this rule as the concurrent

causation principle.

The materiality standard articulated in Brady and its

progeny incorporates a version of the "but for" causation

principle. Evidence that was withheld during a criminal trial is

material only if there is a reasonable probability that its

disclosure would have altered the trial's outcome. See Strickler,

527 U.S. at 280; Kyles, 514 U.S. at 434; Bagley, 473 U.S. at 682.

Put another way, there must be a reasonable probability that the

defendant would not have been convicted but for the wrongful

withholding of exculpatory evidence. Hence, one cannot establish

a Brady violation without showing to the requisite standard that

-41-
the withholding of evidence was a necessary condition for the

conviction. In the criminal context, this showing may result in a

new trial or a judgment of acquittal.

To recover damages in a civil trial based on such a

violation, however, a § 1983 plaintiff must demonstrate a stronger

causal link than is inherent in Brady's materiality standard.

Having already shown a reasonable probability that he would not

have been convicted but for the withholding of evidence, the

plaintiff must then make the same showing by a preponderance of the

evidence. In other words, the factual causation inquiry

essentially replicates the materiality inquiry with a heightened

burden of proof.13

Understood in this light, there is no place in the

factual causation inquiry for the concurrent causation principle.

That principle is incompatible with Brady's materiality standard.

Whereas under the concurrent causation principle misconduct can be

a factual cause of harm even if the harm would have happened

anyway, see Restatement (Third) of Torts § 27 (2010), withheld

13
There is some logical appeal to bypassing the materiality
inquiry and simply requiring the plaintiff to prove from the outset
by a preponderance of the evidence that he would not have been
convicted but for the withholding of evidence. Nevertheless,
materiality and causation are in fact discrete inquiries and should
be considered separately. The threshold question in a § 1983 suit
is whether there has been a violation of a federally secured right.
See Baker v. McCollan, 443 U.S. 137, 140 (1979). Materiality
properly is a component of that question. The causation inquiry
begins only after a violation has been established. See Sanchez,
590 F.3d at 41.

-42-
evidence is never material within the meaning of Brady if its

disclosure would have made no difference, see United States v.

Wall, 349 F.3d 18, 23 (1st Cir. 2003).

The second element of the traditional tort causation

inquiry limits the scope of an actor's liability to harm that

results from the risks that made his conduct wrongful. See

Restatement (Third) of Torts § 29 (2010). When material

exculpatory evidence is withheld, the obvious risk is a tainted

conviction. That risk is the reason for the Brady doctrine.

Hence, once a Brady violation is established, there is no need to

ask again whether the harm (i.e., the conviction) was foreseeable.

Once a Brady violation has been shown, the causation inquiry in a

§ 1983 damages suit is only a "but for" inquiry pursuant to the

preponderance of the evidence standard.

2. The Jury Instructions

We now turn to the jury instructions given in the 2009

retrial. The judge first gave a materiality instruction that has

not been challenged.14 She then gave a lengthy causation

14
The materiality instruction was as follows:

Exculpatory evidence is material when it is of a
type that could undermine confidence in the outcome of a
trial. It would include evidence that has the potential
to alter a jury's assessment of the credibility of a
significant government witness.

In determining what is material, the question is not
whether a defendant would more likely than not receive a
different verdict if the evidence had been disclosed.

-43-
instruction, informing the retrial jury that, if it found that

Callahan withheld material exculpatory evidence, it had to decide

whether his misconduct caused Drumgold's conviction:

Now, I'll address the question of
cause, legal cause standard. If you determine
that Officer Callahan committed a
constitutional violation either by obtaining
false statements or suppressing exculpatory
evidence, and, again, material exculpatory
evidence, you then need to address the
relationship between the constitutional
violations that you found and Shawn Drumgold's
conviction. That relationship is defined by
the legal concept known as causation.

The question is whether without the evidence he would
receive a fair trial, understood as a trial resulting in
a verdict worthy of confidence.

And in considering whether a verdict worthy of
confidence would result, you have to consider the
setting. . . . In [the 1989 criminal trial], the burden
of proof was beyond a reasonable doubt. The
[prosecution] was required to convince a unanimous jury
beyond a reasonable doubt to sustain a conviction against
Mr. Drumgold. Thus, one way of understanding materiality
is to consider whether the undisclosed evidence would
have created a reasonable doubt of the defendant's guilt.

This instruction omitted the statement that Drumgold had to
show a reasonable probability that he would not have been convicted
but for Callahan's withholding of evidence. The instruction noted
that "evidence is material when it is of a type that could
undermine confidence in the outcome of a trial" and that "the
question is not whether a defendant would more likely than not
receive a different verdict if the evidence had been disclosed."
Those are important glosses on Brady's materiality standard, but
the centerpiece of the standard is a reasonable probability of a
different result. See Kyles, 514 U.S. at 434. The absence of that
formulation from the instruction detracted from the causal showing
at the heart of the materiality inquiry. Nevertheless, there is no
challenge to the materiality instruction on appeal, and this
omission is not a factor in our decision.

-44-
 Causation has two elements: Factual
cause and proximate cause. An act is a
factual cause of an injury if it appears from
the evidence that it was a substantial factor
in bringing about the injury.[15] There may be

15
As explained above, an actor is liable in tort for harm to
another person if the actor's misconduct was a factual cause of the
harm, see Restatement (Third) of Torts § 26 (2010), and the harm
resulted from the risks that made the conduct wrongful in the first
place, meaning that it was a reasonably foreseeable consequence of
the misconduct, see id. § 29. These elements traditionally have
been referred to as "factual causation" and "proximate causation,"
but the terms for these two concepts sometimes have been confused,
as have the concepts themselves. See Rodríguez-Cirilo, 115 F.3d at
54 (Campbell, J., concurring) (noting confusion); Fedorczyk v.
Caribbean Cruise Lines, Ltd., 82 F.3d 69, 73 (3d Cir. 1996) (same);
Dan B. Dobbs et al., The Law of Torts § 185 (2d ed. 2011) ("Courts
often lump these two distinct issues together under the rubric of
'proximate cause.'"). One particular source of confusion has been
the "substantial factor" test used in many jurisdictions, under
which an actor may be held liable for harm if his misconduct was a
substantial factor in bringing about the harm and no rule of law
relieves the actor from liability because of the manner in which
the harm occurred. See Restatement (Second) of Torts § 431 (1965).
Although this test was intended as the "routine standard" for
factual causation, Restatement (Third) of Torts § 26 cmt. j (2010),
it commonly has been misunderstood to address proximate causation,
as well, see, e.g., Clement v. United States, 980 F.2d 48, 53 n.13
(1st Cir. 1992); Richard W. Wright, Causation in Tort Law, 73 Cal.
L. Rev. 1735, 1782 (1985).
The modern trend, endorsed by the American Law Institute
("ALI"), is to retain the term "factual causation" but abandon the
"substantial factor" test, see Restatement (Third) of Torts § 26
cmt. j (2010), and to replace the problematic term "proximate
causation" with "scope of liability," see id. Ch. 6, Special Note
on Proximate Cause (2010), and thereby refocus the second component
of the causation inquiry on whether the harm in question was among
"those harms that result from the risks that made the actor's
conduct tortious," id. § 29. In addition, although the ALI for
many years employed the umbrella term "legal cause" to encompass
both elements of the causation inquiry, see Restatement (Second) of
Torts § 430 (1965), it recently retired that term in an effort to
emphasize that the two elements are distinct, see Restatement
(Third) of Torts Ch. 6, Special Note on Proximate Cause (2010).
This trend has been embraced by a number of courts, see, e.g.,
June v. Union Carbide Corp., 577 F.3d 1234, 1240 (10th Cir. 2009);

-45-
 a number of factual causes of any particular
injury; not everyone whose acts are factual
causes of an injury is legally responsible.
The law determines whether it is fair to hold
someone responsible for an injury using the
concept of proximate cause. An act is the
proximate cause of an injury if the injury is
a reasonably foreseeable consequence of the
act.

This does not mean that the law
recognizes only one legal cause of an injury
or damage consisting of only one factor or
thing or the conduct of one person, of only
one person. On the contrary, many factors or
things may operate at the same time either
independently or together, to cause an injury.
In that case, each may be a legal cause.

Let me give you an example of legal
causation. Two fires are raging in the
forest. One started when someone dropped a
match on the ground. The two fires join
together and burn down a barn. Dropping the
match was a substantial factor in the harm of
burning down the barn. The barn burning down
was a reasonably probable result of dropping
the match. In other words, the match legally
caused the damage to the barn even if
lightning itself would have burned it down.

Put in the context of this case, you
should decide whether Officer Callahan's
wrongful conduct was a substantial factor in
bringing about Shawn Drumgold's conviction and
whether it was reasonably foreseeable that a
conviction would result from his conduct.

Thompson v. Kaczinski, 774 N.W.2d 829, 837 (Iowa 2009), and,
properly understood, merely represents a shift in terminology, see
Restatement (Third) of Torts § 29 cmt. j (2010). The contours of
the causation inquiry are unchanged.
We use the new terminology proposed by the ALI throughout this
opinion to help us explain the error in the district judge's
causation instruction. It is premature to adopt the new
terminology generally. The district judge used the traditional
terminology.

-46-
 Defendant Callahan's, Officer Callahan's,
conduct need not be the only cause nor the
latest or the nearest cause, it is sufficient
if it concurs with some other cause acting at
the same time which in combination with it
contributed to Shawn Drumgold's conviction.

Again, concerning legal cause, I remind
you that the plaintiff has the burden of
proving that any constitutional violations you
identify were the cause of the damages
Plaintiff Drumgold has sustained. In other
words, Mr. Drumgold must prove by a
preponderance of the evidence that Officer
Callahan's actions in . . . failing to
disclose material exculpatory information were
a substantial factor in causing Mr. Drumgold's
conviction and that the conviction was a
reasonably foreseeable result of Officer
Callahan's actions. The evidence on which
you're to evaluate cause is the trial
transcript which is now before you of the 1989
criminal trial.

3. The Standard of Review

Callahan objects to this instruction because it included

the concurrent causation principle. Our standard of review depends

on whether Callahan preserved this objection. See Colón-Millín v.

Sears Roebuck de P.R., Inc., 455 F.3d 30, 40 (1st Cir. 2006).

Federal Rule of Civil Procedure 51 provides a method for

preserving objections to jury instructions. See Surprenant v.

Rivas, 424 F.3d 5, 15 (1st Cir. 2005). The judge must apprise the

parties of the proposed instructions, consider requested

instructions, and note objections before charging the jury. See

Fed. R. Civ. P. 51(b); Booker v. Mass. Dep't of Pub. Health, 612

F.3d 34, 40-41 (1st Cir. 2010); Surprenant, 424 F.3d at 15. "An

-47-
objection lodged at that time preserves the underlying issue for

appeal." Surprenant, 424 F.3d at 15; see also Fed. R. Civ. P.

51(c)(2)(A). If, however, the judge fails to inform a party of "an

instruction or action on a request" before the jury is charged, the

party may object "promptly after learning that the instruction or

request will be, or has been, given or refused." Fed. R. Civ. P.

51(c)(2)(B); see also Booker, 612 F.3d at 41. A party who objects

to an instruction must "stat[e] distinctly the matter objected to

and the grounds for the objection." Fed. R. Civ. P. 51(c)(1).

Drumgold argues that Callahan not only failed to preserve

his objection to the concurrent causation principle but invited any

instructional error by advocating the indiscriminate application of

traditional tort causation principles. See P.R. Hosp. Supply, Inc.

v. Boston Scientific Corp., 426 F.3d 503, 505 (1st Cir. 2005) ("In

general, a party may not appeal from an error to which he

contributed, either by failing to object or by affirmatively

presenting to the court the wrong law." (internal quotation marks

omitted)); 9C Charles Alan Wright & Arthur R. Miller, Federal

Practice and Procedure § 2558 (3d ed. 2008) ("The so-called invited

error rule . . . prescribes that a party may not complain on appeal

of errors that he himself invited . . . . Thus, a party who

requests a jury instruction cannot complain if the instruction, or

one substantially like it, is given by the trial judge." (footnote

omitted) (internal quotation marks omitted)).

-48-
 We disagree. Before the retrial jury was charged,

Callahan objected to the inclusion in the judge's instructions of

the example of two fires combining to burn down a barn. This

example is a classic illustration of the concurrent causation

principle, see Restatement (Second) of Torts § 432 cmt. d, illus.

4 (1965), and Callahan's objection adequately alerted the judge to

his concern that this principle was inapposite. Moreover, Callahan

expressly requested a causation instruction in line with the "but

for" causation principle:

The jury should be instructed that they are to
consider the Evans issues within the context
of the entire [1989 criminal trial], and that
they may only find for Drumgold if they find
that the conviction would not have occurred
but for the alleged suppression of the Evans
evidence.

Viewed together with the objection to the illustration of the

concurrent causation principle, this requested instruction signaled

an attempt to confine the causation inquiry in the 2009 retrial to

the "but for" causation principle. Accordingly, we treat

Callahan's objection as preserved. "We review de novo preserved

claims of legal error in jury instructions, but we review for abuse

of discretion claimed errors in instructions' form or wording."

Uphoff Figueroa v. Alejandro, 597 F.3d 423, 434 (1st Cir. 2010);

see also Portugues-Santana v. Rekomdiv Int'l, 657 F.3d 56, 60 (1st

Cir. 2011). In doing so, we "look to the challenged instructions

in relation to the charge as a whole, asking whether the charge in

-49-
its entirety -— and in the context of the evidence —- presented the

relevant issues to the jury fairly and adequately." Sony BMG Music

Entm't v. Tenenbaum, 660 F.3d 487, 503 (1st Cir. 2011) (internal

quotation marks omitted). Even if we detect an error, a new trial

is required only if the error was prejudicial. See id.

4. Analysis

The instructions given to the retrial jury appropriately

presented materiality and causation as separate, sequential

inquiries.16 However, the judge made a fundamental error in

describing the substance of the causation inquiry. She explained

the concept of factual causation by reference to the "substantial

factor" test and then fleshed out that test with a graphic

illustration of the concurrent causation principle. Specifically,

she used the example of two fires combining to destroy a barn to

underscore the point that the fire ignited by the match could be

considered "a substantial factor in the harm of burning down the

barn . . . even if lightning itself would have burned it down."

Insofar as that example implied that Callahan's misconduct could be

a factual cause of Drumgold's conviction even if Drumgold would

16
The special verdict form used in the retrial likewise
presented materiality and causation as separate questions,
directing the jury to decide first whether "the evidence withheld
by Defendant Callahan was material" and then, if so, whether
Callahan's withholding of that evidence "was a legal cause of Mr.
Drumgold's conviction."

-50-
have been found guilty anyway, it was irreconcilable with Brady's

materiality standard and had no place in the causation inquiry.

The judge should have limited her discussion of factual

causation to the "but for" causation principle. That is, she

should have directed the jury to determine whether Drumgold had

proven by a preponderance of the evidence that he would not have

been convicted but for Callahan's wrongful withholding of

exculpatory evidence. Instead, the judge improperly invited the

jury to analyze factual causation through the lens of the

concurrent causation principle.17

We have no confidence that the retrial jury's verdict was

unaffected by the instructional error. Having linked the

"substantial factor" test with the concurrent causation principle,

the judge told the jury to "decide whether Officer Callahan's

wrongful conduct was a substantial factor in bringing about Shawn

Drumgold's conviction," and reiterated at the close of the

causation instruction that Drumgold had to "prove by a

preponderance of the evidence that Officer Callahan's actions in

. . . failing to disclose material exculpatory information were a

substantial factor in causing [his] conviction." This charge was

nearly the last thing the jury heard before it began its

17
In fairness to the district judge, we note that the issue
of causation in civil trials seeking damages for Brady violations
has not been well-developed. In that legal environment, it would
be easy to make a mistake.

-51-
deliberations, and it diluted the standard of liability by making

it possible for the jury to find that Callahan's withholding of

evidence was a factual cause of Drumgold's constitutional injury

(i.e., his wrongful conviction) even if that evidence was not the

"but for" cause of Drumgold's conviction -- the materiality

standard required by Brady. That illogical possibility could only

have prejudiced Callahan.

It is our duty "to remain vigilant in policing the

boundaries separating tort law from constitutional law," Nix v.

Franklin Cnty. Sch. Dist., 311 F.3d 1373, 1379 (11th Cir. 2002),

and to apply in the § 1983 context only those tort causation

principles that are compatible with the underlying constitutional

right, see Calero–Colón v. Betancourt–Lebron, 68 F.3d 1, 4 (1st

Cir. 1995) ("[T]he essential elements of actionable section 1983

claims derive first and foremost from the Constitution itself, not

necessarily from the analogous common law tort."). The causation

instruction given in this case clashed with Brady's materiality

standard. A wrongful conviction based on the withholding of

exculpatory evidence is not redressable under § 1983 without a

showing, by a preponderance of the evidence, of "but for"

causation. The erroneous instruction here permitted the jury to

impose liability even in the absence of that causal nexus.

Therefore, another retrial is necessary. See Allen v. Chance Mfg.

Co., 873 F.2d 465, 469 (1st Cir. 1989) ("An erroneous jury

-52-
instruction necessitates a new trial . . . if the error could have

affected the result of the jury's deliberations.").

III.

We vacate the judgment in Drumgold's favor and remand

this case to the district court for a new trial consistent with

this opinion. Each party is to bear its own costs.

So ordered.

– Dissenting Opinion Follows --

-53-
 LYNCH, Chief Judge, concurring in part, dissenting in

part, and dissenting in the judgment. I join two of the majority's

holdings: (1) that evidence of Callahan's provision of $20 to

Evans, as found by the 2009 jury, was not material exculpatory

evidence, and (2) that the district court erred in its causation

instruction and that this error prejudiced Callahan. I dissent

from the qualified immunity and scope of retrial holdings. On both

of those issues, Callahan was and is entitled to judgment as a

matter of law, and the case should not be remanded.

I.

As to both issues on which I dissent, some background is

provided.

On October 13, 1989, Shawn Drumgold was convicted in

Massachusetts state court of the first degree murder of twelve-

year-old Darlene Tiffany Moore. The Massachusetts Supreme Judicial

Court (SJC) affirmed the conviction on direct appeal in 1996. See

Commonwealth v. Drumgold, 668 N.E.2d 300 (Mass. 1996). In 2003, a

Massachusetts state judge held an evidentiary hearing on Drumgold's

motion for a new trial, based on Drumgold's allegations of a series

of newly discovered defects in the original trial. See Drumgold v.

Commonwealth, 937 N.E.2d 450, 454 (Mass. 2010). Following the

hearing, the Commonwealth of Massachusetts filed a motion to vacate

the conviction. Id. The Commonwealth denied that any of

Drumgold's allegations, taken alone, would justify a new trial, but

-54-
it admitted that, taken together, all of the allegations indicated

that "justice may not have been done." Id. at 454 n.11. With the

defendant and the prosecutor in agreement that a new trial was

warranted, the state judge granted a new trial. Id. at 456-57.

She emphasized that her ruling did not mean that Drumgold was

factually innocent and did not mean that police or prosecutorial

misconduct had been established. See id. at 457.

The evidence before the state judge in 2003 included: (1)

that a key eyewitness, Mary Alexander, had been suffering from

terminal brain cancer at the time of her testimony, a condition

which caused memory loss, id. at 454-55; (2) that another key

eyewitness, Tracie Peaks, had recanted her 1989 testimony and now

claimed that it had been coerced, id. at 455 n.12; (3) that a third

identification witness had also recanted his 1989 testimony, id. at

456 n.15; and (4) that Ricky Evans had recanted his 1989 testimony

and that there had been undisclosed promises made to Evans

regarding pending criminal charges against him and regarding the

provision of housing and meals to him, id. at 455-56.

Having considered all of these grounds cumulatively, the

judge vacated Drumgold's conviction, finding that he had been

denied his right to a fair trial. Id. at 457. The judge

emphasized that "nothing in [her] ruling in any way should be

construed as a specific finding or determination . . . as to any

grounds advanced by [Drumgold] in his motion for a new trial." Id.

-55-
After the state court's decision, the Commonwealth filed a nolle

prosequi, ending all criminal proceedings against Drumgold arising

out of the 1989 murder. Id. at 452.

Drumgold then filed a lawsuit against the Commonwealth in

state court under the Massachusetts Erroneous Convictions Law,

Mass. Gen. Laws ch. 258D, which provides for compensation up to

$500,000 for victims of wrongful convictions, id. § 5. On

application for direct appellate review of the denial of the

Commonwealth's motion for summary judgment in that case, the SJC

ruled that Drumgold was an eligible claimant under the statute.

Drumgold, 937 N.E.2d at 452; see Mass. Gen. Laws ch. 258D, § 1. As

the SJC's decision made clear, the combination of the various

grounds offered in the new trial motion, and particularly the

allegations regarding Alexander, were very serious. See Drumgold,

937 N.E.2d at 457-58. The present appeal involves only a portion

of the fourth ground described above. The state case settled after

remand; there is no public record of the amount the Commonwealth

paid in settlement.

Meanwhile, in 2004, Drumgold also filed a federal lawsuit

that led to this appeal.18 In the district court, Drumgold asserted

claims under 42 U.S.C. § 1983 and Massachusetts General Laws ch.

12, § 11I, against the City of Boston and three police officers,

18
Drumgold filed his suit under the Erroneous Convictions Law
separately because that statute provides for exclusive jurisdiction
in Massachusetts Superior Court. Mass. Gen. Laws ch. 258D, § 3.

-56-
including Callahan. At the first trial of Drumgold's claims, in

2008, the jury concluded that Callahan had not in fact withheld or

manufactured evidence relating to Mary Alexander or Tracie Peaks.

As to Ricky Evans, the 2008 jury found that Callahan had not

solicited false statements from him regarding the night of the

murder and had only withheld evidence relating to certain cash

payments to Evans, the amount of which the jury did not determine.

On the twenty-fifth day of trial, the jury hung on the question of

whether those payments had been a legal cause of Drumgold's

injury.19

Nonetheless, the district court granted a retrial on all

of Drumgold's claims relating to Ricky Evans. As a result of the

second trial, in 2009, Drumgold obtained a $14 million verdict --

approximately a million dollars per year for each year he spent in

prison, a rate we have described as "extremely generous" in

wrongful conviction cases. Limone v. United States, 579 F.3d 79,

106 (1st Cir. 2009). Unlike the panoply of reasons the state court

gave as the basis for vacating Drumgold's conviction, the basis for

the 2009 damages award was solely that Callahan had withheld

evidence of housing benefits and money benefits he had provided to

19
The jury rejected all theories of liability for the other
police officer who remained as a defendant in the 2008 trial. The
district court bifurcated Drumgold's claims against the City of
Boston from his claims against the individual police officers. The
portion of the case involving the City is stayed pending the
outcome of this appeal.

-57-
Ricky Evans. See Drumgold v. Callahan, 806 F. Supp. 2d 405, 408

(D. Mass. 2011). That verdict was infected with error due to its

jury instructions, as the majority holds. In addition, part of the

2009 jury's verdict directly contradicted part of the jury's

decision in the first trial: the 2008 jury determined that Callahan

had not withheld evidence about housing Evans in a hotel; the 2009

jury found that he had.

II.

A. Qualified Immunity

In my view, the law requires that Callahan be granted

qualified immunity.20

In a qualified immunity inquiry, the court must ask (1)

whether the plaintiff has made out a violation of a constitutional

right, and (2) whether that right was "clearly established" at the

20
Callahan has not waived his qualified immunity argument.
He raised it at both the 2008 and 2009 trials, including a lengthy
colloquy at the jury charge conference in 2008 regarding the
applicable law. See Lynch v. City of Boston, 180 F.3d 1, 13 n.9
(1st Cir. 1999) ("[Federal Rule of Civil Procedure] 50(a)(2) is
designed to prevent unfair surprise and to provide the responding
party with an opportunity to correct any deficiencies in her
proof. Our review of the record demonstrates that [plaintiff]
could hardly have been surprised by [defendant]'s assertion of
qualified immunity." (citation omitted)). Moreover, when Callahan
again argued for qualified immunity in his renewed motion for
judgment as a matter of law following the 2009 jury's verdict,
Drumgold did not contend in his opposition to that motion that
Callahan had waived the argument. Because Drumgold never argued
waiver in the district court, the trial judge did not address the
issue in her ruling on Callahan's post-trial motions. See
Drumgold, 806 F. Supp. 2d at 417-19. If anything, then, it is
Drumgold who has waived the argument that Callahan waived the
qualified immunity defense.

-58-
time of the violation -- although the court need not necessarily

address the questions in that order. See Maldonado v. Fontanes,

568 F.3d 263, 269-70 (1st Cir. 2009) (citing Pearson v. Callahan,

555 U.S. 223, 232, 236 (2009)). The "clearly established" prong,

in turn, encompasses two questions: whether the right was, in

general, "sufficiently clear that a reasonable official would

understand that what he [was] doing violate[d] that right," id. at

269 (quoting Anderson v. Creighton, 483 U.S. 635, 640 (1987))

(internal quotation mark omitted); and whether, under the

particular facts of the case, a reasonable defendant would have

understood that he was violating the right, id.

As the majority recognizes, the $20 that Callahan gave to

Evans, as found by the 2009 jury, was not material exculpatory

evidence. Drumgold thus failed to make out a constitutional

violation as to the money, and Callahan is entitled to qualified

immunity on that issue under the first prong of the qualified

immunity analysis. The only remaining issue, then, is whether

Callahan was entitled to qualified immunity on the claim that he

did not disclose to the prosecution in Drumgold's murder case that

Ricky Evans was being housed in a hotel.

Callahan was clearly entitled to immunity, on several

grounds.21 The law was not clearly established in 1989 that

21
As I explain below in section II.B, Callahan was entitled
to the benefit of the first jury's verdict on the hotel housing
issue. The 2008 jury found that he did not withhold exculpatory

-59-
Callahan was under any duty to disclose such information, and a

reasonable police officer in Callahan's position would not have

understood that his alleged actions regarding Evans's housing

violated a constitutional right.

This court has explained very recently that, at least

until 1995, it was not clearly established that the affirmative

disclosure obligation imposed on prosecutors by Brady v. Maryland,

373 U.S. 83 (1963), applied to police officers. See Haley v. City

of Boston, 657 F.3d 39, 48-49 (1st Cir. 2011). "By its terms,

Brady applied only to prosecutors." Id. at 48. Even after 1995,

when the Supreme Court decided Kyles v. Whitley, 514 U.S. 419

(1995), the role of police officers in the Brady calculus remained

"indirect," as that case held "that the disclosure obligation

imposed by Brady extends to evidence known only to police officers,

but that the responsibility for obtaining and disclosing such

evidence remains the duty of the prosecutor." Haley, 657 F.3d at

49 (citing Kyles, 514 U.S. at 437-38).

It certainly was not clearly established in 1989 that a

police officer in Callahan's position had an affirmative obligation

under Brady to disclose potential impeachment evidence of the sort

evidence relating to Evans staying in a hotel and being provided
with meals. Based on the 2008 jury's verdict, Callahan should have
been granted qualified immunity on the hotel issue under the first
prong of the qualified immunity inquiry. However, even if the 2009
jury's verdict on this point were permissible, Callahan should have
been granted qualified immunity on that verdict under the second
prong of the analysis, as I explain in this section.

-60-
at issue here. Indeed, it is not clearly established today. See,

e.g., Reid v. Simmons, 163 F. Supp. 2d 81, 84 (D.N.H. 2001)

(describing "the circumstances under which police officers may be

held civilly liable for Brady violations" as "a matter of

considerable uncertainty"), aff'd, 47 Fed. App'x 5 (1st Cir. 2002)

(per curiam). Compare Jean v. Collins, 221 F.3d 656, 660 (4th Cir.

2000) (en banc) (Wilkinson, J., concurring in the judgment) ("[T]o

speak of the duty binding police officers as a Brady duty is simply

incorrect. The Supreme Court has always defined the Brady duty as

one that rests with the prosecution."), with Newsome v. McCabe, 256

F.3d 747, 752-53 (7th Cir. 2001) ("The Brady principle was

announced in 1963, and we [have] applied it . . . to affirm a hefty

award of damages against [police] officers who withheld exculpatory

information in 1981.").

Both of the parties and the trial judge conceived of the

housing and money issues as Brady issues throughout the district

court proceedings.22 For example, at the pretrial conference before

22
This treatment was distinct from the parties' and the
court's view of Drumgold's allegations that Callahan had
manufactured evidence and convinced Evans to give false testimony.
Although the framing of these latter allegations was inconsistent
throughout the parties' various filings, they were frequently
understood as involving due process rights other than those defined
by Brady. The hotel and money issues, by contrast, were
consistently treated as Brady issues. Callahan's arguments about
the jury instructions on state of mind, cited by the majority, were
premised on the assumption that Brady applied to police officers
under Callahan's circumstances, an assumption later negated by
Haley (a case decided in 2011, after both of Drumgold's trials were
over).

-61-
the 2008 trial, the district court described one of the "principal

constitutional rights" at issue in the case as "Brady violations."

In both 2008 and 2009, Drumgold relied on Brady (and on Kyles -- a

case that post-dated Callahan's alleged actions) in requesting jury

instructions on a police officer's duty to disclose evidence to the

prosecution. Before the 2008 trial, the district court issued a

document titled "Proposed Brady Instruction." In the charge

conference preceding the 2008 jury instructions, Callahan's counsel

engaged in a lengthy discussion with the court regarding the lack

of clarity about how to apply Brady to the situation in Drumgold's

case. In Callahan's renewed motion for judgment as a matter of law

following the 2009 trial, and in Drumgold's opposition to that

motion, the parties argued for or against entering judgment for

Callahan on the basis of whether a Brady violation had occurred.

The district court echoed this understanding at the hearing on

Callahan's motion, and a Brady theory was the basis of the court's

denial of qualified immunity. See Drumgold, 806 F. Supp. 2d at

409, 417-19.

The district court's reason for denying immunity was

error, as the majority admits. Because Callahan was not subject to

a clearly established Brady duty in 1989, any alleged violation of

Brady's dictates cannot be the basis for denying Callahan qualified

immunity. The district court's reasoning cannot survive our

decision in Haley. On this point, the majority and I agree.

-62-
 However, the majority then attempts to rescue the

district court's qualified immunity ruling by instead relying on a

line of pre-Brady cases that neither the parties nor the trial

judge ever used to support their arguments about the hotel

evidence. In fact, these cases -- primarily Mooney v. Holohan, 294

U.S. 103, 112-13 (1935) (per curiam), and Pyle v. Kansas, 317 U.S.

213, 216 (1942) -- are not even cited in Drumgold's brief before

this court.23

There are a number of problems with the majority's

argument. First, the Mooney line of cases is an afterthought, not

briefed by the parties nor explicated in the record. It is unfair

to Callahan to deny immunity based on an argument that was not

preserved and as to which he had no notice. See DeMayo v. Nugent,

517 F.3d 11, 15 (1st Cir. 2008) (stating that defendants who had

used one Fourth Amendment theory to justify their actions before

the district court could not "switch their theories on appeal" to

a different Fourth Amendment reasoning); United States v. Slade,

980 F.2d 27, 31 (1st Cir. 1992) (rejecting argument that "only new

facts and not new arguments about those facts are prohibited from

debuting in the court of appeals" and concluding that "the

23
In 2008, Drumgold did request two jury instructions based
on these cases, but they both addressed the allegation that
Callahan had manufactured Evans's testimony, not the allegation
that he had withheld evidence of benefits. Mooney and Pyle are
otherwise absent from Drumgold's pleadings both in the district
court and in this appeal.

-63-
raise-or-waive rule applies with full force when an appellant tries

to present a new theory about why facts previously placed on record

are determinative"). This court may not create an argument for a

party and may not deny immunity based on a different theory than

that presented at trial. Such restraint is particularly important

in the context of qualified immunity, which, after all, encompasses

immunity from having to go to trial at all.

The majority's rejoinder that a mere citation to Brady

without a citation to Mooney and Pyle suffices is off point.24

Callahan lacked fair notice of the argument that the hotel evidence

-- without more -- implicated a Mooney-based due process right. As

explained above, all involved in the trial believed that the hotel

evidence issue was governed by Brady. It is only the majority

which has recharacterized the hotel claim as a non-Brady claim.

The majority appears to take the position that this

distinction among various due process arguments means Brady does

not govern. Not so. As we stated in Haley, it is necessary to

distinguish Brady-based claims from Mooney-based claims when

conducting a qualified immunity analysis. See 657 F.3d at 46. The

two categories do not always cover the same types of claims,

because they implicate two different facets of a criminal

24
This is not about whether Callahan lacked fair notice that
Drumgold had alleged a due process violation based on the
intentional use of (non-hotel and cash) false evidence, a claim
that, if proved, could have fallen within the scope of Mooney and
Pyle.

-64-
defendant's due process rights: under Mooney, the right to be free

from a deliberately contrived conviction, and under Brady, the

right to receive material exculpatory evidence known to the

prosecution regardless of the prosecutor's good or bad faith.

The majority recognizes that this court has been "careful

to distinguish" between the principles of Mooney and Brady. Yet

the majority then goes on to elide this very distinction by

treating "Drumgold's invocation of Brady as shorthand for his full

complement of due process rights." This conflation of the two

types of due process rights does not comport with our precedent.

The only possible way to connect Drumgold's explicitly Brady-based

claims regarding the hotel to his apparently Mooney-based claims

regarding intentional framing would be to treat the hotel evidence

as proof that Callahan had induced Evans to give perjured

testimony. But, as I detail below, both juries found precisely to

the contrary: they rejected the allegation that Callahan had

elicited false statements from Ricky Evans about Evans's

observations on the night of the murder. Without even this tenuous

connection to Mooney, all that is left is a Brady claim, which is

exactly how the parties argued the hotel question and how the

district court decided Callahan's motion for judgment as a matter

of law following the final 2009 verdict. That is why it is

inappropriate for this court to now insert a Mooney argument where

none existed before -- and even more, to do so to defeat immunity.

-65-
 On this basis alone, Mooney and Pyle cannot provide a

justification for denying Callahan immunity. But even if one were

to accept arguendo that Mooney and Pyle may be brought late to the

case, and the theory of liability altered on appeal, the juries'

findings preclude the conclusion that these cases defeat Callahan's

argument for qualified immunity. Under the facts as found by both

the 2008 and 2009 juries, a reasonable police officer in Callahan's

position in 1989 would not have known that his actions ran afoul of

Mooney and Pyle, and, in fact, would have had every reason to think

they did not.

The majority states that Mooney and Pyle identified a due

process violation where the state procures a conviction by the

knowing use of perjured testimony and the deliberate suppression of

exculpatory evidence.25 See Mooney, 294 U.S. at 112-13; Pyle, 317

U.S. at 216. Since the rule of these cases was clearly established

25
The majority characterizes this principle as "the deliberate
suppression aspect of Brady." But Mooney and Pyle, having preceded
Brady, cannot fairly be called an "aspect" of the latter case.
While the Brady Court did describe its holding as an "extension" of
Mooney and Pyle, see 373 U.S. at 86, the earlier cases stand for
their own previously established proposition, which is independent
of the later development of Brady and its progeny. As I have
explained above, there are important differences between the due
process rights identified in each line of cases.
In Mooney, the Court held that, after exhaustion of state
remedies, the federal writ of habeas corpus is available to state
prisoners who assert, with some colorable support, that state
prosecutors knowingly used perjured testimony against them and then
knowingly suppressed evidence which could have been used to counter
the perjured testimony. See 294 U.S. at 109-10. Pyle, a very
short opinion, merely states that such allegations are sufficient
to state a claim for habeas corpus. See 317 U.S. at 215-16.

-66-
in 1989, the majority reasons, Callahan is not entitled to

qualified immunity, because he deliberately suppressed evidence.

That is not what the juries' findings establish. While, in my

view, Callahan was entitled to qualified immunity as a legal matter

when the district court erroneously denied it on Brady grounds, the

juries' verdicts certainly meant he was entitled to immunity.

Drumgold's original complaint alleged that Callahan had

fed Evans details of the crime and had "suggested" that Evans

select Drumgold as the shooter from an array of photographs. The

complaint separately alleged that Callahan had promised Evans

assistance with his pending criminal charges and had failed to

disclose the hotel or cash assistance.26 But unlike in other cases

where, because of their procedural postures, we have had to accept

such allegations in the light most favorable to the plaintiffs,

see, e.g., Haley, 657 F.3d at 46; Limone v. Condon, 372 F.3d 39, 43

(1st Cir. 2004), here we have the benefit of a jury's findings upon

a fully developed record. As material to the purported Mooney and

Pyle theory and the immunity question, those findings rejected all

of Drumgold's relevant allegations.

The 2008 jury found that Callahan had not manufactured

evidence, withheld evidence, or procured false statements regarding

Evans's observations on the night of the murder, Evans's stay in

26
The complaint did not allege that disclosure of the
information about benefits would have revealed the allegedly
manufactured testimony.

-67-
the hotel, or the disposition of Evans's criminal cases. That jury

also rejected allegations that Callahan had manufactured evidence

or procured false statements with regard to Mary Alexander and

Tracie Peaks. These findings alone required immunity to be

granted, as I explain.

The 2009 jury did not reconsider the allegations relating

to witnesses other than Evans, and it found again that Callahan had

not obtained any false statements from Evans regarding the night of

the murder and had not withheld evidence relating to Evans's

criminal charges. The 2009 jury did find that Callahan had

withheld evidence regarding the housing and money provided to

Evans. But as the majority has explained, withholding information

about $20 was no constitutional violation at all.

The juries' findings clearly demonstrate that this is not

a case about the deliberate creation of false evidence, the knowing

submission of perjured testimony, or the attempt to frame an

unwitting suspect -- that is, the types of misconduct contemplated

by Mooney and Pyle. See, e.g., Limone, 372 F.3d at 44 (applying

Mooney and Pyle to deny dismissal on qualified immunity grounds

where plaintiff credibly alleged that police officers had developed

a key witness's perjured testimony in order to cover for the real

murderers). Rather, it is a case about affirmative disclosure

obligations.

-68-
 Mooney and Pyle did not clearly establish a rule

governing what a police officer must affirmatively disclose;

indeed, Brady itself recognized that the earlier cases did not

establish affirmative disclosure obligations, as it described its

own holding as "an extension" of Mooney. 373 U.S. at 86. Nothing

in Mooney or Pyle would have put Callahan on notice that the

Constitution required him to disclose that Evans had been housed at

a hotel. In fact, that is a common accommodation to secure the

attendance at trial of a prosecution witness, and hardly surprising

information to the criminal bar.

In Limone, we held that, as of 1967, it was clearly

established under Mooney that police officers were prohibited from

"deliberately fabricating evidence and framing individuals for

crimes they did not commit." 372 F.3d at 45, 47-48. A reasonable

officer in Callahan's position in 1989 would not have viewed the

alleged nondisclosure of the hotel accommodations as falling within

that proscription. Such an officer would have viewed those actions

as, if anything, falling under Brady, and no contemporaneous case

law held to the contrary.

The Supreme Court has recently reiterated that to deny

qualified immunity, "existing precedent must have placed the

statutory or constitutional question beyond debate." Ashcroft v.

al-Kidd, 131 S. Ct. 2074, 2083 (2011). The majority's conclusions

cannot be squared with this command.

-69-
 Although Mooney and Pyle may support a denial of

qualified immunity where, at the motion to dismiss stage, the

plaintiff has credibly alleged that the police committed a

particularly egregious act of deliberately concealing material

exculpatory evidence from prosecutors, see Haley, 657 F.3d at 49-

51, this is not such a case. Nor is it even close to being such a

case. The juries' findings do not permit any inference that

Callahan's actions were part of an attempt to frame Drumgold

through perjured testimony. Because the juries rejected the claim

that Callahan had procured false statements from Evans about the

night of the murder, the framing theory must fall away. If

Callahan did not induce Evans to lie, the hotel lodging could not

have been evidence of an inducement to lie.

Further, in the instances where the juries did find that

Callahan withheld evidence, they made no express finding that

Callahan acted with the purpose of suppressing such evidence. The

holdings of Mooney, Pyle, and their progeny prohibit behavior that

is characterized by specific intent: they hold that state actors,

knowing that certain evidence or testimony is false, must not

deliberately use that evidence for the purpose of obtaining a

tainted conviction.27 Because 42 U.S.C. § 1983 does not provide a

27
See Mooney, 294 U.S. at 112 ("[D]ue process . . . cannot be
deemed to be satisfied . . . if a state has contrived a conviction
through the pretense of a trial which in truth is but used as a
means of depriving a defendant of liberty through a deliberate
deception of court and jury by the presentation of testimony known

-70-
source of substantive rights, but rather provides "a method for

vindicating federal rights elsewhere conferred," Baker v. McCollan,

443 U.S. 137, 144 n.3 (1979), a § 1983 plaintiff who alleges a

violation of the constitutional principle recognized in Mooney and

Pyle must prove that the defendant had the state of mind those

cases require. See Graham v. Connor, 490 U.S. 386, 394 (1989)

("The validity of the [§ 1983] claim must . . . be judged by

reference to the specific constitutional standard which governs

that right."). Given all of the ambiguity as to disclosure

obligations outlined above, as well as the juries' findings, this

record requires that immunity be granted.

It is clear that there was no finding of specific intent.

Not only were the district court's jury instructions on state of

to be perjured."); Pyle, 317 U.S. at 215-16 ("Petitioner's papers
are inexpertly drawn, but they do set forth allegations that his
imprisonment resulted from perjured testimony, knowingly used by
the State authorities to obtain his conviction, and from the
deliberate suppression by those same authorities of evidence
favorable to him."); Napue v. Illinois, 360 U.S. 264, 269 (1959)
(recognizing "[t]he principle that a State may not knowingly use
false evidence, including false testimony, to obtain a tainted
conviction"); Limone, 372 F.3d at 45 ("[T]hose charged with
upholding the law are prohibited from deliberately fabricating
evidence and framing individuals for crimes they did not commit.");
Haley, 657 F.3d at 49 ("Deliberate concealment of material evidence
by the police, designed to grease the skids for false testimony and
encourage wrongful conviction, unarguably implicates a defendant's
due process rights."). Compare Brady, 373 U.S. at 87 (specifying
that the due process right recognized in that case applies
"irrespective of the good faith or bad faith of the prosecution").

-71-
mind confusing or even contradictory in both trials,28 but because

the court stated that it was supposed to be giving a Brady

instruction, the particular state of mind requirements of Mooney

and Pyle never entered the picture. The 2008 verdict slip, which

essentially exonerated Callahan, made no reference to his state of

mind at all. The 2009 verdict slip asked whether Callahan

"intentionally or recklessly" withheld evidence, so the jury could

have found liability without finding specific intent.29

28
In 2008, the trial judge told the jury that in order to find
a § 1983 violation, "it's not necessary to find that the defendants
had any specific intent to deprive the plaintiff of his
constitutional rights[.] . . . [T]he plaintiff is entitled to
relief if the defendant intended the actions which resulted in a
violation of his constitutional right." Yet the judge later
instructed that "[i]n order to prevail on a claim that defendants
suppressed exculpatory evidence, the plaintiff must prove that one
or both of the defendants knew of certain material exculpatory
evidence and intentionally and deliberately withheld the
information from the prosecutor." Callahan's counsel pointed out
this contradiction in a colloquy just before closing arguments and
objected to the instructions after they were given. In the 2009
trial, the judge first instructed the jury that the § 1983 charge
required Drumgold to show "that the defendant either intentionally
or recklessly committed the action which then resulted in a
violation of the plaintiff's constitutional rights," then that
Callahan would be liable if he "knowingly and deliberately withheld
any material exculpatory evidence from the prosecutor."
29
I do not agree with the majority's suggestion that
recklessness is sufficient to satisfy Mooney's (and related cases')
state of mind requirement. The case that the majority cites for
this proposition, Tennison v. City and County of San Francisco, 570
F.3d 1078 (9th Cir. 2009), addressed the state of mind required to
show a Brady-based § 1983 violation in a situation where Brady was
held to apply to police inspectors. See id. at 1087-88. As
detailed above, the Mooney and Pyle standard is distinct from the
Brady standard. The fact that Callahan invoked "recklessness" in
his memorandum of law regarding jury instructions is of no moment
when the standard he invoked was inapplicable.

-72-
 Beyond that, the evidence at trial showed that, in 1989,

Callahan had informed at least one member of the district

attorney's office about Evans's staying in the hotel, although he

apparently did not tell the specific prosecutor in the Drumgold

murder trial. See Drumgold, 806 F. Supp. 2d at 410-11 & nn.5-6.

This evidence of disclosure demonstrates that Callahan was not

deliberately hiding the information from the district attorney's

office in order to procure Drumgold's conviction.30

Under these circumstances, it unduly strains the

principle recognized in Mooney and Pyle to hold that a reasonable

officer in Callahan's position would have known that failing to

disclose the hotel evidence would be a violation of Drumgold's due

process rights. Where, as here, the jury's findings do not permit

30
In denying Callahan's 2009 post-trial motion for qualified
immunity, the district court relied on the theory that Callahan had
failed to fulfill his Brady obligation because he had reported the
hotel information to the wrong prosecutor. Drumgold, 806 F. Supp.
2d at 418-19. This was incorrect under Brady and is even more so
under Mooney and Pyle.
The answer to the question of to whom (and how) a police
officer ought to disclose potentially exculpatory evidence was not
clearly established in 1989, and it is still not clearly
established today. Neither party, nor the district court, provided
controlling authority or even anything approaching a consensus of
persuasive authority on this issue. See Wilson v. Layne, 526 U.S.
603, 617 (1999). There was no support for denying qualified
immunity on this basis, even under the district court's Brady-based
reasoning. And under the majority's non-Brady theory, if a
reasonable officer in Callahan's position truthfully disclosed
evidence to the district attorney's office -- even if the
disclosure were later adjudged to be legally insufficient -- he
would reasonably believe that he was not violating Mooney and
Pyle's prohibition of intentional framing.

-73-
a theory of intentional framing, nor include a finding of the

requisite knowledge or intent, the pre-Brady cases are not on

point. To hold otherwise is to blur the line between Brady's no-

fault nondisclosure obligation and Mooney and Pyle's proscription

against the knowing and deliberate use of false evidence.

This is exactly the kind of situation for which qualified

immunity was designed, even against the background of Haley and

Limone. Callahan's circumstances are a far cry from those alleged

in those two cases, where plaintiffs claimed that the police were

"intentionally framing an accused person" by a "deliberate attempt

to secure a conviction, without regard to actual guilt or

innocence," Haley, 657 F.3d at 46 -- not that the police disclosed

evidence in a less-than-thorough manner. The doctrine of qualified

immunity "protects all state actors except 'the plainly incompetent

[and] those who knowingly violate the law.'" Haley, 657 F.3d at 47

(quoting Malley v. Briggs, 475 U.S. 335, 341 (1986)). The juries'

findings reveal that Callahan does not fall into either category.

Remanding the case for yet a third trial, when Callahan was clearly

entitled to qualified immunity no later than the first trial,

denies him the benefit of those juries' findings, in violation of

his Seventh Amendment rights and his immunity rights. Callahan is

entitled to qualified immunity, and judgment should enter for him

on that basis.

-74-
B. The Scope of the 2009 Retrial

The district court erred in ordering a retrial of the

hotel issue before the second jury, abusing its discretion. It did

so in derogation of Callahan's Seventh Amendment rights. The

retrial jury should not have been permitted to reexamine the

question of whether Callahan withheld the hotel evidence, since

that question was resolved in his favor during the 2008 trial.

That question was not so inextricably intertwined with the money

issue as to require a full retrial. The district court should have

ordered a retrial on the money issue only: that is, the court

should have asked the second jury to determine whether Callahan had

deliberately suppressed evidence that he gave Evans money, the

amount of such money (if any), whether the sum was material, and

whether the withholding of that information caused Drumgold's

injury.

In the 2008 trial, the district court divided the jury

deliberations into two phases. In the first phase (the "violation"

phase), the jury was to decide, inter alia, whether Callahan

violated Drumgold's right to a fair trial by withholding evidence

that Callahan arranged free housing for Evans and/or that Callahan

gave Evans "substantial amounts of money."31 If the jury answered

31
The relevant special verdict questions read as follows:

Has the Plaintiff, Shawn Drumgold, proven by a
preponderance of the evidence that Defendant Timothy
Callahan violated his right to a fair trial by

-75-
"yes" to either or both of these questions, the second phase (the

"causation" phase) would ask the jury to decide whether such

withholding was the cause of Drumgold's injury. The 2008 jury thus

potentially faced four questions: (1) whether Callahan withheld

housing evidence; (2) whether Callahan withheld money evidence; (3)

whether withholding the housing evidence caused Drumgold's injury;

and (4) whether withholding the money evidence cause Drumgold's

injury.

In the first phase, the 2008 jury determined that

Callahan had not withheld evidence regarding the housing but had

withheld evidence regarding the money; that is, it answered "no" to

question 1 and "yes" to question 2. Following the verdict in the

first phase, the parties declined the district court's suggestion

that the jury be instructed to clarify what amount of money

constituted a "substantial amount." In the second phase of

deliberations, the jury never reached question 3 because it had

answered "no" to question 1. It then hung on question 4: whether

withholding exculpatory evidence from prosecutors,
manufacturing evidence, and/or obtaining false statements
regarding Ricky Evans being housed at a hotel and
provided with meals?

Has the Plaintiff, Shawn Drumgold, proven by a
preponderance of the evidence that Defendant Timothy
Callahan violated his right to a fair trial by
withholding exculpatory evidence from prosecutors,
manufacturing evidence, and/or obtaining false statements
regarding Ricky Evans being given substantial amounts of
money?

-76-
Callahan's provision of money to Evans had caused Drumgold's

injury.

After the district court declared a mistrial, Callahan

moved for entry of final judgment as to, inter alia, the housing

issue, and he sought to restrict the scope of the retrial to the

causation question with regard to the money. Because the housing

issue was separate from the money issue and had been decided by a

jury, it should not have been retried.

The district judge, however, denied Callahan's motion,

stating that a limited retrial which did not reopen the housing

questions was not feasible because

[a] second jury would obviously have to be
instructed that Callahan had violated
Drumgold's civil rights by giving him
"substantial amounts of money" and not
disclosing it. The jury would be left with
the ambiguity of what "substantial money"
meant -- an issue wholly unresolved in the
first trial, notwithstanding the Court's
efforts to seek further clarification. And
the only way to resolve that ambiguity would
be to relate each side's evidence concerning
the treatment of Ricky Evans . . . . In
short, all aspects of Ricky Evans's portion of
this case would be involved.

On this basis, the district judge allowed the retrial jury to

revisit both "violation" questions -- that is, whether Callahan had

failed to disclose that he had given housing benefits to Evans and

whether he had failed to disclose that he had given money to Evans.

This rationale does not in fact explain why the housing issue

should have been subject to retrial.

-77-
 A partial retrial is permissible under the Seventh

Amendment when some, but not all, issues in a case have been

properly and conclusively resolved by a jury verdict. Gasoline

Prods. Co. v. Champlin Refining Co., 283 U.S. 494, 500 (1931). In

order for a partial retrial to be appropriate, it must "clearly

appear[]" that the remaining issues are "so distinct and separable

from the others that a trial of [them] alone may be had without

injustice." Id.

The decision whether to grant a full or a partial retrial

is generally committed to the discretion of the trial judge, see

Sprague v. Boston & Me. Corp., 769 F.2d 26, 28 (1st Cir. 1985), and

thus our review is for abuse of discretion, see Winn v. Lafayette

Town House, 839 F.2d 835, 837 (1st Cir. 1988); Sprague, 769 F.2d at

28. An error of law, here an error as to the dictates of Gasoline

Products, constitutes an abuse of discretion. A district court may

also abuse its discretion when it misapprehends the nature of the

relationship between the issues sought to be retried, Winn, 839

F.2d at 836-37, or when it does not give an adequate basis in the

record for its determination that a full retrial is necessary,

Crane v. Consol. Rail Corp., 731 F.2d 1042, 1049-51 (2d Cir. 1984)

(Friendly, J.). All three of these types of problems appear in the

district court's retrial order.

First, neither of the primary rationales for ordering a

full rather than a partial retrial are present here. Generally, a

-78-
full retrial is necessary when (1) the original verdict represented

a compromise among jurors who could not otherwise agree on multiple

issues, or (2) the error infecting one issue in the verdict likely

spread to the others. See 11 Wright & Miller, Federal Practice &

Procedure § 2814 (2012); see also Phav v. Trueblood, Inc., 915 F.2d

754, 767-68 (1st Cir. 1990) (explaining compromise verdicts and

citing cases). Indeed, in Vizzini v. Ford Motor Co., 569 F.2d 754

(3d Cir. 1977), the court observed that partial retrials should be

granted "only in those cases where it is plain that the error which

has crept into one element of the verdict did not in any way affect

the determination of any other issue." Id. at 760 (quoting Romer

v. Baldwin, 317 F.2d 919, 922-23 (3d Cir. 1963)) (internal

quotation marks omitted).

Significantly, when a jury answers special

interrogatories rather than giving a general verdict, courts have

more readily preserved the jury's findings and ordered partial

rather than full retrials. See, e.g., LaPlante v. Am. Honda Motor

Co., 27 F.3d 731, 738 (1st Cir. 1994) (remanding for new trial only

on liability and not on damages, where damages award was distinct

and separable, "particularly" because the first jury answered

"detailed interrogatories" on how it arrived at the damages

number). In Crane v. Consolidated Rail Corp., 731 F.2d 1042, Judge

Friendly noted that when a trial court uses special

interrogatories, the "trial or reviewing court may be reasonably

-79-
certain that an erroneous verdict was reached independent of

another verdict," and unless there are "obvious inconsistencies,"

the court should presume that each of the jury's answers is a "good

faith response[] to the question[] presented." Id. at 1050

(quoting Akermanis v. Sea-Land Serv., Inc., 688 F.2d 898, 906 (2d

Cir. 1982)) (internal quotation mark omitted).

There were no inconsistencies here, much less obvious

ones. Neither party has argued that the 2008 jury was confused

when it gave its special verdict answers, or that the jury's

indecision on causation as to the money "infected" its decision

about the lack of violation as to housing. Nor was that the

rationale of the trial judge in the order on the scope of the

retrial.

This is also not a situation where, considering the

totality of the circumstances, the issues were too "interwoven" to

retry one issue separately. See 11 Wright & Miller § 2814. This

case does not involve the much more common retrial issue of the

"interwovenness" of liability and damages, see id., nor even the

(somewhat more analogous) interwovenness of violation and

causation, see, e.g., Bohack Corp. v. Iowa Beef Processors, Inc.,

715 F.2d 703, 709 (2d Cir. 1983) (affirming district court's order

of full retrial on Robinson-Patman Act claims after first jury

found that defendant violated the Act but hung on whether violation

caused plaintiff's injury). Rather, the problem is the purported

-80-
interwovenness of two distinct substantive issues -- i.e., the

hotel and the cash.

In ordering a retrial on both of those issues, the

district court departed from Gasoline Products Co. v. Champlin

Refining Co., 283 U.S. 494, the very case that established the

constitutional propriety of partial retrials. That case

demonstrates that separate claims involving a shared set of facts

can fairly be, and should be, separated on retrial. In Gasoline

Products, the plaintiff's claim alleged breach of a license

contract, and the defendant's counterclaim alleged that the license

contract was executed in consideration for separate oral and

written contracts that the plaintiff had breached. Id. at 495-96.

While the Supreme Court held that liability and damages on the

counterclaim were too "interwoven" to retry separately, id. at 500,

it did not so hold with regard to the relationship between the

claim and counterclaim, even though a retrial on the counterclaim

would likely have included factual allegations relating to the

license contract.

Similarly, in Drumgold's case, the first jury's answers

to the special verdict questions show that the first jury was able

to separate the two "violation" issues even though they involved a

shared set of facts. In other words, while it may have risked

confusion to ask the second jury to evaluate causation on the money

question without also evaluating violation on the money question,

-81-
there is no indication that a retrial jury would have been confused

if it were asked to evaluate the entire money question without

being allowed to reopen the hotel disclosure issue. The presence

of an overlapping factual background to distinct issues is not

enough to overcome the Seventh Amendment and retry an issue already

determined by a jury.

If necessary in order to fairly present Drumgold's case,

evidence as to the circumstances under which Callahan gave cash to

Evans, including some evidence of the housing, could have been

admitted at the second trial without having to reopen the hotel

violation issue. The jury could have been instructed that Callahan

had not withheld evidence about the housing and had not violated

any rights in that regard, and that that issue was not open; any

hotel evidence was limited to providing background. Juries are

often asked to accept evidence for one purpose but not another, see

Fed. R. Evid. 105; United States v. Tse, 375 F.3d 148, 157-58 (1st

Cir. 2004), and we presume that juries will follow the instructions

that the district court gives them, United States v. Griffin, 524

F.3d 71, 78 (1st Cir. 2008). Here, the district court even

recognized this possibility, initially stating that the second

trial could "cover the entire story [of Evans and Callahan], but

the only question that that jury would be asked is about the

money." Indeed, the judge followed an almost identical course with

-82-
regard to the use in the second trial of evidence about Tracie

Peaks and Mary Alexander.

The trial judge also could have avoided jury confusion by

limiting the introduction in the second trial of certain evidence

specifically pertaining to the hotel, on the ground that, given a

retrial of limited scope, such evidence's probative value was

substantially outweighed by the risk of confusing or misleading the

jury into considering questions not before it. See Fed. R. Evid.

403.

The district court's order on the scope of the retrial

does not seriously consider these possibilities, nor explain the

relevant distinctions between the violation and causation

questions, nor point to evidence in the record supporting the

proposition that retrying both the hotel and money issues in their

entirety was necessary to prevent jury confusion. The order

explains why a causation-only retrial would be unworkable, but it

fails to explain why that means that the hotel-violation question

should be reopened. The court merely states that "all aspects of

Ricky Evans's portion of this case would be involved" in a retrial

because of the ambiguity of the first jury's finding of

"substantial amounts" of money. The order does not explain why

this situation would make the hotel issue inextricable from the

money issue. See Crane, 731 F.2d at 1050 ("The memorandum opinion

of the district judge . . . casts little light on why a retrial of

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the damages issue was thought to be necessary."). This was not

merely, as the majority suggests, the lack of an "extensive

elaboration"; it was a failure to justify the basic choice at the

heart of the district court's decision, a choice which I think

cannot be justified.

This outcome constitutes an abuse of discretion. In Winn

v. Lafayette Town House, 839 F.2d 835, the appellate court reversed

the district court's grant of a full retrial on both liability and

damages because the district court confused the relationship

between comparative fault (a liability issue) and equitable

reduction (a damages issue) in a case under a state comparative

negligence statute. Id. at 836-37. In Crane, Judge Friendly

reversed the district court's grant of a new trial on both

liability and damages because the court had not shown an adequate

basis in the record for its determination that the jury's verdict

on damages was tainted by an error she correctly discerned in the

liability verdict. 731 F.2d at 1049-51. Likewise, in this case,

the district court abused its discretion by failing to provide a

reasoned basis for the legal distinctions underlying its ruling on

the scope of the retrial.

As Judge Friendly cogently noted,

[S]omething more is required to upset a
verdict than the conclusory language . . .
used by the district judge. While we must
guard against usurping the trial court's
prerogative with respect to seriously
erroneous jury verdicts, we must be equally

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 diligent in protecting the jury's function.
Direction of a new trial on an issue
determined by a jury without the articulation
of a sufficient basis for such action effects
. . . "a denigration of the jury system[,] and
to the extent that new trials are granted the
judge takes over, if [s]he does not usurp, the
prime function of the jury as the trier of the
facts."

Id. at 1051 (quoting Lind v. Schenley Indus., Inc., 278 F.2d 79, 90

(3d Cir. 1960)). In light of the fact that the first jury was able

to separate the hotel and money violation questions, the district

court's explanation for why the second jury would be unable to do

so was inadequate to support the decision to set aside a legitimate

jury verdict.

The second trial should have been limited to the money

issue only. Since Callahan's provision of $20 to Evans was not

material, the second jury's verdict on the money issue cannot

support a finding of liability for Callahan. He was entitled to

judgment as a matter of law.

III.

I dissent from the majority's decision to remand this

case for a third trial. I would reverse the district court's

denial of Callahan's renewed motion for judgment as a matter of law

and its denial of qualified immunity, and order entry of judgment

for Callahan.

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