Limone v. Condon

United States Court of Appeals
For the First Circuit

No. 03-2130
03-2212

PETER J. LIMONE ET AL.,

Plaintiffs, Appellees,

v.

DENNIS CONDON ET AL.,

Defendants, Appellants.

APPEALS FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

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

Before

Selya, Circuit Judge,

Gibson,* Senior Circuit Judge,

and Howard, Circuit Judge.

John M. Connolly, with whom Michael B. Meyer and Meyer,
Connolly, Sloman & MacDonald LLP were on brief, for appellant
Condon.
James M. Chernetsky, Assistant Corporation Counsel, City of
Boston, with whom Thomas R. Donohue, Assistant Corporation Counsel,
was on brief, for appellant Walsh.
Michael Avery, with whom Juliane Balliro, Ronald J. Snyder,
and Perkins, Smith & Cohen, LLP were on consolidated brief, for
appellees Limone and Tameleo et al.

*
The Honorable John R. Gibson, of the Eighth Circuit, sitting
by designation.
 John Foskett, with whom Richard D. Bickelman, Lawrence R.
Holland, and Deutsch Williams Brooks Derensis & Holland, P.C. were
on brief, for appellees Werner (Executrix of the Estate of Louis
Greco) et al.

June 10, 2004
 SELYA, Circuit Judge. These interlocutory appeals follow

the entry of an order denying motions to dismiss based on qualified

immunity. See Limone v. United States, 271 F. Supp. 2d 345, 349

(D. Mass. 2003). The appellants exhort us to reverse that decree

or, alternatively, to exercise pendent appellate jurisdiction over

another (potentially dispositive) issue. We conclude that at this

stage of the proceedings (i) the district court appropriately

rejected the appellants' qualified immunity defenses, and (ii) the

scope of these interlocutory appeals should not be broadened to

encompass an unrelated issue. Consequently, we affirm the denial

of qualified immunity and remand for further development of the

facts.

I. BACKGROUND

These appeals arise out of two separate but closely

related suits, consolidated in the district court. An explication

of the underlying facts requires the juridical equivalent of an

archeological dig. The relevant events date back almost four

decades to the 1965 murder of Edward "Teddy" Deegan and the 1968

convictions of several individuals, including Peter Limone, Louis

Greco, and Henry Tameleo, for that slaying. Notwithstanding the

jury's verdict and the subsequent rejection of their direct

appeals, see Commonwealth v. French, 259 N.E.2d 195 (Mass. 1970),

the three men steadfastly maintained their innocence and mounted a

campaign to clear their names. The facts, as now revealed,

-3-
seemingly support their claims of innocence. The instant actions

seek damages against those allegedly responsible for their wrongful

convictions.

For present purposes, the operative pleadings are the two

amended complaints.1 Those complaints are separate but similar.

We compile the following account of the facts by reading the

amended complaints in tandem, drawing all reasonable inferences

therefrom in the light most agreeable to the plaintiffs (as the

parties opposing the motions to dismiss). We note, however, that

the district court recounted the factual allegations set out in the

amended complaints at some length, see Limone, 271 F. Supp. 2d at

349-53, and we urge those who hunger for greater detail to consult

that rescript.

The plaintiffs — Limone (the only surviving member of the

trio), the estates of Greco and Tameleo, and various relatives

asserting derivative claims — have sued both a quondam agent of the

Federal Bureau of Investigation (FBI) and a retired Boston police

officer.2 The amended complaints allege that the former FBI agent,

1
There are two suits rather than three because Limone and
Tameleo's heirs and personal representatives joined in the filing
of a single action. Greco's executrix and heirs chose to sue
separately.
2
The plaintiffs actually sought damages against several other
parties as well, asserting a salmagundi of federal and state-law
theories. See Limone, 271 F. Supp. 2d at 348 n.3 (identifying the
defendants and delineating the claims). One such party, former FBI
agent H. Paul Rico, died on January 16, 2004. When no personal
representative came forward on his behalf, we dismissed his pending

-4-
Dennis Condon, and the former Boston detective, Frank L. Walsh,

framed Limone, Greco, and Tameleo, assisted the Commonwealth of

Massachusetts in wrongly convicting them on a charge of first-

degree murder, participated in a coverup, and allowed the three

innocent men to languish in prison for years.3 In relevant part,

the complaints assert Bivens claims against Condon, see Bivens v.

Six Unknown Named Agents of the FBN, 403 U.S. 388, 397 (1971), and

section 1983 claims against Walsh, see 42 U.S.C. § 1983 (2000).

The central theme of these claims is the accusation that Condon and

Walsh, inter alios, violated the Constitution by developing one

Joseph "Baron" Barboza as a witness for the prosecution in spite of

their knowledge that Barboza would perjure himself and falsely

implicate three innocent men in Deegan's murder.

Condon and Walsh (appellants here) moved to dismiss both

amended complaints based on the doctrine of qualified immunity.

They simultaneously moved to dismiss the suits brought on behalf of

Greco and Tameleo on the ground that those plaintiffs had failed to

satisfy the favorable termination requirement (described infra Part

III) laid down by the Supreme Court in Heck v. Humphrey, 512 U.S.

appeal without prejudice. The other defendants are not parties to
these interlocutory appeals.
3
Although a Massachusetts state court judge originally
sentenced the trio to death, the United States Supreme Court
subsequently vacated that disposition. See, e.g., Limone v.
Massachusetts, 408 U.S. 936 (1972). Eventually, all the sentences
were commuted to life imprisonment.

-5-
477, 486-87 (1994). The district court rebuffed these initiatives.

As to qualified immunity, the court found it inconceivable that, at

the time of the relevant events, "a reasonable law enforcement

officer would have thought it permissible to frame somebody for a

crime he or she did not commit." Limone, 271 F. Supp. 2d at 365-

66. As to Heck, the court found the favorable termination

requirement satisfied vis-à-vis the Greco and Tameleo plaintiffs on

a theory of constructive reversal and, alternatively, on a theory

of estoppel. Id. at 361. These timely appeals ensued.

II. THE QUALIFIED IMMUNITY DEFENSE

Condon and Walsh have appealed from the district court's

order denying their motions to dismiss based on qualified immunity.

An interlocutory appeal lies from such an order where, as here,

qualified immunity turns on abstract legal questions. Stella v.

Kelley, 63 F.3d 71, 74 (1st Cir. 1995). We review the district

court's order de novo, directing dismissal of the complaints "only

if it is clear that no relief could be granted under any set of

facts that could be proved consistent with the allegations."

Hishon v. King & Spaulding, 467 U.S. 69, 73 (1984).

We begin with first principles. Qualified immunity is a

judge-made doctrine. The elementary justification for the doctrine

is that public officials performing discretionary functions should

be free to act without fear of retributive suits for damages except

when they should have understood that particular conduct was

-6-
unlawful. Davis v. Scherer, 468 U.S. 183, 195 (1984). That

awareness depends, in large part, on the extent to which legal

rules were clearly established when the official acted. Harlow v.

Fitzgerald, 457 U.S. 800, 818 (1982). It follows that an inquiry

into the reasonableness of an officer's conduct must focus both on

what the officer did (or failed to do) and on the state of the law

at the time of the alleged act or omission. Savard v. Rhode

Island, 338 F.3d 23, 28 (1st Cir. 2003) (en banc), cert. denied,

124 S. Ct. 1074 (2004); Iacobucci v. Boulter, 193 F.3d 14, 21 (1st

Cir. 1999). In the end, the qualified immunity defense should

prevail unless the unlawfulness of the challenged conduct was

"apparent" when undertaken. Anderson v. Creighton, 483 U.S. 635,

640 (1987).

Although these appeals involve claims based on two

different legal theories — Bivens and section 1983 — the analytical

framework is, for our purposes, identical. See Wilson v. Layne,

526 U.S. 603, 609 (1999). Drawing on Supreme Court precedent, see,

e.g., Saucier v. Katz, 533 U.S. 194, 200-02 (2001), we have

developed a three-part algorithm for assessing whether a federal or

state actor is entitled to qualified immunity. We consider (i)

whether the plaintiff's allegations, if true, establish a

constitutional violation; (ii) whether the constitutional right at

issue was clearly established at the time of the putative

violation; and (iii) whether a reasonable officer, situated

-7-
similarly to the defendant, would have understood the challenged

act or omission to contravene the discerned constitutional right.

Savard, 338 F.3d at 27. More often than not, proper development of

the law of qualified immunity is advanced if courts treat these

three questions sequentially. See Saucier, 533 U.S. at 201;

Fabiano v. Hopkins, 352 F.3d 447, 453 (1st Cir. 2003).

A

The threshold question in a qualified immunity appeal

centers on the current state of the law. On a motion to dismiss,

this question asks whether the facts alleged, viewed in the light

most favorable to the complaining party, show that the officer's

conduct violated some constitutional right. Siegert v. Gilley, 500

U.S. 226, 232-33 (1991); Santana v. Calderón, 342 F.3d 18, 23 (1st

Cir. 2003). We turn directly to that question.

The amended complaints paint a sordid picture. Although

the misdeeds described therein are many and varied, the plaintiffs'

claims may be distilled into two basic allegations: first, that

the appellants purposefully suborned false testimony from a key

witness; and second, that the appellants suppressed exculpatory

evidence in an effort both to cover up their own malefactions and

to shield the actual murderers (one of whom was being groomed as an

FBI informant). The complaints weave these allegations together.

From that platform, the plaintiffs asseverate that an individual's

-8-
right not to be convicted by these tawdry means — his right not to

be framed by the government — is beyond doubt.

This is easy pickings. Although constitutional

interpretation occasionally can prove recondite, some truths are

self-evident. This is one such: if any concept is fundamental to

our American system of justice, it is that those charged with

upholding the law are prohibited from deliberately fabricating

evidence and framing individuals for crimes they did not commit.

See, e.g., Devereaux v. Abbey, 263 F.3d 1070, 1074-75 (9th Cir.

2001) (en banc). Actions taken in contravention of this

prohibition necessarily violate due process (indeed, we are unsure

what due process entails if not protection against deliberate

framing under color of official sanction). Thus, we resist the

temptation to expound needlessly upon the first element in the

qualified immunity catechism and simply pronounce that requirement

satisfied.

B

The second question in the algorithm asks whether the

state of the law at the time of the putative violation afforded the

defendant fair warning that his or her conduct was

unconstitutional. See Hope v. Pelzer, 536 U.S. 730, 741 (2002).

In the circumstances of this case, that question requires us to

determine whether the right not to be framed by law enforcement

agents was clearly established in 1967 — the year in which the

-9-
appellants are alleged to have started twisting their investigation

to target the plaintiffs. We think that it was.

From a jurisprudential perspective, our delving goes back

some seventy years. In Mooney v. Holohan, 294 U.S. 103 (1935) (per

curiam), the Supreme Court explained that due process

is a requirement that cannot be deemed to be
satisfied by mere notice and hearing 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 to
be perjured.

Id. at 112. The following term, the Court reaffirmed that the Due

Process Clause forbids convictions predicated on deliberate

deceptions. See Brown v. Mississippi, 297 U.S. 278, 286 (1936).

Six years later, the Court needed only a single paragraph and a

citation to Mooney to buttress its conclusion that "allegations

that [the petitioner's] 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 . . . sufficiently charge

a deprivation of rights guaranteed by the Federal Constitution."

Pyle v. Kansas, 317 U.S. 213, 216 (1942). Given these precedents,

it is not surprising that, as early as 1951, this court described

Mooney's core premise as "well-settled." Coggins v. O'Brien, 188

F.2d 130, 138 (1st Cir. 1951).

-10-
 In 1959, the Supreme Court confirmed that the Mooney

right covered circumstances in which "the State, although not

soliciting false evidence, allows it to go uncorrected when it

appears." Napue v. Illinois, 360 U.S. 264, 269 (1959). In raising

the bar to this modest level, the Court recognized that its prior

case law "established that a conviction obtained through use of

false evidence, known to be such by representatives of the State,

must fall under the Fourteenth Amendment." Id. (citing Mooney).

The Court viewed such a right as "implicit in any concept of

ordered liberty." Id. And in 1967 — the very year that the

violations in the instant case are alleged to have begun — Justice

Stewart, writing for a unanimous Court, reiterated the point:

More than 30 years ago this Court held that
the Fourteenth Amendment cannot tolerate a
state criminal conviction obtained by the
knowing use of false evidence. There has been
no deviation from that established principle.

Miller v. Pate, 386 U.S. 1, 7 (1967) (citations omitted).

The appellants resist this impressive array of authority

on two fronts. First, they accuse the plaintiffs and the district

court of having defined the right in question too broadly. In

their view, modeling the right as a right to be free from a

contrived conviction — a right not to be framed by the government

— casts too wide a net. They suggest instead that the plaintiffs'

allegations should be squeezed into a more circumscribed mold and

read as setting forth a Brady violation. See Brady v. Maryland,

-11-
373 U.S. 83, 87 (1963) (holding that "the suppression by the

prosecution of evidence favorable to an accused upon request

violates due process where the evidence is material either to guilt

or to punishment"). Having erected this straw man, the appellants

then shred it: although Brady was decided prior to 1967, they

assert that it was not clearly established then (indeed, it may not

be clearly established today) that the duties imposed by Brady

apply to law enforcement officers under circumstances in which the

prosecutor is unaware of the contrivance. See, e.g., Brady v.

Dill, 187 F.3d 104, 114 (1st Cir. 1999) (suggesting that a law

enforcement officer "sometimes may be liable" for a failure to

reveal "known exculpatory information") (emphasis supplied); 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. Appx. 5 (1st Cir. 2002) (per curiam),

cert. denied, 124 S. Ct. 237 (2003).

It is certainly true that the manner in which a right is

defined can make or break a qualified immunity defense. Courts

must be careful not to permit an artful pleader to convert the

doctrine of qualified immunity into a hollow safeguard simply by

alleging a violation of an exceedingly nebulous right. See Wilson,

526 U.S. at 614-15; Hatch v. Dep't for Children, Youth & Their

Families, 274 F.3d 12, 20 (1st Cir. 2001). Courts must be equally

-12-
careful, however, not to permit a defendant to hijack the

plaintiff's complaint and recharacterize its allegations so as to

minimize his or her liability.

Here, the amended complaints, fairly read, are not

susceptible to the appellants' animadversions. The right defined

by the plaintiffs and recognized by the district court does not

even approach the level of generality thought to be impermissible.

See, e.g., Anderson, 483 U.S. at 639 (discussing what level of

generality is permissible with respect to due process violations);

Hatch, 274 F.3d at 20 (same, with respect to "the right to familial

integrity" and "the parental interest in the care, custody, and

control of children").

The appellants' argument has an even deeper flaw: it

rests on a self-serving mischaracterization of the factual

allegations set out in the amended complaints. The plaintiffs have

not pleaded a separate claim that their rights were violated merely

by the appellants' failure to divulge some discrete piece of Brady

evidence. Rather, they have eschewed such a course in favor of a

more sweeping accusation that the appellants actively participated

in a plot to secure and sustain unjust convictions against innocent

men. Though this scheme includes suballegations that occasionally

involve Brady violations (e.g., suppression of exculpatory

information), the overall charge cannot be shoehorned into the

relatively narrow confines of the Brady rubric. As the district

-13-
court put it, the "individual allegations of non-disclosure" are

not meant to be self-sustaining, but, rather, "are an integral part

of the overall story." Limone, 271 F. Supp. 2d at 366.

We have said before that "[t]he sum of an evidentiary

presentation may well be greater than its constituent parts." N.

Heel Corp. v. Compo Indus., Inc., 851 F.2d 456, 470 (1st Cir. 1988)

(quoting Bourjaily v. United States, 483 U.S. 171, 180 (1987)).

That aphorism is pertinent here. Taken as a whole, the unsavory

enterprise chronicled in the amended complaints is too multifaceted

to fit within the integument of the Brady right. In contrast, it

fits comfortably within the more expansive contours of the right

described in Mooney. To restrict the plaintiffs to a Brady claim

would require us to disregard the forest and focus single-mindedly

on a particular tree. The qualified immunity doctrine does not

compel courts to take so myopic a view.

The appellants next attempt to tackle Mooney head-on.

Even if Mooney furnishes the appropriate benchmark, this thesis

runs, the circumstances in Mooney and its pre-1967 progeny are

materially distinguishable from those alleged by the plaintiffs.

According to the appellants, these were cases in which the falsity

of the testimony was uncontroverted — not cases in which public

officials simply pressed a view of the facts which, though

ultimately proven wrong, was not obviously contrived. In a modest

variation on this theme, the appellants add that, as of 1967, there

-14-
was no clearly established right to be free from conviction based

on testimony known only by law enforcement officers (and not by the

prosecuting attorney) to be false.

We find these contentions unconvincing. The first, which

at bottom challenges the sufficiency of the pleadings, is easily

defeated. These appeals were brought following a decision on

motions to dismiss under Fed. R. Civ. P. 12(b)(6), and, as such,

all that is required is that the amended complaints allege acts

sufficient to constitute framing and knowledge on the part of the

appellants. See Educadores Puertorriqueños en Acción v. Rey

Hernández, ___ F.3d ___, ___ (1st Cir. 2004) [No. 03-1588, slip op.

at 12] (rejecting a heightened pleading standard for civil rights

cases). While the plaintiffs eventually will have to adduce

adequate evidence to support the claim that Condon and Walsh knew

Barboza's story was apocryphal, their bare allegations of knowledge

suffice at this embryonic stage of the proceedings. See id.

The appellants' second contention fares no better.

Although the amended complaints do not allege guilty knowledge on

the part of the prosecuting attorney, no such averment is necessary

to state an actionable claim. The duty that Mooney and its pre-

1967 progeny established — a duty to refrain from procuring

convictions by the presentation of testimony known to be perjurious

— extended in 1967, as now, to law enforcement officers generally.

The Supreme Court ascribed this duty broadly to the sovereign and

-15-
its agents. See, e.g., Napue, 360 U.S. at 269 (attributing the

duty to "representatives of the State"); Pyle, 317 U.S. at 216

(attributing the duty to "State authorities"); Mooney, 294 U.S. at

112 (attributing the duty to "the State"). It strains credulity to

suggest that FBI agents and police officers, duly sworn to uphold

the law, do not fall within the compass of these proscriptions.

We are not the first court to reach this conclusion.

Citing Pyle, the Fifth Circuit ruled to this effect in 1969. See

Smith v. Florida, 410 F.2d 1349, 1350-51 (5th Cir. 1969)

(explaining that police violate the right described in Mooney if

they suborn perjury even though they do so without the prosecutor's

knowledge). Even more telling, the Third Circuit concluded in 1958

— nine years before Condon and Walsh are alleged to have embarked

on their nefarious course of conduct — that Pyle had settled this

very issue. See Curran v. Delaware, 259 F.2d 707, 713 (3d Cir.

1958). An examination of the Pyle record disclosed to the Third

Circuit's satisfaction "that the prosecuting officer was in no wise

a party to or cognizant of the perjured testimony given by certain

witnesses of the State of Kansas or of the fact that the law

enforcement officers had taken steps to procure false testimony

favorable to the prosecution." Id. Although the prosecutor had

been kept in the dark, the Pyle Court determined that the

allegations, if true, would abridge the right described in Mooney.

See Pyle, 317 U.S. at 216; see also Curran, 259 F.2d at 713

-16-
(relying on Pyle, reaching the identical conclusion, and finding

such a violation). We agree with this interpretation of Pyle and,

thus, reject the appellants' argument that the prosecutor's

complicity was a sine qua non of a Mooney claim in 1967.

Nor does the plaintiffs' inability to identify a pre-1967

scenario that precisely mirrors the scandalous facts of this case

ensure the success of the appellants' claims of qualified immunity.

There is no requirement that the facts of previous cases be

materially similar to the facts sub judice in order to trump a

qualified immunity defense. Hope, 536 U.S. at 739-41; Hall v.

Ochs, 817 F.2d 920, 925 (1st Cir. 1987). General statements of the

law are capable of conveying fair warning. See United States v.

Lanier, 520 U.S. 259, 270-71 (1997); Davis v. Rennie, 264 F.3d 86,

114 (1st Cir. 2001), cert. denied, 535 U.S. 1053 (2002). It

follows logically that, in some situations, "a general

constitutional rule already identified in the decisional law may

apply with obvious clarity to the specific conduct in question."

Lanier, 520 U.S. at 271. So it is here.

That ends this phase of our archival journey into the

annals of constitutional jurisprudence. We conclude, without

serious question, that Mooney and its pre-1967 progeny provided

reasonable law enforcement officers fair warning that framing

innocent persons would violate the constitutional rights of the

falsely accused.

-17-
 C

Since the relevant right and rule were clearly

established and the contours of the right were sufficiently well-

defined at the critical time (1967), we must proceed to the third

and final step in the qualified immunity pavane. This part of the

inquiry considers whether it would have been clear to an

objectively reasonable official, situated similarly to a particular

appellant, that the actions taken or omitted contravened the

clearly established right. See Saucier, 533 U.S. at 202; Hatch,

274 F.3d at 20; see also Anderson, 483 U.S. at 639 (emphasizing

that the standard is an objective one). While the first two parts

of the inquiry deal with abstract legal rules, the final step

depends on the facts of a given case. Hatch, 274 F.3d at 24.

On an appeal from an order denying a motion to dismiss —

a situation in which the court of appeals is required to credit the

allegations of the complaint — the first two steps will frequently

go a long way toward resolving the third. This case aptly

illustrates that point. Given the facts that are set out in the

amended complaints, we have scant difficulty in concluding that it

should have been transparently clear to a reasonable officer

situated similarly to either Condon or Walsh that his actions

violated the constitutional rights of Limone, Greco, and Tameleo.

We start with Condon. Both complaints allege that Condon

was reliably informed that Deegan had been executed by a crew that

-18-
included Joseph Barboza, Vincent Flemmi, Roy French, Ronald

Cassesso, and Joseph Martin; that he knew, based on conversations

with Barboza, that Barboza would commit perjury by swearing not

only that Flemmi had no involvement in the murder but also that

three innocent men (Limone, Greco, and Tameleo) had helped to

perpetrate the crime; that he nonetheless developed Barboza as a

witness and turned him over to the Suffolk County district

attorney, knowing that Barboza's false testimony would be used to

prosecute Limone, Greco, and Tameleo for a crime they did not

commit; that he failed to disclose exculpatory evidence before,

during, and after the trial; and that he interceded on Barboza's

behalf in a subsequent murder prosecution with a view toward

ensuring Barboza's continued silence and covering up his own

misdeeds. It is plain beyond hope of contradiction that a

reasonable officer, confronted with the same circumstances, would

have understood that this behavior infracted the plaintiffs'

constitutional rights.

To be sure, Condon argues that he deserves qualified

immunity in spite of these allegations because the amended

complaints describe vital reports as having been received by

another FBI agent (H. Paul Rico) and/or by the FBI's Boston office

— not by Condon personally. We do not think that this is an

entirely fair characterization of the amended complaints. Even if

it were, the plaintiffs, on a Rule 12(b)(6) motion, are entitled to

-19-
have all plausible inferences drawn in their favor. See

Educadores, ___ F.3d at ___ [slip op. at 2]; LaChapelle v.

Berkshire Life Ins. Co., 142 F.3d 507, 508 (1st Cir. 1998). The

amended complaints reveal that Condon was stationed at the FBI's

Boston office, that Rico was his partner, and that both were

members of the joint federal-state task force assembled to

investigate the murder. These facts support a plausible inference

that the two shared the reports pertaining to the investigation.

The factual allegations anent Walsh are similar, although

not identical, to those involving Condon. Both complaints allege

that Walsh knew, based in part on inconsistent statements that he

took from Barboza, that Barboza would falsely attest that Limone,

Greco, and Tameleo murdered Deegan; that he nonetheless

participated in the development of Barboza as a witness with

respect to the prosecution of the plaintiffs; that he failed to

disclose exculpatory evidence before, during, and after the trial

(including a calendar allegedly furnished to him that would have

provided powerful support for Greco's alibi defense); and that he

engaged in numerous artifices to conceal the identities of the

actual killers.

Walsh labels these allegations "conclusory" and laments

that the amended complaints present no fact-specific averments

showing that he, as a municipal police officer, was privy to the

-20-
information gleaned from FBI informants and interviews. This

counterattack fails.

The factual allegations pertaining directly to Walsh,

combined with the plausible inferences that must be drawn in the

plaintiffs' favor, suffice to survive a motion to dismiss. See

Educadores, ___ F.3d at ___ [slip op. at 2]. Walsh was an active

member of the joint federal-state task force — a fact that supports

a plausible inference that he was privy to information gathered by

the other members of the team (including Condon and Rico). It

should have been obvious to a reasonable officer, confronted with

these circumstances, that this behavior abridged the plaintiffs'

constitutional rights.

In sum, we share the district court's view that, by 1967,

"[no] reasonable law enforcement officer would have thought it

permissible to frame somebody for a crime he or she did not

commit." Limone, 271 F. Supp. 2d at 365-66. Taking the facts

alleged in the amended complaints as true, we hold that neither

appellant is entitled to qualified immunity at this juncture. We

add, of course, that this ruling does not preclude the appellants

from reasserting that defense, on a more fully developed record,

either at summary judgment or at trial.

III. THE FAVORABLE TERMINATION DEFENSE

Our work here is not done. Limone succeeded in having

his conviction set aside in 2001, see Commonwealth v. Limone, 2001

-21-
WL 30494, at *8 (Mass. Super. Ct. 2001), and the district attorney

subsequently declined further prosecution. Greco and Tameleo died

in prison before they could secure similar remediation. In their

motions to dismiss, the appellants argued that the lack of

favorable terminations precludes the Greco and Tameleo plaintiffs

from pursuing their claims for damages. See Heck v. Humphrey, 512

U.S. 477, 486-87 (1994) (holding that a plaintiff, in order to

recover damages for an allegedly unconstitutional conviction, must

show a favorable termination of the underlying conviction);

Figueroa v. Rivera, 147 F.3d 77, 80 (1st Cir. 1998) (same). The

district court rejected this defense, holding that the Greco and

Tameleo plaintiffs could ride piggyback on the vacation of Limone's

conviction to satisfy the favorable termination requirement under

a theory of "constructive reversal," or in the alternative, that

any failure to secure favorable termination was excused by

allegations of "government wrongdoing that effectively denied

access to post-conviction remedies." Limone, 271 F. Supp. 2d at

361.

The appellants ask us to review this determination here

and now. That request runs headlong into the general rule that

only final judgments and orders are immediately appealable in civil

cases. See Espinal-Dominguez v. Puerto Rico, 352 F.3d 490, 495

(1st Cir. 2003) (citing 28 U.S.C. § 1291). This rule admits of

exceptions, however, and one judge-made exception allows for

-22-
interlocutory review of an order rejecting a qualified immunity

defense so long as the order turns on a purely legal question.

See, e.g., Stella, 63 F.3d at 73-74. The appellants assert that we

may use this exception as a vehicle to review the Heck issue as

well. We demur.

Federal courts long have recognized that interlocutory

review of a denial of qualified immunity "does not in and of itself

confer jurisdiction over other contested issues in the case."

Roque-Rodriguez v. Lema Moya, 926 F.2d 103, 105 (1st Cir. 1991).

To overcome this obstacle, the appellants invite us to embrace the

seldom-used doctrine of pendent appellate jurisdiction. See Swint

v. Chambers County Comm'n, 514 U.S. 35, 50-51 (1995); Nieves-

Márquez v. Puerto Rico, 353 F.3d 108, 123 (1st Cir. 2003). We

decline the invitation.

The Supreme Court repeatedly has cautioned that

exceptions to the final judgment rule should be narrowly construed.

See, e.g., Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S.

863, 868 (1994). In an effort to avoid needless encroachments on

the final judgment rule, we have been quite sparing in our

endorsement of pendent appellate jurisdiction. See Fletcher v.

Town of Clinton, 196 F.3d 41, 55 (1st Cir. 1999) (noting that the

exercise of pendent appellate jurisdiction is "discouraged");

Roque-Rodriguez, 926 F.2d at 105 n.2 (classifying this restraint as

"self-imposed"). Thus, we have required that, at a bare minimum,

-23-
a party promoting the exercise of pendent appellate jurisdiction

demonstrate either that the pendent issue is inextricably

intertwined with the issue conferring the right of appeal or that

review of the pendent issue is essential to ensure meaningful

review of the linchpin issue. See, e.g., Nieves-Márquez, 353 F.3d

at 123; Suboh v. Dist. Atty's Office of the Suffolk Dist., 298 F.3d

81, 97 (1st Cir. 2002); see also Clinton v. Jones, 520 U.S. 681,

707 n.41 (1997). Because these two considerations were limned by

the Court in Swint, 514 U.S. at 51, we sometimes refer to them as

the Swint criteria.

Here, the linchpin issue and the pendent issue cannot

fairly be described as intertwined, let alone inextricably

intertwined. Whereas the former (qualified immunity) focuses

principally on the appellants' conduct leading up to the

plaintiffs' convictions, the latter (favorable termination) entails

an examination of post-conviction events. The fact that we already

have conducted an exhaustive review of the district court's

qualified immunity ruling without needing to touch upon the

favorable termination issue, see supra Part II, makes manifest this

lack of imbrication. By the same token, it conclusively proves

that the exercise of pendent appellate jurisdiction is not

essential to our ability to conduct meaningful review of the

linchpin issue. On that score alone, this case is an unfit

candidate for the invocation of pendent appellate jurisdiction.

-24-
 The appellants strive to parry this thrust by arguing

that failure to satisfy the Swint criteria should bar the exercise

of pendent appellate jurisdiction only when the party appealing the

linchpin issue and the party appealing the pendent issue are

different. They posit that where, as here, the same parties seek

review of both issues, pendent appellate jurisdiction may be

justified on the basis of fairness and efficiency concerns. See,

e.g., Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d

1020, 1026-27 (D.C. Cir. 1997) (exercising pendent appellate

jurisdiction on that basis when the same parties sought review of

both issues); Gilda Marx, Inc. v. Wildwood Exercise, Inc., 85 F.3d

675, 679 & n.4 (D.C. Cir. 1996) (declining to read fulfillment of

the Swint criteria as an absolute condition precedent to the

exercise of pendent appellate jurisdiction). They tell us that

exercising pendent appellate jurisdiction in the instant case would

allow for the early resolution of a potentially dispositive issue,

thus catering to fairness and efficiency concerns.

We think that the appellants' position ignores reality.

There is no sound reason why the identity of the parties should

have decretory significance in deciding whether to exercise pendent

appellate jurisdiction. This court has used the Swint criteria as

the benchmark for pendent appellate jurisdiction in all sorts of

cases, including cases in which the party appealing the pendent

issue was also appealing the linchpin issue. See, e.g., Nieves-

-25-
Márquez, 353 F.3d at 123; Suboh, 298 F.3d at 97. So too the Second

Circuit. See Rein v. Socialist People's Libyan Arab Jamahiriya,

162 F.3d 748, 757 (2d Cir. 1998) (stating that "pendent issues

raised by the party that has the right to bring an interlocutory

appeal are at least as great a threat to the final-order scheme as

are pendent issues raised by other parties"). Several other courts

of appeals have likewise endorsed a universal application of the

Swint criteria. See id. at 758 (collecting cases). Consequently,

we hold explicitly that when a party who has the right to bring an

interlocutory appeal on one issue attempts simultaneously to raise

a second issue that ordinarily would be barred by the final

judgment rule, we will not exercise appellate jurisdiction over the

pendent issue unless one of the Swint criteria is satisfied.

Given this paradigm, instances demanding the exercise of

pendent appellate jurisdiction are likely to be few and far

between. This is not one of them. We conclude, therefore, that it

would be ultracrepidarian — and wrong — for us to exercise pendent

appellate jurisdiction over the favorable termination issue just

for the Heck of it.

IV. CONCLUSION

We summarize succinctly. At this early stage of the

litigation, the appellants have not demonstrated their entitlement

to qualified immunity. Because that is the only issue properly

before us on these interlocutory appeals, we need go no further.

-26-
Affirmed.

-27-