Sabein Burgess v. Gerald Goldstein

997 F.3d 541

• Court: Court of Appeals for the Fourth Circuit
• Decided: May 14, 2021
• Docket: 19-1600
• Status: Published

Opinion

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 19-1600

SABEIN BURGESS,

Plaintiff - Appellee,

v.

GERALD ALAN GOLDSTEIN,

Defendant - Appellant,

and

BALTIMORE POLICE DEPARTMENT; DETECTIVE WILLIAM RITZ; DANIEL VAN GELDER; OFFICER DALE WEESE; OFFICER RICHARD PURTELL; DETECTIVE/SGT. STEVEN LEHMAN; DETECTIVE ROBERT PATTON; DETECTIVE NEVERDON; UNKNOWN EMPLOYEES OF THE BALTIMORE POLICE DEPARTMENT; MAYOR AND CITY COUNCIL OF BALTIMORE; KELLY MILES, Officer; JOHN BOYD, Officer; JOHN SKINNER, Officer; DEAN PALMERE, Officer; DETECTIVE GERALD ALAN GOLDSTEIN

Defendants.

No. 19-1602

Plaintiff – Appellant,

v. GERALD ALAN GOLDSTEIN, Detective; BALTIMORE POLICE DEPARTMENT; STEVEN LEHMAN, Detective/Sgt.; MAYOR AND CITY COUNCIL OF BALTIMORE; WILLIAM RITZ, Detective; DANIEL VAN GELDER,

Defendants – Appellees,

DALE WEESE, Officer; ROBERT PATTON, Detective; UNKNOWN EMPLOYEES OF THE BALTIMORE POLICE DEPARTMENT; KELLY MILES, Officer; JOHN BOYD, Officer; JOHN SKINNER, Officer; DEAN PALMERE, Officer; RICHARD PURTELL, Officer; NEVERDON, Detective,

Appeals from the United States District Court for the District of Maryland, at Baltimore. Richard D. Bennett, District Judge. (1:15-cv-00834-RDB)

Argued: December 11, 2020 Decided: May 14, 2021

Before FLOYD, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed in part and reversed in part and remanded by published opinion. Judge Quattlebaum wrote the opinion in which Judge Floyd and Judge Thacker joined.

ARGUED: Michael Patrick Redmond, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellant/Cross-Appellee. Jon Loevy, LOEVY & LOEVY, Chicago, Illinois, for Appellee/Cross-Appellant. ON BRIEF: Andre M. Davis, Rachel A. Simmonsen, BALTIMORE CITY LAW DEPARTMENT, Baltimore, Maryland, for Appellant/Cross-Appellee. Gayle Horn, Steven Art, Theresa Kleinhaus, LOEVY & LOEVY, Chicago, Illinois, for Appellee/Cross-Appellant.

2 QUATTLEBAUM, Circuit Judge:

The facts underlying this appeal are dramatic and emotional. They involve unsavory

characters from the Baltimore drug underworld, a brutal murder, a wrongful conviction

and a $15 million judgment against a Baltimore Police Department officer for withholding

and fabricating evidence. But the questions presented to us are not materially different from

those we face in much more mundane cases. Was there sufficient evidence to support the

jury’s verdict? Did the district court err in failing to give a requested jury instruction? And

did the district court allow inadmissible hearsay evidence?

Our answers to those questions are determined largely based on the standard of

review we must employ. Because there was evidence from which a reasonable jury could

have found police misconduct, we affirm the district court’s denial of motions for judgment

as a matter of law or a new trial under Rules 50 and 59 of the Federal Rules of Civil

Procedure. Because the district court’s jury instructions, taken as a whole, complied with

the law and the court’s earlier rulings, we find no error in them. And, although the district

court improperly admitted hearsay evidence, the error, in the context of the record as a

whole, was harmless. For those reasons, as more fully explained below, we affirm the

jury’s verdict and the district court’s denial of the Rule 50 and Rule 59 motions. But we do

reverse the district court’s dismissal of Burgess’ claim against the Baltimore Police

Department under Monell v. Department of Social Services of City of New York, 436 U.S.

658 (1978), as described below.

3 I.

Michelle Dyson was murdered late in the evening of October 5, 1994, at her home

in Baltimore. Sabein Burgess, Dyson’s boyfriend, was with Dyson at the home earlier that

evening but left to facilitate a drug deal. Before he left, he saw Dyson put her children to

bed. When he returned, he found the door of the home cracked, the front room ransacked

and Dyson shot in the basement. According to Burgess, he exited the home to seek help

from the police he had seen nearby, and, once he determined the police were no longer in

the area, he asked a neighbor to call 911. Burgess then returned to the basement to attend

to Dyson.

Around 10:27 p.m., the Baltimore Police Department (“BPD”) received a call about

a shooting at Dyson’s house. When dispatched officers arrived on the scene, they found

Burgess with Dyson’s body in the basement. Burgess was handcuffed and swabbed for

gunshot residue. The defendant, Gerald Goldstein, arrived on the scene around 10:45 p.m.,

where three or four uniformed officers were already present, and continued the

investigation of the crime scene as the lead detective.

The facts surrounding Dyson’s four young children at the home are heavily

disputed. Reports from BPD and the Department of Social Services (“DSS”) from the night

of the murder indicate that the children were upstairs sleeping at the time of the incident.

Further, of the thirteen officers dispatched to the crime scene, each of the eight known

officers who testified, or whose testimony was stipulated, denied speaking to Dyson’s

4 children on the night of the homicide. 1 But many years later, two of Dyson’s four children

said one or more uniformed BPD officers took them to the living room so they could get

dressed and then questioned them. A BPD officer took the children from the home to DSS,

then to the hospital where relatives took over care. But there is conflicting evidence as to

the exact time the children left the house. Certain records indicate the children were

removed from the house at 10:30 p.m. However, based on other records, the officer who

transported the children testified that the children left the scene at 11:23 p.m.

BPD officers interviewed Burgess the night of the murder at the home. Later, they

took him from the crime scene to the Homicide Unit at the police station for questioning

by Goldstein and another detective. Burgess’ statement to the detectives contained

inconsistencies about what he was doing before the murder. Nevertheless, he was released

that night.

As the investigation continued, the victim’s father, Ron Dyson, spoke to Goldstein’s

supervisor, Detective Sergeant Steven Lehmann. Lehmann recorded handwritten notes

from the call indicating that Mr. Dyson had been trying to reach Goldstein. His note, which

was referred to as “the Lehmann Note,” included the following notation: “Child Bryan?

Witnes[s] ‘get down basement.’” J.A. 2517. Importantly, one of Dyson’s children was

named Brian Rainey. Brian’s subsequent testimony in the civil trial about what he saw the

night his mother was murdered is critical to the issues before us.

1 BPD’s computer-assisted dispatch report reflects five unknown officers dispatched to the crime scene.

5 The Lehmann Note contained another notation: “[t]hinks a guy named ‘Little Man.’

Mother-in-Law got a call from jail saying ‘Little Man[’] did it.” J.A. 2517. As described in

more detail below, whether Little Man was known by the police to be an alternative suspect

is also important to the claims before us.

Goldstein’s homicide report included reports from other officers on the scene,

names of witnesses and details about the ongoing investigation. One of those reports noted

that the “victim’s four children who were asleep on the second floor were turned over to

the Department of Social Services.” J.A. 2459. This report is central to Burgess’ claim that

Goldstein fabricated evidence.

About one month after the murder, the BPD Trace Analysis Unit provided Goldstein

with the Gunshot Primer Residue Report indicating that, based on samples taken from the

backs of the thumbs and forefingers, gunshot primer residue was found on Burgess’ left

and right hand. The report acknowledged that “[t]here is a possibility that these residues

were transferred from the surface of a firearm or from an object which lay immediately

adjacent to a firearm during its discharge.” J.A. 2516. But it also explained that “[m]ost

probably, however, the subject’s hands were immediately adjacent to a discharging firearm

or were themselves used to fire the firearm within a few hours of (time) 11:05 P.M. . . .”

J.A. 2516.

A few days later, based on the conflicting statements Burgess gave about where he

went after he left Dyson’s house and the gunshot residue found on both hands, Goldstein

applied for and received a statement of charges leading to Burgess’ arrest for Dyson’s

murder. The day of his arrest, Burgess gave an additional interview. During the interview,

6 Goldstein asked Burgess about whether he knew someone named “Little Man.” Burgess

responded that “Little Man” was someone he knew but that he did not sell drugs for him

nor did he know his real name.

The State of Maryland grand jury charged Burgess with first degree murder, as well

as handgun charges. Burgess maintained his innocence, leading to a two-day trial in June

1995, where he was represented by defense attorney Gordon Tayback. The state presented

several witnesses including Goldstein, the gunshot residue technician and Dyson’s

neighbor whom Burgess summoned to call the police. Burgess did not testify at the trial or

present any witnesses. (J.A. 2402.) The jury found Burgess guilty of murdering Dyson and

all charges, and the trial court later sentenced him to life plus 20 years in prison.

Three years later, a man named Charles Dorsey, then serving a 45-year sentence for

attempted murder and armed robbery, confessed to killing Dyson. In 2013, Burgess filed a

Petition for Writ of Actual Innocence in the Circuit Court for Baltimore City, Maryland,

relying on several pieces of newly discovered evidence, including Dorsey’s confession,

concerns with the gunshot residue evidence and its interpretation and Brian—the victim’s

child—coming forward as a witness. Notably, Brian claimed that he was awakened the

night of the murder, saw a man force his mother into their basement and that the man was

not Burgess. The state did not oppose the Petition and the Circuit Court vacated the

conviction and granted a new trial. The state entered a nolle prosequi rather than conduct

a second trial. As a result, Burgess was released from prison.

7 II.

In 2015, Burgess sued the City of Baltimore, the BPD and a host of elected and non-

elected individuals, alleging violations of his federal and state civil rights which led to his

wrongful imprisonment for Dyson’s murder. Eventually, the defendants were pared down.

The claims against the City and its officials were dismissed. The claims against the BPD

were also dismissed except for a 42 U.S.C. § 1983 claim under Monell v. Department of

Social Services of City of New York, 436 U.S. 658 (1978), which alleged that the BPD was

liable for the conduct of its officers because that conduct was carried out pursuant to BPD

policies and procedures. Later, the district court bifurcated that claim from the claims

against the individual BPD officers and stayed discovery until the conclusion of the trial

against the officers.

The claims against the officers proceeded, but they were also pared down. By the

time the case went to the jury, the only remaining defendant was Goldstein. And the claims

against him were also narrowed. The claims submitted to the jury were that Goldstein: (1)

violated Burgess’ constitutional rights to a fair trial by concealing exculpatory evidence,

including that Brian saw a man other than Burgess enter the home and information from

the FBI about alternative suspects in violation of Brady v. Maryland, 373 U.S. 83 (1963);

(2) violated Burgess’ constitutional rights by fabricating a police report that stated that all

of the children were asleep at the time of the murder; (3) maliciously caused Burgess’

prosecution without probable cause; and (4) intentionally inflicted emotional distress on

Burgess. The first two claims were brought under the due process clauses of the federal

and state constitutions and the third and fourth claims were brought under Maryland state

8 law. But all claims centered around allegations that Goldstein withheld and fabricated

evidence.

After discovery, Goldstein moved for summary judgment. 2 The district court denied

the motion for the most part. But it granted the motion as to Burgess’ claim that Goldstein

violated his due process rights by withholding exculpatory evidence about an alternative

suspect named Howard Rice. In so ruling, the court held that there was no genuine dispute

that Burgess and his attorney were aware of potentially exculpatory information related to

Howard Rice.

Before trial, Goldstein moved to exclude documents obtained through a subpoena

to the FBI as inadmissible hearsay. These documents, which referenced “ITAR-Drug-

Related Murders” but which we refer to as the FBI Notes, were heavily redacted and did

not identify who wrote them. But they referred to the Dyson murder, suggesting that it was

drug-related, that there were other witnesses or potential suspects and, importantly, that the

information had been passed on to the case detective of the BPD-Homicide Unit. As noted

above, the BPD case detective assigned to the Dyson murder was Goldstein, though he was

not identified by name in the FBI Notes and the name of the detective was redacted. The

district court denied Goldstein’s motion to exclude the FBI Notes, determining that most

of the information in them was offered to show notice rather than for the truth of the matter

2 For the sake of completeness, other defendants who at that point were still in the case joined in this motion and the motion to exclude the FBI Notes, which is discussed below. 9 asserted and admitting the portions of the document that were offered for the truth of the

matter asserted under Federal Rule of Evidence 807, the residual hearsay exception.

After a ten-day trial, the jury returned a $15 million verdict in favor of Burgess.

Goldstein then moved for a new trial and/or to alter or amend judgment under Rule 59. He

also moved under Rule 50 for a judgment in his favor as to the four claims presented to the

jury. The district court denied the motions.

Goldstein appealed, raising the following four issues: first, whether the district court

erred in denying Goldstein’s Rule 50 motion seeking judgment notwithstanding the

verdict; second, whether the district court erred in denying Goldstein’s Rule 59 motion for

a new trial in view of the evidence presented at trial; third, whether the district court erred

in declining to give Goldstein’s proposed jury instruction that information about Howard

Rice should not be considered as part of the withholding claim; and fourth, whether the

district court erred in admitting a portion of the FBI Notes under Federal Rule of Evidence

807’s residual hearsay exception.

We dismissed Goldstein’s initial appeal for lack of jurisdiction and remanded to the

district court for resolution of the Monell claim. Burgess v. Goldstein, 763 F. App’x 301,

302 (4th Cir. 2019). The district court then dismissed the Monell claim with prejudice and

directed the clerk to close the case. The district court held that Burgess could not obtain

additional relief from the Monell claim because he had been awarded compensatory

damages and did not seek equitable relief. (J.A. 2295.) It further concluded that no such

equitable relief would be appropriate given that the constitutional deprivations at the heart

10 of this matter occurred over twenty-five years ago and the evidence presented at trial did

not support submission of the claim to the jury.

In addition to Goldstein’s current appeal, Burgess appeals the district court’s

dismissal of his Monell claim. We have jurisdiction pursuant to 28 U.S.C. § 1291.

III.

We first consider Goldstein’s argument that the district court erred in denying his

Rule 50 motion. Our standard of review is important. We review the denial of a Rule 50(b)

motion de novo. See First Union Commercial Corp. v. GATX Capital Corp., 411 F.3d 551,

556 (4th Cir. 2005). But we do so with deference towards the jury’s findings. “If, viewing

the facts in the light most favorable to the non-moving party, there is sufficient evidence

for a reasonable jury to have found in [the non-moving party’s] favor, we are constrained

to affirm the jury verdict.” Id. (internal quotation marks and citation omitted). “On such

appellate review we determine if a reasonable jury could have found the verdict. We do

not weigh evidence nor judge the credibility of witnesses.” Id. With this standard in mind,

we begin with the Brady claim based on withholding of evidence before turning to the

fabrication claim.

11 A.

Burgess alleges that Goldstein withheld information regarding Brian Rainey as a

witness and the Lehmann Note. 3 In Brady, the Supreme Court held that the prosecution’s

suppression of evidence that is favorable to an accused “violates due process where the

evidence is material either to guilt or to punishment, irrespective of the good faith or bad

faith of the prosecution.” 373 U.S. at 87. Following Brady, in Barbee v. Warden, Maryland

Penitentiary, 331 F.2d 842 (4th Cir. 1964), we held that a police officer’s failure to disclose

exculpatory evidence violates the Constitution as well. See also Owens v. Baltimore City

State’s Attorneys Office, 767 F.3d 379, 396 (4th Cir. 2014). However, police officers and

prosecutors have different obligations from one another with respect to the disclosure of

exculpatory evidence in this circuit. Id. at 396 n.6. In order to make out a claim that an

officer violated one’s constitutional rights by suppressing exculpatory evidence, Burgess

must prove that (1) the evidence at issue was favorable to him; (2) the officers suppressed

the evidence in bad faith; and (3) prejudice ensued. Id. at 396–97. But we have also held

that exculpatory information is not “suppressed” when a criminal defendant is already

aware of it. Barnes v. Thompson, 58 F.3d 971, 975–77 (4th Cir. 1995).

Goldstein claims that Burgess failed to introduce evidence from which a reasonable

jury could conclude that Goldstein withheld exculpatory evidence from the prosecutor in

3 Burgess also argues that the FBI Notes provide evidence that Goldstein withheld evidence of his communications with the FBI about Dyson’s murder. Goldstein argued in his Rule 50 motion below and to us on appeal that the FBI Notes do not provide evidence from which a jury could reasonably conclude Goldstein withheld evidence. However, as set forth below, we conclude the district court erred in admitting the FBI Notes. Therefore, we do not consider them for purposes of our Rule 50 or Rule 59 analysis. 12 Burgess’ murder trial. He further claims that Burgess failed to produce evidence from

which a reasonable jury could find that both Burgess and his attorney were unaware of the

non-disclosed evidence.

To begin, Goldstein’s homicide file, the prosecutorial file and Burgess’ attorney’s

file were not available in original form. Thus, the jury did not have the evidence of exactly

what Goldstein had and what was turned over. With that handicap, Burgess relied on

circumstantial evidence. Our question is whether he produced sufficient evidence for a jury

to conclude that Goldstein withheld information about Brian and the Lehmann Note.

1.

Goldstein first argues there was not sufficient evidence from which the jury could

have concluded that he withheld information about Brian being a witness. Goldstein

maintains that the record does not contain evidence that he knew Brian or any of the other

children were awake during the intrusion. For example, contemporaneous reports, such as

the ones from DSS and the BPD, indicate the children were asleep upstairs in the home and

that their mother was shot in the basement. Goldstein testified that Joyce Rogers, Dyson’s

mother and the children’s grandmother, “reinforced the fact that the children were asleep

during this incident.” J.A. 1057. She also added that no one was going to talk to the children

about the matter. Ron Dyson—the victim’s father—also recalled being told the children

were asleep and testified that he may have told the police that he understood Brian was

asleep. He testified that he did not come to find out that Brian was awake at the time of the

murder until “recent years.” J.A. 1279. Burgess also testified that the children were in the

13 bed asleep. And for his part, Goldstein said that he remembered being told the children

were asleep.

Goldstein acknowledges Brian’s testimony, as well as that of his sister, Tawanda

Dyson. Brian testified that he was awake and saw someone who was not Burgess “busting

in the house,” which caused him to run back to his room in fear. J.A. 1495. He also testified

that the police woke the children up and took them downstairs to question them. Brian was

unable to remember the exact questioning but testified that he told the police that his mom’s

boyfriend—Burgess—was not involved. Tawanda testified that her brother Brian told the

police that he saw someone in the house who was not Burgess.

But Goldstein insists that, based on the rest of their testimony, this evidence is

insufficient. Specifically, Brian and Tawanda testified that the officers in the house were

uniformed. Yet it is undisputed that Goldstein was a plain-clothes detective and was not

wearing a uniform on the night in question. Thus, Goldstein argues, even accepting Brian

and Tawanda’s testimony as true, Brian could not have talked with Goldstein, meaning

there is no evidence he had information about Brian being a potential witness.

Burgess, however, offers an alternative argument. He points to testimony from

Goldstein and other BPD officers that if another officer interviewed the children, they

would have reported the information to Goldstein as lead detective. Goldstein admitted that

he would have seen the children if they were present and awake when he was on the scene

due to the layout of the house and the nature of the investigation. The other officers testified

that if the children were interviewed, Goldstein would have been involved in doing so. And

Goldstein’s testimony that the children were gone before his arrival—meaning he could

14 not have interviewed them—was undermined by other evidence. Goldstein based his

testimony not on his memory, but on a report that the children were removed from the

home at 10:30 p.m. The officer who authored the report, however, clarified at trial that the

correct time was approximately 11:23 p.m. instead, as verified by other police

documentation. Thus, for at least 43 minutes, Goldstein and the children were in the house

together. According to Burgess, this means a jury could have concluded that Goldstein saw

the children and spoke to one or all of them there. While Goldstein acknowledges this

evidence, he counters that it is also insufficient because none of the officers who testified

said they interviewed the children.

Goldstein also maintains that in addition to being based on speculation, Burgess’

position hinges on testimony that, according to him, is plainly not credible. Brian waited

until 2012, 18 years after his mother’s murder, to tell anyone about what he later claimed

he witnessed and, when he finally revealed this information, he did not say anything about

telling the police what he saw. Only in 2015 did Brian disclose that he told the police what

he saw on the night of his mother’s murder. Goldstein also notes that Brian has given prior

inconsistent versions of his story about the night of the murder, has been previously

convicted of making a false statement to a law enforcement officer, maintains a father-son

relationship with Burgess and has been romantically involved with Burgess’ niece.

Appellant’s Br. at 7-8.

Based on all of this, Goldstein maintains that any inference that he learned of Brian

being awake and a potential exculpatory witness is too speculative for a jury to reasonably

rely on. He insists the jury would have to believe that Goldstein interviewed the children,

15 even though Brian and Tawanda said the officer with whom they spoke was uniformed and

he was not. Or the jury would have to believe that the children were interviewed by one of

the BPD officers on the scene who did not testify and that they, pursuant to policy, reported

that information to Goldstein even though Goldstein denies that occurred and no witness

says otherwise. Even considering the evidence in the light most favorable to Burgess, a

jury, according to Goldstein, could not reasonably base its decision on such speculative

inferences.

2.

Goldstein also argues that the Lehmann Note does not provide sufficient evidence

to support the jury’s withholding verdict. Burgess argued at trial that the note’s “Child

Bryan? Witnes[s] ‘get down basement’” language indicates Goldstein had information that

Brian Rainey was awake and that its “[t]hinks a guy named ‘Little Man.’ Mother-in-Law

got a call from jail saying ‘Little Man[’] did it” language indicates that someone nicknamed

Little Man might be an alternative suspect. J.A. 2517. Burgess argued Goldstein failed to

disclose this information to the prosecutor and, thus, to him.

In support of his Rule 50 motion, Goldstein asserts there is no evidence that the note

was withheld from the prosecutor or defense counsel. In fact, he contends the evidence

shows the information was disclosed. Specifically, he points to his testimony that it was

his practice to copy his entire file. He also points to a note from the prosecutor’s file that

said “brother—back room by himself—Sabein — told mother to go to basement.” J.A.

2366. This note, Goldstein argues, proves the prosecutor had the information about Brian,

meaning he either did not withhold it or, even if he did, there was no prejudice.

16 3.

Goldstein’s arguments are compelling. Indeed, Burgess’ case here appears thin. But

thin evidence is not the same as no evidence. And under our standard of review, we are

required to construe the evidence in the light most favorable to Burgess and to draw

reasonable inferences in his favor. If we do that, we conclude that Burgess introduced

enough evidence from which the jury could have inferred that Goldstein interviewed Brian,

who told him that he saw a man who was not Burgess enter the home, and that, despite this

knowledge, Goldstein wrote that all the children were asleep during the murder. That

evidence includes the testimony of Brian and Tawanda about being interviewed by the

officers and the testimony of Goldstein and the other officers that, if the children were

interviewed, Goldstein would have been involved. Goldstein is correct that Brian and

Tawanda said the interviewing officer was uniformed and he was not. But the jury could

have reasonably believed that either the children, who were very young at the time, were

mistaken on this issue or that, even if Goldstein was not uniformed, the officers with him

were.

Burgess also offered enough evidence from which the jury could have inferred that

another officer interviewed Brian and that the officer relayed that information to Goldstein,

who wrote that the children were asleep despite knowledge otherwise. 4 All the officers

4 Burgess must also introduce evidence from which a jury could reasonably conclude Goldstein withheld evidence in bad faith. Bad faith means that an officer “intentionally withheld the evidence for the purpose of depriving the plaintiff of the use of that evidence during his criminal trial.” Jean v. Collins, 221 F.3d 656, 663 (4th Cir. 2000). We find no reversable error in the district court’s conclusion that the evidence of Brian’s

17 testified that the BPD policy called for Goldstein to receive information about any such

interviews. While it is correct that all the officers who testified denied interviewing the

children, Brian and Tawanda testified that they were interviewed and not all the officers

on the scene testified.

Further, the Lehmann Note constitutes additional evidence that, along with

inferences from it, support Burgess’ argument. Regardless of the strength or weakness of

this evidence, the jury could have reasonably relied on it to reach its decision.

In addition, Burgess impeached Goldstein throughout the trial. Pointing out just a

few examples, Burgess established that Goldstein’s trial testimony differed from his

deposition testimony, that he failed to document parts of the investigation he claimed to

have conducted and that his investigation failed to comply with police best practices. The

jury, therefore, could have been persuaded by these attacks on Goldstein’s credibility and

rejected some or all of his testimony.

Of course, there was evidence from which the jury could have rejected both

conclusions Burgess advances. But under our standard of review, it is not our job to weigh

the evidence or judge credibility. “On such appellate review we determine if a reasonable

jury could have found the verdict.” First Union Commercial Corp., 411 F.3d at 556. Here,

our standard of review compels the conclusion that a reasonable jury could have agreed

with Burgess.

exculpatory testimony is of such a nature that it can “negate any innocent explanation for the Defendant’s withholding.” J.A. 2122. 18 B.

We next consider Goldstein’s argument that the district court erred in declining to

grant a directed judgment on the fabrication claim. “We have recognized a due process

right not to be deprived of liberty as a result of the fabrication of evidence by a government

officer acting in an investigating capacity.” Massey v. Ojaniit, 759 F.3d 343, 354 (4th Cir.

2014) (internal quotation marks and citation omitted). But fabrication of evidence alone is

not sufficient to state a claim for a due process violation as “a plaintiff must plead adequate

facts to establish that the loss of liberty—i.e., his conviction and subsequent

incarceration—resulted from the fabrication.” Id.

The fabrication claim that went to the jury was Burgess’ assertion that Goldstein

created a false police report stating that all of the victim’s children were asleep at the time

of the murder in order to hide Brian’s existence as a potential exculpatory witness, meaning

that Goldstein knew that Brian was in fact awake at the time of the murder. Largely

repeating the arguments described in our analysis of the withholding claim, Goldstein

argues Burgess failed to produce evidence on which a reasonable jury could rely to support

its verdict.

We need not repeat the discussion about this evidence contained in our analysis of

Burgess’ withholding claim. As noted, the evidence that Goldstein learned Brian was

awake and saw that an intruder that was not Burgess is hardly robust. But, for the same

reasons we described in the previous section, we conclude that there was sufficient

evidence from which the jury could have concluded that Brian told a police officer that

Burgess was not involved in the crime on the night of the murder. And if there is sufficient

19 evidence of that fact, by extension, there was sufficient evidence from which a jury could

conclude that Goldstein fabricated the report indicating otherwise. 5

C.

In affirming the district court’s denial of Goldstein’s Rule 50 motion, we emphasize

the importance of the jury’s role in trials, a role enshrined in the Seventh Amendment. That

role is, of course, important in any trial. It is even more important in trials, like the one

here, that boil down to credibility determinations. The jury here was tasked with making a

number of difficult credibility decisions. It had to decide what testimony to believe and

what to reject. It had to decide how the various pieces of evidence offered over the course

of a ten-day trial fit together. It did this with a front row seat to the testimony offered by

the witnesses. From that vantage point, the jury was able to examine not only the words

5 Goldstein also appeals the district court’s denial of his Rule 50 motion with respect to Burgess’ malicious prosecution and state law intentional infliction of emotional distress (“IIED”) claims. Goldstein argues that because the evidence presented at trial was insufficient to support the jury’s conclusions that Goldstein fabricated and withheld evidence, it was also insufficient to support the verdict on these claims. Appellant’s Br. at 35. But, the evidence and claims are linked, just as the district court suggested in explaining that the IIED claim “rises and falls” with the claims concerning the constitutional violation. J.A. 1889. And while we have noted that it is “not entirely clear whether the Constitution recognizes a separate constitutional right to be free from malicious prosecution . . . if there is such a right, the plaintiff must demonstrate both an unreasonable seizure and a favorable termination of the criminal proceeding flowing from the seizure.” Snider v. Seung Lee, 584 F.3d 193, 199 (4th Cir. 2009) (citing Lambert v. Williams, 223 F.3d 257 (4th Cir. 2000)). To prove his state law claim for Maryland IIED, Burgess had to show that Goldstein’s conduct was intentional or reckless; the conduct was extreme and outrageous; a causal connection between the wrongful conduct and the emotional distress; and that the emotional distress was severe. Harris v. Jones, 380 A.2d 611, 614 (Md. 1977). At this juncture, we review evidence in the light most favorable to Burgess and draw all reasonable inferences in his favor. Doing that, the record contains sufficient evidence to support the jury’s verdict on both of these claims.

20 the witnesses said, but also how they said them—their facial expressions, their body

language, their pauses, their mannerisms and all the other intangible factors that are present

in a trial. In contrast, we, reviewing words on a transcript many years after they were

spoken, lack the ability to appreciate those factors. For that important reason, we disturb a

jury’s factual determinations only if they lack evidentiary support. United States v. Shipp,

409 F.2d 33, 36 (4th Cir. 1969) (“[W]here the evidence is in conflict, the jury’s opportunity

to observe the witnesses’ demeanor is especially important in judging credibility.”). Here,

we conclude that the evidence offered by Burgess was sufficient for a reasonable jury to

conclude as it did on the withholding and fabrication claims.

IV.

We next turn to Goldstein’s appeal of the district court’s denial of his Rule 59

motion. Goldstein argues that the district court erred in denying his motion under Federal

Rule of Civil Procedure 59 because the evidence presented is legally insufficient to support

liability. Alternatively, he argues that he is entitled to a new trial, relying primarily on his

arguments put forth as to the Rule 50 motion and a list of other points he believes the jury

unreasonably inferred.

The district court, in great detail, addressed Goldstein’s claim for a new trial based

on the verdict being against the clear weight of the evidence, the result of errors of law and

based on false evidence. Concluding that the fabrication claim rises and falls with whether

or not Burgess produced sufficient evidence of Goldstein’s knowledge of Brian’s

eyewitness account, it also found the jury’s verdict on the fabrication claim was not against

21 the clear weight of evidence. For similar reasons, it concluded that the jury’s verdict on the

IIED and malicious prosecution claims could stand. Goldstein’s challenge fails to address

the substance of the order denying Rule 59 relief or provide more than a threadbare

argument as to why the verdict against Goldstein was against the clear weight of the

“The decision to grant or deny a new trial rests with the sound discretion of the

district court, and we review this decision for a clear abuse of discretion.” Bristol Steel &

Iron Works v. Bethlehem Steel Corp., 41 F.3d 182, 186 (4th Cir. 1994). Consistent with

that, the district court’s action in granting or refusing a new trial is “not reviewable upon

appeal, save in the most exceptional circumstances.” Young v. Int’l Paper Co., 322 F.2d

820, 822 (4th Cir. 1963). This is so because the district court judge is in the best position

to see the witnesses and is intimately familiar with the trial from a perspective this Court

cannot have. Bristol Steel, 41 F.3d at 186.

Outside of suggesting that the judge and jury were motivated by sympathy and bias,

noting that Thanksgiving holiday was looming and that the judge came down to apologize

to Burgess, Goldstein has presented scant evidence in support of his arguments.

Appellant’s Br. at 37. Goldstein fails to address the substance of the district court’s ruling

and provides no authority for his bare claims other than simply to cite the rule. 6 We are

6 Because of this, we would be well within our discretion and authority to find this argument forfeited in its entirety. Li v. Gonzales, 405 F.3d 171, 175 n.4 (4th Cir. 2005) (“Because this section of Li’s brief contains no citation to legal authority, Li forfeited the argument.”); see also Fed. R. App. P. 28(a)(8)(A) (noting that the appellant’s brief must contain, inter alia, “citations to the authorities . . . on which the appellant relies.”). 22 convinced from a review of the record that the district court was within in its discretion in

denying the motion. Thus, we find no error here.

V. Next, we consider Goldstein’s argument that the district court erred in refusing to

instruct the jury not to consider information about Howard Rice regarding Burgess’

withholding claim. Specifically, Goldstein argues that, without the instruction it requested,

the jury instructions allowed the jury to consider a theory of liability on which the district

court had already awarded Goldstein summary judgment.

Recall that the district court granted partial summary judgment in favor of Goldstein

as to Burgess’ Brady claim related to pretrial Howard Rice evidence. The district court

agreed with Goldstein that there were no genuine issues of material fact related to Burgess’

Brady claim for the withholding of information related to Rice as an alternative suspect

because Burgess already knew about Rice’s potential relevance. The court also noted that

Burgess failed to identify what piece of evidence related to Howard Rice Goldstein

withheld. For that reason, the court granted Goldstein’s motion for summary judgment as

to Burgess’ Brady claim related to pretrial Howard Rice evidence.

Later, at a jury charge conference, Goldstein sought an instruction to the jury that

there were no pretrial Howard Rice claims. Goldstein insisted:

[A]t some point in the jury instruction process, the jury needs to be made aware of this Court’s ruling on summary judgment so that they don’t go astray, which probably would not be reflected on the jury verdict form, and find, for example, that there is a Brady violation because Little-Man wasn’t disclosed, or there was a violation because Howard Rice wasn’t disclosed.

23 This Court has already ruled on those issues. Those cannot be put to the jury . . . .

J.A. 1916–17.

To that end, Goldstein submitted additional proposed jury instructions to the court.

Specifically, he sought an instruction on “Claims Not to Be Considered” indicating that

certain claims have been determined as a matter of law not to be a part of this case including

“whether the Defendant(s) at any time withheld exculpatory information relating to

Howard Rice.” J.A. 1659. The district court declined the proposed instruction, noting that

the parties could argue their point about the instruction given on appeal and that the

argument was preserved. The jury was ultimately instructed that:

As to the first and second claims, the due process claims, concealment and fabrication, which is in Court’s Instruction Number 14, the Plaintiff’s first and second claims allege that the Defendant violated his Federal and State Constitutional due process right to a fair trial by, one, failing to disclose exculpatory evidence -- namely, that Brian Rainey was an exculpatory witness, other exculpatory information provided by the FBI as recited in Plaintiff’s Exhibits 121 and 122, as well as the information in Plaintiff’s Exhibit 372 [the Lehmann Note]-- that was material to the Plaintiff’s defense in the criminal case.

J.A. 1999-2000.

Goldstein argues that Burgess capitalized on the instructions by arguing during

closing that Goldstein was liable for withholding information about Howard Rice as an

alternative suspect even though the district court had previously dismissed that claim.

Looking at the closing arguments, Burgess emphasized that there was evidence of an

alternate suspect who the Lehmann Note called “Little-Man.” J.A. 1978. Burgess

continued:

24 [Y]ou’ve heard a lot of evidence about Little-Man. Little Howard. You know, he had a very small stature. He was going around in the neighborhood killing everybody. And that’s what Mr. Dyson also told the police. He told the police that he liked to wear disguises. Remember his testimony? He said Little-Man likes to wear disguises. Well, there was Little Howard who was running around the neighborhood who killed nine people in a two-year period in a less than three-mile area, who liked to wear disguises.

J.A. 1979. Burgess added that in regard to Dorsey, the confessed killer, that “it [was] not

in his self-interests to admit to him and Howard Rice killing this woman unless it was

actually true.” 7 J.A. 1985.

To be sure, Burgess conflated the names Howard Rice, Little Howard and Little

Man in a manner that may have blurred the line between them and arguably confused the

identity of the individuals. And this may have been what counsel for Goldstein was

concerned about all along when she sought a clarifying instruction as to the pre-trial

Howard Rice claims. We appreciate this concern. But importantly, this potential confusion

did not begin with Burgess’ closing argument. In fact, Burgess, in his opening statement,

discussed the Lehmann Note, indicating that “Little-Man was little Howard Rice, who had

been shooting everybody in the neighborhood.” J.A. 636. And Goldstein told the jury the

opposite in opening: “You will find out during this trial we have no idea who Little-Man

is. There is not a single document you will see in this case that refers to Howard Rice as

Little-Man. He was not Little-Man. If he ever went by a nickname, which is disputed by

some people who knew him, it was Little Howard . . . .” S.A.74.

7 The record is not clear whether Dorsey’s confession indicated that he and Rice were both involved in the murder although Burgess’ counsel argued that during closing and further suggested as much before this Court. 25 This continued during the testimony of the witnesses. Goldstein elicited testimony

from several witnesses about Little Man. Burgess testified that he did not know Little

Man’s real name but knew a different person named Howard Rice. Troy Williams, a former

boyfriend of Dyson, testified that he had never heard Howard Rice referred to as Little

Man. Goldstein testified that Little Man and Howard Rice were two different people. And

another BPD detective testified that Howard Rice’s nickname was Little Howard.

These repeated references to Little Man and Howard Rice before closing undermine

Goldstein’s arguments. First, he did not object to these references. Second, how could the

references to Little Man and Howard Rice in Burgess’ closing have been prejudicial in

light of so many references earlier in the trial?

Further, it is important to remember the allegation of error on appeal relates not to

the closing arguments but to the district court’s jury instructions. We review the decision

to give or not give a jury instruction, and the content of an instruction, for abuse of

discretion. United States v. Savage, 885 F.3d 212, 222–23 (4th Cir. 2018). When jury

instructions are challenged on appeal, the key issue is “whether, taken as a whole, the

instruction fairly states the controlling law.” United States v. Cobb, 905 F.2d 784, 789 (4th

Cir. 1990). A district court will be reversed for declining to give an instruction proposed

by a party only when the requested instruction “(1) was correct; (2) was not substantially

covered by the court’s charge to the jury; and (3) dealt with some point in the trial so

important, that failure to give the requested instruction seriously impaired that party’s

ability to make its case.” Noel v. Artson, 641 F.3d 580, 586 (4th Cir. 2011) (internal

quotation marks and citation omitted).

26 Goldstein argues that by refusing to instruct the jury that Howard Rice information

could not be considered a source of withheld Brady information, the district court

effectively vacated its own summary judgment ruling because the lack of this instruction

allowed Burgess to argue his Howard Rice theory by the backdoor of “Little Man.” But

when presented with this issue in the context of the post-trial motions, the district court

concluded that there had been no violation of its summary judgment order.

The district court’s decision merits deference, as it would be in the best position to

make this determination. See JTH Tax, Inc. v. H & R Block E. Tax Servs., Inc., 359 F.3d

699, 705 (4th Cir. 2004) (“When a district court’s decision is based on an interpretation of

its own order, our review is even more deferential because district courts are in the best

position to interpret their own orders.”). And our review of the summary judgment order

reveals that, overall, the district court’s decision was correct. In fairness to Goldstein, at

the beginning of the Howard Rice discussion, the order provides “‘Little Man’ (an alleged

nickname for Howard Rice).” J.A. 532. But the district court was summarizing Burgess’

allegations, not purporting to make a factual finding. The court’s analysis talks only about

“Howard Rice.” Id. at 533. And in granting Goldstein’s motion for summary judgment, it

refers to “pretrial Howard Rice evidence” without any reference to “Little Man.” Id. Thus,

while the district court could have been more precise in the summary judgment order, we

agree that order was not violated.

Further, the district court’s decision to admit the Lehmann Note into evidence

provides additional support. As described above, the note expressly referenced Little Man.

If the district court intended its ruling about Howard Rice to include Little Man, why would

27 it have admitted the Lehmann Note? Of course, the court’s decision to admit the Lehmann

Note could have related in part to other contents of the note—namely “Child Bryan?

Witnes[s] ‘get down basement.’” J.A. 2517. But if it intended to bar any evidence about

Little Man from trial in its summary judgment ruling, the district court would likely have

taken some measure to address the Little Man reference in the Lehmann Note. For example,

it could have ordered the Little Man reference to be redacted. Or it could have issued a

limiting instruction about that reference. The fact that it did not adds support for its denial

of Goldstein’s post trial motion concerning the jury charges.

In addition, the instruction requested by Goldstein was substantially covered by the

court’s charge about the relevant legal issues. Consequently, there was no need for the

judge to draw attention to a particular piece of evidence or claim or to dissect the Lehmann

Note for the jury when the note in fact said nothing about Howard Rice in the first place.

See generally Benjamin v. Sparks, 986 F.3d 332, 350 (4th Cir. 2021) (“We recognize that

district courts are often well-advised not to comment on specific evidence in

their jury instructions.”). Further, the jury was instructed that what a lawyer says in his

opening or closing statements is not evidence. In sum, the instructions fairly stated the

controlling law.

Finally, the failure of the court to give the requested instruction did not materially

impair Goldstein’s ability to make his case. For example, at various points during the trial,

Goldstein distinguished between Little Man and Howard Rice.

Bottom line, Goldstein’s real complaint seems to be about Burgess’ counsel’s

closing argument. But whether or not he has a valid complaint, he does raise that issue on

28 appeal. Instead, the issue for us is the district court’s jury instructions. And, while we

acknowledge this issue, like all the issues before us, is close, we find no reversible error. 8

VI.

Finally, we turn to Goldstein’s argument that the district court erred in admitting the

FBI Notes. To assess this argument, we begin with a description of what the notes contain.

They list “ITAR-Drug-Related Murders” in the subject line and reference the “Murder of

Michelle Dyson.” J.A. 2509-10. They also indicate that three subjects were involved in the

Dyson murder. They reference Dyson’s babysitter and other potential witnesses with

knowledge about the details and motives regarding the murder. The notes list one of

Dyson’s old boyfriends, an individual who drives a white Pathfinder truck, as either a

suspect or a witness with potential exculpatory information and suggest that Dyson was

killed because of drug-related problems. They indicate that the author of the notes, who

importantly is not identified, passed this information on to a detective of the BPD-

Homicide Unit at the phone number (410) 396-2116. The notes provide that the detective

who provided the information “is the case detective and he advised that the information

appeared to be accurate and resulted in leads on the case.” J.A. 2509. They also indicate

that “[o]n 11/8/94, after 2130 hours, Det. [Redacted], the case detective, BPD Homicide

8 Burgess insists an additional reason to affirm the district court on the jury instruction issue is that Goldstein did not contemporaneously object to the Little Man references during closing. However, Goldstein contends the district court directed the parties not to object during closing arguments. Without the full record of the court’s directives before us, we decline to rely on any failure of Goldstein to object during closing. 29 Unit (410) 396-2116 was provided with the above-stated information.” J.A. 2510.

However, the name of the BPD official with whom the author of the FBI Notes spoke is

redacted.

Burgess argues now, as he did at trial, that the FBI Notes establish Goldstein had

and withheld this exculpatory information. To support this position, he asserts that the FBI

Notes state that the information was provided to the “case detective” at the “BPD-Homicide

Unit,” whom trial testimony established to be Goldstein for the Dyson murder. Thus,

according to Burgess, the jury could have reasonably concluded that Goldstein received

exculpatory information but failed to disclose it to the prosecutor or to Burgess. 9

Goldstein argues that the evidence did not show that he ever received the FBI

information. He denies ever being contacted by the FBI and insists that the phone number

in the note was not the main BPD homicide line where he could be reached.

But, as a threshold matter, Goldstein also argues that the FBI Notes should not have

been admitted at all. More specifically, he argues that the district court abused its discretion

in admitting them under Federal Rule of Evidence 807’s residual exception and denying

9 Burgess also argues that Goldstein’s notes track the contents of the FBI memos to an extent that confirms he received the information from the FBI. Goldstein’s handwritten notes do, in fact, contain two pieces of information that also appear in the FBI notes: his notes reference “Troy Williams,” an “old boyfriend” who “works at ‘Hair Dimension’ Sinclaire Lane Shopping Center,” and “Barbara BIF 20’s babysitter” who “did Michelle’s nails [and] lives near Michelle’s old address” as well as telephone numbers and addresses of three other individuals. J.A. 2484. In response, Goldstein counters that it is not logical to infer that he received the FBI Notes simply on the basis that his handwritten notes contain similar information, as the information was obtained independently. Appellant’s Br. at 30–33.

30 Goldstein’s motion to exclude the FBI Notes as inadmissible hearsay. We now consider

Goldstein’s hearsay challenge.

We review a trial court’s ruling on the admissibility of evidence for abuse of

discretion. United States v. Cole, 631 F.3d 146, 153 (4th Cir. 2011). We will overturn an

evidentiary ruling only if it is arbitrary and irrational, and we will look at evidence in the

light most favorable to the proponent, “maximizing its probative value and minimizing its

prejudicial effect.” Id. (quoting United States v. Udeozor, 515 F.3d 260, 265 (4th Cir.

2008)).

The district court found that much of the information contained in the FBI Notes

was not hearsay. It found that such information was not offered for the truth of the matter

asserted. Indeed, it agreed with Burgess that the FBI Notes were admitted primarily to show

notice to Goldstein of potential exculpatory information, not to prove who actually

murdered Dyson. But the court acknowledged that the portions of the notes that said the

FBI contacted the BPD’s lead detective were offered for the truth of the matter asserted

and, thus, were hearsay. Even so, it admitted the hearsay portions of those notes under Rule

807, finding that there was a “strong indicia of reliability” that the information was

furnished by the FBI to the BPD. J.A. 626. The district court also found that the adverse

party, Goldstein, received the notice required by Rule 807.

In reviewing Goldstein’s post-trial motions, the district court addressed Goldstein’s

challenge to the admission of the FBI notes again, this time with particular attention to the

notice requirement. It reiterated its earlier ruling that admitting the notes complied with the

spirit and purpose of Rule 807(b)’s notice requirement. The district court also found that

31 the FBI Notes bore “circumstantial guarantees of trustworthiness” because they were

produced pursuant to a subpoena and recorded near contemporaneous communications

among law enforcement agencies. J.A. 2138.

In reviewing this decision, we begin with Rule 807, titled the “Residual

Exception.” 10 Rule 807 creates a hearsay exception for certain statements not covered by

any exceptions in Rules 803 or 804. Fed. R Evid. 807. For a statement to be admissible

under Rule 807, it must contain “guarantees of trustworthiness,” and be “more probative

on the point for which it is offered than any other evidence” available through “reasonable

efforts.” Id.

10 At the time of the hearing and trial, the Rule provided as follows:

(a) In General. Under the following circumstances, a hearsay statement is not excluded by the rule against hearsay even if the statement is not specifically covered by a hearsay exception in Rule 803 or 804:

(1) the statement has equivalent circumstantial guarantees of trustworthiness;

(2) it is offered as evidence of a material fact;

(3) it is more probative on the point for which it is offered than any other evidence that the proponent can obtain through reasonable efforts; and

(4) admitting it will best serve the purposes of these rules and the interests of justice.

(b) Notice. The statement is admissible only if, before the trial or hearing, the proponent gives an adverse party reasonable notice of the intent to offer the statement and its particulars, including the declarant’s name and address, so that the party has a fair opportunity to meet it.

Fed. R. Evid. 807 (2017).

32 Goldstein contends that Burgess failed to provide notice of the declarant’s name and

address under Rule 807(b). 11 Appellant’s Br. at 39. Generally, we require strict compliance

with the notice provision. See United States v. Heyward, 729 F.2d 297, 299 n.1 (4th Cir.

1984). For example, in United States v. Mandel, we held that “[w]ith respect to those

statements where the declarant is unidentified, the government has not met the notice

requirement because the names and addresses of the declarants were not given.” 591 F.2d

1347, 1369 (4th Cir. 1979). We found “no reason to depart from [the rule’s] plain

requirements” even though the possible declarants were limited to members of the

Maryland Senate. Id.; but cf. United States v. Squillacote, 221 F.3d 542, 563–64 (4th Cir.

2000) (“While there may be cases where the inability to identify the declarant of an alleged

co-conspirator’s statement could render the statement inadmissible, this is not one of those

cases. The HVA documents were sufficiently connected to each other and to the conspiracy

established by the government’s evidence to make them reliable and admissible under Rule

801(d)(2)(E), notwithstanding the government’s inability to identify the declarants.”); see

also United States v. Simmons, 773 F.2d 1455, 1458–59 (4th Cir. 1985) (concluding that

firearm trace forms of the Bureau of Alcohol, Tobacco and Firearms were properly

admitted into evidence under predecessor Rule 807 as there was no reason for the weapons’

manufacturers to falsify entries on routine forms).

Burgess never identified the name of the declarant, much less the address of the

declarant. Of course, the FBI Notes indicate that the declarant is with the FBI. But merely

11 The requirement that prior notice of the declarant’s address has since been deleted from the current version of the Rule effective 2019 amendments. 33 identifying the organization with whom the declarant works is not enough. Burgess did not

provide the notice the Rule required—“reasonable notice of the intent to offer the statement

and its particulars, including the declarant’s name and address. . . .” Fed. R. Evid. 807(b)

(2017). For this reason, we agree with Goldstein that the district court erred in admitting

the FBI Notes.

But this does not end the inquiry. We must now consider whether the error was

harmless. See United States v. Cone, 714 F.3d 197, 219 (4th Cir. 2013) (“Evidentiary

rulings are subject to harmless error review . . . .”). “[T]he test for harmlessness is whether

we can say with fair assurance, after pondering all that happened without stripping the

erroneous action from the whole, that the judgment was not substantially swayed by the

error.” Smith v. Baltimore City Police Dep’t, 840 F.3d 193, 200–01 (4th Cir. 2016) (internal

The FBI Notes were certainly important evidence. In fact, in the jury instruction

conference, the district court commented on the importance of the documents. See J.A.

1917 (“When all is said and done, this whole case is going to hinge on [Goldstein’s notes

and the FBI Notes], among other things.”) And in closing, Burgess’ counsel discussed the

FBI Notes in identifying the evidence Goldstein withheld, even suggesting it alone

provided the basis for a verdict in favor of Burgess. After discussing the notes, he argued

“[t]his case is over. I mean, I could stop talking now, and we could all go to lunch early,

but I'm going to keep talking. But all we have to prove is that exculpatory evidence was

withheld, and we’ve already proved it.” J.A. 1975. In addition, as already noted, Burgess’

withholding claims based on Brian and the Lehmann Note were thin. In that context, we

34 do not minimize the importance of records from a well-known and generally respected

governmental organization like the FBI.

But after considering the record as a whole, we conclude that the admission of the

FBI Notes here was harmless. At the most basic level, the FBI Notes were one piece of

evidence from a two-week trial. While by no means determinative, that fact alone militates

in favor of harmlessness.

However, there are other reasons. First, as noted, most of the content of the

documents was not offered for the truth of the matter asserted. J.A. 2135 (“At the hearing,

the Court established that the vast majority of the information contained in the documents

was offered to prove notice to the BPD rather than for the truth of the matters asserted

therein.”). Second, the portion of the notes that was offered for the truth of the matter

asserted—that the FBI provided the information in the notes to the case detective—also

came in through an alternative source which, interestingly enough, was Goldstein. In

disputing Burgess’ argument that his notes show he received the information from the FBI,

Goldstein insisted that he independently developed some of the information contained in

the FBI Notes without the FBI’s help. Thus, Goldstein’s own testimony was an alternative

source for the portion of the FBI notes which was admitted under Rule 807—that he had

information about alternative suspects of the murder. So, even accepting Goldstein’s

arguments that he did not receive any information from the FBI, he would still be obligated

to turn over the information about alternative suspects that he independently developed.

Accordingly, the court’s error was not prejudicial to Goldstein. Third, as explained above,

Burgess argued that Goldstein withheld multiple pieces of exculpatory evidence, only one

35 of which was the FBI Notes. And as we have already decided, the jury’s verdict could be

upheld in light of Brian and his sister’s testimony and the Lehmann Note without the

admission of the FBI notes. Finally, the district court concluded there was no “miscarriage

of justice” where the FBI Notes could have been admitted as business and public records

under Rules 803(6) and 803(8). J.A. 2138.

In conclusion, the district court erred in admitting the FBI Notes under Rule 807.

Despite that, looking at the entire record, “we can say with fair assurance, after pondering

all that happened without stripping the erroneous action from the whole, that the judgment

was not substantially swayed by the error.” Smith, 840 F.3d at 201 (quoting United States

v. Madden, 38 F.3d 747, 753 (4th Cir. 1994)). Therefore, the district court’s error was

harmless and provides no basis for the relief Goldstein seeks. See Benjamin, 986 F.3d at

346 (“Even if the district court errs in admitting evidence, this Court will not reverse if the

error was harmless and had no prejudicial affect.”).

VII.

Last, we turn to Burgess’ cross-appeal. Burgess argues the district court erred in

dismissing its Monell claim. For background, after we dismissed Goldstein’s initial appeal

for lack of jurisdiction and remanded to the district court for resolution of the Monell claim,

the district court dismissed that claim under Rule 12(b)(6) of the Federal Rules of Civil

Procedure. It held that Burgess could not obtain additional relief from the Monell claim

because he had already been awarded compensatory damages and did not seek equitable

relief. The court further concluded that no such equitable relief would be appropriate in

36 this case given that the constitutional deprivations at the heart of this matter occurred over

twenty-five years ago and because the evidence presented at trial does not support

submission of the count to the jury.

In reviewing this dismissal, we begin with the elements of a Monell claim. Because

municipal liability under § 1983 cannot be predicated solely upon a respondeat superior

theory, liability arises only where city employees take constitutionally offensive acts in

furtherance of municipal policy or custom. Milligan v. City of Newport News, 743 F.2d

227, 229 (4th Cir. 1984). Burgess alleges that Goldstein’s actions were taken pursuant to

policies and practices of the BPD, City Council or Mayor including the failure to

adequately train, supervise and discipline officers who engaged in constitutional violations.

The policies and practices alleged also included failure to turn over exculpatory evidence

and to rely on fabricated evidence.

In assessing whether those allegations are adequate, “[t]he purpose of

a Rule 12(b)(6) motion is to test the sufficiency of a complaint; importantly,

[a Rule 12(b)(6) motion] does not resolve contests surrounding the facts, the merits of a

claim, or the applicability of defenses.” Edwards v. City of Goldsboro, 178 F.3d 231, 243–

44 (4th Cir. 1999) (internal citation and quotation marks omitted). We review dismissals

under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim de novo, viewing

the facts in the light most favorable to the plaintiff. Giarratano v. Johnson, 521 F.3d 298,

302 (4th Cir. 2008).

Applying that standard, earlier in the case, the district court denied BPD’s motion

to dismiss the Monell claim, finding that BPD’s argument placed too high a burden on

37 Burgess to plead a claim. It concluded that Burgess’ allegations sufficiently pled a policy

or practice of withholding and/or fabricating evidence and allowed the claim to proceed.

In a second order, the district court granted BPD’s motion to bifurcate and stay discovery

to allow claims against the officer defendants to be resolved in a first trial and claims

against BPD to be resolved in a second trial if necessary. After we dismissed Goldstein’s

initial appeal for lack of jurisdiction and remanded for resolution of the Monell claim, the

district court opted to dismiss the Monell claim. The district court does not explain why the

allegations of the complaint that were sufficient earlier no longer were. Instead, the district

court’s dismissal seems based on the verdict issued against Goldstein. The verdict is, of

course, an important development since the district court’s earlier rulings. It is correct that

the City of Baltimore indicated that it would indemnify Goldstein with respect to any

judgment if there was an affirmance. See J.A. 2209. But it has not yet done so. If, in light

of our decision today, the City does in fact indemnify Goldstein and the judgment is

satisfied, it may be that Burgess would have received all the relief to which he is entitled

and, thus, the Monell claim would be moot. But until then, it is not. For this reason, we

reverse the district court’s dismissal of Burgess’ Monell claim.

VIII.

We have pored over this record from this complex two-week trial as well as the

parties’ briefs. From that review, it is clear that behind all the arguments, this is a case

which rises and falls on the credibility of a few key witnesses. As we have consistently

held, triers of fact are tasked with making credibility determinations. Shipp, 409 F.2d at 36

38 (“It is a truism deeply rooted in juridic experience that where the evidence is in conflict,

the jury’s opportunity to observe the witnesses’ demeanor is especially important in

judging credibility.”) For this reason, appellate courts have acknowledged both the role of

the jury in observing witnesses in the first instance, and the trial judge, “vested with broader

power” who “may in his discretion set the verdict aside and grant a new trial if he thinks

the verdict is against the weight of the evidence.” Id.

We have also recognized the trial court’s power to make evidentiary decisions, to

inform the jury of relevant issues and legal principles, and to manage other aspects of a

jury trial. See generally Benjamin, 986 F.3d at 337. “[T]he abuse of discretion standard

requires a reviewing court to show enough deference to a primary decision-maker’s

judgment that the court does not reverse merely because it would have come to a different

result in the first instance.” Id. at 345 (internal citation and quotation marks omitted); see

also McDonough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 554 (1984) (“[I]t is well-

settled that the appellate courts should act in accordance with the salutary policy embodied

in Rule 61.”) 12

These important principles guide our decision today. For the foregoing reasons, we

affirm the jury verdict upheld by the trial court. However, we reverse the trial court’s

12 Federal Rule of Civil Procedure 61 provides: “Unless justice requires otherwise, no error in admitting or excluding evidence—or any other error by the court or a party—is ground for granting a new trial, for setting aside a verdict, or for vacating, modifying, or otherwise disturbing a judgment or order. At every stage of the proceeding, the court must disregard all errors and defects that do not affect any party’s substantial rights.” Fed. R. Civ. P. 61. 39 dismissal of the remaining Monell claim in this action and remand for further proceedings

consistent with this opinion.

AFFIRMED IN PART, REVERSED IN PART AND REMANDED