Gerard Marchelleta, Jr. v. Patricia Bergstrom

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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 17-11708
________________________
D.C. Docket No. 1:14-cv-02923-ELR
GERARD MARCHELLETTA, JR.,
Plaintiff-Appellant,
versus
PATRICIA BERGSTROM,
C. ANDREW MARTIN,
PAUL MONNIN,
JUSTIN ANAND,
RANDY CHARTAS, et al.,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Northern District of Georgia
________________________
(September 25, 2018)
Before ED CARNES, Chief Judge, BRANCH, and FAY, Circuit Judges.
PER CURIAM:
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Gerard Marchelletta, Jr. appeals the dismissal of his first amended complaint
and the denial of his Federal Rule of Civil Procedure 59(e) motion to alter
judgment and for leave to amend his first amended complaint. The district court
dismissed Marchelletta’s first amended complaint because it was a shotgun
pleading and alternatively for failure to state a claim, failure to exhaust
administrative remedies, and on qualified and absolute immunity grounds. The
court then denied his Rule 59(e) motion on grounds of undue delay and bad faith.
I. BACKGROUND
The civil action that led to this appeal was filed by Marchelletta after he was
convicted of federal tax crimes and later exonerated. He sued several defendants
who played a part in his investigation and prosecution. Because the district court
set out the facts of this case in its order dismissing the first amended complaint,
Marchelletta v. Bergstrom, No. 1:14-CV-02923-ELR, 2016 WL 10537558, at *3–
13 (N.D. Ga. Feb. 25, 2016), we will recount only the ones necessary to resolve the
issues in this appeal.
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A. FACTS 1
In 2014 Marchelletta filed suit against eight defendants who had investigated
and prosecuted him for felony tax crimes. His first amended complaint alleges
eleven Bivens and state law tort claims against: two IRS agents, Patricia
Bergstrom and Andrew Martin; three prosecutors with the United States Attorney’s
Office, Paul Monnin, Justin Anand, and Randy Chartash; one ICE agent, Kimberly
Sellers; one FBI agent, Mark Sewell; and one confidential informant, Shawn
McBride. For ease of reference, we will refer to the three prosecutors as the
Prosecutor Defendants and the IRS, ICE, and FBI agents as the Law Enforcement
Defendants.
1. The Underlying Criminal Action
In April 2007 a federal grand jury indicted Marchelletta, his father, and the
bookkeeper of their family business for felony tax fraud and conspiracy. A jury
convicted Marchelletta on three counts. He appealed. We reversed and remanded
with instructions to enter judgment of acquittal on the first count, and for a new
trial on the second count, but we affirmed on the third count. See United States v.
Kottwitz, 614 F.3d 1241, opinion withdrawn in part, 627 F.3d 1383 (11th Cir.
1
These “facts” come from the allegations in Marchelletta’s first amended complaint,
which the district court dismissed. Because this case is on appeal from a motion to dismiss, we
accept all well-pleaded allegations and draw reasonable inferences in the light most favorable to
Marchelletta. See Dalrymple v. Reno, 334 F.3d 991, 994 (11th Cir. 2003). That does not mean,
of course, that what we take as facts for present purposes actually are facts.
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2010). Marchelletta petitioned for panel rehearing, seeking to have his conviction
on the third count set aside as well. While that petition was pending, he filed in the
district court a motion for a new trial because he had discovered what he believed
was evidence of government misconduct, including Brady violations, trial perjury,
subornation of perjury, and witness intimidation. We granted the rehearing
petition and reversed and remanded the conviction on the third count for a new
trial on other grounds. See Kottwitz, 627 F.3d at 1384–85. That mooted
Marchelletta’s motion for a new trial based on the alleged government misconduct.
The United States Attorney’s Office announced that it would retry the
second and third counts, and at about that same time, Marchelletta filed a FOIA
action against the IRS and United States Customs Service that yielded 90,000
pages of documents relating to the criminal investigation of him. According to
Marchelletta, the prosecution had disclosed only 25,000 pages of documents
during pretrial discovery, so he filed a “Motion to Dismiss the Indictment for
Outrageous Government Misconduct,” which the district court denied. The district
court ultimately dismissed the remaining counts against Marchelletta based on a
negotiated agreement between him and the government.
2. Allegations of Government Misconduct
The first amended complaint claims there was government misconduct
before and after Marchelletta’s convictions. First, it claims misconduct regarding
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the assessment of his income tax returns, alleging that Bergstrom “either
individually or in concert” with the other defendants intentionally obstructed a
correct assessment of his tax returns. Second, it claims that Bergstrom, Sellers,
and Monnin recruited “rogue Union operatives” from a carpenters union to conduct
illegal activities against Marchelletta’s company and family.
Third, it claims that Bergstrom tried to cover up misconduct by telling other
IRS agents to obstruct Marchelletta’s access to the files he sought in his FOIA
action. When the IRS did release the files, Marchelletta received previously
undisclosed evidence showing: that Bergstrom had obtained unauthorized access
to grand jury materials from Sellers; that Bergstrom and Sellers had committed
perjury to obtain a conviction against him; and that Bergstrom had concealed
memoranda of witness interviews containing exculpatory information.
Finally, much of the first amended complaint centers on claims that the
Defendants fabricated evidence by cobbling together parts of undisclosed customs
reports into a “composite forgery” designed to conceal exculpatory evidence.
During discovery in the federal tax case, Marchelletta received six customs reports.
Later, in response to his FOIA request, he received eighteen customs reports. He
alleges that the sixth customs report from discovery was in fact a combination of
two customs reports that were undisclosed prior to his FOIA request, and that the
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pages from those two reports were arranged to appear to be from a single report,
yielding a “composite forgery.”
B. PROCEDURAL HISTORY
Marchelletta filed his initial complaint in September 2014, and after the
Defendants moved to dismiss, he sought an extension of time to file an amended
complaint. He filed the operative first amended complaint in May 2015.
1. The First Amended Complaint
Marchelletta’s first amended complaint contains 11 counts, most of which
are not at issue in this appeal.2 All that are at issue here are two Bivens claims.
The first asserts that “[a]ll of the Defendants” violated Marchelletta’s right to
receive exculpatory information as required by Brady v. Maryland, 373 U.S. 83, 83
S. Ct. 1194 (1963). It avers that the Prosecutor Defendants and the Law
Enforcement Defendants had a duty to produce Brady material and that they
violated that duty by suppressing 65,000 pages of undisclosed documents that
Marchelletta later obtained through a FOIA request. And it alleges that had the
2
In his opening brief, Marchelletta failed to discuss the majority of the claims he raised
in his first amended complaint. The government contended in its answer brief that he had
abandoned those undiscussed claims, and he did not dispute that in his reply brief. Specifically,
Marchelletta failed to discuss and therefore abandoned all claims related to the alleged perjury
and subornation of perjury, interference with the IRS tax process, recruitment of “rogue union
operatives,” and all of his state law claims. We consider only those claims that he did address.
See Access Now, Inc. v. Sw. Airlines Co., 385 F.3d 1324, 1330 (11th Cir. 2004) (“Any issue that
an appellant wants [us] to address should be specifically and clearly identified in the brief. . .
. Otherwise, the issue — even if properly preserved at trial — will be considered abandoned.”)
(quotation marks omitted).
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Defendants turned over those documents in time, he could have disproved the
testimony of government witnesses, debunked the prosecution’s theory of
criminality, and proved that the Defendants altered evidence by cobbling together
parts of undisclosed customs reports into a “composite forgery” to conceal
exculpatory evidence.
The second claim at issue in this appeal asserts another Brady claim alleging
that “[a]ll of the Defendants” fabricated evidence, especially the “composite
forgery.”
2. The District Court Dismisses the First Amended Complaint
The Defendants moved to dismiss on grounds of improper pleading, absolute
and qualified immunity, and failure to state a claim. The district court granted
their motions to dismiss. It ruled that the first amended complaint exhibited two
kinds of shotgun pleading problems under the standard we set out in Weiland v.
Palm Beach County Sheriff’s Office, 792 F.3d 1313 (11th Cir. 2015). In the
alternative, the district court dismissed the first amended complaint on the merits.
On the merits, the district court ruled that the Prosecutor Defendants were
entitled to absolute immunity on the claim that they suppressed and fabricated
evidence. It noted that binding precedent immunizes prosecutors from suit on
those kinds of claims, and that Marchelletta apparently attempted to circumvent
that immunity by contending that the Prosecutor Defendants suppressed and
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fabricated evidence before his indictment, at which time immunity would not
apply. But the district court found that he had not succeeded in alleging facts
plausibly stating that the suppression and fabrication occurred before he was
indicted. It also noted that any such allegation would be contradicted by the fact
that some of the Prosecutor Defendants did not become involved until after
Marchelletta was indicted.
As to the claim that the Law Enforcement Defendants suppressed evidence,
the district court ruled that they were entitled to qualified immunity. It noted that
law enforcement officers have a duty not to conceal exculpatory evidence from the
prosecution, but that the duty to disclose it vanishes if the officers believe that the
prosecution is aware of that evidence. Because Marchelletta alleged that the
Prosecutor Defendants were “personally aware” of the suppressed evidence, the
district court ruled that the Law Enforcement Defendants were entitled to qualified
immunity on the suppression claim.
As to the claim that the Law Enforcement Defendants fabricated evidence,
the district court ruled that they were entitled to qualified immunity because
Marchelletta had not alleged any facts suggesting that any of those defendants
actually helped create the “composite forgery” that the fabrication claim was based
upon. For that reason, he had failed to allege that they violated a clearly
established constitutional right.
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2. Order Denying Motion to Alter Judgment and for Leave to Amend
After the district court dismissed the first amended complaint, Marchelletta
timely filed a Rule 59(e) “Motion to Alter or Amend Judgment and for Leave to
File the Attached Proposed Second Amended Complaint.” He attached to that
motion a proposed second amended complaint. The Defendants opposed the
motion, arguing that it failed to identify a basis upon which judgment was
improper or allege the existence of new evidence, which they asserted as
requirements for Rule 59(e) relief. By contrast, Marchelletta argued that to
succeed on a post-judgment motion to amend he needed only to satisfy the lenient
standard under Rule 15(a) for a pre-judgment motion for leave to amend.
The district court did agree with Marchelletta that “[w]hen a plaintiff seeks
to amend his complaint after dismissal pursuant to Rule 59(e), courts apply the
same standards as a motion for leave to amend under Rule 15 prior to dismissal.”
Doc. 50 at 2. But the court denied the motion to amend anyway on undue delay
and bad faith grounds. In doing so, it noted that courts routinely find undue delay
when a plaintiff seeks leave to amend more than one year after filing suit, and
Marchelletta offered no reason for waiting more than 18 months after filing suit to
seek leave to file a second amended complaint. The court explained that the
hundreds of pages of briefing on the motions to dismiss the original and first
amended complaints had put Marchelletta on notice of the deficiencies in his first
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amended complaint in time for him to have corrected them before judgment was
entered. For those reasons the district court refused to give him “a third bite at the
apple.” Id. at 4.
The district court also found bad faith, noting that Marchelletta’s proposed
second amended complaint contained allegations that contradicted those in the first
amended complaint. For example, the proposed second one alleged that the Law
Enforcement Defendants suppressed documents “with no reason to believe that
prosecutors had or knew of the evidence,” Doc. 45-2 ¶ 54(a), while the first one
had alleged that the Prosecutor Defendants were “personally aware of the
existence” of that evidence, Doc. 21 ¶ 57. The district court concluded that
Marchelletta had changed tack in light of its order dismissing his Brady claim on
the basis that the Prosecutor Defendants knew of the allegedly suppressed
evidence. The court interpreted his amendment as an attempt to “use . . . the
federal courts as a forum for testing alternate legal theories seriatim,” which our
precedent forbids. That, the court concluded, supported a finding of bad faith.
Marchelletta appeals the dismissal of his first amended complaint and the
denial of his Rule 59(e) motion.
II. STANDARDS OF REVIEW
We review de novo the dismissal of a complaint for failure to state a
plausible claim for relief. Day v. Taylor, 400 F.3d 1272, 1275 (11th Cir. 2005).
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We review for abuse of discretion the denial of a Rule 59(e) motion to alter or
amend the judgment. Jacobs v. Tempur-Pedic Int’l, Inc., 626 F.3d 1327, 1343 &
n.20 (11th Cir. 2010).
III. DISCUSSION
A. The District Court Properly Dismissed the First Amended Complaint
Marchelletta contends that the district court improperly dismissed his first
amended complaint for shotgun pleading and for failure to state a claim. Because
it does not matter to the result, we will skip over the shotgun pleading issue and
address only the dismissal on the merits.
On appeal, Marchelletta’s arguments against the merits dismissal focus on
only two alleged acts or omissions by the Prosecutor Defendants and the Law
Enforcement Defendants: (1) the suppression of exculpatory evidence, and (2) the
fabrication of the so-called “composite forgery.” We will address those claims in
that order, starting with the Prosecutor Defendants and then turning to the Law
Enforcement Defendants.
1. Suppression
Marchelletta does not contest the district court’s ruling that the Prosecutor
Defendants were entitled to absolute immunity on his suppression claim. Nor
could he successfully do so. Prosecutors are absolutely immune from civil liability
for suppressing exculpatory information and using fabricated evidence. See Imbler
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v. Pachtman, 424 U.S. 409, 431 n.34, 96 S. Ct. 984, 996 n.34 (1976) (equating the
suppression of exculpatory information with the use of perjured testimony and
holding that both are covered by absolute immunity); see also Van de Kamp v.
Goldstein, 555 U.S. 335, 339, 129 S. Ct. 855, 858 (2009) (holding that absolute
immunity “extends to claims that the prosecution failed to disclose impeachment
material”).
To the extent the first amended complaint attempted to plead around that
immunity by alleging that the Prosecutor Defendants “coordinated, strategized, and
assisted in the manufacture and use of . . . false evidence in their investigative
capacities,” the district court ruled that those allegations were impermissibly
conclusory. Marchelletta does not challenge that ruling. His suppression claim
against the Prosecutor Defendants fails.
The suppression claim against the Law Enforcement Defendants also fails
because they are entitled to qualified immunity, as the district court concluded.
The first amended complaint alleged that the Prosecutor Defendants knew of the
allegedly suppressed exculpatory evidence. That is a claim killing allegation
because an investigator has “no duty to inform the prosecutor’s office of
exculpatory evidence that the officer has reason to believe is already known to that
office.” Kelly v. Curtis, 21 F.3d 1544, 1552 (11th Cir. 1994) (“The same is true of
any failure of an officer to inform defense counsel or the court of exculpatory
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evidence: the officer has no such duty where she has reason to believe that the
prosecutor is aware of that evidence.”). The prosecutors’ alleged knowledge of the
evidence is reason for the investigators to believe they already knew about it, at
least where the first amended complaint does not say to the contrary. And
Marchelletta does not argue otherwise. Instead, his argument is that the first
amended complaint alleged that the Prosecutor Defendants knew of only one
suppressed document, not all of them like the Law Enforcement Defendants.
But the first amended complaint alleges more than Marchelletta lets on.
Every allegation of suppression in it names both the Prosecutor Defendants and the
Law Enforcement Defendants as the suppressors. All are jointly accused of
suppression. See, e.g., Doc. 21 ¶ 46 (“Defendants Martin, Bergstrom, Sewell,
Sellers, Monnin, Anand, [and] Chartash . . . failed to provide Marchelletta with
thousands of pages of exculpatory and impeachment material . . . .”) (emphasis
added); id. ¶ 55 (“The prosecution team, including all of these Defendants save
McBride, also failed to disclose Brady material regarding the IRS’s criminal tax
investigation of Marchelletta . . . .”); see also id. ¶¶ 44, 50, 54–55, 59. An
allegation that a person suppressed evidence necessarily assumes that the
suppressor had knowledge of that evidence. Contrary to Marchelletta’s assertion,
the district court did not fail to draw all reasonable inferences in his favor when it
interpreted his allegations to indicate that the Prosecutor Defendants knew of the
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allegedly suppressed evidence. What Marchelletta asks us to do — for instance, to
read an allegation that “[t]he prosecution team . . . failed to disclose Brady
material” to refer to everyone but the Prosecutor Defendants — is to draw
unreasonable inferences in his favor, which we will not do. See Dalrymple, 334
F.3d at 995.
Because the only reasonable inference from the first amended complaint’s
allegation is that the Prosecutor Defendants knew of the allegedly suppressed
evidence, and because the Law Enforcement Defendants had no duty to disclose
that evidence in light of the Prosecutor Defendants’ knowledge of it, the district
court properly ruled that the Law Enforcement Defendants were entitled to
qualified immunity. See Kelly, 21 F.3d at 1552.
2. Fabrication
Marchelletta’s other claim involves the alleged fabrication of a “composite
forgery.” He contends that the alteration of the reports comprising the composite
forgery is a form of spoliation that is “indistinguishable from destruction of that
same evidence.” He couples that assertion with several out-of-circuit decisions
recognizing a cause of action against prosecutors for the destruction of evidence
and urges us to follow suit. If we will, he says, we will see that the district court
erred in concluding that the Prosecutor Defendants were entitled to absolute
immunity with respect to the composite forgery customs report.
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Even if the production of the alleged composite forgery report is tantamount
to the destruction of evidence, and even if we were to follow the rule from the
cases Marchelletta cites holding that absolute immunity does not apply when a
prosecutor destroys exculpatory evidence,3 his claim still fails. It fails because he
cannot overcome the defense of qualified immunity, which shields both the
Prosecutor Defendants and the Law Enforcement Defendants. Marchelletta’s out-
of-circuit cases do not clearly establish anything with respect to defendants in this
circuit. See Hall ex rel. Jenkins v. Talladega City Bd. of Educ., 115 F.3d 821, 827
n.4 (11th Cir. 1997) (en banc) (“In this circuit, the law can be ‘clearly established’
for qualified immunity purposes only by decisions of the U.S. Supreme Court,
Eleventh Circuit Court of Appeals, or the highest court of the state where the case
arose.”).
The only binding cases that Marchelletta cites are inapposite. He points to
three Supreme Court cases from 1935, 1942, and 1959. See Napue v. Illinois, 360
U.S. 264, 79 S. Ct. 1173 (1959); Pyle v. Kansas, 317 U.S. 213, 63 S. Ct. 177(1942); Mooney v. Holohan, 294 U.S. 103, 55 S. Ct. 340 (1935). He asserts that
3
Marchelletta points to a few out-of-circuit cases that allow a plaintiff to pierce absolute
immunity where a prosecutor has destroyed evidence, but he fails to note that some of our sister
circuits have come out the other way. Compare, e.g., Yarris v. County of Delaware, 465 F.3d
129, 137 (3d Cir. 2006) (holding that a prosecutor is “not entitled to absolute immunity from suit
for constitutional violations caused by their alleged deliberate destruction of exculpatory
evidence”), with Heidelberg v. Hammer, 577 F.2d 429, 432 (7th Cir. 1978) (holding that a
prosecutor is entitled to absolute immunity from suit claiming that he destroyed and falsified
evidence).
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those cases stand for the proposition that a state cannot “procur[e] a criminal
conviction through the use of false testimony.” But by his own account those cases
are off point because the alleged misconduct here is not the “use of false
testimony,” but the production in discovery of an incomplete copy of two customs
reports. As the government notes, the first amended complaint does not allege that
the “composite forgery” document was ever introduced at trial.
Marchelletta argues in his reply brief that the rule against spoliation might
fall into the “obvious clarity” category of qualified immunity cases, but that
argument is too little, too late. See Sappupo, 739 F.3d at 683 (holding that an
argument advanced by an appellant for the first time in a reply brief is abandoned).
In sum, the district court was right to dismiss the first amended complaint on
absolute and qualified immunity grounds. The Prosecutor Defendants are entitled
to absolute immunity on the suppression claims and the Law Enforcement
Defendants are entitled to qualified immunity on those claims due to the
Prosecutor Defendants’ knowledge of the allegedly suppressed evidence. As to the
spoliation claim, both the Prosecutor Defendants and the Law Enforcement
Defendants are entitled to at least qualified immunity (if not absolute immunity for
the prosecutors) because there is no caselaw from the Supreme Court, this Court,
or the Georgia Supreme Court holding that this type of “alteration” of evidence by
a prosecutor or law enforcement officer violates a constitutional right. Given the
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preference for “resolving immunity questions at the earliest possible stage in
litigation,” Hunter v. Bryant, 502 U.S. 224, 227, 112 S. Ct. 534, 536 (1991), the
district court was right to dismiss the first amended complaint.
B. The District Court Properly Denied Marchelletta’s Rule 59(e) Motion
Turning to Marchelletta’s Rule 59(e) motion to alter judgment and for leave
to amend, the parties dispute the applicable standard. The defendants contend that
we must apply the ordinary Rule 59(e) standard, which requires that the movant
show “newly-discovered evidence or manifest errors of law or fact,” Arthur v.
King, 500 F.3d 1335, 1343 (11th Cir. 2007), while Marchelletta contends that he
need only satisfy the more lenient standard that governs a pre-judgment Rule 15(a)
motion for leave to amend, in which case “[t]he court should freely give leave
when justice so requires,” Fed. R. Civ. P. 15(a). We need not decide that question
because we agree with the district court that Marchelletta cannot satisfy even the
lenient Rule 15(a) standard and we affirm on that basis.
The district court denied Marchelletta’s motion on grounds of undue delay
and bad faith. These are proper grounds for denial of a Rule 15(a) motion for leave
to amend. See Foman v. Davis, 371 U.S. 178, 182, 83 S. Ct. 227, 230 (1962)
(holding that a court may exercise its discretion to deny a motion for leave to
amend for reasons like “undue delay, bad faith or dilatory motive . . . futility of
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amendment, etc.”). The district court properly denied the motion to amend on bad
faith grounds and we affirm on that basis.
As the district court explained, Marchelletta made several allegations in the
proposed second amended complaint, which was attached to his Rule 59(e) motion,
that directly contradicted allegations in the first amended complaint that the court
had dismissed. The proposed second amended complaint alleged that the Law
Enforcement Defendants withheld documents “with no reason to believe that the
prosecutors had or knew of the evidence.” But the first amended complaint had
alleged the opposite, affirmatively stating that the Prosecutor Defendants were
“aware of the existence” of that evidence. The district court concluded that
Marchelletta had obviously changed tack to plead around the dismissal of his
Brady claim against the Law Enforcement Defendants on grounds that the
prosecutors were aware of the documents in question. The proposed amendment
was, in the court’s words, an attempt to “use . . . the federal courts as a forum for
testing alternate legal theories seriatim.”
Marchelletta argues that one factual discrepancy is insufficient to support a
finding of bad faith. Maybe so or maybe not. It doesn’t matter because there’s
more than one flat out contradiction here. The proposed second amended
complaint also alleges that the Law Enforcement Defendants lied to the Prosecutor
Defendants about the confidential informant status of Defendant McBride in order
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to suppress impeachment evidence. Yet the first amended complaint had alleged
that the Prosecutor Defendants “knew that prosecution witness McBride was a
confidential government informant . . . and lied to the Court and defense counsel
about it.” Like the other contradiction, this one also sought to change the facts to
revive a Brady claim against the Law Enforcement Defendants that had been
dismissed the first time around.
It was not an abuse of discretion for the district court to deny Marchelletta’s
Rule 59(e) motion on bad faith grounds. Not even he denies that the proposed
second amended complaint contains about-face allegations that seek to evade the
district court’s reasons for dismissing the first amended complaint. Instead,
Marchelletta argues that because Federal Rule of Civil Procedure 8(d) permits
plaintiffs to plead alternative theories, “it is difficult to conceive how pleading
inconsistent facts in an amended complaint can constitute bad faith.” To the
contrary, that is easy to conceive in the context of this case. It is one thing to
present inconsistent theories of relief in one pleading. It is another thing entirely to
test a legal theory on one set of alleged facts, lose and suffer an adverse judgment,
and then use the first decision as a roadmap to alter the alleged facts, and then re-
plead post-judgment. Our caselaw does not “countenance the old sporting theory
of justice or the use of the federal courts as a forum for testing alternate legal
theories seriatim.” Fla. Evergreen Foliage v. E.I. Dupont De Nemours & Co., 470
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F.3d 1036, 1042 (11th Cir. 2006) (quotation marks omitted); see also Addington v.
Farmer’s Elevator Mut. Ins. Co., 650 F.2d 663, 667 (5th Cir. Unit A July 1981)
(holding that plaintiff’s “attempt[ ] to establish a new factual basis and legal
theory” a year after the suit was filed supported denying a motion to amend).
AFFIRMED.
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