
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 95-1375                             ELBA ROBLES-VAZQUEZ, ET AL,                               Plaintiffs, Appellants,                                          v.                             RAUL TIRADO GARCIA, ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF PUERTO RICO                [Hon. Gilberto Gierbolini, Senior U.S. District Judge]                                           __________________________                                 ____________________                                        Before                                Torruella, Chief Judge,                                           ___________                           Campbell, Senior Circuit Judge,                                     ____________________                           and DiClerico,* District Judge.                                           ______________                                 ____________________            Guy L. Heinemann, with whom Edelmiro Salas Garcia was on brief            ________________            _____________________        for appellants.            Sylvia Roger-Stefani, Assistant Solicitor General, with whom            ____________________        Carlos Lugo-Fiol, Solicitor General, and Edda Serrano-Blasini, Deputy        ________________                         ____________________        Assistant Solicitor, Department of Justice, were on brief for        appellees.                                 ____________________                                    April 10, 1997                                 ____________________                                    ____________________        *Of the District of New Hampshire, sitting by designation.                      CAMPBELL,  Senior  Circuit   Judge.     Plaintiffs-                                 _______________________            appellants  appeal  from  an  order  of  the  district  court            vacating an  earlier $2.25 million judgment  following a jury            verdict in plaintiffs-appellants'  favor on their  individual            claims  under   42  U.S.C.      1983  and  the   Puerto  Rico            Constitution.  At issue is the power of the district court to            grant judgment as a matter of law after a jury's verdict on a            ground never raised by the parties prior to submission of the            case to the jury.  We reverse.                                          I.                      We state the  facts in the light most  favorable to            the verdict.    See  Aetna  Casualty Surety  Co.  v.  P  &  B                            ___  ___________________________      _______            Autobody, 43 F.3d 1546, 1552 (1st Cir. 1994).            ________                      On  the  night  of  August  26,  1991,  defendants-            appellees  Raul  Tirado  Garcia  and Julio  Olivares  Febles,            assistant  marshals of  the  Superior Court  of Puerto  Rico,            arrested  Meraldo Bran                                 ~                                  a Cruz  at his  home for  nonpayment of            child  support pursuant to a valid arrest warrant.  Bran                                                                   ~                                                                    a had            no criminal record,  and the  marshals did  not consider  him            dangerous;  they did not handcuff or frisk him before placing            him in the back seat of the patrol car.                      During the drive, Bran                                           ~                                            a asked if they could stop by            a phone so he could call a relative to arrange for payment of            his child support arrearage.  The police officers agreed, but            Bran               ~                a  took advantage of the  opportunity to make his escape.                                         -2-                                          2            During the  subsequent pursuit on foot,  Tirado fired several            shots at Bran                        ~                         a, one of which hit him in the back of his leg.                      When Tirado  caught up with  Bran                                                      ~                                                       a, he shot  him in            the back at close  range.  Bran                                          ~                                           a collapsed, and  the marshals            brought  him to  the  hospital.   Despite extensive  surgery,            Bran               ~                a continued  to endure excruciating  pain, post-traumatic            stress  syndrome, chronic  depression,  stomach  problems,  a            swollen leg,  back pain, and a limp.  He died on December 24,            1992 of cardiac arrhythmia,  caused by the prescription drugs            he had been taking for the pain.                      Bran                         ~                          a   sued,   among   others,   Tirado   and  the            Commonwealth of Puerto Rico under 42 U.S.C.   1983,1 alleging            that Tirado  had used  excessive  force in  violation of  the            Fourth  and  Fourteenth  Amendments   to  the  United  States            Constitution2 and Article II,    7 and 10 of the  Puerto Rico                                            ____________________            1.  42 U.S.C.   1983 states, in relevant part, "Every person            who, under color of any statute, ordinance, regulation,            custom, or usage, of any State or Territory . . . subjects,            or causes to be subjected, any citizen of the United States            . . . to the deprivation of any rights, privileges, or            immunities secured by the Constitution and laws, shall be            liable to the party injured in an action at law . . . ."            2.  The Fourth Amendment to the United States Constitution            states, in relevant part, "The right of the people to be            secure in their persons, houses, papers, and effects, against            unreasonable searches and seizures, shall not be violated            . . . ."                   The Fourteenth Amendment states, in relevant part,            "[N]or shall any State deprive any person of life, liberty,            or property, without due process of law . . . ."                                         -3-                                          3            Constitution.3  After Bran                                     ~                                      a'sdeath, his common-law wife, Elba            Robles-Vasquez,  and  his  six  children  prosecuted  Bran                                                                     ~                                                                      a's            surviving claims as  his heirs.   His wife  and the  children            also  sought recovery  individually  for their  own pain  and            suffering, emotional  distress, and other damages, relying on            similar  provisions  of the  United  States  and Puerto  Rico            Constitutions.                      At  the  close   of  the   plaintiffs'  case,   the            defendants moved for judgment  as a matter of law  under Fed.            R. Civ.  P. 50(a).  This  motion did not include  as a reason            for dismissal of the  wife's and children's individual claims            that  Tirado's actions  had in  no way  been directed  at the            relationship between  Bran                                     ~                                      a and his wife and  children.4  The            court denied the motion.                                            ____________________            3.  Article II,   7 of the Puerto Rico Constitution states,            in relevant part, "No person shall be deprived of his liberty            or property without due process of law."                 Article II,   10 of the Puerto Rico Constitution states,            in relevant part, "The right of the people to be secure in            their persons, houses, papers and effects against            unreasonable searches and seizures shall not be violated."            4.  First Circuit case law holds that surviving family            members cannot recover in an action brought under   1983 for            deprivation of rights secured by the federal constitution for                                                                      ___            their own damages from the victim's death unless the            _________________            unconstitutional action was aimed at the familial            relationship.  See, e.g., Manarite v. City of Springfield,                           ___  ____  ________    ___________________            957 F.2d 953, 960 (1st Cir.), cert. denied, 506 U.S. 837                                          ____________            (1992).  "State action that affects the parental relationship            only incidentally, however, even though the deprivation may            be permanent, as in the case of unlawful killing by the            police, is not sufficient to establish a violation of a [sic]            identified liberty interest."  Pittsley v. Warish, 927 F.2d                                           ________    ______            3, 8 (1st Cir. 1991).                                         -4-                                          4                      The  jury  found  in  Bran                                               ~                                                a's  favor  in  his  own,            surviving action,  awarding to his heirs,  on Bran                                                             ~                                                              a's behalf,            one million  dollars in compensatory damages  and $500,000 in            punitive  damages.  The jury  also awarded to  Robles and the            children, in the claims  brought on their individual behalfs,            $250,000  each  in  compensatory   damages  and  $500,000  in            punitive damages to the group as a whole.                        The  court  remitted  the  punitive   damages  from            Bran               ~                a's own claims to  $250,000.  No appeal has  been brought            from the judgment entered upon Bran                                              ~                                               a's claims.                       The court, however, granted part of the defendants'            Rule 50(b) Motion for Renewal of the Motion For Judgment as a            Matter  of  Law  and  dismissed  the  wife's  and  children's            individual claims under   1983, holding that Tirado's conduct            was not  aimed at interfering with  Bran                                                   ~                                                    a's relationship with            his family as  required by First Circuit case law.  See infra                                                                ___ _____            note  6.  In a footnote, the court also dismissed plaintiffs-            appellants'   similar   claims    under   the   Puerto   Rico            Constitution,  saying  they were  "of  the same  ilk"  as the            federal  constitutional claims.   As  a result,  the district            court dismissed so  much of  the jury's award  as granted  an            additional $1,750,000 in  compensatory damages, and  $500,000            in  punitive  damages, to  the  wife  and children  in  their            individual rights.   The  plaintiffs appeal from  the court's            granting of the part of the Rule 50(b) motion.                                         -5-                                          5                                         II.                      Plaintiffs-appellants'  primary argument  on appeal            is that  defendants-appellees waived the  contention that, as            Tirado's  alleged unconstitutional  action against  Bran                                                                   ~                                                                    a was            not aimed at  the latter's relationship with  his family, the            plaintiff family  members could not recover  their individual            damages  resulting from Bran                                       ~                                        a's injury  and death.  See infra                                                                ___ _____            note 6.   The defendants did  not raise this point  of law in            any pre-trial motion, nor did they raise it in the Rule 50(a)            motion filed at trial.   Also, the defendants did  not object            to the court's jury instructions which authorized the jury to            award damages  to the individual  family members and  made no            mention before the  jury retired of  any legal limitation  of            this nature.                        The  first reference  to  the issue  surfaced in  a            rather weak suggestion of the point  in defendants-appellees'            post-verdict renewed motion for judgment  as a matter of  law            made under Fed. R.  Civ. P. 50(b).  However,  "[a] post-trial            motion for judgment can  be granted only on  grounds advanced            in the pre-verdict motion."   Fed. R. Civ. P.  50(b) advisory            committee's note to  the 1991 amendment; see  also Sanchez v.                                                     _________ _______            Puerto Rico Oil Co., 37 F.3d 712, 723 (1st Cir. 1994) (same).            ___________________            "The  purpose of the Rule  50(b) requirement is  to alert the            opposing party to the  movant's claim of insufficiency before            the case goes to the jury,  so that his opponent may possibly                                         -6-                                          6            cure any deficiency in his case should the motion have merit,            and also  so that the judge  may rule on the  adequacy of the            evidence  without   impinging  on  the   jury's  fact-finding            province."   Martinez Moll v.  Levitt & Sons  of Puerto Rico,                         _____________     ______________________________            Inc., 583 F.2d 565, 569 (1st Cir. 1978).              ____                      An appellate  court may not ordinarily  consider an            issue raised for the first time in a Rule 50(b) motion on the            merits.  See id.  at 568.  "[T]he  exceptions [to this  rule]                     ___ ___            are few  and far between, and appellate discretion should not            be  affirmatively exercised  unless  error is  plain and  the            equities heavily  preponderate in  favor  of correcting  it."            Correa v.  Hospital San  Francisco, 69  F.3d 1184,  1196 (1st            ______     _______________________            Cir. 1995), cert. denied, 116 S. Ct. 1423 (1996).5                          ____________                      A district court has no more leeway than a court of            appeals  to consider  an  issue raised  post-verdict for  the            first  time in a Rule  50(b) motion.   See generally American                                                   _____________ ________            and Foreign Insurance Company v.  Bolt, 106 F.3d 155,  159-60            _____________________________     ____            (6th Cir. 1997)  ("While it is accepted that  a judge may sua                                            ____________________            5.  Similarly, a failure to object to jury instructions            constitutes a waiver.  Fed. R. Civ. P. 51 states, in relevant            part, "No party may assign as error the giving or the failure            to give an instruction unless that party objects thereto            before the jury retires to consider its verdict, stating            distinctly the matter objected to and the grounds of the            objection."  See also Putnam Resources v. Pateman, 958 F.2d                         ________ ________________    _______            448, 456 (1st Cir. 1992) ("Silence after instructions . . .              typically constitutes a waiver of any objections."); La Amiga                                                                 ________            del Pueblo, Inc. v. Robles, 937 F.2d 689, 690-91 (1st Cir.            ________________    ______            1991) (holding that unobjected to jury instructions become            the law of the case); Quinones-Pacheco v. American Airlines,                                  ________________    __________________            Inc., 979 F.2d 1, 4 n.3 (1st Cir. 1992) (same).            ____                                         -7-                                          7            sponte grant a directed  verdict pursuant to Fed. R.  Civ. P.            50(a)  . . . allowing a judge to sua sponte raise a new issue            post-verdict, and proceed to overturn  a jury verdict on that            basis contravenes  the dictates  of  Rule 50(b).")  (citation            omitted) (citing cases).                      Here, one  might consider  it a close  call whether            the district court's prior failure, on its own initiative, to            have  barred plaintiffs' Fourteenth  Amendment claims because            of our  "aimed at  the relationship" requirement  amounted to            plain  error, so  as to  allow the court  to engage  later in            post-verdict  correction.6    But  we need  not  decide  that            question, because  clearly the district court's prior failure            to have voluntarily barred  plaintiffs' parallel claims under            Article  II,    10 of  the Puerto  Rico Constitution  was not                                                                      ___            plain error, if, in fact, it was error at all.                        Stating that  the elements  of the two  claims were            identical,  the court instructed  the jury to  award only one            set  of damages  for the  plaintiffs' individual  claims both                                            ____________________            6.  While this Circuit has adopted an "aimed at the            relationship" requirement, see Soto v. Flores, 103 F.3d 1056,                                       ___ ____    ______            1062 (1st Cir. 1997), some other circuits have not, see,                                                                ___            e.g., Kelson v. City of Springfield, 767 F.2d 651, 653-55            ____  ______    ___________________            (9th Cir. 1985); Estate of Bailey by Oare v. County of York,                             ________________________    ______________            768 F.2d 503, 509 n.7 (3d Cir. 1985); Bell v. City of                                                  ____    _______            Milwaukee, 746 F.2d 1205, 1244-45 (7th Cir. 1984), and the            _________            Supreme Court has not yet ruled on this issue.                                         -8-                                          8            under   the   Fourteenth  Amendment   and  the   Puerto  Rico            Constitution.7   It follows  that even if  the district court            committed plain error in sending  to the jury the plaintiffs'            individual claims  under  the  Fourteenth  Amendment  of  the            United States Constitution,  the fact that it  did not commit            plain error in allowing the Puerto Rican constitutional prong            of  the claims to go forward prevented it from later allowing            defendants' Rule 50(b) motion  to invalidate the jury's award            of individual damages to plaintiffs.                        In Puerto Rico, there  is no precedent of  which we            are aware holding that family members of a deceased victim of            lethal force used by the police in violation of Article II,              10 of the Puerto Rico Constitution either have or do not have            a  private right of action for their own damages derived from                                            ____________________            7.  The district court instructed the jury, "The plaintiffs'            claims under the Puerto Rico Constitution essentially mirror            and are the same as those asserted under the United States            Constitution."  The court further stated:                      Since the elements of this claim [under                      Article II,   10 of the Puerto Rico                      Constitution] are the same as under the                      Federal Constitution, I will not repeat                      them here.  The verdict form that will be                      provided to you after I finish my                      instructions will reflect the claims                      under both the Federal and Puerto Rico                      Constitutions.  If you find liability                      under both constitutions, or either of                      them, the amount of damages you award                      will only be provided to the plaintiff                      once, not double.  That is, no double                      recovery may be granted by you.                                         -9-                                          9            the  victim's  injury and  death.   No  Puerto  Rico opinion,            however, forecloses  such an action, and  decisions in other,            related areas  of Puerto  Rico law  indicate that  the Puerto            Rico Supreme Court might allow it.                      The provisions  of the Puerto Rico Constitution are            said  to operate ex proprio  vigore, without the  need for an                             __________________            effectuating  statute comparable to    1983.  The Puerto Rico            Supreme Court has written,  "The fact that a law has not been            enacted defining  privacy rights does not relieve us from our            duty to give effect to that provision, since it is known that            all constitutional  provisions are,  by their own  nature, of            privileged  norm  under  the legislation,  self-exercisable."            Quinones v. Commonwealth, 90 P.R.R. 791, 794 (1964).            ________    ____________                      More recently, the Court wrote:                           We  have  repeatedly  held that  the                      character and  primacy  of the  right  of                      privacy  operate  ex proprio  vigore, and                                        __________________                      may  be  enforced  even  between  private                      individuals.    We  must  reach  the same                      conclusion    with    regard    to    the                      constitutional  right which  protects the                      inviolability of the dignity of the human                      being,  and with  regard  to  that  right                      which protects every worker against risks                      to his personal integrity in his work.                           We have also recognized the right to                      be compensated for  damages caused when a                      private  citizen  encroaches upon  one of                      these rights.            Arroyo  v. Rattan  Specialties,  17 O.T.S.  43, 74-75  (1986)            ______     ___________________            (citations omitted).                                         -10-                                          10                      Under this rationale, the Puerto Rico Supreme Court            held that the victim of an illegal search had a private right            of action for damages  under the Organic Act of  Puerto Rico,            even  before  the  Puerto  Rico Constitution  had  come  into            existence.  See Miguel v. Hernaiz Targa & Co., 51 P.R.R. 568,                        ___ ______    ___________________            574-75 (1937).   More recently,  the Court  has recognized  a            private  right of action for violations of Article II,   10's            ban  on  wiretapping,  see   Puerto  Rico  Telephone  Co.  v.                                   ___   ____________________________            Martinez,  14 O.T.S. 420, 435 (1983); see also Menda Biton v.            ________                              ________ ___________            Menda,  796  F.  Supp.  631,  633   (D.P.R.  1992),  and  for            _____            violations of Article  II,   8's right to  protection against            abusive attacks against one's  reputation or family life, see                                                                      ___            Ayala  v.  San Juan  Racing  Corp., 12  O.T.S.  1012, 1019-20            _____      _______________________            (1982);  Colon  v.  Romero  Barcelo, 12  O.T.S.  718  (1982);                     _____      _______________            Gonzalez  v. Cuerda,  88  P.R.R. 121,  130  (1963); see  also            ________     ______                                 _________            Rivera-Flores v. Puerto  Rico Telephone Co., 64 F.3d 742, 751            _____________    __________________________            n.9 (1st Cir. 1995) (recognizing that Article  II,    1 and 8            operate ex proprio vigore  to make violators liable for  tort                    _________________            damages).                      Recognition of a  private right of action by  or on            behalf of the victim  of a constitutional wrong does  not, of            course, necessarily mean that  members of the victim's family            may sue  in their individual capacities  for damages suffered            as  a result  of the victim's  death or injury.   Puerto Rico            tort  law, however, allows the  close relatives of the victim                                         -11-                                          11            in unlawful death  cases to  recover for  their own  damages.            See  Hernandez v. Fournier, 80 P.R.R. 93, 96-104 (1957); Caez            ___  _________    ________                               ____            v. U.S.  Casualty Co., 80  P.R.R. 729, 734-36  (1958); Rojas-               __________________                                  ______            Hernandez v.  Puerto Rico Electric Power  Authority, 925 F.2d            _________     _____________________________________            492, 493 (1st Cir. 1991).   As the Puerto Rico Supreme  Court            wrote,  "Thus, our jurisprudence admits that  the next of kin            of  the victim are entitled  to compensation for the material            and moral damages which  they personally suffered, whether or            not they are heirs of the deceased."  Hernandez, 80 P.R.R. at                                                  _________            99.            The same could  well be true  in the realm  of            constitutional torts as well, although the Puerto Rico courts            have yet to rule definitively.  See Colon (allowing relatives                                            ___ _____            of a murdered man to recover under, inter alia, Article II,              8 of the Puerto Rico Constitution's guarantee of privacy, for            the use  of pictures of  the deceased's  corpse in  political            advertisements, without clarifying  whether the recovery  was            for the breach of the deceased's privacy or the relatives').                      The Supreme Court of Puerto Rico seems particularly            likely to recognize  a private right  of action for  victims'            family  members in the privacy arena.  The Court has declared            that the right of privacy set  forth in sections 1, 8, and 10            of  Article  II  of  the  Puerto  Rico  Constitution  "has  a            privileged place in the wide range of rights protected by the            Constitution."  Commonwealth v. Puerto Rico Telephone Co., 14                            ____________    _________________________            O.T.S.  505, 514  (1983);  see also  Kerr-Selgas v.  American                                       ________  ___________     ________                                         -12-                                          12            Airlines,  Inc.,   69  F.3d   1205,  1213  (1st   Cir.  1995)            _______________            (recognizing  the "great importance"  attached by  the Puerto            Rico  Supreme   Court  to  the   Puerto  Rico  Constitution's            guarantee of the right of privacy and human dignity).                        Although the relevant language  of Article II,   10            of the Puerto Rico  Constitution is identical to that  of the            Fourth  Amendment  to  the United  States  Constitution,  the            Puerto Rico Supreme Court has declared that  it may interpret            a  provision of  the Puerto  Rico Constitution as  being more            protective  of  the  right  involved than  is  the  analogous            provision of the  United States Constitution.  See  People v.                                                           ___  ______            Conde Pratts, 15 O.T.S. 411, 416-17 (1984).  Thus, the Puerto            ____________            Rico Supreme Court could and might decide against adopting an            "aimed  at  the  relationship"   test  for  the  Puerto  Rico            Constitution even if the United States Supreme Court  were to            adopt  one for the United States Constitution.  The fact that            the  First Circuit has adopted  such a test  under the United            States Constitution is  not determinative of  the plaintiffs'            rights under the Puerto Rico Constitution.                      We conclude, therefore, that, in the absence of any            Puerto   Rico  authority   recognizing  an   "aimed  at   the            relationship" requirement, and given Puerto Rico law's strong            policy in  favor of compensating the  tort victim's relatives            for their  independent damages,  it is at  least questionable            whether  the Puerto Rico courts  would read an  "aimed at the                                         -13-                                          13            relationship"  requirement into private actions brought under            Article II,   10 of the Puerto Rico Constitution.  It follows            that it  was not plain error  for the district court  to send                             _____            the plaintiffs'  individual  claims  under  the  Puerto  Rico            Constitution  to the jury.  This being so, the district court            later committed error when, following the verdict, it allowed            the defendants'  Rule 50(b)  motion and dismissed  the jury's            damages  award, which  rested separately  on the  Puerto Rico            Constitution  as  well  as,  doubtfully,  on  the  Fourteenth            Amendment.                      Had the defendants wished to preserve the "aimed at            the relationship" issue, in particular under Puerto Rico law,            for ruling  by the district court and  ourselves, they should            have raised  it when they moved  for judgment as a  matter of            law during the trial under Rule 50(a) or, at least, by way of            objection to  the  court's jury  instruction  submitting  the            individual  plaintiffs'  claims  to  the  jury.    This  they            completely failed to do.                      Up  until  this point,  we  have  assumed that  the            district court's  power to engage in  post-verdict correction            was  limited  to instances  of plain  error     a  very tough            standard  in civil  cases.    It  could possibly  be  argued,            however, that district and appellate courts possess some sort            of additional  authority to consider  a waived  issue on  the            merits if it presents an important and novel question of law.                                         -14-                                          14            See  City of  Newport v.  Fact Concerts,  Inc., 453  U.S. 247            ___  ________________     ____________________            (1981)  (choosing to  review a  waived issue  de novo  on its            merits because the district  court had done so, the  court of            appeals   had  not   disagreed  with  the   district  court's            conclusions, and the issue  was a novel question of  law that            was important and likely to recur); Getty Petroleum  Corp. v.                                                ______________________            Bartco  Petroleum Corp., 858 F.2d  103, 107-08 (2d Cir. 1988)            _______________________            (examining an issue on the  merits despite a party's  failure            to object  to a jury  instruction because the  district court            had considered the  question on  the merits  and because  the            issue involved was an important and novel question of federal            law, citing  City of  Newport), cert.  denied, 490  U.S. 1006                         ________________   _____________            (1989);  Weaver v. Bowers, 657 F.2d 1356, 1361 (3d Cir. 1981)                     ______    ______            (relying partly on City of Newport as authority to examine on                               _______________            the merits  a defense of failure to  state a claim upon which            relief  can be granted which  was not raised  until after the            conclusion   of  the   trial,   stating  that   "in   unusual            circumstances the courts of  appeals also have inherent power            to  reach issues  although not  timely raised  below"), cert.                                                                    _____            denied, 455 U.S. 942 (1982).              ______                      The  short  answer  to   any  contention  that  the            district court was empowered  to rule here by the  above City                                                                     ____            of Newport principles is that the issue in question is one of            __________            Puerto Rico law on  which the Puerto Rico Supreme  Court, and            not we or even the United States Supreme Court, has the final                                         -15-                                          15            say.8   As  such, consideration  of the  issue on  the merits            would "neither  . . . promote  the interests  of justice  nor            . . . advance  efficient judicial  administration."   City of                                                                  _______            Newport, 453 U.S. at 257.            _______                      As  we  review  the  defendants'  belated objection            under  the plain error standard  and find no  plain error, at            least in respect to the Puerto Rico law claim, we reverse the            district court's post-trial grant of judgment as  a matter of            law on the plaintiffs' individual damages claims.                      We  note that  because  the district  court granted            judgment  as a  matter  of  law  to  the  defendants  on  the            plaintiffs'  individual  claims,  it  did  not  consider  the            defendants'  request, included within their post-trial motion            under Rules  50(b) and  59, for  a remittitur  and for  a new            trial  on these  claims.   As  we  have restored  the  jury's            verdict, we remand to the district  court so that it may  now            consider  these requests to  the extent  the parties  wish to            pursue them.                      Vacated and remanded.                      ____________________                                            ____________________            8.  A longer answer could be that whatever power the Supreme            Court relied upon in City of Newport was limited to itself                                 _______________            and would least likely apply to non-appellate tribunals, such            as the district courts, even assuming it were to apply to            courts of appeal, which remains doubtful, although we do not            rule on the matter.  As the Court wrote, "While concluding            that in this unusual case, the interest of justice warrants            our plenary consideration, we express no view regarding the            ___            application of the plain-error doctrine by the Courts of            Appeals."  City of Newport, 453 U.S. at 257 n.16 (citation                       _______________            omitted) (emphasis added).                                         -16-                                          16
