
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________          No. 93-1064                            JOSEPH SENRA AND MARIA SENRA,                                Plaintiffs-Appellants,                                          v.                             STEPHEN CUNNINGHAM, ET AL.,                                Defendants-Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                           FOR THE DISTRICT OF RHODE ISLAND                    [Hon. Ronald R. Lagueux, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                              Torruella, Circuit Judge,                                         _____________                           Campbell, Senior Circuit Judge,                                     ____________________                                Boudin, Circuit Judge.                                        _____________                                _____________________               Stephen J. Fortunato, Jr., with whom Fortunato &  Tarro, was               _________________________            __________________          on brief for appellants.               Marc  DeSisto, with  whom Carroll,  Kelly &  Murphy,  was on               _____________             _________________________          brief for appellees Stephen Cunningham and Douglas Laird.                                 ____________________                                  November 16, 1993                                 ____________________                    TORRUELLA, Circuit Judge.   Plaintiff-appellants Joseph                               _____________          and   Mar a  Senra  sued  two  Cumberland,  Rhode  Island  police          officers,  Stephen Cunningham and Douglas Laird, for violation of          their  constitutional rights under  42 U.S.C.    1983 and various          state laws.  Mr. Senra alleged that  he had been falsely arrested          and  imprisoned, subjected  to  excessive force,  and maliciously          prosecuted;  Mrs. Senra claimed  only that the  officers had used          excessive force against her during the arrest of her husband.  At          the close of the evidence, the district court granted defendants'          motion  for  judgment  as  a  matter  of  law  on  the  malicious          prosecution claims.   The remaining counts went to  a jury, which          found for the police officers.  The court then denied plaintiffs'          motion for a new trial, and plaintiffs appealed.  For the reasons          stated herein, we affirm.                                          I                                          I                                      Background                                      Background                                      __________                    On May 20, 1989, at approximately 11:30 p.m., Mr. Senra          struck a neighbor's car while driving home.  Instead of stopping,          he  proceeded to  his  house just  down  the street,  purportedly          intending  to settle the matter the next day.  The neighbor heard          the accident and learned from a  bystander that Mr. Senra had hit          his car.  The neighbor called the police and went to  Mr. Senra's          home, where he was told to return in the morning.                    The Senras claim that Mr. Senra  answered the door when          the police arrived,  but before he could explain,  he was grabbed          by the officers, dragged out of  the house, and thrown over  some                                         -2-          hedges in  the front lawn.   During the struggle,  his right arm,          which was withered from polio, was broken.                    The  police officers offer  a different version  of the          story.   They contend that  no one answered when  they originally          knocked at the Senras' door.  Mr. Senra only appeared later after          the officers remained  in the yard to  wait for a tow  truck they          had  called to  remove Mr.  Senra's  car.   The officers  smelled          alcohol  on his breath  and noticed that he  was staggering.  Mr.          Senra shouted  vulgarities at the officers and  flailed his arms.          He then lost his balance, tripped over the shrubbery, and fell to          the ground.  At that point, Officer Laird approached Mr. Senra to          restrain him  and a struggle  ensued.  The officers  contend that          Mr. Senra attempted to hit, kick, and bite Officer Laird and that          Mr. Senra kicked Officer Cunningham in the groin when he tried to          assist Officer Laird.                    The Senras  claim that,  after Mr.  Senra was  attacked          without provocation,  Mrs. Senra  sought to  assist her  husband.          They maintain that one  of the officers hit  her in the  stomach,          loosening  stitches from her  recent hysterectomy.   The officers          assert that  Mrs. Senra and  her daughter struck and  kicked them          while they sought  to restrain Mr. Senra.   Mrs. Senra ultimately          locked herself in the car to prevent its removal.                    After the altercation subsided,  Mr. Senra informed the          officers of  the pain in  his arm.   He was taken  to a hospital,          where he  learned that  his arm  was broken.   A  nurse from  the          hospital  testified that Mr.  Senra was  uncooperative, combative                                         -3-          and vulgar  when he arrived and  that a blood  test revealed that          his  blood alcohol  level  exceeded  the  permissible  limit  for          driving a motor vehicle.                    Mr.  Senra was later  charged with assaulting  a police          officer,   disorderly  conduct,  and  leaving  the  scene  of  an          accident.  A  jury acquitted him of assault,  and a judge granted          his  motion for judgment  of acquittal on  the disorderly conduct          charge.     The  motor   vehicle  offense  was   administratively          dismissed.                    The Senras  then brought  this action  in the  district          court seeking damages.  After an unfavorable outcome,  the Senras          appealed.                                          II                                          II                                  Jury Instructions                                  Jury Instructions                                  _________________                    The Senras first  assign error to the  district court's          refusal to consider  jury instructions that they  offered shortly          before  the  close of  the  evidence.    The court  rejected  the          instructions  because,  in  its  view,  the  plaintiffs'  proffer          arrived too  late, in violation  of the court's  Amended Pretrial          Order.   That  Order required  the  parties to  submit "full  and          complete proposed  jury instructions"  to the  court twenty  days          prior to  trial.   The  Senras  claim that,  notwithstanding  the          district  court's   broad  power   to  organize   and  facilitate          litigation  pursuant to  Federal  Rule  of  Civil  Procedure  16,          requiring instructions much  in advance of trial and  refusing to          consider instructions proposed  before the close of  the evidence                                         -4-          conflicts with Federal Rule of Civil Procedure 51.1                    Rule  16 provides the district courts  with  a powerful          mechanism  to organize  and expedite  litigation.   The  pretrial          conferences  contemplated  by the  Rule  create  an indispensable          opportunity  to clarify  and delimit  issues to  be tried  and to          establish a timetable  for the proceedings as a  whole.  As such,          the   outcome  of  pretrial   conferences  are  central   to  the          litigation,  for as  the  Rule  states,  pretrial  orders  "shall          control the subsequent course of  the action unless modified by a          subsequent order."   Fed. R. Civ. P. 16(e).   "Trial judges enjoy          great latitude in carrying out case-management functions."  Jones                                                                      _____          v. Winnepesaukee Realty, 990 F.2d 1, 5 (1st Cir. 1993) (citing In             ____________________                                        __          re San Juan  Dupont Plaza Hotel Fire Litig., 859  F.2d 1007, 1019          ___________________________________________          (1st  Cir.   1988)).    The   Rule  also  allows   sanctions  for          noncompliance.  Fed. R. Civ. P.  16(f).  The district court,  for          example, may  refuse to  hear testimony or  give instructions  on          issues not  originally encompassed  by the  pretrial order.   See                                                                        ___          generally Charles  A. Wright,  Arthur R. Miller  & Mary  K. Kane,          _________          Federal  Practice and  Procedure     1527 (1990).    We review  a          ________________________________          district  court's imposition of  sanctions for failure  to comply          with pretrial  orders only for  abuse of discretion.   Jones, 990                                                                 _____                                        ____________________          1  Fed. R. Civ. P. 51 provides, in relevant part:                      At the close  of the evidence or  at such                      earlier time  during  the  trial  as  the                      court reasonably  directs, any  party may                      file  written  requests  that  the  court                      instruct the jury on the law as set forth                      in the requests.                                         -5-          F.2d at  5; Vel zquez-Rivera  v. Sea-Land  Serv., Inc.,  920 F.2d                      ________________     _____________________          1072,  1075  (1st  Cir.  1990).    "Although  such a  deferential          approach  does not  confer carte  blanche power  to  the district                                     _____  _______          court," litigants  bear  a formidable  burden  to show  that  the          district court erred.  Jones, 990 F.2d at 5.                                 _____                    The  district  court  requested  the jury  instructions          twenty days  in advance  of trial.   The  pretrial order was  not          ambiguous and appellants offered two instructions within the time          set by the court.  We have  found no cases that even suggest that          an order  requiring jury instructions  before trial would  in any          way violate the Federal Rules of Civil Procedure.   Absent such a          case,  the  district  court's  refusal  to  consider  appellants'          proffered  instructions  was  not an  abuse  of  discretion where          appellants  understood   that  the   court   had  requested   the          instructions  in advance  of trial  and  had not  shown that  the          tardily  filed jury instructions  pertained to a  matter that was          not foreseeable at the time set by the court.                    Having  found  no  error  in  the  court's  refusal  to          consider  appellants'  proffered  instructions,  we  turn to  the          appellants'  objections  to  the  instructions  on  appeal.    To          preserve an  objection on appeal  to a jury instruction,  a party          must  contemporaneously object to the instruction.  The exception          must apprise the judge of the  basis of the error.  Fed. R.  Civ.          P. 51 ("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                                         -6-          matter objected to and the  grounds of the objection.").  Failure          to timely  object waives  the error  on appeal.   See  Elgabri v.                                                            ___  _______          Lekas, 964 F.2d 1255, 1258 (1st Cir. 1992).          _____                    In  this case,  the  record  indicates  that  the  jury          retired to deliberate prior to appellants' objections to the jury          instructions.  Appellants therefore have waived their exceptions.          We  have  reviewed,  as we  must,  the  claims of  error  made by          appellants in relation  to the instructions to  ensure that there          has been  no plain error  amounting to a miscarriage  of justice.          See Elgabri, 964 F.2d at 1259; Wells Real Estate, Inc. v. Greater          ___ _______                    _______________________    _______          Lowell  Bd. of  Realtors, 850  F.2d  803, 809  (1st Cir.),  cert.          ________________________                                    _____          denied, 488 U.S. 955 (1988).  We are satisfied that no such error          ______          exists.                                         III                                         III                                 Evidentiary Rulings                                 Evidentiary Rulings                                 ___________________                    The Senras contend that  the district court erroneously          admitted  into  evidence  Officer   Laird's  knowledge  of  prior          incidents of intoxication and domestic disturbance at Mr. Senra's          home and evidence that Mr. Senra previously had been convicted of          driving  while  intoxicated.   Officer  Laird  testified  that he          personally had been  involved in at least six  incidents in which          the police were called to  respond to domestic disturbances  that          resulted  from Mr. Senra's  drunken and  violent  behavior.   The          drunk driving conviction occurred in 1986.  Mr. Senra argues that          Federal  Rules  of  Evidence  403,  404,  608,  and  609  require          exclusion of such evidence.                                         -7-                    In  this  case,  Mr.  Senra  was  not  on  trial  as  a          defendant.   Rather,  he  sued  the police  officers  for use  of          excessive  force  and   false  arrest.    To  defend  against  an          allegation  of  excessive  force,  defendant officers  needed  to          demonstrate that  their  conduct was  "objectively reasonable  in          light of the facts  and circumstances confronting them."   Graham                                                                     ______          v. Connor, 490  U.S. 386, 397 (1989).   Defendant police officers             ______          introduced  the testimony  about  Mr. Senra's  prior  conduct  to          explain the "facts  and circumstances" that they  confronted when          they  arrived  at the  Senra  household  and to  demonstrate  the          reasonableness  of  their  conduct.     Similarly,  the  officers          proffered the fact of conviction to show a motivation for fleeing          the scene  of the accident.   They theorized that Mr.  Senra left          the  accident because  he wanted  to avoid another  drunk driving          conviction.                    With respect to the officers explanation of their prior          dealings with Mr. Senra, we find that the district court did  not          err by admitting the evidence.   The officers' prior knowledge of          Mr.   Senra  is   relevant  because   it  sheds   light  on   the          reasonableness  of their responses,  a matter quite  pertinent to          the undue  force claim.  Because  the evidence is probative  of a          matter other than Mr. Senra's bad character, Rule 404(b) poses no          bar.2                                          ____________________          2  Fed. R. Evid. 404(b) provides in relevant part:                      Evidence of other crimes, wrongs, or acts                      is not admissible to prove the  character                      of  a person in  order to show  action in                                         -8-                    Appellants'    Rule   403    challenge   is    likewise          unavailing.3  Admittedly the evidence  is of limited value to the          officers  since their  version  of  the events  on  the night  in          question amply supported their actions without reference to prior          bad   conduct.    The  prejudicial  impact,  however,  cannot  be          considered  significant  in  light  of  the  officers'  testimony          concerning  Mr. Senra's outrageous  behavior on that  night.  The          officers  testified  that  they smelled  alcohol  on  Mr. Senra's          breath and that Mr.  Senra acted in a hostile  manner by verbally          and physically attacking  them.  As such, the  district court did          not abuse its discretion by  admitting the testimony.  See United                                                                 ___ ______          States v. Walters, 904 F.2d 765, 768 (1st Cir. 1990).          ______    _______                    With  respect to Mr. Senra's prior conviction for drunk          driving,  the district  court admitted  the  evidence because  it          believed that the evidence was relevant to Mr. Senra's motivation          for  leaving the  scene  of  the accident.    His motivation  for          leaving the scene was irrelevant,  however, to any disputed issue                                        ____________________                      conformity therewith.   It  may, however,                      be admissible for other purposes, such as                      proof  of  motive,  opportunity,  intent,                      preparation,   knowledge,  identity,   or                      absence of mistake or accident . . . .          3  Fed. R. Evid. 403 states:                      Although   relevant,   evidence   may  be                      excluded  if   its  probative   value  is                      substantially outweighed by the danger of                      unfair   prejudice,   confusion   of  the                      issues,  or misleading  the  jury, or  by                      considerations of  undue delay,  waste of                      time,   or   needless   presentation   of                      cumulative evidence.                                         -9-          in the  case.  To justify arrest, it  would be sufficient to know          that he had  departed.  The previous conviction  therefore had no          probative  value.    It  is  also quite  likely  that  the  prior          conviction  would  be  inadmissible  for impeachment  under  Rule          609.4                      Assuming thus that  it was error  to admit evidence  of          the prior conviction, we consider whether the error was harmless.          "The  erroneous  admission  of  evidence  of  earlier  crimes  is          harmless if  we determine that  it is 'highly probable'  that the          error  did not  contribute to  the  verdict."   United States  v.                                                          _____________          Gonz lez-S nchez,  825 F.2d  572, 580  (1st  Cir. 1989)  (quoting          ________________          United States v. Bosch, 584  F.2d 1113, 1117-18 (1st Cir. 1978)).          _____________    _____          The jury was asked to  choose between two contradictory  versions          of the  events  in question.   The  verdict did  not  hinge on  a                                        ____________________          4  Fed. R. Evid. 609 states in pertinent part:                      (a) General  rule. -- For the  purpose of                      attacking the credibility of a witness,                       (l) evidence that a witness other than an                      accused  has been  convicted  of a  crime                      shall be admitted,  subject to Rule  403,                      if the  crime was punishable  by death or                      imprisonment in excess  of one year under                      the  law  under  which  the  witness  was                      convicted, and  evidence that  an accused                      has been  convicted of such a crime shall                      be admitted if the  court determines that                      the  probative  value of  admitting  this                      evidence outweighs its prejudicial effect                      to the accused; and                      (2)  evidence that  any witness  has been                      convicted of a crime shall be admitted if                      it   involved    dishonesty   or    false                      statement, regardless of the punishment.                                         -10-          particular piece  of evidence  or improper  coloring provided  by          evidence of prior bad acts.  Because three sources (both officers          and  the hospital nurse) testified that Mr. Senra was intoxicated          and belligerent  on the  night of the  arrest, the effect  of the          evidence of prior incidents, which  occurred at least two or more          years  earlier, was  greatly muted.    If the  jury believed  the          police and the hospital nurse, which it apparently did, Mr. Senra          hit a parked  car, fled the scene,  and attacked the police  in a          drunken fit.  This evidence was more than sufficient to support a          verdict  for the  defendants  and  remote  incidents  of  similar          conduct added little.  The improper admission of the evidence was          therefore harmless.                                          IV                                          IV                                Malicious Prosecution                                Malicious Prosecution                                _____________________                    At the close  of all the  evidence, the district  court          granted defendants  judgment as  a matter of  law on  Mr. Senra's          action for malicious prosecution under   1983 and a pendent state          law claim.5   The district  court directed the  verdict of the             1983  claim  because Mr.  Senra  had  not demonstrated  that  the          alleged  misconduct  rose  to  constitutional  magnitude.    With          respect to the state law claim, the  court found that as a matter          of law, Mr. Senra failed  to show that defendants "initiated" the          prosecution within  the meaning of  that term under  Rhode Island                                        ____________________          5   Although Mr. Senra's  original complaint and brief  on appeal          lacked  specificity,  the  district  court  treated  Mr.  Senra's          proffers as alleging both state and federal causes of action.  As          such, we will do so as well.                                         -11-          law.  Mr. Senra now argues that the court erred in  directing the          verdict on both actions.                      "Under the  accepted standard  of appellate  review, we          'examine the evidence and the  inferences reasonably to be  drawn          therefrom  in  the  light most  favorable  to  the  nonmovant' to          determine  whether  'reasonable  persons  could  reach  but   one          conclusion.'"  Veranda Beach Club v. Western Surety Co., 936 F.2d                         __________________    __________________          1364, 1375 (1st Cir. 1991)  (quoting Wagenmann v. Adams, 829 F.2d                                               _________    _____          196,  200 (1st Cir. 1987)).  "In conducting that exercise, we may          not consider the  credibility of witnesses, resolve  conflicts in          testimony,  or evaluate the weight of  the evidence."  Wagenmann,                                                                 _________          829 F.2d at 200.                    To  state a  federal  claim for  malicious  prosecution          under    1983,  "the  complaint must  assert  that the  malicious          conduct   was  so  egregious  that  it  violated  substantive  or          procedural due  process rights  under the  Fourteenth Amendment."          Torres v. Superintendent  of Police, 893 F.2d 404,  409 (1st Cir.          ______    _________________________          1990).    A substantive  due  process violation  occurs  when the          malicious prosecution  is  "conscience-shocking."   Id.  at  410.                                                              ___          "Where  plaintiff  has  not  been  physically  abused,  detained,          prosecuted due  to racial  or political  motivation or  otherwise          deprived of equal protection of  the law, courts are reluctant to          find  'conscience  shocking'  conduct   that  would  implicate  a          constitutional violation."  Id.   A procedural due  process claim                                      ___          will  lie where the alleged conduct deprived plaintiff of liberty          by "a distortion and corruption of the processes of law," such as                                         -12-          "falsification  of  evidence  or  some  other  egregious  conduct          resulting in  a denial of  a fair trial."   Id.   Furthermore, to                                                      ___          establish  a  malicious prosecution  claim  under    1983  on the          grounds  that his right  to procedural due  process was violated,          the  plaintiff must  "show  that  there  was  no  adequate  state          postdeprivation remedy available to rectify the harm."  Id.                                                                  ___                    "'The  federal claim under [42 U.S.C.] section 1983 for          malicious prosecution differs  from the state civil  suit in that          it requires  that state  officials  acting 'under  color of  law'          institute  the criminal  proceedings  against  the plaintiff  and                                                                        ___          thereby deprive him  of rights secured under  the Constitution.'"          ______________________________________________________________          Smith  v. Massachusetts Dept. of  Correction, 936 F.2d 1390, 1402          _____     __________________________________          (1st Cir. 1991) (quoting Torres, 893 F.2d at 409) (emphasis added                                   ______          in  Smith).    Malicious   prosecution  does  not  amount  to   a              _____          constitutional  tort, unless the  plaintiff has been  deprived of          life,  liberty, or  property,  or  another constitutional  right.          Ayala-Mart nez  v.  Angler , 982  F.2d  26,  27 (1st  Cir.  1992)          ______________      _______          (citing Albright  v. Oliver,  975 F.2d 343,  347 (7th  Cir. 1992)                  ________     ______          (holding  that malicious prosecution,  like defamation,  does not          amount to a constitutional tort, unless the plaintiff is deprived          of  his  right  to  liberty  by  wrongful  incarceration),  cert.                                                                      _____          granted, 113 S. Ct. 1382 (1993)).          _______                    Mr. Senra  clearly has  not stated  a  claim under  the          substantive   due  process  branch   of  the      1983  malicious          prosecution analysis.   Mr. Senra did not allege  that the police          officers  maliciously  prosecuted  him  for  racial or  political                                         -13-          reasons or to  deprive him of equal  protection of the law.   Nor          has Mr.  Senra stated a claim  for a violation of  his procedural          due  process  rights   because  he  failed  to   demonstrate  the          inadequacy of the state law malicious prosecution remedy.                      We turn  then to  whether the  district court  properly          directed the verdict in favor  of defendant officers on the state          law malicious  prosecution  claim.    To  establish  a  claim  of          malicious  prosecution under Rhode  Island law, a  plaintiff must          prove that (1) defendants initiated a criminal proceeding against          him; (2) with  malice; (3) and without probable  cause; which (4)          terminated in  plaintiff's favor.   Solitro v. Moffatt,  523 A.2d                                              _______    _______          858, 861-62 (R.I. 1987); Nagy v. McBurney, 120 R.I. 925, 929, 392                                   ____    ________          A.2d 365, 367 (1978).  In the district court, the success  of Mr.          Senra's state law  action hinged on  the proof he offered  on the          "initiation"  element.6  The  district court conceded  that Rhode          Island  case law  offered little  guidance  with respect  to what          actions constitute initiation in cases involving police officers.          Nonetheless, the district court indicated early in the proceeding          that plaintiffs' case would benefit from evidence concerning what                                        ____________________          6  In order to survive a motion for judgment as a matter of  law,          plaintiff must offer proof sufficient to  state a claim as to all          elements of  the cause of  action.  It  is not disputed  that the          alleged malicious  prosecution terminated  in Mr. Senra's  favor.          Actual  proof of malice  is not necessary  as it may  be inferred          from the  absence of probable cause to prosecute.  Nagy, 392 A.2d                                                             ____          at 367; De Fusco v. Brophy, 112 R.I.  461, 463 n.1, 311 A.2d 286,                  ________    ______          287  n.1 (1973).   Finally,  it is  clear that  the existence  of          probable cause to arrest, which  in this case is coterminous with          probable  cause to prosecute, was sufficiently in doubt since the          district court  allowed the claim  of false arrest  to go to  the          jury.   As  such, the  critical  inquiry, as  the district  court          realized, is whether defendants initiated the prosecution.                                         -14-          information  the  officers  transmitted  to  the  state  Attorney          General's office, what other  information the prosecuting officer          possessed,  and who  finally  made  the  decision  to  prosecute.          (Trial  Transcript at  21, Nov.  2,  1992).   The district  judge          ultimately  directed the verdict in favor of defendants, however,          because he believed "[t]here  [was] no evidence that  [the police          officers] initiated or  actively participated in the  bringing of          the  charges  by   the  Attorney  General's  Office   by  way  of          information."    (Trial   Transcript  at  34,  Nov.   3,  1992).7          According to the court, defendants were entitled to a judgment as          a  matter of  law  because (1)  the state  prosecuting attorney's          discretionary decision  to prosecute  constituted an  intervening          cause that insulated  defendant officers from liability,  and (2)          Mr. Senra failed to provide sufficient evidence about the process          by which criminal  charges are brought to survive  the motion for          directed verdict.                    We  agree  with the  district  court  that the  law  of          initiation in Rhode Island  is not clear.   We draw, however,  on          the  law  concerning  liability  for  private   persons  bringing          information before the police.   The chain of causation is broken          if the  filing of the  information by  the attorney at  the state          Attorney  General's  office  was free  of  pressure  or influence          exerted by the police  officers or knowing misstatements made  by          the officers  to the Attorney  General's office.  See  Dellums v.                                                            ___  _______                                        ____________________          7   The charges in  this case were  brought by information.   See                                                                        ___          Rhode Island Superior Court Rules of Criminal Procedure 7.                                         -15-          Powell,  566  F.2d  167, 192-193  (D.C.  Cir.  1977); Restatement          ______          (Second) of Torts    653 cmt. g; W. Page Keeton, Prosser & Keeton                                                           ________________          on The Law of  Torts   119, at 872-73 & nn.33-36  (5th ed. 1984).          ____________________          At  the  time  the  district  court  directed   the  verdict  for          defendants, it  remained possible  that the  police officers  had          lied about the events in question and had communicated that false          information to state prosecutors.  If the evidence upon which the          prosecutors based  the filing of  the information was  false, the          state prosecutors could not have exercised their discretion.   As          a result, the actions of the prosecutors would not have insulated          the  police officers from suit for  malicious prosecution.  Given          this  possibility,  the   district  court  therefore   improperly          directed the verdict for defendant officers at that time.                    In light of the  jury's verdict, however, the error  is          harmless.  The jury found in favor  of the police officers on the          excessive  force claim, finding that they reasonably responded to          Mr. Senra's behavior  the night that Mr. Senra  was arrested.  It          follows then that officers possessed sufficient information about          Mr.  Senra  to  charge  him with  assaulting  a  police  officer,          disorderly conduct,  and leaving the  scene of an accident.   The          jury's   verdict  therefore  precludes  a  finding  of  malicious          prosecution.                    The judgment of the district court is affirmed.                                                          ________                                         -16-
