
USCA1 Opinion

	




                            United States Court of Appeals                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 95-2303                                    MICHAEL GILL,                                Plaintiff, Appellant,                                          v.                              SCOT THOMAS, ETC., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                              FOR THE DISTRICT OF MAINE                     [Hon. David M. Cohen, U.S. Magistrate Judge]                                           _____________________                                 ____________________                                        Before                                Selya, Stahl and Lynch,                                   Circuit Judges.                                   ______________                                 ____________________            Cynthia A. Dill for appellant.            _______________            Edward R.  Benjamin  with whom  Anne  Skopp  and Preti,  Flaherty,            ___________________             ___________      _________________        Beliveau & Pachios were on brief for appellees.        __________________                                 ____________________                                     May 15, 1996                                 ____________________                      STAHL, Circuit Judge.   Plaintiff-appellant Michael                      STAHL, Circuit Judge.                             _____________            Gill sought redress under 42 U.S.C.   1983 in Maine's federal            district  court  for  a   police  officer's  alleged  use  of            excessive force in arresting  him following a routine traffic            stop.   After a two-day trial before a magistrate judge,1 the            jury returned a verdict for the police officer.  Gill appeals            the  magistrate judge's  denial of  his in  limine  motion to                                                    __  ______            preclude  evidence  of  his  prior  misdemeanor  convictions.            Because we find that Gill  waived his right to appeal the  in                                                                       __            limine ruling, we affirm.              ______                                          I.                                          I.                                          __                                      Background                                      Background                                      __________            A.  The Incident            ________________                      On the night of November 27, 1993, Officer Scot            Thomas of the South Berwick, Maine, Police Department stopped            Michael Gill for driving with defective taillights.  After            obtaining Gill's driver's license and registration, Officer            Thomas contacted the police dispatcher from his cruiser and            learned that Gill's privilege to operate a motor vehicle in            Maine had been suspended.  Back at Gill's truck, Officer            Thomas notified Gill of the suspension and the resulting need            to arrest him.                                              ____________________            1.  Under  Fed. R. Civ. P.  73, the parties  consented to the            magistrate judge, rather than the district judge,  conducting            the jury trial.                                         -2-                                          2                      Gill and Officer Thomas both agree that the            following sequence of events occurred thereafter:  (1) Gill            claimed that the suspension was a mistake, (2) Gill initially            refused Thomas's request to place his hands on the cruiser,            (3) Thomas's police dog bit Gill's arm, (4) Gill threatened            to sue Thomas, and (5) Thomas sprayed Gill's face with mace.             Predictably, however, Gill's and Thomas's stories diverge on            the question of their respective roles in the foregoing            events.  While Gill maintains that he offered no physical            resistance to Thomas and therefore the dog's attack and the            mace were an excessive use of force, Officer Thomas contends            that Gill physically resisted his attempts to effect the            arrest and therefore the amount of force was justified.            B.  The In Limine Motion and Ruling            ___________________________________                      Cognizant that his credibility would be the            decisive factor at the impending jury trial, Gill filed a            motion in limine seeking to preclude Thomas from inquiring                   __ ______            about five of Gill's seven misdemeanor convictions.2  In            particular, Gill sought to exclude evidence of his two            convictions for simple assault as well as his convictions for            resisting arrest, criminal mischief, and willful concealment.             Gill argued that because none of the five misdemeanors            involved dishonesty or false statement or was punishable "by                                            ____________________            2.  Gill  conceded that  his prior  convictions for  filing a            false  report and  theft by  deception were  admissible under            Fed. R. Evid. 609(a)(2).                                         -3-                                          3            death or imprisonment in excess of one year," they could not            be admitted under Rule 609 of the Federal Rules of Evidence.             Thomas responded that while four3 of the five misdemeanors            were outside the parameters of Rule 609, each was nonetheless            admissible to impeach Gill's answer to interrogatory #7.                      Interrogatory #7 asked:                      If you have been convicted of a crime                      involving potential punishment of one                                                        ___                      year or more or involving dishonesty or                      ____________                      moral turpitude, please set forth the                      nature of the crime, the date of each                      conviction, the name of each court where                      the conviction took place, and a full                      description of any and all sentences                      imposed.            (Emphasis added).  Gill replied "No."  Thomas argued that            Gill's failure to list the five misdemeanors (each of which            involved terms of imprisonment of "up to one year") as well            as the convictions for filing a false report and theft by            deception (both of which patently involved dishonesty)            constituted a false statement under oath, and Thomas should            be permitted to impeach Gill with this falsity at trial.                      After a hearing, the magistrate judge denied the in                                                                       __            limine motion and stated that he would permit Thomas to            ______            question Gill about his convictions for the limited purpose            of illustrating the inconsistency between Gill's                                            ____________________            3.  Thomas   argued  that   Gill's  conviction   for  willful            concealment  may have involved  dishonesty or false statement            and requested  that the magistrate judge  question Gill about            the facts surrounding his commission of this offense in order            to facilitate that determination.                                         -4-                                          4            interrogatory answer and "the apparent fact that he has been            convicted for a number of crimes which would have required            him to answer that interrogatory differently."  The            magistrate judge also indicated that he would give a limiting            instruction to the jury if and when such testimony was            elicited.                  C.  Presentation of the Misdemeanor Evidence at Trial            _____________________________________________________                      After opening arguments, Gill took the stand as his            own first witness.  In response to his attorney's questions,            Gill described the events surrounding his arrest and then            proceeded to enumerate each of his criminal convictions and            describe the circumstances surrounding them (to the extent he            could remember).  For instance, after testifying that he had            been convicted of simple assault on June 10, 1985, Gill            recalled the circumstances of that crime by stating, "I think            that was involved again with the DWI."  Gill was alluding to            his previous testimony about a driving-while-intoxicated            incident following which he was convicted for resisting            arrest.                      Gill then addressed his answer to interrogatory #7.             Admitting that his answer was inaccurate, Gill explained that            he had mistakenly read the interrogatory to be asking about            felonies and believed that his convictions for filing a false            report and theft by deception did not involve dishonesty.             Finally, Gill squarely addressed his credibility in light of                                         -5-                                          5            his checkered criminal past and erroneous answer to            interrogatory #7, testifying as follows:                      Q:  Mr. Gill, in light of this long                      criminal history that we've just gone                      through, including some crimes which                      involved some kind of dishonesty, how do                      you expect the jury to believe the story                      you've just told us about what happened                      with Officer Thomas?                      A:  . . . I quit drinking in 1989 with                      the help of a friend and have been trying                      since then to turn my life around. . . .                      Things that I can change about myself and                      I have been changing, and I have since                      1989 is I'm not a liar, and I'm not a                      thief.                                             On cross-examination, Officer Thomas also            questioned Gill about his answer to interrogatory #7.  For            each of Gill's convictions, Thomas asked whether Gill had            listed that particular conviction in his answer to            interrogatory #7, to which Gill repeatedly answered that he            had not.  In the course of inquiring about Gill's January            1983 conviction for resisting arrest and his June 10, 1985,            conviction for assault, Thomas highlighted what had already            been brought out on direct, i.e., that both convictions                                        ____            involved a police officer who was trying to place Gill in            custody.                      Having offered the evidence of his criminal record            himself, Gill neither requested a jury instruction limiting            the purpose for which this evidence could be used nor            objected to Thomas's questions regarding these convictions on                                         -6-                                          6            cross-examination.  The jury subsequently returned a verdict            for Officer Thomas, and this appeal ensued.                                         II.                                         II.                                         ___                                       Analysis                                       Analysis                                       ________                      Gill appeals the magistrate judge's denial of his            in limine motion, arguing that the five misdemeanor            __ ______            convictions were inadmissible under Rule 609 of the Federal            Rules of Evidence.  Gill maintains that but for the            magistrate judge having indicated that he would permit Thomas            to raise them on cross-examination, Gill never would have            revealed his misdemeanor convictions on direct examination.             Our case law instructs us, however, that Gill chose to            introduce his convictions on direct examination at his peril            and cannot be heard to complain on appeal of the admission of            such evidence.                      In Fusco v. General Motors Corp., 11 F.3d 259, 262                         _____    ____________________            (1st Cir. 1993), we held that when a party's in limine motion                                                         __ ______            to exclude evidence is denied, she cannot rely on her            objection to the in limine ruling to preserve the right to                             __ ______            appeal the admission of the contested evidence.  She must            renew her objection at trial "when the evidence is actually            offered."4  Id.; see also Adams v. Fuqua Indus., Inc., 820                        ___  ___ ____ _____    __________________                                            ____________________            4.  Fusco also held, however, that where the in limine motion                _____                                    __ ______            to  exclude is granted and  the proponent of  the evidence is            unconditionally  precluded from  presenting  the evidence  at            trial, the proponent  has preserved the issue for  appeal and            need not  renew the offer at trial.  11  F.3d at 262-63.  See                                                                      ___                                         -7-                                          7            F.2d 271, 274 (8th Cir. 1987) ("[M]otion in limine does not                                                     __ ______            preserve error [in subsequent admission of evidence] for            appellate review."); Petty v. Ideco, Div. of Dresser Indus.,                                 _____    ______________________________            Inc., 761 F.2d 1146, 1150 (5th Cir. 1985) ("[A] party whose            ____            motion in limine is overruled must renew his objection when                   __ ______            the error he sought to prevent is about to occur at trial.").                      We require this renewal in order to give the            district court an opportunity to "reconsider the ruling with            the concrete evidence presented in the actual context of the            trial."  Fusco, 11 F.3d at 262; see also United States v.                     _____                  ___ ____ _____________            Griffin, 818 F.2d 97, 105 (1st Cir.) (holding that "to raise            _______            and preserve for review the claim of [evidentiary error], a            party must obtain the order admitting or excluding the            controversial evidence in the actual setting of the trial"),            cert. denied, 484 U.S. 844 (1987).  Without such a            _____ ______            requirement, the reviewing court would be forced to speculate            whether the party who proposed to offer the evidence would            have done so at trial and whether, if she had offered the            evidence, the district court would have changed its in limine                                                                __ ______            ruling "in the give-and-take of live testimony."  United                                                              ______            States v. Nivica, 887 F.2d 1110, 1115-16 (1st Cir. 1989),            ______    ______                                            ____________________            also United States v.  Holmquist, 36 F.3d 154, 166  n.12 (1st            ____ _____________     _________            Cir. 1994)  (discussing situations in which  the proponent of            evidence  excluded  by a  pretrial in  limine ruling  will be                                               __  ______            deemed  to  have  preserved  the  issue  for  appeal  without            proffering  the excluded  evidence  during the  trial), cert.                                                                    _____            denied, 115 S. Ct. 1797 (1995).            ______                                         -8-                                          8            cert. denied, 494 U.S. 1005 (1990).  Thus, Gill cannot rely            _____ ______            solely on his in limine objection to preserve the evidentiary                          __ ______            issue for appeal.                         At trial, rather than waiting for Thomas to            introduce the misdemeanors, objecting, and allowing the            magistrate judge to reconsider his in limine ruling, Gill                                               __ ______            opted to introduce the misdemeanors preemptively to "remove            the sting" from Thomas's anticipated impeachment.  While this            may have been a wise tactical decision, as a consequence,            Gill "opened the door" to Thomas's cross-examination on the            misdemeanors and thereby eliminated any potential evidentiary            error.  Moreover, having offered the misdemeanors himself and            having received the strategic benefit therefrom, Gill cannot            now be heard to complain that his own offer of such evidence            was reversible error.  See United States v. Williams, 939                                   ___ _____________    ________            F.2d 721, 723-25 (9th Cir. 1991) (holding that by introducing            evidence of conviction himself defendant waived right to            appeal in limine ruling that evidence of prior conviction was                   __ ______            admissible for impeachment); United States v. Bryan, 534 F.2d                                         _____________    _____            205, 206 (9th Cir. 1976) (refusing to allow defendant to            complain about the admission of evidence about a prior            conviction when defendant introduced the offending fact in            the first instance); Shorter v. United States, 412 F.2d 428,                                 _______    _____________            431 (9th Cir.) (same), cert. denied, 396 U.S. 970 (1969).                                   _____ ______                                         -9-                                          9                      To preserve his in limine objection to the                                      __ ______            admissibility of the misdemeanor convictions for this appeal,            Gill should have refrained from offering the evidence            himself, waited to see if Thomas introduced them on cross-            examination, and if so, objected then.  In sum, Gill's own            action of offering the misdemeanor evidence himself rendered            it admissible.  Or stated differently, by offering the            misdemeanor evidence himself, Gill waived his opportunity to            object and thus did not preserve the issue for appeal.                       Affirmed.                      Affirmed                      ________                                         -10-                                          10
