     14-1826
     Davis v. Velez



 1                                UNITED STATES COURT OF APPEALS

 2                                      FOR THE SECOND CIRCUIT

 3                                                  ------

 4                                            August Term, 2014

 5   (Argued: April 22, 2015                                                  Decided: August 4, 2015)

 6                                           Docket No. 14-1826

 7   _________________________________________________________

 8   LEROY DAVIS,

 9                                                  Plaintiff-Appellee,

10                                         - v. -

11   JAVIER VELEZ, JAMES LUKESON, and GARY CALHOUN,

12                                       Defendants-Appellants.*
13   _________________________________________________________

14   Before: KEARSE, PARKER, and WESLEY, Circuit Judges.

15                    Appeal from a judgment entered in the United States District Court for the Eastern

16   District of New York following a jury trial before Jack B. Weinstein, Judge, awarding plaintiff, who

17   had previously been acquitted of drug and firearm charges, a total of $560,000 in compensatory and

18   punitive damages against defendant police officers pursuant to 42 U.S.C. § 1983 for false arrest,

19   malicious prosecution, and denial of a fair trial. On appeal, defendants contend principally that they



     *      The Clerk of Court is directed to amend the official caption to conform with the
            above.
 1   are entitled to a new trial because of the admission of hearsay evidence that another person said he had

 2   framed plaintiff for those crimes, and because of improprieties by the jury in its deliberations. See 15

 3   F.Supp.3d 234 (2014).

 4                  Affirmed.


 5                          MICHAEL LUMER, New York, New York (James C. Neville, Lumer
 6                               & Neville, New York, New York, on the brief), for Plaintiff-
 7                               Appellee.

 8                          TAHIRIH M. SADRIEH, Assistant Corporation Counsel, New York,
 9                               New York (Zachary W. Carter, Corporation Counsel of the City
10                               of New York, New York, New York, on the brief), for
11                               Defendants-Appellants.




12   KEARSE, Circuit Judge:

13                  Defendants Javier Velez and James Lukeson, officers in the New York City Police

14   Department ("NYPD"), and defendant Gary Calhoun, an NYPD sergeant, appeal from a judgment

15   entered in the United States District Court for the Eastern District of New York following a jury trial

16   before Jack B. Weinstein, Judge, ordering Velez and Lukeson each to pay plaintiff Leroy Davis

17   $180,000 in compensatory and punitive damages, and ordering Calhoun to pay Davis $200,000 in

18   compensatory and punitive damages, on Davis's claims brought under 42 U.S.C. § 1983 for false

19   arrest, malicious prosecution, and denial of a fair trial. Davis had been arrested by defendants, leading

20   to a federal prosecution on charges of possession of narcotics and a firearm, but he was acquitted on

21   all counts. On appeal in the present case, defendants contend principally that they are entitled to a new

22   trial (1) because of various evidentiary rulings, including the admission of hearsay evidence as to



                                                        2
 1   statements by a person who said he had planted the drugs and firearm that defendants claimed to have

 2   found in Davis's possession, and (2) because of improprieties in the jury deliberations. Lukeson and

 3   Calhoun also contend that they were entitled to judgment as a matter of law dismissing Davis's claims

 4   against them for malicious prosecution. For the reasons that follow, we conclude that defendants'

 5   contentions provide no basis for reversal.



 6                                             I. BACKGROUND



 7                    The present civil action has its origin in defendants' arrest of Leroy Davis ("Leroy" or

 8   "Davis") in 2009. The differing versions of that event, and Davis's evidence as to how the arrest came

 9   to pass, are described in the district court's opinion denying defendants' motions for a new trial, see

10   Davis v. Velez, 15 F.Supp.3d 234 (E.D.N.Y. 2014) ("D.Ct. Op."), familiarity with which is assumed.

11                            Defendants arrested plaintiff [Davis] on October 2, 2009. They
12                    claimed that one of them saw plaintiff furtively drop a plastic bag on a public
13                    sidewalk, heard a metallic clink that sounded like a gun, and found a gun and
14                    crack cocaine inside the bag. Based on evidence supplied by defendants,
15                    plaintiff was indicted by a federal grand jury. . . . After spending thirteen
16                    months in jail awaiting trial, plaintiff was tried on federal gun and drug
17                    charges. He was acquitted of all charges.

18   D.Ct. Op., 15 F.Supp.3d at 237. After his acquittal, Davis commenced the present action pursuant to

19   42 U.S.C. § 1983 for, to the extent pertinent to this appeal, false arrest, malicious prosecution, and

20   denial of a fair trial.



21   A. Defendants' Version of the Arrest

22                    Defendants testified that in the early hours of October 2, 2009, they were in an


                                                         3
 1   unmarked car, dressed in plainclothes, on an overnight patrol in Brooklyn, New York. (See Trial

 2   Transcript ("Tr.") 290-92, 397, 410-11.) As they turned a corner and drove slowly along the 600 block

 3   of Chauncey Street (or "Chauncey"), Velez, sitting in the back seat of the car, saw a man--Davis--

 4   walking down the block, carrying a black plastic bag. Velez testified that Davis glanced back toward

 5   the officers and then dropped the bag, and Velez heard what sounded like the metallic sound that a

 6   firearm makes when it hits the ground. "Without saying anything to his colleagues, Officer Velez

 7   jumped out of the slowly moving car and asked the pedestrian what was in the bag." D.Ct. Op., 15

 8   F.Supp.3d at 239. When Davis responded "garbage" (Tr. 298), Velez looked in the bag and saw a

 9   bottle of soda, a box of chicken and, beneath the box, a firearm and ziplock bags of crack cocaine.

10                  Velez and Lukeson handcuffed Davis and patted him down. They testified that he had

11   no identification. Lukeson testified that when Davis indicated that he lived in 642 Chauncey, Lukeson

12   took Davis's house keys from his pocket or belt and used them to enter 642 Chauncey in order to

13   determine whether someone could identify Davis or produce identification for him. He knocked on

14   interior doors on the ground floor, got no answer, and left the building. He testified that he was in the

15   house for at most 25-30 seconds. Calhoun testified that Lukeson had gone into 642 Chauncey and had

16   been inside for 30-35 seconds.

17                  Davis was thereafter promptly taken to the precinct. Lukeson did not see the contents

18   of the black plastic bag until he was at the precinct. Neither Calhoun nor Lukeson had seen Davis

19   holding the bag. They testified that they first saw it when it was on the ground or when Velez was

20   holding it. Neither Lukeson nor Calhoun was asked at trial whether they had heard a metallic clink

21   or sound. See D.Ct. Op., 15 F.Supp.3d at 239-40.




                                                        4
 1   B. Davis's Version of the Arrest

 2                  Davis testified that on the night in question he had neither been walking down

 3   Chauncey Street nor carrying a bag. Rather, he and a friend had just come out of 642 Chauncey,

 4   where Davis lived; and Davis was about to go next door to 640 Chauncey to see his then-girlfriend

 5   who was living there with her grandmother. Davis had just locked the gate to 642 Chauncey when

 6   he was approached by Lukeson and Velez, who ordered him to put his hands on the gate and told his

 7   friend to leave.

 8                  Davis testified that he had with him not only the keys to 642 Chauncey but also his

 9   Social Security card and a benefit card as identification. Either Velez or Lukeson took the keys from

10   Davis's pocket. Some 10 minutes later, Davis heard that officer say "put handcuffs on him."

11   (Tr. 455.) He was then taken to the police station.

12                  Two other witnesses called by Davis testified to their observations of the scene at 642

13   Chauncey on October 2, 2009, around 1:00 a.m., just after Davis's arrest. Shakima Jones (or

14   "Shakima" or "Kima"), the sister of Layshonna Jones who was Davis's then-girlfriend, testified that

15   she was returning from a party to her grandmother's house at 640 Chauncey and saw Davis and his

16   friend sitting on the ground in handcuffs. She saw two police officers with them--recognizing them

17   as police officers because they had guns and flashlights--and another officer standing on the stoop of

18   642 Chauncey smoking a cigarette. Among the officers she saw were Velez and Lukeson. (See

19   Tr. 166-67.) Shakima and her companion Rasheem Kelly (or "Rasheem"), who was a grandson of

20   Mary Jackson, the owner of 642 Chauncey, then remained across the street from 640 and 642

21   Chauncey and watched. Shakima testified that for some 20-30 minutes there appeared to be a number

22   of officers moving around with flashlights inside 642 Chauncey.


                                                       5
 1                  After the officers had left, Rasheem went into 642 Chauncey to check the house. He

 2   told Shakima that mattresses, drawers, and a stove had been moved around. (See id. at 216-17; see

 3   also id. at 168 (the "next day we went to the house and . . . help[ed] Mrs. Jackson put a lot of stuff

 4   back together").)

 5                  Vincent Holmes, who lived at 644 Chauncey, testified that he was arriving home from

 6   work and saw Davis and another man being detained by police just outside the gate to Holmes's house.

 7   After speaking briefly with one of the officers, Holmes stood on his front steps for some five minutes

 8   and watched. Holmes saw another officer exit 642 Chauncey carrying a box, show the box to an

 9   officer who was smoking a cigarette, and then go back into 642 Chauncey.

10                  Velez testified that he did not remember seeing Shakima Jones on the street that night,

11   or seeing anyone go in and out of 642 Chauncey, or seeing an officer bringing out a box. (See

12   Tr. 331-32, 355; id. at 332 ("I would not be able to tell you whether it happened or not, I don't

13   remember ever seeing it.").)



14   C. The Role of Terrel Norman

15                  Davis denied that he had possessed crack or a gun that night and that he had ever had

16   crack or a gun in 642 Chauncey. His theory was that he had been framed by Terrel Norman, a relative

17   of Mary Jackson, the woman who owned 642 Chauncey. Davis had moved to 642 Chauncey in April

18   2009, having become a good friend of Jackson's son, whom Davis regarded as a father or an uncle.

19   Davis and Jackson developed a good relationship; he helped her with gardening, baking, and

20   maintenance, and called her "grandmother" (Tr. 437; see also id. at 132 (Shakima heard Davis refer

21   to Jackson as "Grandma")). Jackson bought Davis clothes and furniture for his room and gave him


                                                       6
 1   money.

 2                  Norman, a grandson or nephew of Jackson--generally referred to as her grandson--who

 3   sometimes stayed at 642 Chauncey, became jealous of Davis, recognizing that Davis was more

 4   welcome there than he was (see, e.g., id. at 144 (Shakima Jones observed many occasions when

 5   Jackson was "upset with Terrel Norman coming into her house"); see also id. at 177 (Shakima

 6   observed that Davis had keys to Jackson's house but never observed Norman having such keys)).

 7   Pursuant to pretrial rulings (see Part II.A. below), Davis was allowed to present evidence at trial as

 8   to statements by Norman (see Part I.D. below) that supported Davis's theory that Norman had planted

 9   the gun and crack in 642 Chauncey in order to frame Davis (the Norman "Confession").

10                  Shakima Jones testified that on one occasion in May 2009 when she was in the front

11   yard of her grandmother's house at 640 Chauncey, she heard screaming and yelling coming from 642

12   Chauncey. Norman came storming out, saying, "this is what you want to do to me, grandma"; "[t]his

13   is how you are going to treat me. I am your flesh and blood. You are going to let a stranger live here

14   before you let us stay in your house. This is wrong. This is wrong. I can't deal with it." (Tr. 139-40.)

15                  Clara Jones (or "Clara"), the mother of Shakima and Layshonna Jones, testified that

16   sometime before Davis's October 2009 arrest, perhaps in the summer, when Clara was in front of her

17   mother's house at 640 Chauncey, Davis and Norman emerged from 642 Chauncey in the midst of an

18   argument in which each had grabbed the other by the shirt. Norman was saying to Davis, "You getting

19   on my nerves, you make me sick. That's all right. I'm going to get you. I'm going to get you." (Id.

20   at 108.)

21                  Davis testified that he witnessed quarrels between Norman and Jackson, in which

22   Norman asked Jackson why she treated Davis better than she did Norman (see, e.g., Tr. 441 (Norman


                                                        7
 1   asked Jackson, "Why you always giving Leroy money and don't give me no money?")), and Jackson

 2   asked Norman, "Why you cannot be like Leroy?" (id. at 442). On October 1, 2009, when one of these

 3   quarrels between Norman and Jackson became physical and Norman lunged toward his grandmother,

 4   Davis grabbed Norman and the two tussled, causing a gun to fall out of Norman's pants. Davis picked

 5   up the gun and gave it to Jackson; Jackson gave the gun back to Norman and told him to get out of

 6   her house. Norman said to Davis, "I'm going to get you. I'm going to get you." (Id. at 443.)

 7                  Hours later, Davis was arrested.



 8   D. The Norman "Confession"

 9                  Shakima Jones testified that she had known Norman all of his life, as their families

10   were neighbors, and that they frequently socialized. She had conversations with Norman "[a]ll the

11   time" "through the years." (Tr. 171.) On several occasions she had observed Norman possessing

12   guns, and she had observed him possessing various controlled substances. Some two weeks after

13   Davis moved into 642 Chauncey, Shakima was in the front yard of that house with Norman and his

14   cousin Rasheem when Norman, saying "I got some new toys," showed them four guns (id. at 136).

15   On a different occasion, Shakima witnessed Norman pull out a gun and point it at Rasheem during an

16   argument. (See id. at 150; see also id. at 439-40 (Davis observed Norman pointing a gun at

17   Rasheem).) On another occasion, Norman got Shakima to let him leave two duffel bags in her house

18   at 650 Chauncey; Norman later took a gun, a package of crack cocaine, and a bag of pills he said were

19   ecstasy out of one of those bags, and Shakima saw another gun remaining in the bag. (See id.

20   at 138-43.) And on yet another occasion, when Jackson was away and Davis would not unlock the

21   gate and door to let him in, Shakima observed Norman enter 642 Chauncey through a window; and,


                                                       8
 1   after hearing shouting coming from the house, she saw Norman run down the block and fire several

 2   shots into the air. (See id. at 144-49, 543; see also id. at 523-25 (Davis describing that incident).)

 3                  Shakima testified that in the summer of 2013--although she admitted she might be

 4   mistaken about the timing (see Tr. 193)--Norman had come to Brooklyn from somewhere in the South

 5   where he was then living, and he and his brother called her to come over to their aunt's house for a

 6   visit. During that visit, Norman brought up the subject of Davis and told Shakima that he, Norman,

 7   had put the gun and the bags of crack for which Davis was arrested on October 2, 2009, in 642

 8   Chauncey. Norman said he had done it in order to "kill two birds with one stone," i.e., to get rid of

 9   both "Leroy Davis and that gun." (Id. at 174, 175.) Norman said he wanted Davis out of his

10   grandmother's house (see id. at 176-77, 180), and he said "I really, really needed to get rid of that gun

11   anyway, Kima, you don't understand" (id. at 176).

12                  Shakima testified that Norman said that on that night in October 2009, after putting the

13   gun and the crack in 642 Chauncey (see id.), he had called policemen, to whom he referred as the

14   "Three Amigos"--mentioning the names "Velez" and "Calhoun" and calling them "my boys" (id.

15   at 178). Norman told Shakima that he had put the gun and the drugs in a crawl space toward the roof.

16   (See id. at 178-79.) Norman said that "when he called" the Three Amigos, "he called Velez" but got

17   "no answer. So he called Calhoun" and gave Calhoun "the information." (Id. at 179.) Norman told

18   her that Calhoun had responded, "we're on our way." (Id. at 180.)

19                  Defendants denied ever having heard of Norman and denied receiving a tip related to

20   Davis or 642 Chauncey. (See Tr. 370, 405, 415-16.)




                                                        9
 1   E. The Verdicts

 2                  The jury returned verdicts in favor of Davis against each of the defendants on each of

 3   three claims: false arrest, malicious prosecution, and denial of a fair trial by providing false

 4   information to prosecutors. It awarded compensatory damages against each defendant in the amount

 5   of $54,000; it awarded punitive damages against Velez and Lukeson in the amount of $126,000 each

 6   and against Calhoun in the amount of $146,000.

 7                  Defendants made several motions for a new trial. They argued principally that they

 8   were unfairly prejudiced by the admission of the hearsay evidence as to the Norman Confession and

 9   by other evidentiary rulings (see Parts II.A. and II.C.1. below) and by events during the jury's

10   deliberations, most of which came to light after the end of the trial (see Part II.B. below). The motions

11   were denied, and judgment was entered reflecting the jury's verdicts.



12                                             II. DISCUSSION



13                  On appeal, defendants contend principally that the trial court erred (1) in admitting

14   evidence of the Norman Confession and excluding offsetting evidence, and (2) in denying a new trial

15   on the basis of information received as to improprieties in the jury deliberations. For the reasons that

16   follow, we see no basis for reversal.



17   A. Admissibility of the Norman Confession Under Rule 804(b)(3)

18                  Hearsay, a statement by a declarant "not ma[d]e while testifying at the current trial or

19   hearing" and "offer[ed] in evidence to prove the truth of the matter asserted in the statement," Fed. R.


                                                        10
 1   Evid. 801(c), is generally not admissible unless permitted by an exception provided in the Federal

 2   Rules of Evidence ("Rules"), see Fed. R. Evid. 802. The Rules provide exceptions for, inter alia, a

 3   hearsay statement that was against the declarant's penal interest if the declarant is unavailable as a

 4   witness, see Fed. R. Evid. 804(b)(3).

 5                  The exception for a statement against a declarant's penal interest applies to a statement

 6   that

 7                           (A) a reasonable person in the declarant's position would have made
 8                  only if the person believed it to be true because, when made, it . . . had so great
 9                  a tendency . . . to expose the declarant to civil or criminal liability; and

10                         (B) is supported by corroborating circumstances that clearly indicate its
11                  trustworthiness, if it is offered in a criminal case as one that tends to expose the
12                  declarant to criminal liability.

13   Fed. R. Evid. 804(b)(3) (emphasis added). The Rule excepting such statements from exclusion on the

14   ground of hearsay "is founded on the commonsense notion that reasonable people, even reasonable

15   people who are not especially honest, tend not to make self-inculpatory statements unless they believe

16   them to be true." Williamson v. United States, 512 U.S. 594, 599 (1994).

17                  To the extent pertinent here, a declarant is unavailable as a witness if he is "exempted

18   from testifying about the subject matter of the declarant's statement because the court rules that a

19   privilege applies," Fed. R. Evid. 804(a)(1). The trial court may permissibly find that a declarant is

20   unavailable on the ground of privilege "with or without the [declarant] being haled into court" to

21   invoke the privilege, where, for example, the court reasonably relies on "representations of the

22   attorneys for . . . incarcerated [declarants] concerning their clients' intentions to rely on their Fifth

23   Amendment privileges." United States v. Williams, 927 F.2d 95, 99 (2d Cir.), cert. denied, 502 U.S.

24   911 (1991); see id. ("The law does not require the doing of a futile act.").


                                                        11
 1                   The trial court's ultimate decisions as to the admission or exclusion of evidence are

 2   reviewed for abuse of discretion, see, e.g., United States v. Gupta, 747 F.3d 111, 128 (2d Cir. 2014),

 3   cert. denied, 135 S. Ct. 1841 (2015); Healey v. Chelsea Resources, Ltd., 947 F.2d 611, 619-20 (2d Cir.

 4   1991), and will not be disturbed unless they are "manifestly erroneous," SR International Business

 5   Insurance Co. v. World Trade Center Properties, LLC, 467 F.3d 107, 119 (2d Cir. 2006) (internal

 6   quotation marks omitted); In re Martin-Trigona, 760 F.2d 1334, 1344 (2d Cir. 1985) (internal

 7   quotation marks omitted). Further, even an erroneous ruling does not warrant a reversal "[u]nless

 8   justice requires otherwise." Fed. R. Civ. P. 61; see, e.g., Lore v. City of Syracuse, 670 F.3d 127, 155

 9   (2d Cir. 2012); Healey v. Chelsea Resources, Ltd., 947 F.2d at 620.

10                   On this appeal, defendants do not suggest that the Norman Confession to which

11   Shakima testified--indicating that Norman (who was a previously convicted felon) had possessed a

12   gun and had conspired with police officers to incriminate and cause the conviction of an innocent

13   man--did not consist of statements against his penal interest. Rather, defendants contend principally

14   that the district court erred (1) in ruling that Norman was unavailable as a witness, and (2) in admitting

15   the Confession without corroborating circumstances supporting its reliability. (See defendants' brief

16   on appeal at 25-33.) Neither contention has merit.



17           1. Unavailability

18                   Defendants argue principally that it was error for the district court to find that Norman

19   was unavailable on the basis of "post-trial" testimony by Norman's attorney that Norman had told her

20   he would rely on her advice and assert his Fifth Amendment privilege if called to testify (defendants'

21   brief on appeal at 26-27), and that the court erred in failing to make a determination as to whether


                                                        12
 1   Norman would invoke the privilege with respect to each question defendants wished to pose to him.

 2   These arguments do not do the record justice, for although there was such posttrial testimony by

 3   Norman's attorney, the district court's ruling that Norman was unavailable was made prior to trial,

 4   pursuant to a procedure to which defendants had declined to object.

 5                  The trial in the present case began on December 9, 2013. In November, defendants

 6   moved in limine for rulings that Davis would be precluded from offering into evidence, inter alia, "any

 7   evidence regarding Terrell [sic] Norman" (Memorandum of Law in Support of Defendants' Motions

 8   In Limine ("Defendants' In Limine Memorandum") at i; see id. at xiii-xv), including "STATEMENTS

 9   MADE BY TERRELL [sic] NORMAN" (id. at xv). At the ensuing hearing on the in limine motions,

10   the district court was informed that Norman--who had been listed as a potential trial witness by Davis

11   more than a year earlier--was incarcerated somewhere in the South; that neither side intended to seek

12   Norman's appearance as a witness at trial; and that Davis sought to have the Norman Confession

13   admitted as statements against penal interest. The court instructed Davis to provide evidence of

14   Norman's unavailability to testify. (See Hearing Transcript, November 25, 2013, at 16-25.)

15                  At a hearing on December 3, 2013, the court and the parties were informed by

16   telephone by Norman's criminal defense attorney Paris Branch-Ramadan that she would advise

17   Norman to invoke his Fifth Amendment privilege and to refuse to testify at the trial in the present

18   action. (See Hearing Transcript, December 3, 2013, at 12-13.) The court instructed Branch-Ramadan

19   that after she consulted with Norman, if he indicated that he would nonetheless testify, she should

20   "call me back and tell me that." (Id. at 13.) The court verified that Branch-Ramadan understood that

21   she need not call if Norman would follow her advice not to testify and that "the effect of [her] not

22   calling [the court]" would be to signify that Norman would refuse to testify (id. at 14). The parties


                                                       13
 1   were asked whether they objected to that course of action; each side stated that it had no objection.

 2   (See id.) Neither side suggested that information must be obtained question-by-question as to whether

 3   Norman would refuse to answer.

 4                  Norman's attorney did not call the court. Norman was thus found unavailable.

 5   Defendants having agreed to this process cannot complain of it on appeal.

 6                  On December 6, defendants moved for reargument of the unavailability determination

 7   on the ground that Norman, though incarcerated, had spoken with a defense investigator within the

 8   past week and was recorded as having denied planting a gun or drugs against Davis. The statements

 9   proffered by defendants, read into the record by the court on the morning trial was to begin, quoted

10   Norman in part as stating that he did not plant the gun or drugs or set up Davis: "I loved him"; "I

11   would never set him up"; "I had love for him, honestly." (Tr. 6.) The district court granted the motion

12   for reconsideration but adhered to its prior decision that Norman was unavailable. The court

13   permissibly concluded that Norman's making unsworn self-serving statements was not sufficient to

14   raise an inference that he would be willing to testify under oath.

15                  Defendants argue, relying principally on United States v. Zappola, 646 F.2d 48, 53-54

16   (2d Cir. 1981), that the district court could not properly determine that Norman was unavailable on

17   the basis of privilege without conducting an inquiry into whether Norman would invoke his privilege

18   with respect to each specific proposed question (see defendants' brief on appeal at 27-28), including

19   questions that defendants deemed "neutral" (id. at 28). Defendants' reliance on that case is misplaced,

20   for there the subpoenaed witness was a government informant; we ruled that the court's acceptance

21   of a "blanket assertion of the fifth amendment privilege in response to all questions asked of" that

22   witness was inappropriate because as to questions with respect to his activities as a government agent


                                                       14
 1   he would be protected from criminal prosecution, and his answers thus could not incriminate him, 646

 2   F.2d at 53. As to any relevant questions defendants would pose to Norman, however, defendants deny

 3   that he was an informant.

 4                  Further, as to the potential for neutral questions, defendants provided no list of such

 5   proposed questions for Norman, either in the December 3 conference call with his attorney or in their

 6   December 6 motion for reconsideration. They merely stated, in a letter dated the day before the

 7   Monday December 9 start of trial, that they "would proffer" such a list "upon the Court's request"

 8   (Letter from Duane Blackman to Judge Weinstein dated December 8, 2013 ("Defendants' December

 9   8 Letter"), at 4 n.1 (emphasis added)). And in that letter, the example of what defendants apparently

10   viewed as a neutral question--claiming that Norman could answer it "without exposing himself to

11   criminal liability" (id. at 4)--was whether Norman "was on the sidewalk down the block [from 642

12   Chauncey on the night of Davis's arrest] and watched the arrest" (id. (internal quotation marks

13   omitted)). This was hardly a neutral question since an affirmative answer would place Norman in

14   close proximity to the place where he allegedly admitted putting the gun and the drugs in order to

15   frame Davis. A witness is entitled to claim the privilege if his answer could "'furnish a link in the

16   chain of evidence'" incriminating him. United States v. Rodriguez, 706 F.2d 31, 36 (1983) (quoting

17   Hoffman v. United States, 341 U.S. 479, 486 (1951)).

18                  Defendants alternatively requested a ruling that, if the Norman Confession was

19   admitted, the newly obtained statements from Norman to the investigator too would be admissible.

20   Although defendants argue on appeal that the recording was admissible as impeachment evidence

21   under Fed. R. Evid. 806 ("When a hearsay statement . . . has been admitted in evidence, the declarant's

22   credibility may be attacked, and then supported, by any evidence that would be admissible for those


                                                       15
 1   purposes if the declarant had testified as a witness."), they did not cite or advert to this Rule in the

 2   district court. They asked that the investigator's recording be admitted "to even the field." (Tr. 10.)

 3   The court denied the request, finding the Confession and the new statements "entirely different" in

 4   character and reliability (id. at 11), see generally Fed. R. Evid. 807 (providing a residual exception for

 5   a hearsay statement that is not within Rule 803 or 804, if the statement, inter alia, "has equivalent

 6   circumstantial guarantees of trustworthiness"). The district court permissibly found that whereas the

 7   Confession bore indicia of reliability because it was contrary to Norman's penal interest, the proffered

 8   self-exculpatory statements bore no such indicia.

 9                   After these rulings, defense counsel suggested having a telephone conference to take

10   Norman's deposition. The district court stated, "Set it up. I'll be glad to hear him, if he wants to, under

11   oath, after the plaintiff puts in a case . . . saying that he admitted that he set the plaintiff up."

12   (Tr. 11-12; see also id. at 13-14 ("If anybody wants to make him available by bringing him . . . before

13   we have our summations and the evidence closed, I'll hear him, if he gets here. If you can arrange to

14   do it by two-way video, I'll take it . . . . But I'm not going to allow him to testify . . . if all he's going

15   to say is, I plead the Fifth Amendment.").)

16                   We see no indication in the record that defendants ever pursued any of these courses

17   to alter the ruling of unavailability or to procure Norman's testimony under oath. In light of the record

18   as a whole, we cannot conclude that either the procedures or the rulings as to unavailability provide

19   any basis for reversal.




                                                          16
 1          2. Corroboration

 2                  Defendants argue that even if Norman was properly ruled unavailable, the Confession

 3   should have been ruled inadmissible under Rule 804(b)(3) on the ground that it was not "supported

 4   by corroborating circumstances that clearly indicate[d] its trustworthiness," Fed. R. Evid.

 5   804(b)(3)(B). (See defendants' brief on appeal at 28-33.) Although that subpart of the Rule requires

 6   such special corroboration where the statement against penal interest "is offered in a criminal case,"

 7   Fed. R. Evid. 804(b)(3)(B) (emphasis added), defendants urge us to apply the requirement to this civil

 8   case, arguing that the concerns for "potential . . . fabrication" warrant such a requirement (defendants'

 9   brief on appeal at 31). This Court has not ruled on whether the special corroboration requirement is

10   applicable in civil cases. On this appeal, defendants argue that we should follow the decisions of the

11   Seventh Circuit in American Automotive Accessories, Inc. v. Fishman, 175 F.3d 534, 541 (7th Cir.

12   1999), and the Third Circuit in In re Flat Glass Antitrust Litigation, 385 F.3d 350, 373 (3d Cir. 2004),

13   cert. denied, 544 U.S. 948 (2005), which applied the corroboration requirement in civil cases. We

14   conclude that this argument is not properly preserved; but even if it were, and even if a special

15   corroboration requirement is appropriate for civil cases, there is no basis for reversal here.

16                  In arguing to the district court that the Norman Confession was not within the Rule

17   804(b)(3) exception, defendants argued only that the unavailability requirement was unsatisfied; they

18   did not argue that the court was required to find, in this civil case, special corroboration to indicate

19   that Norman's self-inculpatory statement was trustworthy. (See, e.g., Defendants' December 8 Letter

20   at 2 ("To the extent plaintiff argues that statements allegedly made by Norman to Shakima Jones

21   should be admitted as statements against penal interest pursuant to [Rule] 804(b)(3), these arguments

22   fail as Norman is not unavailable under either 804(a)(1) or 804(a)(5)."); id. at 2-4 (elaborating on the


                                                        17
 1   ways in which a witness may be unavailable).) Defendants also quoted a 2008 criminal case that

 2   quoted the "corroborating circumstances" requirement as it appeared in the version of Rule 804(b)(3)

 3   that was applicable in 2008. (Defendants' December 8 Letter at 2 (quoting United States v. Wexler,

 4   522 F.3d 194 (2d Cir. 2008)).) That pre-2010 version provided that "[a] statement tending to expose

 5   the declarant to criminal liability and offered to exculpate the accused is not admissible unless

 6   corroborating circumstances clearly indicate the trustworthiness of the statement." Fed. R. Evid.

 7   804(b)(3)(B) (1997). But Rule 804(b)(3)(B) had been amended in 2010. As amended in 2010, the

 8   Rule states that a statement against the declarant's penal interest is admissible within the exception if

 9   it "is supported by corroborating circumstances that clearly indicate its trustworthiness, if it is offered

10   in a criminal case as one that tends to expose the declarant to criminal liability." Fed. R. Evid.

11   804(b)(3)(B) (2010) (emphasis added).

12                   Defendants did not quote to the district court the 2010 version of Rule 804(b)(3)(B),

13   which introduced the "in a criminal case" language. Davis, in his memorandum to the court in support

14   of admission of the Norman Confession, argued that the "in a criminal case" language meant that the

15   corroborating circumstances requirement was not applicable to civil cases. (See Davis's Memorandum

16   of Law Concerning Plaintiff's Use of Statements by Terrel Norman at 4.) Defendants did not respond

17   to this contention. They presented no argument to the district court as to why special corroboration

18   should also be required in a civil case.

19                   The Seventh and Third Circuit cases mentioned above, which are relied on by

20   defendants on this appeal, had been decided in 1999 and 2004. They too, perforce, dealt with the pre-

21   2010 version of Rule 804(b)(3); but they at least applied the special corroboration requirement in civil

22   cases. Defendants did not cite those cases to the district court.


                                                         18
 1                   In sum, although the district court performed the usual balancing analysis under Fed.

 2   R. Evid. 403 in considering defendants' contention that the Confession should be excluded as unfairly

 3   prejudicial--and "[i]n the evidentiary context, fairness is closely related to the reliability and

 4   trustworthiness of the evidence," Felzcerek v. INS, 75 F.3d 112, 115 (2d Cir. 1996)--we see no

 5   indication that the district court was presented with the contention now advanced by defendants on

 6   appeal: that in order to apply the Rule 804(b)(3) exception to the Norman Confession, it was required

 7   to find special corroboration for the Confession's trustworthiness.

 8                   Where an alleged error is unpreserved, it will warrant a new trial only if it is "so serious

 9   and flagrant that it goes to the very integrity of the trial." Marcic v. Reinauer Transportation Cos., 397

10   F.3d 120, 124 (2d Cir. 2005) (internal quotation marks omitted); see 28 U.S.C. § 2111 (appellate court

11   is to ignore "errors . . . which do not affect the substantial rights of the parties"). We see no such error

12   here, for even if the special corroboration requirement is applicable in civil cases, there were in the

13   record sufficient indicia of trustworthiness of the Confession statements to which Shakima testified.

14                   First, though defendants complain that the court should not have allowed the

15   introduction of "other act" evidence with regard to Norman, such evidence was properly admitted to

16   show that Norman had access to guns, to drugs, to the house at 642 Chauncey, and to the police--all

17   of which bore on the reliability of the Confession. See generally United States v. Tubol, 191 F.3d 88,

18   95 (2d Cir. 1999) (evidence that defendant possessed a gun when he was arrested was admissible "to

19   show that he had the means to commit" armed robberies); United States v. Robinson, 560 F.2d 507,

20   512-13 (2d Cir. 1977) (en banc) (evidence that a defendant possessed a firearm "some weeks" after

21   the armed bank robbery with which he was charged was admissible to show he had the "opportunity"

22   to commit the crime), cert. denied, 435 U.S. 905 (1978).


                                                         19
 1                  Further, in deciding preliminary questions as to the admissibility of evidence, the trial

 2   court may consider evidence, other than that subject to a privilege, that itself would not necessarily

 3   be admissible at trial. See Fed. R. Evid. 104(a). The record here included not only the testimony

 4   about Norman that was admitted at the trial in the present case, but also deposition testimony, and

 5   testimony from the pretrial and trial proceedings in Davis's criminal case that had been presented to

 6   the district court in this case by defendants in support of a motion for summary judgment. In all, there

 7   was evidence consistent with virtually every aspect of the Norman Confession.

 8                  Access to guns: At trial, Shakima testified that in the months prior to Davis's arrest

 9   she had observed Norman with numerous guns. He briefly stored at her house at 650 Chauncey a bag

10   that contained two guns; she saw one when he removed it to take it with him and saw the other when

11   she searched the bag. (See Tr. 138-43.) At 642 Chauncey, Norman showed Shakima and Rasheem

12   his "new toys," consisting of four guns. (Id. at 136.) On another occasion, after leaving 642

13   Chauncey, Norman shot a gun in the air when he was angry with Davis for not having let him into 642

14   Chauncey. (See id. at 145-49.) Three witnesses testified that, during an argument with his cousin

15   Rasheem, Norman pointed a gun at Rasheem. (See id. at 150 (Shakima); id. at 439-40 (Davis);

16   Transcript of Suppression Hearing in United States v. Davis, No. 09-CR-829 (E.D.N.Y. Aug. 9, 2010)

17   ("Criminal Case Hearing"), at 183 (Rasheem); see also id. at 180-81 (Rasheem testifying that on more

18   than one occasion Norman had asked him to hide guns at 642 Chauncey).) And on the day before

19   Davis was arrested, he and Norman tussled at 642 Chauncey, and a gun fell out of Norman's pants (see

20   Tr. 442-43). At the end of that encounter Norman told Davis, "I'm going to get you." (Id. at 443.)

21   There was ample evidence that Norman possessed guns through October 1, 2009, increasing the

22   likelihood that he possessed or could obtain one to plant for Davis's arrest at 1 a.m. on October 2.


                                                       20
 1                  Access to crack: Shakima testified at trial that when Norman opened one of the duffel

 2   bags he briefly stored at her house, he took out a package of crack, saying he had to deliver it around

 3   the corner. (See Tr. 138-42.) Davis testified that he had observed Norman bagging crack in the

 4   basement of 642 Chauncey. (See id. at 458.) And Shakima had testified at Davis's criminal trial that

 5   she had seen Norman with crack. (See Trial Transcript in United States v. Davis, No. 09-CR-829

 6   (E.D.N.Y. Dec. 16, 2010), at 225-27.)

 7                  Access to 642 Chauncey: Shakima testified that Norman was often present at 642

 8   Chauncey. He came in and out of Jackson's house with a lot of different females, and she saw Jackson

 9   upset many times with Norman's coming into the house. (See Tr. 144.) Clara Jones testified that she

10   observed Norman coming "in and out" of 642 Chauncey in October 2009. (Id. at 95.) Rasheem

11   testified at the suppression hearing in Davis's criminal case that when Davis was living at 642

12   Chauncey, Rasheem and Norman were "very often" staying there as well. (Criminal Case Hearing

13   at 177.) And as to one occasion when Jackson was not at home and Davis would not unlock the door

14   or gate for Norman, both Shakima and Davis testified that Norman got into 642 Chauncey by climbing

15   the canopy structures between 640 and 642 Chauncey and entering through a window. (See

16   Tr. 144-48, 523-25.)

17                  Access to the police: Velez and Lukeson had been partners for some four years before

18   Davis was arrested (see Tr. 380, 338); Calhoun was their supervisor in 2009 (see, e.g., id. at 304); and

19   the three were "friends" (Deposition of Javier Velez at 28-29; Deposition of Gary Calhoun at 126-27).

20   The Norman Confession referred to the policemen whom Norman contacted to arrange Davis's arrest

21   as the "Three Amigos." (Tr. 178.) To contact them, Norman said he had tried to reach Velez by

22   telephone but had failed and had then tried Calhoun successfully. Velez testified that he in fact never


                                                       21
 1   gave out his telephone number; Calhoun, however, admitted to sometimes giving his telephone

 2   number to citizens who might be able to give him information. And although defendants testified that

 3   they did not know and had never heard of Norman, Rasheem testified at the suppression hearing in

 4   Davis's criminal case that one of Norman's nicknames in the neighborhood was "T.I.," which meant

 5   "[a] snitch" (Criminal Case Hearing at 181-82). Evidence that Norman was widely regarded as a

 6   snitch could properly be viewed as providing some credence for the proposition that he had covert

 7   access to some policemen.

 8                   In their motion for summary judgment in this case, defendants had stated as undisputed

 9   facts, with citations to, inter alia, sworn testimony in Davis's criminal case, that "Terrell [sic] Norman

10   was known in the neighborhood as a 'snitch'" (Defendants' Statement of Undisputed Facts Pursuant

11   to Local Civil Rule 56.1, ¶ 23); that "Terrell [sic] had been seen with drugs in packaging similar to

12   the drugs allegedly found on plaintiff" (id. ¶ 27); and that "[d]uring the criminal trial, Shakima Jones

13   recognized the gun allegedly found on Leroy Davis a[s] a gun previously belonging to Terrell [sic]"

14   (id. ¶ 28). And in their in limine motion, defendants had noted that "Shakima Jones testified at

15   [Davis's criminal] trial that she had heard Mr. Norman state 'I told you I was going to get him, yeah,

16   I got him already.' Cr. Trial Transcript, p. 241:3-5." (Defendants' In Limine Memorandum at xv.)

17                   If special corroboration is needed for the admission of statements against penal interest

18   in civil actions, there was ample basis for the district court to find such corroboration for the Norman

19   Confession here.

20                   Finally, even if we were to conclude that the court's admission of the Norman

21   Confession was error, we could not conclude that it affected defendants' substantial rights. As the

22   district court noted in denying defendants' motion for a new trial, although the jury might have been


                                                        22
 1   swayed by the evidence of the Norman Confession, that evidence was not likely to have had a material

 2   effect given the multiple implausibilities in defendants' own accounts of their actions and their claim

 3   that Davis had been carrying a bag that contained crack and a gun. For example:

 4          # Although Lukeson and Calhoun were in the front seats of the slowly patrolling car
 5          allegedly approaching Davis as he walked along Chauncey (see Tr. 348), neither
 6          Lukeson nor Calhoun saw Davis holding a bag, see D.Ct. Op., 15 F.Supp.3d at 239.

 7          # "Neither Lukeson nor Calhoun, riding in the same car [as Velez], corroborated
 8          [Velez's] testimony" that there was a "metallic" sound when a "plastic bag hit the
 9          ground." Id. at 240.

10          # "[I]t might have been seen as unlikely that Velez would jump from a moving
11          vehicle to verbally accost plaintiff without explaining to his partners what he had
12          observed." Id.

13          # Lukeson's excuse for taking Davis's keys and entering 642 Chauncey was his (and
14          Velez's) testimony that Davis was not carrying any identification; but the officers could
15          not explain away the fact that Davis had such identification when he arrived at the city
16          jail some two days later; the theory advanced by Velez and Calhoun that someone
17          might have brought Davis's identification to him at the precinct found no support in
18          the precinct records relating to Davis's detention there, see id.

19          # Lukeson, in search of the supposedly missing identification for Davis, took the keys
20          carried by Davis and entered the dark and unfamiliar house at 642 Chauncey (see
21          Tr. 386), apparently without telling Velez that was where he was going (see, e.g., id.
22          at 301, 355). Even leaving aside the lack of any constitutional justifiability for that
23          unauthorized entry, such an entry was simply reckless: Lukeson "could have been shot
24          by nervous homeowners or attacked by guard dogs. It could have been seen as
25          improbable that Lukeson would undertake this dangerous adventure without informing
26          his partner, Velez, what he was doing. Jurors had reason to doubt Lukeson's
27          explanation for why he entered the home, and to doubt Velez's claim that he had no
28          idea Lukeson had taken plaintiff's keys and was planning to enter plaintiff's house."
29          D.Ct. Op., 15 F.Supp.3d at 239-40 (emphasis added).

30          # Although Lukeson and Calhoun testified that Lukeson was inside 642 Chauncey for
31          only about half a minute, Shakima testified that she observed reflections suggesting
32          people moving about with flashlights inside 642 Chauncey for closer to half an hour.
33          And Holmes, who "appeared to be a reluctant witness" with "no apparent motive to
34          lie," observed an officer bringing a box out of 642 Chauncey. Id. at 240.



                                                       23
 1          # Thus, even absent the Norman Confession, the "jurors could have concluded that
 2          defendants discovered the gun and drugs in someone else's room in 642 Chauncey St.,
 3          or that defendants planted the evidence once their possible fishing expedition failed
 4          to yield any contraband." Id.

 5                    In light of the record, we see no abuse of discretion in the district court's denial of

 6   defendants' Rule 804(b)(3)-based motion for a new trial.



 7   B. Jury Issues

 8                    Defendants also contend that they are entitled to a new trial because of jury-related

 9   issues. Each issue was appropriately dealt with by the district court, and none of these contentions

10   warrants extended discussion.



11          1. Juror No. 8

12                    Defendants contend that they are entitled to a new trial on the ground that the district

13   court "failed to declare a mistrial when Juror 8, a juror whom we now know was voting in favor of

14   defendants, failed to appear for deliberations." (Defendants' brief on appeal at 49; see also id. (at the

15   end of the third day of deliberations, "Juror 8, after marching out of the jury room, was heard by

16   defense counsel saying in sum and substance, 'I hope they never pick me again, I am sick of being

17   here.' The following day Juror 8 did not appear for deliberations.").)

18                    The record shows that on the fourth day of deliberations, December 17, the district

19   court was informed that Juror 8 had called in and said he was ill and was on his way to see his doctor

20   (see Tr. 674); he informed the court that he suffered from high blood pressure and "ha[d] been ill for

21   the past two days" (id. at 675-76). The court exercised its discretion to "excuse a juror for good



                                                        24
 1   cause," Fed. R. Civ. P. 47(c), which includes sickness. The court was not required to order a mistrial.

 2                  Following defendants' posttrial motion for a new trial on the ground that the court

 3   should have adjourned the trial until Juror 8 could return for deliberations, the court conducted a

 4   posttrial hearing on March 21, 2014:

 5                           Juror 8 testified under oath via telephone at the March 21, 2014
 6                  hearing. He explained that his physical condition "was horrible" on the
 7                  morning of December 17 and that he was suffering from chest pains, anxiety,
 8                  and "some bleeding." Hr'g Tr. 72:25-73:1. He confirmed that he was
 9                  "absolutely not" physically capable of continuing with deliberations. Hr'g
10                  Tr. 73:7. When asked if he felt "pressured off the jury," Juror 8 signaled that
11                  he felt some general pressure related to the deliberation process, but expressly
12                  rejected the suggestion ("no, no, no") that he was pressured off the jury. Hr'g
13                  Tr. 73:22-73:23.

14   D.Ct. Op., 15 F.Supp.3d at 251. On the basis of these responses, the court found that

15                  while Juror 8's alleged comment ("I'm sick of being here") indicated frustration
16                  with the deliberation process, it was not a "red flag" signaling that he was a
17                  "hold out." It would be surprising if an active and involved juror was not
18                  growing somewhat frustrated after three days of deliberations. The comment
19                  alone was not enough to trigger a fuller investigation on the court's part.
20                  Second, any further investigation would have confirmed what was already
21                  known: that Juror 8 was sick, in the process of obtaining medical relief, and
22                  physically unable to continue with deliberations. The dismissal was warranted.

23   Id. We see no error or abuse of discretion in this decision.



24          2. Extraneous Materials in the Jury Room

25                  Defendants also sought a new trial on the ground that the jury's deliberations had been

26   tainted by two types of extraneous materials that were brought into the jury room: "(1) a copy of the

27   Wall Street Journal containing an article suggesting that a Nassau County police official was corrupt,

28   and (2) two bags allegedly used to test aspects of defendants' story." D.Ct. Op., 15 F.Supp.3d



                                                       25
 1   at 240-41. Extra-record materials used in jury deliberations are presumptively prejudicial, but "[t]hat

 2   does not . . . mean that a new trial is required whenever a juror has been exposed to extrinsic

 3   information," Manley v. AmBase Corp., 337 F.3d 237, 251 (2d Cir. 2003). When a new trial is sought

 4   based on the introduction of extra-record evidence during jury deliberations, the trial court has broad

 5   discretion to deny the motion if it finds, in light of "(1) the nature of the information or contact at

 6   issue, and (2) its probable effect on a hypothetical average jury," id. at 252 (internal quotation marks

 7   omitted), that the impropriety has not had a prejudicial effect, see, e.g., United States v. Weiss, 752

 8   F.2d 777, 783 (2d Cir.), cert. denied, 474 U.S. 944 (1985); Konkel v. Bob Evans Farms Inc., 165 F.3d

 9   275, 282 (4th Cir.) ("Experiments performed by juries . . . constitute jury misconduct requiring a new

10   trial, unless no prejudice results."), cert denied, 528 U.S. 877 (1999). "The effect inquiry properly

11   considers the entire record in making an objective assessment of possible prejudice." United States

12   v. Farhane, 634 F.3d 127, 169 (2d Cir.) (internal quotation marks omitted), cert. denied, 132 S. Ct. 833

13   (2011). The district court here held a hearing to conduct such an inquiry.



14                  a. The Newspaper

15                  At the March 21 hearing, Juror 9 testified that it had been his habit to bring the Wall

16   Street Journal to court with him, and that on Friday, December 13, 2013, the newspaper contained an

17   article about police misconduct. He could not recall the article's specific contents. Juror 7 testified

18   that Juror 9 brought in and was waving around a newspaper article about a "dirty cop on Long Island,"

19   saying that "if this cop could be dirty, [the defendants] could be dirty" (Hearing Transcript, March 21,

20   2014 ("March 21 Hearing Tr."), at 11). Juror 7 could not remember any specifics of the article or

21   recall which newspaper published it, but she said she had prevented the article from being shown to


                                                       26
 1   the other jurors because it was irrelevant to the case. The court found that the December 13, 2013

 2   edition of the Wall Street Journal carried a story that detailed the resignation of the Nassau County

 3   police commissioner, who had been accused of ordering the arrest of a man for outstanding court fines

 4   at the behest of a political donor. See D.Ct. Op., 15 F.Supp.3d at 242.

 5                   An attorney from New York City's Office of Corporation Counsel testified that he

 6   interviewed Juror 9 on December 17 shortly after deliberations ended. He suggested that Juror 9 may

 7   have had the December 13 article with him then. However, the attorney neither saw what newspaper

 8   Juror 9 was carrying nor read any part of that paper.

 9                   The court found that the December 13 Wall Street Journal article described "alleged

10   wrongdoing [that] did not involve fabrication of evidence, false testimony, or other misconduct by

11   defendants or New York City Police Department officers"; that Juror 9 had the article in court only

12   on December 13 as he testified; and that Juror 9 had no improper motive in bringing the newspaper.

13   D.Ct. Op., 15 F.Supp.3d at 242. The court's conclusion that this event did not warrant a new trial was

14   not an abuse of discretion.



15                   b. The Bag Demonstrations

16                   Finally, there was evidence at the March 21 Hearing that jurors conducted more than

17   one experiment or "demonstration" (March 21 Hearing Tr. 15) with respect to defendants' testimony

18   that Davis had carried a bag that held soda, chicken, crack, and a gun and that Velez fathomed the

19   presence of a gun from the sound of the bag hitting the ground. Juror 7 testified that she brought a

20   "larger . . . black bag, like the kind that holds two bottles of wine," to show other jurors it was possible

21   to fit those items in one plastic bag. (Id. at 13-14.) Two jurors testified that Juror 8 brought in a


                                                         27
 1   plastic bag, filled it with items similar to those Davis had allegedly been carrying, and dropped it to

 2   "demonstrate that . . . a loud enough sound . . . could be made" for Velez to hear Davis's gun hit the

 3   ground from his police car (id. at 38). Juror 7 then brought in a can of soup to place in a bag, planning

 4   to show that a metallic sound can be produced by anything metallic.

 5                  The court stated that it was unclear whether it was appropriate to receive such

 6   testimony from the jurors, given that, with respect to the validity of a jury verdict,

 7                  Federal Rule of Evidence 606 prohibits testimony "about any . . . incident that
 8                  occurred during the jury's deliberations; the effect of anything on that juror's
 9                  or another juror's vote; or any juror's mental processes concerning the verdict
10                  or indictment."

11   D.Ct. Op., 15 F.Supp.3d at 244 (quoting Fed. R. Evid. 606(b)(1)). However, noting the Rule 606

12   exceptions that allow "[a] juror [to] testify about 'extraneous prejudicial information' or whether 'an

13   outside influence was improperly brought to bear on any juror,'" D.Ct. Op., 15 F.Supp.3d at 244

14   (quoting Fed. R. Evid. 606(b)(2)(A) and (B)), the court proceeded on the assumption that the evidence

15   as to the juror demonstrations was properly before it.

16                  The court noted that all of the experiments or demonstrations concerned whether a bag

17   could contain a soda, a box of chicken, bags of crack, and a gun, and whether a bag that contains a

18   metal object makes a sound when it falls to the ground, see D.Ct. Op., 15 F.Supp.3d at 245. The court

19   found these events inconsequential:

20                  [T]he "experiment" of dropping a bag with "stuff in [it]" would not generate
21                  any information or data that would be novel for an average juror. A juror can
22                  be expected to infer the sound, or range of sounds, a dropped bag with diverse
23                  contents might make upon hitting the ground from years of living.

24   Id. The court concluded that these events did not generate "a seriously erroneous result" or produce

25   "a miscarriage of justice." Id. at 244 (internal quotation marks omitted). In light of the record, we


                                                        28
 1   cannot conclude that the denial of a new trial on the basis of experiments or demonstrations as to the

 2   capacity and acoustic properties of plastic bags was an abuse of discretion.



 3   C. Other Contentions

 4                   Defendants also complain of evidentiary rulings in addition to the admission of Rule

 5   804(b)(3) evidence; and Lukeson and Calhoun contend that the court should have granted judgment

 6   as a matter of law dismissing Davis's malicious prosecution claims against them. These contentions

 7   need not detain us long.



 8           1. Evidentiary Rulings

 9                   Defendants argue that the district court should have allowed them to impeach Davis's

10   credibility with evidence of his prior felony convictions (see defendants' brief on appeal at 44-48),

11   especially since the court allowed Davis to introduce evidence of "bad acts" by Norman (id. at 44).

12   We disagree. As noted in Part II.A.2. above, the evidence as to Norman's conduct with regard to drugs

13   and guns was relevant to show his habitual access to the type of contraband for which Davis was

14   arrested. In contrast, the district court found that Davis's prior convictions, for firearms offenses, had

15   little relevance for impeachment purposes. Two of them were very old; and the court found that, given

16   the age and nature of the convictions, their probative value as to Davis's truthfulness would be

17   "minimal," D.Ct. Op., 15 F.Supp.3d at 252-53. And the jury, in assessing the existence of probable

18   cause for Davis's arrest for carrying a gun, could be unduly influenced by the fact that he had

19   previously been convicted of firearms offenses. Thus, the court excluded evidence of Davis's prior

20   convictions after a Rule "403" balancing analysis. (Hearing Transcript, November 25, 2013, at 30.)


                                                        29
 1   We see no abuse of discretion in the court's ruling that the danger of unfair prejudice from the

 2   evidence of Davis's prior convictions substantially outweighed the evidence's probative value.

 3                  Defendants also contend that the Norman Confession should have been excluded from

 4   evidence pursuant to Rule 403 as unfairly prejudicial to defendants because it was "of such

 5   questionable reliability." (Defendants' brief on appeal at 35.) This contention is, at bottom, simply

 6   an attack on the credibility of Shakima in recounting the Confession. However, where a hearsay

 7   "'declaration comes within a category defined as an exception, the declaration is admissible without

 8   any preliminary finding of probable credibility by the judge.'" United States v. DiNome, 954 F.2d 839,

 9   846 (2d Cir.) (quoting United States v. DiMaria, 727 F.2d 265, 272 (2d Cir. 1984)), cert. denied, 506

10   U.S. 830 (1992). Credibility questions go to the weight of the evidence, which "is a matter to be

11   argued to the trier of fact, not a basis for reversal on appeal," SEC v. Razmilovic, 738 F.3d 14, 35 (2d

12   Cir. 2013), cert. denied, 134 S. Ct. 1564 (2014).



13          2.      The Contention that Lukeson and Calhoun Were Entitled to Judgment as a Matter of
14                  Law Dismissing the Claims Against Them for Malicious Prosecution

15                  Lukeson and Calhoun contend that the district court should have granted judgment as

16   a matter of law in their favor on Davis's claims of malicious prosecution, pointing out that it was

17   Velez who forwarded Davis's case to the prosecutors and arguing that Lukeson and Calhoun had no

18   role in the initiation or continuation of the prosecution, which is an essential element of that claim,

19   see generally Manganiello v. City of New York, 612 F.3d 149, 161 (2d Cir. 2010). Although the

20   district court denied their motions for judgment as a matter of law, it found the issue close.

21                  Given that Lukeson admitted that he had entered 642 Chauncey, and that the jury could



                                                         30
 1   credit the testimony of Holmes that "he saw an officer emerge from the house with a box (plausibly

 2   with evidence against [Davis])" and show it to another officer, D.Ct. Op., 15 F.Supp.3d at 240, the

 3   jury could infer that the officer who exited 642 Chauncey with the box was Lukeson, and that the

 4   officer to whom he showed the box was Calhoun, who, the court noted, "was in charge of the unit of

 5   three at the scene" (Tr. 510). Further, the court noted that Calhoun "was in a position to see that one

 6   of his men was going in and, if the plaintiff's witness is to be believed, for a substantial length of time

 7   searching around so that he was in a position to observe that [Lukeson] was lying when he said that

 8   he just went in for a few seconds, and he was in a position to see that the total presentation must have

 9   been inappropriate and wrong." (Id.) Given that the jury could have discredited Lukeson's

10   explanation for entering 642 Chauncey, see, e.g., D.Ct. Op., 15 F.Supp.3d at 239-40, the "jurors could

11   have concluded . . . that defendants planted the evidence once their possible fishing expedition failed

12   to yield any contraband," id. at 240.

13                   The court stated that even if defendants were entitled to immunity with respect to "their

14   own testimony" against Davis in the criminal case, Calhoun "should have been aware" during the

15   prosecution of Davis "that his fellow officer [Lukeson] was lying," and the court would "not decid[e]"

16   that they were "immune for not bringing to the [criminal c]ourt's attention the false testimony of

17   somebody else." (Tr. 512-13; see id. at 697.)

18                   Had all of the defendants not persisted in their version of the basis for Davis's arrest,

19   the criminal prosecution of Davis would likely have come to a halt. We have not squarely dealt with

20   the question of whether trial evidence such as that presented in this case--which, taken in the light

21   most favorable to the plaintiff, with all credibility assessments made in his favor, permits the inference

22   of defendants' collusive fabrication of the sole evidence grounding the subsequent prosecution--is


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 1   sufficient as a matter of law to prove the initiation/continuation element of a claim for malicious

 2   prosecution. We have noted, however, in dealing with appeals from grants or denials of summary

 3   judgment, that "a person is responsible for the natural consequences of his actions," e.g., Zahrey v.

 4   Coffey, 221 F.3d 342, 357 (2d Cir. 2000) (internal quotation marks omitted); and we have said that

 5   "[t]o hold that police officers, [even if they] lawfully arrested a suspect, are then free to fabricate false

 6   confessions at will, would make a mockery of the notion that Americans enjoy the protection of due

 7   process of the law and fundamental justice," Ricciuti v. N.Y.C. Transit Authority, 124 F.3d 123, 130

 8   (2d Cir. 1997). We conclude, however, that this case is not an appropriate one in which to further

 9   explore the initiation/continuation element of malicious prosecution because, in light of the manner

10   in which the matter was presented to and resolved by the jury, we cannot see that the challenge by

11   Lukeson and Calhoun, if upheld, would affect the final judgment.

12                   The jury was asked to decide, with respect to each of the three defendants, Davis's three

13   § 1983 claims: false arrest, i.e., arrest without probable cause; malicious prosecution, i.e., initiating

14   or continuing a prosecution without probable cause and with malice; and denial of a fair trial, i.e.,

15   creating materially false evidence and sending it to the prosecutor. (See Tr. 620-26.) The jury was

16   given a separate verdict sheet with respect to each defendant, with each sheet listing the three § 1983

17   claims. It was instructed that as to each claim against each defendant it must find whether or not

18   Davis had proven that defendant's liability. The jury was then instructed, "if you find any of th[e three

19   theories of liability] proved" against a given defendant, "you'll find damages" against that defendant.

20   (Id. at 630 (emphasis added).)

21                   As to each defendant, the jury found all three of Davis's § 1983 claims proven. It

22   awarded compensatory damages to Davis against all three defendants. And, having been instructed


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 1   that it had discretion to award punitive damages against a defendant if it found that defendant to have

 2   acted with malice or with reckless indifference to Davis's rights (see id. at 628), the jury awarded

 3   punitive damages against all three defendants.

 4                  The jury was not asked to apportion an award of its damages against a given defendant

 5   among the theories of liability if it found more than one theory proven, and it did not do so. (See

 6   Tr. 630, 687-90, 693-94.) Defendants do not argue that it was error to instruct the jury to award

 7   damages to Davis if it found "any" of his three § 1983 theories of liability proven; nor do they argue

 8   that it was error not to submit more specific questions to the jury that might reveal its relative

 9   evaluations of Davis's theories.

10                  Given the similarities between the malicious prosecution claims and the fair trial

11   claims, and the absence of any challenge by defendants to the legal sufficiency of the evidence to

12   support the verdicts on the fair trial claims, we conclude that even if we were persuaded that the

13   malicious prosecution claims against Lukeson and Calhoun should have been dismissed, there would

14   be no basis on which to overturn the verdicts against them for denial of a fair trial or to find that the

15   damages awarded were impermissible with respect to the fair trial verdicts.

16                  Since a decision on the malicious-prosecution-claim challenges of Lukeson and

17   Calhoun would have no effect on the judgment against them, we decline to further consider those

18   challenges.




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1                                            CONCLUSION



2                  We have considered all of defendants' remaining contentions on this appeal and have

3   found them to be without merit. The judgment of the district court is affirmed.




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