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<pre>                 United States Court of Appeals <br>                     For the First Circuit <br> <br> <br> <br> <br>No. 98-1014 <br> <br>                       WILLIAM L. WILLIAMS, <br> <br>                       Plaintiff, Appellee, <br> <br>                                v. <br> <br>                    SCOTT DRAKE AND FRED FORD, <br> <br>                     Defendants, Appellants. <br> <br> <br> <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                    FOR THE DISTRICT OF MAINE <br> <br>         [Hon. Eugene W. Beaulieu, U.S. Magistrate Judge] <br> <br> <br> <br>                              Before <br> <br>                Selya and Boudin, Circuit Judges, <br>                                 <br>             and Schwarzer,* Senior District Judge. <br>                                 <br>                                 <br> <br> <br>     Diane Sleek, Assistant Attorney General, State of Maine, with <br>whom Andrew Ketterer, Attorney General, and Peter J. Brann, <br>Assistant Attorney General, were on brief, for appellants. <br>     Stuart W. Tisdale, Jr. for appellee. <br> <br> <br> <br> <br>July 14, 1998 <br> <br> <br> <br>                                 <br>_______________ <br>*Of the Northern District of California, sitting by designation.

  SELYA, Circuit Judge.  Two correctional officers, Scott <br>Drake and Francis ("Fred") Ford, appeal from an adverse jury <br>verdict awarding damages to a former prison inmate.  They claim <br>that the lower court erroneously excluded relevant evidence and <br>improperly retained a juror whose mental faculties were suspect.  <br>Finding none of their animadversions persuasive, we affirm. <br>I.  BACKGROUND <br>  In 1994, plaintiff-appellee William L. Williams resided <br>in the minimum security cellblock at the Maine Correctional <br>Institute-Warren (MCI-Warren).  Prison regulations afforded him a <br>daily three-hour recreational period.  Inmates can spend this <br>interlude indoors (i.e., in the dayroom, where they can watch <br>television and make telephone calls) or outdoors (i.e., in the yard <br>   a paved area where they can play basketball or exercise). <br>  For obvious reasons, correctional officers keep inmates <br>under constant observation during the recreational period.  If an <br>inmate desires to move from the yard to the dayroom, he first must <br>approach the control booth (a glassed-in enclosure that overlooks <br>the yard) and request permission.  If leave is granted, the <br>supervising correctional officer opens a door that separates the <br>yard from the dayroom.  Once inside, the inmate must remain within <br>the area demarcated by a yellow line and receive a correctional <br>officer's permission before crossing the line for any reason. <br>  On June 19, 1994, Williams proceeded from the cellblock <br>through the dayroom and into the yard.  He played basketball for a <br>while.  During a hiatus, he reentered the dayroom (the door to <br>which temporarily had been left open).  Because the water fountain <br>was located beyond the yellow line, Williams sought and received <br>permission to slake his thirst.  As he repaired to the yard, Ford <br>approached him and asked if he needed to see the nurse.  Williams <br>replied that he did not, but expressed curiosity as to why Ford had <br>inquired.  When he did not receive an answer, he returned to the <br>basketball game. <br>  Minutes later, the scrimmage ended and Williams decided <br>to get another drink.  The door to the dayroom was closed, so he <br>sought and received permission to enter.  Once inside, he again <br>sought and received permission to cross the yellow line en route to <br>the water fountain.  After sipping his fill, Williams noticed Ford <br>and another correctional officer standing directly behind him.  <br>Ford told Williams that he wanted to talk with him.  Williams asked <br>if the conversation could wait as his recreational period was <br>limited and Ford could speak to him at any time. <br>  On Williams's version of events, Ford questioned his <br>attitude, told him that his recreational period had ended, grabbed <br>his arm, and began to lead him back to his cell.  Williams jerked <br>his arm away and an altercation erupted.  Ford punched Williams in <br>the face at least three times.  Other correctional officers, <br>including Drake, entered the fray.  While Williams lay prostrate, <br>the officers cuffed his hands and shackled his legs.  Drake then <br>knelt down, placed his hands around Williams's neck, squeezed, and <br>asked:  "Is this what you want?  Have you had enough?"  Drake's <br>chokehold lasted no more than twenty seconds.  Several officers <br>then escorted Williams to new accommodations in MCI-Warren's high <br>security section. <br>     A disciplinary board (the Board), an internal body <br>composed entirely of correctional officers, charged Williams <br>administratively with inflicting bodily harm on Ford.  Three days <br>after the melee, the Board held a hearing, found Williams guilty, <br>placed him in disciplinary segregation, and reduced his accumulated <br>"good time" credits. <br>     Invoking 42 U.S.C.  1983 (1994), Williams subsequently <br>filed an action in the United States District Court for the <br>District of Maine.  In it, he alleged that his constitutional <br>rights had been flouted in a variety of ways.  The parties agreed <br>to proceed before a magistrate judge, see 28 U.S.C.  636(c) <br>(1994); Fed R. Civ. P. 73(b), who eventually narrowed the case to <br>Williams's excessive force claim against Drake and Ford.  A jury <br>trial yielded identical verdicts against both correctional <br>officers:  $1 in actual damages and $15,000 in punitive damages.  <br>Following their unsuccessful pursuit of post-trial relief before <br>the magistrate, Drake and Ford jointly prosecuted this appeal. <br>II.  ANALYSIS <br>     We subdivide the appellants' challenge to the jury <br>verdict into moieties involving, respectively, the disputed <br>evidentiary rulings and the retention of the suspect juror. <br>                   A.  The Evidentiary Rulings. <br>     The appellants assign error to three separate rulings <br>excluding evidence.  We test each ruling for abuse of discretion, <br>see Blinzler v. Marriot Int'l., Inc., 81 F.3d 1148, 1158 (1st Cir. <br>1996); Veranda Beach Club Ltd. Partnership v. Western Surety Co., <br>936 F.2d 1364, 1373 (1st Cir. 1991), and then consider the <br>appellants' cumulative-error plaint. <br>     1.  The Guilty Plea.  Prior to trial, Williams filed a <br>motion in limine to exclude evidence of a so-called guilty plea.  <br>The court granted the motion provisionally, subject to <br>reexamination of the question at trial.  See, e.g., United Statesv. Holmquist, 36 F.3d 154, 163-66 (1st Cir. 1994) (describing this <br>salutary practice).  During defense counsel's cross-examination of <br>Williams, she inquired about the plea, thus sparking a bench <br>conference.  We recount the relevant facts, consistent with the <br>representations made to the court at that time. <br>     When the Board charged Williams with inflicting bodily <br>harm on Ford during the dayroom scuffle, Williams initially <br>maintained his innocence.  The Board found otherwise.  Williams <br>appealed to the warden, who granted a new hearing.  A correctional <br>officer delivered notification of this action to Williams at 6:45 <br>a.m. on June 21, 1994.  Williams claims to have been groggy due to <br>the early hour and unaware that the notification concerned a newhearing.  Convinced that further attempts to exonerate himself <br>before decisionmakers whom he considered biased would be futile, he <br>crossed out his previous "not guilty" plea and entered the word <br>"guilty" on the form.  As a result, no new hearing transpired. <br>     Upon considering these facts, and hearing both lawyers at <br>length, the magistrate reaffirmed his earlier ruling, sustained the <br>plaintiff's objection to the pending question, and reminded counsel <br>that such questions were prohibited.  Significantly, the court did <br>not preclude testimony concerning the disciplinary proceedings in <br>gross, but stated repeatedly that the defense could ask Williams <br>about the nature of the hearing and about any statements that he <br>made before the Board. <br>     At the end of the plaintiff's case in chief, defense <br>counsel made an adequate offer of proof as to what would have been <br>asked and answered with regard to this guilty plea had she been <br>given the opportunity to inquire.  In rejecting this tender, the <br>magistrate elaborated on his rationale for excluding the evidence.  <br>He reasoned that admitting the evidence would necessitate a trial <br>within a trial, focusing too bright a spotlight on Williams's <br>motivation for changing his plea.  In the court's view, this detour <br>would likely confuse the jurors and divert their attention from the <br>issues committed to their discernment. <br>     Fed R. Evid. 403 controls this point.  Trial courts have <br>significant leeway in determining whether to admit or exclude <br>evidence under the aegis of Rule 403.  See Daigle v. Maine Med. <br>Ctr., Inc., 14 F.3d 684, 690 (1st Cir. 1994).  This latitudinarian <br>approach dictates that "only rarely   and in extraordinary <br>circumstances   will we, from the vista of a cold appellate record, <br>reverse a district court's on-the-spot judgment concerning the <br>relative weighing of probative value and unfair effect."  Freemanv. Package Mach. Co., 865 F.2d 1331, 1340 (1st Cir. 1988).  Viewed <br>against this welcoming backdrop, the court's exclusion of the <br>guilty plea evidence passes muster. <br>     The appellants harp on the demonstrable relevance of the <br>guilty plea evidence.  But this is only part of the picture.  Rule <br>403 allows the exclusion of evidence which, though relevant, <br>carries unwanted baggage, such as unfair prejudice or potential <br>juror confusion.  See United States v. Fulmer, 108 F.3d 1486, 1498 <br>(1st Cir. 1997); United States v. Boylan, 898 F.2d 230, 255-56 (1st <br>Cir. 1990).  Even an admission by a party opponent is subject to <br>exclusion under Rule 403 if its potential for unfair prejudice <br>overwhelms its probative worth.  See 5 Jack B. Weinstein et al., <br>Weinstein's Federal Evidence  801.20[3], at 801-44 (2d ed. 1998).  <br>The rule thus constitutes a tool that a trial judge can use to keep <br>a jury's attention riveted on the dispositive issues. <br>     In this instance, the magistrate had adequate reason to <br>wield the tool.  The probative value of the guilty plea evidence <br>was limited; after all, the jury heard testimony anent the <br>proceedings before the Board, and the circumstances surrounding the <br>plea made Williams's explanation of how it came about plausible.  <br>Then, too, the potential for muddling the issues was real:  the <br>procedural and substantive differences between a prison <br>disciplinary board hearing and a jury trial easily could have led <br>to confusion.  Moreover, delving into Williams's motivation for <br>changing his plea could well have created an unwarranted sideshow, <br>drawing attention from the main event.  Equally as important, the <br>proffered evidence contained the seeds of unfair prejudice.  The <br>jury might have been tempted to find against Williams solely on the <br>basis that he admitted guilt to the Board, rather than focusing on <br>the central (and substantially separate) issue of whether the <br>appellants' use of force was appropriate under the circumstances. <br>     This is not to say that the magistrate, in the exercise <br>of his discretion, could not have admitted the evidence.  But Rule <br>403 determinations, by their nature, are judgment calls   and on <br>this occasion, the magistrate deemed exclusion the better course.  <br>Nor did he reach this conclusion casually:  he approached the <br>problem cautiously, deferring a final decision until the evidence <br>appeared in full context; then, based on the guilty plea's <br>relatively low probative value and its potential for breeding <br>confusion, distraction, and undue prejudice, he rejected the <br>proffer.  Given this careful balancing, we cannot say that the <br>trial court exceeded its wide discretion in deciding to exclude the <br>evidence.  See Diaz v. Cianci, 737 F.2d 138, 139 (1st Cir. 1984) <br>(holding evidence of a plaintiff's conviction in a juvenile <br>proceeding for assaulting officers excludable as prejudicial in a <br>subsequent lawsuit). <br>     2.  MCI-Warren.  During opening statements, defense <br>counsel referred to Williams's home away from home as the "highest <br>security prison in the State of Maine, housing the most dangerous <br>prisoners in the State of Maine."  Williams's counsel objected to <br>this categorization and the magistrate sustained the objection.  <br>During a subsequent bench conference, defense counsel asked for an <br>explanation.  The magistrate stated that he believed the reference <br>was unduly prejudicial; labeling the security status of MCI-Warren <br>and stereotyping its denizens could lead the jury to conclude that <br>Williams must be a menace and, hence, that the officers' conduct <br>during the dayroom incident was justified. <br>     We find no abuse of discretion in the magistrate's <br>ruling.  As we already have observed, under Rule 403, potentially <br>inflammatory evidence may be excluded if the danger of unfair <br>prejudice substantially outweighs its probative value.  See United <br>States v. Houlihan, 92 F.3d 1271, 1282 n.6 (1st Cir. 1996), cert.denied, 117 S. Ct. 963 (1997).  Describing MCI-Warren as a <br>repository for Maine's most dangerous offenders tends to stereotype <br>Williams.  As the magistrate explained, this portrayal could have <br>wrought unfair prejudice by inducing the jury to turn aside <br>Williams's lawsuit based on assumed character traits, rather than <br>on competent evidence. <br>     The propriety of this ruling is reinforced by the narrow <br>crafting of the preclusion.  Far from prohibiting all relevant <br>testimony about security issues, the magistrate allowed the defense <br>to introduce proof of MCI-Warren's security procedures and barred <br>only the effort to affix a pejorative label on the facility and its <br>occupants.  A ruling that curbs rhetorical flourishes, but <br>nonetheless allows the introduction of the substance underlying the <br>disputed point, rarely will violate Rule 403.  See, e.g., Boylan, <br>898 F.2d at 255-56.  No such violation exists here. <br>     3.  The Consequences of Indiscretion.  On Ford's redirect <br>examination, his counsel sought to elicit testimony about the <br>disciplinary consequences that might attend a correctional <br>officer's unjustified striking of an inmate.  Williams's lawyer <br>objected successfully.  The appellants assign error. <br>     We do not need to dwell upon the speculative nature of <br>the question (although that, in itself, might well be a valid <br>ground for upholding the objection).  It is a bedrock rule of trial <br>practice that, to preserve for appellate review a claim of error <br>premised on the exclusion of evidence, the aggrieved party must <br>ensure that the record sufficiently reflects the content of the <br>proposed evidence.  Here, the appellants made no offer of proof as <br>to what Ford's response would have been if permitted to answer the <br>question.  That omission is fatal.  See Fed. R. Evid. 103(a)(2); <br>see also Cumpiano v. Banco Santander P.R., 902 F.2d 148, 157 n.4 <br>(1st Cir. 1990); McDonald v. Federal Labs., Inc., 724 F.2d 243, 248 <br>(1st Cir. 1984). <br>     4.  Cumulative Effect.  The appellants attempt to find <br>strength in numbers by contending that the cumulative effect of the <br>disputed evidentiary rulings so tainted the proceedings as to <br>require a new trial.  The argument is no stranger to this court.  <br>See, e.g., United States v. Sepulveda, 15 F.3d 1161, 1195 (1st Cir. <br>1993), United States v. Dwyer, 843 F.2d 60, 65 (1st Cir. 1988).  To <br>deploy it successfully, however, a party must establish that <br>individual miscues, while insufficient in themselves to warrant a <br>new trial, have an aggregate effect that impugns the fairness of <br>the proceedings and thus undermines the trustworthiness of the <br>verdict.  See Sepulveda, 15 F.3d at 1195-96.  In other words, we <br>will order a new trial on the basis of cumulative error only if <br>multiple errors synergistically achieve "the critical mass <br>necessary to cast a shadow upon the integrity of the verdict."  Id.at 1196. <br>     This principle is cold comfort to the appellants.  As <br>discussed supra, we find no error in the trial court's serial <br>decisions to exclude the three pieces of evidence that the <br>appellants wanted to introduce.  Absent any particularized error, <br>there can be no cumulative error.  See United States v. Stokes, 124 <br>F.3d 39, 43 (1st Cir. 1997) (holding that "cumulative-error <br>analysis is inappropriate when a party complains of the cumulative <br>effect of non-errors"), cert. denied, 118 S. Ct. 1103 (1998).  <br>Hence, this assignment of error collapses of its own weight. <br>                    B.  The Loquacious Juror. <br>     During a recess on the first day of trial, a voluble <br>juror struck up a conversation with a court attach.  The juror   <br>whom we shall call by the nom de guerre "Smith"   recounted his <br>recent jury service in an unrelated criminal case and confided that <br>he had come to believe the accused might be involved in the <br>celebrated murder of JonBenet Ramsey.  The attach brought this <br>remark to the magistrate's attention later that day and the <br>magistrate promptly informed the lawyers.  Defense counsel <br>requested Smith's ouster, but Williams's attorney demurred.  The <br>magistrate declined to decommission the juror, noting that Smith's <br>statement concerned a completely unrelated case.  The appellants <br>protest this decision, claiming that Smith's continued jury service <br>and his participation in the deliberations tainted the verdict <br>because his comment conclusively evidenced his incompetence to make <br>a rational judgment. <br>     Fed R. Civ. P. 47(c) provides that a trial judge "may for <br>good cause excuse a juror from service."  We review the trial <br>court's exercise (or non-exercise) of this authority for abuse of <br>discretion.  See United States v. Gonzalez-Soberal, 109 F.3d 64, 69 <br>(1st Cir. 1997).  The magistrate's decision to permit Smith's <br>continued service fell well within the ambit of this discretion. <br>     We start with the obvious.  Smith's remark does not <br>evince any bias in Williams's favor or any prejudice against the <br>appellants; indeed, as the magistrate observed, the comment has no <br>bearing whatever on the case sub judice.  Moreover, the comment <br>does not call into legitimate question Smith's ability to decide <br>the case at hand based solely on the evidence presented at trial.  <br>Under ordinary circumstances, then, it would not be error to retain <br>the juror.  See id. at 69-70; United States v. Angiulo, 897 F.2d <br>1169, 1185 (1st Cir. 1990). <br>     Of course, the appellants asseverate that the <br>circumstances here are far from ordinary.  Smith's statement, they <br>maintain, is so bizarre that it makes manifest his incompetency to <br>sit in judgment on any case.  We accept the appellant's core <br>premise:  a person incapable of making rational judgments should <br>not be permitted to serve on a trial jury if that disability is <br>called to the judge's attention and a party seasonably requests the <br>juror's removal.  See United States v. Walsh, 75 F.3d 1, 4-5 (1st <br>Cir. 1996). <br>     Having accepted this premise, however, we do not share <br>the appellants' conclusion.  The juror's remark, though peculiar, <br>did not in and of itself evince an inability to form rational <br>judgments, particularly since no meaningful context was afforded <br>within which to evaluate the statement.  Consequently, it was not <br>incumbent on the court to remove Smith from the panel.  See United <br>States v. Vargas, 606 F.2d 341, 345-46 (1st Cir. 1979) (holding <br>that, absent clear evidence of incompetency, trial court did not <br>abuse its discretion by retaining juror); cf. United States v. <br>Corbin, 590 F.2d 398, 400 (1st Cir. 1979) (affirming juror's <br>removal, but noting that removal was discretionary, not mandatory, <br>when the suspect statement seemed "more a piece of eccentricity <br>than a meaningful comment"). <br>     Our conclusion is fortified by the appellants' actions.  <br>Although Smith's statement sounds more than a bit farfetched, it <br>cannot meaningfully be evaluated on this exiguous record   and the <br>appellants did nothing either to fill this void or to create a <br>record that might lend credence to their fears about Smith's <br>rationality.  A voir dire inquiry into a juror's fitness for <br>continued service is often a useful testing device, see, e.g., <br>Thorpe v. Mutual of Omaha Ins. Co., 984 F.2d 541, 545 (1st Cir. <br>1993), but the appellants at no time suggested such an inquiry.  <br>The challenged comment was not so plainly indicative of unfitness <br>that it required the trial court, without more, to oust the juror, <br>and the responsibility for requesting a more in-depth probe rested <br>with the parties objecting to Smith's continued participation.  SeeUnited States v. Newman, 982 F.2d 665, 669-70 (1st Cir. 1992).  In <br>this type of situation, courts   like the Deity   are more prone to <br>help those who help themselves. <br>     We need go no further.  We conclude that on this <br>bareboned record the magistrate's decision that Smith was <br>presumptively fit to continue serving as a juror in a civil case <br>unrelated to the notorious murder to which his eccentric comment <br>pertained was not an abuse of discretion. <br> <br>Affirmed.</pre>

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