          United States Court of Appeals
                       For the First Circuit


No. 11-1649

                          JAMES J. KENNEY,

                       Plaintiff, Appellant,

                                 v.

                       JASON T. HEAD, et al.

                       Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                               Before

          Boudin, Stahl, and Thompson, Circuit Judges.


     John R. Mahoney, Asquith & Mahoney, LLP, for appellant.
     Marc DeSisto, DeSisto Law, with whom Karen K. Corcoran and
Kathleen M. Daniels were on brief, for appellees.



                          January 26, 2012
          STAHL, Circuit Judge. After James J. Kenney was arrested

for obstructing a police officer, charges which were later dropped,

he brought an action against the two officers involved, Jason Head

and Stephen Head, for various alleged violations of 42 U.S.C.

§ 1983.   Ultimately, two of Kenney's claims against Jason Head

reached a jury, and the jury found for Head on both counts.   Kenney

moved for a new trial based on a preserved objection to the

district court's decision to exclude certain evidence.    After the

district court denied Kenney's motion, he appealed.      Finding no

abuse of discretion, we affirm.

                       I. Facts & Background

          At around 1:30AM on August 12, 2006, Kenney and his

friend Brian Bollinger left a Newport, Rhode Island bar and walked

down Thames Street on their way to Bollinger's friend's house.   At

about the same time, four Newport police officers, Sergeant John

Barker and Officers Eric Geoghegan, Jason Head, and Stephen Head,1

were on "bar patrol," handling crowd control as the bars in the

downtown Newport area let out for the night; their duties included

keeping the peace and moving the crowds out of the streets to allow

vehicular traffic to pass.

          According to Kenney's testimony, as he and Bollinger

approached the Fifth Element bar, Kenney observed Stephen Head



     1
       To avoid confusion, we refer to both Jason Head and Stephen
Head by their full names.

                                  -2-
issuing a traffic citation to a motorcycle operator, Eric Mendoza.

Kenney      testified     that    Mendoza's     female       passenger       was

hyperventilating and very upset, and that the two people on the

motorcycle motioned for him and Bollinger to approach.               Kenney and

Bollinger went over to Mendoza and conversed with him and his

passenger.     While standing near the motorcycle, Bollinger yelled,

waved his arms, and pointed at the police officers.              Responding,

Jason Head told Kenney and Bollinger to move along, but neither

did.       Because of where the two men and the motorcycle were

positioned, patrons exiting nearby bars were being forced to walk

into the street.        After Bollinger continued to yell and point,

Jason Head physically escorted Bollinger away from the motorcycle,

while Stephen Head provided cover.2

             Kenney   followed   after    Bollinger    and   Jason    Head   and

refused to leave the scene despite requests from the officers.

Jason Head testified that he felt he could not focus on Bollinger

as a result of Kenney's refusal to leave.3            He further testified:




       2
       Kenney disputed Jason Head's testimony, claiming in his own
testimony that it was Stephen Head, and not Jason Head, who told
Kenney and Bollinger to move along and who pulled Bollinger away.
To the extent that the record reflects contradictory testimony from
Jason Head and Kenney, it is the job of the jury to resolve such
factual discrepancies. See, e.g., United States v. Soto-Beníquez,
356 F.3d 1, 44 (1st Cir. 2004) (stating that "[c]redibility
judgments are the province of the jury").
       3
      Kenney does not dispute that the officers asked him to leave
the scene multiple times and in fact testified to that effect.

                                    -3-
          I saw Mr. Kenney coming and approaching from
          the backside, his hands up, his arms around
          his shoulder height and yelling, You can't
          touch him. You can't touch him like that.

          He was right within feet of my brother
          [Stephen Head] and also another officer; and I
          deemed that as a threat, especially after
          several times of warning him to leave, and I
          thought that assault was imminent.

          Jason Head then warned Kenney that if he did not leave,

he would be arrested. According to Jason Head, Kenney still failed

to leave, and it was then that he arrested Kenney for obstructing

a police officer.    Kenney testified that being handcuffed was

painful because he had recently undergone shoulder surgery. Kenney

was transported to the police station in a cruiser.   Subsequently,

the charges against him were dismissed.

          On August 6, 2009, Kenney filed a complaint against

Officers Jason Head and Stephen Head in the United States District

Court for the District of Rhode Island, alleging that the events

surrounding   his   arrest   constituted   a   deprivation   of   his

constitutional rights in violation of 42 U.S.C. § 1983.4      Though

the complaint was "not a model of clarity," Kenney v. Head (Kenney

I), C.A. No. 09-349 ML, 2011 WL 116856, at *1 n.1 (D.R.I. Jan. 13,



     4
       Kenney also sued the City of Newport for violations of
section 1983, alleging that the City carried out unlawful policies
regarding training of police officers and treatment of arrestees.
The district court granted summary judgment for the City on January
13, 2011. Kenney v. Head, C.A. No. 09-349 ML, 2011 WL 116856, at
*3-5 (D.R.I. Jan. 13, 2011). Kenney does not appeal that order,
and we therefore need not address his claims against the City.

                                -4-
2011), the district court construed Kenney's claims against the

officers as "false arrest and improper seizure, excessive force,

conspiracy, assault and battery, malicious prosecution, and false

imprisonment."     Id. at *1.

            The case proceeded to jury trial, which was held on March

15 and 16, 2011.       During the trial, Kenney's counsel sought to

elicit   testimony    from   Mendoza   as    to   statements    that   Officer

Geoghegan allegedly made before Kenney approached Mendoza. Counsel

for the officers objected to the line of questioning as irrelevant

and prejudicial, and the district court sustained the objection on

relevance grounds.     Kenney's counsel then made the following offer

of proof:

            [Mr. Mendoza] would testify that he was
            approached by Officer Geoghegan and that
            Officer Geoghegan told him in an angry manner,
            Put the engine off, and that he then said to
            Mr. Mendoza that if he did that in my town,
            I'd shoot you in the F-ing head.

            At the close of the first day of trial, the district

court granted Stephen Head's motion for judgment as a matter of law

as to all claims, and also partially granted Jason Head's motion

for judgment as a matter of law, sending to the jury only Kenney's

claims   against     Jason   Head   for     false   arrest     and   malicious

prosecution.     Each claim centered around whether Jason Head had

probable cause to arrest Kenney. The district court instructed the

jury "that probable cause exists where the arresting officer,

acting   upon    apparently     trustworthy       information,       reasonably

                                    -5-
concludes that a crime has been committed and that the arrestee is

likely a perpetrator," and further instructed the jury that the

probable cause determination is "based on objective facts and not

the officer's subjective intent." Kenney v. Head (Kenney II), C.A.

No. 09–349 ML, 2011 WL 1791885, at *2 n.3 (D.R.I. May 10, 2011).

The jury returned a verdict for Jason Head on both counts.

          On April 8, 2011, Kenney filed a motion for a new trial,5

arguing that the jury's inability to consider Geoghegan's alleged

statements to Mendoza deprived the jury of the opportunity to

adequately understand the officers' motives in arresting Kenney.

The district court again considered the propriety of admitting the

exchange into evidence and again found the exchange irrelevant to

Kenney's claims under Federal Rule of Evidence 401 and therefore

inadmissible under Rule 402.      Id. at *2.      The district court also

determined   that   even   if   relevant,   the    evidence   was   unduly

prejudicial under Rule 403.      Id.   Thus, the district court denied

the motion for a new trial.      Id. at *3.    Kenney timely appealed.

                            II. Discussion

          Because the basis for Kenney's motion for a new trial is

an evidentiary ruling by the district court, we address his appeal



     5
       The motion was styled as a motion to alter or amend the
judgment pursuant to Federal Rule of Civil Procedure 59(e), but
within the motion, Kenney requested a new trial.    The district
court therefore considered it to be a motion for a new trial
pursuant to Federal Rule of Civil Procedure 59(a), and we do the
same. Kenney II, 2011 WL 1791885, at *1 n.1.

                                   -6-
in that context.          Our review of rulings excluding evidence is for

abuse of discretion.           United States v. Nguyen, 542 F.3d 275, 279

(1st Cir. 2008).             The discretion we accord is broad, "'[i]n

deference to a district court's familiarity with the details of a

case and its greater experience in evidentiary matters . . . .'"

United States ex rel. Loughren v. Unum Group, 613 F.3d 300, 315

(1st Cir. 2010) (quoting Sprint/United Mgmt. Co. v. Mendelsohn, 552

U.S.       379,    384   (2008)).     "'[T]he      district    court   abuses    its

discretion when a relevant factor deserving of significant weight

is overlooked, or when an improper factor is accorded significant

weight, or when the court considers the appropriate mix of factors,

but commits          a   palpable   error    of   judgment    in   calibrating   the

decisional scales.'" Nguyen, 542 F.3d at 281 (quoting United States

v. Roberts, 978 F.2d 17, 21 (1st Cir. 1992)).

                  Kenney argues that the district court improperly excluded

Geoghegan's alleged statements because they were relevant to an

"alternative explanation" for his arrest. Federal Rule of Evidence

401 defines relevant evidence as "evidence having any tendency to

make the existence of any fact that is of consequence to the

determination of the action more probable or less probable than it

would be without the evidence."6             Under Rule 402, "[e]vidence which


       6
       The Federal Rules of Evidence applicable to this case were
all amended effective December 1, 2011; the changes were "intended
to be stylistic only." See Fed. R. Evid. 401 cmt. 2011 Amendments;
Fed. R. Evid. 402 cmt. 2011 Amendments; Fed. R. Evid. 403 cmt. 2011
Amendments.   Here, for each rule, we use the language from the

                                            -7-
is not relevant is not admissible."         Thus, for Kenney to succeed in

demonstrating    relevance,    the   alternative     explanation     for   the

arrest, specifically, that the officer had a "motive for arrest

other than probable cause," must go to a fact of consequence.

          "The question of probable cause . . . is an objective

inquiry," and we do not consider the "'actual motive or thought

process of the officer.'"     Holder v. Town of Sandown, 585 F.3d 500,

504 (1st Cir. 2009) (internal citation omitted) (quoting Bolton v.

Taylor, 367 F.3d 5, 7 (1st Cir. 2004)); see also Whren v. United

States, 517 U.S. 806, 813 (1996) ("Subjective intentions play no

role in ordinary, probable-cause Fourth Amendment analysis.").

Instead of considering any subjective motive of an individual

officer, "we must view the circumstances from the perspective of a

reasonable person in the position of the officer."              Holder, 585

F.3d at 504.    This standard is consistent with the manner in which

the district court instructed the jury before it made its finding

of probable cause.      Thus, the jury would not have been able to

consider any "alternative explanation" for arrest had it been

offered into evidence.

          Even    if   it   were   proper    for   the   jury   to   consider

subjective motive, the relevance of an alternative motive argument

is especially weak where, as here, the facts pertaining to the



version that was in force at the time of the district court's
rulings.

                                     -8-
alleged alternative motive are divorced from the set of facts from

which the jury would likely determine probable cause.7            As the

district     court   correctly   pointed   out,    Kenney's   arrest   for

obstruction, and his consequent action under section 1983, arose

out of a temporally distinct set of facts from those having to do

with the alleged exchange between Geoghegan and Mendoza, with

completely different people taking part.          The district court ably

explained:

           Testimony regarding the dialogue between
           Officer Geoghegan and Mendoza would not
           elucidate the objective facts surrounding
           Kenney's arrest for obstructing the officers
           while they detained Bollinger.        Kenney's
           arrest centered around his interactions with
           officers Jason Head and Stephen Head while
           they detained Bollinger. The probable cause
           determination for that arrest bears no direct
           relationship   to   Mendoza   and  Geoghegan's
           alleged interaction.     Consequently, it was
           irrelevant what Officer Geoghegan, a non-party
           police officer, said to Mendoza, a non-party
           witness, prior to Bollinger being detained and
           Kenney being arrested.        Nothing in the
           interaction would have a tendency to make the
           existence of any fact relating the issue of
           probable cause for Kenney's arrest more or
           less probable.

Kenney II, 2011 WL 1791885, at *2.       This proper analysis in no way

constituted an abuse of discretion, as the district court weighed




     7
       Even assuming an alternative motive argument were relevant
and proper for the jury's consideration, the jury was in fact told
of an altercation between the officers and Mendoza; the only
evidence excluded was the particular foul language that Geoghegan
allegedly employed.

                                   -9-
appropriate factors in a competent manner. See Nguyen, 542 F.3d at

281.

            Further, in a probable cause determination, the "only

relevant facts are those known to the officer."             Holder, 585 F.3d

at 504.     There is no evidence in the record that the arresting

officer, Jason Head, had any knowledge of the alleged exchange

between Geoghegan and Mendoza, and it is therefore irrelevant to

the probable cause determination.

            In his reply brief, Kenney restructures his objection to

the exclusion of the evidence, stating that he sought the admission

of Geoghegan's alleged statement in order to show "bias in the

testimony of [Jason Head] and his fellow officers in order to cast

doubt on their testimony."          However, none of Kenney's previous

filings before the district court or on appeal even hinted at this

argument; the word "bias" appears nowhere in his opening brief, nor

in his memorandum attached to the motion for a new trial that was

submitted   to the     district court.       We therefore      consider     any

argument pertaining to bias to be a new one, and thus waived.               See

Martinez-Burgos v. Guayama Corp., 656 F.3d 7, 10 (1st Cir. 2011)

("Arguments   raised    for   the   first   time   in   a   reply   brief   are

waived.") (quoting United States v. Vanvliet, 542 F.3d 259, 265 n.3

(1st Cir. 2008)); United States v. DeSimone, 488 F.3d 561, 570 (1st

Cir. 2007) ("The failure of counsel to have informed the trial

court of the correct evidentiary theory under which evidence is


                                    -10-
sought to be admitted is ordinarily a waiver of the right to argue

that theory on appeal.").         In "exceptional circumstances," such

waived arguments may be reviewed for plain error.           DeSimone, 488

F.3d at 570.

           While it is true that "[p]roof of bias is almost always

relevant because the jury, as finder of fact and weigher of

credibility, has historically been entitled to assess all evidence

which   might   bear   on   the   accuracy   and   truth   of   a   witness'

testimony," United States v. Abel, 469 U.S. 45, 52 (1984), Kenney

cannot here overcome the plain error standard.         Kenney's argument

regarding why or how the officers showed bias against him is both

extremely tenuous and undeveloped in his reply brief. The district

court's decision to exclude Geoghegan's alleged statement does not

come close to constituting plain error.       See DeSimone, 488 F.3d at

570 (holding that the exclusion of evidence rises to the level of

plain error only where the ruling was "not only wrong but went to

the fairness, integrity and public reputation of the trial.").

           Alternatively, even if there were some argument that

Geoghegan's alleged statement was relevant, the district judge

found that Federal Rule of Evidence 403 barred its admission. Rule

403 allows for the exclusion of otherwise relevant evidence "if its

probative value is substantially outweighed by the danger of unfair

prejudice, confusion of the issues, or misleading the jury . . . ."

The district court determined that the admission of Geoghegan's


                                    -11-
alleged   statement       would   be   unduly   prejudicial,      as    it   risked

"confusing the issues and misleading the jury as to the matter

before it, namely the probable cause determination for [Kenney's]

arrest on an obstruction charge."             Kenney II, 2011 WL 1791885, at

*2.       As     "Rule    403     judgments     are   typically        battlefield

determinations, and great deference is owed to the trial court's

superior coign of vantage," we reverse a district court's 403

ruling only "in extraordinarily compelling circumstances." United

States v. Bunchan, 580 F.3d 66, 71 (1st Cir. 2009) (internal

quotation marks and citations omitted); see also Sprint, 552 U.S.

at 384 (the "wide discretion" accorded to district court for

evidentiary rulings is particularly important with respect to Rule

403 determinations). Especially because we agree with the district

court that there was no probative value to the proffered evidence,

the district court did not err in its determination that the

admission of Officer Geoghegan's alleged statement would have been

unduly prejudicial.

               As there was no error in the district court's evidentiary

ruling about which Kenney complains,8 we find no reason to reverse

for a new trial.         See Astro-Med, Inc. v. Nihon Kohden Am., Inc.,

591 F.3d 1, 13 (1st Cir. 2009) ("We reverse only if 'the verdict is


      8
       Kenney originally argued that certain statements made by
Jason Head's counsel in his closing argument also constituted
error.   However, Kenney's counsel abandoned this claim at oral
argument, noting that it was "not an appealable issue"; therefore,
we need not address it.

                                       -12-
so seriously mistaken, so clearly against the law or the evidence,

as to constitute a miscarriage of justice.'") (quoting Levesque v.

Anchor Motor Freight, Inc., 832 F.2d 702, 703 (1st Cir. 1987)).

                         III. Conclusion

          We affirm the district court's denial of the motion for

a new trial.




                               -13-
