
USCA1 Opinion

	




                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ____________________        No. 92-1703                                WALTER DEARY, ET AL.,                                Plaintiffs, Appellees,                                          v.                             CITY OF GLOUCESTER, ET AL.,                                Defendants, Appellees,                                      _________                                     JOHN BICHAO,                                Defendant, Appellant.                                _____________________        No. 92-1777                                WALTER DEARY, ET AL.,                               Plaintiffs, Appellants,                                          v.                             CITY OF GLOUCESTER, ET AL.,                                Defendants, Appellees.                                 ____________________                    APPEALS FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Joseph L. Tauro, U.S. District Judge]                                            ___________________                                 ____________________                                        Before                           Boudin and Stahl, Circuit Judges,                                             ______________                             and Fuste,* District Judge.                                         ______________                                 ____________________            Leonard  H.  Kesten  with whom  Thomas  M.  Elcock  and  Morrison,            ___________________             __________________       _________        Mahoney &  Miller were on  brief for John Bichao,  City of Gloucester,        _________________        David A.  Reardon, Howard Maki, John Beaudette,  Harold Reardon, James        Hubbard and Chief Earland Whortley.            Edmund M. Pitts with whom  Edmund R. Pitts and  Pitts & Pitts were            _______________            _______________      _____________        on brief for Walter Deary.                                 ____________________                                  November 17, 1993                                 ____________________        _____________________        *Of the District of Puerto Rico, sitting by designation.                    FUSTE, District Judge.   This  appeal  arises   from  a                    FUSTE, District Judge.                           ______________          police  misconduct  action  brought under  42  U.S.C.    1983 and          Massachusetts law.  Defendant John Bichao appeals contending that          (1) bias on the part of the trial  judge denied him a fair trial;          (2) evidence regarding a prior disciplinary action against one of          the witnesses was  incorrectly admitted; and (3)  attorneys' fees          were  erroneously granted to plaintiffs' attorneys.  We affirm on          all grounds.                                          I.                                          I.                                      Background                                      Background                                      __________                    Walter  Deary  and  his  brother  Robert  brought  suit          against  six Gloucester police officers,  the Mayor, the Chief of          Police, and  the City of  Gloucester, based on an  incident which          occurred  on  March 29,  1986.1    The  Dearys alleged  that  the          defendant police officers physically  assaulted them and  engaged          in  a cover-up  regarding the  incident.   After  the plaintiffs'          case,  the  court  directed  verdicts  for  each  of  the  police          officers, except  Officer Bichao.2   The main  issue in  the case          was an allegation  that Officer Bichao kicked  Walter Deary twice          in  the  head.    The   jury  awarded  Walter  Deary  $25,000  in                                        ____________________               1The claims  against the city,  the Mayor, and the  Chief of          Police  were  bifurcated  from   those  against  the   individual          officers.               2Plaintiffs  filed a cross-appeal  requesting that if  a new          trial were granted  to Defendant Bichao,  then this court  should          also  reverse the directed verdicts granted to defendants Earland          Whortley,  David  Reardon, Howard  Maki,  John  Beaudette, Harold          Reardon, and James Hubbard, the other Gloucester police officers.          Because  we affirm,  we  do  not  reach  plaintiffs'  alternative          request.                                         -2-                                          2          compensatory damages and  $75,000 in punitive damages,  and found          for Bichao  on the  claims brought  by Robert  Deary.   The court          granted $112,295 in attorneys' fees and $8,977.50 in costs to the          plaintiffs' attorneys under 42 U.S.C.   1988.                                         II.                                         II.                                      Discussion                                      Discussion                                      __________          A.  Allegations of Bias of Trial Judge          A.  Allegations of Bias of Trial Judge              __________________________________                    Officer  Bichao requests a new trial, alleging that the          trial judge  was so biased  towards the plaintiffs as  to deprive          the defendant of  a fair trial.  Bichao  lists numerous incidents          during the trial which he contends were indicative of the bias of          the judge.   These events may be  divided into three types:   (1)          claims that the  judge made comments indicating  that defendant's          counsel was  proceeding too slowly;  (2) claims that  the judge's          questioning  of witnesses reflected  bias and partiality  for the          plaintiffs;   (3)   allegations    regarding   disputes   between          defendant's counsel and the judge,  which Bichao claims created a          prejudicial effect against the defendant.                      Bias  and improper  conduct  by a  trial  judge may  be          grounds for a  new trial if a party is so seriously prejudiced as          to be deprived  of a  fair trial.   Aggarwal v.  Ponce School  of                                              _____________________________          Medicine,  837 F.2d  17, 21-22  (1st Cir.  1988).   However, mere          ________          active participation by the  judge does not create prejudice  nor          deprive  the party  of a  fair trial.   Id.   On appeal,  we must                                                  ___          "consider isolated incidents in light of the entire transcript so          as to 'guard  against magnification on appeal  of instances which                                         -3-                                          3          were of  little importance  in their setting'."   Aggarwal  at 22                                                            ________          (quoting Glasser v. United States, 315 U.S. 60 (1984)).                   ________________________                    Bichao cites  several instances during the  trial where          Judge  Tauro encouraged defense  counsel to  advance the  pace of          questioning, or  was  unsatisfied with  counsel's utilization  of          time.   The trial  judge has discretion  to maintain the  pace of          trial,  and indeed "has the responsibility to oversee the conduct          of  a trial so  that it moves expeditiously".   Desjardins v. Van                                                          _________________          Buren  Community Hosp.,  969  F.2d  1280,  1281 (1st  Cir.  1992)          ______________________          (noting that requests by the judge that counsel not be repetitive          are  "routine").  Therefore, encouraging counsel to move forward,          forbidding  counsel  from  eliciting  duplicative  testimony,  or          halting  what the  court perceived  to be  a waste  of time,  was          firmly within the discretion of the trial judge.                    Next,  Bichao alleges  that the  trial  judge exhibited          bias  towards the  plaintiffs  by  interjecting questions  during          defense  counsel's   direct  and  cross-examination   of  several          witnesses,  including  Bichao   himself.    The  court   has  the          prerogative to interrogate witnesses, and the duty to do so where          necessary to  clarify testimony, but  the judge must  maintain an          air of impartiality.   United States v. Paz Uribe,  891 F.2d 396,                                 __________________________          400  (1st Cir. 1989), cert. denied,  495 U.S. 951 (1990).  "Trial                                _____ ______          judges are  constantly making judgments  about . . . the  need to          clarify witness answers, and similar matters of trial management.          In this realm, the widest possible latitude is given to the judge                                         -4-                                          4          on the scene."   Rodr guez v. Banco  Cent. Corp., 990 F.2d  7, 13                           _______________________________          (1st Cir. 1993).                    Bichao  argues  that  the judge's  questioning  of  the          plaintiff's  medical   expert,  Dr.  Starr,   undermined  defense          counsel's credibility, and reflected bias by the judge.  A review          of the transcript reveals  that the judge's questions  were meant          to   clarify  the  testimony  of  the  witness.    During  cross-          examination, Dr. Starr had discussed  a number of documents which          the jury  did not have  in front of them.   The court  asked some          questions  in order  to elucidate  which  document the  questions          referred  to,  and  which  section  of  the  report  counsel  was          discussing.  These  questions were clearly within  the discretion          of the trial court.                      Bichao  also contends that the court was overzealous in          its  questioning of  Officers Maki  and  Beaudette during  direct          examination, and as a result destroyed the credibility of the two          witnesses.   Officer  Maki  was  the person  who  was closest  in          physical proximity  to Walter  Deary  when the  alleged kicks  by          Bichao were administered.   The judge questioned him  in order to          clarify Maki's statement about his lack of memory of the kicking.          This issue  was central  to the  case, and  the judge  was acting          within his discretion to ensure that Maki's  testimony was clear.          Similarly,  the  court's  questioning of  Officer  Beaudette  was          unbiased and aimed at illuminating his testimony.                    Bichao  claims that when he was being cross-examined by          plaintiff's counsel,  the judge  made uncivil  remarks and  asked                                         -5-                                          5          hostile questions of him.   A close examination of the transcript          reveals that  the judge  occasionally instructed  the witness  to          answer  the  questions which  were  presented to  him,  and asked          questions  to elucidate Bichao's testimony.  These directions and          questions did  not rise  to the level  of partiality,  but rather          were made with the purpose  of obtaining answers to the questions          posed and clarifying the answers given.                         Finally,  Bichao identifies  several  exchanges in  the          transcript which he claims reflect a certain amount of  animosity          between the judge  and defense counsel.  Some  of these incidents          occurred outside of the hearing of the jury, where they could not          have influenced the  jury decision.  However, Bichao  points to a          sidebar  conference during which  the judge stated  that he found          defense counsel's cross-examination  of the medical expert  to be          "very devious".   At the time, the  judge asked the  jury whether          they could hear the sidebar  conference and one juror stated that          he was able to hear  "a little bit".  This episode,  taken in the          context  of  a   nine-day  trial,  does  not   warrant  appellate          intervention.   When  the judge  questioned the  jury about  this          incident, only one of the eight members stated that he could hear          a  little bit  of  the conference.   It  is  unclear whether  the          "devious" comment itself  was overheard by that one  juror.  Even          assuming that the one juror did hear the statement, we find that,          viewing  the  trial  transcript  as  a   whole,  the  comment  is          insufficient  to sustain  a finding of  bias on  the part  of the          trial judge, or prejudicial impact on the trial.       T r i a l                                         -6-                                          6          judges  need to maintain strict control over judicial proceedings          and as  a result it would  be unrealistic to suggest  that trials          should always be models of harmony.  Although any display  by the          trial  judge  of unwarranted  irritation or  displeasure directed          towards counsel ought to  be avoided, friction between the  court          and  counsel  does not  constitute  pervasive bias.    See Arthur                                                                 ___ ______          Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839  (7th Cir.          ___________________________________          1989);  Hamm v. Board  of Regents, 708  F.2d 647,  650 (11th Cir.                  _________________________          1983).                    Bichao contends that the judge  failed to give the jury          general  or specific curative instructions regarding any of these          incidents.  But defendant failed to request any specific curative          instructions  during the course  of the trial.   Furthermore, the          jury charge instructed the jurors that they were the "sole judges          of the weight  and effect of  all of the  evidence" and that  the          evidence in the case  did not include statements of the  judge or          counsel.  The defendant was not prejudiced by any conduct of  the          trial judge, and a new trial is not warranted.          B.  Evidence of Disciplinary Action          B.  Evidence of Disciplinary Action              _______________________________                    During the  cross-examination of  Officer Reardon,  who          was the  commander on duty on  the night of the  alleged assault,          the plaintiffs'  attorney questioned Reardon about the reputation          for truthfulness of Officer Maki.  When Reardon responded that he          had  never  known Maki  to be  untruthful, counsel  asked whether          Reardon was  aware of an  incident in which Maki  was disciplined          after he was untruthful when  filing an overtime report.  Reardon                                         -7-                                          7          denied knowledge of  the event.  Plaintiffs'  counsel then called          Officer  Maki  back  to  the  stand  for  rebuttal testimony  and          questioned him  about the  incident.  Maki  admitted that  it had          happened, and  documents regarding  the event  were then  allowed          into evidence.   Maki  explained his version  of the  incident on          cross-examination  by  defense  counsel.    Bichao  contends that          allowing evidence  of this  event was erroneous  for a  number of          reasons.                      First, Bichao argues  that it was improper  to question          Reardon about his  opinion of Maki's reputation  for truthfulness          because  Maki's character  had not  been  put into  issue by  the          defense.  Under  Fed.  R.  Evid. 608,  evidence  of  the truthful          character of  a  witness is  only admissible  after the  witness'          character  has been  attacked,  but  there  is  no  corresponding          limitation  on introducing evidence about the untruthfulness of a          witness.3  Officer  Maki was the officer who  was located closest                                        ____________________               3Federal Rule of Evidence 608 provides:                      (a)  The credibility  of  a  witness  may  be                    attacked or supported by evidence in the form                    of  opinion  or  reputation,  but subject  to                    these limitations: (1) the evidence may refer                    only   to  character   for  truthfulness   or                    untruthfulness, and (2)  evidence of truthful                    character  is   admissible  only   after  the                    character of the witness for truthfulness has                    been  attacked   by  opinion   or  reputation                    evidence or otherwise.                      (b) Specific  instances of  the conduct  of a                    witness, for  the  purpose  of  attacking  or                    supporting  the  witness'  credibility, other                    than conviction  of crime as provided in rule                    609, may not be proved by extrinsic evidence.                    They may,  however, in the discretion  of the                                         -8-                                          8          to Officer Bichao  when the alleged kicks to  Walter Deary's head          took place.   His testimony about  the arrest was crucial  to the          trial.  By testifying to the events  of the night in question, he          put his  credibility  into issue.   Questions  to his  supervisor          regarding the supervisor's opinion of Officer Maki's truthfulness          were clearly proper.                      Bichao  also contends  that the disciplinary  event was          too  remote  in  time to  allow  cross-examination  regarding the          suspension.   When a witness has testified as to the character of          another  witness, Fed.  R.  Evid.  608(b)  allows  inquiry  about          specific  instances of conduct concerning the truthfulness of the          principal witness.  Although the time which has elapsed since the          prior  bad act  is a  consideration for  the judge  to take  into          account  when  determining   whether  to  admit   such  character          evidence, close proximity  in time is not required  under Fed. R.          Evid. 608(b).  United States v. McClintic, 570 F.2d 685 (8th Cir.                         __________________________          1978).  The  incident involving Maki occurred ten  years prior to          the trial.   The discipline  resulted from the fact  that Officer          Maki was untruthful in filing an overtime report.   It was within          the discretion of the trial judge to allow plaintiffs' counsel to                                        ____________________                    court,  if   probative  of   truthfulness  or                    untruthfulness,  be inquired  into on  cross-                    examination of the witness (1) concerning the                    witness'   character   for   truthfulness  or                    untruthfulness,   or   (2)   concerning   the                    character for truthfulness  or untruthfulness                    of another witness as to which  character the                    witness being cross-examined has testified.                                           -9-                                          9          question Officer Reardon about his knowledge of this event, since          the incident was relevant to Officer Maki's credibility.                    Next,  Bichao argues that the admission of the rebuttal          testimony of  Maki and the  documents regarding the event  was an          error  because  each  constituted  extrinsic  evidence   used  to          controvert Officer  Reardon's denial of  knowledge regarding  the          disciplinary  incident, in  violation of  Fed.  R. Evid.  608(b).          While  we agree  that  the  rebuttal testimony  of  Maki and  the          documents  should not have been admitted, we find the error to be          harmless for the reasons enumerated below.                    Fed.  R.  Evid.  608  prohibits   the  introduction  of          extrinsic evidence to  prove specific instances of the conduct of          a witness for the purpose of attacking or supporting the witness'          credibility.   Therefore, although  a witness  can be  questioned          about particular events, once the witness  has denied or admitted          knowledge of  the occurrence  on cross-examination,  the examiner          must accept the answer given by the witness.  U.S. v. Tejada, 886                                                        ______________          F.2d  483,  488 (1st  Cir.  1989).   The  purpose of  the  ban on          extrinsic evidence is "to avoid holding mini-trials on irrelevant          or collateral matters".  United  States v. Beauchamp, 986 F.2d 1,                                   ___________________________          3 n.1 (1st Cir. 1993).   Here, plaintiffs' recall of Officer Maki          on rebuttal was an unnecessary foray, resulting in a waste of the          court's time.   Officer Reardon stated on  cross-examination that          he had no knowledge of the  disciplinary action involving Officer          Maki.   Questioning about the  event should have been  stopped at          that juncture.  Under Fed. R. Evid. 608(b), plaintiffs could have                                         -10-                                          10          questioned  Maki  about  the disciplinary  suspension  during his          original  testimony, since it  was probative of  Maki's character          for truthfulness  or untruthfulness.   However,  such questioning          would not  have involved the  time expended in recalling  Maki to          the  stand, and  therefore the  original  admissibility does  not          render  the  rebuttal  questioning  acceptable.    The  documents          regarding  the  disciplinary  event  provided  further  extrinsic          evidence  of the suspension.   As such, they  would not even have          been  admissible during Maki's original testimony, and should not          have been allowed during rebuttal.                    Although Maki's  rebuttal testimony  and the  documents          regarding the suspension should not have been admitted under Fed.          R.  Evid.  608,  we  find  that the  error  was  harmless.    "In          determining whether  or not the  error was harmless,  a reviewing          court must assess the record as a whole to determine the probable          impact of the improper evidence upon the  jury.  United States v.                                                           ________________          Mateos-Sanchez, 864 F.2d 232, 237  (1st Cir. 1988) (citing United          ______________                                             ______          States  v.  Currier,  821 F.2d  52,  56  (1st  Cir.  1987).    In          ___________________          determining    whether   evidence    erroneously   admitted    in          contravention of  Fed. R. Evid.  608 was harmful, this  court has          examined such factors as whether the admission allowed completely          new evidence before the jury,  and whether the disputed  evidence          was likely to arouse undue passion or prejudice to the jury.  Id.                                                                        __          In  this case, during  the cross-examination of  Officer Reardon,          plaintiffs' counsel raised  the possibility in front of  the jury          that Officer Maki  may have been involved  in an incident  on the                                         -11-                                          11          police   force  where  his  truthfulness  was  questioned.    The          information about the event, while probative of untruthfulness of          one of  the witnesses, was not likely  to unduly inflame the jury          against  the defense.   Furthermore, but for  counsel's omission,          the disciplinary  action would have been brought out when Officer          Maki was initially testifying in  the case.  In addition, Officer          Maki had  an  opportunity  to  explain  the  incident  on  cross-          examination during rebuttal.  The  error is insufficient to merit          reversal.           C.  Attorneys' fees          C.  Attorneys' fees              _______________                    Finally, appellant  challenges the award  of attorneys'          fees to  plaintiffs' attorneys  granted under  42 U.S.C.    1988.          Bichao claims that the records  submitted by the lawyers were not          contemporaneous and that the billing rate requested was inflated,          and seeks a reduction  of the fee award to reflect  the fact that          only  one of  the  plaintiffs  prevailed on  one  of the  claims.          District courts  have discretion  in awarding  fees and  costs in          civil rights  cases, but  must carry out  more than  a conclusory          examination of  the hours  and rates  requested.   Grendel's Den,                                                             ______________          Inc. v.  Larkin, 749 F.2d  945, 950 (1st  Cir. 1984).   Normally,          _______________          appellate  courts should "defer  to any thoughtful  rationale and          decision developed  by a  trial court  and . . . avoid  extensive          second guessing."  Id.                             __                    In order to recover fees, attorneys  must submit a full          and  precise  accounting   of  their  time,  including   specific          information about number  of hours, dates, and the  nature of the                                         -12-                                          12          work performed.   Calhoun v. Acme Cleveland Corp.,  801 F.2d 558,                            _______________________________          560 (1st  Cir. 1986).   If such  documentation is  not submitted,          fees should be reduced or even denied altogether.  Grendel's Den,                                                             _____________          749  F.2d at  952.   Here, Judge  Tauro noted that  the attorneys          submitted  all of  this information,  and found that  the records          were "essentially contemporaneous and . . . reliable".   Deary v.                                                                   ________          Gloucester,  789 F.Supp.  61, 64  (D.Mass  1992).   The attorneys          __________          submitted  affidavits,  as   well  as  the  actual   time  slips.          Following the  admonition in  Grendel's Den,  the district  court                                        _____________          deducted hours  from the total  requested where the  records were          not sufficiently precise or were not in chronological  order, and          where the  time slips  failed to  correspond with the  attorney's          affidavit.  The court denied seventy-eight hours out of the 699.4          hours requested.                    The district court  must also make a finding  as to the          prevailing   market  rate,  based  on  evidence  other  than  the          attorneys' affidavits.  Bordanaro v.  McLeod, 871 F.2d 1151, 1168                                  ____________________          (1st Cir. 1989), cert.  denied, 493 U.S. 820  (1989).  The  judge                           _____________          here  noted that counsel  submitted affidavits from  other Boston          attorneys regarding fees in similar cases, as well as information          about  billing  rates for  Massachusetts  law firms.    The court          examined this information,  as well as the  attorneys' experience          levels  in  assessing  the  correct  hourly  billing  rate.    In          addition,  the  court  awarded  lower  hourly  rates  than  those          requested for pretrial  work performed by counsel.   Finally, the          court detailed its reasoning for refusing a reduction in fees due                                         -13-                                          13          to  the fact  that  only  one of  the  plaintiffs was  successful          against  one defendant and for refusing  a request by plaintiffs'          counsel for a risk factor enhancement of  fees.  We find that the          district  court  more  than  adequately  analyzed  the  issue  of          attorneys' fees,  and explained its  reasoning for the  amount of          fees granted.                                           III.                                         III.                                      Conclusion                                      Conclusion                                      __________                    In sum, we affirm the holding below.  The judge did not          display  actionable bias  against the  defendant.   Although  the          evidence regarding  Officer  Maki's  suspension  was  incorrectly          admitted  under Fed. R. Evid.  608 through the rebuttal testimony          of  Officer Maki,  the error  was harmless.   The  district court          appropriately detailed its  reasoning in granting  the attorneys'          fees and costs,  and the award will  not be disturbed  on appeal.          Affirmed.          Affirmed.          _________                                         -14-                                          14
