    09-2060-pr
    Sims v. Blot



                        UNITED STATES COURT OF APPEALS
                            FOR THE SECOND CIRCUIT

                               SUMMARY ORDER
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         At a stated term of the United States Court of                  Appeals
    for the Second Circuit, held at the Daniel Patrick                  Moynihan
    United States Courthouse, 500 Pearl Street, in the                  City of
    New York, on the 25 th day of November, two thousand                nine.

    PRESENT: DENNIS JACOBS,
                           Chief Judge,
             AMALYA L. KEARSE,
                           Circuit Judge
             PAUL G. GARDEPHE, *
                           District Judge.
    __________________________________________

    Nathaniel Sims,

                   Plaintiff-Appellant,

                   v.                                      09-2060-pr

    Mike J. Blot, Correctional Officer, Francisco Caraballo,
    Correctional Officer,

             Defendants-Appellees.
    __________________________________________



             *
          Paul G. Gardephe, Judge of the United States District
    Court for the Southern District of New York, sitting by
    designation.
APPEARING FOR APPELLANT:           Antony L. Ryan, MARC J.
                                   KHADPE, Cravath Swain &
                                   Moore LLP, New York, NY.

APPEARING FOR APPELLEES:           SASHA SAMBERG-CHAMPION,
                                   Barbara D. Underwood,
                                   Michael S. Belohlavek,
                                   Robert C. Weisz (Andrew M.
                                   Cuomo on the brief), Office
                                   of the Attorney General,
                                   New York, NY.

    Appeal from a judgment of the United States District

Court for the Southern District of New York (Preska, J.).

    UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court be

AFFIRMED.

    Plaintiff Nathaniel Sims, an inmate in Sing Sing

Correctional Facility, appeals from a judgment of the United

States District Court for the Southern District of New York

(Preska, J.), entered on April 14, 2009 after a jury

verdict.    We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and

the issues on appeal.

    This action under 42 U.S.C. § 1983 arises out of an

altercation between Sims and the defendant-appellees, both

guards at the prison.    The jury found for the defendants.

On appeal, plaintiff seeks vacatur and a new trial, arguing


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there were improper jury instructions and that evidence was

improperly admitted.

    The propriety of jury instructions is a question of law

that we review de novo.    United States v. Wilkerson, 361

F.3d 717, 732 (2d Cir. 2004).

    Sims objected at trial to the following jury

instruction:

    If you find that any witness has willfully testified
    falsely as to any material matter, you have the right
    to reject the testimony of that witness in its
    entirety. On the other hand, even if you find that a
    witness has testified falsely or inaccurately about one
    matter, you may reject as false or inaccurate that
    portion of his or her testimony and accept as true any
    other portion of his or her testimony.


    It was not in error for the judge to give this

instruction to the jury.    This Court has never held that

giving this instruction constitutes error.    See United

States v. James, 239 F.3d 120, 122 n.2 (2d Cir. 2000) (“In

this case we need not pass upon the merits of giving or not

giving a falsus in uno instruction.”).    As the district

court made it clear that the jury may--but need not--

evaluate testimony on the basis of material falsehoods, the

instruction was not given in error.

    Sims challenges a second instruction: that his status

as a convicted felon of a crime punishable by more than one

                                3
year in prison could be considered for the--expressly

limited--purpose of evaluating his credibility as a witness.

    This instruction fits within commonly accepted

practices and did not mislead the jury as to the proper

legal standard; therefore, it was not in error.    See Fed. R.

Evid. 609 (such evidence is admissible for impeachment);

see also United States v. Corcione, 592 F.2d 111, 116 (2d

Cir. 1979) (upholding an instruction on examining felon

witnesses’ testimony more closely based in part on their

status as criminals); 4 Leonard B. Sand, et al., Modern

Federal Jury Instructions-Civil, § 76-6 (2009) (giving

similar model jury instruction).

    Plaintiff argues that evidence of his prior bad acts in

prison was used, in violation of Federal Rule of Evidence

404(a), to demonstrate propensity.   Fed. R. Evid. 404(a);

see Hynes v. Coughlin, 79 F.3d 285 (2d. Cir. 1996).     Under

Federal Rule of Evidence 404, prior bad acts are

inadmissible to establish character and “action in

conformity therewith on a particular occasion,” Fed. R.

Evid. 404(a); but they may be used “for other purposes, such

as proof of motive, opportunity, intent, preparation, plan,

knowledge, identity, or absence of mistake or accident.”

Fed. R. Evid. 404(b).

                             4
    The admission of prior bad acts evidence is reviewed

for abuse of discretion.     United States v. Lombardozzi, 491

F.3d 61, 78-79 (2d Cir. 2007).      Discretion is abused “only

if the judge acted in an arbitrary and irrational manner.”

Id. at 79.   “This Court reviews 404(b) evidence under an

inclusionary approach and allows evidence for any purpose

other than to show a defendant’s criminal propensity." Id.

at 78 (internal quotation marks omitted).

    The evidence of Sims’s prison conduct was admissible

under 404(b), primarily under the “proof of motive”

exception.   Fed. R. Evid. 404(b).     Sims repeatedly stated in

his testimony that the defendants had a grudge against him

due to his bad conduct, and that this grudge was their

motive for assaulting him.     Most of the disputed testimony

goes to the motive that plaintiff attempts to establish;

some of this testimony was even elicited by plaintiff’s

counsel or clarified points from plaintiff’s examination.

Defendants referred to Sims’s misconduct but did not dwell

on it; to the contrary, they denied that his behavior was

unusual for his prison unit in order to rebut Sims’s

contention that his misconduct was a motive for an assault

by the guards.



                                5
    There was another reference to prior bad acts.     On

direct, plaintiff claimed he had a medical condition that

limited his ability to turn around suddenly, and was,

therefore, unlikely to have whirled around to attack one of

the guards, as the guards testified.     Cross examination

elicited from Sims that he had twice--after the onset of his

condition--been disciplined for assaulting staff.     Even

assuming arguendo that such testimony was admitted in error,

the error would be harmless.     The entire exchange consisted

of nine lines of trial testimony; those disciplinary

violations were never mentioned again; and the questions as

framed were relevant to Sims’s injury rather than to

propensity.     As the controversial testimony was so minor in

comparison with the evidence supporting the prison guards’

account, it seems clear that this disputed evidence did not

“substantially influence the jury,” and so, even if the

testimony was admitted in error, any error was harmless.

Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996).

    Plaintiff challenges references made to his presence in

the Psychiatric Satellite Unit.     However, the point was

relevant.     The defendants argued that Sims provoked a fight

knowing that, per standard procedure, he would then be

returned to the more relaxed regime of the Psychiatric

                                6
Satellite Unit.   It does not appear that the testimony

focused on Sims’s psychiatric history (if any); the

references in the closing argument were related to the

defendants’ theory of motive.       The district court appears to

have weighed the prejudice against probative value, as

required; it was not in error in admitting this evidence.

United States v. Salameh, 152 F.3d 88, 110 (2d. Cir. 1998).

    We have considered the remainder of Sims’s arguments

and find them to be without merit. For the foregoing

reasons, the judgment of the district court is hereby

AFFIRMED.


                            FOR THE COURT:
                            Catherine O’Hagan Wolfe, Clerk

                            By:__________________________




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