254 F.3d 156 (D.C. Cir. 2001)
Andrew M. Fredrick, et al., Appelleesv.District of Columbia, Appellant
No. 99-7229
United States Court of Appeals  FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 15, 2001Decided June 26, 2001

Appeal from the United States District Court  for the District of Columbia (96cv02093)
Carl J. Schifferle, Assistant Corporation Counsel, argued  the cause for appellant.  With him on the briefs were Robert  R. Rigsby, Corporation Counsel, and Charles L. Reischel,  Deputy Corporation Counsel.  Lutz A. Prager, Assistant  Deputy Corporation Counsel, entered an appearance.
Janet R. Cooper argued the cause and filed the brief for  appellees.
Before:  Henderson, Randolph and Garland, Circuit  Judges.
Opinion for the Court filed by Circuit Judge Randolph.
Randolph, Circuit Judge:


1
Andrew M. Fredrick, Stephen  Bias and Michael J. Hairston sued the District of Columbia,  alleging that the District had discriminated against black  employees of the Metropolitan Police Department, in violation  of Title VII, 42 U.S.C.   2000e et seq., and 42 U.S.C.   1981. The first trial ended in a hung jury.  After a second trial held  in May 1999, the jury found the District liable for discrimination and awarded damages, $100,000 for Fredrick, $60,000 for  Bias and $30,000 for Hairston.  The District contends that it  is entitled to a new trial because the district court erroneously admitted evidence and because the evidence introduced in  the trial was insufficient to support the jury's verdict.

I.

2
The contested evidence consisted of an excerpt of Monique  Blasio's testimony from the first trial which the court admitted at the second trial because Blasio was unavailable.  Blasio, a black member of the Metropolitan Police Department,  testified as follows.  While she was assigned to the Second  District vice unit in 1992, she went to see Lieutenant Knieser--a white officer--to express interest in an assignment to  the detectives unit.  During this meeting, she suggested to  Knieser that the dearth of female promotions to detective was  "a gender issue."  One day later she was reassigned to the  tactical unit.  Blasio filed a grievance in 1993 or 1994 complaining of her reassignment.  The "white officers" in the  tactical unit considered her a "snitch."  At one roll call, Blasio  asked those members of the tactical unit who were gossiping  about her to not do so behind her back.  This prompted  Officer Chagnon to throw something and to attempt to draw  her into a fight. Blasio testified that Sergeant Vincent, the  head of the tactical unit, sent her to see Lieutenant Knieser.  At the same time, Sergeant Vincent permitted Officer Chagnon to report for duty as usual.


3
Blasio testified that Lieutenant Knieser took her statement, but made no audible response to her question:  "How  can you effectively do an investigation on me when you so  [sic] biased?"  Blasio said that "from that point on they just  kept bringing me in for questioning, having me write all kinds  of statements."  She said she was later transferred to another  police district.


4
The District contends that Blasio's testimony regarding the  physical confrontation with Officer Chagnon was either irrelevant or unfairly prejudicial.  Relevant evidence is "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."  Fed. R. Evid. 401;  see United States v. Crowder,  141 F.3d 1202, 1206, 1209 (D.C. Cir. 1998) (en banc).  The  argument in favor of relevancy is as follows.  Fredrick,  Hairston and Bias were assigned to the Second District. They alleged that they were denied opportunities to advance  to the vice and detective units, partly because Lieutenant  Knieser discriminated against them.  In terms of Rule 401,  the fact of consequence here was Lieutenant Knieser's hampering Fredrick's and his co-plaintiffs' employment prospects  because of their race.  Evidence that Knieser had conducted  his other duties, such as the investigation of a confrontation  between a black and a white police officer, in a racially-biased  fashion would make the existence of that fact more probable  than without the evidence.  See Miller v. Poretsky, 595 F.2d  780, 784-85 (D.C. Cir. 1978);  see also McDonnell Douglas  Corp. v. Green, 411 U.S. 792, 804 (1973).


5
Of course this assumes that Blasio's testimony is evidence  of racial bias on the part of Knieser.  The District maintains  that Knieser's treatment of Blasio and Chagnon cannot support an inference that Knieser harbored racial bias.  Other  evidence showed that he treated both Blasio and Chagnon  equally, recommending that both be disciplined for their roles  in the incident.  If the jury understood the evidence this way,  the District has no cause to complain.  We may overturn the  evidentiary rulings of the district court only when "a substantial right of the party is affected," Fed. R. Evid. 103(a), that is, only when the error affects the outcome of the trial.  See  Neuren v. Adduci, Mastriani, Meeks & Schill, 43 F.3d 1507,  1512 (D.C. Cir. 1995).  Using that standard, we cannot see  how the District can prevail.  Other evidence bore on the  question whether the District's employment practices were  racially-biased.  This evidence, to which the District did not  object, included testimony regarding other incidents in which  discipline was not meted out in an even-handed fashion.  On  the other hand, if the Blasio evidence did not tend to show  racial discrimination, it could not have influenced the jury  against the District.  See Williams v. Pharmacia, Inc., 137  F.3d 944, 951 (7th Cir. 1998).  To the extent the jury shared  the District's view of the Blasio evidence, a racially-charged  incident occurred and Knieser handled it in a racially-neutral  manner.


6
Relevant evidence may be excluded if its probative value is  "substantially outweighed by the danger of unfair prejudice,  confusion of the issues, or misleading the jury ..." Fed. R.  Evid. 403.  The District claims Blasio's testimony about the  Chagnon incident resulted in a "mini-trial of the entire roll  call incident."  It also claims that the evidence was prejudicial  because it prompted the jury to find for Fredrick and his coplaintiffs out of sympathy for Officer Blasio or because the  jury concluded that the police mismanaged the Second District.


7
Neither objection is persuasive.  The trial court has broad  discretion to weigh the extent of potential prejudice against  the probative force of relevant evidence.  See United States v.  Latney, 108 F.3d 1446, 1450 (D.C. Cir. 1997).  Here the court  carefully considered the District's objections and concluded  that the District's fears of prejudice and confusion were  unwarranted.  The court disagreed with the idea that allowing the testimony would lead to a "mini-trial":  that Knieser  would testify to a different version of events would not "make  [the trial] any longer than necessary."  And because the roll  call confrontation was a clear and distinct event, testimony  about it was unlikely to cause the jury to confuse the District's responsibility for actions against Blasio with its liability  for actions against Fredrick and his co-plaintiffs.

II.

8
The District also seeks a new trial on the ground that the  evidence was not sufficient to support the verdict with respect  to any of the three plaintiffs.  The plaintiffs counter that the  District may not raise sufficiency of the evidence on appeal  because, after it moved for judgment as a matter of law at the  close of their case, the District never renewed the motion and  it filed no post-verdict motion to set aside the judgment.


9
A party may move for judgment as a matter of law "at any  time before submission of the case to the jury."  Fed. R. Civ.  P. 50(a)(2).  When the District filed its motion after the  plaintiffs' case-in-chief, the following exchange occurred:


10
THE COURT:  All right.  Let me hear your motion.


11
MR. BOLDEN [Counsel for the District]:  Your honor, I'd like to move for a judgment as a matter of law as to the complaint.


12
It is the District's position that the plaintiff has the burden of making out a prima facie case of discrimination.  We believe that case has not been made.


13
The court said it would take the motion under advisement,  after which the District presented its evidence in defense. The court never expressly ruled on the District's motion.


14
It is common ground that under no circumstances may the  District win more than a new trial.  A party wishing to renew  a motion for judgment as a matter of law after a verdict has  been rendered must do so within ten days of the entry of  judgment.  See Fed. R. Civ. P. 50(b).  If "a party has failed to  move for j.n.o.v., an appellate court may not, in reversing the  denial of a directed verdict, enter judgment;  relief is limited  to ordering a new trial.  See Johnson v. New York, N.H. &  H. R.R., 344 U.S. 48 (1952)."  Harbor Ins. Co. v. Schnabel  Found. Co., 946 F.2d 930, 936 (D.C. Cir. 1991);  see Cone v.  West Virginia Pulp & Paper Co., 330 U.S. 212, 218 (1947).


15
In the Harbor Insurance case just quoted, a company  sought review of the district court's denial of its motion for a  directed verdict.  Like the District in this case, the company "did not make a timely motion for j.n.o.v. or a new trial [after  judgment had been entered], but instead appealed directly to  this court."  See Harbor Ins., 946 F.2d at 934.1  We ordered  a new trial on the single issue--contributory negligence--the  company had raised in its motion for a directed verdict at the  end of all evidence.  See id. at 933.


16
The District is not in the same position as the party in  Harbor Insurance.  Its only motion came at the close of the  plaintiffs' case;  it never filed a motion for judgment at the  close of all the evidence.  The rule, followed in the other  courts of appeals, is that "a party who moves for judgment  after an opponent's opening statement or at the close of the  opponent's evidence must ordinarily reassert the motion at  the close of all evidence or risk waiving the right to renew the  motion under Rule 50(b) ... and the right to appellate review  of the sufficiency of an opponent's evidence...."  9 James  Wm. Moore et al., Moore's Federal Practice   50.20[3] (3d  ed. 2000);  see Davoll v. Webb, 194 F.3d 1116, 1135-36 (10th  Cir. 1999);  American & Foreign Ins. Co. v. Bolt, 106 F.3d  155, 160 (6th Cir. 1997);  Patel v. Penman, 103 F.3d 868, 878  (9th Cir. 1996);  BE & K Constr. Co. v. United Bhd. of  Carpenters & Joiners of Am., 90 F.3d 1318, 1324-25 (8th Cir.  1996);  Umpleby v. Potter & Brumfield, Inc., 69 F.3d 209, 212  (7th Cir. 1995);  Kiesling v. Ser-Jobs for Progress, Inc., 19  F.3d 755, 758-59 (1st Cir. 1994);  Scala v. Moore McCormack Lines, Inc., 985 F.2d 680, 684 (2d Cir. 1993);  McCann v.  Texas City Refining, Inc., 984 F.2d 667, 671 (5th Cir. 1993); Keith v. Truck Stops Corp. of Am., 909 F.2d 743, 744 (3d Cir.  1990);  National Indus., Inc. v. Sharon Steel Corp., 781 F.2d  1545, 1548 (11th Cir. 1986).


17
Our court has never squarely adopted this general rule,  although we have held that "a prerequisite to any motion for judgment n.o.v. is a motion for directed verdict at the close of  all the evidence," and that a defendant cannot raise insufficiency of the evidence on appeal unless the defendant filed a  directed verdict motion seeking judgment on that basis.  U.S.  Indus., Inc. v. Blake Constr. Co., 671 F.2d 539, 548 (D.C. Cir.  1982).  If we applied that holding to the District, it would lose  because it failed to move for judgment as a matter of law at  the close of the evidence.  But in light of the district court's  failure to rule on the District's motion at the close of the  plaintiffs' case, the District urges us to treat that motion as  the equivalent of one filed at the close of all the evidence. Rule 50(b) of the civil rules states that "[i]f, for any reason,  the court does not grant a motion for judgment as a matter of  law made at the close of all the evidence ... [t]he movant  may renew its request for judgment as a matter of law by  filing a motion no later than 10 days after entry of judgment." Fed. R. Civ. P. 50(b).  This is of no assistance to the District. The text of Rule 50(b) envisions a motion made after "entry  of judgment," something the District neglected to do.


18
There is another problem for the District.  With some  exceptions courts of appeals hold that even if a defendant files  a motion for judgment at the close of the plaintiff's case, the  defendant must move for judgment as a matter of law at the  close of all evidence in order to preserve lack of sufficient  evidence as a ground for appeal--again something the District neglected.  See, e.g., Patel, 103 F.3d at 878 & n.9; Umpleby, 69 F.3d at 212.  Although exceptions have grown  up over the years, see, e.g., Douglas County Bank v. United  Financial Inc., 207 F.3d 473, 477 (8th Cir. 2000);  Scala, 985  F.2d at 684 n.2, the basic rule remains intact and has become  common to both civil and criminal practice.  The Supreme  Court treated it as a foregone conclusion as much as a  century ago.  See Bogk v. Gassert, 149 U.S. 17, 23 (1893); Columbia & Puget Sound R.R. v. Hawthorne, 144 U.S. 202,  206 (1892).  The logic behind the rule is simple.  "It not  infrequently happens that the defendant himself, by his own  evidence, supplies the missing link;  and, if not, he may move  to take the case from the jury upon the conclusion of the  entire testimony."  Bogk, 149 U.S. at 23;  see also United States v. Zeigler, 994 F.2d 845, 848 (D.C. Cir. 1993) (suggesting that" 'negative inferences' " from defendant's manner of  testifying could "suppl[y] enough evidence to convince any  rational juror of ... guilt beyond a reasonable doubt").


19
Our practice in criminal cases is comparable.  Rule 29 of  the Federal Rules of Criminal Procedure was intended to  "accord with the practice prescribed for civil cases by Rule  50(a) of the Federal Rules of Civil Procedure," Fed. R. Crim.  P. 29 advisory committee's note.  A defendant may move for  a judgment of acquittal (previously called a motion for a  directed verdict) on the ground that "the evidence is insufficient to sustain a conviction," id.;  the motion may be made at  the close of the prosecution's case-in-chief or at the close of  all the evidence.  Id.  But in this circuit, as in others, "a  criminal defendant who, after denial of a motion for judgment  of acquittal at the close of the government's case-in-chief,  proceeds to the presentation of his own case, waives his  objection to the denial."  United States v. Foster, 783 F.2d  1082, 1085 (D.C. Cir. 1986) (en banc).  A defendant also  waives his right to object to the sufficiency of the evidence on  appeal if he fails, at the end of all evidence, to renew the  motion he lodged at the close of the government's case.  See  United States v. Sherod, 960 F.2d 1075, 1077 (D.C. Cir. 1992). (In criminal cases, Rule 29(b) provides that if "the court  reserves decision"--as the district court did here--"it must  decide the motion on the basis of the evidence at the time the  ruling was reserved," but civil Rule 50 has no comparable  provision.)


20
For the District to escape the force of these precedents it  must come up with some exception to the requirement that a  Rule 50 motion be renewed at the close of all evidence in  order to preserve a sufficiency-of-the-evidence claim for appeal.  A Fifth Circuit decision, the District tells us, recognizes such an exception when the motion at the end of the  plaintiff's case sufficiently warned the plaintiff of the issues  and the district court "either refused to rule or took the  motion under advisement."  Polanco v. City of Austin, 78  F.3d 968, 974-75 (5th Cir. 1996).  Even if we followed Polanco, the District would not qualify for the exception.  Its oral motion did not fairly warn the plaintiffs of the issues it now  seeks to raise on appeal and the District's own witnesses  provided evidence that could support the plaintiffs' case.  For  example, Lieutenant Knieser testified that jobs were sometimes filled without posting vacancy notices, a fact relevant to  the District's objection that plaintiffs could not have been  denied jobs for which they never had applied.


21
Given the District's procedural default, we are limited in  our review to considering whether the verdict is so unsupported by evidence that allowing it to stand would constitute  a manifest miscarriage of justice.  Cf. Bristol Steel & Iron  Works v. Bethlehem Steel Corp., 41 F.3d 182, 187 (4th Cir.  1994).  Whatever flaws there may be in the record compiled  by the plaintiffs, they are not that severe.


22
Affirmed.



Notes:


1
  The Harbor Insurance opinion uses the phrases "directed  verdict" and "judgment not on the verdict."  Under the 1991  revisions to the Federal Rules of Civil Procedure, these terms have  been replaced by the generic phrase "judgment as a matter of law." See Fed. R. Civ. P. 50 advisory committee's note;  9 James Wm.  Moore et al., Moore's Federal Practice   50.03 (3d ed. 2000).


