    13-3428
    Session v. Rodriguez


                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                   SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER
IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION ASUMMARY ORDER@). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the
    30th day of September, two thousand fifteen.

    PRESENT:
                ROBERT A. KATZMANN,
                      Chief Judge,
                GERARD E. LYNCH,
                      Circuit Judge,
                JANET BOND ARTERTON,
                      District Judge.*
    _____________________________________

    Gary Session,

                            Plaintiff-Appellant,

                      v.                                                       13-3428

    Edwin Rodriguez, Officer,

                            Defendant-Appellee,

    Stephen Coppola, Officer, City of New Haven,

                      Defendants.
    _____________________________________

    For Plaintiff-Appellant:                             Gary Session, pro se, New Haven, CT.


          * The Honorable Janet Bond Arterton of the United States District Court for the District of
    Connecticut, sitting by designation.
For Defendant-Appellee:                                   Thomas E. Katon, Susman, Duffy &
                                                          Segaloff, P.C., New Haven, Connecticut;
                                                          Jeffrey R. Zehe, Neilsen, Zehe & Antas,
                                                          P.C., Chicago, IL.


        Appeal from a judgment of the United States District Court for the District of Connecticut

(Melancon, J.).


        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

        Appellant Gary Session, proceeding pro se, appeals from a jury verdict in favor of the

defendant, Edwin Rodriguez. Session filed a complaint against Rodriguez, a police officer,

asserting claims of false arrest and malicious prosecution. Session alleged that Rodriguez coerced

witnesses to give false statements implicating Session in a murder, and that the arrest warrant

application contained false information and omitted exculpatory evidence. The jury found for

Rodriguez and the district court denied Session’s motion for a new trial. We assume the parties’

familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

        Session argues that he is entitled to judgment as a matter of law, but he did not move for

this relief in district court. “It is well established that a party is not entitled to challenge on appeal

the sufficiency of the evidence to support the jury’s verdict on a given issue unless it has timely

moved in the district court for judgment as a matter of law on that issue.” Kirsch v. Fleet Street,

Ltd., 148 F.3d 149, 164 (2d Cir. 1998); see also Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc.,

546 U.S. 394 (2006). At most, we may grant judgment as a matter of law only if necessary to

prevent manifest injustice, see Lore v. City of Syracuse, 670 F.3d 127, 153 (2d Cir. 2012), which

exists “where a jury’s verdict is wholly without legal support.” ING Global v. United Parcel

Service Oasis Supply Corp., 757 F.3d 92, 97 (2d Cir. 2014).

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       Session has not made this showing. To prevail on his claims, Session needed to show, inter

alia, that Rodriguez lacked probable cause to arrest him. See Roberts v. Babkiewicz, 582 F.3d 418,

420 (2d Cir. 2009); Russo v. City of Bridgeport, 479 F.3d 196, 203 (2d Cir. 2007). The jury was

free to credit police testimony that the witnesses were not coerced and, in light of evidence that two

witnesses implicated Session in the murder, there was probable cause for his arrest. Thus, the

jury’s verdict has legal support.

       We review for abuse of discretion the denial of Session’s motion for a new trial based on

improper comments in the defense summation. Munafo v. Metropolitan Transp. Auth., 381 F.3d

99, 105 (2d Cir. 2004). When a party challenges the conduct of opposing counsel, a new trial is

warranted “if counsel’s conduct created undue prejudice or passion which played upon the

sympathy of the jury.” Matthews v. CTI Container Transport Int’l Inc., 871 F.2d 270, 278 (2d Cir.

1989). The district court did not abuse its discretion in denying Session’s motion because although

defense counsel made two improper comments, those comments were isolated and did not create

“undue prejudice.” Id. We therefore affirm for substantially the reasons stated by the district court

in its August 9, 2013 order.

       Session’s challenge to the jury instruction is waived because his counsel explicitly stated

that he did not object to it. See United States v. Agrawal, 726 F.3d 235, 259 (2d Cir. 2013) (holding

that argument was waived “by a negative response on the record to a district court invitation to

voice objection”).

       We review the district court’s evidentiary rulings for abuse of discretion. See Silverstein v.

Chase, 260 F.3d 142, 145 (2d Cir. 2001). “A new trial is warranted only if the court’s abuse of

discretion clearly prejudiced the outcome of the trial.” Jones v. Spentonbush-Red Star Co., 155

F.3d 587, 592 (2d Cir. 1998)


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       Here, the district court acted well within its discretion by ruling that a plea offer and

Session’s alibi for the murder were not relevant. Evidence is relevant if it “has any tendency to

make a fact more or less probable than it would be without the evidence,” and that “fact is of

consequence in determining the action.” Fed. R. Evid. 401. The issue at trial was whether

Rodriguez had probable cause to arrest Session and a prosecutor’s plea offer, made months after

Session’s arrest, did not make it “more or less” probable that Rodriguez acted without probable

cause months earlier. Likewise, it is undisputed that Session did not inform Rodriguez that he had

an alibi and, when determining whether probable cause exists, the relevant facts are those

“available to the officer at the time of the arrest and immediately before it.” Caldarola v.

Calabrese, 298 F.3d 156, 162 (2d Cir. 2002) (internal quotation marks and citation omitted).

       Session also challenges the admission of a prosecutor’s handwritten notes of his interview

with a witness, and his testimony (consistent with those notes) that the witness offered to provide a

tape of a rap song Session wrote about the murder. However, evidence that the witness volunteered

additional evidence implicating Session was relevant, given his argument that her statement was

false and had been coerced by Rodriguez.

       Additionally, Session argues that the court erred by admitting evidence that a witness

received a threatening note because this evidence was irrelevant and unfairly prejudicial. To

prevail on his malicious prosecution claim, however, Session needed to show that Rodriguez acted

with malice. See Roberts, 582 F.3d at 420. This evidence was relevant to Rodriguez’s state of

mind, since Rodriguez’s belief that the witness had been threatened tended to refute Session’s

claim that Rodriguez had an improper motive. See Kogut v. County of Nassau, 789 F.3d 36, 46 (2d

Cir. 2015) (ruling that court properly admitted evidence that detectives received evidence

corroborating plaintiff’s confession because this evidence “increase[d] the likelihood” that they


                                                 4
lacked malice). To the extent that this evidence could be prejudicial, the court gave an appropriate

limiting instruction and there is “a strong presumption that juries follow limiting instructions.”

United States v. Snype, 441 F.3d 119, 129 (2d Cir. 2006).

        Session challenges the admission of other evidence, but he did not object in the district

court and has not shown plain error. See Fed. R. Evid. 103. We have considered all of Session’s

remaining arguments and find them to be without merit. Accordingly, we AFFIRM the judgment

of the district court.

                                              FOR THE COURT:
                                              Catherine O=Hagan Wolfe, Clerk




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