

          [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]

      United States Court of Appeals
          For the First Circuit                                For the First Circuit

                               

No. 96-1223

     ADALBERTO LIO a/k/a ALBERTO LIO,

          Plaintiff, Appellant,

                    v.

     WALTER F. ROBINSON, JR., ET AL.,

          Defendants, Appellees.

                               

APPEAL FROM THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF MASSACHUSETTS

[Hon. Robert E. Keeton, U.S. District Judge]                                                                

                               

                  Before

          Lynch, Circuit Judge,                                                     

Aldrich and Bownes, Senior Circuit Judges.                                                               

                               

Edgar L. Kelley for appellant.                           
Mary Jo Harris,  Special Assistant Corporation Counsel, with  whom                          
Merita  A. Hopkins, Corporation Counsel, and  Kopelman and Paige, P.C.                                                                              
were on brief for appellees.

                               

              April 29, 1997
                               

BOWNES, Senior Circuit Judge.   Plaintiff-appellant                      BOWNES, Senior Circuit Judge.                                                  

Adalberto  Lio appeals from a jury finding of no liability in

his  42  U.S.C.    1983  action,  Massachusetts Civil  Rights

action, and  Massachusetts tort  claim  against seven  Boston

police officers and  the City of Boston.1  The only issues on

appeal  concern  evidentiary  rulings made  by  the  district

court.  We affirm the rulings.

                    I.                                          I.

               THE EVIDENCE                                     THE EVIDENCE                                                 

We rehearse so much of the evidence as is necessary

to understand the evidentiary rulings that are the subject of

this appeal.  Our review of the evidence is  made, of course,

in  the light most favorable  to the verdicts.   Newell P.R.,                                                                         

Ltd. v. Rubbermaid,  Inc., 20  F.3d 15, 18  (1st Cir.  1994).                                     

Plaintiff  Lio had been a Boston police officer since June of

1979; his designation  was patrolman.   Starting in 1982,  he

began exercising to build up his body.   He used various gyms

in the  Boston area.  In the  spring of 1991, he  was using a

gym in Dedham,  Massachusetts.  In  April of 1991,  Sergeant-

Detective  Leonard  Marquardt  (one of  the  defendants)  was

informed by an  officer of the Dedham  Police Department that

Lio was  selling drugs  -- steroids  -- at  a gym  in Dedham.

                                          

1.  The original  defendants  included the  Town  of  Dedham,
Massachusetts,  and  two of  its  police  officers.   Summary
judgments  were granted  in favor  of  these defendants.   No
appeal has been taken from those judgments.

                   -2-                                          2

Marquardt  contacted  his  supervisor, Superintendent  Joseph

Saia (also a  defendant), and  a sting operation  was set  in

motion.  There was to be a "buy-bust."  

John  Antoniou, who had been arrested previously by

Marquardt  and  Detective  Walter F.  Robinson,  Jr. (another

defendant) for  selling drugs, agreed to  purchase a quantity

of steroids from Lio.  Antoniou knew Lio from meeting him  at

the gym.   He was  one of  the persons from  whom the  Dedham

Police  Department received information  that Lio was dealing

in  steroids.  Antoniou was  given $650 by  Marquardt to make

the "buy."  

On  May 23,  1991,  Marquardt was  informed by  the

Dedham Police Department that  Antoniou had arranged with Lio

to make the "buy" at  11:30 p.m. that night at the  White Hen

Pantry  (a convenience store) on Hyde  Park Avenue in Boston.

Marquardt  informed Detectives  Robinson  and  Kenneth  Beers

(another  defendant), who were  on duty,  to be  available to

observe  the "buy."   Marquardt  met with Antoniou  in Dedham

prior  to the "buy."  He emphasized  that the "buy" had to be

visible  so  it could  be  observed  by  the watching  police

officers.   Antoniou was told to signal that the "buy" was in

progress by running his fingers through his hair.

The "buy"  was not  made at  the White  Hen Pantry.

Lio, who  was in police  uniform, talked briefly  to Antoniou

before entering and  after leaving the store.  Antoniou's car

                   -3-                                          3

followed  Lio's  car down  Hyde Park  Avenue.   The observing

police   officers  kept  their   superiors  apprised  of  the

situation by radio.   The two proceeded to Austin  Street and

parked  about  twenty  feet   from  the  intersection.    The

observing  officers,  Detectives  Beers  and  Robinson,  were

following in Detective Beers' private car.  Beers  parked his

car so that  he and  Robinson could see  both Antoniou's  and

Lio's cars.   They saw both men get out of their vehicles and

meet in  the middle  of the  street.  Lio  thrust a  bag onto

Antoniou's  chest, which  Antoniou  threw into  the passenger

side of his automobile, a white Corvette convertible with the

roof back.   When the  bag was subsequently  examined by  the

police, it  was found  to  contain packages  of steroids  and

hypodermic needles.

After the "buy" had been made, Beers drove  his car

to  Austin Street,  which was  one-way, and  parked it  at an

angle  across the street so  as to block  vehicles from going

forward.  Beers then  approached Lio.  There is  a difference

in the testimony as to what happened next.  According to Lio,

Beers kicked and punched him.   He pushed Beers away so  that

he could get back into his  car and leave.  Beers claims that

Lio  hit him  hard in  the midsection  and knocked  him down.

Beers claims that he put Lio under arrest for assaulting him.

Things then happened quickly. Lio got into his car,

a blue  Toyota coupe, and began  to back up at  a high speed.

                   -4-                                          4

Beers  hung onto  the  side of  Lio's  car until  it  stopped

suddenly and he was thrown off.  Lio started forward straight

at Detective Robinson.  Robinson jumped to the side and fired

at  Lio.   His shot  blew out  the front  side window  on the

driver's side of the car.   Lio then stopped and put  the car

in reverse.  Both Beers and Robinson fired at the rear end of

Lio's car.  Two bullet holes were found in the rear bumper of

the  car.  Lio managed to back  his car into the intersection

of Austin and West Streets.  He turned into West Street.

Superintendent Robert  Faherty (another defendant),

night  commander of the Boston Police Force, was in the area.

He  heard a  radio  transmission by  a  police officer  state

"Austin toward West."  As he turned onto West Street he heard

gunshots and saw  a small  dark sports car  approaching at  a

high rate of speed.  Faherty, thinking that there had  been a

drive-by shooting, gave chase.  He followed Lio onto Enneking

Parkway.  Shortly thereafter Faherty heard a  crash.  Faherty

saw Lio get out of his car and run into a patch of woods.

In  a short  time,  back-up police  units began  to

arrive at the scene.   One of the first arrivals was  Officer

Cornell  Patterson (another  defendant).    He asked  Faherty

where  the suspect had gone  and was told,  "into the woods."

Patterson took  Faherty's flashlight  and began a  search for

Lio.   He found him, and Lio surrendered.  Patterson took him

to  Superintendent Faherty, who told Lio that he was going to

                   -5-                                          5

be  charged with attempted murder.  Faherty then gave Lio the

Miranda warnings.   Lio was  then taken to  the area  station                   

house for booking.       Superintendent     Saia    commanded

Sergeant   Edward   O'Donnell  (the   seventh  police-officer

defendant) to  conduct a "use of  deadly force" investigation

into  the  shots  fired at  Lio  and  his  car by  Detectives

Robinson and Beers.

Lio was charged with assault with intent to murder,

assault and battery by  means of a dangerous weapon  (a car),

assault  by means of a  dangerous weapon (a  car), driving to

endanger, speeding, leaving the scene of an accident, failure

to  stop  for a  police officer,  distribution  of a  Class E

controlled  substance,  unlawful  possession   of  hypodermic

needles, and unlawful  possession of syringes.   In May 1994,

the District Attorney issued a nolle prosequi, dismissing the                                                         

charges against Lio.  This lawsuit followed.  

Plaintiff's  complaint  alleged  violations  of  42

U.S.C.    1983  (false  arrest,  excessive  force,  malicious

prosecution,  and  conspiracy   to  violate  civil   rights),

violations of the Massachusetts  Civil Rights Act, Mass. Gen.

Laws ch. 12,    11I, and assault and battery,  arising out of

an investigation which culminated in Lio's arrest on May  23,

1991.   The plaintiff further alleged that the City of Boston

had a  practice, custom or policy  of allowing constitutional

violations, such as alleged in his complaint, to occur.

                   -6-                                          6

The district  court decided  prior to the  start of

the trial  that the case against the City of Boston should be

severed  from   that  of   the  police  officers   and  tried

immediately   thereafter  if  any  of  the  defendant  police

officers  were found liable.   Because the jury  did not find

any of the individual defendants liable, the case against the

City of Boston was dismissed.

                   II.                                         II.

                THE ISSUES                                      THE ISSUES                                                

Appellant has  raised three issues,  which we state

as they are  set forth at page  one of his brief.   We review

for  abuse of  discretion.   See Blinzler v.  Marriott Int'l,                                                                         

Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).                

The first issue is stated as follows:

     I.  Whether the trial judge erred in
allowing Defendant's Motion In  Limine To
Exclude  Evidence  of   a  Character   or
Reputation Pursuant to  Federal Rules  of
Evidence   404(b),   resulting   in   the
exclusion of evidence  of racial  animus,
to  prove  motive,  opportunity,  intent,
preparation,    plan,   knowledge,    and
identity within Rule 404(b).

There  was  a  hearing   on  defendants'  motion  in  limine.                                                                        

Plaintiff wanted to prove through the deposition testimony of

Gregory  Matthews,  Jose Alfonso,  Marilyn Hinton,  and Brian

Latson  -- all of whom  were minority officers  on the Boston

Police  Force, and all of whom,  except Alfonso, served under

defendant  Marquardt   --  that Marquardt  harbored a  racial

                   -7-                                          7

animus toward minorities.  At the  hearing the district judge

stated the  question as he understood  it: whether Marquardt,

acting  in a  supervisory  capacity, did  something that  was

motivated  by racial  animus.  Counsel  for Lio,  Mr. Kelley,

agreed that  that was the  question.  The  following colloquy

then ensued:

     THE COURT:  All right.  Now, then it
seems to me that since that is the issue,
the existence  of  racial animus  is  not
itself an  element of  any claim and  the
question   becomes   what   evidence   is
admissible  to show that  the officer did
something with racial animus.  That's the
question.   And that brings  us directly,
then,  to Rule 404, that says evidence of
a person's character that he has a racial
animus is not  admissible for the purpose
of  proving  that  action  in  conformity
therewith   occurred   on  a   particular
occasion.  404(a) is directly in point.

     MR. KELLEY:  It would be in point if
the purpose of  the offer were restricted
to proving propensity or proclivity.

     THE COURT:  But  what is the purpose
of the offer?

     MR.  KELLEY:  The purposes -- one of
the defendants here, Superintendent Saia,
a long and experienced officer who was in
charge   of   the  operations   of  these
particular defendants, knowing in advance
of -- sufficient  to question the  racial
bias and  animus of  given officers  in a
given  station,  did  nothing,   took  no
action, as a matter of fact in testimony,
endorsed their actions.

     THE  COURT:   Well,  you  see,  that
doesn't  at all  support  an argument  of
opinion or reputation  in the  community.
That would be an argument that would only
permit  evidence  that Saia  himself knew

                   -8-                                          8

about  this  characteristic of  the other
person, so that's what you have to offer.
You can't offer --

     MR. KELLEY:   That's what I'm saying
we will offer and we will prove.

     THE COURT:  Well, that's  not -- all
right.  Then show me the proffer.

Then followed an extensive colloquy (ten transcript

pages) between the  court and plaintiff's counsel.  The court

ruled  that the  deposition  testimony of  the four  minority

police officers could not be used.  It then stated:

Now, that's  not going to  stop you  from
making  a proffer  during  the course  of
trial.     Of  course,  if  you  want  to
complain  about  my  ruling   on  appeal,
you're  going to  have to  do that.   And
when I hear that proffer in  more detail,
I'll consider any  arguments that may  be
made  at that  time just  in case  it may
persuade me to a different view.

     But the view  I hold at the  present
time is  that what you're aiming for here
is to show that Saia is liable personally
and  that the  only way  I can  determine
that that is correct is to determine that
Saia  acted with  racial animus  and that
what  you're  proffering  to  me  doesn't
cover  some  gaps  between  a  particular
officer's   personal   view   about   his
experiences  and,  first,  the  inference
that that means that Marquardt has racial
animus  and  has  that  reputation,  and,
secondly,  that  Saia  knows   that  and,
third,  that  when  Saia  is  making  his
decisions  he's not  just  making  a  bad
executive  decision,  but he's  making it
with racial  animus  because of  his  own
racial animus.  There are several missing
steps in the proffer of evidence.

No proffers were made during trial.

                   -9-                                          9

On  November  23, 1995,  the day  after defendants'

motion in limine had been granted, plaintiff filed a "Proffer                            

of Evidence" to which were attached extensive excerpts of the

deposition  testimony  of  minority  Boston  Police  Officers

Matthews, Alfonso,  Hinton, and Latson.   The purpose  of the

proffer is stated as follows:

     In  respect  of  Marilyn Hinton  her
testimony   is   replete  with   personal
experiences that  prove conclusively that
the  defendant,  Leonard Marquardt  had a
rampant  racial  animus  which  made  her
service   in   Area  E   humiliating  and
horrific   as   a  black   female  police
officer.  She  extended his  paradigmatic
racism  as  illustrative  of the  cynical
rule that police like him  are "easier to
tolerate than to correct," as a pervasive
policy in Area E.

     The gist of  Gregory Matthews  [sic]
testimony as excerpted is that he was the
object of direct  racial slurs stated  by
the defendant, Leonard Marquardt, that he
heard the defendant  refer to  minorities
and blacks a[sic]  "chincs and spics"  at
page 52, and "Leroy(s)" at page 72.

     In  the  case of  Brian  Latson, his
testimony is probative  on the issue that
the defendant, Leonard  Marquardt, had  a
propensity  to usurp the functions of the
division  of  Internal   Affairs.     The
defendant,  Leonard Marquardt,  arrogated
to himself an excessive personal industry
in supervising minority officers.

     In  the case  of  Jose  Alfonso  his
testimony is  probative on the issue of a
defense that the plaintiff  invented such
an animus  as a  defense to  the criminal
and  administrative  charges against  him
resulting from the  "buy bust"  operation
generated  by  Area   E  personnel   (all

                   -10-                                          10

defendants  except  Saia) for  a spurious
execution in Dedham.

We  have read  the deposition  testimony carefully.

We point out, first of  all, that a portion of the  testimony

of all the  deponents is  hearsay and for  that reason  alone

would not be  admissible.  Officer  Alfonso obtained all  his

information about  Area E  (the home base  for Marquardt  and

Lio) from Lio.   Lio was Alfonso's training officer  and they

were  partners for  a year  and a  half, assigned  to Spanish

areas  of Boston.  Because  of Lio's advice,  Alfonso did not

work in Area  E.  He only knew about  Marquardt from what Lio

told him.   He did  not know Superintendent  Faherty at  all.

Insofar as the proffer  suggests that Alfonso had information

that  the   "buy-bust"  sting  operation   was  spurious  and

motivated  by Marquardt's  racial  animus, there  is no  such

testimony,  either direct or implied, in his deposition.  Nor

is there in any of the other depositions.

Officers   Matthews   and   Hinton   worked   under

Marquardt,  apparently  at different  times.   Both described

Marquardt  as a  bigoted racist  who treated  minorities with

scorn and derision.  According to Hinton, Marquardt was foul-

mouthed with minority women and verbally assaulted them.  

Officer Brian Latson worked under Marquardt in Area

E.  He testified  that he never observed  anything suggesting

that either  Marquardt or  Detective Robinson  were targeting

minority  officers.   He testified  further that  he did  not

                   -11-                                          11

think  the racial  climate at Area  E was  bad at  all and he

enjoyed   working  there.     Latson  also   testified  under

questioning  by  Lio's  counsel   that  Lio  was  upset  with

Marquardt and "fearful" of him.  Then followed testimony that

would  be  clearly  inadmissible  on  relevancy  and  hearsay

grounds:   Latson's commanding  officer, Deputy  Clayburn (an

African-American), called  him into  his office and  told him

that he had  heard that  Latson was using  steroids.   Latson

denied  it, and said that  he had been  a Christian Scientist

since he was twelve  and never even took an  aspirin.  Latson

further  said that he was willing to submit to whatever tests

that Clayburn wanted to  give.  It was Latson's  opinion that

this inquiry  was prompted by the  fact that both  he and Lio

were  into body building and lifting weights.  About the same

time, he was approached by a known drug dealer and  a "street

source" for Latson, who told him that two detectives had been

inquiring  about  him.    Latson testified  that  he  thought

Marquardt  was   asking  about  him  because   of  his  close

relationship with Lio.

As we discern it, Lio's theory for the admission of

the  deposition testimony is that it tended to prove that the

"buy-bust"  sting  operation  was  motivated  by  Marquardt's

racial  animus against Lio.  Even if we assume that Marquardt

had a strong racial  animus against minority police officers,

of  which   the  depositions  of  Hinton   and  Matthews  are

                   -12-                                          12

probative, and  that Superintendent Saia knew  this or should

have known it,  we fail  to comprehend the  relevancy of  the

depositions.    There  was  no  direct,  circumstantial,   or

inferential evidence that  Lio was  "set up" as  a result  of

Marquardt's  racial  animus  toward minority  officers.   The

sting operation originated with the Dedham Police Department.

That police  department informed Marquardt that  Lio had been

dealing in steroids.   It was the Dedham Police  who selected

John Antoniou  to make  the "buy."    Marquardt had  reliable

information than an officer under his  command was dealing in

drugs.    He got  permission  from  his  superior officer  to

proceed with the "buy-bust"  sting.  There is nothing  in the

deposition testimony to suggest  that he would have proceeded

differently had the implicated  officer been white instead of

Hispanic.  We think the deposition testimony could  have been

excluded on the grounds of relevancy alone.

The district court was surely correct in  excluding

the deposition  testimony on the  grounds of Federal  Rule of

Evidence 404(a):

Rule   404.     Character   Evidence  Not                      Rule   404.     Character   Evidence  Not
Admissible To  Prove Conduct; Exceptions;                      Admissible To  Prove Conduct; Exceptions;
Other Crimes                      Other Crimes

     (a)   Character  evidence generally.                           (a)   Character  evidence generally.
Evidence  of a  person's  character or  a
trait of character is not  admissible for
the   purpose   of   proving  action   in
conformity  therewith   on  a  particular
occasion, except: . . .

Nor does it fall within the ambit of exception (b):

                   -13-                                          13

     (b) Other crimes,  wrongs, or  acts.                           (b) Other crimes,  wrongs, or  acts.
Evidence of other crimes, wrongs, or acts
is not admissible to prove  the character
of a  person in  order to show  action in
conformity therewith.   It may,  however,
be admissible for other purposes, such as
proof  of  motive,  opportunity,  intent,
preparation,  plan, knowledge,  identity,
or  absence  of   mistake  or   accident,
provided   that   upon  request   by  the
accused,  the  prosecution in  a criminal
case shall provide  reasonable notice  in
advance of trial, or  during trial if the
court  excuses  pretrial  notice on  good
cause shown, of the general nature of any
such  evidence it intends to introduce at
trial.

Clearly, the purpose of plaintiff's proffer was "to

prove the character" of Marquardt "in order to show action in

conformity therewith."   And since the proffer  does not come

within any  of the exceptions in the  second sentence because

there  is no evidence in  the depositions showing  any of the

other  purposes,  the district  court correctly  excluded the

deposition testimony.

Appellant   argues   that  Gutierrez-Rodriguez   v.                                                                         

Cartagena,  882 F.2d  553 (1st  Cir. 1989), is  precedent for                     

admitting the  depositions into evidence.  Gutierrez involved                                                                

a 42 U.S.C.   1983 civil rights action brought against police

officers  of   the  Commonwealth  of  Puerto   Rico  for  the

unwarranted  shooting  of  the  plaintiff,  rendering  him  a

paraplegic.   In  that  case the  district  court allowed  in

evidence under Rule 404(b) thirteen case files of  the police

                   -14-                                          14

officer who shot the  plaintiff.  We affirmed  the admission,

stating:

     The complaint files were relevant to
prove   the   supervisory  liability   of
Cartagena  and  Alvarez.   They  were not
introduced to show that based upon Soto's
past  conduct  it  was  likely   that  he
participated  in the  Gutierrez shooting.
The  evidence  was   not  used  to  prove
conduct,  period.    As   was  repeatedly
stressed  by  the  district   court,  the
evidence  could  only  be   used  against
Cartagena  and    Alvarez  to  show gross
lapses in the supervision  and discipline
of Soto.

Id.  at 572.    This  is  not  precedent  for  admitting  the               

depositions in this  case.   Quite the contrary!   The  other

cases  cited  by  appellant   in  support  of  admitting  the

depositions are even  more attenuated.   Even if an  argument

could be  made that the  statements provide proof  of motive,

the evidence was extremely weak for the reason already given.

The sting was orchestrated by the Dedham Police.

The second issue as stated by appellant is:  

II.   Whether the  trial  judge erred  in
denying  Plaintiff-Appellant's Motion  In
Limine to Permit The Introduction of John
Antoniou's Criminal  Record after hearing
and as  renewed during the course  of the
trial.

This  issue does  not require  extended discussion.

Antoniou was not a  witness at the trial.   Appellant alleges

that he fled the jurisdiction.  His deposition was not taken.

Lio's  attorney injected Antoniou into the case on his direct

examination of Marquardt:

                   -15-                                          15

Q:   (By  Mr. Kelley):  Did you have
     any   other  words   with  John
     Antoniou at  that meeting other
     than what you've said here?
A:   (By Marquardt):  No.
Q:   Did    any    of   the    other
     participants in this discussion
     have  any  words directly  with
     John    Antoniou    that    you
     overheard?
     . . .
A:   I don't remember any.
Q:   Did John Antoniou say anything?
A:   Yes.
Q:   What did he say?
Ms. Harris:  Objection.  Hearsay, your                                
               Honor.
The Court:  Overruled.                               
A:   He said that he could buy drugs
     from   (indicating)   Adalberto
     Lio.
Q:   He said he could buy drugs?
A:   Yes sir, he did.
Q:   Did  he then move  on from that
     and say, "I will attempt to buy
     drugs from Adalberto Lio?"
A:   That's what I thought he was there for.
     . . .
Q:   And Antoniou at Area E told you
     that  he was willing  to try to
     arrange a sale of steroids from
     (indicating) Adalberto  Lio, is
     that correct?
A:   Yes, sir.

The court instructed the jury, after the statements

of Antoniou had been admitted, as follows:

     THE COURT:   Now, I  think I  should
give   the   limiting  instruction   that
[statements  of  Antoniou are]  not being
received   to  prove  the  truth  of  the
statements made,  but it  has to come  in
because it's information that  bears upon
any  charge of  probable cause  or acting
without  probable  cause against  various
people  .  .  .   even  if  some  of  the
information  .  .  .  is  hearsay  within
hearsay, it's still  information that  is

                   -16-                                          16

being  passed along  and  is  taken  into
account in the whole array of information
that the officers who are  defendants, if
they  have that information, it's part of
the information they take into account in
determining     whether     action     is
appropriate.

     MR. KELLEY:    I guess,  then,  your
Honor, what I would request the  Court to
do  is,  as  specifically   as  possible,
emphasize that this is not being received
for the purpose of the truth of any --

     THE COURT:  I'll do that.

Lio  did not  object  to this  instruction; to  the

contrary, he acquiesced in it.

Finally, the record makes  it clear that the police

officers who dealt with  Antoniou, including Marquardt,  knew

and  acknowledged that he had  a criminal record.   Under all

the circumstances  here, it  was not  error for  the district

court to  exclude the specifics of  Antoniou's prior criminal

record.

The third  and final  issue raised by  appellant is

stated:

     III.   Whether the trial Judge erred
in denying Plaintiff's  Motion In  Limine
to    Permit    the    Introduction    of
Massachusetts   Superior   Court   "Nolle
Prosequi"   and   related  papers   under
Federal Rules of Evidence, Rules  201 and
803(8)(C) and in  applying the so  called
"Bad Acts" restriction  of Rule 404(b) to
that evidence.

Some explanation  is in order.   The district court

allowed Lio to  read to  the jury the  nolle prosequi  docket                                                                 

                   -17-                                          17

entries.  The  jury was  then instructed  that these  entries

were terminations in favor of the plaintiff and satisfied one

element of the malicious prosecution claim.

The district court did not allow in evidence a  two

and one  half page statement  by the Suffolk  County District

Attorney giving  the reasons for  the nolle  prosequi.   This                                                                 

statement  was  clearly  hearsay;   it  was  an  out-of-court

statement  offered  for  the  truth  of  what  was  contained

therein.  And as  the court explained fully to  Lio's counsel

at  the pretrial hearing on the motions in limine, it did not                                                             

fall within the hearsay exception of Federal Rule of Evidence

803(8)(C), which permits the introduction into evidence of 

records,  reports,  statements,  or  data
compilations,  in  any  form,  of  public
offices   or  agencies,   setting  forth,
. . . . in civil actions  and proceedings
and  against  the Government  in criminal
cases, factual findings resulting from an
investigation made  pursuant to authority
granted  by law,  unless  the sources  of
information   or    other   circumstances
indicate lack of trustworthiness.

The following colloquy took place:

     THE COURT:  Now, what is the factual
finding  that  you're proposing  to offer
here?

     MR. KELLEY:  The finding that, as is
recited  in  the   nolle  prose   itself,
evidence   was   compromised  by   police
officers, internal contradictions between
--

     THE COURT:   Wait a minute.   Wait a
minute.  Where is  that finding?  Read me
the language that you say constitutes --

                   -18-                                          18

     MR.    KELLEY:        "Because    of
deficiencies  in  the  way Boston  Police
officers   controlled  and   handled  the
informant as well as physical evidence in
this   case"   --   that's    a   factual
determination  -- "there  is," therefore,
"a   substantial   likelihood  that   the
Commonwealth  cannot  establish  a  prima
facie case . . . ."

     THE  COURT:   All right.   Now,  I'm
trying to  look  for some  finding  there
that is related to an issue in this case.
Findings  that  are  immaterial  to  this
case, of course, don't come into evidence
in   this  case.     Findings   that  are
immaterial to this case, of course, don't
come into evidence in this case.

     MR. KELLEY:  Of course.

     THE  COURT:  It's only findings that
are material to this case.

     Now, there is not  an identification
of what  the deficiencies were,  so I  am
not able to tell whatever the person, the
official   making    this   finding   was
referring to, and  unless I can determine
what the official was referring  to, then
I cannot determine  whether it's  related
to an  issue in  this case or  instead is
immaterial  to  an  issue  in  this case.
This   is   even  worse   than  receiving
reputation  evidence  or  something  like
that   that's  a   generalized  statement
that's not in point for this case.

     So,  you see the  problem I'm having
is with the notion that there are, quote,
factual findings, unquote, here  that are
material to the issues in this case.  The
mere fact that there are factual findings
in the report  doesn't make it admissible
in this case.  It  covers only one of the
aspects   concerned   with  whether   the
evidence is admissible in this case.   It
has  to be  a  factual  finding that  has
materiality  to the  issues in  this case
and I am not able  to tell from this form

                   -19-                                          19

of factual findings either  (1) precisely
what the deficiencies are or (2) how they
affected or would  affect the  likelihood
of drawing  an inference in this  case on
some issue that has  to be decided by the
factfinder in this case.

     MR. KELLEY:   Under subsection  (C),
as I understand it, that's the purpose of
allowing  a  report  on  the  part of  an
official who is  required to  investigate
and report.

     THE  COURT:   If  the official  were
required to investigate and make a report
on whether Saia acted with racial animus,
then  that  would  be  an  issue that  is
involved in  this  case, but  that's  not
what this finding is about.

     MR.  KELLEY:    No,  it  isn't, your
Honor.  It isn't offered for that.

     THE COURT:  So the finding has to be
about something that is  an issue in this
case  for it  to  be admissible  in  this
case.  I don't  receive evidence  in this
case  of any  kind, witnesses,  direct or
findings of an official, unless it's on a
matter that  is material to this case and
that's what's missing  here.  There's  no
basis on  which I can determine  that the
official here  has made a  finding on  an
issue  that  will  be  for  the  jury  to
consider in this case.

     MR.  KELLEY:    The next  paragraph,
your Honor:   "Prior statements and sworn
testimony of certain police  and civilian
witnesses   necessary   to  proving   the
Commonwealth's    case    are    directly
contradictory in material aspects."

     I  submit,  your  Honor, that's  the
province of the District Attorney.

     THE  COURT:   Well,  wait a  minute.
No, it's the province of this jury.  If I
determine that there  is -- in  receiving
evidence on  admissibility determine that

                   -20-                                          20

there are  contradictory statements, then
I  tell this  jury:   "That's for  you to
resolve,  not for anybody  else.  Not for
me, certainly not for some official other
than an official of this court."

We affirm  the court's  exclusion  of the  District

Attorney's  report for the reasons stated by the court in the

colloquy.

We  have considered carefully appellees' motion for

sanctions.  We deny it.

The judgment  of  the district  court is  affirmed.                                                                affirmed.                                                                        

Costs on appeal awarded to appellees.            Costs on appeal awarded to appellees.                                                

                   -21-                                          21
