
USCA1 Opinion

	




          February 10, 1994     [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                                 ___________________          Nos. 93-1356               93-1672                                               NAZZARO SCARPA,                                Plaintiff, Appellant,                                          v.                                  NICHOLAS SAGGESE,                                 Defendant, Appellee.                                  __________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                 ___________________                                        Before                             Torruella, Boudin and Stahl,                                   Circuit Judges.                                   ______________                                 ___________________               Nazzaro Scarpa on brief pro se.               ______________               Albert W. Wallis, Corporation Counsel  and William J. Walsh,               ________________                           ________________          Assistant Corporation Counsel, on brief for appellee.                                  __________________                                  __________________                 Per Curiam.   Nazzaro  Scarpa sued  Nicholas Saggese,  a                 __________            Boston police officer,  alleging that Saggese used  excessive            force  in arresting and  detaining him on  March 1,  1988.  A            jury found for Saggese.  Scarpa appeals.  He also appeals the            subsequent denial of a motion to reconsider the denial of his            motion for a new trial.  We affirm.                 1.   There  was no abuse  of discretion in  the district            court's refusal to continue  the trial pending the filing  of            an appearance by counsel for Scarpa.  Scarpa indicated trial-            readiness in April 1992, by  asking for assignment of a trial            date.  His request was granted and the case was placed on the            court's running trial list as of September 1992.  On March 9,            1993, the  case was  called for March  15.   Despite Scarpa's            April 1992 assertion that he  was ready for trial, it appears            that he  thereafter attempted  to obtain  counsel.  But,  the            earliest indication of interest in the case by an attorney is            mid-February  1993.     There  is  no  explanation   for  the            incongruity of asserting trial-readiness while simultaneously            attempting to obtain counsel, who most assuredly would seek a            continuance.  Further, there is  no explanation for the delay            until mid-February.                 Moreover, the  interest expressed by  Scarpa's potential            counsel was  tentative  at  best.   Counsel  never  filed  an            appearance in the  case.  Counsel apparently was unwilling to            enter  an  appearance  prior  to  a  court order  granting  a                                         -2-            continuance.   The  court did  not  abuse its  discretion  in            declining to continue this trial, initially pressed by Scarpa            eleven  months earlier,  in the absence  of an  appearance by            counsel and  in the face  of such a tentative  and contingent            expression of interest.                 2.   Contrary to Scarpa's contention, the district court            cannot  be faulted for  failing to  secure the  attendance of            certain witnesses who, despite a reasonable attempt, were not            found.  Scarpa  argues that  the witnesses  should have  been            served  with subpoenas "months  before trial" or  a "subpoena            card" should have been left at their addresses.  One does not            issue an open-ended  subpoena for attendance  at trial.   The            subpoena  must  recite  the specific  trial  date,  for which            attendance  is required.   "Every subpoena shall  ... command            each  person  to whom  it  is  directed  to attend  and  give            testimony ... at  a time and place therein  specified."  Fed.            R. Civ.  P. 45(a)(1)(C).   The trial date  was not  set until            March 9.   Moreover, a  subpoena cannot be left  at someone's            home;  it must be  served upon the  person.  Fed.  R. Civ. P.            45(b)(1); see  also 9 Charles  A. Wright & Arthur  R. Miller,                      _________            Federal Practice and Procedure   2461 at 447 (1971).                 Scarpa  moved for  a new  trial on  the ground  that the            marshals'  service had not made a  reasonable effort to serve            his  witnesses, submitting  a letter  from  Attorney Paul  F.            Murphy, dated April 26, 1993.   The district court  correctly                                         -3-            denied this motion as  untimely.  See  Fed. R. Civ. P.  59(b)                                              ___            (motion shall be  served not later than ten  days after entry            of  judgment).  The court subsequently denied Scarpa's motion            to reconsider.                 On his appeal from this denial, Scarpa contends that his            motion should be construed as a Rule 60(b)(2) motion based on            newly discovered evidence.  This is unavailing.   Scarpa knew            at trial that the marshals had been unable to effect service.            The information provided  in Attorney Murphy's letter  is not            newly discovered  in a Rule  60(b)(2) sense, i.e., it  is not            "newly discovered evidence  which by due diligence  could not            have been discovered in  time to move  for a new trial  under            Rule 59(b)."   And, in  any event, the  information contained            therein  is not  inconsistent  with, or  cast  doubt on,  the            reasonableness  of the  attempted service.   Attorney  Murphy            reiterates that Ms. Carrillo was away at the time of Scarpa's            trial  and, as  for Ms.  McDermatt, the marshals'  failure to            serve her appears to  have resulted from Scarpa's  failure to            provide them  with a correct  spelling of both her  first and            last names and a correct address.                 3.   Scarpa  argues that the court should have granted a            mistrial when Officer LoPriore, Saggese's partner, apparently            unwittingly,  violated  a  witness  sequestration  order   by            remaining  in  the  courtroom   during  Saggese's  testimony.            Determination   of  a   sanction  for   a   violation  of   a                                         -4-            sequestration order  is within  the sound  discretion of  the            trial court.  United States  v. Arias-Santana, 964 F.2d 1262,                          _____________     _____________            1266  (1st Cir. 1992).   In this  case, the  court barred the            testimony of  a second witness  who also had  heard Saggese's            testimony,  allowed Scarpa  to ask  LoPriore  whether he  had            memorized Saggese's responses, and  stated that Scarpa  could            argue this  inference to  the jury.   There was  no abuse  in            discretion in refusing to grant a mistrial.                 4.   The  record  does not  support  Scarpa's allegation            that  the  jury was  coerced  into  returning  a verdict  for            Saggese by  the modified  Allen charge,  see Allen  v. United                                      _____          ___ _____     ______            States, 164  U.S. 492  (1896), given by  the court  after the            ______            jury  indicated that  it could  not  reach a  decision.   See                                                                      ___            United  States v.  Nichols,  820 F.2d  508, 511-12  (1st Cir.            ______________     _______            1987)  (approving substantially the same charge in a criminal            case);  9  Charles  A.  Wright &  Arthur  R.  Miller, Federal            Practice  and Procedure    2556  at 663 (1971)  (the modified            Allen charge may be properly given in a civil case).            _____                 Affirmed.                 _________                                         -5-
