                Not For Publication in West's Federal Reporter
               Citation Limited Pursuant to 1st Cir. Loc. R. 32.3

          United States Court of Appeals
                        For the First Circuit

No. 03-2102

                              PETER RUFFIN,

                         Plaintiff, Appellant,

                                      v.

  CITY OF BOSTON; DAVID C. WILLIAMS; JAMES GRIFFIN; PAUL EVANS;
   ANN MARIE DOHERTY; and SEVERAL UNKNOWN CITY OF BOSTON POLICE
                             OFFICERS,

                        Defendants, Appellees.


          APPEAL FROM THE UNITED STATES DISTRICT COURT
                FOR THE DISTRICT OF MASSACHUSETTS

     [Hon. Edward F. Harrington, Senior U.S. District Judge]


                                   Before

                        Boudin, Chief Judge,
                 Lynch and Lipez, Circuit Judges.


     Stephen A. Roach, with whom Roach & Wise, LLP was on brief,
for appellant.
     Eve A. Piemonte Stacey, Assistant Corporation Counsel, City of
Boston Law Department, with whom Merita A. Hopkins, Corporation
Counsel, was on brief, for appellees City of Boston, James Griffin,
Paul Evans, Ann Marie Doherty, and Several Unknown City of Boston
Police Officers.
     Scott P. Lopez, Special Assistant Corporation Counsel, with
whom Merita A. Hopkins, Corporation Counsel, was on brief, for
appellee David C. Williams.


                           September 2, 2005
             LIPEZ,    Circuit      Judge.     This    appeal    stems     from     an

excessive force claim against several Boston police officers.

Plaintiff-appellant Peter Ruffin, who suffered injuries during an

altercation with police, alleged that the officers had beaten him

without provocation and then participated in a cover-up designed to

shift attention away from their conduct and towards some incidental

property damage Ruffin had inadvertently caused while being beaten.

The case proceeded to jury trial and the jury found for the

defendant police officers.            On appeal, Ruffin mainly challenges

various evidentiary rulings and trial management decisions.                       Many

of   these   claims    were   not    preserved      below.      Having    carefully

reviewed the record of the entire trial, and concluding that Ruffin

received a fair trial, we affirm.

                                        I.

A.    Factual Background

             This case turned entirely on a factual dispute about what

actually happened in the early morning hours of May 5, 1996.                        A

total of ten witnesses to the altercation (or part of it) testified

-- five (including Ruffin himself) on behalf of Ruffin and five

(including     defendants     Williams        and    Griffin)     on     behalf     of

defendants.      Not    surprisingly,        each   witness's    version     varies

substantially from that of every other witness, and the truth is

difficult to determine.          We provide only a brief summary of the

facts, reciting them in the light most favorable to the jury's


                                        -2-
verdict.     United States v. Castellini, 392 F.3d 35, 39 (1st Cir.

2004).

             In the early morning hours of May 5, 1996, Ruffin was

with family and friends at a bar in Dorchester, Massachusetts.

Over the course of the day, Ruffin had consumed some eight beers in

eleven hours.     Ruffin's sister, Colleen O'Herlihy, also had been

drinking.     When she left to drive home, the family was concerned

that O'Herlihy had imbibed too much to drive safely, and followed

her to the parking lot.      Ruffin approached her and attempted to

persuade her not to drive.      O'Herlihy was resistant, and the two

began arguing in loud voices.    A neighbor viewed the argument from

a distance and mistakenly believed that Ruffin was attacking

O'Herlihy.     She called 911 and reported a "man beating a woman."

             Boston police officers Williams and Griffin, defendants-

appellees, responded to the 911 dispatcher and arrived at the

parking lot.     They saw Ruffin pinning O'Herlihy to the ground, and

ordered him to get off her.       As the officers attempted to pull

Ruffin off O'Herlihy, he yelled profanities and racial slurs.1        A

struggle ensued as the officers attempted to arrest and handcuff

Ruffin and he fought them.     During this scuffle, both Ruffin and

Griffin were injured, Ruffin more severely.      Ruffin's family and

friends witnessed various portions of this altercation.




     1
         Ruffin is white; Griffin and Williams are black.

                                  -3-
           One of the officers made an "officer in trouble" radio

call, and other officers responded shortly.           Ruffin was eventually

placed into the back of a police cruiser.           He continued struggling

and kicked out the rear passenger window.           The officers then moved

him to a windowless wagon for transportation to the police station.

At the station, Ruffin continued to be combative and uncooperative.

An emergency medical technician (whose treatment Ruffin refused)

noted in his log that Ruffin was intoxicated and belligerent.

B.   Procedural History

           Three years after the incident, Ruffin filed suit against

named and unknown police officers, the City of Boston, former

Police   Commissioner    Paul     Evans,   and   Superintendent      Ann   Marie

Doherty, alleging various federal and state claims. Ruffin alleged

that Williams had struck him from behind without provocation and

that the officers had then beaten him severely while he offered no

resistance.    According to Ruffin, as he was being placed into the

back of the police cruiser, Williams choked Ruffin and stuck his

thumb into Ruffin's eye with such force that Ruffin began flailing

and involuntarily kicked out the window.            Police supervisors then

used this broken window as a pretext to explain the beating and

covered up the real nature of the event.

           Ruffin's complaint alleged, inter alia, that defendants

violated his civil rights by using unreasonable force, failing to

intervene,    covering   up   a   civil    rights   violation   by    false   or


                                     -4-
misleading statements, and conspiring to cover up a civil rights

violation.   The district court severed the individual liability

claims against Williams and Griffin from the supervisory claims

against the other defendants, and the federal claims under 42

U.S.C. § 1983 from the state law claims.

           The   §   1983    claims   against   the    two   named     officers

proceeded to jury trial.      At the close of the plaintiff's case, the

court granted the defendants' motion for judgment as a matter of

law on Ruffin's cover-up and conspiracy to cover-up claims.                 The

excessive force and failure to intervene claims were submitted to

the jury, which returned verdicts for the defendants. The district

court then dismissed Ruffin's remaining federal claims against the

supervisory defendants and the City, and transferred the state law

claims to Massachusetts state court.        Ruffin timely appealed.

                                      II.

           Ruffin raises various claims on appeal, arising from

pretrial discovery rulings, evidentiary rulings at trial, the

district   court's   trial    management,   and   its     grant   of    partial

judgment as a matter of law for defendants.           We address the alleged

errors approximately in the order in which Ruffin presents them,

combining two issues that are better treated together.

A.   Admission of Thomas Finn's Report and Testimony

           While Ruffin was at the police station, Emergency Medical

Technician Thomas Finn evaluated Ruffin's injuries and offered


                                      -5-
medical treatment, which Ruffin refused.             Although by the time of

trial Finn could no longer recall the events of May 5, 1996, he had

contemporaneously recorded his observations in a brief patient care

report.         The report, besides describing Ruffin's injuries, noted

that       he   had   refused   treatment,   which    contradicted   Ruffin's

testimony that he had never been offered treatment.              The report

also noted "obvious ETOH"2 and "belligerent toward authority."

                Before trial, Ruffin moved in limine to exclude Finn's

testimony and report on the grounds that the evidence was relevant

only to an earlier claim of failure to provide medical assistance,

which Ruffin had voluntarily dismissed.              In a separate document,

Ruffin objected to the notation "belligerent towards authority."

At trial, the defense sought to put Finn on the stand and to

introduce the report into evidence.          Over Ruffin's objection, the

court permitted Finn to testify based on the report (since he had

no independent recollection) and permitted the defense to publish

the report to the jury.

                On appeal, Ruffin argues that Finn's report and testimony

based upon that report were inadmissible hearsay.                    Appellees

respond that the report was admissible under various hearsay

exceptions.        See Fed. R. Evid. 803(1) (present sense impression),

803(5) (past recollection recorded), 803(6) (business record),


       2
      "ETOH" is an abbreviation for ethyl alcohol. As Finn later
explained, the phrase "obvious ETOH" referred to his impression
that Ruffin was intoxicated.

                                       -6-
803(8)   (public   record).    Appellees   further    argue   that   any

statements by Ruffin incorporated into the report (and hence double

hearsay) are admissible under other rules.       See Fed. R. Evid.

613(b) (extrinsic evidence of prior inconsistent statement for

impeachment), 801(d)(2)(A) (admission by party opponent), 803(2)

(excited utterance),     803(3) (existing state of mind), 803(4)

(statements for purpose of medical diagnosis).       Ruffin also argues

that Finn was biased because he was a member of the Boston Police

Patrolman's Association and, by virtue of his position, sympathetic

to police officers.

           We review the district court's admission of disputed

evidence for abuse of discretion.      United States v. Flemmi, 402

F.3d 79, 86 (1st Cir. 2005).   Finn's own observations contained in

the patient care report were admissible as, at least, business

records under Rule 803(6).    Double hearsay statements by Ruffin in

that report were admissible as statements of a party-opponent under

Rule 801(d)(2)(A).    Finally, Ruffin was able to develop in cross-

examination his theory that Finn was biased towards police officers

and had a motive to falsify his report to buttress the officers'

account. Ultimately, the admissibility of the report and testimony

were quintessential discretionary calls for the trial court, and

the court did not abuse its discretion in admitting that evidence.




                                 -7-
B.   Inquiry into Williams's Job Status, Reputation, and/or Prior
     Bad Acts

          1.   The Excluded Testimony

          Before the complaint in this case was filed, Williams was

terminated from the Boston police for an unrelated incident of

alleged excessive force.3   He has not been a member of any police

force since then.

          Not surprisingly, Ruffin wished to explore Williams's

reputation, employment history, and prior excessive force history,

and Williams wished to avoid it.   The issue first surfaced during

direct examination of Ruffin himself.      Ruffin's counsel asked

whether, before May 5, 1996, Ruffin had ever seen Williams. Ruffin

started to answer that he had once seen Williams (presumably off-

duty) in a business establishment in Dorchester.        Williams's

counsel objected, and it emerged that Ruffin would testify that

Williams was wearing a shirt (presumably not official department

issue) that said words to the effect of "Boston Police, Toughest

Gang There Is." Williams's counsel again objected on the ground of

relevance, and the court sustained the objection.    The following

exchange then occurred:



     3
      In 1998, a federal civil jury found Williams liable in that
incident for, inter alia, excessive force, assault and battery,
deliberate indifference to excessive force, and deliberate
indifference to medical needs. See Cox v. City of Boston, No. 95-
12729 (D. Mass. filed Dec. 18, 1995), docket entry 420 (Dec. 22,
1998) (jury verdict).     We may take judicial notice of court
proceedings. Maher v. Hyde, 272 F.3d 83, 86 n.3 (1st Cir. 2001).

                                -8-
          MR. ROACH [Ruffin's counsel]: I'd like just to
          say one thing for the record, Your Honor. I'm
          sorry to keep you.     I'm going to put into
          evidence later on in this case, I just want
          you to know, there are -- people around
          Dorchester in the community, specifically his
          mother, other people knew Dave Williams and he
          had a reputation. I am going to try to put
          that into evidence at some point.

          MR.    LOPEZ     [Williams's    counsel]:    His
          reputation?

          MR. ROACH: Under Rule 404.

          THE COURT: I am not going to let it in because
          the issue already is narrow:    Did they beat
          him or didn't they.        His reputation is
          irrelevant because there is no extortion,
          there is no fear --

          MR. ROACH: Well, I think the defense, Your
          Honor, is going to say --

          THE COURT: Well, let's see what the defense
          does.

          MR. ROACH: Can I make an offer of proof on the
          record on this?

          THE COURT: Well, you may, but not at this
          time.

          MR. ROACH: Okay.

          The    issue   later   arose   before   Williams's   direct

examination.    Williams's counsel requested a sidebar to clarify

whether Ruffin would be able to cross-examine Williams regarding

his current job status and to object to such cross-examination as

irrelevant.    Ruffin's counsel advised the court that he wished to

"ask him if he's still employed as a police officer, yes or no,

sir, what do you do.     That is it, I'm not going to ask him about

                                 -9-
why or anything."         The court described that as "a dangerous

question," and inquired whether "the purpose of [your] asking it is

to leave the inference . . . that he was kicked out for good cause,

[because] it's prejudicial if it didn't grow out of this case."

Ruffin's   counsel   confirmed      that   Williams's   termination    was

unrelated to this case, and the court sustained the objection.

           2.    Analysis

           On   appeal,    Ruffin   challenges   the    district   court's

exclusion of inquiry into Williams's job status, disciplinary

history, and reputation.4

           First, he challenges the court's ruling preventing him

from inquiring into Williams's present job status.         He notes that

under Fed. R. Evid. 608(b), "[s]pecific instances of the conduct of

a witness, for the purpose of attacking or supporting the witness'

character for truthfulness . . . . may, . . . in the discretion of

the court, if probative of truthfulness or untruthfulness, be

inquired into on cross-examination of the witness . . . concerning

the witness' character for truthfulness or untruthfulness."           Fed.

R. Evid. 608(b).

           Ruffin's argument fails for two independent reasons.

First, he did not argue below that character for truthfulness was

a basis for the inquiry, but rather tacitly confirmed the district



     4
      He does not challenge the exclusion of the testimony about
Williams's shirt.

                                    -10-
court's suspicion that the purpose of the question was to create an

inference of propensity to engage in misconduct. Consequently, any

argument     that    the    evidence   was    admissible    under    Rule   608   is

forfeited.     See Tate v. Robbins & Myers, Inc., 790 F.2d 10, 12 (1st

Cir. 1986) ("[I]f evidence is excluded because it is inadmissible

for its only articulated purpose, the proponent of the evidence

cannot challenge the ruling on appeal on the ground that the

evidence 'could have been rightly admitted for another purpose.'")

(citation     omitted).         Second,      the   district   court      "has    wide

discretion under Rule 608(b)," Navarro de Cosme v. Hospital Pavia,

922   F.2d    926,    933    (1st   Cir.     1991),   as   well     as   Rules    402

(inadmissibility       of     irrelevant     evidence),     403   (exclusion      of

relevant evidence on grounds of prejudice), and 404(b) (exclusion

of evidence of other acts to demonstrate propensity to act in a

certain fashion). The court was entitled to find that the question

ran afoul of any or all of the above rules.                Put another way, the

inference that Ruffin wished to raise -- that because Williams had

been terminated for an unrelated incident, he was probably at fault

in this incident too -- is precisely the type of inference that the

Federal Rules of Evidence seek to prevent a party from raising.

While the specific question that Ruffin wanted to ask was not so

blatantly prejudicial that the district court was required to

exclude it, the court certainly was not required to permit it

either, and did not abuse its discretion in excluding it.


                                       -11-
          Second, Ruffin challenges the district court's exclusion

of evidence concerning Williams's reputation or prior bad acts.

Such evidence can, in appropriate circumstances, be admissible for

limited purposes.   See generally Fed. R. Evid. 404(b) (evidence of

other acts may be admissible to show, e.g., "absence of mistake or

accident"), 608(a) (impeachment by reputation for truthfulness),

608(b) (impeachment by specific instances of conduct).       On the

other hand, that type of evidence also carries the risks of unfair

prejudice, see Fed. R. Evid. 403, or being misused to demonstrate

propensity to act in a certain way, see Fed. R. Evid. 404(b).    The

balance is delicate, and courts have occasionally held that it was

erroneous to exclude such evidence.     See, e.g., Carson v. Polley,

689 F.2d 562, 571-572 (5th Cir. 1982) (reversing district court's

exclusion of performance evaluations of two deputy sheriffs stating

that they needed to control their tempers, holding that one report

was admissible under Rule 404(b) to show intent to harm plaintiff

inmate, and other was admissible under Rule 608(b)).

          We realize that evidence of other instances in which

Williams allegedly used excessive force might have been helpful to

Ruffin in swaying the jury.   However, there was also a risk that,

despite any limiting instructions, the jury would use the evidence

not just to evaluate Williams's truthfulness, but also to establish

a propensity for such conduct.   The district court was in the best

position to determine whether the risk of unfair prejudice would


                                 -12-
outweigh the legitimate uses of the evidence, and we are reluctant

to disturb its ruling given the wide latitude we accord to trial

judges in this area.       We do not find an abuse of discretion.

           Other    rulings      to   which   Ruffin     objects    are   easily

resolved. First, he argues that permitting the defense to refer to

Williams   as    "Officer"      Williams,     in   the   present    tense,    was

prejudicial to Ruffin because it created the false impression that

Williams   was     still   a    police   officer.        Since     he   did   not

contemporaneously object, we review only for plain error, Fed. R.

Evid. 103(d); Bandera v. City of Quincy, 344 F.3d 47, 55 (1st Cir.

2003), and find none.          Second, he argues that the district court

erroneously excluded evidence of Williams's reputation.5                      But,

despite the court's statement that counsel could make an offer of

proof on the record at some later point, counsel never attempted to

introduce evidence of Williams's reputation.                Since he did not




     5
      Ruffin never explained, either to the district court or in
his appellate brief, whether he meant to offer evidence of
Williams's reputation for truthfulness or his reputation for
violence. However, at trial Ruffin's counsel explained that the
basis for admitting reputation evidence was Rule 404. The only
basis under Rule 404 for admitting evidence of a civil defendant's
reputation is Rule 404(a)(3), which permits, inter alia, evidence
of a witness's character for truthfulness pursuant to Rule 608(a).
Consequently, we assume, for purposes of this appeal, that Ruffin
intended to introduce evidence of Williams's reputation for
truthfulness. Evidence of a reputation for violence would probably
not have been admissible under any rule; reputation evidence "may
refer only to character for truthfulness or untruthfulness." Fed.
R. Evid. 608(a)(1) (emphasis added).

                                      -13-
attempt to offer such evidence, he cannot complain on appeal that

it was not permitted.     See Fed. R. Evid. 103(a)(2).6

C.    Deprivation of a Fair Trial

           Ruffin asserts that various comments made by the district

court during the course of the trial, concerning the credibility of

Ruffin, one of his witnesses, his counsel, and an ultimate issue in

the case, denied Ruffin a fair trial.       Our standard of review for

such charges reflects the realities of trial management:

      Bias and improper conduct by a trial judge may be grounds
      for a new trial if a party is so seriously prejudiced as
      to be deprived of a fair trial. However, mere active
      participation by the judge does not create prejudice nor
      deprive the party of a fair trial. On appeal, we must
      consider isolated incidents in light of the entire
      transcript so as to guard against magnification on appeal
      of instances which were of little importance in their
      setting.

Deary v. City of Gloucester, 9 F.3d 191, 194 (1st Cir. 1993)

(internal quotation marks and citations omitted).

           Ruffin first claims that the district court interrupted

his   cross-examination    of   a   witness,   Sergeant   Terestre,   and


      6
      Ruffin suggests that he did not take up the court's
invitation to make an offer of proof because of the court's later
exclusion of evidence concerning Williams's job status. But if
Ruffin genuinely intended to offer evidence of Williams's
reputation for truthfulness, as opposed to a reputation for
violence, see supra note 5, then the exclusion of evidence
regarding job status had no bearing on potential reputation
evidence regarding truthfulness. Even in cases where "the court
telegraphed what its ruling was likely to be if . . . counsel
opened the door" by offering disputed evidence, we treat the matter
as forfeited if "the latter never knocked."       United States v.
Griffin, 818 F.2d 97, 103 (1st Cir. 1987).               Under the
circumstances, we see no reason to excuse the forfeiture.

                                    -14-
commented on the case in a manner that would lead the jury to

believe that the court adopted the defense version of precisely

what happened when Ruffin kicked out the window of the cruiser.

Sergeant Terestre, who was the supervisor of Williams and Griffin,

testified that he arrived in response to the "officer in trouble"

call at approximately the time that the cruiser window was kicked

out.     Part of Ruffin's theory of the case was that Sergeant

Terestre had actually arrived earlier and witnessed the initial

confrontation, but had attempted to cover up the beating and his

failure to stop it.     On cross-examination, Ruffin's counsel tried

to examine Terestre about his concern for the cruiser window to

show that it was just a ruse to divert attention from the beating.

While it is not clear from the printed transcript, it appears that

Ruffin's counsel used an unduly sarcastic tone of voice in this

examination, and the court admonished him for it.              The court also

repeatedly urged Ruffin's counsel to "move on."

            Our   review    of   the     transcript    indicates       that   the

challenged statements, taken in context, were defensible efforts to

move the cross-examination along as Ruffin's counsel attempted

without success to induce Terestre to admit that he had witnessed

a confrontation that Terestre insisted he had not witnessed.                   We

accord   considerable      deference    to    the   district   court    in    such

matters:

       The trial judge has discretion to maintain the pace of
       trial, and indeed has the responsibility to oversee the

                                       -15-
     conduct of a trial so that it moves expeditiously.
     Therefore,   encouraging   counsel   to  move   forward,
     forbidding counsel from eliciting duplicative testimony,
     or halting what the court perceived to be a waste of
     time, was firmly within the discretion of the trial
     judge.

Id. at 194-95.

          Ruffin next complains about the court's sharp admonitions

to witness Mary Flynn, who witnessed most of the altercation. Even

from the printed transcript, it is evident that Flynn was a feisty,

spirited witness with a penchant for stating her thoughts when the

question called for her observations or, indeed, when there was no

question before her.   The court's responses escalated each time

Flynn injected her opinions where none were requested.    The first

time she did this, the court simply instructed her to answer the

questions asked; the second time, it warned Ruffin's counsel to

control her; the third time, it warned Ruffin's counsel at sidebar

that if he could not control the witness, the court would declare

a mistrial; finally, having exhausted all of these measures, the

court admonished Flynn in the presence of the jury.    In reviewing

this type of trial management, "the widest possible latitude is

given to the judge on the scene."        Rodriguez v. Banco Central

Corp., 990 F.2d 7, 12 (1st Cir. 1993).      The court's handling of

Flynn fell well within that latitude.7


     7
      We also note that the court admonished Griffin when he
strayed from the question, stating at one point, "No, here is the
question, can you answer the question?         I don't want an
explanation."

                               -16-
          Finally, Ruffin complains that the court's admonishment

of counsel was unbalanced because the court, in sustaining Ruffin's

objections, did not sufficiently chastise defense counsel.     Our

review of the transcript reveals that the court's comments to

counsel for all parties were within its discretion given the nature

of the events leading to the remark, and the court displayed no

improper bias against Ruffin or his counsel.

D.   Exclusion of Boston Police Department Rule 327

          As part of his theory that Sergeant Terestre used the

breaking of the cruiser window as a convenient distraction to

divert attention from a police beating, Ruffin's counsel pressed

the point that the initial 911 call had been for domestic violence

and the police had never actually investigated domestic violence.

Ruffin sought to introduce Boston Police Department Rule 327

("Protection of Abused Persons"), which specifies procedures for

responding to domestic violence calls.   Ruffin's theory was that

Terestre had decided that it would be simpler to focus on a broken

cruiser window, rather than the comparatively daunting work of

following through with Rule 327's requirements for investigating a

domestic violence incident, and furthermore that the contents of a

properly investigated domestic violence report would show that

there had been no domestic violence incident, thus calling into

question the defendants' version of the altercation.




                               -17-
            The court permitted Ruffin to cross-examine Terestre

about Rule 327 in general terms. However, when Ruffin attempted to

mark it as an exhibit in anticipation of introducing it into

evidence, defense counsel objected and the court sustained the

objection.      Neither the defense objection nor the court's ruling

explicitly stated their grounds, but from context we can discern

three reasons for excluding Rule 327, any of which would suffice.

            The most obvious rationale for excluding Rule 327 is that

it was irrelevant.      See Fed. R. Evid. 401.    The issues remaining in

the case at that point were whether Williams and Griffin had used

excessive force or failed to intervene when another officer used

excessive force.        The contents of a police department policy on

responding to domestic violence incidents were not relevant to this

determination.8       Alternatively, if the purpose of introducing Rule

327 was to attack Sergeant Terestre's credibility by suggesting

that he had fabricated a story to avoid paperwork, the district

court     had   the   discretion   to   exclude   the   evidence   because

"[s]pecific instances of the conduct of a witness, for the purpose

of attacking or supporting the witness' character for truthfulness

. . . may not be proved by extrinsic evidence."            Fed. R. Evid.

608(b).    Finally, even if the rule arguably had some relevance, it



     8
      If the cover-up or conspiracy to cover-up claims had survived
to this point, the policy might have been relevant.         But the
district court had already properly granted judgment as a matter of
law on those claims. See infra Part III.F.

                                    -18-
was at best peripheral, and the district court had the discretion

to exclude it because "its probative value [was] substantially

outweighed by the danger of . . . confusion of the issues, or

misleading the jury, or by considerations of undue delay, waste of

time, or needless presentation of cumulative evidence."    Fed. R.

Evid. 403.    In any event, the district court did not abuse its

discretion in excluding Rule 327.

E.   Denial of Motion for Telephonic Deposition

            One of Ruffin's listed witnesses was Margaret Finnerty,

an Irish citizen and friend of Ruffin's aunt who had witnessed the

incident.    Finnerty had moved back to Ireland soon after the 1996

incident, but Ruffin had believed that she would fly to Boston to

testify in his trial, which was scheduled for June 30, 2003.

Shortly before trial, Ruffin learned that she would not, in fact,

be able to make the trip.       On June 5, 2003, he moved for a

telephonic deposition. Defendants opposed the motion, arguing that

it was untimely, procedurally defective under Fed. R. Civ. P. 28(b)

(governing foreign depositions), inappropriate for the type of

facts-on-the-ground testimony Finnerty would offer, and unjustified

because her testimony would be cumulative with that of Ruffin's

other witnesses.     On June 17, 2003, the district court denied

Ruffin's request, noting that Ruffin's motion "comes on the eve of




                                -19-
a June 30, 2003 trial and approximately nine months after the

September, 2002 close of discovery in this case."9

           We review the district court's discovery rulings for

abuse of discretion, Bogosian v. Woloohojian Realty Corp., 323 F.3d

55, 63 (1st Cir. 2003), and find no error.          The combination of (1)

the lateness of the request after the discovery deadline, (2) the

proximity of the request to the trial date, (3) the lack of

justification for not making the request earlier, (4) the potential

procedural complications of a foreign deposition under Fed. R. Civ.

P. 28(b), (5) Ruffin's apparent failure to recognize that such

issues even existed, and (6) the fact that Finnerty's testimony,

while likely helpful to Ruffin, was not indispensable, provided an

adequate   basis   for   the   court,   in   the   exercise   of   its   broad

discovery management discretion, to deny the request.

F.   Dismissal of Cover-Up and Conspiracy Claims

           At the close of Ruffin's case in chief, defendants moved

for judgment as a matter of law under Fed. R. Civ. P. 50(a).              The

district court granted that motion in part and denied it in part,

finding that Ruffin had advanced a sufficient evidentiary basis for

his excessive force and failure to intervene claims, but not for

his cover-up and conspiracy to cover-up claims.          Ruffin challenges



     9
      Ruffin argues that some additional discovery was permitted
after the formal deadline. However, that fact did not deprive the
court of the ability to enforce that deadline as to other types of
discovery.

                                   -20-
this ruling on appeal.        We review the district court's grant of

judgment as a matter of law de novo.           Guilloty Perez v. Pierluisi,

339 F.3d 43, 50 (1st Cir. 2003).

            Our review indicates that the district court was exactly

right in granting the motion on the cover-up and conspiracy claims

but   not   the   excessive   force   or     failure   to    intervene   claims.

Ruffin's witnesses testified almost exclusively as to the events of

the arrest and altercation itself.           Not one scintilla of evidence

regarding a cover-up or conspiracy was adduced.               On appeal, Ruffin

does not attempt to refute this point.                 Instead, he discusses

largely irrelevant procedural circumstances.                We find no error in

the court's ruling.

            Affirmed.




                                      -21-
