
<head>

<title>USCA1 Opinion</title>



	<style type="text/css" media="screen, projection, print">



		<!--

		@import url(/css/dflt_styles.css);

		-->

	</style>

</head>

<body>

<p align=center>

</p><br>

<pre>                  United States Court of Appeals <br>                      For the First Circuit <br>                       ____________________ <br>                                                        <br> <br>No. 96-1425 <br> <br>                          LESTER OLSEN, <br> <br>                      Plaintiff, Appellant, <br> <br>                                v. <br> <br>                WILLIAM CORREIRO, ALAN SILVIA, and <br>                    THE CITY OF FALL RIVER, <br> <br>                      Defendants, Appellees. <br>                                    <br>                       ____________________ <br> <br>                     <br>           APPEAL FROM THE UNITED STATES DISTRICT COURT <br> <br>                FOR THE DISTRICT OF MASSACHUSETTS <br> <br>            [Hon. Patti B. Saris, U.S. District Judge] <br> <br>                       ____________________ <br>                          <br>                              Before <br> <br>                      Boudin, Circuit Judge, <br>                 Bownes, Senior Circuit Judge, <br>                   and Lynch, Circuit Judge. <br>                       ____________________ <br> <br> <br>          John H. Cunha, Jr., with whom Helen Holcomb, Charles <br>Allan Hope, Cunha & Holcomb, P.C., and Professor Kent B. Greenfield <br>were on brief, for appellant. <br>                    Arthur D. Frank, Jr. for appellee William Correiro. <br>          Andrew B. Peppard, with whom Borders, Littman & Peppard <br>was on brief, for appellee Alan Silvia. <br>          Thomas F. McGuire, Jr., Corporation Counsel, for appellee <br>City of Fall River. <br>      <br> <br>                       ____________________ <br>                          <br>                        August 30, 1999 <br>                      ____________________ <br>          LYNCH, Circuit Judge.  On May 13, 1986, Lester Olsen was <br>convicted of the first-degree murder of Harold Fernandes and was <br>sentenced to life in prison without the possibility of parole.  <br>Approximately five years later, a Massachusetts court overturned <br>his conviction, a ruling that was based on the investigating police <br>officers' failure to disclose an audiotaped interview with the <br>prosecution's chief witness, and ordered a new trial.  Olsen was <br>released from prison on bail pending the new trial.   <br>          On February 21, 1992, rather than go through another <br>murder trial, Olsen pled nolo contendere to a charge of <br>manslaughter and was convicted of that crime.  The prosecution  <br>agreed to recommend a sentence of time served.  Although the state <br>judge questioned whether this sentence was sufficiently severe, <br>Olsen was sentenced to the time he had already served for the <br>original conviction, the balance of the ten- to fifteen-year <br>manslaughter sentence was suspended, and he was placed on probation <br>for five years. <br>          Olsen then sued the City of Fall River and two police <br>officers, William Correiro and Alan Silvia, under 42 U.S.C.  1983 <br>for damages arising from the murder charge and conviction.  His <br>complaint was primarily focused on obtaining damages for his <br>imprisonment.  The jury awarded him $1.5 million in compensatory <br>damages.  The district court overturned this award under Heck v. <br>Humphrey, 512 U.S. 477 (1994), and ordered a new trial on damages.  <br>At that trial, evidence of injury arising from Olsen's <br>incarceration was excluded, but evidence of other damages <br>associated with his murder trial and conviction was permitted.  The <br>second jury awarded $6000 in damages.  In this appeal, Olsen seeks <br>the reinstatement of the first jury's damage award. <br>          In affirming the district court's decision and the <br>resulting judgment, we do not reach the grounds on which the <br>district court relied, but rather affirm on other grounds.  The <br>first question presented in this case is whether evidence of the <br>manslaughter conviction and sentence that resulted from Olsen's <br>nolo plea should have been admitted into evidence.  We conclude <br>that the evidence of the conviction and sentence should have been <br>admitted; the admission of this evidence is not prohibited by the <br>applicable evidentiary rules and policy considerations fail to <br>justify a reading of those rules to exclude this evidence.  The <br>second question presented is what effect the manslaughter <br>conviction and sentence for time served have on Olsen's efforts <br>under  1983 to recover damages for his imprisonment.  We conclude <br>that incarceration-based damages are barred. <br>I <br>          Olsen brought his federal civil rights action in April <br>1992, alleging that, as a result of the defendants' actions <br>relating to the murder charge, he "endured loss of liberty, mental <br>suffering, humiliation, and emotional trauma from the improper <br>incarceration and conviction," and "was deprived of any means of <br>earning a living" during the time he was incarcerated.  He <br>requested an award of $1,911,000 "representing 1,911 days illegally <br>in custody."  The defendants' answers raised Olsen's manslaughter <br>conviction resulting from the nolo plea as an affirmative defense.  <br>The City of Fall River, for instance, stated that "[a]s the <br>[p]laintiff has been convicted of a lesser included offense of the <br>original murder indictment and has had credited the period of <br>incarceration of approximately five (5) years, [p]laintiff is not <br>entitled to damages based upon the period of incarceration <br>identified with the conviction for manslaughter." <br>          Before trial, Olsen filed a motion in limine to "exclude <br>the admission of evidence of plaintiff's nolo contendere plea in <br>the state criminal case," and the defendants filed motions, opposed <br>by Olsen, seeking admission of the conviction and sentence imposed <br>as a result of the nolo plea, arguing that "[p]laintiff's <br>incarcerations to the prison term for which he seeks damages in <br>this action are admissible as substantive evidence on the issue of <br>damages."  In support of their motions, the defendants proffered <br>the transcript of the hearing at which Olsen pled nolo and the <br>court imposed sentence.  The federal district judge decided that <br>any evidence pertaining to the nolo plea and its consequences would <br>not be placed before the jury, and also excluded any references to <br>the state court order allowing Olsen a new criminal trial.  The <br>jury thus did not know that Olsen had been granted a new state <br>criminal trial after his initial conviction, had pleaded nolo <br>rather than go to trial again, had been accordingly convicted of <br>manslaughter, and had been sentenced to time served plus probation.  <br>          On March 17, 1994, the jury held all three defendants <br>liable, finding that Correiro and Silvia each failed to produce <br>exculpatory evidence, that they conspired together to suppress the <br>evidence and to give false or substantially misleading testimony <br>before the grand jury, and that the City's customs and practices <br>amounted to deliberate indifference to Olsen's constitutional <br>rights, all resulting in the murder conviction.  This first jury <br>awarded Olsen $1.5 million in compensatory damages but awarded no <br>punitive damages. <br>          After trial, defendants filed motions for judgments as a <br>matter of law, motions for a new trial, and motions for remittitur.  <br>Defendants Correiro and Silvia also renewed motions in limine in <br>which they argued that the conviction and sentence imposed pursuant <br>to the nolo plea barred plaintiff's action for compensatory damages <br>as a matter of law (and further proffered the docket sheet of the <br>Massachusetts court, which records the manslaughter sentence). <br>          The district judge granted defendants' motions for <br>judgment as a matter of law on September 26, 1994 and substituted <br>$300 in "nominal" damages for the jury's award.  The court stated <br>that "[t]he central issue . . . is whether a voluntary plea of nolo <br>contendere to a state manslaughter charge, pursuant to which Olsen <br>is lawfully sentenced to 'time served,' precludes him from <br>recovering damages, under  1983, for an incarceration which had <br>originally been imposed pursuant to an earlier unlawful conviction <br>and sentence."  The court's resolution of this issue was based on <br>its analysis of Heck, which was decided while the post-trial <br>motions were under advisement.  The court rejected the argument <br>that the damages suffered as a result of the incarceration were <br>solely due to the invalidated conviction, explaining that "Olsen <br>cannot escape the fact that his sentence of incarceration was re- <br>imposed validly, albeit retroactively, and  1983 does not allow a <br>claim for damages based on a lawful confinement." <br>          The court justified its consideration of the manslaughter <br>conviction and sentence by explaining that a nolo plea, like a <br>guilty plea, results in a valid conviction under Massachusetts law.  <br>According to the court, Federal Rule of Evidence 410 does not <br>change this result: "While [Rule] 410(2) prevents the introduction <br>in evidence of a nolo plea in a subsequent civil proceeding, it has <br>no effect on the validity of the outstanding criminal judgment."  <br>Additionally, the court stated that Olsen was not forced to enter <br>the nolo plea bargain and that he knew about the formerly withheld <br>audiotape evidence at the time he made the plea. <br>          While concluding that Heck barred Olsen from making a <br>claim for any damages that resulted from his incarceration and that <br>these were essentially the only damages Olsen had demonstrated at <br>trial, the court noted that Heck did not bar damages "which do not <br>derive from the lawful sentence imposed pursuant to the subsequent <br>manslaughter conviction," such as punitive damages based on the <br>invalidated murder conviction, legal fees associated with the first <br>trial, and emotional injury arising from the defendants' <br>misconduct.  The court further found that Olsen's nolo plea did not <br>bar these limited categories of damages as a matter of res judicata <br>or collateral estoppel, since Massachusetts does not consider <br>guilty pleas to have preclusive effect and a plea of nolo is <br>unlikely to have greater preclusive effect than a guilty plea. <br>          On October 11, 1994, Olsen filed motions for <br>reconsideration and, in the alternative, for a new trial as to <br>damages.  He argued that Heck was inapplicable to the facts of his <br>case and that the manslaughter sentence and conviction were <br>inadmissible under Massachusetts law because they were rendered <br>pursuant to a nolo plea.  He also argued that there was evidence at <br>trial of compensatory damages stemming from "the initial wrongful <br>indictment and conviction," including emotional injury that was <br>"[s]eparate and distinct from Olsen's damages resulting from the <br>day-to-day incarceration."  According to Olsen, given the court's <br>analysis of Heck, a new trial was necessary to determine the amount <br>of damages flowing from the invalidated murder conviction and to <br>give him another chance at an award of punitive damages.  Olsen <br>further moved to amend his complaint "to conform to the evidence <br>adduced at the trial" and "to include as an element of damages <br>attorneys fees in the amount of $5,000.00 paid to Attorney Joseph <br>Callahan to represent the plaintiff at the constitutionally tainted <br>trial." <br>          On February 3, 1995, the court denied the motion for <br>reconsideration but granted the motion to amend the complaint and <br>the motion for a new trial on damages.  The court stated that the <br>new jury could consider punitive damages and that "plaintiff may <br>present evidence to establish the 1986 attorney's fee, in addition <br>to evidence of emotional damages, and any other evidence concerning <br>damages caused by the first trial and conviction," but that any <br>loss of earnings was "not compensable here to the extent that [it] <br>. . . was caused by the lawful incarceration." <br>          In February 1996, the new jury in the damages trial <br>awarded Olsen $5000 in compensatory damages and $1000 in punitive <br>damages ($500 from each individual defendant).  Olsen now appeals, <br>seeking to reinstate his original and substantially larger <br>compensatory damages award. <br>                               II <br>A.  Admissibility of Conviction and Sentence Pursuant to Nolo Plea <br> <br>          Olsen argues that the district judge's initial ruling <br>that the manslaughter plea, sentence, and conviction were <br>inadmissible should have precluded the judge from considering that <br>evidence in ruling on the defendants' post-trial motions.  Although <br>the parties disagree as to the terms and scope of this initial <br>ruling, it is not necessary for us to determine the exact grounds <br>for the district court's exclusion of this evidence.  The <br>admissibility issue was squarely presented to us and to the <br>district court.  "[A]n appellate court is not restricted by the <br>district court's rulings of law, but is 'free, on appeal, to affirm <br>[the] judgment on any independently sufficient ground.'"  Hope <br>Furnace Assocs. v. FDIC, 71 F.3d 39, 42 (1st Cir. 1995) (quoting <br>Polyplastics, Inc. v. Transconex, Inc., 827 F.2d 859, 860-61 (1st <br>Cir. 1987)).  Here the evidentiary questions are primarily <br>questions of law about the interpretation of the Federal Rules of <br>Evidence, which we review de novo in any event.  See United States <br>v. Sposito, 106 F.3d 1042, 1046 (1st Cir. 1997) ("The proper <br>interpretation of the Federal Rules of Evidence is a question of <br>law and is reviewed de novo, but the application of [a rule] . . . <br>is reviewed under an abuse-of-discretion standard." (citations <br>omitted)); see also Cusumano v. Microsoft Corp., 162 F.3d 708, 713 <br>(1st Cir. 1998) ("[A]mple authority supports the proposition that, <br>whatever the procedural context, pure questions of law warrant de <br>novo review.").   <br>          Olsen has three bases for his argument that nothing <br>pertaining to the nolo plea and its consequences was admissible or <br>could be considered by the district court.  It is forbidden, he <br>says, by Federal Rules of Evidence 410 and 803(22) and by <br>Massachusetts law.  In essence, Olsen's claim amounts to a <br>contention that a valid judgment rendered by a court is <br>inadmissible in a later court proceeding.  Whether such a <br>proposition can be true, it is not true here.  The evidentiary <br>rules that exclude evidence of nolo pleas do not directly apply to <br>the convictions and sentences that result from such pleas.  And the <br>policy against using evidence of a nolo plea to prove any element <br>of the underlying crime is not applicable here, where evidence of <br>the sentence and conviction is admissible to demonstrate that Olsen <br>was imprisoned pursuant to a valid sentence.  <br>     1.  Rule 410 <br>          Olsen claims that Rule 410 bars the admission of any <br>evidence of his nolo plea, conviction, or sentence.  Rule 410 <br>states: <br>          Except as otherwise provided in this rule, evidence of the <br>     following is not, in any civil or criminal proceeding, <br>     admissible against the defendant who made the plea or was a <br>     participant in the plea discussions: . . . a plea of nolo <br>     contendere; . . . any statement made in the course of any <br>     proceedings under Rule 11 of the Federal Rules of Criminal <br>     Procedure or any comparable state procedure regarding . . . [a <br>     nolo plea]; or . . . any statement made in the course of plea <br>     discussions with an attorney for the prosecuting authority <br>     which do not result in a plea of guilty or which result in a <br>     plea of guilty later withdrawn. <br> <br>Fed. R. Evid. 410.  <br>          The text of the rule does not support Olsen's argument.  <br>Only the nolo plea itself is barred by the relevant language of the <br>rule.  See Myers v. Secretary of Health and Human Servs., 893 F.2d <br>840, 843 (6th Cir. 1990) (noting that Rule 410 and Rule 11(e)(6) <br>"prohibit use of 'a plea of nolo contendere,' not a conviction <br>pursuant to a nolo plea"). <br>          The reasons behind a rule making the nolo plea <br>inadmissible are readily apparent.  First, although nolo pleas have <br>been characterized in a number of different ways, see 21 Am. Jur. <br>2d Criminal Law  727 (1998), in most jurisdictions, including <br>Massachusetts, a nolo plea is not a factual admission that the <br>pleader committed a crime.  Rather, it is a statement of <br>unwillingness to contest the government's charges and an acceptance <br>of the punishment that would be meted out to a guilty person.  See, <br>e.g., North Carolina v. Alford, 400 U.S. 25, 36 & n.8 (1970) <br>("Throughout its history . . . the plea of nolo contendere has been <br>viewed not as an express admission of guilt but as a consent by the <br>defendant that he may be punished as if he were guilty and a prayer <br>for leniency."); Thomas v. Roach, 165 F.3d 137, 144 (2d Cir. <br>1999); Fisher v. Wainwright, 584 F.2d 691, 693 n.3 (5th Cir. 1978); <br>Commonwealth v. Ingersoll, 14 N.E. 449, 450 (Mass. 1888).  This is <br>the main reason that a nolo plea is treated differently than a <br>guilty plea, which is an express admission of guilt by the pleader <br>and is therefore admissible in subsequent proceedings.  See Fed. <br>R. Evid. 410 advisory committee's notes, 1972 proposed rules ("The <br>present rule gives effect to the principal traditional <br>characteristic of the nolo plea, i.e. avoiding the admission of <br>guilt which is inherent in pleas of guilty."); Fed. R. Crim. P. <br>11(e)(6) advisory committee's notes, 1974 amendment ("A plea of <br>nolo contendere is, for purposes of punishment, the same as the <br>plea of guilty. . . .  Unlike a plea of guilty, however, [a nolo <br>plea] cannot be used against a defendant as an admission in a <br>subsequent criminal or civil case. . . . A defendant who desires to <br>plead nolo contendere will commonly want to avoid pleading guilty <br>because the plea of guilty can be introduced as an admission in <br>subsequent civil litigation."); see also Blohm v. Commissioner of <br>Internal Revenue, 994 F.2d 1542, 1554 (11th Cir. 1993) ("A guilty <br>plea is more than a confession which admits that the accused did <br>various acts. . . . A guilty plea is distinct from a plea of nolo <br>contendere.  A guilty plea is an admission of all of the elements <br>of a formal criminal charge."  (citations and internal quotation <br>marks omitted)); United States v. Williams, 642 F.2d 136, 139 (5th <br>Cir. Unit B Apr. 8, 1981). <br>          A second reason behind Rule 410's exclusion of nolo pleas <br>is a desire to encourage compromise resolution of criminal cases.  <br>See Williams, 642 F.2d at 139; United States v. Grant, 622 F.2d <br>308, 312 (8th Cir. 1980); Leonard, The New Wigmore: A Treatise on <br>Evidence, Selected Rules of Limited Admissibility,  5.4.4, at <br>5:49, 5:52 & n.48 (1998); cf. Fed. R. Evid. 410 advisory <br>committee's notes, 1972 proposed rules ("Exclusion of offers to <br>plead guilty or nolo has as its purpose the promotion of <br>disposition of criminal cases by compromise."); Fed. R. Crim. P. <br>11(e)(6) advisory committee's notes, 1979 amendment (noting the <br>importance of plea bargaining).  The reach of this policy rationale <br>has limits, of course; the plain language of the rule reflects <br>Congress's balancing of the promotion of compromise against the <br>admission of relevant evidence.  Cf., e.g., United States v. <br>Cusack, 827 F.2d 696, 697-98 (11th Cir. 1987) (stating that the <br>fruits of plea discussions are not barred by Rule 11(e)(6), since <br>such a rule would go beyond the balance of values struck by <br>Congress).  <br>          These reasons for excluding the nolo plea itself could <br>well, on other facts, be applicable to the conviction and sentence <br>that result from the nolo plea.  If such convictions and sentences <br>were offered for the purpose of demonstrating that the pleader is <br>guilty of the crime pled to, then the nolo plea would in effect be <br>used as an admission and the purposes of Rule 410 would be <br>undermined.  See Leonard, supra,  5.8.3, at 5:103-04 (noting that <br>when offered to prove the underlying facts the judgment should be <br>excluded to "effectuat[e] the policy behind the nolo plea and the <br>plea exclusionary rule itself"); Shipley, Conviction or Acquittal <br>as Evidence of the Facts on Which It Was Based in Civil Action, 18 <br>A.L.R.2d 1287  5 (1951 & 1999 Supp.) ("Since the plea of nolo <br>contendere, while admitting guilt for the purposes of the action in <br>which it is entered, restricts its effect to that action, it has <br>been held that evidence of a conviction upon such a plea is not <br>admissible . . . as evidence of the facts admitted by the plea."  <br>(footnote omitted)); 2 Weinstein, Weinstein's Federal Evidence,  <br> 410.06[3], at 410-17, -18 (2d ed. 1998) (stating that a <br>conviction based on a nolo plea "is ordinarily excluded when <br>offered as substantive evidence of the facts underlying the <br>crime").  But that is not our case: the evidence here is not being <br>offered to prove guilt. <br>          There is a line of cases permitting the use of <br>convictions that follow from nolo pleas.  These cases, which <br>distinguish between the plea and the conviction, primarily involve <br>statutes that attach some consequence to the fact of a "conviction" <br>(such as multiple-offender statutes).  See, e.g., Myers, 893 F.2d <br>at 843-44 (admitting evidence of a nolo conviction as proof of the <br>facts underlying the crime on the grounds that Rule 410 and Rule <br>11(e)(6) do not apply in an administrative proceeding and that <br>proof of a nolo conviction has been admitted in a variety of cases, <br>especially those where "a statute or judicial rule attaches legal <br>consequences to the fact of a conviction"); Pearce v. United States <br>Dep't of Justice, Drug Enforcement Admin., 836 F.2d 1028, 1029 (6th <br>Cir. 1988) (interpreting "conviction" as used in 21 U.S.C.  824 to <br>include a conviction based on a nolo contendere plea, since <br>"[n]otwithstanding Rule 410, a conviction pursuant to a nolo <br>contendere plea is a conviction within the meaning of the statute <br>and gives rise to a variety of collateral consequences in <br>subsequent proceedings"); Crofoot v. United States Gov't Printing <br>Office, 761 F.2d 661, 665 (Fed. Cir. 1985) (upholding the use of a <br>conviction pursuant to an Alford plea in a Merit Systems Protection <br>Board review of an employee's removal by analogizing to cases <br>permitting the use of convictions pursuant to nolo pleas); see also <br>Fed. R. Crim. P. 11(e)(6) advisory committee's notes, 1974 <br>amendment ("A judgment upon the plea is a conviction and may be <br>used to apply multiple offender statutes."). <br>          There is some criticism of these cases to the effect that <br>they do, in the end, turn on the significance of the facts that <br>normally underlie a conviction of the crime at issue.  Whether or <br>not this criticism is well taken, it is not applicable when the <br>conviction and sentence are used to show nothing more than the fact <br>of a valid sentence and conviction.  Introduction of the <br>manslaughter sentence and conviction in this case was not sought to <br>prove that Olsen actually committed manslaughter, or to suggest <br>that he was actually guilty of a criminal act.  Instead, the <br>sentence was primarily offered to counter Olsen's claim for <br>incarceration-based damages by showing that he was incarcerated for <br>something other than the murder conviction.  In this context, the <br>reason for the punishment, the existence of underlying culpability, <br>is irrelevant.  It is the existence of the punishment (which, given <br>the "time served" sentence, cannot be proved through prison records <br>or by any other means) that matters. <br>          Accordingly, there is no reason here to expand Rule 410 <br>beyond the scope of its plain language, which in relevant part <br>encompasses only nolo pleas.  See United States v. Rutkowski, 814 <br>F.2d 594, 599 (11th Cir. 1987) (declining to expand Rule 11(e)(6) <br>to cover evidence discovered as the fruit of a plea negotiation and <br>stating that it is up to Congress to change the scope of the rule); <br>United States v. Davis, 617 F.2d 677, 683, 686 (D.C. Cir. 1979) <br>(noting that the court must consider Rule 11(e)(6)'s "underlying <br>policies as well as its words, for intention prevails over the <br>letter, and the letter must if possible be read so as to conform to <br>the spirit," and concluding that, "[b]ecause exclusion here would <br>not serve the purposes for which [R]ule 11(e)(6) was adopted, we <br>hold that the rule does not apply in the situation now before us").  <br>Rule 410 therefore does not bar the admission of Olsen's <br>manslaughter sentence and conviction to prove that he was <br>incarcerated for murder and for another legal reason.  <br>     2.  Rule 803(22) <br>          Olsen also contends that Rule 803(22), one of the <br>exceptions to the hearsay rule, acts as an affirmative bar to the <br>admission of a conviction imposed pursuant to a nolo plea.  Rule <br>803(22) provides: <br>          The following are not excluded by the hearsay rule, even <br>     though the declarant is available as a witness: . . . Evidence <br>     of a final judgment, entered after a trial or upon a plea of <br>     guilty (but not upon a plea of nolo contendere), adjudging a <br>     person guilty of a crime punishable by death or imprisonment <br>     in excess of one year, to prove any fact essential to sustain <br>     the judgment, but not including, when offered by the <br>     Government in a criminal prosecution for purposes other than <br>     impeachment, judgments against persons other than the accused.  <br>     The pendency of an appeal may be shown but does not affect <br>     admissibility. <br> <br>Fed. R. Evid. 803(22).  The advisory committee's note to this <br>subsection explains that it is intended to harmonize with Rule 410:  <br>"Judgments of conviction based upon pleas of nolo contendere are <br>not included.  This position is consistent with the treatment of <br>nolo pleas in Rule 410 and the authorities cited in the Advisory <br>Committee's Note in support thereof."  Id. advisory committee's <br>note to 803(22), 1972 proposed rules. <br>          As an initial matter, it is not obvious that Rule 803(22) <br>can be interpreted to bar any evidence; the rule merely says that <br>certain evidence of judgments is not barred by the hearsay rule and <br>that this exception does not apply to judgments entered upon a nolo <br>plea.  Evidence of a final judgment that does not fall within this <br>exception to the hearsay rule could still be admissible, either <br>because it is not being offered for the truth of the matter <br>asserted or because it falls within some other hearsay exception.  <br>See Hinshaw v. Keith, 645 F. Supp. 180, 182 (D. Me. 1986) ("Rule <br>803(22) is not a rule of exclusion, but rather an exception to the <br>broad exclusionary rule known as the hearsay rule."); cf. Hancock <br>v. Dodson, 958 F.2d 1367, 1372 (6th Cir. 1992); United States v. <br>Martinez, 775 F.2d 31, 37 (2d Cir. 1985). <br>          Even assuming that the rule does act as an affirmative <br>bar with respect to some final judgments entered "upon a plea of <br>nolo contendere," that bar would not be applicable in Olsen's <br>case.  Only evidence of such a judgment offered, as required by the <br>rule, "to prove any fact essential to sustain the judgment" would <br>be barred by Rule 803(22).  The condition is not met here.  The <br>defendants did not offer Olsen's manslaughter sentence on the <br>damages issue to prove that he committed manslaughter; they offered <br>it to show that he was legally punished in a way that is relevant <br>to his claim for incarceration-related damages.  Rule 803(22) does <br>not bar such a use.  See United States v. Breitkreutz, 977 F.2d <br>214, 221 (6th Cir. 1992) ("Rule 803(22) is not applicable where the <br>judgment of previous conviction of a person other than the accused <br>is not offered to prove a fact essential to sustain the judgment."  <br>(citing United States v. Wilson, 690 F.2d 1267, 1275 n.2 (9th Cir. <br>1982)).  The rule "reaches convictions as proof of underlying facts <br>and does not apply to convictions that are important as facts in <br>themselves and as indicators of the official disposition of the <br>convicted person."  4 Mueller & Kirkpatrick, Federal Evidence, <br> 472, at 660 (2d ed. 1994). <br>          Olsen argues in passing in his opening brief that, even <br>if this court does not construe Rule 803(22) to affirmatively bar <br>the introduction of the manslaughter conviction and sentence, "no <br>other exception to the hearsay rule which would allow admission of <br>this evidence was offered by the defendants below."  We will assume <br>dubitante that Olsen made a generalized hearsay objection in the <br>district court, see United States v. Mulinelli-Navas, 111 F.3d 983, <br>989 (1st Cir. 1997); United States v. Zannino, 895 F.2d 1, 17 (1st <br>Cir. 1990); United States v. Wyatt, 762 F.2d 908, 909-10, 912 (11th <br>Cir. 1985), and further assume that the materials proffered by the <br>defendants to prove the "time served" sentence can be characterized <br>as hearsay.  The evidence is still admissible under the public <br>records exception, Fed. R. Evid. 803(8)(A).  See United States v. <br>Romero, 32 F.3d 641, 649-50 (1st Cir. 1994) (accepting Secretary of <br>State's certification that a vessel was stateless under Rule <br>803(8)(A) since it "was a statement by a public agency setting <br>forth a routine activity of that agency"); see also United States <br>v. Lechuga, 975 F.2d 397, 399 (7th Cir. 1992); United States v. <br>Vidaure, 861 F.2d 1337, 1341 (5th Cir. 1988).  When offered to show <br>the fact of conviction rather than underlying guilt "a judgment <br>readily fits the public records exception."  4 Mueller & <br>Kirkpatrick, supra,  472, at 660.  But cf. Nipper v. Snipes, 7 <br>F.3d 415, 417-18 (4th Cir. 1993) (holding that "judicial findings <br>of fact are not public records within the meaning of Rule <br>803(8)(C)" and stating that "when the drafters of the Federal Rules <br>of Evidence wanted to allow the admission of judgments or their <br>underlying facts, they did so expressly"). <br>          Indeed, the materials have such a high degree of <br>reliability and trustworthiness for the purpose of proving the <br>judicial act of imposing sentence (rather than for the purpose of <br>proving that Olsen committed manslaughter) that the relevant facts <br>could be the subject of judicial notice.  See Fed. R. Evid. 201 ("A <br>judicially noticed fact must be one not subject to reasonable <br>dispute in that it is . . . capable of accurate and ready <br>determination by resort to sources whose accuracy cannot reasonably <br>be questioned."); In re Papatones, 143 F.3d 623, 624 n.3 (1st Cir. <br>1998) ("[A]ppellate courts may notice another court's record as an <br>adjudicative fact."); United States v. Berzon, 941 F.2d 8, 14 n.9 <br>(1st Cir. 1991); Kowalski v. Gagne, 914 F.2d 299, 305 (1st Cir. <br>1990) (taking judicial notice of a murder conviction and stating <br>that "[i]t is well-accepted that federal courts may take judicial <br>notice of proceedings in other courts if those proceedings have <br>relevance to the matters at hand"). <br>     3.  Massachusetts Law <br>          Olsen argues that Massachusetts law requires the <br>exclusion of his nolo plea, sentence, and conviction.  We are <br>doubtful Massachusetts rules of evidence have any application to <br>this federal question case, but think that Massachusetts's view of <br>a nolo conviction and sentence supports the result here.  Olsen has <br>not pointed us to anything in that law that is in tension with our <br>analysis of the admissibility question under the Federal Rules of <br>Evidence.   <br>          The Massachusetts rule is similar to Rule 410 and its <br>twin, Federal Rule of Criminal Procedure 11(e)(6): <br>          Except as otherwise provided in this subdivision, evidence of <br>     a plea of guilty, later withdrawn, or a plea of nolo <br>     contendere, or of an offer to plead guilty or nolo contendere <br>     to the crime charged or any other crime, or statements made in <br>     connection with, and relevant to, any of the foregoing pleas <br>     or offers, is not admissible in any civil or criminal <br>     proceedings against the person who made the plea or offer. <br> <br>Mass. R. Crim. P. 12(f); see also id. (providing that such evidence <br>"is admissible in a criminal proceeding for perjury if the <br>statement was made by the defendant under oath, on the record, and <br>in the presence of counsel").  Indeed, the reporter's notes to the <br>Massachusetts rule expressly state that subsection (f) was "[d]rawn <br>from Fed. R. Crim. P. 11(e)(6)."  Id. reporter's note.  The <br>reporter's notes also indicate that Rule 12, which does not mention <br>nolo convictions and sentences, was concerned with the effect of <br>the plea itself as an admission by the pleader in a later case: "A <br>nolo plea has the same effect as a guilty plea in the case before <br>the court, although it cannot be used against the defendant as an <br>admission in any subsequent civil proceeding" (citation omitted).  <br>Id. reporter's note to 12(a); see id. reporter's note to <br>12(c)(5)(A) ("The purpose of permitting a nolo plea is to relieve <br>the defendant of the adverse repercussions that can result from the <br>introduction of evidence from the present criminal proceedings."); <br>see also Aetna Cas. & Sur. Co. v. Niziolek, 481 N.E.2d 1356, 1362- <br>63 (Mass. 1985) (explaining that a guilty plea is an admission that <br>may be introduced into evidence in a later proceeding against the <br>party who made it) (citing Morrissey v. Powell, 23 N.E.2d 411, 413 <br>(Mass. 1939)). <br>          Massachusetts case law dealing with nolo pleas is sparse, <br>and Olsen points us almost exclusively to cases that pre-date the <br>July 1, 1979 effective date of the Massachusetts Rules of Criminal <br>Procedure.  These cases are also consistent with our reasoning.  <br>Although some of them purport to bar the admission of convictions <br>as well as pleas, they address only the use of those convictions to <br>prove that the pleader committed the crime.  In Commonwealth v. <br>Ingersoll, 14 N.E. 449 (Mass. 1888), the court stated that "[a] <br>plea of nolo contendere, when accepted by the court, is, in its <br>effect upon the case, equivalent to a plea of guilty.  It is an <br>implied confession of guilt only, and cannot be used against the <br>defendant as an admission in any civil suit for the same act."  Id. <br>at 450.  The court also noted, however, that "the judgment of <br>conviction follows upon such a plea, as well as upon a plea of <br>guilty," and that when the nolo plea is accepted "the court <br>proceeds thereupon to pass the sentence of the law."  Id. <br>          In White v. Creamer, 56 N.E. 832 (Mass. 1900), the <br>question was whether a party who pled nolo to unlawfully keeping <br>intoxicating liquors for sale could be barred from obtaining a <br>liquor license by a statute that provided that no license could <br>issue for a year after a "conviction."  The court stated: <br>          We do not doubt that a sentence imposed after a plea of nolo <br>     contendere amounts to a conviction in the case in which the <br>     plea is entered.  But we are of opinion that a record showing <br>     a conviction on such a plea is not admissible in another <br>     proceeding to show that the defendant was guilty.  A plea of <br>     nolo contendere is not an express confession of guilt, as is <br>     a plea of guilty, but is merely an implied confession.  If the <br>     plea is accepted, the defendant is bound by it, and may be <br>     sentenced; but he is not estopped to plead not guilty in an <br>     action for the same act. <br> <br>Id. at 833 (emphasis added) (citations omitted).  This case only <br>contemplated an exclusion where the admission of the conviction <br>would have been equivalent to the admission of the plea. <br>          In Olszewski v. Goldberg, 111 N.E. 404 (Mass. 1916), the <br>court restated the now familiar proposition that a nolo plea <br>"admits, for the purposes of the case, all the facts which are well <br>stated, but it is not to be used as an admission elsewhere."  Id. <br>at 404 (internal quotation marks omitted); see also Commonwealth v. <br>Marino, 150 N.E. 841, 842 (Mass. 1926) ("For the purposes of the <br>case the plea of nolo contendere is an admission of guilt of the <br>offense charged, and is equivalent to a plea of guilty.").  The <br>court also stated that the conviction pursuant to such a plea could <br>not be used for impeachment in later proceedings: "In this <br>commonwealth it is now settled that a conviction following a plea <br>of nolo contendere, cannot be used in another proceeding to affect <br>the credibility of a witness.  It was not admissible in the case at <br>bar."  Id. (citing White and Ingersoll).  Olszewski is functionally <br>equivalent to White, since the use of a conviction to "affect <br>credibility" is in most circumstances based on the proposition that <br>the pleader is actually guilty of the crime of which he was <br>convicted.  See 2 Mueller & Kirkpatrick, supra,  143, at 136 <br>(explaining that it is the misbehavior supposedly revealed by the <br>conviction that is used to impeach).  Again, this is not the <br>situation here. <br>          The only relevant case cited to us by Olsen that was <br>decided after the adoption of Rule 12 is LePage v. Bumila, 552 <br>N.E.2d 80 (Mass. 1990), which held that the payment of a parking <br>ticket could not be used as an admission of fault at a later civil <br>trial.  See id. at 82-83.  The court noted the unreliability of <br>such a payment as an admission (since it could be motivated by <br>expedience rather than fault) as well as the systemic benefits of <br>encouraging such "compromise" payments, and then explained that <br>"[p]aying a parking ticket is akin to a plea of nolo contendere <br>which admits the facts alleged, but only for purposes of the case <br>in which the plea is made.  Such a plea cannot be used in a later <br>civil or criminal trial."  Id. at 83 n.3 (citing Mass. R. Crim. P. <br>12(f) and White).  Since LePage was clearly concerned with <br>admissions and referred to the inadmissibility of a nolo plea only <br>in this context, it, like the other cases Olsen cites, does not aid <br>Olsen in his argument for exclusion of his manslaughter sentence <br>and conviction.  <br>     4.  Other Considerations <br>          It is true, as Olsen contends, that probative evidence is <br>often excluded because of its unreliability or because of larger <br>policy goals.  It is also true that "[c]onflicts between rule and <br>equity are common.  If every ruling is ad hoc, it is hard to <br>implement policy and predict outcomes."  United States v. Omar, 104 <br>F.3d 519, 524 (1st Cir. 1997).  However, the examples that Olsen <br>gives of limitations on evidence as to damages are not useful <br>analogies.  For instance, the collateral source rule, which is <br>based on different policy rationales than the rules associated with <br>the nolo plea, is not a restriction on evidence that is probative <br>of the very existence of an injury; and hearsay evidence about a <br>plaintiff's pain and suffering is unreliable, whereas the evidence <br>of Olsen's sentence is highly reliable.  <br>          Moreover, we see no conflict between rule and equity in <br>this case.  "The [nolo] plea and the conviction that follow[s] upon <br>it can hardly be viewed as inconsequential; the issue is simply <br>what consequences to give them and where."  United States v. <br>Guadarrama, 742 F.2d 487, 488 (9th Cir. 1984).  Here, the rules on <br>which Olsen relies are simply not applicable to this situation, and <br>the admissibility of the conviction and sentence is fully <br>consistent with the nature of a nolo contendere plea and the <br>policies underlying its use. <br>          The defendants were correct, then, that the nolo <br>conviction and sentence were admissible. <br>B.  Consequences of Admissibility of Nolo Sentence and Conviction <br>          The second, and more difficult, question is whether, once <br>evidence of Olsen's manslaughter conviction and sentence are <br>admitted, his claim for incarceration-based damages can survive.  <br>We think several related doctrines require a finding that the valid <br>manslaughter conviction and sentence bar, as a matter of law, an <br>action for damages for imprisonment. <br>          In analyzing the question presented, we look to a useful, <br>but not exact, analogy to situations in which a defendant serves a <br>period of imprisonment for two crimes or two counts of conviction <br>that result in the imposition of concurrent sentences.  If one <br>conviction is vacated, the defendant has nevertheless been <br>imprisoned pursuant to a valid sentence.  He may not then bring a <br> 1983 action for damages for his imprisonment.  In such a case, <br>it is clear that whatever the wrongful act involved in securing the <br>invalid conviction, that act was not the "but for" cause of the <br>incarceration, because without that act the plaintiff would have <br>been incarcerated in any event pursuant to the valid conviction.  <br>See Keeton et al., Prosser and Keeton on the Law of Torts  41, at <br>266 (5th ed. 1984) ("[T]he defendant's conduct is not a cause of <br>the event, if the event would have occurred without it."); cf. <br>United States v. Bramble, 925 F.2d 532, 534 (1st Cir. 1991) <br>(upholding sentence where the term represented "a valid sentence, <br>tied to (i.e., concurrent with) an invalid sentence"). <br>          This analogy is made inexact by the fact that it is <br>possible for Olsen to use his nolo plea to construct an argument <br>for "but for" causation.  The argument would proceed as follows: <br>the defendants' wrongful acts caused the murder conviction, the <br>murder conviction caused the incarceration, the invalidation of the <br>murder conviction caused the prosecutors to offer Olsen a plea on <br>a manslaughter charge, and the fact that Olsen had already served <br>time pursuant to the invalid murder conviction caused Olsen to <br>agree to the nolo plea and a sentence of time served.   <br>          This tenuous chain is not sufficient to allow Olsen to <br>collect incarceration-based damages, however.  As a series of <br>additional analogies will demonstrate, the policies favoring the <br>finality of valid criminal convictions and sentences and protecting <br>them from collateral attack through civil suit dictate against <br>allowing  1983 liability for damages for imprisonment here.  Thus, <br>whether the problem is viewed as one of the limits of  1983 <br>actions or of proximate cause, we conclude that incarceration- <br>related damages are not available to Olsen under these <br>circumstances.            <br>          One analogy is to guilty pleas.  In the  1983 context, <br>courts have held that valid guilty pleas preclude later claims of <br>constitutional violations because they represent "a break in the <br>chain of events which has preceded [the plea] in the criminal <br>process."  Tollett v. Henderson, 411 U.S. 258, 267 (1973); see also <br>Haring v. Prosise, 462 U.S. 306, 321 (1983) ("[W]hen a defendant is <br>convicted pursuant to his guilty plea rather than a trial, the <br>validity of that conviction cannot be affected by an alleged Fourth <br>Amendment violation because the conviction does not rest in any way <br>on evidence that may have been improperly seized.  State law treats <br>a guilty plea as 'a break in the chain of events . . . .'" (quoting <br>Tollett, 411 U.S. at 267)).  These cases point toward a policy of <br>honoring the finality of a criminal conviction by viewing a <br>conviction entered pursuant to a valid plea as the sole legal cause <br>of the incarceration imposed in the sentence.  <br>          In these circumstances, there is no reason that Olsen's <br>nolo plea should be treated differently from a guilty plea.  A nolo <br>plea differs from a guilty plea only in that it is not an admission <br>of guilt and cannot be used against the pleader in a later <br>proceeding to prove the underlying facts of the crime.  But as to <br>the validity of the sentence rendered, a nolo plea is the <br>equivalent of a guilty plea.  See Alford, 400 U.S. at 36 n.8;  <br>Ingersoll, 14 N.E. at 450 ("A plea of nolo contendere, when <br>accepted by the court, is, in its effect upon the case, equivalent <br>to a plea of guilty."); Fed. R. Crim. P. 11(e)(6) advisory <br>committee's notes, 1974 amendment ("A plea of nolo contendere is, <br>for purposes of punishment, the same as the plea of guilty.").    <br>          The court in Pete v. Metcalfe, 8 F.3d 214 (5th Cir. <br>1993), drew a similar conclusion.  In that case, a former inmate, <br>who pled nolo to reduced charges after his first conviction was <br>overturned, brought a  1983 action against various officials <br>charging false imprisonment and malicious prosecution.  See id. at <br>215-16.  The court held that no action for false imprisonment could <br>lie "where the detention was executed by virtue of legally <br>sufficient process duly issued by a court of competent <br>jurisdiction."  Id. at 218-19; see also id. at 219 ("This is true <br>where an arrest is pursuant to a validly issued arrest warrant, and <br>must also be true where, as here, Pete's two-year imprisonment was <br>the result of a judgment of conviction by a court with jurisdiction <br>over him.") (citation omitted); 35 C.J.S. False Imprisonment  27, <br>at 660 (1960) ("An action for false imprisonment may not be <br>maintained where an arrest or detention is made by virtue of <br>process, legally sufficient in form, and duly issued by a court or <br>official having jurisdiction to issue it.").  <br>          Another analogy is to the rule of Heck v. Humphrey,  <br>which provides that, at least while a defendant is still <br>imprisoned, he may not bring a  1983 action to attack his <br>conviction.  See Heck, 512 U.S. at 486-87; cf. Figueroa v. Rivera, <br>147 F.3d 77, 82 (1st Cir. 1998).  Addressing the proper channeling <br>of litigation between habeas corpus and  1983, see Heck, 512 U.S. <br>at 480-81, the Heck Court drew an analogy to the common law cause <br>of action for malicious prosecution, see id. at 484.  To bring a <br>malicious prosecution claim, a plaintiff must first show that the <br>prior criminal proceeding upon which the claim is based has been <br>terminated in his favor.  See id.; Meehan v. Town of Plymouth, 167 <br>F.3d 85, 90-91 (1st Cir. 1999).  Without such a requirement, <br>"parallel litigation over the issues of probable cause and guilt" <br>would arise and inconsistent adjudications could result "in <br>contravention of a strong judicial policy against the creation of <br>two conflicting resolutions arising out of the same or identical <br>transaction."  Heck, 512 U.S. at 484 (quoting Speiser et al., <br>American Law of Torts  28:5, at 24 (1991)) (internal quotation <br>marks omitted).  Heck imposed a limit on the availability of  1983 <br>actions by adopting a favorable termination requirement similar to <br>that found in the malicious prosecution context.  See id. at 483-86 <br>(limiting the scope of  1983 based on "concerns for finality and <br>consistency" and "the hoary principle that civil tort actions are <br>not appropriate vehicles for challenging the validity of <br>outstanding criminal judgments").  While we expressly decline to <br>reach the Heck analysis relied upon by the district court, we <br>believe that the policy that animates the limits on the malicious <br>prosecution cause of action and Heck's adoption of a favorable <br>termination requirement counsels against allowing Olsen to use this <br> 1983 action to impugn the validity of his sentence.  Allowing <br>Olsen to call into question, through a civil jury's award of <br>damages for incarceration, the legal validity of an unimpeached <br>criminal sentence would lead to inconsistency and an undermining of <br>the criminal process.  Cf. Figueroa, 147 F.3d at 81 ("[C]ivil tort <br>actions are not appropriate vehicles for challenging the validity <br>of outstanding criminal judgments." (quoting Heck, 512 U.S. at 486) <br>(internal quotation marks omitted)).  <br>          The final analogy is to the established policy of <br>enforcing plea bargains.  Absent a showing that a plea was in some <br>way constitutionally infirm, parties must be held to the terms of <br>the plea so as to ensure society's interest in the integrity of the <br>system of compromise resolution of criminal charges.  See <br>Blackledge v. Allison, 431 U.S. 63, 71 (1977) ("[T]he guilty plea <br>and the often concomitant plea bargain are important components of <br>this country's criminal justice system. . . . [The] advantages can <br>be secured, however, only if dispositions by guilty plea are <br>accorded a great measure of finality."); cf. Town of Newton v. <br>Rumery, 480 U.S. 386, 393-94 (1987).   <br>          Here Olsen pled nolo as part of a plea bargain with the <br>prosecution, and he now attempts to enforce a bargain that is quite <br>different from the bargain society offered him.  The English <br>translation of the Latin phrase "nolo contendere" is "I will not <br>contest it."  Black's Law Dictionary 1048 (6th ed. 1990) (internal <br>quotation marks omitted).  By pleading nolo, Olsen agreed to a <br>sentence of time already served as the punishment for the <br>manslaughter conviction.  While he did not admit to committing <br>manslaughter, he did, by pleading nolo, agree that both his <br>sentence and conviction were valid.  Cf. Cochenour v. Cochenour, <br>888 F.2d 1244, 1246 (8th Cir. 1989) (holding that the plaintiff's <br>voluntary election "was the legal cause of the sale" and that such <br>election breaks the chain of causation between his injuries and the <br>allegedly invalid procedures).  There are compelling reasons to <br>enforce this bargain: permitting a party who does not contest the <br>court's authority to punish him to bring a subsequent proceeding in <br>which he is able to claim that his punishment was improper would <br>undermine the finality of plea bargains and jeopardize society's <br>interest in a system of compromise resolution of criminal cases. <br>          Allowing the incarceration-related damages Olsen seeks <br>would undermine the availability of nolo pleas.  Although nolo <br>pleas represent a compromise on the question of guilt, society <br>accepts them because they produce convictions and sentences that <br>are final.  Faced with the prospect of continuing litigation and a <br>possible damages award, prosecutors will not agree to nolo pleas, <br>making such pleas less available to defendants.  As is demonstrated <br>in this case, nolo pleas are of benefit to defendants: Olsen <br>avoided a trial, a possible conviction, and the potential for <br>additional imprisonment.  Ensuring the continuing availability of <br>nolo pleas requires that we not allow Olsen to avoid the full force <br>and effect of his plea. <br>          These policies of finality and the prevention of <br>collateral attack on criminal convictions dictate against <br>permitting Olsen to recover damages for his imprisonment.  Olsen is <br>not free to question the finality of his valid imprisonment by an <br>action for incarceration-based damages.  Olsen's valid manslaughter <br>conviction and sentence are the sole legal cause of his <br>incarceration.  <br>          The doctrines and cases upon which we rely can be viewed, <br>for purposes of application to this case, as policy-based limits on  <br> 1983 actions.  See, e.g., Heck, 512 U.S. at 486; Harlow v. <br>Fitzgerald, 457 U.S. 800, 813-14 (1982) (relying on policy <br>considerations and "a balance between the evils" in resolving <br>questions regarding the scope of the immunity doctrine); Wood v. <br>Strickland, 420 U.S. 308, 318 (1975); Wolff v. McDonnell, 418 U.S. <br>539, 568, 571-72 (1974) (striking a "balance of interests" in <br>defining due process rights under  1983); Montgomery v. De Simone, <br>159 F.3d 120, 124 (3rd Cir. 1998) (stating that "the extent to <br>which the common law rule is rooted in history and reason and <br>whether the policies it serves are compatible with the purposes of <br>section 1983" are important in determining the limits on  1983 <br>actions); Pete, 8 F.3d at 218.  Alternatively, they could be viewed <br>as issues of proximate cause under  1983, breaking any causal link <br>between the imprisonment for which damages are sought and the <br>unconstitutional actions of the defendants in withholding a witness <br>statement.  Under both characterizations, this is a matter of law <br>for the court to determine.  See Keeton et al., supra,  42, at 273 <br>(noting that proximate cause, "[u]nlike the fact of <br>causation, . . . is primarily a problem of law"); see also Himba v. <br>Odegaard, 769 F.2d 1147, 1156 (7th Cir. 1985) (stating that the <br>court has "the exclusive function to declare the existence or non- <br>existence of rules . . . which restrict the responsibility of the <br>tort-feasor short of making him liable for harm of which his <br>actions are a legal cause"). <br>          Accordingly, judgment as a matter of law for the <br>defendants on damages for incarceration was proper -- and this is <br>exactly the conclusion that the district court reached, albeit <br>through different reasoning.  See Rodrguez-Cirilo, 115 F.3d at 53 <br>(affirming grant of summary judgment in  1983 action "based on <br>plaintiffs' failure to demonstrate causation"); Malave-Felix v. <br>Volvo Car Corp., 946 F.2d 967, 972-73 (1st Cir. 1991) (affirming <br>directed verdict for defendant based on plaintiff's failure to <br>prove causation).  There was no error in the district court's <br>vacating the original jury verdict.           <br>                              III <br>          It was well within the realm of possibility for the jury <br>in the second damages trial to have awarded Olsen substantial <br>compensatory damages for injuries associated with his murder trial <br>and conviction, and to have awarded substantial punitive damages <br>based on the nature of the defendants' actions.  See, e.g., Goodwin <br>v. Metts, 885 F.2d 157, 160, 163-67 (4th Cir. 1989) (upholding <br>substantial award to  1983 plaintiffs who were never <br>incarcerated), overruled in part on other grounds by Albright v. <br>Oliver, 510 U.S. 266, 270, 271 (1994) (plurality opinion).  This <br>did not come to pass, however, and Olsen, having pinned his hopes <br>on the reinstatement of the first verdict, makes a lesser challenge <br>to the scope and conduct of the second trial.  This challenge <br>fails. <br>          The new trial that actually took place, in which the <br>district court did not permit evidence of damages stemming from the <br>incarceration (as opposed to the murder trial and conviction), is <br>essentially the same trial that would take place on any remand from <br>our determinations.  The district court has, in effect, already <br>completed the work that would result from a remand and presented us <br>with two verdicts from which to choose, depending on our resolution <br>of a number of underlying issues.  Cf. Galdieri-Ambrosini v. <br>National Realty & Dev. Corp., 136 F.3d 276, 282 (2d Cir. 1998) <br>(explaining that if a district court permits a case to go to the <br>jury and thereafter enters a judgment as a matter of law that is <br>contrary to the verdict, "the need for a second trial will be <br>avoided" even if the court of appeals disagrees with the judgment).  <br>Indeed, several aspects of the second trial were advantageous to <br>Olsen: the district court granted a new trial only on damages, <br>rather than on both liability and damages, and it permitted Olsen <br>to have another opportunity to convince a jury of the propriety of <br>an award of punitive damages. <br>          Olsen belatedly contends that the scope of the damages <br>trial was too narrow because the district judge did not permit <br>evidence of the emotional injury caused by Olsen's belief during <br>the period of his incarceration that he would spend the rest of his <br>life in jail.  This argument is of no avail.  Olsen did not raise <br>this argument regarding the scope of the trial in his initial brief <br>on appeal and no more than hinted at it in his reply brief, and it <br>is therefore waived.  See, e.g., United States v. Brennan, 994 F.2d <br>918, 922 n.7 (1st Cir. 1993) (noting the "well settled" rule that <br>legal arguments made for the first time in an appellant's reply <br>brief are tardy).  Further, Olsen has not provided us with an <br>adequate record on appeal to review this issue, even if it had been <br>preserved. <br>          For the foregoing reasons, we affirm the judgment of the <br>district court on the basis of alternative reasoning.   No costs <br>are awarded.</pre>

</body>

</html>

