
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            United States Court of Appeals                                For the First Circuit                                For the First Circuit                                 ____________________        No. 96-1223                           ADALBERTO LIO a/k/a ALBERTO LIO,                                Plaintiff, Appellant,                                          v.                           WALTER F. ROBINSON, JR., ET AL.,                                Defendants, Appellees.                                 ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. Robert E. Keeton, U.S. District Judge]                                             ___________________                                 ____________________                                        Before                                Lynch, Circuit Judge,                                        _____________                      Aldrich and Bownes, Senior Circuit Judges.                                          _____________________                                 ____________________            Edgar L. Kelley for appellant.            _______________            Mary Jo Harris,  Special Assistant Corporation Counsel, with  whom            ______________        Merita  A. Hopkins, Corporation Counsel, and  Kopelman and Paige, P.C.        __________________                            ________________________        were on brief for appellees.                                 ____________________                                    April 29, 1997                                 ____________________                      BOWNES, Senior Circuit Judge.   Plaintiff-appellant                      BOWNES, Senior Circuit Judge.                              ____________________            Adalberto  Lio appeals from a jury finding of no liability in            his  42  U.S.C.    1983  action,  Massachusetts Civil  Rights            action, and  Massachusetts tort  claim  against seven  Boston            police officers and  the City of Boston.1  The only issues on            appeal  concern  evidentiary  rulings made  by  the  district            court.  We affirm the rulings.                                          I.                                          I.                                     THE EVIDENCE                                     THE EVIDENCE                                     ____________                      We rehearse so much of the evidence as is necessary            to understand the evidentiary rulings that are the subject of            this appeal.  Our review of the evidence is  made, of course,            in  the light most favorable  to the verdicts.   Newell P.R.,                                                             ____________            Ltd. v. Rubbermaid,  Inc., 20  F.3d 15, 18  (1st Cir.  1994).            _________________________            Plaintiff  Lio had been a Boston police officer since June of            1979; his designation  was patrolman.   Starting in 1982,  he            began exercising to build up his body.   He used various gyms            in the  Boston area.  In the  spring of 1991, he  was using a            gym in Dedham,  Massachusetts.  In  April of 1991,  Sergeant-            Detective  Leonard  Marquardt  (one of  the  defendants)  was            informed by an  officer of the Dedham  Police Department that            Lio was  selling drugs  -- steroids  -- at  a gym  in Dedham.                                            ____________________            1.  The original  defendants  included the  Town  of  Dedham,            Massachusetts,  and  two of  its  police  officers.   Summary            judgments  were granted  in favor  of  these defendants.   No            appeal has been taken from those judgments.                                         -2-                                          2            Marquardt  contacted  his  supervisor, Superintendent  Joseph            Saia (also a  defendant), and  a sting operation  was set  in            motion.  There was to be a "buy-bust."                        John  Antoniou, who had been arrested previously by            Marquardt  and  Detective  Walter F.  Robinson,  Jr. (another            defendant) for  selling drugs, agreed to  purchase a quantity            of steroids from Lio.  Antoniou knew Lio from meeting him  at            the gym.   He was  one of  the persons from  whom the  Dedham            Police  Department received information  that Lio was dealing            in  steroids.  Antoniou was  given $650 by  Marquardt to make            the "buy."                        On  May 23,  1991,  Marquardt was  informed by  the            Dedham Police Department that  Antoniou had arranged with Lio            to make the "buy" at  11:30 p.m. that night at the  White Hen            Pantry  (a convenience store) on Hyde  Park Avenue in Boston.            Marquardt  informed Detectives  Robinson  and  Kenneth  Beers            (another  defendant), who were  on duty,  to be  available to            observe  the "buy."   Marquardt  met with Antoniou  in Dedham            prior  to the "buy."  He emphasized  that the "buy" had to be            visible  so  it could  be  observed  by  the watching  police            officers.   Antoniou was told to signal that the "buy" was in            progress by running his fingers through his hair.                      The "buy"  was not  made at  the White  Hen Pantry.            Lio, who  was in police  uniform, talked briefly  to Antoniou            before entering and  after leaving the store.  Antoniou's car                                         -3-                                          3            followed  Lio's  car down  Hyde Park  Avenue.   The observing            police   officers  kept  their   superiors  apprised  of  the            situation by radio.   The two proceeded to Austin  Street and            parked  about  twenty  feet   from  the  intersection.    The            observing  officers,  Detectives  Beers  and  Robinson,  were            following in Detective Beers' private car.  Beers  parked his            car so that  he and  Robinson could see  both Antoniou's  and            Lio's cars.   They saw both men get out of their vehicles and            meet in  the middle  of the  street.  Lio  thrust a  bag onto            Antoniou's  chest, which  Antoniou  threw into  the passenger            side of his automobile, a white Corvette convertible with the            roof back.   When the  bag was subsequently  examined by  the            police, it  was found  to  contain packages  of steroids  and            hypodermic needles.                      After the "buy" had been made, Beers drove  his car            to  Austin Street,  which was  one-way, and  parked it  at an            angle  across the street so  as to block  vehicles from going            forward.  Beers then  approached Lio.  There is  a difference            in the testimony as to what happened next.  According to Lio,            Beers kicked and punched him.   He pushed Beers away so  that            he could get back into his  car and leave.  Beers claims that            Lio  hit him  hard in  the midsection  and knocked  him down.            Beers claims that he put Lio under arrest for assaulting him.                      Things then happened quickly. Lio got into his car,            a blue  Toyota coupe, and began  to back up at  a high speed.                                         -4-                                          4            Beers  hung onto  the  side of  Lio's  car until  it  stopped            suddenly and he was thrown off.  Lio started forward straight            at Detective Robinson.  Robinson jumped to the side and fired            at  Lio.   His shot  blew out  the front  side window  on the            driver's side of the car.   Lio then stopped and put  the car            in reverse.  Both Beers and Robinson fired at the rear end of            Lio's car.  Two bullet holes were found in the rear bumper of            the  car.  Lio managed to back  his car into the intersection            of Austin and West Streets.  He turned into West Street.                      Superintendent Robert  Faherty (another defendant),            night  commander of the Boston Police Force, was in the area.            He  heard a  radio  transmission by  a  police officer  state            "Austin toward West."  As he turned onto West Street he heard            gunshots and saw  a small  dark sports car  approaching at  a            high rate of speed.  Faherty, thinking that there had  been a            drive-by shooting, gave chase.  He followed Lio onto Enneking            Parkway.  Shortly thereafter Faherty heard a  crash.  Faherty            saw Lio get out of his car and run into a patch of woods.                      In  a short  time,  back-up police  units began  to            arrive at the scene.   One of the first arrivals was  Officer            Cornell  Patterson (another  defendant).    He asked  Faherty            where  the suspect had gone  and was told,  "into the woods."            Patterson took  Faherty's flashlight  and began a  search for            Lio.   He found him, and Lio surrendered.  Patterson took him            to  Superintendent Faherty, who told Lio that he was going to                                         -5-                                          5            be  charged with attempted murder.  Faherty then gave Lio the            Miranda warnings.   Lio was  then taken to  the area  station            _______            house for booking.       Superintendent     Saia    commanded            Sergeant   Edward   O'Donnell  (the   seventh  police-officer            defendant) to  conduct a "use of  deadly force" investigation            into  the  shots  fired at  Lio  and  his  car by  Detectives            Robinson and Beers.                      Lio was charged with assault with intent to murder,            assault and battery by  means of a dangerous weapon  (a car),            assault  by means of a  dangerous weapon (a  car), driving to            endanger, speeding, leaving the scene of an accident, failure            to  stop  for a  police officer,  distribution  of a  Class E            controlled  substance,  unlawful  possession   of  hypodermic            needles, and unlawful  possession of syringes.   In May 1994,            the District Attorney issued a nolle prosequi, dismissing the                                           _____ ________            charges against Lio.  This lawsuit followed.                        Plaintiff's  complaint  alleged  violations  of  42            U.S.C.    1983  (false  arrest,  excessive  force,  malicious            prosecution,  and  conspiracy   to  violate  civil   rights),            violations of the Massachusetts  Civil Rights Act, Mass. Gen.            Laws ch. 12,    11I, and assault and battery,  arising out of            an investigation which culminated in Lio's arrest on May  23,            1991.   The plaintiff further alleged that the City of Boston            had a  practice, custom or policy  of allowing constitutional            violations, such as alleged in his complaint, to occur.                                         -6-                                          6                      The district  court decided  prior to the  start of            the trial  that the case against the City of Boston should be            severed  from   that  of   the  police  officers   and  tried            immediately   thereafter  if  any  of  the  defendant  police            officers  were found liable.   Because the jury  did not find            any of the individual defendants liable, the case against the            City of Boston was dismissed.                                         II.                                         II.                                      THE ISSUES                                      THE ISSUES                                      __________                      Appellant has  raised three issues,  which we state            as they are  set forth at page  one of his brief.   We review            for  abuse of  discretion.   See Blinzler v.  Marriott Int'l,                                         ___ ____________________________            Inc., 81 F.3d 1148, 1158 (1st Cir. 1996).            ____                      The first issue is stated as follows:                           I.  Whether the trial judge erred in                      allowing Defendant's Motion In  Limine To                      Exclude  Evidence  of   a  Character   or                      Reputation Pursuant to  Federal Rules  of                      Evidence   404(b),   resulting   in   the                      exclusion of evidence  of racial  animus,                      to  prove  motive,  opportunity,  intent,                      preparation,    plan,   knowledge,    and                      identity within Rule 404(b).            There  was  a  hearing   on  defendants'  motion  in  limine.                                                              __  ______            Plaintiff wanted to prove through the deposition testimony of            Gregory  Matthews,  Jose Alfonso,  Marilyn Hinton,  and Brian            Latson  -- all of whom  were minority officers  on the Boston            Police  Force, and all of whom,  except Alfonso, served under            defendant  Marquardt   --  that Marquardt  harbored a  racial                                         -7-                                          7            animus toward minorities.  At the  hearing the district judge            stated the  question as he understood  it: whether Marquardt,            acting  in a  supervisory  capacity, did  something that  was            motivated  by racial  animus.  Counsel  for Lio,  Mr. Kelley,            agreed that  that was the  question.  The  following colloquy            then ensued:                           THE COURT:  All right.  Now, then it                      seems to me that since that is the issue,                      the existence  of  racial animus  is  not                      itself an  element of  any claim and  the                      question   becomes   what   evidence   is                      admissible  to show that  the officer did                      something with racial animus.  That's the                      question.   And that brings  us directly,                      then,  to Rule 404, that says evidence of                      a person's character that he has a racial                      animus is not  admissible for the purpose                      of  proving  that  action  in  conformity                      therewith   occurred   on  a   particular                      occasion.  404(a) is directly in point.                           MR. KELLEY:  It would be in point if                      the purpose of  the offer were restricted                      to proving propensity or proclivity.                           THE COURT:  But  what is the purpose                      of the offer?                           MR.  KELLEY:  The purposes -- one of                      the defendants here, Superintendent Saia,                      a long and experienced officer who was in                      charge   of   the  operations   of  these                      particular defendants, knowing in advance                      of -- sufficient  to question the  racial                      bias and  animus of  given officers  in a                      given  station,  did  nothing,   took  no                      action, as a matter of fact in testimony,                      endorsed their actions.                           THE  COURT:   Well,  you  see,  that                      doesn't  at all  support  an argument  of                      opinion or reputation  in the  community.                      That would be an argument that would only                      permit  evidence  that Saia  himself knew                                         -8-                                          8                      about  this  characteristic of  the other                      person, so that's what you have to offer.                      You can't offer --                           MR. KELLEY:   That's what I'm saying                      we will offer and we will prove.                           THE COURT:  Well, that's  not -- all                      right.  Then show me the proffer.                      Then followed an extensive colloquy (ten transcript            pages) between the  court and plaintiff's counsel.  The court            ruled  that the  deposition  testimony of  the four  minority            police officers could not be used.  It then stated:                      Now, that's  not going to  stop you  from                      making  a proffer  during  the course  of                      trial.     Of  course,  if  you  want  to                      complain  about  my  ruling   on  appeal,                      you're  going to  have to  do that.   And                      when I hear that proffer in  more detail,                      I'll consider any  arguments that may  be                      made  at that  time just  in case  it may                      persuade me to a different view.                           But the view  I hold at the  present                      time is  that what you're aiming for here                      is to show that Saia is liable personally                      and  that the  only way  I can  determine                      that that is correct is to determine that                      Saia  acted with  racial animus  and that                      what  you're  proffering  to  me  doesn't                      cover  some  gaps  between  a  particular                      officer's   personal   view   about   his                      experiences  and,  first,  the  inference                      that that means that Marquardt has racial                      animus  and  has  that  reputation,  and,                      secondly,  that  Saia  knows   that  and,                      third,  that  when  Saia  is  making  his                      decisions  he's not  just  making  a  bad                      executive  decision,  but he's  making it                      with racial  animus  because of  his  own                      racial animus.  There are several missing                      steps in the proffer of evidence.                      No proffers were made during trial.                                         -9-                                          9                      On  November  23, 1995,  the day  after defendants'            motion in limine had been granted, plaintiff filed a "Proffer                   __ ______            of Evidence" to which were attached extensive excerpts of the            deposition  testimony  of  minority  Boston  Police  Officers            Matthews, Alfonso,  Hinton, and Latson.   The purpose  of the            proffer is stated as follows:                           In  respect  of  Marilyn Hinton  her                      testimony   is   replete  with   personal                      experiences that  prove conclusively that                      the  defendant,  Leonard Marquardt  had a                      rampant  racial  animus  which  made  her                      service   in   Area  E   humiliating  and                      horrific   as   a  black   female  police                      officer.  She  extended his  paradigmatic                      racism  as  illustrative  of the  cynical                      rule that police like him  are "easier to                      tolerate than to correct," as a pervasive                      policy in Area E.                           The gist of  Gregory Matthews  [sic]                      testimony as excerpted is that he was the                      object of direct  racial slurs stated  by                      the defendant, Leonard Marquardt, that he                      heard the defendant  refer to  minorities                      and blacks a[sic]  "chincs and spics"  at                      page 52, and "Leroy(s)" at page 72.                           In  the  case of  Brian  Latson, his                      testimony is probative  on the issue that                      the defendant, Leonard  Marquardt, had  a                      propensity  to usurp the functions of the                      division  of  Internal   Affairs.     The                      defendant,  Leonard Marquardt,  arrogated                      to himself an excessive personal industry                      in supervising minority officers.                           In  the case  of  Jose  Alfonso  his                      testimony is  probative on the issue of a                      defense that the plaintiff  invented such                      an animus  as a  defense to  the criminal                      and  administrative  charges against  him                      resulting from the  "buy bust"  operation                      generated  by  Area   E  personnel   (all                                         -10-                                          10                      defendants  except  Saia) for  a spurious                      execution in Dedham.                      We  have read  the deposition  testimony carefully.            We point out, first of  all, that a portion of the  testimony            of all the  deponents is  hearsay and for  that reason  alone            would not be  admissible.  Officer  Alfonso obtained all  his            information about  Area E  (the home base  for Marquardt  and            Lio) from Lio.   Lio was Alfonso's training officer  and they            were  partners for  a year  and a  half, assigned  to Spanish            areas  of Boston.  Because  of Lio's advice,  Alfonso did not            work in Area  E.  He only knew about  Marquardt from what Lio            told him.   He did  not know Superintendent  Faherty at  all.            Insofar as the proffer  suggests that Alfonso had information            that  the   "buy-bust"  sting  operation   was  spurious  and            motivated  by Marquardt's  racial  animus, there  is no  such            testimony,  either direct or implied, in his deposition.  Nor            is there in any of the other depositions.                      Officers   Matthews   and   Hinton   worked   under            Marquardt,  apparently  at different  times.   Both described            Marquardt  as a  bigoted racist  who treated  minorities with            scorn and derision.  According to Hinton, Marquardt was foul-            mouthed with minority women and verbally assaulted them.                        Officer Brian Latson worked under Marquardt in Area            E.  He testified  that he never observed  anything suggesting            that either  Marquardt or  Detective Robinson  were targeting            minority  officers.   He testified  further that  he did  not                                         -11-                                          11            think  the racial  climate at Area  E was  bad at  all and he            enjoyed   working  there.     Latson  also   testified  under            questioning  by  Lio's  counsel   that  Lio  was  upset  with            Marquardt and "fearful" of him.  Then followed testimony that            would  be  clearly  inadmissible  on  relevancy  and  hearsay            grounds:   Latson's commanding  officer, Deputy  Clayburn (an            African-American), called  him into  his office and  told him            that he had  heard that  Latson was using  steroids.   Latson            denied  it, and said that  he had been  a Christian Scientist            since he was twelve  and never even took an  aspirin.  Latson            further  said that he was willing to submit to whatever tests            that Clayburn wanted to  give.  It was Latson's  opinion that            this inquiry  was prompted by the  fact that both  he and Lio            were  into body building and lifting weights.  About the same            time, he was approached by a known drug dealer and  a "street            source" for Latson, who told him that two detectives had been            inquiring  about  him.    Latson testified  that  he  thought            Marquardt  was   asking  about  him  because   of  his  close            relationship with Lio.                      As we discern it, Lio's theory for the admission of            the  deposition testimony is that it tended to prove that the            "buy-bust"  sting  operation  was  motivated  by  Marquardt's            racial  animus against Lio.  Even if we assume that Marquardt            had a strong racial  animus against minority police officers,            of  which   the  depositions  of  Hinton   and  Matthews  are                                         -12-                                          12            probative, and  that Superintendent Saia knew  this or should            have known it,  we fail  to comprehend the  relevancy of  the            depositions.    There  was  no  direct,  circumstantial,   or            inferential evidence that  Lio was  "set up" as  a result  of            Marquardt's  racial  animus  toward minority  officers.   The            sting operation originated with the Dedham Police Department.            That police  department informed Marquardt that  Lio had been            dealing in steroids.   It was the Dedham Police  who selected            John Antoniou  to make  the "buy."    Marquardt had  reliable            information than an officer under his  command was dealing in            drugs.    He got  permission  from  his  superior officer  to            proceed with the "buy-bust"  sting.  There is nothing  in the            deposition testimony to suggest  that he would have proceeded            differently had the implicated  officer been white instead of            Hispanic.  We think the deposition testimony could  have been            excluded on the grounds of relevancy alone.                      The district court was surely correct in  excluding            the deposition  testimony on the  grounds of Federal  Rule of            Evidence 404(a):                      Rule   404.     Character   Evidence  Not                      Rule   404.     Character   Evidence  Not                      Admissible To  Prove Conduct; Exceptions;                      Admissible To  Prove Conduct; Exceptions;                      Other Crimes                      Other Crimes                           (a)   Character  evidence generally.                           (a)   Character  evidence generally.                      Evidence  of a  person's  character or  a                      trait of character is not  admissible for                      the   purpose   of   proving  action   in                      conformity  therewith   on  a  particular                      occasion, except: . . .            Nor does it fall within the ambit of exception (b):                                         -13-                                          13                           (b) Other crimes,  wrongs, or  acts.                           (b) Other crimes,  wrongs, or  acts.                      Evidence of other crimes, wrongs, or acts                      is not admissible to prove  the character                      of a  person in  order to show  action in                      conformity therewith.   It may,  however,                      be admissible for other purposes, such as                      proof  of  motive,  opportunity,  intent,                      preparation,  plan, knowledge,  identity,                      or  absence  of   mistake  or   accident,                      provided   that   upon  request   by  the                      accused,  the  prosecution in  a criminal                      case shall provide  reasonable notice  in                      advance of trial, or  during trial if the                      court  excuses  pretrial  notice on  good                      cause shown, of the general nature of any                      such  evidence it intends to introduce at                      trial.                      Clearly, the purpose of plaintiff's proffer was "to            prove the character" of Marquardt "in order to show action in            conformity therewith."   And since the proffer  does not come            within any  of the exceptions in the  second sentence because            there  is no evidence in  the depositions showing  any of the            other  purposes,  the district  court correctly  excluded the            deposition testimony.                      Appellant   argues   that  Gutierrez-Rodriguez   v.                                                 ________________________            Cartagena,  882 F.2d  553 (1st  Cir. 1989), is  precedent for            _________            admitting the  depositions into evidence.  Gutierrez involved                                                       _________            a 42 U.S.C.   1983 civil rights action brought against police            officers  of   the  Commonwealth  of  Puerto   Rico  for  the            unwarranted  shooting  of  the  plaintiff,  rendering  him  a            paraplegic.   In  that  case the  district  court allowed  in            evidence under Rule 404(b) thirteen case files of  the police                                         -14-                                          14            officer who shot the  plaintiff.  We affirmed  the admission,            stating:                           The complaint files were relevant to                      prove   the   supervisory  liability   of                      Cartagena  and  Alvarez.   They  were not                      introduced to show that based upon Soto's                      past  conduct  it  was  likely   that  he                      participated  in the  Gutierrez shooting.                      The  evidence  was   not  used  to  prove                      conduct,  period.    As   was  repeatedly                      stressed  by  the  district   court,  the                      evidence  could  only  be   used  against                      Cartagena  and    Alvarez  to  show gross                      lapses in the supervision  and discipline                      of Soto.            Id.  at 572.    This  is  not  precedent  for  admitting  the            ___            depositions in this  case.   Quite the contrary!   The  other            cases  cited  by  appellant   in  support  of  admitting  the            depositions are even  more attenuated.   Even if an  argument            could be  made that the  statements provide proof  of motive,            the evidence was extremely weak for the reason already given.            The sting was orchestrated by the Dedham Police.                      The second issue as stated by appellant is:                        II.   Whether the  trial  judge erred  in                      denying  Plaintiff-Appellant's Motion  In                      Limine to Permit The Introduction of John                      Antoniou's Criminal  Record after hearing                      and as  renewed during the course  of the                      trial.                      This  issue does  not require  extended discussion.            Antoniou was not a  witness at the trial.   Appellant alleges            that he fled the jurisdiction.  His deposition was not taken.            Lio's  attorney injected Antoniou into the case on his direct            examination of Marquardt:                                         -15-                                          15                      Q:   (By  Mr. Kelley):  Did you have                           any   other  words   with  John                           Antoniou at  that meeting other                           than what you've said here?                      A:   (By Marquardt):  No.                      Q:   Did    any    of   the    other                           participants in this discussion                           have  any  words directly  with                           John    Antoniou    that    you                           overheard?                           . . .                      A:   I don't remember any.                      Q:   Did John Antoniou say anything?                      A:   Yes.                      Q:   What did he say?                      Ms. Harris:  Objection.  Hearsay, your                      __________                                     Honor.                      The Court:  Overruled.                      _________                      A:   He said that he could buy drugs                           from   (indicating)   Adalberto                           Lio.                      Q:   He said he could buy drugs?                      A:   Yes sir, he did.                      Q:   Did  he then move  on from that                           and say, "I will attempt to buy                           drugs from Adalberto Lio?"                      A:   That's what I thought he was there for.                           . . .                      Q:   And Antoniou at Area E told you                           that  he was willing  to try to                           arrange a sale of steroids from                           (indicating) Adalberto  Lio, is                           that correct?                      A:   Yes, sir.                      The court instructed the jury, after the statements            of Antoniou had been admitted, as follows:                           THE COURT:   Now, I  think I  should                      give   the   limiting  instruction   that                      [statements  of  Antoniou are]  not being                      received   to  prove  the  truth  of  the                      statements made,  but it  has to come  in                      because it's information that  bears upon                      any  charge of  probable cause  or acting                      without  probable  cause against  various                      people  .  .  .   even  if  some  of  the                      information  .  .  .  is  hearsay  within                      hearsay, it's still  information that  is                                         -16-                                          16                      being  passed along  and  is  taken  into                      account in the whole array of information                      that the officers who are  defendants, if                      they  have that information, it's part of                      the information they take into account in                      determining     whether     action     is                      appropriate.                           MR. KELLEY:    I guess,  then,  your                      Honor, what I would request the  Court to                      do  is,  as  specifically   as  possible,                      emphasize that this is not being received                      for the purpose of the truth of any --                           THE COURT:  I'll do that.                      Lio  did not  object  to this  instruction; to  the            contrary, he acquiesced in it.                      Finally, the record makes  it clear that the police            officers who dealt with  Antoniou, including Marquardt,  knew            and  acknowledged that he had  a criminal record.   Under all            the circumstances  here, it  was not  error for  the district            court to  exclude the specifics of  Antoniou's prior criminal            record.                      The third  and final  issue raised by  appellant is            stated:                           III.   Whether the trial Judge erred                      in denying Plaintiff's  Motion In  Limine                      to    Permit    the    Introduction    of                      Massachusetts   Superior   Court   "Nolle                      Prosequi"   and   related  papers   under                      Federal Rules of Evidence, Rules  201 and                      803(8)(C) and in  applying the so  called                      "Bad Acts" restriction  of Rule 404(b) to                      that evidence.                      Some explanation  is in order.   The district court            allowed Lio to  read to  the jury the  nolle prosequi  docket                                                   _____ ________                                         -17-                                          17            entries.  The  jury was  then instructed  that these  entries            were terminations in favor of the plaintiff and satisfied one            element of the malicious prosecution claim.                      The district court did not allow in evidence a  two            and one  half page statement  by the Suffolk  County District            Attorney giving  the reasons for  the nolle  prosequi.   This                                                  _____  ________            statement  was  clearly  hearsay;   it  was  an  out-of-court            statement  offered  for  the  truth  of  what  was  contained            therein.  And as  the court explained fully to  Lio's counsel            at  the pretrial hearing on the motions in limine, it did not                                                    __ ______            fall within the hearsay exception of Federal Rule of Evidence            803(8)(C), which permits the introduction into evidence of                       records,  reports,  statements,  or  data                      compilations,  in  any  form,  of  public                      offices   or  agencies,   setting  forth,                      . . . . in civil actions  and proceedings                      and  against  the Government  in criminal                      cases, factual findings resulting from an                      investigation made  pursuant to authority                      granted  by law,  unless  the sources  of                      information   or    other   circumstances                      indicate lack of trustworthiness.            The following colloquy took place:                           THE COURT:  Now, what is the factual                      finding  that  you're proposing  to offer                      here?                           MR. KELLEY:  The finding that, as is                      recited  in  the   nolle  prose   itself,                      evidence   was   compromised  by   police                      officers, internal contradictions between                      --                           THE COURT:   Wait a minute.   Wait a                      minute.  Where is  that finding?  Read me                      the language that you say constitutes --                                         -18-                                          18                           MR.    KELLEY:        "Because    of                      deficiencies  in  the  way Boston  Police                      officers   controlled  and   handled  the                      informant as well as physical evidence in                      this   case"   --   that's    a   factual                      determination  -- "there  is," therefore,                      "a   substantial   likelihood  that   the                      Commonwealth  cannot  establish  a  prima                      facie case . . . ."                           THE  COURT:   All right.   Now,  I'm                      trying to  look  for some  finding  there                      that is related to an issue in this case.                      Findings  that  are  immaterial  to  this                      case, of course, don't come into evidence                      in   this  case.     Findings   that  are                      immaterial to this case, of course, don't                      come into evidence in this case.                           MR. KELLEY:  Of course.                           THE  COURT:  It's only findings that                      are material to this case.                           Now, there is not  an identification                      of what  the deficiencies were,  so I  am                      not able to tell whatever the person, the                      official   making    this   finding   was                      referring to, and  unless I can determine                      what the official was referring  to, then                      I cannot determine  whether it's  related                      to an  issue in  this case or  instead is                      immaterial  to  an  issue  in  this case.                      This   is   even  worse   than  receiving                      reputation  evidence  or  something  like                      that   that's  a   generalized  statement                      that's not in point for this case.                           So,  you see the  problem I'm having                      is with the notion that there are, quote,                      factual findings, unquote, here  that are                      material to the issues in this case.  The                      mere fact that there are factual findings                      in the report  doesn't make it admissible                      in this case.  It  covers only one of the                      aspects   concerned   with  whether   the                      evidence is admissible in this case.   It                      has  to be  a  factual  finding that  has                      materiality  to the  issues in  this case                      and I am not able  to tell from this form                                         -19-                                          19                      of factual findings either  (1) precisely                      what the deficiencies are or (2) how they                      affected or would  affect the  likelihood                      of drawing  an inference in this  case on                      some issue that has  to be decided by the                      factfinder in this case.                           MR. KELLEY:   Under subsection  (C),                      as I understand it, that's the purpose of                      allowing  a  report  on  the  part of  an                      official who is  required to  investigate                      and report.                           THE  COURT:   If  the official  were                      required to investigate and make a report                      on whether Saia acted with racial animus,                      then  that  would  be  an  issue that  is                      involved in  this  case, but  that's  not                      what this finding is about.                           MR.  KELLEY:    No,  it  isn't, your                      Honor.  It isn't offered for that.                           THE COURT:  So the finding has to be                      about something that is  an issue in this                      case  for it  to  be admissible  in  this                      case.  I don't  receive evidence  in this                      case  of any  kind, witnesses,  direct or                      findings of an official, unless it's on a                      matter that  is material to this case and                      that's what's missing  here.  There's  no                      basis on  which I can determine  that the                      official here  has made a  finding on  an                      issue  that  will  be  for  the  jury  to                      consider in this case.                           MR.  KELLEY:    The next  paragraph,                      your Honor:   "Prior statements and sworn                      testimony of certain police  and civilian                      witnesses   necessary   to  proving   the                      Commonwealth's    case    are    directly                      contradictory in material aspects."                           I  submit,  your  Honor, that's  the                      province of the District Attorney.                           THE  COURT:   Well,  wait a  minute.                      No, it's the province of this jury.  If I                      determine that there  is -- in  receiving                      evidence on  admissibility determine that                                         -20-                                          20                      there are  contradictory statements, then                      I  tell this  jury:   "That's for  you to                      resolve,  not for anybody  else.  Not for                      me, certainly not for some official other                      than an official of this court."                      We affirm  the court's  exclusion  of the  District            Attorney's  report for the reasons stated by the court in the            colloquy.                      We  have considered carefully appellees' motion for            sanctions.  We deny it.                      The judgment  of  the district  court is  affirmed.                                                                affirmed.                                                                ________            Costs on appeal awarded to appellees.            Costs on appeal awarded to appellees.            ____________________________________                                         -21-                                          21
