     10-1809-cv
     Farganis v. Town of Montgomery
                                 UNITED STATES COURT OF APPEALS
                                     FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER

     Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after
     January 1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s
     Local Rule 32.1.1. When citing a summary order in a document filed with this court, a party must cite either
     the Federal Appendix or an electronic database (with the notation “summary order”). A party citing a
     summary order must serve a copy of it on any party not represented by counsel.


 1           At a stated term of the United States Court of Appeals for the Second Circuit, held at the
 2   Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on
 3   the 21st day of October, two thousand ten.
 4
 5   PRESENT:         GUIDO CALABRESI
 6                    DEBRA ANN LIVINGSTON
 7                                   Circuit Judges,
 8                    PAUL A. CROTTY
 9                                   District Judge.*
10
11
12   PEGGY FARGANIS,
13             Plaintiff-Appellant,
14
15           -v.-                                               No. 10-1809-cv
16
17   TOWN OF MONTGOMERY,
18            Defendant-Appellee.
19
20
21                                    STEPHEN BERGSTEIN, Bergstein & Ullrich, LLP, Chester, New
22                                    York, for Plaintiff-Appellant.
23
24                                    PAUL E. SVENSSON, Hodges Walsh & Slater, LLP, White Plains,
25                                    New York, for Defendant-Appellee.
26
27
28




             *
              The Honorable Paul A. Crotty, of the United States District Court for the Southern
     District of New York, sitting by designation.
 1           UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

 2   DECREED that the judgment of the district court be AFFIRMED.

 3           Plaintiff-Appellant Peggy Farganis (“Farganis”) appeals from a judgment entered January

 4   26, 2010 in the United States District Court for the Southern District of New York (Yanthis, M.J.),

 5   following a jury trial, in favor of Defendant-Appellee Town of Montgomery, as to Farganis’s claim

 6   of discrimination under the Americans with Disabilities Act, 42 U.S.C. § 12132 et seq., as well as

 7   the district court’s order denying her post-judgment motion for a new trial pursuant to Federal Rule

 8   of Civil Procedure 59. On appeal, Farganis advances two claims of error. First, she asserts that the

 9   district court erred in precluding testimony regarding two telephone calls purportedly made to her

10   husband by an unidentified Town of Montgomery police officer, offered as vicarious admissions

11   under Federal Rule of Evidence 801(d)(2)(D). Second, Farganis asserts that the district court erred

12   in admitting evidence of her thirteen year-old misdemeanor conviction for petit larceny, under

13   Federal Rule of Evidence 609(b). We assume the parties’ familiarity with the underlying facts and

14   procedural history of the case.

15           “We review evidentiary rulings under a deferential abuse of discretion standard and give

16   district judges ‘wide latitude in determining whether evidence is admissible at trial.’” Meloff v. New

17   York Life Ins. Co., 240 F.3d 138, 148 (2d Cir. 2001) (quoting Caruolo v. John Crane, Inc., 226 F.3d

18   46, 54 (2d Cir. 2000)). Federal Rule of Evidence 801(d)(2)(D) provides in relevant part that “[a]

19   statement is not hearsay if . . . [it] is offered against a party and is . . . a statement by the party’s

20   agent or servant concerning a matter within the scope of the agency or employment, made during

21   the existence of the relationship.” A party seeking to introduce a vicarious admission under this rule

22   must establish “(1) the existence of the agency relationship, (2) that the statement was made during

23   the course of the relationship, and (3) that it relates to a matter within the scope of the agency.”

24   Pappas v. Middle Earth Condominium Ass’n, 963 F.2d 534, 537 (2d Cir. 1992). While this

                                                        2
 1   foundational predicate “may be established by circumstantial evidence,” id. at 538, the statements

 2   themselves are not alone sufficient. See Fed. R. Evid. 801(d)(2) (“The contents of the statement

 3   shall be considered but are not alone sufficient to establish the . . . agency or employment

 4   relationship and scope thereof . . . .”).

 5           While we have noted that “admissibility under this rule should be granted freely,” Pappas,

 6   963 F.2d at 537, Farganis presented little evidence to establish the foundational predicate required

 7   for admission of the vicarious admissions at issue in this case. The identity of the declarant, for

 8   example, was not ascertained. Though not dispositive, see id. at 539, the lack of evidence as to the

 9   caller’s identity, without more, weighs against a finding that Farganis has presented an adequate

10   foundation. Cf. Zaken v. Boerer, 964 F.2d 1319, 1324 (2d Cir. 1992) (“[W]ithout identification of

11   the declarant, the statement . . . did not have a sufficient evidentiary foundation to establish the

12   existence of an agency relationship as required under Rule 801(d)(2)(D).”). In fact, the only

13   circumstantial evidence presented by Farganis to establish the requisite foundation, beyond the

14   contents of the statements themselves, was testimony indicating that her cellular phone had been

15   confiscated by the police. J.A. 137. As the district court noted, however, Farganis proffered no

16   evidence as to “which police officer had confiscated [her] cell phone, the chain of custody of the cell

17   phone, or how much time passed between the time it was confiscated and the time of the alleged

18   phone calls.” SPA 6 (Memorandum and Order, Apr. 29, 2010). Accordingly, we cannot conclude

19   that the district court abused its discretion in precluding the admission of testimony regarding the

20   purported phone calls to Farganis’s husband.

21           Next, Farganis claims that the district court erred in admitting evidence of her thirteen year-

22   old misdemeanor conviction for petit larceny, based on the falsification of records of her employer

23   for the purpose of obtaining improper refunds. Federal Rule of Evidence 609(a)(2) directs that


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 1   “evidence that any witness has been convicted of a crime shall be admitted regardless of the

 2   punishment, if it readily can be determined that establishing the elements of the crime required proof

 3   or admission of an act of dishonesty or false statement by the witness.” This categorical approach

 4   is qualified, however, by Rule 609(b), which provides that evidence of a conviction over ten years

 5   old is not admissible “unless the court determines, in the interests of justice, that the probative value

 6   of the conviction supported by specific facts and circumstances substantially outweighs its

 7   prejudicial effect.” Fed. R. Evid. 609(b).

 8           We have repeatedly “recognized that Congress intended that convictions over ten years old

 9   be admitted very rarely and only in exceptional circumstances.” Zinman v. Black & Decker (U.S.),

10   Inc., 983 F.2d 431, 434 (2d Cir. 1993) (internal quotation marks omitted). Accordingly, where a

11   party seeks to admit evidence of a conviction that is more than ten years old, “[a] determination that

12   the probative value of the conviction substantially outweighs its prejudicial effect must be made on-

13   the-record and based on specific facts and circumstances.” United States v. Payton, 159 F.3d 49,

14   57 (2d Cir. 1998); see also United States v. Mahler, 579 F.2d 730, 736 (2d Cir. 1978) (“We . . .

15   adopt the view that when convictions more than ten years old are sought to be introduced . . . the

16   district judge should make an on-the-record determination supported by specific facts and

17   circumstances that the probative value of the evidence substantially outweighs its prejudicial

18   effect.”).

19           There is some merit to Farganis’s contention that the district court may have failed to

20   conduct an appropriate on-the-record balancing to determine that the probative value of her prior

21   conviction substantially outweighed its potential prejudicial effect. After a brief colloquy regarding

22   Farganis’s motion in limine, at which defense counsel argued that the prior conviction was probative

23   on the issue of credibility, the court ruled:


                                                        4
 1                  [W]hen you’re dealing with a conviction that goes to false statement
 2                  or anything that would impeach credibility, even if it’s beyond that
 3                  10 years, as long as it’s been noticed here . . . . I will allow it to be
 4                  asked whether or not plaintiff did plead guilty to a charge that
 5                  involved false statements or anything in the nature of dishonesty.
 6
 7   J.A. 83-84. In its post-judgment order denying Farganis’s motion for a new trial, the district court

 8   did note Rule 609(b)’s requirement that the probative value of the conviction substantially outweigh

 9   its prejudicial effect, but addressed the issue with similar brevity, stating only that “[a]lthough

10   plaintiff was convicted in 1996 . . . she pled guilty to a crime which clearly involved an act of

11   dishonesty or false statement,” and “in this [c]ourt’s view, the probative value of the conviction

12   clearly outweighed its prejudicial effect.” SPA 7 (Memorandum and Order, Apr. 29, 2010). Even

13   assuming, however, that the district court’s explanation for admitting the conviction here fell short

14   of the requisite “on-the-record determination supported by specific facts and circumstances that the

15   probative value of the evidence substantially outweigh[ed] its prejudicial effect,” Zinman, 983 F.2d

16   at 434 (quoting Mahler, 579 F.2d at 736), we conclude that any error was harmless. See Fed. R. Civ.

17   P. 61. “[A]n evidentiary error in a civil case is harmless unless the appellant demonstrates that it

18   is likely that in some material respect the factfinder’s judgment was swayed by the error.” Tesser

19   v. Bd. of Educ. of City Sch. Dist. of City of New York, 370 F.3d 314, 319 (2d Cir. 2004) (internal

20   quotation marks and alterations omitted) (emphasis added). Accordingly, it is necessary to

21   determine whether Farganis has adequately demonstrated that the admission of her prior conviction

22   “substantially swayed” the jury’s verdict. See Rotolo v. Digital Equip. Corp., 150 F.3d 223, 225 (2d

23   Cir. 1998) (internal quotations omitted).

24          The harmless error determination is “highly sensitive to the unique context of the particular

25   case, including the one-sided or closely-balanced nature of the evidence.” Malek v. Fed. Ins. Co.,


                                                       5
 1   994 F.2d 49, 55 (2d Cir. 1993) (internal quotations omitted). Here, Farganis presented little

 2   evidence, aside from her own testimony, that she had been discriminated against by Town of

 3   Montgomery police officers, while multiple witnesses testified that the alleged conduct about which

 4   she complained, including Sergeant Barnett’s supposed tirade, did not occur. Further, “[o]ne

 5   indicator of the evidence’s degree of importance is whether or not [it] bears on an issue that is

 6   plainly critical to the jury’s decision.” Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996). The

 7   very nature of the conviction at issue—occurring thirteen years prior for a petty misdemeanor

 8   offense—renders it unlikely to have substantially swayed the jury’s determination, particularly in

 9   light of the overriding absence of evidence in support of Farganis’s claim. In order to find that

10   erroneously admitted evidence was harmless, “we are not required to conclude that it could not have

11   had any effect whatever.” United States v. Rea, 958 F.2d 1206, 1220 (2d Cir. 1992). Instead, it is

12   sufficient if the evidence at issue was “unimportant” relative to “everything else the jury considered

13   on the issue in question.” Id. (quoting Yates v. Evatt, 500 U.S. 391, 403 (1991)). On our review of

14   the record, we “can conclude with fair assurance that the evidence did not substantially influence

15   the jury.” Id. Accordingly, Farganis has failed to carry her burden of demonstrating that the district

16   court’s admission of her prior conviction was not harmless.

17          We have considered all of Farganis’s other arguments and find them to be without merit.

18   For the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

19
20                                                         FOR THE COURT:
21                                                         Catherine O’Hagan Wolfe, Clerk
22
23
24




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