
USCA1 Opinion

	




             [Appendix not attached to this copy of the opinion.  Please              contact Clerk's Office for copy of opinion with appendix.]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT                              _________________________          No. 94-1974                                    GREGORY MOORE,                                Plaintiff, Appellant,                                         v.                                      PAUL MURPHY,                                 Defendant, Appellee.                              _________________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                   [Hon. Nathaniel M. Gorton, U.S. District Judge]                                              ___________________                              _________________________                                        Before                                Selya, Cyr and Boudin,                                   Circuit Judges.                                   ______________                              _________________________                    Jennifer  Petersen,  with whom  Andrew Stockwell-Alpert                    __________________              _______________________          and Joanne S. Forkner were on brief, for appellant.              _________________               Howard  Friedman  and  Sarah   Wunsch  on  brief  for  Civil               ________________       ______________          Liberties Union of Massachusetts, amicus curiae.               Thomas  C.  Tretter,  Asst.  Corporation  Counsel,  City  of               ___________________          Boston,  with whom Albert W.  Wallis, Corporation Counsel, was on                             _________________          brief, for appellee.                              _________________________                                   February 1, 1995                              _________________________                    SELYA,  Circuit  Judge.   Appellant  seeks  to have  us                    SELYA,  Circuit  Judge.                            ______________          prescribe a  remedy, yet  denies us  access to  any authoritative          information  about  the  etiology  of  the  patient's  condition.          Consequently,  we  cannot  dispense  the  requested  relief  and,          therefore, decline  to disturb the district  court's treatment of          the case.                                          I                                          I                    During  the evening  of  February  8, 1991,  defendant-          appellee Paul Murphy and his partner, Andrew Garvey, were working          as  undercover  police  detectives.    They  observed  plaintiff-          appellant Gregory Moore on  the street near 2 Waverly  Street, in          the Roxbury section of Boston, Massachusetts.  Believing Moore to          be engaged  in a  narcotics transaction, the  officers approached          him.  Violence erupted.  Moore sustained injuries.1                    In  due  course, Moore  sued  the  officers in  federal          district court for, inter  alia, federal civil rights violations,                              _____  ____          42  U.S.C.   1983 (count 1), state civil rights violations, Mass.          Gen. L.  ch. 12,   11I  (MCRA) (count 2), and  common law assault          and battery (count 3).  These three counts were tried  to a jury.          At the close of the evidence, the court instructed on the law and          gave  the jurors  a  verdict form  (the Form)  soliciting special          findings.  See Fed. R. Civ. P. 49(a).  When the jury finished its                     ___                                        ____________________               1The  parties  offer  markedly  different  versions  of  the          critical  events.   Moore  claims that  Murphy  placed him  in  a          chokehold, from behind, without  warning or cause.   The officers          claim that  Moore, fearing  arrest, attempted to  swallow several          packets  of crack cocaine, and  that a struggle  ensued when they          tried to prevent him from doing so.                                          2          deliberations,  it tendered the completed Form to the court.2  On          the Form, the jury  found for both defendants on the section 1983          claim;  found that Murphy, not Garvey, had violated the MCRA, but          that, in  all  events,  no "harm"  was  "proximately  caused"  by          Murphy's  transgression; and  found  for both  defendants on  the          common law  claim.  A  few days later the  district court entered          judgment in favor of both defendants on all three counts.                    Moore moved for a new trial, Fed. R. Civ. P. 59(a), and          to  alter or  amend the  judgment, Fed.  R. Civ.  P. 59(e).   The          district court denied the motions.  This appeal followed.                                          II                                          II                    On appeal, Moore does  not contest the jury's findings.          Instead, he argues that, given those findings, the district court                                   _____ _____ ________          had an obligation to enter judgment in his favor, against Murphy,          on count 2 of the complaint (for nominal damages).  This argument          depends on a synthesis of federal and state law, leading Moore to          conclude that, once the jury found that Murphy violated the MCRA,          Moore's  entitlement  to a  favorable  judgment  vested, and  the          jury's subsequent finding    that the violation caused no  harm            was relevant only  to damages.   Moore's argument  in support  of          this thesis  is intellectually interesting, but eludes meaningful          appellate review.  Hence, we cannot honor it.                    The mission  of the  appellate judiciary is  neither to          mull  theoretical  abstractions  nor  to  practice  clairvoyance.          Rather,  appellate  judges  fulfill  their  review   function  by                                        ____________________               2We reproduce the Form as Appendix A.                                          3          matching applicable principles of law to the discerned facts  and          circumstances  of  litigated cases.    Where,  as here,  a  party          seeking appellate  review fails to  furnish the basic  tools that          the  court needs  to  carry out  its  task, that  party  loses by          default.    In  the  succeeding sections,  we  expound  upon this          doctrine and demonstrate its applicability here.                                          A                                          A                    Fed.  R.  App.  P.  10(b)(1)  directs  parties  seeking          judicial review to procure  and file "a transcript of  such parts          of the proceedings [below]  not already on file" as  is necessary          to  enable the court of appeals to place the parties' contentions          into  perspective.3  This rule  imposes a duty  upon an appellant          "to print  all of  the evidence,  good and  bad, material to  the          point he  wishes to raise."  Chernack v. Radlo, 331 F.2d 170, 171                                       ________    _____          (1st Cir. 1964).   Should an appellant spurn this  duty and drape          an  incomplete record around the  court's neck, the  court in its          discretion either may  scrutinize the merits of the  case insofar          as the record permits, or  may dismiss the appeal if  the absence          of a full  transcript thwarts  intelligent review.   See Fed.  R.                                                               ___          App. P. 3(a); United States v. One Motor Yacht Named Mercury, 527                        _____________    _____________________________          F.2d 1112, 1113 (1st Cir. 1975).  In this vein, we have held with          a regularity bordering  on the monotonous that, should the record          provided  on appeal prove  to be so  deficient as to  preclude us                                        ____________________               3Rule 10 also describes alternate devices that may from time          to time obviate the need for a trial transcript.  See, e.g., Fed.                                                            ___  ____          R. App. P.  10(d) (permitting use  of an agreed statement  of the          record on appeal).   Appellant did not employ any  such surrogate          here.                                          4          from  reaching a reasoned determination on the merits, "it is the          appellant  who must bear the  brunt of an  insufficient record on          appeal."  Real v. Hogan, 828  F.2d 58, 60 (1st Cir. 1987); accord                    ____    _____                                    ______          Jardines Bacata, Ltd.  v. Diaz-Marquez, 878  F.2d 1555, 1559  n.5          _____________________     ____________          (1st Cir. 1989); Valedon Martinez v. Hospital Presbiteriano de la                           ________________    ____________________________          Comunidad, Inc., 806 F.2d 1128, 1135 (1st Cir. 1986);   One Motor          _______________                                         _________          Yacht Named Mercury, 527 F.2d at 1113.          ___________________                                          B                                          B                    In prosecuting  the instant appeal, Moore  created just          such a problem:  he failed to provide this court with any part of          the trial  transcript.  In  the particular circumstances  of this          case,  his omission  leaves  us no  choice  but to  jettison  his          appeal.  We explain briefly.                    Moore's  appeal  depends  on   the  viability  of   his          contention that  causation is not  an element of  liability under          the MCRA.   However, the Form  strongly suggests that the   trial          court  told the jury the  opposite; after all,  the Form directed          the  jurors,  if  they  answered   either  part  of  Question  #3          affirmatively (that  is, if they  found that  one or both  of the          defendants  "violate[d]  Gregory  Moore's   state  constitutional          rights  by threat,  intimidation  or coercion"),  to "proceed  to          Question #4"  (the inquiry into causation),  and further directed          the jurors to proceed  to Question #9 (the inquiry  into damages)          only upon an affirmative  answer to Questions #2,  #4, #6, or  #8          (not  upon  an affirmative  answer to  Question  #3).   See infra                                                                  ___ _____          Appendix A.  The judge's entry of a judgment in Murphy's favor on                                          5          count  2 suggests  the  same  perceived  linkage between  a  MCRA          violation  and some  ensuing harm.   Even  if this  insistence on          proof of  a  causal connection  were error  in the  abstract    a          matter on  which we do not  opine   it would  be reversible error          only if properly preserved.  And  there is simply no way, without          a more complete record, that we can make such a determination.                    Murphy  asserts   and, in the absence of a full record,          we  take  as  true      that  appellant  did  not   make  timely,          appropriately specific  objections to  the district  court's jury          instructions or to the  court's promulgation of the Form.   These          are important points, not mere technicalities.                    The Civil Rules declare that parties must object to the          court's  charge   at  a  particular  time   and  with  reasonable          specificity. See  Fed. R. Civ. P.  51.  The failure  to object to                       ___          the  instructions at the time,  and in the  manner, designated by          Rule 51 is treated as a  procedural default, with the result that          the  jury instructions, even if erroneous, become the law of that          particular case.   See La Amiga  del Pueblo, Inc.  v. Robles, 937                             ___ __________________________     ______          F.2d  689, 690-91 (1st Cir. 1991); Milone v. Moceri Family, Inc.,                                             ______    ___________________          847 F.2d 35, 38-39 (1st Cir. 1988); Murphy v. Dyer, 409 F.2d 747,                                              ______    ____          748  (10th Cir. 1969).   Federal court practice  imposes the same          duty of diligence in  regard to special verdict forms.   "Silence          after  instructions, including  instructions on  the form  of the          verdict  to be  returned  by the  jury,  typically constitutes  a          waiver of any objections."  Putnam Resources v. Pateman, 958 F.2d                                      ________________    _______          448, 456 (1st Cir. 1992) (collecting cases).                                          6                    To  be   sure,  an   appellate  court  may   review  an          unpreserved error if the error is "plain."  See,  e.g., Poulin v.                                                      ___   ____  ______          Greer, 18  F.3d 979, 982 (1st Cir. 1994).  However, this doctrine          _____          is reserved for  use in  only the  most egregious  circumstances.          See  id.    Normally, the  appellant must  show that  the alleged          ___  ___          error seriously affected the fairness  or integrity of the trial.          See Toscano v. Chandris, S.A., 934 F.2d 383, 385 (1st Cir. 1991);          ___ _______    ______________          United  States v.  Griffin, 818  F.2d 97,  100 (1st  Cir.), cert.          ______________     _______                                  _____          denied, 484 U.S. 844 (1987).          ______                    The mistake that Moore attributes to the lower court in          this case cannot  by any  stretch of the  most vivid  imagination          vault  the plain  error  hurdle.4   Given  the unchallenged  jury          verdicts on counts 1 and 3, and the findings  that underpin those          verdicts,  we see no  manifest injustice in  the district court's          entry of judgment against the plaintiff on count 2.                                         III                                         III                    We need go  no further.5  It is apparent that we cannot          intelligently determine the merits of this appeal without a trial          transcript.   Since appellant  bears the responsibility  for this          omission,  he  must  bear the  resultant  onus.    Cf. Hosea  8:7                                                             ___          (explaining that  those who "sow  the wind .  . . shall  reap the                                        ____________________               4Indeed,  to the  extent that  Moore  relies upon  the plain          error doctrine to extricate himself from his self-dug hole, he is          at  a  decided  disadvantage;  lacking  a  trial  transcript,  an          appellate  court  is  unlikely  to  be  able   to  determine  the          egregiousness of many types of errors.  So it is here.               5Murphy  argues, inter  alia,  that,  causation  aside,  the                                _____  ____          jury's answers on the Form established  only a putative violation          of plaintiff's  rights, not an  interference with  some right  to          which  the  MCRA  pertains.   We  need  not  reach this  somewhat          convoluted argument, and, accordingly, we take no view of it.                                          7          whirlwind").  The judgment below is, therefore,          Affirmed.          Affirmed.          ________                                          8
