08-0194-pr
Bacon v. United States

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                        SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO SUM M ARY
ORDERS FILED AFTER JANUARY 1, 2007, IS PERM ITTED A ND IS GOVERNED BY THIS COURT’S
LOCAL RULE 32.1 AND FEDERAL RULE OF APPELLATE PROCEDURE 32.1. IN A BRIEF OR OTHER
PAPER IN W HICH A LITIGANT CITES A SUM M ARY ORDER, IN EACH PARAGRAPH IN W HICH A
CITATION APPEARS, AT LEAST ONE CITATION M UST EITHER BE TO THE FEDERAL APPENDIX OR
BE ACCOM PANIED BY THE NOTATION: (SUM M ARY ORDER). A PARTY CITING A SUM M ARY
ORDER M UST SERVE A COPY OF THAT SUM M ARY ORDER TOGETH ER W ITH THE PAPER IN
W HICH THE SUM M ARY ORDER IS CITED ON ANY PARTY NOT REPRESENTED BY CO UNSEL
UNLESS THE SUM M ARY ORDER IS AVAILABLE IN AN ELECTRONIC DATABASE W HICH IS
PUBLICLY ACCESSIBLE W ITHOUT PAYM ENT OF FEE (SUCH AS THE DATABASE AVAILABLE AT
HTTP://W W W .CA2.USCOURTS.GOV/). IF NO COPY IS SERVED BY REASON OF THE AVAILABILITY
OF THE ORDER ON SUCH A DATABASE, THE CITATIO N M UST INCLUDE REFERENCE TO THAT
DATABASE AND THE DOCKET NUM BER OF THE CASE IN W HICH THE ORDER W AS ENTERED.


       At a stated term of the United States Court of Appeals for the Second Circuit, held
at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
New York, on the 11 th day of December, two thousand nine.

PRESENT:
                 JOHN M. WALKER, JR.,
                 REENA RAGGI,
                                 Circuit Judges,
                 JED S. RAKOFF,
                                 District Judge.*
--------------------------------------------------------------
BRIAN BACON,
                                 Plaintiff-Appellant,
                 v.                                                         No. 08-0194-pr

UNITED STATES,
                                 Defendant-Appellee.
--------------------------------------------------------------
FOR APPELLANT:                                    BRIAN BACON,        pro    se,   White Deer,
                                                  Pennsylvania.

FOR APPELLEE:                                     WILLIAM F. LARKIN, Assistant United States


          *
         District Judge Jed S. Rakoff of the United States District Court for the Southern
District of New York, sitting by designation.
                                            Attorney, for Andrew T. Baxter, Acting United
                                            States Attorney for the Northern District of New
                                            York, Syracuse, New York.

       Appeal from the United States District Court for the Northern District of New York

(David E. Peebles, Magistrate Judge).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment entered on November 27, 2007, is AFFIRMED.

       Brian Bacon, a federal prison inmate, appeals pro se from a judgment in favor of the

United States entered after a bench trial on his claim that federal corrections officers acted

negligently while escorting him to his cell, with the result that he fell and was injured. See

28 U.S.C. §§ 1346(b), 2671-80. Bacon contends that the district court erred by (1) permitting

the government to cross-examine him regarding certain aspects of his deposition testimony;

(2) requiring him to participate in trial via telephone from prison; (3) crediting the testimony

of a corrections officer; and (4) not reaching the issue of causation. We assume familiarity

with the facts and the record of prior proceedings, which we reference only as necessary to

explain our decision to affirm.

       1.     Cross-Examination

       Bacon asserts that the district court erred by permitting him to be cross-examined

regarding statements contained in a letter in which he appeared to request assistance with

smuggling contraband and whose discovery prompted disciplinary action. We review a

district court’s evidentiary rulings for abuse of discretion, reversing only where a party’s



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substantial rights have been affected. See United States v. Wexler, 522 F.3d 194, 201-02 (2d

Cir. 2008). A trial judge has “broad discretion” in determining the permissible scope of

cross-examination. United States v. Wilkerson, 361 F.3d 717, 734 (2d Cir. 2004) (internal

quotation marks omitted).

       We identify no abuse of discretion in the district court’s decision to permit cross-

examination regarding deposition statements indicating that Bacon’s letter was part of a

“scheme” to obtain money, Bacon Dep. Tr. at 72, as these bore on his truthfulness, see Fed.

R. Evid. 608(b) (“Specific instances of the conduct of a witness . . . may . . . in the discretion

of the court, if probative of truthfulness or untruthfulness, be inquired into on cross-

examination . . . .”); Hynes v. Coughlin, 79 F.3d 285, 293-94 (2d Cir. 1996).

       2.      Trial Participation

       Bacon submits that the district court erred in having him participate in the bench trial

by telephone rather than in person. Because Bacon was incarcerated, the district court

offered him two alternatives: (1) submit testimony on videotape and participate in the trial

itself both via live audio link and through the appearance in person of his counsel; or (2)

delay trial until his release in 2010 when he could appear in person. Bacon elected and

exercised the former option.         Reviewing Bacon’s challenge to the district court’s

management of trial for abuse of discretion, see United States v. Yakobowicz, 427 F.3d 144,

150 (2d Cir. 2005), we detect none. Moreover, even if Bacon had a right to be present at his

own civil trial, which we need not here decide, cf. Fillippon v. Albion Vein Slate Co., 250



                                                3
U.S. 76, 81 (1919) (noting right of parties to be present at civil trials “in person or by

counsel” (emphasis added)), we would conclude that his selection effectively waived any

such right, cf. Clark v. Stinson, 214 F.3d 315, 323 (2d Cir. 2000) (holding right to be present

at one’s own criminal trial is “clearly waivable” (internal quotation marks omitted)). Indeed,

his counsel expressly consented, on the record – in Bacon’s hearing and without his objection

– to Bacon’s electronic participation.

       3.     Credibility Determination

       Bacon challenges the district court’s decision to credit the testimony of corrections

officer Steven Robla rather than of Bacon regarding aspects of the relevant events. After a

bench trial, we review the district court’s factual findings, including its findings as to

credibility, for clear error, see Reynolds v. Giuliani, 506 F.3d 183, 189 (2d Cir. 2007), and

we identify none here. Where a district court is presented with two permissible views of the

evidence, its decision to credit one view over another “cannot be clearly erroneous.” See

Vasquez v. GMD Shipyard Corp., 582 F.3d 293, 297 (2d Cir. 2009) (internal quotation marks

omitted).

       4.     Causation

       Finally, we reject Bacon’s assertion that the district court erred by not reaching the

question of causation. We review this claim of legal error de novo. See Reynolds v.

Giuliani, 506 F.3d at 189. Under New York law, which governs Bacon’s federal tort claim,

see 28 U.S.C. § 1346(b)(1), a plaintiff alleging negligence must prove: (1) the existence of



                                              4
a duty; (2) a breach of that duty; (3) a “reasonably close causal connection” between

defendants’ conduct and his injury; and (4) “actual loss, harm or damage,” Integrated Waste

Servs. v. Akzo Nobel Salt, Inc., 113 F.3d 296, 299 (2d Cir. 1997) (internal quotation marks

omitted). Because the district court found that Robla had not breached the duty owed Bacon,

there was no need for it to reach the issue of causation.

       We have considered Bacon’s remaining arguments on appeal, and we conclude that

they are without merit. Accordingly, the judgment of the district court is AFFIRMED.

                                           FOR THE COURT:
                                           CATHERINE O’HAGAN WOLFE, CLERK




                                           By:__________________________




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