                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


12-2-2008

Boyd v. Wilmington Pol Dept
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1731




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NOT PRECEDENTIAL

                         UNITED STATES COURT OF APPEALS
                              FOR THE THIRD CIRCUIT
                                   _____________

                                        No. 07-1731
                                       _____________

                                    KENNETH A. BOYD,

                                                Appellant

                                                   v.

                        WILMINGTON POLICE DEPARTMENT;
                             CITY OF WILMINGTON




                      On Appeal from the United States District Court
                                 for the District of Delaware
                              District Court No. 05-CV-00178
                      District Judge: The Honorable Sue L. Robinson


                     Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
                                    October 24, 2008

                      Before: RENDELL and SMITH, Circuit Judges,
                               and POLLAK, District Judge *

                                  (Filed: December 2, 2008)


                                           OPINION



       *
        The Honorable Louis H. Pollak, Senior District Judge for the United States District
Court for the Eastern District of Pennsylvania, sitting by designation.

                                               1
SMITH, Circuit Judge.

       On March 22, 2005, Kenneth Boyd, an African-American police officer with the

Wilmington Police Department, filed a civil action against the City of Wilmington (“the

City”) in the United States District Court for the District of Delaware. Boyd brought a

Title VII racial discrimination claim relating to his failure to be promoted to the rank of

sergeant in the Wilmington Police Department. On October 2, 2006, a trial commenced

after the completion of the voir dire and jury selection process. On October 4, 2006, the

jury returned a unanimous verdict in favor of the City, finding that the City did not

discriminate against Boyd when he was not promoted to the rank of sergeant. On October

12, 2006, the District Court entered a judgment in favor of the City; and, on October 26,

2006, Boyd filed a motion for a new trial pursuant to Federal Rule of Civil Procedure

(“FRCP”) 59.

       Boyd asserted two grounds for a new trial: (1) the District Court’s process for

assembling a jury venire violated the Jury Selection and Service Act of 1968 (“the Act”),

28 U.S.C. § 1861, et seq., because it resulted in an under-representation of African-

Americans in the venire, which deprived Boyd of the right to have a jury comprised of a

fair cross-section of the community; and (2) the District Court’s exclusion of

impeachment evidence on cross-examination pursuant to Federal Rule of Evidence

(“FRE”) 403 was an abuse of discretion. On January 16, 2007, the District Court denied

Boyd’s motion as to the first asserted ground, and reserved judgment for the second



                                              2
ground. On February 16, 2007, Boyd filed a motion to certify the District Court’s

judgment pursuant to FRCP 54(b), and the following week, the District Court granted the

Certification of Judgment. On March 9, 2007, Boyd filed a Notice of Appeal pursuant to

the certified judgment. On November 1, 2007, the District Court denied Boyd’s motion

for a new trial as to the second asserted ground, and Boyd subsequently filed an Amended

Notice of Appeal on November 27, 2007.

       The issues on appeal are (1) whether the District Court erred in denying Boyd’s

motion for a new trial on the ground that the District Court’s process for assembling a

jury venire violated the Act, and (2) whether the District Court abused its discretion in

denying Boyd’s motion for a new trial on the ground that, during trial, the District Court

improperly excluded impeachment evidence on cross-examination pursuant to FRE 403.

The District Court exercised jurisdiction pursuant to 28 U.S.C. § 1331. We exercise

jurisdiction pursuant to 28 U.S.C. § 1291.1

       Our standard of review for the first issue is plenary because the District Court’s

denial of the motion for a new trial was “based upon the interpretation and application of

a legal precept.” Koshatka v. Phila. Newspapers, Inc., 762 F.2d 329, 333 (3d Cir. 1985).




       1
         We do not need to reach the jurisdictional issue of whether the January 16, 2007
order was final within the meaning of 28 U.S.C. § 1291 and was properly certified
pursuant to FRCP 54(b). See Carter v. City of Phila., 181 F.3d 339 (3d Cir. 1999). Even
if the March 9, 2007 Notice of Appeal was premature, it ripened after the District Court’s
entry of judgment on the remaining issue on November 1, 2007. Fed. R. App. P. 4(a)(4);
see also Lazy Oil Co. v. Witco Corp., 166 F.3d 581, 587 (3d Cir. 1999).

                                              3
Our standard of review for the second issue is abuse of discretion. Link v. Mercedes-Benz

of N. America, Inc., 788 F.2d 918, 921–22 (3d Cir. 1986)

       The Act under which Boyd brings his jury selection claim has a statute of

limitations provision:

       In civil cases, before the voir dire examination begins, or within seven days
       after the party discovered or could have discovered, by the exercise of
       diligence, the grounds thereof, whichever is earlier, any party may move to
       stay the proceedings on the ground of substantial failure to comply with the
       provisions of this title in selecting the petit jury.

28 U.S.C. § 1867(c). Boyd did not raise his jury selection claim until 21 days after the

verdict and 14 days after the entry of judgment. He argues that he was put on notice of

this issue only after Juror Number 5, who was the lone African-American juror, claimed

that the other jurors would not allow her to participate in the deliberation process.

       Setting aside the fact that Boyd was charged with breaking Delaware law by

misusing the Wilmington Police Department’s computer systems to track down Juror

Number 5, Boyd admits in his briefing that his counsel was well aware before voir dire

that the District Court’s jury selection procedures allegedly result in an under-

representation of African-Americans in the venire. On June 2, 2005, which was 16

months prior to Boyd’s trial, Boyd’s counsel raised this same jury selection issue in a

different case before the same District Court. Miller v. Town of Milton, C.A. No. 03-876

(SLR). In the Miller case, Chief Judge Robinson determined that this objection lacked

merit. In the present case, Boyd admits that “[i]n light of Chief Judge Robinson’s prior



                                              4
determination that a challenge to the jury venire was fruitless, Boyd’s counsel did not

challenge the venire in the Boyd jury selection process.” Brief of Appellant at 11.

Boyd’s failure to raise this claim at the time of voir dire is fatal to his claim pursuant to §

1867(c); as a result, we will affirm the District Court.

       Boyd’s evidentiary claim is based on the District Court’s determination not to

allow Boyd’s counsel to cross-examine Lieutenant Mitchell Rock, a defense witness,

regarding Lt. Rock’s alleged use of racial slurs. We conclude that the District Court did

not abuse its discretion in upholding the ruling that this evidence was properly excluded

under FRE 403. The evidence had little to no probative value because Lt. Rock had

absolutely no role in the Wilmington Police Department’s promotion process and Lt.

Rock was never in a supervisory position to Boyd; furthermore, the evidence would have

been highly prejudicial and confusing. See Figures v. Bd. of Pub. Util. of the City of Kan.

City, Kan., 967 F.2d 357, 360–61 (10th Cir. 1992).

       For the reasons stated above, we will affirm the judgment of the District Court.




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