Scarpa v. Saggese

USCA1 Opinion




February 10, 1994 [NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT

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Nos. 93-1356
93-1672



NAZZARO SCARPA,

Plaintiff, Appellant,

v.

NICHOLAS SAGGESE,

Defendant, Appellee.


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APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF MASSACHUSETTS

[Hon. William G. Young, U.S. District Judge]
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Before

Torruella, Boudin and Stahl,
Circuit Judges.
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Nazzaro Scarpa on brief pro se.
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Albert W. Wallis, Corporation Counsel and William J. Walsh,
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Assistant Corporation Counsel, on brief for appellee.



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Per Curiam. Nazzaro Scarpa sued Nicholas Saggese, a
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Boston police officer, alleging that Saggese used excessive

force in arresting and detaining him on March 1, 1988. A

jury found for Saggese. Scarpa appeals. He also appeals the

subsequent denial of a motion to reconsider the denial of his

motion for a new trial. We affirm.

1. There was no abuse of discretion in the district

court's refusal to continue the trial pending the filing of

an appearance by counsel for Scarpa. Scarpa indicated trial-

readiness in April 1992, by asking for assignment of a trial

date. His request was granted and the case was placed on the

court's running trial list as of September 1992. On March 9,

1993, the case was called for March 15. Despite Scarpa's

April 1992 assertion that he was ready for trial, it appears

that he thereafter attempted to obtain counsel. But, the

earliest indication of interest in the case by an attorney is

mid-February 1993. There is no explanation for the

incongruity of asserting trial-readiness while simultaneously

attempting to obtain counsel, who most assuredly would seek a

continuance. Further, there is no explanation for the delay

until mid-February.

Moreover, the interest expressed by Scarpa's potential

counsel was tentative at best. Counsel never filed an

appearance in the case. Counsel apparently was unwilling to

enter an appearance prior to a court order granting a



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continuance. The court did not abuse its discretion in

declining to continue this trial, initially pressed by Scarpa

eleven months earlier, in the absence of an appearance by

counsel and in the face of such a tentative and contingent

expression of interest.

2. Contrary to Scarpa's contention, the district court

cannot be faulted for failing to secure the attendance of

certain witnesses who, despite a reasonable attempt, were not

found. Scarpa argues that the witnesses should have been

served with subpoenas "months before trial" or a "subpoena

card" should have been left at their addresses. One does not

issue an open-ended subpoena for attendance at trial. The

subpoena must recite the specific trial date, for which

attendance is required. "Every subpoena shall ... command

each person to whom it is directed to attend and give

testimony ... at a time and place therein specified." Fed.

R. Civ. P. 45(a)(1)(C). The trial date was not set until

March 9. Moreover, a subpoena cannot be left at someone's

home; it must be served upon the person. Fed. R. Civ. P.

45(b)(1); see also 9 Charles A. Wright & Arthur R. Miller,
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Federal Practice and Procedure 2461 at 447 (1971).

Scarpa moved for a new trial on the ground that the

marshals' service had not made a reasonable effort to serve

his witnesses, submitting a letter from Attorney Paul F.

Murphy, dated April 26, 1993. The district court correctly



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denied this motion as untimely. See Fed. R. Civ. P. 59(b)
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(motion shall be served not later than ten days after entry

of judgment). The court subsequently denied Scarpa's motion

to reconsider.

On his appeal from this denial, Scarpa contends that his

motion should be construed as a Rule 60(b)(2) motion based on

newly discovered evidence. This is unavailing. Scarpa knew

at trial that the marshals had been unable to effect service.

The information provided in Attorney Murphy's letter is not

newly discovered in a Rule 60(b)(2) sense, i.e., it is not

"newly discovered evidence which by due diligence could not

have been discovered in time to move for a new trial under

Rule 59(b)." And, in any event, the information contained

therein is not inconsistent with, or cast doubt on, the

reasonableness of the attempted service. Attorney Murphy

reiterates that Ms. Carrillo was away at the time of Scarpa's

trial and, as for Ms. McDermatt, the marshals' failure to

serve her appears to have resulted from Scarpa's failure to

provide them with a correct spelling of both her first and

last names and a correct address.

3. Scarpa argues that the court should have granted a

mistrial when Officer LoPriore, Saggese's partner, apparently

unwittingly, violated a witness sequestration order by

remaining in the courtroom during Saggese's testimony.

Determination of a sanction for a violation of a



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sequestration order is within the sound discretion of the

trial court. United States v. Arias-Santana, 964 F.2d 1262,
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1266 (1st Cir. 1992). In this case, the court barred the

testimony of a second witness who also had heard Saggese's

testimony, allowed Scarpa to ask LoPriore whether he had

memorized Saggese's responses, and stated that Scarpa could

argue this inference to the jury. There was no abuse in

discretion in refusing to grant a mistrial.

4. The record does not support Scarpa's allegation

that the jury was coerced into returning a verdict for

Saggese by the modified Allen charge, see Allen v. United
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States, 164 U.S. 492 (1896), given by the court after the
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jury indicated that it could not reach a decision. See
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United States v. Nichols, 820 F.2d 508, 511-12 (1st Cir.
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1987) (approving substantially the same charge in a criminal

case); 9 Charles A. Wright & Arthur R. Miller, Federal

Practice and Procedure 2556 at 663 (1971) (the modified

Allen charge may be properly given in a civil case).
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Affirmed.
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