United States Court of Appeals
United States Court of Appeals
For the First Circuit
For the First Circuit
No. 95-2303
MICHAEL GILL,
Plaintiff, Appellant,
v.
SCOT THOMAS, ETC., ET AL.,
Defendants, Appellees.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE
[Hon. David M. Cohen, U.S. Magistrate Judge]
Before
Selya, Stahl and Lynch,
Circuit Judges.
Cynthia A. Dill for appellant.
Edward R. Benjamin with whom Anne Skopp and Preti, Flaherty,
Beliveau & Pachios were on brief for appellees.
May 15, 1996
STAHL, Circuit Judge. Plaintiff-appellant Michael
STAHL, Circuit Judge.
Gill sought redress under 42 U.S.C. 1983 in Maine's federal
district court for a police officer's alleged use of
excessive force in arresting him following a routine traffic
stop. After a two-day trial before a magistrate judge,1 the
jury returned a verdict for the police officer. Gill appeals
the magistrate judge's denial of his in limine motion to
preclude evidence of his prior misdemeanor convictions.
Because we find that Gill waived his right to appeal the in
limine ruling, we affirm.
I.
I.
Background
Background
A. The Incident
On the night of November 27, 1993, Officer Scot
Thomas of the South Berwick, Maine, Police Department stopped
Michael Gill for driving with defective taillights. After
obtaining Gill's driver's license and registration, Officer
Thomas contacted the police dispatcher from his cruiser and
learned that Gill's privilege to operate a motor vehicle in
Maine had been suspended. Back at Gill's truck, Officer
Thomas notified Gill of the suspension and the resulting need
to arrest him.
1. Under Fed. R. Civ. P. 73, the parties consented to the
magistrate judge, rather than the district judge, conducting
the jury trial.
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Gill and Officer Thomas both agree that the
following sequence of events occurred thereafter: (1) Gill
claimed that the suspension was a mistake, (2) Gill initially
refused Thomas's request to place his hands on the cruiser,
(3) Thomas's police dog bit Gill's arm, (4) Gill threatened
to sue Thomas, and (5) Thomas sprayed Gill's face with mace.
Predictably, however, Gill's and Thomas's stories diverge on
the question of their respective roles in the foregoing
events. While Gill maintains that he offered no physical
resistance to Thomas and therefore the dog's attack and the
mace were an excessive use of force, Officer Thomas contends
that Gill physically resisted his attempts to effect the
arrest and therefore the amount of force was justified.
B. The In Limine Motion and Ruling
Cognizant that his credibility would be the
decisive factor at the impending jury trial, Gill filed a
motion in limine seeking to preclude Thomas from inquiring
about five of Gill's seven misdemeanor convictions.2 In
particular, Gill sought to exclude evidence of his two
convictions for simple assault as well as his convictions for
resisting arrest, criminal mischief, and willful concealment.
Gill argued that because none of the five misdemeanors
involved dishonesty or false statement or was punishable "by
2. Gill conceded that his prior convictions for filing a
false report and theft by deception were admissible under
Fed. R. Evid. 609(a)(2).
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death or imprisonment in excess of one year," they could not
be admitted under Rule 609 of the Federal Rules of Evidence.
Thomas responded that while four3 of the five misdemeanors
were outside the parameters of Rule 609, each was nonetheless
admissible to impeach Gill's answer to interrogatory #7.
Interrogatory #7 asked:
If you have been convicted of a crime
involving potential punishment of one
year or more or involving dishonesty or
moral turpitude, please set forth the
nature of the crime, the date of each
conviction, the name of each court where
the conviction took place, and a full
description of any and all sentences
imposed.
(Emphasis added). Gill replied "No." Thomas argued that
Gill's failure to list the five misdemeanors (each of which
involved terms of imprisonment of "up to one year") as well
as the convictions for filing a false report and theft by
deception (both of which patently involved dishonesty)
constituted a false statement under oath, and Thomas should
be permitted to impeach Gill with this falsity at trial.
After a hearing, the magistrate judge denied the in
limine motion and stated that he would permit Thomas to
question Gill about his convictions for the limited purpose
of illustrating the inconsistency between Gill's
3. Thomas argued that Gill's conviction for willful
concealment may have involved dishonesty or false statement
and requested that the magistrate judge question Gill about
the facts surrounding his commission of this offense in order
to facilitate that determination.
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interrogatory answer and "the apparent fact that he has been
convicted for a number of crimes which would have required
him to answer that interrogatory differently." The
magistrate judge also indicated that he would give a limiting
instruction to the jury if and when such testimony was
elicited.
C. Presentation of the Misdemeanor Evidence at Trial
After opening arguments, Gill took the stand as his
own first witness. In response to his attorney's questions,
Gill described the events surrounding his arrest and then
proceeded to enumerate each of his criminal convictions and
describe the circumstances surrounding them (to the extent he
could remember). For instance, after testifying that he had
been convicted of simple assault on June 10, 1985, Gill
recalled the circumstances of that crime by stating, "I think
that was involved again with the DWI." Gill was alluding to
his previous testimony about a driving-while-intoxicated
incident following which he was convicted for resisting
arrest.
Gill then addressed his answer to interrogatory #7.
Admitting that his answer was inaccurate, Gill explained that
he had mistakenly read the interrogatory to be asking about
felonies and believed that his convictions for filing a false
report and theft by deception did not involve dishonesty.
Finally, Gill squarely addressed his credibility in light of
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his checkered criminal past and erroneous answer to
interrogatory #7, testifying as follows:
Q: Mr. Gill, in light of this long
criminal history that we've just gone
through, including some crimes which
involved some kind of dishonesty, how do
you expect the jury to believe the story
you've just told us about what happened
with Officer Thomas?
A: . . . I quit drinking in 1989 with
the help of a friend and have been trying
since then to turn my life around. . . .
Things that I can change about myself and
I have been changing, and I have since
1989 is I'm not a liar, and I'm not a
thief.
On cross-examination, Officer Thomas also
questioned Gill about his answer to interrogatory #7. For
each of Gill's convictions, Thomas asked whether Gill had
listed that particular conviction in his answer to
interrogatory #7, to which Gill repeatedly answered that he
had not. In the course of inquiring about Gill's January
1983 conviction for resisting arrest and his June 10, 1985,
conviction for assault, Thomas highlighted what had already
been brought out on direct, i.e., that both convictions
involved a police officer who was trying to place Gill in
custody.
Having offered the evidence of his criminal record
himself, Gill neither requested a jury instruction limiting
the purpose for which this evidence could be used nor
objected to Thomas's questions regarding these convictions on
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cross-examination. The jury subsequently returned a verdict
for Officer Thomas, and this appeal ensued.
II.
II.
Analysis
Analysis
Gill appeals the magistrate judge's denial of his
in limine motion, arguing that the five misdemeanor
convictions were inadmissible under Rule 609 of the Federal
Rules of Evidence. Gill maintains that but for the
magistrate judge having indicated that he would permit Thomas
to raise them on cross-examination, Gill never would have
revealed his misdemeanor convictions on direct examination.
Our case law instructs us, however, that Gill chose to
introduce his convictions on direct examination at his peril
and cannot be heard to complain on appeal of the admission of
such evidence.
In Fusco v. General Motors Corp., 11 F.3d 259, 262
(1st Cir. 1993), we held that when a party's in limine motion
to exclude evidence is denied, she cannot rely on her
objection to the in limine ruling to preserve the right to
appeal the admission of the contested evidence. She must
renew her objection at trial "when the evidence is actually
offered."4 Id.; see also Adams v. Fuqua Indus., Inc., 820
4. Fusco also held, however, that where the in limine motion
to exclude is granted and the proponent of the evidence is
unconditionally precluded from presenting the evidence at
trial, the proponent has preserved the issue for appeal and
need not renew the offer at trial. 11 F.3d at 262-63. See
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F.2d 271, 274 (8th Cir. 1987) ("[M]otion in limine does not
preserve error [in subsequent admission of evidence] for
appellate review."); Petty v. Ideco, Div. of Dresser Indus.,
Inc., 761 F.2d 1146, 1150 (5th Cir. 1985) ("[A] party whose
motion in limine is overruled must renew his objection when
the error he sought to prevent is about to occur at trial.").
We require this renewal in order to give the
district court an opportunity to "reconsider the ruling with
the concrete evidence presented in the actual context of the
trial." Fusco, 11 F.3d at 262; see also United States v.
Griffin, 818 F.2d 97, 105 (1st Cir.) (holding that "to raise
and preserve for review the claim of [evidentiary error], a
party must obtain the order admitting or excluding the
controversial evidence in the actual setting of the trial"),
cert. denied, 484 U.S. 844 (1987). Without such a
requirement, the reviewing court would be forced to speculate
whether the party who proposed to offer the evidence would
have done so at trial and whether, if she had offered the
evidence, the district court would have changed its in limine
ruling "in the give-and-take of live testimony." United
States v. Nivica, 887 F.2d 1110, 1115-16 (1st Cir. 1989),
also United States v. Holmquist, 36 F.3d 154, 166 n.12 (1st
Cir. 1994) (discussing situations in which the proponent of
evidence excluded by a pretrial in limine ruling will be
deemed to have preserved the issue for appeal without
proffering the excluded evidence during the trial), cert.
denied, 115 S. Ct. 1797 (1995).
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cert. denied, 494 U.S. 1005 (1990). Thus, Gill cannot rely
solely on his in limine objection to preserve the evidentiary
issue for appeal.
At trial, rather than waiting for Thomas to
introduce the misdemeanors, objecting, and allowing the
magistrate judge to reconsider his in limine ruling, Gill
opted to introduce the misdemeanors preemptively to "remove
the sting" from Thomas's anticipated impeachment. While this
may have been a wise tactical decision, as a consequence,
Gill "opened the door" to Thomas's cross-examination on the
misdemeanors and thereby eliminated any potential evidentiary
error. Moreover, having offered the misdemeanors himself and
having received the strategic benefit therefrom, Gill cannot
now be heard to complain that his own offer of such evidence
was reversible error. See United States v. Williams, 939
F.2d 721, 723-25 (9th Cir. 1991) (holding that by introducing
evidence of conviction himself defendant waived right to
appeal in limine ruling that evidence of prior conviction was
admissible for impeachment); United States v. Bryan, 534 F.2d
205, 206 (9th Cir. 1976) (refusing to allow defendant to
complain about the admission of evidence about a prior
conviction when defendant introduced the offending fact in
the first instance); Shorter v. United States, 412 F.2d 428,
431 (9th Cir.) (same), cert. denied, 396 U.S. 970 (1969).
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To preserve his in limine objection to the
admissibility of the misdemeanor convictions for this appeal,
Gill should have refrained from offering the evidence
himself, waited to see if Thomas introduced them on cross-
examination, and if so, objected then. In sum, Gill's own
action of offering the misdemeanor evidence himself rendered
it admissible. Or stated differently, by offering the
misdemeanor evidence himself, Gill waived his opportunity to
object and thus did not preserve the issue for appeal.
Affirmed.
Affirmed
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