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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