Scarpa v. Saggese ( 1994 )

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          February 10, 1994     [NOT FOR PUBLICATION]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,
               ________________                           ________________
          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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