DocketNumber： 93-1356
Filed Date： 2/11/1994
Status： Precedential
Modified Date： 9/21/2015
February 10, 1994 [NOT FOR PUBLICATION]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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