DocketNumber： 92-1877
Filed Date： 11/25/1992
Status： Precedential
Modified Date： 9/21/2015
November 25, 1992 [NOT FOR PUBLICATION]
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 92-1877
ALBERT PONGONIS,
Plaintiff, Appellant,
v.
RONALD DESANTIS, ET AL.,
Defendants, Appellees.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
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Before
Breyer, Chief Judge,
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Torruella and Cyr, Circuit Judges.
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Albert Pongonis on brief pro se.
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David C. Jenkins, Gallagher and Gallagher P.C. and Robert J.
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O'Sullivan on brief for appellees.
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Per Curiam. Plaintiff-appellant filed a civil rights
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action (plus pendent state claims) against Ronald De
Santis, a Lawrence police officer, the City of Lawrence, and
the city's police chief. Among other things, plaintiff
contended that De Santis had unlawfully arrested plaintiff
without probable cause and had used excessive force. The
case was tried by consent to a jury presided over by a
magistrate. At the close of the evidence, the magistrate
directed a verdict for the city and police chief on the
grounds, principally, that plaintiff had not presented either
any evidence of a municipal policy, practice or custom upon
which to predicate municipal civil rights liability nor any
basis for supervisory liability of the police chief. The
jury found for defendant De Santis. The magistrate also
found for defendants on the equitable claims tried to the
court. Plaintiff has appealed.
Plaintiff's appellate brief contains a recitation of his
version of the evidence. He has failed, however, to provide
us with a copy of the trial transcript. Consequently, to the
extent he is attacking the sufficiency of the evidence
underlying the jury verdict or the magistrate's rulings, he
has forfeited appellate review by failing to order the
transcript. Muniz Ramirez v. Puerto Rico Fire Services, 757
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F.2d 1357, 1358 (1st Cir. 1985) ("When an appellant raises
issues that are factually dependent yet fails to provide a
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transcript of the pertinent proceedings in the district
court, this circuit . . . has repeatedly held that we will
not review the allegations."). We turn to appellant's other
arguments.
1. Appellant argues that Magistrate Cohen should have
disqualified himself from presiding at the trial because
defense counsel had requested at a pre-trial conference that
Magistrate Cohen be designated as the trial judge. We
disagree. The docket indicates that, beginning in 1990,
motions were referred to Magistrate Cohen. Consequently, in
view of Magistrate Cohen's familiarity with the case, it
would have made sense for Magistrate Cohen to preside over
the trial in the event the parties consented (as they
eventually did) to trial before a magistrate. Therefore,
even if defense counsel did ask for Magistrate Cohen to
preside, we see no basis for bias or disqualification.
Moreover, there is no indication that appellant objected
prior to trial to Magistrate Cohen presiding. Appellant's
unsupported allegation in his motion for new trial, filed
after the jury and magistrate had found against him, that
Magistrate Cohen was a "friend" of defense counsel is not
sufficiently specific to require recusal.
2. Appellant contends he was unable to prove his case
because he was not permitted to depose and subpoena witnesses
at government expense. Plaintiff's reliance on Fed. R. Cr.
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P. 17(b) as authority for subpoenas at government expense is
misplaced as Rule 17 does not apply to civil cases.
Most courts have concluded that an indigent has no
constitutional or statutory right to have witness or
deposition costs provided at government expense in a civil
case. Tedder v. Odel, 890 F.2d 210 (9th Cir. 1989); Boring
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v. Kozakiewicz, 833 F.2d 468, 474 (3rd Cir. 1987), cert.
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denied, 485 U.S. 991 (1988); Johnson v. Hubbard, 698 F.2d
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286, 288-90 (6th Cir. 1983), cert. denied, 464 U.S. 917
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(1983); McNeil v. Lowney, 831 F.2d 1368, 1373 (7th Cir.
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1987), cert. denied, 485 U.S. 965 (1988); United States
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Marshals Service v. Means, 741 F.2d 1053, 1056-57 (8th Cir.
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1984); Newson v. Harrison, 687 F.Supp. 360 (W.D. Tenn. 1988).
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We need not address the issue, however, because appellant has
not indicated the relevance of the witnesses he was unable to
examine.
In his motion for new trial, appellant complained that
he had wanted to subpoena all the vendors at the flea market
where appellant was arrested, but Magistrate Cohen allowed
only two or three vendors to appear on appellant's behalf.
We see no indication on the district court docket or in the
materials plaintiff has presented that he ever filed a motion
requesting witness subpoenas and explaining the relevance of
the witnesses. Nor on appeal has appellant explained what
the non-testifying vendors could have added. In any event,
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the magistrate would have had discretion to exclude
cumulative evidence. On the record before us, therefore, we
find no error.
3. Appellant challenges the magistrate's denial of
appellant's motion to ask potential jurors whether they had
ever had friends or relatives employed in a law enforcement
field. We have said that when government agents are key
witnesses, the trial court should ordinarily ask prospective
jurors whether they are "inclined to have greater faith in
the agents' testimony merely by virtue of their official
position." United States v. Victoria-Peguero, 920 F.2d 77,
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84 (1st Cir. 1990), cert. denied, 111 S. Ct. 2053 (1991).
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Appellant, however, did not request this question. Rather,
he wanted to know whether any jurors had "close friends,
relatives or family members in . . . any branches of the law
enforcement field." Having a friend or relative who is a law
enforcement officer, however, is not a ground for automatic
disqualification. See United States v. Lawrence, 952 F.2d
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1034, 1037 (8th Cir. 1992) (court did not abuse its
discretion in crediting a juror who said that his connection
to law enforcement would not influence his decision making),
cert. denied, 112 S. Ct. 1777 (1992); Depree v. Thomas, 946
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F.2d 784, 788-92 (11th Cir. 1991) (court did not err in
rejecting defendant's challenges to two jurors with ties to
law enforcement). Moreover, as appellant has not provided us
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with a transcript of the voir dire and trial, we can not tell
whether the magistrate did in fact question the jurors
concerning potential bias in favor of law enforcement
officers or instruct them against any such bias. See United
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States v. Victoria-Peguero, 920 F.2d at 85 (court's failure
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to voir dire prospective jurors concerning bias in favor of
law enforcement officers was not reversible error in view of
surrounding circumstances, including instruction that
government agents are entitled to no more credibility than
any other witness). On the present record, appellant has
failed to show error.
Affirmed.
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Norman E. Tedder v. Edward Odel, Cpl., James Scott McAlister , 890 F.2d 210 ( 1989 )
William McNeil v. Mary A. Lowney , 831 F.2d 1368 ( 1987 )
terry-alan-boring-andrew-calhoun-weldon-fells-dale-e-geidel-ronald , 833 F.2d 468 ( 1987 )
united-states-marshals-service-v-william-a-means-mathew-king-aka , 741 F.2d 1053 ( 1984 )