Sims v. Blot , 354 F. App'x 504 ( 2009 )

09-2060-pr
Sims v. Blot
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
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At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Daniel Patrick Moynihan
United States Courthouse, 500 Pearl Street, in the City of
New York, on the 25 th day of November, two thousand nine.
PRESENT: DENNIS JACOBS,
Chief Judge,
AMALYA L. KEARSE,
Circuit Judge
PAUL G. GARDEPHE, *
District Judge.
__________________________________________
Nathaniel Sims,
Plaintiff-Appellant,
v. 09-2060-pr
Mike J. Blot, Correctional Officer, Francisco Caraballo,
Correctional Officer,
Defendants-Appellees.
__________________________________________
*
Paul G. Gardephe, Judge of the United States District
Court for the Southern District of New York, sitting by
designation.
APPEARING FOR APPELLANT: Antony L. Ryan, MARC J.
KHADPE, Cravath Swain &
Moore LLP, New York, NY.
APPEARING FOR APPELLEES: SASHA SAMBERG-CHAMPION,
Barbara D. Underwood,
Michael S. Belohlavek,
Robert C. Weisz (Andrew M.
Cuomo on the brief), Office
of the Attorney General,
New York, NY.
Appeal from a judgment of the United States District
Court for the Southern District of New York (Preska, J.).
UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of the district court be
AFFIRMED.
Plaintiff Nathaniel Sims, an inmate in Sing Sing
Correctional Facility, appeals from a judgment of the United
States District Court for the Southern District of New York
(Preska, J.), entered on April 14, 2009 after a jury
verdict. We assume the parties’ familiarity with the
underlying facts, the procedural history of the case, and
the issues on appeal.
This action under 42 U.S.C. § 1983 arises out of an
altercation between Sims and the defendant-appellees, both
guards at the prison. The jury found for the defendants.
On appeal, plaintiff seeks vacatur and a new trial, arguing
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there were improper jury instructions and that evidence was
improperly admitted.
The propriety of jury instructions is a question of law
that we review de novo. United States v. Wilkerson, 361
F.3d 717, 732 (2d Cir. 2004).
Sims objected at trial to the following jury
instruction:
If you find that any witness has willfully testified
falsely as to any material matter, you have the right
to reject the testimony of that witness in its
entirety. On the other hand, even if you find that a
witness has testified falsely or inaccurately about one
matter, you may reject as false or inaccurate that
portion of his or her testimony and accept as true any
other portion of his or her testimony.
It was not in error for the judge to give this
instruction to the jury. This Court has never held that
giving this instruction constitutes error. See United
States v. James, 239 F.3d 120, 122 n.2 (2d Cir. 2000) (“In
this case we need not pass upon the merits of giving or not
giving a falsus in uno instruction.”). As the district
court made it clear that the jury may--but need not--
evaluate testimony on the basis of material falsehoods, the
instruction was not given in error.
Sims challenges a second instruction: that his status
as a convicted felon of a crime punishable by more than one
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year in prison could be considered for the--expressly
limited--purpose of evaluating his credibility as a witness.
This instruction fits within commonly accepted
practices and did not mislead the jury as to the proper
legal standard; therefore, it was not in error. See Fed. R.
Evid. 609 (such evidence is admissible for impeachment);
see also United States v. Corcione, 592 F.2d 111, 116 (2d
Cir. 1979) (upholding an instruction on examining felon
witnesses’ testimony more closely based in part on their
status as criminals); 4 Leonard B. Sand, et al., Modern
Federal Jury Instructions-Civil, § 76-6 (2009) (giving
similar model jury instruction).
Plaintiff argues that evidence of his prior bad acts in
prison was used, in violation of Federal Rule of Evidence
404(a), to demonstrate propensity. Fed. R. Evid. 404(a);
see Hynes v. Coughlin, 79 F.3d 285 (2d. Cir. 1996). Under
Federal Rule of Evidence 404, prior bad acts are
inadmissible to establish character and “action in
conformity therewith on a particular occasion,” Fed. R.
Evid. 404(a); but they may be used “for other purposes, such
as proof of motive, opportunity, intent, preparation, plan,
knowledge, identity, or absence of mistake or accident.”
Fed. R. Evid. 404(b).
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The admission of prior bad acts evidence is reviewed
for abuse of discretion. United States v. Lombardozzi, 491
F.3d 61, 78-79 (2d Cir. 2007). Discretion is abused “only
if the judge acted in an arbitrary and irrational manner.”
Id. at 79. “This Court reviews 404(b) evidence under an
inclusionary approach and allows evidence for any purpose
other than to show a defendant’s criminal propensity." Id.
at 78 (internal quotation marks omitted).
The evidence of Sims’s prison conduct was admissible
under 404(b), primarily under the “proof of motive”
exception. Fed. R. Evid. 404(b). Sims repeatedly stated in
his testimony that the defendants had a grudge against him
due to his bad conduct, and that this grudge was their
motive for assaulting him. Most of the disputed testimony
goes to the motive that plaintiff attempts to establish;
some of this testimony was even elicited by plaintiff’s
counsel or clarified points from plaintiff’s examination.
Defendants referred to Sims’s misconduct but did not dwell
on it; to the contrary, they denied that his behavior was
unusual for his prison unit in order to rebut Sims’s
contention that his misconduct was a motive for an assault
by the guards.
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There was another reference to prior bad acts. On
direct, plaintiff claimed he had a medical condition that
limited his ability to turn around suddenly, and was,
therefore, unlikely to have whirled around to attack one of
the guards, as the guards testified. Cross examination
elicited from Sims that he had twice--after the onset of his
condition--been disciplined for assaulting staff. Even
assuming arguendo that such testimony was admitted in error,
the error would be harmless. The entire exchange consisted
of nine lines of trial testimony; those disciplinary
violations were never mentioned again; and the questions as
framed were relevant to Sims’s injury rather than to
propensity. As the controversial testimony was so minor in
comparison with the evidence supporting the prison guards’
account, it seems clear that this disputed evidence did not
“substantially influence the jury,” and so, even if the
testimony was admitted in error, any error was harmless.
Hynes v. Coughlin, 79 F.3d 285, 291 (2d Cir. 1996).
Plaintiff challenges references made to his presence in
the Psychiatric Satellite Unit. However, the point was
relevant. The defendants argued that Sims provoked a fight
knowing that, per standard procedure, he would then be
returned to the more relaxed regime of the Psychiatric
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Satellite Unit. It does not appear that the testimony
focused on Sims’s psychiatric history (if any); the
references in the closing argument were related to the
defendants’ theory of motive. The district court appears to
have weighed the prejudice against probative value, as
required; it was not in error in admitting this evidence.
United States v. Salameh, 152 F.3d 88, 110 (2d. Cir. 1998).
We have considered the remainder of Sims’s arguments
and find them to be without merit. For the foregoing
reasons, the judgment of the district court is hereby
AFFIRMED.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
By:__________________________
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