Ruffin v. City of Boston , 146 F. App'x 501 ( 2005 )


Menu:
  •                 Not For Publication in West's Federal Reporter
    Citation Limited Pursuant to 1st Cir. Loc. R. 32.3
    United States Court of Appeals
    For the First Circuit
    No. 03-2102
    PETER RUFFIN,
    Plaintiff, Appellant,
    v.
    CITY OF BOSTON; DAVID C. WILLIAMS; JAMES GRIFFIN; PAUL EVANS;
    ANN MARIE DOHERTY; and SEVERAL UNKNOWN CITY OF BOSTON POLICE
    OFFICERS,
    Defendants, Appellees.
    APPEAL FROM THE UNITED STATES DISTRICT COURT
    FOR THE DISTRICT OF MASSACHUSETTS
    [Hon. Edward F. Harrington, Senior U.S. District Judge]
    Before
    Boudin, Chief Judge,
    Lynch and Lipez, Circuit Judges.
    Stephen A. Roach, with whom Roach & Wise, LLP was on brief,
    for appellant.
    Eve A. Piemonte Stacey, Assistant Corporation Counsel, City of
    Boston Law Department, with whom Merita A. Hopkins, Corporation
    Counsel, was on brief, for appellees City of Boston, James Griffin,
    Paul Evans, Ann Marie Doherty, and Several Unknown City of Boston
    Police Officers.
    Scott P. Lopez, Special Assistant Corporation Counsel, with
    whom Merita A. Hopkins, Corporation Counsel, was on brief, for
    appellee David C. Williams.
    September 2, 2005
    LIPEZ,    Circuit      Judge.     This    appeal    stems     from     an
    excessive force claim against several Boston police officers.
    Plaintiff-appellant Peter Ruffin, who suffered injuries during an
    altercation with police, alleged that the officers had beaten him
    without provocation and then participated in a cover-up designed to
    shift attention away from their conduct and towards some incidental
    property damage Ruffin had inadvertently caused while being beaten.
    The case proceeded to jury trial and the jury found for the
    defendant police officers.            On appeal, Ruffin mainly challenges
    various evidentiary rulings and trial management decisions.                       Many
    of   these   claims    were   not    preserved      below.      Having    carefully
    reviewed the record of the entire trial, and concluding that Ruffin
    received a fair trial, we affirm.
    I.
    A.    Factual Background
    This case turned entirely on a factual dispute about what
    actually happened in the early morning hours of May 5, 1996.                        A
    total of ten witnesses to the altercation (or part of it) testified
    -- five (including Ruffin himself) on behalf of Ruffin and five
    (including     defendants     Williams        and    Griffin)     on     behalf     of
    defendants.      Not    surprisingly,        each   witness's    version     varies
    substantially from that of every other witness, and the truth is
    difficult to determine.          We provide only a brief summary of the
    facts, reciting them in the light most favorable to the jury's
    -2-
    verdict.     United States v. Castellini, 
    392 F.3d 35
    , 39 (1st Cir.
    2004).
    In the early morning hours of May 5, 1996, Ruffin was
    with family and friends at a bar in Dorchester, Massachusetts.
    Over the course of the day, Ruffin had consumed some eight beers in
    eleven hours.     Ruffin's sister, Colleen O'Herlihy, also had been
    drinking.     When she left to drive home, the family was concerned
    that O'Herlihy had imbibed too much to drive safely, and followed
    her to the parking lot.      Ruffin approached her and attempted to
    persuade her not to drive.      O'Herlihy was resistant, and the two
    began arguing in loud voices.    A neighbor viewed the argument from
    a distance and mistakenly believed that Ruffin was attacking
    O'Herlihy.     She called 911 and reported a "man beating a woman."
    Boston police officers Williams and Griffin, defendants-
    appellees, responded to the 911 dispatcher and arrived at the
    parking lot.     They saw Ruffin pinning O'Herlihy to the ground, and
    ordered him to get off her.       As the officers attempted to pull
    Ruffin off O'Herlihy, he yelled profanities and racial slurs.1        A
    struggle ensued as the officers attempted to arrest and handcuff
    Ruffin and he fought them.     During this scuffle, both Ruffin and
    Griffin were injured, Ruffin more severely.      Ruffin's family and
    friends witnessed various portions of this altercation.
    1
    Ruffin is white; Griffin and Williams are black.
    -3-
    One of the officers made an "officer in trouble" radio
    call, and other officers responded shortly.           Ruffin was eventually
    placed into the back of a police cruiser.           He continued struggling
    and kicked out the rear passenger window.           The officers then moved
    him to a windowless wagon for transportation to the police station.
    At the station, Ruffin continued to be combative and uncooperative.
    An emergency medical technician (whose treatment Ruffin refused)
    noted in his log that Ruffin was intoxicated and belligerent.
    B.   Procedural History
    Three years after the incident, Ruffin filed suit against
    named and unknown police officers, the City of Boston, former
    Police   Commissioner    Paul     Evans,   and   Superintendent      Ann   Marie
    Doherty, alleging various federal and state claims. Ruffin alleged
    that Williams had struck him from behind without provocation and
    that the officers had then beaten him severely while he offered no
    resistance.    According to Ruffin, as he was being placed into the
    back of the police cruiser, Williams choked Ruffin and stuck his
    thumb into Ruffin's eye with such force that Ruffin began flailing
    and involuntarily kicked out the window.            Police supervisors then
    used this broken window as a pretext to explain the beating and
    covered up the real nature of the event.
    Ruffin's complaint alleged, inter alia, that defendants
    violated his civil rights by using unreasonable force, failing to
    intervene,    covering   up   a   civil    rights   violation   by    false   or
    -4-
    misleading statements, and conspiring to cover up a civil rights
    violation.   The district court severed the individual liability
    claims against Williams and Griffin from the supervisory claims
    against the other defendants, and the federal claims under 
    42 U.S.C. § 1983
     from the state law claims.
    The   §   1983    claims   against   the    two   named     officers
    proceeded to jury trial.      At the close of the plaintiff's case, the
    court granted the defendants' motion for judgment as a matter of
    law on Ruffin's cover-up and conspiracy to cover-up claims.                 The
    excessive force and failure to intervene claims were submitted to
    the jury, which returned verdicts for the defendants. The district
    court then dismissed Ruffin's remaining federal claims against the
    supervisory defendants and the City, and transferred the state law
    claims to Massachusetts state court.        Ruffin timely appealed.
    II.
    Ruffin raises various claims on appeal, arising from
    pretrial discovery rulings, evidentiary rulings at trial, the
    district   court's   trial    management,   and   its     grant   of    partial
    judgment as a matter of law for defendants.           We address the alleged
    errors approximately in the order in which Ruffin presents them,
    combining two issues that are better treated together.
    A.   Admission of Thomas Finn's Report and Testimony
    While Ruffin was at the police station, Emergency Medical
    Technician Thomas Finn evaluated Ruffin's injuries and offered
    -5-
    medical treatment, which Ruffin refused.             Although by the time of
    trial Finn could no longer recall the events of May 5, 1996, he had
    contemporaneously recorded his observations in a brief patient care
    report.         The report, besides describing Ruffin's injuries, noted
    that       he   had   refused   treatment,   which    contradicted   Ruffin's
    testimony that he had never been offered treatment.              The report
    also noted "obvious ETOH"2 and "belligerent toward authority."
    Before trial, Ruffin moved in limine to exclude Finn's
    testimony and report on the grounds that the evidence was relevant
    only to an earlier claim of failure to provide medical assistance,
    which Ruffin had voluntarily dismissed.              In a separate document,
    Ruffin objected to the notation "belligerent towards authority."
    At trial, the defense sought to put Finn on the stand and to
    introduce the report into evidence.          Over Ruffin's objection, the
    court permitted Finn to testify based on the report (since he had
    no independent recollection) and permitted the defense to publish
    the report to the jury.
    On appeal, Ruffin argues that Finn's report and testimony
    based upon that report were inadmissible hearsay.                    Appellees
    respond that the report was admissible under various hearsay
    exceptions.        See Fed. R. Evid. 803(1) (present sense impression),
    803(5) (past recollection recorded), 803(6) (business record),
    2
    "ETOH" is an abbreviation for ethyl alcohol. As Finn later
    explained, the phrase "obvious ETOH" referred to his impression
    that Ruffin was intoxicated.
    -6-
    803(8)   (public   record).    Appellees   further    argue   that   any
    statements by Ruffin incorporated into the report (and hence double
    hearsay) are admissible under other rules.       See Fed. R. Evid.
    613(b) (extrinsic evidence of prior inconsistent statement for
    impeachment), 801(d)(2)(A) (admission by party opponent), 803(2)
    (excited utterance),     803(3) (existing state of mind), 803(4)
    (statements for purpose of medical diagnosis).       Ruffin also argues
    that Finn was biased because he was a member of the Boston Police
    Patrolman's Association and, by virtue of his position, sympathetic
    to police officers.
    We review the district court's admission of disputed
    evidence for abuse of discretion.      United States v. Flemmi, 
    402 F.3d 79
    , 86 (1st Cir. 2005).   Finn's own observations contained in
    the patient care report were admissible as, at least, business
    records under Rule 803(6).    Double hearsay statements by Ruffin in
    that report were admissible as statements of a party-opponent under
    Rule 801(d)(2)(A).    Finally, Ruffin was able to develop in cross-
    examination his theory that Finn was biased towards police officers
    and had a motive to falsify his report to buttress the officers'
    account. Ultimately, the admissibility of the report and testimony
    were quintessential discretionary calls for the trial court, and
    the court did not abuse its discretion in admitting that evidence.
    -7-
    B.   Inquiry into Williams's Job Status, Reputation, and/or Prior
    Bad Acts
    1.   The Excluded Testimony
    Before the complaint in this case was filed, Williams was
    terminated from the Boston police for an unrelated incident of
    alleged excessive force.3   He has not been a member of any police
    force since then.
    Not surprisingly, Ruffin wished to explore Williams's
    reputation, employment history, and prior excessive force history,
    and Williams wished to avoid it.   The issue first surfaced during
    direct examination of Ruffin himself.      Ruffin's counsel asked
    whether, before May 5, 1996, Ruffin had ever seen Williams. Ruffin
    started to answer that he had once seen Williams (presumably off-
    duty) in a business establishment in Dorchester.        Williams's
    counsel objected, and it emerged that Ruffin would testify that
    Williams was wearing a shirt (presumably not official department
    issue) that said words to the effect of "Boston Police, Toughest
    Gang There Is." Williams's counsel again objected on the ground of
    relevance, and the court sustained the objection.    The following
    exchange then occurred:
    3
    In 1998, a federal civil jury found Williams liable in that
    incident for, inter alia, excessive force, assault and battery,
    deliberate indifference to excessive force, and deliberate
    indifference to medical needs. See Cox v. City of Boston, No. 95-
    12729 (D. Mass. filed Dec. 18, 1995), docket entry 420 (Dec. 22,
    1998) (jury verdict).     We may take judicial notice of court
    proceedings. Maher v. Hyde, 
    272 F.3d 83
    , 86 n.3 (1st Cir. 2001).
    -8-
    MR. ROACH [Ruffin's counsel]: I'd like just to
    say one thing for the record, Your Honor. I'm
    sorry to keep you.     I'm going to put into
    evidence later on in this case, I just want
    you to know, there are -- people around
    Dorchester in the community, specifically his
    mother, other people knew Dave Williams and he
    had a reputation. I am going to try to put
    that into evidence at some point.
    MR.    LOPEZ     [Williams's    counsel]:    His
    reputation?
    MR. ROACH: Under Rule 404.
    THE COURT: I am not going to let it in because
    the issue already is narrow:    Did they beat
    him or didn't they.        His reputation is
    irrelevant because there is no extortion,
    there is no fear --
    MR. ROACH: Well, I think the defense, Your
    Honor, is going to say --
    THE COURT: Well, let's see what the defense
    does.
    MR. ROACH: Can I make an offer of proof on the
    record on this?
    THE COURT: Well, you may, but not at this
    time.
    MR. ROACH: Okay.
    The    issue   later   arose   before   Williams's   direct
    examination.    Williams's counsel requested a sidebar to clarify
    whether Ruffin would be able to cross-examine Williams regarding
    his current job status and to object to such cross-examination as
    irrelevant.    Ruffin's counsel advised the court that he wished to
    "ask him if he's still employed as a police officer, yes or no,
    sir, what do you do.     That is it, I'm not going to ask him about
    -9-
    why or anything."         The court described that as "a dangerous
    question," and inquired whether "the purpose of [your] asking it is
    to leave the inference . . . that he was kicked out for good cause,
    [because] it's prejudicial if it didn't grow out of this case."
    Ruffin's   counsel   confirmed      that   Williams's   termination    was
    unrelated to this case, and the court sustained the objection.
    2.    Analysis
    On   appeal,    Ruffin   challenges   the    district   court's
    exclusion of inquiry into Williams's job status, disciplinary
    history, and reputation.4
    First, he challenges the court's ruling preventing him
    from inquiring into Williams's present job status.         He notes that
    under Fed. R. Evid. 608(b), "[s]pecific instances of the conduct of
    a witness, for the purpose of attacking or supporting the witness'
    character for truthfulness . . . . may, . . . in the discretion of
    the court, if probative of truthfulness or untruthfulness, be
    inquired into on cross-examination of the witness . . . concerning
    the witness' character for truthfulness or untruthfulness."           Fed.
    R. Evid. 608(b).
    Ruffin's argument fails for two independent reasons.
    First, he did not argue below that character for truthfulness was
    a basis for the inquiry, but rather tacitly confirmed the district
    4
    He does not challenge the exclusion of the testimony about
    Williams's shirt.
    -10-
    court's suspicion that the purpose of the question was to create an
    inference of propensity to engage in misconduct. Consequently, any
    argument     that    the    evidence   was    admissible    under    Rule   608   is
    forfeited.     See Tate v. Robbins & Myers, Inc., 
    790 F.2d 10
    , 12 (1st
    Cir. 1986) ("[I]f evidence is excluded because it is inadmissible
    for its only articulated purpose, the proponent of the evidence
    cannot challenge the ruling on appeal on the ground that the
    evidence 'could have been rightly admitted for another purpose.'")
    (citation     omitted).         Second,      the   district   court      "has    wide
    discretion under Rule 608(b)," Navarro de Cosme v. Hospital Pavia,
    
    922 F.2d 926
    ,    933    (1st   Cir.     1991),   as   well     as   Rules    402
    (inadmissibility       of     irrelevant     evidence),     403   (exclusion      of
    relevant evidence on grounds of prejudice), and 404(b) (exclusion
    of evidence of other acts to demonstrate propensity to act in a
    certain fashion). The court was entitled to find that the question
    ran afoul of any or all of the above rules.                Put another way, the
    inference that Ruffin wished to raise -- that because Williams had
    been terminated for an unrelated incident, he was probably at fault
    in this incident too -- is precisely the type of inference that the
    Federal Rules of Evidence seek to prevent a party from raising.
    While the specific question that Ruffin wanted to ask was not so
    blatantly prejudicial that the district court was required to
    exclude it, the court certainly was not required to permit it
    either, and did not abuse its discretion in excluding it.
    -11-
    Second, Ruffin challenges the district court's exclusion
    of evidence concerning Williams's reputation or prior bad acts.
    Such evidence can, in appropriate circumstances, be admissible for
    limited purposes.   See generally Fed. R. Evid. 404(b) (evidence of
    other acts may be admissible to show, e.g., "absence of mistake or
    accident"), 608(a) (impeachment by reputation for truthfulness),
    608(b) (impeachment by specific instances of conduct).       On the
    other hand, that type of evidence also carries the risks of unfair
    prejudice, see Fed. R. Evid. 403, or being misused to demonstrate
    propensity to act in a certain way, see Fed. R. Evid. 404(b).    The
    balance is delicate, and courts have occasionally held that it was
    erroneous to exclude such evidence.     See, e.g., Carson v. Polley,
    
    689 F.2d 562
    , 571-572 (5th Cir. 1982) (reversing district court's
    exclusion of performance evaluations of two deputy sheriffs stating
    that they needed to control their tempers, holding that one report
    was admissible under Rule 404(b) to show intent to harm plaintiff
    inmate, and other was admissible under Rule 608(b)).
    We realize that evidence of other instances in which
    Williams allegedly used excessive force might have been helpful to
    Ruffin in swaying the jury.   However, there was also a risk that,
    despite any limiting instructions, the jury would use the evidence
    not just to evaluate Williams's truthfulness, but also to establish
    a propensity for such conduct.   The district court was in the best
    position to determine whether the risk of unfair prejudice would
    -12-
    outweigh the legitimate uses of the evidence, and we are reluctant
    to disturb its ruling given the wide latitude we accord to trial
    judges in this area.       We do not find an abuse of discretion.
    Other    rulings      to   which   Ruffin     objects    are   easily
    resolved. First, he argues that permitting the defense to refer to
    Williams   as    "Officer"      Williams,     in   the   present    tense,    was
    prejudicial to Ruffin because it created the false impression that
    Williams   was     still   a    police   officer.        Since     he   did   not
    contemporaneously object, we review only for plain error, Fed. R.
    Evid. 103(d); Bandera v. City of Quincy, 
    344 F.3d 47
    , 55 (1st Cir.
    2003), and find none.          Second, he argues that the district court
    erroneously excluded evidence of Williams's reputation.5                      But,
    despite the court's statement that counsel could make an offer of
    proof on the record at some later point, counsel never attempted to
    introduce evidence of Williams's reputation.                Since he did not
    5
    Ruffin never explained, either to the district court or in
    his appellate brief, whether he meant to offer evidence of
    Williams's reputation for truthfulness or his reputation for
    violence. However, at trial Ruffin's counsel explained that the
    basis for admitting reputation evidence was Rule 404. The only
    basis under Rule 404 for admitting evidence of a civil defendant's
    reputation is Rule 404(a)(3), which permits, inter alia, evidence
    of a witness's character for truthfulness pursuant to Rule 608(a).
    Consequently, we assume, for purposes of this appeal, that Ruffin
    intended to introduce evidence of Williams's reputation for
    truthfulness. Evidence of a reputation for violence would probably
    not have been admissible under any rule; reputation evidence "may
    refer only to character for truthfulness or untruthfulness." Fed.
    R. Evid. 608(a)(1) (emphasis added).
    -13-
    attempt to offer such evidence, he cannot complain on appeal that
    it was not permitted.     See Fed. R. Evid. 103(a)(2).6
    C.    Deprivation of a Fair Trial
    Ruffin asserts that various comments made by the district
    court during the course of the trial, concerning the credibility of
    Ruffin, one of his witnesses, his counsel, and an ultimate issue in
    the case, denied Ruffin a fair trial.       Our standard of review for
    such charges reflects the realities of trial management:
    Bias and improper conduct by a trial judge may be grounds
    for a new trial if a party is so seriously prejudiced as
    to be deprived of a fair trial. However, mere active
    participation by the judge does not create prejudice nor
    deprive the party of a fair trial. On appeal, we must
    consider isolated incidents in light of the entire
    transcript so as to guard against magnification on appeal
    of instances which were of little importance in their
    setting.
    Deary v. City of Gloucester, 
    9 F.3d 191
    , 194 (1st Cir. 1993)
    (internal quotation marks and citations omitted).
    Ruffin first claims that the district court interrupted
    his   cross-examination    of   a   witness,   Sergeant   Terestre,   and
    6
    Ruffin suggests that he did not take up the court's
    invitation to make an offer of proof because of the court's later
    exclusion of evidence concerning Williams's job status. But if
    Ruffin genuinely intended to offer evidence of Williams's
    reputation for truthfulness, as opposed to a reputation for
    violence, see supra note 5, then the exclusion of evidence
    regarding job status had no bearing on potential reputation
    evidence regarding truthfulness. Even in cases where "the court
    telegraphed what its ruling was likely to be if . . . counsel
    opened the door" by offering disputed evidence, we treat the matter
    as forfeited if "the latter never knocked."       United States v.
    Griffin, 
    818 F.2d 97
    , 103 (1st Cir. 1987).               Under the
    circumstances, we see no reason to excuse the forfeiture.
    -14-
    commented on the case in a manner that would lead the jury to
    believe that the court adopted the defense version of precisely
    what happened when Ruffin kicked out the window of the cruiser.
    Sergeant Terestre, who was the supervisor of Williams and Griffin,
    testified that he arrived in response to the "officer in trouble"
    call at approximately the time that the cruiser window was kicked
    out.     Part of Ruffin's theory of the case was that Sergeant
    Terestre had actually arrived earlier and witnessed the initial
    confrontation, but had attempted to cover up the beating and his
    failure to stop it.     On cross-examination, Ruffin's counsel tried
    to examine Terestre about his concern for the cruiser window to
    show that it was just a ruse to divert attention from the beating.
    While it is not clear from the printed transcript, it appears that
    Ruffin's counsel used an unduly sarcastic tone of voice in this
    examination, and the court admonished him for it.              The court also
    repeatedly urged Ruffin's counsel to "move on."
    Our   review    of   the     transcript    indicates       that   the
    challenged statements, taken in context, were defensible efforts to
    move the cross-examination along as Ruffin's counsel attempted
    without success to induce Terestre to admit that he had witnessed
    a confrontation that Terestre insisted he had not witnessed.                   We
    accord   considerable      deference    to    the   district   court    in    such
    matters:
    The trial judge has discretion to maintain the pace of
    trial, and indeed has the responsibility to oversee the
    -15-
    conduct of a trial so that it moves expeditiously.
    Therefore,   encouraging   counsel   to  move   forward,
    forbidding counsel from eliciting duplicative testimony,
    or halting what the court perceived to be a waste of
    time, was firmly within the discretion of the trial
    judge.
    
    Id. at 194-95
    .
    Ruffin next complains about the court's sharp admonitions
    to witness Mary Flynn, who witnessed most of the altercation. Even
    from the printed transcript, it is evident that Flynn was a feisty,
    spirited witness with a penchant for stating her thoughts when the
    question called for her observations or, indeed, when there was no
    question before her.   The court's responses escalated each time
    Flynn injected her opinions where none were requested.    The first
    time she did this, the court simply instructed her to answer the
    questions asked; the second time, it warned Ruffin's counsel to
    control her; the third time, it warned Ruffin's counsel at sidebar
    that if he could not control the witness, the court would declare
    a mistrial; finally, having exhausted all of these measures, the
    court admonished Flynn in the presence of the jury.    In reviewing
    this type of trial management, "the widest possible latitude is
    given to the judge on the scene."        Rodriguez v. Banco Central
    Corp., 
    990 F.2d 7
    , 12 (1st Cir. 1993).      The court's handling of
    Flynn fell well within that latitude.7
    7
    We also note that the court admonished Griffin when he
    strayed from the question, stating at one point, "No, here is the
    question, can you answer the question?         I don't want an
    explanation."
    -16-
    Finally, Ruffin complains that the court's admonishment
    of counsel was unbalanced because the court, in sustaining Ruffin's
    objections, did not sufficiently chastise defense counsel.     Our
    review of the transcript reveals that the court's comments to
    counsel for all parties were within its discretion given the nature
    of the events leading to the remark, and the court displayed no
    improper bias against Ruffin or his counsel.
    D.   Exclusion of Boston Police Department Rule 327
    As part of his theory that Sergeant Terestre used the
    breaking of the cruiser window as a convenient distraction to
    divert attention from a police beating, Ruffin's counsel pressed
    the point that the initial 911 call had been for domestic violence
    and the police had never actually investigated domestic violence.
    Ruffin sought to introduce Boston Police Department Rule 327
    ("Protection of Abused Persons"), which specifies procedures for
    responding to domestic violence calls.   Ruffin's theory was that
    Terestre had decided that it would be simpler to focus on a broken
    cruiser window, rather than the comparatively daunting work of
    following through with Rule 327's requirements for investigating a
    domestic violence incident, and furthermore that the contents of a
    properly investigated domestic violence report would show that
    there had been no domestic violence incident, thus calling into
    question the defendants' version of the altercation.
    -17-
    The court permitted Ruffin to cross-examine Terestre
    about Rule 327 in general terms. However, when Ruffin attempted to
    mark it as an exhibit in anticipation of introducing it into
    evidence, defense counsel objected and the court sustained the
    objection.      Neither the defense objection nor the court's ruling
    explicitly stated their grounds, but from context we can discern
    three reasons for excluding Rule 327, any of which would suffice.
    The most obvious rationale for excluding Rule 327 is that
    it was irrelevant.      See Fed. R. Evid. 401.    The issues remaining in
    the case at that point were whether Williams and Griffin had used
    excessive force or failed to intervene when another officer used
    excessive force.        The contents of a police department policy on
    responding to domestic violence incidents were not relevant to this
    determination.8       Alternatively, if the purpose of introducing Rule
    327 was to attack Sergeant Terestre's credibility by suggesting
    that he had fabricated a story to avoid paperwork, the district
    court     had   the   discretion   to   exclude   the   evidence   because
    "[s]pecific instances of the conduct of a witness, for the purpose
    of attacking or supporting the witness' character for truthfulness
    . . . may not be proved by extrinsic evidence."            Fed. R. Evid.
    608(b).    Finally, even if the rule arguably had some relevance, it
    8
    If the cover-up or conspiracy to cover-up claims had survived
    to this point, the policy might have been relevant.         But the
    district court had already properly granted judgment as a matter of
    law on those claims. See infra Part III.F.
    -18-
    was at best peripheral, and the district court had the discretion
    to exclude it because "its probative value [was] substantially
    outweighed by the danger of . . . confusion of the issues, or
    misleading the jury, or by considerations of undue delay, waste of
    time, or needless presentation of cumulative evidence."    Fed. R.
    Evid. 403.    In any event, the district court did not abuse its
    discretion in excluding Rule 327.
    E.   Denial of Motion for Telephonic Deposition
    One of Ruffin's listed witnesses was Margaret Finnerty,
    an Irish citizen and friend of Ruffin's aunt who had witnessed the
    incident.    Finnerty had moved back to Ireland soon after the 1996
    incident, but Ruffin had believed that she would fly to Boston to
    testify in his trial, which was scheduled for June 30, 2003.
    Shortly before trial, Ruffin learned that she would not, in fact,
    be able to make the trip.       On June 5, 2003, he moved for a
    telephonic deposition. Defendants opposed the motion, arguing that
    it was untimely, procedurally defective under Fed. R. Civ. P. 28(b)
    (governing foreign depositions), inappropriate for the type of
    facts-on-the-ground testimony Finnerty would offer, and unjustified
    because her testimony would be cumulative with that of Ruffin's
    other witnesses.     On June 17, 2003, the district court denied
    Ruffin's request, noting that Ruffin's motion "comes on the eve of
    -19-
    a June 30, 2003 trial and approximately nine months after the
    September, 2002 close of discovery in this case."9
    We review the district court's discovery rulings for
    abuse of discretion, Bogosian v. Woloohojian Realty Corp., 
    323 F.3d 55
    , 63 (1st Cir. 2003), and find no error.          The combination of (1)
    the lateness of the request after the discovery deadline, (2) the
    proximity of the request to the trial date, (3) the lack of
    justification for not making the request earlier, (4) the potential
    procedural complications of a foreign deposition under Fed. R. Civ.
    P. 28(b), (5) Ruffin's apparent failure to recognize that such
    issues even existed, and (6) the fact that Finnerty's testimony,
    while likely helpful to Ruffin, was not indispensable, provided an
    adequate   basis   for   the   court,   in   the   exercise   of   its   broad
    discovery management discretion, to deny the request.
    F.   Dismissal of Cover-Up and Conspiracy Claims
    At the close of Ruffin's case in chief, defendants moved
    for judgment as a matter of law under Fed. R. Civ. P. 50(a).              The
    district court granted that motion in part and denied it in part,
    finding that Ruffin had advanced a sufficient evidentiary basis for
    his excessive force and failure to intervene claims, but not for
    his cover-up and conspiracy to cover-up claims.          Ruffin challenges
    9
    Ruffin argues that some additional discovery was permitted
    after the formal deadline. However, that fact did not deprive the
    court of the ability to enforce that deadline as to other types of
    discovery.
    -20-
    this ruling on appeal.        We review the district court's grant of
    judgment as a matter of law de novo.           Guilloty Perez v. Pierluisi,
    
    339 F.3d 43
    , 50 (1st Cir. 2003).
    Our review indicates that the district court was exactly
    right in granting the motion on the cover-up and conspiracy claims
    but   not   the   excessive   force   or     failure   to    intervene   claims.
    Ruffin's witnesses testified almost exclusively as to the events of
    the arrest and altercation itself.           Not one scintilla of evidence
    regarding a cover-up or conspiracy was adduced.               On appeal, Ruffin
    does not attempt to refute this point.                 Instead, he discusses
    largely irrelevant procedural circumstances.                We find no error in
    the court's ruling.
    Affirmed.
    -21-