USCA1 Opinion

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT
____________________
No. 92-1703
WALTER DEARY, ET AL.,
Plaintiffs, Appellees,
v.
CITY OF GLOUCESTER, ET AL.,
Defendants, Appellees,
_________
JOHN BICHAO,
Defendant, Appellant.
_____________________
No. 92-1777
WALTER DEARY, ET AL.,
Plaintiffs, Appellants,
v.
CITY OF GLOUCESTER, ET AL.,
Defendants, Appellees.
____________________
APPEALS FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Joseph L. Tauro, U.S. District Judge]
___________________
____________________
Before
Boudin and Stahl, Circuit Judges,
______________
and Fuste,* District Judge.
______________
____________________

Leonard H. Kesten with whom Thomas M. Elcock and Morris

___________________
__________________
______
Mahoney & Miller were on brief for John Bichao, City of Gloucest
_________________
David A. Reardon, Howard Maki, John Beaudette, Harold Reardon, Ja
Hubbard and Chief Earland Whortley.
Edmund M. Pitts with whom Edmund R. Pitts and Pitts & Pitts w
_______________
_______________
_____________
on brief for Walter Deary.
____________________
November 17, 1993
____________________
_____________________
*Of the District of Puerto Rico, sitting by designation.

FUSTE, District Judge.

FUSTE, District Judge.
______________
police

misconduct

Massachusetts law.

action

This

brought under

appeal

42

arises

U.S.C.

from

1983 and

Defendant John Bichao appeals contending that

(1) bias on the part of the trial

judge denied him a fair trial;

(2) evidence regarding a prior disciplinary action against one of

the witnesses was
were

incorrectly admitted; and (3)

attorneys' fees

erroneously granted to plaintiffs' attorneys.

all grounds.
I.
I.
Background
Background

We affirm on

__________
Walter
against

Deary

and

his

brother

six Gloucester police officers,

Police, and
occurred

the City of

on

March 29,

1986.1

The

a cover-up

case,

the

regarding the

court

officers, except
was an allegation
in

the

head.

directed

Officer Bichao.2

jury

awarded

that

assaulted them and

for

After
each

The main

that Officer Bichao kicked

The

suit

incident which

Dearys alleged

incident.
verdicts

brought

the Mayor, the Chief of

Gloucester, based on an

defendant police officers physically

in

Robert

Walter

the

engaged

the plaintiffs'
of

the

issue in

police

the case

Walter Deary twice

Deary

$25,000

in

____________________

1The claims against the city, the Mayor, and the Chief of
Police were bifurcated from
those against the
individual
officers.

2Plaintiffs filed a cross-appeal requesting that if a new

trial were granted to Defendant Bichao, then this court should
also reverse the directed verdicts granted to defendants Earland
Whortley, David Reardon, Howard Maki, John Beaudette, Harold
Reardon, and James Hubbard, the other Gloucester police officers.
Because we affirm, we do not reach plaintiffs' alternative
request.
-22

compensatory damages and

$75,000 in punitive damages,

and found

for Bichao

on the

claims brought

by Robert

Deary.

The court

granted $112,295 in attorneys' fees and $8,977.50 in costs to the

plaintiffs' attorneys under 42 U.S.C.

1988.

II.
II.
Discussion
Discussion
__________
A.
A.

Allegations of Bias of Trial Judge

Allegations of Bias of Trial Judge
__________________________________
Officer

trial judge

Bichao requests a new trial, alleging that the

was so biased

the defendant of

towards the plaintiffs as

a fair trial.

Bichao

to deprive

lists numerous incidents

during the trial which he contends were indicative of the bias of

the judge.

These events may be

claims that the

divided into three types:

judge made comments indicating

that defendant's

counsel was

proceeding too slowly;

(2) claims that

questioning

of witnesses reflected

bias and partiality

plaintiffs;

(3)

allegations

regarding

defendant's counsel and the judge,

(1)

the judge's

disputes

for the

between

which Bichao claims created a

prejudicial effect against the defendant.

Bias
grounds for a
to be deprived
Medicine,
________

and improper

by a

trial

judge may

be

new trial if a party is so seriously prejudiced as

of a

837 F.2d

fair trial.
17, 21-22

active participation by the

deprive

conduct

the party

of a

Aggarwal v. Ponce School of

_____________________________

(1st Cir.

1988).

However, mere

judge does not create prejudice

fair trial.

Id.
___

On appeal,

nor

we must

"consider isolated incidents in light of the entire transcript so

as to 'guard

against magnification on appeal

of instances which

-33

were of

little importance

in their setting'."

Aggarwal
________

at 22

(quoting Glasser v. United States, 315 U.S. 60 (1984)).

________________________
Bichao cites
Judge

several instances during the

Tauro encouraged defense

questioning, or

was

counsel to

unsatisfied with

trial where

advance the

pace of

counsel's utilization

time.

The trial

trial,

and indeed "has the responsibility to oversee the conduct

of

a trial so

judge has discretion

to maintain the

of

that it moves expeditiously".

Buren Community Hosp.,

______________________

969

F.2d

1280,

pace of

Desjardins v. Van
_________________

1281 (1st

Cir.

1992)

(noting that requests by the judge that counsel not be repetitive

are

"routine").

forbidding
halting

Therefore, encouraging counsel to move forward,

counsel

what the

from

eliciting

court perceived

duplicative
to be

a waste

testimony,

or

of time,

was

firmly within the discretion of the trial judge.

Next,

Bichao alleges

that the

trial

judge exhibited

bias

towards the

defense

plaintiffs

counsel's

witnesses,

direct

including

by
and

Bichao

interjecting questions
cross-examination

himself.

The

during

of

court

several
has

the

prerogative to interrogate witnesses, and the duty to do so where

necessary to

clarify testimony, but

air of impartiality.
400

United States v. Paz Uribe,

__________________________

(1st Cir. 1989), cert. denied,

_____ ______

judges are

the judge must

maintain an

891 F.2d 396,

495 U.S. 951 (1990).

constantly making judgments

"Trial

about . . . the

need to

clarify witness answers, and similar matters of trial management.

In this realm, the widest possible latitude is given to the judge

-44

on the scene."

Rodr guez v. Banco Cent. Corp., 990 F.2d

_______________________________

7, 13

(1st Cir. 1993).

Bichao
plaintiff's

argues

medical

that

expert,

the judge's
Dr.

Starr,

questioning
undermined

counsel's credibility, and reflected bias by the judge.

of the transcript reveals

that the judge's questions

of

the

defense

A review

were meant

to

clarify

the

testimony

of

the

examination, Dr. Starr had discussed

the jury

did not have

questions
referred

in order
to,

discussing.

and

to elucidate

which

section

During

cross-

a number of documents which

in front of them.

which

These

witness.

of

The court

asked some

document the

questions

the

report

questions were clearly within

counsel

was

the discretion

of the trial court.

Bichao
its

also contends that the court was overzealous in

questioning of

Officers Maki

and

Beaudette during

direct

examination, and as a result destroyed the credibility of the two

witnesses.

Officer

physical proximity

Maki

was

to Walter

Bichao were administered.

the person
Deary

who

when the

was closest

in

alleged kicks

by

The judge questioned him

in order to

clarify Maki's statement about his lack of memory of the kicking.

This issue

was central

to the

case, and

the judge

within his discretion to ensure that Maki's

Similarly,

the

court's

questioning of

was acting

testimony was clear.

Officer

Beaudette

was

unbiased and aimed at illuminating his testimony.

Bichao

claims that when he was being cross-examined by

plaintiff's counsel,

the judge

made uncivil
-55

remarks and

asked

hostile questions of him.

reveals that
answer

the

questions

the judge

A close examination of the transcript

occasionally instructed

questions which

were

presented to

to elucidate Bichao's testimony.

questions did

not rise

to the level

were made with the purpose

the witness
him,

to

and asked

These directions and

of partiality,

but rather

of obtaining answers to the questions

posed and clarifying the answers given.

Finally,

Bichao identifies

several

exchanges in

transcript which he claims reflect a certain amount of

between the judge

and defense counsel.

Some

the

animosity

of these incidents

occurred outside of the hearing of the jury, where they could not
have influenced the
sidebar

jury decision.

conference during which

However, Bichao

the judge stated

defense counsel's cross-examination

"very devious".

he was able to hear

context

of

intervention.

judge asked the

When

to be

jury whether

conference and one juror stated that

"a little bit".

nine-day

that he found

of the medical expert

At the time, the

they could hear the sidebar

points to a

trial,

the judge

This episode,

does

not

taken in the

warrant

questioned the

appellate

jury about

this

incident, only one of the eight members stated that he could hear
a

little bit

of

the conference.

"devious" comment itself

It

is

unclear whether

was overheard by that one

juror.

the

Even

assuming that the one juror did hear the statement, we find that,
viewing

the

insufficient

trial

transcript

to sustain

as

whole,

a finding of

bias on

the

comment

the part

is

of the

trial judge, or prejudicial impact on the trial.

T r i a l

-66

judges

need to maintain strict control over judicial proceedings

and as

a result it would

be unrealistic to suggest

should always be models of harmony.

trial

judge

of unwarranted

towards counsel ought to

and

counsel

does not

that trials

Although any display

irritation or

displeasure directed

be avoided, friction between the

constitute

pervasive bias.

Hamm v. Board of Regents, 708

_________________________

F.2d 647,

court

See Arthur
___ ______

Pierson & Co. v. Provimi Veal Corp., 887 F.2d 837, 839
___________________________________
1989);

by the

(7th Cir.

650 (11th Cir.

1983).
Bichao contends that the judge
general

failed to give the jury

or specific curative instructions regarding any of these

incidents.

But defendant failed to request any specific curative

instructions

during the course

of the trial.

Furthermore, the

jury charge instructed the jurors that they were the "sole judges
of the weight

and effect of

evidence in the case

all of the

evidence" and that

did not include statements of the

the

judge or

counsel.

The defendant was not prejudiced by any conduct of

the

trial judge, and a new trial is not warranted.

B.
B.

Evidence of Disciplinary Action

Evidence of Disciplinary Action
_______________________________
During the

was the

cross-examination of

commander on duty on

the plaintiffs'

the night of the

never

known Maki

Reardon was

who

alleged assault,

attorney questioned Reardon about the reputation

for truthfulness of Officer Maki.

had

Officer Reardon,

to be

aware of an

When Reardon responded that he

untruthful, counsel

incident in which Maki

after he was untruthful when

asked whether

was disciplined

filing an overtime report.

Reardon

-77

denied knowledge of

the event.

Officer

to

Maki

questioned him
happened, and

back

the

about the

stand

incident.

documents regarding

into evidence.

Maki

for

by

defense

allowing evidence

of this

counsel then called

rebuttal testimony

Maki

admitted that

the event

explained his version

cross-examination

reasons.

Plaintiffs'

counsel.

were then
of the

Bichao

event was erroneous

and

it had

allowed

incident on

contends that

for a

number of

First, Bichao argues

Reardon about his
because

Under

character of
character
limitation
witness.3

opinion of Maki's reputation

Maki's character

defense.

that it was improper

Fed.

R.

witness is

has been

had not

been

Evid. 608,

only admissible

attacked,

but

for truthfulness

put into

evidence

there

to question

of

issue by

the truthful

after the
is

no

the

witness'

corresponding

on introducing evidence about the untruthfulness of a

Officer

Maki was the officer who

was located closest

____________________
3Federal Rule of Evidence 608 provides:
(a) The credibility of a witness may be
attacked or supported by evidence in the form
of opinion or reputation, but subject to
these limitations: (1) the evidence may refer
only
to character
for truthfulness
or
untruthfulness, and (2) evidence of truthful
character is
admissible only
after the
character of the witness for truthfulness has
been attacked
by opinion
or reputation
evidence or otherwise.
(b) Specific instances of the conduct of a
witness, for the purpose of attacking or
supporting the witness' credibility, other
than conviction of crime as provided in rule
609, may not be proved by extrinsic evidence.
They may, however, in the discretion of the
-88

to Officer Bichao
took place.
trial.

when the alleged kicks to

His testimony about

the arrest was crucial

By testifying to the events

put his

credibility

Walter Deary's head

to the

of the night in question, he

into issue.

Questions

to his

supervisor

regarding the supervisor's opinion of Officer Maki's truthfulness

were clearly proper.
Bichao
too

remote

in

suspension.
another

also contends
time to

account

R.

Evid.

608(b)

allows

inquiry

about

bad act
when

is a

Although the time which has elapsed since the

consideration for

determining

evidence, close proximity

Evid. 608(b).
1978).

regarding the

instances of conduct concerning the truthfulness of the

principal witness.
prior

cross-examination

event was

When a witness has testified as to the character of

witness, Fed.

specific

allow

that the disciplinary

The

the trial.

whether

to

the judge
admit

to take
such

in time is not required

into

character

under Fed. R.

United States v. McClintic, 570 F.2d 685 (8th Cir.

__________________________
incident involving Maki occurred ten
The discipline

resulted from the fact

Maki was untruthful in filing an overtime report.

years prior to

that Officer

It was within

the discretion of the trial judge to allow plaintiffs' counsel to

____________________
court, if
probative of
truthfulness or
untruthfulness, be inquired into on crossexamination of the witness (1) concerning the
witness'
character
for
truthfulness or
untruthfulness,
or
(2)
concerning
the
character for truthfulness or untruthfulness
of another witness as to which character the

witness being cross-examined has testified.

-99

question Officer Reardon about his knowledge of this event, since

the incident was relevant to Officer Maki's credibility.
Next,
testimony of
error

Bichao argues that the admission of the rebuttal

Maki and the

because

each

controvert Officer
disciplinary
While

constituted

extrinsic

Reardon's denial of

incident, in

we agree

documents

documents regarding the event

that

used

knowledge regarding

violation of

the

evidence

was an

Fed.

R. Evid.

rebuttal testimony

of

to

the

608(b).

Maki and

the

should not have been admitted, we find the error to be

harmless for the reasons enumerated below.

Fed.

R.

Evid.

extrinsic evidence to

608

prohibits

the

introduction

of

prove specific instances of the conduct of

a witness for the purpose of attacking or supporting the witness'

credibility.

Therefore, although

a witness

about particular events, once the witness

knowledge of

the occurrence

483,

488 (1st

Cir.

on cross-examination,

1989).

The

questioned

has denied or admitted

must accept the answer given by the witness.

F.2d

can be

the examiner

U.S. v. Tejada, 886

______________

purpose of

the

ban on

extrinsic evidence is "to avoid holding mini-trials on irrelevant

or collateral matters".

United States v. Beauchamp, 986 F.2d 1,

___________________________

3 n.1 (1st Cir. 1993).

Here, plaintiffs' recall of Officer Maki

on rebuttal was an unnecessary foray, resulting in a waste of the

court's time.

Officer Reardon stated on

he had no knowledge of the

Maki.

disciplinary action involving Officer

Questioning about the

that juncture.

cross-examination that

event should have been

stopped at

Under Fed. R. Evid. 608(b), plaintiffs could have

-1010

questioned
original

Maki

would not

the

regarding
evidence
been

therefore the

rebuttal
the

of the suspension.

However,

during his

Maki's character

such questioning

time expended in recalling

original

questioning

disciplinary

suspension

was probative of

or untruthfulness.

have involved the

stand, and

render

the disciplinary

testimony, since it

for truthfulness

the

about

event

Maki to

admissibility does

acceptable.
provided

As such, they

not

The

documents

further

extrinsic

would not even have

admissible during Maki's original testimony, and should not

have been allowed during rebuttal.

Although Maki's

rebuttal testimony

and the

documents

regarding the suspension should not have been admitted under Fed.
R.

Evid.

608,

we

find

determining whether

that the

or not the

error

was

harmless.

error was harmless,

"In

a reviewing

court must assess the record as a whole to determine the probable

impact of the improper evidence upon the
Mateos-Sanchez, 864 F.2d 232, 237
______________
States v. Currier,
___________________
determining

whether

contravention of

821 F.2d

United States v.
________________

(1st Cir. 1988) (citing United

______

52,

evidence

Fed. R. Evid.

jury.

56

(1st

Cir.

erroneously

1987).

In

admitted

in

608 was harmful, this

court has

examined such factors as whether the admission allowed completely

new evidence before the jury,

and whether the disputed

evidence

was likely to arouse undue passion or prejudice to the jury.

In

this case, during

the cross-examination of

plaintiffs' counsel raised

that Officer Maki

Officer Reardon,

the possibility in front of

may have been involved

-1111

Id.
__

in an incident

the jury

on the

police

force

where

his

truthfulness

was

questioned.

The

information about the event, while probative of untruthfulness of

one of

the witnesses, was not likely

against

the defense.

the disciplinary

Furthermore, but for

an

counsel's omission,

action would have been brought out when Officer

Maki was initially testifying in

Maki had

to unduly inflame the jury

opportunity

to

examination during rebuttal.

the case.

explain
The

the

In addition, Officer
incident

on

cross-

error is insufficient to merit

reversal.
C.
C.

Attorneys' fees
Attorneys' fees
_______________
Finally, appellant

fees to

challenges the award

plaintiffs' attorneys

granted under

Bichao claims that the records

of attorneys'

42 U.S.C.

1988.

submitted by the lawyers were not

contemporaneous and that the billing rate requested was inflated,

and seeks a reduction
only

one of

the

District courts
civil rights
examination of

of the fee award to reflect

plaintiffs

have discretion

cases, but
the hours

Inc. v. Larkin, 749 F.2d

_______________
appellate

prevailed on

must carry out

and rates

second guessing."

by a

more than

precise

costs in

Grendel's Den,
______________

Normally,

rationale and

and . . . avoid

extensive

Id.
__

In order to recover fees, attorneys

and

claims.

a conclusory

Cir. 1984).

to any thoughtful

trial court

of the

fees and

requested.

945, 950 (1st

courts should "defer

decision developed

in awarding

one

the fact that

accounting

of

their

time,

must submit a full

including

specific

information about number

of hours, dates, and the

nature of the

-1212

work performed.
560 (1st

Calhoun v. Acme Cleveland Corp.,

_______________________________
documentation is

not submitted,

fees should be reduced or even denied altogether.

Grendel's Den,
_____________

749

Cir. 1986).

F.2d at

submitted

952.

all of

If such

801 F.2d 558,

Here, Judge

Tauro noted that

this information,

the attorneys

and found that

the records

were "essentially contemporaneous and . . . reliable".

Gloucester,
__________
submitted

789 F.Supp.
affidavits,

Following the

61, 64
as

well

admonition in

deducted hours

(D.Mass
as

1992).

the

Grendel's Den,
_____________

from the total

Deary v.
________

The attorneys

actual

time

the district

requested where the

slips.

court

records were

not sufficiently precise or were not in chronological

order, and

where the

attorney's

affidavit.

time slips

failed to

correspond with the

The court denied seventy-eight hours out of the 699.4

hours requested.
The district court

must also make a finding

as to the

prevailing

market

rate,

attorneys' affidavits.

based

on

evidence

than

the

Bordanaro v. McLeod, 871 F.2d 1151, 1168

____________________

(1st Cir. 1989), cert. denied, 493 U.S. 820

_____________
here

other

noted that counsel

(1989).

submitted affidavits from

The

judge

other Boston

attorneys regarding fees in similar cases, as well as information

about

billing

rates for

Massachusetts

law firms.

examined this information,

as well as the

levels

correct

in

addition,

assessing
the

court

the

awarded

requested for pretrial

attorneys' experience

hourly

lower

The court

billing

hourly

rate.

rates

work performed by counsel.

than

In

those

Finally, the

court detailed its reasoning for refusing a reduction in fees due

-1313

to

the fact

against

that

only

one of

the

plaintiffs was

one defendant and for refusing

counsel for a risk factor enhancement of

district

court

attorneys' fees,
fees granted.

more

than

adequately

and explained its

successful

a request by plaintiffs'
fees.
analyzed

We find that the

the

reasoning for the

issue

of

amount of

III.
III.
Conclusion
Conclusion
__________
In sum, we affirm the holding below.
display

actionable bias

evidence regarding
admitted
of

against the

Officer

Maki's

under Fed. R. Evid.

Officer Maki,

the error

appropriately detailed its

fees and costs,

The judge did not

defendant.
suspension

Although
was

the

incorrectly

608 through the rebuttal testimony

was harmless.

The

district court

reasoning in granting

the attorneys'

and the award will

Affirmed.
Affirmed.
_________

-1414

not be disturbed

on appeal.