The Honorable William A. Knox, United States Magistrate Judge 1

for the Western District of Missouri. The parties consented to

trial of the case before a magistrate judge pursuant to 28 U.S.C.

§ 636(c).

____________

No. 95-1381

____________

Melvin Eugene Duckworth, *

*

Appellee, *

*

v. *

* Appeal from the United States

John H. Ford, * District Court for the 

* Western District of Missouri

Appellant. *

*

Richard C. Rice, *

*

Defendant. *

____________

 Submitted: November 16, 1995

 Filed: May 15, 1996

____________

Before McMILLIAN, Circuit Judge, HENLEY, Senior Circuit Judge,

and FAGG, Circuit Judge.

____________

McMILLIAN, Circuit Judge.

John H. Ford appeals from a final judgment entered in the United

States District Court for the Western District of Missouri, upon a jury

1

verdict, in favor of Melvin Eugene Duckworth in this civil rights action.

For reversal, Ford argues there was insufficient evidence as a matter of

law to support the jury verdict and that the district court abused its

discretion in admitting into evidence certain information about the

judgment in
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another case involving Ford. For the reasons discussed below, we affirm

the judgment of the district court. 

In 1988 Duckworth and Ford were majors in the Missouri state highway

patrol. The superintendent was about to retire, and Ford and C.E. Fisher

were rivals for the position. Duckworth supported Fisher. In early 1988

Ford requested an employee of the highway patrol’s communications division

to periodically “sweep” his office telephone. In May 1988 the employee

discovered a device of some kind on Ford’s office telephone. The employee

removed the device and reported the discovery to Ford. Ford asked the

employee not to tell anyone about the device; however, the employee later

told his supervisor about the device. Ford suspected the device could have

come from the highway patrol’s Division of Drug & Crime Control (DDCC),

which Duckworth commanded. Ford told several fellow highway patrol

officers about the discovery of the device and also reported the discovery

to the superintendent. In June 1988 the governor nominated Ford as

superintendent. Ford reported the discovery of the device to the state

director of public safety and the assistant director of public safety. 

In early July 1988 Duckworth and Fisher heard that there were rumors

circulating within the highway patrol that they were “in trouble” and would

be demoted and transferred because they had “bugged” or wiretapped Ford’s

office telephone. Duckworth talked to the retiring superintendent about

the rumors and the retiring superintendent told Duckworth that the device

was not a “bug.” A highway patrol criminalist and the FBI later identified

the device as a “click suppressor,” a type of telephone equipment and not

a monitoring device. 

At a mid-July 1988 staff meeting the retiring superintendent

described the wiretap rumors as Ford’s problem. Duckworth and Fisher

requested an FBI investigation, but Ford denied the request. Ford

officially became the acting superintendent on August 1, 1988. 
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The wiretap rumors continued to circulate through the fall and winter of

1988. In 1989 the state senate refused to confirm Ford’s appointment until

litigation involving Ford and another member of the highway patrol had been

resolved. The jury in that case found against Ford, and the governor

withdrew Ford’s nomination. 

Duckworth testified that the wiretap rumors adversely affected his

physical and mental health. He feared that his career had been ruined by

the rumors, and he was under considerable stress and very depressed.

Duckworth suffered a heart attack in November 1988 and had bypass surgery

in June 1989. He took long-term disability status and left the highway

patrol in May 1990. 

Duckworth subsequently filed this civil rights action in federal

district court alleging that Ford had violated his first amendment rights

by spreading the wiretap rumors in retaliation for his supporting Fisher

for the superintendent position and that this retaliation caused his

constructive discharge. The district court denied defense motions for

summary judgment on the basis of qualified immunity, holding that

Duckworth’s opposition to Ford and his support of Fisher was protected

speech, even if he had a personal interest in Fisher’s success, the law

regarding first amendment retaliation claims was clearly established in

1988, and Ford was not entitled to judgment as a matter of law on the issue

of motive. We affirmed. Duckworth v. Ford, 995 F.2d 858 (8th Cir. 1993).

At trial, Duckworth, Ford, several highway patrol officers, state

investigators, Duckworth’s wife, and his doctors testified about the events

at issue and their effect on Duckworth’s physical and mental health. In

addition, the district court admitted into evidence certain information

about the litigation and jury verdict in favor of the plaintiff and against

Ford in another case, Darnell v. Ford, 903 F.2d 556 (8th Cir. 1990). The

jury found in favor of Duckworth and against Ford and awarded Duckworth

damages in the
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amount of $1,176,000.00. Post-trial motions for judgment as a matter of

law or for new trial were denied. This appeal followed. 

First, Ford argues there was insufficient evidence as a matter of law

to support the jury verdict that he circulated the wiretap rumors. He

argues that the jury verdict could only have been the result of speculation

and conjecture because there was no evidence that he accused Duckworth of

tapping his office telephone, or that he circulated the wiretap rumors or

urged any of his fellow highway patrol officers to circulate such rumors,

or that he had any motive to retaliate against Duckworth for supporting

Fisher. 

Ford moved for judgment as a matter of law at the close of the

plaintiff’s case but failed to renew the motion at the close of all the

evidence. Ford’s failure to renew the motion for judgment as a matter of

law at the close of all the evidence operated as a waiver of the

sufficiency of the evidence issue. Fed. R. Civ. P. 50(b); see, e.g., Smith

v. Ferrel, 852 F.2d 1074, 1075-76 (8th Cir. 1988). However, the

sufficiency of the evidence was raised in the alternative motion for new

trial which was denied by the district court. See, e.g., Harris v. Zurich

Insurance Co., 527 F.2d 528, 529-30 & n.1 (8th Cir. 1975). We have

reviewed the record and hold the district court did not abuse its

discretion in denying the motion for new trial on the ground of

insufficient evidence. There was evidence that Ford knew that Duckworth

supported Fisher; Ford told several highway patrol officers that he had

found a device on his office telephone and suggested that the device could

have come from DDCC, the division commanded by Duckworth; Ford took no

action to counter the wiretap rumors once he learned that his office

telephone had not been tapped; and Duckworth was injured by the wiretap

rumors. The jury could have reasonably inferred from the evidence that

Ford acted with the intent to retaliate against Duckworth for supporting

Fisher. 
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Ford next argues the district court abused its discretion in

admitting into evidence certain information about the judgment in another

case, Darnell v. Ford, as evidence of other wrongs or acts under Fed. R.

Evid. 404(b). He argues the two cases are not factually similar and that

this evidence improperly suggested that he was someone who had a propensity

to retaliate, which is exactly what Fed. R. Evid. 404(b) prohibits. Ford

also argues that the district court should have excluded this evidence

because its probative value was substantially outweighed by the danger of

unfair prejudice. 

We hold the district court did not abuse its discretion in admitting

this evidence. Under Fed. R. Evid. 404(b), evidence of other wrongs or

acts is admissible if it is “(1) relevant to a material issue, (2)

established by a preponderance of the evidence, (3) more probative than

prejudicial, and (4) similar in kind and close in time to the events at

issue.” United States v. Hazelett, 32 F.3d 1313, 1319 (8th Cir. 1994),

citing King v. Ahrens, 16 F.3d 265, 268 (8th Cir. 1994). The two cases are

factually similar. In Darnell v. Ford the plaintiff was a captain in the

state highway patrol who claimed that Ford had violated his first amendment

right to free speech by recommending his demotion because he had opposed

Ford’s candidacy for superintendent. The jury found for the plaintiff.

The events at issue in Darnell v. Ford occurred at about the same time as

the events at issue in the present case. Evidence that Ford had retaliated

against someone else at about the same time and under similar circumstances

is evidence from which the jury could reasonably infer that Ford had a

similar motive or intent to retaliate against Duckworth. Cf. Estes v. Dick

Smith Ford, Inc., 856 F.2d 1097, 1103 (8th Cir. 1988) (other incidents of

employment discrimination). We cannot say that its probative value was

substantially outweighed by its prejudicial impact. We note that the

district court cautioned the jury about the limited relevance of the

judgment in Darnell v. Ford before the opening statements and again before

the cross-examination of William
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Darnell, who testified as a witness in the present case and who was the

plaintiff in Darnell v. Ford. 

Accordingly, we affirm the judgment of the district court.

A true copy.

Attest:

 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.