1

10-271

McLaurin v. New Rochelle Police Officers

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED

ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE

PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A

DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN

ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST

SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

1 At a stated term of the United States Court of Appeals

2 for the Second Circuit, held at the Daniel Patrick Moynihan

3 United States Courthouse, 500 Pearl Street, in the City of

New York, on the 15th 4 day of September, two thousand eleven.

5

6 PRESENT: DENNIS JACOBS,

7 Chief Judge,

8 ROBERT A. KATZMANN,

9 SUSAN L. CARNEY,

10 Circuit Judges.

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12 - - - - - - - - - - - - - - - - - - - -X

13 CHARLES B. MCLAURIN, 

14

15 Plaintiff-Appellant,

16

17 -v.- 10-271

18

19 NEW ROCHELLE POLICE OFFICERS, P.

20 KORNAS, L. FALCONE, BRIAN FAGAN, DAVID

21 LONERGAN,

22

23 Defendants-Appellees.

24

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27

28 FOR APPELLANT: Charles B. McLaurin, pro se

29 New Rochelle, NY
2

1 FOR APPELLEE: Lalit K. Loomba

2 Wilson, Elser, Moskowitz, Edelman & Dicker

3 LLP

4

5

6 Appeal from a judgment of the United States District

7 Court for the Southern District of New York (Patterson, J.).

8

9 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED

10 AND DECREED that the district court’s judgment is AFFIRMED.

11

12 Appellant Charles B. McLaurin, proceeding pro se,

13 appeals the district court’s grant of partial summary

14 judgment in favor of the Appellees with respect to, inter

15 alia, his 42 U.S.C. § 1983 claims for false arrest, and the

16 district court’s judgment, following a jury trial, in favor

17 of the Appellees on his excessive force claims. We assume

18 the parties’ familiarity with the underlying facts, the

19 procedural history, and the issues presented for review.

20

21 A district court’s grant of summary judgment is

22 reviewed de novo. See Miller v. Wolpoff & Abramson, L.L.P.,

23 321 F.3d 292, 300 (2d Cir. 2003). Summary judgment is

24 appropriate only if the moving party can show that there is

25 no genuine issue of material fact, and that the moving party

26 is entitled to judgment as a matter of law. Id. We resolve

27 all ambiguities and draw all factual inferences in favor of

28 the nonmovant; the inferences from the underlying facts

29 (revealed in materials such as affidavits, exhibits,

30 interrogatory answers, and depositions) must be drawn in the

31 light most favorable to the nonmoving party. See Nationwide

32 Life Ins. Co. v. Bankers Leasing Ass’n, Inc., 182 F.3d 157,

33 160 (2d Cir. 1999). 

34

35 We “review a district court’s evidentiary rulings for

36 abuse of discretion, and will reverse only for manifest

37 error.” Cameron v. City of New York, 598 F.3d 50, 61 (2d

38 Cir. 2010) (quoting Manley v. AmBase Corp., 337 F.3d 237,

39 247 (2d Cir. 2003)). District courts have “‘wide latitude

40 . . . in determining whether evidence is admissible, and in

41 controlling the mode and order of its presentation to

42 promote the effective ascertainment of the truth.’” Id.

43 (quoting SR Int’l Bus. Ins. Co. v. World Trade Ctr. Props.,

44 LLC, 467 F.3d 107, 119 (2d Cir. 2006)). 

45
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1 [1] An independent review of the record confirms that the

2 district court properly granted summary judgment in favor of

3 the Appellees with respect to the § 1983 false arrest

4 claims, on the ground that Appellant’s conviction

5 established probable cause for the arrest as a matter of

6 law. See Cameron v. Fogarty, 806 F.2d 380, 388-89 (2d Cir.

7 1986). The district court properly granted summary judgment

8 in favor of the Appellees with respect to the malicious

9 prosecution claim because Appellant’s indictment by a grand

10 jury created a presumption of probable cause, and there was

11 no genuine issue of material fact as to whether the

12 indictment was produced by “fraud, perjury, the suppression

13 of evidence or other police conduct undertaken in bad

14 faith.” Rothstein v. Carriere, 373 F.3d 275, 282-83 (2d

15 Cir. 2004) (internal quotation marks omitted). The grant of

16 partial summary judgment in favor of the Appellees is

17 affirmed for substantially the same reasons as stated by the

18 district court in its well-reasoned and thorough March 2009

19 opinion and order.

20 

21 [2] The district court properly denied Appellant’s cross22 motion for summary judgment on the ground that Appellant’s

23 acquittal on certain criminal charges could not be used to

24 collaterally estop defendants Kornas and Falcone from

25 litigating the issue of probable cause. Among other

26 reasons, Kornas and Falcone were neither parties in the

27 criminal proceedings against Appellant, nor were they in

28 privity with the State of New York. See Jenkins v. City of

29 New York, 478 F.3d 76, 85 (2d Cir. 2007). The district

30 court’s denial of plaintiff’s motion for summary judgment is

31 affirmed for substantially the same reasons as stated by the

32 district court.

33

34 [3] Appellant’s arguments with respect to the motion in

35 limine lack record support. Appellant claims that the in

36 limine motion sought to allow evidence of his 1990

37 conviction; but a review of that motion reveals that it did

38 not. Appellant contends that the district court denied his

39 request for additional time to oppose the motion in limine,

40 and to demonstrate that his 1990 conviction was unlawful. A

41 review of the transcript of the pre-trial conference,

42 however, shows that Appellant never requested any such

43 relief. Although Appellant now argues that he was

44 essentially denied the opportunity to testify at trial,

45 Appellant made it clear several times that he did not intend

46 to testify at trial. Although Appellant now implies that he
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1 may have selected to testify but for the district court’s

2 failure to give him time to document the invalidity of his

3 1990 conviction, he failed to raise this challenge before

4 the district court. No reason is presented why we should

5 depart from the general rule that we will not address issues

6 raised for the first time on appeal. See Singleton v.

7 Wulff, 428 U.S. 106, 120-21 (1976); see also Virgilio v.

8 City of New York, 407 F.3d 105, 116 (2d Cir. 2005). 

9

10 [4] Finally, the district court properly admitted the

11 challenged audio recording. The testimonial evidence

12 offered by the Appellees — namely, the testimony of officer

13 Michaels regarding his participation in the recorded call

14 and of Detective D’Andrea regarding the chain of custody and

15 reproduction of the copy of the recording that was played

16 for the jury — was “sufficient to support a finding that the

17 matter in question is what its proponent claims,” Fed. R.

18 Evid. 901(a), and it was therefore sufficient to

19 authenticate the tape. See United States v. Tropeano, 252

20 F.3d 653, 661 (2d Cir. 2001); United States v. Pluta, 176

21 F.3d 43, 49 (2d Cir. 1999) (“[T]he burden of authentication

22 does not require the proponent of the evidence to rule out

23 all possibilities inconsistent with authenticity . . . .

24 Rather, the standard for authentication, and hence for

25 admissibility, is one of reasonable likelihood.”) (internal

26 quotation marks omitted). Furthermore, “[a]uthentication of

27 course merely renders [audio] tapes admissible, leaving the

28 issue of their ultimate reliability to the jury,” and any

29 doubts raised at trial concerning their reliability “would

30 . . . go to the weight to be given to the tapes by the jury,

31 not to their admissibility.” Tropeano, 252 F.3d at 661; see

32 also United States v. Sovie, 122 F.3d 122, 127 (2d Cir.

33 1997) (holding that “allegations of tampering went to the

34 weight of the evidence rather than to its admissibility”).

35

36 McLaurin argues that the admission of the recording

37 violated the best evidence rule. Federal Rule of Evidence

38 1002, commonly referred to as the “best evidence rule,”

39 provides: “To prove the content of a writing, recording, or

40 photograph, the original writing, recording, or photograph

41 is required, except as otherwise provided in these rules or

42 by Act of Congress.” Fed. R. Evid. 1002. However, “[a]

43 duplicate is admissible to the same extent as an original

44 unless (1) a genuine question is raised as to the

45 authenticity of the original or (2) in the circumstances it

46 would be unfair to admit the duplicate in lieu of the
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1 original.” Fed. R. Evid. 1003. McLaurin has not raised a

2 genuine question as to the authenticity of the original

3 recording, and therefore the district court did not abuse

4 its discretion by admitting the duplicate recording into

5 evidence. 

6 

7 We have considered appellant’s remaining arguments and

8 find them to be without merit. For the foregoing reasons,

9 the judgment of the district court is hereby AFFIRMED.

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13 FOR THE COURT:

14 CATHERINE O’HAGAN WOLFE, CLERK

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