14-1826

Davis v. Ve lez

1 UNI TED STATES COURT OF A PPEAL S 2 FOR THE SECOND CI RCUI T 3 - - - - - - 4 Aug ust Term, 2014 5 (Arg

ued: April 22, 2015 Dec ided: Aug ust 4, 2015) 6 Docke t No. 14-1826 7

_________________________________________________________ 8 L EROY DAVI S, 9 Plaintiff-Appellee , 10 - v. - 11 J AVI ER VEL EZ , J AMES L UKESON, a nd GARY CAL HOUN, 12 Def endants-A

ppellants. * 13

_________________________________________________________ 14 Be fore : KEARSE, PARKER, and W ESL EY, Circuit J udg es. 15 Appea l from a judgme nt enter ed in the United States District Court for t h e E as t er n 16 District of New York following a jury trial befor e J ack B. Weinstein, J udg e, awa rding plaintiff, who 17 had previously been acquitted of drug and firea rm char g es, a total of $560,000 in c ompensatory and 18 punitive damag es ag ainst defe ndant police office rs pursuant to 42 U.S.C. § 1 9 8 3 for false arr est, 19 malicious prosec ution, and denial of a fair trial. On appea l, defe ndants contend principally that they

* The Clerk of

Court is directed to ame nd the offic ial caption to conf orm with the above.1 are entitled to a new trial beca use of the admission of hear say evidenc e that another person said he had 2 fra

med plaintiff for those crimes, and beca use of improprieties by the jury in its deliberations. See 15 3 F.Supp.3d 234 (2014). 4 Affir med.

5 MI CHAEL L UMER, New York, New York (James C. Neville, Lumer 6 & Neville, New York, New York, on the brief) , for Plain t i ff7 Appellee

. 8 TAHI RI H M. SADRI EH, Assistant Corpor ation Counsel, New York, 9 New York (Z acha ry W. Carter , Corporation Counse l o f the City 10 of Ne w Yo rk , New York, New York, on the brief) , for 11 Def endants-A

ppellants.

12 KEARSE, Circuit J udg e: 13 Def endants J avier Velez and J ames Lukeson, office rs in the New York City Police 14 Depa

rtment (" NYPD" ), and defe ndant Gar y Calhoun, an NYPD serg eant, appeal from a judgme nt 15 enter ed in the United States District Court for the Easter n District of New York following a jury trial 16 befor e J ack B. Weinstein, J udg e, order ing Velez and Lukeson eac h to pay plaintif f L er o y Da v i s 17 $180,000 in compensa tory and punitive damag es, and order ing Calhoun to pay Davis $200,000 i n 18 co m p en s atory and punitive damag es, on Davis' s claims broug ht under 42 U.S.C. § 1983 for fa l s e 19 arr est, malicious prosec ution, and denial of a fair trial. Davis had been arr ested by defe ndants, leading 20 to a fede ral prosec ution on char g es of possession of narc otics and a firea rm, but he was acquitted on 21 all counts. On appea l in the prese nt case , defe ndants contend principally that they are entitled to a new 22 trial (1) becaus e of various evidentiar y ruling s, including the admission of hear say evidenc e as to

21 statements by a person who said he had planted the drug s and firea rm that defe ndants claimed to have 2 found in Davis' s possession, and (2) beca use of improprieties in the jury deliberations. Lukeson and 3 Calhoun also contend that they wer e entitled to judgme nt as a matter of law dismiss ing Davis' s claims 4 ag ainst them for malicious prosec ution. For the rea sons that fo l l ow, we conclude that defe ndants' 5 contentions provide no ba sis for re versa l.

6 I . BA CKGROUND

7 The prese nt civil action has its orig in in defe ndants' arr est of L eroy Davis (" L eroy " or 8 "D avis" ) in 2009. The differ ing versions of that event, and Davis' s evidenc e as to how the arr est came 9 to pass, are descr ibed in the district court' s opinion denying defe ndants' motions for a new tria l, see 10 Davis v. Velez, 15 F.Supp.3d 234 (E.D.N.Y

. 2014) (" D.Ct. Op." ), familiarity with which is assumed. 11 Def endants arr es t ed plaintiff [Davis] on October 2, 2009. They 12 claimed that one of them saw plaintiff furtively drop a plastic bag on a public 13 sidewalk, hear d a metallic clink that sounded like a g un, and found a g un and 14 cra ck coca ine inside the bag

. Bas ed on evidenc e supplied by defe ndants, 15 plaintiff was indicted by a fede ral g rand jury

. . . . Af ter spending thirteen 16 months in jail awa iting trial, plaintiff was tried on fede ral g un and drug 17 char g es. He was a cquitted of a ll charg es. 18 D.Ct. Op., 15 F.Supp.3d at 237. After his acquittal, Davis commence d the prese nt action pursuant to 19 42 U.S.C. § 1983 for, to the extent pertinent to this appea l, false arr est, malicious prosec ution, and 20 denial of a

fair tr ial.

21 A. Def

endants' Ver sion of the Arr est 22 Def endants t es tified that in the ear ly hours of October 2, 2009, they wer e in an

31 unmarke d car , dresse d in plainclothes, on an overnig ht patrol i n Br ookly n, New York. (See Trial 2 Transc ript (" Tr." ) 290-92, 397, 410-11.) As they turned a corne r and drove slowly along the 600 block 3 of Chaunce y Street (or "C h au n ce y ") , Velez, sitti ng in the back seat of the car , saw a man--D avis-- 4 walking down the block, car ry ing a black plastic bag

. Velez testified that Davis g lance d back toward 5 the o ff

i cers and then dropped the bag , and Velez hear d what sounded like the m etallic sound that a 6 firea

rm makes when it hits the g round. "Without saying any thing to h i s co l l ea gu es, Offic er Velez 7 jumped out of the slowly moving c ar a

nd asked the pedestria

n what was in the bag." D.Ct. Op., 15 8 F.Supp.3d at 239. W h en Davis responded "g arba g e" (Tr. 298), Velez l ooked in the bag and saw a 9 bottle of soda, a box of chicke n and, bene ath the box, a firea rm and ziplock bag s of cr ack c ocaine

. 10 Velez and Lukeson handcuf fed Davis and patted him down. They testified that he had 11 no identification. L ukeson testified that when Davis indicated that he lived in 642 Chaunce y , L ukeson 12 took Davis's h o u s e k ey s from his pocket or belt and used them to enter 642 Chaunce y in order to 13 deter

mine whether someone could identify Davis or produce identification for him. He knocked on 14 interior doors on the g round floor, g ot no answe r, and left the building. He testified that he was in the 15 house for at most 25-30 seconds. Calhoun testified that Lukeson had g one into 642 Chaunce y and had 16 been inside f

or 30-35 se conds. 17 Davis was there afte r promptly taken to the prec inct. Lukeson did not see the contents 18 of t he black plastic bag until he was at t he precinct. Neither Calhoun nor L u keson had seen Davis 19 holding the bag

. T h ey t es t i fi ed that they first saw it when it was on the ground or when Velez was 20 holding it. Neither Lukeson nor Calhoun wa s asked a t trial whether they had hea rd a me tallic clink 21 or sound. See D.Ct. Op., 15 F .Supp.3d at 239-40.

41 B. D avis' s Version of the Arre st 2 Davis testified that on the night in question h e h ad neither been walking down 3 Chaunce y Street nor car ry ing a bag

. Rather, he and a friend had just com e out of 642 Chaunce y , 4 wher e Davis lived; and Davis was about to g o next door t o 640 Chaunce y to see his then-g irlfriend 5 who was living there wit h her gr andmother. Davis had just locked the gat e to 642 Chaunce y when 6 he was approa ched by Lukeson and Velez, who order ed him to put his hands on the g ate and told his 7 friend to lea

ve. 8 Davis testified that he had with him not only the key s to 642 Chaunce y but also his 9 Social Security car d and a benef it car d as identification. Either Velez or Lukeson took the key s from 10 Davis' s pocket. Some 10 mi n u t es later, Davis hear d that office r say "put handcuf fs on him." 11 (Tr. 455.) He wa s then taken to the police station. 12 Two other witnesses called by Davis testified to their observa tions of the scene at 642 13 C h au n ce y on October 2, 2009, around 1:00 a.m., just afte r Davis' s arr est. Shakima J ones (or 14 "Shakima" or " Kima" ), the sister of L ay shonna J ones who was Da vis's then- g irlfriend, te stified that 15 she was returning from a party to her gr andmother' s ho u s e at 6 4 0 Chaunce y and saw Davis and his 16 friend sitti ng on the g round in ha ndcuff s. She saw two police office rs with the m--re cog nizi ng them 17 as police office rs beca use they had g uns and flashlig hts--and another office r standing on the stoop of 18 642 Chaunce y smoking a cig are tte. Among t h e office rs she saw wer e Velez and Lukeson. (See 19 Tr. 1 6 6 -67.) Shakima and her companion Rasheem Kelly (or "Ra sheem" ), who was a g randson of 20 Mary J ac k s o n , the owner of 642 Chaunce y , then rema ined acr oss the street from 640 and 642 21 Chaunce y and watche d. Shakima testified that for some 20-30 minutes there appea red to be a number 22 of off

icer s moving a

round with flashlig hts inside 642 Chauncey

. 51 After the office rs had left, Rasheem went into 642 Chaunce y to c heck the house. He 2 told Shakima that mattresses, dra wer s, and a stove had bee n moved ar ound. (See id. a t 216-17; see 3 also id. at 168 (the "ne x t day we went to the house and

. . . help[ed] Mrs. J ackson put a lot of stuff 4 back tog ether ") .) 5 Vincent Holmes, who lived at 644 Chaunce y , testified that he was arr iving home from 6 work and saw Davis and another man being detained by police just outside the g ate to Holmes' s house. 7 After speaking briefly with one of the office rs, Holmes stood on his front steps for some five minutes 8 and watche d. Holmes saw another office r exit 642 Chaunce y car rying a box , sh ow the box to an 9 office r who wa s smoking a c iga rette, a nd then g o back into 642 Chaunc ey . 10 Velez testified that he did not reme mber seeing Shakima J ones on the street that night, 11 or s ee i n g an y o ne g o in and out of 642 Chaunce y , or seeing an office r bring ing out a box

. (See 12 Tr. 331-32, 355; id. at 332 (" I wo u l d n o t be able to tell y ou whether it happene d or not, I don' t 13 reme mber e ver se eingit.").)

14 C. The Role of Te rre l Norman 15 Davis denied that he had possessed cra ck or a g un that night and that he had ever had 16 cra ck or a g un in 642 Chaunce y . His theory was that he had been fra med by Terr el Norman, a rela tive 17 of Mary J ackson, the woman who owned 642 Chaunce y . Davis had moved to 642 Chaunce y in April 18 2009, having become a good friend of J ackson' s son, whom Davis reg arde d as a fathe r or an uncle. 19 Davis and J ackson develope d a g ood rela tionship; he helped her with g arde ning, baking , and 20 maintenanc e, and called her " g randmother " ( Tr. 437; see also id. at 132 (Shakima hear d Davis ref er 21 to J ackson a s "G randma ") ). Jackson boug ht Davis clothes and f urniture for hi s room and gave him

61 money . 2 Norman, a g randson or nephew of J ackson- -g ener ally ref err ed to as her g randson- -who 3 sometimes stay ed at 642 Chaunce y , beca me jealous of Davis, rec og niz i ng that Davis was more 4 welcome there than he was (see , e.g ., id. at 144 (Shakima J ones observe d many occa s i o ns when 5 J ackson was "upse t with Terr el Norman coming into her house" ); see al s o id. at 177 (Shakima 6 observe d that Davis had key s to J ackson' s house but never observe d Norman having such key s)). 7 Pursuant to pretria l ruling s (see Part I I .A. below), Davis was allowed to prese nt ev idence at t rial as 8 to statements by Norman (see Part I .D. below) that supported Davis' s theory that Norman had planted 9 the gun and cr ack in 642 Chaunc ey in order to f

rame Davis (the N orman " Confession")

. 10 Shakima J ones testified that on one oc casion in May 2009 when she was in the front 11 y ard of her g randmother ' s house at 640 Chaunce y , she hear d scre aming and y elling coming from 642 12 Chaunce y . Norman came storming out, saying, "this is what y ou want to do to me, g randma "; "[t]hi s 13 is how y ou are g oing to trea t me. I am y our flesh and blood. You are g oing to let a strang er live here 14 befor e y ou let us stay in y our house. This is wrong . This is wrong . I can' t deal with it." (Tr. 139-40.) 15 Clara J ones (or "Clar a" ), t he mot her o f Shakima and L ay shonna J ones, t estified that 16 sometime befor e Davis' s October 2009 arr est, perha ps in the summer, when Clara was in front of her 17 mother' s house at 640 Chaunce y , Davis and Norman emer g ed from 642 Chaunce y in the midst of an 18 arg

ument in which eac h had g rabbe d the other by the shirt. Norman was say ing to Davis, "Y ou g etting 19 on my

nerve s, y ou make me sic k. That' s all rig ht. I ' m going to g et y ou. I ' m going to ge t y ou." ( I d. 20 at 108.) 21 Davis test i fi ed that he witnessed quarr els betwee n Norman and J ackson, in which 22 Norman asked J ackson why she trea ted Davis better than she did Norman (see , e.g ., Tr. 441 (Norma n

71 asked J ackson, "Why y ou alway s g iving L eroy money and don' t g ive me no money ? ") ), and J ackson 2 asked Norman, "Why y ou cannot be like L eroy ? " (id. at 442). On October 1, 2009, when one of these 3 quarr els betwee n Norman and J ackson beca me phy sical and Norman lunge d toward his g randmother , 4 Davis g rabbe d Norman and the two tussled, causing a g un to fall out of Norman' s pants. Davis picked 5 up the gun and g ave it to J ackson; J ackson ga ve the g un back to Norman and told him to g et out of 6 her house . Norman sa id to Davis, "I ' m going to ge t y ou. I ' m going to ge t y ou." ( I d. at 443.) 7 Hours later , Davis wa s arr ested.

8 D. The N orman " Confession" 9 Shakima J ones testified that she had known Norman all of his li fe, as their families 10 wer e neighbor s, and that they fre quently sociali z ed

. S h e had conversations wit h Norman "[a]ll the 11 time" "thr o u gh the y ear s." (Tr. 171.) On sever al occa sions she had observe d Norman possessing 12 g uns, and she had observe d him possessing various controlled substances. Some two wee ks afte r 13 Davis moved into 642 Chaunce y , Shakima was in the fr ont y ard of that house with Norman and his 14 cousin Rasheem when Norman, say ing "I g ot some new toy s , " s h o we d t h em four g uns (id. at 136). 15 On a differ ent occa sion, Shakima witnessed Norman pull out a g un and point it at Rasheem during an 16 arg

ument. (See id. at 150; see also id. at 439-40 (Davis observe d Norman poi nting a g un at 17 Rasheem) .) On another occa sion, Norman g ot Shakima to let him leave two duffe l bag s in her house 18 at 650 Chaunce y ; Norman later took a g un, a packa g e of cra ck coca ine, and a bag of pills he said wer e 19 ecsta sy out of one of thos e b ag s, and Shakima saw another g un rema ining in the bag

. (See id. 20 at 138-43.) And on y et another occa sion, when J ackson was away and Davis would not unlock the 21 g ate and door to le t him in, Shakima observe d Norman enter 642 Chaunce y throug h a window; and,

81 afte r hear ing shouting coming from the house, she saw Norman run down the block and fire sever al 2 shots into t he air . (See id. a t 144-49, 543; see a lso id. at 523-25 (Davis describingthat incident).) 3 Shakima t estified that in the summer of 2013--a lthough she admitted she might be 4 mistaken about the timing (see Tr. 193)-- Norman had come to Br ookly n from somewher e in the South 5 wher e he was then living, and he and his brother called her t o co m e o v er to their aunt's house for a 6 visit. During that visit, Norma n broug ht up the subject of Davis and told Shakima that he, Norman, 7 had put the g un and the bags o f cr ac k for which Davis was arr ested on October 2, 2009, in 642 8 Chaunce y . Norman sa id he had done it in order to "kill two birds with one st one," i.e., t o g et rid of 9 both "L eroy Davis and that g un." (I d. at 174, 175.) Norman said h e wanted Davis out of his 10 g randmother ' s house (see id. at 176-77, 180), and he said "I rea lly , rea lly neede d to g et rid of that g un 11 any

way , Kima, y ou don' t understand" (id. at 176). 12 Shakima testified that Norman said that on that night in October 2009, afte r putting the 13 g un and the crack i n 642 Chaunce y (see id.), he had called policemen, to whom he ref err ed as the 14 "T hree Amigos" --mentioning the names "V elez" and "Ca l h o u n " and calling them "my boy s" (id. 15 at 178). Norman told Shakima that he had put the g un and the drug s in a cra wl space toward the roof. 16 (See id. at 178-79.) Norman said that "w hen he called" the Three Amigos, "he called Velez" but g ot 17 "no answe r. So he called Calhoun" and g ave Calhoun "the information." (I d. at 179.) Norman told 18 her tha

t Calhoun had responde d, "w e' re on our way ." ( I d. at 180.) 19 Def endants denied ever having hear d of Norman and denied rec eiving a tip rela ted to 20 Davis or 642 Chaunc ey . (See Tr . 370, 405, 415-16.)

91 E. The Ve rdicts 2 The jury returne d verdic ts in favor of Davis ag ainst eac h of the defe ndants on eac h of 3 three claims: false arr est, malicious p ro s ec u t i on, and denial of a fair trial by providing false 4 information to prosec utors. I t awa rded compensa tory damag es ag ainst eac h defe ndant in the amount 5 of $54,000; it awa rded punitive damag es ag ainst Velez and Lukeson in the amount of $126,000 eac h 6 and ag ainst Calhoun in the amount of $146,000. 7 Def endants made sever al motions for a new trial. They argue d principally that they 8 wer e unfairly prejudice d by the admission of the hear say evidenc e as to the Norman Confession and 9 by other evidentiar y ruling s (se e P ar t s I I .A. and I I .C.1. below) and by events during the jury ' s 10 delibera

tions, most of which came to light afte r the end of the trial (see Part I I .B. below). The motions 11 wer e denie d, and judg ment was e ntere d ref lecting the jury ' s verdicts.

12 I I . DI SCUS SI ON

13 On appea l, defe n d an t s contend principally that the trial court err ed (1) in admitting 14 evidenc e of the Norman Confession and excluding offse tting evidenc e, and (2) in denying a new trial 15 on the basis of information rec eived as to improprieties in the jury delibera tions. For the rea sons that 16 follow, we se e no basis for reve rsal.

17 A. Admissibili ty of the Nor

man Confession Under

Rule 804(b)(3) 18 Hea rsay , a statement by a decla rant "not ma[d] e while testify ing at the curr ent trial or 19 hear ing" and "of fer [ed] in evidenc e to prove the truth of the matter asser ted in the statement," Fe d. R.

101 Evid. 801(c) , is g ener ally not admissib l e u n l es s p ermit ted by an exception provided in the Fe dera l 2 Rules of Evidence ("Rules" ), see Fe d. R. Evid. 802. The Rul es provide exceptions for, inter alia, a 3 hear say statement that was ag ainst the decla rant' s penal i n t er es t i f the decla rant is unavailable as a 4 witness, see F ed. R. Evid. 804(b)( 3). 5 The exception for a statement ag ainst a decla rant' s penal interest applies to a statement 6 that 7 (A) a rea sonable p er s o n i n the decla rant' s position would have made 8 only if the person believed it to be true beca use, when made, it

. . . had so g reat 9 a tende ncy . . . to expos e the de clar ant to civil or criminal liability ; and 10 (B ) is supported by corr oborating cir cumstance s that clea rly indicate its 11 trustworthiness, if it is offe red in a criminal case as one that tends to expose the 12 decla rant to cr iminal liabili ty

. 13 Fe d. R. Evid. 804(b)( 3) (empha sis added)

. The Rule excepting such statements from exclusion on the 14 g round of hearsa y "is founded on the commons ense notion that rea sonable people, eve n rea sonable 15 people who are not espec ially honest, tend not to make self-inc ulpatory statements unless they believe 16 them to be true." Wil liamson v. United States, 512 U.S. 594, 599 (1994). 17 To the extent pertinent here , a decla rant is unavailable as a witness if he is "e x empted 18 from testifying about the subject matter of the decla ran t 's statement beca

use the court rules that a 19 privileg e applies," Fe d. R. Evid. 804(a) (1). The trial court may permissibly find that a declara n t is 20 unavailable on the g round of priv ileg e "w ith or without the [declara nt] being haled into court" to 21 i n voke the privileg e, wher e, for example, the court rea sonably relies on "r epre sentatio n s o f t h e 22 attorney s for

. . . incar cer at ed [ d eclarants] conce rning their clients' intentions to rely on their Fifth 23 Amendment privileg es." United States v. Wil liams, 927 F.2d 95, 99 (2d Cir.), cer t. denied, 502 U.S. 24 911 (1991); see id. (" The lawdoes not requir e the doing of a f utile act." ).

111 The trial court' s ultimat e d ecisions as to the admission or exclusion of evidenc e are 2 revie wed for abuse of discretion, see, e.g ., United States v. Gupta, 747 F.3d 111, 128 (2d Cir. 2014), 3 cer

t. denied, 135 S. Ct. 1841 (2015); Hea ley v. Chelsea Resource s, L td., 947 F.2d 611, 619-20 (2d Cir. 4 1991), and will not be disturbed unless they are "ma nifestly err oneous," SR Interna tional Business 5 Insuranc e Co. v. World Trade Center Properties, L L C, 467 F.3d 107, 11 9 (2d Cir. 2006) (interna l 6 quo t at i o n m arks omitted); I n re Martin-Tr igona , 760 F.2d 1334, 1344 (2d Cir. 1985) (interna l 7 quotation marks omitted). Fur ther, even an err oneous ruling does not war rant a reve rs al "[u]nless 8 justice require s otherwise." Fe d. R. Civ. P. 61; see, e.g ., L ore v. City of Sy rac use, 670 F.3d 127, 155 9 (2d Cir. 2012); Hea ley v. Chelsea Resour ces, L td., 947 F.2d at 620. 10 On this appea l, defe ndants d o n o t s u ggest that the Norman Confession to which 11 Shakima testified--indic ati ng that Norman (who was a previously convicted felon) had possessed a 12 g un and had conspired with p o l i ce o ff i cer s to incriminate and cause the conviction of an innocent 13 man--did not consist of statements ag ainst his penal interest. Rather, defe ndants contend principally 14 that the district court err ed (1) in ruling that Norman was unavailable as a witness, and (2) in admitting 15 the Confession without corr oborating circ umstances supporting its reliability

. (See defe ndants' brief 16 on appea l at 25-33.) Ne ither conte ntion has merit.

17 1. Unava ilability 18 Def endants argue principally that it was err or for the district court to find that Norman 19 was unavailable on the basis of "post-tr ial" testimony by Norman' s attorney that Norman had told her 20 he would rely on her advice and asser t his Fifth Amendment privileg e if called to testify (def endants' 21 brief on appea l at 26-27), and that the court err ed in failing to make a d et ermination as to whether

121 Norman would invoke the privileg e with respe ct to eac h question defe ndants wished to pose to him. 2 These argum en ts do not do the rec ord justice, for althoug h there was such posttrial testimony by 3 Norma n' s attorney , the district court' s ruling that Norman was unavailable was made prior to trial, 4 pursuant to a pr ocedur e to which de fenda nts had dec lined to object. 5 The trial in the prese nt case beg an on Dec ember 9, 20 1 3. In November , defe ndants 6 moved in limine for ruling s that Davis would be prec luded from offe ring into evidenc e, inter alia, "a ny 7 evidenc e reg arding Terr ell [si c] Norman" (Memora ndum of L aw in Support of Def endants' Motions 8 In L imine (" Def

endants' I n L imine Memorandum" ) at i; see id. at x iii-x v), including "STATE MENTS 9 MADE BY TERREL L [si c] NORMAN" (id. at x v). At the ensuing hear ing on the in limine motions, 10 the district court was informed that Norman- -who had been listed as a potential trial witness by Davis 11 more than a y ear ear lier-- was incar cer ated somewher e in the South; that neither side intended to seek 12 Norman' s appea ranc e as a witness at trial; and that Da vis soug ht to have the Norman Confession 13 admitted as statements ag ainst penal interest. The court instructed Da v i s to provide evidenc e of 14 Norman' s unavailability to testify . (See H ear ing T ransc ript, November 25, 2013, at 16-25.) 15 At a hear ing on Dec ember 3, 2013, t h e co urt and the parties wer e informed by 16 telephone by Norman' s criminal defe nse attorney Paris Br anch- Ramadan that s h e wo uld advise 17 Norman to invoke his Fifth Amendment priv i l ege an d t o refuse to testify at the trial in the prese nt 18 action. (See Hea ring Transc ript, Dec ember 3, 2013, at 12-13.) The court instructed Br anch- Ramadan 19 that afte r she cons u l t ed wi th Norman, if he indicated that he would nonetheless testify , she should 20 "c all me back and tell me that." (I d. at 13.) The court verifie d that Br anch- Ramadan understood that 21 she need not call if Norman would fo l l o w h er advice not to testify and that "the eff ect of [her] not 22 calling [t he court]" would be to signify that Norman wo u l d ref use t o testify (id. at 14). The parties

131 were asked whether they objected to that course of action; eac h side stated t hat i t had no objection. 2 (See id.) Neither side sug g ested that information must be obtained question-by -question as to whether 3 Norman w ould refuse to answer

. 4 No rm an' s attorney did not call the court. Norman was thus found unavailable

. 5 Def

endants having a g ree d to this process ca nnot complain of it on appea l. 6 On Dec ember 6, defe ndants moved for rea rg ument of the unavailability deter mination 7 on the ground that Norman, though incarce rate d, had spoken with a defense investiga tor within the 8 past wee k and was rec orded as having denied planting a g un or drug s ag ainst Davis. The statements 9 proff

ere d by defe ndants, rea d into the rec ord by the court on the m orning trial was to beg in, quoted 10 Norman in part as stating that he did n o t p l an t t h e gu n or drug s or set up Davis: "I loved him"; "I 11 would never set him up"; "I had love for him, honestly ." (Tr. 6.) The district court g rante d the motion 12 fo r reconsidera tion but adher ed to its prior decision that Norman was unavailable

. The cour t 13 permissibly conclude d that Norman' s making unsworn self- serving statements was not sufficient t o 14 raise a

n infere nce that he would be willing to testify under oath. 15 Def endants argue, rely

ing principally on United States v. Z appola, 646 F.2d 48, 53-54 16 (2d C ir. 1981), t hat t he dis trict court could not proper ly deter mine that Norman w as unava ilable on 17 the basis of privileg e without conducting an inquiry into whether Norman would invoke his privileg e 18 with r espec t to eac h specific proposed question (see defe ndants' brief on appea l at 27-28), including 19 questions that defe ndants deeme d "ne utral" (id. at 28). Def endants' relianc e on that case is misplaced, 20 for there the subpoenae d witness was a g overnme nt informant; we ruled tha t the court's acce ptance 21 of a "bla

nket asser

tion of the fifth amendment privileg e in response to all questions asked of" that 22 witness was inappropriate beca use as to questions with respe ct to his activities as a g overnme nt ag ent

141 he would be protec ted from criminal prosec ution, and his answe rs thus could not incriminate him, 646 2 F.2d at 53. As to any rele vant questions defe ndants would pose to Norman, howeve r, defe ndants deny 3 that he wa s an informa nt. 4 Fur ther, as to the pot ential for neutra l questions, defe ndants provided no li st of such 5 proposed questions for Norman, either in the Dec ember 3 confe renc e call with his attorney or in their 6 Dec ember 6 motion for rec onsideration. They mere ly stated, in a letter dated the day before the 7 Monday Dec ember 9 start of trial, that they "w ould proff er" such a list "upon the C ourt' s reque st" 8 (L etter from Duane Bla ckman to J udg e Weinstein dated Dec ember 8, 2013 (" Def endants' Dec ember 9 8 L etter" ), at 4 n.1 (empha sis added) ). And in that letter, the example of what defe ndants appar ently 10 viewed as a neu tral question--c laiming that Norman could answe r it "w ithout exposi ng himself to 11 criminal l iability " (id

. at 4 )- -w as whether Norman "wa s on the s idewalk down the bl ock [ from 642 12 Chaunce y on t h e n i ght of Davis' s arr est] and watche d the arr est" (id. (interna l quotation marks 13 omitted)). Thi s wa s h ardly a neutra l question since an aff irmative answe r would place Norman in 14 close proxi mity to the place wher e he alleg edly admitted putting the gu n and the drug s in order to 15 fra

me Davis. A witness is enti tled to claim the privileg e if his answe r could "' furnish a link in the 16 chain of evidenc e' " incriminating him. United States v. Rodrigue z, 706 F.2d 31, 36 (1983) (quoting 17 Hoffma

n v. United States, 341 U.S. 479, 486 (1951)). 18 De fe n d ants alternatively reque sted a ruling that, if the Norman Confession was 19 admitted, the newly obtained st atements from Norman to the i nvestig ator too would be ad missibl e. 20 Although defe ndants argue on appea l that the rec ording was admissible as impeachme nt evidenc e 21 under Fe d. R. Evid. 806 (" When a hear say statement

. . . has been admitted in evidenc e, the decla rant' s 22 cre dibilit y may be attacke d, and then supported, by any evidenc e that would be admissible f or those

151 purposes if the decla rant had testified as a witness.") , they did not ci t e o r ad v er t to this Rule in the 2 district court. They asked tha t the investigator' s rec ording be admitted "to even the field." (Tr. 10.) 3 The co u rt denied the reque st, finding the Confession and the new statements "e ntirely differ ent" in 4 char acte r and reliability (id. at 11), see g ener ally Fe d. R. Evid. 807 (providing a residual exception for 5 a hear say statement that is not within R u l e 8 0 3 or 804, if the statement, inter alia, "ha s equivalent 6 circ umstantial g uara ntees of trustworthiness" ). The district court permissibly found that wher eas the 7 Confession bore indicia of reliability beca use it was contra

ry to Norman' s penal interest, the proff ere d 8 self-e x culpatory

statements bore no such indicia. 9 After these ruling s, defe nse counsel sug g ested having a telephone confe renc e to ta ke 10 Norman' s deposition. The district court stated, "Set it up. I ' ll be g lad to hear him, if he wants to, under 11 oath, afte r the plaintiff puts in a case . . . say ing that he admitted that he set the plaintiff up." 12 (Tr. 11-12; see also id. at 13-14 (" I f any body wants to make him available by bring ing him

. . . befor e 13 we have our summations and the evidenc e closed, I ' ll hear him, if he g ets here

. I f y ou can arr ang e to 14 do it by two-wa y video, I ' ll take it .

. . . But I ' m not g oing to a llow him to te stify

. . . if all he' s g oing 15 to say

is, I plead the F ifth Amendment." ).) 16 We se e no indication in the re cord tha t defe ndants ever pursued any of these course s 17 to alter the ruling of unavailability or to procur e Norman' s testimony under oath. I n light of the rec ord 18 as a whole, we c annot conc lude that either the proc edure s or the ruling s as to una vailability provide 19 any

basis for r ever sal.

161 2. Corrobora tion 2 Def endants argue that even if Norman was proper ly ruled unavailable , the Confession 3 should have be en rule d inadmissible under Rule 804(b)(3) on the ground that it was not "suppor ted 4 by corr oborat i ng circ umstances that clea rly indicate[d] its trustworthiness," Fe d. R. Evid. 5 804(b)( 3)(B ). (See defe ndants' brief on appea l at 28-33.) Although that subpart of the Rule require s 6 such specia l corr oboration wher e the statement ag ainst penal interest "is offe red in a criminal case ," 7 Fe d. R. Evid. 804(b)( 3)(B ) (empha sis added) , defe ndants urg e us to apply the require ment to this civil 8 case , arguing that the conce rns for "pote ntial

. . . fabr ication" war rant such a require ment (def endants' 9 brief on appea l at 31)

. This Court has not ruled on whether the specia l corr oboration require ment is 10 applicable in civil case s. On this appea l, defe ndants argue that we should follow the decisions of the 11 Seventh Circuit in America n Automotive A cce ssories, I nc. v. Fishman, 175 F .3d 534, 541 (7th Cir. 12 1999), and the Third Circuit in I n re Flat Glass Antitrust L itigation, 385 F.3d 350, 373 (3d Cir. 2004), 13 cer

t. denied, 544 U.S. 948 (20 0 5 ), which applied the corr oboration require ment in civil case s. We 14 conclude that t h i s ar g ument is not proper ly prese rved; but even if it wer e, and even if a specia l 15 corr oboration re quirement is appr opriate f or civil ca ses, there is no basis for re versa l here

. 16 I n arguing to the distri ct court that the Norman Confession was not within the Rule 17 804(b)( 3) exception, defe ndants arg ued only that the unavailability require ment was unsatisfied; they 18 did not argue that the cour t was required to find, in this civil case , specia l corr oboration t o indicate 19 that Norman' s self-inc ulpatory statement was trustworthy

. (See, e.g ., Def endants' Dec ember 8 L etter 20 at 2 (" To the extent plaintiff argues that statements alleg edly made by Norman to Shakima J ones 21 should be admitted as statements ag ainst penal interest pursuant to [R ule] 804(b)( 3), these arg uments 22 fail as Norman is not unavailable under either 804(a) (1) or 804(a) (5)." ); id. at 2-4 (ela borating on the

171 way s in which a witness may be unavailable ).) Def endants also quoted a 200 8 cr i m i n al case that 2 quoted the "c orrobor ating circ umstances" require ment as it appea red in the version of Rule 804(b)( 3) 3 that was applicable in 2008. (De fenda nts' Dec ember 8 L etter at 2 (quoting United States v. Wex ler, 4 522 F.3d 194 (2d Cir. 2008)).) That pre- 2010 version provided that "[a] statement tending to expose 5 the decla

rant to criminal l i abil ity and offe red to exculpate the acc used is not admissible unless 6 corr oborating circ umstances clea rly indicate t h e trustworthiness of the statement." Fe d. R. Evid. 7 804(b)( 3)(B ) (1997). But Rul e 804(b)(3)( B) had been amended i n 2010. As amende d in 2010, th e 8 Rule states that a statement ag ainst the decla rant' s penal interest is admissible within the exception if 9 it "is supported by corr oborating circ umstances that clea rly indicate its trustworthiness, if it is offe red 10 in a criminal case as one that tends to expose the decla rant to criminal l i ab i l ity ." Fe d. R. Evid. 11 804(b)( 3)(B ) (2010) (empha sis added). 12 Def endants did not quote to the district c ourt the 2010 ver sion of Rule 804(b)(3) (B ), 13 which introduced the "in a criminal case " lang uag e. Davis, in his memorandum to the court in support 14 of admission of the Norman Confession, argued that the "in a criminal case " lang uag e meant that the 15 corr oborating circ umstances require ment was not applicable to ci v il c a s e s . ( Se e D a v is ' s M e mo randum 16 of L aw Concerning Plaintiff's Use of Statements by Terr el Norman at 4.) Def endants did not respond 17 to this conte ntion. They prese nted no ar g ument to the district court as to why specia l c orrobor ation 18 should also be re quired in a c ivil case. 19 The Seventh and Third Circuit case s mentioned above, which are re lied on by 20 defe ndants on this appea l, had been decide d in 1999 and 2004. They too, perf orce , dealt with the pre21 2010 version of Rule 804(b)( 3); but they at least applied the specia l corr oboration require ment in civil 22 case s. Defe ndants did not cite those ca ses to the district court.

181 I n sum, a lthough the district court perf ormed the usual balanc ing analy sis under Fe d. 2 R. Evid. 403 in considering defe ndants' contention that the Confession should be excluded as unfairly 3 prejudicia l--and "[i] n the evidentiar y context, fairne ss is closely rela ted to the reliability and 4 trustworthiness of the evidenc e," Fe lzcerek v . I NS, 75 F.3d 112, 115 (2d Cir. 1996)-- we see no 5 ind i ca t ion that the di strict court was prese nted wit h the contention now advanced by defe ndants on 6 appea l: that in order to apply the Rule 804(b)( 3) exception to the Norman Confession, it was require d 7 to find special c orrobor ation for the Confe ssion's trustworthiness. 8 Where an alleg ed err or is unprese rved, it will war rant a new trial only if it is "so serious 9 and flag rant that it g oes to the very integ rity of the trial." Marc ic v. Reinauer Transpor tation Cos., 397 10 F.3d 120, 124 (2d Cir. 2005) (interna l quotation marks omitted); see 28 U.S.C. § 2111 (appe llate court 11 is to ignor e "e rror s . . . which do not aff ect the substantial rig hts of the parties" ). We see no such err or 12 here , for e ven if the s pecia l corr oboration requirement is applicable in civil case s, there wer e in the 13 rec ord sufficie nt indicia of trustworthiness of the Confession statements to which Shakima testified. 14 First, though defe ndants compl ain that the court should not have allowed the 15 introduction of "othe r act" evidenc e with reg ard to Norman, such evidenc e was proper ly admitted to 16 show that Norman had acc ess to guns, to dr ug s, to the house at 642 Chaunce y , and to the police-- all 17 of which bore on the reliability of the Confession. See g ener ally United States v. Tubol, 191 F.3d 88, 18 95 (2d Cir. 1999) (evide nce that defe ndant possessed a g un when he was arr ested was admissible "to 19 show that he had the means to commit" arme d robber ies); United States v. Robinson, 560 F.2d 507, 20 512-13 (2d Cir. 1977) (en banc) (evide nce tha t a def endant possesse d a fire arm " some wee ks" after 21 the arme d bank robber y with which he was char g ed was admissible to show he had the "oppor tunity " 22 to commit the crime), c ert. de nied, 435 U.S. 905 (1978).

191 Fur ther, in deciding preliminary questions as to the admissibili ty of evidenc e, the trial 2 court may consider evidence , other than that subject t o a privil eg e, that itself would not nece ssarily 3 be ad m i s s i b le at trial. See Fe d. R. Evid. 104(a)

. The rec ord here included not only the testimony 4 about Norman that was admitted at the trial in the prese nt case , but also deposition testimony , and 5 testimony from the pretria l a nd trial proce eding s in D avis' s criminal ca se that had be en prese nted to 6 the district court in this case by defe ndants in support of a motion for summary judgme nt. I n all, there 7 was e vidence consistent with virtually ever y aspec t of the Norma

n Confession. 8 Acc ess to guns: At trial, Shakima testified that in the months prior to Davis' s arr est 9 she had observe d Norman with numerous g uns. He briefly stored at her house at 650 Chaunce y a bag 10 that contained two g uns; she saw one when he remove d it to take it with him and saw the other when 11 she sear ched the bag

. (See Tr . 138-43.) At 642 Chaunce y , Norman showed Shakima and Rasheem 12 his "ne w toy s," co n sisting of four g uns. (I d. at 136.) On another occa sion, afte r leaving 642 13 Chaunce y , Norman shot a g un in the air when he was ang ry with Davis for not having let him into 642 14 Chaunce y . (See id. at 145-49.) Three witnesses testified that, during an argument with his cousin 15 Rasheem, Norman p o i n t ed a g un at Rasheem. (See id. at 150 (Shakima); id. at 439-40 (Davis); 16 Transc ript of Suppression Hea ring in United States v. Davis, No. 09-CR-829 (E.D.N.Y

. Aug

. 9, 2010) 17 (" Criminal Case Hea ring ") , at 183 (Rashee m); see also id. at 180-81 (Rashee m testify ing that on more 18 than one occa sion Norman had asked him to hide g uns at 642 Chaunce y ).) And on the day befor e 19 Davis was arr ested, he and Norman tussled at 642 Chaunce y , and a g un fell out of Norman' s pants (see 20 Tr. 4 4 2 -43). At the end of that encounte r Norman told Davis, "I ' m g oing to g et y ou." (I d. at 443.) 21 There was ample evidenc e t h at No rm an possessed g uns throug h October 1, 2009, incre asing the 22 likelihood that he possessed or c ould obtain one to plant for Da vis's a rre st at 1 a.m. on Octobe r 2.

201 Acc ess to crac k: Shakima testified at trial that when Norman opened one of the duffe l 2 bag s he briefly stored at her house, he took out a packa g e of cra ck, saying he had to deliver it around 3 the corne r. (See Tr. 138-42.) Davis testified that he had o b s er v ed No rm an bag g ing cra ck in the 4 baseme nt of 642 Chaunce y . (See id. at 458.) And Shakima had testified at Davis' s criminal trial that 5 she had seen Norman with cra ck. (See Trial Transc ript in United States v . Da v i s , No

. 09-CR-829 6 (E.D.N.Y . Dec . 16, 2010), at 225-27.) 7 Acc ess to 642 Chaun cey: Shaki ma testified that Norman was often prese nt at 642 8 Chaunce y . He came in and out of J ackson' s house with a lot of differ ent fema les, and she saw J ackson 9 upset many times with Norman' s coming into the house. (See Tr. 144.) Clara J ones testified that she 10 observe d Norman coming "in and out" of 642 Chaunce y in October 2009. (Id. at 9 5

. ) Rasheem 11 testified at the suppression hear ing in Davis' s criminal case that wh en Da v i s was living at 642 12 Chaunce y , Rasheem and Norman wer e "ve ry often" stay ing there as well. (Criminal Case Hea ring 13 at 177.) And as to one occa sion when J ackson was not at home and Davis would not unlock the door 14 or g ate for Norman, both Shakima and Davis testified that Norman g ot into 642 Chaunce y by climbing 15 the canopy structure s betwee n 640 and 642 Chaunce y and enter ing throug h a window. (See 16 Tr. 144-48, 523- 25.) 17 Acc ess to the police: Velez and Lukeson had been partne rs for some four y ear s befor e 18 Davis was arr ested (see Tr. 380, 338); Calhoun was their supervisor in 2009 (see , e.g ., id. at 304); and 19 the three wer e "f riends" (De position of J avier Velez at 28-29; Deposition of Gar y Calhoun at 126-27). 20 The Norman Confession ref err ed to the policemen whom Norman contac ted to arr ang e Davis' s arr est 21 as the "T hree Amigos." (Tr. 178.) To contac t them, Norma n s ai d h e h ad tried to rea ch Velez by 22 telephone but had failed and had then tried Calhoun succe ssfully

. Velez testified that he in fac t never

211 g ave out his telephone number; C al h oun, howeve r, admitted to sometimes g iving his telephone 2 number to citizens who might be able to g ive him information. And althoug h defe ndants testified that 3 they did not know and had never heard of Norman, Rasheem testified at the s uppression hearing in 4 Davis' s criminal case that one of Norman' s nicknames in the neig hborhood was "T .I .," which meant 5 "[a] snitch" (Criminal Case Hea ring at 181-82). Evidence that Norman was widely reg arde d as a 6 snitch could proper ly be viewed as providing some cre dence for the p ro p o s i t i o n that he had cover t 7 acc ess to some policemen. 8 I n their motion for summary judgme nt in this case , defe ndants had stated as undisputed 9 fac ts, with citations to, inter alia, sworn testimony in Davis' s criminal case , that "T err ell [si c] Norman 10 was known in the neig hborhood as a ' snitch' " ( Def

endants' Statement of Undisput ed Facts P ursuant 11 to L ocal Ci vil Rule 56.1, ¶ 23); that "Ter rell [ sic] had been s een with drug s in packa g ing simi lar to 12 the drug s alleg edly found on plaintiff" (id. ¶ 27); and that "[d]uring the criminal trial, Shakima J ones 13 rec og nized the g un alleg edly found on L eroy Davis a[s] a g un previously belong ing to T err ell [si c]" 14 (id. ¶ 28). And i n t h ei r in limine motion, defe ndants had noted that "Shakima J ones testified at 15 [Davis's criminal] tria l tha t she had hear d Mr. Norman state ' I told y ou I was g oing to g et him, y eah, 16 I

g ot him already .' Cr. Trial Tra nscript, p. 241:3-5." (De fenda nts' I n L imine Memorandum at xv.) 17 I f specia l corr oboration is neede d for the admission of statements ag ainst penal interest 18 in civil actions, there was ample basis for the district court to find such corr oboration for the Norman 19 Confession here

. 20 Fi n ally , even if we wer e to conclude that the court' s admission of the Norman 21 Confession was err or, we could not co nclude that it aff ecte d defe ndants' substantial rig hts. As the 22 district court noted in de ny ing defe ndants' motion for a new trial, althoug h the jury might have been

221 sway ed by the evidenc e of the Norman Confession, that evidenc e was not likely to have had a materia l 2 eff

ect g iven the multipl e implausibil ities in defe ndants' own acc ounts of their actions and their claim 3 that Davis had be en ca rry ing a bag that contained c rac k and a gun. For example: 4 # Although Lukeson and Calhoun wer e in the front seats of the slowly patrolling car 5 al l ege d l y approa ching Davis as he walked along Chaunce y (see Tr. 348), neither 6 L

ukeson nor Calhoun saw

Davis holding a bag , see D .Ct. Op., 15 F.Supp.3d at 239. 7 # "N either Lukeson nor Calhoun, riding in the same car [as Velez], corr obo ra t ed 8 [Velez's] testimony " that t h er e was a "me tallic" sound when a "pla stic bag hit the 9 g round." I d. at 240. 10 # "[I ]t might have b ee n s een as unlikely that Velez would jump from a moving 11 vehicle to verba lly acc ost plaintiff without exp l aini ng to his partne rs what he had 12 observe d." I d. 13 # Lukeson' s excuse for taking Davis' s key s and enter ing 642 Chaunce y was his (and 14 Velez' s) testimony th a t D a vis was not car

rying any identification; but the office rs could 15 not explain awa y the fac t that Davis had such identification when he arr ived at the city 16 jail some two day s later; the theory advanced by Velez and Calhoun that someone 17 m i gh t have broug ht Davis' s identification t o him at t he precinct found no suppo rt i n 18 the pre cinct re cords r elatingto Davis' s detention there , see id. 19 # Lukeson, in sear ch of the supposedly missing identification for Davis, took the key s 20 ca rr i ed by Davis and enter ed the dark and unfamiliar house at 642 Chaunce y (see 21 Tr. 386), appar ently without telling Velez that was w here he wa s g oing (see , e.g ., id. 22 at 301, 355). Even leaving aside the lack of any constitutional justifiabilit y for that 23 unauthorized entry , such an entry was simply rec kless: Lukeson "c ould have been shot 24 by nervous homeowner s or attacke d by g u ar d d o gs . I t could have been seen as 25 improba b le th a t L u k e s o n w o uld undertake this dang erous adventur e without informing 26 his partne r, Velez, what he was doing. J urors h ad reason to doubt Lukeson' s 27 ex p l an at i o n for why he entered the home, and to doubt Velez' s claim t hat he had n o 28 id ea L u k es on had taken plaintiff' s key s and was planning to enter plaintiff' s house." 29 D.Ct. Op., 15 F.Supp.3d at 239-40 ( emphasis adde d). 30 # Although L ukeson and Calhoun testified that Lukeson was inside 642 Chaunce y for 31 only about half a minute, Shakima t es tified that she observe d ref lections sug g esting 32 people moving about with flashlig hts inside 642 Chaunce y for closer to half an hour. 33 An d Holmes, who "a ppear ed to be a reluc tant witness" with "no appar ent moti v e t o 34 lie," obse rved a n office r bring ing a

box out of 642 Chaunce y . I d. at 240.

231 # Thus, even a bsent the Norman Confession, the "jurors could have concluded that 2 defe ndants discovere d the g un and drug s in someone else' s room in 642 Chaunce y St., 3 or that defe ndants planted the evidenc e once their p ossible fishing expedition failed 4 to yield any contra band." I d. 5 I n light of the rec ord, we see no abuse of discretion in the dist ri ct court' s denial of 6 defe ndants' Rule 804(b)(3) -base d motion for a new trial.

7 B. Jury

I ssues 8 Def endants also contend that t h ey are entitled to a new trial beca use of jury -re lated 9 issues. Eac h issue was appropriate ly dealt with by the d i s t ri ct court, and none of t hese contentions 10 war

rants extended discussion.

11 1. J uror No. 8 12 Def endants contend that they are entitled to a new trial on the g round that the district 13 court "fa iled to decla re a mistrial when J uror 8, a juror whom we now know was voting in fav o r of 14 defe ndants, failed to appea r for deliberations." (De fenda nts' brief on appea l at 49; see also id. (at the 15 end of the third day of delibera tions, "Juror 8, afte r marc hing out of the jury room, was hear d by 16 defe nse counsel say ing i n sum and substance, ' I hope they never pick me ag ain, I am sick of being 17 here .' The following day J uror 8 did not appe ar f

or deliber ations.") .) 18 The rec ord shows that on the fourt h d ay o f deliberations, Dec ember 17, the district 19 court was informed that J uror 8 had called in and said he was ill and was on his way to see his doctor 20 (see Tr. 674); he informed the court that he suffe red from high blood pressure and "ha [d] been ill for 21 the past two d ay s " (i d

. at 675-76). The court exercised its discretion to "e x cuse a juror for g ood

241 cause ," Fe d. R. Civ. P. 47(c) , which includes sickness. The court was not require d to order a mistrial. 2 Following defe ndants' posttrial motion fo r a new trial on the g round that the court 3 shou l d h ave adjourne d the trial until J uror 8 could return for delibera tions, the court conducte d a 4 posttrial hear ing on Ma rch 21, 2014: 5 J uror 8 testified under oath via telephone at t h e M ar ch 21, 2014 6 hear ing. He explained that his phy sical condition "w as horrible" on the 7 morning of Dec ember 17 and that he was suffe ring from chest pains, anxiety , 8 and "some bleeding ." Hr' g Tr. 72:25-73:1. He confirm ed that he was 9 "a bsol u tely not" phy sically capa ble of continuing with deliberations. Hr' g 10 Tr. 73:7. When asked if he felt "pr essure d off the jury ," J uror 8 signa led that 11 he felt some g ener al pressure rela ted to the deliberation proce ss, but expressly 12 reje cted the sug g estion (" no, no, no") that he was pressure d off the jury

. Hr' g 13 Tr. 73:22-73:23. 14 D.Ct. Op., 15 F.Supp.3d at 251. On the ba sis of these re sponses, the cour t found that 15 while J uror 8' s alleg ed comment (" I ' m sick of being here ") indicated frustra tion 16 wit h the deliberation proce ss, it was not a "r ed flag " signa ling that he was a 17 "hold out." I t would be surprising if an active and involved j u ro r was not 18 g rowing somewhat frustra ted afte r three day s of deliberations. The comment 19 al o n e was not enoug h to trig g er a fuller investigation on the court' s par t

. 20 Second, any further investigation would have confirme d what was alre ady 21 known: that J uror 8 was sick, in t h e p rocess of obtaining medical relief , and 22 phy sically unable to con ti n u e w ith deliberations. The dismiss al was war rante d. 23 I d. We see no e rror or abuse of discre tion in thi s decision.

24 2. Ex trane ous Materia ls in the J ury Room 25 Def endants also soug ht a new trial on the g round that the jury ' s deliberations had been 26 tainted by two ty pes of extraneous materia ls that wer e broug ht into the jury room: "( 1) a copy of the 27 Wall Street J ournal containing an article sug g esting that a Nassau County police officia l was corr upt, 28 and (2) two bag s alleg edly used to test aspec ts of defe ndants' story ." D.Ct. Op., 15 F.Supp.3d

251 at 240-41. Ex tra-r ecor d materia ls used in jury deliberations are presumptively prejudicia l, but "[t]hat 2 does not

. . . mean that a new trial is require d whene ver a juror has been exposed to extrinsi c 3 information," Manley v. AmBa se Corp., 337 F.3d 237, 251 (2d Cir. 2003). When a new trial is soug ht 4 based on the introduction of extra-re cord evidenc e during jury deliberations, the trial court has broad 5 d i s cre tion to deny the motion if it finds, in light of "( 1) the nature of the information or contact at 6 issue, and (2) its probable eff ect on a hy

pothetical aver ag e jury ," id. at 252 (interna l quotation marks 7 omitted), that the impropriety has not had a prejudicia l effe ct, see , e.g ., United States v. Weiss, 752 8 F.2d 777, 783 (2d Cir.), cer t. denied, 474 U.S. 944 (1985); Konkel v. Bob Evans Fa rms I nc., 165 F.3d 9 275, 282 (4th Cir.) (" Ex periments perf ormed by juries

. . . constitute jury misconduct requiring a new 10 trial, unless no prejudice results." ), cer t denied, 528 U.S. 877 (1999). "T h e ef fe ct i nquiry proper ly 11 considers the entire r ecor d in making an objective assessment of possible pr ejudice." United States 12 v. Fa

rhane , 634 F.3d 127, 169 (2d Cir.) (interna l quotation marks omitted), cer t. denied, 132 S. Ct. 833 13 (2011). The district court her e held a hear ing to c onduct such a n inquiry

.

14 a. The Newspa per 15 At the Marc h 21 hear ing, Juror 9 testified that it had be en his ha bit to bring the Wall 16 Street J ournal to court with him, and that on Fr iday , Dec ember 13, 2013, the newspa per contained an 17 article about police misconduc t. He could not re call the a rticle' s specific contents. Juror 7 testified 18 that J uror 9 broug ht in and was waving around a newspa per article about a "dir

ty cop on L ong I sland," 19 say

ing that "if this cop could be dirty , [t he defe ndants] could be dirty " (He aring Transc ript, Marc h 21, 20 2014 (" Marc h 21 Hea ring Tr." ), at 11). J uror 7 could n ot reme mber any specific s of the article or 21 rec all which newspa per published it, but she said she had preve nted the article from being shown to

261 the other jurors beca use it wa s i rr el evant to the case . The court found that the Dec ember 13, 2013 2 edition of t he W all Street J ournal car ri ed a st ory that detailed the resig nation of t he Nassau C ounty 3 police commissioner, who had been acc used of order ing the arr est of a man for outstanding court fines 4 at the behe st of a political donor. See D.Ct. Op., 15 F.Supp.3d at 242. 5 An attorney from New York City ' s Offic e of Corporation Counsel testified that h e 6 interviewe d J uror 9 on Dec ember 17 shortly afte r deliberations ended. He sug g ested that J uror 9 may 7 have had the Dec ember 13 article with him then. Howeve r, the attorney neither saw what newspa per 8 J uror 9 wa s car

ry ing nor rea d any part of tha t paper

. 9 The c ourt found that the De cembe r 13 W all Street J ournal article described " alleg ed 10 wrong do i n g [ t h at] did not involve fabr ication of evidenc e, false testimony , or other misconduct by 11 defe ndants or Ne w York City Police Depa

rtment office rs" ; that J uror 9 had the article in court only 12 on Dec ember 13 as he testified; and that J uror 9 had no improper motive in bring ing the newspa per. 13 D.Ct. Op., 15 F.Supp.3d at 242. The court' s conclusion that this event did not war rant a new trial was 14 not an abuse of discre tion.

15 b. The B ag Demonstrations 16 Finally , there was evidenc e at the Marc h 21 Hea ring that jurors conducte d more than 17 one experiment or "de monstration" (Mar ch 21 Hea ring Tr. 15) with respe ct to defe ndants' testimony 18 that Davis had car ried a bag that held soda, chicke n, cra ck, and a g un and t h at Ve l ez fa thomed the 19 prese nce of a gun from the s ound of t he bag h i t t i n g the ground. J uror 7 testified t hat s he brought a 20 "la

rg er . . . black bag , like the kind that holds two bottles of wine," to show other jurors it was possible 21 to fit those items in one plastic bag

. (I d. at 13-14.) Two jurors testified that J uror 8 brou gh t in a

271 plastic bag , filled it with it ems similar to those Davis had alleg edly been car rying, and dropped it to 2 "de monstrate that

. . . a loud enoug h sound . . . could be made " f or Ve lez to hear Da

vis's g un hit the 3 g round from his police car (id. at 38). J uror 7 then broug ht in a can of soup to place in a bag , planning 4 to show that a metallic sound ca n be produc ed by

any thing meta llic. 5 The court stated that it wa s u n clear whether it was appropr iate to rec eive such 6 testimony

from the juror s, g iven that, with respe ct to the validity of a jury verdic t, 7 Fe dera l Rule of Evidence 606 prohibits testimony "a bout any . . . incident that 8 occur red during the jury ' s delibera tions; the effec t of any

thing on t h at j u ro r' s 9 or another juror' s vote; or any juror' s mental proce sses conce rning the verdic t 10 or indictment." 11 D.C t. Op., 15 F.Supp.3d at 244 (quoting Fe d. R. Evid. 606(b)( 1)). Howeve r, noting the R u l e 6 0 6 12 exceptions that allow "[a] juror [t o] testify about ' extraneous prejudicia l information' or whether ' an 13 outside influence was improperly broug ht to bear on any juror,' " D.Ct. Op., 15 F.Sup p . 3 d at 2 44 14 (quoting Fe d. R. Evid. 606(b)( 2)(A) and (B )), the court proce eded on the assumption that the evidenc e 15 as to the juror de monstrations was prope rly befor e it. 16 The court noted that all of the experiments or demonstrations conce rned whether a bag 17 could contain a soda, a box of chicken, bags of cra ck, and a gun, and whether a bag t h at co n t ai ns a 18 metal object makes a sound when it falls to the g round, see D.Ct. Op., 15 F.Supp.3d at 245. The court 19 found these e vents inconseque ntial: 20 [T] he "experiment" of dro p p i n g a bag with "stuff in [i t] " would not g ener ate 21 any information or data that would be novel for an aver ag e juror. A juror can 22 be expected to infer the sound, or rang e of sounds, a dropped bag with diverse 23 contents mig ht make upon hitting the g round fr om y ear s of living. 24 I d. The court conclude d that these events did not g ener ate "a seriously err oneous result" or produce 25 "a miscarr iag e of justice." I d. at 244 (interna l quotation marks omitted). In light of the record, we

281 cannot conclude that the denial of a new trial on the basis of experiments or demonstrations as to the 2 capa city

and ac oustic proper

ties of plastic bag s was an a buse of discr etion.

3 C. Other Contentions 4 Def endants also complain of evidentiar y ruling s in a ddition to the admission of Rule 5 804(b)( 3) evidenc e; and Lukeson and Calhoun contend that the court should ha ve g rante d judgme nt 6 as a matter of law dismiss ing Davis' s malicious prosec ution claims ag ainst them. These contentions 7 need not de tain us long.

8 1. Evidentiary Rulings 9 Def endants argue that the district court should have allowed them to impeach Davis' s 10 cre dibilit y with evidenc e of his prior felony convictions (see defe ndants' brief on appea l at 44-48), 11 espec ially since the court allowed Davis t o introduce evidence of "bad acts" by Norman (i d

. at 44). 12 We disag ree . As noted in Part I I .A.2. above, the evidenc e as to Norman' s conduct with reg ard to drug s 13 and g uns was rele vant to show his habitual acc ess to the ty pe of contra

band for which Davis was 14 arr ested. I n contra st, the district court found that Davis' s prior convictions, for firea rms offe nses, had 15 littl e rele vance for impeachme nt purposes. Two of them wer e very old; and the court found that, g iven 16 the ag e and nature of the convictions, thei r p robative value as to Davis' s truthfulness would be 17 "minimal," D.Ct. Op., 15 F.Supp.3d at 252-53. And the jury , in a ssessing the exis tence of probable 18 ca use for Davis' s arr est for car ry ing a g un, could be unduly influence d by the fac t that he had 19 previously been convicted of firea rms offe nses. Thus, the cour t excluded evidence of Davis's prior 20 convictions afte r a Rule "403" balanc ing analy sis. (He aring Transc ript, November 25, 2013, at 30.)

291 We see no abuse of discretion in the court' s ruling that the dan ger o f u n fair prejudice from the 2 evidenc e of D avis' s prior convic tions subst antially outweig hed the e vidence ' s probative va lue. 3 Def endants also contend that the Norman Confession should have been excluded from 4 evidenc e purs u an t t o Rule 403 as unfairly prejudicia l to defe ndants beca use it was "of such 5 questionable reliability ." (Def endants' brief on a

ppeal a t 35.) This contention is, at bottom, simply 6 an attack on the cred i b i l ity of Shakima in rec ounting the Confession. Howeve r, wher e a hear say 7 "' decla

ration comes within a cate g ory define d as an exception, the decla ration is a dmissibl e without 8 any preliminary finding of probable cre dibilit y by the judge .' " United States v. DiNome, 954 F.2d 839, 9 846 (2d Cir.) (quoting United States v. DiMaria, 727 F.2d 265, 272 (2d Cir. 1984)), cer t. denied, 506 10 U.S. 83 0 (1 9 9 2 ). C re d ibilit y questions g o to the weig ht of the evidenc e, which "is a matter to be 11 arg

ued to the trier of fac t, not a basis for reve rsal on appea l," SEC v. Razmi lovic, 738 F.3d 14, 35 (2d 12 Cir. 2013), ce rt. denied, 134 S. Ct. 1564 (2014).

13 2. The Contention that Lukeson and Calhoun Were Entitled to Judgme nt a s a Matter of 14 L aw Dismissing the Claims Aga inst Them for Malicious Prosec ution 15 Lukeson and Calhoun contend that the district court should have g rante d judgme nt as 16 a matter of law in thei r favor on Davis' s claims of malicious prosec ution, pointing out that it was 17 Velez who forwa rded Davis' s case to the prosec utors and arguing that Lukeson and Calhoun had no 18 role in the i nitiation or continuation of t he prosecution, which is an essential element of t h at claim, 19 see g ener ally Mang aniello v. City o f Ne w York, 612 F.3d 149, 161 (2d Cir. 2010). Although the 20 district court denie d their motions for judg ment as a ma tter of law , it found the issue close. 21 Given that Lukeson admitted that he had enter ed 642 Chaunce y , and that the jury could

301 cre dit the testimony of Holmes that " he saw an office r emer g e from the house with a box (plausibly 2 with evidenc e aga inst [Davis] )" and show it to another office r, D

. C t

. Op

. , 15 F.Supp.3d at 240, the 3 jury could infer that the office r who exit ed 642 Chaunce y wi t h t he box was Lukeson, and that the 4 office r to whom he showed the box was Calhoun, who, the court noted, "w as in char g e of the unit of 5 three at the scene " (Tr. 510). Fur ther, the court noted that Calhoun "w as in a position to see that one 6 of his men was g oing in and, if the plaintiff' s witness is to be believed, for a substantial leng th of time 7 sear ching around so that he was in a position to observe that [L ukeson] was ly ing w hen he sa id that 8 he just went in for a few seconds, and he was in a position to see that the total prese ntation must have 9 been inapp ro p ri at e an d wrong ." (I d.) Given that the jury could have discredited L ukeson' s 10 explanation for enter ing 642 Chaunce y , see, e.g ., D.Ct. Op., 15 F.Supp.3d at 239-40, the "jur ors could 11 have conclude d

. . . that defe ndants planted the evidenc e once their possible fishing expedition failed 12 to yield any

contra band," id. at 240. 13 The court stated that even if defe ndants wer e entitled to immunit y with respe ct to "the ir 14 own testimony " ag ainst Davis in the criminal case , Ca l h o u n "s h o uld have been awa re" during the 15 prosec ution of Davis "that his fellow office r [L ukeson] was ly ing," and the court would "not decid[e]" 16 that they wer e "immune for not bring ing to the [cri m i n al c]ourt's attention the false testimony of 17 somebody

else." (Tr. 512- 13; see id. at 697.) 18 Had all of the def endants not per sisted in their version of the basis for Davis' s arr est, 19 the criminal prosec ution of Davis would likely have come to a halt. We have not square ly dealt with 20 the question of whether trial evidenc e such as t hat prese nted in this case --whic h, taken in the light 21 most favor able to the plaintiff, with all cre dibilit y assessments made in his favor , permits the infere nce 22 of defe ndants' collusive fabr ication of the sole evidenc e g rounding the subsequent prosec ution--is

311 sufficie nt as a matter of l aw t o prove the initiation/ continuation element of a claim for malicious 2 prosec ution. We have noted , howeve r, in dealing with appea ls from g rants or denials of summary 3 judgme nt, that "a person is responsible for the natural conseque nces of h i s ac t i o n s , " e.g ., Z ahre y v. 4 Coffey , 221 F.3d 342, 357 (2d Cir. 2000) (interna l quotation marks omitted); and we ha ve said that 5 "[t]o hold that police office rs, [even if they ] lawfully arr ested a suspect, are then fre e to fabr icate false 6 confe ssions at will, would make a mocker y of the notion that Americ ans enjoy the protec tion of due 7 proce ss of the law and fundame ntal justice," Ricciuti v. N.Y.C. Transit Authority , 124 F.3d 123, 130 8 (2 d C i r. 1 997). We conclude , howeve r, that this case is not an appropr iate one in which to furt h er 9 explore the initiation/ continuation element of malicious prosec ution be cause , in lig ht of the manner 10 in which t h e m at t er wa s prese nted to and resolved by the jury , we cannot see that the challeng e by 11 L

ukeson and Calhoun, if uphe ld, would affe ct the fina l judgment. 12 The jury was asked to decide , with respe ct to eac h of the three defe ndants, Davis' s three 13 § 1983 claims: false arr est, i.e., arr est without probable cause ; ma licious pr osecution, i.e., initiating 14 or continuing a prosec ution without probab l e ca u s e an d with malice; and denial of a fair trial, i.e., 15 cre ating materia lly false evidence and sending it to the prosec utor. (See T r. 620-26.) The jury was 16 g iven a separ ate verdic t sheet with respe ct to eac h defe ndant, with eac h sheet listi ng the three § 1983 17 claims. I t was instructed that as to each cl ai m against eac h defe ndant it must find whether or not 18 Davis had proven that defe ndant' s liability

. The jury was then instructed, "if y ou find any of th[ e three 19 theories of liability ] proved" ag ainst a g iven defe ndant, "you' ll find damag es" ag ainst that defe ndant. 20 (I d. at 630 (e mphasis added) .) 21 As to eac h defe ndant, the jury found all t h ree of Davis' s § 1983 claims proven. I t 22 awa

rded compensa tory

damag es to Davis ag ainst all three de fenda nts. And, having been instructed

321 that it had discretion to awa rd punitive damag es ag ainst a defe ndant if it found that defe ndant to have 2 acte d with malice or with rec kless indiffer ence to Da v i s 's rig hts (see id. at 628), the jury awa rded 3 punitive damag es ag ainst all three de fenda nts. 4 The jury was not asked to apportion an awa rd of its damag es ag ainst a g iven defe ndant 5 among the theories of liability if it found more than one t h eo ry proven, and it did not do so. (See 6 Tr. 630, 687-90, 693-94.) Def endants do no t ar gue that it was err or to instruct the jury to awa rd 7 damag es to D avis if it f ound "a ny " of his three § 1983 theories of liability proven; nor do they arg ue 8 that it was err or not to s u b m i t m o re specific questions to the jury that might reve al its rela tive 9 evalua

tions of Davis' s theories. 10 Given the simil arities betwee n the malicious prosec ution cla i m s and the fair trial 11 claims, and the absenc e of any challeng e by defe n d an t s to the leg al sufficie ncy of the evidenc e to 12 support the verdic ts on the fair trial claims, we conclude that even if we wer e persua d ed t h at t h e 13 malicious prosec ution claims ag ainst L ukeson and Calhoun should have been dismiss ed, there would 14 be no basis on which to ove rturn the verdic ts a g ainst them for denial of a fair trial or to find that the 15 damag es aw arde d wer e impermissible with respe ct to the fa ir trial ver dicts. 16 Since a decision on the malicious-prosec ution-claim challen g es of Lukeson and 17 Calhoun would have no eff ect on the judgme nt ag ains t t h em , we d ecline to further consider those 18 challeng es.

331 CONCL USI ON

2 We have considere d all of defe ndants' rema ining contentions on this appea l and have 3 found them to be without merit. The judg ment of the district cour t is affirmed.

34