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2d 936
5 Fed. R. Evid. Serv. 425
him in the back seat of a police cruiser, that Tigges assaulted Cataldo, and that
Cataldo struck Tigges in self defense.
3
On appeal, plaintiff raises two issues. First, he argues that the district court
should not have prevented him from cross-examining defendant Cataldo with
respect to certain interrogatories propounded to Cataldo pursuant to
Fed.R.Civ.P. 33. Second, he asserts the district court erred in instructing the
jury on the defendants' lawful authority to arrest him. As we find merit to
neither contention, we affirm.
I.
4
15
16
We note at the outset that plaintiff was not entitled to show by extrinsic
evidence that Cataldo had been disciplined in 1971. Fed.R.Evid. 404(b);
608(b).2 Evidence of other, unrelated episodes was material only in the
impermissible sense of showing a bad character from which to infer a
propensity to commit the alleged wrong. Plaintiff's offer of the record of the
disciplinary hearing as evidence was thus properly rejected by the district court.
Further, since the past conduct was not, in and of itself, "probative of
truthfulness or untruthfulness," Fed.R.Evid. 608(b), plaintiff could not have
cross-examined Cataldo directly on the subject of the 1971 incident.
17
18
which could have been highly prejudicial to him. See Fed.R.Evid. 404(b). It
was for the trial court to weigh these factors, and we find no abuse in its
decision to exclude this line of cross-examination.3
II.
19
20 defendants could arrest the plaintiff if they observed him consume any
"The
alcoholic beverages while in or upon any street, public place, public building, or any
place to which the public has a right of access as invitees or licensees; consume
alcoholic beverages while in or upon any private land, building, or place without
consent of the owner or person in control thereof; refuse to disperse from a group of
three or more people gathered in a public place after being ordered to do so by any
officer of the Town of Burlington; behave or speak as a lewd, wanton, or lascivious
person; behave as an idle and disorderly person; or disturb the peace. That is more or
less, ladies and gentlemen, a rephrasing of the first one.
21 defendants have a lawful authority to notify the plaintiff to remove garbage,
"The
offal, or metal if they had a reasonable cause to believe that the plaintiff had caused
some such items on a street or public place; and they could arrest plaintiff if they
observed him depositing such items on a street or in a public place."
22
Plaintiff points out that under Massachusetts law a police officer does not have
authority absent a specific statute to arrest a person without a warrant for a
misdemeanor that does not involve a breach of the peace, See Commonwealth
v. Gorman, 288 Mass. 294, 192 N.E. 618 (1934). From this he would have us
rule that it was error for the district court not to instruct the jury that it must
find the element of breach of the peace present in order to determine that the
officers had authority to arrest.4
23
298, 192 N.E. at 620. Cf. Phillips v. Fadden, 125 Mass. 198, 201 (1878). In the
present case, the district court was itself required to ascertain that the various
forms of misconduct listed in its instructions constituting violations of town
ordinances or by-laws were also breaches of the peace. Plaintiff cites to no
authority indicating that the offenses detailed in the district court's instruction
would not amount to breaches of peace for purposes of effecting a valid arrest
under Massachusetts law.
24
25
Affirmed.
**
The answers were evasive and unresponsive, although, as the district court
observed, they fell short of perjury. See Bronston v. United States, 409 U.S.
352, 93 S.Ct. 595, 34 L.Ed.2d 568 (1973). Counsel, in the period before trial,
was free to follow up the unresponsive answers with more discovery by further
interrogatories, deposition or otherwise on the subject of Cataldo's possible
exposure to Informal administrative procedures. This was not done
Wiseman v. Reposa, 463 F.2d 226 (1st Cir. 1972) (per curiam), cited by
plaintiff, is not to the contrary. The district court committed reversible error in
that case by precluding cross-examination on the issue of whether plaintiff had
attempted to bribe a witness. Our citation to 3A Wigmore, Evidence 960
indicates that we were specifically addressing the issue of cross-examination
regarding corruption, as to which the general rule is "the Range of evidence that
may be elicited . . . is to be Very liberal." Id. 944 (emphasis in original). The
excluded material in the present case did not tend to show corruption or
subornation of perjury. Nor would Cataldo's alleged prior conduct be indicative
of bias or improper motive. Compare United States v. Rios Ruiz, 579 F.2d 670,
672-74 (1st Cir. 1978)
Plaintiff lodged a suitable objection to the instruction which was renewed in his
unsuccessful motion for new trial