11-4081
    Fahie v. Rivera


                           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 TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

         At a stated term of the United States Court of Appeals for
    the Second Circuit, held at the Thurgood Marshall United States
    Courthouse, 40 Foley Square, in the City of New York, on the 4th
    day of February, two thousand thirteen.

    PRESENT:
              CHESTER J. STRAUB,
              PETER W. HALL,
              CHRISTOPHER F. DRONEY,
                   Circuit Judges.
    _____________________________________

    Realdalist A. Fahie,

                            Plaintiff-Appellant,

                      v.                                   11-4081

    Rivera, Officer, Badge #3501,
    Individually, Rivera, Officer,
    Badge # 3501, in her official
    capacity as a police officer of the
    City of New York, McDonald,
    Officer, 44 pct., Property Clerk
    Officer, Individually, McDonald,
    Officer, 44 pct., Property Clerk
    Officer, in his official capacity
    as a police officer of the City of
    New York, Kruch, Sgt. New York,
    Columbia Presbyterian Hospital, New
    York Presbyterian Hospital, Janet
    Rivera, Officer, Shield No. 3561,
Individually, Janet Rivera,
Officer, Shield No. 3561, and in
her official capacity as a Police
Officer, Santos Rivera, Officer,
Shield # 9402, Individually, Santos
Rivera, Officer, Shield #9402, and
in his official capacity as a
police officer, James Wannamaker,
Officer, Shield # 4584,
Individually, Krech, Officer,
Shield # 3951, Rivera, Officer,
Badge # 3402, Individually,

               Defendants-Appellees.
_____________________________________

FOR PLAINTIFF-APPELLANT:       Realdalist A. Fahie, pro se, New
                               York, N.Y.

FOR DEFENDANTS-APPELLEES:      Deborah A. Brenner, Kristin M.
                               Helmers, for Michael A. Cardozo,
                               Corporation Counsel of the City of
                               New York, New York, N.Y.


     Appeal from the judgment of the United States District Court

for the Southern District of New York (Daniels, J.).

     UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

     Plaintiff-Appellant Realdalist Fahie, proceeding pro se,

appeals from the district court’s judgment, following a jury

trial, in favor of the defendants in his action brought pursuant

to 42 U.S.C. § 1983.   We assume the parties’ familiarity with the

underlying facts, the procedural history of the case, and the

issues on appeal.




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     As an initial matter, from the arguments contained in his

brief, it appears that Fahie seeks to challenge the portion of

the district court’s September 2010 order awarding the defendants

partial summary judgment on his false arrest claim.   The argument

he now presses on appeal with respect to this claim — that his

initial detention was “tantamount to an arrest” given the amount

of force employed by the officers — was not raised in the

district court during the summary judgment proceedings.    “‘In

general we refrain from passing on issues not raised below,’”

Virgilio v. City of New York, 

, 116 (2d Cir.

2005)(quoting Westinghouse Credit Corp. v. D’Urso, 

,

103 (2d Cir. 2004)), and the arguments presented by Fahie on

appeal provide us with no basis to deviate from this general rule

in this case.   Accordingly, we affirm the district court’s

dismissal of Fahie’s false arrest claim on summary judgment.

     With respect to Fahie’s appeal from the jury verdict, the

defendants argue that his appeal should be dismissed for his

failure to comply with the requirements of Fed. R. App. P. 28.

Rule 28 provides that the argument section of the appellant’s

brief must contain the “appellant’s contentions and the reasons

for them, with citations to the authorities and parts of the

record on which the appellant relies.”   Fed. R. App. P.

28(a)(9)(A).    We have held that, while compliance with Rule 28 is

“mandatory,” Sioson v. Knights of Columbus, 

, 459 (2d


                                  3
Cir. 2002)(per curiam), the failure to comply with the Rule “does

not automatically preclude us from considering an issue,” Frank

v. United States, 

, 833 (2d Cir. 1996), vacated on

other grounds, 

 (1997); see also Taylor v. Harbour

Pointe Homeowners Ass'n, 

, 48 (2d Cir. 2012)

(collecting cases).

     Here, Fahie has failed to support his arguments relating to

his illegal search claim with citations to the trial transcript.

In addition, he has failed to provide us with the transcript of

the district court’s evidentiary rulings as required by Fed. R.

App. P. 10(b).   While these omissions arguably warrant the

dismissal of his appeal for failure to comply with the relevant

Rules, in light of his status as a pro se litigant, we

nonetheless have independently reviewed the record and considered

the merits of his arguments.

     A.   Evidentiary Rulings

     We review a district court’s decision to admit or preclude

evidence for “abuse of discretion.”   See Pescatore v. Pan Am.

World Airways, Inc., 

, 16 (2d Cir. 1996); see also Sims

v. Blot, 

, 132 (2d Cir. 2008) (articulating the abuse

of discretion standard).   A new trial is warranted if the court’s

abuse of discretion clearly prejudiced the outcome of the trial.

See Hygh v. Jacobs, 

, 365 (2d Cir. 1992).    A new

trial will be granted only if we are “convinced that the jury has


                                 4
reached a seriously erroneous result or that the verdict is a

miscarriage of justice.”    Pescatore, 97 F.3d at 17 (internal

quotation marks omitted).   In order to preserve a claim of error

with respect to a district court’s admission of evidence, the

party must timely object to the admission and state a specific

ground for the objection.    See Fed. R. Evid. 103(a)(1); see also

United States v. Birbal, 

, 465 (2d Cir. 1995).

     In his brief, Fahie argues, without elaboration, that the

district court committed “serious error” when it precluded him

from introducing a certificate of disposition in his state court

criminal proceedings while permitting the defendants to introduce

an arrest report and a “marijuana supplemental fact sheet” that

were filled out shortly after his August 2007 arrest.   With

respect to the supplemental fact sheet, Fahie has failed to

preserve any claim of error relating to the admission of that

document because, during trial, his attorney withdrew his

objection to the introduction of that document.    See Fed. R.

Evid. 103(a)(1).

     With respect to the arrest report, while Fahie properly

objected to its admission as a business record during the trial,

he has not provided us with a transcript of the district court’s

initial ruling on the admissibility of the arrest report.   Even

if he could demonstrate that the district court’s admission of

the report as a business record was an abuse of discretion,


                                  5
however, we find that any potential error was harmless.      See Fed.

R. Civ. P. 61 (district court’s errors in “admitting or excluding

evidence” subject to harmless error review).    As noted above,

during trial, Fahie’s attorney withdrew his objection to the

admission of the marijuana supplemental fact sheet, which

contained a relevant statement identical to that contained in the

arrest report — namely that Fahie had been observed by the

defendants exchanging currency for a “small object from [an]

unapprehended dealer.”    Because the jury would have been

presented with the same information regardless of whether the

arrest report was admitted, any error in the admission of that

report was harmless.     See Cameron v. City of New York, 

, 61 (2d Cir. 2010) (“An error is harmless if we can conclude

with fair assurance that the evidence did not substantially

influence the jury.” (internal quotation marks omitted)).

     Finally, to the extent Fahie argues that the district court

erroneously precluded him from introducing the certificate of

disposition, he has failed to articulate on appeal how the

certificate of disposition was relevant to the issues involved in

the trial, i.e., whether the officers had probable cause to stop

and search Fahie prior to his arrest and prosecution.     See Fed.

R. Evid. 401 (noting that evidence is relevant if it has “any

tendency to make a fact more or less probable than it would be

without the evidence” and “the fact is of consequence in


                                   6
determining the action.”).    The district court did not exceed the

bounds of its discretion when it precluded Fahie from introducing

the certificate of disposition.

     B.   Sufficiency of the Evidence

     Fahie’s arguments that the officers did not have a

“constitutional basis” to stop and search him appear to challenge

the sufficiency of the trial evidence supporting the jury’s

conclusion that he had not demonstrated that the officers acted

without probable cause.    When reviewing the sufficiency of the

evidence in support of a jury’s verdict, we “‘examine the

evidence in the light most favorable to the party in whose favor

the jury decided, drawing all reasonable inferences in the

winning party’s favor.’”     Chin v. Port Auth. of N.Y. & N.J., 

, 150-51 (2d Cir. 2012) (quoting Gronowski v. Spencer,

, 291 (2d Cir. 2005)).     We will overturn the verdict

“only if there is such a complete absence of evidence supporting

the verdict that the jury’s findings could only have been the

result of sheer surmise and conjecture, or such an overwhelming

amount of evidence in favor of the appellant that reasonable and

fair minded men could not arrive at a verdict against the

appellant.”   Gronowski, 424 F.3d at 292 (internal quotation marks

and alterations omitted).

     The central issue in the trial was whether the officers

possessed probable cause at the time they stopped and searched


                                   7
Fahie.    As we have noted, “[t]he existence of probable cause will

defeat a claim of malicious prosecution and unreasonable search

and seizure.”    Fabrikant v. French, 

, 215 (2d Cir.

2012).    Probable cause to search “is demonstrated where the

totality of circumstances indicates a ‘fair probability that

contraband or evidence of a crime will be found in a particular

place.’”    Walczyk v. Rio, 

, 156 (2d Cir. 2007)

(quoting Illinois v. Gates, 

, 238 (1983)).     Although

Fahie argues extensively that the evidence adduced at trial

demonstrated that the officers had no legal basis to stop and

search him, he has not addressed the officers’ evidence that they

observed him participate in a drug transaction shortly before the

search.    In light of the competing evidence presented to the jury

on the issue of whether the drug transaction occurred, we defer

to the jury’s determination on the issue of probable cause, which

turned on the jury’s assessment of the weight of the evidence and

the parties’ credibility.    See United States v. Payne, 

, 60 (2d. Cir. 2010) (“Assessments of witness credibility and

choices between competing inferences lie solely within the

province of the jury.   Where there are conflicts in the

testimony, we must defer to the jury’s resolution of the weight

of the evidence and the credibility of the witnesses.” (internal

citation, quotation marks, and alterations omitted)).




                                  8
     We have considered all of Fahie’s remaining arguments and

find them to be without merit.    Accordingly, we AFFIRM the

judgment of the district court.


                                 FOR THE COURT:
                                 Catherine O’Hagan Wolfe, Clerk




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