[NOT FOR PUBLICATION–NOT TO BE CITED AS PRECEDENT]

         United States Court of Appeals
                       For the First Circuit


No. 00-2027

                         FERNANDO MARCELLA,

                       Plaintiff, Appellant,

                                 v.

                       KEVIN MURPHY, ET AL.,

                       Defendants, Appellees.


         APPEAL FROM THE UNITED STATES DISTRICT COURT

                  FOR THE DISTRICT OF RHODE ISLAND

              [Hon. Mary M. Lisi, U.S. District Judge]


                               Before

                     Selya, Circuit Judge,
          Campbell and Stahl, Senior Circuit Judges.




    Fernando Marcella on brief pro se.
    Marc DeSisto on brief for appellees.




                           June 12, 2001
           Per Curiam.       After carefully reviewing the record

and briefs on appeal, we affirm the decision below.

           We are satisfied that the evidence showing the

prior    disposition    of    the    two   criminal    charges     against

Marcella was immaterial and was properly excluded by the

district court.        The disposition sought to be placed in

evidence was the dismissal of the criminal assault charge

coupled with the one-year filing under R.I.G.L. § 12-10-12

of the charge for resisting arrest.            This disposition must

be viewed in light of Marcella’s past illness and the likely

interest of those concerned to effectuate a non-criminal

disposition consistent with his future improvement.                 It is

impossible rationally to infer from this pragmatic plea

arrangement that the prosecution was or was not conceding

anything as to the underlying truth of the assault charge.

Dismissal of that charge cannot be viewed in isolation from

the continued retention for possible prosecution within one

year of the resisting arrest charge.           We note that defendant

Murphy   testified     in    the    instant   case    that   he   arrested

Marcella because of Marcella’s alleged assault upon him.

Had the resisting arrest charge been prosecuted during the

one-year following the disposition, the government would

presumably have expected to seek to prove the assault as
constituting a lawful basis for the arrest.                          Hence, we

cannot    say     that   admission       of     evidence   of    this    prior

disposition of the criminal charges would “make ... the

existence    of    any   fact     that     is    of   consequence       to   the

determination of the action more probable or less probable

than it would be without the evidence.”                Fed. R. Evid. 401.

We hold that the district court acted properly within its

broad    discretion      to    exclude     the    evidence      in   question.

Faigin v. Kelly, 

, 79-80 (1st Cir. 1999).

            Affirmed.         Loc. R. 27(c).




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