F I L E D
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      June 28, 2006

                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court




                    UNITED STATES CO URT O F APPEALS

                                 TENTH CIRCUIT



 PAM ELA SM ITH, an individual,

             Plaintiff - Appellant,
                                                         No. 04-5114
   v.
                                                  (D.C. No. 00-CV-035-C(J))
                                                         (N .D. Okla.)
 DON COCHRAN, an individual,

             Defendant - Appellee.




                            OR DER AND JUDGM ENT *


Before L UC ER O, A ND ER SO N, and TYM KOVICH, Circuit Judges.

        Pamela Smith, an Oklahoma state prisoner, filed suit against Don Cochran,

an employee of the Oklahoma D epartment of Public Safety (“ODPS”), alleging

that Cochran repeatedly raped her while she was employed at an ODPS facility as




        *
        This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
part of a work-release program. On submission of the case, a verdict was

returned by the jury in favor of Cochran. Smith appeals, claiming that numerous

evidentiary and procedural rulings of the district court were erroneous and

affected the outcome of her trial. Because we conclude that none of the

challenged rulings rise to the level of legal error or affected the outcome of the

trial, we exercise jurisdiction under 28 U.S.C. § 1291 and AFFIRM .

                                          I

      In September 1997, Smith was relocated to a lower security correctional

facility, the Tulsa Community Correctional Center (the “Tulsa Correctional

Center”), a facility that has since been closed by the Oklahoma D epartment of

Corrections (“ODOC”). Inmates of the Tulsa Correctional Center were required

to participate in a work-release program. Under this program, they performed

jobs within the Tulsa community during the day and returned to the Tulsa

Correctional Center each night. At all other times they were confined within the

Tulsa Correctional Center.

      From approximately November 1997 until M ay 1998, Smith was assigned

to work as a janitor at two driver’s license examination centers operated by

ODPS: one located in northern Tulsa, Oklahoma (known as the “North Tulsa”

facility) and one located in Jenks, Oklahoma (known as the “Jenks” facility).

M any of Smith’s family and friends lived near the North Tulsa facility, and she

preferred to work primarily at that location. It was w hile w orking at the North

                                          -2-
Tulsa facility that Smith met defendant Don Cochran, a driver’s license examiner

employed by ODPS.

      Smith and Cochran have divergent recollections of events following their

meeting and introduction. Smith’s recollection is as follows: Cochran

approached her on her first day of work at the North Tulsa facility and

comm ented on the size of her breasts. Later that week, Cochran took advantage

of a work-release program rule violation he observed Smith comm itting by

essentially black-mailing her into revealing her “body parts.” Following this

incident, a pattern developed whereby Cochran turned a blind eye to her rule

violations – which were numerous, including family visits, personal telephone

use, and leaving the North Tulsa facility to go to a local store – in return for an

increasing level of sexual activity with Smith, first oral sex and then sexual

intercourse. During their final sexual encounter, Cochran used a salt-shaker to

penetrate her. Smith then discontinued sexual relations w ith Cochran. Her sole

attempt to inform others of Cochran’s sexual demands was laughingly dismissed

by other ODPS employees, although both she and other ODPS employees

observed Cochran engage in sexual relations with other w omen in the very

storage room where her sexual encounters with Cochran occurred. Cochran

denies all of Smith’s claims.

      In August 1998, the Tulsa Correctional Center was shut down and Smith

was transferred to the Eddie W arrior Correctional Facility (the “EW Correctional

                                         -3-
Facility”), where she immediately disclosed Cochran’s sexually abusive behavior

to ODOC personnel. ODOC promptly provided Smith with medical and

psychological treatment, and also initiated a formal investigation into Cochran’s

activities at the North Tulsa facility. Cochran was notified that as part of the

investigation he must submit to a polygraph examination. As the date of the

polygraph exam approached, Cochran resigned from ODPS because of a “serious

medical condition,” expressly denying that his actions were related to Smith’s

claims or the investigation. 2 He never completed a polygraph exam, and no

further action was required of him after his resignation was accepted. In

December 1998, ODOC closed the investigation into Smith’s allegations.

      Smith filed suit against Cochran in federal district court under 42 U.S.C.

§ 1983, claiming violations of her Fourth, Fifth, Eighth, and Fourteenth

Amendment rights. She also asserted state tort law claims for sexual assault and

battery and intentional infliction of emotional distress. Cochran moved for

summary judgment on the grounds that he was entitled to qualified immunity.

The district court denied this motion, and we affirmed. Smith v. Cochran, 

(10th Cir. 2003).

      At trial, the only issue before the jury was whether Cochran and Smith had




      2
       At trial, Cochran admitted that he refused to take a polygraph
examination on the advice of his counsel.

                                         -4-
engaged in sexual relations. 3 Smith testified that Cochran repeatedly raped her.

Cochran’s defense was that Smith was a con artist trying to shake him down for

money, and he identified numerous inconsistences between Smith’s direct

testimony, her responses during cross examination, and her deposition answers.

After a six day trial, the jury deliberated for approximately one hour before

reaching a verdict in favor of Cochran. Smith then filed a motion for a new trial

under Federal Rule of Civil Procedure 59(a), or in the alternative, a motion for

judgment notwithstanding the verdict, which was denied. Smith appeals,

challenging eight district court evidentiary and procedural rulings in Cochran’s

favor, and the denial of her motion for a new trial.

                                         II

      Smith appeals the district court’s evidentiary rulings admitting into

evidence (1) her prior statement that “you can take some checks from the bottom

of [elderly peoples’] checkbook[s] and they won’t know it’s missing for a while,”

(2) Cochran’s testimony that he was a good Christian and references by other

witnesses to Cochran’s Christianity, (3) transcripts and reports prepared as part of

ODPS’s internal investigation used to impeach Smith’s witnesses that Cochran



      3
         In a prior opinion, we held that because Smith was a state prisoner in the
custody of ODPS employees while she was working at the ODPS facilities any
sexual activity between her and any ODPS employee is deemed non-consensual as
a matter of law. See 

. Thus, Cochran was liable if he had
engaged in any sexual activity with Smith, regardless of whether she actually
consented to performing sexual acts with him.

                                         -5-
did not provide to her prior to trial, and (4) statements by other witnesses as to

her sexual promiscuity while working at ODPS’ North Tulsa facility. Smith also

objects to the district court’s (5) failure to disturb an implied racial statement

made by Cochran’s counsel during closing argument, and (6) ruling prohibiting

Smith from arguing during closing argument that Cochran was not credible

because he quit his job to avoid taking a polygraph examination.

      W e review a district court’s evidentiary decisions for abuse of discretion,

and “will not disturb the determination absent a distinct showing the decision was

based on a clearly erroneous finding of fact or an erroneous conclusion of law or

manifests a clear error of judgment.” Cartier v. Jackson, 

, 1048

(10th Cir. 1995). Even if a litigant proves that the district court abused its

discretion in admitting or prohibiting certain evidence, the litigant must also

prove that such error affected the litigant’s substantial rights. Fed. R. Civ. P. 61.

An error affects a party’s substantial rights if it altered the outcome of the

proceedings or produced a contrary result. Grace United M ethodist Church v.

City of Cheyenne, 

, 802-803 (10th Cir. 2005).

                                           A

      Smith claims that the district court erred by improperly admitting as

character evidence under Federal Rule of Evidence 404(b) Smith’s statement to an

ODPS employee that “you can take some checks from the bottom of their [elderly

people’s] checkbook and they won’t know it’s missing for a while.” Federal Rule

                                          -6-
of Evidence 404(a) states that “[e]vidence of a person’s character or a trait of

character is not admissible for the purpose of proving an action in conformity

therewith on a particular occasion . . . .” An exception to this general rule is

found in Rule 404(b), which provides that evidence of a litigant’s prior “crimes,

wrongs or acts” may be admissible to show that litigant’s “motive, intent,

preparation, plan, knowledge, identity, or absence of mistake or accident.”

      Because Smith raises this Rule 404(b) argument for the first time on appeal

we review admission of this evidence for plain error. 4 Fed. R. Evid. 103(a)(1)

(providing that “nothing in this rule precludes taking notice of plain errors

affecting substantial rights although they were not brought to the attention of the

court); Goebel v. Denver & Rio Grande W . R.R. Co., 

, 1088 n.2

(10th Cir. 2000). “To constitute plain error, the district court’s mistake must have

been both obvious and substantial.” C artier v. Jackson, 

, 1050 (10th

Cir. 1995). In civil cases, the plain error exception is limited to errors that

“seriously affect the fairness, integrity, or public reputation of judicial




      4
         Below, Smith challenged this evidence on the grounds that its admission
was precluded by the district court’s in limine order excluding evidence of
“Plaintiff’s past arrest record for those crimes that are beyond the 10 year
limitation of Federal Rule of Evidence 609(b).” Federal Rule of Evidence 609(b)
prohibits admission of evidence concerning a w itness’s prior conviction for a
crime “if a period of more than ten years has elapsed since the date of the
conviction or of the release of the witness from the confinement imposed,
whichever is later.” This argument was rejected by the district court, and Smith
does not raise it on appeal.

                                          -7-
proceedings.” M cEwan v. City of N orman, Okla., 

, 1545 (10th Cir.

1991). Cochran’s theory of the case was that Smith was a con artist attempting to

steal money from the defendants. Admission of this evidence for that limited

purpose – to show Smith believed she had the present ability to con people – was

clearly a proper application of R ule 404(b).



                                         B

      W e next consider whether the district court comm itted error by allowing

Cochran to introduce evidence that he was a “good Christian” in claimed violation

of Federal Rule of Evidence 610 and improperly prohibiting Smith from

introducing rebuttal evidence disputing Cochran’s alleged Christianity and good

character.

      Federal Rule of Evidence 610 provides that “[e]vidence of the beliefs or

opinions of a witness on matters of religion is not admissible for the purpose of

showing that by reason of their nature the witness’ credibility is impaired or

enhanced.” Tw o pieces of evidence, Smith contends, should clearly have been

inadmissible under this rule: Cochran’s testimony that he visited Smith’s sister in

the hospital because he “got closer to G od” following the death of his wife’s

stepfather, and testimony by other w itnesses that they became acquainted with

Cochran at various religious events. Because Smith did not object to introduction

of this evidence below, we review admission of this evidence for plain error. See

                                         -8-
M 

.

         Smith insists that introduction of this evidence was prejudicial, but no

explanation has been offered by Smith as to how this evidence either enhanced

Cochran’s credibility or affected the fairness, integrity, or public reputation of the

proceedings. Because of that failure, admission of the evidence was not plain

error.

         Had she been permitted to rebut evidence of Cochran’s Christianity and

good character by questioning him about his prior marriages and introducing

evidence that his wife was currently married when they met, Smith explains, the

claimed prejudice would have been neutralized. Authority for conducting these

inquiries exists, Smith submits, under Federal Rule of Evidence 608(b), which

provides that “[s]pecific instances of conduct of a witness for the purposes of

attacking or supporting the witness’ character for truthfulness, other than

conviction of a crime as provided in Rule 609, may not be proved by extrinsic

evidence. They may, however, in the discretion of the court, if probative of

truthfulness or untruthfulness, be inquired into on cross-examination of the

witness . . . .”   W hen Smith attempted to cross-examine Cochran on these topics,

the district court found that neither Cochran’s prior marriages nor the marital

status of his wife w hen he and his wife met was relevant to w hether he w as a

good person or his veracity. Additionally, evidence that he had been married

before had no relevance to his current status as a Christian, the court determined,

                                           -9-
because Cochran converted to Christianity after marrying his current wife. Given

the tenuous connection between a person’s prior marriages and their tendency to

be truthful on the witness stand, the district court’s decision to exclude this

evidence is not an abuse of its discretion.

                                          C

      Our review now turns to Smith’s claim that she was unfairly prejudiced

when the district court admitted various transcripts of interview s and reports

prepared as part of ODPS’s internal investigation for the purpose of impeaching

Smith’s witnesses.

      First, Smith contends that Cochran’s failure to produce these documents

during discovery, as she requested, prohibits Cochran from utilizing them during

the trial for impeachment purposes. No evidence has been presented by Smith

that she actually requested the evidence at issue. Accordingly, we address

whether Cochran was required to produce these documents under the Federal

Rules of Civil Procedure 26(a)(1)(B) in order to use them for impeachment

purposes during trial. Rule 26(a)(1)(B) requires that a litigant produce “a copy

of, or a description by category and location of, all documents, data compilations,

and tangible things that are in the possession, custody, or control of the party and

that the disclosing party may use to support its claims or defenses, unless solely

for impeachment.” In this case, the district court correctly found that Cochran

used the transcripts solely for impeachment purposes, and thus was not required

                                         -10-
to produce these documents under the plain language of Rule 26(a)(1)(B).

      In this same context, Smith posits that she is entitled to relief from the jury

verdict in Cochran’s favor under Federal Rule of Civil Procedure 60(b)(3)

because Cochran knowingly concealed the ODPS documents during the

proceedings. Rule 60(b)(3) provides that a district court may relieve a party from

a final judgment based on the “fraud . . . misrepresentation, or other misconduct

of an adverse party.” “A party moving for relief pursuant to Rule 60(b)(3) must

establish the alleged misconduct by clear and convincing evidence . . . . This can

only [be accomplished] by showing that the [opposing party] acted with an intent

to deceive or defraud the court, by means of a deliberately planned and carefully

executed scheme.” Yapp v. Excell Corp., 

, 1231 (10th Cir. 1999)

(internal quotations and citations omitted). Because the only evidence that

Cochran concealed these transcripts are Smith’s conclusory allegations to that

effect, Smith has failed to prove by clear and convincing evidence that Cochran

intended to deceive or defraud the court by know ingly concealing these

documents.

                                          D

      Yet another prejudicial error occurred, Smith asserts, when the district

court permitted Cochran to present evidence regarding her demeanor w hile

working at DPS. Effectively conceding that she failed to timely object to

admission of this evidence at trial – Smith notes in her brief that she first raised

                                         -11-
this objection in her motion for a new trial – we review for plain error. Dodoo v.

Seagate Technology, Inc., 

, 529 (10th Cir. 2000) (internal citation

omitted). In this case, Smith brought a state law claim for intentional infliction of

emotional distress, sought damages in her § 1983 claim for “severe emotional

distress,” and testified that she was generally shy around men. Cochran

introduced evidence that after the alleged rapes occurred Smith rubbed her breasts

against a co-worker and danced while singing a song. This evidence, the district

court concluded, was relevant to whether Smith suffered severe emotional

distress and rebutted Smith’s trial testimony regarding her attitude toward men.

W e take the district court’s position and conclude that it was not plain error to

admit this evidence.

                                          E

      The series of errors continued, Smith claims, when the trial court failed to

disturb an implicit racial statement made by Cochran’s Caucasian counsel during

closing to the all-white jury about Smith, who is African American.

      To the extent that Smith is contesting that existence of an all-white jury

violated her rights, Smith has failed to allege a cognizable claim under the

Fourteenth Amendment. Brown v. Crouse, 

, 309 (10th Cir. 1970)

(holding that the district court did not err in allowing an African-American

plaintiff’s claim to be tried to an all-white jury, even where African-American

jurors had been removed pursuant to peremptory challenges). And Smith has not

                                         -12-
asserted a claim under Batson v. Kentucky, 

(1986), that her rights

were violated because counsel for Cochran challenged African-American jurors

based on their race. Thus, we conclude that her general objection to a jury

comprised entirely of Caucasians is meritless.

      This brings us to Smith’s claim that Cochran’s counsel made an implicit

racial statement during closing that invited the jury to enter “a racist verdict.” A t

trial, Cochran’s counsel stated: “Look at him. Look at her. Then decide who is

lying.” Because Smith did not object to this statement during trial, we review for

plain error. See 

. W e do “not lightly infer that [counsel]

intends an ambiguous remark to have its most damaging meaning or that a jury,

sitting through lengthy exhortation, will draw that meaning from the plethora of

less damaging interpretation.” Donnelly v. Dechristoforo, 

, 646-47

(1974). In its order denying Smith’s motion for a new trial, the district court

concluded that “any reasonable person sitting through the trial would have taken

the statement as one referencing the parties divergent positions in society and the

resulting credibility gap between them and not the meaning advanced by Plaintiff

. . . .” Smith’s own counsel at trial interpreted the statement in a similar manner.

Taking into consideration the C ourt’s admonition, we hold that the district court

did not commit plain error in concluding the statement w as not racially motivated.

.

                                           F

                                          -13-
      Finally, Smith maintains that the district court abused its discretion by

prohibiting her from arguing, at closing, that Cochran lacked credibility because

he resigned to avoid taking a polygraph examination.

      In Palmer v. C ity of M onticello, 

, 1506 (10th Cir. 1994), w e

held that “[i]f it is relevant that the polygraph examination was performed, as a

fact in and of itself, regardless of what the results were, then that fact may be

admissible as an operative fact.” However, recognizing the substantial discretion

generally afforded trial courts to make evidentiary rulings, we concluded that “[a]

trial court will rarely abuse its discretion by refusing to admit [polygraph]

evidence, even for [such] a limited purpose and under limited conditions” if it

determines the evidence is unduly prejudicial or “the manner of the introduction

of the evidence would allow or encourage the jury to draw improper inference[]”

that the person is lying because they refused to submit to a polygraph

examination. 

omitted).

      Assuredly, permission was initially given to Smith’s counsel to cross-

examine Cochran concerning his refusal to take a polygraph examination.

Nevertheless, exercising its discretion, the trial court found that undue prejudice

would result from allowing Smith to argue during closing argument that Cochran

resigned to avoid taking the polygraph examination, and that the jury would be

encouraged to draw the improper inference that, because he did not take the

polygraph examination, Cochran raped Smith.

                                         -14-
         No case law has been cited by Smith, or located by this court, holding that

a district court’s refusal to permit such a line of argument amounts to error. Nor

does she dispute the district court’s finding that admitting the evidence of

Cochran’s refusal to take the polygraph examination would lead the jury to draw

an improper inference. 5 As such, the district court did not abuse its discretion. 6

                                           III

         In addition to challenging the district court’s evidentiary decisions, Smith

raises two alleged procedural errors, namely the trial court’s failure to enter a

pretrial order and the trial court’s failure to order the jury to continue deliberating

before rendering a verdict in favor of Cochran. These challenges are reviewed for

an abuse of discretion. See Thweatt v. Ontko, 

, 1470 (10th Cir.

1987).

         In support of the first contention, Smith argues Federal Rule of Civil


         5
         W e are not persuaded by Smith’s citations to United States v. Smith, 

, 653 (10th Cir. 1980), and United States v. Foppe, 

, 1451
(10th Cir. 1993). These cases address whether a district court’s failure to comply
with Federal Rule of Criminal Procedure 30, which requires the trial court to
notify the parties of its intended rulings on requested jury instructions prior to the
parties’ closing arguments, is reversible error. No such error is alleged in this
case.
         6
         The district court apparently misread our decision Palmer for the
proposition that a party is never able to present evidence that an opposing party
has refused to submit to a polygraph examination. Palmer imposes no such
categorical prohibition. Nevertheless, because the district court did not abuse its
discretion by finding that the evidence was both unduly prejudicial and would
lead the jury to draw an improper inference, the evidence was properly excluded
under Palmer. H ence, Smith was not prejudiced by the district court’s error.

                                           -15-
Procedure 16 requires a district court to sign and enter a pretrial order, and its

failure to do so here was prejudicial. Rule 16(e) provides that “[a]fter any

[pretrial conference] an order shall be entered reciting the action taken.” Neither

party has identified, and we have not found, any case directly addressing whether

a district court commits error by failing to formally enter a pretrial order. In

Jones v. Union Indem. Ass’n of Bloomington, 

, 29 (10th Cir. 1961),

we noted that the district court had failed to enter a pretrial order, but, because

that issue was not before us, we did not consider w hether this failure was error.

      W e again need not resolve whether failure to formally enter an order is

error because Smith has failed to prove she suffered any prejudice. See Fed. R.

Evid. 61. Two pretrial orders w ere submitted by the parties for the trial court’s

review – an initial and revised version – and both parties were questioned by the

trial judge to ensure that they did not object to the content of the orders. Smith

proclaims that formal entry of a pretrial order would have “obviated some of the

harpoons that were thrown into the trial.” Smith has not cited, however, any

instance whereby Cochran attempted to introduce evidence not identified in the

parties’ final revised pretrial order. To the contrary, the record reveals that it was

Smith who sought to admit previously undisclosed evidence in violation of the

pretrial order. Given the situation presented, any error resulting from the failure

to enter a formal pretrial order w as not prejudicial to Smith.

      As for Smith’s second argument, she claims that she was unfairly

                                          -16-
prejudiced by the length of the jury deliberations of approximately one hour

because the jury could not have carefully considered the evidence and applied the

law in that time period. No case is identified by Smith that dictates a jury must

deliberate for a specific amount of time prior to reaching a verdict, and we have

never imposed such an obligation. See Phillips v. Calhoun, 

, 953-54

(10th Cir. 1992) (holding that a party must support its argument with legal

authority). The district court found that “a conscientious jury would not require

an extended time” to decide this case, and it would have been improper to order

the jury to further deliberate. Clearly, this ruling is not an abuse of discretion.

                                           IV

      Finally, Smith tells us that the district court erred by denying her motion

for a new trial. W e review a district court’s denial of a motion for a new trial for

an abuse of discretion. Smith v. Ingersoll-Rand Co., 

, 1241 (10th

Cir. 2000). Rule 59(a) of the Federal Rules of Civil Procedure provides a “new

trial may be granted to all or any of the parites on all or part of the issues . . . in

an action in which there has been a trial by jury . . . .” Such a motion is

“generally not regarded with favor, and is granted only with great caution.”

United States v. Perea, 

, 536 (10th Cir. 1972). The party seeking to

set aside a jury verdict must show either trial error which constitutes prejudicial

error or that the verdict was not based on substantial evidence. W hite v. Conoco,

Inc., 

, 1443 (10th Cir. 1983). Smith has failed to demonstrate

                                          -17-
either.

          To the extent that Smith is asserting the verdict is against the weight of the

evidence, we disagree. W hether a verdict is against the weight of the evidence is

ordinarily a question of fact, not of law. Tafoya v. Sears, Roebuck & Co., 

, 1342 (10th Cir. 1989). “In reviewing a district court’s denial of a

motion for judgment n.o.v., we may find error only when the evidence points but

one way and is susceptible to no reasonable inferences sustaining the position of

the party against whom the motion is made.” M cAlester v. United Air Lines, Inc.,

, 1260 (10th Cir. 1988). For failure of explanation as to why the

jury’s verdict was against the weight of the evidence, we rule that the district

court did not abuse its discretion in rejecting Smith’s challenge on this issue. 7

          Smith also argues that she is entitled to a new trial based upon the

cumulative effect of the errors we addressed above. A party moving for a new

trial based upon an error of law must show not only that error occurred, but that

the error affected the substantial rights of the parties. Fed. R. Civ. P. 61. Based

on our holdings above, none of the alleged errors affected Smith’s substantial




          7
          Because we hold that Smith has failed to prove that the jury verdict is
against the weight of the evidence, we accordingly reject Smith’s challenge the
district court’s denial of her motion for judgment notwithstanding the verdict,
which requires her to satisfy the higher standard of showing that “the evidence
viewed in the light most favorable to the nonmoving party points but one way and
is susceptible to no reasonable inferences supporting the party opposing the
motion.” Sanjaun v. IBP, Inc., 

, 1293 (10th Cir. 2002).

                                            -18-
rights. The only potential error we have identified is the district court’s failure to

enter a pretrial order, and we conclude that error was not prejudicial. Cumulative

error analysis thus does not apply. Castro v. W ard, 

, 832 (10th Cir.

1998). Zero plus zero equals zero.

                                          VI

      B ecause w e conclude that none of the alleged errors are meritorious, we

A FFIR M .

                                                Entered for the Court



                                                Carlos F. Lucero
                                                Circuit Judge




                                         -19-