Caparotta v. Entergy Corporation

the case was submitted on two

alternative, legally valid theories. If either theory supported by sufficient .

we are bound to affirm See v. Unit Griffin States, 46, 56-60, 466, ed 502 U.S. S.Ct.

472-74, (1991); 116 L.Ed.2d 371 United Manges, v.

States already Because found Powers’ mail fraud and wire fraud con supported by

victions are sufficient evidence theory that he schemed to obtain means,

money through inquiry false our ends

here.

VI. Cumulative ERROR final

Powers’ claim is that the cumulative

effect of multiple throughout errors his trial process

resulted violation of his due

rights. analysis Because the foregoing has error, nothing

revealed no Powers has 9,041,-

cumulate. See United States v. $

598.68, Cir.1998) (dis

cussing analysis cumulative error proceeding). We,

context of a forfeiture

therefore, deny Powers relief on his cumula process

tive due claim.

VII. ConclusioN reasons,

For the above-stated we affirm

both Powers’ conviction and sentence.

AFFIRMED.

Joseph CAPAROTTA, Jr., Plaintiff-

Appellee-Cross-Appellant, CORPORATION, Entergy

ENTERGY Ser Inc., vices, Light Louisiana Power & Company, and New Public Orleans Ser

vice, Inc., Defendants-Appellants-Cross-

Appellees.

No. 97-30659.

United States Appeals, Court of

Fifth Circuit.

Feb. Gregory Odom,

John DesRoches, Stuart E. Ladson, DesRoches, Orleans, Odom & New LA, Caparotta, Jr. (5) Supervisor’s File on Ca- and Masinter, Fal- Rosemarie Renee Williams Orleans, parotta. Inc., Services, New

cone, Entergy Defendants-Appellants-Cross-Appel- LA, for in- the box back to sent Outside counsel lees. The box arrived courier. counsel house placed in-house counsel p.m. and 4:30

around secretary’s ledge her a at box under to have the going was because she station counsel. The copied for outside documents DENNIS, DeMOSS, and PARKER Before the box discovered day, in-house counsel next Judges. Circuit ultimately determined missing and was accidentally the box had contents of PARKER, Judge: Circuit M. ROBERT original Su- morning. The incinerated (hereinafter et al. Corporation, Entergy one Caparotta was the File pervisor’s jury verdict for a “Enterg/’) appeals from by Entergy. replaced not be which could item age discrimination plaintiff hearing to deter- court held a The district Jr., com- cross-appeals, Caparotta, Joseph the fact of inadvertent in whether enough mine awarded he was not plaining possession of documents in jury’s destruction of challenging damages and pay back in Entergy admitted would be counsel for was Entergy’s discrimination finding that be Caparotta would and a new evidence remand for vacate and willful. We result of inference as a to an adverse entitled trial. dis- documents. The of the give that it would not court concluded trict BACKGROUND instruction be- inference an adverse employee of anwas Caparotta, Joseph Jr. faith, but in bad Entergy not acted En- Services, other and various Inc. the fact of inadvertent it would allow 1993. While 1968 to tergy predecessors from presented to of documents to ac- in several Entergy, Caparotta worked at eventually became he positions until countant a which was tried before The action in It while Accountant. Lead a Senior Caparotta in favor and a returned verdict termi- that he was July in position $20,500 pay. him back awarded reduction work force of a the result nated as willfully Entergy did jury found that forty-nine. age held violate ADEA. Entergy took discharge, At time of attor- hearing issues evidentiary on the off be- Caparotta laid position that Ultimately, pay. front ney’s fees and employee in rated was the lowest cause he (a) $20,500 awarded district court that his maintained group. (c) (b) $103,003 pay; in front pay; in back for his termination real age was the reason (d) $3,270.13 fees; $52,162 attorney’s and under claim age discrimination and filed denied district court in costs. The Act, Employment Age Discrimination law. a matter of judgment as motion for (ADEA). seq. et §§ 29 U.S.C. Caparotta cross- timely appeals. gath- counsel discovery, in-house During appeals. review storage box to ered documents En- to defend counsel retained with outside ANALYSIS cases, involved of which one tergy two from Entergy appeals and pleadings In addition Caparotta. inad admit cases, decision storage court’s correspondence both arguing of documents (1) vertent destruction from the received files box contained: relevant under was not such separate FOIA two with connection EEOC in highly of Evidence 401 Rule (2) Caparot- Federal portion of copy a a requests; of Evidence Rule Federal prejudicial under file; copy of the a personnel ta’s official rulings evidentiary reviews This court in the other plaintiff personnel file will reverse of discretion for abuse by Caparotta; case; (4) produced documents ruling only if district court’s it affects a sub- what was in them. But we believe and right party. stantial First Nat’l Bank common they sense great dictates had a Lustig, Louisville v. deal of information in them about this en- tire evaluation process going on Caparotta. Mr. And then in the nor- trial, Prior to the district court conducted mal discovery, course of they were to have evidentiary hearing regarding the de- produced by these Entergy. files But we struction of documents. The district court going are not you to able to show those Entergy did concluded not act in bad today. files willWe never be able to show and that faith was not entitled to you, them you to will never be able to an adverse inference instruction. consider night them. The before were we court found that the evidence was supposed get files, they those disap- relevant “it bears to some extent on peared. apparently And they longer no credibility reliability.” R. Vol. 9:46. Al- Nobody exist. really knows hap- what though considering question the Rule 403 a pened to those files. You’ll hear from call, the closer district court concluded that Entergy’s lawyer, in lawyer, house em- preclude Rule 403 did not admission of some ployee Masinter, of Ms. she was the last destruction of documents. person charge them, they disap- Id. peared custody from her and control out Entergy correctly points out that un know, her office. She doesn’t say she can’t der holding this court’s in Vick v. Texas exactly happened what to those If files. Employment Commission, ideas, she has some perhaps she doesn’t (5th Cir.1975), an adverse inference drawn know. they She believes were incinerated predicated the destruction of records is at 5:00 o’clock morning in the day on the on bad conduct the defendant. Because gotten we were to have them. There was faith, the district court found no bad Entergy a whole box of documents sup- we were argues that evidence of the inadvertent de posed us, to have produced to that docu- struction of documents not have should been ments, boxes of documents contained all presented sorts things, personnel file, his his vari- ous records from the company and forth so Entergy is correct to the extent that and all of those other already records had argues apply doctrine did not copied, they copied, somewhere and that the could not be instructed that Entergy, at only missing not a destroyed evidence was unfavorable to copy inof the Human Depart- Resource Entergy. However, apply Vick does not resources, ment at copy not a legal the issue of whether district court office, just the files gone. Nobody nonetheless admit the fact of the copy made a originals, they those are jury weigh documents for the with the gone gone forever. other evidence in the case because such evi- dence was relevant. R.Vol.lO:82-83. At point, court instructed get counsel to To evaluate whether an abuse of discretion facts of the ease. R. Vol. 10:83. occurred, helpful it is explicate how the evidence of the inadvertent destruction of Counsel then addressed the presented documents was jury. First, issue in opening statement before the objection over the by Entergy, Caparotta’s jury: counsel was allowed to discuss the destruc- A couple quick things you. I’ll tell The tion of documents during opening state- records that missing, are it’s a smoke ment: screen. Some records were inadvertently

And at point you I have to tell all appears lost. It the cleaning people threw some about you other evidence that will them out. And Mrs. Masinter will hear that directly bears upon Ms. Battiste. testify you and tell all about it. She will That is this. Ms. testify, Masinter some su- lawyers one of the representing us pervisor’s files in which we don’t know you .this case. Tell nothing there was that evidence don’t have pened to it. documents, We we are even evi- argue that can’t We before us. here the documents most of reproduce able know what was you. And I don’t dence to documents. irrelevant very except few a sugges- I But I wish did. file. R. Vol. 10:98. handwritten that it contained some tion is case-in-chief, Ms. plaintiffs Diu'ing the how You heard Battiste. of Mrs. anything for No infer documents. have those jury love to the should would a result as told the case The court party in intentional. it was against either evidence supervisor concluded court is the testimony. point The district real you her that. The decide testimony then was and the the when decision hear available it would file was Bunting Masinter Ms. and Mr. King instruction. in 1993. Mr. appropriate the made surrounding the The they even see it. didn’t relayed the circumstances testified both documents, and didn’t decisions making managers these inadvertent eight file. approximately testimony comprised That is the see it. her even 11:316-324. R. Vol. rele- (8) record. The fact it’s not pages of not relevant. It’s (sic) You at it. vant, look they even didn’t Masinter’s testi- Ms. theAt conclusion decision-makers everything that the have following gave the mony, the district court decision. to make their jury: instruction 12:441. R.Vol. heard this jury, I have of the Members during added concluded then Caparotta’s I have counsel before. evidence will- closing argument: was no intended there law matter of I sim- destroy information. Battiste, fulness to that Benita Nancy and Cassagne inten- a document is recognize this ply knowledge what real is where referred document was how it happened, sive that went dirty work you to at least I felt it was people? these where are happened by Don’t assume witnesses, situation. know this where are are the Where I do or testimony allowing this my documents? this informa- any weight on place do not 12:445. R.Vol. exposed you to be simply wanted tion. faced dilemma sympathetic areWe it I think was because the evidence do when of what court by relevant. destroyed. Be- inadvertently is R.Vol. 11:325. proof had the burden counsel arguments, during closing Finally, case, of evidence the absence this missing docu- say it referred cannot sides We unfairly for both him. harmed closing, counsel During Caparotta’s discretion ments. an abuse have been would jury know to let the stated: the district missing. were documents that certain fact there you that was show said we We that documents But of evidence collection important jury missing was revealed were it longer had nowe disappeared and testimony of one through the supervisor Battiste us. Mrs. available table. Cer- the defendants’ seated at counsel (sic) you heard Mrs. IAnd believe testimo- impact of such tainly, (sic) disap- testify that Massinter was substantial. Entergy’s counsel ny before, night be- morning peared jury confusing to Additionally, it was to us. it trying fore she which issue as to unclear it was it reproduce able to They have been never throughout points At relevant. hap- know what They don’t find it. trial, appeared parties (1) abused its discretion in finding that the relitigating issue which had probative value of the relevant evidence of been resolved the district court at an Entergy’s destruction or of its evidentiary hearing. earlier say least, To original supervisor’s file on highly extraordinary was a method of substantially outweighed by danger informing that documents were in- of unfair prejudice and determining that advertently destroyed. It would have been the evidence therefore should not be exclud- more appropriate for the district court to ed under Federal Rule of Evidence 403. have informed the that the documents This court has held that Fed.R.Evid. 403 inadvertently destroyed and that favors the admissibility of relevant found no bad faith on the and that relevant may be excluded part Entergy. because of its persuasive detrimental effect Federal Rule of provides Evidence 403 on an party’s adverse only case if proba its although relevant, may ex- tive value is substantially outweighed by the probative if cluded is substantially value danger of prejudice. United States unfair outweighed by of, danger alia, inter “un- Davis, prejudice” fair or “confusion of the issues”. “Relevant evidence inherently prejudicial; Caparotta argues that the evidence was rele- only but it is prejudice, unfair substantially vant because the might why wonder outweighing probative values, permits which certain evidence was never introduced and exclusion of relevant matter under Rule 403.” also to Entergy show that poor adher- McRae, United v. 700, States 593 F.2d 707 ence to its own policies. document retention (5th Cir.), denied, cert. 862, 444 U.S. 100 The district court found the evidence rele- 128, (1979). S.Ct. 62 L.Ed.2d 83 “Virtually vant respect credibility with and relia- all evidence is or it isn’t material. bility Entergy. of Assuming pro- that some ” prejudice must be ‘unfair.’ Dollar v. bative value did as exist to the issues in this N.C., Long Mfg. Inc., 613, (5th 561 F.2d 618 case, such value was minuscule. Contrast- Cir.1977), denied, cert. 996, 435 U.S. 98 S.Ct. ingly, danger of prejudice unfair and 1648, (1978). 56 L.Ed.2d also, 85 See 22 confusion of the issues was substantial. Charles Wright Alan Graham, & Kenneth A. Although exclusion of relevant evidence Jr., Federal Practice and § Procedure 5221 pursuant 403 Rule “is extraordinary an (1978). Consequently, Fed.R.Evid. 403 is an measure that should be sparingly,” used see extraordinary remedy to be sparingly. Campbell Keystone v. Inc., Surveys, Aerial E.g., Thevis, United v. States 616, (5th 996, 138 Cir.1998), F.3d find B), denied, Cir. Unit cert. 456 U.S. that in this case it was abuse of discretion (1982). S.Ct. 73 L.Ed.2d 1303 to allow the destruction of docu- The destruction nonproduction or of En- ments to be admitted through the testimony tergy’s original supervisor’s file Caparotta on of defense We counsel. further conclude was relevant probative and of value to the rights substantial Entergy ultimate issue in this viz. En- whether affected the admission of the evidence in tergy laid off unlawfully because manner aforementioned and tainted age lawfully because of a reduction judgment of the Accordingly, we va- in force performance and his ratings. Evi- cate judgment and remand for a new subjective dence of the state of mind of En- trial.1 tergy’s supervisory personnel who rated Ca- VACATED and REMANDED. parotta’s performance lay and decided to him off was relevant and would have great DENNIS, Judge, Circuit dissenting: probative value on the issue of his I respectfully dissent from the majority termination was based on age unlawful dis- opinion’s conclusion that the district court crimination. It highly probable 1. challenged also appeal whether the support otherwise sufficient jury’s evidence was otherwise verdict, sufficient to sustain the render, we do not and reverse but in- jury’s verdict. Because we find that the evidence stead vacate and remand new for trial. period was month the four rating 2.74 con- file on rating of his Caparotta contends documentary used. competent and tained any of his fellow higher than that 4.58 Thus, circum- issue. on this and during 1991 1992. employees Enter- tending show stantial ratings atof 1991 and considered was rele- file had notice gy, which evaluating her employee in younger one least pending issue ultimate vant In in force. reduction purposes produc- prevent proceeded litigation, evaluation, one in force reduction the same of facts probative tion, admissible him lower advised supervisors Caparotta’s Entergy did jury to infer permitting Capar- employees of several the evaluations the con- fear that the well-founded so out of be easier it would so that words, supervised otta In other its case. harm tents would court con discharges. As later justify responsible Entergy was the evidence In Texas General cluded nonproduction Broomfield for the Cir. Co., 748-49 demnity the ultimate tendency to make file had 1953), a case of circumstantial action, i.e., “[i]n consequence that was weight connection may given discrimination, probable trifles more age unlawful evidence, and we if facts in the other See the evidence.1 without would be than it spolia against the every presumption indulge Fed.R.Evid. fact that tor,” be inferred it could majority’s with the disagree respectfully change necessary to adjuster “deemed of En- value probative characterization opinion doctor’s [company] suppress the tergy’s destruction death, [that] man’s of this 758. As maj.op. at “minuscule.” file as employ course of injured man was indicates, was sub- there majority opinion case, the present Similarly, in the ment.” sides, the case on both stantial may have inference unfavorable jury on wheth- the properly was submitted the nonproduction of Entergy’s drawn layoff in force alleged reduction Entergy’s er Caparotta, on supervisor’s file original for discrimination pretext awas Caparotta of with in connection weight given have age. Entergy his basis of him on the against in jury’s tip the scales other se- Caparotta was that testified supervisors had been Caparotta finding that of favor reduc- awith layoff in connection lected be age his and not of terminated poor relative of his force because in tion in a rating comparatively low of his not because rating and performance years his 25 out of period single four month in However, Entergy documents age. employment. of performance Caparotta’s of the evaluation responsible Entergy was birthdate, The ex- without age and included supervi original of for the was information how that as to planation “danger of unfair present not file did Entergy’s ac- sor’s of head The former relevant. theAs Entergy’s case. prejudice” Caparotta which counting department leading case on the observed in his de- testified accountant as an worked sure, be “[t]o of effect employees laid ages of the position defen damaging [to was received were discussed. off not are and detriment dant], ‘prejudice but 1 scale of 4.58 on a evaluation performance ” Boska, 38 Cal. Thor synonymous.’ transferred demoted he was to 5 before 296, 302 Cal.Rptr. App.3d him a gave who supervisor, to a different of a medical probative value (holding that remaining months four for the rating of 2.74 defendant’s malpractice evaluated Caparotta was year. When he failed in whom patient aon record clinical force reduction purposes have persons authorized or agents of integrity credibility or question the not 1. I do Entergy's custody things that the to and testified access who counsel Entergy’s in-house suggest removal not without her does office her The removed from offices. file knowledge evi- the who re- the interven- permission. God or by act of persons burglar to show tends or vandal. dence as a stranger, such of a tion destroyed file were either perhaps moved to diagnose breast outweighed cancer any Entergy.” questions The of whether Enter- prejudicial effect), noted in Jamie S. gy Gorelick intentionally caused the nonproduction or al., et § Destruction (1989), 2.4 Evidence destruction of original file, (1997 § 2.4B Cum.Supp.) (“Spoliation evi- a permissible inference should be may dence very damaging, but that drawn the evidence in the file would be, because it should preju- because it is have been unfavorable to Entergy’s case, Gorelick, dicial.” (1989)). § supra, 2.4 and, so, if weight effect or of that infer- ence were all questions of facts to be decided agree that, “[bjecause majority by jury, the trier of the facts in this case. Caparotta had the proof burden of case, the absence of evidence could have general principles governing the ad unfairly harmed him. We cannot say that it missibility of evidence of the destruction or would have been an abuse of discretion for nonproduction of permis documents and the jury let the know the sible inference may be drawn therefrom fact that certain documents missing.” are well established. See Nation-Wide maj.op. at 757. But I disagree that Entergy’s Corp., Check Inc. v. Forest Hills Distribu case “unfairly prejudiced” tors, Inc., because this (1st 692 F.2d 214 Cir.1982); Gorel fact was jury revealed to the through ick, (1997 supra, § 2.4A Cum.Supp.). par A testimony Entergy’s counsel. Under ty’s intentional nonproduction or destruction circumstances, Entergy had both a right and of a relevant document is evidence from an obligation explain why it which the may infer that its contents produced supervisor’s file been unfavorable to party, on containing relevant provided evidence on party had notice that the the ultimate issue in the case. In the ab- document was relevant to pending or fore sence aof witness who saw or participated in litigation seeable destroyed time he taking actual destruction of the failed them. Nation-Wide Check the testimony of the in-house counsel that Corp., 692 F.2d at 217-18 (citing 2 Wigmore the file had been removed from her office (Chadbourn § Evidence rev.1979)); someone without her knowledge or permis- see Welsh v. States, United sion best evidence toward ex- Cir.1988); Vick v. Texas Employ plaining its failure to produce the file. The Comm’n, ment Cir. could not completely 1975); re- v. Texas General Indem Broomfield lieve itself of responsibility by presenting Co., nity 746, 201 F.2d Cir.1953); 749 competent evidence that the file had been Warner Barnes & v.Co. Kokosai Risen Ka taken or destroyed by a stranger to orga- its Kaisha, bushiki (2d Cir.), theft, nization through burglary or vandalism (2d modified, Cir.1939). 103 F.2d 430 was detrimental but unfairly not Applying principles, these it is clear that to its Furthermore, although I think there was sufficient evidence from which the the judge trial should not told jury have the jury reasonably have found that Enter- that he had “concluded as a matter of law gy’s original supervisor’s file on there was no intended willfulness to destroy was relevant documentary evidence, that En- the information,” he erred in favor of Enter- tergy had notice that the evidence was rele- gy, not Caparotta, because his remarks could vant important to an case, issue in this have jury caused the to not draw give or that Entergy intentionally caused the de- little or no weight permissible to a unfavora- struction or nonproduetion of that relevant ble inference Entergy’s from nonproduction evidence. Accordingly, the evidence was ad- the of file. missible, and jury the should have been in- Contrary majority opinion, I do not that, (1) structed if it found that original the think that “[i]t would have been appro- more supervisor’s file contained documentary evi- priate for the district court to have informed dence relevant to the any existence of jury the that the documents had been inad- that of consequence is to the determination vertently destroyed and that the (2) of action; the Entergy intentionally court found no bad faith on part the of caused the destruction or nonproduction the to be relevant evidence would the that notice (3) Entergy had notice evidence; and of that legal proceedings. or foreseeable pending relevant documentary evidence the context Thus, faith” time term “bad the proceeding legal a foreseeable to a fact or of existence signify docu- does not to failed destroyed or it to of required independent or to was not but of mind addition ments, jury could state documentary introduc- required elements the basic from the infer En- to of unfavorable or destruction have the loss been would tion in Vick this Court Analagously, tergy. documents. faith” to “without bad term the reverse argument Entergy’s agree with not I do its conclusion summarize label jury told the that, apply because did not inference spoilation there of law a matter as “concluded he had rou- destroyed its records destroy the Commission willfulness intended no regulations pre-existing tinely pursuant decision court’s information,” under inactive records disposal of governing Vick, the evidence the Commission the time that prior to original well might be records presented to had notice not should file Moreover, (3) legal proceeding. reasons a future are several There jury. require reading trial In a of Vick any merit: different is argument without conflicting with or interpreted an as inference of whether it be issue involving the of this precedent the loss prior from overruling the by the may be drawn documents, judge’s Indemnity, func- Texas General Broomfield deter- In preliminary initially ato is limited tion Broomfield is such the defendant action held mination whether adjuster in on the factual may differ insurer’s compensation minds worker’s reasonable re- company the facts doctor Whether alteration questions procuring involved. so, and, if of a by superimposition exist justify an inference report quired anof accident from “yes” drawn be answer should an inference over whether “no” answer case, ques- on- employee’s constitute particular question, them Bledsoe, 85 Barker v. sole cause fact. See was the the-job tions strain heart Gorelick, (W.D.Okla.1979); of evidence a death, F.R.D. amounted (1997 Cum. (1989), § 2.22A § 2.22 unfavorable supra, inference permitting are issues Therefore, factual if the Supp.). weight connection given be insurer to debatable, present reasonably in evidence. facts other Broomfield judge to decide function finding or conclusion require court did presented them; they must be an .inference permitting before faith” of “bad Schafer, 204 Casualty Co. v. American alteration See intentional drawn (1992); 820, 822 906, 420 S.E.2d Ga.App. Vick as To read of evidence. suppression A.2d Webb, 141 N.H. summarizing Rodriguez v. other than anything adding Mich. Cully, 349 v. (1996); Trupiano 604, 607 for the requisites conclusory label Goerlick, (1957); 747, 748 568, 84 N.W.2d loss or destruction of evidence introduction (1997 Cum.Supp.). As § 2.22A supra, infer- drawing anof and for documents out pointed Breyer Judge, Justice, then many times take ence therefrom F.2d at Corp., 692 Check Nation-Wide panel of this allowing one step of forbidden sum- useful more is label faith’ ‘bad “the decision. panel’s previous to overrule infer- adverse that an the conclusion marize the trial Accordingly, I believe actually reach it is than permissible ence introduction allowing the did err non- In the conclusion.” nonpro- Entergy’s context, the term of evidence production file be- (i) duction findings that required up sums found reasonably could have im- to an was relevant question for an responsible defendant (ii) inten- case; party issue portant suppression intentional failed destroyed or tionally file constituted (iii) knew or party evidence; and the the defendant knew notice that the

file was prior relevant evidence de-

struction nonproduction. my opinion, In

the trial telling court erred

he had “concluded aas matter of law there no intended willfulness destroy information.” this error is not ground for vacating the verdict or judg-

ment because refusal to take such action appear

does not to be inconsistent with sub- justice.

stantial Fed.R.Civ.P. 61. The error

was potentially harmful to the plaintiff-appel-

lee’s not that of the defendant-appel-

lant; therefore, it must disregarded affecting the rights substantial parties.

Id.

Gary GRAHAM, now known as Shaka

Sankofa, Petitioner-Appellant,

Gary JOHNSON, L. Director, Texas De

partment Justice, of Criminal Institu Division, tional Respondent-Appellee.

No. 99-20014.

United States Appeals, Court of

Fifth Circuit.

Feb. 1999.

As Revised Feb. notes attorneys present Masinter, one figure she a important the stand called table was at counsel’s 12:418. R.Vol. immedi- conference During bench testify. argument, coun- closing During Entergy’s object- testimony, to her ately prior sel remarked: a witness being called as to Ms. Masinter ed mean, cautionary instruction missing documents. and asked

Case Details

Case Name: Caparotta v. Entergy Corporation

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Feb 26, 1999

Citation: 168 F.3d 754

Docket Number: 97-30659

Court Abbreviation: 5th Cir.