Plаintiff-appellant Oliver C. Udemba sued the Town of Framingham and two Framingham police officers, Paul Nicoli and Ronald Brandolini, for violating his civil rights by means of false arrest and the use of excessive force. 42 U.S.C. § 1983. Following a full-dress trial, a jury returned a take-nothing verdict. Udemba appeals, claiming that the trial court committed reversible error both in denying his motion for judgment as a matter of law and in allowing the admission of certain evidence. Concluding, as we do, that Udemba failed properly to preserve the former claim and that his lamentations about the district court’s evidentiary rulings do not warrant a new trial, we affirm the judgment below.
I. BACKGROUND
We present an overview of the facts as the jury might have found them, consistent with record support. We embellish this barebones account in the course of our subsequent discussion of the appellant’s specific assignments of error.
Inclement weather dogged the Boston area during the afternoon and early evening of December 21, 1995. Despite the bad weather, the appellant did some extra driving at his wife’s request. The Udem-bas were immigrants, and Mrs. Udemba had lost her work permit (colloquially known as a “green card”) several months earlier. Since she was anxiously awaiting its replacement, she asked the appellant to check their post office box in Boston. The appellant obligingly detoured through Boston on his way home from his office in Canton.
After retrieving the mail, the appellant repaired to the family homestead in Fram-ingham. When he arrived, he gave the mail to his sоn. Mrs. Udemba became upset when she found that the mail did not contain the anticipated green card. She accused the appellant of taking it, grabbed him by the shirt, and made threatening remarks. The appellant called the police.
Officers Nicoli and Brandolini responded to the appellant’s call. The dispatcher informed them en route of complaints from neighbors about a disturbance at the Udembas’ home. The officers entered the home a town house in a row of town houses and were confronted by the appellant (whom they described as “loud,” “agitated,” and “uncooperative”). They asked him to be seated in the living room. They then proceeded into the kitchen and interviewed Mrs. Udemba. She was five months pregnant at the time, and visibly upset.
Mrs. Udemba initially told the police that her husband had punched her in the stomach (a statement that she soon retracted). She went on to complain bitterly that he was withholding her green card. The officers brought her to the living room and, in her рresence, questioned the appellant about the green card. The appellant denied his wife’s allegations. Words were exchanged. Although there is conflicting testimony regarding the substance of this exchange, the parties agree that the decibel level was high.
According to the police, the conversation ended when the appellant made a threatening move toward Officer Nicoli. When Nicoli attempted to grab him, the appellant dashed toward the door. A struggle ensued. The officers ultimately subdued the appellant and, as they attempted to handcuff him, he bit Nicoli. They then arrested him for breach of the peace and led him outside in handcuffs. At that time, they noticed that a small crowd had gathered. In due course, the officers transported the appellant to the station house and charged him with disturbing the peace, Mass. Gen. Laws ch. 272, § 53, and assault and battery on a police officer, id. eh. 265, § 13D.
Some time later, the appellant was found not guilty on the criminal chargеs. He thereafter sued, remonstrating that the officers had violated his civil rights by falsely arresting him and by using excessive *13 force. 1 The case came on for trial before a jury on August 23, 1999. At the close of the evidence, the appellant moved for judgment as a matter of law. Fed. R.Civ.P. 50(a). The lower court denied the motion, and the jury subsequently returned a verdict in favor of the defendants. The appellant eschewed the filing of any post-trial motions. He did, however, launch an appeal.
II. JUDGMENT AS A MATTER OF LAW
The appellant argues that thе district court erred in denying his motion for judgment as a matter of law on the false arrest component of his section 1983 claim because the evidence permitted only one conclusion: that the police officers lacked probable cause to arrest him for disturbing the peace. 2 We conclude that the appellant has not properly preserved this point for appellate review.
In order to challenge on appeal the denial of a motion for judgment as a matter of law, the challenger must first have presented the same claim to the district court.
Hammond v. T.J. Litle & Co.,
The Civil Rules provide that when a trial court denies a motion for judgment as a matter of law prior to the submission of a case to the jury, the moving party may renew the motion no later than ten days after the entry of judgment. Fed. R.Civ.P. 50(b). If the moving party fails so to renew the motion, he forfeits any entitlement to appellate review of the earlier denial.
See Cantellops v. Alvaro-Chapel,
To be sure, even when a party has failed to make the proper motion below, this court retains the authority to “inquire whether the record reflects an absolute dearth of evidentiary support for the jury’s verdict.”
Faigin v. Kelly,
An officer has probable cause to arrest a person for disturbing the peace if that person, in the officer’s presence, en
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gages in unreasonably disruptive conduct that annoys or disturbs one or more other individuals.
Commonwealth v. Orlando,
III. EVIDENTIARY ISSUES
The appellant raises three different, but arguably related, evidentiary issues. We deal with them sequentially, keeping in mind that a trial court enjoys considerable discretion in connection with the admission or exclusion of evidence, and that its rulings in that regard are reviewed only for abuse of that discretion.
Iacobucci v. Boulter,
A.
The appellant asseverates that the district court erred in admitting evidence of his arrest, on or about June 15, 1997, for striking his spouse. In his view, this information constituted inadmissible character evidence under Federal Rule of Evidence 404(b) and, in all events, carried so significant a potential for prejudice that the lower court should have precluded its introduction under Federal Rule of Evidence 403.
The facts are straightforward. The appellant himself set the stage for the admission of the evidеnce that he now seeks to challenge. In elaboration of his claimed damages, he told on direct examination about his humiliation when news of his arrest appeared in the local newspaper and emphasized the mental anguish that followed. Since the appellant did not testify to a closed period of emotional distress, defense counsel sought to minimize this open-ended claim by inquiring about a subsequent arrest that evoked the same sort of newspaper publicity. The district cоurt allowed this cross-examination for the limited purpose of assisting the jury in determining the extent of damages suffered for mental anguish and emotional distress. The appellant assigns error. 3
Before reaching the merits of the assigned error, we must grapple with an antecedent problem. Although the appellant objected below to this questioning, he did not mention Rule 404(b), but seems to have premised his objection on the notion that time was being wasted on the subject of the second arrest. The court overruled the objection after telling defense counsel that he could not “wallow” in the evidence. It is a bedrock rule that a party who unsuccessfully objects to the introduction
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of evidence on one ground cannot switch horses in midstream and raise an entirely new ground of objection on appeal without forfeiting the usual standard of review.
See Clausen v. Sea-3, Inc.,
[10] Federal Rule of Evidence 404(b) suggests a framework for determining the admissibility of evidence of other bad acts.
4
This framework demands a bifurcated inquiry. First, the trial court must consider whether the proffered evidence has some special relevance which enables it to shed light on a disputed issue in the case, rather than merely to show a defendant’s deplorable character or propensity for wrongdoing.
Veranda Beach Club Ltd. Partnership v. Western Sur. Co.,
In this instance, we conclude without serious question that the challenged evidence passes muster under the first prong of the Rule 404(b) inquiry. In reaching this conclusion, we reject the appellant’s concept that Rule 404(b) contains a comprehensive list of all the ways in which evidence of other bad acts may be specially relevant. Although the text of that rule enumerates some of the purposes for which such evidence may be admitted (e.g., to show “motive” or “intent”), that list is not exhaustive.
United States v. Fields,
The second part of the inquiry balancing the evidence’s probative value against its prеjudicial effect presents a closer call.
5
On the one hand, the appellant’s subsequent arrest was for allegedly striking his spouse, and testimony about that incident plainly carried a risk of extraneous prejudice. On the other hand, given the appellant’s testimony on direct examination linking his mental anguish to the newspaper reportage of his arrest, the publicity about the “second arrest” incident had obvious probative worth as to the nature and extent of the ensuing damages. In the last analysis, the very closeness of the call militates in favor of upholding the trial court’s determination. Rule 403 balancing is a quintessentially fact-sensitive enterprise, and the trial judge is in the
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best position to make such factbound assessments. Recognizing that coign of vantage, we typically give the district court wide latitude when evaluating the delicate balance that Rule 403 requires. “Only rarely and in extraordinarily compelling circumstances will we, from the vista of a cold appellate record, reverse a district сourt’s on-the-spot judgment concerning the relative weighing of probative value and unfair effect.”
Freeman v. Package Mack Co.,
That precept guides our resolution of this issue. Because the circumstances here are not shocking, or even out of the ordinary in any relevant sense, we cannot find plain error in the conclusion that any unfair prejudice failed substantially to outweigh the legitimate gain to be derived from permitting the jury to hear the “second arrest” evidence.
B.
The appellant next challenges the сross-examination of Mrs. Udemba regarding the second arrest. Once again, a question about the standard of review lies at the threshold. We recount the circumstances.
The appellant notified the trial court of his intention to call Mrs. Udemba as a witness. Since the second arrest already had surfaced, see supra Part 111(A), he sought a protective ruling, in the nature of a ruling in limine, to prevent the appellees from cross-examining Mrs. Udemba about the details of that incident. Judge Wood-lock declined to makе a definitive ruling in advance of the actual cross-examination, but indicated that he was prone to allow an inquiry into the circumstances of the second arrest. 6
The appellant then called Mrs. Udemba. Her direct examination was unremarkable. During cross-examination, defense counsel probed the matter of the second arrest largely without objection. 7 In the course of this interrogation, Mrs. Udemba described the circumstances of the second arrest. She insisted that her husband had not struck her on that occasiоn, but had only pushed her away. She likewise denied having told a law enforcement officer that her husband had choked and punched her. Nevertheless, her children had placed a 911 call to the police.
The fact that the appellant failed to interpose a contemporaneous objection to virtually all of this testimony dictates the standard of review. The district judge’s earlier comments were provisional, and the appellant, had he decided to press the point, had ample opportunity to reiterate his objection in a timely manner. When the moment came, he chose, for whatever reason, not to take up the cudgels. This may have been an oversight on the part of competent counsel in the midst of a hard-fought trial or a well-calculated stratagem. Whatever the etiology, however, the record reflects that the appellant did not interpose contemporaneous objections to most of the cross-examiner’s questions. Acсordingly, our review is for plain error.
See United States v. Noah,
Having established the standard of review, we turn now to the admissibility of the evidence. At trial, the appellees contended that examining Mrs. Udemba about the “second arrest” incident would be probative of her relationship with and her bias toward the appellant, showing the lengths to which she would go to protect her husband and obscure any scandal. The district court, in its preliminary ruling, tentatively accepted this rationale and indicated that it likely would permit inquiry for the sole purpose of illuminating the witness’s potential bias. Wе test this hypothesis.
Bias can be defined, broadly speaking, as “the relationship between a party and a witness which might lead the witness to slant, unconsciously or otherwise, his testimony in favor of or against a party.”
United States v. Abel,
In this case, the relationship between the evidence and the issue of bias is less than compelling. Indeed, under other circumstances we might consider the link too tenuous. Here, however, the jury already knew of the second arrest through the appellant’s testimony, and the trial court cautioned the jury regarding the limited applicability of this evidence.
8
Thus, the relatively low probative value attached to the evidence was offset by the relatively smаll potential for unfair prejudice.
Cf United States v. Cruz,
a
The final assignment of error concerns what transpired on December 21,1995 (the night that the appellant summoned police to the Udembas’ Framingham town house). When cross-questioning Mrs. Udemba, defense counsel inquired whether she had been struck by her husband on that occasion. She replied in the negative. When pressed, she professed not to recall having made a contrary statement during the investigation of the second arrest.
Later in the trial, defense counsel called Officer Paul O’Connell to the stand. O’Connell had been involved in effecting the second arrest and investigating the surrounding circumstances. He vouchsafed that Mrs. Udemba told him during that assignment that her husband had struсk her in late 1995 (when she was five months pregnant). The appellant asserts that the district court abused its discretion in admitting O’Connell’s testimony. We do not agree.
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The appellant’s principal thesis is that a party may not present extrinsic evidence to impeach a witness through contradictory statements on a collateral matter. This thesis is generally sound,
see United States v. Beauchamp,
We recently explained the operation of this rule in
United States v. Winchenbach,
The appellant has a fallback position. He posits that, even if Rule 613(b) constitutes the rule of decision, his wife’s statements should have been excluded because they were not squarely at odds with one another. Within wide limits, however, the determination of whether statements are in fact inconsistent for purposes of Rule 613(b) lies within the sound discretion of the district court.
United States v. Agajanian,
To say more on this point would be supererogatory. Statements need not be directly contradictory in order to be deemed inconsistent within the purview of Rule 613(b).
E.g., United States v. Denetclaw,
IY. CONCLUSION
We need go no further. For aught that appears, the appellant received a fair trial, unmarred by reversible error. Beneath the surface of his legal argumentation, his principal complaint seems to be that the jury saw things the appellees’ way. But disappointment alone, no matter how keenly felt, is not the stuff of which successful appeals are fashioned.
Affirmed.
Notes
. His complaint contained counts under both federal and state law, but for purposes of this opinion we need not differentiate among those counts. He also sued the Town of Framingham, but the district court severed that claim.
. The appellant concedes the existence of a jury question in respect to the excessive force component of his section 1983 claim.
. The appellant also asserts that the district court ignored its own mandate to confer at sidebar before exposing the jury to evidence of the newspaper coverage of the subsequent arrest. This assertion misconstrues the record. At the pretrial conference, Judge Wood-lock ruled on the appellant's in limine motion to exclude the testimony of Pamela Buford-Pomales and Paul O'Connell (two police officers who had been involved in the subsequent arrest) in respect to alleged spousal abuse. The judge concluded that “with respect to the ongoing domestic abuse,” these witnesses’ testimony could not be used “except to impeach [Mrs. Udemba],” that "no reference could be made during opening statements [to that testimony],” and that if the parties intended to introduce that testimony, they would have to approach the bench before doing so. Read in context, this "first approach the bench” directive implicated direct evidence of spousal abuse, and nothing in the record indicates that the directive encompassed сross-examination of the appellant in respect to the publicity associated with the second arrest. The appellant's assertion that the judge ignored his own mandate is, therefore, baseless.
. The text provides in pertinent part:
Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, idеntity, or absence of mistake or accident.
Fed.R.Evid. 404(b).
. This phase implicates Rule 403, which states:
Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, waste of time, or needless presentation of cumulative evidence.
Fed.R.Evid. 403.
. Judge Woodlock stated, inter alia, that he "would be likely to permit [defense counsel] some scope to inquire as to [the Udembas'] relationship.” Although he could only "rule on thesе [questions] as they arise,” his "preliminary view [was] to permit some exploration.” As a consolation, however, he told the appellant’s counsel that he was "prepared to give a curative instruction as you see fit.”
. The appellant did object to one preliminary question, but thereafter stood silent. At no time did he request or receive a continuing objection to this line of testimony.
. The court twice admonished the jury against using the testimony as propensity evidence. These admonitions are typified by the court’s instruction that the inquiry had been permitted solely “so that you could understand the nature of the relationship between the witness, Mrs. Udemba, and the plaintiff here so that you can make a discriminating determination about whether or not Mrs. Udemba was influenced, was fearful, felt some special obligation to her husband, so that you can understand the nature of the interchanges between a witness and the party to help you determine whether or not and, if so, to what degree a witness’s testimony is credible.” The appellant neither objected to this instruction nor questioned the court’s choice of phrase.