USCA1 Opinion

November 25, 1992

[NOT FOR PUBLICATION]

UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
___________________

No. 92-1877

ALBERT PONGONIS,
Plaintiff, Appellant,
v.
RONALD DESANTIS, ET AL.,
Defendants, Appellees.
__________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Lawrence P. Cohen, U.S. Magistrate Judge]
_____________________
___________________
Before
Breyer, Chief Judge,
___________
Torruella and Cyr, Circuit Judges.
______________

___________________

Albert Pongonis on brief pro se.

_______________
David C. Jenkins, Gallagher and Gallagher P.C. and Robert J.
________________ ____________________________
_________
O'Sullivan on brief for appellees.
__________

__________________
__________________

Per Curiam.
__________
action

(plus

Plaintiff-appellant filed

pendent

state

claims)

Santis, a Lawrence police officer,

the

city's

police chief.

contended that

De Santis

without probable
case was

tried

magistrate.
directed

Among

At the

against Ronald

De

the City of Lawrence, and

plaintiff

had unlawfully arrested

plaintiff

to

close of

verdict for

rights

other things,

cause and had

by consent

a civil

used excessive
a jury

presided

the evidence,

the city

and

force.

The

over by

the magistrate

police chief

on the

grounds, principally, that plaintiff had not presented either

any evidence of

a municipal policy, practice or

custom upon

which to
basis

predicate municipal civil rights

for supervisory liability of

jury

found for

found for
court.

defendant De

the police chief.

Santis.

defendants on the

liability nor any

The magistrate

equitable claims

The
also

tried to

the

Plaintiff has appealed.

Plaintiff's appellate brief contains a recitation of his

version

of the evidence.

He has failed, however, to provide

us with a copy of the trial transcript.

extent

he

is

attacking

the sufficiency

underlying the

jury verdict or the

has

appellate

forfeited

transcript.

Muniz Ramirez
_____________

F.2d 1357,

1358 (1st Cir.

issues that are

Consequently, to the

review

of

the

evidence

magistrate's rulings, he
by failing

to

order

the

v. Puerto Rico Fire Services, 757

_________________________
1985) ("When an

factually dependent yet

appellant raises

fails to provide

-2-

transcript
court, this

of

the

pertinent

circuit . . .

proceedings in

has repeatedly held

not review the allegations.").

the

district

that we will

We turn to appellant's other

arguments.
1.

Appellant argues that Magistrate

disqualified

himself from

presiding

defense counsel had requested

Magistrate

Cohen

disagree.

The

be

of Magistrate

the trial

as the

trial

indicates that,

motions were referred to

view

at

familiarity with

made sense for

Magistrate Cohen to

the

in

the

eventually
even

the

did) to

if defense

preside,

we

Moreover,
prior to

see

no

trial to

basis for
no

bias

indication that

jury and

appellant

for new

magistrate had found

was a

"friend" of

Therefore,
to

disqualification.

Magistrate Cohen presiding.

his motion

(as they

Magistrate Cohen
or

it

preside over

consented

for

1990,

the case,

a magistrate.

did ask

allegation in

Magistrate Cohen

parties

trial before

counsel

there is

unsupported
after the

event

We

Consequently, in

would have
trial

judge.

beginning in

Magistrate Cohen.

Cohen's

because

at a pre-trial conference that

designated

docket

Cohen should have

objected

Appellant's
trial, filed

against him,

defense counsel

that
is not

sufficiently specific to require recusal.

2.

Appellant contends

he was unable to prove

his case

because he was not permitted to depose and subpoena witnesses

at

government expense.

Plaintiff's

-3-

reliance on Fed. R. Cr.

P. 17(b) as authority for subpoenas

at government expense is

misplaced as Rule 17 does not apply to civil cases.

Most

courts

constitutional

have concluded

or

statutory

that

right

an
to

indigent has
have

deposition costs

provided at

case.

Odel, 890 F.2d 210 (9th Cir.

____

v.

Tedder v.
______

Kozakiewicz, 833
___________

denied,
______
286,

288-90 (6th

(1983);
1987),

McNeil
______

474 (3rd

(1988); Johnson
_______

Cir.

cert. denied, 485

_____________

831
U.S.

965

a civil

1987), cert.
_____

v. Hubbard,
_______

F.2d 1368,

or

1989); Boring
______

Cir.

1983), cert. denied,

_____________

v. Lowney,
______

Marshals Service v.
________________

government expense in

F.2d 468,

485 U.S. 991

witness

no

698 F.2d

464 U.S.
1373

917

(7th Cir.

(1988); United States

______________

Means, 741 F.2d 1053,

_____

1056-57 (8th Cir.

1984); Newson v. Harrison, 687 F.Supp. 360 (W.D. Tenn. 1988).

______
________
We need not address the issue, however, because appellant has
not indicated the relevance of the witnesses he was unable to
examine.
In his

motion for new trial,

appellant complained that

he had wanted to subpoena all the vendors at the flea

where appellant

was arrested,

but Magistrate Cohen

market
allowed

only

two or three

vendors to appear

We see no indication

on appellant's behalf.

on the district court docket

or in the

materials plaintiff has presented that he ever filed a motion

requesting witness subpoenas and explaining the
the witnesses.
the

Nor on

appeal has appellant

non-testifying vendors could have

relevance of
explained what

added.

In any event,

-4-

the

magistrate

cumulative

would

evidence.

have

had

discretion

to

exclude

On the record before us, therefore, we

find no error.
3.

Appellant challenges

appellant's motion
ever

the

to ask potential jurors

had friends or relatives employed

field.

We

have said

that when

witnesses, the trial court should

jurors whether they are
the

magistrate's denial

agents' testimony

position."
84 (1st Cir.

whether they had

in a law enforcement

government agents

have greater

by virtue

of their

United States v. Victoria-Peguero,

_____________
________________
1990), cert.

are key

ordinarily ask prospective

"inclined to
merely

of

denied, 111 S.

faith in
official

920 F.2d 77,

Ct. 2053

(1991).

_____________
Appellant, however,
he

wanted to

did not request this

know whether

any jurors

relatives or family members in .

enforcement field."

disqualification.
1037

discretion

(8th

ground for automatic

See United States v. Lawrence,

___ ______________
________
Cir.

1992)

(court

did

not

952 F.2d
abuse

its

in crediting a juror who said that his connection

cert. denied, 112 S.

____________
784,

friends,

. . any branches of the law

however, is not a

to law enforcement would

F.2d

had "close

Rather,

Having a friend or relative who is a law

enforcement officer,

1034,

question.

Ct. 1777 (1992); Depree v.

______

788-92 (11th

rejecting defendant's
law enforcement).

not influence his decision making),

Cir. 1991)

(court

Thomas, 946
______

did not

challenges to two jurors

err in

with ties to

Moreover, as appellant has not provided us

-5-

with a transcript of the voir dire and trial, we can not tell
whether

the

concerning

magistrate
potential

did

bias

in fact
in

favor

question

the

of

enforcement

law

jurors

officers

or instruct them against any such bias.

States v.
______
to

Victoria-Peguero, 920 F.2d at

________________

85 (court's failure

voir dire prospective jurors concerning

law enforcement officers

surrounding

including

are entitled

any other witness).

On

bias in favor of

was not reversible error in view of

circumstances,

government agents

See United
___ ______

to no more

the present

failed to show error.

Affirmed.
_________

-6-

instruction

that

credibility than

record, appellant

has