13‐1369 ‐cv Henderson v. City of New York

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURTʹS LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION ʺSUMMARY ORDERʺ). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 1st day of July, two thousand fourteen.

PRESENT: GUIDO CALABRESI, DENNY CHIN, RAYMOND J. LOHIER, JR., Circuit Judges.

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HOWARD L. HENDERSON, Plaintiff‐Appellant,

v. 13‐1369‐cv

CITY OF NEW YORK, POLICE DEPARTMENT CITY OF NEW YORK, POLICE COMMISSIONER RAYMOND W. KELLY, NELDRA M. ZEIGLER, Deputy Commissioner, Office of Equal Employment Opportunity, CHARLES V. CAMPISI, Chief of the Internal Affairs Bureau, DEPUTY CHIEF RAYMOND F. KING, Internal Affairs Bureau, DEPUTY INSPECTOR JAMES DUFFY, Field Services Division, CAPTAIN GEORGE D. OʹBRIEN, Internal Affairs Bureau Group 27, CAPTAIN JULIO C. ORDONEZ, JR., Internal Affairs Bureau Group 27, LIEUTENANT BRESTER CREECH, Internal Affairs Bureau Group 27, LIEUTENANT RICHARD M. LEDDA, Internal Affairs Bureau Group 27, SERGEANT LES CATALANO, Internal Affairs Bureau Group 27, JOHN A. EGAN, Retired Sergeant, Southeast Queens Initiative, each defendant being sued in their individual and official capacity, GEORGE A. GRASSO, First Deputy Police Commissioner, Defendants‐Appellees. 1

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FOR PLAINTIFF‐APPELLANT: SCOTT A. KORENBAUM (Barry E. Janay, Law Office of Barry E. Janay, on the brief), New York, New York.

FOR DEFENDANTS‐APPELLEES: DRAKE A. COLLEY, Assistant Corporation Counsel (Edward F.X. Hart, Assistant Corporation Counsel, on the brief), for Zachary W. Carter, Corporation Counsel of the City of New York, New York, New York.

Appeal from the United States District Court for the Eastern District of New York

(Block, J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,

AND DECREED that the judgment of the district court is AFFIRMED.

Plaintiff‐appellant Howard L. Henderson appeals from a judgment of the district

court dismissing his complaint alleging that the individual defendants‐appellees,

Hendersonʹs former supervisors at the New York City Police Department (the ʺNYPDʺ),

retaliated against him for filing a race discrimination claim. Judgment was entered

1 The Clerk of the Court is directed to amend the caption to conform to the above. ‐ 2 ‐

April 5, 2013 following a jury verdict in favor of defendants‐appellees. On appeal,

Henderson contends that (1) the district judgeʹs conduct during the trial resulted in an

unfair trial, and (2) the district court erred in declining to give a requested jury

instruction. We assume the partiesʹ familiarity with the facts, procedural history, and

issues on appeal.

1. The Trial Judgeʹs Conduct

In presiding over a trial, a district judge ʺhas the duty to see that the facts are

clearly presented,ʺ not merely to act as a ʺmoderator.ʺ Care Travel Co. v. Pan Am. World

Airways, Inc.,

(2d Cir. 1991) (internal quotation marks omitted).

Accordingly, the judge may ʺsummarize the evidence for the jury and, if he chooses, . . .

comment on it,ʺ and he may also ʺinterpose relevant questions to witnesses to clarify

both legal and factual issues and thus minimize possible confusion in the jurorsʹ minds.ʺ

(internal quotation marks and citation omitted); see also United States v. Filani,

(2d Cir. 1996) (ʺ[T]he trial court may actively participate and give its own

impressions of the evidence or question witnesses, as an aid to the jury.ʺ). In doing so,

however, the judge may not ʺconvey [his] view about the merits of a partyʹs claim,ʺ

Berkovich v. Hicks,

(2d Cir. 1991), ʺimpose his own opinions on the

jury,ʺ or ʺassum[e] the role of an advocate by making arguments to the jury,ʺ Care

Travel,

.

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In deciding whether a district court has overstepped its bounds, we ʺmust review

the entire record and attempt to determine whether the conduct of the trial has been

such that the jurors have been impressed with the trial judgeʹs partiality to one side to

the point that this became a factor in the determination of the jury.ʺ United States v.

Messina,

(2d Cir. 1997) (internal quotation marks omitted).

Here, Henderson contends that the district court denied him a fair trial by:

repeatedly taking over the questioning of witnesses; eliciting testimony that supported

the defendantʹs arguments; affirming the testimony of defense witnesses as true; and

mocking and chastising his counsel in the juryʹs presence. While the district court was

an active participant in the trial, we are not persuaded that it overstepped its bounds to

the extent that Henderson was denied a fair trial. The district courtʹs frequent

interventions to pose questions to witnesses were, as a whole, attempts to clarify factual

issues for the jury or to move counsel along.

Furthermore, although the district court repeatedly admonished Hendersonʹs

trial counsel in the presence of the jury, and even eventually held him in contempt, it

also admonished defendantsʹ trial counsel2 and was abrupt with witnesses associated

with the defense.3 It did not, at any rate, ʺconvey[] to the jury the impression that it

See, e.g., J.A. at 660 (addressing defense counsel, the district court stated: ʺDonʹt say it. Donʹt go that 2

direction, please. Before I put a noose around both your necks.ʺ). 3 See, e.g., J.A. at 551 (ʺ[The Witness:] I would like to see it. [The Court:] One second. You donʹt have to see it. He read it to you.ʺ). ‐ 4 ‐

held a fixed and unfavorable opinion of [plaintiff], [his] counsel, and [his] position.ʺ

Rivas v. Brattesani,

(2d Cir. 1996).

Finally, the district court took care to instruct the jury during the course of trial

as follows:

[T]he important thing I want to tell you is that because I [admonished Hendersonʹs trial counsel], I donʹt want you to think that I have a view of the case. You shouldnʹt think that I am prejudiced against Mr. Henderson because of that. It is just what happens in the human cauldron of a trial. And you have to understand that just because I was tough on [Hendersonʹs trial counsel], I was only doing that to try to manage the trial to the best of my ability, and you are not to take that out against his client one iota. . . . [S]ometimes jurors may think that if the Judge is annoyed at a lawyer, that that means they should find against his client. You are not to do that . . . . It would be wrong for you to . . . say because the Judge . . . had to raise his voice and had to . . . admonish [Hendersonʹs trial counsel] in your presence, that that means you should not hold for his client. That would be wrong. Strictly the evidence.

The district court gave a similar instruction when it charged the jury. Ultimately,

despite a few perhaps ill‐advised comments,4 the district judgeʹs conduct did not betray

such ʺpartiality to one sideʺ that Henderson was denied a fair trial.

4 For instance, in the juryʹs presence, the district court asked Hendersonʹs counsel why he was ʺafraidʺ to directly ask former Commissioner Raymond Kelly why it took so long to reinstate Henderson to full duty: ʺWhy donʹt you just ask him why did it take so long, I will let you ask that question if he knows the answer. Are you afraid to ask that question for some reason? Do it.ʺ J.A. at 693. ‐ 5 ‐

2. The Jury Instruction

Henderson maintains that the district court erred by declining to give to the jury

his requested instruction concerning the Patrol Guide provisions governing when an

officer may be kept on modified duty. This argument is unavailing. The proposed

instruction would have given the jury Hendersonʹs interpretation of the Patrol Guide,

when this was a matter in dispute. The relevant provisions of the Patrol Guide were in

evidence, witnesses had testified as to their meaning, and Hendersonʹs counsel was

permitted to argue to the jury that the NYPD failed to comply with the Patrol Guide

and that its noncompliance supported an inference that defendants had retaliated

against Henderson. The parties were free to argue their interpretations of the

provisions to the jury, and the district court was under no obligation to instruct the jury

that Hendersonʹs interpretation was correct. Thus, the district court did not err in

rejecting Hendersonʹs requested jury charge.

We have considered Hendersonʹs remaining arguments and conclude they are

without merit. Accordingly, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine OʹHagan Wolfe, Clerk

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