Opinion
97-CV-0872E(M)
November 13, 2002
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiffs, who are convenience store owners of Arabic ethnicity, filed suit in New York State Supreme Court, County of Erie, on October 9, 1997 asserting, inter alia, section 1983 claims for alleged violation of their rights under the Fourth, Fifth and Fourteenth Amendments to the United States Constitution stemming from searches and seizures conducted by the multi-governmental Fillmore District Deli Task Force ("Task Force") in 1996-1997.
This action was removed to federal court November 7, 1997. After a several week trial, the jury returned a verdict September 14, 2001 in favor of the defendants. Judgement was entered on the jury verdict October 1, 2001. On October 15, 2001 plaintiffs Homasin, Almadrhi and Saide filed a motion seeking, inter alia, (1) judgment as a matter of law pursuant to Rule 50(b) of the Federal Rules of Civil Procedure ("FRCvP"), (2) a new trial pursuant to FRCvP 59, (3) relief from judgment pursuant to FRCvP 60(b), (4) leave to amend their motion papers and to file a complete trial transcript and (5) an extension of time to move for attorneys' fees under FRCvP 54(d)(2)(B) and 42 U.S.C. § 1988.
By Order dated August 1, 2002, this Court denied plaintiffs' request for an extension of time to move for attorneys' fees but granted plaintiffs' request to amend their motion papers. Plaintiffs filed such October 15, 2002.
This Court finds that plaintiffs' request for relief pursuant to FRCvP 50(b) should be denied. Plaintiffs bear a heavy burden in seeking judgment as a matter of law predicated upon FRCvP 50(b). Concerned Residents for Envirn. v. Southview Farm, 34 F.3d 114, 117 (2d Cir. 1994), cert. denied, 514 U.S. 1082 (1995).
Such a motion will be granted only in the rare occasion where there is "`such a complete absence of evidence supporting the verdict that the jury's findings could only have been the result of sheer surmise and conjecture' or where the evidence in favor of the movant is so overwhelming that `reasonable and fair minded men could not arrive at a verdict against him.'" Brabson v. The Friendship House of W.N.Y., 2002 WL 31004731, at *2 (2d Cir. 2002) (quoting Phillips v. Bowen, 278 F.3d 103, 108 (2d Cir. 2002)). In ruling on such a motion, this Court must view the evidence presented at trial in the light most favorable to the non-moving parties and to draw all reasonable inferences in their favor. Logan v. Bennington College Corp., 72 F.3d 1017, 1022 (2d Cir. 1995), cert. denied, 519 U.S. 822 (1996). Moreover, in "considering the evidence, the Court may not weigh evidence, assess credibility, or substitute its opinion of the facts for that of the jury." Ibid.
Plaintiffs fail to satisfy this stringent standard. Indeed, plaintiffs do not cite any law in support of their motion — and make scant citation to the trial transcript. Accordingly, plaintiffs fail to adequately support their motion.
Furthermore, plaintiffs' motion simply attempts to re-argue issues that the jury decided against them. Specifically, plaintiffs contend that (1) plaintiffs were the subject of selective law enforcement on the basis of their ethnicity in violation of their equal protection rights and (2) that searches conducted by the Task Force were unlawful.
This Court assumes arguendo that the Task Force inspections were searches for purposes of the Fourth Amendment to the United States Constitution.
Plaintiffs also seek judgment as a matter of law with respect to their conspiracy and failure to protect claims. Such, however, are not supported by any case law or citations to the trial transcript. Inasmuch as these contentions are without merit, the Court declines to address such.
With respect to plaintiffs' first contention, Officer Maloney, who was part of the Task Force, testified, inter alia, that the Task Force meetings at Buffalo City Hall "never" involved a discussion of the plaintiffs' ethnicity and that ethnicity was not a factor in Task Force operations. Tr. at 1274-1277, 1288-1289, 1300-1301, 1345. Officer Maloney's testimony to this effect was supported by the testimony of other Task Force members, including testimony that non-Arabic deli owners were also subjected to Task Force inspections. See Tr. at 675, 740-743, 757-759 (Fillmore District Councilman David Franczyk); Tr. at 790 (Assistant District Attorney Drmacich); Tr. at 1196, 1201 (Police Commissioner Rocco Diina); Tr. at 1458 (Officer Szczur). Furthermore, the Fillmore councilmanic district — as opposed to some other part of the City of Buffalo — was selected based upon citizen complaints made to Councilman Franczyk. See Tr. at 659-660, 668-672, 719-720, 739-740; see also Tr. at 1611-1612 (Albanna, an Arabic wholesaler, testified about his belief that "the vast majority" of Arabic owned delis are on the east side of the City of Buffalo — i.e., the Fillmore District). Accordingly, inasmuch as this Court will not "weigh evidence, assess credibility, or substitute its opinion of the facts for that of the jury," — Logan, at 1022 — the evidence at trial was sufficient for the jury to find that the Task Force did not selectively enforce laws against plaintiffs or otherwise violate their equal protection rights.
With respect to plaintiffs' second contention, there was sufficient evidence for the jury to find that the plaintiffs consented to the searches by failing to object to such and by assisting the Task Force in their inspections. Indeed, consent may be "inferred from the absence of any objection" by plaintiffs to the searches. See United States v. Walker, 922 F. Supp. 724, 728 (N.D.N.Y. 1996) (citing United States v. Barahona, 990 F.2d 412, 417 (8th Cir. 1993) for the proposition that "passively looking on or actively assisting rather than objecting to search is a factor indicating consent"); see also Krause v. Penny, 837 F.2d 595, 597 (2d Cir. 1988) (holding that defendant's consent was properly implied from his acts and conduct, including his failure to object to officer's entry onto his property).
See Schneckloth v. Bustamonte, 412 U.S. 218, 219-230 (1973); Illinois v. Rodriguez, 497 U.S. 177, 183-84 (1990). Moreover, "[a]n expectation of privacy in commercial premises *** is different from, and indeed less than, a similar expectation in an individual's home." New York v. Burger, 482 U.S. 691, 700 (1987); see also Tr. at 1441 (Officer Szczur testified that plaintiffs could have asked the Task Force to leave at any time).
Indeed, even if plaintiffs testified that they expressly refused consent — which was not the case — their "actions may [nonetheless] reasonably be interpreted to indicate consent, even where oral response to a request to search is negative." United States v. Arbalaez, 1999 WL 980172, *4 (S.D.N.Y. 1999) (citing United States v. Lee, 1996 WL 391877, at *3-4 (S.D.N.Y. 1996), which held that search of shopping bag was reasonable where defendant verbally refused consent but handed bag to agent).
Moreover, the jury had sufficient evidence to find that Saide and Almadrhi expressly consented to the searches — as evidenced by the consent forms that they signed. See Tr. at 377, 405-411, 417-420; 890, 895-896.
Additionally, Saide conceded that it was possible that his employee could have consented to the search of 1129 East Ferry. See Tr. at 411; see also O'Rourke v. Huff, 2002 WL 1900417, at *1 (2d Cir. 2002) (discussing the authorized third party "consent" exception to the Fourth Amendment). Likewise, whether or not Almadrhi was an "official" employee of the deli, he was working and thus had (or reasonably appeared to have) authority to give consent for a search. Ibid.
Almadrhi signed a consent form for the January 13, 1997 search. It is not clear, however, that he did so for the January 3, 1997 search. Nonetheless, with respect to the January 3, 1997 search, Almadrhi testified that, upon seeing the police outside the store, he "wanted to open the door for them." See Tr. at 864.
Although he agreed with counsel that he was not inviting the police in for a "party" or to "bake bread," Almadrhi also testified that he wanted the police to enter the store because he thought that they were "coming to protect [him]." See Tr. at 872. Accordingly, Almadrhi impliedly consented to the Task Force's entry and search of the store when he opened the door for them. See Walker, at 727 (quoting United States v. Garcia, 56 F.3d 418, 424 (2d Cir. 1995) for the proposition that "consent may be inferred `from an individual's words, acts or conduct'"); United States v. Deutsch, 987 F.2d 878, 883 (2d Cir. 1993) (affirming district court's finding of implied consent where defendant "unmistakably invited the officers inside" by telling them that he had to go into his house to retrieve his identification).
In any event, Almadrhi's subjective reservations are not relevant in assessing the Task Force's objective interpretation of his conduct as an implicit invitation to enter to store for purposes of the inspection. See Garcia, at 423 (holding that the "totality of the circumstances" must be considered and that the issue was whether "the officer had a reasonable basis for believing that there had been consent to the search.") (citation omitted).
Furthermore, with respect to Homasin, the jury also had sufficient evidence to find that he consented to the search based on his compliance with a request for his passport and immigration paperwork and the fact that he led the officers into the apartment above the store. See Tr. at 435-436, 439-440; Deutsch, at 883.
Additionally, sufficient evidence existed for the jury to find that plaintiffs' consents were voluntary. To determine whether plaintiffs' consents were voluntary, this Court "must examine the totality of the circumstances to determine whether the consent was a product of that individual's free and unconstrained choice, rather than a mere acquiescence in a show of authority." Garcia, at 422. Nonetheless, "[s]o long as the police do not coerce consent, a search conducted on the basis of consent is not an unreasonable search *** [and] knowledge of the right to refuse consent is not a requirement to a finding of voluntariness." Ibid.
See also Ohio v. Robinette, 519 U.S. 33, 35-40 (1996) (holding that Fourth Amendment does not require that lawfully seized detainee be advised that he is "free to go" before his consent to search will be recognized as voluntary); United States v. Crespo, 834 F.2d 267, 271-72 (2d Cir. 1987) ("an officer does not have an affirmative duty to advise a defendant that he may refuse to consent to a search").
Although Saide and Almadrhi testified that they did not understand the consent forms that they signed, the jury was within its discretion to discredit such testimony — especially in light of their testimony that they had sufficient command of the English language to be able to conduct business in English with distributors and so forth. See e.g., Tr. at 409, 417-422, 883, 889-891; United States v. Vasquez-Santiago, 602 F.2d 1069, 1073 (2d Cir. 1979) (finding consent voluntary, even though defendant did not understand English well, because, inter alia, he previously demonstrated an ability to understand English), cert. denied, 447 U.S. 911 (1980); United States v. Oguns, 921 F.2d 442, 448 (2d Cir. 1990) (finding consent voluntary because defendant had been in the United States for several months and spoke and understood English). Moreover, there was sufficient testimony for the jury to conclude that plaintiffs were sufficiently calm when they consented to the searches. United States v. Diaz, 2000 WL 357680, at *2 (2d Cir. 2000) (holding that Diaz voluntarily consented to search where, "[e]ven though Diaz was ordered to the floor at gunpoint *** was patted down and was not given Miranda warnings, he thereafter was dealt with was within its discretion to assess the credibility of the witnesses' testimony and to draw reasonable inferences therefrom. See Brabson, at *2; Logan, at 1022.
Accordingly, plaintiffs' FRCvP 50(b) motion will be denied because the evidence at trial supports the jury's verdict and therefore does not compel the conclusion that plaintiffs' contend it does. Brabson, at *2.
See also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-251 (1986) (stating that, under FRCvP 50, the "trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict *** [i]f reasonable minds could differ as to the import of the evidence, however, a verdict should not be directed.") (citations omitted).
Plaintiffs also seek a new trial pursuant to FRCvP 59 and FRCvP 60 on the ground that the events of September 11, 2001 prejudiced the jury's verdict, which was rendered on September 14, 2001. Such motions will be denied. When ruling on a motion for a new trial pursuant to FRCvP 59, a "grant of a new trial on the ground that the verdict was against the weight of the evidence is appropriate if `the jury has reached a seriously erroneous result or *** the verdict is a miscarriage of justice.'" Farrior v. Waterford Bd. of Ed., 277 F.3d 633, 634 (2d Cir.) (citation omitted), cert. denied, ___ U.S. ___, 122 S.Ct. 2661 (2002). The Court finds that the jury's verdict is neither "seriously erroneous" nor "a miscarriage of justice." Indeed, this Court declines to accept plaintiffs' conjectural hypothesis concerning the jury's alleged prejudice. See Sussman v. Unum Provident Corp., 2001 WL 1352789, at *2-3 (C.D.Cal. 2001) (denying new trial based on alleged prejudice created by the events of September 11, 2001 with respect to verdict rendered September 13, 2001 because the "Court cannot consider evidence of the effect of the terrorist attacks on the mental processes of the jury."). Although plaintiffs suggest that the jury was tainted by media coverage of September 11th and its aftermath, they fail to provide any evidence that this jury was improperly tainted.
The losing party in Sussman was not Arabic, but claimed prejudice based on the jury's allegedly hasty decision prompted by fear of an attack on the federal courthouse in which they were deliberating. Nonetheless, Sussman rejected a conjectural hypothesis of how the jury allegedly deliberated as a result of the September 11th attacks as an appropriate ground for a new trial. Cf. United States v. Hakim, 2002 WL 31151174, at *3-5 (E.D.Pa. 2002) ("Defendant's opportunistic references to anti-Muslim bias engendered by the events of September 11, 2001 also does not demonstrate that the evidence of his religious beliefs seriously affected the fairness, integrity, or public reputation of his trial."); United States v. Salim, 189 F. Supp.2d 93, 97 (S.D.N.Y. 2002) (denying change of venue and noting that criminal defendant "cannot provide strong evidence on the linkage between the special prejudice in New York arising from the events of September 11 and the fair trial rights of the defendant.").
Not insignificantly, plaintiffs sought no abortment of the trial.
In any event, plaintiffs were aware of the potential prejudice to the jury when this Court conducted a voir dire of the jury on September 12, 2001. Tr. at 2123-2131. Nonetheless, plaintiffs failed to seek a mistrial and are thus precluded from seeking a second bite at the apple after they had consciously decided to "roll the dice" with the empaneled jury. Ibid.; see also Cool Light Co., Inc. v. GTE Prods. Corp., 832 F. Supp. 449, 459 (D.Mass. 1993) ("In general, a party who acquires information supportive of a claim for mistrial or new trial is precluded from such relief if, rather than presenting the matter promptly to the court, the party awaits the outcome of the trial and then, after losing, for the first time, moves for relief."); cf. Machesney v. Bruni, 905 F. Supp. 1122, 1129-1130 (D.D.C. 1995) (finding that party's withdrawal of motion for a mistrial constituted a waiver of such that could not be pursued via a post-trial motion). Accordingly, plaintiffs waived this argument.
After receiving notice of the Trade Center "bombing" the undersigned had adjourned the trial until the following day.
Moreover, plaintiffs attempt to point to direct evidence of the jury's alleged bias when they contend that there was no evidence supporting the jury's finding that officers Szczur and Maloney operated "under a policy of the City of Buffalo" when they participated in the Task Force. See Pls.' Mot., Ex. B. This Court disagrees. Inasmuch as the Task Force was comprised of various inter-governmental agencies, the jury may have reasonably concluded that officers Szczur and Maloney were participating under the authority of the City of Buffalo, which is not to say that they were participating pursuant to a policy of the City of Buffalo. Accordingly, this Court finds no reason to grant plaintiffs a new trial.
The Court has reviewed all grounds raised by plaintiffs in support of their motion for a new trial — many of which involve the weight of the evidence — but finds them equally without merit. Accordingly, plaintiffs' request for a new trial will be denied.
Plaintiffs' contentions, denominated as "New Issues" in an Amended Affidavit are without merit. Furthermore, such are untimely inasmuch as they were not raised within the time required by FRCvP 59. Although this Court granted plaintiffs leave to amend their motion papers, such leave was granted in order that plaintiffs add legal authority and cite the trial record — not raise new issues that were already waived.
Accordingly, it is hereby ORDERED that plaintiffs' post-verdict motion for relief is denied, that the jury verdict entered judgment October 1, 2001 will stand and that this case shall be closed.