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Insufficient evidence that former DA retaliated

Appellant Samuel Biers appeals the district court’s entry of judgment as a matter of law in favor of Appellee Tracey Cline during a jury trial on Biers’s First Amendment retaliation claim. Biers claimed that, in 2011, Cline – then the District Attorney of Durham County – conspired to remove Biers from his magistrate position and publicly humiliate him in retaliation for Biers’s exposure of Cline’s misconduct. On appeal, Biers claims that the district court abused its discretion by excluding extrinsic evidence of Cline’s retaliatory intent and that the district court erred in finding that no reasonable juror could find retaliation.

The district court did not abuse its discretion excluding Biers’s extrinsic evidence. First, Biers’s theory of the case was that Cline was part of a clandestine conspiracy to engineer the filing of false affidavits seeking Biers’s removal as magistrate and to leak this false information to the media. By contrast, the evidence Biers sought to introduce was publicly submitted by Cline on the record, under her own name. To the extent that the extrinsic evidence is probative of retaliation, therefore, it is probative not as to Cline’s intent (as permitted by Federal Rule of Evidence 404(b)(2)), but rather as to her propensity (which is proscribed by Rule 404(b)(1)).

In addition, the exhibits Biers sought to introduce totaled over 600 pages, and the district court was properly concerned about the risk of confusing the jury about the relevant issues in the case, as well as the trial being subsumed by a mini-trial over the propriety of Cline’s past acts. For the same reason, the district court did not abuse its discretion by ruling that Biers was not entitled to cross-examine Cline about the contents of the exhibits for impeachment purposes.

The district court also did not err in refusing to admit handwritten notes of the chief district judge. Although the judge testified during trial, Biers did not question the judge about the notes, instead seeking to introduce them through the testimony of the judge’s assistant. But the assistant had never seen the notes before and had no knowledge as to the circumstances of their creation. Because it was not self-evident from the notes what they were and the assistant could not have aided the jury in considering them, they were properly excluded.

This court also affirms the district court’s decision to grant Cline’s motion for judgment as a matter of law. Cline did not file either of the affidavits that led to Biers’s removal proceedings and, while Biers alleged that Cline was part of a conspiracy that orchestrated the filing of the affidavits, those allegations were not supported by any testimony at trial. There was also no testimony from which the jury could reasonably infer that Cline leaked false information about Biers to the media. The judge presiding over the removal proceedings – who Biers did not allege was part of the conspiracy – assigned Cline’s office to prosecute the removal proceedings, but trial testimony established that she assigned the case to one of her assistants and thereafter did not control or participate in the matter. Thus, even assuming that Biers engaged in protected First Amendment activity, the evidence was insufficient to support any reasonable inferences that Cline took any action against Biers.


Biers v. Cline, Case No. 17-1619, Feb. 9, 2018; 4th Cir. (per curiam); MDNC at Greensboro (Eagles). Robert Ekstrand for Appellant; Joshua H. Stein for Appellee. VLW No. 018-2-022, 7 pp.

VLW 018-2-022

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