Filed: Jan. 13, 2006
Latest Update: Feb. 21, 2020
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 05-10694 ELEVENTH CIRCUIT JANUARY 13, 2006 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-60707-CV-LRJ VINCENT FAVUZZA, JR., Plaintiff-Appellant, versus WILTON MANORS, Police Department, FORT LAUDERDALE POLICE DEPARTMENT, Defendants, OSCAR GONZALEZ, Officer, KENNETH KELLEY, Officer, Defendants-Appellees. _ Appeal from the United States District Court for the Souther
Summary: [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ FILED U.S. COURT OF APPEALS No. 05-10694 ELEVENTH CIRCUIT JANUARY 13, 2006 Non-Argument Calendar THOMAS K. KAHN _ CLERK D. C. Docket No. 02-60707-CV-LRJ VINCENT FAVUZZA, JR., Plaintiff-Appellant, versus WILTON MANORS, Police Department, FORT LAUDERDALE POLICE DEPARTMENT, Defendants, OSCAR GONZALEZ, Officer, KENNETH KELLEY, Officer, Defendants-Appellees. _ Appeal from the United States District Court for the Southern..
More
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 05-10694 ELEVENTH CIRCUIT
JANUARY 13, 2006
Non-Argument Calendar
THOMAS K. KAHN
________________________
CLERK
D. C. Docket No. 02-60707-CV-LRJ
VINCENT FAVUZZA, JR.,
Plaintiff-Appellant,
versus
WILTON MANORS, Police Department,
FORT LAUDERDALE POLICE DEPARTMENT,
Defendants,
OSCAR GONZALEZ, Officer,
KENNETH KELLEY, Officer,
Defendants-Appellees.
________________________
Appeal from the United States District Court
for the Southern District of Florida
_________________________
(January 13, 2006)
Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:
Vincent Favuzza, Jr. appeals the magistrate judge’s denial of his motion for a
new trial based on improper closing argument in his 42 U.S.C. § 1983 action against
Wilton Manors Police Department Officer Oscar Gonzalez and Fort Lauderdale
Police Department Officer Kenneth Kelley, as well as the officers’ respective police
departments, alleging that violations of Favuzza’s Fourth, Fifth, and Fourteenth
Amendment rights occurred in the course of his arrest. After careful review of the
pertinent parts of the record and consideration of the parties’ arguments, we affirm
the magistrate judge’s decision.1
The parties are familiar with the underlying facts and, accordingly, we limit our
factual discussion to the circumstances surrounding the motion for a new trial. Prior
to trial, Officer Kelley moved in limine to exclude any evidence regarding his Internal
Affairs file (“IA file ”). In support of the motion, Kelley’s counsel told the district
court that the IA file was “on other matters that have nothing to do with this case,”
to which Favuzza attorney responded: “Your honor, we don’t intend to introduce any
of that evidence.” Thus, the parties’ agreement on the exclusion of the IA file
1
The parties filed a written consent to proceed before a magistrate judge, pursuant to 28
U.S.C. § 636.
2
ultimately mooted the limine motion. There was no further discussion of the IA file,
nor was the file introduced or so much as referenced during the subsequent trial.
At the end of the two-day jury trial, during her closing argument, Gonzalez’s
counsel made the following argument, which is now challenged in this appeal:
Credibility of a witness. you haven’t heard any history, any background
of either of these two officers that would lead you to believe there was
anything in their background that gave you reason not to believe them.
You put that over here, and then you put the credibility of Mr. Favuza
right here. And who’s the more credible witness? Who is the more
credible party to this case? An eight-time 25-year-old convicted felon
or police officers that came before you with no evidence of any prior
problems on the police force. Let me tell you something, if it was there,
you would have heard it. So you can only --
Favuzza’s counsel lodged an objection, which the district court overruled.
Gonzalez’s attorney concluded “[y]ou can only assume that it’s not there.” During
rebuttal argument, Favuzza’s attorney said this:
Now, they say that if these officers had a bad past, if they have been
accused of this stuff before, you would have heard that. Well, honestly,
ladies and gentlemen, I don’t know. My co-counsel doesn’t know, and
Vinnie [Favuzza] doesn’t know. We don’t know about these officers’
past. We don’t have any resources to find out. So don’t assume that
they have never done anything wrong. In fact, you can just as much
assume that they have done something wrong.
Finally, in the course of charging the jury, the district court admonished the jury:
“remember that anything the lawyers say is not evidence in this case.” The jury
returned a verdict in favor of the defendants.
3
Favuzza then moved for a new trial, arguing that the reference to “prior
problems in the police force” prejudiced him and influenced the jury’s verdict to such
an extent that a new trial was warranted. The magistrate judge disagreed. She noted
the high standard applicable to such arguments, which requires the movant to show
that counsel’s improper conduct “was such as to impair gravely the calm and
dispassionate consideration of the case by the jury.” See BankAtlantic v. Blythe
Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th Cir. 1992). In a thorough
and well-reasoned order, the magistrate judge concluded that Favuzza had not met his
burden to show sufficient prejudice. This appeal followed.
As a preliminary matter, our review of the entire record reveals that it is not at
all clear the challenged argument was improper. Favuzza, who volunteered prior to
trial that he did not intend to use the IA file (thus mooting the in limine motion),
never attempted to offer the IA file or any other evidence of “prior problems in the
police force” in connection with these defendants. Accordingly, counsel’s comments
on the lack of a prior history was an entirely appropriate characterization of the
evidence before the jury.
Moreover, after defense counsel made the above-quoted argument, Favuzza’s
attorney was given the opportunity to rebut, and did rebut, the plaintiff’s
characterization of the lack of evidence. He argued that, based on the lack of
4
evidence of prior history, the jury could “just as much assume that they have done
something wrong.” In addition to counsel’s rebuttal argument, we note that the
district court advised the jury that the lawyers’ arguments were not evidence.
Even if the argument was error, we are hard-pressed to conclude that the
argument rose to the level of misconduct necessary for granting a new trial. Again,
in order to warrant a new trial based on improper conduct by counsel, including
improper closing argument, a party must show that “the conduct was such as to impair
gravely the calm and dispassionate consideration of the case by the jury.”
BankAtlantic, 955 F.2d at 1474. Given that no IA file was introduced, due in large
part to Favuzza’s pre-trial agreement that he was not going to introduce such
evidence, we fail to see how an argument highlighting that omission affected, one
way or the other, the jury’s decision. Indeed, as Favuzza’s attorney recognized during
rebuttal argument, the lack of such evidence could just as well have been construed
in his client’s favor.
Simply put, we can find no abuse of the magistrate judge’s broad discretion in
ruling on the motion for new trial. See id. (reviewing district court’s denial of motion
for new trial based on counsel’s improper conduct for abuse of district court’s “broad
discretion”). As we have explained, abuse-of-discretion review
5
recognizes the range of possible conclusions the trial judge may reach.
By definition . . . under the abuse of discretion standard of review there
will be occasions in which we affirm the district court even though we
would have gone the other way had it been our call. That is how an
abuse of discretion standard differs from a de novo standard of review.
As we have stated previously, the abuse of discretion standard allows a
range of choice for the district court, so long as that choice does not
constitute a clear error of judgment.
United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (internal
quotation marks and citations omitted), cert. denied,
125 S. Ct. 2516,
161 L. Ed. 2d
1114 (2005). In the context of alleged improper conduct by counsel, application of
the deferential abuse-of-discretion standard is particularly appropriate since it is the
magistrate judge who “had the opportunity to hear the [allegedly] offensive remarks
within the context of the argument and to view their effect on the jury."”
BankAtlantic, 955 F2d at 1474 (internal quotation marks and citation omitted). Our
review of the record reveals no abuse of discretion by the magistrate judge who, in
a well-reasoned order, thoroughly considered and rejected all of the arguments
Favuzza raises here. Accordingly, we affirm.
AFFIRMED.
6
