[DO NOT PUBLISH]


              IN THE UNITED STATES COURT OF APPEALS
                                                                 FILED
                       FOR THE ELEVENTH CIRCUIT   U.S. COURT OF APPEALS
                         ________________________   ELEVENTH CIRCUIT
                                                             JUNE 11, 2010
                               No. 09-13969                   JOHN LEY
                           Non-Argument Calendar                CLERK
                         ________________________

                 D. C. Docket No. 07-00841-CV-ORL-22-GJK

THOMAS B. LUKA,

                                                             Plaintiff-Appellant,

                                    versus

THE CITY OF ORLANDO,
a Municipal corporation,
ANTHONY MILLER,
in his Individual capacity,

                                                          Defendants-Appellees.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Florida
                       _________________________

                                (June 11, 2010)

Before BLACK, PRYOR and ANDERSON, Circuit Judges.
PER CURIAM:

      Thomas B. Luka, an attorney proceeding pro se, appeals a jury verdict

denying him relief in his civil rights action against the City of Orlando (“the City”)

and Orlando Police Department (“OPD”) Officer Anthony Miller, brought pursuant

to 42 U.S.C. § 1983. The suit alleged, inter alia, that Miller violated Luka’s

constitutional rights by subjecting him to an unconstitutional search and seizure,

using excessive force, and wrongfully arresting him outside a bar. Luka raises two

evidentiary issues on appeal, arguing that the district court erred in admitting the

testimony of four witnesses concerning the events leading up to Luka’s arrest and

in excluding evidence of previous incidents in which Officer Miller used force

while making an arrest. Finding no error in the district court’s judgment, we

affirm.

                                           I.

      First, Luka argues that the district court erred in allowing Miller to present

the testimony of four witnesses who testified as to his alleged conduct before

Miller arrested him. In particular, Luka contends that the witnesses’ testimony was

irrelevant and inadmissible under Fed. R. Evid. 401. In this respect, Luka asserts

that the testimony had no bearing on any fact of consequence because the only

issues at trial were whether Miller had probable cause to arrest Luka and whether



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Miller used excessive force. Accordingly, Luka asserts that because Miller could

only arrest Luka for conduct that he observed personally, and Miller testified that

he was unaware of Luka’s behavior before he arrived, the witnesses’ testimony

regarding events that allegedly occurred before Miller arrived was irrelevant.

Moreover, Luka claims that the district court erred in finding that he opened the

door to such evidence because he asserts that he did not elicit any of these facts

from Miller. In the alternative, Luka argues that even assuming the witnesses’

testimony was relevant, the evidence was inadmissible under Fed. R. Evid. 403

because the probative value of the testimony was substantially outweighed by the

danger of unfair prejudice.

      “In deference to a district court’s familiarity with the details of the case and

its greater experience in evidentiary matters, courts of appeals afford broad

discretion to a district court’s evidentiary rulings.” Sprint/United Mgmt. Co. v.

Mendelsohn, 

, 384, 

, 1144-45, 

(2008).

Accordingly, we review a district court’s evidentiary rulings for a clear abuse of

discretion. United States v. Tinoco, 

, 1119 (11th Cir. 2002).

      Federal Rule of Evidence 402 states that “[e]vidence which is not relevant is

not admissible.” Fed. R. Evid. 402. Federal Rule of Evidence 401 defines

“relevant evidence” as “evidence having any tendency to make the existence of any



                                           3
fact that is of consequence to the determination of the action more probable or less

probable than it would be without the evidence.” Fed. R. Evid. 401. Federal Rule

of Evidence 403, however, provides that “[a]lthough relevant, evidence may be

excluded if its probative value is substantially outweighed by the danger of unfair

prejudice . . . .” Fed. R. Evid. 403. We have stated that Rule 403 should be used to

exclude evidence “very sparingly.” Wilson v. Attaway, 

, 1242 (11th

Cir. 1985) (internal quotation marks omitted). Consequently, in “reviewing issues

under Rule 403, we look at the evidence in a light most favorable to its admission,

maximizing its probative value and minimizing its prejudicial impact.” United

States v. Brown, 

, 1362 (11th Cir. 2006).

      The district court did not abuse its discretion in allowing testimony relating

to Luka’s conduct leading up to his arrest. The witnesses’ testimony was relevant

under Fed. R. Evid. 401 and did not run afoul of Fed. R. Evid. 403 because the

danger of unfair prejudice did not substantially outweigh the evidence’s probative

value. The evidence was relevant because the testimony concerning Luka’s

actions in the time immediately prior to the encounter tended to corroborate

Miller’s account that he approached Luka because he was being disruptive and

contradict Luka’s testimony that he was standing peacefully in front of Casey’s and

accidentally touched Miller. Given that the parties’ accounts of their encounter



                                          4
differed widely, evidence tending to corroborate one account and contradict

another was particularly relevant. Although the testimony was certainly prejudicial

to Luka’s case in that it contradicted his account of the events in question, that type

of prejudice is not unfair. Still, the evidence may have invited some risk of unfair

prejudice by portraying Luka as disruptive and boorish and allowing the jury to

decide the case on that basis. But even assuming some risk of unfair prejudice, the

district court did not abuse its discretion in deciding that the probative value of the

evidence was not substantially outweighed by any risk of unfair prejudice.

                                          II.

      Luka next argues that the district court erred by excluding “evidence of

Officer Miller’s pattern and practice of using excessive force.” In particular, Luka

states that he intended to introduce evidence that 68 complaints of excessive force

were allegedly filed against Miller in his four years as an OPD officer. Luka

claims that because this evidence establishes a “pattern and practice” of use of

excessive force, the very issue he is raising, it is relevant, non-prejudicial evidence.

      Federal Rule of Evidence 404(b) provides as follows:

      Evidence of other crimes, wrongs, or acts is not admissible to prove
      the character of a person in order to show action in conformity
      therewith. It may, however, be admissible for other purposes, such as
      proof of motive, opportunity, intent, preparation, plan, knowledge,
      identity, or absence of mistake or accident . . . .



                                            5
Fed. R. Evid. 404(b). Overall, a two-part test governs the admissibility of Rule

404(b) evidence. Lanham v. Whitfield, 

, 972 (11th Cir. 1986). Under

this test, it must first be determined whether evidence of other acts “is relevant to

an issue other than the defendant’s character.” 

marks

omitted). Second, if the evidence is relevant to an issue other than a defendant’s

character, “the evidence must possess probative value that is not substantially

outweighed by its undue prejudice and must meet the other requirements of rule

403.” 

marks omitted).

      The district court did not abuse its discretion in excluding this evidence.

Evidence of a pattern or practice of excessive force may have been relevant in

establishing liability against the City, but summary judgment was granted in favor

of the City in advance of trial. Without the City still in the case, the admission of

this evidence fails at the first step because Luka sought to establish liability on the

part of Miller by introducing this evidence to prove Miller characteristically

engaged in the use of excessive force and acted in conformity with that

characteristic in this case. This is precisely the inference that Rule 404(b) will not

allow. Because Luka was attempting to introduce propensity evidence in violation

of Fed.R.Evid. 404(b), the district court did not abuse its discretion in excluding

evidence of Miller using force in the past.



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      Upon review of the record and consideration of the parties’ briefs, we

affirm.

      AFFIRMED.       1




      1
              Appellant’s motion for leave to file the reply brief out of time is GRANTED.
      Parties’ requests for oral argument are DENIED.

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