NOT RECOMMENDED FOR PUBLICATION
File Name: 16a0668n.06
No. 15-2182
FILED
Dec 14, 2016
UNITED STATES COURT OF APPEALS DEBORAH S. HUNT, Clerk
FOR THE SIXTH CIRCUIT
TERRY FARR, )
)
Plaintiff-Appellant, )
) ON APPEAL FROM THE
v. ) UNITED STATES DISTRICT
) COURT FOR THE EASTERN
VILLAGE OF NEW HAVEN, et al., ) DISTRICT OF MICHIGAN
)
Defendants-Appellees. ) OPINION
)
)
BEFORE: BATCHELDER, STRANCH, and DONALD, Circuit Judges.
JANE B. STRANCH, Circuit Judge Following the execution of a search warrant and
his arrest, Plaintiff-Appellant Terry Farr sued Defendant-Appellee Dale LaBombard and others,
alleging a variety of claims including excessive force under the Fourth Amendment. Farr’s
excessive force claim against LaBombard proceeded to trial, where the jury found in favor of
LaBombard. Farr appeals, arguing that the district court should have ordered a new trial based
on the misconduct of LaBombard’s counsel. For the reasons set forth below, we AFFIRM.
I. BACKGROUND
LaBombard learned from a confidential source that Farr was selling cocaine from his
home, and used a confidential informant to purchase cocaine from Farr twice before applying for
a search warrant. On the morning of June 9, 2010, LaBombard and six agents from the Drug
Enforcement Agency executed the search warrant at Farr’s home. Farr and LaBombard present
No. 15-2182, Farr v. Village of New Haven
different versions of what occurred that morning. According to Farr, LaBombard and another
agent were the first to enter Farr’s room and LaBombard grabbed his wrist, dragged him onto the
floor, and handcuffed him, yelling profanities and asking Farr where the drugs were.
LaBombard grabbed Farr by his handcuffs and jerked him up; Farr believed his wrists may have
been broken and asked multiple times for the cuffs to be loosened. LaBombard then led Farr
outside and put him in a police vehicle for transport to the New Haven Police Department where
he was interrogated. In LaBombard’s version of events, Farr was already cuffed and lying on the
floor when he entered the room. LaBombard did not recall Farr telling him that the handcuffs
were too tight.
After the district court granted summary judgment for the defendants on several issues,
the case went to trial only on the excessive force claim against LaBombard. Farr filed a pre-trial
motion seeking to preclude certain evidence relating to Farr’s prior arrests and incarceration,
prior controlled drug buys between Farr and confidential informants, allegations that Farr sold
drugs in the neighborhood, and disclosure of what the search warrant was for, among other
pieces of evidence. The district court issued an order, ruling in part:
Farr’s criminal history, aside from the circumstances surrounding his June 2010
arrest, will not be admitted at trial unless Labombard can show that any of Farr’s
arrests and/or convictions are connected to a potential alternate cause for Farr’s
injuries.
...
Labombard is not precluded from introducing evidence of the circumstances
surrounding Farr’s June 2010 arrest and the associated search warrant.
(R. 93, PageID# 1370–71). The district court subsequently issued a supplemental order on the
issue, adding that:
Labombard is not precluded from introducing evidence of the circumstances
surrounding Farr’s June 2010 arrest and the associated search warrant. More
specifically and pursuant to the supplemental argument of Plaintiff, Labombard
may introduce evidence regarding the reason(s) the officers came to Farr’s home
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and ultimately arrested him; however, pursuant to Fed. R. Evid. 403, Labombard
may not introduce evidence regarding the facts of the controlled drug buys that
preceded the issuance of the search warrant.
(R. 95, PageID# 1375).
Farr then filed a motion for reconsideration, which the district court granted in part and
denied in part in an oral ruling. At the hearing, the court clarified its previous ruling in regard to
Farr’s arrest and the search warrant:
[T]he Court finds that testimony regarding the existence of the warrant, the fact
that DEA agents were at Mr. Farr’s residence to execute it, as well as plaintiff’s
stipulation that the officers had the right to come in and arrest him in his home, is
admissible as relevant and not unduly prejudicial evidence to establish the context
of the search. However, testimony and exhibits going into detail regarding the
type of drugs and the investigation and the events preceding the execution of the
search warrant are more unfairly prejudicial than probative, especially in light of
the defense here and will not be admitted.
(R. 114, PageID# 1771–72).
The jury returned a verdict for LaBombard. Farr now argues that counsel for LaBombard
repeatedly violated the district court’s evidentiary ruling at trial, and that the court should have
declared a mistrial.
II. ANALYSIS
Farr argues that the counsel for LaBombard violated the district court’s rulings on twelve
occasions. Of those, Farr did not object at trial to the following statements by LaBombard’s
counsel:
Counsel said in opening statement: “There was good cause for the warrant. The arrest
was valid and was never changed. And you’ll find out that Mr. Farr pled guilty to the
charges that was found to the drugs in the search warrant.” (R. 116, PageID# 1891).
Counsel again mentioned that Farr pled guilty. (R. 116, PageID# 1894).
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Counsel mentioned the pre-search meeting, noted that LaBombard was a case agent, and
said that the agents would look for the items listed in the search warrant. (R. 116,
PageID# 1891).
In cross examination of Agent Steven Bowler, counsel asked if there was a “raid plan”
prepared for each search. (R. 116, PageID# 1920). During direct examination of
LaBombard, counsel asked if he had a pre-search meeting. (R. 117, PageID# 2117).
During cross examination of Agent John Walker, counsel asked if his primary job was
working narcotics cases. (R. 116, PageID# 1932).
During cross examination of Farr, counsel asked if he pled “guilty to delivery and
manufacturing of cocaine less than 50 grams?” Farr responded that he did, but clarified
that the plea was not to delivery. (R. 116, PageID# 2000).
During direct examination of Agent Jillian Fitch, counsel asked about the significance of
a metal pipe that Fitch found in Farr’s home, and she replied that it was used to smoke
drugs. (R. 117, PageID# 2044).
During direct examination of LaBombard, counsel asked if he was aware that Farr pled
guilty to delivery and manufacturing. (R. 117, PageID# 2133).
In closing argument, counsel stated: “Now, you know what the uncontested facts are:
Valid warrant, valid arrest, plead delivery and cocaine. But what we dispute here is to
what happened during this arrest and execution of this search warrant.” (R. 117, PageID#
2160–61).
Farr also points to two instances of alleged error where he did object at trial:
During cross examination of Farr, counsel asked, “They dismissed a couple of counts for
one and you pled guilty to manufacturing and delivery of crack/cocaine, correct?” In
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No. 15-2182, Farr v. Village of New Haven
objecting, Farr’s counsel stated, “Place an objection, it was less than 50 grams.” (R. 116,
PageID# 2000).
During direct examination of LaBombard, counsel asked what the interrogation interview
consisted of. LaBombard responded that he, “[a]sked him if he had any more narcotics at
his house, where it might be located. We also asked him about the previous sales that he
did as when we had a confidential informant meet with him.” Farr objected, and the
objection was sustained. The district court stated: “I’ll instruct the jury to disregard the
immediately prior answer from Mr. LaBombard. Focusing here on the events of June
9th, 2010.” (R. 117, PageID# 2128–29).
At the conclusion of LaBombard’s examination, counsel for Farr stated at sidebar that he
was moving for a mistrial and that he would make a separate motion outside of the jury. The
parties proceeded to discuss recalling a witness, and did not discuss the motion, nor was there
any ruling on the mistrial issue. Farr did not subsequently move for a mistrial.
A. Claimed misconduct to which Farr did not object
The parties do not dispute that Farr did not object to several alleged instances of
misconduct at trial, but do dispute whether these objections were properly preserved by Farr’s
motion in limine. LaBombard argues that, in this situation, the motion in limine did not preserve
evidentiary questions for appeal.
In United States v. Kelly, 204 F.3d 652, 655 (6th Cir. 2000), we found persuasive an
unpublished opinion holding that a motion in limine does not preserve evidentiary questions for
appeal:
As a matter of policy, the objection requirement of Fed. R. Evid. 103 is intended
to allow the trial court to fix errors in its decision to admit or exclude evidence on
the spot, thus preventing errors that could easily be alleviated without recourse to
the appellate courts. A pre-trial motion in limine is not as effective a means of
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No. 15-2182, Farr v. Village of New Haven
alerting the trial judge to evidentiary problems as a contemporaneous motion at
trial. This proposition seems particularly true where, as here, the court did not
even rule on the motion in limine. Thus, we find that a motion in limine,
especially one that is not ruled upon, is insufficient to preserve an objection to the
admission of evidence for appeal.
Kelly, 204 F.3d at 655 (quoting Burger v. W. Ky. Navigation, Inc., No. 91-5221, 1992 WL
75219, at *3 (6th Cir. April 15, 1992)).
It is true, as Farr argues, that the district court in Burger did not issue a ruling on the
motion in limine. 1992 WL 75219, at *3. However, in the context of expert witness testimony,
we have found that “if the court’s ruling is in any way qualified or conditional, the burden is on
counsel to raise objection to preserve error,” but distinguished that from a situation in which “the
trial court has made an explicit and definitive ruling on the record of the evidentiary issues to be
decided, and has not indicated that the ruling is conditioned upon any other circumstances or
evidence.” United States v. Brawner, 173 F.3d 966, 970 (6th Cir. 1999).
Here the district court did rule on the motion in limine, but the two written orders and
oral ruling do not appear to be explicit and definitive, nor do they cover all the issues that Farr
raised. Several of the district court’s findings, moreover, were conditional. We review these
unpreserved issues for plain error. To establish plain error, Farr must show an error, that is plain,
and that affects substantial rights. United States v. Olano, 507 U.S. 725, 731–32 (1993).
Not all of the evidentiary issues Farr raises are clear cut, or fall entirely within one of the
court’s rulings. While Farr argues that these errors created a bias against him, resulting in an
unfavorable jury verdict, he has not explained in any detail why the alleged errors affected his
substantial rights. See id. Without more, Farr has not shown error sufficient to warrant a new
trial.
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B. Claimed misconduct to which Farr did object
Farr also points to two other occasions where he did object. LaBombard argues first that
Farr waived these issues by failing to move for a new trial under Federal Rule of Civil Procedure
59. Farr did state that he was moving for a mistrial in a sidebar conference and said that he
would “make a separate motion outside the jury.” It does not appear that he did so at the close of
evidence or after trial. Yet, it is not necessary to determine whether this argument is waived by
Farr’s failure to move for a mistrial; even if preserved, it is insufficient to justify a new trial.
Denial of a motion for a new trial is typically reviewed for an abuse of discretion. United
States v. Pierce, 62 F.3d 818, 823 (6th Cir. 1995). “A new trial is warranted when a jury has
reached a ‘seriously erroneous result’ as evidenced by: (1) the verdict being against the weight
of the evidence; (2) the damages being excessive; or (3) the trial being unfair to the moving party
in some fashion, i.e., the proceedings being influenced by prejudice or bias.” Balsley v. LFP,
Inc., 691 F.3d 747, 761 (6th Cir. 2012) (quoting Holmes v. City of Massillon, 78 F.3d 1041,
1045–46 (6th Cir. 1996)). When a party seeks a new trial based on allegedly improper
comments made by counsel, we will examine:
the totality of the circumstances, including the nature of the comments, their
frequency, their possible relevancy to the real issues before the jury, the manner
in which the parties and the court treated the comments, the strength of the case
(e.g. whether it is a close case), and the verdict itself.
Id. (quoting Mich. First Credit Union v. CUMIS Ins. Soc’y, Inc., 641 F.3d 240, 249 (6th Cir.
2011)). This court may set aside the verdict only “if there is a reasonable probability that the
verdict of the jury has been influenced by such conduct.” Id. (quoting Strickland v. Owens
Corning, 142 F.3d 353, 358 (6th Cir. 1998)).
Farr argues that the “repeated and intentional references to drug use and convictions
regarding drugs was unfairly prejudicial and created an obvious and significant bias . . . which
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then resulted in a verdict against him.” Both instances of alleged misconduct were cured at least
in part when the district court sustained one objection and issued a curative instruction as a result
of the other. These two incidents across a four-day trial are insufficient to show that the trial was
unfair or that the jury reached a seriously erroneous result. Thus, the alleged misconduct does
not warrant a new trial.
III. CONCLUSION
For the reasons discussed above, we find that a new trial is not warranted and AFFIRM
the jury’s verdict.
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