1 NO T R EC OM M EN DE D F OR F UL L- TEX T P UB LIC AT ION File Na me: 09a0606n.06 No. 08-1360 UN ITED STA TES C OU RT OF AP P EA LS F OR THE SI XT H C IR CU IT CHI AVERI

NI , I NC., P lai nt iff-A ppe lla nt , v. FRENCHI E’S FI

NE JEW EL RY, COI

NS & STAMPS, I

NC., Defendan t-Appellee. ON AP P EAL FROM THE UNI TED STATES DI STRI CT COURT FOR THE EASTERN DI STRI CT OF MI CHI GAN

O P I N I O N

Be for e : K

EITH , SU TTON , a nd WH ITE, Ci r c uitJudg e s. WH IT E, CI RCU IT JUD GE . Pl a int if f- Ap pe llan t, Ch iav eri ni , I nc. (C hi ave ri ni) , b ro ug ht t his diversity action ag ainst Fre nchie’ s Fine Jewelry , Coins & Stamps, I nc. (F renc hie’s) a lleg ing that Fr enchie ’s had pur chase d items that be longe d to Chiave rini, that it knew or should have known wer e stolen. The jury

returne d a ver dict in favor of Fr enchie ’s, findi ng that Chiaverini had not shown that it was the rig htful owner of the items. Chiaverini moved for a new trial, contending that the jury ’s verdic t was aga inst the weight of the evidence, and that defe nse counse l had committed misconduct by submitt ing ina dmissibl e evide nce to the jur y . The district c ourt denied Chiaverini’s re quest for relief , and this appea l followed. I. Fr enchie ’s is loc ated in Monr oe, Michig an, and is ow ned and operated by Mary Be netea u and he r so n, B ri an B e ne te a

u. F ro m Marc h 29 to M ay 30 , 2 00 1, De nn is H e a ms s old sc ra p je we lr y , c oin s,Mich. Comp. L aws § 445.484 require s deale rs t o keep a record of eac h transac tion covere d 1 by the ac t for one year. De al er s ar e al s o require d to provide a c opy of the tra nsaction for

m to the

“ a pp ro pr ia te po lic y a g e nc y or sh e ri ff ’s de pa rtme nt. ” Th e tr ans a c tio n f or m r e qu ir e s th e name , d a te of birth, driver ’s license number, a nd fing erpr int of the person c onducting the transa ction.

2 and pr e c iou s g e ms to Fr e nc hie ’s

. He a ms told B ri an Be ne te a u the ite ms he wa s sel lin g be lon g e d to Ga il L itt le , a

nd tha t th e y were bei ngso ld f or the c are of

he r f a the r, Vi to C hia

ve ri ni. He a ms reque sted that the che cks be ma de out to L ittle, and Fr enchie ’s complied with t his reque st. Over the

c ours e of a pp ro xima te ly

e ig ht t ra ns a c tio ns , F re nc hie ’s pa id L itt le ov e r $ 50 ,0 00 fo r je we lr y , c oin s,

and g e ms r e c e ive d f

ro m H e a ms. I n September 2003, Jascha Chiave rini, then the sole owne r of Chiaverini, a cor poration op e ratin g a

pa wn sh op in T ole do , O hio , vis ite d F re nc hie ’s se e kin g inf or matio n a bo ut t he pr op e rt

y it purchase d from Heams. J ascha believed that the i tems Heams sold to Frenc hie’s we re taken by his mot he r, Anne tte Chi a ve ri ni, fr om h is p awn s h o p w i t h o ut a ut h o r i z a tio n s ome tim e be fo re he r d e a th

on Ap ri l 16 , 2 00 1. On

Decemb e r 1 6, 20 04 , Ch iave ri ni f ile d th e ins tant a c tio n a g a ins t F re nc hie ’s , a lle g ingtha

t F re nc hie ’s vio late d M ic hig an’ s Pr e c iou s Me ta ls a nd Ge m D e a le rs Ac t by fai li ngto

rec ord He ams’ d

r iv e r ’ s li c e n s e and f

inge rprints, failing to complete the r equire d transac tion form and file it with the police, and by unlawfully

conver ting mer chandise that it knew was stolen. 1 At trial, the par

ties prese nted testimony

from Ga il L ittle, her brother J ascha Chiaverini, two former employ ees of Chiaverini’s pawn shop, Denny Heams, B rian Be netea u, Mary Be neate au, and

a state po lic e of

fi c e r who c on du c te d a

n inve sti g a tio n r e g ard ingth e ite ms s old by He a ms t o Fr enchie ’s. The jury

failed to find that Chiave rini was the “rig htful owner of any of the prope rty

at issue in this case,” a

nd the district court e ntere d judgme nt in f avor of Fr enchie ’s. Chiaverini filed a motion for a ne w t rial and judgment notwithstanding the ver dict, both of which the district c ourtChiaverini’s mo tion be fore the district court wa s a re quest for a “judg ment n.o.v.” Howe ver, 2 it did not move for judgme nt a s a matter of law unde r Rule 50 bef ore the case was submitted to the jury . Thus, its request for a “judg ment n.o.v.” must be construe d as a Rule 59 motion.

3 denied. On appea l, Chiaverini arg ues t hat i t is entitled to a new trial beca use: (1) the jury ’s ver dict

was a g ainst the weig ht of the evide nce, a nd (2) de fense couns e l c o mm itted misconduct by submitt ing inadmissible evidence to the jury

. II. Rule 59 permits a par

ty to reque st a new tria l “af ter a jury trial, for any

rea son for whic h a

ne w t ri a l ha s h e re tof

or e be e n g ra

nte d in an a c tio n at la

w i n f e de ra l c ourt .” F e d. R. C iv. P.

2 59 (a )( 1) (A ). Th is c ourt

ha s h e ld t

hat [A] ne w tri a l is wa

rr ante d wh e n a jur

y ha s re a c he d a

“ se ri ou sly

e rr on e ou s r e su lt” as evidenc ed by : ( 1) the verdic t be ing a g ainst the weig ht of the evide nce; ( 2) the dama g e s b e inge xce ssi ve ; or (3 ) t he tr ia l be ing un fa ir to the mov ingpa rt y in s ome fashion, i.e. , th e pr oc e e din g s b e inginf lue nc e d b y

pr e jud ic e or bia s. Holmes v . City of Massill on , 78 F.3d 1041, 1045- 46 (6th Cir. 1996). This court re views a district c ourt’s dec ision to deny a motion f

or a new trial for an abuse of discretion. B a rn es v . O we n s - Co rn in g F ib e r g la s Corp. , 2 01 F.3d 815, 820 ( 6th Cir. 2000). Acc ording ly , this court may only reve rse suc h a dec ision if it has “a definite a nd firm conviction that the trial cour

t com m i tted a cle ar e rror of judg ment.” Id. (citation and inter nal quotation marks omitted). This court has e x plained: I n r uli ngup on

a mot ion fo r a new tr ia l ba se d o n th e g ro un d th a t th e ve rd ic t is ag ainst the weig ht of the evide nce, the trial court must com p ar e the opposing proofs, we igh the evidenc e, and set aside the ve rdict if it is of the opinion that the ve rd ic ti s a g a i n s tt h e c l e ar w e i g h to f

t h e e v i d e n c e . I ts h o u l d

d e n y t h e m o t i o nif the ver dict is one which c ould re as o n ably have be en re ache d, and the ve rdictL y nett Smit h, J ascha ’s g irlfriend a nd a pawn shop employ ee, te stified that the pawn shop 3 had an e laborate proc edure of placing “buy tag s” on all merc handise purc hased by the shop. The buy tag contained a number that corr esponded with a ca rd, and the car d contained inf ormation about the person who sold the item (na me, driver ’s license number, a ddress, birthdate ), and a desc ription of the ite m. 4

should not be considered unreasona ble s imply beca

use di ffe rent infe renc es and conclusions could have been dr awn or beca use other r esults are more re asonable

. Strickland v. Owens Corning , 142 F.3d 353, 357 ( 6th Cir. 1998) ( qu o t i n g J.C. W

yck off &Assocs., Inc. v . Standard Fire Ins. Co., 936 F.2d 1474, 1487 ( 6th Cir. 1991)). I n th e ins tant c a se , t he most c on vin c inge vid e nc e that so me of the ite ms b e lon g e d to Chi a ve ri ni w a s th e pr e se nc e of “ buy ta g s” on so me of the ite ms G a il L itt le g a ve to D e nny He a ms. 3 H o w e v e r , t h e r e w a s n o e v i d e n c e i n d i c a t i n g w h i c h p r o p e rt y h a d b u y t a g s an d w h i c h d i d

n o t

. In addition, the items sold included coin proof sets that wer e not a lleg ed to ha ve come from the store , and we re c lear ly

part of Annette’ s persona l c ollection. No documentation establishing Chiaver ini’s

owner ship of any

of the items sold to Fre nchie’ s was provide d to the jury . Finally , the jury was pres en t ed wi t h conflictingevidenc e conc erningowner ship of the pawn shop. The jury may have found that Annette was the owner of the pawn shop until March 20, 2001, whe n a bill of sale wa s executed g iving J ascha Chiaverini full owner ship of t he shop. The items were taken fr om the store be fo re that date and

the jur y c ou ld h a ve c on c lud e d th a t A nn e tte wa s the ri g htf ul o wn e r o f t

he ite ms

a t the tim e sh e g a ve the m to L itt le

. Thus , w e c ann ot s ay tha t th e tr ia l c ourt

a bu se d it s d isc re tio n in fi nd ingthat th e ju ry ’s ve rd ic t w a s n ot a g a ins t th e we ig ht o f t he e vid e nc e , a

nd de c lin ingto g ra

nt a

ne w tri a l on

that ba sis

. Chiaverini’s sec ond g round for appea l asserts that it is entitled to a new trial ba sed on mis c on du c t of

de fe ns e c ouns e l. C hiaver ini po int s to se ve ra l e xce rp ts o f w itn e ss t e sti mony that it5

a sse rt s we re ina dmi ssi ble : (1) te sti mony fr om B ri a n Be ne te a u sta tin g that Jas c ha

Chi a ve ri ni t old

him he had been in prison; (2) an imprope r statement by defe nse counse l that J ascha had bee n imprisoned for six y ear s; and (3) te stimony by Detec tive Mey er that he was unable to conc lude who owne d the proper ty that was sold to Fr enchie ’s in the S pring of 2001. Chiaverini contends that this t estimony was “ part of a

deter mined eff ort by defe nse counse l to ge t this i nadmissible evidence to prejudice the jury .” As stated a

bove, this court re views a district court’s denial of a motion for a new tria l for abuse of discretion. Duringthe direc t examination of the first witness, counsel for Chiaverini aske d Br ian B e ne te a u, on e of the ow ne rs of

F re nc hie ’s , th e fo llo wi ngqu e sti on s: Attor ney Roger s : A n d

d o y o ur e c a l l w h e nJ a s c h a C h i a v e r i n i s h o w e d

u p ? I g uess it would have be en in 2— nea r the e nd of 2003, af

t er h is father ’s death, wi th a c op y of tho se re c e ipt s? Witness Beneteau : I

re c a ll. Roger s : And what wa s y our conve rsation with J ascha at that time? Beneteau : H e tol d us he ha d jus t g ott e n o ut o f p ri so n a nd that w he n h e wa s in prison, his parents we re - -- Roger s : Your Honor, I ’m g oing to objec t to one ty pe of thing and move to strike his comment about prison. The Court : Well, he was respondingto y our question. Meye rs (def

ense c ounsel): He a sked the que stion and he’s relaying the information supplied by

his client as par

t of the answe r. The Court : O k ay. Meye rs : There ’s no objection ther e. The Court : Well, i t’s y our witness. So I g uess i f y ou want to have the question and answ er wi t h d ra wn , we can g rant your re quest to strike it. The jury will be instructed to disreg ard it. Roger s : Yes, y our honor. The Court : Go ahea d. Roger s : The—we ll, now that you all have be en tainted—pr obably then continue on, Your Honor . Idon’t see a ny way the jury in a prope r manne r ca n ignor e the statement. L et me g o ahea d and question him. So— The Court : Counsel, could y ou find a c onvenient time to brea k in the next— Roger s : Well, I g uess this would be a convenient time to brea k, Your Honor , and we ’ll come ba ck af

ter lunch.6

After lunch, B enete au’s testimony resumed: Roger s : Now, Mr. B enete au, just as we were ending up befor e the brea k Ihad a sk e d you

to t a lk a bo ut w he n Jas c ha

Chi a ve ri ni h a d c om e to vi si t y ou in l a te 2003, and I

believe you testified he told y ou he had just gotten out of jail and wh a t? I s th a t c or

re c t? Witness Beneteau : C o n t i nu e ? Roger s : I s that what he told y ou? Beneteau : H e tol d u s h e ha d g ott e n o ut o f p ri so n. W hi le he w a s in pr iso n h is pare nts had operated a store and whe n his father passed awa y —and I ’m trying to, ag ain, this is a long time a g o, but when they wer e at his father ’s house they found rec eipts from our store , which ar e the one s, of cour se, y ou had identified, a nd he c a me in a nd a sk e d u s if

his fathe r h a d r e c e ive d th e pro ceeds fr om t he se sa le s. An d a t that tim e we g a ve him the c op ie s o f t he re c e ipt s th a t w e ha d, we g a ve him copies of the chec ks that we ha d, and we also order ed more chec ks from the ba nk that we did not ha

ve that would be able to show the endor sements on the bac k of the c he c ks

. Roger s : N ow , y ou

sa id h e ha d tol d y ou

he ha d ju st g ott e n o ut o f j a il. Wou ld i t surprise you that Mr. Chiaverini has ne ver be en in jail since 1993? Beneteau : I ’m not sure why he would have broug ht that up, to tell y ou the truth. He sa id he was a

model prisoner. Roger s : So y ou

are a sk ingthi s jury

to b e lie ve that te n y e ars late r h e wo uld c ome in a nd te ll you he ha d ju st g ott e n o ut o f j a il? Beneteau : And told us he was a mode l prisoner. Roger s : Now, wouldn’t y ou in fac t bring up that sort of st atement be cause y ou wo uld lik e to a ssa ssi nate the c ha ra c te r o f Ja sc ha

Chi a ve ri ni? Beneteau : No, sir. I broug ht that up beca use y ou asked me what he sa id when he ca me into the store. Roger s : T hat’ s w hat he sa id, and Iho pe the jur

y no te s it

. Chi a ve ri ni a lso po int s to an exc ha ng e be tw e e n de fe ns e c ouns e l and Ga il L itt le , w he re L itt le

was a sked if she ha d ever h ad t o ca l l the police on he r brother , and she r esponded, “ Oh, y eah. Def initely .” The district c ourt did not a llow L ittle to testi fy about any

of the de tails surrounding her previous conf

lict with he r brother, but a llowed testimony related to “the f act ther e [was] bad blood be tw e e n th e wi tne ss a

nd he r b ro the r. ” De fe ns e c ouns e l next ask e d L itt le if Jasc ha ha d e ve r g on e to prison, and counse l for Chiaver ini objected.7 Roger s : Well, wait a second, Your Honor. Defense counsel Meye rs : Well, he made— Roger s : My

objection was to his question she had called police on him and not the situation. I said, y ou know, he has not be en any wher e as w e will g et into[ .] He' s [not ] been in jail since 1993. The Court : O k ay. Rogers : H e h a s n ' t e v e nh a d an y th in g o th e r

th ana dr iv e r s —

Ith ink improper license plate ty

pe of thing is the onl y

even tr aff ic offe nse that he' s had since 1993. The Court : What relevanc e does that have to this case ? Meye rs : T he re le va

nc e is o ng oin g unne c e ssa ry hara ss ment

/li tig a tio n o f t

he se events. Nowcounsel' s willing t o stipulate his client did six y ear s in prison. I don' t need to g o any

further

. Roger s : Objection, Your H onor. That was totally inadmissible. I t was alre ady i nt h e r e i mp r o p e r l y. The Court : I ' ll i ns tr

uc t th e jur

y to d isr e g ard

thi s matter and I 'll ask c ouns e l to not g o int o th e s u

b je c t a n y f u rth e r . A n y

th in g h a v e [s ic ] t o d o w it h a ll e g ed criminal cha

rg es is not, in my

view, re levant to this case. T he fac t the re ma y be bad blood betwe en the witness an d her br other, that’s a nother matter . But any thing h av i n g t o d o with any criminal cha

rg es is not releva

nt to this case . I w o u l d i n s t r u c tt h e j u r

y t o d i s r e g ar d

t h a tt e s t i m o n y. Chiaverini contends th a

t t h e a b o v e e xc erpts demonstrate that def ense c ounsel was attempting to “circ umvent the Fe dera l Rules of Evidence , Rule 609.” Rul e 60 9 s tate s: (a) Ge neral Rule — For the purpose of a t t a cking the c haracter for tru thf uln ess o f a w itn ess , (1) evidenc e that a w itness . . . has bee n convicted of a cr ime . . . if the c ri me wa s p un ish a

ble

. . . in e xce ss o f o ne y e ar . . . . s ha ll b e a dmi tte d if the cour t determines that the probative value of admitting this evidence outweig hs its prejudicial eff ect to the a ccuse d . . . . (b) Tim e lim it . E vid e nc e of a c on vic tio n und e r thi s r

ule is n ot a dmi ssi ble if a period of m ore than ten y ear s has elapsed since the date of the conviction or of the re lease of t h e wi tness from the c onfinement imposed for that conviction, whicheve r is the later

date, unless the c ourt deter mines, in the i ntere sts of justice, that the probative value of the conviction s u p p o rted by specific fac ts and c ir c ums tanc e s su

bs tanti a lly

ou tw e ig hs its pr e

jud ic ia l e ff

e c t. Fe d. R. Evid. 609 (emphasis adde d).8

Chiaverini fa ils to acknowledg e that evidence r eg ardingJ ascha ’s time in prison was not introduced to attack his char acte r or c redibility . The jury was not told what cr ime J ascha committed, nor any of t he facts s urrounding his conviction. Rather, the jury simply hear d ref ere nces to the f

act that J ascha

had spent time in prison. None of those ref ere nces a ppear to have be en made to “attac k his char acte r for truthfulness.” The fac t that J ascha was not pre sent at the pa wn shop for six y ear s beca use he w as in prison, and that duringthat time his parents oper ated the pa wn shop, was r eleva

nt to the fac tual dispute over who owned the shop be fore the bill of sale wa s executed. Chiaverini contends that Br ian Be netea u’s testimony that J ascha told him in 2003 that “he ha d ju st g ott e n o ut of pr iso n” wh e n he ha d ac tua lly be e n re le a se d ten y e ars e arl ie r is so im pla us ibl e that it demonstrates that defe nse counsel coac hed his witness to lie as a way to circumve nt the Rules of Evidenc e. F or support, Chiaver ini points to Sanders-El v. W ence wicz , 987 F.2d 483, 484 ( 8th Cir. 1993), a c ase from the Eig hth Circ uit involvi ng attorney misconduct. I n Sa nd

e rs-El , wh e n d e fe ns e counsel wa s cross-e x amining the plainti ff i n a § 1983 ca se (a lleg ing police brutality), he “dra matically dropped a

leng thy computer printout in front of the jury .” The computer pr intout was “about 10 f

eet of paper ,” and the Eig hth Circuit found that “[t] he manife st intent of the conduct wa s to arouse the prejudice s of the jury by leadingit to believe Sander s-El had the c onviction rec ord of a veteran voc ational cr iminal. Counsel conducted this piece of theatrics despite pre trial discussions in which the cour

t indicated its intention not t o admit such evidenc e.” Id

. I n the ca se at ha

nd, it is pure conjec ture that de fense counsel c oache d Be netea u to inject perjure d testimony at t ri b uting a statement to J ascha . There is no evidence that Be netea u was not g iving truthful testimony ; it is quite possible that Jascha did in fact tell B enete au that he ha d been in prison, as a wa

y of explaining the ow nership and control of his pawn shop, a nd why he wa s9

loo kin g fo r i te ms that he a lle g e d w e re sto le n b y his mot he r ye ars be fo re . Th e dis tr ic t c ourt pr op e rl y de nie d Ch iave ri ni’ s mo tio n f or a ne w tri a l on

thi s b a sis

. Chiaverini also cla im s th a t d e f e n s e c ounsel’s statement that Jascha “ spent six y ear s in prison” during Gail L ittle’s te stimony constitutes misconduc t. Howeve r, we defe r to the trial co u rt ’s

a s s e s s m e n to f

t h e e f f e c to f t h e c o m m e n t , s p e c i f

i c a l l y, t h a ti th a d

n o e f f e c to nt h e j u r

y. L astly , Chiaverini ar g ues that defen s e counsel improperly elicited inadmissible testimony from De tective Da

vid Mey er. Chiave rini ag ain asser ts that this consti tuted misconduct on the par t of def ense co u n sel, and a lso argues that the district cour t incorre ctly

admitted this testim ony

over its objection. Af te r t he c los e of Chi a ve ri ni’ s ca se , Fr e nc hie ’s c a lle d Mic hig an St a te Pol ic e Of fi c e r D a vid Mey er. B efor e he w as able to testify , Chiaverini made a n objection, which the distr i ct court

overr uled, stating that it would allow the testimony and “r ule on objections as they

come up.” Mey er testified that he investig ated whe ther B rian B enete au’s pur chase of the items from He ams violated Michig an’s Pre cious Metal Ac t. The investig atio n b ega n i n J anuar y 2006, and in Marc h 2006, Me y e r i nte rvie we d Jas c ha Chi a ve ri ni, his lawy e r G e or g e Rog e rs , a nd B ri an B e ne te a

u. He a lso examined some transcr ipts f ro m a ci vil procee ding that were provided by Geor g e Rog ers. The following excerpt is the testimony that Chiaverini cha lleng es as inadmissible: M e ye r s (def

ense c ounsel): B ased on your investig ation, did y ou ever deter mine who actua lly owned this proper

ty that was a lleg ed to be stolen? Of f. Meyer : N o, Idid

n' t. Meye rs : Iappre ciate that y ou told us Mr. Chiaverini claimed that the pr operty was stolen. Ba sed on y our investigation a s an office r, did you ever deter mine whether

or not e ve n th e pr op e rt

y wa s a c tua lly

e ve r s tol e n o r n ot? Of f. Meyer : N o, Idid

no t. Roger s : Objection, Your H onor. The Court : Counsel, what was the obje ction?10 Roger s : You know, this witness has no persona l knowledg e of the facts, and in fa ct what he’s d oin g is h e ’s a sk e d to be su bs tit ute [sic ] fo r whate ve r i nf or matio n h e ha s, is substitut e his opinion for the jury in a criminal case , which has g ot a diffe rent standa rd of proof

. Meye rs : Ididn't a sk— Roger s : Imean, that’ s what in eff ect he ' s being asked f

or. He ’s b eing asked opinion based a s an investig ator, whic h would be basic ally we have a jury that' s conductingan investigation with evidence a nd people under oath being br oug ht to court, and pursua nt t o t h e r u l es o f ev i d en ce , an d s o fo rt h , t h at ar e br o u gh ti nfr o n to f t h e C o u rt , an d Id o n 't se e wh e re his inv e sti g a tio n that he ha s n o f ir sth and kn ow le dg e of

wo uld be re le va nt t o the du ty and the e va luatio n o f t

he jur y ’s

— The Court : What is y our last question to the witness that y o u wa n t h im to answer? Couns e l, w ou ld you

re state y our q

ue sti on a g a in? Wha t is it? Meye rs : My question to the office r was based on his investigation of the matter, did he as a p o l i ce o ff

i ce r e v er d et erm i n e w h et h er

o r n o t t h e pr o p er t y

i t s el f w as s t o l en . Id i dn 't ask him to make a judgme nt c all on civil liabilit y , criminal liability , or—I ' m asking about an inve sti g a tio n in sti tut e d b y Chi a ve ri ni. The Court : Well, but are y ou asking him to st ate a n opinion? Mr M eyer s : I ' m asking for his opinion as a police office r of 29 y ear s, having done tho us and s o f i nv e sti g a tio ns . B e lie ve he c a n a ns we r t hat. The Court : Well, all rig ht. Well, we' ll take his opinion, then, at this point whether as re su lt o f h is i nv e sti g a tio n h e c a me to a ny c on c lus ion . A dmo nis h th e jur y th at thi s is strictly an opinion, and the jury

is free to disreg ard it if they wish. Go ahe ad. Mr. M eyer s : I ' m goingto ask it ag ain, sir, base d on y our y ear s of experienc e as a police office r and thousands of

case s that y ou' ve done— The Court : Woul d y ou just state y our question please

. Mr. M eyer s : Could you actua lly —did you make a dete rmination as to whether or not the prope rty

was e ver a ctually

stolen? Of f. Meyer : Idid not make a de termination that it was stolen. Even a ssuming, a

r g u e n d o , that the testimony

provided by

Detec tive Mey er w as inadmissible, there is no evidenc e of bad faith on the part of defense counsel, as Chiaverini contends. I n addition, ina dmi ssi ble e vid e nc e is n ot i n it se lf g ro un ds fo r a

ne w tri a l. Rul e 61 make s c le ar t hat “ no e rr or

in admitting or e x cluding evidenc e . . . is g round for g rantinga new

trial.” F ed. R. Civ. P. 61. I n order to be entitled to a new

trial, the moving p ar t y

must show that the trial was unfa ir, and that the proce eding s were influence d by prejudice or bias. Holmes , 78 F.3d at 1046. The cour t made c lear to t he jur y tha t D e te c tiv e Mey e r w a s si mpl y e xpre ssi nghis op ini on s and that th e jur

y wa s f re e to11

dis re g ard it. We s e e no re a so n to qu e sti on the dis tr ic t c ourt ’s de te rm inatio n th a t th e te sti mony did not improperly

impact the jury ’s deter

mination of ownership, a nd there is no indication Detec tive Me y e r’ s te sti mony

re su lte d in

an unf a ir or bia se d tr ia l. III

. Ac c or din g ly , w e a ff

ir m th e de c isi on

of the dis tr ic t c ourt

.