                    United States Court of Appeals
                          FOR THE EIGHTH CIRCUIT
                                  ___________

                                  No. 02-2362
                                  ___________

Kelvin Lamonte Lampkins,             *
                                     *
           Appellant,                *
                                     * Appeal from the United States
     v.                              * District Court for the Eastern
                                     * District of Missouri.
Robert Thompson; Archie Luss, Jr.,   *
                                     *
           Appellees.                *
                                ___________

                            Submitted: April 17, 2003

                                 Filed: July 30, 2003
                                  ___________

Before LOKEN, Chief Judge, HANSEN and RILEY, Circuit Judges.
                             ___________

RILEY, Circuit Judge.

       Kelvin Lamonte Lampkins (Lampkins) claims his constitutional right against
unreasonable search and seizure was violated when federal agents Robert Thompson
and Archie Luss, Jr. (collectively the Agents) stopped him at an airport on July 8,
1993. See Bivens v. Six Unknown Named Agents, 403 U.S. 388, 395-97 (1971).
Lampkins sued the Agents. A jury returned a verdict for the Agents. The district
court1 entered judgment in the Agents’ favor and assessed costs against Lampkins.

      1
       The Honorable Rodney W. Sippel, United States District Judge for the Eastern
District of Missouri.
Lampkins appeals the judgment on six grounds: (1) the district court abused its
discretion by refusing to permit Lampkins to impeach witnesses with summary
judgment affidavits; (2) the district court abused its discretion in denying Lampkins’s
motion for a new trial based on unfair surprise; (3) the district court erred by
submitting special interrogatories related to the defense of qualified immunity; (4) the
evidence is insufficient to support the verdict; (5) conduct by the U.S. Marshals at
trial was inherently prejudicial; and (6) the district court abused its discretion by
taxing costs to Lampkins. After careful review, we affirm the judgment.

I.      BACKGROUND
        On July 8, 1993, Drug Enforcement Administration (DEA) agents received
information that a female, Charlotte Joyner (Joyner), had paid cash for a one-way
ticket to travel from Indianapolis to Los Angeles with a stop-over in St. Louis.
Additionally, Joyner checked no luggage, but carried a denim carry-on and was
accompanied by a black male. Suspicious of drug-related activity, the Agents
watched for Joyner in St. Louis. The Agents did not see Joyner or anyone matching
her description, but they did see a black male, later identified as Lampkins, with a
denim bag near him. The Agents stopped Lampkins as he attempted to board his
connecting flight. The Agents asked Lampkins if they could ask him a few questions.
They blocked his path to the flight and searched him and the bag. The Agents
testified Lampkins consented to the search. Lampkins testified he did not give
consent. Lampkins carried an expired California identification and an airline ticket
issued to Joyner. The Agents also discovered $11,000 cash in the denim bag, upon
which a drug dog alerted to the scent of narcotics. The Agents returned some of the
money to Lampkins, with a receipt for the remainder, and permitted him to leave.
Lampkins sued the Agents for violating his civil rights, arguing they had neither
consent nor reasonable suspicion to stop him at the airport. After a three day trial, the
jury returned a verdict for the Agents.




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II.    DISCUSSION
       A.    Impeachment
       “We review decisions regarding the admissibility of evidence under an abuse
of discretion standard. In balancing the prejudicial effect and probative value, great
deference is given to the district judge’s determination.” United States v. Claxton,
276 F.3d 420, 422-23 (8th Cir. 2002) (citations and quotations omitted).

        Lampkins argues the district court abused its discretion when the court refused
to allow him to impeach, by omission, the Agents with their prior sworn statements
presented in support of their earlier filed motion for summary judgment. At trial, the
Agents testified Agent Luss had seen Lampkins’s airline ticket with the name Joyner
on it before the initial stop. Lampkins complains the Agents failed to mention this
significant information in any deposition or report during nearly nine years of
litigation. According to Lampkins, before trial, the Agents indicated they had seen
only the ticket and not Joyner’s name until after they stopped him.

       When Lampkins’s counsel attempted to impeach the Agents with the prior
sworn statements, the Agents’ counsel objected. The district court determined the
Agents could not be impeached by omission from their summary judgment affidavits
unless the affidavits included a statement that the affidavits contained all of the facts
the declarants knew about the incident, which the affidavits did not. Additionally, the
district court concluded impeachment with summary judgment affidavits would
mislead or confuse the jury.

      Lampkins argues the prior statements should have been admitted for
impeachment under Federal Rule of Evidence 613(b), as prior inconsistent
statements, or admitted under Rule 801(d)(2), as admissions of a party.2 Lampkins


      2
        Lampkins did not raise Rule 801(d)(1), prior statement by a witness; however,
our ruling would be the same.

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argues he was prejudiced because he could not fully impeach the Agents and their
credibility was critical. Lampkins contends the district court ignored the balancing
test required by Cummings v. Malone, 995 F.2d 817, 825 (8th Cir. 1993). In
Cummings, we determined a district court abused its discretion by excluding a prior
inconsistent statement when its probative value outweighed the likelihood of
prejudice. Id. at 824-25 (plaintiff in an excessive force action stated at trial he was
not told the reason for the questioning, although he previously testified he was told
the reason was to investigate a sexual assault). Here, the district court determined the
risk of confusion and misleading the jury substantially outweighed the probative
value of the impeachment because Lampkins had other means–deposition testimony
and police reports–with which to impeach the Agents.

        Lampkins’s counsel did impeach the Agents with their depositions and written
police reports, and argued to the jury (1) the first time counsel heard the Agents’
testimony that Agent Luss saw the name Joyner on Lampkins’s ticket before the
initial stop was at trial and (2) the Agents’ testimony lacked credibility. The district
court explained Lampkins took every other opportunity to tell the jury the Agents’
testimony was not revealed until trial, the jury knew the evidence was not disclosed
until trial, and Lampkins was not prejudiced. We agree. We find no abuse of
discretion in the district court’s balancing of the probative weight of the cumulative
evidence.

       B.     New Trial - Unfair Surprise
       Similar to the argument above, Lampkins argues the district court erred by
failing to grant a new trial because of the unfair surprise of the Agents’ trial
testimony–one agent saw the ticket with Joyner’s name before confronting Lampkins.
“Surprise during trial, by major variance in theory of recovery or defense, undisclosed
until after the trial is underway, is a long-established ground for granting a new trial
motion.” Sanford v. Crittenden Mem’l Hosp., 141 F.3d 882, 886 (8th Cir. 1998)
(medical testimony). However, “[t]he authority to grant a new trial . . . is confided

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almost entirely to the exercise of discretion on the part of the trial court.” Allied
Chem. Corp. v. Daiflon, Inc., 449 U.S. 33, 36 (1980). “We review the district court’s
decision for a clear abuse of that discretion.” Sandford, 141 F.3d at 884. “To win
reversal, the moving party must show that the trial court’s decision to deny the motion
and let the verdict stand results in a miscarriage of justice.” Emmenegger v. Bull
Moose Tube Co., 324 F.3d 616, 619 ( 8th Cir. 2003).

       The government argues Lampkins’s failure to include the depositions in the
record on appeal makes it impossible for the court to determine whether the trial
testimony was new evidence. Further, the government contends Lampkins fails to
show unfair prejudice for two reasons: (1) Lampkins deposed the Agents; and (2) the
testimony was not material, i.e., the officers had reasonable suspicion to approach
Lampkins without the officer seeing the name on the ticket. Finally, the government
argues Lampkins could have moved for a continuance to remedy any unfair surprise
or to strike the testimony from the evidence at trial. Lampkins did neither.

       Lampkins fails to show the verdict is a miscarriage of justice. While the
Agents’ trial testimony may have surprised counsel at trial, Lampkins’s counsel had
the opportunity to depose the Agents before trial and to cross-examine and impeach
them at trial. Lampkins’s counsel focused on the issue during closing argument,
pointing out the importance and the timing of the “new” testimony, opening the
summation with this theme. Lampkins effectively presented his argument on recently
fabricated testimony. Therefore, we find no abuse of discretion in the district court’s
denial of Lampkins’s motion for a new trial based on any unfair surprise related to the
Agents’ trial testimony.

      C.     Special Interrogatories
      Finding a genuine dispute over material facts existed, the district court denied
the Agents’ motion for summary judgment based on qualified immunity. Relying on
Cottrell v. Caldwell, 85 F.3d 1480, 1487-88 (11th Cir. 1996), the district court

                                         -5-
submitted special interrogatories to the jury to resolve factual issues related to
qualified immunity. However, the district court did not direct a verdict on qualified
immunity because it entered judgment on the jury’s verdict for the Agents. Lampkins
raises three issues related to the special interrogatories: (1) the special interrogatories
involved the defense of qualified immunity, which did not survive the trial; (2) the
special interrogatories were inadequate, confusing and misleading to the jury; and (3)
the Agents’ submission of the special interrogatories was untimely.

       Generally, we review a district court’s jury instructions for an abuse of
discretion. Bennett v. Hidden Valley Golf & Ski, Inc., 318 F.3d 868, 873 (8th Cir.
2003). However, “[a]bsent plain error, appellants must raise specific objections to the
form or content of jury instructions, including special interrogatories, before the
district court in order to preserve such matters for appeal.” Horstmyer v. Black &
Decker, (U.S.), Inc., 151 F.3d 765, 770 (8th Cir. 1998).

      As a threshold matter, Lampkins argues that, because the qualified immunity
defense does not survive trial, special interrogatories related to that defense are
improper per se. Although procedurally unusual, the qualified immunity defense is
not waived or lost if a case proceeds to trial. See Hill v. McKinley, 311 F.3d 899, 902
(8th Cir. 2002) (qualified immunity defense raised in answer not waived when first
reasserted in post-trial motion). Since the qualified immunity defense persisted,
special interrogatories related to that defense were not improper per se.

       Lampkins contends the special interrogatories confused and misled the jury
because the special interrogatories did not satisfy the Agents’ stated objective for
their use–resolving the disputed material facts, which precluded summary judgment.
Specifically, Lampkins complains the special interrogatories failed to require a
finding as to the color of the carry-on bag or whether the Agents saw the airline ticket
with Joyner’s name before or after the stop. Lampkins contends the special
interrogatories were confusing because the questions distracted the jury from the

                                           -6-
dispositive issue of whether the Agents had reasonable suspicion to seize Lampkins
and his luggage, and the interrogatories led the jury to believe those factual issues
were all that were necessary to determine liability. Lampkins also argues the special
interrogatories were misleading because the interrogatories were read to the jury
before the jury determined liability, leading the jury to believe its answers to the
special interrogatories mandated the verdict.

       Finally, Lampkins argues the Agents untimely submitted the special
interrogatories. The Agents submitted the special interrogatories on the first day of
the three-day trial, which was twenty days after the scheduling order deadline.
Lampkins argues the late submission prejudiced him. The Agents contend the special
interrogatories were a compromise after an earlier jury instruction related to qualified
immunity was stricken. The Agents also assert several jury instructions were
rephrased or changed during the course of trial; therefore, no prejudice to Lampkins
existed.

       The record reflects that, when Lampkins objected to the late submission of the
special interrogatories, the trial court heard argument and stated it would not rule on
the use of the special interrogatories until later in the day or the next day in order to
allow Lampkins time to rephrase or object to specific portions. The trial court heard
additional argument during an instruction conference at the end of the second day.
Lampkins again argued the special interrogatories were “inadequate,” and stated he
had not drafted a replacement, even though there were “numerous” questions that
should be asked. The district court stated it would review the instructions overnight
and any additional interrogatories or rephrasing could be incorporated the next day.
On the morning of the third day of trial, when the trial court asked for comments and
changes, Lampkins’s counsel stated, “We would just reiterate each of the objections
that we offered yesterday.” Lampkins’s counsel did not, however, offer any changes
or additional interrogatories.



                                          -7-
       Although Lampkins objected generally to the special interrogatories as
“inadequate, confusing and misleading,” he failed to follow the district court’s
invitation to make revisions or additions to the special interrogatories before jury
submission. Since Lampkins failed to make specific objections, we review the special
interrogatories for plain error. See Horstmyer, 151 F.3d at 770-71.

       The special interrogatories are a set of seven yes/no questions asking whether
the Agents were acting on a tip and what information they had, including consent,
when the Agents searched Lampkins’s bag. We can discern no plain error seriously
affecting the fairness, integrity or public reputation of the judicial proceedings based
on the interrogatories. Under the circumstances, the district court did not abuse its
discretion in allowing the special interrogatories, even though they were first offered
on the first day of trial. As the district court noted, the drafting of jury instructions
during a trial is sometimes an evolutionary matter. The district court granted
Lampkins opportunities to argue the merits of, and make changes to, the special
interrogatories on each of the three days of trial before submitting the questions to the
jury.

        D.    Sufficiency of the Evidence
        Lampkins contends he was entitled to a new trial because the Agents lacked
credible evidence supporting their defense. We review a denial of a motion for new
trial for abuse of discretion, because the district court is in a superior position to hear
testimony and observe the demeanor of witnesses during trial. Jones v. TEK Indus.,
Inc., 319 F.3d 355, 358 (8th Cir. 2003). “The grant of a motion for a new trial is
inappropriate unless ‘the verdict is against the weight of the evidence and [ ] allowing
it to stand would result in a miscarriage of justice.’” Id. (citation omitted) (alteration
in original). Lampkins argues the Agents’ testimony was so unbelievable and
inconsistent that the Agents’ testimony should have been disregarded, particularly
with regard to the timing of discovering the name on the airline ticket. Lampkins and
the Agents, however, presented conflicting testimony on material issues. The

                                           -8-
credibility determination was well within the province of the jury. Our review of the
record convinces us the district court committed no abuse of discretion when denying
the new trial motion, and the verdict was not a miscarriage of justice.

       E.     United States Marshals’ Conduct
       We review a trial court’s security decisions for abuse of discretion, according
the district court broad discretion. United States v. Darden, 70 F.3d 1507, 1533 (8th
Cir. 1995). The burden of affirmatively demonstrating prejudice from security
measures rests on the party challenging those measures. Id.

      [N]o person should be tried while shackled and gagged except as a last
      resort. Not only is it possible that the sight of shackles and gags might
      have a significant effect on the jury’s feelings about the defendant, but
      the use of this technique is itself something of an affront to the very
      dignity and decorum of judicial proceedings that the judge is seeking to
      uphold.

Illinois v. Allen, 397 U.S. 337, 344 (1970) (criminal trial with obstreperous
defendant).

      Lampkins was incarcerated at the time of trial on an unrelated conviction. He
complains that, although he was in civilian clothes, the presence and conduct of the
U.S. Marshals prejudiced him in the eyes of the jury. Specifically, the marshals
changed shifts during the proceedings, sat between Lampkins and the jury during his
testimony, sat behind Lampkins at all other times (at times inching closer and closer
to him), and talked disruptively during trial. Lampkins argues that, due to the
marshals’ conduct, he did not receive a fair and impartial trial.

     The Agents disavow any untoward activity by the marshals. Evidence of any
improper conduct is absent from the trial transcript. Also, the Agents point out
Lampkins did not seek, before or during trial, a limiting instruction on the presence


                                         -9-
of security. The Agents suggested Lampkins participate through videoconferencing,
but Lampkins demanded he be present, without suggesting alternative security
arrangements.

       The district court denied Lampkins’s motion for a new trial, noting Lampkins’s
incarceration required certain restraints on his freedom. The district court also noted
the marshals were not conspicuous, wore business attire, and behaved as others in a
courtroom would behave. Lampkins was not shackled or “escorted” by the marshals
in front of the jury.

        In the context of a criminal trial “[i]t is possible for security measures
employed during a trial to be so ‘inherently prejudicial’ that they deprive a defendant
of the right to an impartial jury.” United States v. Darden, 70 F.3d at 1533 (quoting
Holbrook v. Flynn, 475 U.S. 560, 570 (1986)). A civil litigant shares such a right to
a fair trial. See Davidson v. Riley, 44 F.3d 1118, 1122-26 (2d Cir. 1995) (prejudice
caused by plaintiff and his witness appearing in handcuffs and leg-irons, without a
cautionary instruction). Nevertheless, not all security measures, even where they
single out a party as potentially dangerous or a flight risk, are unconstitutionally
prejudicial. Darden, 70 F.3d at 1533.

       Having reviewed the record, we conclude the district court did not abuse its
broad discretion to determine what security provisions to employ during the trial.
While Lampkins is not a criminal defendant in this matter and was not accused of
being part of “an extraordinarily violent criminal enterprise,” as were the defendants
in Darden, Lampkins was an incarcerated felon with convictions for drug and firearm
possession. The district court clearly had discretion to implement the relatively minor
security measures imposed based on the circumstances of the case, and was in a better
position to observe the marshals’ conduct. Further, we conclude Lampkins failed to
meet his burden of affirmatively demonstrating the security measures or the marshals’
actual conduct unfairly prejudiced him in front of the jury.

                                         -10-
       F.     Taxing Costs
       Because Lampkins is indigent and incarcerated, he argues the district court
abused its discretion in awarding costs to the Agents. See Zotos v. Lindbergh Sch.
Dist., 121 F.3d 356, 363 (8th Cir. 1997) (standard of review). Lampkins contends the
amount taxed works an economic hardship on him. He also contends the twenty
dollars in copying costs assessed were unsupported by documentation.

       A prevailing party is ordinarily entitled to recover costs. Fed. R. Civ. P. 54(d);
see 28 U.S.C. § 1920. The Agents initially sought $9310.90 in costs. The district
court denied the costs associated with Lampkins’s transportation to trial ($7747) and
reduced other costs. The district court awarded $1037.92 for deposition transcripts
and copying. The district court further recognized Lampkins would have a difficult
time paying the costs due to his incarceration, but correctly noted an indigent prisoner
is not immune from an assessment of costs. See 28 U.S.C. § 1915(f)(2) (assessing
costs against prisoners). Because the district court properly considered Lampkins’s
indigency and incarceration before assessing costs, the district court did not abuse its
discretion in taxing costs against Lampkins.

III.  CONCLUSION
      For the reasons stated above, we affirm the district court’s entry of judgment
on the jury’s verdict and assessment of costs.

       A true copy.

             Attest:

                 CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.




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