                NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                           File Name: 09a0606n.06

                                            No. 08-1360                                    FILED
                                                                                       Aug 27, 2009
                           UNITED STATES COURT OF APPEALS                        LEONARD GREEN, Clerk
                                FOR THE SIXTH CIRCUIT

CHIAVERINI, INC.,

       Plaintiff-Appellant,                               ON APPEAL FROM THE UNITED
                                                          STATES DISTRICT COURT FOR THE
v.                                                        EASTERN DISTRICT OF MICHIGAN

FRENCHIE’S FINE JEWELRY, COINS                                          OPINION
& STAMPS, INC.,

       Defendant-Appellee.


Before: KEITH, SUTTON, and WHITE, Circuit Judges.

       WHITE, CIRCUIT JUDGE. Plaintiff-Appellant, Chiaverini, Inc. (Chiaverini), brought this

diversity action against Frenchie’s Fine Jewelry, Coins & Stamps, Inc. (Frenchie’s) alleging that

Frenchie’s had purchased items that belonged to Chiaverini, that it knew or should have known were

stolen. The jury returned a verdict in favor of Frenchie’s, finding that Chiaverini had not shown that

it was the rightful owner of the items. Chiaverini moved for a new trial, contending that the jury’s

verdict was against the weight of the evidence, and that defense counsel had committed misconduct

by submitting inadmissible evidence to the jury. The district court denied Chiaverini’s request for

relief, and this appeal followed.

                                                  I.

       Frenchie’s is located in Monroe, Michigan, and is owned and operated by Mary Beneteau and

her son, Brian Beneteau. From March 29 to May 30, 2001, Dennis Heams sold scrap jewelry, coins,


                                                  1
and precious gems to Frenchie’s. Heams told Brian Beneteau the items he was selling belonged to

Gail Little, and that they were being sold for the care of her father, Vito Chiaverini. Heams

requested that the checks be made out to Little, and Frenchie’s complied with this request. Over the

course of approximately eight transactions, Frenchie’s paid Little over $50,000 for jewelry, coins,

and gems received from Heams.

       In September 2003, Jascha Chiaverini, then the sole owner of Chiaverini, a corporation

operating a pawn shop in Toledo, Ohio, visited Frenchie’s seeking information about the property

it purchased from Heams. Jascha believed that the items Heams sold to Frenchie’s were taken by

his mother, Annette Chiaverini, from his pawn shop without authorization sometime before her death

on April 16, 2001. On December 16, 2004, Chiaverini filed the instant action against Frenchie’s,

alleging that Frenchie’s violated Michigan’s Precious Metals and Gem Dealers Act by failing to

record Heams’ driver’s license and fingerprints, failing to complete the required transaction form and

file it with the police, and by unlawfully converting merchandise that it knew was stolen.1

       At trial, the parties presented testimony from Gail Little, her brother Jascha Chiaverini, two

former employees of Chiaverini’s pawn shop, Denny Heams, Brian Beneteau, Mary Beneateau, and

a state police officer who conducted an investigation regarding the items sold by Heams to

Frenchie’s. The jury failed to find that Chiaverini was the “rightful owner of any of the property at

issue in this case,” and the district court entered judgment in favor of Frenchie’s. Chiaverini filed

a motion for a new trial and judgment notwithstanding the verdict, both of which the district court



       1
         Mich. Comp. Laws § 445.484 requires dealers to keep a record of each transaction covered
by the act for one year. Dealers are also required to provide a copy of the transaction form to the
“appropriate policy agency or sheriff’s department.” The transaction form requires the name, date
of birth, driver’s license number, and fingerprint of the person conducting the transaction.

                                                  2
denied. On appeal, Chiaverini argues that it is entitled to a new trial because: (1) the jury’s verdict

was against the weight of the evidence, and (2) defense counsel committed misconduct by submitting

inadmissible evidence to the jury.

                                                   II.

       Rule 59 permits a party to request a new trial “after a jury trial, for any reason for which a

new trial has heretofore been granted in an action at law in federal court.”2 Fed. R. Civ. P.

59(a)(1)(A). This court has held that

            [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.

Holmes v. City of Massillon, 78 F.3d 1041, 1045-46 (6th Cir. 1996).

       This court reviews a district court’s decision to deny a motion for a new trial for an abuse of

discretion. Barnes v. Owens-Corning Fiberglas Corp., 201 F.3d 815, 820 (6th Cir. 2000).

Accordingly, this court may only reverse such a decision if it has “a definite and firm conviction that

the trial court committed a clear error of judgment.” Id. (citation and internal quotation marks

omitted).

       This court has explained:

            In ruling upon a motion for a new trial based on the ground that the verdict is
            against the weight of the evidence, the trial court must compare the opposing
            proofs, weigh the evidence, and set aside the verdict if it is of the opinion that the
            verdict is against the clear weight of the evidence. It should deny the motion if
            the verdict is one which could reasonably have been reached, and the verdict



       2
         Chiaverini’s motion before the district court was a request for a “judgment n.o.v.” However,
it did not move for judgment as a matter of law under Rule 50 before the case was submitted to the
jury. Thus, its request for a “judgment n.o.v.” must be construed as a Rule 59 motion.

                                                         3
           should not be considered unreasonable simply because different inferences and
           conclusions could have been drawn or because other results are more reasonable.

Strickland v. Owens Corning, 142 F.3d 353, 357 (6th Cir. 1998) (quoting J.C. Wyckoff & Assocs.,

Inc. v. Standard Fire Ins. Co., 936 F.2d 1474, 1487 (6th Cir. 1991)).

       In the instant case, the most convincing evidence that some of the items belonged to

Chiaverini was the presence of “buy tags” on some of the items Gail Little gave to Denny Heams.3

However, there was no evidence indicating which property had buy tags and which did not. In

addition, the items sold included coin proof sets that were not alleged to have come from the store,

and were clearly part of Annette’s personal collection. No documentation establishing Chiaverini’s

ownership of any of the items sold to Frenchie’s was provided to the jury. Finally, the jury was

presented with conflicting evidence concerning ownership of the pawn shop. The jury may have

found that Annette was the owner of the pawn shop until March 20, 2001, when a bill of sale was

executed giving Jascha Chiaverini full ownership of the shop. The items were taken from the store

before that date and the jury could have concluded that Annette was the rightful owner of the items

at the time she gave them to Little. Thus, we cannot say that the trial court abused its discretion in

finding that the jury’s verdict was not against the weight of the evidence, and declining to grant a

new trial on that basis.

       Chiaverini’s second ground for appeal asserts that it is entitled to a new trial based on

misconduct of defense counsel. Chiaverini points to several excerpts of witness testimony that it



       3
         Lynett Smith, Jascha’s girlfriend and a pawn shop employee, testified that the pawn shop
had an elaborate procedure of placing “buy tags” on all merchandise purchased by the shop. The buy
tag contained a number that corresponded with a card, and the card contained information about the
person who sold the item (name, driver’s license number, address, birthdate), and a description of
the item.

                                                  4
asserts were inadmissible: (1) testimony from Brian Beneteau stating that Jascha Chiaverini told him

he had been in prison; (2) an improper statement by defense counsel that Jascha had been imprisoned

for six years; and (3) testimony by Detective Meyer that he was unable to conclude who owned the

property that was sold to Frenchie’s in the Spring of 2001. Chiaverini contends that this testimony

was “part of a determined effort by defense counsel to get this inadmissible evidence to prejudice

the jury.” As stated above, this court reviews a district court’s denial of a motion for a new trial for

abuse of discretion.

       During the direct examination of the first witness, counsel for Chiaverini asked Brian

Beneteau, one of the owners of Frenchie’s, the following questions:

           Attorney Rogers: And do you recall when Jascha Chiaverini showed up? I
           guess it would have been in 2— near the end of 2003, after his father’s death,
           with a copy of those receipts?
           Witness Beneteau: I recall.
           Rogers: And what was your conversation with Jascha at that time?
           Beneteau: He told us he had just gotten out of prison and that when he was in
           prison, his parents were ---
           Rogers: Your Honor, I’m going to object to one type of thing and move to strike
           his comment about prison.
           The Court: Well, he was responding to your question.
           Meyers (defense counsel): He asked the question and he’s relaying the
           information supplied by his client as part of the answer.
           The Court: Okay.
           Meyers: There’s no objection there.
           The Court: Well, it’s your witness. So I guess if you want to have the question
           and answer withdrawn, we can grant your request to strike it. The jury will be
           instructed to disregard it.
           Rogers: Yes, your honor.
           The Court: Go ahead.
           Rogers: The—well, now that you all have been tainted—probably then continue
           on, Your Honor. I don’t see any way the jury in a proper manner can ignore the
           statement. Let me go ahead and question him. So—
           The Court: Counsel, could you find a convenient time to break in the next—
           Rogers: Well, I guess this would be a convenient time to break, Your Honor,
           and we’ll come back after lunch.


                                                     5
After lunch, Beneteau’s testimony resumed:

           Rogers: Now, Mr. Beneteau, just as we were ending up before the break I had
           asked you to talk about when Jascha Chiaverini had come to visit you in late
           2003, and I believe you testified he told you he had just gotten out of jail and
           what? Is that correct?
           Witness Beneteau: Continue?
           Rogers: Is that what he told you?
           Beneteau: He told us he had gotten out of prison. While he was in prison his
           parents had operated a store and when his father passed away—and I’m trying to,
           again, this is a long time ago, but when they were at his father’s house they found
           receipts from our store, which are the ones, of course, you had identified, and he
           came in and asked us if his father had received the proceeds from these sales.
           And at that time we gave him the copies of the receipts that we had, we gave him
           copies of the checks that we had, and we also ordered more checks from the bank
           that we did not have that would be able to show the endorsements on the back of
           the checks.
           Rogers: Now, you said he had told you he had just gotten out of jail. Would it
           surprise you that Mr. Chiaverini has never been in jail since 1993?
           Beneteau: I’m not sure why he would have brought that up, to tell you the truth.
           He said he was a model prisoner.
           Rogers: So you are asking this jury to believe that ten years later he would come
           in and tell you he had just gotten out of jail?
           Beneteau: And told us he was a model prisoner.
           Rogers: Now, wouldn’t you in fact bring up that sort of statement because you
           would like to assassinate the character of Jascha Chiaverini?
           Beneteau: No, sir. I brought that up because you asked me what he said when
           he came into the store.
           Rogers: That’s what he said, and I hope the jury notes it.


       Chiaverini also points to an exchange between defense counsel and Gail Little, where Little

was asked if she had ever had to call the police on her brother, and she responded, “Oh, yeah.

Definitely.” The district court did not allow Little to testify about any of the details surrounding her

previous conflict with her brother, but allowed testimony related to “the fact there [was] bad blood

between the witness and her brother.” Defense counsel next asked Little if Jascha had ever gone to

prison, and counsel for Chiaverini objected.


                                                   6
          Rogers: Well, wait a second, Your Honor.
          Defense counsel Meyers: Well, he made—
          Rogers: My objection was to his question she had called police on him and not
          the situation. I said, you know, he has not been anywhere as we will get into[.]
          He's [not] been in jail since 1993.
          The Court: Okay.
          Rogers: He hasn't even had anything other than a drivers — I think improper
          license plate type of thing is the only even traffic offense that he's had since 1993.
          The Court: What relevance does that have to this case?
          Meyers: The relevance is ongoing unnecessary harassment/litigation of these
          events. Now counsel's willing to stipulate his client did six years in prison. I
          don't need to go any further.
          Rogers: Objection, Your Honor. That was totally inadmissible. It was already
          in there improperly.
          The Court: I'll instruct the jury to disregard this matter and I'll ask counsel to
          not go into the subject any further. Anything have [sic] to do with alleged
          criminal charges is not, in my view, relevant to this case. The fact there may be
          bad blood between the witness and her brother, that’s another matter. But
          anything having to do with any criminal charges is not relevant to this case. I
          would instruct the jury to disregard that testimony.

       Chiaverini contends that the above excerpts demonstrate that defense counsel was attempting

to “circumvent the Federal Rules of Evidence, Rule 609.”

       Rule 609 states:

          (a)     General Rule — For the purpose of attacking the character for
          truthfulness of a witness,

                  (1)    evidence that a witness . . . has been convicted of a crime . . . if the
                  crime was punishable . . . in excess of one year . . . . shall be admitted if
                  the court determines that the probative value of admitting this evidence
                  outweighs its prejudicial effect to the accused . . . .

          (b)     Time limit. Evidence of a conviction under this rule is not admissible if
          a period of more than ten years has elapsed since the date of the conviction or of
          the release of the witness from the confinement imposed for that conviction,
          whichever is the later date, unless the court determines, in the interests of justice,
          that the probative value of the conviction supported by specific facts and
          circumstances substantially outweighs its prejudicial effect.

Fed. R. Evid. 609 (emphasis added).


                                                  7
       Chiaverini fails to acknowledge that evidence regarding Jascha’s time in prison was not

introduced to attack his character or credibility. The jury was not told what crime Jascha committed,

nor any of the facts surrounding his conviction. Rather, the jury simply heard references to the fact

that Jascha had spent time in prison. None of those references appear to have been made to “attack

his character for truthfulness.” The fact that Jascha was not present at the pawn shop for six years

because he was in prison, and that during that time his parents operated the pawn shop, was relevant

to the factual dispute over who owned the shop before the bill of sale was executed.

       Chiaverini contends that Brian Beneteau’s testimony that Jascha told him in 2003 that “he

had just gotten out of prison” when he had actually been released ten years earlier is so implausible

that it demonstrates that defense counsel coached his witness to lie as a way to circumvent the Rules

of Evidence. For support, Chiaverini points to Sanders-El v. Wencewicz, 987 F.2d 483, 484 (8th Cir.

1993), a case from the Eighth Circuit involving attorney misconduct. In Sanders-El, when defense

counsel was cross-examining the plaintiff in a § 1983 case (alleging police brutality), he

“dramatically dropped a lengthy computer printout in front of the jury.” The computer printout was

“about 10 feet of paper,” and the Eighth Circuit found that “[t]he manifest intent of the conduct was

to arouse the prejudices of the jury by leading it to believe Sanders-El had the conviction record of

a veteran vocational criminal. Counsel conducted this piece of theatrics despite pretrial discussions

in which the court indicated its intention not to admit such evidence.” Id.

       In the case at hand, it is pure conjecture that defense counsel coached Beneteau to inject

perjured testimony attributing a statement to Jascha. There is no evidence that Beneteau was not

giving truthful testimony; it is quite possible that Jascha did in fact tell Beneteau that he had been

in prison, as a way of explaining the ownership and control of his pawn shop, and why he was


                                                  8
looking for items that he alleged were stolen by his mother years before. The district court properly

denied Chiaverini’s motion for a new trial on this basis.

        Chiaverini also claims that defense counsel’s statement that Jascha “spent six years in prison”

during Gail Little’s testimony constitutes misconduct. However, we defer to the trial court’s

assessment of the effect of the comment, specifically, that it had no effect on the jury.

        Lastly, Chiaverini argues that defense counsel improperly elicited inadmissible testimony

from Detective David Meyer. Chiaverini again asserts that this constituted misconduct on the part

of defense counsel, and also argues that the district court incorrectly admitted this testimony over

its objection.

        After the close of Chiaverini’s case, Frenchie’s called Michigan State Police Officer David

Meyer. Before he was able to testify, Chiaverini made an objection, which the district court

overruled, stating that it would allow the testimony and “rule on objections as they come up.” Meyer

testified that he investigated whether Brian Beneteau’s purchase of the items from Heams violated

Michigan’s Precious Metal Act. The investigation began in January 2006, and in March 2006,

Meyer interviewed Jascha Chiaverini, his lawyer George Rogers, and Brian Beneteau. He also

examined some transcripts from a civil proceeding that were provided by George Rogers. The

following excerpt is the testimony that Chiaverini challenges as inadmissible:

            Meyers (defense counsel): Based on your investigation, did you ever determine who
            actually owned this property that was alleged to be stolen?
            Off. Meyer: No, I didn't.
            Meyers: I appreciate that you told us Mr. Chiaverini claimed that the property was
            stolen. Based on your investigation as an officer, did you ever determine whether or not
            even the property was actually ever stolen or not?
            Off. Meyer: No, I did not.
            Rogers: Objection, Your Honor.
            The Court: Counsel, what was the objection?


                                                        9
           Rogers: You know, this witness has no personal knowledge of the facts, and in fact what
           he’s doing is he’s asked to be substitute [sic] for whatever information he has, is
           substitute his opinion for the jury in a criminal case, which has got a different standard
           of proof.
           Meyers: I didn't ask—
           Rogers: I mean, that’s what in effect he's being asked for. He’s being asked opinion
           based as an investigator, which would be basically we have a jury that's conducting an
           investigation with evidence and people under oath being brought to court, and pursuant
           to the rules of evidence, and so forth, that are brought in front of the Court, and I don't
           see where his investigation that he has no firsthand knowledge of would be relevant to
           the duty and the evaluation of the jury’s—
           The Court: What is your last question to the witness that you want him to answer?
           Counsel, would you restate your question again? What is it?
           Meyers: My question to the officer was based on his investigation of the matter, did he
           as a police officer ever determine whether or not the property itself was stolen. I didn't
           ask him to make a judgment call on civil liability, criminal liability, or—I'm asking about
           an investigation instituted by Chiaverini.
           The Court: Well, but are you asking him to state an opinion?
           Mr Meyers: I'm asking for his opinion as a police officer of 29 years, having done
           thousands of investigations. Believe he can answer that.
           The Court: Well, all right. Well, we'll take his opinion, then, at this point whether as
           result of his investigation he came to any conclusion. Admonish the jury that this is
           strictly an opinion, and the jury is free to disregard it if they wish. Go ahead.
           Mr. Meyers: I'm going to ask it again, sir, based on your years of experience as a police
           officer and thousands of cases that you've done—
           The Court: Would you just state your question please.
           Mr. Meyers: Could you actually—did you make a determination as to whether or not
           the property was ever actually stolen?
           Off. Meyer: I did not make a determination that it was stolen.

       Even assuming, arguendo, that the testimony provided by Detective Meyer was inadmissible,

there is no evidence of bad faith on the part of defense counsel, as Chiaverini contends. In addition,

inadmissible evidence is not in itself grounds for a new trial. Rule 61 makes clear that “no error in

admitting or excluding evidence . . . is ground for granting a new trial.” Fed. R. Civ. P. 61. In order

to be entitled to a new trial, the moving party must show that the trial was unfair, and that the

proceedings were influenced by prejudice or bias. Holmes, 78 F.3d at 1046. The court made clear

to the jury that Detective Meyer was simply expressing his opinions and that the jury was free to


                                                  10
disregard it. We see no reason to question the district court’s determination that the testimony did

not improperly impact the jury’s determination of ownership, and there is no indication Detective

Meyer’s testimony resulted in an unfair or biased trial.

                                                III.

       Accordingly, we affirm the decision of the district court.




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