                                                                              FILED
                            NOT FOR PUBLICATION                               OCT 24 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                          U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


KOFI KYEI,                                        No. 10-35387

              Plaintiff - Appellant,              D.C. No. 3:07-cv-01607-AC

  v.
                                                  MEMORANDUM*
OREGON DEPARTMENT OF
TRANSPORTATION; et al.,

              Defendants - Appellees.




                    Appeal from the United States District Court
                             for the District of Oregon
                    John V. Acosta, Magistrate Judge, Presiding

                      Argued and Submitted October 12, 2012
                                Portland, Oregon

Before: SILVERMAN, CLIFTON, and N.R. SMITH, Circuit Judges.


       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. For the

reasons set forth below, we affirm the district court.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1.     We review the district court’s decision not to order disclosure to Kofi

Kyei of documents reviewed by a witness before testifying for abuse of discretion.

United States v. Wong, 886 F.2d 252, 257 (9th Cir. 1989). We will not reverse the

district court’s evidentiary rulings absent “some prejudice.” S.E.C. v. Jasper, 678

F.3d 1116, 1122 (9th Cir. 2012) (internal quotation marks omitted). When a

witness reviews notes prior to testifying, the adverse party “is entitled to have the

writing produced at the hearing, to inspect it, to cross-examine the witness about it,

and to introduce in evidence any portion that relates to the witness’s testimony[,]”

“if the court decides that justice requires the party to have those options.” See Fed.

R. Evid. 612. In this case, the district court failed to explicitly determine whether

“justice requir[ed]” production of Chris Myers’s notes that he reviewed prior to

testifying. Although the district court should have made an explicit finding on this

point, Kyei has not shown that his inability to review the notes prejudiced him.

Kyei was free to cross-examine Myers and test his credibility and independent

memory without having the documents in hand, but chose not to do so. Instead,

counsel ended his cross-examination of Myers shortly after the district court denied

Kyei’s request for in camera review of the notes. Thus, we conclude that the

district court did not abuse its discretion in making its ruling.




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      2.     We review de novo the district court’s conclusions regarding the

existence and scope of a privilege. United States v. Ruehle, 583 F.3d 600, 606 (9th

Cir. 2009). Neither Supreme Court nor Ninth Circuit precedent provide authority

for a union member/union representative privilege. We also choose not to

“continue the evolutionary development of testimonial privileges” by recognizing a

new privilege in this case. See Trammel v. United States, 445 U.S. 40, 47 (1980).

The record demonstrates that the district court severely restricted the scope of the

two union representatives’ testimony and, for the most part, allowed testimony

pertaining only to the representatives’ non-confidential communications with Kyei.

      To the extent that Kyei argues that the union representatives’ testimony

should have been excluded under the attorney/client privilege, Kyei did not

preserve this issue for appeal, because he failed to raise the objection below. See

United States v. Iglesias, 535 F.3d 150, 158 (9th Cir. 2008). We conclude that

admission of the representatives’ testimony did not constitute plain error. See id.

Given the weight of testimony against him, Kyei has not shown that the

representatives’ testimony “affected the outcome of the district court proceedings.”

See id. (internal quotation marks omitted).

      Finally, we decline to reach Kyei’s “due process” argument with regards to

the representatives’ testimony “because this argument was not coherently


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developed in his briefs on appeal.” See United States v. Kimble, 107 F.3d 712, 715

n.2 (9th Cir. 1997).

      3.     We review for abuse of discretion a district court’s admission of

evidence under Federal Rule of Evidence 404(a). United States v. Gillespie, 852

F.2d. 475, 479 (9th Cir. 1988). The evidence of Kyei’s prior work history was not

improper character evidence under Rule 404(a).

      4.     We review for abuse of discretion a district court’s balancing of the

probative value of evidence against any unfair prejudice under Federal Rule of

Evidence 403. Boyd v. City and Cnty. of San Francisco, 576 F.3d 938, 948 (9th

Cir. 2009). We conclude that the district court did not abuse its discretion under

Rule 403 when it admitted the two representatives’ testimony and the prior work

history evidence. The record demonstrates that the district court “adequately

weighed the probative value and prejudicial effect of [the] proffered evidence

before its admission . . . .” Id.

      5.     We also review for abuse of discretion the district court’s decision to

consult an advisory jury. See Traxler v. Multnomah Cnty., 596 F.3d 1007, 1013

(9th Cir. 2010); Fed. R. Civ. P. 39(c). The district court did not abuse its discretion

in consulting an advisory jury, even though this action allowed the jury to hear

evidence of Kyei’s prior work history. Further, as with the two representatives’


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testimony, the district court severely limited evidence of Kyei’s prior work history

to avoid any undue prejudice to Kyei.

      6.     Finally, “a district court’s denial of a motion for a new trial” is also

reviewed for abuse of discretion. Molski v. M.J. Cable, Inc., 481 F.3d 724, 728

(9th Cir. 2007). An erroneous evidentiary ruling warrants a new trial only if the

ruling “substantially prejudiced” a party. Ruvalcaba v. City of Los Angeles, 64

F.3d 1323, 1328 (9th Cir. 1995) (internal quotation marks omitted). Kyei’s motion

for a new trial was premised on the district court’s alleged evidentiary errors in

consulting an advisory jury. As discussed above, we conclude that Kyei has failed

to demonstrate that the district court abused its discretion in consulting the

advisory jury, much less that this action “substantially prejudiced” him.

      AFFIRMED.




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