          Case: 17-14871    Date Filed: 05/02/2019   Page: 1 of 20


                                                         [DO NOT PUBLISH]



            IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                       ________________________

                             No. 17-14871
                         Non-Argument Calendar
                       ________________________

                   D.C. Docket No. 0:16-cv-60436-WPD



ERIC WATKINS,

                                                            Plaintiff-Appellant,

                                   versus

BROWARD SHERIFF'S OFFICE,

                                                          Defendant-Appellee.

                       ________________________

                Appeal from the United States District Court
                    for the Southern District of Florida
                      ________________________

                              (May 2, 2019)

Before WILLIAM PRYOR, NEWSOM, and GRANT, Circuit Judges.

PER CURIAM:
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      Eric Watkins, proceeding pro se, appeals following an adverse verdict in his

42 U.S.C. § 1983 civil rights action. Watkins alleges that Broward County

Sheriff’s Office Deputy Eugene Mobley arrested him without probable cause and

then used excessive force by tasing him. A jury returned a verdict in favor of

Mobley.

      On appeal, Watkins argues that the district court abused its discretion by

denying his motions for appointment of counsel, continuance, and leave to amend.

Watkins also contends that the court committed numerous discovery and

evidentiary errors. We affirm.

                                           I

      We review the denial of a motion for appointment of counsel for an abuse of

discretion. Bass v. Perrin, 170 F.3d 1312, 1319 (11th Cir. 1999).

      “A plaintiff in a civil case has no constitutional right to counsel.” Id. at

1320. Under 28 U.S.C. § 1915(e)(1), however, a district court may appoint

counsel for an indigent plaintiff. Id. Appointment of counsel in a civil case is

appropriate only in exceptional circumstances, such as when the facts and legal

issues are so novel and complex as to require the assistance of a trained

practitioner. Kilgo v. Ricks, 983 F.2d 189, 193 (11th Cir. 1993). “The key is

whether the pro se litigant needs help in presenting the essential merits of his or

her position to the court.” Id. “Where the facts and issues are simple,” typically a


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pro se litigant “will not need such help.” Id. To determine whether exceptional

circumstances exist, we consider the following factors: (1) the type and complexity

of the case; (2) whether the litigant is capable of adequately presenting his or her

case; (3) whether the litigant is in a position to adequately investigate the case; and

(4) whether the evidence will consist in large part of conflicting testimony so as to

require skill in the presentation of evidence and in cross-examination. See Ulmer

v. Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (adopted by Fowler v. Jones, 899

F.2d 1088, 1096 (11th Cir. 1990) (finding no exceptional circumstances, when,

among other factors, the plaintiff’s claims were based on incidents mostly

witnessed by himself)); Smith v. Fla. Dep’t of Corr., 713 F.3d 1059, 1065 n.11

(11th Cir. 2013) (“This Court has often looked to the factors outlined in Ulmer v.

Chancellor, 691 F.2d 209 (5th Cir.1982) for guidance in determining if exceptional

circumstances warrant appointment of counsel.”).

      We find that no extraordinary circumstances exist here. Watkins filed a

pretrial motion for appointment of counsel and the district court referred Watkins’s

request to the Volunteer Attorney Program. Watkins received representation

through the program but then voluntarily rejected the opportunity to be represented

by counsel when he fired the attorney provided to him. It was not an abuse of the

district court’s broad discretion to deny Watkins’s motion for appointment of

counsel. Even if Watkins had not voluntarily rejected his representation on the


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morning of trial, his claims for relief, which involved allegations of excessive force

and false arrest, were neither novel nor complex, and his claims involved incidents

that he witnessed himself. See Fowler, 899 F.2d at 1096 (holding that where

“plaintiff’s claims [were] relatively straightforward and involve incidents … which

plaintiff witnessed himself” the denial of his motion for appointment of counsel

“was proper [because] there were no exceptional circumstances”).

                                           II

      We review the disposition of requests for trial continuances for abuse of

discretion. Quiet Tech. DC-8, Inc. v. Hurel-Dubois UK Ltd., 326 F.3d 1333, 1350–

51 (11th Cir. 2003). The denial of a continuance is within the broad discretion of

the district court and will not be overturned unless the denial is arbitrary or

unreasonable. Id. at 1351. In reviewing a denial of a request for a continuance, we

consider several factors, including (1) the diligence of the party requesting the

continuance to ready the case prior to the date set for hearing; (2) the likeliness that

the need for continuance could have been met if a continuance had been granted;

(3) the extent to which granting the continuance would have been an

inconvenience to the court and the opposing party, including its witnesses; and

(4) the extent to which appellant might have suffered harm as a result of the denial.

Id. (quoting Hashwani v. Barbar, 822 F.2d 1038, 1040 (11th Cir. 1987)).




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      Watkins alleges that “he needed the extension of time so that he could get a

pro bono attorney” and “prepare[] to try his case.” The district court denied his

first motion for a two-month continuance, but on the same day appointed a

volunteer counsel for Watkins. Two weeks later, the court postponed the trial for

11 days due to juror unavailability. After his motion for a continuance was denied,

Watkins’s attorney did not request a continuance and in fact acknowledged that the

district court had accommodated his schedule.

      By appointing volunteer counsel for Watkins and postponing the trial due to

juror unavailability, the district court mooted the necessity for a continuance under

the second Quiet Tech factor. 326 F.3d at 1351 (the “need for continuance” was

met by providing counsel and postponing the trial such that “if a continuance had

been granted” it would provide no new benefit as requested by Watkins). Next,

looking at the third factor—the inconvenience a continuance would cause—the

district court clearly would have been inconvenienced. The court indicated that it

did not know whether it would have another opening to try the case the following

month. Finally, as to the fourth factor, Watkins failed to show that he suffered

harm—or would have prepared differently—as a result of the denial.

                                         III

      We review the district court’s denial of a motion for leave to amend a

complaint for abuse of discretion. Long v. Satz, 181 F.3d 1275, 1278 (11th Cir.


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1999) (per curiam) (citation omitted). While the pleadings of pro se litigants are

construed liberally, “we nevertheless have required them to conform to procedural

rules.” Albra v. Advan, Inc., 490 F.3d 826, 829 (11th Cir. 2007) (per curiam)

(citation omitted) (finding motion was properly dismissed where pro se plaintiff

failed to serve defendant a copy of the complaint). “Filing a motion is the proper

method to request leave to amend a complaint.” Long, 181 F.3d at 1279. “A

motion for leave to amend should either set forth the substance of the proposed

amendment or attach a copy of the proposed amendment.” Id. (holding that

plaintiff’s failure to properly request leave to amend her complaint, when she had

adequate time and opportunity to do so, precluded her argument on appeal that the

district court abused its discretion by denying leave). We may affirm the judgment

of the district court on any ground supported by the record, regardless of whether

that ground was relied upon or even considered by the district court. Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir. 2012).

      The district court did not abuse its discretion in denying Watkins leave to

amend his amended complaint because he failed to conform to the district court’s

procedural rules. Watkins did not comply with Local Rule 15.1, which required

him to file a copy of his proposed second amended complaint with his motion for

leave. See Albra, 490 F.3d at 829. Additionally, Watkins moved to amend his

complaint a second time more than a month after the scheduling-order deadline.


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His failure to properly request leave to amend his previously amended complaint,

when he had adequate time and opportunity to do so, precludes his argument on

appeal that the district court abused its discretion by denying him leave. See Long,

181 F.3d at 1279.

                                          IV

      We review orders compelling discovery for an abuse of discretion.

Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1366 (11th Cir. 1997). “[A]

district court is allowed a range of choice in such matters, and we will not second-

guess the district court’s discovery decisions unless they reflect a clear error of

judgment.” Holloman v. Mail-Well Corp., 443 F.3d 832, 837 (11th Cir. 2006)

(citation and internal quotations omitted).

      Watkins claims that it was error to grant Mobley’s motion to compel an

independent medical examination because Mobley’s “medical examiner was not

independent or impartial because he was hired by [Mobley].” Mobley notes that

Watkins placed his mental and emotional condition at issue, and that he was given

the opportunity to cross-examine the doctor.

      Federal Rule of Civil Procedure 35(a) provides that a district court “may

order a party whose mental or physical condition . . . is in controversy to submit to

a physical or mental examination.” Fed. R. Civ. P. 35(a). It was not an abuse of

discretion to grant Mobley’s motion. Watkins placed his mental condition in


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controversy by asserting that, as a result of the incident with Mobley, he continues

to suffer from anxiety, depression, flashbacks, paranoia, and sleepless nights. To

the extent that Watkins argues that the doctor was biased, the district court was not

required to appoint an independent medical examiner, and Watkins was permitted

to explore his concerns through cross-examination at trial. Accordingly, the

district court’s decision did not reflect a clear error of judgment. See Holloman,

443 F.3d at 837.

                                            V

      Watkins contends that the district court’s evidentiary rulings at trial

constituted an abuse of discretion. We take each claim in turn.

                                            A

      First, Watkins contends that the district court prejudiced him and abused its

discretion when it rejected his proposed jury instructions regarding the legal

sufficiency of the probable-cause affidavit and corrected his misstatements of the

law in the presence of the jury.

      “We review jury instructions de novo to determine whether they misstate the

law or mislead the jury to the prejudice of the objecting party, but the district court

is given wide discretion as to the style and wording employed in the instructions.”

Lamonica v. Safe Hurricane Shutters, Inc., 711 F.3d 1299, 1309 (11th Cir. 2013)

(quoting Goldsmith v. Bagby Elevator Co., 513 F.3d 1261, 1276 (11th Cir. 2008)).


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A district court’s refusal to give a requested jury instruction is reviewed only for an

abuse of discretion. Id. “In refusing to give a requested jury instruction, an abuse

of discretion is committed only when (1) the requested instruction correctly stated

the law, (2) the instruction dealt with an issue properly before the jury, and (3) the

failure to give the instruction resulted in prejudicial harm to the requesting party.”

Id. (alterations and quotation marks omitted).

      False arrest is a violation of the Fourth Amendment and a viable claim under

§ 1983. Ortega v. Christian, 85 F.3d 1521, 1525–26 (11th Cir. 1996). A claim for

false arrest arises when an arrest occurs without a warrant and without probable

cause. Gates v. Khokar, 884 F.3d 1290, 1297 (11th Cir. 2018). “[T]he existence

of probable cause at the time of arrest,” however, “serves as an absolute bar” to a

false arrest claim. Id. “Probable cause exists where the facts within the collective

knowledge of law enforcement officials, derived from reasonably trustworthy

information, are sufficient to cause a person of reasonable caution to believe that a

criminal offense has been or is being committed.” Id. at 1298 (quoting Brown v.

City of Huntsville, 608 F.3d 724, 734 (11th Cir. 2010)). It is a lower bar than the

“specific evidence of each element of the offence” that is required to support a

conviction. Holmes v. Kucynda, 321 F.3d 1069, 1079 (11th Cir. 2003) (quoting

Adams v. Williams, 407 U.S. 143, 149 (1972)).




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      Watkins claims that the district court “committed reversible error” when it

declined to issue his proposed jury instruction and, “in the presence of the jury,”

stated “that the … probable cause affidavit did not have to be supported by facts.”

As Mobley highlights, and the record confirms, however, the district court only

stated that “the absence of detail in a probable cause affidavit doesn’t mean that

there wasn’t probable cause.”

      The district court did not abuse its discretion by refusing Watkins’s proposed

instruction and correcting his mischaracterizations of probable cause in the

presence of the jury because the proposed instruction and Watkins’s questions

regarding the details omitted from the affidavit misstated the law. Mobley was not

required to include the type of specific evidence of each element of the offense that

would be needed to support a conviction. Gates, 884 F.3d at 1297. Instead,

Mobley was permitted to arrest Watkins without a warrant so long as the facts and

circumstances within Mobley’s knowledge, based on reasonably trustworthy

information, would have caused a reasonable officer to believe that Watkins had

committed, was committing, or was about to commit an offense. See id.

                                          B

      Watkins next contends that the district court erred by excluding the evidence

of his judgment of acquittal in his underlying criminal case because without that

evidence, as he sees it, “the jury could have very well believed or presumed that


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[he] was convicted of the charges and now is attempting to sue the officer.”

Watkins’s counsel, however, had no objection to excluding the results of the

criminal trial “so long as [the defense] do[es]n’t open the door.”

      We review the district court’s grant of a motion in limine for abuse of

discretion. Al-Amin v. Smith, 637 F.3d 1192, 1195 (11th Cir. 2011) (citation

omitted). Under the abuse-of-discretion standard, we may reverse a decision of the

district court only if the court “applies an incorrect legal standard, follows

improper procedures in making the determination, or makes findings of fact that

are clearly erroneous.” Klay v. United Healthgroup, Inc., 376 F.3d 1092, 1096

(11th Cir. 2004) (citation omitted). Likewise, a “district court has wide discretion

in determining the relevance of evidence produced at trial.” Cabello v. Fernandez-

Larios, 402 F.3d 1148, 1161 (11th Cir. 2005) (per curiam). Even relevant

evidence may be excluded “if its probative value is substantially outweighed by a

danger of … unfair prejudice, … undue delay, wasting time, or needlessly

presenting cumulative evidence.” Fed. R. Evid. 403.

      In United States v. Irvin, we held that a district court did not abuse its

discretion in granting the government’s motion in limine, which prevented the

defendant from mentioning, referring to, or soliciting information about the

acquittals of his co-defendants in a previous trial. 787 F.2d 1506, 1516–17 (11th

Cir. 1986). Noting that a judgment of acquittal is inadmissible hearsay, we stated


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that, “[e]ven if the evidence of prior acquittal was otherwise admissible, it would

be properly excludable under Rule 403, [] because its probative value is

outweighed by the danger of unfair prejudice, confusion of the issues, or

misleading the jury.” Id. at 1517; see also United States v. Lyons, 403 F.3d 1248,

1255–56 (11th Cir. 2005) (concluding that the district court did not err in granting

the government’s motion in limine to exclude evidence of the defendant’s prior

acquittal, despite defendant’s argument that it was relevant to show motive and

bias, stating that any relevance was “exceedingly marginal and, given that it may

have confused the jury, we c[ould] find no abuse of discretion in the district court’s

decision to exclude this evidence”).

      Our analysis on this point is straightforward: The district court did not abuse

its discretion by granting Mobley’s motion in limine because Watkins’s counsel

stated at calendar call that, so long as Mobley did not open the door, counsel had

no objection to excluding the result of the underlying criminal case. With respect

to the objection Watkins filed himself, the district court acted within its discretion

in declining to address it while Watkins was represented by counsel. See Klay, 376

F.3d at 1096. Watkins still has not provided a substantial explanation as to the

acquittal’s relevance, and it was not an abuse of discretion for the district court to

conclude that the judgment was irrelevant. See Cabello, 402 F.3d at 1161. Indeed,




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even when Watkins represented himself, he indicated that he understood the

court’s decision to exclude the evidence and he did not object.

                                           C

      Watkins argues that the district court abused its discretion and prejudiced

him by imposing time limits on his witness examinations and “constantly

admonish[ing]” and “rush[ing]” him to speed up his examination of Mobley.

Similarly, he contends that the district court’s comments and rulings during trial

favored Mobley and, by their impartiality, prejudiced him.

      We review an appellant’s claim that the district court improperly limited the

scope of his witness examination for a clear abuse of discretion. United States v.

Maxwell, 579 F.3d 1282, 1295 (11th Cir. 2009). We review the conduct of the

district court at trial for abuse of discretion. See United States v. Hill, 643 F.3d

807, 845–46 (11th Cir. 2011). “‘Because a clear effect on the jury is required to

reverse for comment by the trial judge,’ we will only consider the trial court’s

comments that were made in the presence of the jury.” Id. at 845 (quoting United

States v. Palma, 511 F.3d 1311, 1317 (11th Cir. 2008)).

      The Federal Rules of Evidence provide that a district court “should exercise

reasonable control over the mode and order of examining witnesses and presenting

evidence so as to: (1) make those procedures effective for determining the truth;

(2) avoid wasting time; and (3) protect witnesses from harassment or undue


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embarrassment.” Fed. R. Evid. 611(a). “The discharge of this responsibility

necessarily entails the exercise of discretion.” Haney v. Mizell Mem’l Hosp., 744

F.2d 1467, 1477 (11th Cir. 1984). And because cross-examination is the principal

means of testing a witness’s credibility and the truth of his testimony, a district

court is vested with broad discretion “to preclude repetitive and unduly harassing

interrogation.” Davis v. Alaska, 415 U.S. 308, 316 (1974); see also Fed. R. Evid.

611(a).

      In conducting a trial, the district court “may comment on the evidence, may

question witnesses and elicit facts not yet adduced or clarify those previously

presented, and may maintain the pace of the trial by interrupting or cutting off

counsel as a matter of discretion.” Hill, 643 F.3d at 845 (quotation omitted). The

trial court abuses its discretion only when the judge’s conduct “strays from

neutrality,” and even then, only when its remarks demonstrate “pervasive bias and

unfairness” that results in actual prejudice to a party. Id. at 845-46 (citations and

internal quotations omitted).

      In assessing a district court’s broad discretion to manage trials, we have held

that a court did not abuse its discretion where the “record show[ed] that the district

court exercised reasonable control in managing the flow of the trial by establishing

time limits,” and the appellant provided no evidence that the court acted “inflexibly




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or unreasonably with respect to the time restrictions.” Akouri v. Fla. Dep't of

Transp., 408 F.3d 1338, 1346 (11th Cir. 2005).

      The same analysis holds true here. The district court did not abuse its broad

discretion by imposing time limits on Watkins’s examination. First, the record

indicates that, although the district court imposed certain time restrictions during

trial, they were flexible, and they were only imposed after multiple warnings.

Second, the district court did not abuse its discretion when it prevented Watkins

from continuing his repetitive lines of questioning during his examinations of

Mobley and Anthony Floreal. See Maxwell, 579 F.3d at 1295. With respect to the

questions Watkins asked Mobley, Watkins had already been permitted to read the

entire probable cause affidavit to the jury, and Mobley confirmed that Watkins had

read it correctly. As Watkins proceeded to examine Mobley, the court gave

Watkins repeated warnings that he was wasting time and needed to raise relevant

questions or wrap up his examination. Third, and finally, the district court did not

stray from neutrality. The court’s comments in the presence of the jury were not

derogatory or disparaging, and the court was evenhanded in its rulings. Instead,

comments were merely directives to Watkins to “mov[e] things along” or pick up

the pace. See Hill, 643 F.3d at 846.




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                                           D

      Watkins contends that the district court erred by excluding an audio

recording of Mobley’s deposition without reviewing the recording and that this

exclusion prevented him from impeaching Mobley’s credibility. Watkins claims

he was “having trouble explaining the relevance of the [recording] … due to his

inexperience.”

      “We review evidentiary rulings for an abuse of discretion.” Adams v.

Austal, U.S.A., L.L.C., 754 F.3d 1240, 1248 (11th Cir. 2014) (citation omitted).

“An abuse of discretion occurs where the district court’s decision rests upon a

clearly erroneous finding of fact, an errant conclusion of law, or an improper

application of law to fact.” Id. (citation omitted). Evidentiary rulings are

overturned only “when the moving party has proved a substantial prejudicial

effect.” Id. (citation omitted); see also Perry v. State Farm Fire & Cas. Co., 734

F.2d 1441, 1446 (11th Cir. 1984) (per curiam) (explaining that an error in an

evidentiary ruling is “harmless if it does not affect the substantial rights of the

parties”).

      Here, the district court did not abuse its discretion by excluding the audio

recording of Mobley’s deposition, and the record does not support Watkins’s

contention that he was prejudiced, substantially or otherwise, by the district court’s

evidentiary ruling. After the district court told Watkins that he could not publish


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the recording to the jury, the court explained the proper method by which Watkins

could impeach Mobley, and directed Watkins to explain any differences between

Mobley’s statements in court and in the deposition. Furthermore, using a transcript

of Mobley’s deposition, the district court helped Watkins with the proper

procedure for questioning Mobley and permitted Watkins to read multiple pages of

the transcript in the presence of the jury. Accordingly, Watkins’s claim that the

district court improperly excluded the recording and unfairly prejudiced him lacks

merit.

                                             E

         Watkins also contends that the district court erred by permitting the

testimony of Shernette Johnson because Mobley had withheld her sworn affidavit

from him, “which caused [him] to be unprepared to cross[-]examine her.” Mobley

claims that Johnson was timely disclosed on the witness list.

         If a witness is not retained or specially employed to provide expert

testimony in the case or is not one whose duties as the party’s employee regularly

involve giving expert testimony, the party is not required to provide a full written

report. Fed. R. Civ. P. 26(a)(2)(B).

         The district court did not err in permitting Johnson to testify. First, the

record belies Watkins’s contention that he was surprised by this witness and lacked

sufficient time to prepare for cross-examination. Mobley provided Watkins a copy


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of Johnson’s two-page declaration, and Watkins acknowledged that he knew the

witness by her maiden name before she testified. Second, because Johnson was a

lay fact witness, Mobley was not required to provide a written report to Watkins.

See Fed. R. Civ. P. 26(a)(2)(B). Finally, because Johnson testified to the events

leading up to Watkins’s arrest, and Watkins was present for and had personal

knowledge of the facts to which she testified, he cannot now claim surprise.

                                          F

      Watkins contends that the district court erred in permitting Mobley to refer

to Watkins’s “multiple” past lawsuits against the Broward County Sheriff’s Office

and other law enforcement officials in his opening arguments. Because he did not

testify about his previous lawsuits, Watkins says, Mobley’s statement was

irrelevant and prejudicial to his case. Mobley argues that the district court was

within its discretion to allow him to refer to Watkins’s past lawsuits because it was

relevant to show bias and animus against the police.

      As we explained above, Federal Rule of Evidence 403 permits a court to

exclude relevant evidence if its probative value is substantially outweighed by

prejudice or confusion to the jury. District courts are given broad discretion when

determining whether evidence should be excluded for its potential prejudice to a

party of confusion to the jury. See United States v. Novaton, 271 F.3d 986, 1006




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(11th Cir. 2001) (holding that the district court properly exercised its discretion

under Rule 403 in limiting cross-examination to reveal a witness’s potential bias).

      While Watkins asserts that a review of his testimony shows that he did not

testify to the facts of his previous lawsuits, the record indicates otherwise.

Additionally, as the district court observed in its order denying Watkins’s motion

to exclude evidence of his lawsuits, the evidence was relevant to show bias.

Accordingly, Watkins’s argument lacks merit.

                                           G

      Finally, Watkins argues that the district court erred in sustaining Mobley’s

objection to Watkins’s question, “[D]id you state to your lawyer that … Watkins

was moving aggressively to another officer when I tased him?” Specifically,

Watkins contends that the court prevented him from attacking Mobley’s credibility

with Mobley’s previous motion to dismiss, and instead limited him to “one more

question.” Mobley asserted attorney-client privilege.

      Attorney-client privilege promotes “freedom of consultation between client

and lawyer.” United States v. Suarez, 820 F.2d 1158, 1150 (11th Cir. 1987). By

invoking the privilege and maintaining confidential communications, a litigant is

free from “the fear of subsequent compelled legal disclosure” of those

communications. Id. Until such client communications are disclosed—i.e., no

longer confidential—the privilege remains in place. Id. We review a district


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court’s decision to sustain an objection which invokes this privilege for an abuse of

discretion. Adams, 754 F.3d at 1248.

      Watkins’s initial question regarding what Mobley said to his lawyer sought

to elicit privileged communications, and, therefore, the district court did not abuse

its discretion in sustaining Mobley’s objection. See Suarez, 820 F.3d at 1150.

Moreover, and in any event, Watkins cannot show that he was prejudiced by the

district court’s rulings. See Adams, 754 F.3d at 1248. Although Watkins claims

that the district court prevented him from attacking Mobley’s credibility, Watkins

was permitted to put his contention to the jury. Even after Mobley renewed his

objection, the district court permitted Watkins to finish presenting his argument

before sustaining Mobley’s objection.

      Accordingly, we AFFIRM in all respects.




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