                                                         [DO NOT PUBLISH]

             IN THE UNITED STATES COURT OF APPEALS

                     FOR THE ELEVENTH CIRCUIT
                      ________________________                   FILED
                                                       U.S. COURT OF APPEALS
                             No. 04-12274                ELEVENTH CIRCUIT
                                                             APRIL 26, 2005
                         Non-Argument Calendar
                                                          THOMAS K. KAHN
                       ________________________
                                                                CLERK

                   D. C. Docket No. 02-20053-CV-FAM

RONNY CONEY,

                                                     Plaintiff-Appellee,

                                   versus

EVELIO COBAS, individually,

                                                     Defendant-Appellant.

                       ________________________

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


                              (April 26, 2005)


Before ANDERSON, DUBINA and BLACK, Circuit Judges.

PER CURIAM:
       Evelio Cobas seeks a new trial on damages, claiming the district court

abused its discretion by granting Ronny Coney’s motion in limine. The district

court did not abuse its discretion, and we affirm.

                                     I. BACKGROUND

       Coney filed a fifteen-count complaint seeking damages from the City of

Miami and Cobas on numerous legal theories arising under 42 U.S.C. § 1983, 42

U.S.C. § 1981, and state law.1 Three counts against Cobas went to the jury, and

the jury found for Coney on all three, illegal seizure under 42 U.S.C. § 1983,

violation of equal protection under 42 U.S.C. § 1983, and assault under Florida

law. The jury awarded Coney $20,000 in compensatory damages and $10,000 in

punitive damages.

       The motion in limine sought to exclude evidence and any mention at trial of

Coney’s arrests and convictions, with the exception of two felony convictions

within the last ten years. The motion relied on Federal Rule of Evidence 609(b),

which provides convictions over ten years old cannot be used for impeachment

purposes, as well as Federal Rule of Evidence 403, which provides that evidence




       1
          The district court granted summary judgment in favor of the City on the federal claims
and declined to exercise supplemental jurisdiction on the state law claims. The district court also
granted summary judgment on some of the claims against Cobas.

                                                 2
should not be admitted if its prejudicial effect outweighs its probative value. The

district court granted the motion from the bench.

                                     II. DISCUSSION

       Cobas claims because Coney sought damages for emotional pain and

suffering as a result of his arrest by Cobas, the evidence of his prior arrests and

incarcerations is relevant to show that he did not suffer from the arrest by Cobas as

much as he claimed.

       We review the district court’s decisions on evidentiary issues for an abuse

of discretion. United States v. Word, 129 F.3d 1209, 1212 (11th Cir. 1997). In

Bryan v. Jones, 519 F.2d 44, 46 (5th Cir. 1975), rev’d and remanded on another

issue, 530 F.2d 1210 (5th Cir. 1976) (en banc),2 the Court held the district court

erred in refusing to permit proof of Bryan’s prior imprisonment relative to the

damages he claimed under 42 U.S.C. § 1983 for false imprisonment. The Court

remanded for a new trial on damages finding:

       The court’s charge to the jury instructed it to award damages for
       physical and mental suffering. Bryan was allowed to adduce proof of
       the adverse conditions under which he was confined. The parties
       should have been given an opportunity to develop all factual elements
       which related to damages. One such element is the suffering caused


       2
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior to
close of business on September 30, 1981.

                                               3
      by the very fact of incarceration, absent any issue concerning the
      condition of or reason for such incarceration. Even a minimal sort of
      penal confinement may be debilitating to many. Under comparable
      conditions of confinement, however, this mental anguish may be
      much less for the recidivist than for one incarcerated for the first time.
      Therefore, the fact of prior imprisonment is a consideration to the
      extent of mental suffering occasioned by the wrongful confinement.
      Accordingly, this cause must be remanded so that the damage issue
      may be tried anew.

Id. (internal citations omitted).

      Coney’s case is distinguishable from Bryan. The plaintiff in Bryan was

incarcerated wrongfully for 36 days, and his emotional damages were for

emotional “suffering caused by the very fact of incarceration.” Id. In contrast, the

crux of Coney’s case was the emotional trauma he suffered at the scene of arrest,

rather than the fact of incarceration. Further, the jury was made aware of Coney’s

1994 and 1996 drug convictions, so the evidence Coney was a recidivist was

before the jury. Assuming, arguendo, the prior arrests and convictions should

have been admitted, the error was harmless because the two most recent

convictions were admitted, and the jury was able to take Coney’s prior experience

with arrest and conviction into account when deciding the amount of damages.

Thus, we find the district court did not abuse its discretion in granting Coney’s

motion in limine.

      AFFIRMED.

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