                                                        [DO NOT PUBLISH]

            IN THE UNITED STATES COURT OF APPEALS

                    FOR THE ELEVENTH CIRCUIT
                     ________________________                  FILED
                                                      U.S. COURT OF APPEALS
                            No. 05-10694                ELEVENTH CIRCUIT
                                                         JANUARY 13, 2006
                        Non-Argument Calendar
                                                         THOMAS K. KAHN
                      ________________________
                                                              CLERK

                  D. C. Docket No. 02-60707-CV-LRJ


VINCENT FAVUZZA, JR.,

                                                    Plaintiff-Appellant,

                                 versus

WILTON MANORS, Police Department,
FORT LAUDERDALE POLICE DEPARTMENT,

                                                    Defendants,

OSCAR GONZALEZ, Officer,
KENNETH KELLEY, Officer,

                                                    Defendants-Appellees.

                      ________________________

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

                           (January 13, 2006)

Before CARNES, MARCUS and PRYOR, Circuit Judges.
PER CURIAM:

       Vincent Favuzza, Jr. appeals the magistrate judge’s denial of his motion for a

new trial based on improper closing argument in his 42 U.S.C. § 1983 action against

Wilton Manors Police Department Officer Oscar Gonzalez and Fort Lauderdale

Police Department Officer Kenneth Kelley, as well as the officers’ respective police

departments, alleging that violations of Favuzza’s Fourth, Fifth, and Fourteenth

Amendment rights occurred in the course of his arrest. After careful review of the

pertinent parts of the record and consideration of the parties’ arguments, we affirm

the magistrate judge’s decision.1

       The parties are familiar with the underlying facts and, accordingly, we limit our

factual discussion to the circumstances surrounding the motion for a new trial. Prior

to trial, Officer Kelley moved in limine to exclude any evidence regarding his Internal

Affairs file (“IA file ”). In support of the motion, Kelley’s counsel told the district

court that the IA file was “on other matters that have nothing to do with this case,”

to which Favuzza attorney responded: “Your honor, we don’t intend to introduce any

of that evidence.” Thus, the parties’ agreement on the exclusion of the IA file




       1
        The parties filed a written consent to proceed before a magistrate judge, pursuant to 28
U.S.C. § 636.

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ultimately mooted the limine motion. There was no further discussion of the IA file,

nor was the file introduced or so much as referenced during the subsequent trial.

      At the end of the two-day jury trial, during her closing argument, Gonzalez’s

counsel made the following argument, which is now challenged in this appeal:

      Credibility of a witness. you haven’t heard any history, any background
      of either of these two officers that would lead you to believe there was
      anything in their background that gave you reason not to believe them.
      You put that over here, and then you put the credibility of Mr. Favuza
      right here. And who’s the more credible witness? Who is the more
      credible party to this case? An eight-time 25-year-old convicted felon
      or police officers that came before you with no evidence of any prior
      problems on the police force. Let me tell you something, if it was there,
      you would have heard it. So you can only --

Favuzza’s counsel lodged an objection, which the district court overruled.

Gonzalez’s attorney concluded “[y]ou can only assume that it’s not there.” During

rebuttal argument, Favuzza’s attorney said this:

      Now, they say that if these officers had a bad past, if they have been
      accused of this stuff before, you would have heard that. Well, honestly,
      ladies and gentlemen, I don’t know. My co-counsel doesn’t know, and
      Vinnie [Favuzza] doesn’t know. We don’t know about these officers’
      past. We don’t have any resources to find out. So don’t assume that
      they have never done anything wrong. In fact, you can just as much
      assume that they have done something wrong.

Finally, in the course of charging the jury, the district court admonished the jury:

“remember that anything the lawyers say is not evidence in this case.” The jury

returned a verdict in favor of the defendants.

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      Favuzza then moved for a new trial, arguing that the reference to “prior

problems in the police force” prejudiced him and influenced the jury’s verdict to such

an extent that a new trial was warranted. The magistrate judge disagreed. She noted

the high standard applicable to such arguments, which requires the movant to show

that counsel’s improper conduct “was such as to impair gravely the calm and

dispassionate consideration of the case by the jury.” See BankAtlantic v. Blythe

Eastman Paine Webber, Inc., 955 F.2d 1467, 1474 (11th Cir. 1992). In a thorough

and well-reasoned order, the magistrate judge concluded that Favuzza had not met his

burden to show sufficient prejudice. This appeal followed.

      As a preliminary matter, our review of the entire record reveals that it is not at

all clear the challenged argument was improper. Favuzza, who volunteered prior to

trial that he did not intend to use the IA file (thus mooting the in limine motion),

never attempted to offer the IA file or any other evidence of “prior problems in the

police force” in connection with these defendants. Accordingly, counsel’s comments

on the lack of a prior history was an entirely appropriate characterization of the

evidence before the jury.

      Moreover, after defense counsel made the above-quoted argument, Favuzza’s

attorney was given the opportunity to rebut, and did rebut, the plaintiff’s

characterization of the lack of evidence. He argued that, based on the lack of

                                           4
evidence of prior history, the jury could “just as much assume that they have done

something wrong.” In addition to counsel’s rebuttal argument, we note that the

district court advised the jury that the lawyers’ arguments were not evidence.

       Even if the argument was error, we are hard-pressed to conclude that the

argument rose to the level of misconduct necessary for granting a new trial. Again,

in order to warrant a new trial based on improper conduct by counsel, including

improper closing argument, a party must show that “the conduct was such as to impair

gravely the calm and dispassionate consideration of the case by the jury.”

BankAtlantic, 955 F.2d at 1474. Given that no IA file was introduced, due in large

part to Favuzza’s pre-trial agreement that he was not going to introduce such

evidence, we fail to see how an argument highlighting that omission affected, one

way or the other, the jury’s decision. Indeed, as Favuzza’s attorney recognized during

rebuttal argument, the lack of such evidence could just as well have been construed

in his client’s favor.

       Simply put, we can find no abuse of the magistrate judge’s broad discretion in

ruling on the motion for new trial. See id. (reviewing district court’s denial of motion

for new trial based on counsel’s improper conduct for abuse of district court’s “broad

discretion”). As we have explained, abuse-of-discretion review




                                           5
      recognizes the range of possible conclusions the trial judge may reach.
      By definition . . . under the abuse of discretion standard of review there
      will be occasions in which we affirm the district court even though we
      would have gone the other way had it been our call. That is how an
      abuse of discretion standard differs from a de novo standard of review.
      As we have stated previously, the abuse of discretion standard allows a
      range of choice for the district court, so long as that choice does not
      constitute a clear error of judgment.

United States v. Frazier, 387 F.3d 1244, 1259 (11th Cir. 2004) (en banc) (internal

quotation marks and citations omitted), cert. denied, 125 S. Ct. 2516, 161 L. Ed. 2d

1114 (2005). In the context of alleged improper conduct by counsel, application of

the deferential abuse-of-discretion standard is particularly appropriate since it is the

magistrate judge who “had the opportunity to hear the [allegedly] offensive remarks

within the context of the argument and to view their effect on the jury."”

BankAtlantic, 955 F2d at 1474 (internal quotation marks and citation omitted). Our

review of the record reveals no abuse of discretion by the magistrate judge who, in

a well-reasoned order, thoroughly considered and rejected all of the arguments

Favuzza raises here. Accordingly, we affirm.

      AFFIRMED.




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