
USCA1 Opinion

	




                                [NOT FOR PUBLICATION]                                [NOT FOR PUBLICATION]                            UNITED STATES COURT OF APPEALS                                FOR THE FIRST CIRCUIT        No. 96-2208                                   MANUEL TAVARES,                                 Plaintiff, Appellee,                                          v.                               MICHIGAN FISHING, INC.,                                Defendant, Appellant.                                                                                      ____________________                     APPEAL FROM THE UNITED STATES DISTRICT COURT                          FOR THE DISTRICT OF MASSACHUSETTS                     [Hon. William G. Young, U.S. District Judge]                                             ___________________                                                                                      ____________________                                        Before                                Stahl, Circuit Judge,                                       _____________                              Cyr, Senior Circuit Judge,                                   ____________________                              and Lynch, Circuit Judge.                                         _____________                                                                                      ____________________             Thomas E. Clinton, with whom Clinton & Muzyka, P.C. was on brief             _________________            ______________________        for appellant.             Michael B. Latti, with whom Carolyn M. Latti and Latti Associates             ________________            ________________     ________________        LLP were on brief for appellee.        ___                                                                                      ____________________                                   October 24, 1997                                                                                      ____________________                    Per  Curiam.     Michigan  Fishing,  Inc.  ("Michigan")                    Per  Curiam                    ___________          appeals the district  court's denial of its motion  for new trial          after the jury found  it liable under the Jones Act,  46 U.S.C.            688  (Supp. 1997),  for bodily  injuries  sustained by  plaintiff          Manuel Tavares while a seaman  aboard the F/V CONCORDIA, owned by          Michigan.   In particular,  Michigan contends that  the following          jury argument by plaintiff's counsel was unfairly prejudicial:                         [Captain   Jacobsen]   says,   I   don't                    remember.   I don't  remember whether  I gave                    someone a  list after  this accident,  to fix                    it.   I don't  remember.   I don't  remember.                    That's  all he keeps  on saying, but  we know                                                     ___  __ ____                    that  four days  after there was  this repair                    ____  ____ ____  _____ _____ ___  ____ ______                    done  and there was an invoice  for it and it                    ____  ___ _____ ___ __ _______  ___ __ ___ __                    was  done   and  it  was  on  that  starboard                    ___  __________  __  ___  __  ____  _________                    hoister.  (emphasis added).                    _______    ________ _____          Michigan argues  that  the quoted  language invited  the jury  to          treat  the invoice  as substantive  evidence  of liability,  even          though the invoice was never admitted in evidence.                    There  was  no abuse  of  discretion.    See Correa  v.                                                             ___ ______          Hospital San Francisco, 69 F.3d 1184, 1194 (1st Cir. 1995), cert.          ______________________                                      _____          denied, 116 S. Ct.  1423 (1996).  The same invoice  had been used          ______          earlier to  impeach the ship's  captain, after he  denied knowing          whether any repairs were made  to the hoister after the accident.          Furthermore, the trial judge promptly cautioned the jury that the          invoice was not to be  considered substantive evidence, but  only          for impeachment purposes.                    Michigan nonetheless maintains that  the jury must have          disregarded the district court instruction.  It points to a later          jury  note:   "Why  was  invoice for  repairs  not submitted  for                                          2          evidence?  Exactly  what did it show."   Thereafter, however, the          trial  judge firmly  disabused  the  jury  of  any  misconception          portended by the note:                         First, "Why was  invoice for repairs not                    submitted for  evidence?"   Because it's  not                    admissible under the laws of evidence and the                    law governing this case.                         So, in  answer to  the second  question,                    I'll  have nothing to say about what it shows                    or  not . . . or even  if it's an invoice for                    repairs.  You  have heard those things  which                    are admissible  and I  have charged you  with                    respect to them.                     Coupled with  its earlier instruction  that the invoice          could be considered only "to get a handle on the believability of          the witnesses who  testified before [the jury], and  nothing else          whatsoever[,]" the district court's later cautionary  instruction          was sufficient to keep  the jury on the proper track.   See Conde                                                                  ___ _____          v.  Starlight I,  Inc., 103  F.3d 210, 213  (1st Cir.  1997) ("We              __________________          normally  presume that a  jury follows instructions  to disregard          improper argumentation.").                    Affirmed.                    Affirmed                    ________                                          3
