NOT RECOMMENDED FOR PUBLICATION File Name: 24a0228n.06
Case No. 23-5203
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT FILED May 31, 2024 ) KELLY L. STEPHENS, Clerk JEREMIAH ALLSOPP, ) Plaintiff – Appellant, ) ) ON APPEAL FROM THE UNITED v. ) STATES DISTRICT COURT FOR ) THE EASTERN DISTRICT OF CODY FOUST, ) TENNESSEE Defendant – Appellee. ) ) OPINION )
Before: SILER, COLE, and MATHIS, Circuit Judges.
SILER, Circuit Judge. Jeremiah Allsopp sued Coffee County corrections officer Cody
Foust under 42 U.S.C. § 1983, alleging that Foust used excessive force against him during an
altercation.1 The jury reached a verdict in favor of Foust. After trial, Allsopp unsuccessfully
moved for judgment as a matter of law on the issue of liability, and for a new trial based on liability,
admission of his jail classification sheet at trial, and comments made during the defense’s closing
arguments. Allsopp appeals the denial of that motion, and we affirm.
I.
While awaiting trial, Allsopp, who was held as a high-risk inmate in the maximum security
“BB pod” at Coffee County jail, got into a heated verbal argument with another inmate. Officer
Young, a corrections officer at the jail, intervened to separate the two men. As Officer Young
1 Allsopp also sued Coffee County, and the district court granted summary judgment in favor of the County. However, Allsopp dropped his appeal against the County in a motion on November 2, 2023, electing to proceed on appeal solely against Foust. No. 23-5203, Allsopp v. Foust
separated them, Allsopp swatted away Officer Young’s hand and said, “don’t touch me.” Officer
Foust, seeing this, responded. How he responded forms the center of the parties’ dispute.
According to Allsopp, Foust violently grabbed Allsopp by the neck, lifted him off the
ground and slammed him into a wall. Foust allegedly then began choking Allsopp, causing
Allsopp to twist Foust’s hand so as to break Foust’s grip. This caused Foust pain, and Foust then
“slammed [Allsopp] to the floor and continued to choke him until he blacked out.” Inmates
Edward Worthy and Kyle Wallace testified similarly. Wallace’s testimony broadly corroborated
Allsopp’s testimony, with the exception that he did not claim Foust lifted Allsopp off the ground
by his neck. Worthy’s testimony was also corroborative, except that he claimed Foust choked
Allsopp before throwing him to the ground.
The defense testimony painted a very different story. Four corrections officers, including
Foust, testified. Officer Perez testified that Foust saw Allsopp swat Young’s hand away and
intervened to admonish Allsopp, saying, “do not swat my officers.” He then stated that Allsopp
grabbed Foust’s hand, whereupon Foust and Young “took him down to the floor.” Officer Bennett
testified that when Young separated the arguing inmates, Allsopp “smack[ed]” Young’s hand away
twice, whereupon Foust intervened. Foust told Allsopp not to touch his officers, and Allsopp
swore at Foust. Bennett then testified that Allsopp used some kind of martial arts move on Foust,
creating danger for the outnumbered officers and requiring that Allsopp be taken to the floor and
handcuffed. However, on cross-examination he appeared to concede that Foust touched Allsopp
first. Officer Young testified that after Allsopp swatted away Young’s hand, Foust walked into
the room and grabbed Allsopp and threw him against the wall.
Foust testified that when he directed Allsopp not to touch his officers, Allsopp cursed back
and continued yelling. “Foust told Allsopp to back up but he refused” and took a step forward.
2 No. 23-5203, Allsopp v. Foust
Foust interpreted this as a threat and placed Allsopp against the wall to handcuff him. Allsopp
was able to break Foust’s hold and cause him to cry out in pain, whereupon Foust took him to the
ground and handcuffed him.
Prior to trial, Allsopp moved in limine to exclude any evidence of his twenty-four prior
felony convictions. He argued that they were unfairly prejudicial under Rule of Evidence 403
because of their sexual nature, and that they were also not admissible as Rule 609 impeachment
evidence because they were not crimes of deceit. The district court granted his motion in part,
excluding any evidence “of the specific nature of [Allsopp’s] felonies” but allowing evidence of
“the fact that [he] has been convicted of twenty-four felonies.”
At trial, defendants admitted Allsopp’s jail Classification Sheet, which listed the type of
crime for which he was then detained, a summary of his criminal history, and the jail’s assessment
of his level of dangerousness. The sheet was redacted to show only that he was convicted of an
“Assaultive Felony”; there was no mention of the sexual nature of his prior crimes. Allsopp
unsuccessfully objected, and the court noted that it did not admit the document as character
evidence to show that “Allsopp had an assaultive character,” but rather to show why he had been
placed into the highest security area of the jail, and why Defendants reacted the way they did to
the altercation.
While cross-examining Officer Bennett, Allsopp’s attorney referenced Bennett’s PTSD
from combat service in the United States Marine Corps. Bennett’s memory and mental capacity
were potentially at issue, and there was some question about whether Bennett had been terminated
from his job at the jail because of memory issues. Defense counsel objected, and the district court
overruled the objection. On re-direct, defense counsel attempted to ask Bennett if he thought it
3 No. 23-5203, Allsopp v. Foust
was “fair” for Allsopp’s attorney to ask about his military injuries and if he “appreciated being
asked [the] question,” but the district court sustained Allsopp’s objections to both questions.
Defense counsel referenced this exchange during closing arguments, asking the jury to
recall that moment when, as “thanks for” his testimony, Bennet was “grilled . . . about his military
experience.” Counsel asked the jury to, when “considering the credibility of the people who are
in front of you, and especially the person who is asking you for money damages, [consider] why
do you go after a war veteran?” Allsopp’s attorney objected, but the court overruled the objection,
suggesting to defense counsel, “why don’t you move along.”
Defense counsel also referenced two elements of Allsopp’s character in closing: his status
as a felony offender, and his alleged failure to abide by prison rules. First, counsel cautioned the
jury that “if you even give the plaintiff in this case so much as a nickel or a dime, you would be
giving that to a plaintiff with 24 or 25 felony convictions.” Allsopp’s attorney objected and was
overruled. Defense counsel also cautioned the jury that they “would be entering a judgment in
favor of a plaintiff who violated by his own admission the cardinal rule inside a jail of don’t touch
the corrections officers . . . so don’t give him as much as a nickel or a dime.” Allsopp’s attorney
did not object to this second statement.
At the close of the evidence, both parties moved for judgment as a matter of law and were
denied. After the jury returned a verdict in favor of Foust, Allsopp moved for judgment as a matter
of law and a new trial pursuant to Federal Rules of Civil Procedure 50(b) and 59(a). The district
court denied both motions and this appeal followed.
II.
On appeal, Allsopp raises the same arguments he made before the district court.
Specifically, he argues that he should have been granted judgment as a matter of law under Rule
4 No. 23-5203, Allsopp v. Foust
50(b), and, in the alternative, that he should have been granted a new trial under Rule 59. He then
argues that admission of the classification sheet violated the court’s own order and the Rules of
Evidence, that defense counsel’s closing argument invited the jury to decide the case on
impermissible grounds, and that both these errors demand a new trial.
A.
When, as here, the motion for judgment as a matter of law is renewed after the jury’s
verdict, we may allow the verdict to stand, order a new trial, or enter judgment for the moving
party. Fed. R. Civ. P. 50(b). To prevail on his unreasonable force claim, Allsopp was required to
show by a preponderance of the evidence that the use of force was not objectively reasonable.
Kingsley v. Hendrickson, 576 U.S. 389, 397 (2015). Reasonableness is based on the facts known
at the time through the eyes of a responding officer, not a retroactive judgment from the clarity of
the present. Id. The factors we consider when determining reasonableness are, among others:
(1) the relationship between the altercation and the amount of force used, (2) Allsopp’s injuries,
(3) Foust’s efforts to “temper or to limit” the force, (4) the security risk at the time, (5) “the threat
reasonably perceived by” Foust, and (6) Allsopp’s resistance. Id. (outlining a non-exhaustive list
of possible factors).
Allsopp argues that judgment in his favor is justified because, “by virtually everyone’s
account,” he “was not assaulting anyone but was just arguing.” He claims that “he simply acted
verbally upset, and then took a single step toward Foust.” Because, in his view, “[c]ussing and
yelling” is not a security threat and, somewhat incredibly, “stepping toward someone . . . is a
natural, even respectful thing to do” and that it is “doubtful” that such a movement “could ever
count as resistance,” he argues that Foust’s use of force was entirely unjustified.
5 No. 23-5203, Allsopp v. Foust
But this is not the only conclusion the jury could have reached. See Fed. R. Civ. P. 50(a)
(authorizing entry of judgment when no “reasonable jury would [] have a legally sufficient
evidentiary basis to find for the party on that issue”). On the contrary, viewing the evidence in the
light most favorable to Foust, it becomes clear that the jury was justified in concluding that Allsopp
presented a credible threat to corrections officers and “was prepared to escalate the conflict.”
On the day of the incident, officers intervened in a loud argument during inmates’ one hour
of daily exercise time. Allsopp had apparently removed his rosary beads and the other inmate
removed his glasses in preparation for a fight. Officer Young intervened in this tense scene and
was met with Allsopp’s swatting or slapping away Young’s hand “one or two times in an angry,
defiant manner.” When Foust intervened to reprimand Allsopp, Allsopp, according to witnesses,
said “fuck that,” and took a step toward Foust. Taken in the context of a heated altercation between
high-risk inmates in a dangerous area of the jail and in front of greatly outnumbered officers, it is
hard to imagine this step forward as being the respectful gesture that Allsopp argues it could have
been. Instead, it represents continued belligerence. As the district court noted, “Allsopp’s
response indicated defiance, and created in Officer Foust a concern that Allsopp presented a
continued threat to the safety and security of the corrections officers and the other inmates.” A
reasonable jury could easily conclude that Allsopp presented a threat, and that placing him against
a wall to restrain and handcuff him was reasonable given the circumstances, fulfilling the first
Kingsley factor. Kingsley, 576 U.S. at 397.
Moving to the second Kingsley factor, the evidence is inconclusive that Allsopp suffered
any injuries from the altercation. Id. Allsopp insisted that he suffered from neck pain and impaired
mobility because of the confrontation. And at least one of his witnesses testified that he
complained of pain. However, corrections officers testified that all inmates are observed,
6 No. 23-5203, Allsopp v. Foust
particularly after an incident, and that Allsopp manifested no impaired movement and did not
appear to modify his behavior. Jail medical staff who examined Allsopp noted that there were no
physical manifestations of injury besides some mild arthritis and unexplained neck spasms. There
was sufficient evidence for the jury to conclude that Allsopp was feigning his shoulder injury and
that any issues complained of were not caused by the altercation with Foust.
Foust also applied force commensurate with the threat—in other words, there was ample
evidence for the jury to believe that he “temper[ed] or . . . limit[ed] the amount of force” he used.
Id. The weight of the evidence showed that Foust used accepted best practices to restrain Allsopp
during the incident, despite Allsopp’s resistance. In contrast to Allsopp’s and the other prisoners’
testimony that Foust swept in from the sidelines, grabbed him by the throat, and lifted him clear
of the ground to slam his head into a neighboring wall, most of the testimony reasonably paints a
different picture for the jury: Foust pushed Allsopp against a wall to mitigate the threat he
presented to other officers and detain him with minimal risk to everyone present. While it was
likely not an enjoyable or comfortable experience, the response was not disproportionate to the
situation. Instead, it was “an effective way for a corrections officer—vastly outnumbered by the
inmates—to maintain control over an unruly inmate without the assistance of other corrections
officers.”
Foust subsequently pushed Allsopp to the floor to detain him. This too was reasonable
considering Allsopp’s resistance to Foust’s attempts to handcuff him. Numerous witnesses
testified that Allsopp executed some kind of “martial arts move” on Foust while against the wall,
causing Foust to cry out in pain. A jury could easily conclude that taking the struggle to the floor
was entirely reasonable in light of the situation at the time. Therefore, the third and sixth Kingsley
factors are satisfied. Id.
7 No. 23-5203, Allsopp v. Foust
The jury heard significant evidence about the potential risk involved in the BB pod at
Coffee County jail and how outnumbered corrections officers were. As the district court noted,
the BB pod housed “the most dangerous inmates,” including Allsopp, who, as his Classification
Sheet noted, was being held for an “assaultive felony.” The unit had an officer-to-inmate ratio of
approximately 3 to 200, making it very dangerous if inmates got the “upper hand” in an altercation.
Corrections officers work under the real threat that inmates, if they gain an advantage, could obtain
nonlethal weapons such as tasers and pepper spray from officers’ belts and use them to incapacitate
the guards. Even items as innocuous as an ink pen, or as minor as a handcuff key or pair of
handcuffs represent a threat in the hands of inmates. This is precisely why inmates are not allowed
to touch officers. These facts cut in favor of Foust on the fourth and fifth Kingsley factors. Id.
In summary, there was ample evidence for the jury to conclude that Foust’s actions were
justified in light of Allsopp’s actions, the circumstances, and the setting. Allsopp therefore falls
far short of the Rule 50(b) standard for judgment as a matter of law, and the court’s decision to
allow judgment on the verdict was justified. See Fed. R. Civ. P. 50(b)(1). We find no error in the
district court’s decision to deny both his motion for judgment in his favor and for a new trial on
Rule 50 grounds.
B.
Allsopp moved in the alternative for a new trial under Rule 59 on three grounds, including
on the grounds of liability cited in his Rule 50(b) motion. He asserts that Rule 59 requires that he
receive a new trial because (1) the jury’s verdict was against the weight of the evidence, (2) the
court admitted prejudicial evidence against him, and (3) the defense attorney’s closing statement
prejudiced the jury.
8 No. 23-5203, Allsopp v. Foust
A new trial is justified under Rule 59 “when a jury has reached a seriously erroneous result
as evidenced by: (1) the verdict being against the weight of the evidence; (2) the damages being
excessive; or (3) the trial being unfair to the moving party in some fashion, i.e., the proceedings
being influenced by prejudice or bias.” Holmes v. City of Massillon, 78 F.3d 1041, 1045–46 (6th
Cir. 1996) (quotations omitted). As with review of a Rule 50(b) motion, we do not evaluate the
credibility of witnesses or substitute our own judgment for that of the jury; instead, if the jury’s
decision is reasonable, the verdict stands. Woodbridge v. Dahlberg, 954 F.2d 1231, 1234 (6th Cir.
1992). We review denial of a Rule 59 motion for abuse of discretion. Pittington v. Great Smoky
Mountain Lumberjack Feud, LLC, 880 F.3d 791, 798-99 (6th Cir. 2018).
1.
Allsopp’s argument in support of Rule 59 relief essentially mirrors his argument for
judgment as a matter of law under Rule 50. And as with that argument, it is wrong. The jury’s
verdict is supported by substantial evidence.
2.
Allsopp complains that his jail classification sheet should not have been admitted into
evidence, and that its admission prejudiced him before the jury for two reasons: First, because it
violated the district court’s order partially granting his motion in limine to exclude evidence of his
felony convictions, and second, because its characterization of his prior convictions as “assaultive”
violated the Rules of Evidence as too prejudicial. Neither argument has merit.
Allsopp brings his argument under the third scenario for granting a new trial under Rule
59: that of unfairness. Holmes, 78 F.3d at 1045–46. He argues that because the jury was allowed
to see that his prior convictions were “Assaultive Felonies,” they were left with two possible
conclusions: either he had been convicted of multiple “violent altercations” or had been convicted
9 No. 23-5203, Allsopp v. Foust
of sexually deviant acts against minors. Because the first assumption is false and the second is
true but highly prejudicial, he claims that the trial was unfair.
We review a district court’s evidentiary ruling for abuse of discretion. Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 141–42 (1997). The district court abuses its discretion when we are left with
the “definite and firm conviction that the court below committed a clear error of judgment.” Bryant
v. McDonough, 72 F.4th 149, 152 (6th Cir. 2023) (citations omitted). “An erroneous evidentiary
ruling amounts to reversible error, justifying a new trial, only if it was not harmless; that is, only
if it affected the outcome of the trial.” Cummins v. BIC USA, Inc., 727 F.3d 506, 510 (6th Cir.
2013) (citing United States v. Morales, 687 F.3d 697, 701–02 (6th Cir. 2012)). The error must
have affected a party’s “substantial rights.” Fed. R. Civ. P. 61.
Violation of the court’s order. Allsopp argues that the district court allowed the defense to
violate the district court’s own order partially granting his motion in limine by admitting the
classification sheet. He raised this issue with the district court in his motion for a new trial and
was denied.
The district court’s order on Allsopp’s Rule 59 motion effectively dispatched this theory.
The court noted that the original order on the motion in limine acknowledged the highly prejudicial
nature of Allsopp’s prior sexual convictions, stating that “sex offenses and, in particular, sex
offenses with a minor are regarded by our society in general as especially shocking, heinous
crimes.” And while any felony conviction “has probative value bearing on a witness’ credibility,”
these crimes “do not involve an element of dishonesty.” The fact that they are “heavy with
prejudice” caused the court to conclude that “admission of the nature of [Allsopp’s] convictions”
would “suggest a decision . . . based on improper considerations.” Therefore, the court allowed
only information about the bare fact that Allsopp had twenty-four felonies. The court’s rationale
10 No. 23-5203, Allsopp v. Foust
centered on the sexual nature of his prior offenses, and that context meant that only the sexual
nature of the crimes was excluded. Therefore, admission of the redacted classification showing
Allsopp’s crimes as “assaultive” did not violate the court’s prior order.
The prejudicial nature of the word “assaultive.” Allsopp argues that even if admission of
the classification sheet did not violate the court’s order on his motion in limine, the word
“assaultive” invited the jury to speculate on the nature of his prior offenses in ways that prejudiced
him. This, he claims, violates the provisions concerning prejudicial evidence in Rules 403 and
404, and the character evidence prohibition of Rule 609.
As the district court noted in its order, this is not true. The court admitted the classification
sheet for two reasons: to explain why Allsopp was housed in the maximum-security pod at the jail,
and to show that Foust “had good reason to take immediate action” when Allsopp defied him.
And, as the defendant points out, the fact that Allsopp was dangerous and had potentially
committed serious crimes would have been evident to the jury anyway by virtue of the fact that he
was in the maximum security pod at the Coffee County jail.
Admission of the classification sheet as impeachment evidence does not leave us with the
“definite and firm conviction” that the district court “committed a clear error of judgment.”
Bryant, 72 F.4th at 152. Allsopp’s motion was therefore properly denied as to his evidentiary
claim.
3.
Finally, Allsopp argues that three statements made by the defense attorney in his closing
argument were improper because they invited the jury to decide the case on impermissible grounds.
The defense attorney asked the jury not to award damages because Allsopp (1) questioned Bennett
about his service-related PTSD injuries, (2) was a felon, and (3) did not obey jail rules. We do not
11 No. 23-5203, Allsopp v. Foust
believe that these statements clear the high bar for reversal based on allegedly improper closing
arguments.
Attorneys are given wide latitude in how to present their case, particularly in closing
arguments. “[C]losing argument serves to sharpen and clarify the issues for resolution by the trier
of fact,” something that is only possible at the end of proceedings when all evidence has been
presented. Herring v. New York, 422 U.S. 853, 862 (1975). Then, counsel respectively addresses
the jury and “argue[s] the inferences to be drawn” and “point[s] out the weaknesses of their
adversaries’ positions.” Id. In our adversarial system, this is the pinnacle of the trial, and as the
Supreme Court noted, “no aspect of [] advocacy could be more important.” Id. Latitude here is
essential to the role of an attorney. See Yarborough v. Gentry, 540 U.S. 1, 5-6 (2003) (per curiam)
(noting that the “broad range of legitimate defense strategy” necessarily requires latitude in closing
arguments).
In light of this, Allsopp “must meet a high standard to obtain a new trial on the grounds of
improper statements by opposing counsel.” CFE Racing Prods., Inc. v. BMF Wheels, Inc., 793
F.3d 571, 589 (6th Cir. 2015). The remedy he seeks is “sparingly exercised on appeal,” and
involves significant deference to the trial court. Id. (quoting City of Cleveland v. Peter Kiewit
Sons’ Co., 624 F.2d 749, 756 (6th Cir. 1980)). This deference stems from the realities of the
judicial system, particularly the trial court’s significant “discretion in determining whether an
objectionable [statement] is so prejudicial as to require a retrial,” and our concomitant reluctance
to question such a decision based on a “cold record.” City of Cleveland, 624 F.2d at 756; see also
Balsley v. LFP, Inc., 691 F.3d 747, 761–62 (6th Cir. 2012).
Allsopp must then clear a second hurdle: proving that “there is a reasonable probability
that the verdict of the jury has been influenced” by the statements. CFE Racing Prods., Inc., 793
12 No. 23-5203, Allsopp v. Foust
F.3d at 590 (quotations omitted). Thus, it is insufficient to simply show that the statements were
improper; he must show that they violated counsel’s duty not to “introduce extraneous matters
before [the] jury or, by questions or remarks, endeavor to bring before it unrelated subjects” and
that such a breach was reasonably likely to have influenced the final verdict. City of Cleveland,
624 F.2d at 756 (quotations omitted). We hold that Allsopp failed to bear his burden.
Questioning a military veteran. Allsopp’s attorney asked Bennett on cross-examination
about his service-related PTSD injuries and his termination from employment at the jail. The
attorney did so in an effort to impeach Bennett’s memory of events. Defense counsel objected and
was overruled. During closing, defense counsel asked the jury to recall that moment when, as
“thanks for” his testimony, Bennett was “grilled . . . about his military experience.” Counsel asked
the jury to, when “considering the credibility of the people who are in front of you, and especially
the person who is asking you for money damages, [consider] why do you go after a war veteran?”
In addressing this objection on Allsopp’s original motion for a new trial, the district court
acknowledged that it would have been wrong for defense counsel to “suggest to the jury that
Allsopp’s counsel’s arguments should be discounted because his questioning could be deemed
critical of a war veteran” but concluded that the issue was “not significant enough” to be a problem.
We agree. Although extensive comments along these lines would have been problematic, this
issue was quickly addressed during cross-examination, and again during closing arguments, when
the trial judge urged defense counsel to “move along.” This is hardly the kind of pervasive
misconduct which warrants a conclusion on our part that the verdict was likely affected.
Awarding damages to a felon. Second, Allsopp objects to defense counsel’s comments
that any money damages awarded to Allsopp would be awarded to a convicted felon. Specifically,
counsel stated, “Ladies and gentlemen, if you even give the plaintiff in this case so much as a
13 No. 23-5203, Allsopp v. Foust
nickel or a dime, you would be giving that to a plaintiff with 24 or 25 felony convictions.”
Allsopp’s attorney objected and was overruled.
The district court, in denying the Rule 59 motion, noted that when “observing [counsel’s]
closing argument in real time” it thought that counsel “was simply reminding the jurors of evidence
that had actually been presented to them during the trial.” And while it conceded that “[i]n
retrospect, [defense counsel] came extremely close to crossing an impermissible line[,]” counsel’s
comments did not actually cross that line.
We agree. Because there was no video footage, this case rested entirely on witness
testimony. It is therefore reasonable, justifiable, and entirely predictable that defense counsel
would point to Allsopp’s criminal convictions as probative of his truthfulness. Few witnesses
agreed in all respects, and Allsopp’s testimony was the most extreme in its allegations. Defense
counsel was therefore entirely within his rights to draw the jury’s attention to Allsopp’s
untrustworthiness as a way of bolstering his own case and witnesses.
Awarding damages to a rule-breaker. Finally, Allsopp objects to defense counsel’s
comments about prison rules. During closing, counsel told the jury that if they awarded damages,
then “you would be entering a judgment in favor of a plaintiff who violated . . . the cardinal rule
inside a jail of don’t touch the corrections officers . . . so don’t give him as much as a nickel or a
dime.” This comment occurred very shortly after the comment about awarding a felon, and
Allsopp’s counsel did not object. The district court noted that even if he had, the objections would
have been overruled.
As the district court noted in its order denying Allsopp’s Rule 59 motion, defense counsel
made these comments in the broader context of contesting Allsopp’s characterization of his own
actions as nonthreatening. In response, defense counsel highlighted for the jury the inherent
14 No. 23-5203, Allsopp v. Foust
danger that corrections officers worked under, how outnumbered they were, and the “cardinal jail
rule” that inmates do not touch the officers. While counsel’s statement, taken alone, certainly
could appear to invite the jury to return a verdict against Allsopp simply because he broke jail
rules, the broader context and Allsopp’s failure to object at the time the comment was made
counsel against reversal. The district court’s refusal to grant a new trial was not an error.2
Finally, taken in the aggregate, these three comments do not amount to prejudicial conduct
sufficient to meet the high bar Allsopp faces here. Counsel’s first two comments were mitigated
by the court’s admonitions or justified by Allsopp’s argumentation and the nature of the case, and
the final statement, made without objection, is similarly benign. See CFE Racing Prods., Inc., 793
F.3d at 590 (“[F]ailure to object ‘raise[s] the degree of prejudice which must be demonstrated’ in
order for this Court to grant the request for a new trial.” (second alteration in original) (quoting
Strickland v. Owens Corning, 142 F.3d 353, 358 (6th Cir. 1998)).
The judgment is AFFIRMED.
2 Our conclusion is further bolstered by the district court’s inclusion of a jury instruction explicitly informing jurors that “[t]he lawyers’ statements and arguments are not evidence.”