Gustavo Abella v. Alex Rey

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 22-12673
Non-Argument Calendar
____________________
GUSTAVO A. ABELLA,
Plaintiff-Appellant,
versus
TOWN OF MIAMI LAKES,
TOWN OF MIAMI LAKES MAYOR,
Michael Pizzi, Individually and Official Capacity,
MIAMI-DADE COUNTY,
Defendants,
ALEX REY,
Individually and in Official Capacity,
OFFICER JUAN F. RODRIGUEZ,
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 1 of 10

-- 1 of 10 --

2 Opinion of the Court 22-12673
individually and Official Capacity,
Defendants-Appellees.
____________________
Appeal from the United States District Court
for the Southern District of Florida
D.C. Docket No. 1:18-cv-24889-DLG
____________________
Before WILSON, BRASHER , and ABUDU, Circuit Judges.
PER CURIAM:
Gustavo Abella appeals the district court’s exclusion of part
of his testimony and admission of certain email evidence at trial.
He also appeals the district court’s dismissal of his section 1983
claim against Alex Rey and its denial of his motion for a new trial
on the grounds that the verdict was against the weight of the evi-
dence. Because the district court committed no reversible error, we
affirm in full.
I.
Abella, a longtime resident of Miami Lakes, Florida, believes
that he is a victim of the local government’s decade-long conspir-
acy against him. After other courts awarded significant attorney’s
fees against him in his previous lawsuits, and after town manager
Alex Rey obtained a restraining order prohibiting him from
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 2 of 10

-- 2 of 10 --

22-12673 Opinion of the Court 3
entering Town Hall, Abella began placing a political sign on his ve-
hicle accusing Rey of corruption. In the instant case, Abella avers
that Rey and community officer Juan Rodriguez conspired to de-
prive him of his First Amendment rights. Abella alleged that he
would see Rodriguez drive near him and believed that, on occa-
sion, Rodriguez was waiting for him to exit his apartment or was
otherwise blocking his path. On two occasions when their vehicles
were next to each other in traffic, Rodriguez held up his body cam-
era as if he were filming Abella. At trial, Rodriguez used his time-
sheets to corroborate his testimony that he often was not where
Abella claimed he was during their alleged encounters. He did ad-
mit to holding up his body camera, explaining that when he did so,
Abella would “behave” and refrain from making his usual offensive
gestures.
Only two of the amended complaint’s five counts are rele-
vant to this appeal. In Count II, Abella sued Rodriguez under 42
U.S.C. § 1983 for violating his First Amendment rights when he re-
peatedly harassed and intimidated Abella in an attempt to remove
the sign from his vehicle. Count III likewise asserted a claim under
section 1983 against Rey, alleging that he planned to have Abella
arrested for campaigning for a political opponent and that he ex-
hibited deliberate indifference to Rodriguez’s actions. The district
court dismissed Count III against Rey because Abella failed to state
a claim for First Amendment retaliation and, in the alternative, be-
cause Rey was entitled to qualified immunity. Abella and Rodri-
guez proceeded to trial on Count II.
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 3 of 10

-- 3 of 10 --

4 Opinion of the Court 22-12673
At trial, the district court rejected Abella’s request that it re-
dact the names of hundreds of prominent people and organizations
whom Abella copied to emails accusing Rodriguez of various
crimes and misconduct. The district court found evidence of those
addressees relevant to Rodriguez’s defense that Abella was actually
the one harassing him. Additionally, when Abella testified at trial
about an interaction between him and another officer, the district
court sustained a hearsay objection and prohibited Abella from re-
citing the officer’s remarks. Unlike Abella, that officer was permit-
ted to testify about the conversation.
After a three-day trial, the jury returned a verdict with an-
swers to special interrogatories. They concluded that although Ro-
driguez did harass Abella, the displayed political sign was not a mo-
tivating factor. Accordingly, the jury found in favor of Rodriguez.
Abella moved for a new trial. After the district court denied the
motion, Abella timely appealed.
II.
First, we will consider Abella’s argument that the district
court erred in dismissing his claim against Rey for First Amend-
ment retaliation. Rey previously moved to dismiss Abella’s appeal
against him, arguing that we lacked jurisdiction because the case
caption in the notice of appeal did not include Rey’s name. We cor-
rectly denied the motion because the caption did not imply an in-
tent to limit the scope of the appeal to only Rodriguez. Unlike the
appellants in Osterneck, who specified only four of five defendants
in the title and body of their notice, Abella did not expressly name
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 4 of 10

-- 4 of 10 --

22-12673 Opinion of the Court 5
the defendants in his notice. Osterneck v. E.T. Barwick Indus., Inc.,
825 F.2d 1521, 1524, n.3 (11th Cir. 1987), aff’d sub nom. Osterneck v.
Ernst & Whinney, 489 U.S. 169 (1989). Although only Rodriguez
was identified in the caption, Abella simply used the same caption
the district court used in its final judgment and order denying his
motion for a new trial. Because a notice “encompasses all orders
that, for purposes of appeal, merge into the designated judgment
or appealable order,” even if the notice does not designate those
merged orders, we have jurisdiction to consider the district court’s
dismissal of the claim against Rey. Fed. R. App. P. 3(c)(4).
We review a district court’s order granting a motion to dis-
miss for failure to state a claim de novo. Hopper v. Solvay Pharms.,
Inc., 588 F.3d 1318, 1324 (11th Cir. 2009). “We accept the factual
allegations in the complaint as true and construe them in the light
most favorable to the plaintiff.” Echols v. Lawton, 913 F.3d 1313,
1319 (11th Cir. 2019).
The district court properly dismissed Count III for failing to
state a claim for First Amendment retaliation. Although Abella did
engage in protected speech by campaigning for Rey’s political op-
ponent, he failed to allege facts that Rey’s conduct adversely af-
fected his protected speech or that a causal connection existed be-
tween his speech and any retaliatory conduct. See id. at 1320. Abella
allegedly left the campaign location based on an anonymous sec-
ond-hand rumor that Rey intended to have him arrested for some
unknown reason. The complaint failed to include any allegations
of facts that “would likely deter a person of ordinary firmness from
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 5 of 10

-- 5 of 10 --

6 Opinion of the Court 22-12673
the exercise of First Amendment rights.” Bailey v. Wheeler, 843 F.3d
473, 481 (11th Cir. 2016). For example, there were no allegations
that Rey communicated with Abella in any way before or after Rey
arrived at the campaign location, that any law enforcement officers
were present, or that Rey could have ordered the police to arrest
Abella if he wanted. Accordingly, there was no actual or implied
threat of arrest. See Turner v. Williams, 65 F.4th 564, 580 (11th Cir.
2023). Because we affirm the district court’s dismissal for failing to
state a claim, we need not address its secondary finding on qualified
immunity.
III.
Next, we will consider the district court’s evidentiary rulings
at the Rodriguez trial. We review for an abuse of discretion, affirm-
ing the district court unless the ruling rests upon clearly erroneous
findings of fact, conclusions of law, or applications of law to fact.
Furcron v. Mail Centers Plus, LLC, 843 F.3d 1295, 1304 (11th Cir.
2016). We will affirm even if the district court committed an error
if that error did not affect the substantial rights of the parties. Id.
When the effect on the verdict is uncertain, a party fails to show
the error affected his substantial rights. See United States v. Rodri-
guez, 398 F.3d 1291, 1299 (11th Cir. 2005).
Abella argues that the district court erred in sustaining a
hearsay objection to his testimony about statements another of-
ficer made to him, despite permitting the officer to testify at trial
about their conversation. Assuming without deciding that the hear-
say ruling was incorrect, any such error was harmless because it did
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 6 of 10

-- 6 of 10 --

22-12673 Opinion of the Court 7
not have a substantial influence on the outcome of the case. United
States v. Frazier, 387 F.3d 1244, 1266 n.20 (11th Cir. 2004). Abella
does not even attempt to argue that the admission of his testimony
would have likely changed the verdict. Instead, he contends that
“[t]here are any number of legitimate reasons” why he would be
able to provide “different details” at trial about the conversation
with the officer. But beyond this cursory argument, there is no in-
dication that Abella’s substantial rights were affected by the hear-
say ruling. Abella’s trial counsel barely cross-examined the testify-
ing officer, even though cross-examination is the principal means
by which Abella could have tested the truth of the officer’s testi-
mony. United States v. Mastin, 972 F.3d 1230, 1239 (11th Cir. 2020).
The jury also learned that Rodriguez was not even at the scene of
the interaction. Moreover, a video recording of the incident con-
firmed the officer’s account. Because there is no indication that the
hearsay ruling affected Abella’s substantial rights, we affirm the dis-
trict court’s ruling.
Abella also argues that the district court erred in admitting
his email complaints without redacting the names of certain recip-
ients because that evidence was not relevant and constituted im-
permissible character evidence. Although Federal Rule of Evidence
608(b) prohibits extrinsic evidence solely designed to attack a wit-
ness’s character for truthfulness, it permits evidence to demon-
strate bias or undercut a witness’s credibility. United States v. Bur-
nette, 65 F.4th 591, 606–07 (11th Cir. 2023). We have recognized
that the line between evidence used to impeach a witness because
he lacks credibility and evidence used to show he tends to lie is
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 7 of 10

-- 7 of 10 --

8 Opinion of the Court 22-12673
hazy. Id. at 607. For this reason, we are reluctant to hold that a dis-
trict court abuses its discretion when deciding Rule 608(b) issues.
Id.
Abella sent emails accusing Rodriguez of various crimes to
hundreds of prominent members of the government and media,
such as former President Trump, FBI offices, local news networks,
the New York Times, Sean Hannity, Roger Stone, and Infowars.
Evidence of those recipients was relevant to Rodriguez’s defense
that Abella was the one engaging in harassing behavior. It also ar-
guably demonstrated Abella’s lack of credibility and bias as a wit-
ness. Because Abella accused Rodriguez of a litany of salacious
crimes to prominent members of the government and media, a rea-
sonable jury could infer that Abella was a biased witness with a
deep animosity towards him. Because we cannot say that the court
abused its discretion, we affirm the district court’s decision not to
redact the email addresses.
IV.
Abella’s final argument on appeal is that the district court
erred in denying his motion for a new trial because the jury’s sec-
ond interrogatory answer was against the manifest weight of the
evidence. Whether to grant or deny a new trial based on the weight
of the evidence “is within the sound discretion of the trial court.”
United States v. Martinez, 763 F.2d 1297, 1312 (11th Cir. 1985). We
may only reverse if the trial court clearly abused that discretion, id.,
which is a “particularly appropriate” standard “where a new trial is
denied and the jury’s verdict is left undisturbed.” Rosenfield v.
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 8 of 10

-- 8 of 10 --

22-12673 Opinion of the Court 9
Wellington Leisure Prods., Inc., 827 F.2d 1493, 1498 (11th Cir. 1987).
“The evidence must preponderate heavily against the verdict, such
that it would be a miscarriage of justice to let the verdict stand.”
Martinez, 763 F.2d at 1313. We have explained that these motions
are disfavored, and courts should grant them only in exceptional
cases. Id.
The district court did not abuse its discretion in denying the
motion for new trial because the jury’s verdict was not against the
great weight of the evidence. Abella admits in his brief that the case
“largely came down to which version of evidence—Mr. Abella’s or
Rodriguez’s—the jury believed.” In reviewing a district court’s de-
nial of a motion for a new trial, we have a duty to safeguard the
role of the jury. Rabun v. Kimberly-Clark Corp., 678 F.2d 1053, 1061
(11th Cir. 1982). It is for the jury, not the court, to weigh conflicting
evidence and determine witness credibility. Yates v. Pinellas Hema-
tology & Oncology, P.A., 21 F.4th 1288, 1304 (11th Cir. 2021).
Based on our review of the record, there are many conceiv-
able reasons the jury could have found Rodriguez more credible
than Abella. Rodriguez presented evidence that Abella was biased.
Abella was unable to pay the judgments for attorney’s fees from
previous cases and therefore had a financial reason to manufacture
the claims. He also had a deep animosity for Rodriguez and accused
him of a litany of unrelated crimes to prominent people in the gov-
ernment and media. Abella’s demeanor during his testimony at
trial also could have undermined his credibility with the jury. He
constantly needed his memory refreshed, and the court had to
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 9 of 10

-- 9 of 10 --

10 Opinion of the Court 22-12673
chastise him dozens of times for failing to answer direct questions.
Because the verdict was not against the great weight of the evi-
dence, we affirm the district court’s denial of Abella’s motion for
new trial.
V.
For the foregoing reasons, the district court is AFFIRMED.
USCA11 Case: 22-12673 Document: 73-1 Date Filed: 02/22/2024 Page: 10 of 10

-- 10 of 10 --