Gerald D. Burbank, Plaintiff-appellee, v. Larry Morris, Defendant-appellant,andterry Campbell, John Junk, Edward Powers, Kevin Reardon, Andboard of County Commissioners of Leavenworthcounty, Defendants, 16 F.3d 415 (10th Cir. 1994)

McKAY

The parties have agreed that this case may be submitted for decision on the briefs. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1.2. The case is therefore ordered submitted without oral argument.

Defendant-Appellant appeals a jury verdict for Plaintiff on his 42 U.S.C.1983 claim of excessive force by police officers. Defendant-Appellant alleges that the trial court erred in denying its motions for a mistrial and a new trial. Specifically, Defendant-Appellant contends that Plaintiff's attorney's reference to past civil rights violations by one of the officers violated Federal Rule of Evidence Rule 404(b), and resulted in prejudice by the jury against the officers. The district court found that under the totality of the circumstances, including the limiting instructions given to the jury and the strength of Plaintiff's case, the remarks did not unfairly prejudice Defendant-Appellant or deprive him of substantial justice. We review a district court's refusal to grant a mistrial or a new trial for an abuse of discretion. United States v. Martinez, 979 F.2d 1424, 1431 (10th Cir. 1992) (denial of mistrial reviewed for abuse of discretion), cert. denied, 113 S. Ct. 1824 (1993); Holmes v. Wack, 464 F.2d 86, 89 (10th Cir. 1972) (denial of new trial reviewed for abuse of discretion). We do not believe that the district court abused its discretion in so finding.

AFFIRMED.