govinfo:USCOURTS-kyed-5_23-cr-00109-3

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UNITED STATES DISTRICT COURT 
EASTERN DISTRICT OF KENTUCKY 
CENTRAL DIVISION 
(at Lexington) 
 
UNITED STATES OF AMERICA,  
 
 Plaintiff, 
 
V. 
 
TANNER M. ABBOTT,  
 
Defendant. 
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Criminal Action No. 5: 23-109-DCR 
 
 
 
MEMORANDUM OPINION 
AND ORDER 
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 This matter is pending for consideration of Defendant Tanner Abbott’s motion for a 
new trial.  Abbott contends that the Court erred by failing to grant his pretrial motion to sever 
various charges for purposes of trial  and by failing to exclude “other acts” evidence that the 
government was permitted to introduce pursuant to Rule 404(b) of the Federal Rules of 
Evidence.  The defendant’s motion will be denied for the reasons that follow. 
I. 
 A federal grand jury indicted Abbott on seven counts relating to his abuse of authority 
while acting as a deputy sheriff with the Boyle County, Kentucky Sheriff’s Office.
1  Count 1 
alleged that on or about April 28, 2021, Abbott used unreasonable force while arresting an 
individual identified as J.C. in Jessamine County, Kentucky, in violation of 18 U.S.C. § 242.  
Count 2 alleged that on or about February 2, 2021, Abbott used unreasonable force while 
arresting an individual identified as W.W. in Boyle County, Kentucky, in violation of 18 
 
1 Abbott was indicted on October 5, 2023.  A grand jury returned a superseding indictment 
on December 7, 2023, which did not add any charges, but corrected some details such the counties 
in which the events were alleged to have occurred. 
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U.S.C. § 242.  Count 3 alleged that Abbott conspired with another person to falsify records  
related to his arrest of W.W. in violation of 18 U.S.C. § 1519. 
 Counts 4, 5, and 6 were alleged to have occurred on or about March 31, 2021, in Mercer 
County, Kentucky and involve an individual identified as B.T .  Count 4 alleged that  Abbott 
illegally searched B.T.’s hotel room in violation of 18 U.S.C. § 242.  Count 5 alleged that 
Abbott falsely documented that B.T. had given consent for Abbott to search his hotel room, in 
violation of 18 U.S.C. § 1519.  And Count 6 alleged that Abbott used unreasonable force while 
arresting B.T. in violation of 18 U.S.C. § 242. 
 Finally, Count 7 alleged that on or about January 20, 2021, in Boyle County, Abbott 
used unreasonable force while arresting two individuals identified as D.N. and C.B., in 
violation of 18 U.S.C. § 242. 
 On November 16, 2023, Abbott filed a motion to sever the charges into three separate 
jury trials.2  He argued that Count 1, Counts 2 through 6, and Count 7 should be tried separately 
because the evidentiary overlap between those counts would be minimal and he  would suffer 
undue prejudice if all counts were tried together.  The Court, however, determined that joinder 
was proper pursuant to Rule 8(a) of the Federal Rules of Criminal Procedure .  And because  
Abbott failed to demonstrate substantial, compelling , or undue prejudice  as required under 
Rule 14(a), the undersigned denied the motion to sever.  [Record No. 35]   
 Following a five -day trial, a jury convicted Abbott of all charges except Count 6.  
Abbott filed a motion for a new trial pursuant to Rule 33 of the Federal Rules of Criminal 
Procedure following the jury’s verdict. 
 
2 Abbott originally argued that four separate trials were necessary but altered his position in 
his reply to the government’s response.  [Record No. 34] 
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II. 
 Rule 33 of the Federal Rules of Criminal Procedure provides that , “[u]pon the 
defendant’s motion, the court may vacate any judgment and grant a new trial if the interest of 
justice so requires.”  The Rule does not define “interest of justice,” but it is widely agreed that 
this standard allows the grant of a new trial where a substantial legal error has occurred.  United 
States v. Munoz, 605 F.3d 359, 373 (6th Cir. 2010).  See also United States v. Wall , 389 F.3d 
457, 474 (5th Cir. 2004) (observing that “any error of sufficient magnitude to require reversal 
on appeal is an adequa te ground for granting a new trial”) (quoting 3 Charles Alan Wright, 
Federal Practice & Procedure § 556 (3d ed. 2004)).  The decision regarding whether to grant 
a new trial rests within the sound discretion of the district court.  United States v. Hoffa , 382 
F.2d 856, 862 (6th Cir. 1967). 
III. 
 Abbott’s initial arguments are similar to those raised in his pretrial motion to sever.  He 
contends that the charges should not have been joined in a single indictment  under Rule 8(a) 
of the Federal Rules of Criminal Procedure.  He goes on to argue that, even if the charges were 
properly joined under Rule 8(a), they should have been severed under Rule 14(a)  due to the 
prejudicial nature of trying the charges together  in single trial.  Having reviewed the parties’ 
briefs and the applicable caselaw, the Court remains unpersuaded by these assertions. 
  
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A. The counts were properly joined under Rule 8(a). 
 Rule 8(a) of the Federal Rules of Criminal Procedure provides that an indictment may 
charge a defendant in separate counts with two or more offenses if the offenses charged “are 
of the same or similar character, or are based on the same act or transaction, or are connected 
with or constitute parts of a common scheme or plan.”   The United States Court of Appeals 
for the Sixth Circuit has held that Rule 8 should be construed in favor of joinder.  United States 
v. Chavis, 296 F.3d 450, 455 (6th Cir. 2002).  See also United States v. Bibby, 752 F.2d 1116, 
1121 (6th Cir. 1985) (observing that “[t]he joinder provisions of Rule 8(a) are more liberal 
than those of 8(b) because they allow inclusion of offenses of the ‘same or similar character’ 
as well as those arising from the same act or transaction or a common scheme”).   
 Counts 1, 2, 4, 6, and 7 are all of a similar nature .  Each alleged that Abbott willfully 
deprived a person of a constitutional right while acting under color of law in violation of 18 
U.S.C. § 242.  With the exception of Count 4, which charged an illegal search of an individual’s 
hotel room, the remaining c ounts alleged the unreasonable use of force during arrest s.  And 
Counts 3 and 5 arose from Abbott’s efforts to cover up the crimes alleged in Counts 2 and 4, 
respectively.  Abbott argues that “ simply having multiple counts charged under the same 
statutory provision is not itself sufficient to qualify the counts as being of the same or similar 
character for joinder purposes ,” but he does not cite any authority from the Sixth Circuit to 
support this proposition. 
 Instead, Abbott continues to rely on the decision in United States v. Jawara , 474 F.3d 
565, 578 (9th Cir. 2007) , which instructs that , in determining whether joinder of counts is 
proper, courts should consider “temporal proximity, physical location, modes of operation, 
identity of the victims, likelihood of evidentiary overlap, and the like, to the extent that they 
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can be gleaned from the indictment.”  But as noted previously, the Sixth Circuit has not adopted 
this position and the Ninth Circuit’s decision in Jawara is not binding on this Court.  But see 
United States v. Weir , 2012 WL 5361045 (E.D. Ky. Oct. 30, 2012) (applying the Jawara 
factors to help determine whether the defendant’s charges for kidnapping and bank robbery 
were the “same or similar”). 
 Regardless, the undersigned observed that several of the Jawara factors support joinder 
of Abbott’s charges.  [Record No. 35, p. 4]  As explained  previously, the incidents occurred 
over a relatively brief  period (four months) and within a relatively small geographical area 
(three adjacent counties).  Given the similarity and temporal proximity of the charges, an 
alleged mode of operation can reasonably be inferred from the charges, as well.  Finally, a 
degree of evidentiary overlap would be expected based on testimony regarding Abbott’s 
training and testimony from the government’s case agent, at the very least.
3 
B. Severance was not required under Rule 14(a). 
 Having concluded that joinder of the charges was proper under Rule 8(a), the Court 
turns to Abbott’s claim regarding relief from prejudicial joinder under Rule 14.  There is a 
strong presumption in favor of joint trials of offenses properly joined under Rule 8(a).  United 
States v. Wilson, 2011 WL 5121098, at *4 (S.D.N.Y. July 11, 2011) (citing United States v. 
Sampson, 385 F.3d 183, 190 (2d Cir. 2004), cert. denied, 544 U.S. 924 (2005)).  However, 
Rule 14(a) of the Federal Rules of Evidence provides that , “[i]f the joinder of offenses . . . in 
an indictment . . . appears to prejudice a defendant or the government, the court may order 
 
3 Abbott contends that the government overstated the extent of overlapping evidence in 
response to his original motion to sever.  But whether joinder is proper under Rule 8(a) is 
determined by the allegations on the face of the indictment.  Chavis, 296 F.3d at 457. 
 
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separate trials of counts, sever  the defendant’s trials, or provide any other relief that justice 
requires.”  The Sixth Circuit has observed that “[a] defendant is prejudiced if the jury would 
be unable to keep the evidence from each offense separate and unable to render a fair and 
impartial verdict on each offense.”  United States v. Smith, 138 F. App’x 775, 781 (6th Cir. 
2005) (citing United States v. Rox, 692 F.2d 454 (6th Cir. 1982)).    
 Abbott argues that, given the difficulty of sorting through the evidence and considering 
certain evidence only for its limited purpose, the jury did not reach a reliable judgment.   He 
further asserts that , by proceeding on all seven counts in one trial, the government was 
permitted to introduce the equivalent of character evidence indicating that Abbott had a 
propensity for violence and for being untruthful.  However, “one inevitable consequence of a 
joint trial is that the jury will be aware of evidence of one crime wh ile considering the 
defendant’s guilt or innocence of another.”  United States v. Foutz, 540 F.2d 733, 736 (4th Cir. 
1976).   
 The Sixth Circuit Pattern Jury Instructions contemplate this likelihood, as I nstruction 
2.01A, which was given in Abbott’s trial, cautions the jury as follows: 
The defendant has been charged with several crimes. The number of charges is 
no evidence of guilt, and this should not influence your decision in any way. It 
is your duty to separately consider the evidence that relates to each charge, and 
to return a separate verdict for each one. For each charge, you must decide 
whether the government has presented proof beyond a reasonable doubt that the 
defendant is guilty of that particular charge. 
  
Your decision on one charge, whether it is guilty or not guilty, should not 
influence your decision on any of the other charges. 
 
 There is a presumption that juries will follow the Court’s instructions and are capable 
of sifting through the evidence and considering each count separately.  See United States v. 
Carver, 470 F.3d 220, 238 (6th Cir. 2006).  Accordingly, a general assertion that the defendant 
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has been prejudiced by the number of charges presented is not sufficient to warrant severance 
for purposes of trial.  Instead, to prevail on a motion to sever charges that are properly joined 
under Rule 8, “the defendant must show compelling, specific, and actual prejudice.”  Thomas 
v. United States, 849 F.3d 669, 675 (6th Cir. 2017).   
 Abbott contends that compelling, specific, and actual prejudice occurred at trial because 
Counts 3 and 5 involved evidence of Abbott’s dishonesty, which was unrelated to Counts 1 
and 7.  He maintains that if the charges had been severed as he requested, this prejudicial (and, 
he contends, irrelevant) evidence would not have been admitted with respect to Counts 1 and 
7.  But as the United States points out, evidence of Abbott’s role in drafting false or misleading 
paperwork was introduced for each  of the charged incidents and, therefore, would have been 
at issue regardless of whether all counts were joined.   
 The government’s argument on this point is well taken.  With respect to Count 1, Abbott 
testified that he struck J.C. in the face after J.C. spat on him and conceded that he did not 
document this use of force.  Likewise, with respect to Count 7, Abbott admitted that he did not 
document the uses of force he employed against  D.N. and C.B . until the sheriff eventually 
asked him to write a report, which he backdated to January 21, 2021.  Astonishingly, Abbott 
testified that he never documented a use of force unless a supervisor  heard about it indirectly 
and came to him after the fact and as ked him to do so.  Accordingly, w hile Abbott may have 
been prejudiced to some degree by the joinder of all charges, he has not shown compelling, 
specific, and actual prejudice. 
C. Abbott has not identified any other legal error that warrants a new trial. 
 Abbott contends that he was further prejudiced by the Court’s exclusion of a recording 
of his call to dispatch during the encounter with D.N. and C.B. on April 20, 2021.  The Court 
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previously excluded the statements on the recording as hearsay and noted, to the extent a 
portion of the recording might constitute a present sense impression, it was unreliable and 
cumulative.  Abbott has not identified any basis to disturb the Court’s prior ruling.4   
 Abbott also contends that the Court erred by provi ding Jury Instruction No. 32, which 
stated: 
With respect to Counts 2, 4, 6, and 7, you have heard testimony that after the 
crimes were supposed to have been committed, the defendant made untrue 
statements. 
 
If you believe that the defendant made untrue statements, then you may consider 
this conduct, along with all the other evidence, in deciding whether the 
government has proved beyond a reasonable doubt that he committed the crimes 
charged.  Providing false statements to others may indicate that the defendant 
thought he was guilty and was trying to avoid punishment.  On the other hand, 
sometimes an innocent person may make untrue statements for some other 
reason.  The defendant has no obligation to prove that he had an innocent reason 
for his conduct. 
 
[Record No. 75, p. 45]  Abbott maintains that th is instruction unduly emphasized the 
government’s version of the case. 
 This instruction is based on Sixth Circuit Pattern Instruction 7.14, which concerns false 
exculpatory statements.  It is well established that a jury may infer consciousness of guilt from 
a defendant’s false exculpatory statements.  See United States v. Tedesco , 103 F.3d 131 (6th 
Cir. 1996) (table) (citing United States v. Jackson , 55 F.3d 1219, 1225 (6th Cir, cert. denied , 
516 U.S. 926 (1995)).  Here, the jury heard evidence of several statements by Abbott that could 
reasonably fall into this category.  These include his statements that W.W. “aggressively 
advanced” toward him prior to his Abbott’s use of force, that B.T. consented to a search of his 
 
4 Abbott’s counsel advised the Court during a sidebar conference that Abbott could be heard 
stating “we’ve got a fighter here or someone fighting or whatever that is to that effect.”  Having 
reviewed the recording in camera, the Court notes that the statements are unintelligible.   
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hotel room, and that D.N. and C.B. were “fighting” him, necessitating his use of force against 
them.  This instruction did not unduly emphasize the government’s version of the case, as the 
jurors were reminded that it was up to decide whether Ab bott actually made the statements, 
whether they were true, and what weight to give them.   
 Finally, Abbott asserts  that the evidence admitted under Rule 404(b) of the Federal 
Rules of Evidence should have been excluded because its probative value was substantially 
outweighed by its prejudicial effect.  The jury heard about text messages from various dates in 
2020 and 2021 in which Abbott made statements to other law enforcement officers concerning 
the use of force against suspects and/or “violating rights.”  The jury also heard that Abbott 
used force against J.C. approximately 10 months prior to the incident charged in Count 1.  
Additionally, the jury heard that Abbott stopped W.W.’s relative a f ew weeks before the 
incident charged in Count 2 and, that after the relative expressed fear of being shot by police, 
Abbott advised him that he would “just beat [his] ass.”  B.T. testified that while Abbott was 
driving him to jail, Abbott  twice accelerated his patrol car to high speeds and then braked 
suddenly, causing the handcuffed B.T. to lurch forward into the bars of the car’s prisoner 
transport compartment.  Finally, the jury heard that B.T. had just made insulting remarks to 
Abbott each time this occurred. 
 The jury was instructed that, if it found that the defendant did these uncharged acts, it 
could consider the evidence only as it related to the government’s claim on Abbott’s 
willfulness, motive, intent, knowledge, absence of mistake, and absence of accident for the 
charged acts of deprivation of rights under of color of law, and for no other purpose.  In his 
motion for a new trial, Abbott simply contends that because the 404(b) evidence is so similar 
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to the charged acts, the likelihood of prejudice  is so great that a curative instruction was 
insufficient to ameliorate the harm.5 
 The Sixth Circuit has observed that, “[w]hen jurors hear that a defendant has on earlier 
occasions committed essentially the same crime as that for which he is on trial, the information 
unquestionably has a powerful and prejudicial impact.”  United States v. Johnson, 27 F.3d 
1186, 1192 (6th Cir. 1994).  However, much of the 404(b) evidence was not substantially 
similar to the charged conduct and consisted of text messages in which Abbott appeared to be 
boasting or joking with fellow  officers regarding uses of force or “violat[ing] rights.”  These 
messages were probative of Abbott’s willfulness with respect to the charged offenses, which 
the government had the burden of proving under 18 U.S.C. § 242.  Although the jury did hear 
that Abbott used force against J.C. and B.T. on uncharged occasions, nothing suggests that the 
limiting jury instruction was not sufficiently curative.  The fact that Abbott was acquitted of 
depriving B.T. of his right to be free from excessive force during arrest suggests that the jury 
was able to follow the Court’s instructions and was not unduly influenced by this evidence.  
IV. 
 Finally, the Court turns to arguments raised for the first time in Abbott’s reply.  While 
issues first raised in a reply brief are generally forfeited, the Court has considered these 
arguments and will explain why they  are without merit.  See United States v. Frazier , —
F.Supp.3d—, 2023 WL 4930187, at *47 (M.D. Tenn. Aug. 2, 2023) (citing Sanborn v. Parker, 
629 F.3d 554, 579 (6th .Cir. 2010)).   
 
5 Abbott does not dispute that the Court followed the proper three -step procedure for 
admitting evidence under Rule 404(b).  He merely contends that the Court erred with respect to 
the third step, which asks whether the evidence is substantially more prejudicial than probative.  
See United States v. Carter, 779 F.3d 623 (6th Cir. 2015). 
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A. The jury’s verdict was not against the manifest weight of the evidence. 
 Abbott contends that the jury’s verdict was against the manifest weight of the 
evidence.6  A motion for a new trial on this basis calls on the Court to take on the role of a 
thirteenth juror, weighing evidence and making credibility determinations to make sure there 
is not a miscarriage of justice.  United States v. Mallory , 902 F.3d 584, 596 (6th Cir. 2018).  
Unlike a motion under Rule 29 of the Federal Rules of C riminal Procedure, Rule 33 does not 
require the Court to view the evidence in a light most favorable to the prosecution.  Id. (citing 
United States v. Hughes, 505 F.3d 578, 592 (6th Cir. 2007)). 
 In this case, the undersigned concludes that t he jury’s findings are  supported by the 
weight of the evidence  and reflect sound credibility assessments .  With respect to Count 1, 
Abbott testified that he struck a handcuffed J.C. in the face because J.C. spat at him.  Officer 
John Gibson testified that he was present during this incident and that he witnessed Abbott 
administer a “closed physical strike” to J.C.’s left cheek  while J.C. was handcuffed and was 
not resisting arrest.  Gibson testified that he did not see J.C. spit at Abbott or make any sounds 
or movements consistent with spitting.   Gi bson testified that he was shocked by Abbott’s 
conduct and that it was inconsistent with his training to strike a suspect who is handcuffed and 
compliant. 
 J.C. testified that Abbott “sucker punched” him in the left side of his face while he was 
handcuffed and complying with Abbott’s commands.  J.C. denied spitting on Abbott, resisting 
arrest, or making any other aggressive movements.  The jury saw J.C.’s mugshot that was 
 
6 Abbott made a passing reference to this in his initial brief, but did not attempt to flesh out 
the argument in any way.   [Record No. 83-1, p. 6]   
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taken that day, which showed a bruise beneath J.C.’s left eye.  Abbott conceded that he did not 
document the alleged spitting or his use of force on J.C. 
 Even if the jury believed Abbott’s version of events  (which was not required ), it 
reasonably could have concluded that Abbott acted willfully in using unreasonabl y excessive 
force in the course of arresting J.C., which resulted in bodily injury to J.C. 
 The jury’s verdict regarding Count 2 concerning W.W.’s arrest also is supported by the 
evidence.  Abbott and his partner, Officer Braydon Hopper, were present during this traffic 
stop.  Abbott, Hopper, and W.W. largely agree concerning the facts leading up to Abbott’s use 
of force.  Abbott recorded the events on his cell phone, which also corroborated the events and 
was introduced at trial. 
 Abbott and Hopper worked together to initiate a traffic stop based on a narcotics 
investigation involving W.W.  After Abbott’s narcotics detection dog positively alerted on the 
vehicle, Abbott patted down W.W. and discovered what he believed to be a methamphetamine 
pipe in W.W.’s pocket.  Abbott quickly handcuffed W.W.’s left wrist , but W.W. failed to 
comply with Abbott’s command to place his right hand behind his back.  W.W., who was 
standing up facing his vehicle, turned slightly to the right to “talk” to Abbott.  The cell phone 
video did not capture what happened next, but it is undisputed that Abbott punched W.W. in 
the face.   
 Abbott testified that the use of force  was necessary because W.W. refused to comply 
with his command  to place his right hand behind hi s back.  Hopper testified that although 
W.W. was being “mouthy,” he did not make any aggressive movements toward Abbott .  
Hopper believed that less forceful means of gaining compliance, such as placing the defendant 
against a hard surface and using pressure points, would have been appropriate.   
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 Whether the particular use of force was reasonable was a question for the jury.  Hopper 
testified that it was inconsistent with his training to punch a defendant who simply was not 
giving one of his  hands to be pla ced in handcuffs.  Here, based on the cell phone video and 
testimony, the jury reasonably determined that the force was excessive given the apparent lack 
of aggressive action on the part of W.W.  The jury also reasonably concluded that the use of 
force resulted in bodily harm to W.W., based on the excessive nature of the force and W.W.’s 
testimony that he suffered a busted lip. 
 The jury’s verdict with respect to Count 3 also is supported by substantial evidence.  
This count charged Abbott with  conspiring with another person to falsify a document in a 
federal investigation.  Hopper testified that he completed an arrest citation for W.W. based on 
the traffic stop described in Count 2.  Hopper charged W.W. with various offenses, including 
resisting arrest and disorderly conduct.  Hopper testified that these charges were not supported 
by what he actually observed during the traffic stop, but  he had charged them because he 
“wanted to make [Abbott] look good and [he] didn’t want him to get in trouble.”   Most 
importantly, Hopper documented that W.W. “made an aggressive advancement towards 
Deputy Abbott in which Deputy Abbott used a hard empty hand technique and taken to the 
ground to gain compliance.”  Hopper testified that W.W. did not actually make an aggressive 
advancement and that he included the statement in his citation because Tanner told him to do 
so.  Hopper admitted that he initially did not tell the FBI that the report was false and stated 
that he could not remember why he failed to disclose that fact.  Regardless, the jury reasonably 
believed Hopper’s testimony, particularly in light of the cell phone video which did not show 
any aggressive advancement by W.W. 
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 There was ample evidence to support the jury’s verdict with respect to Count 4, which 
charged that Abbott illegally searched the hotel room lawfully occupied by B.T.  Significant 
evidence presented at trial contradicted Abbott’s testimony that B.T. gave consent to search 
his hotel room. 
 Hopper testified that when he and Abbott arrived at the hotel  where B.T. was staying  
on March 31, 2021, they knocked on the door of B.T.’s room and no one answered.  Abbott 
then retrieved a key from the front desk.  This testimony was supported by that of Dave Patel, 
the owner of the hotel, who testified that Abbott came to the front desk on that date and advised 
that he had a warrant to search B.T.’s hotel room.  Patel testified that, consistent with his 
practice of cooperating with law enforcement, he gave Abbott a key to B.T.’s room.   
 Hopper testified that Abbott attempted to open the door by unlocking it, but the door 
was latched from the inside.  At that point, B.T. came out into the hallway and Abbott and B.T. 
began “exchanging words.”  According to the testimony of B.T. and Hopper , Abbott then 
barged into the room and began rifling through B.T.’s belongings.  
 This testimony is contradicted by that of Abbott, who maintains that B.T. gave him 
permission to search his room in exchange for “another chance” to avoid going to jail on the 
condition that nothing illegal was found in the room.  The jury easily  could have disbelieved 
Abbott’s testimony in light of B.T., Hopper, and Patel’s conflicting testimony and the fact that 
marijuana and methamphetamine were found in the room. 
 Based on Abbott’s conviction with respect to Count 4, the jury reasonably found him 
guilty of Count 5, which charged him falsely documenting that B.T. consented to the search 
of his hotel room.   
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 Finally, the jury’s verdict regarding Count 7 is supported by substantial  evidence.  
Abbott initiated a traffic stop of C.B. and D.N. on January 20, 2021, after he observed D.N. 
driving erratically .  Abbott testified that, when he approached the vehicle, C.B. and D.N. 
appeared to be under  the influence.  Abbott maintains that he asked D.N. to step out of the 
vehicle to take a field sobriety test.  However, according to Abbott, D.N. refused to take the 
test and stated that he was not going to jail.  D.N. then turned away from Abbott and resisted 
Abbott’s attempts to place him under arrest.  Abbott testified that he took D.N. to the ground 
and was able to place him in handcuffs. 
 Abbott stated that C.B. got out of the vehicle and charged toward him, despite Abbott’s 
commands to stop.  Abbott began to place C.B. under arrest for public intoxication, but C.B. 
would not comply.  Accordingly, Abbott contends that he used a soft empty hand technique to 
take him to the ground and pl ace him in handcuffs.  After the fact, Abbott noticed that C.B. 
had a scratch on his eye and that his glasses were broken. 
 After securing C.B., Abbott returned to check on D.N.  According to Abbott, D.N. was 
acting “manifestly under the influence” and was  getting near the roadway.  Abbott walked 
D.N. away from traffic and attempted to sit D.N. down on his bottom.  However, D.N. leaned 
back and began “kicking as hard as he could.”  Abbott notified dispatch that he had a suspect 
who was fighting and needed backup.  Abbott testified that D.N. continued to fight, so Abbott 
struck him one time in the head with a closed empty hand to gain compliance.  Abbott then 
called EMS because he believed he might have knocked D.N. unconscious. 
 C.B. and D.N. both testified at trial—their version of events differs significantly from 
Abbott’s testimony.  C.B., who was 18- years-old at the time  of the incident, testified that he 
had vaped THC about 30 minutes prior to the traffic stop; 20-year-old D.N. had not consumed 
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any intoxicants.  Both witnesses testified that Abbott approached their vehicle and immediately 
accused D.N. of being drunk.  D.N. denied this accusation and he and Abbott began “arguing 
back and forth.”  D.N. asked Abbott to call a supervisor, which C.B. and D.N. believed made 
Abbott angry.  According to C.B. and D.N., Abbott hit D.N. in the face, pulled him out of the 
car, and threw him to the ground, where Abbott continued hitting him.   
 C.B. testified that he got out of the car and walked around to the front driver’s side area 
and yelled for Abbott to stop.  Abbott directed C.B. to step back.  C.B. stated that he stepped 
back “a little,” after which Abbott elbowed C.B. in the eye, breaking his glasses. 
 While the Court acts as a thirteenth juror in considering motions under Rule 33, it does 
so to ensure that no miscarriage of justice occurs.  Hughes , 505 F.3d at 592.  No miscarriage 
of justice has occurred here because the evidence supports Abbott’s conviction with respect to 
Count 7.   C.B. and D.N. were credible witnesses.  If the jury accepted C.B. and D.N.’s 
testimony as true, it was not unreasonable in doing so.  But even if the jury believed Abbott’s 
testimony that D.N. was kicking him, it reasonably could have concluded that Abbott’s use of 
force was improper and excessive.   
 D.N.’s injuries were severe.  Emergency room records from the night of the incident 
reveal that he sustained left-sided nasal bone fractures and a fracture of the frontal process of 
the left maxilla.  The jury heard the testimony of Detective David Lewis, of the Nicholasville, 
Kentucky Police Department who was one o f the backup officers that responded to the scene  
after the use of force occurred.  Lewis’s initial impression based on D.N.’s behavior that night 
was that D.N. was “on something.”  However, Lewis subsequently came to believe that D.N.’s 
appearance and beh avior was more consistent with a head injury than with alcohol or drug 
intoxication.   
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 Detective Lewis was wearing a body camera that captured some of Abbott’s conduct 
following the use of force, which further supports the jury’s verdict.  Abbott is seen repeatedly 
laughing and showing his hand to other officers.  Additionally, he sent multiple text messages 
just hours after the incident stating, for example, “[j]ust broke my hand and someone’s face 
lol” and “3 facial fractures with one punch lol.”  While Abbott explained that these comments 
and messages were his way of dealing a difficult situation, the jury reasonably could have 
concluded that they were evidence of his willful use of unreasonably excessive force in making 
an arrest.   
B. The government did not engage in misconduct. 
 Abbott also contends for the first time in his reply that the government improperly 
opined on his character and misrepresented facts in “several instances.”  He further asserts that 
the prosecution “was able to get away with making statements that cross the line of what is 
appropriate for a prosecutor.”  Abbott contends the Assistant United States Attorney made the 
following “false statements” during closing arguments: 
He took his own video of that arrest [W.W.] but he never submitted it in 
evidence, he never told anyone it existed because it didn’t support that false 
story that he fed to Deputy Hopper. 
 
You know he knew it because he told Deputy Hopper to cover it up. 
 
That video [W.W. arrest video] was unquestionably evidence but the defendant 
never made anyone aware it existed. 
 
 Abbott contends that these statements are false because the W.W. arrest video “clearly 
and unequivocally showed the Defendant telling the officers on scene that he was recording 
the arrest, thus he made several people aware that the video existed.”  Abbott further contends 
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that “there was no testimony to support that the Defendant told Deputy Hopper ‘to cover it 
up.’”  [Record No. 83, p. 3] 
 The defendant takes the prosecutor’s  statements regarding the cell phone video too 
literally.  It was clear from the context of the statement that the “anyone” the prosecutor was 
referring to was a supervisor who would be responsible for reviewing Abbott’s  use of force.  
As Abbott points out, clearly  other officers on the scene knew that Abbott was recording the 
video.  Accordingly, Abbott was not prejudiced by t hese statements made during closing 
arguments. 
 Likewise, the prosecutor did not misrepresent the evidence by stating that Abbott told 
Hopper “to cover it up.”  Hopper testified that he was on the phone with Abbott when he 
authored the report concerning W.W.’s arrest and that he wrote that W.W. aggressi vely 
advanced toward Abbott because Abbott told him to.  This constitutes “covering up” the fact 
that there was not a sufficient basis for the force Abbott used.  The prosecutor is allowed to 
interpret and summarize the evidence during closing arguments. 
 Abbott also contends that the government misrepresented to the jury the testimony of 
its own witness, Cameron Gastineau, who the government asserted witnessed Abbott’s arrest 
of D.N. and C.B. from a Wendy’s parking lot near the scene of the incident.  Gastineau testified 
that he witnessed a traffic stop in which an officer pulled an individual out  of a vehicle and 
slammed him up against it, before taking the individual to the ground.  However, when pressed 
on the details, Gastineau recalled the traffic stop  being in a different location than where the 
incident with D.N. and C.B. actually occurred.  Further, when defen se counsel showed him a 
photograph of D.N.’s vehicle, Gastineau testified that was not the vehicle he saw that night.   
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 These inconsistencies in Gastineau’s testimony are not conclusive evidence that he did 
not actually witness the event, which had occurred years prior to the trial.  The government’s 
statements in its closing argument were not misleading .  The jury reasonably co uld have 
concluded that Gastineau simply was confused in his recollection of events and was not asked 
to make a decision based on Gastineau’s testimony alone.     
 Finally, Abbott contends that the following statements made by the Assistant United 
States Attorney during closing arguments “improperly reflect the United States’ opinion” on 
Abbott’s credibility: 
He placed his bets that his own false stories would be enough to protect him.  
Same bet he placed when he took the stand and lied to all of you and to ld you 
to believe things that aren’t supported by the evidence and just don’t make sense. 
 
And ladies and gentlemen—and I’ll include the convicted felons in this, he was 
the least credible witness in this trial.  He got caught lying, and lying, and lying. 
 
His self-serving testimony wasn’t credible.  When you go back to deliberate, 
you should disregard it entirely. 
 
 Notably, the defendant did not provide any authority in support of the proposition that 
these statements by the prosecutor were improper.  Imp roper vouching occurs when the 
prosecutor implies, either intentionally or inadvertently, that he is in a special position to 
ascertain whether the witness was or was not testifying truthfully.  United States v. Francis , 
170 F.3d 546, 550 (6th Cir. 1999).  And a prosecutor may not call the defendant “a liar” without 
reference to the evidence introduced at trial.  United States v. Joiner , 727 F. App’x 821, 826 
(6th Cir. 2018) (citing Francis , 170 F.3d at 551- 52).  But when  a defendant testifies, a 
prosecutor may attack his credibility just like  that of any other witness.  See United States v. 
Acosta, 924 F.3d 288, 299 (6th Cir. 2019).   
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 The Sixth Circuit has repeatedly recognized that a prosecutor may argue during his 
closing argument that a defendant is lying by pointing out inconsistencies in the defendant’s 
testimony and other evidence.  West v. Bell , 550 F.3d 542, 565 (6th Cir. 2008); United States 
v. Francis , 170 F.3d 546, 551 (6th Cir. 1999).  The government did not attack Abbott’s 
credibility based on the prosecutor’s personal belief nor did the prosecutor suggest that 
Abbott’s credibility was poor based on any information other than that presented at trial .  
Instead, the prosecutor’s references to Abbott’s credibility were tied to the evidence presented 
at trial, including proof indicating that Abbott falsified paperwork on multiple occasions, lied 
to Dave Patel about having a warrant to search B.T.’s hotel room, and strategically kept certain 
conduct from being recorded.  Accordingly, the government’s statements regarding Abbott’s 
credibility during its closing argument were not improper. 
V. 
 As explained above, the defendant has not established that a substantial legal error has 
occurred, and the interests of justice do not warrant granting a new trial.  Accordingly, it is 
hereby 
 ORDERED that the defendant’s motion for a new trial [Record No. 83] is DENIED. 
 Dated: April 17, 2024. 
 
 
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