Estate of Feras Morad v. City of Long Beach ( 2020 )

FILED
NOT FOR PUBLICATION
MAR 20 2020
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
ESTATE OF FERAS MORAD; AMAL No. 18-56586
ALKABRA; AMR MORAD,
D.C. No.
Plaintiffs-Appellants, 2:16-cv-06785-MWF-AJW
v.
MEMORANDUM*
CITY OF LONG BEACH; ROBERT
LUNA, Chief of Police for the LBPD,
official capacity; MATTHEW
HERNANDEZ, employee of the LBPD,
Defendants-Appellees.
Appeal from the United States District Court
for the Central District of California
Michael W. Fitzgerald, District Judge, Presiding
Argued and Submitted February 14, 2020
Pasadena, California
Before: BYBEE and COLLINS, Circuit Judges, and MOSKOWITZ,** District
Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Barry Ted Moskowitz, United States District Judge for
the Southern District of California, sitting by designation.
Plaintiffs-Appellants Estate of Feras Morad, Amal Alkabra, and Amr Morad
appeal following a jury trial in their civil case against the City of Long Beach;
Robert Luna, Chief of Police of the Long Beach Police Department (LBPD); and
Officer Matthew Hernandez. Because the parties are familiar with the facts, we
will not recite them here except where necessary. We affirm.
Evidentiary rulings are reviewed for abuse of discretion, see Geurin v.
Winston Indus., Inc., 316 F.3d 879, 882 (9th Cir. 2002), as is a denial of a new-trial
motion, see Landes Constr. Co. v. Royal Bank of Can., 833 F.2d 1365, 1372 (9th
Cir. 1987). A court abuses its discretion if it either fails to apply the correct rule or
applies that rule in a way that is “illogical,” “implausible,” or “without support in
inferences that may be drawn from the facts in the record.” United States v.
Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc) (internal quotation marks
omitted). Further, to reverse on the basis of an erroneous evidentiary ruling, we
must conclude not only that the district court abused its discretion, but also that the
error was prejudicial. See Geurin, 316 F.3d at 882.
Grants of summary judgment are reviewed de novo. See Animal Legal Def.
Fund v. U.S. FDA, 836 F.3d 987, 988 (9th Cir. 2016) (en banc) (per curiam).
1. The district court did not abuse its discretion when it denied Plaintiffs’
motion for a new trial after the jury was exposed to extraneous evidence. “A
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defendant is entitled to a new trial when the jury obtains or uses evidence that has
not been introduced during trial if there is a reasonable possibility that the extrinsic
material could have affected the verdict.” Dickson v. Sullivan, 849 F.2d 403, 405
(9th Cir. 1988) (emphasis omitted) (internal quotation marks omitted). We have
articulated a non-exhaustive list of factors for district courts to consider in making
this determination, which includes “(1) whether the material was actually received,
and if so how; (2) the length of time it was available to the jury; (3) the extent to
which the [jury] discussed and considered it; (4) whether the material was
introduced before a verdict was reached, and if so at what point in the
deliberations,” Marino v. Vasquez, 812 F.2d 499, 506 (9th Cir. 1987), “[5] whether
the prejudicial statement was ambiguously phrased; [6] whether the extraneous
information was otherwise admissible or merely cumulative of other evidence
adduced at trial; [7] whether a curative instruction was given or some other step
taken to ameliorate the prejudice; [8] the trial context; and [9] whether the
statement was insufficiently prejudicial given the issues and evidence in the case,”
Jeffries v. Wood, 114 F.3d 1484, 1491–92 (9th Cir. 1997) (en banc) (internal
footnotes omitted), abrogated on other grounds by Gonzalez v. Arizona, 677 F.3d
383 (9th Cir. 2012). Here, the district court found that the inadmissible recordings
that were mistakenly given to the jury could not have affected the jury’s verdict.
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The district court focused its analysis on three of the above-cited factors: (1) the
inadmissible recordings were cumulative and “added nothing that the jury did not
already know,” (2) the curative instruction given to the jury was sufficient to
correct any possible prejudice, and (3) “[b]oth sides were at fault” for the error in
sending a disk containing the inadmissible recording to the jury.1 Though some of
the other Marino and Jeffries factors do support a finding that the recordings could
have affected the verdict, the factors relied upon by the district court weigh more
heavily in the opposite direction, and the district court did not abuse its discretion
in denying the motion for a new trial.
2. The district court did not abuse its discretion when it excluded the majority
of juror Robert Shudic’s declaration under Federal Rule of Evidence 606(b). Rule
606(b) prohibits jurors from testifying about their deliberations with limited
exception. Fed. R. Evid. 606(b). One exceptions is that “[a] juror may testify
about whether . . . extraneous prejudicial information was improperly brought to
the jury’s attention.” Fed. R. Evid. 606(b)(2)(A). However, this exception does
1
This mistake was not discovered during trial because when entering the
recordings into evidence, Defendants played them from a computer and not from
the CD placed into evidence as Exhibit 363. We note that it is a best practice for
parties to play the actual exhibit during trial and not a secondary copy of the
exhibit. Had Defendants played Exhibit 363—either as their own best practice, or
because it was required by the district court or insisted upon by Plaintiffs—the
mistake would have been discovered before the exhibit was given to the jury.
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not allow a court to “investigate the subjective effects of any [extrinsic evidence]
upon the jurors. Rather, the trial court’s factual inquiry is limited to determining
the extent, if at all, to which the jurors saw or discussed the extrinsic evidence.”
Dickson, 849 F.2d at 406 (alteration in original) (citations and internal quotation
marks omitted). Here, the trial court admitted those portions of the affidavit that
“provide[d] that the jury listened to the” inadmissible recordings, but excluded the
rest because “it goes to the subjective effect of” those recordings on the jury.
Although admitting Shudic’s statements about how many times the jury heard the
inadmissible recordings or how closely they listened might have been within Rule
606(b), any error was not prejudicial because the district court properly concluded
that the inadmissible recordings “added nothing that the jury did not already
know.”
3. The district court did not abuse its discretion when it denied Plaintiffs’
motion for a new trial on the ground that the verdict was against the clear weight of
the evidence. A denial of a new-trial motion may be reversed if the trial court
“weighs the evidence explicitly against the wrong standard, i.e., substantial
evidence or preponderance of the evidence.” Landes, 833 F.2d at 1372. Plaintiffs
argue that the district court erred because it held that the jury’s verdict was “not
contrary to the weight of the evidence,” as opposed to the clear weight. However,
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we do not find that in omitting the word “clear,” the district court “weigh[ed] the
evidence explicitly against the wrong standard,” especially given that the court
correctly articulated the new-trial standard elsewhere in its decision. Landes, 833
F.2d at 1372. We have examined the record and agree with the district court that
the verdict was not against the clear weight of the evidence.
4. The district court did not err when it granted summary judgment to the City
of Long Beach and Chief Luna. A municipality may only be liable for the
constitutional violations of its employees in “carefully circumscribed”
circumstances, including when an official policymaker ratifies the employee’s
unconstitutional acts, Fuller v. City of Oakland, 47 F.3d 1522, 1534 (9th Cir.
1995), or when it makes the “deliberate” or “conscious” choice not to properly
train those employees, City of Canton v. Harris, 489 U.S. 378, 389 (1989). Here,
there was neither ratification nor an actionable failure to train. Chief Luna did not
ratify Officer Hernandez’s actions: he decided not to discipline him only after an
investigation into Morad’s shooting, and implemented several remedial measures
to prevent shootings like this one from occurring in the future. And though there
were some gaps in the LBPD’s training program, the asserted deficiencies
identified by Plaintiffs are insufficient to support a finding that the LBPD made a
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“deliberate” or “conscious” choice not to properly train its employees. See Harris,
489 U.S. at 389.
5. Plaintiffs appeal several evidentiary rulings made by the district court during
trial. None of these evidentiary rulings were an abuse of discretion. The court did
not violate Federal Rule of Evidence 403 when it admitted the eyewitness video
into evidence; even if the probative value of the video is limited, Plaintiffs have not
shown that “its probative value is substantially outweighed by a danger of . . .
unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting
time, or needlessly presenting cumulative evidence.” Fed. R. Evid. 403. For this
same reason, the court did not violate Rule 403 when it allowed Officer Hernandez
to testify that he could hear Morad making threatening statements on the video.
See id. Moreover, even if these rulings were abuses of discretion, Plaintiffs have
not shown why any of them were prejudicial. See Geurin, 316 F.3d at 882.
Finally, even if the court may have erred in allowing Hernandez to testify that he
had written in his police report that he heard Morad say “I’m coming to get you,”
we agree with the district judge that this testimony was not prejudicial.
AFFIRMED.
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