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BETTY JONES, Plaintiff-Appellant, v. WILLIE WILLIAMS; CITY OF LOS ANGELES; MICHAEL AKANA; GRADY DUBLIN; RICHARD LUDWIG; CHESTER MCMILLION; EDWARD ORTIZ; WILSON WONG; ALFONSO REYES; RICHARD A. BROWN; RICHARD GINELLI; GARY CLARKE; ROBERT HOLCOMB; DAVID NILA; RICHARD SELLEH; MARK KROECKER; MICHAELHILLMAN; MICHAEL DOWNING, individually and in their official capacities, Defendants-Appellees, and DARYL GATES; ARTHUR DAEDELOW; MARTINA VILLALOBOS, Defendants.
No. 00-56929
UNITED STATES COURT OF
APPEALS FOR THE NINTH CIRCUIT
41 Fed. Appx. 964; 2002 U.S.
App. Lexis 15345
February 5, 2002, Argued and
Submitted, Pasadena, California
This court's memorandum disposition filed on April 18, 2002, is
withdrawn and replaced by the memorandum disposition filed concurrently with
this order. The petition for rehearing and the petition for rehearing en banc
are denied in a separate order.
MEMORANDUM *
* This disposition is not
appropriate for publication and may not be cited to or by the courts of this
circuit except as may be provided by Ninth Circuit Rule 36-3.
Argued and Submitted February 5, 2002
Pasadena, California
Before: O'SCANNLAIN and SILVERMAN, Circuit Judges, and REED, ** District
Judge
** The Honorable Edward C. Reed, Jr., Senior United States
District Judge for the District of Nevada, sitting by designation.
Betty Jones ("Jones")
appeals the jury verdict for the defendant police officers on her 42 U.S.C. §
1983 claim that the officers violated her Fourth and Fourteenth Amendment
rights when they conducted an unreasonable search of her house. We have dealt
with the issue of jury instructions in a separate published opinion. This
memorandum disposition addresses Jones's issue of alleged attorney misconduct
of defense counsel Paul Paquette ("Paquette"). It also addresses
Jones's claim of a preserved issue based on Monell v. Department of Social
Services, 436 U.S. 658, 56 L. Ed. 2d 611, 98 S. Ct. 2018 (1978).
"We review only issues which are argued specifically and distinctly
in a party's opening brief." Greenwood v. Fed. Aviation Admin., 28 F.3d
971, 977 (9th Cir. 1994) (citing Miller v. Fairchild Indus., Inc., 797 F.2d
727, 738 (9th Cir. 1986)). The
extent of Jones's reference to her Monell claim was one sentence in her
conclusion that asked us to "preserve plaintiff's Monell claims, which she
expressly preserves." This does not constitute specific and distinct
argument. It is simply "a bare assertion [which] does not preserve a
claim." Greenwood, 28 F.3d at 977. Jones's Monell claim was waived for
failure to argue it in her opening brief.
The
defendants argue that Jones waived her attorney misconduct argument when she
failed to move for a mistrial before the district court. We disagree. Failure
to move for a mistrial is a factor in assessing prejudice, but does not
completely bar our review. Bird v.
Glacier Elec. Coop., Inc., 255 F.3d 1136, 1145 (9th Cir. 2001). In addition,
Jones's attorney objected to each of the alleged instances of misconduct, thus
preserving them for appellate review.
Reversal on the grounds of
attorney misconduct is rare, and is granted only when the misconduct permeates
an entire proceeding such that "the jury was necessarily influenced by
passion and prejudice in reaching its verdict." Cooper v. Firestone
Tire & Rubber Co., 945 F.2d 1103, 1107 (9th Cir. 1991). To permeate the
trial the misconduct does not have to occur throughout the whole trial, but the
jury must have been "necessarily prejudiced." Bird, 255 F.3d at 1145
& n. 16. When the district court gives curative instructions there is a
strong presumption that the jury follows those instructions. Doe v. Glanzer, 232 F.3d 1258, 1270 (9th
Cir. 2000). Jones identifies nine episodes that she argues are misconduct that
support reversal.
1. Paquette's attempt to rehabilitate Michael
Akana with interrogatories.
Jones argues that Paquette's attempt to let the jury know that Michael
Akana ("Akana") had not actually prepared the responses to the
interrogatories demonstrates misconduct. We disagree. All of the objections by
Jones's attorney were sustained by the court. When an objection by an attorney
is sustained before [*967] the witness answers the question, there is no
prejudice. United States v. Sarkisian, 197 F.3d 966, 989 (9th Cir. 1999).
Further, the judge explained the law of interrogatories to the jury so that the
jury knew that Akana was responsible for his answers even if he did not prepare
the responses to the interrogatories.
Jones also argues that Paquette's behavior at a later point in the
examination demonstrates misconduct. Jones's attorney was reading into the
record an answer from an interrogatory, and read it three separate times.
Paquette objected to this as repetitious.The court overruled his objection and
stated that a statement of a party opponent could be read into the record.
Paquette asked, "For the third time?" at which point the judge
responded: "Counsel, I'm the judge, I make rulings. You can disagree if
you want to. I'd ask you not to do that in the presence of the jury." This
was not misconduct because the objection was overruled and Jones's attorney was
allowed to introduce her evidence.
2. Paquette's mention of the FBI in his
direct examination.
Jones argues that Paquette's mention of the FBI in his examination of
Michael Hillman violated an in limine ruling of the court that counsel
"not go into such matters." From this statement it is impossible to
determine what in limine order Jones alleges Paquette violated, and the record
does not indicate that discussing the FBI was off limits. In any case, this
questioning was not attorney misconduct because the objection was
sustained. Sarkisian, 197 F.3d at 989.
3. Paquette's introduction of the
"threat category red" phrase.
Jones argues that Paquette's questioning of Richard Ludwig
("Ludwig") about the phrase "threat category red" was
misconduct, because it was an attempt to: (1) violate the court's in limine
ruling about the investigation that lead to the search warrant; and (2)
introduce inadmissible evidence about the "dangerous" occupants of
the house.
Paquette asked Ludwig what "threat category red" meant to him
when he saw it. Paquette was trying to use a document containing this phrase to
establish what Ludwig and the other officers did as a result of reading the
document. This presents no hearsay problem and, contrary to the assertion by
Jones's attorney, does relate to the issue of whether the search was
reasonable. Therefore, allowing this line of questioning was legally
permissible and could not be a ground for reversal on the basis of attorney
misconduct.
4. Paquette's questioning of Ludwig about his
breaking the window and entering the house.
Paquette continued his questioning of Ludwig by asking him about
breaking a window to enter Jones's house. Paquette attempted to elicit from
Ludwig the reasons why he broke the window. Jones's attorney timely objected to
these questions, and the judge sustained the objections. Sarkisian, 197 F.3d at 989. No inadmissible
evidence was admitted, and nothing Paquette did could have influenced the jury
to make a decision based on passion or prejudice. This episode is not
misconduct.
5. Paquette's questioning about the
Employee's Report Form.
Jones's attorney argues that Paquette's subsequent attempt to question
Ludwig about the Employee's Report [*968] Form and Paquette's comment to the
judge constitutes misconduct. Paquette began by asking Ludwig general
questions about the document, but when
it became clear that some of the questions were designed to elicit the contents
of the document Jones's attorney objected, and the judge sustained the objections.
After repeated attempts to phrase his questions differently, Paquette moved on.
As soon as he began to move on, Jones's attorney objected, and the judge
sustained the objection. The focus of the objection is not clear, and Paquette
stated that he thought the objection had already been sustained. The judge
indicated that it was her belief that Jones's attorney was attempting to
explain his objection, to which Paquette responded, "It's sustained."
Rudeness to a judge is unacceptable behavior, but it does not constitute
misconduct that warrants a new trial. It is more likely that a jury would view
Paquette in a negative light after his examination of Ludwig because of his
arrogance in court and his repeated questions that elicited constant objections.
6. Paquette's questioning about a cloned cell
phone.
Paquette asked Gary Clark about the two people taken from Jones's house
into custody after the raid. Jones's attorney objected to this questioning, and
all the objections were sustained. This is not misconduct. Sarkisian, 197 F.3d
at 989.
7. Paquette's questioning of LeRoy Bowling.
Jones claims that on four occasions Paquette's questioning of LeRoy
Bowling, Jones's son, rose to the level of misconduct: (1) Paquette asked about
Bowling's felony convictions before the Court had specifically ruled on their
admissibility; (2) Paquette asked Bowling how many times he had been arrested;
(3) Paquette asked if Bowling was a member of a gang, the 8 Trey Gangster
Crips; and (4) Paquette asked Bowling about his possession of ammunition and
guns.
Although the first statement by Paquette violated an in limine order
this episode does not appear to be misconduct that would have necessarily made
the jury's verdict based on passion and prejudice. It was an isolated and
rather vague statement, to which there was a strenuous objection that was
sustained.
As
to the other questions, Jones's attorney repeatedly objected to the questions,
and the judge sustained the objections. Bowling never answered any of the
questions. None of these three questions could be considered misconduct. Sarkisian,
197 F.3d at 989.
8. Paquette's statements about the
"Rampart Scandal."
In
his closing argument Paquette mentioned Rafael Perez and the Rampart Scandal.
Jones's attorney objected.
This episode does not appear to be misconduct to warrant reversal. The
doctrine of "opening the door" or curative admissibility allows for
subsequent questioning about inadmissible evidence raised by the opposing
party. United States v. Hegwood, 977
F.2d 492, 496 (9th Cir. 1992). It appears that Jones's attorney mentioned
Rampart by name prior to the closing argument, and also referred to corruption
in the LAPD stemming from Rampart without actually using the catch phrase. This
would appear to allow Paquette to refer to Rampart. Paquette's attempted [*969] question about Rampart, and his
mention of it in the closing argument is not misconduct.
9. Paquette's closing argument.
Jones argues that Paquette
committed misconduct in his closing argument by giving inferences to the jury
about items not in evidence. In her instructions to the jury the judge stated
that arguments and statements by lawyers were not evidence, and we presume that
the jury followed those instructions. Doe,
232 F.3d at 1270.
None of these actions by
Paquette is commendable, and some of them may constitute overzealous advocacy.
Nevertheless, it does not appear that Paquette's actions or statements pervaded
the entire trial such that the jury would necessarily have reached its verdict
based on passion and prejudice. In many cases it appears that Paquette's
statements actually served only to harm his position. In all instances, Judge
Marshall sustained the proper objections of Jones's attorney and often
explained the correct law to the jury or gave them specific instructions about
disregarding the testimony.
AFFIRMED.