exposure to the nine hundred and eleven call that the district court excluded before trial is unduly prejudicial unless the court has questions we would submit on the motion for summary judgment and the other issues raised in our briefs the district court abused his discretion in excluding the entire juror declaration from mr shute except for the limited purpose of establishing that yes the jury did listen to the nine hundred and eleven call but this court's extraneous audio about half a dozen times some parts of the audio we played more than that we were trying to pick out every word and this establishes the jury did not simply listen to the nine hundred and eleven call the jury fixated on the nine  eleven call jerde testimony is also admissible to establish that the jury discussed the information and the context in which those discussions occurred insist soon in this court held admissible juror testimony that extraneous information was discussed in the context of the criminal defendants motive the court this court found that prejudicial in order to a new trial so to hear mr shubrick states we listen to those calls a lot and discuss them we talked about it referring to the nine eleven dollars call in the jury room we talked about the call the video clip and whether or not the young man was violent and this shows us that the jury connected the in prejudicial nine hundred and eleven call to the central disputed fact in this case which is whether ferocity morag was so violent and out of control that though an armed officer hernandez use of deadly force was that the jury was not following the court's instructions although that's also clear without mr shute excessive noise and there are two examples of that the st is at the close of evidence the district court gave instruction number the jury did not notify the court immediately instead they listened to the entire recording half a dozen times that's close to an hour of audio the recording is that in the half minutes long and even when the jury did notify the court it didn't tell the court that they somebody who is screaming out raising erotic is the type of person more likely to attack an officer but the other problem this creates for the plaintiff case is that if the jury credited the nine hundred and eleven call and we know that they did this impeach is three of planes  i mean why wouldn't why couldn't the jury just just say ok well that's that's interesting he was screaming at one time but by the time the the the the fire department wasn't on the scene when the guy came out of the window so the fact that he was screaming and fell out of the window is not something that the fire department could have testified to it makes it more likely if he was screaming before the he was grinning later and it is the defendant's burden to disprove the possibility of prejudice this is the court's standard requires that there is once the jury is exposed six rainiest information and it's undisputed that it was there is a presumption of prejudice and it is the defendant's burden to establish that there is not even a reasonable possibility that the jury could that that the information could have affected the outcome the judge fitzgerald look this wasn't this wasn't the central issue the central issue was  at doing at the moment of the shooting says that was the issue at the trial and as to that central issue the recordings really don't add anything and respectfully we disagree because it's not a finding of fact by the by the district court you have to do you have to come up with clear or to disapprove that or no your honor that is not a finding of fact because what we're talking about is the relevance of preemption in conduct on what came later and under the boy case which the defendant's relied upon the court has held at times that printed in conduct can corroborate how the individual acts later and it certainly makes more probable the disputed fact that ferocity rod was acting in a violent and out of control during the moment of feuding and the reason that's so damaging to the case is because the court ruled that all the princeton conduct was inadmissible so we were able to even so while we were able to on ample evidence about what the conduct was at the moment of the shooting we were forbidden from putting on any evidence by the court's ruling as to what happened before officer hernandez arrived but there's a rd critical fire department this completely reframed the incident in the jury's mind because if the firefighters are the lead responders then the firefighters respond to provide medical care to injured patients but police are lead responders to gain control of dangerous suspects so this is all evidence they came only from the nine hundred and eleven call moreover the jury heard this not once but six times each of the witnesses who testified at trial got to testify once the nine hundred and eleven call or testified six times and the most important for that detail is that unlike this this was ultimately a credibility contest that's what the case was it was between competing eyewitness testimony about what happened there was no clear video of what happened the only witness the only eyewitness whose testimony whose credibility was entirely unimpeached at the end of trial was the ninety one dollars color because she was never cross examined in this court case and estell amenia this court held that that is a critical detail making the evidence non cumulative and prejudicial even w overlaps with information that was a deuced at trial because those witnesses were cross examined here the nine hundred and eleven caller was not there is certainly the reasonable possibility that the nine  the verdict not whether it could have that's a different standard it's a higher standard and it's erroneous but looking at the correct standard every dixon factor which are the five factors the court considers in determining whether to order a new trial points in our favor st whether the material was actually received in this so how it's undisputed that the material was received and the undisputed facts established that it was the defendant's risk misrepresentations that caused the jury to be exposed to this evidence number two the length of time the evidence was available to the jury is undisputed the evidence was available to the jury from the beginning of deliberations until eleven thirty nine am the next day just three hours or about three and a half hours before the verdict came back that means the jury had the audio to listen to might have gone home thinking about it might have gone to bed thinking about it could have come back the next day and resumed listening to the audio this completely would have been devastating to the plaintiff's case sir to the extent to which the juror discussed and considered it mr shute expectoration also establishes and there are no facts to controvert this that the jury discussed the the recording and they considered the recording and they ultimately made credibility determinations based upon the recording forth whether the material was introduced before verdict was reached also undisputed that that's what happened here and then finally whether there are any other matters which may bear on the issue of reasonable possibility because i'd like to focus on what you think are the actual old concludes accordingly there is no reasonable possibility that admissible recordings affected the verdict and you think that the correct standard is whether they could have affected the or the verdict that's correct under this if we send this back and judge fitzgerald copies us all over again and then just picks the words could have been there or you done were not because there was an additional error of excluding the shooting declaration which establishes that the magnitude of prejudice and at the core the jury did not follow the court's instructions we know that the jury did not follow instruction thirty because the jury did not notify the court immediately upon listening to the tape they listen to it six times and never call and they want to hear that then should a declaration also establishes that the jury did not listen to the curative instruction and less than no further questions i'd like to reserve the remainder of my time and that's fine thank you morning your owners may please the court my name is scott dick's lawyer i represent the city of long beach chief luna and officer and i'd like to begin quickly with just addressing this idea that the district court applied the wrong legal standard in evaluating the new trial motion if you look at page eight of the excerpts of record which also is page eight of the order the court cites this court's mom tastes case and says if a juror has been exposed to extraneous evidence the trial court should grant a new trial if there is a reasonable possibility that the material could have affected the verdict so right there the district court articulated the standard precisely correctly and there's no basis for a limited reminded of the sort that judge by be mentioned might also like to address the question of the court's questioning regarding hum miss judge fitzgerald was precisely correctly excluded recordings to which the jury was exposed added nothing new to the jury's factual mix and i'll address the council's arguments point by point st of all counsel says that the excluded recordings introduced the concept that morag might have jumped and that's just wrong the excluded recordings instead said the nine hundred and eleven caller said he jumped or fell i don't even know so there was no statement that he jumped it was simply a statement that  didn't know so a statement i don't know doesn't add anything let alone anything material to the to what was in front of the jury here nd the idea that morag was screaming and i right now the dispatch call didn't use those terms but the dispatch call did say he was acting violent and that he was six hundred and forty seven f which meant he was intoxicated to the point that he couldn't take care of himself or others so saying that such a person who's acting violent and intoxicated to that degree is irate adds nothing new of any consequence finally the statement we need police it was no secret to the jury that police were called to the scene here and again that's no surprise in a situation where  the where mr morag was intoxicated to the degree that he was and acting violent which the dispatch call which was properly admitted told officer hernandez and then the jury heard that as well so judge fitzgerald was precisely correct that this was cumulative it added nothing new that the jury had already heard and so for that reason it wasn't prejudicial counsel i got a couple of questions about judge fitzgerald's november st order a little confused so  fact declines to find forfeiture and says i'm going to go to the merits of them on page let's see sorry yes sixteen we have a discussion of plane ever final but final two lines on that page so maybe it's harmless but i'd like to address that but the way i understand the order is that there are two species of waiver it issue and then our briefing tracks this is well st there's an argument that the city made below and then we make again on appeal that there was a waiver of the entire argument that a new trial is necessary due to the exposure to excluded evidence because in the moment before the jury reached a verdict plaintiff's counsel expressly agreed with the district court proposal for handling the situation invited or argument is that as distinguished from planar yeah yeah in essence it's an invited argument we also cite cases for the principle that if you affirmatively agree with what the court's doing you can't come on appeal and complain about it so that was an argument that was made that this entire new trial theory is in trial plaintiff's entire new trial argument was waived then there's a somebody no review whatsoever not right right now because when there was still a chance to do something before the jury returned a ver plaintiffs affirmatively to it's not the plaintiffs just stayed silent plaintiffs counsel affirmatively told the district judge well the district judge said ok i think we can remedy this with a curative instruction here is what i plan to tell the jury and plaintiff counsel said that's fine with plaintiffs your honor so that having said that the whole the whole challenge should be waived so the district judge which but the judge doesn't says he considers it right and then so i think i'm going to says i'm going to do it on the merits i'm a little confused as to why use as a plane air i think he cited plane air and we do this in the brief to address challenges to the jury instruction the idea that the jury instruction the curative instruction that was given was deficient now again so there's case law that says where a plaintiff doesn't properly preserve a challenge to a jury instruction it can on the less be reviewed in civil cases for plain error i see in this and i know that he does say that the instruction constitute really sort of plainer exactly and it it didn't as evidence st of all by the fact the plaintiffs below agreed with it the district court said in some in substance what he planned to tell the jury plaintiff's counsel said that's fine with the point of only after learning that there was a defense verdict the plaintiff's counsel contend for the st time that actually no curative instruction would have sufficed or that even if it would the curative instruction here was somehow too weak and that argument's wrong in any event that curative instruction told the jury explicitly do not consider the excluded recordings the district judge and furthermore took the iranians just from the jurors and as  or that's about as clear and unambiguous as you can get in terms of instructing the jury to disregard it so the curative instruction ameliorated the situation it the jury presumptively followed it and there's no admissible testimony suggesting that the jury didn't follow the instruction even should expect aeration doesn't say it doesn't mention the instruction one way or the other pair back the declaration a little bit too far because the rule some rule exclude statements about the playing of the tape and the number of times it was played isn't that evidence about an extraneous influence and so if it's played five times that's not about the jurors mental process i agree your honor but i think a fair reading of the court's order indicates the order isn't quite as broad is as plain as counsel is representing and i direct the court to page nineteen of the excerpts of record the district judge issue subjective effect of evidence on the jurors and the jury's deliberative process now that's that's exactly correct that's what that's the heartland of what real success six b excludes the court continues it is over ruled only to the extent the declaration indicates that the jurors did consider the inadmissible recording so i think a fair reading of the order i mean consider implies more than just heard but i'm not going to close my ears to how many times the jury heard it i i think consider reading of the court's order shows that the court did exactly what rule six hundred and six be required and if the court didn't and he said there would almost necessarily be harmless whether the jury heard the excluded recording once or six times the fact of the matter is as judge fitzgerald properly determined it was the there was no new information in the excluded recording so that was equally true whether it was heard once or six times so for that reason to the district court's decision should be a twenty one judge fisher old wrote the declaration of roberts you dick is only admissible to the extent it provides that the jury listen to the nine hundred and eleven recordings they were incorrectly sent back to the jury room labeled exhibit three  the nd part which you reading you didn't read the rest of the sentence as the rest of the equation is clearly in this bill as it goes to the subjective effect of evidence on mr shooting and the rest of the jurors so wouldn't the statements about playing it over and over be covered by the st part because that's the part to the extent it provides the jury listened to and not the subjective fact part i mean his argument is that he didn't do  it's two categories isn't this in the st category that was admissible no it's not covered because the court the district court also said what we learned from the shooting declaration we already knew from other  sources and even if the district court had admitted or considered that aspects of the shooting declaration then the error was in failing to mention it once in the district court's order or apply it under the direction of factor which is what it was required to do so the reasonable reading of the district court's order is that all of that evidence was excluded it is one of the listed factors and he didn't mention that in his order the multiple claims it's never appears in the district court order that the jury listen to it more than once and yes the you know he's meant he is mentioned on on e r twenty one dollars that's page three of that september  th order he says the extent to which the jurors follow the court's instructions the recordings that the jurors listened to during their deliberations what pieces of evidence the jurors discussed during deliberations yeah i didn't he didn't set out how many how many times he listened to it but it's and that and that's a critical factor here i listened to i listen to this recording i listen to it several times because at a hard time period it's not it's not a great surprise that the jurors would have listened to it several times they're going to listen to it once they probably go listen to it several times just to try to figure out what it was and that that also goes to the district court error in understating in misapplying the level of prejudice here again it is the defendant's burden on the new trial motion to establish that there is not even a reasonable possibility that the recordings could have affected the verdict so the extent to which there is any ambiguity and we don't believe that there is in the absence of evidence from the defendants and they put forward none on this point you honour's conclusion is the right one it should have been inferred that that quote district court that the jury listen to the recordings multiple times that should have been considered under the diction factors and that is just one of the many areas in which the district court misapplied and failed to identify the devastating nature that this evidence had on the evidence was devastating why did you agree to the to the to the corrective instruct because at the time your honor we know one could have imagined that that's having your cake and eating it too so if you feel it feels a little unfair for you to say that's fine judge but as soon as we get the verdict well obviously this was a devastating piece of that i'd like to make a different point no one could have understood that the jury would not fall the court's curative instructions it would presume that the jury will follow the court's care of instruction were required under the law to follow that presumption only after the verdict to be learned from the shooting declaration and frankly from the record as a whole that the jury was not following the court's instructions it clearly violated instruction thirty and it most certainly violated the curative instruction as well that's and that but that's evidence that we cannot consider correct no that's evidence that must be considered your honor issue that declaration when he talks about that listening to the recording over and over again that proves that the jury violated instruction number thirty two immediately notify the court it was exposed i'm sorry i thought you were talking about that they violated the instructions for it well that's that comes from the shooting declaration can we consider that you can because it would be admissible portions of the shooting declaration include whether the jury discussed the recording and the context of those discussions and what we have from the shooting declaration there is no mention of the curative instruction it says that we  listen to it we discussed as they should have a declaration made clear that they continued to discuss it after they got the curative instruction it does not make that explicit but again because it's the defendant's burden to disprove even the reasonable possibility that the recording cut it out require speculation on our part wouldn't know it would it's the most reasonable inference from them from the record that they contend that they ignored their instructions and that they continued to discuss it after they got think you're out of instruction  yes because contrary to all of our presumptions the jury's follow their instructions well the declaration and frankly the record as a whole proves that the jury did not follow instruction thirty the court the jury never informed the court they had been exposed to evidence so we know right there that the presumption is overcome the jury was not following the court's instructions the shooting declaration also establishes that the jury they listen to it they discussed it in a context of whether was violent they also did also affected credibility determinations that they made as to other admissible evidence that's admissible under the rutherford case that is testimony that the court must consider and that th reasonable inference to draw from that is that that was that the court did not disregard the information i think that's the only fair reading of the declaration again it's the defendant's burden to prove this didn't happen and they have no none of these facts are controver