NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEANNA ANDERSON,

Plaintiff

- Appellant,

v. ANTHONY ARMOUR, Jr., husband; et al.,

Defendants

- Appellees. No. 20

- 17284
D.C. No. 2:16

- cv - 03563

- JJT

MEMORANDUM *

Appeal from the United States District Court for the District of Arizona John Joseph Tuchi, District Judge, Presiding Argued and Submitted December 8, 2021 San Francisco, California Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges. Jeanna Anderson sued Officer Anthony Armour Jr. and the City of Phoenix under 42 U.S.C. § 1983 and Arizona state law , alleging Armour sexually assaulted her and used excessive force when arresting her during a valid traffic stop. After a four

- day trial, the jury found in favor of the Defendants and answered special interrogatories indicating no finding of sexual assault. Anderson appeals, arguing

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36

- 3. 

# FILED

DEC 16 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS2

that the district court erred in three ways: (1) refusing to give an adverse infere nce instruction on a purportedly spoliated recording; (2) precluding evidence of Armour’s previous instances of alleged assault, including the alleged sexual assault of a fellow officer; and (3) precluding extrinsic evidence of Armour’s placement on the co unty Brady l ist. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. The district court did not abuse its discretion in denying Anderson’s motion for an adverse inference instruction under Federal Rule of Civil Procedure 37(e). Armour used hi s cell phone to record the period when Anderson was handcuffed in the police car, but he disposed of the phone in either late 2015 or early 2016, without securing the recording. However, as Anderson did not file a complaint with the police department rega rding her arrest until March 2016, at best it is unclear whether Armour was under a duty to preserve the recording when he disposed of the phone

. Fed. R. Civ. Proc. 37(e). Thus , Anderson failed to carry her burden to affirmatively prove that the recording should have been preserved in anticipation of litigation. Additionally, Anderson failed to prove that the recording was destroyed “with the intent to deprive [Anderson] of the information’s use in the litigation

. ” Fed. R. Civ. Proc. 37(e) (2) . T he only evidence presented on
Armour ’s reason for dispos ing of the cell phone was Armour’s testimony that the cell phone broke and no longer worked

. Anderson’s arguments regarding a3

statutory and common law duty to preserve the recording are waived because Anderson failed to bring these arguments before the district court. See Bolker v.
C.I.R. , 760 F.2d 1039, 1042 (9th Cir. 1985). 1
2. Nor did t he district court abuse its discretion in rejecting Anderson’s argument that Armour’s alleged prior history of assault was admissible habit evidence under Federal Rule of Evidence 406. “In deciding whether certain conduct constitutes habit, courts consider three factors: ( 1) the degree to which the conduct is reflexive or semi

- automatic as opposed to volitional; (2) the specificity or particularity of the conduct; and (3 ) the regularity or numerosity of the examples of the conduct.” United States v. Angwin , 271 F.3d 786, 7 99 (9th Cir. 2001); overruled on other grounds in United States v. Lopez , 484 F.3d 1186 (9th Cir. 2007) (en banc). A history consisting of four disparate alleged assaults over a five

year period is insufficient to constitute a habit under Angwin

. T he di strict court did not abuse its discretion in precluding testimony from Abigail Frost concerning an alleged sexual assault by Armour. Under Federal Rule of Evidence 415, because Anderson alleged a sexual assault, the district court ha d

1 These arguments also fail on the merits. A c ommon law spoliation analysis mirrors our analysis under Federal Rule of Civil Procedure 37(e). See Ryan v. Editions Ltd. West, Inc. , 786 F.3d 754, 766 (9th Cir. 2015). Statutory spoliation under A.R.S. § 39

- 1 21.01(B) is equally unpersuasive , as the recording at issue is private in nature, and therefore not a public record under Griffis v. Pinal County , 215 Ariz. 1 ( Ariz. 2007).4

the discretion

— but w a s not required

— to admit evidence that Armour previously committed another sexual assault. In considerin g its admissibility , the district court properly balanced the factors we laid out in Doe ex rel. Rudy

- Glanzer v. Glanzer , 232 F.3d 1258 (9th Cir. 2000), and concluded , due to several significant differences between the two purported assaults , that Frost’s testimony was
i nsufficiently relevant under Glanzer

. 3. Finally, t he district court did not abuse its discretion in precluding extrinsic impeachm ent evidence regarding Armour’s placement on the county Brady list. The trial court has “very broad discretion in applying Rule 403,” Liew v. Off

. Receiver & Liquidator , 685 F.2d 1192, 1195 (9th Cir. 1982), and it reasonably concluded that the Brady list evidence bore a substantial risk of confusing the issues and creating unfair prejudice that substantially outweighed its probative value given how “many agents are on Brady lists for issues having nothing to do with untruthfulness

. ” And d espite Anderson’s arguments to the contrary, the district court did allow Anderson to cross

- examine Armour on past instances of untruthfulness

— including potential policy violations

— to attack Armour’s credibility without exceeding the bounds of Federal Rule of Evidence
608.
AFFIRMED.