FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

YVON WAGNER, as the personal

representative of the Estate of Eric

Vogel,

Plaintiff-Appellant,

v.

COUNTY OF MARICOPA, a political

subdivision of the State of Arizona;

JOSEPH M. ARPAIO, husband;

UNKNOWN ARPAIO, Named as Jane

Doe Arpaio - wife,

Defendants-Appellees.

No. 10-15501

D.C. No.

2:07-cv-00819-

EHC

ORDER AND

AMENDED

OPINION

Appeal from the United States District Court

for the District of Arizona

Earl H. Carroll, Senior District Judge, Presiding

Argued and Submitted

April 15, 2011—San Francisco, California

Filed November 16, 2012

Amended February 13, 2013

Amended December 30, 2013
2 WAGNER V. COUNTY OF MARICOPA

Before: John T. Noonan and N. Randy Smith, Circuit

Judges, and Frederic Block, Senior District Judge.*

Order;

Opinion by Judge Noonan;

Dissent by Judge N.R. Smith

SUMMARY**

Civil Rights

The panel amended a prior amended opinion and dissent

filed on February 13, 2013, reversed the district court’s

judgment entered following a jury trial and remanded, and

denied a petition for rehearing and a petition for rehearing en

banc on behalf of the court, in an action brought by the Estate

of Eric Vogel asserting that jail officials were partially

responsible for Vogel’s death from acute cardiac arrhythmia

following his release from jail.

Plaintiff alleged that County of Maricopa jail officers

subjected Vogel, who suffered from a mental illness, to an

unreasonable search and seizure while he was a pretrial

detainee. Prior to transferring Vogel into the jail’s

psychiatric unit, defendants subjected him to a “dress out,”

during which they forced him on the ground, stripped him of

* The Honorable Frederic Block, Senior District Judge for the U.S.

District Court for Eastern New York, Brooklyn, sitting by designation.

** This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
WAGNER V. COUNTY OF MARICOPA 3

all his clothes, and changed him into the jail outfit, which

included pink underwear.

The panel held that the district court erred by limiting the

testimony of Vogel’s sister at trial under the hearsay rule

because her statements were offered to establish Vogel’s state

of mind rather than to prove the details of the incidents at the

jail.

In the new amended opinion, the panel held that on

remand plaintiff may prevail on the proposition that for the

jail to apply the dress-out in pink procedure automatically to

a man its own staff had identified as in need of psychiatric

treatment was in deliberate indifference to his serious medical

needs. The panel held that because of the evidentiary rulings

of the trial court, the issue was not properly presented to the

jury. In addition, the panel held that the district court’s

rulings deprived plaintiff of any foundation for medical

testimony as to the probable cause of Vogel’s death. The

panel did not reach the admissibility of the medical testimony

because as the case developed under the district court’s

rulings, the testimony lacked all foundation. 

Dissenting, Judge N.R. Smith stated that the majority

opinion reversed the district court on issues that had been

waived and were not properly before the panel, failed to

correctly construe the hearsay rule and failed to give the

proper deference to the district court’s other evidentiary

rulings.
4 WAGNER V. COUNTY OF MARICOPA

COUNSEL

Joel B. Robbins and John M. Curtin (argued), Phoenix,

Arizona, for Plaintiff-Appellant.

Eileen D. Gilbride, Phoenix, Arizona, for DefendantsAppellees.

ORDER

The amended opinion filed on February 13, 2013 is

amended by eliminating the following part of the opinion:

At Slip opinion page 13 at “When a color” through to

page 14 ending immediately before “Argument to the Jury.”

Insert in its place the following paragraph:

“On remand the plaintiff may prevail on the proposition

that for the jail to apply the dress-out in pink procedure

automatically to a man its own staff had identified as in need

of psychiatric treatment was in deliberate indifference to his

serious medical needs. Because of the evidentiary rulings of

the trial court, the issue was not properly presented to the

jury.

In addition, these rulings deprived the plaintiff of any

foundation for medical testimony as to the probable cause of

Vogel’s death. We do not reach the admissibility of the

medical testimony because as the case developed under the

district court’s rulings, the testimony lacked all foundation.”
WAGNER V. COUNTY OF MARICOPA 5

The dissenting portion of the opinion filed on February

13, 2013 is amended by eliminating the following:

At Slip opinion page 15 delete <the third revision> and

replace it with <the fourth revision>.

The dissenting portion of the opinion is further amended

by eliminating the following part of the dissent:

At Slip opinion page 26 at <I fail to understand why>

through to immediately before <IV. Closing Argument>.

In light of these amendments, Judges Noonan and Block

vote to deny the petition for rehearing and recommend

denying the petition for rehearing en banc. Judge N.R. Smith

votes to grant the petition for rehearing and the petition for

rehearing en banc. The full court has been advised of the

petition for rehearing en banc, and no judge of the court has

requested a vote on it. Fed. R. App. P. 35. The petition for

rehearing and the petition for rehearing en banc are denied. 

No further petitions for rehearing or for rehearing en banc

shall be entertained.

OPINION

NOONAN, Circuit Judge:

The central figure in this case, Eric Vogel, suffered from

mental illness. Our system of laws is administered by

rational human beings. It has always been a challenge to the

legal system to interact with the irrational.
6 WAGNER V. COUNTY OF MARICOPA

Yvon Wagner, as the personal representative of the estate

of her brother, Eric Vogel, appeals the judgment of the

district court in favor of the defendants, County of Maricopa

and Joseph Arpaio. We reverse the judgment and remand for

a new trial.

FACTS

Eric Vogel was born on December 21, 1964. By the age

of six, he was showing signs of potential illness. His parents

withdrew him from school when he was in the second grade,

and he was thereafter home-schooled until he graduated from

high school. He attended a community college for two

semesters and part of a semester at Arizona State University. 

Thereafter, he simply lived at home.

Living at home, without further formal education, Vogel

had no gainful employment and lived a remarkably restricted

life. The windows of his home itself were covered with

blankets and tape so that no one could see in. After his

father’s death or departure, he lived alone with his mother. 

He left the home no more than two or three times to attend

the funerals of relatives. In October 2001, when Vogel was

36, his sister, Yvon Wagner, visited the home and found him

to be delusional, imagining that a snake was around his neck.

On the morning of November 12, 2001, for no apparent

reason, Vogel left his home. Police responded to a report of

a burglar in the neighborhood and spotted Vogel as a possible

suspect. The first officer on the scene struggled to get control

of him while Vogel shouted, “Kill me.” When a second

officer arrived, Vogel stated that he, Vogel, must see the

president. The police said they would accommodate him. He

calmed down, and they drove him to the Phoenix jail.
WAGNER V. COUNTY OF MARICOPA 7

In Arizona, common jails are kept by the sheriff of the

county. Ariz. Rev. Stat. § 31-101. Joseph Arpaio, as the

sheriff of Maricopa County, kept the jail to which Vogel was

brought.

Vogel was put under arrest for assaulting a police officer. 

He completed a medical questionnaire, indicating that he had

high blood pressure but no other health problems. A

classification counselor interviewed him and placed a

psychiatric hold on him. A psychological counselor

examined him and concluded that he needed psychiatric care.

He was put in an isolation cell with a huge window

opening the cell to the view of the jailers and to inmates. The

next morning, November 13, Vogel was assessed by a

psychological counselor as disoriented, paranoid, and

psychotic. He told her that he was at the World Trade Center

getting messages from satellites. She obtained an order for

his transfer to the inpatient psychiatric unit at the jail.

That afternoon, Vogel was informed that he must “dressout.” In the argot of the jail, “to dress-out” was to change

from one’s civilian clothes to prison garb approved by Sheriff

Arpaio. The prison outfit included pink underwear. Vogel

declined to change.

The “dress-out” prison officer summoned assistance –

four other officers, each to hold an arm or a leg while Vogel’s

clothes were changed. He was placed on the ground, stripped

of all his clothes, and forced into the jail ensemble including

the pink underwear. As the process went on, he shouted that

he was being raped. The officers were aware that he was

being transferred to the Psychiatric Unit. At the end of the

“dress-out” Vogel was wheeled there in “a restraint chair.”
8 WAGNER V. COUNTY OF MARICOPA

Vogel received treatment for a week and was then bailed

out by his mother. On December 6, 2001, he was in his

mother’s car when she had a minor traffic accident. The

police were summoned. Before they arrived, however, Vogel

left the scene and attempted to walk four or five miles to his

home. He died the next day. The cause, according to the

Maricopa County Medical Examiner, was acute cardiac

arrhythmia.

PROCEEDINGS

On December 6, 2002, Vogel’s mother as representative

of his estate began this action in Arizona Superior Court. It

was removed by the defendants to the federal district court,

which eventually returned the case to the state court. The

plaintiff amended to assert a claim against the defendants for

violation of 42 U.S.C. § 1983 for subjecting Vogel to an

unreasonable search and seizure, denying due process and the

equal protection of the laws, and acting with deliberate

indifference to his serious medical needs. A claim was also

asserted under the Americans with Disability Act, 42 U.S.C.

§ 12131, et seq., and the Rehabilitation Act of 1973,

29 U.S.C. § 794, as well as several claims under Arizona law. 

The case was transferred back to the federal district court.

In limine, the district court ruled that Vogel’s mother and

sister could not testify to what he told them about events at

the jail. The court also ruled that counsel could not refer to

“pink underwear” unless he could show that the record

contained “credible evidence” that Vogel was aware of the

color of the underwear. The court also precluded the

testimony of the plaintiff’s expert, Dr. Spitz, that Vogel’s

death was in part caused by the “dress-out,” thereby
WAGNER V. COUNTY OF MARICOPA 9

preventing the issue of liability for the death from reaching

the jury. The court also limited the testimony of Dr. Esplin.

Before trial began, Vogel’s mother died and his sister

Yvon Wagner replaced her as the representative of the estate.

At the close of the trial, the court denied plaintiff’s

counsel the opportunity to make a rebuttal.

The jury returned a verdict for the defendants on each

count. This appeal followed.

DISCUSSION

We review evidentiary rulings for abuse of discretion and

reverse if the exercise of discretion is both erroneous and

prejudicial. As Judge Smith points out, it is not entirely clear

whether construction of a hearsay rule is a matter of

discretion or a legal issue subject to de novo review. 

Compare United States v. Stinson, 647 F.3d 1196, 1210–11

(9th Cir. 2011), with United States v. Ortega, 203 F.3d 675,

682 (9th Cir. 2000). We need not resolve the ambiguity here

because our conclusions would be the same under either

standard. We begin with the ruling limiting the testimony of

Yvon Wagner.

Exclusion of Wagner’s testimony. Wagner in her

deposition stated:

He [her brother] felt he was being raped. 

He felt one of the officers attempted to put his

penis in his mouth and that he had to keep his

mouth so tight that he bruised his outer lips to

avoid being accosted that way.
10 WAGNER V. COUNTY OF MARICOPA

He was sure they were going to rape him. 

He hollered to people. He was sure that all

the inmates heard him saying who he was and

that he was being raped and please help him. 

And they were, you know, have [sic] a party

at his expense. . . .

He believed he had been raped. He

believed somebody took their penis out of

their pants and attempted to insert it in his

mouth. And that’s as close to – my brother

was a virgin. He – 36 years old, never

touched another woman. This was very, I’m

sure, frightening for him.

In response to the motion in limine, Wagner made the

same argument she makes now. She argued that her

statements were

not being offered to prove the details of the

incident at the jail. Her testimony is not to

prove an actual rape, but instead to show her

brother’s state of mind following his

incarceration. Her testimony establish[es] the

impact that the event had on Eric. Yvon can

testify as to the statements he made, his tone

of voice, and his state of mind in making

them.

Federal Rule of Evidence 803(3) excepts from the

general exclusion of hearsay “statement[s] of the declarant’s

then-existing state of mind (such as motive, intent, or plan) or

emotional, sensory, or physical condition (such as mental

feeling, pain, or bodily health), but not including a statement
WAGNER V. COUNTY OF MARICOPA 11

of memory or belief to prove the fact remembered or

believed[.]” The “declarant” is the person who made the outof-court statement. See Fed. R. Evid. 801(b).

Indisputably, Wagner could have testified at trial about

the impact the jail incident had on Vogel, his mood following

the incident, how disturbed he seemed, and even what he

thought happened to him during the incident, all without

putting inadmissible hearsay before the jury. None of this

testimony would have been put forth in order to establish the

truth of what he had said. Wagner proposed to testify about

how extremely delusional Vogel was following the incident,

and more importantly, the emotional impact the incident had

on him, including how humiliated he now felt by the pink

underwear. She was not asserting the truth of anything that

Vogel said had happened to him in jail.

Her testimony was admissible not to prove “the fact

remembered or believed” but the “mental feeling” of Vogel. 

As our dissenting colleague points out, the limiting language

of Rule 803(3) bars “‘statements as to why [the declarant]

held the particular state of mind, or what he might have

believed that would have induced the state of mind.’” United

States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) (quoting

United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980)). 

The bar applies only when the statements are offered to prove

the truth of the fact underlying the memory or belief. In

Emmert, for example, the defendant sought to introduce his

out-of-court statement that “he was scared because of the

threats made by the agents.” 829 F.2d at 810.
12 WAGNER V. COUNTY OF MARICOPA

Here, Vogel’s statements to his sister were offered to

establish his state of mind, not that he was raped or that he

went through the dress-out procedure. The statements were

offered to show his state of mind at the time of the

conversation, thus satisfying any contemporaneity

requirement. See United States v. Ponticelli, 622 F.2d 985,

991 (9th Cir. 1980), overruled on other grounds by United

States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en

banc). That Vogel was subjected to the dress-out was

established by the testimony of the defendants’ employees. 

The jury could infer the connection between the dress-out and

Vogel’s mental state. Exclusion of this evidence was

erroneous.

The defense argument that Wagner lacked personal

knowledge is mistaken. She had personal knowledge of how

Vogel had been impacted by the incident. She testified as a

percipient of what she had observed.

The court curtailed Yvon Wagner’s testimony further by

not permitting her to testify to Vogel’s conversation with her

where he gave his sense of humiliation at being forced to

wear pink underwear or his sense of having been subjected to

a rape. The court banned any testimony mentioning “rape”

or “gang rape” unless counsel showed that the terms were not

“unduly prejudicial.” As already noted, the court excluded

reference to the color of the clothes put on Vogel unless there

was credible evidence that “Vogel was aware of the color of

the jail-issued underwear.”

The rulings as to “rape” and “gang rape” misconceived

any testimony Wagner would have offered. She would have

used the words to show her brother’s present state of mind,

not his past experience.
WAGNER V. COUNTY OF MARICOPA 13

As to testimony of Vogel’s perception of the color,

Wagner’s testimony was to the current state of her brother’s

mind when he spoke to her. His mind was focused on the

implications of being dressed in pink. That he had been

dressed in pink was not a delusion. It was a fact, essential to

his experience and to the Estate’s deliberate indifference and

due process claims. The jury was asked to evaluate whether

the jail’s measures were taken in furtherance of a legitimate

goal or whether they were, instead, punitive. The exclusion

of any mention of “pink underwear” or “rape” delivered a

second blow to the plaintiff’s case.

That Vogel was delusional does not mean that he was

incapable of seeing. If you pricked him, he bled. As his eyes

saw the pink, his mind made the association of the color. So

at least a jury could infer from the impact of the dress-out on

Vogel, an impact apparent from his conversation with his

sister.

Exclusion of references to the color pink. On remand

the plaintiff may prevail on the proposition that for the jail to

apply the dress-out in pink procedure automatically to a man

its own staff had identified as in need of psychiatric treatment

was in deliberate indifference to his serious medical needs. 

Because of the evidentiary rulings of the trial court, the issue

was not properly presented to the jury.

In addition, these rulings deprived the plaintiff of any

foundation for medical testimony as to the probable cause of

Vogel’s death. We do not reach the admissibility of the

medical testimony because as the case developed under the

district court’s rulings, the testimony lacked all foundation.
14 WAGNER V. COUNTY OF MARICOPA

Argument to the Jury. The district court abruptly

eliminated the plaintiff’s opportunity for rebuttal argument. 

No good reason was given for this disappointment of the

plaintiff’s legitimate expectation. If the court intends to

restrict rebuttal, the litigants should be so advised prior to the

argument.

Counsel for the county suggested that Vogel’s family had

not provided adequate care for Eric Vogel. The argument

was irrelevant and improper.

For the reasons stated, the judgment of the district court

is REVERSED and the case is REMANDED for

proceedings in accordance with this opinion.

N.R. SMITH, Circuit Judge, dissenting:

They say “the third time’s the charm.” Not so in what is

now the fourth revision of this opinion, wherein the majority

still fails to correct all of its errors. As a result of these

errors, contrary to the Federal Rules of Evidence, noncontemporaneous hearsay testimony used to prove a

declarant’s memories, beliefs, and the cause of an underlying

state of mind is now admissible. Making matters worse, the

majority allows such testimony absent a foundation of

personal knowledge. In its opinion, the majority reverses the

district court on issues that have been waived and are not

properly before the panel, fails to correctly construe the

hearsay rule and fails to give the proper deference to the

district court’s other evidentiary rulings. I must therefore

dissent because:
WAGNER V. COUNTY OF MARICOPA 15

1. Assuming (but not deciding) that a de novo standard

of review applies when determining whether a statement is

hearsay, the majority fails to properly construe the hearsay

rule. Under the hearsay rule, statements asserting a

declarant’s beliefs are hearsay, if offered to prove the

declarant’s belief or offered for a purpose that requires the

declarant to believe the matters asserted are true. Therefore,

the district court did not err in concluding that Yvon

Wagner’s testimony was hearsay.

2. The majority fails to apply the “substantially

deferential” abuse of discretion test, recently elucidated by

our en banc panel in United States v. Hinkson, 585 F.3d 1247,

1262 (9th Cir. 2009) (en banc), for the remaining evidentiary

issues appealed here. Though an appellate jurist may have

ruled differently on these issues, “we may not simply

substitute our view for that of the district court, but rather

must give the district court’s findings deference.” Id.

I.

STANDARD OF REVIEW

This circuit’s case law is not entirely clear regarding

whether we review de novo a district court’s decision that a

statement is or is not hearsay. Compare United States v.

Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (“We review a

district court’s evidentiary rulings for abuse of discretion.”),

and United States v. Tran, 568 F.3d 1156, 1162 (9th Cir.

2009) (applying an abuse of discretion standard in

determining whether a statement is hearsay under Rule 801),

with Mahone v. Lehman, 347 F.3d 1170, 1173–74 (9th Cir.

2003) (“We review the district court’s construction of the

hearsay rule de novo . . . .” (quoting Orr v. Bank of Am., NT
16 WAGNER V. COUNTY OF MARICOPA

& SA, 285 F.3d 764, 778 (9th Cir. 2002))), United States v.

Collicott, 92 F.3d 973, 978–82 (9th Cir. 1996) (holding that

the district court erred, because the statements at issue were

hearsay and not admissible under Rule 801(d)(1)(B), never

mentioning whether the district court abused its discretion,

but rather seems to have reviewed the hearsay determination

de novo), and United States v. Warren, 25 F.3d 890, 894–95

(9th Cir. 1994) (held that the statements at issue were

admissible under Rule 801(d)(2)(A) because they were not

hearsay, with no mention of an abuse of discretion).

The Second Circuit and Sixth Circuit have held that a

district court’s determination whether a statement is hearsay

is reviewed de novo. United States. v. Ferguson, 653 F.3d

61, 86 (2d Cir. 2011); Biegas v. Quickway Carriers, Inc.,

573 F.3d 365, 378–81 (6th Cir. 2009). But see Trepel v.

Roadway Exp., Inc., 194 F.3d 708, 716–17 (6th Cir. 1999)

(“Therefore, in disregard of our heretofore well-settled

precedent that hearsay evidentiary rulings are reviewed de

novo, we shall review the district court’s ruling for an abuse

of discretion.” (citation omitted)).

We review the district court’s remaining evidentiary

rulings for abuse of discretion. Gen. Elec. Co. v. Joiner,

522 U.S. 136, 141 (1997). We do not reverse evidentiary

rulings unless the rulings are “manifestly erroneous and

prejudicial.” Orr, 285 F.3d at 773. “This includes the

exclusion of evidence under a hearsay rule.” Stinson,

647 F.3d at 1210. We also review the district court’s

handling of closing arguments for an abuse of discretion. 

United States v. Lazarenko, 564 F.3d 1026, 1043 (9th Cir.

2009).
WAGNER V. COUNTY OF MARICOPA 17

Our circuit employs a “significantly deferential” two-step

test to determine whether a district court abused its discretion. 

Hinkson, 585 F.3d at 1262. The first step “is to determine de

novo whether the trial court identified the correct legal rule to

apply to the relief requested.” Id. If so, the second step “is

to determine whether the trial court’s application of the

correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or

(3) without ‘support in inferences that may be drawn from the

facts in the record.’” Id. (quoting Anderson v. City of

Bessemer City, N.C., 470 U.S. 564, 577 (1985)). “If any of

these three apply, only then are we able to have a ‘definite

and firm conviction’ that the district court reached a

conclusion that was a ‘mistake’ or was not among its

‘permissible’ options, and thus that it abused its discretion by

making a clearly erroneous finding of fact.” Id. In other

words, “we do not automatically reverse a district court’s

factual finding if we decide a ‘mistake has been committed.’”

 Id. at 1263.

II.

WAGNER’S TESTIMONY

The majority first concludes that the district court erred

by excluding testimony from Vogel’s sister, Yvon Wagner,

regarding statements made by Vogel (who was deceased

before trial).1 Wagner would have testified regarding Vogel’s

1 Wagner would have testified that Vogel (1) said the detention officers

dressed himin “pink underwear, in pink slippers and, again, at his expense

they were accosting him” during the dress-out procedure; (2) believed he

had been raped; (3) “felt one of the officers attempted to put his penis in
18 WAGNER V. COUNTY OF MARICOPA

thoughts and beliefs during the dress-out procedure based on

statements Vogel purportedly made—after the fact—to

Wagner. The majority finds that the district court erred,

apparently as a matter of law, no matter whether the standard

of review is de novo or abuse of discretion. The majority

erroneously concludes that Wagner’s testimony was not

offered to prove what Vogel asserted.

A. Wagner’s testimony was hearsay evidence

The Estate argues that Wagner’s testimony was not

hearsay, because it was not offered to prove the details of the

dress-out procedure (i.e., that Vogel was actually raped). 

Instead, the Estate argues that Wagner’s testimony was

offered to show Vogel’s state of mind following the dress-out

procedure and the lasting impact the event had on Vogel

following his release. The majority asserts that Wagner “was

not asserting the truth of anything that Vogel said had

happened to him in jail.” Maj. Op at 11. I disagree with

both. Wagner’s testimony was offered to prove the truth of

the matter asserted—i.e., that Vogel believed the events he

described happened. The district court did not incorrectly

construe or apply the hearsay rule.

Hearsay “is a statement, other than one made by the

declarant while testifying at the trial or hearing, offered in

evidence to prove the truth of the matter asserted.” Fed. R.

Evid. 801(c). The majority agrees that, if Wagner’s

testimony—including Vogel’s statements that (1) he was

his mouth and that he had to keep his mouth so tight that he bruised his

outer lips to avoid being accosted that way,” and (4) believed the officers

used the pink underwear to put him in a vulnerable position before a

planned sex “party.”
WAGNER V. COUNTY OF MARICOPA 19

forcibly undressed by detention officers, (2) he was dressed

in pink underwear and slippers, (3) the officers “manhandled”

him on the floor of his jail cell, and (4) he called out to other

inmates for help—were offered for the truth of the matter

asserted, it would be hearsay. Even if this information were

consistent with other evidence in this case, it could not be

proven by Wagner using hearsay evidence.

However, the Estate and the majority assert that Wagner’s

testimony is not offered to prove the “truth of anything that

Vogel said had happened to him in jail.” Maj. Op. at 11. 

That assertion may be true, but it is not focused on Wagner’s

statements. For example, Wagner testified that Vogel

(1) “felt he was being raped,” (2) “felt one of the officers

attempted to put his penis in his mouth,” (3) “believed he was

being raped,” and (4) “believed the pink underwear was used

to put him in [a] vulnerable position with these officers.” 

Wagner’s testimony is offered to prove the truth of what

Vogel asserted—i.e., that he believed what he described

occurred. A statement is hearsay if offered to prove the truth

of the matter asserted. Focusing on Wagner’s statements,

they are hearsay, because they were offered to show that

Vogel actually believed the facts asserted. 30B Michael H.

Graham, Federal Practice & Procedure § 7044 (interim ed.

2000) (explaining that second-hand statements of belief are

hearsay, but may be admissible under Rule 803(3)’s

exception to the hearsay rule). Further, the statements are

hearsay, because it must be proven that Vogel believed the

matters asserted were true for the Estate’s mental state

argument to succeed. Id. § 7006 (“If the declarant must

believe the matter asserted to be true for any inference to

logically flow, . . . the hearsay risks of sincerity and narration

are present. Such statements are thus properly classified as

hearsay.”). The Estate never made an offer of proof to
20 WAGNER V. COUNTY OF MARICOPA

demonstrate that the proffered testimony complied with the

hearsay rule. Therefore, the district court’s determination

(that Wagner’s testimonywas hearsay) was not erroneous and

the district court did not misconstrue the hearsay rule.

B. Wagner’s testimony did not fall under Rule 803(3)’s

then-existing state of mind exception to the hearsay

rule

The Estate argues that, even if Wagner’s testimony were

hearsay, it was admissible as evidence under the state of mind

exception in Federal Rule of Evidence 803(3). The majority

agrees. However, the district court disagreed and, because

this is a discretionary decision, we must afford the district

court’s decision substantial deference. Here, the district

court’s determination that Wagner’s testimony regarding

Vogel’s post-release statements did not fall under Rule

803(3)’s state of mind exception was not illogical,

implausible, or without support in inferences that may be

drawn from the facts in the record. The statements (1) were

statements of memory or belief made at least one week after

the events at issue; and (2) were offered not simply to

demonstrate Vogel’s present mental condition but his past

mental condition (i.e., that he was agitated), and also to

explain why he was agitated (i.e., that he believed he was

being raped). Therefore, although we may have decided this

issue differently, the district court did not abuse its discretion.

Rule 803(3) creates an exception to the hearsay rule for

“[a] statement of the declarant’s then existing state of mind,

emotion, sensation, or physical condition (such as intent,

plan, motive, design, mental feeling, pain, and bodily health),

but not including a statement of memory or belief to prove the

fact remembered or believed . . . .” Fed. R. Evid. 803(3)
WAGNER V. COUNTY OF MARICOPA 21

(2010) (emphasis added). Vogel’s statements do not meet

Rule 803(3)’s foundational requirements of

“contemporaneousness, [lack of] chance for reflection, and

relevance.” United States v. Ponticelli, 622 F.2d 985, 991

(9th Cir. 1980), overruled on other grounds by United States

v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en banc). 

Vogel explained the dress out procedure to his family

following his release from jail, which was at least seven days

after the procedure took place. These were “statement[s] of

memory,” which are expressly prohibited under Rule 803(3). 

The Rules of Evidence exclude statements of memory,

because “[t]he more time that elapses between the declaration

and the period about which the declarant is commenting, the

less reliable is his statement . . . . The state of mind

declaration also has probative value, because the declarant

presumably has no chance for reflection and therefore for

misrepresentation.” Ponticelli, 622 F.2d at 991. Vogel

conceivably could have misrepresented what happened at the

jail (or what he believed happened) to explain or justify his

unruly conduct with the officers. Thus, although detention

officers’ testimony about what Vogel said during the dressout procedure is admissible (given its contemporaneity),

Vogel’s statements a week or two after the fact do not

provide the same probative value contemplated by the

exception in Rule 803(3). See United States v. Miller,

874 F.2d 1255, 1265 (9th Cir. 1989) (holding that hearsay

statements made less than 24 hours after an event did not

meet the contemporaneity and lack of reflection requirements

under Rule 803(3)).

Additionally, Wagner’s statements were offered to show

not only that Vogel was agitated during the dress-out

procedure, but also why he was agitated. Such use of

Wagner’s statements is not permitted under Rule 803(3), as
22 WAGNER V. COUNTY OF MARICOPA

interpreted by our circuit. We stated in United States v.

Emmert that “the state-of-mind exception does not permit the

witness to relate any of the declarant’s statements as to why

he held the particular state of mind, or what he might have

believed that would have induced the state of mind.” 

829 F.2d 805, 810 (9th Cir. 1987) (emphasis added) (quoting

United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980));

see also id. (“[Rule 803(3)] . . . narrowly limit[s] admissible

statements to declarations of condition—‘I’m scared’—and

not belief—‘I’m scared because [someone] threatened me.’”

(emphasis altered) (internal quotation marks omitted)). We

reaffirmed the validity of Emmert in United States v.

Fontenot by holding that hearsaystatements did not fall under

the exception in Rule 803(3), because the statements related

why the declarant held the particular state of mind. United

States v. Fontenot, 14 F.3d 1364, 1371 (9th Cir. 1994). The

Fifth Circuit and Tenth Circuit also do not allow statements

that identify why the declarant has the particular state of

mind. See, e.g., United States v. Lin, 960 F.2d 449, 452 (5th

Cir. 1992) (holding that “[e]vidence of . . . fear was

admitted,” but “[p]roperly excluded were the alleged reasons

for that fear” (citing Cohen, 631 F.2d at 1225)); United States

v. Ledford, 443 F.3d 702, 709–10 (10th Cir. 2005) (“The

phrase ‘because the defendant threatened me’ is expressly

outside the state-of-mind exception because the explanation

for the fear expresses a belief different from the state of mind

of being afraid.”).

The majority contends that we made it clear in Emmert

that “[t]he bar applies only when the statements are offered to

prove the truth of the fact underlying the memory or belief.” 

Maj. Op. at 11. However, in Emmert and Fontenot, we did

not indicate that our decisions hinged on the declarant

offering the reasons for the belief in order to prove the events
WAGNER V. COUNTY OF MARICOPA 23

believed. Rather, our decisions identified the reason for the

exclusion to be that the “testimony would have fallen within

the ‘belief category and would not have been limited to [the

declarant’s] current state of mind.” Emmert, 829 F.2d at 810;

see also Fontenot, 14 F.3d at 1371 (noting that “the

statements would have demonstrated that [Fontenot] believed

his and Cathy Fontenot’s lives were in danger” (alterations in

original)).

Here, Wagner intended to testify that Vogel was agitated,

because he believed he was being raped and the officers were

dressing him in pink underwear for a sex party. This

testimony was central to the Estate’s theory of causation that

Vogel’s traumatic experience in jail caused his fatal

arrhythmia several weeks later. For these reasons, and in

light of our case law, the district court’s application of Rule

803(3) to the facts of this case was not illogical, implausible,

or without support in inferences that may be drawn from the

facts in the record. The district court did not abuse its

discretion.

C. Wagner’s testimony lacked foundation

The majority also determines that the district court abused

its discretion in concluding that Wagner lacked personal

knowledge about Vogel’s mental condition during the

jailhouse dress-out procedure. However, the majority again

fails to give any deference to the district court’s decision. 

Federal Rule of Evidence 602 provides that a “witness may

not testify to a matter unless evidence is introduced sufficient

to support a finding that the witness has personal knowledge

of the matter. Evidence to prove personal knowledge may,

but need not, consist of the witness’ own testimony.” 

(emphasis added). The majority claims Wagner had adequate
24 WAGNER V. COUNTY OF MARICOPA

foundation, because she had personal knowledge of her

conversation with Vogel and perceived his emotions. The

majority claims Vogel’s statement’s went to establish his

state of mind at the time he spoke to his sister. Maj. Op. at

12. If Wagner’s testimony were only offered to prove

Vogel’s temperament during his conversation with Wagner,

the majority would be correct.

However, Wagner intended to offer various opinions

regarding Vogel’s state of mind while in jail and why he

reacted the way he did during the dress-out procedure. For

example, Wagner, testified that (1) Vogel “believed he was

being raped,” (2) Vogel “believed the pink underwear was

used to put him in [a] vulnerable position,” (3) Vogel hid

under his bed to protect himself because he was “paranoid”

and “felt he was in extreme harm’s way,” and (4) “this was

very, I’m sure, frightening for him.” The Estate’s entire

theory of liability turns on the purportedly indelible trauma

Vogel endured during his stay at the county jail. Thus, there

is no doubt that Wagner offered this testimony to prove what

Vogel felt and believed while he was in jail—not how he felt

as he described the jailhouse incident a week later. To be

sure, the County objected to Wagner’s testimony, not because

Wagner failed to establish that she actually had a

conversation with Vogel, but because Wagner lacked

foundation to testify about the thoughts and beliefs of her

floridly psychotic brother during the jailhouse incident. For

these reasons, we cannot conclude that the district court

abused its discretion in excluding this testimony, in part,

because of lack of foundation. Its determination was not

illogical, implausible, or without support in inferences that

may be drawn from the facts in the record.
WAGNER V. COUNTY OF MARICOPA 25

III.

EXCLUDING REFERENCES TO PINK

UNDERWEAR

The Estate failed to specifically and distinctly argue in its

opening brief that the district court erred in excluding

evidence related to pink underwear. Therefore, we should

consider such an argument waived, and we should not address

it. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998). 

While the Estate mentions the issue in its statement of issues

and summary of the argument sections of its opening brief,

the Estate fails to discuss and argue the point in the body of

the arguments section in the opening brief. Such a deficiency

waives the issue. See Martinez-Serrano v. I.N.S., 94 F.3d

1256, 1259 (9th Cir. 1996) (“[A]n issue referred to in the

appellant’s statement of the case but not discussed in the body

of the opening brief is deemed waived.”).

IV. 

CLOSING ARGUMENT

Lastly, the majority hastily concluded that the district

court abused its discretion by denying the Estate a rebuttal

closing argument at trial. However, the majority never

explains what law gives a plaintiff in the District of Arizona

an inalienable right to rebuttal argument, much less how the

district court abused its discretion in shaping closing

arguments under District of Arizona Local Rule 39.1(d). 

Rule 39.1(d) guarantees a “right to close” to the party bearing

the burden of proof, but that rule has never been defined to

provide the right to speak last. The district court permitted

the Estate to make a “thorough,” 60-minute closing argument. 
26 WAGNER V. COUNTY OF MARICOPA

Following a short recess, the court explained to counsel that

“[t]he closing is going to end with [the County]. There isn’t

going to be any rebuttal. I just did a little research, it’s

discretionary. [The Estate] had a thorough, complete effort

at it, and [the County] is entitled to that as well. But we’re

not going to have a rebuttal.” The court also noted, “I don’t

think there was anything that [the Estate] could have touched

on that [the Estate] didn’t explore, several times.”

It is well established that a “trial court has broad

discretion in controlling closing arguments.” United States

v. Spillone, 879 F.2d 514, 518 (9th Cir. 1989); accord

Fernandez v. Corporacion Insula De Seguros, 79 F.3d 207,

209–10 (1st Cir. 1996) (“The decision to permit rebuttal [in

a civil action] is a procedural matter which rests within the

sound discretion of the trial judge and rarely (if ever)

provides fertile ground for appeal.” (internal citation

omitted)). Because the Estate closed with a 60-minute

argument pursuant to Rule 39.1(d), the district court did not

abuse its “broad” discretion in denying the Estate a rebuttal

closing argument.

I would therefore affirm.