F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

Y V O N W A G

N E R , as the personal representative of the Estate of Eric Vog el, Plaintiff-Appellant

,

v

.

C O U N T Y O F M A R

I C O P A , a political subdivision of the State of Ariz ona; J O S E P H M. A R

P A I O , husband; U N K N O W N A R P A I O , Named as J ane Doe Arpaio - wife,

Defendants-Appellees

. N o. 10-15501

D.C. No. 2:07-cv-00819- EHC

ORDER AND AMENDED OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na Earl H. Carroll, Senior District J udg e, Presiding

Arg ued and Submitted April 15, 2011—San F rancisco, California

F iled November 16, 2012 Amended F ebruary

13, 2013 Amended December 30, 2013W A G N E R V

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B efore: J ohn T. Noonan and N. Randy Smith, Circuit J u dg e s, and F rederic B lock, Senior District J udg e. *

Order; Opinion by

J u dg e Noonan; Dissent by

J udg e N.R. Smith

SUMMARY * *

Civil Rights

The panel amended a prior amended opinion and dissent filed on F ebruary 13, 2013, reversed the district c o u rt’s judg ment entered following a jury trial and remand ed, a nd denied a petition for rehearing and a petition for rehearing en banc on behalf of the court, in a n action broug ht by the Estate of Eric Vog el asserting that jail officials were p arti ally responsible for Vog e l’s death from acute cardiac arrhy thmia following his release from jail.

Plaintiff alleg ed that County of Maricopa jail officers subjected Vog el, w ho suffered f rom a mental illne s s , t o an unreasonable search and seiz ure w h i l e he w as a pretrial det a i n ee. Prior to transferring Vog el into the jail’s
psy chiatric unit, defe n d a

nts subjected h im to a “dress out,” during which they forced him on the g round, stripped him o f

* T h e H o n o r a b le Fred eric B lo ck

, Sen io r District J u d g e f o r th e U .S. District Co u

rt f o r Eastern New

Yo rk , B ro o k ly

n , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p ar t o f t h e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.W A G N E R V

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all his clothes, a nd chang ed h im into the jail outfit, which included pink underwear.

The panel h eld that the district court erred by limiting the testimony of Vog el’s sist er at trial under the h earsay rule because her statements were o ffered to establish Vog el’s state of mind rather than to prove the d etails of the incidents at the jail.

I n t h e n ew amended opinion, the panel held that on remand plaintiff may p revai l o n the proposition that for the jail to apply the dress-out in pink procedure automatically to

a man its own sta f

f h ad identified a s in need of psy chiatric
treatment was in deliberate indifference to his serious medical needs. The p anel held that because o f the evidentiary ruling s of the trial court, the issue was not properly presented to the j u r y

. I n addition, the panel held that the district cour t ’s ruling s deprived p laintiff of any fo u n d a t ion for medical testimony as to the p robable cause of Vog el’s death. The panel did not reach the admissibility of the medical testimony because as the case developed under the d i s t r i ct court’s ruling s, the testimony

lacked all foundation.

Dissenting

, J udg e N.R. Smith stated that the m ajority opinion reversed the dis t r i c t c ourt on issues that had been waiv ed and were not properly before the p anel, failed to correctly construe the h e a rsay r u l e and failed to g ive the
proper deference to the distri c t c ourt’s other evidentiary ruling s.W A G N E R V

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COUNSEL

J oel B

. Robbins a nd J o hn M. Curtin (arg ued), Phoenix

, Ariz ona, for Plaintiff-Appellant.

Eileen D. Gilbride, Phoenix

, Ariz ona, for D e fendantsAppellees.

ORDER

The amended opinion filed on F ebruary 1 3
, 2 0 13 is amended by eliminating the following part of the opinion:

At Slip opinion p ag e 13 at “ W h en a color ” throug h to pag e 14 e nding immediately before “ A rgument to the Jury

. ”

I nsert in its place the followingparag raph:

“On remand the plaintiff may prevail on the p r opositio n that for the jail to a

pply the dress-out in p i n k procedure automatically to a man its own staff had identified as in need of psy chiatric treatment was in deliberate indifference to his serious medical needs. B ecause of the evidentiary r uling s o f the trial court, the iss u e w as not properly presented to the jury

.

I n a ddition, thes e r u ling s deprived the plaintiff of any foundation for medical testimony as to the probable cause o f Vog el’s death. W e do not reach the admissibility o f the

m edical testimony because a s the case developed under the district court’s ruling s, the testimony lacked all foundation.”W A G N E R V

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The dis s e nting portion of the opinion filed on F ebruary 13, 2013 is amended by

eliminating the following :

At Slip o pinion pag e 1 5 delete <the third revision> a nd replace it with <the fourth revision>.

The dissenting portion of the o pinion is further amended by eliminating the following part of the dissent:

At Slip opinion p ag e 26 at <I fail to understand why > throug h to immediately

before <I V. Closing Arg ument>.

I n lig ht of these amendments, J udg es Noonan and B lock
vote to d e ny the petition for rehearing and recommend deny ing the p etition f

or rehearing en banc. J udg e N.R. Smith
votes to g rant the petition for rehearing and the petition for rehearing en banc. The full court h as be e n advised of the
p etition for rehearing en banc, and no judg e of the court h as

r e q u e s t e d a v ote on it. F ed. R. A pp. P. 35. The p etition for rehearing and the p etition for r ehearing e n b a n c are denied. No further petitions for rehearing or for rehearing en banc shall be entertained.

OP INION

NOONAN, Circuit J udg e:

The central fig u re in this case, Eric V og el, suffered from mental illness. O ur sy stem of laws is a dministered b y rational human being s. I t has alway s been a challeng e to the leg al sy stem to interact with the irrational.W A G N E R V

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Yvon W ag ner, as the personal representative of the estate of her broth e r, E ri c V og el, appeals the judg ment of the district court in favor of the defendants, County of Maricopa and J oseph Arpaio. W e reverse the judg ment and remand for a new trial.

F ACTS

Eric Vog el was born on D ecember 21, 1964. B y the ag e of six

, h e was showing sig n s of potential illness. His parents withdrew him from school when he was in the second g r ade, and he was thereafter home-schooled until he g raduated from hig h school. He attended a community colleg e for two semesters and part of a semester at A riz ona State U niversity

. Thereafter, he simply

lived at home.

L iving at home, without further formal education, Vog el had no g ainful employ

ment and lived a r e markably restricted life. The windows of his home itself were c o v e r e d with blankets and tape so that no one could s e e in. After his father’s death or departure, h e lived a l one with his mother. He left the home n o more than two or t h r e e t i m es to attend the funerals of relatives. I n October 2001, when Vog el was 36, his sister, Yvon W ag ner, visited the home and f ound him
to b e delusional, imag ining that a snake w as around his neck.

On the morning of November 12, 2001, for no a pp a r ent
reason, Vog el left his home. Police responded to a r e port o f

a burg lar in the neig hborhood and spotted Vog el as a possible suspect. The first officer on the scene strug g led to g e t control of h i m w h i l e Vog el shouted, “Kill me.” W hen a second officer arrived, Vog el sta t ed that he, Vog el, must see the president. The police said they would accommodate him. He calmed down, and they

drove him to the Phoenix jail.W A G N E R V

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I n A riz o n a , c o mmon jails are kept by the sheriff o f the county

. A riz

. Rev. Stat. § 31-101. J oseph Arpaio, as t h e sheriff of Maricopa County
, kept the jail to which Vog el was broug ht.

Vog el w as put under a

r rest for assaulting a police officer. He completed a medical questionnaire, indicating that he h ad hig h blood pressure b ut no other health proble m s

. A classification co u nselor interviewed him and placed a psy chiat r i c hold o n him. A psy cholog ical counselor

ex a mined him and concluded that h e needed psy chiatric care.

He was put in a

n isolation cell with a hug e win d o w opening the cell to the view of the jailers and to inmates. The

nex t morning

, N ovember 13, Vog el was assessed b y a psy cholog ical counselor as d isoriented, paranoid, a nd
psy chotic. H e told her that he was at the W orld Trade Center
g etting messag es from satellites. She obtained a n o rd er for his transfer to the inpatient psy chiatric unit at the jail.

That afternoon, Vog el was informed that he must “dressout.” I n the arg ot of the jail, “ t o d re ss-out” was to chang e from one’s civilian clothes to prison g arb approved by Sheriff Arpaio. The prison outfit include d p i nk underwear. Vog el declined to chang e.

The “dress-out” prison o fficer summoned assista n c e

– four other officers, each to hold a n a r m or a leg while Vog e l’s clothes were chang e d. H e was placed on the g round, 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. T h e officers were aware that he was being transferred t o the Psy chiatric Unit. At the end of the “dress-out” Vog el was wheeled there in “a restraint chair.”W A G N E R V

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Vog el received treatment f or a week and was then bailed
out by his mother. On December 6, 2 0 0 1
, h e was in his mother’s car when she had a minor traffic accid e n t. The police were summoned. B efore they arrived, however, Vog el left the scene and attempted to walk four or five miles to his home. He died the nex t d a y

. T h e cause, according to the Maricopa County Medi c a l Ex aminer, was acute cardiac arrhy thmia.

P R OCEEDING S

On December 6, 2002, Vog el’s mother as representative of his estate beg an this action in Ariz ona Superior Cou r t

. I t

was removed by the defendants to the federal district court, which eventually r eturned the case to the state court. The plaintiff amended to assert a c laim ag a inst the d efendants for violation of 42 U .S.C. § 1983 for subjecting Vog el to an unreasonable search and seiz ure, deny ing due process a nd the equal protection of the laws, and a cting with deliberate indifference to his serious medical needs. A claim was also asserted u n der the Americans with Disability Act, 42 U .S.C. § 12131, et seq., and the Re h a b ilitation Act of 1973, 29 U.S.C. § 794, as well a s several c laims under Ariz o na law. The case was transferred back to the federal district court.

I n limine, the district court ruled that Vog el’s mother a nd sister could not testify to what he told them about events at the jail. The court also ruled that c o u n s el could not refer to “pink underwear” unless he could show t h at the record contained “ credible evidence” that Vog el was awar e o f the col o r o f the underwear. T h e c ourt also p recluded the testimony of the plaintiff’s ex pert, Dr. S p i tz , that Vog e l’s death was i n part caused b y the “ dress-out,” therebyW A G N E R V

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preventing the issue of liability f or the death from reaching the jury

. The c ourt also limited the testimony of Dr. Esplin.

B e fore trial b e g a

n, Vog el’s mother died and h is si s t er Yvon W ag ner replaced her as the representative of the estate.

At the c lose of the trial, the c o urt d e n ied plaintiff’s counsel the opportunity

to make a rebuttal.

The jury returned a v erdict for the de f e n d a n t s on e ach count. This appeal followed.

D ISCUSSION

W e review evidentiary ruling s for abuse of d iscretion a nd

reverse if the ex ercise of discretion is both erron e ous a nd prejudicial. As J udg e Smith points out, it is not entirely clear whether construction of a hearsay rule is a m a t t er o f discretion or a leg a l issue subject to de novo r e v iew. Compare United States v

. Stinson
, 6 47 F .3d 1 1 9 6
, 1210–11 (9th Cir. 2 011), with United States v

. Ortega
, 2 03 F .3d 675, 682 (9th Cir. 2000). W e need n ot r esolve the a mbig u ity here because our conclusio n s would be the same under either standard. W e beg in with the ruling limiting the testimony o f Yvon W ag ner.

Exclusion of W agner’s te stim ony. W ag ner in her deposition stated:

H e [ h e r brother] felt he was being raped. He felt one o f the officers attempted to put his penis in h is mouth a

nd that he had to keep his mouth so tig ht that he b ruised his outer lips to avoid being accosted that way

.W A G N E R V

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He was sure they were g oing to rape him. He h o l l ered to people. He was sure that all the inmates heard him say ing who he was a

nd that h e was be i n g raped a nd please help him. A n d they were, y ou know, have [ sic] a part y at his ex p ense. . . .

He b elieved he had b een raped. He believed somebody took their penis out o f their p ants and attempted to ins e r t it in his

m o u t h

. A nd that’s as close to – my brother

was a virg in. H e – 3 6 y ears old, never t o uched another w oman. T his was very , I ’ m sure, frig h tening for him.

I n response to the motion in limine, W ag ner made the

same a rg ument she m a k e s now. She arg ued that her
statements were

not being o f

fered to prove t h e d e tails of the i ncident at the jail. Her testimony is not t o prove an actual ra pe, b u t instead to show her brother’s stat e of mind f ollowing his incarceration. H er testimony establish[ e s] the impact that the even t h a d on E ric. Yvon can testify as to the statements he made, his tone

o f voice, and his state of mind in mak i n g them.

F ederal Rule of Evidence 803(3) ex cepts fro m the
g eneral ex clusion of hearsay “statement[ s] of the declarant’s then-ex isting state of mind (such as motive, intent, o r plan) o r

e motional, sensory , o r phy sical condition (such as m e n t al feeling

, pain, or bodily health), but not including a statementW A G N E R V

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of memory or belief to prove the fact rememb e r e d o r believed[

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

I n disputably

, W ag ner could have testified at trial ab o u t the impact the jail incident had on Vog el, his mood following the incident, h ow disturbed h e seemed

, a n d even what he thoug ht happened to h im during the incident, all without putting inadm issible hearsay before the jury

. None of this testimony would have been p ut f o rth in order to establish the truth of what he had said. W ag n er proposed to testify about how ex tremely delusional Vog el was f ollowing the incident, and more importantly

, the emotional impact the incident h ad

on him, including how hu m i l i a ted he now f elt by the pink underwe a r

. S h e was not asserting the truth of any thing that Vog el said had happened to him in jail.

Her testim o ny was admissible not to prove “the fact remembered or believed” but the “mental feeling ” of Vog e l. As our dissenting colleag ue points out, the limiting lang uag e of Rule 803(3) b ars “ ‘ statements as t o w h y [ the declarant] held the particular state of mind, or w hat he mi gh t 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 underly in g t h e m e mory or b elief. I n Emmert
, for ex ample, the defen d ant soug ht to introduce his out-of-court statement that “he was scared becau s e o f the threats made by

the ag e nts.” 829 F .2d at 810.W A G N E R V

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Here, Vog el’s statements to h i s sister were offered to establish his state of mind, n ot that he w as raped o r that he

w e n t throug h the dress-out procedure. The statements we r e of f e r e d t o show his state of mind at the time of the

c o n v e r s a t i o n , t h u s s a t i s f y i n g a n y c o n t e m p o r a n e i t y requirement. S

ee United States v. Ponticelli

, 622 F. 2 d 985, 991 (9th Cir. 1 980), overr u l e d o n o ther grounds b y United States v

. De Bright

, 730 F .2d 1255, 1259 (9th Cir. 1984) (en banc). That Vog e l w a s subjected to the dress-out was established b y the testimony of the defendants’ e mploy ees. The jury could infer the connection between the dress-out a nd Vog el’s mental state. E x clusion of this evi d e nce was

erroneous.

The defense arg ument that W ag ner lacked per s o n al knowledg e is mistaken. She had personal knowledg e of h ow V o ge l had been impacted by the incident. She testified a s a percipient of what she had observed.

The court curtailed Yvon W ag ner’s testimony further b y not permitting her to testify to Vog el’s conversation with her where he g ave his sense of humiliation at b eing f o rced to

wear pink underwear or his sense o f having been subjected to

a rape. The court banned any testimony men t i o ning “rape”

or “g a ng rape” unless counsel showed that the terms were not “unduly prejudicial.” As a lready noted, the court ex cluded reference to the color of the clothes put on Vog el unless there was credible evidence that “Vog el was aware of the color of the jail-issued underwear.”

The ru l i ng s as to “rape” and “g ang rape” misconceived
any testimony W ag ner would have offered. She would have used the words to show h er brother’s present state of mind, not his past ex perience.W A G N E R V

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As to testimony o f Vog e l’s perception of the c o l o r, W a g n er’s testimony was to the c urrent state of her brother’s mind when he spok e t o her. H is mind was focused on the implications of being dressed in pink. That he ha d been dressed in pink was n ot a delusion. I t was a fact, e ssential to his ex perience and to the Estate’s d eliberate indifference a nd due process claims. The jury was asked to evaluate whether the jail’ s m e a s ures were taken in furtherance of a leg itimate
g oal or whether they were, instead, p u n i tive. The ex clusion of any menti o n o f “pink u nderwear” or “rape” delivered a second blow to the plaintiff’s case.

T h at V og el w as delusional d oes not mean that he w a s incapable of seeing

. I f y ou pricked him, he bled. A s h is ey e s

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 Vog el, an impact apparent from hi s conversation with his sister.

Exclusion o f ref

erences to the color pink. On remand the plaintiff may prevail o n the proposition that for the jail to apply the dress-out in p ink procedure automatically to a man its own staff had identified a s in need of psy chiatric treatment

was in deliberate indi f

f e r e n ce to his serious medical needs. B ecause of the evidentiary ruling s of the trial court, the issue was not properly

presented to the jury

.

I n a dditio n , t hese ruling s deprived the plaintiff of any foundation for medical testimony as to the probable cause o f Vog el’s death. W e do not reach the admissibility o f the medical testimony because as the case developed un d er the district court’s ruling s, the testimony lacked all foundation.W A G N E R V

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Argum e nt to the J u r y . The district court abruptly eliminated the plaintiff’s opportunity for rebuttal arg ument. No g ood r eason was g iven for this disappointment of the pl a i ntiff’s leg itimate ex pectation. I f the court intends to restrict r ebuttal, the litig ants should be so advised p rior to the
arg ument.

Counsel for the county sug g ested that Vog el’s f amily h ad
not provi d ed adequate care for Eric V og el. The arg ument was irrelevant and improper.

F or the reasons stated, the judg ment of the di s t rict court i s REVERSED and the case is REMANDED f o r proceeding s in accordance with this o pinion.

N.R. SMI TH, Circuit J udg e , dissenting :

They say “the third time’s the c h arm.” 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 F ederal Rules of E v idence, noncontemporaneous hearsay testimony used t o prove a declarant’s memories, b eliefs, and the cause o f an underly ing state of mind is now admissible. Making matters worse, the majority a llows such testimony absent a foundation o f personal knowledg e. I n its opinion, the majority reverses the district court o n issues that have been waived and are not properly before the panel, f a i ls to correctly c onstrue the hearsay rule and fails to give the proper deference to the district court’s other e v i dentiary ruling s. I must therefore dissent because:W A G N E R V

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1. Ass u m i n g ( b ut n ot deciding ) that a de novo standard of review applies whe n determining whether a statement is hearsay

, t h e majority f

ails to properly construe the hearsay rule. Under the hearsay r u l e, statements asserting a declarant’s beliefs a

r e hearsay

, if offered to p rove t h e declarant’s b elief or offered for a purpose that requires the declarant to believe the matters asserted are true. Therefore, the district court did n o t e rr in concluding that Yvon W a g n er’s testimony

was hearsay

.

2. The majority f

ails to apply the “substantially deferential” abuse of discretion test, r ec e n t l y elucidated b y

our en b anc panel in United States v

. H inkson

, 585 F .3d 1247, 1262 ( 9th Cir. 2009) ( en banc), for the remaining evidentiary issues a ppealed here. Thoug h an appellate j u r i st may have ruled differently on these issues, “we may not simply substitute our view for that of the district court, but rather must g ive the district court’s finding s deference.” Id.

I.

STANDARD OF REVIEW

This circuit’s case law is not entirely clear reg arding whether we review de novo a district c o urt’s decision that a statement is or is not hearsay

. Compare Unit e d States v

. Stinson , 647 F .3d 1196, 1210 (9th Cir. 2011) (“W e review a district court’s evidentiary ruling s for abuse of discretion.”), and U nited St ates v. Tran
, 568 F .3d 1156, 1162 (9th Cir. 2009) (applying an a

buse of d iscretion standard in determining whether a statement is h earsay under Rule 801),

w ith Mahone v. Lehman

, 347 F .3d 1 170, 1173–74 ( 9th C i r. 2003) (“W e review the district court’s construction of the hearsay rule de novo

. . . .” ( quoting Orr v. Bank of Am., NTW A G N E R V

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& SA
, 285 F .3d 7 64, 778 (9th Cir. 200 2 ) ) )

, U n ited S tates v

. Collicott

, 92 F .3d 9 73, 978–82 (9th Cir. 1996) (holding that the district court er r e d

, b e cause the statements at issue were hearsay a nd not admissi b l e u nder Rule 801(d)(1)(B ), never

m entioning w hether the district court abused its discreti o n , but rather seems to have reviewed the hearsay determination de novo), and United States v. W arren , 2 5 F

. 3d 890, 894–95 (9th Cir. 1994) ( held that the statements a t issue were admissible under Rule 801(d)(2)(A) b ecause they were not hearsay , with no mention of an abuse of discretion).

The Second Circuit and Six th Circuit have he ld that a district court’s determination whether a statement is hearsay is reviewed de novo. U

nited S tates. v. Ferg u s o n , 653 F .3d 61, 86 (2d Cir. 2 0 11); B iegas v. Q u i c k w a y Carriers, Inc.
, 573 F .3d 365, 378–81 ( 6 th Cir. 2 0 0 9 )

. But see Trepel v

. Roadway Exp., Inc.
, 194 F .3d 708, 7 1 6

– 17 (6th Cir. 1 999) (“Therefore, in disreg ard of o ur her etofore well-settled precedent that hearsay evidentiary ruling s are r eviewed de
novo, we shall review the district court’s ruling for an abuse of discretion.” (citation omitted)).

W e review the district court’s remaining evidentiary ruling s for abuse of discre t i o n. Gen. E lec. Co. v. Joiner
, 5 2 2 U. S. 136, 141 (1997). W e d o not reverse evidentiary ruli n gs unless the ruling s a re “manifestly erroneous and prejudi c i a l .” Orr
, 285 F .3d at 773. “This includes the

ex c l u s i o n o f evidence under a hearsay r ule.” Stinson
, 647 F

. 3d a t 1 210. W e also review the d istrict court’s handling of closing a

r g uments for an abuse of dis c r e t i on. United States v. Lazarenko

, 564 F .3d 1026, 1043 (9 t h C i r. 2009).W A G N E R V

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Our circuit employ s a “sig nificantly d eferential” two-step test to determine whether a district court a bused its discretion. Hinkson

, 5 85 F .3d at 1262. The first step “is to determine de

novo whether the trial c ourt identified the correct leg al rule to apply to the r e l i e f r e q u ested.” Id. I f so, the second step “ is
to determine whether the trial c ourt’s application of the
correct leg al standard was (1) ‘illog ical,’ (2) ‘implausible,’ o r (3) without ‘support in inferences that may be drawn from the facts in t h e record.’” Id. (quoting Anderson v. City of Bessemer City, N.C.
, 470 U.S. 564, 577 (1985)). “I f any o f these three apply

, only the n are we able to have a ‘definite and firm conviction’ that the district court reached a

c o nclusion that was a ‘mistake’ or was not among i t s ‘permissible’ options, and thus that it abused its discretion b y

m aking a clearly erroneous finding of fact.” Id. I n o t h e r words, “we do not a

utomatically reverse a d i s t r ict court’s factual finding if we decide a ‘mistake has been committed.’” Id. at 1263.

II.

WAG NER’S TESTIMONY

The majority first concludes that the district court erred by ex c luding testimony from Vog el’s sister, Yvon W ag ner, reg arding statements made by Vog el ( who was d eceased before trial). 1 Wag ner w ould have testified reg arding Vog e l’s

1 Wag n er w ou ld h av e testif ied th at Vo g el (1 ) said th e d eten tio n o f f icers d ressed h im in “ p in k u n d erw ear, in p in k slip p ers an d

, ag ain

, at h i s ex p en s e th ey w ere acco stin g h im ” d u rin g th e d ress- ou t p ro ced u re; (2 ) b eliev ed h e h ad b een rap ed ; (3 ) “ f

elt o n e o f th e o f f icers attem

p ted to p u t

h i s p en is inW A G N E R V

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thoug hts and beliefs during the dress-out procedure based on statements Vog el purportedly made—after the fact—to W a gn er. The majority finds that the district court err ed

, apparently as a matter of law, no matter w hether the standard

o f review is de novo or abuse of discretion. The maj o r i t y erroneously concludes that W a g ner’s testimo n y w as not offered to prove what Vog el asserted.

A. Wagner’s testim ony w as hearsay evidence

The Estate arg u e s that W a g ner’s testimony was not hearsay

, because it was n o t o f fered to prove the details of the dress-out procedure (i.e., that Vog el was act ually raped). I nstead, the Estate arg ues that Wag ner’s testimony was offered to show Vog el’s state of mind following the dress-out procedure and the lasting i m p a ct the event h ad on Vog el following h is release. The majority asserts that W ag n e r “was
not asserting the truth of any thing t h a t Vog el said h ad happened to him in jail.” Maj. Op at 1 1

. I d i sag ree with both. Wag ner’s testimony w as offered t o p r o v e the truth o f the matter asserted—i.e., that Vog e l b e l ieved the events he described happened. The district c ourt did not incorrectly construe or apply

the hearsay

rule.

H earsay “is a statement, other than one made by th e d e c l ar ant while testify ing at the trial or hearing

, offered in

e v i d e nce to prove the truth o f the matter asserted.” F ed. R

. Evid. 8 0 1 ( c ). The majority ag r ees that, if Wag ner’s testimony

— i n cluding Vog el’s statements that ( 1) h e was

h is m ou th an d t

h at h e h ad to k eep h is m o u t h s o t i g h t t h at h e b ru ised h is

o u ter l ip s to av oid b ein g acco sted th at w ay ,” an d (4 ) b eliev ed th e o f f icers

u sed th e p in k u n d erw ear t o p u t h im i n a v u ln erab le p o sitio n b ef o re a p lan n ed sex “ p arty .”W A G N E R V

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forcibly undresse d by detention officers, (2) he w as dressed in pink underwear and slippers, (3) the officers “manhandled” him on the floor of his jail c e ll, a nd (4) he called out to other inmates for help—were o ffered for the truth of the matter asserted, it would be hearsay . Even if this information were consistent with o ther evidence in this c ase, it coul d n ot be proven by W ag ner using hearsay

evidence.

However, the Estate and the majority assert that Wag ner’s
t e stimony is n ot offered to prove the “truth of any thing t h at Vog el said had h appened to him i n j a i l

. ” Maj. Op. at 11. That assertion may be true, but it is n ot f ocused on Wag ner’s
statements. F or e x ample, Wag ner testified that Vog e l (1) “ felt he wa s being raped,” (2) “ felt one o f the officers attempted to put his penis in his mouth,” (3) “ believed he was being raped,” and (4) “ believed the pink underwear w as used
to put him in [ a] vulnerable p osition with these o f f i cers.” W a g n er’s testimony is o ffered to pro v e t he truth of what Vog el a sserted—i.e., that he believed what he described occurred. A statement is hearsay if o ffered to prove the truth of the matter asserted

. F ocusing on W agn e r ’ s statements, they are hearsay

, because they were offered to s h o w that Vog el actually believed the fa c t s asserted. 3 0B Michael H

. G r a h am, Federal Practice & P rocedure § 7044 (interim ed

. 2000) (ex plaining that s e cond-hand statements of belief a re hearsay

, but may be admissible under Rule 8 0 3 (3)’s

ex c e pti o n t o t he hearsay r ule). F urther, the statements a re hearsay

, because it must be pr o v en that Vog el believed the
matters asser t e d were true for the Estate’s mental state arg ument to succ e e d

. Id. § 7006 (“I f the declarant must believ e the matter asserted to be true for any inference to log ically f low,

. . . the h earsay risks o f sincerity and narration

are present. Such statements a re thus properly classified a s hearsay

. ”). The Estate never made an offer of proof toW A G N E R V

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d e monstrate that the proffered testimony complied with th e hearsay r u le

. Therefore, the district court’s determination (that W ag ner’s testimony was hearsay ) was not erroneous a

nd the district court did not misconstrue the hearsay rule.

B. Wagner’ s testim ony did not f all under Rule 803(3)’s then-existing state of m ind e x c e ption to the hearsay rule

The Estate arg

ues that, even if W ag ner’s testimony were hearsay

, it was admissible as evidence under the state of mind

ex c e ption in F ederal Rule of Evidence 803(3). The majority

a gr e e s

. However, the district court disag reed and, because this is a discretionary deci s i o n , w e must afford the district court’s decision substantial deference. Here, the dis t r i ct court’s determination that W a gner’s testimony reg arding Vog el’s post-release statements d i d not fall under Rule 803(3)’s s t a t e of mind ex ception was not illog ical, implausible, or w ithout support in inf e r e n c e s that may be drawn from the facts in the r e c ord. The statements (1) were statements of memory

or belief made at least one week after th e e v e n ts at issue; a

nd (2) were offered not simply to demonstrate Vog el’s present mental conditi on but his past mental condition (i.e., that he wa s ag itated), and also to

ex p lain why he was ag itated (i.e.

, t h a t h e believed he was being raped). Therefore, althoug h we may have decided this issue d ifferently

, the district court did not abuse its discretion.

Rule 803(3) c r e ates a

n ex c eption to the hearsay rule for “[ a] statement of the declarant’s then ex isting state of mind, emotion, sensation, or phy s i c a l condition (such as intent, plan, motive, desig n, mental feeling

, pain, and bodily health), but not including a statement of memory o r belief to prove the fact remembered or belie v e d

. . . .” F ed. R. Evid. 803(3)W A G N E R V

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(2010) (emphasis added). Vog el’s stateme n ts do not meet R u l e 8 0 3 ( 3 ) ’ s f o u n d a t i o n a l r e q u i r e m e n t s o f “contemporaneousness, [ lack of] c h ance for reflection, a n d relevance.” U

nited S tates v

. P onticelli

, 622 F .2d 985, 991 (9th Cir. 1980), overruled o n other grounds by United States

v. D e Bright

, 730 F .2d 1255, 1259 (9th Cir. 1984) (en banc). V o ge l ex plained the dress out procedure to his famil y following his release from jail, which was at least seven day s after the procedure took place. T h es e were “statement[ s] o f
memory ,” which are e x pressly prohibited under Rule 803(3). The Rules o f E vidence ex clude statements o f memory , because “ [ t] he more time that elapses between the declaration and the period about which the declarant is c ommenting

, the less reliable is his statement

. . . . The state of mind declaration also has probative value, because the d ecl a ra n t presumably has no chance for r eflec t i o n a nd therefore for misrepresentation.” Ponticelli

, 6 2 2 F .2d at 991. Vog el conceivably could have misrepresented what happened at the jail (or what he believed happened) to ex plain or just i f y his unruly conduct with the officers. Thus

, althoug h detention officers’ testimony about what V og e l said during the dressout procedure is admissible (g iven its contempor a n e ity ), Vog el’s statements a w e e k or two after the fact do not provide the sa m e p robative value contemplated by the

ex c e ption in Rule 803(3). S ee United States v. Miller

, 874 F .2d 1255, 1265 (9th Cir. 1989) ( holding t h a t 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

, W ag ner’s statements w ere offered to show
not o nly tha t V o gel was ag itated during the dress-out procedure, but also w h

y he was ag itated. Such use o f W a g n er’s statements is n o t p e r mitted under Rule 803(3), a sW A G N E R V

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i n t e rp r eted by our circuit. W e stated in United States v. Emmert that “the state-of-mind ex ception does not permit the witness to relate any of the declarant’s sta t e m en ts as to why he held the particular state o f mind, or what he might have believed that w o u ld have induced the state o f mind.” 829 F .2d 805, 810 (9th Cir. 1 9 87) ( emphasis added) (quoting United States v

. Cohen

, 631 F .2d 1223, 1225 (5th Cir. 1 980)); see also id. ( “[ Rule 803(3)] . . . narrowly limit[ s] admissible
statement s to declarations of condition—‘I ’m scared’—and
not belief —‘I ’m scared because [someone] threatened me.’” (emphas i s a l tered) (internal quotation marks omitted)). W e reaffirmed the validity of Emmert in United S tates v

. Fontenot by holding that hearsay statements did n ot fall under the ex ception in Rule 803(3), because the statements r elated why the d e cl a r a nt held the particular state of mind. United States v. Fontenot , 14 F .3d 1364, 1371 (9th Cir. 1994). The Fi f th Circuit and Tenth Circuit also do not allow stateme n t s that identify why the declarant has the parti c u l a r state o f mind. See, e.g. , United States v. Lin
, 960 F .2d 4 4 9, 452 (5th C i r. 1992) (holding that “[ e] vidence of

. . . f e ar was admitted,” but “[ p] r operly ex cluded were the a lleg ed reasons for that fear” (citing Cohen

, 631 F .2d at 1 225)); United States

v. Ledf o r d

, 443 F .3d 7 02, 709–10 (10th Cir. 2005) (“The phrase ‘ because the defendant threatened me ’ i s ex pressly outside the state-of-min d ex ception because the ex planation for the fear ex presses a belief d ifferent 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 underly ing the memory

or belief.” Maj. Op. at 1 1. Howev er , in Emmert and Fontenot
, we did

no t indicate that our decisions hing ed on the declarant offering the r easons f

or the belief in o rder to p rove the eventsW A G N E R V

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believed. Rather, our decisions identi f i e d the reason for the

ex c lusion to be that the “testimony would have fallen within the ‘be l i ef categ o ry a

nd would not h ave been limited to [ the declarant’s] current state of mind.” Emmert
, 829 F .2d at 810;

see a lso Font e n o t , 14 F .3d a t 1371 (noting that “the
statements would have demonstrated that [ Fontenot ] b elieved his and Cathy F ontenot’s lives were in dang er” (alterations in orig inal)).

Here, W ag ner intended to testify that Vog e l was ag itated, because he believed he was being raped and the officers were dressing him in pink underwear for a sex par t y

. T his testimony was central to the Estate’s theory of causation that Vog el’s t raumatic ex perience in jail caused his fatal arrhy thmia several weeks later. F or these reasons, and in lig ht of our case law, the district court’s a p p l i c a tion o f Rule 803(3) to the facts of this case was not illog ical, implausible, or without support in inferences that may be drawn from the facts in the r ecord. The district court did not a buse its discretion.

C. Wagner’s testim ony lacked f oundation

The majority also determines that the district court abused i t s d iscretion in concluding that W ag n er lacked personal knowledg e ab o u t Vog e l’s mental condition during the jailhouse dress-ou t p rocedure. H owever, the majority ag ain fails to g ive any deference to the d istrict court’s d ec i s ion. F ederal Rule of Evidence 6 02 provides that a “wi t n es s may not testify to a matter unless evidence is introduced sufficient
to support a finding that the w itness has personal knowledge

o f the matter

. Evidence to prove personal knowledge m a y , but n eed not, consist of the witness’ own testimony

. ” (emphasis added). The majority claims W ag ner had adequateW A G N E R V

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foundation, because she had personal knowledg e of h er conversation with Vog el and perceived his em o tions. The majority claims Vog el’s statement’s went to establish his
state of min d a t the time he spoke to his sister. Maj. O p. at 12. I f Wag ner’s testimony were on l y offered to prove V o g el’s temperament during his conversation with W ag ner, the majority

would be correct.

However, W ag ner intended to offer var i o u s o p inions
reg arding Vo ge l ’ s state of mind while in jail and why he reacted the way he did during the dress-out procedure

. F o r

ex a mple, W a g ner, testified that (1) Vog el “bel i eved he was being raped,” (2) Vogel “believed the pink underwear was used to put him in [ a] vulnerable position,” ( 3 ) V og el hid under his bed to protect h imself because he w a s “paranoid” and “felt he was in ex treme harm’s way ,” a n d ( 4 ) “this was very , I ’m sure, frig htening for him.” The Estate’s entire
t h e ory of liability turns on the purportedly indelible trauma Vog el endured during h is stay at the county jail. Thus, there is no doubt that W ag ner offered this testimony to prove what Vog el felt a

nd believed while he was in jail—not how he felt

as he d escribed the jailhouse inc ident a week later. To be
sure, the County objected to W ag ner’s testimony

, not because W a g n er f

aile d t o establish that she actually had a conversation with Vog el, but because Wag ner lacked foundation to testify about the thoug h ts and beliefs o f her floridly psy chotic brother during the jailhouse incident. F o r these r easons, we cannot conclude that the dist r i c t court abused its d i s c r e tion in ex cluding this testimony

, in part, because of lack of foundation. I ts determination w a s n o t illog ical, implausible, o r with o u t s upport in inferences that
may be drawn from the facts in the record.W A G N E R V

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III.

EXCLUDING

REF ERENCES TO P INK UNDERWEAR

The Estate failed to specifically and distinctly arg ue in its
ope n i n g brief that the district court erred in ex cluding evidence related to pink un d erwear. Therefore, we should consider such an arg ument waived, and we should not address it. See Kim v. Kang
, 154 F .3 d 9 9 6
, 1000 (9th Cir. 1998). W h ile the Estate mentions the issue in its statement of issues and summary of the arg u ment sections of its op e n ing brief,
t h e Estate fails to discuss a nd arg ue the point in the b o d y o f the arg uments 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 re f e r r e d t o in the appellant’s statement of the case but not d iscussed in the body of the opening brief is deemed waived.”).

IV.

CLOSING ARG UMENT

L a stly

, the majority hastily concluded that the distri ct court abused its d iscretion by deny ing the Estate a rebuttal closing a rg ument at tr ial. However, the majority never

ex p lains what law g ives a plaintiff in the District of Ariz o na an inalienable rig ht to r ebuttal arg u ment, much less how the district c ourt abused its discretion i n s h aping closing
arg uments under D istrict of Ariz ona L ocal Rule 39.1(d). Rule 39.1(d) g uarantees a “rig ht to close” to the party b earing the burden of proof, but that rule has nev e r b e en defined to p r o v i d e the rig ht to speak last

. The d istrict court permitte d the Estate to make a “thoroug h,” 60-minute closing arg ument.W A G N E R V

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F ollowing a short recess, the court ex plained to counsel that “[ t] he closing is g oing to end with [ the County ] . There isn’t
g oing to be any rebuttal. I just did a litt l e r e s e ar c h, it’s di s c r e t ionary

. [ The Estate] h ad a thoroug h, complete effort
at it, and [ the County ] is entitled to t h a t a s w e l l. B u t we’re not g oing to have a rebuttal.” The court also noted, “I don’t think there was any

thing that [ the Estate] could have touched on that [ the Estate] didn’t ex plore, several times.”

I t is well estab l i s hed that a “trial court h a s broad discretion in controlling c l o s ing arg uments.” United States

v

. Spillone

, 879 F .2d 514, 518 ( 9th Cir. 1989); acco r d Fernandez v

. Corporac i o n Insula De Seguros
, 79 F .3d 207, 209–10 (1st Cir. 1996) (“The d ecision to permit r e buttal [ in

a civil action] is a p r ocedural matter which rests within the sound discretion of the trial j u d ge and rarely (if ever) provides fertile g round for appe a l .” (internal citation omitted)). B ecause the E state closed wi t h a 6 0-minute
arg ument pursuant to Rule 39.1(d), the district court d id not abuse its “broad” d iscretion in deny ing the Est a t e a rebuttal closing arg ument.

I would therefore affirm.