NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

RICHARD DEAN JOHNSON; LORI 

JOHNSON, 

Plaintiffs-Appellants, 

 v. 

FABIAN VELAZQUEZ, in his official and 

individual capacities, 

Defendant-Appellee, 

and 

CITY OF ATWATER; et al., 

Defendants.

No. 19-15394 

D.C. No. 

1:16-cv-01636-AWI-SAB 

MEMORANDUM*

Appeal from the United States District Court

for the Eastern District of California

Anthony W. Ishii, District Judge, Presiding

Submitted February 7, 2020**

San Francisco, California

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

FEB 19 2020

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 

Before: PAEZ and BEA, Circuit Judges, and ADELMAN,*** District Judge.

Plaintiffs-Appellants Richard and Lori Johnson appeal the district court’s 

judgment following a jury verdict in favor of Defendant-Appellee Fabian 

Velazquez. Appellants contend the district court abused its discretion in excluding 

under Federal Rule of Evidence 403, a Statement of Decision (“Decision”) issued 

by an Administrative Law Officer. We review a district court’s decision to 

exclude evidence for abuse of discretion. See United States v. Plancarte–Alvarez, 

366 F.3d 1058, 1062 (9th Cir. 2004); see also United States v. Hinkson, 585 F.3d 

1247, 1262 (9th Cir. 2009) (en banc) (articulating the abuse-of-discretion 

standard). And “[s]uch rulings will be reversed only if the error more likely than 

not affected the verdict.” United States v. Liu, 538 F.3d 1078, 1085 (9th Cir. 

2008).

The district court did not abuse its discretion in excluding the Decision. The 

record reflects that the district court carefully assessed that the Decision was 

relevant to whether Velazquez committed a post-Decision Bane Act violation with 

malicious intent, a finding which could have supported punitive damages at trial. 

The district court then reasonably concluded that the Decision’s probative value—

in tending to make the fact that Velazquez committed a post-Decision Bane Act

*** The Honorable Lynn S. Adelman, United States District Judge for the 

Eastern District of Wisconsin, sitting by designation.
3 

violation with malicious intent more probable—was substantially outweighed by 

the dangers that admission of the Decision into evidence (1) might confuse the 

issues in this case to be about the constitutionality of the municipal code sections 

discussed in the Decision, and (2) could cause the jury to give undue weight to the 

Decision as proof that pre-Decision conduct was unconstitutional and impute 

malicious intent to Velazquez.

Even if the district court abused its discretion in excluding the Decision, that 

error would not warrant reversal because it could not have “more likely than not 

affected the verdict.” Liu, 538 F.3d at 1085. As noted above, the Decision’s 

purported relevance was that if Velazquez committed a Bane Act violation after he 

knew about the Decision, then the Decision would have had a tendency to make it 

more probable that Velazquez committed such a post-Decision Bane Act violation 

with the requisite malicious intent to support punitive damages. But the jury found 

no Bane Act violation, without which the jury had no occasion to consider the 

secondary question of whether punitive damages were warranted. Because the 

Decision was not relevant to any aspect of the jury’s verdict, the Decision’s 

exclusion could not have affected the verdict. 

AFFIRMED.