Yvon Wagner v. County of Maricopa, et al

Filing

FILED OPINION (JOHN T. NOONAN, N. RANDY SMITH and FREDERIC BLOCK) REVERSED AND REMANDED. Judge: JTN Authoring, FILED AND ENTERED JUDGMENT. [8093390]

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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
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 March 7, 2012
Before: John T. Noonan and N. Randy Smith,
Circuit Judges, and Frederic Block, Senior District Judge.*
Opinion by Judge Noonan;
Dissent by Judge N.R. Smith

*The Honorable Frederic Block, Senior District Judge for the U.S. District Court for Eastern New York, Brooklyn, sitting by designation.

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WAGNER v. COUNTY OF MARICOPA

COUNSEL
John M. Curtain, Phoenix, Arizona, for the plaintiff-appellant.
Eileen D. Gilbride, Phoenix, Arizona, for the defendantsappellees.

OPINION
NOONAN, Circuit Judge:
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

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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 tapes 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.
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

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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.”
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. He was told
that there was a warrant for his arrest for spitting on an officer
during the dress-out, so he might be returned to jail. Hearing
that the police were coming, he ran four or five miles from the
car. He died the next day. The cause, according to the Maricopa County Medical Examiner, was acute cardiac arrhythmia.
PROCEEDINGS
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

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of 42 U.S.C. § 1983 by subjecting Vogel to an unreasonable
search and seizure and denying due process and the equal protection of the laws. 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.” 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

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conclusions would be the same under either standard. We
begin with the ruling limiting the testimony of Yvon Wagner.
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.
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.
[1] Federal Rule of Evidence 803(3) excepts from the hearsay rule “statement[s] of the declarant’s then-existing state of

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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 of memory or belief to
prove the fact remembered or believed[.]”
[2] Indisputably, Wagner could have testified at trial about
the impact the jail incident had on Vogel, how his mood was
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.
[3] Her testimony was admissible not to prove “the fact
remembered or believed” but the “mental feeling” of Vogel.
We have, as our dissenting colleague points out, stated that
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)). But our application of that language makes
clear that 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. Emmert was
also interested in proving the underlying facts: that “the government agents [were] intimidating individuals who represented themselves as members of a Detroit Mafia crime
family.” Id. at 808.
[4] Here, Vogel’s statements to his sister were offered to
establish his state of mind, not that he was raped — which

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was undisputedly false — or that he went through the dressout procedure — which was undisputedly true. Moreover,
they 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). Exclusion of this evidence was erroneous and fatally prejudicial.
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.”
[5] 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.
[6] 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. But what was essential to
the plaintiff’s case was Wagner’s testimony that the shock
and humiliation of the “dress-out” in pink was preying on his
mind. The court’s suppression of any reference to pink under-

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wear was an abuse of discretion. The ruling delivered a second blow to the plaintiff’s case.
When a color of such symbolic significance is selected for
jail underwear, it is difficult to believe that the choice of color
was random. The County offers no penalogical reason, indeed
no explanation whatsoever for its jail’s odd choice. Given the
cultural context, it is a fair inference that the color is chosen
to symbolize a loss of masculine identity and power, to stigmatize the male prisoners as feminine.
That Vogel was delusional does not mean that he was incapable of seeing. If you pricked him, he bled. Just as his eyes
saw the pink, so his mind made the association of the color.
So at least a jury could infer from the impact of the dress-out
on Vogel apparent from his conversation with his sister.
Medical experts. Wagner presented Daniel Spitz, the chief
medical examiner of Macomb County, Michigan, a county
embracing southern Detroit. In his deposition Spitz had stated
that he had conducted thousands of autopsies; that he had
examined three to five cases where schizophrenia in relation
to cardiac arrhythmia was the cause of death; and that there
was forensic and psychiatric literature on the connection
between schizophrenia and cardiac arrhythmia. He gave the
opinion that the sudden and unexpected death of Vogel was
due to cardiac arrhythmia intensified by an increase in schizophrenia and that that increase in schizophrenia was “likely”
due to Vogel’s recollection of his treatment at the jail and his
fear of returning to it.
The district court held that he failed to meet the qualifications for an expert set by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993). His testimony was
excluded entirely.
The defense does not deny the foundation of Spitz’s opinion. Its Reply Brief states: “No one disputes the general prop-

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osition that persons with severe schizophrenia have an
increased incidence of the kind of arrhythmia that killed
Vogel. Everyone agrees that Vogel’s underlying mental illness was the factor that induced the cardiac arrhythmia.” The
defendants deny that anyone could determine what caused the
particular increase in the arrhythmia that killed Vogel.
[7] The purpose of expert testimony is to “assist the trier
of fact to understand the evidence or to determine a fact in
issue” by providing opinions on “scientific, technical, or other
specialized knowledge[.]” Fed. R. Evid. 702 (2008). To guard
against the risk that jurors will accept an expert’s testimony
simply because he or she is an expert, a district court must
ensure that all expert testimony is “not only relevant, but reliable.” Daubert, 509 U.S. at 589 (1993); see also Kumho Tire
Co., Ltd. v. Carmichael, 526 U.S. 137, 147 (1999) (holding
that Daubert applies to “all expert testimony”). The test for
reliability is flexible and depends on the discipline involved.
See Kumho, 526 U.S. at 150. “[T]he law grants a district court
the same broad latitude when it decides how to determine reliability as it enjoys in respect to its ultimate reliability determination.” Id. at 142.
[8] The district court’s decision to exclude Dr. Spitz’s
opinion that the dress-out procedure was “probably” the cause
of Vogel’s death was a reasonable application of Daubert.
The opinion was not supported by the typical Daubert factors
—testing, peer review and general acceptance. Dr. Spitz did
not explain, for example, how the generally accepted facts (1)
that the incidence of cardiac arrhythmia is disproportionately
high among schizophrenics and (2) that stress can render the
condition fatal allowed him to determine the specific event
that triggered Vogel’s death. Nor did he explain how having
seen four or five cases of fatal cardiac arrhythmia in schizophrenics helped him reach his conclusion.
Generally accepted facts and experience might lead a medical expert to reliably opine (as Dr. Ehrlich did) that the dress-

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out procedure could have been a triggering stressor. Although
Dr. Spitz’s and Dr. Ehrlich’s opinions are similar in that
respect, Dr. Spitz went farther and offered an opinion as to an
actual cause. It is this leap that dispositively distinguishes the
two experts.
The plaintiff also offered the testimony of Phillip Esplin, a
Phoenix psychologist. Esplin had originally been proposed as
a witness by the County and had prepared a report as required
by Fed. R. Civ. P. 26(a)(2). Taking his deposition, Wagner
found his testimony favorable to her position and sought him
as a witness at trial. The district court permitted only the submittal of his report and excluded his live testimony.
In both of its rulings the district court pointed out the
dependence of the two proposed experts on Wagner’s
reported conversations with her brother. As the district court
excluded Wagner’s testimony as to the conversations, so it
found that the experts could not base their opinions upon
Wagner’s accounts.
[9] As we have already indicated, the exclusion of testimony showing Wagner’s state of mind was both error and
prejudicial to the plaintiff. It was equally error and prejudicial
to exclude the experts’ opinions based on that testimony.
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 engaged in argument suggesting
that the jury consider comparative fault. Comparative fault is
not a defense here.
Issues on remand. The parties have not raised the question
of whether the dress-out procedure is in every case a violation

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of due process when applied to persons convicted of no crime.
Unpleasant physical measures — e.g., a strip search — may
be necessary to secure the safety of an institution even though
they impinge on the dignity of innocent inmates. Bull v. City
and County of San Francisco, 595 F.3d 964 (9th Cir. 2010)
(en banc). As the Supreme Court has explained:
if a particular condition or restriction of pretrial
detention is reasonably related to a legitimate governmental objective, it does not, without more,
amount to “punishment.” Conversely, if a restriction
or condition is not reasonably related to a legitimate
goal—if it is arbitrary or purposeless—a court permissibly may infer that the purpose of the governmental action is punishment that may not
constitutionally be inflicted upon detainees qua
detainees.
Bell v. Wolfish, 441 U.S. 520, 539 (1979) (citations omitted).
Unexplained and undefended, the dress-out in pink appears to
be punishment without legal justification.
[10] It appears to us that this question is still open for
exploration at trial on remand. Alternatively, the plaintiff may
prevail on the narrower proposition that to apply this procedure automatically to a man known by his jailors to be in need
of psychiatric treatment was itself a violation of due process.
Because of the evidentiary rulings of the trial court neither
issue was presented to the jury.
REVERSED and REMANDED.

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N.R. SMITH, Circuit Judge, dissenting;
In its opinion, the majority 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:
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

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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 & 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, 378-381 (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).
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

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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
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.
1

Wagner would have testified that Vogel (1) said the detention officers
dressed him in “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
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.”

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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 2607. 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 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 2607.
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

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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 demonstrate that the proffered testimony complied
with the hearsay rule. Therefore, the district court’s determination (that Wagner’s testimony was 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 postrelease 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 men-

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tal 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)
(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 dress-out 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

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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 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
hearsay statements 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-ofmind 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 the bar applies only when the statements are offered to
prove the truth of the facts underlying the memory or belief.”
Maj. Op. at 2607. However, in Emmert and Fontenot, we did

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not indicate that our decisions hinged on the declarant offering the reasons for the belief in order to prove the events
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 foundation,
because she had personal knowledge of her conversation with
Vogel and perceived his emotions. The majority claims
Vogel’s statements went to establish “his state of mind at the

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time of the conversation . . . .” Maj. Op. at 2608. 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.
III.
EXPERT TESTIMONY
A.

The district court did not abuse its discretion by
excluding Dr. Daniel Spitz’s expert testimony

Neither party disputed Dr. Spitz’s preliminary conclusions
that (1) Vogel’s death was caused by acute cardiac arrhyth-

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mia, and (2) people with severe schizophrenia have an
increased chance of dying from cardiac arrhythmia. The district court excluded Dr. Spitz’s testimony, because there was
no reliable scientific basis for his supplemental conclusion
that Vogel’s dress-out experience at the county jail caused his
cardiac arrhythmia three weeks later. The majority concludes
that the district court erred in excluding Dr. Daniel Spitz’s
testimony. I disagree.
Under Daubert v. Merrell Dow Pharmaceuticals, Inc., a
court must determine whether an expert is “proposing to testify to (1) scientific knowledge that (2) will assist the trier of
fact to understand or determine a fact in issue.” 509 U.S. 579,
592-93 (1993). This analysis “entails a preliminary assessment of whether the reasoning or methodology underlying the
testimony is scientifically valid and of whether that reasoning
or methodology properly can be applied to the facts in issue.”
Id. Among other things, a court should consider (1) whether
a theory or technique “can be (and has been) tested,” (2)
“whether the theory or technique has been subjected to peer
review and publication,” (3) “the known or potential rate of
error,” and (4) whether it is generally accepted in the scientific community. Id. at 593-94. After examining Dr. Spitz’s
deposition testimony, the district court determined that the
scientific theories underlying his proposed testimony did not
satisfy the standards in Daubert. The Estate failed to demonstrate that Dr. Spitz’s three-week-later causation theory (1)
could be or had been tested, (2) had been subjected to peer
review or publication, or (3) was generally accepted in the
scientific community. It was also unclear what evidence Dr.
Spitz considered when forming his opinion and whether he
considered all of the relevant evidence in the case.
In addition to the district court’s findings above, Dr. Spitz
admitted that he (1) did not interview any witnesses, (2) did
not consult any relevant treatises or literature, and (3) only
had experience investigating the deaths of possibly four or
five schizophrenics where the cause of death was acute

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arrhythmia. Dr. Spitz also based his opinion, in part, on statements from Vogel’s relatives (which the court deemed unreliable and inadmissible) and what he termed “common sense.”
Further, although Dr. Spitz testified that the dress-out procedure played a role in Vogel’s death, he could not explain why
other events—such as the car accident immediately preceding
Vogel’s death—had not caused acute arrhythmia earlier,
explaining that “[w]hy [Vogel] died when he did is something
probably nobody knows.”2
Plainly stated, Dr. Spitz’s general qualifications as a medical examiner do not provide him license to speculate regarding the environmental—as distinct from the medical—factors
that caused Vogel’s death. Dr. Spitz provided no scientific
theory or method that could substantiate his purportedly
“common sense” idea that the jailhouse dress-out procedure
three week earlier was the cause of Vogel’s heart arrhythmia.
Though Dr. Spitz could testify to the medical causes of
Vogel’s death, his speculation as to which of the many environmental stressors in Vogel’s life “likely” or “probably”
caused death did not meet Daubert’s threshold standard for
scientifically valid reasoning or methodology. Given the
many glaring deficiencies in Dr. Spitz’s proposed testimony,
the district court’s ruling cannot be an abuse of discretion.
2

Other experts concurred in this assessment. For example, when asked
about the possibility that the dress-out incident had some influence on the
arrhythmia, Dr. Ira Ehrlich responded, “Anything is possible. Of course
it’s possible.” When asked again whether Vogel may have been obsessing
about the jail incident when he died, Dr. Ehrlich explained, “He could
have. I would certainly not ever dismiss that as a possibility. I just don’t
see how anybody can point at that one incident and say that’s what did it;
in all likelihood, medical certainty, that’s what did it. I think that’s impossible.” Dr. Ehrlich also expressed serious doubts about anyone’s “ability
to say, with any degree of certainty, what was going on in Mr. Vogel’s
brain at the time that he developed his fatal arrythmia[.] . . . Mr. Vogel’s
brain is a salad bowl of stuff that has been tossed— unkindly perhaps, but
—tossed so that there is no organization there whatsoever.”

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The district court did not abuse its discretion by
excluding portions of Dr. Phillip Esplin’s expert
testimony

The majority concludes that the district court abused its discretion in excluding certain portions of the expert testimony
of Dr. Phillip Esplin. The district court determined that Dr.
Esplin’s testimony was (1) “[un]supported by evidence;” (2)
wholly “uncredible,” because, by Dr. Esplin’s own admission,
no one can know what a floridly psychotic person was thinking; (3) lacking foundation; (4) “more prejudicial than probative;” and (5) going to “puzzle” the jury. Given these
deficiencies, I cannot say the district court’s ruling was illogical, implausible, or without support in inferences that may be
drawn from the facts in the record.
The majority’s cursory treatment of the district court’s ruling on Dr. Esplin’s testimony never explains how the district
court applied an erroneous legal standard or relied on a clearly
erroneous finding of fact. No reliable evidence in the record—
apart from Wagner’s testimony—supported Dr. Esplin’s
claim that Vogel thought the pink coloring of the jail-issued
underwear was significant. Dr. Esplin himself admitted that
no one could know or understand what was going on inside
the mind of a floridly psychotic schizophrenic, suggesting
that, even with Wagner’s testimony, his testimony on causation would be purely speculative. Given these foundation and
methodological deficiencies, the district court acted within its
discretion to exclude this testimony under Federal Rules of
Evidence 702 and 703.
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

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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. 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.