                 FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


YVON WAGNER, as the personal               No. 10-15501
representative of the Estate of Eric
Vogel,                                       D.C. No.
                   Plaintiff-Appellant,   2:07-cv-00819-
                                               EHC
                  v.
                                           ORDER AND
COUNTY OF MARICOPA , a political            AMENDED
subdivision of the State of Arizona;         OPINION
JOSEPH M. ARPAIO , husband;
UNKNOWN ARPAIO , Named as Jane
Doe Arpaio - wife,
               Defendants-Appellees.


      Appeal from the United States District Court
               for the District of Arizona
     Earl H. Carroll, Senior District Judge, Presiding

                 Argued and Submitted
       April 15, 2011—San Francisco, California

                Filed November 16, 2012
               Amended February 13, 2013
2               WAGNER V . COUNTY OF MARICOPA

        Before: John T. Noonan and N. Randy Smith, Circuit
         Judges, and Frederic Block, Senior District Judge.*

                              Order;
                    Opinion by Judge Noonan;
                   Dissent by Judge N.R. Smith


                           SUMMARY**


                            Civil Rights

    The panel amended its prior opinion, reversed the district
court’s judgment, entered following a jury trial, and
remanded in an action brought by the Estate of Eric Vogel
asserting that jail officials were partially responsible for
Vogel’s death from acute cardiac arrhythmia following his
release from jail.

    The Estate alleged that County of Maricopa jail officers
subjected Vogel, who suffered from a mental illness, to an
unreasonable search and seizure while he was a pretrial
detainee. Prior to transferring Vogel into the jail’s
psychiatric unit, defendants subjected him to a “dress out,”
during which they forced him on the ground, stripped him of
all his clothes, and changed him into the jail outfit, which
included pink underwear. In the amended opinion, the panel


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

  **
     This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
             WAGNER V . COUNTY OF MARICOPA                      3

did not reach the admissibility of plaintiff’s expert medical
testimony because it determined that as the case developed
under the district court’s rulings, the testimony lacked all
foundation.

    The panel held that the district court erred by limiting the
testimony of Vogel’s sister at trial under the hearsay rule
because her statements were offered to establish Vogel’s state
of mind. The panel further held that the district court erred
by excluding references to the pink underwear, and that,
unexplained and undefended, the dress-out in pink appeared
to be punishment without legal justification. The panel held
that it appeared that this due process question was still open
for exploration at trial on remand. Alternatively, the panel
held that plaintiff may prevail on the narrower issue of
whether defendants were deliberately indifferent to Vogel’s
serious medical needs.

    Dissenting, Judge N. Smith stated that the majority failed
to correctly construe the hearsay rule and failed to give the
proper deference to the district court’s other evidentiary
rulings. In the amended dissent, Judge N. Smith also stated
that as a result of the majority’s errors, contrary to the Federal
Rules of Evidence, non-contemporaneous hearsay testimony
used to prove a declarant’s memories, beliefs, and the cause
of an underlying state of mind was now admissible.
4           WAGNER V . COUNTY OF MARICOPA

                         COUNSEL

John M. Curtin, Phoenix, Arizona, for Plaintiff-Appellant.

Eileen D. Gilbride, Phoenix, Arizona, for Defendants-
Appellees.


                          ORDER

    The opinion filed on November 16, 2012 is amended by
eliminating the following part of the opinion:

    At Slip opinion page 13356 at <Medical experts> through
to page 13359 ending immediately before <Argument to the
Jury.>

    Insert in its place the following paragraph:

    <In addition, these rulings deprived the plaintiff of any
foundation for medical testimony as to the probable cause of
Vogel’s death. We do not reach the admissibility of the
medical testimony because as the case developed under the
district court’s rulings, the testimony lacked all foundation.>

    The dissenting portion of the opinion filed on November
16, 2012 is amended by eliminating the following:

   At Slip opinion page 13359 delete <In its opinion, the
majority> and replace it with the following paragraph:

     <They say “the third time’s the charm.” Not so in what
is now the third revision of this opinion, wherein the majority
still fails to correct all of its errors. As a result of these
            WAGNER V . COUNTY OF MARICOPA                   5

errors, contrary to the Federal Rules of Evidence,
non-contemporaneous hearsay testimony used to prove a
declarant’s memories, beliefs, and the cause of an underlying
state of mind is now admissible. Making matters worse, the
majority allows such testimony absent a foundation of
personal knowledge. In its opinion, the majority reverses the
district court on issues that have been waived and are not
properly before the panel,>

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

   At Slip opinion page 13369 at <IV. EXPERT
TESTIMONY> through to page 13372 immediately before
<V. CLOSING ARGUMENT.>

   The section entitled <CLOSING ARGUMENT> should be
renumbered to roman numeral IV.

    In light of these amendments, any petition for panel
rehearing or rehearing en banc shall be filed within fourteen
days from the date of this order.



                         OPINION

NOONAN, Circuit Judge:

    The central figure in this case, Eric Vogel, suffered from
mental illness. Our system of laws is administered by
rational human beings. It has always been a challenge to the
legal system to interact with the irrational.
6            WAGNER V . COUNTY OF MARICOPA

    Yvon Wagner, as the personal representative of the estate
of her brother, Eric Vogel, appeals the judgment of the
district court in favor of the defendants, County of Maricopa
and Joseph Arpaio. We reverse the judgment and remand for
a new trial.

                           FACTS

    Eric Vogel was born on December 21, 1964. By the age
of six, he was showing signs of potential illness. His parents
withdrew him from school when he was in the second grade,
and he was thereafter home-schooled until he graduated from
high school. He attended a community college for two
semesters and part of a semester at Arizona State University.
Thereafter, he simply lived at home.

     Living at home, without further formal education, Vogel
had no gainful employment and lived a remarkably restricted
life. The windows of his home itself were covered with
blankets and tape so that no one could see in. After his
father’s death or departure, he lived alone with his mother.
He left the home no more than two or three times to attend
the funerals of relatives. In October 2001, when Vogel was
36, his sister, Yvon Wagner, visited the home and found him
to be delusional, imagining that a snake was around his neck.

    On the morning of November 12, 2001, for no apparent
reason, Vogel left his home. Police responded to a report of
a burglar in the neighborhood and spotted Vogel as a possible
suspect. The first officer on the scene struggled to get control
of him while Vogel shouted, “Kill me.” When a second
officer arrived, Vogel stated that he, Vogel, must see the
president. The police said they would accommodate him. He
calmed down, and they drove him to the Phoenix jail.
            WAGNER V . COUNTY OF MARICOPA                    7

    In Arizona, common jails are kept by the sheriff of the
county. Ariz. Rev. Stat. § 31-101. Joseph Arpaio, as the
sheriff of Maricopa County, kept the jail to which Vogel was
brought.

    Vogel was put under arrest for assaulting a police officer.
He completed a medical questionnaire, indicating that he had
high blood pressure but no other health problems. A
classification counselor interviewed him and placed a
psychiatric hold on him. A psychological counselor
examined him and concluded that he needed psychiatric care.

    He was put in an isolation cell with a huge window
opening the cell to the view of the jailers and to inmates. The
next morning, November 13, Vogel was assessed by a
psychological counselor as disoriented, paranoid, and
psychotic. He told her that he was at the World Trade Center
getting messages from satellites. She obtained an order for
his transfer to the inpatient psychiatric unit at the jail.

    That afternoon, Vogel was informed that he must “dress-
out.” In the argot of the jail, “to dress-out” was to change
from one’s civilian clothes to prison garb approved by Sheriff
Arpaio. The prison outfit included pink underwear. Vogel
declined to change.

    The “dress-out” prison officer summoned assistance –
four other officers, each to hold an arm or a leg while Vogel’s
clothes were changed. He was placed on the ground, stripped
of all his clothes, and forced into the jail ensemble including
the pink underwear. As the process went on, he shouted that
he was being raped. The officers were aware that he was
being transferred to the Psychiatric Unit. At the end of the
“dress-out” Vogel was wheeled there in “a restraint chair.”
8           WAGNER V . COUNTY OF MARICOPA

     Vogel received treatment for a week and was then bailed
out by his mother. On December 6, 2001, he was in his
mother’s car when she had a minor traffic accident. The
police were summoned. Before they arrived, however, Vogel
left the scene and attempted to walk four or five miles to his
home. He died the next day. The cause, according to the
Maricopa County Medical Examiner, was acute cardiac
arrhythmia.

                     PROCEEDINGS

    On December 6, 2002, Vogel’s mother as representative
of his estate began this action in Arizona Superior Court. It
was removed by the defendants to the federal district court,
which eventually returned the case to the state court. The
plaintiff amended to assert a claim against the defendants for
violation of 42 U.S.C. § 1983 for subjecting Vogel to an
unreasonable search and seizure, denying due process and the
equal protection of the laws, and acting with deliberate
indifference to his serious medical needs. A claim was also
asserted under the Americans with Disability Act, 42 U.S.C.
§ 12131, et seq., and the Rehabilitation Act of 1973,
29 U.S.C. § 794, as well as several claims under Arizona law.
The case was transferred back to the federal district court.

    In limine, the district court ruled that Vogel’s mother and
sister could not testify to what he told them about events at
the jail. The court also ruled that counsel could not refer to
“pink underwear” unless he could show that the record
contained “credible evidence” that Vogel was aware of the
color of the underwear. The court also precluded the
testimony of the plaintiff’s expert, Dr. Spitz, that Vogel’s
death was in part caused by the “dress-out,” thereby
             WAGNER V . COUNTY OF MARICOPA                    9

preventing the issue of liability for the death from reaching
the jury. The court also limited the testimony of Dr. Esplin.

   Before trial began, Vogel’s mother died and his sister
Yvon Wagner replaced her as the representative of the estate.

   At the close of the trial, the court denied plaintiff’s
counsel the opportunity to make a rebuttal.

   The jury returned a verdict for the defendants on each
count. This appeal followed.

                       DISCUSSION

    We review evidentiary rulings for abuse of discretion and
reverse if the exercise of discretion is both erroneous and
prejudicial. As Judge Smith points out, it is not entirely clear
whether construction of a hearsay rule is a matter of
discretion or a legal issue subject to de novo review.
Compare United States v. Stinson, 647 F.3d 1196, 1210–11
(9th Cir. 2011), with United States v. Ortega, 203 F.3d 675,
682 (9th Cir. 2000). We need not resolve the ambiguity here
because our conclusions would be the same under either
standard. We begin with the ruling limiting the testimony of
Yvon Wagner.

   Exclusion of Wagner’s testimony.            Wagner in her
deposition stated:

          He [her brother] felt he was being raped.
       He felt one of the officers attempted to put his
       penis in his mouth and that he had to keep his
       mouth so tight that he bruised his outer lips to
       avoid being accosted that way.
10           WAGNER V . COUNTY OF MARICOPA

           He was sure they were going to rape him.
       He hollered to people. He was sure that all
       the inmates heard him saying who he was and
       that he was being raped and please help him.
       And they were, you know, have [sic] a party
       at his expense. . . .

           He believed he had been raped. He
       believed somebody took their penis out of
       their pants and attempted to insert it in his
       mouth. And that’s as close to – my brother
       was a virgin. He – 36 years old, never
       touched another woman. This was very, I’m
       sure, frightening for him.

    In response to the motion in limine, Wagner made the
same argument she makes now. She argued that her
statements were

       not being offered to prove the details of the
       incident at the jail. Her testimony is not to
       prove an actual rape, but instead to show her
       brother’s state of mind following his
       incarceration. Her testimony establish[es] the
       impact that the event had on Eric. Yvon can
       testify as to the statements he made, his tone
       of voice, and his state of mind in making
       them.

      Federal Rule of Evidence 803(3) excepts from the
general exclusion of hearsay “statement[s] of the declarant’s
then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental
feeling, pain, or bodily health), but not including a statement
            WAGNER V . COUNTY OF MARICOPA                 11

of memory or belief to prove the fact remembered or
believed[.]” The “declarant” is the person who made the out-
of-court statement. See Fed. R. Evid. 801(b).

    Indisputably, Wagner could have testified at trial about
the impact the jail incident had on Vogel, his mood following
the incident, how disturbed he seemed, and even what he
thought happened to him during the incident, all without
putting inadmissible hearsay before the jury. None of this
testimony would have been put forth in order to establish the
truth of what he had said. Wagner proposed to testify about
how extremely delusional Vogel was following the incident,
and more importantly, the emotional impact the incident had
on him, including how humiliated he now felt by the pink
underwear. She was not asserting the truth of anything that
Vogel said had happened to him in jail.

    Her testimony was admissible not to prove “the fact
remembered or believed” but the “mental feeling” of Vogel.
As our dissenting colleague points out, the limiting language
of Rule 803(3) bars “‘statements as to why [the declarant]
held the particular state of mind, or what he might have
believed that would have induced the state of mind.’” United
States v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) (quoting
United States v. Cohen, 631 F.2d 1223, 1225 (5th Cir. 1980)).
The bar applies only when the statements are offered to prove
the truth of the fact underlying the memory or belief. In
Emmert, for example, the defendant sought to introduce his
out-of-court statement that “he was scared because of the
threats made by the agents.” 829 F.2d at 810.

    Here, Vogel’s statements to his sister were offered to
establish his state of mind, not that he was raped or that he
went through the dress-out procedure. The statements were
12          WAGNER V . COUNTY OF MARICOPA

offered to show his state of mind at the time of the
conversation, thus satisfying any contemporaneity
requirement. See United States v. Ponticelli, 622 F.2d 985,
991 (9th Cir. 1980), overruled on other grounds by United
States v. De Bright, 730 F.2d 1255, 1259 (9th Cir. 1984) (en
banc). That Vogel was subjected to the dress-out was
established by the testimony of the defendants’ employees.
The jury could infer the connection between the dress-out and
Vogel’s mental state. Exclusion of this evidence was
erroneous.

    The defense argument that Wagner lacked personal
knowledge is mistaken. She had personal knowledge of how
Vogel had been impacted by the incident. She testified as a
percipient of what she had observed.

    The court curtailed Yvon Wagner’s testimony further by
not permitting her to testify to Vogel’s conversation with her
where he gave his sense of humiliation at being forced to
wear pink underwear or his sense of having been subjected to
a rape. The court banned any testimony mentioning “rape”
or “gang rape” unless counsel showed that the terms were not
“unduly prejudicial.” As already noted, the court excluded
reference to the color of the clothes put on Vogel unless there
was credible evidence that “Vogel was aware of the color of
the jail-issued underwear.”

    The rulings as to “rape” and “gang rape” misconceived
any testimony Wagner would have offered. She would have
used the words to show her brother’s present state of mind,
not his past experience.

  As to testimony of Vogel’s perception of the color,
Wagner’s testimony was to the current state of her brother’s
             WAGNER V . COUNTY OF MARICOPA                    13

mind when he spoke to her. His mind was focused on the
implications of being dressed in pink. That he had been
dressed in pink was not a delusion. It was a fact, essential to
his experience and to the Estate’s deliberate indifference and
due process claims. The jury was asked to evaluate whether
the jail’s measures were taken in furtherance of a legitimate
goal or whether they were, instead, punitive. The exclusion
of any mention of “pink underwear” or “rape” delivered a
second blow to the plaintiff’s case.

     That Vogel was delusional does not mean that he was
incapable of seeing. If you pricked him, he bled. As his eyes
saw the pink, his mind made the association of the color. So
at least a jury could infer from the impact of the dress-out on
Vogel, an impact apparent from his conversation with his
sister.

     Exclusion of references to the color pink. 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 penological 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 shame
and stigmatize the male prisoners as feminine.

    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:

        [I]f a particular condition or restriction of
        pretrial detention is reasonably related to a
14           WAGNER V . COUNTY OF MARICOPA

        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.

    It appears to us that this due process question is still open
for exploration at trial on remand. Alternatively, the plaintiff
may prevail on the narrower proposition that for the jail to
apply this procedure automatically to a man its own staff had
identified as in need of psychiatric treatment was in deliberate
indifference to his serious medical needs. Because of the
evidentiary rulings of the trial court, neither issue was
properly presented to the jury.

    In addition, these rulings deprived the plaintiff of any
foundation for medical testimony as to the probable cause of
Vogel’s death. We do not reach the admissibility of the
medical testimony because as the case developed under the
district court’s rulings, the testimony lacked all foundation.

    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
             WAGNER V . COUNTY OF MARICOPA                     15

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

    Counsel for the county suggested that Vogel’s family had
not provided adequate care for Eric Vogel. The argument
was irrelevant and improper.

   For the reasons stated, the judgment of the district court
is REVERSED and the case is REMANDED for
proceedings in accordance with this opinion.



N.R. SMITH, Circuit Judge, dissenting:

     They say “the third time’s the charm.” Not so in what is
now the third revision of this opinion, wherein the majority
still fails to correct all of its errors. As a result of these
errors, contrary to the Federal Rules of Evidence, non-
contemporaneous hearsay testimony used to prove a
declarant’s memories, beliefs, and the cause of an underlying
state of mind is now admissible. Making matters worse, the
majority allows such testimony absent a foundation of
personal knowledge. In its opinion, the majority reverses the
district court on issues that have been waived and are not
properly before the panel, fails to correctly construe the
hearsay rule and fails to give the proper deference to the
district court’s other evidentiary rulings. I must therefore
dissent because:

    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
16           WAGNER V . COUNTY OF MARICOPA

declarant’s beliefs are hearsay, if offered to prove the
declarant’s belief or offered for a purpose that requires the
declarant to believe the matters asserted are true. Therefore,
the district court did not err in concluding that Yvon
Wagner’s testimony was hearsay.

    2. The majority fails to apply the “substantially
deferential” abuse of discretion test, recently elucidated by
our en banc panel in United States v. Hinkson, 585 F.3d 1247,
1262 (9th Cir. 2009) (en banc), for the remaining evidentiary
issues appealed here. Though an appellate jurist may have
ruled differently on these issues, “we may not simply
substitute our view for that of the district court, but rather
must give the district court’s findings deference.” Id.

                               I.

                STANDARD OF REVIEW

     This circuit’s case law is not entirely clear regarding
whether we review de novo a district court’s decision that a
statement is or is not hearsay. Compare United States v.
Stinson, 647 F.3d 1196, 1210 (9th Cir. 2011) (“We review a
district court’s evidentiary rulings for abuse of discretion.”),
and United States v. Tran, 568 F.3d 1156, 1162 (9th Cir.
2009) (applying an abuse of discretion standard in
determining whether a statement is hearsay under Rule 801),
with Mahone v. Lehman, 347 F.3d 1170, 1173–74 (9th Cir.
2003) (“We review the district court’s construction of the
hearsay rule de novo . . . .” (quoting Orr v. Bank of Am., NT
& 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
             WAGNER V . COUNTY OF MARICOPA                    17

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
novo whether the trial court identified the correct legal rule to
apply to the relief requested.” Id. If so, the second step “is
18             WAGNER V . COUNTY OF MARICOPA

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

 1
   W agner 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.”
             WAGNER V . COUNTY OF MARICOPA                    19

of review is de novo or abuse of discretion. The majority
erroneously concludes that Wagner’s testimony was not
offered to prove what Vogel asserted.

A. Wagner’s testimony was hearsay evidence

    The Estate argues that Wagner’s testimony was not
hearsay, because it was not offered to prove the details of the
dress-out procedure (i.e., that Vogel was actually raped).
Instead, the Estate argues that Wagner’s testimony was
offered to show Vogel’s state of mind following the dress-out
procedure and the lasting impact the event had on Vogel
following his release. The majority asserts that Wagner “was
not asserting the truth of anything that Vogel said had
happened to him in jail.” Maj. Op at 11. I disagree with
both. Wagner’s testimony was offered to prove the truth of
the matter asserted—i.e., that Vogel believed the events he
described happened. The district court did not incorrectly
construe or apply the hearsay rule.

    Hearsay “is a statement, other than one made by the
declarant while testifying at the trial or hearing, offered in
evidence to prove the truth of the matter asserted.” Fed. R.
Evid. 801(c). The majority agrees that, if Wagner’s
testimony—including Vogel’s statements that (1) he was
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.
20           WAGNER V . COUNTY OF MARICOPA

    However, the Estate and the majority assert that Wagner’s
testimony is not offered to prove the “truth of anything that
Vogel said had happened to him in jail.” Maj. Op. at 11.
That assertion may be true, but it is not focused on Wagner’s
statements. For example, Wagner testified that Vogel
(1) “felt he was being raped,” (2) “felt one of the officers
attempted to put his penis in his mouth,” (3) “believed he was
being raped,” and (4) “believed the pink underwear was used
to put him in [a] vulnerable position with these officers.”
Wagner’s testimony is offered to prove the truth of what
Vogel asserted—i.e., that he believed what he described
occurred. A statement is hearsay if offered to prove the truth
of the matter asserted. Focusing on Wagner’s statements,
they are hearsay, because they were offered to show that
Vogel actually believed the facts asserted. 30B Michael H.
Graham, Federal Practice & Procedure § 7044 (interim ed.
2000) (explaining that second-hand statements of belief are
hearsay, but may be admissible under Rule 803(3)’s
exception to the hearsay rule). Further, the statements are
hearsay, because it must be proven that Vogel believed the
matters asserted were true for the Estate’s mental state
argument to succeed. Id. § 7006 (“If the declarant must
believe the matter asserted to be true for any inference to
logically flow, . . . the hearsay risks of sincerity and narration
are present. Such statements are thus properly classified as
hearsay.”). The Estate never made an offer of proof to
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.
             WAGNER V . COUNTY OF MARICOPA                      21

B. Wagner’s testimony did not fall under Rule 803(3)’s
   then-existing state of mind exception to the hearsay
   rule

    The Estate argues that, even if Wagner’s testimony were
hearsay, it was admissible as evidence under the state of mind
exception in Federal Rule of Evidence 803(3). The majority
agrees. However, the district court disagreed and, because
this is a discretionary decision, we must afford the district
court’s decision substantial deference. Here, the district
court’s determination that Wagner’s testimony regarding
Vogel’s post-release statements did not fall under Rule
803(3)’s state of mind exception was not illogical,
implausible, or without support in inferences that may be
drawn from the facts in the record. The statements (1) were
statements of memory or belief made at least one week after
the events at issue; and (2) were offered not simply to
demonstrate Vogel’s present mental condition but his past
mental condition (i.e., that he was agitated), and also to
explain why he was agitated (i.e., that he believed he was
being raped). Therefore, although we may have decided this
issue differently, the district court did not abuse its discretion.

    Rule 803(3) creates an exception to the hearsay rule for
“[a] statement of the declarant’s then existing state of mind,
emotion, sensation, or physical condition (such as intent,
plan, motive, design, mental feeling, pain, and bodily health),
but not including a statement of memory or belief to prove the
fact remembered or believed . . . .” Fed. R. Evid. 803(3)
(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
22          WAGNER V . COUNTY OF MARICOPA

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 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.”
             WAGNER V . COUNTY OF MARICOPA                   23

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-of-mind exception because the explanation
for the fear expresses a belief different from the state of mind
of being afraid.”).

    The majority contends that we made it clear in Emmert
“that the bar applies only when the statements are offered to
prove the truth of the facts underlying the memory or belief.”
Maj. Op. at 11. However, in Emmert and Fontenot, we did
not indicate that our decisions hinged on the declarant
offering the reasons for the belief in order to prove the events
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
24           WAGNER V . COUNTY OF MARICOPA

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 statement’s went to establish his
state of mind at the time he spoke to his sister. Maj. Op. at
11–12. If Wagner’s testimony were only offered to prove
            WAGNER V . COUNTY OF MARICOPA                 25

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.
26           WAGNER V . COUNTY OF MARICOPA

                              III.

        EXCLUDING REFERENCES TO PINK
                UNDERWEAR

    The Estate failed to specifically and distinctly argue in its
opening brief that the district court erred in excluding
evidence related to pink underwear. Therefore, we should
consider such an argument waived, and we should not address
it. See Kim v. Kang, 154 F.3d 996, 1000 (9th Cir. 1998).
While the Estate mentions the issue in its statement of issues
and summary of the argument sections of its opening brief,
the Estate fails to discuss and argue the point in the body of
the arguments section in the opening brief. Such a deficiency
waives the issue. See Martinez-Serrano v. I.N.S., 94 F.3d
1256, 1259 (9th Cir. 1996) (“[A]n issue referred to in the
appellant’s statement of the case but not discussed in the body
of the opening brief is deemed waived.”).

    I fail to understand why the majority addresses the issue.
The sheriff’s use of pink underwear is a policy consideration,
with which we may disagree but should not review, especially
when the issue is not properly before us. Sadly however, the
majority’s consideration of the issue is consistent with its
failure to apply the appropriate standard of review (i.e., abuse
of discretion) to the evidentiary issues discussed in other
sections of this dissent.

                              IV.

                 CLOSING ARGUMENT

   Lastly, the majority hastily concluded that the district
court abused its discretion by denying the Estate a rebuttal
            WAGNER V . COUNTY OF MARICOPA                   27

closing argument at trial. However, the majority never
explains what law gives a plaintiff in the District of Arizona
an inalienable right to rebuttal argument, much less how the
district court abused its discretion in shaping closing
arguments under District of Arizona Local Rule 39.1(d).
Rule 39.1(d) guarantees a “right to close” to the party bearing
the burden of proof, but that rule has never been defined to
provide the right to speak last. The district court permitted
the Estate to make a “thorough,” 60-minute closing argument.
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.
