                                                                             FILED
                            NOT FOR PUBLICATION                              OCT 24 2012

                                                                          MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                         U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


GARY BERNARD MOORE,                             No. 10-16082

              Plaintiff - Appellant,            D.C. No. 3:04-cv-01749-MMC

  v.
                                                MEMORANDUM*
RICHMOND POLICE DEPARTMENT;
et al.,

              Defendants,

  and

S. ZEPPA; et al.,

              Defendants - Appellees.,

  and

KELLY HARRINGTON, Warden,

              Respondent.


                  Appeal from the United States District Court
                     for the Northern District of California
               Maxine M. Chesney, Senior District Judge, Presiding



        *
       This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                    Argued and Submitted September 10, 2012
                            San Francisco, California

Before: ALARCÓN, THOMAS, and BERZON, Circuit Judges.

Gary Moore appeals from the district court’s judgment following a jury verdict in

favor of defendants in his 42 U.S.C. § 1983 action, and from the district court’s

denial of his motion for a new trial. Moore alleged that officers of the City of

Richmond Police Department used excessive force when they arrested him on

October 16, 2002. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we

affirm. Because the parties are familiar with the facts and procedural background,

we will not recount them here except as may be required in discussing a particular

appellate issue.

                                          I

      The district court ruled that evidence of Moore’s prior 1998 conviction for

attempted grand theft person was admissible for impeachment purposes under Fed.

R. Evid. 609. We review evidentiary rulings for abuse of discretion. United States

v. Plancarte-Alvarez, 366 F.3d 1058, 1062 (9th Cir. 2004). An erroneous decision

to admit evidence will be reversed only if the error was prejudicial. Simpson v.

Thomas, 528 F.3d 685, 689 (9th Cir. 2008); Powell v. Levit, 640 F.2d 239, 241 (9th

Cir. 1981). This court will find prejudice when it is persuaded that the admission



                                          2
affected the outcome of the trial. United States v. Edwards, 235 F.3d 1173, 1178

(9th Cir. 2000).

      Moore correctly argues on appeal that his 1998 conviction for attempted

grand theft person was not properly admitted under either Rule 609(a) or 609(b),

because the conviction was more than ten years old and the district court did not

articulate any specific facts or circumstances demonstrating that the probative

value of the conviction substantially outweighed its prejudicial effect, as required

under Rule 609(b). The district court’s error in admitting the 1998 conviction was

harmless, however, because Moore has not met his burden of persuading this court

that the admission affected the outcome of the trial. See Edwards, 235 F.3d at

1178 (holding that an erroneous admission of evidence is not harmless where it

“more likely than not affected the outcome of the trial”).

      Jurors heard evidence of Moore’s more recent, more serious 2005 felony

conviction for residential burglary, which likely did more to impeach his

credibility than the older 1998 conviction for attempted grand theft person. Thus,

it is not likely that the admission of the evidence of the 1998 conviction materially

affected the jury’s deliberations.

                                          II

       Moore argues that the jury instructions misstated what he was required to


                                          3
prove at trial and that, under “the law of the case” doctrine, it was error for the

district court not to include in the jury instructions the statements made in an

earlier summary judgment order in the case. A district court’s decision whether to

apply “law of the case” doctrine is reviewed for an abuse of discretion. See S. Or.

Barter Fair v. Jackson Cnty., Oregon, 372 F.3d 1128, 1136 (9th Cir. 2004). In

reviewing jury instructions, we must determine “whether, considering the charge as

a whole, the court’s instructions fairly and adequately covered the issues presented,

correctly stated the law, and were not misleading.” Thorsted v. Kelly, 858 F.2d

571, 573 (9th Cir. 1988). The district court’s jury instructions met this standard.

      The district court did not abuse its discretion in determining that statements

from an earlier summary judgment ruling by a prior judge are not required to be

incorporated in the jury instructions. See Shouse v. Ljunggren, 792 F.2d 902, 904

(9th Cir. 1986) (citing Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74, 79-80

(9th Cir. 1979) (“the law of the case doctrine does not apply to pretrial rulings such

as motions for summary judgment”)).

      Moore also contends that three of the jury instructions were unnecessary,

superfluous, confusing and/or contradictory. He largely concedes, however, that

those instructions accurately stated the law.

      “[J]ury instructions must fairly and adequately cover the issues presented,


                                           4
must correctly state the law, and must not be misleading.” Hunter v. Cnty. of

Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (internal quotations omitted).

“So long as [jury] instructions fairly and adequately cover the issues presented, the

judge’s formulation of those instructions or choice of language is a matter of

discretion.” United States v. Echeverry, 759 F.2d 1451, 1455 (9th Cir. 1985).

      The jury instructions, viewed as a whole, were not misleading. The district

court did not err in instructing the jury that it was required to find whether the

officers engaged in any of the actions described in the instruction, and if so,

whether those actions were performed with excessive force.1


      1
         In reaching a contrary result, the dissent concludes that the jury instruction
setting forth the substantive law on excessive force was legally erroneous and
reversible error because the jury “most likely” understood the instruction to mean
that “even if the jury determined that the Defendant officer(s) had [for example] . . .
‘[i]nserted a flashlight into Mr. Moore’s rectum at the hospital’ . . .—the jury could
still find that the force was justified by the circumstantial factors . . . including the
severity of the crime for which Moore was arrested or the fact that he was
‘uncooperative and restive at the hospital.’” But “the law governing appellate
review of jury instructions counsels against looking at any one jury instruction in
isolation.” Swinton v. Potomac Corp., 270 F.3d 794, 807 (9th Cir. 2001). “Rather,
prejudicial error results when, looking to the instructions as a whole, the substance
of the applicable law was [not] fairly and correctly covered.” Id. (quotations and
citations omitted). Taken as a whole, the instructions given by the district court
“fairly and correctly” cover the proper legal standard governing excessive force.

       We also disagree with the dissent’s determination as to how the jury “most
likely” understood the challenged instruction. It is equally likely, based on the
evidence presented at trial, that the jury determined that the defendants did not use
                                                                         (continued...)
                                           5
                                           III

      Moore contends that the district court abused its discretion in denying his

motion for a new trial because (1) the withdrawal of his counsel two weeks prior to

commencement of trial caused him irreparable harm and (2) he was improperly

questioned about prior bad acts during cross-examination. We review the district

court’s denial of a motion for new trial pursuant to Fed. R. Civ. P. 59(a) for abuse

of discretion. Jorgensen v. Cassiday, 320 F.3d 906, 918 (9th Cir. 2003). “The

abuse of discretion standard requires us to uphold a district court determination

that falls within a broad range of permissible conclusions, provided the district

court did not apply the law erroneously.” Kode v. Carlson, 596 F.3d 608, 612 (9th

Cir. 2010) (citing Grant v. City of Long Beach, 315 F.3d 1081, 1091 (9th Cir.

2002)). This court “first look[s] to whether the trial court identified and applied

the correct legal rule to the relief requested [and then] . . . look[s] to whether the

trial court’s resolution of the motion resulted from a factual finding that was

illogical, implausible, or without support in inferences that may be drawn from the



      1
        (...continued)
excessive force or take any of the actions listed in the first part of the challenged
jury instruction, in which case the jury would not have proceeded to the second
part of the jury instruction to apply the factors used to determine whether the force
was excessive.


                                            6
facts in the record.” United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir.

2009); see also Roy v. Volkswagen of Am., Inc., 896 F.2d 1174, 1176 (9th Cir.

1990) (internal citations omitted) (holding that a new trial may be granted if “the

verdict is contrary to the clear weight of the evidence, or is based upon evidence

which is false, or to prevent, in the sound discretion of the trial court, a miscarriage

of justice”).

       In determining whether an irreconcilable conflict exists to support the grant

of a motion to withdraw as counsel, we consider “(1) the adequacy of the district

court’s inquiry; (2) the extent of any conflict; and (3) the timeliness of the motion.”

United States v. McKenna, 327 F.3d 830, 843 (9th Cir. 2003) (citing United States

v. Adelzo-Gonzalez, 268 F.3d 772, 777 (9th Cir. 2001). Here, the district court

adequately inquired into the extent of the attorney-client conflict and considered

the timeliness of the motion. In granting counsel’s motion to withdraw, the district

court found that Moore had “engaged in conduct that ‘render[ed] it unreasonably

difficult for [counsel] to carry out the employment effectively,” and cited to Rule

3-700(C) of the California Rules of Professional Conduct, which states that if the

client’s conduct renders it unreasonably difficult for the lawyer to carry out their

employment effectively, they are not required to stay in the case.

       Moore also argues that the district court abused its discretion in denying his


                                           7
motion for a new trial because he was prejudiced when the officers questioned him

about an occasion several years earlier when he was stopped by police in San Pablo

and lied about his true identity. Moore objected to this line of questioning at trial.

The district court permitted defense counsel, over Moore’s objection, to continue

cross-examining him about the incident but limited the questioning to reading

certain questions and answers Moore provided in his prior deposition testimony

concerning the incident.

      Under Fed. R. Evid. 608(b)(1), “extrinsic evidence is not admissible to prove

specific instances of a witness’s conduct in order to attack or support the witness’s

character for truthfulness. But the court may, on cross-examination, allow them to

be inquired into if they are probative of the character for truthfulness or

untruthfulness of . . . the witness.” Moore has failed to demonstrate that the district

court abused its discretion in allowing defendants to impeach him by evidence of

his prior testimony that he had in the past lied to police when they stopped him and

asked for his name, or that he was prejudiced by the ruling.

      AFFIRMED.




                                           8
                                                                              FILED
Moore v S. Zeppa et al 10-16082                                                 OCT 24 2012

                                                                          MOLLY C. DWYER, CLERK
Judge Berzon, dissenting in part:                                          U.S. COURT OF APPEALS



      I concur in the proposed memorandum disposition except with regard to the

most important jury instruction, the one concerning whether the police used

excessive force against Moore.

      “[J]ury instructions must fairly and adequately cover the issues presented,

must correctly state the law, and must not be misleading.” Hunter v. Cnty. of

Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (quoting Dang v. Cross, 422

F.3d 800, 804 (9th Cir. 2005)) (internal quotation marks omitted). Because the

excessive force instruction as likely understood by the jury was legally erroneous, I

would reverse the verdict.1

      Here is the instruction that was given:


      1
        Although Defendants argue that Moore did not adequately object to the
jury instructions in district court to preserve the issue for appeal, the majority
reaches the merits of the claimed instructional error, so I do as well. Moreover,
Moore did object to instructions that would permit the jury to find Defendants had
committed the actions listed in the final excessive force instruction but
nevertheless conclude there was no violation of Moore’s constitutional rights. Even
if Moore’s objections were deficient in terms of the plain language of Federal Rule
of Civil Procedure 51, a formal objection is not required “[w]here the district court
[was] aware of the party’s concerns with an instruction, and further objection
would [have been] unavailing.” Voohries-Larson v. Cessna Aircraft Co., 241 F.3d
707, 714–15 (9th Cir. 2001) (internal quotation mark omitted).


                                         -1-
       In general, a seizure of a person is unreasonable under the
Fourth Amendment if a police officer uses excessive force in making
a lawful arrest and/or in defending himself or others and/or in
interacting with arrested subjects. Thus, in order to prove an
unreasonable seizure in this case, Mr. Moore must prove by a
preponderance of the evidence that the Defendant officer(s) used
excessive force when they took any of the following actions:

1)    Used force and inflicted injuries upon Mr. Moore once he was
      in handcuffs at the scene;
2)    Forcibly and unreasonable restrained Mr. Moore while a nurse
      took his temperature rectally, against Mr. Moore’s wishes, at
      the hospital;
3)    Inserted a flashlight into Mr. Moore’s rectum at the hospital;
      and
4)    The other present Defendant officer(s) failed to intervene to
      prevent other Defendants officer(s) from committing any of the
      above described acts.

       Under the Fourth Amendment, a police officer may only use
such force as is “objectively reasonable” under all of the
circumstances. In other words, you must judge the reasonableness of a
particular use of force from the perspective of a reasonable officer on
the scene and not with the 20/20 vision of hindsight.

       In determining whether the Defendant officer(s) used excessive
force in this case, consider all of the circumstances known to the
officer(s) on the scene, including:

1.    The severity of the crime or other circumstances to which the
      officer(s) were responding;
2.    Whether Mr. Moore posed an immediate threat to the safety of
      the officer(s) or to others;
3.    Whether Mr. Moore was actively resisting arrest or attempting
      to evade arrest by flight;
4.    Whether Mr. Moore was uncooperative and resistive at the
      hospital;

                                  -2-
      5.     The amount of time and any changing circumstances during
             which the Defendant officer(s) had to determine the type and
             amount of force that appeared to be necessary;
      6.     The type and amount of force used;
      7.     The availability of alternative methods to subdue Mr. Moore.


      This instruction tacked together an instruction that the parties had agreed

upon earlier, while Moore was represented by counsel, and part of a more general

instruction submitted by the government. But it departed from those proposed

instructions in at least two material respects:

      First, the parties’ joint proposed instructions had included the following: “If

Mr. Moore proves to you by a preponderance of the evidence that any Defendant

officer[s] punched, struck, or hit Mr. Moore in any way at the scene after he had

already been placed into handcuffs, then that officer violated Mr. Moore’s Fourth

Amendment rights. . . . If Mr. Moore proves to you by a preponderance of the

evidence that Defendant Officer Hembree inserted a flashlight into Mr. Moore’s

rectum at the hospital, then Defendant Officer Hembree violated Mr. Moore’s

Fourth Amendment rights.” The instruction given to the jury contained no such

clear statements.

      Second, Defendants’ separate proposed instruction on excessive force had

concluded with the following language: “[T]he parties have agreed that if Mr.



                                          -3-
Moore was punched or hit after he was placed in handcuffs, that such use of force

was excessive and unconstitutional.” The instruction given to the jury left out that

caveat.

      Without these clarifying statements, the final instruction as given appears to

state that even if the jury determined that the Defendant officer(s) had taken any of

the four listed actions—that is, even if they: “[u]sed force and inflicted injuries

upon Mr. Moore once he was in handcuffs at the scene”; “[f]orcibly and

unreasonable restrained Mr. Moore while a nurse took his temperature rectally,

against Mr. Moore’s wishes, at the hospital”; “[i]nserted a flashlight into Mr.

Moore’s rectum at the hospital”; or “failed to intervene to prevent other Defendants

officer(s) from committing any of the above described acts”—the jury could still

find that the force was justified by the circumstantial factors enumerated in the

latter half of the instruction, including the severity of the crime for which Moore

was arrested or the fact that he was “uncooperative and restive at the hospital.”

      So understood—which it most likely was, or else the whole part of the

instruction beginning with “In determining” was excess—the instruction was

legally erroneous. Once the arrest was accomplished, the listed factors could not

have made actions such as the use of force to compel unwanted medical care or the

insertion of a flashlight in Moore’s rectum “objectively reasonable.” Graham v.

                                          -4-
Connor, 490 U.S. 386, 397 (1989). “[W]here there is no need for force, any force

used is constitutionally unreasonable.” Headwaters Forest Def. v. Cnty. of

Humboldt, 240 F.3d 1185, 1199 (9th Cir. 2000), vacated on other grounds, 534

U.S. 801 (2001); cf. Guy v. City of San Diego, 608 F.3d 582, 589 (9th Cir. 2010)

(“[E]ven when police officers reasonably must take forceful actions in response to

an incident, and even when such forceful actions are permissible at first, if the

officers go too far by unnecessarily inflicting force and pain after a person is

subdued, then the force, unnecessary in part of the action, can still be considered

excessive.”). Moreover, the Fourth Amendment not only prohibits the use of

excessive force, but “generally proscribes ‘unreasonable intrusions on one’s bodily

integrity.’” Fontana v. Haskin, 262 F.3d 871, 878–79 (9th Cir. 2001) (quoting

Headwaters Forest Def., 240 F.3d at 1199). And “there can be no countervailing

governmental interest to justify sexual misconduct.” Id. at 880 (internal quotation

marks omitted). Furthermore, pretrial detainees have rights “to be free from

unjustified intrusions to the body, to refuse unwanted medical treatment and to

receive sufficient information to exercise these rights intelligently.” Benson v.

Terhune, 304 F.3d 874, 884 (9th Cir. 2002) (citation omitted); see also Ellis v. City

of San Diego, 176 F.3d 1183, 1192 (9th Cir. 1999) (denying qualified immunity to

an officer accused of using excessive force in restraining an arrestee and forcibly

                                          -5-
inserting a catheter to extract a urine sample—an act the court described as a

“‘gross personal indignity’” (quoting Yanez v. Romero, 619 F.2d 851, 855 (10th

Cir. 1980))).

      I thus cannot agree that if the jury found the events described in the

instruction had occurred, it was entitled to find the absence of excessive force. Yet,

the instruction was most likely read as allowing such a finding.

      Nor can I conclude that any instructional error was harmless. Defendants

argue that the jury instructions “properly set forth the legal standards pertaining to

excessive force,” but they do not argue that if the instruction was erroneous, the

error was harmless. Consequently, the argument is waived. See Clem v. Lomeli,

566 F.3d 1177, 1182 (9th Cir. 2009).

      Even if it were not waived, a harmless error argument would fail. “An error

in instructing the jury in a civil case requires reversal unless the error is more

probably than not harmless.” Dang, 422 F.3d at 811 (quoting Caballero v. City of

Concord, 956 F.2d 204, 206 (9th Cir. 1992)) (internal quotation marks omitted). It

is not more probable than not that the jury’s verdict resulted from factual

determinations in favor of Defendants rather than from a misapprehension of law.

See Gambini v. Total Renal Care, Inc., 486 F.3d 1087, 1093 (9th Cir. 2007)

(quoting Swinton v. Potomac Corp., 270 F.3d 794, 805–06 (9th Cir. 2001)) (“[I]n

                                          -6-
reviewing a civil jury instruction for harmless error, the prevailing party is not

entitled to have disputed factual questions resolved in his favor . . . .”).

      It is quite possible that the jury found Moore not believable. But we cannot

so conclude without making our own credibility finding on grounds separate from

the plausibility of the alleged excessive force incidents—e.g., on the basis of the

implausible explanation Moore gave for his presence in the house where he was

arrested. We would then have to apply our credibility determination to Moore’s

account of the events underlying his excessive force claim. We may not do that.

Instead, “we must respect the exclusive province of the jury to determine the

credibility of witnesses, resolve evidentiary conflicts, and draw reasonable

inferences from proven facts.” United States v. Kranovich, 401 F.3d 1107,

1112–13 (9th Cir. 2005) (quoting United States v. Sherwood, 98 F.3d 402, 408 (9th

Cir. 1996)) (internal quotation mark omitted); see also United States v. Vallejo,

237 F.3d 1008, 1021 (9th Cir.), amended on denial of reh’g, 246 F.3d 1150 (9th

Cir. 2001) (“[T]he credibility of the witness is a question precisely within the

province of the jury.”).

      I therefore would hold the excessive force instruction erroneous and not

harmless.




                                           -7-
