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Estate of Casillas v. City of Fresno

United States District Court, E.D. California

July 2, 2019

ESTATE OF CASIMERO CASILLAS, et al., Plaintiffs
v.
CITY OF FRESNO, et al., Defendants

          ORDER DENYING DEFENDANTS' MOTION FOR NEW TRIAL AND MOTION FOR DIRECTED VERDICT (DOC. NO. 99)

         After a five-day trial in February of 2019, a jury returned a verdict in favor of Plaintiffs on their claims of Fourth Amendment excessive force and of California battery and negligence, as against Defendants Officer Shipman and the City of Fresno. Doc. No. 88 (Jury Verdict).

         Defendants filed a motion for new trial and for a directed verdict, contending: (I) two jurors committed misconduct; (II) the jury's damages award for loss of enjoyment of life must be voided; (III) the damages award for decedent's pain and suffering is excessive; (IV) the negligence verdict is inconsistent; (V) the jury received improper instructions on the battery claim; (VI) insufficient evidence exists to support the jury's verdict, and the verdict is against the weight of the evidence; and (VII) Officer Shipman is entitled to qualified immunity. Doc. No. 99. Plaintiffs oppose. Doc. No. 111. The Court will deny Defendants' motion, as:

(I) There was no juror misconduct in either voir dire or deliberations;
(II) The damage award for loss of enjoyment of life is valid under Chaudhry;
(III) The award for pain-and-suffering is within the range approved of by authority;
(IV) The errant portion of the negligence verdict is disregarded as superfluous;
(V) The Court gave the proper jury instruction for the battery and § 1983 claims;
(VI) The verdict is supported by substantial evidence and is not against its clear weight;
(VII) Officer Shipman is not entitled to qualified immunity on the § 1983 claim.

         BACKGROUND[1]

         On September 7, 2015, officers with the Fresno Police Department attempted a traffic stop of a vehicle driven by Casimero Casillas. Casillas instead drove to a residence in Fresno, exited the car, and hid from the officers. Later, Casillas was spotted on foot exiting a detached apartment, while carrying a large metal pipe, as he attempted to evade officers and K-9 units. See Ex. J111, the “Diagram of property Photo 001047, ” below (Doc. No. 85 at p. 1). Casillas entered a small and cluttered room where Officer Shipman was stationed, and moved toward the opposite door. Within seconds, Officer Shipman shot Casillas three times without a warning that he was going to shoot. According to Officer Shipman, Casillas carried the pipe in a “pre-assaultive” manner and never made eye contact with the Officer. Casillas audibly moaned as paramedics attempted to stabilize

         (Image Omitted)

         him; he died from his injuries six hours later at the hospital.

         After a five-day trial, the jury found that Officer Shipman's use of force was excessive, as alleged in Plaintiffs' Fourth Amendment and California battery causes of action.[2] Doc. No. 88. The jury determined Casillas did not pose an immediate threat of death or serious bodily injury to Officer Shipman at the time of the shooting (as queried via a special interrogatory designed to address the issue of qualified immunity). Id. at p. 2. As to Plaintiffs' negligence claim, the jury found Officer Shipman to be both negligent and a substantial factor in causing Casillas's death. Id. at p. 3. The jury also determined Casillas was negligent, but that his own negligence was not a contributing cause of his death. Id. at p. 4. The jury then apportioned fault, in contravention of the instructions on the verdict form, at 60% for Officer Shipman and 40% for Casillas.[3] Id. For damages, the jury awarded $250, 000 for Casillas's “mental, physical, and emotional pain and suffering experienced prior to death, ” $2, 000, 000 for Casillas's “loss of enjoyment of life, ” and $2, 500, 000, divided equally between Casillas's five children, for their loss of Casillas's love, companionship, and the like. Id. at p. 5-6.

         Two weeks after the entry of judgment, Defendants filed the instant motion for new trial, asserting numerous legal challenges to the verdict form and jury instructions, as well as renewed arguments for a directed verdict and for a finding of qualified immunity. Doc. No. 99. In addition, Defendants contend that two jurors committed serious misconduct during their service as jurors. Id. Defendants allege that one juror, a former city manager of the nearby city of Tulare, was fired from his job over an officer-involved shooting in Tulare a year prior. Doc. No. 99-2. Defendants alleged the other juror, the foreperson, knew the decedent in the same Tulare incident, and that both of these jurors were associates of the former mayor of Tulare, whom Defendants characterize as anti-police. Id.; Doc. No. 114-5. Finally, Defendants presented the affidavit of a third juror in this case, who stated that these two jurors discussed the Tulare incident with the jury panel during deliberations. Doc. No. 114-4. Defendants argue these contentions constitute evidence of bias against police officers, including Officer Shipman, and contend these jurors should have disclosed their biases when questioned by the Court during voir dire. Doc. No. 99. Because the alleged biases were not disclosed, Defendants question the fairness of the proceedings. Id. Defendants also contend “external prejudicial information” infected the jury's deliberations. Doc. No. 126.

         In response, Plaintiffs submitted declarations from the foreperson-juror and city-manager-juror; both jurors stated they had no bias against police officers generally or against Officer Shipman or the City of Fresno P.D., and otherwise disputed Defendants' specific contentions regarding the Tulare officer-involved shooting. Doc. Nos. 118-1 and -2. Plaintiffs also submitted declarations from the mother of the decedent in the Tulare incident, stating she did not know the juror foreperson, as well as various legal documents regarding the city-manager-juror. Doc. Nos. 111-2 and 121-1.

         On May 29, 2019, the Court held an evidentiary hearing on the juror misconduct issue, where the parties cross-examined the three jurors who submitted affidavits. See Doc. No. 126-1 (transcript). The parties filed supplemental briefing, and the Court took Defendants' motion under submission.

         DISCUSSION

         Legal Standard for a Rule[4] 59(a)(1)(A) Motion for New Trial

         “The court may, on motion, grant a new trial . . . after a jury trial, for any reason for which a new trial has heretofore been granted in an action at law in federal court.” Rule 59(a)(1)(A). Historically recognized grounds include claims “that the verdict is against the weight of the evidence, that the damages are excessive, or that, for other reasons, the trial was not fair to the party moving.” Molski v. M.J. Cable, Inc., 481 F.3d 724, 729 (9th Cir. 2007) (quoting Montgomery Ward & Co. v. Duncan, 311 U.S. 243, 251 (1940)); see also Crowley v. Epicept Corp., 883 F.3d 739, 747-48 (9th Cir. 2018) (“[A] new trial may be warranted if the district court has given erroneous jury instructions or failed to give adequate instructions.”); Pope v. Man-Data, Inc., 209 F.3d 1161, 1163 (9th Cir. 2000) (issue of juror misconduct appropriate for Rule 59 motion for new trial); Vaughan v. Ricketts, 950 F.2d 1464, 1470 (9th Cir. 1991) (resolving “irreconcilably inconsistent” jury-verdict issue under motion for new trial standards). The district court has broad discretion in deciding whether to grant a new trial but should use this “extraordinary remedy . . . sparingly in the interests of finality and conservation of judicial resources.” Wood v. Ryan, 759 F.3d 1117, 1121 (9th Cir. 2014). In considering a motion for a new trial on any of these grounds-including that the verdict is against the weight of the evidence-the trial court may assess the credibility of the witnesses and weigh the evidence. See Kode v. Carlson, 596 F.3d 608, 612 (9th Cir. 2010); see also Landes Const. Co., Inc. v. Royal Bank of Canada, 833 F.2d 1365, 1372 (9th Cir. 1987) (“The court need not view the evidence in the light most favorable to the prevailing party.”). “The burden of showing harmful error rests on the party seeking the new trial.” Bos. Sci. Corp. v. Johnson & Johnson, 550 F.Supp.2d 1102, 1110 (N.D. Cal. 2008) (citing Malhiot v. S. Cal. Retail Clerks Union, 735 F.2d 1133 (9th Cir. 1984)); see also Madrigal v. Allstate Ins. Co., 215 F.Supp.3d 870, 907 (C.D. Cal. 2016), aff'd sub nom. Madrigal v. Allstate Indem. Co., 697 Fed.Appx. 905 (9th Cir. 2017).

         Legal Standard for a Rule 50(b) Motion

         A renewed judgment as a matter of law is proper only when “the evidence permits only one reasonable conclusion, and that conclusion is contrary to the jury's verdict.” Rookaird v. BNSF Ry. Co., 908 F.3d 451, 455 (9th Cir. 2018) (quoting Josephs v. Pac. Bell, 443 F.3d 1050, 1062 (9th Cir. 2006)); Rule 50(b). All evidence should be “construed in the light most favorable to the nonmoving party.” Castro v. Cty. of Los Angeles, 833 F.3d 1060, 1066 (9th Cir. 2016); see also Reeves v. Sanderson Plumbing Prod., Inc., 530 U.S. 133, 151 (2000) (holding that in ruling on a motion for judgment as a matter of law, the court “must disregard all evidence favorable to the moving party that the jury is not required to believe.”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986) (“Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge.”). Thus, “[t]he verdict will be upheld if it is supported by substantial evidence, ‘even if it is also possible to draw a contrary conclusion.'” Rookaird, 908 F.3d at 455 (quoting First Nat'l Mortg. Co v. Fed. Realty Inv. Tr., 631 F.3d 1058, 1067 (9th Cir. 2011)).

         I. Defendants have not demonstrated the jurors committed misconduct.

         Defendants' Arguments

         Defendants contend that a new trial under Rule 59 is warranted because of “the extreme bias of two jurors who withheld critical information during voir dire which would have absolutely disqualified both of them from sitting on this jury.” Doc. No. 99 at p. 1.

         Defendants allege one juror withheld information about his prior work as a city manager for the City of Tulare, his firing of Tulare's police chief during a time when Tulare residents were protesting an officer-involved shooting factually similar to Casillas's, and Tulare City Council's firing of this city-manager-juror because of his firing of the police chief. See Id. Defendants also allege this juror was in a conspiratorial relationship with the former mayor of Tulare, who Defendants characterize as “an outspoken critic of police.” Doc. No. 114 at p. 2. Defendants thus argue this juror harbored and hid his “extreme bias” against police officers, Officer Shipman included. Id. In support of their contentions, Defendants have submitted a) a number of news articles from local publications noting the city-manager-juror's firing and his relationship with the ex-mayor (Doc. No. 99-2); b) deposition testimony from witnesses in the police chief's lawsuit against the City of Tulare (that, Defendants allege, demonstrates the conspiracy) (Doc. No. 114-2, 114-3); and c) a declaration from another juror in Casillas's case describing how the city-manager-juror discussed the Tulare shooting with other members of the jury panel during deliberations, in order to persuade the panel that all officers (not just Officer Shipman) “need to handle these situations differently and that officers need to be trained better.” (Doc. No. 114-4).

         For the other juror, the foreperson, Defendants contend she had “personal familiarity with the family of the individual killed” in the same Tulare incident, as well as a friendship with the same Tulare city ex-mayor. Id. at p. 6. Thus, Defendants contend the foreperson-juror also harbored anti-police sentiments that she did not disclose during voir dire. In support, Defendants provided a) screenshots of the foreperson's social-media pages (Doc. No. 114-5); and b) a declaration from the third juror describing how, during deliberations, the foreperson stated she was familiar with the Tulare-shooting decedent and describing how the foreperson-juror engaged in the discussions with the city-manager-juror about this other incident (Doc. No. 114-4).

         Defendants maintain both of these jurors should have disclosed these alleged biases during voir dire when asked by the Court whether “[they], a family member, or a close friend [had] any exposure to law enforcement that you would consider negative, adverse or whatever”, and when asked if they “had any dealings or exposure with the City of Fresno, not just the Police Department, but the City of Fresno itself, any of its employees, or whatever.” Id. at pp. 2-3. Defendants then conclude that these biases would have provided a basis for striking these two jurors for cause-and because these individuals were allowed on the jury, the fairness of the trial has been affected (under McDonough Power Equipment v. Greenwood, 104 S.Ct. 845 (1984)).

         Plaintiffs' Arguments

         Plaintiffs counter that “there is no evidence of juror misconduct[, ] [t]here is absolutely no evidence that any of the jurors ever answered any of questions untruthfully or that they intentionally withheld material information in response to any question, ” or that “any jurors' responses would rise to establish cause.” Doc. No. 111 at p. 1.

         In support, Plaintiffs submitted a declaration from the foreperson-juror, wherein she states she did not withhold information during jury selection and does not harbor bias against police officers generally or, specifically, Officer Shipman or the City of Fresno. Doc. No. 118-1. She denied Defendants' allegations that she has close ties to the Tulare decedent's family or the ex-mayor of Tulare. Id. at ¶¶ 5-9. She provided more detail about a negative incident with Tulare P.D. eluded to during voir dire, which she stated concerned a bicycle incident with her father and not the Tulare officer-involved shooting (as Defendants alleged). Id. at ¶ 8. Plaintiffs also provided a declaration from the mother of the deceased in the Tulare incident (whom Plaintiffs' Counsel also represents), wherein she stated she does not know the foreperson-juror and is not related to her. Doc. No. 113. In sum, Plaintiffs contend Defendants' allegations of bias for this juror are merely speculative, and argue this juror answered all voir dire questions truthfully.

         For the city-manager-juror, Plaintiffs argue the news reports merely show that he knew the mayor and ex-police chief, which they contend is not uncommon given the juror's duties as city manager. Doc. No. 111. Plaintiffs submitted a declaration from this juror as well, wherein he also stated that he harbors no bias against the police, Officer Shipman, or the city of Fresno, that he does not have “a personal campaign to reform law enforcement, ” and that he otherwise did not withhold information during voir dire. Doc. No. 118-2. The juror denied any conspiratorial relationship with the ex-mayor of Tulare, and asserts this ex-mayor actually voted in favor of firing him. Id. at ¶¶ 5-7. The juror also declared his firing of the Tulare police chief had nothing to do with the Tulare officer-involved shooting, that this chief had been on administrative leave for a separate incident, and that he believed the officers in the Tulare incident acted appropriately. Id. at ¶ 9. Based on this declaration, Plaintiffs contend Defendants' arguments here are also speculative.

         Finally, Plaintiffs point out both jurors stated in voir dire they would remain fair and impartial, did not answer any of the Court's questions untruthfully. Further, Plaintiffs argue that had Defendants believed these two jurors were biased, they could have questioned either of them after the Court finished its initial examination. Plaintiffs contend that the foreperson-juror mentioned a negative experience with Tulare police, and the city-manager-juror stated he had “business relationships” with Tulare as the former city manager. Plaintiffs thus conclude Defendants have not shown that either juror answered a material question dishonestly during voir dire, or that any of these factual allegations would have provided a basis for a cause strike.

         Legal Standard - Juror Misconduct

         The Constitution guarantees all defendants a verdict by impartial and indifferent jurors, and as the Ninth Circuit has stated, “[t]he bias or prejudice of even a single juror would violate [a litigant's] right to a fair trial.” Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998) (en banc). The presence of a biased juror is structural error, mandating a new trial. Estrada v. Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008).

         The Ninth Circuit recognizes three forms of juror bias: (1) actual bias, which stems from a pre-set disposition not to decide an issue impartially; (2) implied (or presumptive) bias, which may exist in exceptional circumstances where, for example, a prospective juror has a relationship to the crime itself or to someone involved in a trial, or has repeatedly lied about a material fact to get on the jury; and (3) so-called McDonough-style bias, which turns on the truthfulness of a juror's responses on voir dire where a truthful response would have provided a valid basis for a challenge for cause.” United States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013). Here, Defendants proffer their arguments under the McDonough framework, which requires the movant to show (1) the juror failed to honestly answer a voir dire question, and (2) a correct response would have provided a valid basis for a challenge for cause. 464 U.S. at 556.

         The first prong of McDonough-whether a juror was dishonest-“is a question of fact.” Fields v. Brown, 503 F.3d 755, 767 (9th Cir. 2007) (en banc) (citing Dyer, 151 F.3d at 973); Patton v. Yount, 467 U.S. 1025, 1038 (1984) (“The assessment of juror bias is essentially one of credibility[.]”); see also Skilling v. United States, 561 U.S. 358, 386 (2010) (describing a trial judge's appraisal to be “ordinarily influenced by a host of factors . . . [including] inflection, sincerity, demeanor, candor, body language, and apprehension of duty.”). Thus, the Supreme Court has often stated that “[t]he remedy for allegations of juror partiality is a hearing in which the [moving party] has the opportunity to prove [] bias.” Smith v. Phillips, 455 U.S. 209, 215; but see United States v. Angulo, 4 F.3d 843, 847 (9th Cir. 1993) (“An evidentiary hearing is not mandated every time there is an allegation of jury misconduct or bias. Rather, in determining whether a hearing must be held, the court must consider the content of the allegations, the seriousness of the alleged misconduct or bias, and the credibility of the source.”).

         As for the second McDonough prong, “[t]he central inquiry in determining whether a juror should be removed for cause is whether that juror holds a particular belief or opinion that will ‘prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath.” United States v. Hayat, 710 F.3d 875, 885 (9th Cir. 2013); see also Young v. Gipson, 163 F.Supp.3d 647 (N.D. Cal. 2015) (framing the second prong of the McDonough test as whether the juror's failure to answer honestly “undermined the impartiality of the petitioner's jury.”) (citing Dyer, 151 F.3d at 973). “To disqualify a juror for cause requires a showing of either actual or implied bias-‘that is . . . bias in fact or bias conclusively presumed as a matter of law.'” United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir. 2000). Actual bias is defined as “the existence of a state of mind that leads to an inference that the person will not act with entire impartiality.” United States v. Mitchell, 568 F.3d 1147, 1151 (9th Cir. 2009); Gonzalez, 214 F.3d at 1112. “Actual bias is typically found when a prospective juror states that he cannot be impartial or expresses a view adverse to one party's position and responds equivocally as to whether he could be fair and impartial despite that view.” Fields, 503 F.3d at 767. While actual bias may be revealed by a juror's explicit admissions, more typically it is demonstrated through circumstantial evidence. Gonzalez, 214 F.3d at 1112. Implied bias, on the other hand, is found “in those extreme situations ‘where the relationship between a prospective juror and some aspect of the litigation is such that it is highly unlikely that the average person could remain impartial in his deliberations under the circumstances.” Fields, 503 F.3d at 770.

         Despite these three ways to examine juror misconduct, only concealment for “reasons that affect a juror's impartiality can truly be said to affect the fairness of a trial.” McDonough, 464 U.S. at 556.

         Analysis

         A. Statements from jurors concerning deliberations cannot be considered for purpose of whether any jurors lied during voir dire.

         The Court will first take up issues with the declarations made by the three jurors. Doc. Nos. 114-4, 118-1, and 118-2. Both Defendants and Plaintiffs have lodged these declarations in apparent support of their contentions that two of the jurors did/not attempt to hide their bias during voir dire. Also, during the evidentiary hearing, the parties at times questioned the three jurors about discussions during deliberations. The main thrust of these statements/questions concerns whether the two allegedly-biased jurors discussed the Tulare officer-involved shooting during deliberations. However, by the plain command of the Supreme Court, these statements cannot be considered by the Court in deciding whether the two jurors lied during voir dire. Warger v. Shauers, 135 S.Ct. 521, 525 (2014) (“We hold that Rule 606(b) applies to juror testimony during a proceeding in which a party seeks to secure a new trial on the ground that a juror lied during voir dire.”) (abrogating Hard v. Burlington Northern Railroad, 812 F.2d 482 (9th Cir. 1987), which stood for the now-defunct proposition that juror affidavits about a juror's conduct in deliberations could be used to question that juror's voir dire answers); see also U.S. v. Leung, 796 F.3d 1032, 1036 (9th Cir. 2015) (“[P]arsing how jurors considered the evidence or their mental states while hearing testimony is exactly what [] the plain text of Rule 606(b) seek to prevent.”).

         Having disposed of this issue, the Court turns to the remaining evidence and testimony concerning the two allegedly-biased jurors' voir dire answers.

         B. The Foreperson-Juror did not answer voir dire questions dishonestly.

         Under the first McDonough prong, Defendants must show the foreperson-juror failed to answer honestly a material question during voir dire. 464 U.S. at 556. The Ninth Circuit has held that “a voir dire question is material when the honest response would reflect bias, prejudice or partiality against a party.” See Coughlin v. Tailhook Ass'n, 112 F.3d 1052, 1061 (9th Cir. 1997). “Under McDonough, a new trial is warranted only if the district court finds that the juror's voir dire responses were dishonest, rather than merely mistaken, and that her reasons for making the dishonest response call her impartiality into question.” Pope, 209 F.3d at 1164. Dishonesty is akin to being intentionally untruthful, not mere forgetfulness or misunderstanding. Hamilton v. Ayers, 583 F.3d 1100, 1107 (9th Cir. 2009) (omissions on voir dire were inadvertent, not intentional); see also Price v. Kramer, 200 F.3d 1237, 1254-55 (9th Cir. 2000) (no McDonough-style bias where a juror's omissions “constituted an innocent oversight.”); Gonzales v. Thomas, 99 F.3d 978, 984 (10th Cir. 1996) (emphasizing that first prong of the McDonough test “is directed at intentionally incorrect, ” rather than mistaken, responses); United States v. Edmond, 43 F.3d 472, 474 (9th Cir. 1994) (no juror misconduct where district court found juror's testimony-that he forgot about being victim of armed robbery-truthful).

         Here, as to the foreperson-juror, the Court finds Defendants have not met their burden on the first element of McDonough-style bias. On the first day of trial, the Court questioned the jurors extensively about their backgrounds, general knowledge about the case, and any potential predispositions that would affect their service. See Doc. No. 99-3. The foreperson-juror stated she did not know anything about the case (Id. at 83), and while she generally knew several police officers and had discussed their experiences with them, it would not affect her service as a juror (Id. at 114 and 119). The Court then asked whether “[each juror], a family member, or a close friend [had] any exposure to law enforcement that [they] would consider negative, adverse or whatever.” Id. at 85-86. The following exchange then occurred:

Foreperson-Juror: Yes. I have experienced some negative, I guess, contact with police officers personally and with family members, but I don't believe it would affect my decision-making.
The Court: Okay. Did that involve the Fresno Police Department?
Foreperson-Juror: One of them did, and the other was the Tulare Police Department.
The Court: On the Fresno Police Department, how long ago was that?
Foreperson-Juror: Probably 12 years ago.
The Court: Okay.
Foreperson-Juror: I'm sorry. It was not the Fresno Police Department. It was the California Highway Patrol.
The Court: All right. And, again, I don't want any detail on this next question, but did any of those ever wind up in the court system?
Foreperson-Juror: No.
The Court: Anything about that experience that would affect your service as a juror here today?
Foreperson-Juror: No, but I will say that there was a formal complaint that I filed against that police officer.
The Court: Do you know how that followed up, if at all?
Foreperson-Juror: They called me and apologized for how he acted, told me they were investigating. And then about six months later, I received a letter in the mail that said they couldn't find anything that he had done wrong.
The Court: Did that concern you, bother you, or upset you to the extent that it would affect your service as a juror here today?
Foreperson-Juror: No, because I don't know what happened. So I wouldn't make a decision before hearing any evidence.

Id. at 86-87. This exchange, as well as others with the foreperson-juror during voir dire, demonstrate she was not attempting to conceal any negative experiences with the police. She was forthcoming in her responses concerning the Fresno P.D., and mentioned the Tulare P.D. incident. Further, the foreperson-juror stated in her declaration (and reiterated at the evidentiary hearing) that the Tulare P.D. incident she referred to concerned her father being handcuffed while on his bicycle-and not the recent officer-involved shooting in Tulare. Doc. No. 118-1 at ¶ 8. The foreperson-juror forcefully denied Defendants' allegations that she was a close friend of the deceased in the Tulare shooting, stating she only knew of him as her deceased-brother's friend and through news articles. See Doc. 118-1 at ¶¶ 5-6. Patton, 467 U.S. at 1038 (The assessment of juror bias is “essentially one of credibility, and therefore largely one of demeanor.”); Elmore v. Sinclair, 799 F.3d 1238, 1253 (9th Cir. 2015) (juror believed responses to voir dire questions were accurate, thus no claim of juror bias under McDonough existed); Smith v. Swarthout, 742 F.3d 885, 893 (9th Cir. 2014) (juror's explanation of why he didn't mention a particular issue was credible, thus the McDonough bias claim fails); see also U.S. v. Nava-Arellano, 639 Fed.Appx. 512 (9th Cir. 2016) (finding claim of juror bias failed where it was “purely speculative”).

         Additionally, Defendants assert the foreperson-juror should have disclosed her relationship with the ex-mayor of Tulare-as evinced by her status as “friends” on her social media page (See Doc. No. 114-5)-when the Court asked whether any of the jurors “had any dealings or exposure with the City of Fresno, not just the Police Department, but the City of Fresno itself, any of its employees, or whatever?”. 99-3 at 88:2-5. At the evidentiary hearing, however, this juror acknowledged her acquaintance with the ex-mayor of Tulare, but stated she only knew him through her late brother and through news reports of his being the first African-American mayor of that city. See Doc. No. 126-1 at 52:17-20; 53:15-22; 54:5-9; 55:5-9; 55:25-56:2; 60:1-5. The Court finds this juror's testimony about her relationship with the ex-mayor to be credible, and finds the social-media friendship to be too tenuous a connection to find that this juror lied. Simply, the Court asked if she knew any Fresno city employees, but there is no evidence the juror knew the ex-mayor as a Fresno firefighter-and the Court is hesitant to say that being social-media friends implies that one person knows the details of another's life; this is especially true where the social-media friendship was as tenuous as it was here. Thus, the Court finds the juror's assertions as to the ex-mayor credible, and finds Defendants' contentions on these issues to be speculative. Patton, 467 U.S. at 1038 (regarding credibility); Elmore, 799 F.3d at 1253 (juror believed responses to voir dire questions were accurate, thus no claim of juror bias under McDonough existed); Swarthout, 742 F.3d 885, 893 (9th Cir. 2014) (juror's explanation of why he didn't mention a particular issue was credible, thus the McDonough bias claim fails); see also Nava-Arellano, 639 Fed.Appx. 512 (finding claim of juror bias failed where it was “purely speculative”).

         Even assuming arguendo that the foreperson-juror should have disclosed her familiarity with the Tulare incident when the court asked about “negative, adverse” interactions with the police, the Court finds this alone was no basis to strike this juror for cause. The foreperson-juror, in her declaration (and again at the evidentiary hearing) stated she made no connection between the Tulare incident and this case, did not harbor any bias toward police officers, and otherwise reaffirmed that she answered all voir dire questions truthfully, honestly, and accurately. Doc. No. 118-1 at ¶¶ 12-14. These assertions, which the Court finds credible, do not provide a basis for a finding of actual bias-even despite the foreperson-juror's knowledge and discussion of the Tulare incident. See Fields, 503 F.3d at 766 (Actual bias “stems from a pre-set disposition not to decide an issue impartially.”); see also Roybal v. Davis, 148 F.Supp.3d 958, 1038 (S.D. Cal. 2015) (juror's personal experiences about issues similar to those in the case not a basis for a finding of actual bias, where no evidence existed that these discussions impacted his ability to act as a fair and impartial juror). Further, the foreperson-juror's knowledge of another officer-involved shooting, coupled with her now-deceased older brother's high-school relationship with the ex-mayor of a nearby city, is not nearly of the kind where the Court can imply bias. See Olsen, 704 F.3d at 1192-95 (describing the line between those “incontrovertible” instances where the juror lied during voir dire and those where a juror was mistaken in his answers to a couple questions); Tinsley v. Borg, 895 F.2d 520, 528-29 (9th Cir. 1990) (collecting cases where “courts have declined to find implied bias when a juror was personally acquainted with a witness provided no actual bias existed.”).

         Finally, the Court notes that had Defendants been suspicious of the foreperson-juror's experiences with Tulare police, they could have inquired further, as this juror did indicate a negative experience with Tulare P.D. This line of questioning would not have proven fruitful, given the foreperson-juror's explanation of what happened with her father and a Tulare officer, but the Court mentions it to remind Defendants of their burden to root out issues in voir dire. Sanders v. Lamarque, 357 F.3d 943, 947-50 (9th Cir. 2004) (“[T]he record demonstrates that any failure by the prosecution to discover information regarding [juror's background] was due to its own lack of diligence and not any concealment or deliberate withholding of information by [the juror].”); see also United States v. Santos, 501 Fed.Appx. 630, 633 (9th Cir. 2012) (“The record shows that the jurors who were related, albeit distantly, to some of the witnesses answered the questions asked of them honestly. The defense attorneys could have requested further inquiry, but they did not.”). The Court finds the foreperson-juror's testimony on these issues credible, and so denies Defendants motion for new trial on the allegations of juror misconduct for the foreperson-juror.

         C. The city-manager-juror did not divulge the information about his former employment because it was irrelevant to the questions asked.

         Defendants also allege the city-manager-juror harbors extremely prejudicial views against police officers, such that his impartiality was affected. In support, Defendants supplied the court with news articles from local publications detailing an officer-involved shooting in Tulare in the spring of 2018. Doc. No. 99-2. The articles detail the city-manager-juror's firing of the Tulare police chief during the time when people were protesting the city and police over the officer-involved shooting. See Id. The articles also note the Tulare city council's firing of the city-manager-juror hours after he fired the police chief. See Id. Defendants also submitted excerpts from depositions in an employment discrimination suit brought by the fired police chief against the city, detailing two individual's perspectives on the allegedly-conspiratorial-and-collusive relationship between the city-manager-juror and ex-mayor of Tulare. See Doc. Nos. 114-2 and -3. If true, this evidence could have provided a basis for striking the city-manager-juror for cause, as it could demonstrate his unwarranted bias against police officers. Gipson, 163 F.Supp.3d at 731 (finding implied bias where juror in question has had some personal experience that was “similar or identical to the fact pattern at issue.”); Dyer, 151 F.3d at 979 (lying during jury selection proceedings gives rise to an inference of implied juror bias); U.S. v. Allsup, 566 F.2d 68 (9th Cir. 1977) (prospective jurors who worked for a bank should have been excused for cause in bank robbery trial because of “the substantial probability that these prospective jurors, despite their disclaimers, could not become the ‘indifferent jurors which the Constitution guarantees a criminal defendant.”); see also McDonough, 464 U.S. at 554 (“Demonstrated bias in the responses to questions on voir dire may result in a juror being excused for cause . . . The necessity of truthful answers by prospective jurors if this process is to serve its purpose is obvious.”). There were numerous times where the Court inquired as to the jurors' relationships and experience with law enforcement or Fresno City personnel.[5] These questions should have prompted any negative experiences such as the ones Defendants allege. The question is, then, under the first prong of McDonough, should this juror have disclosed his alleged-experiences as a city manager, his relationship with the ex-mayor of Tulare, his firing of the Tulare police chief, and his own firing, when asked during voir dire about negative experiences with police? Unfortunately for Defendants, upon examining the issues closely, their allegations of this juror's bias appear speculative and argumentative.

         In the city-manager-juror's declaration, he stated (and reiterated at the evidentiary hearing) that he “did not release the chief of police for the City of Tulare because of the [] officer involved shooting. In fact, there was an interim police chief that was assigned at the time [of the shooting]. The chief that I released was actually already on administrative leave [for unrelated reasons] for several months when the shooting [] occurred[.]” Doc. No. 118-2 at ¶ 9. The juror stated he harbors no bias against police officers generally, against Officer Shipman, or against the City of Fresno. Id. at ¶ 3; Doc. No. 126-1 at 10:13-22; 28:15-17; 30:22-31:3; 41:25-42:3. The Court finds the juror's assertions about his background and experiences as a city manager-that the firing had no connection to the Tulare shooting-to be credible, and finds Defendants' allegations on this juror's bias to be speculative. Swarthout, 742 F.3d at 893 (upon further questioning of a juror who initially remained silent during voir dire, the district court determined the juror's explanation for remaining silent was credible-credibility finding upheld on appeal); Price, 200 F.3d at 1254 (upholding credibility determination of district court in post-trial juror-bias hearing, where juror's failure to mention relationship and prior experiences with issue was an “innocent oversight.”); see also United States v. Chandler, 658 Fed.Appx. 841 (2016) (affirming court's credibility determination of juror-weighing in favor of non-movant); Hurtado v. Sherman, 669 Fed.Appx. 410 (2016) (same).

         Additionally, this juror also stated at the evidentiary hearing that sometime after he was chosen for the panel, he reflected on his surprise that he was picked because of the firings. See Doc. No. 126-1 at 39:7-10. This testimony does not affect the Court's credibility determination and holding concerning whether this juror lied during voir dire. Simply, the Court reads the juror's testimony as indicating a later reflection on his selection to the panel; his candor does not directly evince an active attempt on the juror's part to deceive during voir dire, nor does it circumstantially evince a bias that would have provided either party cause to strike (given that the underlying issue-the police chief's firing after extended administrative leave-shared no connection with the facts of Casillas's case). See Skilling, 561 U.S. at 386 (describing a trial judge's appraisal to be “ordinarily influenced by a host of factors . . . [including] inflection, sincerity, demeanor, candor, body language, and apprehension of duty.”); see also Jackson v. City of Pittsburg,518 Fed.Appx. 518, 521 (9th Cir. 2013) (no new trial ...


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