Westfall v. Luna ( 2022 )

Case: 21-10159 Document: 00516430308 Page: 1 Date Filed: 08/12/2022
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
August 12, 2022
No. 21-10159
Lyle W. Cayce
Clerk
Constance Westfall,
Plaintiff—Appellant,
versus
Jose Luna, Southlake Police Department Officer, In His
Individual Capacity; Nathaniel Anderson, Southlake
Police Department Officer, In His Individual Capacity;
Venessa Trevino, Southlake Police Department
Officer, In Her Individual Capacity,
Defendants—Appellees.
Appeal from the United States District Court
for the Northern District of Texas
No. 4:15-CV-874
Before Dennis, Southwick, and Wilson, Circuit Judges.
Per Curiam:*
Treating the petition for rehearing en banc as a petition for panel
rehearing, the petition for panel rehearing is GRANTED. See 5TH CIR. R.
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
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35 I.O.P. Because no member of the panel or judge in regular active service
requested that the court be polled on rehearing en banc, the petition for
rehearing en banc is DENIED. See FED. R. APP. P. 35; 5TH CIR. R. 35. Our
prior panel opinion, Westfall v. Luna, No. 21-10159, 2022 WL 797410 (5th
Cir. Mar. 15, 2022) (unpublished), is WITHDRAWN and the following
opinion is SUBSTITUTED therefor:
Following a dispute between Southlake Police Department (the
“Department”) officers and the Westfall family at the Westfall’s residence,
Constance Westfall (“Constance” or “Westfall”) filed suit in the Northern
District of Texas, bringing claims against several defendants connected with
the Department. The district court initially granted summary judgment in
favor of all defendants on all claims and determined that Officers Trevino,
Anderson, and Luna, the defendants at issue in this appeal, were entitled to
qualified immunity. However, on appeal this court remanded Westfall’s
claims against Trevino, Anderson, and Luna to the district court for trial,
holding that there existed three genuine disputes of material fact which
precluded summary judgment, including, as relevant here, whether a
reasonable officer could conclude that the “‘knock and talk’” nature of the
encounter affected the consent that was allegedly given. Westfall v. Luna, 903
F.3d 534, 545 (5th Cir. 2018) (Westfall I). Accordingly, on remand, the
parties tried their case before a jury. After presentation of evidence and
argument, the jury found that none of the defendants had violated the
Constitution in any of the manners alleged by Westfall. Westfall filed a
motion for judgment as a matter of law and a motion for new trial. The
district court denied those motions, reasoning that legally sufficient evidence
existed to support the jury’s verdict and that Westfall failed to show that any
harmful error had occurred which would entitle her to a new trial. Westfall
now appeals.
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I. Background
At approximately 1:54 a.m. on January 11, 2014, the Southlake Police
Department received a call reporting a trespass. Officer Trevino responded
and was told by the complainant that two teenage boys, including a boy
identified by name who lived next door (“WW”), had entered her home
without permission. The complainant said that the boy had been looking for
a “grinder,” which Trevino understood to mean a marijuana grinder. The
complainant’s boyfriend told Trevino that the boys went into a residence
next door (the “Westfall residence”). While waiting for backup, Trevino
observed multiple juveniles in a lit room upstairs in the Westfall residence.
Officer Anderson arrived shortly after and was briefed by Trevino about the
juveniles seen in the Westfall residence.
At approximately 2:15 a.m., Trevino and Anderson knocked on the
front door of the Westfall residence. Constance Westfall (“Constance” or
“Westfall”) opened the door. Trevino identified herself and disclosed that
WW entered someone’s house without permission. Constance responded
that she had been asleep, explained that WW was her son, and asked what the
Officers wanted from him. Anderson asked Constance to check if WW was
home. Constance nodded her head but then either “closed” or “slammed”
the door. Anderson looked through a glass window, saw Constance retreat
toward the master bedroom (rather than go upstairs to fetch WW), and told
Trevino, “she [is] going to get back in bed.” Trevino testified that she
suspected that Constance was not going to get her son.
After approximately four minutes, Constance did not come back to
the door, so Anderson instructed Trevino to knock again. Trevino knocked
more forcefully this time. Anderson testified that the purpose of this more
forceful knock was to “get” Constance’s “attention” so that she would
“come back.” The Officers still did not get a response.
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Trevino notified dispatch that Constance “wasn’t coming back to the
door” and instructed dispatch to call the Westfall residence. Dispatch called
the residence twice. Someone answered the first call, but immediately hung
up. The second call was answered by WW, who was told by dispatch to go
to the door. Around this time, Corporal Luna (“Luna”) had arrived,
approached the front door of the residence, and knocked directly onto the
glass of the door (instead of the wooden frame). Luna testified that, because
of the size of the Westfalls’ house, “we do knock a little louder than most.”
Eventually, WW, another teenage boy, and Monte Westfall (“Monte”),
Constance’s husband, exited the house. They were later joined by a third
boy. It was 44 degrees outside, and Trevino and Anderson began questioning
the three minor boys. During the questioning, Trevino and Anderson
smelled marijuana from the boys and asked them about the presence of
marijuana.
While the officers were questioning the boys, Constance exited her
house. Anderson accused Constance of slamming the door in his face and
told Trevino that he would not speak to Constance anymore because she
“hung up in 911’s face.” Constance said she did not slam the door, but rather
closed it because it was cold outside. She twice asked the officers to come
inside, saying that she was legally blind without her glasses and could not see
who was “out there,” but the officers declined. Eventually, the boys
admitted to the officers that there was marijuana in the Westfall residence.
Anderson explained to Monte that the officers knew there were illegal drugs
in the house and that, with Monte’s permission, the officers would go
upstairs and confiscate it. Anderson suggested that one of the boys take them
to the drugs upstairs. Monte nodded his head in agreement and Constance
said, “[WW], you go get it.” WW entered the house first, followed by
Monte, who was followed by Anderson.
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Anderson testified that, as he approached the door, Constance
“abruptly walked at [him] in an aggressive manner at a fast pace.” Anderson
warned her to not “walk up on” him. Constance responded, “I’ll do what I
want!” Luna intervened, instructed Constance to get back, and warned her
that she would be put in handcuffs if she did not “stop.” Trevino and Luna
both told Constance that she would be arrested for interfering with police
duties and needed to calm down. According to defendants, Constance
replied, “You’ve got to be kidding. I’m the one who said you could go up
there.” 1 Luna then “brought [Constance] to the ground.”
During the few minutes that Constance was pinned, Anderson was in
the Westfall residence and retrieved a metal tin containing about 2.5 grams
of marijuana from inside of the house. Then, Luna and Trevino handcuffed
Constance and placed her in a police car. She was charged with interference
with public duties under Texas Penal Code § 38.15, though the charges were
ultimately dropped. 2
Westfall brought various claims under 42 U.S.C. § 1983. The only
claim relevant to this appeal is her false arrest claim. In Westfall I, our court
reversed a grant of summary judgment in favor of the officers and held that
the merits of Westfall’s false arrest claim depend on whether the officers
believed they had valid consent to enter the Westfall residence to confiscate
the marijuana. If they did not have valid consent, then they were not
performing a duty or exercising authority “imposed or granted by law,” so
1
The parties disputed whether Constance said, “I’m the one who said you could
go up there” or “I don’t want you people to go up there.” However, it is not contested on
appeal that the jury could have found that she uttered the former statement.
2
Texas Penal Code § 38.15(a) provides: “A person commits an offense if the
person with criminal negligence interrupts, disrupts, impedes, or otherwise interferes with
. . . (1) a peace officer while the peace officer is performing a duty or exercising authority
imposed or granted by law.”
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any interference with their search by Constance could not have violated
Texas Penal Law § 38.15. See Westfall I, 903 F.3d at 544-46.
On remand, the case was tried before a jury, which returned a verdict
for the defendant officers. The district court denied Westfall’s motions for
judgment as a matter of law and for a new trial. This appeal followed.
II. Standard of Review
“We review de novo the district court’s denial of a motion for
judgment as a matter of law, applying the same standards as the district
court.” Abraham v. Alpha Chi Omega, 708 F.3d 614, 620 (5th Cir. 2013)
(citing Ill. Cent. R.R. Co. v. Guy, 682 F.3d 381, 392–93 (5th Cir. 2012)).
Judgment as a matter of law is proper if “a party has been fully heard on an
issue during a jury trial and . . . a reasonable jury would not have a legally
sufficient evidentiary basis to find for the party on that issue.” Fed. R.
Civ. P. 50(a)(1). “[W]e view all evidence and draw all reasonable
inferences in the light most favorable to the verdict.” Pineda v. United Parcel
Service, Inc., 360 F.3d 483, 486 (5th Cir. 2004) (citing Thomas v. Tex. Dept. of
Crim. Just., 220 F.3d 389, 392 (5th Cir. 2000)). The moving party can
prevail only “[i]f the facts and inferences point so strongly and
overwhelmingly in favor of the moving party that the reviewing court believes
that reasonable jurors could not have arrived at a contrary verdict[.]” Poliner
v. Tex. Health Sys., 537 F.3d 368, 376 (5th Cir. 2008) (internal quotation
marks omitted) (quoting Dixon v. Wal-Mart Stores, Inc., 330 F.3d 311, 313–14
(5th Cir. 2003)). “After a jury trial, our standard of review is ‘especially
deferential.’” Brown v. Suddith, 675 F.3d 472, 477 (5th Cir. 2012) (quoting
Brown v. Bryan Cnty., Okla., 219 F.3d 450, 456 (5th Cir. 2000)).
We review the denial of a motion for a new trial under an “abuse of
discretion standard.” Olibas v. Barclay, 838 F.3d 442, 448 (5th Cir. 2016).
“The district court abuses its discretion by denying a new trial only when
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there is an ‘absolute absence of evidence to support the jury’s verdict.’”
OneBeacon Ins. Co. v. T. Wade Welch & Assocs., 841 F.3d 669, 676 (5th Cir.
2016) (internal quotation marks omitted) (quoting Wellogix, Inc. v. Accenture,
L.L.P., 716 F.3d 867, 881 (5th Cir. 2013)). “If the evidence is legally
sufficient, we must find that the district court did not abuse its discretion in
denying a motion for new trial.” Id. (citing Cobb v. Rowan Cos., Inc., 919 F.2d
1089, 1090 (5th Cir. 1991).
III. Discussion
A.
Westfall argues that defendants failed to present sufficient evidence
to support a finding that Anderson’s entry and removal of the tin with
marijuana from the house was lawful; thus, she argues, there was insufficient
evidence to support the jury’s verdict, and the district court erred in denying
her motion for judgment as a matter of law. However, Westfall does not
dispute on appeal that there was sufficient evidence for a jury to find that the
officers obtained voluntary consent from both herself (when she told WW to
“go get it”) and Monte (when he nodded and went into the house after
Anderson requested to go inside to collect the marijuana). Thus, the
lawfulness of the officers’ search depends on two remaining questions: (1)
whether “[t]he officers’ knock-and-talk conduct” was “unreasonable,” and,
if so, (2) whether the subsequent consent obtained from the Westfalls was an
“independent act of free will” sufficiently attenuated from an unlawful
knock-and-talk. Westfall I, 903 F.3d at 545.
“We have recognized the knock-and-talk strategy as ‘a reasonable
investigative tool when officers seek to gain an occupant’s consent to search
or when officers reasonably suspect criminal activity.’” Id. (quoting United
States v. Jones, 239 F.3d 716, 720 (5th Cir. 2001)). “We have held, however,
that ‘the purpose of a “knock and talk” is not to create a show of force, nor
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to make demands on occupants, nor to raid a residence. Instead, the purpose
is to make an investigatory inquiry or, if officers reasonably suspect criminal
activity, to gain the occupants’ consent to search.’” Id. (cleaned up)
(quoting United States v. Gomez-Moreno, 479 F.3d 350, 355 (5th Cir.
2007), overruled on other grounds by Kentucky v. King, 563 U.S. 452, 131 S. Ct.
1849, 179 L.Ed.2d 865 (2011)). “When no one answers the door despite
knocking, ‘officers should end the “knock and talk” and change their
strategy by retreating cautiously, seeking a search warrant, or conducting
further surveillance.’” Id. (cleaned up) (quoting Gomez-Moreno, 479 F.3d at
356).
Contrary to Westfall’s argument, the lateness of the hour did not
render the officers’ knock-and-talk unlawful per se. Although a 2:15 a.m.
knock on one’s door will usually transgress background social norms, this
case involved a 911 call alleging trespass; the trespassers were believed to be
in the Westfall residence; and the officers visually observed youths in a lit
room upstairs, indicating that they were not asleep. Under the
circumstances, a reasonably respectful officer might have found it necessary
to knock on the Westfalls’ door, even at this late hour. See United States v.
Staggers, 961 F.3d 745, 759 (5th Cir. 2020) (“That the officers arrived in the
early morning does not necessarily render the knock-and-talk coercive or
unreasonable”).
Furthermore, during the officers’ initial encounter with Constance,
Constance nodded in apparent agreement when they asked her to check on
her son, but closed the door on them without further discussion and was seen
to retreat to her bedroom. Given these mixed signals, it may have been
reasonable for the officers to attempt to re-establish contact with her so that
they could clarify whether she intended to comply. The situation had not yet
ripened into one where Constance made her lack of consent clear, and
Constance’s nodding could have been interpreted as a tentative license for
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the police to remain at the front door. Arguably, a jury could find that it was
reasonable for Trevino to knock a second time, and for the police to place one
call into the residence. See Gomez-Moreno, 479 F.3d at 356 (noting that, after
awaiting a response to their initial knock at the front door, the officers “might
have then knocked on the back door or the door to the back house”). But
Trevino’s second knock went unanswered, and the first dispatch call to the
Westfall residence was hung up on.
Arguably, at that point, the occupants’ continued silence “amounted
to a refusal . . . to answer the door.” See United States v. Jerez, 108 F.3d 684,
691 (7th Cir. 1997). But even if we were to agree that the officers’ further
activities—Luna’s knocking on the glass pane of the door and dispatch’s
second call to the Westfall residence—crossed the line from investigative
inquiry into an unreasonable knock and talk, it would not entitle Westfall to
judgment as a matter of law. For there remains the question of whether a
rational jury could find that Mr. and Ms. Westfalls’ subsequent consents
were “independent act[s] of free will.” Westfall I, 903 F.3d at 545.
To determine whether consent is an “independent act of free will,”
we consider (1) “[t]he temporal proximity” of the violation, (2) “the
presence of intervening circumstances,” and (3) “the purpose and flagrancy
of the official misconduct.” Brown v. Illinois, 422 U.S. 590, 603-604 (1975).
This inquiry is analytically distinct from whether the consent was voluntary.
See United States v. Chavez-Villareal, 3 F.3d 124, 127-28 (5th Cir. 1993).
Although Brown was not a knock-and-talk case, our precedents have
repeatedly cited and applied this three-factor test as authoritative in
determining whether a person’s statements have been purged of the taint of
an unlawful knock-and-talk. See United States v. Cooke, 674 F.3d 491, 496-96
(5th Cir. 2012) (applying “a Brown analysis” to determine whether
defendant’s mother’s “consent attenuated any Fourth Amendment
violation” following officers’ attempt to “conduct a ‘knock and talk’”);
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United States v. Hernandez, 670 F.3d 616, 621, 623 (5th Cir. 2012) (holding
that the district court should have considered “the temporal proximity,”
“the presence of intervening circumstances,” and “the purpose and
flagrancy of the official misconduct” to determine whether defendant’s
“admission was untainted” by “the officers’ conduct during their knock-
and-talk”) (cleaned up) (citing Brown, 422 U.S. at 603); see also Westfall I,
903 F.3d at 545-46 (citing Hernandez’s application of Brown’s “three-factor
test” and holding that the district court should “consider this argument . . .
on remand” to determine “whether Westfall’s alleged consent [after the
knock-and-talk] was an independent act of free will”).
After instructing the jury on the three Brown factors, the district court
further charged the jury:
You may consider situations such as when the officers are rude;
the officers are accusatory; the officers make demands rather
than requests such as by their tone of voice, volume, and
authoritative manner; the officers threaten or yell; the officers
keep individuals exposed to the cold; the officers threaten to
get a warrant and detain the residents outside all night while a
warrant is obtained; and the officers merely demonstrate their
dominance over the individuals.
The court also properly instructed the jury that the burden was on the officers
to prove that the consent they obtained was an independent act of free will.
Westfall does not argue on appeal that these instructions misstated the law
or were otherwise prejudicial.
As to the first Brown factor, it is undisputed that the consents granted
by Mr. and Ms. Westfall were close in time to the knock-and-talk. But this
factor alone is not “determinative.” United States v. Macias, 658 F.3d 509,
523 (5th Cir. 2011).
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The second factor presents a trickier question. We have indicated that
where there is no evidence of coercive police tactics, and the person from
whom consent is sought is adequately informed of the right to refuse consent,
these factors constitute intervening circumstances sufficient to purge the
taint of an unreasonable detention. United States v. Kelley, 981 F.2d 1464,
1471-72 (5th Cir. 1993). But we have also distinguished Kelley where the
officer had already “made known his suspicions about narcotics,” for in such
cases it might appear to the consenting party that refusal would be
“pointless.” Chavez-Villareal, 3 F.3d at 128. Such was the case here;
Anderson arguably informed Monte of his right to deny consent by
requesting entry “with your permission,” but only after he made known to
the Westfalls that the officers knew there were illegal drugs inside.
Nevertheless, we cannot say that this precluded the jury as a matter of law
from finding intervening circumstances. As we stated in United States v.
Richard, 994 F.2d 244 (5th Cir. 1993), abrogated on other grounds by United
States v. Aguirre, 664 F.3d 606 (5th Cir. 2011), this determination depends,
to an extent, on the “atmosphere” of the interaction between the officers and
the consenting party. Richard, 994 F.2d at 252. There, we cited the Tenth
Circuit’s holding in United States v. Mendoza-Salgado, 964 F.2d 993, 1013
(10th Cir. 1992), in which the Court held that a woman who was present when
her husband was arrested had validly consented to a search of her home
“after a short time had passed and all had calmed down.” Richard, 994 F.2d
at 252; see Mendoza-Salgado, 964 F.2d at 1000 (agents testified the wife
“appeared ‘calm, quiet, observing, listening, friendly and cooperative,’
insisted she knew nothing about cocaine and said, ‘go ahead and search’”)
(brackets omitted). In the present case, there is at least some evidence of a
changed atmosphere: the knocks and calls had undisputedly ended;
Constance corrected the officers when they alleged she “slammed” the door;
and Constance, unprompted, twice invited the officers to come inside (which
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they initially declined to do). While these few lines of dialogue might not be
sufficient on their own to show a sufficient cooling of temperatures to purge
the taint of an unlawful seizure, cf. Mendoza-Salgado, 964 F.2d at 1000, 1012-
13, we note as well that the jury was in the best position to assess the overall
rapport between the officers and the Westfalls, having listened to audio
recordings of their exchanges (which are not in the record on appeal). As just
noted, the jury was instructed to consider such factors as whether the officers
were “rude,” their “tone of voice,” and whether they “threaten[ed] or
yell[ed].” Because we are limited to a cold transcript, we are reluctant to
place our own impression of the encounter above what the jury might have
perceived.
As to the third factor, a rational jury could have found that the
officers’ conduct, even if it potentially amounted to an unlawful knock-and-
talk, was not flagrant. As we reaffirmed in Cooke—another knock-and-talk
case—the flagrancy (or lack thereof) of the violation is the “most important”
factor. 674 F.3d at 496. Cooke held that because (1) “the purpose of [the
officers’ entry] was to conduct a ‘knock and talk’ (a common and legitimate
police practice),” (2) the curtilage of the defendant’s residence was
“difficult and nuanced,” and (3) the police did not “use coercive or
deceptive tactics . . . or fail to adequately inform [the consenting party] of her
rights,” the officers’ arguable intrusion on the defendant’s curtilage was
“technical at best and certainly not flagrant.” Id. at 496, see id. at 492-93.
Thus, the Court, applying a “Brown analysis,” held that the consent the
officers received “attenuated any alleged Fourth Amendment violation”
flowing from the “‘knock and talk.’” Id. at 495-96.
Similarly, a jury could find that the officers’ conduct here did not rise
to the level of flagrant misconduct. As noted above, a jury could at least find
that the officers had initial license to knock on the Westfalls’ door in response
to a trespassing complaint. And, viewing the facts in the light most favorable
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to the verdict, Constance’s assent when asked to “check” on WW indicated
that the officers possessed some license to remain at her front door, wait for
her return, and, when she did not do so, attempt to re-establish contact in a
limited and respectful manner. The line was crossed, if at all, after Constance
failed to come back to the door, and only by the cumulative effect of
Trevino’s and Luna’s further knocking and the dispatching of two calls into
the Westfall residence. Regardless of whether all, some, or none of these
further acts were lawful, a jury could find that they were neither significant
nor willful intrusions. Identifying the exact point at which the officers should
have given up and retreated is “difficult and nuanced,” as in Cooke, 674 F.3d
at 496. Moreover, there was no physical restraint of the Westfalls during the
knock-and-talk or at the time consent was given; at least some of the house’s
occupants were already awake during and immediately prior to the knock-
and-talk; and the officers neither used nor threatened violence to rouse the
Westfall family from their home. Cf. Hernandez, 670 F.3d at 618, 623 (finding
knock-and-talk was “egregious,” under Brown analysis, where officers “had
their weapons drawn” and “one of the officers broke the glass pane of the
screen door with a baton”). With regard to the volume of the officers’
knocking, a jury could have credited Luna’s testimony that it was
necessitated by the size of the Westfalls’ home. It is also significant that
Luna knocked on the Westfalls’ door unprompted by the other officers, and
that when he did so he may not have been fully aware of their prior efforts to
reach the house’s occupants.
Weighing the three factors, the jury could therefore have concluded
that Mr. and Ms. Westfalls’ consents were independent acts of free will. In
coming to this determination, we cannot overemphasize the importance of
our standard of review. As long as “there is more than a scintilla of evidence
to support the jury’s verdict,” the verdict must stand. Arismendez v.
Nightingale Home Health Care, Inc., 493 F.3d 602, 609 (5th Cir. 2007).
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Westfall has not shown that the verdict was so lacking in evidentiary support
as to entitle her to judgment as a matter of law.
B.
Westfall argues separately that the district court violated the mandate
rule. “The mandate rule requires a district court on remand to effect [this
Court’s] mandate and to do nothing else.” Gen. Univ. Sys., Inc. v. HAL, Inc.,
500 F.3d 444, 453 (5th Cir. 2007) (internal quotation marks omitted)
(quoting United States v. Castillo, 179 F.3d 321, 329 (5th Cir. 1999), rev’d on
other grounds by Castillo v. United States, 530 U.S. 120 (2000)).
The basis for Westfall’s mandate-rule argument is that the district
court (1) allowed the officers to testify that their conduct was not a “knock
and talk” and instead recharacterize it as an “active investigation,” and (2)
allowed defense counsel to repeat this argument to the jury at summation.
Westfall notes that upon receipt of a jury note asking for clarification of the
law governing an “active investigation,” the district court referred the jury
back to their original instructions.
Notwithstanding Westfall’s attempt to shoehorn her argument into
the “mandate rule,” we review it for what it is: a basic evidentiary objection
to the testimony and arguments the defense was allowed to make to the jury.
“[W]e reverse judgments for improper evidentiary rulings only when a
challenged ruling affects a party’s substantial rights.” DIJO, Inc. v. Hilton
Hotels Corp., 351 F.3d 679, 687 (5th Cir. 2003); see also Bufford v. Rowan Co.,
Inc., 994 F.2d 155, 157 n.1 (5th Cir. 1993) (“Improper comments from the
bench or by counsel will not warrant a reversal unless they so permeate the
proceedings that they impair substantial rights and cast doubt on the jury’s
verdict.”); Longoria by Longoria v. Wilson, 730 F.2d 300, 305 (5th Cir. 1984).
Westfall argues that, because the evidence cannot support a defense
verdict, the jury must have been misled by the improper evidence and
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argument. But as we have already noted above, the properly-admitted
evidence could support a defense verdict, so this argument is unavailing.
Moreover, Westfall does not dispute that the jury charge accurately
stated the law and that further confusion (if any) could have been cleared up
with an additional instruction. As the record makes clear, the district court
gave counsel an opportunity to request such an instruction when it received
the jury note asking about “active investigation[s].” Asked by the court
whether it should “tell the jury that they have all of the information that they
need in the jury charge and the evidence that has been presented to them,”
Westfall’s counsel initially said, “yes.” Counsel then stated that the court
“could potentially address” the “active investigation” issue, but did not
specifically request such an instruction or object when the court referred the
jury to the original charge. See Russell v. Plano Bank & Trust, 130 F.3d 715,
720 n.2 (5th Cir. 1997) (noting that Federal Rule of Civil Procedure 51
requires a party to “make a formal, on-the-record objection” and “state
clearly the grounds for their objection”). Therefore, any argument that the
district court’s curative efforts were inadequate in this case must fail. See
Maldonado v. Missouri Pacific Ry. Co., 798 F.2d 764, 771 (5th Cir. 1986) (“By
acquiescing in the court’s corrective charge, defendant got a chance to see
the verdict and then seek to overturn it. Because of the district court’s
curative instructions, and because defendant chose to gamble on the verdict,
we find that the district court correctly denied defendant’s motion for new
trial”) (internal quotation marks and citation omitted).
IV. Conclusion
For these reasons, we AFFIRM.
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