Emelito Exmundo v. Bell ( 2018 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUL 6 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
EMELITO EXMUNDO, No. 14-16757
Plaintiff-Appellant, D.C. No. 1:06-cv-00205-AWI-DLB
v.
MEMORANDUM*
BELL, C/O; B. JOHNSON,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of California
Anthony W. Ishii, District Judge, Presiding
Submitted [PLACEHOLDER], 2018**
Before: THOMAS, Chief Judge, and HAWKINS and McKEOWN, Circuit Judges.
California state prisoner Emelito Exmundo appeals pro se from the judgment
entered following an adverse jury verdict in this 42 U.S.C. § 1983 action. We have
jurisdiction under 28 U.S.C. § 1291, and we affirm.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
1. It was not error to deny Exmundo’s challenge for cause regarding several
jurors, who indicated that they knew persons involved in law enforcement. The
district court specifically questioned those jurors, and all responded that they could
be impartial. The record does not demonstrate that the district court’s finding that
these jurors could be impartial was manifestly erroneous. See Skilling v. United
States, 561 U.S. 358, 396–99 (2010) (no manifest error by finding that juror who
stated she thought she could be impartial was fit for trial); see also Tinsley v. Borg,
895 F.2d 520, 529 (9th Cir. 1990) (jurors are not presumed to be biased solely because
they work in law enforcement).
2. Nor did the district court abuse its discretion in its supervision of the trial.
See Citicorp Real Estate, Inc. v. Smith, 155 F.3d 1097, 1102 (9th Cir. 1998).
Exmundo was granted additional time to prepare his closing argument. Although
Exmundo contends on appeal that he should have been granted a longer continuance,
he made no such request to the district court and has not demonstrated a clear abuse
of discretion. See id. Similarly, it was not an abuse of discretion to inform the jury
about Exmundo’s missing exhibit rather than continuing the trial indefinitely. See id.Exmundo did not suggest during the trial that he could obtain a replacement copy of
the document or that he would otherwise be able to find the document if the court
continued the trial.
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3. Exmundo next argues, for the first time, that the jury instruction regarding
excessive force was inadequate because it did not define the terms “sadistically” and
“maliciously.” We review this contention for plain error, see Chess v. Dovey, 790
F.3d 961, 970 (9th Cir. 2015), and determine there was none. The instruction “fairly
and adequately cover[ed] the issues presented, correctly state[d] the law, and [was]
not misleading.” Chuman v. Wright, 76 F.3d 292, 294 (9th Cir. 1996). The terms
“sadistically” and “maliciously” are commonly understood terms, and the instruction
informed the jurors of the specific factors to consider when determining whether the
officers’ conduct constituted excessive force. See United States v. McCaleb, 552 F.3d
1053, 1059 (9th Cir. 2009). Under the circumstances, there was no plain instructional
error. See id.
4. We reject as unsupported by the record Exmundo’s allegations of judicial
bias.
5. Exmundo’s remaining contentions regarding the jury venire and prejudicial
errors during the trial are vague, unsupported by the record, and were not specifically
and distinctly raised and argued before the district court or in the briefing on appeal.
Therefore, we do not consider them. See Padgett v. Wright, 587 F.3d 983, 985 n.2
(9th Cir. 2009).
Exmundo’s motion to strike the answering brief (Docket Entry No. 34) is
denied.
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AFFIRMED.
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