NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS DEC 16 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
JEANNA ANDERSON, No. 20-17284
Plaintiff-Appellant, D.C. No. 2:16-cv-03563-JJT
v.
MEMORANDUM*
ANTHONY ARMOUR, Jr., husband; et al.,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Arizona
John Joseph Tuchi, District Judge, Presiding
Argued and Submitted December 8, 2021
San Francisco, California
Before: WARDLAW, BRESS, and BUMATAY, Circuit Judges.
Jeanna Anderson sued Officer Anthony Armour Jr. and the City of Phoenix
under 42 U.S.C. § 1983 and Arizona state law, alleging Armour sexually assaulted
her and used excessive force when arresting her during a valid traffic stop. After a
four-day trial, the jury found in favor of the Defendants and answered special
interrogatories indicating no finding of sexual assault. Anderson appeals, arguing
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
that the district court erred in three ways: (1) refusing to give an adverse inference
instruction on a purportedly spoliated recording; (2) precluding evidence of
Armour’s previous instances of alleged assault, including the alleged sexual assault
of a fellow officer; and (3) precluding extrinsic evidence of Armour’s placement
on the county Brady list. We have jurisdiction under 28 U.S.C. § 1291, and we
affirm.
1. The district court did not abuse its discretion in denying Anderson’s
motion for an adverse inference instruction under Federal Rule of Civil Procedure
37(e). Armour used his cell phone to record the period when Anderson was
handcuffed in the police car, but he disposed of the phone in either late 2015 or
early 2016, without securing the recording. However, as Anderson did not file a
complaint with the police department regarding her arrest until March 2016, at best
it is unclear whether Armour was under a duty to preserve the recording when he
disposed of the phone. Fed. R. Civ. Proc. 37(e). Thus, Anderson failed to carry
her burden to affirmatively prove that the recording should have been preserved in
anticipation of litigation. Additionally, Anderson failed to prove that the recording
was destroyed “with the intent to deprive [Anderson] of the information’s use in
the litigation.” Fed. R. Civ. Proc. 37(e)(2). The only evidence presented on
Armour’s reason for disposing of the cell phone was Armour’s testimony that the
cell phone broke and no longer worked. Anderson’s arguments regarding a
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statutory and common law duty to preserve the recording are waived because
Anderson failed to bring these arguments before the district court. See Bolker v.
C.I.R., 760 F.2d 1039, 1042 (9th Cir. 1985).1
2. Nor did the district court abuse its discretion in rejecting Anderson’s
argument that Armour’s alleged prior history of assault was admissible habit
evidence under Federal Rule of Evidence 406. “In deciding whether certain
conduct constitutes habit, courts consider three factors: (1) the degree to which the
conduct is reflexive or semi-automatic as opposed to volitional; (2) the specificity
or particularity of the conduct; and (3) the regularity or numerosity of the examples
of the conduct.” United States v. Angwin, 271 F.3d 786, 799 (9th Cir. 2001);
overruled on other grounds in United States v. Lopez, 484 F.3d 1186 (9th Cir.
2007) (en banc). A history consisting of four disparate alleged assaults over a five-
year period is insufficient to constitute a habit under Angwin.
The district court did not abuse its discretion in precluding testimony from
Abigail Frost concerning an alleged sexual assault by Armour. Under Federal Rule
of Evidence 415, because Anderson alleged a sexual assault, the district court had
1
These arguments also fail on the merits. A common law spoliation
analysis mirrors our analysis under Federal Rule of Civil Procedure 37(e). See
Ryan v. Editions Ltd. West, Inc., 786 F.3d 754, 766 (9th Cir. 2015). Statutory
spoliation under A.R.S. § 39-121.01(B) is equally unpersuasive, as the recording at
issue is private in nature, and therefore not a public record under Griffis v. Pinal
County, 215 Ariz. 1 (Ariz. 2007).
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the discretion—but was not required—to admit evidence that Armour previously
committed another sexual assault. In considering its admissibility, the district
court properly balanced the factors we laid out in Doe ex rel. Rudy-Glanzer v.
Glanzer, 232 F.3d 1258 (9th Cir. 2000), and concluded, due to several significant
differences between the two purported assaults, that Frost’s testimony was
insufficiently relevant under Glanzer.
3. Finally, the district court did not abuse its discretion in precluding
extrinsic impeachment evidence regarding Armour’s placement on the county
Brady list. The trial court has “very broad discretion in applying Rule 403,” Liew
v. Off. Receiver & Liquidator, 685 F.2d 1192, 1195 (9th Cir. 1982), and it
reasonably concluded that the Brady list evidence bore a substantial risk of
confusing the issues and creating unfair prejudice that substantially outweighed its
probative value given how “many agents are on Brady lists for issues having
nothing to do with untruthfulness.” And despite Anderson’s arguments to the
contrary, the district court did allow Anderson to cross-examine Armour on past
instances of untruthfulness—including potential policy violations—to attack
Armour’s credibility without exceeding the bounds of Federal Rule of Evidence
608.
AFFIRMED.
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Jeanna Anderson v. Anthony Armour, Jr.
Combined Opinion