FILED

NOT FOR PUBLICATION

AUG 16 2022

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

LESLIE A. MERRITT, Jr., No. 21-15833

Plaintiff-Appellant, D.C. No. 2:17-cv-04540-DGC

v.

MEMORANDUM*

STATE OF ARIZONA; HESTON

SILBERT; CHRISTOPHER

KALKOWSKI; FRANK MILSTEAD;

KEN HUNTER; KELLY M. HEAPE;

JENNIFER PINNOW; JENNIFER

PINNOW; ANTHONY FALCONE,

Defendants-Appellees.

Appeal from the United States District Court for the District of Arizona David G. Campbell, District Judge, Presiding

Argued and Submitted June 13, 2022 San Francisco, California

Before: BYBEE, CALLAHAN, and COLLINS, Circuit Judges. Concurrence by Judge COLLINS.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. This suit arises out of Leslie Merritt’s arrest and indictment for the 2015 I-10

freeway shootings in Phoenix, Arizona. The case against Merritt was based, in

part, on ballistic evidence linking a firearm that he owned and pawned to the

shooting. Merritt was arrested in September 2015 and indicted six days later. A

subsequent independent ballistics analysis resulted in inconclusive findings. As a

result, Merritt was released from jail and the charges were dismissed. He applied

for, and received, a Notation of Clearance.

Merritt filed this suit against Maricopa County, various County officers and

employees, the State, and various DPS officers and employees, alleging causes of

action for false arrest and false imprisonment under 42 U.S.C. § 1983, a Brady

violation under § 1983, state-law false arrest and false imprisonment, malicious

prosecution, negligence, intentional infliction of emotional distress, and aiding and

abetting tortious conduct. Following discovery, Merritt dismissed his claims

against the County defendants.

The State moved for summary judgment on all claims. Opposing summary

judgment, Merritt argued that the State had failed to establish probable cause for

his arrest because, among other things, Criminalist Kalkowski allegedly fabricated

his ballistics identification. The district court concluded that Merritt failed to

provide evidence sufficient to overcome the presumption of probable cause created

2 by the grand jury indictment (through his fabrication argument or otherwise), and

the district court granted summary judgment on his post-indictment claims for

malicious prosecution. The court also granted summary judgment on all other

claims except the state-law claims for false arrest, false imprisonment, and aiding

and abetting, pre-indictment. Merritt’s pre-indictment claims were tried to a jury,

which returned judgment in favor of the State on all claims.

Merritt appeals (1) the district court’s summary judgment ruling and ruling

preventing him from arguing that Criminalist Kalkowski fabricated the ballistics

evidence and (2) the district court’s ruling preventing him from presenting to the

jury, in closing arguments, that Merritt had received a Notation of Clearance from

the State.

We review a grant of summary judgment de novo. Lopez v. Smith, 203 F.3d

1122, 1131 (9th Cir. 2000) (en banc). Viewing the evidence in the light most

favorable to the nonmoving party, we must determine whether there are any

genuine issues of material fact. See id. We review a district court’s pretrial

exclusion of evidence for abuse of discretion. United States v. Bonds, 608 F.3d

495, 498 (9th Cir. 2010). “[P]retrial in limine evidentiary rulings are to be

accorded the same deference on appeal as rulings made during trial.” United States

v. Layton, 767 F.2d 549, 555 (9th Cir. 1985). We do not reverse an evidentiary

3 ruling under an abuse of discretion standard unless we are “convinced firmly that

the reviewed decision lies beyond the pale of reasonable justification under the

circumstances.” Boyd v. City & Cnty. of San Francisco, 576 F.3d 938, 943 (9th

Cir. 2009) (quoting Harman v. Apfel, 211 F.3d 1172, 1175 (9th Cir. 2000)). The

district court “has broad discretion in formulating jury instructions.” Hasbrouck v.

Texaco, Inc., 842 F.2d 1034, 1044 (9th Cir. 1987). “We review a district court’s

formulation of civil jury instructions for an abuse of discretion.” Abromson v. Am.

Pac. Corp., 114 F.3d 898, 902 (9th Cir. 1997); see also Clem v. Lomeli, 566 F.3d

1177, 1182 (9th Cir. 2009).

1. Merritt’s argument regarding the district court’s decision on his

fabrication assertions is likely waived. Following the district court’s ruling on

summary judgment, the State filed a motion in limine to preclude Merritt from

arguing or introducing evidence at trial that the DPS crime lab had fabricated

ballistics results. Merritt did not oppose the State’s motion. The district court

granted the motion, ruling: “[Merritt] is precluded from asserting that DPS

intentionally fabricated ballistics evidence.” During the trial, the district court

reminded Merritt of the evidentiary order precluding any argument that the DPS

crime lab had intentionally fabricated evidence. Merritt once again did not object

to the court’s ruling. On appeal, Merritt argues that he was not obligated to object

4 to the State’s motion in limine because the district court’s ruling on summary

judgment precluded him from raising the fabrication argument. Thus, he contends

the argument is preserved on appeal. We are not convinced. Merritt had an

obligation to object to the ruling to preserve the trial issue for appeal. United

States v. Hayden, 860 F.2d 1483, 1485 (9th Cir. 1988) (“As a general proposition,

a party must raise an objection initially to the trial court to preserve it for appeal.”).

Even if we were inclined to reach the merits, his arguments are unavailing.

Merritt relies on gesture and innuendo to conclude that Kalkowski fabricated

evidence. Merritt’s key piece of evidence is several inconclusive results from

ballistics experts. But that doesn’t demonstrate fabrication.

The district court properly determined that Merritt had failed to present

sufficient evidence from which a reasonable jury could find that Kalkowski

had fabricated his ballistics identification. Indeed, Merritt’s own expert witnesses

contradicted this argument. He is left only with inferences not supported by the

evidence. Merritt cites Occam’s Razor multiple times in his opening brief in

support of his argument that the district court erred. Occam’s Razor is a principle

of logic suggesting where evidence can be found; it is not itself a piece of

evidence. See Barnes v. Arden Mayfair, Inc., 759 F.2d 676, 680–81 (9th Cir. 1985)

(explaining that a reasonable inference is one that is supported by “significant

5 probative evidence” rather than “threadbare conclusory statements”); Wige v. City

of Los Angeles, 713 F.3d 1183, 1186 (9th Cir. 2013) (“mere speculation” that an

officer had fabricated evidence was insufficient to defeat summary judgment);

McSherry v. City of Long Beach, 584 F.3d 1129, 1136 (9th Cir. 2009) (“Surmise,

conjecture, theory, speculation and an advocate’s suppositions cannot do duty for

probative facts and valid inferences.” (internal quotation marks omitted) (quoting

Poppell v. City of San Diego, 149 F.3d 951, 962 (9th Cir. 1998))).

The district court’s rulings on summary judgment were proper. And for the

same reason, the district court’s ruling on the motion in limine was also proper. As

a result, the court properly barred Merritt from arguing his fabrication theory in

closing arguments. Merritt did not, and could not, proffer any evidence

supporting a reasonable inference that Criminalist Kalkowski or the DPS crime lab

had fabricated evidence. Because of the district court’s rulings, no evidence in the

record supports Merritt’s fabrication theory. So any statements regarding

fabrication in closing would have amounted to improper vouching. “[T]he

prohibition on improper vouching based on evidence outside the record extends to

civil trials.” Draper v. Rosario, 836 F.3d 1072, 1084 (9th Cir. 2016). Thus, the

district court properly excluded Merritt’s fabrication argument and no error

occurred. See id. at 1083–85.

6 And any error was harmless. Merritt presented expert witness testimony,

evidence, and argument that Kalkowski erred in his ballistics identification. The

jury rejected Merritt’s argument that this error was unreasonable. Thus, we cannot

conclude that it is more probable than not that the jury would have determined that

Kalkowski intentionally fabricated evidence had Merritt been allowed to argue his

theory in closing.

2. Merritt’s appeal regarding the district court’s ruling on his Notation of

Clearance is also likely waived. Merritt stipulated not to raise the Notation of

Clearance with the jury. (“Neither party will elicit testimony about Plaintiff’s

Petition for Notation of Clearance that is currently pending adjudication in

Maricopa County Superior Court.”); (email from Merritt’s counsel on January 29,

2020 stating: “[w]e will stipulate that no mention of the NOC will be made to the

jury at trial”). Merritt subsequently filed a Motion for Issue Preclusion arguing

that the Notation of Clearance required that the jury “be advised that Leslie Merritt,

Jr. is not the I-10 Freeway Shooter.” Merritt additionally requested a jury

instruction that “the Court has found that Leslie Allen Merritt, Jr. has been cleared

on any allegation or charge related to the I-10 Freeway shootings.” The State

opposed the motion and asserted a countermotion in limine to preclude any

evidence or argument concerning the Notation of Clearance at trial, based in part

7 on the State’s motion to intervene in the Notation of Clearance proceedings in

order to challenge the Notation of Clearance. Before the district court could issue

a ruling, Merritt withdrew his Motion for Issue Preclusion.

In October 2020, the parties participated in a final pretrial conference.

Addressing the State’s pending, unopposed countermotion in limine, the district

court proposed to resolve the issue by informing the jury in the “Statement of the

Case” of the preliminary jury instructions that (1) the criminal charges against

Merritt had been dismissed, and (2) the jury should not be influenced by the

dismissal of charges in determining whether the State had probable cause to arrest

Merritt. After further discussion, the parties ultimately agreed that the State’s

pending countermotion was moot and that there would be no mention of the

Notation of Clearance at trial.

Merritt waived any objection to the district court’s ruling. “A stipulation or

the withdrawal of an objection is tantamount to a waiver of an issue for appeal.”

Yeti by Molly, Ltd. v. Deckers Outdoor Corp., 259 F.3d 1101, 1108 (9th Cir. 2001)

(cleaned up) (quoting CDN Inc. v. Kapes, 197 F.3d 1256, 1258 (9th Cir. 1999)).

Merritt argues that the district court’s decision not to instruct the jury on the

Notation of Clearance was prejudicial because “defense witnesses were freely and

repeatedly testifying” that “Merritt, a man legally cleared of any allegation or

8 charge, was the freeway shooter.” That argument mischaracterizes the testimony.

These witnesses merely expressed their opinion that he was the shooter. Moreover,

Merritt’s counsel elicited that testimony on direct examination of witnesses he

called. Merritt cannot now complain that the district court erred by failing to

instruct the jury on the Notation of Clearance. He invited any error by stipulating

to the preclusion of such evidence, acquiescing to the court’s proposed preliminary

instruction, and eliciting the testimony that he now claims was prejudicial. See

Deland v. Old Republic Life Ins. Co., 758 F.2d 1331, 1336–37 (9th Cir. 1985)

(“[O]ne may not complain on review of errors below for which he is responsible.”

(internal quotation marks omitted) (quoting Hudson v. Wylie, 242 F.2d 435, 448

(9th Cir. 1957))); see also Johnson v. I.N.S., 971 F.2d 340, 343 (9th Cir. 1992)

(“The doctrine of invited error prevents a defendant from complaining of an error

that was his own fault.” (cleaned up) (quoting United States v. Reyes-Alvarado,

963 F.2d 1184, 1187 (9th Cir. 1992))).

And any error was not an abuse of discretion. “[N]o valid objection” lies

when a court refuses a jury instruction that is “irrelevant and immaterial . . . to the

ground upon which the case was placed before the jury.” Brown v. Tarkington, 70

U.S. 377, 381 (1865); accord United States v. Foppe, 993 F.2d 1444, 1452 (9th

Cir. 1993) (holding that failure to give proposed jury instruction did not prejudice

9 defendant because he “was not entitled to an irrelevant jury instruction”); United

States v. Marks, 530 F.3d 799, 809 (9th Cir. 2008) (holding that the district court

did not err in failing to give instruction on arguments that were not relevant to the

issues that the jury would decide). The only question presented to the jury on

liability was whether the State had probable cause to arrest Merritt. Whether

Merritt was ultimately cleared of the charges provides little insight into whether the

police had probable cause to arrest him. See Hockett v. City of Tucson, 678 P.2d

502, 505 (Ariz. Ct. App. 1983) (“Probable cause to make an arrest may exist

despite the fact that the charges are subsequently dismissed or the accused is found

to be innocent.”). Put simply, the district court did not commit error in refusing to

instruct the jury that Merritt had obtained a Notation of Clearance.

AFFIRMED.

10

FILED

Merritt v. State of Arizona, 21-15833 AUG 16 2022

MOLLY C. DWYER, CLERK

COLLINS, Circuit Judge, concurring in the judgment: U.S. COURT OF APPEALS

I concur in the judgment, but I do so on narrower grounds than those relied

upon by the majority.

1. Even assuming arguendo that the district court should have permitted

Merritt to argue to the jury that Kalkowski’s asserted deficiencies were the result

of fabrication rather than simply incompetence, Merritt has failed to establish that

he was prejudiced. See Wall Data Inc. v. Los Angeles Cnty. Sheriff’s Dep’t, 447

F.3d 769, 783 (9th Cir. 2006) (holding that asserted error in granting motion in

limine is reversible only if prejudice is shown); Tennison v. Circus Circus Enters.,

Inc., 244 F.3d 684, 688 (9th Cir. 2001) (“A reviewing court should find prejudice

only if it concludes that, more probably than not, the lower court’s error tainted the

verdict.”). Merritt emphasizes that he should have been allowed to argue that

Kalkowski’s actions could only have been due to fabrication rather than to

incompetence, but the factual predicate for making that particular argument was

underwhelming at best. Moreover, when presented at trial with the choice between

whether Kalkowski’s actions reflected competence or incompetence, the jury

necessarily chose the former when it found that probable cause had been

established for Merritt’s arrest. It seems to me highly unlikely that a jury that did

not even find incompetence would have found fabrication if only that latter possibility had been argued.

2. The district court did not abuse its discretion in excluding, under Federal

Rule of Evidence 403, any reference to the notation of clearance. See

Sprint/United Mgmt. Co. v. Mendelsohn, 552 U.S. 379, 384 (2008) (“[C]ourts of

appeals uphold Rule 403 rulings unless the district court has abused its

discretion.”). As the district court noted at the time it ruled, the State had moved to

intervene to set aside the notation of clearance and that motion had not yet been

resolved. Moreover, the notation of clearance was issued in August 2020, nearly

five years after the relevant time frame for assessing whether there was probable

cause, which was September 2015. In light of these considerations, the district

court acted well within its discretion in concluding that any probative value of the

notation of clearance was substantially outweighed by the risk of unfair prejudice.

For these reasons, I agree that the judgment should be affirmed.

2