FILED

NOT FOR PUBLICATION

FEB 28 2024

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

SELVIN ORLANDO CARRANZA, No. 23-55180

Plaintiff-Appellee, D.C. No. 3:14-cv-00773-JO-AGS v.

MEMORANDUM*

JANINE K. JEFFERY,

Appellant,

v.

WILLIAM SUGLICH, Chairperson Chief Deputy Warden (A) for Richard J. Donovan (RJD); et al.,

Defendants-Appellees,

and

EDMUND G. BROWN, Jr., Governor of the State of California; et al.,

Defendants.

Appeal from the United States District Court for the Southern District of California Jinsook Ohta, District Judge, Presiding

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. Argued and Submitted February 16, 2024 Pasadena, California

Before: TALLMAN, IKUTA, and OWENS, Circuit Judges.

Real-party-in-interest Appellant Janine K. Jeffery appeals pro se the summary

criminal contempt judgment entered against her by the Honorable Jinsook Ohta

arising from her role as counsel for one of the named defendants in a 10-day jury

trial of a prisoner § 1983 civil rights action against prison officers in early 2023.

In the underlying action, inmate Selvin O. Carranza asserted failure to protect

claims against over twenty defendants alleging various violations of his

constitutional rights, the majority of whom were represented by the California

Attorney General’s Office with the exception of three defendants represented by

private counsel. Correctional Sergeant LoriAnne Tillman was represented by

attorney Janine K. Jeffery. Trial was held before a jury from January 23, 2023, to

February 2, 2023.

Relevant to the immediate appeal, one of the claims against Sergeant Tillman

arose from a fight between Plaintiff Carranza and a fellow inmate. Evidence was

presented during trial as to Plaintiff Carranza’s use of homophobic slurs, which led

to not only the impeachment of Carranza, but also provided support for the defense’s

argument that Carranza intentionally antagonized the fellow inmate into the

altercation.

2 At the conclusion of the eighth day of trial, during the jury instructions

conference, the Court sua sponte instructed counsel to not refer in closing arguments

to the homophobic slurs used by the plaintiff in the underlying case. Specifically,

the Court instructed counsel:

For the reasons already explained by the Court, the Court is going to instruct that counsel not refer to those terms in closing argument. The Court is not proposing to strike any evidence or give any curative instructions. Those were not requested. You are certainly free to explain your narrative as to how Mr. Carranza was homophobic. How it led to the fight. You can even say that he goaded Mr. -- Inmate Davis into a fight because he was gay because he didn’t like gay people to the extent that’s supported by the evidence. However, the Court finds no additional probative value from repeating the slurs . . . At this point, it would just be gratuitous mention for prejudicial purposes only. It does not go toward -- does not tend to make any fact more likely than another. So that concludes the discussion on this issue.

The next day, February 2, 2023, during closing argument, Jeffery showed on

the courtroom projector one of the admitted documents that contained the

homophobic slurs, pointed the prohibited words out to the jury, but stated that she

“won’t repeat it.” The Court asked Jeffery to take the document off the screen and

sent the jury to take their lunch break.

After the recess, the Court informed Jeffery that it was citing her for contempt

and gave Jeffery an opportunity to respond to the contempt charge. Jeffery

responded, “Your Honor, I did not understand the Court’s order to say that I was not

allowed to use documents in evidence. What I understood the Court to have said was

that I wasn’t allowed to refer to that phrase. The documents that have those phrases

3 are critical to the defense of my client.” Jeffery requested the Court inquire of fellow

defense counsel as to their understanding of the order, suggesting they understood

the Court’s order similarly.

Judge Ohta then summarily found that Jeffery had willfully violated the order

not to refer to the homophobic slurs, held Jeffery in criminal contempt, imposed a

fine of $4,000, and informed Jeffery that her misconduct would be referred to the

State Bar of California.

On February 7, 2023, the Court entered a written order confirming that Jeffery

was guilty of criminal contempt. In the written order, the Court cited Federal Rule

of Criminal Procedure 42(b), attesting that “the below recites the facts relevant to

the contempt finding and certifies that the undersigned saw and heard the conduct

that constitutes contempt of court.” In the written order, the Court highlighted its

findings in its oral decision that “although Attorney Jeffery did not say the slur

outright––her acts of highlighting the slur, pointing to it, and verbally drawing the

jury’s attention to it were, together, a clear violation of the Court’s order not to refer

to the fact that Plaintiff used homophobic slurs,” and further that “the Court [had]

found that the ‘order not to refer to that fact was clear,’ and [Jeffery] had

intentionally ‘violated that order [the] same as if [she] had actually said the word.’”

Jeffery challenges the district court’s criminal contempt finding on several

grounds. Because we address only whether the district court erred in finding a

4 violation of its sua sponte order that all counsel refrain from repeating the

homophobic words used by Carranza, we decline to address the remaining issues as

unnecessary.

Jeffery’s use of an exhibit containing the offensive term did not violate a

“clear and definite order.” Chapman v. Pac. Tel. & Tel. Co., 613 F.2d 193, 195 (9th

Cir. 1979) (“Criminal contempt is established when there is a clear and definite

order, and the contemnor knows of the order, and the contemnor willfully disobeys

the order.” (cleaned up) (citations omitted)); see also Falstaff Brewing Corp. v.

Miller Brewing Co., 702 F.2d 770, 782 (9th Cir. 1983) (“Willfulness in this context

means a deliberate or intended violation, as distinguished from an accidental,

inadvertent, or negligent violation of an order.”). “[W]here the line between

vigorous advocacy and actual obstruction defie[s] strict delineation, doubts should

be resolved in favor of vigorous advocacy.” In re Contempt of Greenberg, 849 F.2d

1251, 1255 (9th Cir. 1988) (second alteration in original) (quoting United States ex

rel. Robson v. Oliver, 470 F.2d 10, 13 (7th Cir. 1972)); see also Caldwell v. United

States, 28 F.2d 684, 684 (9th Cir. 1928) (explaining that punishing conduct, “where

the intent to be insubordinate is not clear, might very well have the result of deterring

an attorney of less courage and experience from doing his full duty to his client”).

Though the Court had ordered “that counsel not refer to those terms in closing

argument,” the Court also specifically ruled that it was “not proposing to strike any

5 evidence or give any curative instructions” and that Jeffery was “certainly free to

explain [her] narrative as to how Mr. Carranza was homophobic.” Jeffery did not

verbally repeat the homophobic slurs and thus did not violate the Court’s order to

“not refer to [the offensive] terms in closing argument.” To the extent that the

Court’s order included an instruction not to display the offensive term in an exhibit,

that instruction was not clear and definite. The ambiguity in the Court’s instructions,

coupled with its failure to either exclude the document or redact the offensive

language from the exhibit it admitted into evidence, compels our conclusion; we

resolve the doubt “in favor of vigorous advocacy.”

Accordingly, we vacate and remand with direction to dismiss the contempt

judgment issued against Jeffery.

VACATED AND REMANDED with instructions.

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