Selvin Orlando Carranza v. Janine K. Jeffery

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
SELVIN ORLANDO CARRANZA,
Plaintiff-Appellee,
v.
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.
No. 23-55180
D.C. No.
3:14-cv-00773-JO-AGS
MEMORANDUM*
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.
FILED
FEB 28 2024
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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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.

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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

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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

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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

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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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