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No. 20-16068 (Consolidated with Nos Case: 20-16068, 02/26/2021, ID: 12018722, DktEntry: 29, Page 1 of 68 No. 20-16068 (Consolidated with Nos. 20-16070, 20-16773, and 20-16820) ____________________________________ IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT ____________________________________ PLANNED PARENTHOOD FEDERATION OF AMERICA, et al., Plaintiffs-Appellees, v. TROY NEWMAN, et al., Defendants-Appellants. ____________________________________ On Appeal from the U.S. District Court for the Northern District of California, No. 3:16-cv-00236-WHO, Hon. William H. Orrick ____________________________________ DEFENDANT-APPELLANT TROY NEWMAN’S OPENING BRIEF ____________________________________ Edward L. White III Erik M. Zimmerman John A. Monaghan* Christina A. Stierhoff AMERICAN CENTER FOR LAW & JUSTICE 3001 Plymouth Rd., Ste. 203 Ann Arbor, MI 48105 Tel: (734) 680-8007 Vladimir F. Kozina MAYALL HURLEY, P.C. 2453 Grand Canal Blvd. Stockton, CA 95207 Tel: (209) 477-3833 * Not admitted to 9th Circuit bar Attorneys for Defendant Troy Newman Case: 20-16068, 02/26/2021, ID: 12018722, DktEntry: 29, Page 2 of 68 Table of Contents Jurisdictional Statement ............................................................................................. 1 Issues Presented ......................................................................................................... 1 Statement of the Case ................................................................................................. 2 Summary of the Argument ......................................................................................... 7 Argument.................................................................................................................... 9 I. Plaintiffs failed to prove the elements of their RICO claim. ........................... 9 A. Plaintiffs failed to prove the commission of any RICO predicate acts, as the production and transfer of the identifications at issue was not in, and did not affect, interstate commerce. ............................. 9 B. Plaintiffs failed to prove the requisite “pattern” of “continuous” RICO predicate acts............................................................................. 13 II. The judgment should be vacated because the district court’s decision to allow the jury to draw twenty adverse inferences from valid invocations of Fifth Amendment privilege by Newman and two non-parties was unconstitutional. ............................................................................................. 18 A. Introduction ......................................................................................... 18 B. Plaintiffs had many ways to obtain information about the topics at issue that were less burdensome than a long list of adverse inferences. ............................................................................................ 21 C. There was no “substantial need” for any of the inferences. ................ 26 D. Some of the inferences are not supported by any evidence presented to the jury. ........................................................................... 29 E. The district court erred by permitting inferences upon inferences that were not directly tied to questions for which a witness invoked the privilege. .......................................................................... 32 i Case: 20-16068, 02/26/2021, ID: 12018722, DktEntry: 29, Page 3 of 68 F. Several of the inferences were barred by California Evidence Code § 913, FRE 501, and/or FRE 403. ............................................. 34 G. The district court erred by permitting adverse inferences based upon two non-parties’ invocation of privilege. ................................... 38 H. Newman, and all other Defendants, were unfairly prejudiced by the district court’s decision to permit numerous unconstitutional adverse inferences. .............................................................................. 40 III. The jury verdict and judgment against Newman was not supported by substantial evidence, and should be reversed. ............................................... 43 A. Elements of conspiracy ....................................................................... 45 B. Summary of Newman’s minimal knowledge and involvement .......... 46 C. RICO conspiracy ................................................................................. 52 D. Conspiracy to commit fraudulent misrepresentation and false promise fraud. ...................................................................................... 54 E. Conspiracy to commit trespass and violate recording statutes. .......... 55 F. Punitive damages and injunctive relief ............................................... 57 Conclusion ............................................................................................................... 58 Statement of Related Cases ...................................................................................... 60 Certificate of Compliance ........................................................................................ 61 ii Case: 20-16068, 02/26/2021, ID: 12018722, DktEntry: 29, Page 4 of 68 Table of Authorities Cases Allwaste, Inc. v. Hecht, 65 F.3d 1523 (9th Cir. 1995) ............................................. 17 Atencio v. Arpaio, No. CIV. 12-2376-PHX-PGR, 2013 U.S. Dist. LEXIS 148918 (D. Ariz. Oct. 15, 2013) .............................................................................. 26 Ayers v. Lee, Case No. 14-cv-00542-BGS-NLS, 2020 U.S. Dist. LEXIS 218003 (S.D. Cal. Nov. 20, 2020) ........................................................................... 38 Baumer v. Pachl, 8 F.3d 1341 (9th Cir. 1993)......................................................... 52 Baxter v. Palmigiano, 425 U.S. 308 (1976) ............................................................. 30 Berger v. City of Seattle, 569 F.3d 1029 (9th Cir. 2009) ......................................... 19 Branch Banking & Tr. Co. v. D.M.S.I., LLC, 871 F.3d 751 (9th Cir. 2017) ............. 9 Doe v. Glanzer, 232 F.3d 1258 (9th Cir. 2000) ................................................passim Dowd v. Calabrese, 589 F. Supp. 1206 (D.D.C. 1984) ........................................... 57 Downey v. Coalition Against Rape & Abuse, Inc., Civ. No. 99-3370 (JBS), 2005 U.S. Dist. LEXIS 7340 (D.N.J. 2005), aff’d by 2005 U.S. App. LEXIS 18866 (3d Cir. 2005) ................................................................................................ 57 Durning v. Citibank, Int’l, 990 F.2d 1133 (9th Cir. 1993) ...................................... 16 Farrah v. Chacon, No. 18-cv-00895-NRN, 2018 U.S. Dist. LEXIS 223400 (D. Colo. Dec. 6, 2018) .................................................................................................. 30 Food Lion v. Capital Cities/ABC, 887 F. Supp. 811 (M.D.N.C. 1995) ............ 15-16 Frances T. v. Village Green Owners Ass’n, 42 Cal. 3d 490 (1986) ........................ 46 Globe Int’l, Inc. v. Superior Ct., 9 Cal. App. 4th 393 (1992) .................................. 16 Gonzales v. City of San Jose, No. 13-cv-00695-BLF, 2015 U.S. Dist. LEXIS 163955 (N.D. Cal. Dec. 4, 2015) ............................................................................. 30 Gruenberg v. Aetna Ins. Co., 9 Cal. 3d 566 (1973) ................................................. 55 iii Case: 20-16068, 02/26/2021, ID: 12018722, DktEntry: 29, Page 5 of 68 H.J. Inc. v. Nw. Bell Tel. Co., 492 U.S. 229 (1989) .......................................... 13, 14 Hagen v. City of Eugene, 736 F.3d 1251 (9th Cir. 2013) ........................................ 43 Howard v. America Online, Inc., 208 F.3d 741 (9th Cir. 2000) .............................. 16 Jarvis v. Regan, 833 F.2d 149 (9th Cir. 1987)................................................... 16, 17 Kan-Di-Ki, LLC v. Sorenson, 723 Fed. Appx. 432 (9th Cir. 2018) (unpub.) .......... 16 Kisser v. Coalition for Religious Freedom, No. 92 C 4508, 1997 U.S. Dist. LEXIS 1744 (N.D. Ill. Feb. 18, 1997) ..................................................................... 57 LaSalle Bank Lake View v. Seguban, 54 F.3d 387 (7th Cir. 1995) ......................... 30 Lawrence v. Madison Cnty., 176 F. Supp. 3d 650 (E.D. Ky. 2016) ........................ 30 LiButti v. United States, 107 F.3d 110 (2d Cir. 1997) ............................................. 38 Medallion Television Enters., Inc. v. SelecTV of Cal., Inc., 833 F.2d 1360 (9th Cir. 1988) ........................................................................................................... 14, 16 Miranda v. Arizona, 384 U.S. 436 (1966) ............................................................... 18 Nationwide Life Ins. Co. v. Richards, 541 F.3d 903 (9th Cir. 2008) ...... 18-19, 26-32 Navarrete v. Meyer, 237 Cal. App. 4th 1276 (2015) ............................................... 57 Prime Media Grp., LLC v. Acer Am. Corp., No. 12-cv-05020-BLF, 2015 U.S. Dist. LEXIS 15492 (N.D. Cal. Feb. 6, 2015) .......................................................... 25 Religious Tech. Ctr. v. Wollersheim, 971 F.2d 364 (9th Cir. 1992) ........................ 16 Retz v. Samson, 606 F.3d 1189 (9th Cir. 2010) ....................................................... 29 Schreiber Distrib. Co. v. Serv-Well Furniture Co., 806 F.2d 1393 (9th Cir. 1986) ........................................................................................................................ 16 SEC v. Fujinaga, 696 Fed. Appx. 203 (9th Cir. 2017) (unpub.) ............................
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