NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCO MILLA, an individual, No. 23-3661 D.C. No. Plaintiff - Appellant, 2:16-cv-00134-FWS-MRW v. MEMORANDUM*
CITY OF LOS ANGELES, a municipal entity; Detective RICHARD ULLEY; Detective JOHN VANDER HORCK; MATTHEW VANDER HORCK, c/o LA County Sheriff,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California Fred W. Slaughter, District Judge, Presiding
Argued and Submitted June 4, 2025 Pasadena, California
Before: HURWITZ, MILLER, and SUNG, Circuit Judges.
Marco Milla was incarcerated for over a decade for a murder he did not
commit. After his release, he sued Richard Ulley and John Vander Horck
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (“Defendants”), the lead homicide detectives on his case, under 42 U.S.C. § 1983.1
Milla appeals from the judgment entered for Defendants after a jury verdict.2 We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. To succeed on his malicious prosecution claim, Milla was required to
show that he was prosecuted without probable cause. Awabdy v. City of Adelanto,
368 F.3d 1062, 1066 (9th Cir. 2004). Milla argues that he was prosecuted without
probable cause because his prosecution stemmed from an arrest made without
probable cause. Probable cause is determined by examining “the events leading up
to the arrest,” then deciding “whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to probable cause.”
District of Columbia v. Wesby, 583 U.S. 48, 56-57 (2018) (internal citation and
quotation marks omitted). Milla challenges several of the district court’s evidentiary
rulings, which we review for abuse of discretion. Velazquez v. City of Long Beach,
793 F.3d 1010, 1017 (9th Cir. 2015).
a. The district court did not abuse its discretion when it admitted evidence
about the 204th Street gang and Milla’s prior gang affiliation. Because the location
and circumstances of the homicide indicated that it was potentially gang-related, the
1 Milla’s claim against Defendant City of Los Angeles was dismissed by the court pursuant to Fed. R. Civ. P. 50, a ruling that Milla does not challenge on appeal. 2 We assume the parties’ familiarity with the background of this case and discuss only the facts that are necessary to explain the disposition.
2 23-3661 gang evidence was relevant to whether there was probable cause to arrest Milla. See
Fed. R. Evid. 401. The evidence was not more prejudicial than probative under Fed.
R. Evid. 403. The district court provided a limiting instruction stating that gang
evidence could be considered only for the purpose of determining whether there was
probable cause to arrest Milla. The court also sustained Milla’s objections to
potentially inflammatory gang-related testimony.
b. The district court did not abuse its discretion when it admitted evidence
of Milla’s prior arrest. The prior arrest was a “historical fact” known to Defendants
at the time of Milla’s arrest for homicide and was relevant to the probable cause
determination. Wesby, 583 U.S. at 56. The evidence was not more prejudicial than
probative, and the district court provided a limiting instruction to mitigate any
prejudice.
c. The district court did not abuse its discretion when it admitted evidence
that Milla’s counsel met with witness Ramar Jenkins before Jenkins recanted his
prior testimony. The circumstances of Jenkins’s recantation were relevant to the
jury’s evaluation of his testimony. See United States v. Scheffer, 523 U.S. 303, 313
(1998) (“Determining the weight and credibility of witness testimony” is the
province of the jury.); Gable v. Williams, 49 F.4th 1315, 1323 (9th Cir. 2022)
(noting, in the habeas context, that courts consider the “context [and] circumstances
and timing of [a] recantation” when evaluating its likely effect on a juror).
3 23-3661 d. The district court did not abuse its discretion when it excluded evidence
of Milla’s factual innocence. Milla’s factual innocence was not known to Defendants
at the time of their investigation, so it could not show that they lacked probable
cause. Milla is correct that he was required to show “that the prior proceedings
terminated in such a manner as to indicate his innocence.” Awabdy, 368 F.3d at 1068.
But factual innocence and favorable termination are not synonymous, and the district
court’s order did not bar Milla from introducing evidence that the state dismissed
the case against him. The district court also did not prevent Milla from asking
Defendants about whether and to what extent they investigated other suspects,
including an alternate suspect.
2. Milla argues that the district court erred when it dismissed four
jurors for cause. The dismissal of a juror for cause based on actual bias is reviewed
“for manifest error or abuse of discretion.” United States v. Gonzalez, 214 F.3d 1109,
1112 (9th Cir. 2000) (internal citation and quotation marks omitted). The record
shows that all four jurors demonstrated actual bias in favor of Milla, and the district
court did not abuse its discretion when it struck them for cause.
Milla also argues that the district court erred when it reopened peremptory
challenges to the entire panel after the jury was sworn and a fifth juror was dismissed
for cause. Even assuming error, Milla has not shown that reversal is warranted. He
has “presented no evidence that the seated jurors in his case were partial or otherwise
4 23-3661 failed to perform their duties in any way.” United States v. Lindsey, 634 F.3d 541,
554 (9th Cir. 2011).
3. Milla argues that the district court erroneously instructed the jury.
“[W]hen a party challenges a jury instruction as an incomplete, and therefore
incorrect, statement of the law,” we review the instructions de novo. Hunter v.
County of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (internal citation and
quotation marks omitted). “Prejudicial error results from jury instructions that, when
viewed as a whole, fail to fairly and correctly cover the substance of the applicable
law.” White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002).
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NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JUN 30 2025 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT
MARCO MILLA, an individual, No. 23-3661 D.C. No. Plaintiff - Appellant, 2:16-cv-00134-FWS-MRW v. MEMORANDUM*
CITY OF LOS ANGELES, a municipal entity; Detective RICHARD ULLEY; Detective JOHN VANDER HORCK; MATTHEW VANDER HORCK, c/o LA County Sheriff,
Defendants - Appellees.
Appeal from the United States District Court for the Central District of California Fred W. Slaughter, District Judge, Presiding
Argued and Submitted June 4, 2025 Pasadena, California
Before: HURWITZ, MILLER, and SUNG, Circuit Judges.
Marco Milla was incarcerated for over a decade for a murder he did not
commit. After his release, he sued Richard Ulley and John Vander Horck
* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. (“Defendants”), the lead homicide detectives on his case, under 42 U.S.C. § 1983.1
Milla appeals from the judgment entered for Defendants after a jury verdict.2 We
have jurisdiction under 28 U.S.C. § 1291, and we affirm.
1. To succeed on his malicious prosecution claim, Milla was required to
show that he was prosecuted without probable cause. Awabdy v. City of Adelanto,
368 F.3d 1062, 1066 (9th Cir. 2004). Milla argues that he was prosecuted without
probable cause because his prosecution stemmed from an arrest made without
probable cause. Probable cause is determined by examining “the events leading up
to the arrest,” then deciding “whether these historical facts, viewed from the
standpoint of an objectively reasonable police officer, amount to probable cause.”
District of Columbia v. Wesby, 583 U.S. 48, 56-57 (2018) (internal citation and
quotation marks omitted). Milla challenges several of the district court’s evidentiary
rulings, which we review for abuse of discretion. Velazquez v. City of Long Beach,
793 F.3d 1010, 1017 (9th Cir. 2015).
a. The district court did not abuse its discretion when it admitted evidence
about the 204th Street gang and Milla’s prior gang affiliation. Because the location
and circumstances of the homicide indicated that it was potentially gang-related, the
1 Milla’s claim against Defendant City of Los Angeles was dismissed by the court pursuant to Fed. R. Civ. P. 50, a ruling that Milla does not challenge on appeal. 2 We assume the parties’ familiarity with the background of this case and discuss only the facts that are necessary to explain the disposition.
2 23-3661 gang evidence was relevant to whether there was probable cause to arrest Milla. See
Fed. R. Evid. 401. The evidence was not more prejudicial than probative under Fed.
R. Evid. 403. The district court provided a limiting instruction stating that gang
evidence could be considered only for the purpose of determining whether there was
probable cause to arrest Milla. The court also sustained Milla’s objections to
potentially inflammatory gang-related testimony.
b. The district court did not abuse its discretion when it admitted evidence
of Milla’s prior arrest. The prior arrest was a “historical fact” known to Defendants
at the time of Milla’s arrest for homicide and was relevant to the probable cause
determination. Wesby, 583 U.S. at 56. The evidence was not more prejudicial than
probative, and the district court provided a limiting instruction to mitigate any
prejudice.
c. The district court did not abuse its discretion when it admitted evidence
that Milla’s counsel met with witness Ramar Jenkins before Jenkins recanted his
prior testimony. The circumstances of Jenkins’s recantation were relevant to the
jury’s evaluation of his testimony. See United States v. Scheffer, 523 U.S. 303, 313
(1998) (“Determining the weight and credibility of witness testimony” is the
province of the jury.); Gable v. Williams, 49 F.4th 1315, 1323 (9th Cir. 2022)
(noting, in the habeas context, that courts consider the “context [and] circumstances
and timing of [a] recantation” when evaluating its likely effect on a juror).
3 23-3661 d. The district court did not abuse its discretion when it excluded evidence
of Milla’s factual innocence. Milla’s factual innocence was not known to Defendants
at the time of their investigation, so it could not show that they lacked probable
cause. Milla is correct that he was required to show “that the prior proceedings
terminated in such a manner as to indicate his innocence.” Awabdy, 368 F.3d at 1068.
But factual innocence and favorable termination are not synonymous, and the district
court’s order did not bar Milla from introducing evidence that the state dismissed
the case against him. The district court also did not prevent Milla from asking
Defendants about whether and to what extent they investigated other suspects,
including an alternate suspect.
2. Milla argues that the district court erred when it dismissed four
jurors for cause. The dismissal of a juror for cause based on actual bias is reviewed
“for manifest error or abuse of discretion.” United States v. Gonzalez, 214 F.3d 1109,
1112 (9th Cir. 2000) (internal citation and quotation marks omitted). The record
shows that all four jurors demonstrated actual bias in favor of Milla, and the district
court did not abuse its discretion when it struck them for cause.
Milla also argues that the district court erred when it reopened peremptory
challenges to the entire panel after the jury was sworn and a fifth juror was dismissed
for cause. Even assuming error, Milla has not shown that reversal is warranted. He
has “presented no evidence that the seated jurors in his case were partial or otherwise
4 23-3661 failed to perform their duties in any way.” United States v. Lindsey, 634 F.3d 541,
554 (9th Cir. 2011).
3. Milla argues that the district court erroneously instructed the jury.
“[W]hen a party challenges a jury instruction as an incomplete, and therefore
incorrect, statement of the law,” we review the instructions de novo. Hunter v.
County of Sacramento, 652 F.3d 1225, 1232 (9th Cir. 2011) (internal citation and
quotation marks omitted). “Prejudicial error results from jury instructions that, when
viewed as a whole, fail to fairly and correctly cover the substance of the applicable
law.” White v. Ford Motor Co., 312 F.3d 998, 1012 (9th Cir. 2002).
The district court denied Milla’s request to instruct the jury that “being a gang
member alone is not enough to establish probable cause” as part of the gang-
evidence limiting instruction. But the district court separately instructed the jury that
probable cause is evaluated under the totality of the circumstances. Viewed as a
whole, the instructions provided a complete and correct statement of the law.
Milla also argues that the jury instructions were erroneous because they did
not include language from Smiddy v. Varney, 665 F.2d 261, 267 (9th Cir. 1981),
stating that “[w]here the plaintiff has introduced evidence to rebut the presumption
[of prosecutorial independence], the burden remains on the defendant to prove that
an independent intervening cause cuts off his tort liability.” This instruction was
unnecessary because an intervening cause was not at issue in the case. The jury
5 23-3661 instructions “fairly and adequately cover[ed] the issues presented,” “correctly
state[d] the law,” and were not “misleading.” White, 312 F.3d at 1012.
4. The district court did not err when it dismissed Defendant Vander
Horck due to Milla’s failure to comply with Federal Rule of Civil Procedure 25.
“The proper interpretation of Rule 25(a) is a question of law that we review de novo.
Factual findings relevant to the application of Rule 25(a) are reviewed for clear
error.” Barlow v. Ground, 39 F.3d 231, 233 (9th Cir. 1994) (internal citations and
quotation marks omitted). The record supports the district court’s determination that
Milla provided insufficient evidence to corroborate the identity of Vander Horck’s
successor.
5. Finally, Milla asserts that the district court was biased
against him and in favor of Defendants. The record does not support Milla’s
assertion.
AFFIRMED.
6 23-3661