5-20-16 -- joint reply six lasd defendants -- appeal
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05/20/201692 Main Document 2 Submitted (ECF) Reply Brief for review. Submitted byAppellant Gerard Smith in 14−50440, Appellant MaricelaLong in 14−50441, Appellant Gregory Thompson in14−50442, Appellant Mickey Manzo in 14−50446,Appellant Scott Craig in 14−50449, Appellant StephenLeavins in 14−50455. Date of service: 05/20/2016.[9986030] [14−50440, 14−50441, 14−50442, 14−50446,14−50449, 14−50455] (Genego, William)
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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
GERARD SMITH, Defendant-Appellant.
Case No. 14-50440
D.C. No. 2:13-cr-00819-PA-3 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
MARICELA LONG, Defendant-Appellant.
Case No. 14-50441
D.C. No. 2:13-cr-00819-PA-7 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
GREGORY THOMPSON, Defendant-Appellant.
Case No. 14-50442
D.C. No. 2:13-cr-00819-PA-1 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
MICKEY MANZO, Defendant-Appellant.
Case No. 14-50446
D.C. No. 2:13-cr-00819-PA-4 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
SCOTT CRAIG, Defendant-Appellant.
Case No. 14-50449
D.C. No. 2:13-cr-00819-PA-6 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. STEPHEN LEAVINS, Defendant-Appellant.
Case No. 14-50455
D.C. No. 2:13-cr-00819-PA-2 (C.D. Cal., Los Angeles)
________________________________
Joint Reply Brief of Defendants-Appellants ________________________________
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HILARY POTASHNER Federal Public Defender GAIL IVENS ELIZABETH RICHARDSON-ROYER Deputy Federal Public Defenders 321 East 2nd Street Los Angeles, CA 90012-4202 Telephone 213-894-5092 Attorneys for Maricela Long
WILLIAM J. GENEGO Law Office of William Genego 2115 Main Street Santa Monica, California 90405 Telephone: 310-399-3259 Counsel for Gerard Smith
KEVIN BARRY MCDERMOTT 8001 Irvine Center Drive, Suite 1420 Irvine, California 92618 Telephone: 949-596-0102
Counsel for Gregory Thompson
MATTHEW J. LOMBARD Law Offices of Matthew J. Lombard 2115 Main Street Santa Monica, California 90405 Telephone: 310-399-3259
Counsel for Mickey Manzo
KAREN L. LANDAU Law Offices of Karen L. Landau 2626 Harrison Street Oakland, CA 94612 Telephone: 510-839-9230 Attorney for Scott Craig
TODD W. BURNS Burns & Cohan, Attorneys at Law 1350 Columbia Street, Suite 600 San Diego, California 92101 Telephone: 619-236-0244 Attorneys for Stephen Leavins
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Table of Contents
Table of Authorities ................................................................................................................ iv
Introduction ................................................................................................................................ 1
I. The Instructional Errors Denied Defendants The Right to Have the Jury Consider Their Mens Rea Defenses of Reasonable Reliance On Apparent Authority and Good Faith .......................................................................................... 2
A. The Court Erred In Denying a Public Authority Mens Rea Instruction and In Giving an Erroneous Good Faith Instruction. ....... 2
1. It Was Error to Deny a Mens Rea Public Authority Instruction ... 2
2. The Court’s Altered Good Faith Instruction Was Incorrect ........... 8
B. Reversal Is Separately Required Because the Court’s Instructions Erroneously Advised the Jury that Local Officers Could Not Investigate the Introduction of Contraband into MCJ .......................... 12
C. The Improper Dual Purpose Instruction Undermined Defendants’ Right to Have the Jury Consider Their Mens Rea Defense ................. 16
II. The Jury Instructions Allowed Conviction on an Invalid Legal Theory ... 18
A. Relevant Background ....................................................................................... 19
B. Standard of Review ........................................................................................... 21
C. The Obstruction Counts of Conviction Should Be Vacated Because the Government Pressed An Invalid Theory. ........................................... 22
D. The Court Erred in Denying Defendants’ Requested Instructions that the Government Must Show that They Intended to Obstruct a Grand Jury Proceeding, Not Just an FBI Investigation. ...................................... 25
E. The Court Erred in Instructing the Jury that It Could Convict If It Found that Defendants Intended to Obstruct “the Grand Jury Investigation,” Rather that “a Grand Jury Proceeding” ........................ 34
F. The Court Erred in Failing to Instruct the Jury that Defendants Had to Know Their Conduct Was Likely to Influence a Grand Jury Proceeding ........................................................................................................... 36
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III. The Court Erred In Excluding the Testimony of Paul Yoshinaga, a Key Defense Witness………………………………………………………………………………………….. 37
A. Yoshinaga’s Testimony was Relevant .......................................................... 39
B. Yoshingaga’s Testimony Was Not Excludable Under Rule 403 ......... 42
C. The Error Was Not Harmless, and It Infringed Leavins’s Constitutional Right to Present a Defense ................................................. 44
D. The Government Improperly Capitalized on the Erroneous Preclusion Order ................................................................................................ 47
IV. The District Court’s Many Erroneous Evidentiary Rulings, Alone and Cumulatively, Resulted in a Denial of the Right to Present a Complete Defense ........................................................................................................................... 50
A. The Erroneous Evidentiary Rulings Individually Require Reversal. 50
1. The Court Improperly Excluded Evidence Rebutting the Contention that Brown Could Have Been Safely Held at MCJ. .. 50
2. The Court Improperly Admitted Evidence Concerning Specific Instances of Inmate Abuse. ..................................................................... 52
3. The Court Improperly Limited Cross-Examination of Pearson Regarding the Writ. ................................................................................... 55
4. The Court Erroneously Precluded the Defense From Cross-examining LASD Sergeant Martinez About a Legal Opinion. .... 57
5. The Court Improperly Refused to Permit the Defense to Question AUSA Middleton as an Adverse Witness ........................................... 59
6. The Court Erroneously Excluded Evidence of Baca’s Attitude and the Specific Orders He Gave in Late September ..................... 60
7. The Court Made Other Erroneous Evidentiary Rulings................ 62
B. The Cumulative Effect of the Errors Require Reversal ......................... 63
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V. The Court’s Dismissal of Juror Five Violated Defendants’ Sixth Amendment Jury Trial Right .................................................................................. 65
A. Standard of Review and Applicable Legal Test ....................................... 66
B. There Is a Reasonable Possibility the Juror’s Initial Request to Be Excused Stemmed From a Conflict Amongst the Jurors ...................... 68
VI. The Defendants Did Not Have Fair Notice that Their Actions Violated Federal Criminal Law ................................................................................................ 73
VII. The Convictions Rest On a Legally Mistaken Definition of “Corruptly” .. 75
VIII. The Case Should Be Reassigned to a Different Judge on Remand. ............ 76
Conclusion……………………………………………………………………………………………………………… 77
Addendum………………………….………………………………………………………………………………..... 78
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Table of Authorities
Federal Cases
Alcala v. Woodford, 334 F.3d 862 (9th Cir. 1993) ........................................................................................... 44
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378 (2015)....................................................................................................... 15
Bisno v. United States, 299 F.2d 711 (9th Cir. 1962) ........................................................................................... 41
Chapman v. California, 386 U.S. 18 (1967) .............................................................................................................. 64
Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977) ........................................................................................... 15
Comm. of Kentucky v. Long, 837 F.2d 727 (6th Cir. 1988) ........................................................................................... 15
Idaho v. Horiuchi, 253 F.3d 359 (9th Cir.) ..................................................................................................... 15
In re Neagle, 135 U.S. 1 (1890) ................................................................................................................ 15
New York v. Tanella, 374 F.3d 141 (2d Cir. 2004) ............................................................................................ 15
North Carolina v. Cisneros, 947 F.2d 1135 (4th Cir. 1991) ........................................................................................ 15
Ohio v. Thomas, 173 U.S. 276 (1899) .................................................................................................... 14, 15
Scheuer v. Rhodes, 416 U.S. 232 (1974) ........................................................................................................... 74
United States ex rel. Drury v. Lewis, 200 U.S. 1 (1906) ................................................................................................................ 15
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United States v. Aguilar, 515 U.S. 593 (1995) .................................................................................................. passim
United States v. Barker, 546 F.2d 940 (D.C. Cir. 1976) ..................................................................................... 7, 8
United States v. Beard, 161 F.3d 1190 (9th Cir. 1998) ........................................................................................ 73
United States v. Boulware, 384 F.3d 794 (9th Cir. 2004) ........................................................................................... 64
United States v. Brown, 562 F.2d 1144 (9th Cir. 1977) ................................................................................. 11, 20
United States v. Bryant, 461 F.2d 912 (6th Cir. 1972) ........................................................................................... 59
United States v. Bush, 626 F.3d 527 (9th Cir. 2010) ........................................................................................... 41
United States v. Cannon, 475 F.3d 1013 (8th Cir. 2007) ........................................................................................ 73
United States v. Christensen, 801 F.3d 970 (9th Cir. 2015) ............................................................................. 67, 69, 72
United States v. Custer Channel Wing Corp., 376 F.2d 675 (4th Cir. 1967) .................................................................................... 41, 43
United States v. Doe, 710 F.3d 1134 (9th Cir. 2013)................................................................................. passim
United States v. Egan, 860 F.2d 904 (9th Cir. 1988) ........................................................................................... 22
United States v. Fierros, 692 F.2d 1291 (9th Cir. 1982) ............................................................................ 5, 6, 7, 8
United States v. Fulbright, 105 F.3d 443 (9th Cir. 1997) .................................................................................... 23, 36
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United States v. Hardy, 289 F.3d 608 (9th Cir. 2002) .................................................................................... 53, 60
United States v. Hopper, 177 F.3d 824 (9th Cir. 1999) ...................................................................... 27, 29, 30, 31
United States v. Keys, 133 F.3d 1282 (9th Cir. 1998) ........................................................................................ 12
United States v. Lopez–Alvarez, 970 F.2d 583 (9th Cir. 1992) ........................................................................................... 64
United States v. Mkhsian, 5 F.3d 1306 (9th Cir. 1993) ............................................................................................. 12
United States v. Moran, 493 F.3d 1002 (9th Cir. 2007) ........................................................................................ 44
United States v. Orm Hieng, 679 F.3d 1131 (9th Cir. 2012) ................................................................................. 11, 47
United States v. Pablo Varela-Rivera, 279 F.3d 1174 (9th Cir. 2002) ........................................................................................ 54
United States v. Perdomo-Espana, 522 F.3d 983 (9th Cir. 2008) ............................................................................................. 2
United States v. Perez, 116 F.3d 840 (9th Cir. 1997) ........................................................................................... 37
United States v. Petersen, 513 F.2d 1133 (9th Cir. 1975) ............................................................................ 3, 5, 7, 8
United States v. Rivera-Corona, 618 F.3d 976 (9th Cir. 2010) .................................................................................... 42, 54
United States v. Smith-Baltiher, 424 F.3d 913 (9th Cir. 2005) ............................................................................... 3, 5, 6, 8
United States v. Stever, 603 F.3d 747 (9th Cir. 2010) ........................................................................................... 64
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United States v. Symington, 195 F.3d 1080 (9th Cir. 1999) .......................................................................... 67, 68, 69
United States v. Thomas, 116 F.3d 606 (2d Cir. 1997) ............................................................................................ 72
United States v. Thomas, 32 F.3d 418 (9th Cir. 1994) ............................................................................................. 48
United States v. Thompson, 37 F.3d 450 (9th Cir. 1994) ............................................................................................. 41
United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d Cir. 2008) ..................................................................................... 28, 37
United States v. Velasquez-Bosque, 601 F.3d 955 (9th Cir. 2010) ........................................................................................... 63
United States v. Williamson, 439 F.3d 1125 (9th Cir. 2006) ........................................................................................ 63
Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011) ........................................................................................... 67
Federal Statutes
18 U.S.C. § 1503 ............................................................................................................. passim
28 U.S.C. § 1442(a) .................................................................................................... 15, 73, 74
Federal Rules
Fed. R. Crim. P. 23 ........................................................................................................... 66, 67
Fed. R. Crim. P. 30 .................................................................................................................. 12
Fed. R. Evid. 403 ................................................................................................ 39, 43, 54, 61
Fed. R. Evid. 611(c)(2) ............................................................................................................ 59
Other Authorities
Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal Officers, State Criminal Law and the Supremacy Clause, 11 Yale L.J. 2195 (2003) .................................................................................................... 74
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INTRODUCTION
The government’s 65 page statement of facts is an apparent attempt to
convince the Court the evidence of guilt was overwhelming, and any errors thus
harmless. But, as suggested by the jury’s six days of deliberations, the evidence
was not overwhelming. Clerk’s Record: 431, 434, 435, 436, 465, 467.
In attempting to make it appear so, the government editorializes the facts.
The government’s statement of facts makes conclusory assertions as to
Defendants’ purported intent that are unabashedly argumentative; attributes
roles and actions to individual Defendants they did not have; assigns arguments
to Defendants they did not make; fails to acknowledge evidence that contradicts
its assertions; and makes erroneous statements of fact. Collectively they
purposefully paint a picture of a carefully designed operation in which
Defendants played an integral and decision-making role, in sharp contrast to
what the record shows was, in reality, a rapidly unfolding series of events fueled
by a lack of trust between the Sheriff and the FBI.
The number of overstatements and misstatements in the government’s
statement of facts precludes detailing them all, but their significance requires
that they not be ignored. Defendants have catalogued examples of such instances
in an addendum to this reply. See Addendum, infra at 77-86.
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REPLY ARGUMENT
I. The Instructional Errors Denied Defendants the Right to Have the Jury
Consider Their Mens Rea Defenses of Reasonable Reliance On Apparent
Authority and Good Faith.
Four separate instructional errors prevented the jury from fairly
considering and accurately determining whether the government proved the
Defendants acted with the mens rea required by the obstruction of justice counts
and corresponding conspiracy charge. Defendants’ Joint Opening Brief (“JOB”)
38-56. The government fails to rebut the showing of error as to any of them.
A. The Court Erred In Denying a Public Authority Mens Rea
Instruction and In Giving an Erroneous Good Faith Instruction.
1. It Was Error to Deny a Mens Rea Public Authority Instruction.
Defendants’ requested instruction stated that an officer who acts pursuant
to orders of superiors that the officer reasonably believes are lawful, lacks the
mens rea required for conviction. JOB 41. The government concedes that
Defendants were entitled to the instruction if “it ‘has support in the law and
some foundation in the evidence.’” Government’s Answering Brief (“GAB”) 81,
quoting United States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008).
Defendants’ requested instruction had both. JOB 41-45; 1 ER: 70. The
government’s attempt to establish otherwise rests on its contention that a public
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authority defense may only be used to excuse the commission of a crime, and
thus requires actual authority to commit the charged crime. Since the proposed
instruction did not include such a requirement, the government contends it was
not supported by the law. The government’s arguments fail because the law
recognizes that a public authority defense based on reasonable reliance on
apparent authority may also negate mens rea, meaning no crime was committed,
and there was abundant evidence which supported that defense and the
requested instruction.
a) The Instruction Is Supported By the Law.
Defendants identified decisions of this Court which support the requested
instruction, including United States v. Doe, 710 F.3d 1134, 1146-47 (9th Cir.
2013), which recognizes that for certain offenses, a public authority defense may
negate an element of the crime. Id. at 1146-47; JOB 41-42. Defendants also cited
several decisions which recognized the related principle that a defendant’s
reasonable belief that his or her actions were lawfully authorized, even if
mistaken, may “negate the specific intent required for culpability,” as it fits
within the narrow category of cases where a mistake of fact about the law is a
defense. JOB 39-40, quoting United States v. Smith-Baltiher, 424 F.3d 913, 924-
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25 (9th Cir. 2005); United States v. Petersen, 513 F.2d 1133, 1134-35 (9th Cir.
1975); see also, United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir. 1982).
The government attempts to distinguish Doe by maintaining it only affects
the burden of proof, and not the elements of a public authority defense. The
government thereby asserts that Defendants’ position that they “acted pursuant
to their superiors’ orders which they reasonably believed were lawful” is
“irrelevant,” as they were not authorized to obstruct justice. GAB 83.
The government’s attempt to limit Doe is proved wrong by the opinion
itself: the elements of a public authority defense “depend[] on both the statute at
issue and the facts of the specific case.” Doe, 705 F.3d at 1147. The statute at
issue here only proscribes acts done with a specific prohibited purpose, as
opposed to the general intent crime in Doe. And the facts established that
Defendants lacked the prohibited mens rea because they were acting pursuant to
what they reasonably believed were lawful orders of their superiors.
Where the defense is used to negate the element of mens rea, it means no
crime was committed, and does not require an agent who can empower someone
to commit an illegal act. Thus, the absence of such a requirement from
Defendants’ proposed instruction does not mean it is not supported by the law.
To the contrary, Doe’s recognition that a public authority defense may negate an
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element of an offense provides sufficient legal support for the requested
instruction.
The government’s attempt to discredit Defendants’ reliance on Smith-
Baltiher, Fierros and Petersen similarly fails.
The government asserts that the “intent standard is different and simpler”
in Smith-Baltiher than in this case. GAB 85-86. While the facts are different, the
“intent standard” is the same -- attempted illegal reentry is a specific intent crime
requiring one act with a specific purpose prohibited by the statute, entry into the
United States without the consent of the Attorney General (Smith-Baltiher, 424
F.3d at 923), just as a violation of 18 U.S.C. § 1503 is a specific intent crime that
requires one act with the prohibited purpose of obstructing a judicial proceeding.
And just as “a mistake of fact provides a defense to a crime of specific intent
such as attempted illegal reentry,” Smith-Baltiher, 424 F.3d at 924, it provides a
defense to the specific intent crime of obstruction of justice.1
1 The government twice mistakenly attributes a quotation to the Court in Smith-Baltiher to suggest (incorrectly) that the defendant in that case was only permitted to present a reasonable mistake of fact defense because “knowledge of an ‘independently determined legal status [was] one of the operative facts of the crime.’” GAB at 85, quoting Smith-Baltiher, 424 F.3d at 924; see GAB 86 (contrasting this case with Smith-Baltiher by asserting Defendants here “did not
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The government’s contention that Fierros does not support the requested
instruction because Defendants were not prosecuted under a “complex
regulatory scheme[],” is also wrong. GAB 86. Fierros identified two
circumstances where such a defense is available, and this case, like Petersen, fits
the first circumstance: where the defendant is ignorant of a “condition that is one
of the operative facts of the crime.” Id., 692 F.2d at 1294. In Petersen, the
defendant reasonably believed the person was authorized to sell the property in
question, and in this case, Defendants reasonably believed their superiors’ orders
were lawful.
The government’s only attempt to distinguish Peterson is to assert in a
parenthetical that the Court in Fierros held that Petersen comes within one of
the two categories of cases where “a defense of ignorance of the law is
permitted.” GAB 86. The government presumably includes this assertion to
need knowledge of any ‘independently determined legal status or condition[].’”) quoting Smith-Baltiher, 424 F.3d at 924 (brackets added by government).
The quotation is actually from the Court’s opinion in Fierros, which Smith-Baltiher quoted. Contrary to the government’s suggestion, the quote did not refer to the crime at issue in Smith-Baltiher, attempted illegal entry, but rather it referred to the crime in Petersen, embezzlement or theft of federal property. See Smith-Baltiher, 424 F.3d at 924, quoting Fierros, 692 F.2d at 1294, citing United States v. Petersen, 513 F.2d 1133 (9th Cir. 1975).
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suggest that Defendants’ reliance on Petersen is misplaced because of the general
rule that ignorance of the law is not a defense. GAB 84-85, citing Fierros, 692
F.2d at 1294. This attempt is meritless because in Fierros, the Court clarified
that Petersen is an example of a case where “the mistake of law is for practical
purposes a mistake of fact.” Fierros, 692 F.2d at 1294.
Importantly, Fierros cited the concurring opinion in United States v.
Barker, 546 F.2d 940, 945-54 (D.C. Cir. 1976), which parallels the circumstances
here – the defendants there were prosecuted for conspiracy to violate civil rights
based on having burglarized a psychiatrist’s office to obtain records regarding
Daniel Ellsberg who was being investigated for leaking the Pentagon Papers. The
defendants maintained they lacked the mens rea required for conviction because
they reasonably relied on the apparent authority conveyed by CIA operative E.
Howard Hunt that their actions were authorized by the government. Id. 546 F.2d
at 945-54 (Wilkey, J., concurring). Barker is the seminal case recognizing that a
reasonable mistake of fact about the law provides a defense in the circumstances
of this case. The support it provides for the requested instruction here is
especially significant, as Fierros cites to Barker, and equates Barker with
Petersen. Further, Smith-Baltiher adopts that portion of the Fierros’s opinion.
Fierros, 692 F.2d at 1294; Smith-Baltiher, 424 F.3d at 924.
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b) The Instruction Was Supported By the Evidence.
The government does not dispute Defendants’ showing that there was
abundant evidence supporting the requested instruction, i.e., there was testimony
the Defendants’ actions were authorized by their superiors, and that it was
reasonable for Defendants to believe the orders were issued for a lawful purpose.
JOB 43-45.
Instead, the government makes the inapposite argument that it was proper
for the court to deny the instruction because there was no evidence Defendants
were authorized to obstruct justice. GAB 86-87. As the government well knows,
that was never the defense. Defendants repeatedly explained in the district court
and before this Court that their mens rea defense is that they did not obstruct
justice, not that they were authorized to do so. JOB 45. The absence of evidence
that Defendants were authorized to obstruct justice could not possibly justify
denying the instruction.
2. The Court’s Altered Good Faith Instruction Was Incorrect.
The court separately erred when it added a clause to the good faith
instruction that materially altered its meaning. As altered, the instruction
mistakenly allowed the jury to find that an officer who relied in good faith on a
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superiors’ order that the officer reasonably and objectively believed were lawful
could possess the unlawful intent required for conviction.2
The government does not dispute the premise that an officer who relied in
good faith on superiors’ orders that the officer reasonably and objectively
believed to be lawful could not have the corrupt intent required for conviction.
Nor does the government dispute that the only reason for the court to add the
clause was to change the meaning of the instruction to make it consistent with
the dual-purpose instruction and allow the jury to convict even if it found a
defendant relied in good faith on superiors’ orders. And the government offers
no explanation as to why the court would alter the good faith instruction in this
manner in Defendants’ trial, but not in either of co-defendant Sexton’s two trials,
except to neutralize Defendants’ good faith defense. See JOB 46, 49.
2 The court altered the meaning by adding the following underlined clause to the agreed upon good faith instruction: “Evidence that a defendant relied, in good faith, on the orders the defendant received from the defendants’ superior officers, and that the defendant reasonably and objectively believed those orders to be lawful, is inconsistent with unlawful intent and is evidence you may consider in determining if. . . . a defendant had the required unlawful intent.” JOB 48, quoting ER 1A: 262-63 (emphasis added).
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Instead, the government responds by misstating Defendants’ claim.3 The
government then argues there was no error because the clause added by the
court was technically “not inaccurate.” GAB 96; Id. 97. It is true that the jury
could consider such evidence, and thus the clause viewed in isolation “was not
inaccurate.” But that argument ignores the substance of the error.
In fact, the government never addresses the substance of the error, other
than indirectly, by suggesting Defendants’ argument depends on “an
overwrought reading of the instruction.” GAB 96. This assertion rests on the
proposition that the court added the clause for no reason, which of course cannot
be true.
The government’s contention that only Leavins preserved objection to the
altered instruction is contradicted by the record. GAB 94. Smith accepted the
instruction as it had been proposed by the defense and government, but as the
3 The government twice represents, incorrectly, that Defendants’ claim is that the court “should have instructed the jury that such reliance ‘provided a complete defense.’” GAB 95, quoting JOB 95; GAB 97. Defendants used the phrase “complete defense” in their opening brief to explain the nature of the error, but never argued or suggested it should have been included in the instruction. Defendants’ argument is that the instruction should have been given as proposed by the parties, and as it was given in both Sexton trials, without the additional clause.
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government concedes, Smith expressly added that he was preserving the dual-
purpose objection. GAB 94, n.20. This was a reference to the clause added by the
court, as it altered the instruction to make it consistent with the dual-purpose
instruction. ER 1A: 241; JOB 49.
The government’s assertion that the claim is subject to plain error review
as to the remaining Defendants is incorrect, as case law holds that an objection
to an instruction by one defendant preserves it as to other defendants. See
United States v. Brown, 562 F.2d 1144, 1147 n.1 (9th Cir. 1977); see also, United
States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir. 2012). Thus, Leavins’
objection preserved the error as to all defendants who did not actively oppose the
objection. Further, the Court should exercise its discretion to consider the error
as to all Defendants, given that the government can show no prejudice in
allowing the claim to be considered on behalf of the remaining Defendants, and
given that it would be particularly unjust to limit relief to Leavins and Smith.4
4 See United States v. Mkhsian, 5 F.3d 1306, 1310, n.2 (9th Cir. 1993) (granting reversal to co-defendant who adopted instructional error argument of co-appellant in his reply brief, where it would not be prejudicial to the government, and because “it would be unjust to reverse” the conviction of one defendant and not the other), overruled on other grounds, United States v. Keys, 133 F.3d 1282 (9th Cir. 1998).
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Additionally, even if the question is reviewed for plain error, the Defendants are
entitled to relief. The court plainly erred in altering the good faith instruction
and the error affected the Defendants’ substantial rights. Finally, any question
as to whether the claim was preserved should be resolved in favor of the
Defendants, given the trial court’s failure to comply with Fed. R. Crim. P. 30.
JOB 49.
B. Reversal Is Separately Required Because the Court’s Instructions
Erroneously Advised the Jury that Local Officers Could Not
Investigate the Introduction of Contraband into the Jail.
The government makes two arguments in response to Defendants’ claim
that the court erred in instructing the jury that Anthony Brown’s possession of
contraband would not be a violation of specified California Penal Code
provisions if it was directed by the FBI, and that the effect of that erroneous
instruction was to tell the jury that Defendants could do no further investigation
once “they found out that that was an FBI phone. . . .” JOB 51; ER 1A: 112, 113,
257; see also ER 1A: 114-119; 138, 170-71.
The government first argues that it was not “the purpose nor the import of
the instruction” to advise the jury that Defendants could do no further
investigation after the LASD learned it was an FBI phone. GAB 106-07. The
record proves the opposite. The court plainly stated its view of the law that
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Defendants could not investigate once the LASD learned it was an FBI phone,
and the court made known its intention to instruct the jury accordingly. JOB 51;
ER 1A: 112, 113 (local officers could investigate “up until the time they found
out that that was an FBI phone. . . . Once they found out it was an FBI phone,
ballgame’s over.”); see also ER 1A: 114-119; 138, 170-71, 213-223. The
prosecutor’s rebuttal argument using the court’s own analogy confirms that the
instruction conveyed this point:
When the head of the FBI called Leroy Baca and accepted
[sic] it was an FBI phone, game over. There was nothing more to
do. It was done.
RT 4008 (emphasis added)
If, as the government contends, the court’s concern and purpose was that
the jury not be misled by testimony from Leavins and Craig as to whether there
was possibly a violation of the Penal Code provisions, the court could have
instructed the jury as to the elements of the offenses. There was no need to
instruct the jury that there was no violation if the conduct occurred “at the
direction of the FBI.” ER 1A: 257.
The government’s second argument -- that the court’s instruction was
legally correct, i.e., that “if Brown possessed any cellular telephone at the
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direction of the FBI, no violation of California Penal Codes would have
occurred” – is also wrong. GAB 108.
The government relies on Ohio v. Thomas, 173 U.S. 276, 283 (1899),
stating that federal officers “are not subject to arrest . . . under the laws of the
state in which their duties are performed.” GAB 109. Thomas is not only
distinguishable on the facts,5 but the quoted statement is not good law; it is
contradicted by a long history of cases dating back more than 100 years in which
federal agents were actually prosecuted,6 and cannot be reconciled with
5 Thomas involved the application of a state law to a federal soldier’s home, and the home was “a federal creation, and [was] under the direct and sole jurisdiction of congress.” Thomas, 173 U.S. at 281. Given that the home was subject to the exclusive jurisdiction of the federal government, “the police power of the state [had] no application” to its operation. Id., 173 U.S. at 283.
6 See, e.g., In re Neagle, 135 U.S. 1 (1890) (Deputy U.S. Marshal prosecuted for murder); United States ex rel. Drury v. Lewis, 200 U.S. 1, 2 (1906) (enlisted officer prosecuted for shooting suspect to prevent him from escaping); see New York v. Tanella, 374 F.3d 141 (2d Cir. 2004) (DEA agent prosecuted by state for killing drug dealer after high-speed chase); Comm. of Kentucky v. Long, 837 F.2d 727 (6th Cir. 1988) (FBI agent prosecuted by state after having approved informant’s commission of burglaries); Clifton v. Cox, 549 F.2d 722 (9th Cir. 1977) (federal agent prosecuted for shooting suspect who fled in the course execution of a search warrant).
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Congress’ subsequent passage of 28 U.S.C. § 1442(a).7 Thomas provides no
support for the court’s instruction.8
The government also seeks to defend the instruction by equating
possession “at the directions of the FBI” with authorization under the Penal
Code sections. Thus, the government asserts that regardless of whether
authorization is an affirmative defense, or if the possession of contraband must
“be unauthorized for a crime to occur,” the “instruction correctly stated that ‘no
violation of these’ codes occurred if ‘Brown possessed any contraband . . . at the
direction of the FBI.’” GAB 109-110, quoting ER 257 (ellipsis added by
government). But a federal agent is not among the people who are empowered to
7 Section 1442(a) allows federal agents charged with violations of state law to remove the case to federal court and thus necessarily assumes that federal agents can, and sometimes are, prosecuted for violations of state law for acts engaged in while carrying out their duties as federal agents. See Idaho v. Horiuchi, 253 F.3d 359, 376-77 (9th Cir.) (en banc), vacated as moot, 266 F.3d 979 (9th Cir. 2001).
8 Contrary to the government’s apparent belief, Defendants did not cite Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015) as support for the proposition that federal agents can be arrested. GAB 109, n. 26. Armstrong is only relevant in that it establishes that the Supremacy Clause does not provide federal agents with the power to authorize violations of state law. JOB 53.
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grant authorization under the Penal Code sections. The government never
identifies the source of a federal agent’s supposed power to authorize an inmate
in a county jail to possess contraband under the Penal Code, because there is
none. JOB 53-54.
The government’s suggestion that the instruction was not prejudicial
because the court instructed the jury that local officers “have the right to
investigate potential violations of state law,” including “potential violations of
state law by federal agents,” ignores that the instruction as a whole wrongly
advised the jury that Defendants could do no lawful investigation after the LASD
learned it was an FBI phone. JOB 54; pp. 12-13, supra. Further, while the court’s
instruction did not expressly “foreclose defendants’ arguments regarding their
intent” (GAB 107), that was its practical effect. It foreclosed the jury from
accepting Defendants’ argument that their intent was to lawfully investigate,
because according to the court’s instruction, there was no potential violation of
state law, and if there was no potential state law violation, local officers could not
investigate. JOB 54, ER 1A: 256.
C. The Improper Dual-Purpose Instruction Undermined Defendants’
Right to Have the Jury Consider Their Mens Rea Defense.
The parties’ disagreement as to the fourth instructional error impacting
the mens rea and good faith defense – the court’s dual-purpose instruction --
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turns on whether Defendants could simultaneously act in good faith for the
purpose of following orders they reasonably and objectively believed were lawful,
and do so for the unlawful purpose of obstructing justice. JOB 55-56; GAB 88-91.
The government attempts to rebut Defendants’ contention that these
purposes are mutually exclusive by analogizing the payment of money for the
mixed motive of friendship and a desire to bribe, and taking an action for two
unlawful purposes, to steal money from clients and evade taxes. GAB 90. The
government’s analogies and argument fail because Defendants here did not
contend they were acting for a purpose that was lawful, but rather that their very
purpose was to act lawfully, in compliance with their obligation to obey
superiors’ orders. Government’s Excerpts of Record (“GER”) 1552 (LASD,
“Obedience to Laws, Regulations and Orders”). Defendants did not maintain
they had a “desire” to follow a lawful order as the government puts it, which
wrongly suggests it was a voluntary choice, but rather that they had an obligation
to carry out all lawful orders and thus their purpose was to act in compliance
with the law.
The government suggests that even if these purposes were mutually
exclusive, there was no error because Defendants “also claimed, regardless of
orders, that” their actions were motivated by other reasons, such as keeping
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Brown safe. GAB 90 (emphasis added). But Defendants maintained they took the
actions described by the government because of the orders, not regardless of
them.
Finally, the government’s suggestion that there was no prejudice because if
the purposes were mutually exclusive “then the instruction would have no effect
at all” (GAB 90), ignores that the instruction endorsed the proposition that that
Defendants could act in good faith and simultaneously have the mens rea
required for conviction. The dual-purpose instruction, like the court’s alteration
of the good faith instruction, allowed the government to advance the erroneous
argument that even if Defendants were carrying out what they believed was a
legitimate investigation, they could still be guilty.
II. The Jury Instructions Allowed Conviction on an Invalid Legal Theory
The government repeatedly led the jurors to believe that they could
convict if they found Defendants intended to obstruct the FBI (as opposed to a
grand jury proceeding), and the district court made three instructional errors
that allowed conviction on that invalid theory. Though the four issues raised in
this context are closely related, the government treats them as independent,
which allows it to (1) make meritless waiver/forfeiture arguments, (2) press an
incorrect abuse of discretion standard of review, and (3) ignore the cumulative
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effect of the instructional errors. Before turning to the government’s arguments,
Defendants summarize key aspects of the relevant background.
A. Relevant Background
The parties submitted disputed proposed jury instructions a month before
trial. Even at that point, it was apparent to defense counsel that the government’s
case would be based largely on the theory that Defendants intended to obstruct
the FBI, rather than a grand jury proceeding. To prevent the jury from
convicting on that invalid theory, defense counsel proposed two similar
instructions that told the jury that the government had to prove Defendants
“acted with the intent to obstruct a grand jury investigation, and not just an FBI
or US Attorney’s Office investigation.” ER 1A: 40; see also ER 1A: 37.9
The government objected to both instructions, claiming that they “would
exclude a jury from finding obstruction even if the federal agents were acting as
arms of the grand jury.” ER 1A: 38, 41. Defense counsel responded that “[e]ven if
it were true that interference with an agent who was acting as an arm of the
9 The instructions requested by Leavins, Smith and Manzo preserved the claim as to Thompson, Craig, and Long, as did their objections to the court’s use of the phrase “grand jury investigation. See Brown, 562 F.2d at 1147, n. 1; ER 1A: 123-128.
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grand jury could be the basis for a conviction,” that would not obviate the need
for the requested instructions, but would instead require “additional
instruction(s) telling that to the jury and defining what the government must
prove for an agent to be deemed an arm of the grand jury.” ER 1A: 39.
At the first jury instruction conference during the fifth week of trial,
defense counsel said the instructions discussed above were necessary because
“there’s been a lot of mention during the trial of obstructing the FBI . . . .” ER
1A: 131. Indeed, FBI Agent Dahle bluntly testified that Defendants “were on
notice that it was an FBI investigation. They should not have obstructed it.” ER
2: 758. Without explanation, the court declined to give the requested
instructions.
Defense counsel also argued that the Ninth Circuit model instruction on
§ 1503(a)’s elements was not sufficient because the meaning of obstructing the
“due administration of justice needs to be . . . defined . . .” ER 1A: 123. Defense
counsel pointed out that it would be problematic to define that phrase by
referring to an intent to obstruct a “grand jury investigation,” when in fact the
government must show that the defendant intended to obstruct a “grand jury
proceeding.” Id. The government responded, “I don’t think there’s a significance
between grand jury proceeding and grand jury investigation. I think that’s what
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grand juries do, they investigate.” Id. Defense counsel replied that “the offense is
obstruction of a grand jury proceeding, not an investigation,” and “if you don’t
restrict it to a proceeding and just have to do with an investigation, it becomes
much more amorphous and you run into an Aguilar problem.” Id. 124, 126. By
“an Aguilar problem,” defense counsel was referring to the jurors being misled
into believing that they could convict based on finding that Defendants intended
to obstruct the FBI. See United States v. Aguilar, 515 U.S. 593 (1995).
The next day, the court came back to this issue and said that it would give
the model jury instruction but would replace the generic references to
obstructing justice with references to a “grand jury investigation.” ER 1A: 160.
Defense counsel maintained their objection, ER 1A: 224, but the court overruled
it and instructed the jurors that they had to find:
First, the defendant influenced obstructed or impeded or tried to
influence, obstruct, or impede a federal grand jury investigation; and
Second, the defendant acted corruptly with knowledge of a
pending federal grand jury investigation and with the intent to
obstruct the federal grand jury investigation.
ER 1A: 260-61.
B. Standard of Review.
The government claims that the jury instruction issues raised here are
reviewed for an abuse of discretion. GAB 119. The central issue is whether the
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government was permitted to proceed with an invalid legal theory – the
instructional issues relate to the court’s failing to prevent, or facilitating, the
government from proceeding on that invalid theory. The question whether the
government was permitted to proceed with an invalid theory is reviewed de
novo. United States v. Egan, 860 F.2d 904, 907 (9th Cir. 1988).
The government claims that the invalid theory issue should be reviewed
for plain error because “defendants never raised [it] before the district court.”
GAB 126. Defendants pointed out the government’s invalid theory in the
disputed jury instructions, and again in the jury instructions conference, stating
that the requested instructions were necessary because “there’s been a lot of
mention during the trial of obstructing the FBI . . . .” ER 1A: 131. The
government does not explain why this was insufficient, and it is not apparent
what more Defendants could have done to preserve the issue.
C. The Obstruction Counts of Conviction Should Be Vacated Because
the Government Pressed An Invalid Theory.
The government agrees that “[w]here a jury returns a general verdict that
is potentially based on a theory that was legally impermissible or
unconstitutional, the conviction cannot be sustained.” United States v. Fulbright,
105 F.3d 443, 451 (9th Cir. 1997) (emphasis in original), overruled on other
grounds by United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc);
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GAB 127. “In contrast, a reviewing court may uphold a general verdict if there
was sufficient evidence on at least one of the submitted grounds for conviction,
even if there was insufficient evidence to sustain the other theories of the case.”
Fulbright, 105 F.3d at 451 n.5. To avoid the automatic reversal that results in the
invalid theory context, the government re-casts Defendants’ claim as falling into
the insufficient evidence context, asserting that: (1) the parties’ disputes at trial
were entirely factual, not legal, see GAB 114, 126; thus (2) Defendants must be
claiming that the jury potentially convicted them based on a theory for which
there was insufficient evidence, rather than based on an invalid legal theory. See
GAB 126-29.
The government’s premise is wrong, because the parties’ disputes at trial
were not purely factual. There were legal disputes with respect to the jury
instructions that Defendants proposed to prevent conviction based on an invalid
theory. The government prevailed on those disputes, and now the question of
whether the jury potentially convicted on an invalid theory is before the Court.
Notably, in arguing that the parties’ trial disputes were purely factual the
government relies on a portion of the opening brief that it misunderstands. See
GAB 126-27 (citing JOB 58-64). In that portion, Defendants discuss “five
categories of so-called ‘obstructive conduct’” on which the government relied at
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trial, which “related almost exclusively to the FBI’s investigation.” JOB 57. The
government claims that discussion “demonstrates the parties’ dispute was
factual.” GAB 126. But, that discussion shows that the government did countless
things that incorrectly “led the jurors to believe they could convict under § 1503
if they concluded that the Defendants intended to obstruct ‘an FBI
investigation.’” JOB 57 (citing ER 2:758). That is, the discussion highlights
aspects of the government’s trial presentation that led the jury to believe it could
convict based on an invalid theory, it does not show that the parties’ disputes
during trial were purely factual.
The government’s answering brief unwittingly makes the same point,
because nearly its entire discussion of the trial evidence focuses on things
Defendants allegedly did to obstruct the FBI. See GAB 8-68. It is apparent that
none of those things, except for the alleged effort to “hide” Brown from a grand
jury, could be construed as having been done with an intent to obstruct a grand
jury proceeding.10 The government does not even argue that those things were
10 One particularly glaring example is the government’s claim that the conspiracy to obstruct a grand jury proceeding began on August 18, 2011 (GAB 15), a point at which none of the Defendants knew anything about a grand jury proceeding. See JOB 59, ER 2: 683.
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done with an intent to obstruct a grand jury proceeding. Instead, in a two-page
section at the end of its summary of the trial evidence, which is titled
“Knowledge of the grand-jury investigation,” the government says that
Defendants knew there was a “grand jury investigation” because grand jury
subpoenas had been issued to LASD. GAB 68-70. The government seems to
think that knowledge of a grand jury proceeding, coupled with an intent to
obstruct the FBI, is enough to convict, even without a showing that Defendants
specifically intended to obstruct a grand jury proceeding. It is not – indeed, it
amounts to less than the government had in Aguilar, where there was no dispute
that the defendant knew about and intended to obstruct a grand jury proceeding,
and the only question was whether he knew his conduct was likely to do so.
Having mis-cast Defendants’ invalid theory claim, the government does
not respond to it. Presumably the government has no good response.
D. The Court Erred in Denying Defendants’ Requested Instructions that
the Government Must Show that They Intended To Obstruct a
Grand Jury Proceeding, Not Just an FBI Investigation.
With respect to the district court’s refusal to instruct the jury that it had to
find Defendants intended to obstruct a grand jury proceeding, not just an FBI
investigation, the government makes two conflicting arguments.
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First, the government claims that the court did not err because other
instructions that were given “adequately covered defendants’ theory that they
merely obstructed an FBI investigation.” GAB 119-20; see also GAB 121. As an
initial matter, Defendants did not request the subject instructions because their
“theory” was that they “merely obstructed an FBI investigation.” Instead, they
requested the instructions to prevent the government from getting a conviction
based on an invalid legal theory. And the government points to nothing in the
instructions given that told the jurors that they could not convict based on
finding that Defendants intended to obstruct an FBI investigation. Given the
government’s trial presentation in this case, that risk was especially strong.
It is apparent that the government does not really believe that the
instructions given ameliorated that risk in any way, because the government also
argues that the requested instructions “were misleading,” and properly refused,
stating:
[A] defendant’s interference with law-enforcement agents
“integrally involved” in a grand-jury investigation can be sufficient to
satisfy Aguilar’s standard requiring intent to obstruct a grand-jury
proceeding rather than merely an FBI investigation “independent . . .
of the grand jury’s authority.” [Citations omitted.] Smith, Manzo, and
Leavins’s instructions suggested otherwise …..
GAB 120-21, quoting United States v. Hopper, 177 F.3d 824, 830 (9th Cir. 1999).
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The government made the same argument in the district court, where it
claimed that the instructions “would exclude a jury from finding obstruction
even if the federal agents were acting as arms of the grand jury.” ER 1A: 38, 41
(emphasis added). That argument, and most of the case law on which it is based,
was addressed in detail in the opening brief, and that discussion will not be
repeated here. But there are two key points that bear emphasizing.
First, to convict under § 1503 the government must show that the
defendant: (1) had the specific intent to obstruct a judicial proceeding, and an
intent to obstruct an FBI investigation is not enough; and (2) knew that his
conduct had the “natural and probable effect” of obstructing that proceeding.
See JOB 66-67; Aguilar, 515 U.S. at 601; United States v. Triumph Capital
Group, Inc., 544 F.3d 149, 166 n.16 (2d Cir. 2008). The first element was
announced long before the Supreme Court’s opinion in Aguilar. The second was
added by Aguilar, and it is in that context that Aguilar referred, in dictum, to the
potential significance of agents acting as “arms of the grand jury.” That language
is the basis for the government’s objection to Defendants’ proposed instructions.
Aguilar’s “arm of the grand jury” dictum indicates that it may be possible
for the government to establish that a defendant knew that his conduct was likely
to obstruct a grand jury proceeding, if it is shown that the defendant made a
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false statement to an FBI agent while knowing that the agent was acting as an
arm of the grand jury. That is, the government may rely on an “arm of the grand
jury” theory to establish the second mens rea element discussed above. JOB 69.
But the “arm of the grand jury” theory cannot be used to establish the first
element discussed above, that the defendant had the specific intent to obstruct a
judicial proceeding. If a person did not intend to obstruct a grand jury
proceeding, he may not be convicted based on his having intended to obstruct an
FBI agent (e.g., for reasons of personal or professional animus), even if he knew
that agent was acting as an arm of the grand jury.
With the proper application of an “arm of the grand jury” theory in mind,
it is apparent that the government’s objection to Defendants’ proposed
instructions – that they “would exclude a jury from finding obstruction even if
the federal agents were acting as arms of the grand jury” – was misplaced. The
proposed instructions related to the first element discussed above, to which the
“arm of the grand jury” theory does not apply. Though this point is discussed in
detail in the opening brief, JOB 66-69, and is the cornerstone of Defendants’
argument, the government ignores it. One would at least expect the government
to say whether it agrees or disagrees with this point, but it says nothing.
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While dodging this key point, the only thing that the government adds to
what it said in the district court is a selective quote from United States v. Hopper,
177 F.3d 824, 830 (9th Cir. 1999). Specifically, the government writes that “a
defendant’s interference with law-enforcement agents ‘integrally involved’ in a
grand-jury investigation can be sufficient to satisfy Aguilar’s standard requiring
intent to obstruct a grand-jury proceeding rather than merely an FBI
investigation ‘independent . . . of the grand jury’s authority.’” GAB 120 (quoting
Hopper, 177 F.3d at 830). This suggests that a defendant may be convicted
under § 1503 without the government showing that he intended to obstruct a
judicial proceeding, so long as the government shows that the defendant
interfered with FBI agents who were integrally involved in a grand jury
investigation. The government points to nothing in Aguilar, or any other case,
that indicates that the core intent element under § 1503 – the intent to obstruct a
judicial proceeding – can be short-circuited in that way.
And a closer look at Hopper belies this claim. The defendants in Hopper
argued that there was insufficient evidence to convict them for attempting to
obstruct an IRS proceeding. Though the case did not involve a § 1503(a) charge,
the Court discussed Aguilar:
The indictment alleged that Aguilar had intentionally given false
information to federal investigators who were potentially going to be
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called to testify before a grand jury. The Supreme Court held that
lying to an investigating agent who “might or might not testify before a
grand jury” did not constitute obstruction of justice. …[H]ad the
investigators been subpoenaed or summoned by the grand jury, or had
there been proof that they were acting as an arm of the grand jury,
there would have been enough to support a conviction for obstructing
a judicial proceeding. Id. at 600-02. The Court held that in order to be
indictable for obstruction of a judicial proceeding, the defendant’s
actions must have a “natural and probable effect of interfering with the
due administration of justice.” Id. at 601.
Hopper, 177 F.3d at 830.
The Court in Hopper went on to conclude that the defendants in that case
“knew” that their actions would have the “natural and probable effect” of
“prevent[ing] collection of money owed to the IRS,” and thus knew their actions
would likely obstruct an IRS proceeding. See id. In sum, Hopper recognized that:
(1) Aguilar added a materiality-type element to § 1503; (2) that element comes
with a knowingly mens rea attached; and (3) an “arm of the grand jury” theory is
relevant, if at all, to that materiality element, not to the core mens rea that the
defendant must have intended to obstruct a judicial proceeding. This last point is
the cornerstone of Defendants’ argument.
The second key point made in the opening brief is that even if the
government’s “arm of the grand jury” objection to the proposed instructions had
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merit, the solution was for the court to give Defendants’ proposed instructions
and instruct on what was necessary to convict on an “arm of the grand jury”
theory. See JOB 71. The district court did neither. That was particularly
prejudicial because the FBI case agent simply announced to the jury, “I am an
arm of the grand jury,” and the prosecutor stated that as a fact during closing.
See JOB 72 (quoting ER 2: 688; ER 6: 1756). As the case law discussed in the
opening brief shows, establishing an arm of the grand jury theory is not so
simple. JOB 71. More important, through this sleight of hand the government
converted the entire FBI investigation into “the grand jury investigation,”
substantially increasing the risk that the jury convicted based on concluding that
Defendants intended to obstruct the FBI, rather than “a grand jury proceeding.”
The government does not respond to this issue, other than to wrongly
claim that Defendants did not preserve it for appeal. GAB 120, n.28. In
responding to the government’s objection to their proposed instructions,
Defendants said that “[e]ven if it were true that interference with an agent who
was acting as an arm of the grand jury could be the basis for a conviction,” that
would not obviate the need for the requested instructions, but would instead
require “additional instruction(s) telling that to the jury and defining what the
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government must prove for an agent to be deemed an arm of the grand jury.” ER
1A: 39.
Though the government does not address the court’s failure to instruct on
an arm of the grand jury theory, its answering brief shows that whatever that
theory’s application, the evidence does not support it in this case. Specifically, in
the answering brief the government claims that the “[t]he FBI served as an arm
of the grand jury,” and cites two pages of the record as support. GAB 9. One cite
refers to Agent Dahle’s conclusory statement, “I’m an arm of the Federal Grand
Jury.” ER 2: 688. The other is to the following testimony from Agent Dahle:
Federal grand jury subpoenas were issued on behalf of the grand jury.
Things that were produced pursuant to those subpoenas were
produced to the grand jury. Testimony – the grand jury heard
testimony from witnesses before it. And agents would interview
witnesses and then sometimes present that testimony to the grand jury.
ER 2: 651.
This case does not involve any claims of obstruction with respect to grand
jury subpoenas, nor claims that Defendants tried to influence the testimony of
grand jury witnesses. Thus, the only portion of the quoted testimony that could
support an “arm of the grand jury” theory is that “agents would interview
witnesses and then sometimes present that testimony to the grand jury.”
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Considered in light of the other evidence presented, this means that the
government’s “arm of the grand jury” theory boils down to claiming: (1)
Defendants did things with respect to people that they knew, or suspected, FBI
agents wanted to interview; (2) the things Defendants did might have affected the
FBI agents’ interactions with those people; and (3) that in turn could have
affected the testimony that FBI agents might (i.e., “sometimes”) give to the grand
jury.11 That is far more attenuated than what happened in Aguilar, where the
defendant intended to obstruct the grand jury, and lied to agents about a subject
that he knew a grand jury was considering. The Court in Aguilar nonetheless
held, “We do not believe that uttering false statements to an investigating agent –
and that seems to be all that was proved here – who might or might not testify
before a grand jury is sufficient to make out a violation of the catchall provision
of § 1503.” 515 U.S. at 600. Considering that the “[t]he government did not show
. . . that the agents acted as an arm of the grand jury” in Aguilar, id., it is hard to
know how the government thinks any sort of arm of the grand jury theory was
11 This discussion highlights the novelty of the government’s theory is in this case, because it does not involve submitting false documents to the grand jury, lying to the grand jury, or trying to convince someone to do either of those things.
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established in this case.12 And without a valid argument in that regard, the
government’s objection to the requested instructions falls flat.
E. The Court Erred in Instructing the Jury that It Could Convict If It
Found that Defendants Intended to Obstruct “the Grand Jury
Investigation,” Rather that “a Grand Jury Proceeding.”
The district court committed a second instructional error when it told the
jurors that they could convict if they found that Defendants “acted corruptly . . .
with the intent to obstruct the federal grand jury investigation.” ER 1A: 261
(emphasis added). As discussed in the opening brief, given the evidence
presented “the only logical way for the jurors to understand the phrase ‘the
federal grand jury investigation’ was that it encompassed anything that the FBI
did as part of its investigation.” JOB 74.
The government ignores this argument and instead focuses on
Defendants’ related argument that the instruction’s language is contrary to a
wealth of case law that indicates that the government must show that a
defendant intended to obstruct a “specific” judicial proceeding. See JOB 73-74.
With respect to the latter argument, the government complains that “defendants
12 Notably, the government did not establish that any Defendant expected Agent Marx, or any other FBI agent, to testify in a grand jury proceeding.
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cite no case supporting the proposition that a defendant must know precisely
which grand jury he obstructs,” and argues that, “[i]n any event, the evidence
overwhelmingly demonstrated defendants’ endeavor to obstruct any and all
grand-jury proceedings into abuse at LASD-operated jails.” GAB 123-24. As for
the first claim, Defendants cited several cases that indicate that a defendant must
intend to obstruct a “specific” grand jury proceeding, and that is not consistent
with the government’s theory that the Defendants could be convicted based on
an alleged intent to obstruct a “grand jury investigation” that encompassed an
unknown number of grand juries that were in session during unknown time
periods. See JOB 73. As for the government’s “any and all” approach, that does
not square with “[c]ourts hav[ing] construed the ‘proceeding’ element fairly
strictly,” and with the requirement that the government show the defendant
intended to obstruct a pending judicial proceeding. Fulbright, 105 F.3d at 450.
The government also argues that courts use the phrases “grand jury
investigation” and “grand jury proceeding” “interchangeably,” thus “[t]he
distinction between the two is immaterial.” GAB 122. Although the two phrases
can be used interchangeably in some contexts without creating problems that is
not the case where, as here, the government leads the jury to believe that “an FBI
investigation” is also interchangeable with “a grand jury investigation.” JOB 74-
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76. Furthermore, the government mashes all of these concepts together under
the umbrella “the federal investigation,” a phrase it uses dozens of times in the
answering brief, and used countless times during trial. By using this phrase, the
government makes no distinction between a grand jury proceeding, a grand jury
investigation, and an FBI investigation. That is no accident – the government
wanted the jury to equate an intent to obstruct an FBI investigation with an
intent to obstruct a grand jury proceeding.
F. The Court Erred in Failing to Instruct the Jury that Defendants Had
to Know Their Conduct Was Likely to Influence a Grand Jury
Proceeding.
The district court also erred by failing to instruct the jury that Defendants
had to know their conduct had the “natural and probable” effect of influencing a
grand jury proceeding.
The government first claims that this issue was waived. This issue is
reviewed for plain error, and may also be considered in the context of assessing
the cumulative prejudice from multiple errors. See United States v. Perez, 116
F.3d 840 (9th Cir. 1997) (en banc); JOB 77.
As for the merits, the government says that Defendants “cite no case
requiring the instruction they propose.” GAB 124. But Aguilar makes clear that a
defendant may not be convicted if he “lacks knowledge that his actions are likely
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to affect the judicial proceeding,” and if he did not “kn[o]w that his false
statement would be provided to the grand jury.” 515 U.S. at 599, 601 (emphasis
added). And as emphasized in the opening brief, the Second Circuit addressed
this issue clearly and persuasively in Triumph Capital, 544 F.3d at 166-68.
Next the government says that because the jury was instructed that it had
to find that the Defendants “intend[ed] to obstruct the federal grand-jury
investigation . . . any additional reference to the Defendants’ knowledge of the
likely effect of their actions would have been redundant.” GAB 124-25. To
support this argument, the government cites what the Second Circuit has
described as “puzzling” language in Aguilar that seems to equate (1) § 1503’s
core intent to obstruct a grand jury proceeding element with (2) the materiality
plus knowledge element that was the change wrought by Aguilar. See Triumph
Capital Group, Inc., 544 F.3d at 166 n.16. Despite that language, it is clear from
the following excerpt in Aguilar that a showing of mens rea beyond an intent to
obstruct a judicial proceeding is required:
Justice Scalia also apparently believes that any act, done with the
intent to “obstruct . . . the due administration of justice,” is sufficient to
impose criminal liability. Under the dissent’s theory, a man could be
found guilty under § 1503 if he knew of a pending investigation and
lied to his wife about his whereabouts at the time of the crime,
thinking that an FBI agent might decide to interview her and that she
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might in turn be influenced in her statement to the agent by her
husband’s false account of his whereabouts. The intent to obstruct
justice is indeed present, but the man’s culpability is a good deal less
clear from the statute than we usually require in order to impose
criminal liability.
515 U.S. at 602.
The reason the man is not liable is not because he lacked the core intent to
obstruct a grand jury proceeding, it is because he did not know that his actions
would likely obstruct a grand jury proceeding.
Finally, the government argues that Defendants do not claim that the
failure to instruct on this mens rea element “affected the outcome of their trial . .
. .” GAB 124. To the contrary, the opening brief states that “[w]hen considered in
combination with the other instructional errors discussed above, the upshot is
that the jurors were never told that to convict they had to find that Defendants
(1) specifically intended to obstruct a grand jury proceeding, and (2) knew that
their conduct was likely to affect a grand jury proceeding.” JOB 76-77. Without
those, and the other, requested instructions, there was no brake on the jury
convicting based on finding that Defendants intended to obstruct an FBI
investigation. See JOB 77.
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III. The Court Erred in Precluding the Testimony of Paul Yoshinaga, a Key
Defense Witness.
The district court wrongly excluded the testimony of Paul Yoshinaga,
LASD’s Chief Legal Advisor, which was critical to the good faith and lack of
mens rea defense advanced by Leavins and the other Defendants, on the ground
that: (1) it was not relevant because Leavins was not entitled an advice of counsel
defense instruction; and, alternatively, (2) it was excludable under Fed. R. Evid.
403 because it was substantially more prejudicial than probative. JOB 86-91.
The government’s attempt to defend the court’s ruling on the first ground
fails because it is contrary to case law and logic, and the government’s attempt to
defense on the second ground fails because the court never engaged in a
probative vs. prejudice analysis and any possible prejudice could have been
prevented with a limiting instruction.
A. Yoshinaga’s Testimony was Relevant.
In the opening brief, Defendants cited several cases that indicate that even
if a defendant is not entitled to an advice-of-counsel instruction, evidence of his
interactions with counsel may be relevant to whether he acted in good faith,
without criminal intent. See JOB 87-90. The government responds that none of
the cases “cited by defendants stands for the proposition that evidence which
fails to satisfy the requisites for an advice-of-counsel instruction is always relevant
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and admissible to establish lack of criminal intent.” GAB 231 (emphasis added).
Defendants did not make a categorical, always argument. It was the district court
that reasoned in that manner, concluding that because Leavins was not entitled
to an advice-of-counsel instruction, Yoshinaga’s testimony must be irrelevant.
The cases cited by Defendants show that conclusion was erroneous.13
The government’s attempt to distinguish the cases on the ground that
none dealt with § 1503(a) and its requirement that an act be “done with the
purpose of obstructing justice” is meritless. GAB 228, 231, n.61. It is undisputed
that good faith provides a defense to the mens rea element of § 1503(a), and the
cases cited by Defendants hold that “reliance on legal counsel may be considered
in determining the question of good faith.” JOB 89 (quoting United States v.
Custer Channel Wing Corp., 376 F.2d 675, 683 (4th Cir. 1967)).
Moreover, those cases rely on this Court’s holding in Bisno v. United
States, 299 F.2d 711 (9th Cir. 1962), which this Court reiterated in United States
13 Because the court ruled that Yoshinaga’s testimony was irrelevant on the ground that Leavins was not entitled to an advice-of-counsel instruction, it presents a legal question and is reviewed de novo, and not for an abuse of discretion as the government contends. GAB 225; United States v. Thompson, 37 F.3d 450, 452 (9th Cir. 1994) (evidentiary issue reviewed de novo if legal issue predominates).
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v. Bush, 626 F.3d 527 (9th Cir. 2010), both of which establish that evidence of a
defendant’s interactions with counsel is relevant to a good faith defense. The
government tellingly ignores Bush, and fails in its attempt to discount Bisno’s
statement that evidence that a defendant consulted with an attorney is “evidence
of good faith,” 299 F.2d at 719, as dicta, as the question of the admissibility of
the attorney’s testimony was necessary to the Court’s holding. United States v.
Rivera-Corona, 618 F.3d 976, 987 (9th Cir. 2010).
The government’s argument that Yoshinaga’s testimony was “irrelevant”
with respect to whether Leavins acted “with the purpose of obstructing justice,”
GAB 227, ignores that the intent requirement is not self-defining and it is subject
to a good faith defense. This made the testimony relevant to the specific points
detailed in the opening brief, all of which the government ignores. JOB 87.
As an alternative argument, the government seems to claim that
Yoshinaga’s testimony was irrelevant because Leavins did not tell Yoshinaga that
he was engaged in “obstructive acts . . . such as tampering with potential
witnesses,” “keep[ing] Brown from a federal grand jury,” and “l[ying] to Special
Agents Marx and Narro with intent to obstruct a grand jury investigation.” GAB
215, 223, 232. That is, the government assumes that Leavins had the required
criminal intent, then says Yoshinaga’s testimony was irrelevant because Leavins
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did not tell Yoshinaga about his criminal intent. But the whole point of
Yoshinaga’s testimony was to show that Leavins did not have criminal intent,
and instead acted in good faith.
Stripped of its assumption of criminal intent, the government’s argument
boils down to claiming that Yoshinaga’s testimony was properly excluded
because he did not know about every act undertaken by every person with
respect to the LASD’s investigation. But evidence of “reliance on legal counsel
may be considered in determining the question of good faith.” Custer Channel
Wing Corp., 376 F.2d at 683. And Yoshinaga’s knowledge about the
investigation was substantial. He knew: (1) the origin and nature of the
investigation; (2) events that occurred during the August 29 meeting at the
USAO; (3) the legal justification for the investigation, as set out in the August 31
Carey/Baca memorandum that he helped draft; (4) Brown’s being moved to a
satellite jail and housed under an alias; and (5) Brown’s transfer to state prison
being delayed. JOB 83-86.
B. Yoshingaga’s Testimony Was Not Excludable Under Rule 403
The government implies that the district court engaged in the required
Rule 403 balancing, and that review is for an abuse of discretion because there
were “multiple conferences regarding Yoshinaga’s proposed testimony.” GAB
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232, n.63. But these mostly brief “conferences,” concerned the court’s repeated
conclusion that without an advice-of-counsel instruction, Yoshinaga’s testimony
was completely irrelevant. See ER 1B: 323. There was no Rule 403 balancing
done, and review is therefore “de novo.” United States v. Moran, 493 F.3d 1002,
1012 (9th Cir. 2007).
As for prejudice, the government claims that “Yoshinaga’s opinions were
replete with legal opinion” that “would have been unduly prejudicial and
confusing to the jury.” GAB 234. This is contrary to the government’s harmless
error argument (addressed below). GAB 237-38. The government does not
explain how Yoshinaga’s legal opinion could be effectively the same as the jury
instruction it cites, while also being “unduly prejudicial and confusing to the
jury.” But even if some aspects of Yoshinaga’s testimony were problematic, the
court could have limited the testimony or given a cautionary instruction, as it did
with similar testimony admitted against the Defendants. As this Court has
recognized, “[i]f courts prohibit the introduction of any evidence that conflicts
with the prosecution’s case because it might ‘confuse’ the jury, the right of the
accused to present a defense would exist only in form.” Alcala v. Woodford, 334
F.3d 862, 885 (9th Cir. 1993).
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C. The Error Was Not Harmless, and It Infringed Leavins’s
Constitutional Right to Present a Defense.
The government claims that the erroneous preclusion of Yoshinaga’s
testimony was harmless because (1) the “asserted relevance of Yoshinaga’s
testimony was that it supported defendants’ claim that they had authority to
investigate” the FBI, and (2) the court gave an instruction that the Defendants
had such authority, making Yoshinaga’s testimony unnecessary. GAB 237.
In making this argument, the government mis-characterizes the “asserted
relevance of Yoshinaga’s testimony.” GAB 237. His testimony was sought to
support Leavins’s defense that he acted with the good faith belief that he was
following lawful orders (JOB 77), and the instruction the government relies on
for its harmlessness argument does not address that issue. ER 1A: 256.
Moreover, the instruction the government references stated that the authority to
investigate may not be used “for the purpose of obstructing justice,” and
Yoshinaga’s testimony related to the issue of whether Leavins’ intent or purpose
was to obstruct justice.
The government also wrongly claims the error was harmless, and did not
infringe Leavins’ constitutional right to present a defense because Leavins
testified “regarding the involvement of attorneys,” and his testimony was
“corroborated by [the testimony of witnesses] Tanaka and Gennaco.” GAB 239;
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see also GAB 236. A review of the testimony cited by the government refutes this
argument.
Tanaka testified that Gennaco was an attorney for the Office of
Independent Review (an arm of the Los Angeles County Board of Supervisors),
and that he and Sheriff Baca met with Gennaco on a few occasions to discuss
LASD’s investigation of the FBI’s conduct. See ER 4: 1156-59. But when Tanaka
was asked if Gennaco advised anyone at the LASD if there was anything illegal
about the investigation, a government objection was sustained. See id. 1159.
Gennaco’s testimony was similarly limited. He testified that in August
2011 he learned “there was a cell phone related to the FBI found in the” Los
Angeles jail. GER 778. He said that he met with Baca about this matter on about
five occasions, but Leavins was not present. GER 778-81. When asked to
elaborate on his “concerns about the introduction of the cell phone into the jail,”
a government objection was sustained. GER 782.
The government does not explain how this testimony could possibly be
considered an adequate stand-in for Yoshinaga’s testimony. Indeed, the court
shut down testimony about what advice Gennaco gave to Baca and Tanaka, just
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as it did during Leavins’s testimony with respect to what Yoshinaga told him.14
ER 5: 1475-76, 1478-79, 1622-23. Furthermore, Tanaka said that he did not recall
Yoshinaga being at the August 29 meeting at the USAO (ER 4: 1180),
undermining Leavins’s testimony, and Yoshinaga’s proffered testimony, on this
point. In short, the testimony cited by the government actually supports the
harmfulness of the exclusion of Yoshinaga’s testimony.15
14 The government claims that when the court did this during Leavins’s testimony, it was based on foundational objections. GAB 245, n.17. It is true that when objecting government counsel said “foundation,” but there was no foundational basis for precluding the answers – Leavins was being asked what Yoshinaga told him, and he obviously had a foundation for answering.
15 Testimony by Yoshinaga supporting Leavins’ position that he was acting in good faith reliance on orders he believed were lawful would have benefitted the other Defendants as well (see JOB 99), and thus the government’s assertion (GAB 211, 240), that the error is less harmful as to them is meritless. Moreover, other Defendants did communicate with Yoshinaga. See, e.g., GER 1338 (email sent to Yoshinaga by Manzo at the direction of Thompson providing Yoshinaga with details of the investigation).
Further, preservation by Leavins and Thompson of the constitutional claim that the error denied Defendants the right to present a defense (GAB 225, 235), preserved the constitutional claim as the remaining Defendants. United States v. Orm Hieng, 679 F.3d at 1141.
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D. The Government Improperly Capitalized on the Erroneous
Preclusion Order
That harm was compounded by the government’s capitalizing on the
erroneous preclusion of Yoshinaga’s testimony during its cross-examination of
Leavins, and during closing argument. The government treats this as a
freestanding misconduct claim and says it is reviewed for plain error. GAB 240.
That is incorrect, because the Court may consider whether the prejudice from
precluding Yoshinaga’s testimony “was exacerbated by prosecution statements
that, purposefully or not, may have misled the jury.” United States v. Thomas, 32
F.3d 418, 421 (9th Cir. 1994).
Without Yoshinaga’s testimony the government was able to present to the
jury a false picture as to six specific points. JOB 92-98. The government does not
respond to many of these points, and as to those that it does, two points bear
marking.
First, though the government tries to justify some of the misleading things
the prosecutor said during Leavins’s cross examination and closing argument,
from a big picture perspective it cannot dispute that the prosecutor pressed the
false claim that Leavins communicated with Yoshinaga minimally at best.
Indeed, that was the thrust of the prosecutor’s argument --- that although Leavins
testified “about Paul Yoshinaga and how he went to Mr. Yoshinaga for advice all
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the time,” that was rebutted by things he “had to admit” on “cross-examination,”
thus “[h]e doesn’t have good faith.” JOB 95 (quoting ER 6: 1855-56). As the
prosecutor knew, had Yoshinaga been permitted to testify he would have said,
among other things, that “[i]n August through October 2011, he met on a regular
basis with” Leavins and “was asked to give legal advice in connection with the
FBI causing a cell phone to be smuggled into the Men’s Central Jail in the
summer of 2011 and the resulting Los Angeles Sheriff’s Department
investigation.” ER 1B: 329.
Second, Yoshinaga’s testimony would have prevented or at least
neutralized the prosecutor’s successful effort to unfairly capitalize on Leavins’
mistaken grand jury testimony as to the August 29, 2011 meeting. In his grand
jury testimony, Leavins testified that at the August 29 meeting, U.S. Attorney
Birotte said, in effect, “Butt out. We have an investigation. Don’t interfere,” ER
6: 1791. At trial Leavins said he was mistaken and that Birotte had not said that
at the August 29 meeting, but at a meeting a month later. The government
maintained in its closing that this was not a correction, and instead that Leavins
was “trying to make things up, to run from the chronology in this case, to put his
knowledge that the U.S. attorney wanted the LASD to butt out of the
investigation, put it a month later, because he knows that it’s bad for him. It
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shows his consciousness of guilt, meaning it shows he knows he is guilty. He
knows the truth is bad for him, so he’s making up a story about being at a
meeting a month later.” ER 6: 1792. The prosecutor made this argument while
knowing that Yoshinaga was precluded from giving testimony that Birotte did
not deliver any “butt out” message at the August 29 meeting.
The government claims in response that Yoshinaga’s proffer “said nothing
about comments regarding ‘butt[ing] out,’ one way or the other.” GAB 245-46.
As the government acknowledges, however, Leavins used the phrase “butt out”
to describe the substance of Birotte’s message, which was that the LASD should
pull back from its investigation while the FBI conducted its investigation. GAB
48. On this point, Yoshinaga’s proffer states, “Sheriff Baca also told André
Birotte that the Sheriff’s Department would investigate the FBI. Andre Birotte
and the United States Attorney’s Office representatives did not say that the Los
Angeles Sheriff’s Department could not investigate the FBI.” ER 1B: 332. Given
this, and the balance of Yoshinaga’s proffered testimony, it is apparent that
Yoshinaga would have testified that Birotte did not convey any sort of “butt out”
message at the August 29 meeting. See, e.g., ER 1B: 333 (“The meeting ended
with an agreement to keep the dialog going between the Sheriff’s Department
and the United States Attorney’s Office.”).
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IV. The District Court’s Many Erroneous Evidentiary Rulings, Alone and
Cumulatively, Resulted in a Denial of the Right to Present a Complete
Defense.
A. The Erroneous Evidentiary Rulings Individually Require Reversal.
1. The Court Improperly Excluded Evidence Rebutting the
Contention that Brown Could Have Been Safely Held at MCJ.
Exhibit 1060 is a 15 second excerpt of a video recorded by one of the
cameras on the 2000 floor of the Men’s Central Jail (“MCJ”) showing an inmate
being attacked by another inmate with a razor because he was known to be a
“snitch.” ER 1A: 369 (CD transmitted with paper excerpts); JOB 102. The
attacking inmate committed the brazen assault by breaking out of his cell in a
matter of seconds by picking the outdated locking mechanism, and running to
the victim inmate who was in a nearby shower. ER 1A: 358-60; 369.
The government defends the court’s ruling excluding Exhibit 1060 based
on the premise that: (1) the video was offered to demonstrate why Defendants
were ordered to move Brown out of MCJ; and, (2) the comparison for purposes
of determining the relevancy of the video is between Brown and the inmate in
the cell, i.e., the attacking inmate. GAB 151-52.
The government’s premises are false and the court’s ruling illogical, and
an abuse of discretion. The video was not offered to demonstrate why Brown was
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moved from MCJ; rather, as the record makes clear, the video was offered to
rebut testimony the government elicited from Gilbert Michel that there were
cameras on the 2000 floor which made it was sufficiently safe to hold high risk
inmates such as Brown. ER 1A: 354-55, 356-60. The video was highly probative
to rebut the notion that Brown could have been safely held on the 2000 floor of
the MCJ because of the presence of cameras. This point was critical, because the
government theorized that the fact that Brown could have been safely held at
MCJ showed that the Defendants moved him for an obstructive purpose.
The court’s ruling and the government’s argument are also illogical
because both evaluate the relevance of the video by equating Brown with the
inmate attacker, reasoning the video was not relevant because it did not show
anyone “going into the inmate-attacker’s cell or assaulting him. GAB 152,
quoting ER 1A: 358 (emphasis supplied by government). The relevant
comparison was Brown and the victim inmate snitch in the shower. ER 1A: 359.
While the inmate who broke out of his cell happened to be the inmate who had
been accused of murdering a deputy, that had no bearing on the purpose for
which the video was offered.
The government’s argument that the error was harmless is meritless
because it is based on the same demonstrably false premise that the video was
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offered to prove why Brown was ordered to be moved out of MCJ. GAB 153.
The measure of unfair prejudice is the impact of the government’s unrebutted
testimony suggesting that because of the presence of cameras, Brown could have
been safely held on the 2000 floor.
The testimony elicited by the government was powerful because the jury
no doubt reasoned that if an inmate accused of killing a deputy could be safely
held on the 2000 floor, one who was implicating deputies in bringing in
contraband surely could be. But the video powerfully rebutted that notion by
showing that inmates who were known to be snitches were targets of inmate
assaults even when held in locked cells and under camera surveillance. The
unfairly prejudicial impact of the unrebutted testimony was magnified when the
prosecutor elicited other testimony suggesting the presence of cameras insured
an inmate’s safety. ER 5: 1531-32; JOB 103.
2. The Court Improperly Admitted Evidence Concerning
Specific Instances of Inmate Abuse.
Defendants identified in their opening brief instances where the court
erroneously admitted testimony by Michel and William Courson regarding
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specific instances of inmate abuse.16 JOB 104-06. Defendants explained that
admitting this testimony was an abuse of discretion, because the government had
not, and could not, articulate how the specific instances were relevant. JOB 106.
The government responds by overstating the scope of Defendants’
challenge, to include “evidence of deputy-inmate assaults within the Men’s
Central Jail” generally, and spends several pages detailing that general
testimony. GAB 154-60. The government then argues Defendants did not
preserve their claim because they did not object to this general testimony, and
this general “inmate-abuse testimony” was relevant in any event. GAB 160-61.
The government’s argument that the claim was not preserved because
Defendants did not object to other testimony either misapprehends Defendants’
claim or is a strategic ploy to obscure the issue. Defendants’ opening brief
identified where they objected to the rulings they challenge on appeal, and they
only seek review as to the evidence admitted over those objections.17 JOB 105-06,
citing ER 3: 867; ER 3: 898; ER 3: 935-37.
16 The objections by Smith and Manzo preserved the claim as to all of the Defendants. See United States v. Hardy, 289 F.3d 608, 612, n. 1 (9th Cir. 2002).
17 Once the court overruled the objection to Michel’s testimony about “slam[ming]” an inmate “on the wall,” Defendants did not need to continue to object to the prosecutor’s follow-up questions, or the specific instances Michel
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The government employs this same tactic in arguing that the court
properly admitted the evidence, offering reasons why testimony about general
inmate abuse was relevant. GAB 160-162. The government offers only one
theory of relevance for Michel’s testimony about his involvement “specific
instances of violence,” i.e., that it was proper impeachment of the government’s
own witness. GAB 162, citing Fed. R. Evid. 607. Nothing in Rule 607, however,
allows a party to get evidence in the back door that is otherwise subject to
exclusion under Rule 403.
The government’s theory of relevancy as to Courson’s testimony regarding
instances of deputy violence committed against inmates is even more strained.
The government contends the evidence was relevant to “his credibility,” and “to
defendants’ criminal intent,” because Courson was not asked about the specific
instances when interviewed by Leavins, Craig and Long. GAB 162. Even if this
made sense, it would only justify questioning Courson about whether he was
testified about after the court overruled the defense objection to his testimony about an instance where he and several deputies “punched, kicked and tased” an inmate (ER 3: 867, 898), in order to preserve the claim, as any such objection would have been futile. United States v. Pablo Varela-Rivera, 279 F.3d 1174, 1177-78 (9th Cir. 2002).
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questioned about specific instances of violence, not the specific instances
themselves.
Nor did the court ever provide a plausible justification for admitting
testimony about specific instances of abuse. The court, upset with Defendants’
suggestion in opening that their prosecution was the product of a turf war,
illogically considered that to be an attack on the legitimacy of the federal
investigation into inmate abuse, thereby opening the door to specific instances of
abuse. ER 1B: 379. To the contrary, Defendants acknowledged the legitimacy of
the federal investigation (GER 883), and did not object to testimony by Agents
Dahle and Marx about inmate abuse.
3. The Court Improperly Limited Cross-Examination of Pearson
Regarding the Writ.
The defense sought to cross-examine Deputy Pearson to demonstrate his
testimony that he became aware of a writ for Anthony Brown sometime prior to
September 12, 2011, was unreliable and a product of conversations, speculation
and events after September 12. JOB 108-09; ER 2: 804, 807.
The government claims in response that the defense cross-examination
was not restricted because the defense was allowed to elicit that Pearson was not
sure whether he discussed the writ with Sexton, Smith or Manzo, thereby
impeaching his refreshed recollection direct testimony that he had discussed it
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with all three. There was no error, according to the government, because
“Smith’s counsel got what he wanted…” GAB 166.
The defense wanted to question Pearson about conversations and events
after September 12, until his grand jury testimony 16 months later (which was
the source of his refreshed recollection), to demonstrate the more important
point that Pearson’s testimony as to whether he had talked to anyone about a
writ for Brown prior to September 12 was unreliable and mistaken; but the court
would not allow it.18 JOB 108-09. There was no basis for this restriction on cross
and the government does not offer any.
The government’s contention that the error was harmless is based on its
assertion that Pearson’s “testimony was not the only evidence establishing Smith
and Manzo’s awareness of the grand-jury investigation and Brown’s role in it.”
GAB 167 (emphasis added). What is most telling about that assertion is that the
government does not contend there was any evidence besides Pearson’s
18 See JOB 108-09, ER 2: 807. The court ruled at side bar that the defense would not be allowed to ask Pearson about the conversation and events, and limited the defense to impeaching Pearson with his grand jury testimony. ER 2: 806-07 (“But if you want to ask him – if you want to ask him, look, ‘when you gave your testimony before the grand jury…”). The defense maintained it should be allowed to question Pearson about the conversations and events after September 12 and before his grand jury testimony. ER 2: 807.
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refreshed recollection that prior to September 12 Smith or Manzo were aware
there was a writ for Brown. No other evidence supported an inference that a writ
for Brown had been received by the LASD. JOB 109-110. Preventing the defense
from proving Pearson was mistaken on this critical point could not be harmless,
much less harmless beyond a reasonable doubt.19 JOB 110.
4. The Court Erroneously Precluded the Defense From Cross-
examining LASD Sergeant Martinez About a Legal Opinion.
The government does not and cannot explain how or why the court’s
ruling sustaining the government’s objection on speculation grounds to the
defense question of LASD Sergeant Martinez about the legal opinion the
government elicited from him was not error.20 ER 3: 1109. The court not only
erroneously sustained the objection on grounds that it called for speculation, but
19 Because Pearson’s testimony provided the only evidence from which it could be inferred the writ for Brown had in fact been received by the LASD, the restriction prejudiced all the Defendants, and was not harmless as to Defendants other than Smith and Manzo, contrary to the government’s contention. GAB 167.
20 Martinez responded “Yes” to the prosecutor’s leading question asking if it was correct that the LASD had “no jurisdiction over Federal agencies,” which included the FBI. The prosecutor contrasted this with the LASD’s jurisdiction to investigate local law enforcement agencies. ER 3: 1106.
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in sustaining the objection the court allowed the government to block the
defense from questioning the witness about a legal opinion the government had
just elicited, again illustrating the court’s pattern of erroneous and biased rulings
favoring the government.21 Unable to explain why the ruling was not error, the
government simply asserts in a single sentence that the court’s ruling was not an
abuse of discretion. GAB 172.
The government alternatively asserts that Defendants’ claims of prejudice
“are outsized,” and any restriction on cross harmless, arguing that it was
undisputed that the “LASD had no jurisdiction over the FBI, as an agency…”
GAB 172 (emphasis in original.). But as the government’s brief recognizes, the
opinion pertained to “the propriety of surveilling the FBI” (GAB 172), not
whether the LASD had subpoena power to compel production of FBI records,
which was the aspect of “jurisdiction” between the two agencies that was
undisputed. The government’s suggestion that the prejudice from this restriction
on cross was cured by the court’s instruction that local officers could investigate
federal agents (GAB 173), forgets that the court’s instructions, and the
21 The defense question asked the witness about what he was aware of or concerned with personally, not anything speculative. ER 3: 1109.
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government’s summation, told the jury that the authority to do so ended when
FBI ADIC Martinez told the Sheriff the phone belonged to the FBI.
5. The Court Improperly Refused to Permit the Defense to
Question AUSA Middleton as an Adverse Witness.
The government defends the court’s ruling denying the defense request to
examine AUSA Lawrence Middleton by leading questions as an adverse witness
under Fed. R. Evid. 611(c)(2) on grounds that the court found he was “not
hostile,” citing a Sixth Circuit case that was decided before the Federal Rules of
Evidence were adopted. GAB 178, citing United States v. Bryant, 461 F.2d 912,
918-19 (6th Cir. 1972). Rule 611(c)(2), however, entitles a party to use leading
questions to examine “a witness identified with an adverse party” regardless of
whether they appear hostile, because such a witness is deemed to be hostile “as a
matter of law.”22 See Fed. R. Evid. 611(c), Advisory Comm. Notes, 1972
22 The Advisory Committee Notes to Rule 611(c) as proposed in 1972 and as adopted in 1974 explain that the proposed rule “declared certain witnesses hostile as a matter of law and thus subject to interrogation by leading questions without any showing of hostility in fact,” specifically “adverse parties or witnesses identified with adverse parties.” Advisory Comm. Notes, 1974; see 51 F.R.D. 315, 395-97 (1971). The prefatory clause “Ordinarily,” in subdivision (c) is only intended “to furnish a basis for denying the use of leading questions when the cross-examination is cross-examination in form only and not in fact, as for example the ‘cross-examination’ of a party by his own counsel after being called
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(Proposed Rules) & 1974. The court’s ruling was clearly wrong and thus
constituted an abuse of discretion.23
6. The Court Erroneously Excluded Evidence of Baca’s Attitude
and the Specific Orders He Gave in Late September.
Although the court allowed some of Sheriff Baca’s comments about the
federal investigation and the provision of a cell phone to an inmate at the LA
County jails, the critical evidence was excluded: Baca’s continuing and vocal
position on September 26, 2011, that what FBI agents had done in inserting a
cell phone into the jails in the hands of a convicted criminal was illegal and
dangerous. The court also excluded Baca’s change in position after the
September 27, 2011, meeting with U.S. Attorney Birotte. JOB 117-120 (detailing
by the opponent (savoring more of re-direct) or of an insured defendant who proves to be friendly to the plaintiff,” and not to limit the right to use leading questions when examining a witness who was deemed “hostile as a matter of law.” Advisory Comm. Notes, 1972.
The Rule as adopted in 1974 did not alter the provision for witnesses deemed hostile as a matter of law, but added a “hostile witness” (i.e., a witness who was “hostile in fact”), to the list of those who could be examined by leading questions, which of course requires a showing the witness is in fact hostile.
23 The government wrongly contends that the claim is subject to plain error review as to defendants whose counsel did not also seek to examine AUSA Middleton as an adverse witness. GAB 174; see Hardy, 289 F.3d at 612, n. 1.
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excluded evidence).The government’s argument that the exclusion of this
evidence was correct because there is no evidence the defendants saw Baca on
Good Day LA (GAB 181), fails because there was sufficient circumstantial
evidence from which the jury could have inferred Defendants had knowledge
and awareness of the Sheriff’s position and statements.
First, evidence was introduced of the military-style chain of command. ER
1B:421, 2: 637, 701-02, 4: 1126, 1289. This supports the inference that everyone
who worked under the command of Sheriff Baca would be aware of his
statements and intentions. This inference was further supported by the proffers
that Tanaka watched the television appearance and relied on it for his actions,
which included ordering ICIB to approach Agent Marx. ER 1B: 417.
Second, there was evidence that Baca and Tanaka directed the
Department and that the ICIB reported directly to them. ER 1B: 421. Indeed, an
FBI 302 memorializing an interview with Carey contained the evidence that
Baca personally ordered the approach of Agent Marx. ER 7: 2153. The evidence
of that statement, combined with the fact that Long and Craig did approach
Agent Marx and, while referencing arrest, did not put handcuffs on her, is
additional circumstantial evidence that Leavins, Craig and Long were aware of
Baca’s orders and his position and statements.
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The government also posits that the video was excludable because “there
were Rule 403 concerns with [it] given Baca’s incorrect assertion that FBI agents
committed crimes.” GAB 181. This assertion by Baca, whether correct or
incorrect, was highly relevant to the state of mind of his subordinates, including
the defendants. Whether Baca was putting on a show for political purposes or
actually believed that what Agent Marx and unknown others had done was a
violation of California law, the combination of his statements to that effect and
his orders to the defendants goes to the issue of the defendants’ good faith, which
is relevant to the mens rea element of all the charged crimes.
Finally, the error in the anticipated exclusion of Exhibits 1502 and 2005
was not waived. GAB 103. When counsel proposed to use a copy of the letter as a
demonstrative exhibit during opening statements, it was precluded by the court.
RT 5/27/2014: 437, 440. Parties are not required to engage in futile acts to
preserve issues for appeal. See JOB 118 n.29.
7. The Court Made Other Erroneous Evidentiary Rulings.
The government’s contention that Defendants should be deemed to have
“abandoned” the other erroneous evidentiary rulings raised in their opening
brief on the ground that they did not support them with “cogent argument or
citation to authority” is meritless. GAB 184.
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As to each of the separate categories of errors, Defendants stated the
nature of the error and the governing rule of evidence, and provided specific
record citations for each erroneous ruling, with a parenthetical explaining why
the ruling was incorrect. Extended argument or analysis was not required or
warranted and would have unnecessarily extended the length of the Joint
Opening Brief. Defendants’ presentation stand in stark contrast to the examples
cited by the government where this Court has declined to review claims on
grounds that they were not presented adequately to permit review. GAB 184-
85.24
B. The Cumulative Effect of the Errors Require Reversal.
The government does not dispute that cumulative error is a separate
ground for reversal even where the individual errors standing alone would not
24 Id., citing, United States v. Williamson, 439 F.3d 1125, 1137-38 (9th Cir. 2006)(declining to address claim that oral recitation of findings and sentencing differed from written findings, where no argument or authority presented); United States v. Velasquez-Bosque, 601 F.3d 955, 963, n.4 (9th Cir. 2010) (declining to reach defendant’s “statement, in passing, that section 215 criminalizes more conduct than generic robbery because the state offense can be accomplished through non-intentional force,” because the “argument was not coherently developed in the briefs on appeal.”).
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require reversal, nor does the government dispute that the erroneous evidentiary
rulings can result in a violation of the constitutional right to present a defense.25
Instead, in addition to maintaining there were no erroneous rulings and
thus no cumulative error, the government contends there was no constitutional
error because the court allowed Defendants to present other evidence that
supported their defense, and because the limits the court imposed were not
unreasonable and the rulings were not one-sided, as the court sustained
objections made by both side. GAB 187 & n. 44 (examples of court sustaining
objections made by both sides). While the numbers alone are not determinative,
the fact is that the court wrongly sustained prosecution objections repeatedly and
25 Contrary to the government’s contention, Defendants constitutional claim of having been denied the right to present a defense is not subject to plain error. GAB 186. The constitutional nature of the claim does not pertain to the substance of the evidentiary error, but the impact or consequence of the error, or accumulated errors, and the resulting prejudice standard, i.e., whether the error is subject to the rule of Chapman v. California, 386 U.S. 18, 24 (1967), requiring reversal for constitutional errors unless they are harmless beyond a reasonable doubt. As this Court’s cases illustrate, objection to the evidentiary ruling also preserves the claim that the error resulted in a violation of the constitutional right to present a defense. See, e.g., United States v. Boulware, 384 F.3d 794, 808 (9th Cir. 2004); United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010); United States v. Lopez–Alvarez, 970 F.2d 583, 588 (9th Cir.1992).
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consistently throughout the trial, whereas the government does not cite a single
instance where a defense objection was erroneously sustained.
V. The Court’s Dismissal of Juror Five Violated Defendants’ Sixth
Amendment Jury Trial Right.
Two things, taken together, make Juror Five’s dismissal unlike what
occurred in any of the cases cited by the government, or any case of which
Defendants are aware. First, juror dismissal usually results from a claim of
misconduct made by another juror or jurors. Here, no one complained about
Juror Five, she raised her concerns with the court. Second, after discussing her
concerns with the court, Juror Five stated, repeatedly, that she could continue
with deliberations, and there was no good reason to doubt her – after all, it was
she who raised her concerns with the court. On the other hand, there was ample
reason to believe that her initial request to be excused stemmed from a dispute
amongst jurors about the merits of the case.
The government says that it was nonetheless appropriate for the court to
dismiss her because “[t]he most logical conclusion to draw from the entire course
of questioning – the one drawn by the district judge – was that the juror’s
responses, hesitation, and distress demonstrated that her request [to be excused]
was not based on any view of the evidence but rather on her emotional state,
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which prevented her from being able to deliberate.” GAB 267. The district court
did not say that it dismissed Juror Five due to her “emotional state.” But even if
it had, that would not have been permissible because there was at least a
“reasonable possibility” that Juror Five was “emotional” because of a dispute
amongst the jurors about the merits of the case. Furthermore, the government’s
argument is based on mis-characterizing “the course of questioning” of the Juror.
A. Standard of Review and Applicable Legal Test
The government says that Defendants’ claim is based on Fed. R. Crim.
P. 23 – rather than the Sixth Amendment – and thus is reviewed for an abuse of
discretion. GAB 258, 261 n.74.
The government’s argument with respect to the applicable legal test is
difficult to follow, but boils down to the following: (1) United States v.
Symington, 195 F.3d 1080 (9th Cir. 1999) indicates that a court must be wary
when it questions jurors to determine if dismissal is appropriate, so as not to
intrude on the jury’s deliberations, see GAB 261 n.74; and (2) only if the court
reaches the limit of appropriate questioning does the second part of the
“Symington rule” come into play, which is when the court asks whether there is a
“reasonable possibility” that the request for dismissal stems from a disagreement
amongst the jurors about the merits of the case. The government claims that
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“[b]ecause inquiry into Juror No. 5’s request [to be excused] did not require
intrusion into the jury’s deliberative process, this is not one of the ‘rare’ or
‘infrequent’ cases triggering Symington’s rule,” thus the “reasonable possibility”
test does not come into play. GAB 264.
This arguments misunderstands Symington which did not hold that the
“reasonable possibility” test is only triggered if the court intrudes on the jury’s
deliberations. Indeed, that would not make sense, because the point of the
Symington discussion was that courts should “refrain from exposing the content
of jury deliberations.” 195 F.3d at 1086. The government’s mis-reading of
Symington is also evident from United States v. Christensen, 801 F.3d 970 (9th
Cir. 2015), in which the Court noted that the district court appropriately limited
its questioning of jurors, and then went on to apply the “reasonable possibility”
test.26 Id., 801 F.3d at 1015-16
The key point is that Defendants have raised a claim of constitutional (not
Rule 23) error, thus (1) review is de novo and (2) the “reasonable possibility” test
applies to their claim. Williams v. Cavazos, 646 F.3d 626, 646 n.16 (9th Cir.
26 The court arguably should have questioned Juror Five more thoroughly, as requested by defense counsel. See ER 1B: 434-35, 442-43. But the more serious error here is the infringement on Defendants’ constitutional rights.
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2011), rev’d on other grounds, 133 S. Ct. 1088 (2013) (“Symington plainly
adjudicated a Sixth Amendment challenge” and therefore “if the record evidence
discloses any reasonable possibility that the impetus for a juror’s dismissal stems
from the juror’s views on the merits of the case, the court must not dismiss the
juror.”).27
B. There Is a Reasonable Possibility the Juror’s Initial Request to Be
Excused Stemmed From a Conflict Amongst the Jurors
The government contends “[t]he most logical conclusion to draw” as to the
juror’s initial request to be excused “was that the juror’s responses, hesitation,
and distress demonstrated that her request was not based on any view of the
evidence but rather on her emotional state, which prevented her from being able
to deliberate.” GAB 267. The district court, however, did not base its dismissal
on Juror Five’s “emotional state.” ER 1B: 464.
27 Contrary to the government’s assertion, the claim was preserved not just as to Leavins, but also as to Manzo (whose counsel stated “I don’t want to be excusing her . . .” and added “we’d join in the objection.” ER 1B; 442), and Smith (whose counsel, while stating that he was inclined to have the juror excused, never agreed to the juror being removed, and instead urged the court to make further inquiry, ER 1B: 442-43). Long requested a mistrial, which should be deemed to preserve the claim. ER 1B: 432. Should the court reverse on this claim, Craig’s convictions should be reversed for plain error: the error violated Symington, and affected their substantial rights.
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Rather than carefully question Juror Five about “preconceived concerns of
retaliation,” the court simply decided that “we just ought to cut our losses” and
dismissed her. ER 1B: 442. Even in the absence of additional information, the
record establishes at least a “reasonable possibility” that Juror Five’s request
stemmed from a conflict amongst jurors about the merits of the case. The district
court clearly thought so at the time. ER 1B: 429-30 (“voices might get raised”).
The court’s view was sensible, because, as in Symington, the jurors had
been deliberating for five days and a dispute at that point “is consistent with a
juror attempting to engage in deliberations on the merits but unable to convince
his or her cohort.” Christensen, 801 F.3d at 1016. Additionally, Juror Five did
not disagree that her anxiety and duress grew out of the jurors’ differing
opinions during deliberations.
The juror’s answers to the court’s limited questions support this analysis.
The court twice asked Juror Five if she felt that she could deliberate and “reach a
decision” or “reach[] a fair and just verdict,” and both times she said no; but (2)
when the court removed the “reach a verdict” or “decision” qualifier from its
questions, Juror Five said that she could continue. ER 1B: 430-31, 437, 439-41.
The obvious – indeed only – implication is that Juror Five felt that she could
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continue deliberating, but also believed that the jurors would not be able to
reach a verdict because of their differing opinions.
The government disputes this reading of the record, claiming that
“[d]uring the first two rounds of questioning, the district court . . . asked Juror
No. 5 questions that did not specifically include language about reaching a
verdict, and [even without that qualifying language] the juror responded that she
could not participate in the deliberative process.” GAB 266. But the juror only
so responded in connection with reaching a verdict, not with engaging in the
deliberative process. ER 1B: 430, ER 1B: 430-31(whether Juror Five believed she
could deliberate with her “fellow jurors and reach a fair and just verdict” and “a
decision,” and it was only at that point that she said, “I cannot.”).28
In short, the only negative responses from Juror Five involved reaching a
verdict, not the ability to deliberate. This analysis was proposed to the court. “It
28 See also GAB 267, quoting ER 1B: 431) (quoting only the last part of what the court said to Juror Five and leaving out “both sides are entitled to have fair and impartial juror, jurors and that each juror can express their views and reach a decision in this case . . . .” ER 1B: 430-31 (emphasis added). And ER 1B: 437 (emphasis added); GAB 267 (“COURT: So do you feel that you can go back into the jury room and have a full and free exchange of opinions and ideas and exchange views with your fellow jurors in reaching a fair and just verdict in this case? JUROR FIVE: I don’t feel that I can.”).
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could be that [Juror Five] disagrees with the other jurors and she honestly holds
the belief that she’s not going to be able to reach a verdict because she disagrees
with other jurors.” ER 1B: 438. Neither the government nor the court disputed
that interpretation of Juror Five’s answer. Instead, the court tacitly
acknowledged the reasonableness of defense counsel’s interpretation when it said
that it would question the juror again and remove the “reach a verdict” qualifier
from its questions. ER 1B: 439. When the court did that, defense counsel’s
concern was vindicated because Juror Five repeatedly told the court that she
could continue deliberating. ER 1B: 439-41.
The government next argues that “the court was not required to take Juror
No. 5 at her word.” GAB 265, n.75. This misses the point that the court’s
questioning of Juror Five supports the conclusion that there is a “reasonable
possibility” that her initial request to be excused stemmed from a dispute
amongst jurors about the merits of the case. Put differently, “the available
evidence [is not] ‘sufficient to leave one firmly convinced that the impetus for the
juror’s dismissal [was] unrelated to [the jurors’] position[s] on the merits.’”
Christensen, 801 F.3d at 1012, quoting Symington, 195 F.3d at 1087, n.5.
The government falls back on claiming that “the district judge – in the
best position to evaluate the juror’s situation – concluded that Juror No. Five’s
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emotional state did not permit her to carry out her duties.” GAB 259. But the
court did not say that Juror Five’s “emotional state” made her unable “to carry
out her duties.” Although two months later the court agreed with government
counsel’s claim that the reporter’s transcript did not reflect “the emotional strain
or distress that [Juror Five] was obviously feeling,” ER 1B: 460, 464, the court
never said that it believed Juror Five’s “emotional state did not permit her to
carry out her duties.” Moreover, seeming “emotional” is entirely consistent with
her having a conflict with another juror or jurors about the merits of the case.
Indeed, one of the first things that the court told Juror Five was that it was “fine”
if she needed to “vent[]” about conflicts that arose during the deliberations. ER
1B: 430-31. That is not a permissible basis for dismissing a juror, even if she
requests dismissal. United States v. Thomas, 116 F.3d 606, 622 (2d Cir. 1997).
Finally, the two cases that the government cites to support its claim that
Juror Five was appropriately dismissed due to her “emotional problems” are
readily distinguishable. GAB 259. In United States v. Beard, 161 F.3d 1190, 1192
(9th Cir. 1998), a personal dispute between two jurors devolved into name
calling, with one claiming to have felt “raped.” This Court agreed with the
district court’s conclusion that dismissing both jurors was appropriate because “it
was difficult to unravel what the dynamics were between the two,” and the
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situation had become “a major distraction to the deliberations of the jury.” Id. at
1193. In United States v. Cannon, 475 F.3d 1013, 1018-19, 1023 (8th Cir. 2007),
the Eighth Circuit approved of dismissing a juror before trial because she
provided a note from her doctor indicating that she had significant “emotional
problems” and anxiety. Both situations are a far cry from this case, where, in
talking to Juror Five, the district court itself essentially characterized her
emotional “problem” as related to conflicts inherent in deliberations.
VI. The Defendants Did Not Have Fair Notice that their Actions Violated
Federal Criminal Law.
The government argues that: (1) Defendants claim they should not have
been tried is wrong because the remedy for a violation of the right to fair notice
is only available after trial (GAB 285); (2) Defendants’ fair notice claim is
meritless because their conduct came squarely within the scope of § 1503, as
demonstrated by the verdict , and thus they cannot contend application of 1503
was vague as applied , (GAB 286-292); and (3) qualified immunity has no bearing
on their liability (GAB 292).
The government is wrong as to the first point, as Defendants’ claim that
they should not have been tried is not based on their fair notice claim. Rather,
Defendants maintain that under the circumstances of this case – where state
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officers are criminally prosecuted by federal authorities for investigating federal
agents for conduct that violated state criminal laws, but which the federal agents
claim they can authorize -- the Court should extend the law of qualified
immunity to provide state officers with protection from having to stand trial
equivalent to that provided federal officers under 28 U.S.C. § 1442(a). See CR
107 (motion to dismiss). The Court has the authority to do so, as qualified
immunity is subject to judicial development. See Scheuer v. Rhodes, 416 U.S.
232, 240 (1974). This argument explains the relevance of Defendants’ reference
to qualified immunity and why their citation to cases under 28 U.S.C. § 1442(a)
are not “profoundly off-point.” GAB 288; see Seth P. Waxman & Trevor W.
Morrison, What Kind of Immunity? Federal Officers, State Criminal Law and
the Supremacy Clause, 11 Yale L.J. 2195, (2003) (noting that Supremacy Clause
immunity is coextensive with qualified immunity under § 1983).
The government’s argument against Defendants’ fair notice claim proves
too much, because if a jury verdict for conviction precluded a fair notice claim
there could never be a fair notice claim. The government’s reliance of the jury’s
rejection of Defendants’ mens rea defense to support its view is undermined by
the errors detailed above.
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Finally, what is most telling about the government’s assertion that there is
nothing novel about the application of § 1503 to the facts of this case that would
support a fair notice claim is the government’s failure to cite a single case
remotely similar to this one. There are none. Defendants included deputy rank
officers without any decision-making authority who were following facially lawful
orders. Moreover, those orders were issued in response to a discovery that
federal agents had introduced a cell phone, and according to the FBI’s own
informant, narcotics, into the MCJ. While prosecution of the Sheriff for issuing
those orders with a corrupt purpose would not be surprising, to instead prosecute
those far below him who were not in a position to second guess the facially lawful
orders is unprecedented.
VII. The Convictions Rest On a Legally Mistaken Definition of “Corruptly.”
Defendants acknowledge that only an en banc court can overrule this
Court’s current definition of “corruptly,” and raised the claim to preserve it for
further review. GAB 100, JOB 152.
Contrary to the government’s contention (GAB 99), Defendants challenge
to the definition of corruptly was adequately preserved by Leavins’ request that
“corruptly” be defined as an act done “with the intent to secure an unlawful
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benefit either for oneself or for another” (ER 1A: 28), which closely resembles the
definition proposed by Judge Fletcher, “by bribery.” JOB 150.
VIII. The Case Should Be Reassigned to a Different Judge on Remand.
The district judge amply demonstrated fixed opinions on critical issues.
JOB 156-57; ER 1A: 112-14, 186, 220; ER 1B: 422, 526-28; ER 3: 922, 1080-81,
1108-10, 1377; ER 6: 1730. Reassignment on remand is an appropriate exercise
of this Court’s discretion.
CONCLUSION
For the foregoing reasons, the convictions should be reversed because the
Defendants did not have fair notice that their conduct could subject them to
criminal liability. If this Court does not reverse outright, the matter must be
reversed and remanded for a new trial given the multiple and egregious errors in
the jury instructions, exclusion of evidence and dismissal of a juror, all of which
deprived the Defendants of their right to a fair trial.
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Addendum
Government Statement of Facts The Record
“No deputy had ever been criminally charged [with assaulting an inmate or smuggling contraband for bribes].” GAB 9, citing GER 689, 1569, 1943; TT 689, 1569, 1943; ER 652; GER 255, 331.
The record citation is to testimony by cooperating witness and former deputy Gilbert Michel who answered “No” to the following question: “During the time you worked at Men’s Central Jail, were you aware that anyone was charged criminally for force or brutality?” GER 255, RT 1569.
“On August 8, 2011, LASD personnel found the cell phone during a routine search of Brown’s bunk. (GER 1447, 1791.) TT 1791; ER 1043.)” GAB 12 (emphasis added).
The phone was not found during a routine search, and the record citations do not support that statement. The phone was found in Brown’s property as he was being transported to a nearby hospital. ER 7: 1890; JOB 10. This raised special concerns, as Brown’s frequent trips to the hospital provided an escape opportunity and anything could be orchestrated with a cell phone ER 4: 1303.
“Eight days later [after the phone was discovered] Brown expressed an interest in speaking with deputies; as a result, Bayes and two deputies interviewed Brown on August 16, 2011. (TT 564 (ER 640).)” GAB 13 (emphasis added).
Immediately upon returning to MCJ from the hospital, which was 4 days after the phone had been discovered, Brown told deputies that he wanted to obtain benefits in exchange for information he claimed to have about smuggling of cell phones and narcotics by staff nurses and was interviewed that same day. ER 7: 1896, 1903. Brown later changed his story and implicated deputies in the smuggling. ER 7: 1900.
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Government Statement of Facts The Record
“On August 18, 2011, defendants – specifically Thompson, Smith and Manzo – linked Brown’s phone to the FBI. Following that discovery, the criminal conspiracy began.” GAB 14.
The connection between the cell phone and the FBI was discovered by Deputy Kirk, not Thompson, Smith or Manzo. ER 7: 1924. Kirk called an FBI analyst on August 18 to have her run the number Brown had called from the jail when he spoke to the unidentified female who told Brown he would his “phone soon” and referenced him getting his “shit before” he left. ER 7: 1919, 1921; JOB 12. There was no evidence anyone knew or believed at that time that the FBI had authorized the introduction of the contraband.
“Between Thompson’s first and second emails [on August 18], Thompson, Smith and Manzo linked Brown’s phone to the FBI. Specifically, Smith confirmed – by investigating a number Brown had called on the inmate telephone system – that Brown had been talking to an FBI ‘Civil Rights Investigator.’ Exhibit 4 (ER 1924).)” GAB 15 (emphasis added).
Smith did not “confirm” Brown had been speaking to an FBI Civil Rights Investigator; neither Smith nor anyone else had any idea Brown had been speaking to the FBI until Kirk was told that on August 18. In fact, the day before, August 17, after Smith had Kirk listen to Brown’s conversation with the female, Kirk said to Smith that he suspected she was a “corrupt [LASD] employee.” ER 5: 1406-09; JOB 12.
“What had been treated as a mundane misdemeanor suddenly became urgent [after discovering the link to the FBI on August 18].” GAB 15.
The Investigation became urgent on August 15, immediately after Brown first reported a deputy had smuggled in the phone and drugs; multiple investigative tasks were undertaken after the 15th and before the 18th. ER 2: 644; ER 7: 1902, 1904, 1909-12, 1917-18.
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Government Statement of Facts The Record
“Also that night [August 18], the FBI Assistant Director in Charge, Steve Martinez, e-mailed Sheriff LeRoy Baca, indicating he had a ‘sensitive matter’ to discuss.”[fn.3] (Exhibit 3 (GER 1012).)” GAB 16. Footnote 3 – “This email followed Special Agent Marx’s discovery that the phone had been found, and her reporting of that fact to her chain of command. (TT 1914 (GER 323).)” GAB 16 (emphasis added).
Marx learned the phone had been discovered by the LASD the same day it happened, August 8, ER 3: 1043; it is unclear when ADIC Martinez was informed, but Martinez did not notify Baca until 10 days after the phone was discovered, and did so only after the FBI learned the LASD had traced Brown’s calls to the FBI. The FBI made a deliberate decision not to notify the LASD when the phone was discovered because “[a]t that time we had no reason to believe that the Sheriff’s Department knew the phone was linked to the FBI.” RT 1643.
“Brown insisted that he wanted to talk only to Bayes. (Id.). Smith and Manzo pushed forward.” GAB 17.
Brown said “I’m only talking to him [Bayes],” but when Smith asked Brown “So you’re not gonna talk to me about anything? Is that basically what you’re telling me?” Brown began talking without any encouragement from Smith or Manzo. ER 7: 1925.
“Smith and Manzo did not ask him about that deputy; Smith was dismissive, telling Brown, ‘I don’t investigate cops.’ (ER 1927-29; see TT 1618-19 (ER 956-57)” GAB 17.
During the course of the interview, Manzo said “let’s concentrate on the deputy for now . . .” ER 7: 1935. Smith made the statement “I don’t investigate cops” in response to a question by Brown as to whether Smith was going to go out and arrest the deputy who smuggled in the contraband, telling Smith it would be “stupid” to do that. ER 7: 1942. Smith assured him he was not going to do that. There (continued on next page)
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Government Statement of Facts The Record
is nothing in the record that states or indicates this was said in a “dismissive” manner or tone.
“Throughout the remainder of the interview, Smith and Manzo pushed Brown to disclose the details of the federal investigation and his relationship to the FBI. They made plain that the FBI’s activities – not any corrupt deputy, not any cell phone – were their focus . . .” GAB 18.
As noted above, during the course of the interview, Manzo said “let’s concentrate on the deputy for now . . .” ER 7: 1935. The interview with Brown on August 19 lasted over an hour, and the government introduced only selected excerpts. RT 674-682. Brown told Smith and Manzo that in addition to cell phones, he was bringing in “meth, cocaine and marijuana.” ER 3: 1070. Smith and Manzo were trying to gather information about the different stories Brown had told. ER 7: 1925-27.
“Brown hesitatingly—after being promised a cheeseburger, cigarettes, and other accommodations—began to talk.” GAB 19.
In response to Brown’s request, Manzo told Brown they could get him a cheeseburger, and added as to the other items Brown requested, it would require approval from “somebody way above us.” ER 7: 1935.
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Government Statement of Facts The Record
“Smith said they knew the FBI had been in the jails at least a month. (ER 1939-40 [footnote 6].” GAB 20 – Footnote 6: “Indeed, about a month before the interview, subpoenas relating to a use of force incident at Twin Towers were served on LASD. (TT 716 (GER 65)).” GAB 20 (emphasis added).
Brown asked Smith why he thought it was a month, and Smith explained it was because Brown had made the phone calls to the FBI number a month earlier. ER 7: 1939. The subpoena referenced by the government was dated June 24, 2011, two months before the interview, and was served on the LASD legal department in Monterey Park. GER 1049.
“Two days later [on August 21], Brown was interviewed again. This time, Smith and Manzo were joined by an ICIB lieutenant, Leavins. (Exhibit 9R, 10 (ER 1951); see TT 717-21 (GER 66-70).” GAB 21 (emphasis added).
After the meeting at Sheriff’s headquarters on August 20, ICIB investigators were responsible for interviewing Brown. JOB 14. Smith and Manzo were present at many of the subsequent ICIB interviews of Brown because they escorted Brown to the interviews. ER 2: 767A-767B; RT 936-37.
“They were unaware of Brown’s interviews by LASD, of defendants’ focus on the federal investigation, and of Thompson’s embargo on visits ‘from outside [law enforcement].’ (TT 722, 1642-43, 1792 (ER 968, 1044; GER 71, 301); Exhibit 2 (ER 1923).)” GAB 22.
Thompson did not “embargo” visits from outside law enforcement. Thompson had instructed that Brown was to have “no phones, no visits, especially from outside LE [law enforcement] without my approval.” (RT 575 (GER 24), Exhibit 2 (ER 7: 1923).)
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Government Statement of Facts The Record
About an hour and a half after the FBI was kicked out of Men’s Central Jail (TT 726 (GER 72)), Smith, Manzo and Leavins, now joined by Carey, interviewed Brown once again. (Exhibits 16R, 17 (ER 1978- 94); TT 726-28 (GER 72-74).)” GAB 24 (emphasis added).
The agents were asked to remain at the jail until Captain Carey arrived because he wanted to speak with them, and instead the agents left of their own accord. JOB 15.
“Abruptly, Leavins raised the topic of moving Brown out of Men’s Central Jail. (ER 1981.) Interrupting Brown, Leavins suddenly suggested Brown was unsafe . . . (Id.)” GAB 25 (emphasis added).
Brown raised concerns about his safety when he first implicated deputies in smuggling on August 15, and continued to do so in subsequent interviews. ER 7: 1900-01, 1927; ER 2: 765. FBI ADIC Martinez expressed concern about Brown’s safety in his conversation with Baca on August 18. JOB 13, n.3; ER 4: 1234-35.
“First, as Leavins announced during Brown’s interview, Brown suddenly had to be moved. This was unusual. High security inmates – including an inmate who murdered a jail deputy – were housed at the jail, listed under their real names and with their real housing location. (TT 1344-45 (ER 862-63); accord TT 577 (GER 26).)” GAB 28.
The record citations do not contain any testimony or other evidence that this was unusual. Det. Lillenfeld, a 30 year LASD veteran and homicide investigator, who was qualified as an expert, testified it was not uncommon for a cooperating witness to be moved and held under an alias, and shown as having been released. RT 2817-22.
“At 10:23 that night [August 23] – after an afternoon and evening spent in a frenzy of calls between Thompson, Carey, Smith, Leavins and others – Carey called LASD’s station in San Dimas. (Exhibit 67 (GER 1364).)” GAB 29.
There is only one call between Smith and any of these individuals on August 23, and it was made by Leavins at 6:42 p.m. to Smith’s personal cell phone and did not last more than a minute. GER 1364.
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Government Statement of Facts The Record
“News of the writ for Brown led to a panic.” GAB 35
Defendants’ superiors made plans about what to do if a writ for Brown was received, which was to contact legal counsel. JOB 20; ER 7: 2038. There was no evidence there was a “panic.”
“As a result—as Special Agent Marx discovered when she looked for him on August 26, 2011—Brown disappeared from LASD’s online inmate-location database, showing he had been ‘released.’ (Exhibit 47 (ER 2013).)” GAB 37.
The public online data base showed Brown had been released to “OTHR,” and that it was a “CUSTODY RELEASE,” meaning Brown was still in custody. ER 7: 2013; TT 2817-18; JOB 16.
“The original jacket, which should have contained a copy of the federal writ, was never found by LASD employees in charge of responding to federal subpoenas. (TT 1103-05, 1137-38 (GER 149-51, 153-54).)” GAB 38
This assumes the writ was received. But no LASD employee testified to having received a writ for Brown. Academia testified he examined Brown’s record jacket on the same day the writ was reportedly transmitted and there was no federal writ in the jacket. RT 1216.
“In those cases, the original and the alias file jacket would be ‘merge[d]’ with notations on the jacket indicating all actions that had been taken. (TT 1153 GER 165).) No such thing was done here. (TT 1154-55, 1181 (GER 166-67, 178).)” GAB 38.
Brown’s booking number was included in the alias booking jacket. RT 1132-34; Exhibit 45; Exhibit 46.
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Government Statement of Facts The Record
“Meanwhile, Thompson made sure no writ would be honored if it was served in person.” GAB 40. . . . “Asked what attorney (would) [sic] be used to ‘review possible Court Order from FBI,’ Thompson responded: ‘Probably the one who was on vacation for a month.’” GAB 40-41 (Exh. 60, ER 2035)
In the event a writ was received, arrangements were made to refer it to county counsel so that Brown was not be released without approval, and not so it would not be honored. ER 7: 2038, 2035, Exhibit 60. Thompson was known for his sarcasm. ER 4: 1172.
“Meanwhile, Brown moved to San Dimas – despite the medical issues that had previously made the move inappropriate. (TT 1288 (ER 823).)” GAB 42.
Brown was moved to San Dimas after he was approved for self-meds. RT 1302; Exhibit 47.
“On September 2, 2011, Brown—still booked as “Chris Johnson”— was moved back to Men’s Central Jail for medical reasons . . .” GAB 44.
Brown was moved back to MCJ from San Dimas because he had a temper tantrum and threw his food all over his cell in response to not getting take-out food from In-N-Out Burger. ER 5: 1413-17, TT 2865-69; JOB 21.
“Leavins was the lead lieutenant on the task force; Craig and Long were lead investigators; Smith and Manzo, although members of OSJ, also joined. (TT 936 (ER 767A).)” GAB 55 (emphasis added).
Smith and Manzo were “assigned to the task force,” as were other OSJ deputies, and their role was to assist investigators with inmate workups and access to the jail. ER 2: 767-A-767B; TT 936-37 (emphasis added).
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Government Statement of Facts The Record
“Thereafter, once again, there was a flurry of phone calls between Craig, Leavins, Carey, Smith and Tanaka. (Exhibit 68 (GER 1369.)” GAB 57.
The phone logs on the day in question show there were no calls between Smith and Leavins or Carey or Tanaka at any time that day. There was only one call between Smith and anyone else listed, which was a call Smith made from his personal cell phone at 3:50 p.m. to Craig, lasting not more than one minute. There were no calls among any of the people listed for two hours before that call, and 50 minutes after. GER 1369.
“Immediately after hanging up, Long burst out exuberantly, mocking Narro’s tone: ‘They’re scared! They’re like, ‘Do you know when is the warrant ---‘ (Exhibit 112R; ER 2108.) The room broke into laughter before Craig interrupted, reminding Long, ‘You’re still rolling.’ (Id.)” GAB 63 (emphasis added).
The transcript shows that laughter did not break out “before Craig interrupted,” but after Craig told her she was still being taped. There is no evidence how many people were in the room; the transcript says “multiple people laugh.”
“The FBI learned, from deputies themselves, about the ‘unwritten rules’ within the jail – among them, that ‘if you [an inmate] fight with a deputy . . . you go to the hospital.’ (TT 1578 (ER 399).)” GAB 67 (emphasis added).
Only a single deputy testified to such a rule.
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Government Statement of Facts The Record
“Deputies admitted to witnessing and participating in egregious use-of-force incidents: provoking fights with inmates (TT 1422-23, 1688 (ER 384-85; GER 306)) and beating inmates (TT 1333, 1412, 1421-22 (ER 374, 383-84; GER 195)).” GAB 67-68.
Only one deputy admitted to this, and it was cooperating witness Michel.
“Smith specifically said he was aware that the FBI had been in the jails at least a month – corresponding to the date the first grand jury subpoenas [sic] served on LASD. (TT 716 (GER 65); ER 1939-40.)” GAB 68-69.
Smith told Brown he knew it had been a month because Brown had made his three phone calls a month earlier. ER 7: 1939.This did not correspond to the first grand jury subpoena which, as noted above, was dated June 24, 2011, and served on the LASD legal department in Monterey Park. GER 1049.
“Smith’s and Manzo’s counsel, going further, argued that their clients had no knowledge of the grand jury investigation at all. (Manzo: TT 3781, 3785, 3788, 3804 (GER 846, 850, 853, 869); Smith: TT 3846 (GER 909).)” GAB 73-74.
Neither Smith nor Manzo made such an argument. The Manzo citation is to his counsel’s summation where he argued there was no evidence as of August 19, when Smith and Manzo interviewed Brown, that he knew of a grand jury investigation. The Smith citation is to his counsel’s summation rebutting the government’s contention that Smith knew of the June 2011 subpoena at the time of the August 19 interview of Brown. GER 909, RT 3846.
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Certificate of Compliance
I certify that (1) this brief is accompanied by a motion for leave to file an
oversized brief pursuant to Circuit Rule 32-2 and is 20,206 words long, excluding
the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and (2) this brief
complies with the typeface requirements of Fed. R. App. 32(a)(5) and Circuit
Rule 32-1, because it has been prepared in a proportionally spaced typeface of 14
points or more using Microsoft Word 2010.
Dated: May 20, 2016 /s/ William J. Genego
Certificate of Service
I hereby certify that on May 20, 2016, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Dated: May 20, 2016 /s/ William J. Genego
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