thompson, et al, 9th circuit appeals brief 7-24-2015

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



v. GREGORY THOMPSON,

Defendant-Appellant.

Case No. 14-50442



v. MICKEY MANZO,


Case No. 14-50446



v. SCOTT CRAIG,


Case No. 14-50449



v. STEPHEN LEAVINS, Defendant-Appellant.

Case No. 14-50455


________________________________

Joint Opening Brief of Defendants-Appellants ________________________________

Case: 14-50442, 07/24/2015, ID: 9622359, DktEntry: 36, Page 1 of 182

HILARY POTASHNER Acting 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 Attorney for Gerard Smith

KEVIN BARRY MCDERMOTT 8001 Irvine Center Drive, Suite 1420 Irvine, California 92618 Telephone: 949-596-0102

Attorney for Gregory Thompson

MATTHEW J. LOMBARD Law Offices of Matthew J. Lombard 2115 Main Street Santa Monica, California 90405 Telephone: 310-399-3259

Attorney 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


i

TABLE OF CONTENTS

INTRODUCTION .................................................................................................... 1JURISDICTIONAL STATEMENT AND BAIL STATUS.................................... 3ISSUES PRESENTED .............................................................................................. 4STANDARDS OF REVIEW..................................................................................... 6STATEMENT OF THE CASE ................................................................................ 8

A. Procedural History .................................................................................. 8B. Statement of Facts ................................................................................... 9

1. Background: LASDs Structure and Chain of Command ................ 92. LASD Deputies Discover a Cell Phone in the Property of a

High-Risk Inmate. ........................................................................... 103. The Sheriff Learns of the Contraband Phone and Issues

Marching Orders. ............................................................................ 134. The First Set of Orders: Keep Anthony Brown Safe ...................... 14

a) Brown is allowed out of his cell due to a breach in security, and additional safeguards are ordered. ........................................ 14

b) A federal writ is obtained for Brown............................................ 18c) After meeting with the Sheriff, the U.S. Attorneys Office

tells the U.S. Marshal not to act on the writ. ............................... 20d) Brown is released to state prison. ................................................ 21

5. The Second Set of Orders: Get to the Bottom of How and Why the Smuggled Contraband Came into the Jail ........................ 22

a) ICIB investigators interview Anthony Brown. ............................ 22b) ICIB investigators interview corrupt deputy Gilbert Michel. ..... 24c) ICIB investigators interview LASD deputy William Courson. ... 27


ii

d) ICIB tries to obtain information about the FBIs investigation into the L.A. County jails. ...................................... 28

e) ICIB ceases its investigation after learning that the D.A.s office would not bring charges related to the smuggled cell phone. .......................................................................................... 32

SUMMARY OF ARGUMENT .............................................................................. 33ARGUMENT .......................................................................................................... 38I. The Instructional Errors Denied Defendants The Right to Have the Jury

Consider Their Mens Rea Defenses of Authorization and Good Faith. ....... 38A. The Court Erred In Denying an Authorization Instruction and In

Giving an Erroneous Good Faith Instruction. ....................................... 391. It Was Error to Deny an Authorization Instruction. ....................... 392. The Courts Altered Good Faith Instruction Was Incorrect. ........ 46

B. Reversal Is Separately Required Because the Courts Instructions Erroneously Advised the Jury that Local Officers Could Not Investigate the Introduction of Contraband into MCJ. ......................... 50

C. The Improper Dual Purpose Instruction Further Undermined the Defendants Right to Have the Jury Consider Their Mens Rea Defense. ................................................................................................. 55

II. The Jury Instructions Allowed Conviction on an Invalid Legal Theory. ...... 57A. Introduction ........................................................................................... 57B. The Governments Five Categories of Obstructive Conduct .......... 58

1. Category 1 Tightening LASDs Inmate Visiting Rules ................ 582. Category 2 Hiding Brown from the FBI, U.S. Marshal, and

Grand Jury ....................................................................................... 603. Category 3 Witness Tampering .................................................... 614. Category 4 Investigating the FBI .................................................. 62


iii

5. Category 5 Threatening to Arrest Agent Marx ............................ 64C. The Obstruction Counts of Conviction Should Be Vacated Because

the Government Pressed an Invalid Theory. ........................................ 64D. 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. ........................ 661. Section 1503s Mens Rea ................................................................ 662. The Court Relied on an Erroneous Basis in Declining the

Proposed Instructions. .................................................................... 68E. The Court Erred in Instructing the Jury that It Could Convict If

It Found that Defendants Intended to Investigate a Grand Jury Investigation, Rather than a Grand Jury Proceeding. .................. 72

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. ............................................................................................ 76

III. The Court Erred in Precluding the Testimony of a Key Defense Witness. ......................................................................................................... 77

A. Introduction ........................................................................................... 77B. Relevant Background ............................................................................. 79

1. Key Background Facts .................................................................... 792. Leavinss Testimony Related to Paul Yoshinaga ............................ 813. Yoshinagas Proffered Testimony .................................................. 83

C. The District Court Erred by Precluding Yoshinagas Testimony, and in Doing So Infringed Leavinss Constitutional Right to Present a Defense. .............................................................................................. 861. Yoshinagas Testimony Was Relevant. .......................................... 862. Yoshinagas Testimony Was Not Excludable Under Rule 403. ..... 90


iv

3. Precluding Yoshinagas Testimony Infringed Leavinss Constitutional Right to Present a Defense. ..................................... 92

D. The Government Improperly Capitalized on the Erroneous Preclusion Order. .................................................................................. 92

E. The Errors Prejudiced the Other Defendants. ...................................... 99IV. The District Courts Many Erroneous Evidentiary Rulings, Alone and

Cumulatively, Resulted in a Denial of the Right to Present a Complete Defense. .......................................................................................................101

A. The District Courts Erroneous Evidentiary Rulings Individually Require Reversal. .................................................................................1011. The District Court Improperly Excluded Evidence Rebutting

the Governments Contention that Brown Could Have Been Safely Held at MCJ. ......................................................................101

2. The District Court Improperly Admitted Irrelevant and Highly Prejudicial Prosecution Evidence Concerning Specific Instances of Inmate Abuse in the LA County Jails. ......................104

3. The District Court Improperly Limited Cross-Examination of Jason Pearson Regarding Service of the Writ for Anthony Browns Testimony. ......................................................................108

4. The District Court Erroneously Permitted an LASD Sergeant to Testify that LASD Lacked Jurisdiction to Investigate the FBI While Limiting Cross-Examination on that Subject. .............110

5. The District Court Improperly Refused to Permit the Defense to Question Assistant United States Attorney Lawrence Middleton as an Adverse Witness. ................................................113

6. The District Court Erroneously Excluded Evidence of Bacas Attitude About the FBIs Investigationand the Specific Orders He Gave in Late September. .............................................116


v

7. The Court Made Other Erroneous Evidentiary Rulings. .............123B. Considered Cumulatively, the Evidentiary Errors Require

Reversal. ..............................................................................................125V. The Courts Dismissal of Juror Five Violated Defendants Sixth

Amendment Jury Trial Right. ......................................................................128A. Introduction .........................................................................................128B. Relevant Law .......................................................................................128C. Relevant Facts .....................................................................................130D. The District Court Erred in Dismissing Juror Five Because There

Was a Reasonable Possibility that Her Dismissal Request Was Due to Conflict Among the Jurors. .............................................................134

VI. The Defendants Did Not Have Fair Notice that their Actions Violated Federal Criminal Law. .................................................................................138

A. Introduction .........................................................................................138B. The Defendants Did Not Have Fair Notice that Their Actions

Would Subject Them to Criminal Liability. ........................................1401. Application of the Fair Warning Factors from Lanier ..................141

a) Vagueness ..................................................................................141b) Strict construction .....................................................................142c) Novel interpretation ..................................................................142

2. Application of Lanier Mandates Immunity from Prosecution Under Fair Notice Principles. .......................................................144

3. State Law Enforcement Investigation of Criminal Law Violations Is a Power Reserved to the States Under the Tenth Amendment. ..................................................................................147

VII. The Convictions Rest On a Legally Mistaken Definition of Corruptly. ...............................................................................................149


vi

A. This Case Exemplifies the Danger of the Broad Definition of Corruptly. .......................................................................................150

B. If Corruptly is Interpreted to Mean By Bribery, There Is Insufficient Evidence to Sustain the Convictions. ..............................152

VIII. The Case Should Be Reassigned to a Different Judge on Remand. ............152A. The Judge Exhibited Personal Bias Against the Defendants. .............154B. The Judge Will Likely Not Be Able to Put Out of His Mind

Several Previously Expressed Erroneous Views. ................................156CONCLUSION .....................................................................................................158ADDENDUM .......................................................................................................159STATEMENT OF RELATED CASES ...............................................................160CERTIFICATE OF COMPLIANCE ...................................................................161


vii

TABLE OF AUTHORITIES

FEDERAL CASES Page(s)

Aguilera v. Baca,

510 F.3d 1161 (9th Cir. 2007) ....................................................................... 43 Andrews v. Metropolitan Northern Commuter Railroad Co.,

882 F.2d 705 (2d Cir. 1989) ........................................................................ 112 Armstrong v. Exceptional Child Center, Inc.,

135 S. Ct. 1378 (2015) ................................................................................... 53 Baucom v. Martin,

677 F.2d 1346 (11th Cir. 1982) ................................................................... 144 Bisno v. United States,

299 F.2d 711 (9th Cir. 1961) .................................................................. passim Bouie v. City of Columbia,

378 U.S. 347 (1964) .................................................................................... 140 Chambers v. Mississippi,

410 U.S. 284 (1973) ..................................................................................... 127 Chapman v. California,

386 U.S. 18 (1967) ....................................................................................... 110 Connally v. General Const. Co.,

269 U.S. 385 (1926) ..................................................................................... 141 Dixon v. United States,

548 U.S. 1 (2006) ......................................................................................... 41 Dorn v. Burlington North Santa Fe Railroad Co.,

397 F.3d 1183 (9th Cir. 2005) ............................................................... 118, 119


viii

FEDERAL CASES (cont.) Page(s)

In re Ellis, 356 F.3d 1198 (9th Cir. 2004) ..............................................................152, 153

F.B.I. v. Superior Court,

507 F. Supp. 2d 1082 (N.D. Cal. 2007) ....................................................... 143 Florida v. Cohen,

887 F.2d 1451 (11th Cir. 1989) .................................................................... 143 Fowler v. Sacramento Cnty. Sheriffs Department,

421 F.3d 1027 (9th Cir. 2005) .................................................................... 109 Gustafson v. Alloyd Co.,

513 U.S. 561 (1995) ...................................................................................... 150 Haili v. United States,

260 F.2d 744 (9th Cir. 1958) ................................................................... 57, 73 Holmes v. South Carolina,

547 U.S. 319 (2006) .................................................................................... 126 Howard v. S.E.C.,

376 F.3d 1136 (D.C. Cir. 2004) .................................................................... 89 Idaho v. Horiuchi,

253 F.3d 359 (9th Cir. 2001), vacated as moot, 266 F.3d 979 ....................... 147 Kentucky v. Long,

837 F.2d 727 (6th Cir. 1988) ................................................................. 53, 143 Kolender v. Lawson,

461 U.S. 352 (1983) ..................................................................................... 141 Kroll v. United States,

433 F.2d 1282 (5th Cir. 1970) ....................................................................... 89


ix


Mesa v. California, 489 U.S. 121 (1989) .................................................................................... 148

Messerschmidt v. Millender,

132 S. Ct. 1235 (2012) ......................................................................... 144, 145 New York v. Tanella,

374 F.3d 141 (2d Cir. 2004) ....................................................................... 144 Old Chief v. United States,

519 U.S. 172 (1997) ..................................................................................... 107 Parle v. Runnels,

505 F.3d 922 (9th Cir. 2007) .......................................................... 77, 103, 126 United States v. Petersen,

513 F.2d 1133 (9th Cir. 1975) ............................................................ 40, 43, 48 Pettibone v. United States,

148 U.S. 197 (1893) ...................................................................................... 70 Reynolds v. Hartford Finance Services Group, Inc.,

426 F.3d 1020 (9th Cir. 2005), revd on other grounds by Safeco Ins. Co of Am. v. Burr, 551 U.S. 47 (2007) ................................................................ 88

Smith v. Goguen,

415 U.S. 566 (1974) ..................................................................................... 141 Texas v. Carey,

885 F. Supp. 940 (W.D. Tex. 1994) ........................................................... 144 Torres v. County of Oakland,

758 F.2d 147 (6th Cir. 1985) ........................................................................ 112 United States v. Aguilar,

515 U.S. 593 (1995) ............................................................................... passim


x


United States v. Alcantara-Castillo, --- F.3d -- 2015, WL 3619853 (9th Cir. June 11, 2015) .................................. 98 United States v. Alghazouli,

517 F.3d 1179 (9th Cir. 2008) ....................................................................... 76 United States v. Arambula-Ruiz,

987 F.2d 599 (9th Cir. 1993) ....................................................................... 107 United States v. Atondo-Santos,

385 F.3d 1199 (9th Cir. 2004) ..................................................................... 153 United States v. Bahamonde,

445 F.3d 1225 (9th Cir. 2006) ........................................................................ 6 United States v. Banks,

514 F.3d 959 (9th Cir. 2008) ........................................................................ 56 United States v. Barker,

546 F.2d 940 (D.C. Cir. 1976) .......................................................... 40, 43, 44 United States v. Bishop,

291 F.3d 1100 (9th Cir. 2002) ...................................................................... 99 United States v. Blueford,

312 F.3d 962 (9th Cir. 2002) ........................................................................ 98 United States v. Bonds,

784 F.3d 582 (9th Cir. 2015) ............................................................... 141, 150 United States v. Boulware,

384 F.3d 794 (9th Cir. 2004) .......................................................... 91, 126, 127 United States v. Brown,

688 F.2d 596 (9th Cir. 1982) ................................................................... 67, 73


xi


United States v. Brown, 823 F.3d 591 (D.C. Cir. 1987) ...................................................... 128, 135, 136

United States v. Bryant,

461 F.2d 912 (6th Cir. 1972) ........................................................................ 115 United States v. Burt,

410 F.3d 1100 (9th Cir. 2005) ...................................................................... 45 United States v. Bush,

626 F.3d 527 (9th Cir. 2010) ........................................................................ 89 United States v. Castagana,

604 F.3d 1160 (9th Cir. 2010) .................................................................. 6, 49 United States v. Coyne,

4 F.3d 100 (2d Cir. 1993) ............................................................................. 56 United States v. Custer Channel Wing Corp.,

376 F.2d 675 (4th Cir. 1967) ......................................................................... 89 United States v. DeFries,

129 F.3d 1293 (D.C. Cir. 1997) ..................................................................... 87 United States v. Doe,

705 F.3d 1134 (9th Cir. 2013) ...................................................... 40, 41, 42, 45 United States v. Egan,

860 F.2d 904 (9th Cir. 1988) .......................................................................... 6 United States v. Evans,

728 F.3d 953 (9th Cir. 2013) ................................................................. 92, 121 United States v. Fassnacht,

332 F.3d 440 (7th Cir. 2003) ......................................................................... 71


xii


United States v. Fernandez, 388 F.3d 1199 (9th Cir. 2004) ...................................................................... 77

United States v. Fierros,

692 F.2d 1291 (9th Cir. 1982) ....................................................................... 40 United States v. Frederick,

78 F.3d 1370 (9th Cir. 1996) ......................................................................... 77 United States v. Fulbright,

105 F.3d 443 (9th Cir. 1997), overruled on other grounds by United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc) .............. passim

United States v. Gonzalez-Flores,

418 F.3d 1093 (9th Cir. 2005) ............................................................. 107, 108 United States v. Guo,

634 F.3d 1119 (9th Cir. 2011) ......................................................................... 7 United States v. Gurolla,

333 F.3d 944 (9th Cir. 2003) .......................................................................... 6 United States v. Haischer,

780 F.3d 1277 (9th Cir. 2015) ............................................................ 90, 91, 92 United States v. Harriss,

347 U.S. 612 (1954) .................................................................................... 140 United States v. Hernandez,

730 F.2d 895 (2d Cir. 1984) ......................................................................... 65 United States v. Hitt,

981 F.2d 422 (9th Cir. 1992) ...................................................................... 108 United States v. James,

169 F.3d 1210 (9th Cir. 1999) ...................................................................... 121


xiii


United States v. Kay, 513 F.3d 432 (5th Cir. 2007) .......................................................................... 7

United States v. Kim,

65 F.3d 123 (9th Cir. 1995) ...................................................................... 45, 76 United States v. Kojayan,

8 F.3d 1315 (9th Cir. 1993) ........................................................................... 98 United States v. LaRouche Campaign,

695 F. Supp. 1265 (D. Mass. 1988) .............................................................. 56 United States v. Ladum,

141 F.3d 1328 (9th Cir. 1988) ....................................................................... 65 United States v. Lanier,

520 U.S. 259 (1997) ............................................................................... passim United States v. Liu,

731 F.3d 982 (9th Cir. 2013) ......................................................................... 49 United States v. Lopez,

514 U.S. 549 (1995) ..................................................................................... 147 United States v. Lyons,

472 F.3d 1055 (9th Cir. 2006) ..................................................................... 153 United States v. Macari,

453 F.3d 926 (7th Cir. 2006) ............................................................. 69, 70, 71 United States v. Marguet-Pillado,

648 F.3d 1001 (9th Cir. 2011) ....................................................................... 72 United States v. Mayans,

17 F.3d 1174 (9th Cir. 1994) ....................................................................... 106


xiv


United States v. McFall, 558 F.3d 951 (9th Cir. 2009) ........................................................................ 90

United States v. McLister,

608 F.2d 785 (9th Cir. 1979) ....................................................................... 125 United States v. Metcalf,

435 F.2d 754 (9th Cir. 1970) ................................................................. 73, 149 United States v. Montes,

628 F.3d 1183 (9th Cir. 2011) ....................................................... 104, 105, 112 United States v. Moran,

493 F.3d 1002 (9th Cir. 2007) ............................................................... passim United States v. Morsette,

622 F.3d 1200 (9th Cir. 2010) ........................................................................ 6 United States v. Namvar, 498 Fed. Appx. 749 (9th Cir. 2012) ............................................................ 121 United States v. Paul,

561 F.3d 970 (9th Cir. 2009) ....................................................................... 153 United States v. Peyton,

353 F.3d 1080 (9th Cir. 2003) ..................................................................... 153 United States v. Pham,

960 F.2d 1391 (9th Cir. 1991) ....................................................................... 57 United States v. Pineda-Doval,

614 F.3d 1019 (9th Cir. 2010) ...................................................................... 126 United States v. Potter,

630 F.3d 1260 (9th Cir. 2011) ......................................................................... 7


xv


United States v. Quach, 302 F.3d 1096 (9th Cir. 2002) ..................................................................... 155

United States v. Rasheed,

663 F.2d 843 (9th Cir. 1981) ................................................................. 67, 149 United States v. Reveles-Espinoza,

522 F.3d 1044 (9th Cir. 2008) ........................................................................ 7 United States v. Reyes,

313 F.3d 1152 (9th Cir. 2002) ...................................................................... 153 United States v. Ryan,

455 F.2d 728 (9th Cir. 1972) ............................................................. 67, 69, 73 United States v. Sanabria,

645 F.3d 505 (1st Cir. 2011) ........................................................................ 125 United States v. Schoneberg,

396 F.3d 1036 (9th Cir. 2005) ...................................................... 109, 110, 111 United States v. Smith-Baltiher,

424 F.3d 913 (9th Cir. 2005) ................................................................... 39, 43 United States v. Stever,

603 F.3d 747 (9th Cir. 2010) ......................................................... 92, 126, 127 United States v. Symington,

195 F.3d 1080 (9th Cir. 1999) ................................................................ passim United States v. Thomas,

32 F.3d 418 (9th Cir. 1994) ..................................................................... 91, 98 United States v. Thomas,

116 F.3d 606 (2d Cir. 1997) ......................................................................... 129


xvi


United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d Cir. 2008) .................................................................. passim

United States v. Tsui,

646 F.2d 365 (9th Cir. 1981) ........................................................................ 115 United States v. Wallace,

848 F.2d 1464 (9th Cir. 1988) ...................................................................... 77 United States v. Washington Water Power Co.,

793 F.2d 1079 (9th Cir. 1986) .................................................................. 62, 75 United States v. Waters,

627 F.3d 345 (9th Cir. 2010) ........................................................ 103, 113, 125 United States v. Whitman,

771 F.2d 1348 (9th Cir. 1985) ...................................................................... 127 United States v. Withers,

638 F.3d 1055 (9th Cir. 2011) ...................................................................... 153 United States v. Woodward,

149 F.3d 46 (1st Cir. 1998) ........................................................................... 56 United States v. Yida,

498 F.3d 945 (9th Cir. 2007) .......................................................................... 6 United States v. Zuniga,

6 F.3d 569 (9th Cir. 1993) ............................................................................ 45 Verlinden B. V. v. Central Bank of Nigeria,

461 U.S. 480 (1983) .............................................................................. passim Walker v. Endell,

850 F.2d 470 (9th Cir 1987) ......................................................................... 42


xvii


Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011), revd on other grounds sub nom. Johnson v. Williams, 133 S. Ct. 1088 (2013) ............................................. 6, 138

Yates v. United States,

135 S. Ct. 1074 (2015) ................................................................................. 150

STATE CASES People v. George,

30 Cal. App. 4th 262 (1994) ......................................................................... 52

FEDERAL STATUTES 18 U.S.C. 242 .................................................................................................... 144 18 U.S.C. 371 ......................................................................................................... 8 18 U.S.C. 1001 ............................................................................................. passim 18 U.S.C. 1503 .............................................................................................. passim 18 U.S.C. 3231 ....................................................................................................... 3 28 U.S.C. 1291 ...................................................................................................... 3 28 U.S.C. 1442 .................................................................................................. 142 28 U.S.C. 1442(a) ....................................................................... 140, 143, 148, 149 28 U.S.C. 1983 .......................................................................................... 144, 146


xviii

FEDERAL RULES Page(s)

Fed. R. App. P. 4(b) ................................................................................................. 3 Fed. R. Evid. 401 ................................................................................................... 86 Fed. R. Evid. 403 ............................................................................................ passim Fed. R. Evid. 611(c) ................................................................................. 114, 115, 117 Fed. R. Evid. 801(a) .............................................................................................. 123 Fed. R. Evid. 801(c)(2) ......................................................................................... 123 Fed. R. Crim. P. 24(c)(1) ..................................................................................... 128

STATE STATUTES

Cal. Penal Code 4573.6 .................................................................................. 52, 53

Cal. Penal Code 4575 ..................................................................................... 52, 53

OTHER AUTHORITIES A. Raynor, The New States Sovereignty Movement, 90 IND. L.J. 613 (2015) ............ 147


1

INTRODUCTION

During a search of an inmates property in August, 2011, deputies of the Los

Angeles County Sheriffs Department (LASD) discovered a contraband cell

phone. The inmate, Anthony Brown, had recently been sentenced to state prison

for 423 years to life. The phone contained pictures of cash and narcotics.

The inmate first claimed a nurse had brought him the phone, as well as

drugs, including methamphetamine, cocaine and marijuana, which he distributed in

the jail. He later reported it was a deputy who brought him the phone and drugs,

and said that other deputies were involved in the same activity. The inmate

expressed fear of retaliation from deputies, and fear of other inmates for being an

informant.

Ten days after the phone was discovered by LASD, the FBI Assistant

Director in Charge contacted the Sheriff and told him the phone belonged to the

FBI and he wanted it back. He also expressed his concern about the inmates

safety and requested that he be protected from possible harm.

The Sheriff ordered a full investigation into the FBIs actions, including

potential violations of state law by the agents who caused the phone to be delivered

to the inmate. The Sheriff and other high ranking officials issued facially lawful

orders to carry out that investigation and to insure nothing happened to the inmate.


2

The government maintained the Sheriff and other officials issued the facially

lawful orders with the intent to obstruct a federal grand jury investigation into civil

rights violations in the jails, and that Defendants carried out the orders with that

same intent. The Defendants maintained they acted in good faith in carrying out

the orders, and reasonably believed the orders were lawful and thus lacked the mens

rea required for conviction. The Defendants efforts to establish their good faith

and lawful conduct were stymied at every turn when the court excluded relevant

evidence and denied appropriate jury instructions. As a result, Defendants were

convicted after trial and now bring this appeal seeking redress from this Court.


3

JURISDICTIONAL STATEMENT AND BAIL STATUS

All six Defendants in this consolidated appeal were sentenced September 23,

2014, and their judgment and commitment orders were entered September 26,

2014. ER 8: 2330, 2335, 2340, 2346, 2351, 2358.1 They each filed a timely notice of

appeal. ER 8: 2334, 2339, 2345, 2350, 2356, 2362. See Fed. R. App. P. 4(b). Co-

defendant James Sexton was separately tried after the court granted a severance

motion.

The district court, the Honorable Percy Anderson, had original jurisdiction

under 18 U.S.C. 3231. This Court has jurisdiction under 28 U.S.C. 1291.

Defendants are on bail, granted by this Court. CR 769.

1 The excerpts of record are in nine volumes, consisting of Volumes 1A and 1B (containing the rulings challenged on appeal) and Volumes 2-8. They are cited as ER [Volume #]: page. The reporters transcripts of the trial are consecutively numbered and available at CR 690 (pages 1-35), 705 (36-136), 728 (137-265), 742 (266-431), 691 (430-621), 692 (622-696), 707 (697-795), 693 (796-876), 708 (877-1029), 694 (1030-1261), 695 (1262-1352), 710 (1353-1488), 696 (1489-1649), 711 (1650-1705), 697 (1706-1807), 745 (1808-1978), 698 (1979-2223), 699 (2224-2371), 713 (2372-2450), 700 (2451-2686), 701 (2687-2760), 483 (2761-2894), 702 (2895-3052), 703 (3053-3214), 714 (3215-3269), 704 (3216-3349), 716 (3350-3455), 732 (3456-3584), 484 (3585-3616), 733 (3617-3677), 485 (3688-3719), 717 (3720-3810), 734 (3811-3948), 486 (3949-4021), 737 (4022-4092).


4

ISSUES PRESENTED

1. Whether Defendants were denied their right to have the jury consider

their authorization and good faith defenses?

2. Whether the district court erred when it declined to give an

instruction to prevent conviction on the prosecutions erroneous theory that

Defendants could be found liable based on having intended to obstruct an FBI

investigation, when the prosecution was actually required to show that Defendants

intended to obstruct a grand jury proceeding?

3. Did the district court err when it precluded the testimony of Paul

Yoshinaga, LASDs Chief Legal Advisor, who would have testified, among other

things, that Leavins repeatedly sought his legal advice during the time period

involved in this case, and whose testimony thus would have provided critical

support for the conclusion that Defendants acted in good faith, with a reasonable

belief that their conduct was consistent with lawful orders?

4. Whether the district courts many erroneous evidentiary rulings,

individually and cumulatively, denied the defendants the right to present a

complete defense?

5. Whether the district court erred when it dismissed a juror on the fifth

day of deliberations, where the jurors remarks to the court indicated at least a


5

reasonable possibility that difficulties she was having stemmed from her

disagreement with another juror (or jurors) about the merits of the case?

6. Whether Defendants convictions violated their due process right to

fair notice that their conduct could subject them to criminal liability?

7. Whether this Courts definition of corruptly, should be

reconsidered, because it is vague and allows for arbitrary and capricious

enforcement of the omnibus clause of 18 U.S.C. 1503?

8. Whether the case should be reassigned on remand to preserve the

appearance of justice where the district court appeared rigid in its erroneous legal

conclusions and expressed personal bias toward the defendants?


6

STANDARDS OF REVIEW

Denial of a jury instruction based on a question of law is reviewed de novo.

United States v. Castagana, 604 F.3d 1160, 1163 n.2 (9th Cir. 2010). Whether the

jury instructions adequately covered a defendants proffered defense is a question

of law reviewed de novo. United States v. Morsette, 622 F.3d 1200, 1201 (9th Cir.

2010) (per curiam).

Whether reversal is required because the government proceeded on an

invalid theory of liability is reviewed de novo. United States v. Egan, 860 F.2d 904,

907 (9th Cir. 1988).

This Court reviews a district courts evidentiary rulings for an abuse of

discretion and its interpretation of the Federal Rules of Evidence de novo. United

States v. Yida, 498 F.3d 945, 949 (9th Cir. 2007). Where an appellant claims the

district court sustained too many objections, this Court reverses if the sustained

objections led to the denial of a fair trial. United States v. Gurolla, 333 F.3d 944, 958

(9th Cir. 2003). The Court reviews de novo whether a district courts evidentiary

rulings violated a defendants constitutional rights. United States v. Bahamonde,

445 F.3d 1225, 1228 n.2 (9th Cir. 2006).

The Court reviews de novo a Sixth Amendment challenge to the dismissal of

a juror during deliberations. See Williams v. Cavazos, 646 F.3d 626, 646 n.16 (9th


7

Cir. 2011), revd on other grounds sub nom. Johnson v. Williams, 133 S. Ct. 1088

(2013).

This Court should review de novo the disposition of a motion to dismiss on

the basis of lack of fair notice on which ruling was deferred and later denied after

trial but before conviction. Review of a motion to dismiss an indictment is

reviewed de novo. United States v. Reveles-Espinoza, 522 F.3d 1044, 1047 (9th Cir.

2008). A challenge to the constitutionality of a statute is reviewed de novo, United

States v. Potter, 630 F.3d 1260, 1260-61 (9th Cir. 2011), as are claims that a criminal

statute is vague, United States v. Guo, 634 F.3d 1119, 1121 (9th Cir. 2011). In United

States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007), which directly addressed a Lanier-

based fair notice challenge, review was de novo.


8

STATEMENT OF THE CASE

A. Procedural History

In November 2013 a grand jury returned a six count indictment against seven

members of the Los Angeles County Sheriffs Department (LASD): Gregory

Thompson, Stephen Leavins, Gerard Smith, Mickey Manzo, James Sexton, Scott

Craig, and Maricela Long. CR 1; ER 2: 601 (redacted version).

Count 1 charged the defendants with conspiracy to corruptly influence,

obstruct, and impede, the due administration of justice from on or about August

18, 2011 to or about October 3, 2011, in violation of 18 U.S.C. 371 and 18 U.S.C.

1503(a). CR 1. Counts 2, 3 and 4 charged obstruction of justice violations under

the omnibus provision of 18 U.S.C. 1503(a). Count 5 charged Craig, and

Count 6 charged Long, with making false statements to the FBI in violation of 18

U.S.C. 1001.

The court granted Sextons request for a severance. Sexton was tried first; a

mistrial occurred when the jury failed to reach a verdict. CR 265, 362, 383. The six

Defendants joined in this appeal were tried after Sextons mistrial. CR 381.

Trial began on May 21, 2014. On June 30, the fifth day of deliberations, two

of the original jurors were excused and replaced with alternates. CR 465. The

following day, the jury found all six defendants guilty of all counts. CR 467.


9

The court sentenced Leavins to 41 months, Thompson 37 months, Craig 33

months, Long 24 months, Manzo 24 months, and Smith 21 months. ER 8: 2358,

2340, 2351, 2335, 2346, 2330.

B. Statement of Facts

1. Background: LASDs Structure and Chain of Command

The LASD, which is the largest sheriffs department in the United States,

employs nearly 18,000 people and has an annual budget of nearly $3 billion. ER 4:

1121-22. It provides police services throughout Los Angeles County and is

responsible for operation of county custody facilities. ER 1123. Sheriff Leroy Baca,

an elected official, was at the top of the chain of command. Undersheriff Paul

Tanaka, who oversaw LASDs day-to-day operations, was next. ER 4: 1122. The

LASD is a quasi-military organization in which [i]ts very important that

the chain of command is followed from the top to the bottom. ER 4: 1123-24.

The people that are in subordinate positions to those above them are expected to

follow all lawful orders. ER 4: 1125.

At the time of the events in question, Gregory Thompson was a lieutenant in

Custody Investigative Services, at the Mens Central Jail (MCJ). Gerard Smith

and Mickey Manzo were deputies assigned to Operation Safe Jails (OSJ), a unit


10

under Thompson that worked to prevent jail violence through intelligence

gathering.2 ER 2: 637.

Stephen Leavins was a lieutenant in the Internal Criminal Investigations

Bureau (ICIB), an LASD department devoted to investigating criminal

misconduct committed by law enforcement employees in the course of their

employment. ER 1431-32. Scott Craig and Maricela Long were sergeants assigned

to ICIB. Long joined ICIB just weeks before the events described in the indictment

(RT 2040); Craig was her training officer (RT 2635).

2. LASD Deputies Discover a Cell Phone in the Property of a High-

Risk Inmate.

In July 2011, FBI agents caused a cell phone to be smuggled into MCJ to

inmate Anthony Brown. Brown had been sentenced to 423 years to life and was

awaiting transfer to state prison. ER 3: 1048-51, 1074.

On August 8, deputies found the phone in Browns property as he was being

transported to a nearby hospital. ER 7: 1890. The FBI agents knew within hours

that the phone had been discovered. They chose not to notify anyone in LASD.

ER 3: 968.

2 The LASD rank structure is: Sheriff, Undersheriff, Assistant Sheriff; Chief, Commander, Captain; Lieutenant, Sergeant, Deputy. ER 4: 1120-25.


11

The LASD discovered that the phone contained pictures of cash and

narcotics. ER 2: 645. The LASD sought subscriber information for the phone, but

the FBI made sure the phone was not traceable. RT 600; ER 3: 1044, 1069.

When Brown returned to MCJ from the hospital a few days later, he

immediately sought benefits in exchange for information he claimed to have about

the widespread smuggling of cell phones and narcotics by staff nurses. ER 7: 1896,

1903. A few days later, Brown again sought out deputies, this time reporting that a

deputy brought him the phone, as well as methamphetamine, cocaine, marijuana

and ecstasy. ER 7: 1898-1900. Brown said that his partner on the street, whom he

identified as CJ, provided the drugs to the deputy. Brown sold the drugs inside

MCJ. Brown provided investigators with a handwritten list of the drugs he

distributed in MCJ, with the cost and selling price. ER 7: 1900. Brown feared that

his life was in danger both from deputies and from inmates, who might suspect he

was cooperating. ER 7: 1900-01.

Lt. Thompson directed Deputies Smith and Manzo to assist in the

investigation. ER 2: 644; ER 7: 1902. Smith promptly obtained various jail records

and reported what he learned to his superiors. ER 7: 1904, 1909-12, 1917-18.

On August 17, Smith recovered two recorded calls Brown made from a jail

phone in July. In one call, an unidentified woman told Brown he should have his


12

contact call her so that you can get your shit before you go. ER 7: 1919. In the

other call, the same woman told Brown he would have his phone soon. ER 7:

1921. OSJ Deputy Noah Kirk listened to the second call and told Smith he thought

they had a corrupt employee. ER 5: 1406-09.

The following day, Thursday August 18, Kirk contacted the analyst on the

FBI-LASD joint task force to which he was assigned and learned that the number

Brown called from the jail phone belonged to the FBI Civil Rights Division. ER 7:

1924. Thompson notified one of the investigators that Brown was going to be

shipped to CDC on the next available bus. ER 7: 1923. In the interim, he was to

be housed in 1750, a high security area, and was to have no phones, no visits,

especially from outside LE [law enforcement] without Thompsons approval. Id.

On Friday August 19, Thompson directed Smith and Manzo to interview

Brown before he was sent to state prison. Brown told them he was smuggling in

cell phones, methamphetamine, cocaine and marijuana from CJ through a

deputy. ER 3: 1070; ER 7: 1927-29. Smith confronted Brown with the recorded

calls to the unidentified woman. ER 7: 1929-31. In response, Brown suggested

LASD might want to clean its own backyard rather than letting the Feds clean

it. ER 7: 1938. Smith pressed Brown for further information, telling him [t]his

is my house . . . [s]omeones already here. I want to know how long theyve been


13

here. Id. at 1939. Brown said he would only provide further information if he

received certain benefits. This was beyond Smiths authority, but he said he would

report Browns requests to his superiors. ER 7: 1946, 1949-50.

3. The Sheriff Learns of the Contraband Phone and Issues Marching

Orders.

The unfolding events led the Sheriff to hold a special briefing at LASD

headquarters on Saturday, August 20. ER 4: 1290. Sheriff Baca, Undersheriff

Tanaka and various Captains and Lieutenants attended, including ICIB Cpt.

William (Tom) Carey, Lt. Thompson, and Lt. Leavins. ER 4: 1134-35; ER 5:

1438. Thompson directed Deputies Smith and Manzo to attend. ER 2: 644. Baca

told the attendees that FBI Assistant Director in Charge Steve Martinez had called

him a day or two earlier. According to the Sheriff, Martinez had said that a cell

phone found in MCJ belonged to the FBI and had asked that the phone be

returned.3 ER 4: 1292. The Sheriff told Martinez he was angry that the FBI had

smuggled the phone into MCJ. ER 4: 1237.

3 Martinez also expressed concern for Browns safety, given that he would remain in LASD custody. ER 4: 1234-35. LASD officials and the FBI agreed that Brown faced harm from deputies if it became known he was cooperating against deputies, and from inmates for being an informant, even if he was informing against officers. ER 3: 1024-25; ER 4: 1137-38, 1300.


14

The Sheriff gave two sets of orders. First, the Sheriff directed that Brown

remain in LASD custody until the criminal investigation was complete, that Brown

be isolated, and that no one be allowed access to him without approval of the

Undersheriff. ER 4: 1292-93, 1308-09. The isolation order was to protect Brown

from the serious risk of harm he faced from deputies and inmates, and to insure the

integrity of LASDs investigation. ER 4: 1137, 1152, 1305; ER 5: 1460. Second, he

ordered ICIB to conduct a criminal investigation to get to the bottom of of

the smuggled contraband cell phone. ER 4: 1292; ER 5: 1439. Carey chose Craig to

conduct the investigation regarding the cell phone and the FBI agents who were

responsible for inserting it into MCJ. RT 2635-36.

The Sheriffs orders were carried out in parallel.

4. The First Set of Orders: Keep Anthony Brown Safe

a) Brown is allowed out of his cell due to a breach in security,

and additional safeguards are ordered.

Despite the Sheriffs directive that Brown not be allowed visits without

authorization, deputies allowed him out on August 23 for a visit with three FBI

agents. ER 3: 969-70. An LASD officer terminated the interview when it was

discovered that the visit had not been authorized. Id. The officer told the agents

that Brown could not be interviewed by any law enforcement personnel. ER 2: 729.


15

The agents were asked to wait to speak with Carey, who was already en route. They

left before Carey arrived.4

Concerned about Browns safety, and after seeking approval from their

superiors, Carey and Leavins directed that deputies be assigned to guard Brown

around the clock, and that he be moved from MCJ to the San Dimas station jail.5

ER 4: 1152, 1304-06, 1374; ER 5: 1459-67. The move also allowed ICIB

investigators to interview Brown without arousing the suspicion of other inmates or

deputies. ER 4: 1374; ER 5: 1465-67. Carey advised Baca and Tanaka that Brown

was going to be held under a different name to protect him by ensuring that no one

knew where he was housed, and that no one, including deputies, would be able to

locate him through the electronic records system. ER 2: 825; ER 4: 1154, 1307-08;

ER 5: 1467.

4 FBI Special Agent Dahle testified that he and the other agents left before Carey arrived because even if [he] would have showed up, theres Federal Grand Jury prohibitions on giving people information pertaining to a Federal Grand Jury information. ER 2: 666, 692, 733.

5 The transfer to San Dimas was supposed to occur on August 23, but had to be delayed until Brown was approved for self-medication. ER 2: 837; ER 7: 2006, 2014. In the interim he was held in a secure medical unit in 8200. ER 7: 2005.


16

On August 24, Smith and Manzo met with other OSJ deputies assigned to

guard Brown. Smith or Manzo told the deputies no one could see or visit Brown

without authorization, including the FBI or any other law enforcement personnel.

ER 2: 815-16, 849. Deputies were told that a cell phone belonging to the FBI was

found and they needed to investigate. ER 2: 817-18.

Smith sent an email later that day to the OSJ deputies assigned to watch

Brown, who he referred to as the inmate we are tasked with protecting, stating

that he was in charge of security and scheduling. ER 7: 2011. Smith wrote that

there was to be no movement of Brown, except for medical reasons, without the

presence of Tanaka, Carey, Leavins, Thompson, Manzo, or himself. Id.

Smith gave the deputies a calendar book that he referred to as the CYA

book. ER 7: 2014. The deputies were to document everything [they]. . . did

regarding Anthony Brown in the CYA book; in the event that anyone had

questions, they would be covered. ER 2: 820; see also ER 2: 783-85, 796-97.

The San Dimas transfer occurred on August 25. ER 4: 1374. Electronic

records showed that Brown had been released to OTHR, which meant he was still

in government custody.6 RT 2817-18. Gus Academia, a 30-year LASD employee,

6 On August 26, FBI Special Agent Leah Marx accessed the LASDs website inmate locator system and saw that Brown had been released to OTHR on


17

released Brown from the system at the request of a lieutenant, after being told it

was ordered by Undersheriff Tanaka. RT 1204. The lieutenant went to Academia

after Tara Adams, who had been at the Inmate Reception Center (IRC) for 8

months, refused to do the release without a written order. RT 1148, 1171. Browns

booking records jacket was also removed from the IRC files, a common procedure

when hiding an informant, and delivered to Thompsons office.7 ER 7: 2019;

RT 1200. Brown had been rebooked under a different nameJohn Rodriguez

before he left MCJ, and he was rebooked again as Kevin King when he arrived at

San Dimas. ER 7: 2024. Deputies did not Live Scan (electronically fingerprint)

Brown when rebooking him because it would have allowed his location to be

determined electronically by anyone with access to LASDs system.8 ER 2: 827,

837. The CYA book showed Browns aliases and booking numbers. ER 7: 2014.

August 25, 2011. ER 3: 977-80; ER 7: 2031. She thought it was incredibly odd that he was shown as released, but she did not call anyone or make any further effort to find out his location. ER 3: 1075-76.

7 Browns booking jacket was produced to federal agents in early September in response to a grand jury subpoena. RT 3074-75.

8 It was not uncommon for a cooperating witness to be held under an alias, and shown as having been released. RT 2817-22. Det. Lillienfeld, a 30 year LASD and homicide investigator, had an informant being held under an alias at San Dimas at the same time as Brown. RT 2819-20. Lillienfeld also explained that the


18

On August 25, Thompson sent an email to MCJ officers advising that,

[e]ffective immediately, all FBI requests for inmate interviews will be approved by

MCJ Liaison, adding that [o]nce approved the inmate will be transported to

MCJ and made available to the FBI. ER 7: 2010; ER 2: 667.9

b) A federal writ is obtained for Brown.

As the FBI agents August 23 interview was being terminated, they told

Brown that they would try to get you out of here. ER 3: 969-70. They contacted

the U.S. Attorneys Office (USAO) after leaving MCJ and began the process of

applying for a writ for Brown to be turned over to federal custody. ER 3: 982. On

August 25, the USAO secured a grand jury subpoena for Brown to appear on

September 7. ER 2: 771; ER 7: 2032.

Writs for LASD inmates are served on the IRC and processed through the

warrants and detainers section. ER 2: 788. The U.S. Marshal Service (USMS)

is responsible for serving the writs. ER 2: 603; ER 3: 768-69.

inmates paper file would be placed in the Watch Commanders safe so it would not be accessible without authorization. RT 2813-14.

9 The LASD already had a policy in place that required identification and that records be kept of all law enforcement visits, but the policy had not been strictly enforced. ER 4: 1139-40, 1143.


19

Yolanda Baines, a USMS employee, received the writ for Brown. ER 2: 770.

Her normal process, which she followed in this case, was to call the facility to

make sure the inmate is good to go, to make sure the inmate is even housed

there, and then serve that writ. ER 2: 769-70, 773, 780. Baines had two

conversations with LASD: One phone call was they didnt know his

whereabouts, they couldnt find him, and the other phone call was that she would

have to speak to her supervisor, see if he was medically cleared. ER 2: 773.

On August 26, Baines emailed Assistant United States Attorney Lawrence

Middleton twice, and asked him to call her regarding Brown. ER 7: 2033, 2034.

She wanted to tell Middleton what LASD had told her. ER 2: 781. Although

Baines testified that she served the writ, she could not recall how (i.e., by email or

fax). There were two fax transmissions between the USMS on August 25, the day

before Baines contacted Middleton, but there was no record of what was sent or

received. ER 2: 774-76. There was no record of IRC ever receiving a writ for

Brown. ER 2: 767C-767E.10

10 Jason Pearson, one of the OSJ deputies assigned to guard Brown, testified that sometime near the end of the period between August 21 and September 12, he learned about a writ for Brown. ER 2: 789, 808.


20

As of August 26, Cpts. Carey and Ornelas and Lt. Thompson were

discussing how a writ for Brown should be handled if one were received. As a

result of that conversation, Ornelas sent an email to all MCJ lieutenants and

sergeants on August 26 with a subject line of Court Order presented By Federal

Officers. ER 7: 2038; see also ER 7: 2035, 2037. The email instructed that if

anyone was presented with a removal or court order by a federal law enforcement

agency, they were to [r]eceive the order and advise the federal officer that before

you can proceed, you have to submit the order to the Departments legal advisor

for review. ER 7: 2038. They were not to release the inmate or allow contact

prior to doing so. Id.

c) After meeting with the Sheriff, the U.S. Attorneys Office

tells the U.S. Marshal not to act on the writ.

On August 29, Sheriff Baca, Undersheriff Tanaka, Captain Carey and

attorney Michael Genacco of the Office of Independent Review, among others, met

with U.S. Attorney Andr Birotte and others from his office, including AUSA

Middleton. ER 4: 1155-56, 1252-56, 1309. The Sheriff was upset with the actions

of the FBI, which he felt was incompetent to have introduced a cell phone into

MCJ. ER 4: 1160, 1261, 1310. He believed the FBI had violated the law by

smuggling the phone and/or drugs into MCJ and swore he would investigate the


21

FBIs actions. ER 4: 1160-62, 1263; ER 5: 1492-93. The U.S. Attorney did not

object. ER 4: 1161; ER 5: 1494. There was no mention of any subpoena, and no one

asked for Brown. ER 4: 1161-62. After the meeting, Middleton told the USMS

not to pursue getting Anthony Brown over until further notice. ER 4: 1270.

d) Brown is released to state prison.

On September 2, Brown became upset because another informant got fast

food while he did not. Brown took whatever food was in his cell, threw it on the

windows, and threw a huge temper tantrum. ER 5: 1413-14. He was moved

back to MCJ and rebooked as Chris Johnson. ER 3: 987-88; ER 5: 1417; ER 7:

2029; see also ER 7: 2045. He was again housed in 8200, and continued to be

guarded by two OSJ deputies. ER 5: 1419-20; ER 7: 2039. OSJ Deputy Haley

asked in an email if Brown could be moved out of MCJ to another station jail

because of the problems in having him so close to the firei.e., which he

explained meant where the original incident occurred. ER 7: 2045; ER 5: 1421-23.

Smith conducted a brief tape-recorded interview of Brown and asked if he wanted

to continue to cooperate. ER 7: 2002. Brown wrote a letter to Leavins and others

dated September 3 in which he asked to be returned to the station jail. Brown said

he would not cooperate with the FBI and offered to work for LASD in return for


22

special privileges. ER 7: 2040-44; ER 3: 1093. He was released to state prison on

September 12. ER 3: 989-90; ER 5: 1419; ER 7: 2046, 2047.

5. The Second Set of Orders: Get to the Bottom of How and Why

the Smuggled Contraband Came into the Jail

The Sheriff tasked ICIB with performing a criminal investigation with two

main purposes: identifying criminal or corrupt behavior on the part of LASD

employees,11 and identifying potential criminal behavior on the part of the FBI

agent or agents who smuggled contrabandat least cell phones, and maybe

drugsinto MCJ.

a) ICIB investigators interview Anthony Brown.

After the Sheriffs August 20 meeting, ICIB investigators interviewed Brown

several times. Leavins interviewed him on August 21, 23, and 24. ER 7: 1951, 1969,

1978, 1995. Carey participated in the August 23 interview. ER 4: 1298; ER 7: 1978.

Craig and Long participated in the August 24 and 26 interviews. Id. Smith and

Manzo escorted Brown to and attended the August 21, 23 and 24 interviews.

11 ICIB had concurrent jurisdiction with the FBI to investigate both jail assaults and employee corruption.11 ER 2: 713, 716; ER 4: 1216-17.


23

On August 21, Brown repeated his story that that his people would meet

and pay deputies who brought Brown drugs, cell phones [and] cigarettes. ER 7:

1954. He said there were a bunch of names involved. ER 7: 1953. Brown

claimed that the smuggling of cell phones extended back to 2009. ER 7: 1954-55.

He claimed that the FBI had been involved since around that time. ER 7: 1958-59.

Brown identified the deputy who brought him the most recent phone as Gilbert

Michel. ER 7: at 1954. Brown subsequently told ICIB investigators that every time

a deputy met with CJ, his undercover FBI contact, the deputy brought narcotics

into the jail. ER 2: 717; ER 4: 1301-02.12

Leavins and Carey interviewed Brown at MCJ on August 23, just after the

early termination of the FBI interview. ER 7: 1978. The ICIB investigators acted

as if they did not know the FBI had visited Brown. ER 7: 1979. Brown told them

that there had never been any discussion of him testifying for the FBI. ER 7: 1981.

Brown expressed concern for his safety and was assured that he would be

protected. Leavins explained that Brown would be moved to a station jail so that he

12 The FBI did not know Brown was telling ICIB investigators that he had smuggled drugs into MCJ and distributed them to inmates, nor did they know Brown was reporting that the drugs were paid for by his FBI contact. ER 3: 1070-71.


24

would no longer be in a facility with deputies he was accusing of wrongdoing. ER 2:

723, 765; ER 7: 1987-90.

During the August 26 interview, Brown mentioned that he had not seen the

FBI agents since their interview was ended on August 23. ER 7: 1999 (Ex. 24 at 1).

He said that the last thing FBI agents told him was that they were going to get him

out of county custody. ER 7: 2000. Long responded, [T]hats what they said?

Id. Brown also said the FBI agents promised to put money on his books. Long told

him, [T]hey havent come back for you. Id.

b) ICIB investigators interview corrupt deputy Gilbert Michel.

On August 30, the day after the Sheriffs meeting at the USAO, Leavins,

Craig, and Long interviewed Michel. ER 3: 873-74; ER 7: 2057.

At trial, Michel described Craigs demeanor during the interview as kind of

lackadaisical and said Craig made it real light hearted. RT 1387. At Craigs

prompting, Michel admitted that Brown had offered him money to permit Brown

to make a call from Michels personal cell phone. ER 7: 2058-59. Thereafter,

Brown put him in contact with CJ, who paid Michel to provide a cell phone to

Brown. ER 7: 2063. Brown was supposed to use this phone to do all of his

transactions. Id. Michel did not know for sure but assumed this meant drug

transactions. ER 7: 2063-64.


25

Michel admitted that CJ paid him a total of $1500. ER 7: 2064. But, he lied

to ICIB investigators throughout the interview, claiming for example that he met

with CJ and let Brown use his phone because he was conducting his own

undercover investigation into MCJ drug smuggling. RT 1460, 3296.

During the interview, Michel relayed that FBI agents had visited him at

home and confronted him with a videotape of him meeting with CJ. They said

this could go down two ways, Ill either just lose my job or I will lose my job and

go to prison. ER 7: 2079. The agents were interested in brutality inside the jail

and asked him whether he had been involved in or witnessed the use of excessive

force. ER 7: 2071-72. They also wanted Michel to actively work as a cooperator.

ER 7: 2073. Michel said that the agents had accused him of lying to them, and told

him that was a crime. ER 7: 2074.

Leavins asked Michel what transpired to lead you to be sitting here today?

ER 7: 2076. Michel replied that the FBI wanted information and were possibly

manipulating him. ER 7: 2077. Craig added I would say they were trying to

manipulate you, wouldnt you? Id. Later, Leavins reiterated the suggestion of

manipulation. ER 7: 2079.

Michel relayed that the FBI instructed him not to tell LASD about their

contact. ER 7: 2077-78. When Michel reiterated that the FBI had threatened him


26

with the loss of his job or the loss of his job and jail, Craig responded, So they

threatened you? ER 7: 2079. Michel agreed: the agents had told him he would be

going to prison for taking a cell phone into a facility and for lying to them. ER 7:

2079-80.

Toward the end of the interview, Craig told Michel, Im ordering you not

to discuss this with anyone else period. He added, Thats your girlfriend, thats

the FBI, thats anyone, okay? ER 7: 2083. He said, You can discuss this with

your attorney obviously. Id.

The following exchange occurred:

Craig: Because, theyre screwing with you. I mean, it pisses

me off because again, sorry were all part of this

Department and were all one big happy

dysfunctional family, and the fuckin FBI is gonna

. . . invade the sanctity of your home and . . . talk a

gang load of shit to you and threaten you.

Michel: Yes, sir.

Craig: My blood pressure is a little up over that.

ER 2084. After a break, Craig made additional similar remarks, including calling

the FBIs threats bullshit. ER 7: 2085-87.

After the interview, Leavins briefed Undersheriff Tanaka, who was at MCJ

during Michels interview. ER 4: 1188. Michel was relieved of duty as a deputy


27

but not terminated. ER 3: 886-87. Michel claimed that after his ICIB interview he

started to feel that perhaps he had been blackmailed by the FBI. ER 3: 880.

On September 13, 2011, Craig and Long conducted a second recorded

interview of Michel, during which he finally admitted that he and other deputies

used excessive force on inmates. ER 3: 890-892. Craig told Michel that he could

either resign or eventually be fired. ER 3: 891. Michel resigned. Id. He

subsequently pleaded guilty to bribery and cooperated with the government. Id.

c) ICIB investigators interview LASD deputy William

Courson.

As part of the ICIB investigation, Craig and Long also interviewed William

Courson, an LASD deputy who had sought a romantic relationship with FBI

Special Agent Marx, who Brown had said was one of his FBI contacts. ER 3: 941-

42. Marx had pretended to be Coursons friend to obtain information and

surreptitiously recorded their meetings. ER 3: 943; ER 7: 2049. During Coursons

interview, Craig asked whether he thought maybe youve been played a little

bit? Courson agreed.13 ER 7: 2051. Courson said that Marx had told him she was

13 During the interview, Courson denied witnessing illegal conduct, including deputy or employee brutality. At trial, he admitted having seen deputies using excessive force. ER 3: 938; ER 7: 2053.


28

investigating human trafficking. Long responded, Oh, thats what she

mentioned? ER 7: 2051. Leavins said, Is that what she told you? ER 7: 2052.

Courson said, Yes, sir. So Im assuming that was told wrong? Craig said,

Well, we dont know, but that would be my guess, that she lied to you yes . . . .

Id.

Toward the end of the interview, Leavins instructed Courson to contact

Craig if he were contacted by the FBI. ER 7: 2055. Craig added that Courson

should inform Craig right away if he received a subpoena or if anyone tried to bully,

intimidate, or blackmail him. Id.

d) ICIB tries to obtain information about the FBIs investigation

into the L.A. County jails.

On September 8, 2011, Craig applied for a court order directing the FBI to

turn over records pertaining to any and all investigations . . . occurring within the

confines of the Los Angeles County Jail system, from August 5, 2009 to present.

ER 7: 2100-01. Both Undersheriff Tanaka and Captain Carey were aware that

Craig was seeking the order. ER 4: 1193-97, 1315. Superior Court Judge John

Torribio denied the request, writing that the court had no jurisdiction over any

federal agency. ER 7: 2100. Judge Torribio told Craig that the State of California

lacked jurisdiction over the federal government, so that if he issued the order, it


29

would have no force and effect. RT 2536. He had no further discussions with

Craig. He did not tell Craig he should not or could not proceed with the

investigation for any reason. RT 2537. When Carey learned the order had been

denied, he did not halt the investigation. ER 4: 1321.

ICIB investigators also attempted to investigate the FBI agents they believed

to have inserted the phone. With the approval of their superiors, ICIB

investigators arranged for limited surveillance to be conducted of Special Agents

Marx and David Lam. ER 4: 1357-58; ER 6: 1723. Undersheriff Tanaka approved

the surveillance, ER 5: 1511-12, and understood its goal: to make contact with

Marx, RT 2238-40.

Craig called Marx on September 9, 2011 at the number Brown had given him.

ER 7: 2103. He left a voicemail in which he identified himself as an ICIB sergeant

and said he was investigating a felony complaint naming Marx as a suspect. He

offered her a professional courtesy to meet and discuss the allegations against

her and left his call-back number. ER 7: 2103. Carey was aware that Craig had

called Marx and left the voicemail and may have directed him to do so. ER 4: 1348;

RT 2616. Because Brown had given Craig an incorrect number for Marx, she never

received the message. ER 3: 1695-96.


30

On the morning of September 26, 2011, Sheriff Baca met with Tanaka,

Carey, and Leavins. ER 4: 1329; ER 5: 1516. Baca instructed that ICIB

investigators should approach Marx at her residence. Id. Leavins directed Craig

and Long to make contact with Marx. He told them to identify themselves as law

enforcement and make video and audio recordings of the contact. ER 5: 1516-17.

Craig understood the goal of the encounter to be finding out what the FBI had

learned in its investigation. He hoped to convince Marx to talk to him because he

wanted to identify deputies known to have engaged in criminal conduct. ER 6:

1714.

Later that afternoon, Craig and Long approached agent Marx outside her

home. She recognized them as LASD employees. ER 3: 1000. After Marx

declined to talk to them, Craig asked, [Y]ou know that youre a named suspect in

a felony complaint? Did you get that message? ER 7: 2105. Marx said no. Craig

said okay, what Im going to do, so you know, is, Im in the process of swearing

out a declaration for an arrest warrant for you, would you like us to go through,

who? ER 7: 2105. Marx told him to contact the assistant director in charge of the

FBI. Craig said what were going to do is arrange for your arrest, when were

ready to do that is we can either do this . . . . Marx cut him off and told him to


31

contact the FBI office. Craig and Long gave Marx their business cards and left. ER

7: 2105. The entire interaction was recorded and lasted less than two minutes.

Craig and Long reported the encounter up the chain of command. Leavins

told Carey about it. ER 4: 1333. Leavins testified that Craig and Longs encounter

with Marx was consistent with the orders [he] received from the Sheriff. ER 5:

1518. Tanaka opined that LASD was entitled to interview Marx during the course

of its investigation. ER 4: 1220.

After encountering Craig and Long, Marx promptly called her supervisor,

Carlos Narro. ER 3: 1003. Narro called Long and relayed that Marx indicated to

me that you guys indicated to her that theres going to be a warrant for her arrest.

Long said, Theres going to be. Narro asked whether the Sheriff knew and Long

said he did. ER 7: 2107. When Narro asked when the warrant would issue, Long

replied, It could be tomorrow, sir. Youre going to have to talk to the

Undersheriff. ER 7: 2108. She provided Tanakas phone number. After hanging

up, but while still being recorded, Long told Craig, Theyre scared; theyre like,

do you know when, is the warrant Several people laughed. ER 7: 2108.

The next day, September 27, a second meeting occurred between Sheriff

Baca, U.S. Attorney Birotte, and FBI Assistant Director Martinez. ER 4: 1239.

After this meeting, ICIB made no further approaches to FBI agents.


32

e) ICIB ceases its investigation after learning that the D.A.s

office would not bring charges related to the smuggled cell

phone.

On October 3, 2011, Sergio Gonzalez, the Bureau Director for the Los

Angeles County District Attorneys Office, had a discussion with Craig and other

ICIB members regarding whether charges could be brought against Brown. ER 6:

1671-74; RT 2282, 2294-96. Gonzalez told Craig that the D.A. probably could

bring charges against the inmate unless Brown worked for the FBI. Then, the D.A.

probably would be precluded from filing against him or would choose not to file

against him, because of the Supremacy Clause. RT 2288-89, 2296.14 Gonzalez

did not have a further discussion with Craig regarding the Michel investigation or

the witnesses who were interviewed. RT 2305. Rather, they discussed

investigating the Michel case to find out the truth as to who was involved and

what everybody was doing, and whether it was legitimate. RT 2307. ICIB did

not further investigate FBI agents for possible violations of state law after this date.

ER 6: 1688; RT 2343-44.

14 This interpretation was legally incorrect, because the Supremacy Clause does not preclude the filing of charges against a federal agent by a state authority. See infra at Section I.B.


33

SUMMARY OF ARGUMENT

Defendants were denied a fair trial because of multiple instructional and

evidentiary errors that were of constitutional dimension, and which individually

and collectively require reversal.

First, the court committed a series of instructional errors as to Defendants

authorization and good faith defenses: (a) The court refused to instruct the jury

that for a conviction on the obstruction of justice and conspiracy charges the

government was required to prove either that Defendants acts were not authorized

by their superiors, or that it was not reasonable for Defendants to believe the orders

were lawful; (b) The court altered the parties proposed good faith instruction, so

that good faith was not a complete defense and was instead only one factor to

consider in determining Defendants intent; (c) The court erroneously advised the

jury that if the FBI directed contraband to be smuggled into the jail, there would no

violation of state law, and thus local officers could not investigate the introduction

of the contraband. In doing so, the court essentially directed a verdict for the

government, as it meant that Defendants could not have reasonably believed the

orders to investigate were lawful; and (d) The court gave a dual purpose instruction

that permitted conviction even if the jury found the Defendants acted in good faith.


34

Second, throughout its case the government pressed the legally erroneous

theory that Defendants corruptly sought to obstruct an FBI investigation, when the

prosecution was required to show that Defendants corruptly sought to obstruct a

grand jury proceeding. In United States v. Aguilar, 515 U.S. 593 (1995), the

Supreme Court held that a conviction under 18 U.S.C. 1503 requires both that

the defendant had the specific intent to obstruct a judicial proceeding, and that

he knew his conduct had the natural and probable effect of influencing such a

proceeding. Id. at 599, 601. The government nonetheless pressed its invalid theory

in this case, and the court declined to give a jury instruction that would have

protected against conviction on that theory. The court also erred by instructing the

jury that Defendants must have intended to obstruct the federal grand jury

investigation, which the government equated with the FBIs investigation,

thereby facilitating its presentation of an invalid theory. Finally, the court 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; instead, the

court instructed merely that Defendants conduct had to have such an effect.

Third, the court excluded the testimony of Paul Yoshinaga, LASDs Chief

Legal Advisor. Yoshinagas testimony that Leavins sought his advice during the

relevant time period would have been compelling evidence in support of Leavinss


35

contention that he acted in good faith. By extension, the testimony would likewise

have shown both that other Defendants acted in good faith and that their belief in

the lawfulness of their actions was reasonable.

Fourth, the court made numerous erroneous evidentiary rulings. Among

other errors, the court improperly: (a) excluded evidence rebutting the

prosecutions contention that Brown could have been safely held at MCJ;

(b) admitted irrelevant and highly prejudicial evidence about specific instances of

inmate abuse that did not involve Defendants in any way; (c) limited the cross-

examination of the one witness who provided the scant evidence that LASD

deputies knew about the writ for Anthony Brown; (d) permitted a prosecution

witness to testify that LASD lacked jurisdiction to investigate the FBI while

precluding cross-examination on that subject; (e) refused to permit defense counsel

to question the AUSA supervising the prosecution team as an adverse witness; and

(f) excluded evidence about Sheriff Bacas beliefs about the FBIs commission of a

crime, and his detailed instructions to ICIB in late September, which were highly

relevant to Defendants mens rea. Each of these errors requires reversal.

Combined, they denied Defendants their Sixth Amendment right to present a

complete defense.


36

Fifth, the court erred in dismissing Juror Five on the fifth day of

deliberations. The courts questioning of Juror Five revealed at least a reasonable

possibility that her difficulties stemmed from disagreements with another juror

(or jurors) about the merits of the case, thus dismissing Juror Five violated

Defendants Sixth Amendment right to a jury trial.

Sixth, the court erred in denying Def

thompson, et al, 9th circuit appeals brief 7-24-2015

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