5-20-16 -- Joint Reply Six LASD Defendants -- Appeal

Selected docket entries for case 14−50440

Generated: 05/20/2016 18:05:12

Filed Document Description Page Docket Text

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)

(1 of 97)

https://ecf.ca9.uscourts.gov/docs1/009128062171

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)



MARICELA LONG, Defendant-Appellant.

Case No. 14-50441




GREGORY THOMPSON, Defendant-Appellant.

Case No. 14-50442




MICKEY MANZO, Defendant-Appellant.

Case No. 14-50446




SCOTT CRAIG, Defendant-Appellant.

Case No. 14-50449


UNITED STATES OF AMERICA, Plaintiff-Appellee,

v. STEPHEN LEAVINS, Defendant-Appellant.

Case No. 14-50455


________________________________

Joint Reply Brief of Defendants-Appellants ________________________________

Case: 14-50440, 05/20/2016, ID: 9986030, DktEntry: 92, Page 1 of 96(2 of 97)

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


iv

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


v

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


vi

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


vii

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


1

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.


2

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


3

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-


4

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


5

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


6

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).


7

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.


8

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


9

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).


10

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.


11

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


13

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


14

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).


15

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.


16

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 --


17

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


18

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


19

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.


20

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


21

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


22

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);


23

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


24

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.


25

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.


26

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).


27

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


28

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.


29

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


30

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


31

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


32

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.”


33

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.


34

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.


35

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-


36

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


37

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


38

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.


39

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


40

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).


41

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


42

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


43

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).


44

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;


45

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


46

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.


47

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


48

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


49

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.”).


50

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


51

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


52

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


53

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


54

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).


55

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


56

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.


57

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.


58

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.


59

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


60

(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.


61

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.


68

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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“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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“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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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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“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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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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“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.


84


“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).


85


“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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“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


5-20-16 -- Joint Reply Six LASD Defendants -- Appeal

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