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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, v.
GERARD SMITH, Defendant-Appellant.
Case No. 14-50440
D.C. No. 2:13-cr-00819-PA-3 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. MARICELA LONG, Defendant-Appellant.
Case No. 14-50441
D.C. No. 2:13-cr-00819-PA-7 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. GREGORY THOMPSON,
Defendant-Appellant.
Case No. 14-50442
D.C. No. 2:13-cr-00819-PA-1 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. MICKEY MANZO,
Defendant-Appellant.
Case No. 14-50446
D.C. No. 2:13-cr-00819-PA-4 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. SCOTT CRAIG,
Defendant-Appellant.
Case No. 14-50449
D.C. No. 2:13-cr-00819-PA-6 (C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA, Plaintiff-Appellee,
v. STEPHEN LEAVINS, Defendant-Appellant.
Case No. 14-50455
D.C. No. 2:13-cr-00819-PA-2 (C.D. Cal., Los Angeles)
________________________________
Joint Opening Brief of Defendants-Appellants
________________________________
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HILARY POTASHNER Acting Federal Public Defender GAIL IVENS
ELIZABETH RICHARDSON-ROYER Deputy Federal Public Defenders 321 East
2nd Street Los Angeles, CA 90012-4202 Telephone 213-894-5092
Attorneys for Maricela Long
WILLIAM J. GENEGO Law Office of William Genego 2115 Main Street
Santa Monica, California 90405 Telephone: 310-399-3259 Attorney for
Gerard Smith
KEVIN BARRY MCDERMOTT 8001 Irvine Center Drive, Suite 1420
Irvine, California 92618 Telephone: 949-596-0102
Attorney for Gregory Thompson
MATTHEW J. LOMBARD Law Offices of Matthew J. Lombard 2115 Main
Street Santa Monica, California 90405 Telephone: 310-399-3259
Attorney for Mickey Manzo
KAREN L. LANDAU Law Offices of Karen L. Landau 2626 Harrison
Street Oakland, CA 94612 Telephone: 510-839-9230 Attorney for Scott
Craig
TODD W. BURNS Burns & Cohan, Attorneys at Law 1350 Columbia
Street, Suite 600 San Diego, California 92101 Telephone:
619-236-0244 Attorneys for Stephen Leavins
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TABLE OF CONTENTS
INTRODUCTION
....................................................................................................
1JURISDICTIONAL STATEMENT AND BAIL
STATUS.................................... 3ISSUES PRESENTED
..............................................................................................
4STANDARDS OF
REVIEW.....................................................................................
6STATEMENT OF THE CASE
................................................................................
8
A. Procedural History
..................................................................................
8B. Statement of Facts
...................................................................................
9
1. Background: LASDs Structure and Chain of Command
................ 92. LASD Deputies Discover a Cell Phone in the
Property of a
High-Risk Inmate.
...........................................................................
103. The Sheriff Learns of the Contraband Phone and Issues
Marching Orders.
............................................................................
134. The First Set of Orders: Keep Anthony Brown Safe
...................... 14
a) Brown is allowed out of his cell due to a breach in security,
and additional safeguards are ordered.
........................................ 14
b) A federal writ is obtained for
Brown............................................ 18c) After
meeting with the Sheriff, the U.S. Attorneys Office
tells the U.S. Marshal not to act on the writ.
............................... 20d) Brown is released to state
prison. ................................................ 21
5. The Second Set of Orders: Get to the Bottom of How and Why
the Smuggled Contraband Came into the Jail ........................
22
a) ICIB investigators interview Anthony Brown.
............................ 22b) ICIB investigators interview
corrupt deputy Gilbert Michel. ..... 24c) ICIB investigators
interview LASD deputy William Courson. ... 27
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d) ICIB tries to obtain information about the FBIs investigation
into the L.A. County jails. ......................................
28
e) ICIB ceases its investigation after learning that the D.A.s
office would not bring charges related to the smuggled cell phone.
..........................................................................................
32
SUMMARY OF ARGUMENT
..............................................................................
33ARGUMENT
..........................................................................................................
38I. The Instructional Errors Denied Defendants The Right to Have
the Jury
Consider Their Mens Rea Defenses of Authorization and Good
Faith. ....... 38A. The Court Erred In Denying an Authorization
Instruction and In
Giving an Erroneous Good Faith Instruction.
....................................... 391. It Was Error to Deny
an Authorization Instruction. ....................... 392. The
Courts Altered Good Faith Instruction Was Incorrect. ........
46
B. Reversal Is Separately Required Because the Courts
Instructions Erroneously Advised the Jury that Local Officers Could
Not Investigate the Introduction of Contraband into MCJ.
......................... 50
C. The Improper Dual Purpose Instruction Further Undermined the
Defendants Right to Have the Jury Consider Their Mens Rea Defense.
.................................................................................................
55
II. The Jury Instructions Allowed Conviction on an Invalid Legal
Theory. ...... 57A. Introduction
...........................................................................................
57B. The Governments Five Categories of Obstructive Conduct
.......... 58
1. Category 1 Tightening LASDs Inmate Visiting Rules
................ 582. Category 2 Hiding Brown from the FBI, U.S.
Marshal, and
Grand Jury
.......................................................................................
603. Category 3 Witness Tampering
.................................................... 614. Category
4 Investigating the FBI
.................................................. 62
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5. Category 5 Threatening to Arrest Agent Marx
............................ 64C. The Obstruction Counts of
Conviction Should Be Vacated Because
the Government Pressed an Invalid Theory.
........................................ 64D. The Court Erred in
Denying Defendants Requested Instructions
that the Government Must Show that They Intended to Obstruct a
Grand Jury Proceeding, Not Just an FBI Investigation.
........................ 661. Section 1503s Mens Rea
................................................................
662. The Court Relied on an Erroneous Basis in Declining the
Proposed Instructions.
....................................................................
68E. The Court Erred in Instructing the Jury that It Could Convict
If
It Found that Defendants Intended to Investigate a Grand Jury
Investigation, Rather than a Grand Jury Proceeding.
.................. 72
F. The Court Erred in Failing to Instruct the Jury that
Defendants Had to Know Their Conduct Was Likely to Influence a
Grand Jury Proceeding.
............................................................................................
76
III. The Court Erred in Precluding the Testimony of a Key
Defense Witness.
.........................................................................................................
77
A. Introduction
...........................................................................................
77B. Relevant Background
.............................................................................
79
1. Key Background Facts
....................................................................
792. Leavinss Testimony Related to Paul Yoshinaga
............................ 813. Yoshinagas Proffered Testimony
.................................................. 83
C. The District Court Erred by Precluding Yoshinagas Testimony,
and in Doing So Infringed Leavinss Constitutional Right to Present
a Defense.
..............................................................................................
861. Yoshinagas Testimony Was Relevant.
.......................................... 862. Yoshinagas
Testimony Was Not Excludable Under Rule 403. ..... 90
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3. Precluding Yoshinagas Testimony Infringed Leavinss
Constitutional Right to Present a Defense.
..................................... 92
D. The Government Improperly Capitalized on the Erroneous
Preclusion Order.
..................................................................................
92
E. The Errors Prejudiced the Other Defendants.
...................................... 99IV. The District Courts
Many Erroneous Evidentiary Rulings, Alone and
Cumulatively, Resulted in a Denial of the Right to Present a
Complete Defense.
.......................................................................................................101
A. The District Courts Erroneous Evidentiary Rulings
Individually Require Reversal.
.................................................................................1011.
The District Court Improperly Excluded Evidence Rebutting
the Governments Contention that Brown Could Have Been Safely
Held at MCJ.
......................................................................101
2. The District Court Improperly Admitted Irrelevant and Highly
Prejudicial Prosecution Evidence Concerning Specific Instances of
Inmate Abuse in the LA County Jails. ......................104
3. The District Court Improperly Limited Cross-Examination of
Jason Pearson Regarding Service of the Writ for Anthony Browns
Testimony.
......................................................................108
4. The District Court Erroneously Permitted an LASD Sergeant to
Testify that LASD Lacked Jurisdiction to Investigate the FBI While
Limiting Cross-Examination on that Subject. .............110
5. The District Court Improperly Refused to Permit the Defense
to Question Assistant United States Attorney Lawrence Middleton as
an Adverse Witness.
................................................113
6. The District Court Erroneously Excluded Evidence of Bacas
Attitude About the FBIs Investigationand the Specific Orders He
Gave in Late September.
.............................................116
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7. The Court Made Other Erroneous Evidentiary Rulings.
.............123B. Considered Cumulatively, the Evidentiary Errors
Require
Reversal.
..............................................................................................125V.
The Courts Dismissal of Juror Five Violated Defendants Sixth
Amendment Jury Trial Right.
......................................................................128A.
Introduction
.........................................................................................128B.
Relevant Law
.......................................................................................128C.
Relevant Facts
.....................................................................................130D.
The District Court Erred in Dismissing Juror Five Because There
Was a Reasonable Possibility that Her Dismissal Request Was Due
to Conflict Among the Jurors.
.............................................................134
VI. The Defendants Did Not Have Fair Notice that their Actions
Violated Federal Criminal Law.
.................................................................................138
A. Introduction
.........................................................................................138B.
The Defendants Did Not Have Fair Notice that Their Actions
Would Subject Them to Criminal Liability.
........................................1401. Application of the
Fair Warning Factors from Lanier ..................141
a) Vagueness
..................................................................................141b)
Strict construction
.....................................................................142c)
Novel interpretation
..................................................................142
2. Application of Lanier Mandates Immunity from Prosecution
Under Fair Notice Principles.
.......................................................144
3. State Law Enforcement Investigation of Criminal Law
Violations Is a Power Reserved to the States Under the Tenth
Amendment.
..................................................................................147
VII. The Convictions Rest On a Legally Mistaken Definition of
Corruptly.
...............................................................................................149
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A. This Case Exemplifies the Danger of the Broad Definition of
Corruptly.
.......................................................................................150
B. If Corruptly is Interpreted to Mean By Bribery, There Is
Insufficient Evidence to Sustain the Convictions.
..............................152
VIII. The Case Should Be Reassigned to a Different Judge on
Remand. ............152A. The Judge Exhibited Personal Bias Against
the Defendants. .............154B. The Judge Will Likely Not Be
Able to Put Out of His Mind
Several Previously Expressed Erroneous Views.
................................156CONCLUSION
.....................................................................................................158ADDENDUM
.......................................................................................................159STATEMENT
OF RELATED CASES
...............................................................160CERTIFICATE
OF COMPLIANCE
...................................................................161
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TABLE OF AUTHORITIES
FEDERAL CASES Page(s)
Aguilera v. Baca,
510 F.3d 1161 (9th Cir. 2007)
.......................................................................
43 Andrews v. Metropolitan Northern Commuter Railroad Co.,
882 F.2d 705 (2d Cir. 1989)
........................................................................
112 Armstrong v. Exceptional Child Center, Inc.,
135 S. Ct. 1378 (2015)
...................................................................................
53 Baucom v. Martin,
677 F.2d 1346 (11th Cir. 1982)
...................................................................
144 Bisno v. United States,
299 F.2d 711 (9th Cir. 1961)
..................................................................
passim Bouie v. City of Columbia,
378 U.S. 347 (1964)
....................................................................................
140 Chambers v. Mississippi,
410 U.S. 284 (1973)
.....................................................................................
127 Chapman v. California,
386 U.S. 18 (1967)
.......................................................................................
110 Connally v. General Const. Co.,
269 U.S. 385 (1926)
.....................................................................................
141 Dixon v. United States,
548 U.S. 1 (2006)
.........................................................................................
41 Dorn v. Burlington North Santa Fe Railroad Co.,
397 F.3d 1183 (9th Cir. 2005)
...............................................................
118, 119
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FEDERAL CASES (cont.) Page(s)
In re Ellis, 356 F.3d 1198 (9th Cir. 2004)
..............................................................152,
153
F.B.I. v. Superior Court,
507 F. Supp. 2d 1082 (N.D. Cal. 2007)
....................................................... 143 Florida
v. Cohen,
887 F.2d 1451 (11th Cir. 1989)
....................................................................
143 Fowler v. Sacramento Cnty. Sheriffs Department,
421 F.3d 1027 (9th Cir. 2005)
....................................................................
109 Gustafson v. Alloyd Co.,
513 U.S. 561 (1995)
......................................................................................
150 Haili v. United States,
260 F.2d 744 (9th Cir. 1958)
...................................................................
57, 73 Holmes v. South Carolina,
547 U.S. 319 (2006)
....................................................................................
126 Howard v. S.E.C.,
376 F.3d 1136 (D.C. Cir. 2004)
....................................................................
89 Idaho v. Horiuchi,
253 F.3d 359 (9th Cir. 2001), vacated as moot, 266 F.3d 979
....................... 147 Kentucky v. Long,
837 F.2d 727 (6th Cir. 1988)
.................................................................
53, 143 Kolender v. Lawson,
461 U.S. 352 (1983)
.....................................................................................
141 Kroll v. United States,
433 F.2d 1282 (5th Cir. 1970)
.......................................................................
89
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FEDERAL CASES (cont.) Page(s)
Mesa v. California, 489 U.S. 121 (1989)
....................................................................................
148
Messerschmidt v. Millender,
132 S. Ct. 1235 (2012)
.........................................................................
144, 145 New York v. Tanella,
374 F.3d 141 (2d Cir. 2004)
.......................................................................
144 Old Chief v. United States,
519 U.S. 172 (1997)
.....................................................................................
107 Parle v. Runnels,
505 F.3d 922 (9th Cir. 2007)
.......................................................... 77, 103,
126 United States v. Petersen,
513 F.2d 1133 (9th Cir. 1975)
............................................................ 40,
43, 48 Pettibone v. United States,
148 U.S. 197 (1893)
......................................................................................
70 Reynolds v. Hartford Finance Services Group, Inc.,
426 F.3d 1020 (9th Cir. 2005), revd on other grounds by Safeco
Ins. Co of Am. v. Burr, 551 U.S. 47 (2007)
................................................................
88
Smith v. Goguen,
415 U.S. 566 (1974)
.....................................................................................
141 Texas v. Carey,
885 F. Supp. 940 (W.D. Tex. 1994)
........................................................... 144
Torres v. County of Oakland,
758 F.2d 147 (6th Cir. 1985)
........................................................................
112 United States v. Aguilar,
515 U.S. 593 (1995)
...............................................................................
passim
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FEDERAL CASES (cont.) Page(s)
United States v. Alcantara-Castillo, --- F.3d -- 2015, WL
3619853 (9th Cir. June 11, 2015) ..................................
98 United States v. Alghazouli,
517 F.3d 1179 (9th Cir. 2008)
.......................................................................
76 United States v. Arambula-Ruiz,
987 F.2d 599 (9th Cir. 1993)
.......................................................................
107 United States v. Atondo-Santos,
385 F.3d 1199 (9th Cir. 2004)
.....................................................................
153 United States v. Bahamonde,
445 F.3d 1225 (9th Cir. 2006)
........................................................................
6 United States v. Banks,
514 F.3d 959 (9th Cir. 2008)
........................................................................
56 United States v. Barker,
546 F.2d 940 (D.C. Cir. 1976)
.......................................................... 40, 43,
44 United States v. Bishop,
291 F.3d 1100 (9th Cir. 2002)
......................................................................
99 United States v. Blueford,
312 F.3d 962 (9th Cir. 2002)
........................................................................
98 United States v. Bonds,
784 F.3d 582 (9th Cir. 2015)
...............................................................
141, 150 United States v. Boulware,
384 F.3d 794 (9th Cir. 2004)
.......................................................... 91, 126,
127 United States v. Brown,
688 F.2d 596 (9th Cir. 1982)
...................................................................
67, 73
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FEDERAL CASES (cont.) Page(s)
United States v. Brown, 823 F.3d 591 (D.C. Cir. 1987)
...................................................... 128, 135,
136
United States v. Bryant,
461 F.2d 912 (6th Cir. 1972)
........................................................................
115 United States v. Burt,
410 F.3d 1100 (9th Cir. 2005)
......................................................................
45 United States v. Bush,
626 F.3d 527 (9th Cir. 2010)
........................................................................
89 United States v. Castagana,
604 F.3d 1160 (9th Cir. 2010)
..................................................................
6, 49 United States v. Coyne,
4 F.3d 100 (2d Cir. 1993)
.............................................................................
56 United States v. Custer Channel Wing Corp.,
376 F.2d 675 (4th Cir. 1967)
.........................................................................
89 United States v. DeFries,
129 F.3d 1293 (D.C. Cir. 1997)
.....................................................................
87 United States v. Doe,
705 F.3d 1134 (9th Cir. 2013)
...................................................... 40, 41, 42,
45 United States v. Egan,
860 F.2d 904 (9th Cir. 1988)
..........................................................................
6 United States v. Evans,
728 F.3d 953 (9th Cir. 2013)
.................................................................
92, 121 United States v. Fassnacht,
332 F.3d 440 (7th Cir. 2003)
.........................................................................
71
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FEDERAL CASES (cont.) Page(s)
United States v. Fernandez, 388 F.3d 1199 (9th Cir. 2004)
......................................................................
77
United States v. Fierros,
692 F.2d 1291 (9th Cir. 1982)
.......................................................................
40 United States v. Frederick,
78 F.3d 1370 (9th Cir. 1996)
.........................................................................
77 United States v. Fulbright,
105 F.3d 443 (9th Cir. 1997), overruled on other grounds by
United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en
banc) .............. passim
United States v. Gonzalez-Flores,
418 F.3d 1093 (9th Cir. 2005)
............................................................. 107,
108 United States v. Guo,
634 F.3d 1119 (9th Cir. 2011)
.........................................................................
7 United States v. Gurolla,
333 F.3d 944 (9th Cir. 2003)
..........................................................................
6 United States v. Haischer,
780 F.3d 1277 (9th Cir. 2015)
............................................................ 90,
91, 92 United States v. Harriss,
347 U.S. 612 (1954)
....................................................................................
140 United States v. Hernandez,
730 F.2d 895 (2d Cir. 1984)
.........................................................................
65 United States v. Hitt,
981 F.2d 422 (9th Cir. 1992)
......................................................................
108 United States v. James,
169 F.3d 1210 (9th Cir. 1999)
......................................................................
121
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FEDERAL CASES (cont.) Page(s)
United States v. Kay, 513 F.3d 432 (5th Cir. 2007)
..........................................................................
7
United States v. Kim,
65 F.3d 123 (9th Cir. 1995)
......................................................................
45, 76 United States v. Kojayan,
8 F.3d 1315 (9th Cir. 1993)
...........................................................................
98 United States v. LaRouche Campaign,
695 F. Supp. 1265 (D. Mass. 1988)
.............................................................. 56
United States v. Ladum,
141 F.3d 1328 (9th Cir. 1988)
.......................................................................
65 United States v. Lanier,
520 U.S. 259 (1997)
...............................................................................
passim United States v. Liu,
731 F.3d 982 (9th Cir. 2013)
.........................................................................
49 United States v. Lopez,
514 U.S. 549 (1995)
.....................................................................................
147 United States v. Lyons,
472 F.3d 1055 (9th Cir. 2006)
.....................................................................
153 United States v. Macari,
453 F.3d 926 (7th Cir. 2006)
............................................................. 69,
70, 71 United States v. Marguet-Pillado,
648 F.3d 1001 (9th Cir. 2011)
.......................................................................
72 United States v. Mayans,
17 F.3d 1174 (9th Cir. 1994)
.......................................................................
106
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FEDERAL CASES (cont.) Page(s)
United States v. McFall, 558 F.3d 951 (9th Cir. 2009)
........................................................................
90
United States v. McLister,
608 F.2d 785 (9th Cir. 1979)
.......................................................................
125 United States v. Metcalf,
435 F.2d 754 (9th Cir. 1970)
.................................................................
73, 149 United States v. Montes,
628 F.3d 1183 (9th Cir. 2011)
....................................................... 104, 105,
112 United States v. Moran,
493 F.3d 1002 (9th Cir. 2007)
...............................................................
passim United States v. Morsette,
622 F.3d 1200 (9th Cir. 2010)
........................................................................
6 United States v. Namvar, 498 Fed. Appx. 749 (9th Cir. 2012)
............................................................ 121
United States v. Paul,
561 F.3d 970 (9th Cir. 2009)
.......................................................................
153 United States v. Peyton,
353 F.3d 1080 (9th Cir. 2003)
.....................................................................
153 United States v. Pham,
960 F.2d 1391 (9th Cir. 1991)
.......................................................................
57 United States v. Pineda-Doval,
614 F.3d 1019 (9th Cir. 2010)
......................................................................
126 United States v. Potter,
630 F.3d 1260 (9th Cir. 2011)
.........................................................................
7
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FEDERAL CASES (cont.) Page(s)
United States v. Quach, 302 F.3d 1096 (9th Cir. 2002)
.....................................................................
155
United States v. Rasheed,
663 F.2d 843 (9th Cir. 1981)
.................................................................
67, 149 United States v. Reveles-Espinoza,
522 F.3d 1044 (9th Cir. 2008)
........................................................................
7 United States v. Reyes,
313 F.3d 1152 (9th Cir. 2002)
......................................................................
153 United States v. Ryan,
455 F.2d 728 (9th Cir. 1972)
............................................................. 67,
69, 73 United States v. Sanabria,
645 F.3d 505 (1st Cir. 2011)
........................................................................
125 United States v. Schoneberg,
396 F.3d 1036 (9th Cir. 2005)
...................................................... 109, 110,
111 United States v. Smith-Baltiher,
424 F.3d 913 (9th Cir. 2005)
...................................................................
39, 43 United States v. Stever,
603 F.3d 747 (9th Cir. 2010)
......................................................... 92, 126,
127 United States v. Symington,
195 F.3d 1080 (9th Cir. 1999)
................................................................
passim United States v. Thomas,
32 F.3d 418 (9th Cir. 1994)
.....................................................................
91, 98 United States v. Thomas,
116 F.3d 606 (2d Cir. 1997)
.........................................................................
129
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FEDERAL CASES (cont.) Page(s)
United States v. Triumph Capital Group, Inc., 544 F.3d 149 (2d
Cir. 2008)
..................................................................
passim
United States v. Tsui,
646 F.2d 365 (9th Cir. 1981)
........................................................................
115 United States v. Wallace,
848 F.2d 1464 (9th Cir. 1988)
......................................................................
77 United States v. Washington Water Power Co.,
793 F.2d 1079 (9th Cir. 1986)
..................................................................
62, 75 United States v. Waters,
627 F.3d 345 (9th Cir. 2010)
........................................................ 103, 113,
125 United States v. Whitman,
771 F.2d 1348 (9th Cir. 1985)
......................................................................
127 United States v. Withers,
638 F.3d 1055 (9th Cir. 2011)
......................................................................
153 United States v. Woodward,
149 F.3d 46 (1st Cir. 1998)
...........................................................................
56 United States v. Yida,
498 F.3d 945 (9th Cir. 2007)
..........................................................................
6 United States v. Zuniga,
6 F.3d 569 (9th Cir. 1993)
............................................................................
45 Verlinden B. V. v. Central Bank of Nigeria,
461 U.S. 480 (1983)
..............................................................................
passim Walker v. Endell,
850 F.2d 470 (9th Cir 1987)
.........................................................................
42
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FEDERAL CASES (cont.) Page(s)
Williams v. Cavazos, 646 F.3d 626 (9th Cir. 2011), revd on other
grounds sub nom. Johnson v. Williams, 133 S. Ct. 1088 (2013)
............................................. 6, 138
Yates v. United States,
135 S. Ct. 1074 (2015)
.................................................................................
150
STATE CASES People v. George,
30 Cal. App. 4th 262 (1994)
.........................................................................
52
FEDERAL STATUTES 18 U.S.C. 242
....................................................................................................
144 18 U.S.C. 371
.........................................................................................................
8 18 U.S.C. 1001
.............................................................................................
passim 18 U.S.C. 1503
..............................................................................................
passim 18 U.S.C. 3231
.......................................................................................................
3 28 U.S.C. 1291
......................................................................................................
3 28 U.S.C. 1442
..................................................................................................
142 28 U.S.C. 1442(a)
.......................................................................
140, 143, 148, 149 28 U.S.C. 1983
..........................................................................................
144, 146
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FEDERAL RULES Page(s)
Fed. R. App. P. 4(b)
.................................................................................................
3 Fed. R. Evid. 401
...................................................................................................
86 Fed. R. Evid. 403
............................................................................................
passim Fed. R. Evid. 611(c)
.................................................................................
114, 115, 117 Fed. R. Evid. 801(a)
..............................................................................................
123 Fed. R. Evid. 801(c)(2)
.........................................................................................
123 Fed. R. Crim. P. 24(c)(1)
.....................................................................................
128
STATE STATUTES
Cal. Penal Code 4573.6
..................................................................................
52, 53
Cal. Penal Code 4575
.....................................................................................
52, 53
OTHER AUTHORITIES A. Raynor, The New States Sovereignty
Movement, 90 IND. L.J. 613 (2015) ............ 147
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INTRODUCTION
During a search of an inmates property in August, 2011, deputies
of the Los
Angeles County Sheriffs Department (LASD) discovered a
contraband cell
phone. The inmate, Anthony Brown, had recently been sentenced to
state prison
for 423 years to life. The phone contained pictures of cash and
narcotics.
The inmate first claimed a nurse had brought him the phone, as
well as
drugs, including methamphetamine, cocaine and marijuana, which
he distributed in
the jail. He later reported it was a deputy who brought him the
phone and drugs,
and said that other deputies were involved in the same activity.
The inmate
expressed fear of retaliation from deputies, and fear of other
inmates for being an
informant.
Ten days after the phone was discovered by LASD, the FBI
Assistant
Director in Charge contacted the Sheriff and told him the phone
belonged to the
FBI and he wanted it back. He also expressed his concern about
the inmates
safety and requested that he be protected from possible
harm.
The Sheriff ordered a full investigation into the FBIs actions,
including
potential violations of state law by the agents who caused the
phone to be delivered
to the inmate. The Sheriff and other high ranking officials
issued facially lawful
orders to carry out that investigation and to insure nothing
happened to the inmate.
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The government maintained the Sheriff and other officials issued
the facially
lawful orders with the intent to obstruct a federal grand jury
investigation into civil
rights violations in the jails, and that Defendants carried out
the orders with that
same intent. The Defendants maintained they acted in good faith
in carrying out
the orders, and reasonably believed the orders were lawful and
thus lacked the mens
rea required for conviction. The Defendants efforts to establish
their good faith
and lawful conduct were stymied at every turn when the court
excluded relevant
evidence and denied appropriate jury instructions. As a result,
Defendants were
convicted after trial and now bring this appeal seeking redress
from this Court.
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JURISDICTIONAL STATEMENT AND BAIL STATUS
All six Defendants in this consolidated appeal were sentenced
September 23,
2014, and their judgment and commitment orders were entered
September 26,
2014. ER 8: 2330, 2335, 2340, 2346, 2351, 2358.1 They each filed
a timely notice of
appeal. ER 8: 2334, 2339, 2345, 2350, 2356, 2362. See Fed. R.
App. P. 4(b). Co-
defendant James Sexton was separately tried after the court
granted a severance
motion.
The district court, the Honorable Percy Anderson, had original
jurisdiction
under 18 U.S.C. 3231. This Court has jurisdiction under 28
U.S.C. 1291.
Defendants are on bail, granted by this Court. CR 769.
1 The excerpts of record are in nine volumes, consisting of
Volumes 1A and 1B (containing the rulings challenged on appeal) and
Volumes 2-8. They are cited as ER [Volume #]: page. The reporters
transcripts of the trial are consecutively numbered and available
at CR 690 (pages 1-35), 705 (36-136), 728 (137-265), 742 (266-431),
691 (430-621), 692 (622-696), 707 (697-795), 693 (796-876), 708
(877-1029), 694 (1030-1261), 695 (1262-1352), 710 (1353-1488), 696
(1489-1649), 711 (1650-1705), 697 (1706-1807), 745 (1808-1978), 698
(1979-2223), 699 (2224-2371), 713 (2372-2450), 700 (2451-2686), 701
(2687-2760), 483 (2761-2894), 702 (2895-3052), 703 (3053-3214), 714
(3215-3269), 704 (3216-3349), 716 (3350-3455), 732 (3456-3584), 484
(3585-3616), 733 (3617-3677), 485 (3688-3719), 717 (3720-3810), 734
(3811-3948), 486 (3949-4021), 737 (4022-4092).
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ISSUES PRESENTED
1. Whether Defendants were denied their right to have the jury
consider
their authorization and good faith defenses?
2. Whether the district court erred when it declined to give
an
instruction to prevent conviction on the prosecutions erroneous
theory that
Defendants could be found liable based on having intended to
obstruct an FBI
investigation, when the prosecution was actually required to
show that Defendants
intended to obstruct a grand jury proceeding?
3. Did the district court err when it precluded the testimony of
Paul
Yoshinaga, LASDs Chief Legal Advisor, who would have testified,
among other
things, that Leavins repeatedly sought his legal advice during
the time period
involved in this case, and whose testimony thus would have
provided critical
support for the conclusion that Defendants acted in good faith,
with a reasonable
belief that their conduct was consistent with lawful orders?
4. Whether the district courts many erroneous evidentiary
rulings,
individually and cumulatively, denied the defendants the right
to present a
complete defense?
5. Whether the district court erred when it dismissed a juror on
the fifth
day of deliberations, where the jurors remarks to the court
indicated at least a
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reasonable possibility that difficulties she was having stemmed
from her
disagreement with another juror (or jurors) about the merits of
the case?
6. Whether Defendants convictions violated their due process
right to
fair notice that their conduct could subject them to criminal
liability?
7. Whether this Courts definition of corruptly, should be
reconsidered, because it is vague and allows for arbitrary and
capricious
enforcement of the omnibus clause of 18 U.S.C. 1503?
8. Whether the case should be reassigned on remand to preserve
the
appearance of justice where the district court appeared rigid in
its erroneous legal
conclusions and expressed personal bias toward the
defendants?
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STANDARDS OF REVIEW
Denial of a jury instruction based on a question of law is
reviewed de novo.
United States v. Castagana, 604 F.3d 1160, 1163 n.2 (9th Cir.
2010). Whether the
jury instructions adequately covered a defendants proffered
defense is a question
of law reviewed de novo. United States v. Morsette, 622 F.3d
1200, 1201 (9th Cir.
2010) (per curiam).
Whether reversal is required because the government proceeded on
an
invalid theory of liability is reviewed de novo. United States
v. Egan, 860 F.2d 904,
907 (9th Cir. 1988).
This Court reviews a district courts evidentiary rulings for an
abuse of
discretion and its interpretation of the Federal Rules of
Evidence de novo. United
States v. Yida, 498 F.3d 945, 949 (9th Cir. 2007). Where an
appellant claims the
district court sustained too many objections, this Court
reverses if the sustained
objections led to the denial of a fair trial. United States v.
Gurolla, 333 F.3d 944, 958
(9th Cir. 2003). The Court reviews de novo whether a district
courts evidentiary
rulings violated a defendants constitutional rights. United
States v. Bahamonde,
445 F.3d 1225, 1228 n.2 (9th Cir. 2006).
The Court reviews de novo a Sixth Amendment challenge to the
dismissal of
a juror during deliberations. See Williams v. Cavazos, 646 F.3d
626, 646 n.16 (9th
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Cir. 2011), revd on other grounds sub nom. Johnson v. Williams,
133 S. Ct. 1088
(2013).
This Court should review de novo the disposition of a motion to
dismiss on
the basis of lack of fair notice on which ruling was deferred
and later denied after
trial but before conviction. Review of a motion to dismiss an
indictment is
reviewed de novo. United States v. Reveles-Espinoza, 522 F.3d
1044, 1047 (9th Cir.
2008). A challenge to the constitutionality of a statute is
reviewed de novo, United
States v. Potter, 630 F.3d 1260, 1260-61 (9th Cir. 2011), as are
claims that a criminal
statute is vague, United States v. Guo, 634 F.3d 1119, 1121 (9th
Cir. 2011). In United
States v. Kay, 513 F.3d 432, 440 (5th Cir. 2007), which directly
addressed a Lanier-
based fair notice challenge, review was de novo.
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STATEMENT OF THE CASE
A. Procedural History
In November 2013 a grand jury returned a six count indictment
against seven
members of the Los Angeles County Sheriffs Department (LASD):
Gregory
Thompson, Stephen Leavins, Gerard Smith, Mickey Manzo, James
Sexton, Scott
Craig, and Maricela Long. CR 1; ER 2: 601 (redacted
version).
Count 1 charged the defendants with conspiracy to corruptly
influence,
obstruct, and impede, the due administration of justice from on
or about August
18, 2011 to or about October 3, 2011, in violation of 18 U.S.C.
371 and 18 U.S.C.
1503(a). CR 1. Counts 2, 3 and 4 charged obstruction of justice
violations under
the omnibus provision of 18 U.S.C. 1503(a). Count 5 charged
Craig, and
Count 6 charged Long, with making false statements to the FBI in
violation of 18
U.S.C. 1001.
The court granted Sextons request for a severance. Sexton was
tried first; a
mistrial occurred when the jury failed to reach a verdict. CR
265, 362, 383. The six
Defendants joined in this appeal were tried after Sextons
mistrial. CR 381.
Trial began on May 21, 2014. On June 30, the fifth day of
deliberations, two
of the original jurors were excused and replaced with
alternates. CR 465. The
following day, the jury found all six defendants guilty of all
counts. CR 467.
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The court sentenced Leavins to 41 months, Thompson 37 months,
Craig 33
months, Long 24 months, Manzo 24 months, and Smith 21 months. ER
8: 2358,
2340, 2351, 2335, 2346, 2330.
B. Statement of Facts
1. Background: LASDs Structure and Chain of Command
The LASD, which is the largest sheriffs department in the United
States,
employs nearly 18,000 people and has an annual budget of nearly
$3 billion. ER 4:
1121-22. It provides police services throughout Los Angeles
County and is
responsible for operation of county custody facilities. ER 1123.
Sheriff Leroy Baca,
an elected official, was at the top of the chain of command.
Undersheriff Paul
Tanaka, who oversaw LASDs day-to-day operations, was next. ER 4:
1122. The
LASD is a quasi-military organization in which [i]ts very
important that
the chain of command is followed from the top to the bottom. ER
4: 1123-24.
The people that are in subordinate positions to those above them
are expected to
follow all lawful orders. ER 4: 1125.
At the time of the events in question, Gregory Thompson was a
lieutenant in
Custody Investigative Services, at the Mens Central Jail (MCJ).
Gerard Smith
and Mickey Manzo were deputies assigned to Operation Safe Jails
(OSJ), a unit
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under Thompson that worked to prevent jail violence through
intelligence
gathering.2 ER 2: 637.
Stephen Leavins was a lieutenant in the Internal Criminal
Investigations
Bureau (ICIB), an LASD department devoted to investigating
criminal
misconduct committed by law enforcement employees in the course
of their
employment. ER 1431-32. Scott Craig and Maricela Long were
sergeants assigned
to ICIB. Long joined ICIB just weeks before the events described
in the indictment
(RT 2040); Craig was her training officer (RT 2635).
2. LASD Deputies Discover a Cell Phone in the Property of a
High-
Risk Inmate.
In July 2011, FBI agents caused a cell phone to be smuggled into
MCJ to
inmate Anthony Brown. Brown had been sentenced to 423 years to
life and was
awaiting transfer to state prison. ER 3: 1048-51, 1074.
On August 8, deputies found the phone in Browns property as he
was being
transported to a nearby hospital. ER 7: 1890. The FBI agents
knew within hours
that the phone had been discovered. They chose not to notify
anyone in LASD.
ER 3: 968.
2 The LASD rank structure is: Sheriff, Undersheriff, Assistant
Sheriff; Chief, Commander, Captain; Lieutenant, Sergeant, Deputy.
ER 4: 1120-25.
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The LASD discovered that the phone contained pictures of cash
and
narcotics. ER 2: 645. The LASD sought subscriber information for
the phone, but
the FBI made sure the phone was not traceable. RT 600; ER 3:
1044, 1069.
When Brown returned to MCJ from the hospital a few days later,
he
immediately sought benefits in exchange for information he
claimed to have about
the widespread smuggling of cell phones and narcotics by staff
nurses. ER 7: 1896,
1903. A few days later, Brown again sought out deputies, this
time reporting that a
deputy brought him the phone, as well as methamphetamine,
cocaine, marijuana
and ecstasy. ER 7: 1898-1900. Brown said that his partner on the
street, whom he
identified as CJ, provided the drugs to the deputy. Brown sold
the drugs inside
MCJ. Brown provided investigators with a handwritten list of the
drugs he
distributed in MCJ, with the cost and selling price. ER 7: 1900.
Brown feared that
his life was in danger both from deputies and from inmates, who
might suspect he
was cooperating. ER 7: 1900-01.
Lt. Thompson directed Deputies Smith and Manzo to assist in
the
investigation. ER 2: 644; ER 7: 1902. Smith promptly obtained
various jail records
and reported what he learned to his superiors. ER 7: 1904,
1909-12, 1917-18.
On August 17, Smith recovered two recorded calls Brown made from
a jail
phone in July. In one call, an unidentified woman told Brown he
should have his
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contact call her so that you can get your shit before you go. ER
7: 1919. In the
other call, the same woman told Brown he would have his phone
soon. ER 7:
1921. OSJ Deputy Noah Kirk listened to the second call and told
Smith he thought
they had a corrupt employee. ER 5: 1406-09.
The following day, Thursday August 18, Kirk contacted the
analyst on the
FBI-LASD joint task force to which he was assigned and learned
that the number
Brown called from the jail phone belonged to the FBI Civil
Rights Division. ER 7:
1924. Thompson notified one of the investigators that Brown was
going to be
shipped to CDC on the next available bus. ER 7: 1923. In the
interim, he was to
be housed in 1750, a high security area, and was to have no
phones, no visits,
especially from outside LE [law enforcement] without Thompsons
approval. Id.
On Friday August 19, Thompson directed Smith and Manzo to
interview
Brown before he was sent to state prison. Brown told them he was
smuggling in
cell phones, methamphetamine, cocaine and marijuana from CJ
through a
deputy. ER 3: 1070; ER 7: 1927-29. Smith confronted Brown with
the recorded
calls to the unidentified woman. ER 7: 1929-31. In response,
Brown suggested
LASD might want to clean its own backyard rather than letting
the Feds clean
it. ER 7: 1938. Smith pressed Brown for further information,
telling him [t]his
is my house . . . [s]omeones already here. I want to know how
long theyve been
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here. Id. at 1939. Brown said he would only provide further
information if he
received certain benefits. This was beyond Smiths authority, but
he said he would
report Browns requests to his superiors. ER 7: 1946,
1949-50.
3. The Sheriff Learns of the Contraband Phone and Issues
Marching
Orders.
The unfolding events led the Sheriff to hold a special briefing
at LASD
headquarters on Saturday, August 20. ER 4: 1290. Sheriff Baca,
Undersheriff
Tanaka and various Captains and Lieutenants attended, including
ICIB Cpt.
William (Tom) Carey, Lt. Thompson, and Lt. Leavins. ER 4:
1134-35; ER 5:
1438. Thompson directed Deputies Smith and Manzo to attend. ER
2: 644. Baca
told the attendees that FBI Assistant Director in Charge Steve
Martinez had called
him a day or two earlier. According to the Sheriff, Martinez had
said that a cell
phone found in MCJ belonged to the FBI and had asked that the
phone be
returned.3 ER 4: 1292. The Sheriff told Martinez he was angry
that the FBI had
smuggled the phone into MCJ. ER 4: 1237.
3 Martinez also expressed concern for Browns safety, given that
he would remain in LASD custody. ER 4: 1234-35. LASD officials and
the FBI agreed that Brown faced harm from deputies if it became
known he was cooperating against deputies, and from inmates for
being an informant, even if he was informing against officers. ER
3: 1024-25; ER 4: 1137-38, 1300.
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The Sheriff gave two sets of orders. First, the Sheriff directed
that Brown
remain in LASD custody until the criminal investigation was
complete, that Brown
be isolated, and that no one be allowed access to him without
approval of the
Undersheriff. ER 4: 1292-93, 1308-09. The isolation order was to
protect Brown
from the serious risk of harm he faced from deputies and
inmates, and to insure the
integrity of LASDs investigation. ER 4: 1137, 1152, 1305; ER 5:
1460. Second, he
ordered ICIB to conduct a criminal investigation to get to the
bottom of of
the smuggled contraband cell phone. ER 4: 1292; ER 5: 1439.
Carey chose Craig to
conduct the investigation regarding the cell phone and the FBI
agents who were
responsible for inserting it into MCJ. RT 2635-36.
The Sheriffs orders were carried out in parallel.
4. The First Set of Orders: Keep Anthony Brown Safe
a) Brown is allowed out of his cell due to a breach in
security,
and additional safeguards are ordered.
Despite the Sheriffs directive that Brown not be allowed visits
without
authorization, deputies allowed him out on August 23 for a visit
with three FBI
agents. ER 3: 969-70. An LASD officer terminated the interview
when it was
discovered that the visit had not been authorized. Id. The
officer told the agents
that Brown could not be interviewed by any law enforcement
personnel. ER 2: 729.
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The agents were asked to wait to speak with Carey, who was
already en route. They
left before Carey arrived.4
Concerned about Browns safety, and after seeking approval from
their
superiors, Carey and Leavins directed that deputies be assigned
to guard Brown
around the clock, and that he be moved from MCJ to the San Dimas
station jail.5
ER 4: 1152, 1304-06, 1374; ER 5: 1459-67. The move also allowed
ICIB
investigators to interview Brown without arousing the suspicion
of other inmates or
deputies. ER 4: 1374; ER 5: 1465-67. Carey advised Baca and
Tanaka that Brown
was going to be held under a different name to protect him by
ensuring that no one
knew where he was housed, and that no one, including deputies,
would be able to
locate him through the electronic records system. ER 2: 825; ER
4: 1154, 1307-08;
ER 5: 1467.
4 FBI Special Agent Dahle testified that he and the other agents
left before Carey arrived because even if [he] would have showed
up, theres Federal Grand Jury prohibitions on giving people
information pertaining to a Federal Grand Jury information. ER 2:
666, 692, 733.
5 The transfer to San Dimas was supposed to occur on August 23,
but had to be delayed until Brown was approved for self-medication.
ER 2: 837; ER 7: 2006, 2014. In the interim he was held in a secure
medical unit in 8200. ER 7: 2005.
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On August 24, Smith and Manzo met with other OSJ deputies
assigned to
guard Brown. Smith or Manzo told the deputies no one could see
or visit Brown
without authorization, including the FBI or any other law
enforcement personnel.
ER 2: 815-16, 849. Deputies were told that a cell phone
belonging to the FBI was
found and they needed to investigate. ER 2: 817-18.
Smith sent an email later that day to the OSJ deputies assigned
to watch
Brown, who he referred to as the inmate we are tasked with
protecting, stating
that he was in charge of security and scheduling. ER 7: 2011.
Smith wrote that
there was to be no movement of Brown, except for medical
reasons, without the
presence of Tanaka, Carey, Leavins, Thompson, Manzo, or himself.
Id.
Smith gave the deputies a calendar book that he referred to as
the CYA
book. ER 7: 2014. The deputies were to document everything
[they]. . . did
regarding Anthony Brown in the CYA book; in the event that
anyone had
questions, they would be covered. ER 2: 820; see also ER 2:
783-85, 796-97.
The San Dimas transfer occurred on August 25. ER 4: 1374.
Electronic
records showed that Brown had been released to OTHR, which meant
he was still
in government custody.6 RT 2817-18. Gus Academia, a 30-year LASD
employee,
6 On August 26, FBI Special Agent Leah Marx accessed the LASDs
website inmate locator system and saw that Brown had been released
to OTHR on
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released Brown from the system at the request of a lieutenant,
after being told it
was ordered by Undersheriff Tanaka. RT 1204. The lieutenant went
to Academia
after Tara Adams, who had been at the Inmate Reception Center
(IRC) for 8
months, refused to do the release without a written order. RT
1148, 1171. Browns
booking records jacket was also removed from the IRC files, a
common procedure
when hiding an informant, and delivered to Thompsons office.7 ER
7: 2019;
RT 1200. Brown had been rebooked under a different nameJohn
Rodriguez
before he left MCJ, and he was rebooked again as Kevin King when
he arrived at
San Dimas. ER 7: 2024. Deputies did not Live Scan
(electronically fingerprint)
Brown when rebooking him because it would have allowed his
location to be
determined electronically by anyone with access to LASDs
system.8 ER 2: 827,
837. The CYA book showed Browns aliases and booking numbers. ER
7: 2014.
August 25, 2011. ER 3: 977-80; ER 7: 2031. She thought it was
incredibly odd that he was shown as released, but she did not call
anyone or make any further effort to find out his location. ER 3:
1075-76.
7 Browns booking jacket was produced to federal agents in early
September in response to a grand jury subpoena. RT 3074-75.
8 It was not uncommon for a cooperating witness to be held under
an alias, and shown as having been released. RT 2817-22. Det.
Lillienfeld, a 30 year LASD and homicide investigator, had an
informant being held under an alias at San Dimas at the same time
as Brown. RT 2819-20. Lillienfeld also explained that the
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On August 25, Thompson sent an email to MCJ officers advising
that,
[e]ffective immediately, all FBI requests for inmate interviews
will be approved by
MCJ Liaison, adding that [o]nce approved the inmate will be
transported to
MCJ and made available to the FBI. ER 7: 2010; ER 2: 667.9
b) A federal writ is obtained for Brown.
As the FBI agents August 23 interview was being terminated, they
told
Brown that they would try to get you out of here. ER 3: 969-70.
They contacted
the U.S. Attorneys Office (USAO) after leaving MCJ and began the
process of
applying for a writ for Brown to be turned over to federal
custody. ER 3: 982. On
August 25, the USAO secured a grand jury subpoena for Brown to
appear on
September 7. ER 2: 771; ER 7: 2032.
Writs for LASD inmates are served on the IRC and processed
through the
warrants and detainers section. ER 2: 788. The U.S. Marshal
Service (USMS)
is responsible for serving the writs. ER 2: 603; ER 3:
768-69.
inmates paper file would be placed in the Watch Commanders safe
so it would not be accessible without authorization. RT
2813-14.
9 The LASD already had a policy in place that required
identification and that records be kept of all law enforcement
visits, but the policy had not been strictly enforced. ER 4:
1139-40, 1143.
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Yolanda Baines, a USMS employee, received the writ for Brown. ER
2: 770.
Her normal process, which she followed in this case, was to call
the facility to
make sure the inmate is good to go, to make sure the inmate is
even housed
there, and then serve that writ. ER 2: 769-70, 773, 780. Baines
had two
conversations with LASD: One phone call was they didnt know
his
whereabouts, they couldnt find him, and the other phone call was
that she would
have to speak to her supervisor, see if he was medically
cleared. ER 2: 773.
On August 26, Baines emailed Assistant United States Attorney
Lawrence
Middleton twice, and asked him to call her regarding Brown. ER
7: 2033, 2034.
She wanted to tell Middleton what LASD had told her. ER 2: 781.
Although
Baines testified that she served the writ, she could not recall
how (i.e., by email or
fax). There were two fax transmissions between the USMS on
August 25, the day
before Baines contacted Middleton, but there was no record of
what was sent or
received. ER 2: 774-76. There was no record of IRC ever
receiving a writ for
Brown. ER 2: 767C-767E.10
10 Jason Pearson, one of the OSJ deputies assigned to guard
Brown, testified that sometime near the end of the period between
August 21 and September 12, he learned about a writ for Brown. ER
2: 789, 808.
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As of August 26, Cpts. Carey and Ornelas and Lt. Thompson
were
discussing how a writ for Brown should be handled if one were
received. As a
result of that conversation, Ornelas sent an email to all MCJ
lieutenants and
sergeants on August 26 with a subject line of Court Order
presented By Federal
Officers. ER 7: 2038; see also ER 7: 2035, 2037. The email
instructed that if
anyone was presented with a removal or court order by a federal
law enforcement
agency, they were to [r]eceive the order and advise the federal
officer that before
you can proceed, you have to submit the order to the Departments
legal advisor
for review. ER 7: 2038. They were not to release the inmate or
allow contact
prior to doing so. Id.
c) After meeting with the Sheriff, the U.S. Attorneys Office
tells the U.S. Marshal not to act on the writ.
On August 29, Sheriff Baca, Undersheriff Tanaka, Captain Carey
and
attorney Michael Genacco of the Office of Independent Review,
among others, met
with U.S. Attorney Andr Birotte and others from his office,
including AUSA
Middleton. ER 4: 1155-56, 1252-56, 1309. The Sheriff was upset
with the actions
of the FBI, which he felt was incompetent to have introduced a
cell phone into
MCJ. ER 4: 1160, 1261, 1310. He believed the FBI had violated
the law by
smuggling the phone and/or drugs into MCJ and swore he would
investigate the
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FBIs actions. ER 4: 1160-62, 1263; ER 5: 1492-93. The U.S.
Attorney did not
object. ER 4: 1161; ER 5: 1494. There was no mention of any
subpoena, and no one
asked for Brown. ER 4: 1161-62. After the meeting, Middleton
told the USMS
not to pursue getting Anthony Brown over until further notice.
ER 4: 1270.
d) Brown is released to state prison.
On September 2, Brown became upset because another informant got
fast
food while he did not. Brown took whatever food was in his cell,
threw it on the
windows, and threw a huge temper tantrum. ER 5: 1413-14. He was
moved
back to MCJ and rebooked as Chris Johnson. ER 3: 987-88; ER 5:
1417; ER 7:
2029; see also ER 7: 2045. He was again housed in 8200, and
continued to be
guarded by two OSJ deputies. ER 5: 1419-20; ER 7: 2039. OSJ
Deputy Haley
asked in an email if Brown could be moved out of MCJ to another
station jail
because of the problems in having him so close to the firei.e.,
which he
explained meant where the original incident occurred. ER 7:
2045; ER 5: 1421-23.
Smith conducted a brief tape-recorded interview of Brown and
asked if he wanted
to continue to cooperate. ER 7: 2002. Brown wrote a letter to
Leavins and others
dated September 3 in which he asked to be returned to the
station jail. Brown said
he would not cooperate with the FBI and offered to work for LASD
in return for
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special privileges. ER 7: 2040-44; ER 3: 1093. He was released
to state prison on
September 12. ER 3: 989-90; ER 5: 1419; ER 7: 2046, 2047.
5. The Second Set of Orders: Get to the Bottom of How and
Why
the Smuggled Contraband Came into the Jail
The Sheriff tasked ICIB with performing a criminal investigation
with two
main purposes: identifying criminal or corrupt behavior on the
part of LASD
employees,11 and identifying potential criminal behavior on the
part of the FBI
agent or agents who smuggled contrabandat least cell phones, and
maybe
drugsinto MCJ.
a) ICIB investigators interview Anthony Brown.
After the Sheriffs August 20 meeting, ICIB investigators
interviewed Brown
several times. Leavins interviewed him on August 21, 23, and 24.
ER 7: 1951, 1969,
1978, 1995. Carey participated in the August 23 interview. ER 4:
1298; ER 7: 1978.
Craig and Long participated in the August 24 and 26 interviews.
Id. Smith and
Manzo escorted Brown to and attended the August 21, 23 and 24
interviews.
11 ICIB had concurrent jurisdiction with the FBI to investigate
both jail assaults and employee corruption.11 ER 2: 713, 716; ER 4:
1216-17.
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On August 21, Brown repeated his story that that his people
would meet
and pay deputies who brought Brown drugs, cell phones [and]
cigarettes. ER 7:
1954. He said there were a bunch of names involved. ER 7: 1953.
Brown
claimed that the smuggling of cell phones extended back to 2009.
ER 7: 1954-55.
He claimed that the FBI had been involved since around that
time. ER 7: 1958-59.
Brown identified the deputy who brought him the most recent
phone as Gilbert
Michel. ER 7: at 1954. Brown subsequently told ICIB
investigators that every time
a deputy met with CJ, his undercover FBI contact, the deputy
brought narcotics
into the jail. ER 2: 717; ER 4: 1301-02.12
Leavins and Carey interviewed Brown at MCJ on August 23, just
after the
early termination of the FBI interview. ER 7: 1978. The ICIB
investigators acted
as if they did not know the FBI had visited Brown. ER 7: 1979.
Brown told them
that there had never been any discussion of him testifying for
the FBI. ER 7: 1981.
Brown expressed concern for his safety and was assured that he
would be
protected. Leavins explained that Brown would be moved to a
station jail so that he
12 The FBI did not know Brown was telling ICIB investigators
that he had smuggled drugs into MCJ and distributed them to
inmates, nor did they know Brown was reporting that the drugs were
paid for by his FBI contact. ER 3: 1070-71.
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would no longer be in a facility with deputies he was accusing
of wrongdoing. ER 2:
723, 765; ER 7: 1987-90.
During the August 26 interview, Brown mentioned that he had not
seen the
FBI agents since their interview was ended on August 23. ER 7:
1999 (Ex. 24 at 1).
He said that the last thing FBI agents told him was that they
were going to get him
out of county custody. ER 7: 2000. Long responded, [T]hats what
they said?
Id. Brown also said the FBI agents promised to put money on his
books. Long told
him, [T]hey havent come back for you. Id.
b) ICIB investigators interview corrupt deputy Gilbert
Michel.
On August 30, the day after the Sheriffs meeting at the USAO,
Leavins,
Craig, and Long interviewed Michel. ER 3: 873-74; ER 7:
2057.
At trial, Michel described Craigs demeanor during the interview
as kind of
lackadaisical and said Craig made it real light hearted. RT
1387. At Craigs
prompting, Michel admitted that Brown had offered him money to
permit Brown
to make a call from Michels personal cell phone. ER 7: 2058-59.
Thereafter,
Brown put him in contact with CJ, who paid Michel to provide a
cell phone to
Brown. ER 7: 2063. Brown was supposed to use this phone to do
all of his
transactions. Id. Michel did not know for sure but assumed this
meant drug
transactions. ER 7: 2063-64.
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Michel admitted that CJ paid him a total of $1500. ER 7: 2064.
But, he lied
to ICIB investigators throughout the interview, claiming for
example that he met
with CJ and let Brown use his phone because he was conducting
his own
undercover investigation into MCJ drug smuggling. RT 1460,
3296.
During the interview, Michel relayed that FBI agents had visited
him at
home and confronted him with a videotape of him meeting with CJ.
They said
this could go down two ways, Ill either just lose my job or I
will lose my job and
go to prison. ER 7: 2079. The agents were interested in
brutality inside the jail
and asked him whether he had been involved in or witnessed the
use of excessive
force. ER 7: 2071-72. They also wanted Michel to actively work
as a cooperator.
ER 7: 2073. Michel said that the agents had accused him of lying
to them, and told
him that was a crime. ER 7: 2074.
Leavins asked Michel what transpired to lead you to be sitting
here today?
ER 7: 2076. Michel replied that the FBI wanted information and
were possibly
manipulating him. ER 7: 2077. Craig added I would say they were
trying to
manipulate you, wouldnt you? Id. Later, Leavins reiterated the
suggestion of
manipulation. ER 7: 2079.
Michel relayed that the FBI instructed him not to tell LASD
about their
contact. ER 7: 2077-78. When Michel reiterated that the FBI had
threatened him
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with the loss of his job or the loss of his job and jail, Craig
responded, So they
threatened you? ER 7: 2079. Michel agreed: the agents had told
him he would be
going to prison for taking a cell phone into a facility and for
lying to them. ER 7:
2079-80.
Toward the end of the interview, Craig told Michel, Im ordering
you not
to discuss this with anyone else period. He added, Thats your
girlfriend, thats
the FBI, thats anyone, okay? ER 7: 2083. He said, You can
discuss this with
your attorney obviously. Id.
The following exchange occurred:
Craig: Because, theyre screwing with you. I mean, it pisses
me off because again, sorry were all part of this
Department and were all one big happy
dysfunctional family, and the fuckin FBI is gonna
. . . invade the sanctity of your home and . . . talk a
gang load of shit to you and threaten you.
Michel: Yes, sir.
Craig: My blood pressure is a little up over that.
ER 2084. After a break, Craig made additional similar remarks,
including calling
the FBIs threats bullshit. ER 7: 2085-87.
After the interview, Leavins briefed Undersheriff Tanaka, who
was at MCJ
during Michels interview. ER 4: 1188. Michel was relieved of
duty as a deputy
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but not terminated. ER 3: 886-87. Michel claimed that after his
ICIB interview he
started to feel that perhaps he had been blackmailed by the FBI.
ER 3: 880.
On September 13, 2011, Craig and Long conducted a second
recorded
interview of Michel, during which he finally admitted that he
and other deputies
used excessive force on inmates. ER 3: 890-892. Craig told
Michel that he could
either resign or eventually be fired. ER 3: 891. Michel
resigned. Id. He
subsequently pleaded guilty to bribery and cooperated with the
government. Id.
c) ICIB investigators interview LASD deputy William
Courson.
As part of the ICIB investigation, Craig and Long also
interviewed William
Courson, an LASD deputy who had sought a romantic relationship
with FBI
Special Agent Marx, who Brown had said was one of his FBI
contacts. ER 3: 941-
42. Marx had pretended to be Coursons friend to obtain
information and
surreptitiously recorded their meetings. ER 3: 943; ER 7: 2049.
During Coursons
interview, Craig asked whether he thought maybe youve been
played a little
bit? Courson agreed.13 ER 7: 2051. Courson said that Marx had
told him she was
13 During the interview, Courson denied witnessing illegal
conduct, including deputy or employee brutality. At trial, he
admitted having seen deputies using excessive force. ER 3: 938; ER
7: 2053.
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investigating human trafficking. Long responded, Oh, thats what
she
mentioned? ER 7: 2051. Leavins said, Is that what she told you?
ER 7: 2052.
Courson said, Yes, sir. So Im assuming that was told wrong?
Craig said,
Well, we dont know, but that would be my guess, that she lied to
you yes . . . .
Id.
Toward the end of the interview, Leavins instructed Courson to
contact
Craig if he were contacted by the FBI. ER 7: 2055. Craig added
that Courson
should inform Craig right away if he received a subpoena or if
anyone tried to bully,
intimidate, or blackmail him. Id.
d) ICIB tries to obtain information about the FBIs
investigation
into the L.A. County jails.
On September 8, 2011, Craig applied for a court order directing
the FBI to
turn over records pertaining to any and all investigations . . .
occurring within the
confines of the Los Angeles County Jail system, from August 5,
2009 to present.
ER 7: 2100-01. Both Undersheriff Tanaka and Captain Carey were
aware that
Craig was seeking the order. ER 4: 1193-97, 1315. Superior Court
Judge John
Torribio denied the request, writing that the court had no
jurisdiction over any
federal agency. ER 7: 2100. Judge Torribio told Craig that the
State of California
lacked jurisdiction over the federal government, so that if he
issued the order, it
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would have no force and effect. RT 2536. He had no further
discussions with
Craig. He did not tell Craig he should not or could not proceed
with the
investigation for any reason. RT 2537. When Carey learned the
order had been
denied, he did not halt the investigation. ER 4: 1321.
ICIB investigators also attempted to investigate the FBI agents
they believed
to have inserted the phone. With the approval of their
superiors, ICIB
investigators arranged for limited surveillance to be conducted
of Special Agents
Marx and David Lam. ER 4: 1357-58; ER 6: 1723. Undersheriff
Tanaka approved
the surveillance, ER 5: 1511-12, and understood its goal: to
make contact with
Marx, RT 2238-40.
Craig called Marx on September 9, 2011 at the number Brown had
given him.
ER 7: 2103. He left a voicemail in which he identified himself
as an ICIB sergeant
and said he was investigating a felony complaint naming Marx as
a suspect. He
offered her a professional courtesy to meet and discuss the
allegations against
her and left his call-back number. ER 7: 2103. Carey was aware
that Craig had
called Marx and left the voicemail and may have directed him to
do so. ER 4: 1348;
RT 2616. Because Brown had given Craig an incorrect number for
Marx, she never
received the message. ER 3: 1695-96.
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On the morning of September 26, 2011, Sheriff Baca met with
Tanaka,
Carey, and Leavins. ER 4: 1329; ER 5: 1516. Baca instructed that
ICIB
investigators should approach Marx at her residence. Id. Leavins
directed Craig
and Long to make contact with Marx. He told them to identify
themselves as law
enforcement and make video and audio recordings of the contact.
ER 5: 1516-17.
Craig understood the goal of the encounter to be finding out
what the FBI had
learned in its investigation. He hoped to convince Marx to talk
to him because he
wanted to identify deputies known to have engaged in criminal
conduct. ER 6:
1714.
Later that afternoon, Craig and Long approached agent Marx
outside her
home. She recognized them as LASD employees. ER 3: 1000. After
Marx
declined to talk to them, Craig asked, [Y]ou know that youre a
named suspect in
a felony complaint? Did you get that message? ER 7: 2105. Marx
said no. Craig
said okay, what Im going to do, so you know, is, Im in the
process of swearing
out a declaration for an arrest warrant for you, would you like
us to go through,
who? ER 7: 2105. Marx told him to contact the assistant director
in charge of the
FBI. Craig said what were going to do is arrange for your
arrest, when were
ready to do that is we can either do this . . . . Marx cut him
off and told him to
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contact the FBI office. Craig and Long gave Marx their business
cards and left. ER
7: 2105. The entire interaction was recorded and lasted less
than two minutes.
Craig and Long reported the encounter up the chain of command.
Leavins
told Carey about it. ER 4: 1333. Leavins testified that Craig
and Longs encounter
with Marx was consistent with the orders [he] received from the
Sheriff. ER 5:
1518. Tanaka opined that LASD was entitled to interview Marx
during the course
of its investigation. ER 4: 1220.
After encountering Craig and Long, Marx promptly called her
supervisor,
Carlos Narro. ER 3: 1003. Narro called Long and relayed that
Marx indicated to
me that you guys indicated to her that theres going to be a
warrant for her arrest.
Long said, Theres going to be. Narro asked whether the Sheriff
knew and Long
said he did. ER 7: 2107. When Narro asked when the warrant would
issue, Long
replied, It could be tomorrow, sir. Youre going to have to talk
to the
Undersheriff. ER 7: 2108. She provided Tanakas phone number.
After hanging
up, but while still being recorded, Long told Craig, Theyre
scared; theyre like,
do you know when, is the warrant Several people laughed. ER 7:
2108.
The next day, September 27, a second meeting occurred between
Sheriff
Baca, U.S. Attorney Birotte, and FBI Assistant Director
Martinez. ER 4: 1239.
After this meeting, ICIB made no further approaches to FBI
agents.
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e) ICIB ceases its investigation after learning that the
D.A.s
office would not bring charges related to the smuggled cell
phone.
On October 3, 2011, Sergio Gonzalez, the Bureau Director for the
Los
Angeles County District Attorneys Office, had a discussion with
Craig and other
ICIB members regarding whether charges could be brought against
Brown. ER 6:
1671-74; RT 2282, 2294-96. Gonzalez told Craig that the D.A.
probably could
bring charges against the inmate unless Brown worked for the
FBI. Then, the D.A.
probably would be precluded from filing against him or would
choose not to file
against him, because of the Supremacy Clause. RT 2288-89,
2296.14 Gonzalez
did not have a further discussion with Craig regarding the
Michel investigation or
the witnesses who were interviewed. RT 2305. Rather, they
discussed
investigating the Michel case to find out the truth as to who
was involved and
what everybody was doing, and whether it was legitimate. RT
2307. ICIB did
not further investigate FBI agents for possible violations of
state law after this date.
ER 6: 1688; RT 2343-44.
14 This interpretation was legally incorrect, because the
Supremacy Clause does not preclude the filing of charges against a
federal agent by a state authority. See infra at Section I.B.
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SUMMARY OF ARGUMENT
Defendants were denied a fair trial because of multiple
instructional and
evidentiary errors that were of constitutional dimension, and
which individually
and collectively require reversal.
First, the court committed a series of instructional errors as
to Defendants
authorization and good faith defenses: (a) The court refused to
instruct the jury
that for a conviction on the obstruction of justice and
conspiracy charges the
government was required to prove either that Defendants acts
were not authorized
by their superiors, or that it was not reasonable for Defendants
to believe the orders
were lawful; (b) The court altered the parties proposed good
faith instruction, so
that good faith was not a complete defense and was instead only
one factor to
consider in determining Defendants intent; (c) The court
erroneously advised the
jury that if the FBI directed contraband to be smuggled into the
jail, there would no
violation of state law, and thus local officers could not
investigate the introduction
of the contraband. In doing so, the court essentially directed a
verdict for the
government, as it meant that Defendants could not have
reasonably believed the
orders to investigate were lawful; and (d) The court gave a dual
purpose instruction
that permitted conviction even if the jury found the Defendants
acted in good faith.
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Second, throughout its case the government pressed the legally
erroneous
theory that Defendants corruptly sought to obstruct an FBI
investigation, when the
prosecution was required to show that Defendants corruptly
sought to obstruct a
grand jury proceeding. In United States v. Aguilar, 515 U.S. 593
(1995), the
Supreme Court held that a conviction under 18 U.S.C. 1503
requires both that
the defendant had the specific intent to obstruct a judicial
proceeding, and that
he knew his conduct had the natural and probable effect of
influencing such a
proceeding. Id. at 599, 601. The government nonetheless pressed
its invalid theory
in this case, and the court declined to give a jury instruction
that would have
protected against conviction on that theory. The court also
erred by instructing the
jury that Defendants must have intended to obstruct the federal
grand jury
investigation, which the government equated with the FBIs
investigation,
thereby facilitating its presentation of an invalid theory.
Finally, the court erred by
failing to instruct the jury that Defendants had to know their
conduct had the
natural and probable effect of influencing a grand jury
proceeding; instead, the
court instructed merely that Defendants conduct had to have such
an effect.
Third, the court excluded the testimony of Paul Yoshinaga, LASDs
Chief
Legal Advisor. Yoshinagas testimony that Leavins sought his
advice during the
relevant time period would have been compelling evidence in
support of Leavinss
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contention that he acted in good faith. By extension, the
testimony would likewise
have shown both that other Defendants acted in good faith and
that their belief in
the lawfulness of their actions was reasonable.
Fourth, the court made numerous erroneous evidentiary rulings.
Among
other errors, the court improperly: (a) excluded evidence
rebutting the
prosecutions contention that Brown could have been safely held
at MCJ;
(b) admitted irrelevant and highly prejudicial evidence about
specific instances of
inmate abuse that did not involve Defendants in any way; (c)
limited the cross-
examination of the one witness who provided the scant evidence
that LASD
deputies knew about the writ for Anthony Brown; (d) permitted a
prosecution
witness to testify that LASD lacked jurisdiction to investigate
the FBI while
precluding cross-examination on that subject; (e) refused to
permit defense counsel
to question the AUSA supervising the prosecution team as an
adverse witness; and
(f) excluded evidence about Sheriff Bacas beliefs about the FBIs
commission of a
crime, and his detailed instructions to ICIB in late September,
which were highly
relevant to Defendants mens rea. Each of these errors requires
reversal.
Combined, they denied Defendants their Sixth Amendment right to
present a
complete defense.
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Fifth, the court erred in dismissing Juror Five on the fifth day
of
deliberations. The courts questioning of Juror Five revealed at
least a reasonable
possibility that her difficulties stemmed from disagreements
with another juror
(or jurors) about the merits of the case, thus dismissing Juror
Five violated
Defendants Sixth Amendment right to a jury trial.
Sixth, the court erred in denying Def