Thompson, Et Al, 9th Circuit Appeals Brief 7-24-2015

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

Plaintiff-Appellee,
v.
MARICELA LONG,
Case No. 14-50441

D.C. No. 2:13-cr-00819-PA-7

Plaintiff-Appellee,
v.
GREGORY THOMPSON,
Case No. 14-50442

D.C. No. 2:13-cr-00819-PA-1

Plaintiff-Appellee,
v.
MICKEY MANZO,
Case No. 14-50446

D.C. No. 2:13-cr-00819-PA-4

Plaintiff-Appellee,
v.
SCOTT CRAIG,
Case No. 14-50449

D.C. No. 2:13-cr-00819-PA-6

Plaintiff-Appellee,
v.
STEPHEN LEAVINS,
Case No. 14-50455

D.C. No. 2:13-cr-00819-PA-2
________________________________
Joint Opening Brief of Defendants-Appellants
________________________________
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
WILLIAM J. GENEGO
Law Office of William Genego
2115 Main Street
Santa Monica, California 90405
Telephone: 310-399-3259
Attorney for Gerard Smith
Attorneys for Maricela Long
KEVIN BARRY MCDERMOTT

8001 Irvine Center Drive, Suite 1420
Irvine, California 92618
Telephone: 949-596-0102
MATTHEW J. LOMBARD
Law Offices of Matthew J. Lombard
2115 Main Street
Santa Monica, California 90405
Telephone: 310-399-3259
Attorney for Gregory Thompson

Attorney for Mickey Manzo
KAREN L. LANDAU
Law Offices of Karen L. Landau
2626 Harrison Street
Oakland, CA 94612
Telephone: 510-839-9230
TODD W. BURNS
Burns & Cohan, Attorneys at Law
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: 619-236-0244
Attorney for Scott Craig
Attorneys for Stephen Leavins
TABLE OF CONTENTS
INTRODUCTION ....................................................................................................1
JURISDICTIONAL STATEMENT AND BAIL STATUS....................................3
ISSUES PRESENTED ..............................................................................................4
STANDARDS OF REVIEW.....................................................................................6
STATEMENT OF THE CASE................................................................................8
A. Procedural History ..................................................................................8
B. Statement of Facts ...................................................................................9
1. Background: LASDs Structure and Chain of Command................9
2. LASD Deputies Discover a Cell Phone in the Property of a
High-Risk Inmate. ...........................................................................10
3. The Sheriff Learns of the Contraband Phone and Issues
Marching Orders. ............................................................................13
4. 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............................................18
c) After meeting with the Sheriff, the U.S. Attorneys Office
tells the U.S. Marshal not to act on the writ. ...............................20
d) 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. ............................22
b) ICIB investigators interview corrupt deputy Gilbert Michel. .....24
c) ICIB investigators interview LASD deputy William Courson. ...27
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 ..............................................................................33
ARGUMENT ..........................................................................................................38
I.
The Instructional Errors Denied Defendants The Right to Have the Jury
Consider Their Mens Rea Defenses of Authorization and Good Faith. .......38
A. The Court Erred In Denying an Authorization Instruction and In
Giving an Erroneous Good Faith Instruction........................................39
1. It Was Error to Deny an Authorization Instruction. .......................39
2. 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. ......57

A. Introduction ...........................................................................................57
B. The Governments Five Categories of Obstructive Conduct..........58
1. Category 1 Tightening LASDs Inmate Visiting Rules ................58
2. Category 2 Hiding Brown from the FBI, U.S. Marshal, and
Grand Jury .......................................................................................60
3. Category 3 Witness Tampering ....................................................61
4. Category 4 Investigating the FBI..................................................62
ii
5. Category 5 Threatening to Arrest Agent Marx ............................64

C. The Obstruction Counts of Conviction Should Be Vacated Because
the Government Pressed an Invalid Theory. ........................................64
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. ........................66
1. Section 1503s Mens Rea ................................................................66
2. The Court Relied on an Erroneous Basis in Declining the
Proposed Instructions. ....................................................................68
E. 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 ...........................................................................................77
B. Relevant Background .............................................................................79
1. Key Background Facts ....................................................................79
2. Leavinss Testimony Related to Paul Yoshinaga ............................81
3. 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. ..............................................................................................86
1. Yoshinagas Testimony Was Relevant. ..........................................86
2. Yoshinagas Testimony Was Not Excludable Under Rule 403. .....90
iii
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. ......................................99
IV.
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. .................................................................................101
1. 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
iv
7. The Court Made Other Erroneous Evidentiary Rulings. .............123

B. Considered Cumulatively, the Evidentiary Errors Require
Reversal. ..............................................................................................125
V.
The Courts Dismissal of Juror Five Violated Defendants Sixth

Amendment Jury Trial Right. ......................................................................128
A. Introduction .........................................................................................128
B. Relevant Law .......................................................................................128
C. Relevant Facts .....................................................................................130
D. 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 .........................................................................................138
B. The Defendants Did Not Have Fair Notice that Their Actions
Would Subject Them to Criminal Liability. ........................................140
1. Application of the Fair Warning Factors from Lanier ..................141
a) Vagueness ..................................................................................141
b) Strict construction .....................................................................142
c) 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
v
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. ............152
A. The Judge Exhibited Personal Bias Against the Defendants. .............154
B. The Judge Will Likely Not Be Able to Put Out of His Mind
Several Previously Expressed Erroneous Views. ................................156
CONCLUSION .....................................................................................................158
ADDENDUM .......................................................................................................159
STATEMENT OF RELATED CASES ...............................................................160
CERTIFICATE OF COMPLIANCE ...................................................................161
vi
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
vii
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
viii

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
ix

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

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
xi

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
xii

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
xiii

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
xiv

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
xv

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
xvi

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
xvii
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
xviii
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.
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.
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). Codefendant 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.
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 (8771029), 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 (28953052), 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).
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
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?
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
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 Lanierbased fair notice challenge, review was de novo.
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.
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
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 HighRisk 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.
The LASD rank structure is: Sheriff, Undersheriff, Assistant Sheriff;

Chief, Commander, Captain; Lieutenant, Sergeant, Deputy. ER 4: 1120-25.
10
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
11
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
12
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.
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.
13
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.
14
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.
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.
15
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,
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
16
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
17
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.
18
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.
19
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
20
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
21
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.
22
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: 107071.
23
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.
24
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
25
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
26
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: 94142. 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.
27
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
28
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.
29
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
30
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.
31
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.
32
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.
33
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
34
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 crossexamination 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.
35
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 Defendants pretrial and subsequent
motions for dismissal of the indictment on grounds that Defendants lacked fair
notice that their actions would subject them to criminal liability. The Defendants
actions in protecting Brown from harm and in investigating FBI agents were
ordered by their superiors, including Sheriff Baca. State law enforcement is
entitled to investigate violations of state criminal law, including violations by
federal law enforcement officers. Although federal officers may have an immunity
defense, they can assert it only after removal of state charges to federal courtnot
before arrest. Defendants in this case had no way of knowing that their routine
actions to protect Brown in LASD custody or to investigate violations of state
criminal law would result in federal criminal charges, and due process requires that
their convictions be reversed.
Seventh, the convictions rest on a definition of the term corruptly in 18
U.S.C. 1503 that, while consistent with this Courts current authority, is
36
nonetheless legally mistaken. Defendants raise this issue to preserve it for further
appellate review.
Finally, because the district court made several comments indicating actual
or apparent bias against Defendants, and because the courts words and actions
also showed that the court would be unable to put aside erroneous rulings or
findings in the event of a retrial, the case should be reassigned to a different judge
in the event of a remand.
37
ARGUMENT
I.
The Instructional Errors Denied Defendants The Right to Have the Jury
Consider Their Mens Rea Defenses of Authorization and Good Faith.
The evidence as to what Defendants did was largely undisputed. The
disputed and dispositive issue was not what Defendants did, but their state of mind,
or mens rea, in doing it. The government maintained Defendants acted corruptly
with the unlawful intent to obstruct justice. Unless the charged acts were
committed with that mens rea, they were not unlawful. Defendants maintained that
they reasonably believed their actions were lawfully authorized by their superiors
and performed in good faith. Because 1503(a) is a specific intent crime that only
punishes acts done with a prohibited purpose, a defendant who believes his or her
actions were lawfully authorized (or who otherwise acts in good faith) lacks the
mens rea required for conviction.
The district court made four errors that denied Defendants their right to
have the jury consider their mens rea defenses of authorization and good faith.
First, the court refused to instruct the jury that the government had to prove either
that Defendants actions were not authorized by their superior officers, or that it
was unreasonable for Defendants to believe the orders were lawful. Second, the
court gave a legally incorrect instruction on good faith, which told the jury that
38
good faith was merely one factor to be considered in determining whether

Defendants acted with unlawful intent. Third, the courts instructions erroneously
advised the jury that if the cell phone or other contraband was smuggled into MCJ
at the direction of the FBI, no state law criminal offense could have occurred, and
thus LASD lacked authority to investigate. Fourth, the court gave a dual purpose
instruction which was improper because the competing purposes proffered by the
parties were mutually exclusivea good faith attempt to carry out orders
reasonably believed to be lawful versus an attempt to unlawfully and corruptly
obstruct justice.
A.
The Court Erred In Denying an Authorization Instruction and In

Giving an Erroneous Good Faith Instruction.
1.
It Was Error to Deny an Authorization Instruction.
To establish the mens rea element for a violation of 1503(a), the

government had to prove Defendants acted with the unlawful intent to obstruct
justice. ER 1A: 260-61. Defendants maintained they acted pursuant to their
superiors orders which they reasonably believed were lawful. If Defendants
believed their actions were lawfully authorized, they lacked the mens rea required
for conviction. A defendants reasonable belief that his or her actions are lawfully
authorized provides a complete defense to a specific intent crime. United States v.
Smith-Baltiher, 424 F.3d 913, 924-25 (9th Cir. 2005) (defendants claim that he
39
believed he was authorized to enter the U.S. constitutes a reasonable belief

defense that negates the specific intent required for culpability) (citing United
States v. Petersen, 513 F.2d 1133, 1134-35 (9th Cir. 1975) (defendant charged with
specific intent crime of embezzlement or theft was entitled to instruction on his
defense that he reasonably believed the seller was legally authorized to sell the
property and therefore lacked the necessary specific intent)).
As this Court has explained, in a case like Peterson where a defendant is
charged with a specific intent crime and contends he reasonably believed his acts
were authorized, the mistake of the law is for practical purposes a mistake of
fact. United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir. 1982) (citing United
States v. Barker, 546 F.2d 940, 946-54 (D.C. Cir. 1976)).15 This same principle
applies to a public authority defense used to negate an element of a specific intent
crime. United States v. Doe, 705 F.3d 1134, 1146-47 (9th Cir. 2013).
Consistent with these principles, Defendants requested the following
instruction:
15
See Barker, 546 F.2d at 946, 948 n.23 & n.24 (Wilkey, J., concurring)
(noting that [i]t is a fundamental tenant of criminal law that an honest mistake of
fact negatives criminal intent, even if it the mistake is unreasonable as long as it is
honestly held, and explaining that when applied in the context of a mistake of law,
such as authorization, the mistake or belief must be reasonable).
40
The defendant[] contend[s] that to the extent he committed

the acts charged to constitute the charged crimes, his acts were
authorized by law enforcement officials who he reasonably
believed had such authority. In order for the defendant to be
guilty of the charged offenses, the government must prove
beyond a reasonable doubt that that the defendants acts were
not authorized by a law enforcement officer or that it was not
reasonable for the defendant to believe the law enforcement
officer had such authority.
ER 1A: 70. The court denied the request without comment. ER 1A: 136, 152-53.
This instruction correctly stated the law and accurately framed the defense
position.
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 defendant in
Doe was charged with controlled substances offenses, a general intent crime where
the government needed only to prove that Doe had knowledge of the facts
constituting the charges. Id. at 1145. Doe thus sought to use a public authority
defense to excuse[] conduct that would otherwise be punishable, not to negate
an element of the offense. Id. at 1144 (quoting Dixon v. United States, 548 U.S. 1, 6
(2006)). Because Does use of a public authority defense would not have negated
41
an element of the offense, he had the burden of proving the defense. Doe, 705 F.3d
at 1146.
This Court explained, however, that a public authority defense may also
negate[] an element of the charged offense that the Government must prove
beyond a reasonable doubt. Id. at 1147 (internal quotation marks omitted). For an
offense such as obstruction of justice, which requires specific intent, the defense of
public authority negates the mens rea element, just as it would in a mistake of fact
authorization defense. Because a public authority defense in that circumstance
negates an element of the offense, the government bears the burden of proof. Id.
([I]f a defense negates an element of the crime, rather than mitigates culpability
once guilt is proven, it is unconstitutional to put the burden of proof on the
defendant.) (quoting Walker v. Endell, 850 F.2d 470, 472 (9th Cir 1987)).
Defendants were entitled to an instruction on this defense because it was
supported by the law and by evidence in the record. Doe, 705 F.3d at 1144
(defendant entitled to instructions related to [his] defense theory so long as there
is any foundation in the evidence for the theory, and the instruction is
supported by the law). The instruction was supported not only by Does
recognition that a public authority defense can be used to negate an element of an
offense, but also by the principle that a reasonable belief that ones acts have been
42
lawfully authorized negates the mens rea element of a specific intent crime. SmithBaltiher, 424 F.3d at 924; Petersen, 513 F.2d at 1134.16
Ample evidence supported the Defendants authorization defense. First,
Smith and Manzo, who as deputies were at the bottom of the chain of command,
did not have authority to issue orders to other deputies, and it was apparent that
they were carrying out orders from superior officers. ER 2: 833-34; see also ER 7:
2011 (advising other OSJ deputies about the inmate we are tasked with
protecting) (emphasis added). All of the actions taken with respect to Brown
were ordered by their superior officers. The Sheriff ordered Brown to be isolated
and directed that no one was allowed access to him without approval. ER 4: 1292;
ER 5: 1439. Captain Carey obtained authorization to change Browns name. ER 4:
1307-08. Leavins ordered Brown be moved to a secure hospital area, and Leavins
16
Recognition of such a defense is especially appropriate in the context of

subordinate law enforcement officers like Defendants who are expected to obey all
lawful orders, and are not in a position to second-guess their superiors. See
Aguilera v. Baca, 510 F.3d 1161, 1167, 1169 (9th Cir. 2007) (noting that police
departments act as the law enforcement arm of the state, and the resulting
restrictions on officers in the paramilitary environment of a police agency); cf.
Barker, 546 F.3d at 948 (Wilkey, J., concurring) (noting that a reasonable belief
authorization defense is especially appropriate when a citizen is under a legal
obligation to respond to a proper summons and is in no position to second-guess
the officers determination that an arrest is proper).
43
and Carey ordered Brown be moved to a station jail. ER 4: 1305-07; ER 5: 14581466. Leavins ordered that Brown guarded by trusted deputies. ER 5: 1459.
Second, it was reasonable for Smith and Manzo to believe the orders were
lawful. There were legitimate law enforcement reasons for the actions, and it was
not uncommon for inmates to be moved to a station jail and held under a different
name for safety reasons. ER 4: 1305, 1307-08, 1374; ER 5: 1460, 1465-67; RT 281722.
Similarly, there was ample evidence the actions of Craig and Long were
authorized by Leavins, and that Leavinss actions, and the orders he issued to the
other Defendants, were authorized by his superiors.
Leavins ordered Craig and Long to interview Brown and attempt to identify
the deputy who provided the phone. RT 3251-52. Baca and Leavins instructed
Craig and Long to make contact with Marx and attempt to determine whether the
FBI had authorized the introduction of contraband. ER 5: 1516-17.17 Carey was
aware of and approved both the investigation generally, and the plan to contact
17
Indeed, there was evidence, excluded by the court, that in a meeting with
Tanaka, Carey and Leavins, Baca instructed ICIB to try and interview Marx and
said, Just dont put handcuffs on her. Id.; see also ER 4: 1329-33.
44
Marx specifically. ER 5: 1514-17. Baca directed Leavins to have Craig and Long
contact Marx at her residence and attempt to conduct an interview. ER 5: 1516-17.
The government argued the requested instruction was improper because a
local officer cannot authorize someone to obstruct a federal grand jury
investigation. ER 1A: 71. That is beside the point. Defendants did not contend
they were authorized to obstruct justice, but instead that they did not commit the
crime of obstruction of justice because they reasonably believed their actions were
lawfully authorized. If the government could not disprove authorization, it failed to
prove that the defendants possessed the corrupt intent required for conviction.
The error denied Defendants their right to have the jury instructed on their
defense. Doe, 705 F.3d at 1144. No equivalent instruction was provided.
The failure to correctly instruct the jury on a defense that has support in the
evidence is reversible error. United States v. Burt, 410 F.3d 1100, 1104 (9th Cir.
2005) (reversible error not to instruct on defense theory). It is not subject to
harmless error analysis.18 United States v. Zuniga, 6 F.3d 569, 571 (9th Cir. 1993).
18
Because the only alleged object of the conspiracy charge was to obstruct
justice in violation of 1503(a), the instructional errors as to mens rea defense to
the obstruction charge infected the conspiracy charge as well. United States v. Kim,
65 F.3d 123, 126 (9th Cir. 1995) (An error in construing the requisite intent for the
underlying offense infects the intent for the conspiracy count.)
45
2.
The Courts Altered Good Faith Instruction Was Incorrect.
The parties submitted their proposed instructions on April 30, 2014, as

required by the court. CR 206. The first instruction conference did not take place
until June 18, the day before the government rested its rebuttal case. ER 1A: 98.
Defendants requested the court give the same good faith reliance instruction it had
given in codefendant Sextons trial.19 ER 1A: 125, 146. A good faith belief in the
legality of ones actions is a defense to a specific intent crime. See United States v.
Moran, 493 F.3d 1002, 1013 (9th Cir. 2007) (Because there is an intent element in
fraud cases, good faith belief in legality also provides a defense to the fraud
counts.).20
19
The instruction in Sexton was the following: Evidence that a defendant

relied, in good faith, on the orders that he received from his superior officers, and
that he reasonably and objectively believed those orders to be lawful, would be
inconsistent with an unlawful intent. ER 1A: 199.
20
Perhaps the simplest explanation as to why this is so is the one provided in

the Comment to the Third Circuits Good Faith Instruction: Good faith is a
defense whenever the defendants good faith is inconsistent with a finding that the
defendant acted with the mental state required by the definition of the offense
charged. Good faith exculpates when, if the jury finds the defendant acted in good
faith, it would necessarily have to find that defendant did not act with the required
mental state. Third Circuit, Model Jury Instructions, 5.07 Good Faith Defense,
Comment.
46
The court did not rule on the defense request, and instead told the defense to
discuss the request with the government. ER 1A: 146.21 The defense did so and
appraised the court of their continuing efforts and request for the instruction. ER
1A: 153, 190; see also RT 3630. The defense and prosecution reached agreement
and submitted substantively equivalent versions of a good faith instruction to the
court on Monday morning, June 23. ER 1A: 192, 200-01, 203-04.22
The following morning, the court and the parties discussed the good faith
instruction. Moments before it was to charge the jury, the court read an altered
version of the proposed good faith instruction. ER 1A: 227-241. The court
changed the instruction by adding a clause stating that evidence that a defendant
relied in good faith on orders of his superiors was evidence [the jury] may
consider in determining whether the Government has proven beyond a reasonable
doubt that the defendant had the required unlawful intent. ER 1A: 232. None of
the parties requested the alteration made by the court.
21
The defense continued to advise the court they were attempting to reach
agreement with the prosecution for the court to give the Sexton good faith
instruction, and renewed their request for the instruction. See ER 1A: 153, 190; RT
3630.
22
The only difference was the order of the paragraphs. Compare ER 1A: 203,
with ER 1A: 204.
47
As given, the instruction differed substantively from both the Sexton good
faith instruction and the instructions requested by the defense and government,
because the court added the clause underlined below:
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 an unlawful intent and is
evidence that you may consider in determining if the
government has proven beyond a reasonable doubt that a
defendant had the required unlawful intent.
ER 1A: 262-63 (underlining added); compare ER 1A: 203-04.
The altered instruction is legally incorrect and logically flawed. It is legally
incorrect because if a defendant relied in good faith on orders of his or her superiors
and believed them to be lawful, it negated unlawful intent and provided a complete
defense. See Peterson, 513 F.2d at 1134. It is logically flawed because if good faith
and unlawful intent are inconsistent, and a defendant relied in good faith on orders
he or she reasonably believed were lawful, the defendant could not have unlawful
intent. The government acknowledged this by stating the obversei.e., if you
have a corrupt intent, you dont have good faith. ER 1A: 237.
As defined by the court, good faith was not a defense, but merely evidence
the jury could consider in deciding whether the government proved unlawful
48
intent. Thus, under the altered instruction, Defendants could have acted in good
faith yet still be convicted. The alteration made the instruction consistent with the
dual purpose or mixed motive instruction, to which Defendants objected. ER 1A:
49-55, 224-27, 235. The Defendants objected to the alteration in the good faith
instruction, noting that they were preserving our earlier objections to the mixed
motive objection. ER 1A: 233, 240-41.23
The court notably did not use the altered version of the good faith
instruction in the Sexton retrial, the only apparent explanation being that it
recognized its error. Instead, the court gave the same good faith instruction it had
in the first Sexton trial. ER 1A: 205.
The error was especially prejudicial because the court altered the proposed
instruction after closing arguments and just prior to instructing the jury. See United
States v. Liu, 731 F.3d 982, 988 (9th Cir. 2013) (where court failed to distribute
copy of finalized jury instructions until just before instructing the jury, courts
procedure casts serious doubt upon its compliance with Rule 30(d) and due
23
Objection to the alteration was also preserved by the written request. See
United States v. Castagana, 604 F.3d 1160, 1163 n.2 (9th Cir. 2010) (challenge to
instruction preserved as defendant had made his point clear by his requested
instruction).
49
process). The defense summation relied on the general principle that good faith
is inconsistent with unlawful intent, which the parties had agreed upon and which
the court had given in Sexton. ER 6: 1813 ([I]f someone is following orders that
they believe are lawful and they reasonably believe in good faith that theyre lawful,
that . . . is inconsistent with unlawful intent.). Because the court altered the
proposed instruction after argument, the defense was unable to address the
difference during summation.
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.
Even if the court had given the requested instruction on authorization and
correctly instructed the jury on good faith, reversal would be required because the
courts instructions erroneously advised the jury that local officers could not
investigate the introduction of contraband into MCJ if it was directed by the FBI.
Defendants maintained from the outset that they had the right to investigate
potential violations of state law by federal agents. CR 149. This principle was
critical to their mens rea defenses of authorization and good faith, and they flagged
the issue by filing a motion in limine. Id. Defendants also requested an instruction,
which the court gave, telling the jury that [a] local officer has the authority to
50
investigate potential violations of state law. This includes the authority to

investigate potential violations of state law by federal agents. ER 1A: 256.
During the first instructions conference, the court indicated that it intended
to instruct the jury that the FBIs introduction of contraband into the jail was not a
violation of state law. ER 1A: 111, 112-13. The defense objected, explaining the
instruction was incorrect, and would also undermine the defense that LASD had
authority to investigate. ER 1A: 111. The court responded that 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, ballgames over. ER 1A: 112; see also ER 1A:
114-19; 138.
The court made known its intention to instruct the jury accordingly, even as
the defense continued to object. ER 1A: 213-223 Once again, the court did not
settle on the instruction it was going to give until after the summations and minutes
before it charged the jury. ER 1A: 208, 223.
The court instructed as follows:
Youve heard testimony about whether or not federal agents
violated California Penal Code sections involving the possession
of narcotics or a cellular phone in a custody facility. These . . .
sections require the possession or introduction of contraband to be
unauthorized in order for crimes to occur. If Anthony Brown
51
possessed any contraband including a cellular phone at the

direction of the FBI, such possession or introduction of contraband
would be authorized and no violation of these California Penal codes
would have occurred.
ER 1A: 257 (emphases added).
This instruction is legally incorrect for two reasons.24
First, the instruction was wrong is because it states that for these crimes to
occur, the conduct must be unauthorized, so that the conduct is presumed to be
lawful and proof of lack of authorization is an element of the offense. That is wrong
with respect to Penal Code 4573(a) because according to California rules of
construction, the except when otherwise authorized by law clause makes
authorization an affirmative defense. See People v. George, 30 Cal. App. 4th 262, 275
(1994) (holding authorization is a defense to comparable provision of 4573.6).
24
The California Penal Code sections referenced by the instruction,

4573(a) and 4575(a), are the offenses that were the subject of the LASDs
investigation. Section 4573(a) makes it a crime to introduce a controlled substance
into a correctional facility [e]xcept when otherwise authorized by law, or when
authorized by the person in charge of the prison . . . or by an officer of the
institution empowered by the person in charge to give the authorization, and
4575(a) provides that a person who possesses a cellular phone inside a
correctional facility who is not authorized to possess that item is guilty of a
misdemeanor. ER 7: 2158-59.
52
The instruction is wrong with respect to 4575(a) because inmates are prohibited
by California regulations from possessing a cell phone. Their possession is by law
unauthorized and to establish the crime, no proof of lack of authorization would be
required.
Second, the instruction is incorrect because it wrongly presumes that the
Supremacy Clause is a source of power that gives the FBI the right under these
Penal Code sections to authorize the conduct that they otherwise prohibit. See
Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015). The
Supremacy Clause does not grant federal actors the power to exercise authority
under the California Penal Code. See id. The Court explained that the Supremacy
Clause is not the source of any federal rights, but creates a rule of decision
and instructs courts what to do when state and federal law clash. Id. (internal
quotation marks and citations omitted). Put simply, that the introduction or
possession of contraband was directed by an FBI agent does not meant it was
authorized within the meaning of 4573(a) and 4575(a), and did not
automatically or necessarily mean no crime was committed.25
25
The Supremacy Clause, together with common law principles of

immunity, does provide federal agents with an immunity defense which protects
them from being convicted of a state crime where the elements of the defense are
53
Yet, the instruction provided that a direction by the FBI to introduce or

possess contraband rendered the conduct authorized within the meaning of
these statutes. But neither statute grants the FBI such power to authorize the
conduct, nor does the otherwise authorized by law clause. The government
nonetheless asserted, [O]f course, the FBI can authorize someone to possess that
item. ER 1A: 115.
This erroneous instruction was devastatingly prejudicial, because under the
instructions, if there was no crime, then Defendants could not investigate. ER 1A:
256 (instructing the jury that a local officer has the authority to investigate
potential violations of state law.). Contrary to the courts stated view
(ballgames over), local officers did not lose the right to investigate after
learning the phone belonged to the FBI.26
established. See Kentucky v. Long, 837 F.2d 727, 752 (6th Cir. 1988) (affirming
dismissal of state criminal charges against federal agent based on Supremacy Clause
immunity). That principle cannot support the courts instruction because the
determination as to whether a crime was committed would depend on whether the
elements of the defense were established, and not simply whether the FBI directed
the introduction or possession of the contraband. See infra at Section V.
26
The courts instruction did not even require a local officer to know that
the conduct was authorized by the FBI. As it turns out, authorization was obtained
only for the bribe payment paid to Michel, not for introducing the phone. ER 3:
963-67, 1021, 1045-46, 1085.
54
Given that it was undisputed that Brown possessed the contraband at the
direction of the FBI, the courts instructions essentially told the jury Defendants
could not investigate. The courts instruction thus effectively foreclosed
Defendants authorization and good faith defenses. If LASD could not investigate
the introduction of the contraband, Defendants could not credibly claim they
reasonably believed their actions were lawfully authorized or that they acted in
good faith.
C.
The Improper Dual Purpose Instruction Further Undermined the

Defendants Right to Have the Jury Consider Their Mens Rea
Defense.
The court further undermined the good faith defense by giving a dual
purpose instruction over defense objection:
The Government need not prove that the defendants sole or
even primary purpose was to obstruct justice so long as the
Government proves beyond a reasonable doubt that one of the
defendants purposes was to obstruct justice. The defendants
purpose of obstructing justice must be more than merely
incidental.
ER 1A: 263; see also ER 1: 49-55.
Dual purpose instructions have been upheld where defendants contend they
acted for a permissible purpose that does not rule out a simultaneous prohibited
55
purpose. See, e.g., United States v. Coyne, 4 F.3d 100, 113 (2d Cir. 1993) (upholding
charge as entirely appropriate in light of [the defendants] argument that he was
motivated by friendship); United States v. Banks, 514 F.3d 959, 969 (9th Cir.
2008) ([p]eople often act with mixed motives). In such circumstances, proof
of the existence of one purpose [did] not necessarily rule out the existence of
another purpose. United States v. LaRouche Campaign, 695 F. Supp. 1265, 1275
(D. Mass. 1988); see also United States v. Woodward, 149 F.3d 46, 70-71 (1st Cir.
1998); Coyne, 4 F.3d at 113.
In this case, the competing purposes were mutually exclusive. The
defendants could not act in good faith for the purpose of carrying out what they
reasonably believed were lawful orders, and simultaneously act corruptly with the
unlawful intent to obstruct justice.
The improper dual purpose instruction compounded the effect of the
erroneous good faith instruction. By explicitly allowing for dual purposes to be
found in the context of the competing positions of the defense and government, the
instruction validated and reinforced the view that even if Defendants were acting in
good faith and for the purpose of carrying out orders they reasonably believed were
lawful, they could still be guilty.
56
II.
The Jury Instructions Allowed Conviction on an Invalid Legal Theory.

A.
Introduction
Section 1503 prohibits acting corruptly . . . with the intent to obstruct the
due administration of justice. A defendants intent must be to obstruct a judicial
proceeding. Haili v. United States, 260 F.2d 744, 745-46 (9th Cir. 1958). [A]
defendant cannot be convicted under section 1503 for impeding the function of the
FBI. Obstruction of justice requires acts to thwart some aspect of the
Governments judicial function. An investigation conducted by the FBI . . . does
not constitute a judicial proceeding. United States v. Pham, 960 F.2d 1391, 1400
(9th Cir. 1991).
In violation of this limitation the government led the jurors to believe they
could convict under 1503 if they concluded that the Defendants intended to
obstruct an F.B.I. investigation. See, e.g., ER 2: 758. They relied on five
categories of so-called obstructive conduct, related almost exclusively to the
FBIs investigation. ER 6: 1747, 1756, 1788. In this way, the government
impermissibly broadened 1503. The government claimed the broadening was
justified because the FBI was acting as an arm of the grand jury. But that
argument was based on a flawed reading of United States v. Aguilar, 515 U.S. 593
(1995). And, if accepted, the governments position would eliminate the core
57
intent requirement under 1503the intent to obstruct a judicial proceeding

and allow conviction based on the intent to obstruct an FBI investigation.
The defense sought jury instructions that would have protected against
conviction on this invalid theory, but the court rejected them. That, and two other
instructional errors, permitted the jury to convict based on an invalid theory.
Reversal is required.
B.
The Governments Five Categories of Obstructive Conduct

1.
Category 1 Tightening LASDs Inmate Visiting Rules
The first category of obstructive conduct involved the allegations that

defendants Thompson, Leavins, Smith, and Manzo attempt[ed] to prevent the
FBI from interviewing or contacting [Brown] . . . knowing that he was being utilized
by the FBI to investigate illegal acts being committed by LASD personnel at the
MCJ. ER 2: 606. Specifically, the government introduced evidence that: (1) on
August 18, 2011, LASD deputies learned that the person who was heard on a
recorded jail call telling Brown that he would have his phone soon was connected to
the FBI; (2) on that same day, Thompson advised Sergeant Bayes in an email that
Brown would not be allowed any visitors without Thompsons approval, including
visitors from outside law enforcement agencies; and (3) in the ensuing days,
Thompson, at the direction of the Sheriff and Undersheriff, drafted new rules for
visits with inmates by outside law enforcement officers. ER 2: 668, 972; ER
58
5: 1540, 1548; ER 7: 1923; RT 558, 2154. In its opening statement, the government
pressed its view that this conduct constituted obstruction, telling the jury that
these six defendants began to conspire to obstruct justice on August 18, and that
the first overt act was Thompsons August 18 email to Bayes, which, the
government claimed, was intended to keep out the FBI. ER 2: 609, 629-30.
The government made the same claim in closing, saying that its clear from the
beginning . . . what their intent is. Its clear from everybodys focus on the FBI on
the federal investigation, keeping the FBI out, specifically the FBI. ER 6: 1794.
The claim that by drafting and enforcing the new visiting rules the
Defendants intended to keep out the FBI is questionable, because on August 18
LASD personnel knew only that a person who had some connection to the FBI had
told Brown, during a monitored jail call, that he would soon receive his cell phone.
But even if the governments theory that Defendants sought to keep out the FBI
were supported by the record, it would still be legally insufficient. The government
was required to show intent to obstruct a grand jury proceeding. There is no
evidence that on August 18 any of the Defendants knew that Brown was connected
to a grand jury proceeding. See ER 2: 683.
59
2.
Category 2 Hiding Brown from the FBI, U.S. Marshal, and

Grand Jury
The government also alleged that after the writ was issued requiring Browns
grand jury appearance, defendants Thompson, Leavins, Smith, and Manzo moved
Brown to hide him from the FBI, USMS, and the federal grand jury. ER 2: 606;
ER 5: 1556; ER 6: 1739, 1818. While this could be a valid legal theory if the purpose
was to keep Brown from appearing at a federal grand jury proceeding, it was
factually weak. Though the government did not clarify its theory in this context, it
was, essentially: (1) the USMS was tasked with bringing Brown to his grand jury
appearance; (2) the USMS notified LASD of the appearance by serving the writ on
LASD; and (3) Defendants sought to hide Brown from the USMS so that he could
not be brought to the grand jury appearance. But there is no evidence that anyone
sought to prevent Brown from appearing in front of the grand jury on September 7.
Yolanda Baines at the USMS received a copy of the writ from the United
States Attorneys Office sometime in August 2011, and was tasked with arranging
Browns transportation to the grand jury on September 7. See ER 2: 603, 769-770.
Baines telephoned MCJ twice to coordinate Browns pickup, and was told Brown
was in LASD custody but had to be medically cleared before going to the grand jury
appearance. ER 2: 773. AUSA Middleton thereafter told Baines that the USMS
did not have to bring Brown to appear before the grand jury on September 7, and
60
the FBI was informed that the writ had been withdrawn. ER 4: 1248, 1269-71,
1280. Thus, there was no hiding involvedthe USMS was told not to pick up
Brown for his September 7 appearance.
Had the jurors been properly instructed to focus solely on whether
Defendants intended to keep Brown from appearing before the grand jury on
September 7, they likely would have acquitted. Hiding Brown from the FBI,
standing alone, was an invalid theory.
3.
Category 3 Witness Tampering
The government also claimed that Defendants Leavins, Craig, and Long
attempt[ed] to convince potential witnesses and informants not to cooperate with
the Federal Investigation by suggesting [to Deputies Michel and Courson] that
the FBI was and would be lying to them, manipulating them, blackmailing them,
and threatening them, and by [s]uggesting [to Brown] . . . that the FBI had
abandoned him. ER 2: 607.
To support this allegation with respect to Michel and Courson, the
government played portions of their August 30, 2011 interviews, including negative
comments about the FBI. See ER 3: 883, 876, 946; ER 7: 2060, 2064, 2076-77,
2083-84; RT 3387, 3390-93; RT 3463-64, 3469. The government pressed this point
in its opening and closing arguments, stating that the Defendants declared war
61
on the FBI and the United States Attorneys Office by driv[ing] a wedge
between [Michel and Courson] and . . . the FBI, in an effort to convince those
men not to cooperate with the FBI. ER 2: 633; ER 6: 1738, 1744, 1748-49, 1779,
1818, 1820, 1847, 1851. The government made the same claims with respect to
Brown. See ER 2: 634; ER 3: 1903-05; ER 6: 1762, 1774; ER 7: 2041.
Although the government repeatedly told the jury that Defendants conduct
in this context amounted to witness tampering, it did not allege that Defendants
actually tampered with a witness in a grand jury proceeding (or any judicial
proceeding). That was an offense theory that the government could not support,
because as of August 2011 Courson and Michel were not grand jury witnesses. See
United States v. Washington Water Power Co., 793 F.2d 1079, 1084 (9th Cir. 1986)
(In a [ 1503] case involving interference or tampering with a witness, it must also
be shown that the defendants knew that the person was expected to be called to
testify.) (internal quotation marks omitted). Instead, the government claimed
that the witness tampering was directed at the FBIs investigation. This is an
invalid theory.
4.
Category 4 Investigating the FBI
The government also claimed that defendants Leavins, Craig, and Long
engaged in obstructive conduct when they attempt[ed] to determine the
62
manner and extent of the Federal Investigation, including by seeking a court

order . . . from a California Superior Court to compel the FBI to provide materials
related to the FBIs jail investigation. ER 2: 607-08. During trial, the government
introduced a great deal of evidence about Craigs efforts to obtain the superior
court order, and about LASD personnel following FBI agents to try to learn more
about the FBIs investigation. See ER 3: 994, 1098, 1101-0; RT 1949, 2053, 2065,
2069. The government repeatedly argued that these activities were illegal because:
(1) Defendants knew they lacked jurisdiction to investigate the FBI; (2) the
supremacy clause barred such an investigation; and (3) the U.S. Attorney had
told LASD to butt out. See ER 5: 1536, 1586; ER 6: 1695; RT 1949, 1955, 2057,
2073, 3238, 3247-50. In closing, the government told the jury that the Defendants
had ample evidence that they could not investigate the FBI. ER 6: 1786; see also
ER 6: 1755-56.
It is hard to understand how investigating the FBI could amount to
obstructing an FBI investigation, much less obstructing a grand jury proceeding.
Regardless, the important point, once again, is that the government relied on an
invalid theory.
63
5.
Category 5 Threatening to Arrest Agent Marx
The government also claimed that defendants Craig and Long . . .

attempt[ed] to intimidate . . . and coerce [Agent Marx] into providing details
concerning the Federal Investigation by telling her she was going to be arrested.
ER 2: 608; see also ER 1A: 172. During trial, the government introduced recordings
of the statements that Craig and Long made to Marx and to her supervisor. See ER
3: 997, 1001, 1004; ER 4: 1287; ER 5: 1431; ER 6: 1720; ER 7: 2103, 2105, 2107; RT
1959. In closing, the prosecutor said, [T]heyre threatening [Marx] in an attempt
to change the course of the investigation, reveal the investigation, reach an
agreement about the investigation, or just be threatening. ER 6: 1804-05.
As the prosecutors strained argument shows, it is unlikely that a reasonable
person would think that Craigs statements to Agent Marx would change the
course of even the FBIs investigation. More important, there is no viable theory
as to how this conduct could be viewed as being directed at obstructing a grand jury
proceeding.
C.
The Obstruction Counts of Conviction Should Be Vacated Because

the Government Pressed an Invalid Theory.
The jury returned a general verdict, so there is no way to know if it relied on

the invalid theory constantly pressed by the government, or the potentially valid
theory that Defendants endeavored to keep Brown from making his September 7,
64
2011 grand jury appearance. Where a jury returns a general verdict that is
potentially based on a theory that was legally impermissible . . . , 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). Accordingly, all of the obstruction-related
counts of conviction should be vacated.
There is a related issue that bears raising here. As discussed above, one of
the governments theories was that Defendants obstructed justice by tampering
with witnesses. The Defendants assert that tampering even with grand jury
witnesses is not a legally permissible theory under 1503, and this is another basis
for reversing the obstruction counts. This Court has held that tampering with the
testimony of a grand jury witness may support a conviction under 1503. See
United States v. Ladum, 141 F.3d 1328, 1337-38 (9th Cir. 1988). But the Second
Circuit has reached a contrary conclusion. See United States v. Hernandez, 730 F.2d
895, 898 (2d Cir. 1984). The issue is raised here to preserve it for potential later
appellate review.
65
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.
To protect against conviction on the governments invalid theory,
Defendants asked the district court to instruct the jury that to satisfy 1503s
requirement that they acted corruptly . . . with the intent to obstruct the due
administration of justice, the government must show that Defendants intended to
obstruct a grand jury proceeding, and that having an intent to obstruct an FBI
investigation was not sufficient. ER 1A: 37, 40, 131. The court declined, without
explanation. ER 1A: 131. Presumably the court relied on the governments
assertion that the Defendants proposed instructions would exclude [the] jury
from finding obstruction even if the federal agents were acting as arms of the grand
jury. ER 1A: 38. Before responding to that argument, it is helpful to consider the
mens rea showings necessary to convict under 1503.
1.
Section 1503s Mens Rea
As noted above, the portion of 1503 relied on by the government states,

Whoever . . . corruptly . . . influences, obstructs, or impedes, or endeavors to
influence, obstruct, or impede, the due administration of justice, shall be punished
as provided in subsection (b). This Court has defined corruptly to mean, at a
minimum, that the defendant acted with the specific intent to obstruct the
66
administration of justice. See United States v. Rasheed, 663 F.2d 843, 852 (9th Cir.
1981). As for the meaning of the administration of justice, the Court long ago
narrowed the scope of that phrase so that it includes only a judicial proceeding, and
thus intending to obstruct a government agencys investigation is insufficient to
convict. United States v. Brown, 688 F.2d 596, 598 (9th Cir. 1982). Accordingly,
the [s]pecific intent to impede [a judicial proceeding] is an essential element of
the offense. United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1972).
In United States v. Aguilar, 515 U.S. 593, 599 (1995), the Supreme Court
grafted an additional mens rea/materiality requirement onto 1503, holding that a
defendant must also have known that his conduct was likely to influence a judicial
proceeding. Thus to violate 1503, a defendant must: (1) have the specific intent
to obstruct a judicial proceeding; and (2) know that his conduct has the natural
and probable effect of obstructing that proceeding. Id. at 601; United States v.
Triumph Capital Grp., Inc., 544 F.3d 149, 166 n.16 (2d Cir. 2008).
There is a point that bears noting here, because it may be at the root of the
governments mistaken arm of the grand jury argument, which is addressed
below. In Aguilar, the Court seemed to suggest, puzzlingly, that there was some
sort of equivalence between the two forms of mens rea set out above. See id. But as
the Second Circuit explained clearly and persuasively in Triumph Capital, it is
67
nonetheless apparent that the two mens rea showings are different, and that a jury
must be instructed with respect to both. See id.
2.
The Court Relied on an Erroneous Basis in Declining the Proposed

Instructions.
As mentioned above, the government asserted that Defendants proposed

instructions would exclude [the] jury from finding obstruction even if the federal
agents were acting as arms of the grand jury. ER 1A: 38. For this argument, the
government relied on the following language from Aguilar: The Government did
not show here that the agents acted as an arm of the grand jury, or indeed that the
grand jury had even summoned the testimony of these particular agents. 515 U.S.
at 600. From this, the government apparently reasoned: (1) normally, to convict
under 1503 the government must show that a defendant intended to obstruct a
judicial proceeding; (2) the quoted language from Aguilar provides an alternative
way to make this showing; and (3) under that alternative, a conviction under 1503
may be based on a showing that the defendant intended to obstruct an FBI
investigation, so long as it is shown that the FBI was acting as an arm of the grand
jury.
This reasoning relies on the false premise that Aguilar altered the core mens
rea of 1503, such that the [s]pecific intent to impede a grand jury proceeding is
68
no longer an essential element of the offense. See Ryan, 455 F.2d at 734. But as
the Second Circuit explained, Aguilar did not eliminate that element. Instead, it
added a second mens rea to 1503a showing that the defendant knew that his
conduct had the natural and probable effect of obstructing the judicial
proceeding. See Triumph Capital, 544 F.3d at 166 n.16. That is the context in
which Aguilar referred, in dictum, to the potential significance of agents acting as
arms of the grand jury. Understood in context, what that language means is 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 (i.e., to satisfy Aguilars
mens rea/materiality element) if it is shown that the defendant made a false
statement to an agent while knowing that the agent was acting as an arm of the grand
jury. With the quoted language from Aguilar understood in its proper context, it is
apparent that the governments objection to the Defendants proposed instructions
was off-base, because (1) the proposed instruction focused on the core intent
required to convict, whereas (2) the arm of the grand jury language relied on by
the government relates to Aguilars mens rea/materiality element.
The government also relied on United States v. Macari, 453 F.3d 926 (7th
Cir. 2006), which quoted the arm of the grand jury language from Aguilar. But
Macari quoted that language in a context entirely different from the context in
69
which that language was used in Aguilar. Specifically, in Macari the court relied on
the arm of the grand jury language to address the defendants claim that the
government failed to establish there was a pending judicial proceeding, a showing
that is required by the Supreme Courts opinion in Pettibone v. United States, 148
U.S. 197 (1893). Macari, 453 F.3d at 936 (emphasis added). After dealing with that
issue, and concluding that there was a pending judicial proceeding, Macari turned
to the next issue by stating, In addition to establishing a pending judicial
proceeding, 1503 requires the prosecution to demonstrate that [the defendant]
corruptly intended to impede the administration of the judicial proceeding in
question. Id. at 939. The court held that there was no question that the defendant
had that intent (i.e., the core intent to convict under 1503), and that he knew that
his actions would have the natural and probable effect of affecting the grand jury
proceedings (i.e., the mens rea/materiality element required by Aguilar), because
the defendant specifically instructed a witness to lie to the grand jury. Id. at
940.
Thus, as an initial matter it appears that the court in Macari did not
appreciate the context in which Aguilar used the arm of the grand jury language.
More important, however, Macari hurts the governments position because it
confirms the conclusion that regardless of whether the FBI was acting as an arm of
70
the grand jury, the government must prove that the defendant intended to obstruct
a grand jury proceeding, not solely that the defendant intended to obstruct an FBI
investigation. That was the thrust of the instructions Defendants requested.
But even if it were appropriate to rely on an arm of the grand jury theory
to show that an intent to obstruct an FBI investigation amounted to an intent to
obstruct a grand jury proceeding, the government could not rely on that theory
without the jury being properly instructed on it, a point that defense counsel made
in the district court. See ER 1A: 39. At a minimum, that would have required
instructing the jurors that the government had to show the Defendants knew all
three of the following: (1) there was a grand jury investigation; (2) the FBI
agents were integrally involved in the grand jury investigation, meaning that the
FBI investigation and the grand jury investigation were one and the same, United
States v. Fassnacht, 332 F.3d 440, 449 (7th Cir. 2003) (emphasis in original); and
(3) the investigation was undertaken with the intention of presenting evidence
before the grand jury. Macari, 453 F.3d at 937 (internal quotation marks omitted).
Even the government acknowledged that it had to establish these facts to rely on an
arm of the grand jury theory. ER 1A: 46. Yet the jury was not so instructed.
Instead, during his testimony the case agent told the petit jury, I am an arm
of the grand jury, and in closing the prosecutor said that the FBI agents were
71
acting as arms of the grand jury. ER 2: 688; ER 6: 1756. It cannot be so easy to

obliterate the requirement that the government must show that the Defendants
intended to obstruct a grand jury proceeding, not an FBI investigation. Particularly
troubling is that the government ultimately led the jurors to believe that it did not
even have to show that what the Defendants did was aimed at obstructing an FBI
investigationmerely investigating FBI agents became a crime. See, e.g., ER 6:
1690.
In sum, the instructions that Defendants requested correctly stated the law,
and, under the circumstances, were necessary. On the other hand, the
governments objection was misguided, and at best counseled for instructing the
jury on an arm of the grand jury theorya theory that would have been difficult,
or impossible, to satisfy in this case. Accordingly, the district courts failure to give
Defendants requested instructions was reversible error. See United States v.
Marguet-Pillado, 648 F.3d 1001, 1008 (9th Cir. 2011).
E.
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.
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. The
72
use of the phrase the federal grand jury investigationrather than a federal
grand jury proceedingwas contrary to the relevant case law, and facilitated
conviction on the governments invalid theory of liability.
In Haili v. United States, 260 F.2d 744 (9th Cir. 1958), and in several cases
since, this Court has held that a defendants intent to obstruct justice must be
directed at a specific judicial proceeding. See, e.g., id. at 745-46; United States v.
Brown, 688 F.2d 596, 598 (9th Cir. 1982); United States v. Ryan, 455 F.2d 728, 734
(9th Cir. 1972); United States v. Metcalf, 435 F.2d 754, 756-57 (9th Cir. 1970).
Because the district court in this case used the phrase the federal grand jury
investigation, the government was not required to show that Defendants intended
to obstruct a specific grand jury proceeding. The use of the word the is
particularly problematic, because it is far from clear what the federal grand jury
investigation was. One thing is clear, howeverjurors could not have associated
that phrase with any specific grand jury proceeding. The government introduced
evidence indicating that there were three or more grand juries in session during the
2010-2012 timeframe, and there was no evidence about any sort of investigation
that those grand juries did on their own (i.e., independent of the FBI). ER 2: 647,
649-50, 655, 657, 683; ER 3: 991. Nor was there any evidence about any specific
investigation that any FBI agent did for any specific grand jury. Instead, the
73
evidence only indicated that an FBI agent (or maybe agents) provided general
assistance to one or more of those grand juries. ER 2: 651-52; RT 692.
In light of this evidence, 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. The erroneous instruction thus greased
the tracks for the government to press for conviction on its invalid theory.
A practical point bears making here. In some contexts, it makes no difference
if the phrases grand jury investigation and grand jury proceeding are used
interchangeably. For example, in the context of a 1503 charge that relates to
dishonesty in responding to a grand jury subpoena duces tecum, using grand jury
investigation and grand jury proceeding interchangeably is unlikely to present
a problem. That is because the purpose of issuing a subpoena (what might be called
a grand jury investigation) is to bring relevant materials to the grand jury (i.e.,
into the grand jury proceeding). See Triumph Capital, 544 F.3d at 168. Using
the two phrases interchangeably is problematic, however, when, as in Aguilar, the
allegedly obstructive conduct is lying to investigating agents. [S]tatements made
to investigating agents are not communicated to grand juries as a matter of
course, and because of that, what use will be made of false testimony given to
an investigating agent who has not been subpoenaed or otherwise directed to
74
appear before the grand jury is . . . speculative. Id. at 169 (quoting Aguilar, 515
U.S. at 601). That concern led the Court to impose the mens rea/materiality
element in Aguilar. And in such a context, maintaining the distinction between an
investigation and a grand jury proceeding is important, because it is the proceeding
that the defendant must intend to obstruct.
That concern is heightened in this case because of the unusual theories of
liability pursued by the government. For example, with respect to the claims that
Defendants changed the visiting rules at MCJ and investigated the FBI, it is highly
speculative to assert that Defendants knew those actions were likely to affect a
grand jury proceeding, or that Defendants did those actions with the specific intent
to obstruct a grand jury proceeding. But the erroneous jury instruction allowed the
government to gloss over that problem by equating the federal grand jury
investigation with the FBIs investigation.
The same dynamic is apparent with respect to the governments claim that
Defendants engaged in witness tampering. To proceed on a legally permissible
theory in that regard, the government would have had to show that the
defendants knew that [Michel and Courson were] expected to be called to testify
in a specific grand jury proceeding. Washington Water Power, 793 F.2d at 1084
(internal quotation marks omitted). The government could not make that showing.
75
But the grand jury investigation instruction allowed it to shift the jurys focus
away from whether Defendants intended to obstruct a specific grand jury
proceeding.
In sum, because the instruction given is contrary to the case law cited, and
because it facilitated the governments presentation of an invalid theory for
conviction, all of the obstruction-related counts of conviction should be vacated.
See United States v. Alghazouli, 517 F.3d 1179, 1189 (9th Cir. 2008) ([I]f a jury is
asked to determine whether a defendant conspired to commit an offense, the jury
needs to know the elements of that offense.); United States v. Kim, 65 F.3d 123,
126 (9th Cir. 1995).
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 failed 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 that the government must prove that the
defendants actions would have had the natural and probable effect of interfering
with the grand jury investigation. ER 1A: 261. That instruction was missing the
knowledge component required by Aguilar. When considered in combination with
the other instructional errors discussed above, the upshot is that the jurors were
76
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.
The Defendants did not object to this instructional error, but it was plain
error (because Aguilar was decided twenty years ago), and it may be considered in
the context of considering the cumulative effect of all of the errors raised by the
Defendants. See, e.g., United States v. Fernandez, 388 F.3d 1199, 1256-57 (9th Cir.
2004); United States v. Wallace, 848 F.2d 1464, 1476 n.21 (9th Cir. 1988).
Furthermore, the cumulative effect of the errors requires reversal under the Due
Process Clause, as a matter of federal common law, and under this Courts
supervisory powers. See, e.g., Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007)
([T]he combined effect of multiple trial court errors violates due process where it
renders the . . . trial fundamentally unfair.); United States v. Frederick, 78 F.3d
1370, 1381 (9th Cir. 1996).
III.
The Court Erred in Precluding the Testimony of a Key Defense

Witness.
A.
Introduction
The testimony of Paul Yoshinaga was central to Stephen Leavinss defense

that he acted with the good faith belief that he was following lawful orders.
77
Yoshinaga was LASDs Chief Legal Advisor, and he would have testified that from
August to October 2011, Leavins repeatedly sought his legal advice, and that he
never advised Leavins that investigating the FBI agents or the actions taken with
respect to Brown (including moving him to a satellite jail or holding him under an
alias) were unlawful or improper. The district court precluded Yoshinagas
testimony in its entirety, reasoning that because it was not going to give an adviceof-counsel jury instruction, Yoshinagas testimony was irrelevant. That ruling was
contrary to Bisno v. United States, 299 F.2d 711 (9th Cir. 1961), and it infringed
Leavinss constitutional right to present a defense. The impact of the error was
exacerbated when the government sought to have the jury draw inferences that
were contrary to Yoshinagas proffered testimony.
The error prejudiced the other Defendants for two reasons. First, they were
charged as co-conspirators with Leavins and they too advanced a good faith
defense, and second, Yoshinagas testimony that he did not advise Leavins that the
activities were unlawful or improper would have shown that Defendants belief that
their actions were lawfully authorized was reasonable.
78
B.
Relevant Background
1.
Key Background Facts
Leavins became involved in the facts underlying this case when he was
summoned to a meeting at LASD Headquarters on August 20, 2011. See ER 5:
1437. At that meeting, Sheriff Baca said that the cell phone found on Anthony
Brown belonged to the FBI, and he ordered that the ICIB do a criminal
investigation into the matter. See ER 4: 1129-31, 1135-36, 1290-92; ER 5: 1438-39.
Leavins was ordered to oversee that investigation. See ER 4: 1293-95.
Consistent with his orders, Leavins interviewed Brown the next day, and also
on August 23 and 24. See ER 5: 1440; ER 7: 1951, 1978, 1995. During those
interviews, Brown made several allegations about inmates being abused by deputies
at MCJ, and about FBI agents smuggling contraband into the jails. Brown also said
he was concerned for his safety because he was informing on some of the deputies
who guarded him at MCJ. See ER 2: 717, 719, 765; ER 3: 1070, 1106; ER 4: 1392;
ER 5: 1449-50, 1656; ER 6: 1701-02; ER 7: 1953-54, 1956-58, 1960-64, 1986, 198889. Leavins shared that concern (as did FBI Assistant Director Martinez, ER 4:
1234-35), which is why he sought approval from Sheriff Baca and Undersheriff
Tanaka to move Brown to a satellite jail. See ER 4: 1304-06; ER 5: 1459-60, 1465,
1467-69, 1484-85, 1614.
79
On August 29, Leavins attended a meeting at the USAO, during which

Sheriff Baca said to United States Attorney Birotte that he believed FBI agents had
violated the law by having contraband smuggled into the jail, and that LASD was
investigating that conduct. See ER 4: 1160, 1255, 1261-62; ER 5: 1492, 1495. Birotte
did not object, nor suggest that there was anything illegal or improper about
LASDs investigation. See ER 4: 1162; ER 5: 1494.
The next day, Leavins continued with the investigation, including by
participating in the interviews of Deputies Michel and Courson. See ER 3: 869; ER
4: 1312; ER 5: 1504. But Leavins was not just dealing with supervising the
investigation of Brown and the FBI agents during this time period. As a result of
Browns allegations, Leavins was ordered to create a task force to investigate all of
the allegations of abuse in LASD jails. The task force included 32 investigators,
and the number of investigations that Leavins was supervising increased fourfold
almost overnight. See ER4: 1360, 1364, 1366; ER 5: 1507-08; ER 6: 1706-07; RT
993-94.
As the task forces work progressed, Leavins regularly briefed the Sheriff and
the Undersheriff about its progress, and ensured the transparency of the
investigations by ordering that all interviews be recorded. See ER 4: 1194; ER 5:
1435, 1509. Leavins also obtained the approval of his superiors with respect to key
80
aspects of the investigation of the FBI agents, including obtaining approval before
(1) Craig sought a Superior Court order compelling the FBI to produce documents;
and (2) ICIB investigators began surveillance of two FBI agents. See ER 3: 995-96;
ER 4: 1191, 1322, 1324, 1328-31, 1357-58; ER 5: 1511-15. All of those steps were
taken to learn what the FBI had discovered about corruption and abuse in the jails,
and to determine if FBI agents were meeting with other corrupt deputies, so that
LASD could remove bad deputies from service. See ER 4: 1325-27, 1335; ER 5:
1511, 1516; ER 6: 1714, 1720, 1723, 1725-26.
2.
Leavinss Testimony Related to Paul Yoshinaga
Leavins testimony with respect to his interactions with Yoshinaga was as

follows.
Yoshinaga was an attorney in the Los Angeles County Counsels Office, and
he served as the Senior Legal Advisor to LASD. See ER 5: 1469-70, 1619. As the
investigations that grew out of the discovery of the cell phone ramped up, Leavins
communicated with Yoshinaga regularly, and both men attended the August 29
meeting at the USAO. See ER 5: 1491.
Following that meeting, Leavins drafted a memorandum for his boss,
Captain Carey, which was addressed to Sheriff Baca. The memorandum
summarized the facts relating to the ongoing investigation into whether FBI agents
81
had violated state law when they arranged to smuggle a cell phone, and possibly
drugs, to Brown. See ER 5: 1470-73, 1620; ER 1A: 340. Leavins forwarded a draft
of the memorandum to Yoshinaga on August 29, because he wanted to make sure
we were on firm legal grounds in proceeding with this investigation. ER 5: 1471,
1474. When Leavins subsequently talked to Yoshinaga to get his input, Yoshinaga
suggested some language changes the addition of citations for the California Penal
Code references. See ER 5: 1475, 1621.
On August 31, after making those changes, Leavins forwarded the final
version of the memorandum to Yoshinaga for his review. See ER 1A: 342; ER 5:
1472-73. At the same time, Leavins provided Yoshinaga additional reports relating
to the investigation, because he wanted Yoshinagas input and opinion about the
investigation. ER 5: 1624. During Leavinss testimony, however, the court
repeatedly precluded him from stating what input and opinions Yoshinaga gave him
during this process. See ER 5: 1475-76, 1478-79, 1622-23.
In supervising the investigation of the FBI agents over the next few weeks,
Leavins believed that he, and those he worked with, were acting lawfully. See ER 5:
1627. He believed that in large part because he consulted with Yoshinaga and
Yoshinaga never raised any concerns. See ER 5: 1622, 1632. Leavinss perspective
changed on October 3, 2011, when he received an email from Craig. Craig wrote
82
that he had just been informed that [t]he DA will not be able to pursue any
charges against any of the FBI agents and Anthony Brown based on the supremacy
clause. ER 7: 2117; ER 5: 1528. After he received Craigs email, Leavins
concluded that there was no longer a valid reason to investigate the FBI agents
conduct, and that aspect of the investigation was terminated. See ER 5: 1530, 1608.
3.
Yoshinagas Proffered Testimony
As set forth in the written proffer submitted by Leavinss counsel, Yoshinaga

would have testified that as the Chief Legal Advisor to LASD in August through
October 2011, he provided legal advice to Baca and Leavins with respect to the
investigation into the FBIs causing a cell phone, and possibly drugs, to be
smuggled into MCJ. See ER 1B: 328, 330. The first consultation occurred a week
or two before the August 29 meeting at the USAO, when Baca asked Yoshinaga if it
was illegal to smuggle a cell phone into the jails, and what code sections might be
implicated. See ER 1B: 330. After researching the issue, Yoshinaga responded that
such conduct constituted a misdemeanor. See id. Yoshinaga was not presently
sure, but he believed it was possible that when he gave that opinion to Baca, he
knew that the cell phone in question was connected to the FBI. See id.
Subsequently, Baca asked Yoshinaga to attend the August 29 meeting at the
USAO. See ER 1B: 331. Beforehand, Yoshinaga got up to speed by reviewing
83
reports relating to the investigation. By the time of the meeting, Yoshinaga was
aware that the cell phone was connected to the FBI, that the agent who smuggled
the phone into the jail had acted with approval from her superiors, and that Brown
was working with the FBI to investigate inmate abuse at MCJ. See ER 1B: 333; ER
7: 2118. Yoshinaga recalled that at the August 29 meeting, Baca told United States
Attorney Birotte that the FBI could not violate the law to enforce it, and that LASD
was investigating whether the FBI agents involved broke the law. See ER 1B: 332.
Neither Birotte nor any of the other representatives of the federal government
present challenged LASDs authority to do so. See id. Particularly in light of that
silence, Yoshinaga believed that LASDs investigation was lawful and was
compelled by the Sheriffs duty to ensure safety in the jails. See ER 1B: 332, 334.
Accordingly, Yoshinaga did not advise anyone at LASD that the investigation was
improper. See ER 1B: 332, 334-35.
Later on August 29, following the meeting at the USAO, Leavins sent
Yoshinaga a draft memorandum. See ER 1B: 334-35. That memorandum, which
was discussed above in the summary of Leavinss testimony, was from Captain
Carey to Baca, and it discussed LASDs investigation of the FBI agents conduct.
See ER 1B: 334, 340. Over the next two days, Yoshinaga communicated with
Leavins about the draft memorandum, and he provided legal advice about changes
84
to it, after which he was provided a copy of the final version on August 31. See ER
1B: 335, 342. During this time period, Yoshinaga continued to believe that the
investigation of the FBI was not only legal, it was required, and thus he did not
advise Leavins that there was anything problematic about pursuing the
investigation. See ER 1B: 334-35.
On September 2, Leavins emailed Yoshinaga asking if it was okay to delay
Browns impending transfer to state prison while LASD completed its
investigation. See ER 1B: 336, 353. Yoshinaga responded that LASD was legally
obligated to complete its investigation, and that it was therefore reasonable to keep
Brown in LASD custody until the investigation was complete. See ER 1B: 336.
Yoshinaga also would have testified that sometime in August or September
2011, he was asked about Browns being (1) moved to a satellite jail, and (2) housed
under an alias. See ER 1B: 331. Yoshinaga did not think that was legally
problematic, and did not raise any concerns with LASD personnel, because he had
heard of those steps being taken previously to ensure an inmates safety and for
investigative reasons. See id.
Finally, Yoshinaga would have testified that he never advised Leavins, or
anyone else at LASD, that it was improper or illegal for LASD to investigate the
FBIs role in smuggling the phone into the jail. See ER 1B: 332, 334, 335. That was
85
because he believed that LASD had the right, and indeed was duty-bound, to
pursue that investigation. See id.
C.
The District Court Erred by Precluding Yoshinagas Testimony,

and in Doing So Infringed Leavinss Constitutional Right to
Present a Defense.
After being provided with the proffer of Yoshinagas testimony summarized

above, the court precluded his testimony in its entirety, stating:
I dont believe that the testimony would qualify or meet the
prerequisites for an advice-of-counsel defense, and I have had
no cases presented to me which would indicate that the
testimony is otherwise relevant. To the extent that it is
relevant, it -- what probative value [it] would have is
substantially outweighed by confusion of issues to the jury.
ER 1B: 323. As discussed below, Yoshinagas testimony was relevant, and should
not have been precluded under Rule 403. Furthermore, its preclusion infringed
Leavinss constitutional right to present a defense.
1.
Yoshinagas Testimony Was Relevant.
Evidence is relevant if it has any tendency to make a fact that is of

consequence more or less probable than it would be without the evidence.
Fed. R. Evid. 401 (emphasis added). The government claimed that Defendants
criminal intent was apparent from the fact that they had ample evidence that they
86
could not investigate the FBI agents involved in this case, but they nevertheless
did so. See ER 6: 1755, 1823, 1827. The Defendants sought to rebut that claim with
evidence that they acted in good faith, intending to carry out what they believed
were lawful orders. Yoshinagas testimony was critical to Leavinss defense in that
regard, in three ways.
First, that Leavins sought legal advice about the propriety of the
investigation is itself evidence of good faith.
Second, Leavins could have reasonably believed that if there was something
wrong with investigating the FBI agents, Yoshinaga would have said so.
Third, if Yoshinaga, who was LASDs legal counsel, did not think there was
anything wrong with investigating the FBI agents, it is reasonable to believe that
Leavins also did not think there was anything wrong with doing so.
In precluding Yoshinagas testimony, the district court reasoned that
(1) there was insufficient evidence to support giving an advice-of-counsel
instruction, thus (2) Yoshinagas testimony was completely irrelevant. The
premise is doubtful, because [s]o long as the primary facts which a lawyer would
think pertinent are disclosed, or the client knows the lawyer is aware of them, the
predicate for an advice-of-counsel defense is laid. United States v. DeFries, 129
F.3d 1293, 1309 (D.C. Cir. 1997). But even if Leavins was not entitled to an advice-
87
of-counsel instruction, that did not render Yoshinagas testimony irrelevant. That
conclusion is evident from Bisno, 299 F.2d 711.
In Bisno, the defendant, who was charged with bankruptcy fraud, introduced
evidence that he hired an attorney to help him prepare his bankruptcy petition.
The attorney testified that Bisno did not ask him to conceal any assets, and that
Bisnos inability to hire an accountant [made] the task of preparing the [petition]
. . . very difficult. 299 F.2d at 719. The Court held that the attorneys testimony
was not sufficient to justify giving an advice-of-counsel instruction, but it was
nonetheless evidence of good faith. Id. Furthermore, the Court noted that
[u]nder the general instruction given by the district court on specific intent, the
jury was entitled to consider the testimony of Bisnos counsel for what it was
worth. Id. at 720; cf. Reynolds v. Hartford Fin. Servs. Grp., Inc., 426 F.3d 1020,
1038 n.18 (9th Cir. 2005) ([c]onsulting with attorneys is evidence of lack of
willfulness), revd on other grounds by Safeco Ins. Co of Am. v. Burr, 551 U.S. 47
(2007). In short, the Court in Bisno held that a defendants having sought the
advice of counsel is evidence of good faith, and may be considered to defeat a
showing of specific intent, even if the defendant is not entitled to an advice-ofcounsel instruction.
88
This Court applied Bisno in United States v. Bush, 626 F.3d 527 (9th Cir.
2010), holding that the defendant was not prejudiced by the failure to give an
advice-of-counsel instruction because he was permitted to introduce evidence
about his interactions with counsel to support that he acted in good faith, without
criminal intent. Id. at 540. Other circuits have also relied on Bisno to hold that
reliance on legal counsel may be considered in determining the question of good
faith. United States v. Custer Channel Wing Corp., 376 F.2d 675, 683 (4th Cir.
1967); see also Howard v. S.E.C., 376 F.3d 1136, 1147 (D.C. Cir. 2004); cf. Kroll v.
United States, 433 F2d 1282, 1285-86 (5th Cir. 1970) (Defendants were free to
introduce evidence of good faith reliance upon counsel as tending to prove they
lacked criminal intent . . . .).
The conclusion that Yoshinagas testimony was relevant is even stronger in
this case than it was in Bisno and Bush. In those cases, the district courts gave
general specific intent instructions and this Court held that evidence of the
defendants interactions with counsel was relevant to the jurys consideration of
that element. Here, the court instructed the jurors that evidence that a defendant
relied in good faith on the orders the defendant received from the defendants
superior officers and that the defendant objectively believed those orders to be
89
lawful is inconsistent with an unlawful intent . . . . ER 1A: 261-62. Yoshinagas

testimony was directly relevant to that instruction.
2.
Yoshinagas Testimony Was Not Excludable Under Rule 403.
As an alternative basis for excluding Yoshinagas testimony, the court relied

on Federal Rule of Evidence 403, stating that what probative value [it] would
have is substantially outweighed by confusion of issues to the jury. ER 1B: 323.
Rule 403 requires that the probative value of the evidence be compared to the
articulated reasons for exclusion and permits exclusion only if one or more of those
reasons substantially outweigh the probative value. United States v. Haischer, 780
F.3d 1277, 1281 (9th Cir. 2015) (emphasis added). Thus, giving the appropriate
weight to the evidence sought to be admitted is a crucial element of the balancing
test that Rule 403 requires. United States v. McFall, 558 F.3d 951, 963 (9th Cir.
2009). For that reason, when the court excludes evidence under Rule 403 but
does not engage in explicit balancing, [this Court] review[s] such a determination
de novo. United States v. Moran, 493 F.3d 1002, 1012 (9th Cir. 2007).
The court erred with respect to both sides of the Rule 403 balance. It did not
give any weight to Yoshinagas testimony, finding it completely irrelevant. On the
other side of the balance, the court did not even explain why it believed there was a
potential for juror confusion. Perhaps the court was concerned that the jurors
90
might credit Yoshinagas opinions with respect to the legality of investigating the
FBI agents. But Yoshinagas testimony was intended to show that Leavins did not
have the intent to obstruct justice (the crucial issue for the jury), not that it was
actually lawful to investigate the FBI agents. And to the extent juror confusion was
a valid concern, it could have been addressed by limiting Yoshinagas testimony, or
by giving a cautionary jury instruction. See Boulware, 384 F.3d at 808 (Any
danger that the jury would have given undue weight to the [evidence] could have
been dealt with by a cautionary instruction.). Indeed, the court admitted similar
evidence that was prejudicial to Defendants, while instructing the jurors that they
should only consider that evidence with respect to what it showed about
Defendants intent. See ER 1A: 255.
Application of Rule 403 must be cautious and sparing because the Rules
major function is limited to excluding matter of scant or cumulative probative
force. . . . Haischer, 780 F.3d at 1282 (internal quotation marks and brackets
omitted). In this case, the jury was faced with a difficult issue of the
[Defendants] subjective intent, and [t]here were no substantial reasons for
precluding Yoshinagas testimony. See United States v. Thomas, 32 F.3d 418, 421
(9th Cir. 1994).
91
3.
Precluding Yoshinagas Testimony Infringed Leavinss

Constitutional Right to Present a Defense.
Where an evidentiary error has occurred in a criminal prosecution, [the

Court] then review[s] de novo whether the error rises to the level of a
constitutional violation. Haischer, 780 F.3d at 1281 (internal quotation marks
omitted). A constitutional violation occurs if a district court excludes (1) the
main piece of evidence, (2) for the defendants main defense, to (3) a critical
element of the governments case. United States v. Evans, 728 F.3d 953, 967 (9th
Cir. 2013).
Yoshinagas testimony would have been the central evidence in support
of Leavinss defense that when investigating the FBI agents he did not intend to
obstruct justice, but instead he was carrying out orders in good faith. See Haischer,
780 F.3d at 1284. Accordingly, the district courts preclusion of that evidence
requires reversal, both because the court erred in applying the rules of evidence,
and because of the constitutional error. See United States v. Stever, 603 F.3d 747,
755 (9th Cir. 2010).
D. The Government Improperly Capitalized on the Erroneous
Preclusion Order.
Reversal is also required because the government improperly capitalized on
the district courts erroneous preclusion order.
92
When cross examining Leavins, the prosecutor repeatedly asked questions

that suggested that Leavins did not actually confer with Yoshinaga, or did so only
minimally. For example, the prosecutor referred to Leavinss prior grand jury
testimony with respect to the events involved in this case, and pointed out that
during that testimony (portions of which were read during the trial) Leavins had
not mentioned Yoshinaga. The prosecutor also asserted that other than two
exhibits introduced at trial, Leavins had no other documents to indicate that [he
was] seeking legal advice from Mr. Yoshinaga during August and September of
2011. ER 5: 1557; 1652. In addition, the prosecutor claimed that Leavins could
recall only one specific meeting with Yoshinaga. See ER 5: 1555. Had Yoshinaga
been allowed to testify, he would have made clear that he communicated with
Leavins regularly throughout the relevant time period.
The prosecutor did the same sort of thing with respect to the August 31
Carey/Baca memorandum that Leavins drafted (the first draft of which Leavins
created on August 29). As discussed above, Yoshinaga would have testified that he
made suggestions to Leavins about the content of that memorandum, including
with respect to the California Penal Code sections that the FBI agents may have
violated. When Leavins tried to testify about what Yoshinaga had told him during
that process, the district court sustained the governments objections. See ER 5:
93
1475-76, 1478-79, 1622-23. Then, on cross, the prosecutor repeatedly quizzed

Leavins on the California Penal Code sections cited in the memorandum, in an
effort to make it appear that Leavins did not truly believe that the FBI agents might
have violated state law. See ER 5: 1572-76. Leavins finally responded that he had
conversations with Mr. Yoshinaga about the code sections cited, and the
prosecutor responded, [D]o you have any notes from the conversation? ER 5:
1577-78. The implication was that those conversations did not occur. Yet the
prosecutor knew that Yoshinaga would have testified that those conversations did
occur.
The prosecutor also asked Leavins if he had told Yoshinaga that the FBI
agents who smuggled the phone into the jail had authorization for their actions, and
Leavins responded that he did not recall if he did so. See ER 5: 1552-53. This
question was a red herring. As the prosecutor knew, Yoshinaga would have
testified that he was aware that the FBI agents acted with authorization from their
superiors, because that was indicated in the reports that Yoshinaga reviewed, and
was indicated at the August 29 meeting at the USAO (which Leavins and
Yoshinaga both attended). See ER 1B: 332-33; ER 7: 2118. Nonetheless, in his
closing argument the prosecutor revisited this issue, and the others discussed
above, stating:
94
[Leavins] talked about Paul Yoshinaga and how he went to

Mr. Yoshinaga for advice all the time. Yet on cross-examination
[he] had to admit that [1] the only facts Mr. Yoshinaga knew on
that time line went up to August 23rd, that [2] he hadnt
informed Mr. Yoshinaga that this was a legitimate covert
operation, and [3] he didnt recall any other meetings, any other
communications with Mr. Yoshinaga. So as of August 29th,
when he finalized that draft of the letter, [4] he didnt further
talk to Mr. Yoshinaga. . . . He doesnt have good faith.
ER 6: 1855-56. The brackets above identify four misleading statements, which are
discussed below.
First, the prosecutors claim that Yoshinaga was only aware of relevant
events that occurred up until August 23 was wrong, and was obviously meant to
imply that Yoshinaga did not know about important events. Yoshinaga would have
testified that he: (1) was advised sometime in August or September of 2011 that
Brown was transferred to a satellite jail and his name was changed in LASD
computer database (both events that first occurred on August 25); (2) attended the
August 29 meeting at the USAO; (3) consulted with Leavins about the Carey/Baca
memorandum during the August 29-31 time period; (4) discussed keeping Brown in
LASD custody with Leavins on September 2; and (5) conferred with Leavins and
Baca throughout the period from August to October 2011.
95
Second, the prosecutors statement that Leavins admitted that he did not
inform Yoshinaga that this was a legitimate covert operation is also wrong. This
misstated Leavinss testimony, which was that he was unsure whether he had told
Yoshinaga that the FBI agents who smuggled the phone into the jail acted with
authorization from their superiors. More important, Yoshinaga would have
testified that he was well aware of this fact, and Leavins knew Yoshinaga was aware
of this fact, because both men attended the August 29 meeting at the USAO.
Third, the prosecutors statement that Leavins did not recall any other
communications with Yoshinaga implied that Leavins only spoke with Yoshinaga
about the investigation once. As the prosecutor knew, Yoshinaga would have
testified to the contrary.
Fourth, and relatedly, the claim that Leavins did not communicate with
Yoshinaga after August 29 is incorrect, and if Yoshinaga had been permitted to
testify he would have made that clear.
There was a final, major way in which the government unfairly capitalized on
the preclusion order. During his grand jury testimony related to the events
underlying this casewhich was read during the trialLeavins said that he
recalled that at the August 29 meeting at the USAO, United States Attorney
Birotte had told Sheriff Baca to butt out of the FBIs investigation. See ER 3:
96
961. At trial, Leavins testified that he had been mistaken about that date, and that
he believed Birotte made that statement during a late September 2011 meeting at
the USAO that Leavins recalled attending. See ER 5: 1601-03. On cross
examination, the prosecutor challenged Leavins, claiming that the butt out
statement was made during the August 29 meeting, which Leavins disputed. See
ER 5: 1625-39. Then, in its brief rebuttal case the government called Birottes
administrative assistant and she testified that there was a September 27, 2011
meeting at the USAO, but that Leavins did not attend that meeting. See ER 6: 1733.
Based on this evidence, the government argued in closing that the butt
out statement that Leavins recalled was made by Birotte at the August 29
meeting, and that statement put Leavins on notice that he should, in short, butt
out. ER 6: 1791. This was a key part of the governments claim that Leavins, and
the other Defendants, knew that they should not be investigating the FBI agents,
but did so because they intended to obstruct justice.
It seems obvious that Birotte was the best witness to testify about if, and
when, he told Baca to butt out. But the government did not call Birotte, and it
objected when the defense indicated that it wanted to call Birotte to clear up
exactly this issue. See ER 4: 1205-10. Even setting that aside, the government knew
that Yoshinaga would have testified that at the August 29 meeting, neither Birotte
97
nor any other representative from the federal government voiced any objection
(butt out or otherwise) to the Sheriffs stated intent to have LASD investigate
the conduct of the FBI agents. ER 1B: 332, 334.
[I]t is decidedly improper for the government to propound inferences that
it knows to be false, or has very strong reason to doubt . . . . United States v.
Blueford, 312 F.3d 962, 968 (9th Cir. 2002); see also United States v. Kojayan, 8 F.3d
1315, 1318, 1323 (9th Cir. 1993). Even if the government does not act in bad faith,
the Court may find that there was misconduct that warrants reversal. See United
States v. Alcantara-Castillo, --- F.3d ---, 2015 WL 3619853, at *2 n.1 (9th Cir. June
11, 2015). Furthermore, the Court may consider whether the prejudice from
precluding Yoshinagas testimony was exacerbated by prosecution statements
that, purposefully or not, may have misled the jury. Thomas, 32 F.3d at 421.
Here, the government led the jury to believe things that were directly contrary to
what Yoshinaga would have said if his testimony had not been precluded. Whether
the prosecutors capitalizing on the preclusion order in this manner is viewed as
misconduct or as contributing to the prejudice of the district courts erroneous
evidentiary ruling, reversal of the obstruction counts of conviction is warranted.
98
E.
The Errors Prejudiced the Other Defendants.
The wrongful exclusion of good faith evidence offered by one defendant can
prejudice a codefendant and constitute reversible error. United States v. Moran,
493 F.3d 1002, 1014 (9th Cir. 2007) (wrongful exclusion of good faith evidence
offered by wife prejudiced co-defendant husband and requires reversal of his
conviction); United States v. Bishop, 291 F.3d 1100, 1112 (9th Cir. 2002) (in trial of
defendant for tax fraud, it was error to exclude testimony of wife as to advice they
received about their return).
The Court explained in Moran that while a good faith defense is specific to
the individual, the wrongfully excluded evidence of good faith offered by Ms.
Moran as to the professional opinions about the tax scheme with which they were
jointly charged would have been relevant as circumstantial evidence to prove the
state of mind of her husband and co-conspirator. 493 F.3d at 1014-15. The same
is true here. Yoshinagas testimony about the activities with which Leavins and the
other defendants were jointly charged would have been relevant as circumstantial
evidence to prove the state of mind of the other defendants with respect to those
same activities. Id.
The exclusion of the evidence was prejudicial to the remaining defendants
for the additional reason noted by the Court in Moranthe Defendants were
99
charged as co-conspirators. Id. at 1014-15. If alleged co-conspirator Leavins was

acting in good faith, and not conspiring to obstruct justice, the other defendants
would not be conspiring with him. This is not simply a matter of one less coconspirator. Given that Leavins was receiving orders from his superiors and
carrying them out with the other defendants, if Leavins was not conspiring to
obstruct justice in doing so, it made it less likely that the others who were carrying
out the order with him were doing so.
The exclusion of the evidence was prejudicial for a third reason. Defendants
maintained they reasonably believed their actions were lawfully authorized and did
not act with corrupt intent. If the jury heard attorney Yoshinagas testimony it
would have made it abundantly clear that it was reasonable for all Defendants, none
of whom were trained as lawyers, and who were carrying out facially lawful orders
from their superiors, to believe their actions were lawfully authorized.
100
IV.
The District Courts Many Erroneous Evidentiary Rulings, Alone and

Cumulatively, Resulted in a Denial of the Right to Present a Complete
Defense.
A.
The District Courts Erroneous Evidentiary Rulings Individually

Require Reversal.
The court repeatedly made erroneous evidentiary rulings that benefitted the
government and prejudiced the defense. Six of the errors are examined
individually below, and common errors are examined collectively thereafter.
1.
The District Court Improperly Excluded Evidence Rebutting the

Governments Contention that Brown Could Have Been Safely
Held at MCJ.
The government argued that Brown was moved from MCJ to a station jail
with the corrupt purpose to obstruct justice by hiding Brown from the FBI, USMS,
and grand jury. The defense maintained that Brown was moved and hidden for
safety reasons. There was undisputed evidence that Brown faced harm from
deputies because he was implicating them in misconduct, and from inmates
because he was a snitch. ER 4: 1137-38; RT 1771.
The prosecution sought to bolster its argument about the motivations behind
Browns transfer through testimony from Gilbert Michel. Michel testified that an
inmate accused of killing a deputy was held on the 2000 floor of MCJ, and that
there were cameras in that area. ER 3: 861-64. The only possible relevance of this
101
testimony was the inference the prosecution wanted the jury to draw that Brown
could have been safely held in that area, and thus the real reason he was ordered to
be moved was to obstruct justice.
In response, the defense sought to introduce a video showing that a snitch
had been attacked with a razor blade in early September 2011 on the 2000 floor of
MCJ. ER 1B: 354, 366. The violent attack was recorded by the very cameras the
prosecution maintained would have protected Brown from such harm. ER 1B: 35455. The video, Exhibit 1060, was 15 seconds long and showed an inmate getting out
of his cell and repeatedly slashing another inmate in a nearby shower. ER 1B: 369.
The defense also sought to present testimony authenticating the video and
establishing the inmate was assaulted because he was an informant; that the assault
occurred in the same area of MCJ in which Michels testimony suggested Brown
would be safe; and that the physical conditions of MCJ made it unsafe. ER 1B: 35460.
The court excluded the videotape. ER 1B: 364-65. The court acknowledged
the defense sought to admit the video to rebut the inference that was elicited by
the Government concerning the fact that Mr. Brown could have been kept in a cell
safely under guard. ER 1B: 364. The court, however, ruled the situations were
not similar for two reasons. First, the prosecution submitted a report regarding the
102
assault in which theres an indication that this inmate was in the wrong cell, and
second, because the inmate in the video was actually breaking out of his cell as
opposed to keeping people from coming into his cell. Id.
In cross-examining Leavins, the prosecution again suggested that the
presence of cameras at MCJ ensured Browns safety. ER 5: 1531-32 (asking
whether Leavins knew Brown was housed within a cell with a camera trained on it
so you could see every person who came to it). Following this questioning, the
defense renewed its request to admit Exhibit 1060. ER 1B: 366-67. The court again
sustained the prosecutions objection. ER 1B: 369.
The video and corresponding testimony would have been relevant even if the
government had not elicited Michels and Leavinss testimony, as it supported the
defense position that holding Brown at MCJ posed a risk to his safety, and he was
order moved for safety reasons. Once the government presented Michels
testimony, admission of Exhibit 1060 was necessary to insure the jury was not
provided a one-sided picture. United States v. Waters, 627 F.3d 345, 357 (9th
Cir. 2010) (In light of the district courts decision to allow the anarchist literature
into evidence, however, excluding the video was certainly an abuse of
discretion.); see also Parle v. Runnels, 505 F.3d 922, 932 (9th Cir. 2007) (wrongful
103
admission of one doctors testimony, combined with improper exclusion of second

doctors testimony, left the jury with only half the picture).
The courts ruling was an abuse of discretion. United States v. Montes, 628
F.3d 1183, 1187 (9th Cir. 2011) (A district court abuses its discretion if it reaches a
result that is illogical, implausible, or without support in inferences that may be
drawn from facts in the record.) (quoting United States v. Hinkson, 585 F.3d
1247, 1251 (9th Cir. 2009) (en banc)). The courts reason for not admitting the
videoi.e., that the two situations were not similarwas illogical and lacked
evidentiary support. The court incorrectly compared Brown to the inmate who
escaped his cell, when the appropriate comparison was between Brown and the
informant who was attacked in the shower.
2.
The District Court Improperly Admitted Irrelevant and Highly

Prejudicial Prosecution Evidence Concerning Specific Instances of
Inmate Abuse in the LA County Jails.
At the initial appearance, the government advised the court that it was not
going to be offering into evidence any specific instances of abuse in this case.
ER 2: 619. Notwithstanding the prosecutions representation, it elicited testimony
about specific instances of inmate abuse. The prosecution had Michel explain the
search techniques or procedures used on the 3000 floor. According to Michel,
deputies would face inmates against the wall, kick their legs causing them to fall to
104
the floor, and then pick the inmate up and slam him on the wall. ER 3: 867. The
court overruled a defense objection. Id. Michel was also allowed to testify about
the unwritten rules he learned while on the 3000 floor, including a code of
silence. Id.
The government also elicited Michels testimony regarding an example of a
use of force that resulted in a report that was not truthful. Michel testified about
an instance in which he and several deputies punched, kicked and tased an
inmate, including after the inmate was handcuffed, which resulted in visible
injuries. ER 3: 894-98. The defense objected that the evidence had no probative
value and was highly prejudicial. ER 3: 898. The court responded, Well, you
guys were arguing this was a turf war. This shows thats something more than a
turf war . . . . ER 3: 899. The objection was overruled. ER 3: 901. Michel went on
to testify about other specific instances of inmate abuse, including one in which he
searched an inmate to provoke a fight, after which he and other deputies injuring
the inmate and wrote a false report. ER 3: 904. Michel said he learned on the
job how to provoke fights with inmates. ER 3: 909.27
27
The court gave a limiting instruction at the conclusion of Michels direct

testimony, telling the jury that the defendants are not on trial for any conduct or
105
MCJ deputy William Courson similarly testified that were unwritten rules
within the jail system, including one he learned in training in 2008 that if an
inmate fought with a deputy, the inmate would go to the hospital. ER 3: 934,
937. The defense objected on relevance grounds under Rule 403. ER 3: 935-37.
The court overruled the objection. ER 3: 937. Courson went on to testify about a
specific use-of-force instance he witnessed where he was told to provide a false
report. ER 3: 940.
The court erred in admitting evidence of these specific instances of inmate
abuse or general practices. In fact, the prosecution never articulated how they were
relevant to the obstruction charges. See United States v. Mayans, 17 F.3d 1174, 1181
(9th Cir. 1994) (explaining that government must articulate precisely the
evidential hypothesis by which a fact of consequence may be inferred from the
other acts evidence) (quoting United States v. Mehrmanesh, 689 F.2d 822, 830
(9th Cir. 1982)).
Even if the evidence could be deemed relevant, its probative value was far
outweighed by its unfair prejudicial impact. The probative value of evidence
against a defendant is low where the evidence does not go to an element of the
offenses that are not charged in the indictment. Youre only to determine whether
the defendants are guilty or not guilty of the charges in the indictment. ER 3: 911.
106
charge. United States v. Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005)
(abuse of discretion to admit evidence that two young aliens defendant brought into
United States suffered heat stroke); United States v. Arambula-Ruiz, 987 F.2d 599,
604-05 (9th Cir. 1993). That was certainly true of the inmate abuse evidence in this
case.
The evidence was also unfairly prejudicial. Unfair prejudice refers to the
capacity of some concededly relevant evidence to lure the factfinder into declaring
guilt on a ground different from proof specific to the offense charged. . . . In other
words, unfairly prejudicial evidence is that having an undue tendency to suggest
decision on an improper basis, commonly, though not necessarily, an emotional
one. Gonzalez-Flores, 418 F.3d at 1098 (quoting Old Chief v. United States, 519
U.S. 172, 180 (1997)). Here, the evidence of inmate abuse encouraged the jury to
decide the case on the basis that guards were abusing inmates, that Defendants
were part of a machine that had failed to protect inmates, and therefore, that they
must be guilty of obstructing the FBI investigation. Importantly, there was no
allegation that any of the defendants had themselves abused inmates, or that they
had personally covered up such abuse.
Thus, just as in Gonzalez-Flores, it was an abuse of discretion to admit the
evidence of specific instances of violent abuse: the evidence was of very slight
107
value, and posed a significant risk of unfair prejudice. See Gonzalez-Flores, 418 F.3d
at 1098; United States v. Hitt, 981 F.2d 422, 424 (9th Cir. 1992).
3.
The District Court Improperly Limited Cross-Examination of Jason

Pearson Regarding Service of the Writ for Anthony Browns
Testimony.
Jason Pearson, one of the OSJ deputies assigned to the Brown security detail
testified on direct that at some point he was aware of a federal writ for
Brown, but could not remember when he became aware. ER 2: 788. The
prosecution used Pearsons grand jury testimony to refresh his recollection, and
then asked [d]uring what period of time between August 21st24th to September
12th did you learn about the writ? ER 2: 789. Pearson responded, Towards the
end. Id.
Pearson testified before the grand jury 16 months after the events in
question. ER 2: 804. The defense sought to establish that prior to his testimony
before the grand jury, Pearson had lots of conversations about the events in
question with other deputies to show that his memory was corrupted. ER 2: 804,
807. The court sustained the prosecutions objection. ER 2: 805.
The court abused its discretion, as the question bore directly on the
reliability of Pearsons testimony. The question would have been proper even if
Pearson had testified he recalled a writ being issued for Brown near the end of
108
August 24 to September 12 without his recollection being refreshed. Moreover, the

prosecution opened the door to the questions when it asked Pearson with whom he
had discussed the writ. ER 2: 789.
The courts abuse of discretion is confirmed by its stated reason for not
allowing the examination. ER 2: 807 (Well, Im not sure that his memorys been - Im not sure theres a connection between the fact that you talk to a lot of people
after an event and then your memory is corrupted.). While post-event
conversations will not always corrupt a witnesss memory of prior events, it is
implausible that they never will.
Pearsons refreshed recollection testimony was significant because it was the
only evidence supporting the prosecutions contention that deputies were aware of
the writ. The ruling violated Defendants right of confrontation, as it effectively
cut off all inquiry into the reliability of Pearsons recollection on this critical point
due to intervening events and conversations. See Fowler v. Sacramento Cnty.
Sheriffs Dept, 421 F.3d 1027, 1041 (9th Cir. 2005) (finding Confrontation Clause
violation where courts ruling precluded all inquiry into witnesss bias); United
States v. Schoneberg, 396 F.3d 1036, 1040-43 (9th Cir. 2005) (finding Confrontation
Clause violation where limitations placed on defendants cross-examination
prevented defendants attempt to establish that witness had motive to lie).
109
Because the restriction on the cross-examination of Pearson violated the

Confrontation Clause, reversal is required unless the error was harmless beyond a
reasonable doubt. Chapman v. California, 386 U.S. 18, 24 (1967); Schoneberg, 396
F.3d at 1044. While the restriction affected only a limited area of examination, its
impact was significant because Pearsons refreshed recollection was the only
evidence that any LASD deputy was aware of a writ for Brown.
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.
Reuben Martinez, an LASD sergeant in charge of surveillance in ICIB,

testified about LASDs surveillance of FBI Agents Marx and Lam. RT 1998-99.
On redirect, the government elicited the following legal opinion from Martinez:
Q.
Is it a correct statement that you have no jurisdiction

over Federal agencies?
A.
Thats correct.
Q.
The FBI is a federal agency?
A.
It is.
ER 3: 1106.
On recross, the district court precluded the defense from asking Martinez
about the legal conclusion he had just given. Defense counsel asked on recross
whether Martinez recalled the governments question if [he] had jurisdiction or
110
the FBI, but the court sustained the governments objection that the question
misstated the testimony. ER 3: 1108. Counsel followed up by asking Martinez
whether, on or around September 26, there was anything unauthorized about
surveilling an FBI agent. ER 3: 1109. The court sustained the governments
objection that this question called for speculation. Id.
At sidebar, counsel argued that Martinezs belief that LASD lacked
jurisdiction over federal agencies first came out on redirect and that the defense
was entitled to ask him whether his understanding at the time was . . . that FBI
agents were exempt from being investigated or surveilled. Id. The court
interjected: [L]et me see if I got this right. She calls him. He crosses. She
redirects, and now you want to jump in? ER 3: 1110. Counsel argued, [I]t was
brought out in redirect about whether they had jurisdiction. And as the Court
knows, thats a big issue. . . . [I]t came out to be a legal opinion, and I think it needs
to be clarified . . . . The court ruled: No. Id.28
28
In fact, the district court often permitted the government to ask questions
calling for legal opinions while precluding such questions from the defense.
Compare ER 4: 1394 (permitting government to ask Carey whether undercover
operations may use informants and undercover agents in order to rule out criminal
activity), RT 2545 (permitting government to ask Judge Torribio whether he
would have issued an arrest warrant if the evidence showed that the FBI agent was
acting within the course of her authorized duties), and ER 5: 1578 (permitting
111
The ruling was an abuse of discretion. The court seemed to feel that the
defendants had already had an opportunity to question the witness and had failed to
use it. The record proves the court wrong. To the extent the court ruled that the
defense questions came too late, the courts ruling was illogical, unreasonable, and
an abuse of discretion. See Montes, 628 F.3d at 1187.
The error was especially prejudicial because a fundamental question for the
jury was whether the LASD investigation was authorized and performed in good
faith or done for a corrupt or obstructive purpose. The straightforward
testimony of an LASD officer that LASD lacked any jurisdiction over the FBI
decided that question, but, as a legal conclusion, the testimony was erroneous and
incomplete. See Torres v. Cnty. of Oakland, 758 F.2d 147, 150 (6th Cir. 1985) (The
problem with testimony containing a legal conclusion is in conveying the
witness[s] unexpressed, and perhaps erroneous, legal standards to the jury.);
Andrews v. Metro N. Commuter R.R. Co., 882 F.2d 705, 709 (2d Cir. 1989)
government to ask Scott Craig whether state law code governing bribery would
only apply if Brown were an informant who was going to testify in a criminal
proceeding), with ER 3: 860 (sustaining government objection to question whether
Carey believed the orders he received on August 20, 2011 were lawful); ER 4: 1334
(sustaining government objection to question whether Carey thought Craig and
Longs approach of Marx was consistent with a lawful investigation).
112
([T]estimony that embraces an ultimate issue to be decided by the jury . . . should

not be received if it is based on inadequately explored legal criteria.) (internal
quotation marks omitted).
The error was additionally harmful because the district court ruled that the
LASD officers testimony about their beliefs regarding the legality of their actions
was irrelevant. See, e.g., ER 3: 860; ER 4: 1219, 1292-93, 1376-77; ER 5: 1617, 1627.
Nor were Defendants permitted to present evidence about the advice they received
from counsel. See infra at Section III; ER 4: 1159, 1161, 1367; RT 1130, 2323, 3320.
Thus Reuben Martinez was permitted to testify that LASDs actions were
unlawful, but other LASD employees were precluded from testifying that they
believed the actions to be lawful. Once again, the district courts one-sided ruling
prejudiced the defense. See Waters, 627 F.3d at 357.
5.
The District Court Improperly Refused to Permit the Defense to

Question Assistant United States Attorney Lawrence Middleton as
an Adverse Witness.
The defense called AUSA Lawrence Middleton to the stand. Middleton was
the Chief of the Public Corruption and Civil Rights Section of the USAO. RT
2413. The prosecutors trying the case against Defendants worked with or for
Middleton. Id.
113
On direct examination, the defense sought to ask Middleton about the

substance of discussions at the August 29, 2011 meeting between LASD, the FBI,
and the USAO. ER 4: 1258-63. The court sustained several government objections
that the defenses questions were leading. E.g., ER 4: 1261, 1263. On cross, the
government elicited the following testimony: (1) no one at the meeting said
anything about arresting an FBI agent; (2) no one mentioned a plan to surveil any
federal agent; and (3) no one mentioned a plan to try to interview any federal agent.
ER 4: 1269.
On redirect, the defense sought to ask follow-up questions regarding the
August 29 meeting. RT 2520. When the government objected to leading
questions, the defense requested permission to lead Middleton as an adverse
witness under Fed. R. Evid. 611(c). Id. The court denied the request. Id. The
defense later renewed it, arguing, Hes an adverse witness. Hes the supervisor of
the prosecution team here. ER 4: 1275. The court again denied the request. Id.
(Theres been no showing that this witness is in any way hostile.). The defense
explained that the government had opened the door and asked whether the August
29 meeting included discussion of arrests and surveillance. ER 4: 1275A. The
defense wanted to walk through [Middleton]s experience as an investigator
knowing that if the Sheriffs department says investigate . . . included in
114
investigation is surveillance, arrest and interviewing people. Id. The court denied
the renewed request. ER 4: 1275B. Middleton answered several unrelated
questions and was excused. ER 4: 1275B-1276. Without leading questions, defense
counsel were unable to elicit the desired testimony.
The court erred in refusing to declare Middleton an adverse witness and
permit leading questions. Rule 611(c)(2) provides that, [o]rdinarily, the court
should allow leading questions . . . when a party calls a hostile witness, an adverse
party, or a witness identified with an adverse party. Although permitting leading
questions of neutral witnesses runs the risk that the evidence elicited would . . .
often be that of the lawyer, not of the witness, the same risk is not present when
the defense is permitted to ask leading questions of a Government agent or of
another witness closely identified with the interests of the government (e.g., the
complaining witness). United States v. Bryant, 461 F.2d 912, 918-19 (6th Cir.
1972). This Court has therefore criticized a district court which refused to permit a
defendant to use leading questions of a government investigator as an adverse
party. United States v. Tsui, 646 F.2d 365, 368 (9th Cir. 1981) (assuming error but
finding it harmless). Here, Middleton was the supervisor of the prosecutors who
tried the case against Defendants and was therefore an adverse witnessor, at the
very least, a witness identified with an adverse party. See Fed. R. Evid. 611(c).
115
Moreover, Middleton was a senior AUSA, not an unsophisticated layperson who

might be easily led by counsel.
The error was prejudicial. The defense tried repeatedly to establish not only
that the LASD investigation into contraband in MCJ was warranted, but also that it
was unremarkable to the many individualslawyers and officerspresent during
interagency meetings between the LASD, the FBI, and the USAO. The
government had just elicited damaging testimony from Middleton that there was no
discussion during the August 29 meeting of surveillance, interviewing FBI agents,
or arrests. ER 4: 1269. The defense should have been able to lead Middleton to
establish that (a) he understood that the LASD investigation mentioned during
the meeting would include standard techniques such as surveillance and witness
interviews, and (b) he did not object to LASDs proposed investigation.
Unrebutted, Middletons testimony that surveillance and interviewing were not
discussed lent credence to the government theory that LASDs actions were
unlawful and/or unauthorized and could not have been undertaken in good faith.
6.
The District Court Erroneously Excluded Evidence of Bacas

Attitude About the FBIs Investigationand the Specific Orders He
Gave in Late September.
The district court consistently rejected, on relevance grounds, defense

attempts to question witnesses about Sheriff Bacas demeanor during his meetings
116
with the FBI and the U.S. Attorney about the FBIs undercover operation within
MCJ. See, e.g., ER 4: 1132-34, 1163, 1239-42. The court also excluded as irrelevant
a video of Sheriff Bacas September 26, 2011 appearance on a local morning
television program, during which an outraged Baca said that the FBIs actions
constituted a criminal offense that he intended to investigate. Asked whether he
resent[ed] the FBIs intrusion, Baca responded, Oh yeah. ER 8: 2310. He
told reporters that the introduction of the cell phone was illegal and a
misdemeanor. And then theres a conspiracy law that goes along with it. Id. He
maintained that he still need[ed] to know what the reason [was] for the cell
phones introduction but emphasized that its unacceptable regardless. ER 8:
2311.
In support of the videos admissibility, the defense proffered that
Undersheriff Tanaka would testify that he watched Bacas television appearance
and relied on it for his actions, which included ordering ICIB to approach Marx.
ER 1B: 417. The defense also said that Paul Yoshinaga would testify that Bacas
television appearance affected the legal advice he gave to Leavins. ER 1B: 420.
Defense counsel argued that the fact that orders were coming from the top was
relevant as to Defendants good faith belief that they were following lawful orders.
ER 1B: 419. The district court excluded the video. ER 1B: 420.
117
In light of the district courts unambiguous rulings on the admissibility of

evidence concerning Bacas demeanor or attitude toward the FBIs investigation,
the defense was also unable to offer Exhibit 1502 at trial.29 Exhibit 1502 was a letter
that Sheriff Baca wrote to U.S. Attorney Birotte on September 26, 2011i.e., the
same date on which Craig and Long approached SA Marx. The Sheriff told Birotte
that he was extremely displeased with the FBI for introducing the cell phone
and felt it was illegal, unethical, and irresponsible. He told Birotte that LASD
would conduct an investigation into the breach of security and would investigate
Browns allegations that he got the phone from an FBI agent. He wrote that the
LASD investigation would encompass possible violations of California Penal
29
The district courts previous rulings regarding Bacas demeanor and

attitude toward the FBI investigation meant that Defendants did not offer Exhibits
1502 or 2005 into evidence. Offering the exhibits would have been utterly futile
and could have resulted in additional threats by the district court to sanction
defense counsel. See Dkt. 430 (ordering defense counsel to show cause why he
should not be sanctioned); ER 1B: 406-07 (instructing defense counsel to stop
pursuing a line of questioning otherwise were going to have another trial after
this one is over). The Defendants previous attempts to adduce evidence
concerning Bacas demeanor, attitude, and orders are sufficient to preserve the
effective exclusion of Exhibits 1502 and 2005 for appellate review. See Dorn v.
Burlington N. Santa Fe R.R. Co., 397 F.3d 1183, 1189 (9th Cir. 2005) (where district
court had made definitive ruling on issue, any further objection would have been
superfluous and futile as well as contrary to the courts warning).
118
Code Sections 4575 and 4573, conspiracy, entrapment, coercion, and civil rights
violations . . . . ER 7: 2110. He closed the letter, One cannot break the law in
order to enforce the law. ER 7: 2111.
Bacas letter was followed by a list of written questions for the FBI
questions that were still unanswered as of September 26. Baca wanted to know
who authorized the FBI investigation, the names of the agents conducting it, the
number of FBI agents and supervisors who were involved in the decision to place a
cell phone in MCJ, and whether the FBI sought the advice or consent of the USAO
before introducing the cell phone. ER 7: 2113-16. He demanded to know whether
other phones were currently in the jail system, and he asked for a list of all
contraband given to inmates by the FBI. Id. This evidence, like other evidence
concerning Bacas attitude toward the FBI investigation and his orders regarding
the LASDs investigation, was improperly excluded as irrelevant.
The district courts ruling on the admissibility of evidence concerning
Bacas demeanor and explicit orders also led to the exclusion of Exhibit 2005, an
FBI memo detailing an interview with Cpt. Carey. Carey told the FBI that he met
with Baca, Tanaka, and Leavins on September 26. Carey reported that BACA
instructed ICIB to try and interview MARX and said, Just dont put handcuffs on
her. ER 7: 2153; see also ER 8: 2323. The Sheriff thus explicitly encouraged ICIB
119
to use an aggressive investigatory approach, up to and including threats to arrest

Marx, as long as investigators stopped short of actually arresting her. But the jury
never heard this evidence. See supra at 119 n.29.
The exclusion of the above-described evidence was prejudicial. For the false
statement counts, the video, and Tanakas testimony about it, would have shown
that the approach of Marx later that same day (and Longs comments to Marxs
supervisor) was the result of Defendants following the orders of their superiors.
The jury had to decide whether Craig and Long knew that their statements to Marx
and Narro were unlawful. ER 1A: 262. The video of Bacas television appearance
would have provided the jury with compelling evidence that Defendants were
acting under significant pressure from LASDs top official and that they acted in
good faith that Baca better understood both the applicable criminal law, and the
LASDs investigatory authority, than they did.
For the conspiracy count, the jury was instructed that Defendants had to
know the conspiracys object and intend to help accomplish it. ER 1A: 258. For
the obstruction counts, the government had to prove that the defendants acted
corruptly and with the intent to obstruct the grand jury investigation. ER 1A:
261. As with the false statement counts, the attitude and beliefs of the highestranking person in LASD would have heavily influenced how lower-ranking
120
members of the department would have viewed the FBI investigationor the
justification for the LASD investigation that resulted from it. Bacas firm belief
that the FBI had committed a crime, and his instruction that his staff investigate it,
would have strongly supported the defense theory that the defendants believed
their actions were undertaken pursuant to a lawful investigation and therefore
lacked the necessary mens rea for conviction. See United States v. Evans, 728 F.3d
953, 967 (9th Cir. 2013) (exclusion of evidence of abuse prevented defendant from
rebutting critical element of governments case with self-defense theory; reversing
conviction); United States v. Namvar, 498 Fed. Appx. 749, at *2 (9th Cir. 2012)
(exclusion of defense evidence regarding mens rea required reversal where
governments evidence that defendant had the requisite mens rea was thin and
where at least some evidence bolstered [defendants] theory that he had acted in
good faith).
The fact that several of the defendants themselves testified that they were
following the orders of their superiors does not render the exclusion of the abovedescribed evidence harmless. Defendants are entitled to evidence corroborating
their testimony. United States v. James, 169 F.3d 1210, 1214-15 (9th Cir. 1999) (en
banc). Furthermore, several of the defendants may never have met directly with
Sheriff Baca. But this does not mean they were not influenced by the fiery public
121
condemnations Baca issued, or by his very clear instructionspassed down to all

Defendantsabout what actions should be taken.
Nor was the presentation of extremely limited testimony that Sheriff Baca
was upset during his August 19 call with FBI Assistant Director Martinez (ER 4:
1237) and his August 29 meeting with the USAO (ER 4: 1160) sufficient to render
the exclusion of the above-describe evidence harmless. For one thing, the timing
was important: the evidence concerning Bacas September 26 television
appearance and letter to U.S. Attorney Birotte were critical to show that Leavins,
Craig, and Long were still doing the Sheriffs bidding as of that date. For Leavins,
this evidence was critical to rebut the false impression caused by Leavinss grand
jury testimony that everyone knew the FBIs conduct was legal as of September
8. ER 4: 1244. For another, the excluded evidence was of a different character
than mere comments that Baca seemed upset. During the September 26
television appearance, Baca expressed his continuing belief that the FBI had
committed multiple criminal offenses, which he swore to investigate. See ER 8:
2310. In a meeting with Tanaka, Carey, and Leavins that same day, he instructed
that ICIB should investigate Marx and do everything short of handcuffing her. ER 7:
2153; ER 8: 2323. The fact that Bacas rage continued into late September, and the
fact that he was personally involved in setting the parameters for Craig and Longs
122
contact with Marx, was critical evidence. Its exclusion requires reversal on all
counts.
7.
The Court Made Other Erroneous Evidentiary Rulings.
The court repeatedly applied the rules of evidence to exclude testimony

favorable to the defense. In addition to improper relevance exclusions discussed
above and in the separate brief of Craig and Long, the court also erred in the
following ways:
(1) Excluding as hearsay evidence that was either: (a) not an oral, written,
or nonverbal assertion, under Rule 801(a); or (b) not offered for the truth of the
matter asserted, under Rule 801(c)(2). E.g., RT 661-62 (excluding Exhibit 1102 and
explaining, I dont care what its offered for.); ER 2: 725-26 (excluding Agent
Dahles testimony that agents were aware that Michel offered to facilitate an
escape); ER 2: 753 (excluding Michels testimony that he told FBI that he thought
LASD investigators believed he had brought drugs into MCJ); RT 3321 (excluding
Craigs testimony that he heard about supremacy clause from Judge Torribio).
(2) Sustaining government lack of foundation objections despite there
being adequate foundation for the testimony in question. E.g., ER 4: 1131
(sustaining objection to question whether specific orders were given at August 20,
2011 Saturday meeting); ER 4: 1147-48 (sustaining objection to question whether
123
Assistant FBI Director Martinez ever told Tanaka that he wanted access to
Brown); ER 4: 1152 (sustaining objection to question whether Tanaka agreed with
decision to have 24-hour protection for Brown); ER 4: 1308 (sustaining objection to
question concerning what directive Sheriff or Undersheriff gave in week following
August 20 meeting regarding law enforcement contact with Brown); ER 5: 1460-61
(sustaining objection to question whether Leavins obtained approval of Carey,
Tanaka, and Baca to move Brown); ER 5: 1511-14 (sustaining objection to question
whether Leavins knew whether Marx surveillance was authorized); ER 5: 1515
(sustaining objection to question how Leavins knew Craig and Long were going to
meet with Marx).
(3) Excluding as irrelevant or pursuant to Rule 403 evidence demonstrating
that irregularities in the FBIs investigation justified the LASDs decision to
perform its own investigation. E.g., ER 2: 711, 753; ER 4: 1161; RT 932 (evidence
showing that the FBI made no effort to inform the LASD about the presence of
contraband at MCJ or the names of corrupt deputies); ER 2: 704-06; ER 3: 1080;
ER 4: 1143-45, 1226; ER 5: 1424-25 (evidence showing that the FBIs investigation
was a substantial departure from the ways in which the two law enforcement
agencies normally worked togetheri.e., in joint task forces); ER 4: 1296
124
(excluding Careys testimony about why he wanted to speak to the FBI agents who
were visiting Brown on August 23).
Each of these errors, alone, was prejudicial. Cumulatively, they resulted in a
one-sided presentation of evidence and the denial of Defendants right to present a
complete defense.
B.
Considered Cumulatively, the Evidentiary Errors Require

Reversal.
Many of the errors described above, even alone, require reversal. But even if
they did not, reversal would still be required on the basis that the cumulative effect
of the erroneous rulings was not harmless. United States v. McLister, 608 F.2d 785,
788 (9th Cir. 1979); see also Waters, 627 F.3d at 358 (Given that the district court
made a number of erroneous evidentiary rulings, we must determine whether the
errors were harmless.). In determining whether multiple evidentiary errors
require reversal, courts should consider factors such as the nature and number of
the errors committed, their interrelationship, if any, and combined effect; how the
district court dealt with the errors . . . , and the strength of the governments case.
United States v. Sanabria, 645 F.3d 505, 516-17 (1st Cir. 2011) (emphasis added).
Here, the excluded defense evidence showed that Defendants were following
orders that came from the Sheriff himself and that Defendants had legitimate law
125
enforcement and custodial justifications for their actions. All of the excluded
evidence countered the governments attempt to show a corrupt or willful mens
rea. The limitation on the cross-examination of witnesses and the admission of
irrelevant, highly prejudicial evidence concerning abuse in the L.A. county jails
compounded the harm to Defendants. Considered in combination, the erroneous
evidentiary rulings require reversal on all counts.
The district courts rulings also resulted in the denial of Defendants right to
a meaningful opportunity to present a complete defense. Holmes v. South
Carolina, 547 U.S. 319, 324 (2006). This right includes, at a minimum, . . . the
right to put before the jury evidence that might influence the determination of
guilt. United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010). Furthermore,
[t]he cumulative effect of multiple errors can violate due process even where no
single error rises to the level of a constitutional violation or would independently
warrant reversal. Parle v. Runnels, 505 F.3d 922, 927 (9th Cir. 2007).
This Court has reversed convictions where, as here, a district court
exclude[d] evidence that was necessary for the defendant to refute a critical
element of the prosecutions case. United States v. Pineda-Doval, 614 F.3d 1019,
1033 (9th Cir. 2010). In United States v. Boulware, 384 F.3d 794 (9th Cir. 2004), for
example, this Court held that the district court improperly excluded evidence
126
showing that the defendant did not own the property for which he was accused of
failing to pay taxes. Id. at 808; see also United States v. Whitman, 771 F.2d 1348,
1351 (9th Cir. 1985) (error to exclude evidence contradicting prosecutions theory
of motive); Stever, 603 F.3d at 755-57 (error to exclude evidence raising reasonable
doubt as to whether defendant or Mexican drug trafficking operation planted the
marijuana).
In this case, the district court prevented Defendants from presenting
evidence that would have shown that they lacked the requisite mens rea for their
convictions. The court excluded evidence showing that Sheriff Baca publicly
insisted that the FBI had committed a crime and instructed his employees to
perform an aggressive investigation. The court excluded evidence showing that
inmate Brown was moved because of legitimate concerns for his safety, rather than
for an obstructionist purpose. And the court precluded the defense from crossexamining both the one witness who testified that any LASD deputy ever saw the
writ for Anthony Brown, and a witness who testified that LASD lacked any
jurisdiction over the FBI. Alone and cumulatively, exclusion of critical evidence
going to Defendants intent in this case resulted in a denial of their right to a
complete defense. See Chambers v. Mississippi, 410 U.S. 284, 302 (1973). Reversal
is required.
127
V.
The Courts Dismissal of Juror Five Violated Defendants Sixth

Amendment Jury Trial Right.
A.
Introduction
On the fifth day of deliberations, Juror Five sent a note asking to be

dismissed from the jury. The district courts subsequent questioning of Juror Five
raised a reasonable possibility that her requestwhich she later effectively
withdrewwas due to her views about the merits of the case and the resulting
conflicts she was having with another juror (or jurors). Because of that, the court
violated the Defendants Sixth Amendment right to a jury trial when it dismissed
Juror Five.
Below, Defendants provide an overview of the applicable law, summarize the
relevant background, and then address the issue presented.
B.
Relevant Law
Federal Rule of Criminal Procedure 24(c)(1) allows a court to substitute an

alternate juror for a juror who is unable to perform or who [is] disqualified from
performing [her] duties. There is, however, a constitutional constraint on that
rule, which is dictated by the Sixth Amendments right to a jury triala court
may not dismiss a juror during deliberations if the request for discharge stems from
doubts the juror harbors about the sufficiency of the governments evidence.
United States v. Symington, 195 F.3d 1080, 1085 (9th Cir. 1999) (quoting United
128
States v. Brown, 823 F.3d 591, 596 (D.C. Cir. 1987)). The reason for this
prohibition is clear: To remove a juror because he is unpersuaded by the
governments case is to deny the defendant his right to a unanimous verdict.
Symington, 195 F.3d at 1085 (quoting United States v. Thomas, 116 F.3d 606, 621 (2d
Cir. 1997)). This limitation applies even if the juror himself requests to be
discharged from duty. Thomas, 116 F.3d at 622.
A practical problem that district courts face in this context is that they have a
limited ability to question jurors about the reasons underlying a request for
dismissal, due to the need to protect the secrecy of jury deliberations. See
Symington, 195 F.3d at 1086. If a court reaches what it believes to be the limits of
appropriate questioning, and some ambiguity remains, dismissal is prohibited so
long as there is any reasonable possibility that the impetus for [the request for]
dismissal stems from the jurors views on the merits of the case. Id. at 1087
(emphasis in original). Under such circumstances, the trial judge has only two
options: send the jury back to continue deliberating or declare a mistrial. Id.
While this rule may allow some irresponsible [juror] activity [to] remain outside
the courts powers to investigate and correct, Thomas, 116 F.3d at 622, that cost is
necessary to preserv[e] jury secrecy and safeguard[] the defendants right to a
unanimous verdict from an impartial jury, Symington, 195 F.3d at 1087.
129
C.
Relevant Facts
On the fifth day of deliberations, Juror Five sent a note to the court that said:
Due to duress, I would appreciate your consideration in
accepting my resignation from this case. Always loyal to our
justice system and the privilege to serve my decision has been
clouded with fear of retaliation.
ER 1B: 453, 426. Before bringing Juror Five into the courtroom to discuss the note,
the court said that it intended to (1) ask the juror if she feared retaliation from an
outside source, (2) explain to her that it was not unusual for there to be conflict
amongst jurors during deliberations, and (3) ask if her feelings impeded her ability
to deliberate. See ER 1B: 426-27.
When the juror was brought in, the court began by asking her if she had in
mind some outside source of retaliation. ER 1B: 429. The juror responded, Its
no one in specific. ER 1B: 429. The court then told the juror that it was not
unusual for there to be different opinions and for voices [to be] raised
during deliberations, and asked whether the jurors anxiety or duress [had]
reached a point where . . . you no longer feel that you can participate in the
process? ER 1B: 430. This exchange makes clear that the court understood that
the juror was feeling duress because her opinions differed from those of another
juror (or jurors), and that the deliberations had become heated. The juror did not
130
disabuse the court of this common sense reading of the situation. Instead, she
replied that she was not comfortable on a personal level, and she felt a broad
sense of duress that affects my decision. ER 1B: 430. Notably, she also said
that she could objectively consider the evidence, further confirming that the
problem was not with her ability to be impartial, but was instead due to her
disagreement with another juror (or jurors) about the weight of the evidence. ER
1B: 430. The court then said:
[W]hats important is that both sides are entitled to have a
fair and impartial juror, jurors[,] and that each juror can express
their views and reach a decision in this case and part of that
decision making process involves the free exchange of opinions
and ideas [amongst] your fellow jurors. And if your mindset or
emotional state is at a point where you could no longer do that I
just need to know that, if youre okay and just kind of venting,
thats fine. But I just need to make sure that you can continue
to participate in the process and have a full and fair exchange of
opinions and ideas with your fellow jurors.
ER 1B: 430-31 (emphasis added). The juror responded, I cannot. ER 1B: 431.
The juror then left the courtroom, and government counsel asked that she be
dismissed. ER 1B: 431-32. Counsel for Leavins objected, pointing out that
deliberation is a difficult process and if [Juror Five] disagrees with other jurors,
shes entitled to do that, and that her not feeling comfortable was not an
131
adequate reason to dismiss her. ER 1B: 432. Counsel for Smith requested that the
court ask the juror if theres anything that the court might do to alleviate [her
unexplained] concern about retaliation. ER 1B: 434; see also ER 1B: 435. The
court responded that the real problem was not the fear of retaliation issue raised
in the note, but that the juror said she could no longer participate in the
deliberative process and exchange views with her fellow jurors. ER 1B: 435.
Counsel for Smith replied that the jurors answers had been ambiguous on that
point, and the government said that it did not object to further inquiry. See ER
1B: 436.
The court had the juror brought back in and asked if there was anything the
court could do to help alleviate her concerns. See ER 1B: 437. The juror
responded, [T]he deeper I got into my own thought processes, I was not able to
come to a conclusion that it would be beneficial to be fair and honest. ER 1B: 437.
The court asked the juror if she felt that she could exchange views with your
fellow jurors in reaching a fair and just verdict in this case? She responded, I dont
feel that I can. ER 1B: 437 (emphasis added).
The court again excused the juror. Counsel for Leavins pointed out that the
courts last question focused on whether Juror Five believed that the jury would be
able to reach a verdict, and her response could indicate that she believed shes not
132
going to be able to reach a verdict because she disagrees with other jurors. ER 1B:
438. The court asked whether counsel wanted the court to just ask her once
again: Do you think that you can have a full and frank exchange of ideas with your
fellow jurors? ER 1B: 439. Counsel said yes. Id.
When the juror returned, the court asked her whether she could
appropriately deliberate, and this time the court did not add the qualifier about the
jurys reaching a verdict. The juror repeatedly responded that she could do so. See
ER 1B: 439-40. The juror also repeatedly assured the court that she had no
emotional feelings that would interfere with her ability to have a full and fair
exchange of ideas and views with her fellow jurors, or that would interfer[e] with
[her] ability to be fair and impartial. ER 1B: 440-41. At the conclusion of this
exchange, the court asked, And can you put aside whatever fear you have of
retaliation and be fair and impartial to both sides in this case? The juror
responded, Yes. I will, I can. ER 1B 440, 441. In short, the jurors responses
vindicated the concern raised by Leavinss counsel that the juror was worried not
about her ability to deliberate, but about the jurys ability to reach a verdict.
The court then called counsel to sidebar. ER 1B: 441. The court said it
wanted to know what is this fear of retaliation that shes experiencing, and
suggested further questioning. ER 1B: 441-42. Counsel for Manzo suggested
133
otherwise, and the court expressed its view that youre better off letting her go
[then] have the jury start over. Thompsons counsel agreed. ER 1B: 442. After
the court denied a request for the defense to confer, Smiths counsel requested that
the court conduct the further inquiry it had indicated it would conduct. See ER 1B:
442-43. Despite its earlier view, the court responded, [W]hat else could she
possibly say? ER 1B: 443. Leavinss counsel stated he maintained his position,
and the court responded, Okay, thats fine. Im just going to let her go. Juror
Five was dismissed and replaced with an alternate. See ER 1B: 443-44. The jury
reached a guilty verdict the next day.
D. 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.
There is at least a reasonable possibility that Juror Five asked to be
excused because of conflicts she was having with another juror (or jurors) about the
merits of the case. That the district court appreciated such a possibility is apparent
from its comment to the juror that disagreements during deliberations were
common, from its inquiry whether those disagreements were causing the juror
anxiety or distress, and from its agreement to conduct the follow-up questioning
suggested by defense counsel. The end result of that questioningthe juror
indicating that she could deliberate appropriately while not indicating that she
134
thought the jury could reach a verdictshows that the root of her initial request to
be dismissed was her conflict with other jurors about the merits of the
governments case.
There was a least as much ambiguity on that issue as there was in Brown and
Symington, both cases in which the courts held that a juror should not have been
dismissed.
In Brown, as in this case, the juror wrote a note to the district court asking to
be dismissed because he was not able to discharge [his] duties as a member of the
jury. 823 F.2d at 594. When questioned, he explained that he could not go
along with the RICO statute, and said, If I had known at the beginning of this
trial what the act said, I would have not said I could be impartial. Id. However,
moments later the juror said, Its the way [the statutes] written and the way the
evidence has been presented, and, If the evidence was presented in a fashion in
which the law is written, then, maybe, I would be able to discharge my duties. Id.
The D.C. Circuit held that dismissing the juror was error because the record
indicate[d] a substantial possibility that [the juror] requested to be discharged
because he believed that the evidence offered at trial was inadequate to support a
conviction. Id. at 596.
135
In Symington, eleven of the jurors were unanimous in their view that the
twelfth juror, Ms. Cotey, was unable to effectively participate in deliberations
(apparently because of cognitive difficulties), and seemed unwilling to deliberate.
See 195 F.3d at 1083-84. Two of those eleven jurors also made statements
indicating that their frustration with Cotey may have derived from their
disagreement with her on the merits of the case. Id. at 1084. Specifically, one
juror complained that Cotey was fixated on two elements, and the other said he
did not want to be blocked any more. Id. From this record, the Court
concluded that [w]hile there may have been some reason to doubt Coteys
abilities as a juror, there was also considerable evidence to suggest that the other
jurors frustrations with her derived primarily from the fact that she held a position
opposite to theirs on the merits of the case. Id. at 1088. Accordingly, the Court
held that it was error to dismiss Cotey and reversed Symingtons convictions. See
Id. at 1088.
In Symington and Brown, there was strong evidence that the dismissal
requests were based on reasons unrelated to juror disputes over the merits of the
governments case. After all, in Brown the juror said he disagreed with the law, and
in Symington all eleven jurors agreed that the twelfth juror was cognitively unable to
deliberate. Nonetheless, the courts held that dismissal was inappropriate because it
136
was possible that the reasons for the dismissal requests were related to the jurors
views on the evidence. In this case, the record is much murkier as to whether there
was any potentially legitimate reason for dismissal. In contrast, there is ample
evidence that what motivated Juror Fives original request to be excused was her
disagreement with other jurors about the merits of the case. That is apparent from
the district courts initial reaction to the note, its questioning of Juror Five, and the
final result of that questioning.
Notably, in subsequently denying a motion for new trial based on this issue,
the district court said that it believed there was just cause to remove [Juror Five ],
a juror who had repeatedly expressed . . . feelings of duress and preconceived
concerns of retaliation that were effecting her ability to deliberate . . . . ER 1B:
464. There are two responses to this.
First, after its initial, limited questioning of Juror Five about whether she had
any fear of retaliation (and her response that her fear did not relate to anyone
specifically), the court indicated that it was not particularly concerned about that
issue. Consistent with that, the court twice declined to ask follow-up questions
when requested to do so by Smiths counsel. The court could have asked such
questions without intruding on the secrecy of juror deliberations. It appears that
the court did not do so because it was evident that Juror Five did not really fear any
137
sort of retaliation. Instead, she was experiencing, in the courts words, anxiety
or duress over the jurors expressions of different opinions during
deliberations.
Second, and more important, the issue here is not whether there was just
cause to disqualify Juror Five. The issue is whether the court committed
constitutional error, which is determined by applying the test set out in Symington.
And [a]s in Symington, notwithstanding the cause that the trial court believed it
possessed to discharge the juror . . . , it was not justified in acting upon that cause
because there was a reasonable possibility that the request for removal was
directly connected to the jurors views on the merits. Williams v. Cavazos, 646
F.3d 626, 647 (9th Cir. 2011), revd on other grounds sub nom. Johnson v. Williams,
133 S. Ct. 1088 (2013).
VI.
The Defendants Did Not Have Fair Notice that their Actions Violated
Federal Criminal Law.
A.
Introduction
The above errors demonstrate that Defendants were denied a fair trial and
are entitled to have their convictions reversed. However, they should have been
tried at all, and a dismissal rather than a retrial should be ordered.
138
Defendants were indicted for participating in an authorized law enforcement

investigation that was directed and supervised by Sheriff Baca, Undersheriff
Tanaka, and numerous other high ranking LASD officials. The investigation was
conducted in accordance with state law and local procedures.
For those reasons, Defendants sought pretrial dismissal based on qualified
immunity and Tenth Amendment grounds, arguing they were entitled to the same
protection afforded federal officers charged with a state offense. CR 107, 117, 221,
122, 144. Given that the evidence before and after trial established that the orders
they received and their actions in carrying them out were not unreasonable,
Defendants should have been saved from a trial, just as federal agents would have
been had the tables been turned. The courts contrary ruling was error. ER 1B:
477.30
Because the court wrongly denied the motion to dismiss, Defendants relief
now lies in post-trial application of the due process protection of fair notice. 31 The
lack of fair notice is manifested by the federal removal statute, which expressly
30
Defendants Craig, Long, and Leavins filed interlocutory appeals based on

the Tenth Amendment immunity argument. CA 14-50183, 14-50184, and 15-50197.
This Court dismissed those appeals for lack of jurisdiction.
31
Defendants renewed their motion to dismiss at the close of the evidence.

ER 1A: 288-91.
139
anticipates and implicitly authorizes local officers to investigate federal agents for
violations of state law. 28 U.S.C. 1442(a). This prosecution was the product of a
dual sovereign skirmish and it should have been judicially terminated prior to trial.
This Court should rule that local officers are entitled to qualified immunity
defense, and further rule that the failure to grant that protection in this case
resulted in a violation of Defendants due process right to fair notice. The
convictions should be reversed and vacated. 32
B.
The Defendants Did Not Have Fair Notice that Their Actions
Would Subject Them to Criminal Liability.
The fair warning doctrine set forth in United States v. Lanier, 520 U.S. 259
(1997), rests on the principle that no man shall be held criminally responsible for
conduct which he could not reasonably understand to be proscribed, Bouie v. City
of Columbia, 378 U.S. 347, 351 (1964) (quoting United States v. Harriss, 347 U.S.
612, 617 (1954)). Lanier sets forth three related manifestations of the fair warning
requirement: vagueness, strict construction and rule of lenity, and the due
32
Much of the evidence proffered in support of the pretrial motion and

joindersER 8: 2274-2327was excluded at trial. Those improper exclusions are
the subject of a separate challenge to the convictions. See Section III, supra. The
totality of the evidence is addressed in this argument sectioni.e., both that
proffered by the parties pretrial and that adduced during trial.
140
process bar on a court applying a novel construction of a criminal statute to

conduct that neither the statute nor any prior judicial decision has fairly disclosed
to be within its scope. 520 U.S. at 266.
1.
Application of the Fair Warning Factors from Lanier

a)
Vagueness
The vagueness doctrine bars enforcement of a statute which either forbids

or requires the doing of an act in terms so vague that men of common intelligence
must necessarily guess at its meaning and differ as to its application. Connally v.
Gen. Const. Co., 269 U.S. 385, 391 (1926).
The Supreme Court has focused on the requirement that a legislature
establish minimal guidelines to govern law enforcement. Kolender v. Lawson, 461
U.S. 352, 358 (1983) (quoting Smith v. Goguen, 415 U.S. 566, 574 (1974)). Where
the legislature fails to provide such minimal guidelines, a criminal statute may
permit a standardless sweep [that] allows policemen, prosecutors, and juries to
pursue their personal predilections. Id. at 358 (quoting Smith, 415 U.S. at 575).
The lack of minimal guidelines for 1503 is illustrated in this Courts
recent decision in United States v. Bonds, 784 F.3d 582, 585 (9th Cir. 2015) (en
banc) (Kozinski, J., concurring) (The amorphous nature of the statute is also
141
at odds with the constitutional requirement that individuals have fair notice as
to what conduct may be criminal.).
The same dangers of chilling advocacy by attorneys in our criminal justice
system are present when applying the amorphous provisions of the omnibus
clause to law enforcement officials. The statute is vague and under Lanier the
Defendants did not have fair notice of its reach.
b)
Strict construction
The second Lanier factor requires that statutes be interpreted with the
traditional[] . . . restraint used to avoid lack of notice problems. United States v.
Aguilar, 515 U.S. 593, 600 (1995). The proper construction of 1503 in this
context is discussed in Sections II and VI and is incorporated herein by this
reference.
c)
Novel interpretation
The federal removal statute, 28 U.S.C. 1442, provides that when a federal
officer is charged with a state crime, that officer can remove the case to federal
court for a determination of whether the officer was acting under color of office.
If yes, the case is dismissed and the state takes no further action. If no, the criminal
prosecution can proceed in state court. The removal statute is key to
understanding why the charges in this case could not have been anticipated by
142
persons of common understanding. See 28 U.S.C. 1442(a). Given the function of

1442(a), the idea that state law enforcement officers can be charged federally for
conducting an authorized state criminal investigation raises serious constitutional
questions and militates in favor of finding a lack of fair notice that such conduct was
criminal.
A survey of cases considered under 1442(a), the federal officer removal
statute, demonstrates that in no other case has an unsuccessful prosecution resulted
in charges being filed against the state police officers who investigated the case in
the first instance. In Kentucky v. Long, 837 F.2d 727 (6th Cir. 1988), for example,
the state sought to prosecute an FBI agent for burglary. The state indictment was
based on the action of the agent in using an informant,33 to commit burglaries of at
least two locations. The matter was removed to federal court and eventually
33
Indeed, the FBIs use of confidential informants to engage in conduct that

violates state law is often the cause of tension between federal and state
jurisdictions. See F.B.I. v. Superior Court, 507 F. Supp. 2d 1082 (N.D. Cal. 2007)
(defendant asserted his status as confidential informant for the FBI as a defense to
charges of burglary, check fraud, and receiving stolen property. First the defense
and then the DA subpoenaed the FBI agent to testify, and the federal court
eventually quashed the subpoena); Florida v. Cohen, 887 F.2d 1451 (11th Cir. 1989)
(state subpoena directed to Deputy Marshal and other federal agents seeking
information on confidential informant).
143
dismissed, but not before the federal court held a hearing. There is no indication of
later charges against local officers for investigating and indicting the agent for his
questionable conduct. Similar cases include New York v. Tanella, 374 F.3d 141 (2d
Cir. 2004) (DEA agent indicted by State of New York for manslaughter for
shooting and killing drug dealer), Baucom v. Martin, 677 F.2d 1346 (11th Cir. 1982)
(FBI agent charged with bribery of state prosecutor), and Texas v. Carey, 885 F.
Supp. 940 (W.D. Tex. 1994) (case removed to federal court and then dismissed
after U.S. Fish and Wildlife officer conducting field review in Texas was charged
with misdemeanor criminal trespass). Interpreting 1503 to extend to the actions
of state law enforcement agents investigating a state crime involving a federal law
enforcement agent would be an impermissibly novel interpretation of the statute.
2.
Application of Lanier Mandates Immunity from Prosecution Under

Fair Notice Principles.
The Lanier Court held that the fair warning doctrine, as applied to
prosecutions under 18 U.S.C. 242, overlaps with the qualified immunity doctrine
applied in the civil liability context. The Courts analysis was not limited to the
242 context, however. And when the holding of Lanier is combined with the law
in the area of 28 U.S.C. 1983 qualified immunity cases as applied to state law
enforcement officers, it is clear that Defendants lacked fair notice in this case.
144
Messerschmidt v. Millender, 132 S. Ct. 1235, 1248 (2012), confirms that LASD
deputies are entitled to qualified immunity from civil liability for violation of
constitutional rights when conducting reasonable investigations with the approval
of their supervisors. Qualified immunity gives government officials breathing
room to make reasonable but mistaken judgments, and protects all but the plainly
incompetent or those who knowingly violate the law. Id. at 1244 (internal
quotation marks omitted).
The actions of Defendants were well within the circle of reasonableness and
should be immune from prosecution, as Defendants were acting at the direct behest
of the Sheriff and other commanding officers.
Bacas first contact with the FBI about the cell phone occurred on August
18, 2011, when the FBI learned its phone had been discovered. 34 ADIC Steven
Martinez called Baca and requested [that Anthony Brown] be placed in a
protective unit. According to the FBIs records, Baca assured the safety of
[Brown]. ER 8: 2300.
34
The FBI did not notify Baca or Tanaka when it began its investigation into
the use of excessive force at MCJ. There was history involved in the FBIs choice
to keep the Sheriff in the dark about the FBIs investigation and to remain closed
lipped once the cell phone was tied to them. See Sealed ER, submitted separately
by manual filing, at 24-25.
145
While Baca assured the safety of Brown, he was furious about the FBIs
actions. The LASD investigation into Browns cell phone possession revealed
additional allegations of smuggled narcotics. A series of communications ensued,
including a meeting with local United States Attorney Birotte. By the time Baca
met with Birotte, AUSA Middleton, and others on August 30, he was firm in his
position that the FBI broke the law, and he requested that the FBI work jointly with
LASD going forward. ER 8: 2327, 2302.
Baca repeated this sentiment and legal conclusion in his comments on the
morning news program Good Day LA on September 26, 2011, and in his letter to
Birotte that same day. ER 8: 2274. (([W]ell, its illegal, its a misdemeanor. And
then theres a conspiracy law that goes along with it.); ER 8: 2278.
The orders Baca issued in connection with his concerns were facially lawful
and they were carried out using standard, well-recognized law enforcement and
custodial techniques. The LASD and Defendants were investigating a documented
violation of state law as well as several possible additional violations, including the
smuggling of narcotics into MCJ as well as allegations involving prior cell phones
being smuggled into MCJ. Because 1983 qualified immunity would apply on
these facts, due process fair notice requirements require that the convictions be
reversed.
146
3.
State Law Enforcement Investigation of Criminal Law Violations Is

a Power Reserved to the States Under the Tenth Amendment.
As many commentators have noted, there is tension between the Tenth

Amendment of the United States Constitution and the Supremacy Clause. The
genius of the Founding Fathers to split the atom of sovereignty . . . means in
practical terms . . . that within the territory of the very state, two sovereignsthe
state government and the federal governmentreign check to jowl. From the
dawn of the Republic, this unusual arrangement has led to a fair degree of conflict,
as the actions of one sovereign have encroached on the prerogatives of the other.
Idaho v. Horiuchi, 253 F.3d 359, 361 (9th Cir. 2001) (en banc), vacated as moot, 266
F.3d 979 (quoting United States Term Limits, Inc. v. Thornton, 514 U.S. 779, 838
(1995) (Kennedy, J., concurring)).35 The statesand not the federal government
historically have been sovereign in the area of criminal law enforcement.
United States v. Lopez, 514 U.S. 549, 564 (1995).
The mere fact that one of the targets of a state police agency investigation is
a federal law enforcement officer does not render the investigation itself a federal
35
State governments push back against federal assaults on state sovereignty

in multiple ways. See A. Raynor, The New States Sovereignty Movement, 90 IND. L.J.
613 (2015).
147
crime. Federal law enforcement agents do not have prospective immunity from
investigation, arrest, and prosecution for violations of state law. See Mesa v.
California, 489 U.S. 121, 129-33 (1989). The removal statute sets the boundaries of
this delicate balance in the relationship between state and national sovereigns. The
right of the state authority to investigate, arrest, and prosecute a federal agent who
has violated a state law is balanced against the federal governments interest in
protecting federal laws from undue interference by the state court. This is a classic
and important concern of a federalist system. As in the Court emphasized in Mesa,
The Governments view, which would eliminate the federal defense requirement,
raises serious doubt whether, in enacting 1442(a), Congress would not have
expand[ed] the jurisdiction of the federal courts beyond the bounds established by
the Constitution. 489 U.S. at 136 (quoting Verlinden B. V. v. Cent. Bank of
Nigeria, 461 U.S. 480, 491 (1983)). The Court concluded that 1442(a)(1) could
not be broadened by fair construction to fit the governments proposed
meaning. Id. at 139.
As demonstrated above and confirmed by the federal removal statutes, there
is no provision of law that precludes a state investigation of a federal agent for
violation of the state criminal code. Interpreting 1503 to cover that conduct does
not withstand constitutional scrutiny. The Lanier factors, the Tenth Amendment,
148
and proper interpretation of 1442(a) all weigh in favor of finding that fair notice
was lacking.
The district courts ruling should be reversed and the convictions vacated.
VII. The Convictions Rest On a Legally Mistaken Definition of
Corruptly.
The Defendants were charged with conspiring to violate and actually
violating the omnibus clause of 18 U.S.C. 1503(a). The conduct underlying the
alleged crimes demonstrates the need for reconsideration of this Courts holding in
United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981).36 Cf. United States v. Metcalf,
435 F.2d 754, 756-57 (9th Cir. 1970).
In Rasheed, this Court broadly defined corruptly as a particular mens rea,
meaning with the intent to influence, intimidate, or impede the due
administration of justice. This interpretation is inconsistent with the statutes
history and its text. Moreover, interpreting corruptly in this way renders the
statute unconstitutionally vague, lending itself to arbitrary and capricious
enforcement. Rather, the term corruptly is properly interpreted to mean a
36
The definition of corruptly adopted by Rasheed was unnecessarily

broad. Rasheed involved a defendant who ordered the destruction of documents
after receiving a grand jury subpoena duces tecum requesting them.
149
forbidden means of influencing, obstructing, or impeding the administration of

justice.
The history of 1503(a) is fully laid out in Judge W. Fletchers concurring
opinion in Bonds v. United States, 784 F.3d 582 (9th Cir. 2015) (en banc) (per
curiam). In short, this history supports the conclusion that Congress intended a
narrow construction of the term corruptly. Id. at 596 (Fletcher, J., concurring).
That reasoning and analysis are adopted here, in toto.
As discussed in Judge Fletchers concurring opinion, application of noscitur a
sociis is necessary because otherwise, the word corruptly, is inconsistent with its
accompanying words, giving unintended breadth to the Acts of Congress.
Gustafson v. Alloyd Co., 513 U.S. 561, 575 (1995); see also Yates v. United States, 135
S. Ct. 1074, 1085 (2015). As noted by Judge Kozinski in his per curiam opinion in
Bonds, this Court has construed corruptly so broadly that it does not
meaningfully cabin the kind of conduct that is subject to prosecution. Bonds, 784
F.3d at 584.
A.
This Case Exemplifies the Danger of the Broad Definition of

Corruptly.
The facts of this case exemplify the harm from the overbroad interpretation
of corruptly. All of the conduct that constituted the basis for obstruction of
justice was undertaken pursuant to apparently lawful orders issued by high-ranking
150
officials in the LASD. The orders to investigate the cell phone and its FBI origins,
or to protect a witness from harm at the hands of deputies or inmates, were not
apparently unlawful or unauthorized, and would not have appeared so to a law
enforcement officer. It is not as though Defendants superiors ordered them to
commit a malum in se offense. Nor were Defendants directed to prepare falsified
reports covering up blatant misconduct such as physical assault. The Defendants
in this case did not assault, injure, or threaten witnesses. Rather, the executive
members of LASD ordered defendants Craig and Long to do what they normally
do: investigate. Similarly, Baca and Tanaka ordered Leavins, Thompson, Smith,
and Manzo to do what they would normally do: protect an inmate who was at risk
by whatever means they saw fit.
Similarly, much of the conduct alleged to constitute witness intimidation was
the type of conduct normally engaged in by law enforcement officers. It is
commonly known, at least among prosecutors and the criminal defense bar, that
police officers may use deceptive tactics in interviewing witnesses to gain
cooperation. These tactics may include outright lies, as well as attempts to create
rapport with a subject through false sympathy. Yet, the government contended
that Craigs disparaging comments about the FBI and statements he made to
Michel regarding FBI manipulation and threats constituted obstruction of justice,
151
because it might have made Michel less likely to cooperate with the FBI. E.g., ER
6: 1774, 1779. Likewise, the government contended that Craigs directive that
Michel not discuss the matter with anyone was obstructive, even though law
enforcement officers routinely tell witnesses not to discuss cases with others.
The broad interpretation of corruptly allows a defendant to be convicted
for obstruction of justice for doing something that is lawful and authorized.
Accordingly, this Court should reconsider its definition of corruptly.
B.
If Corruptly is Interpreted to Mean By Bribery, There Is

Insufficient Evidence to Sustain the Convictions.
As set forth above, the prosecution in this case depended entirely on showing
that legitimate acts were committed with the intent to obstruct justice. There
are no facts supporting a conclusion that the defendants engaged in conduct
approximating bribery. Accordingly, the evidence supporting the convictions for
conspiracy to obstruct justice and the substantive obstruction counts is insufficient.
VIII. The Case Should Be Reassigned to a Different Judge on Remand.
This Court may remand to a different judge if a party can show either
personal bias on the judges part or unusual circumstances. In re Ellis, 356
F.3d 1198, 1211 (9th Cir. 2004) (en banc). Whether unusual circumstances exist
depends on an assessment of three factors: (1) whether on remand the district
152
court can be expected to follow this courts dictates; (2) whether reassignment is
advisable to maintain the appearance of justice; and (3) whether reassignment risks
undue waste and duplication. United States v. Lyons, 472 F.3d 1055, 1071 (9th Cir.
2006), as amended on rehg in part (Jan. 11, 2007) (citing United States v. Peyton, 353
F.3d 1080, 1091 (9th Cir. 2003)). Because factors one and two are of equal
importance, a finding of either factor supports remand to a different district court
judge. United States v. Atondo-Santos, 385 F.3d 1199, 1201 (9th Cir. 2004).
Although reassignment in the absence of personal bias should occur only in
unusual circumstances, United States v. Withers, 638 F.3d 1055, 1068 (9th Cir.
2011), this Court has nonetheless reassigned numerous cases over the years. See,
e.g., Ellis, 356 F.3d at 1211 (remanding to preserve the appearance of justice because
judge had read presentence report and expressed strong views on its contents);
United States v. Paul, 561 F.3d 970, 975 (9th Cir. 2009) (reassigning for
resentencing given judges view that defendants abuse of trust trumped all other
mitigating factors combined); United States v. Reyes, 313 F.3d 1152, 1159-60 (9th
Cir. 2002) (reassigning to preserve the appearance of justice because judges
statement that he believe defendants were attempting to manipulate the system
may have caused the courts adamancy in its rulings).
153
A.
The Judge Exhibited Personal Bias Against the Defendants.
At sentencing, the district court made known its personal feelings about
Defendants. The court stated, Each of these defendants had a choice between
right and wrong, and they chose to join the side of wrong . . . . ER 1B: 554.
Addressing Defendants directly, the court admonished:
None you showed that kind of courage [to refuse orders]
. . . . [Y]ou broke the vow you made to protect the public, to
serve the community. You dont serve the public by using your
position to conceal wrongdoing in the jails. You dont serve the
public by hiding witnesses. You dont serve the public by
tampering with witnesses, and you dont serve the public by
threatening to arrest a FBI agent in some misguided effort to get
her to reveal the details of her investigation.
Perhaps its a symptom of corrupt culture within the
Sheriffs Department, but one of the most striking things aside
from the brazenness of threatening to arrest an FBI agent for a
crime of simply doing her job and videotaping yourselves doing
it, is that none of you have shown even the slightest
remorse. . . .
Your unquestioning loyalty to the Sheriffs Department is
not something to be proud of when that loyalty is perverted to
protect corrupt deputies and the inflated reputations of those in
command.
154
Your actions have not only embarrassed the Sheriffs

Department but every man and woman that puts on that badge
every day and puts their lives on the line. Your actions have
violated the trust put on you by the community. None of you
showed the courage to do what was right, to risk the scorn of
your fellow deputies by exposing their crimes.
***
It destroys the very fabric of our system of justice and erodes
a cornerstone that the rule of law applies to everyone equally,
that no person, whether he wears a badge or not, is above the
law.
ER 1B: 554-57.
The courts lengthy comments show that it had very strong feelings about
the defendants in this case. The court felt they caused irreparable harm to the
public and destroy[ed] the very fabric of our system of justice. ER 1B: 557.
The court felt their actions embarrassed law enforcement officers and violated
the trust of the public. ER 1B: 556. It is doubtful whether the court could put this
personal bias against Defendants aside on remand. But even if it could,
reassignment is necessary to preserve the appearance of justice. See United States v.
Quach, 302 F.3d 1096, 1104 (9th Cir. 2002) (reassigning case after judge stated that
he would not have granted governments 5K1.1 motion even if one had been
155
made, but explaining that, [b]y remanding to a different judge, we do not imply
that the district court erred).37
B.
The Judge Will Likely Not Be Able to Put Out of His Mind Several
Previously Expressed Erroneous Views.
The Defendants argue in this appeal that the court erred in a number of
different ways. There are central themes underlying many of the errors, however,
and on these themes the court has made clear that its opinions are fixed. For
example, the court firmly believed all of the following: (1) that, once LASD
discovered that the smuggled phone belonged to the FBI, it lacked authority to
perform its own investigation (ER 1A: 112 (Once they found out it was an FBI
phone, ballgames over.)); (2) that the advice of counsel was irrelevant to the
question of intent or good faith (ER 1B: 303-04, 320-23); (3) that Sheriff Bacas
firm belief that the FBI had committed a crime, and his late September instructions
to his staff, were irrelevant to the issues of intent and good faith (e.g., ER 1B: 419;
ER 4: 1130, 1133-34); (4) that the FBI and grand jury investigations were
intertwined and that obstruction of a grand jury investigation (rather than
37
Additional support for reassignment in the event of remand for defendant

Maricela Long has been submitted in camera concurrently with this brief. See
Longs Motion for Judicial Notice and exhibits thereto, filed manually.
156
proceeding) could satisfy 18 U.S.C. 1503 (see ER 1A: 261); and (5) that good faith
was not a complete defense to the offenses charged (see ER 1A: 55). The courts
unwavering opinions on these points suggest that it will be unable to change its
views in the event of a remand. Even if it were able to do so, reassignment is
necessary to avoid the appearance of injustice.
157
CONCLUSION
For the foregoing reasons, the convictions and sentences should be reversed
because 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, the exclusion of evidence, and the improper dismissal of a
juror, all of which deprived Defendants of their right to a fair trial on the charges
against them.
Dated: July 24, 2015
Respectfully submitted,
HILARY POTASHNER
Acting Federal Public Defender
GAIL IVENS
ELIZABETH RICHARDSON-ROYER
Deputy Federal Public Defenders
WILLIAM J. GENEGO
Law Office of William Genego
Attorney for Gerard Smith
Attorneys for Maricela Long

KEVIN BARRY MCDERMOTT
MATTHEW J. LOMBARD
Law Offices of Matthew J. Lombard
Attorney for Gregory Thompson
Attorney for Mickey Manzo

KAREN L. LANDAU
Law Offices of Karen L. Landau
TODD W. BURNS
Burns & Cohan, Attorneys at Law
Attorney for Scott Craig
Attorney for Stephen Leavins
158
ADDENDUM
18 U.S.C. 1503. Influencing or injuring officer or juror generally
(a) Whoever corruptly, or by threats or force, or by any threatening letter or
communication, endeavors to influence, intimidate, or impede any grand or petit
juror, or officer in or of any court of the United States, or officer who may be
serving at any examination or other proceeding before any United States magistrate
judge or other committing magistrate, in the discharge of his duty, or injures any
such grand or petit juror in his person or property on account of any verdict or
indictment assented to by him, or on account of his being or having been such juror,
or injures any such officer, magistrate judge, or other committing magistrate in his
person or property on account of the performance of his official duties, or corruptly
or by threats or force, or by any threatening letter or communication, influences,
obstructs, or impedes, or endeavors to influence, obstruct, or impede, the due
administration of justice, shall be punished as provided in subsection (b). If the
offense under this section occurs in connection with a trial of a criminal case, and
the act in violation of this section involves the threat of physical force or physical
force, the maximum term of imprisonment which may be imposed for the offense
shall be the higher of that otherwise provided by law or the maximum term that
could have been imposed for any offense charged in such case.
(b) The punishment for an offense under this section is-(1) in the case of a killing, the punishment provided in sections 1111 and 1112;
(2) in the case of an attempted killing, or a case in which the offense was
committed against a petit juror and in which a class A or B felony was
charged, imprisonment for not more than 20 years, a fine under this title, or
both; and
(3) in any other case, imprisonment for not more than 10 years, a fine under
this title, or both.
159
STATEMENT OF RELATED CASES

This appeal is related to the appeal in United States v. Sexton, CA 14-50583,
within the meaning of Circuit Rule 28-2.6
s/ Gail Ivens
GAIL IVENS
160
CERTIFICATE OF COMPLIANCE
I, Gail Ivens, hereby certify that the foregoing brief is proportionately
spaced, has a typeface of 14 points, and contains 35,427 words.
s/ Gail Ivens
GAIL IVENS
161
CERTIFICATE OF SERVICE
I hereby certify that on July 24, 2015, I electronically filed the foregoing
Unopposed Motion for Leave to File Oversized Brief and Joint Opening Brief
of Defendants-Appellants 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: July 24, 2015
/s Edith Ramirez
EDITH RAMIREZ

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

UNITED STATES COURT OF APPEALS

Case No. 14-50440

UNITED STATES OF AMERICA,

Case No. 14-50441

UNITED STATES OF AMERICA,

Case No. 14-50442

UNITED STATES OF AMERICA,

Case No. 14-50446

UNITED STATES OF AMERICA,

Case No. 14-50449

UNITED STATES OF AMERICA,

Case No. 14-50455

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Attorneys for Maricela Long

KEVIN BARRY MCDERMOTT

Attorney for Gregory Thompson

Attorney for Scott Craig

Attorneys for Stephen Leavins

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d) ICIB tries to obtain information about the FBIs

The Jury Instructions Allowed Conviction on an Invalid Legal Theory. ......57

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5. Category 5 Threatening to Arrest Agent Marx ............................64

The Court Erred in Precluding the Testimony of a Key Defense

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3. Precluding Yoshinagas Testimony Infringed Leavinss

The District Courts Many Erroneous Evidentiary Rulings, Alone and

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7. The Court Made Other Erroneous Evidentiary Rulings. .............123

The Courts Dismissal of Juror Five Violated Defendants Sixth

VII. The Convictions Rest On a Legally Mistaken Definition of

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

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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FEDERAL CASES (cont.)

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JURISDICTIONAL STATEMENT AND BAIL STATUS

The excerpts of record are in nine volumes, consisting of Volumes 1A and

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their authorization and good faith defenses?