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

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Selected docket entries for case 1450440

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2 Submitted (ECF) Reply Brief for review. Submitted by
Appellant Gerard Smith in 1450440, Appellant Maricela
Long in 1450441, Appellant Gregory Thompson in
1450442, Appellant Mickey Manzo in 1450446,
Appellant Scott Craig in 1450449, Appellant Stephen
Leavins in 1450455. Date of service: 05/20/2016.
[9986030] [1450440, 1450441, 1450442, 1450446,
1450449, 1450455] (Genego, William)
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Case: 14-50440, 05/20/2016, ID: 9986030, DktEntry: 92, Page 1 of 96
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

Case No. 14-50455
Plaintiff-Appellee,
D.C. No. 2:13-cr-00819-PA-2
v.
STEPHEN LEAVINS,
________________________________
Joint Reply Brief of Defendants-Appellants

________________________________
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HILARY POTASHNER
Federal Public Defender
GAIL IVENS
ELIZABETH RICHARDSON-ROYER
Deputy Federal Public Defenders
321 East 2nd Street
Los Angeles, CA 90012-4202
Telephone 213-894-5092
WILLIAM J. GENEGO
Law Office of William Genego
2115 Main Street
Santa Monica, California 90405
Telephone: 310-399-3259
Counsel 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
Counsel for Gregory Thompson

Counsel 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
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Table of Contents
Table of Authorities ................................................................................................................ iv
Introduction ................................................................................................................................ 1
I.
The Instructional Errors Denied Defendants The Right to Have the Jury
Consider Their Mens Rea Defenses of Reasonable Reliance On Apparent
Authority and Good Faith .......................................................................................... 2
A. The Court Erred In Denying a Public Authority Mens Rea
Instruction and In Giving an Erroneous Good Faith Instruction. ....... 2
1. It Was Error to Deny a Mens Rea Public Authority Instruction ... 2
2. The Courts Altered Good Faith Instruction Was Incorrect........... 8
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 ..........................12
C. The Improper Dual Purpose Instruction Undermined Defendants
Right to Have the Jury Consider Their Mens Rea Defense .................16
II.
The Jury Instructions Allowed Conviction on an Invalid Legal Theory ...18

A. Relevant Background .......................................................................................19
B. Standard of Review ...........................................................................................21
C. The Obstruction Counts of Conviction Should Be Vacated Because
the Government Pressed An Invalid Theory. ...........................................22
D. The Court Erred in Denying Defendants Requested Instructions that
the Government Must Show that They Intended to Obstruct a Grand
Jury Proceeding, Not Just an FBI Investigation. ......................................25
E. The Court Erred in Instructing the Jury that It Could Convict If It
Found that Defendants Intended to Obstruct the Grand Jury
Investigation, Rather that a Grand Jury Proceeding ........................34
F. The Court Erred in Failing to Instruct the Jury that Defendants Had
to Know Their Conduct Was Likely to Influence a Grand Jury
Proceeding ...........................................................................................................36
i
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III.
The Court Erred In Excluding the Testimony of Paul Yoshinaga, a Key

Defense Witness.. 37
A. Yoshinagas Testimony was Relevant..........................................................39
B. Yoshingagas Testimony Was Not Excludable Under Rule 403 .........42
C. The Error Was Not Harmless, and It Infringed Leavinss
Constitutional Right to Present a Defense .................................................44
D. The Government Improperly Capitalized on the Erroneous
Preclusion Order................................................................................................47
IV.
The District Courts Many Erroneous Evidentiary Rulings, Alone and

Cumulatively, Resulted in a Denial of the Right to Present a Complete
Defense ...........................................................................................................................50
A. The Erroneous Evidentiary Rulings Individually Require Reversal. 50
1. The Court Improperly Excluded Evidence Rebutting the
Contention that Brown Could Have Been Safely Held at MCJ. ..50
2. The Court Improperly Admitted Evidence Concerning Specific
Instances of Inmate Abuse. .....................................................................52
3. The Court Improperly Limited Cross-Examination of Pearson
Regarding the Writ. ...................................................................................55
4. The Court Erroneously Precluded the Defense From Crossexamining LASD Sergeant Martinez About a Legal Opinion. ....57
5. The Court Improperly Refused to Permit the Defense to Question
AUSA Middleton as an Adverse Witness ...........................................59
6. The Court Erroneously Excluded Evidence of Bacas Attitude
and the Specific Orders He Gave in Late September .....................60
7. The Court Made Other Erroneous Evidentiary Rulings................62
B. The Cumulative Effect of the Errors Require Reversal .........................63
ii
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V.
The Courts Dismissal of Juror Five Violated Defendants Sixth

Amendment Jury Trial Right ..................................................................................65
A. Standard of Review and Applicable Legal Test .......................................66
B. There Is a Reasonable Possibility the Jurors Initial Request to Be
Excused Stemmed From a Conflict Amongst the Jurors ......................68
VI.
The Defendants Did Not Have Fair Notice that Their Actions Violated
Federal Criminal Law ................................................................................................73
VII. The Convictions Rest On a Legally Mistaken Definition of Corruptly.. 75

VIII. The Case Should Be Reassigned to a Different Judge on Remand. ............76
Conclusion 77
Addendum...... 78
iii
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Table of Authorities
Federal Cases
Alcala v. Woodford,
334 F.3d 862 (9th Cir. 1993)...........................................................................................44
Armstrong v. Exceptional Child Ctr., Inc.,

135 S. Ct. 1378 (2015).......................................................................................................15
Bisno v. United States,
299 F.2d 711 (9th Cir. 1962)...........................................................................................41
Chapman v. California,
386 U.S. 18 (1967) ..............................................................................................................64
Clifton v. Cox,
549 F.2d 722 (9th Cir. 1977)...........................................................................................15
Comm. of Kentucky v. Long,

837 F.2d 727 (6th Cir. 1988) ...........................................................................................15
Idaho v. Horiuchi,
253 F.3d 359 (9th Cir.) .....................................................................................................15
In re Neagle,
135 U.S. 1 (1890) ................................................................................................................15
New York v. Tanella,
374 F.3d 141 (2d Cir. 2004) ............................................................................................15
North Carolina v. Cisneros,

947 F.2d 1135 (4th Cir. 1991) ........................................................................................15
Ohio v. Thomas,
173 U.S. 276 (1899) ....................................................................................................14, 15
Scheuer v. Rhodes,
416 U.S. 232 (1974) ...........................................................................................................74
United States ex rel. Drury v. Lewis,
200 U.S. 1 (1906) ................................................................................................................15
iv
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United States v. Aguilar,
515 U.S. 593 (1995) .................................................................................................. passim
United States v. Barker,

546 F.2d 940 (D.C. Cir. 1976) ..................................................................................... 7, 8
United States v. Beard,

161 F.3d 1190 (9th Cir. 1998) ........................................................................................73
United States v. Boulware,
384 F.3d 794 (9th Cir. 2004)...........................................................................................64
United States v. Brown,
562 F.2d 1144 (9th Cir. 1977) .................................................................................11, 20
United States v. Bryant,

461 F.2d 912 (6th Cir. 1972)...........................................................................................59
United States v. Bush,

626 F.3d 527 (9th Cir. 2010)...........................................................................................41
United States v. Cannon,

475 F.3d 1013 (8th Cir. 2007) ........................................................................................73
United States v. Christensen,
801 F.3d 970 (9th Cir. 2015).............................................................................67, 69, 72
United States v. Custer Channel Wing Corp.,
376 F.2d 675 (4th Cir. 1967)....................................................................................41, 43
United States v. Doe,
710 F.3d 1134 (9th Cir. 2013)................................................................................. passim
United States v. Egan,

860 F.2d 904 (9th Cir. 1988) ...........................................................................................22
United States v. Fierros,

692 F.2d 1291 (9th Cir. 1982) ............................................................................ 5, 6, 7, 8
United States v. Fulbright,
105 F.3d 443 (9th Cir. 1997)....................................................................................23, 36
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United States v. Hardy,

289 F.3d 608 (9th Cir. 2002)....................................................................................53, 60
United States v. Hopper,

177 F.3d 824 (9th Cir. 1999)...................................................................... 27, 29, 30, 31
United States v. Keys,

133 F.3d 1282 (9th Cir. 1998) ........................................................................................12
United States v. LopezAlvarez,
970 F.2d 583 (9th Cir. 1992)...........................................................................................64
United States v. Mkhsian,
5 F.3d 1306 (9th Cir. 1993) .............................................................................................12
United States v. Moran,

493 F.3d 1002 (9th Cir. 2007) ........................................................................................44
United States v. Orm Hieng,

679 F.3d 1131 (9th Cir. 2012) .................................................................................11, 47
United States v. Pablo Varela-Rivera,

279 F.3d 1174 (9th Cir. 2002) ........................................................................................54
United States v. Perdomo-Espana,
522 F.3d 983 (9th Cir. 2008)............................................................................................. 2
United States v. Perez,
116 F.3d 840 (9th Cir. 1997)...........................................................................................37
United States v. Petersen,

513 F.2d 1133 (9th Cir. 1975) ............................................................................ 3, 5, 7, 8
United States v. Rivera-Corona,

618 F.3d 976 (9th Cir. 2010)....................................................................................42, 54
United States v. Smith-Baltiher,

424 F.3d 913 (9th Cir. 2005)............................................................................... 3, 5, 6, 8
United States v. Stever,
603 F.3d 747 (9th Cir. 2010)...........................................................................................64
vi
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United States v. Symington,

195 F.3d 1080 (9th Cir. 1999) ..........................................................................67, 68, 69
United States v. Thomas,

116 F.3d 606 (2d Cir. 1997) ............................................................................................72
United States v. Thomas,

32 F.3d 418 (9th Cir. 1994) .............................................................................................48
United States v. Thompson,
37 F.3d 450 (9th Cir. 1994) .............................................................................................41
United States v. Triumph Capital Group, Inc.,
544 F.3d 149 (2d Cir. 2008) .....................................................................................28, 37
United States v. Velasquez-Bosque,

601 F.3d 955 (9th Cir. 2010)...........................................................................................63
United States v. Williamson,

439 F.3d 1125 (9th Cir. 2006) ........................................................................................63
Williams v. Cavazos,
646 F.3d 626 (9th Cir. 2011)...........................................................................................67
Federal Statutes
18 U.S.C. 1503 ............................................................................................................. passim
28 U.S.C. 1442(a) ....................................................................................................15, 73, 74
Federal Rules
Fed. R. Crim. P. 23...........................................................................................................66, 67
Fed. R. Crim. P. 30..................................................................................................................12
Fed. R. Evid. 403 ................................................................................................39, 43, 54, 61
Fed. R. Evid. 611(c)(2) ............................................................................................................59
Other Authorities
Seth P. Waxman & Trevor W. Morrison, What Kind of Immunity? Federal
Officers, State Criminal Law and the Supremacy Clause,
11 Yale L.J. 2195 (2003) ....................................................................................................74
vii
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INTRODUCTION
The governments 65 page statement of facts is an apparent attempt to
convince the Court the evidence of guilt was overwhelming, and any errors thus
harmless. But, as suggested by the jurys six days of deliberations, the evidence
was not overwhelming. Clerks Record: 431, 434, 435, 436, 465, 467.
In attempting to make it appear so, the government editorializes the facts.
The governments statement of facts makes conclusory assertions as to
Defendants purported intent that are unabashedly argumentative; attributes
roles and actions to individual Defendants they did not have; assigns arguments
to Defendants they did not make; fails to acknowledge evidence that contradicts
its assertions; and makes erroneous statements of fact. Collectively they
purposefully paint a picture of a carefully designed operation in which
Defendants played an integral and decision-making role, in sharp contrast to
what the record shows was, in reality, a rapidly unfolding series of events fueled
by a lack of trust between the Sheriff and the FBI.
The number of overstatements and misstatements in the governments
statement of facts precludes detailing them all, but their significance requires
that they not be ignored. Defendants have catalogued examples of such instances
in an addendum to this reply. See Addendum, infra at 77-86.
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REPLY ARGUMENT
I.
The Instructional Errors Denied Defendants the Right to Have the Jury
Consider Their Mens Rea Defenses of Reasonable Reliance On Apparent
Authority and Good Faith.
Four separate instructional errors prevented the jury from fairly
considering and accurately determining whether the government proved the

Defendants acted with the mens rea required by the obstruction of justice counts
and corresponding conspiracy charge. Defendants Joint Opening Brief (JOB)
38-56. The government fails to rebut the showing of error as to any of them.
A.
The Court Erred In Denying a Public Authority Mens Rea

Instruction and In Giving an Erroneous Good Faith Instruction.
1. It Was Error to Deny a Mens Rea Public Authority Instruction.

Defendants requested instruction stated that an officer who acts pursuant
to orders of superiors that the officer reasonably believes are lawful, lacks the
mens rea required for conviction. JOB 41. The government concedes that
Defendants were entitled to the instruction if it has support in the law and
some foundation in the evidence. Governments Answering Brief (GAB) 81,
quoting United States v. Perdomo-Espana, 522 F.3d 983, 987 (9th Cir. 2008).
Defendants requested instruction had both. JOB 41-45; 1 ER: 70. The
governments attempt to establish otherwise rests on its contention that a public
(13 of 97)
authority defense may only be used to excuse the commission of a crime, and
thus requires actual authority to commit the charged crime. Since the proposed
instruction did not include such a requirement, the government contends it was
not supported by the law. The governments arguments fail because the law
recognizes that a public authority defense based on reasonable reliance on
apparent authority may also negate mens rea, meaning no crime was committed,
and there was abundant evidence which supported that defense and the
requested instruction.
a)
The Instruction Is Supported By the Law.
Defendants identified decisions of this Court which support the requested

instruction, including United States v. Doe, 710 F.3d 1134, 1146-47 (9th Cir.
2013), which recognizes that for certain offenses, a public authority defense may
negate an element of the crime. Id. at 1146-47; JOB 41-42. Defendants also cited
several decisions which recognized the related principle that a defendants
reasonable belief that his or her actions were lawfully authorized, even if
mistaken, may negate the specific intent required for culpability, as it fits
within the narrow category of cases where a mistake of fact about the law is a
defense. JOB 39-40, quoting United States v. Smith-Baltiher, 424 F.3d 913, 924-
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25 (9th Cir. 2005); United States v. Petersen, 513 F.2d 1133, 1134-35 (9th Cir.
1975); see also, United States v. Fierros, 692 F.2d 1291, 1294 (9th Cir. 1982).
The government attempts to distinguish Doe by maintaining it only affects
the burden of proof, and not the elements of a public authority defense. The
government thereby asserts that Defendants position that they acted pursuant
to their superiors orders which they reasonably believed were lawful is
irrelevant, as they were not authorized to obstruct justice. GAB 83.
The governments attempt to limit Doe is proved wrong by the opinion
itself: the elements of a public authority defense depend[] on both the statute at
issue and the facts of the specific case. Doe, 705 F.3d at 1147. The statute at
issue here only proscribes acts done with a specific prohibited purpose, as
opposed to the general intent crime in Doe. And the facts established that
Defendants lacked the prohibited mens rea because they were acting pursuant to
what they reasonably believed were lawful orders of their superiors.
Where the defense is used to negate the element of mens rea, it means no
crime was committed, and does not require an agent who can empower someone
to commit an illegal act. Thus, the absence of such a requirement from
Defendants proposed instruction does not mean it is not supported by the law.
To the contrary, Does recognition that a public authority defense may negate an
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element of an offense provides sufficient legal support for the requested

instruction.
The governments attempt to discredit Defendants reliance on Smith-
Baltiher, Fierros and Petersen similarly fails.

The government asserts that the intent standard is different and simpler
in Smith-Baltiher than in this case. GAB 85-86. While the facts are different, the
intent standard is the same -- attempted illegal reentry is a specific intent crime
requiring one act with a specific purpose prohibited by the statute, entry into the
United States without the consent of the Attorney General (Smith-Baltiher, 424
F.3d at 923), just as a violation of 18 U.S.C. 1503 is a specific intent crime that
requires one act with the prohibited purpose of obstructing a judicial proceeding.
And just as a mistake of fact provides a defense to a crime of specific intent
such as attempted illegal reentry, Smith-Baltiher, 424 F.3d at 924, it provides a
defense to the specific intent crime of obstruction of justice. 1
The government twice mistakenly attributes a quotation to the Court in

Smith-Baltiher to suggest (incorrectly) that the defendant in that case was only
permitted to present a reasonable mistake of fact defense because knowledge of
an independently determined legal status [was] one of the operative facts of the
crime. GAB at 85, quoting Smith-Baltiher, 424 F.3d at 924; see GAB 86
(contrasting this case with Smith-Baltiher by asserting Defendants here did not
5
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The governments contention that Fierros does not support the requested
instruction because Defendants were not prosecuted under a complex
regulatory scheme[], is also wrong. GAB 86. Fierros identified two
circumstances where such a defense is available, and this case, like Petersen, fits
the first circumstance: where the defendant is ignorant of a condition that is one
of the operative facts of the crime. Id., 692 F.2d at 1294. In Petersen, the
defendant reasonably believed the person was authorized to sell the property in
question, and in this case, Defendants reasonably believed their superiors orders
were lawful.
The governments only attempt to distinguish Peterson is to assert in a
parenthetical that the Court in Fierros held that Petersen comes within one of
the two categories of cases where a defense of ignorance of the law is
permitted. GAB 86. The government presumably includes this assertion to
need knowledge of any independently determined legal status or condition[].)

quoting Smith-Baltiher, 424 F.3d at 924 (brackets added by government).
The quotation is actually from the Courts opinion in Fierros, which
Smith-Baltiher quoted. Contrary to the governments suggestion, the quote did
not refer to the crime at issue in Smith-Baltiher, attempted illegal entry, but
rather it referred to the crime in Petersen, embezzlement or theft of federal
property. See Smith-Baltiher, 424 F.3d at 924, quoting Fierros, 692 F.2d at 1294,
citing United States v. Petersen, 513 F.2d 1133 (9th Cir. 1975).
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suggest that Defendants reliance on Petersen is misplaced because of the general

rule that ignorance of the law is not a defense. GAB 84-85, citing Fierros, 692
F.2d at 1294. This attempt is meritless because in Fierros, the Court clarified
that Petersen is an example of a case where the mistake of law is for practical
purposes a mistake of fact. Fierros, 692 F.2d at 1294.
Importantly, Fierros cited the concurring opinion in United States v.
Barker, 546 F.2d 940, 945-54 (D.C. Cir. 1976), which parallels the circumstances
here the defendants there were prosecuted for conspiracy to violate civil rights
based on having burglarized a psychiatrists office to obtain records regarding
Daniel Ellsberg who was being investigated for leaking the Pentagon Papers. The
defendants maintained they lacked the mens rea required for conviction because
they reasonably relied on the apparent authority conveyed by CIA operative E.
Howard Hunt that their actions were authorized by the government. Id. 546 F.2d
at 945-54 (Wilkey, J., concurring). Barker is the seminal case recognizing that a
reasonable mistake of fact about the law provides a defense in the circumstances
of this case. The support it provides for the requested instruction here is
especially significant, as Fierros cites to Barker, and equates Barker with
Petersen. Further, Smith-Baltiher adopts that portion of the Fierross opinion.

Fierros, 692 F.2d at 1294; Smith-Baltiher, 424 F.3d at 924.
(18 of 97)
b)
The Instruction Was Supported By the Evidence.
The government does not dispute Defendants showing that there was
abundant evidence supporting the requested instruction, i.e., there was testimony
the Defendants actions were authorized by their superiors, and that it was
reasonable for Defendants to believe the orders were issued for a lawful purpose.
JOB 43-45.
Instead, the government makes the inapposite argument that it was proper
for the court to deny the instruction because there was no evidence Defendants
were authorized to obstruct justice. GAB 86-87. As the government well knows,
that was never the defense. Defendants repeatedly explained in the district court
and before this Court that their mens rea defense is that they did not obstruct
justice, not that they were authorized to do so. JOB 45. The absence of evidence
that Defendants were authorized to obstruct justice could not possibly justify
denying the instruction.
2.
The Courts Altered Good Faith Instruction Was Incorrect.
The court separately erred when it added a clause to the good faith
instruction that materially altered its meaning. As altered, the instruction
mistakenly allowed the jury to find that an officer who relied in good faith on a
(19 of 97)
superiors order that the officer reasonably and objectively believed were lawful
could possess the unlawful intent required for conviction. 2
The government does not dispute the premise that an officer who relied in
good faith on superiors orders that the officer reasonably and objectively
believed to be lawful could not have the corrupt intent required for conviction.
Nor does the government dispute that the only reason for the court to add the
clause was to change the meaning of the instruction to make it consistent with
the dual-purpose instruction and allow the jury to convict even if it found a
defendant relied in good faith on superiors orders. And the government offers
no explanation as to why the court would alter the good faith instruction in this
manner in Defendants trial, but not in either of co-defendant Sextons two trials,
except to neutralize Defendants good faith defense. See JOB 46, 49.
The court altered the meaning by adding the following underlined clause
to the agreed upon good faith instruction: Evidence that a defendant relied, in
good faith, on the orders the defendant received from the defendants superior
officers, and that the defendant reasonably and objectively believed those orders
to be lawful, is inconsistent with unlawful intent and is evidence you may
consider in determining if. . . . a defendant had the required unlawful intent.
JOB 48, quoting ER 1A: 262-63 (emphasis added).
(20 of 97)
Instead, the government responds by misstating Defendants claim. 3 The

government then argues there was no error because the clause added by the
court was technically not inaccurate. GAB 96; Id. 97. It is true that the jury
could consider such evidence, and thus the clause viewed in isolation was not
inaccurate. But that argument ignores the substance of the error.
In fact, the government never addresses the substance of the error, other
than indirectly, by suggesting Defendants argument depends on an
overwrought reading of the instruction. GAB 96. This assertion rests on the
proposition that the court added the clause for no reason, which of course cannot
be true.
The governments contention that only Leavins preserved objection to the
altered instruction is contradicted by the record. GAB 94. Smith accepted the
instruction as it had been proposed by the defense and government, but as the
The government twice represents, incorrectly, that Defendants claim is

that the court should have instructed the jury that such reliance provided a
complete defense. GAB 95, quoting JOB 95; GAB 97. Defendants used the
phrase complete defense in their opening brief to explain the nature of the
error, but never argued or suggested it should have been included in the
instruction. Defendants argument is that the instruction should have been given
as proposed by the parties, and as it was given in both Sexton trials, without the
additional clause.
10
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government concedes, Smith expressly added that he was preserving the dualpurpose objection. GAB 94, n.20. This was a reference to the clause added by the
court, as it altered the instruction to make it consistent with the dual-purpose
instruction. ER 1A: 241; JOB 49.
The governments assertion that the claim is subject to plain error review
as to the remaining Defendants is incorrect, as case law holds that an objection
to an instruction by one defendant preserves it as to other defendants. See
United States v. Brown, 562 F.2d 1144, 1147 n.1 (9th Cir. 1977); see also, United
States v. Orm Hieng, 679 F.3d 1131, 1141 (9th Cir. 2012). Thus, Leavins
objection preserved the error as to all defendants who did not actively oppose the
objection. Further, the Court should exercise its discretion to consider the error
as to all Defendants, given that the government can show no prejudice in
allowing the claim to be considered on behalf of the remaining Defendants, and
given that it would be particularly unjust to limit relief to Leavins and Smith.4
See United States v. Mkhsian, 5 F.3d 1306, 1310, n.2 (9th Cir. 1993)
(granting reversal to co-defendant who adopted instructional error argument of
co-appellant in his reply brief, where it would not be prejudicial to the
government, and because it would be unjust to reverse the conviction of one
defendant and not the other), overruled on other grounds, United States v. Keys,
133 F.3d 1282 (9th Cir. 1998).
4
11
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Additionally, even if the question is reviewed for plain error, the Defendants are
entitled to relief. The court plainly erred in altering the good faith instruction
and the error affected the Defendants substantial rights. Finally, any question
as to whether the claim was preserved should be resolved in favor of the
Defendants, given the trial courts failure to comply with Fed. R. Crim. P. 30.
JOB 49.
B.
Reversal Is Separately Required Because the Courts Instructions

Erroneously Advised the Jury that Local Officers Could Not
Investigate the Introduction of Contraband into the Jail.
The government makes two arguments in response to Defendants claim

that the court erred in instructing the jury that Anthony Browns possession of
contraband would not be a violation of specified California Penal Code
provisions if it was directed by the FBI, and that the effect of that erroneous
instruction was to tell the jury that Defendants could do no further investigation
once they found out that that was an FBI phone. . . . JOB 51; ER 1A: 112, 113,
257; see also ER 1A: 114-119; 138, 170-71.
The government first argues that it was not the purpose nor the import of
the instruction to advise the jury that Defendants could do no further
investigation after the LASD learned it was an FBI phone. GAB 106-07. The
record proves the opposite. The court plainly stated its view of the law that
12
(23 of 97)
Defendants could not investigate once the LASD learned it was an FBI phone,
and the court made known its intention to instruct the jury accordingly. JOB 51;
ER 1A: 112, 113 (local officers could investigate up until the time they found
out that that was an FBI phone. . . . Once they found out it was an FBI phone,
ballgames over.); see also ER 1A: 114-119; 138, 170-71, 213-223. The
prosecutors rebuttal argument using the courts own analogy confirms that the
instruction conveyed this point:
When the head of the FBI called Leroy Baca and accepted
[sic] it was an FBI phone, game over. There was nothing more to
do. It was done.
RT 4008 (emphasis added)
If, as the government contends, the courts concern and purpose was that
the jury not be misled by testimony from Leavins and Craig as to whether there
was possibly a violation of the Penal Code provisions, the court could have
instructed the jury as to the elements of the offenses. There was no need to
instruct the jury that there was no violation if the conduct occurred at the
direction of the FBI. ER 1A: 257.
The governments second argument -- that the courts instruction was
legally correct, i.e., that if Brown possessed any cellular telephone at the
13
(24 of 97)
direction of the FBI, no violation of California Penal Codes would have

occurred is also wrong. GAB 108.
The government relies on Ohio v. Thomas, 173 U.S. 276, 283 (1899),
stating that federal officers are not subject to arrest . . . under the laws of the
state in which their duties are performed. GAB 109. Thomas is not only
distinguishable on the facts, 5 but the quoted statement is not good law; it is
contradicted by a long history of cases dating back more than 100 years in which
federal agents were actually prosecuted, 6 and cannot be reconciled with
Thomas involved the application of a state law to a federal soldiers
home, and the home was a federal creation, and [was] under the direct and sole
jurisdiction of congress. Thomas, 173 U.S. at 281. Given that the home was
subject to the exclusive jurisdiction of the federal government, the police power
of the state [had] no application to its operation. Id., 173 U.S. at 283.
See, e.g., In re Neagle, 135 U.S. 1 (1890) (Deputy U.S. Marshal prosecuted
for murder); United States ex rel. Drury v. Lewis, 200 U.S. 1, 2 (1906) (enlisted
officer prosecuted for shooting suspect to prevent him from escaping); see New
York v. Tanella, 374 F.3d 141 (2d Cir. 2004) (DEA agent prosecuted by state for
killing drug dealer after high-speed chase); Comm. of Kentucky v. Long, 837
F.2d 727 (6th Cir. 1988) (FBI agent prosecuted by state after having approved
informants commission of burglaries); Clifton v. Cox, 549 F.2d 722 (9th Cir.
1977) (federal agent prosecuted for shooting suspect who fled in the course
execution of a search warrant).
6
14
(25 of 97)
Congress subsequent passage of 28 U.S.C. 1442(a).7 Thomas provides no

support for the courts instruction.8
The government also seeks to defend the instruction by equating
possession at the directions of the FBI with authorization under the Penal
Code sections. Thus, the government asserts that regardless of whether
authorization is an affirmative defense, or if the possession of contraband must
be unauthorized for a crime to occur, the instruction correctly stated that no
violation of these codes occurred if Brown possessed any contraband . . . at the
direction of the FBI. GAB 109-110, quoting ER 257 (ellipsis added by
government). But a federal agent is not among the people who are empowered to
Section 1442(a) allows federal agents charged with violations of state law
to remove the case to federal court and thus necessarily assumes that federal
agents can, and sometimes are, prosecuted for violations of state law for acts
engaged in while carrying out their duties as federal agents. See Idaho v.
Horiuchi, 253 F.3d 359, 376-77 (9th Cir.) (en banc), vacated as moot, 266 F.3d
979 (9th Cir. 2001).
8
Contrary to the governments apparent belief, Defendants did not cite

Armstrong v. Exceptional Child Ctr., Inc., 135 S. Ct. 1378, 1383 (2015) as
support for the proposition that federal agents can be arrested. GAB 109, n. 26.
Armstrong is only relevant in that it establishes that the Supremacy Clause does
not provide federal agents with the power to authorize violations of state law.
JOB 53.
15
(26 of 97)
grant authorization under the Penal Code sections. The government never
identifies the source of a federal agents supposed power to authorize an inmate
in a county jail to possess contraband under the Penal Code, because there is
none. JOB 53-54.
The governments suggestion that the instruction was not prejudicial
because the court instructed the jury that local officers have the right to
investigate potential violations of state law, including potential violations of
state law by federal agents, ignores that the instruction as a whole wrongly
advised the jury that Defendants could do no lawful investigation after the LASD
learned it was an FBI phone. JOB 54; pp. 12-13, supra. Further, while the courts
instruction did not expressly foreclose defendants arguments regarding their
intent (GAB 107), that was its practical effect. It foreclosed the jury from
accepting Defendants argument that their intent was to lawfully investigate,
because according to the courts instruction, there was no potential violation of
state law, and if there was no potential state law violation, local officers could not
investigate. JOB 54, ER 1A: 256.
C.
The Improper Dual-Purpose Instruction Undermined Defendants

Right to Have the Jury Consider Their Mens Rea Defense.
The parties disagreement as to the fourth instructional error impacting

the mens rea and good faith defense the courts dual-purpose instruction -16
(27 of 97)
turns on whether Defendants could simultaneously act in good faith for the
purpose of following orders they reasonably and objectively believed were lawful,
and do so for the unlawful purpose of obstructing justice. JOB 55-56; GAB 88-91.
The government attempts to rebut Defendants contention that these
purposes are mutually exclusive by analogizing the payment of money for the
mixed motive of friendship and a desire to bribe, and taking an action for two
unlawful purposes, to steal money from clients and evade taxes. GAB 90. The
governments analogies and argument fail because Defendants here did not
contend they were acting for a purpose that was lawful, but rather that their very
purpose was to act lawfully, in compliance with their obligation to obey

superiors orders. Governments Excerpts of Record (GER) 1552 (LASD,
Obedience to Laws, Regulations and Orders). Defendants did not maintain
they had a desire to follow a lawful order as the government puts it, which
wrongly suggests it was a voluntary choice, but rather that they had an obligation
to carry out all lawful orders and thus their purpose was to act in compliance
with the law.
The government suggests that even if these purposes were mutually
exclusive, there was no error because Defendants also claimed, regardless of
orders, that their actions were motivated by other reasons, such as keeping
17
(28 of 97)
Brown safe. GAB 90 (emphasis added). But Defendants maintained they took the
actions described by the government because of the orders, not regardless of
them.
Finally, the governments suggestion that there was no prejudice because if
the purposes were mutually exclusive then the instruction would have no effect
at all (GAB 90), ignores that the instruction endorsed the proposition that that
Defendants could act in good faith and simultaneously have the mens rea
required for conviction. The dual-purpose instruction, like the courts alteration
of the good faith instruction, allowed the government to advance the erroneous
argument that even if Defendants were carrying out what they believed was a
legitimate investigation, they could still be guilty.
II.
The Jury Instructions Allowed Conviction on an Invalid Legal Theory

The government repeatedly led the jurors to believe that they could
convict if they found Defendants intended to obstruct the FBI (as opposed to a
grand jury proceeding), and the district court made three instructional errors
that allowed conviction on that invalid theory. Though the four issues raised in
this context are closely related, the government treats them as independent,
which allows it to (1) make meritless waiver/forfeiture arguments, (2) press an
incorrect abuse of discretion standard of review, and (3) ignore the cumulative
18
(29 of 97)
effect of the instructional errors. Before turning to the governments arguments,

Defendants summarize key aspects of the relevant background.
A.
Relevant Background
The parties submitted disputed proposed jury instructions a month before

trial. Even at that point, it was apparent to defense counsel that the governments
case would be based largely on the theory that Defendants intended to obstruct
the FBI, rather than a grand jury proceeding. To prevent the jury from
convicting on that invalid theory, defense counsel proposed two similar
instructions that told the jury that the government had to prove Defendants
acted with the intent to obstruct a grand jury investigation, and not just an FBI
or US Attorneys Office investigation. ER 1A: 40; see also ER 1A: 37.9
The government objected to both instructions, claiming that they would
exclude a jury from finding obstruction even if the federal agents were acting as
arms of the grand jury. ER 1A: 38, 41. Defense counsel responded that [e]ven if
it were true that interference with an agent who was acting as an arm of the
The instructions requested by Leavins, Smith and Manzo preserved the

claim as to Thompson, Craig, and Long, as did their objections to the courts use
of the phrase grand jury investigation. See Brown, 562 F.2d at 1147, n. 1; ER
1A: 123-128.
19
(30 of 97)
grand jury could be the basis for a conviction, that would not obviate the need
for the requested instructions, but would instead require additional
instruction(s) telling that to the jury and defining what the government must
prove for an agent to be deemed an arm of the grand jury. ER 1A: 39.
At the first jury instruction conference during the fifth week of trial,
defense counsel said the instructions discussed above were necessary because
theres been a lot of mention during the trial of obstructing the FBI . . . . ER
1A: 131. Indeed, FBI Agent Dahle bluntly testified that Defendants were on
notice that it was an FBI investigation. They should not have obstructed it. ER
2: 758. Without explanation, the court declined to give the requested
instructions.
Defense counsel also argued that the Ninth Circuit model instruction on
1503(a)s elements was not sufficient because the meaning of obstructing the
due administration of justice needs to be . . . defined . . . ER 1A: 123. Defense
counsel pointed out that it would be problematic to define that phrase by
referring to an intent to obstruct a grand jury investigation, when in fact the
government must show that the defendant intended to obstruct a grand jury
proceeding. Id. The government responded, I dont think theres a significance
between grand jury proceeding and grand jury investigation. I think thats what
20
(31 of 97)
grand juries do, they investigate. Id. Defense counsel replied that the offense is
obstruction of a grand jury proceeding, not an investigation, and if you dont
restrict it to a proceeding and just have to do with an investigation, it becomes
much more amorphous and you run into an Aguilar problem. Id. 124, 126. By
an Aguilar problem, defense counsel was referring to the jurors being misled
into believing that they could convict based on finding that Defendants intended
to obstruct the FBI. See United States v. Aguilar, 515 U.S. 593 (1995).
The next day, the court came back to this issue and said that it would give
the model jury instruction but would replace the generic references to
obstructing justice with references to a grand jury investigation. ER 1A: 160.
Defense counsel maintained their objection, ER 1A: 224, but the court overruled
it and instructed the jurors that they had to find:
First, the defendant influenced obstructed or impeded or tried to
influence, obstruct, or impede a federal grand jury investigation; and
Second, the defendant acted corruptly with knowledge of a
pending federal grand jury investigation and with the intent to
obstruct the federal grand jury investigation.
ER 1A: 260-61.
B.
Standard of Review.
The government claims that the jury instruction issues raised here are
reviewed for an abuse of discretion. GAB 119. The central issue is whether the
21
(32 of 97)
government was permitted to proceed with an invalid legal theory the

instructional issues relate to the courts failing to prevent, or facilitating, the
government from proceeding on that invalid theory. The question whether the
government was permitted to proceed with an invalid theory is reviewed de
novo. United States v. Egan, 860 F.2d 904, 907 (9th Cir. 1988).
The government claims that the invalid theory issue should be reviewed
for plain error because defendants never raised [it] before the district court.
GAB 126. Defendants pointed out the governments invalid theory in the
disputed jury instructions, and again in the jury instructions conference, stating
that the requested instructions were necessary because theres been a lot of
mention during the trial of obstructing the FBI . . . . ER 1A: 131. The
government does not explain why this was insufficient, and it is not apparent
what more Defendants could have done to preserve the issue.
C.
The Obstruction Counts of Conviction Should Be Vacated Because

the Government Pressed An Invalid Theory.
The government agrees that [w]here a jury returns a general verdict that
is potentially based on a theory that was legally impermissible or
unconstitutional, the conviction cannot be sustained. United States v. Fulbright,
105 F.3d 443, 451 (9th Cir. 1997) (emphasis in original), overruled on other
grounds by United States v. Heredia, 483 F.3d 913, 921 (9th Cir. 2007) (en banc);
22
(33 of 97)
GAB 127. In contrast, a reviewing court may uphold a general verdict if there
was sufficient evidence on at least one of the submitted grounds for conviction,
even if there was insufficient evidence to sustain the other theories of the case.
Fulbright, 105 F.3d at 451 n.5. To avoid the automatic reversal that results in the
invalid theory context, the government re-casts Defendants claim as falling into
the insufficient evidence context, asserting that: (1) the parties disputes at trial
were entirely factual, not legal, see GAB 114, 126; thus (2) Defendants must be
claiming that the jury potentially convicted them based on a theory for which
there was insufficient evidence, rather than based on an invalid legal theory. See
GAB 126-29.
The governments premise is wrong, because the parties disputes at trial
were not purely factual. There were legal disputes with respect to the jury
instructions that Defendants proposed to prevent conviction based on an invalid
theory. The government prevailed on those disputes, and now the question of
whether the jury potentially convicted on an invalid theory is before the Court.
Notably, in arguing that the parties trial disputes were purely factual the
government relies on a portion of the opening brief that it misunderstands. See
GAB 126-27 (citing JOB 58-64). In that portion, Defendants discuss five
categories of so-called obstructive conduct on which the government relied at
23
(34 of 97)
trial, which related almost exclusively to the FBIs investigation. JOB 57. The
government claims that discussion demonstrates the parties dispute was
factual. GAB 126. But, that discussion shows that the government did countless
things that incorrectly led the jurors to believe they could convict under 1503
if they concluded that the Defendants intended to obstruct an FBI
investigation. JOB 57 (citing ER 2:758). That is, the discussion highlights
aspects of the governments trial presentation that led the jury to believe it could
convict based on an invalid theory, it does not show that the parties disputes
during trial were purely factual.
The governments answering brief unwittingly makes the same point,
because nearly its entire discussion of the trial evidence focuses on things
Defendants allegedly did to obstruct the FBI. See GAB 8-68. It is apparent that
none of those things, except for the alleged effort to hide Brown from a grand
jury, could be construed as having been done with an intent to obstruct a grand
jury proceeding. 10 The government does not even argue that those things were
10
One particularly glaring example is the governments claim that the

conspiracy to obstruct a grand jury proceeding began on August 18, 2011 (GAB
15), a point at which none of the Defendants knew anything about a grand jury
proceeding. See JOB 59, ER 2: 683.
24
(35 of 97)
done with an intent to obstruct a grand jury proceeding. Instead, in a two-page

section at the end of its summary of the trial evidence, which is titled
Knowledge of the grand-jury investigation, the government says that
Defendants knew there was a grand jury investigation because grand jury
subpoenas had been issued to LASD. GAB 68-70. The government seems to
think that knowledge of a grand jury proceeding, coupled with an intent to
obstruct the FBI, is enough to convict, even without a showing that Defendants
specifically intended to obstruct a grand jury proceeding. It is not indeed, it
amounts to less than the government had in Aguilar, where there was no dispute
that the defendant knew about and intended to obstruct a grand jury proceeding,
and the only question was whether he knew his conduct was likely to do so.
Having mis-cast Defendants invalid theory claim, the government does
not respond to it. Presumably the government has no good response.
D.
The Court Erred in Denying Defendants Requested Instructions that

the Government Must Show that They Intended To Obstruct a
Grand Jury Proceeding, Not Just an FBI Investigation.
With respect to the district courts refusal to instruct the jury that it had to
find Defendants intended to obstruct a grand jury proceeding, not just an FBI
investigation, the government makes two conflicting arguments.
25
(36 of 97)
First, the government claims that the court did not err because other
instructions that were given adequately covered defendants theory that they
merely obstructed an FBI investigation. GAB 119-20; see also GAB 121. As an
initial matter, Defendants did not request the subject instructions because their
theory was that they merely obstructed an FBI investigation. Instead, they
requested the instructions to prevent the government from getting a conviction
based on an invalid legal theory. And the government points to nothing in the
instructions given that told the jurors that they could not convict based on
finding that Defendants intended to obstruct an FBI investigation. Given the
governments trial presentation in this case, that risk was especially strong.
It is apparent that the government does not really believe that the
instructions given ameliorated that risk in any way, because the government also
argues that the requested instructions were misleading, and properly refused,
stating:
[A] defendants interference with law-enforcement agents
integrally involved in a grand-jury investigation can be sufficient to
satisfy Aguilars standard requiring intent to obstruct a grand-jury
proceeding rather than merely an FBI investigation independent . . .
of the grand jurys authority. [Citations omitted.] Smith, Manzo, and
Leavinss instructions suggested otherwise ..
GAB 120-21, quoting United States v. Hopper, 177 F.3d 824, 830 (9th Cir. 1999).
26
(37 of 97)
The government made the same argument in the district court, where it
claimed that the instructions would exclude a jury from finding obstruction
even if the federal agents were acting as arms of the grand jury. ER 1A: 38, 41
(emphasis added). That argument, and most of the case law on which it is based,
was addressed in detail in the opening brief, and that discussion will not be
repeated here. But there are two key points that bear emphasizing.
First, to convict under 1503 the government must show that the
defendant: (1) had the specific intent to obstruct a judicial proceeding, and an
intent to obstruct an FBI investigation is not enough; and (2) knew that his
conduct had the natural and probable effect of obstructing that proceeding.
See JOB 66-67; Aguilar, 515 U.S. at 601; United States v. Triumph Capital
Group, Inc., 544 F.3d 149, 166 n.16 (2d Cir. 2008). The first element was
announced long before the Supreme Courts opinion in Aguilar. The second was
added by Aguilar, and it is in that context that Aguilar referred, in dictum, to the
potential significance of agents acting as arms of the grand jury. That language
is the basis for the governments objection to Defendants proposed instructions.
Aguilars arm of the grand jury dictum indicates that it may be possible
for the government to establish that a defendant knew that his conduct was likely
to obstruct a grand jury proceeding, if it is shown that the defendant made a
27
(38 of 97)
false statement to an FBI agent while knowing that the agent was acting as an
arm of the grand jury. That is, the government may rely on an arm of the grand
jury theory to establish the second mens rea element discussed above. JOB 69.
But the arm of the grand jury theory cannot be used to establish the first
element discussed above, that the defendant had the specific intent to obstruct a
judicial proceeding. If a person did not intend to obstruct a grand jury
proceeding, he may not be convicted based on his having intended to obstruct an
FBI agent (e.g., for reasons of personal or professional animus), even if he knew
that agent was acting as an arm of the grand jury.
With the proper application of an arm of the grand jury theory in mind,
it is apparent that the governments objection to Defendants proposed
instructions that they would exclude a jury from finding obstruction even if
the federal agents were acting as arms of the grand jury was misplaced. The
proposed instructions related to the first element discussed above, to which the
arm of the grand jury theory does not apply. Though this point is discussed in
detail in the opening brief, JOB 66-69, and is the cornerstone of Defendants
argument, the government ignores it. One would at least expect the government
to say whether it agrees or disagrees with this point, but it says nothing.
28
(39 of 97)
While dodging this key point, the only thing that the government adds to
what it said in the district court is a selective quote from United States v. Hopper,
177 F.3d 824, 830 (9th Cir. 1999). Specifically, the government writes that a
defendants interference with law-enforcement agents integrally involved in a
grand-jury investigation can be sufficient to satisfy Aguilars standard requiring
intent to obstruct a grand-jury proceeding rather than merely an FBI
investigation independent . . . of the grand jurys authority. GAB 120 (quoting
Hopper, 177 F.3d at 830). This suggests that a defendant may be convicted
under 1503 without the government showing that he intended to obstruct a
judicial proceeding, so long as the government shows that the defendant
interfered with FBI agents who were integrally involved in a grand jury
investigation. The government points to nothing in Aguilar, or any other case,
that indicates that the core intent element under 1503 the intent to obstruct a
judicial proceeding can be short-circuited in that way.
And a closer look at Hopper belies this claim. The defendants in Hopper
argued that there was insufficient evidence to convict them for attempting to
obstruct an IRS proceeding. Though the case did not involve a 1503(a) charge,
the Court discussed Aguilar:
The indictment alleged that Aguilar had intentionally given false
information to federal investigators who were potentially going to be
29
(40 of 97)
called to testify before a grand jury. The Supreme Court held that
lying to an investigating agent who might or might not testify before a
grand jury did not constitute obstruction of justice. [H]ad the
investigators been subpoenaed or summoned by the grand jury, or had
there been proof that they were acting as an arm of the grand jury,
there would have been enough to support a conviction for obstructing
a judicial proceeding. Id. at 600-02. The Court held that in order to be
indictable for obstruction of a judicial proceeding, the defendants
actions must have a natural and probable effect of interfering with the
due administration of justice. Id. at 601.
Hopper, 177 F.3d at 830.

The Court in Hopper went on to conclude that the defendants in that case
knew that their actions would have the natural and probable effect of
prevent[ing] collection of money owed to the IRS, and thus knew their actions
would likely obstruct an IRS proceeding. See id. In sum, Hopper recognized that:
(1) Aguilar added a materiality-type element to 1503; (2) that element comes
with a knowingly mens rea attached; and (3) an arm of the grand jury theory is
relevant, if at all, to that materiality element, not to the core mens rea that the
defendant must have intended to obstruct a judicial proceeding. This last point is
the cornerstone of Defendants argument.
The second key point made in the opening brief is that even if the
governments arm of the grand jury objection to the proposed instructions had
30
(41 of 97)
merit, the solution was for the court to give Defendants proposed instructions
and instruct on what was necessary to convict on an arm of the grand jury
theory. See JOB 71. The district court did neither. That was particularly
prejudicial because the FBI case agent simply announced to the jury, I am an
arm of the grand jury, and the prosecutor stated that as a fact during closing.
See JOB 72 (quoting ER 2: 688; ER 6: 1756). As the case law discussed in the
opening brief shows, establishing an arm of the grand jury theory is not so
simple. JOB 71. More important, through this sleight of hand the government
converted the entire FBI investigation into the grand jury investigation,
substantially increasing the risk that the jury convicted based on concluding that
Defendants intended to obstruct the FBI, rather than a grand jury proceeding.
The government does not respond to this issue, other than to wrongly
claim that Defendants did not preserve it for appeal. GAB 120, n.28. In
responding to the governments objection to their proposed instructions,
Defendants said that [e]ven if it were true that interference with an agent who
was acting as an arm of the grand jury could be the basis for a conviction, that
would not obviate the need for the requested instructions, but would instead
require additional instruction(s) telling that to the jury and defining what the
31
(42 of 97)
government must prove for an agent to be deemed an arm of the grand jury. ER
1A: 39.
Though the government does not address the courts failure to instruct on
an arm of the grand jury theory, its answering brief shows that whatever that
theorys application, the evidence does not support it in this case. Specifically, in
the answering brief the government claims that the [t]he FBI served as an arm
of the grand jury, and cites two pages of the record as support. GAB 9. One cite
refers to Agent Dahles conclusory statement, Im an arm of the Federal Grand
Jury. ER 2: 688. The other is to the following testimony from Agent Dahle:
Federal grand jury subpoenas were issued on behalf of the grand jury.
Things that were produced pursuant to those subpoenas were
produced to the grand jury. Testimony the grand jury heard
testimony from witnesses before it. And agents would interview
witnesses and then sometimes present that testimony to the grand jury.
ER 2: 651.
This case does not involve any claims of obstruction with respect to grand
jury subpoenas, nor claims that Defendants tried to influence the testimony of
grand jury witnesses. Thus, the only portion of the quoted testimony that could
support an arm of the grand jury theory is that agents would interview
witnesses and then sometimes present that testimony to the grand jury.
32
(43 of 97)
Considered in light of the other evidence presented, this means that the
governments arm of the grand jury theory boils down to claiming: (1)
Defendants did things with respect to people that they knew, or suspected, FBI
agents wanted to interview; (2) the things Defendants did might have affected the
FBI agents interactions with those people; and (3) that in turn could have
affected the testimony that FBI agents might (i.e., sometimes) give to the grand
jury.11 That is far more attenuated than what happened in Aguilar, where the
defendant intended to obstruct the grand jury, and lied to agents about a subject
that he knew a grand jury was considering. The Court in Aguilar nonetheless
held, We do not believe that uttering false statements to an investigating agent
and that seems to be all that was proved here who might or might not testify
before a grand jury is sufficient to make out a violation of the catchall provision
of 1503. 515 U.S. at 600. Considering that the [t]he government did not show
. . . that the agents acted as an arm of the grand jury in Aguilar, id., it is hard to
know how the government thinks any sort of arm of the grand jury theory was
11
This discussion highlights the novelty of the governments theory is in

this case, because it does not involve submitting false documents to the grand
jury, lying to the grand jury, or trying to convince someone to do either of those
things.
33
(44 of 97)
established in this case. 12 And without a valid argument in that regard, the
governments objection to the requested instructions falls flat.
E.
The Court Erred in Instructing the Jury that It Could Convict If It

Found that Defendants Intended to Obstruct the Grand Jury
Investigation, Rather that a Grand Jury Proceeding.
The district court committed a second instructional error when it told the
jurors that they could convict if they found that Defendants acted corruptly . . .
with the intent to obstruct the federal grand jury investigation. ER 1A: 261
(emphasis added). As discussed in the opening brief, given the evidence
presented the only logical way for the jurors to understand the phrase the
federal grand jury investigation was that it encompassed anything that the FBI
did as part of its investigation. JOB 74.
The government ignores this argument and instead focuses on
Defendants related argument that the instructions language is contrary to a
wealth of case law that indicates that the government must show that a
defendant intended to obstruct a specific judicial proceeding. See JOB 73-74.
With respect to the latter argument, the government complains that defendants
12
Notably, the government did not establish that any Defendant expected
Agent Marx, or any other FBI agent, to testify in a grand jury proceeding.
34
(45 of 97)
cite no case supporting the proposition that a defendant must know precisely
which grand jury he obstructs, and argues that, [i]n any event, the evidence
overwhelmingly demonstrated defendants endeavor to obstruct any and all
grand-jury proceedings into abuse at LASD-operated jails. GAB 123-24. As for
the first claim, Defendants cited several cases that indicate that a defendant must
intend to obstruct a specific grand jury proceeding, and that is not consistent
with the governments theory that the Defendants could be convicted based on
an alleged intent to obstruct a grand jury investigation that encompassed an
unknown number of grand juries that were in session during unknown time
periods. See JOB 73. As for the governments any and all approach, that does
not square with [c]ourts hav[ing] construed the proceeding element fairly
strictly, and with the requirement that the government show the defendant
intended to obstruct a pending judicial proceeding. Fulbright, 105 F.3d at 450.
The government also argues that courts use the phrases grand jury
investigation and grand jury proceeding interchangeably, thus [t]he
distinction between the two is immaterial. GAB 122. Although the two phrases
can be used interchangeably in some contexts without creating problems that is
not the case where, as here, the government leads the jury to believe that an FBI
investigation is also interchangeable with a grand jury investigation. JOB 74-
35
(46 of 97)
76. Furthermore, the government mashes all of these concepts together under
the umbrella the federal investigation, a phrase it uses dozens of times in the
answering brief, and used countless times during trial. By using this phrase, the
government makes no distinction between a grand jury proceeding, a grand jury
investigation, and an FBI investigation. That is no accident the government
wanted the jury to equate an intent to obstruct an FBI investigation with an
intent to obstruct a grand jury proceeding.
F.
The Court Erred in Failing to Instruct the Jury that Defendants Had
to Know Their Conduct Was Likely to Influence a Grand Jury
Proceeding.
The district court also erred by failing to instruct the jury that Defendants
had to know their conduct had the natural and probable effect of influencing a
grand jury proceeding.
The government first claims that this issue was waived. This issue is
reviewed for plain error, and may also be considered in the context of assessing
the cumulative prejudice from multiple errors. See United States v. Perez, 116
F.3d 840 (9th Cir. 1997) (en banc); JOB 77.
As for the merits, the government says that Defendants cite no case
requiring the instruction they propose. GAB 124. But Aguilar makes clear that a
defendant may not be convicted if he lacks knowledge that his actions are likely
36
(47 of 97)
to affect the judicial proceeding, and if he did not kn[o]w that his false
statement would be provided to the grand jury. 515 U.S. at 599, 601 (emphasis
added). And as emphasized in the opening brief, the Second Circuit addressed
this issue clearly and persuasively in Triumph Capital, 544 F.3d at 166-68.
Next the government says that because the jury was instructed that it had
to find that the Defendants intend[ed] to obstruct the federal grand-jury
investigation . . . any additional reference to the Defendants knowledge of the
likely effect of their actions would have been redundant. GAB 124-25. To
support this argument, the government cites what the Second Circuit has
described as puzzling language in Aguilar that seems to equate (1) 1503s
core intent to obstruct a grand jury proceeding element with (2) the materiality
plus knowledge element that was the change wrought by Aguilar. See Triumph
Capital Group, Inc., 544 F.3d at 166 n.16. Despite that language, it is clear from
the following excerpt in Aguilar that a showing of mens rea beyond an intent to
obstruct a judicial proceeding is required:
Justice Scalia also apparently believes that any act, done with the
intent to obstruct . . . the due administration of justice, is sufficient to
impose criminal liability. Under the dissents theory, a man could be
found guilty under 1503 if he knew of a pending investigation and
lied to his wife about his whereabouts at the time of the crime,
thinking that an FBI agent might decide to interview her and that she
37
(48 of 97)
might in turn be influenced in her statement to the agent by her

husbands false account of his whereabouts. The intent to obstruct
justice is indeed present, but the mans culpability is a good deal less
clear from the statute than we usually require in order to impose
criminal liability.
515 U.S. at 602.
The reason the man is not liable is not because he lacked the core intent to
obstruct a grand jury proceeding, it is because he did not know that his actions
would likely obstruct a grand jury proceeding.
Finally, the government argues that Defendants do not claim that the
failure to instruct on this mens rea element affected the outcome of their trial . .
. . GAB 124. To the contrary, the opening brief states that [w]hen considered in
combination with the other instructional errors discussed above, the upshot is
that the jurors were never told that to convict they had to find that Defendants
(1) specifically intended to obstruct a grand jury proceeding, and (2) knew that
their conduct was likely to affect a grand jury proceeding. JOB 76-77. Without
those, and the other, requested instructions, there was no brake on the jury
convicting based on finding that Defendants intended to obstruct an FBI
investigation. See JOB 77.
38
(49 of 97)
III.
The Court Erred in Precluding the Testimony of Paul Yoshinaga, a Key

Defense Witness.
The district court wrongly excluded the testimony of Paul Yoshinaga,
LASDs Chief Legal Advisor, which was critical to the good faith and lack of
mens rea defense advanced by Leavins and the other Defendants, on the ground
that: (1) it was not relevant because Leavins was not entitled an advice of counsel
defense instruction; and, alternatively, (2) it was excludable under Fed. R. Evid.
403 because it was substantially more prejudicial than probative. JOB 86-91.
The governments attempt to defend the courts ruling on the first ground
fails because it is contrary to case law and logic, and the governments attempt to
defense on the second ground fails because the court never engaged in a
probative vs. prejudice analysis and any possible prejudice could have been
prevented with a limiting instruction.
A.
Yoshinagas Testimony was Relevant.
In the opening brief, Defendants cited several cases that indicate that even
if a defendant is not entitled to an advice-of-counsel instruction, evidence of his
interactions with counsel may be relevant to whether he acted in good faith,
without criminal intent. See JOB 87-90. The government responds that none of
the cases cited by defendants stands for the proposition that evidence which
fails to satisfy the requisites for an advice-of-counsel instruction is always relevant
39
(50 of 97)
and admissible to establish lack of criminal intent. GAB 231 (emphasis added).
Defendants did not make a categorical, always argument. It was the district court
that reasoned in that manner, concluding that because Leavins was not entitled
to an advice-of-counsel instruction, Yoshinagas testimony must be irrelevant.
The cases cited by Defendants show that conclusion was erroneous. 13
The governments attempt to distinguish the cases on the ground that
none dealt with 1503(a) and its requirement that an act be done with the
purpose of obstructing justice is meritless. GAB 228, 231, n.61. It is undisputed
that good faith provides a defense to the mens rea element of 1503(a), and the
cases cited by Defendants hold that reliance on legal counsel may be considered
in determining the question of good faith. JOB 89 (quoting United States v.
Custer Channel Wing Corp., 376 F.2d 675, 683 (4th Cir. 1967)).
Moreover, those cases rely on this Courts holding in Bisno v. United
States, 299 F.2d 711 (9th Cir. 1962), which this Court reiterated in United States
13
Because the court ruled that Yoshinagas testimony was irrelevant on the
ground that Leavins was not entitled to an advice-of-counsel instruction, it
presents a legal question and is reviewed de novo, and not for an abuse of
discretion as the government contends. GAB 225; United States v. Thompson, 37
F.3d 450, 452 (9th Cir. 1994) (evidentiary issue reviewed de novo if legal issue
predominates).
40
(51 of 97)
v. Bush, 626 F.3d 527 (9th Cir. 2010), both of which establish that evidence of a
defendants interactions with counsel is relevant to a good faith defense. The
government tellingly ignores Bush, and fails in its attempt to discount Bisnos
statement that evidence that a defendant consulted with an attorney is evidence
of good faith, 299 F.2d at 719, as dicta, as the question of the admissibility of
the attorneys testimony was necessary to the Courts holding. United States v.
Rivera-Corona, 618 F.3d 976, 987 (9th Cir. 2010).

The governments argument that Yoshinagas testimony was irrelevant
with respect to whether Leavins acted with the purpose of obstructing justice,
GAB 227, ignores that the intent requirement is not self-defining and it is subject
to a good faith defense. This made the testimony relevant to the specific points
detailed in the opening brief, all of which the government ignores. JOB 87.
As an alternative argument, the government seems to claim that
Yoshinagas testimony was irrelevant because Leavins did not tell Yoshinaga that
he was engaged in obstructive acts . . . such as tampering with potential
witnesses, keep[ing] Brown from a federal grand jury, and l[ying] to Special
Agents Marx and Narro with intent to obstruct a grand jury investigation. GAB
215, 223, 232. That is, the government assumes that Leavins had the required
criminal intent, then says Yoshinagas testimony was irrelevant because Leavins
41
(52 of 97)
did not tell Yoshinaga about his criminal intent. But the whole point of
Yoshinagas testimony was to show that Leavins did not have criminal intent,
and instead acted in good faith.
Stripped of its assumption of criminal intent, the governments argument
boils down to claiming that Yoshinagas testimony was properly excluded
because he did not know about every act undertaken by every person with
respect to the LASDs investigation. But evidence of reliance on legal counsel
may be considered in determining the question of good faith. Custer Channel
Wing Corp., 376 F.2d at 683. And Yoshinagas knowledge about the
investigation was substantial. He knew: (1) the origin and nature of the
investigation; (2) events that occurred during the August 29 meeting at the
USAO; (3) the legal justification for the investigation, as set out in the August 31
Carey/Baca memorandum that he helped draft; (4) Browns being moved to a
satellite jail and housed under an alias; and (5) Browns transfer to state prison
being delayed. JOB 83-86.
B.
Yoshingagas Testimony Was Not Excludable Under Rule 403
The government implies that the district court engaged in the required
Rule 403 balancing, and that review is for an abuse of discretion because there
were multiple conferences regarding Yoshinagas proposed testimony. GAB
42
(53 of 97)
232, n.63. But these mostly brief conferences, concerned the courts repeated
conclusion that without an advice-of-counsel instruction, Yoshinagas testimony
was completely irrelevant. See ER 1B: 323. There was no Rule 403 balancing
done, and review is therefore de novo. United States v. Moran, 493 F.3d 1002,
1012 (9th Cir. 2007).
As for prejudice, the government claims that Yoshinagas opinions were
replete with legal opinion that would have been unduly prejudicial and
confusing to the jury. GAB 234. This is contrary to the governments harmless
error argument (addressed below). GAB 237-38. The government does not
explain how Yoshinagas legal opinion could be effectively the same as the jury
instruction it cites, while also being unduly prejudicial and confusing to the
jury. But even if some aspects of Yoshinagas testimony were problematic, the
court could have limited the testimony or given a cautionary instruction, as it did
with similar testimony admitted against the Defendants. As this Court has
recognized, [i]f courts prohibit the introduction of any evidence that conflicts
with the prosecutions case because it might confuse the jury, the right of the
accused to present a defense would exist only in form. Alcala v. Woodford, 334
F.3d 862, 885 (9th Cir. 1993).
43
(54 of 97)
C.
The Error Was Not Harmless, and It Infringed Leavinss

Constitutional Right to Present a Defense.
The government claims that the erroneous preclusion of Yoshinagas

testimony was harmless because (1) the asserted relevance of Yoshinagas
testimony was that it supported defendants claim that they had authority to
investigate the FBI, and (2) the court gave an instruction that the Defendants
had such authority, making Yoshinagas testimony unnecessary. GAB 237.
In making this argument, the government mis-characterizes the asserted
relevance of Yoshinagas testimony. GAB 237. His testimony was sought to
support Leavinss defense that he acted with the good faith belief that he was
following lawful orders (JOB 77), and the instruction the government relies on
for its harmlessness argument does not address that issue. ER 1A: 256.
Moreover, the instruction the government references stated that the authority to
investigate may not be used for the purpose of obstructing justice, and
Yoshinagas testimony related to the issue of whether Leavins intent or purpose
was to obstruct justice.
The government also wrongly claims the error was harmless, and did not
infringe Leavins constitutional right to present a defense because Leavins
testified regarding the involvement of attorneys, and his testimony was
corroborated by [the testimony of witnesses] Tanaka and Gennaco. GAB 239;
44
(55 of 97)
see also GAB 236. A review of the testimony cited by the government refutes this
argument.
Tanaka testified that Gennaco was an attorney for the Office of
Independent Review (an arm of the Los Angeles County Board of Supervisors),
and that he and Sheriff Baca met with Gennaco on a few occasions to discuss
LASDs investigation of the FBIs conduct. See ER 4: 1156-59. But when Tanaka
was asked if Gennaco advised anyone at the LASD if there was anything illegal
about the investigation, a government objection was sustained. See id. 1159.
Gennacos testimony was similarly limited. He testified that in August
2011 he learned there was a cell phone related to the FBI found in the Los
Angeles jail. GER 778. He said that he met with Baca about this matter on about
five occasions, but Leavins was not present. GER 778-81. When asked to
elaborate on his concerns about the introduction of the cell phone into the jail,
a government objection was sustained. GER 782.
The government does not explain how this testimony could possibly be
considered an adequate stand-in for Yoshinagas testimony. Indeed, the court
shut down testimony about what advice Gennaco gave to Baca and Tanaka, just
45
(56 of 97)
as it did during Leavinss testimony with respect to what Yoshinaga told him. 14
ER 5: 1475-76, 1478-79, 1622-23. Furthermore, Tanaka said that he did not recall
Yoshinaga being at the August 29 meeting at the USAO (ER 4: 1180),
undermining Leavinss testimony, and Yoshinagas proffered testimony, on this
point. In short, the testimony cited by the government actually supports the
harmfulness of the exclusion of Yoshinagas testimony.15
14
The government claims that when the court did this during Leavinss
testimony, it was based on foundational objections. GAB 245, n.17. It is true that
when objecting government counsel said foundation, but there was no
foundational basis for precluding the answers Leavins was being asked what
Yoshinaga told him, and he obviously had a foundation for answering.
15
Testimony by Yoshinaga supporting Leavins position that he was acting

in good faith reliance on orders he believed were lawful would have benefitted
the other Defendants as well (see JOB 99), and thus the governments assertion
(GAB 211, 240), that the error is less harmful as to them is meritless. Moreover,
other Defendants did communicate with Yoshinaga. See, e.g., GER 1338 (email
sent to Yoshinaga by Manzo at the direction of Thompson providing Yoshinaga
with details of the investigation).
Further, preservation by Leavins and Thompson of the constitutional
claim that the error denied Defendants the right to present a defense (GAB 225,
235), preserved the constitutional claim as the remaining Defendants. United
States v. Orm Hieng, 679 F.3d at 1141.
46
(57 of 97)
D.
The Government Improperly Capitalized on the Erroneous

Preclusion Order
That harm was compounded by the governments capitalizing on the

erroneous preclusion of Yoshinagas testimony during its cross-examination of
Leavins, and during closing argument. The government treats this as a
freestanding misconduct claim and says it is reviewed for plain error. GAB 240.
That is incorrect, because the Court may consider whether the prejudice from
precluding Yoshinagas testimony was exacerbated by prosecution statements
that, purposefully or not, may have misled the jury. United States v. Thomas, 32
F.3d 418, 421 (9th Cir. 1994).
Without Yoshinagas testimony the government was able to present to the
jury a false picture as to six specific points. JOB 92-98. The government does not
respond to many of these points, and as to those that it does, two points bear
marking.
First, though the government tries to justify some of the misleading things
the prosecutor said during Leavinss cross examination and closing argument,
from a big picture perspective it cannot dispute that the prosecutor pressed the
false claim that Leavins communicated with Yoshinaga minimally at best.
Indeed, that was the thrust of the prosecutors argument --- that although Leavins
testified about Paul Yoshinaga and how he went to Mr. Yoshinaga for advice all
47
(58 of 97)
the time, that was rebutted by things he had to admit on cross-examination,

thus [h]e doesnt have good faith. JOB 95 (quoting ER 6: 1855-56). As the
prosecutor knew, had Yoshinaga been permitted to testify he would have said,
among other things, that [i]n August through October 2011, he met on a regular
basis with Leavins and was asked to give legal advice in connection with the
FBI causing a cell phone to be smuggled into the Mens Central Jail in the
summer of 2011 and the resulting Los Angeles Sheriffs Department
investigation. ER 1B: 329.
Second, Yoshinagas testimony would have prevented or at least
neutralized the prosecutors successful effort to unfairly capitalize on Leavins
mistaken grand jury testimony as to the August 29, 2011 meeting. In his grand
jury testimony, Leavins testified that at the August 29 meeting, U.S. Attorney
Birotte said, in effect, Butt out. We have an investigation. Dont interfere, ER
6: 1791. At trial Leavins said he was mistaken and that Birotte had not said that
at the August 29 meeting, but at a meeting a month later. The government
maintained in its closing that this was not a correction, and instead that Leavins
was trying to make things up, to run from the chronology in this case, to put his
knowledge that the U.S. attorney wanted the LASD to butt out of the
investigation, put it a month later, because he knows that its bad for him. It
48
(59 of 97)
shows his consciousness of guilt, meaning it shows he knows he is guilty. He

knows the truth is bad for him, so hes making up a story about being at a
meeting a month later. ER 6: 1792. The prosecutor made this argument while
knowing that Yoshinaga was precluded from giving testimony that Birotte did
not deliver any butt out message at the August 29 meeting.
The government claims in response that Yoshinagas proffer said nothing
about comments regarding butt[ing] out, one way or the other. GAB 245-46.
As the government acknowledges, however, Leavins used the phrase butt out
to describe the substance of Birottes message, which was that the LASD should
pull back from its investigation while the FBI conducted its investigation. GAB
48. On this point, Yoshinagas proffer states, Sheriff Baca also told Andr
Birotte that the Sheriffs Department would investigate the FBI. Andre Birotte
and the United States Attorneys Office representatives did not say that the Los
Angeles Sheriffs Department could not investigate the FBI. ER 1B: 332. Given
this, and the balance of Yoshinagas proffered testimony, it is apparent that
Yoshinaga would have testified that Birotte did not convey any sort of butt out
message at the August 29 meeting. See, e.g., ER 1B: 333 (The meeting ended
with an agreement to keep the dialog going between the Sheriffs Department
and the United States Attorneys Office.).
49
(60 of 97)
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 Erroneous Evidentiary Rulings Individually Require Reversal.
1.
The Court Improperly Excluded Evidence Rebutting the

Contention that Brown Could Have Been Safely Held at MCJ.
Exhibit 1060 is a 15 second excerpt of a video recorded by one of the

cameras on the 2000 floor of the Mens Central Jail (MCJ) showing an inmate
being attacked by another inmate with a razor because he was known to be a
snitch. ER 1A: 369 (CD transmitted with paper excerpts); JOB 102. The
attacking inmate committed the brazen assault by breaking out of his cell in a
matter of seconds by picking the outdated locking mechanism, and running to
the victim inmate who was in a nearby shower. ER 1A: 358-60; 369.
The government defends the courts ruling excluding Exhibit 1060 based
on the premise that: (1) the video was offered to demonstrate why Defendants
were ordered to move Brown out of MCJ; and, (2) the comparison for purposes
of determining the relevancy of the video is between Brown and the inmate in
the cell, i.e., the attacking inmate. GAB 151-52.
The governments premises are false and the courts ruling illogical, and
an abuse of discretion. The video was not offered to demonstrate why Brown was
50
(61 of 97)
moved from MCJ; rather, as the record makes clear, the video was offered to
rebut testimony the government elicited from Gilbert Michel that there were
cameras on the 2000 floor which made it was sufficiently safe to hold high risk
inmates such as Brown. ER 1A: 354-55, 356-60. The video was highly probative
to rebut the notion that Brown could have been safely held on the 2000 floor of
the MCJ because of the presence of cameras. This point was critical, because the
government theorized that the fact that Brown could have been safely held at
MCJ showed that the Defendants moved him for an obstructive purpose.
The courts ruling and the governments argument are also illogical
because both evaluate the relevance of the video by equating Brown with the
inmate attacker, reasoning the video was not relevant because it did not show
anyone going into the inmate-attackers cell or assaulting him. GAB 152,
quoting ER 1A: 358 (emphasis supplied by government). The relevant
comparison was Brown and the victim inmate snitch in the shower. ER 1A: 359.
While the inmate who broke out of his cell happened to be the inmate who had
been accused of murdering a deputy, that had no bearing on the purpose for
which the video was offered.
The governments argument that the error was harmless is meritless
because it is based on the same demonstrably false premise that the video was
51
(62 of 97)
offered to prove why Brown was ordered to be moved out of MCJ. GAB 153.
The measure of unfair prejudice is the impact of the governments unrebutted
testimony suggesting that because of the presence of cameras, Brown could have
been safely held on the 2000 floor.
The testimony elicited by the government was powerful because the jury
no doubt reasoned that if an inmate accused of killing a deputy could be safely
held on the 2000 floor, one who was implicating deputies in bringing in
contraband surely could be. But the video powerfully rebutted that notion by
showing that inmates who were known to be snitches were targets of inmate
assaults even when held in locked cells and under camera surveillance. The
unfairly prejudicial impact of the unrebutted testimony was magnified when the
prosecutor elicited other testimony suggesting the presence of cameras insured
an inmates safety. ER 5: 1531-32; JOB 103.
2.
The Court Improperly Admitted Evidence Concerning

Specific Instances of Inmate Abuse.
Defendants identified in their opening brief instances where the court

erroneously admitted testimony by Michel and William Courson regarding
52
(63 of 97)
specific instances of inmate abuse. 16 JOB 104-06. Defendants explained that

admitting this testimony was an abuse of discretion, because the government had
not, and could not, articulate how the specific instances were relevant. JOB 106.
The government responds by overstating the scope of Defendants
challenge, to include evidence of deputy-inmate assaults within the Mens
Central Jail generally, and spends several pages detailing that general
testimony. GAB 154-60. The government then argues Defendants did not
preserve their claim because they did not object to this general testimony, and
this general inmate-abuse testimony was relevant in any event. GAB 160-61.
The governments argument that the claim was not preserved because
Defendants did not object to other testimony either misapprehends Defendants
claim or is a strategic ploy to obscure the issue. Defendants opening brief
identified where they objected to the rulings they challenge on appeal, and they
only seek review as to the evidence admitted over those objections. 17 JOB 105-06,
citing ER 3: 867; ER 3: 898; ER 3: 935-37.
16
The objections by Smith and Manzo preserved the claim as to all of the
Defendants. See United States v. Hardy, 289 F.3d 608, 612, n. 1 (9th Cir. 2002).
17
Once the court overruled the objection to Michels testimony about

slam[ming] an inmate on the wall, Defendants did not need to continue to
object to the prosecutors follow-up questions, or the specific instances Michel
53
(64 of 97)
The government employs this same tactic in arguing that the court
properly admitted the evidence, offering reasons why testimony about general
inmate abuse was relevant. GAB 160-162. The government offers only one
theory of relevance for Michels testimony about his involvement specific
instances of violence, i.e., that it was proper impeachment of the governments
own witness. GAB 162, citing Fed. R. Evid. 607. Nothing in Rule 607, however,
allows a party to get evidence in the back door that is otherwise subject to
exclusion under Rule 403.
The governments theory of relevancy as to Coursons testimony regarding
instances of deputy violence committed against inmates is even more strained.
The government contends the evidence was relevant to his credibility, and to
defendants criminal intent, because Courson was not asked about the specific
instances when interviewed by Leavins, Craig and Long. GAB 162. Even if this
made sense, it would only justify questioning Courson about whether he was
testified about after the court overruled the defense objection to his testimony
about an instance where he and several deputies punched, kicked and tased an
inmate (ER 3: 867, 898), in order to preserve the claim, as any such objection
would have been futile. United States v. Pablo Varela-Rivera, 279 F.3d 1174,
1177-78 (9th Cir. 2002).
54
(65 of 97)
questioned about specific instances of violence, not the specific instances

themselves.
Nor did the court ever provide a plausible justification for admitting
testimony about specific instances of abuse. The court, upset with Defendants
suggestion in opening that their prosecution was the product of a turf war,
illogically considered that to be an attack on the legitimacy of the federal
investigation into inmate abuse, thereby opening the door to specific instances of
abuse. ER 1B: 379. To the contrary, Defendants acknowledged the legitimacy of
the federal investigation (GER 883), and did not object to testimony by Agents
Dahle and Marx about inmate abuse.
3.
The Court Improperly Limited Cross-Examination of Pearson

Regarding the Writ.
The defense sought to cross-examine Deputy Pearson to demonstrate his

testimony that he became aware of a writ for Anthony Brown sometime prior to
September 12, 2011, was unreliable and a product of conversations, speculation
and events after September 12. JOB 108-09; ER 2: 804, 807.
The government claims in response that the defense cross-examination
was not restricted because the defense was allowed to elicit that Pearson was not
sure whether he discussed the writ with Sexton, Smith or Manzo, thereby
impeaching his refreshed recollection direct testimony that he had discussed it
55
(66 of 97)
with all three. There was no error, according to the government, because
Smiths counsel got what he wanted GAB 166.
The defense wanted to question Pearson about conversations and events
after September 12, until his grand jury testimony 16 months later (which was
the source of his refreshed recollection), to demonstrate the more important
point that Pearsons testimony as to whether he had talked to anyone about a
writ for Brown prior to September 12 was unreliable and mistaken; but the court
would not allow it. 18 JOB 108-09. There was no basis for this restriction on cross
and the government does not offer any.
The governments contention that the error was harmless is based on its
assertion that Pearsons testimony was not the only evidence establishing Smith
and Manzos awareness of the grand-jury investigation and Browns role in it.
GAB 167 (emphasis added). What is most telling about that assertion is that the
government does not contend there was any evidence besides Pearsons
18
See JOB 108-09, ER 2: 807. The court ruled at side bar that the defense
would not be allowed to ask Pearson about the conversation and events, and
limited the defense to impeaching Pearson with his grand jury testimony. ER 2:
806-07 (But if you want to ask him if you want to ask him, look, when you
gave your testimony before the grand jury). The defense maintained it should
be allowed to question Pearson about the conversations and events after
September 12 and before his grand jury testimony. ER 2: 807.
56
(67 of 97)
refreshed recollection that prior to September 12 Smith or Manzo were aware

there was a writ for Brown. No other evidence supported an inference that a writ
for Brown had been received by the LASD. JOB 109-110. Preventing the defense
from proving Pearson was mistaken on this critical point could not be harmless,
much less harmless beyond a reasonable doubt. 19 JOB 110.
4.
The Court Erroneously Precluded the Defense From Crossexamining LASD Sergeant Martinez About a Legal Opinion.
The government does not and cannot explain how or why the courts
ruling sustaining the governments objection on speculation grounds to the
defense question of LASD Sergeant Martinez about the legal opinion the
government elicited from him was not error. 20 ER 3: 1109. The court not only
erroneously sustained the objection on grounds that it called for speculation, but
19
Because Pearsons testimony provided the only evidence from which it

could be inferred the writ for Brown had in fact been received by the LASD, the
restriction prejudiced all the Defendants, and was not harmless as to Defendants
other than Smith and Manzo, contrary to the governments contention. GAB
167.
20
Martinez responded Yes to the prosecutors leading question asking if

it was correct that the LASD had no jurisdiction over Federal agencies, which
included the FBI. The prosecutor contrasted this with the LASDs jurisdiction to
investigate local law enforcement agencies. ER 3: 1106.
57
(68 of 97)
in sustaining the objection the court allowed the government to block the
defense from questioning the witness about a legal opinion the government had
just elicited, again illustrating the courts pattern of erroneous and biased rulings
favoring the government. 21 Unable to explain why the ruling was not error, the
government simply asserts in a single sentence that the courts ruling was not an
abuse of discretion. GAB 172.
The government alternatively asserts that Defendants claims of prejudice
are outsized, and any restriction on cross harmless, arguing that it was
undisputed that the LASD had no jurisdiction over the FBI, as an agency
GAB 172 (emphasis in original.). But as the governments brief recognizes, the
opinion pertained to the propriety of surveilling the FBI (GAB 172), not
whether the LASD had subpoena power to compel production of FBI records,
which was the aspect of jurisdiction between the two agencies that was
undisputed. The governments suggestion that the prejudice from this restriction
on cross was cured by the courts instruction that local officers could investigate
federal agents (GAB 173), forgets that the courts instructions, and the
21
The defense question asked the witness about what he was aware of or
concerned with personally, not anything speculative. ER 3: 1109.
58
(69 of 97)
governments summation, told the jury that the authority to do so ended when
FBI ADIC Martinez told the Sheriff the phone belonged to the FBI.
5.
The Court Improperly Refused to Permit the Defense to

Question AUSA Middleton as an Adverse Witness.
The government defends the courts ruling denying the defense request to
examine AUSA Lawrence Middleton by leading questions as an adverse witness
under Fed. R. Evid. 611(c)(2) on grounds that the court found he was not
hostile, citing a Sixth Circuit case that was decided before the Federal Rules of
Evidence were adopted. GAB 178, citing United States v. Bryant, 461 F.2d 912,
918-19 (6th Cir. 1972). Rule 611(c)(2), however, entitles a party to use leading
questions to examine a witness identified with an adverse party regardless of
whether they appear hostile, because such a witness is deemed to be hostile as a
matter of law. 22 See Fed. R. Evid. 611(c), Advisory Comm. Notes, 1972
22
The Advisory Committee Notes to Rule 611(c) as proposed in 1972 and

as adopted in 1974 explain that the proposed rule declared certain witnesses
hostile as a matter of law and thus subject to interrogation by leading questions
without any showing of hostility in fact, specifically adverse parties or witnesses
identified with adverse parties. Advisory Comm. Notes, 1974; see 51 F.R.D. 315,
395-97 (1971). The prefatory clause Ordinarily, in subdivision (c) is only
intended to furnish a basis for denying the use of leading questions when the
cross-examination is cross-examination in form only and not in fact, as for
example the cross-examination of a party by his own counsel after being called
59
(70 of 97)
(Proposed Rules) & 1974. The courts ruling was clearly wrong and thus
constituted an abuse of discretion. 23
6.
The Court Erroneously Excluded Evidence of Bacas Attitude

and the Specific Orders He Gave in Late September.
Although the court allowed some of Sheriff Bacas comments about the
federal investigation and the provision of a cell phone to an inmate at the LA
County jails, the critical evidence was excluded: Bacas continuing and vocal
position on September 26, 2011, that what FBI agents had done in inserting a
cell phone into the jails in the hands of a convicted criminal was illegal and
dangerous. The court also excluded Bacas change in position after the
September 27, 2011, meeting with U.S. Attorney Birotte. JOB 117-120 (detailing
by the opponent (savoring more of re-direct) or of an insured defendant who

proves to be friendly to the plaintiff, and not to limit the right to use leading
questions when examining a witness who was deemed hostile as a matter of
law. Advisory Comm. Notes, 1972.
The Rule as adopted in 1974 did not alter the provision for witnesses
deemed hostile as a matter of law, but added a hostile witness (i.e., a witness
who was hostile in fact), to the list of those who could be examined by leading
questions, which of course requires a showing the witness is in fact hostile.
23
The government wrongly contends that the claim is subject to plain

error review as to defendants whose counsel did not also seek to examine AUSA
Middleton as an adverse witness. GAB 174; see Hardy, 289 F.3d at 612, n. 1.
60
(71 of 97)
excluded evidence).The governments argument that the exclusion of this

evidence was correct because there is no evidence the defendants saw Baca on
Good Day LA (GAB 181), fails because there was sufficient circumstantial
evidence from which the jury could have inferred Defendants had knowledge
and awareness of the Sheriffs position and statements.
First, evidence was introduced of the military-style chain of command. ER
1B:421, 2: 637, 701-02, 4: 1126, 1289. This supports the inference that everyone
who worked under the command of Sheriff Baca would be aware of his
statements and intentions. This inference was further supported by the proffers
that Tanaka watched the television appearance and relied on it for his actions,
which included ordering ICIB to approach Agent Marx. ER 1B: 417.
Second, there was evidence that Baca and Tanaka directed the
Department and that the ICIB reported directly to them. ER 1B: 421. Indeed, an
FBI 302 memorializing an interview with Carey contained the evidence that
Baca personally ordered the approach of Agent Marx. ER 7: 2153. The evidence
of that statement, combined with the fact that Long and Craig did approach
Agent Marx and, while referencing arrest, did not put handcuffs on her, is
additional circumstantial evidence that Leavins, Craig and Long were aware of
Bacas orders and his position and statements.
61
(72 of 97)
The government also posits that the video was excludable because there
were Rule 403 concerns with [it] given Bacas incorrect assertion that FBI agents
committed crimes. GAB 181. This assertion by Baca, whether correct or
incorrect, was highly relevant to the state of mind of his subordinates, including
the defendants. Whether Baca was putting on a show for political purposes or
actually believed that what Agent Marx and unknown others had done was a
violation of California law, the combination of his statements to that effect and
his orders to the defendants goes to the issue of the defendants good faith, which
is relevant to the mens rea element of all the charged crimes.
Finally, the error in the anticipated exclusion of Exhibits 1502 and 2005
was not waived. GAB 103. When counsel proposed to use a copy of the letter as a
demonstrative exhibit during opening statements, it was precluded by the court.
RT 5/27/2014: 437, 440. Parties are not required to engage in futile acts to
preserve issues for appeal. See JOB 118 n.29.
7.
The Court Made Other Erroneous Evidentiary Rulings.
The governments contention that Defendants should be deemed to have

abandoned the other erroneous evidentiary rulings raised in their opening
brief on the ground that they did not support them with cogent argument or
citation to authority is meritless. GAB 184.
62
(73 of 97)
As to each of the separate categories of errors, Defendants stated the

nature of the error and the governing rule of evidence, and provided specific
record citations for each erroneous ruling, with a parenthetical explaining why
the ruling was incorrect. Extended argument or analysis was not required or
warranted and would have unnecessarily extended the length of the Joint
Opening Brief. Defendants presentation stand in stark contrast to the examples
cited by the government where this Court has declined to review claims on
grounds that they were not presented adequately to permit review. GAB 18485. 24
B.
The Cumulative Effect of the Errors Require Reversal.
The government does not dispute that cumulative error is a separate

ground for reversal even where the individual errors standing alone would not
24
Id., citing, United States v. Williamson, 439 F.3d 1125, 1137-38 (9th Cir.
2006)(declining to address claim that oral recitation of findings and sentencing

differed from written findings, where no argument or authority presented);
United States v. Velasquez-Bosque, 601 F.3d 955, 963, n.4 (9th Cir. 2010)
(declining to reach defendants statement, in passing, that section 215
criminalizes more conduct than generic robbery because the state offense can be
accomplished through non-intentional force, because the argument was not
coherently developed in the briefs on appeal.).
63
(74 of 97)
require reversal, nor does the government dispute that the erroneous evidentiary
rulings can result in a violation of the constitutional right to present a defense. 25
Instead, in addition to maintaining there were no erroneous rulings and
thus no cumulative error, the government contends there was no constitutional
error because the court allowed Defendants to present other evidence that
supported their defense, and because the limits the court imposed were not
unreasonable and the rulings were not one-sided, as the court sustained
objections made by both side. GAB 187 & n. 44 (examples of court sustaining
objections made by both sides). While the numbers alone are not determinative,
the fact is that the court wrongly sustained prosecution objections repeatedly and
25
Contrary to the governments contention, Defendants constitutional

claim of having been denied the right to present a defense is not subject to plain
error. GAB 186. The constitutional nature of the claim does not pertain to the
substance of the evidentiary error, but the impact or consequence of the error, or
accumulated errors, and the resulting prejudice standard, i.e., whether the error
is subject to the rule of Chapman v. California, 386 U.S. 18, 24 (1967), requiring
reversal for constitutional errors unless they are harmless beyond a reasonable
doubt. As this Courts cases illustrate, objection to the evidentiary ruling also
preserves the claim that the error resulted in a violation of the constitutional
right to present a defense. See, e.g., United States v. Boulware, 384 F.3d 794, 808
(9th Cir. 2004); United States v. Stever, 603 F.3d 747, 755 (9th Cir. 2010); United
States v. LopezAlvarez, 970 F.2d 583, 588 (9th Cir.1992).
64
(75 of 97)
consistently throughout the trial, whereas the government does not cite a single
instance where a defense objection was erroneously sustained.
V.
The Courts Dismissal of Juror Five Violated Defendants Sixth

Amendment Jury Trial Right.
Two things, taken together, make Juror Fives dismissal unlike what
occurred in any of the cases cited by the government, or any case of which
Defendants are aware. First, juror dismissal usually results from a claim of
misconduct made by another juror or jurors. Here, no one complained about
Juror Five, she raised her concerns with the court. Second, after discussing her
concerns with the court, Juror Five stated, repeatedly, that she could continue
with deliberations, and there was no good reason to doubt her after all, it was
she who raised her concerns with the court. On the other hand, there was ample
reason to believe that her initial request to be excused stemmed from a dispute
amongst jurors about the merits of the case.
The government says that it was nonetheless appropriate for the court to
dismiss her because [t]he most logical conclusion to draw from the entire course
of questioning the one drawn by the district judge was that the jurors
responses, hesitation, and distress demonstrated that her request [to be excused]
was not based on any view of the evidence but rather on her emotional state,
65
(76 of 97)
which prevented her from being able to deliberate. GAB 267. The district court
did not say that it dismissed Juror Five due to her emotional state. But even if
it had, that would not have been permissible because there was at least a
reasonable possibility that Juror Five was emotional because of a dispute
amongst the jurors about the merits of the case. Furthermore, the governments
argument is based on mis-characterizing the course of questioning of the Juror.
A.
Standard of Review and Applicable Legal Test
The government says that Defendants claim is based on Fed. R. Crim.

P. 23 rather than the Sixth Amendment and thus is reviewed for an abuse of
discretion. GAB 258, 261 n.74.
The governments argument with respect to the applicable legal test is
difficult to follow, but boils down to the following: (1) United States v.
Symington, 195 F.3d 1080 (9th Cir. 1999) indicates that a court must be wary
when it questions jurors to determine if dismissal is appropriate, so as not to
intrude on the jurys deliberations, see GAB 261 n.74; and (2) only if the court
reaches the limit of appropriate questioning does the second part of the
Symington rule come into play, which is when the court asks whether there is a
reasonable possibility that the request for dismissal stems from a disagreement
amongst the jurors about the merits of the case. The government claims that
66
(77 of 97)
[b]ecause inquiry into Juror No. 5s request [to be excused] did not require
intrusion into the jurys deliberative process, this is not one of the rare or
infrequent cases triggering Symingtons rule, thus the reasonable possibility
test does not come into play. GAB 264.
This arguments misunderstands Symington which did not hold that the
reasonable possibility test is only triggered if the court intrudes on the jurys
deliberations. Indeed, that would not make sense, because the point of the
Symington discussion was that courts should refrain from exposing the content
of jury deliberations. 195 F.3d at 1086. The governments mis-reading of
Symington is also evident from United States v. Christensen, 801 F.3d 970 (9th
Cir. 2015), in which the Court noted that the district court appropriately limited
its questioning of jurors, and then went on to apply the reasonable possibility
test.26 Id., 801 F.3d at 1015-16
The key point is that Defendants have raised a claim of constitutional (not
Rule 23) error, thus (1) review is de novo and (2) the reasonable possibility test
applies to their claim. Williams v. Cavazos, 646 F.3d 626, 646 n.16 (9th Cir.
26
The court arguably should have questioned Juror Five more thoroughly,
as requested by defense counsel. See ER 1B: 434-35, 442-43. But the more serious
error here is the infringement on Defendants constitutional rights.
67
(78 of 97)
2011), revd on other grounds, 133 S. Ct. 1088 (2013) (Symington plainly
adjudicated a Sixth Amendment challenge and therefore if the record evidence
discloses any reasonable possibility that the impetus for a jurors dismissal stems
from the jurors views on the merits of the case, the court must not dismiss the
juror.). 27
B.
There Is a Reasonable Possibility the Jurors Initial Request to Be

Excused Stemmed From a Conflict Amongst the Jurors
The government contends [t]he most logical conclusion to draw as to the

jurors initial request to be excused was that the jurors responses, hesitation,
and distress demonstrated that her request was not based on any view of the
evidence but rather on her emotional state, which prevented her from being able
to deliberate. GAB 267. The district court, however, did not base its dismissal
on Juror Fives emotional state. ER 1B: 464.
27
Contrary to the governments assertion, the claim was preserved not just
as to Leavins, but also as to Manzo (whose counsel stated I dont want to be
excusing her . . . and added wed join in the objection. ER 1B; 442), and Smith
(whose counsel, while stating that he was inclined to have the juror excused,
never agreed to the juror being removed, and instead urged the court to make
further inquiry, ER 1B: 442-43). Long requested a mistrial, which should be
deemed to preserve the claim. ER 1B: 432. Should the court reverse on this
claim, Craigs convictions should be reversed for plain error: the error violated
Symington, and affected their substantial rights.
68
(79 of 97)
Rather than carefully question Juror Five about preconceived concerns of

retaliation, the court simply decided that we just ought to cut our losses and
dismissed her. ER 1B: 442. Even in the absence of additional information, the
record establishes at least a reasonable possibility that Juror Fives request
stemmed from a conflict amongst jurors about the merits of the case. The district
court clearly thought so at the time. ER 1B: 429-30 (voices might get raised).
The courts view was sensible, because, as in Symington, the jurors had
been deliberating for five days and a dispute at that point is consistent with a
juror attempting to engage in deliberations on the merits but unable to convince
his or her cohort. Christensen, 801 F.3d at 1016. Additionally, Juror Five did
not disagree that her anxiety and duress grew out of the jurors differing
opinions during deliberations.
The jurors answers to the courts limited questions support this analysis.
The court twice asked Juror Five if she felt that she could deliberate and reach a
decision or reach[] a fair and just verdict, and both times she said no; but (2)
when the court removed the reach a verdict or decision qualifier from its
questions, Juror Five said that she could continue. ER 1B: 430-31, 437, 439-41.
The obvious indeed only implication is that Juror Five felt that she could
69
(80 of 97)
continue deliberating, but also believed that the jurors would not be able to
reach a verdict because of their differing opinions.
The government disputes this reading of the record, claiming that
[d]uring the first two rounds of questioning, the district court . . . asked Juror
No. 5 questions that did not specifically include language about reaching a
verdict, and [even without that qualifying language] the juror responded that she
could not participate in the deliberative process. GAB 266. But the juror only
so responded in connection with reaching a verdict, not with engaging in the
deliberative process. ER 1B: 430, ER 1B: 430-31(whether Juror Five believed she
could deliberate with her fellow jurors and reach a fair and just verdict and a
decision, and it was only at that point that she said, I cannot.). 28
In short, the only negative responses from Juror Five involved reaching a
verdict, not the ability to deliberate. This analysis was proposed to the court. It
28
See also GAB 267, quoting ER 1B: 431) (quoting only the last part of
what the court said to Juror Five and leaving out both sides are entitled to have
fair and impartial juror, jurors and that each juror can express their views and
reach a decision in this case . . . . ER 1B: 430-31 (emphasis added). And ER 1B:
437 (emphasis added); GAB 267 (COURT: So do you feel that you can go back
into the jury room and have a full and free exchange of opinions and ideas and
exchange views with your fellow jurors in reaching a fair and just verdict in this
case? JUROR FIVE: I dont feel that I can.).
70
(81 of 97)
could be that [Juror Five] disagrees with the other jurors and she honestly holds
the belief that shes not going to be able to reach a verdict because she disagrees
with other jurors. ER 1B: 438. Neither the government nor the court disputed
that interpretation of Juror Fives answer. Instead, the court tacitly
acknowledged the reasonableness of defense counsels interpretation when it said
that it would question the juror again and remove the reach a verdict qualifier
from its questions. ER 1B: 439. When the court did that, defense counsels
concern was vindicated because Juror Five repeatedly told the court that she
could continue deliberating. ER 1B: 439-41.
The government next argues that the court was not required to take Juror
No. 5 at her word. GAB 265, n.75. This misses the point that the courts
questioning of Juror Five supports the conclusion that there is a reasonable
possibility that her initial request to be excused stemmed from a dispute
amongst jurors about the merits of the case. Put differently, the available
evidence [is not] sufficient to leave one firmly convinced that the impetus for the
jurors dismissal [was] unrelated to [the jurors] position[s] on the merits.
Christensen, 801 F.3d at 1012, quoting Symington, 195 F.3d at 1087, n.5.
The government falls back on claiming that the district judge in the
best position to evaluate the jurors situation concluded that Juror No. Fives
71
(82 of 97)
emotional state did not permit her to carry out her duties. GAB 259. But the
court did not say that Juror Fives emotional state made her unable to carry
out her duties. Although two months later the court agreed with government
counsels claim that the reporters transcript did not reflect the emotional strain
or distress that [Juror Five] was obviously feeling, ER 1B: 460, 464, the court
never said that it believed Juror Fives emotional state did not permit her to
carry out her duties. Moreover, seeming emotional is entirely consistent with
her having a conflict with another juror or jurors about the merits of the case.
Indeed, one of the first things that the court told Juror Five was that it was fine
if she needed to vent[] about conflicts that arose during the deliberations. ER
1B: 430-31. That is not a permissible basis for dismissing a juror, even if she
requests dismissal. United States v. Thomas, 116 F.3d 606, 622 (2d Cir. 1997).
Finally, the two cases that the government cites to support its claim that
Juror Five was appropriately dismissed due to her emotional problems are
readily distinguishable. GAB 259. In United States v. Beard, 161 F.3d 1190, 1192
(9th Cir. 1998), a personal dispute between two jurors devolved into name
calling, with one claiming to have felt raped. This Court agreed with the
district courts conclusion that dismissing both jurors was appropriate because it
was difficult to unravel what the dynamics were between the two, and the
72
(83 of 97)
situation had become a major distraction to the deliberations of the jury. Id. at
1193. In United States v. Cannon, 475 F.3d 1013, 1018-19, 1023 (8th Cir. 2007),
the Eighth Circuit approved of dismissing a juror before trial because she
provided a note from her doctor indicating that she had significant emotional
problems and anxiety. Both situations are a far cry from this case, where, in
talking to Juror Five, the district court itself essentially characterized her
emotional problem as related to conflicts inherent in deliberations.
VI.
The Defendants Did Not Have Fair Notice that their Actions Violated
Federal Criminal Law.
The government argues that: (1) Defendants claim they should not have
been tried is wrong because the remedy for a violation of the right to fair notice
is only available after trial (GAB 285); (2) Defendants fair notice claim is
meritless because their conduct came squarely within the scope of 1503, as
demonstrated by the verdict , and thus they cannot contend application of 1503
was vague as applied , (GAB 286-292); and (3) qualified immunity has no bearing
on their liability (GAB 292).
The government is wrong as to the first point, as Defendants claim that
they should not have been tried is not based on their fair notice claim. Rather,
Defendants maintain that under the circumstances of this case where state
73
(84 of 97)
officers are criminally prosecuted by federal authorities for investigating federal

agents for conduct that violated state criminal laws, but which the federal agents
claim they can authorize -- the Court should extend the law of qualified
immunity to provide state officers with protection from having to stand trial
equivalent to that provided federal officers under 28 U.S.C. 1442(a). See CR
107 (motion to dismiss). The Court has the authority to do so, as qualified
immunity is subject to judicial development. See Scheuer v. Rhodes, 416 U.S.
232, 240 (1974). This argument explains the relevance of Defendants reference
to qualified immunity and why their citation to cases under 28 U.S.C. 1442(a)
are not profoundly off-point. GAB 288; see Seth P. Waxman & Trevor W.
Morrison, What Kind of Immunity? Federal Officers, State Criminal Law and
the Supremacy Clause, 11 Yale L.J. 2195, (2003) (noting that Supremacy Clause
immunity is coextensive with qualified immunity under 1983).
The governments argument against Defendants fair notice claim proves
too much, because if a jury verdict for conviction precluded a fair notice claim
there could never be a fair notice claim. The governments reliance of the jurys
rejection of Defendants mens rea defense to support its view is undermined by
the errors detailed above.
74
(85 of 97)
Finally, what is most telling about the governments assertion that there is
nothing novel about the application of 1503 to the facts of this case that would
support a fair notice claim is the governments failure to cite a single case
remotely similar to this one. There are none. Defendants included deputy rank
officers without any decision-making authority who were following facially lawful
orders. Moreover, those orders were issued in response to a discovery that
federal agents had introduced a cell phone, and according to the FBIs own
informant, narcotics, into the MCJ. While prosecution of the Sheriff for issuing
those orders with a corrupt purpose would not be surprising, to instead prosecute
those far below him who were not in a position to second guess the facially lawful
orders is unprecedented.
VII. The Convictions Rest On a Legally Mistaken Definition of Corruptly.
Defendants acknowledge that only an en banc court can overrule this
Courts current definition of corruptly, and raised the claim to preserve it for
further review. GAB 100, JOB 152.
Contrary to the governments contention (GAB 99), Defendants challenge
to the definition of corruptly was adequately preserved by Leavins request that
corruptly be defined as an act done with the intent to secure an unlawful
75
(86 of 97)
benefit either for oneself or for another (ER 1A: 28), which closely resembles the
definition proposed by Judge Fletcher, by bribery. JOB 150.
VIII. The Case Should Be Reassigned to a Different Judge on Remand.
The district judge amply demonstrated fixed opinions on critical issues.
JOB 156-57; ER 1A: 112-14, 186, 220; ER 1B: 422, 526-28; ER 3: 922, 1080-81,
1108-10, 1377; ER 6: 1730. Reassignment on remand is an appropriate exercise
of this Courts discretion.
CONCLUSION
For the foregoing reasons, the convictions should be reversed because the
Defendants did not have fair notice that their conduct could subject them to
criminal liability. If this Court does not reverse outright, the matter must be
reversed and remanded for a new trial given the multiple and egregious errors in
the jury instructions, exclusion of evidence and dismissal of a juror, all of which
deprived the Defendants of their right to a fair trial.
76
(87 of 97)
Addendum
Government Statement of Facts
The Record
No deputy had ever been criminally

charged [with assaulting an inmate or
smuggling contraband for bribes].
GAB 9, citing GER 689, 1569, 1943;
TT 689, 1569, 1943; ER 652; GER
255, 331.
The record citation is to testimony by

cooperating witness and former
deputy Gilbert Michel who answered
No to the following question:
During the time you worked at
Mens Central Jail, were you aware
that anyone was charged criminally
for force or brutality? GER 255, RT
1569.
On August 8, 2011, LASD personnel

found the cell phone during a routine
search of Browns bunk. (GER 1447,
1791.) TT 1791; ER 1043.)
GAB 12 (emphasis added).
The phone was not found during a

routine search, and the record
citations do not support that
statement. The phone was found in
Browns property as he was being
transported to a nearby hospital. ER
7: 1890; JOB 10. This raised special
concerns, as Browns frequent trips to
the hospital provided an escape
opportunity and anything could be
orchestrated with a cell phone ER 4:
1303.
Eight days later [after the phone was

discovered] Brown expressed an
interest in speaking with deputies; as a
result, Bayes and two deputies
interviewed Brown on August 16,
2011. (TT 564 (ER 640).) GAB 13
(emphasis added).
Immediately upon returning to MCJ

from the hospital, which was 4 days
after the phone had been discovered,
Brown told deputies that he wanted to
obtain benefits in exchange for
information he claimed to have about
smuggling of cell phones and
narcotics by staff nurses and was
interviewed that same day. ER 7:
1896, 1903. Brown later changed his
story and implicated deputies in the
smuggling. ER 7: 1900.
77
(88 of 97)
The Record
On August 18, 2011, defendants

specifically Thompson, Smith and
Manzo linked Browns phone to the
FBI. Following that discovery, the
criminal conspiracy began. GAB 14.
The connection between the cell

phone and the FBI was discovered by
Deputy Kirk, not Thompson, Smith
or Manzo. ER 7: 1924. Kirk called an
FBI analyst on August 18 to have her
run the number Brown had called
from the jail when he spoke to the
unidentified female who told Brown
he would his phone soon and
referenced him getting his shit
before he left. ER 7: 1919, 1921;
JOB 12. There was no evidence
anyone knew or believed at that time
that the FBI had authorized the
introduction of the contraband.
Between Thompsons first and

second emails [on August 18],
Thompson, Smith and Manzo linked
Browns phone to the FBI.
Specifically, Smith confirmed by
investigating a number Brown had
called on the inmate telephone system
that Brown had been talking to an
FBI Civil Rights Investigator.
Exhibit 4 (ER 1924).) GAB 15
(emphasis added).
Smith did not confirm Brown had

been speaking to an FBI Civil Rights
Investigator; neither Smith nor
anyone else had any idea Brown had
been speaking to the FBI until Kirk
was told that on August 18. In fact,
the day before, August 17, after Smith
had Kirk listen to Browns
conversation with the female, Kirk
said to Smith that he suspected she
was a corrupt [LASD] employee. ER
5: 1406-09; JOB 12.
What had been treated as a mundane

misdemeanor suddenly became
urgent [after discovering the link to
the FBI on August 18]. GAB 15.
The Investigation became urgent on

August 15, immediately after Brown
first reported a deputy had smuggled
in the phone and drugs; multiple
investigative tasks were undertaken
after the 15th and before the 18th. ER
2: 644; ER 7: 1902, 1904, 1909-12,
1917-18.
78
(89 of 97)

Also that night [August 18], the FBI
Assistant Director in Charge, Steve
Martinez, e-mailed Sheriff LeRoy
Baca, indicating he had a sensitive
matter to discuss.[fn.3] (Exhibit 3
(GER 1012).) GAB 16.
Footnote 3 This email followed
Special Agent Marxs discovery that
the phone had been found, and her
reporting of that fact to her chain of
command. (TT 1914 (GER 323).)
The Record
Marx learned the phone had been
discovered by the LASD the same day
it happened, August 8, ER 3: 1043; it
is unclear when ADIC Martinez was
informed, but Martinez did not notify
Baca until 10 days after the phone was
discovered, and did so only after the
FBI learned the LASD had traced
Browns calls to the FBI. The FBI
made a deliberate decision not to
notify the LASD when the phone was
discovered because [a]t that time we
had no reason to believe that the
Sheriffs Department knew the phone
was linked to the FBI. RT 1643.
Brown insisted that he wanted to talk Brown said Im only talking to him
only to Bayes. (Id.). Smith and Manzo [Bayes], but when Smith asked
pushed forward. GAB 17.
Brown So youre not gonna talk to
me about anything? Is that basically
what youre telling me? Brown began
talking without any encouragement
from Smith or Manzo. ER 7: 1925.
Smith and Manzo did not ask him
about that deputy; Smith was
dismissive, telling Brown, I dont
investigate cops. (ER 1927-29; see TT
1618-19 (ER 956-57) GAB 17.
During the course of the interview,

Manzo said lets concentrate on the
deputy for now . . . ER 7: 1935.
Smith made the statement I dont
investigate cops in response to a
question by Brown as to whether
Smith was going to go out and arrest
the deputy who smuggled in the
contraband, telling Smith it would be
stupid to do that. ER 7: 1942. Smith
assured him he was not going to do
that. There (continued on next page)
79
(90 of 97)
The Record
is nothing in the record that states or
indicates this was said in a
dismissive manner or tone.
Throughout the remainder of the

interview, Smith and Manzo pushed
Brown to disclose the details of the
federal investigation and his
relationship to the FBI. They made
plain that the FBIs activities not
any corrupt deputy, not any cell
phone were their focus . . . GAB 18.
As noted above, during the course of

the interview, Manzo said lets
concentrate on the deputy for now . .
. ER 7: 1935.
The interview with Brown on August
19 lasted over an hour, and the
government introduced only selected
excerpts. RT 674-682.
Brown told Smith and Manzo that in
addition to cell phones, he was
bringing in meth, cocaine and
marijuana. ER 3: 1070. Smith and
Manzo were trying to gather
information about the different stories
Brown had told. ER 7: 1925-27.
Brown hesitatinglyafter being

promised a cheeseburger, cigarettes,
and other accommodationsbegan to
talk. GAB 19.
In response to Browns request,

Manzo told Brown they could get him
a cheeseburger, and added as to the
other items Brown requested, it would
require approval from somebody way
above us. ER 7: 1935.
80
(91 of 97)
The Record
Smith said they knew the FBI had

been in the jails at least a month. (ER
1939-40 [footnote 6]. GAB 20
Brown asked Smith why he thought it

was a month, and Smith explained it
was because Brown had made the
phone calls to the FBI number a
month earlier. ER 7: 1939.
Footnote 6: Indeed, about a month

before the interview, subpoenas
relating to a use of force incident at
Twin Towers were served on LASD.
(TT 716 (GER 65)). GAB 20
(emphasis added).
The subpoena referenced by the

government was dated June 24, 2011,
two months before the interview, and
was served on the LASD legal
department in Monterey Park. GER
1049.
Two days later [on August 21],

Brown was interviewed again. This
time, Smith and Manzo were joined
by an ICIB lieutenant, Leavins.
(Exhibit 9R, 10 (ER 1951); see TT
717-21 (GER 66-70). GAB 21
(emphasis added).
After the meeting at Sheriffs

headquarters on August 20, ICIB
investigators were responsible for
interviewing Brown. JOB 14.
Smith and Manzo were present at
many of the subsequent ICIB
interviews of Brown because they
escorted Brown to the interviews. ER
2: 767A-767B; RT 936-37.
They were unaware of Browns

interviews by LASD, of defendants
focus on the federal investigation, and
of Thompsons embargo on visits
from outside [law enforcement]. (TT
722, 1642-43, 1792 (ER 968,
1044; GER 71, 301); Exhibit 2 (ER
1923).) GAB 22.
Thompson did not embargo visits

from outside law enforcement.
Thompson had instructed that Brown
was to have no phones, no visits,
especially from outside LE [law
enforcement] without my approval.
(RT 575 (GER 24), Exhibit 2 (ER 7:
1923).)
81
(92 of 97)
The Record
About an hour and a half after the

FBI was kicked out of Mens
Central Jail (TT 726 (GER 72)),
Smith, Manzo and Leavins, now
joined by Carey, interviewed Brown
once again. (Exhibits 16R, 17 (ER
1978- 94); TT 726-28 (GER 72-74).)
The agents were asked to remain at

the jail until Captain Carey arrived
because he wanted to speak with
them, and instead the agents left of
their own accord. JOB 15.
Abruptly, Leavins raised the topic of

moving Brown out of Mens Central
Jail. (ER 1981.) Interrupting Brown,
Leavins suddenly suggested Brown
was unsafe . . . (Id.) GAB 25
(emphasis added).
Brown raised concerns about his

safety when he first implicated
deputies in smuggling on August 15,
and continued to do so in subsequent
interviews. ER 7: 1900-01, 1927; ER 2:
765. FBI ADIC Martinez expressed
concern about Browns safety in his
conversation with Baca on August 18.
JOB 13, n.3; ER 4: 1234-35.
First, as Leavins announced during

Browns interview, Brown suddenly
had to be moved. This was unusual.
High security inmates including an
inmate who murdered a jail deputy
were housed at the jail, listed under
their real names and with their real
housing location. (TT 1344-45 (ER
862-63); accord TT 577 (GER 26).)
GAB 28.
The record citations do not contain

any testimony or other evidence that
this was unusual.
Det. Lillenfeld, a 30 year LASD
veteran and homicide investigator,
who was qualified as an expert,
testified it was not uncommon for a
cooperating witness to be moved and
held under an alias, and shown as
having been released. RT 2817-22.
At 10:23 that night [August 23]

after an afternoon and evening spent
in a frenzy of calls between
Thompson, Carey, Smith, Leavins
and others Carey called LASDs
station in San Dimas. (Exhibit 67
(GER 1364).) GAB 29.
There is only one call between Smith

and any of these individuals on
August 23, and it was made by
Leavins at 6:42 p.m. to Smiths
personal cell phone and did not last
more than a minute. GER 1364.
82
(93 of 97)
The Record
News of the writ for Brown led to a

panic. GAB 35
Defendants superiors made plans

about what to do if a writ for Brown
was received, which was to contact
legal counsel. JOB 20; ER 7: 2038.
There was no evidence there was a
panic.
As a resultas Special Agent Marx

discovered when she looked for him
on August 26, 2011Brown
disappeared from LASDs online
inmate-location database, showing he
had been released. (Exhibit 47 (ER
2013).) GAB 37.
The public online data base showed

Brown had been released to OTHR,
and that it was a CUSTODY
RELEASE, meaning Brown was still
in custody. ER 7: 2013; TT 2817-18;
JOB 16.
The original jacket, which should

have contained a copy of the federal
writ, was never found by LASD
employees in charge of responding to
federal subpoenas. (TT 1103-05, 113738 (GER 149-51, 153-54).) GAB 38
This assumes the writ was received.

But no LASD employee testified to
having received a writ for Brown.
Academia testified he examined
Browns record jacket on the same
day the writ was reportedly
transmitted and there was no federal
writ in the jacket. RT 1216.
In those cases, the original and the

Browns booking number was
alias file jacket would be merge[d]
included in the alias booking jacket.
with notations on the jacket indicating RT 1132-34; Exhibit 45; Exhibit 46.
all actions that had been taken. (TT
1153 GER 165).) No such thing was
done here. (TT 1154-55, 1181 (GER
166-67, 178).) GAB 38.
83
(94 of 97)
The Record
Meanwhile, Thompson made sure no

writ would be honored if it was served
in person. GAB 40. . . . Asked what
attorney (would) [sic] be used to
review possible Court Order from
FBI, Thompson responded: Probably
the one who was on vacation for a
month. GAB 40-41 (Exh. 60, ER
2035)
In the event a writ was received,

arrangements were made to refer it to
county counsel so that Brown was not
be released without approval, and not
so it would not be honored. ER 7:
2038, 2035, Exhibit 60. Thompson
was known for his sarcasm. ER 4:
1172.
Meanwhile, Brown moved to San

Dimas despite the medical issues
that had previously made the move
inappropriate. (TT 1288 (ER 823).)
GAB 42.
Brown was moved to San Dimas after

he was approved for self-meds. RT
1302; Exhibit 47.
On September 2, 2011, Brownstill

booked as Chris Johnson was
moved back to Mens Central Jail for
medical reasons . . . GAB 44.
Brown was moved back to MCJ from

San Dimas because he had a temper
tantrum and threw his food all over
his cell in response to not getting takeout food from In-N-Out Burger. ER 5:
1413-17, TT 2865-69; JOB 21.
Leavins was the lead lieutenant on

the task force; Craig and Long were
lead investigators; Smith and Manzo,
although members of OSJ, also
joined. (TT 936 (ER 767A).) GAB 55
(emphasis added).
Smith and Manzo were assigned to

the task force, as were other OSJ
deputies, and their role was to assist
investigators with inmate workups
and access to the jail. ER 2: 767-A767B; TT 936-37 (emphasis added).
84
(95 of 97)

Thereafter, once again, there was a
flurry of phone calls between Craig,
Leavins, Carey, Smith and Tanaka.
(Exhibit 68 (GER 1369.) GAB 57.
The Record
The phone logs on the day in question
show there were no calls between
Smith and Leavins or Carey or
Tanaka at any time that day.
There was only one call between
Smith and anyone else listed, which
was a call Smith made from his
personal cell phone at 3:50 p.m. to
Craig, lasting not more than one
minute. There were no calls among
any of the people listed for two hours
before that call, and 50 minutes after.
GER 1369.
Immediately after hanging up, Long

burst out exuberantly, mocking
Narros tone: Theyre scared! Theyre
like, Do you know when is the
warrant --- (Exhibit 112R; ER 2108.)
The room broke into laughter before
Craig interrupted, reminding Long,
Youre still rolling. (Id.) GAB 63
(emphasis added).
The transcript shows that laughter did

not break out before Craig
interrupted, but after Craig told her
she was still being taped.
There is no evidence how many
people were in the room; the
transcript says multiple people
laugh.
The FBI learned, from deputies

Only a single deputy testified to such
themselves, about the unwritten
a rule.
rules within the jail among them,
that if you [an inmate] fight with a
deputy . . . you go to the hospital. (TT
1578 (ER 399).) GAB 67 (emphasis
added).
85
(96 of 97)
The Record
Deputies admitted to witnessing and

participating in egregious use-of-force
incidents: provoking fights with
inmates (TT 1422-23, 1688 (ER 38485; GER 306)) and beating inmates
(TT 1333, 1412, 1421-22 (ER 374,
383-84; GER 195)). GAB 67-68.
Only one deputy admitted to this, and

it was cooperating witness Michel.
Smith specifically said he was aware

that the FBI had been in the jails at
least a month corresponding to the
date the first grand jury subpoenas
[sic] served on LASD. (TT 716 (GER
65); ER 1939-40.) GAB 68-69.
Smith told Brown he knew it had been

a month because Brown had made his
three phone calls a month earlier. ER
7: 1939.This did not correspond to the
first grand jury subpoena which, as
noted above, was dated June 24, 2011,
and served on the LASD legal
department in Monterey Park. GER
1049.
Smiths and Manzos counsel, going

further, argued that their clients had
no knowledge of the grand jury
investigation at all. (Manzo: TT 3781,
3785, 3788, 3804 (GER 846, 850, 853,
869); Smith: TT 3846 (GER 909).)
GAB 73-74.
Neither Smith nor Manzo made such

an argument.
The Manzo citation is to his counsels
summation where he argued there was
no evidence as of August 19, when
Smith and Manzo interviewed Brown,
that he knew of a grand jury
investigation.
The Smith citation is to his counsels
summation rebutting the
governments contention that Smith
knew of the June 2011 subpoena at
the time of the August 19 interview of
Brown. GER 909, RT 3846.
86
(97 of 97)
Certificate of Compliance
I certify that (1) this brief is accompanied by a motion for leave to file an
oversized brief pursuant to Circuit Rule 32-2 and is 20,206 words long, excluding
the portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and (2) this brief
complies with the typeface requirements of Fed. R. App. 32(a)(5) and Circuit
Rule 32-1, because it has been prepared in a proportionally spaced typeface of 14
points or more using Microsoft Word 2010.
Dated: May 20, 2016
/s/ William J. Genego
Certificate of Service
I hereby certify that on May 20, 2016, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the Ninth
Circuit by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
/s/ William J. Genego
Dated: May 20, 2016
87

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

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Selected docket entries for case 1450440

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,

Joint Reply Brief of Defendants-Appellants

Attorneys for Maricela Long

KEVIN BARRY MCDERMOTT

Counsel for Gregory Thompson

Attorney for Scott Craig

Attorneys for Stephen Leavins

The Jury Instructions Allowed Conviction on an Invalid Legal Theory ...18

The Court Erred In Excluding the Testimony of Paul Yoshinaga, a Key

The District Courts Many Erroneous Evidentiary Rulings, Alone and

The Courts Dismissal of Juror Five Violated Defendants Sixth

VII. The Convictions Rest On a Legally Mistaken Definition of Corruptly.. 75

Armstrong v. Exceptional Child Ctr., Inc.,

Bisno v. United States,

299 F.2d 711 (9th Cir. 1962)...........................................................................................41

386 U.S. 18 (1967) ..............................................................................................................64

Comm. of Kentucky v. Long,

135 U.S. 1 (1890) ................................................................................................................15

New York v. Tanella,

374 F.3d 141 (2d Cir. 2004) ............................................................................................15

North Carolina v. Cisneros,

United States ex rel. Drury v. Lewis,

200 U.S. 1 (1906) ................................................................................................................15

United States v. Aguilar,

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

United States v. Barker,

United States v. Beard,

United States v. Boulware,

384 F.3d 794 (9th Cir. 2004)...........................................................................................64

United States v. Brown,

562 F.2d 1144 (9th Cir. 1977) .................................................................................11, 20

United States v. Bryant,

United States v. Bush,

United States v. Cannon,

United States v. Christensen,

801 F.3d 970 (9th Cir. 2015).............................................................................67, 69, 72

United States v. Custer Channel Wing Corp.,

376 F.2d 675 (4th Cir. 1967)....................................................................................41, 43

United States v. Doe,

710 F.3d 1134 (9th Cir. 2013)................................................................................. passim

United States v. Egan,

United States v. Fierros,

United States v. Fulbright,

105 F.3d 443 (9th Cir. 1997)....................................................................................23, 36

United States v. Hardy,

United States v. Hopper,

United States v. Keys,

United States v. LopezAlvarez,

970 F.2d 583 (9th Cir. 1992)...........................................................................................64

United States v. Mkhsian,

5 F.3d 1306 (9th Cir. 1993) .............................................................................................12