and Submitted July 5, 2016 Pasadena, California
from the United States District Court for the Central
District of California Percy Anderson, District Judge,
Presiding D.C. Nos. 2:13-cr-00819-PA-3, 2:13-cr-00819-PA-7,
2:13-cr-00819-PA-1, 2:13-cr-00819-PA-4, 2:13-cr-00819-PA-6,
William J. Genego (argued), Law Office of William Genego,
Santa Monica, California, for Defendant-Appellant Gerard
Lee Landau (argued), Law Offices of Karen L. Landau, Oakland,
California, for Defendant-Appellant Scott Craig.
W. Burns (argued), Burns & Cohan, Attorneys at Law, San
Diego, California, for Defendant-Appellant Stephen Leavins.
P. O'Brien (argued), Paul Hastings LLP, Los Angeles,
California, for Defendant-Appellant James Sexton.
Hillary Potashner, Federal Public Defender; Gail Ivens and
Elizabeth Richardson-Royer, Deputy Federal Public Defenders;
Federal Public Defender's Office, Los Angeles,
California; for Defendant-Appellant Maricela Long.
McDermott, Law Offices of Kevin Barry McDermott, Irvine,
California, for Defendant-Appellant Gregory Thompson.
Matthew J. Lombard, Matthew J. Lombard Law Offices, Los
Angeles, California, for Defendant-Appellant Mickey Manzo.
Ashley Aull (argued), Assistant United States Attorney;
Lawrence S. Middleton, Chief, Criminal Division; Eileen M.
Decker, United States Attorney; Office of the United States
Attorney, Los Angeles, California; for Plaintiff-Appellee.
Before: Ferdinand F. Fernandez, Richard R. Clifton, and
Michelle T. Friedland, Circuit Judges.
opinion addressing challenges to jury instructions, the panel
affirmed the district court in a case in which seven
defendants, who were members of the Los Angeles Sheriff's
Department, were convicted for their roles in interfering
with a federal investigation into civil rights abuses at Los
Angeles County jails.
an argument by six of the defendants (the Joint Appellants)
that the instructions misstated the intent element of
obstruction of justice under 18 U.S.C. § 1503(a)), the
panel held that the instructions were correct and did not
permit the jury to convict the Joint Appellants for
obstructing an independent FBI investigation rather than for
obstructing the grand jury.
panel rejected arguments that a defendant's unlawful
purpose to obstruct justice must be sole or primary. The
panel wrote that use of "merely incidental" or
"dominant" should be eschewed, but on this record
found no reversible error in the instruction given. The panel
rejected a claim by James Sexton, who was tried separately,
that the degree of unlawful purpose required by § 1503
is so ambiguous that the statute must be construed in his
the Joint Appellants' challenge to the adequacy of the
district court's good faith instruction, the panel held
that the instruction properly conveyed that good faith as to
one purpose did not mean good faith as to all of them.
panel held that the district court did not abuse its
discretion in refusing to give an additional innocent intent
panel held that in light of a clear instruction regarding the
Joint Appellants' authority to investigate, any error in
an instruction regarding whether or not federal agents
violated California law was harmless.
Scott Craig and Maricela Long's challenge to instructions
regarding false statement counts, the panel wrote that
neither the dual-purposes instruction nor the good faith
instruction applied to the false statement counts, and that
the false-statement instructions in any event left no room
for the jury to convict Craig and Long if they acted entirely
in good faith.
panel addressed other challenges to the defendants'
convictions and sentences in a memorandum disposition.
FERNANDEZ, Circuit Judge
Smith, Maricela Long, Gregory Thompson, Mickey Manzo, Scott
Craig, Stephen Leavins (collectively, the "Joint
Appellants"), and James Sexton each appeal their
convictions for obstruction of justice and conspiracy to
obstruct justice. See 18 U.S.C. §§ 371,
1503(a). Long and Craig also appeal their convictions for
making false statements. See id. § 1001(a)(2).
Craig and Leavins also appeal their sentences. The Joint
Appellants and Sexton raise a number of challenges to the
jury instructions. We affirm.
Joint Appellants and Sexton were all members of the Los
Angeles Sheriff's Department (LASD), and were convicted
for their roles in interfering with a federal investigation
into civil rights abuses at Los Angeles County jails.
Leavins, Craig, and Long were members of the Internal
Criminal Investigations Bureau (ICIB), an LASD unit that
investigates criminal activity by LASD employees. Leavins was
a lieutenant, while Craig and Long were sergeants. Thompson
was a lieutenant who oversaw Operation Safe Jails (OSJ), an
LASD unit that investigates inmates. Smith, Manzo, and Sexton
were OSJ deputies.
federal grand jury began to investigate allegations of civil
rights violations in LASD jails in June 2011. The grand jury
issued subpoenas to LASD that month, seeking documents
regarding "use of force" incidents in jails. The
Federal Bureau of Investigation (FBI) assisted the grand jury
with its investigation. By late-August 2011, a number of
grand jury subpoenas had been served, and were circulated
among LASD personnel, including some of the Joint Appellants.
of the federal investigation, in July 2011, the FBI used an
undercover agent to bribe LASD Deputy Gilbert Michel to
smuggle a cell phone to Anthony Brown, a cooperating inmate
at LASD's Men's Central Jail (MCJ). The phone was
intended to allow Brown to communicate contemporaneously with
the FBI about claims of civil rights violations.
August 8, 2011, LASD personnel found and seized the cell
phone. Brown's possession of the cell phone was treated
much like similar conduct by other inmates, until August 18,
2011, when Smith, Manzo, and Thompson learned that Brown and
his cell phone were linked to an FBI civil rights
investigator. That prompted Thompson to impose stringent
restrictions on Brown, including "no phones, no visits,
especially from outside LE [law enforcement] without my
approval." It also prompted Smith and Manzo, later
joined by Leavins, to interview Brown regarding the cell
phone, civil rights violations, and the nature of Brown's
involvement with the FBI.
August 23, 2011, FBI Agents Leah Marx, Wayne Plympton, and
David Dahle went to MCJ to interview Brown and determine what
happened to the cell phone. About an hour after the interview
began, it was terminated by an LASD sergeant who entered the
room shouting that the FBI agents did not have permission to
interview Brown; Brown was taken away, and the FBI agents
left after telling Brown they would return for him. Shortly
thereafter, Smith, Manzo, Leavins, and LASD Captain William
Carey interviewed Brown about the details of his meeting with
the FBI, including whether Brown was going to testify.
Leavins told Brown that he would be transferred to another
jail for his safety, and promised Brown additional privileges
was moved to a medical ward in MCJ while they decided where
to transfer him, and by that night, he was under 24-hour
guard by OSJ deputies. The guards were told that no one,
including federal law enforcement, could visit or see Brown.
One guard testified that he knew that the FBI had given Brown
a phone in connection with the investigation of illegal use
of force in MCJ, and that the reason Brown had to be removed
from MCJ was because the FBI was going to come to get him.
August 24, 2011, Brown was interviewed again, this time by
Manzo, Smith, Leavins, Craig, and Long. The interview
immediately focused on the FBI, with Long asking Brown when
he first came in contact with the FBI, what they were
interested in, and who Brown's FBI contacts were. Brown
told them that the FBI was primarily focused on assaults in
believing that their investigation may have been compromised,
the FBI approached both Deputy Michel and his girlfriend,
Deputy Angela Caruso, on August 24, 2011. They served Deputy
Caruso with a grand jury subpoena.
August 25, 2011, the federal district court issued a writ for
Brown's testimony before the federal grand jury; the writ
required Brown's production on September 7, 2011. The
United States Marshals employee responsible for serving writs
followed her usual practice of calling LASD prior to service;
she was initially told that Brown could not be found, and
then that the person would have to speak to a supervisor. The
employee remembered faxing or emailing the writ to LASD
thereafter, and telephone records confirmed two different
faxes from the Marshals to LASD on the morning of August 25,
2011. LASD had no record of receiving the writ, but LASD
personnel did become aware of it.
that afternoon, OSJ deputies went to LASD's records
office and asked that Brown be the released from the computer
system. Although the clerks in the records office were
reluctant to do so without a court order, they ultimately
relented and "released" Brown. Sexton used his
knowledge of LASD's computer systems to assist in
rebooking Brown under an alias; Brown was thereafter released
and rebooked under a series of aliases, each time without
information linking the alias to his true identity. That made
it impossible for the FBI, the Marshals, and anyone in
LASD's Warrants and Detainers section to find Brown.
next day, August 26, 2011, Brown had been moved from MCJ to a
jail in San Dimas, California. He continued to be guarded
around the clock, and Deputy Sexton was one of those guards.
Smith told one of Brown's guards that the FBI should not
be allowed to speak to Brown, and that he needed to be hidden
from any federal agency. At 10:30 that night, Craig and Long
interviewed Brown again, mocking whether the FBI would return
for him and whether the FBI could "take the [LASD] house
down, " as they had promised to do, since "the
house [was] still there."
days later, on August 30, 2011, Leavins, Craig, and Long
interviewed Deputy Michel. Michel told them that the FBI had
questioned him about the use of excessive force in the jail,
subpoenaed his girlfriend (Deputy Caruso), and asked him to
cooperate with their investigation into misconduct. Leavins,
Craig, and Long sought to dissuade Michel from cooperating,
telling him that the FBI was manipulating him, lying to him,
threatening him, and blackmailing him. Craig ordered Michel
not to discuss these matters with anyone, including the FBI.
afternoon, Leavins, Craig, and Long interviewed Deputy
William Courson, who had alerted his supervisors that he had
contact with Agent Marx outside of work. Leavins, Craig, and
Long attempted to discourage Courson from cooperating with
the FBI by leading him to believe he "was played"
and "lied to" by Agent Marx. Craig and Leavins told
Courson not to talk to anyone about this, and Craig told him
that if he was threatened with a "Federal Grand Jury
Subpoena" or "[s]ome nonsense like that" he
should call Craig.
same day, LASD received three additional grand jury subpoenas
dated August 24, 2011, which included requests for records
regarding Brown and Deputies Michel and Caruso. On August 31,
2011, Manzo's investigation notebook memorialized a
meeting regarding "Fed. Grand Jury Inv. Subpoenas"
and listed categories of documents requested with dates
corresponding to the due dates of the August 24th subpoenas.
was returned to MCJ by September 2, 2011, where he was
interviewed briefly by Smith. Brown told Smith that he would
have "nothing to do with [the FBI] anymore." The
next day, Brown wrote a letter addressed to several LASD
personnel, including Long and Leavins, confirming that he
would not testify for the FBI, and that the evidence he had
given to them would therefore "mean nothing." On
September 12, 2011, Sexton re-booked Brown under his true
name, and Brown was transferred to state custody that night.
during September 2011, an ICIB task force was created to
investigate the use of force in jails and the cell phone
found in Brown's possession. Leavins was the lead
lieutenant, Craig and Long were lead investigators, and Smith
and Manzo were members. In that first week after the creation
of the task force, a shared drive ...