LASD Appeals Denied 8-4-16 - Published Opinion
LASD Appeals Denied 8-4-16 - Published Opinion
LASD Appeals Denied 8-4-16 - Published Opinion
FOR PUBLICATION
No. 14-50440
D.C. No.
2:13-cr-00819-PA-3
No. 14-50441
D.C. No.
2:13-cr-00819-PA-7
MARICELA LONG,
Defendant-Appellant.
No. 14-50442
D.C. No.
2:13-cr-00819-PA-1
No. 14-50446
D.C. No.
2:13-cr-00819-PA-4
No. 14-50449
D.C. No.
2:13-cr-00819-PA-6
No. 14-50455
D.C. No.
2:13-cr-00819-PA-2
No. 14-50583
v.
D.C. No.
2:13-cr-00819-PA-5
JAMES SEXTON,
Defendant-Appellant.
OPINION
Criminal Law
In an 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 Sheriffs
Department, were convicted for their roles in interfering with
a federal investigation into civil rights abuses at Los Angeles
County jails.
Rejecting 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.
The panel rejected arguments that a defendants 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 favor.
Rejecting the Joint Appellants challenge to the adequacy
of the district courts good faith instruction, the panel held
*
COUNSEL
William J. Genego (argued), Law Office of William Genego,
Santa Monica, California, for Defendant-Appellant Gerard
Smith.
Karen Lee Landau (argued), Law Offices of Karen L.
Landau, Oakland, California, for Defendant-Appellant Scott
Craig.
OPINION
FERNANDEZ, Circuit Judge:
Gerard 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
They have also raised several other challenges to their convictions and
sentences. We have addressed those in a memorandum disposition filed
on the same date as this opinion.
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In grand jury testimony that was admitted at his trial, Sexton said that
he learned from LASD personnel in the Warrants and Detainers section
that a writ for Brown had been received, and that he told Smith and
Manzo.
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There was testimony that around this time, LASD personnel were told
that, if a federal agent came to a facility to serve a writ for Brown, LASD
Undersheriff Paul Tanakas cell phone should be called and the writ not
honored. The message was disseminated in person so that there would be
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United States v. Purdy, 264 F.3d 809, 811 (9th Cir. 2001); United
States v. Larson, 495 F.3d 1094, 1101 (9th Cir. 2007) (en banc).
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See Henderson v. United States, __ U.S. __, 133 S. Ct. 1121, 1124,
112627, 113031, 185 L. Ed. 2d 85 (2013); see also United States v.
Houser, 130 F.3d 867, 872 (9th Cir. 1997) (review is for plain error when
no alternative instruction was proposed and no objection was made to the
failure of the district court to give an alternative instruction).
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United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981). The
Joint Appellants also challenge Rasheeds definition of corruptly as
overly broad, but we are bound by that precedent and apply it here. See
Miller v. Gammie, 335 F.3d 889, 899 (9th Cir. 2003) (en banc).
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do. The district court did not accept his position. Sexton
relied on Banks in support of his argument. However, what
Banks said was that in the gang or racketeering enterprise
area the purpose does not have to be the only purpose or the
main purpose. Id. at 969. But it does have to be a
substantial purpose. Id. Banks then went on to say that it
must be one of the defendants general purposes or dominant
purposes. Id. at 970.
Incidental itself can be commonly defined as
subordinate, nonessential, or attendant in position or
significance . . . . Websters Third New International
Dictionary 1142 (Philip Babcock Gove, 3d ed. 1986). Thus,
it would seem that, under the instruction given, the jury
would have understood that the purpose must be essential in
some sensethat is, substantial. Taken alone, dominant
has a meaning of commanding, controlling, or having
supremacy or ascendancy over all others. Id. at 671.
Plainly, however, we did not mean in Banks that the purpose
in question must be the dominant purpose, hence our use of
the phrase one of. As we made clear in Banks, in the gang
or racketeering area, when a person has two criminal
purposes neither has to dominate (be the main purpose), but
then neither can be merely incidental either. More simply
put, perhaps, both purposes must be substantial. In any event,
our effort in Banks does demonstrate the difficulty in
attempting to wrap words around the common sense idea that
in order to be liable for a crime premised on gang
involvement a persons criminal purpose must not only
include the commission of a substantive crime, but also must
include the additional criminal purpose of committing that
crime as a gang-oriented activity. See Banks, 514 F.3d at
969.
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United States v. Green, 745 F.2d 1205, 1209 (9th Cir. 1984); see also
United States v. Shipsey, 363 F.3d 962, 967 (9th Cir. 2004).
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We also reject the Joint Appellants claim that the prejudice they
suffered from this instruction was exacerbated by the district courts
finalizing the instruction after closing arguments. Indeed, they have not
demonstrated that their closing arguments were undermined by the
change. Moreover, they were given an opportunity to object both before
and after the court delivered the instructions but did not do so. Cf. United
States v. Liu, 731 F.3d 982, 98788 (9th Cir. 2013). Finally, they did not
express surprise or seek further argument time. Cf. United States v.
Hannah, 97 F.3d 1267, 1269 (9th Cir. 1996).
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Cir. 1994)); see also United States v. Jumah, 493 F.3d 868,
87375 (7th Cir. 2007). That is, they do not seek to rely upon
an excuse for the commission of a crime,22 rather they assert
that they committed no crime at all. It is notable, however,
that the Joint Appellants do not contend that they were
committing criminal acts under orders or otherwise. Their
contention is not that they were ordered to do anything that
would be criminal (for example, hiding a person for the
purpose of obstructing a grand jury investigation), but rather
that the acts were intrinsically innocent (for example, hiding
a person to shield him from danger). In any event, what their
proposed instruction amounted to was a claim that they acted
in good faith, and the good faith instruction that was given
did incorporate the superior-officer order concept already.23
The instructions adequately covered the Joint Appellants
claim that they did not have the requisite intent to obstruct.
See United States v. Sayakhom, 186 F.3d 928, 93940 (9th
Cir.), amended by 197 F.3d 959, 959 (9th Cir. 1999). The
district court did not abuse its discretion in refusing to give
the additional innocent intent instruction.
(5) California law
The Joint Appellants also argue that the district court
wrongly instructed the jury regarding the legality of the FBIs
actions under California law. The instruction told the jury
that certain sections of the California penal code require the
possession or introduction of contraband to be unauthorized
in order for crimes to occur, and that [i]f Anthony Brown
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See United States v. Doe, 705 F.3d 1134, 114546 (9th Cir. 2013);
Jumah, 493 F.3d at 87475.
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