United States v. Gerard Smith , 831 F.3d 1207 ( 2016 )


Menu:
  •                FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,           No. 14-50440
    Plaintiff-Appellee,
    D.C. No.
    v.                  2:13-cr-00819-PA-3
    GERARD SMITH, AKA Gerard
    Robert Smith,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,           No. 14-50441
    Plaintiff-Appellee,
    D.C. No.
    v.                  2:13-cr-00819-PA-7
    MARICELA LONG,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,           No. 14-50442
    Plaintiff-Appellee,
    D.C. No.
    v.                  2:13-cr-00819-PA-1
    GREGORY THOMPSON,
    Defendant-Appellant.
    2             UNITED STATES V. SMITH
    UNITED STATES OF AMERICA,           No. 14-50446
    Plaintiff-Appellee,
    D.C. No.
    v.                  2:13-cr-00819-PA-4
    MICKEY MANZO, AKA Mickey
    Shane Manzo,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,           No. 14-50449
    Plaintiff-Appellee,
    D.C. No.
    v.                  2:13-cr-00819-PA-6
    SCOTT CRAIG, AKA Scott Alan
    Craig,
    Defendant-Appellant.
    UNITED STATES OF AMERICA,           No. 14-50455
    Plaintiff-Appellee,
    D.C. No.
    v.                  2:13-cr-00819-PA-2
    STEPHEN LEAVINS,
    Defendant-Appellant.
    UNITED STATES V. SMITH                    3
    UNITED STATES OF AMERICA,                 No. 14-50583
    Plaintiff-Appellee,
    D.C. No.
    v.                     2:13-cr-00819-PA-5
    JAMES SEXTON,
    Defendant-Appellant.             OPINION
    Appeal from the United States District Court
    for the Central District of California
    Percy Anderson, District Judge, Presiding
    Argued and Submitted July 5, 2016
    Pasadena, California
    Filed August 4, 2016
    Before: Ferdinand F. Fernandez, Richard R. Clifton,
    and Michelle T. Friedland, Circuit Judges.
    Opinion by Judge Fernandez
    4                   UNITED STATES V. SMITH
    SUMMARY*
    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 Sheriff’s
    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 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 favor.
    Rejecting the Joint Appellants’ challenge to the adequacy
    of the district court’s good faith instruction, the panel held
    *
    This summary constitutes no part of the opinion of the court. It has
    been prepared by court staff for the convenience of the reader.
    UNITED STATES V. SMITH                       5
    that the instruction properly conveyed that good faith as to
    one purpose did not mean good faith as to all of them.
    The panel held that the district court did not abuse its
    discretion in refusing to give an additional innocent intent
    instruction.
    The 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.
    Rejecting 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.
    The panel addressed other challenges to the defendants’
    convictions and sentences in a memorandum disposition.
    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.
    6               UNITED STATES V. SMITH
    Todd W. Burns (argued), Burns & Cohan, Attorneys at Law,
    San Diego, California, for Defendant-Appellant Stephen
    Leavins.
    Thomas 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.
    Kevin 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.
    L. 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.
    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
    UNITED STATES V. SMITH                             7
    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.1 We affirm.
    BACKGROUND2
    The 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.
    A 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
    1
    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.
    2
    In setting forth the background, we have “consider[ed] the evidence
    presented at trial in the light most favorable to the prosecution.” United
    States v. Nevils, 
    598 F.3d 1158
    , 1164 (9th Cir. 2010) (en banc).
    8                 UNITED STATES V. SMITH
    among LASD personnel, including some of the Joint
    Appellants.
    As part 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.
    On 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.
    On 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,
    UNITED STATES V. SMITH                     9
    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 there.
    Brown 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.
    On 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 the jail.
    Meanwhile, 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.
    On 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,
    10                   UNITED STATES V. SMITH
    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.3
    Later 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.
    By the 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.4 At
    3
    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.
    4
    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 Tanaka’s cell phone should be called and the writ not
    honored. The message was disseminated in person so that there would be
    UNITED STATES V. SMITH                           11
    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.”
    Several 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.
    That 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.
    That 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
    no written record of it and no chance for it to be captured on telephones
    that could be “bugged.”
    12                UNITED STATES V. SMITH
    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.
    Brown 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.
    Sometime 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 that included all the
    federal grand jury subpoenas was established for the task
    force members.
    On September 8, 2011, Craig applied for a state-court
    order requiring the FBI to produce materials regarding its
    investigation, but it was denied for lack of jurisdiction. The
    next day, Craig left a voicemail on a phone he believed to be
    Agent Marx’s, stating that he was working on a warrant for
    her arrest. On September 13, 2011, members of the LASD
    Special Operations Group began to surveil Agent Marx at
    Craig’s request. They tracked her to her apartment, identified
    her car, and followed her to work. Long and Craig then
    confronted Marx outside her apartment on September 26,
    UNITED STATES V. SMITH                      13
    2011. Craig asked Marx if she knew she was “a named
    suspect in a felony complaint,” and told her that he was “in
    the process of swearing out a declaration for an arrest warrant
    for you.”
    After this confrontation, Marx returned to the FBI office
    at the direction of her supervisor, Agent Narro. Narro called
    Craig and Long to ask them if there would be a warrant for
    Marx’s arrest, and Long told him “[t]here’s going to be,” and
    that it could be issued as soon as the next day. After the
    phone call, Long mocked Narro, saying “They’re scared!
    They’re like, do you know when[] is the warrant—” and the
    room broke into laughter before the recording ended. As a
    result of these threats to Marx, the FBI agents postponed
    going to the jail to interview inmates and gather information
    because they were concerned that Marx would be arrested.
    No one on the investigation team returned to the jail for three
    months.
    The Joint Appellants and Sexton were indicted for
    obstruction of justice and conspiracy to obstruct justice. In
    addition, Craig and Long were indicted for making false
    statements to the FBI. The Joint Appellants were tried, were
    convicted on all counts, and were sentenced to prison terms.
    Sexton was tried separately. His first trial ended in a mistrial,
    but his second trial resulted in his conviction on all counts.
    He was then sentenced to a prison term. These appeals
    followed.
    JURISDICTION AND STANDARDS OF REVIEW
    The district court had jurisdiction pursuant to 18 U.S.C.
    § 3231. We have jurisdiction pursuant to 18 U.S.C. § 3742(a)
    and 28 U.S.C. § 1291.
    14                    UNITED STATES V. SMITH
    We review the district court’s “precise formulation” of
    jury instructions for abuse of discretion. United States v.
    Lloyd, 
    807 F.3d 1128
    , 1165 (9th Cir. 2015) (quoting United
    States v. Dixon, 
    201 F.3d 1223
    , 1230 (9th Cir. 2000); see also
    United States v. Sarno, 
    73 F.3d 1470
    , 1485 (9th Cir. 1995).
    We review constitutional challenges,5 and whether the jury
    instructions misstated an element of the crime or adequately
    presented the defendant’s theory of his case,6 de novo.
    We review for plain error those claimed errors that were
    not brought to the attention of the district court. Fed. R.
    Crim. P. 52(b); see also United States v. Pelisamen, 
    641 F.3d 399
    , 404 (9th Cir. 2011); United States v. Gomez-Norena,
    
    908 F.2d 497
    , 500 (9th Cir. 1990).
    DISCUSSION
    There is little dispute about the conduct on which the
    Joint Appellants’ and Sexton’s indictments and convictions
    were predicated. Certain of them guarded Brown, transferred
    him to a new jail under various aliases, discouraged Brown
    and Deputies Michel and Courson from cooperating with the
    FBI, confronted FBI Agent Marx, and lied to her and her
    supervisor. Tape recordings, documents, and witness
    testimony (including from some of the appellants themselves)
    confirmed those activities. But whether the Joint Appellants
    and Sexton were guilty of the charged crimes crucially turned
    on the intent with which they acted. According to the
    Government, all acted with unlawful intent, and all were
    5
    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).
    6
    
    Lloyd, 807 F.3d at 1164
    –65; see also 
    Sarno, 73 F.3d at 1485
    .
    UNITED STATES V. SMITH                             15
    therefore guilty. According to the Joint Appellants and
    Sexton, all acted in good faith, motivated by an intent to
    follow orders, or to protect Brown from harm, or to
    investigate the FBI’s complicity in smuggling contraband, or
    to conduct their own investigation into civil rights abuses.
    The juries in each trial determined that the Government’s
    version was correct and convicted the Joint Appellants and
    Sexton.
    Appellants now claim that a number of instructional
    errors undermined the verdicts. The Joint Appellants and
    Sexton all challenge jury instructions from their respective
    trials. In reviewing those challenges we will keep in mind the
    admonition that an instruction “may not be judged in artificial
    isolation, but must be viewed in the context of the overall
    charge,” and “the relevant inquiry is whether the instructions
    as a whole are misleading or inadequate to guide the jury’s
    deliberation.” 
    Lloyd, 807 F.3d at 1164
    (quoting 
    Dixon, 201 F.3d at 1230
    ).
    (1) Intent required for obstruction of justice
    The Joint Appellants argue that the jury instructions
    misstated the intent that the Government had to prove for
    obstruction of justice,7 which, they assert, allowed the jury to
    7
    As relevant to this argument, the instructions given to the jury read as
    follows:
    In order for each defendant to be found guilty of
    [obstruction of justice], the Government must prove
    each of the following elements beyond a reasonable
    doubt.
    First, the defendant influenced obstructed or
    16                 UNITED STATES V. SMITH
    convict them merely for obstructing an FBI investigation,
    rather than for obstructing the grand jury. We do not agree.
    In order to violate 18 U.S.C. § 1503(a), a defendant must
    have acted “with an intent to influence . . . grand jury
    proceedings,” not to influence “an investigation independent
    of the . . . grand jury’s authority.” United States v. Aguilar,
    
    515 U.S. 593
    , 599, 
    115 S. Ct. 2357
    , 2362, 
    132 L. Ed. 2d 520
    (1995). This court has already held that “a grand jury
    investigation constitutes a judicial proceeding for purposes of
    § 1503.” United States v. Duran, 
    41 F.3d 540
    , 544 (9th Cir.
    1994); see also United States v. Macari, 
    453 F.3d 926
    , 936
    (7th Cir. 2006). Thus, the district court’s use of the phrase
    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.
    As used in Section 1503 “corruptly” means that the
    act must be done with the purpose of obstructing
    justice. The government does not need to prove that
    defendants’ conduct had the actual effect of obstruction.
    However, the Government must prove that the
    defendants’ actions would have had the natural and
    probable effect of interfering with the grand jury
    investigation.
    ....
    One element the Government must prove beyond
    a reasonable doubt with respect to the obstruction of
    justice charges is that the defendant had the unlawful
    intent to obstruct a grand jury investigation.
    UNITED STATES V. SMITH                     17
    “grand jury investigation,” rather than “grand jury
    proceeding,” was neither misleading nor an abuse of
    discretion in these circumstances.
    We also see no possibility that the jury understood “grand
    jury investigation” to refer to things the FBI may have done
    as part of an investigation independent of the grand jury’s
    authority. First, the jury instructions referred to a grand jury
    investigation, not an FBI investigation, and we presume that
    jurors follow their instructions. See United States v. Heredia,
    
    483 F.3d 913
    , 923 (9th Cir. 2007) (en banc). Second, the
    evidence showed that the investigation was a grand jury
    investigation into civil rights abuses at LASD jails, and there
    was no evidence that the FBI’s efforts during this period were
    undertaken independently of the grand jury. See United
    States v. Hopper, 
    177 F.3d 824
    , 830 (9th Cir. 1999); see also
    United States v. Triumph Capital Grp., Inc., 
    544 F.3d 149
    ,
    169 (2d Cir. 2008); cf. 
    Aguilar, 515 U.S. at 600
    –601, 115 S.
    Ct. at 2362–63.
    There was no need for the district court to give an
    additional instruction proposed by the Joint Appellants which
    stated that it was insufficient for the Government to show that
    they obstructed an FBI investigation, as opposed to a grand
    jury investigation. To the extent that the FBI was operating
    as an arm of the grand jury, the trial jury was entitled to
    consider the Joint Appellants’ obstructive acts as they related
    to the FBI. See 
    Macari, 453 F.3d at 936
    –38; see also
    Triumph 
    Capital, 544 F.3d at 169
    ; cf. 
    Aguilar, 515 U.S. at 600
    –601, 115 S. Ct. at 2362–63. It was not told to do
    otherwise. Although the Joint Appellants now claim that the
    district court should have given yet another instruction
    explaining what the Government must show to demonstrate
    that the FBI was acting as an arm of the grand jury, they
    18                  UNITED STATES V. SMITH
    never proposed one. Review is therefore for plain error,8 but
    the Joint Appellants have not cited to any case that requires
    an instruction on that point and have not demonstrated that
    one was needed here. In fact, the other instructions told the
    jury that the Joint Appellants had to act with an intent to
    obstruct the grand jury investigation itself. Even if the failure
    to give an arm of the grand jury instruction sua sponte might
    be plain error in some circumstances, it would undoubtedly
    be harmless on this record. See United States v. Cherer,
    
    513 F.3d 1150
    , 1155 (9th Cir. 2008). The evidence at trial
    pointed to the FBI’s acting for the grand jury, and the Joint
    Appellants do not identify any evidence on which the jury
    could rely to find that the FBI was acting “separate and apart”
    from the grand jury investigation. See 
    Macari, 453 F.3d at 936
    –38.
    There was also no plain error in the district court’s failure
    to give an instruction sua sponte that the Joint Appellants had
    to know that their conduct would have the “natural and
    probable effect” of influencing a grand jury investigation.
    See 
    Aguilar, 515 U.S. at 599
    , 115 S. Ct. at 2362 (quoting
    United States v. Wood, 
    6 F.3d 692
    , 695 (10th Cir. 1993); see
    also 
    Duran, 41 F.3d at 544
    . They claim that is required by
    Aguilar, but we have previously described that decision as
    requiring that there be a nexus between the agency (here the
    FBI) activity and the judicial proceeding, and that the jury
    can infer that nexus “if the ‘natural and probable effect’ of the
    defendant’s conduct vis à vis the [FBI] proceeding would
    8
    See Henderson v. United States, __ U.S. __, 
    133 S. Ct. 1121
    , 1124,
    1126–27, 1130–31, 
    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).
    UNITED STATES V. SMITH                           19
    obstruct justice.” United States v. Bhagat, 
    436 F.3d 1140
    ,
    1147 (9th Cir. 2006) (quoting 
    Aguilar, 515 U.S. at 599
    ,
    115 S. Ct. at 2362). The district court here gave a nexus
    instruction that was substantively identical to the one that was
    jointly proposed by the Joint Appellants and the
    Government,9 and that accurately reflected the law. See
    United States v. Fleming, 
    215 F.3d 930
    , 938 (9th Cir. 2000);
    see also United States v. Bonds, 
    784 F.3d 582
    , 587–88 (9th
    Cir. 2015) (en banc) (N.R. Smith, J., concurring).10 To the
    extent that Triumph Capital states that an additional
    instruction is required,11 we disagree. Aguilar12 does not
    require that essentially redundant instruction. Moreover, the
    instructions did require that the Government prove not only
    that the Joint Appellants’ actions would have had the natural
    and probable effect of interfering with the grand jury
    investigation,13 but also that the Joint Appellants did those
    9
    See supra note 7 (fourth paragraph of quoted material).
    10
    In Bonds, the “natural and probable effect” element of § 1503 was
    characterized as a “materiality requirement.” Framed either as a nexus
    element or a materiality element, there is no requirement that the
    defendant, in addition to the specific intent to obstruct justice, also have
    knowledge that his acts may have the “natural and probable effect” of
    interfering with justice.
    11
    Triumph 
    Capital, 544 F.3d at 166
    –67 & n.16.
    12
    
    Aguilar, 515 U.S. at 599
    , 115 S. Ct. at 2362.
    13
    
    Id. at 601,
    115 S. Ct. at 2363.
    20                  UNITED STATES V. SMITH
    acts “corruptly,” that is, with the purpose of obstructing
    justice.14
    The district court’s instructions regarding the intent
    required for obstruction of justice were correct and did not
    permit the jury to convict the Joint Appellants on the invalid
    theory that they obstructed an independent FBI
    investigation.15 We see no reason to believe that the jury’s
    general verdict was based on a failure to follow the specific
    instructions regarding grand jury investigations while
    concomitantly seizing upon and crediting the factually-
    unsupported theory that the Joint Appellants obstructed an
    independent FBI investigation. See Griffin v. United States,
    
    502 U.S. 46
    , 59–60, 
    112 S. Ct. 466
    , 474, 
    116 L. Ed. 2d 371
    (1991) (refusing to negate a verdict on the chance “that the
    jury convicted on a ground that was not supported by
    adequate evidence when there existed alternative grounds for
    which the evidence was sufficient” (quoting United States v.
    Townsend, 
    924 F.2d 1385
    , 1414 (7th Cir. 1991))); see also
    United States v. Fulbright, 
    105 F.3d 443
    , 451 n.5 (9th Cir.
    1997), overruled on other grounds by 
    Heredia, 483 F.3d at 921
    –22; cf. McDonnell v. United States, 579 U.S. __, __,
    
    136 S. Ct. 2355
    , 2374–75, __ L. Ed. 2d __ (2016).
    14
    United States v. Rasheed, 
    663 F.2d 843
    , 852 (9th Cir. 1981). The
    Joint Appellants also challenge Rasheed’s 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).
    15
    We also reject the Joint Appellants’ argument that tampering with
    grand jury witnesses is not a legally permissible theory under 18 U.S.C.
    § 1503. See United States v. Hernandez, 
    730 F.2d 895
    , 898 (2d Cir.
    1984). This court has already held to the contrary. See United States v.
    Ladum, 
    141 F.3d 1328
    , 1337–38 (9th Cir. 1998). We are bound by that
    precedent. See 
    Miller, 335 F.3d at 899
    .
    UNITED STATES V. SMITH                        21
    (2) Dual purposes
    The Joint Appellants and Sexton challenge an instruction,
    given by the district court in each trial, which told the jury
    that the Government did not need to prove that the
    defendants’ sole or primary purpose was to obstruct justice.16
    They all argue that the instruction should have required the
    Government to prove that their unlawful purpose was the sole
    or primary purpose. Sexton further explicates that position by
    arguing that the district court should have instructed the jury
    that the unlawful purpose had to be dominant.
    We reject the claim that a defendant’s unlawful purpose
    to obstruct justice must be sole or primary. A defendant’s
    unlawful purpose to obstruct justice is not negated by the
    simultaneous presence of another motive for his overall
    conduct. We noted that over two decades ago. See United
    States v. Laurins, 
    857 F.2d 529
    , 537 (9th Cir. 1988). In that
    case, the Internal Revenue Service sent a summons to a
    company of which Laurins was a director. It sought
    production of books and records, but Laurins concealed them
    instead. 
    Id. at 533–34.
    He was prosecuted for obstruction,
    and we held that the concealment fell within the definition of
    corruptly obstructing justice. 
    Id. at 536–37.
    He claimed that
    16
    In the Joint Appellants’ trial, the instruction said:
    The Government need not prove that the defendants’
    sole or even primary purpose was to obstruct justice so
    long as the Government proves beyond a reasonable
    doubt that one of the defendants’ purposes was to
    obstruct justice.     The defendants’ purpose of
    obstructing justice must be more than merely incidental.
    The instruction was the same in Sexton’s trial, mutatis mutandis.
    22                UNITED STATES V. SMITH
    his intent was to wait until he was personally summoned so
    that he could “assert his fifth amendment privilege.” 
    Id. at 537.
    While that was a benign motive, we declared that it did
    not suffice to overcome the evidence of his corrupt motive to
    frustrate enforcement of the original summons. 
    Id. at 537;
    see also United States v. Thomas, 
    916 F.2d 647
    , 651 (11th
    Cir. 1990) (“conduct [must be] prompted, at least in part, by
    a ‘corrupt motive’” (quoting United States v. Brand, 
    775 F.2d 1460
    , 1465 (11th Cir. 1985))); United States v. Howard,
    
    569 F.2d 1331
    , 1336 n.9 (5th Cir. 1978) (same); United States
    v. Fayer, 
    523 F.2d 661
    , 663 (2d Cir. 1975) (the good motive
    was “outweighed” by the bad motive). And in a different
    context, we have recognized that where the purpose of an act
    was necessary to a conviction, it was not required to be the
    “primary or sole purpose” of that act. United States v. Banks,
    
    514 F.3d 959
    , 969 (9th Cir. 2008).
    The evidence was sufficient to suggest various motives
    for the Joint Appellants’ and Sexton’s conduct, so it was
    appropriate for the court to give an instruction regarding dual
    purposes. See 
    Heredia, 483 F.3d at 923
    –24. Alternatively,
    the jury could have found that the Joint Appellants and
    Sexton undertook certain actions without a purpose to
    obstruct, but had that obstructive purpose with respect to
    other actions. See 
    id. The instruction
    properly conveyed that
    concept. See 
    Banks, 514 F.3d at 964
    –65, 969–70.
    Sexton, however, adds that the district court’s
    clarification that “the purpose must be more than merely
    incidental” was not specific enough about where the strength
    of the purpose must fall on a continuum between “merely
    incidental” and sole or primary. At the district court he
    indicated that the jury should be told that the obstruction
    motive must be dominant and nothing less than that would
    UNITED STATES V. SMITH                    23
    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 defendant’s general purposes or dominant
    purposes.” 
    Id. at 970.
    “Incidental” itself can be commonly defined as
    “subordinate, nonessential, or attendant in position or
    significance . . . .” Webster’s 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 sense—that 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 person’s 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
    .
    24                UNITED STATES V. SMITH
    Nonetheless, we see the use of the phrase “merely
    incidental” in instructions as infelicitous. So, too, is use of
    the word “dominant.”           Both should be eschewed.
    “Incidental” has a flavor that suggests that the standard is
    very low, even if that is not true as a definitional matter.
    “Dominant” has a flavor that suggests that the standard is
    very high. “Substantial” would convey the idea with more
    precision, but we decline to engage in the fascinating pursuit
    of choosing the exact word at this time—should it be
    “substantial” or “considerable” or “essential” or “significant”
    or “important” or “integral” or “strong,” etc.? We decline
    because, regardless of the exact word used, on this record the
    jury would not have been misled by the instruction that was
    given. The jury was not asked to decide an issue where one
    alleged purpose was very strong and the other very weak. It
    had to choose between two starkly different stories and
    readings of the evidence, but none of the argued purposes
    appeared to be asthenic in nature. In another case, the “more
    than merely incidental” formulation may well lead to error,
    and that makes its use rather dangerous at best; thus, our
    admonition against using it. But on this record, we find no
    reversible error in the instruction given.
    We also reject Sexton’s claim that the degree of unlawful
    purpose required by 18 U.S.C. § 1503 is so ambiguous that
    the statute must be construed in his favor. He has identified
    no “grievous ambiguity” in the statute, and we see none. See
    
    Banks, 514 F.3d at 968
    . Moreover, we are confident that the
    mens rea required for a violation of the statute provides
    sufficient protection from conviction for law enforcement
    officers who are conducting lawful investigations without the
    requisite unlawful intent. See United States v. Lee, 
    183 F.3d 1029
    , 1032–33 (9th Cir. 1999).
    UNITED STATES V. SMITH                          25
    (3) Good faith
    Although in general “[a] defendant is not entitled to a
    separate good faith instruction,”17 the district court gave one.
    The Joint Appellants challenge the instruction18 on the ground
    that it suggested that good faith was merely some evidence
    inconsistent with unlawful intent, not a complete defense to
    the charged crime. Of course, as described above, the
    evidence adduced at trial suggested that the Joint Appellants
    may have had a variety of motives for their conduct—some
    of which were consistent with good faith, and some of which
    were consistent with a purpose to obstruct justice. Good faith
    as to one purpose did not mean good faith as to all of them,
    and the good faith instruction properly conveyed that concept.
    Because the instruction was correct, it is immaterial that its
    17
    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).
    18
    The instruction provided:
    Evidence that a defendant relied in good faith on
    the orders the defendant received from the defendants’
    superior officers and that the defendant reasonably and
    objectively believed those orders to be lawful is
    inconsistent with an unlawful intent and is evidence
    you may consider in determining if the Government has
    proven beyond a reasonable doubt that a defendant had
    the required unlawful intent.
    If you find, however, that a defendant carried out
    those orders with an unlawful intent to obstruct a grand
    jury investigation or that a defendant did not reasonably
    and objectively believe the superiors’ orders to be
    lawful, the defendants’ conduct is not excused by a
    claim or evidence that the defendant might have been
    following orders of his or her superiors.
    26                    UNITED STATES V. SMITH
    precise wording differed from the one used in a different trial.
    See United States v. Kilbride, 
    584 F.3d 1240
    , 1249 n.5 (9th
    Cir. 2009).
    To the extent that the Joint Appellants claim that this
    instruction may have allowed the jury to convict them of
    obstruction even if it determined that they acted exclusively
    in good faith, we are not convinced. Read in the context of
    the other instructions,19 which specified that the Government
    had to show that the defendants “acted corruptly . . . with the
    intent to obstruct the federal grand jury investigation,” “with
    the purpose of obstructing justice,” and with “the unlawful
    intent to obstruct a grand jury investigation,” there is no real
    likelihood that the jury would have drawn that far-fetched
    inference. See 
    Thomas, 612 F.3d at 1122
    ; 
    Kilbride, 584 F.3d at 1249
    –50; see also Middleton v. McNeil, 
    541 U.S. 433
    , 438,
    
    124 S. Ct. 1830
    , 1833, 
    158 L. Ed. 2d 701
    (2004) (per curiam)
    (proposed “interpretation would require . . . a rare
    combination of extremely refined lawyerly parsing of an
    instruction, and extremely gullible acceptance of a result that
    makes no conceivable sense”).20
    19
    See 
    Lloyd, 807 F.3d at 1164
    .
    20
    We also reject the Joint Appellants’ claim that the prejudice they
    suffered from this instruction was exacerbated by the district court’s
    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
    , 987–88 (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).
    UNITED STATES V. SMITH                        27
    (4) Innocent Intent
    Joint Appellants also assert that the district court erred
    because it failed to give an instruction proposed by some of
    them which was intended to indicate that the Joint
    Appellants’ intent was innocent—not unlawful—because
    they relied on orders from superior officers whom they
    reasonably believed had authority to issue the orders.21
    Essentially, that is an innocent intent defense. As we said in
    United States v. Burrows, 
    36 F.3d 875
    (9th Cir. 1994):
    [T]he defendant may allege that he lacked
    criminal intent because he honestly believed
    he was performing the otherwise-criminal acts
    in cooperation with the government.
    “Innocent intent” is not a defense per se, but
    a defense strategy aimed at negating the mens
    rea for the crime, an essential element of the
    prosecution’s case . . . .
    
    Id. at 881
    (second alteration in original) (quoting United
    States v. Baptista-Rodriguez, 
    17 F.3d 1354
    , 1368 n.18 (11th
    21
    The proposed instruction read:
    The defendants contend that to the extent he
    committed the acts alleged to constitute the charged
    crimes, his acts were authorized by a law enforcement
    official who he reasonably believed had such authority.
    In order for the defendant to be guilty of the
    charged offenses, the government must prove beyond
    a reasonable doubt that the defendant’s acts were not
    authorized by a law enforcement officer or that it was
    not reasonable for the defendant to believe the law
    enforcement had such authority.
    28                     UNITED STATES V. SMITH
    Cir. 1994)); see also United States v. Jumah, 
    493 F.3d 868
    ,
    873–75 (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
    , 939–40 (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 FBI’s
    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
    22
    See United States v. Doe, 
    705 F.3d 1134
    , 1145–46 (9th Cir. 2013);
    
    Jumah, 493 F.3d at 874
    –75.
    23
    See supra note 18.
    UNITED STATES V. SMITH              29
    possessed any contraband including a cellular phone at the
    direction of the FBI, such possession or introduction of
    contraband would be authorized and no violation of these
    California Penal codes would have occurred.” See Cal. Penal
    Code §§ 4573(a), 4575(a).
    The Joint Appellants and the Government dispute whether
    that instruction was correct as a matter of California law, and
    what impact the Supremacy Clause24 has in these
    circumstances. But we need not parse those issues for
    purposes of this opinion because even if we assume, without
    deciding, that the instruction was incorrect, it is not a basis
    for overturning the verdicts.
    The Joint Appellants were not prejudiced by any error.
    See United States v. Frega, 
    179 F.3d 793
    , 806 n.16 (9th Cir.
    1999); see also 
    Cherer, 513 F.3d at 1155
    . They claim
    otherwise on the theory that if there was no crime, they could
    not investigate. However, that incorrect view was explicitly
    contradicted by the jury instructions. The jury was told that
    “[a] local officer has the authority to investigate potential
    violations of state law,” which “includes the authority to
    investigate potential violations of state law by federal
    agents.” The district court also told counsel that they could
    argue that the Joint Appellants had the right to conduct their
    investigation. In light of the clear instruction regarding the
    Joint Appellants’ authority to investigate, any error in the
    instruction regarding whether or not federal agents actually
    violated California law was undoubtedly harmless. See
    
    Cherer, 513 F.3d at 1155
    .
    24
    U.S. Const. art. VI, cl. 2.
    30                      UNITED STATES V. SMITH
    (6) Instructions regarding the false statement counts
    Craig and Long challenge the district court’s instructions
    regarding the false statement counts, primarily on the ground
    that the district court’s dual purposes instruction erroneously
    told the jury that it could convict them if they acted in good
    faith.25 But the dual purposes instruction did not apply to the
    false statement charges; it applied to the obstruction charges.
    It mentions obstruction of justice three times,26 and appears
    in a section of the instructions discussing obstruction of
    justice.
    Similarly, the good faith instruction did not apply to the
    false statement count, nor was the court asked to give one for
    that count. In any event, because the jury was properly
    instructed on the elements of the false statement offense,27 the
    25
    We do not consider Craig and Long’s claim that an innocent intent
    instruction should have been given with respect to the false statement
    counts because they did not propose one and raised the issue only in their
    reply brief. See United States v. Romm, 
    455 F.3d 990
    , 997 (9th Cir. 2006).
    26
    See supra note 16.
    27
    The district court instructed:
    [T]he Government must prove each of the following
    elements beyond a reasonable doubt:
    First the defendant made a false statement in a
    matter within the jurisdiction of the Federal Bureau of
    Investigation.
    Second, the defendant knew the statement was
    false.
    Third, the defendant acted willfully.
    UNITED STATES V. SMITH                             31
    district court was not required to instruct on good faith.28 In
    short, the false-statement instructions required the jury to find
    that Craig and Long acted willfully with a purpose to disobey
    the law. Those instructions left no room for the jury to
    convict Craig and Long if they acted entirely in good faith.
    See 
    Green, 745 F.2d at 1210
    .
    CONCLUSION
    There is little dispute about what Appellants did, but a
    good deal of conflict about why they did it—their intent, their
    motives, their purposes. They say that all was done for
    benign purposes but the Government says that what they did
    And fourth, the statement was material to the
    activities or decisions of the Federal Bureau of
    Investigation. That is, it had a natural tendency to
    influence or was capable of influencing the agency’s
    decisions or activities.
    ....
    The word “willfully” means that the defendant
    made the statement voluntarily and purposely and with
    knowledge that the defendants’ making of the statement
    was unlawful. That is, the defendant must have made
    the statement with a purpose to disobey or disregard the
    law.
    This is in accord with the statutory language of the offense. See
    18 U.S.C. § 1001; see also United States v. Camper, 
    384 F.3d 1073
    , 1075
    (9th Cir. 2004) (“The government must prove five elements to obtain a
    conviction for making a false statement under § 1001; (1) a statement,
    (2) falsity, (3) materiality, (4) specific intent, (5) agency jurisdiction.”).
    Craig and Long do not argue that the instruction was incorrect.
    28
    See 
    Shipsey, 363 F.3d at 967
    ; 
    Green, 945 F.2d at 1209
    .
    32               UNITED STATES V. SMITH
    was for criminal purposes. Ultimately, a properly instructed
    jury had to decide whose narrative it believed—the
    amaranthine essence of the jury function. These juries were
    properly instructed, and accepted the Government’s position.
    AFFIRMED.
    

Document Info

Docket Number: 14-50440, 14-50441, 14-50442, 14-50446, 14-50449, 14-50455, 14-50583

Citation Numbers: 831 F.3d 1207, 2016 WL 4137634

Judges: Fernandez, Clifton, Friedland

Filed Date: 8/4/2016

Precedential Status: Precedential

Modified Date: 11/5/2024

Authorities (40)

united-states-v-alice-hopper-united-states-of-america-v-terry-ingram , 177 F.3d 824 ( 1999 )

Middleton v. McNeil , 124 S. Ct. 1830 ( 2004 )

United States v. Aleksandrs v. Laurins , 857 F.2d 529 ( 1988 )

United States v. Juan Baptista-Rodriguez, Ramon Calvo, and ... , 17 F.3d 1354 ( 1994 )

United States v. Aguilar , 115 S. Ct. 2357 ( 1995 )

Henderson v. United States , 133 S. Ct. 1121 ( 2013 )

UNITED STATES of America, Plaintiff-Appellee, v. Ronald ... , 105 F.3d 443 ( 1997 )

United States v. George Michael Shipsey , 363 F.3d 962 ( 2004 )

United States v. Herbert A. Howard and Elmer Gary Ritter , 569 F.2d 1331 ( 1978 )

UNITED STATES of America, Plaintiff-Appellee, v. Gerald ... , 97 F.3d 1267 ( 1996 )

United States v. Nicholas Victor Fleming, Jr. , 215 F.3d 930 ( 2000 )

United States v. Maria C. Duran, United States of America v.... , 41 F.3d 540 ( 1994 )

United States v. Alfred Fayer , 523 F.2d 661 ( 1975 )

United States v. Billy Franklin Brand and Dennis Randall ... , 775 F.2d 1460 ( 1985 )

UNITED STATES of America, Plaintiff-Appellee, v. Donald ... , 130 F.3d 867 ( 1997 )

United States v. Ronald Olen Burrows , 36 F.3d 875 ( 1994 )

United States v. Robert E. Ladum Ronald D. Van Vliet Daniel ... , 141 F.3d 1328 ( 1998 )

United States v. Atul Bhagat , 436 F.3d 1140 ( 2006 )

United States v. Banks , 514 F.3d 959 ( 2008 )

United States v. James Lee, United States of America v. ... , 183 F.3d 1029 ( 1999 )

View All Authorities »