United States v. Gary Ermoian , 752 F.3d 1165 ( 2013 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-10124
Plaintiff-Appellee,
D.C. No.
v. 1:08-cr-00224-
OWW-11
GARY L. ERMOIAN,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 11-10388
Plaintiff-Appellee,
D.C. No.
v. 1:08-cr-00224-
OWW-12
STEPHEN JOHN JOHNSON,
Defendant-Appellant. ORDER AND
AMENDED
OPINION
Appeal from the United States District Court
for the Eastern District of California
Oliver W. Wanger, Senior District Judge, Presiding
Argued and Submitted
April 18, 2013—San Francisco, California
2 UNITED STATES V. ERMOIAN
Filed August 14, 2013
Amended August 28, 2013
Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,
and N. Randy Smith, Circuit Judges.
Opinion by Judge O’Scannlain
SUMMARY*
Criminal Law
The panel amended an opinion filed August 14, 2013, in
a case in which the panel held that a criminal investigation is
not an “official proceeding” under the federal statute
criminalizing obstruction of justice, 18 U.S.C. § 1512.
In the amended opinion, the panel reversed and remanded
to the district court so that it may enter a judgment of
acquittal on the obstruction of justice charges and resentence
defendant Johnson.
*
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. ERMOIAN 3
COUNSEL
John Balazs, Sacramento, CA, argued the cause and filed a
brief for defendant-appellant Gary L. Ermoian.
Jerald Brainin, Los Angeles, CA, argued the cause and filed
a brief for defendant-appellant Stephen J. Johnson.
Mark E. Cullers and Laurel J. Montoya, Assistant United
States Attorneys, Fresno, CA, argued the cause and filed a
brief for plaintiff-appellee United States of America. With
them on the brief were Benjamin J. Wagner, United States
Attorney, Fresno, CA, and Camil A. Skipper, Appellate
Chief, Fresno, CA.
ORDER
The opinion filed in this case on August 14, 2013 is
amended as follows:
In the final sentence on page seventeen of the slip
opinion, add “and resentence Johnson” after the word
“charges” and before the period.
An amended opinion is filed concurrently with this order.
4 UNITED STATES V. ERMOIAN
OPINION
O’SCANNLAIN, Circuit Judge:
We must decide whether an FBI investigation qualifies as
an “official proceeding” under a federal statute criminalizing
obstruction of justice.
I
A
The facts of this case read like an episode of the fictional
television drama Sons of Anarchy.1 Sometime in 2006, the
Central Valley Gang Impact Task Force (“CVGIT”)—a
United States Department of Justice (“DOJ”)-funded group
tasked with coordinating local law enforcement efforts to
eliminate gang-related crimes in California’s Central
Valley—learned that the Hells Angels motorcycle gang was
attempting to establish a chapter in Modesto, California.2
Hoping to disrupt the formation of this gang chapter, the
CVGIT opened an investigation into several known
associates of the Hells Angels gang in the Modesto area,
1
Sons of Anarchy is a television drama series that runs on the cable
channel FX. It documents the legal and illegal activities of a fictional
outlaw motorcycle club operating in a town in California’s Central Valley.
In the show, the club’s headquarters are located in a clubhouse adjacent
to an auto mechanic shop.
2
The Federal Bureau of Investigation (“FBI”) was also a member-
agency of the CVGIT. Because FBI Agent Nathan Elias was the lead
member of the CVGIT task force investigating the Holloways, we—like
the parties—will refer to the CVGIT’s investigation as an FBI
investigation.
UNITED STATES V. ERMOIAN 5
including Robert Holloway and his son Brent Holloway,3 the
Road Dog Cycle Shop (which they co-owned), and members
of the Merced Chapter of the Hells Angels gang who were
affiliated with Road Dog Cycle.
Through information gleaned from earlier investigations,
the CVGIT was aware that Road Dog Cycle was dealing in
stolen motorcycles and motorcycle parts. The task force also
suspected that some individuals associated with law
enforcement were leaking information to the Holloways and
were thus facilitating their criminal enterprise.
To catch the Holloways engaging in illegal activity, the
CVGIT first sought to prevent any further leaks of
confidential law enforcement information. Thus, in an effort
to ferret out some of Robert’s law enforcement sources, the
CVGIT created a “Gang Intelligence Bulletin,” which it
distributed to local law enforcement in September 2007. The
bulletin purported to contain “confidential information” that
was “intended for law enforcement personnel only.” But in
actuality, the information in the bulletin was “watered down”
to avoid leaks of sensitive information that could truly
jeopardize the CVGIT’s investigation into the Holloways and
Road Dog Cycle. In substance, the bulletin described
surveillance of the annual summer “Burn-Out Party” held at
Road Dog Cycle and named the different outlaw motorcycle
gangs seen in attendance. After circulating the bulletin, the
CVGIT monitored wiretaps it had placed on Robert’s phones,
hoping to ensnare the law enforcement officers leaking
information.
3
To avoid confusion, we refer to Robert and Brent Holloway by their
first names.
6 UNITED STATES V. ERMOIAN
The defendants in this case, Gary L. Ermoian and Stephen
J. Johnson, were charged with obstructing justice based upon
their activities during a chain of events set into motion by the
bulletin’s distribution. The morning after the Gang
Intelligence Bulletin was distributed to law enforcement
personnel, David A. Swanson4—a Deputy Sheriff and bailiff
in the county courthouse—placed a 40.8 second phone call
from his work telephone to Ermoian. At the time,
Ermoian—one of Robert’s close personal friends—was
employed as a part-time private investigator for Robert’s
attorney, Kirk McAllister. Swanson informed Ermoian that
he “saw some photos” of the Burn-Out Party and that
Ermoian should warn Robert to “watch his back.”
The wiretap on Robert’s phone recorded a flurry of
activity immediately after Swanson contacted Ermoian. Just
minutes after receiving the call from Swanson, Ermoian
called Robert to share Swanson’s tip. Given Swanson’s
position in the courthouse and his access to information about
pending warrant applications, Ermoian was concerned that
Swanson’s veiled warning that Robert should “watch his
back” might indicate that police were coming with a search
warrant. He thus advised Robert to “take a look around the
shop [to] see if you see anything . . . .” Heeding Ermoian’s
advice, Robert talked to Brent and other Road Dog Cycle
employees, checked the store for “questionable” motorcycle
parts, and put one questionable item “in the alley [behind the
store] with a tag on it.”
4
Although Swanson was charged with obstruction of justice and was
tried along with defendants Ermoian and Johnson, he was acquitted of the
charge. Thus, he is not a party to this appeal.
UNITED STATES V. ERMOIAN 7
Later that same day, Ermoian and Robert both received
several additional phone calls warning about a pending
investigation into Road Dog Cycle from defendant Johnson.
Johnson was not a member or close affiliate of the Hells
Angels motorcycle gang, but he had become acquainted with
Robert, Ermoian, and McAllister through a business he
owned and operated, which subcontracted with law
enforcement to perform canine sniff searches. Starting
sometime in 2006, Robert and his attorney McAllister had
hired Johnson on a few occasions to perform preventative
canine searches of Road Dog Cycle so that they could locate
and dispose of any drugs or other contraband found on the
premises. Shortly after Ermoian received Swanson’s tip,
McAllister requested that Johnson perform a preventative
search of Road Dog Cycle in anticipation of the pending law
enforcement raid. Upon learning that another source
suspected a raid, Johnson informed both Ermoian and Robert
that he had “overheard” a conversation at the DOJ facility
where he was contracted to conduct periodic canine searches
about an impending Bureau of Alcohol, Tobacco, and
Firearms (“ATF”)-DOJ investigation into Road Dog Cycle.
With two sources suggesting that a police raid was
imminent, Robert, Ermoian, Johnson, and other affiliates of
Road Dog Cycle flew into action. Based on the wiretap, the
CVGIT learned that they conducted counter-surveillance,
searching for undercover officers near the shop. They warned
the local chapter of Hells Angels to “make sure that [the]
crew is safe” because they were in “jeopardy” from law
enforcement crackdowns. They attempted to ferret out
informants within the motorcycle gang. And they generally
tried to “make sure that all [their] ducks [we]re in a row” and
made an effort to be “careful about what c[ame] in and out”
of the shop.
8 UNITED STATES V. ERMOIAN
Having discovered that Ermoian and Johnson were related
to the law enforcement information leaks, the CVGIT did not
move immediately to arrest them. Instead, to avoid tipping
off the other suspects to the true scope of the investigation, it
postponed action and continued to dig into the illegal
activities of Robert and Road Dog Cycle, as they were the
primary targets of the investigation. It wasn’t until June
2008, when the CVGIT’s investigation into the Holloways
was coming to a close, that FBI Agent Nathan Elias—the lead
member of the CVGIT for the Holloway case—first went to
interview Ermoian about the Holloway investigation.
Johnson was first interviewed about his involvement with
Holloway a month later. Subsequently, both Ermoian and
Johnson were arrested on charges of conspiracy to obstruct
justice.
B
On May 28, 2009, a federal grand jury returned an
indictment against twelve defendants associated with Road
Dog Cycle, charging several violations of racketeering laws
and various related offenses. In the indictment, defendants
Ermoian and Johnson were charged with conspiracy to
“corruptly obstruct, influence, and impede an official
proceeding, to wit, a law enforcement investigation
conducted by the Federal Bureau of Investigation” in
violation of 18 U.S.C. § 1512(c)(2), (k). Defendants Ermoian
and Johnson, and the charges against them, were severed
from the other defendants and charges in the indictment. The
remaining defendants pleaded guilty to various charges, and
only Ermoian and Johnson proceeded to trial.
Throughout the trial process, Ermoian and Johnson
challenged the legal validity of the obstruction of justice
UNITED STATES V. ERMOIAN 9
charge. Specifically, and relevant to this appeal, the
defendants filed a pre-trial motion to dismiss the indictment,
an objection to the jury instructions and a motion for acquittal
during trial, as well as a post-trial motion for acquittal, at all
times asserting the same general argument: they could not be
convicted under the obstruction of justice statute, § 1512,
because their alleged obstruction of an FBI investigation did
not qualify as obstruction of an “official proceeding” under
the statute. The district court rejected this argument each
time, concluding that the term “official proceeding” as used
in the statute should be read broadly to include an “FBI
investigation.”
The jury convicted Ermoian and Johnson of obstructing
justice. They timely appealed.
II
Ermoian and Johnson raise various arguments challenging
their conviction on appeal, but they focus primarily on one
issue: Did the district court err when it determined that an
FBI investigation qualifies as an “official proceeding” under
the statute criminalizing obstruction of justice?
Our circuit has never before addressed the meaning of the
term “official proceeding” as used in the obstruction of
justice statute at 18 U.S.C. § 1512. But the dearth of Ninth
Circuit case law on the question does not leave us without a
point of reference. We begin, as any effort to interpret a
statute must, with the text. The “first step in interpreting a
statute is to determine whether the language at issue has a
plain and unambiguous meaning with regard to the particular
dispute in the case.” Robinson v. Shell Oil Co., 519 U.S. 337,
340 (1997). Whether the meaning of a statute is plain “is
10 UNITED STATES V. ERMOIAN
determined by reference to the language itself, the specific
context in which that language is used, and the broader
context of the statute as a whole.” Id. at 341. If the statute’s
meaning can be resolved by reference to the statutory text
such that “the statutory language is unambiguous and ‘the
statutory scheme is coherent and consistent,’” our inquiry is
complete. Id. at 340 (quoting United States v. Ron Pair
Enterprises, Inc., 489 U.S. 235, 240 (1989)).
A
The statute under which the defendants were convicted,
18 U.S.C. § 1512(c)(2), prohibits “corruptly . . . obstruct[ing],
influenc[ing], or imped[ing] any official proceeding, or
attempt[ing] to do so.” Id. (emphasis added). Section
1515(a)(1) defines an official proceeding as:
(A) a proceeding before a judge or court of
the United States, a United States magistrate
judge, a bankruptcy judge, a judge of the
United States Tax Court, a special trial judge
of the Tax Court, a judge of the United States
Court of Federal Claims, or a Federal grand
jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal
Government agency which is authorized by
law; or
(D) a proceeding involving the business of
insurance whose activities affect interstate
commerce before any insurance regulatory
UNITED STATES V. ERMOIAN 11
official or agency or any agent or examiner
appointed by such official or agency to
examine the affairs of any person engaged in
the business of insurance whose activities
affect interstate commerce[.]
18 U.S.C. § 1515(a)(1). Of these definitions, the parties
agree that only one might cover an FBI investigation—“a
proceeding before a Federal Government agency which is
authorized by law.” Id. § 1515(a)(1)(C).
1
As used in the statute, the definition of the phrase
“official proceeding” depends heavily on the meaning of the
word “proceeding.” That word is used—somewhat
circularly—in each of the definitions for an “official
proceeding” and is key to the phrase’s meaning. See id.
“Proceeding” has been defined in various ways, ranging
from the broad to the specific. But an account of both lay and
legal dictionaries suggests that definitions of the term fall into
one of two categories: “proceeding” may be used either in a
general sense to mean “[t]he carrying on of an action or series
of actions; action, course of action; conduct, behavior” or
more specifically as a legal term to mean “[a] legal action or
process; any act done by authority of a court of law; a step
taken by either party in a legal case.” Proceeding, Oxford
English Dictionary, available at http://www.oed.com; see
also Black’s Law Dictionary 1241 (8th ed. 2004) (defining
proceeding either narrowly as (1) “[t]he regular and orderly
progression of a lawsuit, including all acts and events
between the time of commencement and the entry of
judgment;” (2) “[a]ny procedural means for seeking redress
12 UNITED STATES V. ERMOIAN
from a tribunal or agency;” and (3) “[t]he business conducted
by a court or other official body; a hearing” or more broadly
as “an act or step that is part of a larger action.”). As such,
one of the word’s definitions (“an action or series of actions”)
is broad enough to include a criminal investigation, as it
encompasses a wide range of activities. See Proceeding,
Oxford English Dictionary, available at http://www.oed.com.
But the other (“any act done by authority of a court of law; a
step taken by either party in a legal case”) would exclude
criminal investigations in the field, as it associates the term
with formal appearances before a tribunal. See id.
Dictionary definitions of the term “proceeding” alone,
therefore, cannot conclusively resolve whether an FBI
investigation qualifies as an official proceeding under § 1512.
But dictionary definitions in isolation do not end our inquiry.
When a term has both a general and a more technical
meaning, we must look to surrounding words and phrases to
decide which of the two meanings is being used. As it was
once aptly explained: “Sometimes context indicates that a
technical meaning applies. . . . And when law is the subject,
ordinary legal meaning is to be expected, which often differs
from common meaning.” Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 73 (2012).
Several aspects of the definition for “official proceeding”
suggest that the legal—rather than the lay—understanding of
term “proceeding” is implicated in the statute. For one, the
descriptor “official” indicates a sense of formality normally
associated with legal proceedings, but not necessarily with a
mere “action or series of actions.” See 18 U.S.C. § 1515; see
also Proceeding, Oxford English Dictionary, available at
http://www.oed.com. Moreover, when used to define
“official proceeding,” the word “proceeding” is surrounded
UNITED STATES V. ERMOIAN 13
with other words that contemplate a legal usage of the term,
including “judge or court,” “Federal grand jury,” “Congress,”
and “Federal Government agency.” And most importantly,
the definition of “official proceeding” at issue here clarifies
that the type of “proceeding” being described “is authorized
by law.” 18 U.S.C. § 1515(a)(1)(C) (emphasis added).
Thus, clues in the text surrounding “proceeding”—
although perhaps not conclusive—point us in a general
direction. And the overall tenor of the definitions associated
with the legal usage of “proceeding” supports the notion that
a mere criminal investigation does not qualify as one. See
Black’s Law Dictionary 1241 (8th ed. 2004). As the
commentary accompanying that definition succinctly
explains, “‘Proceeding’ is a word much used to express the
business done in courts” and “is an act done by the authority
or direction of the court, express or implied.” Id. (quoting
Edwin E. Bryant, The Law of Pleading Under the Codes of
Civil Procedure 3–4 (2d ed. 1899)). Indeed, in listing the
various actions that might qualify as a “proceeding,” in law
the earliest “ancillary or provisional step[]” adjudged to
qualify as such was an arrest, which—of course—would
occur after the criminal investigation had already been
completed. Id. (quoting Edwin E. Bryant, The Law of
Pleading Under the Codes of Civil Procedure 3–4 (2d ed.
1899)).
Thus the definition of the term “proceeding” strongly
suggests that “a proceeding before a Federal Government
agency which is authorized by law” does not encompass a
criminal investigation. See 18 U.S.C. § 1515(a)(1)(C).
14 UNITED STATES V. ERMOIAN
2
What the term “proceeding” alone leaves mildly
ambiguous, the broader statutory context makes entirely
plain: an “official proceeding” does not include a criminal
investigation.
Examining the term “proceeding” within the grammatical
structure of the definition at issue, it becomes clear that the
term connotes some type of formal hearing. The statute
refers to proceedings “before a Federal Government
agency”—a choice of phrase that would be odd if it were
referring to criminal investigations. Id. The use of the
preposition “before” suggests an appearance in front of the
agency sitting as a tribunal. As the Fifth Circuit explained
when addressing this same definition, “use[ of] the
preposition ‘before’ in connection with the term ‘Federal
Government agency’ . . . implies that an ‘official proceeding’
involves some formal convocation of the agency in which
parties are directed to appear, instead of any informal
investigation conducted by any member of the agency.”
United States v. Ramos, 537 F.3d 439, 462–63 (5th Cir.
2008).5 In short, a criminal investigation does not occur
5
Although the government cites to two different out-of-circuit decisions
in an effort to convince us that the term “official proceeding” in the
obstruction of justice statute should be read broadly to include criminal
investigations, we are not persuaded by their reasoning. See United States
v. Kelley, 36 F.3d 1118, 1128 (D.C. Cir. 1994); United States v. Gonzalez,
922 F.2d 1044, 1055–56 (2d Cir. 1991).
The first, Kelley, did not even analyze the meaning of the term
“official proceeding” as used in the obstruction of justice statute. Instead,
the court “assume[d] that the AID Inspector General’s investigation was
a proceeding under § 1512 . . .” based on an agreement between the
UNITED STATES V. ERMOIAN 15
parties. Kelley, 36 F.3d at 1128. This assumption carries no persuasive
weight.
The second, Gonzalez, addressed the meaning of “official
proceeding” as it is used in the statutory subsection delineating
appropriate venue for § 1512 prosecutions. Gonzalez, 922 F.2d at1054–56. That subsection specifies that venue lies “in the district in
which the official proceeding (whether or not pending or about to be
instituted) was intended to be affected.” 18 U.S.C. § 1512(i). The court
in that case interpreted the phrase “official proceeding” broadly to
encompass investigations, because it was concerned that if it were to
exclude investigations from the scope of the term “official proceeding” in
the venue provision, then that provision would, in effect, overrule the
substantive subsections in § 1512. Id. at 1055. Specifically, the court was
concerned that if the government could not obtain venue where an
investigation was conducted, then a criminal could not be convicted of
obstructing “an official proceeding [that was] not . . . pending or about to
be instituted at the time of the offense” as the statute contemplated. Id. at
1055–56; see also 18 U.S.C. § 1512(f)(1).
We are not persuaded that the Second Circuit correctly analyzed the
meaning of the term official proceeding in this statute. First, that court
never carefully parsed the plain meaning of the definition for “official
proceeding” but instead relied on Congress’s “purpose” to “protect those
persons with knowledge of criminal activity who are willing to confide in
the government” to reach its conclusion. Id. at 1055. Second, that court
never considered that the venue provision could extend to investigations,
not through the term “official proceeding,” but through the subsequent
parenthetical phrase—“(whether or not pending or about to be instituted).”
We thus decline to adopt the Second Circuit’s reading in this case.
Instead, we find the decision of the Fifth Circuit in Ramos to be far
more persuasive and relevant for our purposes. See Ramos, 537 F.3d at460–64. There, unlike Gonzalez, the court directly analyzed the meaning
of the phrase “official proceeding” as used in the substantive criminal
provisions of § 1512. Id. Consulting the plain language of the statute and
the broader context of the statutory scheme, that court determined that
16 UNITED STATES V. ERMOIAN
“before a Federal Government agency” like a hearing or trial
might; it is conducted “by” the agency in the field.
Looking more broadly to § 1512 where the term “official
proceeding” is repeatedly used, it becomes even more
apparent that a criminal investigation is not incorporated in
the definition. Section 1512 refers to “prevent[ing] the
attendance or testimony of any person in an official
proceeding”; “prevent[ing] the production of a record,
document, or other object, in an official proceeding”; and
“be[ing] absent from an official proceeding to which that
person has been summoned by legal process.” 18 U.S.C.
§ 1512(a)(1)(A)–(B), (a)(2)(B)(iv). The use of the terms
“attendance”, “testimony”, “production”, and “summon[]”
when describing an official proceeding strongly implies that
some formal hearing before a tribunal is contemplated.
Additionally, it would be odd to interpret “official
proceeding” broadly to incorporate investigations when the
statutory scheme already provides an explicit mechanism to
criminalize obstruction of a criminal investigation. Section
1512(f)(1) states that “an official proceeding need not be
pending or about to be instituted at the time of the offense”
for criminal liability to attach under the obstruction of justice
statute. By extending the statute’s reach to criminal activities
that occur before “official proceedings” commence, this
subsection expands the scope of the obstruction of justice
statute to include criminal investigations. By contrast, if we
were to read the phrase “official proceeding” to include an
FBI investigation, as the Government urges us to do, this
internal agency investigations of employee misconduct were not official
proceedings. Id. Our independent analysis of the text leads us to reach a
similar conclusion with regard to criminal investigations.
UNITED STATES V. ERMOIAN 17
subsection of the statute would work to criminalize actions
taken before an investigation was even “pending or about to
be instituted.” Id. We do not think that the obstruction of
justice statute was intended to reach so far back as to cover
conduct that occurred even pre-criminal-investigation.
Indeed, such a construction would be in tension with Supreme
Court precedent requiring a nexus between the obstructive act
and criminal proceedings in court. See Arthur Andersen LLP
v. United States, 544 U.S. 696, 708 (2005) (interpreting a
materially similar subsection of § 1512 as requiring that the
defendant have “knowledge that his actions are likely to
affect [a] judicial proceeding” in order to have the “requisite
intent to obstruct”).
Thus, in light of the plain meaning of the term
“proceeding,” its use in the grammatical context of the
“official proceeding” definition, and the boader statutory
context, we conclude that a criminal investigation is not an
“official proceeding” under the obstruction of justice statute.6
B
The district court in this case instructed the jury that “an
‘official proceeding’ includes an investigation by the Federal
Bureau of Investigation.” As we have already determined,
such instruction was legally erroneous: an FBI investigation
is not an official proceeding under the obstruction of justice
statute.
6
Because the meaning of the term “official proceeding” is plain and
unambiguous, we decline the Government’s invitation to consult the
statute’s legislative history. See Robinson, 519 U.S. at 340.
18 UNITED STATES V. ERMOIAN
Normally, an error in a jury instruction requires reversal
of the defendant’s conviction “unless the [error] was harmless
beyond a reasonable doubt.” United States v. Henderson,
243 F.3d 1168, 1171 (9th Cir. 2001). But here, we do not
need to determine whether the erroneous jury instruction was
harmless. Both before the district court and on appeal, the
Government conceded that, if an FBI investigation was not an
official proceeding, then the obstruction of justice charges
could not have been sustained on the evidence presented at
trial.
The Government’s concession regarding the sufficiency
of the evidence conclusively resolves this case in the
defendants’ favor. Not only should their convictions be
reversed, but retrial must also be barred. United States v.
Bibbero, 749 F.2d 581, 586 (9th Cir. 1984) (“An appellate
reversal of a conviction on the basis of insufficiency of the
evidence has the same effect as a judgment of acquittal: the
Double Jeopardy Clause precludes retrial.”). We thus reverse
and remand to the district court so that it may enter a
judgment of acquittal on the obstruction of justice charges
and resentence Johnson.7
REVERSED and REMANDED.
7
Because we reverse the convictions on the basis of the statutory
interpretation issue, we do not reach any of the defendants’ remaining
arguments raised on appeal.