United States v. Gerard Smith

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.