United States v. Gerard Smith

FILED
NOT FOR PUBLICATION
AUG 04 2016
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 14-50440
)
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-3
)
v. ) MEMORANDUM*
)
GERARD SMITH, AKA Gerard )
Robert Smith, )
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 14-50441
)
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-7
)
v. )
)
MARICELA LONG, )
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 14-50442
)
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-1
)
v. )
)
GREGORY THOMPSON, )
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 14-50446
)
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-4
)
v. )
)
MICKEY MANZO, AKA Mickey )
Shane Manzo, )
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 14-50449
)
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-6
)
v. )
)
SCOTT CRAIG, AKA Scott )
Alan Craig, )
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 14-50455
)
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-2
)
v. )
)
STEPHEN LEAVINS, )
)
Defendant - Appellant. )
)
UNITED STATES OF AMERICA, ) No. 14-50583
)
2
Plaintiff - Appellee, ) D.C. No. 2:13-cr-00819-PA-5
)
v. )
)
JAMES SEXTON, )
)
Defendant - Appellant. )
)
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
Before: FERNANDEZ, CLIFTON, and FRIEDLAND, Circuit Judges.
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 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
issues.1 We affirm.
1
In addition to the issues disposed of herein, they have raised several jury
instruction issues. We have addressed those in an opinion filed on the same date as
this memorandum disposition.
3
A) Evidentiary rulings
The Joint Appellants and Sexton challenge a number of evidentiary rulings
in their respective trials; all of their challenges fail.
(1) Challenges by the Joint Appellants
First, the district court did not abuse its discretion1 by excluding the
testimony of Paul Yoshinaga, Chief Legal Advisor to the LASD, on the grounds
that it was irrelevant and its probative value was outweighed by the risk of
confusing the jury. See Fed. R. Evid. 401–403; see also United States v. Haischer,
780 F.3d 1277, 1281 (9th Cir. 2015). While the evidence was somewhat relevant,2
it was minimally probative3 and risked misleading the jury with Yoshinaga’s legal
opinions.4 Moreover, any error in excluding the evidence was harmless5 and did
1
United States v. Wiggan, 700 F.3d 1204, 1210 (9th Cir. 2012); see also
United States v. Hinkson, 585 F.3d 1247, 1263 (9th Cir. 2009) (en banc).
2
See United States v. Vallejo, 237 F.3d 1008, 1015 (9th Cir.), amended by
246 F.3d 1150, 1150 (9th Cir. 2001); Bisno v. United States, 299 F.2d 711, 719
(9th Cir. 1961).
3
See Wiggan, 700 F.3d at 1213.
4
See id. at 1214 n.19.
5
See United States v. Moran, 493 F.3d 1002, 1014 (9th Cir. 2007) (per
curiam).
4
not constitute a constitutional violation6 in light of the marginal relevance of the
evidence and the jury instruction that the Joint Appellants could investigate
potential violations of California law by federal agents. Also, there was no
misconduct7 in the prosecution’s questioning of Leavins or its summary of his
testimony in closing argument, regardless of whether Leavins’s and Yoshinaga’s
recollections of their interactions may have differed to some extent.
Second, the district court did not abuse its discretion by excluding a video of
an inmate breaking out of his jail cell and attacking another inmate. The video’s
minimal probative value was substantially outweighed by the time that would be
wasted explaining the differences between the video and Brown’s situation,
including that the inmate victim was not held under 24-hour guard. See United
States v. Bussell, 414 F.3d 1048, 1059 (9th Cir. 2005); Fed. R. Evid. 403.
Third, the district court did not abuse its discretion by permitting Deputies
Michel and Courson to testify regarding certain incidents of inmate abuse. This
limited evidence was properly admitted to rebut the implication that the federal
investigation was unnecessary; it was not unfairly prejudicial because the jury was
already aware of the abuse allegations and was given a limiting instruction. See
6
See Haischer, 780 F.3d at 1284.
7
See United States v. Blueford, 312 F.3d 962, 968, 974 (9th Cir. 2002).
5
United States v. Hankey, 203 F.3d 1160, 1172–73 & n.11 (9th Cir. 2000).
Fourth, the district court did not abuse its discretion by refusing to admit a
video recording of a news interview with Sheriff Baca. The video was irrelevant8
because none of the Joint Appellants had seen it, and their claim that certain
witnesses relied on it is unsupported by the record. Moreover, the Joint Appellants
were not prevented from properly presenting other evidence of Sheriff Baca’s
attitude and orders they may have received.
Fifth, because the Joint Appellants never sought to admit two exhibits9 into
evidence, the district court did not abuse its discretion by failing to admit them.
No definitive ruling generally precluded evidence of Sheriff Baca’s demeanor or
attitude toward the FBI (in fact, other evidence on that topic was admitted) or
rendered superfluous a request to admit the exhibits. Cf. Dorn v. Burlington N.
Santa Fe R.R. Co., 397 F.3d 1183, 1189 (9th Cir. 2005).
Sixth, the district court did not abuse its discretion by not allowing the Joint
Appellants to cross examine Deputy Pearson about conversations he had after he
learned of the writ for Brown on the ground that it was beyond the scope of the
8
See Fed. R. Evid. 401, 402.
9
A letter from Sheriff Baca to United States Attorney Andre Birotte and a
memorandum summarizing an FBI interview with LASD Captain William Carey.
6
prosecution’s direct examination.10 Moreover, any error was harmless11 because
Pearson admitted that his memory was impaired, and undermining the reliability of
his recollection was the purpose of the Joint Appellants’ questions. Likewise, there
was no Confrontation Clause violation because the Joint Appellants were allowed
to explore the reliability of Pearson’s memory and the question about his
subsequent conversations was only marginally relevant. See Fowler v. Sacramento
Cty. Sheriff’s Dep’t, 421 F.3d 1027, 1036 (9th Cir. 2005); see also U.S. Const.
amend. VI.
Seventh, the district court did not abuse its discretion by refusing to allow
the Joint Appellants to renew their questioning of Deputy Martinez after they
already had an opportunity for re-cross examination. See Fed. R. Evid. 611(a); see
also United States v. Miller, 688 F.2d 652, 660–61 (9th Cir. 1982).
Eighth, assuming, without deciding, that the Joint Appellants should have
been permitted to ask AUSA Middleton leading questions as an adverse witness,12
10
See Fed. R. Evid. 611(b).
11
See Moran, 493 F.3d at 1014.
12
See Fed. R. Evid. 611(c)(2); United States v. Tsui, 646 F.2d 365, 368 (9th
Cir. 1981).
7
any error was harmless.13 The Joint Appellants do not claim that they were
prejudiced by the district court’s denial of Leavins’s counsel’s first request to lead
Middleton on a question regarding Sheriff Baca. Moreover, after Leavins’s
counsel’s later renewed request was denied, he did not attempt to ask Middleton
more questions. Therefore, there was no prejudice from the denial of the renewed
request to lead Middleton. See id.
Ninth, the Joint Appellants have failed to preserve the rest of their
evidentiary challenges for review by failing to explain how they constituted abuses
of discretion or materially affected the verdicts. See Greenwood v. FAA, 28 F.3d
971, 977 (9th Cir. 1994); see also United States v. Williamson, 439 F.3d 1125,
1138 (9th Cir. 2006).
Tenth, we reject the Joint Appellants’ argument that the district court’s
errors cumulatively require reversal. Most of its rulings were not erroneous, and as
to the particular rulings that we have assumed were erroneous, but nevertheless
harmless, we likewise conclude that their cumulative effect was harmless and not a
constitutional violation. See United States v. Fernandez, 388 F.3d 1199, 1256–57
(9th Cir. 2004), modified, 425 F.3d 1248, 1249 (9th Cir. 2005); cf. United States v.
Stever, 603 F.3d 747, 757 (9th Cir. 2010).
13
See Moran, 493 F.3d at 1014.
8
(2) Challenges by Craig, Long, and Leavins
We likewise reject Craig, Long, and Leavins’s argument that the district
court abused its discretion by excluding evidence of ruses used by the FBI and
LASD.14
First, the district court properly prevented the Joint Appellants from
questioning FBI agents about their use of ruses on the grounds that it was
irrelevant, would waste time, and would confuse the jury. See Fed. R. Evid. 401,
403. To the extent that evidence of FBI practices was marginally relevant to what
the Joint Appellants could do or did, it was still properly excluded because that
slight relevance was outweighed by its tendency to misdirect the jury toward the
logical fallacy that if the FBI could sometimes use ruses, it was legitimate for
LASD to do so here.
Second, the district court did not exclude all evidence regarding LASD’s use
of ruses; in fact, Craig testified about that topic. We see no abuse of discretion,
under the circumstances, in the district court’s sustaining objections to six
individual questions about that topic asked of four witnesses. Even if there were
error, because Craig and Long failed to explain the nature of the alleged errors in
14
Because we determine that the district court did not err in excluding these
categories of evidence, we also reject Leavins’s claim that those purported errors
support a finding of cumulative error. See Fernandez, 388 F.3d at 1256.
9
their opening brief, we would decline to reverse. See Greenwood, 28 F.3d at 977.
(3) Limits on Craig’s testimony
Craig claims that the district court violated his Sixth Amendment right to
testify on his own behalf regarding his intent and the danger of cell phones in
custodial settings,15 but the court did not impose a per se bar to the admission of
either type of evidence.16 With respect to intent, Craig was allowed to testify,
although the district court appropriately refused to permit his attorney to use
improper questions. See Chambers v. Mississippi, 410 U.S. 284, 302, 93 S. Ct.
1038, 1049, 35 L. Ed. 2d 297 (1973); United States v. Gallagher, 99 F.3d 329, 332
(9th Cir. 1996). The rulings were not erroneous and did not constitute
constitutional error, plain or otherwise. See Stever, 603 F.3d at 755–56 & n.3; see
also Fed. R. Crim. P. 52(b); Henderson v. United States, __ U.S. __, __, 133 S. Ct.
1121, 1126–27, 185 L. Ed. 2d 85 (2013). With respect to the dangers of cell
phones in the jail, the record does not support Craig’s claim that he was precluded
from offering that kind of evidence, through his testimony or otherwise. And even
if the court’s ruling prevented him from testifying on that topic, it would not be a
15
See Rock v. Arkansas, 483 U.S. 44, 52, 107 S. Ct. 2704, 2709, 97 L. Ed. 2d
37 (1987).
16
Cf. United States v. Pineda-Doval, 614 F.3d 1019, 1032–33 (9th Cir.
2010).
10
constitutional violation. See Stever, 603 F.3d at 756. The excluded evidence was
not extensive or broad, and was not the only evidence presented on the topic. Cf.
id.; Greene v. Lambert, 288 F.3d 1081, 1091–92 (9th Cir. 2002).
(4) Challenges by Sexton
First, we reject Sexton’s claim that the district court erred by failing to
suppress all of his grand jury testimony because the United States Attorney’s
Office purportedly violated its internal procedures by failing to warn him that he
was a target of the investigation before he testified. As a factual matter, the district
court’s finding that the Government did not consider him to be a target at the time
of his grand jury testimony is supported by the record. See United States v.
Todhunter, 297 F.3d 886, 889 (9th Cir. 2002). Even assuming that he was a target
at that time, there was no due process violation because Sexton was advised of his
Fifth Amendment rights. See United States v. Goodwin, 57 F.3d 815, 818–19 (9th
Cir. 1995); see also United States v. Washington, 431 U.S. 181, 189, 97 S. Ct.
1814, 1820, 52 L. Ed. 2d 238 (1977). We decline Sexton’s request to exercise any
supervisory authority we have to impose sanctions on the Government by
suppressing his testimony. See United States v. Wilson, 614 F.2d 1224, 1227 (9th
Cir. 1980); see also United States v. Williams, 504 U.S. 36, 46, 112 S. Ct. 1735,
1741, 118 L. Ed. 2d 352 (1992); Goodwin, 57 F.3d at 818.
11
Second, the district court did not abuse its discretion by denying Sexton’s
request to require the Government to introduce portions of his grand jury testimony
in addition to those excerpts that the Government offered. See Fed. R. Evid. 106.
Sexton never identified how the excerpts the Government sought to introduce were
“misleadingly-tailored snippet[s]” taken out of context;15 instead he claimed that
the Government excerpts were misleading as a whole. Apparently that was
because the Government excluded several somewhat-exculpatory statements. But
those statements were inadmissible hearsay16 and Rule 106 did not require their
admission.17
Third, the district court did not abuse its discretion by prohibiting Sexton
from eliciting testimony from FBI Agent Narro that he understood that the writ for
Brown’s testimony had been withdrawn.18 Contrary to Sexton’s claims, the
15
United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); see also
United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014).
16
See United States v. Ortega, 203 F.3d 675, 682 (9th Cir. 2000); cf. United
States v. Swacker, 628 F.2d 1250, 1253 & n.3 (9th Cir. 1980). We reject Sexton’s
conclusory statement in his reply brief that the statements were not hearsay
pursuant to Federal Rule of Evidence 803(3). Cf. United States v. Faust, 850 F.2d
575, 585–86 (9th Cir. 1988).
17
Collicott, 92 F.3d at 983
18
In fact, AUSA Middleton had decided not to pursue execution of the writ at
that time, but never sought to withdraw it or decided that LASD need not comply
(continued...)
12
evidence was not that the writ had, in fact, been withdrawn; instead, it was
evidence that Narro had that understanding. Narro’s impressions were irrelevant in
the absence of evidence that they had been communicated to Sexton or others at
LASD. And even assuming that Narro’s understanding was some evidence that the
writ had actually been withdrawn, that did not tend to show that the grand jury had
no further interest in Brown. Moreover, the fact remains that Sexton’s obstructive
actions commenced before the so-called withdrawal. It was irrelevant whether the
writ was withdrawn after Sexton had committed those acts. See United States v.
Rasheed, 663 F.2d 843, 853 (9th Cir. 1981); see also United States v. Aguilar, 515
U.S. 593, 602, 115 S. Ct. 2357, 2363, 132 L. Ed. 2d 520 (1995); United States v.
Ladum, 141 F.3d 1328, 1339 (9th Cir. 1998).
B) Insufficiency of the evidence
(1) False statement convictions
Craig and Long claim that there was insufficient evidence to show that their
respective statements to Agents Marx and Narro were material to the FBI as
required for their false statement convictions. See 18 U.S.C. § 1001(a)(2).
18
(...continued)
with it.
13
Reviewing the evidence in the light most favorable to the verdict,19 a rational juror
could find that the statements could have affected the FBI’s investigation for the
grand jury20 by intimidating Agent Marx and her colleagues. And although it was
not required for the Government to prove this count, there was evidence that the
statements had that intended effect because the FBI postponed returning to the jail
to interview inmates and gather information as a result. The Government was not
required to show that the statements caused the entire investigation for the grand
jury to shut down. See King, 735 F.3d at 1108.
(2) Long’s obstruction of justice conviction
Likewise, we reject Long’s claim that the evidence was insufficient to prove
that her actions were material to the grand jury investigation, as required for her
obstruction of justice conviction. See 18 U.S.C. § 1503; United States v. Thomas,
612 F.3d 1107, 1129 (9th Cir. 2010). There was sufficient evidence that Long
endeavored to obstruct justice through her efforts directed at the FBI agents and
through her efforts to convince witnesses not to cooperate with the federal
investigation. Those efforts would “have the natural and probable effect of
19
See United States v. Nevils, 598 F.3d 1158, 1161 (9th Cir. 2010) (en banc).
20
See United States v. Stewart, 420 F.3d 1007, 1019 (9th Cir. 2005); United
States v. King, 735 F.3d 1098, 1107–08 (9th Cir. 2013).
14
interfering” with the grand jury investigation. Aguilar, 515 U.S. at 599, 115 S. Ct.
at 2362 (internal quotation marks omitted) (quoting United States v. Wood, 6 F.3d
692, 695 (10th Cir. 1993)); see also Thomas, 612 F.3d at 1129. We therefore
affirm her obstruction of justice conviction.
Long’s argument is largely premised on her assertion that there was no
evidence that she knew of the writ for Brown, or that she knew that Deputies
Michel or Courson were potential grand jury witnesses. But there was sufficient
circumstantial evidence from which the jury could rationally infer Long’s
knowledge. See United States v. Bennett, 621 F.3d 1131, 1139 (9th Cir. 2010); see
also Nevils, 598 F.3d at 1161.
In light of those justifiable inferences, there was ample evidence from which
the jury could also rationally infer that Long’s actions would have the natural and
probable effect of interfering with the grand jury investigation. In fact, the actions
by her and others appear to have been successful because Brown ultimately assured
Long and others that he would not testify for the FBI. Similarly, the jury could
have inferred that Long’s presence at, and statements she made during, the
interviews of Deputies Courson and Michel were designed to pressure them not to
cooperate with the federal investigation. We therefore reject Long’s claim that
there was insufficient evidence that her endeavors to obstruct justice were material
15
to the grand jury.21
(3) Long’s conspiracy conviction
Long argues that the evidence was insufficient to sustain her conviction for
conspiracy to obstruct justice. We disagree. See United States v. Hart, 963 F.2d
1278, 1282 (9th Cir. 1992); see also United States v. Mincoff, 574 F.3d 1186, 1198
(9th Cir. 2009); United States v. Hernandez-Orellana, 539 F.3d 994, 1007 (9th Cir.
2008).
There was a great deal of evidence that Long knowingly participated22 in the
conspiracy and acted to further its objectives.23 For example, she went to the jail
where Brown was hidden in order to interfere with the grand jury investigation by
pressuring him. She was not merely physically present while her co-conspirators
committed crimes,24 but actively participated to further the conspiracy’s obstructive
21
Long has waived the argument that there was insufficient evidence the FBI
was acting as an “arm of the grand jury” by raising it too late. See United States v.
Romm, 455 F.3d 990, 997 (9th Cir. 2006). In any event, the evidence here was
sufficient to establish that the FBI was operating on behalf of the grand jury. See
Hopper, 177 F.3d at 830; cf. Aguilar, 515 U.S. at 600, 115 S. Ct. at 2362.
22
United States v. Esquivel-Ortega, 484 F.3d 1221, 1228 (9th Cir. 2007); see
also United States v. Herrera-Gonzalez, 263 F.3d 1092, 1095 (9th Cir. 2001);
United States v. Wright, 215 F.3d 1020, 1028 (9th Cir. 2000).
23
United States v. Esparza, 876 F.2d 1390, 1392 (9th Cir. 1989).
24
Cf. Herrera-Gonzalez, 263 F.3d at 1095.
16
purposes.25 Even if she did not know precisely what each of her co-conspirators
was doing, that does not undermine her connection to the conspiracy. See
Herrera-Gonzalez, 263 F.3d at 1095.
C) Fair notice
The Joint Appellants and Sexton all claim that 18 U.S.C. § 1503(a) did not
provide fair notice because it is vague, was novelly interpreted, and should have
been interpreted in accordance with the rule of lenity. See United States v. Lanier,
520 U.S. 259, 266, 117 S. Ct. 1219, 1225, 137 L. Ed. 2d 432 (1997); Webster v.
Woodford, 369 F.3d 1062, 1069 (9th Cir. 2004); see also Gollehon v. Mahoney,
626 F.3d 1019, 1023 (9th Cir. 2010). Appellants’ arguments are largely premised
on their assertion that they were prosecuted and convicted for innocuous conduct—
investigating the FBI or following orders. But they were prosecuted and convicted
for obstructing a grand jury investigation; the fact that the jury did not believe their
mens rea defenses “does not make the statute . . . constitutionally infirm.” United
States v. Lee, 183 F.3d 1029, 1033 (9th Cir. 1999).
Cases addressing § 1503’s potential vagueness in other factual
25
Cf. Esparza, 876 F.2d at 1392–93.
17
circumstances26 do not show that it is vague as applied to their conduct.27 Nor was
it novel to apply the obstruction statute to what they did: that is, to conduct
intended to obstruct justice. We also reject their request to transplant the concept
of qualified immunity from the civil to the criminal sphere. See Lanier, 520 U.S.
at 270, 117 S. Ct. at 1227; see also United States v. Gillock, 445 U.S. 360, 372–73,
100 S. Ct. 1185, 1193, 63 L. Ed. 2d 454 (1980).28 The obstruction statute provided
the Joint Appellants and Sexton with ample fair notice that their obstructive
conduct could give rise to criminal penalties.
D) Dismissal of a juror
We reject the Joint Appellants’ argument that the district court violated their
Sixth Amendment rights by dismissing Juror Five after deliberations had begun.
See United States v. Christensen, Nos. 08-50531 et al., 2015 WL 11120665, at
*31–33 (9th Cir. July 8, 2016). The district court did not abuse its discretion29 by
26
See, e.g., United States v. Bonds, 784 F.3d 582, 584 (9th Cir. 2015) (en
banc) (Kozinski, J., concurring).
27
See United States v. Jae Gab Kim, 449 F.3d 933, 942 (9th Cir. 2006)
28
Moreover, it was certainly clearly established that one could not
intentionally obstruct justice. See Aguilar, 515 U.S. at 598–99, 115 S. Ct. at
2361–62.
29
United States v. Symington, 195 F.3d 1080, 1085 (9th Cir. 1999).
18
dismissing the juror for good cause.30
The record supports the district court’s decision to dismiss Juror Five, who
revealed, over the course of three colloquies with the district court, that her
emotional state31 prevented her from being able to deliberate,32 and the district
court noted that her demeanor underscored the problems that are apparent in the
written record. The district court therefore was not required to credit her ultimate
(and somewhat grudging) statement that she could deliberate. See Christensen,
2015 WL 11120665, at *36–37; see also Beard, 161 F.3d at 1194. The Joint
Appellants’ speculation that the juror may have asked to be excused because of
conflicts with other jurors is belied by the record; indeed, the juror flatly denied
that her concerns had anything to do with the other jurors, and she never referred to
her views of the case or the guilt or innocence of the Joint Appellants. Cf.
Symington, 195 F.3d at 1084, 1088. The district court did not abuse its discretion
in dismissing the juror on account of her inability to deliberate. See Christensen,
2015 WL 11120665, at *31.
30
Christensen, 2015 WL 11120665, at *31; see also Fed. R. Crim. P.
23(b)(3).
31
United States v. Beard, 161 F.3d 1190, 1193–94 (9th Cir. 1998)
32
Symington, 195 F.3d at 1085
19
E) Sentencing
The district court increased Craig’s base offense level by three points
because he was a manager or supervisor and increased Leavins’s base offense level
by four points because he was an organizer or leader. See USSG § 3B1.1(a)–(b)
(2013);33 see also United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012).
Craig and Leavins each argue that the district court procedurally erred by
miscalculating their Sentencing Guidelines ranges. See United States v. Carty, 520
F.3d 984, 993 (9th Cir. 2008) (en banc); see also Molina-Martinez v. United States,
__ U.S. __, __, 136 S. Ct. 1338, 1345–46, 194 L. Ed. 2d 444 (2016). The district
court did not commit clear error when it applied the enhancements to Craig and
Leavins. See United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008); United
States v. Jordan, 291 F.3d 1091, 1097 (9th Cir. 2002); see also United States v.
Rosas, 615 F.3d 1058, 1066 (9th Cir. 2010).
There was sufficient evidence that Craig was a manager of criminal activity,
not merely innocuous activity. See USSG § 3B1.1(b); cf. Whitney, 673 F.3d at
975. The enhancement was not merely based on Craig’s role as an LASD
supervisor, but on his role as a supervisor in the group committing the charged
33
All references to the Sentencing Guidelines are to the Nov. 1, 2013,
version.
20
offenses. See USSG § 3B1.1, comment. (n.2). He directed Long and other LASD
personnel in interviewing Brown and other witnesses, he ordered the surveillance
of FBI agents, and he advised Long as she lied to Agent Narro. That Craig has a
contrary view of the evidence does not warrant reversal of “the district court’s . . .
reasonable interpretation of the facts.” See United States v. Awad, 371 F.3d 583,
592 (9th Cir. 2004). Moreover, the fact that Craig’s behavior may not have
qualified for the four-point enhancement does nothing to undermine the application
of the three-point enhancement. See USSG § 3B1.1, comment. (n.4).
We reject Leavins’s argument about his sentence for similar reasons. There
was ample evidence showing Leavins’s decision-making authority in the criminal
conspiracy and justifying the application of the four-point enhancement. His own
grand jury testimony indicated that he made the decision to move Brown to another
jail, and the district court was not required to credit his exculpatory explanation for
why he did so. See Awad, 371 F.3d at 592. Leavins directed the actions of other
conspirators, such as by telling Craig and Long to confront Agent Marx. Cf.
Whitney, 673 F.3d at 975. Also, while not controlling, other conspirators did refer
to him as their superior. That Leavins may also have received orders from his own
superiors does not undermine his leadership role for purposes of the enhancement.
See United States v. Barnes, 993 F.2d 680, 685 (9th Cir. 1993); see also USSG
21
§3B1.1, comment. (n.4). The district court did not clearly err by applying the four-
point enhancement to Leavins’s sentence.34
AFFIRMED.
34
Because we affirm the convictions and sentences, we need not and do not
consider the Joint Appellants’ argument that these cases should be reassigned to a
different district court judge on remand.
22