United States v. Smith

831 F.3d 1207

United States of America, Plaintiff–Appellee,

v.Gerard Smith, AKA Gerard Robert Smith, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Maricela Long, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Gregory Thompson, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Mickey Manzo, AKA Mickey Shane Manzo, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Scott Craig, AKA Scott Alan Craig, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.Stephen Leavins, Defendant–Appellant.

United States of America, Plaintiff–Appellee,

v.James Sexton, Defendant–Appellant.

No. 14-50440

No. 14-50441

No. 14-50442

No. 14-50446

No. 14-50449

No. 14-50455

No. 14-50583

United States Court of Appeals, Ninth Circuit.

Argued and Submitted July 5, 2016 Pasadena, California

Filed August 4, 2016

Todd W. Burns (argued), Burns & Cohan, Attorneys at Law, San Diego, California, for Defendant–Appellant Stephen Leavins.

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.

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.

Before: Ferdinand F. Fernandez, Richard R. Clifton, and Michelle T. Friedland, Circuit Judges.

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 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 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, 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, 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 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 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 ...