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Selected docket entries for case 14−50441
Generated: 05/13/2016 14:47:31
Filed Document Description Page Docket Text
05/13/2016 91 Main Document 2 Submitted (ECF) Reply Brief for review. Submitted byAppellant Maricela Long in 14−50441, Appellant Scott
Craig in 14−50449. Date of service: 05/13/2016. [9976353]
[14−50440, 14−50441, 14−50442, 14−50446, 14−50449,
14−50455] −−[COURT UPDATE: Updated docket text to
reflect correct brief type. 05/13/2016 by TYL] (Ivens, Gail)
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https://ecf.ca9.uscourts.gov/docs1/009128039569
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UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,v.
GERARD SMITH,Defendant-Appellant.
Case No. 14-50440D.C. No. 2:13-cr-00819-PA-3
(C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.MARICELA LONG,Defendant-Appellant.
Case No. 14-50441
D.C. No. 2:13-cr-00819-PA-7(C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.GREGORY THOMPSON,
Defendant-Appellant.
Case No. 14-50442
D.C. No. 2:13-cr-00819-PA-1(C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.MICKEY MANZO,
Defendant-Appellant.
Case No. 14-50446
D.C. No. 2:13-cr-00819-PA-4(C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.SCOTT CRAIG,
Defendant-Appellant.
Case No. 14-50449
D.C. No. 2:13-cr-00819-PA-6(C.D. Cal., Los Angeles)
UNITED STATES OF AMERICA,Plaintiff-Appellee,
v.STEPHEN LEAVINS,Defendant-Appellant.
Case No. 14-50455
D.C. No. 2:13-cr-00819-PA-2(C.D. Cal., Los Angeles)
________________________________
Appellants Scott Craig and Maricela Long’s Supplemental Joint Reply Brief
________________________________
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KAREN L. LANDAULaw Offices of Karen L. Landau2626 Harrison StreetOakland, CA 94612
Telephone: 510-839-9230
Attorney for Scott Craig
HILARY POTASHNERFederal Public DefenderGAIL IVENSELIZABETH RICHARDSON-ROYER
Deputy Federal Public Defenders321 East 2nd StreetLos Angeles, CA 90012-4202Telephone 213-894-5022
Attorneys for Maricela Long
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TABLE OF CONTENTS
PAGE
i
ARGUMENT ......................................................................................................... 1
I. The Court Committed Prejudicial Instructional Error on theFalse Statement Counts. ............................................................................... 1
II. The Mistaken Exclusion of Defense Evidence Regarding LegitimatePolice Investigative Procedures Prejudiced the ICIB Defendants. ................. 5
A. The Error Was Not Harmless ........................................................ 9
III.
The Court Below Infringed on Mr. Craig’s Sixth AmendmentRight to Testify in his Own Defense. .......................................................... 11
IV. There was Insufficient Evidence that Craig and Long’s Statementsto Marx were Material. ............................................................................... 15
V. The Evidence as to Long Was Insufficient on all Counts. ............................ 19
VI. The District Court Procedurally Erred in Imposing an UpwardAdjustment on Craig for Holding a Supervisory Role in the Offense. .......... 23
VII. CONCLUSION ......................................................................................... 28
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TABLE OF AUTHORITIES
PAGE(S)
ii
Federal Cases
Ajoku v. United States ,
134 S. Ct. 1872 (2014) ........................................................................................ 3
Armstrong v. Exceptional Child Ctr., Inc.,135 S. Ct. 1378 (2015) ....................................................................................... 21
Jackson v. Virginia,443 U.S. 307 (1979) .................................................................................... 19, 20
Mesa v. California,489 U.S. 121 (1989) ............................................................................................ 4
Miller v. Fairchild Industries ,885 F.2d 498 (9th Cir. 1989) ............................................................................ 12
Pennsylvania v. Nelson,350 U.S. 497 (1956) ..........................................................................................20
Puente Arizona v. Arpaio,No. 15-15211, slip op. (9th Cir. May 2, 2016) ...................................................... 4
United States v. Aguilar ,515 U.S. 593 (1995) .......................................................................................... 24
United States v. Bonds ,784 F.3d 582 (9th Cir. 2015) ............................................................................ 19
United States v. Cummings ,245 Fed. App’x 616 (9th Cir. 2007) ................................................................. 18
United States v. De Rosa,
783 F.2d 1401 (9th Cir. 1986) ........................................................................... 17
United States v. Facchini ,874 F.2d 638 (9th Cir. 1989) ............................................................................ 18
United States v. Gallagher ,99 F.3d 329 (9th Cir. 1996) ............................................................................... 12
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TABLE OF AUTHORITIES
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Federal Cases Continued
United States v. Goldfine ,
538 F.2d 815 (9th Cir. 1976) ............................................................................. 18
United States v. Haischer ,780 F.3d 1277 (9th Cir. 2015) ............................................................................. 5
United States v. Hinkson,585 F.3d 1247 (9th Cir. 2009) ............................................................................ 5
United States v. Jordan,291 F.3d 1091 (9th Cir. 2002) ........................................................................... 27
United States v. King ,735 F.3d 1098 (9th Cir. 2013) ........................................................................... 18
United States v. Ladum,141 F.3d 1328 (9th Cir. 1998) ........................................................................... 23
United States v. Lopez-Sandoval ,146 F.3d 712 (9th Cir. 1998) ............................................................................. 26
United States v. Magallon-Lopez ,No. 14-30249, slip op. (9th Cir. Mar. 31, 2016) .................................................. 5
United States v. Mares-Molina,913 F.2d 770 (9th Cir. 1990) ............................................................................. 27
United States v. Mayberry,913 F.2d 719 (9th Cir. 1990) ............................................................................. 18
United States v. Mustread ,
42 F.3d 1097 (7th Cir. 1994) ............................................................................. 27
United States v. Ponce ,51 F.3d 820 (9th Cir. 1995) ......................................................................... 27, 28
United States v. Rasheed ,663 F.2d 843 (9th Cir. 1981) ............................................................................. 22
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TABLE OF AUTHORITIES
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iv
Federal Cases Continued
United States v. Thorson,
633 F.3d 312 (4th Cir. 2011) ............................................................................. 27
United States v. Waters ,627 F.3d 345 (9th Cir. 2010) .............................................................................. 5
United States v. Whitney,673 F.3d 965 (9th Cir. 2012) ............................................................................. 26
Williams v. Borg ,139 F.3d 737 (9th Cir. 1998) ............................................................................. 12
Federal Statutes
18 U.S.C. § 1001 .......................................................................................... 1, 4, 5, 6
18 U.S.C. § 1503 .......................................................................................... 5, 11, 23
28 U.S.C. § 1442(a)(1) .......................................................................................... 21
Fed. R. Evid. 403 .................................................................................................... 5
Fed. R. Evid. 611 ................................................................................................... 13
Fed. R. Evid. 701 ..................................................................................................... 8
Fed. R. Evid. 702 .................................................................................................... 8
U.S. Const. amend. VI ..................................................................................... 11, 12
U.S.S.G. § 3B1.1 App. Note 3 ............................................................................... 27
U.S.S.G. § 3B1.1 App. Note 4 (1994, 2006, and 2013)........................................... 27
Miscellaenous
www.fbiagentedu.org/fbi-requirements .................................................................. 4
www.lasdcareers.org/requirements ........................................................................ 4
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ARGUMENT
I. The Court Committed Prejudicial Instructional Error on the False
Statement Counts.
In their supplemental joint opening brief (“SJOB”), Craig and Long argued
that the good faith instruction given to the jury inadequately defined the specific
intent element of making a false statement under 18 U.S.C. § 1001. SJOB at 5-9.
Further, they explained that the inadequate good faith instruction, combined with
the dual purpose instruction, reduced the government’s burden of proof on the
false statement charges and wrongly authorized conviction even if the jury found
good faith. SJOB at 9-14.
The government initially responds that the dual purpose instruction was
irrelevant to the false statement charges, contending that the instruction
specifically referenced obstruction of justice. GAB 88. This contention disregards
the arguments made regarding the jury instructions, the nature of the disputed and
refused instructions, and the evidence and argument, under which obstruction and
false statements were often treated interchangeably.When the proposed instructions were discussed, the government took the
position that the dual purpose instruction applied equally to the false statement
counts. ER 1A: 59-60, 165-66. The district court agreed. Id.1 When discussing the
instructions for the false statement charge, defense counsel requested an
amendment requiring that a defendant’s intent or purpose, as required by the false
statement charge, had to be substantial. The instruction refused by the court on
substantial purpose, ER 1A: 59, was designed to ameliorate the problems posed by
1 Craig did not object specifically to the dual purpose instruction, butrequested an instruction stating that conviction must be based on a substantialpurpose. ER 1A: 167.
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the dual purpose instruction in the context of both the obstruction of justice and
false statement charges.2
Furthermore, the court below refused a clear good faith instruction as to the
false statement charges. This allowed the government to argue, as it did, that the
defendants had to be convicted so long as they knew they violated the law by
making a false statement to an FBI agent, even if they did so in a good faith effort to
carry out what they believed to be a legitimate investigation. The government’s
closing argument demonstrates this point :
Willfulness in this context means the defendant made a
statement voluntarily and purposely. Nobody forced
them, and also knowing that it was unlawful and with the
purpose to disobey or disregard the law. There’s no need
for us to prove that either defendant was aware that he or
she was violating a specific law. Defendants were aware
of the unlawful nature of their lies and said them anyway.
First of all, these two defendants are veteran lawenforcement officers. You can infer that they know what
the law is. They know it’s a crime to lie to federal
investigators. But we have more than that in this case. We
have flat-out conversation about the crime of lying to the
FBI in the August 30th Gilbert Michel interview where
Defendant Leavins talks about lying to the FBI being a
crime.
2 The fact that the defense later agreed with the false statement instruction,after the substantial purpose amendment had been refused, does not waive theobjection. It was clear that the government would not acquiesce in the substantialpurpose clause and the court would not amend the instruction.
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ER 1809.
This passage clearly demonstrates the inadequacy of the court’s good faith
instruction: it left no room for a defense argument that Craig and Long knowinglymade false statements in a good faith effort to carry out what they reasonably
believed were lawful orders in the context of an apparently legitimate investigation.
Indeed, this passage powerfully shows the necessity of a defense instruction on the
public authority defense and the intersection of such a defense with good faith. See
JOB at 43-44.
The government compounded the prejudice from the erroneous instruction
when it pointed out that Craig, in his grand jury testimony, admitted that he used a
ruse in an effort to encourage SA Marx to talk to him. ER 1863-64. According to the
government, this testimony proved Craig was guilty: he admitted his statement was
inaccurate, he knew it was illegal, and that was that. Given that Craig and Long’s
only defense to the false statement charges was that they made those statements in
a good faith effort to carry out what they believed were lawful orders, the
instruction as given denied them a defense.
The government supports the adequacy of the instructions by arguing that
the district court properly instructed on willfulness, GAB 92-93, and asserts that
the defendants lacked a defense because Carey and Tanaka denied ordering Craig
and Long to lie to the FBI. GAB 183. Finally, the government claims that
defendants Craig and Long assuredly knew that lying to the FBI is a crime. GAB 93.
These arguments lack merit.
To begin with, lying to the FBI is not a crime. The criminal charge of false
statement has four requirements, including the intentional violation of a known
legal duty, that is, making a false statement with the intention to disregard the law.
Ajoku v. United States, 134 S. Ct. 1872 (2014). A false statement made with a
different purpose is therefore not criminal. It is far from clear that local law
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enforcement officers, including Craig and Long, understood that lying to the FBI
was a crime under any circumstances. Unlike FBI agents, local law enforcement
officers need not have a college degree, but need only have graduated from high
school in order to attend the police academy.3 Moreover, the law regarding state
versus federal jurisdiction is particularly complex, and is poorly understood by
many lawyers, let alone police officers. See generally, Mesa v. California, 489 U.S.
121, 129-33 (1989); Puente Arizona v. Arpaio, No. 15-15211, slip op. (9th Cir. May 2,
2016) (ruling that Arizona identity theft law was not facially preempted by federal
immigration law); JOB 140-49.
Furthermore, a conviction under 18 U.S.C. § 1001 requires that the false
statement be material. It’s more than questionable whether two lower-level LASD
investigators would believe that falsely threatening to arrest a FBI agent—at the
behest of their superiors—in order to obtain some information, would affect the
FBI’s decision-making. A properly instructed jury could easily have determined
they did not.
If anything, the government’s arguments demonstrate the tremendous needfor an adequate defense theory instruction on public authority, which would have
applied equally to the false statement charges, and an adequate good faith
instruction stating that good faith was inconsistent with a corrupt or willful intent
and constituted a complete defense. The dual purpose instruction further
undermined the government’s burden and heightened Craig and Long’s ability to
defend themselves against the false statement charges. The totality of the
instructional errors require reversal of the convictions on counts 1, 5, and 6.
3 Compare www.fbiagentedu.org/fbi-requirements with
www.lasdcareers.org/requirements (last visited 5/13/2016).
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II. The Mistaken Exclusion of Defense Evidence Regarding Legitimate
Police Investigative Procedures Prejudiced the ICIB Defendants.
The district court also abused its discretion when it excluded testimony
describing the commonplace use of deceptive investigative techniques by law
enforcement agents. This exclusion affected all counts of conviction. See SJOB at
20-23. Such evidence would have corroborated Craig and Long’s defense that they
lacked the specific intent required to violate §§ 1001 and 1503. It would have shown
they engaged in activities that they used routinely and believed were lawful with
respect to the § 1001 counts. See United States v. Magallon-Lopez, No. 14-30249,
slip op. (9th Cir. Mar. 31, 2016) (holding that police officers are allowed to lie to
suspects).
The government relies heavily on the deference that this Court extends to a
lower court’s evidentiary rulings. See , e.g., GAB 148-49. But such deference is not
appropriate where, as here, the rulings fall afoul of the standard established in
United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).
“[T]he exclusion of evidence offered by the defendant in a criminalprosecution under Rule 403 is ‘an extraordinary remedy to be used sparingly.’”
United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015). Rule 403’s function
is limited to excluding matters of “scant or cumulative probative force, dragged in
by the heels for the sake of its prejudicial effect.” Id. (quoting United States v.
Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000) (quoting United States v. Mills, 704
F.2d 1553, 1559 (11th Cir. 1983)). It is an abuse of discretion to exclude evidence
that is intertwined with issues of guilt or innocence. Haischer, 780 F.3d at 1282; see
also United States v. Waters, 627 F.3d 345, 357-58 (9th Cir. 2010).
The government contends that all of the objected to evidence was excluded
on proper, formal grounds. GAB 193. The government also argues, incorrectly, that
the court did not exclude evidence of the use of deceptive techniques in this case.
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GAB 191. Finally, the government contends that since minimal evidence of ruses
and deceptive techniques was introduced, any error was harmless. GAB 195-98.
The government’s contentions lack merit.
First, the government mischaracterizes the record below by arguing that the
court did not entirely preclude evidence of ruses and deceptive tactics and
suggesting that the defense did not really attempt to introduce any evidence that
was improperly excluded. GAB 193. At the outset of the trial, the district court
granted the government’s motion to preclude the defense from questioning FBI
witnesses about their practice of lying or using ruses. ER 293, 298.4 The ruling was
comprehensive: the court stated that the investigators’ intent in engaging in
deception was irrelevant for purposes § 1001 because that statute required only that
the statement in question be made “deliberately and with knowledge.” ER 297.
The court clearly ruled based on a mistaken understanding of the mens rea required
for a § 1001 conviction, thus committing an error of law (by definition an abuse of
discretion). The fact that at the end of the trial, long after this ruling, the court
ultimately instructed on willfulness does not ameliorate the earlier erroneous legalruling excluding evidence. Further, in practice, the court excluded testimony about
LASD’s routine use of deceptive investigative techniques. See ER 1222, 1322,
1324-25, 1334, 1433-34, 1717.
Second, the government wrongly contends that the defendants did not argue
that the evidence of deceptive tactics was relevant to their state of mind. To the
contrary, defense counsel expressly argued:
4 The government’s contention that parties’ arguments made the correct
mens rea clear to the court misstates the record. At the time of the court’s ruling,
the government did not correct the court’s misunderstanding of the mens rea
required for a conviction of making a false statement. See ER 297-98.
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I’m not saying I’m going to argue that my client should
be allowed—should be allowed to lie to a federal officer.
But I think I should be allowed to argue and present the
evidence that my client should be allowed to use ruses
and if that means lie to a suspect, whoever that suspect
may be, I think we’re allowed to do that.
ER 295. AUSA Fox disagreed, saying there was little probative value, and that the
evidence was not relevant to Long’s state of mind. Id. The court excluded the
evidence. The error is preserved.
Third, the government asserts that the evidence was excluded pursuant to
the established rules of evidence. GAB 193-94. But, the court’s reasons for
sustaining the government’s objections were invalid. For example, the government
points to the court sustaining its objection to a defense question to witness Tanaka
regarding whether he was familiar with ruses, as a proper exercise of discretion.
GAB 194. The government’s example disregards the applicable context: defense
counsel posed this question in an effort to lay a foundation for further questions on
whether Tanaka would’ve expected ICIB investigators to use deceptive tactics.
The court’s sustaining the objection completely closed the door to such
questioning.
The same is true of the objection the court sustained to questions posed to
witness Carey. GAB 194-95. The government argues that these objections were
sustained on the proper basis that they called for improper opinion. The contrary is
true: Carey’s opinion on what tactics were normally used by ICIB was admissible.
See Fed. R. Evid. 701, 702. Indeed, Carey’s wide-ranging experience and position
left him eminently qualified to testify about what ICIB officers did. Such testimony
was relevant, because the fact that particular tactics were commonly used by ICIB
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tended to show that the defendants treated this case similar to other investigations
and therefore that they acted in good faith.
The government also complains that the defense did not really try to elicit
the testimony at issue, saying that after the court sustained an objection to the
question posed to Tanaka regarding his familiarity with ruses, defense counsel did
not rephrase and other attorneys did not pursue the ruse issue. GAB 194. But the
court’s sustaining of the objection to this introductory question prevented the
defense from even laying a foundation for evidence about deceptive tactics. See RT
2265. Indeed, counsel’s failure to rephrase the question is unsurprising, given the
court’s prior ruling that such testimony was irrelevant. ER 295.
The same is true of the objections sustained during Carey’s testimony. The
questions posed to Carey sought evidence that activities that the government
contended proved obstruction of justice were, in fact, normal investigative
activities. Given that no improper opinion was sought, it is not surprising that
counsel gave up. After all, attorneys are supposed to listen to court rulings and act
accordingly. If anything, the government’s citation shows that the district courtabused its discretion for the additional reason that it routinely sustained the
government’s meritless objections. The trial was replete with improperly sustained
objections, for lack of foundation where a foundation was present, and for improper
opinion where an opinion was entirely proper.5 The fact that Craig and Long’s
5
Indeed, the defense was stonewalled by a variety of meritless objectionsthat the court sustained. The court sustained foundational objections to Craig’s
attorney’s attempt to question witness Sergio Gonzalez on matters that would have
corroborated Craig’s good faith. RT 2316-17. The questions concerned an October
3, 2011, meeting at which the Supremacy Clause was discussed. Later, at sidebar,
Stone stated that he did not understand why all of the foundational objections were
sustained, explaining that he was “trying to elicit testimony that correlates to what
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counsel did not retrace the steps of Leavins’ attorney reflects an acknowledgement
of the court’s rulings, not a decision that the evidence sought to be elicited was
unimportant.6
A. The Error Was Not Harmless
The government next contends that the defense was permitted to adduce
sufficient evidence of the use of deceptive techniques to present its case. GAB 195-
96. This contention fails, because the defense could introduce only limited
evidence from Craig, who could only be described as an interested party. See, e.g.,
ER 1692, 1728, 3238-39, 3261. It is correct that Craig testified about his training in
use of particular interrogative and investigative techniques, which included
deceptive ones. But Craig and Long were unable to corroborate Craig’s testimony
with evidence from an uninterested or opposing party. And Leavins, Long, and
Craig obviously could not depend on one another for corroboration, given that they
were charged together in a conspiracy and the government accused them of
standing together to obstruct a federal investigation. Moreover, Leavins’ credibility
was badly damaged by the government, when he was impeached with evidence thathe had not attended a meeting he claimed he had. Cf. RT 3188-92 with 3548-52.
Mr. Gonzalez had said about the discussion. So that the jury understands that this
gentleman was present and heard the discussion and independently went on and
Googled the supremacy clause as part of the notice.” RT 2325. The court vaguely
responded: “Well, the discussion at the time, but I don’t know if two guys were
standing over in the corner talking. I don’t think he already established that he was
at some meeting or that in fact there was a meeting. What I heard was he happened
to be there and somebody else was there and what did you hear.” Id.
6 R elatively early in the trial, the court had already threatened to hold
Leavins’ attorney, Peter Johnson, in contempt for his questioning. RT 1910-12.
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The government further avers that the court allowed evidence of deceptive
FBI practices during the cross-examination of Deputy Courson, when Courson said
that he felt he had been lied to and used by SA Marx. GAB 191. Courson did not
testify about a ruse. Rather, the evidence showed that Marx may have led Courson
on, and lied to him regarding her precise position in the FBI. Significantly, Courson
was a low-level sheriff’s deputy, not an investigator. His “feelings” did not provide
an explanation for the use of deceptive law enforcement techniques. Similarly,
general testimony regarding the investigative function of ICIB was inadequate.
GAB 198-99. The issue was not the investigative function of ICIB, it was the
techniques that ICIB agents used, and their intention in using them.
Finally, the government contends, as it did below, that evidence of deceptive
tactics was irrelevant, because “Craig and Long knew it was a crime to lie to an FBI
agent.” GAB 192. Again, the government misses the point. If Craig and Long made
false statements to Marx regarding an arrest warrant in order to carry out their
investigative duties—rather than with the intention to violate a known legal duty or
the purpose to obstruct justice—they lacked the requisite mens rea for convictionon either the obstruction or false statement counts.
The point of appellants’ argument is that the court wrongly excluded
evidence that corroborated their defense—that there was an innocent explanation
for Craig and Long’s false statements, and that this innocent explanation both
defeated the willfulness required for a false statement conviction and the intent to
obstruct justice. Evidence of deception can suggest bad faith. Evidence that law
enforcement agents routinely use deceptive tactics for a good faith reason would
have undercut that suggestion.
In sum, what was needed was testimony from an experienced and
uninterested agent or other law enforcement officer who could explain that
investigators routinely used deceptive techniques, and that using such techniques is
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a legitimate law enforcement tactic. That testimony was excluded, and it is that
testimony that was needed to support Craig’s testimony that, by making a
technically false statement to Marx, he did not intend to violate the law nor to
obstruct justice, but to obey the directives of his superiors and gain her
cooperation. The exclusion was not harmless, and reversal is required.
III. The Court Below Infringed on Mr. Craig’s Sixth Amendment Right to
Testify in his Own Defense.
The government contends that the question whether the district court
infringed on Mr. Craig’s Sixth Amendment right to testify must be reviewed for
plain error. GAB 200-01. This contention lacks merit.
Although the defense did not argue in favor of its questions based on the
Sixth Amendment, the district court prohibited speaking objections. RT 449. The
court repeatedly sustained meritless objections to the form of the question when
defense counsel asked his client questions designed to elicit a basis for the defense
case. See , e.g., RT 3223-24, 3228, 3249, 3296, 3315, 3320-21; ER 1692-93, 1701,
1716-17. This was particularly noticeable when counsel attempted to ask Craigquestions about his intent. Counsel repeatedly attempted to reframe the questions,
only to suffer the same fate. See, e.g., ER 1692-93, 1701, 1716-17; RT 3223-24. Given
the many objections sustained as leading, and the number sustained as calling for a
narrative, RT 3237-38, 3295, 3334, 3344, counsel could only conclude that his client
would not be permitted to testify about his intent.
Even if review is for plain error, Mr. Craig can satisfy that standard. The
objections were plainly without merit, given that Mr. Craig was attempting to
testify regarding his lack of criminal intent, a subject upon which he was entitled to
testify. Furthermore, as explained below, the error affected his substantial rights
under the Sixth Amendment.
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The government contends that the various questions were properly objected
to as compound and “useless.” GAB 202-03. Useless to the government, perhaps.
The questions were introductory and designed to allow the defendant to
encapsulate his defense—that he lacked the requisite criminal intent. This was his
only defense .
The government relies on inapposite authority to argue that the lower
court’s prohibition of certain defense testimony did not violate the Sixth
Amendment. In United States v. Gallagher, 99 F.3d 329, 332 (9th Cir. 1996), this
Court decided there was no violation of the Sixth Amendment where a defendant
was allowed to testify not once, but twice, and was precluded only from continuing
to speak after his attorney had finished questioning him. And in Williams v. Borg,
139 F.3d 737, 740 (9th Cir. 1998), the Court upheld the striking of a defendant’s
testimony after he refused to submit to cross-examination. See also Miller v.
Fairchild Industries, 885 F.2d 498, 514-15 (9th Cir. 1989) (the rejection of an
appellate claim based upon the trial court’s permitting the government to lead one
of its witnesses). None of the cases cited by the government involved the instantsituation: a defendant who took the stand; who was cross-examined thoroughly;
and yet who was precluded from testifying about his own intent, based on the
court’s multiple mistaken rulings about the form of a question.
Again, the government disregards appellant’s point: the questions at issue to
which objections were sustained concerned Craig’s intent. ER 1692-96, 1717-18;
RT 3223-24. He was never allowed to testify whether he possessed a forbidden
purpose in questioning Brown, Michel or Courson, an element of the obstruction of
justice charge. The court even sustained objections to proper questions that would
have allowed the jury merely to infer that Craig acted in good faith. See ER 1701.
Craig’s testimony on his own intent was needed: His only defense was that
he acted in good faith and lacked the requisite criminal intent. The government
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vigorously argued that even if the defendants possessed a good reason for
committing the acts charged as criminal, they were still guilty, so long as they had
even a partial intent to obstruct justice. This argument was supported by the dual
purpose jury instruction. Thus, under the instructions given, even if Craig acted in
good faith, he could be convicted if he also possessed an intention to obstruct. The
court’s rulings deprived Craig of both the opportunity to deny the presence of
criminal intent and to contradict circumstantial evidence that such intent was
present. Accordingly, when the record is viewed as a whole, the government’s
claim that the court reasonably exercised its discretion under Fed. R. Evid. 611
must be rejected. See GAB 204-06.
The district court also abused its discretion when it precluded Craig from
testifying as to the dangers posed by cell phones in the custodial setting.7 Again, the
court plainly abused its discretion in excluding this testimony both as “not really
relevant,” ER 1711, and as cumulative to other witness testimony. RT 3281.8 The
government claims that any error was harmless for the same reason. GAB 207-08.
But the district court’s memory was faulty: it repeatedly sustained objections toquestions directed to Tanaka and Carey regarding the particular dangers posed by a
cell phone in the custodial setting. GAB 208.9 Although Bayes and Marx admitted
7 The government states that this claim is reviewable for plain error. But
Craig objected to the court’s preclusion of his testimony. See RT 3246.
8 At sidebar, Craig’s attorney stated that he wanted Craig to testify brieflyabout the dangers of cell phones because it informed his “investigatory interest.”
RT 3246. The government misrepresented the record, stating that “there has been
significant testimony about the dangers of cell phones.” Id.
9 The government’s claim to the contrary is inaccurate and incomplete.
Tanaka did not testify about the specific dangers posed by cell phones in a custodial
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that a cell phone posed potential dangers, neither believed the danger was serious,
and both testified that the presence of a cell phone was a minor matter at best.
Ultimately, codefendant Leavins was the only witness who was permitted to give
testimony regarding the particular dangers posed by a cell phone in the hands of an
inmate. And his testimony on the point was undermined by his interest in the
matter, and went uncorroborated.
The government also contends that Craig was permitted to testify about cell
phones. But Craig was only allowed to testify that he had previously investigated
cases involving contraband in the jails, including cell phones. He was not allowed to
testify regarding his view of the significance of a cell phone in the custodial setting
and why it was important to conduct a thorough investigation into the phone’s
origin.
Craig was entitled to testify—in his own defense—as to the particular
dangers posed by an uncontrolled cell phone in the hands of an inmate. His
knowledge about cell phones informed his actions and was relevant to his intent,
the critical issue in this case. The excluded testimony that Craig considered aninmate-possessed cell phone to pose a real danger, and to indicate the presence of a
variety of crimes (possibly including jail officer corruption), would have provided
an explanation for Craig’s actions in this investigation. Such testimony bolstered
his claim that he acted in good faith, pursuant to what he believed was a lawfully
ordered investigation. This testimony was critical, because the government
contended that no reasonable law enforcement officer could have believed that the
setting; Indeed, the district court explicitly excluded such testimony. ER 1140-41.
Carey testified only that a cell phone was dangerous; he did not explain why.
ER 1303.
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investigation into a cell phone was legitimate and that the only reason for the
investigation was the involvement of the FBI.
The errors were not harmless. The government appears to argue that
because Craig was permitted to give testimony in his own defense, no error
occurred. GAB 205. The government wrongly equates Mr. Craig’s testimony about
his concern for Brown’s allegations of brutality with a denial of criminal intent. Mr.
Craig was allowed to offer a reason why he told corrupt officer and cooperator
Gilbert Michel not to discuss the case with anyone. Again, however, Craig was not
allowed to deny that he lacked any criminal intent.
Similarly, precluding Craig from testifying about the dangers of cell phones
was not harmless. Cf. GAB 207-09. Although Leavins gave testimony regarding the
dangers of cell phones, his testimony was not corroborated, and he was impeached
badly by evidence that he claimed to attend a meeting when he apparently had not.
Even if Leavins’ testimony had been sufficient, however, Craig was entitled to
testify about his knowledge and experience that informed his intent. Craig’s
knowledge about the particularized dangers posed by cell phones was relevant tohis credibility and his good faith. And that was a subject about which Leavins could
not testify.
IV. There was Insufficient Evidence that Craig and Long’s Statements to
Marx were Material.
The government insists that Craig and Long’s statements to Marx and Narro
were material because they were capable of influencing the FBI, the agency to
which the statements were addressed. GAB 131-38. This contention disregards
both the facts and the context of the charged conduct.
The government accuses the defense of making an argument based on
stereotypes about the FBI. But, the character of the FBI, the agency at issue, is
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highly relevant to deciding whether the statements made to Agent Marx and
Supervisor Narro were material.
The government contends that the statements were material, because they
caused Marx and possibly other agents to stay away from the Los Angeles County
Jail for several months. GAB 133-34. As it did below, the government points to
Marx’s testimony that she did not visit the jail for about six months out of concern
for what might happen.10 The government’s contention lacks merit.
The government’s view of the evidence most clearly falters on the question
of whether Long’s statement to Agent Narro (that an arrest warrant was going to
be issued for Marx’s arrest) and Craig’s similar statement to Marx (that he was in
the process of swearing out a complaint) were material. The materiality element
cannot be satisfied by showing mere incidental adjustments in approach by the
federal agency, here the FBI. Rather, to be material there must be an actual or
potential impact on the actions of the agency, such as on a decision to be made
within the jurisdiction of that agency. Moreover, it is the agency’s decision-making
that is critical, not the decisions or actions of a single agent. The governmentcannot make that showing—after September 26, 2011, the FBI’s investigation
continued unabated. ER 1286.
The lack of materiality in this case can be seen by examining the cases cited
by the government. For example, United States v. De Rosa, 783 F.2d 1401 (9th Cir.
10 Marx’s claim is undercut by her testimony that she did not visit the jailafter the telephone was found, because she believed “it would have been too
obvious for her to go.” ER 1052. See also, ER 1231, testimony of FBI Assistant
Director of the Los Angeles Office, Steven Martinez (“once I learned that that
phone had been compromised, I don’t think that we had a viable way of continuing
the use of that technique.”).
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1986) is cited for the applicable materiality standard: “whether the falsification is
calculated to induce action or reliance by an agency of the United States.” But the
false statements there were two answers on a questionnaire from the government
regarding the defendant’s continuing eligibility to receive disability benefits.
Although the defendant was employed with a private company, he responded that
he had not recovered sufficiently to resume his duties and had not been employed.
The court found there was sufficient evidence that a truthful answer would have
influenced the agency to follow up and determine whether the defendant was still
eligible to receive disability retirement benefits, and he wasn’t. Id. at 1408. This is
the type of materiality that is missing in the instant case.
The other cases cited by the government are to the same effect. See, e.g.,
United States v. King, 735 F.3d 1098, 1102-03, 1108 (9th Cir. 2013) (defendant lied
about reason for entering United States, concealing firearms-related activities; had
he answered truthfully, he might not have been admitted); United States v.
Mayberry, 913 F.2d 719 (9th Cir. 1990) (false representations as to assets, down
payments, settlement fees, and intention to occupy on HUD application werematerial where HUD official testified that answers to these questions determine
whether loan is classified as primary residence or investment property); United
States v. Facchini , 874 F.2d 638 (9th Cir. 1989) (lack of materiality on some counts
where false statements on forms submitted to Oregon Division of Employment
neither increased nor had propensity to increase the federal government’s
expenditure of funds; finding sufficient evidence where there was a “direct causal
link” between false statements and an improper disbursement of federal funds.);
United States v. Goldfine , 538 F.2d 815 (9th Cir. 1976) (defendants made false
statements to compliance investigators from DEA regarding out-of-state sales of
controlled substances investigated by DEA); United States v. Cummings , 245 Fed.
App’x 616 (9th Cir. 2007) (FBI’s attempts to locate classified documents would
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very likely have taken a different course had defendant not lied about knowing the
recipient of the documents).
An equivalent materiality in the context of this case would have
demonstrated an effect on the FBI’s attempts to indict deputies involved in
beatings at the jail. But the course of that investigation did not turn out differently
because of Craig’s and Long’s statements to Marx and Narro about a possible
arrest warrant for Agent Marx.
The natural and intrinsic effect of the statements at issue was not to affect
the FBI’s investigation, and, notwithstanding Marx’s testimony, they did not affect
the FBI investigation. See United States v. Bonds, 784 F.3d 582, 585 (9th Cir. 2015).
Rather, the natural reaction—and the actual one—was for the FBI to take the
matter to the U.S. Attorney. And it did. After Craig and Long contacted Marx, she
immediately reported to her supervisor, Narro, who immediately involved higher
ups, who, in turn, confirmed both that there was no warrant and that there would
be no warrant. Specifically, the next day the United States Attorney, then Andre
Birotte, telephoned Sheriff Baca, who promptly disavowed any intention to arrestan FBI agent. That same day, Birotte, ADIC Martinez, and Baca met. ER 1240-
041, 1731. The district court excluded testimony regarding the content of
discussions at this meeting, which would have shown that LASD personnel did not
again approach any FBI agents, let alone arrest one. Craig’s and Long’s remarks
triggered a meeting with the Sheriff, nothing more. The FBI’s investigation was
not stymied or discontinued.
The element of materiality is critical to limiting federal jurisdiction in
broadly framed statutes. Bonds , 784 F3d. at 585. Otherwise any false statement will
be sufficient to trigger criminal liability. The false statements here were not
material. The defendants’ convictions should be reversed.
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V. The Evidence as to Long Was Insufficient on all Counts.
The government asserts that Long’s arguments depend on inferences
“contrary to the record” in opposition to the standard under Jackson v. Virginia,
443 U.S. 307 (1979). GAB 135-36. But the government’s view of the evidence is an
all-encompassing one, in which every conflict in the evidence, whether it was
necessary to the verdict or not, was resolved in favor of its view of the facts and
culpability. Only those contested issues that were necessary to the verdict reached
can be said to have been resolved in the government’s favor; the others remain
areas where the evidence was conflicting.
The government argues with respect to the conspiracy count that “the
existence of an agreement was abundantly proven,” saying “Craig and Long
operated as partners.” GAB 136. Well, they were partners within the ICIB.
Separating out those facts that are consistent with innocence, the government is
left with their analysis that Craig and Long encouraged Michel and Courson “not
to cooperate with the federal investigation” and worked to “drive a wedge between
Brown and his FBI handlers.” Id. But those facts, if they constitute a fair reading ofthe evidence, are not clearly directed at obstruction of justice—they relate to the
FBI investigation, not planned testimony before a federal grand jury.11 Without
evidence that Long knew that Michel, Courson, and Brown had been subpoenaed
11 There was repeated testimony that it was an FBI investigation that was
obstructed. See , e.g., ER 619, 666, 758 (“They were on notice that it was an F.B.I.
investigation. They should not have obstructed it.”), 829, 879, 884, 1584, 1957,
2083, 2252.
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to testify before the federal grand jury, the actions could not constitute obstruction.
And the government failed to introduce that evidence. 12
The government then switches topics and posits that “[e]ven if Long had
not known about contemporaneous efforts to hide Brown from the FBI, it would
not matter.” GAB 137. And why would it not matter? Because she was supervised
by Leavins and he decided to move Brown. The issue of proof on exactly what role
Leavins played in moving Brown is discussed elsewhere in briefing, but the fact that
one of Long’s superiors in the Sheriff’s Department may have known or done
something cannot be imputed to her without an additional showing. And there was
no such showing.
The government’s sleight of hand continues with the examples of Long’s
“multiple criminal acts in support of the conspiracy.” GAB 138. Suggesting to
12 Indeed, the government did not even recognize the need to introduce this
evidence. Both the government and the district court believed, in essence, that the
federal cell phone “preempted” any state police powers. ER 112. Although certain
state statutes may be invalid if they are irreconcilable with federal law, see e.g.,
Pennsylvania v. Nelson, 350 U.S. 497, 518–19 (1956) (concluding that the federal
Smith Act preempted Pennsylvania Sedition Act, which proscribed same conduct),
state criminal laws are very rarely invalidated under the Supremacy Clause. What is
clear is that an “FBI phone” does not preempt state criminal law. The Supremacy
Clause is not the “source of any federal rights.” Armstrong v. Exceptional Child
Ctr., Inc., 135 S. Ct. 1378, 1383 (2015) (citations omitted). What the district court
was really talking about appears to be so-called “Supremacy Clause immunity”
which is available to federal officers in connection with the federal officer removal
statute. 28 U.S.C. § 1442(a)(1). This immunity has nothing to do with the legality
of the actions undertaken by the defendants in this case, and the fact that it was an
“FBI phone” did not suddenly “preempt” the powers of state law enforcement.
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Brown that the FBI hadn’t come back for him wasn’t obstruction if she didn’t
know he was a grand jury witness. And “mocking” Agent Narro relates to the
FBI’s investigation, if anything, and not to the grand jury proceedings.
The government papers over the lack of evidence that Long had knowledge
of a grand jury writ for Brown’s appearance with references to the “[r]umor mill.”
GAB 141 n.34. But discussion of what was happening at the jail among “low-level”
guards does not translate into what was known by Long, a recent addition to the
ICIB, a separate unit within the Sheriff’s Department, which conducted the
politically unpopular work of investigating crimes by employees. ER 637. The
government provided no evidence that Long was a “gossip” or knew about these
discussions. In fact, the FBI wasn’t sharing any information with ICIB. See ER 409,
666, 711, 1400.
The government asserts that the jury’s verdict necessarily confirms that the
writ for Brown was actually served on the Sheriff’s Department and that it was not
subsequently withdrawn. GAB 141-42. But determination of this issue was not
necessary to the verdict, and, even in the light most favorable to the government,the writ may have been faxed over to the Sheriff’s Department, and after
discussions with Baca, the USAO agreed to hold off on enforcing the writ. ER 691,
782, 1270, 1282, 1284. None of this shows that Long knew there was a writ. The
government goes on to say that even if it was withdrawn it did not undercut Long’s
guilt, citing United States v. Rasheed , 663 F.2d 843, 853 (9th Cir. 1981). It was
uncontested that the defendant in Rasheed knew there was a grand jury subpoena
for documents. See, i.d. at 851 (“[s]he does not claim that the ledgers and
notebooks were not covered by the subpoena.”). Before it was withdrawn, the date
for compliance with the writ for Brown was set as September 7. There is no
evidence that Long knew of the writ or the date, so she could not have obstructed
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justice in keeping Brown from the grand jury.13 Rasheed undermines the
government’s argument and supports Long’s position.
Making Michel feel “blackmailed by the FBI” does not address whether
Long did anything to prevent him from testifying before the grand jury. Michel had
not been subpoenaed at the time Long spoke to him. Michel’s girlfriend did receive
a subpoena, which was almost immediately withdrawn, but the government
presented no evidence that Long talked to Caruso about not testifying before the
grand jury. The government says that “Craig and Long confronted [Agent Marx] at
home and threatened her with arrest in hopes of influencing the FBI’s investigation.”
GAB 144 (emphasis added). But the obstruction must relate directly to the grand
jury proceedings—and the government continues to mix and match the FBI with
the grand jury as if they are interchangeable.14 There is nothing in the verdict or the
evidence presented that allows this leap.
United States v. Ladum, 141 F.3d 1328 (9th Cir. 1998), does not aid the
government. GAB 145. In Ladum, the defendant suggested that an individual lie to
the grand jury, and approved of plans to alter documents responsive to a grand jurysubpoena. On appeal defendant argued that the falsified records could not support
conviction, because they were never presented to the grand jury. This Court
rejected that argument, because the records had been subpoenaed and the
defendant knew they had been subpoenaed when he approved of altering them.
Here, in the absence of proof that Long knew that a particular individual had been
13 Pearson’s testimony was that he talked about the writ to Sexton, or
Manzo, or Smith, not to Craig or Long. ER 2:789.
14 The issue of mens rea is addressed elsewhere, along with the serious
problems with insufficient and inaccurate jury instructions on this issue.
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subpoenaed to testify before the grand jury, her statements to them, even if
dismissive of the FBI, could not constitute obstruction under § 1503.
With respect to materiality, the government baldly asserts that the FBI was
“serving as an ‘arm of the grand jury.’” GAB 140. This is not a question the jury
was asked. And had they been, a lot of delineation would have been required. For
one thing: Exactly when was the FBI serving in that capacity? Because the
government certainly can’t be proposing that every action taken was “as an arm of
the grand jury.” The indictment itself alleged only that the “FBI often acted as an
arm of the federal grand juries.” ER 602 (emphasis added). The testimony was
similarly imprecise: “agents would interview witnesses and then sometimes present
that testimony to the grand jury.” ER 651 (emphasis added). The Michel
investigation was covert (ER 527, 666, 1076, 1400, 1584) and there was no
delineation of when the FBI was acting as the FBI rather than as an arm of the
grand jury. ER 756. The evidence was therefore insufficient. See United States v.
Aguilar , 515 U.S. 593, 600 (1995). Long’s convictions should be reversed.
VI.
The District Court Procedurally Erred in Imposing an UpwardAdjustment on Craig for Holding a Supervisory Role in the Offense.
The government contends the district court did not err in imposing a three-
level upward adjustment on Craig for a supervisory role in the offense. GAB 281-
85. The government’s argument relies on a faulty reading of the applicable law, and
a conveniently incomplete view of the facts. Craig’s sentence must be vacated, and
the case remanded for resentencing before a different judge.
The government quotes the district court’s statement, which echoed the
PSR, as showing that the defendant held a supervisory role in the offense.
GAB 281. But the government’s argument makes the point that the district court
equated being a “senior investigator with ICIB and co-defendant Long’s training
agent” with having a supervisory role in the offense. Craig may have been
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nominally “in charge” of the cell phone investigation, along with co-lead
investigator Long, but he himself was subject to the supervision and direction of
four LASD executives: Sheriff Baca, Undersheriff Tanaka, Captain Carey, and Lt.
Leavins.
The government makes a variety of claims regarding Craig’s participation in
the offense conduct and contends that he organized others for the purpose of
carrying out the crime. GAB 280-81. But this argument ignores the entirety of the
offense.
It is worth noting Craig’s subordinate role within the investigation. Sheriff
Baca initiated the investigation, Undersheriff Tanaka and Captain Carey
participated in it and delegated immediate supervision to Leavins. ER 1291-92,
1294. Carey assigned Craig to the investigation. RT 2635. Sheriff Baca himself
ordered that ICIB investigators contact SA Marx and attempt to interview her.
ER 1329-33, 1516-17, 2153; RT 2619-21. And it was Baca who relayed to Carey that
Craig and Long should do everything but put handcuffs on Marx. ER 2323.
Craig was charged in a conspiracy with the other defendants, but at the time
of trial, Baca, Tanaka and Carey were unindicted. But a conspiracy to obstruct
justice, if it existed at all, was formed at the executive level of the LASD: by Sheriff
Baca, who has pleaded guilty to making a false statement, Undersheriff Tanaka,
who has been convicted, and Captain Carey, who also pleaded guilty. These three
defendants may well have organized others to engage in the offense conduct. By
way of example, although Craig may have requested surveillance on agents be
conducted, it had to be authorized by higher-ups, namely Leavins and Carey.
ER 1723.
Treating Craig as a supervisor for sentencing purposes, when he was ordered
to carry out the cell phone investigation, including investigating the FBI agents and
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Anthony Brown, and was himself directed by LASD executives, is both a plain
misapplication of the guidelines and a fundamental miscarriage of justice.
The government’s legal arguments supporting the adjustment also fail.
Generally, the government seems to contend (a) that Craig’s role was important,
and (b) that he supervised Maricela Long and tried to recruit Courson and Michel
to the conspiracy. Therefore, reasons the government, he qualifies for the
adjustment.
As to the first point, a defendant’s importance to a conspiratorial offense, or
even his level of culpability, is not sufficient to support an upward adjustment for
role. United States v. Whitney, 673 F.3d 965, 974 (9th Cir. 2012).
As to the second point, the role adjustment cannot be applied to Craig based
on his supervision of Long. To receive an upward adjustment for a supervisorial
role, a defendant must exercise control over at least one other criminally responsible
participant . Id. at 975-76 ; United States v. Lopez-Sandoval, 146 F.3d 712, 717 (9th
Cir. 1998).
The government states that the “facts in the PSR show Craig’s managementand supervision of Long and his organization of others in the commission of the
offense.” GAB 281. Regardless of the contested statements in the PSR, the trial
record showed that Craig did not supervise Long in connection with the charged
activities. Indeed, according to government witness Michele Miller, Long and
Craig were both lead investigators. RT 936. The government’s characterization of
Craig as “coaching” Long during a phone conversation, GAB 282, is simply
inaccurate. Craig’s statements were nothing more or less than statements that a
more experienced investigator might make; greater experience does not translate to
control or supervision.
Additionally, although other LASD staff participated in the investigation,
none were alleged to be criminally responsible. And the notion that Craig tried to
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recruit Courson and Michel into the conspiracy by (1) asking Courson to tell Craig
that he received a subpoena and (2) telling Michel not to talk to the FBI, GAB 284,
is an entirely unreasonable reading of the record. While the government may view
Craig’s conduct as an attempt to obstruct a federal grand jury proceeding, his
conduct cannot fairly be characterized as an attempt to recruit conspirators.
The government’s argument misapprehends the law regarding § 3B1.1 on
another significant point. Instead of responding to Mr. Craig’s argument that the
factors set forth in App. Note 3, U.S.S.G. § 3B1.1, show that he did not qualify for a
supervisorial enhancement, the government contends that these factors are not
relevant to whether a defendant should receive a role adjustment, but only to which
role adjustment a defendant should receive—three or four levels. GAB 283. This
contention is contradicted by the weight of authority, including a case cited by the
government.
The multi-factor test has remained essentially unchanged since the advent of
the guidelines. Compare U.S.S.G. § 3B1.1, App. Note 4 (2013), with U.S.S.G. §
3B1.1, App. Note 4 (2006), and with U.S.S.G. § 3B1.1, App. Note 4 (1994). Severalfederal circuits, including this one, have considered the factors identified in App.
Note 3 in deciding whether to impose an upward adjustment for role in the offense
at all , not merely in deciding between upward adjustments for an organizer or
supervisor. See United States v. Jordan, 291 F.3d 1091, 1097 (9th Cir. 2002); United
States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); United States v. Mares-Molina, 913
F.2d 770, 772 (9th Cir. 1990); accord United States v. Thorson, 633 F.3d 312, 318
(4th Cir. 2011) (“The Application Notes also provide various factors for
consideration in determine whether a defendant is an organizer or a leader.”);
United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994) (“We also use the
seven factors to review whether a defendant could have played any aggravated role
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at all.”). Such a ruling is logical, because the factors relate fundamentally to a
person’s role in the offense. Indeed, in Ponce, this Court stated:
The factors to be considered when determining whether a
defendant was an organizer or leader include: the exercise
of decisionmaking authority, the nature of the offense and
the defendant’s participation in the offense, the
recruitment of accomplices, the claimed right to a larger
share of the fruits of the crime, and the degree of control
and authority exercised over others. U.S.S.G. § 3B1.1,
comment. (n.4)
Ponce , 51 F.3d at 826 (emphasis added). Nowhere does this Court indicate that the
factors are relevant only to distinguishing between a four-level leadership role
adjustment and a three-level supervisory role adjustment. The government does
not even attempt to show how, under the seven-factor test, Craig qualifies for a
supervisorial adjustment; presumably, it cannot.
In sum, the district court’s imposition of an upward adjustment for a
supervisorial role in the offense is clearly erroneous and requires vacatur of the
sentence.
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VII. CONCLUSION
For the foregoing reasons, Appellants Scott Craig and Maricela Long
respectfully request that their convictions be reversed. Appellant Craig also
requests, in the alternative, that his sentence be vacated and the matter remanded
for resentencing.Respectfully submitted,
HILARY POTASHNER
Federal Public Defender
DATED: May 13, 2016 By s/ Gail Ivens
GAIL IVENSELIZABETH RICHARDSON-ROYERDeputy Federal Public DefendersAttorneys for Maricela Long
DATED: May 13, 2016 By s/ Karen L. Landau
KAREN L. LANDAUAttorney-at-Law
Attorney for Scott Craig
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CERTIFICATE OF COMPLIANCE
I certify that (1) this brief is accompanied by a motion for leave to file an
oversized brief pursuant to Circuit Rule 32-2 and is 8305 words long, excluding the
portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and (2) this brief complies
with the typeface requirements of Fed. R. App. 32(a)(5) and Circuit Rule 32-1,
because it has been prepared in a proportionally spaced typeface of 14 points or
more using Microsoft Word 2010.
DATED: May 13, 2016 By s/ Gail Ivens
GAIL IVENSDeputy Federal Public DefenderAttorney for Maricela Long
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CERTIFICATE OF SERVICE
I hereby certify that on May 13, 2016, I electronically filed the foregoing with
the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit
by using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and
that service will be accomplished by the appellate CM/ECF system.
Diana Miner
Diana Miner
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