sexton opening brief_9th circuit appeal

Appeal No. 14-50583

IN THE

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

United States of America,

Plaintiff and Respondent,

vs.

James Sexton, Defendant and Appellant.

On Appeal From the United States District Court for the Central District of California

Hon. Percy Anderson CASE NO. 2:13-CR-00819-PA-5

APPELLANT SEXTONS OPENING BRIEF

THOMAS P. OBRIEN (SB# 166369) NICHOLAS J. BEGAKIS (SB# 253588) KATHRYN C. WANNER (SB# 269310) PAUL HASTINGS LLP 515 South Flower Street; Twenty-Fifth Floor Los Angeles, CA 90071-2228 Tel. (213) 683-6000 Fax (213) 627-0705

Attorneys for Appellant James Sexton

Case: 14-50583, 07/24/2015, ID: 9622230, DktEntry: 18-1, Page 1 of 77

TABLE OF CONTENTS Page

-i-

I. PREFATORY STATEMENT ......................................................................... 1 II. STATEMENT OF JURISDICTION ............................................................... 4 III. STATEMENT OF BAIL STATUS OF THE APPELLANT .......................... 5 IV. STATEMENT OF ISSUES ............................................................................. 6 VI. STANDARDS OF APPELLATE REVIEW ................................................... 8 VII. STATEMENT OF FACTS AND STATEMENT OF THE CASE ...............10

A. Mr. Sextons Involvement In Investigating Inmate Browns Possession of a Contraband Phone ......................................................10

B. Between August 23, 2011 and September 12, 2011 When Inmate Brown is Re-Booked Under His Name, the FBI Does Not Request To Interview or Meet With Him .........................................................12

C. The USAO and FBI Halted the Investigation into Inmate Brown ..13 D. The Government Begins an Investigation into LASDs Response to

The Contraband Phone and Fails To Provide Mr. Sexton with a Target Notice .......................................................................................16

E. The Government Indicts Mr. Sexton and Tries Him for Conduct Occurring After August 29, 2011 ........................................................19

F. After The First Jury Hung, The Government Re-Tries Mr. Sexton....21 VIII. SUMMARY OF THE ARGUMENT ............................................................25 IX. ARGUMENT .................................................................................................30

A. The District Court Erred In Giving a Mixed Motive Instruction And In Denying Mr. Sextons Motion To Dismiss the Indictment ....31 1. The Fair Warning Doctrine Should Have Led to Dismissal

of the Indictment .......................................................................31 2. An Instruction Is Improper Where It Fails To State the

Necessary Elements of the Charged Crime ..............................32 3. The Law Requires a Defendant to Act with a Predominantly

Corrupt Purpose ........................................................................33 4. Both the Fair Warning Doctrine and the Rule of Lenity

Shows the Error in the District Courts Instruction ..................38 B. The District Court Erred in Allowing the Government to Unfairly

Edit Mr. Sextons Grand Jury Testimony ...........................................44


TABLE OF CONTENTS (continued)

Page

-ii-

C. The District Court Erred In Failing To Suppress Defendant Sextons Grand Jury Testimony ..........................................................49

D. The District Court Erred In Excluding Testimony Regarding The Withdrawal Of The Writ Of Habeas Corpus.......................................56

X. CONCLUSION ..............................................................................................62 CERTIFICATE OF COMPLIANCE .......................................................................63 STATEMENT OF RELATED CASES ...................................................................64


TABLE OF AUTHORITIES Page(s)

-iii-

CASES

Arthur Andersen LLP v. United States, 544 U.S. 696 (2005) ............................................................................................ 37

Bank of Nova Scotia v. United States, 487 U.S. 250 (1988) ............................................................................................ 56

Brady v. Maryland, 373 U.S. 83 (1963) .............................................................................................. 55

Elkins v. United States, 364 U.S. 206 (1960) ............................................................................................ 55

Griffith v. Kentucky 479 U.S. 314, 323(1987) .................................................................................... 56

Messerschmidt v. Millender, 132 S. Ct. 1235 (2012) ............................................................................ 27, 41, 42

Neder v. United States, 527 U.S. 1 (1999) ................................................................................................ 32

United States v. Aguilar, 515 U.S. 593 (1995) ...................................................................................... 57, 59

United States v. Alcantara-Castillo, No. 12-50477, 2015 U.S. App. LEXIS 9754 (9th Cir. Jun. 11, 2015) ..................................................................................................................... 8

United States v. Banks, 514 F.3d 959 (9th Cir. 2008) .................................................................. 26, 36, 37

United States v. Bonds, No. 11-10669, 2015 U.S. App. LEXIS 6708 ...............................................passim

United States v. Campos-Serrano, 404 U.S. 293 (1971) ............................................................................................ 43

United States v. Caruto, 663 F.3d 394 (9th Cir. 2011) .............................................................................. 32


TABLE OF AUTHORITIES (continued)

Page(s)

-iv-

United States v. Castro-Cabrera, 534 F. Supp. 2d 1156 (C.D. Cal. 2008) ........................................................ 27, 46

United States v. Ching Tang Lo, 447 F.3d 1212 (9th Cir. 2006) ............................................................................ 33

United States v. Chu Kong Yin, 935 F.2d 990 (9th Cir.1991) ........................................................................... 9, 60

United States v. Collicott, 92 F.3d 973 (9th Cir. 1996) .......................................................................... 27, 45

United States v. Crocker, 568 F.2d 1049 (3d Cir. 1977) ............................................................................. 55

United States v. Gonsalves, 781 F.2d 1319 (9th Cir. 1986) ............................................................................ 51

United States v. Grace, 526 F.3d 499 (9th Cir. 2008) .............................................................................. 51

United States v. Jacobs, 547 F.2d 772 (1976) ...................................................................................... 53, 54

United States v. Jenkins, 785 F.2d 1387 (9th Cir. 1986) ............................................................................ 55

United States v. Kaminski, 692 F.2d 505 (8th Cir. 1982) .............................................................................. 49

United States v. Karaouni, 379 F.3d 1139 (9th Cir. 2004) ............................................................................ 43

United States v. Kojayan, 8 F.3d 1315 (9th Cir. 1993) ................................................................................ 47

United States v. Lanier, 520 U.S. 259 (1997) .......................................................................... 27, 39, 40, 41

United States v. LaRouche Campaign, 695 F. Supp. 1265 (D. Mass 1988) ..................................................................... 41



Page(s)

-v-

United States v. Liu, 731 F.3d 982 (9th Cir. 2013) ........................................................................ 32, 43

United States v. Lopez-Figueroa, 316 F. Appx 548 (9th Cir. 2008) ....................................................................... 49

United States v. Lukashov, 694 F.3d 1107 (9th Cir. 2012) .............................................................................. 8

United States v. Mancuso, 718 F.3d 780 (9th Cir. 2013) ........................................................................ 36, 37

United States v. Mandujano, 425 U.S. 564 (1975) ...................................................................................... 52, 53

United States v. Morris, 633 F.3d 885 (9th Cir. 2011) ................................................................................ 8

United States v. Munguia, 704 F.3d 596 (9th Cir. 2012) ........................................................................ 32, 38

United States v. Pacheco-Ortiz, 889 F.2d 301 (1st Cir. 1989) ......................................................................... 54, 55

United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981) ............................................................ 33, 35, 59, 60

United States v. Rivera-Guerrero, 377 F.3d 1064 (9th Cir. 2004) ............................................................................ 60

United States v. Rodman, 776 F.3d 638 (9th Cir. 2015) .............................................................................. 33

United States v. Ruiz, 710 F.3d 1077 (9th Cir. 2013) .............................................................................. 8

United States v. Ryan, 455 F.2d 728 (9th Cir. 1971) ........................................................................ 33, 35

United States v. Saathoff, 708 F. Supp. 2d 1020 (S.D. Cal. 2010)............................................................... 40



Page(s)

-vi-

United States v. Santos, 553 U.S. 507 (2008) ............................................................................................ 43

United States v. Schuler, 813 F.2d 978 (9th Cir. 1987) .............................................................................. 61

United States v. Shetler, 665 F.3d 1150 (9th Cir. 2011) ...................................................................... 36, 37

United States v. Simpson, 927 F.2d 1088 (9th Cir. 1991) ............................................................................ 51

United States v. Sitton, 968 F.2d 947 (9th Cir. 1992) ........................................................................ 50, 51

United States v. Smith, et al., Ninth Circuit Case No. 14-50440 ....................................................................... 30

United States v. Thomas, 612 F.3d 1107 (9th Cir. 2010) ...................................................................... 33, 34

United States v. Thompson, 37 F.3d 450 (9th Cir. 1994) .......................................................................... 48, 61

United States v. Thompson, 728 F.3d 1011 (9th Cir. 2013) ............................................................................ 40

United States v. Walker, 652 F.2d 708 (1981) ...................................................................................... 47, 48

United States v. Washington, 431 U.S. 181 (1977) ...................................................................................... 52, 53

United States v. Whittemore, 776 F.3d 1074 (9th Cir. 2015) .............................................................................. 8

United States v. Williams, 504 U.S. 36 (1992) .............................................................................................. 50

United States v. Wood, 6 F.3d 692 (10th Cir. 1993) ................................................................................ 57



Page(s)

-vii-

United States v. Yida, 498 F.3d 945 (9th Cir. 2007) ................................................................................ 8

STATUTES

18 U.S.C. 242 .................................................................................................................... 39 371 .................................................................................................... 4, 19, 32, 33 1503 ...........................................................................................................passim 1959 ............................................................................................................ 26, 36 3231 .................................................................................................................... 4

21 U.S.C. 856(a)(1) ......................................................................................... 36, 37

28 U.S.C. 1291 ........................................................................................................ 4

42 U.S.C. 1983 ...................................................................................................... 41

OTHER AUTHORITIES

Fed. R. App. Proc. 4(b) .............................................................................................. 4

Fed. R. Evid. 106 ........................................................................................... 6, 27, 45

U.S. Constitution Fourth Amendment ............................................................................................ 41 Fifth Amendment ......................................................................................... 52, 55


I. PREFATORY STATEMENT

This appeal is the unfortunate product of a turf war taken to the extreme.

Two law enforcement agenciesthe Los Angeles County Sheriffs Department

and the Federal Bureau of Investigation (FBI)both thought they were more

important than the other. That jousting by superior decision makers resulted in

lower level officers facing federal convictions for obstructing justice when they

thought they were serving justice. Convicted, when superior officers ordered

themas part of their law enforcement obligations, as part of their jobsto do

exactly as they did. This is not criminal activity. This is not obstruction of justice.

It is a tragedy that this Court should correct.

Appellant James Sexton, a Los Angeles County Deputy Sheriff, was

convicted at trial for following his superiors orders. Under the Federal

Governments view of the facts, he was convicted for his role in hiding inmate

Anthony Brown from the FBI and from a Federal Grand Jury. The reality is

different. Inmate Brown was found by the Sheriffs Department to have

possession of a cellphone in the Los Angeles Mens Central Jail, a clear violation

of jail rules and state law. Upon learning the phone, and possibly narcotics, were

provided to Inmate Brown by the FBI (which the FBI had not previously disclosed

to the Sheriffs Department), the Sheriffs Department leadership grew concerned

about jail safety, about rogue FBI agents, and wanted to understand what was


-2-

happening in the jail. Sheriff Lee Baca publicly launched an investigation arising

from the FBIs decision to smuggle a contraband cell phone to Inmate Brown, a

violent criminal serving a sentence of 423 years to life. As part of that effort,

Sheriff Baca and other senior officers decided to take Inmate Brown off the grid to

protect his life until they had a better understanding of what was going on. They

ordered junior officers, like Mr. Sexton, to assist in that effort.

This, in turn, caused the FBI and the Federal Government to respond, but not

because the Grand Jurys investigation had been impeded. Rather, they decided

that the Sheriffs Departments response to investigate the FBI after finding Inmate

Brown with an FBI phone was unlawful. And they came with vengeance towards

the junior officers, like Mr. Sexton, who simply followed orders. They prosecuted

them for obstruction of justice, knowing full well these junior officers believed

they were serving justice by following their superior officers orders.

A first jury, with full knowledge of the facts, was unwilling to convict

Mr. Sexton. They deadlocked 6-6, resulting in a mistrial. Rather than let their

charges against Mr. Sexton pass, the Government pressed on. Except this time,

they sought and succeeded in having excluded the core of the evidence Mr. Sexton

relied on during the first trial. On a purposefully shortened record, a second jury

convicted Mr. Sexton.


-3-

This Court has the power to correct this result and it should do so. In the

process of the second trial, the District Court committed a number of errors. As

shown below:

The District Court gave a confusing mixed motive instruction that

allowed the jury to convict despite Mr. Sextons good faith belief that

he was participating in a lawful investigation.

The District Court allowed the Government to unfairly edit Mr.

Sextons Grand Jury testimony during the second trial in violation of

the Rule of Completeness, rendering the testimony misleading.

The District Court failed to suppress Mr. Sextons Grand Jury

Testimony despite the fact that the Government failed to provide Mr.

Sexton with a target warning as required by Department of Justice

policy before taking his testimony.

The District Court excluded evidence that neither the FBI, nor the

Grand Jury, was ever looking for Inmate Brown during the time he

was allegedly hidden.

Any one of these errors is sufficient to reverse the conviction. Combined,

the law, the record, and the equities confirm that this is a conviction the Court

should not allow to stand.


-4-

II. STATEMENT OF JURISDICTION

The Indictment in this matter was filed on November 20, 2013 and charged

Mr. Sexton with Obstruction of Justice in violation of 18 U.S.C. 1503(a) and

Conspiracy to Obstruct Justice in violation of 18 U.S.C. 371 for his role in

guarding an inmate caught with a contraband cell phone. (Excerpts of Record

(ER) 480-507.)

Subject Matter Jurisdiction in the District Court: Because the Indictment

charges violations of the laws of the United States, the District Court had

Jurisdiction pursuant to 18 U.S.C. 3231.

Subject Matter Jurisdiction in this Court: This Court has jurisdiction to

review the final judgment entered in the District Court and all matters collateral

thereto pursuant to 28 U.S.C. 1291.

Entry of Judgment and Timely Notice of Appeal: A jury convicted Mr.

Sexton of Obstruction of Justice and Conspiracy. (ER11-12.) The District Court

entered the Judgment and Commitment Order on December 16, 2014. (ER7-10.)

Mr. Sexton timely filed a notice of appeal pursuant to Federal Rule of

Appellate Procedure 4(b) on December 22, 2014. (ER1-6.)


-5-

III. STATEMENT OF BAIL STATUS OF THE APPELLANT

Mr. Sexton sought bail pending appeal in the District Court. (ER74-99.)

The District Court denied the Motion for Bail on February 9, 2015. (ER73.)

Mr. Sexton subsequently moved for bail pending appeal which this Court granted

on February 27, 2015. (ER71-72.) Pursuant to this Courts Order, the District

Court altered Mr. Sextons conditions of release on April 7, 2015. (ER68-70.)

Mr. Sexton remains released pursuant to the conditions set forth in the District

Courts Order of April 7, 2015.


-6-

IV. STATEMENT OF ISSUES

1. Mixed Motive Instruction and Failure to Grant Motion to Dismiss

Indictment: Whether the District Court erred by failing to dismiss the indictment

under the Fair Warning Doctrine when Mr. Sexton reasonably believed his actions,

taken as a law enforcement official, were lawful? Relatedly, whether the District

Court erred by instructing the jury on a mixed motive mens rea despite the fact

that there is no Circuit support for such an instruction in an obstruction case?

2. Rule of Completeness: Whether under Federal Rule of Evidence 106,

the District Court erred by not requiring the Government to provide the jury with

additional portions of Mr. Sextons grand jury testimony that showed that the

selected snippets of his grand jury testimony the Government invoked were in fact

speculative, indefinite, and contrary to the Governments characterizations? And

whether the failure to admit that evidenceevidence that was admitted in the first

trial which hungwas prejudicial?

3. Due Process and Supervisory Powers: Whether the District Court

should have exercised its supervisory powers to suppress all of Mr. Sextons Grand

Jury testimony when the Government subpoenaed Mr. Sexton after he had become

a target of the Grand Jury investigation in violation of Department of Justice policy

and thereby treated Mr. Sexton differently from similarly situated Defendants?


-7-

4. Materiality of Obstruction: Whether it was error to exclude evidence

that the obstruction was not material because the Grand Jurys writ of habeas

corpus for Inmate Brown was withdrawn before the witness was scheduled to

appear and that any delay caused by the Los Angeles County Sheriffs Department

(LASD) had no effect on the Grand Jurys investigation?


-8-

VI. STANDARDS OF APPELLATE REVIEW

1. Mixed Motive Instruction: This Court reviews de novo whether jury

instructions properly state the elements of the charged offense and adequately

cover the defenses theory of the case. United States v. Whittemore, 776 F.3d

1074, 1077 (9th Cir. 2015).

2. Rule of Completeness: The Court reviews evidentiary rulings for

abuse of discretion and any underlying factual determinations for clear error.

Whittemore, 776 F.3d at 1077-78 (citing United States v. Lukashov, 694 F.3d 1107,

1114 (9th Cir. 2012)). The interpretation of the Federal Rules of Evidence,

however, is a question of law that is reviewed de novo. United States v. Yida, 498

F.3d 945, 949 (9th Cir. 2007).

3. Due Process and Supervisory Powers: The Court reviews Due Process

claims de novo. United States v. Morris, 633 F.3d 885, 888 (9th Cir. 2011). The

Court reviews allegations of prosecutorial misconduct for harmless error. United

States v. Alcantara-Castillo, No. 12-50477, 2015 U.S. App. LEXIS 9754, at *8

(9th Cir. Jun. 11, 2015). In that regard, the Court reviews the challenged conduct

in the entire context of the trial, and reverse[s] only if it appears more probable

than not that prosecutorial misconduct materially affected the fairness of the trial.

Id. (citing United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013)).


-9-

4. Materiality of Obstruction: Because the trial courts ruling turned on

its belief regarding the materiality of the alleged evidence, a question of law, this

Court reviews the decision to exclude the evidence de novo. United States v. Chu

Kong Yin, 935 F.2d 990, 994 (9th Cir.1991) (evidentiary rulings reviewed de novo

if legal issues predominate).


-10-

VII. STATEMENT OF FACTS AND STATEMENT OF THE CASE

A. Mr. Sextons Involvement In Investigating Inmate Browns Possession of a Contraband Phone

In August 2011 the LASD discovered Inmate Anthony Brownan

individual who had already been sentenced to a term of 423 years in state prison

was in possession of a contraband cell phone at Los Angeles County Mens Central

Jail. (ER205 at 844:17-22.) It was later learned that the phone belonged to the

FBI, which had given the LASD no warning of its intent to smuggle a phone into

the jail. (ER184 at 658:5-16.) The FBI inserted the phone into a custody facility

by way of an undercover operation during which an undercover agent paid a bribe

to a corrupt deputy to deliver the phone to Inmate Brown. (ER183 at 574:11-19.)

Phones in custody facilities can be extremely dangerous as they are used to

coordinate murder for hire, escape, and intimidation of witnesses, among other

things. (ER249-250 at 1019:10-1020:22.) Rightfully concerned for jail safety,

Sheriff Lee Baca ordered an investigation into the contraband phone. (ER207 at

846:10-12.) This investigation commenced following a meeting held at LASD

headquarters on a Saturday and attended by senior LASD command staff,

including Sheriff Baca, Undersheriff Paul Tanaka, Captain William Carey, and Mr.

Sextons commanding officer and co-defendant Lieutenant Gregory Thompson.

(ER210-211 at 849:8-850:4.) Mr. Sexton, a junior deputy, did not attend that

meeting. (Id.)


-11-

At the outset, the LASD launched an investigation into corrupt LASD

personnel who had smuggled the phone into Inmate Brown as well as the FBI

agents involved in the operation; based on LASD command staffs concerns that

such a dangerous and ill planned operation was not sanctioned by the FBI and was

possibly done by a rogue FBI agent. (ER212-213 at 855:22-856:12.)

Captain Carey, who oversaw the unit responsible for investigating and

prosecuting corrupt LASD personnel, ordered Mr. Sextons assigned unit

Operation Safe Jails to guard and move Inmate Brown during the investigation to

keep him safe. (ER214-241 at 859-886:1.) Mr. Sexton participated in the

guarding of Mr. Brown and assisted in his movement within the Los Angeles

County Jails but did not participate in the investigation into the facts and

circumstances surrounding the contraband phone. (Id.)

Not knowing the full facts, Captain Carey also, via co-defendants

Lieutenants Leavins and Thompson, ordered Mr. Sexton to change Inmate

Browns name in LASDs computer tracking system in order to keep potentially

corrupt and dangerous LASD employees from finding him and potentially injuring

him. (ER245-246 at 890:18-891:9.) The process to change an inmates name for

his or her protection is one that other, more experienced, deputies have used

numerous times.1 Mr. Sexton was also ordered to guard Inmate Browns cell and

1 Mr. Sextons expert, Detective Mark Lillienfeld, a homicide detective with more


-12-

ultimately transport him to state prison. (ER181-182 at 507:13-508:7; ER193 at

705:13-17; ER247-248 at 892:24-893:16.)

B. Between August 23, 2011 and September 12, 2011 When Inmate Brown is Re-Booked Under His Name, the FBI Does Not Request to Interview or Meet With Him

Throughout the trial, the Government argued that Inmate Brown was

somehow critical to its investigation of civil rights abuses within the County jails

as he purportedly had first-hand information regarding such abuses. Yet, neither

the FBI nor the United States Attorneys Office (USAO) made any effort to

interview or meet with him during the time the LASD allegedly hid him.

By way of background, on August 23, 2011, and unknown to Mr. Sexton,

the FBI conducted an interview of Inmate Brown at Mens Central Jail. (ER172-

173 at 294:19-295:14.) An LASD Sergeant halted this interview, and LASD

Captain Carey specifically requested that the FBI agents wait for him to discuss

their interview. (ER176 at 389:11-18.) Despite this request, the FBI agents left

Mens Central Jail on August 23, 2011 without meeting Captain Carey. (ER177 at

390:19-24.) After this date, the FBI never again asked for permission to return to

interview Inmate Brown. (ER178 at 405:5-7; ER185 at 693:12-17.) The lead

than 30 years of experience, testified that jail officials routinely move inmates within their system and change their names in an effort to ensure inmate safety. (ER250-252 at 1020:23-1022:25.) Having moved inmates and changed their names around 500 times, Detective Lillienfeld further testified that the LASDs movement of Inmate Brown was routine. (ER253-254 at 1029:18-1030:3.)


-13-

agent visited Inmate Brown in state prison several weeks later and conducted an

interview. (ER195 at 707:6-8.) She did not present her notes from that interview

to the Grand Jury. (ER196-197 at 714:22-715:9.) Inmate Brown testified briefly

before the Grand Jury almost a year after the events detailed in the Indictment.

(ER175 at 372:10-13.)

Despite having specific LASD deputies assigned to work with the FBI in

joint law enforcement task forces, the FBI never reached out to those deputies to

attempt to contact Inmate Brown through alternate channels. (ER186 at 698:4-15.)

Even during meetings between the USAO and LASD leadership, the Government

never asked the LASD to provide Inmate Brown to the FBI. (ER204 at 813:8-23;

see also ER242-243 at 887:23-888:1.)

C. The USAO and FBI Halted the Investigation into Inmate Brown

Instead of attempting to interview Inmate Brown again while he was in jail,

the FBI reached out to the USAO for assistance. The USAO applied for a writ of

habeas corpus ad testificandum on August 25, 2011 seeking the production of

Inmate Brown for testimony before the Grand Jury on September 7, 2011 at 9:30

a.m. (ER257.) The application informed the District Court issuing the writ that

the USAO had contacted the LASD regarding Inmate Browns availability; that

was untrue. (ER199 at 805:5-22.)


-14-

By August 29, 2011, just four days after applying for the writ and more than

a week before Inmate Brown was scheduled to appear before the Grand Jury,

Sheriff Lee Baca met with United States Attorney Andr Birotte to complain about

the FBIs tactics in inserting a cell phone into the jails. (ER200-203 at 806:20-

809:2.) Sheriff Baca was upset. Following that high-level meeting, the USAO

essentially halted the investigation into the LASD and the lead Agent on the case

admitted that there was a meeting and there was discussions about holding off on

some subpoenas and stuff. (ER190 at 702:17-23.) FBI Agents on the matter were

then told by the Supervisory Special Agent that they could not go interview any

Sheriffs Department employees. (ER191 at 703:4-11.) These interviews were

halted because parts of the investigation into LASD were put on hold, and Agents

inferred that they were not supposed to make any visits to LASDs jails. (ER191-

192 at 703:14-704:6.)

Although the Government argued that lower officers, like Mr. Sextons,

compliance with the orders from senior LASD officials prevented the Grand Jurys

writ of habeas corpus from being executed upon Inmate Brown, and therefore

obstructed justice (see ER480-507), FBI Supervisory Special Agent (SSA)

Carlos Narro told a different story. SSA Narro supervised the FBI investigation

into the jails and the undercover operation involving Inmate Brown. During Mr.


-15-

Sextons first trial, he testified that during the time of Mr. Sextons conduct, the

Grand Jury investigation had actually stopped and the writ had been withdrawn:2

Q: And during that conversation [on August 29, 2011], did Mr. Middleton3 tell you that the writ for Anthony Brown had been withdrawn?

A: That was my understanding.

* * *

Q: So Mr. Middleton told you that the writ had been withdrawn until there would be a meeting between the ADIC [Assistant Director In Charge] and Sheriff Baca at a later date.

A: That was my understanding. The investigation as a whole was going to be halted. The most major aspects of the investigation.

(ER354 at 797:4-19.)

Q: Mr. Middleton informed you that the investigation itself would be halted until theres a meeting between Sheriff Baca and the ADIC?

A: With respect to interviewing any further L.A.S.D. employees, with respect to not pursuing the production of documents after we had served subpoenas on the 25th of August, with respect to the writ also being halted those were the issues that were going to be stopped.

(ER355 at 798:6-13.)

2 As will be discussed below, the Government successfully sought the exclusion of this evidence during Mr. Sextons second trial. Mr. Sexton claimed this exclusion was erroneous and prejudicial. See infra section IX.D. 3 AUSA Middleton is the Chief of the Public Corruption and Civil Rights Section and was the AUSA supervising this investigation.


-16-

Q: And do you think that delay between the time you got that call from Mr. Middleton and the time that the investigation moved forward again impeded your investigation in any way?

A: Well, I had some concerns about it.

Q: Do you believe it impeded your investigation?

A: Dont know. It could have. Thats just based on previous experiences in previous public corruption cases.

Q: As you sit here today, do you have any information that would lead you to believe that that delay impeded your investigation?

A: Not that I know of.

(ER356 at 799:12-22.) (emphasis added)

In summary, the FBI agent supervising this case testified in Mr. Sextons

first trial that the Grand Jury investigation was halted by the USAO after August

29, 2011, and the writ ordering the LASD to produce Inmate Brown to the Grand

Jury on September 7, 2011, had been withdrawn.

D. The Government Begins an Investigation into LASDs Response to The Contraband Phone and Fails To Provide Mr. Sexton with a Target Notice

It wasnt until many months after the investigation began into the civil rights

abuses in the jails that the Government began to investigate LASDs alleged efforts

to conceal Inmate Brown. (ER198 at 721:6-24.) Mr. Sexton became an important

witness to the Government as they sought to understand how LASD responded to

the FBIs secret insertion of a cell phone into the LA County jail. (Id.)


-17-

That investigation, as all investigations conducted by the Department of

Justice, should have been conducted in accordance with the United States

Attorneys Manual (USAM). The USAM is a quick and ready reference for

United States Attorneys, Assistant United States Attorneys, and Department

attorneys responsible for the prosecution of violations of federal law. (ER470.)

The USAM is intended to be comprehensive, and when there is a conflict with

earlier Department of Justice Statements, with the sole exception of Attorney

General Statements, the USAM control[s]. (ER472.) As a comprehensive

document, the USAM reflects an executive branch decision that like individuals

should be afforded the same protections when facing investigations.

Section 9-11.151 of the USAM defines a target as a person as to whom

the prosecutor or the grand jury has substantial evidence linking him or her to the

commission of a crime and who, in the judgment of the prosecutor, is a putative

defendant. (ER476.) The USAM provides that

Because the potential for misunderstanding is great, before a known target . . . is subpoenaed to testify before the grand jury about his or her involvement in the crime under investigation, an effort should be made to secure the targets voluntary appearance. If a voluntary appearance cannot be obtained, the target should be subpoenaed only after the grand jury and the United States Attorney or the responsible Assistant Attorney General have approved the subpoena.

(ER474.)


-18-

That did not happen here.

After being approached by the FBI and quickly agreeing to cooperate in the

federal investigation, Mr. Sexton met with FBI agents and prosecutors on August

29, 2012. (ER180 at 407:14-24.) Mr. Sexton was given no target warning before

this meeting. (ER458 at 4.) A FBI Special Agent present at that meeting

testified that Mr. Sexton told the Government:

. . . that he took part in the sheriffs departments attempt at hiding Anthony Brown from the FBI. He said because he worked in IRC, Inmate Reception Center, he took part in changing Anthony Browns names. He said that OSJ deputies took shifts guarding Anthony Brown, and Mr. Sexton said they were OSJ deputies were selected because they could, quote, keep their mouth shut. Mr. Sexton said that OSJ deputies viewed the FBI as an adversary and were openly hostile toward the FBI, he also said that OSJ supervisors planned to file charges against Special Agent Leah Marx for her perceived role in smuggling in the cell phone into the jail.

(ER174 at 364:4-16.)

The Government later used these facts when it indicted Mr. Sexton.

(ER480-507.) Yet, the Government gave him no target warning after this meeting

either. (ER458 at 4.) Rather, the Government proceeded to subpoena him and

take his testimony before the Grand Jury regarding another matter unrelated to this

case. (Id.)

That testimony occurred on August 29, 2012. (ER180 at 407:14-24.)

Following that testimony, Mr. Sexton retained counsel. Mr. Sextons counsel,


-19-

Mays Jemison, spoke to the USAO and they advised him that Mr. Sexton was not a

target of their investigation. (ER458 at 4.) Mr. Sexton then proceeded to meet

with the USAO and FBI numerous times. (ER324 at 538:9-12.) With and without

counsel present, Mr. Sexton met with prosecutors and agents, provided copies of

documents procured from LASD records, and offered details regarding his

involvement in every element of the LASD response to the FBIs contraband

cellphone. (ER323 at 537:6-538:15.) He repeated that statement in a second

session with the Grand Jury on November 28, 2012. (ER459 at 6.) The

Government would later use these facts, this testimony, and the documents

Mr. Sexton provided as the basis for indicting him. (ER480-507.) Yet, they gave

him no target warning. Quite the opposite, Mr. Sexton, through his counsel, was

assured he was not a target prior to testifying before the Grand Jury. (ER458-459

at 5.)

It was not until December 11, 2012, after he provided documents, after he

had countless interviews with the FBI, and testified before the Grand Jury twice,

that the Government finally complied with the USAM and provided him with a

target notice. (ER459 at 9.) By that time, it was too late.

E. The Government Indicts Mr. Sexton and Tries Him for Conduct Occurring After August 29, 2011

The Government indicted Mr. Sexton on November 20, 2013 and charged

him with Obstruction of Justice in violation of 18 U.S.C. 1503(a) and Conspiracy


-20-

to Obstruct Justice in violation of 18 U.S.C. 371. (ER480-507.)4

Notwithstanding the Governments admission that the investigation into Inmate

Brown had effectively stopped after August 29, 2011, the Government indicted

Mr. Sexton, claiming that between August 18, 2011 and September 26, 2011,

Mr. Sexton had obstructed justice. (Id.)

Proceeding past various motions, including Mr. Sextons motion to dismiss

the indictment based on the Fair Warning Doctrine, which the District Court

denied (see ER455-456), the case proceeded to a first trial on May 13, 2014.

(ER454.)

At the first trial, the Government introduced significant portions of Mr.

Sextons testimony before the Grand Jury. (ER395-453.) In doing so, the

Government correctly did not deprive the jury of the context of Mr. Sextons

testimony. That full context reflected in many instances that Mr. Sexton was

relying on his superiors orders, (ER330-331 at 708:4-709:8; ER334-335 at

712:18-713:11; ER337-339 at 738:18-740:19), that he may have thought that there

was a potential disagreement between the FBI and the LASD, (ER326 at 697:7-15;

ER328 at 699:9-25), but that this information was received via hearsay, (ER326 at

697:13-15; ER328 at 699:16-18), and that he thought what he was doing was

4 Mr. Sexton was charged in the same indictment as Gregory Thompson, Stephen Leavins, Gerard Smith, Mickey Manzo, Scott Craig, and Maricella Long, but the District Court granted his motion to sever prior to trial. (ER455-456.)


-21-

lawful as reflected in his superiors orders. (ER329 at 707:5-16; ER331-332 at

709:12-710:9; ER334-335 at 712:18-713:11.) Mr. Sextons trial counsel relied on

these caveats extensively in his closing argument to establish that Mr. Sexton did

not have the requisite knowledge to form a corrupt intent. (ER373-374 at 1113:20-

1114:5; ER385-386 at 1125:4-1126:18.)

During the first trial, the jury was also allowed to hear evidence that the

USAO had withdrawn its writ of habeas corpus for Inmate Brown prior to his

scheduled Grand Jury date and otherwise suspended the investigation where his

testimony would have been relevant. (ER353-356 at 796:5-799:22.)

The first jury hung six-to-six, resulting in a mistrial. (ER318.)

F. After The First Jury Hung, The Government Re-Tries Mr. Sexton

The Government decided to retry Mr. Sexton, and the second jury trial

commenced on September 10, 2014. (ER258.)

This time, however, the Government decided to severely limit the evidence.

The Government moved to exclude evidence that the writ had been withdrawn by

the USAO. (ER309-317.) During trial, the Court excluded that evidence.

Likewise, the Government further excerpted the Grand Jury testimony that it

presented to the jury, removing multiple passages that were read at the first trial

passages which Mr. Sextons counsel had invoked in his closing argument.

(ER100-170.) Mr. Sexton objected to this alteration on the grounds that it


-22-

rendered his testimony misleading and incomplete. (See generally ER262-305.)5

The District Court overruled Mr. Sextons objections. (ER67.) As a result, the

following testimony which Mr. Sextons counsel had earlier relied on to argue that

Mr. Sexton based much of his testimony on rumors and speculation and was

personally unaware of the Grand Jury investigation and therefore did not form a

corrupt intent, was kept from the jury in the second trial:

This is our Sheriffs Department in its entirety. Its all about

innuendo and nuance. Compare (ER158 at 60:21-24) with (ER385

at 1125:21-23.) (emphasis added).

There were rumors. Compare (ER104 at 6:38) with (ER386 at

1126:1.) (emphasis added).

[Y]ou know, we as young deputies were speculating, trying to figure

out why that was there in the first place. Why that type of phone was

in there. Compare (ER106 at 8:1-7) with (ER386 at 1126:4-6.)

(emphasis added).

I was not privileged to the entire information of that. I was having

to put it together on my own. Compare (ER106 at 8:13-17) with

(ER386 at 1126:7-8.) (emphasis added).

I had conversations about this with [Deputy] Rathbun and my peers

and just trying to establish what we were doing and why we were

doing it. Compare (ER108 at 10:258-32) with (ER328 at 699:16-18.)

(emphasis added). 5 In an effort to provide context, a redline showing the portions of testimony read into the record at the first trial that the Court excluded in the retrial was provided to the District Court. (ER306-308.)


-23-

Q. Was it discussed as to who had authorized unlimited overtime? A.

Innuendo[.] Compare (ER120 at 22:2-6) with (ER330 at 708:15-16.)

(emphasis added).

Were baby faced in there. Ive been a technical adult for eight years,

so a lieutenant comes and tries to, you know he will sweat different

guys, and by sweat I mean hell challenge why youre there to see

who will give him information. Compare (ER150-151 at 52:28-53:3)

with (ER337-338 at 738:23:739:4.) (emphasis added).

I mean, being a cop is all about judgment. Im not going to detain a

U.S. Attorney at gun point or get in a use of force scenario with an

FBI agent uniformed with a subpoena. Im just not going to do that.

Compare (ER155 at 57:28-36) with (ER342 at 743:9-13.) (emphasis

added).

This is our Sheriffs Department in its entirety. Its all about

innuendo and nuance, and you either pick up what people are putting

down or youre not participating. Compare (ER158 at 60:21-27) with

(ER345 at 746:2-5.) (emphasis added).

Over objection, the Government also sought and received the following

mixed-motive instruction:

The government need not prove that the defendants sole or even primary purpose was to obstruct justice, so long as the government proves beyond a reasonable doubt that one of the defendants purposes was to obstruct justice. The defendants purpose of obstructing justice must be more than merely incidental.


-24-

(ER33.) Mr. Sexton argued that the instruction failed to capture the elements of

the claim but the instruction was given as requested by the Government. (ER255-

256 at 1049:22-1050:15; ER58-59.)

This timely appeal followed. (ER1-6.) The Court deemed this matter

related to the consolidated appeals in case numbers 14-50440, 14-50441, 14-

50442, 14-50446, 14-50449, and 14-50455 and ordered briefing and hearing on

this case to proceed with the consolidated appeals of the other defendants. (See

Appellate Docket Nos. 13, 15.)


-25-

VIII. SUMMARY OF THE ARGUMENT

Mr. Sextons conviction resulted from an overzealous application of Section

1503 and related conspiracy charges. His conviction resulted from a turf war and

is the byproduct of the Federal Governments needlessly aggressive response to

Los Angeles County Sheriff Lee Bacas lawful local law enforcement investigation

into what he indicated was unlawful conduct by the FBI. Mr. Sexton followed his

superior officers orders, thought they were lawful, thought they were part of (not

obstructing) proper investigations, and faces time in a federal prison as a result.

This is unfair and should not stand. We should treat our local law enforcement

officials better, by refusing to allow them to become pawns in battles of law

enforcement supremacy.

Members of this Court have already recognized that [s]tretched to its limits,

section 1503 poses a significant hazard for everyone involved in our system of

justice, because so much of what the adversary process calls for could be construed

as obstruction. United States v. Bonds, No. 11-10669, 2015 U.S. App. LEXIS

6708, at *5 (9th Cir. Apr. 22, 2015) (Kozinski, J., concurring). This case illustrates

the perils of this hazard. Mr. Sexton, a junior deputy whose involvement was

primarily transporting and guarding an inmate he was told was part of possible

criminal activity by the FBI, was convicted only after a first trialon a full


-26-

recordled to a hung jury where six reasonable jurors concluded that the

Government had failed to meet its burden beyond a reasonable doubt.

In a second trial, the Government continued its turf war by limiting the

evidence the jury could hear. On an abbreviated record, a second jury convicted

Mr. Sexton. This Court should not allow the resulting conviction to stand. It

should vacate the judgment and reverse the District Courts Orders for any number

of reasons.

First, the mixed motive instruction has no basis in Circuit authority and

operated to confuse the jury regarding the requisite intent. Section 1503s use of

the word corrupt suggests that the defendants motive to obstruct justice must be

a substantial one. The District Court in this case instructed that the motive need

only be more than merely incidental. (ER33.) This Courts prior approval of

similar instructions has generally been in cases where an element of the crime

requires a specific purpose. Cf. United States v. Banks, 514 F.3d 959, 969-70 (9th

Cir. 2008) (construing the purpose element of 18 U.S.C. 1959 to require that it

be a substantial purpose, and limiting it to cases where it is one of the

defendants general purposes or dominant purposes). Moreover, this Court has

not previously approved language similar to more than merely incidental.

This instruction embraces a fundamental issue in this case: whether Mr.

Sexton was entitled to rely upon his good faith belief that guarding Inmate Brown


-27-

during an LASD investigation was lawful. The Supreme Court has held that, in a

civil context, LASD deputies are entitled to qualified immunity when conducting

reasonable investigations with the approval of their supervisors. Messerschmidt v.

Millender, 132 S. Ct. 1235, 1239 (2012) (finding that LASD deputies were entitled

to qualified immunity in Section 1983 action alleging lack of probable cause for a

search warrant in part because their supervisors had approved the warrant).

Given this authority, and the hazardous manner in which the Government

has applied Section 1503, the doctrine of fair warning should preclude conviction

for Obstruction or for Conspiracy. United States v. Lanier, 520 U.S. 259, 265

(1997) (holding that under the Fair Warning Doctrine state officers are immune

from prosecution for acts they could not reasonably understand to be proscribed).

The mixed motive instruction further complicated this issue by allowing the jury to

convict even if Mr. Sexton had a good faith belief that his actions were legally

authorized.

Second, the District Court erred in allowing significant editing of Mr.

Sextons Grand Jury testimony which rendered it inaccurate. Rule 106 precludes

editing of a defendants statement in a manner that renders it misleading. Fed. R.

Evid. 106; United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); see also

United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1159-60 (C.D. Cal. 2008).

In this case, the Government edited Mr. Sextons testimony in an effort to remove


-28-

all references to his lack of personal knowledge regarding the criminal conduct at

issue. This made the testimony misleading by suggesting that Mr. Sexton had the

requisite knowledge regarding the extent and nature of the Grand Jury

investigation to form the necessary corrupt intent, when in fact Mr. Sextons

complete testimony made clear that he was guessing and basing his testimony on

rumor. The more complete picture shows a more junior officer following

commands he believed to be lawful.

Third, the District Court erred in failing to suppress Mr. Sextons Grand Jury

testimony as a result of the Governments violation of explicit Department of

Justice Policy in obtaining that testimony. The Government knew that Mr. Sexton

was a target of the Grand Jurys investigation and nonetheless subpoenaed him to

testify without advising him that he was a target in direct violation of the USAM.

While this Courts supervisory authority may be limited, the Grand Jury operates

under the power of the Court, and there must be a remedy for this blatant refusal to

abide by policies and procedures that were enacted to protect the rights of the

accused.

Fourth, the District Courts exclusion of evidence that the writ of habeas

corpus had been withdrawn prior to Inmate Browns scheduled Grand Jury date

impermissibly lessened the Governments burden to prove that the obstruction at

issue was material. [T]he government must prove beyond a reasonable doubt that


-29-

the charged conduct was capable of influencing a decisionmaking person or

entityfor example, by causing it to cease its investigation, pursue different

avenues of inquiry or reach a different outcome. Bonds, 2015 U.S. App. LEXIS

6708, at *8 (Kozinski, J., concurring). The District Court excluded testimony that

the writ of habeas corpus for Inmate Brown was withdrawn before he was due to

appear and that any delay in accessing Inmate Brown for a few weeks had no effect

on the Grand Jurys investigation. The excluded evidence establishes that the

obstruction could not possibly have influenced the Grand Jury and was therefore

not material in nature and not obstruction under the law.

Any one of these reasons should be enough to vacate the judgment and

reverse the District Court. Combined, and coupled with the unfairness of the turf

war at the heart of this case, the grounds for reversal are overwhelming.


-30-

IX. ARGUMENT

Mr. Sextons conviction should be reversed on the law and on fundamental

fairness grounds. Exculpatory evidence was excluded from the jury when it should

have been allowed. Inculpatory evidence was put before the jury when it should

not have been, and would not have been for similarly situated defendants. This

inculpatory evidence was testimony from Mr. Sexton himself that was collected in

the face of an explicit prohibition in the Department of Justices own manual

against forcing targets of an investigation to testify without adequate warning. As

the facts reflect, Mr. Sexton was the victim of a turf war between two massive law

enforcement agencies.

As this Court knows, having related this case to United States v. Smith, et

al., Ninth Circuit Case No. 14-50440 (and consolidated appeals), the Federal

Government prosecuted six other members of the LASD in an attempt to send a

message regarding the superiority of Federal Government investigations over those

conducted by local law enforcement agencies. One issue in those appeals and this

onethe giving of a mixed motive instructionoverlap. The mixed motive

instruction was contrary to law and is grounds for reversal. Moreover, it highlights

a fundamental issue underlying all seven convictions: can local law enforcement

officers be convicted for participating in an investigation that is part of their job


-31-

description and that appears on its face to be lawfully authorized by their

superiors?

In addition, Mr. Sexton was the most junior deputy to be tried and unique

errors were committed in his re-trial that warrant reversal. Specifically, the

Government should not have been allowed to unfairly edit Mr. Sextons Grand

Jury testimony; the Government should not have obtained that sworn testimony in

the first place without a target warning; and the District Court should not have

excluded evidence regarding the materiality of the obstruction at issue.

A. The District Court Erred In Giving a Mixed Motive Instruction And In Denying Mr. Sextons Motion To Dismiss the Indictment

Can a defendant act with a corrupt intent if he is acting pursuant to a good

faith belief that his actions are lawful, but harbors some more than incidental ill-

will towards the Federal Government? Common sense, regular cannons of

construction, and the Fair Warning Doctrine suggest the answer is no; the District

Court disagreed. This Court should reverse.

1. The Fair Warning Doctrine Should Have Led to Dismissal of the Indictment

As reflected below, Mr. Sexton mainly argues this point through the lens of

the mixed motive instruction. He also moved, however, to dismiss the

Indictment on fair warning grounds, which the District Court denied. (ER522 at

Docket No. 221.) Because the fair warning grounds supported Mr. Sextons


-32-

motion to dismiss and also support his objection to the mixed motive instruction

(the fair warning argument being one of many reasons the instruction was

erroneous), Mr. Sexton argues the two points together. Though Mr. Sexton

focuses this argument on the instruction, the District Courts denial of his motion

to dismiss was also error and he seeks reversal of that error here, which would

affect this Courts remedy. See United States v. Caruto, 663 F.3d 394, 397 (9th

Cir. 2011) (We review de novo the district courts denial of Carutos motion to

dismiss the indictment.). To the degree the Court agrees that the Fair Warning

Doctrine renders the instruction invalid, the remedy should not be reversal and

retrial but reversal and dismissal of the Indictment.

2. An Instruction Is Improper Where It Fails to State the Necessary Elements of the Charged Crime

To confirm the law, reversal is appropriate where an instruction failed to

accurately describe the elements of the charged crime. United States v. Liu, 731

F.3d 982, 987 (9th Cir. 2013) (citation omitted). An error in describing an

element of the offense in a jury instruction is harmless only if it is clear beyond a

reasonable doubt that a rational jury would have found the defendant guilty absent

the error. United States v. Munguia, 704 F.3d 596, 603-04 (9th Cir. 2012) (citing

Neder v. United States, 527 U.S. 1, 18 (1999)). In this case, the jury was not

properly instructed on the elements of either the Section 1503(a) Obstruction count

or the Section 371 Conspiracy Count (which depended entirely on Section 1503


-33-

culpability). Likewise, there is nothing to suggest that the jury would have

convicted Mr. Sexton anyways.

3. The Law Requires a Defendant to Act with a Predominantly Corrupt Purpose

In order to sustain a conviction for violation of Section 1503(a), the

Government must prove beyond a reasonable doubt that the defendant corruptly,

that is, with the intent to obstruct justice, obstructed a grand jury investigation.

United States v. Thomas, 612 F.3d 1107, 1129 (9th Cir. 2010); see also United

States v. Rasheed, 663 F.2d 843, 851-52 (9th Cir. 1981). Additionally, the

Government must prove that the nature of the obstruction was material. Id.

Section 371 makes it a crime [i]f two or more persons conspire either to commit

any offense against the United States, or to defraud the United States, or any

agency thereof in any manner or for any purpose, and one or more of such persons

do any act to effect the object of the conspiracy. 18 U.S.C. 371; United States

v. Rodman, 776 F.3d at 642. In this case, the charged object of the conspiracy was

an attempt to obstruct justice in violation of Section 1503.

As the elements of the offense reflect, obstruction is a specific intent crime.

Indeed, [s]pecific intent to impede the administration of justice is an essential

element of the offense. United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971);

see also United States v. Ching Tang Lo, 447 F.3d 1212, 1226 (9th Cir. 2006) (to

establish a conspiracy the Government must prove the intent to commit the


-34-

underlying crime.). Not only that, both crimes require the defendant act with a

corrupt purpose. Thomas, 612 F.3d at 1129. While the District Court here did

instruct the jury that Mr. Sexton must act with a corrupt purpose, which it

defined to mean with the purpose of obstructing justice based on knowledge of

a pending federal grand jury investigation, (see ER32), it counteracted that

instruction by immediately thereafter defining away what corrupt means. The

District Court lowered the bar of motivation the Government was required to prove

to a trifling amount, effectively eliminating Mr. Sextons ability to rely on his

superiors orders.

Specifically, the District Court gave the following mixed motive instruction,

which Mr. Sexton objected to, (see ER255-256 at 1049:22-1050:15; ER58-59):

One element that the government must prove beyond a reasonable doubt with respect to the conspiracy and obstruction of justice charges is that the defendant had the unlawful intent to obstruct a grand jury investigation. Evidence that the defendant relied, in good faith, on the orders that he received from his superior officers, and that he reasonably and objectively believed those orders to be lawful, would be inconsistent with such an unlawful intent. However, if you find that the defendant had the intent required to commit a charged crime; the defendants conduct is not excused by a claim or evidence that the defendant might have been following orders of his superiors. The government need not prove that defendants sole or even primary purpose was to obstruct justice, so long as


-35-

the government proves beyond a reasonable doubt that one of the defendants purposes was to obstruct justice. The defendants purpose of obstructing justice must be more than merely incidental.

(ER33.) As reflected in the text, this mixed motive instruction lessened the

Governments burden with respect to proving Mr. Sextons specific intent by

allowing a conviction based on an intent that was more than merely incidental,

as opposed to general, dominant, or substantial. It also said that Mr. Sexton could

be convicted despite his superiors orders if he had the intent to commit the

charged crimewhich as defined, meant knowledge of a pending grand jury

investigation and an intent to impede that investigationand convicted where that

motivation was substantially a minor cause of his conduct, so long as that

substantial minority was more than merely incidental.

This was error. There is no Ninth Circuit authority supporting a mixed

motive instruction in an obstruction case under 18 U.S.C. 1503 or a conspiracy

case in which obstruction is the object of the conspiracyand particularly not for a

case like this one. This Court has, however, explained that [t]he word corrupt

in [Section 1503] means for an evil or wicked purpose. Ryan, 455 F.2d at 734.

While the Court subsequently evaluated the meaning of the term corruptly with

regard to evaluating types of conduct, holding that it meant with the purpose of

obstructing justice, the Court has yet to consider whether this purpose must be

the primary or dominant purpose. See Rasheed, 663 F.2d at 852. Section 1503s


-36-

use of the word corrupt suggests that the defendants motive to obstruct justice

must be a substantial one.

While not these charges, this Circuits analysis of mixed motive instructions

in other specific purpose cases supports the conclusion that the District Court erred

here. In such cases, the Government is required to prove that the purpose at issue

was one of the general purposes or dominant purposes, or sometimes even the

primary or principal purpose. See, e.g., United States v. Banks, 514 F.3d 959,

969-70 (9th Cir. 2008) (considering specific purpose requirement under the

VICAR statute); United States v. Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011)

(examining the type and degree of purpose required conviction of 21 U.S.C.

856(a)(1).); United States v. Mancuso, 718 F.3d 780, 794 (9th Cir. 2013) (same).

For example, in United States v. Banks, the Court considered a mixed motive

instruction in the context of the VICAR statute, 18 U.S.C. 1959. 514 F.3d at

969-970. The defendant was arrested for attempting to kill a rival gang member.

Id. at 963. The district court gave a VICAR instruction indicating that conviction

was appropriate if the act was undertaken for the purpose of gaining entrance to

or maintaining or increasing position in a gang. Id. at 964. This Court held that

the instruction was erroneous because it permitted the jury to convict Banks on

the VICAR counts even if it found that his battle with Gilmore was generally

motivated by personal animosity and by a desire to regain the respect and affection


-37-

of his girlfriend, so long as the jury also found some incidental purpose to maintain

his position in the gang, as opposed to the defendants general purpose which

this Court concluded needed to be considered. Id. at 969.

This Court has taken a similar approach with other specific purpose criminal

statutes. Shetler, 665 F.3d at 1162 (examining the type and degree of purpose

required conviction of 21 U.S.C. 856(a)(1)); Mancuso, 718 F.3d at 794 (same).

Taken together, these cases reflect that where the charged crime requires

something specific, that specificity must be dominant. Indeed, to suggest that

something must be done corruptly, suggests by its very nature that the whole of a

defendants conduct should be considered for its overall thrust. Cf. Arthur

Andersen LLP v. United States, 544 U.S. 696, 705 (2005) (Corrupt and

corruptly are normally associated with wrongful, immoral, depraved, or evil.).

Otherwise, as happens here, a state law enforcement official who believes that his

conduct is reasonably and lawfully part of a criminal investigation into what he

reasonably believes is unlawful conduct by federal officials (as his superiors told

him as such) can be held liable for a federal crime at the same time he is acting in

belief that he is furthering a lawful state investigation into the legality of the those

same federal officials. (See ER214-241 at 859-886:1.)

The Governments and the District Courts reading would always put a

junior law enforcement at risk of federal prosecution for obstruction when he is


-38-

aware of a turf war between competing law enforcement agencies and their

competing investigational priorities. This error was not harmless. An instructional

error in describing an element of the offense in a jury instruction is harmless only

if it is clear beyond a reasonable doubt that a rational jury would have found the

defendant guilty absent the error. Munguia, 704 F.3d at 603-04 (citation omitted).

The District Courts error in this case was a fundamental one in that it lessened the

Governments burden to establish the requisite mens rea. Thus it cannot be said

that a rational jury would reach the same result absent the error. This Court should

not sanction that outcome and nothing in this Courts authority suggests otherwise.

4. Both the Fair Warning Doctrine and the Rule of Lenity Shows the Error in the District Courts Instruction

Further, any ambiguity in the two charged offenses should have been

resolved in Mr. Sextons favor under the Fair Warning Doctrine and under the rule

of lenity. Mr. Sexton believed that he was participating in a lawful local law

enforcement investigation and the Courts mixed motive instruction (as well as

its denial of his motion to dismiss) gave the jury the ability to convict him without

his receiving fair warning and denying him the lenity the law affords him.

a. Lanier, and Like Cases Support Reversal Under the Fair Warning Doctrine

The background law on fair warning comes from United States v. Lanier,

520 U.S. 259 (1997). There, the court evaluated a state judges claim of immunity


-39-

from prosecution under 18 U.S.C. 242 for violating the constitutional rights of

five women by assaulting them sexually while Lanier served as a state judge. Id.

at 261. At issue was whether the judge had fair warning that his actions could be

prosecuted under a vague criminal statute. Id. at 265. In holding that the contours

of the criminal statute had to be clearly established in order to prosecute the

judge, the Court held that the bounds of the Fair Warning Doctrine were

coextensive with qualified immunity in the civil context noting that:

[T]he object of the clearly established immunity standard is not different from that of fair warning as it relates to law made specific for the purpose of validly applying [a criminal statute]. The fact that one has a civil and the other a criminal law role is of no significance; both serve the same objective, and in effect the qualified immunity test is simply the adaptation of the fair warning standard to give officials (and, ultimately, governments) the same protection from civil liability and its consequences that individuals have traditionally possessed in the face of vague criminal statutes. To require something clearer than clearly established would, then, call for something beyond fair warning.

Id. at 270-71.

Lanier suggests that where an individual does not have fair warning that a

statute will construed to cover his conduct, he cannot be held criminally liable

under that statute. This Court has gone on to explain that [t]he touchstone of

this question is whether the statute, either standing alone or as construed, made it

reasonably clear at the relevant time that the defendants conduct was criminal.


-40-

United States v. Thompson, 728 F.3d 1011, 1020 (9th Cir. 2013) (emphasis added)

(quoting Lanier, 520 U.S. at 267).

Thus, where the Government comes forward with no other case where the

facts alleged were prosecuted in the way Government claims (or construes a

criminal statute) a fair warning argument will lie. Thompson, 728 F.3d at 1020

(reversing conviction). District Courts in this Circuit have likewise applied the

fair warning doctrine when criminal statutes have been applied in a novel way.

United States v. Saathoff, 708 F. Supp. 2d 1020, 1036-37 (S.D. Cal. 2010)

(dismissing indictment as as applied to these defendants because of the novelty

of bringing a dishonest services charge against municipal officials for considering

and voting on municipal proposals initiated by their city employer . . . and the fact

that it is a criminal statute which fails to give fair warning).

Applied in this context, the Fair Warning Doctrine should have prevented

the District Court from giving the mixed motive instruction and should have led to

the dismissal of the charges much earlier. The Government cites to no in-Circuit

authority where a junior state law enforcement officer has been convicted for

obstruction and for conspiracy for following his superiors orders with respect to

possible wrongful conduct by the FBI, nor does it cite a single in-Circuit case

where a mixed instruction was given in circumstances similar to the ones here.6

6 The Government did cite authority below where mixed motive instructions given


-41-

To the contrary, members of this Court have recognized that obstruction statutes,

when stretched, as they were here, pose[] a significant hazard for everyone

involved in our system of justice . . . . United States v. Bonds, No. 11-10669,

2015 U.S. App. LEXIS 6708, at *5 (9th Cir. Apr. 22, 2015) (Kozinski, J.,

concurring). This Court should reverse.

Indeed reversal would be consistent with what the Supreme Court has done

in the civil context, which Lanier instructs is a guidepost. There, the Supreme

Court jurisprudence has allowed local law enforcement officials to rely upon the

validity of orders received from their superiors to defeat claims of civil liability.

The illustrative case is Messerschmidt v. Millender, 132 S. Ct. 1235 (2012),

a case in which the Supreme Court considered the qualified immunity of an LASD

deputy in the civil context is instructive here. The plaintiff in Messerschmidt

alleged a Section 1983 claim based on an unreasonable search in violation of the

Fourth Amendment, contending that LASD deputies lacked probable cause to

obtain the search warrants at issue. Id. at 1241.

After both the district court and an en banc panel of the Ninth Circuit denied

qualified immunity, the Court reversed, holding that the deputies acted reasonably

in out-of-circuit obstruction cases, but none of those cases involved facts like this one. (See ER58-59.) For example, the Government relied upon United States v. LaRouche Campaign, 695 F. Supp. 1265 (D. Mass 1988), a case in which the court declined to resolve the issue of whether a mixed motive instruction was appropriate.


-42-

in requesting and executing the search warrant. Id. at 1246. Specifically, the

Court held that qualified immunity allowed the LASD to make reasonable but

mistaken judgments, and protects all but the plainly incompetent or those who

knowingly violate the law. Id. at 1244 (citations omitted). Important to this case,

the Court further noted that the fact that the officers sought and obtained approval

of the warrant application from a superior and a deputy district attorney before

submitting it to the magistrate provides further support for the conclusion that an

officer could reasonably have believed that the scope of the warrant was supported

by probable cause. Id. at 1249.

In this case, there was ample evidence that the LASD was conducting what

appeared to be a lawful investigation at the direction of the Sheriff. (See ER214-

241.) To allow the mixed-motive instruction here was to allow liability despite a

dominant reliance on the lawfulness of Mr. Sextons superiors orders and to make

him liable for acts, which under the law, he had no advance knowledge would

render him subject to criminal liability. The instruction should never have been

given and his motion to dismiss should have been granted.

b. The Lenity Doctrine Supports Reversal

Were that not enough, as both Sections 1503 and 371 are criminal statutes

any question of whether the statutes should be read to allow a mixed-motive

instruction which as the discussion above reflects, is doubtfulthe rule of lenity


-43-

should have worked in Mr. Sextons favor to preclude the result. As the Supreme

Court has explained, the rule of lenity requires ambiguous criminal laws to be

interpreted in favor of the defendants subjected to them. United States v. Santos,

553 U.S. 507, 514 (2008). In other words, penal statutes are to be construed

strictly, and that one is not to be subjected to a penalty unless the words of the

statute plainly impose it. United States v. Karaouni, 379 F.3d 1139, 1143 (9th

Cir. 2004) (quoting United States v. Campos-Serrano, 404 U.S. 293, 297 (1971)).

Thus, for example, in United States v. Liu, 731 F.3d 982 (9th Cir. 2013), this

Court held that willfully infringe, within the context of Copyright Act, connotes

a voluntary, intentional violation of a known legal duty. Id. at 990 (citations

omitted). The Court rejected a lesser reading that did not require knowledge of the

unlawfulness of the defendants conduct, reasoning that courts normally resolve

any doubt in favor of the defendant[,] and that the modern proliferation of

statutes and regulations sometimes ma[kes] it difficult for the average citizen to

know and comprehend the extent of the duties and obligations imposed by the . . .

laws. Id. at 989. Willfully infringe had to be given a meaning that reflected

the gravity of the act the statute intended to convey and lenity, in the face of

ambiguity, required a reading that favored the defendant.

So too here. Though Mr. Sexton believes the District Court erred in giving

the mixed motive instruction under the law discussed above, were there any


-44-

question as to that law, the District Court should have applied lenity and read the

statutes to require that obstruction at the very least be the dominant purpose. The

failure to do so should be grounds for reversal.

B. The District Court Erred in Allowing the Government to Unfairly Edit Mr. Sextons Grand Jury Testimony

While the mixed-motive argument addressed above overlaps with arguments

that other Defendants are making in the related consolidated appeal, the

Governments conduct in Mr. Sextons trial provides unique basis for reversing his

conviction.

The cornerstone of the Governments case (in both trials) was Mr. Sextons

own Grand Jury testimony which the Government referred to as a confession.

After introducing a relatively complete version of Mr. Sextons testimony in the

first trial, (see ER395-453), the Government opted, over Mr. Sextons objection, to

present a heavily edited version of the testimony in the second trial. (ER100-170.)

Not coincidentally, the Government opted to edit out essentially all of the

testimony relied upon by Mr. Sexton in his closing argument during the first trial.

During the first trial, Mr. Sexton relied on portions of his Grand Jury testimony to

establish and to argue that he did not have the requisite knowledge of the pending

investigation in order to obstruct it. (ER385-386 at 1125:4-1126:18.) Much of that

testimony was edited out by the Government in the second trial. (ER100-170.)


-45-

Specifically, the Government was permitted to remove all references to (1)

the fact that Appellant was acting on orders from his superiors including

Undersheriff Paul Tanaka and Sheriff Lee Baca; (2) how Mr. Sexton came to

know the information the Government must prove he had knowledge of; and, (3)

facts stated in Appellants testimony that are demonstrably false and therefore

rendered Mr. Sextons Grand Jury testimony unreliable. (ER67.) Not so

coincidentally, these edits tracked, almost exclusively, the portions of the

testimony relied upon by Appellant in his first trial in arguing that the Grand Jury

testimony was based on conjecture and gossip. (ER385-386 at 1125:4-1126:18.)

This switch, from a full record to a partial one, violated the Rule of

Completeness established in Federal Rule of Evidence 106, which provides: If a

party introduces all or part of a writing or recorded statement, an adverse party

may require the introduction, at that time, of any other partor any other writing

or recorded statementthat in fairness ought to be considered at the same time.

Fed. R. Evid. 106. Rule 106 precludes the admission of a misleadingly-tailored

snippet of a statement. United States v. Collicott, 92 F.3d 973, 983 (9th Cir.

1996). Admission of additional portions of a statement is therefore appropriate to

correct a misleading impression of a prior statement created by taking [the

defendants] comments out of context. Id.


-46-

United States v. Castro-Cabrera, 534 F. Supp. 2d 1156 (C.D. Cal. 2008), a

case in which the court required the introduction of a defendants entire statement,

is illustrative of the effect of the Governments (and respectfully the District

Courts) error here. In Castro-Cabrera, the defendant was charged with illegal

reentry into the United States and the Government moved, in limine, for the

admission of a portion of the defendants statement indicating that he thought he

was a Mexican citizen while attempting to exclude the portion of his statement in

which he indicated that he may have believed he was an American citizen. Id. at

1159-60.

The Court found that the Rule of Completeness required the admission of

the statement in its entirety or not at all. Id. at 1160. The court reasoned that

reading the statements in context results in one set of possible meanings, whereas

reading the [edited] statement in isolation tends to create a different meaning.

There is a serious risk that presentation of only the latter answer, separate and apart

from the one before it, would distort, misrepresent, or confuse the meaning of the

Defendants statement. Id.

Here, reading Mr. Sextons full commentsoffered at the first trialit is

evident that Mr. Sexton believed he was following orders issued by Sheriff Baca

and Undersheriff Tanaka. (ER330-331 at 708:4-709:8; ER334-335 at 712:18-

713:11.) It is likewise evident based on numerous statements Mr. Sexton made


-47-

before the Grand Jury that his information was based largely on unsubstantiated

rumors and innuendothe picture from the first trial was of an individual

following orders he believed to be lawful, but having heard rumors of a general

power battle. (ER328 at 699:16-18; ER330 at 708:15-16; ER345 at 746:2-5;

ER348 at 749:7-8; ER385 at 1125:21-23; ER386 at 1126:1; ER386 at 1126:4-8.)

Eliminating the testimony where Mr. Sexton confirmed his reliance on rumors and

guesses, and then arguing that Mr. Sexton had actual and personal knowledge of

certain facts created a very different picture. (Id.) It suggested that Mr. Sexton

knew his conduct was wrongful when his full testimony very much called that into

question. The Rule of Completeness should have precluded this distorted picture

and the Government should never have asked for it. Cf. United States v. Kojayan,

8 F.3d 1315, 1323 (9th Cir. 1993) (The prosecutors job isnt just to win, but to

win fairly, staying well within the rules.).

It is no answer, as the District Court suggested, that Mr. Sexton could have

testified on his own behalf to cure the Governments misleading editing. (ER260-

261 at 33:13-34:4.) The Seventh Circuit in United State

sexton opening brief_9th circuit appeal

Documents