7-24-17 - Baca Appeal To 9th On Bail

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Case: 17-50192, 07/24/2017, ID: 10519114, DktEntry: 2-1, Page 1 of 27
No. 17-50192
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEROY BACA,
Defendant-Appellant.
Appeal from the United States District Court

for the Central District of California
Honorable Percy Anderson, District Judge Presiding
MOTION FOR BAIL PENDING APPEAL
BENJAMIN L. COLEMAN
COLEMAN & BALOGH LLP
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 794-0420
Attorneys for Appellant Leroy Baca

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TABLE OF CONTENTS
Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Background. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
I. The district court erroneously empaneled an anonymous jury under

United States v. Sanchez, 74 F.3d 562 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . 3
II. The district court excluded defense evidence in violation of the

evidentiary rules and Mr. Bacas constitutional right to present a defense. . . . . . . 6
A. Rahm error exclusion of Alzheimers evidence. . . . . . . . . . . . . . . . 6

B. Whitman error exclusion of rebuttal motive evidence. . . . . . . . . . . 9
III. The district court sua sponte gave a non-pattern instruction on

the cooperating witness process that was erroneously one-sided
and misleading.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
IV. The district court gave a non-pattern instruction on the relationship

between federal and state authorities lacking a legal basis, and the
instructions tainted the requisite mens rea and undermined the defense... . . . . . . 14
V. There was insufficient evidence to sustain the 1001 conviction.. . . . . . . . . 18
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Certificate of service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
i
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TABLE OF AUTHORITIES
CASES
Bronston v. United States,

409 U.S. 352 (1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Burrage v. United States,

134 S. Ct. 881 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
Crittenden v. Chappell,
804 F.3d 998 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Deck v. Jenkins,
814 F.3d 954 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,18
Levine v. United States,

362 U.S. 610 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Northern Mariana Islands v. Bowie,

243 F.3d 1109 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
Quercia v. United States,

289 U.S. 466 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Smith v. Curry,
580 F.3d 1071 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
Smith v. State of Illinois,

390 U.S. 129 (1968). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Starr v. United States,

153 U.S. 614 (1894). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Aguilar,

515 U.S. 593 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
ii
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United States v. Barona,

56 F.3d 1087 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19
United States v. Bernard,

625 F.2d 854 (9th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Christian,

749 F.3d 806 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8,10
United States v. Cohen,

510 F.3d 1114 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Finn,

375 F.3d 1033 (10th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Gaudin,

515 U.S. 506 (1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Gergen,

172 F.3d 719 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Good,

326 F.3d 589 (4th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Handy,

761 F.2d 1279 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
United States v. Miller,

767 F.3d 585 (6th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Morales,

108 F.3d 1031 (9th Cir. 1997) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Murphy,

768 F.2d 1518 (7th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14,15
iii
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United States v. Paguio,

114 F.3d 928 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10,13,18
United States v. Pazsint,

703 F.2d 420 (9th Cir. 1983). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
United States v. Rahm,

993 F.2d 1405 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,8
United States v. Ramirez,

714 F.3d 1134 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12
United States v. Rodriguez-Rodriguez,

840 F.2d 697 (9th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
United States v. Sanchez,

74 F.3d 562 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,6
United States v. Sandoval-Mendoza,

472 F.3d 645 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Schuler,

813 F.2d 978 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,13,18
United States v. Shryock,

342 F.3d 948 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
United States v. Smith,

831 F.3d 1207 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Stever,

603 F.3d 747 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Thompson,

37 F.3d 450 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,13,18
iv
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United States v. Vallejo,

237 F.3d 1008 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Whitman,

771 F.2d 1348 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,10
Warger v. Shauers,
135 S. Ct. 521 (2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Williams v. United States,

93 F.2d 685 (9th Cir. 1937). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
STATUTES
18 U.S.C. 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
18 U.S.C. 371. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. 1001. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. 1503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
18 U.S.C. 3143. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. 994. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
RULES
Fed. R. App. P. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
Fed. R. Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
9th Cir. R. 9-1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
U.S.S.G. 5K1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
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INTRODUCTION
Appellant Leroy Baca moves for bail pending appeal under Fed. R. App. P.
9 and 9th Cir. R. 9-1.2. It is undisputed that Mr. Baca is not a flight risk or danger.
The only question is whether he will present substantial or debatable claims
that will result in reversal. 18 U.S.C. 3143(b); United States v. Handy, 761 F.2d
1279, 1283 (9th Cir. 1985). He will present several; this Court should grant bail.
BACKGROUND
Mr. Baca is 75-years old and has Alzheimers disease. Ex. D. He worked
for the Los Angeles Sheriffs Department (LASD) for almost 50 years and
served as the Sheriff for the last 15 years of his career before retiring in 2014.
In February 2016, the government filed an information alleging that Mr.
Baca made a false statement in a 2013 interview conducted by federal agents in
violation of 18 U.S.C. 1001. Mr. Baca was released and remains on a $10,000
appearance bond. He agreed to plead guilty with a government recommendation
of 0-6 months in custody; the district court rejected the agreement. CR 1,5,8,62.
A grand jury then returned a superseding indictment charging the 1001
offense as Count 3 and adding conspiratorial and substantive obstruction of justice
charges, 18 U.S.C. 371, 1503(a), as Counts 1 and 2. The indictment alleged
that, in 2011, the FBI used an inmate at a Los Angeles jail as an informant about
potential civil rights violations. The inmate bribed a deputy to smuggle a cell
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phone into the jail, which the inmate then secretly used. In August 2011, Mr. Baca
learned that the phone had been seized by deputies, who discovered that it
belonged to the FBI. Over the next month, Mr. Baca allegedly obstructed the
federal investigation by isolating the inmate from the FBI and threatening to arrest
the federal agents who had initiated the ruse to smuggle the phone into the jail.
Two years later, in April 2013, Mr. Baca allegedly made false statements during a
lengthy interview that he agreed to give to federal agents about the events. CR 70.
The district court sua sponte suggested that the obstruction counts be
severed from the false statements count because Mr. Bacas Alzheimers was
relevant to the latter and would unfairly prejudice the government as to the former.
The government obtained the severance, CR 190, and trial on the obstruction
counts commenced in December 2016 but ended in a mistrial, over Mr. Bacas
objection, when the jury deadlocked 11-1 in favor of acquittal. CR 210, 270.
The district court then granted the governments request to rejoin all three
counts, and, before the second trial, completely excluded evidence of Mr. Bacas
Alzheimers and committed a series of other errors that unfairly undermined his
defense. The second jury deliberated over three days before returning guilty
verdicts. The district court imposed a sentence of 36 months, a year more than the
governments recommendation, and denied bail pending appeal. Ex. B; CR 376.
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ARGUMENT
I. The district court erroneously empaneled an anonymous jury under United

States v. Sanchez, 74 F.3d 562 (5th Cir. 1996).
The district court held several prior trials where LASD deputies were
defendants in related cases and did not use an anonymous jury, but, over Mr.
Bacas objection, it sua sponte suggested and then used an anonymous jury in his
case. CR 180. The district court stated that the case involved a conspiracy of law
enforcement officers, Mr. Baca likely had connections to officers with ability to
access jurors privation information, and jurors (the court previously stated a mere
two) had expressed apprehension about access to private information in two prior
trials. The district court also reasoned that Mr. Baca was alleged to have
interfered with the judicial process, the charges carried potential 5-10 years of
imprisonment, and the case had attracted media coverage. Ex. C.
The district court erred under Sanchez, 74 F.3d at 564-65, where an
anonymous jury was used for the trial of an officer who threatened to arrest
prostitutes to coerce them to engage in sex acts. The district court relied on the
potential fears of jurors adjudicating the guilt or innocence of a police officer and
stated there was nothing more frightening to the populous than having a rogue
cop on their hands. Id. at 564-65. The Fifth Circuit reversed, as nothing showed
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that the defendant would attempt to harm the jurors, and the decision erroneously
rested on the mere allegations or inferences of potential risk. Id. at 565.
Reversal was required because the defendant has a right to a jury of known
individuals not just because information such as was redacted here yields valuable
clues for purposes of jury selection, but also because the verdict is both
personalized and personified when rendered by 12 known fellow citizens. Id.
The showing here was more deficient than Sanchez because there was no
allegation that Mr. Baca had engaged in any violence against members of the
public. Although Mr. Baca had been retired for three years, the district court
speculated that he was likely to have connections to deputies with the ability to
access private information. The district court did not explain what information
could be accessed that private investigators or the government could not access in
any case. The fact that perhaps two out of hundreds of potential jurors expressed
unspecified concerns at other trials is not cause for an anonymous jury. If that
were the standard, every trial in the land would be by an anonymous jury.
The district court reasoned that Mr. Baca was charged in a conspiracy to
obstruct justice that included hiding an informant and intimidating a FBI agent.
The informant was in the custody of the LASD, serving over 400 years for violent
crimes, and was isolated for a short time in 2011 after it was determined that a cell
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phone, with pictures of drugs, had been smuggled into him. The informant was
later produced to the FBI, as were hundreds of thousands of documents in
response to the federal investigation, and the indictment itself alleged that the brief
conspiracy terminated by at least September 2011, six years before the trial. The
asserted intimidation of the FBI agent also occurred six years earlier and did not
involve any violence; deputies approached the FBI agent and stated that they
would seek an arrest warrant for her violation of state law. Sheriff Baca
immediately informed the U.S. Attorney that no such arrest would be sought.
The district court stated that there was the potential for a lengthy sentence,
but the charges were lower level felonies, and the government had offered Mr.
Baca a deal for 0-6 months in custody. This exposure did not come close to the
sentences that have supported use of an anonymous jury. See United States v.
Shryock, 342 F.3d 948, 972 (9th Cir. 2003) (sentences of 25 years to life).
The district court mentioned that the case had attracted publicity, which
could lead to harassment of jurors. Despite several earlier publicized trials in
related cases without anonymous juries, the district court did not cite a single
incident where a juror was harassed by anyone -- the defendants, other LASD
personnel, or the press. If an anonymous jury can be employed for the trial of a
retired Sheriff on charges that he briefly engaged in non-violent conduct several
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years earlier, then it can be employed in virtually any case.
The district court at least erred by failing to disclose the identities of the
jurors to counsel, hampering the ability to select a jury. Sanchez, 74 F.3d at 565.
A name and address open countless avenues of . . . out-of-court investigation.
Smith v. State of Illinois, 390 U.S. 129, 131 (1968). With the internet, a name can
reveal much more than the limited information disclosed during voir dire, which is
not always accurate. See Warger v. Shauers, 135 S. Ct. 521 (2014). Disclosing
the jurors identities to counsel could not have resulted in juror intimidation.
Mr. Baca maintains that the error was structural, as errors related to jury
selection are not typically amenable to harmless error analysis. See Crittenden v.
Chappell, 804 F.3d 998, 1002-03 (9th Cir. 2015). Even if not structural, Sanchez
supports reversal in this close case. The first jury deadlocked 11-1 for acquittal,
and the second jury deliberated over the course of three days.
II. The district court excluded defense evidence in violation of the evidentiary
rules and Mr. Bacas constitutional right to present a defense.
A. Rahm error exclusion of Alzheimers evidence
Mr. Baca sought to introduce expert testimony from a leading expert on
Alzheimers disease, who would have testified that during the 2013 interview, Mr.
Baca was either in the pre-clinical or mild cognitive impairment stage of
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Alzheimers. In either stage, Alzheimers increased the probability that memory
impairment affected his answers to the questions about events occurring 20
months earlier. Ex. D. Although the district court believed that the evidence was
admissible as to the 1001 charge when it severed the counts for the first trial, it
excluded the evidence altogether at the second trial. The district court reasoned
that the doctor could only say that there was an increased probability that Mr.
Bacas Alzheimers impaired his memory, which was speculative and did not
quantify the increase. The court concluded that the evidence was therefore
inadmissible under Fed. R. Evid. 403 and 702. Ex. B; CR 267.
Putting aside that the district court understated the doctors declaration, Ex.
D, its conclusion was error under United States v. Rahm, 993 F.2d 1405, 1412 (9th
Cir. 1993), where this Court reversed a district court that excluded similar
testimony under Rules 403 and 702 based on the same rationale, explaining that
[c]ertainty is an unreasonable expectation in the realm of expert opinion.
[P]articularly in matters of the mind . . . [e]xperts ordinarily deal in probabilities,
in coulds and mights. Id. Experts using probability terminology can
provide admissible testimony. Id. See United States v. Sandoval-Mendoza, 472
F.3d 645, 655-56 (9th Cir. 2006). The district court erred by focusing on the
conclusiveness of the opinion rather than on the diagnosis and testimony about
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Mr. Bacas Alzheimers disease, Rahm, 993 F.2d at 1412; see United States v.
Christian, 749 F.3d 806, 811-12 (9th Cir. 2014), and Rule 403 could not support
exclusion. Rahm, 993 F.2d at 1415; see United States v. Cohen, 510 F.3d 1114,
1126-27 (9th Cir. 2007). The district court ignored this authority, and because such
important testimony was entirely excluded in violation of the evidentiary rules, the
district court violated Mr. Bacas constitutional right to present a defense. See
United States v. Stever, 603 F.3d 747, 755-57 (9th Cir. 2010).
The error was not harmless. Cohen, 510 F.3d at 1127; United States v.
Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc); Rahm, 993 F.2d at 1415.
The district court stated that any error could have only harmed the 1001 count.
Putting aside that the doctor stated that Mr. Baca suffered from Alzheimers
during the 2011 period of the obstruction counts, the district court ignored that the
government argued and the jury could have concluded that the false statements
showed consciousness of guilt as to the obstruction conduct. Without the alleged
false statements, the first jury deadlocked 11-1 for acquittal, demonstrating that
they were important and Mr. Bacas need to explain them. See United States v.
Vallejo, 237 F.3d 1008, 1018-22 (9th Cir. 2001) (exclusion of expert who would
have provided explanation for defendants alleged false statements not harmless);
see also United States v. Paguio, 114 F.3d 928, 935 (9th Cir. 1997) (the hung jury
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at the first trial persuades us that the case was close and might have turned on this
[issue]); United States v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994); United
States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987). The error tainted all counts.
B. Whitman error exclusion of rebuttal motive evidence
The governments theory of motive was that Mr. Baca obstructed the federal
investigation because he did not want inmate abuse at his jails to be exposed. As
but one example, the prosecutor began summations with: The problem [for Mr.
Baca] went to his department and his legacy. The problem was that the FBI was
investigating him, his department, his jails for civil rights violations. Mr. Baca
sought to counter that he had taken substantial steps to expose and correct inmate
abuse and civil rights violations throughout his career, including at the time of the
charges, thereby undermining the governments theory of motive. The district
court excluded the evidence, including Mr. Bacas cooperation with another
federal civil rights investigation in August 2011, his establishment and continued
support of an Office of Independent Review to critique the operations of the
LASD, including on allegations of inmate abuse, and his responses to excessive
force issues, such as the adoption of anti-retaliation measures in 2011. Ex. B.
Mr. Baca relied on United States v. Whitman, 771 F.2d 1348, 1351 (9th Cir.
1985), which held that, once the government opens the door regarding a motive, a
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defendant has a Fifth and Sixth Amendment right to rebut this evidence.
Neither the government below nor the district court acknowledged Whitman and
only asserted that the evidence was not sufficiently relevant or was otherwise
inadmissible under Rule 403. Under Whitman, however, once the government
opened the door with its motive theory, Mr. Baca had a constitutional right to
introduce rebuttal motive evidence, even if that evidence would otherwise have
been inadmissible under the Rules. The arguments against the rebuttal motive
evidence went to its weight, not its admissibility. Finally, in the context of the bail
pending appeal motion, the government also belatedly complained that some of
the offers of proof were vague or general, but the district court granted the
governments motion to exclude the evidence without finding any need to develop
the record, eliminating the validity of this objection. Christian, 749 F.3d at 810.
III. The district court sua sponte gave a non-pattern instruction on the
cooperating witness process that was erroneously one-sided and
misleading.
Several cooperating witnesses testified with the hope of receiving
sentencing reductions. Although the district court gave the model instruction that
the jury should examine their testimony with greater caution, it also sua sponte
gave an instruction, over Mr. Bacas objection, stating: [T]he punishment to be
imposed for any crime is exclusively for the Court to decide . . . and the Court is in
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no way required to impose any sentence that the government recommends. The
Court considers many factors, including the seriousness of the offense and
whether the defendant has a criminal history, in imposing the sentence. Ex. E.
The district court did not give this instruction at the first trial. CR 212.
While not illegal, but see 18 U.S.C. 201, the dangers of the cooperation
process and its potential to generate false testimony have been well documented.
See, e.g., Northern Mariana Islands v. Bowie, 243 F.3d 1109, 1124 (9th Cir. 2001).
Thus, Model Instruction 4.9 directs jurors to consider cooperator testimony with
greater caution, and the failure to give such an instruction is error. United States
v. Bernard, 625 F.2d 854, 857-58 (9th Cir. 1980). The sua sponte instruction given
here undermined these principles, was error under United States v. Ramirez, 714
F.3d 1134 (9th Cir. 2013), and was one-sided and misleading.
In Ramirez, the government did not call a cooperator, and, in response to a
defense argument that the witness was not called because he would have testified
favorably to the defense, the district court sua sponte instructed the jurors that
there was no evidence and they should not speculate as to why he was not called.
Id. at 1137. This Court reversed because the judge effectively instructed the jury
not to fall for defense counsels argument that the government didnt put [the
cooperator] on the stand because he would have testified in a manner favorable to
11
(18 of 93)
the defense. Id. This Court explained that it is the governments job, not the
courts, to make sure the jury doesnt draw incorrect inferences. Id. at 1139.
Here, as is often the case, the defense argued that the cooperation system
is corrupt, and the witnesses (certainly former deputies familiar with the system)
knew that if they said the things the government wanted to convict Mr. Baca, they
would be rewarded with reduced sentences. As in Ramirez, the district courts sua
sponte instruction effectively told the jurors not to fall for the defenses argument,
even though it was the governments job to make sure that the jurors did not draw
the incorrect inference about the cooperation process, not the courts.
While Ramirez alone demonstrates that the instruction was erroneous, other
precedent demonstrates that it was impermissibly one-sided. The influence of the
trial judge on the jury is necessarily and properly of great weight and his lightest
word or intimation is received with deference and may prove controlling.
Quercia v. United States, 289 U.S. 466, 470 (1933). Thus, the judge must take
great care that an instruction not be one-sided. Id. at 470; see Smith v. Curry,
580 F.3d 1071, 1083 (9th Cir. 2009) (reversing because instruction was not
neutral by any reasonable standard). A jury instruction should be stated
accurately, as well that which makes in favor of a party as that which makes
against him. Starr v. United States, 153 U.S. 614, 626 (1894).
12
(19 of 93)
Here, the instruction stated that the court was in no way required to follow
the governments recommendation and that a sentencing determination considered
many factors, including the seriousness of the offense and whether the defendant
has a criminal history, without mentioning cooperation at all. Jurors were much
more likely to know that a judge would take into account the seriousness of the
offense and a defendants prior record when imposing a sentence than how
cooperation fits into the analysis. By omitting cooperation as a factor, the
instruction was drastically one-sided. The one-sidedness was even worse because
the judge was instructing on his own judicial functions, adding greater weight to
the description. Williams v. United States, 93 F.2d 685, 694 (9th Cir. 1937).
Furthermore, Congress has mandated consideration of a defendants cooperation
at sentencing, 28 U.S.C. 994(n), including placing substantial weight on the
prosecutors recommendation. U.S.S.G. 5K1.1. Thus, the instruction was not
only one-sided but it was defectively misleading.
The erroneous instruction was harmful. The instruction was not given at the
first trial, where the jury deadlocked 11-1 for acquittal. Paguio, 114 F.3d at 935;
Thompson, 37 F.3d at 454; Schuler, 813 F.2d at 982. Furthermore, the district
court stated that it believed that the testimony of one of the cooperating witnesses,
William Tom Carey, was a significant factor in the different results. Ex. B.
13
(20 of 93)
IV. The district court gave a non-pattern instruction on the relationship

between federal and state authorities lacking a legal basis, and the
instructions tainted the requisite mens rea and undermined the defense.
Over Mr. Bacas objection, the district court instructed:
Local law enforcement departments, including the LASD, do not have the
authority to direct or control federal investigations, including those by the
FBI, the U.S. Attorneys Office, or a federal grand jury. In order to
investigate crime, federal law enforcement agencies are entitled to choose
their own tactics and strategies, conduct their own evaluations of risks,
assign their own personnel, and make their own decisions regarding whether
to inform others, including targets, that an investigation is underway. . . .
It is not for you to decide whether or how the federal government should
have conducted its investigation. . . .
A local officer has the authority to investigate potential violations of state

law. This includes the authority to investigate potential violations of state
law by federal agents. A local officer, however, may not use this authority
to engage in what ordinarily might be normal law enforcement practices,
such as interviewing witnesses, attempting to interview witnesses or moving
inmates, for the purpose of obstructing justice.
Ex. E. The district court did not give this instruction at the first trial. CR 212.
This instruction and all of the instructions viewed as a whole were erroneous.
The instructions assertion that the federal agents had no obligation to give
notice to state authorities is far from clear in this context. Perhaps the only
published case to address the issue is United States v. Murphy, 768 F.2d 1518 (7th
Cir. 1985), involving an undercover FBI investigation into a county court system.
In Murphy, the FBI notified the presiding judge of the courts criminal division,
14
(21 of 93)
the State Attorney for the county, the state Attorney General, and the Governor.
The Seventh Circuit did not decide whether such notice was necessary but
explained that the notice dispell[ed] any argument that the federal Government
has offended some principle requiring respect of the internal operations of the
state courts. Id. at 1529. Even if the FBI was concerned that providing notice to
the LASD would have compromised the operation, there were other authorities,
such as the California Attorney General and Los Angeles District Attorney, who
could have been notified to eliminate the problems that then ensued.
Given that the law is not settled, the decision to instruct as if the law was
clear erroneously undermined Mr. Bacas defense that he intended to conduct a
legitimate investigation into whether the FBI operation violated state law. The
jury sent a note asking: Being the first time the FBI inserted contraband into a
jail, did the federal government have the constitutional authority in the action
taken? CR 340. This was a crucial issue, and the instruction incorrectly told the
jury that Mr. Bacas belief was clearly wrong, although the law was not clear.
The instruction also tainted the requisite mens rea. The instruction told the
jurors that they were not to decide how the federal government should have
conducted its investigation, but this question was intertwined with Mr. Bacas
defense that he believed the FBI investigation potentially violated state law and
15
(22 of 93)
was acting accordingly. The instruction informed the jurors that officials could
not conduct normal practices, such as moving an inmate, for the purpose of
obstructing justice. But if Mr. Baca believed that the federal investigation was
illegal, then implementing practices, such as moving the inmate, to obstruct the
federal investigation would not have been undertaken with the requisite corrupt
intent. Throughout, the instructions defined obstructing justice with merely
obstructing the federal investigation, undermining Mr. Bacas defense.
The mixed motive instruction given by the district court did not eliminate
the taint flowing from this instruction and was error itself. That instruction stated:
[T]he government need not prove that the defendants sole or even primary
intention was to obstruct justice so long as [it] proves . . . that one of the
defendants intentions was to obstruct justice. The defendants intention to
obstruct justice must be substantial. Ex. E. This instruction did not amplify an
intent to obstruct justice, which was previously defined as an intent to obstruct
the federal investigation, and did not specify that it was not a violation if Mr. Baca
intended to obstruct a federal investigation that he believed was illegal.
The mixed motive instruction was also erroneous in its own right because
it did not set forth a but-for standard, and the substantial language used by the
district court was defective because it did not specify how important or how
16
(23 of 93)
substantial a cause must be to qualify. . . . Uncertainty of that kind cannot be
squared with the beyond-a-reasonable-doubt standard applicable in criminal trials
or with the need to express criminal laws in terms ordinary persons can
comprehend. Burrage v. United States, 134 S. Ct. 881, 888-89, 892 (2014).
Judge Suttons opinion in United States v. Miller, 767 F.3d 585, 591-92 (6th Cir.
2014) confirms that a but-for standard applies regardless of whether the critical
element is an easier-to-show prohibited act or a harder-to-prove prohibited
motive. That conclusion makes good sense in the context of a criminal case
implicating the motives of the defendants. The alternative proposed definition of
the phrase (significant motivating factor) does not sufficiently define the
prohibited conduct. How should a jury measure whether a specific motive was
significant in inspiring a defendant to act? Is a motive significant if its one of
three reasons he acted? One of ten? Id. at 592.1
Finally, the errors were prejudicial. Id. at 600. The jury asked a question on
the legitimacy of the federal investigation, demonstrating harmful error, see Deck
1
In United States v. Smith, 831 F.3d 1207, 1217-19 (9th Cir. 2016), this
Court did not find error with the dual purpose instruction given by the district
court in a related case. This Court, however, did not consider Burrage and Miller.
Furthermore, in Smith, the district court gave a good faith instruction, which this
Court heavily relied upon in determining that the intent instructions were
sufficient. Id. at 1220-21 and n.18. Here, no good faith instruction was given.
17
(24 of 93)
v. Jenkins, 814 F.3d 954, 985-86 (9th Cir. 2016); United States v. Gergen, 172 F.3d
719, 724 (9th Cir. 1999), and the defective instruction was not given at the first
trial, where the jury deadlocked 11-1 for acquittal. See Paguio, 114 F.3d at 935;
Thompson, 37 F.3d at 454; Schuler, 813 F.2d at 982.
V. There was insufficient evidence to sustain the 1001 conviction.
The government presented insufficient evidence of a 1001 violation in
three respects. First, in order to get around United States v. Aguilar, 515 U.S. 593,
600 (1995) as to the 1503(a) counts, the government had the FBI agent who
interviewed Mr. Baca testify that his interviews and investigation was as an arm
of the grand jury. Given the governments theory, the interview of Mr. Baca was
within the jurisdiction of the judicial branch. See Levine v. United States, 362
U.S. 610, 617 (1960). Count 3, however, alleged a false statement within the
jurisdiction of the executive branch. Thus, the evidence was insufficient to sustain
the charge as pled. United States v. Pazsint, 703 F.2d 420, 423-24 (9th Cir. 1983).
Second, in Bronston v. United States, 409 U.S. 352, 358-59 (1973), the
Court held that a literally true but non-responsive and misleading answer cannot
sustain a perjury conviction; it is the responsibility of the questioner to pin the
witness down with precision. The Bronston rule applies to 1001. United States
v. Good, 326 F.3d 589, 591-92 (4th Cir. 2003). The government proceeded on four
18
(25 of 93)
false statements, but at least one was legally inadequate under Bronston, tainting
the verdict on Count 3.
Perhaps the clearest example is Mr. Bacas statements regarding the
intimidation of the FBI agent. Although the indictment misleadingly alleged the
false statement in the disjunctive, the prosecutor asked whether Mr. Baca had prior
knowledge that deputies were going to threaten to charge and arrest her. Mr.
Baca indicated that he did not, and the prosecutor also asked whether he knew that
deputies were going to approach the agent; Mr. Baca stated that he was not
aware of the investigative particulars but received a call about the contact with
the agent and was aware something occurred. The evidence presented by the
government was that Mr. Baca told deputies not to arrest the agent. Given the
conjunctive phrasing of the question, his responses were literally true, even if
misleading. Likewise, his vague statement that he did not know the investigative
particulars and was aware something occurred after the call, even if non-
responsive and misleading, could not sustain a conviction under Bronston. The
jury was never given a Bronston instruction and thus could not have determined
such legal adequacy. Because there was a general verdict on Count 3, and at
least one underlying theory was legally inadequate, reversal is required. United
States v. Barona, 56 F.3d 1087, 1097-98 (9th Cir. 1995).
19
(26 of 93)
Third, there was insufficient evidence of materiality. No agent or other
witness testified that the alleged misstatements were capable of influencing the
relevant decision-making body. See United States v. Finn, 375 F.3d 1033, 1038-
40 (10th Cir. 2004) (government witnesses did not provide sufficient testimony to
establish materiality where federal agent made false statement to receive
reimbursement). The district court emphasized an FBI agents testimony that Mr.
Baca was interviewed because he had information that may have been relevant to
the investigation, Ex. B, but that did not establish that the false statements
alleged were capable of influencing the decision-making body. The district court
also relied on United States v. Rodriguez-Rodriguez, 840 F.2d 697, 701 (9th Cir.
1988), but that case, involving false claims of citizenship at an immigration
checkpoint, is distinguishable and was decided before United States v. Gaudin,
515 U.S. 506 (1995) clarified that materiality was a factual matter for the jury.
CONCLUSION
Mr. Baca will present debatable claims that will result in reversal; thus, this
appeal is not for delay. This Court should grant bail pending appeal.
Respectfully submitted,
s/Benjamin L. Coleman
Dated: July 24, 2017 BENJAMIN L. COLEMAN
Attorney for Appellant Leroy Baca
20
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CERTIFICATE OF SERVICE
I, hereby certify that on July 24, 2017, I electronically filed the
foregoing Motion 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.
Dated: July 24, 2017 s/Benjamin L. Coleman

BENJAMIN L. COLEMAN
21
(28 of 93)
EXHIBIT A
Court Reporter Certificate And Judgment
(29 of 93)
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) No. 17-50192

)
Plaintiff-Appellee, ) D.C. No. 16CR00066-PA
)
v. ) RULE 9-1.2
) CERTIFICATION
LEROY BACA, )
)
Defendant-Appellant. )
)
________________________________ )
We are the reporters preparing the outstanding transcripts on appeal
in the above-captioned case. The transcripts have been ordered, and satisfactory
arrangements have been made to pay for them. We estimate that the transcripts
will be completed by August 14, 2017.
Dated: July 24, 2017 s/Cindy Nirenberg

CINDY NIRENBERG
350 West 1st Street, Suite 4455
Los Angeles, California 90012
Telephone: (213) 894-2449
Dated: July 24, 2017 s/Katie Thibodeaux

KATIE THIBODEAUX
Telephone: (213) 894-8676
(30 of 93)
Dated: July 24, 2017 s/Miranda Algorri

MIRANDA ALGORRI
Telephone: (213) 894-0134
Dated: July 24, 2017 s/Myra Ponce

MYRA PONCE
350 West 1st Street, Fourth Floor
Telephone: (213) 894-2305
Dated: July 24, 2017 s/Deborah Gackle

DEBORAH GACKLE
350 West 1st Street, Fourth Floor
Telephone: (213) 620-1149
2
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Case 2:16-cr-00066-PA
Case: 17-50192,Document
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United States District Court

Central District of California
UNITED STATES OF AMERICA vs. Docket No. CR 16-66-PA (A)
Defendant Leroy Baca Social Security No. 4 1 5 0

akas: Leroy David Baca (Last 4 digits)
JUDGMENT AND PROBATION/COMMITMENT ORDER
MONTH DAY YEAR

In the presence of the attorney for the government, the defendant appeared in person on this date. 05 12 2017
COUNSEL Nathan J. Hochman, Rtnd.

(Name of Counsel)
PLEA X GUILTY, and the court being satisfied that there is a factual basis for the plea. NOLO NOT
CONTENDERE GUILTY
FINDING There being a finding/verdict of GUILTY, defendant has been convicted as charged of the offense(s) of:
Count 1, Conspiracy 18 U.S.C. 371; Count 2, Obstruction of Justice 18 U.S.C. 1503(a); Count 3, Making False
Statement 18 U.S.C. 1001 (a)(2) as charged in the First Superceding Indictment.
JUDGMENT The Court asked whether there was any reason why judgment should not be pronounced. Because no sufficient cause to the
AND PROB/ contrary was shown, or appeared to the Court, the Court adjudged the defendant guilty as charged and convicted and ordered that:
COMM Pursuant to the Sentencing Reform Act of 1984, it is the judgment of the Court that the defendant is hereby committed to the
ORDER custody of the Bureau of Prisons to be imprisoned for a term of:
36 (THIRTY SIX) MONTHS to be served concurrently as to each count.
Upon release from imprisonment, the defendant shall be placed on supervised release for a term of 1 (ONE) YEAR under the
following terms and conditions to run concurrently with each count:
1. The defendant shall comply with the rules and regulations of the United States Probation Office, General Order 05-02, and
General Order 01-05, including the three special conditions delineated in General Order 01-05.
2. During the period of community supervision, the defendant shall pay the special assessment and fine in accordance with this
judgment's orders pertaining to such payment.
3. The defendant shall cooperate in the collection of a DNA sample from the defendant.
4. The defendant shall apply all monies received from income tax refunds to the outstanding court-ordered financial obligation.
In addition, the defendant shall apply all monies received from lottery winnings, inheritance, judgments and any anticipated
or unexpected financial gains to the outstanding court-ordered financial obligation.
5. The Court recommends that the Bureau of Prisons conduct a mental health evaluation of the defendant and provide all
necessary treatment.
6. The drug testing condition mandated by statute is suspended based on the Court's determination that the defendant poses a
low risk of future substance abuse.
CR-104 (wpd 10/15) JUDGMENT & PROBATION/COMMITMENT ORDER Page 1 of 4

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USA vs. Leroy Baca Docket No.: CR 16-00066-PA (A)
It is ordered that the defendant shall pay to the United States a special assessment of $300, which is due immediately. Any unpaid
balance shall be due during the period of imprisonment at the rate of not less than $25 per quarter pursuant to the Bureau of Prisons' Inmate
Financial Responsibility Program
It is ordered that the defendant shall pay to the United States a total fine of $7,500, consisting of the following: Count 1, a fine of
$2,500; Count 2, a fine of $2,500; and Count 3, a fine of $2,500. The total fine shall bear interest as provided by law.
The fine shall be paid in full immediately.
The defendant shall comply with General Order No. 01-05.
The defendant is advised of his right to appeal.
The Court recommends the defendant be designated to a Bureau of Prisons facility in Sheridan, Oregon or Terminal Island Federal
Correctional Institute, Los Angeles County, California.
Bond is exonerated upon self surrender of the defendant.
It is further ordered that the defendant surrender himself to the institution designated by the Bureau of Prisons on or before 12 noon, on
July 25, 2017. In the absence of such designation, the defendant shall report on or before the same date and time, to the United States Marshal
located at:
Roybal Federal Building

255 East Temple Street
In addition to the special conditions of supervision imposed above, it is hereby ordered that the Standard Conditions of Probation and
Supervised Release within this judgment be imposed. The Court may change the conditions of supervision, reduce or extend the period of
supervision, and at any time during the supervision period or within the maximum period permitted by law, may issue a warrant and revoke
supervision for a violation occurring during the supervision period.
May 15, 2017

Date U. S. District Judge
It is ordered that the Clerk deliver a copy of this Judgment and Probation/Commitment Order to the U.S. Marshal or other qualified officer.
Clerk, U.S. District Court
May 15, 2017 By Charles A. Rojas

Filed Date Deputy Clerk
The defendant shall comply with the standard conditions that have been adopted by this court (set forth below).
STANDARD CONDITIONS OF PROBATION AND SUPERVISED RELEASE
While the defendant is on probation or supervised release pursuant to this judgment:

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1. The defendant shall not commit another Federal, state or local crime; 10. the defendant shall not associate with any persons engaged in criminal
2. the defendant shall not leave the judicial district without the written activity, and shall not associate with any person convicted of a felony
permission of the court or probation officer; unless granted permission to do so by the probation officer;
3. the defendant shall report to the probation officer as directed by the 11. the defendant shall permit a probation officer to visit him or her at any
court or probation officer and shall submit a truthful and complete time at home or elsewhere and shall permit confiscation of any
written report within the first five days of each month; contraband observed in plain view by the probation officer;
4. the defendant shall answer truthfully all inquiries by the probation 12. the defendant shall notify the probation officer within 72 hours of
officer and follow the instructions of the probation officer; being arrested or questioned by a law enforcement officer;
5. the defendant shall support his or her dependents and meet other 13. the defendant shall not enter into any agreement to act as an informer
family responsibilities; or a special agent of a law enforcement agency without the permission
6. the defendant shall work regularly at a lawful occupation unless of the court;
excused by the probation officer for schooling, training, or other 14. as directed by the probation officer, the defendant shall notify third
acceptable reasons; parties of risks that may be occasioned by the defendants criminal
7. the defendant shall notify the probation officer at least 10 days prior record or personal history or characteristics, and shall permit the
to any change in residence or employment; probation officer to make such notifications and to conform the
8. the defendant shall refrain from excessive use of alcohol and shall not defendants compliance with such notification requirement;
purchase, possess, use, distribute, or administer any narcotic or other 15. the defendant shall, upon release from any period of custody, report
controlled substance, or any paraphernalia related to such substances, to the probation officer within 72 hours;
except as prescribed by a physician; 16. and, for felony cases only: not possess a firearm, destructive device,
9. the defendant shall not frequent places where controlled substances or any other dangerous weapon.
are illegally sold, used, distributed or administered;

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The defendant will also comply with the following special conditions pursuant to General Order 01-05 (set forth below).
STATUTORY PROVISIONS PERTAINING TO PAYMENT AND COLLECTION OF FINANCIAL SANCTIONS
The defendant shall pay interest on a fine or restitution of more than $2,500, unless the court waives interest or unless the fine or
restitution is paid in full before the fifteenth (15th) day after the date of the judgment pursuant to 18 U.S.C. 3612(f)(1). Payments may be subject
to penalties for default and delinquency pursuant to 18 U.S.C. 3612(g). Interest and penalties pertaining to restitution, however, are not
applicable for offenses completed prior to April 24, 1996.
If all or any portion of a fine or restitution ordered remains unpaid after the termination of supervision, the defendant shall pay the
balance as directed by the United States Attorneys Office. 18 U.S.C. 3613.
The defendant shall notify the United States Attorney within thirty (30) days of any change in the defendants mailing address or
residence until all fines, restitution, costs, and special assessments are paid in full. 18 U.S.C. 3612(b)(1)(F).
The defendant shall notify the Court through the Probation Office, and notify the United States Attorney of any material change in the
defendants economic circumstances that might affect the defendants ability to pay a fine or restitution, as required by 18 U.S.C. 3664(k). The
Court may also accept such notification from the government or the victim, and may, on its own motion or that of a party or the victim, adjust
the manner of payment of a fine or restitution-pursuant to 18 U.S.C. 3664(k). See also 18 U.S.C. 3572(d)(3) and for probation 18 U.S.C.
3563(a)(7).
Payments shall be applied in the following order:
1. Special assessments pursuant to 18 U.S.C. 3013;

2. Restitution, in this sequence (pursuant to 18 U.S.C. 3664(i), all non-federal victims must be paid before the United
States is paid):
Non-federal victims (individual and corporate),
Providers of compensation to non-federal victims,
The United States as victim;
3. Fine;
4. Community restitution, pursuant to 18 U.S.C. 3663(c); and
5. Other penalties and costs.
SPECIAL CONDITIONS FOR PROBATION AND SUPERVISED RELEASE
As directed by the Probation Officer, the defendant shall provide to the Probation Officer: (1) a signed release authorizing credit report
inquiries; (2) federal and state income tax returns or a signed release authorizing their disclosure; and (3) an accurate financial statement, with
supporting documentation as to all assets, income and expenses of the defendant. In addition, the defendant shall not apply for any loan or open
any line of credit without prior approval of the Probation Officer.
The defendant shall maintain one personal checking account. All of defendants income, monetary gains, or other pecuniary proceeds
shall be deposited into this account, which shall be used for payment of all personal expenses. Records of all other bank accounts, including any
business accounts, shall be disclosed to the Probation Officer upon request.
The defendant shall not transfer, sell, give away, or otherwise convey any asset with a fair market value in excess of $500 without
approval of the Probation Officer until all financial obligations imposed by the Court have been satisfied in full.
These conditions are in addition to any other conditions imposed by this judgment.

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RETURN
I have executed the within Judgment and Commitment as follows:

Defendant delivered on to
Defendant noted on appeal on
Defendant released on
Mandate issued on
Defendants appeal determined on
Defendant delivered on to
at
the institution designated by the Bureau of Prisons, with a certified copy of the within Judgment and Commitment.
United States Marshal
By
Date Deputy Marshal
CERTIFICATE
I hereby attest and certify this date that the foregoing document is a full, true and correct copy of the original on file in my office, and in my
legal custody.
Clerk, U.S. District Court
By
Filed Date Deputy Clerk
FOR U.S. PROBATION OFFICE USE ONLY
Upon a finding of violation of probation or supervised release, I understand that the court may (1) revoke supervision, (2) extend the term of
supervision, and/or (3) modify the conditions of supervision.
These conditions have been read to me. I fully understand the conditions and have been provided a copy of them.
(Signed)
Defendant Date
U. S. Probation Officer/Designated Witness Date

(36 of 93)
EXHIBIT B
Bail Pending Appeal Order
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Case 2:16-cr-00066-PA
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UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA
CRIMINAL MINUTES - GENERAL
Case No. CR 16-66 PA Date July 19, 2017
Present: The Honorable PERCY ANDERSON, UNITED STATES DISTRICT JUDGE
Interpreter None
Lizabeth Rhodes (Not present)

Kamilla Sali-Suleyman Not Reported Eddie Jauregui (Not present)
Deputy Clerk Court Reporter Assistant U.S. Attorney
U.S.A. v. Defendant(s): Present Cust. Bond Attorneys for Defendants: Present App. Ret.
Leroy Baca Not X Nathan Hochman Not X
Proceedings: IN CHAMBERS - ORDER
Before the Court is a Motion for Bond Pending Appeal filed by defendant Leroy Baca
(Defendant) (Docket No. 369).1/ The Court concludes that a hearing is unnecessary.
I. Factual Background
The First Superseding Indictment charged Defendant with: (1) conspiracy to obstruct justice in
violation of 18 U.S.C. 371 & 1503(a); (2) obstruction of justice in violation of 18 U.S.C. 1503(a);
and (3) making false statements in violation of 18 U.S.C. 1001(a)(2). Those charges arose out of
efforts by members of the Los Angeles Sheriffs Department (LASD) to obstruct a federal grand
jurys investigation into excessive force committed by other LASD members at Los Angeles Countys
jails. Defendant was the elected Sheriff of Los Angeles County at the time of both the abuse conducted
by members of his department and of the efforts to obstruct the federal investigation into that abuse.
For trial, the Court initially severed the false statements count from the conspiracy and
obstruction counts, and tried the conspiracy and obstruction counts first. After the jury in that trial was
unable to reach a unanimous verdict, and the Court declared a mistrial, the Court granted the
Governments motion to re-join the three counts. At a second trial in March 2017, the jury convicted
Defendant on all three counts. The Court subsequently sentenced Defendant to a below-guidelines
sentence of 36 months of incarceration.
1/
The Court initially ordered Defendants Motion stricken because it was filed as a Supplement
to his Sentencing Position just two days prior to the purported hearing date that coincided with
Defendants sentencing hearing, and therefore deprived both the Government and the Court adequate
time to respond to and review the Motion. At the sentencing hearing, the parties agreed to a briefing
schedule and have the Court consider the Motion without requiring Defendant to re-file it. Defendant
did not take advantage of his opportunity to file a Reply to the Governments Opposition.
CR-11 (09/98) CRIMINAL MINUTES - GENERAL Page 1 of 9
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II. Legal Standard
Defendant now seeks bond pending appeal. For a defendant to obtain release on bond pending
appeal, the Court must find:
(A) by clear and convincing evidence that the person is not likely to flee
or pose a danger to the safety of any other person or the community
if released . . . and
(B) that the appeal is not for the purpose of delay and raises a substantial
question of law or fact likely to result in
(i) reversal,
(ii) an order for a new trial,
(iii) a sentence that does not include a term of
imprisonment, or
(iv) a reduced sentence to a term of imprisonment less than
the total of the time already served plus the expected
duration of the appeal process.
18 U.S.C. 3143(b)(1). Here, the Government does not dispute that Defendant has, for purposes of 18
U.S.C. 3143(b)(1)(A), established by clear and convincing evidence that he is not likely to flee or
pose a danger to the community if released on bond pending the disposition of his appeal.
Section 3143(b)s requirement that the appeal is not for purpose of delay is a separate
requirement from the requirement that the appeal raises a substantial question likely to result in
reversal or a new trial. See United States v. Handy, 761 F.2d 1279, 1283 (9th Cir. 1985) ([U]nder the
1984 Bail Act a court must find the following to grant bail pending appeal: (1) that the defendant is not
likely to flee or pose a danger to the safety of any other person in the community if released; (2) that the
appeal is not for purpose of delay; (3) that the appeal raises a substantial question of law or fact; and (4)
that if that substantial question is determined favorably to defendant on appeal, that decision is likely to
result in reversal or an order for a new trial of all counts on which imprisonment has been imposed.).
According to the Ninth Circuit, the word substantial defines the level of merit required in the
question raised on appeal, while the phrase likely to result in reversal defines the type of question that
must be presented. Id. at 1281. [A] substantial question is one that is fairly debatable, or fairly
doubtful. In short, a substantial question is one of more substance than would be necessary to a
finding that it was not frivolous. Id. at 1283 (quoting United States v. Giancola, 754 F.2d 898, 901
(9th Cir. 1985)).
In his Motion for Bond Pending Appeal, Defendant asserts that he has satisfied his burden to
raise substantial questions involving evidentiary rulings made by the Court. The Courts evidentiary
rulings are generally reviewed for an abuse of discretion. See United States v. Gallendardo, 579 F.3d
1076, 1081 (9th Cir. 2009); see also United States v. Haischer, 780 F.3d 1277, 1281 (9th Cir. 2015)

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(We review the exclusion of evidence under Rule 403 for an abuse of discretion.). According to
Defendant, the Courts erroneous evidentiary rulings violated his constitutional right to present a
defense. Where an evidentiary error has occurred in a criminal prosecution, we then review de novo
whether the error rises to the level of a constitutional violation. Haischer, 780 F.3d at 1281 (quoting
United States v. Pineda-Doval, 614 F.3d 1019, 1032 (9th Cir. 2010)). In considering such
constitutional arguments, the Ninth Circuit considers the probative value of the evidence on the central
issue; its reliability; whether it is capable of evaluation by the trier of fact; whether it is the sole
evidence on the issue or merely cumulative; and whether it constitutes a major part of the attempted
defense. United States v. Stever, 603 F.3d 747, 756 (9th Cir. 2010).
Defendant also challenges the sufficiency of the evidence to support his conviction on Count 3,
for making false statements. In considering a challenge to the sufficiency of the evidence to support a
conviction, the relevant question is whether, after viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a
reasonable doubt. United States v. Del Toro-Barboza, 673 F.3d 1136, 1143 (9th Cir. 2012) (quoting
Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)).
III. Analysis
In support of his Motion for Bond Pending Appeal, Defendant asserts six grounds in his attempt
to meet his burden to raise a substantial question likely to result in reversal or a new trial. Those six
grounds are: (1) whether the Court erred in excluding evidence that Defendant cooperated with an
unrelated investigation conducted by the Department of Justices Civil Rights Division; (2) whether the
Court erred in excluding evidence that Defendant established, supported, and worked with the Office of
Independent Review (OIR); (3) whether the Court erred in excluding evidence relating to
Defendants responses to excessive force within Los Angeles Countys jails; (4) whether the Court
erred in excluding portions of Defendants interview with federal investigators conducted in April 2013
that Defendant sought to introduce; (5) whether the Court erred in precluding evidence of Defendants
Alzheimers disease; and (6) whether the Government presented sufficient evidence to sustain a
conviction on the false statements count.
A. Evidence of Defendants Cooperation with Unrelated Civil Rights Investigation
Defendant asserts that this Courts exclusion of his purported cooperation with an unrelated
civil investigation being conducted by the Department of Justices Civil Rights Division raises a
substantial question that is likely to result in reversal or a new trial. The only evidence Defendant ever
proffered of this cooperation was an inadmissible newspaper article and photo concerning an
appearance Defendant made with Thomas Perez, who at the time was the Assistant Attorney General
for the Civil Rights Division. As the Government correctly observes in its Opposition, Defendant never
identifies what testimony or exhibits related to this category of evidence he believes should have been
admitted at trial. Even assuming that Defendant did vow to cooperate with the Department of

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Justices investigation into allegations that deputies harassed minority residents of Section 8 housing in
the Antelope Valley, such evidence was not relevant to the charges against Defendant under Federal
Rule of Evidence 401. See Herzog v. United States, 226 F.2d 561, 565 (9th Cir. 1955) (A defendant
cannot establish his innocence of crime by showing that he did not commit similar crimes on other
occasions.). Nor do such statements and other similar evidence qualify as admissible acts under
Rule 404(b). That evidence is also inadmissible under Rule 405 and is hearsay to which no exception
applies. Additionally, even if such evidence was minimally relevant, the Court properly weighed the
probative value of that evidence against the potential prejudice, juror confusion, and time-wasting of
that evidence when it concluded, pursuant to Rule 403, that the evidence should be excluded.
B. Evidence Concerning Defendants Establishment of and Working with OIR
Defendant contends that the Courts exclusion of certain evidence relating to the creation of OIR
a decade prior to the charged conduct, and Defendants continued support and relationship with OIR in
the intervening period, raises a substantial issue likely to result in reversal or a new trial. The Court
sustained the Governments objections to such evidence because it was not relevant under Rule 401.
There was no evidence that OIR was in fact independent. OIR was housed in an LASD facility, its
lead counsel also served as an attorney for LASD and Defendant, it had no power to bring charges
against deputies committing abuse, and its recommendations could be ignored by the Department. As
the Government notes in its Opposition to the Motion for Bond Pending Appeal, [t]he fact that OIR
continued to exist and receive funding at the time of the conspiracy did not rebut the governments
theory that [D]efendant wanted the Sheriffs Department to police itself; it supports it.
Even if such evidence could be considered minimally relevant, its probative value was
substantially outweighed by the risks of juror confusion, prejudice, and waste of time. The admission
of such evidence would have required the Government to rebut the evidence by exploring the structure
of OIR, and its ineffectiveness in providing meaningful oversight of LASD. Additionally, as with most
of the evidentiary rulings Defendant challenges in this Motion, Defendant sought to present such
evidence to introduce character evidence without satisfying the requirements of Rule 404(b). See
United States v. Murillo, 255 F.3d 1169, 1175 (9th Cir. 2001) (Evidence of other acts is admissible
under Rule 404(b) when: (1) sufficient evidence exists for the jury to find that the defendant committed
the other acts; (2) the other acts are introduced to prove a material issue in the case; (3) the other acts
are not too remote in time; and (4) if admitted to prove intent, the other acts are similar to the offense
charged.), overruled on other grounds as recognized in United States v. Mendez, 476 F.2d 1077, 1080
(9th Cir. 2007). The Court did not abuse its discretion by excluding this irrelevant, prejudicial, and
otherwise inadmissible evidence.
C. Evidence Concerning Defendants Responses to Excessive Force within the Jails
Defendant challenges the Courts exclusion of evidence related to his response to excessive
force occurring within the jails. Although the Motion for Bond Pending Appeal does not specifically

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describe this evidence, the Court granted the Governments Motion in Limine to exclude evidence
related to training provided by Commander Paul Pietrantoni about the proper use of force and
wrestling moves to deputies, the establishment of a Commander Management Task Force (CMTF),
and the creation of the Education Based Incarceration Program (EBI). Unlike in the initial trial, when
the Government presented evidence that Defendant received notice of the widespread violence
committed by deputies within the jails, the Government made significant changes to its trial strategy in
the second trial and eliminated the notice witnesses, evidence, and argument.2/
The Court correctly concluded that this evidence was not relevant because efforts to curtail
excessive force resulting from deputies attempting to extricate uncooperative inmates from their cells,
or to provide educational opportunities in the asserted but unproven hope that those opportunities might
reduce confrontations between deputies and inmates, has nothing to do with the types of unprovoked
and retaliatory violence committed by deputies that were the subject of the Grand Jurys investigation.
Situations where deputies may have needed to use some force, but resorted to using excessive force,
have little if anything to do with situations where no force was justified in the first instance. The Court
therefore properly excluded the evidence under Rule 401, and even if it were minimally relevant, its
probative value was substantially outweighed by the danger of prejudice, confusing of the issues,
misleading the jury, undue delay, and wasting of time under Rule 403. Additionally, this evidence, as
the Government repeatedly and correctly argued, and the Court held, was inadmissible other act
evidence under Rule 404(b).
D. Exclusion of Defendants Own Statements
Prior to trial, Defendant sought to require the admission of portions of his April 2013 interview
with federal investigators to supplement the portions the Government intended to introduce for
purposes of completeness or to provide context under Rule 106. In his Motion for Bond Pending
Appeal, Defendant does not identify the particular statements he believes the Court erroneously
excluded. The Court did not commit error by excluding the additional portions of the interview that
Defendant sought to introduce. Rule 106 does not allow a defendant to introduce self-serving hearsay
statements at trial. United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996). Even if Defendant
belatedly contends that he has a non-hearsay purpose for introducing the statements, the statements
Defendant sought to introduce did not clarify or add context to otherwise misleading statements
introduced by the Government. The statements introduced by the Government were not misleading or
2/
The Government made a number of changes to its presentation of its case-in-chief. Despite
Defendants assertion throughout his Motion for Bond Pending Appeal that the Courts evidentiary
rulings are the reason that the second trial resulted in his conviction while the first jury could not reach
a verdict, it was these changes in the Governments trial strategy, including the addition of the
testimony of William Carey, and emphasizing Defendants participation in the conspiracy, as well as a
different jury composition and Defendants decision not to call character witnesses, rather than the
Courts evidentiary rulings, that explain the different results in the two trials.
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taken out of context. See United States v. Vallejos, 742 F.3d 902, 905 (9th Cir. 2014). The Court
therefore committed no error by excluding the portions of the statements Defendant sought to introduce
and preventing Defendant from introducing self-serving hearsay.
E. Evidence Relating to Defendants Alzheimers Disease Diagnosis
Defendant challenges the Courts granting of the Governments Motion in Limine to exclude the
testimony of Dr. James Spar.3/ As an initial matter, neither Defendant nor Dr. Spar ever offered any
opinion concerning a relationship between Defendants Alzheimers disease diagnosis and the
obstructive conduct in 2011. Accordingly, Dr. Spars testimony could not be relevant under Rule 401
to Counts 1 and 2, and there can be no viable argument that the exclusion of that testimony raises a
substantial question likely to result in reversal or a new trial on those charges.
Contrary to the argument contained in Defendants Motion, the Court never impermissibly
weighed the evidence when it concluded that Dr. Spars testimony did not satisfy Rule 702s
requirements for admissibility.4/ Instead, and as argued in the Governments Motion in Limine, that
testimony, even for Count 3, was entirely speculative and inadmissible under Rule 702 because it was
the product of unreliable methodology, artificially limited facts, and bare speculation. Indeed,
undefined pronouncements including those in which Dr. Spar opines that Defendants current diagnosis
may have been demonstrating clinical symptoms and that there was an increased probability that
defendants condition negatively affected his ability in 2013 would not help the trier of fact to
understand the evidence or determine a fact in issue and would only serve to confuse the jury.5/
Increased probability is a meaningless phrase that applies just as easily to an increase from 0% to 1%
as it does to an increase from 10% to 90%. Dr. Spars opinion therefore fails to satisfy the
requirements of Rule 702. Even if admissible, the Court properly concluded that this evidence and
testimony should be excluded under Rule 403 because the low probative value of the evidence was
substantially outweighed by the dangers of unfair prejudice, including the sympathy the evidence might
create for the Defendant, confusion of issues, misleading the jury, and waste of time.
3/
In his Motion for Bond Pending Appeal, Defendant characterizes the Courts perceived error as
excluding a broader class of evidence of Mr. Bacas Alzheimers disease, but the Court never issued
such a broad exclusionary ruling. Instead, the Court only precluded the testimony contained in the
proffer of Dr. Spars testimony submitted by Defendant.
4/
Dr. Spar sought to link Defendants statements in 2013 to a diagnosis of mild cognitive
impairment that he received years later.
5/
To be relevant an experts proffered testimony must help the trier of fact to understand the
evidence or to determine a fact in issue. Fed.R.Evid. 702.
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In his Motion for Bond Pending Appeal, Defendant additionally contends that the Government
opened the door to evidence of Defendants Alzheimers disease by playing excerpts of a 2015
deposition in which Defendant testified about his relationship with his co-conspirator Paul Tanaka. But
Dr. Spar never proffered an opinion concerning that deposition testimony. Additionally, although
Defendant now nonsensically argues that he should have been allowed to attack his own credibility,
erroneously referring to himself as a party-opponent, through evidence he never sought to admit and
has not identified or described, there has never been any evidence that Defendants statements
concerning his relationship with former Undersheriff Tanaka were untrue or the product of Defendants
Alzheimers disease. Such arguments do not raise a substantial question likely to result in reversal or a
new trial.
F. Sufficiency of the Evidence in Support of the False Statements Conviction
Defendant asserts that the Government failed to elicit sufficient evidence that his false
statements to federal investigators during the April 2013 interview were material. A misstatement is
material for purposes of [18 U.S.C.] 1001 if it has a natural tendency to influence or [is] capable of
influencing the decision of the decisionmaking body to which it was addressed. United States v.
King, 735 F.3d 1098, 1107-08 (9th Cir. 2013) (quoting United States v. Gaudin, 515 U.S. 506, 509, 115
S. Ct. 2310, 132 L. Ed. 3d 444 (1995)). A misstatement need not actually influence the agency
decision in order to be material; propensity to influence is enough. Accordingly, our concern is not
with the extent of the agencys reliance, but rather with the intrinsic capabilities of the false statement
itself. Id. at 1108 (quoting United States v. Serv. Deli Inc., 151 F.3d 938, 941 (9th Cir. 1998)).
Defendant was charged with making false statements to the FBI and the U.S. Attorneys Office
about his knowledge of the federal investigation into the jails and his role in the conspiracy to obstruct
the investigation in an interview in 2013. As explained in the Governments Opposition to Defendants
Motion for Bond Pending Appeal:
The evidence at trial established that the FBI was investigating the alleged
obstruction at the time of the interview, and had been for some time, and
that the FBI wanted to speak with defendant as part of its investigation.
(See Reporters Transcript (R.T.) 7:3-15 (noting that FBI began
investigating obstruction in approximately summer of 2012, and specifically
the Sheriffs Departments hiding of an informant and intimidation of
witnesses); see also R.T. 12:2-20; 270:10-14; 272:23-273:4.) Special Agent
Jason Dalton testified that the government provided a letter to defendant
advising him of the nature of the investigation and notifying him that while
he was not a target of the obstruction investigation at the time, the
governments assessment could change in the event that new and different
information regarding Mr. Baca comes to our attention. (R.T. 12:2-20; see
also Gov. Ex. 111.) Special Agent Dalton further testified that it was

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possible defendant could become a target of the investigation and could

even be charged. (R.T. 12:21-13:8.) Similarly, Special Agent David Dahle
testified that by 2012, the FBI was investigating what the Sheriffs
Department had done in relation to Anthony Brown and our investigation,
(R.T. 270:1-14), and had specifically subpoenaed documents pertaining to
defendant. (RT 271:2-14.) Moreover, and significantly, Special Agent
Dahle testified that the FBI wished to speak with defendant in April 2013
[b]ecause he had information that may have been relevant to the
investigation. (R.T. 272:23-273:4.)
(Govt Oppn 19:7-20:3.) The Court concludes that, viewing the evidence in the light most favorable to
the Government, there was sufficient evidence presented to the jury from which a rational trier of fact
could have found Defendants misstatements material. See Del Toro-Barboza, 673 F.3d at 1143; see
also United States v. Rodriguez-Rodriguez, 840 F.2d 697, 701 (9th Cir. 1988) (concluding that
defendants statement that all occupants of the motor vehicle were U.S. citizens obviously had the
capacity to affect the Border Patrols decision to conduct an inspection and to determine whether
occupants were U.S. citizens). Defendants sufficiency of the evidence challenge to his conviction on
Count 3 therefore fails to raise a substantial issue likely to result in reversal or a new trial.
G. Defendant has not Sustained his Burden to Establish that the Appeal is not for
Purposes of Delay
In enacting the 1984 Bail Act, Congress shifted the burden of proof from the government to the
defendant. Handy, 761 F.2d at 1283. It is therefore Defendants burden to establish that his appeal is
not for purposes of delay. Defendant has not even addressed this element, let alone met his burden to
show that Defendant does not have delay as a purpose. Indeed, prior to sentencing, the Government
expressed its concern that Defendants Alzheimers disease could worsen during any period of delay
and complicate or prevent re-sentencing or further proceedings. The Court shares this concern.
Because Defendant has not met his burden to prove by a preponderance of the evidence that his appeal
is not for purposes of delay, this failure is, on its own, a sufficient and independent basis to deny
Defendants Motion for Bond Pending Appeal.
CONCLUSION
For all of the foregoing reasons, the Court concludes that Defendant has failed to raise a
substantial question likely to result in reversal or new trial. Both individually and collectively, the
Courts evidentiary rulings were not error and did not deprive Defendant of his constitutional right to
present a defense. Additionally, sufficient evidence exists to support Defendants conviction on Count
3 and Defendant failed to satisfy his burden to establish that his appeal is not for purposes of delay.
Even if Defendant has established the existence of a substantial question likely to result in reversal or a
new trial on Count 3, either because of the exclusion of Dr. Spars testimony or the insufficiency of the
evidence to support that charge, reversal or a new trial on that count would not result in the reversal of
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his conviction or a new trial on Counts 1 and 2, and Defendants conduct on those charges, as well as
all of the other 18 U.S.C. 3553 sentencing factors, would still warrant a sentence that includes a term
of imprisonment in excess of the time necessary to resolve any appeal on Count 3. The Court therefore
denies Defendants Motion for Bond Pending Appeal.
IT IS SO ORDERED.

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EXHIBIT C
Anonymous Jury Order
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2
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8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, Case No. CR16-66(A) PA
12 Plaintiff, FINDINGS RE USE OF
ANONYMOUS JURY
13 v.
14 LEROY BACA,
15 Defendant.
16
17
The Court finds that it is appropriate to empanel an anonymous jury in the above-entitled
18
matter for the following reasons:
19
1. Defendant Leroy Baca (defendant), the former Sheriff of the Los Angeles
20
County Sheriffs Department (LASD), is alleged to have engaged in an organized criminal
21
conspiracy in which defendant had the ultimate power and decision-making authority.
22
2. The conspiracy involved multiple high-ranking law enforcement officers.
23
Based on his former position of authority, defendant is extremely likely to have present
24
connections to law-enforcement officers with the ability to access jurors private
25
information. Jurors have expressed apprehension the ability of defendants co-conspirators
26
ability to access their private information and safety concerns in two factually and legally
27
related criminal trials before this Court.
28
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1 3. In this case, Defendant is alleged to have interfered with the judicial process
2 and witnesses by hiding a federal informant, disobeying a federal writ for testimony,
3 tampering with witnesses, and intimidating federal officers. While Mr. Baca is presumed
4 innocent of these charges, others associated with Mr. Baca have been found guilty beyond a
5 reasonable doubt by three separate juries of interfering with the judicial process.
6 4. Defendant, if convicted, may suffer a lengthy period of incarceration of up to
7 ten years imprisonment for obstruction of justice and five years imprisonment for
8 conspiring to do so and for making false statements to governmental agencies 18 U.S.C.
9 1503(b)(3); 18 U.S.C. 371; 18 U.S.C. 1001. Others proven guilty of the conspiracy
10 have been sentenced to terms of imprisonment of up to 60 months.
11 5. This case has already attracted publicity and the Court expects it will be followed by
12 the media, thereby enhancing the possibility that jurors names would become public. Such
13 exposure could lead to potential intimidation and harassment, as well as interference with the
14 judicial process.
15 6. This procedure will also protect the defendant and allow him to receive a fair trial
16 and protect the integrity of the judicial process. In addition, an anonymous jury will ensure that the
17 jurors are not exposed to the litigation history of the case.
18 7. Instructing the jury at the beginning of jury selection and at the beginning of trial that
19 an anonymous jury procedure is commonplace and is being utilized in order to protect juror privacy,
20 to ensure that the parties receive a fair trial, and that the reasons for juror anonymity have nothing to
21 do with the guilt or innocence of the defendant, will safeguard against any potential prejudice that
22 might otherwise result from the use of an anonymous jury procedure.
23 DATED: March 26, 2017 ______________________________________

Percy Anderson
24 UNITED STATES DISTRICT JUDGE
25
26
27
28
-2-
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EXHIBIT D
Expert Declaration
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EXHIBIT E
Jury Instructions
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2 March 13, 2017
3
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5
6
7
8 UNITED STATES DISTRICT COURT
9 CENTRAL DISTRICT OF CALIFORNIA
10
11 UNITED STATES OF AMERICA, No. CR 16-66 PA
12 Plaintiff, JURY INSTRUCTIONS
13 v.
LEROY BACA,
14
Defendant.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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1 Members of the jury, now that you have heard all the evidence, it is my duty to
2 instruct you on the law that applies to this case. A copy of these instructions will be
3 available in the jury room for you to consult.
4 It is your duty to weigh and to evaluate all the evidence received in the case and, in
5 that process, to decide the facts. It is also your duty to apply the law as I give it to you to the
6 facts as you find them, whether you agree with the law or not. You must decide the case
7 solely on the evidence and the law and must not be influenced by any personal likes or
8 dislikes, opinions, prejudices, or sympathy. You will recall that you took an oath promising
9 to do so at the beginning of the case.
10 You must follow all these instructions and not single out some and ignore others; they
11 are all important. Please do not read into these instructions or into anything I may have said
12 or done any suggestion as to what verdict you should return that is a matter entirely up to
13 you.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-1-
(64 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
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4 of 33
ID #:5899
1 The indictment is not evidence. The defendant has pleaded not guilty to the charges.
2 The defendant is presumed to be innocent unless and until you find, at the end of the trial,
3 after deliberations, that the government proved the defendant guilty beyond a reasonable
4 doubt. In addition, the defendant does not have to testify or present any evidence to prove
5 innocence. The government has the burden of proving every element of the charges beyond
6 a reasonable doubt.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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-2-
(65 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
4 of Page
32 Page
5 of 33
ID #:5900
1 A defendant in a criminal case has a constitutional right not to testify. You may not
2 draw any inference of any kind from the fact that the defendant did not testify.
3
4
5
6
7
8
9
10
11
12
13
14
15
16
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18
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20
21
22
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-3-
(66 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
5 of Page
32 Page
6 of 33
ID #:5901
1 Proof beyond a reasonable doubt is proof that leaves you firmly convinced that a
2 defendant is guilty. It is not required that the government prove guilt beyond all possible
3 doubt. A reasonable doubt is a doubt based upon reason and common sense and is not based
4 purely on speculation. It may arise from a careful and impartial consideration of all the
5 evidence, or from lack of evidence.
6 If after a careful and impartial consideration of all the evidence, you are not
7 convinced beyond a reasonable doubt that the defendant is guilty, it is your duty to find the
8 defendant not guilty. On the other hand, if after a careful and impartial consideration of all
9 the evidence, you are convinced beyond a reasonable doubt that the defendant is guilty, it is
10 your duty to find the defendant guilty.
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
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-4-
(67 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
6 of Page
32 Page
7 of 33
ID #:5902
1 The evidence you are to consider in deciding what the facts are consists of:
2 (1) the sworn testimony of any witness;
3 (2) the exhibits received in evidence; and
4 (3) any facts to which the parties have agreed.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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28
-5-
(68 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
7 of Page
32 Page
8 of 33
ID #:5903
1 In reaching your verdict you may consider only the testimony and exhibits received in
2 evidence. The following things are not evidence and you may not consider them in deciding
3 what the facts are:
4 1. Questions, statements, objections, and arguments by the lawyers are not
5 evidence. The lawyers are not witnesses. Although you must consider a
6 lawyers questions to understand the answers of a witness, the lawyers
7 questions are not evidence. Similarly, what the lawyers have said in their
8 opening statements, closing arguments, and at other times is intended to help
9 you interpret the evidence, but it is not evidence. If the facts as you remember
10 them differ from the way the lawyers state them, your memory of them
11 controls. Please do not read into anything I may have said or done, or any
12 rulings I have made, including during the closing arguments of the defense and
13 government, any suggestion as to what verdict you should return or what the
14 facts are those are matters entirely up to you.
15 2. Any testimony that I have excluded, stricken, or instructed you to disregard is
16 not evidence. In addition, some evidence was received only for a limited
17 purpose; when I have instructed you to consider certain evidence in a limited
18 way, you must do so.
19 3. Anything you may have seen or heard when the court was not in session is not
20 evidence. You are to decide the case solely on the evidence received at the
21 trial.
22
23
24
25
26
27
28
-6-
(69 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
8 of Page
32 Page
9 of 33
ID #:5904
1 Evidence may be direct or circumstantial. Direct evidence is direct proof of a fact,

2 such as testimony by a witness about what that witness personally saw or heard or did.
3 Circumstantial evidence is indirect evidence, that is, it is proof of one or more facts from
4 which you can find another fact.
5 You are to consider both direct and circumstantial evidence. Either can be used to
6 prove any fact. The law makes no distinction between the weight to be given to either direct
7 or circumstantial evidence. It is for you to decide how much weight to give to any evidence.
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-7-
(70 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301
ID: 10519114,
Filed 03/13/17
DktEntry:
Page2-6,
9 ofPage
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10 of ID
33 #:5905
1 In deciding the facts in this case, you may have to decide which testimony to believe
2 and which testimony not to believe. You may believe everything a witness says, or part of it,
3 or none of it.
4 In considering the testimony of any witness, you may take into account:
5 (1) the witnesss opportunity and ability to see or hear or know the things testified
6 to;
7 (2) the witnesss memory;
8 (3) the witnesss manner while testifying;
9 (4) the witnesss interest in the outcome of the case, if any;
10 (5) the witnesss bias or prejudice, if any;
11 (6) whether other evidence contradicted the witnesss testimony;
12 (7) the reasonableness of the witnesss testimony in light of all the evidence; and
13 (8) any other factors that bear on believability.
14 The weight of the evidence as to a fact does not necessarily depend on the number of
15 witnesses who testify. What is important is how believable the witnesses were, and how
16 much weight you think their testimony deserves.
17
18
19
20
21
22
23
24
25
26
27
28
-8-
(71 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
10 of
Page
32 11
Page
of 33
ID #:5906
1 You are here only to determine whether the defendant is guilty or not guilty of the
2 charges in the indictment. The defendant is not on trial for any conduct or offense not
3 charged in the indictment.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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-9-
(72 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
11 of
Page
32 12
Page
of 33
ID #:5907
1 A separate crime is charged against the defendant in each count. You must decide
2 each count separately. Your verdict on one count should not control your verdict on any
3 other count.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-10-
(73 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
12 of
Page
32 13
Page
of 33
ID #:5908
1 The indictment charges that the offenses were committed on or about certain dates.
2 Although it is necessary for the government to prove beyond a reasonable doubt that the
3 offenses were committed on a date reasonably near the date alleged in the indictment, it is
4 not necessary for the government to prove that the offenses were committed precisely on the
5 dates charged.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-11-
(74 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
13 of
Page
32 14
Page
of 33
ID #:5909
1 You have heard evidence that one or more witnesses may have given a prior
2 inconsistent statement. You may consider this evidence in deciding whether or not to
3 believe these witnesses and how much weight to give to the testimony of these witnesses.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-12-
(75 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
14 of
Page
32 15
Page
of 33
ID #:5910
1 You have heard testimony from:

2 ! William Tom Carey, a witness who: (a) pleaded guilty to a crime arising out of the
3 same events for which the defendant is on trial; and (b) hopes to receive a recommendation
4 of leniency at sentencing by the United States.
5 ! Mickey Manzo, a witness who: (a) was convicted of crimes arising out of the same
6 events for which the defendant is on trial; and (b) hopes to have a re-sentencing hearing in
7 which he would seek to receive favorable treatment from the United States.
8 ! James Sexton, a witness who: (a) was convicted of crimes arising out of the same
9 events for which the defendant is on trial; and (b) received favorable treatment at a
10 re-sentencing hearing from the United States.
11 For these reasons, in evaluating the testimony of these witnesses, you should consider
12 the extent to which or whether their testimony may have been influenced by any of these
13 factors. In addition, you should examine the testimony of these witnesses with greater
14 caution than that of other witnesses.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-13-
(76 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
15 of
Page
32 16
Page
of 33
ID #:5911
1 You have heard evidence that Mr. Manzo, Mr. Carey, Mr. Sexton, and Mr. Thompson
2 were convicted of crimes arising out of the same events for which the defendant is on trial.
3 The convictions of these witnesses are not evidence against the defendant, and you may
4 consider their convictions only in determining the witnesses believability.
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-14-
(77 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
16 of
Page
32 17
Page
of 33
ID #:5912
1 You have heard evidence and argument regarding the maximum possible sentences
2 for crimes that certain witnesses were charged with committing, and certain sentences that
3 the government has recommended or may recommend. Although you should consider that
4 evidence and argument in evaluating the testimony of such witnesses, the punishment to be
5 imposed for any crime is exclusively for the Court to decide. No witness who testified in
6 this case was charged with or convicted of a crime for which any term of imprisonment or
7 fine must be imposed, and the Court is in no way required to impose any sentence that the
8 government recommends. The Court considers many factors, including the seriousness of
9 the offense and whether the defendant has a criminal history, in imposing the sentence.
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-15-
(78 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
17 of
Page
32 18
Page
of 33
ID #:5913
1 You have heard evidence and argument regarding the federal governments
2 investigation of allegations of abuse and corruption by the Los Angeles County Sheriff's
3 Department (LASD), including its use of an informant and an undercover operation. Law
4 enforcement officials may engage in stealth and deception, such as the use of informants and
5 undercover agents, in order to investigate criminal activities. Undercover agents and
6 informants may use false names and appearances and assume the roles of members in
7 criminal organizations.
8 Local law enforcement departments, including the LASD, do not have authority to
9 direct or control federal investigations, including those by the FBI, the U.S. Attorneys
10 Office, or a federal grand jury. In order to investigate crime, federal law enforcement
11 agencies are entitled to choose their own tactics and strategies, conduct their own
12 evaluations of risks, assign their own personnel, and make their own decisions regarding
13 whether to inform others, including targets, that an investigation is underway.
14 When an undercover investigation involves the use of informants and undercover
15 agents, neither the law enforcement officers conducting the operation nor the informants
16 assisting in the investigation become co-conspirators with the target of the undercover
17 activity.
18 It is not for you to decide whether or how the federal government should have
19 conducted its investigation. Your duty is to decide whether the government has proved
20 beyond a reasonable doubt that the defendant committed the crimes charged in the
21 indictment.
22
23
24
25
26
27
28
-16-
(79 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
18 of
Page
32 19
Page
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ID #:5914
1 A local officer has the authority to investigate potential violations of state law. This
2 includes the authority to investigate potential violations of state law by federal agents. A
3 local officer, however, may not use this authority to engage in what ordinarily might be
4 normal law enforcement practices, such as interviewing witnesses, attempting to interview
5 witnesses or moving inmates, for the purpose of obstructing justice.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
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28
-17-
(80 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
19 of
Page
32 20
Page
of 33
ID #:5915
1 During the trial, certain charts and summaries were shown to you in order to help
2 explain the evidence in the case. These charts and summaries were not admitted in evidence
3 and will not go into the jury room with you. They are not themselves evidence or proof of
4 any facts. If they do not correctly reflect the facts or figures shown by the evidence in the
5 case, you should disregard these charts and summaries and determine the facts from the
6 underlying evidence.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-18-
(81 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
20 of
Page
32 21
Page
of 33
ID #:5916
1 Certain charts and summaries have been admitted in evidence. Charts and summaries
2 are only as good as the underlying supporting material. You should, therefore, give them
3 only such weight as you think the underlying material deserves.
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
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20
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22
23
24
25
26
27
28
-19-
(82 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
21 of
Page
32 22
Page
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ID #:5917
1 The defendant is charged in Count One of the indictment with conspiring to obstruct
2 justice, in violation of Section 371 of Title 18 of the United States Code. In order for the
3 defendant to be found guilty of that charge, the government must prove each of the
4 following elements beyond a reasonable doubt:
5 First, beginning on or about August 18, 2011, and ending on or about September 26,
6 2011, there was an agreement between two or more persons to commit the crime of
7 obstruction of justice;
8 Second, the defendant became a member of the conspiracy knowing its objects and
9 intending to help accomplish it; and
10 Third, one of the members of the conspiracy performed at least one overt act for the
11 purpose of carrying out the conspiracy.
12 A conspiracy is a kind of criminal partnership - an agreement of two or more persons
13 to commit one or more crimes. The crime of conspiracy is the agreement to do something
14 unlawful; it does not matter whether the crime agreed upon was committed.
15 For a conspiracy to have existed, it is not necessary that the conspirators made a
16 formal agreement or that they agreed on every detail of the conspiracy. It is not enough,
17 however, that they simply met, discussed matters of common interest, acted in similar ways,
18 or perhaps helped one another. You must find that there was a plan to commit the crime of
19 obstruction of justice as alleged in the indictment.
20 One becomes a member of a conspiracy by willfully participating in the unlawful plan
21 with the intent to advance or further some object or purpose of the conspiracy, even though
22 the person does not have full knowledge of all the details of the conspiracy. Furthermore,
23 one who willfully joins an existing conspiracy is as responsible for it as the originators. On
24 the other hand, one who has no knowledge of a conspiracy, but happens to act in a way
25 which furthers the object or purpose of the conspiracy, does not thereby become a
26
27
28 (Page 1 of 2)
-20-
(83 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
22 of
Page
32 23
Page
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ID #:5918
1 conspirator. Similarly, a person does not become a conspirator merely by associating with
2 one or more persons who are conspirators, nor merely by knowing that a conspiracy exists.
3 An overt act does not itself have to be unlawful. A lawful act may be an element of a
4 conspiracy if it was done for the purpose of carrying out the conspiracy. The government is
5 not required to prove that the defendant personally did one of the overt acts.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28 (Page 2 of 2)
-21-
(84 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
23 of
Page
32 24
Page
of 33
ID #:5919
1 The defendant is charged in Count Two of the indictment with obstruction of justice
2 in violation of Section 1503 of Title 18 of the United States Code. In order for the
3 defendant to be found guilty of that charge, the government must prove each of the
4 following elements beyond a reasonable doubt:
5 First, the defendant influenced, obstructed, or impeded, or tried to influence, obstruct,
6 or impede a federal grand jury investigation; and
7 Second, the defendant acted corruptly, meaning the defendant had knowledge of the
8 federal grand jury investigation and intended to obstruct justice.
9 The government does not need to prove that actual obstruction of the pending grand
10 jury investigation occurred, so long as you find that the defendant acted with the purpose of
11 obstructing the pending grand jury investigation, and he knew that his actions had the natural
12 and probable effect of interfering with the pending grand jury investigation, and the
13 government proves the elements of the offense beyond a reasonable doubt.
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-22-
(85 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
24 of
Page
32 25
Page
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ID #:5920
1 For the conspiracy charge in Count One and the obstruction of justice charge in
2 Count Two, the government need not prove that the defendants sole or even primary
3 intention was to obstruct justice so long as the government proves beyond a reasonable
4 doubt that one of the defendants intentions was to obstruct justice. The defendants
5 intention to obstruct justice must be substantial.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-23-
(86 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
25 of
Page
32 26
Page
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ID #:5921
1 The government may establish the FBI was acting as an arm of the grand jury by
2 showing the FBI agents: (1) undertook the investigation to supply information to the grand
3 jury in direct support of a grand jury investigation; (2) were integrally involved in the
4 investigation; and (3) undertook the investigation with the intention of presenting evidence
5 before the grand jury.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-24-
(87 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
26 of
Page
32 27
Page
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ID #:5922
1 The defendant is charged in Count Three of the indictment with knowingly and
2 willfully making false statements in a matter within the jurisdiction of a governmental
3 agency or department in violation of Section 1001 of Title 18 of the United States Code. In
4 order for the defendant to be found guilty of that charge, the government must prove each of
5 the following elements beyond a reasonable doubt with regard to at least one of the
6 statements charged as false in Count Three, with all of you agreeing as to which particular
7 statement meets all of these elements:
8 First, the defendant made a false statement in a matter within the jurisdiction of the
9 Federal Bureau of Investigation or the United States Attorneys Office;
10 Second, the defendant acted willfully; that is, the defendant acted deliberately and
11 with knowledge both that the statement was untrue and that his conduct was unlawful; and
12 Third, the statement was material to the activities or decisions of the Federal Bureau
13 of Investigation or the United States Attorneys Office; that is, it had a natural tendency to
14 influence, or was capable of influencing, the agencys decisions or activities.
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-25-
(88 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
27 of
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32 28
Page
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ID #:5923
1 When you begin your deliberations, elect one member of the jury as your foreperson
2 who will preside over the deliberations and speak for you here in court.
3 You will then discuss the case with your fellow jurors to reach agreement if you can
4 do so. Your verdict, whether guilty or not guilty, must be unanimous.
5 Each of you must decide the case for yourself, but you should do so only after you
6 have considered all the evidence, discussed it fully with the other jurors, and listened to the
7 views of your fellow jurors.
8 Do not be afraid to change your opinion if the discussion persuades you that you
9 should. But do not come to a decision simply because other jurors think it is right.
10 It is important that you attempt to reach a unanimous verdict but, of course, only if
11 each of you can do so after having made your own conscientious decision. Do not change
12 an honest belief about the weight and effect of the evidence simply to reach a verdict.
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
-26-
(89 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
DktEntry:
Page2-6,
28 of
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32 29
Page
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ID #:5924
1 Because you must base your verdict only on the evidence received in the case and on
2 these instructions, I remind you that you must not be exposed to any other information about
3 the case or to the issues it involves. Except for discussing the case with your fellow jurors
4 during your deliberations:
5 Do not communicate with anyone in any way and do not let anyone else communicate
6 with you in any way about the merits of the case or anything to do with it. This includes
7 discussing the case in person, in writing, by phone or electronic means, via email, text
8 messaging, or any Internet chat room, blog, website, social media, or other feature. This
9 applies to communicating with your family members, your employer, the media or press, and
10 the people involved in the trial. If you are asked or approached in any way about your jury
11 service or anything about this case, you must respond that you have been ordered not to
12 discuss the matter and to report the contact to the court.
13 Do not read, watch, or listen to any news or media accounts or commentary about the
14 case or anything to do with it; do not do any research, such as consulting dictionaries,
15 searching the Internet or using other reference materials; and do not make any investigation
16 or in any other way try to learn about the case on your own.
17 The law requires these restrictions to ensure the parties have a fair trial based on the
18 same evidence that each party has had an opportunity to address. A juror who violates these
19 restrictions jeopardizes the fairness of these proceedings. If any juror is exposed to any
20 outside information, please notify the court immediately.
21
22
23
24
25
26
27
28
-27-
(90 of 93)
Case 2:16-cr-00066-PA
07/24/2017,
301ID: Filed
10519114,
03/13/17
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1 Some of you have taken notes during the trial. Whether or not you took notes, you
2 should rely on your own memory of what was said. Notes are only to assist your memory.
3 You should not be overly influenced by your notes or those of your fellow jurors.
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1 The punishment provided by law for this crime is for the court to decide. You may
2 not consider punishment in deciding whether the government has proved its case against the
3 defendant beyond a reasonable doubt.
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1 A verdict form has been prepared for you. After you have reached unanimous
2 agreement on a verdict, your foreperson should complete the verdict form according to your
3 deliberations, sign and date it, and advise the Court Security Officer that you are ready to
4 return to the courtroom.
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1 If it becomes necessary during your deliberations to communicate with me, you may
2 send a note through the Court Security Officer, signed by any one or more of you. No
3 member of the jury should ever attempt to communicate with me except by a signed writing,
4 and I will respond to the jury concerning the case only in writing or here in open court. If
5 you send out a question, I will consult with the lawyers before answering it, which may take
6 some time. You may continue your deliberations while waiting for the answer to any
7 question. Remember that you are not to tell anyone including me how the jury stands,
8 numerically or otherwise, on any question submitted to you, including the question of the
9 guilt of the defendant, until after you have reached a unanimous verdict or have been
10 discharged.
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7-24-17 - Baca Appeal To 9th On Bail

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7-24-17 - Baca Appeal To 9th On Bail

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Case: 17-50192, 07/24/2017, ID: 10519114, DktEntry: 2-1, Page 1 of 27

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Appeal from the United States District Court

MOTION FOR BAIL PENDING APPEAL

Attorneys for Appellant Leroy Baca

I. The district court erroneously empaneled an anonymous jury under

II. The district court excluded defense evidence in violation of the

A. Rahm error exclusion of Alzheimers evidence. . . . . . . . . . . . . . . . 6

III. The district court sua sponte gave a non-pattern instruction on

IV. The district court gave a non-pattern instruction on the relationship

V. There was insufficient evidence to sustain the 1001 conviction.. . . . . . . . . 18

Bronston v. United States,

Burrage v. United States,

Levine v. United States,

Northern Mariana Islands v. Bowie,

Quercia v. United States,

Smith v. State of Illinois,

Starr v. United States,

United States v. Aguilar,

United States v. Barona,

United States v. Bernard,

United States v. Christian,

United States v. Cohen,

United States v. Finn,

United States v. Gaudin,

United States v. Gergen,

United States v. Good,

United States v. Handy,

United States v. Miller,

United States v. Morales,

United States v. Murphy,

United States v. Paguio,

United States v. Pazsint,

United States v. Rahm,

United States v. Ramirez,

United States v. Rodriguez-Rodriguez,

United States v. Sanchez,

United States v. Sandoval-Mendoza,

United States v. Schuler,

United States v. Shryock,

United States v. Smith,

United States v. Stever,

United States v. Thompson,

United States v. Vallejo,

United States v. Whitman,

Williams v. United States,

Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Fed. R. Evid. 702. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

9th Cir. R. 9-1.2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

The only question is whether he will present substantial or debatable claims

In February 2016, the government filed an information alleging that Mr.

Baca made a false statement in a 2013 interview conducted by federal agents in

appearance bond. He agreed to plead guilty with a government recommendation

A grand jury then returned a superseding indictment charging the 1001

offense as Count 3 and adding conspiratorial and substantive obstruction of justice

charges, 18 U.S.C. 371, 1503(a), as Counts 1 and 2. The indictment alleged

governments recommendation, and denied bail pending appeal. Ex. B; CR 376.

I. The district court erroneously empaneled an anonymous jury under United

imprisonment, and the case had attracted media coverage. Ex. C.

The district court erred under Sanchez, 74 F.3d at 564-65, where an