5-13-16 -- reply brief appeal -- long & craig

8/16/2019 5-13-16 -- Reply Brief Appeal -- Long & Craig

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Selected docket entries for case 14−50441

Generated: 05/13/2016 14:47:31

Filed Document Description Page Docket Text

05/13/2016 91 Main Document 2 Submitted (ECF) Reply Brief for review. Submitted byAppellant Maricela Long in 14−50441, Appellant Scott

Craig in 14−50449. Date of service: 05/13/2016. [9976353]

[14−50440, 14−50441, 14−50442, 14−50446, 14−50449,

14−50455] −−[COURT UPDATE: Updated docket text to

reflect correct brief type. 05/13/2016 by TYL] (Ivens, Gail)

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https://ecf.ca9.uscourts.gov/docs1/009128039569


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UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,v.

GERARD SMITH,Defendant-Appellant.

Case No. 14-50440D.C. No. 2:13-cr-00819-PA-3

(C.D. Cal., Los Angeles)

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.MARICELA LONG,Defendant-Appellant.

Case No. 14-50441

D.C. No. 2:13-cr-00819-PA-7(C.D. Cal., Los Angeles)


v.GREGORY THOMPSON,

Defendant-Appellant.

Case No. 14-50442



v.MICKEY MANZO,


Case No. 14-50446



v.SCOTT CRAIG,


Case No. 14-50449



v.STEPHEN LEAVINS,Defendant-Appellant.

Case No. 14-50455


________________________________

Appellants Scott Craig and Maricela Long’s Supplemental Joint Reply Brief

________________________________

Case: 14-50441, 05/13/2016, ID: 9976353, DktEntry: 91, Page 1 of 36

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KAREN L. LANDAULaw Offices of Karen L. Landau2626 Harrison StreetOakland, CA 94612

Telephone: 510-839-9230

Attorney for Scott Craig

HILARY POTASHNERFederal Public DefenderGAIL IVENSELIZABETH RICHARDSON-ROYER

Deputy Federal Public Defenders321 East 2nd StreetLos Angeles, CA 90012-4202Telephone 213-894-5022

Attorneys for Maricela Long


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TABLE OF CONTENTS

PAGE

i

ARGUMENT ......................................................................................................... 1

I. The Court Committed Prejudicial Instructional Error on theFalse Statement Counts. ............................................................................... 1

II. The Mistaken Exclusion of Defense Evidence Regarding LegitimatePolice Investigative Procedures Prejudiced the ICIB Defendants. ................. 5

A. The Error Was Not Harmless ........................................................ 9

III.

The Court Below Infringed on Mr. Craig’s Sixth AmendmentRight to Testify in his Own Defense. .......................................................... 11

IV. There was Insufficient Evidence that Craig and Long’s Statementsto Marx were Material. ............................................................................... 15

V. The Evidence as to Long Was Insufficient on all Counts. ............................ 19

VI. The District Court Procedurally Erred in Imposing an UpwardAdjustment on Craig for Holding a Supervisory Role in the Offense. .......... 23

VII. CONCLUSION ......................................................................................... 28


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TABLE OF AUTHORITIES

PAGE(S)

ii

Federal Cases

Ajoku v. United States ,

134 S. Ct. 1872 (2014) ........................................................................................ 3

Armstrong v. Exceptional Child Ctr., Inc.,135 S. Ct. 1378 (2015) ....................................................................................... 21

Jackson v. Virginia,443 U.S. 307 (1979) .................................................................................... 19, 20

Mesa v. California,489 U.S. 121 (1989) ............................................................................................ 4

Miller v. Fairchild Industries ,885 F.2d 498 (9th Cir. 1989) ............................................................................ 12

Pennsylvania v. Nelson,350 U.S. 497 (1956) ..........................................................................................20

Puente Arizona v. Arpaio,No. 15-15211, slip op. (9th Cir. May 2, 2016) ...................................................... 4

United States v. Aguilar ,515 U.S. 593 (1995) .......................................................................................... 24

United States v. Bonds ,784 F.3d 582 (9th Cir. 2015) ............................................................................ 19

United States v. Cummings ,245 Fed. App’x 616 (9th Cir. 2007) ................................................................. 18

United States v. De Rosa,

783 F.2d 1401 (9th Cir. 1986) ........................................................................... 17

United States v. Facchini ,874 F.2d 638 (9th Cir. 1989) ............................................................................ 18

United States v. Gallagher ,99 F.3d 329 (9th Cir. 1996) ............................................................................... 12


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PAGE(S)

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Federal Cases Continued

United States v. Goldfine ,

538 F.2d 815 (9th Cir. 1976) ............................................................................. 18

United States v. Haischer ,780 F.3d 1277 (9th Cir. 2015) ............................................................................. 5

United States v. Hinkson,585 F.3d 1247 (9th Cir. 2009) ............................................................................ 5

United States v. Jordan,291 F.3d 1091 (9th Cir. 2002) ........................................................................... 27

United States v. King ,735 F.3d 1098 (9th Cir. 2013) ........................................................................... 18

United States v. Ladum,141 F.3d 1328 (9th Cir. 1998) ........................................................................... 23

United States v. Lopez-Sandoval ,146 F.3d 712 (9th Cir. 1998) ............................................................................. 26

United States v. Magallon-Lopez ,No. 14-30249, slip op. (9th Cir. Mar. 31, 2016) .................................................. 5

United States v. Mares-Molina,913 F.2d 770 (9th Cir. 1990) ............................................................................. 27

United States v. Mayberry,913 F.2d 719 (9th Cir. 1990) ............................................................................. 18

United States v. Mustread ,

42 F.3d 1097 (7th Cir. 1994) ............................................................................. 27

United States v. Ponce ,51 F.3d 820 (9th Cir. 1995) ......................................................................... 27, 28

United States v. Rasheed ,663 F.2d 843 (9th Cir. 1981) ............................................................................. 22


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PAGE(S)

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Federal Cases Continued

United States v. Thorson,

633 F.3d 312 (4th Cir. 2011) ............................................................................. 27

United States v. Waters ,627 F.3d 345 (9th Cir. 2010) .............................................................................. 5

United States v. Whitney,673 F.3d 965 (9th Cir. 2012) ............................................................................. 26

Williams v. Borg ,139 F.3d 737 (9th Cir. 1998) ............................................................................. 12

Federal Statutes

18 U.S.C. § 1001 .......................................................................................... 1, 4, 5, 6

18 U.S.C. § 1503 .......................................................................................... 5, 11, 23

28 U.S.C. § 1442(a)(1) .......................................................................................... 21

Fed. R. Evid. 403 .................................................................................................... 5

Fed. R. Evid. 611 ................................................................................................... 13

Fed. R. Evid. 701 ..................................................................................................... 8

Fed. R. Evid. 702 .................................................................................................... 8

U.S. Const. amend. VI ..................................................................................... 11, 12

U.S.S.G. § 3B1.1 App. Note 3 ............................................................................... 27

U.S.S.G. § 3B1.1 App. Note 4 (1994, 2006, and 2013)........................................... 27

Miscellaenous

www.fbiagentedu.org/fbi-requirements .................................................................. 4

www.lasdcareers.org/requirements ........................................................................ 4


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ARGUMENT

I. The Court Committed Prejudicial Instructional Error on the False

Statement Counts.

In their supplemental joint opening brief (“SJOB”), Craig and Long argued

that the good faith instruction given to the jury inadequately defined the specific

intent element of making a false statement under 18 U.S.C. § 1001. SJOB at 5-9.

Further, they explained that the inadequate good faith instruction, combined with

the dual purpose instruction, reduced the government’s burden of proof on the

false statement charges and wrongly authorized conviction even if the jury found

good faith. SJOB at 9-14.

The government initially responds that the dual purpose instruction was

irrelevant to the false statement charges, contending that the instruction

specifically referenced obstruction of justice. GAB 88. This contention disregards

the arguments made regarding the jury instructions, the nature of the disputed and

refused instructions, and the evidence and argument, under which obstruction and

false statements were often treated interchangeably.When the proposed instructions were discussed, the government took the

position that the dual purpose instruction applied equally to the false statement

counts. ER 1A: 59-60, 165-66. The district court agreed. Id.1 When discussing the

instructions for the false statement charge, defense counsel requested an

amendment requiring that a defendant’s intent or purpose, as required by the false

statement charge, had to be substantial. The instruction refused by the court on

substantial purpose, ER 1A: 59, was designed to ameliorate the problems posed by

1 Craig did not object specifically to the dual purpose instruction, butrequested an instruction stating that conviction must be based on a substantialpurpose. ER 1A: 167.


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the dual purpose instruction in the context of both the obstruction of justice and

false statement charges.2

Furthermore, the court below refused a clear good faith instruction as to the

false statement charges. This allowed the government to argue, as it did, that the

defendants had to be convicted so long as they knew they violated the law by

making a false statement to an FBI agent, even if they did so in a good faith effort to

carry out what they believed to be a legitimate investigation. The government’s

closing argument demonstrates this point :

Willfulness in this context means the defendant made a

statement voluntarily and purposely. Nobody forced

them, and also knowing that it was unlawful and with the

purpose to disobey or disregard the law. There’s no need

for us to prove that either defendant was aware that he or

she was violating a specific law. Defendants were aware

of the unlawful nature of their lies and said them anyway.

First of all, these two defendants are veteran lawenforcement officers. You can infer that they know what

the law is. They know it’s a crime to lie to federal

investigators. But we have more than that in this case. We

have flat-out conversation about the crime of lying to the

FBI in the August 30th Gilbert Michel interview where

Defendant Leavins talks about lying to the FBI being a

crime.

2 The fact that the defense later agreed with the false statement instruction,after the substantial purpose amendment had been refused, does not waive theobjection. It was clear that the government would not acquiesce in the substantialpurpose clause and the court would not amend the instruction.


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ER 1809.

This passage clearly demonstrates the inadequacy of the court’s good faith

instruction: it left no room for a defense argument that Craig and Long knowinglymade false statements in a good faith effort to carry out what they reasonably

believed were lawful orders in the context of an apparently legitimate investigation.

Indeed, this passage powerfully shows the necessity of a defense instruction on the

public authority defense and the intersection of such a defense with good faith. See

JOB at 43-44.

The government compounded the prejudice from the erroneous instruction

when it pointed out that Craig, in his grand jury testimony, admitted that he used a

ruse in an effort to encourage SA Marx to talk to him. ER 1863-64. According to the

government, this testimony proved Craig was guilty: he admitted his statement was

inaccurate, he knew it was illegal, and that was that. Given that Craig and Long’s

only defense to the false statement charges was that they made those statements in

a good faith effort to carry out what they believed were lawful orders, the

instruction as given denied them a defense.

The government supports the adequacy of the instructions by arguing that

the district court properly instructed on willfulness, GAB 92-93, and asserts that

the defendants lacked a defense because Carey and Tanaka denied ordering Craig

and Long to lie to the FBI. GAB 183. Finally, the government claims that

defendants Craig and Long assuredly knew that lying to the FBI is a crime. GAB 93.

These arguments lack merit.

To begin with, lying to the FBI is not a crime. The criminal charge of false

statement has four requirements, including the intentional violation of a known

legal duty, that is, making a false statement with the intention to disregard the law.

Ajoku v. United States, 134 S. Ct. 1872 (2014). A false statement made with a

different purpose is therefore not criminal. It is far from clear that local law


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enforcement officers, including Craig and Long, understood that lying to the FBI

was a crime under any circumstances. Unlike FBI agents, local law enforcement

officers need not have a college degree, but need only have graduated from high

school in order to attend the police academy.3 Moreover, the law regarding state

versus federal jurisdiction is particularly complex, and is poorly understood by

many lawyers, let alone police officers. See generally, Mesa v. California, 489 U.S.

121, 129-33 (1989); Puente Arizona v. Arpaio, No. 15-15211, slip op. (9th Cir. May 2,

2016) (ruling that Arizona identity theft law was not facially preempted by federal

immigration law); JOB 140-49.

Furthermore, a conviction under 18 U.S.C. § 1001 requires that the false

statement be material. It’s more than questionable whether two lower-level LASD

investigators would believe that falsely threatening to arrest a FBI agent—at the

behest of their superiors—in order to obtain some information, would affect the

FBI’s decision-making. A properly instructed jury could easily have determined

they did not.

If anything, the government’s arguments demonstrate the tremendous needfor an adequate defense theory instruction on public authority, which would have

applied equally to the false statement charges, and an adequate good faith

instruction stating that good faith was inconsistent with a corrupt or willful intent

and constituted a complete defense. The dual purpose instruction further

undermined the government’s burden and heightened Craig and Long’s ability to

defend themselves against the false statement charges. The totality of the

instructional errors require reversal of the convictions on counts 1, 5, and 6.

3 Compare www.fbiagentedu.org/fbi-requirements with

www.lasdcareers.org/requirements (last visited 5/13/2016).


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II. The Mistaken Exclusion of Defense Evidence Regarding Legitimate

Police Investigative Procedures Prejudiced the ICIB Defendants.

The district court also abused its discretion when it excluded testimony

describing the commonplace use of deceptive investigative techniques by law

enforcement agents. This exclusion affected all counts of conviction. See SJOB at

20-23. Such evidence would have corroborated Craig and Long’s defense that they

lacked the specific intent required to violate §§ 1001 and 1503. It would have shown

they engaged in activities that they used routinely and believed were lawful with

respect to the § 1001 counts. See United States v. Magallon-Lopez, No. 14-30249,

slip op. (9th Cir. Mar. 31, 2016) (holding that police officers are allowed to lie to

suspects).

The government relies heavily on the deference that this Court extends to a

lower court’s evidentiary rulings. See , e.g., GAB 148-49. But such deference is not

appropriate where, as here, the rulings fall afoul of the standard established in

United States v. Hinkson, 585 F.3d 1247, 1262 (9th Cir. 2009) (en banc).

“[T]he exclusion of evidence offered by the defendant in a criminalprosecution under Rule 403 is ‘an extraordinary remedy to be used sparingly.’”

United States v. Haischer, 780 F.3d 1277, 1282 (9th Cir. 2015). Rule 403’s function

is limited to excluding matters of “scant or cumulative probative force, dragged in

by the heels for the sake of its prejudicial effect.” Id. (quoting United States v.

Hankey, 203 F.3d 1160, 1172 (9th Cir. 2000) (quoting United States v. Mills, 704

F.2d 1553, 1559 (11th Cir. 1983)). It is an abuse of discretion to exclude evidence

that is intertwined with issues of guilt or innocence. Haischer, 780 F.3d at 1282; see

also United States v. Waters, 627 F.3d 345, 357-58 (9th Cir. 2010).

The government contends that all of the objected to evidence was excluded

on proper, formal grounds. GAB 193. The government also argues, incorrectly, that

the court did not exclude evidence of the use of deceptive techniques in this case.


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GAB 191. Finally, the government contends that since minimal evidence of ruses

and deceptive techniques was introduced, any error was harmless. GAB 195-98.

The government’s contentions lack merit.

First, the government mischaracterizes the record below by arguing that the

court did not entirely preclude evidence of ruses and deceptive tactics and

suggesting that the defense did not really attempt to introduce any evidence that

was improperly excluded. GAB 193. At the outset of the trial, the district court

granted the government’s motion to preclude the defense from questioning FBI

witnesses about their practice of lying or using ruses. ER 293, 298.4 The ruling was

comprehensive: the court stated that the investigators’ intent in engaging in

deception was irrelevant for purposes § 1001 because that statute required only that

the statement in question be made “deliberately and with knowledge.” ER 297.

The court clearly ruled based on a mistaken understanding of the mens rea required

for a § 1001 conviction, thus committing an error of law (by definition an abuse of

discretion). The fact that at the end of the trial, long after this ruling, the court

ultimately instructed on willfulness does not ameliorate the earlier erroneous legalruling excluding evidence. Further, in practice, the court excluded testimony about

LASD’s routine use of deceptive investigative techniques. See ER 1222, 1322,

1324-25, 1334, 1433-34, 1717.

Second, the government wrongly contends that the defendants did not argue

that the evidence of deceptive tactics was relevant to their state of mind. To the

contrary, defense counsel expressly argued:

4 The government’s contention that parties’ arguments made the correct

mens rea clear to the court misstates the record. At the time of the court’s ruling,

the government did not correct the court’s misunderstanding of the mens rea

required for a conviction of making a false statement. See ER 297-98.


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I’m not saying I’m going to argue that my client should

be allowed—should be allowed to lie to a federal officer.

But I think I should be allowed to argue and present the

evidence that my client should be allowed to use ruses

and if that means lie to a suspect, whoever that suspect

may be, I think we’re allowed to do that.

ER 295. AUSA Fox disagreed, saying there was little probative value, and that the

evidence was not relevant to Long’s state of mind. Id. The court excluded the

evidence. The error is preserved.

Third, the government asserts that the evidence was excluded pursuant to

the established rules of evidence. GAB 193-94. But, the court’s reasons for

sustaining the government’s objections were invalid. For example, the government

points to the court sustaining its objection to a defense question to witness Tanaka

regarding whether he was familiar with ruses, as a proper exercise of discretion.

GAB 194. The government’s example disregards the applicable context: defense

counsel posed this question in an effort to lay a foundation for further questions on

whether Tanaka would’ve expected ICIB investigators to use deceptive tactics.

The court’s sustaining the objection completely closed the door to such

questioning.

The same is true of the objection the court sustained to questions posed to

witness Carey. GAB 194-95. The government argues that these objections were

sustained on the proper basis that they called for improper opinion. The contrary is

true: Carey’s opinion on what tactics were normally used by ICIB was admissible.

See Fed. R. Evid. 701, 702. Indeed, Carey’s wide-ranging experience and position

left him eminently qualified to testify about what ICIB officers did. Such testimony

was relevant, because the fact that particular tactics were commonly used by ICIB


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tended to show that the defendants treated this case similar to other investigations

and therefore that they acted in good faith.

The government also complains that the defense did not really try to elicit

the testimony at issue, saying that after the court sustained an objection to the

question posed to Tanaka regarding his familiarity with ruses, defense counsel did

not rephrase and other attorneys did not pursue the ruse issue. GAB 194. But the

court’s sustaining of the objection to this introductory question prevented the

defense from even laying a foundation for evidence about deceptive tactics. See RT

2265. Indeed, counsel’s failure to rephrase the question is unsurprising, given the

court’s prior ruling that such testimony was irrelevant. ER 295.

The same is true of the objections sustained during Carey’s testimony. The

questions posed to Carey sought evidence that activities that the government

contended proved obstruction of justice were, in fact, normal investigative

activities. Given that no improper opinion was sought, it is not surprising that

counsel gave up. After all, attorneys are supposed to listen to court rulings and act

accordingly. If anything, the government’s citation shows that the district courtabused its discretion for the additional reason that it routinely sustained the

government’s meritless objections. The trial was replete with improperly sustained

objections, for lack of foundation where a foundation was present, and for improper

opinion where an opinion was entirely proper.5 The fact that Craig and Long’s

5

Indeed, the defense was stonewalled by a variety of meritless objectionsthat the court sustained. The court sustained foundational objections to Craig’s

attorney’s attempt to question witness Sergio Gonzalez on matters that would have

corroborated Craig’s good faith. RT 2316-17. The questions concerned an October

3, 2011, meeting at which the Supremacy Clause was discussed. Later, at sidebar,

Stone stated that he did not understand why all of the foundational objections were

sustained, explaining that he was “trying to elicit testimony that correlates to what


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counsel did not retrace the steps of Leavins’ attorney reflects an acknowledgement

of the court’s rulings, not a decision that the evidence sought to be elicited was

unimportant.6

A. The Error Was Not Harmless

The government next contends that the defense was permitted to adduce

sufficient evidence of the use of deceptive techniques to present its case. GAB 195-

96. This contention fails, because the defense could introduce only limited

evidence from Craig, who could only be described as an interested party. See, e.g.,

ER 1692, 1728, 3238-39, 3261. It is correct that Craig testified about his training in

use of particular interrogative and investigative techniques, which included

deceptive ones. But Craig and Long were unable to corroborate Craig’s testimony

with evidence from an uninterested or opposing party. And Leavins, Long, and

Craig obviously could not depend on one another for corroboration, given that they

were charged together in a conspiracy and the government accused them of

standing together to obstruct a federal investigation. Moreover, Leavins’ credibility

was badly damaged by the government, when he was impeached with evidence thathe had not attended a meeting he claimed he had. Cf. RT 3188-92 with 3548-52.

Mr. Gonzalez had said about the discussion. So that the jury understands that this

gentleman was present and heard the discussion and independently went on and

Googled the supremacy clause as part of the notice.” RT 2325. The court vaguely

responded: “Well, the discussion at the time, but I don’t know if two guys were

standing over in the corner talking. I don’t think he already established that he was

at some meeting or that in fact there was a meeting. What I heard was he happened

to be there and somebody else was there and what did you hear.” Id.

6 R elatively early in the trial, the court had already threatened to hold

Leavins’ attorney, Peter Johnson, in contempt for his questioning. RT 1910-12.


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The government further avers that the court allowed evidence of deceptive

FBI practices during the cross-examination of Deputy Courson, when Courson said

that he felt he had been lied to and used by SA Marx. GAB 191. Courson did not

testify about a ruse. Rather, the evidence showed that Marx may have led Courson

on, and lied to him regarding her precise position in the FBI. Significantly, Courson

was a low-level sheriff’s deputy, not an investigator. His “feelings” did not provide

an explanation for the use of deceptive law enforcement techniques. Similarly,

general testimony regarding the investigative function of ICIB was inadequate.

GAB 198-99. The issue was not the investigative function of ICIB, it was the

techniques that ICIB agents used, and their intention in using them.

Finally, the government contends, as it did below, that evidence of deceptive

tactics was irrelevant, because “Craig and Long knew it was a crime to lie to an FBI

agent.” GAB 192. Again, the government misses the point. If Craig and Long made

false statements to Marx regarding an arrest warrant in order to carry out their

investigative duties—rather than with the intention to violate a known legal duty or

the purpose to obstruct justice—they lacked the requisite mens rea for convictionon either the obstruction or false statement counts.

The point of appellants’ argument is that the court wrongly excluded

evidence that corroborated their defense—that there was an innocent explanation

for Craig and Long’s false statements, and that this innocent explanation both

defeated the willfulness required for a false statement conviction and the intent to

obstruct justice. Evidence of deception can suggest bad faith. Evidence that law

enforcement agents routinely use deceptive tactics for a good faith reason would

have undercut that suggestion.

In sum, what was needed was testimony from an experienced and

uninterested agent or other law enforcement officer who could explain that

investigators routinely used deceptive techniques, and that using such techniques is


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a legitimate law enforcement tactic. That testimony was excluded, and it is that

testimony that was needed to support Craig’s testimony that, by making a

technically false statement to Marx, he did not intend to violate the law nor to

obstruct justice, but to obey the directives of his superiors and gain her

cooperation. The exclusion was not harmless, and reversal is required.

III. The Court Below Infringed on Mr. Craig’s Sixth Amendment Right to

Testify in his Own Defense.

The government contends that the question whether the district court

infringed on Mr. Craig’s Sixth Amendment right to testify must be reviewed for

plain error. GAB 200-01. This contention lacks merit.

Although the defense did not argue in favor of its questions based on the

Sixth Amendment, the district court prohibited speaking objections. RT 449. The

court repeatedly sustained meritless objections to the form of the question when

defense counsel asked his client questions designed to elicit a basis for the defense

case. See , e.g., RT 3223-24, 3228, 3249, 3296, 3315, 3320-21; ER 1692-93, 1701,

1716-17. This was particularly noticeable when counsel attempted to ask Craigquestions about his intent. Counsel repeatedly attempted to reframe the questions,

only to suffer the same fate. See, e.g., ER 1692-93, 1701, 1716-17; RT 3223-24. Given

the many objections sustained as leading, and the number sustained as calling for a

narrative, RT 3237-38, 3295, 3334, 3344, counsel could only conclude that his client

would not be permitted to testify about his intent.

Even if review is for plain error, Mr. Craig can satisfy that standard. The

objections were plainly without merit, given that Mr. Craig was attempting to

testify regarding his lack of criminal intent, a subject upon which he was entitled to

testify. Furthermore, as explained below, the error affected his substantial rights

under the Sixth Amendment.


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The government contends that the various questions were properly objected

to as compound and “useless.” GAB 202-03. Useless to the government, perhaps.

The questions were introductory and designed to allow the defendant to

encapsulate his defense—that he lacked the requisite criminal intent. This was his

only defense .

The government relies on inapposite authority to argue that the lower

court’s prohibition of certain defense testimony did not violate the Sixth

Amendment. In United States v. Gallagher, 99 F.3d 329, 332 (9th Cir. 1996), this

Court decided there was no violation of the Sixth Amendment where a defendant

was allowed to testify not once, but twice, and was precluded only from continuing

to speak after his attorney had finished questioning him. And in Williams v. Borg,

139 F.3d 737, 740 (9th Cir. 1998), the Court upheld the striking of a defendant’s

testimony after he refused to submit to cross-examination. See also Miller v.

Fairchild Industries, 885 F.2d 498, 514-15 (9th Cir. 1989) (the rejection of an

appellate claim based upon the trial court’s permitting the government to lead one

of its witnesses). None of the cases cited by the government involved the instantsituation: a defendant who took the stand; who was cross-examined thoroughly;

and yet who was precluded from testifying about his own intent, based on the

court’s multiple mistaken rulings about the form of a question.

Again, the government disregards appellant’s point: the questions at issue to

which objections were sustained concerned Craig’s intent. ER 1692-96, 1717-18;

RT 3223-24. He was never allowed to testify whether he possessed a forbidden

purpose in questioning Brown, Michel or Courson, an element of the obstruction of

justice charge. The court even sustained objections to proper questions that would

have allowed the jury merely to infer that Craig acted in good faith. See ER 1701.

Craig’s testimony on his own intent was needed: His only defense was that

he acted in good faith and lacked the requisite criminal intent. The government


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vigorously argued that even if the defendants possessed a good reason for

committing the acts charged as criminal, they were still guilty, so long as they had

even a partial intent to obstruct justice. This argument was supported by the dual

purpose jury instruction. Thus, under the instructions given, even if Craig acted in

good faith, he could be convicted if he also possessed an intention to obstruct. The

court’s rulings deprived Craig of both the opportunity to deny the presence of

criminal intent and to contradict circumstantial evidence that such intent was

present. Accordingly, when the record is viewed as a whole, the government’s

claim that the court reasonably exercised its discretion under Fed. R. Evid. 611

must be rejected. See GAB 204-06.

The district court also abused its discretion when it precluded Craig from

testifying as to the dangers posed by cell phones in the custodial setting.7 Again, the

court plainly abused its discretion in excluding this testimony both as “not really

relevant,” ER 1711, and as cumulative to other witness testimony. RT 3281.8 The

government claims that any error was harmless for the same reason. GAB 207-08.

But the district court’s memory was faulty: it repeatedly sustained objections toquestions directed to Tanaka and Carey regarding the particular dangers posed by a

cell phone in the custodial setting. GAB 208.9 Although Bayes and Marx admitted

7 The government states that this claim is reviewable for plain error. But

Craig objected to the court’s preclusion of his testimony. See RT 3246.

8 At sidebar, Craig’s attorney stated that he wanted Craig to testify brieflyabout the dangers of cell phones because it informed his “investigatory interest.”

RT 3246. The government misrepresented the record, stating that “there has been

significant testimony about the dangers of cell phones.” Id.

9 The government’s claim to the contrary is inaccurate and incomplete.

Tanaka did not testify about the specific dangers posed by cell phones in a custodial


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that a cell phone posed potential dangers, neither believed the danger was serious,

and both testified that the presence of a cell phone was a minor matter at best.

Ultimately, codefendant Leavins was the only witness who was permitted to give

testimony regarding the particular dangers posed by a cell phone in the hands of an

inmate. And his testimony on the point was undermined by his interest in the

matter, and went uncorroborated.

The government also contends that Craig was permitted to testify about cell

phones. But Craig was only allowed to testify that he had previously investigated

cases involving contraband in the jails, including cell phones. He was not allowed to

testify regarding his view of the significance of a cell phone in the custodial setting

and why it was important to conduct a thorough investigation into the phone’s

origin.

Craig was entitled to testify—in his own defense—as to the particular

dangers posed by an uncontrolled cell phone in the hands of an inmate. His

knowledge about cell phones informed his actions and was relevant to his intent,

the critical issue in this case. The excluded testimony that Craig considered aninmate-possessed cell phone to pose a real danger, and to indicate the presence of a

variety of crimes (possibly including jail officer corruption), would have provided

an explanation for Craig’s actions in this investigation. Such testimony bolstered

his claim that he acted in good faith, pursuant to what he believed was a lawfully

ordered investigation. This testimony was critical, because the government

contended that no reasonable law enforcement officer could have believed that the

setting; Indeed, the district court explicitly excluded such testimony. ER 1140-41.

Carey testified only that a cell phone was dangerous; he did not explain why.

ER 1303.


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investigation into a cell phone was legitimate and that the only reason for the

investigation was the involvement of the FBI.

The errors were not harmless. The government appears to argue that

because Craig was permitted to give testimony in his own defense, no error

occurred. GAB 205. The government wrongly equates Mr. Craig’s testimony about

his concern for Brown’s allegations of brutality with a denial of criminal intent. Mr.

Craig was allowed to offer a reason why he told corrupt officer and cooperator

Gilbert Michel not to discuss the case with anyone. Again, however, Craig was not

allowed to deny that he lacked any criminal intent.

Similarly, precluding Craig from testifying about the dangers of cell phones

was not harmless. Cf. GAB 207-09. Although Leavins gave testimony regarding the

dangers of cell phones, his testimony was not corroborated, and he was impeached

badly by evidence that he claimed to attend a meeting when he apparently had not.

Even if Leavins’ testimony had been sufficient, however, Craig was entitled to

testify about his knowledge and experience that informed his intent. Craig’s

knowledge about the particularized dangers posed by cell phones was relevant tohis credibility and his good faith. And that was a subject about which Leavins could

not testify.

IV. There was Insufficient Evidence that Craig and Long’s Statements to

Marx were Material.

The government insists that Craig and Long’s statements to Marx and Narro

were material because they were capable of influencing the FBI, the agency to

which the statements were addressed. GAB 131-38. This contention disregards

both the facts and the context of the charged conduct.

The government accuses the defense of making an argument based on

stereotypes about the FBI. But, the character of the FBI, the agency at issue, is


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highly relevant to deciding whether the statements made to Agent Marx and

Supervisor Narro were material.

The government contends that the statements were material, because they

caused Marx and possibly other agents to stay away from the Los Angeles County

Jail for several months. GAB 133-34. As it did below, the government points to

Marx’s testimony that she did not visit the jail for about six months out of concern

for what might happen.10 The government’s contention lacks merit.

The government’s view of the evidence most clearly falters on the question

of whether Long’s statement to Agent Narro (that an arrest warrant was going to

be issued for Marx’s arrest) and Craig’s similar statement to Marx (that he was in

the process of swearing out a complaint) were material. The materiality element

cannot be satisfied by showing mere incidental adjustments in approach by the

federal agency, here the FBI. Rather, to be material there must be an actual or

potential impact on the actions of the agency, such as on a decision to be made

within the jurisdiction of that agency. Moreover, it is the agency’s decision-making

that is critical, not the decisions or actions of a single agent. The governmentcannot make that showing—after September 26, 2011, the FBI’s investigation

continued unabated. ER 1286.

The lack of materiality in this case can be seen by examining the cases cited

by the government. For example, United States v. De Rosa, 783 F.2d 1401 (9th Cir.

10 Marx’s claim is undercut by her testimony that she did not visit the jailafter the telephone was found, because she believed “it would have been too

obvious for her to go.” ER 1052. See also, ER 1231, testimony of FBI Assistant

Director of the Los Angeles Office, Steven Martinez (“once I learned that that

phone had been compromised, I don’t think that we had a viable way of continuing

the use of that technique.”).


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1986) is cited for the applicable materiality standard: “whether the falsification is

calculated to induce action or reliance by an agency of the United States.” But the

false statements there were two answers on a questionnaire from the government

regarding the defendant’s continuing eligibility to receive disability benefits.

Although the defendant was employed with a private company, he responded that

he had not recovered sufficiently to resume his duties and had not been employed.

The court found there was sufficient evidence that a truthful answer would have

influenced the agency to follow up and determine whether the defendant was still

eligible to receive disability retirement benefits, and he wasn’t. Id. at 1408. This is

the type of materiality that is missing in the instant case.

The other cases cited by the government are to the same effect. See, e.g.,

United States v. King, 735 F.3d 1098, 1102-03, 1108 (9th Cir. 2013) (defendant lied

about reason for entering United States, concealing firearms-related activities; had

he answered truthfully, he might not have been admitted); United States v.

Mayberry, 913 F.2d 719 (9th Cir. 1990) (false representations as to assets, down

payments, settlement fees, and intention to occupy on HUD application werematerial where HUD official testified that answers to these questions determine

whether loan is classified as primary residence or investment property); United

States v. Facchini , 874 F.2d 638 (9th Cir. 1989) (lack of materiality on some counts

where false statements on forms submitted to Oregon Division of Employment

neither increased nor had propensity to increase the federal government’s

expenditure of funds; finding sufficient evidence where there was a “direct causal

link” between false statements and an improper disbursement of federal funds.);

United States v. Goldfine , 538 F.2d 815 (9th Cir. 1976) (defendants made false

statements to compliance investigators from DEA regarding out-of-state sales of

controlled substances investigated by DEA); United States v. Cummings , 245 Fed.

App’x 616 (9th Cir. 2007) (FBI’s attempts to locate classified documents would


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very likely have taken a different course had defendant not lied about knowing the

recipient of the documents).

An equivalent materiality in the context of this case would have

demonstrated an effect on the FBI’s attempts to indict deputies involved in

beatings at the jail. But the course of that investigation did not turn out differently

because of Craig’s and Long’s statements to Marx and Narro about a possible

arrest warrant for Agent Marx.

The natural and intrinsic effect of the statements at issue was not to affect

the FBI’s investigation, and, notwithstanding Marx’s testimony, they did not affect

the FBI investigation. See United States v. Bonds, 784 F.3d 582, 585 (9th Cir. 2015).

Rather, the natural reaction—and the actual one—was for the FBI to take the

matter to the U.S. Attorney. And it did. After Craig and Long contacted Marx, she

immediately reported to her supervisor, Narro, who immediately involved higher

ups, who, in turn, confirmed both that there was no warrant and that there would

be no warrant. Specifically, the next day the United States Attorney, then Andre

Birotte, telephoned Sheriff Baca, who promptly disavowed any intention to arrestan FBI agent. That same day, Birotte, ADIC Martinez, and Baca met. ER 1240-

041, 1731. The district court excluded testimony regarding the content of

discussions at this meeting, which would have shown that LASD personnel did not

again approach any FBI agents, let alone arrest one. Craig’s and Long’s remarks

triggered a meeting with the Sheriff, nothing more. The FBI’s investigation was

not stymied or discontinued.

The element of materiality is critical to limiting federal jurisdiction in

broadly framed statutes. Bonds , 784 F3d. at 585. Otherwise any false statement will

be sufficient to trigger criminal liability. The false statements here were not

material. The defendants’ convictions should be reversed.


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V. The Evidence as to Long Was Insufficient on all Counts.

The government asserts that Long’s arguments depend on inferences

“contrary to the record” in opposition to the standard under Jackson v. Virginia,

443 U.S. 307 (1979). GAB 135-36. But the government’s view of the evidence is an

all-encompassing one, in which every conflict in the evidence, whether it was

necessary to the verdict or not, was resolved in favor of its view of the facts and

culpability. Only those contested issues that were necessary to the verdict reached

can be said to have been resolved in the government’s favor; the others remain

areas where the evidence was conflicting.

The government argues with respect to the conspiracy count that “the

existence of an agreement was abundantly proven,” saying “Craig and Long

operated as partners.” GAB 136. Well, they were partners within the ICIB.

Separating out those facts that are consistent with innocence, the government is

left with their analysis that Craig and Long encouraged Michel and Courson “not

to cooperate with the federal investigation” and worked to “drive a wedge between

Brown and his FBI handlers.” Id. But those facts, if they constitute a fair reading ofthe evidence, are not clearly directed at obstruction of justice—they relate to the

FBI investigation, not planned testimony before a federal grand jury.11 Without

evidence that Long knew that Michel, Courson, and Brown had been subpoenaed

11 There was repeated testimony that it was an FBI investigation that was

obstructed. See , e.g., ER 619, 666, 758 (“They were on notice that it was an F.B.I.

investigation. They should not have obstructed it.”), 829, 879, 884, 1584, 1957,

2083, 2252.


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to testify before the federal grand jury, the actions could not constitute obstruction.

And the government failed to introduce that evidence. 12

The government then switches topics and posits that “[e]ven if Long had

not known about contemporaneous efforts to hide Brown from the FBI, it would

not matter.” GAB 137. And why would it not matter? Because she was supervised

by Leavins and he decided to move Brown. The issue of proof on exactly what role

Leavins played in moving Brown is discussed elsewhere in briefing, but the fact that

one of Long’s superiors in the Sheriff’s Department may have known or done

something cannot be imputed to her without an additional showing. And there was

no such showing.

The government’s sleight of hand continues with the examples of Long’s

“multiple criminal acts in support of the conspiracy.” GAB 138. Suggesting to

12 Indeed, the government did not even recognize the need to introduce this

evidence. Both the government and the district court believed, in essence, that the

federal cell phone “preempted” any state police powers. ER 112. Although certain

state statutes may be invalid if they are irreconcilable with federal law, see e.g.,

Pennsylvania v. Nelson, 350 U.S. 497, 518–19 (1956) (concluding that the federal

Smith Act preempted Pennsylvania Sedition Act, which proscribed same conduct),

state criminal laws are very rarely invalidated under the Supremacy Clause. What is

clear is that an “FBI phone” does not preempt state criminal law. The Supremacy

Clause is not the “source of any federal rights.” Armstrong v. Exceptional Child

Ctr., Inc., 135 S. Ct. 1378, 1383 (2015) (citations omitted). What the district court

was really talking about appears to be so-called “Supremacy Clause immunity”

which is available to federal officers in connection with the federal officer removal

statute. 28 U.S.C. § 1442(a)(1). This immunity has nothing to do with the legality

of the actions undertaken by the defendants in this case, and the fact that it was an

“FBI phone” did not suddenly “preempt” the powers of state law enforcement.


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Brown that the FBI hadn’t come back for him wasn’t obstruction if she didn’t

know he was a grand jury witness. And “mocking” Agent Narro relates to the

FBI’s investigation, if anything, and not to the grand jury proceedings.

The government papers over the lack of evidence that Long had knowledge

of a grand jury writ for Brown’s appearance with references to the “[r]umor mill.”

GAB 141 n.34. But discussion of what was happening at the jail among “low-level”

guards does not translate into what was known by Long, a recent addition to the

ICIB, a separate unit within the Sheriff’s Department, which conducted the

politically unpopular work of investigating crimes by employees. ER 637. The

government provided no evidence that Long was a “gossip” or knew about these

discussions. In fact, the FBI wasn’t sharing any information with ICIB. See ER 409,

666, 711, 1400.

The government asserts that the jury’s verdict necessarily confirms that the

writ for Brown was actually served on the Sheriff’s Department and that it was not

subsequently withdrawn. GAB 141-42. But determination of this issue was not

necessary to the verdict, and, even in the light most favorable to the government,the writ may have been faxed over to the Sheriff’s Department, and after

discussions with Baca, the USAO agreed to hold off on enforcing the writ. ER 691,

782, 1270, 1282, 1284. None of this shows that Long knew there was a writ. The

government goes on to say that even if it was withdrawn it did not undercut Long’s

guilt, citing United States v. Rasheed , 663 F.2d 843, 853 (9th Cir. 1981). It was

uncontested that the defendant in Rasheed knew there was a grand jury subpoena

for documents. See, i.d. at 851 (“[s]he does not claim that the ledgers and

notebooks were not covered by the subpoena.”). Before it was withdrawn, the date

for compliance with the writ for Brown was set as September 7. There is no

evidence that Long knew of the writ or the date, so she could not have obstructed


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justice in keeping Brown from the grand jury.13 Rasheed undermines the

government’s argument and supports Long’s position.

Making Michel feel “blackmailed by the FBI” does not address whether

Long did anything to prevent him from testifying before the grand jury. Michel had

not been subpoenaed at the time Long spoke to him. Michel’s girlfriend did receive

a subpoena, which was almost immediately withdrawn, but the government

presented no evidence that Long talked to Caruso about not testifying before the

grand jury. The government says that “Craig and Long confronted [Agent Marx] at

home and threatened her with arrest in hopes of influencing the FBI’s investigation.”

GAB 144 (emphasis added). But the obstruction must relate directly to the grand

jury proceedings—and the government continues to mix and match the FBI with

the grand jury as if they are interchangeable.14 There is nothing in the verdict or the

evidence presented that allows this leap.

United States v. Ladum, 141 F.3d 1328 (9th Cir. 1998), does not aid the

government. GAB 145. In Ladum, the defendant suggested that an individual lie to

the grand jury, and approved of plans to alter documents responsive to a grand jurysubpoena. On appeal defendant argued that the falsified records could not support

conviction, because they were never presented to the grand jury. This Court

rejected that argument, because the records had been subpoenaed and the

defendant knew they had been subpoenaed when he approved of altering them.

Here, in the absence of proof that Long knew that a particular individual had been

13 Pearson’s testimony was that he talked about the writ to Sexton, or

Manzo, or Smith, not to Craig or Long. ER 2:789.

14 The issue of mens rea is addressed elsewhere, along with the serious

problems with insufficient and inaccurate jury instructions on this issue.


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subpoenaed to testify before the grand jury, her statements to them, even if

dismissive of the FBI, could not constitute obstruction under § 1503.

With respect to materiality, the government baldly asserts that the FBI was

“serving as an ‘arm of the grand jury.’” GAB 140. This is not a question the jury

was asked. And had they been, a lot of delineation would have been required. For

one thing: Exactly when was the FBI serving in that capacity? Because the

government certainly can’t be proposing that every action taken was “as an arm of

the grand jury.” The indictment itself alleged only that the “FBI often acted as an

arm of the federal grand juries.” ER 602 (emphasis added). The testimony was

similarly imprecise: “agents would interview witnesses and then sometimes present

that testimony to the grand jury.” ER 651 (emphasis added). The Michel

investigation was covert (ER 527, 666, 1076, 1400, 1584) and there was no

delineation of when the FBI was acting as the FBI rather than as an arm of the

grand jury. ER 756. The evidence was therefore insufficient. See United States v.

Aguilar , 515 U.S. 593, 600 (1995). Long’s convictions should be reversed.

VI.

The District Court Procedurally Erred in Imposing an UpwardAdjustment on Craig for Holding a Supervisory Role in the Offense.

The government contends the district court did not err in imposing a three-

level upward adjustment on Craig for a supervisory role in the offense. GAB 281-

85. The government’s argument relies on a faulty reading of the applicable law, and

a conveniently incomplete view of the facts. Craig’s sentence must be vacated, and

the case remanded for resentencing before a different judge.

The government quotes the district court’s statement, which echoed the

PSR, as showing that the defendant held a supervisory role in the offense.

GAB 281. But the government’s argument makes the point that the district court

equated being a “senior investigator with ICIB and co-defendant Long’s training

agent” with having a supervisory role in the offense. Craig may have been


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nominally “in charge” of the cell phone investigation, along with co-lead

investigator Long, but he himself was subject to the supervision and direction of

four LASD executives: Sheriff Baca, Undersheriff Tanaka, Captain Carey, and Lt.

Leavins.

The government makes a variety of claims regarding Craig’s participation in

the offense conduct and contends that he organized others for the purpose of

carrying out the crime. GAB 280-81. But this argument ignores the entirety of the

offense.

It is worth noting Craig’s subordinate role within the investigation. Sheriff

Baca initiated the investigation, Undersheriff Tanaka and Captain Carey

participated in it and delegated immediate supervision to Leavins. ER 1291-92,

1294. Carey assigned Craig to the investigation. RT 2635. Sheriff Baca himself

ordered that ICIB investigators contact SA Marx and attempt to interview her.

ER 1329-33, 1516-17, 2153; RT 2619-21. And it was Baca who relayed to Carey that

Craig and Long should do everything but put handcuffs on Marx. ER 2323.

Craig was charged in a conspiracy with the other defendants, but at the time

of trial, Baca, Tanaka and Carey were unindicted. But a conspiracy to obstruct

justice, if it existed at all, was formed at the executive level of the LASD: by Sheriff

Baca, who has pleaded guilty to making a false statement, Undersheriff Tanaka,

who has been convicted, and Captain Carey, who also pleaded guilty. These three

defendants may well have organized others to engage in the offense conduct. By

way of example, although Craig may have requested surveillance on agents be

conducted, it had to be authorized by higher-ups, namely Leavins and Carey.

ER 1723.

Treating Craig as a supervisor for sentencing purposes, when he was ordered

to carry out the cell phone investigation, including investigating the FBI agents and


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Anthony Brown, and was himself directed by LASD executives, is both a plain

misapplication of the guidelines and a fundamental miscarriage of justice.

The government’s legal arguments supporting the adjustment also fail.

Generally, the government seems to contend (a) that Craig’s role was important,

and (b) that he supervised Maricela Long and tried to recruit Courson and Michel

to the conspiracy. Therefore, reasons the government, he qualifies for the

adjustment.

As to the first point, a defendant’s importance to a conspiratorial offense, or

even his level of culpability, is not sufficient to support an upward adjustment for

role. United States v. Whitney, 673 F.3d 965, 974 (9th Cir. 2012).

As to the second point, the role adjustment cannot be applied to Craig based

on his supervision of Long. To receive an upward adjustment for a supervisorial

role, a defendant must exercise control over at least one other criminally responsible

participant . Id. at 975-76 ; United States v. Lopez-Sandoval, 146 F.3d 712, 717 (9th

Cir. 1998).

The government states that the “facts in the PSR show Craig’s managementand supervision of Long and his organization of others in the commission of the

offense.” GAB 281. Regardless of the contested statements in the PSR, the trial

record showed that Craig did not supervise Long in connection with the charged

activities. Indeed, according to government witness Michele Miller, Long and

Craig were both lead investigators. RT 936. The government’s characterization of

Craig as “coaching” Long during a phone conversation, GAB 282, is simply

inaccurate. Craig’s statements were nothing more or less than statements that a

more experienced investigator might make; greater experience does not translate to

control or supervision.

Additionally, although other LASD staff participated in the investigation,

none were alleged to be criminally responsible. And the notion that Craig tried to


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recruit Courson and Michel into the conspiracy by (1) asking Courson to tell Craig

that he received a subpoena and (2) telling Michel not to talk to the FBI, GAB 284,

is an entirely unreasonable reading of the record. While the government may view

Craig’s conduct as an attempt to obstruct a federal grand jury proceeding, his

conduct cannot fairly be characterized as an attempt to recruit conspirators.

The government’s argument misapprehends the law regarding § 3B1.1 on

another significant point. Instead of responding to Mr. Craig’s argument that the

factors set forth in App. Note 3, U.S.S.G. § 3B1.1, show that he did not qualify for a

supervisorial enhancement, the government contends that these factors are not

relevant to whether a defendant should receive a role adjustment, but only to which

role adjustment a defendant should receive—three or four levels. GAB 283. This

contention is contradicted by the weight of authority, including a case cited by the

government.

The multi-factor test has remained essentially unchanged since the advent of

the guidelines. Compare U.S.S.G. § 3B1.1, App. Note 4 (2013), with U.S.S.G. §

3B1.1, App. Note 4 (2006), and with U.S.S.G. § 3B1.1, App. Note 4 (1994). Severalfederal circuits, including this one, have considered the factors identified in App.

Note 3 in deciding whether to impose an upward adjustment for role in the offense

at all , not merely in deciding between upward adjustments for an organizer or

supervisor. See United States v. Jordan, 291 F.3d 1091, 1097 (9th Cir. 2002); United

States v. Ponce, 51 F.3d 820, 826 (9th Cir. 1995); United States v. Mares-Molina, 913

F.2d 770, 772 (9th Cir. 1990); accord United States v. Thorson, 633 F.3d 312, 318

(4th Cir. 2011) (“The Application Notes also provide various factors for

consideration in determine whether a defendant is an organizer or a leader.”);

United States v. Mustread, 42 F.3d 1097, 1104 (7th Cir. 1994) (“We also use the

seven factors to review whether a defendant could have played any aggravated role


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at all.”). Such a ruling is logical, because the factors relate fundamentally to a

person’s role in the offense. Indeed, in Ponce, this Court stated:

The factors to be considered when determining whether a

defendant was an organizer or leader include: the exercise

of decisionmaking authority, the nature of the offense and

the defendant’s participation in the offense, the

recruitment of accomplices, the claimed right to a larger

share of the fruits of the crime, and the degree of control

and authority exercised over others. U.S.S.G. § 3B1.1,

comment. (n.4)

Ponce , 51 F.3d at 826 (emphasis added). Nowhere does this Court indicate that the

factors are relevant only to distinguishing between a four-level leadership role

adjustment and a three-level supervisory role adjustment. The government does

not even attempt to show how, under the seven-factor test, Craig qualifies for a

supervisorial adjustment; presumably, it cannot.

In sum, the district court’s imposition of an upward adjustment for a

supervisorial role in the offense is clearly erroneous and requires vacatur of the

sentence.


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VII. CONCLUSION

For the foregoing reasons, Appellants Scott Craig and Maricela Long

respectfully request that their convictions be reversed. Appellant Craig also

requests, in the alternative, that his sentence be vacated and the matter remanded

for resentencing.Respectfully submitted,

HILARY POTASHNER

Federal Public Defender

DATED: May 13, 2016 By s/ Gail Ivens

GAIL IVENSELIZABETH RICHARDSON-ROYERDeputy Federal Public DefendersAttorneys for Maricela Long

DATED: May 13, 2016 By s/ Karen L. Landau

KAREN L. LANDAUAttorney-at-Law

Attorney for Scott Craig


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CERTIFICATE OF COMPLIANCE

I certify that (1) this brief is accompanied by a motion for leave to file an

oversized brief pursuant to Circuit Rule 32-2 and is 8305 words long, excluding the

portions exempted by Fed. R. App. P. 32(a)(7)(B)(iii) and (2) this brief complies

with the typeface requirements of Fed. R. App. 32(a)(5) and Circuit Rule 32-1,

because it has been prepared in a proportionally spaced typeface of 14 points or

more using Microsoft Word 2010.

DATED: May 13, 2016 By s/ Gail Ivens

GAIL IVENSDeputy Federal Public DefenderAttorney for Maricela Long


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CERTIFICATE OF SERVICE

I hereby certify that on May 13, 2016, I electronically filed the foregoing with

the Clerk of the Court for the United States Court of Appeals for the Ninth Circuit

by using the appellate CM/ECF system.

I certify that all participants in the case are registered CM/ECF users and

that service will be accomplished by the appellate CM/ECF system.

Diana Miner

Diana Miner


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5-13-16 -- reply brief appeal -- long & craig

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