Sexton Opening Brief - 9th Circuit Appeal

Case: 14-50583, 07/24/2015, ID: 9622230, DktEntry: 18-1, Page 1 of 77
Appeal No. 14-50583
IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
United States of America,

Plaintiff and Respondent,
vs.
James Sexton,
Defendant and Appellant.
On Appeal From the United States District Court

for the Central District of California
Hon. Percy Anderson
CASE NO. 2:13-CR-00819-PA-5
APPELLANT SEXTONS OPENING BRIEF
THOMAS P. OBRIEN (SB# 166369)

NICHOLAS J. BEGAKIS (SB# 253588)
KATHRYN C. WANNER (SB# 269310)
PAUL HASTINGS LLP
515 South Flower Street; Twenty-Fifth Floor
Los Angeles, CA 90071-2228
Tel. (213) 683-6000 Fax (213) 627-0705
Attorneys for Appellant
James Sexton
TABLE OF CONTENTS
I.
Page
PREFATORY STATEMENT .........................................................................1
II.
STATEMENT OF JURISDICTION ...............................................................4
III.
STATEMENT OF BAIL STATUS OF THE APPELLANT ..........................5
IV.
STATEMENT OF ISSUES .............................................................................6
VI. STANDARDS OF APPELLATE REVIEW ...................................................8

VII. STATEMENT OF FACTS AND STATEMENT OF THE CASE ...............10
A.
Mr. Sextons Involvement In Investigating Inmate Browns

Possession of a Contraband Phone ......................................................10
B.
Between August 23, 2011 and September 12, 2011 When Inmate
Brown is Re-Booked Under His Name, the FBI Does Not Request
To Interview or Meet With Him .........................................................12
The USAO and FBI Halted the Investigation into Inmate Brown ..13
C.
D.
The Government Begins an Investigation into LASDs Response to

The Contraband Phone and Fails To Provide Mr. Sexton with a
Target Notice .......................................................................................16
E.
The Government Indicts Mr. Sexton and Tries Him for Conduct
Occurring After August 29, 2011........................................................19
F.
After The First Jury Hung, The Government Re-Tries Mr. Sexton....21
VIII. SUMMARY OF THE ARGUMENT ............................................................25

IX.
ARGUMENT .................................................................................................30
A.
B.
The District Court Erred In Giving a Mixed Motive Instruction

And In Denying Mr. Sextons Motion To Dismiss the Indictment ....31
1.
The Fair Warning Doctrine Should Have Led to Dismissal

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

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

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

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

Edit Mr. Sextons Grand Jury Testimony ...........................................44
-i-
TABLE OF CONTENTS
(continued)
Page
C.
The District Court Erred In Failing To Suppress Defendant

Sextons Grand Jury Testimony ..........................................................49
D.
X.
The District Court Erred In Excluding Testimony Regarding The

Withdrawal Of The Writ Of Habeas Corpus.......................................56
CONCLUSION..............................................................................................62
CERTIFICATE OF COMPLIANCE .......................................................................63

STATEMENT OF RELATED CASES ...................................................................64
-ii-
TABLE OF AUTHORITIES
Page(s)
CASES
Arthur Andersen LLP v. United States,
544 U.S. 696 (2005) ............................................................................................37
Bank of Nova Scotia v. United States,
487 U.S. 250 (1988) ............................................................................................56
Brady v. Maryland,
373 U.S. 83 (1963) ..............................................................................................55
Elkins v. United States,
364 U.S. 206 (1960) ............................................................................................55
Griffith v. Kentucky
479 U.S. 314, 323(1987) ....................................................................................56
Messerschmidt v. Millender,
132 S. Ct. 1235 (2012) ............................................................................27, 41, 42
Neder v. United States,
527 U.S. 1 (1999) ................................................................................................32
United States v. Aguilar,
515 U.S. 593 (1995) ......................................................................................57, 59
United States v. Alcantara-Castillo,
No. 12-50477, 2015 U.S. App. LEXIS 9754 (9th Cir. Jun. 11,
2015) .....................................................................................................................8
United States v. Banks,
514 F.3d 959 (9th Cir. 2008) ..................................................................26, 36, 37
United States v. Bonds,
No. 11-10669, 2015 U.S. App. LEXIS 6708 ...............................................passim
United States v. Campos-Serrano,
404 U.S. 293 (1971) ............................................................................................43
United States v. Caruto,
663 F.3d 394 (9th Cir. 2011) ..............................................................................32
-iii-
(continued)
Page(s)
United States v. Castro-Cabrera,
534 F. Supp. 2d 1156 (C.D. Cal. 2008) ........................................................27, 46
United States v. Ching Tang Lo,
447 F.3d 1212 (9th Cir. 2006) ............................................................................33
United States v. Chu Kong Yin,
935 F.2d 990 (9th Cir.1991) ...........................................................................9, 60
United States v. Collicott,
92 F.3d 973 (9th Cir. 1996) ..........................................................................27, 45
United States v. Crocker,
568 F.2d 1049 (3d Cir. 1977) .............................................................................55
United States v. Gonsalves,
781 F.2d 1319 (9th Cir. 1986) ............................................................................51
United States v. Grace,
526 F.3d 499 (9th Cir. 2008) ..............................................................................51
United States v. Jacobs,
547 F.2d 772 (1976)......................................................................................53, 54
United States v. Jenkins,
785 F.2d 1387 (9th Cir. 1986) ............................................................................55
United States v. Kaminski,
692 F.2d 505 (8th Cir. 1982) ..............................................................................49
United States v. Karaouni,
379 F.3d 1139 (9th Cir. 2004) ............................................................................43
United States v. Kojayan,
8 F.3d 1315 (9th Cir. 1993) ................................................................................47
United States v. Lanier,
520 U.S. 259 (1997) ..........................................................................27, 39, 40, 41
United States v. LaRouche Campaign,
695 F. Supp. 1265 (D. Mass 1988) .....................................................................41
-iv-
(continued)
Page(s)
United States v. Liu,
731 F.3d 982 (9th Cir. 2013) ........................................................................32, 43
United States v. Lopez-Figueroa,
316 F. Appx 548 (9th Cir. 2008) .......................................................................49
United States v. Lukashov,
694 F.3d 1107 (9th Cir. 2012) .............................................................................. 8
United States v. Mancuso,
718 F.3d 780 (9th Cir. 2013) ........................................................................36, 37
United States v. Mandujano,
425 U.S. 564 (1975) ......................................................................................52, 53
United States v. Morris,
633 F.3d 885 (9th Cir. 2011) ................................................................................ 8
United States v. Munguia,
704 F.3d 596 (9th Cir. 2012) ........................................................................32, 38
United States v. Pacheco-Ortiz,
889 F.2d 301 (1st Cir. 1989) .........................................................................54, 55
United States v. Rasheed,
663 F.2d 843 (9th Cir. 1981) ............................................................33, 35, 59, 60
United States v. Rivera-Guerrero,
377 F.3d 1064 (9th Cir. 2004) ............................................................................60
United States v. Rodman,
776 F.3d 638 (9th Cir. 2015) ..............................................................................33
United States v. Ruiz,
710 F.3d 1077 (9th Cir. 2013) .............................................................................. 8
United States v. Ryan,
455 F.2d 728 (9th Cir. 1971) ........................................................................33, 35
United States v. Saathoff,
708 F. Supp. 2d 1020 (S.D. Cal. 2010)...............................................................40
-v-
(continued)
Page(s)
United States v. Santos,
553 U.S. 507 (2008) ............................................................................................43
United States v. Schuler,
813 F.2d 978 (9th Cir. 1987) ..............................................................................61
United States v. Shetler,
665 F.3d 1150 (9th Cir. 2011) ......................................................................36, 37
United States v. Simpson,
927 F.2d 1088 (9th Cir. 1991) ............................................................................51
United States v. Sitton,
968 F.2d 947 (9th Cir. 1992) ........................................................................50, 51
United States v. Smith, et al.,
Ninth Circuit Case No. 14-50440 .......................................................................30
United States v. Thomas,
612 F.3d 1107 (9th Cir. 2010) ......................................................................33, 34
United States v. Thompson,
37 F.3d 450 (9th Cir. 1994) ..........................................................................48, 61
United States v. Thompson,
728 F.3d 1011 (9th Cir. 2013) ............................................................................40
United States v. Walker,
652 F.2d 708 (1981)......................................................................................47, 48
United States v. Washington,
431 U.S. 181 (1977) ......................................................................................52, 53
United States v. Whittemore,
776 F.3d 1074 (9th Cir. 2015) .............................................................................. 8
United States v. Williams,
504 U.S. 36 (1992) ..............................................................................................50
United States v. Wood,
6 F.3d 692 (10th Cir. 1993) ................................................................................57
-vi-
(continued)
Page(s)
United States v. Yida,
498 F.3d 945 (9th Cir. 2007) ................................................................................ 8
STATUTES
18 U.S.C.
242....................................................................................................................39
371....................................................................................................4, 19, 32, 33
1503...........................................................................................................passim
1959............................................................................................................26, 36
3231....................................................................................................................4
21 U.S.C. 856(a)(1) .........................................................................................36, 37
28 U.S.C. 1291 ........................................................................................................4
42 U.S.C. 1983 ......................................................................................................41
OTHER AUTHORITIES
Fed. R. App. Proc. 4(b) ..............................................................................................4
Fed. R. Evid. 106 ...........................................................................................6, 27, 45
U.S. Constitution
Fourth Amendment ............................................................................................41
Fifth Amendment .........................................................................................52, 55
-vii-
I.
PREFATORY STATEMENT
This appeal is the unfortunate product of a turf war taken to the extreme.
Two law enforcement agenciesthe Los Angeles County Sheriffs Department

and the Federal Bureau of Investigation (FBI)both thought they were more
important than the other. That jousting by superior decision makers resulted in
lower level officers facing federal convictions for obstructing justice when they
thought they were serving justice. Convicted, when superior officers ordered
themas part of their law enforcement obligations, as part of their jobsto do
exactly as they did. This is not criminal activity. This is not obstruction of justice.
It is a tragedy that this Court should correct.
Appellant James Sexton, a Los Angeles County Deputy Sheriff, was
convicted at trial for following his superiors orders. Under the Federal
Governments view of the facts, he was convicted for his role in hiding inmate
Anthony Brown from the FBI and from a Federal Grand Jury. The reality is
different. Inmate Brown was found by the Sheriffs Department to have
possession of a cellphone in the Los Angeles Mens Central Jail, a clear violation
of jail rules and state law. Upon learning the phone, and possibly narcotics, were
provided to Inmate Brown by the FBI (which the FBI had not previously disclosed
to the Sheriffs Department), the Sheriffs Department leadership grew concerned
about jail safety, about rogue FBI agents, and wanted to understand what was
happening in the jail. Sheriff Lee Baca publicly launched an investigation arising
from the FBIs decision to smuggle a contraband cell phone to Inmate Brown, a
violent criminal serving a sentence of 423 years to life. As part of that effort,
Sheriff Baca and other senior officers decided to take Inmate Brown off the grid to
protect his life until they had a better understanding of what was going on. They
ordered junior officers, like Mr. Sexton, to assist in that effort.
This, in turn, caused the FBI and the Federal Government to respond, but not
because the Grand Jurys investigation had been impeded. Rather, they decided
that the Sheriffs Departments response to investigate the FBI after finding Inmate
Brown with an FBI phone was unlawful. And they came with vengeance towards
the junior officers, like Mr. Sexton, who simply followed orders. They prosecuted
them for obstruction of justice, knowing full well these junior officers believed
they were serving justice by following their superior officers orders.
A first jury, with full knowledge of the facts, was unwilling to convict
Mr. Sexton. They deadlocked 6-6, resulting in a mistrial. Rather than let their
charges against Mr. Sexton pass, the Government pressed on. Except this time,
they sought and succeeded in having excluded the core of the evidence Mr. Sexton
relied on during the first trial. On a purposefully shortened record, a second jury
convicted Mr. Sexton.
-2-
This Court has the power to correct this result and it should do so. In the
process of the second trial, the District Court committed a number of errors. As
shown below:
The District Court gave a confusing mixed motive instruction that
allowed the jury to convict despite Mr. Sextons good faith belief that
he was participating in a lawful investigation.
The District Court allowed the Government to unfairly edit Mr.
Sextons Grand Jury testimony during the second trial in violation of
the Rule of Completeness, rendering the testimony misleading.
The District Court failed to suppress Mr. Sextons Grand Jury
Testimony despite the fact that the Government failed to provide Mr.
Sexton with a target warning as required by Department of Justice
policy before taking his testimony.
The District Court excluded evidence that neither the FBI, nor the
Grand Jury, was ever looking for Inmate Brown during the time he
was allegedly hidden.
Any one of these errors is sufficient to reverse the conviction. Combined,

the law, the record, and the equities confirm that this is a conviction the Court
should not allow to stand.
-3-
II.
STATEMENT OF JURISDICTION
The Indictment in this matter was filed on November 20, 2013 and charged
Mr. Sexton with Obstruction of Justice in violation of 18 U.S.C. 1503(a) and

Conspiracy to Obstruct Justice in violation of 18 U.S.C. 371 for his role in
guarding an inmate caught with a contraband cell phone. (Excerpts of Record
(ER) 480-507.)
Subject Matter Jurisdiction in the District Court: Because the Indictment
charges violations of the laws of the United States, the District Court had
Jurisdiction pursuant to 18 U.S.C. 3231.
Subject Matter Jurisdiction in this Court: This Court has jurisdiction to
review the final judgment entered in the District Court and all matters collateral
thereto pursuant to 28 U.S.C. 1291.
Entry of Judgment and Timely Notice of Appeal: A jury convicted Mr.
Sexton of Obstruction of Justice and Conspiracy. (ER11-12.) The District Court
entered the Judgment and Commitment Order on December 16, 2014. (ER7-10.)
Mr. Sexton timely filed a notice of appeal pursuant to Federal Rule of
Appellate Procedure 4(b) on December 22, 2014. (ER1-6.)
-4-
III.
STATEMENT OF BAIL STATUS OF THE APPELLANT

Mr. Sexton sought bail pending appeal in the District Court. (ER74-99.)
The District Court denied the Motion for Bail on February 9, 2015. (ER73.)
Mr. Sexton subsequently moved for bail pending appeal which this Court granted
on February 27, 2015. (ER71-72.) Pursuant to this Courts Order, the District
Court altered Mr. Sextons conditions of release on April 7, 2015. (ER68-70.)
Mr. Sexton remains released pursuant to the conditions set forth in the District
Courts Order of April 7, 2015.
-5-
IV.
STATEMENT OF ISSUES
1. Mixed Motive Instruction and Failure to Grant Motion to Dismiss
Indictment: Whether the District Court erred by failing to dismiss the indictment
under the Fair Warning Doctrine when Mr. Sexton reasonably believed his actions,
taken as a law enforcement official, were lawful? Relatedly, whether the District
Court erred by instructing the jury on a mixed motive mens rea despite the fact
that there is no Circuit support for such an instruction in an obstruction case?
2. Rule of Completeness: Whether under Federal Rule of Evidence 106,
the District Court erred by not requiring the Government to provide the jury with
additional portions of Mr. Sextons grand jury testimony that showed that the
selected snippets of his grand jury testimony the Government invoked were in fact
speculative, indefinite, and contrary to the Governments characterizations? And
whether the failure to admit that evidenceevidence that was admitted in the first
trial which hungwas prejudicial?
3. Due Process and Supervisory Powers: Whether the District Court
should have exercised its supervisory powers to suppress all of Mr. Sextons Grand
Jury testimony when the Government subpoenaed Mr. Sexton after he had become
a target of the Grand Jury investigation in violation of Department of Justice policy
and thereby treated Mr. Sexton differently from similarly situated Defendants?
-6-
4. Materiality of Obstruction: Whether it was error to exclude evidence

that the obstruction was not material because the Grand Jurys writ of habeas
corpus for Inmate Brown was withdrawn before the witness was scheduled to
appear and that any delay caused by the Los Angeles County Sheriffs Department
(LASD) had no effect on the Grand Jurys investigation?
-7-
VI.
STANDARDS OF APPELLATE REVIEW

1. Mixed Motive Instruction: This Court reviews de novo whether jury
instructions properly state the elements of the charged offense and adequately
cover the defenses theory of the case. United States v. Whittemore, 776 F.3d
1074, 1077 (9th Cir. 2015).
2. Rule of Completeness: The Court reviews evidentiary rulings for
abuse of discretion and any underlying factual determinations for clear error.
Whittemore, 776 F.3d at 1077-78 (citing United States v. Lukashov, 694 F.3d 1107,
1114 (9th Cir. 2012)). The interpretation of the Federal Rules of Evidence,
however, is a question of law that is reviewed de novo. United States v. Yida, 498
F.3d 945, 949 (9th Cir. 2007).
3. Due Process and Supervisory Powers: The Court reviews Due Process
claims de novo. United States v. Morris, 633 F.3d 885, 888 (9th Cir. 2011). The
Court reviews allegations of prosecutorial misconduct for harmless error. United
States v. Alcantara-Castillo, No. 12-50477, 2015 U.S. App. LEXIS 9754, at *8
(9th Cir. Jun. 11, 2015). In that regard, the Court reviews the challenged conduct
in the entire context of the trial, and reverse[s] only if it appears more probable
than not that prosecutorial misconduct materially affected the fairness of the trial.
Id. (citing United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013)).
-8-
4. Materiality of Obstruction: Because the trial courts ruling turned on

its belief regarding the materiality of the alleged evidence, a question of law, this
Court reviews the decision to exclude the evidence de novo. United States v. Chu
Kong Yin, 935 F.2d 990, 994 (9th Cir.1991) (evidentiary rulings reviewed de novo
if legal issues predominate).
-9-
VII. STATEMENT OF FACTS AND STATEMENT OF THE CASE

A.
Mr. Sextons Involvement In Investigating Inmate Browns

Possession of a Contraband Phone
In August 2011 the LASD discovered Inmate Anthony Brownan

individual who had already been sentenced to a term of 423 years in state prison
was in possession of a contraband cell phone at Los Angeles County Mens Central
Jail. (ER205 at 844:17-22.) It was later learned that the phone belonged to the
FBI, which had given the LASD no warning of its intent to smuggle a phone into
the jail. (ER184 at 658:5-16.) The FBI inserted the phone into a custody facility
by way of an undercover operation during which an undercover agent paid a bribe
to a corrupt deputy to deliver the phone to Inmate Brown. (ER183 at 574:11-19.)
Phones in custody facilities can be extremely dangerous as they are used to
coordinate murder for hire, escape, and intimidation of witnesses, among other
things. (ER249-250 at 1019:10-1020:22.) Rightfully concerned for jail safety,
Sheriff Lee Baca ordered an investigation into the contraband phone. (ER207 at
846:10-12.) This investigation commenced following a meeting held at LASD
headquarters on a Saturday and attended by senior LASD command staff,
including Sheriff Baca, Undersheriff Paul Tanaka, Captain William Carey, and Mr.
Sextons commanding officer and co-defendant Lieutenant Gregory Thompson.
(ER210-211 at 849:8-850:4.) Mr. Sexton, a junior deputy, did not attend that
meeting. (Id.)
-10-
At the outset, the LASD launched an investigation into corrupt LASD

personnel who had smuggled the phone into Inmate Brown as well as the FBI
agents involved in the operation; based on LASD command staffs concerns that
such a dangerous and ill planned operation was not sanctioned by the FBI and was
possibly done by a rogue FBI agent. (ER212-213 at 855:22-856:12.)
Captain Carey, who oversaw the unit responsible for investigating and
prosecuting corrupt LASD personnel, ordered Mr. Sextons assigned unit
Operation Safe Jails to guard and move Inmate Brown during the investigation to
keep him safe. (ER214-241 at 859-886:1.) Mr. Sexton participated in the
guarding of Mr. Brown and assisted in his movement within the Los Angeles
County Jails but did not participate in the investigation into the facts and
circumstances surrounding the contraband phone. (Id.)
Not knowing the full facts, Captain Carey also, via co-defendants
Lieutenants Leavins and Thompson, ordered Mr. Sexton to change Inmate
Browns name in LASDs computer tracking system in order to keep potentially
corrupt and dangerous LASD employees from finding him and potentially injuring
him. (ER245-246 at 890:18-891:9.) The process to change an inmates name for
his or her protection is one that other, more experienced, deputies have used
numerous times. 1 Mr. Sexton was also ordered to guard Inmate Browns cell and
Mr. Sextons expert, Detective Mark Lillienfeld, a homicide detective with more
-11-
ultimately transport him to state prison. (ER181-182 at 507:13-508:7; ER193 at

705:13-17; ER247-248 at 892:24-893:16.)
B.
Between August 23, 2011 and September 12, 2011 When Inmate
Brown is Re-Booked Under His Name, the FBI Does Not Request
to Interview or Meet With Him
Throughout the trial, the Government argued that Inmate Brown was
somehow critical to its investigation of civil rights abuses within the County jails
as he purportedly had first-hand information regarding such abuses. Yet, neither
the FBI nor the United States Attorneys Office (USAO) made any effort to
interview or meet with him during the time the LASD allegedly hid him.
By way of background, on August 23, 2011, and unknown to Mr. Sexton,
the FBI conducted an interview of Inmate Brown at Mens Central Jail. (ER172173 at 294:19-295:14.) An LASD Sergeant halted this interview, and LASD
Captain Carey specifically requested that the FBI agents wait for him to discuss
their interview. (ER176 at 389:11-18.) Despite this request, the FBI agents left
Mens Central Jail on August 23, 2011 without meeting Captain Carey. (ER177 at
390:19-24.) After this date, the FBI never again asked for permission to return to
interview Inmate Brown. (ER178 at 405:5-7; ER185 at 693:12-17.) The lead
than 30 years of experience, testified that jail officials routinely move inmates
within their system and change their names in an effort to ensure inmate safety.
(ER250-252 at 1020:23-1022:25.) Having moved inmates and changed their
names around 500 times, Detective Lillienfeld further testified that the LASDs
movement of Inmate Brown was routine. (ER253-254 at 1029:18-1030:3.)
-12-
agent visited Inmate Brown in state prison several weeks later and conducted an
interview. (ER195 at 707:6-8.) She did not present her notes from that interview
to the Grand Jury. (ER196-197 at 714:22-715:9.) Inmate Brown testified briefly
before the Grand Jury almost a year after the events detailed in the Indictment.
(ER175 at 372:10-13.)
Despite having specific LASD deputies assigned to work with the FBI in
joint law enforcement task forces, the FBI never reached out to those deputies to
attempt to contact Inmate Brown through alternate channels. (ER186 at 698:4-15.)
Even during meetings between the USAO and LASD leadership, the Government
never asked the LASD to provide Inmate Brown to the FBI. (ER204 at 813:8-23;
see also ER242-243 at 887:23-888:1.)
C.
The USAO and FBI Halted the Investigation into Inmate

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

the FBI reached out to the USAO for assistance. The USAO applied for a writ of
habeas corpus ad testificandum on August 25, 2011 seeking the production of
Inmate Brown for testimony before the Grand Jury on September 7, 2011 at 9:30
a.m. (ER257.) The application informed the District Court issuing the writ that
the USAO had contacted the LASD regarding Inmate Browns availability; that
was untrue. (ER199 at 805:5-22.)
-13-
By August 29, 2011, just four days after applying for the writ and more than
a week before Inmate Brown was scheduled to appear before the Grand Jury,
Sheriff Lee Baca met with United States Attorney Andr Birotte to complain about
the FBIs tactics in inserting a cell phone into the jails. (ER200-203 at 806:20809:2.) Sheriff Baca was upset. Following that high-level meeting, the USAO
essentially halted the investigation into the LASD and the lead Agent on the case
admitted that there was a meeting and there was discussions about holding off on
some subpoenas and stuff. (ER190 at 702:17-23.) FBI Agents on the matter were
then told by the Supervisory Special Agent that they could not go interview any
Sheriffs Department employees. (ER191 at 703:4-11.) These interviews were
halted because parts of the investigation into LASD were put on hold, and Agents
inferred that they were not supposed to make any visits to LASDs jails. (ER191192 at 703:14-704:6.)
Although the Government argued that lower officers, like Mr. Sextons,
compliance with the orders from senior LASD officials prevented the Grand Jurys
writ of habeas corpus from being executed upon Inmate Brown, and therefore
obstructed justice (see ER480-507), FBI Supervisory Special Agent (SSA)
Carlos Narro told a different story. SSA Narro supervised the FBI investigation
into the jails and the undercover operation involving Inmate Brown. During Mr.
-14-
Sextons first trial, he testified that during the time of Mr. Sextons conduct, the
Grand Jury investigation had actually stopped and the writ had been withdrawn: 2
Q:
And during that conversation [on August 29,
2011], did Mr. Middleton 3 tell you that the writ for
Anthony Brown had been withdrawn?
A:
That was my understanding.

***
Q:
So Mr. Middleton told you that the writ had been
withdrawn until there would be a meeting between the
ADIC [Assistant Director In Charge] and Sheriff Baca at
a later date.
A:
That was my understanding. The investigation as
a whole was going to be halted. The most major aspects
of the investigation.
(ER354 at 797:4-19.)
Q:
Mr. Middleton informed you that the investigation
itself would be halted until theres a meeting between
Sheriff Baca and the ADIC?
A:
With respect to interviewing any further L.A.S.D.
employees, with respect to not pursuing the production of
documents after we had served subpoenas on the 25th of
August, with respect to the writ also being halted
those were the issues that were going to be stopped.
(ER355 at 798:6-13.)
As will be discussed below, the Government successfully sought the exclusion of

this evidence during Mr. Sextons second trial. Mr. Sexton claimed this exclusion
was erroneous and prejudicial. See infra section IX.D.
3
AUSA Middleton is the Chief of the Public Corruption and Civil Rights Section
and was the AUSA supervising this investigation.
-15-
Q:
And do you think that delay between the time you
got that call from Mr. Middleton and the time that the
investigation moved forward again impeded your
investigation in any way?
A:
Well, I had some concerns about it.
Q:
Do you believe it impeded your investigation?
A:
Dont know. It could have. Thats just based on
previous experiences in previous public corruption cases.
Q:
As you sit here today, do you have any
information that would lead you to believe that that
delay impeded your investigation?
A:
Not that I know of.
(ER356 at 799:12-22.) (emphasis added)

In summary, the FBI agent supervising this case testified in Mr. Sextons
first trial that the Grand Jury investigation was halted by the USAO after August
29, 2011, and the writ ordering the LASD to produce Inmate Brown to the Grand
Jury on September 7, 2011, had been withdrawn.
D.
The Government Begins an Investigation into LASDs Response

to The Contraband Phone and Fails To Provide Mr. Sexton with a
Target Notice
It wasnt until many months after the investigation began into the civil rights
abuses in the jails that the Government began to investigate LASDs alleged efforts
to conceal Inmate Brown. (ER198 at 721:6-24.) Mr. Sexton became an important
witness to the Government as they sought to understand how LASD responded to
the FBIs secret insertion of a cell phone into the LA County jail. (Id.)
-16-
That investigation, as all investigations conducted by the Department of

Justice, should have been conducted in accordance with the United States
Attorneys Manual (USAM). The USAM is a quick and ready reference for
United States Attorneys, Assistant United States Attorneys, and Department
attorneys responsible for the prosecution of violations of federal law. (ER470.)
The USAM is intended to be comprehensive, and when there is a conflict with
earlier Department of Justice Statements, with the sole exception of Attorney
General Statements, the USAM control[s]. (ER472.) As a comprehensive
document, the USAM reflects an executive branch decision that like individuals
should be afforded the same protections when facing investigations.
Section 9-11.151 of the USAM defines a target as a person as to whom
the prosecutor or the grand jury has substantial evidence linking him or her to the
commission of a crime and who, in the judgment of the prosecutor, is a putative
defendant. (ER476.) The USAM provides that
Because the potential for misunderstanding is great,
before a known target . . . is subpoenaed to testify
before the grand jury about his or her involvement in the
crime under investigation, an effort should be made to
secure the targets voluntary appearance. If a voluntary
appearance cannot be obtained, the target should be
subpoenaed only after the grand jury and the United
States Attorney or the responsible Assistant Attorney
General have approved the subpoena.
(ER474.)
-17-
That did not happen here.

After being approached by the FBI and quickly agreeing to cooperate in the
federal investigation, Mr. Sexton met with FBI agents and prosecutors on August
29, 2012. (ER180 at 407:14-24.) Mr. Sexton was given no target warning before
this meeting. (ER458 at 4.) A FBI Special Agent present at that meeting
testified that Mr. Sexton told the Government:
. . . that he took part in the sheriffs departments attempt
at hiding Anthony Brown from the FBI. He said because
he worked in IRC, Inmate Reception Center, he took part
in changing Anthony Browns names. He said that OSJ
deputies took shifts guarding Anthony Brown, and Mr.
Sexton said they were OSJ deputies were selected
because they could, quote, keep their mouth shut. Mr.
Sexton said that OSJ deputies viewed the FBI as an
adversary and were openly hostile toward the FBI, he
also said that OSJ supervisors planned to file charges
against Special Agent Leah Marx for her perceived role
in smuggling in the cell phone into the jail.
(ER174 at 364:4-16.)
The Government later used these facts when it indicted Mr. Sexton.
(ER480-507.) Yet, the Government gave him no target warning after this meeting
either. (ER458 at 4.) Rather, the Government proceeded to subpoena him and
take his testimony before the Grand Jury regarding another matter unrelated to this
case. (Id.)
That testimony occurred on August 29, 2012. (ER180 at 407:14-24.)
Following that testimony, Mr. Sexton retained counsel. Mr. Sextons counsel,
-18-
Mays Jemison, spoke to the USAO and they advised him that Mr. Sexton was not a
target of their investigation. (ER458 at 4.) Mr. Sexton then proceeded to meet
with the USAO and FBI numerous times. (ER324 at 538:9-12.) With and without
counsel present, Mr. Sexton met with prosecutors and agents, provided copies of
documents procured from LASD records, and offered details regarding his
involvement in every element of the LASD response to the FBIs contraband
cellphone. (ER323 at 537:6-538:15.) He repeated that statement in a second
session with the Grand Jury on November 28, 2012. (ER459 at 6.) The
Government would later use these facts, this testimony, and the documents
Mr. Sexton provided as the basis for indicting him. (ER480-507.) Yet, they gave
him no target warning. Quite the opposite, Mr. Sexton, through his counsel, was
assured he was not a target prior to testifying before the Grand Jury. (ER458-459
at 5.)
It was not until December 11, 2012, after he provided documents, after he
had countless interviews with the FBI, and testified before the Grand Jury twice,
that the Government finally complied with the USAM and provided him with a
target notice. (ER459 at 9.) By that time, it was too late.
E.
The Government Indicts Mr. Sexton and Tries Him for Conduct
Occurring After August 29, 2011
The Government indicted Mr. Sexton on November 20, 2013 and charged
him with Obstruction of Justice in violation of 18 U.S.C. 1503(a) and Conspiracy
-19-
to Obstruct Justice in violation of 18 U.S.C. 371. (ER480-507.) 4

Notwithstanding the Governments admission that the investigation into Inmate
Brown had effectively stopped after August 29, 2011, the Government indicted
Mr. Sexton, claiming that between August 18, 2011 and September 26, 2011,
Mr. Sexton had obstructed justice. (Id.)
Proceeding past various motions, including Mr. Sextons motion to dismiss
the indictment based on the Fair Warning Doctrine, which the District Court
denied (see ER455-456), the case proceeded to a first trial on May 13, 2014.
(ER454.)
At the first trial, the Government introduced significant portions of Mr.
Sextons testimony before the Grand Jury. (ER395-453.) In doing so, the
Government correctly did not deprive the jury of the context of Mr. Sextons
testimony. That full context reflected in many instances that Mr. Sexton was
relying on his superiors orders, (ER330-331 at 708:4-709:8; ER334-335 at
712:18-713:11; ER337-339 at 738:18-740:19), that he may have thought that there
was a potential disagreement between the FBI and the LASD, (ER326 at 697:7-15;
ER328 at 699:9-25), but that this information was received via hearsay, (ER326 at
697:13-15; ER328 at 699:16-18), and that he thought what he was doing was
Mr. Sexton was charged in the same indictment as Gregory Thompson, Stephen
Leavins, Gerard Smith, Mickey Manzo, Scott Craig, and Maricella Long, but the
District Court granted his motion to sever prior to trial. (ER455-456.)
-20-
lawful as reflected in his superiors orders. (ER329 at 707:5-16; ER331-332 at

709:12-710:9; ER334-335 at 712:18-713:11.) Mr. Sextons trial counsel relied on
these caveats extensively in his closing argument to establish that Mr. Sexton did
not have the requisite knowledge to form a corrupt intent. (ER373-374 at 1113:201114:5; ER385-386 at 1125:4-1126:18.)
During the first trial, the jury was also allowed to hear evidence that the
USAO had withdrawn its writ of habeas corpus for Inmate Brown prior to his
scheduled Grand Jury date and otherwise suspended the investigation where his
testimony would have been relevant. (ER353-356 at 796:5-799:22.)
The first jury hung six-to-six, resulting in a mistrial. (ER318.)
F.
After The First Jury Hung, The Government Re-Tries Mr. Sexton
The Government decided to retry Mr. Sexton, and the second jury trial
commenced on September 10, 2014. (ER258.)
This time, however, the Government decided to severely limit the evidence.
The Government moved to exclude evidence that the writ had been withdrawn by
the USAO. (ER309-317.) During trial, the Court excluded that evidence.
Likewise, the Government further excerpted the Grand Jury testimony that it
presented to the jury, removing multiple passages that were read at the first trial
passages which Mr. Sextons counsel had invoked in his closing argument.
(ER100-170.) Mr. Sexton objected to this alteration on the grounds that it
-21-
rendered his testimony misleading and incomplete. (See generally ER262-305.)5

The District Court overruled Mr. Sextons objections. (ER67.) As a result, the
following testimony which Mr. Sextons counsel had earlier relied on to argue that
Mr. Sexton based much of his testimony on rumors and speculation and was
personally unaware of the Grand Jury investigation and therefore did not form a
corrupt intent, was kept from the jury in the second trial:
This is our Sheriffs Department in its entirety. Its all about
innuendo and nuance. Compare (ER158 at 60:21-24) with (ER385
at 1125:21-23.) (emphasis added).
There were rumors. Compare (ER104 at 6:38) with (ER386 at
1126:1.) (emphasis added).
[Y]ou know, we as young deputies were speculating, trying to figure
out why that was there in the first place. Why that type of phone was
in there. Compare (ER106 at 8:1-7) with (ER386 at 1126:4-6.)
(emphasis added).
I was not privileged to the entire information of that. I was having
to put it together on my own. Compare (ER106 at 8:13-17) with
(ER386 at 1126:7-8.) (emphasis added).
I had conversations about this with [Deputy] Rathbun and my peers
and just trying to establish what we were doing and why we were
doing it. Compare (ER108 at 10:258-32) with (ER328 at 699:16-18.)
(emphasis added).
5
In an effort to provide context, a redline showing the portions of testimony read

into the record at the first trial that the Court excluded in the retrial was provided to
the District Court. (ER306-308.)
-22-
Q. Was it discussed as to who had authorized unlimited overtime? A.

Innuendo[.] Compare (ER120 at 22:2-6) with (ER330 at 708:15-16.)
(emphasis added).
Were baby faced in there. Ive been a technical adult for eight years,
so a lieutenant comes and tries to, you know he will sweat different
guys, and by sweat I mean hell challenge why youre there to see
who will give him information. Compare (ER150-151 at 52:28-53:3)
with (ER337-338 at 738:23:739:4.) (emphasis added).
I mean, being a cop is all about judgment. Im not going to detain a
U.S. Attorney at gun point or get in a use of force scenario with an
FBI agent uniformed with a subpoena. Im just not going to do that.
Compare (ER155 at 57:28-36) with (ER342 at 743:9-13.) (emphasis
added).
This is our Sheriffs Department in its entirety. Its all about
innuendo and nuance, and you either pick up what people are putting
down or youre not participating. Compare (ER158 at 60:21-27) with
(ER345 at 746:2-5.) (emphasis added).
Over objection, the Government also sought and received the following
mixed-motive instruction:
The government need not prove that the defendants sole
or even primary purpose was to obstruct justice, so long
as the government proves beyond a reasonable doubt that
one of the defendants purposes was to obstruct justice.
The defendants purpose of obstructing justice must be
more than merely incidental.
-23-
(ER33.) Mr. Sexton argued that the instruction failed to capture the elements of
the claim but the instruction was given as requested by the Government. (ER255256 at 1049:22-1050:15; ER58-59.)
This timely appeal followed. (ER1-6.) The Court deemed this matter
related to the consolidated appeals in case numbers 14-50440, 14-50441, 1450442, 14-50446, 14-50449, and 14-50455 and ordered briefing and hearing on
this case to proceed with the consolidated appeals of the other defendants. (See
Appellate Docket Nos. 13, 15.)
-24-
VIII. SUMMARY OF THE ARGUMENT

Mr. Sextons conviction resulted from an overzealous application of Section
1503 and related conspiracy charges. His conviction resulted from a turf war and
is the byproduct of the Federal Governments needlessly aggressive response to
Los Angeles County Sheriff Lee Bacas lawful local law enforcement investigation
into what he indicated was unlawful conduct by the FBI. Mr. Sexton followed his
superior officers orders, thought they were lawful, thought they were part of (not
obstructing) proper investigations, and faces time in a federal prison as a result.
This is unfair and should not stand. We should treat our local law enforcement
officials better, by refusing to allow them to become pawns in battles of law
enforcement supremacy.
Members of this Court have already recognized that [s]tretched to its limits,
section 1503 poses a significant hazard for everyone involved in our system of
justice, because so much of what the adversary process calls for could be construed
as obstruction. United States v. Bonds, No. 11-10669, 2015 U.S. App. LEXIS
6708, at *5 (9th Cir. Apr. 22, 2015) (Kozinski, J., concurring). This case illustrates
the perils of this hazard. Mr. Sexton, a junior deputy whose involvement was
primarily transporting and guarding an inmate he was told was part of possible
criminal activity by the FBI, was convicted only after a first trialon a full
-25-
recordled to a hung jury where six reasonable jurors concluded that the
Government had failed to meet its burden beyond a reasonable doubt.
In a second trial, the Government continued its turf war by limiting the
evidence the jury could hear. On an abbreviated record, a second jury convicted
Mr. Sexton. This Court should not allow the resulting conviction to stand. It
should vacate the judgment and reverse the District Courts Orders for any number
of reasons.
First, the mixed motive instruction has no basis in Circuit authority and
operated to confuse the jury regarding the requisite intent. Section 1503s use of
the word corrupt suggests that the defendants motive to obstruct justice must be
a substantial one. The District Court in this case instructed that the motive need
only be more than merely incidental. (ER33.) This Courts prior approval of
similar instructions has generally been in cases where an element of the crime
requires a specific purpose. Cf. United States v. Banks, 514 F.3d 959, 969-70 (9th
Cir. 2008) (construing the purpose element of 18 U.S.C. 1959 to require that it
be a substantial purpose, and limiting it to cases where it is one of the
defendants general purposes or dominant purposes). Moreover, this Court has
not previously approved language similar to more than merely incidental.
This instruction embraces a fundamental issue in this case: whether Mr.
Sexton was entitled to rely upon his good faith belief that guarding Inmate Brown
-26-
during an LASD investigation was lawful. The Supreme Court has held that, in a
civil context, LASD deputies are entitled to qualified immunity when conducting
reasonable investigations with the approval of their supervisors. Messerschmidt v.
Millender, 132 S. Ct. 1235, 1239 (2012) (finding that LASD deputies were entitled
to qualified immunity in Section 1983 action alleging lack of probable cause for a
search warrant in part because their supervisors had approved the warrant).
Given this authority, and the hazardous manner in which the Government
has applied Section 1503, the doctrine of fair warning should preclude conviction
for Obstruction or for Conspiracy. United States v. Lanier, 520 U.S. 259, 265
(1997) (holding that under the Fair Warning Doctrine state officers are immune
from prosecution for acts they could not reasonably understand to be proscribed).
The mixed motive instruction further complicated this issue by allowing the jury to
convict even if Mr. Sexton had a good faith belief that his actions were legally
authorized.
Second, the District Court erred in allowing significant editing of Mr.
Sextons Grand Jury testimony which rendered it inaccurate. Rule 106 precludes
editing of a defendants statement in a manner that renders it misleading. Fed. R.
Evid. 106; United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); see also
United States v. Castro-Cabrera, 534 F. Supp. 2d 1156, 1159-60 (C.D. Cal. 2008).
In this case, the Government edited Mr. Sextons testimony in an effort to remove
-27-
all references to his lack of personal knowledge regarding the criminal conduct at
issue. This made the testimony misleading by suggesting that Mr. Sexton had the
requisite knowledge regarding the extent and nature of the Grand Jury
investigation to form the necessary corrupt intent, when in fact Mr. Sextons
complete testimony made clear that he was guessing and basing his testimony on
rumor. The more complete picture shows a more junior officer following
commands he believed to be lawful.
Third, the District Court erred in failing to suppress Mr. Sextons Grand Jury
testimony as a result of the Governments violation of explicit Department of
Justice Policy in obtaining that testimony. The Government knew that Mr. Sexton
was a target of the Grand Jurys investigation and nonetheless subpoenaed him to
testify without advising him that he was a target in direct violation of the USAM.
While this Courts supervisory authority may be limited, the Grand Jury operates
under the power of the Court, and there must be a remedy for this blatant refusal to
abide by policies and procedures that were enacted to protect the rights of the
accused.
Fourth, the District Courts exclusion of evidence that the writ of habeas
corpus had been withdrawn prior to Inmate Browns scheduled Grand Jury date
impermissibly lessened the Governments burden to prove that the obstruction at
issue was material. [T]he government must prove beyond a reasonable doubt that
-28-
the charged conduct was capable of influencing a decisionmaking person or

entityfor example, by causing it to cease its investigation, pursue different
avenues of inquiry or reach a different outcome. Bonds, 2015 U.S. App. LEXIS
6708, at *8 (Kozinski, J., concurring). The District Court excluded testimony that
the writ of habeas corpus for Inmate Brown was withdrawn before he was due to
appear and that any delay in accessing Inmate Brown for a few weeks had no effect
on the Grand Jurys investigation. The excluded evidence establishes that the
obstruction could not possibly have influenced the Grand Jury and was therefore
not material in nature and not obstruction under the law.
Any one of these reasons should be enough to vacate the judgment and
reverse the District Court. Combined, and coupled with the unfairness of the turf
war at the heart of this case, the grounds for reversal are overwhelming.
-29-
IX.
ARGUMENT
Mr. Sextons conviction should be reversed on the law and on fundamental
fairness grounds. Exculpatory evidence was excluded from the jury when it should
have been allowed. Inculpatory evidence was put before the jury when it should
not have been, and would not have been for similarly situated defendants. This
inculpatory evidence was testimony from Mr. Sexton himself that was collected in
the face of an explicit prohibition in the Department of Justices own manual
against forcing targets of an investigation to testify without adequate warning. As
the facts reflect, Mr. Sexton was the victim of a turf war between two massive law
enforcement agencies.
As this Court knows, having related this case to United States v. Smith, et
al., Ninth Circuit Case No. 14-50440 (and consolidated appeals), the Federal
Government prosecuted six other members of the LASD in an attempt to send a
message regarding the superiority of Federal Government investigations over those
conducted by local law enforcement agencies. One issue in those appeals and this
onethe giving of a mixed motive instructionoverlap. The mixed motive
instruction was contrary to law and is grounds for reversal. Moreover, it highlights
a fundamental issue underlying all seven convictions: can local law enforcement
officers be convicted for participating in an investigation that is part of their job
-30-
description and that appears on its face to be lawfully authorized by their

superiors?
In addition, Mr. Sexton was the most junior deputy to be tried and unique
errors were committed in his re-trial that warrant reversal. Specifically, the
Government should not have been allowed to unfairly edit Mr. Sextons Grand
Jury testimony; the Government should not have obtained that sworn testimony in
the first place without a target warning; and the District Court should not have
excluded evidence regarding the materiality of the obstruction at issue.
A.
The District Court Erred In Giving a Mixed Motive Instruction

And In Denying Mr. Sextons Motion To Dismiss the Indictment
Can a defendant act with a corrupt intent if he is acting pursuant to a good

faith belief that his actions are lawful, but harbors some more than incidental illwill towards the Federal Government? Common sense, regular cannons of
construction, and the Fair Warning Doctrine suggest the answer is no; the District
Court disagreed. This Court should reverse.
1.
The Fair Warning Doctrine Should Have Led to

Dismissal of the Indictment
As reflected below, Mr. Sexton mainly argues this point through the lens of
the mixed motive instruction. He also moved, however, to dismiss the
Indictment on fair warning grounds, which the District Court denied. (ER522 at
Docket No. 221.) Because the fair warning grounds supported Mr. Sextons
-31-
motion to dismiss and also support his objection to the mixed motive instruction
(the fair warning argument being one of many reasons the instruction was
erroneous), Mr. Sexton argues the two points together. Though Mr. Sexton
focuses this argument on the instruction, the District Courts denial of his motion
to dismiss was also error and he seeks reversal of that error here, which would
affect this Courts remedy. See United States v. Caruto, 663 F.3d 394, 397 (9th
Cir. 2011) (We review de novo the district courts denial of Carutos motion to
dismiss the indictment.). To the degree the Court agrees that the Fair Warning
Doctrine renders the instruction invalid, the remedy should not be reversal and
retrial but reversal and dismissal of the Indictment.
2.
An Instruction Is Improper Where It Fails to State the

Necessary Elements of the Charged Crime
To confirm the law, reversal is appropriate where an instruction failed to

accurately describe the elements of the charged crime. United States v. Liu, 731
F.3d 982, 987 (9th Cir. 2013) (citation omitted). An error in describing an
element of the offense in a jury instruction is harmless only if it is clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty absent
the error. United States v. Munguia, 704 F.3d 596, 603-04 (9th Cir. 2012) (citing
Neder v. United States, 527 U.S. 1, 18 (1999)). In this case, the jury was not
properly instructed on the elements of either the Section 1503(a) Obstruction count
or the Section 371 Conspiracy Count (which depended entirely on Section 1503
-32-
culpability). Likewise, there is nothing to suggest that the jury would have
convicted Mr. Sexton anyways.
3.
The Law Requires a Defendant to Act with a Predominantly

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

Government must prove beyond a reasonable doubt that the defendant corruptly,
that is, with the intent to obstruct justice, obstructed a grand jury investigation.
United States v. Thomas, 612 F.3d 1107, 1129 (9th Cir. 2010); see also United
States v. Rasheed, 663 F.2d 843, 851-52 (9th Cir. 1981). Additionally, the
Government must prove that the nature of the obstruction was material. Id.
Section 371 makes it a crime [i]f two or more persons conspire either to commit
any offense against the United States, or to defraud the United States, or any
agency thereof in any manner or for any purpose, and one or more of such persons
do any act to effect the object of the conspiracy. 18 U.S.C. 371; United States
v. Rodman, 776 F.3d at 642. In this case, the charged object of the conspiracy was
an attempt to obstruct justice in violation of Section 1503.
As the elements of the offense reflect, obstruction is a specific intent crime.
Indeed, [s]pecific intent to impede the administration of justice is an essential
element of the offense. United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971);
see also United States v. Ching Tang Lo, 447 F.3d 1212, 1226 (9th Cir. 2006) (to
establish a conspiracy the Government must prove the intent to commit the
-33-
underlying crime.). Not only that, both crimes require the defendant act with a
corrupt purpose. Thomas, 612 F.3d at 1129. While the District Court here did
instruct the jury that Mr. Sexton must act with a corrupt purpose, which it
defined to mean with the purpose of obstructing justice based on knowledge of
a pending federal grand jury investigation, (see ER32), it counteracted that
instruction by immediately thereafter defining away what corrupt means. The
District Court lowered the bar of motivation the Government was required to prove
to a trifling amount, effectively eliminating Mr. Sextons ability to rely on his
superiors orders.
Specifically, the District Court gave the following mixed motive instruction,
which Mr. Sexton objected to, (see ER255-256 at 1049:22-1050:15; ER58-59):
One element that the government must prove beyond a
reasonable doubt with respect to the conspiracy and
obstruction of justice charges is that the defendant had
the unlawful intent to obstruct a grand jury investigation.
Evidence that the defendant relied, in good faith, on the
orders that he received from his superior officers, and
that he reasonably and objectively believed those orders
to be lawful, would be inconsistent with such an unlawful
intent.
However, if you find that the defendant had the intent
required to commit a charged crime; the defendants
conduct is not excused by a claim or evidence that the
defendant might have been following orders of his
superiors.
The government need not prove that defendants sole or
even primary purpose was to obstruct justice, so long as
-34-
the government proves beyond a reasonable doubt that

one of the defendants purposes was to obstruct justice.
The defendants purpose of obstructing justice must be
more than merely incidental.
(ER33.) As reflected in the text, this mixed motive instruction lessened the
Governments burden with respect to proving Mr. Sextons specific intent by
allowing a conviction based on an intent that was more than merely incidental,
as opposed to general, dominant, or substantial. It also said that Mr. Sexton could
be convicted despite his superiors orders if he had the intent to commit the
charged crimewhich as defined, meant knowledge of a pending grand jury
investigation and an intent to impede that investigationand convicted where that
motivation was substantially a minor cause of his conduct, so long as that
substantial minority was more than merely incidental.
This was error. There is no Ninth Circuit authority supporting a mixed
motive instruction in an obstruction case under 18 U.S.C. 1503 or a conspiracy
case in which obstruction is the object of the conspiracyand particularly not for a
case like this one. This Court has, however, explained that [t]he word corrupt
in [Section 1503] means for an evil or wicked purpose. Ryan, 455 F.2d at 734.
While the Court subsequently evaluated the meaning of the term corruptly with
regard to evaluating types of conduct, holding that it meant with the purpose of
obstructing justice, the Court has yet to consider whether this purpose must be
the primary or dominant purpose. See Rasheed, 663 F.2d at 852. Section 1503s
-35-
use of the word corrupt suggests that the defendants motive to obstruct justice
must be a substantial one.
While not these charges, this Circuits analysis of mixed motive instructions
in other specific purpose cases supports the conclusion that the District Court erred
here. In such cases, the Government is required to prove that the purpose at issue
was one of the general purposes or dominant purposes, or sometimes even the
primary or principal purpose. See, e.g., United States v. Banks, 514 F.3d 959,
969-70 (9th Cir. 2008) (considering specific purpose requirement under the
VICAR statute); United States v. Shetler, 665 F.3d 1150, 1162 (9th Cir. 2011)
(examining the type and degree of purpose required conviction of 21 U.S.C.
856(a)(1).); United States v. Mancuso, 718 F.3d 780, 794 (9th Cir. 2013) (same).
For example, in United States v. Banks, the Court considered a mixed motive
instruction in the context of the VICAR statute, 18 U.S.C. 1959. 514 F.3d at
969-970. The defendant was arrested for attempting to kill a rival gang member.
Id. at 963. The district court gave a VICAR instruction indicating that conviction
was appropriate if the act was undertaken for the purpose of gaining entrance to
or maintaining or increasing position in a gang. Id. at 964. This Court held that
the instruction was erroneous because it permitted the jury to convict Banks on
the VICAR counts even if it found that his battle with Gilmore was generally
motivated by personal animosity and by a desire to regain the respect and affection
-36-
of his girlfriend, so long as the jury also found some incidental purpose to maintain
his position in the gang, as opposed to the defendants general purpose which
this Court concluded needed to be considered. Id. at 969.
This Court has taken a similar approach with other specific purpose criminal
statutes. Shetler, 665 F.3d at 1162 (examining the type and degree of purpose
required conviction of 21 U.S.C. 856(a)(1)); Mancuso, 718 F.3d at 794 (same).
Taken together, these cases reflect that where the charged crime requires
something specific, that specificity must be dominant. Indeed, to suggest that
something must be done corruptly, suggests by its very nature that the whole of a
defendants conduct should be considered for its overall thrust. Cf. Arthur
Andersen LLP v. United States, 544 U.S. 696, 705 (2005) (Corrupt and
corruptly are normally associated with wrongful, immoral, depraved, or evil.).
Otherwise, as happens here, a state law enforcement official who believes that his
conduct is reasonably and lawfully part of a criminal investigation into what he
reasonably believes is unlawful conduct by federal officials (as his superiors told
him as such) can be held liable for a federal crime at the same time he is acting in
belief that he is furthering a lawful state investigation into the legality of the those
same federal officials. (See ER214-241 at 859-886:1.)
The Governments and the District Courts reading would always put a
junior law enforcement at risk of federal prosecution for obstruction when he is
-37-
aware of a turf war between competing law enforcement agencies and their
competing investigational priorities. This error was not harmless. An instructional
error in describing an element of the offense in a jury instruction is harmless only
if it is clear beyond a reasonable doubt that a rational jury would have found the
defendant guilty absent the error. Munguia, 704 F.3d at 603-04 (citation omitted).
The District Courts error in this case was a fundamental one in that it lessened the
Governments burden to establish the requisite mens rea. Thus it cannot be said
that a rational jury would reach the same result absent the error. This Court should
not sanction that outcome and nothing in this Courts authority suggests otherwise.
4.
Both the Fair Warning Doctrine and the Rule of Lenity

Shows the Error in the District Courts Instruction
Further, any ambiguity in the two charged offenses should have been
resolved in Mr. Sextons favor under the Fair Warning Doctrine and under the rule
of lenity. Mr. Sexton believed that he was participating in a lawful local law
enforcement investigation and the Courts mixed motive instruction (as well as
its denial of his motion to dismiss) gave the jury the ability to convict him without
his receiving fair warning and denying him the lenity the law affords him.
a.
Lanier, and Like Cases Support Reversal Under the

Fair Warning Doctrine
The background law on fair warning comes from United States v. Lanier,
520 U.S. 259 (1997). There, the court evaluated a state judges claim of immunity
-38-
from prosecution under 18 U.S.C. 242 for violating the constitutional rights of
five women by assaulting them sexually while Lanier served as a state judge. Id.
at 261. At issue was whether the judge had fair warning that his actions could be
prosecuted under a vague criminal statute. Id. at 265. In holding that the contours
of the criminal statute had to be clearly established in order to prosecute the
judge, the Court held that the bounds of the Fair Warning Doctrine were
coextensive with qualified immunity in the civil context noting that:
[T]he object of the clearly established immunity
standard is not different from that of fair warning as it
relates to law made specific for the purpose of validly
applying [a criminal statute]. The fact that one has a civil
and the other a criminal law role is of no significance;
both serve the same objective, and in effect the qualified
immunity test is simply the adaptation of the fair warning
standard to give officials (and, ultimately, governments)
the same protection from civil liability and its
consequences that individuals have traditionally
possessed in the face of vague criminal statutes. To
require something clearer than clearly established
would, then, call for something beyond fair warning.
Id. at 270-71.
Lanier suggests that where an individual does not have fair warning that a
statute will construed to cover his conduct, he cannot be held criminally liable
under that statute. This Court has gone on to explain that [t]he touchstone of
this question is whether the statute, either standing alone or as construed, made it
reasonably clear at the relevant time that the defendants conduct was criminal.
-39-
United States v. Thompson, 728 F.3d 1011, 1020 (9th Cir. 2013) (emphasis added)
(quoting Lanier, 520 U.S. at 267).
Thus, where the Government comes forward with no other case where the
facts alleged were prosecuted in the way Government claims (or construes a
criminal statute) a fair warning argument will lie. Thompson, 728 F.3d at 1020
(reversing conviction). District Courts in this Circuit have likewise applied the
fair warning doctrine when criminal statutes have been applied in a novel way.
United States v. Saathoff, 708 F. Supp. 2d 1020, 1036-37 (S.D. Cal. 2010)
(dismissing indictment as as applied to these defendants because of the novelty
of bringing a dishonest services charge against municipal officials for considering
and voting on municipal proposals initiated by their city employer . . . and the fact
that it is a criminal statute which fails to give fair warning).
Applied in this context, the Fair Warning Doctrine should have prevented
the District Court from giving the mixed motive instruction and should have led to
the dismissal of the charges much earlier. The Government cites to no in-Circuit
authority where a junior state law enforcement officer has been convicted for
obstruction and for conspiracy for following his superiors orders with respect to
possible wrongful conduct by the FBI, nor does it cite a single in-Circuit case
where a mixed instruction was given in circumstances similar to the ones here. 6
The Government did cite authority below where mixed motive instructions given
-40-
To the contrary, members of this Court have recognized that obstruction statutes,
when stretched, as they were here, pose[] a significant hazard for everyone
involved in our system of justice . . . . United States v. Bonds, No. 11-10669,
2015 U.S. App. LEXIS 6708, at *5 (9th Cir. Apr. 22, 2015) (Kozinski, J.,
concurring). This Court should reverse.
Indeed reversal would be consistent with what the Supreme Court has done
in the civil context, which Lanier instructs is a guidepost. There, the Supreme
Court jurisprudence has allowed local law enforcement officials to rely upon the
validity of orders received from their superiors to defeat claims of civil liability.
The illustrative case is Messerschmidt v. Millender, 132 S. Ct. 1235 (2012),
a case in which the Supreme Court considered the qualified immunity of an LASD
deputy in the civil context is instructive here. The plaintiff in Messerschmidt
alleged a Section 1983 claim based on an unreasonable search in violation of the
Fourth Amendment, contending that LASD deputies lacked probable cause to
obtain the search warrants at issue. Id. at 1241.
After both the district court and an en banc panel of the Ninth Circuit denied
qualified immunity, the Court reversed, holding that the deputies acted reasonably
in out-of-circuit obstruction cases, but none of those cases involved facts like this
one. (See ER58-59.) For example, the Government relied upon United States v.
LaRouche Campaign, 695 F. Supp. 1265 (D. Mass 1988), a case in which the court
declined to resolve the issue of whether a mixed motive instruction was
appropriate.
-41-
in requesting and executing the search warrant. Id. at 1246. Specifically, the
Court held that qualified immunity allowed the LASD to make reasonable but
mistaken judgments, and protects all but the plainly incompetent or those who
knowingly violate the law. Id. at 1244 (citations omitted). Important to this case,
the Court further noted that the fact that the officers sought and obtained approval
of the warrant application from a superior and a deputy district attorney before
submitting it to the magistrate provides further support for the conclusion that an
officer could reasonably have believed that the scope of the warrant was supported
by probable cause. Id. at 1249.
In this case, there was ample evidence that the LASD was conducting what
appeared to be a lawful investigation at the direction of the Sheriff. (See ER214241.) To allow the mixed-motive instruction here was to allow liability despite a
dominant reliance on the lawfulness of Mr. Sextons superiors orders and to make
him liable for acts, which under the law, he had no advance knowledge would
render him subject to criminal liability. The instruction should never have been
given and his motion to dismiss should have been granted.
b.
The Lenity Doctrine Supports Reversal
Were that not enough, as both Sections 1503 and 371 are criminal statutes
any question of whether the statutes should be read to allow a mixed-motive
instruction which as the discussion above reflects, is doubtfulthe rule of lenity
-42-
should have worked in Mr. Sextons favor to preclude the result. As the Supreme
Court has explained, the rule of lenity requires ambiguous criminal laws to be
interpreted in favor of the defendants subjected to them. United States v. Santos,
553 U.S. 507, 514 (2008). In other words, penal statutes are to be construed
strictly, and that one is not to be subjected to a penalty unless the words of the
statute plainly impose it. United States v. Karaouni, 379 F.3d 1139, 1143 (9th
Cir. 2004) (quoting United States v. Campos-Serrano, 404 U.S. 293, 297 (1971)).
Thus, for example, in United States v. Liu, 731 F.3d 982 (9th Cir. 2013), this
Court held that willfully infringe, within the context of Copyright Act, connotes
a voluntary, intentional violation of a known legal duty. Id. at 990 (citations
omitted). The Court rejected a lesser reading that did not require knowledge of the
unlawfulness of the defendants conduct, reasoning that courts normally resolve
any doubt in favor of the defendant[,] and that the modern proliferation of
statutes and regulations sometimes ma[kes] it difficult for the average citizen to
know and comprehend the extent of the duties and obligations imposed by the . . .
laws. Id. at 989. Willfully infringe had to be given a meaning that reflected
the gravity of the act the statute intended to convey and lenity, in the face of
ambiguity, required a reading that favored the defendant.
So too here. Though Mr. Sexton believes the District Court erred in giving
the mixed motive instruction under the law discussed above, were there any
-43-
question as to that law, the District Court should have applied lenity and read the
statutes to require that obstruction at the very least be the dominant purpose. The
failure to do so should be grounds for reversal.
B.
The District Court Erred in Allowing the Government to Unfairly

Edit Mr. Sextons Grand Jury Testimony
While the mixed-motive argument addressed above overlaps with arguments

that other Defendants are making in the related consolidated appeal, the
Governments conduct in Mr. Sextons trial provides unique basis for reversing his
conviction.
The cornerstone of the Governments case (in both trials) was Mr. Sextons
own Grand Jury testimony which the Government referred to as a confession.
After introducing a relatively complete version of Mr. Sextons testimony in the
first trial, (see ER395-453), the Government opted, over Mr. Sextons objection, to
present a heavily edited version of the testimony in the second trial. (ER100-170.)
Not coincidentally, the Government opted to edit out essentially all of the
testimony relied upon by Mr. Sexton in his closing argument during the first trial.
During the first trial, Mr. Sexton relied on portions of his Grand Jury testimony to
establish and to argue that he did not have the requisite knowledge of the pending
investigation in order to obstruct it. (ER385-386 at 1125:4-1126:18.) Much of that
testimony was edited out by the Government in the second trial. (ER100-170.)
-44-
Specifically, the Government was permitted to remove all references to (1)

the fact that Appellant was acting on orders from his superiors including
Undersheriff Paul Tanaka and Sheriff Lee Baca; (2) how Mr. Sexton came to
know the information the Government must prove he had knowledge of; and, (3)
facts stated in Appellants testimony that are demonstrably false and therefore
rendered Mr. Sextons Grand Jury testimony unreliable. (ER67.) Not so
coincidentally, these edits tracked, almost exclusively, the portions of the
testimony relied upon by Appellant in his first trial in arguing that the Grand Jury
testimony was based on conjecture and gossip. (ER385-386 at 1125:4-1126:18.)
This switch, from a full record to a partial one, violated the Rule of
Completeness established in Federal Rule of Evidence 106, which provides: If a
party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other partor any other writing
or recorded statementthat in fairness ought to be considered at the same time.
Fed. R. Evid. 106. Rule 106 precludes the admission of a misleadingly-tailored
snippet of a statement. United States v. Collicott, 92 F.3d 973, 983 (9th Cir.
1996). Admission of additional portions of a statement is therefore appropriate to
correct a misleading impression of a prior statement created by taking [the
defendants] comments out of context. Id.
-45-
United States v. Castro-Cabrera, 534 F. Supp. 2d 1156 (C.D. Cal. 2008), a

case in which the court required the introduction of a defendants entire statement,
is illustrative of the effect of the Governments (and respectfully the District
Courts) error here. In Castro-Cabrera, the defendant was charged with illegal
reentry into the United States and the Government moved, in limine, for the
admission of a portion of the defendants statement indicating that he thought he
was a Mexican citizen while attempting to exclude the portion of his statement in
which he indicated that he may have believed he was an American citizen. Id. at
1159-60.
The Court found that the Rule of Completeness required the admission of
the statement in its entirety or not at all. Id. at 1160. The court reasoned that
reading the statements in context results in one set of possible meanings, whereas
reading the [edited] statement in isolation tends to create a different meaning.
There is a serious risk that presentation of only the latter answer, separate and apart
from the one before it, would distort, misrepresent, or confuse the meaning of the
Defendants statement. Id.
Here, reading Mr. Sextons full commentsoffered at the first trialit is
evident that Mr. Sexton believed he was following orders issued by Sheriff Baca
and Undersheriff Tanaka. (ER330-331 at 708:4-709:8; ER334-335 at 712:18713:11.) It is likewise evident based on numerous statements Mr. Sexton made
-46-
before the Grand Jury that his information was based largely on unsubstantiated
rumors and innuendothe picture from the first trial was of an individual
following orders he believed to be lawful, but having heard rumors of a general
power battle. (ER328 at 699:16-18; ER330 at 708:15-16; ER345 at 746:2-5;
ER348 at 749:7-8; ER385 at 1125:21-23; ER386 at 1126:1; ER386 at 1126:4-8.)
Eliminating the testimony where Mr. Sexton confirmed his reliance on rumors and
guesses, and then arguing that Mr. Sexton had actual and personal knowledge of
certain facts created a very different picture. (Id.) It suggested that Mr. Sexton
knew his conduct was wrongful when his full testimony very much called that into
question. The Rule of Completeness should have precluded this distorted picture
and the Government should never have asked for it. Cf. United States v. Kojayan,
8 F.3d 1315, 1323 (9th Cir. 1993) (The prosecutors job isnt just to win, but to
win fairly, staying well within the rules.).
It is no answer, as the District Court suggested, that Mr. Sexton could have
testified on his own behalf to cure the Governments misleading editing. (ER260261 at 33:13-34:4.) The Seventh Circuit in United States v. Walker, 652 F.2d 708
(1981), addressed this argument and rejected it. In Walker, the defendant was tried
on Hobbs Act violations and the first trial resulted in a deadlocked jury. Id. at 709.
During the second trial the court allowed the Government to introduce edited
portions of the defendants cross-examination in the first trial. Id. at 710-11. The
-47-
Seventh Circuit held that it was an abuse of discretion to exclude portions of the
defendants statement that were explanatory of those offered. Id. The court held
that the Governments editing of the testimony was egregious in that it would force
the defendant to take the stand noting that:
The potential unfairness to the defendant, by contrast,
was substantial. Because [the defendant] chose not to
testify at the second trial, the Governments selective
presentation of his prior testimony resulted in the total
exclusion of [the defendants] testimony explaining the
parts admitted . . . . This result penalizes [the defendant]
for failing to testify at his second trial.
Id. at 714. The court went on to admonish the Government that it is axiomatic
that the Government has a duty to conduct a fair trial . . . . [Its] efforts to execute
this obligation should be at least as active as its zeal to secure convictions. Id.
The Seventh Circuit reversed the Conviction.
This Court should do likewise. The removal of these excerpts rendered the
testimony misleading to the trier of fact and it was not harmless. This Court need
look no further than the facts that (a) in the first trialwith full evidencethe jury
hung, (see ER318) and (b) in the second trial the Government specifically targeted
those portions of the testimony Mr. Sexton relied on his closing to know this error
was not harmless and that the trial court abused its discretion in excluding this
evidence. (See ER100-170); see also United States v. Thompson, 37 F.3d 450, 454
(9th Cir. 1994) (holding that the exclusion of evidence at a second trial following a
-48-
hung jury in the first trial was persuasive evidence that the district courts error
affected the verdict). This is a case where admission of the statement in its
edited form distorts the meaning of the statement or excludes information
substantially exculpatory of the declarant[,] and reversal is the appropriate
remedy. United States v. Lopez-Figueroa, 316 F. Appx 548, 549 (9th Cir. 2008)
(quoting United States v. Kaminski, 692 F.2d 505, 522 (8th Cir. 1982) (per Arnold,
J.)).
C.
The District Court Erred In Failing To Suppress Defendant

Sextons Grand Jury Testimony
Reversal is also warranted here because the Government obtained the

testimony that was the cornerstone of its case (Mr. Sextons grand jury testimony)
through misrepresentations to Mr. Sexton and his counsel and by failing to follow
its own policies and procedures. The Governments actions in this regard violated
Mr. Sextons rights to due process. Mr. Sexton cooperated extensively with the
Government, meeting with them and contacting them more than 37 times. (ER324
at 538:9-12.) He was repeatedly told that he was not a target of their
investigation. (ER458-461 at 4-5, 12.) Despite having full knowledge that
Mr. Sexton was, objectively and subjectively, a target, the Government assured
him he was not and compelled his testimony before the Grand Jury. (ER459-461
at 9, 12.)
-49-
The USAM instructs the USAO that targets of the investigation should not
be subpoenaed without special consideration. (ER474.) Here, Mr. Sexton was
specifically advised he was not a target, participated in countless interviews, and
offered fulsome grand jury testimony all based on the Governments repeated
statements that he was not a target, only to find out that he was a target and his
Grand Jury testimony was to form the core of the evidence against him. The
Governments failure to follow its own written policies which were enacted to
prevent unfairness, must not be allowed to go unchecked. If the Government is
allowed to subpoena targets before the Grand Jury without warning, in violation of
DOJ policies, the potential for abuse is endless. 7 Moreover, given that the USAM
sets a uniform standard, failure to abide by the USAM results in disparate
treatment of similarly situated defendants in violation of their due process rights.
In United States v. Williams, 504 U.S. 36 (1992), the Court affirmed the
existence of the supervisory authority of the federal courts over the Grand Jury but
curtailed that authority such that it can only be exercised as a means of enforcing
or vindicating legally compelled standards of prosecutorial conduct before the
grand jury. Id. at 46-47. Subsequently, in United States v. Sitton, 968 F.2d 947
(9th Cir. 1992), this Court affirmed the existence of the supervisory authority over
Indeed, four of the seven defendants in this case were subpoenaed to testify
before the Grand Jury.
-50-
grand jury proceedings where grand jury errors have resulted in violations of the
defendants constitutional rights.
In Sitton, the defendant sought dismissal of the indictment on the grounds
that the prosecutor allowed the grand jury to consider perjured testimony. Id. at
953-54. The Court declined to dismiss the indictment on the grounds that the
perjured testimony was not material. Id. Moreover, separate and apart from this
Courts supervisory authority over the Grand Jury, this Court has the supervisory
authority to sanction the prosecutors conduct in this case, among other reasons,
(1) to implement a remedy for a violation of recognized rights; (2) to preserve
judicial integrity by ensuring that a criminal conviction rests on appropriate
considerations validly before the jury; and (3) to deter future illegal conduct.
United States v. Grace, 526 F.3d 499, 511 n.9 (9th Cir. 2008) (citing United States
v. Gonsalves, 781 F.2d 1319, 1320 (9th Cir. 1986)); see also United States v.
Simpson, 927 F.2d 1088, 1090 (9th Cir. 1991).
Here, the USAOs knowing failure to advise Mr. Sexton that he was a target
prior to obtaining his sworn admissions was, without question, material. In order
to deter future willful ignorance of Department of Justice policies and procedures,
which the public, and any witness appearing before the Grand Jury will rely upon,
the District Court should be required to exercise its supervisory powers and
suppress the testimony. The USAM policy exists to prevent unfairness.
-51-
The Supreme Court considered the issue of target warnings in United States
v. Washington, 431 U.S. 181 (1977). In that case, the defendant was given full
Miranda warnings on the record, was provided with a card containing all the
warnings, and was asked to sign a form voluntarily waiving his Fifth Amendment
rights. Id. at 184 n.2. The Court declined to rule on whether a Miranda warning
was required in the Grand Jury setting, but held that the comprehensive warnings
respondent received in this case plainly satisfied any possible claim to warnings.
Id. at 186. The Court further noted that events . . . clearly put respondent on
notice that he was a suspect in the motorcycle theft. Id. at 189 (emphasis
added). As a result, the Court declined to hold that Grand Jury witnesses have a
right to receive a target letter. Id.
Nonetheless, the issuance of a target letter to a Grand Jury witness is a wellrecognized practice that exists to protect against unfairness and potential violation
of Fifth Amendment rights. Washington followed the Courts plurality opinion in
United States v. Mandujano, 425 U.S. 564 (1975), holding that failure to provide a
Miranda style warning did not merit suppression of a witness statements in a
subsequent prosecution for perjury. While Justices Brennan and Marshall
concurred in the judgment in the perjury context, Justice Brennan would have held
that an adequate target warning should be required when the investigation is
related to a substantive crime, noting that the Government may not call before a
-52-
Grand Jury one whom it has probable cause as measured by an objective standard
to suspect of committing a crime, and by use of judicial compulsion compel him to
testify with regard to that crime. Id. at 598-600 (Brennan, J., concurring); see
also Washington, 431 U.S. at 193 (Brennan, J., dissenting) (I would hold that a
failure to warn the witness that he is a potential defendant is fatal to an
indictment.).
In the wake of Washington, despite the lack of a clear constitutional
mandate, a uniform policy began to develop that ultimately evolved into the
USAM policy which now publically states that target warnings are to be
provided in all cases where a target is asked to testify. United States v. Jacobs,
547 F.2d 772 (1976).
Perhaps the first to consider the issue, the Second Circuit, evaluating a case
on remand following the decision in Washington, opted to exercise its supervisory
powers and suppress Grand Jury testimony where the defendant was not provided
with a target notice. Jacobs, 547 F.2d at 772. In Jacobs, the defendant was called
before the Grand Jury without being advised that she was a target and asked
whether she made statements that the Government had recorded in a clear attempt
to create a perjury charge in an effort to make the prosecution of the substantive
charges easier. The Second Circuit acknowledged that there was no clear
constitutional directive requiring a target notice, but noted that [w]hat the
-53-
Constitution does not require it does not necessarily forbid. Jacobs, 547 F.2d at
774. The Second Circuit went on to find that it was standard practice in that circuit
to provide a target warning, and that the failure to do so supported suppression of
the testimony under the courts supervisory powers. Id.
In 1989, the First Circuit addressed the issue in United States v. PachecoOrtiz, 889 F.2d 301 (1st Cir. 1989). By this time, the United States Department of
Justice had instituted an explicit and public policy making warnings for targets a
required policy except in circumstances . . . where notice might jeopardize the
investigation.8 Id. at 307. The First Circuit found that the failure to provide a
warning was not material because the testimony at issue was exculpatory in
character and therefore declined to suppress the testimony. Id. at 309. However,
the court made it clear that it was displeased with the USAOs actions of placing a
target before the Grand Jury and would have considered suppressing the testimony
had it been material. Id. at 308 (citing the USAM).
The Pacheco-Ortiz court went on to note that the circumstances surrounding
Grand Jury testimony support a target warning because the proceedings are
coercive by nature and that the force of this reasoning is, of course, heightened
when the witness is a putative defendant in the case the Grand Jury is
The USAM continues to instruct the USAO to advise targets of their status and
give them an opportunity to testify, if they have not already, unless such action
might jeopardize the investigation. (ER479.)
-54-
considering. Id. The court then proceeded to deliver a harsh warning to the
USAO:
The internal policies of the Department of Justice now
articulated in the U.S. Attorneys Manual regarding
warnings to targets called before the Grand Jury strike us
as sound . . . . We assume that these policies are meant
to be enforced and will be.
Id. at 310-11 (emphasis added); see also United States v. Jenkins, 785 F.2d 1387
(9th Cir. 1986) (declining to suppress on the grounds that defendant received
adequate subject warning).
In addition to violating Appellants right against self-incrimination, the
Governments failure to provide Appellant with a target notice violated his due
process rights under the Fifth Amendment. Lack of candor by government
prosecutors in making disclosures can in some instances amount to a due process
violation. United States v. Crocker, 568 F.2d 1049, 1056 (3d Cir. 1977) (citing
Brady v. Maryland, 373 U.S. 83 (1963)). The Due Process Clause of the Fifth
Amendment requires the Government to investigate alleged crimes fairly. As the
Supreme Court has noted, there is an imperative of judicial integrity underlying
the administration of justice. Elkins v. United States, 364 U.S. 206, 222 (1960).
Toward this end, federal courts may exercise supervisory authority to, within
limits, formulate procedural rules not specifically required by the Constitution or
-55-
the Congress. Bank of Nova Scotia v. United States, 487 U.S. 250, 254 (1988)
(quotation marks and citation omitted).
Finally, in various circumstances, the Supreme Court has recognized a due
process norm. Namely, that of treating similarly situated defendants the
same[.] Griffith v. Kentucky, 479 U.S. 314, 323(1987). The Governments
conduct violated that due process norm by allowing the USAO to declare a policy
that most defendants can rely on, but to which Mr. Sexton relied on to his
detriment.
D.
The District Court Erred In Excluding Testimony Regarding The

Withdrawal Of The Writ Of Habeas Corpus
The Governments decision to charge Mr. Sexton and the others in the
related consolidated appeal is confounding given the immaterial nature of the
claimed obstruction. The Government claimed that these seven defendants were
charged for hiding an inmate the Government later admitted it was not looking for.
Inmate Brown did not have any relevant information, and the Grand Jury did not
hear from him for over a year after the events at issue in the Indictment at which
time he gave brief testimony that did not appear to have any value. (ER349-350 at
784:12-785:9; ER351-352 at 786:23-787:20.) During the first trial, Mr. Sexton
introduced evidence that the writ of habeas corpus for Inmate Brown was
withdrawn before he was ever scheduled to appear before the Grand Jury, and
further that any delay in accessing Inmate Brown had no effect on the Grand Jury.
-56-
(ER353-356 at 796:5-799:22.) In the second trial, the Government sought and the
District Court agreed that the jury should not hear that evidence. (ER41 at 650:821.) This too was reversible error.
In cases like this one, the government must prove beyond a reasonable
doubt that the charged conduct was capable of influencing a decisionmaking
person or entityfor example, by causing it to cease its investigation, pursue
different avenues of inquiry or reach a different outcome. Bonds, 2015 U.S. App.
LEXIS 6708, at *8 (Kozinski, J., concurring). Evidence regarding whether Mr.
Sextons actions had the natural and probable effect of interfering with the
Grand Jurys investigation, or, in other words, were not just material, but central to
the crimes charged. (See ER32 (the government must prove that the defendants
actions would have had the natural and probable effect of interfering with the due
administration of justice.).) Even if a defendant intends to obstruct, he cannot be
convicted unless his actions could objectively be found to have the potential to
interfere with a judicial proceeding. See Bonds, 2015 U.S. App. LEXIS 6708
(concurrence of Kozinksi, J.); see also United States v. Aguilar, 515 U.S. 593, 599
(1995); see also United States v. Wood, 6 F.3d 692, 693 (10th Cir. 1993) (holding
that self-serving exculpatory statements to an FBI agent were not sufficiently
material to support an obstruction conviction and affirming dismissal of
indictment).
-57-
For example, in Bonds, the defendant gave evasive answers in his Grand
Jury testimony. Bonds, 2015 U.S. App. LEXIS 6708 at *10 (Kozinski, J.
concurring). The statements, though evasive, were nonsensical and not pertinent to
the investigation. Id. The statement communicated nothing of value or detriment
to the investigation. Id. As Judge Kozinski put it, [t]he most one can say about
this statement is that it was non-responsive and thereby impeded the investigation
to a small degree by wasting the grand jurys time and trying the prosecutors
patience. Id. at *10-11. That is exactly the case here. Inmate Brown had nothing
of value or detriment to add to the investigation, as evidenced by the
prosecutors decision to withdraw the writ before the appearance was scheduled
and decision not to order Inmate Brown to testify before the Grand Jury until
December of 2012.
SSA Narro testified that any delay in accessing Mr. Brown had no effect on
the investigation:
Q:
And do you think that delay between the time you
got that call from Mr. Middleton [withdrawing the Writ]
and the time that the investigation moved forward again
impeded your investigation in any way?
A:
Well, I had some concerns about it.
Q:
Do you believe it impeded your investigation?
A:
Dont know. It could have. Thats just based on
previous experiences in previous public corruption cases.
-58-
Q:
As you sit here today, do you have any
information that would lead you to believe that that
delay impeded your investigation?
A:
Not that I know of.
(ER356 at 799:12-22) (emphasis added).)

In the excluded testimony, SSA Narro, the FBI agent supervising the
investigation, stated under oath that the Grand Jury investigation that Mr. Sexton
was charged with obstructing was halted by the United States Attorneys Office
from August 29, 2011 through the acts alleged in the Indictment. Moreover,
because Inmate Brown was not scheduled to appear before the Grand Jury until
September 7, 2011, SSA Narros testimony strongly supported an inference that
the Governments investigation was not impeded because the Government had no
use for Inmate Brown. (ER320-322 at 519:25-520:6, 531:9-24.) Thus, the District
Courts exclusion of this evidence kept the jury from hearing that exculpatory
evidence showed the exact opposite of what the Government was obligated to
prove.
In support of the exclusion, the Government and the District Court relied
upon United States v. Rasheed, 663 F.2d 843 (9th Cir. 1981) for the proposition
that materiality is not necessary so long as the defendant endeavors to obstruct
justice. While it is true that the statute contemplates endeavoring to obstruct
justice, the Government must also prove that the acts would have had the natural
-59-
and probable effect of obstructing. Aguilar, 515 U.S. at 599. The District Courts
error here was one of law, which this Court reviews de novo. See United States v.
Chu Kong Yin, 935 F.2d 990, 994 (9th Cir. 1991).
In Rasheed, the defendant destroyed documents after being relieved of any
further obligation under a grand jury subpoena. 663 F.2d at 853. The defendant in
that case destroyed documents that the prosecutor was not aware of at the time he
relieved her of her duties under the subpoena. Id. The case offers no discussion of
whether the documents at issue were of any interest to the grand jury, apparently
assuming that they were (or because the issue was not presented on appeal). Id.;
see also United States v. Rivera-Guerrero, 377 F.3d 1064, 1071 (9th Cir. 2004)
(Questions which merely lurk in the record, neither brought to the attention of the
court nor ruled upon, are not to be considered as having been so decided as to
constitute precedents.) (citations omitted). Subsequent authority makes it clear
that one cannot obstruct a grand jury by withholding something that is of no
interest to it.
Here, the Court excluded evidence that the FBI, under orders from the
United States Attorneys Office, halted its investigation. (ER41 at 650: 8-21.) The
Grand Jury therefore effectively relieved the LASD of its obligation to produce
Inmate Brown. More importantly, there was no evidence that a delay in producing
Inmate Brown could possibly have had any effect on the Grand Jury. The FBI was
-60-
not looking for Inmate Brown, and once they were able to meet with him several
weeks later, the FBI agents failed to provide any information they obtained from
him to the Grand Jury.
The trier of fact should have been allowed to evaluate these facts in
determining whether Mr. Sextons actions had the natural and probable effect of
impeding the Grand Jury, and whether the obstruction was material. The District
Court should have allowed the introduction of this evidence. Because the evidence
of this fact goes to the heart of the materiality analysisand was part of the record
that led to a hung jury in the first trial, (see ER318)it is highly likely that the
result would have been different had the evidence been admitted. Thompson, 37
F.3d at 454; see also United States v. Schuler, 813 F.2d 978, 982 (9th Cir. 1987)
(Moreover, particularly in view of the prior hung jury, we conclude that the error
[at the defendants second trial] was not harmless beyond a reasonable doubt.).9
Even under an abuse of discretion standard, this exclusion supports reversal.

Exculpatory evidence should not be kept from the jury.
-61-
X.
CONCLUSION
For the foregoing reasons, Appellant Sexton respectfully requests that this
Court reverse the convictions, enter judgment in Appellant Sextons favor should
he prevail on his fair warning argument, or remand this case to the District Court
for further proceedings consistent with the ruling of this Court if he prevails on any
other grounds.
DATED: July 24, 2015
PAUL HASTINGS LLP

515 South Flower Street
Twenty-Fifth Floor
THOMAS P. OBRIEN
NICHOLAS J. BEGAKIS
KATHRYN C. WANNER
By:
/s/
Thomas P. OBrien

James Sexton
-62-
CERTIFICATE OF COMPLIANCE
I certify that the attached Appellants Opening Brief uses a 14 point Times
New Roman font and contains 13,777 words, exclusive of the table of contents,
table of citations, addenda, and certificates of counsel, relying on the word count of
the computer program used to prepare Appellants Opening Brief.
DATED: July 24, 2015
PAUL HASTINGS LLP

515 South Flower Street
Twenty-Fifth Floor
THOMAS P. OBRIEN
NICHOLAS J. BEGAKIS
KATHRYN C. WANNER
By:
/s/
Thomas P. OBrien

James Sexton
-63-
STATEMENT OF RELATED CASES

Appellant James Sexton is aware of the following related case pending in
this Court, pursuant to Ninth Circuit Rule 28-2.6, which arises out of the same case
in the district court that was bifurcated before trial:
United States v. Smith, et al., Ninth Circuit Case No. 14-50440 (and related appeals
Case Nos. 4-50441, 14-50442, 14-50446, 14-50449, and 14-50455).
-64-
ADDENDUM OF RELEVANT CITED STATUTES

18 U.S.C.A. 371 ................................................................................... Addendum 1
18 U.S.C.A. 1503 ................................................................................. Addendum 2
Federal Rule of Evidence 106 ................................................................. Addendum 3
18 U.S.C. 371
371. Conspiracy to commit offense or to defraud the United States
If two or more persons conspire either to commit any offense against the United
States, or to defraud the United States, or any agency thereof in any manner or for
any purpose, and one or more of such persons do any act to effect the object of the
conspiracy, each shall be fined under this title or imprisoned not more than five
years, or both.
If, however, the offense, the commission of which is the object of the conspiracy,
is a misdemeanor only, the punishment for such conspiracy shall not exceed the
maximum punishment provided for such misdemeanor.
ADDENDUM 1
18 U.S.C. 1503
1503. Influencing or injuring officer or juror generally
(a) Whoever corruptly, or by threats or force, or by any threatening letter or
communication, endeavors to influence, intimidate, or impede any grand or petit
juror, or officer in or of any court of the United States, or officer who may be
serving at any examination or other proceeding before any United States magistrate
judge or other committing magistrate, in the discharge of his duty, or injures any
such grand or petit juror in his person or property on account of any verdict or
indictment assented to by him, or on account of his being or having been such
juror, or injures any such officer, magistrate judge, or other committing magistrate
in his person or property on account of the performance of his official duties, or
corruptly or by threats or force, or by any threatening letter or communication,
influences, obstructs, or impedes, or endeavors to influence, obstruct, or impede,
the due administration of justice, shall be punished as provided in subsection (b). If
the offense under this section occurs in connection with a trial of a criminal case,
and the act in violation of this section involves the threat of physical force or
physical force, the maximum term of imprisonment which may be imposed for the
offense shall be the higher of that otherwise provided by law or the maximum term
that could have been imposed for any offense charged in such case.
(b) The punishment for an offense under this section is-(1) in the case of a killing, the punishment provided in sections 1111 and 1112 18
U.S.C. 1111 and 1112;
(2) in the case of an attempted killing, or a case in which the offense was
committed against a petit juror and in which a class A or B felony was charged,
imprisonment for not more than 20 years, a fine under this title, or both; and
(3) in any other case, imprisonment for not more than 10 years, a fine under this
title, or both.
ADDENDUM 2
Federal Rule of Evidence 106

Rule 106. Remainder of or Related Writings or Recorded Statements
If a party introduces all or part of a writing or recorded statement, an adverse party
may require the introduction, at that time, of any other part--or any other writing or
recorded statement--that in fairness ought to be considered at the same time.
ADDENDUM 3
9th Circuit Case Number(s) 14-50583

NOTE: To secure your input, you should print the filled-in form to PDF (File > Print > PDF Printer/Creator).
*********************************************************************************
CERTIFICATE OF SERVICE
When All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that 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
on (date)
.
July 24, 2015
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.
Signature (use "s/" format)
s/Thomas P. O'Brien
*********************************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the Appellate CM/ECF System
I hereby certify that 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
on (date)
.
Participants in the case who are registered CM/ECF users will be served by the appellate
CM/ECF system.
I further certify that some of the participants in the case are not registered CM/ECF users. I
have mailed the foregoing document by First-Class Mail, postage prepaid, or have dispatched it
to a third party commercial carrier for delivery within 3 calendar days to the following
non-CM/ECF participants:
Signature (use "s/" format)

Sexton Opening Brief - 9th Circuit Appeal

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

Appeal No. 14-50583

United States of America,

On Appeal From the United States District Court

APPELLANT SEXTONS OPENING BRIEF

THOMAS P. OBRIEN (SB# 166369)

Case: 14-50583, 07/24/2015, ID: 9622230, DktEntry: 18-1, Page 2 of 77

STATEMENT OF JURISDICTION ...............................................................4

STATEMENT OF BAIL STATUS OF THE APPELLANT ..........................5

STATEMENT OF ISSUES .............................................................................6

VI. STANDARDS OF APPELLATE REVIEW ...................................................8

Mr. Sextons Involvement In Investigating Inmate Browns

The Government Begins an Investigation into LASDs Response to

VIII. SUMMARY OF THE ARGUMENT ............................................................25

The District Court Erred In Giving a Mixed Motive Instruction

The Fair Warning Doctrine Should Have Led to Dismissal

An Instruction Is Improper Where It Fails To State the

The Law Requires a Defendant to Act with a Predominantly

Both the Fair Warning Doctrine and the Rule of Lenity

The District Court Erred in Allowing the Government to Unfairly

Case: 14-50583, 07/24/2015, ID: 9622230, DktEntry: 18-1, Page 3 of 77

The District Court Erred In Failing To Suppress Defendant

The District Court Erred In Excluding Testimony Regarding The

CERTIFICATE OF COMPLIANCE .......................................................................63

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Two law enforcement agenciesthe Los Angeles County Sheriffs Department

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

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

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STATEMENT OF BAIL STATUS OF THE APPELLANT

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

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STANDARDS OF APPELLATE REVIEW

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

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VII. STATEMENT OF FACTS AND STATEMENT OF THE CASE

Mr. Sextons Involvement In Investigating Inmate Browns

In August 2011 the LASD discovered Inmate Anthony Brownan

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

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

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The USAO and FBI Halted the Investigation into Inmate

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

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That was my understanding.

As will be discussed below, the Government successfully sought the exclusion of

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Well, I had some concerns about it.

Do you believe it impeded your investigation?