Former LA County Sheriff Lee Baca Trial Brief For Appeal With 9th Circuit

Case: 17-50192, 05/07/2018, ID: 10864621, DktEntry: 64, Page 1 of 69
No. 17-50192
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
LEROY BACA,
Defendant-Appellant.
Appeal from the United States District Court

for the Central District of California
Honorable Percy Anderson, District Judge Presiding
APPELLANT’S REPLY BRIEF
BENJAMIN L. COLEMAN
COLEMAN & BALOGH LLP
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 794-0420
Attorneys for Appellant Leroy Baca

TABLE OF CONTENTS
Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii
Introduction. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
I. The district court erred by excluding evidence of Mr. Baca’s Alzheimer’s

disease in violation of the evidentiary rules and his constitutional right to
present a defense, thereby requiring reversal of all counts.... . . . . . . . . . . . . . . . . . 2
II. The district court erred by misapplying the hearsay rules to exclude
critical defense evidence, thereby committing prejudicial evidentiary
error and violating Mr. Baca’s constitutional right to present a defense.. . . . . . . . 9
III. The district court erroneously empaneled an anonymous jury

under United States v. Sanchez, 74 F.3d 562 (5th Cir. 1996) and United
States v. Wecht, 537 F.3d 222 (3d Cir. 2008), requiring reversal of all
counts of conviction.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
IV. Under this Court’s common law and supervisory powers, the district
court erred by refusing Mr. Baca’s request for an Allen v. United States,
164 U.S. 492 (1896) charge and declaring a mistrial at the first trial,
thereby requiring dismissal of Counts 1-2; alternatively, retrial on
Counts 1-2 violated the Double Jeopardy Clause.. . . . . . . . . . . . . . . . . . . . . . . . . 24
V. The district court gave a non-pattern instruction on the “cooperating”

witness process that was erroneously one-sided and misleading, thereby
requiring reversal of all counts... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
VI. The district court gave erroneous non-pattern instructions on the

obstruction of justices charges that tainted the requisite mens rea and
undermined the defense.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
i
VII. The prosecutor committed misconduct during closing arguments,

including personally attacking defense counsel, vouching for the
government, and arguing evidence for an improper purpose, thereby
violating this Court’s common law rules and Mr. Baca’s constitutional
rights to counsel and due process... . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
VIII. The government presented insufficient evidence... . . . . . . . . . . . . . . . . . . . 48
IX. The convictions should be reversed under the cumulative error

doctrine, and the case should be reassigned to a different district judge.. . . . . . . 50
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 52
Certificate of compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 53
Certificate of service. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 54
ii
TABLE OF AUTHORITIES
CASES
Arnold v. McCarthy,
566 F.2d 1377 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,32
Arthur Andersen LLP v. United States,

544 U.S. 696 (2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,38,48
Brasfield v. United States,

272 U.S. 448 (1926). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Buck v. Davis,
137 S. Ct. 759 (2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
Chia v. Cambra,
360 F.3d 997 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Garcia-Aguilar v. United States District Court,

535 F.3d 1021 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35,36
Green v. United States,

355 U.S. 184 (1957). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,28
Harrison v. Gillespie,
640 F.3d 888 (9th Cir. 2011) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Idaho v. Horiuchi,
253 F.3d 359 (9th Cir. 2001) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
In re Ellis,
356 F.3d 1198 (9th Cir. 2004) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Johnson v. United States,

520 U.S. 461 (1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
iii
LeGras v. AETNA Life Ins. Co.,

786 F.3d 1233 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,11
Levine v. United States,

362 U.S. 610 (1960). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49,50
Lowenfeld v. Phelps,
484 U.S. 231 (1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
Marinello v. United States,

138 S. Ct. 1101 (2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37,38,48
McDonnell v. United States,

136 S. Ct. 2355 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 41
Parle v. Runnels,
505 F.3d 922 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
Presley v. Georgia,
558 U.S. 209 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
Quercia v. United States,

289 U.S. 466 (1933). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Renico v. Lett,
559 U.S. 766 (2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,30,31,32
Rogers v. United States,

609 F.2d 1315 (9th Cir. 1979). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Sanders v. Lamarque,
357 F.3d 943 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
Smith v. Curry,
580 F.3d 1071 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
iv
Taylor v. Maddox,
366 F.3d 992 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17
United States v. Ajiboye,

961 F.2d 892 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27
United States v. Alferahin,

433 F.3d 1148 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Arambula-Ruiz,

987 F.2d 599 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,11
United States v. Arlt,

41 F.3d 516 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
United States v. Barbioni,

62 F.3d 5 (1st Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,32
United States v. Barragan,

871 F.3d 689 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17,44
United States v. Bear,

439 F.3d 565 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36,42
United States v. Bernard,

625 F.2d 854 (9th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36
United States v. Bonas,

344 F.3d 945 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,29,31
United States v. Bonds,

784 F.3d 582 (9th Cir. 2015) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Brown,

303 F.3d 582 (5th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
v
United States v. Burt,

143 F.3d 1215 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Christian,

749 F.3d 806 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4,10,11
United States v. Christophe,

833 F.2d 1296 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Chung,

659 F.3d 815 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Cohen,

510 F.3d 1114 (9th Cir. 2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Cortes,

757 F.3d 850 (9th Cir. 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Cruz,

554 F.3d 840 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
United States v. Davis,

854 F.3d 601 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. de la Jara,

973 F.2d 746 (9th Cir. 1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Della Porta,

653 F.3d 1043 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
United States v. Del Toro-Barboza,

673 F.3d 1136 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Dunnigan,

507 U.S. 87 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
vi
United States v. Edwards,

154 F.3d 915 (9th Cir. 1998). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
United States v. Emmert,

829 F.2d 805 (9th Cir. 1987). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Espinoza-Baza,

647 F.3d 1182 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6
United States v. Fernandez,

388 F.3d 1199 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50,51
United States v. Flores-Montano,

424 F.3d 1044 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,12,23
United States v. Fontenot,

14 F.3d 1364 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Gardenhire,

784 F.3d 1277 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 51
United States v. Gergen,

172 F.3d 719 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Gonzalez-Flores,

418 F.3d 1093 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Guzman-Padilla,

573 F.3d 865 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
United States v. Hernandez-Guardado,

228 F.3d 1017 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29,32
United States v. Hinkson,

585 F.3d 1247 (9th Cir. 2009) (en banc). . . . . . . . . . . . . . . . . . . . . . . 11,17,28
vii
United States v. Hozian,

622 F.2d 439 (9th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
United States v. Jefferson,

566 F.3d 928 (9th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,32
United States v. Kallin,

50 F.3d 689 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Keys,

133 F.3d 1282 (9th Cir. 1998) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Kim,

65 F.3d 123 (9th Cir. 1995). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Lara-Ramirez,

519 F.3d 76 (1st Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
United States v. Larson,

495 F.3d 1094 (9th Cir. 2007) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 34
United States v. Leal-Del Carmen,

697 F.3d 964 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,14,16,36
United States ex rel. Drury v. Lewis,

200 U.S. 1 (1906). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Linn,

31 F.3d 987 (10th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
United States v. Lloyd,

807 F.3d 1128 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
United States v. Lyman,

592 F.2d 496 (9th Cir. 1978). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
viii
United States v. Mansoori,

304 F.3d 635 (7th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,20,21,22
United States v. Massey,

419 F.3d 1008 (9th Cir. 2005). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Mateos,

623 F.3d 1350 (11th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
United States v. Munguia,

704 F.3d 596 (9th Cir. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Murguia-Rodriguez,

815 F.3d 566 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7
United States v. Murphy,

768 F.2d 1518 (7th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39
United States v. Murphy,

824 F.3d 1197 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42
United States v. Navarro-Vargas,

408 F.3d 1184 (9th Cir. 2005) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. Olano,

507 U.S. 725 (1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Orellana-Blanco,

294 F.3d 1143 (9th Cir. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Ortega,

203 F.3d 675 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Paguio,

114 F.3d 928 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
ix
United States v. Pallares-Galan,

359 F.3d 1088 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1,6,11,23
United States v. Peak,

856 F.2d 825 (7th Cir. 1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12,13
United States v. Perlaza,

439 F.3d 1149 (9th Cir. 2006). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
United States v. Pineda-Doval,

614 F.3d 1019 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
United States v. Ponticelli,

622 F.2d 985 (9th Cir. 1980). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
United States v. Prantil,

764 F.2d 548 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 43
United States v. Preston,

873 F.3d 829 (9th Cir. 2017). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47,51
United States v. Rahm,

993 F.2d 1405 (9th Cir. 1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3,4,6
United States v. Rasheed,

663 F.2d 843 (9th Cir. 1981). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
United States v. Redlightning,

624 F.3d 1090 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
United States v. Ressam,

679 F.3d 1069 (9th Cir. 2012) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
United States v. Rodriguez,

880 F.3d 1151 (9th Cir. 2018). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7,37
x
United States v. Rubio-Villareal,

967 F.2d 294 (9th Cir. 1992) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States v. Rude,

88 F.3d 1538 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45
United States v. Ruiz,

710 F.3d 1077 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 44
United States ex rel. Russo v. Superior Court of New Jersey,

483 F.2d 7 (3d Cir. 1973). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31,32,33
United States v. Salvador,

740 F.2d 752 (9th Cir. 1984). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28,32
United States v. Sanchez

74 F.3d 562 (5th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16,21,23
United States v. Sanchez,

659 F.3d 1252 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
United States v. Sandoval-Lopez,

122 F.3d 797 (9th Cir. 1997). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Sauza-Martinez,

217 F.3d 754 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Sayakhom,

186 F.3d 928 (9th Cir. 1999). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Schuler,

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

550 F.2d 1159 (9th Cir. 1977). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
xi
United States v. See,

505 F.2d 845 (9th Cir. 1974). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25
United States v. Shryock,

342 F.3d 948 (9th Cir. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19,21,22
United States v. Smith,

831 F.3d 1207 (9th Cir. 2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40
United States v. Stever,

603 F.3d 747 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Tarallo,

380 F.3d 1174 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 50
United States v. Taylor,

569 F.3d 742 (7th Cir. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30,31
United States v. Thompson,

37 F.3d 450 (9th Cir. 1994). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9,15,36
United States v. Tisor,

96 F.3d 370 (9th Cir. 1996). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Torres,

794 F.3d 1053 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
United States v. Vallejo,

237 F.3d 1008 (9th Cir. 2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5,6,9
United States v. Velarde-Gomez,

269 F.3d 1023 (9th Cir. 2001) (en banc). . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
United States v. Verduzco,

373 F.3d 1022 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
xii
United States v. Viayra,

365 F.3d 790 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
United States v. Wahid,

614 F.3d 1009 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
United States v. Waters,

627 F.3d 345 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11,12
United States v. Weatherspoon,

410 F.3d 1142 (9th Cir. 2005). . . . . . . . . . . . . . . . . . 33,34,41,43,44,45,46,47
United States v. Wecht,

537 F.3d 222 (3d Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . 16,19,21,22,23
United States v. Williams,

547 F.3d 1187 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25,27
Universal Health Servs., Inc. v. United States ex re. Escobar,

136 S. Ct. 1989 (2016). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Wagner v. County of Maricopa,

747 F.3d 1048 (9th Cir. 2013). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
Yee v. Escondido,
503 U.S. 519 (1992). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
Zapata v. Vasquez,
788 F.3d 1106 (9th Cir. 2015). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 47
STATUTES
18 U.S.C. § 201. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
18 U.S.C. § 1503. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48
18 U.S.C. § 3432. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
xiii
RULES
Fed. R. Crim. P. 29. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 49
Fed. R. Crim. P. 52. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
Fed. R. Evid. 103. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6,9,10,11
Fed. R. Evid. 403. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6
Fed. R. Evid. 704. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Fed. R. Evid. 801. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
U.S.S.G. § 5K1.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
xiv
IN THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, ) U.S.C.A. No. 17-50192

) U.S.D.C. No. 16CR00066-PA
Plaintiff-Appellee, )
)
v. )
)
LEROY BACA, )
)
Defendant-Appellant. )
___________________________________ )
INTRODUCTION
Appellant Leroy Baca submits this reply to the Government’s
Answering Brief (“GAB”). After a potential acquittal was erroneously snatched
away from Mr. Baca, he was forced to endure a retrial tainted with fundamental
flaws, including the exclusion of critical defense evidence, the anonymity of the
jury, erroneous instructions on the law, misconduct in closings, and ultimately the
insufficiency of the evidence. Although these claims were preserved and
generally litigated with vigor below, the government seeks to avoid independent
review by contending that certain specific appellate arguments in support of the
claims were forfeited. The government ignores the well-established rule that “it is
claims that are deemed waived or forfeited, not arguments.” United States v.
Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). In other words, “[o]nce a
federal claim is properly presented, a party can make any argument in support of
that claim; parties are not limited to the precise arguments they made below.” Yee
v. Escondido, 503 U.S. 519, 534 (1992). While the government has sought an
erroneously aggressive application of the plain error doctrine, the result should be
the same under any standard of review because the errors were clear, the prejudice
was significant, and this case was close. This Court should reverse.
ARGUMENT
I. The district court erred by excluding evidence of Mr. Baca’s Alzheimer’s

disease in violation of the evidentiary rules and his constitutional right to
present a defense, thereby requiring reversal of all counts.
Mr. Baca claims that the district court erred by prohibiting his expert,
James Spar, from testifying about his Alzheimer’s disease. The foundation for the
government’s response – “Spar concluded that he could not opine as to whether
defendant suffered from any mental deficiency when he lied to federal
investigators in April 2013" – is false. GAB 28 (emphasis added). Completely
contrary to the government’s assertion, Spar opined: “I can state to a reasonable
medical certainty that . . . Mr. Baca was either in the pre-clinical stage . . . or the
MCI [mild cognitive impairment] stage of Alzheimer’s during his April 12, 2013
government interview” and “[i]n either stage, Mr. Baca’s Alzheimer’s increased
the probability that during [the] interview, memory impairment affected his
2
answers to questions about events and conversations that occurred 20 months
earlier in August-September 2011.” ER 407-08. The government discounts the
pre-clinical stage, GAB 28, but Spar stated that “underlying brain changes have
occurred” at the pre-clinical stage, and patients suffer deficits in memory, semantic
processing, and other cognitive decline at that stage. ER 402-03.
The government prefers its expert’s conclusion “that Mr. Baca’s
cognitive capacities were [not] significantly compromised during” the 2013
interview, ER 960 (emphasis added), and it believes other facts could have been
argued to show that his cognitive functioning was fine, GAB 29-30, but such a
dispute is what trials are for. And, the government’s expert could only state that
Mr. Baca’s cognitive capabilities were not significantly compromised during the
interview, but that does not mean they were not compromised at all. It is also
perplexing that the government would rest the foundation of its argument on the
false premise that Mr. Baca did not suffer from “any mental deficiency” at the time
of the interview because even its own expert agreed that Mr. Baca was already in
the MCI stage of Alzheimer’s by early 2014. GER 957.
The thrust of the government’s argument is that United States v.
Rahm, 993 F.2d 1405, 1412 (9th Cir. 1993) and its progeny are distinguishable
because the experts in those cases “actually diagnosed defects or deficiencies from
3
which defendants suffered at the time of their crimes.” GAB 36 (emphasis in
original). This is not a point of distinction because Spar clearly did diagnose Mr.
Baca as having a mental disease at the time of the April 2013 interview. Spar’s
opinion that Mr. Baca’s Alzheimer’s increased the probability that his answers
during the interview were affected by memory impairment was no different than
the expert testimony proffered in Rahm. Rahm, 993 F.2d at 1409-12. The
government’s apparent demand for a more conclusive opinion is inconsistent with
Fed. R. Evid. 704(b), which prohibits an expert from rendering a conclusive
opinion on a defendant’s mental state. Id. at 1411 n.3; see United States v.
Christian, 749 F.3d 806, 812 (9th Cir. 2014). The district court erred under Rahm
and its progeny, and the government has offered no persuasive contrary authority.1
The government also contends that Spar’s methodology was not
scientifically valid. GAB 38-39. This complaint does not avoid reversal for a new
trial because, to the extent it has any legitimacy, it should have been explored
through voir dire of the expert. Christian, 749 F.3d at 812-14 (reversing for new
trial even though there may have been unexplored foundational grounds to exclude
expert). In any event, the government has not raised a persuasive attack on Spar’s
1
The one post-Rahm criminal case cited by the government, United
States v. Redlightning, 624 F.3d 1090, 1110-13 (9th Cir. 2010), involved an expert
on interrogation techniques, not a defendant’s mental disease or defect.
4
methodology, nor does it explain why its expert’s methodology was any better.
GAB 38. Despite the government’s assertion, Spar’s opinion was not merely
based on a couple of anecdotes and certainly did not contravene contemporary
medical evidence. GAB 39. His opinion cited a plethora of scientific studies, ER
403, and included an evaluation of “[n]europsychological testing,” “MRI scans
showing loss of hippocampal and brain volume[,]” a “PET scan that showed
glucose hypometabolism in both temporal lobes[,]” and “CSF studies that showed
markedly elevated levels of tau and ptau, and low levels of beta-amyloid,
consistent with Alzheimer’s.” ER 406.
The government claims Spar’s testimony did not “fit” the facts, GAB
39-41, but has no response to United States v. Vallejo, 237 F.3d 1008, 1021 (9th
Cir. 2001), which rejected a similar argument. A defendant need not be
“delusional” to assert a mens rea defense to a false statements allegation. GAB
40. The government’s contention that memory impairment does not “fit” a claim
of unintentional false statements defies common sense and contravenes the
Supreme Court’s recognition that “faulty memory” is a valid defense in this
context. United States v. Dunnigan, 507 U.S. 87, 94 (1993).
Citing cases before Rahm or that did not involve the type of testimony
at issue here, see, e.g., United States v. Espinoza-Baza, 647 F.3d 1182, 1189-90
5
(9th Cir. 2011) (evidence that defendant’s grandfather was born in the United
States); United States v. Verduzco, 373 F.3d 1022, 1032-34 (9th Cir. 2004) (expert
on “drug culture”), the government contends that Spar’s testimony was properly
excluded under Fed. R. Evid. 403. GAB 42-45. The government does not address
the holdings in Rahm, 993 F.2d at 1415, Vallejo, 237 F.3d at 1021-22, and United
States v. Cohen, 510 F.3d 1114, 1126-27 (9th Cir. 2007), which rejected similar
Rule 403 arguments made by the government. Even if expert testimony about a
mental disease or defect could “evoke juror sympathy[,]” GAB 44, these cases
demonstrate that such evidence is so highly probative that it is not excludable
under a Rule 403 balancing, which requires the probative value to be
“substantially” outweighed by unfair prejudice. Fed. R. Evid. 403. In sum, the
district court erred in excluding the evidence.2
2
The exclusion also violated Mr. Baca’s constitutional right to present
a defense, United States v. Leal-Del Carmen, 697 F.3d 964, 969, 975 (9th Cir.
2012), although this Court need not reach the issue because reversal is required
even under the harmless error standard for evidentiary error. Vallejo, 237 F.3d at
1022 n.6; Rahm, 993 F.2d at 1416 n.6. The government contends the
constitutional argument was forfeited, GAB 49, but claims are forfeited, not
arguments, Pallares-Galan, 359 F.3d at 1095; see LeGras v. AETNA Life Ins. Co.,
786 F.3d 1233, 1237 n.6 (9th Cir. 2015); United States v. Wahid, 614 F.3d 1009,
1016 (9th Cir. 2010), and an offer of proof was all that was required. Fed. R. Evid.
103(a). The constitutional argument is a legal question, and given the efforts to
introduce the evidence, the government will not suffer prejudice if this Court
considers it. See United States v. Flores-Montano, 424 F.3d 1044, 1047 (9th Cir.
2005); United States v. Arambula-Ruiz, 987 F.2d 599, 607 (9th Cir. 1993).
6
The government does not argue the error was harmless as to the false
statements charge, thereby waiving any such claim. United States v. Rodriguez,
880 F.3d 1151, 1163-65 (9th Cir. 2018); United States v. Murguia-Rodriguez, 815
F.3d 566, 572-73 (9th Cir. 2016). Indeed, the government makes an implicit
concession that the error was not harmless, GAB 45, requiring reversal of Count 3.
The only question, then, is harmlessness as to the obstruction charges in Counts 1
and 2.
Citing a 1987 case addressing the failure to appoint an expert, United
States v. Christophe, 833 F.2d 1296, 1299 (9th Cir. 1987), the government
misleadingly suggests the burden is on the defendant to show by clear and
convincing evidence that the error was harmful. GAB 45. Whether or not this
unusual standard still applies in that context, the government clearly has the
burden of proving that an evidentiary error was harmless. United States v.
Gonzalez-Flores, 418 F.3d 1093, 1099 and n.3 (9th Cir. 2005).
The government contends Mr. Baca agreed that Spar’s testimony was
not relevant to the obstruction charges, GAB 46, but that was only if the
obstruction charges were tried separately and his alleged false statements were not
introduced, as was the case at the first trial. Obviously, all counts were
consolidated for the second trial, the very first words uttered by the prosecutor
7
were, “[a]n abuse of power to obstruct justice and lies to conceal his crime[,]” RT
533. and the government relied on the false statements as proof of the obstruction,
ER 36, 42, 56-58, making Spar’s testimony important to the obstruction charges.
Even though the jurors were instructed to consider each count separately, GAB 47,
that does not mean they would disregard the evidence of the alleged false
statements when deciding the obstruction charges, particularly when the
government urged them to do so. See United States v. de la Jara, 973 F.2d 746,
752 (9th Cir. 1992) (rejecting effort to limit harm of an error in admitting evidence
defendant had lied to certain counts).
The government relies on United States v. Hozian, 622 F.2d 439, 441-
42 (9th Cir. 1980), which merely found that any error in allowing evidence that the
defendant gave false biographical information was harmless due to the
overwhelming evidence. In Hozian, the defendant met with two undercover
agents on a sailboat where he presented them with one pound of cocaine and
stated that he would provide four more pounds at a designated location and could
provide ten pounds per month in the future; the agents immediately arrested him
and found more cocaine in his vest pocket. Id. at 440.
Unlike Hozian, the evidence supporting the obstruction counts was
far from overwhelming, so much so that a jury deadlocked 11-1 for acquittal on
8
those charges when the false statements were not admitted, demonstrating harmful
error. See United States v. Paguio, 114 F.3d 928, 935 (9th Cir. 1997); United
States v. Thompson, 37 F.3d 450, 454 (9th Cir. 1994); United States v. Schuler, 813
F.2d 978, 982 (9th Cir. 1987). The government does not even address these cases
and has failed to carry its burden of proving harmlessness as to the obstruction
charges. Vallejo, 237 F.3d at 1021-22. This Court should therefore reverse all
counts of conviction.
II. The district court erred by misapplying the hearsay rules to exclude
critical defense evidence, thereby committing prejudicial evidentiary error
and violating Mr. Baca’s constitutional right to present a defense.
The government urges plain error review of Mr. Baca’s claim that the
district court erroneously excluded his response to Assistant Sheriff Rhambo,
GAB 52,3 but it ignores the applicable rule and relies on the wrong line of
precedent. “A party may claim error in a ruling to admit or exclude evidence only
if the error affects a substantial right of the party and: (1) if the ruling admits
evidence, a party, on the record: (A) timely objects or moves to strike; and (B)
3
See Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725
(1993). Under the plain error test, “there must be (1) ‘error,’ (2) that is ‘plain,’ and
(3) that ‘affects substantial rights.’” Johnson v. United States, 520 U.S. 461, 467
(1997). “If all three conditions are met, an appellate court may then exercise its
discretion to notice a forfeited error, but only if (4) the error ‘seriously affects the
fairness, integrity, or public reputation of judicial proceedings.’” Id. at 467.
9
states the specific ground, unless it was apparent from the context; or (2) if the
ruling excludes evidence, a party informs the court of its substance by an offer of
proof, unless the substance was apparent from the context.” Fed. R. Evid. 103(a).
Thus, if the challenged ruling excluded evidence, all that is required
to preserve the claim is an offer of proof. The “specific ground” requirement only
applies to an objection to the admission of evidence. See Christian, 749 F.3d at
810 (rejecting argument that plain error review should apply to exclusion of
evidence because defendant offered different legal theories on appeal). The
government relies on cases involving an objection to the admission of evidence,
United States v. Chung, 659 F.3d 815, 833 (9th Cir. 2011), or did not involve an
evidentiary question at all. United States v. Del Toro-Barboza, 673 F.3d 1136,
1152 (9th Cir. 2012).4
The government does not dispute that a sufficient offer of proof was
made, which is all that is required under Rule 103(a). Indeed, Rhambo testified
about Mr. Baca’s response at the first trial, and therefore it is clear what evidence
4
The government does cite United States v. Sayakhom, 186 F.3d 928,
th
937 n.4 (9 Cir. 1999), which erroneously applied a waiver rule when there could
have been no more than a forfeiture. Fed. R. Evid. 103(e). The only case cited in
that footnote, United States v. Tisor, 96 F.3d 370, 376 (9th Cir. 1996), makes that
clear. Not only did Sayakhom misconstrue Tisor, but Tisor was a case involving
an objection to the admission of evidence, not the exclusion of evidence.
10
was excluded. The government repeatedly references a brief comment made by
defense counsel indicating that if he attempted to introduce Mr. Baca’s statement,
it would be hearsay. GAB 51-53. In “context,” Fed. R. Evid. 103(a), however,
counsel was arguing that if he affirmatively attempted to admit the statement for
the truth of the matter asserted, it would be hearsay, but once the government
introduced Rhambo’s comment to Mr. Baca, presumably for its effect on the
hearer, the door had been opened so that Mr. Baca’s response was no longer
hearsay. ER 229-33, 517. Counsel’s comments were consistent with how this
Court has treated the issue. See United States v. Waters, 627 F.3d 345, 357 (9th
Cir. 2010). Even if “inartful,” counsel’s repeated efforts to introduce the evidence
sufficiently preserved this claim. Christian, 749 F.3d at 810. Accordingly, de
novo review applies. See, e.g., United States v. Orellana-Blanco, 294 F.3d 1143,
1148 (9th Cir. 2002).5
5
The government ignores cases like Orellana-Blanco in asserting
abuse of discretion review. GAB 52. In any event, a district court abuses its
discretion when it makes an error of law, United States v. Hinkson, 611 F.3d 1098,
1114 (9th Cir. 2010) (en banc), and the district court made legal errors in
interpreting the hearsay rules. The government also argues that the constitutional
basis for admission was forfeited, but it is claims that are forfeited, not arguments,
Pallares-Galan, 359 F.3d at 1095, and counsel’s efforts were sufficient under
Rule 103(a). See Arambula-Ruiz, 987 F.2d at 607 (hearsay objection sufficient to
preserve Confrontation Clause claim); see also LeGras, 786 F.3d at 1237 n.6
(common law argument permitted even though only statutory argument made
below). The alternative constitutional argument is a legal question, and given Mr.
11
On the merits, the government does not directly address Mr. Baca’s
lead contention, which is that his response was admissible because it was not
offered “to prove the truth of the matter asserted in the statement.” Fed. R. Evid.
801(c)(2). Mr. Baca’s response to Rhambo was not offered to prove that the FBI
did in fact break the law, just like the government presumably did not offer
Rhambo’s obstruction comment to prove that Mr. Baca was in fact obstructing
justice. Citing the definition of a declarant, Fed. R. Evid. 801(b), the government
asserts that “[e]vidence of what was said at a meeting is, of course, hearsay in
most instances.” GAB 53. Not really, see United States v. Mateos, 623 F.3d
1350, 1363-64 (11th Cir. 2010); see also Waters, 627 F.3d at 358, and if that were
so, Rhambo’s obstruction comment at the meeting should not have been
admissible. As long as the statements were not admitted to prove the truth of the
matter asserted, they were not hearsay, and to allow Rhambo’s comment without a
limiting instruction while excluding Mr. Baca’s response was an “imbalance” and
“one-sided picture” that constituted evidentiary error. Id. at 357.
Even if Mr. Baca’s response were somehow hearsay, the state of mind
exception applied. See United States v. Peak, 856 F.2d 825, 833-34 (7th Cir.
Baca’s repeated requests to introduce the evidence, the government will not suffer
prejudice if this Court considers it. See Flores-Montano, 424 F.3d at 1047.
12
1988). The government ignores Peak and instead cites a case involving post-
arrest statements, United States v. Ortega, 203 F.3d 675, 678-79, 682 (9th Cir.
2000), which generally do not fall under the exception because they fail the
contemporaneous and chance of reflection requirements. See United States v.
Ponticelli, 622 F.2d 985, 992 (9th Cir. 1980). The government cites United States
v. Emmert, 829 F.2d 805, 810 (9th Cir. 1987) and United States v. Fontenot, 14
F.3d 1364, 1371 (9th Cir. 1994) in an effort to limit the state-of-mind exception to
“conditions” and not “beliefs,” GAB 54-55, but those cases were subsequently
limited by Wagner v. County of Maricopa, 747 F.3d 1048 (9th Cir. 2013), which
explained that the exception is only barred “when the statements are offered to
prove the truth of the fact underlying the memory or the belief.” Id. at 1053. Mr.
Baca’s response was not offered to prove that the FBI broke the law, making it
admissible under the Rules of Evidence.
The exclusion of the evidence on hearsay grounds also violated the
constitutional right to present a complete defense. See Chia v. Cambra, 360 F.3d
997, 1003-08 (9th Cir. 2004). The government contends that there was no
constitutional violation because the evidence was properly excluded under the
hearsay rules. GAB 55. There was evidentiary error, but to the extent the
government asserts there can only be a constitutional violation if the evidence was
13
improperly excluded under the rules, it is incorrect; instead, a constitutional
violation is simply easier to show if there was evidentiary error. United States v.
Stever, 603 F.3d 747, 755-66 (9th Cir. 2010).
The government maintains a defense was not precluded because other
evidence showed that Mr. Baca stated to the United States Attorney’s Office that
the FBI had committed a crime and he made similar statements in a television
appearance. GAB 56. The government’s theory, however, was that Mr. Baca took
this position in public as a front, and his real intent was only to obstruct the federal
investigation, as reflected in his private conversation with Rhambo. Thus, his
response to Rhambo was important and highly relevant evidence that was
improperly excluded, particularly given the emphasis that the government placed
on Rhambo’s obstruction comment during summations and the jury’s request for a
readback of his testimony. See Leal-Del Carmen, 697 F.3d at 971 (rejecting
argument that defense evidence erroneously excluded on hearsay grounds was
cumulative). Leal-Del Carmen also refutes the government’s position that the
exclusion of evidence can never really amount to a violation of the right to present
a complete defense because a defendant can always testify. Id. at 969, 975.
For the same reason, the government’s prejudice analysis is flawed.
While the government incorrectly applies the plain error standard, GAB 58-60, the
14
prosecutors’ heavy and repeated reliance on Rhambo’s obstruction comment
during closing arguments demonstrates prejudice even under the third and fourth
prongs of that test. United States v. Sauza-Martinez, 217 F.3d 754, 761 (9th Cir.
2000).6 Attempting to minimize that the only readback requested was for
Rhambo, the government argues the jurors could have been interested in other
aspects of his testimony. GAB 58-59. The combination of the prosecutors’
emphasis on Rhambo’s obstruction comment with the jury’s request for a readback
demonstrates a likelihood that this was a critical aspect of the deliberations.
The government ignores cases like Thompson, 37 F.3d at 454, and
instead cites United States v. Torres, 794 F.3d 1053, 1063-64 (9th Cir. 2015) in
contending that the different results at the two trials does not demonstrate
prejudice. GAB 59-60. The defendant in Torres was arrested with 73 kilograms
of cocaine in his truck, and there is no indication that the first trial there resulted in
an 11-1 deadlock for acquittal. Furthermore, in Torres, the jury in the second trial
only deliberated for a couple of hours before returning a guilty verdict, whereas
the jury at Mr. Baca’s second trial deliberated over the course of three days. And,
6
While the plain error standard does not apply, there was “error” that
was “plain” under the first two prongs given the longstanding authority
demonstrating that the evidence was erroneously excluded. See, e.g., Sauza-
Martinez, 217 F.3d at 760.
15
the jury in Mr. Baca’s case returned a guilty verdict immediately after hearing the
readback of Rhambo’s testimony. The combination of these factors demonstrates
prejudice under any standard. In sum, this Court should reject the government’s
claim of harmless error after it fought so hard to exclude the evidence. Leal-Del
Carmen, 697 F.3d at 973-74 (“The Assistant United States Attorney must have
believed the [statements erroneously excluded based on hearsay] made a
difference, else he wouldn’t have worked so hard to keep the jurors from hearing
them.”).
III. The district court erroneously empaneled an anonymous jury under

United States v. Sanchez, 74 F.3d 562 (5th Cir. 1996) and United States v.
Wecht, 537 F.3d 222 (3d Cir. 2008), requiring reversal of all counts of
conviction.
The government erroneously asserts that the district court issued
written findings supporting its decision to use an anonymous jury before the
second trial. GAB 60. The district court did not issue written findings until
March 26, 2017, after the second trial had concluded. ER 1-2; CR 350. The
written findings were not simply post-hoc, they were flawed.
The government concedes that Mr. Baca’s claim was generally
preserved (with one exception discussed later) and urges abuse of discretion
review. GAB 61. The government, however, does not address Hinkson, which
16
explained that a mixed question of law and fact requiring “judgment about the
values that animate legal principles” favors independent review, and such a
description fits the anonymous jury inquiry, particularly because it “implicate[s]
constitutional rights.” Hinkson, 585 F.3d at 1260.
Even under traditional abuse of discretion review, reversal is
required. The government attempts to shift the standard to clear error and asserts
Mr. Baca has not argued that the district court clearly erred. GAB 63. However,
Mr. Baca has contended that the district court made both legal errors at the first de
novo prong of the abuse of discretion test, Hinkson, 585 F.3d at 1261-62, and
illogical and unsupported inferences at the second prong of the test. Id. at 1263.
The government also ignores Mr. Baca’s citation to Taylor v. Maddox, 366 F.3d
992, 1001 (9th Cir. 2004), which explains that supposed fact-finding can amount to
clear error if it is infected with legal mistakes, particularly when the lower court
makes purported findings without conducting an evidentiary hearing, as was the
case here.
On the merits, the government fails to offer a developed response to
Mr. Baca’s contention that the district court should have at least disclosed the
jurors’ identities to the attorneys so they could perform jury selection. See United
States v. Barragan, 871 F.3d 689, 712 (9th Cir. 2017) (using anonymous jury in
17
Mexican Mafia case but disclosing jurors’ identities to the attorneys “in advance
to do background checks, without divulging those names to their clients”).7 For
this reason alone, there was error, as there could be no possible fear of juror
intimidation by the attorneys. The government argues that anonymous juries
safeguard jurors from investigation, GAB 66-67, but, even in the most dangerous
cases, Congress has respected a defendant’s right to investigate prospective jurors.
See 18 U.S.C. § 3432 (requiring names and addresses of veniremen to be provided
at least three days before the commencement of a capital trial). The government
does not explain why shielding jurors from investigation “in the internet age . . . is
precisely the point.” GAB 66. The alleged privacy right of a juror to prohibit a
defendant and even his attorney from viewing information on the internet that the
entire world can see does not outweigh long-established jury-trial rights in this
context.8
7
The government relies on United States v. Brown, 303 F.3d 582, 602
th
(5 Cir. 2002), but the district court in that case allowed “extensive voir dire” and
used “an exhaustive 42-page juror questionnaire.” Here, the district court did not
allow extensive, if any, attorney-conducted voir dire, and it appears that the only
questionnaire was a standard one limited to hardship excuses. RT 5 (Feb. 22,
2017, Volume 1).
8
Speaking of the internet, the government does not logically explain
why using an anonymous jury would “ensure that the jurors were not exposed to
the litigation history of the case.” GAB 63. A juror, whether named or
anonymous, could find out about the litigation history with a few taps of his
18
The government repeats the district court’s rationale that Mr. Baca
was charged with an “organized criminal conspiracy,” GAB 64, but never directly
responds to his argument that this was “legal” error because the relevant factor is
whether the defendant was involved with “organized crime,” a term covering
violent gangs like the Mexican Mafia. United States v. Shryock, 342 F.3d 948,
971-72 (9th Cir. 2003). Even if “organized crime” means any conspiracy,
“‘something more’ than the organized-crime label is required in order to justify
juror anonymity.” United States v. Mansoori, 304 F.3d 635, 651 (7th Cir. 2002).
In Mansoori, the Seventh Circuit held that the district court abused its
discretion in empaneling an anonymous jury in a drug case even though it
involved “a large-scale, gang-related operation with ready access to firearms . . . .”
Id. at 651. The Seventh Circuit explained: “True, the defendants may have had
the ability to intimidate jurors through associates who were not incarcerated, but
that is true of many defendants. What demonstrates the need for jury protection is
not simply the means of intimidation, but some evidence indicating that
intimidation is likely. No such evidence is presented here. Nor is there evidence
that the defendants had engaged in a pattern of violence unusual enough to cause
phone. The only thing that anonymity does is frustrate efforts to investigate such
juror taint. United States v. Wecht, 537 F.3d 222, 241-42 (3d Cir. 2008).
19
jurors to fear for their safety.” Id. (emphasis added) (citations omitted). The
government has not identified any violence, let alone a pattern of unusual
violence, and does not even mention a single fact since the time of the mere one-
month period of activity way back in 2011 that could possibly demonstrate the
likelihood of juror intimidation.9
The government argues it was reasonable to infer that Mr. Baca,
although retired for three years, maintained connections to officers who could
access jurors’ private information. GAB 63. The government has still failed to
explain what “private information” could be accessed by officers that could not be
accessed by any private investigator. Straining reason, the government claims
officers could “track” jurors with GPS monitoring, but it does not explain what
possible benefit Mr. Baca could have obtained by such efforts, nor has it identified
a single officer who would have been willing to do so. GAB 64.
The government can only speculate about imaginary officers, not
coconspirators, because the latter were in custody or had been offered substantial
9
In addition to ignoring the dated nature of the allegations and the
responsiveness to the federal investigation in the ensuing years, the government
spins various facts without providing the context. For example, the government
mentions that Mr. Baca told the FBI to prepare to “gun up” for battle, GAB 65, but
omits that, despite this mere hyperbole, all parties left the meeting shaking hands
and looking forward to future cooperation. RT 2189.
20
benefits to testify for the government. Putting aside the speculative nature of these
imaginary officers, the government merely argues it was reasonable to infer that
Mr. Baca still had connections to them and they had the ability to investigate
jurors, but it does not logically establish or even argue the needed connection
between these two purported facts – whether officers were likely to do so.
Mansoori, 304 F.3d at 651; United States v. Sanchez, 74 F.3d 562, 565 (5th Cir.
1996). In any event, the relevant factor considers whether these imaginary officers
were likely “to harm jurors[,]” Shryock, 342 F.3d at 971, not investigate them, and
the government does not even make such an argument. There was not a hint of
juror intimidation in prior related trials without anonymous juries.
The government maintains that jurors in the prior trials expressed
“privacy and safety fears” and disputes a mere two had done so. GAB 64 and
n.11. The district court specifically stated “two separate jurors[,]” ER 334, and the
problem is that it did not provide specifics about these jurors and what they
exactly said, making it impossible for this Court to credit this rationale on this
record. Wecht, 537 F.3d at 240. Perhaps these jurors wanted to get out of jury
duty, or had some beef with law enforcement, or simply raised a tentative concern
that was easily allayed with a response from the judge. And even if two (or three
or four) out of hundreds of potential jurors expressed a concern, that is not cause
21
for an anonymous jury. In virtually every trial, a handful of potential jurors may
fear being contacted by a party, or his or her associates. Id. at 241.
The government doubles-down on the district court’s rationale that
Mr. Baca was facing lengthy incarceration, GAB 65, which was an erroneous legal
interpretation of this factor. Shryock, 342 F.3d at 971-72. The lower-level
felonies in this case, with a relatively average if not light guidelines range, are not
the type of penalties that would justify an anonymous jury, as they are “hardly
unusual” and would mean that this factor weighs in favor of an anonymous jury in
virtually every case. Mansoori, 304 F.3d at 651. Ironically, the government touts
the “aggregate statutory maximum sentence” of 20 years, GAB 65, which is hardly
unusual for a federal case, but later argues that it is “misleading” to combine
statutory maximum penalties because there is no “realistic possibility” a defendant
would receive such an aggregate sentence. GAB 86, 88.
As for the “media attention” given to the case, GAB 66, the
government has no real response to Wecht, 537 F.3d at 240 and n.34, which
rejected a similar “conclusory and generic” reliance on publicity. “The
participation of jurors ‘in publicized trials may sometimes force them into the
limelight against their wishes,’ but ‘[courts] cannot accept the mere generalized
privacy concerns of jurors’ as a sufficient reason to conceal their identities in
22
every high-profile case.” Id. (citation omitted). The government attempts to limit
Wecht as purely a First Amendment case and claims Mr. Baca has no such right,
GAB 67-68, but First Amendment and Sixth Amendment protections are
coextensive in this context. See Presley v. Georgia, 558 U.S. 209, 212-13 (2010)
(public trial right during jury voir dire).10
Finally, this Court should reject the government’s harmless-error
contention. The government asserts that “no case” holds the error is structural, but
it cites “no case” that explicitly addresses the issue. GAB 69. The government
has no response to Mr. Baca’s contention that this error is akin to public trial and
jury selection errors that are deemed structural or are otherwise not amenable to
harmless error analysis. In any event, the error was not harmless. The district
court’s instructions, GAB 69-70, did not address Mr. Baca’s ability to select a jury
or restore his right to a personalized verdict by “known fellow citizens.” Sanchez,
74 F.3d at 565. The government claims it presented “substantial evidence” of
10
The government simultaneously contends that First Amendment
issues should be reviewed for plain error. GAB 68 n.13. However, “it is claims
that are deemed waived or forfeited, not arguments.” Pallares-Galan, 359 F.3d at
1095; see United States v. Guzman-Padilla, 573 F.3d 865, 877 n.1 (9th Cir. 2009).
Mr. Baca’s reliance on Wecht is simply further argument in support of his
consistent claim that it was error to use an anonymous jury. Consideration of the
First Amendment interests is a legal question, and given Mr. Baca’s objections in
the district court, the government will not suffer prejudice if this Court considers
those interests when deciding this claim. See Flores-Montano, 424 F.3d at 1047.
23
guilt, GAB 69, but Mr. Baca was nearly acquitted at the first trial and the jury
engaged in extensive deliberations at the second trial. United States v. Velarde-
Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (en banc). The government argues
that the near acquittal actually demonstrates the error was harmless. GAB 70. The
fact that the government’s case was so weak that Mr. Baca was almost able to
overcome an anonymous jury and win the first trial does not support the
government’s claim of harmless error. See United States v. Kallin, 50 F.3d 689,
695 (9th Cir. 1995).
IV. Under this Court’s common law and supervisory powers, the district
court erred by refusing Mr. Baca’s request for an Allen charge and declaring
a mistrial at the first trial, thereby requiring dismissal of Counts 1-2;
alternatively, retrial on Counts 1-2 violated the Double Jeopardy Clause.
The government begins with double jeopardy rather than supervisory
powers. This Court, however, should “avoid constitutional questions when an
alternative basis for disposing of the case presents itself.” United States v.
Sandoval-Lopez, 122 F.3d 797, 802 n.9 (9th Cir. 1997) (avoiding double jeopardy
question by granting relief on alternative basis). Thus, this Court should start with
supervisory powers before proceeding to double jeopardy.
The government does not dispute that a district court’s rulings
regarding jury instructions need not rise to a constitutional violation to establish
24
error, United States v. Rubio-Villareal, 967 F.2d 294, 297-98 (9th Cir. 1992) (en
banc), and that rules governing the use of Allen charges and responses to
deadlocked juries are a prime example of supervisory power authority. Smith v.
Curry, 580 F.3d 1071, 1080 (9th Cir. 2009); see Lowenfeld v. Phelps, 484 U.S.
231, 239-40 nn. 2&3 (1988); Brasfield v. United States, 272 U.S. 448 (1926);
United States v. Williams, 547 F.3d 1187, 1205-07 (9th Cir. 2008); United States v.
Seawell, 550 F.2d 1159, 1163 (9th Cir. 1977). In essence, the government
concedes that this Court can establish rules granting defendants more protections
than the Double Jeopardy Clause, but it does not like the rule proposed because it
gives a defendant “a greater right” than the prosecution. GAB 83.
The government, however, does not dispute the rationale underlying
the proposed rule. That is, granting a defendant’s request for an Allen charge in
these circumstances poses no discernible downside while satisfying the twin
purposes of such an instruction – conserving resources by preventing a second
trial, see Lowenfeld, 484 U.S. at 252 (Marshall, J., dissenting), and protecting a
defendant’s deeply “valued right to have his trial completed by a particular
tribunal.” United States v. See, 505 F.2d 845, 851 (9th Cir. 1974); see Green v.
United States, 355 U.S. 184, 187-88 (1957). While the government protests a rule
affording defendants “a greater right,” it fails to acknowledge that it is the
25
defendant who possesses the valued right. Creating a rule affording defendants a
greater right than the government is hardly unusual, and the government has its
own share of advantages, like its ability to offer extraordinary benefits to
witnesses in exchange for their testimony, something a defendant cannot do.
The government contends that a defendant has no right to acquittal by
coercion. GAB 83. The proposed rule specifically contemplates that an Allen
charge for a defendant is still disallowed when it would be coercive under this
Court’s precedent. The government alleges that there “might have been” per se
coercive circumstances in this case. GAB 83 n.18. The government can only
muster tentative language because such circumstances clearly did not exist.
Although an Allen charge is coercive if given after the judge inquires into the
numerical division of the jury, id., no such inquiry was made in this case.
The government repeats the misrepresentation that Juror No. 12
revealed there was a single holdout to convict but then backs off, stating that an
11-1 split for acquittal was a logical inference from the juror’s comments. GAB
84. While the parties may have guessed correctly as to the direction the jury was
leaning, Juror No. 12 clearly did not disclose the numerical breakdown and
otherwise create a per se coercive situation. See United States v. Della Porta, 653
F.3d 1043, 1051 (9th Cir. 2011) (no coercion although parties may have been able
26
to guess the issue hanging up the jury from its notes); see also Harrison v.
Gillespie, 640 F.3d 888, 905 (9th Cir. 2011) (en banc) (rejecting logical inferences
about jury’s vote). Even if the juror had explicitly stated the numerical division,
an Allen charge was still permissible and not per se coercive. United States v.
Ajiboye, 961 F.2d 892, 893-94 (9th Cir. 1992). The government attempts to create
ambiguity in this Court’s precedent by citing Sanders v. Lamarque, 357 F.3d 943,
944 (9th Cir. 2004), but Sanders involved removal of a juror, not an Allen charge.
This Court has repeatedly followed Ajiboye and stated that a judge can give an
Allen charge when the division of the jury has been disclosed. Williams, 547 F.3d
at 1206 (citing cases).11
The government ultimately maintains that a district court should have
unfettered discretion to refuse a defense request for an Allen charge or for other
measures when faced with a potentially deadlocked jury. GAB 84. But
supervisory powers cases have sought to restrict the bounds of discretion in this
context, and the government has not provided a convincing reason why the district
11
Although Williams ultimately found that reversal was required, this
Court explicitly “commended” the district court for its use of an Allen charge in an
effort to salvage a verdict after a lengthy trial. Williams, 547 F.3d at 1207 n.18.
The government, however, maintains that Allen charges are still disfavored in this
Circuit and cites cases from nearly 40 and 25 years ago. GAB 82. As Williams
demonstrates, times have changed.
27
court rejected Mr. Baca’s requests given the circumstances. If a defendant’s right
to have the selected jury decide his case is truly “valued,” See, 505 F.2d at 851,
and entitled to the “deepest respect,” United States v. Lara-Ramirez, 519 F.3d 76,
82 (1st Cir. 2008), then a court should grant him alternatives in the face of a
potential deadlock. See United States v. Jefferson, 566 F.3d 928, 936 (9th Cir.
2009) (case cited by government where mistrial was appropriate when a jury again
announced a deadlock after Allen charge was given at defendant’s request, as a
second Allen charge is prohibited under Seawell); United States v. Salvador, 740
F.2d 752, 754 (9th Cir. 1984) (same). Otherwise, the lofty statements made in
cases like Green, 355 U.S. at 187-88, have little force. At least given the
circumstances of this case, reversal is appropriate pursuant to supervisory powers.
Alternatively, this Court should find a double jeopardy violation. The
government recognizes that a motion to dismiss based on double jeopardy is
reviewed de novo but contends that a trial judge’s decision to declare a mistrial
based on manifest necessity is reviewed for abuse of discretion. GAB 73-74. To
the extent an abuse of discretion standard is involved, more independent review is
appropriate because the inquiry requires “judgment about the values that animate
legal principles” and “implicate[s] constitutional rights.” Hinkson, 585 F.3d at
1260; see also United States v. Bonas, 344 F.3d 945, (9th Cir. 2003) (finding
28
double jeopardy violation and stating that the level of discretion “varies according
to the circumstances of each case”).
In an effort to cast the inquiry as highly deferential, the government
repeats an observation in Renico v. Lett, 559 U.S. 766, 775 (2010), that the
Supreme Court has never overturned a trial court’s declaration of a mistrial after a
jury was unable to reach a verdict. GAB 75. But the Supreme Court Reporter is
not exactly filled with decisions affirming trial courts in this context either, as
defendants typically request a mistrial under the circumstances; indeed, the
defendant in Renico did not object to the mistrial. Renico, 559 U.S. at 771.12
Furthermore, Renico explicitly stated that there is no “absolute deference to trial
judges in this context[,]” and “close appellate scrutiny is appropriate.” Id. at 775
(emphasis in original). The Court made these comments even in light of the
highly deferential AEDPA standard of review applicable in Renico. The
government maintains that the “legal principles” in Renico govern on direct
review, GAB 75 n.14, but the Court advised that the result reached by the trial
court may have been incorrect and the outcome may have been different had the
12
The defendant in Arnold v. McCarthy, 566 F.2d 1377, 1386 (9th Cir.
1978), another habeas case relied upon by the government, did not object when a
mistrial was declared. The same is true for United States v. Hernandez-Guardado,
228 F.3d 1017, 1028-29 (9th Cir. 2000), also cited by the government.
29
AEDPA standard not applied. Renico, 559 U.S. at 778. The district court
incorrectly relied on Renico as if it established virtually unfettered discretion to
declare a mistrial. ER 288-91.
The government does not persuasively address the factors articulated
in Ninth Circuit double jeopardy precedent. Rogers v. United States, 609 F.2d
1315, 1317 (9th Cir. 1979). With respect to the length and complexity of the trial,
the government complains that Mr. Baca’s trial was only twice, not approximately
three times, as long as the trial in See. GAB 78-79 n.16. The government arrives
at this estimate by excluding voir dire from Mr. Baca’s trial but including it in the
time estimate for See, which makes no sense, and then rounds down to spin the
numbers in its favor. The bottom line is that Mr. Baca’s trial was significantly
longer than the trial in See, and other parts of the government’s brief maintain that
the trial was lengthy and complex. GAB 106-07.
When considering complexity, the government does not address the
specific circumstances or the notes sent by the jury and instead simply makes a
general assertion that the case was “relatively simple.” GAB 80. The government
does not explain why it needed three attorneys to try this “relatively simple” case.
The government also cites out-of-circuit cases that were far less complex – a six-
hour gun-possession trial, United States v. Taylor, 569 F.3d 742, 746 (7th Cir.
30
2009), and a much shorter false statements trial where the judge did give a
modified Allen charge before declaring a mistrial. United States v. Barbioni, 62
F.3d 5, 7 and n.1 (1st Cir. 1995). The charges at Mr. Baca’s first trial were
different than these cases and included conspiracy, a complicated offense, United
States v. Arlt, 41 F.3d 516, 521 (9th Cir. 1994), and the length of the trial and the
jury’s notes reflect that it was much more complex.
As far as the length of the deliberations, the government insists that
the jury deliberated for 24 hours, not 20 hours, GAB 78 n.15, but never really
responds to the point that this estimate included readbacks of testimony and other
breaks. United States ex rel. Russo v. Superior Court of New Jersey, 483 F.2d 7,
11 (3d Cir. 1973) (reversing for double jeopardy violation and noting that record
was unclear about whether the jury was deliberating while note for readback was
being answered); see also Bonas, 344 F.3d at 948-49 (finding double jeopardy
violation where record based on district judge’s statements alone). Even if 24
hours, the deliberations were but a third of the length of the trial. The government
cites cases where there were shorter deliberations, GAB 78, but the trials were far
shorter, and therefore those deliberations were proportionately longer. See, e.g.,
Renico, 559 U.S. at 770-71 (trial, including jury selection, lasted 9 hours;
deliberations lasted 4-5 hours).
31
There is no dispute that Mr. Baca repeatedly objected to the mistrial.
The government ignores this factor and relies on cases where the defendant did not
object, essentially foreclosing a double jeopardy claim. Renico, 559 U.S. at 771;
Hernandez-Guardado, 228 F.3d at 1028-29; Arnold, 566 F.2d at 1386. In the
cases cited by the government where the defendant did object, the trial court
generally gave an Allen charge before declaring a mistrial. Jefferson, 566 F.3d at
936; Barbioni, 62 F.3d at 7 and n.1; Salvador, 740 F.2d at 754. This is the
unusual case where the trial court refused the defendant’s request for such a
charge, failed to take any other measures, and instead declared a mistrial over a
defense objection.
Finally, the government points to no facts indicating coercion or
exhaustion. In Renico, for example, the jury sent a note “indicat[ing] that its
discussions may have been particularly heated . . . .” Renico, 559 U.S. at 772.
Nothing like that occurred here. Instead, “the trial judge did not ask the jury about
its physical condition,” and the “jury never indicated that it was exhausted.”
Russo, 483 F.2d at 15. “In short, there is nothing on the record to distinguish the
physical condition of this jury from the condition of any other jury that has heard
nine days of testimony and deliberated for fifteen hours.” Id. at 15-16. While the
deliberations may have been slightly longer than in Russo, that jury deliberated
32
late into the night and was forced to sleep at a hotel, and the Third Circuit still
found a double jeopardy violation. Id. at 10-11. The jurors in this case kept
regular hours, were not forced to spend their nights at a hotel, and there was no
indication whatsoever of exhaustion or coercion. In sum, all of the factors
discussed in the case law demonstrate a double jeopardy violation, requiring
reversal of Counts 1 and 2.
V. The district court gave a non-pattern instruction on the “cooperating”

witness process that was erroneously one-sided and misleading, thereby
requiring reversal of all counts.
Mr. Baca has challenged the jury instruction stating: “[T]he Court is
in no way required to impose any sentence that the government recommends. The
Court considers many factors, including the seriousness of the offense and
whether the defendant has a criminal history, in imposing the sentence.” ER 179
(emphasis added). The government primarily contends that the instruction
corrected the defense’s “misleading” cross-examinations of the cooperating
witnesses regarding the maximum sentences they faced. GAB 86, 88. The
government did not object to the cross-examinations regarding the maximum
penalties. GER 122-23, 159-60, 385-88, 389-95. If improper, the appropriate
procedure would have been to object; the appropriate response was not to give a
flawed instruction. See United States v. Weatherspoon, 410 F.3d 1142, 1150 (9th
33
Cir. 2005). Furthermore, the government’s contention that the instruction was
designed to cure this particular cross-examination makes little sense. As the
government recognizes, GAB 89, the instruction informed the jury that it should
consider the evidence regarding the maximum sentences, ER 179, directly
undercutting the claim that the instruction was designed to cure this purportedly
improper aspect of the cross-examination.
The government overstates United States v. Larson, 495 F.3d 1094,
1106 (9th Cir. 2007) (en banc) in arguing that this particular cross-examination
was “misleading.” In Larson, this Court merely held that a district court may not
abuse its discretion in excluding cross-examination about maximum sentences as
long as it otherwise permits sufficient questioning regarding the potential benefits
the witness may receive under his agreement, which that particular district court
failed to do. Id. at 1106-07. While the potential maximum sentence may not be as
probative as a mandatory minimum sentence, id. at 1106, this Court did not hold
that inquiry into a maximum sentence is always misleading, or even ever
misleading. Perhaps that is why the government did not object to the cross-
examination based on Larson at trial.
The government maintains the instruction that “the Court is in no way
required to impose any sentence that the government recommends” correctly
34
stated the law. GAB 87-89. But the instruction was akin to a “half-truth,” as it
“omitt[ed] critical qualifying information.” Universal Health Servs., Inc. v. United
States ex rel. Escobar, 136 S. Ct. 1989, 2000 (2016); see United States v. Lloyd,
807 F.3d 1128, 1153 (9th Cir. 2015). The instruction omitted that the court is
supposed to give “substantial weight” to the prosecutors’ recommendation.
U.S.S.G. § 5K1.1; United States v. Ressam, 679 F.3d 1069, 1092-93 (9th Cir. 2012)
(en banc). A court must take “great care” that an instruction “not be one-sided[,]”
Quercia v. United States, 289 U.S. 466, 470 (1933), and the instruction fell well
short of that standard, as it did not even mention cooperation at all when
specifying the relevant sentencing factors.
The government maintains that the instruction actually helped the
defense by directing the jury to consider the evidence regarding the maximum
penalties. GAB 89.13 It is a wonder, then, why the government requested and
proposed the language in the instruction, while the defense vigorously objected to
it. This Court should be skeptical of the government’s belated contention that it
was only seeking to help the defense. See Garcia-Aguilar v. United States District
Court for the Southern District of California, 535 F.3d 1021, 1023 (9th Cir. 2008)
13
Despite the government’s assertion, GAB 89, the instruction did not
require the jurors to consider this information, as it only stated that they “should”
do so. ER 179.
35
(“the ten most terrifying words in the English language may be ‘I’m from the
government and I’m here to help you’”).
Finally, the government does not offer much of an argument on
harmless error and simply repeats the insincere assertion that the instruction really
helped the defense. GAB 90. The government also contends the defense was able
to argue that the cooperators were compromised by potential sentencing benefits
during summations, id., but the arguments were undermined by the instruction and
do not demonstrate harmlessness, United States v. Bernard, 625 F.2d 854, 857 (9th
Cir. 1980) (rejecting same harmless error argument); see also United States v.
Bear, 439 F.3d 565, 570 (9th Cir. 2006), particularly given the importance of the
cooperator testimony, CR 398, 481, and the closeness of the case, as reflected by
the extended deliberations at the retrial and the near acquittal at the first trial when
the instruction was not given. Leal-Del Carmen, 697 F.3d at 975-76; Thompson,
37 F.3d at 454.
VI. The district court gave erroneous non-pattern instructions on the

obstruction of justices charges that tainted the requisite mens rea and
undermined the defense.
The government contends that this Court should review the
instructions on the obstruction counts for abuse of discretion, GAB 90, but de
novo review applies to the question of whether the instructions properly stated the
36
elements, Rodriguez, 880 F.3d at 1159; United States v. Munguia, 704 F.3d 596,
598 (9th Cir. 2012), and otherwise undermined the defense. United States v.
Cortes, 757 F.3d 850, 857 (9th Cir. 2014). The government contends Mr. Baca
waived any mens rea challenge, GAB 98, but he objected that the disputed non-
pattern instruction corrupted the intent requirement and undermined his defense
that he believed the federal investigation had been conducted unlawfully, ER 219,
which was sufficient to preserve the claim. See Arthur Andersen LLP v. United
States, 544 U.S. 696, 707 n.10 (2005) (argument on appeal did “not mirror”
argument in district court but was “sufficient to comply with Rule 30(d)”);
Rodriguez, 880 F.3d at 1158-59; United States v. Pineda-Doval, 614 F.3d 1019,
1025-26 (9th Cir. 2010).
Furthermore, as explained below, the recent decision in Marinello v.
United States, 138 S. Ct. 1101, 1108 (2018) confirms that the instructions failed to
set forth the requisite “corruptly” intent and otherwise undermined Mr. Baca’s
mens rea defense. Thus, even if his objections were somehow insufficient, the
Supreme Court’s intervening opinion in Marinello defeats the government’s claim
of waiver. See United States v. Keys, 133 F.3d 1282, 1286 (9th Cir. 1998) (en
banc); see also United States v. Burt, 143 F.3d 1215, 1217 (9th Cir. 1998).
On the merits, Mr. Baca has relied on Arthur Andersen, 544 U.S. at
37
705, to claim that the instructions did not adequately define the requisite
“corruptly” mens rea, and, given the unique circumstances, this defect was
exacerbated by the instruction that the sheriff could not use his “authority to
engage in what ordinarily might be normal law enforcement practices, such as
interviewing witnesses, attempting to interview witnesses or moving inmates, for
the purpose of obstructing justice.” ER 180-81. The government ignores Arthur
Andersen and does not dispute that if Mr. Baca genuinely believed the federal
investigation was illegal, then his intent to obstruct it through normal law
enforcement practices would not constitute a violation of the statute.
The government likely avoids Arthur Andersen because, in Marinello,
it recently conceded that “corruptly” in a similar statute means the defendant must
act “with ‘the specific intent to obtain an unlawful advantage’ for [himself] or
another.” Marinello, 138 S. Ct. at 1108 (emphasis added).14 Nothing in the
instructions conveyed this requirement or the “requisite consciousness of
wrongdoing.” Arthur Andersen, 544 U.S. at 706. Although the government
14
While not mentioning Arthur Andersen by name, the government
simply complains it is a “decade-old.” GAB 98. A Supreme Court case dating
back a mere decade would seem to be solid authority, and it is perplexing that the
government complains about the age of Arthur Andersen when it relies on an
almost four-decade old Ninth Circuit case. GAB 98. In any event, the Court’s
2018 opinion in Marinello is quite timely.
38
emphasizes that the instructions “unequivocally” required an intent to obstruct the
federal investigation, GAB 93-94, such an intent is insufficient, particularly given
the circumstances and other instructions given in this case. Indeed, the instruction
allowing the jury to convict Mr. Baca based on lawful and authorized law
enforcement practices exacerbated the error.
The government contends that, under the instructions, the jury would
have acquitted if it found that Mr. Baca was merely investigating potential
violations of state law. GAB 94. The problem, however, is that the jury could
have convicted under the instructions by finding that Mr. Baca intended to
obstruct the federal investigation even though he believed that the investigation
was unlawful. Given Mr. Baca’s law enforcement position, he would not have
acted “corruptly” if his purpose was to obstruct or terminate an unlawful
investigation.15
15
Notification to at least some state authorities before commencing an
undercover federal operation like the one conducted here may be required to avoid
such cross-jurisdictional disputes. Mr. Baca has never contended that notification
to the authorities being investigated is required, thereby defeating the point of an
undercover operation, GAB 92, but instead has simply suggested that notification
to other state authorities would suffice. Mr. Baca has also never contended that
United States v. Murphy, 768 F.2d 1518, 1529 (7th Cir. 1985) definitively supports
his position, but the government’s suggestion that Murphy rejected it is wrong.
GAB 92-93. Murphy declined to resolve the issue because notification to state
authorities was given in that case. The point is that the law is not clear, although
the jury instructions stated otherwise.
39
Perhaps the instructions would not have constituted reversible error if
the obstructive conduct at issue was inherently illegal, such as paying a witness to
commit perjury, or if the defendant did not have the legal authority to investigate
violations of law, or if a good faith instruction had been given. See United States
v. Smith, 831 F.3d 1207, 1219 n.18 (9th Cir. 2016). In this context, however,
instructing the jury that corruptly simply meant an intent to obstruct the federal
investigation and that it could convict Mr. Baca based on normal law enforcement
practices was deficient. The instructions as a whole did not convey the requisite
mens rea and undermined the defense, and the conspiracy instruction’s use of the
word “willfully,” GAB 93-94, did not cure the error as to the defective explication
of the obstruction offense. United States v. Kim, 65 F.3d 123, 125-26 (9th Cir.
1995).16
The government contends that the instruction corrected “misleading
suggestions” made by the defense during cross-examination. GAB 90-91.
Although the government may not have liked the defense, it was not improper or
16
Despite the government’s claim that Mr. Baca has attempted “to
bootstrap objections to different instructions that were not contested below[,]”
GAB 97-98; see GAB 95, he has simply argued that the instructions when viewed
as a whole did not convey the requisite elements, particularly because, unlike
Smith, a good faith instruction was not given. The other instructional defects
support his position on the inadequacy of the charge as a whole.
40
misleading, and the government cites no authority to support its position that the
district court can dilute the requisite elements of the offense to “correct” purported
misleading witness examinations. Such a two-wrongs-make-a-right approach
makes no sense and has no legal basis. See Weatherspoon, 410 F.3d at 1150.
Because the jury was allowed to convict under an incorrect theory,
this Court “cannot conclude that the errors in the jury instructions were ‘harmless
beyond a reasonable doubt.’” McDonnell v. United States, 136 S. Ct. 2355, 2375
(2016). The government claims that Smith shows there was no prejudice, GAB
97, but the instructional claims made in Smith were different, and this Court relied
on the good faith instruction given in that case in finding no harm, Smith, 831 F.3d
at 1219-21, while no good faith instruction was given here. The Supreme Court
also decided Marinello after Smith, and therefore this Court did not consider
prejudice in light of the now-clarified “corruptly” standard.
Furthermore, the jury in this case sent a note seeking clarification
regarding the legality of the FBI investigation. CR 340. The government
contends that the note merely shows that the jury was misled by the defense. GAB
96. The government’s self-fulfilling position appears to be that anything
supporting or showing consideration of the defense must be the result of defense
41
impropriety.17 The note demonstrates prejudice, even if the plain error standard
applies. United States v. Gergen, 172 F.3d 719, 724 (9th Cir. 1999). Particularly
given the closeness of this case and the prior 11-1 deadlock for acquittal when the
non-pattern instruction was not given, the instructional error was prejudicial, as it
was a defect that “go[es] to the very heart of a criminal proceeding.” United States
v. Murphy, 824 F.3d 1197, 1205 (9th Cir. 2016) (reversing under plain error
standard); see Bear, 439 F.3d at 569-71 (same); United States v. Alferahin, 433
F.3d 1148, 1158-60 (9th Cir. 2006) (same).
VII. The prosecutor committed misconduct during closing arguments,

including personally attacking defense counsel, vouching for the government,
and arguing evidence for an improper purpose, thereby violating this Court’s
common law rules and Mr. Baca’s constitutional rights to counsel and due
process.
The government’s response to the closing argument misconduct claim
is typical – blame defense counsel and plain error. This Court should reject both
17
If any impropriety was the cause of the note or juror confusion, it was
more likely the government’s erroneous opening statement, which repeatedly told
the jury that the Supremacy Clause completely prohibited a local investigation of
federal authorities. RT 562, 568, 570. The government states that Mr. Baca has
not explained how the opening statement was inaccurate, GAB 96-97, but he has
cited Supremacy Clause precedent establishing that, contrary to the government’s
opening, “a state may prosecute federal agents if they have acted unlawfully in
carrying out their duties.” Idaho v. Horiuchi, 253 F.3d 359, 365-66 (9th Cir.) (en
banc) (citing United States ex rel. Drury v. Lewis, 200 U.S. 1 (1906)), vacated as
moot, 266 F.3d 979 (9th Cir. 2001) (en banc).
42
excuses. The government argues that Mr. Baca’s claim that the prosecutor
improperly attacked defense counsel while simultaneously vouching for the
government was not adequately preserved, GAB 99, 103-04, but, after arguments
concluded, defense counsel objected, raising a litany of improper attacks on him
during the rebuttal, ER 4-34, which was sufficient to preserve the claim. United
States v. Prantil, 764 F.2d 548, 555 n.4 (9th Cir. 1985); United States v. Lyman,
592 F.2d 496, 499 (9th Cir. 1978).
On the merits, the government blames defense counsel, arguing that
he misled the jury, GAB 100-03, but, after summations, the district court
reconsidered the purported misrepresentations and evidently determined that the
objections to the defense arguments had been erroneously sustained. ER 4-34. In
essence, the government quibbles with the interpretation that defense counsel
placed on certain facts, which is within the bounds of advocacy. There was also
nothing wrong with defense counsel making common arguments, like referencing
the reasonable-doubt standard as distinguishing the American justice system,
attacking the credibility of the cooperating witnesses, and mentioning his client’s
age and experience. GAB 101-03. Even if there were somehow a problem with
such arguments, they cannot provide a basis for government misconduct under the
invited reply rule. Weatherspoon, 410 F.3d at 1150 (“the prosecution is not
43
allowed to use improper tactics even in response to similar tactics by the
defense”).
The government cites plain error cases, see Barragan, 871 F.3d at
703, or cases that distinguish between summations that criticize defense theories
or arguments versus attacks on defense counsel. See United States v. Ruiz, 710
F.3d 1077, 1086 (9th Cir. 2013). The government contends that the prosecutor did
not attack defense counsel “personally,” GAB 106, but he repeatedly mentioned
him by name and stated: “Mr. Hochman did for two-and-a-half hours what he did
for two-and-a-half weeks of this trial, tried to distort the facts, mislead you in the
evidence and just make up stuff that didn’t happen.” ER 35-36. The very
authority cited by the government demonstrates that such an attack on counsel is
not “well within normal bounds of advocacy.” GAB 105-06.
The government’s response to the vouching aspect of the prosecutor’s
argument is similarly weak. The government attempts to distinguish United States
v. Linn, 31 F.3d 987, 993 (10th Cir. 1994), by arguing that the prosecutor did not
state it was defense counsel’s “job” to mislead the jury. GAB 105-06. The
prosecutor stated that it was defense counsel’s “duty[,]” ER 49, and there is no
material difference between “duty” and “job” in this context. The government
certainly hasn’t explained a material distinction.
44
The government claims that Mr. Baca has misconceived the doctrine
of vouching, GAB 106, citing a case finding no vouching where a witness
attempted to shake a prosecutor’s hand. United States v. Rude, 88 F.3d 1538,
1549 (9th Cir. 1996). Vouching is not limited to witnesses, and the prosecutor’s
argument improperly implied that the prosecutors were more trustworthy than
defense counsel who would say anything because of a duty to Mr. Baca. See
United States v. Edwards, 154 F.3d 915, 922 (9th Cir. 1998). The government fails
to appreciate the confluence of the circumstances: (1) the district court erroneously
sustained objections asserting defense counsel was making improper arguments
unsupported by the evidence, undermining his credibility; (2) the prosecutor then
attacked defense counsel by name in rebuttal; (3) he simultaneously vouched for
his credibility in comparison; and (4) the district court’s belated remedy was to
overrule all objections, but not until the next day, that had previously been
sustained in both parties’ summations. The closing arguments were not a fair
playing field, the remedy employed was deficient, see United States v. Perlaza,
439 F.3d 1149, 1172 (9th Cir. 2006); Weatherspoon, 410 F.3d at 1151, and it
actually exacerbated the error discussed below.18
18
The government complains that Mr. Baca has failed to offer record
citations supporting his contention that the false-argument objections were
incorrect, GAB 114, but defense counsel specifically highlighted the portions of
45
With respect to arguing the other defendants’ convictions as evidence
of guilt, the government retreats to the blame-defense-counsel justification. GAB
109-10. The government never explains how permissible arguments by the
defense justified the prosecutor’s improper use of the other defendants’
convictions. A defense argument that reasonable doubt sets apart the American
justice system from Russia and China does not justify the prosecutor’s argument
that juries convicted the codefendants under that standard. Defense counsel’s
discussion of the cooperators’ convictions, GAB 110, for the permissible purpose
of attacking their credibility, does not mean the prosecutor could argue them for an
improper purpose. Even if the defense arguments were somehow improper, that
does not justify the misconduct. Weatherspoon, 410 F.3d at 1150. The
government asserts that the remarks were ambiguous and this Court should not
infer a damaging interpretation, GAB 110-11, but they were quite clear and the
government does not offer any other interpretation.
The government claims a lack of prejudice because the district court
sustained the objection to the third time the prosecutor made the improper
argument. GAB 113. The government ignores the district court’s subsequent
the testimony supporting his arguments, and the district court indicated its
agreement by subsequently “overruling” the objections. ER 4-34.
46
instruction that the previously sustained objections were overruled, ER 30-31, and
therefore the jury could have believed the prosecutor’s arguments were
permissible. In any event, sustained objections are considered in the cumulative
misconduct analysis. Weatherspoon, 410 F.3d at 1151; United States v. Sanchez,
176 F.3d 1214, 1223 (9th Cir. 1999). The government points out that defense
counsel did not object the first two times the prosecutor impermissibly argued the
other defendants’ convictions, GAB 109, but the objection to the final comment
was sufficient to preserve the issue; nevertheless, the prosecutor’s arguments were
plainly erroneous and the prejudice of all of the misconduct is considered
cumulatively. United States v. Preston, 873 F.3d 829, 842-46 (9th Cir. 2017).
The government contends that the improper arguments occupied just
a few pages of transcript in a lengthy case. GAB 106-07. There were multiple
errors throughout the rebuttal, however, and prejudice “cannot be measured simply
by how much air time [an error] received at trial or how many pages it occupies in
the record.” Buck v. Davis, 137 S. Ct. 759, 777 (2017). “Some toxins can be
deadly in small doses.” Id. Finally, the misconduct occurred during rebuttal and
would have had a significant prejudicial effect given it was one of the last things
the jurors heard. Zapata v. Vasquez, 788 F.3d 1106, 1122-23 (9th Cir. 2015);
United States v. Sanchez, 659 F.3d 1252, 1261 (9th Cir. 2011).
47
VIII. The government presented insufficient evidence.
As to the obstruction charges in Counts 1 and 2, the recent decision in
Marinello supports Judge Fletcher’s conclusion that the use of “corruptly” to
modify the “omnibus” clause in 18 U.S.C. § 1503 means the obstruction must be
by bribery. United States v. Bonds, 784 F.3d 582, 594-601 (9th Cir. 2015) (en
banc) (Fletcher, J., concurring). In interpreting “corruptly” in a similar statute, the
Supreme Court stated that the defendant must act “with ‘the specific intent to
obtain an unlawful advantage’ for [himself] or another.” Marinello, 138 S. Ct. at
1108. This language is consistent with bribery, which also uses “corruptly”
language and requires the giving or receipt of an unlawful benefit. 18 U.S.C. §
201. In other words, the obstruction must involve the bribery of a witness or other
participant in the proceeding.19 The government concedes that no such conduct
was proven or even alleged in this case, requiring judgments of acquittal.
On the false statement charge in Count 3, the government erroneously
asserts plain error review, contending that the specific sufficiency argument on
19
The government states that Bonds “holds” otherwise, GAB 120, but
cites other concurring opinions that declined to address the issue. See, e.g., Bonds,
784 F.3d at 587 n.2 (N.R. Smith, J., concurring). The government also cites
United States v. Rasheed, 663 F.2d 843, 852 (9th Cir. 1981), but that case is
certainly subject to re-examination in light of Marinello and decades of other
precedent explaining the corruptly element. See, e.g., Arthur Andersen, 544 U.S.
at 705; United States v. Massey, 419 F.3d 1008, 1010 (9th Cir. 2005).
48
appeal was not raised below. GAB 117. The government does not cite any
authority to support its position, and it is clearly wrong. The defense made a
general Fed. R. Crim. P. 29 motion as to all elements of all counts, ER 509-10,
which is sufficient to trigger de novo review. United States v. Cruz, 554 F.3d 840,
844 n.4 (9th Cir. 2009); United States v. Viayra, 365 F.3d 790, 793 (9th Cir. 2004).
On the merits, the government contends that Mr. Baca has
“conflate[d]” the counts and that the grand jury investigation was the “matter” for
Counts 1 and 2, while an executive-branch investigation was the “matter” for
Count 3. GAB 117-18. The government, however, cites no evidence introduced
at trial to support this distinction. While there may have been “parallel” areas of
investigation, GAB 118, the only evidence was that the entire matter at issue was a
continuing grand jury investigation and the authorities were acting as an arm of
the grand jury when interviewing witnesses. GER 178. The government points to
evidence that the FBI and the United States Attorney’s Office are part of the
Department of Justice, GAB 118, but that does not mean the “matter” was within
the executive branch. The only evidence introduced at trial was that the “matter”
was a grand jury matter, which is within the judicial branch. See Levine v. United
49
States, 362 U.S. 610, 617 (1960).20
The government contends that, even if Mr. Baca’s position is correct,
there would only be a non-prejudicial “variance.” GAB 119 n.22. The question is
not “variance” because the government failed to prove the specific charge alleged
in the indictment, and the jury was not instructed on a judicial-branch theory;
accordingly, this Court must reverse for insufficient evidence. See United States
v. Tarallo, 380 F.3d 1174, 1184-85 (9th Cir. 2004). Even if the proper analytical
framework were “variance,” what is at issue is a constructive amendment, which
requires automatic reversal, because the government would be relying on a theory
of liability that was not alleged in the indictment. See, e.g., United States v. Davis,
854 F.3d 601, 604-06 (9th Cir. 2017). Thus, while the proper course is to reverse
Count 3 for insufficient evidence, reversal is also required under the government’s
framework due to a constructive amendment.
IX. The convictions should be reversed under the cumulative error doctrine,
and the case should be reassigned to a different district judge.
Using an ellipses to butcher a quotation from United States v.
Fernandez, 388 F.3d 1199, 1256-57 (9th Cir. 2004), the government suggests that
20
The government cites United States v. Navarro-Vargas, 408 F.3d
1184, 1200 (9th Cir. 2005) (en banc), GAB 119 n.22, but it states that the grand
jury is not within the executive branch.
50
if any error is harmless on its own then it cannot establish cumulative error. GAB
120. The government’s suggestion essentially eliminates the cumulative error
doctrine and most certainly is not the law. Preston, 873 F.3d at 844-46. Indeed,
Fernandez even recognized that forfeited errors can be considered in the
cumulative error analysis, Fernandez, 388 F.3d at 1256-57, and therefore to the
extent this Court finds that any error was not preserved, it must also consider it
when evaluating cumulative prejudice. Ignoring the near acquittal and the lengthy
deliberations at the retrial, the government contends that it presented “ample”
evidence of guilt, GAB 121, but this Court has reversed for cumulative error when
the prosecution evidence was much stronger, even under AEDPA review. Parle v.
Runnels, 505 F.3d 922 (9th Cir. 2007).
Finally, on reassignment, the government does not address several of
the “unusual circumstances,” In re Ellis, 356 F.3d 1198, 1211 (9th Cir. 2004) (en
banc), such as the district court’s comment during the bail pending appeal
proceedings, see United States v. Gardenhire, 784 F.3d 1277, 1284 (9th Cir. 2015),
and a juror’s assessment that the judge was biased against Mr. Baca. CR 481; RT
2031. The government’s response to reassignment is ultimately tainted by its
erroneous view that there were no errors in the case. GAB 121-22. To the
contrary, there were many, and they were crucial and prejudicial.
51
CONCLUSION
This Court should reverse.
Respectfully submitted,
s/Benjamin L. Coleman
Dated: May 7, 2018 BENJAMIN L. COLEMAN

COLEMAN & BALOGH LLP
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 794-0420
Attorneys for Appellant Leroy Baca
52
CERTIFICATE OF COMPLIANCE
I have submitted a motion to file an oversized brief. Pursuant to Fed.
R. App. P. 32(a)(7) and Ninth Circuit Rule 32-1, the attached Appellant’s Reply
Brief is:
Proportionately spaced, has a typeface of 14 points or

more, and contains 12,420 words.
Date: May 7, 2018 s/Benjamin L. Coleman

BENJAMIN L. COLEMAN
53
CERTIFICATE OF SERVICE
I, hereby certify that on May 7, 2018, I electronically filed the
foregoing Appellant’s Reply Brief with the Clerk of the Court for the United
States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF
system.
I certify that all participants in the case are registered CM/ECF users
and that service will be accomplished by the appellate CM/ECF system.
Dated: May 7, 2018 s/Benjamin L. Coleman

BENJAMIN L. COLEMAN
54

Former LA County Sheriff Lee Baca Trial Brief For Appeal With 9th Circuit

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Case: 17-50192, 05/07/2018, ID: 10864621, DktEntry: 64, Page 1 of 69

IN THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Appeal from the United States District Court

APPELLANT’S REPLY BRIEF

Attorneys for Appellant Leroy Baca

Table of authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

I. The district court erred by excluding evidence of Mr. Baca’s Alzheimer’s

III. The district court erroneously empaneled an anonymous jury

V. The district court gave a non-pattern instruction on the “cooperating”

VI. The district court gave erroneous non-pattern instructions on the

VII. The prosecutor committed misconduct during closing arguments,

VIII. The government presented insufficient evidence... . . . . . . . . . . . . . . . . . . . 48

IX. The convictions should be reversed under the cumulative error

Arthur Andersen LLP v. United States,

Brasfield v. United States,

Garcia-Aguilar v. United States District Court,

Green v. United States,

Johnson v. United States,

LeGras v. AETNA Life Ins. Co.,

Levine v. United States,

Marinello v. United States,

McDonnell v. United States,

Quercia v. United States,

Rogers v. United States,

United States v. Ajiboye,

United States v. Alferahin,

United States v. Arambula-Ruiz,

United States v. Arlt,

United States v. Barbioni,

United States v. Barragan,

United States v. Bear,

United States v. Bernard,

United States v. Bonas,

United States v. Bonds,

United States v. Brown,

United States v. Burt,

United States v. Christian,

United States v. Christophe,

United States v. Chung,

United States v. Cohen,

United States v. Cortes,

United States v. Cruz,

United States v. Davis,

United States v. de la Jara,

United States v. Della Porta,

United States v. Del Toro-Barboza,

United States v. Dunnigan,

United States v. Edwards,

United States v. Emmert,

United States v. Espinoza-Baza,

United States v. Fernandez,

United States v. Flores-Montano,

United States v. Fontenot,

United States v. Gardenhire,

United States v. Gergen,

United States v. Gonzalez-Flores,

United States v. Guzman-Padilla,

United States v. Hernandez-Guardado,

United States v. Hinkson,

United States v. Hozian,

United States v. Jefferson,