half a dozen or so defendants that there was no evidence in that trial involving those multiple defendants that they received orders to obstruct justice move the inmate and drew mr brown around to avoid f b i contact or otherwise so that was the state of the evidence where those defendants had every incentive to show orders from on high directing them to do things that were of structure the judge found there was no such evidence in sentencing them so now we go to under case and in order to prove establish content to the allegations of obstruction of justice the government went to extraordinary lengths in cross examining m while he was on the stand by alleging multiple times that he was a member associate of a gang of lawless deputies that operated out of the lynwood substation in los angeles now that the intent of the government in proving that was trying to prove it was to show that if mr tonight there was a member of a l less gang engaging in civil liberties violations and other lawless conduct as they stated that would show persevere the conduct of protecting other officers who engage in misconduct that's part of what they were doing right well well what they said they were doing is by showing membership we will impeach that they did is to try to protect other officers who commit misconduct which is directly contrary to what mr market testified he was this organization for which there was no proof was deemed in one thousand nine hundred one in a reversed district court finding that it was a white races sub category of deputies  the in which station this court reversed that finding because the sheriff's department in l a county produced twelve hundred pages of conflicting declarations and other documents at the time and this court in the thomas case said half a dozen times there were no findings supported by evidence or hearing they reverse that yet that is what the prosecution in this case used to try to establish a gang of deputies operating out that he's going to be the long belong to a gang of white racists in the lynwood station is on its face absurd but there was no more importantly there was no proof of this this was strictly through cross examination and in perhaps in a don't know of any such thing i was not a member of the lawsuit number one i was not name didn't i was not a party to it i didn't read it so i don't know what you're talking about and then the prosecution kept kept at it for ten pages saying well you have a tattoo of the lynwood station viking correct him and mr thing that i said without contradiction yes that was the substations mascot just as norwood had a mascot and other substations had mascots and we use them when we had intermural sports competitions of which he participated we were the lynwood mass vikings they were the norwood panthers or whatever so again no contradiction to that but the jury is given this delusion of district court findings that there was a occurred this jury never heard that these findings were reversed for lack of an evidentiary hearing and because all of the findings were contested by the defendants in that case so what presidential value is there what basis is there for a period of time it didn't and then it did again according to this report is that does that i'm wrong it sounds wrong i know mr to natca testified that his in his career he was promoted to chief two thousand and two to two thousand and seven his primary responsibility was the budget and then at one twenty three he was assistant and assistant sheriff for six and a half years  from seven to two thousand and eleven to oversee twenty three patrol stations right but he was asked specifically did not overseeing the men's central jail he said that's correct that was my question counsel went to the period between two thousand and five and two thousand and seven and he was overseeing the jail at that time was he not i don't believe he had command responsibility of the mc j the men's central jail i think there's an assistant sheriff dedicated to that responsibility and that was not mr sinatra's in any event the euro your honor alluded to the quote historical information that came in of these reports and unprecedented avalanche of dozens of scores of in made declarations about misconduct well he wasn't in charge of the central jail and i'm not sure how that leads one to believe that he is caught the committing an obstruction of justice and following orders of his of his boss the sheriff to get to the bottom of the smuggling of the cell phone and then with this this conspiracy allegedly went from august eighteenth or nineteenth until september twenty fifth and during that period of time the allegations of obstruction were moving in made brown around and changing his name changing his name correct so this your first argument the i think it's sort of jump lump together evidence of the viking talked to him that it wasn't removed membership or not in the deputy gang and what you're calling us at this avalanche of evidence essentially i think your argument is a four three argument that there was a due process violation because right and because on cross examination he was confronted with questions about findings that were later vacated is there anything else i should be lumping in that first basket well we're talking about membership lawless gang of deputies you've got gang evidence but it could nothing could be more pernicious to somebody on trial for obstruction of justice then being a member of a lawless gang of deputies which he was not in as he said he was not and there was no proof that he the vikings not that he agreed that what he said was the vikings were simply the mascot of the of the substation what what took on a sinister what he said was took on the sinister  of the vikings was the prosecution arguments in other arguments made against them and there may well have been a limited number of deputies there who committed misconduct the council you're really not going to the question the question is at the citizens commission test at that time when he testified in two thousand and twelve did he not testify that as of the time that that that the vikings had taken on that connotation not not with us right or not but that it had that public perception well he would have disagreed with that if he said it i'm sure it did take on a sinister kind of attention because of a blue city about it that we're asking yes but that doesn't mean it was true and it doesn't mean it was evidence supportive of these questions of him that he belonged to a gang a lawless deputies so with respect to the prejudice from that which i i would think is inherently prejudicial to say somebody belongs to there's a difference between the kind of gang that people are used to of the kind of gang they're afraid of the salvatore whatever they have thirteen and a group of sheriffs you  encourage the police to violate the rights of defendants well no i think not the average tour would feel calling a group of sheriffs who don't obey civil rights members of a gang i don't think they'd equate that in any way with the ordinary prejudice of gangs now that's not disagreeing with your own i'm an argument but i would not  well all i can respond by by saying is that the repetition that the prosecution made this finding of a gang member was used for it's toxic city because your client put his character in issue usually these cases come up where the defendant is just sitting there and the prosecutor soutane him by saying we should gang member but this isn't what happened here your client testified and he basically said he's a boy scout you of the station so he had the tattoo like a tattoo yes as did another witness who testified for the sheriff's department had a tattoo as well they put tattoos of the mascot of the station and that's what appellate testified to and there was wasn't the argument for the good faith basis it was the judge's findings which were hammered into this jury that a judge found this to be a lawless king and what could be more detrimental than a jury hearing that a judge has found this lawless was the defense not allowed to tell the jury that the findings were reversed no there was no there was no preclusion of that but the counsel for zero three the question is what's unfairly prejudicial and what and as the evidence this is just a court judge ruled he said the problem is you put him on the stand and so your client took the stand and he read the court he read the core value statement to the jury he testified to his personal philosophy he said you have to have an unwavering sense of right and wrong i had no tolerance he said for  and violated the law and on and on he went so what's unfair about the prosecutor getting up and going through these reports they have the a c l u report from this period of time there's the tattoo you say there's no evidence on the other side of the scale but for cross examination there's a very fertile ground well that what i'm arguing is that the repeated pounding in on cross examination about him being a member of a lawless gang was not proven and it was not only not proven it was based on findings of a court which the jury never heard about because the prosecution never never should be allowed to bring this up about court findings but they did lesson on what it means for an appellate court to reverse findings in the jury to understand that the that the findings that the court made were all contested and that this court reversed those findings because of the lack of an  evidentiary hearing to air out what was true and what was false and your position essentially is you think a jury wouldn't have understood that i think it should it should never have been required to have happened because they should never have been hearing about a judge's findings  and i might add that in addition to this this this evidence was used to show intent to commit the obstruction it was not just character events it was used as intense of gang evidence used despite the fact that their sentence said i've not been a member of any such gang the prosecution got an instruction and they defended in their respondents brief that this was acts and that was not shown as well so those instructions compounded the error of bringing this entire subject that is it was used for intent and it was used for a for be evidence to say that his other bad acts he show intent and last of course the prosecution argued in its first statement to the jury that the defendant would who would undermine the reforms of the sheriff's department state to stand for the core values all the while brandishing at two tattoo of a deputy gang there was no evidence that that was a tattoo of a deputy gang where's the evidence yet that's what was argued that this to make it clear that the was saying there's evidence that he belonged to a deputy gang and was wearing that tattoo but the prosecution argued it as evidence and there were and it was an objection there was no objection but it is evidence of the prejudice of bringing allowing this whole whole area to come into evidence to confirm and i know it was argued in the first paragraph of the prosecutor's statement was it argued at any other port of the undermined helped undermine in this case  was otherwise your objection was that there was no evidence that he belonged to a gang and yet it was raised in the summary even though there was no evidence it's one thing to say that he was asked about the cross examination tagged with being a member of a gang when there was no proof that that could have been dropped what is the nature of the written and oral objections that the appellant made and argued to the court the court said his membership in the gang is relevant so they have no basis when the few minutes here thinking in court graeme alden for the united states defendant was convicted of obstructing justice by interfering with a federal investigation into civil rights violations by other law enforcement officers was fairly debatable for purposes of appeal the principal issue on appeal the question of whether the government was intitled to ask questions of the defendant regarding his affiliation with the vikings the defense arguments are incorrect on both the score of relevance and good faith basis as to the good faith basis as the court has already pointed out the government the standard is quite lovely and there's a reason for that this is cross examination and the government is not entitled under rule six zero eight be for our impeachment purposes to bring in the evidence that would support or extrinsic evidence that would prove the questions that are asked and the answer that the defendant gi that was established at this trial before the questions were even asked that the government would not and could not bring in extra sick evidence so when defense counsel points out that there was no evidence brought in a trial of these allegations that is because that is what the rules require and that actually minimizes any prejudice the defense there was no judicial finding put before the jury the fourth or b ruling was that it was also admissible for purposes of proving motive intent and i do believe the district court used the word intent the district court ruled that it was admissible for both the purposes of proving intent and for preventing or for purposes of impeachment improving bad character after that if one so the intent theory was that the defendant would have obstructed a federal investigation into civil rights violations because he was affiliated with a group that had committed civil rights violations and therefore would have an incentive or a motive to protect other officers to protect himself to protect the sheriff's department from being discovered and proving and i think i think that that actually goes to show your honor that if the government had sought to under rule four zero four b maybe i could have introduced this evidence but that would have exacerbated implication of the question i certainly don't think that the defense wanted or would have appreciated had the government brought in the evidence here i think that as the court has pointed out as your honor veterans he has pointed out the defense had and as stretch chris and pointed out to an opportunity on redirect to ask well where are these findings that the government is referring to reversed and i would say though i said that point the findings themselves were not reversed injunction that was entered in a civil suit and those findings that the district court made in the thomas case were based on nearly one hundred declarations from individuals in the community who had been subject to abuse at the hands of the sheriff's department and addition that the plaintiffs in that case brought forth thirty three photographic images to show that they had been abused and there were actually a lot of underlying declarations and fact before the government asked any of those questions and that the district court side had to be a stoppage and that the defense of course did not object to on good faith basis grounds the defense only objected on relevance grounds how much of this is included in the a c l u report admitted i don't know the extent to which this is discussed in the a c l u report i do know that indeed it does point out that the defendant was in charge of sales during a two year period from two thousand and five to two thousand and seven and that of course he then became the undersheriff in june of two thousand and eleven but that there was a window of time during which he would have been and how oversight over that central jail and and a window of time when he did not yes that is correct so as to the prejudice here the defense argues that it was hammered and hammered but really all that was  that the government wanted to establish here was did the defendant belong to the vikings did he have a vikings tattoo was he aware that there were findings made in one thousand nine hundred one that the vikings were a deputy gang involved in civil rights abuses and did the defendant then remove his tattoo or not the answers to those questions were yes i have the touch to yes i became aware of those findings no i did not remove the touchett so to the extent there was any question as to the factual basis of the defense defendant's own answers a stab wish that those facts were indeed all true or the defendant denied of course that the vikings were a lawless gang but he admitted what was relevant here was that a court found not to be and that his reaction was to keep the top two from not day in addition the government did not try to taint defendant with the most toxic of the district findings in the thomas case the government did not refer to the white neo nazi white supremacist gang finding the government did not respond refer to the finding about  i believe it was violated again like sorry terrorist type tactics and those findings would have been probably a lot more prejudicial than what was actually brought forth the other thing i would point out is that the record indicates that the government initially asked about were their findings in one thousand nine hundred one and did not even say judicial findings did not say court's findings and the defendant's response and this is that g r g e r three twenty eight was i believe that was in a civil lawsuit that i was not a party to serve so the first time there's even a mention of the fact that these findings come from a suit is from defendant's own mouth under those circumstances the asking of the question which as judge kozinski points out is not itself evidence was certainly permissible the evidence that came in was only the defendant's answers and under any rule or any analysis of any prejudice here it's what the defendant said it's not what the government asked that's an issue finally i would say for purposes of harmlessness and the plain there are standard or abuse of discretion standard the evidence in this case that the defendant committed this crime was indeed overwhelming there were twenty five government witnesses they testified about the whole course of events between june july august mostly august of two thousand and eleven in september of two thousand and eleven and they established that the defendant was in charge of an operation to both hide an inmate informant from the government and to threaten and have b i e j with or grass to try to stop her from pursuing her investigation so unless the court has further questions about not even a group that anyone needed to be admitted to and that it was in fact just a mascot of the lynwood station where he was working in the early one nine hundred ninety s but he acknowledged that he in fact had the top two and would that was a wise or joined in the judgment of the prosecutor who was at trial i think that he was pointing out that he was indeed a member of the deputy group is important here is that this is not the same as a criminal street and the word gang may have been inappropriate inconvenient but i'm fortunate there's not really many words to describe a group of that nature well but counsel to be fair i'm i'm i'm not sure you remember in the testimony correctly there's a question mr it's not that when you were a sergeant at the lynwood station you were invited into this group correct answer i wouldn't qualify that as any invitation into any group question you were asked to be a member of the vikings correct answer i was not asked to be there was no membership into the vikings the vikings were a mascot some group of linwood station and then he goes on to talk about the softball team is there no other place in the record other evidence that i should be considering if you just give me one moment i'm going to get the portion of the transcript that you read from your honor eighty six right and he used to or was i may have been aware of it at that time i don't i don't have a specific recollection that that was the finding so i think it's true that the defendant tried to characterize the vikings as something other than a group or a gang or a click but he did acknowledge later in that not questioning and i'm i apologize but i'm looking at the government's excerpts of record on page three hundred thirty where he acknowledges that he has a tattoo of the vikings and that it's the only time to he has and that he never had it removed correct and you obtained a viking tattoo at the time that you were a sergeant at lynnwood is that correct yes you remain well saying this is a really bad guy he's a member of a gang you know i'm really kind of offensive if nothing else here and i think we all in my office hold ourselves to a high standard and would always love to achieve that standard and really strive towards not i think this is a case in which the defendant opted to take the stand and put his character at issue his doesn't mean that you prove that he was a member of a gang what  worked whether or not he wanted to characterize it as a gang was an acknowledgment of the fact that he was a it's discouraging to see the prosecution engage in that kind of tactic whether it's brady violations whether it's an attempt to prejudice the jury  understand your concerns i would only say that this was a case in which the defendant was alleged to have conspired with others tried struct an investigation into civil rights and that when he made his defense about his good character and the fact that he would never stand for deputy misconduct he opened the door to that issue and i do understand the court's concern thank you thank you understand it's been a long morning for the court sort of participate in stating the cliche i'm going to be brief but i have that answer the allegation that the cour bill motion ruling is somehow authoritative to this court a bill motion means nothing more than bail has been denied there was no full briefing there was no oral argument and i'm not here arguing the validity of the motion panel's decision on bill i'm here arguing that my client did get a fair trial down below and that's what's before the court the i believe i heard counsel stated for under mendez prado the it's strong enough there was a supported by any actual evidence but membership membership was not and support whatever the thing is organization of you call it boys club whether we want to call it mascot doesn't have to believe in the government doesn't have to accept that he was the people people you know i mean it's entirely plausible believe that you don't put a tattoo on yourself unless it's a sign of membership he said he was a member of the lynwood station the membership of the lynwood station included the mascot of the station which was a viking that's as far as he went he didn't say i was a member of any lawless gang that operate understand don't think we've beat the issue sufficiently i will retire from the field thank you very much for your thank you thank you both very much the case will be submitted