NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

LEROY BACA, 

Defendant-Appellant.

No. 17-50192 

D.C. No. 2:16-cr-00066-PA

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted November 6, 2018

Pasadena, California

Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH,** District 

Judge.

Leroy Baca appeals from the district court’s judgment and challenges his 

jury-trial convictions for conspiracy, in violation of 18 U.S.C. § 371; obstruction of 

justice, in violation of 18 U.S.C. § 1503(a); and making a false statement, in 

 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The Honorable Stephen R. Bough, United States District Judge for the 

Western District of Missouri, sitting by designation.

FILED

FEB 11 2019

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS
2 17-50192 

violation of 18 U.S.C. § 1001(a)(2). We have jurisdiction under 28 U.S.C. § 1291, 

and we affirm.

1. In his case in chief, Baca sought to introduce expert testimony by Dr. 

James Spar, M.D., regarding Baca’s Alzheimer’s diagnosis. We review a district 

court’s decision to exclude expert testimony under Federal Rules of Evidence 403 

and 702 for abuse of discretion. See United States v. Spangler, 810 F.3d 702, 706 

(9th Cir. 2016); United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000). 

The district court did not abuse its discretion in rejecting Dr. Spar’s testimony as 

unreliable given his speculation about whether Baca suffered from cognitive 

impairments when making his false statements, and, if so, how those impairments 

affected his answers. The district court also did not abuse its discretion in 

excluding this testimony under Rule 403 given its probative value in relation to the 

risk of jury confusion. Nor did exclusion of this evidence deny Baca his 

constitutional right to present a defense. See United States v. Waters, 627 F.3d 

345, 354-55 (9th Cir. 2010).

2. At trial, Baca sought to elicit testimony that after Assistant Sheriff 

Rhambo warned Baca not to interfere with the federal investigation, Baca 

responded by stating that federal authorities had broken the law. The district court 

excluded this testimony as hearsay. On appeal, Baca argues this statement was 

either not hearsay or subject to the state-of-mind exception to the hearsay rule. 
3 17-50192 

Because Baca failed to raise either argument before the district court, we review 

for plain error. See United States v. Chang, 207 F.3d 1169, 1176 (9th Cir. 2000). 

Even assuming arguendo that the district court erred in excluding this testimony, 

Baca has failed to demonstrate that any error affected his substantial rights. See, 

e.g., United States v. Alghazouli, 517 F.3d 1179, 1190 (9th Cir. 2008). Baca 

introduced evidence of similar instances where he told others that he believed 

federal authorities had broken the law during their investigation. He was therefore 

able to argue to the jury in closing that it was this belief, and not an intent to 

obstruct justice, which motivated his actions. Accordingly, we find no plain error. 

3. Baca also argues that the district court erred in empaneling an 

anonymous jury. We review for abuse of discretion, see United States v. Shryock, 

342 F.3d 948, 970-71 (9th Cir. 2003), and find none. The district court’s decision 

to empanel an anonymous jury was reasonable in light of the highly publicized 

nature of this case, Baca’s and his co-conspirator’s positions as former highranking law enforcement officers, and the nature of the charges at issue. See id. at 

971 (setting forth factors considered in deciding whether to empanel an anonymous 

jury). Additionally, the district court minimized any risk of prejudice to Baca by 

instructing the jury that an anonymous jury was utilized to protect the jurors’

privacy and was unrelated to Baca’s guilt or innocence. See id. (requiring the 

district court to adopt “reasonable safeguards” to minimize the risk that the 
4 17-50192 

defendant’s rights are infringed).

4. Baca next contends that the district court erred in denying his motion 

to dismiss the indictment on double jeopardy grounds after the mistrial in Baca’s 

first trial. The district court declared a mistrial after the jury reported (and 

reaffirmed in open court) that it was unable to reach a verdict and there was not a 

reasonable probability that further deliberations would be productive. We review a 

district court’s determination that there was manifest necessity to declare a mistrial 

for abuse of discretion. United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir. 

2008). Given the jury’s assessment and the length of the deliberations, the district 

court did not abuse its discretion in declaring the mistrial. See United States v. 

Hernandez-Guardado, 228 F.3d 1017, 1028 (9th Cir. 2000) (setting forth factors a 

district court should consider in determining whether to declare a mistrial because 

of jury deadlock, and noting the “most critical factor” is the “jury’s own statement 

that it is unable to reach a verdict”).1 Because the district court did not abuse its 

discretion in finding manifest necessity for a mistrial in Baca’s first trial, the 

 

11 Baca requests that we adopt a rule requiring a district court to give a potentially 

deadlocked jury an Allen charge when the defendant requests it and the charge 

would not be per se coercive under this Court’s precedent. See Allen v. United 

States, 164 U.S. 492 (18960. We decline to do so. As we have recognized, 

“[e]xtraordinary caution must be exercised when acting to break jury deadlock,” 

and this is particularly the case with Allen charges. United States v. Evanston, 651 

F.3d 1080, 1085 (9th Cir. 2011). The decision on whether to give an Allen charge 

is left properly to the discretion of the district court. See, e.g., United States v. See, 

505 F.2d 845, 854 (9th Cir. 1974).
5 17-50192 

Double Jeopardy Clause did not bar his retrial. See, e.g., United States v. AlvarezMoreno, 657 F.3d 896, 900 (9th Cir. 2011).

5. Baca also challenges the district court’s jury instructions regarding the 

government’s cooperating witnesses. We find no error. See United States v. 

Ubaldo, 859 F.3d 690, 700 (9th Cir. 2017) (a district court’s formulation of jury 

instructions are reviewed for abuse of discretion). The district court properly 

instructed the jury that the cooperating witnesses were seeking leniency at 

sentencing and that the testimony of these witnesses’ should be evaluated with 

greater caution than that of others. The district court’s further instruction regarding 

the district court’s exclusive authority to determine the cooperating witnesses’ 

sentences independent of the government’s recommendation was not misleading.

6. Baca next argues that the district court improperly instructed the jury 

regarding the obstruction of justice count’s mens rea requirement. We disagree. 

The district court properly instructed the jury that in order to convict Baca for 

obstruction of justice, the government had to prove beyond a reasonable doubt that 

Baca acted “corruptly,” meaning that he knew of the federal grand jury 

investigation and acted with an intent to obstruct it. See United States v. Rasheed, 

663 F.2d 843, 852 (9th Cir. 1981) (“We hold that the word ‘corruptly’ as used in 

the statute means that the act must be done with the purpose of obstructing 

justice.”). The Supreme Court’s decision in Arthur Andersen LLP v. United States, 
6 17-50192 

544 U.S. 696 (2005), did not require the government to prove that Baca acted with 

a consciousness of wrongdoing or that his conduct was wrongful, immoral, 

depraved, or evil. See United States v. Watters, 717 F.3d 733, 735-36 (9th Cir. 

2013).

7. Baca argues that the prosecutor engaged in misconduct during his

rebuttal argument. We find no basis for reversing. Contrary to Baca’s contention, 

the government did not argue that the cooperating witnesses’ guilty verdicts could 

be used as evidence of Baca’s guilt. Further, the district court negated any unfair 

inference created by the government’s references to the guilty verdicts in the jury 

instructions. See, e.g., Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir. 2014) (“[A] 

jury is presumed to follow the trial court’s instructions.”). Finally, although we do 

not condone the government’s decision to reference Baca’s counsel by name and 

accuse him personally of distorting the evidence or attempting to mislead the jury, 

we conclude that this line of argument did not materially affect the verdict. See, 

e.g., United States v. Taylor, 641 F.3d 1110, 1120 (9th Cir. 2011).

2

8. Finally, sufficient evidence supported Baca’s convictions. First, the 

government was not required to introduce evidence that Baca engaged in bribery to 

satisfy the “corruptly” element of 18 U.S.C. § 1503(a). Rather, “the word 

 

2 To the extent the Defendant argues the district court erred in how it handled the 

parties’ objections during closing argument, we find no abuse of discretion. See 

United States v. Etsitty, 130 F.3d 420, 424 (9th Cir. 1997) (per curiam).
7 17-50192 

‘corruptly’ as used in the statute means the act must be done with the purpose of 

obstructing justice.” Rasheed, 663 F.2d at 852. The government introduced 

sufficient evidence from which a jury could conclude that Baca acted with this 

requisite intent. Second, as to the false statement count, the government 

introduced sufficient evidence from which the jury could conclude that Baca made 

his false statements in a “matter within the jurisdiction” of the executive branch. 

18 U.S.C. § 1001(a); see also United States v. Rodgers, 466 U.S. 475, 479-83 

(1984).

AFFIRMED.
U.S.A. v. Bac

a, Case No. 17-50192

Rawlinson, Circuit Judge, concurring in theresult:

I concur in the result. 

FILED

FEB 11 2019

MOLLY C. DWYER, CLERK

U.S. COURTOF APPEALS