UNITED STATES of America, Plaintiff-Appellee, v. Gary L. ERMOIAN, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Stephen John Johnson, Defendant-Appellant.
Nos. 11-10124, 11-10388
United States Court of Appeals, Ninth Circuit
Argued and Submitted April 18, 2013. Filed Aug. 14, 2013. As Amended Aug. 28, 2013.
727 F.3d 1165
ALFRED T. GOODWIN, DIARMUID F. O‘SCANNLAIN, and N. RANDY SMITH, Circuit Judges.
III
For the foregoing reasons, we affirm the district court‘s denial of Ovando-Garzo‘s motion to suppress.
Jerald Brainin, Los Angeles, CA, argued the cause and filed a brief for defendant-appellant Stephen J. Johnson.
Mark E. Cullers and Laurel J. Montoya, Assistant United States Attorneys, Fresno, CA, argued the cause and filed a brief for plaintiff-appellee United States of America. With them on the brief were Benjamin J. Wagner, United States Attorney, Fresno, CA, and Camil A. Skipper, Appellate Chief, Fresno, CA.
Before: ALFRED T. GOODWIN, DIARMUID F. O‘SCANNLAIN, and N. RANDY SMITH, Circuit Judges.
OPINION
O‘SCANNLAIN, Circuit Judge:
We must decide whether an FBI investigation qualifies as an “official proceeding” under a federal statute criminalizing obstruction of justice.
I
A
The facts of this case read like an episode of the fictional television drama Sons of Anarchy.1 Sometime in 2006, the Central Valley Gang Impact Task Force (“CVGIT“)—a United States Department of Justice (“DOJ“)-funded group tasked with coordinating local law enforcement efforts to eliminate gang-related crimes in California‘s Central Valley—learned that the Hells Angels motorcycle gang was attempting to establish a chapter in Modesto, California.2 Hoping to disrupt the formation of this gang chapter, the CVGIT opened an investigation into several known associates of the Hells Angels gang in the Modesto area, including Robert Holloway and his son Brent Holloway,3 the Road Dog Cycle Shop (which they co-owned), and members of the Merced Chapter of the Hells Angels gang who were affiliated with Road Dog Cycle.
Through information gleaned from earlier investigations, the CVGIT was aware that Road Dog Cycle was dealing in stolen motorcycles and motorcycle parts. The task force also suspected that some individuals associated with law enforcement were leaking information to the Holloways and were thus facilitating their criminal enterprise.
To catch the Holloways engaging in illegal activity, the CVGIT first sought to prevent any further leaks of confidential law enforcement information. Thus, in an effort to ferret out some of Robert‘s law enforcement sources, the CVGIT created a “Gang Intelligence Bulletin,” which it distributed to local law enforcement in September 2007. The bulletin purported to contain “confidential information” that was “intended for law enforcement personnel
The defendants in this case, Gary L. Ermoian and Stephen J. Johnson, were charged with obstructing justice based upon their activities during a chain of events set into motion by the bulletin‘s distribution. The morning after the Gang Intelligence Bulletin was distributed to law enforcement personnel, David A. Swanson4—a Deputy Sheriff and bailiff in the county courthouse—placed a 40.8 second phone call from his work telephone to Ermoian. At the time, Ermoian—one of Robert‘s close personal friends—was employed as a part-time private investigator for Robert‘s attorney, Kirk McAllister. Swanson informed Ermoian that he “saw some photos” of the Burn-Out Party and that Ermoian should warn Robert to “watch his back.”
The wiretap on Robert‘s phone recorded a flurry of activity immediately after Swanson contacted Ermoian. Just minutes after receiving the call from Swanson, Ermoian called Robert to share Swanson‘s tip. Given Swanson‘s position in the courthouse and his access to information about pending warrant applications, Ermoian was concerned that Swanson‘s veiled warning that Robert should “watch his back” might indicate that police were coming with a search warrant. He thus advised Robert to “take a look around the shop [to] see if you see anything....” Heeding Ermoian‘s advice, Robert talked to Brent and other Road Dog Cycle employees, checked the store for “questionable” motorcycle parts, and put one questionable item “in the alley [behind the store] with a tag on it.”
Later that same day, Ermoian and Robert both received several additional phone calls warning about a pending investigation into Road Dog Cycle from defendant Johnson. Johnson was not a member or close affiliate of the Hells Angels motorcycle gang, but he had become acquainted with Robert, Ermoian, and McAllister through a business he owned and operated, which subcontracted with law enforcement to perform canine sniff searches. Starting sometime in 2006, Robert and his attorney McAllister had hired Johnson on a few occasions to perform preventative canine searches of Road Dog Cycle so that they could locate and dispose of any drugs or other contraband found on the premises. Shortly after Ermoian received Swanson‘s tip, McAllister requested that Johnson perform a preventative search of Road Dog Cycle in anticipation of the pending law enforcement raid. Upon learning that another source suspected a raid, Johnson informed both Ermoian and Robert that he had “overheard” a conversation at the DOJ facility where he was contracted to conduct periodic canine searches about an impending Bureau of Alcohol, Tobacco, and Firearms (“ATF“)-DOJ investigation into Road Dog Cycle.
With two sources suggesting that a police raid was imminent, Robert, Ermoian, Johnson, and other affiliates of Road Dog Cycle flew into action. Based on the wire-
Having discovered that Ermoian and Johnson were related to the law enforcement information leaks, the CVGIT did not move immediately to arrest them. Instead, to avoid tipping off the other suspects to the true scope of the investigation, it postponed action and continued to dig into the illegal activities of Robert and Road Dog Cycle, as they were the primary targets of the investigation. It wasn‘t until June 2008, when the CVGIT‘s investigation into the Holloways was coming to a close, that FBI Agent Nathan Elias—the lead member of the CVGIT for the Holloway case—first went to interview Ermoian about the Holloway investigation. Johnson was first interviewed about his involvement with Holloway a month later. Subsequently, both Ermoian and Johnson were arrested on charges of conspiracy to obstruct justice.
B
On May 28, 2009, a federal grand jury returned an indictment against twelve defendants associated with Road Dog Cycle, charging several violations of racketeering laws and various related offenses. In the indictment, defendants Ermoian and Johnson were charged with conspiracy to “corruptly obstruct, influence, and impede an official proceeding, to wit, a law enforcement investigation conducted by the Federal Bureau of Investigation” in violation of
Throughout the trial process, Ermoian and Johnson challenged the legal validity of the obstruction of justice charge. Specifically, and relevant to this appeal, the defendants filed a pre-trial motion to dismiss the indictment, an objection to the jury instructions and a motion for acquittal during trial, as well as a post-trial motion for acquittal, at all times asserting the same general argument: they could not be convicted under the obstruction of justice statute, § 1512, because their alleged obstruction of an FBI investigation did not qualify as obstruction of an “official proceeding” under the statute. The district court rejected this argument each time, concluding that the term “official proceeding” as used in the statute should be read broadly to include an “FBI investigation.”
The jury convicted Ermoian and Johnson of obstructing justice. They timely appealed.
II
Ermoian and Johnson raise various arguments challenging their conviction on appeal, but they focus primarily on one issue: Did the district court err when it determined that an FBI investigation qualifies as an “official proceeding” under the statute criminalizing obstruction of justice?
Our circuit has never before addressed the meaning of the term “official proceeding” as used in the obstruction of justice statute at
A
The statute under which the defendants were convicted,
(A) a proceeding before a judge or court of the United States, a United States magistrate judge, a bankruptcy judge, a judge of the United States Tax Court, a special trial judge of the Tax Court, a judge of the United States Court of Federal Claims, or a Federal grand jury;
(B) a proceeding before the Congress;
(C) a proceeding before a Federal Government agency which is authorized by law; or
(D) a proceeding involving the business of insurance whose activities affect interstate commerce before any insurance regulatory official or agency or any agent or examiner appointed by such official or agency to examine the affairs of any person engaged in the business of insurance whose activities affect interstate commerce[.]
1
As used in the statute, the definition of the phrase “official proceeding” depends heavily on the meaning of the word “proceeding.” That word is used—somewhat circularly—in each of the definitions for an “official proceeding” and is key to the phrase‘s meaning. See id.
“Proceeding” has been defined in various ways, ranging from the broad to the specific. But an account of both lay and legal dictionaries suggests that definitions of the term fall into one of two categories: “proceeding” may be used either in a general sense to mean “[t]he carrying on of an action or series of actions; action, course of action; conduct, behavior” or more specifically as a legal term to mean “[a] legal action or process; any act done by authority of a court of law; a step taken by either party in a legal case.” Proceeding, Oxford English Dictionary, available at http://www.oed.com; see also Black‘s Law Dictionary 1241 (8th ed.2004) (defining proceeding either narrowly as (1) “[t]he regular and orderly progression of a lawsuit, including all acts and events between the time of commencement and the entry of judgment;” (2) “[a]ny procedural means for seeking redress from a tribunal or agency;” and (3) “[t]he business conducted by a court or other official body; a hearing” or more broadly as “an act or step that is part of a larger action.“). As such, one of the word‘s definitions (“an action or series of actions“) is broad enough to include a criminal investigation, as it encompasses a
Dictionary definitions of the term “proceeding” alone, therefore, cannot conclusively resolve whether an FBI investigation qualifies as an official proceeding under § 1512. But dictionary definitions in isolation do not end our inquiry. When a term has both a general and a more technical meaning, we must look to surrounding words and phrases to decide which of the two meanings is being used. As it was once aptly explained: “Sometimes context indicates that a technical meaning applies.... And when law is the subject, ordinary legal meaning is to be expected, which often differs from common meaning.” Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 73 (2012).
Several aspects of the definition for “official proceeding” suggest that the legal—rather than the lay—understanding of term “proceeding” is implicated in the statute. For one, the descriptor “official” indicates a sense of formality normally associated with legal proceedings, but not necessarily with a mere “action or series of actions.” See
Thus, clues in the text surrounding “proceeding“—although perhaps not conclusive—point us in a general direction. And the overall tenor of the definitions associated with the legal usage of “proceeding” supports the notion that a mere criminal investigation does not qualify as one. See Black‘s Law Dictionary 1241 (8th ed.2004). As the commentary accompanying that definition succinctly explains, “‘Proceeding’ is a word much used to express the business done in courts” and “is an act done by the authority or direction of the court, express or implied.” Id. (quoting Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899)). Indeed, in listing the various actions that might qualify as a “proceeding,” in law the earliest “ancillary or provisional step[]” adjudged to qualify as such was an arrest, which—of course—would occur after the criminal investigation had already been completed. Id. (quoting Edwin E. Bryant, The Law of Pleading Under the Codes of Civil Procedure 3-4 (2d ed. 1899)).
Thus the definition of the term “proceeding” strongly suggests that “a proceeding before a Federal Government agency which is authorized by law” does not encompass a criminal investigation. See
2
What the term “proceeding” alone leaves mildly ambiguous, the broader statutory context makes entirely plain: an “official proceeding” does not include a criminal investigation.
Examining the term “proceeding” within the grammatical structure of the definition at issue, it becomes clear that the term connotes some type of formal hearing. The statute refers to proceedings “before a
Looking more broadly to § 1512 where the term “official proceeding” is repeatedly used, it becomes even more apparent that a criminal investigation is not incorporated in the definition. Section 1512 refers to “prevent[ing] the attendance or testimony of any person in an official proceeding“; “prevent[ing] the production of a record, document, or other object, in an official proceeding“; and “be[ing] absent from an
Additionally, it would be odd to interpret “official proceeding” broadly to incorporate investigations when the statutory scheme already provides an explicit mechanism to criminalize obstruction of a criminal investigation. Section 1512(f)(1) states that “an official proceeding need not be pending or about to be instituted at the time of the offense” for criminal liability to attach under the obstruction of justice statute. By extending the statute‘s reach to criminal activities that occur before “official proceedings” commence, this subsection expands the scope of the obstruction of justice statute to include criminal investigations. By contrast, if we were to read the phrase “official proceeding” to include an FBI investigation, as the Government urges us to do, this subsection of the statute would work to criminalize actions taken before an investigation was even “pending or about to be instituted.” Id. We do not think that the obstruction of justice statute was intended to reach so far back as to cover conduct that occurred even pre-criminal-investigation. Indeed, such a construction would be in tension with Supreme Court precedent requiring a nexus between the obstructive act and criminal proceedings in court. See Arthur Andersen LLP v. United States, 544 U.S. 696, 708, 125 S.Ct. 2129, 161 L.Ed.2d 1008 (2005) (interpreting a materially similar subsection of § 1512 as requiring that the defendant have “knowledge that his actions are likely to affect [a] judicial proceeding” in order to have the “requisite intent to obstruct“).
Thus, in light of the plain meaning of the term “proceeding,” its use in the grammatical context of the “official proceeding” definition, and the broader statutory context, we conclude that a criminal investigation is not an “official proceeding” under the obstruction of justice statute.6
B
The district court in this case instructed the jury that “an ‘official proceeding’ includes an investigation by the Federal Bureau of Investigation.” As we have already determined, such instruction was legally erroneous: an FBI investigation is not an official proceeding under the obstruction of justice statute.
Normally, an error in a jury instruction requires reversal of the defendant‘s conviction “unless the [error] was harmless beyond a reasonable doubt.” United States v. Henderson, 243 F.3d 1168, 1171 (9th Cir.2001). But here, we do not need to determine whether the erroneous jury instruction was harmless. Both before the district court and on appeal, the Government conceded that, if an FBI investigation was not an official proceeding, then the obstruction of justice charges could not have been sustained on the evidence presented at trial.
The Government‘s concession regarding the sufficiency of the evidence conclusively resolves this case in the defendants’ favor. Not only should their convictions be reversed, but retrial must also be barred. United States v. Bibbero, 749 F.2d 581, 586 (9th Cir.1984) (“An appellate reversal of a conviction on the basis of insufficiency of the evidence has the same effect as a
REVERSED and REMANDED.
Notes
The first, Kelley, did not even analyze the meaning of the term “official proceeding” as used in the obstruction of justice statute. Instead, the court “assume[d] that the AID Inspector General‘s investigation was a proceeding under § 1512 ...” based on an agreement between the parties. Kelley, 36 F.3d at 1128. This assumption carries no persuasive weight.
The second, Gonzalez, addressed the meaning of “official proceeding” as it is used in the statutory subsection delineating appropriate venue for § 1512 prosecutions. Gonzalez, 922 F.2d at 1054-56. That subsection specifies that venue lies “in the district in which the official proceeding (whether or not pending or about to be instituted) was intended to be affected.”
We are not persuaded that the Second Circuit correctly analyzed the meaning of the term official proceeding in this statute. First, that court never carefully parsed the plain meaning of the definition for “official proceeding” but instead relied on Congress‘s “purpose” to “protect those persons with knowledge of criminal activity who are willing to confide in the government” to reach its conclusion. Id. at 1055. Second, that court never considered that the venue provision could extend to investigations, not through the term “official proceeding,” but through the subsequent parenthetical phrase—“(whether or not pending or about to be instituted).” We thus decline to adopt the Second Circuit‘s reading in this case.
Instead, we find the decision of the Fifth Circuit in Ramos to be far more persuasive and relevant for our purposes. See Ramos, 537 F.3d at 460-64. There, unlike Gonzalez, the court directly analyzed the meaning of the phrase “official proceeding” as used in the substantive criminal provisions of § 1512. Id. Consulting the plain language of the statute and the broader context of the statutory scheme, that court determined that internal agency investigations of employee misconduct were not official proceedings. Id. Our independent analysis of the text leads us to reach a similar conclusion with regard to criminal investigations.