5-20-16 - James Sexton Reply Brief

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 1 of 41
Appeal No. 14-50583

IN THE
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
United States of America,
Plaintiff and Respondent,
v.
James Sexton,
Defendant and Appellant.
On Appeal from the United States District Court
for the Central District of California
Hon. Percy Anderson
Orig. Case No. 2:13-CR-00819-PA-5
APPELLANT JAMES SEXTONS REPLY BRIEF
THOMAS P. OBRIEN (SB# 166369)

KATHRYN C. WANNER (SB# 269310)
PAUL HASTINGS LLP
515 South Flower Street,
Twenty-Fifth Floor
Los Angeles, California 90071-2228
Telephone: 1(213) 683-6000
Facsimile: 1(213) 627-0705
Attorneys for Appellant
James Sexton
Table of Contents
Page
I.
INTRODUCTION AND FACTUAL SUMMARY .......................................1
II.
THE DISTRICT COURT ERRED IN GIVING THE MIXED

MOTIVE INSTRUCTION. ..........................................................................4
III.
IV.
V.
VI.
A.
Obstruction of Justice Requires a Predominantly Corrupt

Purpose. ................................................................................................4
B.
Under the Fair Warning Doctrine and the Rule of Lenity,

Ambiguity in Section 1503(a) Should Have Been Resolved in
Sextons Favor......................................................................................7
THE DISTRICT COURT ALLOWED THE GOVERNMENT TO

PRESENT AN INCOMPLETE AND MISLEADING TRANSCRIPT. .....10
A.
Portions of Sextons Grand Jury Testimony Should Have Been

Admitted under the Rule of Completeness. .......................................10
B.
Selectively Editing Sextons Testimony was Not Harmless and

Objectively Misled the Jury. ..............................................................16
THE DISTRICT COURT SHOULD HAVE SUPPRESSED

SEXTONS GRAND JURY TESTIMONY FOR FAILURE TO
PROVIDE A TARGET WARNING. ...........................................................17
A.
The Government Objectively Knew Sexton Was a Target. ...........18
B.
The USAM Explicitly Requires Prosecutors to Provide Target

Warnings. ...........................................................................................21
C.
Due Process Requires Federal Courts to Exercise Supervisory

Authority over Grand Jury Procedural Rules Governing
Defendants. .........................................................................................22
THE DISTRICT COURT ERRED IN EXCLUDING TESTIMONY

REGARDING THE GOVERNMENTS WITHDRAWAL OF A
WRIT. ...........................................................................................................25
A.
Evidence of the Writs Withdrawal Was Permitted During the

First Trial, but Excluded from the Second. ........................................25
B.
The Trial Court Erred in Excluding Evidence Related to the

Withdrawal of the Writ. .....................................................................26
CONCLUSION.............................................................................................31
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Table of Authorities
Page(s)
Cases
Gollehon v. Mahoney,
626 F.3d 1019 (9th Cir. 2010) ..............................................................................8
Griffith v. Kentucky,
479 U.S. 314 (1987) .......................................................................................25,27
Ingram v. United States,
360 U.S. 672 (1959) ..............................................................................................5
Marks v. United States,
430 U.S. 188 (1977) ..............................................................................................9
Miranda v. Arizona,
384 U.S.436 (1966) ..................................................................................18, 19,20
United States v. Banks,
514 F.3d 959 (9th Cir. 2008) .........................................................................4, 5,6
United States v. Bonds,
784 F.3d 582 (9th Cir. 2015) .................................................................6, 9, 28,29
United States v. Chu Kong Yin,
935 F.2d 990 (9th Cir. 1991) ..............................................................................27
United States v. Collicott,
92 F.3d 973 (9th Cir. 1996) ...............................................................11, 12, 15,16
United States v. Conley,
186 F.3d 7 (1st Cir. 1999) ...................................................................................10
United States v. Crocker,
568 F.2d 1049 (3d Cir. 1977) .............................................................................25
United States v. Estepa,
471 F.2d 1132 (2d Cir. 1972) .............................................................................24
United States v. Flores,
802 F.3d 1028 (9th Cir. 2015) ............................................................................17
- ii -
(continued)
Page(s)
United States v. Jacobs,

547 F.2d 772 (2d Cir. 1976) ...............................................................................23
United States v. Ladum,
141 F.3d 1328 (9th Cir. 1998) ............................................................................29
United States v. Lanier,
520 U.S. 259 (1997) ..............................................................................................7
United States v. Liu,
731 F.3d 982 (9th Cir. 2013) ................................................................................4
United States v. Macias,
789 F.3d 1011 (9th Cir. 2015) .......................................................................17,30
United States v. Mandujano,
425 U.S. 564 (1976) ............................................................................................23
United States v. Marbella,
73 F.3d 1508 (9th Cir. 1996) ..............................................................................28
United States v. Marshall,
767 F.2d 293 (6th Cir. 1985) ..............................................................................10
United States v. Millan,
230 F.3d 431 (1st Cir. 2000) ...............................................................................11
United States v. Mullins,
22 F.3d 1365 (6th Cir. 1994) ..............................................................................10
United States v. Ortega,
203 F.3d 675 (9th Cir. 2000) ..............................................................................16
United States v. Rasheed,
663 F.2d 843 (9th Cir. 1981) ..............................................................................29
United States v. Ryan,
455 F.2d 728 (9th Cir. 1971) ................................................................................5
- iii -
(continued)
Page(s)
United States v. Santos,

553 U.S. 507 (2008) ..............................................................................................7
United States v. Smith,
424 F.3d 992 (9th Cir. 2005) ................................................................................5
United States v. Tham,
960 F.2d 1391 (9th Cir. 1992) .......................................................................20,28
United States v. Thompson,
37 F.3d 450 (9th Cir. 1994) ................................................................................30
United States v. Thompson,
728 F.3d 1011 (9th Cir. 2013) ..............................................................................8
United States v. Wallace,
848 F.2d 1464 (9th Cir. 1988) .......................................................................17,18
United States v. Washington,
431 U.S. 181 (1977) ............................................................................................24
United States v. Wilkerson,
84 F.3d 692 (4th Cir. 1996) ................................................................................16
United States v. Williams,
504 U.S. 36 (1992) ..............................................................................................24
Statutes
18 U.S.C. 1503(a) ..........................................................................................passim
Other Authorities
Fed. R. Crim. P. 52(a) ..............................................................................................16
Fed. R. Evid. 106 .....................................................................................................11
Fed. R. Evid. 803(3) .................................................................................................15
- iv -
I.
INTRODUCTION AND FACTUAL SUMMARY

The Governments opposition brief presents a simple story: the conviction
should be affirmed because Appellant James Sexton confessed. The Government

is wrong. This appeal is not about whether Sextona young former Los Angeles
County Deputy Sheriff caught in a turf war between the Los Angeles County
Sheriffs Department (LASD) and the FBIconfessed. This appeal is about
whether that confession should have ever come into evidence. This appeal is
about whether the Governments excerpting of Sextons Grand Jury testimony
violated the Federal Rule of Evidences Rule of Completeness, when Sextons
more complete testimony showed neither the confession the Government relies
on so heavily nor a dominant purpose to impede or to obstruct justice. This appeal
is about whether the District Court got the law right, or whether the District
Courts mixed motive instruction allowed the jury to convict Sexton without
showing his dominant purpose was to obstruct justice.
The Governments simple story, in other words, is simply wrong.
In 2011, the Federal Government was conducting an undercover
investigation of the LASD. (Sextons Excerpts of Record (ER) ER183 at
574:10-12.) During the investigation, the FBI provided a cellular phone to an
extremely dangerous inmate, Anthony Brown, who had been sentenced to more
than 400-years imprisonment. (ER183 at 574:11-19.) A cellular phone in the
hands of an inmate is exceptionally dangerous, as it can be used in a variety of

crimes, including killing witnesses. (Governments Excerpts of Record (GER)
GER779 at 1020:8-19; GER432 at 673:9-12.) When former Sheriff Leroy Baca
and former Undersheriff Paul Tanaka discovered the planted phone, they ordered a
counter-investigation into the FBI (concerned a law may have been breached) and
sought to protect Inmate Brown and their investigation. (ER207 at 846:10-12;
ER204 at 813:8-14; and ER240-241 at 885:23-886:4.)
Sexton did not participate in any meetings or conversations with Sheriff
Baca or Undersheriff Tanakaor any other officialpertaining to the FBIs
investigation or the LASDs counter-investigation. Instead, his commanding
officers directed Sexton, a low-level deputy (GER121 at 362:9-16), to change
Inmate Browns name in the LASDs inmate locator system and to relocate Inmate
Brown to different facilities, a commonplace practice to ensure the safety of highprofile and at-risk inmates. (ER250-254 at 1020:23-1030:3 and GER 277-278 at
518:12-519:11.) As had been done hundreds of times to remove such inmates
from the LASD computer system, see id., Sexton followed facially-valid orders
issued by his commanding officers, consistent with LASD policy. (ER181-182 at
507:13-508:7; ER214-241 at 859-886:1; and ER245-246 at 890:18-891:9.)
Ultimately, a full-scale jurisdictional, tit-for-tat, turf war erupted between the FBI
and the LASDand while that conflict is a tragedy in and of itselfit led to
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another tragedy. It led to the prosecution and ultimate conviction of a junior

deputy for following his commanding officers lawful orders. (ER490-507.)
But that is not all. The Governments turf war mentality led them to
disregard their own rules. No one disputes that Sexton fully cooperated with
federal prosecutors and investigators, meeting with the Government more than 30
times and testifying before the Grand Jury twice. Yet despite relying almost solely
on that testimony to charge and prosecute Sexton, the Government never told him
prior to his Grand Jury appearances that he was a target of their investigation,
notwithstanding the United States Attorneys Manual (USAM) mandate to do so.
The Governments turf war mentality also led it to selectively edit Sextons
testimonydeleting his comments demonstrating he was not intending to obstruct
justicein his second trial; after presenting the full and complete story led to an
evenly-split, hung jury in his first trial.
This appeal, in short, is about much more than Sextons supposed
confession. It is about whether the law was properly followed in the trial below
and the events that led up to it, and, ultimately, about fairness. In his opening
brief, Sexton gave this Court numerous independent grounds to reverse. The
Governments opposition brief says nothing that should change the result.
Sextons conviction should be set aside.
-3-
II.
THE DISTRICT COURT ERRED IN GIVING THE MIXED

MOTIVE INSTRUCTION.
In his opening brief, Sexton explained why the District Court erred in
providing a mixed motive instruction. See AOB31-43. Properly construed, 18

U.S.C. 1503(a), requires that the Government prove the defendant had a
predominantly corrupt purpose in obstructing justice and not that this purpose was
more than merely incidental as the District Court instructed the jury. The
Government cannot meet that standard here and thus unsurprisingly argues for a
lower standard. Governments Answering Brief (GAB) at 35-36.1 As shown
below, the Government is wrong and reversal should follow. United States v. Liu,
731 F.3d 982, 987 (9th Cir. 2013) (reversal warranted where an instructional error
is not harmless).
A.
Obstruction of Justice Requires a Predominantly Corrupt

Purpose.
The Government first attempts to recast this Courts decision in United

States v. Banks, 514 F.3d 959 (9th Cir. 2008). (GAB at 39-42.) Sexton showed in
his opening brief that Banks supports reversal. (AOB at 36-37.) It still does.
Despite the Governments contention (GAB34 n.9) that the parties agreed to this
instruction, the parties only agreed to the first two paragraphs of this instruction.
(ER255-56; ER33.) Over Sextons objection, the court added the third paragraph
to the parties jury instructions stating that the Government need only prove that
the defendant had a more than incidental purpose of obstruction. (ER58-59.) This
was error.
-4-
In Banks, this Court discussed the elements required for a conviction

regarding racketeering, including the defendants purpose mirroring the mens
rea question under Section 1503(a). Id. at 966, 968. Banks demonstrates that
when a criminal statute speaks of purpose as an important element of the crime,
that purpose must be more than merely incidental. Indeed, Banks establishes
that a corrupt intent must be integral to the defendants purpose. Banks, 514
F.3d at 969-70 (the Government must prove that defendants dominant purpose
was to commit the underlying offense). Relevant here, this Court has already
explained that Section 1503s use of the word corrupt[ly] means for an evil or
wicked purpose. United States v. Ryan, 455 F.2d 728, 734 (9th Cir. 1971). As
the obstruction charge requires proof of purpose as an important element of the
crime, this Courts analytical approach in Banks confirms that it is the
Governments burden to show Sextons alleged corrupt purpose was the
dominant or integral purpose. 2
2
The Government also claims that the level of intent for a conspiracy charge need
not be substantial, see GAB at 37, but this misstates the law. As a case the
Government relies on confirms, [c]onspiracy to commit a particular substantive
offense cannot exist without at least the degree of criminal intent necessary for the
substantive offense itself[,] meaning that on the 371 charge, the Government had
to meet Section 1503s mens rea. Ingram v. United States, 360 U.S. 672, 678
(1959) (emphasis added). The Governments other claims, about the nonexclusivity of intent for the 1503 charge, see GAB at 36-37, are equally
inapposite. The cases the Government invokes do not answer the question. While
they discuss non-exclusivity, see, e.g., United States v. Smith, 424 F.3d 992, 101011 (9th Cir. 2005), they do not meaningfully address the relative importance
-5-
The courts mixed motive or more than merely incidental instruction

meant that the jury could ignore that Sextons dominant purpose was to follow
what appeared to be lawfully-issued orders as required by the LASD hierarchy.
Despite the rumors and innuendo permeating the LASD concerning the
planted cellular phone and the FBIs undercover operation, the jury should have
been allowed to consider evidence permitting it to infer that Sextons actions
regarding Inmate Brown did not establish the necessary corrupt specific and
dominant intent.
Moreover, contrary to the Governments assertion (GAB40), a narrow
reading of Section 1503 is required to avoid the risk of creating status crimes,
wherein any investigatory act by a state or local law enforcement agency that may
overlap with a federal investigation may be deemed obstruction of justice. There is
no indication that Congress intended that the mere existence of competing or
conflicting law enforcement investigations should become a status offense
paralyzing local law enforcement agencies from taking any action where there may
be overlapping federal jurisdiction. Such a reading would endanger parallel
investigations across the country. Cf. United States v. Bonds, 784 F.3d 582, 584
(9th Cir. 2015) (Kozinski, J. concurring) ([S]ection 1503 poses a significant
among non-exclusive purposes. Banks does that expressly, see Banks, 514 F.3d at
968, and Banks confirms reversal is appropriate.
-6-
hazard for everyone involved in our system of justice, because so much of what the
adversary process calls for could be construed as obstruction.).
B.
Under the Fair Warning Doctrine and the Rule of Lenity,

Ambiguity in Section 1503(a) Should Have Been Resolved in
Sextons Favor.
The District Courts confusing mixed motive instruction (as well as its
previous denial of Sextons motion to dismiss on the same legal question, see
AOB23, and ER33) was based on a statute which, under the Fair Warning doctrine,
should have been interpreted in Sextons favor. United States v. Lanier, 520 U.S.
259, 267 (1997) (fair warning is whether the statute, either standing alone or as
construed, made it reasonably clear at the relevant time that the defendants
conduct was criminal). Likewise, under the rule of lenity, ambiguity in the
statutory language should have led the Court to instruct the jury that the
Government had to show that Sextons dominant purpose was to obstruct justice.
United States v. Santos, 553 U.S. 507, 514 (2008).
Where, as here, the statute uses a term like corruptly that on its face
conveys a gravity of wickedness, but the statute does not define the necessary
depth of wickedness required for conviction, the statute is ambiguous. When a
statute contains ambiguous language a defendant should not be held criminally
liable when his actions were not and could not have reasonably been understood to
-7-
have been covered by that statute. United States v. Thompson, 728 F.3d 1011 (9th
Cir. 2013).
In Thompson, the defendants used a thermal tool to cut through metal during
a robbery, and were convicted for larceny with a statutory sentencing enhancement
for using fire during the felony. Id. at 1013-14. This Court reversed, holding
that the defendants did not have fair warning that under the statute their actions
would subject them to the enhanced sentence. Id. at 1020. This Court focused on
the fact that the Government failed to identify any other cases where the sentencing
enhancement was applied in cases involving thermal cutting tools. Id. Similarly
here, the Government has not identified any other prosecutions for obstruction of
justice where defendants were following lawful job-related orders while having
merely incidental ill-will towards the Federal Government.
The Government ignores Thompson and incorrectly relies on Gollehon v.
Mahoney to argue that Sexton understood his actions to constitute obstruction of
justice at the time he was given and followed lawfully-issued orders. 626 F.3d
1019, 1023 (9th Cir. 2010). In Gollehon, the defendant brutally murdered another
inmate in prison and there was no evidence that the defendant had a good faith
basis to believe, at the relevant time, that his actions may have been lawfullyissued by a superior. Id. at 1028.
-8-
Here, despite all the rumors and innuendo, there is no evidence that
Sexton knew or had fair warning, at or prior to the time the orders were issued, that
he could or should object to his commanding officers orders, particularly when
relocating an at-risk inmate and changing his name in the locator system had
occurred hundreds of times to protect inmates. (ER250-254 at 1020:23-1030:3
and GER 277-278 at 518:12-519:11.) Given the ambiguity in the statute regarding
the mens rea requirement, the Fair Warning Doctrine confirms that it should have
been interpreted in Sextons favorthat was true at the instructions phase, see
ER255-256 at 1049:22-1050:15; ER58-59, and when Sexton moved to dismiss.
ER455-456. Either reversal or remand is appropriate. See Marks v. United States,
430 U.S. 188, 196 (1977) (applying fair warning doctrine to jury instructions); see
also Bonds, 784 F.3d at 582 (Kozinski, J. concurring) (The amorphous nature of
the statute is also at odds with the constitutional requirement that individuals have
fair notice as to what conduct may be criminal.).
The Government likewise asserts that Sextons arguments (see AOB at 4244) have not identified a textual ambiguity justifying the imposition of the rule of
lenity where ambiguous criminal laws are interpreted in favor of the defendant.
(GAB42.) This, too, is incorrect. The parties hotly dispute the scope and breadth
of the word corruptly in the statutory language. Either Sexton is right in his
reading or there is statutory ambiguity here.
-9-
The Government tries to bolster its argument by citing a string of cases in

which law enforcement officers have been prosecuted. (GAB at 43-44.) The
Government tellingly discusses none of these cases facts, none of which mirrors
the facts here, where a junior deputy follows what he believes to be lawful orders
of his commanding officers only to be prosecuted following a turf war between
agencies. See, e.g., United States v. Conley, 186 F.3d 7, 15 (1st Cir. 1999)
(withholding information during testimony); United States v. Mullins, 22 F.3d
1365, 1367 (6th Cir. 1994) (defendant giving instructions, not following them);
United States v. Marshall, 767 F.2d 293, 294 (6th Cir. 1985) (defendant had
extorted money from the store owner). The clear factual discrepancies between
the cases the Government relies on and this case shows why both the Fair Warning
Doctrine and the rule of lenity support reversal.
III.
THE DISTRICT COURT ALLOWED THE GOVERNMENT TO

PRESENT AN INCOMPLETE AND MISLEADING TRANSCRIPT.
A.
Portions of Sextons Grand Jury Testimony Should Have Been

Admitted under the Rule of Completeness.
As Sexton explained in his opening brief, the District Court incorrectly

excluded potentially exculpatory, non-hearsay portions of Sextons Grand Jury
testimony that should have been admitted pursuant to Federal Rule of Evidence
106. (See AOB at 44-49.) The rule of completeness provides:
If a party introduces all or part of a writing or recorded
statement, an adverse party may require the introduction,
- 10 -
at that time, of any other part or any other writing or

recorded statement that in fairness ought to be
considered at the same time.
Fed. R. Evid. 106 (emphasis added). Admitting additional portions of a
defendants statement is appropriate to correct a misleading impression of a prior
statement created by taking [the defendants] comments out of context. United
States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v. Millan, 230
F.3d 431, 434 (1st Cir. 2000) (a party wishing to introduce only a portion of a
recorded statement may be precluded from doing so).
The Government does not dispute that during Sextons first trialwhich
resulted in an evenly split hung jurythe District Court admitted a relatively
complete recitation of Sextons Grand Jury testimony. (See ER395-453.) In the
second trial, the Government requested, and the trial court excluded in violation of
the rule of completeness, critical context for Sextons alleged confession and other
key evidence, resulting in a guilty verdict. (ER11-12.) This was not harmless
error.
The Government focuses on Sextons purported confession and contends
everything else is irrelevant. It further argues that Sexton has never explained
how any particular statement was taken out of context to mislead the jury.
(GAB51-52.) These contentions collapse under their own weight.
- 11 -
In his opening brief, Sexton identified exemplars of his Grand Jury

statements introduced in the first trial and omitted in the second trial. (AOB at 2223.) These statements related to the basis of Sextons understanding of the source
of the information to which he allegedly confessed. For example, the
Government read a portion of the Grand Jury transcript to the jury discussing
Sextons understanding of an email regarding transferring Inmate Brown to
another station jail. (ER157-159 at 59:14-61:1.) During that same discussion,
Sexton explained that the LASD is all about innuendo and nuance[.] (ER158 at
60:24.)3
The Government excised this entire statement, upon which a reasonable
juror could have inferred that the basis of Sextons knowledge and understanding
regarding the FBI investigation was not premised upon personal knowledge.
Selectively editing the transcriptincluding significant contextallowed the jury
to be misled. United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996).
Similarly, the Government eliminated numerous other statements clarifying
Sextons intent and knowledge behind his alleged confessions. As described in the
Opening Brief, the Government withheld from the jury numerous statements
3
During Sextons closing argument in his first trial, counsel identified fourteen
such statements regarding Sextons lack of knowledge or basis for his claimed
understanding of the LASDs motivations. (ER100-170.) In the second trial, the
Government removed half of these statements. Sexton provided the District Court
with a redline showing the Governments selectively stricken testimony. (See
ER100-170.)
- 12 -
regarding Sextons actual lack of foundation for his alleged confessions, such as:
there were rumors, we as young deputies were speculating, I was not
privileged to the entire information, I had conversations about this with . . . my
peers and just trying to establish what we were doing, innuendo, were baby
faced in there, Im not going to detain a U.S. Attorney at gun point, and [t]his
is our Sheriffs Department . . . [i]ts all about innuendo and nuance. (AOB2223.)
These were not the only sections of excluded testimony making Sextons
Grand Jury transcript misleading in the second trial. Others include:
Omitted Statement
Relevance of the Omitted Statement
Prior to the meeting a cellphone was

discovered in the most secure area that
we have amongst the most dangerous
inmates. (ER104.)
The statement shows Sextons state of

mind with respect to the dangers of
placing a cellular phone into the prison,
including the belief that a lawfullyissued order to investigate the same was
reasonable under the circumstances.
They were still piecing that together
The statement is probative of Sextons
through interviewing both the inmate
state of mind and actual knowledge
and the deputy, and I was not privileged regarding the FBI investigation by
to the entire information of that. I was
providing context to the alleged
having to put it together on my own.
confession that Sexton admittedly knew
(ER106.)
very little about the investigation or the
machinations of Sherriff Baca and/or
Undersheriff Tanaka with respect to the
same.
I had conversations about this with
Sexton explained that other, high-level
Rathbun and my peers and just trying to officials were the leaders of the
establish what we were doing and why
LASDs counter-investigation into the
we were doing it. But they [more senior placement of the cellular phone into the
LASD officers] had the handle on the
prison. A reasonable juror could infer
- 13 -
Omitted Statement
Relevance of the Omitted Statement
investigation. They were the leaders of

the investigation. They made that clear
that at the direction of our unit
commander Lieutenant Thompson that
they were ramrodding what OSJ was
doing with regards to this inmate, and
they set a very adversarial tone towards
the federal government in a dont ask,
dont tell kind of policy. Your need to
know, right to know. (ER108-109 at
10:28-11 through 11:12.)
from the statement that Sexton followed

facially lawfully orders and he did not
believe he could question his
commanding officers regarding the
same.
Q: What was the idea about how

the LASD was going to treat Anthony
Brown after this meeting with everyone
at Heros Park?
A: The bosses had come up with
the idea to sequester him. Just cut off
his access to everybody and that would
include FBI and vice versa.
Q: When you say the bosses,
who is that?
A: . . . . the greater powers that
be. (ER118 at 20:5-26.)
By excluding Sextons statements

related to the bosses or greater
powers that be who were controlling
the LASDs counter-investigation, the
jury could have been left with the false
understanding that Sexton had more
control over the investigation than he
actually possessed.
Coupled with the improper mixed motive jury instruction requiring a

corrupt purpose that was simply more than merely incidental, the exclusion of
significant portions of Sextons testimony permitted the jury to find culpability on
an incomplete and misleading record. The trial court should have permitted the
jury to consider evidence contextualizing Sextons over-zealous assertions
concerning the potential for impeding the FBI investigation and his role in the
- 14 -
same. Sextons basis of knowledge was limited. The jury could have reasonably
inferred that, at the time of the lawfully-issued orders, Sexton believed the orders
to be reasonable given the dangers inherent to placing a cellular phone into the
prison with an at-risk inmate. Such an inference would have negated the mens rea
required to show a corrupt purpose here, particularly without a faulty mixed
motive instruction.
Finally, contrary to the Governments assertions (GAB at 49-50), the
portions of Sextons Grand Jury transcript that he sought to admit during the
second trial were not inadmissible hearsay. Fed. R. Evid. 803(3) (exception from
general hearsay exclusion for statements of the declarants then-existing state of
mind (such as motive, intent, or plan)). Indeed even if the statements were not
admissible under the state of mind exception to the hearsay exclusion, Collicott
clarifies that hearsay statements become relevant and admissible when the
opposing party has admitted other portions of that material, such that
misunderstanding or distortion can be averted only through presentation of another
portion. 92 F.3d at 983 (citing Beech Aircraft Corp. v. Rainey, 488 U.S. 153, 172
(1988)).4 The omitted statements demonstrated Sextons state of mind and basis
4
United States v. Ortega, cited by the Government (GAB49), concerned an

officers testimony regarding the defendants unrecorded oral statements, unlike
the recorded transcript at issue here. 203 F.3d 675, 682 (9th Cir. 2000) (Because
the officers testimony concerned an unrecorded oral confession, the rule of
completeness does not apply). Similarly, United States v. Wilkerson dealt with an
- 15 -
for his admitted statements and should have been included under the rule of
completeness.
B.
Selectively Editing Sextons Testimony was Not Harmless and

Objectively Misled the Jury.
The Government bears the burden of demonstrating harmlessness. See Fed.

R. Crim. P. 52(a). It has not done so. No other evidence, beyond his own omitted
statements, explained the basis for Sextons testimony to the Grand Jury.
Furthermore, contrary to the Governments assertion (GAB at 54-55), the
difference in verdict between the two trials is illustrative of the harm occurring
from selectively editing Sextons Grand Jury testimony.
The Government now claims that any error that occurred due to editing his
statements was harmless because such statements were cumulative of other
evidence offered in the matter. (GAB at 53.) The Government, however, fails to
show any examples of admitted evidence addressing Sextons own state of mind
and how the same relates to whether he formed the requisite specific intent to
commit obstruction. Instead, the Government selected a few instances where the
transcript referenced unofficial statements and innuendos, but these statements
were so divorced from contexti.e., the purported confessionthat they lacked
meaning, particularly with regard to Sextons state of mind. (GAB 52-53 (citing
out of court conversation, not a recorded statement. 84 F.3d 692, 696 (4th Cir.
1996) (holding that when the rule does apply, its purpose is to prevent a party
from misleading the jury).
- 16 -
TT750, TT751, and TT754-55) (more than twenty (20) pages of testimony separate
these statements from the alleged confession).)
The Governments reliance on United States v. Flores, 802 F.3d 1028 (9th
Cir. 2015) (GAB55) is misplaced. Flores did not concern two trials of the same
defendant with different results due to differences in the evidence presented to the
jury. See id. at 1034 (concerning prosecutorial misconduct and prejudicial
evidence). This Court has already held that where [t]he jury hung at the first trial,
and the material difference between the two trials was the admission of [certain
evidence] the error is not harmless. United States v. Macias, 789 F.3d 1011, 1028
(9th Cir. 2015).
United States v. Wallace, 848 F.2d 1464, 1475 (9th Cir. 1988) is likewise
instructive. This Court explained that it was particularly troubled by the possible
cumulative effect of those errors which go to the credibility of the witnesses[.] Id.
at 1476. Similarly, while each of the stricken portions of Sextons testimony
constitutes error, when taken as a whole, the cumulative effect of those errors
likely altered the outcome of the second trial. Reversal is the appropriate remedy.
Id. at 1475.
- 17 -
IV.
THE DISTRICT COURT SHOULD HAVE SUPPRESSED SEXTONS

GRAND JURY TESTIMONY FOR FAILURE TO PROVIDE A
TARGET WARNING.
It is insufficient for the Government to argue that Sextons purported
confession renders meaningless its obligations under the USAM. Like a

confession obtained by violating a defendants Miranda rights would be
suppressed, so, too, should a confession obtained incident to the Governments
failure to advise a defendant of his/her target status. Miranda v. Arizona, 384
U.S.436 (1966). Unless this Court admonishes the prosecutors for their behavior,
no remedy exists to prevent prosecutors from deliberately putting known targets of
an investigation before the Grand Jury and subjecting them to either confessing
(under oath) in that coercive atmosphere or committing perjury.
A.
The Government Objectively Knew Sexton Was a Target.
The USAM defines a target as a person as to whom the prosecutor or the

Grand Jury has substantial evidence linking him or her to the commission of a
crime and who, in the judgment of the prosecutor, is a putative defendant.
(ER476.) By any objective standardand regardless of whether this is a question
of law or question of factit cannot be meaningfully disputed the Government
knew Sexton was a target of the Grand Jury investigation. The Government
claims that, prior to his second Grand Jury appearance on November 28, 2012,
Sexton was not considered a target because he only had been interviewed on
- 18 -
topics unrelated to [Inmate] Brown. (GAB56.) This is patently untrue and any
claim to the contrary would be wrong under either a clearly erroneous or a de novo
standard.
On August 29, 2012, Sexton met with FBI Special Agents and an AUSA.
(GER1783.) At this meeting, according to the Government, Sexton allegedly
explained that he participated in LASDs attempts at hiding inmate Anthony
Brown (Brown) from FBI Agents. Id. On November 16, 2012, two weeks
before the second Grand Jury appearance, the prosecutor and two FBI Special
Agents again interviewed Sexton. (GER1799-1807.) According to the FBI
memorandum memorializing the interview, Sexton specifically admitted, inter
alia, to following Undersheriff Tanakas orders regarding Inmate Browns
treatment (particularly, in view of the federal Writ), including using the LASD
computer system to alter Inmate Browns name and edit his file jacket.
(GER1800-03.) At this same meeting, Sexton described how a cellular phone was
found in Inmate Browns possession and that [a]fter the phone was found,
[Inmate] Brown was frequently moved around[.] (GER1801.)
Additionally, the Government contends that prior to his second Grand Jury
appearance, Sexton never admitted that a federal writ or court order motivated
Inmate Browns movements and name changes within the LASD system, and thus
- 19 -
the Government did not know he was a target of their investigation. (GAB57,
emphasis added.) Again, this is demonstrably false.
At the same November 16, 2012 meeting with the FBI and AUSA, and
according to the FBIs own record of the conversation, Sexton explained that he
had heard there was a federal writ issued for [Inmate] Brown, [and] it was [his]
understanding that . . . LASD was attempting to play a dueling court order game.
(GER1803.) Sexton proceeded to tell the FBI agents and AUSA that [o]ne day
after the writ was issued, [Deputy] Smith called . . . OSJ deputies to tell them they
should take whatever steps necessary if the FBI or United States Attorney came to
take Brown into their custody. Id.
The fact that Sexton told the Government about his knowledge of the
federal writ weeks before he was ordered before the Grand Jury was more than
sufficient for the prosecution to have determined that he was a target of their
investigation into obstruction of some aspect of the Governments judicial
function. United States v. Tham, 960 F.2d 1391, 1400 (9th Cir. 1992). The
Government, therefore, was not allowed to summon Sexton to testify before the
Grand Jury because he was a putative defendant or target of the investigation.
(ER476 (citing USAM, 9-11.151).)
Further, during the second trial, the Government made numerous references
to Sextons alleged confessions prior to his second Grand Jury testimony,
- 20 -
disproving its own argument that the Government did not consider him to be a
target prior to his November 28, 2012 Grand Jury testimony:
First interview, Agent Dahle: 5 Sexton took part in hiding Anthony
Brown from the FBI. (GER925.)
November 16, 2012 . . . So Leah Marxs first interview of James
Sexton: Sexton talked about how he was involved in this early[.]
(GER923-24.)
Sexton also talked about his concealment. This is his guilty conscience .
. . November 16th interview, Leah Marx: Sexton took steps to ensure
that Browns name was not in the LASD books. (GER926.)
What about his own corrupt intent? His own corrupt intent? Remember
him you heard this in the interview that Leah Marx [November 16,
2012] conducted of him. Sexton said that he would use Deputy Teixeira
to get around Deputy Tara Hadley Adams. (GER928.)
Agent Dahle interviews Sexton ten days later [November 26, 2012, two
days before Sextons second Grand Jury appearance]. He says something
entirely consistent. (GER924.)
The record belies the Governments claims that Sexton did not become a
target of the investigation until after his second Grand Jury appearance.
B.
The USAM Explicitly Requires Prosecutors to Provide Target

Warnings.
The USAM states that while a Grand Jury may properly subpoena a subject
or target of an investigation, that right is limited due to the potential for the
appearance of unfairness. (ER474.) Thus, before a target is subpoenaed, it is
United States Department of Justice policy to advise a Grand Jury witness of his
Agent Dahle interviewed Sexton on August 29, 2012. (GER1770.)

- 21 -
or her rights if such a witness is a target or subject of a Grand Jury

investigation. (ER476.)
The Government may not now attempt to sidestep the notice requirement by
claiming that it had not decided to prosecute Sexton until after he testified before
the Grand Jury. The USAM is not so limited. A target must be notified of his
status and rights prior to being subpoenaed for Grand Jury testimony. That did not
occur here. The Government specifically advised Sexton, and his counsel, that he
was not a target of the investigation (a claim that was false). (ER458 at 4-5;
ER459 at 9 (Sextons prior counsel stated under penalty of perjury that it was
obvious to me that I had been misled and James Sexton had always been a target
defendant).)
By its own admissionsparticularly given its reliance on the evidence at
trialthe Government believed it had sufficient facts linking Sexton to a crime. It,
therefore, had a duty to notify Sexton (or counsel) of his target status prior to
obtaining a sworn confession.
C.
Due Process Requires Federal Courts to Exercise Supervisory

Authority over Grand Jury Procedural Rules Governing
Defendants.
It is only under the federal courts supervision that the United States
Attorneys Office may use the Grand Jurys investigatory power, and that power is
limited by the courts responsibility to ensure that the assurances of the United
- 22 -
States Attorneys [are translated] into consistent performance by their assistants.

United States v. Jacobs, 547 F.2d 772, 778 (2d Cir. 1976) (citing United States v.
Costello, 350 U.S. 359 (1956) (emphasis in original)). The Grand Jury has
historically been a shield against arbitrary or oppressive action, by insuring that
serious criminal accusations will be brought only upon the considered judgment of
a representative body of citizens acting under oath and under judicial instruction
and guidance. United States v. Mandujano, 425 U.S. 564, 571 (1976).
Here, the Government misused the District Courts authority over the Grand
Jury by compelling the Grand Jury testimony of a target of an investigation. The
Government also put three of Sextons co-defendants before that same Grand Jury
(without warnings) before subsequently indicting them. Such repeated and
egregious conduct justifies this Court exercising its supervisory power to suppress
Sextons Grand Jury testimony for the Governments failure to follow binding
USAM guidance. See, e.g., United States v. Jacobs, 547 F.2d at 778 (suppressing
Grand Jury testimony where defendant was not provided with a target notice);
United States v. Estepa, 471 F.2d 1132, 1137 (2d Cir. 1972) (reversing following
improper presentation of evidence before the Grand Jury).
Contrary to the Governments assertion, Sexton is not seeking to have this
Court impermissibly prescribe standards of prosecutorial conduct. (GAB62
(citing United States v. Williams, 504 U.S. 36, 45 (1992).) Williams is
- 23 -
distinguishable. The issue there was whether a district court may dismiss an
indictment when the Government failed to disclose to the Grand Jury exculpatory
evidence in its possession. Id. at 37-38. Exculpatory evidence to the Grand Jury is
not at issue here. Instead, Sexton asks the Court to exercise its supervisory power
to ensure that this Districts USAO not compel putative defendants testimony
before the Grand Jury.
United States v. Washington, 431 U.S. 181, 190 (1977) is also inapposite. In
Washington, the Supreme Court found that target warnings are not constitutionally
required when the interrogation is not conducted in an inherently coercive
setting. Washington emphasized that the respondent was on notice that he was a
suspect because he was made aware that his exculpatory version of events had
been disbelieved, and the prosecutor made it clear during an interview that his
implausible story was not accepted as true. Id. at 189.
Unlike Washington, the Government knew that Sexton was a target and
deliberately misled him. (ER458 at 4.) Nor is there evidence, during Sextons
testimony to prosecutors, that he was abundantly aware that prosecutors found
him to be incredible. Much the opposite, Sexton believed he was not a target but a
witness, because thats what the Government told his counsel.
The Governments deliberate lulling of Sexton should not be countenanced.
Lack of candor by government prosecutors in making disclosures can in some
- 24 -
instances amount to a due process violation[;] United States v. Crocker, 568 F.2d
1049, 1056 (3d Cir. 1977); and due process exists to ensure that similarly situated
defendants are treated the same. Griffith v. Kentucky, 479 U.S. 314, 323 (1987).
Here, the Government failed to follow its own publicly available USAM, 6 and treat
Sexton with candor. Having been singled out for unfair treatmentanother
indication of how far this turf war wentSextons Grand Jury testimony should be
suppressed.
V.
THE DISTRICT COURT ERRED IN EXCLUDING TESTIMONY

REGARDING THE GOVERNMENTS WITHDRAWAL OF A WRIT.
A.
Evidence of the Writs Withdrawal Was Permitted During the

First Trial, but Excluded from the Second.
On or about August 25, 2011, the Court issued a Writ compelling the
production of Inmate Brown for testimony before the Grand Jury on September 7,
2011. (ER257.)During the first trial, Sexton introduced evidence that, four days
after the Writ was issued, Sheriff Baca met with then-United States Attorney
Andr Birotte to discuss the investigation into the LASD. (ER200-203.)
Following this meeting, FBI Supervisory Special Agent Carlos Narro testified that
there [were] discussions about holding off on some subpoenas and stuff. (ER190
at 702:17-23.) Then, SSA Narro testified that AUSA Lawrence Middleton (who
6
The Supreme Court recently stated that the USAM is supposed to guide
prosecutors decisions. Torres v. Lynch, 578 U.S. ___, (2016) (when U. S.
Attorneys have jurisdiction, they are generally to defer to, rather than supplant,
state prosecutions of serious offenses. [citing the USAM].)
- 25 -
was overseeing the investigation into the LASD) told him that, on August 29,
2011, the writ for Anthony Brown had been withdrawn[.] (ER354.) SSA Narro
explained:
Q:
So Mr. Middleton told you that the writ had been
withdrawn . . .
A.
That was my understanding. The investigation as
a whole was going to be halted. . . .
...
Q.
As you sit here today, do you have any information
that would lead you to believe that that delay impeded
your investigation?
A.
Not that I know of.
(ER354-356 at 797:14-799:22.). 7
Because the Writ was withdrawn four days after being issued, the
Government was not expecting Inmate Brown to appear for Grand Jury testimony,
and the FBI investigation had been suspended; it would have been reasonable for
the jury to infer that Sexton could not have committed obstruction.
Prior to Sextons second trial, however, the Government moved to exclude
evidence that the Writ had been withdrawn. (ER309-317.) During trial, the
In Sextons second trial, AUSA Middleton disputed that he told SSA Narro the
Writ had been withdrawn. (GAB66.) AUSA Middleton previously admitted,
however, that he told the Federal Marshals Service not to pursue it [the Writ] until
further notice. (GER1422 at 779:22.) The second jury was not allowed to hear
SSA Narros contrary testimony.
- 26 -
District Court granted the Governments motion, holding that because the Court
did not know of any evidence suggesting that the withdrawal of the Writ was
communicated to the LASD, the Court would preclude any evidence as to the
withdrawal. (ER41 at 650:8-21.)
B.
The Trial Court Erred in Excluding Evidence Related to the

Withdrawal of the Writ.
The Government begins its defense on this issue by trying to lower this
Courts standard of review. (GAB67.) Citing no law, the Government claims this
Court should review only under an abuse of discretion standard not a de novo
standard. While the Government loses regardless of standard, the Government is
wrong. Here, legal issues predominate regarding whether the LASDs knowledge
of the termination of the Grand Jury investigation is sufficient to negate the
elements required to establish obstruction of justice. The District Courts
suppression of evidence turned not on factual disputes, or discretionary
determinations. (ER41 at 650:8-21.) It turned on its understanding of the
underlying charge and materialitylegal questions requiring de novo review. Id.;
see also United States v. Chu Kong Yin, 935 F.2d 990, 994 (9th Cir. 1991)
(explaining de novo review); United States v. Marbella, 73 F.3d 1508, 1515 (9th
Cir. 1996) (same).
Notwithstanding the standard of review, the Government asserts that, even if
the Writ had been withdrawn prior to Inmate Browns scheduled Grand Jury
- 27 -
appearance, the withdrawal would not impact whether Sextons acts obstructed a
Grand Jury investigation. (GAB68.) This argument fundamentally misapprehends
the legal requirements for obstruction of justice, which demands that obstruction at
least be a theoretically possible result of the defendants actions. See 18 U.S.C.
1503(a); see Tham, 960 F.2d at 1400 (Obstruction of justice requires acts to
thwart some aspect of the Governments judicial function.).
While actual obstruction is not an element of proof, the act must be
material and have the capability of obstructing justice. United States v. Bonds,
784 F.3d 582, 585 (9th Cir. 2015). Specifically, the government must prove
beyond a reasonable doubt that the charged conduct was capable of influencing a
decisionmaking person or entityfor example, by causing it to cease its
investigation, pursue different avenues of inquiry, or reach a different outcome.
Id.
Here, the jury should have had the opportunity to hear evidence related to
the Writs withdrawal to make a determination regarding whether Sextons actions
could have impeded a Grand Jury that no longer sought Inmate Browns testimony.
Because the Writ had been withdrawn, Sextons actions likely had no consequence.
The Governments reliance on United States v. Rasheed, 663 F.2d 843 (9th
Cir. 1981), is misplaced. In Rasheed, the defendant destroyed documents of which
the prosecutors were unaware and subsequently received a notice that her
- 28 -
production duties under the Grand Jury subpoena had been satisfied. Id. at 853.
The Government focuses on the Rasheed courts statement that the offense had
been committed when the order to destroy documents was issued. Id.
As above, Sexton did not issue, but simply followed, lawfully-issued orders.
In addition, there is no evidence that Inmate Brown would have never been made
available to the Grand Jury upon request (unlike the documents that were
destroyed). An analysis of materiality under Section 1503 requires an analysis of
the charged conduct and the context in which [it was] made[.] Bonds, 784 F.3d
at 585 (9th Cir. 2015) (Konzinski, J. concurring) (citations omitted). Here, that
context shows a defendant following orders he believed to be lawful, regarding a
witness the Grand Jury ultimately never wanted to hear from. The evidence was
material.
The same analysis applies to United States v. Ladum, 141 F.3d 1328, 1339
(9th Cir. 1998). In Ladum, the defendant created false records that were never
presented to the Grand Jury. No similar facts occurred here.
Rather, Sexton was charged with keeping a witness from the Grand Jury
when the factshad the jury been allowed to hear themwould have shown that
the Grand Jury no longer wanted to hear from Inmate Brown. With a hung jury in
the first trial (when this evidence came in) and a conviction in the second (when
kept from the jury) this evidence is very probative and its exclusion was not
- 29 -
harmless. Macias, 789 F.3d at 1028; United States v. Thompson, 37 F.3d 450, 454
(9th Cir. 1994) (previous hung jury is persuasive evidence that the district courts
error affected the verdict).
Due to the District Courts exclusion of testimony regarding the Writs
withdrawal, the trier of fact was precluded from determining whether Sextons
actions had the natural and probable effect of impeding the Grand Jury. See ER32
([T]he government must prove that the defendants actions would have had the
natural and probable effect of interfering with the due administration of justice.).
Such an error was not harmless, particularly in light of the six-to-six hung jury in
the first trial (where the information was admitted) and the conviction in the
second trial (where the information was excluded).
The prejudicial error warrants a reversal and remand here.
- 30 -
VI.
CONCLUSION.
For the foregoing reasons, Appellant Sexton respectfully requests that this
Court reverse his conviction.

DATED:
May 20, 2016
PAUL HASTINGS LLP

By:
/s/
THOMAS P. OBRIEN
THOMAS P. OBRIEN (SB# 166369)

KATHRYN C. WANNER (SB# 269310)
PAUL HASTINGS LLP
515 South Flower Street
Twenty-Fifth Floor
Los Angeles, California 90071-2228
Telephone: 1(213) 683-6000
Facsimile: 1(213) 627-0705
James Sexton
- 31 -
CERTIFICATE OF COMPLIANCE
I certify that the attached Appellants Reply Brief uses a 14 point Times
New Roman font and contains 6,998 words, exclusive of the table of contents,
table of citations, addenda, and certificates of counsel, relying on the word count of
the computer program used to prepare Appellants Reply Brief.
DATED: May 20, 2016
PAUL HASTINGS LLP

515 South Flower Street
Twenty-Fifth Floor
Los Angeles, CA 90071-2228
THOMAS P. OBRIEN
KATHRYN C. WANNER
By:
/s/
Thomas P. OBrien

James Sexton
- 32 -
ADDENDUM OF RELEVANT CITED STATUTES

Federal Rule of Evidence 803(3) ............................................................ Addendum 1
Federal Rule of Criminal Procedure 52(a) ............................................. Addendum 2
- 33 -
Federal Rule of Evidence 803(3)

Rule 803(3). Exceptions to the Rule Against Hearsay--Regardless of Whether
the Declarant Is Available as a Witness.
The following are not excluded by the rule against hearsay, regardless of whether
the declarant is available as a witness:
...
(3) Then-Existing Mental, Emotional, or Physical Condition.A statement of the
declarant's then-existing state of mind (such as motive, intent, or plan) or
emotional, sensory, or physical condition (such as mental feeling, pain, or bodily
health), but not including a statement of memory or belief to prove the fact
remembered or believed unless it relates to the validity or terms of the declarant's
will.
ADDENDUM 1
- 34 -
Federal Rule of Criminal Procedure 52(a)

Rule 52(a). Harmless and Plain Error.
Any error, defect, irregularity, or variance that does not affect substantial rights
must be disregarded.
ADDENDUM 2
- 35 -
9th Circuit Case Number(s) 14-50583

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United States Court of Appeals for the Ninth Circuit by using the appellate CM/ECF system
on (date)
.
May 20, 2016
I certify that all participants in the case are registered CM/ECF users and that service will be
accomplished by the appellate CM/ECF system.
Signature (use "s/" format)
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.
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Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 1 of 41

Appeal No. 14-50583

THOMAS P. OBRIEN (SB# 166369)

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 2 of 41

INTRODUCTION AND FACTUAL SUMMARY .......................................1

THE DISTRICT COURT ERRED IN GIVING THE MIXED

Obstruction of Justice Requires a Predominantly Corrupt

Under the Fair Warning Doctrine and the Rule of Lenity,

THE DISTRICT COURT ALLOWED THE GOVERNMENT TO

Portions of Sextons Grand Jury Testimony Should Have Been

Selectively Editing Sextons Testimony was Not Harmless and

THE DISTRICT COURT SHOULD HAVE SUPPRESSED

The Government Objectively Knew Sexton Was a Target. ...........18

The USAM Explicitly Requires Prosecutors to Provide Target

Due Process Requires Federal Courts to Exercise Supervisory

THE DISTRICT COURT ERRED IN EXCLUDING TESTIMONY

Evidence of the Writs Withdrawal Was Permitted During the

The Trial Court Erred in Excluding Evidence Related to the

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 3 of 41

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 4 of 41

United States v. Jacobs,

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 5 of 41

United States v. Santos,

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 6 of 41

INTRODUCTION AND FACTUAL SUMMARY

should be affirmed because Appellant James Sexton confessed. The Government

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 7 of 41

hands of an inmate is exceptionally dangerous, as it can be used in a variety of

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 8 of 41

another tragedy. It led to the prosecution and ultimate conviction of a junior

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 9 of 41

THE DISTRICT COURT ERRED IN GIVING THE MIXED

providing a mixed motive instruction. See AOB31-43. Properly construed, 18

Obstruction of Justice Requires a Predominantly Corrupt

The Government first attempts to recast this Courts decision in United

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 10 of 41

In Banks, this Court discussed the elements required for a conviction

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 11 of 41

The courts mixed motive or more than merely incidental instruction

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 12 of 41

Under the Fair Warning Doctrine and the Rule of Lenity,

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 13 of 41

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 14 of 41

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 15 of 41

The Government tries to bolster its argument by citing a string of cases in

THE DISTRICT COURT ALLOWED THE GOVERNMENT TO

Portions of Sextons Grand Jury Testimony Should Have Been

As Sexton explained in his opening brief, the District Court incorrectly

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 16 of 41

at that time, of any other part or any other writing or

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 17 of 41

In his opening brief, Sexton identified exemplars of his Grand Jury

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 18 of 41

Relevance of the Omitted Statement

Prior to the meeting a cellphone was

The statement shows Sextons state of

Case: 14-50583, 05/20/2016, ID: 9984665, DktEntry: 48, Page 19 of 41

Relevance of the Omitted Statement