Argued and Submitted, San Francisco, California April 18, 2013
Filed August 14, 2013
Appeal from the United States District Court for the Eastern District of California. D.C. No. 1:08-cr-00224-OWW-11, D.C. No. 1:08-cr-00224-OWW-12. Oliver W. Wanger, Senior District Judge, Presiding.
John Balazs, Sacramento, CA, argued the cause and filed a brief for defendant-appellant Gary L. Ermoian.
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 by Judge O'Scannlain.
O'SCANNLAIN, Circuit Judge:
We must decide whether an FBI investigation qualifies as an " official proceeding" under a federal statute criminalizing obstruction of justice.
The facts of this case read like an episode of the fictional television drama Sons of Anarchy . 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 tat the Hells Angels motorcycle gang was attempting to establish a chapter in Modesto, California. 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, 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
only." But in actuality, the information in the bulletin was " watered down" to avoid leaks of sensitive information that could truly jeopardize the CVGIT's investigation into the Holloways and Road Dog Cycle. In substance, the bulletin described surveillance of the annual summer " Burn-Out Party" held at Road Dog Cycle and named the different outlaw motorcycle gangs seen in attendance. After circulating the bulletin, the CVGIT monitored wiretaps it had placed on Robert's phones, hoping to ensnare the law enforcement officers leaking information.
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. Swanson--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 ...