The Only Appropriate Course for Baca’s Prosecutors: Move for Dismissal

Tuesday, July 26, 2016

Page 8

EDITORIAL

The Only Appropriate Course for Baca’s Prosecutors: Move for Dismissal

OR THE FEDERAL GOVERNMENT to persist in its prosecution of former Sheriff Leroy D. Baca, in light of a recent development, would be indefensible. It should move, under §48(a) of the Federal Rules of Criminal Procedure, for leave of the court to dismiss.

The granting of such leave, where the defendant consents, is either mandatory (it’s not clear) or is, at the minimum, quite near to being so.

The reason the government should so act is that the U.S. district judge presiding over the case, Percy Anderson of the Central District of California, has announced his desire to impose a sentence on Baca that would be, according to the government’s own pronouncements, in excess of what would meet the demands of justice.

Either the government will seek dismissal or it will become an accomplice, through a failure to act, to what it realizes would be excessive sentencing.

ACA PLED GUILTY IN FEBRUARY, pursuant to a plea bargain with the Office of U.S. Attorney for the Central District of California. Subject to court approval, he would receive a sentence of anywhere from no days of incarceration to six months. In light of Baca’s lack of criminal history and other factors, such a recommended sentence was in conformity with federal guidelines. Baca’s lawyer argued in a position paper that his client should be sentenced to zero days; an assistant U.S. attorney asserted he should get the full six months.

Given that Baca is a first offender—and in light of the relative lack of seriousness of the offense and his record of service to the public as sheriff, going far beyond the duties the job entails—zero days surely would have been the appropriate disposition. This is without even factoring in Baca’s age—74—the fact that he is in the early stages of Alzheimer’s Disease, and the obvious likelihood of physical attacks on the former lawman by other inmates should he be sent to a prison.

Yet, Anderson, a judge known neither for compassion nor judgment, on July 18 scuttled the deal, proclaiming that so short a sentence as six months “would trivialize the seriousness of the offenses.” Note that Anderson spoke of “offenses,” in the plural. Baca pled guilty to a single count of violating 18 U.S.C. §1001, making false statements to the federal government.

The judge proclaimed that Baca had been “involved in a wide-ranging conspiracy to cover up abuse and corruption.” Hold on. He was charged with no such involvement. The prosecution’s allegation is that, in the course of a five-hour interview at his lawyer’s office, Baca falsely denied (not under oath) 1.) that he participated in a discussion as to blocking FBI access to an inmate who had been acting as an informant as to jail conditions; 2.) that he was aware that FBI agents were prevented from completing an interview with the informant; and 3.) that he knew, in advance, of his department’s effort to discourage an FBI special agent from continuing in her present course. That’s the totality of the misconduct to which Baca has admitted, or which has been alleged. No participation in a cover-up has emerged.

As sheriff, Baca was not averse to a probe of jail conditions that had come to light; it’s just that he wanted to put his own house in order and resented what he regarded, correctly or not, as an intrusion by the FBI and sneakiness on its part in having an informant in the Central Jail without his knowledge.

His department’s assertion of its control over the county jails by thwarting FBI access to the informant amounted to a turf war, and the propriety of Baca not countermanding the action is debatable. That he authorized deputies to approach the FBI special agent in charge of the investigation, and do all but put handcuffs on her, appears, from media accounts, as bizarre—but the fact is that the FBI did violate a prohibition on providing a cell phone to an inmate (and bribed a sheriff’s deputy in the course of accomplishing this). There was a reasonable basis for getting the special agent’s attention.

No one, including Baca, denies that it was wrong to have uttered the three false statements during the course of the interview. Criminal liability for those particular statements is all that is in issue in the case. For Anderson to link Baca, as he did in his July 18 harangue from the bench, to “fostering an us-versus-them mentality and unwritten codes that taught deputies that when an inmate dared attempt to harm a deputy, deputies would respond with enough violence to send that inmate to the hospital” was lacking in factual support and is reflective of the judge’s shoot-from-the-hip mentality.

ROM HIS VARIOUS COMMENTS, it is clear that Anderson wants to make an example of Baca based largely on misdeeds of others in which the former sheriff is not known to have had complicity. Anderson appears to lack conversancy with some basic constitutional precepts.

The maximum term of imprisonment under 18 U.S.C. §1001(a)(3) is five years, a term intended for the worst of malefactors. One does not need to be psychic to discern that imposition of the maximum term—in defiance of the sentencing guidelines and common notions of fairness and justness—is what Anderson has in mind for Baca.

Baca will be back in court Monday. As it stands, he will either withdraw his plea (which seems probable if not certain) or submit to such punishment as Anderson sees fit to inflict. An alternative to that scenario is the government asking for a dismissal.

HE PROSECUTORS’ OWN WORDS, in their initial sentencing brief, point to their duty to thwart Anderson in his quest to vanquish the former sheriff.

Their position paper, signed by Assistant U.S. Attorney Brandon D. Fox, declares:

“The agreement and the six-month sentence are appropriate after taking into account all sides of defendant Baca, including his crime, his current health, and his likely prognosis.”

In particular, Fox asserts that “a sentence that causes defendant to serve time in custody while his condition materially deteriorates would not be in the interests of justice” while a “short term of imprisonment” would be. Emphasis added.

The prosecutors, though having acknowledged that a longer prison term than they sought would not serve the interests of justice, could argue that letting Baca off with no time behind bars would also not serve those interests. Deciding whether to seek dismissal would entail weighing 1.) their disappointment in not gaining any sentence with 2.) the patent cruelty (should there ultimately be a conviction) of subjecting an old man with withering mental faculties, who for 50 years conscientiously served the populace of this county, to years of imprisonment for fibbing in an interview.

Only by moving for dismissal—thus, with near certainty, barring the judge from potentially committing his misdeed—would the prosecution’s actions be in conformity with the “interests of justice.”

S OF THE TIME OF THE FILING of Fox’s position paper last month, seven members of the department had been sentenced for misdeeds relating to jail conditions, with sentences ranging from 1.5 years to 3.4 years. Subsequently, Anderson sentenced former Undersheriff Paul Tanaka to five years in prison. Former Captain William “Tom” Carey, who pled guilty to perjury, is scheduled to be sentenced Monday.

Comparing Baca to the seven who had been sentenced in connection with jailhouse brutality, Fox’s position paper says:

There are plenty of reasons why a sentencing disparity is warranted here. First, defendant Baca accepted responsibility and pled guilty while the others (besides Carey, who has not been sentenced) all went to trial. Second, Baca’s involvement in the obstruction is not as clear as that of the others. He pled guilty to willfully making false statements, which was the most readily provable offense. Given the intelligence of many of the others who were convicted, the likely reason for the difference in quality and quantity of evidence is not that Baca was more cunning. Instead, it appears that his involvement may have been more limited than the others. Third, and relatedly, Baca’s Sentencing Guidelines range for violating 18 U.S.C. § 1001 is zero-to-six months, which is a much lower range than the others who were convicted. Fourth, Baca’s age, diagnosis and prognosis are very different than any other defendant who came before this Court in these related cases.

The paper adds:

Any disparity between Baca and those convicted of and sentenced for abusing inmates and filing false reports is warranted. Unlike those defendants, Baca was not involved in physically abusing individuals who were handcuffed, shackled, and/or mentally ill. He did not try to cause the victims to be prosecuted for offenses they did not commit. The Guidelines ranges for these defendants were also much higher than Baca’s Guidelines range.

Fox also contrasts Baca’s involvement with that of Tanaka:

•While Baca cannot be entirely absolved for the culture of abuse and misconduct over the years, Tanaka’s conduct actively fostered it.

•During the obstructive conduct, records show Baca was rarely in contact with any of those involved in the obstruction, with the exception of Tanaka. Tanaka himself was routinely in contact with the others.

•Tanaka was extremely angry when the FBI was able to interview Anthony Brown [an FBI informant in the Central Jail]. When Baca learned the FBI had interviewed Brown, he did not act concerned.

•Tanaka was present at Men’s Central Jail when his co-conspirators tampered with witnesses. Baca was not there and no evidence to date shows Baca was told what happened.

Fox notes that former Deputy Gilbert Michel, who admitted beating prisoners, was not charged in connection with that. Rather, he was allowed to plead guilty only to accepting a bribe from a federal undercover agent (he took $1,500 in exchange for smuggling the cell phone into the jail) and was sentenced by Anderson to six months.

The assistant U.S. attorney notes that Michel cooperated with federal authorities, including testifying at the trials of Tanaka and a lieutenant, and comments:

“[T]here are different aggravating and mitigating circumstances when comparing Michel to Baca. In some ways, balancing all the factors shows a sentence similar to the one the Court imposed on Michel is warranted.”

T THE OUTSET, the Office of U.S. Attorney had discretion whether or not to prosecute Baca (which, in our opinion, it should not have). It would now be an indiscretion, as we see it, to fail to move for dismissal.

A 1977 U.S. Supreme Court decision, in Rinaldi v. U. S., discusses Rule 48(a) which provides, in relevant part:

“The government may, with leave of court, dismiss an indictment, information, or complaint.”

The opinion says in a footnote:

The words “leave of court” were inserted in Rule 48(a) without explanation. While they obviously vest some discretion in the court, the circumstances in which that discretion may properly be exercised have not been delineated by this Court. The principal object of the “leave of court” requirement is apparently to protect a defendant against prosecutorial harassment, e. g., charging, dismissing, and recharging, when the Government moves to dismiss an indictment over the defendant’s objection….But the Rule has also been held to permit the court to deny a Government dismissal motion to which the defendant has consented if the motion is prompted by considerations clearly contrary to the public interest….It is unnecessary to decide whether the court has discretion under these circumstances, since, even assuming it does, the result in this case remains the same.

The Ninth Circuit’s position is stated in the 1995 case of U.S. v. Gonzales. The opinion says:

“Indeed, in the category of cases in which the defendant consents to the prosecution’s request, there is a question as to whether a district court may ever deny an uncontested Rule 48(a) motion….The only appellate court [the Fifth District] that has decided the question has held that a district court may deny an uncontested request only “in extremely limited circumstances in extraordinary cases...when the prosecutor’s actions clearly indicate a ‘betrayal of the public interest.’ ”…

“We adopt a similar approach here….

“[I]f the district judge had any discretion at all, it was only to deny a request that was clearly contrary to the manifest public interest.”

So, if a district judge possesses any discretion, at all, to rebuff a motion by prosecutors to dismiss a criminal case, with consent of the defendant, that discretion is so narrow as to preclude Anderson—should he elect to operate within the confines of his legal authority—from denying a prosecution motion to dismiss the action against Baca.

HOULD U.S. ATTORNEY Eileen M. Decker of the Central District of California and her staff do the right thing, and move to dismiss, howls might well be heard in bars and barbershops and on call-in radio shows that there’s an inequity in the ex-undersheriff being sentenced to five years in prison while the former top man in the office goes free. Such utterances would come from persons oblivious to the disparity in the blameworthiness of Tanaka and Baca.

Decker et al. surely are obliged to act not in response to cries of the uninformed, but to the dictates of justice. Their office is on record as saying that the interests of justice compel a sentencing of Baca to no more than six months of incarceration.

That will not occur if Anderson is allowed to sentence. Decker has the power and, as we see it, the duty, to move for a dismissal, and thus foreclose the prospect of Baca becoming the victim of this callous and impulsive jurist.