Ninth Circuit Affirms Conviction of Former Undersheriff Paul Tanaka

Friday, September 1, 2017

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Ninth Circuit Affirms Conviction of Former Undersheriff Paul Tanaka

Rejects Contention Jury Was Prejudiced by References to His Membership in A ‘Gang’ of Lawless Deputies Who Committed Civil Rights Violations

By a MetNews Staff Writer

—AP

In this 2012 photo, Paul Tanaka prepares to testify in front of the Citizens Commission on Jail Violence.

The Ninth U.S. Court of Appeals yesterday upheld a jury’s conviction of former Los Angeles County Undersheriff Paul Tanaka for obstruction of justice and conspiracy to obstruct justice, rejecting his contention that he was prejudiced by references to his supposed membership in a lawless “gang” of deputies known as the Vikings while a sergeant stationed in Lynwood.

The appeal was spurned in a memorandum opinion signed by Judges Stephen Reinhardt, Alex Kozinski and Morgan Christen. Their memorandum says:

“Tanaka’s testimony on direct examination clearly opened the door to evidence impeaching his credibility….Tanaka testified extensively about his commitment to upholding the law and the core values of the Los Angeles Sheriff’s Department. He emphasized that he ‘had no tolerance for deputies who wore a badge and violated the law.’ Evidence of his involvement with the Vikings is relevant to assessing the veracity of these statements.”

Prosecutorial Misconduct

The opinion finds prosecutorial misconduct in connection with the closing argument, but says it does not warrant reversal. The prosecutor was then-Assistant U.S. Attorney Brandon Fox of the Central District of California, now in private practice.

The opinion declares:

“Tanaka maintains that he was prejudiced by the government’s questioning about the Vikings during cross-examination and by its closing argument that began with reference to Tanaka’s membership in a ‘deputy gang.’ On the basis of the record in this case, the questions were clearly asked in good faith. The prosecutor’s reference to the Vikings as a gang in the closing argument, however, was error, although not plain error; nor did it amount to a denial of due process.

“Although we find no plain error, we disapprove of the prosecutor’s use of the term ‘deputy gang’ to introduce its closing argument, given that Tanaka did not admit that he was a member of a sheriffs gang and the prosecution did not offer admissible evidence that such a gang existed.”

Last Year’s Sentence

Tanaka was sentenced last year to five years in prison and is presently incarcerated in Colorado. The convictions stem from his leading an effort to thwart an FBI investigation into jail conditions.

During oral argument in Pasadena on Aug. 7, Tanaka’s lawyer, Charles M. Sevilla, a former state chief deputy public defender, told the judges:

“The government went to extraordinary lengths in cross-examining Mr. Tanaka, while he was on the stand, by alleging multiple times that he was a member, associate of a gang of lawless deputies that operated out of the Lynwood substation in Los Angeles.”

He said the “gang” was portrayed as being engaged in “civil rights violations and other lawless conduct.”

Tanaka’s Tattoo

There was discussion of a Vikings tattoo on Tanaka’s ankle.

“He had tattoo, for crying out loud,” Kozinski exclaimed.

Sevilla insisted that a viking was merely the “mascot” of the station, and that other stations also had mascots, displayed in intermural sport competitions.

He said that a judge’s findings of misconduct on the part of the Vikings were “hammered into” the jury, notwithstanding that they were reversed by the Ninth Circuit.

Assistant U.S. Attorney Bram Alden said that what was “relevant” was that after the judge made his findings, Tanaka’s “reaction was to keep the tattoo from that gang.”

Bram acknowledged that the prosecutor’s use of the word “gang” might have been “inappropriate and convenient.” Reinhardt commented:

“I really found that offensive.”