Metropolitan News-Enterprise


Tuesday, February 12, 2019


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Ninth Circuit Affirms Convictions of Former Sheriff Leroy D. Baca


By a MetNews Staff Writer



In this 2014 file photo, then-Sheriff Lee Baca announces his unexpected retirement.


The Ninth U.S. Circuit Court of Appeals yesterday affirmed the convictions of former Los Angeles County Sheriff Leroy D. Baca on charges of conspiracy, obstruction of justice, and making a false statement in the course of his turf war with the FBI over its investigation of conditions in the jails he oversaw, with Baca insisting that federal authorities utilized illegal tactics.

The ex-sheriff’s various contentions were rejected in a memorandum opinion by a three-judge panel comprised of Circuit Judges Andrew D. Hurwitz and Johnnie B. Rawlinson, joined by District Court Judge Stephen R. Bough of the Western District of Missouri. Rawlinson concurred in the result.

Affirmance was widely anticipated based on antagonistic questioning of Baca’s attorney, Benjamin L. Coleman, at oral argument in Pasadena on Nov. 6.

Smuggled Cell Phone

The prosecution was in response to Baca’s actions in 2011 after he learned that federal authorities bribed a sheriff’s deputy who smuggled a cell phone—in violation of jail rules—to an inmate who was serving as an FBI informant with respect to jail conditions. The informant was moved from jail to jail to prevent the FBI from having contact with him.

In an interview with FBI agents, the then-sheriff made false statements.

Baca, who served as sheriff from Dec. 7, 1998 until his resignation on Jan. 31, 2014, faces a sentence of three years in prison, though the prospect exists of en banc review by the Ninth Circuit or a pardon from President Donald Trump. The president on Aug. 25, 2017 pardoned former Maricopa County, Arizona Sheriff Joe Arpaio, who had been  convicted of criminal contempt.

Expert Testimony Barred

Baca contended on appeal that District Court Judge Percy Anderson of the Central District of California prejudicially erred in excluding expert testimony by a medical doctor, James Spar, that Baca was in the early stages of Alzheimer’s Disease in 2014 when he gave false statements to federal investigators. The opinion responds:

“The district court did not abuse its discretion in rejecting Dr. Spar’s testimony as unreliable given his speculation about whether Baca suffered from cognitive impairments when making his false statements, and, if so, how those impairments affected his answers.”

Anderson also barred the testimony under Federal Rules of Evidence, rule 403, which provides:

“The court may exclude relevant evidence if its probative value is substantially outweighed by a danger of one or more of the following: unfair prejudice, confusing the issues, misleading the jury, undue delay, wasting time, or needlessly presenting cumulative evidence.”

The opinion declares:

“The district court also did not abuse its discretion in excluding this testimony under Rule 403 given its probative value in relation to the risk of jury confusion.”

It adds:

“Nor did exclusion of this evidence deny Baca his constitutional right to present a defense.”

Federal Law-Breaking

Jurors at the 2016 trial heard testimony from Cecil Rhambo, a retired assistant sheriff, that he warned Baca not to lock horns with federal authorities. However, Anderson blocked jurors from learning of Baca’s retort that the FBI was operating unlawfully.

“Even assuming arguendo that the district court erred in excluding this testimony, Baca has failed to demonstrate that any error affected his substantial rights…,” the opinion says. “Baca introduced evidence of similar instances where he told others that he believed federal authorities had broken the law during then investigation.”

The opinion continues:

“He was therefore able to argue to the jury in closing that it was this belief, and not an intent to obstruct justice, which motivated his actions.”

Prosecutorial Misconduct

The panel saw no basis for reversal based on prosecutorial misconduct by then-Assistant U.S. Atty. Brandon Fox.

“[A]lthough we do not condone the government’s decision to reference Baca’s counsel by name and accuse him personally of distorting the evidence or attempting to mislead the jury,” the opinion says, “we conclude that this line of argument did not materially affect the verdict.”

The opinion also says that Anderson:

Did not err in empaneling an anonymous jury “in light of the highly publicized nature of this case”;

Properly rejected a double-jeopardy contention grounded on Anderson declaring a mistrial when the first trial ended with a hung jury;

Did not fail to apprise jurors that certain witnesses cooperating with the prosecution were seeking leniency with respect to charges against them.

On Feb. 10, 2016, Baca pled guilty to one count of making a false statement in connection with his role in the hiding of the informant; he withdrew the plea on Aug. 1 of that year after District Court Judge Percy Anderson of the Central District of California rejected the proposal of the Office of U.S. Attorney that Baca be sentenced to a term of no more than six months; his first trial ended in a hung jury, with its vote being 11-1 in his favor.

He was retried, with charges added, and a verdict for the prosecution came on March 15, 2017. Anderson on May 12, 2017, sentenced Baca to three years in prison.

Anderson wanted him incarcerated pending appeal, but the Ninth Circuit on Oct. 18, 2017 granted Baca’s motion to remain free on bail, saying:

“Baca has clearly and convincingly shown that he is not likely to flee or to pose a danger to the safety of any other person or the community if released, and the parties do not dispute this finding.”

Financial resources of Baca and his wife, Carol Chiang, are reported depleted as the result of their payment of attorney fees.


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