Sunday, August 18, 2013

Case o' The Week: The Ninth Gets Cable, Too -- Ermoian and Obstruction of Justice

“The facts of this case read like an episode of the fictional television
drama Sons of Anarchy.” United States v. Ermoian, 2013 WL 4082072 (9th Cir. Aug. 14, 2013), *1, decision available here.

A great teaser opening, for a great Ninth decision.

Players: Decision by Judge O’Scannlain, joined by Judges Goodwin and N.R. Smith. Big win by former ED Cal AFPD John Balazs and others.

Facts: Federally-funded cops were investigating a motorcycle shop with suspected Hells Angel affiliations. Id. at *1. The cops suspected internal leaks, so they released a watered-down bulletin about some surveillance. Id. David Johnson – a Deputy Sheriff and bailiff – took the bait, and called Gary Ermoian – a private investigator. Deputy Johnson warned Ermoian that he had seen some of the surveillance photos and told Ermoian to advice a target to “watch his back.” Id. Wiretaps then picked up a “flurry of activity” as the various targets were warned of and reacted to the tip. Id. Ultimately, twelve defendants were indicted for RICO and other offenses. Id. at *3. Johnson and Ermoian were indicted on charges of conspiracy to obstruct justice, in violation of 18 USC § 1512(c)(2). At every opportunity before and during the trial Johnson and Ermoian objected that the FBI investigation did not qualify as an “official proceeding” under the obstruction statute. Id. Those challenges were denied, the jury convicted, and the defendants appealed.

Issue(s): “We must decide whether an FBI investigation qualifies as an ‘official proceeding’ under a federal statute criminalizing obstruction of justice.” Id. at *1. The defendants “primarily focus on one issue: Did the district court err when it determined that an FBI investigation qualifies as an ‘official proceeding’ under the statute criminalizing obstruction of justice?” Id. at *3.

Held: “[I]n light of the plain meaning of the term ‘proceeding,’ its use in the grammatical context of the ‘official proceeding’ definition, and the broader statutory context, we conclude that a criminal investigation is not an ‘official proceeding’ under the obstruction of justice statute.Id. at *7.

Of Note: In a case of first impression, Judge O’Scannlain brings the Ninth onto the right side of a circuit split. Id. at *6-*7 (rejecting Second Circuit analysis as unpersuasive, and adopting the approach of the Fifth Circuit). Will the Supremes resolve this split? If so, Justice Scalia will hopefully note Judge O’Scannlain’s shout-out for Reading Law: The Interpretation of Legal Texts. Justice Scalia’s book, explains the Ninth, “aptly explains” the principle of statutory interpretation used to get to the result in Ermoian. Id. at *5. Like Justice Scalia, Judge O’Scannlain isn’t too keen on the Congressional record: because the meaning of the statute is “plain and unambiguous” he “decline[s] the Government’s invitation to consult the statute’s legislative history.” Id. at *7 & n.6; id. at *6 (rejecting Second Circuit’s reliance on Congressional “purpose”).  

How to Use: Ermoian is an interesting statutory construction case, because the word at issue in the obstruction statute – “proceeding” – has both a lay definition and a legal definition. Id. at *4. The lay definition is broad enough to encompass an “investigation” (which would have meant a government win), but Judge O’Scannlain holds that the more-narrow legal definition controls because of the context of the word in the statute. Id. at *5. Add Ermoian to the arsenal of statutory interpretation cases for the proposition that a common lay definition may not necessarily carry the interpretative day.
For Further Reading:  It was a most-eventful week, for CJA funding. 
   CJA Lawyer Rep Rob Ruth has posted on his blog a recent email of Judge Catherine Blake, Chair of the Defender Services Committee of the Judicial Conference. See blog here. In her email Judge Blake describes last week’s decision of the Executive Committee, including a $15 per hour cut to the CJA rate and four weeks deferral of CJA payments in Fiscal 2014. 
  For a thoughtful overview of the impact of this decision for both siblings in the CJA family, see a Tampa Tribune article here.

Steven Kalar, Federal Public Defender ND Cal. Website at


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