NOT FOR PUBLICATION FILED
AUG 31 2017
UNITED STATES COURT OF APPEALS
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50233
Plaintiff-Appellee, D.C. No. 2:15-cr-00255-PA-1
v.
MEMORANDUM*
PAUL TANAKA,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted August 7, 2017
Pasadena, California
Before: REINHARDT, KOZINSKI, and CHRISTEN, Circuit Judges.
Former Undersheriff Tanaka appeals his convictions for obstruction of
justice and conspiracy to obstruct justice in violation of 18 U.S.C. § 1503(a) and 18
U.S.C. § 371.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
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1. Tanaka argues that the admission of evidence that he was involved in
a “deputy clique” or “deputy gang” called the Vikings denied him a fair trial.
Shortly after Tanaka was cross-examined about his Vikings affiliation, and again
following closing arguments, the district court admonished the jury that it could
only consider “[t]he Vikings-related testimony . . . for its bearing, if any, on the
question of the defendant’s intent and credibility and for no other purpose.”
Tanaka objected at trial and now argues on appeal that the Vikings evidence
is inadmissible under Federal Rule of Evidence 403 because it is irrelevant and any
probative value is substantially outweighed by the risk of unfair prejudice. We
reject this argument.
Tanaka’s testimony on direct examination clearly opened the door to
evidence impeaching his credibility. See Brown v. United States, 356 U.S. 148,
154–55 (1958); United States v. Mendoza-Prado, 314 F.3d 1099, 1105 (9th Cir.
2002). 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.
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In his briefs on appeal, Tanaka does not specifically argue that Federal Rule
of Evidence 404(b) prohibited the admission of Vikings evidence. See United
States v. Romm, 455 F.3d 990, 997 (9th Cir. 2006) (“[A]rguments not raised by a
party in its opening brief are deemed waived.” (citation omitted)).
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 sheriff’s gang and the prosecution did not
offer admissible evidence that such a gang existed.
2. Tanaka did not contemporaneously object to the introduction at trial
of evidence of historic civil rights abuses in Los Angeles County jails. Nor does he
explain how admission of this evidence “affect[ed his] substantial rights” or
“seriously affect[ed] the fairness, integrity, or public reputation of judicial
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proceedings.” United States v. Blinkinsop, 606 F.3d 1110, 1114 n.2 (9th Cir. 2010).
We therefore cannot find plain error.
3. Tanaka did not demonstrate that Sheriff Baca’s testimony would have
“directly contradicted” that of immunized government witness Deputy Mickey
Manzo, nor that the denial of immunity would so distort the fact-finding process as
to deprive Tanaka of his right to a fair trial. United States v. Straub, 538 F.3d 1147,
1156 (9th Cir. 2008).
4. The dual-purpose jury instruction Tanaka objects to was upheld in
United States v. Smith, 831 F.3d 1207 (9th Cir. 2016), the case that affirmed the
convictions of Tanaka’s alleged coconspirators. Id. at 1217-19. In Smith, this court
also affirmed the rejection of instructions nearly identical to the public authority
and obstruction instructions that Tanaka now argues he was entitled to. Id. at 1219-
21. Tanaka cannot meaningfully distinguish his case from our precedent. We find
no abuse of discretion.
AFFIRMED.
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