Federal Investigation Tip-Off Didn’t Obstruct Justice

     (CN) – The 9th Circuit invoked the hit FX show “Sons of Anarchy” to reverse convictions against men who tipped off an outlaw motorcycle club about a pending federal investigation.
     Like the cable TV show, the events at issue here occurred in California’s Central Valley.
     FBI agent Nathan Elias had headed the Central Valley Gang Impact Task Force’s plan in 2006 to stop a chapter of the Hell’s Angels from forming in Modesto.
     The investigation focused on two known associates of the gang, Robert Holloway and his son Brent, who co-owned Road Dog Cycle Shop, which was suspected of dealing in stolen motorcycles and parts.
     Before the investigation could get moving, however, the task force had to plug leaks from law enforcement personnel suspected of relaying information to the Holloways.
     While secretly tapping Robert’s pone, the task force published a “Gang Intelligence Bulletin” that purported to contain confidential information intended only for law-enforcement personnel. In reality, however, the bulletin contained watered-down information that would not jeopardize the investigation if leaked.
     Shortly after the bulletin was published, county court bailiff David Swanson called Robert Holloway’s friend Gary Ermoian and said Robert should “watch his back.”
     Ermoian relayed this information to Robert and said he should “take a look around the shop to see if you see anything.”
     Stephen Johnson ran a business that subcontracted with law enforcement to perform canine sniff searches. He told Robert and Ermoian that he “overheard” that the Road Dog shop would be the target of impending joint investigation by the Bureau of Alcohol, Tobacco and Firearms and the Department of Justice.
     A federal grand jury indicted 12 defendants associated with Road Dog in 2009. Swanson was acquitted of obstruction of justice, but Ermoian and Johnson were convicted.
     They appealed, arguing that the FBI investigation was not an “official proceeding” under the federal obstruction of justice statute.
     Noting that “the facts of this case read like an episode of the fictional television drama ‘Sons of Anarchy,'” the 9th Circuit vacated the men’s convictions Wednesday.
     “The overall tenor of the definitions associated with the legal usage of ‘proceeding’ supports the notion that a mere criminal investigation does not qualify as one,” Judge Diarmuid O’Scannlain wrote for a three-member panel.
     “‘Proceeding’ is a word much used to express the business done in courts and is an act done by the authority or direction of the court, express or implied,” he added. “Indeed, in listing the various actions that might qualify as a proceeding, in law the earliest ancillary or provisional step adjudged to qualify as such was an arrest, which – of course – would occur after the criminal investigation had already been completed.”
     Both defendants should be acquitted on remand and “retrial must also be barred,” the 17-page ruling states. (The court amended the opinion on Aug. 28 to say that Johnson must be resentenced.)

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