Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 1 of 16

Nos. 14-50440, 14-50441, 14-50442, 14-50446, 14-50449, 14-50455

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,
v.
STEPHEN LEAVINS,
Defendant-Appellant.

Appeal from the United States District Court

for the Central District of California
Honorable Percy Anderson, Judge Presiding

APPELLANT LEAVINSS SUPPLEMENTAL REPLY BRIEF

TODD W. BURNS
Burns & Cohan, Attorneys at Law
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 236-0244
Attorney for Defendant-Appellant

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 2 of 16

TABLE OF CONTENTS
Page
TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
ERRONEOUS APPLICATION OF AGGRAVATING ROLE
ADJUSTMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
CERTIFICATE OF RELATED CASES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
CERTIFICATE OF COMPLIANCE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
CERTIFICATE OF SERVICE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 3 of 16

TABLE OF AUTHORITIES

Page
FEDERAL CASES
United States v. Avila,
95 F.3d 887 (9th Cir.1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
United States v. Washington Power Water Co.,
793 F.2d 1079 (9th Cir. 1986) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

ADVISORY GUIDELINES
U.S.S.G. 3B1.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

ii

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 4 of 16

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
STEPHEN LEAVINS,
Defendant-Appellant.

)
)
)
)
)
)
)
)
)
)

No. 14-50455
D.C. No. 2:90-cr-0652-SVW
Central District of California,
Los Angeles

ERRONEOUS APPLICATION OF
AGGRAVATING ROLE ADJUSTMENT
In his supplemental opening brief, Stephen Leavins challenged the district
courts erroneous application of a Sentencing Guidelines aggravating role adjustment
under U.S.S.G. 3B1.1(a). In the district court, the government made four claims to
support its assertion that this adjustment applies because Leavins had decisionmaking authority, and exercised control over others, with respect to the criminal
activity in this case. The district court adopted those claims verbatim when finding
that the adjustment applied. See Leavins Supplement Opening Brief (LSOB) 6-7.
Thus, in his supplemental brief Leavins focused on the inadequacy of those claims.
On appeal, the government has taken a more scattershot approach, making
several claims over two pages of its brief without explaining how those claims support

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 5 of 16

application of 3B1.1(a). Leavins responds below by addressing, nearly sentence-bysentence, the nine claims that the government makes in its answering brief. In
considering those claims, it is important to keep in mind that the relevant question is
whether Leavins (1) had decision-making authority and (2) exercised control over
others involved in the criminal activity. See United States v. Avila, 95 F.3d 887,
890-91 & n.6 (9th Cir.1996). The criminal activity alleged in this case is obstructing
a grand jury proceeding. Thus, to support the adjustment the government must show
that Leavins exercised decision-making authority or control over others in an effort
to obstruct a grand jury proceeding.
1. The government first writes that the adjustment was warranted because
Leavins oversaw the investigation of the cell phone found in Browns possession.
Government Answering Brief (GAB) 273 (citing ER-4 1293-94). In the portion of the
record cited by the government, Los Angeles Sheriffs Department (LASD) Captain
William Carey testified that at an August 20, 2011 meeting at LASD Headquarters,
Sheriff Baca ordered the Internal Criminal Investigations Bureau (ICIB) to investigate
the facts related to a cell phone being smuggled to Anthony Brown in the central jail.
Captain Carey said that he subsequently ordered Leavins to oversee that investigation.
See ER-4 1288-94.
The government does not explain how Leavinss being assigned to investigate
the smuggling of the cell phone into the jail supports the finding that he exercised
2

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 6 of 16

decision-making authority and control over others with respect to an effort to obstruct
a grand jury proceeding. After all, he did not assign himself to conduct that
investigation, and there was nothing unlawful about the LASD investigating how a
cell phone was smuggled into an LASD jail indeed, it would have been grossly
incompetent for the LASD not to investigate.
2. The government next states that Smith and Manzo reported to Leavins in
connection with their investigation. GAB 273. For this claim, the government relies
on the presentence report, presumably because it can find no trial record cite as
support. Even if Smith and Manzo (who were assigned to a different unit than
Leavins) did report to Leavins in some respect, that does not show that Leavins
exercised control over them in an endeavor to obstruct a grand jury proceeding. The
government does not even make an argument to the contrary.
3. Next the government writes that [i]n an interview of Brown on August 21,
2011, Smith explicitly twice referred to Leavins as his boss. GAB 273 (citing
ER-7 1951). The government cites the transcript of the first interview of Brown at
which Leavins was present, at the outset of which Smith referred to Leavins as his
boss. While Smith was not part of ICIB, there is no doubt that Leavins outranked
Smith, and that Leavins was assigned to oversee the investigation into the cell phone.
In that sense it was accurate for Smith to refer to Leavins as his boss. But, again, that
does not indicate that Leavins had any decision-making authority, or exercised any
3

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 7 of 16

control over Smith, with respect to an effort to obstruct a grand jury proceeding. Nor
does the government provide any argument to the contrary.
4. The government next writes, On August 23, 2011, Leavins decided to move
Brown so nobody c[ould] get to him. GAB 273 (quoting ER-3 958). The
government supports this claim with a cite to a portion of Leavinss grand jury
testimony that the government read at trial, in which Leavins said:
It was my decision to move him. I didnt care whether they changed his
name or not. I needed him moved out of Central Jail. I didnt care if
they changed his name or not. They could leave keep the same name.
They could keep his same booking number. I could care less. On the
computer you keep him at Central Jail, but you relocate him somewhere
else, a station jail, or wherever else so nobody can get to him.
ER-3 957-58.
As the trial evidence showed, it was not actually Leavinss decision to move
Brown. Instead, that was a decision for which he sought approval from his superiors,
and it was Sheriff Baca that gave the order to do so. See ER-4 1304-06; ER-5 146065. Accordingly, Leavins did not exercise decision-making authority in that regard.
Furthermore, Leavins testified at trial that his reason for requesting that Brown
be moved was so that Brown would be safe from potential reprisals by deputies at the
Mens Central Jail about whom Brown had made abuse accusations. See ER-5 145966. That is, Leavinss intent in requesting approval to move Brown was to protect
Brown, not to obstruct a grand jury proceeding. During the sentencing proceedings,

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 8 of 16

the district court rejected the governments claim that Leavins lied about this point
during trial. See ER-1B 522A. Thus, the preponderance of the evidence indicates that
Leavins did not move Brown to obstruct a grand jury proceeding. And that means that
even if the decision to move Brown had been Leavinss, that decision cannot be
considered part of the criminal activity in this case, and thus cannot support
application of 3B1.1(a). This point was made in Leavinss supplemental opening
brief. See LSOB 11-12. The government responded in a footnote, stating that [t]he
district courts refusal to impose a sentencing enhancement based on Leavinss trial
testimony does not, as Leavins wishfully claims, make this evidence disappear. GAB
273 n.78. This is hyperbole, not a valid response.
5. The government next says that Craig and Long also reported to Leavins
about [the] investigation into Browns cell phone . . . . GAB 274. Leavins was
Craigs and Longs boss, so it stands to reason that they reported to him. But this
boils down to saying that Leavins outranked Craig and Long in the LASD hierarchy,
which, as discussed in Leavinss supplemental opening brief, is not a valid reason to
apply 3B1.1(a). See LSOB 8-10. Put differently, the fact that Leavins outranked
Craig and Long is not a stand-in for showing that Leavins exercised decision-making
authority or control over them with respect to an effort to obstruct a grand jury
proceeding.

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 9 of 16

6. Next the government states that Leavins ordered Craig to interview Brown
and participated in the first such interview. GAB 274 (citing Governments Excerpts
of Record (GER) 696, 698). For this claim, the government cites Craigs testimony
that on August 24, 2011, Captain Carey, the commanding officer of ICIB, assigned
[him] to conduct the Michel-Brown investigation and to find out where the cell
phone [found on Brown] had come from. GER-3 694-696; 6/18/14 Reporters
Transcript (Vol. 1) 3247-3250. Carey also instructed [Craig] to meet with Lieutenant
Leavins at Temple Sheriff Station, after which Craig drove to that station to meet
with Leavins and others. GER-3 696-98. During that meeting, Leavins told Craig to
interview Anthony Brown and to attempt to locate where the who the deputy in
question was that provided the cell phone to Brown. GER-3 698.
Again, this merely shows that Leavins was Craigs superior with respect to the
cell phone investigation. That does not equate to Leavins having decision-making
authority or control over Craig with respect to an effort to obstruct a grand-jury
proceeding. For example, the government points to no evidence that: (1) Leavins
decided to initiate the cell phone investigation to use it as a cover for an effort to
obstruct a grand jury proceeding, and the others agreed to, or complied with, that

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 10 of 16

decision;1 or (2) Craig complied with orders from Leavins with respect to such an
obstructive effort.
7. Next the government claims that Leavins . . . supervised and participated
in Craig and Longs witness tampering interviews of Deputies Michel and Courson.
GAB 274. This claim is a red herring because, as mentioned in the joint opening
brief, the government did not proceed with, and could not have prevailed on, a witness
tampering theory, which would have required it to show that the defendants knew
that [Michel and Courson were] expected to be called to testify before a grand jury.
United States v. Washington Power Water Co., 793 F.2d 1079, 1084 (9th Cir. 1986);
Joint Opening Brief (JOB) 75. Furthermore, there is no evidence that Leavins decided
that any witnesses should be tampered with, or that he ordered Craig or Long to
tamper with any witnesses. Notably, the government cites over sixty pages of record
for this claim, without identifying a single page that shows that Leavins exercised
such decision-making authority or control in an effort to obstruct a grand jury
proceeding.
8. The government next asserts that Leavins was ranking officer present when
LASDs special operations group was directed (by Craig) to conduct surveillance on

Notably, the ability to exercise decision-making authority also implies control

over others, because making a decision is meaningless in this context if others will not
follow along with that decision.
7

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 11 of 16

Marx. GAB 275. The government also claims that Leavins approved that
surveillance. Id. Both claims are misleading.
For the first claim, the government cites testimony from ICIB Surveillance
Officer Reuben Martinez, in which he indicated that: (1) on September 13, 2011, he
went to a meeting in a large room at LASD Headquarters; (2) there were a number
of people there; (3) he did not know who was in charge; (4) the ranking officer that
[he] saw there [was] Lieutenant Leavins; (5) he spoke to several people there; and
(6) he possibly spoke to Craig, who told him that he would be conducting
surveillance of an FBI Special Agent Leah Marx. ER-3 1099. Thus, contrary to
what the government implies, Martinez did not indicate that Leavins heard Craig
direct Martinez to do surveillance of Marx, much less that Leavins ratified any such
order.
As for the governments explicit claim that Leavins approved that
surveillance, its record cite (ER-6 1729) does not support that claim, and instead
relates to Craigs approaching Agent Marx at her home. While it is true that Craig
raised the surveillance issue with Leavins, it was Captain Carey and Undersheriff
Tanaka that approved the surveillance. See ER-4 1357-58; ER 5: 1511-12. But even
if Leavins had approved the surveillance, the government does not explain how this
shows he had decision-making authority with respect to obstructing a grand jury
proceeding. Which leads back to the invalidity of many of the governments claims
8

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 12 of 16

of obstructive conduct, an issue addressed in the joint opening brief. JOB 57-76.
There is no logical basis for concluding that the Defendants decided to do surveillance
of Agent Marx in an effort to obstruct a grand jury proceeding. Indeed, it is hard to
understand how that surveillance can even be construed as intended to obstruct the
FBI.
9. Finally, the government says that Craig and Long thereafter, at Leavinss
direction, approached Special Agent Marx outside her house on September 26,
2011, and [d]uring that interview, they followed Leavinss orders not to arrest her.
GAB 275.
For this, the government relies largely on a cite to the presentence report, as it
must, because the trial record does not support the claim that Leavins made the
decision to have Craig and Long approach Agent Marx. Instead, the trial record
indicates that Sheriff Baca ordered ICIB investigators to contact Marx at her
residence. See ER-4 1329; ER-5 1516. The only portion of the trial record that the
government cites to support its claims is ER-6 1729, which is Craigs testimony that
Leavins told him that Agent Marx was not to be arrested. The government does not
explain how that shows that Leavins exercised decision-making authority or control
over Craig with respect to an effort to obstruct a grand jury proceeding, and there is
no logical explanation.

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 13 of 16

In sum, the governments claims in this context all relate to the fact that Leavins
was assigned to head up the cell phone investigation, and that he was a superior
officer to some of those in the LASD who participated in that investigation. That is
not sufficient to support application of 3B1.1(a). Instead, there must be evidence that
Leavins (1) had decision-making authority with respect to the alleged endeavor to
obstruct a grand jury proceeding, or (2) exercised control over others with respect to
such an endeavor. The government points to no such evidence.
CONCLUSION
For the reasons set out in the Appellants joint brief, Leavins requests that the
Court vacate his convictions and remand with appropriate instructions. Failing that,
he requests that the Court remand for re-sentencing, with instructions that the district
court not apply an upward role adjustment.
Respectfully submitted,

Dated: May 17, 2016

s/ Todd W. Burns
TODD W. BURNS
Burns & Cohan, Attorneys at Law
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 236-0244
Attorney for Defendant-Appellant

10

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 14 of 16

CERTIFICATE OF RELATED CASES

This case has been consolidated with the appeals of Mr. Leavins's co-defendants
during trial, and the case numbers for those cases are 14-50440, 14-50441, 14-50442,
14-50446, and 14-50449. In addition, this Court has previously recognized United
States v. James Sexton, Case No. 14-50583, as a related case. Counsel for Mr. Leavins
is not aware of any other related cases on appeal at this time.
Respectfully submitted,

Dated: May 17, 2016

/s/ Todd W. Burns

TODD W. BURNS
Burns & Cohan, Attorneys at Law
1350 Columbia Street, Suite 600
San Diego, California 92101
Telephone: (619) 236-0244
Attorney for Defendant-Appellant

11

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 15 of 16

CERTIFICATE OF COMPLIANCE PURSUANT TO FED. R. APP.

32(A)(7)(C) AND CIRCUIT RULE 32-1 FOR CASE NUMBER 14-50455
I certify that: (check appropriate options(s))
X 1.

Pursuant to Fed. R. App. P. 32(a)(7)(C) and Ninth Circuit

Rule 32-1, the attached reply brief is
X

Proportionately spaced, has a typeface of 14 points or more and contains

2,223 words (opening, answering, and the second and third briefs
filed in cross-appeals must NOT exceed 14,000 words; reply briefs must
NOT exceed 7,000 words),

or is

Monospaced, have 10.5 or fewer characters per inch and contains

words or _____ lines of text (opening, answering, and second and third
briefs filed in cross-appeals must NOT exceed 14,000 words, or 1,300
lines of text; reply briefs must NOT exceed 7,000 words or 650 lines of
text).

May 17, 2016

Date

/s/ Todd W. Burns

TODD W. BURNS
Burns & Cohan
Attorneys for Defendant-Appellant

12

Case: 14-50440, 05/17/2016, ID: 9979910, DktEntry: 90, Page 16 of 16

CERTIFICATE OF SERVICE WHEN ALL CASE PARTICIPANTS ARE

CM/ECF PARTICIPANTS
I hereby certify that on May 17, 2016 , I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that service
will be accomplished by the appellate CM/ECF system.
/s/ Todd W. Burns

13