                           NOT FOR PUBLICATION                            FILED
                    UNITED STATES COURT OF APPEALS                         FEB 11 2019
                                                                      MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                           FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                       No.    17-50192

                Plaintiff-Appellee,             D.C. No. 2:16-cr-00066-PA

 v.
                                                MEMORANDUM*
LEROY BACA,

                Defendant-Appellant.

                   Appeal from the United States District Court
                      for the Central District of California
                    Percy Anderson, District Judge, Presiding

                     Argued and Submitted November 6, 2018
                              Pasadena, California

Before: RAWLINSON and HURWITZ, Circuit Judges, and BOUGH, ** District
Judge.

      Leroy Baca appeals from the district court’s judgment and challenges his

jury-trial convictions for conspiracy, in violation of 18 U.S.C. § 371; obstruction of

justice, in violation of 18 U.S.C. § 1503(a); and making a false statement, in



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
            The Honorable Stephen R. Bough, United States District Judge for the
Western District of Missouri, sitting by designation.
violation of 18 U.S.C. § 1001(a)(2). We have jurisdiction under 28 U.S.C. § 1291,

and we affirm.

      1.     In his case in chief, Baca sought to introduce expert testimony by Dr.

James Spar, M.D., regarding Baca’s Alzheimer’s diagnosis. We review a district

court’s decision to exclude expert testimony under Federal Rules of Evidence 403

and 702 for abuse of discretion. See United States v. Spangler, 810 F.3d 702, 706

(9th Cir. 2016); United States v. Hankey, 203 F.3d 1160, 1167 (9th Cir. 2000).

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. 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. Nor did exclusion of this evidence deny Baca his

constitutional right to present a defense. See United States v. Waters, 627 F.3d

345, 354-55 (9th Cir. 2010).

      2.     At trial, Baca sought to elicit testimony that after Assistant Sheriff

Rhambo warned Baca not to interfere with the federal investigation, Baca

responded by stating that federal authorities had broken the law. The district court

excluded this testimony as hearsay. On appeal, Baca argues this statement was

either not hearsay or subject to the state-of-mind exception to the hearsay rule.


                                          2                                     17-50192
Because Baca failed to raise either argument before the district court, we review

for plain error. See United States v. Chang, 207 F.3d 1169, 1176 (9th Cir. 2000).

Even assuming arguendo that the district court erred in excluding this testimony,

Baca has failed to demonstrate that any error affected his substantial rights. See,

e.g., United States v. Alghazouli, 517 F.3d 1179, 1190 (9th Cir. 2008). Baca

introduced evidence of similar instances where he told others that he believed

federal authorities had broken the law during their investigation. 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. Accordingly, we find no plain error.

      3.     Baca also argues that the district court erred in empaneling an

anonymous jury. We review for abuse of discretion, see United States v. Shryock,

342 F.3d 948, 970-71 (9th Cir. 2003), and find none. The district court’s decision

to empanel an anonymous jury was reasonable in light of the highly publicized

nature of this case, Baca’s and his co-conspirator’s positions as former high-

ranking law enforcement officers, and the nature of the charges at issue. See id. at

971 (setting forth factors considered in deciding whether to empanel an anonymous

jury). Additionally, the district court minimized any risk of prejudice to Baca by

instructing the jury that an anonymous jury was utilized to protect the jurors’

privacy and was unrelated to Baca’s guilt or innocence. See id. (requiring the

district court to adopt “reasonable safeguards” to minimize the risk that the


                                            3                                        17-50192
defendant’s rights are infringed).

      4.     Baca next contends that the district court erred in denying his motion

to dismiss the indictment on double jeopardy grounds after the mistrial in Baca’s

first trial. The district court declared a mistrial after the jury reported (and

reaffirmed in open court) that it was unable to reach a verdict and there was not a

reasonable probability that further deliberations would be productive. We review a

district court’s determination that there was manifest necessity to declare a mistrial

for abuse of discretion. United States v. Chapman, 524 F.3d 1073, 1082 (9th Cir.

2008). Given the jury’s assessment and the length of the deliberations, the district

court did not abuse its discretion in declaring the mistrial. See United States v.

Hernandez-Guardado, 228 F.3d 1017, 1028 (9th Cir. 2000) (setting forth factors a

district court should consider in determining whether to declare a mistrial because

of jury deadlock, and noting the “most critical factor” is the “jury’s own statement

that it is unable to reach a verdict”).1 Because the district court did not abuse its

discretion in finding manifest necessity for a mistrial in Baca’s first trial, the


11
   Baca requests that we adopt a rule requiring a district court to give a potentially
deadlocked jury an Allen charge when the defendant requests it and the charge
would not be per se coercive under this Court’s precedent. See Allen v. United
States, 164 U.S. 492 (18960. We decline to do so. As we have recognized,
“[e]xtraordinary caution must be exercised when acting to break jury deadlock,”
and this is particularly the case with Allen charges. United States v. Evanston, 651
F.3d 1080, 1085 (9th Cir. 2011). The decision on whether to give an Allen charge
is left properly to the discretion of the district court. See, e.g., United States v. See,
505 F.2d 845, 854 (9th Cir. 1974).

                                            4                                        17-50192
Double Jeopardy Clause did not bar his retrial. See, e.g., United States v. Alvarez-

Moreno, 657 F.3d 896, 900 (9th Cir. 2011).

      5.     Baca also challenges the district court’s jury instructions regarding the

government’s cooperating witnesses. We find no error. See United States v.

Ubaldo, 859 F.3d 690, 700 (9th Cir. 2017) (a district court’s formulation of jury

instructions are reviewed for abuse of discretion). The district court properly

instructed the jury that the cooperating witnesses were seeking leniency at

sentencing and that the testimony of these witnesses’ should be evaluated with

greater caution than that of others. The district court’s further instruction regarding

the district court’s exclusive authority to determine the cooperating witnesses’

sentences independent of the government’s recommendation was not misleading.

      6.     Baca next argues that the district court improperly instructed the jury

regarding the obstruction of justice count’s mens rea requirement. We disagree.

The district court properly instructed the jury that in order to convict Baca for

obstruction of justice, the government had to prove beyond a reasonable doubt that

Baca acted “corruptly,” meaning that he knew of the federal grand jury

investigation and acted with an intent to obstruct it. See United States v. Rasheed,

663 F.2d 843, 852 (9th Cir. 1981) (“We hold that the word ‘corruptly’ as used in

the statute means that the act must be done with the purpose of obstructing

justice.”). The Supreme Court’s decision in Arthur Andersen LLP v. United States,


                                          5                                     17-50192
544 U.S. 696 (2005), did not require the government to prove that Baca acted with

a consciousness of wrongdoing or that his conduct was wrongful, immoral,

depraved, or evil. See United States v. Watters, 717 F.3d 733, 735-36 (9th Cir.

2013).

      7.     Baca argues that the prosecutor engaged in misconduct during his

rebuttal argument. We find no basis for reversing. Contrary to Baca’s contention,

the government did not argue that the cooperating witnesses’ guilty verdicts could

be used as evidence of Baca’s guilt. Further, the district court negated any unfair

inference created by the government’s references to the guilty verdicts in the jury

instructions. See, e.g., Deck v. Jenkins, 814 F.3d 954, 979 (9th Cir. 2014) (“[A]

jury is presumed to follow the trial court’s instructions.”). Finally, although 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,

we conclude that this line of argument did not materially affect the verdict. See,

e.g., United States v. Taylor, 641 F.3d 1110, 1120 (9th Cir. 2011).2

      8.     Finally, sufficient evidence supported Baca’s convictions. First, the

government was not required to introduce evidence that Baca engaged in bribery to

satisfy the “corruptly” element of 18 U.S.C. § 1503(a). Rather, “the word


2
 To the extent the Defendant argues the district court erred in how it handled the
parties’ objections during closing argument, we find no abuse of discretion. See
United States v. Etsitty, 130 F.3d 420, 424 (9th Cir. 1997) (per curiam).

                                          6                                   17-50192
‘corruptly’ as used in the statute means the act must be done with the purpose of

obstructing justice.” Rasheed, 663 F.2d at 852. The government introduced

sufficient evidence from which a jury could conclude that Baca acted with this

requisite intent. Second, as to the false statement count, the government

introduced sufficient evidence from which the jury could conclude that Baca made

his false statements in a “matter within the jurisdiction” of the executive branch.

18 U.S.C. § 1001(a); see also United States v. Rodgers, 466 U.S. 475, 479-83

(1984).

      AFFIRMED.




                                          7                                    17-50192
                                                         FILED
U.S.A. v. Baca, Case No. 17-50192
                                                         FEB 11 2019
Rawlinson, Circuit Judge, concurring in the result:
                                                      MOLLY C. DWYER, CLERK
                                                       U.S. COURT OF APPEALS
      I concur in the result.
