                             NOT FOR PUBLICATION                         FILED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


                                           3
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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