The Ninth Circuit Court of Appeals ruled Wednesday that FBI investigations are not court proceedings under the federal statute criminalizing obstruction of justice. The ruling has received far more attention than it might have if appeals court judge Diarmuid F. O’Scannlain, one of the three judges to hear the case and the author of the ruling, had not begun his opinion with the words: “The facts of this case read like an episode of the fictional television drama Sons of Anarchy.”
O’Scannlain goes on to explain: “Sons of Anarchy is a television drama series that runs on the cable channel FX. It documents the legal and illegal activities of a fictional outlaw motorcycle club operating in a town in California’s Central Valley. In the show, the club’s headquarters are located in a clubhouse adjacent to an auto mechanic shop.”
The prosecutorial fantasy that undercover investigations are really court proceedings is surprisingly widespread. The notion surfaced in May as part of a prosecution against members of the Black Pistons, Hoodlums, and Outlaws Motorcycle Clubs. Three men, Larry “Larry Mack” McDaniel, Sean King and Howard Brown were charged with obstructing a criminal investigation after the men allegedly kicked an FBI informer out of one of the clubs. The charge is based on the theory that an undercover investigation is a court proceeding. Presumably, the charges against those three men will now be dropped.
Road Dog Cycles Case
The case that led to the Ninth Circuit ruling was an FBI investigation of the Hells Angels Motorcycle Club. Believing that the Angels intended to establish a chapter in Modesto, California, an FBI puppet task force called the Central Valley Gang Impact Task Force, or CVGIT, began investigating alleged associates of the club in and around Modesto. Those alleged associates included Robert Holloway and his son Brent who together owned the Road Dog Cycle Shop.
Task force agents alleged the Holloways were dealing in stolen motorcycles and motorcycle parts and that some individuals associated with law enforcement were leaking information to the Holloways. To catch the leakers, CVGIT circulated a contrived law enforcement bulletin about an annual party at Road Dog Cycles and used phone taps to see who warned the Holloways.
Ermoian, Johnson And Swanson
Three men, Gary L. Ermoian, Stephen J. Johnson and a deputy sheriff named David A. Swanson took the bait and warned the Holloways they were being investigated. The three men and nine others were indicted for racketeering in May, 2009. The indictment claimed that Ermoian, Johnson and Swanson had conspired to “corruptly obstruct, influence, and impede an official proceeding, to wit, a law enforcement investigation conducted by the Federal Bureau of Investigation” Their cases were severed from the other Road Dog Cycles defendants and they were tried separately. Swanson was found not guilty at trial but Ermoian and Johnson were convicted.
The district court judge who heard their case ruled that an FBI investigation is an official proceeding. This week, the appeals court told him he was wrong.