U.S. Supreme Court Says No to Paul Tanaka, the LASD’s Former 2nd in Command, Now in Fed Prison

At the end of October, Paul Tanaka, the once feared and powerful former second in command of the Los Angeles County Sheriff’s Department, filed an appeal with the United States Supreme Court in the hope of getting the court to reverse his April 5, 2016, conviction for obstruction of justice and conspiracy to obstruct justice.

On Monday, December 4, however, SCOTUS turned him down.

As a result of the conviction, the former undersheriff was given a scorching lecture from U.S. District Judge Percy Anderson about his wrongdoings, before being sentenced to five years in a low-security federal prison camp in Englewood, Colorado, where he has been since January of this year.

Tanaka and his attorneys already appealed his conviction to the 9th Circuit Court of Appeals, but after a hearing before a three-judge panel in early August 2017, the appeal was denied later that same month.

When Tanaka’s appellate attorney, Charles M. Sevilla, filed the just-rejected petition with the nation’s highest court, he made one primary argument for the hoped-for reversal of his client’s conviction. The argument pertained to a portion of the multi-page instructions U.S. District Judge Percy Anderson gave the jury in Tanaka’s trial immediately before the jurors began their deliberation. Sevilla called this fragment of the lengthy instructions the “dual intent” instruction.

The jury instruction in question had to do with with one element of the court’s definition of the charge of obstruction of justice. It reads as follows:

The government need not prove that the defendant’s sole or even primary purpose was to obstruct justice so long as it proves beyond a reasonable doubt that one of the defendant’s purposes was to obstruct justice. The defendant’s purpose of obstructing justice must be more than merely incidental.

Attorney Sevilla argued in the 25-page petition to the high court that this dual instruction portion of the jury instructions opened his client up to wrongful conviction because, “this jury could have found that” Mr. Tanaka’s “dominant and driving purpose was innocent, but still convicted if he had an added insubstantial obstructive purpose.”

Sevilla went on to argue that the prosecution’s case was incredibly weak, but with the so-called dual instruction, the government was able to get a conviction, basically only through “character assassination.”

The “character assassination” that Sevilla hoped to persuade the high court was unfairly used concerned the government’s line of questioning about Tanaka’s membership in the notorious deputy group The Vikings, which his attorney described as wrongfully damaging to his client.

Appellate attorney Sevilla wrote:

“…the trial court twice instructed that this non-existent ‘gang’ evidence could be used against petitioner on the issue of credibility and the element of his intent. In this manner, the error in the use of the “gang” evidence worked its way into the minimalist intent instruction to make the latter instruction the pathway to a wrongful conviction.”

Tanaka’s attorney similarly wrote that, as part of the government’s case, Mr. Tanaka was wrongfully “blamed for a history of inmate abuses at the Men’s Central Jail despite the fact that he wasn’t in charge of the jail during the time several lawsuits were filed…” (Of course the government argued that, as a sort of shadow sheriff, Tanaka did, in practical fact, have power over the county jail system during the period in question, even though not technically in charge of the custody division.)

Although it was arguably a Hail Mary, Sevilla still made an interesting and cogently-written argument that was different from the argument the attorney made to the 9th Circuit. With the earlier argument, which we wrote about here. Sevilla pretty much focused solely on the Lynwood Vikings, and why the introduction of the topic was wrongfully and disastrously harmful to his client.

The 9th Circuit, of course, didn’t agree and turned Tanaka down.

And now so have the Supremes.