By Matt Reynolds, Courthouse News

LOS ANGELES (CN) – While critical of prosecutors for discussing “deputy gangs” at Paul Tanaka’s obstruction trial, the Ninth Circuit refused Thursday to upend the former Los Angeles County undersheriff’s conviction.

Serving five years for his role in obstructing a federal investigation into officer-on-inmate brutality at two L.A. jails, Tanaka argued on appeal that the trial court should not have allowed evidence that he was once in a notorious deputy gang called the Vikings.

The Ninth Circuit rejected Tanaka’s appeal in an unpublished opinion, however, noting that the former second-in-command opened the door to such evidence when he got on the witness stand.

Because Tanaka said he had “no tolerance” for deputies who acted unlawfully, according to the ruling, prosecutors were within their scope to ask him questions about his affiliation with the gang.

The appeals court did object to the government’s use of the term “deputy gang” during closing arguments, but said this was not enough to warrant reversal.

“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,” the four-page memorandum states.

Tanaka also objected in his appeal to evidence citing past civil-rights abuses in county jails, and said that the absence of former Sheriff Lee Baca’s testimony meant he could not present a complete defense at trial.

But the Ninth Circuit saw little reason to think that Baca’s testimony would have contradicted that of government witness former Deputy Mickey Manzo, another convicted official who had a role in the obstruction scheme.

Tanaka is serving his sentence at the Federal Correctional Institute in Florence, Colorado, according to the U.S. Bureau of Prison’s website.

Baca was convicted earlier this year and sentenced to three years in prison. After the Ninth Circuit denied his motion for bond pending appeal in August, Baca refiled the motion at the trial court. U.S. District Judge Percy Anderson has not yet ruled on the renewed motion.

Baca and Tanaka conspired with those under their command to impede an investigation into inmate abuse at two jails by hiding inmate-informant Anthony Brown within the jail system. The conspiracy began when jailers unraveled a covert FBI operation into Men’s Central Jail and the Twin Towers Correctional Facility, after pulling a smuggled cellphone out of a potato chip bag from Brown’s belongings.

The probe was a catalyst for a series of foolish maneuvers by sheriff officials including the threatened arrest of an FBI agent outside her home, and a failed attempt to have a state court judge sign off on a warrant to search the FBI’s Los Angeles offices.

U.S. Circuit Judges Stephen Reinhardt, Alex Kozinski and Morgan Christen sat on the panel that heard arguments from Tanaka and the government earlier this month.