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8/12/2019 USA v. David Foley Foley Docket 12 14-10055
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DENNIS P. RIORDAN (SBN 69320)dennis@riordan-horgan.comDONALD M. HORGAN (SBN 121547)don@riordan-horgan.com
TED SAMPSELL-JONES (MN SBN 034302X)LAYLI SHIRANI (SBN 257022)RIORDAN & HORGAN
523 Octavia StreetSan Francisco, CA 94102Telephone: (415) 431-3472Facsimile: (415) 552-2703
Attorneys for Defendant-AppellantDAVID FOLEY
UNITED STATES COURT OF APPEAL
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID FOLEY,
Defendant-Appellant.
)))))))
)))
Ninth Cir. Nos. 14-10055, 14-10056[N. Dist. Nos. CR 09-00670 EJD,CR 11-00554 EJD]
SUPPLEMENTAL MEMORANDUM IN SUPPORT OF
MOTION FOR RELEASE PENDING APPEAL
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TABLE OF CONTENTS
INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PROCEDURAL HISTORY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
THE STANDARD FOR BAIL PENDING APPEAL. . . . . . . . . . . . . . . . . . . . . . . . 3
ARGUMENT.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
A. The Two Theories of Mail Fraud. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
1. Theory of Fraud in the Plea Agreement. . . . . . . . . . . . . . . . . . . 6
2. Theory of Fraud at Sentencing. . . . . . . . . . . . . . . . . . . . . . . . . . 7
B. The District Courts Errors. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
1. Convergence. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
2. Clear and Convincing Standard. . . . . . . . . . . . . . . . . . . . . . . . 11
C. The Appeal Waiver. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
D. The District Courts Rationale. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15
CONCLUSION. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16
-i-
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TABLE OF AUTHORITIES
CASES
Cleveland v. United States,531 U.S. 12 (2000).. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Ali,
620 F.3d 1062 (9th Cir. 2010). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Armstead,
552 F.3d 769 (9th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Evans,
844 F.2d 36 (2d Cir.1988). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10
United States v. Garro,
517 F.3d 1163 (9th Cir.2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 13
United States v. Gordon,
393 F.3d 1044 (9th Cir. 2004). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
United States v. Handy,
761 F.2d 1279 (9th Cir. 1985). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4, 7, 8, 9
United States v. Hicks,
217 F.3d 1038 (9th Cir. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Lew,
875 F.2d 219 (9th Cir. 1989). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9
United States v. Simpson,
538 F.3d 459 (6th Cir. 2008). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 11
United States v. Tsosie,
639 F.3d 1213 (9th Cir. 2011). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 14, 16
-ii-
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Table of Authorities continued
United States v. Zolp,
479 F.3d 715 (9th Cir.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12
STATUTES
18 U.S.C. 3143(b). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Fed.R.Crim.P. 11; (2). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13
-iii-
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INTRODUCTION
David Foley, the defendant-appellant in this case, pleaded guilty to one
count of mail fraud. That guilty plea was based on a theory, supported by Mr.
Foleys express and limited admissions, that he had made misrepresentations to
customersto whom he sold video games. The case then proceeded to sentencing,
primarily to determine loss amount under the Guidelines. During sentencing
proceedings, however, the government shifted focus to an entirely different theory
of fraud: that Mr. Foley had cheated his employerout of profits from the games
sales, costing it hundreds of thousands of dollars.
The district court accepted the governments argument that loss amount
could be based on a different theory and victim than those specified in the plea
agreement. Largely as a result, the defendant received a sentence of two years
imprisonment rather than probation. But this Court has held that in mail fraud
cases, there must be some convergence between the actual victimi.e., the person
deceived by a defendants misrepresentationsand the resulting loss. The district
courts loss calculation, based entirely on a different theory and different supposed
victim than those as to which Mr. Foley admitted guilt, violated those principles.
At a minimum, this appeal will present a fairly debatable question, and the
defendant is entitled to bail pending appeal.
1
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PROCEDURAL HISTORY
Mr. Foley was charged in two separate indictments. The first (No. 09-
00670) alleged mail fraud and other related counts. The second (No. 11-00554)
alleged bank fraud and other related counts. In 2012, Mr. Foley pleaded guilty to
one count of conspiracy to commit mail fraud and one count of conspiracy to
commit bank fraud.
The parties proceeded to sentencing. The disputed issue at sentencing was
loss amount. The district court conducted an evidentiary hearing on December 6th
and 11th of 2012 to hear evidence regarding loss. After the hearing, both parties
filed written submissions. (SeeNo. 09-00670, Dkt. 186 & 187.) On January 29,
2013, the district court determined a loss amount of $450,000 solely on the basis of
the mail fraud count.1 (1/29/13 Tr. at 51.) Based on that loss amount, Mr. Foley
received a 14-point adjustment under the Guidelines, which resulted in a total
offense level of 18 and a recommended sentence of 27-33 months. The district
court imposed a sentence of 24 months. (Dkt. 251.)
1As noted above, Mr. Foley also pleaded guilty to one count of conspiracyto commit bank fraud. As to that count, however, the district court found no loss.Consequently, that count is irrelevant to the claims presented hereall of Mr.Foleys arguments here relate to the mail fraud count.
2
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Mr. Foley timely appealed, and he filed a motion for bail pending appeal.
(Dkt. 258 & 259.) The district court initially denied the motion without
explanation.
On March 21, 2014, Mr. Foley filed a motion for bail with this Court,
arguing that the district court had violated the law by denying the initial bail
motion without any findings or explanation. On March 25th, this Court issued an
order remanding the case to the district court. These consolidated appeals are
remanded to the district court for the limited purpose of enabling that court to state,
orally or in writing, the reasons for its order denying appellants motion for bail
pending appeal. (3/25/14 Order at 1.) This Court also stated that, after receiving
the district courts explanation, Mr. Foley could file a supplemental memorandum
in support of the motion for bail pending appeal. (Id.)
On March 26th, the district court explained its reasons orally on the record.
Pursuant to this Courts prior order, Mr. Foley now submits this supplemental
memorandum in support of bail pending appeal.
THE STANDARD FOR BAIL PENDING APPEAL
Bail pending appeal is governed by the Bail Reform Act of 1984, 18 U.S.C.
3143(b). The statute states that a defendant is entitled to bail pending appeal if
(a) the defendant is not a flight risk or danger to the community, and (b) the
3
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defendant presents a substantial question on appeal. In this case, the government
has conceded that Mr. Foley is not a flight risk or danger to the community, and the
Court so found in its amplified order of March 26th denying release pending
appeal. The only question is whether he will raise a substantial question on appeal.
In his March 21st motion to this Court, Mr. Foley explained in detail this
Courts interpretation of the substantial question standard. In short, this Court
has held that a substantial question is simply a question that is fairly debatable
and non-frivolous. United States v. Handy, 761 F.2d 1279, 1281 (9th Cir. 1985).
The issue on a bail motion is whether there is a reasonable basis for appeal, not
whether the appeal is likely to succeed. Congress did not intend to limit bail
pending appeal to cases in which the defendant can demonstrate at the outset of
appellate proceedings that the appeal will probably result in reversal or an order for
a new trial. Id. at 1280.
Thus, for the purposes of this motion, this Court need only decide whether
Mr. Foley has some fairly debatable question for appeal.
ARGUMENT
Mr. Foleys appeal will present a fairly debatable issue. Mr. Foley pleaded
guilty to one count of mail fraud based on a particular theory of fraud. But at
sentencing, the district court accepted the governments argument that the loss
4
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amount could be based on a different theory and a different victim. That decision
violated this Courts repeated directive that in mail fraud cases, there must be some
amount of convergence between the fraudulent misrepresentation, the victim, and
the loss. As a result of the district courts error, Mr. Foley received a substantial
prison sentence rather than probation.
A. The Two Theories of Mail Fraud
The government alleged that Mr. Foley committed mail fraud based on his
sales of video games. Mr. Foley owned a company called UltraCade, which
manufactured and sold video games. In 2006, he sold the assets and some of the
intellectual property and transferred some of the license agreements of UltraCade
in an assignment for the benefit of creditors to trustee, who in turn sold some of the
assets to Global VR (GVR). GVR thereby obtained the rights to sell certain video
games. At the same time, Mr. Foley entered into an employment agreement with
GVR.
The government alleged, however, that after the sale, Mr. Foley continued to
sell the video games under the table. It alleged that he continued to manufacture
video game packs at his home, and sell them under the UltraCade label, although
he had sold the rights to the games to GVR. The proceeds of these sales went to
5
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Mr. Foley rather than to GVR. The government alleged that these sales were illicit,
illegal, and fraudulent.
In the proceedings below, however, the government shifted theories of fraud.
Mr. Foley pleaded guilty on the basis that he defrauded customerswho purchased
the game packs. But he was later sentenced on the basis that he defrauded GVR.
1. Theory of Fraud in the Plea Agreement
Mr. Foleys plea agreement stated that he and another person, Michael
Doddona, had defrauded customers by selling game packs under the UltraCade
label. The agreement stated that he and Doddona conspired to make false
representations regarding game pack sales. It stated explicitly that the relevant
false representations were the statements made to customers: Doddona and I knew
that such false representations, that the manufacturer of the goods to be a company
called UltraCade, were material to the customers of game packs. (Dkt. 129 at 3.)
The plea agreement went on to contain the following admission:
Specifically, as the previous operator and owner of a NexTuneCorporation, d/b/a UltraCade Technologies (UltraCade), a
developer and marketer of gaming software for the home arcadegame market, located in Santa Clara, California, I agreed and
conspired to continue to manufacture and sell game packs toDoddona at a time I knew I was no longer associated with thecompany or its successor-in-interest. During all times betweenJune 2006 and continuing to on or about February 2008, Iknowingly manufactured game packs from my residence in Los
6
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Gatos, California. After I manufactured game packs, I sold themto Daddona, and I agreed that he would then sell game packs tothe public using packaging and advertisements that falselyrepresented the goods to be UltraCade.
(Id.)
In short, the admissions in the plea agreement were based entirely on false
representations to customers who purchased video games. The plea agreement did
not mention false representations to GVR. It did not mention GVR as a victim.
Mr. Foley never admitted that he defrauded GVR.
2. Theory of Fraud at Sentencing
The parties proceeded to sentencing to determine the loss amount resulting
from the fraud to which Mr. Foley had pleaded guilty. At sentencing, however, the
government shifted theories. Its entire argument was based on the premise that
GVR had been defrauded and had suffered substantial loss.
At the evidentiary hearing, the government did not call any customers who
had purchased game packs from Mr. Foley based on his false representations.
Instead, it called GVR executives. Its primary witness was Jim DeRose, the former
CEO of GVR. DeRose testified that he felt Mr. Foley had deceived him and
violated their contract by selling games under the table. (12/6/12 Tr. at 39-48.) He
also testified generally that he felt Mr. Foley had misrepresented the financial
7
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health of UltraCade during the merger negotiations. (Id. at 63, 120-21.) GVRs
CFO also testified that he believed Mr. Foley had not been honest during merger
negotiations. (Id. at 139-42.) The witnesses testified that Foleys dishonesty
during negotiations and after had caused GVR substantial losses. (Id. at 52-54.)
The governments post-hearing submission was based entirely on loss to
GVR. It stated that loss should be calculated based on the value of retail sales that
GVR had lost. It calculated this loss at approximately $1.5 million. A loss
amount of approximately $1,589.069 represents the amount of money that Global
VR could have made if the defendant had not flooded the market with his cheap
counterfeit UltraCade game packs. (Dkt. 186 at 12-13.) Nothing in the
submission mentioned loss to customers.
At the subsequent hearing to determine loss, the defense stated that loss
should be limited to what customers sustained. The district court responded that
the governments position . . . is that there was a fraud committed on Global VR.
(1/29/13 Tr. at 9.) The court conceded that GVR theory was not pled to you in the
plea agreement, but that if the government could prove it by a preponderance, it
would form the basis of the loss amount. (Id.) The government then stated in no
uncertain terms that its theory of loss was based not on the customers, but rather on
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GVR: I think we have a clear view of the defendants intent to harm Global VR.
And they are the victim. (Id. at 35.)
The district court accepted the governments argument. It stated that it
would consider the totality of the circumstances related to the defendants
conduct. (Id. at 45.) The court found that Mr. Foley had made false
representations in order to defraud GVR. (Id. at 48-49.) It found, by a
preponderance, that GVR had suffered $450,000 of loss as a result. (Id. at 51.)
B. The District Courts Errors
The district court erroneously based a sentence on a separate theory of fraud
from the theory admitted in the plea agreement. The district courts ruling and its
resulting sentence violates case law of both this Court and the Supreme Court on
the requirement of convergence in mail fraud cases.
1. Convergence
This Court has long held that in order for a defendant to be guilty of mail
fraud, he must intend to obtain money or propertyfrom the one who is deceived.
United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989) (emphasis added). Where
money was not received from the party deceived, there is no fraud within the
meaning of the statute. Id. As the Supreme Court has said, for purposes of the
mail fraud statute, the thing obtained must be property in the hands of the victim.
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Cleveland v. United States, 531 U.S. 12, 15 (2000);see also United States v. Evans,
844 F.2d 36, 39 (2d Cir.1988) (If a scheme to defraud must involve the deceptive
obtaining of property, the conclusion seems logical that the deceived party must
lose some money or property.).
Of course, it is not necessary that the defendant communicate directly with
the victim of the fraud, nor is it necessary that the victim hand money or property
directly to the defendant. Nonetheless, it remains true that there must be some
fraudulent or deceptive conduct that is aimed at the victim from whom money or
property is sought. Put simply, some level of convergence between the fraud and
the loss is required. United States v. Ali, 620 F.3d 1062, 1070 (9th Cir. 2010).
In this case, Mr. Foley pleaded guilty to defrauding customers who
purchased video games. He did not plead guilty to defrauding GVR. By basing its
loss calculation entirely on loss to GVR, the district court violated the requirement
of convergence.
The government argued, and the district court accepted, that under the
relevant conduct principles of the Sentencing Guidelines, the court could
consider the totality of the circumstances in calculating loss. But the Guidelines
are not so broad. Under 2B1.1, the only loss that may be counted is loss that
resulted from the offense. USSG 2B1.1, application note 3(A)(i). There is a
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requirement of causal nexus between the offense conduct and the loss amount.
United States v. Hicks, 217 F.3d 1038, 1048 (9th Cir. 2000);see also United States
v. Simpson, 538 F.3d 459, 464 (6th Cir. 2008) (The term loss in 2B1.1(b) does
not encompass every harm resulting from a crime, no matter how attenuated the
causal link.). Moreover, not everyone who is harmed by a defendants broader
course of conduct is considered a victim for the purposes of conducting
Guidelines calculations. See United States v. Armstead, 552 F.3d 769, 780-81 (9th
Cir. 2008).
In this case, the offense conduct was deceiving customers by selling them
mislabeled video games. The government did not prove any loss that resulted from
that conduct. Instead, at sentencing, the government focused on different
conductMr. Foleys alleged deception of GVR during and after merger
discussions, and his violation of the sale agreement and employment agreement.
This conduct was not the conduct to which Mr. Foley pleaded guilty, and it was
impermissible to use it as the basis for a loss calculation. At an absolute minimum,
this issue presents a fairly debatable question for appeal.
2. Clear and Convincing Standard
The district court also applied the wrong standard in computing the loss
amount. The government argued that it only needed to prove loss by a
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preponderance. (Dkt. 186 at 2.) The district court agreedit stated that it found
its loss amount of $450,000 by a preponderance of evidence. (1/29/13 Tr. at 51.)
This Court has held, however, that where loss calculations have a
disproportionate impact on a defendants sentence, they must be proven by clear
and convincing evidence. United States v. Zolp, 479 F.3d 715, 718 (9th Cir.2007).
In this case, Mr. Foley ended up with a total adjusted offense level of 18. Of those
18 points, 14 resulted from the $450,000 loss calculation. With those 14 points
included, the recommended Guidelines sentence was 27-33 months imprisonment.
Without those 14 points, the recommended Guidelines sentence would have been a
probationary sentence. The loss calculation had a disproportionate impact on the
sentence, and should have been subjected to the higher standard.
Moreover, this Court has also held that the clear and convincing standard
must be applied when a sentence is based on uncharged conduct. In identifying
the appropriate standard of proof, we have distinguished between enhancements
based upon charged conduct for which the defendant has been convicted, and
enhancements based upon uncharged conduct. United States v. Garro, 517 F.3d
1163, 1169 (9th Cir.2008). The loss amount in this case was based not on the
conduct to which Mr. Foley pleaded guilty but rather on the full scope of the
defendants actions over several years, included by the district court as part of the
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totality of the circumstances. Even if it were proper to include all of that conduct
in determining losswhich it was notthe findings were required under Garroto
be found by clear and convincing evidence.
The district court erred. Once again, at a minimum, the appropriate standard
of proof in these circumstances is a fairly debatable question.
C. The Appeal Waiver
Notwithstanding all of the above, the government has argued that Mr. Foley
has no substantial questions for appeal because he waived his right to appeal in the
plea agreement. It is true that in his plea agreement, Mr. Foley agreed to waive his
right to appeal his conviction and his sentence. (Dkt. 129 at 5.) But enforcing that
provision in this context makes no sense, given that Mr. Foley was ultimately
sentenced on a different theory of fraud. In any event, appeal waivers are not
absolute, and the waiver does not apply for three reasons.
First, as this Court has explained, [a]n appeal waiver will not apply if: (1) a
defendant's guilty plea failed to comply with Fed.R.Crim.P. 11; (2) the sentencing
judge informs a defendant that she retains the right to appeal; (3) the sentence does
not comport with the terms of the plea agreement; or (4) the sentence violates the
law. United States v. Tsosie, 639 F.3d 1213, 1217 (9th Cir. 2011) (internal
quotation marks omitted). In this case, both the third and fourth categories apply.
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Mr. Foleys sentence did not comport with the plea agreement, because it was
based almost entirely on a sentence enhancement derived from a different theory of
fraud than the theory contained in the plea agreement. Moreover, by violating
convergence principles and by applying the wrong standard, the district courts
sentence violated the law.
Second, an appeal waiver is void at the outset if it is not made knowingly and
voluntarily. United States v. Gordon, 393 F.3d 1044, 1050 (9th Cir. 2004). Mere
compliance with the procedures set forth in Rule 11 does not suffice. Tsosie, 639
F.3d at 1217 n.3. Rather, a defendant must understand the material consequences
of his plea.
In this case, there was no way that Mr. Foley, at the time he entered into the
plea agreement, could have anticipated that the government would sentence him
based on a different theory of fraud. If nothing else, the plea agreement was
ambiguous and Mr. Foley lacked sufficient notice that he could be imprisoned
based on loss to GVR rather than on loss to customers, the actual victims of the
fraud to which he pleaded. See id. at 1218. Because the appeal waiver was not
made knowingly and intelligently, it is not valid. Indeed, to the extent that the
government continues to rely on the appeal waiver, that will itself be a substantial
issue on appeal.
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Third, the appeal waiver in this case also contained an exception for
ineffective assistance of counsel. It stated: I reserve my right to claim that my
counsel was ineffective in connection with the negotiation of this Agreement or the
entry of my guilty plea. (Dkt. 129 at 5.) As Mr. Foley argued in more detail in his
initial bail motion, his counsel was ineffective.
D. The District Courts Rationale
After this Court remanded the bail motion for an explanation of reasons, the
district court offered a brief oral explanation of its reasons for denying the motion.
Most of the district courts explanation focused on the fact that, in its
judgment, Mr. Foley had agreed to plead guilty to the offense. The district court
recounted the Rule 11 colloquy and stated that the defendant responded
affirmatively to all questions regarding his guilt. (3/26/14 Tr. at 4-5.) Even if that
is true, it has little to do with the questions raised on appeal regarding the legality
of the sentence.
The district court went on to state that it believed it had correctly calculated
the loss figure for sentencing. Regarding trial counsels performance, the district
court noted that while the government had initially asked for approximately $1.5
million in loss based on lost revenues, trial counsel had persuaded the court to
imposed only $450,000 instead based on lost profits. (3/26/14 Tr. at 5-6.) The
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court stated that this was a substantial positive result for the defendant. (Id. at 6.)
Again, even if that is true, it is not responsive to the claim that losses to GVR
should not have been included at all, or that trial counsel was ineffective in
negotiating an agreement that allowed such losses. The fact that trial counsel
successfully avoided one error does not mean that all other errors he failed to avoid
should be ignored.
The district courts stated reasons do not provide a valid basis for denying
this motion for bail pending appeal. Indeed, they were conclusory and largely non-
responsive.
It should be noted, however, that following this Courts remand of the bail
issue back to the district court, the government urged the district court to rely on its
claim of waiver in explaining its previous denial of Mr. Foleys bail motion. The
lower court, however, made no reference of waiver in its March 26thorder, an
indication that it did not believe that waiver to be effective in the context of Foleys
specific appellate claims.
CONCLUSION
The defendant in this case pleaded guilty to one thing, but his sentence of
imprisonment was ultimately based on something else. At the time he agreed to
plead guilty to defrauding customers by selling counterfeit video games, there is no
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way he could have foreseen that he would ultimately be sentenced for defrauding
his employer by stealing its intellectual property. The legal validity of such a
sentence, and the propriety of an appeal waiver in such circumstances, are
substantial questions that Mr. Foley will raise in his appeal.
Dated: April 10, 2014 Respectfully submitted,
DENNIS P. RIORDANDONALD M. HORGANTED SAMPSELL-JONESLAYLI SHIRANI
RIORDAN & HORGAN
/s/ Dennis P. RiordanDENNIS P. RIORDAN
Attorneys for Defendant-Appellant
DAVID FOLEY
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CERTIFICATE OF SERVICE
When All Case Participants are Registered for the
Appellate CM/ECF System
I hereby certify that on April 10, 2014 I electronically filed the foregoing with theClerk of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system.
I certify that all participants in the case are registered CM/ECF users and that
service will be accomplished by the appellate CM/ECF system.
Signature: /s/ Jocilene Yue
Jocilene Yue
******************************************************************
CERTIFICATE OF SERVICE
When Not All Case Participants are Registered for the
Appellate CM/ECF System
I hereby certify that on , I electronically filed the foregoing with the
Clerk of the Court for the United States Court of Appeals for the Ninth Circuit by
using the appellate CM/ECF system.
Participants in the case who are registered CM/ECF users will be served by the
appellate CM/ECF system.
I further certify that some of the participants in the case are not registered
CM/ECF users. I have mailed the foregoing document by First-Class Mail,
postage prepaid, or have dispatched it to a third party commercial carrier for
delivery within 3 calendar days to the following non-CM/ECF participants:
Signature:
Jocilene Yue
Case: 14-10055 04/10/2014 ID: 9053636 DktEntry: 12 Page: 22 of 22
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