USA v. David Foley Foley Docket 12 14-10055

8/12/2019 USA v. David Foley Foley Docket 12 14-10055

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DENNIS P. RIORDAN (SBN 69320)[email protected] M. HORGAN (SBN 121547)[email protected]

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

Case: 14-10055 04/10/2014 ID: 9053636 DktEntry: 12 Page: 1 of 22


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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

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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

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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

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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.

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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.

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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

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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

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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

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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

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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

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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


USA v. David Foley Foley Docket 12 14-10055

Documents

Transcript of USA v. David Foley Foley Docket 12 14-10055