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Nos. 14-10055, 14-10056 IN THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DAVID FOLEY, Defendant-Appellant.

UNITED STATES OPPOSITION TO DEFENDANTS MOTION FOR RELEASE PENDING APPEAL Defendant-appellant David Foleys motion for release should be denied because he knowingly and voluntarily waived his right to appeal his convictions and sentence and because he fails to raise any substantial issues likely to result in reversal or a substantially reduced sentence. First, defendant knowingly and voluntarily entered into a broad waiver of his appellate rights to challenge his convictions and sentence, and he cannot show that he falls within the limited circumstances in which this Court has declined to enforce such waivers. Second, defendant cannot demonstrate that he is entitled to the relief he seeks. For the most part, defendant raises issues in his motion before this Court that he never raised at any stagebefore the district court, even in the context of his motion for bail

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pending appeal. But even with respect to the single claim raised before the district court, he has not raised any substantial issues, let alone issues likely to result in reversal, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served (none) plus the expected duration of the appeal process. Indeed, defendant does not even contest his concurrent 24-month sentence of imprisonment for conspiracy to commit bank fraud in D. Ct. No. 11-CR-00554-EJD, to which he pleaded guilty as part of the package plea deal, the terms of which he now asks this Court to rewrite or to disregard entirely. This Court should deny defendants motion and grant the governments concurrently filed motion to dismiss the appeal in light of defendants knowing and voluntary waiver of his appellate rights. JURISDICTION AND CUSTODY STATUS The district court had jurisdiction under 18 U.S.C. 3231. This Court has jurisdiction over defendants appeal pursuant to 18 U.S.C. 3145(c) and 28 U.S.C. 1291. On January 21, 2014, the district court sentenced defendant to a term of 24 months imprisonment, to be followed by a three-year period of supervised release. The district court denied defendants motion for bail pending appeal, but stayed its order pending this Courts resolution of defendants appeal.

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FACTUAL BACKGROUND I. Offense Conduct As defendant acknowledged in his plea agreement, from approximately June 2006 to February 2008, defendant and Michael Daddona conspired to obtain money by making false or fraudulent representations by mail and wire to sell thumb drives (game packs) containing videogaming software that could be loaded onto full arcade video game machines for the home or arcade markets. Exhibit A (Plea Agreement) at 3. Specifically, they represented to buyers that a company called Ultracade, which defendant had sold to Global VR, along with all his intellectual property interests, manufactured the game packs. Id.; Clerks Record (CR) 1 at 2. Defendant, who was no longer associated with Ultracade, made and sold the game packs to Daddona, agreeing that Daddona could then sell the packs to the public using packaging and advertisements that falsely represented the goods to be Ultracade. Id. These game packs were sold at significantly lower prices than the retail prices charged by Global VR. CR 1 at 4. From September to October 2006, defendant also conspired to defraud Countrywide Home Loans by falsely claiming in his application for a nearly $3,000,000 loan and line of credit that he was currently employed by Global VR. Exhibit A at 4. In fact, defendant had been terminated by the company after an internal investigation revealed that defendant was selling Ultracade game packs for 3

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his own benefit after agreeing to and being compensated for the transfer of his intellectual property rights to Global VR. Id.. II. The Indictments On July 1, 2009, defendant and Michael Daddona were indicted on 35 counts of conspiracy to commit mail and wire fraud, trafficking in counterfeit goods, theft of trade secrets, mail and wire fraud, conspiracy to commit money laundering, money laundering, and bank fraud. CR 1. The indictment alleged that defendant secretly manufactured and sold game packs containing video arcade games with counterfeit markings belonging to Global VR for his own financial benefit; that he retained and stole the intellectual property and trade secrets belonging to Global VR; and that he used materials purchased by Global VR and other equipment belonging to Global VR to manufacture and produce video arcade game packs. CR 1 at 5. The indictment also alleged that the counterfeit game packs were advertised and sold at a significantly lower price than that charged by Global VR. CR 1 at 6. On August 18, 2011, a federal grand jury returned a superseding indictment against defendant and Daddona, charging them with 53 counts. 1 See CR 103. In count one, to which defendant ultimately pleaded guilty, the indictment alleged that [i]t was part of the scheme and artifice to defraud that Foley, after reaping the On that same day, defendant was indicted in CR 11-00554-EJD on charges related to the mortgage and line of credit he fraudulently obtained. 4
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benefits from the sale of Ultracade to Global VR, retained and stole the intellectual property and trade secrets belonging to Global VR, and secretly manufactured and sold counterfeit game packs containing video arcade games with counterfeit markings belonging to Global VR . . . for his own financial benefit. CR 103 at 34. The superseding indictment further alleged that defendant used Global VRs intellectual property and materials to produce the counterfeit game packs; that he bought additional materials to make the game packs and charged their cost to Global VR; that [t]he proceeds paid to Foley for the counterfeit game packs were not recorded in Global VRs accounting records; and that the counterfeit game packs were sold at significantly lower prices than the retail prices charged by Global VR. CR 103 at 4-5. It also alleged that as part of the scheme to defraud, Foley instructed, encouraged, and otherwise caused Daddona to lie to representatives of Global VR when Daddona was asked why he had not purchased the regular supply of game packs from Global VR. CR 103 at 5. III. Defendants Plea Agreement On January 6, 2012, defendant entered into a plea agreement with the government, pursuant to which he agreed to plead guilty to one count of conspiracy to commit mail and wire fraud as set forth in the superseding indictments first count in case number CR 09-00670-EJD, and one count of conspiracy to commit bank fraud in case number CR 11-00554-EJD. Exhibit A at 5

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1. In return, the government agreed to dismiss the remaining charges against defendant. Id. at 8. With respect to sentencing, the parties agreed to an adjusted offense level of up to 20 on the conspiracy to commit mail and wire fraud count, with the proviso that the government could argue [that] the amount of loss is no more than 3,211 units multiplied by $479 a unit, or $1,589,069, while defendant could argue that the loss amount was as low as $0. Id. at 6. The parties agreed to an adjusted offense level on the conspiracy to commit bank fraud of up to 22, and that the court would decide the combined offense level after determining the appropriate amounts of loss for both counts. Id. at 6-7. The parties reached no agreement as to defendants criminal history category. Id. at 5. As part of the sentencing stipulations, defendant expressly stated that he understood that the court is not bound by the Guidelines calculations . . . , the court may conclude that a higher Guideline range applies to me, and, if it does, I will not be entitled, nor will I ask to withdraw my guilty plea. Id. Defendant also agreed that regardless of the sentence that the court imposes on me, I will not be entitled, nor will I ask, to withdraw my guilty plea. Id. As part of the agreement, defendant agreed to a broad waiver of his rights to appeal and collateral review. Id. at 5. Paragraph 4 of defendants Plea Agreement stated: I agree to give up my right to appeal my convictions, the judgment, and 6

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orders of the Court. I also agree to waive any right I may have to appeal any aspect of my sentence, including any order relating to forfeiture and/or restitution. Id. Paragraph 5 of the Plea Agreement stated: I agree not to file any collateral attack on my conviction or sentence, including a petition under 28 U.S.C. 2255 or 28 U.S.C. 2241, or motion under 18 U.S.C. 3582, at any time in the future after I am sentenced, except that 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. Id. IV. Defendants Plea Colloquy During the plea colloquy, defendant confirmed that he had read and reviewed the plea agreement with his lawyer. Exhibit B (Plea Colloquy) at 3-4. Defendant further stated under oath that he was satisfied with the services of his lawyer, that he was not threatened into pleading guilty, and that he was pleading guilty freely and voluntarily. Id. at 6, 7. Defendant then admitted, again under oath, that he was in fact guilty of the crimes to which he was pleading guilty. See id. at 7. The court also confirmed that defendant had had the opportunity to discuss the plea agreement and in particular its sentencing provisions and that defendant understood their significance. Id. at 7-8. After advising defendant of the elements of the offenses and the maximum penalties he faced, id. at 10-13, as well as the rights he was waiving by pleading 7

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guilty, id. at 14-17, the district court expressly advised defendant that he was waiving his right to appeal. Id. at 17-18. In response, defendant acknowledged that he understood that he was waiving those rights. Id. The government then made an offer of proof, noting that defendants false representations that the game packs were made by Ultracade were material to the customers who bought them, and that defendant made and sold the game packs even though he was no longer associated with Ultracade or Global VR. Id. at 1920. The government also stated that defendant had conspired with another individual to falsely represent that defendant was still employed by Global VR in order to obtain a nearly $3,000,000 mortgage and line of credit. Id. at 21. Defendant agreed that the facts as stated by the government were true and correct. Id. at 22. The district court then found that defendant had made a knowing, intelligent, and voluntary waiver of his rights as to each of his pleas, and that there was an independent factual basis for each of the offenses. Id. at 25. V. Evidentiary Hearings on Loss and Sentencing The parties filed a joint pre-evidentiary hearing statement on the amount of loss in which they agreed that the district court should apply a preponderance of the evidence standard in determining the amount of loss. CR 169 at 2. The government argued that the loss amount was $1,589,069, the retail value of the game packs multiplied by the number of game packs sold after June 2, 2006, when 8

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all of Ultracades and Foleys assets and intellectual property had been fully transferred to Global VR. Id. at 4-5. In response, defendant argued for a loss amount of zero because his misrepresentations harmed no one, and because there was purportedly nothing to suggest that Daddona would have bought more from Global VR but for the misrepresentation. Id. at 6, 8. Defendant did not contend that loss should be measured only by the impact, if any, on the individuals who bought the counterfeit packs. Id. at 8. At a final hearing on January 29, 2013, defendant argued that the victims, if any, were the individuals who bought the game packs. CR 197 at 8-10. While defendant (not the court, as defendant mistakenly asserts in his supplemental memorandum) did assert that the Global VR theory was not pled . . . in the plea agreement, he did not argue that the government was precluded from making such an argument, but instead that the government bore the burden of proof at the evidentiary hearing. CR 197 at 9. After considering the parties arguments, the court concluded that the total loss with respect to the mail and wire fraud conspiracy count was $450,000. Id. at 51. The district court sentenced defendant to 24 months imprisonment on each of the counts to which defendant pleaded guilty, to be served concurrently. CR 251.

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VI.

Defendants Motion for Bail Pending Appeal At sentencing, the court scheduled March 24, 2014, as the date for

defendants surrender to the Bureau of Prisons. On January 31, 2014, defendant filed a motion asking that he be permitted to remain out of custody pending resolution of his appeal. CR 258. Defendant argued that he was not a flight risk nor a danger to the community, and that his claims of ineffective assistance of counsel (including claims that counsel failed to inform defendant of the plea agreements terms or the rights he would be giving up) raised substantial questions of law or fact. Id. Defendant did not raise the issues on which he now bases his claim for release namely, that the theory of fraud in the plea agreement differed from the fraud theory at sentencing and that the district court erred in sentencing defendant. Id. On February 5, 2014, the court denied defendants motion. CR 264. Six weeks later, on March 21, 2014, defendant appealed the courts denial of his motion for bail pending appeal, contending that the district court erred by not stating its reasons for denying his motion. On March 25, 2014, this Court remanded to the district court for the limited purpose of enabling the district court to state, orally or in writing, the reasons for its order denying defendants motion.

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VII. The District Courts Reasons for Denying Defendants Motion On March 26, 2014, the district court stated its reasons for denying defendants motion. Exhibit C (Transcript of Statement of Reasons) at 3. The court concluded that defendant was not likely to flee or pose a danger to the safety of the community, but it could not find by clear and convincing evidence that the appeal raised a substantial question of law or fact likely to result in a reversal, a sentence that does not include a term of imprisonment, or a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. Id. at 3-4. In so ruling, the court considered the declaration in support of defendants motion, the plea agreement, and the plea colloquy. Id. at 4. The court noted that during the colloquy, defendant had stated that he had discussed the plea agreement and its sentencing stipulations with counsel, that he was satisfied with counsels performance, and that he was pleading guilty freely and voluntarily. Id. at 4-5. The court also noted that counsels performance at the evidentiary hearing was effective enough to reduce the amount of loss ultimately found to roughly a million dollars less than what the government had requested. Id. at 6. Accordingly, the court concluded, defendant had failed to raise a substantial question of law or fact warranting bail pending appeal. Id.

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After the district court stated its reasons on the record, defendant renewed his motion before this Court. In that supplemental memorandum, defendant raised for the first time that he was entitled to relief because (1) there was an impermissible variation between the theory of fraud in the plea agreement and the theory of fraud at sentencing, and (2) the district court erred in sentencing defendant. ARGUMENT I. STANDARD OF REVIEW This Court reviews factual findings underlying the district courts denial of release pending appeal for clear error. United States v. Garcia, 340 F.3d 1013, 1015 (9th Cir. 2003). The Court reviews the district courts legal determinations de novo. Id. II. APPLICABLE LEGAL STANDARDS Once a defendant has been convicted and sentenced, the Bail Reform Act of 1984 (the Act) presumes that the defendant should be detained pending appeal. Accordingly, courts shall order that a person who has been found guilty of an offense and sentenced to a term of imprisonment, and who has filed an appeal or a petition for a writ of certiorari, be detained, unless defendant can demonstrate by clear and convincing evidence that he is entitled to relief. 18 U.S.C. 3143(b)(1).

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First, defendant must prove by clear and convincing evidence that, if released, he is not likely to flee or pose a danger to the safety of any other person or the community. 18 U.S.C. 3143(b)(1)(A). Second, even if defendant meets this first requirement, he must also demonstrate by clear and convincing evidence that the appeal is not for the purpose of delay and raises a substantial question of law or fact likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. 18 U.S.C. 3143(b)(1)(B). With respect to this last requirement, the Court must resolve two distinct questions: (1) whether the appellate issues raised by the defendant are substantial and (2) whether those issues are likely to result in reversal. United States v. Handy, 761 F.2d 1279, 1280-81 (9th Cir. 1985). [T]he word substantial defines the level of merit required in the question raised on appeal, while the phrase likely to result in reversal defines the type of question that must be presented. Id. A substantial question is one that is fairly debatable, and[l]ikely to result in reversal means that if the substantial question is determined favorably to the defendant on appeal, that decision is likely to result in reversal or an order for a new trial. Id. The burden is on the defendant to overcome the presumption that he should be detained

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while his appeal is pending. See United States v. Montoya, 908 F.2d 450, 451 (9th Cir. 1990). Defendant does not even attempt to meet the requirement that he show by clear and convincing evidence a substantial question likely to result in: (i) reversal, (ii) an order for a new trial, (iii) a sentence that does not include a term of imprisonment, or (iv) a reduced sentence to a term of imprisonment less than the total of the time already served plus the expected duration of the appeal process. Indeed, defendant does not even contest his concurrent 24-month sentence of imprisonment for conspiracy to commit bank fraud. Instead, defendant challenges only the sentence on the wire and mail fraud count, but that is not enough. See, e.g., Morison v. United States, 486 U.S. 1306 (1988) (denying request for release pending filing of certiorari petition where defendant did not show a substantial question as to all counts of conviction). For that reason alone, this Court should deny defendants motion. III. DEFENDANT HAS WAIVED HIS RIGHT TO APPEAL As discussed more fully in the concurrently filed motion to dismiss, defendant knowingly and voluntarily waived his right to appeal his convictions and sentence. Defendant contends in his bail appeal that the waiver was not knowing and voluntary because he could not have anticipated that the government would seek to have him sentenced on a different theory of fraud. But as demonstrated 14

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below, the theory of fraud to which defendant pleaded guilty was the same theory under which he was sentenced. Accordingly, because defendant waived his right to challenge his sentence, this Court should dismiss his appeal. As defendant acknowledges, the only circumstances under which this Court has declined to enforce a valid appeal waiver are when (1) a defendants guilty plea failed to comply with Federal Rule of Criminal Procedure 11; (2) the sentencing judge informed the defendant that he retained the right to appeal; (3) the sentence does not comport with the terms of the plea agreement; or (4) the sentence violates the law. See United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). None of those circumstances apply here. Defendant contends that the waiver does not apply here because the sentence did not comport with the terms of the plea agreement. But that agreement expressly warned defendant that the court was not bound by the agreement at sentencing and that he could not withdraw his plea based on his sentence, and the sentence ultimately imposed based on a loss amount within the range to which defendant agreed. Defendant also contends that the waiver is ineffective because his sentence violated the law. This is meritless. Defendants sentence was within the statutory maximum and thus plainly not illegal. See United States v. Johnson, 998 F.2d 941, 943 (9th Cir. 1993) (illegal sentence one . . . not authorized by the judgment of conviction, . . . in excess of the permissible statutory penalty for the crime, or . . . in violation of the 15

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Constitution). Defendant has alleged a garden-variety Guidelines calculation error, not an illegal sentence. Accordingly, defendant is not entitled to bail pending appeal and his appeal should be dismissed. Bibler, 495 F.3d at 624. IV. DEFENDANT HAS NOT SHOWN BY CLEAR AND CONVINCING EVIDENCE A SUBSTANTIAL QUESTION LIKELY TO RESULT IN REVERSAL OR A SENTENCE SHORT ENOUGH TO WARRANT RELIEF A. The Theory To Which Defendant Pleaded Guilty Was The Same Theory Employed At Sentencing

Defendant argues for the first time on appeal that he pleaded guilty based on one theory of fraud (that he defrauded customers) but was sentenced based on another (that he defrauded Global VR). That assertion, however, has no support in the record. As the superseding indictment, plea agreement, plea colloquy, and evidentiary hearing on loss make clear, the only theory on which the government proceeded was that defendant sold game packs to which Global VR, not he, had intellectual property rights, and that he did so based on false misrepresentations to customers that the materials were in fact made by Ultracade, when they were not. Count one of the superseding indictment, to which defendant ultimately pleaded guilty, alleged that Foley, after reaping the benefits from the sale of Ultracade to Global VR, retained and stole the intellectual property and trade secrets belonging to Global VR, and secretly manufactured and sold counterfeit game packs containing video arcade games with counterfeit markings belonging to 16

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Global VR . . . for his own financial benefit, that defendant used Global VRs intellectual property and materials to produce the counterfeit game packs, that he bought additional materials to make the game packs and charged their cost to Global VR, that [t]he proceeds paid to Foley for the counterfeit game packs were not recorded in Global VRs accounting records, and that the counterfeit game packs were sold at significantly lower prices than Global VR charged. CR 103 at 3-5. The superseding indictment also alleged that Foley instructed, encouraged, and otherwise caused Daddona to lie to representatives of Global VR when Daddona was asked why he had not purchased the regular supply of game packs from Global VR. CR 103 at 5. Defendant admitted the same fraud in his plea agreement, acknowledging that from approximately June 2006 to February 2008, he and Daddona conspired to obtain money by making false or fraudulent representations by mail and wire to sell game packs by representing to buyers that Ultracade, which defendant had sold to Global VR, along with all his intellectual property interests, manufactured those game packs. Exhibit A (Plea Agreement) at 3; CR 1 at 2. Implicit in that admission is the fact that defendant manufactured game packs to which he had no intellectual property rights. Finally, at the plea colloquy, the governments offer of proof noted that defendants false representations that the game packs were made by Ultracade 17

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were material to the customers who bought them, and that defendant made and sold the game packs even though he was no longer associated with Ultracade or Global VR. Exhibit B at 19-20. Simply put, there was a single theory of fraud and the district courts determination of amount of loss based on the harm to Global VR was in no way inconsistent with that theory. B. There Was No Convergence

Defendant ascribes error to the district court by relying on the concept of convergence that is, that for defendant to be guilty of mail fraud, he must intend to obtain money or property from the one who is deceived. United States v. Lew, 875 F.2d 219, 221 (9th Cir. 1989). Here, defendant admitted that his false representations about the game packs manufacturer were material to the customers who bought them, believing that they were made by Ultracade. Exhibit B at 19-20. That is sufficient to sustain defendants conviction. But defendant attempts on appeal to use this principle to limit the amount of loss calculation at sentencing because, he asserts, only the customers who bought the packs were victims. Defendant does not (indeed cannot) cite a single case supporting such a result. In fact, Global VR was also a victim of defendants actions, and nothing in the Guidelines or defendants plea agreement prohibit calculating the Guidelines based on its losses. The Application Notes to United 18

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States Sentencing Guidelines Section 2B1.1 provide that loss is the greater of actual loss or intended loss, they do not limit loss to a particular subset of victims. And nothing in defendants plea agreement precluded the government from arguing that Global VR was also a victim. On this record, defendant cannot show that there is a substantial question that the district court plainly erred in concluding that it was appropriate to include the loss incurred by Global VR. C. The District Court Applied The Correct Evidentiary Standard To Which Defendant Agreed Before The District Court

Finally, defendant contends that the district court erred by applying a preponderance of the evidence standard rather than a clear and convincing standard to the amount of loss determination. But defendant has waived this challenge because he agreed before the district court that a preponderance of the evidence standard should apply. See CR 169 at 2 (Joint Pre-Evidentiary Hearing Statement). Moreover, even if defendant had not waived his challenge, he could not establish plain error where the standard the district court applied was in fact the legally correct one. See United States v. Armstead, 552 F.3d 769, 776 (9th Cir. 2008).

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CONCLUSION For the foregoing reasons, this Court should deny defendants motion for bail pending appeal.

DATED: April 21, 2014

Respectfully submitted, MELINDA HAAG United States Attorney BARBARA J. VALLIERE Assistant United States Attorney Chief, Appellate Division /s/ Anne Voigts ANNE M. VOIGTS Assistant United States Attorney 450 Golden Gate Ave., 11th Floor San Francisco, CA 94102 Phone: (408) 535-5588 Attorneys for Plaintiff-Appellee UNITED STATES OF AMERICA

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CERTIFICATE OF COMPLIANCE I certify that, pursuant to Fed. R. App. P. 27(d)(2), the foregoing is proportionately spaced, using the Microsoft Word 2010 program, with 14-font size Times New Roman style, and contains no more than 20 pages. Dated: April 21, 2014 /s/ Anne Voigts ANNE M. VOIGTS Assistant United States Attorney

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CERTIFICATE OF SERVICE I, Hui Chen, certify that I am an employee of the Office of the United States Attorney, Northern District of California, a person over 18 years of age and not a party to the within action. I certify that on April 21, 2014, I electronically filed the United States Opposition to Defendants Motion for Release Pending Appeal Exhibits A-C to the United States Opposition in the case of United States v. David Foley, CA 14-10055, 14-10056, with the Clerk 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. Dated: April 21, 2014 /s/ Hui Chen Hui Chen Legal Assistant

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