FILED
NOT FOR PUBLICATION NOV 02 2015
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-50448
Plaintiff - Appellee, D.C. No. 3:09-cr-01971-W-1
v.
MEMORANDUM*
MIKHAIL L. FELDMAN,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, Senior District Judge, Presiding
Submitted October 23, 2015**
Pasadena, California
Before: PREGERSON and TROTT, Circuit Judges and STAFFORD,*** Senior
District Judge.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
***
The Honorable William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
In 2009, Feldman pleaded guilty to possessing child pornography on his
computer. He was sentenced to 37 months in custody plus five years of supervised
release.
Round 1
2012 - 2013
Four months after his release from prison, Feldman was back in court
because he violated a term of his supervised release. According to his probation
officer, he “willingly made the decision to repeatedly ignore directions from
probation and he continued to view pornographic material because he was unable
to control his urges.” The probation officer recommended “as an added
supervision tool to assist Mr. Feldman to remain law abiding” a Fourth
Amendment Waiver search condition “with or without a warrant, and with or
without reasonable or probable cause.”
At a hearing on January 7, 2013, Feldman admitted using a computer
without permission. One of the websites he continued to access was one he looked
at before being arrested for his original offense. Because he had violated the
probation officer’s and the district court’s trust, the government urged that he
needed the Fourth Waiver provision to help bring him into compliance. The
probation officer pointed out that his family had enabled him to violate his terms.
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Saying that the court and the probation officer would do everything it could
“to try to help you,” the court noted that there had “to be some consequences for
your just having, as you put it, the -- not being able to resist your urge to access
prohibited websites[,] I think that clearly justifies, at least for the time being, the
more stringent search and seizure condition.” The court held out as a carrot the
possibility that the condition could be removed “if he goes a year or so without
having a problem.” He did not appeal.
On June 18, 2013, because he had been compliant, the parties stipulated that
the full Fourth Waiver could be changed to require only “reasonable suspicion.”
Round 2
2013-2014
Before the year was out, Feldman was back in court with another problem.
This time probation caught him in his room with a weapon he made out of a sock
containing a combination lock, sort of a “soft” billy club. He admitted drinking
alcoholic beverages -- also a violation -- given to him by his sister. He also
admitted to continuing improperly to use a computer and to possessing a cellular
“smartphone” with Internet access capabilities. Probation reported that they had
done everything they could think of to try to help him find a job, but to no avail.
His supervision adjustment was described as “poor.” He routinely missed
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treatment appointments. The probation officer described him as “a danger to
himself and others,” and his behavior as “deceptive, reckless, and dangerous.” A
full Fourth Waiver was again recommended and imposed, with four more months
of custody.
Feldman appealed the imposition of the full Fourth Waiver without the need
for reasonable suspicion. The matter was submitted without argument. We
affirmed. In a memorandum disposition, we said, “The record reflects that the
court considered Feldman’s arguments and adequately explained why the condition
was necessary in this case. Moreover, in light of Feldman’s multiple violations of
supervised release, the condition is reasonably supported by the need for deterrence
and protection of the public.” United States v. Feldman, 584 F. App’x. 838 (9th
Cir. 2014).
Round 3
2014
On July 10, 2014, while his case was still on appeal and before we issued
our decision, Feldman was back in court. He was charged with continuing to use
an unauthorized computer, lying to the probation officer, and not following
directives. This time Judge Whelan gave him seven months and imposed the same
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restrictive full Fourth Waiver search condition, this just one day before we
affirmed the same disputed condition from Round 2.
Now with worse facts, i.e. another violation, he appeals again. Counsel
waives off our previous decision and simply argues that the condition makes no
sense.
Every word Judge Whelan uttered in this lengthy saga demonstrates that he
was trying to help Mr. Feldman, not punish him. As Judge Whelan said during
Feldman’s second revocation hearing, “The whole purpose of the supervised
release is to try to help him so he doesn’t get into trouble. . . . I think I am going
to modify some of his conditions to make sure he doesn’t get himself into trouble.”
The record refutes counsel’s attempt to label Judge Whelan’s action as a “blanket
automatic rule” which he imposed without thought. Judge Whelan tailored every
condition to Feldman’s repeated violations. Counsel’s disparaging attempts to
twist Judge Whelan’s words are not appropriate.
AFFIRMED.
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