United States v. David Nosal ( 2018 )


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  •                            NOT FOR PUBLICATION                            FILED
    UNITED STATES COURT OF APPEALS                         AUG 2 2018
    MOLLY C. DWYER, CLERK
    U.S. COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                        No.   18-10089
    Plaintiff-Appellee,              D.C. No.
    3:08-cr-00237-EMC-1
    v.
    DAVID NOSAL,                                     MEMORANDUM*
    Defendant-Appellant.
    Appeal from the United States District Court
    for the Northern District of California
    Edward M. Chen, District Judge, Presiding
    Submitted July 31, 2018**
    San Francisco, California
    Before: THOMAS, Chief Judge, and McKEOWN and GOULD, Circuit Judges.
    David Nosal appeals the district court’s denial of his petition for a writ of
    error coram nobis and his motion for release of materials pursuant to Brady v.
    Maryland, 
    373 U.S. 83
    (1963). We have jurisdiction under 28 U.S.C. § 1291, and
    we affirm.
    *
    This disposition is not appropriate for publication and is not precedent
    except as provided by Ninth Circuit Rule 36-3.
    **
    The panel unanimously concludes this case is suitable for decision
    without oral argument. See Fed. R. App. P. 34(a)(2).
    In 2013, a jury convicted Nosal of six felony counts stemming from
    unauthorized access of his former employer’s computer system to obtain trade
    secrets and other information. As relevant here, he was sentenced to one year and
    one day in prison and three years of supervised release. We affirmed the
    conviction on direct appeal. See United States v. Nosal, 
    844 F.3d 1024
    (9th Cir.
    2016). In January 2018, Nosal petitioned the district court for a writ of error coram
    nobis to “reopen sentencing and vacate [his] custodial sentence.”
    The district court properly denied Nosal’s petition. For one, the rare writ of
    coram nobis is not available until a petitioner “already has fully served [his]
    sentence.” Telink, Inc. v. United States, 
    24 F.3d 42
    , 45 (9th Cir. 1994); see also
    Estate of McKinney v. United States, 
    71 F.3d 779
    , 781 (9th Cir. 1995) (“The writ
    of error coram nobis affords a remedy to attack a conviction when the petitioner
    has served his sentence and is no longer in custody.”). Nosal is currently in
    custody, with an estimated release date of January 25, 2019, according to the
    Federal Bureau of Prisons. After that date, he will serve a three-year term of
    supervised release. Under our precedent, a petitioner remains in “custody” for as
    long as he is subject to supervised release. See Matus-Leva v. United States, 
    287 F.3d 758
    , 761 (9th Cir. 2002). Nosal is not entitled to a writ of error coram nobis.
    Timing aside, Nosal produced no evidence that his was “an unconstitutional
    or unlawful conviction.” 
    McKinney, 71 F.3d at 781
    (citations omitted). Instead,
    2
    Nosal argued that his sentence should be “reconsider[ed]” because the victim of his
    crime—his former employer—was recently named as a defendant in two civil
    complaints for the “same type of offense” for which Nosal was convicted. Nosal’s
    theory—that subsequent alleged acts by a victim of a crime entitle the crime’s
    perpetrator to coram nobis relief—is without support. As the district court
    observed in denying bail pending appeal, Nosal “failed to cite any applicable
    authority for his assertion.”
    The court did not clearly err in denying Nosal’s “motion for release of Brady
    materials,” which sought information concerning subsequent activities of Nosal’s
    former employer. See United States v. Stinson, 
    647 F.3d 1196
    , 1208 (9th Cir.
    2011). Nosal did not show that the government “suppressed” any “evidence”
    whatsoever, let alone evidence that was “material to” Nosal’s guilt or punishment.
    See generally Turner v. United States, 
    137 S. Ct. 1885
    , 1893 (2017).
    AFFIRMED.
    3