United States v. Scott Brabson

FILED
NOT FOR PUBLICATION
APR 18 2017
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, Nos. 15-56374
15-56377
Plaintiff-Appellee,
D.C. Nos. 2:04-cr-01191-JFW
v. 2:15-cv-04671-JFW
2:15-cv-04710-JFW
SCOTT ANDREW BRABSON, a.k.a. Seal
A; JAY WILLIAM ROSENDAHL, a.k.a. MEMORANDUM*
Seal B,
Defendants-Appellants,
Appeal from the United States District Court
for the Central District of California
John F. Walter, District Judge, Presiding
Submitted April 11, 2017**
Before: GOULD, CLIFTON, and HURWITZ, Circuit Judges.
In these consolidated appeals, Scott Andrew Brabson and Jay William
Rosendahl appeal pro se from the district court’s order denying their petition for a
writ of error coram nobis attacking their 2005 guilty-plea convictions for
*
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).
conspiracy, foreign travel to promote commercial bribery, and wire fraud. We
have jurisdiction under 28 U.S.C. § 1291. We review de novo and may affirm on
any ground supported by the record. See Matus-Leva v. United States, 287 F.3d
758, 760 (9th Cir. 2002). A petitioner’s failure to establish any factor necessary to
prevail on a petition for writ of error coram nobis is “fatal.” Id.
In recent litigation with the American Civil Liberties Union, the Department
of Justice disclosed appellants’ criminal case as a criminal prosecution in which
mobile location data was obtained without a warrant. Appellants contend that (1)
the government’s warrantless collection of mobile location data violated their
Fourth Amendment rights; and (2) the government’s failure to disclose the lack of
a warrant violates Brady v. Maryland, 373 U.S. 83 (1963), and Giglio v. United
States, 405 U.S. 150 (1972). These claims do not warrant coram nobis relief
because appellants have not shown an “error of the most fundamental character.”
United States v. Riedl, 496 F.3d 1003, 1006 (9th Cir. 2007). First, where, as here,
a defendant is convicted as a result of his guilty plea, “the validity of that
conviction cannot be affected by an alleged Fourth Amendment violation because
the conviction does not rest in any way on evidence that may have been improperly
seized.” Haring v. Prosise, 462 U.S. 306, 321 (1983). Second, in their plea
agreements, appellants broadly waived their rights to pursue affirmative defenses,
2 15-56374 & 15-56377
any Fourth or Fifth Amendment claims, and motions that were or could have been
filed. This waiver is valid notwithstanding the government’s alleged failure to
disclose the lack of a warrant. See United States v. Ruiz, 536 U.S. 622, 633 (2002).
Appellants also raise numerous claims of error involving, among other
things, allegations of judicial bias and government collusion, improper search and
seizure of property from their offices, due process violations, and the government’s
failure to respond to certain discovery requests during their criminal prosecution.
Appellants have failed to meet their burden of showing their ten-year delay in
raising these alleged errors was reasonable, and they have not established
fundamental error as to any of these claims. See Riedl, 496 F.3d at 1006.
Finally, the district court did not err by denying the petition without
conducting further evidentiary proceedings. See United States v. Taylor, 648 F.2d
565, 573 (9th Cir. 1981). We reject as unsupported the appellants’ allegations of
judicial bias in the coram nobis proceedings.
All pending motions are denied.
AFFIRMED.
3 15-56374 & 15-56377