Wednesday, September 28, 2016

US v. Zhou, No. 14-50288 (9-27-16)(Graber w/Silverman; concurrence by Graber; dissent by Tashima).  The 9th affirmed restitution for fraud victims of a Target store in Colorado, although he only pled to the conviction covering fraud at Nordstrom stores in California.  The Mandatory Victims Restitution Act of 1996 allows restitution to victims of the offense. How can the Target victims be the victims of the offense of conviction, when the factual basis was for Nordstrom victims?

First, the review is plain error.  Second, the panel looked to the charge of unauthorized access devices, which covered the time frame of the Target fraud.  Although the factual basis was for Nordstrom, and took in the Nordstrom victims, the facts were sufficient to support the guilt of the charge. The charge then widened to include the Target victims.

Graber, concurring, criticized the 9th's doctrine of "pure question of law," which is a variation of plain error, but also distinct.  It allows the court to decide pure legal issues. Graber believes this runs counter to plain error, and Fed R Crim P 52(b).

Tashima dissents.  He argues that the Target victims fell outside of the offense of conviction.

The decision is here:


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