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Foley USA Motion to Dismiss Appeal

Foley USA Motion to Dismiss Appeal

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Published by UncleRuslan
USA's new Motion to Dismiss Foley's appeal - separate but linked to the USA's Opposition to Motion for Bail Pending Appeal.

The USA wants the Ninth Circus to both dismiss the bail motion and also dismiss the appeal (which isn't even due until May 5th).
USA's new Motion to Dismiss Foley's appeal - separate but linked to the USA's Opposition to Motion for Bail Pending Appeal.

The USA wants the Ninth Circus to both dismiss the bail motion and also dismiss the appeal (which isn't even due until May 5th).

More info:

Published by: UncleRuslan on Apr 22, 2014
Copyright:Traditional Copyright: All rights reserved

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07/21/2014

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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’ MOTION TO DISMISS DEFENDANT’S APPEAL
Defendant-appellant David Foley pleaded guilty to one count of conspiracy to commit mail and wire fraud and one count of conspiracy to commit bank fraud,  pursuant to a plea agreement with an appellate waiver provision. This Court should dismiss defendant’s appeal because he knowingly and voluntarily waived his right to appeal his convictions and sentence and because the issues he raises fall squarely within the scope of that waiver. As the district court found in accepting defendant’s guilty pleas and then in denying his motion for bail pending appeal,
1
 defendant knowingly and voluntarily entered into a broad waiver of his appellate rights to challenge his convictions and sentence. Moreover, defendant cannot 1 Defendant has appealed that determination and the government has filed its opposition to defendant’s motion concurrently with this motion to dismiss.
Case: 14-10055 04/21/2014 ID: 9065953 DktEntry: 14-1 Page: 1 of 16
 
2 show that he falls within the limited circumstances in which this Court has declined to enforce such waivers. Accordingly, this Court should dismiss defendant’s appeal.
JURISDICTION AND CUSTODY STATUS
The district court had jurisdiction under 18 U.S.C. § 3231. This Court has  jurisdiction over defendant’s 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 two concurrent terms of 24 months’ imprisonment, to be followed by a three-year  period of supervised release.
FACTUAL BACKGROUND
 
I. Offense Conduct
As defendant acknowledged in his plea agreement, from approximately June 2006 to February 2008, he 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.
; CR 1 at 2. Defendant, who was no longer associated with Ultracade, made and sold the game packs to
Case: 14-10055 04/21/2014 ID: 9065953 DktEntry: 14-1 Page: 2 of 16
 
3 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.
 The 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. In fact, defendant had been terminated by the company after an internal investigation revealed that he was selling Ultracade game packs for his own benefit after agreeing to and being compensated for the transfer of his intellectual property rights to Global VR. Exhibit A at 4.
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. On August 18, 2011, a federal grand jury returned a superseding indictment against defendant and Daddona, charging them with 53 counts of conspiracy to commit mail and wire fraud, mail and wire fraud, trafficking in counterfeit goods, transportation of stolen goods, theft of trade secrets, and money laundering. CR
Case: 14-10055 04/21/2014 ID: 9065953 DktEntry: 14-1 Page: 3 of 16

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