Archives for category: theft

UNITED STATES OF AMERICA, Plaintiff,
v.
VU NGUYEN, Defendant.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEVADA
2:03-cr-158-KJD-PAL
May 29, 2013

Opinion by United States District Judge Kent J. Dawson:

This matter is before the Court on remand from the Ninth Circuit Court of Appeals for the limited purpose of granting or denying a certificate of appealability.

This case arises from the armed robbery of Chong Hing Jewelers in Las Vegas Nevada. In the course of the robbery, several luxury watches having a value of approximately $885,000 were taken by two individuals. The robbers were covered, head-to-toe, in ninja-style white clothing. Before entering the store, one of the robbers executed the store security guard who had his back to them and was cleaning store windows. Eye witnesses had little to go on in describing the robbers other than the fact that one was carrying an assault-type rifle and the other was carrying a bag, and there appeared to be a height difference between the two individuals. The robbers were inside the store for no more than 90 seconds and store employees were assaulted in the process of the robbers obtaining access to the contents of display cabinets.

There was no deficiency in performance of counsel where counsel based the defense on a theory of lack of presence at the scene, incorporating facts and testimony of eyewitnesses to the crime combined with a lack of physical evidence placing Defendant there. This is also entirely consistent with the claim of Defense counsel that they were not previously informed by Defendant of his participation in the robbery. However, even if Defendant did inform counsel of his involvement and potential defense to the shooting, the outcome would not have been different.

Accordingly, Defendant is denied a certificate of appealability.

This may be the first mention of a white ninja outfit, as the prior clothing references refer to mostly (if not always) black clothing, but definitely not the first ninja robbery.

Kids use their parents credit card on Facebook and rack up unauthorized debts. Users’-parents file for a class action, to absolve those debts. In particular, regarding credits purchased for the game “Ninja Saga”

I.B., by and through his Guardian ad Litem BRYAN FIFE, et al., Plaintiffs,
v.
FACEBOOK, INC., Defendant.

No. C 12-1894 CW

UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF CALIFORNIA

Decided, October 25, 2012 by Opinion of Judge Claudia Wilken

Below are the facts from the Opinion (citations to complaint removed):

Facebook operates the largest online social network in the world and provides a payment system, Facebook Credits, for users to make purchases within the Facebook website. Facebook permits minors to register on its website and use its service

In October 2011, Plaintiff I.B., a minor, asked his mother, Plaintiff Glynnis Bohannon, for permission to spend twenty dollars on his Facebook account using Bohannon’s Wells Fargo Master Card, in exchange for twenty dollars in cash I.B. purchased Facebook Credits from Facebook for use in “Ninja Saga.” Subsequently, without any notice that his mother’s credit card information had been stored by Facebook and the Facebook Credits system, or that his mother’s credit card information was being used again after the initial twenty dollar purchase, I.B. made in-game purchases for which he thought he was spending virtual, in-game currency. As a result, Bohannon’s credit card was charged repeatedly and without her consent, and the charges totaled several hundred dollars. Upon discovering the transactions, Bohannon tried to obtain a refund from Facebook by leaving a phone message at a phone number listed for Facebook but received no response.

This opinion is on motions to dismiss,

Facebook moves to dismiss the 2AC for failure to state a claim and to strike the class allegations. Plaintiffs oppose the motions.

As to requests for Judicial notice:

Facebook asks the Court to take judicial notice of screen shots of webpages from Facebook’s website on the grounds that they were specifically referred to in the 2AC or illustrate the allegations in the amended complaint. These include Facebook’s Statement of Rights and Responsibilities, Payment Terms, Help Center pages and payment screens in the game Ninja Saga. Plaintiffs object to these exhibits. Facebook’s manager of Payment Operations, Bill Richardson, provides a supporting declaration concerning the public availability of these webpages. However, Mr. Richardson states that the screen shots were viewed and printed between April 13, 2012 and May 10, 2012, and his declaration does not indicate whether these webpages were in effect or available at the time of the events alleged in the 2AC. Richardson Decl. at 2-4 nn.1-6. In support of Facebook’s reply, Mr. Richardson states that Facebook did not “materially alter” the Ninja Saga payment pages between October 2011 and May 2012. Suppl. Richardson Decl. 3. However, whether the minor Plaintiffs I.B. and J.W. would have viewed these particular payment pages is subject to reasonable dispute. Facebook’s request for judicial notice is therefore denied. See In re Easysaver Rewards Litig., 737 F. Supp. 2d 1159, 1168 (S.D. Cal. 2010) (denying request for judicial notice where “[t]he Court finds that whether these are the webpages Plaintiffs would have viewed during their online transactions is subject to ‘reasonable dispute.'”) (citing Fed. R. Evid. 201).

Then discussing applicable law regarding minors in contracts, subheadings: “2. Contracts Voidable Under Family Code Section 6710” and “a. Minors May Disaffirm Contracts Even After Receiving Benefits”:

Facebook contends that minor Plaintiff I.B. cannot disaffirm his contract because he has already received the full benefit of the Facebook Credits that he purchased by using the Credits to make in-game purchases in “Ninja Saga.

Facebook contends that the ruling in E.K.D. on the enforceability of the forum selection clause is directly applicable here because minor Plaintiff I.B. has already accepted the benefits of the contract to purchase Facebook Credits, as demonstrated by his concession that he used the Credits to make “in-game purchases” in the Ninja Saga game. Mot. at 10-11 (citing 2AC 25). Although Plaintiffs do not allege what Plaintiff J.W. did with the Credits that he purchased, Facebook infers that he also spent the Credits online and argues that allowing the minor Plaintiffs to disaffirm their contracts would result in “an unfair windfall to the minor.”

The court goes on to address claims of violations of Electronic Fund Transfer Act, 15 U.S.C. § 1693 et seq. (EFTA) to which

Facebook contends that it is not a “financial institution”

But

Plaintiffs do not contend that Facebook is a financial institution but rather assert a claim under HN22Go to this Headnote in the case.15 U.S.C. § 1693m, which provides for civil liability against persons other than financial institutions.”

And

Plaintiffs do not sufficiently allege which provision of the EFTA has been violated … motion to dismiss the EFTA claim is granted with leave to amend

Then the Consumer Legal Remedies Act, California’s Unfair Competition Law and the Money Transmission Act.

In conclusion a mixed decision of dismissals, some with leave to amend, and some denied. The claims under the California Family Code remain.

As mentioned previously, “ninja rocks“, are a tool of automobile burglars that is used to break car windows. Wikipedia explains that “they can quickly and almost silently fracture the glass windows on most cars”. In the following 2012 case opinion on a petition for writ of habeas corpus from an incarcerated person in California, the defendant possessed “ninja rocks”. The writ was denied.

CHESTER BROWN, Petitioner,
v.
KATHY PROSPER, Warden, Respondent.

No. C 09-04870 SBA (PR)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

June 20, 2012, Decided
July 24, 2012, Filed

Opinion by US District Judge Saundra Brown Armstrong:

An Alameda County jury convicted Petitioner of two counts of first degree burglary and three counts of receiving stolen property

The statement of facts quoted from the California Court of Appeal:

Pleasanton Police Officer Mike Murazzo responded to the Bishops’ call, and stopped defendant’s Buick at 7:05 a.m. on Longview Drive near the intersection with Foothill Drive. Murazzo positively identified defendant in court. When he was stopped, defendant was wearing a long black leather jacket with a pair of scissors protruding from a pocket. Defendant’s pockets also contained vice-grip pliers and two screwdrivers. On the front seat of defendant’s car were “ninja rocks,” broken pieces of spark plug porcelain used by auto burglars to break car windows with a minimum amount of noise.

UNITED STATES OF AMERICA
v.
BRANDON CAPAROTTA

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

1:10-cr-00147-JAW
2011 U.S. Dist. LEXIS 32522

Decided March 28, 2011

Opinion by Chief District Judge John Woodcock, Jr.:

On November 10, 2010, Brandon Caparotta pleaded guilty to theft of firearms from a licensed dealer, a violation of 18 U.S.C. § 922(u), and possession of stolen firearms, a violation of 18 U.S.C. § 924(a)(2). At the guilty plea, the Court ordered the preparation of a presentence report (PSR).

and quoted from paragraph 7 of the PSR:

While at the residence, Caparotta gave Cory Damon the mini-bike, which Caparotta reported stealing, and asked Damon to sell it for him, so they could split the money. They were in the process of stealing a Ninja 1000 motorcycle when the pickup truck got stuck in a ditch and the police came.

The issue:

She explained that she was not objecting because the PSR inaccurately reported what Corey Damon had said; rather, she was objecting because what Corey Damon had said was false and should not be considered by the Court.

and

Defense counsel contended that under Rule 32(i)(3)(B), the Court had an obligation to strike the portion of the PSR to which she had objected. Fed. R. Crim. P. 32(i)(3)(B).

Therefore

The Court therefore ORDERS Brandon Caparotta within seven days of the date of this Order to set forth in detail precisely what statements he contends are erroneous on a line by line basis

Presumably that hearing in Maine District Court went forward – but later, this same defendant’s case on subsequent appeal, the First Circuit affirmed the conviction, USA v Caparotta, 676 F.3d 213 (April 5, 2012, 1st Cir.) – This case decided before Chief Circuit Judge Lynch, Retired Associate Justice of the Supreme Court David Souter sitting by designation and Associate Circuit Justice Stahl, who wrote the opinion:

After pleading guilty to stealing firearms and possessing stolen firearms, defendant Brandon Caparotta received a sentence of fifty-four months’ imprisonment. That sentence was based, in part, on the district court’s finding that Caparotta qualified as a “prohibited person” who, because of his history of substance abuse, was barred from possessing firearms. Caparotta raises two arguments on appeal, both stemming from an interview with the Pretrial Services Office during which he disclosed information about his drug use at the time of the offense. That information, he claims, was obtained upon a promise of confidentiality, and it was therefore a violation of his due process rights and of Federal Rule of Criminal Procedure 32 for it to be included in his Presentence Investigation Report (PSR) and used against him at sentencing. He also claims that he was denied the effective assistance of counsel, in violation of the Sixth Amendment, when his trial attorney allowed him to disclose the information. We find that Caparotta’s due process claim is waived, that he has not demonstrated a violation of Rule 32, and that his Sixth Amendment claim fails. We therefore affirm.

Petition for writ of certiorari to the Supreme Court was denied, Caparotta v US, No. 11-10207, 132 S. Ct. 2754 (June 11, 2012); JUDGES: Roberts, Scalia, Kennedy, Thomas, Ginsburg, Breyer, Alito, Sotomayor, Kagan.

MARVIN BRYANT, Petitioner,
v.
T. FELKER, Warden, Respondent.

No. C 06-0005 CW (PR)

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF CALIFORNIA

2011 U.S. Dist. LEXIS 9091

Decided January 24, 2011
Opinion by District Judge Claudia Wilken:

Petitioner waived his right to a jury trial and was convicted of attempted murder, residential robbery, assault with a firearm, and residential burglary. (Resp. Memo. at 1.) On May 2, 2003, the trial court sentenced Petitioner to twenty-eight years. (Second Amended Petition (SAP) at 2.) The trial court found true the allegations of personal use of a firearm, intentional discharge of a firearm, and infliction of great bodily injury.

Quoting from The California Court of Appeal description of the facts:

Defendant was released because his clothing did not match the dispatch description of Raman’s attacker.

but

While being transported to the hospital Raman told police about the argument between Turner and Pamela, that three men had come to the door and he was not sure he could identify his attacker. He did say his attacker wore black clothing and a black beanie

and

Testifying on his own behalf, defendant admitted: vandalizing a car at age 14, an auto theft conviction at age 16, a 1997 arrest for possessing a “Ninja-rock,” used to break car windows, a 1998 arrest for stealing a video game, and a 1999 allegation of domestic violence by his girlfriend. Defendant said he was at Turner’s apartment when she came home upset that Pamela had called her a “black bitch.” He admitted he went with Westbrook and two other men to Pamela’s apartment to demand an apology. He said Westbrook, Raman and Pamela argued outside the Khannas’s apartment. Defendant denied saying anything or threatening the Khannas. He also denied returning to the Khannas’s apartment and having any involvement in the crimes committed.

Holding:

the petition for a writ of habeas corpus is denied.

Affirmed by, Bryant v. Felker, 464 Fed. Appx. 562, (9th Cir. Cal. 2011)

This pro se defendant was convicted of robberies and attempted carjacking and was described by witness testimony as wearing a ninja-suit and wielding an AK-47. Here the Court in 2007 denies motion for new trial.

UNITED STATES OF AMERICA
vs.
ANDRE HENRY

CRIMINAL ACTION NO. 06-33-01
UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA

Opinion by Judge Jan E. DuBois, decided August 24, 2007:

On February 22, 2007, a jury convicted defendant Andre Henry of crimes related to eight robberies of fast food restaurants; the straw purchase, possession, and use of assault weapons and other firearms; two armed bank robberies; conspiracy to commit a third armed bank robbery; an attempted carjacking that involved shots fired at a police officer; and solicitation to commit murder of a federal grand jury witness. Currently before the Court is defendant Andre Henry’s pro se Motion for Judgment of Acquittal and Motion for New Trial Pursuant to Fed. Rules of Crim. Proc. 29 and 33 (Document No. 473, filed April 12, 2007). For the reasons that follow, defendant’s Motion for Judgment of Acquittal and Motion for New Trial are denied.

Included in the facts:

one of the victim of the attempted carjacking, Janine McCullers, testified as follows during the trial:

[A]s I’m ready to pull out of the parking space, an individual is in front of my car in all black, like a Ninja-type suit, with a gun pointed at me, standing in front of the car with a gun aimed like this — in front of my car saying something

The court denies defendant’s motion for acquittal, finding sufficient mens rea to meet the elements of the crimes of carjacking. Additionally defendant’s motion for a new trial is also denied.

Recall other instances of “ninja” as a type of clothing (worn by both criminals and law enforcement personnel) .

Habeas petition successful because of violation of Brady v Maryland and perjured testimony. Time served but conviction vacated. Allegations of robber with a “Ninja mask” (note, ninja is capitalized):

CLINTON TURNER, Petitioner,
– against –
SUNNY L. SCHRIVER, Respondent.

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF NEW YORK
97 CV 3074 (NG)
327 F. Supp. 2d 174

Opinion by Judge Nina Gershon, decided July 21, 2004:

Petitioner brings this petition for a writ of habeas corpus under 28 U.S.C. § 2254, challenging his 1988 conviction, after a jury trial, in the New York Supreme Court, Queens County (Sherman, J.), of Robbery in the First Degree in violation of N. Y. Penal Law § 160.15; Robbery in the Third Degree in violation of N. Y. Penal Law § 160.05; and Grand Larceny in the Fourth Degree in violation of N. Y. Penal Law § 155.30. Petitioner was sentenced as a second felony offender to an indeterminate term of imprisonment of ten to twenty years on the Robbery in the First Degree count, and concurrent terms of two to four years on the Robbery in the Third Degree and Grand Larceny counts. Petitioner has completed his term of imprisonment.

At trial:

Officer Cardo testified that, at around five a.m. on October 17, 1987, he responded to a radio call of an assault in progress and found four individuals arguing over a Toyota that was parked in front of a Dunkin’ Donuts on College Point Avenue in Brooklyn, NY. Three of the individuals were black males and one was a white male. The white male, Mr. Clarke, told Officer Cardo that, as he was walking to his car, he was approached by four individuals, the three black males who were present and one person who fled after robbing him. The robber was carrying a knife and wearing black pants, a shirt, and had a Ninja mask over his face. He was approximately six feet tall and around thirty years old. Mr.. Clarke gave the individual with the knife his wallet, which contained approximately $1500 in cash. After the man took his wallet, he pulled the Ninja mask off of his head which allowed Mr. Clarke to see his face. The three black males were placed under arrest and were subsequently transported to the 109th precinct.

And:

Mr. Clarke testified that he never told the police or anyone else that petitioner was wearing a Ninja mask. Mr. Clarke did not see petitioner take anything out of his car. Petitioner did not have anything on his head when Mr. Clarke found him in the car or during the chase, and Mr. Clarke never told the police that there was anything on his head at that time.

And:

In summation, defense counsel began by stating that petitioner had admitted his criminal record and did not try to hide from the facts of his life. Defense counsel compared Officer Cardo’s testimony that Mr. Clarke told him that he was robbed near his car by a man wearing a Ninja mask with that of Officer Krien that Mr. Clarke told him that he saw only one individual in his car, he chased him, and the person stole his wallet at knife-point inside one of the project buildings. Defense counsel also pointed to the inconsistencies between Mr. Clarke’s testimony and that of both of the officers and how Mr. Clarke’s story changed over time. Counsel argued that these inconsistencies, petitioner’s knowledge of where Mr. Clarke lived and the car that he drove, and the implausibility of Mr. Clarke’s story, all provided reasonable doubt that a crime had occurred.

Concluding:

[T]his court holds that there has been a violation of due process based upon Brady v. Maryland for failure to turn over material impeachment evidence [related to Clarke’s criminal history]; that holding is sufficient in itself to require relief. In addition, on the facts of this case, there has also been a violation of due process based upon the admission of perjured testimony [by Clarke] which the prosecutor should have known was false.

Conclusion

The petition for a writ of habeas corpus is granted, and the judgment of conviction is vacated.

This 1996 appeal of bank robbery conviction was affirmed with mention of ninja masks

UNITED STATES OF AMERICA, Plaintiff-Appellee, v. DARIN AUSTIN, a/k/a DARNELL WIGGINS, a/k/a “D BABY”; DAVID CLEMENTS; and JASON JARVIS, Defendants-Appellants.
Nos. 94-4220, 94-4238, and 94-4278
UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT
81 F.3d 161

Filed- March 11, 1996

The Court writes:

Police recovered three firearms, and two black “ninja-type” ski masks from Austin’s room.

The Court also notes that the defendants watched the movie “Point Break” as “instructional” to develop their “modus operandi”.

point break movie

Finding no errors, the appeals court affirmed the conviction and sentences of all the defendants.

This 1995 case is the appeal of a criminal conviction involving a conspiracy to rob armored trucks at the Bank of New England, using Uzi’s and “ninja face masks”.

UNITED STATES, Appellee, v. ROBERT EMMETT JOYCE, Defendant – Appellant.
No. 94-2235
UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
70 F.3d 679

Decided – November 27, 1995

The opinion is written by Judge Dominguez:

Defendant Robert Emmett Joyce (“Joyce”) challenges the imposition in his sentence of a three-level upward adjustment, pursuant to U.S.S.G. § 3B1.1(b). Joyce seeks to have the adjustment reversed and the matter remanded for resentencing.

We hold that the lower court’s imposition of the three-level upward adjustment, based on Joyce’s role in the offense, is warranted. Consequently, we affirm

The Court’s reasoning in affirming the lower Court adjusted sentencing, is based on the defendant’s managerial role in the conspiracy:

There is no doubt that Joyce exercised managerial responsibilities “over the metaphorical assets of the criminal organization”. Joyce badgered David J. Ryan, a paid confidential government informant, to obtain armored truck route sheets, guard uniforms, and ninja face masks. Joyce further planned the crime to need at least three stolen vehicles, one of them a van with a sliding door (all to be “torched” at the end of the robbery) and a group of at least five experienced, reliable robbers in addition to himself using automatic weapons, including specifically among them, “Uzi submachine guns”

uzi smg

What makes a face mask into a “ninja face masks”? Presumably someone called them that, either in a submitted brief or in testimony? But the Court uses no quotes around the word “ninja” here. Contrast, the Court’s use of quotes around the word “torched” and “Uzi submachine guns”. This Court apparently feels that ninja is a common enough descriptor as to not need quotes.

Not surprising then that the Court rules against this defendant, affirming the lower Court in giving Joyce a lengthened sentence.

In my NinjaLaw post about a Ninja Hood, I wondered if labeling the hood a ninja hood is overly presumptive. Like calling a an object a burglar’s tool, it seems to imply an intent in the object before any action. Similarly the face masks in this case, are “ninja” because they are armed robbers?

After his conviction for possession of burglary tools, Mark Thomas sued Nebraska Police Officers (particularly Officer Griss) for planting the evidence. Thomas was arrested for not paying his hotel bill and so theft of services from the hotel. He was arrested in the hotel lobby. Evidence obtained from a bag taken from the hotel room included:

a Pickmaster lock kit containing lock-picking equipment, a lock pick gun, toe nail clippers, a Swiss army knife, a black ninja hood, a pair of black leather gloves, and other items.

MARK C. THOMAS, Plaintiff/Appellee, v. DALE HUNGERFORD, Individually and in his official capacity as police officer for the city of Kearney, Nebraska; MICHAEL KIRKWOOD, Individually and in his official capacity as police officer for the city of Kearney, Nebraska, Defendants, JEFF GRISS, Individually and in his official capacity as police officer for the city of Kearney, Nebraska, Defendant/Appellant.
No. 93-3232
UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT
23 F.3d 1450

Filed – May 11, 1994

Thomas’s amended complaint as stating a cause of action against Griss on two grounds: that Griss had conducted an inventory search of Thomas’s duffel bag that was not in accordance with established procedures, and that Griss had planted the black ninja hood and the “o” ring in the duffel bag. The district court denied Griss’s motion for summary judgment, and this appeal followed.

Noting in footnote #1:

Although the denial of a summary judgment motion is not a final judgment, a district court’s denial of a qualified immunity claim is an immediately appealable “final decision” within the meaning of 28 U.S.C. § 1291.

Reversing:

The order denying Griss’s summary judgment motion is reversed, and the case is remanded to the district court for entry of judgment dismissing the complaint.

Explaining about the planted evidence:

The district court also denied Griss’s motion for summary judgment on Thomas’s claim that Griss planted a black ninja hood and an “o” ring in Thomas’s duffel bag. The magistrate judge construed Thomas’s complaint to allege that because the hood and “o” ring did not appear on Ward’s inventory form, Griss must have planted the items. Griss argues that he is absolutely immune from this claim because the allegation that he planted evidence is simply an assertion that he committed perjury when he testified at Thomas’s trial about the events surrounding Thomas’s arrest. Thomas concedes that Griss would be entitled to absolute immunity on such a claim, for officers are absolutely immune from liability under 42 U.S.C. § 1983 for damages arising out of their alleged perjurious testimony at trial. Briscoe v. LaHue, 460 U.S. 325, 342, 75 L. Ed. 2d 96, 103 S. Ct. 1108 (1983). Thomas argues, however, that Griss did more than perjure himself, contending that Griss planted some of the evidence that the prosecutor used against him. Although absolute immunity may not shield Griss against such a claim, the district court should nevertheless have granted Griss’s summary judgment motion.

The inventory search was also found acceptable and not a violation of the Fourth Amendment, at least in part because the defendant himself asked to have the contents of the bag inventoried.

I think an “o” ring is a metal piece from a lock (in this case “a Kawneer-brand lock”) that can be used for breaking glass like car windows (see similarly Ninja rocks which will be mentioned in future case). But what makes a “black ninja hood” different from a mere black hood or black hood mask, this is not entirely clear to me, other than to further implicate that the defendant’s possessions are burglary tools. As if the tools themselves have intent, and this hood intended to be ninja.