United States v. Armen Bislamian ( 2018 )

FILED
NOT FOR PUBLICATION
APR 03 2018
UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 16-50106
Plaintiff-Appellee, D.C. No. 2:14-cr-00494-PA-1
v.
MEMORANDUM*
ARMEN BISLAMIAN, AKA Eric Doski,
Defendant-Appellant.
Appeal from the United States District Court
for the Central District of California
Percy Anderson, District Judge, Presiding
Argued and Submitted February 15, 2018
Pasadena, California
Before: BERZON and BYBEE, Circuit Judges, and GLEASON,** District Judge.
Defendant Armen Bislamian appeals the imposition of three computer and
Internet search and monitoring conditions attached to his supervised release. He
maintains that the conditions are neither sufficiently narrowly tailored nor
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Sharon L. Gleason, United States District Judge for
the District of Alaska, sitting by designation.
reasonably related to his conviction for conspiracy to commit bank fraud, and so,
under 18 U.S.C. § 3583(d), must be vacated. We disagree and affirm.
1. As Bislamian concedes, he did not object to the three conditions before
the district court. We therefore may vacate the conditions only if their imposition
was in plain error. United States v. LaCoste, 821 F.3d 1187, 1190 (9th Cir. 2016).
We conclude that any potential error by the district court in this case was not
plain, “clear[,] or obvious.” United States v. Wolf Child, 699 F.3d 1082, 1095 (9th
Cir. 2012) (internal quotation marks omitted). Bislamian used various pieces of
digital technology to commit his crime: a “skimming device,” credit card encoding
equipment, data storage devices, and a personal computer. The district court thus
could have found a “reasonabl[e] relat[ionship]” between Bislamian’s crime and
criminal history, on the one hand, and the computer and computer-related devices
subject to search and seizure, on the other. 18 U.S.C. § 3583(d)(1).
The record does not definitively indicate that Bislamian used the Internet to
commit his crime, but the district court could have inferred as much. Bislamian
admitted to “obtain[ing] additional victim account holders’ information, including
credit profiles and zip codes, in order to facilitate the use of the re-encoded
[fraudulent] cards.” It would be reasonable to infer that Bislamian did so using the
Internet, or would do so in the future using the Internet, as non-Internet sources for
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the information obtained would be considerably more difficult to access. Given
that reasonable inference, the Internet monitoring conditions were “reasonably
related” to Bislamian’s crime and “involve[d] no greater deprivation of liberty than
[wa]s reasonably necessary.” 18 U.S.C. § 3583(d)(1), (d)(2); cf. United States v.
Bare, 806 F.3d 1011, 1017-20 (9th Cir. 2015).
2. Bislamian points to two cases—United States v. Sales, 476 F.3d 732 (9th
Cir. 2007), and United States v. Barsumyan, 517 F.3d 1154 (9th Cir. 2008)—and
maintains that they “make clear that it is improper to impose computer and Internet
restrictions where the underlying offense was not the direct result of using the
Internet.” Those cases do not make that point sufficiently clear to warrant reversal
on plain error review.
Barsumyan vacated a condition of supervised release under which the
defendant was prohibited from accessing “any computer or computer-related
devices in any manner . . . unless approved in advance.” 517 F.3d at 1157. All
that Barsumyan made “clear” was that “a mere nexus between the crime and a
computer does not justify proscribing the use of anything containing a circuit
board or microchips.” Id. at 1161 (emphasis added and footnote omitted). This
case concerns something else: searches of computers via real-time monitoring, not
prohibitions or restrictions on their use. “While we have on occasion vacated
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conditions of supervised release limiting or restricting the ability to use computers
and access the Internet, we have not taken such a heavy hand with respect to
general search conditions of personal computers.” Bare, 806 F.3d at 1017.
Similarly, Sales does not plainly require reversal. In Sales, aside from the
defendant’s use of his personal scanner and printer, “his unlawful activity did not
utilize any other devices, and in no way involved or relied upon the internet,
electronic bulletin boards, or other networks.” 476 F.3d at 736. The court
reasoned that, as to a computer monitoring condition imposed on the defendant,
“further tailoring and clarification [were] required” in light of the fact that the
monitoring apparently extended to any device used by the defendant “for work or
personal purposes,” whether or not he owned the device. Id. at 737. The
monitoring condition was also “overbroad in other respects”: “[T]o comply with
the Fourth Amendment, it must be narrowly tailored,” yet “the text g[ave] no
indication as to what kinds or degrees of monitoring [were] authorized,” despite
the fact that “monitoring software and/or hardware takes many forms, with greatly
varying degrees of intrusiveness.” Id. at 737-38; see also United States v. Quinzon,
643 F.3d 1266, 1271-72 (9th Cir. 2011) (reviewing the breadth of various
computer and Internet monitoring programs).
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Here, Bislamian’s monitoring conditions are more tailored than those in
Sales; Bislamian’s conditions list the particular devices to which they extend, and
they do not extend to devices owned by any employer. Further, unlike in Sales,
each condition could be related to the defendant’s crime and “the need for adequate
deterrence.” Bare, 806 F.3d at 1020. Bislamian’s crime certainly involved
computer use, and, unlike in Sales, the district court could properly infer that it
involved Internet use.
In light of the deferential standard of review applicable to this case, we
conclude that the district court did not plainly err by imposing the challenged
search conditions.
AFFIRMED.
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