United States v. Armen Bislamian

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 3, 2018
• Docket: 16-50106
• Status: Unpublished

Opinion

FILED NOT FOR PUBLICATION APR 03 2018 UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS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

2 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

3 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).

4 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.