United States v. Ivan Isho

• Court: Court of Appeals for the Ninth Circuit
• Decided: January 12, 2024
• Docket: 22-10150
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS JAN 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 22-10150

Plaintiff-Appellee, D.C. No. 1:18-cr-00233-DAD-SKO-1 v.

IVAN ISHO, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Eastern District of California Dale A. Drozd, District Judge, Presiding

Submitted January 10, 2024** San Francisco, California

Before: SILER,*** CLIFTON, and M. SMITH, Circuit Judges.

Ivan Isho appeals his jury conviction and sentence for two counts of wire

fraud (18 U.S.C. § 1343), one count of false impersonation of a federal officer (18

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. Court of Appeals for the Sixth Circuit, sitting by designation. U.S.C. § 912), and one count of stalking (18 U.S.C. § 2261A(2)(B)). Because the

parties are familiar with the facts, we do not recount them here, except as

necessary to provide context to our ruling. We have jurisdiction pursuant to 28

U.S.C. §§ 1291 and 1294, and we affirm.

1. The district court did not err in providing its instructions on the federal

stalking charge. Although Isho argues that the district court failed to include a

“subjective intent to threaten” element in the jury instructions for federal stalking,

the district court did in fact require the jury to find per its instructions that Isho

subjectively had the intent to “kill, injure, harass, [or] intimidate” when making

repeated contact with N.M. As such, the instructions contained a “mental-state

element” that survives a First Amendment challenge, even if we assume without

deciding, as we do here, that true-threats case law applied to these facts.

Counterman v. Colorado, 600 U.S. 66, 73 (2023).

2. The district court did not err in requiring Isho, as a condition of supervised

release, to obtain permission from his probation officer before using a cell phone.

The condition of supervised release was neither overly broad nor violative of

Isho’s First Amendment rights. Isho used his cell phone to intimidate and contact

N.M. hundreds of times a day; the prohibition therefore has a nexus with the

underlying conviction. See United States v. LaCoste, 821 F.3d 1187, 1191 (9th

Cir. 2016) (“A district judge undoubtedly has the authority to stop a defendant

2 from disparaging his victims through communications directed to the victims

personally.”) Moreover, unlike the prohibitions in LaCoste and United States v.

Sales, 476 F.3d 732, 734 (9th Cir. 2007), which completely banned a defendant’s

access to the internet, here Isho can still exercise his First Amendment rights by

using a landline, desktop, or laptop to access the internet and communicate with

others. That the condition of supervised release restricts Isho’s freedom to some

degree by forbidding him from using the most convenient way to use the internet

or contact people does not render it unreasonable. See United States v. Terrigno,

838 F.2d 371, 374 (9th Cir. 1988) (“The mere fact that a condition restricts a

probationer’s freedom to perform otherwise lawful activities is not dispositive of

the reasonableness of the condition.”).

AFFIRMED.