United States v. Ross Colby

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 2021
• Docket: 19-10224
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS FEB 25 2021 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-10224

Plaintiff-Appellee, D.C. No. 5:17-cr-00168-LHK-1 v.

ROSS COLBY, MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court for the Northern District of California Lucy H. Koh, District Judge, Presiding

Submitted February 12, 2021** San Francisco, California

Before: BERZON, CHRISTEN, and BADE, Circuit Judges.

Ross Colby was convicted by a jury of five counts of computer fraud against

Embarcadero Media and sentenced to time served. He now seeks to reverse his

conviction on the basis of prosecutorial misconduct. We have jurisdiction under 28

U.S.C. § 1291. We affirm.

* 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). Colby focuses on two statements by the government during closing

argument:

First, during the government’s rebuttal closing argument, the prosecutor told

the jury “[y]our role is . . . to find that the government has proven beyond a

reasonable doubt” that Colby is guilty. Defense counsel did not object to the

statement, so we review for plain error. See Fed. R. Crim. P. 52(b); United States v.

Olano, 507 U.S. 725, 730-36 (1993); United States v. Alcantara-Castillo, 788 F.3d

1186, 1190-91 (9th Cir. 2015).

This court evaluated similar statements to juries in United States v. Sanchez,

176 F.3d 1214 (9th Cir. 1999) and United States v. Gomez, 725 F.3d 1121 (9th Cir.

2013). In Sanchez, the prosecutor told the jury that “after the marshal’s service has

done their duty and the court has done its duty . . . you as jurors do your duty

and . . . find these defendants guilty.” 176 F.3d at 1224. In Gomez, the prosecutor

told the jury that “the United States has the burden of proof beyond a reasonable

doubt” and then stated: “Is the evidence that was presented in this case proof

beyond a reasonable doubt? Absolutely. And now it’s your duty to say the

defendant is guilty. . . .” 725 F.3d at 1131.

Sanchez found prosecutorial misconduct in part because the prosecutor “did

not tell the jury that it had a duty to find the defendant guilty only if every element

of the crime had been proven beyond a reasonable doubt.” 176 F.3d at 1225. In

2 contrast, Gomez found no error because, “[r]ead in context, the prosecutor was

arguing that, if the jury finds that the prosecution has met its burden of proving the

elements beyond a reasonable doubt, then it is the jury’s duty to convict.” 725 F.3d

at 1131 (emphasis in original).

This case is more similar to Gomez than to Sanchez. The prosecutor

correctly stated the jurors’ duty both before and after the statement in question.

And the jury notes confirm that the jury understood its duty. For both reasons,

Colby cannot meet his burden, on plain error review, to show that it is “more

probable than not that prosecutorial misconduct materially affected the fairness of

the trial.” United States v. Ruiz, 710 F.3d 1077, 1082 (9th Cir. 2013) (quoting

United States v. Younger, 398 F.3d 1179, 1190 (9th Cir. 2005)); see also United

States v. Minore, 292 F.3d 1109, 1117-19 (9th Cir. 2002).

Second, the government had the burden to prove that Colby’s actions

resulted in at least a $5,000 loss to Embarcadero Media. 18 U.S.C. §§

1030(a)(5)(A) & (c)(4)(B)(i). In the context of summarizing the extent of financial

harm, the prosecutor told the jury, “What do you think their subscribers thought of

this attack? What do you think their advertisers thought of this attack? What do

you think the people who might be . . . confidential sources for the journalists who

work at Embarcadero’s various papers thought of this attack? Put yourself in their

shoes.” (Emphasis added.) Defense counsel objected to the statement, so we

3 review for harmless error, with the burden as to prejudice on the government. See

United States v. Morales, 108 F.3d 1031, 1040 (9th Cir. 1997) (en banc); see also

Minore, 292 F.3d at 1117-19.

Colby frames the prosecutor’s statement as “ask[ing] jurors to identify

individually with the victims,” but, in context, that is not an accurate

characterization. Instead, the government was arguing about whether Embarcadero

Media, the alleged victim, had suffered reputational damage, and for that purpose

was asking the jurors to consider whether various people who interacted with

Embarcadero Media would think less of the company as a result of the attack.

Further, even if Colby were correct that “[t]he feelings of [subscribers,

advertisers, journalists, or informants] had no bearing on the economic loss which

the government was required to prove,” any error was harmless. The government

promptly withdrew the statement. The government also put on ample evidence

which showed the calculable economic damage was well above the $5,000

statutory threshold, without regard to any reputational injury. 18 U.S.C. §§

1030(a)(5)(A) & (c)(4)(B)(i). As a result, “it is more probable than not that the

error did not materially affect the verdict.” Morales, 108 F.3d at 1040.

AFFIRMED.