                                                                           FILED
                           NOT FOR PUBLICATION                             NOV 02 2015

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U.S. COURT OF APPEALS



                            FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                        No. 14-50448

              Plaintiff - Appellee,              D.C. No. 3:09-cr-01971-W-1

  v.
                                                 MEMORANDUM*
MIKHAIL L. FELDMAN,

              Defendant - Appellant.


                   Appeal from the United States District Court
                     for the Southern District of California
                Thomas J. Whelan, Senior District Judge, Presiding

                           Submitted October 23, 2015**
                               Pasadena, California

Before: PREGERSON and TROTT, Circuit Judges and STAFFORD,*** Senior
District Judge.




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 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 William H. Stafford, Jr., Senior District Judge for the
U.S. District Court for the Northern District of Florida, sitting by designation.
      In 2009, Feldman pleaded guilty to possessing child pornography on his

computer. He was sentenced to 37 months in custody plus five years of supervised

release.

                                      Round 1
                                     2012 - 2013
      Four months after his release from prison, Feldman was back in court

because he violated a term of his supervised release. According to his probation

officer, he “willingly made the decision to repeatedly ignore directions from

probation and he continued to view pornographic material because he was unable

to control his urges.” The probation officer recommended “as an added

supervision tool to assist Mr. Feldman to remain law abiding” a Fourth

Amendment Waiver search condition “with or without a warrant, and with or

without reasonable or probable cause.”

      At a hearing on January 7, 2013, Feldman admitted using a computer

without permission. One of the websites he continued to access was one he looked

at before being arrested for his original offense. Because he had violated the

probation officer’s and the district court’s trust, the government urged that he

needed the Fourth Waiver provision to help bring him into compliance. The

probation officer pointed out that his family had enabled him to violate his terms.



                                          -2-
       Saying that the court and the probation officer would do everything it could

“to try to help you,” the court noted that there had “to be some consequences for

your just having, as you put it, the -- not being able to resist your urge to access

prohibited websites[,] I think that clearly justifies, at least for the time being, the

more stringent search and seizure condition.” The court held out as a carrot the

possibility that the condition could be removed “if he goes a year or so without

having a problem.” He did not appeal.

       On June 18, 2013, because he had been compliant, the parties stipulated that

the full Fourth Waiver could be changed to require only “reasonable suspicion.”

                                        Round 2
                                       2013-2014

       Before the year was out, Feldman was back in court with another problem.

This time probation caught him in his room with a weapon he made out of a sock

containing a combination lock, sort of a “soft” billy club. He admitted drinking

alcoholic beverages -- also a violation -- given to him by his sister. He also

admitted to continuing improperly to use a computer and to possessing a cellular

“smartphone” with Internet access capabilities. Probation reported that they had

done everything they could think of to try to help him find a job, but to no avail.

His supervision adjustment was described as “poor.” He routinely missed



                                            -3-
treatment appointments. The probation officer described him as “a danger to

himself and others,” and his behavior as “deceptive, reckless, and dangerous.” A

full Fourth Waiver was again recommended and imposed, with four more months

of custody.

      Feldman appealed the imposition of the full Fourth Waiver without the need

for reasonable suspicion. The matter was submitted without argument. We

affirmed. In a memorandum disposition, we said, “The record reflects that the

court considered Feldman’s arguments and adequately explained why the condition

was necessary in this case. Moreover, in light of Feldman’s multiple violations of

supervised release, the condition is reasonably supported by the need for deterrence

and protection of the public.” United States v. Feldman, 584 F. App’x. 838 (9th

Cir. 2014).

                                     Round 3
                                      2014

      On July 10, 2014, while his case was still on appeal and before we issued

our decision, Feldman was back in court. He was charged with continuing to use

an unauthorized computer, lying to the probation officer, and not following

directives. This time Judge Whelan gave him seven months and imposed the same




                                        -4-
restrictive full Fourth Waiver search condition, this just one day before we

affirmed the same disputed condition from Round 2.

         Now with worse facts, i.e. another violation, he appeals again. Counsel

waives off our previous decision and simply argues that the condition makes no

sense.

         Every word Judge Whelan uttered in this lengthy saga demonstrates that he

was trying to help Mr. Feldman, not punish him. As Judge Whelan said during

Feldman’s second revocation hearing, “The whole purpose of the supervised

release is to try to help him so he doesn’t get into trouble. . . . I think I am going

to modify some of his conditions to make sure he doesn’t get himself into trouble.”

The record refutes counsel’s attempt to label Judge Whelan’s action as a “blanket

automatic rule” which he imposed without thought. Judge Whelan tailored every

condition to Feldman’s repeated violations. Counsel’s disparaging attempts to

twist Judge Whelan’s words are not appropriate.

         AFFIRMED.




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