                                                                           FILED
                           NOT FOR PUBLICATION                              JUN 25 2010

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 09-10324

              Plaintiff - Appellee,              D.C. No. 2:06-CR-00100-RCJ-
                                                 (RJJ)-1
  v.

MAYNARD MARTIN RICHARDS,                         MEMORANDUM *

              Defendant - Appellant.



                    Appeal from the United States District Court
                                    for Nevada
                           Robert Clive Jones, Presiding

                        Argued and Submitted June 7, 2010
                              Pasadena, California

Before: NELSON and GOULD, Circuit Judges, and DOWD, Senior District
Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
       **
             The Honorable David D. Dowd, Jr., Senior United States District
Judge for the Northern District of Ohio, sitting by designation.
      This appeal challenges the sentencing decisions of the district court

following the defendant’s plea of guilty to one count in the indictment charging

Fraud by Wire, Deprivation of Honest Services and Aiding and Abetting in

violation of 18 U.S.C. § 1343, § 1346 and § 2.

      Three years after the return of the indictment, the defendant entered a guilty

plea pursuant to the provisions of Criminal Rule 11(c)(1)(C), which provides in

part, that where the parties “agree that a specific sentence ... is the appropriate

disposition of the case ... such a recommendation ... binds the court once the court

accepts the plea agreement.” The negotiated written plea agreement provided that

should the court accept the defendant’s plea under the terms of the agreement, the

court will not impose a sentence that includes a term of imprisonment, but further

provided that “this provision does not otherwise bind the court ... or otherwise limit

its discretion to ... the imposition of a term of probation that includes any or all of

the mandatory and discretionary conditions set forth in Title 18, United States




                                            2
Code Section 3563.”1 The district court subsequently agreed to abide by the “C”

Plea Agreement and sentenced the defendant to a term of probation for five years

with the condition that the defendant would reside in a community corrections

facility for a period 12 months with work release privileges.

      During the sentencing hearing that followed the district court’s acceptance

of the “C” agreement, former Nye County Commissioner, Candice Trummell, over

the objection of counsel for the defendant, provided extensive testimony about the

conduct of the defendant, including the fact that she had been harassed by his

“publishing ... harassing, intimidating lies about me and my family. I have been

harassed via his newspaper for years since his indictment.” It is without dispute

that former Commissioner Trummell had been the subject of the defendant’s



      1
          18 U.S.C. Section 3563(b) provides:

               (b) Discretionary conditions. The court may provide, as
               further conditions of a sentence of probation, to extent
               that such conditions are reasonably related to the factors
               set forth in section 3553(a)(1) and (a)(2) and to the extent
               that such conditions involved such deprivations of liberty
               or property as are reasonably necessary for the purposes
               indicated in section 3553(a)(2), that the defendant -- ...

               (11) reside at, or participate in the program of, a
               community corrections facility (including a facility
               maintained or under contract to the Bureau of Prisons)
               for all or part of the term of probation; ...

                                            3
efforts to change the zoning laws that would permit the defendant to build and

operate a brothel in Nye County. Trummell cooperated with the F.B.I. leading to

the indictment and arrest of the defendant. For reasons that are not apparent in the

record, the lapse of time from the defendant’s indictment until his plea of guilty

was nearly three years, and apparently, it was during this delay that former

Commissioner Trummell contended that she had been subjected to newspaper

harassment by the defendant.

      The district court’s conditions in connection with his period of probation,

included the following declaration:

             ... You shall not make any public comment regarding
             Ms. Trummell or any of her family members, whether
             published in a newspaper or otherwise. You will make --
             during the term of your probation, 5 years you will make
             no public comment regarding Ms. Trummell or her
             family. The purpose under (b), and particularly (b)(22),
             is because you have the capability and capacity and
             propensity to make negative comment about the person
             who was involved in your investigation and who was the
             target of your attempted illegal bribery. That would be
             wholly improper and an attempt to circumvent the
             purposes of rehabilitation for which these conditions are
             imposed. You will make no public comment during
             these 5 years regarding Ms. Trummell or her family.




                                          4
      A threshold issue is whether the defendant waived his right of appeal

consistent with the written plea agreement and his subsequent acknowledgments

that he understood that he had waived his right of appeal.

      The Court finds footnote two in the case of United States v. Jeronimo, 398

F.3d 1149, 1153 (9th Cir. 2005) relevant. Judge Gould, writing for the Court,

instructed:

              There are a few well-established exceptions to appeal
              waivers under our case law. For example, a waiver of
              appeal will not bar an appeal where the defendant’s
              guilty plea was not taken in compliance with Rule 11 of
              the Federal Rules of Criminal Procedure. United States
              v. Portillo-Cano, 192 F.3d 1246, 1252 (9th Cir. 1999)
              (holding that waiver of right to appeal will not preclude
              an appeal where defendant’s plea allocution did not
              conform to the requirements of Rule 11). We have also
              held that where a judge advises a defendant, without
              qualification, that he or she has a right to appeal, the
              defendant will be deemed to have such a right even
              though it was waived in the plea bargain. United States
              v. Buchanan, 59 F.3d 914, 917-18 (9th Cir. 1995).
              Additionally, a defendant can appeal his or her sentence
              notwithstanding a waiver of the right to appeal where the
              sentence imposed violates the law, United States v.
              Littlefield, 105 F.3d 527, 528 (9th Cir. 1997), or is not in
              accordance with the negotiated agreement. United States
              v. Bolinger, 940 F.2d 478, 480 9th Cir. 1991). (Emphasis
              added.)

      After a review of the record, the Court finds that the defendant waived his

right of appeal with respect to the sentence to a period of 12 months in community


                                           5
confinement, but that in any event, the district court’s sentence of a period of

probation with 12 months of community confinement did not violate the terms of

the written plea agreement. Accordingly, the Court AFFIRMS that part of the

sentence providing for probation, coupled with 12 months community

confinement, and it is of limited consequence whether the defendant waived his

right of appeal given our conclusion that the sentence, other than that which relates

to the First Amendment issues was a valid sentence under the terms of the Plea

Agreement.

      With respect to the First Amendment issue, the conclusion of this panel is

that the restriction imposed upon the defendant, with respect to public comments

concerning Candice Trummell, violates the defendant’s First Amendment rights.

The recent decision of our colleagues in Rodriguez v. Maricopa County

Community College District, 605 F.3d 703 (9th Cir. 2010), reflects our continuing

commitment to the protections of the First Amendment in the context of written

commentary, even when the written commentary is inflammatory and

discriminatory. Against the background of Rodriguez, the condition of probation




                                           6
restricting the defendant’s First Amendment rights with respect to former Nye

Commissioner Trummell fails.2

      In conclusion, the defendant’s sentence to a term of probation for five years,

coupled with the requirement to serve 12 months in community confinement, is

AFFIRMED. The portion of defendant’s sentence restricting the right of the

defendant to make any public comment regarding Ms. Trummell or any of her

family members, whether published in a newspaper or otherwise, is VACATED

and REMANDED to the district court to modify the sentence by striking, as a

condition of probation, the requirement regarding public comments as to Ms.

Trummell or any members of her family.




      2
        We take note of the fact that Ms. Trummell is apparently no longer a public
official, and any commentary by the defendant concerning Ms. Trummell might
well subject the defendant to either slander or libel actions.

                                         7
