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«~ 11 ~. ;~ ''.' 1 ~ i t ''. UNITED STATES OF AMERICA, Plaintiff—Appellee, vs. SIERRA PACIFIC INDUSTRIES,ET AL., Defendants —Appellants. On ...»

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Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 1 of 17

~ 11

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UNITED STATES OF AMERICA,

Plaintiff—Appellee,

vs.

SIERRA PACIFIC INDUSTRIES,ET AL.,

Defendants —Appellants.

On Appeal From the United States District Court

for the Eastern District of California, Sacramento

Hon. William B. Shubb Case No. 2:09-cv-02445-WBS-AC '' ~ ~ ~;~ i,! 1 ~;. ~ ~ ~.

Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 2 of 17 WILLIAM R. WARNS(SBN: 141280) BRACEWELL & GIULIANI LLP MICHAEL J. THOMAS(SBN: 172326) RICHARD W.BECKLER ANNIE S. AMARAL(SBN: 238189) D.C. Bar No. 262246 MEGHAN M.BAKER(SBN: 2437b5) JENNIFER T. LIAS DOWNEY BRAND LLP Virginia Bar No. 8560$ 621 Capitol Mall, 18th Floor 2000 K Street NW,Suite 500 Sacramento, CA 95814-4731 Washington, DC 20006-1809 Telephone: (916)444-1000 Telephone:(202)828-5874 Facsimile: (916)444-2100 Facsimile: (800)404-3970 bwarne@downeybrand.com richard.beckler~a bglip.com inthomas@downeybrand.com jennifer.lias@bgllp.com aamaral@downeybrand.coin mbaker@downeybrand.com Attorneysfor Appellant

SIERRA PACIFIC INDUSTRIES

RICHARD S. LINKERT(SBN: 88756) PHILLIP R. BON(JTTO(SBN: 109257) JULIA M. REEVES(SBN:241198) RUSHFORD & BONOTTO,LLP MATHENY SEARS LINKERT & 1010 Hurley Way, Suite 410 JAIME LLP Sacramento, CA 95825 Telephone: (916} 565-0590 3638 American River Drive Sacramento, CA 95864 Facsimile: (916)565-0599 Telephone: (916)978-3434 pbonotto@rushfordbonotto.com Facsimile: (916)978-3430 Attorneysfor Appellants Eunice Howell, rlinkert@mathenysears.com individually, UBA Howell Forest jreeves@mathenysears.com Harvesting Attorneysfor Appellants W. M. Beaty & Associates, Inc., a Corporation and Ann McKeever Hatch, As Trustee of The Hatch 1987 Revocable Trust, et al.

Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 3 of 17.; ~ ~

–  –  –

INTRODUCTION

II. ARGUMENT

A. Judge Shubb's Ownership of @Nostalgistl Can be Accurately and Readily Determined Through Judge Shubb Himself

B. The Evidence is Sufficiently Reliable to Warrant Judicial Notice

C. This Court has Inherent Authority to Supplement the Record............ 9 III. CONCLUSION

–  –  –

. ~ ~ ',:

Ligotti v. Garo alo, 562 F. Supp. d 204(D.N.H. 2008)

Lowry v. Barnhart, 329 F.3d 1019(9th Cir. 2003)

People v. Valdez, 135 Cal. Rptr. 3d 628 (Cal. Ct. App. 2011)

Per ect 10, Inc. v. Cybernet Ventures, Inc., 21 F. Supp. 2d 1146(C.D. Cal. 2002)

Tienda v. Texas, 358 S.W.3d 633 (Tex. Crim. App. 2012)

Townsend v. Columbia O e~ations, 667 F.2d 844(9th Cir. 1 ~82)

Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956(C.D. Cal. 2005)

1 '~ t' ~ t' 28 U.S.C. § 455(a)

1' ' - ~1 ~ ~ Fed. R. Evid.201(b)

Fed. R. Evid.901.

1 •, 1' Canon of Judicial Conduct 3(B)(5)

Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 5 of 17 '11 ~ The government's opposition to Appellants' Motion for Judicial Notice tracks the rest of its conduct in this matter. As is the case with its refusal to acknowledge gross malfeasance in both the investigation and prosecution of this "corrupt and tainted" matter, the government predictably refuses to acknowledge yet another truth —that @Nostalgistl is Judge Shubb's Twitter account. Again ignoring that its obligation is "not that it shall win a case, but that justice shall be done," the government preposterously claims that @Nostalgistl may not be Judge Shubb's account. It does so because it knows Judge Shubb's social media activity regarding this matter violates controlling Canons of Judicial Conduct and 28 U.S.C. § 455{a). It does so because winning here dictates that it now pretend the conduct never occurred. Thus, the government offers an evidence-free hypothesis that the Twitter account might be the work of a hacker. Its diversion is without merit. The evidence establishing @Nostalgistl as Judge Shubb's Twitter account is beyond compelling. It is obvious. Because the government's argument has no merit, Appellants request that this Court take judicial notice of the requested matters or supplement the record.

. ~;

This Court may judicially notice facts "generally known within the trial court's territorial jurisdiction," or facts that "can be accurately and readily Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 6 of 17 determined from sources whose accuracy cannot reasonably be questioned." Fed.

R. Evid. 201(b). Here, both conditions are satisfied.

A. Jude Shubb's Ownership of(a,Nostalgistl Can be Accurately and Readily Determined Through Judge Shubb Himself.

The government's opposition ignores the fact that Judge Shubb is a "source" through which this Court can "accurately and readily determine" that @Nostalgistl is his Twitter account, that he "follows" the prosecutors' Twitter account, and that, on April 17, 2015, he tweeted: "Sierra Pacific still liable for Moonlight Fire damages."' If Judge Shubb never did so, as the government hypothesizes — if @Nostalgistl really were the product of a hacker who somehow knows Judge Shubb's whereabouts at all times and has real-time access to all of Judge Shubb's personal video and photographic files —Judge Shubb can readily confirm as much.





If @Nostalgistl were created. by a hacker, Judge Shubb would have made this crime immediately known in order to preserve the integrity of the judicial system. That he has not done so, despite media attention regarding his post-order tweet, is perfectly consistent with what numerous members of the legal community, including an Eastern District of California's judge,law clerks, and numerous lawyers practicing in its federal court, have long known: Judge Shubb is 'If asked, it appears Judge Shubb would be obliged to confirm as much under Canon of Judicial Conduct 3(B)(5)("A judge should take appropriate action upon learning of reliable evidence indicating the likelihood that a judge's conduct contravened this Code....").

–  –  –

an active user of social. media and operates the @Nostalgistl Twitter account. This fact has never been a secret. Indeed, it has been an open topic of conversation and interest. For this reason, at least before Appellants' Opening Brief was filed: the President of the Sacramento Federal Bar Association followed @Nostalgistl; the publisher of the widely-read Eastern District of California Blog followed @Nostalgist1; the Eastern District's Chief Judge, Morrison C. England, Jr., follows @Nostalgistl from his @mcejr Twitter account; Judge England allows @Nostalgistl to follow him at @mcejr~; Judge Shubb's career law clerk, Breann Moebius, follows @Nostalgist1 from her @BreMoebius Twitter account;

@Nostalgistl follows @BreMoebius; several former law clerks of Judge Shubb follow or followed @Nostalgist l,and @Nostalgistl follows these former law clerks. (See Supp. Decl. of William R. Warne "Warne Decl."'~ 34-35.) While these connections obliterate the opposition, the issue can accurately be confirmed by asking Judge Shubb himself.. Judicial notice is thus appropriate. See Fed. R.

Evid. 201(b).

B. The Evidence is Sufficiently Reliable to Warrant Judicial Notice.

The government argues the indicia of reliability associated with the @Nostalgistl Twitter account is insufficient for this Court to reliably conclude it ~ Chief Judge England's Twitter account at @mcejr is unlike Judge Shubb's because Judge England engages in very little activity(Judge England has never posted a Tweet on the account) and never comments on legal cases.

–  –  –

belongs to Judge Shubb. The government's arguments are without merit. Courts have frequently authenticated social media postings through photos, posting activity, linked accounts, content and context, and references known only to the alleged author.3 Federal Rule of Evidence 901 explains that,"[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is." Subdivision (b)(4} provides "[t]he appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances," can be used to authenticate such postings.

Because Judge Shubb actively uses social media, authentication here is rather simple.4 Google searches for @Nostalgistl tweet, @Nostalgistl twitter, See, e.g., Tienda v. Texas, 358 S.W.3d 633,637(Tex. Crim. App. 2012)(finding MySpace web pages sufficiently self-authenticated based on mention of events, pictures, and references to nicknames within those pages); People v. Valdez, 135 Cal. Rptr. 3d 628,632-34 (Ca1. Ct. App. 2011)(holding printouts of MySpace web pages, including photograph, were sufficiently authenticated to be admissible); see also Ligotti v. Garofalo, 562 F. Supp. 2d 204,212 n.15(D.N.H. 2008)(judicially noticing videos on a news web page); Wible v. Aetna Life Ins. Co., 375 F. Supp. 2d 956, 965-66(C.D. Cal. 2005)(judicially noticing various web pages including Amazon web pages).

Shubb is the listed owner of the domain name sacramentosolons.com, 4 Judge which hosts a website dedicated to a Sacramento baseball team that played from 1903 to 1960. The site has a copyright notice "U 2003 William B. Shubb." Judge Shubb has a public Instagram page at "@wshubb" that contains numerous photographs of him posing with family at baseball outings, restaurants, social affairs and events he has held within his federal courtroom. Judge Shubb also has at least one more protected Twitter account at @wshubb, a fact which the government concedes. Judge Shubb also maintains an active YouTube channel Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 9 of 17 @wshubb tweet, wshubb Instagram, wshubb pictures, wshubb, and additional searches (including the names of the individuals and social media accounts described therein) result in the following non-exhuastive connections, postings, photographs, and videos, all of which separately and together provide more than sufficient indicia of reliability showing that @Nostalgistl is Judge Shubb.

• The header photo for @Nostalgistl is a photograph ofthe 2013 "Seersucker Thursday" event, organized. by Judge Shubb at Vic's Ice Cream in Sacramento. Judge Shubb's upper torso is directly above the baseball.

Importantly —and notwithstanding what it claims in its opposition —the government knows this: in this same photograph, standing fifth from the right, wearing sunglasses and a white hat, is none other than AUSA Matthew Segal, counsel of record for the United States on this appeals Additionally, in the same photograph, the third person from the right is Judge Kimberly Mueller, who handled portions of the Moonlight Fire matter. Moreover, Judge Shubb's career law clerk, ~reann 1Vloebius, is front and center holding her baby. Finally, according to the website of Larissa Shubb, who is Judge Shubb's daughter, Larissa Shubb took this photograph — a fact she then confirms by providing the full high-definition photograph on her site. (See Warne Decl. ~ 8, Ex. 3.)

• The profile photo for @Nostalgistl is a baseball that has the Declaration of Independence emblazoned upon it, a perfect symbol for aself-described "baseball nostalgist." Of course, the name "~a Nostalgistl" is also the that bears a name very similar to the account at issue here. Entitled "Nostalgistl938," Judge Shubb's public YouTube channel includes over fifty close-up videos of Judge Shubb singing nostalgic.songs as he plays a ukulele, most of which are linked directlyfrom his Twitter account at @NostalgistL These online accounts, particularly @Nostalgistl, have for years been enmeshed with other public social media accounts of Judge Shubb's wife and children. (See Warne Decl. ~ 6-36.) 5 AUSA Segal clearly knew why he was there, and. who he was standing by, yet the government says that the individual in the photograph may be Judge Shubb.

–  –  –

perfect Twitter handle for this self-described nostalgist.b

• The majority of the videos on Judge Shubb's YouTube Channel Nostalgist1938 are linked on the @Nostalgistl Twitter feed. Based on the dates of when @Nostalgistl tweets the links to those videos, Judge Shubb's practice is to load the videos on YouTube first and then, on the same day or a few days later, link to them from @Nostalgistl so as to notify his Twitter followers of their existence. (Warne Decl. ~ 11.) Although the.pdf images of the Twitter feed provided with Appellants' Motion as Attachments 2 and 3 are not active hyperlinks, the videos can all be found at Judge Shubb's "Nostalgist1938" YouTube channel.

• On July 2, 2015, @Nostalgistl re-tweeted a link to a speech by Judge Shubb's daughter Alisa Shubb;

• Alisa Shubb (@AlisaShubb on Twitter), who is Judge Shubb's daughter,$ both follows and is followed by @Nostalgistl;

• Larissa Shubb (@flrdelis on Twitter), who also is Judge Shubb's daughter, both follows and is followed by @Nostalgistl. Larissa Shubb also maintains an Instagram account "flrdelis" and, on April 27, 2014, posted a photograph of herself and Judge Shubb, stating "pre-race selfie with sister and dad";

6 Judge Shubb gave an interview for a KVIE public television baseball documentary. His bio for the documentary lists him as "Baseball NostalgistlDist.

Court Judge." (See Warne Decl. ~ 7; The Golden Game, KVIE Public Television, httpJ/www.kvie.orglprograms/kvie/viewfinderlgolden_game/(last visited Nov. 25, 2015).) ~ On July 27, 2014, @Nostalgistl tweetied,"Now,to honor America, please risE and remove your caps as @Nostalgistl plays our National Anthem on the ukulele."

The post provides a link to Judge Shubb's YouTube channel. where he plays the national anthem on the ukulele. Although this particular video does not show Judge Shubb's face, confirming that @Nostalgistl is Judge Shubb is easily accomplished by simply listing and by also comparing it to the surrounding videos.

g (See also Warne Decl. ~(~ 4, 21; Shubb Family Tree, Shubb Family Tree Official Website, http://lchr.orgia/38/jo/photos8.htm1(last visited Nov. 25, 2015) (displaying photos captioned "Shubb Family Tree," with photographs of Judge Shubb, his wife and daughters, captioned. with their names).) Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 11 of 17



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