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

-- [ Page 2 ] --

• Sandy Shubb (@SandyShubb on Twitter), who is Judge Shubb's wife, both follows and is followed by @Nostalgistl;

• Vicki Shubb (@twostp4fun on Twitter), who also is Judge Shubb's daughter, both follows and is followed by @Nostalgistl;

• @flrdelis both follows and is followed by @SandyShubb and @AlisaShubb;

• Sandy Shubb both follows and is followed by @AlisaShubb and @flrdelis;9

• On August 5, 2015, @SandyShubb tweeted a photograph of her, Judge Shubb, and Ray Fosse at the Oakland Coliseum; the same photograph was also posted on the same day on the @wshubb Instagram account;

• Breann Moebius is Judge Shubb's career law clerk.'° The Twitter account at a~BreMoebius both follows and is followed by @Nostalgistl;

• @BreMoebius both follows and is followed by Chief Judge Morrison England's Twitter account (a~mcejr), which in turn also follows @Nostalgist1;

• On July 5, 2015, ~a Nostalgistl posted a photograph of Judge Shubb's wife in a restaurant with the caption: "Sand Dabs, Fried Oysters, and Clam Chowder at Spenger's in Berkeley after...." Also on July 5, 2015, the @wshubb Instagram account posted the same photograph., along with the caption: "Spenger's Fresh Fish Grotto Sand dabs, fried oysters, and clam chowder after the @athletics game";

• On July 19, 2015, @Nostalgistl tweeted a photograph of family on the train

on the way to an Oakland A's baseball game with the following heading:

"Taking the @Amtrak train on the @CapitolCorridor to the @Athletics game at the O.co Coliseum." The same photograph was posted on July 19, 9@wshubb does not follow @SandyShubb, nor does @SandyShubb follow @wshubb. Thus, it appears that Sandy Shubb limits her social media relationship to Judge Shubb's @Nostalgistl account.

(See Appellants' Mot. For Judicial Notice, Attach. 1.) lo

–  –  –

2015, to the @wshubb Instagram account with the following caption:

"Amtrak Taking the train to the A's game."

• At least two other former law clerks for Judge Shubb have Twitter accounts that follow and are followed by @Nostalgistl. (Warne Decl. ~( 34-35.) These examples are just some among many examples provided in the Warne Declaration, all of which are appropriately considered under Rule 901. Together, they overwhelmingly confirm that @Nostalgistl is Judge Shubb's account."

Notwithstanding the broad and pervasive indicia of reliability connecting Judge Shubb to @Nostalgistl, the government's argument essentially attempts to lure this Court into peering through agift-wrap tube, arguing "the blurry photograph" of 27 people on @Nostaglistl is insufficient to connect Judge Shubb to @Nostalgistl. But reviewing everything available to this Court reveals an entirely different pieture.i~ Indeed, the broad and connected assemblage of judicially noticeable social media accounts and postings is more than sufficient to "support a [factfinder or this Court] in the belief that the documents are what [Appellants] say[] they are." Perfect 10, Inc. v. Cybernet Ventures, Inc., 213 F.

"Defendants request that this Court review the printouts of the social media accounts attached to the concurrently filed Declaration. That review will further buttress what is plainly laid out in this brie£ 12 Were the government's hypothesis correct, a senior U.S. District Court judge is being stalked and his personal computers and mobile devices have all been hacked and his identity has been so thoroughly hijacked that those closest to him have been fooled for years. This would undoubtedly constitute an emergency requiring action by the FBI and/or U.S. Marshals. With. such resources, the government could easily have proven in its opposition @Nostalgistl is counterfeit.

Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 13 of 17 Supp. 2d 1146, 1154(C.D. Ca1. 2002)(finding a declaration sufficient to establish the authenticity of webpage printouts where they contained dates of printing and web addresses of the documents).

–  –  –

"Inherent authority" connotes this Court's broad discretion to fashion appropriate remedies for situations such as these. These are the very "extraordinary circumstances" that dictate supplementation of an appellate record.

Where the trial court is engaged in conduct immediately following the issuance of the appealed-from order, inclusion of that conduct in the record is not an unauthorized augmentation but, rather, "reflects what actually occurred in the district court." Townsend v. Cotumbia Operations, 667 F.2d 844, 849(9th Cir.

1982)(holding that under Federal Rule of Appellate Procedure 10(e), record on appeal was properly augmented to include documents that were previously before the trial court, but that had not been filed.) Pursuant to their inherent equitable powers, the federal courts of appeal have the discretion to supplement the record on appeal as justice requires. LowYy v.

Ba~nha~t, 329 F.3d 1019, 1024(9th Cir. 2003)(recognizing the court's inherent authority to supplement the record in extraordinary cases).

Case: 15-15799, 11/27/2015, ID: 9772144, DktEntry: 64-1, Page 14 of 17

–  –  –

The government's opposition is a continuation of the gross misconduct that drove this litigation and necessitated this appeal. Among other things, the government states,"The header photo is a picture of a large group of people, only one of whom. may be Judge Shubb." The government states this even though one of the government's attorneys of record posed with Judge Shubb in this very photograph. Appellants do not seek judicial notice ofthe truth of the statements in social media. Indeed, Judge Shubb's April 17, 2015, Tweet was demonstrably false. But there is no reasonable dispute that @Nostalgistl is Judge Shubb's account. The fact is well known in the 1ega1 community, and can readily be confirmed by Judge Shubb and by the account's connection with others, including members of his family, a judge in the district, and by Judge Shubb's use of Nostalgistl in relation to other accounts wherein his identity is specifically revealed. All evidence supports this conclusion and the government has provided no contrary evidence. Accordingly, Appellants respectfully request that their Motion be granted in full and that the Court deny the government's request to strike any portion of Appellants' briefing.

–  –  –

When Not All Case Participants are Registered. for the Appellate CM/ECF System I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the Ninth. Circuit by using the appellate CM/ECF system on (date) November 27, 2015 Participants in the case who are registered CM/ECF users will be served. by the appellate CM/ECF system.

I further certify that some of the participants in the case are not registered CM/ECF users. I have mailed. the foregoing document by First-Class Mail, postage prepaid

to the following non-CM/ECF participants:

Mark Brnovich, Assistant U.S. Attorney USPX — Office of the US Attorney Two Renaissance Square, Ste. 1200 40 N. Central Ave.

Phoenix, AZ 85004-4408 Douglas Peterson 1275 W. Washington Street 2115 State Capitol Lincoln, NE 68509 Brad D. Schimel Wisconsin Dept. of Justice 17 West Main Street Madison, WI 53707

Signature (use "s/".

fog^mat) s/ Tammy R. Chacon

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