Metropolitan News-Enterprise


Monday, November 25, 2019


Page 3


Ninth Circuit:

Judge Had No Jurisdiction Over Motion to Block Access to Releases


By a MetNews Staff Writer


Above is a portion of a news release issued in 2011 by the Office of U.S. Attorney for the Central District of California. The person who is the subject of the release, convicted swindler Richard A. Maize, appealed from the District Court’s Feb. 14, 2018 denial of his motion for an order to the Department of Justice to block online public access to such information on its website. The Ninth U.S. Circuit Court of Appeals on Thursday remanded the case, ordering the District Court to dismiss.


A former Beverly Hills mortgage banker who pled guilty to a role in a mammoth, multi-defendant fraud scheme has failed to gain a reversal by the Ninth U.S. Circuit Court of Appeals of the denial of his motion for an order cutting-off public electronic access to press releases on his case issued by the U.S. Attorney’s Office—but the appeals court did not reach the merits of his contentions.

Rather, a three-judge panel said Thursday in a memorandum opinion in United States v. Maize, 18-50062, that the District Court for the Central District of California had been without jurisdiction to entertain the motion.

The moving party was Richard A. Maize who pled guilty in 2007 to bank fraud and other offenses stemming from his part in gaining approval of inflated loans, in furtherance of a conspiracy, for which he received hundreds of thousands of dollars in kickbacks. He was sentenced in 2011 to a year-and-a-half in a penitentiary, ordered to pay $4 million in restitution, and placed on three years of supervised release after serving his sentence.

On the last day of that three-year period, he made a motion, under the case number of the criminal proceeding against him, for an order to the Department of Justice (“DOJ”) to block access to the archived press releases.

Maize’s Contentions

Maize contended that the availability of the information constitutes cruel and unusual punishment in violation of the Eighth Amendment, offends the separation of powers doctrine, denies him due process, and unlawfully invades his privacy.

His Dec. 10, 2017 memorandum of points and authorities in support of the motion says:

“In perpetually publishing information about Mr. Maize’s criminal conduct by effectively pinning press releases to the top of various internet search engines…, the government is continually punishing Mr. Maize in a manner not authorized by statute. The only punishments authorized for his crimes are found in the vesting statutes and the sentence imposed by this Court, neither of which include public notification of his criminal activity any time his name is searched on the internet.

“The Department of Justice cannot unilaterally impose a punishment on Mr. Maize, as it has done here. In doing so, the Department of Justice has overstepped the executive’s constitutional role in sentencing, treading on the powers granted to the judiciary by Congress.”

The memorandum adds:

“The continuing public availability of these news releases and press releases also violates Mr. Maize’ constitutional right to privacy and due process of law. There is a constitutionally protected zone of privacy, sounding in due process and limits on government action.”

 Judge Philip S. Gutierrez denied the motion without explanation.

Ninth Circuit Opinion

Thursday’s opinion quotes the U.S. Supreme Court’s 1994 opinion in Kokkonen v. Guardian Life Insurance Company of America as saying that a court may exercise ancillary jurisdiction “(1) to permit disposition by a single court of claims that are, in varying respects and degrees, factually interdependent; and (2) to enable a court to function successfully, to manage its proceedings, vindicate its authority, and effectuate its decrees.”

The opinion observes:

“That the criminal case led to the post-plea actions by the DOJ was insufficient to create ancillary jurisdiction….[T]he criminal case and the motion to compel were not incidental to each other or factually interdependent….The issue in the criminal case was whether Maize was guilty of the charged crimes, and the issue in the motion to compel is whether the effects of DOJ’s actions constituted punishment. Resolving the motion to compel does not enable the district court to function successfully. Before Maize filed the motion, there were no proceedings to manage, no court authority to vindicate, and no decrees to effectuate. In sum, Maize failed to establish that the district court could legitimately exercise jurisdiction to review the motion to compel filed after completion of the sentence in the criminal case.”

The case was remanded for the purpose of the District Court ordering dismissal for lack of jurisdiction.


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