source: Caselaw Access Project

author: GRABER, Circuit Judge:

license: Public Domain

text:
    FACEBOOK, INC., a Delaware corporation, Plaintiff-Appellee, v. POWER VENTURES, INC., DBA Power.com, a California corporation; Power Ventures, Inc., a Cayman Island corporation, Defendants, and Steven Suraj Vachani, an individual, Defendant-Appellant. Facebook, Inc., a Delaware corporation, Plaintiff-Appellee, v. Power Ventures, Inc., DBA Power.com, a California corporation, Defendant, and Power Ventures, Inc., a Cayman Island corporation; and Steven Suraj Vachani, an individual, Defendants Appellants.
    No. 13-17102, No. 13-17154
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 9, 2015 San Francisco, California
    Filed July 12, 2016
    Amended December 9, 2016

      Amy Sommer Anderson (argued), Aro-plex Law, San Francisco, California; Steven Vachani (argued pro se), Berkeley, California, for Defendants-Appellants.
    Eric A. Shumsky (argued), Orrick, Her-rington & Sutcliffe LLP, Washington, D.C.; I. Neel Chatterjee, Monte Cooper, Brian P. Goldman, and Robert L. Uriarte, Orrick, Herrington & Sutcliffe LLP, Men-lo Park, California, for Plaintiff-Appellee.
    Jamie L. Williams (argued), Hanni M. Fakhoury, and Cindy A. Cohn, Electronic Frontier Foundation, San Francisco, California, as and for Amicus Curiae.
    Before: SUSAN P. GRABER, KIM McLANE WARDLAW, and MARY H. MURGUIA, Circuit Judges,
   ORDER

The opinion filed July 12, 2016, and published at 828 F.Bd 1068, is amended by the opinion filed concurrently with this order.

With these amendments, the panel has voted to deny the petition for panel rehearing and rehearing en banc.

The full court has been advised of the petition for rehearing en banc, and no judge of the court has requested a vote on it.

The petition for panel rehearing and rehearing en banc is DENIED. No further petitions for panel rehearing or rehearing en banc shall be entertained.

OPINION

GRABER, Circuit Judge:

One social networking company, Face-book, Inc., has sued another, Power Ventures, Inc., over a promotional campaign. Power accessed Facebook users’ data and initiated form e-mails and other electronic messages promoting its website. Initially, Power had implied permission from Face-book. But Facebook sent Power a cease and desist letter and blocked Power’s IP address; nevertheless Power continued its campaign. Facebook alleges that Power’s actions violated the Controlling the Assault of Non-Sohcited Pornography and Marketing Act of 2003 (“CAN-SPAM”), the Computer Fraud and Abuse Act of 1986 (“CFAA”), and California Penal Code section 502. We hold that Power did not violate the CAN-SPAM Act because the transmitted messages were not materially misleading. We also hold that Power violated the CFAA and California Penal Code section 502 only after it received Face-book’s cease and desist letter and nonetheless continued to access Facebook’s computers without permission. Accordingly, we affirm in part, reverse in part, and remand to-the district court. \ .

BACKGROUND

Defendant Power Ventures, a corporation founded and directed by CEO Steven Vachani, who also is a defendant here, operated a social networking website, Power.com. The concept was simple. Individuals who already used other social networking websites could log on to Power.com and create an account. Power.com would then aggregate the user’s social networking information. The individual, a “Power user,” could see all contacts from many social networking sites on a single page. The Power user thus could keep track of a variety of social networking Mends through a single program and could click through the central Power website to individual social networking sites. By 2008, the website had attracted a growing following.

Plaintiff Facebook also operates a social networking website, Facebook.com. Face-book users, who numbered more than 130 million during Power’s promotional campaign, can create a personal profile—a web page within the site—and can connect with other users. Facebook requires each user to register before accessing the website and requires that each user assent to its terms of use. Once registered, a Facebook user can create and customize her profile by adding personal information, photographs, or other content. A user can establish connections with other Facebook users by “friending” them; the connected users are thus called “friends.”

Facebook has tried to limit and control access to its website. A non-Facebook user generally may not use the website, to send messages, post photographs, or othenyise contact Facebook users through their profiles. Instead, Facebook requires third-party developers or websites that wish to contact its users through its site to enroll in a program called Facebook Connect. It requires these third parties to register with Facebook and to agree to an additional Developer Terms of Use Agreement,

In December 2008, Power began a promotional campaign to attract more traffic to its website; it hoped that Facebook users would join its site. Power placed an icon on , its website with a promotional message that read: “First 100 people who bring 100 new friends to Power.com win $100.” The icon included various options for how a user could share Power with others. The user could “Share with friends through my photos,” “Share with friends through events,” or “Share with friends through status.” A button on the icon included the words “Yes, I do!” If a user clicked the “Yes, I do!” button, Power would create an event, photo, or status on the user’s Facebook profile.

In many instances, Power caused a message to be transmitted to the user’s friends within the Facebook system. In other instances, depending on a Facebook user’s settings, Facebook generated an e-mail message. If, for example, a Power user shared the promotion through an event, Facebook generated an e-mail message to an external e-mail account from the user to friends. The e-mail message gave the name and time of the event, listed Power as the host, and stated that the Power user was inviting the recipient to this event. The external e-mails were form e-mails, generated each time that a Facebook user invited others to an event. The “from” line in the e-mail stated that the message came from Facebook; the body was signed, “The Facebook Team.”

On December 1, 2008,' Facebook first became aware of Power’s promotional campaign and, on that same date, Face-book sent a “cease and desist” letter to Power instructing Power to terminate its activities. Facebook tried to get Power to sign its Developer Terms, of Use Agreement and enroll in Facebook Connect; Power resisted. Facebook instituted an Internet Protocol (“IP”) block in an effort to prevent Power from accessing the Face-book website from Power’s IP address. Power responded by switching IP addresses to circumvent the Facebook block. Through this period, Power continued its promotion even though it acknowledged that it took, copied, or made use of data from Facebook.com without Faeebook’s permission.

Power’s campaign lasted less than two months. On December 20, 2008, Facebook filed this action. Toward the end of January 2009, Power ended its campaign. In April 2011, Power ceased doing business altogether. In total,- more than 60,000 external e-mails promoting Power were sent through the Facebook system.' An unknown number of internal Facebook messages were also transmitted.

In this action, Facebook alleged violations of the CFAA, the CAN-SPAM Act, and California Penal Code section 502 and moved for summary judgment. The district court granted summary judgment to Face-book on all three claims. The district court awarded statutory damages of $3,031,350, compensatory damages, and permanent in-junctive relief, and it held that Vachani was personally liable for Power’s actions. Discovery disputes persisted after the judgment; a magistrate judge ordered Power to pay $39,796.73 in costs and fees for a renewed Federal Civil Procedure Rule 30(b)(6) deposition. Power filed a motion for reconsideration, which the district court denied. Defendants timely appeal both the judgment and the discovery sanctions.

STANDARD OF REVIEW

We review de novo a grant of summary judgment. Johnson v. Poway Unified Sch. Dist., 658 F.3d 954, 960 (9th Cir. 2011). We may affirm the judgment on any ground supported by the record and presented to the district court. Venetian Casino Resort L.L.C. v. Local Joint Exec. Bd., 257 F.3d 937, 941 (9th Cir. 2001).

DISCUSSION

A. CAN-SPAM Act

The CAN-SPAM Act grants a private right of action for a “provider of Internet access service adversely affected by a violation of section 7704(a)(1) of this title.” 15 U.S.C. § 7706(g)(1). In relevant part, § 7704(a)(1) makes it unlawful for “any person to initiate the transmission, to a protected computer, of a commercial electronic mail message, or, a transactional or relationship message* that contains, or is accompanied by, header information that is materially false or materially misleading.”

The CAN-SPAM Act “does not ban spam outright, but rather provides a code of conduct to regulate commercial email messaging practices.” Gordon v. Virtumundo, Inc., 575 F.3d 1040, 1047-48 (9th Cir. 2009). To prove a violation of the statute, Facebook cannot simply identify excessive electronic messages. Rather, assuming all facts in favor of the non-moving party, the offending messages must be “materially false” or “materially misleading.” 15 U.S.C. § 7704(a)(1).

The statute provides that

the term “materially,” when used with respect to false or misleading header information, includes the alteration or concealment of header information in a manner that would impair the ability of an Internet access service processing the message on behalf of a recipient, a person alleging a violation of this section, or a law enforcement agency to identify, locate, or respond to a person who initiated the electronic mail message or to investigate the alleged violation, or the ability of a recipient of the message to respond to a person who initiated the electronic message.

Id. § 7704(a)(6). A “from” line “that accurately identifies any person who initiated the message shall not be considered materially false or materially misleading.” Id. § 7704(a)(1)(B). And, further, “header information that is technically accurate but includes an originating electronic mail address, domain name, or Internet Protocol address the access to which for purposes of initiating the message was obtained by means of false or fraudulent pretenses or representations shall be considered materially misleading.” Id. § 7704(a)(1)(A).

Here, two types of messages might rise to the level of “materially misleading” under the CAN-SPAM Act: external e-mails sent when Power caused a Facebook event to be created and internal Facebook messages authored by Power that Power users transmitted to their Facebook friends.

We first consider the external emails. Facebook generated these e-mails whenever a Power user created a Face-book event, promoting Power. The “from” line of the e-mails identified “Facebook” as the sender. The body was signed “Thanks, The Facebook Team.” The header stated that a friend of the recipient invited her to an event entitled “Bring 100' friends and win 100 bucks!”

Because the statute provides that a “from” line that accurately identifies a person who initiated the message is not misleading, it is relevant whether Facebook, identified in the from line, initiated the messages. The statute defines “initiate” as “to originate or transmit such message or to procure the origination or transmission of such message, but shall not include actions that constitute routine conveyance of such message.” Id. § 7702(9). It provides that “more than one person may be considered to have initiated a message.” Id. A Power user gave Power permission to share a promotion, Power then accessed that user’s Facebook data, and Facebook crafted and caused form e-mails to be sent to recipients. These actions all go beyond the routine conveyance of a message. All the actions require some affirmative consent (clicking the “Yes, I do!” button) or some creative license (designing the form e-mails). Because more than one person may be considered to have initiated the message, we hold that, within the meaning of the statute, Power’s users, Power, and Facebook all initiated the messages at issue.

Because Facebook (among others) initiated the messages, the “from” line accurately identified a person who initiated the messages. Accordingly, the “from” line is not misleading within the meaning of the statute. Similar reasoning also leads us to conclude that the header is technically accurate. Because a Power user consented to share Power’s promotion through an event invitation, a header line that stated that a recipient’s friend “invited” the recipient to the event does not conceal or misstate a creator of the e-mail. ,

It is true that the CAN-SPAM Act includes as materially misleading a technically accurate header that includes 'information accessed through false or fraudulent pretenses or representations. Id. § 7704(a)(1)(A). But Power users consented to Power’s access to their Facebook data. In clicking “Yes, I do!,” users gave Power permission to share its promotion through event invitations. On this record, Power did not use false pretenses or fraudulent representations to obtain users’ consent. Therefore, the external messages were not materially misleading within the meaning of the CAN-SPAM Act.

We next consider internal messages sent within the Facebook system. We can find these messages misleading only if they impaired the ability of the recipient to “respond to a person who initiated the electronic mail message” or the ability of Facebook to locate the initiator of the messages. Id. § 7704(a)(6). Two factors convince us that the messages are not misleading under this standard. First, the body of the messages included both Power’s name and a link to the Power website. A reasonable recipient could understand that Power had drafted the message or had some part in its construction.,Second, Facebook users who were identified as the senders did authorize the sending of these messages. It was not misleading for such users to be identified in internal messages sent through the Facebook system.

Because neither e-mails'' nor internal messages sent through Power’s promotional campaign were materially misleading, Power did not violate the CAN-SPAM Act. We reverse the district court on this claim and remand for entry of judgment in favor of Defendants.

B. CFAA

The CFAA prohibits acts of computer trespass by those who are not authorized users or who exceed authorized use. It creates criminal and civil liability for whoever “intentionally accesses a computer without authorization- or exceeds authorized access, and thereby obtains. ... information from any protected computer.” 18 U.S.C. § 1030(a)(2)(C). “The statute thus provides two ways of committing the crime of improperly accessing a protected computer: (1) obtaining access without authorization; and (2) obtaining access with authorization but then using that access improperly.” Musacchio v. United States, — U.S. —, 136 S.Ct. 709, 713, 193 L.Ed.2d 639 (2016). The CFAA provides a private right of action for “[a]ny person who suffers damage or loss by reason of a violation of this section.” 18 U.S.C. § 1030(g).

First, we hold that Facebook suffered a loss within the meaning of the CFAA. The statute permits a private right of action when a party has suffered a loss of at least $5,000 during a one-year period. Id. § 1030(e)(4)(A)(i)(I). The statute defines “loss” to mean “any reasonable cost to any victim, including the cost of responding to an offense, conducting a damage assessment, and restoring the data, program, system, or information to its condition prior to the offense, and any revenue lost, cost’ incurred, or other consequential damages incurred because of interruption of service.” Id. § 1030(e)(11). It is undisputed that Facebook employees spent many hours, totaling more than $5,000 in costs,, analyzing, investigating, and responding to Power’s actions. Accordingly, Facebook suffered a loss under the CFAA.

We next consider whether Power accessed Facebook’s computers knowing that it was not authorized to do so. We have previously considered whether a defendant has accessed a computer “without authorization” or in a manner that “exceeds authorized access” under the CFAA.

In LVRC Holdings LLC v. Brekka, 581 F.3d 1127 (9th Cir. 2009), an employee logged onto his employer’s computer, accessed confidential information, and sent emails from the computer to himself and his wife with the intention of starting a competing business. We held that a person is “without authorization” under the CFAA “when the person has not received permission to use the computer for any purpose (such as when a hacker accesses someone’s computer without any permission), or when the employer has rescinded permission to access the computer and the defendant uses the computer anyway.” Id. at 1135. Because the employee had sent emails while he still had authorized access to the company’s computers, his actions did not constitute unauthorized use and did not run afoul of the CFAA. Id. That fact was key; had the employee accessed company computers without express permission, he would have violated.the CFAA. “[I]f [the employee had] accessed LVRC’s information on the LOAJD website after he left the company in September 2003, [the employee] would have accessed a protected computer ‘without authorization’ for purposes of the CFAA.” Id. at 1136.

In United States v. Nosal, 676 F.3d 854 (9th Cir. 2012) (en banc) (“Nosal I”), a criminal case, we considered whether a group of employees who logged on to a work computer, downloaded information from a confidential database, and transferred it to. a competing business “exceeded] authorized access.” Id, at 856. Wary of creating a sweeping Internet-policy mandate, we applied the rule of lenity to the CFAA and reversed liability for the defendant. Id. at 863. The decision broadly described the application of the CFAA to websites’ terms of service. “Not only are the terms of service vague and generally unknown .., but website owners retain the right to change the terms at any time and without notice.” Id. at 862. As a result, imposing criminal liability for violations of the terms of use of a website could criminalize many daily activities. Accordingly, “the phrase ‘exceeds authorized access’ in the CFAA does not extend to violations of use restrictions. If Congress wants to incorporate misappropriation liability into the CFAA,, it must speak more clearly.” Id. at 863.

From those cases, we distill two general rules in analyzing authorization under the CFAA. First, a defendant can run afoul of the CFAA when he or she has no permission to access a computer or when such permission has been revoked explicitly. Once permission has been revoked, technological gamesmanship or the enlisting of a third party to aid in access will not excuse liability. Second, a violation of the terms of use of a website—without more—cannot establish liability under the CFAA. Our analysis also is consistent with United States v. Nosal, 828 F.3d 865 (9th Cir. 2016) (“Nosal II”).

Here, initially, Power users arguably gave Power permission to use Face-book’s computers to disseminate messages. Power reasonably could have thought that consent from Facebook users to share the promotion was permission for Power to access Facebook’s computers. In clicking the “Yes, I do!” button, Power users took action akin to allowing a friend to use a computer or to log on to an e-mail account. Because Power had at least arguable permission to access Facebook’s computers, it did not initially access Facebook’s comput.ers “without authorization” within the meaning of the CFAA.

But Facebook expressly rescinded that permission when Facebook issued its written cease and desist letter to Power on Décember 1, 2008. Facebook’s cease, and desist letter informed Power that it had violated Facebook’s terms of use and demanded that Power stop soliciting Facebook users’ information, using Facebook content, or otherwise interacting with Facebook through automated scripts. Facebook then imposed IP blocks in an effort to prevent Power’s continued access.

The record shows unequivocally that Power knew that it no longer had authorization to' access Facebook’s computers, but continued to do so anyway. In requests for admission propounded during the course of this litigation, Power admitted that, after receiving notice that its use of or access to Facebook was forbidden by Facebook, it “took, copied, or made use of data from the Facebook website without Facebook’s permission to do so.” (Emphasis added; capitalization omitted.) Contemporaneously, too, soon after receiving the cease- and desist letter, Power’s CEO sent an e-mail stating: “[W]e need to be prepared for Facebook to try to block us and the [sic] turn this into a national battle that gets us huge attention.” On December 4, 2008, a Power executive sent an e-mail agreeing that Power engaged in four “prohibited activities”; acknowledging that Power may have “intentionally and without authorization interfered with [Facebook’s] possessory interest in the computer system,” while arguing that the “unauthorized use” did not cause damage to Face-book; and noting additional federal and state statutes that Power “may also be accused of violating,” beyond those listed in Facebook’s cease and desist letter. Emails sent later in December 2008 discussed the IP blocks that Facebook had imposed and the measures that Power took to evade them. Nevertheless, Power continued to access Facebook’s data and computers without Facebook’s permission.

The consent that Power had received from Facebook users was not sufficient to grant continuing authorization to • access Facebook’s computers after Facebook’s express revocation of permission. An analogy from the physical world may help to illustrate why this is so. Suppose that a person wants to.borrow a friend’s jewelry that is held in a safe deposit box at a bank. The friend gives permission for the person to access the safe deposit box and lends him a key. Upon receiving the key, though, the person decides to visit the bank while carrying a shotgun. The bank ejects the person from its premises and bans his reentry. The gun-toting jewelry borrower could not then reenter the bank, claiming that access to the sáfe deposit box gave him authority to stride about the bank’s property while armed. In other words, to access the safe deposit box, the person needs permission both from his friend (who controls access to the safe) and from the bank (which controls access to its premises). Similarly, for Power to continue its campaign using Facebook’s computers, it needed authorization both from individual Fa-cebook users (who controlled their data and personal pages) and from Facebook (which stored this data on its physical servers). Permission from the users alone was not sufficient to constitute authorization after Facebook issued the cease and desist letter.

In sum, as it admitted, Power deliberately disregarded the cease and desist letter and accessed Facebook’s computers without authorization to do so. It circumvented IP barriers that further demonstrated that Facebook had rescinded permission for Power to access Facebook’s computers. We therefore hold that, after receiving written notification from Facebook on December 1,2008, Power accessed Facebook’s computers “without authorization” within the meaning of the CFAA and is liable under that statute.

Nosal I is materially distinguishable. First, Nosal I involved employees of a company who arguably exceeded the limits of their authorization. 676 F.3d at 856. Here, by contrast, Facebook explicitly revoked authorization for any access, and this case does not present the more nuanced question of exceeding authorization. Nosal I involved a defendant who “exceeded authorization,” while this case involves a defendant who accessed a computer “without authorization.” Second, although Nosal I makes clear that violation of the terms of use of a website cannot itself constitute access without authorization, this case does not involve non-compliance with terms and conditions of service. Face-book and Power had no direct relationship, and it does not appear that Power was subject to any contractual terms that it could have breached. Finally, Nosal I was most concerned with transforming “otherwise innocuous behavior into federal crimes simply because a computer is involved.” Id. at 860. It aimed to prevent criminal liability for computer users who might be unaware that they were committing a crime. But, in this case, Facebook clearly notified Power of the revocation of access, and Power intentionally and admittedly refused to comply. Nosal 7’s concerns about overreaching or an absence of culpable intent simply do not apply here, where an individualized cease-and-desist letter is a far cry from the permission skirmishes that ordinary Internet users may face.

Accordingly, we hold that, after receiving the cease and desist letter from Face-book, Power intentionally accessed Face-book’s computers knowing that it was not authorized to do so, making Power liable under the CFAA. We therefore affirm in part the holding of the district court with respect to the CFAA.

C. Section 502

California Penal Code section 502 imposes liability on a person who “[knowingly accesses and without permission takes, copies, or makes use of any data from a computer, computer system, or computer network, or takes or copies any supporting documentation, whether existing or residing internal or external to a computer, computer system, or computer network.” Id. § 502(c)(2). This statute, we have held, is “different” than the CFAA. United States v. Christensen, 801 F.3d 970, 994 (2015). “[T]he California statute does not require unauthorized access. It merely requires knowing access.” Id.

But despite differences in wording, the analysis under both statutes is similar in the present case. Because Tower had implied authorization to access Face-book’s computers, it did not, at first, violate the statute. But when Facebook sent the cease and desist letter, Power, as it conceded, knew that it no longer had permission to access Facebook’s computers at all. Power, therefore, knowingly accessed and without permission took, copied, and made use of Facebook’s data. Accordingly, we affirm in part the district court’s holding, that Power violated section 502.

D. Personal Liability

We affirm the district court’s holding that Vachani is personally liable for Power’s actions. A “corporate officer or director is, in general, personally liable for all torts which he authorizes or directs or in which he- participates, notwithstanding that he acted as an agent of the corporation and not on-his own behalf.” Comm. for Idaho’s High Desert, Inc. v. Yost, 92 F.3d 814, 823 (9th Cir. 1996) (internal quotation marks omitted). Cases finding “personal liability on the part of corporate officers have typically involved instances where the defendant was the ‘guiding spirit’ behind the wrongful conduct, or the ‘central figure’ in the challenged corporate activity.” Davis v. Metro Prods., Inc., 885 F.2d 515, 523 n.10 (9th Cir. 1989) (internal quotation’ marks and ellipsis omitted).

Vachani was the central figure in Power’s promotional scheme. First, Vachani admitted that, during the promotion, he controlled and directed Power’s actions. Second, Vachani admitted that the promotion was his idea. It is undisputed, therefore, that Vachani was the guiding spirit and central figure in Power’s challenged actions. Accordingly, we affirm the district court’s holding on Vachani’s personal liability for Power’s actions.

E. Discovery Sanctions

We affirm the discovery sanctions imposed against Power for non-compliance during a Rule 30(b)(6) deposition. Defendants failed to object' to discovery sanctions in the district court. Failure to object forfeits Defendants’ right to raise the issue on appeal. Simpson v. Lear Astronics Corp., 77 F.3d 1170, 1174 (9th Cir. 1996).

Even assuming the issue was not waived, we “review the district court’s rulings concerning discovery, including the imposition of discovery sanctions, for abuse of discretion.” Goodman v. Staples Office Superstore, LLC, 644 F.3d 817, 822 (9th Cir. 2011). The magistrate judge’s findings that Vachani was unprepared, unresponsive, and argumentative and that Power Ventures had failed to produce many e-mails responsive to Facebook’s requests prior to discovery are supported by the record. Accordingly, we hold that the discovery sanctions imposed were not an abuse of discretion.

F. Remedies

Because we reverse in significant part, we also vacate the injunction- and the award of damages. We remand the case t.o the district court to reconsider appropriate remedies under the CFAA and section 502, including any injunctive relief. With respect to damages, the district court shall calculate damages only for the period after Power received the cease and desist letter, when Power continued to access data contained in Facebook’s servers and memory banks.

. REVERSED in part, VACATED in part, AFFIRMED in part, and REMANDED, The parties shall bear their own costs on appeal.

      . One can imagine situations in which those two principles might be in tension'—situations in which, for example, an automatic boilerplate revocation follows a violation of a website’s terms of use—but we need not address or resolve such questions on the stark facts before us.

      . Because, initially, Power users gave Power permission to use Facebook's computers to disseminate messagés, we need not decide whether websites such as Facebook are presumptively open to all comers, unless and until permission is revoked expressly. See Orin S. Kerr, Norms of Computer Trespass, 116 Colum. L. Rev. 1143, 1163 (2016) (asserting that "websites are the cyber-equivalent of an open public square in the physical world”).

      .The mention of the terms of use in the cease and desist letter is not dispositive. Violation of Facebook's terms of use, without more, would not be sufficient to impose liability. Nosal I, 676 F.3d at-862-63. But, in addition to asserting a violation of Facebook's terms of use, the cease and desist letter warned Power that it may have violated federal and state law and plainly put Power on notice that it was no longer authorized to access Facebook’s computers.

      . The activities were: "—Using a person’s Fa-cebook account without Facebook’s authorization;—Using automated scripts to collect information from their site;—Incorporating Facebook's site in another database[; and]— Using Facebook’s site for commercial purposes!,]”

      . Simply bypassing an IP address, without more, would not constitute unauthorized use. Because a blocked user does not receive notice that he has been blocked, he may never realize that the block was imposed and that authorization was revoked. Or, even if he does discover the block, he could conclude that it was triggered by misconduct by someone else who shares the same IP address, such as the user's roommate or co-worker.


author: NOONAN, Circuit Judge: NGUYEN, Circuit Judge,

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Manuel YEPIZ, aka Martin Sanchez, Seal G and Pony; Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jose Luis Mejia, aka Jose Luiz Mejia, Jose Nernedes, Juan Martinez, Jose Mejia, Check Mejia, Jose Al Mejia, Joe Morin, Jose L. Mejia, “Checho”, “Joe” and “Cheech”, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Francisco Zambrano, aka Franky Boy and “Franky”, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jesus Contreras, aka Jessie Contreras, Yuck, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Mariano Meza, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Sergio Mejia, aka Robert Mesa, Seal JJ, Jaws, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Gilberto Carrasco, aka Gilberto Carrasco, Jr., Gil Carrasco, Robert Carrasco, Gilberto Carrosco, Gilberto Corrosco, Julio Gonazalez, Vicente Hernandez, Vincente Hernandez, Vincente NMN Hernandez, Sergio Renteria, Juan Rosas, Beto, Betillo, Red and Cejas, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Ernesto Orozco Mendez, aka “Gordo”, “El Gordo”, Ernesto Mijares, Ernesto Mendoza Mijares, Ernesto Mendoza Orozco (Birth Name), Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Rafael Yepiz, Defendant-Appellant.
    No. 07-50051, No. 07-50062, No. 07-50063, No. 07-50067, No. 07-50070, No. 07-50098, No. 07-50133, No. 07-50142, No. 07-50264
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted December 7, 2015 Pasadena, California
    Filed December 20, 2016

      Verna Wefald (argued), Pasadena, California, for Defendant-Appellant Manuel Yepiz.
    Phillip A. Treviño, Los Angeles, California, for Defendant-Appellant Jose Luis Mejia.
    Shawn Perez, Las Vegas, Nevada, for Defendant-Appellant Francisco Zambrano.
    Phillip Deitch, Santa Monica, California, for Defendant-Appellant Jesus Contreras.
    Donald C. Randolph (argued) and Ann-Marissa Cook, Randolph & Associates, Santa Monica, California, for Defendant-Appellant Mariano Meza.
    Diane Berley, West Hills, California, for Defendant-Appellant Sergio Mejia.
    Adam Axelrad, Los Angeles, California, for Defendant-Appellant Gilberto Carras-co.
    Gary P. Burcham, Burcham & Zugman, San Diego, California, for Defendant-Appellant Ernesto Orozco Mendez.
    Katherine Kimball Windsor (argued), Law Office of Katherine Kimball Windsor, Pasadena, California, for Defendant-Appellant Rafael Yepiz.
    L. Ashley Aull (argued) and David Kowal, Assistant United States Attorneys; Robert E. Dugdale, Chief, Criminal Division; United States Attorney’s Office, Los Angeles, California; for Plaintiff-Appellee United States.
    Before: STEPHEN REIHARDT, JOHN T. NOONAN, and JACQUELINE H. NGUYEN, Circuit Judges.
   Dissent by Judge NGUYEN

OPINION

NOONAN, Circuit Judge:

Appellants are all alleged to be members or associates of the Vineland Boys (“VBS”), a gang located in Southern California. On November 30, 2005, a grand jury returned a 78-count first superseding indictment charging appellants and approximately forty other individuals with crimes arising out of their membership or association with VBS. Seven of the nine appellants were charged with violating the Racketeer Influenced and Corrupt Organizations Act (“RICO”), and with RICO conspiracy (Counts 1 and 2, respectively), and ail appellants were charged with distribution of narcotics (Count 3). Other charged counts included violent crimes in aid of racketeering (“VICAR”), attempted murder, and possession with intent to distribute cocaine, methamphetaminé, and marijuana.

Trial commenced on August 9, 2006. On October 26, 2008, the jury returned a verdict of not guilty as to five counts, a mistrial as to one count, and a verdict of guilty as to the remaining counts. Appellants’ subsequent motions for judgments of acquittal and new trials were denied by the district court. Appellants—Manuel Yepiz, Jose Luis Mejia, Francisco Zambrano, . Jesus Contreras, Mariano Meza, Sergio Mejia, Gilberto Carrasco, Rafael Yepiz, and Ernesto Mendez—timely appealed their convictions and sentences.

We note at the outset that this case was vigorously litigated over the course of two- and-a-half months. It presented the district court with a gauntlet of complex legal questions, and required it to grapple with unique concerns to courtroom safety and logistics. We are now presented with nearly three dozen distinct legal questions on appeal. These questions have been met by the district court promptly and persuasively- '

In this opinion we resolve (1) appellants’ joint Brady claims, and (2) Manuel Yepiz’s Sixth Amendment Right to Counsel claim. We address the remaining issues in a concurrently filed memorandum disposition.

I. Dependants’ Joint Brady Claims

BACKGROUND

At trial, oné of the government’s cooperating witnesses was Victor Bulgarian. In September of 2006, on direct examination, Bulgarian testified that he was previously arrested for possession and sale of methamphetamine in an unrelated case, and agreed' to cooperate with law enforcement in exchange for a lesser sentence, and a grant of immunity for his testimony as a government witness. Bulgarian testified to having received no benefits from the government in exchange for his testimony. However, on cross-examination, Bulgarian testified to having received $5,000 in cash from the government after .he testified to the grand jury in this case. Defendants noted that this testimony directly contravened a letter the government sent to them asserting that no witnesses received any benefits from the government in exchange for their testimony. The government acknowledged that it was “a glaring mistake,” but argued that the error was cured because defendants had ample opportunity to cross examine Bulgarian on the subject of the $5,000 payment. Defendants did not raise the issue again either at trial or in a post-trial motion.

Approximately three years later, on August 20, 2009, Bulgarian testified in the trial of Horacio Yepiz. On direct examination, Bulgarian once again testified to hav-tag received no benefit from the government in return for his testimony. On cross examination, Bulgarian testified that since his arrest for drug-related crimes in 2004, he had received roughly $100,000 to $200,000 in cash from five different law enforcement agencies, although he was unable to give an exact figure. He explained that he was able to solicit paid work from these agencies whenever he wanted (“I decide when I want to work, and when I work, I get paid.”). Indeed, he testified to having received $800 for three hours of work the week prior. Appellants now argue that the government violated Brady by failing to disclose the full extent of the benefits Bulgarian received at trial.

Standard op Review

“[T]he suppression by the prosecution of evidence favorable to an accused upon request violates due' process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution.” Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). To prevail on a Brady claim, the defendant must show that the evidence was material. Materiality is satisfied when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in . the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985). This Court reviews alleged Brady violations de novo. United States v. Baker, 658 F.3d 1050, 1053 (9th Cir. 2011), ovemded on other grounds by United States v. King, 687 F.3d 1189 (9th Cir. 2012).

Discussion

The government makes three arguments in support of its contention that it did not violate Brady: (1) defendants waived any Brady claim by failing to raise it at trial; (2) the allegedly withheld information would have been cumulative in light of other impeachment material provided to defendants; and (3) the record demonstrates that Bulgarian received these payments only after the trial in this case.

The government argues that defendants have waived their Brady claim by failing to raise it in the trial court. However, this Court has previously rejected this precise argument. In United States v. Bracy, undisclosed impeachment evidence of a government witness was uncovered for the first time in a later trial of a severed group of defendants. 67 F.3d 1421, 1428 (9th Cir. 1995). The information came to light only after the defendant had filed his notice of appeal, thereby divesting the trial court of jurisdiction over his case. See generally Griggs v. Provident Consumer Discount Co., 459 U.S. 56, 58, 103 S.Ct. 400, 74 L.Ed.2d 225 (1982). This Court concluded that “[i]t defies logic to suggest that [the defendant] waived a claim by not raising it before a court that lacked jurisdiction to consider it.” Bracy, 67 F.3d at 1428. This reasoning applies with equal force here given that defendants appealed their case in early 2007, roughly two-and-a-half years before the new evidence was revealed.

, Next, the government presents a litany of impeachment evidence that it produced to defendants, and argues that “additional payments information could hardly have caused the jury to view Bulgarian or his relationship with the government differently or with greater caution.” To the extent that the government argues that its duties under Brady only encompass disclosure of non-cumulative evidence, this Court has previously found this line of reasoning unavailing. Carriger v. Stewart, 132 F.3d 463, 481 (9th Cir. 1997) (“We have held that the government-cannot satisfy its Brady obligation to disclose exculpatory evidence by making some evidence available and claiming the rest would be cumulative.”) (internal citations omitted). Moreover, failure to produce evidence (1) that Bulgarian made hundreds of thousands of dollars assisting law enforcement, and (2) enjoyed a relationship that allowed him to earn benefits whenever he chose, was material despite the effect of other impeachment evidence provided by the government. Indeed this evidence could very well have resulted in the jury disbelieving all of Bulgarian’s testimony, which played an important role in the government’s case. Cf. Benn v. Lambert, 283 F.3d 1040, 1058 (9th Cir. 2002) (“The undisclosed benefits that Patrick received added significantly to the benefits that were disclosed and certainly would have ‘cast a shadow" on Patrick’s credibility. Thus, their suppression was material.”).

The government’s attempts to minimize the significance of Bulgarian’s testimony are not persuasive in light of the record. While some of Bulgarian’s testimony was independently corroborated, it nonetheless played a substantial role in the government’s case-in-chief. In particular, Bulgarian’s testimony was relied upon heavily by the government to show that VBS was a “criminal enterprise” under RICO. Therefore, had the alleged Brady materials been made available to appellants at trial, there is a “reasonable probability” that the result of the proceeding would have been altered.

Finally, the government argues that the record conclusively shows that the benefits Bulgarian testified to receiving were all earned after appellants’ trial, and therefore could not serve as the basis of a Brady violation. The government points to a discovery letter sent to Horacio Yepiz in August of 2009, informing him that since Bulgarian’s testimony in this case in 2006, he had received an. additional $80,000 to $90,000 from the government. However, Bulgarian testified that he may have received as much as $200,000 between 2004 and 2009; therefore a letter stating that- he received roughly half that sum after appellants’ trial in 2006 does not foreclose appellants’ Brady claim.

The government concedes that the facts surrounding benefits paid to Bulgarian are “in dispute.” Likewise, defendants admit that “there are fact-finding gaps in the record with regard to how much Bulgarian was paid, when he received payments, and the purpose of the payments.” Defendants attempt to bridge these “gaps” by requesting that the court simply take judicial notice of Bulgarian’s 2009 testimony at the trial of Horacio Yepiz. However courts may only take judicial notice of facts “not subject to reasonable dispute;” therefore the court DENIES defendants’ motion. Fed. R. Evid. 201; see also Lee v. City of L.A., 250 F.3d 668, 690 (9th Cir. 2001).

In light of the disputed facts surrounding defendants’ Brady claim, we REMAND to the district court so that it may engage in the necessary fact-finding to ascertain whether Bulgarian received benefits that were undisclosed to appellants at the time of trial, and if so, whether Brady was violated as to each convicted count.

II. Manuel Yepiz’s Substitution of Counsel Claim

BackgRound

Following Manuel Yepiz’s (“Yepiz”) arrest in June 2005, an attorney named Bernard Rosen was appointed to represent him. In November 2005, Yepiz retained Nicolas ' Estrada to replace Rosen. On April 9, 2006, Yepiz wrote a letter addressed “to the Honorable Judge Walters,” which the court received on April 11, 2006. In the letter, Yepiz expressed “great concern” about “financial differences” he was having with Estrada. He stated that Estrada had asked him for $200,000 to proceed to trial, despite having told Yepiz and his family he would only charge an additional $25,000 to $35,000 for trial. He stated that if Estrada “would have been more truthful from the start, [he] would have never hired [Estrada],” because his family could not afford him. Finally, Yepiz noted that he did not want to “waste everybodys [sic] time by waiting [until] the last minute to ask for a new attorney,” that he had only recently been informed of Estrada’s prices, and that he was thus requesting a “panel attorney” now, so that he or she could “prepare for trial and [have] everything [go] as schedule[d].”

The court did not accept Yepiz’s letter, and instead ordered the letter “returned to counsel” along with a Notice of Document Discrepancies (NDD). A checked box at the bottom of the NDD stated that Yepiz’s letter was “NOT to be filed, but instead REJECTED.” The NDD did not indicate the basis for the court’s rejection, and the docket description of the document only indicated that the denial was based on the fáet that “[p]arties should not write letter[s] to Judge.” Yepiz and Estrada subsequently appeared before the court on May 9, 2006 for a hearing on a motion to suppress evidence, though neither Yepiz nor Estrada reasserted Yepiz’s motion for substitution of counsel.

On July 25 and 31, Yepiz wrote two additional letters addressed to Judge Walter asking for an “in camera hearing” to “request the Court to appoint new counsel” on his behalf. He raised several concerns in his letters regarding Estrada’s representation, and the court scheduled a hearing for August 4, 2006 to address them: At the hearing, the court stated that it had received “two letters from 'the de^-fendant,” referring to those letters dated July 25 and July 31. It did not reference Yepiz’s April 9 letter. After discussing several of Yepiz’s concerns, the following exchange took place between Yepiz and Judge Walter:

Yepiz: Okay, Your Honor. And then another thing. I. addressed the Court—I wrote this letter on, April 9th—yes, I believe April 9th. I have it right here. It was returned, it was signed by, I believe, you. and returned. Right here I’m asking for a lawyer because I’m already having problems with [Estrada] as of April 9th. This is not something that happened last week or a few weeks ago, [Yjour Honor, this has been going on.... This is a whole letter right here signed -by you, yourself, [Y]our Honor, I have it right here in front of me.
The Court: Well, I didn’t sign any letter.
Yepiz: Well, it’s right here.
The Court: I didn’t sign your letter.*
Yepiz: You didn’t sign—oh, you signed the copy of it.
The Court: Your letter that you’re saying that I signed.
Yepiz: My letter, I apologize, you know, I’m not the brightest car in the lot.
The Court: All right. Anything else?

The court then briefly questioned Yepiz about his July 25 letter, but never again acknowledged Yepiz’s April 9 letter. The court held that “the issues raised ha[d] been adequately addressed by counsel” and that Yepiz’s requests for substitution were “untimely, as [they had been] filed on the eve of trial.” The court further stated that because it had received four or five letters from several of Yepiz’s co-defendants who were “all housed together at [a correctional facility],” they amounted to “nothing more than a strategic attempt to delay the trial.” Because it found that a substitution “would necessitate a continuance” of the trial, the court denied Yepiz’s request.

On September 20, 2006—the 23rd day of trial—Yepiz sent a fourth letter to the court that was addressed td Judge Walter. The letter raised several “concerns as to [Yepiz’s] attorney and his representation.” Among other things, it stated that Estrada would not spend $60 to copy a videotape of Yepiz’s arrest and that he feared Estrada had “lost interest to defend [him]” because he had “run out of money.” He stated that Estrada was “constantly harassing]” him for money and his family was “selling their house to pay him,” but that Estrada’s response was “no money [no] defense.” Interpreting Yepiz’s letter as a request for substitution of counsel, the court scheduled a hearing for three days later, where Yepiz clarified that the letter was actually “just a request to get the video” from Estrada, and Estrada agreed to produce it.

STANDARD OP REVIEW

“We review a district court’s denial of a motion for substitution of counsel for abuse of discretion.” United States v. Rivera-Corona, 618 F.3d 976, 978 (9th Cir. 2010). Unlike “most substitution cases” that “arise when an indigent defendant requests new court-appointed counsel in place of an existing appointed attorney,” the present appeal concerns a defendant’s request to replace retained counsel with appointed counsel. Id.

The Sixth Amendment provides that, [i]n all criminal prosecutions, the accused shall enjoy the right ... to have the Assistance of Counsel for his defence.” U.S. Const, amend. VI. This right “encompasses two distinct rights: a right to adequate representation” for all defendants and, for defendants who have retained their own attorney, the right “to be represented by the attorney of [their] choice.” Rivera-Corona, 618 F.3d at 979 (emphasis omitted). The right to counsel of choice includes the constitutional “right to discharge retained counsel,” and a defendant may generally do so “for any reason or no reason” so long as “the substitution, would [not] cause significant delay or inefficiency or run afoul of ... other, considerations,” such as the “fair, efficient and orderly-administration of justice.” United States v. Brown, 785 F.3d 1337, 1340, 1344, 1345, 1346 (2015); Rivera-Corona, 618 F.3d at 980-81. “[D]enial of a defendant’s right to counsel of choice is a structural error, requiring, that convictions be. vacated even without a showing of prejudice.” Brown, 785 F.3d at 1350. Where a “court allows a defendant to discharge his retained counsel and the defendant is financially qualified, the court must appoint new counsel for him under the Criminal Justice Act” (CJA), at any stage of the proceedings. Id. at 1340; 18 U.S.C. § 3006A.

Disoussion

Yepiz claims the district court abused its discretion when it failed to inquire into his April letter seeking to replace Estrada with court-appointed counsel. We agree. Under this court’s precedent, “the trial judge had a duty to inquire into the problems between” Yepiz’s and Estrada “When they were first raised.” Blacketter, 525 F.3d at 896. The court here failed to conduct any inquiry with regard to Yepiz’s April letter, though it clearly understood it was bound by such a duty given the speed with which it scheduled hearings regarding Yepiz’s July and September letters, each of which were similarly addressed directly to Judge Walter. Yepiz’s failure to submit his letter through the very counsel he was hoping to dischargé, does not negate the court’s duty.

As an initial matter, the government argues that the court need not have addressed Yepiz’s request because it was not properly filed. According to the government, Yepiz’s letter was rejected and not filed because it did not comply with Local Rules 83-2.9.1 and 83-2.11. Those rules prohibit parties who are represented by counsel from acting pro se and from communicating with the judge via letters or phone calls. See C.D. Cal. Civ. L-R 83-2.9.1 & 83-2,11. The NDD rejecting Yepiz’s letter, however, made no mention of these local rules. Indeed, no reason for the rejection was provided on that form. It was only on the electronic version of the docket that any explanation was provided: “[p]arties should not write letter [sic] to Judge.” Thus, no clear explanation as to why Yepiz’s letter was rejected was ever presented-to Yepiz’s counsel, and because the letter and NDD were sent to Yepiz’s counsel and not to Yepiz, Yepiz was given no explanation at all.

Had such an explanation been given to Yepiz, he would have been in a position to properly comply with the local rules: he could have requested that his counsel file a motion asking to withdraw, a motion which his counsel would have been ethically obligated to file. Alternatively, Yepiz could have filed another letter explaining why he was unable to comply with the rules— perhaps his counsel was unwilling or unable to comply with his ethical obligations to file a motion to withdraw, or perhaps Yepiz was unable to contact his counsel at all. Because no explanation was provided, Yepiz was not given notice as to how he could properly present his request for new counsel, and as such, the local rules served to arbitrarily deny Yepiz’s constitutional rights. Under the circumstances of this case, therefore, we reject the government’s argument that the court was excused from its duty to inquire into Yepiz’s request because of Yepiz’s failure to comply with any local rule of procedure.

The government also argues that Yepiz waived his Sixth Amendment right to counsel when he failed to reassert his substitution motion at the May suppression hearing. See United States v. Taglia, 922 F.2d 413, 416 (7th Cir. 1991) (stating that “[i]f a motion is not acted upon, a litigant had better renew it. He may not lull the judge into thinking that it has been abandoned and then, after he has lost, pull a rabbit out of his pocket in the form of the forgotten motion.”). However, the record does not support the government’s claim of waiver.

A constitutional right may generally only be waived “if it can be established by clear and convincing evidence that the waiver is voluntary, knowing, and intelligent,” and we must “indulge every reasonable presumption against waiver of fundamental constitutional rights.” Schell v. Witek, 218 F.3d 1017, 1024 (9th Cir. 2000). In Schell, we held that the defendant did not voluntarily, knowingly, and intelligently waive his right to counsel when he failed to reassert a request for substitution that the court had overlooked. Id. Instead, we found that because Schell’s attorney had advised him that his motion “must have been denied” and there was “nothing in the record to suggest that Schell knew of the court’s inadvertent error,” he could not have waived the request. Id. While this case presents a slightly different scenario in that we do not know why Yepiz failed to reassert his motion at the May hearing, our conclusion is the same.

. In this case, Yepiz sent his first letter to the court in April 2006, which the court rejected. He then sent two additional letters addressed to Judge Walter requesting substitution of counsel in July 2006. At a hearing to address the July letters, Yepiz stated that the issues he was having with Estrada were “not something that had just happened last week,” but had instead “been going on” since April. In his September letter, Yepiz stated that “[djuring a conversation in April 2006, I explained I had no more money ... [and] [w]e agreed that [Estrada] would withdraw from the case. However, he still remains and I am being repeatedly harassed for money.” Yepiz’s consistent statements that his issues with Estrada had not been resolved suggest that Yepiz did not voluntarily, knowingly, or intentionally waive his motion.

This conclusion is supported by the fact that the NDD failed to put Yepiz on notice that the letter was rejected or how he might rectify the deficiency. For all he knew, as in Schell, the motion “must have been denied.” Schell, 218 F.3d at 1024. We therefore hold that Yepiz did not waive his motion.

While it may sometimes be necessary to remand a case such as this to the district court in order to determine whether substitution of counsel would have “caused significant delay” or impeded the “fair, efficient and orderly administration of justice,” the record here is sufficiently clear to determine, without remanding, that replacing Estrada would not have implicated these concerns. Blacketter, 525 F.3d at 896. The court received Yepiz’s April 2006 letter four months prior to the start of trial. In the letter, Yepiz stated specifically that he “did not want to delay the trial,” and merely wanted to “have the time to get a new lawyer to defend [him] properly,” as provided by the Constitution. Id. The district court later suggested that “five weeks would have been sufficient time” for a substitute attorney to prepare a defense for a different defendant joined in Yepiz’s case, and any counsel appointed to represent Yepiz would have had months to prepare for trial. Because the substitution would not have affected the court’s calendar, Yepiz was entitled to discharge Estrada “for any reason or no reason.” Blacketter, 525 F.3d at 896. If Yepiz still qualified as an indigent defendant at the time he sent his April letter, he was also statutorily entitled to appointed counsel under the CJA. Brown, 785 F.3d at 1346.

We therefore find that the district court abused its discretion when it arbitrarily and without explanation rejected Yepiz’s April 2006 letter. Given the defects in the district court’s handling of Yepiz’s requests, we VACATE Yepiz’s conviction and REMAND for a new trial. Brown, 785 F.3d at 1350.

NGUYEN, Circuit Judge,

dissenting in part:

While represented by competent retained counsel, Manuel Yepiz sent a pro se letter to the district court. Because the court’s local rules prohibit, among other things, represented parties from communi-eating with the court pro se, his letter was not filed. Instead, the court returned -the letter to Yepiz’s counsel along with notice of the reason for the rejection. Importantly, Yepiz’s letter doesn’t suggest -any dissatisfaction with his attorney’s representation, only with its cost. Yet the majority holds that the court’s failure to consider the letter is structural error requiring automatic reversal of Yepiz’s conviction. I respectfully dissent.

The majority’s ruling invalidates not only well-established local rules in the Central District of California, but similar rules in every district in the Ninth Circuit More troubling, however, is the majority’s refusal to engage in harmless error analysis. A request for appointed counsel implicates the Sixth Amendment’s guarantee of effective assistance, not choice, of counsel, regardless, of whether the . attorney whom the criminal defendant seeks to replace was retained or appointed. Consistent with other effective-assistance cases, Yepiz’s conviction should be affirmed unless he can show prejudice. There was no. such showing here. Indeed, counsel continued to represent Yepiz competently throughout the extensive proceedings in this case, including pretrial hearings, trial, and sentencing. By finding structural error and vacating the conviction, the majority brings us seriously out of step with the Supreme Court’s Sixth Amendment jurisprudence.

I.

I agree with the majority that the Sixth Amendment claim turns on Yepiz’s April 2006 handwritten letter to the district court regarding his retained attorney, Nicolas Estrada. In the letter, Yepiz did.not express concern about. Estrada’s competence or any other aspect of his performance. To the contrary, the letter was premised entirely on. “financial differences” that developed between Yepiz and Estrada. Yepiz wrote that he “need[ed] a -Panel attorney” because Estrada had only recently informed him of the representation’s “financial cost.”

The court “rejected” the letter for filing, and returned it to . counsel for failure to comply with the district court’s local, rules. Those rules prohibit a party from “writing letters to .. t or otherwise communicating with a judge in a pending, matter unless opposing counsel is present” and require “[a]ll matters [to]-be called to-a judge’s attention by appropriate application or motion.” C.D. Cal. L.R. 83-2.11 (2006). The rules also prohibit a represented party from acting pro se. C.D. Cal. L.R. 83-2.9.1 (2006). It appears that the letter may have been bounced by court staff without the judge’s involvement. At a later hearing in which Yepiz recounted the letter, the. district judge gave no indication that he had seen it.

The district court sent a notice of discrepancy to Estrada informing him that filing was rejected, along with a copy of the letter. The electronic docket entry noted' the reason for the rejection as “[parties should not write letter [sic] to judge.” In short, the district court promptly alerted Estrada that the letter was not filed and gave him a copy of it so that he would know the exact nature of his client’s complaint. It appears that Estrada discussed the matter with his client because, at a subsequent hearing, Yepiz stated that he had a copy of the “returned” letter “signed by” the court (presumably referring to the notice of discrepancy).

Yet for three months after filing was rejected, neither Yepiz nor defense counsel raised any concerns. Estrada continued to represent Yepiz, filing a reply in support of his motion to suppress wiretap evidence and appearing alongside him at the hearing. Throughout that time Estrada never filed a motion to withdraw or a request for substitution.

II.

The majority acknowledges that the letter was neither filed nor considered on the merits. It concludes, however, that because the district court presented “no clear explanation as to why Yepiz’s letter was rejected” to Yepiz or to this attorney, the local rules “served to arbitrarily deny Yep-iz’s constitutional rights.” Op. at 1079. I disagree.

For one thing, the docket entry plainly states that the letter was rejected “based on: [p]arties should not write letter [sic] to judge.” Estrada received this notice. See C.D. Cal. L.R. 5-4.1.4(4). Moreover, because “familiarity with [the] Local Rules [is] a prerequisite to admission to practice in the Central District,” Moore v. La Habra Relocations, Inc., 501 F.Supp.2d 1278, 1279 (C.D. Cal. 2007) (citing C.D. Cal. L.R. 83-2.2.2 (2006)), Estrada was expected to know that those rules prohibited represented parties from writing letters directly to the judge. He certainly would have known that the Federal Rules of Civil Procedure require motions to be served on opposing counsel. Fed. R. Civ. P. 5(a)(1)(D).

Once Estrada learned that his client might want to discharge him, he had a duty to promptly discuss the issue with Yepiz and, if Yepiz indeed had that intent, to honor it. An attorney has an ethical obligation to seek substitution or withdrawal if his client wants the representation to end. See, e.g., Fracasse v. Brent, 6 Cal.3d 784, 790, 100 Cal.Rptr. 885, 494 P.2d 9 (1972) (“[T]he client’s power to discharge an attorney, with or without cause, is absolute.” (citation omitted)); see also Cal. Bus. & Prof. Code § 6068(m) (requiring attorneys “to keep clients reasonably informed of significant developments”); Cal. R. of Prof’l Conduct, R. 3-500 (same).

“[T]he attorney is in the best position to determine when a conflict exists and so ‘defense attorneys have the obligation, upon discovering a conflict of interests, to advise the court at once of the problem.’ ” United States v. Elliot, 463 F.3d 858, 866 (9th Cir. 2006) (quoting Holloway v. Arkansas, 435 U.S. 475, 485-86, 98 S.Ct. 1173, 55 L.Ed.2d 426 (1978)). Attorneys routinely bring their clients’ requests to discharge counsel or potential conflicts to the court’s attention, including in the cases relied upon by Yepiz and the majority. E.g., United States v. Brown, 785 F.3d 1337, 1341-42 (9th Cir. 2015) (“[Defense counsel] advised the court [in a written motion] that Brown ‘desire[d] counsel to withdraw from representing him..,’ ”); United States v. Rivera-Corona, 618 F.3d 976, 977-78 (2010) (“[Retained counsel] moved to withdraw [after his client - expressed a loss of faith in him] and requested that new counsel be appointed.”); Miller v. Blacketter, 525 F.3d 890, 892 (9th Cir. 2008) (filing withdrawal motion on the day after the defendant “left a message on [counsel’s] home answering machine stating that he was no longer comfortable with her representation and ... wanted a new lawyer”). There is no reason to think Estrada would not have done the same thing here if Yepiz remained intent on firing him.

For all we know, Yepiz and Estrada may have temporarily resolved their financial differences after Yepiz’s letter was rejected. If so, then we must “presume that counsel [continued] to execute his professional and ethical duty to zealously represent his client, notwithstanding the fee dispute.” United States v. O’Neil, 118 F.3d 65, 71 (2d Cir. 1997). We should assume that Estrada fulfilled his duties given the “ ‘strong presumption’ that an attorney’s conduct was professionally competent.” Frazer v. United States, 18 F.3d 778, 786 (9th Cir. 1994) (quoting Strickland v. Washington, 466 U.S. 668, 689, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984)). Nothing in Yepiz’s April 2006 letter suggested that Estrada was unwilling to end the representation or that there was any other-'conflict that might have warranted the district court’s intrusion into the attorney-client relationship. In Yepiz’s next two letters to the district court, written three months later, he did not even mention the fee issue. By vacating Yepiz’s conviction without knowing why he never renewed his request as a formal substitution motion, the majority flips the presumption that Estrada was competent on its head.

Today’s decision will place tremendous strain on our already overburdened district courts. The majority’s holding means that district courts can’t enforce local rules prohibiting represented parties from writing pro se letters to the judge. Such rules exist in every district court throughout the Ninth Circuit. See D. Alaska Civ. R. 11.1(a)(1)(8)[A]; D. Ariz. Civ. R. 83.3(c)(2); N.D. Cal. Civ. R. 11-4(c); S.D. Cal. Civ. R. 83.9; D. Guam Gen. R. 19.1(a); D. Haw. R. 83.6(a); D. Idaho Civ. R. 83.6(a)(2); D. Nev. R. IA 11-6 (a); D. N. Mar. I. Civ. R. 83.5(g)(1); D. Or. Civ. R. 83-9(b); E.D. Wash. R. 83.2(d)(2); W.D. Wash. Civ. R. 83.2(b)(4), In fact, we enforce similar rules in our own court, see, e.g., United States v. Noriega-Perez, 467 Fed.Appx. 698, 703 (9th Cir. 2012); United States v. Ortiz-Martinez, 593 Fed.Appx. 649, 650 (9th Cir.) (rejecting pro se filing seeking new counsel), cert. denied, — U.S. —, 135 S.Ct. 2912, 192 L.Ed.2d 942 (2015), as do other circuits, see, e.g., United States v. Hunter, 770 F.3d 740, 746 (8th Cir. 2014) (“It has long been Eighth Circuit policy ‘that when a party is represented by counsel, we will not accept pro se briefs for filing.’ ” (quoting United States v. Payton, 918 F.2d 54, 56 n.2 (8th Cir. 1990))).

Until today, we have always afforded district courts great discretion in enforcing these rules because “[a] criminal defendant does' not have an absolute right to both self-representation and the assistance of counsel.” United States v. Halbert, 640 F.2d 1000, 1009 (9th Cir. 1981). Of course, district courts can’t turn a blind eye to conflicts between a criminal defendant and defense counsel under the guise of procedure. When the court is aware of a conflict that potentially could affect a defense counsel’s representation, it has a duty to inquire further. E.g., Garcia v. Bunnell, 33 F.3d 1193, 1199 (9th Cir. 1994). But “not every conflict or disagreement between the defendant and counsel implicates Sixth Amendment rights.” Schell v. Witek, 218 F.3d 1017, 1027 (9th Cir. 2000) (en banc) (citing Morris v. Slappy, 461 U.S. 1, 13-14, 103 S.Ct. 1610, 75 L.Ed.2d 610 (1983) (rejecting “the claim that the Sixth Amendment guarantees a ‘meaningful relationship’ between an accused and his counsel”)).

Yepiz expressed no concern about Estrada’s performance. He did not suggest that counsel’s representation would suffer as a consequence of their financial dispute. I agree that because he asked for appointed counsel, the more prudent course would halve been for the district court to exercise its discretion and take up his complaint. But the failure to do so under these circumstances is not per se reversible error. By concluding that structural error occurs when a district court fails to inquire into a single pro se letter that is returned to counsel, the majority effectively requires district judges to review and entertain all pro se filings submitted by every single represented criminal defendant. This is no small task. For many of our district courts that handle massive criminal dockets, receiving pro se letters is a routine matter. Some defendants in custody are prolific letter writers and, without counsel’s help, their messages may be prolix and inscrutable. District courts, no longer safe to rely on the defense -bar’s professionalism in raising client concerns, will now be pressed to hold hearings whenever criminal defendants write to them on differences with their counsel, regardless of how seemingly minor.

III.

The majority’s assignment of error to the district court’s routine handling of a pro se communication wouldn’t be nearly so pernicious if not for its failure to assess harmlessness. Guided by our precedents— which I believe were wrongly decided—the majority holds that when a district court erroneously denies a motion to substitute retained counsel with appointed counsel, it commits structural error. The mistake in this approach stems from confusion about the right at issue.

“The Sixth Amendment’s right to counsel encompasses two distinct rights: a right to adequate representation and a right to choose one’s own counsel.” Rivera-Corona, 618 F.3d at 979 (quoting Daniels v. Lafler, 501 F.3d 735, 738 (6th Cir. 2007)). These rights are distinct because they arise from different sources. The right to effective counsel is derived from the Due Process Clause’s fair trial guarantee and incorporated into the Sixth Amendment based on “our perception that representation by counsel ‘is critical to the ability of the adversarial system to produce just results.’ ” United States v. Gonzalez-Lopez, 548 U.S. 140, 147, 126 S.Ct. 2557, 165 L.Ed.2d 409 (2006) (quoting Strickland, 466 U.S. at 685, 104 S.Ct. 2052). Because the limits of this right are also derived from the goal of a fair—“not mistake-free”—trial, “a violation of the Sixth Amendment right to effective representation is not ‘complete’ until the defendant is prejudiced.” Id. (citing Strickland, 466 U.S. at 685, 104 S.Ct. 2052).

“The right to select counsel of one’s choice, by contrast, has never been derived from the Sixth Amendment’s purpose of ensuring a fair trial. It has been regarded as the root meaning of the constitutional guarantee.” Id. at 147-48, 126 S.Ct. 2557 (footnote and citations omitted). “Deprivation of the right is ‘complete’ when the defendant is erroneously prevented from being represented by the lawyer he wants, regardless of the quality of the representation he received.” Id. at 148, 126 S.Ct. 2557. Although the right to choice of counsel is subject to qualifications, see Wheat v. United States, 486 U.S. 153, 159, 108 S.Ct. 1692, 100 L.Ed.2d 140 (1988), the improper denial of that right, including the right not to have counsel, see Faretta v. California, 422 U.S. 806, 821, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), is structural error subject to automatic reversal. Gonzalez-Lopez, 548 U.S. at 152, 126 S.Ct. 2557; Frantz v. Hazey, 533 F.3d 724, 734 (9th Cir. 2008).

Here, Yepiz did not seek to retain a particular lawyer or proceed pro se. He asked the district court to appoint counsel. His request was grounded not in the Sixth Amendment’s. right to counsel of choice but rather in its “right to the effective assistance of counsel, the violation of which generally requires a defendant to establish prejudice.” Gonzalez-Lopez, 548 U.S. at 146, 126 S.Ct. 2557; see Wheat, 486 U.S. at 159, 108 S.Ct. 1692 0‘[W]hile the right to select and be represented by one’s preferred attorney is comprehended by the Sixth Amendment, the essential aim of the Amendment is to guarantee an effective advocate for each criminal defendant rather than to ensure that a defendant will inexorably be represented by the lawyer whom he prefers.”). The Supreme Court has cautioned us not “to confuse the right to counsel of choice—which is the right to a particular lawyer regardless of comparative effectiveness—with the right to effective counsel—which imposes a baseline requirement of competence on whatever lawyer is chosen or appointed.” Gonzalez-Lopez, 548 U.S. at 148, 126 S.Ct. 2557.

In Rivera-Corona, the panel cited Bland v. California Department of Corrections, 20 F.3d 1469, 1479 (9th Cir. 1994), overruled on other grounds by Schell v. Witek, 218 F.3d 1017, 1024-25 (9th Cir. 2000) (en banc), for the proposition that a defendant’s request to substitute appointed counsel in place of a retained attorney “implicate^] the qualified right to choice of counsel.” 618 F.3d at 981. I don’t read Bland as holding that, let alone “unequivocally” so. Rivera-Corona, 618 F.3d at 981. At issue was the “right to discharge counsel,” Bland, 20 F.3d at 1472 (emphasis added), not the right to have new counsel appointed. Bland’s retained attorney moved' unsuccessfully “to be relieved as counsel.” Id. at 1475 (emphasis omitted). We affirmed habeas relief based on the trial court’s denial of that motion. Id. at 1472. Although Bland’s retained attorney also expressed his client’s wish to have new counsel appointed, id. at 1475, that request wasn’t at issue because the trial court ultimately appointed counsel when the retained attorney failed to appear at sentencing. Id.

Admittedly, we inconsistently framed the issue as both the right to choice of counsel (which wouldn’t require a showing of prejudice) and the right to effective assistance (which would). But it made no difference how Bland’s right was characterized because he “established the requisite prejudice” in any event. Id. at 1479. In pointing out that “the Sixth Amendment ... protects [Bland’s] qualified right to obtain retained counsel of his choice,” we “assume[d] Bland was not indigent.” Id. at 1477 (emphasis added).

As we explained in Schell, the right to choice of counsel is not implicated by an indigent defendant’s request for appointed counsel: “The qualified right of choice of counsel applies only to persons who can afford to retain counsel.” 218 F.3d at 1025 (emphasis added). In Gonzalez-Lopez, the Supreme Court echoed this principle, stating that “the right to counsel of choice does not extend to defendants who require counsel to be appointed for them.” 548 U.S. at 151, 126 S.Ct. 2557.

The error in Riverar-Corona was compounded in Brown, which held that the erroneous denial of a motion to substitute retained counsel with appointed counsel “is a structural error, requiring that convictions be vacated even without a showing of prejudice.” 785 F.3d at 1350 (citing Gonzalez-Lopez, 548 U.S. at 150, 126 S.Ct, 2557). The panel acknowledged “that it is not, strictly speaking, correct to say that the defendant in Riverar-Corona, or [Brown], was entitled to, or seeking, counsel of choice.” Id. at 1344. Nevertheless, the panel concluded that the district courts were “really deciding two issues. The first, whether the defendant may discharge the attorney whom he retained, implicates the Sixth Amendment right to counsel of choice.... [A]t the same time, [the courts were] also considering a request for appointment of counsel.” Id. at 1344-45, Since the first issue involves a right that if violated requires automatic reversal, Brown concluded that the ultimate decision was also subject to automatic reversal if erroneous. Id. at 1350.

Whatever the logic of that proposition in general, it makes no sense to apply it when the substitution request is for purely financial reasons. The defendant doesn’t want to fire his retained counsel independently of having new counsel appointed. The former is incidental to the latter. See United States v. Mota-Santana, 391 F.3d 42, 47 (1st Cir. 2004) (“[T]he two [analyses] merge, since defendant and his family ran out of funds to retain other private counsel and defendant sought court appointed counsel.”). Here, had the district court found Yepiz indigent and appointed Estrada to continue representing him at public expense, the majority presumably would find no error. See C.D. Cal. Gen. Order 13-09 (allowing for appointment of counsel not on Criminal Justice Act Panel to ensure continuity of representation and preserve the interests of economy). Then why find per se reversible error when the consequence of the court’s purported error was the continued representation by Estrada? The majority doesn’t say.

Before Rivera-Corona and Brown led us astray, we treated motions to substitute retained counsel with appointed counsel under the standard for appointing new counsel because that was the crux of the request. Bland held that “[w]hen reviewing the denial of a motion to substitute [retained with appointed] counsel for abuse of discretion, we consider ... three factors: ‘(1) timeliness of the motion; .(2) adequacy of the court’s inquiry into the defendant’s complaint; and (3) whether the conflict between the defendant and his' attorney was so great that it resulted in a total lack of communication preventing an adequate defense.’ ” 20 F.3d at 1475 (quoting United States v. Walker, 915 F.2d 480, 482 (9th Cir. 1990)). Schell, though overruling Bland’s, application in habeas cases as insufficiently deferential, confirmed that the standard applied in Bland “is the correct methodology for reviewing federal cases on direct appeal.” 218 F.3d at 1025 (citing Walker). Yet Rivera-Corona wrongly held that “the extent-of-conflict review is inappropriate” when a defendant seeks to replace retained with appointed counsel. 618 F.3d at 981. But see Martel v. Clair, 656 U.S. 648, 132 S.Ct. 1276, 1287, 182 L.Ed.2d 135 (2012) (explaining that review of substitution motions “generally include[s]” factors such as “the timeliness of the motion; the adequacy of the district court’s inquiry into the defendant’s complaint; and the asserted cause for that complaint, including the.extent of the conflict or breakdown in communication between lawyer and client (and the client’s own responsibility, if any, for that conflict)”). See generally Rivera-Corona, 618 F.3d at 983-87 (Fisher, J., disagreeing that Bland and Schell were not controlling but concurring in the result). By wholly conflating two distinct rights—the right to counsel of choice and the right to effective counsel—Rivera-Corona and Brown forged structural error from harmless mistake.

IV.

This case illustrates why a conviction shouldn’t be set aside when the district court erroneously denies a request to substitute retained with appointed counsel absent a showing of prejudice. Midway through trial, the district court held a hearing to discuss Yepiz’s most recent complaints about Estrada. The court made specific findings that Estrada had continued throughout the proceedings to competently represent Yepiz, that he had “participated in the trial,” “made objections ... at the appropriate time,” and “properly cross-examined witnesses that ha[d] anything to say that relate[d] to [Yepiz].” Critically, the court found that Yepiz and Estrada “[could] continue to work out” defense strategy. None of these findings is consistent with “the conflict between the defendant and his attorney [being] so great that it resulted in a total lack of communication preventing an adequate defense.” Bland, 20 F.3d at 1475. In other words, there is no evidence of prejudice.

I respectfully dissent.

      . Horacio Yepiz was originally joined as a co-defendant of appellants, but was later deemed incompetent and tried separately.

      . Defendants also request that this court take judicial notice of a complaint, verdict, and judgment in a state civil negligence case. Defendants have failed to adequately explain how these documents relate to any of their arguments on appeal, and how they meet the standard for judicial notice. MJN at 5 (citing JOB at 76-77). The Court therefore DENIES defendants’ motion for judicial notice as to these documents as well.

      . At oral argument, the government conceded that defendants should have an opportunity to litigate their Brady claims by collaterally attacking their conviction under 28 U.S.C. § 2255. However, the government points to no opinion of this Court holding that a post-conviction motion under § 2255 is preferable to a remand. Indeed, the government stated at oral argument that “it doesn’t make much difference” what mechanism is used. Moreover, defendants would not enjoy the benefit of counsel in a § 2255 proceeding. Given that counsel for defendants are already familiar with the facts surrounding - the Brady issue, the interests of justice and judicial efficiency militate in favor of remanding to the district court.

      . While the NDD stipulated that the letter should be returned to counsel, based on Yepiz’s statements, he was aware that the letter had been returned, either because it had been returned directly to him, or because Estrada informed him that it had been returned.

      . Yepiz sent four letters to the court regarding Estrada. The first, at issue here, was sent in April 2006. Yepiz followed up with two more in July, and a fourth letter in September after trial had begun. I agree with-the majority that the denial of the July and September requests for substitution of counsel were justified. See, e.g., United States v. Garcia, 924 F.2d 925, 926 (9th Cir. 1991) ("We have consistently held that a district court has broad discretion to deny a motion for substitution made on the eve of trial if the substitution would require a continuance." (citing United States v. McClendon, 782 F.2d 785, 789 (9th Cir. 1986))).

      . Federal Rule of Civil Procedure 5(d)(4) prohibits the clerk from refusing to file a paper solely for noncompliance with a local rule, but such orders can be entered at the direction of a judicial officer. E.g., Christian v. Mattel, Inc., 286 F.3d 1118, 1129 (9th Cir. 2002); see Fed. R. Civ. P. 5(e) advisory committee’s note to 1991 amendment ("The enforcement of these rules and of the local rules is a role for a judicial officer.”). It’s unclear whether Judge Walter saw’ the letter and rejected the filing, he delegated that duty, or, if his usual practice was to set a hearing, a clerk inadvertently failed to comply. That Judge Walter’s signature is on the notice of discrepancy doesn’t definitively tell us the answer as most judges have signature stamps for their courtroom deputy’s use.

      . As stated, Yepiz knew that his letter was rejected. But the majority appears to assume that Estrada failed to notify Yepiz in a timely manner or refused to honor a request to withdraw. Even if true, Yepiz had a remedy: he could allege ineffective assistance of counsel. Of course, we usually do not consider such claims on direct appeal because the record is inadequate to evaluate them. See, e.g., United States v. Rahman, 642 F.3d 1257, 1259 (9th Cir. 2011). But that’s all the more reason why we shouldn’t disturb the conviction in these proceedings.

      . The Eastern District of California does not have a specific rule except for capital habeas petitioners, E.D. Cal. R. 191(c), but its rules cite "letters to the Court not suitable for filing” as an example of "received” documents that are “not ,.. part of the official record in the action,” E.D. Cal. R. 101. The District of Montana implies , such a rule for represented criminal defendants: "When the right to counsel no longer applies in this court, pro se filings may not be dismissed or stricken on the grounds that the filer was represented by counsel.” D. Mont. Crim. R. 44.1.