United States v. Anderson

When a defendant fails to timely object to a challenged jury instruction, the flawed instruction will be upheld when it does not rise to the level of plain error; a district court errs when it fails to award restitution based on the victim’s actual loss.

Roosevelt Anderson, Jr. sold unlicensed copies of Adobe Systems Inc. software. He used consumer-grade writeable discs with handmade labels and sold these as “full” or “OEM” versions. He included terms and conditions that stated that the software was for backup or archival purposes only, but customers were not required to agree to these before installing the software. Anderson also used a product key generator to create useable serial numbers, which he wrote in permanent marker on the copied discs. At trial, Anderson was convicted of criminal copyright infringement and sentenced to two years imprisonment, two years probation, and $247,144 in restitution to Adobe. He appealed, contending that the jury instruction on willfulness was wrong, uncharged acts of infringement were improperly introduced into evidence, and that the trial court erred in calculating restitution. Regarding the jury instruction, the Ninth Circuit found that Anderson’s counsel had agreed to proposed jury instructions and failed to object when asked. Since Anderson failed to timely object, the panel reviewed for plain error. Under this standard, the panel held that the instruction given, while imprecise, was not misleading or inadequate. Thus, it did not rise to the level of “clear and obvious error,” and the panel upheld the lower court’s decision. At trial, the district court also allowed evidence of uncharged acts to be admitted, denying Anderson’s motion to exclude. Reviewing this claim de novo, the panel upheld the lower court’s decision, stating that the earlier acts were vital to explain the nature of Anderson’s business model and “necessary for the prosecution to tell a clear and comprehensible story.” Lastly, the panel held that the district court had erred in calculating restitution, as they did not base the calculation on Adobe’s actual loss. AFFIRMED IN PART, VACATED AND REMANDED IN PART.