United States of America v. David Xinidakis

* This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
*** The Honorable Matthew F. Kennelly, United States District Judge for
the Northern District of Illinois, sitting by designation.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
DAVID XINIDAKIS,
Defendant - Appellant.
No. 09-50307
D.C. No. 3:08-CR-07026-IEG-1
MEMORANDUM *
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, Chief District Judge, Presiding
Submitted March 2, 2010 **
Pasadena, California
Before: RYMER and WARDLAW, Circuit Judges, and KENNELLY, *** District
Judge.
FILED
MAR 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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David Xinidakis appeals the district court’s revocation of supervised release,
claiming there was insufficient evidence for the court to find he had committed the
crime of stalking in violation of Cal. Penal Code § 646.9(a) and (b). Because a
preponderance of evidence shows Xinidakis intended to place his victim in
reasonable fear for her safety, we affirm.
I
“We review the district court’s decision to revoke a term of supervised
release for an abuse of discretion.” United States v. Perez, 526 F.3d 543, 547 (9th
Cir. 2008). “A district court may revoke a term of supervised release only if it
‘finds by a preponderance of the evidence that the defendant violated a condition
of supervised release.’” Id. (quoting 18 U.S.C. § 3583(e)(3)). We have jurisdiction
pursuant to 28 U.S.C. § 1291.
II
To establish the offense of stalking under California law, the government
had to prove Xinidakis (1) followed or harassed another person, (2) made a
credible threat, and (3) intended to place the victim in reasonable fear for her
safety. People v. Uecker, 172 Cal. App. 4th 583, 594 (2009). The element of

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intent “can be inferred from circumstantial evidence.” People v. Falck, 52 Cal.
App. 4th 287, 299 (1997).
Notwithstanding the innocence of Xinidakis’s purported intentions, as in
Falck it can be inferred that Xinidakis intended to place his victim in fear for her
safety. He insisted on contacting her – face-to-face and by letter – after she told
him “I don’t want to talk to you,” asked to be escorted to her car because she did
not want to speak with him, and obtained a restraining order against him. See id.;
Uecker, 172 Cal. App. 4th at 597. Similarly, Xinidakis was “warned away” from
the victim by his pastors, a state court judge, his probation officers, and a federal
court judge. See Falck, 52 Cal. App. 4th at 299.
Moreover, Xinidakis’s letters contained sexual innuendo and expressions of
lust, referenced acts of violence, and at times had a hostile tone. See id.; Uecker,
172 Cal. App. 4th at 597. And similar to Uecker, where the court inferred intent to
induce fear because the defendant knew his victim knew he was a registered sex
offender, 172 Cal. App. 4th at 597, Xinidakis knew his victim was aware of his
criminal history for he told her he had been to prison for robbing a bank and was
still on probation.
Xinidakis’s attempts to put an innocent gloss on his behavior and to
distinguish Falck are unavailing. As the district court noted, Xinidakis’s letters

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aren’t as innocent as he claims; instead, they “indicate a person who might do
things that are unreasonable and may cause harm to a person that he’s obsessed
with.” Also, Xinidakis knew the victim was afraid of him, yet continued to look
for her, propose to her, confront her, and write to her.
Accordingly, the government met its burden of proof; sufficient evidence
supported the district court’s determination. Likewise, the court acted well within
its discretion in revoking supervised release.
AFFIRMED.

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