9/10/25: Selective enforcement and a categorical case

First, in United States v. Green, --- F.4th ---, No. 23-1294 (9th Cir. 2025), the Court affirmed the district court’s denial of Keenon Green’s motion for discovery by which Green sought to pursue a selective enforcement claim, and the sentence imposed by the district court, in a case in which Green was convicted of attempted sex trafficking of a minor and attempted sexual enticement of a minor.

We conclude that the district court did not abuse its discretion in rejecting Green’s discovery requests, given that he relied on an unreliably small sample size of past cases to claim selective enforcement. We also reject his argument that the district court abused its discretion at sentencing by ignoring his unwarranted disparity claim under 18 U.S.C. § 3553(a)(6). We affirm.

[F]or discovery involving a selective enforcement claim—at issue here—the Supreme Court has not yet spoken. Our court, however, held in Sellers that the “rigorous” discovery standard for a selective prosecution claim does not apply. 906 F.3d at 852–53. Instead, for a selective enforcement claim, the test is more relaxed, vesting broad discretion in the trial court. 

Additionally, Sellers concluded that although a defendant “will eventually need to show both elements” to prevail on a selective enforcement claim—that is, a discriminatory intent and effect—obtaining discovery for a selective enforcement claim does not require “some evidence” tending to show the existence of both.

Overall, it appears that the district court denied Green’s motion because it did not find his argument—which was based on just six federal cases—very compelling. This was a permissible reason under Sellers. Thus, the district court did not abuse its discretion in denying Green’s motion for discovery.

Green [also] argues that the district court procedurally erred by “refusing to consider” his unwarranted sentencing disparity claim in sentencing him to 144 months.  

Because the district court (1) gave the parties “a chance to argue for a sentence they believe[d] [was] appropriate,” and (2) “consider[ed] the § 3553(a) factors to decide if they support[ed] the sentence suggested by the parties,” we find no procedural error in the district court’s sentencing. Carty, 520 F.3d at 991. We also find that Green has failed to show that the district court’s 144-month sentence is substantively unreasonable. See Gall, 552 U.S. at 51. We thus affirm the 144-month sentence imposed by the district court.

Next, in United States v. Keast, --- F.4th ---, No. 24-1253 (9th Cir. 2025), the Court vacated a sentence and remanded for resentencing in a case in which Scott Keast pled guilty to one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1).

Scott Keast challenges his 46-month sentence for one count of felon in possession of a firearm in violation of 18 U.S.C. § 922(g)(1). When Keast was sentenced for that federal crime, he had a prior, Oregon conviction for aggravated “unlawful use of a weapon.” See Or. Rev. Stat. §§ 161.610, 166.220(1)(a). The district court concluded that Keast’s prior conviction qualifies as a “crime of violence” under the Sentencing Guidelines, U.S.S.G. § 4B1.2(a)(1), which increased the recommended sentence. Keast contends the district court’s crime-of-violence analysis was incorrect, and we agree. Because the Oregon statutes of conviction do not require “as an element the use, attempted use, or threatened use of physical force against the person of another,” Keast’s prior conviction is not a crime of violence under the Sentencing Guidelines. We therefore vacate his sentence and remand for resentencing.

In reaching this conclusion, the Court rejected the government's reliance on the Duenas-Alvarez realistic probability test. 

9/9/25: Second Amendment case

In United States v. Stennerson, --- F.4th ---, No. 23-1439 (9th Cir. 2025), the Court affirmed the district court’s denial of a motion to dismiss an indictment charging Jaren Michael Stennerson with being an unlawful drug user in possession of a firearm in violation of 18 U.S.C. § 922(g)(3) and illegally receiving a firearm while under felony indictment in violation of 18 U.S.C. § 922(n).

Stennerson argued that §§ 922(g)(3) and 922(n) are facially unconstitutional under the Second Amendment and that § 922(g)(3) is unconstitutionally vague as applied to him. 

The Court held that §§ 922(g)(3) and 922(n) are facially constitutional under the analysis established in N.Y. State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1, 24 (2022), and United States v. Rahimi, 602 U.S. 680, 693 (2024), because there are circumstances in which they can be applied that are consistent with our nation’s history and tradition of firearms regulation. 

The Court also held that § 922(g)(3) is not unconstitutionally vague as applied to Stennerson because he was an admitted daily user of methamphetamine when he was charged with unlawful possession of a firearm.

9/5/25: Investment fraud case

In United States v. Jesenik, et al., --- F.4th ---, No. 24-5405 (9th Cir. 2025), the Court affirmed three defendants’ convictions arising out of the failure of Aequitas Management LLC, an investment management company. 

Former Aequitas executives Robert Jesenik, Andrew MacRitchie, and Brian Rice were convicted of wire fraud and conspiracy to commit wire fraud. Jesenik was also convicted of making a false statement on a loan application.

We first address all defendants’ contention that they may have been convicted on an invalid legal theory of fraud and Rice’s challenge to the sufficiency of evidence.

False statements can include “misleading half-truths,” representations that are partly true but misleading “because of [the defendant’s] failure to state additional or qualifying matter,” Universal Health Servs., Inc. v. United States ex rel. Escobar, 579 U.S. 176, 188 (2016) (cleaned up). Even in the absence of a false statement, a conviction can be based on a failure to disclose material facts. See United States v. Shields, 844 F.3d 819, 822 (9th Cir. 2016). But wire fraud can be premised on such an omissions theory only if the defendant had a special “trusting relationship” with the victim. Id. at 823. That relationship is not required in fraud cases premised on misrepresentations, including half-truths. 

The defendants contend that although they were charged in the operative indictment only with engaging in “material misrepresentations and misleading half-truths,” the government really presented an omissions theory at trial.9 They argue that the district court therefore erred in denying proposed instructions requiring proof of a trusting relationship. 

“[A] general verdict that may rest on a legally invalid theory” cannot stand unless we are convinced beyond a reasonable doubt that presentation of the invalid theory “did not contribute to the jury’s verdict.” United States v. Yates, 16 F.4th 256, 269–70 (9th Cir. 2021) (cleaned up). Such an error is not harmless even “where the verdict is supportable on [another] ground.”

To the extent the defendants argue that it was error for the district court to allow the government to ask investors “would you have invested had you known” questions, or to discuss what the defendants did not disclose, we disagree. It is well-established that such evidence is probative of the materiality of a half-truth or misrepresentation.  

And the government did not argue that omissions alone were sufficient to prove fraud or present that theory to the jury. Rather, the government elicited extensive testimony about the relevant affirmative statements when questioning witnesses about non-disclosures, and stressed these affirmative statements in closing argument.

Had the defendants been charged under an omissions theory, the government would have been required to show a relationship giving rise to a duty to disclose. See Shields, 844 F.3d at 822–23; United States v. Spanier, 744 Fed. App’x 351, 353–54 (9th Cir. 2018). But these defendants were not so charged, and the district court therefore did not err in denying the defendants’ proposed “independent duty” instruction. See United States v. Farrace, 805 Fed. App’x 470, 473 (9th Cir. 2020). For the same reason, the district court did not abuse its discretion in denying the proposed instruction that “omissions alone are not sufficient to support a charge of mail or wire fraud” and that “[a]n omission alone – absent a connection to a half-truth – does not constitute a misrepresentation.”

In the context of this case, however, the defendants’ affirmative representations that Aequitas was in good financial health, made while soliciting purportedly secure investments in income-generating assets, have a plain nexus to non-disclosures about liquidity problems, difficulty paying operating expenses, and an SEC investigation concerning potential misuse of investor funds. Whether those representations were misleading half-truths was therefore properly a question for the jury.

We next address the defendants’ contentions that they were precluded from presenting a complete defense. These arguments again center on disclosures in the PPMs and audited financial statements.

“[T]he focus of the mail fraud statute, like any criminal statute, is on the violator.” Proof of a scheme to defraud does not require showing that a victim relied on the defendant’s falsehoods; it is sufficient that falsehoods were material. Lindsey, 850 F.3d at 1014. Materiality, as opposed to reliance, is an objective measure of a representation’s “tendency to influence” “the decisionmaker to whom [it] was addressed.”

Whether a representation has a tendency to influence a decisionmaker is not the same question as whether the decisionmaker would be justified in relying on it. Justifiable reliance is relevant to civil liability for fraud, but not to criminal liability. See Neder, 527 U.S. at 24–25; see also Weaver, 860 F.3d at 95. Thus, consistent with other circuits that have addressed the issue, see, e.g., Weaver, 860 F.3d at 95–96; United States v. Lucas, 516 F.3d 316, 339–40 (5th Cir. 2008); United States v. Ghilarducci, 480 F.3d 542, 547 (7th Cir. 2007), we hold that contractual disclaimers do not render immaterial other representations in criminal wire fraud prosecutions.

For the same reason, we reject the argument that the defendants’ representations in sales pitches and marketing materials were immaterial to “accredited” investors. To be sure, “materiality is judged in relation to the persons to whom the statement is addressed.” Galecki, 89 F.4th at 737 (cleaned up). But “the wire fraud statute protects the naive as well as the worldly-wise.” United States v. Ciccone, 219 F.3d 1078, 1083 (9th Cir. 2000) (cleaned up). Materiality is a question of fact for the jury, see United States v. Gaudin, 28 F.3d 943, 944 (9th Cir. 1994) (en banc), aff'd, 515 U.S. 506 (1995), and the district court properly left the materiality issue to the jury.

To the extent that the defendants challenge the district court’s preclusion of evidence about investor negligence or non-reliance, their argument is foreclosed by Lindsey, a case involving mortgage fraud. We held there that “a bright-line rule against evidence of individual lender behavior to disprove materiality is both a reasonable and necessary protection” because “evidence of individual lender behavior can easily touch on lender negligence, intentional disregard, or lack of reliance—none of which is a defense to mortgage fraud.” 850 F.3d at 1017.11 We find no reason to adopt a different rule in this case, simply because the loans gave rise to promissory notes instead of mortgages.

To the extent the defendants argue that “if an investor felt misled, it was because the investor . . . chose to disregard part of the complete representation,” they effectively seek to urge that Aequitas’s investors were negligent. As Lindsey emphasizes, “negligence is not a defense to wire fraud.” 

9/3/25: Case on supervised release sentencing

In United States v. Taylor, --- F.4th ---, No. 24-1244 (9th Cir. 2025), the Court affirmed the 60-month sentence imposed upon revocation of Douglas Taylor’s supervised release.

The Court explained that a district court imposing a modification or revocation of a term of supervised release may not punish the defendant for the original crime of conviction. Esteras v. United States, 145 S. Ct. 2031, 2040 (2025). Moreover, a court may not punish a defendant who has violated the terms of supervised release by engaging in criminal conduct. See United States v. Miqbel, 444 F.3d 1173, 1182 (9th Cir. 2006); United States v. Simtob, 485 F.3d 1058, 1062 (9th Cir. 2007). However, the court may consider a violation of criminal law underlying the supervised release violation in its evaluation of the criminal history of the defendant, the risk of recidivism, and the violator’s breach of the court’s trust.

Taylor argues that the district court improperly punished Taylor for his August 2008 conduct under Miqbel and Simtob, by stating that his conduct was “egregious.” We disagree. Unlike in Miqbel, 444 F.3d at 1183, the court did not improperly cite § 3553(a)(2)(A) in stating the reasons for its sentence. Rather, the court considered the appropriate factors, including that Taylor had violated the terms and conditions of supervised release, see § 3553(a)(1) (requiring the court to consider “the nature and circumstances of the offense and the history and characteristics of the defendant”), and that Taylor had not responded to sanctions or attempted interventions, see id. § 3553(a)(2)(B) (requiring consideration of “adequate deterrence”). Read in context, the court’s statement that Taylor had “engaged in egregious conduct that is a danger not only to himself but to the public” is consistent with § 3553(a)(2)(C), which requires the court to consider the need “to protect the public from further crimes of the defendant.” As Simtob allows, the district court considered Taylor’s criminal history, the “similar[ity] to [Taylor’s] past transgressions,” and Taylor’s “propensity for recidivism and inability to integrate peacefully into a community.” 485 F.3d at 1062. Moreover, the court noted that Taylor violated the court’s trust and was unable to integrate peacefully back into the community. See Esteras, 145 S. Ct. at 2040 n.5 (taking “no position on whether this is a permissible consideration.”).

The district court thus “properly look[ed] to and consider[ed] the conduct underlying the revocation as one of many acts contributing to the severity of” Taylor’s breach of trust, so as to fully understand Taylor’s history and risk of recidivism. Simtob, 485 F.3d at 1063. The district court did not discuss retribution or punishment for Taylor’s violation of the conditions of his supervised release. Thus, the district court did not procedurally err on this ground, much less plainly err. 

In sum, the district court did not commit plain procedural error by considering Taylor’s circumstances and arguments and imposing a 60-month above-Guidelines sentence at the revocation sentencing hearing.

8/27/25: Case on the Fourth Amendment abandonment doctrine

In United States v. Hunt, --- F.4th ---, No. 23-2342 (9th Cir. 2025), the Court affirmed the district court’s orders denying Dontae Hunt’s motion to suppress, and his recusal motion, in a case in which Hunt was convicted of possession with intent to distribute fentanyl analogue, conspiracy to possess with intent to distribute and to distribute a controlled substance, unlawful possession of firearms, and laundering of monetary instruments.

The abandonment doctrine states that a person who abandons property relinquishes his expectation of privacy in that property and thus waives any Fourth Amendment challenge. But how should we apply the abandonment doctrine to digital devices that may contain a massive trove of personal information? Appellant Dontae Hunt and amici urge us to scuttle this doctrine when it comes to cellphones. 

We decline to do so. We follow the time-tested reasonable expectation of privacy principle while considering that today’s technology allows us to keep historically unprecedented amounts of private information in devices. When determining a person’s intent to abandon, courts should analyze the intent to abandon the device separately from the intent to abandon its data. 

We disagree with the district court’s ruling that Hunt lacked standing to challenge the search of his black iPhone. The record does not allow the inference that Hunt intended to abandon the phone or its contents when he dropped it after being shot five times; it shows that he fled to seek medical help. Hunt’s Fourth Amendment claim fails on the merits because federal agents obtained a warrant and searched his phone within a reasonable period. 

We also reject Hunt’s argument that the district court judge should have recused herself because she served as the U.S. Attorney in Oregon when her office earlier prosecuted Hunt for a different crime. A reasonable person would not question the district court judge’s impartiality. We affirm the conviction and the sentence.

Even if we assume that Hunt had abandoned his black iPhone by not trying to retrieve it from the police, we cannot conclude that he also intended to abandon the data in his phone without examining all the relevant facts. Unlike the defendants in Fisher, Hunt did not willingly sell or give away his black iPhone with all its personal data still intact. See 56 F.4th at 687. Rather, he simply lost the phone during a shooting. Though he did not follow up with the police, the record does not establish that he had reason to suspect the police collected the black iPhone from the crime scene. We need not conduct a separate analysis of the stored data because we hold that Hunt did not abandon his phone.

While Hunt has standing to challenge the search of the black iPhone’s data, his argument fails on the merits. Federal agents obtained a warrant to search the iPhone’s data. So Hunt can only complain that the government violated the Fourth Amendment by seizing the data for an unreasonably long period. This argument falls flat because the Eugene police acted reasonably by collecting the iPhone as evidence related to the shooting investigation and by holding it until someone claimed it. 

8/25/25: Case on Federal Rule of Evidence 704(b)

In United States v. Olivas, --- F.4th ---, No. 20-50182 (9th Cir. 2025), on remand from the Supreme Court after Diaz, the Court affirmed Sylvia Olivas’s conspiracy convictions arising from her participation in activities of the Canta Ranas Organization, an alleged street gang.

At Olivas’s trial, a government expert testified that “secretaries”—trusted gang members who facilitate communication to and from incarcerated gang leaders— know “[e]verything” about the gang’s activities. Later, the expert opined that Olivas was “a secretary.”

Olivas argued on appeal that the testimony violated Federal Rule of Evidence 704(b), which prohibits expert witnesses in criminal cases from stating opinions “about whether the defendant did or did not have a mental state or condition that constitutes an element of the crime charged.”  Reviewing for plain error, the Court affirmed. 

A party must lodge a “specific objection” to the challenged testimony. United States v. Gomez-Norena, 908 F.2d 497, 500 (9th Cir. 1990). Put another way, a party must object to the precise testimony under review. Objections to earlier, attenuated statements are not enough. A party cannot claim to have properly objected to the testimony without having put the district court on notice of the specific ground raised on appeal. Because the defense failed to specifically object to Enriquez’s testimony that Olivas was a Mexican Mafia secretary, we review for plain error.

We conclude that the district court did not plainly err by admitting Enriquez’s testimony that Olivas was Gavaldon’s secretary after he said earlier that secretaries know “[e]verything” about the gang. And even if the district court plainly erred, we conclude that the error did not affect Olivas’s substantial rights or impair the integrity of judicial proceedings.

To satisfy plain error, there must be no question or ambiguity that a district court failed to correct a manifest error—one that any jurist would have recognized without an objection. See United States v. Rusnak, 981 F.3d 697, 705 (9th Cir. 2020). “Plain error applies to a trial error that should have been, but was not, recognized by the district court.”

We cannot say that the district court should have recognized this error. To start, Olivas splices snippets from Enriquez’s day-long testimony to identify an alleged Rule 704(b) violation.

We assume, as Olivas argues, that the witness’s challenged statements, when considered in the aggregate, fall afoul of Diaz. But, under the peculiar circumstances of this case we cannot say any error “should have been, but was not, recognized by the district court.” Id. The challenged statements came hours apart separated by exchanges on topics unrelated to secretaries.  We would not expect the district court to realize sua sponte that Enriquez’s opinion that Olivas is a secretary—itself an unobjectionable opinion—was rendered improper because of a separate permissible opinion, made hours earlier, that secretaries know “[e]verything.”

Even if the district court should have recognized this error, Olivas must show “a reasonable probability that, but for the error, the outcome of the proceeding would have been different.” Greer v. United States, 593 U.S. 503, 507–08 (2021) (quotation omitted); see also United States v. Atkinson, 297 U.S. 157, 160 (1936) (relief is limited to “exceptional circumstances”). She has not met that burden.

8/19/25: Case holding that FSA credits can reduce supervised release

In Gonzalez v. Herrera, --- F.4th ---, No. 24-2371 (9th Cir. 2025), the Court reversed the district court’s order denying Leon Gonzalez’s petition for a writ of habeas corpus under 28 U.S.C. § 2241 and remanded with instructions to grant the petition in part, direct the government to recalculate Gonzalez’s earned time credits under the First Step Act of 2018, and provide the recalculation to his probation officer.

The Court held that the plain language of the First Step Act and the relevant canons of construction clearly demonstrated that Congress created the Act’s time credit scheme to allow for the reduction in length of a supervised release term.

Petitioner Leon Gonzalez served his custodial sentence. He is now on supervised release and sitting on a heap of FSA time credits that he asks to be applied to reduce the term of his supervised release. The Government argues that those credits are worth nothing—that the time and energy Gonzalez spent earning credits in excess of his custodial sentence is wasted. We disagree. The plain language of the law and the relevant canons of construction clearly demonstrate that Congress created the FSA’s time credit scheme to allow for the reduction in length of a supervised release term in Gonzalez’s circumstances. Therefore, we reverse the order dismissing Gonzalez’s petition for writ of habeas corpus and remand with further instructions.  

A thin slice of the United States Code controls this case. 18 U.S.C. § 3632 codifies the FSA’s mandate for a risk and needs assessment system, subsection (d) provides incentives for prisoners to participate, and subsubsection (4) creates earned time credits. Subsubsubsection (C) is entitled “[a]pplication of time credits toward prerelease custody or supervised release,” and reads: 

Time credits earned under this paragraph by prisoners who successfully participate in recidivism reduction programs or productive activities shall be applied toward time in prerelease custody or supervised release. The Director of the Bureau of Prisons shall transfer eligible prisoners, as determined under section 3624(g), into prerelease custody or supervised release. 18 U.S.C. § 3632(d)(4)(C).  

From the plain text and canons of construction, it is clear that Congress intended for the FSA’s earned time credits to reduce a prisoner’s supervised release term. To conclude otherwise, as the Government urges us to do, would require bending and twisting the statutory language and reading incongruence into criminal statutes. We decline to do so and instead rest upon a reading coherent with the plain text inquiry and context.