4/2/25: Convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes

In United States v. Carver, --- F.4th ---, No. 23-4105 (9th Cir. 2025), the Court affirmed Carver's sentence, holding that convictions set aside under Cal. P.C. 1203.4 are not "expunged" for Guidelines purposes. 

In determining a defendant’s criminal history under the United States Sentencing Guidelines (“Guidelines”), courts do not count sentences for “expunged convictions.” U.S.S.G. § 4A1.2(j). We have held that convictions set aside under section 1203.4 of the California Penal Code are not expunged for purposes of section 4A1.2(j) of the Guidelines. See United States v. Hayden, 255 F.3d 768, 772 (9th Cir. 2001). Because Hayden used the “‘traditional tools’ of construction” to reach its conclusion, Kisor v. Wilkie, 588 U.S. 558, 575 (2019) , we reject the defendant’s argument that Kisor overruled Hayden.

3/27/25: Important Fourth Amendment Decision

In United States v. Holcomb, --- F.4th ---, No. 23-469 (9th Cir. 2025), the Court reversed the district court’s ruling on Holcomb’s motion to suppress three videos found on his computer, vacated his conviction and sentence for producing child pornography, and remanded for further proceedings.

The opinion is worth reading, especially if you are litigating a suppression issue based on an overbroad warrant or dealing with the good faith exception.  Here are some key points. 

This case raises a variation of the familiar but always troubling issue of whether someone can be prosecuted for despicable criminal conduct based on evidence obtained in violation of the United States Constitution. In the circumstances of this case, respect for the Constitution and the rule of law requires an answer of “no.”

On appeal, Holcomb argues, inter alia, that the second warrant’s dominion and control provision, on the basis of which the examiner located the three videos that led to Holcomb’s indictment, was invalid because it was both overbroad and insufficiently particular. He further argues that, under Ninth Circuit precedent, the good-faith exception does not apply to the examiner’s search of his computer. The Government disputes each of these arguments and also argues that the plain view doctrine independently authorized the examiner’s seizure of the three videos depicting child sexual abuse. 

We agree with the district court that the dominion and control provision was invalid because it was both overbroad and insufficiently particular. However, unlike the district court, we conclude that the good-faith exception does not apply to the examiner’s search. Furthermore, we conclude that the plain view doctrine does not independently justify the examiner’s seizure of the videos.

We first consider the validity of the dominion and control provision of the second warrant. At the outset, we observe that evidence of dominion and control was not at all relevant to the state’s investigation of the alleged assault.

Even assuming, arguendo, that evidence of dominion and control was relevant to the state’s investigation, the warrant’s dominion and control provision still violated the Fourth Amendment’s specificity requirement.

 Our cases have distinguished the Fourth Amendment’s specificity requirement in two respects: breadth and particularity. Breadth is the requirement that a warrant “be limited by the probable cause on which the warrant is based,” while particularity is the requirement that a warrant “clearly state what is sought.” United States v. SDI Future Health Inc., 568 F.3d 684, 702 (9th Cir. 2009) (“SDI”). Together, these requirements protect against “the principal evil” of general warrants, which allowed royal officials during the colonial era to “search and seize whatever and whomever they pleased while investigating crimes or affronts to the Crown.”  “[G]iven the vast amount of data” stored on computers, a “heightened” specificity requirement applies “in the computer context.”

Starting with overbreadth, the Government has failed to identify any meaningful limitation on the scope of the dominion and control provision. Unlike the other provisions of the warrant—which were limited to communications between Holcomb and J.J., surveillance footage depicting Holcomb or J.J., location data, and the computer’s search history—the dominion and control provision was not limited to a particular type of evidence. In addition, again unlike the other provisions, the dominion and control provision lacked any temporal limitation, thereby authorizing the state to open and examine any file from any time period, including files that long predated the alleged assault.

We therefore conclude that the second warrant’s dominion and control provision was overbroad.

We similarly conclude that the dominion and control provision was insufficiently particular. As we have explained, “[t]he purpose of particularizing the items to be seized is to insure that when the warrant is executed, nothing is left to the officer’s discretion.” Because Holcomb’s computer contained thousands of files and because the dominion and control provision did not contain any temporal limitations, the examiner simply exercised his unfettered discretion in determining which files to scroll past and which files to open and examine pursuant to that provision. On that basis alone, we can conclude that the dominion and control provision was insufficiently particular.

Both because it was overbroad and because it was insufficiently particular, the dominion and control provision effectively transformed the second warrant into a general warrant. 

Even if the Government had preserved such an argument, the severability doctrine would not save the examiner’s search because it is clear that the examiner discovered the disputed evidence pursuant to the dominion and control provision alone.

In holding that the dominion and control provision transformed the second warrant into a general warrant, we do not mean to suggest that dominion and control provisions must always contain temporal limitations. However, on the facts of this case, where the Government has failed to establish that evidence of dominion and control was relevant to its search, where the Government knew the exact time period surrounding the incident it sought to investigate, where the affidavit did not establish probable cause to search for evidence outside that period, and where every other warrant provision sought to limit the scope of the warrant to that period, the unlimited dominion and control provision plainly violated the Fourth Amendment’s specificity requirement. Any other holding would allow any warrant with a dominion and control provision to function as a general warrant. The Fourth Amendment forecloses that result. 

Having determined that the dominion and control provision was invalid twice over, we proceed to consider whether the examiner nevertheless complied with the Fourth Amendment by executing the second warrant in good faith. Under the good-faith exception, if officers conduct a search pursuant to a search warrant that is later invalidated, they still satisfy the Fourth Amendment so long as they acted in “objectively reasonable reliance” on that warrant. 

The Supreme Court has recognized “four situations that per se fail to satisfy the good faith exception.” United States v. Underwood, 725 F.3d 1076, 1085 (9th Cir. 2013) (discussing United States v. Leon, 468 U.S. 897 (1984)). The four situations are: (1) where the affiant recklessly or knowingly placed false information in the affidavit that misled the issuing judge; (2) where the judge wholly abandons his or her judicial role; (3) where the affidavit is so lacking in indicia of probable cause as to render official belief in its existence utterly unreasonable; and (4) where the warrant is so facially deficient—i.e., in failing to particularize the place to be searched or the things to be seized—that the executing officers cannot reasonably presume it to be valid. In each of these situations, an officer “will have no reasonable grounds for believing that the warrant was properly issued.

As the district court acknowledged in this case, it remains unclear whether the Supreme Court intended for “the road between Leon’s good-faith exception and qualified immunity to run both ways.” Needham and Manriquez point in different directions on that question. While Needham suggests that courts should import the heightened qualified immunity standard, Manriquez rejected that approach in favor of the “reasonable officer” standard. Moreover, this three-judge panel cannot clarify the applicable standard without calling for en banc review.

Interesting though this question may be, however, we need not resolve the tension between Needham and Manriquez in this case because we conclude that the good faith exception does not apply under either standard. To begin with, our existing precedents clearly establish that warrant provisions like the second warrant’s dominion and control provision violate a defendant’s Fourth Amendment rights.

Together, Kow, SDI, and the cases on which they rely stand for two clearly established principles. First, when probable cause to search is limited to a particular location, suspect, time period, or type of evidence, any warrant provision that is wholly lacking in any corresponding limitation is overbroad and therefore facially deficient under the Fourth Amendment. Second, an officer who relies on any such provision while executing a search warrant does not act in good faith.

[W]e conclude that the examiner did not act in “objectively reasonable reliance” on the second warrant when he discovered the videos depicting child sexual abuse from November 2016

The Government also argues that the seizure of the three videos depicting child sexual abuse was independently authorized by another exception to the warrant requirement: the plain view doctrine. Under that doctrine, the government may seize evidence without a valid warrant so long as government officials are “lawfully searching the area where the evidence is found” and “the incriminatory nature of the evidence [is] immediately apparent.”  The burden of demonstrating that both requirements are satisfied lies with the Government.

The Government was not “lawfully searching the area where the evidence was found” because it found the three videos while executing a general warrant. Where “the plain view seizure was in the context of officers executing an essentially general warrant,” the “justification for the plain view is . . . absent.” The Government thus fails to satisfy the first requirement of the plain view doctrine.

3/24/25: reasonable suspicion + flight = probable cause

In United States v. Hamilton, --- F.4th ---, No. 22-10161 (9th Cir. 2025), the Court affirmed Hamilton’s conviction and sentence for being a felon in possession of a firearm and ammunition and possessing a firearm in furtherance of a drug-trafficking crime.

Here are the basic facts: Law enforcement had some specific information connecting Hamilton to an unlawful shooting, but did not have a warrant for his arrest. When they located and tried to stop him two weeks after the shooting, he ran. The officers chased Hamilton on foot for several blocks, and observed him reaching for his waistband. An officer ordered Hamilton to show his hands and get on the ground, but Hamilton continued running. A second police car stopped in front of Hamilton, and officers tackled him to the ground. Hamilton was handcuffed and arrested. After the arrest, officers searched Hamilton and found a gun, marijuana, scales, and $6,692 in cash.

Flight from law enforcement can be suggestive of wrongdoing and give rise to probable cause when coupled with specific reasons to suspect that the person fleeing may have engaged in criminal conduct. Here, law enforcement had specific information connecting Defendant Robert Hamilton to an unlawful shooting in downtown San Francisco. When they located and tried to stop Hamilton two weeks after the shooting, he ran. The totality of circumstances surrounding Hamilton’s flight gave the officers probable cause to arrest him. Therefore, we affirm the district court’s denial of Hamilton’s motion to suppress the evidence obtained from his arrest. We also reject Hamilton’s jury-instructions and sentencing-enhancement challenges and affirm his conviction and sentence. 

The district court concluded that the officers had a lawful basis to stop Hamilton because they reasonably suspected that he was involved in the Valentine’s Day shooting. Hamilton does not dispute this. Nonetheless, Hamilton asserts that the officers’ attempt to stop him was unlawful because they intended to conduct an arrest, not merely an investigatory stop, from the outset.

Under the circumstances presented, the officers’ intent when they initially approached Hamilton is immaterial because he ran before the officers could do anything other than order him to stop. Thus, in their initial approach, the officers only attempted a seizure. They did not actually seize Hamilton. And where no seizure occurred during the officers’ initial contact with Hamilton, the Fourth Amendment was not triggered.

Moreover, the Supreme Court has instructed that “outside limited contexts such as an ‘inventory search or administrative inspection . . . an officer’s motive [does not] invalidate[] objectively justifiable behavior under the Fourth Amendment.’” . . . .  And if Hamilton had not fled and the officers had immediately arrested him, a different analysis would apply. But that is not what happened, and we must decide this case based on the facts as they are, not as they might have been.

Hamilton further contends that the officers’ initial approach was improper because one of them falsely stated that there was a warrant for his arrest. While the officer’s statement about the existence of an arrest warrant was incorrect, the record does not establish whether it was a lie or a mistake. But even assuming it was a lie, there was no constitutional violation. Officers are not categorically prohibited from using deception in investigations. But deception may be unreasonable if it is used “to gain access to places and things [officers] would otherwise have no legal authority to reach.”

Here, the officers had reasonable suspicion that Hamilton was involved in the Valentine’s Day shooting, which Hamilton does not dispute. Therefore, they had a lawful basis to stop and question him without a warrant. 

Hamilton also argues that his arrest was unlawful because the officers did not have probable cause to believe he had committed a crime.

. The Supreme Court has instructed that “[h]eadlong flight—wherever it occurs— is the consummate act of evasion: It is not necessarily indicative of wrongdoing, but it is certainly suggestive of such.” Even where an “individual has a right to ignore the police and go about his business, . . . [f]light, by its very nature, is not ‘going about one’s business’; in fact, it is just the opposite.” 

That said, flight is not per se suspicious. Consistent with the Fourth Amendment’s totality standard, “[t]here may be circumstances where a person’s flight has a perfectly innocent and reasonable explanation” and thus does not reasonably engender suspicion.  And if the reason for the suspect’s flight is ambiguous—that is, it could have been to evade law enforcement or it could have been for some other innocent purpose—the flight itself cannot justify an arrest.

[W]hen the officers tackled Hamilton to stop his flight, they had reason to conclude that there was a “fair probability that [Hamilton] had committed a crime,” Struckman, 603 F.3d at 739, and the district court correctly concluded that Hamilton’s arrest was lawful. Therefore, we affirm the district court’s denial of Hamilton’s motion to suppress.

The Court also rejected Hamilton's challenges to the jury instructions and his sentence. 

3/21/25: Two SCOTUS decisions today

Beginning with Thompson v. United States, 604 U.S. ---, No. 23-1095 (2025), the Court held that 18 U.S.C. 1014, which prohibits “knowingly mak[ing] any false statement,” does not criminalize statements that are misleading but not false.

Chief Justice Roberts' opinion is very well written and worth the read.  Here are some key points. 

Patrick Thompson took out three loans totaling $219,000 from the same bank. Later, Thompson told the Federal Deposit Insurance Corporation (FDIC) that he had “borrowed . . . $110,000” from the bank. Thompson was indicted under 18 U. S. C. §1014 for making “false statement[s]” to the FDIC. Thompson argued that his statements were not false because he had in fact taken out a loan for $110,000 just as he said. Both the District Court and the Seventh Circuit held that they did not need to consider that argument. In their view, the prohibition in §1014 against “false statement[s]” extends to misleading ones as well, and Thompson’s statements were at least misleading in failing to mention the additional loans. The question presented is whether §1014 criminalizes statements that are misleading but not false. 

We start with the text. Section 1014 criminalizes “knowingly mak[ing] any false statement or report.” It does not use the word “misleading.” Yet false and misleading are two different things. A misleading statement can be true. And a true statement is obviously not false. So basic logic dictates that at least some misleading statements are not false.

Given that some misleading statements are also true, it is significant that the statute uses only the word “false.” If that word means anything, it means “not true,” both today and in 1948 when the statute was enacted. Just as a matter of plain text, then, a statement that is misleading but true is by definition not a “false statement.”

Adding “any” before “false statement” does not change that result. Contra, Brief for United States 19–20. Certainly, “any” has an “expansive meaning.”  But “[e]xpansive, yes; transformative, no.”

The Government wisely agrees that “false” means “not true.” Brief for United States 14. But, dictionary in hand, the Government notes that “false” can also mean “deceitful.” And, thesaurus in the other hand, the Government adds that “false and misleading have long been considered synonyms.” Absent from the Government’s account, however, is the fact that some misleading statements are not false, as the Government acknowledged at oral argument. Given that fact, the Government’s textual arguments simply point out the “substantial overlap” between the two terms. That overlap is beside the point. Certainly, the statute’s prohibition on “false statement[s]” could reach some statements that are “mislead[ing],” “deceitful,” “deceptive,” or “mendacious,” but only because those particular statements are also false. Regardless of whether other adjectives apply, the only relevant question according to the text of the statute is whether the statement is “false.” 

The Government argues that we should affirm on the alternative basis that Thompson’s statements were false. But neither the District Court nor the Seventh Circuit answered that question, and “we are a court of review, not of first view.” Our holding shows, however, that this question is the right one to ask under §1014. And as the litigation before us has clarified, even Thompson agrees that “[c]ontext obviously matters in determining whether a statement is false.”  

We agree with the parties that at least some context is relevant to determining whether a statement is false under §1014. We leave for remand the question whether a reasonable jury could find that Thompson’s statements in this case were false. 

In casual conversation, people use many overlapping words to describe shady statements: false, misleading, dishonest, deceptive, literally true, and more. Only one of those words appears in the statute. Section 1014 does not criminalize statements that are misleading but true. Under the statute, it is not enough that a statement is misleading. It must be “false.”

Next in Delligatti v. United States, 604 U.S. ---, No. 23-825 (2025), the Court held that the knowing or intentional causation of injury or death, whether by act or omission, necessarily involves the “use” of “physical force” against another person within the meaning of §924(c)(3)(A).  

Title 18 U. S. C. §924(c)(3)(A) defines a “crime of violence” to include a felony that involves the “use of physical force” against another person. In the context of a closely related statute, we have held that “the knowing or intentional causation of bodily injury necessarily involves the use of physical force.” United States v. Castleman, 572 U. S. 157, 169 (2014). This case asks whether that principle extends to §924(c)(3)(A) and, if so, whether the principle holds in cases where an offender causes bodily injury by omission rather than action. We answer both questions in the affirmative. 

This Court applies a “categorical approach” to determine whether an offense falls within the elements clause. Under that approach, we do not examine the defendant’s actual conduct. Instead, we ask whether the offense in question “always” involves the use, attempted use, or threatened use of force. Ibid. If the offense can be committed without the use, attempted use, or threatened use of force, it is not a crime of violence under the elements clause. 

The Second Circuit correctly held that causing bodily harm by omission requires the use of force. As in Castleman, the “use” of “physical force” in §924(c) encompasses the knowing or intentional causation of bodily injury. There is no exception to this principle when an offender causes bodily injury by omission rather than affirmative act. Delligatti’s §924(c) challenge therefore fails. 

Look for the government to rely on this holding to argue that inaction or passivity qualify as "use" in other contexts.  

3/19/25: Aggravated identity theft under 1028A and other issues

In United States v. Parviz, --- F.4th ---, No. 22-50160 (9th Cir. 2025), the Court affirmed Parviz’s conviction and sentence for one count of making a false statement on a passport application, 18 U.S.C. § 1542, and one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), arising from Parviz’s scheme to kidnap C.P., her biological daughter over whom she had lost her parental rights, and to take her out of the United States.

The Court's discussion of section 1028A is probably the most relevant for our practices.  The conviction arose from Parviz's application to get her daughter a passport 

[T]he passport application’s instructions specified that for any passport application, the applicant—including a minor—is required to appear in person. However, State Department policy allows for an exception to this requirement where the minor is medically unable to be present. See 22 C.F.R. § 51.28(a)(1) (authorizing exceptions to the in-person requirement, “pursuant to guidance issued by the Department”). To fit within this medical exception, Parviz submitted a fraudulent letter on the letterhead of the Lucile Packard Children’s Hospital (“Packard Hospital”) in Palo Alto, California. The letter, dated June 7, 2019, purported to be from “Dr. Bret Allen Barker, DNP, FNP,” and it stated that C.P. was under his care, was immunocompromised, and was “unable to leave the medical facility due to her critical medical condition.” The letter claimed that C.P. required “emergency travel to the U.K. for medically necessary operations and a personal appearance for the passport application process would pose an unsurmountable risk to the child’s health.” The letter also included Barker’s name, National Provider Index number (“NPI”), registered nursing number, and signature. Contrary to the representations in this letter, C.P. was in the care of her foster family in Texas, as her foster mother testified at trial; she had no ongoing health issues; she was not immunocompromised; and she had no scheduled medical operations. Barker was a nurse practitioner who had worked at Packard Hospital from March 2019 to April 2019, and he became romantically involved with Parviz in May 2019. But Barker had never met C.P., nor treated her as a patient, and he was not working at Packard Hospital on the date listed in the letter.

[U]nder Dubin, the evidence must be sufficient to show that Parviz’s misuse of Barker’s “means of identification” was “at the crux” of what made her passport fraud criminal, viz., the false statements made to secure C.P.’s passport. Moreover, where (as here) the predicate crime involves “fraud or deceit,” Dubin states that “the means of identification specifically must be used in a manner that is fraudulent or deceptive,” meaning that the “fraud or deceit” must go “to ‘who’ is involved.” Id. at 132. The evidence in this case is sufficient to satisfy that standard.

[C]rucially, the record evidence supports a rational inference that Parviz assembled the letter and forged Barker’s signature. Barker specifically testified that he did not prepare the letter or sign it. The Government presented Barker’s signature from his DMV records, which enabled the jury to contrast it with the signature on the fraudulent letter. In addition, Collin County officers found an unsigned copy of the letter in Parviz’s car when she was arrested. And, notably, the letter submitted to the passport office misspelled Barker’s middle name. 

On this record, a rational trier of fact could find that the use of Barker’s “means of identification”—namely, his name, NPI, and registered nursing number—was central to the fraudulent letter’s objective of establishing a medical excuse from the State Department’s regulation requiring a minor’s personal appearance for a passport application. 

Further, because Parviz prepared the letter and forged Barker’s signature, a rational jury could conclude that there was falsity as to “who” was making the critical misrepresentations contained in the letter.

Parviz separately contends that the phrase “without lawful authority” in § 1028A “must mean more than ‘used illegally,’ because the premise of the statute is that a predicate offense has been committed.”  In Parviz’s view, because she used Barker’s means of identification “with his complicity,” she did not use such means “without lawful authority.” 

In United States v. Osuna-Alvarez, 788 F.3d 1183 (9th Cir. 2015), we held that the language of § 1028A “clearly and unambiguously encompasse[d] situations like the present, where an individual grants the defendant permission to possess his or her means of identification, but the defendant then proceeds to use the identification unlawfully.”

Dubin explicitly declined to address the statutory meaning of “lawful authority.” See 599 U.S. at 128 n.8 (“The Court need not, and does not, reach the proper interpretation of ‘without lawful authority.’”). Because no intervening Supreme Court or en banc decision is “clearly irreconcilable” with Osuna-Alvarez, we remain bound by its construction of the phrase “without lawful authority” in § 1028A. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). And under Osuna-Alvarez, the district court’s instruction was correct, and the evidence was sufficient to find that Parviz had used Barker’s means of identification without lawful authority.  

The Court also rejected Parviz's challenges to her sentence. 

3/18/25: Healthcare kickbacks

In United States v. Enriquez, --- F.4th ---, No. 23-4424 (9th Cir. 2025), the Court affirmed the denial of Enriquez’s motion to dismiss an indictment charging him with conspiracy to receive healthcare kickbacks in violation of 18 U.S.C. § 371 and receiving prohibited payments in violation of the Anti-Kickback Statute (AKS).  Here are some important points from the opinion: 

On appeal, Enriquez contends the district court erred in denying his motion to dismiss the indictment because it failed to state an offense or, alternatively, was insufficiently specific. Both arguments rely on expanding the reach of Ruan v. United States, 597 U.S. 450 (2022), which held that Controlled Substances Act (“CSA”) Section 841’s exception for authorized prescriptions must be proven beyond a reasonable doubt. Enriquez argues that under Ruan’s logic, any “facially applicable” exception must be treated as a “quasi-element” and alleged in the indictment. More specifically, he argues that because his indictment alleged an employee-employer relationship, the government was required to plead facts alleging why the AKS bona fide employment relationship safe harbor did not apply. Because his indictment failed to allege the safe harbor’s inapplicability, Enriquez argues, the indictment failed to state an offense and the district court therefore erred by denying his motion to dismiss the indictment. We disagree that Ruan supports Enriquez’s position, and we affirm the denial of his motion to dismiss.

Congress chose to include each AKS safe harbor in a subsection full of statutory exceptions distinct from the prohibited conduct specified in Sections 1320a7b(b)(1) and (b)(2). That choice is consequential because it puts the AKS within the “settled rule” that statutory exceptions are treated as affirmative defenses when they are contained in “a proviso or other distinct clause, whether in the same section or elsewhere[.]”

[C]ourts have repeatedly concluded that the AKS’s bona fide employment relationship safe harbor is an affirmative defense

[W]e read Ruan’s holding more narrowly than Enriquez suggests. Ruan does not treat Section 841’s authorization exception “like an element” for every purpose.

[E]ven if Ruan (and not just Ninth Circuit precedent) required the government to allege Section 841’s authorization exception in an indictment, the same does not follow for the AKS’ safe harbors, which no court has ever deemed to be an element or a “quasi-element” of the statute.

We decline to extend Ruan to (a) the AKS and (b) pleading requirements. Because Ruan provides no reason to stray from the bedrock principle that indictments need not allege affirmative defenses, McKelvey, 260 U.S. at 357, we affirm the denial of Enriquez’s motion to dismiss for failure to state an offense.

An indictment must satisfy certain minimal standards of specificity to avoid being dismissed under Rule 12(b)(3)(B)(iii). Even if an indictment has pled each of an offense’s essential elements, it still lacks requisite specificity if it “fails to allege sufficient facts to facilitate the proper preparation of a defense and to ensure that the defendant[] [is] prosecuted on facts presented to the Grand Jury.” 

“The test for sufficiency of the indictment is not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.”

Because all elements of the conspiracy crime were pled in adequate detail, we affirm the district court’s denial of Enriquez’s motion to dismiss the indictment for insufficient specificity under Rule 12(b)(3)(B)(iii).

We find no reason to stretch Ruan beyond its logical limits. Because the government is not required to plead affirmative defenses in an indictment, and it pleaded all elements of the conspiracy offense in detail, count nine of the indictment was sufficient. Accordingly, the district court properly denied Enriquez’s motion to dismiss for failure to state an offense and lack of specificity. 

3/17/25: Two decisions today

In United States v. Thompson, --- F.4th ---, No. 22-30179 (9th Cir. 2025), on the government's appeal, a divided panel vacated Paige Thompson’s sentence on substantive reasonableness grounds.  

The case arose from a large data breach prosecution.  The district court correctly calculated Thompson’s sentencing range at 168 to 210 months of imprisonment. It then granted a roughly 98% downward variance to time served (approximately 100 days) and five years of probation.

The majority held the district court overemphasized Thompson’s personal story and committed a clear error of judgment in weighing several of the factors set forth in 18 U.S.C. § 3553(a).  

The dissent persuasively argued that the sentence was substantively reasonable under the abuse of discretion standard. 

In United States v. Rodriguez-Arvizu, --- F.4th ---, No. 23-393 (9th Cir. 2025), the Court affirmed the district court’s denial of Rodriguez-Arvizu’s motion to suppress his post-arrest statements in a case related to his participation in a marijuana “rip crew”—a group of armed individuals who steal drugs from smugglers.

The opinion covers a lot of ground and is worth reading.  Here are some key points. 

This appeal presents four questions: whether the district court erred in denying Rodriguez-Arvizu’s motion to suppress based on (1) an alleged violation of Fed. R. Crim. P. 4(c)(3)(A); (2) an alleged violation of his Fifth Amendment rights; (3) an alleged violation of his Sixth Amendment rights; and (4) an alleged violation of 18 U.S.C. § 3501 and McNabb-Mallory. 

Pursuant to Fed. R. Crim. P. 4(c)(3)(A), an arresting officer who does not possess a copy of the arrest warrant “must inform the defendant of the warrant’s existence and of the offense charged.” The Government does not contest the district court’s finding that the FBI agents did not tell Rodriguez-Arvizu the specific charges against him, but instead argues that “any failure” that occurred does not warrant application of the exclusionary rule.

Since the initial adoption of the Federal Rules of Criminal Procedure over eighty years ago, there has been little litigation regarding Rule 4(c)(3)(A). Notably, no court has yet held that suppression is warranted for a violation of this rule. Nonetheless, Rodriguez-Arvizu argues that suppression is justified in this case because Agent Ramirez “intentional[ly]” violated the rule for the purpose of circumventing his “important rights.” 

We agree with the district court that suppression is not warranted for the FBI agents’ violation of Rule 4(c)(3)(A). 

Agent Terwilliger’s and Agent Ramirez’s failure to inform Rodriguez-Arvizu of the precise charges against him does not meet the high bar required for suppression.  

Moreover, as the district court also pointed out, if we assume—as the D.C. Circuit has speculated—that Rule 4(c)(3)(A) was meant to protect a defendant’s Fifth Amendment right against self-incrimination, that right was not implicated here.

Here, there was no evidence that the FBI agents engaged in the kind of “deliberate, reckless, or grossly negligent conduct” that the exclusionary rule is meant to deter. Herring, 555 U.S. at 144. Moreover, the district court found that there was no evidence that the failure to abide by Rule 4 is a systemic problem either in the FBI or in federal law enforcement more broadly.  Therefore, the FBI agents’ violation of Fed. R. Crim. P. 4(c)(3)(A) does not warrant suppression of Rodriguez-Arvizu’s statements. 

Rodriguez-Arvizu next contends the district court erred in failing to suppress his statements based on a violation of his Fifth Amendment right to counsel. Once an accused person has “expressed his desire to deal with the police only through counsel,” that person “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”

The district court did not err in determining that Rodriguez-Arvizu did not unambiguously invoke his Fifth Amendment right to counsel. We have previously held that silence is insufficient to invoke this right.

We . . . conclude that Rodriguez-Arvizu’s failure to sign the I-214 Form was not sufficient on its own to invoke his Fifth Amendment right to counsel.

Regardless, the district court’s finding that there was no Miranda violation may also be affirmed because Rodriguez-Arvizu made spontaneous statements during the ride to the FBI office that reinitiated questioning, and the totality of the circumstances demonstrates that he knowingly and intelligently waived his Fifth Amendment right to counsel following this reinitiation. 

Under the Sixth Amendment, “the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right attaches “when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing.” United States v. Gouveia, 467 U.S. 180, 185 (1984). The burden is on the Government to prove that the defendant voluntarily, knowingly, and intelligently waived this right.

Rodriguez-Arvizu claims that he did not voluntarily, knowingly, and intelligently waive his Sixth Amendment right to counsel because the FBI agents’ violation of Rule 4(c)(3)(A) meant that he never understood why he was indicted or the purpose of the warrant.

[W]e agree with the district court that—given the totality of the circumstances—Rodriguez-Arvizu did not need to be told that he had been indicted to validly waive his Sixth Amendment right to counsel. While the Supreme Court has left open the question of “whether or not an accused must be told that he has been indicted before a post-indictment Sixth Amendment waiver will be valid,” like other circuits, we have thus far answered that question in the negative.

We reject Rodriguez-Arvizu’s suggestion that there is a categorical rule that a defendant must be notified of the charges in an indictment before he can validly waive his Sixth Amendment rights. Instead, we hold that the Sixth Amendment inquiry is contextual, and a waiver of the right to counsel is valid if the circumstances indicate the defendant was apprised of his rights, the criminal liability he potentially faced, and the gravity of his situation. Applying this rule here, the district court did not err in concluding that Rodriguez-Arvizu validly waived his Sixth Amendment right to counsel.

It remains true that the simplest way for the Government to prove that a defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel is to demonstrate that the defendant knew his specific charges. But that is not the only way to prove a valid waiver of this right. Under the context-specific analysis articulated here, the district court did not err in determining that the Government met its burden of proving that Rodriguez-Arvizu voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel. 

Finally, the district court did not err when it determined that Rodriguez-Arvizu’s confession did not fall outside the safe harbor period of 18 U.S.C. § 3501(c). Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure provides in relevant part that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.” The McNabb-Mallory rule clarifies that if this rule is violated, an arrested person’s confession is presumptively inadmissible.  McNabb-Mallory was modified by 18 U.S.C. § 3501(c), which created a safe harbor by stating that a confession is admissible so long as the confession was given “within six hours immediately following [the defendant’s] arrest or other detention.” 18 U.S.C. § 3501(c). The rule today is that “[w]hen a criminal defendant brings a suppression motion based on McNabbMallory, the district court looks to see whether the confession was obtained within six hours of arrest. If so, McNabb-Mallory does not bar its admission.”

We agree with the district court that there can be independent triggers for the statutory safe harbor clock when unrelated federal charges are at issue and that, given the circumstances of this case, the relevant six-hour clock only began to run when Rodriguez-Arvizu was arrested by the FBI.

Rodriguez-Arvizu’s confession at the FBI office, which took place within six hours of his second arrest, did not violate § 3501(c). 

[B]ecause the statutory scheme supports the conclusion that there can be independent triggers for the six hour safe harbor period for unrelated federal charges, and because the circumstances of Rodriguez-Arvizu’s two arrests demonstrate that the relevant six-hour clock only began upon his formal arrest by the FBI agents rather than any earlier point, Rodrigez-Arvizu’s confession took place within the safe harbor period.