12/10/25: possessing or transferring a machinegun, 18 U.S.C. § 922(o)

In United States v. Kittson, --- F.4th ---, No. 23-4132 (9th Cir. 2025), a divided Court affirmed Daniel Matthew Kittson’s conviction for possessing or transferring a machinegun in violation of 18 U.S.C. § 922(o).

Kittson was arrested as part of a sting operation.  He argued that section 922(o) was inapplicable because he transferred a machinegun to a federal agent.  The majority rejected his argument. 

Relevant here, § 922(o)(1) provides that “it shall be unlawful for any person to transfer or possess a machinegun.” But the prohibition does not apply to “a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof.” § 922(o)(2)(A). 

The majority held that the exceptions in § 922(o)(2) are “extremely limited” (citation omitted)), and only apply to transfers “authorized by the government for the benefit of federal, state, or local government entities.”  In short, "the involvement of an undercover agent does not shield a defendant from liability."  (The dissent disagreed on this point). 

The majority further held that the statute was not unconstitutional under the Second Amendment because “machine guns are ‘dangerous and unusual weapons’ that are unprotected by the Second Amendment.”

12/1/25: VICAR Case

In United States v. Dencklau, --- F.4th ---, No. 22-30068 (9th Cir. 2025), the Court affirmed Mark Leroy Dencklau’s and Chad Leroy Erickson’s convictions and life sentences for offenses arising from the kidnapping and murder of a former fellow member of the Gypsy Joker Motorcycle Club (GJMC).

For the most part, the opinion does not break new ground, but it does answer the question of whether a VICAR indictment must also include the elements of the predicate violent offenses.  The Court held it does not. 

Defendants-Appellants Mark Leroy Dencklau and Chad Leroy Erickson appeal their convictions and sentences of life imprisonment for murder in violation of the Violent Crimes in Aid of Racketeering statute (VICAR), 18 U.S.C. § 1959(a)(1); VICAR kidnapping resulting in death in violation of 18 U.S.C. § 1959(a)(1); kidnapping resulting in death in violation of 18 U.S.C. § 1201(a)(1); and conspiracy to commit kidnapping resulting in death, in violation of 18 U.S.C. §§ 1201(a)(1) and (c). Dencklau was also convicted of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d).

Our circuit has not yet ruled directly on whether a VICAR indictment must also include the elements of the predicate violent offenses. We previously have held that an indictment that tracks the charging statute is generally sufficient. See United States v. Alsop, 479 F.2d 65, 66 (9th Cir. 1973). And in United States v. Fernandez, we confirmed that an indictment that “expressly alleged the required elements” of a VICAR violation itself was “sufficient,” even where it did not allege the elements of the predicate offenses. 388 F.3d 1199, 1220 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005). More directly, the Second Circuit has instructed that “only a generic definition of an underlying state crime is required in a RICO indictment, as distinguished from the elements of the penal codes of the various states where acts of racketeering occurred.”

We are persuaded by the reasoning of our sister circuits in holding that where a VICAR indictment tracks the VICAR statute’s language, it sufficiently informs the defendant of his charge, even if it does not also enumerate the elements of the predicate state law crime, and so hold. 

The opinion also briefly addresses and rejects a host of other evidentiary and instructional claims.  If you have a gang RICO or VICAR case heading to trial, it is worth reading.   

11/17/25: Two criminal decisions today

First, in United States v. Allen, --- F.4th ---, No. 24-804 (9th Cir. 2025), the Court affirmed Johnathan Allen’s convictions in a case in which he contended that the district court erred by (1) dismissing his original and superseding indictments without prejudice for a violation of the Speedy Trial Act (STA), and (2) admitting unauthenticated documents.

As to the STA issue, the opinion is straightforward.  Consistent with existing law, the Court held, "the district court did not abuse its discretion by dismissing the indictments without prejudice." 

"In this case, the district court followed the statute and determined that all three factors enumerated in § 3162(a)(2) counseled dismissing Allen’s indictments without prejudice."

The Court also rejected Allen's evidentiary challenges to the admission of Facebook records. It held, "[t]he Facebook records were properly authenticated." 

Allen argues that because Facebook does not authenticate the substantive content of its messages (i.e., the discussion of Allen’s drug dealing found in the admitted evidence), the Facebook records were not kept in Facebook’s ordinary course of business as required by Rule 803(6). But the only function of Rule 902(11)—and by extension Rule 803(6) in the authentication context—is to certify that the Facebook records are what the government claims they are (i.e., records from Facebook). The government used Rules 902(11) and 803(6) to authenticate the technical rather than the substantive attributes of the Facebook records. 

The government separately authenticated the underlying content of the Facebook records through the normal process under Rule 901(a). Under Rule 901(a), “[t]o satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is.” Just to name a few pieces of evidence the government offered: the Facebook profile photograph in the Facebook records matched Allen’s appearance, the user had the same birthday as Allen, and the messages referred to Allen’s drug dealer moniker (“Ghost”) and cell phone number. Fed. R. Evid. 901(b)(4) (permitting authentication based on “appearance, contents, substance, internal patterns, or other distinctive characteristics of the item, taken together with all the circumstances”).

The Facebook records were thus authenticated under Rules 902(11) and 803(6) as records maintained by Facebook in the regular course of its business. And those records’ underlying content were authenticated under Rule 901(a) through the government’s proffered extrinsic evidence. The Facebook records were fully authenticated and were properly admitted as evidence at Allen’s trial.

Admitting the Facebook records also complied with Federal Rules of Evidence 403 and 404(b).

Second, in United States v. Hutton, --- F.4th ---, No. 24-2202 (9th Cir. 2025), the Court affirmed Robert Hutton’s conviction for sexually exploiting a minor in violation of 18 U.S.C. § 2251(a).

"Robert Hutton captured nude images and videos of his 14-year-old stepdaughter through a hidden camera he had placed in the bathroom of his home."  "Hutton raises three arguments on appeal. First, the images of the victim are not “lascivious” under the statute. Second, § 2251(a) is unconstitutionally vague as applied to him. And third, the evidence cannot show that he “use[d]” the victim under § 2251(a). Each argument fails."  

For the most part, the opinion simply applies previously established Ninth Circuit law.  It was probably published to address Hutton's argument "that the Supreme Court effectively overruled our 'use' cases in Dubin v. United States, 599 U.S. 110 (2023)." 

The Ninth Circuit was unconvinced:  

Dubin’s holding on the meaning of “use” in the context of § 1028A(a)(1) has little direct bearing on this court’s holdings on the meaning of “use” in the context of § 2251(a). Just because Congress codified a given definition in a fraud statute does not mean that it did the same for a child exploitation statute. Even Hutton agrees: “A definition that is appropriate in the aggravated identity theft context isn’t appropriate in the very different context of § 2251(a).

At bottom, nothing in Dubin disturbs our precedent interpreting § 2251(a). The presumption under Miller is against overruling circuit precedent: “If we can apply our precedent consistently with that of the higher authority, we must do so.” FTC v. Consumer Def., LLC, 926 F.3d 1208, 1213 (9th Cir. 2019). Even if there were “some tension” between Laursen and Dubin, that would not be enough to treat Laursen and its progeny as effectively overruled. Close v. Sotheby’s, Inc., 894 F.3d 1061, 1073, 1074 (9th Cir. 2018) (“Nothing short of ‘clear irreconcilability’ will do.”). Because Hutton’s reliance on Dubin does not come close to meeting Miller’s “high standard,” Rodriguez v. AT&T Mobility Servs. LLC, 728 F.3d 975, 979 (9th Cir. 2013) (citation omitted), his “uses” argument is foreclosed by our precedent.

Judge Graber also has an interesting concurrence, which begins:  "I write separately to state my view that judicial interpretations of 18 U.S.C. § 2251(a) have drifted far from the statutory text. That trend is perhaps understandable because the conduct at issue in cases of this sort is reprehensible and criminal. But by giving an expansive interpretation of a statute that carries a 15-year statutory minimum, we have done work ordinarily assigned to the legislature: deciding which crimes deserve which punishments. Rather than continuing to rely on the Judiciary to stretch the meaning of this statute to cover nearly all deplorable conduct by pedophiles—at increasing risk of the Supreme Court’s overruling our cases—Congress might consider clarifying criminal liability in this area of the law. Clear statutory text would aid prosecutors, courts, and victims."

10/27/25: Case on 18 U.S.C. § 922(g)(8)(C)(ii)

In United States v. Vandyke, --- F.4th ---, No. 24-2861 (9th Cir. 2025), on the government’s appeal, the Court reversed the district court’s order dismissing an indictment charging Ryan VanDyke with illegal firearm possession in violation of 18 U.S.C. § 922(g)(8)(C)(ii), and remanded for further proceedings.

Section 922(g)(8)(C)(ii) prohibits firearm possession by an individual subject to a court order that “by its terms explicitly prohibits the use, attempted use, or threatened use of physical force against [an] intimate partner or child that would reasonably be expected to cause bodily injury.”

VanDyke argued that application of the federal statute to him violated the Second Amendment.  The district court agreed.  The Ninth reversed. 

In light of intervening precedent in United States v. Rahimi, 602 U.S. 680 (2024), we reverse. As the Court wrote in Rahimi, “[s]ince the founding, our Nation’s firearm laws have included provisions preventing individuals who threaten physical harm to others from misusing firearms.” Id. at 690. The Court emphasized that a historical analogue suffices; a “historical twin” is not required. Id. at 692 (quoting New York State Rifle & Pistol Ass’n, Inc. v. Bruen, 597 U.S. 1, 30 (2022)). We also have a long historical tradition concerning “categories of persons thought by a legislature to present a special danger of misuse.” Id. at 698; see also United States v. Duarte, 137 F.4th 743, 756–61 (9th Cir. 2025) (en banc). Such categories include criminals facing serious pending charges on pretrial release. See United States v. Perez-Garcia, 96 F.4th 1166, 1182–84 (9th Cir. 2024), cert. denied, 145 S. Ct. 2707 (2025). VanDyke fits this description to a tee. We conclude that Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke. 

Section (C)(ii)’s “why” and “how” are analogous to two historical traditions of firearm regulation. The first tradition is individual disarmament based on a judicial determination of dangerousness, as embodied by the surety and goingarmed laws relied upon in Rahimi. 602 U.S. at 695–700. The second tradition is categorical disarmament, as manifested in laws forbidding firearm possession by whole groups of people whom “the legislature deemed dangerous.”

We conclude that the justification for the entry of the no-contact order against VanDyke—and thus this application of Section 922(g)(8)(C)(ii)—was the state court’s implicit determination that he posed a threat to the physical safety of his victim and other protected persons. This is not just analogous, but virtually identical, to the justification that the Court upheld in Rahimi. Like our sister circuits, given such a strongly implied dangerousness finding by the state court, we see no need to require further documentation. See Boyd, 999 F.3d at 187; Gordon, 137 F.4th at 1157. VanDyke’s argument ignores the terms of Section (C)(ii) and the structure of Idaho law. Cf. United States v. Reese, 627 F.3d 792, 802–04 (10th Cir. 2010), abrogated on other grounds by Bruen, 597 U.S. 1 (concluding, for similar reasons, that “no [explicit credible-threat] findings were necessary” to establish that Section (C)(ii) was intended to keep firearms out of the hands of those who pose a heightened danger of misuse towards an intimate partner or child).  

In addition to the tradition of individualized disarmament, America’s history of firearm regulation also includes “longstanding prohibitions” on firearm possession by certain categories of people. District of Columbia v. Heller, 554 U.S. 570, 626 (2008). Categorical disarmament is based on legislatively presumed danger, rather than an individualized assessment of risk. Duarte, 137 F.4th at 759 (“The historical record reveals a host of regulations that disarmed those whom the legislature deemed dangerous on a categorical basis.”). 

VanDyke falls within at least one category of people who were historically disarmed on a categorical basis: criminal defendants facing serious charges pending trial, including those eligible for pretrial release.

Section 922(g)(8)(C)(ii) is constitutional as applied to VanDyke under the historical traditions of individual disarmament and categorical disarmament. We reverse the district court’s dismissal of the indictment. 

10/20/25: Considering information from a psychological evaluation during sentencing

In United States v. Davis, --- F.4th ---. No. 24-1099 (9th Cir. 2025), the Court affirmed Davis's sentence for making a false statement during a firearms transaction, making a false statement in an application for a passport, and aggravated identity theft.

After pleading guilty to various crimes, Alexandre Zdenek Davis asked the district court to order a psychological evaluation under 18 U.S.C. § 4241 to determine his mental competency before sentencing. He also requested that his evaluation be filed with the court, as required under the statute. But when unfavorable information from the evaluation ended up in his presentencing report, Davis apparently had a change of heart and objected to the court considering that information at sentencing.

On appeal, Davis contends that the district court’s use of his psychological evaluation violated his Fifth Amendment right against self-incrimination. But the Supreme Court case that Davis invokes to support his claim, Estelle v. Smith, 451 U.S. 454 (1981), does not extend the right against self-incrimination so far. We thus hold that the district court did not err by considering Davis’ voluntary psychological evaluation during sentencing. Davis also challenges two other aspects of his sentence, but those claims are barred by the waiver of appeal in his plea agreement.  We affirm the sentence.

Before reaching the merits of Davis’ Fifth Amendment claim, we must determine whether he waived his right to appeal it. Under his plea agreement, Davis may not appeal “any aspect of the sentence, including conditions of probation or supervised release.” 

When a defendant knowingly and voluntarily waives his right to appeal his sentence, this court generally will not review the merits of an appeal. Wells, 29 F.4th at 583–84. But under the Bibler exception, we will hear an appeal despite a waiver when a sentence is “illegal.” United States v. Bibler, 495 F.3d 621, 624 (9th Cir. 2007). “A sentence is illegal if it . . . violates the Constitution.” Id. (citation omitted). Specifically, a defendant may escape an appeal waiver under the Bibler exception “if (1) the defendant raises a challenge that the sentence violates the Constitution; (2) the constitutional claim directly challenges the sentence itself; and (3) the constitutional challenge is not based on any underlying constitutional right that was expressly and specifically waived . . . .” Wells, 29 F.4th at 587. 

Even if the Bibler exception to an appellate waiver applies here, Davis’ Fifth Amendment claim ultimately fails on the merits.

Davis argues that by considering his psychological evaluation at sentencing, the district court forced him to incriminate himself in violation of the Fifth Amendment. Davis did not receive a Miranda warning before his evaluation, although he consented to the evaluation after the examiner reminded him that the results would be provided to the court. Because Davis did not object to the use of the evaluation on Fifth Amendment grounds during sentencing, we review his claim for plain error. See Wells, 29 F.4th at 592. We conclude that the district court did not err by considering Davis’ evaluation.

[W]e find that the Court’s holding in Estelle does not extend beyond the “distinct circumstances” of that case to Davis’ psychological evaluation here. See 451 U.S. at 466. The Estelle court made clear that its decision did not necessarily apply to “all types of interviews and examinations that might be ordered or relied upon to inform a sentencing determination,” id. at 469 n.13, and we hold that Estelle does not apply to the examination in this case. The district court did not violate Davis’ right against self-incrimination by considering the results of his voluntary examination when determining his sentence.

10/10/25: Case on facilitation and plain error

In United States v. Tainewasher, --- F.4th ---, No. 243634 (9th Cir. 2025), a divided panel affirmed Samantha Marie Tainewasher’s conviction for illegal use of a communication facility in the commission of a drug felony in violation of 21 U.S.C. § 843(b).

Tainewasher first contend[ed] that the district court plainly erred by failing to instruct the jury that, to convict her of facilitation, it must find that the underlying drug felony was actually committed.  Assuming the district court’s instruction was obvious error by not requiring that finding, we conclude it did not “affect [Tainewasher’s] substantial rights, meaning . . . there was [no] reasonable probability that it affected the outcome of the district court proceedings.” United States v. Conti, 804 F.3d 977, 981 (9th Cir. 2015) (internal quotation marks and citation omitted). Tainewasher’s Facebook messages clearly indicate that a drug felony was committed, and the defense did not dispute the underlying evidence nor ask the jury to acquit her of the communication-facility charge at trial.

Tainewasher also argues that the district court plainly erred by failing to give the jury a specific unanimity instruction regarding the drug felony she allegedly facilitated. “[A] specific unanimity instruction is required if there is a genuine possibility of jury confusion or a possibility that a conviction may occur as the result of different jurors concluding that the defendant committed different acts.” United States v. Lapier, 796 F.3d 1090, 1096 (9th Cir. 2015) (citation and internal quotation marks omitted). Courts look at the text of the indictment, the clarity of the government’s argument, the complexity of the evidence, and the intelligibility of the jury instructions to assess the “risk that different jurors voted to convict on the basis of different facts establishing different offenses.” Id. at 1097. Given the simplicity of the evidence, argument, and instructions related to the communication-facility charge in this case, Tainewasher fails to show that any error affected her substantial rights.

Judge Graber dissented:

In order to prove that Defendant was guilty of violating 21 U.S.C. § 843(b), which criminalizes the use of a “communication facility in committing or in causing or facilitating the commission” of a drug felony, the government must prove that an underlying drug offense occurred. The jury’s instructions here did not require that finding, instead allowing the jury to convict Defendant even if no drug offense occurred. The opinion nevertheless affirms on the ground that Defendant failed to show a reasonable likelihood of a different outcome. I strongly disagree with that conclusion. The government submitted nothing more than a few informal, jargon-filled Facebook chat messages: no drug evidence, no witness testimony, no tracking information—nothing other than the messages quoted in the opinion. In light of that incredibly flimsy evidence, a properly instructed jury almost certainly would harbor a reasonable doubt as to whether a completed drug offense in fact occurred. 

Additionally, the opinion has chosen merely to assume the first two prongs of the plain-error test. By doing so, the opinion fails to clarify and correct Ninth Circuit law on important legal issues that arise often. Parties in future cases, the district courts, and we deserve precedential guidance. Either in this case or in a future appropriate case, we should convene en banc in order to provide that guidance. 

If a controlling precedent by the Supreme Court or by us is on point, then the error is plain. United States v. Ameline, 409 F.3d 1073, 1078 (9th Cir. 2006) (en banc). But— contrary to the government’s argument here—we do not stop our analysis if no binding precedent is on point. Instead, we look to other considerations to determine whether the issue is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. “We must consider whether the available authorities provide a clear answer to the question before us.”

In short, in assessing whether an error is “plain,” we must consider the views of other circuits even if no binding precedent is on point. Our objective is to determine whether the issue at hand is “subject to reasonable dispute,” Puckett, 556 U.S. at 135, not to determine simply whether the issue is controlled by binding precedent. And, as the cases above illustrate, how other circuits have decided the issue can inform our analysis as to the existence—or not—of a reasonable dispute.

In some cases, including United States v. Turman, 122 F.3d 1167 (9th Cir. 1997), we described plain error as “error that is so clear-cut, so obvious, a competent district judge should be able to avoid it without benefit of objection.” Id. at 1170. In Henderson, 568 U.S. at 279, the Supreme Court expressly rejected that formulation. Questioning whether the district judge should have caught the error asks the question at the wrong time—at the time of the error rather than at the time of appeal. Id. Moreover, as the Court explained, the purpose of Rule 52(b) of the Federal Rules of Criminal Procedure has nothing to do with measuring the competency of district judges: “[P]lain-error review is not a grading system for trial judges. It has broader purposes, including in part allowing courts of appeals better to identify those instances in which the application of a new rule of law to cases on appeal will meet the demands of fairness and judicial integrity.” Id. at 278. Rule 52(b) seeks a fair and just result, striking a balance between, on the one hand, the ordinary judicial-efficiency principle that arguments not raised initially may not be raised on appeal and, on the other hand, the liberty interests of a criminal defendant.

Our old formulation of the test, as well as its variants, is thus doubly wrong: asking a question about the wrong time (at the time of trial rather than at the time of appeal) and about the wrong subject matter (the district judge’s perspicacity rather than the obviousness of the error). Regrettably, some of our cases have continued to use such formulations even after Henderson. E.g., United States v. Hackett, 123 F.4th 1005, 1011–12 (9th Cir. 2024); United States v. Rusnak, 981 F.3d 697, 705 (9th Cir. 2020); United States v. Bain, 925 F.3d 1172, 1178 (9th Cir. 2019). The en banc court should overrule our continued application of the antiquated formulation that the Supreme Court expressly rejected. The proper inquiry is simply whether, at the time of appeal, an error is “clear” or instead is “subject to reasonable dispute.” Puckett, 556 U.S. at 135. 

9/26/25: Restitution case

In United States v. Wells, --- F.4th ---, No. 23-3969 (9th Cir. 2025), the Court vacated the district court’s restitution orders, and remanded, in a case concerning the extent to which the funds in a federal retirement savings account, known as a Thrift Savings Plan (TSP) account, are available to compensate crime victims under the Mandatory Victims Restitution Act of 1996 (MVRA).

In a prior appeal, the Court affirmed James Michael Wells’ convictions for murdering two co-workers at a U.S. Coast Guard maintenance facility, but vacated the district court’s restitution order. On remand, the district court issued amended restitution orders, which authorized the government to collect, as a lump sum, all of the funds held in his TSP account. In this appeal, Wells challenged the orders issued on remand.

This case concerns the extent to which the funds in a federal retirement savings account, known as a Thrift Savings Plan (“TSP”) account, 1 are available to compensate crime victims under the Mandatory Victims Restitution Act of 1996 (“MVRA”). TSPs are part of a larger statute, the Federal Employees’ Retirement Systems Act (“FERSA”), which established a comprehensive retirement program for federal employees. Defendant James Michael Wells appeals the district court’s restitution orders, which authorized the government to collect, as a lump sum, all of the funds held in his TSP account. The parties agree that a valid restitution order was entered and that a TSP statutory provision, 5 U.S.C § 8437(e)(3), makes at least some of Wells’ TSP funds subject to government collection. 

The government argues that a TSP regulation, 5 C.F.R. § 1653.33, allows it to collect the entirety of a defendant’s TSP account balance in one lump-sum payment—i.e., completely cash out the account—whenever a court issues a valid restitution order under the MVRA, 18 U.S.C. § 3663A. Wells argues that the TSP statutory scheme protects his wife’s legal interest in his account and therefore limits the government to garnishing only periodic payments from the account. 

We conclude that the government can completely cash out a defendant’s TSP account to satisfy a restitution order under the MVRA only when the plan’s terms would allow the defendant to do so at the time of the order. Because the TSP’s spousal consent provision did not permit Wells to completely cash out his account unilaterally at the time he was ordered to pay restitution, neither could the government. Accordingly, we vacate the district court’s restitution orders and remand for proceedings consistent with this opinion.

Under the MVRA, the government cannot enforce a restitution order by cashing out a defendant’s retirement plan account if the retirement plan’s terms prohibit the defendant from doing so without spousal consent. Here, FERSA § 8435 provides the relevant terms of Wells’ retirement plan. Section 8435 prohibits Wells from cashing out the balance of his TSP account without his spouse’s consent. Section 8437(e)(3) does not expand the government’s authority under the MVRA, nor does it override FERSA’s spousal protections. Accordingly, we vacate the district court’s restitution orders and remand for restitution proceedings consistent with this opinion, including a determination of whether Wells’ TSP funds constitute “earnings” under 15 U.S.C. § 1673 such that any garnishment would be limited to 25% under the MVRA.