7/21/26: Actual juror bias

In United States v. Collar, --- F.4th ---, No. 23-2939 (9th Cir. 2026), the Court vacated Attila Colar’s conviction on 44 counts arising from an alleged scheme to defraud the Paycheck Protection Program and efforts to obstruct the investigation, reversed the district court’s judgment, and remanded for a new trial based on the district court's failure to adequately address a juror bias.

The Sixth Amendment guarantees criminal defendants the right to trial by an impartial jury. The participation of even a single biased juror in rendering a guilty verdict is structural error requiring reversal. To safeguard this right, a district court must address any signs of bias during jury selection and throughout trial. The court has broad discretion over how to investigate a juror’s impartiality. That discretion, however, governs the form of the inquiry, not whether to conduct one. Once a colorable issue of juror bias arises, the court must investigate before the juror continues to serve, and the inquiry must match the seriousness of the claim. The court cannot defer that obligation simply because the juror is an alternate. 

A jury convicted Attila Colar on 44 federal counts arising from an alleged scheme to defraud the Paycheck Protection Program and efforts to obstruct the investigation. At voir dire, Colar advanced a defense theory that he maintained throughout his trial: law enforcement targeted him based on his race and religion. After the jury was impaneled, an alternate juror expressed actual bias against Colar. He told the court that he had a strong negative reaction to Colar’s defense and that he had concluded that the defense lacked substance and credibility. 

The district court abused its discretion by deferring any meaningful investigation into the juror’s bias until he was needed on the regular panel. And its belated inquiry did not confirm that the juror could set aside the bias he previously expressed or that continued exposure to the defense theory would not revive it. The juror’s resulting participation in the verdict was structural error. We reverse and remand for a new trial.

A district court’s duty to protect against juror bias begins, but does not end, at voir dire. Voir dire allows the parties and the court to identify and investigate prejudice at the outset. Rosales-Lopez v. United States, 451 U.S. 182, 188 (1981). But the court’s obligation does not end when the jury is impaneled; trial courts must remain “ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences when they happen.” Smith v. Phillips, 455 U.S. 209, 217 (1982). When information casting doubt on a sitting juror’s impartiality comes to the court’s attention during trial, its continuing obligation to ensure an impartial jury can be described in two steps.

First the court must assess whether the information before it amounts to a “colorable claim of juror bias.” Dyer, 151 F.3d at 974. A colorable claim is not “wholly insubstantial and frivolous.” See Keniston v. Roberts, 717 F.2d 1295, 1298 (9th Cir. 1983). If the information does not rise to a colorable claim, the inquiry ends. But a court presented with a colorable claim of juror bias must take a second step and inquire further. It “must undertake an investigation of the relevant facts and circumstances” and “erect[], and employ[], a suitable framework for investigating the allegation of bias and gauging its effects.” 

The court has considerable discretion in how it investigates juror bias. It may attempt a rehabilitative colloquy,see United States v. Alexander, 48 F.3d 1477, 1484 (9th Cir. 1995), hold an evidentiary hearing, see Hendrix, 549 F.2d at 1227⁠–⁠29, or excuse the juror outright, see Gonzalez, 214 F.3d at 1114. Still, this discretion is “not unbounded.” United States v. Eubanks, 591 F.2d 513, 516 n.3 (9th Cir. 1979). Which framework fits depends on “the content of the allegations, including the seriousness of the alleged misconduct or bias, and the credibility of the source.” Hendrix, 549 F.2d at 1227⁠–⁠28; Dyer, 151 F.3d at 975 (noting that an in camera hearing to investigate potential bias must “be reasonably calculated to resolve the doubts” about a juror’s impartiality). The more serious the claim, the more in-depth the inquiry must be. See Hendrix, 549 F.2d at 1229. In conducting this inquiry, the court “must find facts, not make assumptions,” Dyer, 151 F.3d at 976, resolving any doubts about the juror’s impartiality against the juror, Gonzalez, 214 F.3d at 1114. And the court should promptly investigate such claims, rather than “leaving the matter in doubt” and the juror in place. See Dyer, 151 F.3d at 976. 

Applying this framework, we hold that the district court abused its discretion. We appreciate the difficulty of addressing a pro se defendant’s challenge to a vocal alternate juror. But Juror 48’s statements raised a colorable issue of whether he was biased. That demanded a searching inquiry before he continued to serve on the jury as an alternate. Instead, the court deferred an investigation until Juror 48 was needed for the regular jury panel. This was legal error. See Hinkson, 585 F.3d at 1261⁠–⁠62. And the court’s belated investigation, after Juror 48 had heard evidence, failed to establish that he set aside the bias he previously expressed or that continued exposure to the defense theory would not revive it. Its finding that Juror 48 was not actually biased thus lacked sufficient support in the record. Id. at 1262.  

7/2/26: Case on Sentencing Guidelines for money laundering offenses

In United States v. Shi, et al., --- F.4th ---, No. 24-2054 (9th Cir. 2026), the Court affirmed in part and vacated in part the sentences imposed on Defendants Blade Bai, Bowen Hu, and Tairan Shi following their convictions for offenses arising from their participation in a sophisticated scheme to launder Target gift cards purchased by telephone-scam victims; and remanded for a limited resentencing. 

This case is about how to properly calculate the Guidelines for these types of offenses. 

Over the course of a year, Defendants Blade Bai, Bowen Hu, and Tairan Shi (Defendants) participated in a sophisticated scheme to launder Target gift cards purchased by telephone-scam victims. The jury convicted Defendants of conspiracy to commit money laundering in violation of 18 U.S.C. § 1956(h) (Count 1). The jury also convicted Bai of conspiracy to commit money laundering while under release in violation of 18 U.S.C. §§ 1956(h) and 3147 (Count 2).1 Defendants appeal their sentences, challenging the district court’s calculation of the loss amount, application of the sophisticated laundering enhancement, and application of the aggravated and minor role adjustments. For the reasons below, we affirm as to the calculation of the loss amount and role adjustments but reverse as to the sophisticated laundering enhancement.

We first consider Defendants’ claims regarding the district court’s calculation of loss amount for the base offense level determination. Defendants contend that (1) as a matter of law the intended loss amount may not be included in the value of laundered funds, (2) the district court improperly calculated the amount of laundered funds, and (3) if the loss amount calculation was not error, the district court should have applied a three-level reduction under U.S.S.G. § 2X1.1(b)(2). 2 For the reasons discussed below, we reject these arguments and conclude that the district court properly applied and calculated the loss amount.

To determine the offense level, the district court applied § 2X1.1, which is the starting point for sentencing calculations of offenses involving attempts, solicitations, and conspiracies not already covered by specific offense guidelines. Under § 2X1.1(a), courts calculate the base offense level by using “[t]he base offense level from the guideline for the substantive offense, plus any adjustments from such guideline for any intended offense conduct that can be established with reasonable certainty.” (Emphases added). The “substantive offense” “means the offense that the defendant was convicted of soliciting, attempting, or conspiring to commit.” Id. cmt. n.2. 

Accordingly, the district court turned to § 2S1.1, the money laundering guideline. Section 2S1.1(a)(2) provides for a base offense level of “8 plus the number of offense levels from the table in § 2B1.1 (Theft, Property Destruction, and Fraud) corresponding to the value of the laundered funds.” The district court found that the value of the laundered funds conspired to be laundered exceeded $1.5 million but was less than $3.5 million. It thus increased Defendants’ base offense level by 16 pursuant to § 2B1.1(b)(1)(I) for a total level of 24. 

Defendants contend this analysis was error, arguing that the term “adjustments” as used in § 2X1.1(a) refers only to specific offense characteristics under § 2S1.1(b), and does not apply to alter the base offense level. Thus, under Defendants’ theory, the district court only considers intended loss when looking at specific offense characteristics.

[W]e conclude that the district court did not err by considering the intended loss as part of the “value of the laundered funds” under § 2S1.1(a)(2). 3 Defendants’ “intended conduct is a proper basis for the enhancements the district court applied,” including an “enhancement[] for loss amount . . . based on conduct that [they] intended but did not carry out.”

Defendants also argue that even if the district court did not err by considering the intended loss in its base offense level determination, it nevertheless improperly calculated the amount of funds laundered. At sentencing, the evidence showed, and the district court agreed, that the total value of laundered funds came to $2.48 million. Defendants argue that the district court wrongfully assumed that every single card number was valued at $500, constituted proceeds of a specified unlawful activity, and was successfully laundered. 

We see no basis to disturb the district court’s findings on review. The Government presented evidence extracted from Defendants’ WeChat messages showing that over the course of 12 months, Defendants received 5,256 unique gift card numbers from Magic Lamp. After further automated extraction and manual review, the Government calculated that the average value of each card was $472. Thus, the total value came to $2.48 million.

Finally, Defendants alternatively assert that if the district court properly calculated their base offense level, it should have also granted them a three-level reduction under § 2X1.1(b)(2).

The district court did not plainly err by not applying this three-level reduction. The evidence showed that Defendants engaged in a money laundering scheme for over a year. There is no indication that they intended to stop their unlawful activities until Bai was arrested in November 2020. And the jury found in Count 2 that even the first arrest did not stop Bai from continuing to offend. Further, Magic Lamp continually supplied Defendants with cards for the duration of the conspiracy, supporting the inference that the cards they transacted were successfully laundered. In sum, we hold that the district court did not err with respect to its calculation of loss amount.

Defendants next challenge the two-level enhancement for sophisticated laundering under § 2S1.1(b)(3).

The district court determined that Defendants were engaged in the business of laundering funds and so applied subsection (b)(2)(C) to increase Defendants’ offense level by four. It also applied subsection (b)(3) on the basis that Defendants engaged in sophisticated laundering, which increased the offense level by another two levels. Defendants thus received a six-level total increase under § 2S1.1(b). The issue we must decide is whether subsection (b)(3) requires the district court to have actually imposed the two-level increase under subsection (b)(2)(B), or if it is enough simply that the defendant was convicted under 18 U.S.C. § 1956.

As an initial matter, the parties dispute the applicable standard of review.

Defendants respond that “it is claims that are deemed waived or forfeited, not arguments.” United States v. Pallares-Galan, 359 F.3d 1088, 1095 (9th Cir. 2004). They assert that de novo review applies because though their argument now includes condition (A) as a basis for why subsection (b)(3) does not apply, their general claim that subsection (b)(3) does not apply was raised to the district court. Defendants have the better argument.

[T]he plain language and structure of § 2S1.1 leads us to conclude that a district court must actually apply (b)(2)(B) before a defendant can be subject to (b)(3). Because the district court here applied (b)(2)(C), and not (b)(2)(B), it improperly imposed the two-level enhancement under (b)(3) for sophisticated laundering. This error requires that we vacate and remand for the limited purpose of adjusting the guideline computation and resentencing the Defendants. The district court is not required to conduct a plenary resentencing.

Finally, we consider the role adjustments applied to Hu’s and Shi’s sentences. For the reasons discussed below, we affirm the district court’s application of the aggravated role adjustment to Hu and Shi and its decision not to grant Shi a minor role adjustment.

6/29/26: SCOTUS on the Fourth Amendment and the Ninth on return of property

First, in Chatrie v. United States, 609 U.S. ---, No. 25-112 (2026), the Supreme Court majority held that Police officers conducted a Fourth Amendment search when they acquired Chatrie’s location data from Google because an individual has a reasonable expectation of privacy in his cell-phone location information.  In other words, the Court held that geo-fence warrants implicate the Fourth Amendment.  The majority's decision, however, is a bit unusual because it does not consider the validity of the warrant obtained, but only whether a warrant was necessary at all. 

In recent years, law enforcement officers have employed so-called geofence warrants to obtain information that technology companies collect about their users’ cell-phone locations. Suppose that investigators know a crime was committed at a particular place and time, but do not have a suspect. They may draw a “geofence”—a virtual perimeter—around the crime scene and get a warrant compelling a company to hand over data about the cell phones located in that area near the time of the crime. Following a process specified in the warrant, the company will turn over the cell-phone data and eventually identify by name one or more of the users thus disclosed. 

The geofence warrant at issue here was directed to Google, and used to solve a bank robbery. Hundreds of millions of Google users have activated a service called Location History, which records the location of a user’s cell phone every two minutes or so. Through a geofence warrant, police officers required Google to turn over Location History data revealing cell phones within the vicinity of a bank at around the time it was robbed. At the end of the multi-step process described in the warrant, Google gave the police three names. The Federal Government soon charged one of the individuals thus identified, petitioner Okello Chatrie, with committing the crime. 

Today, we consider how the Fourth Amendment applies to that use of a geofence warrant. Answering that question in full would mean deciding whether the police conducted a Fourth Amendment “search” when they acquired the cellphone data leading to Chatrie’s arrest and, if so, whether that search was reasonable given the features of the warrant they employed. We decide the first part of that inquiry today, concluding that the police conducted a search when they gained access to Location History data. An individual has a reasonable expectation of privacy in records about his cell phone’s location, and police intrude on that constitutionally protected interest when they demand the information—even though for only a limited time, and from a third-party tech company. We leave to the Court of Appeals the further question whether, given the warrant issued, the search here was reasonable, meaning that each of its steps was properly described with particularity and found to be supported by probable cause.

We granted certiorari solely on the question whether the police violated the Fourth Amendment in obtaining Chatrie’s location data, thus declining to consider the exclusionary rule issue. See 607 U. S. 1148 (2026). The disputed Fourth Amendment question divides into two parts. First, did law enforcement officials conduct a search under the Fourth Amendment when they acquired Chatrie’s location data from Google? We hold that they did because an individual has a legitimate expectation of privacy in his cell-phone location data. Second, did the multi-step geofence warrant issued here make that search reasonable? We leave that question—which requires deciding whether the warrant satisfied the Fourth Amendment’s probable cause and particularity requirements at each stage of the search process—to the Court of Appeals to address in the first instance.

Whatever the form of an attempted incursion, the Fourth Amendment protects Americans’ long-held conviction that no government official should have free access to the most closely kept aspects of their lives.

Contrary to the Government’s view, an individual has a legitimate expectation of privacy in the information Location History collects about his cell phone’s—meaning his own—movements. The police invade that expectation, and thus conduct a search, when they acquire that information, even though for only a limited period of time and even though via a third-party tech company.

Location History resembles other private materials—think of emails, documents, photographs, or calendars—that even if stored on Google’s servers, a user reasonably views as his own. And as a result, that he reasonably expects to be shielded from the “inquisitive eyes” of the government. 

The Government replies with an odd argument. It thinks that “tracking [someone] into a private residence”—yes, even for two hours—would “probably” be a search, but tells us not to worry because Chatrie did not go home. Tr. of Oral Arg. 98, 134. That approach, however, is foreign to the way the Fourth Amendment works. Whether something is a search does not depend on what it finds. See Di Re, 332 U. S., at 595 (“[A] search is not to be made legal by what it turns up. In law it is good or bad when it starts”). An officer, after all, cannot know the fruits of a given surveillance in advance. The surveillance must be either a search or not regardless. The Government’s concession thus gives away its argument that, for purposes of the Fourth Amendment, two hours of cell-phone location data is not enough.

Location History is even more “revealing” than CSLI, because it provides a yet more precise record of an individual’s movements. See supra, at 16–17. Access to that record enables officials to undertake nearly perfect, retrospective surveillance of countless persons and places. See supra, at 17–18. And for Location History, that surveillance is based on information that a user reasonably understands as his own, even though stored on Google’s servers—much like his emails, photos, and calendar entries. See supra, at 18. Likewise, the information is “not truly shared,” in the normal sense of wanting a third party to see or use it. Carpenter, 585 U. S., at 315. The exposure of that information to Google is merely what happens when a user avails himself of one of the services on his cell phone. Or said a bit differently, it is the automatic price of conventional cellphone usage—which, just as Carpenter noted, is a “pervasive and insistent part of daily life.” Ibid. So just as the third-party doctrine did not apply in Carpenter, it does not apply here.

For all those reasons, we hold that police officers invade a cell-phone user’s reasonable expectation of privacy when they access his Location History. It does not matter if the time period scrutinized was only two hours. Nor does it matter that the materials obtained were handed over by a third-party tech company. When the government “accesses historical cell phone” location information—Location History as much as CSLI—it “conducts a search under the Fourth Amendment.”

That conclusion does not resolve this case, because the Fourth Amendment prohibits only searches that are “unreasonable.” When law enforcement officials undertake a search to discover evidence of a crime, the reasonableness standard generally requires that they seek a warrant from “a neutral and detached magistrate.” Johnson v. United States, 333 U. S. 10, 14 (1948); see Vernonia School Dist. 47J v. Acton, 515 U. S. 646, 653 (1995).11 That requirement subjects the officials’ assessment of a search’s propriety to the “deliberate, impartial judgment of a judicial officer.” United States v. Grubbs, 547 U. S. 90, 99 (2006). The magistrate, in turn, may issue a warrant only when “probable cause is properly established and the scope of the authorized search is set out with particularity.” Kentucky v. King, 563 U. S. 452, 459 (2011). 

“[P]robable cause is a fluid concept—turning on the assessment of probabilities in particular factual contexts—not readily, or even usefully, reduced to a neat set of legal rules.” Illinois v. Gates, 462 U. S. 213, 232 (1983). But a magistrate must always determine that there is a “fair probability that contraband or evidence of a crime will be found” in the place searched. Id., at 238. That means determining, to the requisite “fair probability,” both that the place searched will have the materials sought and that those materials will contain evidence “aid[ing]” in a criminal’s “apprehension or conviction.” Messerschmidt v. Millender, 565 U. S. 535, 551, 552, n. 7 (2012); see Zurcher v. Stanford Daily, 436 U. S. 547, 556 (1978) (“The critical element” is whether there is the requisite “cause to believe that the specific ‘things’ to be searched for and seized are located” in the targeted place). The particularity requirement, for its part, ensures that the search will be of an appropriate scope—that it is “carefully tailored to its justifications, and will not take on the character of the wide-ranging exploratory searches the Framers intended to prohibit.” Maryland v. Garrison, 480 U. S. 79, 84 (1987). That requirement typically looks to such matters as the geographic and durational expanse of the search. See id., at 84–85; Karo, 468 U. S., at 718. And it too must take account of “particular factual contexts,” including in surveillance cases the nature of the technology to be used. 

In his famed and vindicated dissent, Justice Brandeis explained why a wiretap was a search, subject to Fourth Amendment requirements. See Olmstead v. United States, 277 U. S. 438, 471 (1928). Those who drafted the Amendment could not have imagined such a technology. But they understood, Justice Brandeis wrote, a matter of more transcendent importance: that Americans had “as against the Government, the right to be let alone” and that the Fourth Amendment must protect against “every unjustifiable intrusion by the Government upon the privacy of the individual, whatever the means employed.” Id., at 478. 

Far more recently, this Court in Carpenter invoked Justice Brandeis’s opinion in explaining why law enforcement officials could not have “unrestricted access to a wireless carrier’s database of physical location information.” 585 U. S., at 320. Said Carpenter: “[T]he Court is obligated—as ‘[s]ubtler and more far-reaching means of invading privacy have become available to the Government’—to ensure that the ‘progress of science’ does not erode Fourth Amendment protections.” Ibid. (quoting 277 U. S., at 473–474 (dissenting opinion)). For new technological tools, the Court continued, may “risk[] Government encroachment of the sort the Framers, after consulting the lessons of history, drafted the Fourth Amendment to prevent.” 585 U. S., at 320. 

Today’s decision follows from the same judicial obligation, to guard against the same risk of undue encroachment. The Fourth Amendment applies, too, when officials tap into Google’s “database of physical location information.” Ibid. That database is new, but the principle covering it is not: That principle is instead the one our history has given. The Fourth Amendment must, as ever, protect against unjustified governmental intrusion on the privacy of the individual.

Next, in Cannon v. United States, --- F.4th ---, No. 24-1317 (9th Cir. 2026), the Court reversed the district court’s grant of summary judgment for the federal government in Lionel Cannon’s motion under Federal Rule of Criminal Procedure 41(g) seeking the return of his cash seized by the government.

The FBI was investigating Cannon on federal drug trafficking charges. During a lawful search, agents seized $585,000 in cash. FBI Special Agent Scott Bowmann pocketed $218,200. After pleading guilty to drug charges, Cannon moved under Rule 41(g) for the return of the $218,000 that Agent Bowman had stolen and had never been forfeited.

Federal Rule of Criminal Procedure 41(g) provides that a person who has been deprived of his property by the government may move for the property’s return. In Ordonez v. United States, 680 F.3d 1135 (9th Cir. 2012), we held that when property seized by the government has been lost or destroyed, “an award of money damages against the government under Rule 41(g) is barred by sovereign immunity.” Id. at 1140. The issue in this case is whether the same rule applies to cash that the government seized, lost, but then recovered in restitution proceedings. We hold that when the government has recovered money traceable to the funds it lost, the person from whom it was seized may seek its return under Rule 41(g). When its return is sought, the government bears the burden of demonstrating that it has a legitimate reason to retain the money. The government did not meet its burden here. We thus reverse the district court’s grant of summary judgment for the government.

Cannon seeks the return of the very thing to which he is entitled, namely “the property” under Rule 41(g). In this case, that is the cash the government seized but did not pursue in forfeiture proceedings. As in Bowen, Cannon’s claim is not for money damages; rather, it is “a suit seeking to enforce the statutory mandate itself, which happens to be one for the payment of money.” 487 U.S. at 900. The fact that Cannon seeks the return of cash does not make his claim one for money damages. We have long treated Rule 41(g) motions—even those for return of cash seizures—as motions in equity, not law, and equity is directed to ownership of the property itself, not to compensation, which is a legal remedy. 

But that the money the United States is recouping from Agent Bowman is not the same “physical currency”—that is, the exact same bills that were taken from Cannon’s safe—does not alter the result. Such a hyperformalistic approach misconstrues the nature of money. Money differs from other property in that its principal value lies in the unit of account; its exchange value, not its intrinsic value. 

The relevant question then is not whether the bills Agent Bowman is remitting to the government have the same serial numbers as the ones from Cannon’s safe, but whether he is remitting the value or amount traceable to the money taken from Cannon’s safe. We think it clear that he is. 

[W]e must begin with a presumption that Cannon is in lawful possession of the property taken from him; it is the government’s burden to show that he did not lawfully possess it. The government has not satisfied its burden.

Nowhere in the interview memorandum does Cannon admit that the money was drug proceeds or that he was otherwise not entitled to the money. The government’s claim to the contrary is simply an inference from silence. The bare fact that Cannon had money in a safe—admittedly, a lot of money—is not proof that the money was obtained from entirely illegitimate and unlawful sources, and Cannon’s admission in his plea deal that some of the money was drug proceeds is not an admission that all of it was.

The district court stated that Cannon’s plea deal to forfeit $366,800.00 from the safe “support[s] an inference that he agreed to forfeit all property seized from the safe in his mother’s house.” But this inference impermissibly shifts the burden of proof and misstates the parties’ bargaining position. During the plea negotiations, both Cannon and the United States understood that the government had seized far more than $366,800 from his safe that day. The $366,800 figure on the forfeiture order was no clerical error—it was the amount the parties had negotiated.

The government—not Cannon—bears the burden of demonstrating a legitimate basis for refusing to return the money; if it cannot, it must return Cannon’s property. Wright, 49 F.4th at 1225. Thus, the government bore the burden of showing that the entire amount seized was unlawful proceeds. Cannon provided evidence supporting his claim that lawful funds were intermingled with the drug proceeds subject to forfeiture. The government had the opportunity to dispute this. On this record, it has not done so, and summary judgment was in error. We return the case to the district court for additional proceedings.  

7/18/26: Important SCOTUS decisions

Two criminal decisions today from the Supremes. 

First, in Hunter v. United States, 608 U.S. ---, No. 24–1063 (2026), the Court considered whether plea agreement appellate waivers are subject to a general miscarriage of justice exception to enforceability.  Good news, they are. 

Plea agreements between a criminal defendant and the Government often include an appeal waiver—a promise by the defendant not to appeal his conviction or eventual sentence. In this case, we address a dispute about when such a promise is unenforceable in the sentencing context. We principally hold that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.

We thus approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can. So a high bar is not the same as an insurmountable one. The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake. 

The nature of the miscarriage-of-justice limit precludes any attempt to list all the situations in which it will overcome an appeal waiver. Extreme cases, after all, are hard to anticipate before they happen. But a few examples of the kinds of errors we mean—the kind that would bring the judiciary into disrepute—may provide guidance to lower courts. First, a defendant may appeal a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed. See, e.g., Kim, 988 F. 3d, at 810–811, and n. 1; supra, at 10. Second, a defendant may appeal a sentence that is infected with a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant). See, e.g., United States v. Elliott, 264 F. 3d 1171, 1173 (CA10 2001); supra, at 11. And third, a defendant may appeal if his sentence was imposed without “some minimum of civilized procedure” as in, yes, the “twelve orangutans” case—or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law. United States v. Adkins, 743 F. 3d 176, 192–193 (CA7 2014); see United States v. Behrens, 375 U. S. 162, 165–166 (1963). These examples are just examples, not intended to be exclusive, but they serve to illustrate the high bar a defendant must surmount to overcome an appeal waiver.

Justice Gorsuch has a strong concurrence that begins: 

In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course. It rules that prosecutors may not always leverage their plea-bargaining power to induce a defendant to forego the right to contest his sentence on appeal. I agree and write separately to outline how we got here and some of the work still ahead.  

Also of note, there is some helpful language on waiver in general: "Under ordinary litigation principles, a waiver of a right requires some affirmative signal of 'abandonment.' Staying silent—as here, not picking a fight—does not qualify. "

Next, in United States v. Hemani, 608 U.S. ---, No. 24–1234 (2026), the Court considered the constitutionality of 18 U.S.C. § 922(g)(3).  Under its terms, anyone who is an “unlawful user of ” or “addicted to” a “controlled substance” is automatically banned from possessing a gun.  "Ali Hemani uses marijuana a few times a week. That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life. This case poses the question whether the government’s prosecution of Mr. Hemani is consistent with the Second Amendment."  The Court held it was not. 

In many respects, this case is a narrow one. We do not address efforts to ban addicts, see n. 2, supra, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. See n. 6, supra. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Hemani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home for self-defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use. The only thing the government must show, it says, is that an individual like Mr. Hemani regularly uses any amount of any controlled substance. 

To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.  

6/11/26: SCOTUS reverses the Ninth on venue

In Abouammo v. United States, 608 U.S. ---, No. 25-5146 (2026), a unanimous Supreme Court reversed the Ninth Circuit's judgment and held, "a defendant charged with violating §1519 must be tried in the district where the falsification occurred; he cannot be tried in a different district where the investigation was located."  Here is some of the key language: 

Venue in criminal cases mattered more than might be supposed to the Nation’s Founders.

As a result, the Constitution not once but “twice safeguards the defendant’s venue right.” United States v. Cabrales, 524 U. S. 1, 6 (1998). Article III instructs that “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed.” §2, cl. 3. And the Sixth Amendment reinforces that command, entitling criminal defendants to a jury “of the State and district wherein the crime shall have been committed.” 

To implement that constitutional rule—meaning, to decide where the crime was committed—courts generally must determine the location of the offense’s “essential conduct elements.”  

Under that framework, the venue for trying a §1519 offense must be where a document’s falsification happened— which here was in Seattle.

The only prohibited act in that statute is the falsification of a document. Once a person has committed that act (with the requisite intent), he need do nothing more to violate the law.

Contrary to the Ninth Circuit’s view, §1519’s special intent provision does not lead to a different result. This Court has never looked to a statute’s mens rea elements in considering venue. Nor would it make much sense to do so. Take the first (and more typical) of §1519’s mens rea requirements: that the falsification be undertaken “knowingly.” A knowing falsification occurs at the same place as an unknowing falsification—which is to say, at the place of the falsification. The mens rea element thus adds nothing to the conduct-focused analysis. The same is true of §1519’s demand that the falsification be done with the intent to obstruct an investigation. 

Section 1519 prohibits only one act: that of falsifying a document. Because the Government need show nothing else, a §1519 offense is relatively easy to prove. But with that ease comes one cost: Because the Government need show nothing else, its venue options are confined. The trial for falsifying a document must take place where the defendant falsified the document. Here that was in Seattle—meaning in venue terms, the Western District of Washington. The trial should not have occurred in the Northern District of California because no “conduct constituting the offense” happened in that location.  

6/3/26: Second Amendment case

In United States v. DeBorba, --- F.4th ---, No. 23-3304 (9th Cir. 2026), the Court affirmed João Ricardo DeBorba’s convictions, following a bench trial on stipulated facts, for unlawful possession of firearms and ammunition by a noncitizen illegally or unlawfully in the United States, 18 U.S.C. § 922(g)(5)(A); unlawful possession of firearms and ammunition by a person under a domestic violence restraining order, 18 U.S.C. § 922(g)(8); making false statements during purchase of firearms, 18 U.S.C. § 922(a)(6); making a false claim to U.S. citizenship, 18 U.S.C. § 911; and unlawful possession of a firearm silencer under the National Firearms Act (NFA), 26 U.S.C. §§ 5861(d), 5845(a)(7).

In affirming, the Court rejected a host of Second Amendment challenges: 

DeBorba levies challenges to Section 922(g)(5)’s prohibition on firearm possession by noncitizens, the materiality of his false statements and U.S. citizenship claim, Section 922(g)(5)’s prohibition on firearm possession by those subject to a domestic violence restraining order, and the NFA’s regulation of silencers. None are availing. We address each in turn.

Our recent decision in United States v. Vazquez-Ramirez controls DeBorba’s challenges to 18 U.S.C. § 922(g)(5). 163 F.4th 706 (9th Cir. 2026). We held in Vazquez-Ramirez that Section 922’s prohibition on the possession of firearms and ammunition by noncitizens “illegally or unlawfully in the United States,” 18 U.S.C. § 922(g)(5)(A), is “consistent with the nation’s historical tradition of firearm regulation” as required by the Second Amendment.

DeBorba’s materiality challenges to his convictions for making false statements on ATF gun purchase forms and making a false claim to citizenship on his Washington concealed carry application fail because his challenges to Section 922(g)(5) fail. DeBorba concedes that those challenges depend on a holding that the Second Amendment does not allow his disarmament based on citizenship or immigration status. That proposition is foreclosed by Vazquez-Ramirez.

DeBorba presents as-applied challenges to both prongs of Section 922(g)(8)(C). He argues that the restraining orders in his case lack analogous historical traditions of firearm regulation. In United States v. VanDyke, 157 F.4th 1082 (9th Cir. 2025), we drew upon the Supreme Court’s rejection of a 922(g)(8)(C)(i) challenge in Rahimi and rejected a challenge to 922(g)(8)(C)(ii). Together, Rahimi and VanDyke foreclose DeBorba’s arguments regarding Section 922(g)(8)(C)’s unconstitutionality, and he does not demonstrate that his circumstances are meaningfully different from those cases.

DeBorba argues the NFA’s regulation of silencers violates both the Second Amendment’s right to bear arms and the Fifth Amendment’s prohibition on vague criminal laws. Both challenges lack merit.

As we have previously explained, “optional accessories” to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment’s plain text because they are “accoutrements” and not arms. Id. DeBorba’s challenge thus fails at step one of the Bruen analysis.

DeBorba’s challenge also cannot overcome the presumptive constitutionality of the NFA’s shall-issue licensing regime.

As the Fifth Circuit explained, there is “no reason to doubt” that the NFA’s licensing requirements serve to “ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” We agree and so hold. 

DeBorba also argues that the NFA’s regulation of “any silencer,” 26 U.S.C. § 5845(a)(7)—defined as “any device for silencing, muffling, or diminishing the report of a portable firearm,” 18 U.S.C. § 921(a)(25)—is unconstitutionally vague. He invokes the Fifth Amendment’s protection against any “criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

As applied, DeBorba’s vagueness challenge to the NFA plainly fails for two reasons. First, the stipulated facts, taken together, render DeBorba guilty of the charge under Section 5861(d) and foreclose his challenge. 

Second, DeBorba’s as-applied challenge falls short when one considers the device’s design. As the district court explained, the item was “a cylindrical device with no manufacturer marking and no serial number” in which “the front endcap of the device contained a hole to allow passage of a bullet, and the rear endcap also had a hole in its center that was internally threaded to facilitate attachment to a firearm barrel.” When the ATF attached DeBorba’s device to a portable firearm and fired the gun, the device “reduced sound reporting by at least twelve decibels.” Id. The NFA’s inclusion of any device “for silencing, muffling, or diminishing the report of a portable firearm,” 18 U.S.C. § 921(a)(25), provided “fair notice” to DeBorba that his device falls within the Act’s ambit. 

6/2/26: En banc civil forfeiture decision

In United States v. $1,106,775 in U.S. Currency, --- F.4th ---, No. 22-16499 (9th Cir. 2026) (en banc), the Court reversed the district court’s order striking Oak Porcelli’s claim for currency that was the subject of the government’s civil forfeiture action, and remanded for further proceedings.

When someone files a claim for property that is the subject of a civil forfeiture action, the government “may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed.” Fed. R. Civ. P. Supp. R. G(6). The district court in this case struck a claimant’s claim for money seized from a vehicle he was driving, reasoning that he had failed to provide sufficient interrogatory responses concerning his standing to seek the funds. We hold that the district court abused its discretion in issuing this case-ending sanction at the inception of the civil forfeiture action. We reverse and remand for further proceedings.

That Porcelli was required to respond to the Rule G(6) interrogatories does not mean that civil forfeiture claims like his—where the property was indisputably taken from him—should always be litigated through the vehicle of case-opening Rule G(6) discovery disputes. The Rules do not anticipate that all civil forfeiture litigation will be resolved through Rule G(6).

Yet, in this case, the civil forfeiture proceeding was over before it began, even though Porcelli’s interrogatory responses—which the government never rebutted—established his standing at this stage of the proceedings.

For this stage of the proceedings, some of the government’s Rule G(6) requests were also excessive. For example, Interrogatory 6 required “[a] detailed description of the circumstances of every transaction by which you acquired or obtained each interest in the property, including every name, address (residential and business), and telephone number (residential, cellular, and business) of each witness to such transaction.” And Interrogatory 7 called for Porcelli to “[d]escribe in detail every document evidencing, recording, facilitating, or otherwise relating to each transaction identified in response to Interrogatory 6.

Porcelli surely could be required to respond to these two interrogatories to some extent at an early stage in the case, and he eventually did so. But at least when sought at the outset of the civil forfeiture proceeding, the level of detail the government insisted on here in its motion for terminating sanctions went beyond what Rule G(6) envisions.

In this case, Porcelli came forward with a legally sufficient claim of standing and interrogatory responses that provided the government with a sufficient basis for conducting further investigation into his claimed ownership of the money. In these circumstances, and when Porcelli was claiming money that was indisputably seized from his possession, it was error for the district court to strike his claim when it did based on the alleged insufficiency of his Rule G(6) responses.