3/5/25: Major Fourth Amendment decision in the traffic stop context

In United States v. Steinman, --- F.4th ---, No. 23-1703 (9th Cir. 2025), on a government appeal, the Court reversed the district court’s order suppressing evidence seized from Steinman’s car following a traffic stop in a case in which Steinman was charged with being a felon in possession of ammunition and possession of unregistered firearms. 

Below are some of the key points: 

The Government challenges the district court’s order granting Steinman’s motion to suppress on multiple bases. First, the Government argues that the district court erred in its conclusion that Trooper Boyer unconstitutionally prolonged the traffic stop without the requisite reasonable suspicion, in part because it improperly considered Trooper Boyer’s subjective motivation. Second, the Government contends that the district court erred in concluding that Trooper Boyer lacked probable cause to seize Steinman’s BMW.

Steinman disagrees with the Government on those two points and further insists that because the Government failed to challenge the district court’s ruling that the search warrant was overbroad—an “independent basis for suppression”— we must uphold the suppression order. In response to this additional argument, the Government insists that the overbreadth of the warrant is immaterial because Trooper Boyer had probable cause to believe that the BMW contained evidence of a crime, so it could be searched without a warrant pursuant to the automobile exception to the Fourth Amendment’s warrant requirement. 

We agree with the Government on all three points, and we reverse the suppression order.

The district court concluded that the fruits of the traffic stop could be suppressed because Trooper Boyer unconstitutionally extended the traffic stop without the requisite reasonable suspicion. This was error.

In short, if a traffic stop is constitutionally justified at its inception—which is not seriously disputed in this appeal— our analysis is twofold. Was the stop prolonged, and, if so, was the prolongation justified by reasonable suspicion based on the information available at that juncture?

Applying these rules here, we conclude that Steinman’s Fourth Amendment rights were not violated by an unconstitutional prolongation of the traffic stop. Our conclusion flows from two key premises. First, nothing up until the point when Trooper Boyer finished reviewing Steinman’s criminal history and learned that he had a felony conviction (approximately 4:08pm according to the body-camera footage) constituted an unconstitutional prolongation of the traffic stop. All of the actions taken by Trooper Boyer up until that point either (1) were within the legitimate mission of the traffic stop, including protecting officer safety or (2) did not prolong the traffic stop. Second, after Trooper Boyer reviewed the criminal history and learned that Steinman had a felony conviction, he had reasonable suspicion to believe that Steinman was engaged in criminal activity—namely, that Steinman possessed firearms in violation of Nevada law. Thus, even if we assume that Trooper Boyer did prolong the stop at some point after he learned that Steinman had a felony conviction, it is of no moment because he was entitled to do so based on his reasonable suspicion of an independent offense.  

First, it did not prolong the stop for Trooper Boyer to ask Steinman to exit the BMW and come with him to the patrol car. It is black-letter law that a trooper may do so in the interest of officer safety.

[E]ven assuming that Steinman is correct that some of Trooper Boyer’s questioning during the relevant period fell outside the purview of the traffic-stop mission, Trooper Boyer did not violate Steinman’s Fourth Amendment rights. Again, “the Fourth Amendment tolerate[s] certain unrelated investigations that [do] not lengthen the roadside detention.” 

To the extent that Steinman argues that simultaneous questioning or discussion inherently slows down the citation-writing process—and thus extends traffic stops— because it is distracting and reduces the capacity of officers to work diligently, we are unpersuaded. Police officers are not automatons required to work with the maximum possible efficiency at all costs. Nor are they required to sit in stony silence like school children taking an exam during the process of filling out a traffic citation.

In sum, because Trooper Boyer’s arguably investigatory questioning occurred simultaneously with tasks that fell within the mission of the traffic stop—viz., filling out the citation form and requesting and reviewing a criminal history records check—we cannot say that the questioning measurably prolonged the stop. Thus, it does not implicate Steinman’s Fourth Amendment rights.

Even assuming arguendo that Trooper Boyer deviated from the traffic-stop mission to conduct an independent investigation after he finished reviewing the criminal history check, an independent investigation was justified because Trooper Boyer had reasonable suspicion that Steinman was engaged in criminal activity. Put otherwise, “even if,” after the initial criminal history-check, Trooper Boyer “prolonged the encounter beyond the original mission of the traffic stop, [he] had a sufficient basis to do so”—namely, reasonable suspicion of an independent offense.

After Trooper Boyer had viewed Steinman’s criminal history report, he had (1) observed an ammunition box in Steinman’s vehicle; (2) observed a blanket covering a number of items in the back seat; (3) heard Steinman’s arguably evasive answer about what was under the blanket; (4) observed furtive movements by Steinman in the BMW; (5) heard Steinman’s admission that there was ammunition (though not guns) in the vehicle; and (6) learned that Steinman had felony convictions. Considering the totality of the circumstances, this was sufficient to give Trooper Boyer reasonable suspicion to extend the traffic stop to investigate whether Steinman had firearms in the vehicle in violation of Nevada law.

In sum, the district court’s decision that there was an unconstitutional prolongation of the traffic stop was erroneous. Trooper Boyer did not prolong the traffic stop in violation of the Fourth Amendment by any of the actions that he took up through the point where he reviewed the criminal history check, at around 4:08 p.m. And even if there was prolongation after that point, Trooper Boyer had reasonable suspicion that Steinman had committed an independent criminal offense in violation of Nevada law, so he could deviate from the traffic stop to investigate that offense.  

The district court also suppressed the fruits of the search on the ground that there was no probable cause for Trooper Boyer to seize Steinman’s BMW. Reviewing the probable cause determination de novo, see Guerrero, 47 F.4th at 984, we disagree. The information available to Trooper Boyer would have given him probable cause to believe that the BMW contained (1) evidence that Steinman possessed ammunition in violation of federal law and (2) evidence that Steinman possessed firearms in violation of state law. Accordingly, Trooper Boyer could seize the BMW, and suppression was not warranted on this basis.

The warrantless towing of Steinman’s car qualifies as a seizure within the meaning of the Fourth Amendment. See Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). “Because warrantless searches and seizures are per se unreasonable, the government bears the burden of showing that a warrantless search or seizure falls within an exception to the Fourth Amendment’s warrant requirement.” United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012). 

Here, all parties agree that, in order to seize the BMW, Trooper Boyer must have had probable cause that the BMW contained evidence of a crime. This is derived from the “‘automobile exception’” to the Fourth Amendment’s warrant requirement, “under which a warrantless search of a vehicle is permitted ‘if there is probable cause to believe that the vehicle contains evidence of a crime.’”

We first address whether Trooper Boyer could seize the BMW because he had probable cause to believe that it contained evidence of a federal crime—namely, that Steinman possessed ammunition as a felon in violation of 18 U.S.C. § 922(g)(1).

Steinman contends that Trooper Boyer, a state law enforcement officer, “had no basis to seize the car for a potential federal law violation.” The parties agree that possession of ammunition is only prohibited by federal law and is not a crime under Nevada law.

Steinman says that the seizure of the BMW cannot be retroactively justified on the grounds that a state law enforcement officer suspected that there was evidence of a federal crime when that same conduct was not unlawful under state law.

Whether state officers can rely on suspected violations of federal law in justifying a search or seizure is an issue that our court has never squarely addressed. And it is a question that has divided the few courts that have addressed it. 

In simple terms, the question at issue is “whether an officer employed by one government can justify a search or seizure based on a violation of a different government’s law.” Id. at 474. This has been called the issue of “cross-enforcement” of the Fourth Amendment.  

After considering the arguments raised by both parties, we agree with the Government that the fact that possession of ammunition by a felon is illegal only under federal law poses no barrier to Trooper Boyer’s seizure of the BMW.

[W]e conclude that, under the circumstances of this case, Trooper Boyer could seize Steinman’s BMW because he had probable cause to believe that it contained evidence of a federal crime (namely, possession of ammunition by a felon), even though that same conduct was not criminalized under Nevada law. 

[E]ven if we were to agree with Steinman on this point (which we do not), the seizure of the BMW was nevertheless constitutional because there was probable cause to believe that Steinman had violated Nevada law by possessing firearms as a felon. 

We find it particularly salient that the BMW contained an ammunition box in plain view. Indeed, we have found the presence of ammunition (or other indicia of firearm ownership) on a defendant’s person to be highly important in the probable-cause analysis. 

As a panel of our court cogently articulated, “[b]ullets strongly suggest the presence of a gun.”  Although that statement was made in an unpublished—and thus nonprecedential—case, we firmly agree with that common-sense sentiment.

In sum, the district court erred in concluding that there was not probable cause to seize (and search) the BMW on the ground that it contained evidence that (1) Steinman was violating federal law by possessing ammunition and (2) Steinman was violating Nevada law by possessing firearms. Thus, Trooper Boyer did not violate Steinman’s Fourth Amendment rights in seizing his BMW. 

Finally, Steinman also argues that even if the district court did err in concluding that the stop was unconstitutionally prolonged and the seizure was not justified by probable cause, we should still affirm the district court’s suppression order because of warrant overbreadth. According to Steinman, the district court reasoned that warrant overbreadth was an independent ground for suppression, and the Government has failed to challenge this ruling on appeal.

We agree with Steinman that the Government has waived any challenge to overbreadth and that the district court saw warrant overbreadth as an independent basis for exclusion. 12 Thus, for purposes of this appeal, we accept the proposition that the search warrant was overbroad and thus could not justify a search of Steinman’s automobile. But we disagree with Steinman that this overbreadth requires suppression of the evidence found in the automobile.

Instead, we agree with the Government that the overbreadth of the warrant is ultimately immaterial because a warrantless search of the BMW was permissible under the automobile exception to the Fourth Amendment’s warrant requirement.

Thus, notwithstanding the overbreadth of the warrant, the fruits of the search of Steinman’s BMW—namely, the guns and ammunition—need not be suppressed if the search could have been justified pursuant to one of the exceptions to the warrant requirement. Such a justification is present in this case. As indicated above, Trooper Boyer had probable cause to search and seize the BMW without a warrant pursuant to the automobile exception to the Fourth Amendment’s warrant requirement because he had probable cause to believe that it contained evidence of violations of both federal and state law. See Acevedo, 500 U.S. at 569– 70; Faagai, 869 F.3d at 1150. And the automobile exception may apply even if the automobile has been towed back to the police station or elsewhere. See Acevedo, 500 U.S. at 570; Chambers v. Maroney, 399 U.S. 42, 51–52 (1970); Scott, 705 F.3d at 417. Thus, the fruits of the search need not be suppressed.  

3/4/25: Article III does not guarantee the right to a jury trial in supervised release revocation proceedings.

In United States v. Bowers, --- F.4th ---, No. 23-902 (9th Cir. 2025), the Court affirmed the district court’s revocation of Jackson Daniel Bowers’ supervised release in a case in which Bowers argued that Article III, section 2 of the Constitution affords supervisees the right to a jury trial in revocation proceedings held under 18 U.S.C. § 3583(e).

Jackson Daniel Bowers challenges his revocation of supervised release by presenting a novel constitutional argument: that Article III, section 2 of the Constitution affords supervisees the right to a jury trial in revocation proceedings held under 18 U.S.C. § 3583(e). We disagree and find that Article III’s jury trial guarantee is equivalent in scope to the Sixth Amendment’s. As such, Bowers’ Article III claim is foreclosed by circuit precedent, and we affirm the revocation of his supervised release.

Current circuit precedent holds that supervisees do not have a right to a jury trial on supervised release proceedings under the Sixth Amendment and we are bound by this precedent. Since Article III’s jury provision and the Sixth Amendment’s are equivalent in scope, it follows that a right not triggered by the Sixth Amendment cannot be independently triggered by Article III. Accordingly, Bowers revocation of supervised release is AFFIRMED. 

2/25/25: Helpful SCOTUS Napue decision

In Glossip v. Oklahoma, 604 U.S. ___, No. 227466 (2025), the Supreme Court reversed the judgment below and remanded for a new trial because the prosecution violated its obligations under Napue. Here are some highlights. 

An Oklahoma jury convicted petitioner Richard Glossip of paying Justin Sneed to murder Barry Van Treese and sentenced him to death. At trial, Sneed admitted he beat Van Treese to death, but testified that Glossip had offered him thousands of dollars to do so. Glossip confessed he helped Sneed conceal his crime after the fact, but he denied any involvement in the murder. 

Nearly two decades later, the State disclosed eight boxes of previously withheld documents from Glossip’s trial. These documents show that Sneed suffered from bipolar disorder, which, combined with his known drug use, could have caused impulsive outbursts of violence. They also established, the State agrees, that a jail psychiatrist prescribed Sneed lithium to treat that condition, and that the prosecution allowed Sneed falsely to testify at trial that he had never seen a psychiatrist. Faced with that evidence, Oklahoma’s attorney general confessed error. Before the Oklahoma Court of Criminal Appeals (OCCA), the State conceded that the prosecution’s failure to correct Sneed’s testimony violated Napue v. Illinois, 360 U. S. 264 (1959), which held that prosecutors have a constitutional obligation to correct false testimony. The attorney general accordingly asked the court to grant Glossip a new trial. The OCCA declined to grant relief because, it held, the State’s concession was not “based in law or fact.” 2023 OK CR 5, ¶25, 529 P. 3d 218, 226. Because the prosecution violated its obligations under Napue, we reverse the judgment below and remand the case for a new trial.

To establish a Napue violation, a defendant must show that the prosecution knowingly solicited false testimony or knowingly allowed it “to go uncorrected when it appear[ed].” Ibid. If the defendant makes that showing, a new trial is warranted so long as the false testimony “may have had an effect on the outcome of the trial,” id., at 272— that is, if it “‘in any reasonable likelihood [could] have affected the judgment of the jury,’” Giglio v. United States, 405 U. S. 150, 154 (1972) (quoting Napue, 360 U. S., at 271). In effect, this materiality standard requires “‘“the beneficiary of [the] constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained.”’”

Here, Oklahoma’s attorney general joins Glossip in asserting a Napue error, conceding both that Sneed’s testimony was false and that the prosecution knowingly failed to correct it. The record supports that confession of error.

Evidence can be material even if it “goes only to the credibility of the witness,” Napue, 360 U. S., at 269; indeed, “[t]he jury’s estimate of the truthfulness and reliability of a given witness may well be determinative of guilt or innocence,” ibid. Because Sneed’s testimony was the only direct evidence of Glossip’s guilt of capital murder, the jury’s assessment of Sneed’s credibility was necessarily determinative here. Besides Sneed, no other witness and no physical evidence established that Glossip orchestrated Van Treese’s murder. Thus, the jury could convict Glossip only if it believed Sneed.

Had the prosecution corrected Sneed on the stand, his credibility plainly would have suffered. That correction would have revealed to the jury not just that Sneed was untrustworthy (as amicus points out, the jury already knew he repeatedly lied to the police), but also that Sneed was willing to lie to them under oath. Such a revelation would be significant in any case, and was especially so here where Sneed was already “nobody’s idea of a strong witness.” Brief for Court-Appointed Amicus Curiae 37. Even if Sneed’s bipolar disorder were wholly irrelevant, as amicus argues, his willingness to lie about it to the jury was not. “‘A lie is a lie, no matter what its subject.’” Napue, 360 U. S., at 269 (quoting People v. Savvides, 1 N. Y. 2d 554, 557, 136 N. E. 2d 853, 854–855 (1956)).

In any event, amicus’s position is self-defeating. If the evidence impeaching Sneed’s credibility was already overwhelming, then no reasonable jury could have convicted Glossip in the first place, given that the prosecution’s case rested centrally on Sneed’s credibility. Amicus appears to assume the jury would have believed Sneed no matter what. Such an assumption has no place in a materiality analysis, which asks what a reasonable decision maker would have done with the new evidence. 

2/24/25: Theranos and the Sycamore Fire

First, in United States v. Holmes, --- F.4th ---. No. 22-10312 (9th Cir. 2025), the Court affirmed Elizabeth Holmes’s and Ranesh “Sunny” Balwani’s convictions on numerous fraud charges, their sentences, and the district court’s $452 million restitution order.

This case arises from the Theranos scandal.  

“[O]ne tiny drop changes everything.” That was the vision shared by Elizabeth Holmes and Ramesh “Sunny” Balwani, who set out in the mid-2000s to revolutionize medical laboratory testing through a biotechnology company called Theranos. In the early 2010s, Theranos claimed that it could run fast, accurate, and affordable tests with just a drop of blood drawn from the prick of a finger, in contrast to traditional testing methods that require large needles to draw blood from a vein. 

Investors, health care professionals and companies, and Silicon Valley spectators were captivated by the potential of Theranos’s revolutionary technology. As a result, Holmes and Balwani were able to establish relationships with major companies, investors, and prominent figures, including high-ranking members of the United States military. 

But the vision sold by Holmes and Balwani was nothing more than a mirage. In late 2015, news reporting revealed internal struggles within the Theranos laboratory and the limitations of its technology. The grandiose achievements touted by Holmes and Balwani were half-truths and outright lies. Theranos’s blood-testing device failed to deliver faster and more accurate testing results than conventional technology. Pharmaceutical companies never validated the technology, as Holmes and Balwani had told investors. Contrary to the rosy revenue projections shared with investors and business partners, Theranos was running out of money. 

After a two-and-a-half-year investigation, a grand jury returned an indictment against Holmes and Balwani. They were tried separately in lengthy jury trials, and each was convicted on numerous fraud charges. Holmes and Balwani now bring several challenges to the district court’s decisions at trial and sentencing. We affirm.

The defendants argued that the district court erred by allowing former Theranos employees, who testified as lay witnesses, to offer improper expert testimony. The Court explained that if a witness offers an opinion that is based on specialized knowledge, experience, training, or education contemplated by Fed. Rule of Evidence 702, a party cannot evade the Rule by labeling a witness “percipient.” And there is no “on-the-job” exception to Rule 702. Considering each of the challenged witnesses with these principles in mind, the Court held that some aspects of the testimonies veered into expert territory, but any error was harmless.

The Court also rejected Holmes' challenge to the introduction of a report prepared by the Center for Medicare and Medicaid Services, which revealed significant flaws with Theranos' testing.  The Court held that the district court did not abuse its discretion in finding that the report was relevant to Holmes’s knowledge, intent, or state of mind, and in finding that the probative value of the report was not substantially outweighed by its potential for unfair prejudice.

Additionally, the Court rejected a host of other evidentiary challenges.  

As to restitution, the Court held that the district court erred by failing to consider possible credits against Defendants’ restitution obligation by accounting for the residual value of their shares after the fraud came to light. But this error too was harmless because the evidence showed the victims’ actual losses were equal to the total amount of their investments.

Next in United States v. Powers, --- F.4th ---, No. 23-2218 (9th Cir. 2025), the Court affirmed Philip A. Powers III’s convictions, following a bench trial before a magistrate judge, on seven misdemeanor counts arising from his setting three fires in national forests (the “Taylor Fire,” the “Sycamore Fire,” and the “Sycamore 2 Fire”). 

This case is all about the necessity defense. Powers set the fires after becoming lost and running out of water. 

After losing the trail while hiking in northern Arizona, Defendant-Appellant Philip A. Powers III deliberately set three fires in the Prescott and Coconino National Forests. The United States Forest Service (USFS) later named these fires the “Taylor Fire,” the “Sycamore Fire,” and the “Sycamore 2 Fire.” The Sycamore Fire spread uncontrolled over 230 acres of forest, burning timber, shrubs, and grasses, and threatening Flagstaff, Arizona and the nearby watershed. Firefighters contained the fire after approximately nine days, and the USFS incurred $293,413.71 in recoverable fire suppression costs.

The government charged Powers with seven misdemeanor counts arising from these fires: one count of leaving a fire unattended in violation of 18 U.S.C. § 1856 (Count 1) and six counts of violating USFS regulations (Counts 2 through 7). At a bench trial before a magistrate judge, Powers admitted setting the fires but asserted that he had done so out of necessity. Powers acknowledged that he was aware of the dry conditions and fire restrictions in the forests when he set the fires, but argued that he should nonetheless be acquitted because he was out of food and water, he did not have cell phone service, his physical condition was deteriorating, and his death was imminent. Therefore, he had no choice but to set the fires to “signal” for help. The magistrate judge rejected Powers’s necessity defense and found him guilty on all counts, sentenced him to supervised probation, and ordered him to pay restitution to the USFS.

In this appeal, Powers challenges his convictions and the order of restitution. He argues that the magistrate judge erred in refusing to apply the necessity defense to acquit him of the charges. . . . Because Powers’s actions in setting the fires were objectively unreasonable, and because he was not facing imminent harm when he set the Taylor Fire, he failed to meet the requirements of the necessity defense. Accordingly, we affirm.

Of note is the Court's lengthy discussion of the necessity defense: 

“The necessity defense is an affirmative defense that removes criminal liability for violation of a criminal statute.” Raich v. Gonzales, 500 F.3d 850, 861 (9th Cir. 2007) (citation omitted). It “traditionally covered the situation where physical forces beyond the actor’s control rendered illegal conduct the lesser of two evils.” United States v. Bailey, 444 U.S. 394, 410 (1980). For example, “[a]n escapee who flees from a jail that is in the process of burning to the ground” may be entitled to the defense, id. at 415, “for he is not to be hanged because he would not stay to be burnt,” United States v. Kirby, 74 U.S. (7 Wall.) 482, 487 (1868); see also United States v. Schoon, 971 F.2d 193, 196 (9th Cir. 1991) (citing United States v. Dorrell, 758 F.2d 427, 432 (9th Cir. 1985)) (explaining that the necessity defense “justifies criminal acts taken to avert a greater harm, maximizing social welfare by allowing a crime to be committed where the social benefits of the crime outweigh the social costs of failing to commit the crime”), as amended (Aug. 4, 1992).

“Because the necessity doctrine is utilitarian, however, strict requirements contain its exercise so as to prevent non-beneficial criminal conduct.” Schoon, 971 F.2d at 197. To prove necessity, a defendant must show “(1) that he was faced with a choice of evils and chose the lesser evil; (2) that he acted to prevent imminent harm; (3) that he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and (4) that there were no other legal alternatives to violating the law.” United States v. PerdomoEspana, 522 F.3d 983, 987 (9th Cir. 2008) (quoting United States v. Arellano-Rivera, 244 F.3d 1119, 1125–26 (9th Cir. 2001)). All four elements must be proven by a preponderance of the evidence, and each is viewed through an objective framework. Id. at 987–88; see United States v. Cruz, 554 F.3d 840, 850 (9th Cir. 2009) (noting that a “‘defendant must prove the elements of [an] affirmative defense by a preponderance of the evidence,’ unless some other standard is set by statute” (quoting United States v. Beasley, 346 F.3d 930, 935 (9th Cir. 2003))).

Moreover, to benefit from the necessity defense, a person “must act reasonably.”6 Perdomo-Espana, 522 F.3d at 987– 88 (applying the necessity defense and explaining that “[e]mbedded in our recognition that a person who seeks to benefit from a justification defense must act reasonably is the principle that justification defenses necessarily must be analyzed objectively”); see also Bailey, 444 U.S. at 410–11 (noting that “in the context of prison escape, the escapee is not entitled to claim a defense of . . . necessity unless and until he demonstrates that, given the imminence of the threat, violation of [the law] was his only reasonable alternative”); United States v. Simpson, 460 F.2d 515, 518 (9th Cir. 1972) (explaining that the societal benefit underlying justification defenses “is lost . . . when the person seeking to avert the anticipated harm does not act reasonably”).

Applying this reasonableness requirement to the third and fourth elements of the necessity defense, we have stated that “the law implies a reasonableness requirement in judging whether legal alternatives exist,” Perdomo-Espana, 522 F.3d at 987 (quoting Schoon, 971 F.2d at 198), and “the defendant must ‘reasonably anticipate a causal relation between his conduct and the harm to be avoided,’” id. (alteration omitted) (quoting Arellano-Rivera, 244 F.3d at 1126). We now clarify that the reasonableness requirement also applies to the second element: The action a defendant takes to prevent imminent harm must be reasonable. See Perdomo-Espana, 522 F.3d at 987–88; Schoon, 971 F.2d at 197–98. 

2/20/25: case on sentencing findings and the privilege against self-incrimination

In United States v. Kurns, --- F.4th ---, No. 23-3779 (9th Cir. 2025), the Court  affirmed the district court’s sentence in a case in which Brandon Wade Kurns pleaded guilty to being a felon in possession of a firearm. 

Kurns appeals his sentence, arguing that the district court improperly applied two guideline enhancements: U.S.S.G. § 2K2.1(a)(4)(B)(i)(I) for possession of a semiautomatic firearm with an extended magazine and § 2K2.1(b)(1)(B) for possessing eight or more firearms. Next, he claims that the district court violated the Fifth Amendment by drawing an adverse inference from his silence during sentencing. Finally, Kurns argues for the first time that we should reconsider his sentence in light of the Supreme Court’s decision in New York State Rifle & Pistol Ass’n v. Bruen, 597 U.S. 1 (2022). We affirm the district court’s sentence. A preponderance of the evidence proved the underlying facts required for each guideline enhancement, no Fifth Amendment violation occurred, and Kurns’ argument under Bruen is untimely at this late stage.

The district court did not err by starting with a base offense level of 20. Video, documentary, and testimonial evidence proved Kurns’ possession of a semiautomatic firearm with a 30-round magazine by a preponderance of the evidence sufficient to satisfy Lucas II. As a result, “the district court’s findings of fact, and its application of those findings of fact to the correct legal standard” were not “illogical, implausible, or without support in inferences that may be drawn from facts in the record.”

Given Kurns’ signatures on the transfer forms and Agent Enk’s testimony about Modern Pawn’s standard business practices, the district court did not clearly err by finding that Kurns more likely than not possessed the firearms he transferred.

The district court did not clearly err in its determination that a preponderance of the evidence supported the finding that Kurns exercised the requisite control over the firearms to establish, at a minimum, constructive possession.

Kurns’ second objection to the guideline enhancement for possessing eight or more firearms was that the district court violated his Fifth Amendment rights by drawing an adverse inference from his silence at sentencing.

Kurns argues that the district court violated his Fifth Amendment privilege against self-incrimination and impermissibly relieved the government of its burden of proof by suggesting that Kurns could testify that he did not physically possess the firearms covered by the transfer forms for sales without accompanying video evidence.

Unlike in Mezas de Jesus, the district court never implied that Kurns’ testimony was necessary to rebut arguments advanced by the government. Here the district court suggested that Kurns could “add to [his] evidence” by “deny[ing] that he touched those weapons under oath.” But contrary to Kurns’ argument that the district court viewed Kurns’ decision not to testify as an “absence of evidence,” this exchange showed only that Kurns could add to his already existing evidence if he elected to testify. Thus the district court was not viewing this exchange as a situation where the government had made a prima facie case and would require Kurns to take the stand to prevent the government from meeting the preponderance standard. 

We recognize, though, that even in a criminal sentencing there is good reason to be cautious about judicial comments on a refusal to testify. The Supreme Court has noted that “comment on the refusal to testify is a remnant of the ‘inquisitorial system of criminal justice,’ … which the Fifth Amendment outlaws.” Yet, there is no evidence that the district court weighed Kurns’ silence in determining his sentence. Accordingly, no Fifth Amendment violation occurred. 

2/19/25: Case on nondelegation doctrine

In United States v. Pheasant, --- F.4th ---, No. 23-911 (9th Cir. 2025), on the government's appeal, the Court reversed the district court’s dismissal of a count charging Gregory W. Pheasant with driving an offroad vehicle on public lands at night without a tail light, in violation of 43 C.F.R. § 8341.1(f)(5), and remanded.

The Secretary of the Interior adopted section 8341.1(f)(5) under the authority vested in him by section 303(a) of the Federal Land Policy and Management Act of 1976 (FLPMA), which directs the Secretary to “issue regulations necessary to implement the provisions of [the FLPMA] with respect to the management, use, and protection of the public lands, including the property located thereon.” The statute provides that “[a]ny person who knowingly and willfully violates any such regulation which is lawfully issued pursuant to this Act shall be fined no more than $1,000 or imprisoned no more than twelve months, or both.” 

The district court held that section 303(a) is an unconstitutional delegation of legislative power because it gives the Secretary “unfettered legislative authority” to make rules that “cover almost all conduct on public lands” without “any guidance or restraint as to when the Secretary . . . shall promulgate rules.”

The Ninth Circuit disagreed.  It explained that under the Supreme Court’s “intelligible principle” test, a statutory delegation is constitutional as long as Congress lays down by legislative act an intelligible principle to which the person or body authorized to exercise the delegated authority is directed to conform.  The Court held that section 303(a) easily satisfies the “intelligible principle” test because, taken together, the FLPMA’s provisions set out a clear principle: The Secretary must develop a long-term management strategy to realize the land’s value in a sustainable way. Such constraints are enough to satisfy Article I.

2/10/25: Categorical approach and concurrent recommendations

In United States v. Thompson, --- F.4th ---, No. 23-2288 (9th Cir. 2025), the Court affirmed a sentence imposed for Lamar Allen Thompson’s convictions for production and possession of child pornography.

The first issue was whether Thompson's prior 2016 Washington state conviction for first-degree child molestation under Washington Revised Code § 9A.44.083 triggered a 10-year increase under § 2251(e). 

An individual convicted under 18 U.S.C. § 2251(a) for production of child pornography is subject to a mandatory term of imprisonment of at least 15 years. However, under 18 U.S.C. § 2251(e), that mandatory term is increased to at least 25 years if that individual “has one prior conviction ... under the laws of any State relating to aggravated sexual abuse, sexual abuse, [or] abusive sexual contact involving a minor or ward.”

The Court held that a Washington conviction under § 9A.44.083 categorically matches or relates to the predicate generic offenses in § 2251(e), thus triggering the increase.

The Court further held that the district court did not plainly err in declining to recommend whether Thompson’s federal sentence should run concurrently with the anticipated state sentences.  "Given the Supreme Court’s statements regarding district courts’ discretion not to make concurrency recommendations and our sister circuits’ similar conclusions, Thompson fails to show any error, let alone plain error."

Of note, despite the fact that Thompson asked for concurrent time, the Court applied plain error review because he did not further object when the district court declined to make a recommendation. 

1/28/25: privilege log protections

In In Re Grand Jury Subpoena, dated July 21, 2023, --- F.4th ---, No. 24-2506 (9th Cir. 2025), the Court reversed the district court’s order compelling a law firm to provide the Government with a privilege log of documents that the law firm’s client asserts are protected under Fisher v. United States, 425 U.S. 391 (1976), and remanded for further proceedings.

In Fisher v. United States, 425 U.S. 391 (1976), the Supreme Court held that when the Fifth Amendment protects an individual from the compelled production of documents and the individual shares those documents with his attorney to obtain legal advice, the attorney-client privilege shields the attorney from compelled production of those documents to the government. Id. at 404–05. But if the government can already independently determine the existence, authenticity, and client’s custody of those documents such that the act of producing them would reveal no additional incriminating information, the Fifth Amendment does not protect the individual against the documents’ production, and the Fisher privilege accordingly does not apply. See id. at 410–11; United States v. Doe, 465 U.S. 605, 614 n.13 (1984). 

We consider here the novel question whether an attorney may be compelled to provide the government with a privilege log of documents that he asserts are protected under Fisher. We hold that an attorney cannot be ordered to provide the government with a privilege log of documents to which the Fisher privilege applies. To determine whether the requirements for Fisher protection are in fact satisfied, a district court will generally need to conduct an in camera review. Because the district court here ordered a privilege log to be provided to the Government without any such prior process, we reverse and remand.

A privilege log is generally an appropriate method for protecting privileged material. See In re Grand Jury Investigation, 974 F.2d 1068, 1071 (9th Cir. 1992) (citing Dole v. Milonas, 889 F.2d 885, 890 (9th Cir. 1989)). But here, if Law Firm were to provide the Government with a privilege log, that privilege log would reveal the existence, authenticity, and Client’s custody of those documents. See id. (holding that a privilege log identifying the attorney and client, the nature of the document, all persons to have received or sent the document, and the date the document was prepared was sufficient to evaluate the applicability of the attorney-client privilege). And, as explained, no Fifth Amendment act-of-production privilege applies when the existence, authenticity, and client’s custody of the documents “are a foregone conclusion.” Fisher, 425 U.S. at 410–11; see Doe, 465 U.S. at 614 n.13. If the Government were to receive a privilege log from Law Firm and then subpoena Client for the documents described in that privilege log, the documents would be subject to the foregone-conclusion exception, and Client would no longer be able to assert the act-of-production privilege. See Fisher, 425 U.S. at 411. Put simply, were Law Firm to provide the Government with a privilege log detailing documents to which the Fisher privilege applies, Client would lose any Fifth Amendment right to decline to produce the documents identified therein.

On remand, the district court need not accept Client’s and Law Firm’s bare assertions that the documents in Law Firm’s possession are protected under Fisher. “A number of methods and procedures are available to protect” privileged communications. Dole, 889 F.2d at 890. For example, the district court may order Law Firm to prepare and provide to the court the relevant portion of a privilege log and associated documents for in camera review so the court can determine whether the documents are in fact privileged under Fisher.

1/22/24: Good SCOTUS case on due process protections at trial

In Andrew v. White, 604 U.S. ---, No. 23-6573 (2025), a habeas case under 28 U.S.C. 2254, the Court held that "the Due Process Clause forbids the introduction of evidence so unduly prejudicial as to render a criminal trial fundamentally unfair."

It explained, “certain principles are fundamental enough that when new factual permutations arise, the necessity to apply the earlier rule will be beyond doubt.”

The Court further noted that the question for lower courts was whether "the trial court’s mistaken admission of irrelevant evidence was so 'unduly prejudicial' as to render her trial "fundamentally unfair.'"  

In answering this question, lower courts "might consider the relevance of the disputed evidence to the charges or sentencing factors, the degree of prejudice [the defendant] suffered from its introduction, and whether the trial court provided any mitigating instructions.  The ultimate question is whether . . . the evidence 'so infected the trial with unfairness”as to render the resulting conviction or sentence “a denial of due process.'"

1/21/25: Expert testimony on retail value in drug importation cases

In United States v. Velazquez, --- F.4th ---, No. 22-50239 (9th Cir. 2025), the Court affirmed the district court’s admission of an agent’s expert testimony about the retail value of seized fentanyl.

The question before us is whether law enforcement experts can testify about the retail value of narcotics in cases limited to charges of importing illicit drugs. We answer that question “yes” and, accordingly, affirm.

Velazquez advances three arguments as to why the district court abused its discretion when admitting Keisel’s expert testimony about the retail value of the fentanyl: (1) the testimony was irrelevant; (2) the prejudicial effect of the testimony substantially outweighed its probative value; and (3) this court has not definitively held that testimony about the retail value of drugs is permissible when the defendant is charged only with importation-related crimes. All three arguments are unpersuasive.

[W]e conclude that district courts do not abuse their discretion when admitting evidence of the retail value of narcotics in cases confined to importation charges when that evidence is relevant, probative, and not unfairly prejudicial under the standards set forth in the Federal Rules of Evidence.

1/16/25: Criminal forfeiture case

In United States v. Omidi, --- F.4th ---, 23-1959 (9th Cir. 2025), the Court  affirmed the district court’s forfeiture judgment of nearly $100 million in a case in which Julian Omidi and his business, Surgery Center Management, LLC (SCM), were convicted of charges arising from their “Get Thin” scheme in which Omidi and SCM defrauded insurance companies by submitting false claims for reimbursement.

Here, the government sought forfeiture of the proceeds of Omidi and SCM’s mail and wire fraud violations under 18 U.S.C. § 981(a)(1)(C) and 28 U.S.C. § 2461(c). While 18 U.S.C. § 981 governs civil forfeiture actions, 28 U.S.C. § 2461(c) “permits the government to seek criminal forfeiture whenever civil forfeiture is available and the defendant is found guilty of the offense[.]” United States v. Newman, 659 F.3d 1235, 1239 (9th Cir. 2011) (emphasis omitted), abrogated on other grounds by Honeycutt v. United States, 581 U.S. 443, 454 (2017). When applicable, such forfeiture is mandatory. Id. at 1240; 28 U.S.C. § 2461(c). If the government seeks forfeiture of specific property, such as the proceeds at issue here, it must establish “the requisite nexus between the property and the offense,” Fed. R. Crim. P. 32.2(b)(1)(A), by a preponderance of the evidence.

The question in this case is whether the district court erred in ordering the forfeiture of all Get Thin’s proceeds, even though conceivably some of the incoming funds ultimately paid for legitimate and medically necessary procedures. After a review of the relevant law and facts, we conclude that the district court got it right. 

[W]e follow our sister circuits to conclude that in a forfeiture case seeking proceeds of a fraud scheme under § 981(a)(1)(C), there is no so-called “100% Fraud Rule.” All proceeds directly or indirectly derived from a health care fraud scheme like Get Thin—even if a downstream legitimate transaction conceivably generated some of those proceeds—must be forfeited. The district court did not err in so concluding.

1/14/25: False answers to unlawful questions.

In United States v. Patnaik, --- F.4th ---, No. 23-10043 (9th Cir. 2025), the Court reversed the district court’s judgment dismissing an indictment charging the defendants with submitting fraudulent H-1B visa applications, and remanded for reinstatement of the criminal charges.

Before the district court, Defendants asserted that these allegedly false statements could not be materially false statements because it was unlawful for the government to ask for such information under ITServe All., Inc. v. Cissna, 443 F. Supp. 3d 14 (D.D.C. 2020). The district court accepted Defendants’ argument and granted their motion to dismiss the indictment. 

Yet, under longstanding principles, the government may protect itself against “those who would swindle it” even if the government demanded answers to questions it had no right asking. See United States v. Kapp, 302 U.S. 214, 218 (1937). So lying on H-1B visa applications remains visa fraud even when the lies were given in response to questions the government can’t legally ask—as long as the misrepresentations could have influenced USCIS at the time they were made. We thus reverse. 

This case turns on the element of materiality. A visa-application statement is material if it “could have affected or influenced the government’s decision to grant th[e] petition[].” United States v. Matsumaru, 244 F.3d 1092, 1101 (9th Cir. 2001). Materiality is assessed “at the time the alleged false statement was made” and “[l]ater proof that a truthful statement would not have helped the decision-making body does not render the false [statement] immaterial.” United States v. McKenna, 327 F.3d 830, 839 (9th Cir. 2003) (simplified).

The indictment sufficiently alleges a material misrepresentation. By law, H-1B petitioners must “establish that the H-1B beneficiary employees would fill specific, bona fide positions that were available at the time [the petitioner] filed the petitions, and that there was, or would be, a legitimate employer-employee relationship between [the petitioner] and the H-1B beneficiaries.” See Prasad, 18 F.4th at 316. Accurate information on where and for whom the H-1B beneficiaries will work could affect or influence the decision to grant the H-1B visa petition. See Matsumaru, 244 F.3d at 1101. Thus, a jury could find Defendants’ alleged false statements material. 

The principle that the government may punish untruthful responses to unlawful questions as fraud goes back to the Supreme Court’s 1937 Kapp decision. Since then, the Court’s cases “have consistently—indeed without exception—allowed sanctions for false statements or perjury; they have done so even in instances where the perjurer complained that the Government exceeded its constitutional powers in making the inquiry.”