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

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

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

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

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

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

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

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

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

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

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

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

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

Judge Graber dissented:

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

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

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

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

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

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

9/26/25: Restitution case

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

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

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

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

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

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

9/23/25: Interesting case on possessing firearms within 1,000 feet of a school in violation of 18 U.S.C. § 922(q)(2)(A)

 In United States v. Metcalf, --- F.4th ---, No. 24-4818 (9th Cir. 2025), a divided Court reversed the district court’s order denying Gabriel Cowan Metcalf’s motion to dismiss an indictment charging him with possessing firearms within 1,000 feet of a school in violation of the Gun-Free School Zones Act, 18 U.S.C. § 922(q)(2)(A), and remanded with direction to dismiss the indictment.

Gabriel Cowan Metcalf lives in Billings, Montana, across the street from a public elementary school. For several days in August 2023—before the school year started—Metcalf patrolled outside his home with a shotgun, including on the sidewalk in front of his home. He did so to protect himself and his mother, whom he lives with, from a former neighbor who had repeatedly violated a protection order that Metcalf’s mother held against the neighbor. Local law enforcement received multiple complaints about Metcalf and confronted him several times, but didn’t charge him with violating any law, and indeed told him that he was complying with state law. Only after Metcalf reached out to the FBI was he indicted for violating the Gun-Free School Zones Act, which prohibits possessing firearms within 1,000 feet of a school. See 18 U.S.C. § 922(q)(2)(A).

On appeal, we hold that Metcalf’s indictment must be dismissed. The Gun-Free School Zones Act excepts from the Act’s broad prohibition individuals who hold a license by their state, if “before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.” § 922(q)(2)(B)(ii). The parties do not dispute that Metcalf holds a license pursuant to Montana Code section 45-8-360. Instead, they dispute whether Montana’s procedure for issuing this license complied with the requirements set out in § 922(q)(2)(B)(ii). Applying the traditional tools of statutory interpretation, Metcalf has offered at least a plausible reading of the exception in § 922(q)(2)(B)(ii), such that when we factor in the canon of constitutional avoidance and the rule of lenity, Metcalf lacked the appropriate notice to be convicted of violating the Gun-Free School Zones Act. Affirming Metcalf’s conviction would be inconsistent with the principles of fair notice and of not punishing innocent conduct, which underly the presumption in favor of scienter that the Supreme Court addressed in Rehaif v. United States, 588 U.S. 225 (2019). Accordingly, we reverse the district court’s order denying Metcalf’s motion to dismiss. Because we conclude that Metcalf’s appeal is resolved by virtue of the absence of fair notice, we do not address Metcalf’s second argument—that his conviction under the Gun-Free School Zones Act violates his Second Amendment rights. 

The parties [] dispute whether the Montana license that Metcalf holds complies with the federal requirements for the license exception to apply—that is, whether Montana’s licensure requirement provides “that, before an individual obtains such a license, the law enforcement authorities of the State or political subdivision verify that the individual is qualified under law to receive the license.” § 922(q)(2)(B)(ii). 

Applying the traditional tools of statutory interpretation—looking to the text, its context, statutory presumptions, judicial constructions, and the canons of construction—we conclude that Metcalf offers at least a plausible reading of § 922(q)(2)(B)(ii), which would qualify him for the license exception. Given this plausible reading, the government did not establish that Metcalf was at least on notice that his Montana license—which explicitly purported to comply with the federal statute—was insufficient to except him from § 922(q)(2)(A)’s prohibition. Affirming Metcalf’s conviction would thus not only run afoul of the rule of lenity’s cautions but would also undermine the principles underlying the Supreme Court’s decision in Rehaif, and the presumption in favor of scienter.

Metcalf also finds support in constitutional avoidance and the rule of lenity, as both militate against applying § 922(q)(2)(A) here. Constitutional avoidance applies “when, after the application of ordinary textual analysis, the statute is found to be susceptible of more than one construction.” Prison Legal News v. Ryan, 39 F.4th 1121, 1131 (9th Cir. 2022) (quoting Clark v. Martinez, 543 U.S. 371, 385 (2005)). The canon directs that “where an otherwise acceptable construction of a statute would raise serious constitutional problems, the Court will construe the statute to avoid such problems.” Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades Council, 485 U.S. 568, 575 (1988); see also Ashwander v. Tenn. Valley Auth., 297 U.S. 288, 348 (1936) (“When the validity of an act of the Congress is drawn in question, and even if a serious doubt of constitutionality is raised, it is a cardinal principle that this Court will first ascertain whether a construction of the statute is fairly possible by which the question may be avoided.” (quoting Crowell v. Benson, 285 U.S. 22, 62 (1932))). The canon suggests that “courts should construe ambiguous statutes to avoid the need even to address serious questions about their constitutionality.” United States v. Davis, 588 U.S. 445, 463 n.6 (2019). 

Constitutional avoidance counsels against adopting the district court’s interpretation of § 922(q)(2)(B)(ii), even if it is the more natural reading of the statute. As explained, the statute is susceptible to at least two plausible interpretations. And as the parties’ extensive dispute over the validity of Metcalf’s conviction under § 922(q)(2)(A) lays bare, his conviction “raise[s] serious constitutional problems,” or at least “serious questions,” under the Second Amendment. Edward J. DeBartolo Corp., 485 U.S. at 575; Davis, 588 U.S. at 463 n.6; see also United States v. Allam, 140 F.4th 289, 291 (5th Cir. 2025) (addressing Second Amendment challenge to Gun-Free School Zones Act). Thus, under these circumstances, we can construe the statutory exception “to avoid such problems.” Edward J. DeBartolo Corp., 485 U.S. at 575. To be sure, the government’s proposed interpretation may be the more natural understanding of what it means for a state law enforcement authority to verify an individual’s qualifications. But “even if the Government’s reading were not the best one, the interpretation is at least ‘fairly possible’—so the canon of constitutional avoidance would still counsel us to adopt it.”

Here, as explained, Metcalf has offered a plausible reading of § 922(q)(2)(B)(ii), under which his license pursuant to Montana Code section 45-8-360 excepts him from the Gun-Free School Zones Act’s prohibition. While that alone may not be enough to trigger the rule’s application, the unique facts of this case militate in favor of its application. As Metcalf contends, he was informed by local authorities that it was permissible for him to be armed and that by possessing his firearm he was not violating the law. Metcalf then initiated a conversation with federal authorities, during which he expressed concerns about his interactions with the local officials and explained “how he has researched the law pertaining to firearms” and “went to great lengths to articulate that he follows the law.” Metcalf was also told by his state legislature, in Montana Code section 45-8-360, that he was “licensed and verified by the state of Montana within the meaning of the provisions regarding individual licensure and verification in the federal Gun-Free School Zones Act.” And before the district court’s decision in this case, there was no court decision that could have put Metcalf on notice that the license the legislature conferred upon him was, in fact, invalid to comply with federal law. Given these facts, we cannot say that Metcalf received the “fair warning … in language that the common world will understand,” with which the rule of lenity is concerned. 

Our decision today is a narrow one. Metcalf was the first, and to our knowledge, only, person in Montana to have raised the license exception in response to a charge for violating the Gun-Free School Zones Act. Our narrow conclusion results from the unique convergence of Metcalf’s plausible reading of Montana Code section 45-8-360, constitutional avoidance, the rule of lenity, and the absence of criminal notice. As one legal scholar has noted, Montana’s licensure process in section 45-8-360 is unique, and no other states of which we are aware have adopted a similar approach. See Eugene Volokh, Implementing the Right to Keep and Bear Arms for Self-Defense: An Analytical Framework and a Research Agenda, 56 UCLA L. Rev. 1443, 1528 & n.349 (2009). We do not purport to provide an authoritative exposition on the scope or limits of the license exception in the Gun-Free School Zones Act. We simply hold that the license exception includes at least some ambiguity given the unique facts of this case, requiring that we consider the rule of lenity and the presumption in favor of scienter as articulated in Rehaif. Here, the rule of lenity, the presumption in favor of scienter, and the principles articulated in Rehaif coalesce around one central point: fair notice. And Metcalf did not have that fair notice. We therefore conclude that the district court erred by declining to dismiss Metcalf’s indictment.

9/18/25: En banc decision in the 1326(d) context

In United States v. Rivera-Valdes, --- F.4th ---, 21-30177 (9th Cir. 2025) (en banc), the majority vacated the district court’s denial of Leopoldo Rivera-Valdes’s motion to dismiss an indictment alleging that he reentered the United States following deportation in violation of 8 U.S.C. § 1326, and remanded for further proceedings. Rivera-Valdes asserted that the underlying removal order was invalid because he was not afforded “reasonably calculated” notice of his removal hearing when the Government learned that its notice sent by certified mail was returned unclaimed.

Here is some of the helpful language from the majority opinion: 

Today we make explicit what has been implied in our prior case law. We hold that the notice afforded to noncitizens subject to removal is governed by the due process standards articulated in Mullane and Jones. Notice by the Government must be reasonably calculated to apprise noncitizens of the pendency of removal proceedings and to afford them the opportunity to be present and to participate. Jones, 547 U.S. at 226. “The notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane, 339 U.S. at 314 (internal citations omitted). Where the Government learns that its notice efforts have not succeeded, that knowledge triggers an obligation on the Government’s part to take additional reasonable steps to effect notice, if it is practicable to do so. Jones, 547 U.S. at 234. Notice is not “reasonably calculated” under the circumstances when the Government knows its method of service was ineffective and takes no additional steps to effect notice that are reasonably available to it. Id. at 227, 229.

“The fundamental requisite of due process of law is the opportunity to be heard.” Grannis v. Ordean, 234 U.S. 385, 394 (1914). This “right to be heard has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” Greene, 456 U.S. at 449 (quoting Mullane, 339 U.S. at 314). For that reason, “notice must be of such nature as reasonably to convey the required information, and it must afford a reasonable time for those interested to make their appearance.” Mullane, 339 U.S. at 314 (internal citations omitted). Here, the relevant question is whether personal service of the OSC on Rivera-Valdes conveyed the “required information” which would “afford [him] an opportunity” to appear at his removal hearing and “present [his] objections.” Id. It did not

Even if Rivera-Valdes establishes a due process violation, that is not the end of the district court’s inquiry. Rivera-Valdes must demonstrate that he is entitled to relief under the other prongs of collateral attack: prejudice, administrative exhaustion, and deprivation of judicial review. See 8 U.S.C. § 1326(d); Martinez, 786 F.3d at 1230. The district court left these questions undecided, and we decline to consider them in the first instance.

Under Mullane and Jones, due process requires that the notice afforded to individuals subject to immigration removal proceedings must be reasonably calculated to inform them of the pendency of the proceedings and a meaningful opportunity to appear and to contest the charges. When the Government learned that its only attempt to notify Rivera-Valdes of the date, time, and location of his removal hearing had failed, it was not enough for the Government to throw up its hands and do nothing. The Government was obligated to take additional reasonable steps to effect notice, provided it was practicable to do so. See Jones, 547 U.S. at 234. We therefore vacate the district court’s judgment and remand for further proceedings consistent with this opinion. 

9/16/25: 4th Amend and other issues

In United States v. Bourdreau, --- F.4th ---, No. 23-4092 (9th Cir. 2025), the Court affirmed Christopher Todd Boudreau’s conviction and sentence for attempted coercion and enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b) and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B).

Boudreau was convicted of attempted coercion and enticement of a minor to engage in illegal sexual activity under 18 U.S.C. § 2422(b) and possession of child pornography under 18 U.S.C. § 2252A(a)(5)(B). On appeal, he challenges the district court’s denial of three pretrial motions: (1) his motion to suppress the child pornography seized from his residence; (2) his motion to sever the two charges in his indictment as improperly joined; and (3) his motion in limine to exclude evidence about a relationship that he pursued with a 17-yearold girl during the same month as his charged conduct. Boudreau also appeals the substantive reasonableness of his sentence. We affirm. 

Boudreau makes two arguments for suppressing the child pornography found at his residence. First, he contends that the warrant was not supported by probable cause to believe that child pornography would be found. Second, he contends that the affidavit supporting the warrant application contained knowingly false or reckless statements, demanding suppression under Franks v. Delaware, 438 U.S. 154 (1978).

To start, to the extent that the Government suggests the child pornography found at Boudreau’s residence should not be suppressed because the search warrant affidavit established probable cause to believe that officers would find evidence of enticement of a minor on Boudreau’s computer, this argument fails. For this argument to plausibly work, the Government must have argued that the child pornography inevitably would have been discovered because it was in plain view on Boudreau’s hard drive during the officers’ lawful search for evidence of enticement. But the Government did not cite or discuss either the inevitable-discovery exception or the plain-view doctrine. Cf., e.g., Nix v. Williams, 467 U.S. 431, 440–48 (1984) (adopting the inevitable-discovery doctrine); Arizona v. Hicks, 480 U.S. 321, 325–29 (1987) (explaining the requirements of the plain-view doctrine). Therefore, we do not address whether either principle applies here. See Fed. R. App. P. 28(a)(8), (b); Greenwood v. FAA, 28 F.3d 971, 977 (9th Cir. 1994). Instead, in this case the Government must show that the warrant application contained sufficient indicia of probable cause to believe that Boudreau possessed child pornography at his residence.

This case falls between Gourde and Dougherty. Unlike Gourde, the search warrant was not issued specifically to search for evidence of child pornography. Rather, similar to Dougherty, the supporting affidavit focused on facts related to Boudreau’s commission of a related but distinct crime— attempted enticement of a minor. Under our precedent, this alone does not establish probable cause to search his residence for evidence of any crime related to a sexual interest in children. See Dougherty, 654 F.3d at 899. But relevant facts and circumstances from a related offense may contribute to the totality of the circumstances supporting probable cause to search for evidence of child pornography. Such is the case here.

Given the totality of circumstances presented here, we conclude that the warrant, issued to search for evidence of a crime under Montana Code § 45-5-625, was supported by probable cause to believe not only that evidence of enticement would be found at Boudreau’s residence, but also evidence of child pornography.

Boudreau also argues that his motion to suppress should have been granted because Detective Wafstet knowingly or recklessly omitted from his affidavit that Boudreau used only his cellphone to communicate with “Mia” and that the cellphone had already been recovered by officers before the search warrant was sought. Bourdeau contends that this omission misled the issuing judge into believing that the search could locate an electronic device that was used to communicate with “Mia.”

Here, Boudreau’s Franks argument fails because even if Detective Wafstet knew and failed to disclose that Boudreau used only his cellphone to communicate with “Mia,”1 this omission was immaterial. As we have explained, there was probable cause to believe that Boudreau possessed child pornography. If Detective Wafstet lied or omitted material facts regarding Boudreau’s method of communication with “Mia,” it would have had no effect on the fair probability that Boudreau possessed child pornography. Either way, officers still had probable cause to search his home and seize any electronic devices capable of storing child pornography.

Next, Bourdeau argues that the district court erred by not severing the two charges in his indictment.

Of the applicable factors, the first factor carries the most weight in this case. Enticement of a minor and possession of child pornography both involve as an element that the defendant sought to engage in inappropriate sexual activities with minors, in person or voyeuristically. Our sister circuits that have addressed this issue have uniformly held that enticement of a minor is of the same or similar character to possession of child pornography.

While the Government may have been able to prove its case without Hope’s testimony, as Boudreau contends, that does not render the evidence unfairly prejudicial. Rather, it suggests that any error was harmless. See Lague, 971 F.3d at 1041. At trial, the jury heard properly admitted evidence of Boudreau’s predatory behavior toward someone he believed was 12-year-old girl. In this context, it is unlikely that Hope’s testimony caused the jury to convict Boudreau on an improper basis. 

On this record, the district court did not abuse its discretion in concluding that the sentence it imposed did not result in unwarranted sentencing disparity. 

9/15/24: fine and special assessment case

In United States v. Patrick, --- F.4th ---, No. 24-2638 (9th Cir. 2025), the Court affirmed the district court’s order, in a criminal case, imposing a fine and special assessment due immediately while also creating a payment schedule.

During the sentencing hearing, the district court ordered a fine of $1,000 and a special assessment of $100 “due immediately.” In recognition of his indigency, the court set up a monthly payment schedule for Patrick while he was incarcerated and on supervised release. On appeal, Patrick does not contest the imposition of the fine or special assessment, totaling $1,100. Rather, he argues that ordering the total due immediately while also creating a payment schedule violates 18 U.S.C. § 3572(d)(1), which allows the district court to either make the monetary penalties due immediately or create an installment schedule, but not both.

We hold that the district court did not violate 18 U.S.C. § 3572(d)(1). The district court properly made the fine and special assessment due immediately but allowed Patrick to discharge his obligations with minimal payments in recognition of his indigency. The district court’s order comports with our case law interpreting 18 U.S.C. § 3572(d)(1) in the restitution context and with the case law of our sister circuits in this context.

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

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

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

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

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

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

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

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

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

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

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

9/9/25: Second Amendment case

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

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

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

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

9/5/25: Investment fraud case

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

9/3/25: Case on supervised release sentencing

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

8/12/25: Due process and Rule 702

 The Ninth released seven published decisions today.  There was one habeas opinion, but the rest were civil.  The habeas decision is worth noting because it is a grant and one of the civil cases is worth summarizing because it deals with experts under Fed. R. Evid. 702. 

First, in Bieganski v. Shinn, --- F.4th ---, No. 23-1982 (9th Cir. 2025), the Court reversed the district court’s denial of Bradley Bieganski’s habeas petition challenging his Arizona jury conviction for child molestation and remanded with instructions to issue a writ of habeas corpus under 28 U.S.C. § 2254.

The Court held that Arizona’s statutory scheme unconstitutionally shifted the burden of disproving an essential element of the crime of child molestation to the defendant, contrary to the Due Process Clause of the Fourteenth Amendment.  It is a long opinion.  Here is some of the key language.  

The question in this habeas case is whether Arizona’s statutory scheme unconstitutionally shifted the burden of disproving an essential element of the crime of child molestation to the defendant, contrary to the Due Process Clause of the Fourteenth Amendment as established in the Supreme Court’s decisions in, inter alia, Patterson v. New York, 432 U.S. 197 (1977); Mullaney v. Wilbur, 421 U.S. 684 (1975); and In re Winship, 397 U.S. 358 (1970). The district court concluded that the scheme did not violate the Due Process Clause. We reverse. 

The sole issue on appeal is whether Arizona’s former child molestation scheme—in which any knowing or intentional touching of a child was considered child molestation unless the defendant proved by a preponderance of the evidence that he lacked any sexual motivation—shifts the burden of proving an essential element of the offense of child molestation to the defendant in violation of the Due Process Clause of the Fourteenth Amendment. 

“[T]here are obviously constitutional limits beyond which the States may not go . . . .” Patterson, 432 U.S. at 210. But the constraints are few. The two principal constraints on state criminal laws are the Equal Protection and Due Process Clauses of the Fourteenth Amendment, which secure equality and fairness to “any person” subject to the state’s jurisdiction. U.S. Const. amend. XIV, § 1. Only the Due Process Clause is at issue here. That Clause provides that “no State shall . . . deprive any person of life, liberty, or property, without due process of law.” Id. The phrase “due process of law” is a capacious phrase including “the best ideas of all systems and of every age . . . to draw its inspiration from every fountain of justice.” Hurtado v. California, 110 U.S. 516, 531 (1884).

The principle of due process at issue here is that “[g]uilt in a criminal case must be proved beyond a reasonable doubt,” Brinegar v. United States, 338 U.S. 160, 174 (1949), as to “every fact necessary to constitute the crime charged,” Davis v. United States, 160 U.S. 469, 493 (1895). That standard preserves “the presumption of innocence.” Winship, 397 U.S. at 363. The states, as we have noted, have broad leeway in determining what facts are “necessary to constitute the crime charged.” Id. The Court has warned that “we should not lightly construe the Constitution so as to intrude upon the administration of justice by the individual States,” as it is their business “to regulate procedures under which its laws are carried out, including the burden of producing evidence and the burden of persuasion.” Patterson, 432 U.S. at 201 (quoting Speiser v. Randall, 357 U.S. 513, 523 (1958)). 

Nevertheless, the Court has also been clear that even if “the Due Process Clause d[oes] not invalidate every instance of burdening the defendant with proving an exculpatory fact,” Patterson, 432 U.S. at 203 n.9, there is “some limit upon state authority to reallocate the traditional burden of proof,” Jones v. United States, 526 U.S. 227, 241 (1999) (citations omitted).

A state is not required to prove “the nonexistence of all affirmative defenses[.]” Patterson, 432 U.S. at 210. Rather, “[t]he State is foreclosed from shifting the burden of proof to the defendant only ‘when an affirmative defense does negate an element of the crime.’” Smith, 568 U.S. at 110 (quoting Martin v. Ohio, 480 U.S. 228, 237 (1987) (Powell, J., dissenting)). A state cannot exercise “unlimited choice over characterizing a stated fact as an element,” because that “would leave the State substantially free to manipulate its way out of Winship.” Jones, 526 U.S. at 240–41.

These are necessarily general prescriptions. In Morrison, the Court acknowledged that “[t]he decisive considerations are too variable, too much distinctions of degree, too dependent in last analysis upon a common sense estimate of fairness . . . to be crowded into a formula.” 291 U.S. at 91. Nevertheless, just this year the Court reminded us that “[g]eneral legal principles can constitute clearly established federal law for purposes of AEDPA” even if those principles lack “precise contours.” Andrew, 145 S. Ct. at 82 (quoting Lockyer, 538 U.S. at 72). We must therefore determine whether the Arizona Supreme Court unreasonably applied these general principles.

We have profound concerns with the substance of the Arizona scheme, and with the Arizona Supreme Court’s analysis in Holle II. Those concerns persuade us that Arizona has shifted the burden of proving the only fact that really matters in child molestation cases—whether the defendant touched the child’s private parts with some kind of sexual motive. That fact is the only evidence that is morally inculpatory, what the Supreme Court referred to in the burden-shifting cases as the proof of “sinister significance.” 

Without the affirmative defense, child molestation in Arizona would be a strict liability crime: touch the child, you are a child molester. That is a dramatic, but not a hyperbolic, conclusion. And it was in its discussion of the affirmative defense that the Arizona Supreme Court sowed the undoing of its own analysis. The court acknowledged that “the criminal code should clearly differentiate between unlawful conduct and innocent, acceptable behavior.” Holle II, 379 P.3d at 206. The problem is that § 13-1410 contemplates no “innocent, acceptable behavior.” The statute is so broad that every knowing or intentional touching of a child’s genitals is “unlawful conduct.” 

First, citizens are not left to “the mercy of noblesse oblige.” United States v. Stevens, 559 U.S. 460, 480 (2010). The Supreme Court has warned us that courts should not “construe a criminal statute on the assumption that the Government will ‘use it responsibly.’” McDonnell v. United States, 579 U.S. 550, 576 (2016) (quoting Stevens, 559 U.S. at 480). And, most recently, in Trump v. United States, the Court repeated that courts should not “decline to decide significant constitutional questions based on the Government’s promises of good faith” in prosecutorial decisions. 603 U.S. 593, 637 (2024). The Arizona Supreme Court cannot avoid the implications of its analysis by assuring us that Arizona prosecutors will act responsibly.

Arizona’s child molestation scheme is not just broad, it is pernicious. It criminalizes every knowing or intentional touching of a child’s private parts, no matter the reason. Everyone who knowingly changes a diaper could be convicted of child molestation, even when the state’s proof of that fact is not proof of any evil interest, but only of “traditionally lawful conduct.”

Arizona has foisted the burden of proving the sexual motivation of the defendant on the defendant himself. This the state cannot do consistent with the Due Process Clause. “[E]very fact necessary to constitute the crime” charged must be proven by the state “beyond a reasonable doubt.” Winship, 397 U.S. at 364. The Supreme Court cases clearly establish that Arizona cannot shift the burden of proof to the defendant. See Smith, 568 U.S. at 110; Mullaney, 421 U.S. at 698; Morrison, 291 U.S. at 88, 90. Although the prohibition on burden-shifting is a general principle, “[g]eneral legal principles can constitute clearly established federal law for purposes of AEDPA . . . .” Andrew, 145 S. Ct. at 82. That said, we think there are several Supreme Court cases that amply demonstrate that Arizona has crossed the line in this instance.  

These cases clearly establish that the state is responsible for proving beyond a reasonable doubt the critical facts that establish the crime. Although § 13-1410 defines child molestation as “any touching” of a child’s genitals, the statute only requires the state to prove that the defendant “intentionally and knowingly” touched the child. In Arizona the fact of touching is essential to proving the crime, but everyone implicitly understands that it is not the sine qua non of child molestation and, absent some indication that the defendant touched the child with sexual interest, the touching will not be prosecuted. 

The core of child molestation in Arizona is that the defendant did so with sexual interest. That has historically been true in Arizona, see Part I.A., supra, and “Arizona stands alone among all United States jurisdictions in allocating the burden of proof this way,” May, 245 F. Supp. 3d at 1149. Without the element of sexual interest, the Arizona Supreme Court told us, we only have a “technical[]” violation of the statute that would be “improper[]” to prosecute. See Holle II, 379 P.3d at 206. What distinguishes a technical from a non-technical violation is, precisely, whether the defendant can successfully assert the affirmative defense of lack of sexual motivation. But the state is not required to prove the defendant’s sexual interest. Holle II makes clear that the fact is effectively presumed. This is a straightforward violation of clearly established due process principles, as determined by the U.S. Supreme Court. “Such shifting of the burden of persuasion with respect to a fact which the State deems so important that it must be either proved or presumed is impermissible under the Due Process Clause.” Patterson, 432 U.S. at 215. 

In the end, once we pierce the form of the state’s scheme, we have little difficulty concluding that Arizona has shifted the burden of proof from the state to the defendant to prove a core element of child molestation—that the defendant touched the child’s private parts with some kind of sexual interest. Arizona has done so in violation of the Due Process Clause of the Fourteenth Amendment, as clearly established in decisions of the United States Supreme Court. 28 U.S.C. § 2254(d)(1). In Bieganski’s case, the Arizona Court of Appeals was bound by Holle II. For the reasons we have explained, Holle II identified the correct legal principles in the Supreme Court’s cases, but its application of those principles to § 13-1410 was an objectively unreasonable one. See Williams, 529 U.S. at 413.  

Next, in Engilis v. Monsanto Company, --- F.4th ---, No. 23-4201 (9th Cir. 2025), the Court affirmed the district court’s summary judgment in favor of Monsanto Company.  It held that the district court did not abuse its discretion in excluding the opinion of an expert witness.  Here is some of the relevant language.

Here, the district court concluded the expert’s differential etiology was unreliable pursuant to Federal Rule of Evidence 702 because the expert failed to reliably rule out obesity as a potential cause of Peter Engilis’s cancer. We affirm.  

The parties agree that the admissibility of expert testimony is controlled by Federal Rule of Evidence 702. See Elosu v. Middlefork Ranch Inc., 26 F.4th 1017, 1023 (9th Cir. 2022). That Rule provides that, “before admitting expert testimony, the district court must perform a gatekeeping role to ensure that the [proffered] testimony is both relevant and reliable.”

In 2000, Rule 702 was amended for the first time to codify the holdings of the Daubert trilogy, and to resolve conflicts that had arisen within the courts about the meaning of that trilogy. Fed. R. Evid. 702 advisory committee’s note to 2000 amendment; Fern M. Smith, Report of the Advisory Committee on Evidence Rules 6–7 (1999) [hereinafter May 1, 1999 Report], https://perma.cc/LH3V-5GBB. The amendment “clearly envision[ed] a more rigorous and structured approach” to Rule 702 than some courts were then employing. May 1, 1999 Report at 7. It “affirm[ed] the trial court’s role as gatekeeper and provide[d] some general standards that the trial court must use to assess the reliability and helpfulness of proffered expert testimony.” Fed. R. Evid. 702 advisory committee’s note to 2000 amendment.

The Rule was [] amended again in December 2023 to expressly require a proponent of expert testimony to “demonstrate[] to the court that it is more likely than not that” the four admissibility requirements are satisfied. Fed. R. Evid. 702 (2023). The amendment also modified subsection (d), which now requires that “the expert’s opinion reflects a reliable application of the principles and methods to the facts of the case.” Id.

This amendment sought to “clarify and emphasize” that proffered expert testimony must meet the admissibility requirements of Rule 702 by a preponderance of the evidence. Fed. R. Evid. 702 advisory committee’s note to 2023 amendment. Before the amendment, “many courts” had erroneously held “that the critical questions of the sufficiency of an expert’s basis, and the application of the expert’s methodology, are questions of weight and not admissibility.” Id. Properly applied, Rule 702 requires that challenges to an expert’s opinion go to the weight of the evidence only if a court first finds it more likely than not that an expert has a sufficient basis to support an opinion. Id. The amendment also aimed “to emphasize that each expert opinion must stay within the bounds of what can be concluded from a reliable application of the expert’s basis and methodology.” Id. “Judicial gatekeeping is essential” to ensure that an expert’s conclusions do not “go beyond what the expert’s basis and methodology may reliably support.” Id. As the Advisory Committee’s note explains, the amendment did not “impose[] any new, specific procedures,” and was “simply intended to clarify” existing law. Id.

[I]nsofar as the parties argue about the degree to which the amendments establish, or refute, that Rule 702 is a “liberal” standard that favors admission as “the rule, not the exception,” we confirm that a proponent of expert testimony must always establish the admissibility criteria of Rule 702 by a preponderance of the evidence and that there is no presumption in favor of admission.  

Several of our cases have stated that “Rule 702 should be applied with a ‘liberal thrust’ favoring admission.” Messick, 747 F.3d at 1196 (quoting Daubert, 509 U.S. at 588); Wendell v. GlaxoSmithKline LLC, 858 F.3d 1227, 1232 (9th Cir. 2017). Rule 702 liberalized the admission of expert testimony as compared to the Frye test, but it did not establish a categorical preference for admitting expert testimony. 

Our case law should not be understood to suggest a presumption of admission. There is no such presumption, as a proponent of expert testimony must always establish the admissibility requirements of Rule 702 by a preponderance of the evidence. See Fed. R. Evid. 702 (2023). 

We have also stated that, where experts’ opinions “are not the ‘junk science’ Rule 702 was meant to exclude,” Wendell, 858 F.3d at 1237 (citation omitted), “the interests of justice favor leaving difficult issues in the hands of the jury and relying on the safeguards of the adversary system . . . to ‘attack[] shaky but admissible evidence,’” id. (quoting Daubert, 509 U.S. at 596). To be sure, Rule 702 is concerned with “the soundness of [the expert’s] methodology,” rather than “the correctness of the expert’s conclusions.” Primiano, 598 F.3d at 564 (citation omitted). But “shaky” expert testimony, like any expert testimony, must still be “admissible,” and this requires a determination by the trial court that it satisfies the threshold requirements established by Rule 702.  

Only “[i]f the proposed testimony meets the thresholds of relevance and reliability” is its proponent “entitled to have the jury decide upon its credibility.” Elosu, 26 F.4th at 1024 (citation modified). The district court “cannot abdicate its role as gatekeeper,” nor “delegat[e] that role to the jury.”

Consistent with the 2023 amendment, our precedent establishes that Rule 702 requires a proponent of expert testimony to demonstrate each of the requirements of Rule 702 by a preponderance of the evidence.

The district court’s “responsibility to screen expert testimony,” Elosu, 26 F.4th at 1020, encompasses the requirement that expert testimony be “based on sufficient facts or data,” Fed. R. Evid. 702(b). This element “requires foundation.” Elosu, 26 F.4th at 1025. The “key inquiry” is “whether an expert had sufficient factual grounds on which to draw conclusions.” 

8/4/25: Duplicity

In United States v. Bradford, --- F.4th ---, No. 23-4111 (9th Cir. 2025), the Court affirmed Donavin Dwayne Bradford’s conviction and sentence for multiple crimes related to sex trafficking several victims, including minors.

A duplicitous indictment can result in numerous “vice[s].” United States v. Starks, 515 F.2d 112, 116–17 (3d Cir. 1975). For example, if an indictment contains a duplicitous count, then “a general verdict for a defendant on that count does not reveal whether the jury found him not guilty of one crime or not guilty of both,” and such an outcome “could prejudice the defendant in protecting himself against double jeopardy.” Id. at 116. Conversely, “a general verdict of guilty does not disclose whether the jury found the defendant guilty of one crime or of both,” which “could prejudice the defendant in sentencing and in obtaining appellate review.” Id. “Duplicity may also give rise to problems regarding the admissibility of evidence, including its admissibility against one or more codefendants.” UCO Oil, 546 F.2d at 835. And further, “there is no way of knowing with a general verdict on two separate offenses joined in a single count whether the jury was unanimous with respect to either.” Starks, 515 F.2d at 117.

Here, Bradford argues that Counts 1 and 2 of the superseding indictment were duplicitous because, in addition to charging him with violating § 1591 by sex trafficking a minor according to the statute’s lengthy list of other verbs,3 they also charged him with violating § 1591 by advertising—something that he argues is a separate crime prohibited by the same statute. Bradford argues that, consequently, he may have been subjected to several of the vices of duplicity.

We reject Bradford’s arguments because § 1591 does not proscribe sex trafficking a minor via advertising as a separate and distinct crime; therefore, neither count in the superseding indictment is duplicitous and Bradford was not deprived of any defense.

[C]ase law does not support Bradford’s broad argument that a statute that includes multiple scienter requirements always establishes multiple crimes.  

Because sex trafficking a minor by advertising the minor for commercial sex with the knowledge that the minor is under the age of eighteen is merely an alternate means by which a defendant can violate § 1591, the statute defines only one offense. We hold that Counts 1 and 2 of the superseding indictment are not duplicitous.

We hold that sex trafficking a minor by advertising is not a separate and distinct crime under 18 U.S.C. § 1591; rather, it is one of the various means by which the statute can be violated. Therefore, Counts 1 and 2 of the superseding indictment are not duplicitous. We also hold that Bradford failed to show procedural or substantive error in his sentence.