4/11/25: Interesting 11th Circuit decision on Hobbs Act robbery

No published criminal decisions today from the 9th, so I have time to share an interesting case from the 11th Circuit. 

In United States v. O'Steen, --- F.4th ---, No. 22-13569 (11th Cir. 2025), the Court vacated the defendant's convictions. 

This appeal is the last chapter of a lengthy FBI investigation of the State Attorney for the Third Judicial Circuit of Florida, Jeffrey Alan Siegmeister. The investigation began in August 2018, after Andy Tong, whom Siegmeister was prosecuting for maintaining a gambling house in violation of Florida law,2 told the FBI that his attorney, Marion Michael O’Steen, would have to pay Siegmeister $50,000 for a favorable disposition of the case. The investigation concluded in February 2021, when a Middle District of Florida grand jury returned a twelve-count indictment against Siegmeister and O’Steen. Siegmeister was charged in eleven counts, O’Steen in four. Relevant here are Counts One through Four .

The Court's Hobbs Act discussion is particularly interesting. 

In his Rule 29 motion for acquittal at trial, O’Steen argued that he could not be convicted of Hobbs Act extortion because the extorted property must be the “actual property” of the victim.

The Hobbs Act defines “commerce” to include all “commerce over which the United States has jurisdiction.” 18 U.S.C. § 1951(b)(3). In other words, the statute reaches only as far as Congress can exercise its constitutional authority over interstate commerce. See U.S. Const. art. I, § 8, cl. 3. In order to establish the required “interstate nexus,” the Government must “show a realistic probability of an effect, or some actual de minimis effect, on commerce.” 

Although this Court has never squarely considered whether the Government can prove Hobbs Act extortion where the extorted property was provided solely by law enforcement, the Sixth Circuit addressed precisely that question in United States v. DiCarlantonio, 870 F.2d 1058 (6th Cir. 1989). In that case, like here, the allegedly extorted money had been provided to the victim by the FBI. See DiCarlantonio, 870 F.2d at 1060. And the Sixth Circuit held that “the mere receipt of government funds” could not create the requisite effect on interstate commerce. Id. at 1060–61; see also United States v. Rindone, 631 F.2d 491, 494 (7th Cir. 1980). 

We agree. Although the use of government funds as bribe money depletes the funds available to the government, it does not “deplete[] the assets of an individual who is directly engaged in interstate commerce.” See Diaz, 248 F.3d at 1084–45 (emphasis added). Therefore, evidence of an alleged extortion involving purely government money cannot establish even the minimal effect on interstate commerce that is required by the Hobbs Act.

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

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

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

3/27/25: Important Fourth Amendment Decision

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3/21/25: Two SCOTUS decisions today

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3/18/25: Healthcare kickbacks

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

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

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

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

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

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

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

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

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

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

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

3/17/25: Two decisions today

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

3/13/25: Data breach cover up

In United States v. Sullivan, --- F.4th ---, No. 23-927 (9th Cir. 2024), the Court affirmed Sullivan’s jury conviction for obstruction of justice and misprision of a felony arising from his efforts, while the Chief Security Officer for Uber Technologies, to cover up a major data breach even as Uber underwent investigation by the Federal Trade Commission into the company’s data security practices.  

Here are some key parts of the opinion. 

Sullivan claims error with respect to two of his proposed jury instructions regarding the obstruction conviction—the “nexus” instruction and the “duty to disclose” instruction.

In accord with the statutory language, the jurors were instructed: “For the defendant to be found guilty [under Section 1505], the government must prove each of the following elements beyond a reasonable doubt: First, there was a proceeding pending before a department or agency of the United States; Second, the defendant was aware of the proceeding; and Third, the defendant intentionally endeavored corruptly to influence, obstruct, or impede the pending proceeding.” This instruction precisely mirrors the elements of Section 1505, as spelled out in United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).

Ninth Circuit precedent forecloses Sullivan’s argument. We held in United States v. Bhagat that there is no “need to supplement the Price instructions with additional elements,” including a “nexus” element, for a conviction under Section 1505. 

Sullivan also claims that the district court erred by rejecting his proposed “duty to disclose” instruction: that, if the basis of the obstruction-of-justice conviction was Sullivan’s “withholding of information, the government must prove beyond a reasonable doubt that [he] had a duty to disclose that information to the FTC.” Sullivan contends that, without this instruction, the jury may have convicted on a theory that was invalid under Section 1505—that is, inaction by a defendant under no duty to disclose. He urges application of the Yates rule that “a verdict [is required] to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” 

The Yates rule applies only to disjunctive charges and theories of culpability. Thus, if multiple “ways in which an offense may be committed” are alleged conjunctively in one count, then “proof of any one of those acts conjunctively charged may establish guilt,” and Yates is inapplicable. 

A tandem prosecution under Section 2(b) and a substantive criminal statute presents conjunctive theories of culpability. In this context, Section 2(b) “is considered embodied in full in every federal indictment.” Therefore, if a theory based on the inaction of a defendant under no duty to disclose would be valid under either Section 2(b) or Section 1505, then the instruction was not in error.

 Section 2(b) also does not require a defendant to have a duty to disclose if prosecuted for inaction. Singh, 979 F.3d at 717–18 (concluding that the defendant need not have a duty to disclose, so long as the third party who does the act has such a duty). Sullivan concedes that “Uber was duty-bound to respond to formal FTC inquiries issued to Uber.”

We need not reach the question of validity under Section 1505. Because the legal theories under Section 1505 and Section 2(b) are conjunctive, the validity under Section 2(b) alone renders the omission of a duty-to-disclose instruction proper. 

We now turn to Sullivan’s argument that the evidence of his alleged misprision was insufficient as a matter of law.

To establish misprision, the government is obliged to show that “the principal committed and completed the felony alleged.” Here, that meant proving that the hackers had “intentionally accesse[d]” Uber’s computers “without authorization . . . and thereby obtain[ed]” information from those “protected computer[s],” in violation of the CFAA. 

The hackers’ use of stolen credentials to access protected, private servers was a typical CFAA violation.

Sullivan argues that Uber’s post hoc authorization, via the NDA, retroactively rendered the hackers’ access authorized—thereby erasing their felony. But this is a false premise, inconsistent with the most plain and natural reading of the CFAA.

Finally, we address Sullivan’s contention that the district court abused its discretion in permitting the introduction of the guilty plea agreement signed by one of the hackers.

Any unfair prejudice to the defendant resulting from the plea’s admission into evidence does not substantially outweigh the plea’s probative value. Because the hacker and Sullivan pleaded guilty to separate crimes, the fact of this plea does not improperly impute blame for the hacker’s conduct to Sullivan. 

3/11/25: solicitation to commit a crime of violence

In United States v. Walthall, --- F.4th ---, No. 22-50204 (9th Cir. 2025), the Court affirmed Walthall’s conviction for solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a). Here are some key parts of the opinion: 

While awaiting sentencing after having been found guilty of fraud, John Walthall asked a fellow inmate to help arrange for hit men to murder the judge, the investigators, and the attorneys involved in his fraud case. The inmate contacted authorities, and Walthall was ultimately convicted of solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a). He now appeals, arguing that the evidence was insufficient because he had no direct contact with the hit men, who apparently did not exist. But the statute does not require that solicitation be carried out by a direct communication, rather than through an intermediary, nor does it require that the person solicited actually exist. Although it does require circumstances strongly corroborative of the defendant’s intent for someone to commit violence, the evidence here was sufficient to allow the jury to find such corroboration. Walthall’s other challenges to his conviction also lack merit—including his argument that the district court erred in finding him incapable of representing himself. We affirm.

Walthall argues that the evidence was insufficient to allow the jury to find him guilty of soliciting a crime of violence because, he says, “nobody that Mr. Walthall spoke to was asked to murder the federal officials, nor was there any direct and known conduit to an actual person who would engage in the violent conduct.” In his view, 18 U.S.C. § 373(a) requires (1) that the defendant have “direct” communication with the person whom he intends to commit an act of violence and (2) that the person with whom he communicates be a specific “actual person.” We think the statute requires neither of those things.

[W]e have little difficulty concluding that the evidence in this case was sufficient for conviction. 

Walthall advances three challenges to the jury instructions. The parties debate the standard of review that applies to those challenges, which Walthall did not advance below and arguably affirmatively waived. We need not resolve that debate because even if we were to review de novo, we would conclude that Walthall’s challenges fail.

First, Walthall objects that although section 373(a) requires the defendant to intend that “another person” engage in a crime of violence and to solicit “such other person to engage in such conduct,” the instructions did not refer to “such other person” but simply repeated the phrase “another person.” As a result, he says, “the instructions eliminated the unity required between the solicited person and the intended violent conduct.” But the instructions required the jury to find that Walthall “solicited, commanded, induced, or otherwise endeavored to persuade another person to carry out a federal felony crime of violence”—in other words, that he solicited the person whom he intended to carry out the crime of violence. That is precisely the offense that the statute describes. Even if some other instruction might have been clearer, “[t]he availability of a better instruction is not a ground for reversal.” United States v. Garza, 980 F.2d 546, 554 (9th Cir. 1992) (quoting United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990)). 

Second, Walthall objects that the instructions did not specify that “another person” must be an actual person. As we have already explained, however, that is not an element of the statute. 

Third, Walthall contends that the district court erred in instructing the jury that “killing or attempting to kill any officer or employee of the United States . . . is a federal felony crime of violence.” In his view, the reference to attempt was confusing because the district court did not define attempt. The government acknowledges that given the nature of the charged conduct—that is, solicitation of actual murder, not attempted murder—it would have been better for the instructions not to refer to attempt. Assuming without deciding that the reference to attempt was legally erroneous, the error was harmless. See United States v. Bachmeier, 8 F.4th 1059, 1065 (9th Cir. 2021). Other parts of the instructions stated that “the United States alleges that the federal felony crimes of violence solicited were” murder and assault, without mentioning attempt. No evidence suggested that Walthall solicited attempted murder, and the prosecutor did not mention attempted murder in the opening statement or the closing arguments. And on the verdict form, the jury specifically found Walthall guilty of “soliciting the murder of” the five named victims, not of soliciting attempted murder. The reference to attempt therefore had no effect on the verdict. 

Next, Walthall challenges the district court’s denial of his right to represent himself.

In the earlier appeal, we held that “once the district court determined that Walthall was competent to stand trial, the district court erred by not making further inquiry to support findings concerning Walthall’s ability to represent himself.” Walthall, 782 F. App’x at 580. We did not foreclose the district court from denying Walthall’s self-representation request under Edwards; we simply required the district court to conduct “further inquiry” and make appropriate “findings concerning Walthall’s ability to represent himself.” Id. That is exactly what it did.

Walthall also asserts that Edwards does not apply in federal court because 28 U.S.C. § 1654 gives federal criminal defendants an absolute right to self-representation. It does not.

Finally, Walthall asserts that the district court erred in calculating the applicable sentencing range under the advisory Sentencing Guidelines based on the maximum sentence for soliciting murder rather than for soliciting attempted murder. Because Walthall did not raise this issue at sentencing, we review for plain error. United States v. Bautista, 989 F.3d 698, 701 (9th Cir. 2021). We find none.

As we have already explained, the jury returned a verdict finding Walthall guilty of soliciting the murder, not the attempted murder, of five people. The district court did not err in calculating Walthall’s sentence accordingly.  

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.