2/25/25: Helpful SCOTUS Napue decision

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

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

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

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

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

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

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

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

2/24/25: Theranos and the Sycamore Fire

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

This case arises from the Theranos scandal.  

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

2/19/25: Case on nondelegation doctrine

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

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

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

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

2/10/25: Categorical approach and concurrent recommendations

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

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

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

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

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

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