12/19/25: Federal murder case

In United States v. Justus, --- F.4th ---, No. 24-1641 (9th Cir. 2025), the Court affirmed Robert Alvin Justus, Jr.’s convictions for aiding and abetting the murder of a person assisting a federal officer and aiding and abetting attempted murder of a person assisting a federal officer, in violation of 18 U.S.C. §§ 1114(1), 1114(3), 1111, and 1112.

During a Goerge Floyd protest in 2020, Justus drove a van while Steven Carrillo fired nineteen rounds from an assault rifle at two Protective Security Officers on duty at a federal courthouse. One officer died, and the other was permanently disabled.

At trial, the government presented 73 exhibits from Justus’s social media activity to support its theory that Justus and Carrillo pre-planned the attack as part of their anti-government ideology.

Prior to trial, the district court reviewed each piece of social media evidence and extensively questioned the government on its intended use.  On appeal, Justus argued that the district court erred in admitting this social media evidence because it was irrelevant, constituted improper character evidence, and was highly prejudicial.

We conclude that Justus’s social media posts and communications were relevant to the crime charged. First, Justus’s advocacy for violence and physical attacks of law enforcement and the courts made it more probable that he intentionally aided Carrillo in the shooting of the officers. Second, the posts in which Justus used “Boogaloo” language supported the government’s theory that Justus participated in the attack to further the Boogaloo movement."

Because the social media evidence tended to make Justus’s intent to commit the crime more probable, the district court did not abuse its discretion in finding the evidence relevant and admissible under Rule 401." 

Justus also argues that the social media posts constituted improper character evidence because the government used the evidence to “inform the jury of Justus’s ‘beliefs.’” See Fed. R. Evid. 404. 

The district court did not abuse its discretion in finding that the evidence was not impermissible character evidence because it established Justus’s growing animosity toward the federal government and desire to commit violence against government actors, and not a specific character trait or criminal propensity. Further, the evidence was not offered to establish that Justus acted in accordance with a specific character trait. 

Although the district court did not explicitly discuss Rule 403 in its written order regarding the social media evidence, the record shows that it engaged in this analysis. The district court extensively reviewed the probative value of the evidence in the context of the parties’ Rule 403-related arguments and explicitly acknowledged Justus’s argument that the evidence “would be unfairly prejudicial if admitted” when making its ruling. Further, the district court referenced Rule 403 in its written order on the other motions in limine. Finally, the court explicitly weighed the probative value and prejudice of similar evidence found on Justus’s phone during trial. Thus, the record clearly shows that the district court considered the potential prejudice of the social media evidence and implicitly conducted a Rule 403 analysis.

Finally, the district court did not abuse its discretion in admitting the social media evidence under Rule 403. The government admitted seventy-three posts and conversations, but they were not redundant. Many of the posts focused on separate issues related to Justus’s intent, including his involvement with the Boogaloo movement, his desire to harm government officials and the courts, and his intent to take specific action and make or use weapons. Additionally, the numerous posts supported the government’s theory that Justus’s statements and animosity toward law enforcement escalated over time. The evidence was therefore relevant and admissible. 

The Court also discussed and rejected several other arguments. 

12/17/25: Deciding Service officers in administrative removal proceedings are not inferior officers subject to the Appointments Clause

In United States v. Avalos, --- F.4th ---, No. 23-3944 (9th Cir. 2025), the Court affirmed the district court’s denial of Jorge Alejandro Avalos’s motion to dismiss an indictment charging him with illegal reentry under 8 U.S.C. § 1326.

The issue was whether Avalos's underlyng administrative removal proceedings were fundamentally unfair because the deciding Service officer who issued the final administrative removal order was an “inferior Officer” under the Appointments Clause of the U.S. Constitution and had not been properly appointed.

At issue on appeal is whether deciding Service officers in administrative removal proceedings are “inferior Officers” subject to the requirements of the Appointments Clause of the United States Constitution. U.S. Const., art. II, § 2, cl. 2; 8 C.F.R. § 238.1. We hold that they are not.

Avalos’s primary argument is that his underlying administrative removal proceeding resulted in the entry of a deportation order that was “fundamentally unfair” under § 1326(d)(3) because the deciding Service officer in that proceeding was an inferior officer who was not properly appointed under the Appointments Clause. The Appointments Clause provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” U.S. Const., art. II, § 2, cl. 2.  While officers must be appointed in accordance with the Appointments Clause, the Constitution “cares not a whit” about who hires non-officer employees to their positions. 

The Supreme Court has identified two considerations for distinguishing between officers and employees. First, officers occupy “continuing position[s] established by law.” Id. (citing United States v. Germaine, 99 U.S. 508, 511–12 (1879)). Second, officers exercise “significant authority pursuant to the laws of the United States.” Id. (quoting Buckley v. Valeo, 424 U.S. 1, 126 (1976) (per curiam)). This inquiry “focuse[s] on the extent of power any individual wields in carrying out his assigned functions.” Id.

We turn to the two considerations for determining whether individuals are officers or employees: (1) whether the individual holds a continuing position established by law, and (2) whether the individual exercises significant authority pursuant to the laws of the United States. Lucia, 585 U.S. at 245. Considering each in turn, we hold that deciding Service officers neither occupy a continuing position nor exercise significant authority, and therefore are not inferior officers. 

12/10/25: possessing or transferring a machinegun, 18 U.S.C. § 922(o)

In United States v. Kittson, --- F.4th ---, No. 23-4132 (9th Cir. 2025), a divided Court affirmed Daniel Matthew Kittson’s conviction for possessing or transferring a machinegun in violation of 18 U.S.C. § 922(o).

Kittson was arrested as part of a sting operation.  He argued that section 922(o) was inapplicable because he transferred a machinegun to a federal agent.  The majority rejected his argument. 

Relevant here, § 922(o)(1) provides that “it shall be unlawful for any person to transfer or possess a machinegun.” But the prohibition does not apply to “a transfer to or by, or possession by or under the authority of, the United States or any department or agency thereof or a State, or a department, agency, or political subdivision thereof.” § 922(o)(2)(A). 

The majority held that the exceptions in § 922(o)(2) are “extremely limited” (citation omitted)), and only apply to transfers “authorized by the government for the benefit of federal, state, or local government entities.”  In short, "the involvement of an undercover agent does not shield a defendant from liability."  (The dissent disagreed on this point). 

The majority further held that the statute was not unconstitutional under the Second Amendment because “machine guns are ‘dangerous and unusual weapons’ that are unprotected by the Second Amendment.”

12/1/25: VICAR Case

In United States v. Dencklau, --- F.4th ---, No. 22-30068 (9th Cir. 2025), the Court affirmed Mark Leroy Dencklau’s and Chad Leroy Erickson’s convictions and life sentences for offenses arising from the kidnapping and murder of a former fellow member of the Gypsy Joker Motorcycle Club (GJMC).

For the most part, the opinion does not break new ground, but it does answer the question of whether a VICAR indictment must also include the elements of the predicate violent offenses.  The Court held it does not. 

Defendants-Appellants Mark Leroy Dencklau and Chad Leroy Erickson appeal their convictions and sentences of life imprisonment for murder in violation of the Violent Crimes in Aid of Racketeering statute (VICAR), 18 U.S.C. § 1959(a)(1); VICAR kidnapping resulting in death in violation of 18 U.S.C. § 1959(a)(1); kidnapping resulting in death in violation of 18 U.S.C. § 1201(a)(1); and conspiracy to commit kidnapping resulting in death, in violation of 18 U.S.C. §§ 1201(a)(1) and (c). Dencklau was also convicted of racketeering conspiracy, in violation of 18 U.S.C. § 1962(d).

Our circuit has not yet ruled directly on whether a VICAR indictment must also include the elements of the predicate violent offenses. We previously have held that an indictment that tracks the charging statute is generally sufficient. See United States v. Alsop, 479 F.2d 65, 66 (9th Cir. 1973). And in United States v. Fernandez, we confirmed that an indictment that “expressly alleged the required elements” of a VICAR violation itself was “sufficient,” even where it did not allege the elements of the predicate offenses. 388 F.3d 1199, 1220 (9th Cir. 2004), modified, 425 F.3d 1248 (9th Cir. 2005). More directly, the Second Circuit has instructed that “only a generic definition of an underlying state crime is required in a RICO indictment, as distinguished from the elements of the penal codes of the various states where acts of racketeering occurred.”

We are persuaded by the reasoning of our sister circuits in holding that where a VICAR indictment tracks the VICAR statute’s language, it sufficiently informs the defendant of his charge, even if it does not also enumerate the elements of the predicate state law crime, and so hold. 

The opinion also briefly addresses and rejects a host of other evidentiary and instructional claims.  If you have a gang RICO or VICAR case heading to trial, it is worth reading.