4/21/26: Helpful case on juror bias

In United States v. Bolandian, --- F.4th ---, No. 25-355 (9th Cir. 2026), the Court vacated Shahriyar Bolandian’s insider-trading conviction and remanded for a new trial in a case in which Bolandian contended that the district court erred by refusing to dismiss a juror for bias after the juror told the judge he was not sure he could be impartial.

Defense counsel agreed that the juror could continue to serve, so the government argued waiver.  The Ninth Circuit rejected that argument, finding forfeiture instead and thus applying plain-error review. 

The government argues that Bolandian’s counsel’s agreement with Juror No. 6’s continued service waived Bolandian’s ability to challenge Juror No. 6 for bias on appeal. Bolandian argues that his claim is reviewable, at minimum, under the plain error standard. The Supreme Court has explained that “[w]aiver is different from forfeiture. Whereas forfeiture is the failure to make the timely assertion of a right, waiver is the intentional relinquishment or abandonment of a known right.”

While forfeited claims are reviewed for plain error, waiver “extinguish[es]” the possibility of an “error” altogether. Olano, 507 U.S. at 733. Thus, “[a]ttention to the distinction between forfeiture and waiver” is of crucial importance, given that it “results in a distinction between plain error appellate review and no appellate review.”  “Whether a particular right is waivable; whether the defendant must participate personally in the waiver; whether certain procedures are required for waiver; and whether the defendant’s choice must be particularly informed or voluntary, all depend on the right at stake.”

We write in this case to explain that the district court’s independent duty to investigate juror bias that emerges during trial is a prerequisite to any knowing waiver of a juror bias claim. The district court’s duty to investigate cannot itself be waived. Because no such investigation took place here, we need not resolve the questions of whether a juror bias claim may be waived by defense counsel, following a proper investigation.

“A court confronted with a colorable claim of juror bias must undertake an investigation of the relevant facts and circumstances.”  

[W]e hold that, at minimum, defense counsel may not waive the district court’s duty to conduct a reasonable inquiry into juror bias that emerges during trial. Because such an investigation would be a prerequisite to a knowing waiver of a juror bias claim, no waiver occurred here.

Proceeding to the merits, we hold that Bolandian is entitled to a new trial. Juror No. 6 came forward to express bias, and the district court impermissibly delegated its responsibility to investigate the juror for bias to the juror himself, who served for the remainder of trial.

4/15/26: California rape under P.C. § 261(a)(2) is an aggravated felony

In United States v. Gonzalez-Reyes, --- F.4th ---, No. 23-3532 (9th Cir. 2026), a divided panel affirmed the district court’s denial of Higinio Gonzalez-Reyes’ motion to dismiss a criminal charge under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States.  

This is a categorical approach case out of the SDCA. 

Here is how the majority started the opinion: 

Angry that his girlfriend might end their relationship, Higinio Gonzalez-Reyes strangled and raped her in view of her two young children. A jury convicted him of rape, false imprisonment by menace or violence, and domestic battery with corporal injury under the California Penal Code. After serving his prison term, he was removed to Mexico under an immigration statutory provision that allows expedited removals of aggravated felons unlawfully residing in the United States. Within three days of his removal, Gonzales-Reyes made his way back to the United States but was arrested near the border. He was criminally charged under 8 U.S.C. § 1326, which bars previously removed aliens from reentering the United States. 

Gonzalez-Reyes now collaterally challenges his criminal case, contending that his earlier expedited removal was invalid. He claims that his state conviction for rape—which was the predicate act for his removal—is not an aggravated felony under the federal immigration statute. And because he was allegedly wrongfully removed, Gonzales-Reyes argues that he cannot be charged with criminal reentry. He is wrong. He was rightly removed from our country: California’s statutory definition of rape is a categorical match with the generic federal definition of rape, and thus his state conviction qualifies as an aggravated felony.

The majority continued:

We hold that California Penal Code § 261(a)(2)—which appears to recognize rape perpetrated through threats of nonphysical force—is a categorical match with the generic federal definition of rape. And that means Gonzales-Reyes’ state rape conviction is a valid predicate offense to qualify him as an aggravated felon under federal law.

By 1996, the definition of rape had become broader across multiple jurisdictions to encompass acts committed through nonphysical force or threats of non-physical coercion. 

The dissent countered: 

To be sure, the facts underlying Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) are deplorable. Nonetheless, Cal. Penal Code § 261(a)(2) is not a categorical match to its federal analogue, rendering Gonzalez-Reyes’ predicate removal order “fundamentally unfair” under Section 1326(d)(3). Gonzalez-Reyes also satisfies § 1326(d)(1) and (d)(2)’s procedural requirements. Accordingly, I would reverse the district court’s denial of Gonzalez-Reyes’ motion to dismiss his indictment and respectfully dissent.

In sum, the majority erred in holding that the generic federal definition of rape in 8 U.S.C. § 1101(a)(43)(A) includes rape by non-physical threats and that Gonzalez-Reyes’ conviction under Cal. Penal Code § 261(a)(2) is a categorical match. 6 As a result, Gonzalez-Reyes was removed on illegitimate grounds, which is enough to demonstrate prejudice—and thus, fundamental unfairness— under Section 1326(d)(3).

4/13/26: Case on attempted online enticement

In United States v. Williams, --- F.4th ---, No. 24-5792 (9th Cir. 2026), the Court affirmed Koby Don Williams’s conviction for attempted online enticement of a minor in violation of 18 U.S.C. § 2422(b), vacated his sentence, and remanded for resentencing.

Williams was a United States Immigration and Customs Enforcement officer who claimed, after arrest, that he was conducting a human trafficking investigation.   On appeal, he challenged the sufficiency of the evidence supporting his conviction and argued that the government failed to preserve and produce material exculpatory evidence. Williams also maintained, and the government agreed, that the district court erroneously applied an obstruction of justice sentence enhancement pursuant to U.S.S.G. § 3C.1.1 without making the required specific findings of falsity, materiality, and willfulness.

Williams challenges the sufficiency of the evidence to support his conviction because, he argues, Section 2422(b) required the government to show that he attempted to “transform or overcome the will of a minor.”

Section 2422(b)’s mens rea “is subjective—it is what is in the mind of the defendant.” We have repeatedly held that “[t]he victim’s willingness to engage in sexual activity is irrelevant.”

Reviewing this claim in the light most favorable to the United States, we conclude that a “rational trier of fact could have found the essential elements of the crime [of attempted enticement] beyond a reasonable doubt,” including the contested element of knowing persuasion, inducement, enticement, or coercion. The evidence is compelling. Pretending to be “Rebecca,” Martinez “told [Williams her] age.” See Meek, 366 F.3d at 720. Williams, in turn, “used money as a negotiating tool to persuade” a person who, again, repeatedly told him that she was underage, to have sex with him. See Eller, 57 F.4th at 1120–21. His negotiation extended to bargaining with “Rebecca” about the cost and kinds of sex acts that the illicit transaction would include. 

A reasonable jury could have found that these actions, taken together, constitute persuasion, inducement, enticement, or coercion. 

Williams’s conduct more than crossed [the] line. His entreaties advanced the criminal purpose of enticement of a minor, and his conduct verified the existence of that purpose. See Goetzke, 494 F.3d at 1235–36. Williams “initiate[d] conversation with” someone representing herself as a minor and “propose[d] a rendezvous to perform” certain sexual acts, which he attended. Id. at 1237. Following up on his discussion of payments, he made a substantial cash withdrawal from a bank and brought the money to the meeting. See Eller, 57 F.4th at 1120–21. He traveled two hours to Othello, Washington, to meet with “Rebecca.” See Meek, 366 F.3d at 720 (“extensive sexual dialog, . . . repeated sexual references, . . . [and] travel to meet the minor” can constitute a substantial step). When he was arrested, Williams had $4,075 in cash, two large bottles of vodka, and generic Viagra in his car. The jury, as a reasonable factfinder, could—and did—conclude that Williams took a substantial step toward completing the offense. 

The four verbs in Section 2422(b), with their overlapping but distinct meanings, reflect Congress’s effort to capture a range of influencing conduct, which is criminal whether the minor was willing or resistant. Whatever intuitive appeal Williams’s interpretation may have in other circumstances, it finds no foothold in the language of Section 2422(b). The jury therefore only needed to find that Williams knowingly attempted to persuade, induce, entice, or coerce “Rebecca” to engage in sexual acts with him, and not that “Rebecca” had any particular mental state, which Williams transformed or overcame.

Williams contends for the first time on appeal that the government’s failure to produce the “missing published decoy advertisement” denied him his right to present a defense because that advertisement was exculpatory and material under Brady and Trombetta. Williams never states whether the “missing published decoy advertisement” is the Warning in Moses Post or the Yours or Mine Post. At oral argument, he stated that he was referring to both. We identify no viable Brady claim regarding either post.

The government agrees with Williams that the district court committed reversible sentencing error because it did not make explicit findings that his testimony was false, material, and willful. The alleged perjury concerns Williams’s assertions that he did not intend to engage in sexual acts with a minor, that he saw the Yours or Mine Post, which included the law enforcement number also listed in the Warning in Moses Post, and that he never believed “Rebecca” was a minor.

Perjury becomes an obstruction of justice when “(1) the defendant gave false testimony, (2) on a material matter, (3) with willful intent.” United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014) (quoting United States v. Garro, 517 F.3d 1163, 1171 (9th Cir. 2008)). In perjury cases like this one, “the express requirement for a finding of ‘willful intent’ means an intent to obstruct justice by lying under oath.” United States v. Ho-Romero, 167 F.4th 1037, 1046 (9th Cir. 2026). The Supreme Court has instructed that “if a defendant objects to a sentence enhancement resulting from her trial testimony, a district court must review the evidence and make independent findings necessary to establish a willful impediment to or obstruction of justice.” United States v. Dunnigan, 507 U.S. 87, 95 (1993). In the absence of those findings, Williams’s sentence must be vacated.

4/7/26: Jet ski case

In United States v. Verhonich, --- F.4th ---, No. 25-1407 (9th Cir. 2026), the Court affirmed the district court’s order upholding Verhonich’s misdemeanor conviction and sentence for violating National Park Service Boating and Water Use Activities regulations in connection with a jet ski accident where Verhonich was the driver and a passenger drowned.

Verhonich contends that evidence related to his failure to wear a life jacket or attach the engine cut-off lanyard to his wrist or body is irrelevant to his guilt or innocence on Count One because the plain meaning of “[o]perating a vessel,” as used in 36 C.F.R. § 3.8(b)(8), “concerns only Mr. Verhonich’s piloting of the jet ski, not external factors like safety gear.”

We are not persuaded that the act of maintaining the functioning of, or engaging, using, and controlling, a jet ski, plainly excludes external factors that impact the nature of the maintenance or use, such as safety gear. In particular, removing the safety lanyard entirely halts the operation of the vessel and therefore is encompassed by “operate,” even under Verhonich’s narrow definition to mean only piloting the jet ski itself.

Accordingly, we hold that the failure to wear a life jacket and the failure to attach a safety lanyard may both be considered in determining whether a vessel has been operated negligently pursuant to 36 C.F.R. § 3.8(b)(8).