7/18/26: Important SCOTUS decisions

Two criminal decisions today from the Supremes. 

First, in Hunter v. United States, 608 U.S. ---, No. 24–1063 (2026), the Court considered whether plea agreement appellate waivers are subject to a general miscarriage of justice exception to enforceability.  Good news, they are. 

Plea agreements between a criminal defendant and the Government often include an appeal waiver—a promise by the defendant not to appeal his conviction or eventual sentence. In this case, we address a dispute about when such a promise is unenforceable in the sentencing context. We principally hold that an agreement not to appeal a sentence is unenforceable when it would result in a miscarriage of justice—meaning, when it would leave in place the kind of egregious error that would bring the judicial system into disrepute.

We thus approve the majority view among the courts of appeals that an appeal waiver is unenforceable when it would result in a miscarriage of justice. That rule, properly understood and applied, sets a high bar: The waiver may be set aside only if the sentence is marred by the kind of egregious error that would bring the judicial system into disrepute. The error must be obvious—not one a judge could reasonably make. And it must be of the type that would undermine public confidence in the judiciary. Sentencing is a complex affair in our criminal justice system, involving for example the detailed calculation of a Sentencing Guidelines range and the mandatory consideration of multiple sentencing factors. In that endeavor, it is unfortunate but inevitable that mistakes will occur. Such standard-fare errors in misapplying sentencing law cannot cancel an appeal waiver. Were they to do so, the utility of waivers in plea negotiations could plummet: such a provision would have less value to the Government, and so might induce fewer concessions to a defendant. And still more to our point, that kind of standard error is not likely to discredit the judiciary’s commitment to law. But some faults in sentencing can. So a high bar is not the same as an insurmountable one. The point of the miscarriage-of-justice limit, as many appellate courts have properly applied it, is to offer a safety valve for extreme cases—a way out of a waiver when the justice system’s basic integrity is at stake. 

The nature of the miscarriage-of-justice limit precludes any attempt to list all the situations in which it will overcome an appeal waiver. Extreme cases, after all, are hard to anticipate before they happen. But a few examples of the kinds of errors we mean—the kind that would bring the judiciary into disrepute—may provide guidance to lower courts. First, a defendant may appeal a sentence exceeding what the relevant statute allows—most commonly, a term of years above the maximum prescribed. See, e.g., Kim, 988 F. 3d, at 810–811, and n. 1; supra, at 10. Second, a defendant may appeal a sentence that is infected with a blatant constitutional error, such as when a judge takes account of a constitutionally impermissible factor (like race) or imposes a constitutionally infirm condition of supervised release (like barring a defendant from becoming pregnant). See, e.g., United States v. Elliott, 264 F. 3d 1171, 1173 (CA10 2001); supra, at 11. And third, a defendant may appeal if his sentence was imposed without “some minimum of civilized procedure” as in, yes, the “twelve orangutans” case—or less extravagantly, one in which the judge refused to hold a hearing consonant with basic principles of law. United States v. Adkins, 743 F. 3d 176, 192–193 (CA7 2014); see United States v. Behrens, 375 U. S. 162, 165–166 (1963). These examples are just examples, not intended to be exclusive, but they serve to illustrate the high bar a defendant must surmount to overcome an appeal waiver.

Justice Gorsuch has a strong concurrence that begins: 

In our times, the jury trial has given way to a conveyor belt of plea bargains. At least some responsibility for that development lies with this Court. When confronted with coercive prosecutorial tactics designed to induce defendants to take plea deals, the Court has often condoned those practices or let them pass in silence. Today, the Court begins to correct course. It rules that prosecutors may not always leverage their plea-bargaining power to induce a defendant to forego the right to contest his sentence on appeal. I agree and write separately to outline how we got here and some of the work still ahead.  

Also of note, there is some helpful language on waiver in general: "Under ordinary litigation principles, a waiver of a right requires some affirmative signal of 'abandonment.' Staying silent—as here, not picking a fight—does not qualify. "

Next, in United States v. Hemani, 608 U.S. ---, No. 24–1234 (2026), the Court considered the constitutionality of 18 U.S.C. § 922(g)(3).  Under its terms, anyone who is an “unlawful user of ” or “addicted to” a “controlled substance” is automatically banned from possessing a gun.  "Ali Hemani uses marijuana a few times a week. That fact alone, the government says, means he is automatically banned from possessing a firearm under federal law. And because Mr. Hemani admits he owns a gun despite this ban, the government now seeks to prosecute him, imprison him for up to 15 years, and disarm him for life. This case poses the question whether the government’s prosecution of Mr. Hemani is consistent with the Second Amendment."  The Court held it was not. 

In many respects, this case is a narrow one. We do not address efforts to ban addicts, see n. 2, supra, or those presently intoxicated, from possessing a firearm. We do not address other prophylactic laws Congress might adopt after determining that users of a particular drug pose a special risk of misusing firearms. See n. 6, supra. We do not address 18 U. S. C. §922(g)(1)’s provision disarming individuals convicted of felonies (often including drug-related ones). Ibid. We do not even address whether the government could bring a prosecution under §922(g)(3) accompanied by individualized proof that the defendant’s use of marijuana (or any other drug) renders him a danger to himself or others. Or proof that a certain drug always renders its users dangerous because of its potency or for some other reason. None of those issues is before us and we do not pass on them either way.

All that is before us is one, if surely ambitious, theory. The government maintains that it may automatically strip Mr. Hemani of his Second Amendment right to possess a firearm because he uses marijuana a few times a week. More than that, because he possessed a gun despite this prohibition, the government insists it may imprison him for up to 15 years and disarm him for life. According to the government, none of this turns on how much marijuana Mr. Hemani uses or what effect it has on him. It makes no difference either if he keeps a firearm only in his home for self-defense, never misuses a gun while intoxicated, and never poses a danger to himself or others as a result of his marijuana use. The only thing the government must show, it says, is that an individual like Mr. Hemani regularly uses any amount of any controlled substance. 

To square that expansive theory with the Second Amendment, the government invites us to draw an analogy between its present regulation and historical laws addressing habitual drunkards. Those laws, the government contends, demonstrate a tradition of firearm regulation consistent with its effort to disarm any regular user of any controlled substance without any further showing. But the government’s analogy fails under every measure it asks us to consider: The historical laws on which it relies targeted different kinds of people, did so for different reasons, and operated in different ways. And faced with all these shortcomings in the government’s submission, we cannot say it has carried its conceded burden of showing its prosecution of Mr. Hemani complies with the Second Amendment.  

6/11/26: SCOTUS reverses the Ninth on venue

In Abouammo v. United States, 608 U.S. ---, No. 25-5146 (2026), a unanimous Supreme Court reversed the Ninth Circuit's judgment and held, "a defendant charged with violating §1519 must be tried in the district where the falsification occurred; he cannot be tried in a different district where the investigation was located."  Here is some of the key language: 

Venue in criminal cases mattered more than might be supposed to the Nation’s Founders.

As a result, the Constitution not once but “twice safeguards the defendant’s venue right.” United States v. Cabrales, 524 U. S. 1, 6 (1998). Article III instructs that “Trial of all Crimes” shall “be held in the State where the said Crimes shall have been committed.” §2, cl. 3. And the Sixth Amendment reinforces that command, entitling criminal defendants to a jury “of the State and district wherein the crime shall have been committed.” 

To implement that constitutional rule—meaning, to decide where the crime was committed—courts generally must determine the location of the offense’s “essential conduct elements.”  

Under that framework, the venue for trying a §1519 offense must be where a document’s falsification happened— which here was in Seattle.

The only prohibited act in that statute is the falsification of a document. Once a person has committed that act (with the requisite intent), he need do nothing more to violate the law.

Contrary to the Ninth Circuit’s view, §1519’s special intent provision does not lead to a different result. This Court has never looked to a statute’s mens rea elements in considering venue. Nor would it make much sense to do so. Take the first (and more typical) of §1519’s mens rea requirements: that the falsification be undertaken “knowingly.” A knowing falsification occurs at the same place as an unknowing falsification—which is to say, at the place of the falsification. The mens rea element thus adds nothing to the conduct-focused analysis. The same is true of §1519’s demand that the falsification be done with the intent to obstruct an investigation. 

Section 1519 prohibits only one act: that of falsifying a document. Because the Government need show nothing else, a §1519 offense is relatively easy to prove. But with that ease comes one cost: Because the Government need show nothing else, its venue options are confined. The trial for falsifying a document must take place where the defendant falsified the document. Here that was in Seattle—meaning in venue terms, the Western District of Washington. The trial should not have occurred in the Northern District of California because no “conduct constituting the offense” happened in that location.  

6/3/26: Second Amendment case

In United States v. DeBorba, --- F.4th ---, No. 23-3304 (9th Cir. 2026), the Court affirmed João Ricardo DeBorba’s convictions, following a bench trial on stipulated facts, for unlawful possession of firearms and ammunition by a noncitizen illegally or unlawfully in the United States, 18 U.S.C. § 922(g)(5)(A); unlawful possession of firearms and ammunition by a person under a domestic violence restraining order, 18 U.S.C. § 922(g)(8); making false statements during purchase of firearms, 18 U.S.C. § 922(a)(6); making a false claim to U.S. citizenship, 18 U.S.C. § 911; and unlawful possession of a firearm silencer under the National Firearms Act (NFA), 26 U.S.C. §§ 5861(d), 5845(a)(7).

In affirming, the Court rejected a host of Second Amendment challenges: 

DeBorba levies challenges to Section 922(g)(5)’s prohibition on firearm possession by noncitizens, the materiality of his false statements and U.S. citizenship claim, Section 922(g)(5)’s prohibition on firearm possession by those subject to a domestic violence restraining order, and the NFA’s regulation of silencers. None are availing. We address each in turn.

Our recent decision in United States v. Vazquez-Ramirez controls DeBorba’s challenges to 18 U.S.C. § 922(g)(5). 163 F.4th 706 (9th Cir. 2026). We held in Vazquez-Ramirez that Section 922’s prohibition on the possession of firearms and ammunition by noncitizens “illegally or unlawfully in the United States,” 18 U.S.C. § 922(g)(5)(A), is “consistent with the nation’s historical tradition of firearm regulation” as required by the Second Amendment.

DeBorba’s materiality challenges to his convictions for making false statements on ATF gun purchase forms and making a false claim to citizenship on his Washington concealed carry application fail because his challenges to Section 922(g)(5) fail. DeBorba concedes that those challenges depend on a holding that the Second Amendment does not allow his disarmament based on citizenship or immigration status. That proposition is foreclosed by Vazquez-Ramirez.

DeBorba presents as-applied challenges to both prongs of Section 922(g)(8)(C). He argues that the restraining orders in his case lack analogous historical traditions of firearm regulation. In United States v. VanDyke, 157 F.4th 1082 (9th Cir. 2025), we drew upon the Supreme Court’s rejection of a 922(g)(8)(C)(i) challenge in Rahimi and rejected a challenge to 922(g)(8)(C)(ii). Together, Rahimi and VanDyke foreclose DeBorba’s arguments regarding Section 922(g)(8)(C)’s unconstitutionality, and he does not demonstrate that his circumstances are meaningfully different from those cases.

DeBorba argues the NFA’s regulation of silencers violates both the Second Amendment’s right to bear arms and the Fifth Amendment’s prohibition on vague criminal laws. Both challenges lack merit.

As we have previously explained, “optional accessories” to firearms—such as gun slings, scopes, and, importantly, silencers—fall outside of the Second Amendment’s plain text because they are “accoutrements” and not arms. Id. DeBorba’s challenge thus fails at step one of the Bruen analysis.

DeBorba’s challenge also cannot overcome the presumptive constitutionality of the NFA’s shall-issue licensing regime.

As the Fifth Circuit explained, there is “no reason to doubt” that the NFA’s licensing requirements serve to “ensure only that those bearing arms in the jurisdiction are, in fact, ‘law-abiding, responsible citizens.’” We agree and so hold. 

DeBorba also argues that the NFA’s regulation of “any silencer,” 26 U.S.C. § 5845(a)(7)—defined as “any device for silencing, muffling, or diminishing the report of a portable firearm,” 18 U.S.C. § 921(a)(25)—is unconstitutionally vague. He invokes the Fifth Amendment’s protection against any “criminal law so vague that it fails to give ordinary people fair notice of the conduct it punishes, or so standardless that it invites arbitrary enforcement.

As applied, DeBorba’s vagueness challenge to the NFA plainly fails for two reasons. First, the stipulated facts, taken together, render DeBorba guilty of the charge under Section 5861(d) and foreclose his challenge. 

Second, DeBorba’s as-applied challenge falls short when one considers the device’s design. As the district court explained, the item was “a cylindrical device with no manufacturer marking and no serial number” in which “the front endcap of the device contained a hole to allow passage of a bullet, and the rear endcap also had a hole in its center that was internally threaded to facilitate attachment to a firearm barrel.” When the ATF attached DeBorba’s device to a portable firearm and fired the gun, the device “reduced sound reporting by at least twelve decibels.” Id. The NFA’s inclusion of any device “for silencing, muffling, or diminishing the report of a portable firearm,” 18 U.S.C. § 921(a)(25), provided “fair notice” to DeBorba that his device falls within the Act’s ambit. 

6/2/26: En banc civil forfeiture decision

In United States v. $1,106,775 in U.S. Currency, --- F.4th ---, No. 22-16499 (9th Cir. 2026) (en banc), the Court reversed the district court’s order striking Oak Porcelli’s claim for currency that was the subject of the government’s civil forfeiture action, and remanded for further proceedings.

When someone files a claim for property that is the subject of a civil forfeiture action, the government “may serve special interrogatories limited to the claimant’s identity and relationship to the defendant property without the court’s leave at any time after the claim is filed and before discovery is closed.” Fed. R. Civ. P. Supp. R. G(6). The district court in this case struck a claimant’s claim for money seized from a vehicle he was driving, reasoning that he had failed to provide sufficient interrogatory responses concerning his standing to seek the funds. We hold that the district court abused its discretion in issuing this case-ending sanction at the inception of the civil forfeiture action. We reverse and remand for further proceedings.

That Porcelli was required to respond to the Rule G(6) interrogatories does not mean that civil forfeiture claims like his—where the property was indisputably taken from him—should always be litigated through the vehicle of case-opening Rule G(6) discovery disputes. The Rules do not anticipate that all civil forfeiture litigation will be resolved through Rule G(6).

Yet, in this case, the civil forfeiture proceeding was over before it began, even though Porcelli’s interrogatory responses—which the government never rebutted—established his standing at this stage of the proceedings.

For this stage of the proceedings, some of the government’s Rule G(6) requests were also excessive. For example, Interrogatory 6 required “[a] detailed description of the circumstances of every transaction by which you acquired or obtained each interest in the property, including every name, address (residential and business), and telephone number (residential, cellular, and business) of each witness to such transaction.” And Interrogatory 7 called for Porcelli to “[d]escribe in detail every document evidencing, recording, facilitating, or otherwise relating to each transaction identified in response to Interrogatory 6.

Porcelli surely could be required to respond to these two interrogatories to some extent at an early stage in the case, and he eventually did so. But at least when sought at the outset of the civil forfeiture proceeding, the level of detail the government insisted on here in its motion for terminating sanctions went beyond what Rule G(6) envisions.

In this case, Porcelli came forward with a legally sufficient claim of standing and interrogatory responses that provided the government with a sufficient basis for conducting further investigation into his claimed ownership of the money. In these circumstances, and when Porcelli was claiming money that was indisputably seized from his possession, it was error for the district court to strike his claim when it did based on the alleged insufficiency of his Rule G(6) responses.