9/14/26: Two decisions today

First, in United States v. Tovar-Duran, --- F.4th ---, No. 24-2328 (9th Cir. 2026), the Court reversed a district judge’s order affirming Jaime Tovar-Duran’s conviction, following a bench trial before a magistrate judge, for improper entry into the United States as a non-citizen; conditionally vacated the conviction; and remanded for further proceedings.

Mr. Tovar-Duran argues that the magistrate judge improperly determined that the government met its obligations under Brady v. Maryland, 373 U.S. 83 (1963), and Federal Rule of Criminal Procedure 16. He also argues that the magistrate judge improperly admitted hearsay statements included in warrants of removal and written warnings to prove Mr. Tovar-Duran’s non-citizenship. We agree. 

We hold that when a defendant shows that the government may be in possession of undisclosed Brady and Rule 16 evidence and requests further discovery, courts must require the government to review evidence in its possession and disclose the Brady and Rule 16 material. We also clarify that all removal documents are not per se admissible as public records. Because, like here, some removal documents contain multiple levels of hearsay, courts must examine whether the specific statements within the documents are admissible.

The magistrate judge abused her discretion by denying Mr. Tovar-Duran’s request for additional evidence of the witnesses’ membership and activity in the Facebook group because the government was obligated to disclose the evidence under Brady and Rule 16. And because the government failed to disclose this evidence, we cannot yet determine whether its failure to disclose it prejudiced Mr. Tovar-Duran. We thus must vacate his conviction and remand for further proceedings on “whether the government’s documents in fact contain, or would have led to, information that might have altered the verdict.”

Mr. Tovar-Duran argues that Brady and Rule 16 required the government to disclose which witnesses were involved in the “I’m 10-15” group before trial and to provide documentation of their membership and activity in the group. We agree.

To start, evidence of the witnesses’ involvement in the Facebook group is Brady material because Mr. Tovar-Duran could have used it to impeach the witnesses’ credibility. In light of the derogatory material posted in the group, the witnesses’ activity on the page could be strong evidence of bias against noncitizens. Similarly, the evidence falls under Rule 16(a)(1)(E)(i), which requires the government to turn over documents “material to preparing the defense.” Materiality is a low threshold, and any document that “would have helped” the defendant prepare his defense satisfies the standard. United States v. Hernandez-Meza, 720 F.3d 760, 768 (9th Cir. 2013). Here, at a minimum, evidence of the witnesses’ involvement in the Facebook group would have helped Mr. Tovar-Duran “impeach the . . . agent at trial.” Doe, 705 F.3d at 1151. 

The government argues that the magistrate judge did not abuse her discretion by denying the discovery request because the “prosecution team was not aware of and had no additional information about the agents’ ‘10-15’ activity in its possession.” But Mr. Tovar-Duran pointed to “facts which would tend to show that the Government is in possession of information helpful to the defense.” See Doe, 705 F.3d at 1150 (citation modified). For example, the government originally represented that none of its witnesses were in the group and—for an unexplained reason—later confirmed that two witnesses were in the group. The government’s contradictory disclosures alone suggest that it is in possession of evidence about the witnesses’ involvement in the Facebook page and, thus, “helpful to the defense.”

Without knowing whether and to what extent additional evidence of the witnesses’ involvement in the Facebook group exists, we cannot determine whether such evidence would have undermined the witnesses’ credibility and impeached their testimony. We thus have no way to determine whether the evidence “might have altered the verdict.”

At bottom, the magistrate judge “committed a clear error of judgment” by proceeding to trial before ordering the government to review the evidence in its “possession, custody, or control,” and produce any additional Rule 16 evidence. Doe, 705 F.3d at 1150 (citation modified). This was an abuse of discretion. And the government’s failure to produce the evidence likewise constituted a Brady violation. We thus reverse the district court, conditionally vacate Mr. Tovar-Duran’s conviction, and remand for further proceedings.

We are now left with Mr. Tovar-Duran’s hearsay claims. Mr. Tovar-Duran argues that the magistrate judge abused her discretion by admitting the prior warrants of removal and written warnings to prove Mr. Tovar-Duran’s citizenship status under the public records exception to hearsay. 

When a public record contains additional layers of hearsay statements, each statement must fall under a hearsay exception to be admissible. Fed. R. Evid. 805. We have explained that the “mere fact that a document qualifies as a public record . . . does not ipso facto overcome the hearsay objection unless the document relates to an event to which the author could himself testify.” United States v. Chu Kong Yin, 935 F.2d 990, 999 (9th Cir. 1991) (citation modified). This is because “the public documents exception to the hearsay rule is only the substitute for the appearance of the public official who made the record.” Id. (citation modified). 

Under a straightforward application of these rules, the removal documents contain inadmissible hearsay statements. 

Here, the government relied on these documents, which contain multiple layers of hearsay, to make that showing. Each document references a prior removal order issued by “a designated official” or a finding that Mr. Tovar-Duran “reentered the United States illegally.” And the magistrate judge relied on the truth of the statements—that Mr. TovarDuran was subject to a final order of removal by a designated official or had been found to have reentered the United States illegally—to conclude that Mr. Tovar-Duran is not a United States citizen. But the government failed to show that any of the forms were prepared by someone with firsthand knowledge of the removal order or finding of illegal reentry. Cf. Fed. R. Evid. 805. The government thus relied on hearsay statements to prove alienage without providing any exception under which they are admissible.

In sum, the magistrate judge did not examine the admissibility of the specific statements pertaining to Mr. Tovar-Duran’s citizenship status and instead generally concluded that the warrants of removal and written warnings were admissible. This was an abuse of discretion.

This error was not harmless.  It is more probable than not that admitting the removal documents materially affected the verdict. Had these statements been excluded as hearsay, the record would have contained minimal evidence of Mr. Tovar-Duran’s citizenship status, given that at least two of the witnesses’ testimony may be tainted by Brady and Rule 16 violations.  

Next, in United States v. Troiano, --- F.4th ---, No. 24-6621 (9th Cir. 2026), the Court affirmed the district court’s denial of James Troiano’s motion for compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i).

Defendant James Troiano appeals the district court’s denial of his motion for “compassionate release” under 18 U.S.C. § 3582(c)(1)(A)(i). He argues that, because of the combined effect of multiple nonretroactive changes to the Sentencing Guidelines enacted after he was sentenced, he is serving “an unusually long sentence” that is “unreasonably disproportionate” to the sentence he would receive if sentenced today, and that this disparity is an “extraordinary and compelling reason” warranting a sentence reduction and attendant compassionate release.

We conclude that the Commission acted within its statutory authority and that the policy statement is valid. Troiano also argues that, even if the policy statement validly precludes consideration of a single nonretroactive amendment to the Guidelines, it does not prohibit courts from considering the combined effect of multiple nonretroactive amendments. We conclude that the policy statement bars consideration of any nonretroactive amendments, alone or in combination. Therefore, we affirm

In sum, we conclude that the Commission may, within the scope of its statutory authority under § 994(t), exclude a nonretroactive Guidelines amendment from the definition of “extraordinary and compelling reasons for sentence reduction.” Therefore, subsections (b)(6) and (c) of the § 1B1.13 Policy Statement validly bar district courts from considering nonretroactive changes to the Sentencing Guidelines in deciding whether there are “extraordinary and compelling reasons for [a] sentence reduction.” 28 U.S.C. § 994(t). 

If the Commission intended to bar consideration of a single nonretroactive amendment to the Guidelines but allow consideration of the combined effect of multiple nonretroactive amendments, the Commission likely would have used more specific language to make that clear. We therefore conclude that the Policy Statement prohibits consideration of the combined effect of multiple nonretroactive amendments to the Guidelines.

We conclude that subsections (b)(6) and (c) of the § 1B1.13 Policy Statement validly prevent district courts from considering nonretroactive changes to the Sentencing Guidelines in deciding whether there are “extraordinary and compelling reasons for [a] sentence reduction,” 28 U.S.C. § 994(t), and that restriction is binding on district courts considering motions for compassionate release. We also conclude that the combined effect of multiple nonretroactive amendments to the Sentencing Guidelines is not an extraordinary and compelling reason for compassionate release under that Policy Statement. Accordingly, we affirm the district court’s denial of Troiano’s motion for compassionate release on that ground.