10/20/26: Harmless error analysis applies when a court fails to submit a forfeiture question to the jury

In United States v. Mumma, --- F.4th ---, No. 24-6987 (9th Cir. 2026), the Court (1) affirmed the district court’s denial of Mumma’s motion to dismiss the indictment; (2) affirmed the district court’s “personal forfeiture money judgment” in the amount of $160,000, which represented the proceeds from the sale of Mumma’s house where he committed the offense; and (3) vacated the district court’s restitution order and remanded to the district court to recalculate the restitution amount.

Defendant Todd Mumma appeals his conviction and sentence for sexual exploitation of a minor in violation of 18 U.S.C. § 2251(a). After a jury found Mumma guilty of this offense, the district court imposed a 252-month prison term and ordered Mumma to pay restitution to the victim, M.V., in the amount of $71,200. The district court also entered a “personal forfeiture money judgment” against Mumma in the amount of $160,000, which represented the proceeds from the sale of Mumma’s house, where he had committed the offense. On appeal, we reject Mumma’s challenge to the adequacy of the indictment, and we further conclude that any error by the district court in failing to ask the parties whether the forfeitability of Mumma’s house should be submitted to the jury was harmless. We conclude, however, that at least one of Mumma’s challenges to the calculation of the restitution award is meritorious, and we therefore vacate the restitution order and remand to the district court to recalculate the amount of restitution in accordance with our instructions. We therefore affirm in part, vacate in part, and remand.

For several years, Defendant Todd Mumma resided with his then-wife and his two stepdaughters in a home in Fresno, California. After being contacted by a private investigator who turned over a memory card showing Mumma’s older stepdaughter, M.V., being surreptitiously recorded in her bedroom as she undressed, law enforcement agents obtained a warrant to search Mumma’s home. The search, which occurred on May 9, 2020, revealed that an iPhone-style charger containing a hidden camera was plugged into the wall under a table in M.V.’s bedroom.

Mumma argues that the district court erred in denying his motion to dismiss the indictment. According to Mumma, the indictment provided insufficient notice, because its language was too barebones and failed to allege any specific facts that would establish the elements of the charged offense. Reviewing the sufficiency of an indictment de novo, see we reject this contention. 

This case [] falls within the general rule that “an indictment parroting the language of a federal criminal statute is often sufficient.”

Mumma also contends that the district court committed reversible error by failing to inquire, as assertedly required by Federal Rule of Criminal Procedure 32.2(b)(5)(A), whether the parties wanted the jury to determine the forfeitability of Mumma’s house. We disagree and affirm the district court’s forfeiture order.

We ultimately need not decide whether Mumma is correct in contending (1) that he had a right to a jury trial on the issue of the forfeitability of Mumma’s house and (2) that the district court erred in failing sua sponte to inquire whether the parties wanted the jury to determine that issue. As we explain in the next section, even assuming arguendo that Mumma is correct on these points, we conclude that any error was harmless, although our reasoning differs from that given by the district court and the Government.

[W]e conclude that, even assuming that Mumma would have chosen a jury if asked and that the asserted violation of the court’s rule-based obligation to inquire therefore had the effect of denying Mumma his asserted right to a jury trial under the rule, any error may still be harmless. The resulting scenario, in our view, is directly analogous to the situation in which the court fails to include an element of an offense in the jury instructions, such that the jury never makes a finding as to that element. The Supreme Court has squarely held that such errors are amenable to harmless error analysis, see Neder v. United States, 527 U.S. 1 (1999), and its reasoning is fully applicable here.

We therefore apply Neder’s harmless error standard, but with one important qualification that takes account of the differing burden-of-proof standards that apply in the forfeiture context. For cases in which the indictment seeks forfeiture, we have held that, once guilt for the underlying offense is established beyond a reasonable doubt, the Government need only “prove, by a preponderance of the evidence, a nexus between the property and the crime.” Mancuso, 718 F.3d at 799 (citation omitted). Moreover, because there is no constitutional right to a jury determination of nexus, and any error in failing to submit that element to the jury entails only a violation of a rule and not a constitutional violation, the “Chapman standard” for evaluating the harmlessness of constitutional errors, which asks whether the error “was harmless beyond a reasonable doubt,” Fry v. Pliler, 551 U.S. 112, 116 (2007) (quoting Chapman v. California, 386 U.S. 18, 24 (1967)), does not apply. Instead, we apply “the more forgiving standard of review” for “nonconstitutional errors on direct appeal from federal convictions.” Id. Under that standard, an error is harmless if the Government has shown that “it is more probable than not that the error did not materially affect the verdict.” 

Because it was uncontested and incontestable that, if Mumma committed the offense, he used his home to do so, we have little difficulty holding that it is more probable than not that any rational jury would have found the nexus requirement to be satisfied as to Mumma’s home. Any violation of Rule 32.2 with respect to whether to submit the nexus issue to the jury was therefore harmless in this case. 

Mumma also challenges the district court’s determination of the amount of restitution.

Mumma contends, and the Government concedes, that the district court made an apparent mathematical error in totaling up the components of the restitutionary requests made by the victim, M.V., because the district court’s total is $2,500 higher than the sum of those component parts. 

As Mumma notes, the victim has a pending civil suit against him, and a ruling from this court that the amount of restitution was overpaid by $2,500 would give him the ability to seek an offset against any damages that the victim might recover in that civil action. That possibility is enough to save this issue from mootness, even if the occurrence of that eventuality “is not assured.” Id. Accordingly, we must, at a minimum, remand the restitution order to the district court with instructions to correct this mathematical error. 

For the foregoing reasons, we vacate the district court’s restitution order and remand with instructions to eliminate the excess $2,500 that was erroneously included and to recalculate, as necessary, the victim’s temporary housing expenses covered by the order. In all other respects, we affirm the district court’s judgment and sentence, including the order of forfeiture. 

10/16/26: three nautical miles & replacing a juror during deliberations

In United States v. Lee, --- F.4th ---, No. 23-1814 (9th Cir. 2026), the Court vacated Hoang Xuan “Wayne” Le’s convictions for first-degree murder, conspiracy to commit murder, and possession of a firearm in furtherance of murder, and remanded for further proceedings.

After local fishermen alerted law enforcement that they had encountered a corpse floating in the Pacific Ocean, the Oceanside Police Department recovered the body of Tri Minh “James” Dao. Dao had drowned after suffering two gunshot wounds and blunt force trauma to the head. A jury convicted Defendant Hoang Xuan “Wayne” Le of first-degree murder, conspiracy to commit murder, and possession of a firearm in furtherance of murder, for his role in Dao’s death, under 18 U.S.C. § 1111, § 1117, and § 924(c), respectively. Le now appeals his convictions. He first argues that the federal government lacked jurisdiction to prosecute him because Dao’s death occurred within three nautical miles off the coast of California, an area that he contends is within the state’s exclusive jurisdiction. He further argues that, even if the federal government did have jurisdiction to prosecute him, a new trial is warranted because the district court violated the Sixth Amendment when it replaced a juror during deliberations for reasons stemming from the juror’s views on the merits of the case. 

We hold that, under section 901(a) of the Antiterrorism and Effective Death Penalty Act of 1996, the special maritime and territorial jurisdiction of the United States includes the first three nautical miles from the shoreline. Nonetheless, we vacate Le’s convictions because the replacement of the juror occurred for reasons stemming from the juror’s views on the merits and therefore violated unwaivable Sixth Amendment protections. 

Given the cellphone location data from the boating trip, the Government conceded that “it cannot prove beyond a reasonable doubt that the alleged murder was committed more than three nautical miles from the California shore.” For that reason, the parties stipulated that, if the first three nautical miles from the shoreline are outside the special maritime and territorial jurisdiction of the United States, the murder, conspiracy to commit murder, and firearm charges “should be dismissed for lack of jurisdiction.”

In relevant part, 18 U.S.C. § 7 defines the “special maritime and territorial jurisdiction of the United States” to include “[t]he high seas” and “any other waters within the admiralty and maritime jurisdiction of the United States and out of the jurisdiction of any particular State.” 18 U.S.C. § 7(1). Several crimes enumerated in Title 18 of the U.S. Code reference the “special maritime and territorial jurisdiction of the United States.”

In 1988, President Ronald Reagan expanded the territorial sea of the United States beyond three nautical miles from the shoreline. He signed a proclamation that stated: “The territorial sea of the United States henceforth extends to 12 nautical miles from the baselines of the United States determined in accordance with international law.”

Less than a decade later, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat. 1214, 1317 (“AEDPA”). Section 901 of AEDPA is titled “Expansion of Territorial Sea” and subsection (a) states:

TERRITORIAL SEA EXTENDING TO TWELVE MILES INCLUDED IN SPECIAL MARITIME AND TERRITORIAL JURISDICTION.—The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.

Section 901(a) proclaims that, “for purposes of Federal criminal jurisdiction,” “all the territorial sea of the United States” is “within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.” AEDPA § 901(a) (emphasis added). By using the word “all,” the plain text of the statute brings the entire territorial sea designated by Proclamation 5928 within the special maritime and territorial jurisdiction, at least for purposes of Title 18 crimes. 

The territorial sea of the United States is [] defined as the first twelve nautical miles off the shoreline. That definition was, in turn, incorporated by the language of section 901(a) of AEDPA: “The Congress declares that all the territorial sea of the United States, as defined by Presidential Proclamation 5928 of December 27, 1988, for purposes of Federal criminal jurisdiction is part of the United States, subject to its sovereignty, and is within the special maritime and territorial jurisdiction of the United States for the purposes of title 18, United States Code.” AEDPA § 901(a).

Contrary to Le’s assertions, our interpretation does not fail to give effect to the words “out of the jurisdiction of any particular State” in 18 U.S.C. § 7(1). Those words mean that 18 U.S.C. § 7(1) does not grant authority to the federal government to prosecute crimes within the first three nautical miles from shore—because that area is within the states’ jurisdictions. But AEDPA provides federal authority over some crimes committed in that area—at least those enumerated in Title 18 that require that the crime have occurred within the special maritime and territorial jurisdiction of the United States. By its express language, AEDPA applies only to crimes defined in Title 18, but there are also crimes defined elsewhere in the U.S. Code that are not affected by AEDPA given their placement outside Title 18.

Having determined that the Government had jurisdiction to bring this prosecution, we turn to the juror removal issue.

Dismissal of a juror is appropriate only if the available evidence is “sufficient to leave one firmly convinced that the impetus for a juror’s dismissal is unrelated to [his or her] position on the merits.” Symington, 195 F.3d at 1087 n.5. The trial record here leaves us far from “firmly convinced.” Id. BJR directly confirmed, in response to the district court’s question, that her mental health crisis was “based on pressure from other jurors to reach a specific verdict.” That statement reflects a causal connection between the jury pressure and BJR’s mental health deterioration. The rest of the record further bolsters the conclusion that BJR’s removal stemmed from her view of the merits. 

[W]here, like here, the record reveals that a juror’s mental health crisis stems from her disagreement with other jurors about the merits of the case, those mental health concerns cannot be treated as an independent basis for removing the juror. If a juror whose mental health deteriorated as a direct consequence of being pressured to change her vote could be dismissed on that basis, that would create a dangerous mechanism for circumventing the unanimity guarantee. Jurors could then pressure a holdout until her resulting distress provided the apparent “independent” ground for her removal.  

We recognize that the district court faced a genuinely difficult situation in supervising a juror in evident distress. It is undisputed that BJR could not have continued serving on the jury. And it is clear the district court was trying to be as fair as possible. But faced with a juror whose distress both stemmed from her view of the prosecution’s case and was severe enough to preclude her from continuing to deliberate, our caselaw instructs that the only constitutionally permissible path forward was to declare a mistrial.

To determine whether the error affected Le’s substantial rights, we ask whether there is “a reasonable probability that, but for the error, the result of the proceeding would have been different.” Greer v. United States, 593 U.S. 503, 507– 08 (2021) (citation omitted). That standard is satisfied here.

We now turn to the final prong of the plain error standard—whether letting the error stand would seriously undermine confidence in the judicial process. Few things could more seriously affect the fairness, integrity, and public reputation of judicial proceedings than removing a juror because she does not agree with other jurors on whether the defendant should be found guilty. See id. at 1169. We cannot permit jurors to accomplish indirectly what the Sixth Amendment plainly forbids them from accomplishing directly.

The Government contends that because Le was aware of his right to a unanimous jury and intentionally did not invoke it at the appropriate time, he waived his ability to raise this issue on appeal.  But some rights cannot be waived, and some waivers cannot be enforced. 

Simply put, removing a juror based on her view of the merits violates the same core protections as the unwaivable errors in Lopez and Ullah. We thus conclude that a defendant cannot waive a challenge to a juror’s removal when the removal violates Symington and runs afoul the Sixth Amendment’s unanimity guarantee. In light of our holding that the record reflects a reasonable possibility that BJR’s removal stemmed from her views on the merits and thus violated Symington, Le’s consent to her removal does not foreclose our review of the Sixth Amendment error.  

10/13/26: The law on 18 U.S.C. § 922(g)(3) is still the law

In United States v. Youngblood, --- F.4th ---, No. 24-7629 (9th Cir. 2026), the Court affirmed Dylan Youngblood’s conviction under 18 U.S.C. § 922(g)(3) for possessing a firearm while being an unlawful user of or addicted to a controlled substance.  Basically, the Opinion says the law on § 922(g)(3) is still the law. 

Following his entry of a conditional guilty plea, Dylan Youngblood appeals the district court’s denial of his motion to dismiss his indictment for possessing a firearm while being an unlawful user of or addicted to a controlled substance in violation of 18 U.S.C. § 922(g)(3). Youngblood contends that § 922(g)(3) is both facially unconstitutional and unconstitutional as applied to him under the Second Amendment. 

After Youngblood filed his Opening Brief and before the government filed its Answering Brief, our court held that § 922(g)(3) is facially constitutional. United States v. Stennerson, 150 F.4th 1276, 1285 (9th Cir. 2025). Then, after Youngblood filed his Reply Brief, the Supreme Court ruled that § 922(g)(3) was unconstitutional as applied to an individual who “used marijuana ‘about every other day.’” United States v. Hemani, 608 U.S. 772, 778, 795 (2026). Because Stennerson remains binding on this court post-Hemani and Youngblood has waived his as-applied challenge, we affirm.

10/5/26: Case on tolling orders under 18 U.S.C. § 3292

In United States v. So, --- F.4th ---, No. 24-5085 (9th Cir. 2026), a divided Court affirmed Hyoung Nam “Brian” So’s conviction on one count of conspiracy to commit federal funds bribery, in violation of 18 U.S.C. § 371.  The majority held that the district court did not err in denying So’s motion to dismiss the indictment as untimely. 

The offense of conspiracy has a five-year statute of limitations. See 18 U.S.C. §§ 371, 3282(a). The limitations period for conspiracy “starts to run on the date of the last overt act alleged” in the indictment.

Tolling under § 3292 does not take effect in the absence of an order from “the district court before which a grand jury is impaneled to investigate the offense” that makes two findings pertaining to the offense: (1) that an “official request” has been made to a foreign governmental authority for “evidence of [the] offense,” and (2) “that it reasonably appears, or reasonably appeared at the time the request was made, that such evidence is, or was, in such foreign country.” If those findings are made, then the district court “shall suspend the running of the statute of limitations for the offense.”

We hold that tolling under § 3292 applies to every offense—that is, a course of conduct in violation of a particular statutory prohibition—that is covered by the district court’s tolling order and for which the required statutory findings have been made. Although the tolling order must identify which offenses are tolled, it need not do so by citation to the relevant statutory prohibition. Whether a particular offense is embraced by the tolling order is a question of construction. And similar to how we construe an indictment, we determine the identity of the offenses covered by a tolling order based on their substance, not their label.

Although the tolling order here did not list by name or citation the charged offense of conspiracy to commit federal funds bribery, it is clear from context that this offense was covered by the tolling order. The district court ordered that the statute of limitations be suspended “for the offenses set forth in the government’s ex parte application.” And in providing detail on those offenses, the government’s application described conduct that embraced not only the essential facts of So’s conspiracy charge, but also other key facts alleged in the indictment. The offense charged is thus substantively the same as one of the offenses for which tolling was sought and ordered. The failure to identify this offense by the correct statutory citation was merely an “error, defect, irregularity, or variance that does not affect substantial rights.” Fed. R. Crim. P. 52(a). 

However, as Judge Lee's dissent points out: 

The problem here is that the federal government in its ex parte application never specified “the offense”—conspiracy to commit offense or to defraud United States under 18 U.S.C. § 371—that became the basis of the guilty verdict. Instead, the government listed five other offenses that were never charged. Based on the government’s application, the district court tolled the statute of limitations for those five offenses only—but not the actual offense that defendant Brian So committed.

We must apply the law as written by Congress: Section 3292 requires the government to specify “the offense” for which it wants the statute of limitations tolled. While I agree with the majority that Section 3292 does not require a specific U.S. Code citation, the government must provide sufficient information for the court to understand which offense is at issue. Nothing in the government’s application or the court order suggests that “the offense” being tolled was the conspiracy to defraud the United States. I reluctantly believe that So’s conviction must be overturned. I respectfully dissent.