3/19/25: Aggravated identity theft under 1028A and other issues

In United States v. Parviz, --- F.4th ---, No. 22-50160 (9th Cir. 2025), the Court affirmed Parviz’s conviction and sentence for one count of making a false statement on a passport application, 18 U.S.C. § 1542, and one count of aggravated identity theft, 18 U.S.C. § 1028A(a)(1), arising from Parviz’s scheme to kidnap C.P., her biological daughter over whom she had lost her parental rights, and to take her out of the United States.

The Court's discussion of section 1028A is probably the most relevant for our practices.  The conviction arose from Parviz's application to get her daughter a passport 

[T]he passport application’s instructions specified that for any passport application, the applicant—including a minor—is required to appear in person. However, State Department policy allows for an exception to this requirement where the minor is medically unable to be present. See 22 C.F.R. § 51.28(a)(1) (authorizing exceptions to the in-person requirement, “pursuant to guidance issued by the Department”). To fit within this medical exception, Parviz submitted a fraudulent letter on the letterhead of the Lucile Packard Children’s Hospital (“Packard Hospital”) in Palo Alto, California. The letter, dated June 7, 2019, purported to be from “Dr. Bret Allen Barker, DNP, FNP,” and it stated that C.P. was under his care, was immunocompromised, and was “unable to leave the medical facility due to her critical medical condition.” The letter claimed that C.P. required “emergency travel to the U.K. for medically necessary operations and a personal appearance for the passport application process would pose an unsurmountable risk to the child’s health.” The letter also included Barker’s name, National Provider Index number (“NPI”), registered nursing number, and signature. Contrary to the representations in this letter, C.P. was in the care of her foster family in Texas, as her foster mother testified at trial; she had no ongoing health issues; she was not immunocompromised; and she had no scheduled medical operations. Barker was a nurse practitioner who had worked at Packard Hospital from March 2019 to April 2019, and he became romantically involved with Parviz in May 2019. But Barker had never met C.P., nor treated her as a patient, and he was not working at Packard Hospital on the date listed in the letter.

[U]nder Dubin, the evidence must be sufficient to show that Parviz’s misuse of Barker’s “means of identification” was “at the crux” of what made her passport fraud criminal, viz., the false statements made to secure C.P.’s passport. Moreover, where (as here) the predicate crime involves “fraud or deceit,” Dubin states that “the means of identification specifically must be used in a manner that is fraudulent or deceptive,” meaning that the “fraud or deceit” must go “to ‘who’ is involved.” Id. at 132. The evidence in this case is sufficient to satisfy that standard.

[C]rucially, the record evidence supports a rational inference that Parviz assembled the letter and forged Barker’s signature. Barker specifically testified that he did not prepare the letter or sign it. The Government presented Barker’s signature from his DMV records, which enabled the jury to contrast it with the signature on the fraudulent letter. In addition, Collin County officers found an unsigned copy of the letter in Parviz’s car when she was arrested. And, notably, the letter submitted to the passport office misspelled Barker’s middle name. 

On this record, a rational trier of fact could find that the use of Barker’s “means of identification”—namely, his name, NPI, and registered nursing number—was central to the fraudulent letter’s objective of establishing a medical excuse from the State Department’s regulation requiring a minor’s personal appearance for a passport application. 

Further, because Parviz prepared the letter and forged Barker’s signature, a rational jury could conclude that there was falsity as to “who” was making the critical misrepresentations contained in the letter.

Parviz separately contends that the phrase “without lawful authority” in § 1028A “must mean more than ‘used illegally,’ because the premise of the statute is that a predicate offense has been committed.”  In Parviz’s view, because she used Barker’s means of identification “with his complicity,” she did not use such means “without lawful authority.” 

In United States v. Osuna-Alvarez, 788 F.3d 1183 (9th Cir. 2015), we held that the language of § 1028A “clearly and unambiguously encompasse[d] situations like the present, where an individual grants the defendant permission to possess his or her means of identification, but the defendant then proceeds to use the identification unlawfully.”

Dubin explicitly declined to address the statutory meaning of “lawful authority.” See 599 U.S. at 128 n.8 (“The Court need not, and does not, reach the proper interpretation of ‘without lawful authority.’”). Because no intervening Supreme Court or en banc decision is “clearly irreconcilable” with Osuna-Alvarez, we remain bound by its construction of the phrase “without lawful authority” in § 1028A. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). And under Osuna-Alvarez, the district court’s instruction was correct, and the evidence was sufficient to find that Parviz had used Barker’s means of identification without lawful authority.  

The Court also rejected Parviz's challenges to her sentence. 

3/18/25: Healthcare kickbacks

In United States v. Enriquez, --- F.4th ---, No. 23-4424 (9th Cir. 2025), the Court affirmed the denial of Enriquez’s motion to dismiss an indictment charging him with conspiracy to receive healthcare kickbacks in violation of 18 U.S.C. § 371 and receiving prohibited payments in violation of the Anti-Kickback Statute (AKS).  Here are some important points from the opinion: 

On appeal, Enriquez contends the district court erred in denying his motion to dismiss the indictment because it failed to state an offense or, alternatively, was insufficiently specific. Both arguments rely on expanding the reach of Ruan v. United States, 597 U.S. 450 (2022), which held that Controlled Substances Act (“CSA”) Section 841’s exception for authorized prescriptions must be proven beyond a reasonable doubt. Enriquez argues that under Ruan’s logic, any “facially applicable” exception must be treated as a “quasi-element” and alleged in the indictment. More specifically, he argues that because his indictment alleged an employee-employer relationship, the government was required to plead facts alleging why the AKS bona fide employment relationship safe harbor did not apply. Because his indictment failed to allege the safe harbor’s inapplicability, Enriquez argues, the indictment failed to state an offense and the district court therefore erred by denying his motion to dismiss the indictment. We disagree that Ruan supports Enriquez’s position, and we affirm the denial of his motion to dismiss.

Congress chose to include each AKS safe harbor in a subsection full of statutory exceptions distinct from the prohibited conduct specified in Sections 1320a7b(b)(1) and (b)(2). That choice is consequential because it puts the AKS within the “settled rule” that statutory exceptions are treated as affirmative defenses when they are contained in “a proviso or other distinct clause, whether in the same section or elsewhere[.]”

[C]ourts have repeatedly concluded that the AKS’s bona fide employment relationship safe harbor is an affirmative defense

[W]e read Ruan’s holding more narrowly than Enriquez suggests. Ruan does not treat Section 841’s authorization exception “like an element” for every purpose.

[E]ven if Ruan (and not just Ninth Circuit precedent) required the government to allege Section 841’s authorization exception in an indictment, the same does not follow for the AKS’ safe harbors, which no court has ever deemed to be an element or a “quasi-element” of the statute.

We decline to extend Ruan to (a) the AKS and (b) pleading requirements. Because Ruan provides no reason to stray from the bedrock principle that indictments need not allege affirmative defenses, McKelvey, 260 U.S. at 357, we affirm the denial of Enriquez’s motion to dismiss for failure to state an offense.

An indictment must satisfy certain minimal standards of specificity to avoid being dismissed under Rule 12(b)(3)(B)(iii). Even if an indictment has pled each of an offense’s essential elements, it still lacks requisite specificity if it “fails to allege sufficient facts to facilitate the proper preparation of a defense and to ensure that the defendant[] [is] prosecuted on facts presented to the Grand Jury.” 

“The test for sufficiency of the indictment is not whether it could have been framed in a more satisfactory manner, but whether it conforms to minimal constitutional standards.”

Because all elements of the conspiracy crime were pled in adequate detail, we affirm the district court’s denial of Enriquez’s motion to dismiss the indictment for insufficient specificity under Rule 12(b)(3)(B)(iii).

We find no reason to stretch Ruan beyond its logical limits. Because the government is not required to plead affirmative defenses in an indictment, and it pleaded all elements of the conspiracy offense in detail, count nine of the indictment was sufficient. Accordingly, the district court properly denied Enriquez’s motion to dismiss for failure to state an offense and lack of specificity. 

3/17/25: Two decisions today

In United States v. Thompson, --- F.4th ---, No. 22-30179 (9th Cir. 2025), on the government's appeal, a divided panel vacated Paige Thompson’s sentence on substantive reasonableness grounds.  

The case arose from a large data breach prosecution.  The district court correctly calculated Thompson’s sentencing range at 168 to 210 months of imprisonment. It then granted a roughly 98% downward variance to time served (approximately 100 days) and five years of probation.

The majority held the district court overemphasized Thompson’s personal story and committed a clear error of judgment in weighing several of the factors set forth in 18 U.S.C. § 3553(a).  

The dissent persuasively argued that the sentence was substantively reasonable under the abuse of discretion standard. 

In United States v. Rodriguez-Arvizu, --- F.4th ---, No. 23-393 (9th Cir. 2025), the Court affirmed the district court’s denial of Rodriguez-Arvizu’s motion to suppress his post-arrest statements in a case related to his participation in a marijuana “rip crew”—a group of armed individuals who steal drugs from smugglers.

The opinion covers a lot of ground and is worth reading.  Here are some key points. 

This appeal presents four questions: whether the district court erred in denying Rodriguez-Arvizu’s motion to suppress based on (1) an alleged violation of Fed. R. Crim. P. 4(c)(3)(A); (2) an alleged violation of his Fifth Amendment rights; (3) an alleged violation of his Sixth Amendment rights; and (4) an alleged violation of 18 U.S.C. § 3501 and McNabb-Mallory. 

Pursuant to Fed. R. Crim. P. 4(c)(3)(A), an arresting officer who does not possess a copy of the arrest warrant “must inform the defendant of the warrant’s existence and of the offense charged.” The Government does not contest the district court’s finding that the FBI agents did not tell Rodriguez-Arvizu the specific charges against him, but instead argues that “any failure” that occurred does not warrant application of the exclusionary rule.

Since the initial adoption of the Federal Rules of Criminal Procedure over eighty years ago, there has been little litigation regarding Rule 4(c)(3)(A). Notably, no court has yet held that suppression is warranted for a violation of this rule. Nonetheless, Rodriguez-Arvizu argues that suppression is justified in this case because Agent Ramirez “intentional[ly]” violated the rule for the purpose of circumventing his “important rights.” 

We agree with the district court that suppression is not warranted for the FBI agents’ violation of Rule 4(c)(3)(A). 

Agent Terwilliger’s and Agent Ramirez’s failure to inform Rodriguez-Arvizu of the precise charges against him does not meet the high bar required for suppression.  

Moreover, as the district court also pointed out, if we assume—as the D.C. Circuit has speculated—that Rule 4(c)(3)(A) was meant to protect a defendant’s Fifth Amendment right against self-incrimination, that right was not implicated here.

Here, there was no evidence that the FBI agents engaged in the kind of “deliberate, reckless, or grossly negligent conduct” that the exclusionary rule is meant to deter. Herring, 555 U.S. at 144. Moreover, the district court found that there was no evidence that the failure to abide by Rule 4 is a systemic problem either in the FBI or in federal law enforcement more broadly.  Therefore, the FBI agents’ violation of Fed. R. Crim. P. 4(c)(3)(A) does not warrant suppression of Rodriguez-Arvizu’s statements. 

Rodriguez-Arvizu next contends the district court erred in failing to suppress his statements based on a violation of his Fifth Amendment right to counsel. Once an accused person has “expressed his desire to deal with the police only through counsel,” that person “is not subject to further interrogation by the authorities until counsel has been made available to him, unless the accused himself initiates further communication, exchanges, or conversations with the police.”

The district court did not err in determining that Rodriguez-Arvizu did not unambiguously invoke his Fifth Amendment right to counsel. We have previously held that silence is insufficient to invoke this right.

We . . . conclude that Rodriguez-Arvizu’s failure to sign the I-214 Form was not sufficient on its own to invoke his Fifth Amendment right to counsel.

Regardless, the district court’s finding that there was no Miranda violation may also be affirmed because Rodriguez-Arvizu made spontaneous statements during the ride to the FBI office that reinitiated questioning, and the totality of the circumstances demonstrates that he knowingly and intelligently waived his Fifth Amendment right to counsel following this reinitiation. 

Under the Sixth Amendment, “the accused shall enjoy the right . . . to have the Assistance of Counsel for his defence.” U.S. Const. amend. VI. This right attaches “when formal judicial proceedings are initiated against an individual by way of indictment, information, arraignment, or preliminary hearing.” United States v. Gouveia, 467 U.S. 180, 185 (1984). The burden is on the Government to prove that the defendant voluntarily, knowingly, and intelligently waived this right.

Rodriguez-Arvizu claims that he did not voluntarily, knowingly, and intelligently waive his Sixth Amendment right to counsel because the FBI agents’ violation of Rule 4(c)(3)(A) meant that he never understood why he was indicted or the purpose of the warrant.

[W]e agree with the district court that—given the totality of the circumstances—Rodriguez-Arvizu did not need to be told that he had been indicted to validly waive his Sixth Amendment right to counsel. While the Supreme Court has left open the question of “whether or not an accused must be told that he has been indicted before a post-indictment Sixth Amendment waiver will be valid,” like other circuits, we have thus far answered that question in the negative.

We reject Rodriguez-Arvizu’s suggestion that there is a categorical rule that a defendant must be notified of the charges in an indictment before he can validly waive his Sixth Amendment rights. Instead, we hold that the Sixth Amendment inquiry is contextual, and a waiver of the right to counsel is valid if the circumstances indicate the defendant was apprised of his rights, the criminal liability he potentially faced, and the gravity of his situation. Applying this rule here, the district court did not err in concluding that Rodriguez-Arvizu validly waived his Sixth Amendment right to counsel.

It remains true that the simplest way for the Government to prove that a defendant voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel is to demonstrate that the defendant knew his specific charges. But that is not the only way to prove a valid waiver of this right. Under the context-specific analysis articulated here, the district court did not err in determining that the Government met its burden of proving that Rodriguez-Arvizu voluntarily, knowingly, and intelligently waived his Sixth Amendment right to counsel. 

Finally, the district court did not err when it determined that Rodriguez-Arvizu’s confession did not fall outside the safe harbor period of 18 U.S.C. § 3501(c). Rule 5(a)(1)(A) of the Federal Rules of Criminal Procedure provides in relevant part that “[a] person making an arrest within the United States must take the defendant without unnecessary delay before a magistrate judge.” The McNabb-Mallory rule clarifies that if this rule is violated, an arrested person’s confession is presumptively inadmissible.  McNabb-Mallory was modified by 18 U.S.C. § 3501(c), which created a safe harbor by stating that a confession is admissible so long as the confession was given “within six hours immediately following [the defendant’s] arrest or other detention.” 18 U.S.C. § 3501(c). The rule today is that “[w]hen a criminal defendant brings a suppression motion based on McNabbMallory, the district court looks to see whether the confession was obtained within six hours of arrest. If so, McNabb-Mallory does not bar its admission.”

We agree with the district court that there can be independent triggers for the statutory safe harbor clock when unrelated federal charges are at issue and that, given the circumstances of this case, the relevant six-hour clock only began to run when Rodriguez-Arvizu was arrested by the FBI.

Rodriguez-Arvizu’s confession at the FBI office, which took place within six hours of his second arrest, did not violate § 3501(c). 

[B]ecause the statutory scheme supports the conclusion that there can be independent triggers for the six hour safe harbor period for unrelated federal charges, and because the circumstances of Rodriguez-Arvizu’s two arrests demonstrate that the relevant six-hour clock only began upon his formal arrest by the FBI agents rather than any earlier point, Rodrigez-Arvizu’s confession took place within the safe harbor period.

3/13/25: Data breach cover up

In United States v. Sullivan, --- F.4th ---, No. 23-927 (9th Cir. 2024), the Court affirmed Sullivan’s jury conviction for obstruction of justice and misprision of a felony arising from his efforts, while the Chief Security Officer for Uber Technologies, to cover up a major data breach even as Uber underwent investigation by the Federal Trade Commission into the company’s data security practices.  

Here are some key parts of the opinion. 

Sullivan claims error with respect to two of his proposed jury instructions regarding the obstruction conviction—the “nexus” instruction and the “duty to disclose” instruction.

In accord with the statutory language, the jurors were instructed: “For the defendant to be found guilty [under Section 1505], the government must prove each of the following elements beyond a reasonable doubt: First, there was a proceeding pending before a department or agency of the United States; Second, the defendant was aware of the proceeding; and Third, the defendant intentionally endeavored corruptly to influence, obstruct, or impede the pending proceeding.” This instruction precisely mirrors the elements of Section 1505, as spelled out in United States v. Price, 951 F.2d 1028, 1031 (9th Cir. 1991).

Ninth Circuit precedent forecloses Sullivan’s argument. We held in United States v. Bhagat that there is no “need to supplement the Price instructions with additional elements,” including a “nexus” element, for a conviction under Section 1505. 

Sullivan also claims that the district court erred by rejecting his proposed “duty to disclose” instruction: that, if the basis of the obstruction-of-justice conviction was Sullivan’s “withholding of information, the government must prove beyond a reasonable doubt that [he] had a duty to disclose that information to the FTC.” Sullivan contends that, without this instruction, the jury may have convicted on a theory that was invalid under Section 1505—that is, inaction by a defendant under no duty to disclose. He urges application of the Yates rule that “a verdict [is required] to be set aside in cases where the verdict is supportable on one ground, but not on another, and it is impossible to tell which ground the jury selected.” 

The Yates rule applies only to disjunctive charges and theories of culpability. Thus, if multiple “ways in which an offense may be committed” are alleged conjunctively in one count, then “proof of any one of those acts conjunctively charged may establish guilt,” and Yates is inapplicable. 

A tandem prosecution under Section 2(b) and a substantive criminal statute presents conjunctive theories of culpability. In this context, Section 2(b) “is considered embodied in full in every federal indictment.” Therefore, if a theory based on the inaction of a defendant under no duty to disclose would be valid under either Section 2(b) or Section 1505, then the instruction was not in error.

 Section 2(b) also does not require a defendant to have a duty to disclose if prosecuted for inaction. Singh, 979 F.3d at 717–18 (concluding that the defendant need not have a duty to disclose, so long as the third party who does the act has such a duty). Sullivan concedes that “Uber was duty-bound to respond to formal FTC inquiries issued to Uber.”

We need not reach the question of validity under Section 1505. Because the legal theories under Section 1505 and Section 2(b) are conjunctive, the validity under Section 2(b) alone renders the omission of a duty-to-disclose instruction proper. 

We now turn to Sullivan’s argument that the evidence of his alleged misprision was insufficient as a matter of law.

To establish misprision, the government is obliged to show that “the principal committed and completed the felony alleged.” Here, that meant proving that the hackers had “intentionally accesse[d]” Uber’s computers “without authorization . . . and thereby obtain[ed]” information from those “protected computer[s],” in violation of the CFAA. 

The hackers’ use of stolen credentials to access protected, private servers was a typical CFAA violation.

Sullivan argues that Uber’s post hoc authorization, via the NDA, retroactively rendered the hackers’ access authorized—thereby erasing their felony. But this is a false premise, inconsistent with the most plain and natural reading of the CFAA.

Finally, we address Sullivan’s contention that the district court abused its discretion in permitting the introduction of the guilty plea agreement signed by one of the hackers.

Any unfair prejudice to the defendant resulting from the plea’s admission into evidence does not substantially outweigh the plea’s probative value. Because the hacker and Sullivan pleaded guilty to separate crimes, the fact of this plea does not improperly impute blame for the hacker’s conduct to Sullivan. 

3/11/25: solicitation to commit a crime of violence

In United States v. Walthall, --- F.4th ---, No. 22-50204 (9th Cir. 2025), the Court affirmed Walthall’s conviction for solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a). Here are some key parts of the opinion: 

While awaiting sentencing after having been found guilty of fraud, John Walthall asked a fellow inmate to help arrange for hit men to murder the judge, the investigators, and the attorneys involved in his fraud case. The inmate contacted authorities, and Walthall was ultimately convicted of solicitation to commit a crime of violence, in violation of 18 U.S.C. § 373(a). He now appeals, arguing that the evidence was insufficient because he had no direct contact with the hit men, who apparently did not exist. But the statute does not require that solicitation be carried out by a direct communication, rather than through an intermediary, nor does it require that the person solicited actually exist. Although it does require circumstances strongly corroborative of the defendant’s intent for someone to commit violence, the evidence here was sufficient to allow the jury to find such corroboration. Walthall’s other challenges to his conviction also lack merit—including his argument that the district court erred in finding him incapable of representing himself. We affirm.

Walthall argues that the evidence was insufficient to allow the jury to find him guilty of soliciting a crime of violence because, he says, “nobody that Mr. Walthall spoke to was asked to murder the federal officials, nor was there any direct and known conduit to an actual person who would engage in the violent conduct.” In his view, 18 U.S.C. § 373(a) requires (1) that the defendant have “direct” communication with the person whom he intends to commit an act of violence and (2) that the person with whom he communicates be a specific “actual person.” We think the statute requires neither of those things.

[W]e have little difficulty concluding that the evidence in this case was sufficient for conviction. 

Walthall advances three challenges to the jury instructions. The parties debate the standard of review that applies to those challenges, which Walthall did not advance below and arguably affirmatively waived. We need not resolve that debate because even if we were to review de novo, we would conclude that Walthall’s challenges fail.

First, Walthall objects that although section 373(a) requires the defendant to intend that “another person” engage in a crime of violence and to solicit “such other person to engage in such conduct,” the instructions did not refer to “such other person” but simply repeated the phrase “another person.” As a result, he says, “the instructions eliminated the unity required between the solicited person and the intended violent conduct.” But the instructions required the jury to find that Walthall “solicited, commanded, induced, or otherwise endeavored to persuade another person to carry out a federal felony crime of violence”—in other words, that he solicited the person whom he intended to carry out the crime of violence. That is precisely the offense that the statute describes. Even if some other instruction might have been clearer, “[t]he availability of a better instruction is not a ground for reversal.” United States v. Garza, 980 F.2d 546, 554 (9th Cir. 1992) (quoting United States v. Ward, 914 F.2d 1340, 1344 (9th Cir. 1990)). 

Second, Walthall objects that the instructions did not specify that “another person” must be an actual person. As we have already explained, however, that is not an element of the statute. 

Third, Walthall contends that the district court erred in instructing the jury that “killing or attempting to kill any officer or employee of the United States . . . is a federal felony crime of violence.” In his view, the reference to attempt was confusing because the district court did not define attempt. The government acknowledges that given the nature of the charged conduct—that is, solicitation of actual murder, not attempted murder—it would have been better for the instructions not to refer to attempt. Assuming without deciding that the reference to attempt was legally erroneous, the error was harmless. See United States v. Bachmeier, 8 F.4th 1059, 1065 (9th Cir. 2021). Other parts of the instructions stated that “the United States alleges that the federal felony crimes of violence solicited were” murder and assault, without mentioning attempt. No evidence suggested that Walthall solicited attempted murder, and the prosecutor did not mention attempted murder in the opening statement or the closing arguments. And on the verdict form, the jury specifically found Walthall guilty of “soliciting the murder of” the five named victims, not of soliciting attempted murder. The reference to attempt therefore had no effect on the verdict. 

Next, Walthall challenges the district court’s denial of his right to represent himself.

In the earlier appeal, we held that “once the district court determined that Walthall was competent to stand trial, the district court erred by not making further inquiry to support findings concerning Walthall’s ability to represent himself.” Walthall, 782 F. App’x at 580. We did not foreclose the district court from denying Walthall’s self-representation request under Edwards; we simply required the district court to conduct “further inquiry” and make appropriate “findings concerning Walthall’s ability to represent himself.” Id. That is exactly what it did.

Walthall also asserts that Edwards does not apply in federal court because 28 U.S.C. § 1654 gives federal criminal defendants an absolute right to self-representation. It does not.

Finally, Walthall asserts that the district court erred in calculating the applicable sentencing range under the advisory Sentencing Guidelines based on the maximum sentence for soliciting murder rather than for soliciting attempted murder. Because Walthall did not raise this issue at sentencing, we review for plain error. United States v. Bautista, 989 F.3d 698, 701 (9th Cir. 2021). We find none.

As we have already explained, the jury returned a verdict finding Walthall guilty of soliciting the murder, not the attempted murder, of five people. The district court did not err in calculating Walthall’s sentence accordingly.  

3/5/25: Major Fourth Amendment decision in the traffic stop context

In United States v. Steinman, --- F.4th ---, No. 23-1703 (9th Cir. 2025), on a government appeal, the Court reversed the district court’s order suppressing evidence seized from Steinman’s car following a traffic stop in a case in which Steinman was charged with being a felon in possession of ammunition and possession of unregistered firearms. 

Below are some of the key points: 

The Government challenges the district court’s order granting Steinman’s motion to suppress on multiple bases. First, the Government argues that the district court erred in its conclusion that Trooper Boyer unconstitutionally prolonged the traffic stop without the requisite reasonable suspicion, in part because it improperly considered Trooper Boyer’s subjective motivation. Second, the Government contends that the district court erred in concluding that Trooper Boyer lacked probable cause to seize Steinman’s BMW.

Steinman disagrees with the Government on those two points and further insists that because the Government failed to challenge the district court’s ruling that the search warrant was overbroad—an “independent basis for suppression”— we must uphold the suppression order. In response to this additional argument, the Government insists that the overbreadth of the warrant is immaterial because Trooper Boyer had probable cause to believe that the BMW contained evidence of a crime, so it could be searched without a warrant pursuant to the automobile exception to the Fourth Amendment’s warrant requirement. 

We agree with the Government on all three points, and we reverse the suppression order.

The district court concluded that the fruits of the traffic stop could be suppressed because Trooper Boyer unconstitutionally extended the traffic stop without the requisite reasonable suspicion. This was error.

In short, if a traffic stop is constitutionally justified at its inception—which is not seriously disputed in this appeal— our analysis is twofold. Was the stop prolonged, and, if so, was the prolongation justified by reasonable suspicion based on the information available at that juncture?

Applying these rules here, we conclude that Steinman’s Fourth Amendment rights were not violated by an unconstitutional prolongation of the traffic stop. Our conclusion flows from two key premises. First, nothing up until the point when Trooper Boyer finished reviewing Steinman’s criminal history and learned that he had a felony conviction (approximately 4:08pm according to the body-camera footage) constituted an unconstitutional prolongation of the traffic stop. All of the actions taken by Trooper Boyer up until that point either (1) were within the legitimate mission of the traffic stop, including protecting officer safety or (2) did not prolong the traffic stop. Second, after Trooper Boyer reviewed the criminal history and learned that Steinman had a felony conviction, he had reasonable suspicion to believe that Steinman was engaged in criminal activity—namely, that Steinman possessed firearms in violation of Nevada law. Thus, even if we assume that Trooper Boyer did prolong the stop at some point after he learned that Steinman had a felony conviction, it is of no moment because he was entitled to do so based on his reasonable suspicion of an independent offense.  

First, it did not prolong the stop for Trooper Boyer to ask Steinman to exit the BMW and come with him to the patrol car. It is black-letter law that a trooper may do so in the interest of officer safety.

[E]ven assuming that Steinman is correct that some of Trooper Boyer’s questioning during the relevant period fell outside the purview of the traffic-stop mission, Trooper Boyer did not violate Steinman’s Fourth Amendment rights. Again, “the Fourth Amendment tolerate[s] certain unrelated investigations that [do] not lengthen the roadside detention.” 

To the extent that Steinman argues that simultaneous questioning or discussion inherently slows down the citation-writing process—and thus extends traffic stops— because it is distracting and reduces the capacity of officers to work diligently, we are unpersuaded. Police officers are not automatons required to work with the maximum possible efficiency at all costs. Nor are they required to sit in stony silence like school children taking an exam during the process of filling out a traffic citation.

In sum, because Trooper Boyer’s arguably investigatory questioning occurred simultaneously with tasks that fell within the mission of the traffic stop—viz., filling out the citation form and requesting and reviewing a criminal history records check—we cannot say that the questioning measurably prolonged the stop. Thus, it does not implicate Steinman’s Fourth Amendment rights.

Even assuming arguendo that Trooper Boyer deviated from the traffic-stop mission to conduct an independent investigation after he finished reviewing the criminal history check, an independent investigation was justified because Trooper Boyer had reasonable suspicion that Steinman was engaged in criminal activity. Put otherwise, “even if,” after the initial criminal history-check, Trooper Boyer “prolonged the encounter beyond the original mission of the traffic stop, [he] had a sufficient basis to do so”—namely, reasonable suspicion of an independent offense.

After Trooper Boyer had viewed Steinman’s criminal history report, he had (1) observed an ammunition box in Steinman’s vehicle; (2) observed a blanket covering a number of items in the back seat; (3) heard Steinman’s arguably evasive answer about what was under the blanket; (4) observed furtive movements by Steinman in the BMW; (5) heard Steinman’s admission that there was ammunition (though not guns) in the vehicle; and (6) learned that Steinman had felony convictions. Considering the totality of the circumstances, this was sufficient to give Trooper Boyer reasonable suspicion to extend the traffic stop to investigate whether Steinman had firearms in the vehicle in violation of Nevada law.

In sum, the district court’s decision that there was an unconstitutional prolongation of the traffic stop was erroneous. Trooper Boyer did not prolong the traffic stop in violation of the Fourth Amendment by any of the actions that he took up through the point where he reviewed the criminal history check, at around 4:08 p.m. And even if there was prolongation after that point, Trooper Boyer had reasonable suspicion that Steinman had committed an independent criminal offense in violation of Nevada law, so he could deviate from the traffic stop to investigate that offense.  

The district court also suppressed the fruits of the search on the ground that there was no probable cause for Trooper Boyer to seize Steinman’s BMW. Reviewing the probable cause determination de novo, see Guerrero, 47 F.4th at 984, we disagree. The information available to Trooper Boyer would have given him probable cause to believe that the BMW contained (1) evidence that Steinman possessed ammunition in violation of federal law and (2) evidence that Steinman possessed firearms in violation of state law. Accordingly, Trooper Boyer could seize the BMW, and suppression was not warranted on this basis.

The warrantless towing of Steinman’s car qualifies as a seizure within the meaning of the Fourth Amendment. See Miranda v. City of Cornelius, 429 F.3d 858, 862 (9th Cir. 2005). “Because warrantless searches and seizures are per se unreasonable, the government bears the burden of showing that a warrantless search or seizure falls within an exception to the Fourth Amendment’s warrant requirement.” United States v. Cervantes, 703 F.3d 1135, 1141 (9th Cir. 2012). 

Here, all parties agree that, in order to seize the BMW, Trooper Boyer must have had probable cause that the BMW contained evidence of a crime. This is derived from the “‘automobile exception’” to the Fourth Amendment’s warrant requirement, “under which a warrantless search of a vehicle is permitted ‘if there is probable cause to believe that the vehicle contains evidence of a crime.’”

We first address whether Trooper Boyer could seize the BMW because he had probable cause to believe that it contained evidence of a federal crime—namely, that Steinman possessed ammunition as a felon in violation of 18 U.S.C. § 922(g)(1).

Steinman contends that Trooper Boyer, a state law enforcement officer, “had no basis to seize the car for a potential federal law violation.” The parties agree that possession of ammunition is only prohibited by federal law and is not a crime under Nevada law.

Steinman says that the seizure of the BMW cannot be retroactively justified on the grounds that a state law enforcement officer suspected that there was evidence of a federal crime when that same conduct was not unlawful under state law.

Whether state officers can rely on suspected violations of federal law in justifying a search or seizure is an issue that our court has never squarely addressed. And it is a question that has divided the few courts that have addressed it. 

In simple terms, the question at issue is “whether an officer employed by one government can justify a search or seizure based on a violation of a different government’s law.” Id. at 474. This has been called the issue of “cross-enforcement” of the Fourth Amendment.  

After considering the arguments raised by both parties, we agree with the Government that the fact that possession of ammunition by a felon is illegal only under federal law poses no barrier to Trooper Boyer’s seizure of the BMW.

[W]e conclude that, under the circumstances of this case, Trooper Boyer could seize Steinman’s BMW because he had probable cause to believe that it contained evidence of a federal crime (namely, possession of ammunition by a felon), even though that same conduct was not criminalized under Nevada law. 

[E]ven if we were to agree with Steinman on this point (which we do not), the seizure of the BMW was nevertheless constitutional because there was probable cause to believe that Steinman had violated Nevada law by possessing firearms as a felon. 

We find it particularly salient that the BMW contained an ammunition box in plain view. Indeed, we have found the presence of ammunition (or other indicia of firearm ownership) on a defendant’s person to be highly important in the probable-cause analysis. 

As a panel of our court cogently articulated, “[b]ullets strongly suggest the presence of a gun.”  Although that statement was made in an unpublished—and thus nonprecedential—case, we firmly agree with that common-sense sentiment.

In sum, the district court erred in concluding that there was not probable cause to seize (and search) the BMW on the ground that it contained evidence that (1) Steinman was violating federal law by possessing ammunition and (2) Steinman was violating Nevada law by possessing firearms. Thus, Trooper Boyer did not violate Steinman’s Fourth Amendment rights in seizing his BMW. 

Finally, Steinman also argues that even if the district court did err in concluding that the stop was unconstitutionally prolonged and the seizure was not justified by probable cause, we should still affirm the district court’s suppression order because of warrant overbreadth. According to Steinman, the district court reasoned that warrant overbreadth was an independent ground for suppression, and the Government has failed to challenge this ruling on appeal.

We agree with Steinman that the Government has waived any challenge to overbreadth and that the district court saw warrant overbreadth as an independent basis for exclusion. 12 Thus, for purposes of this appeal, we accept the proposition that the search warrant was overbroad and thus could not justify a search of Steinman’s automobile. But we disagree with Steinman that this overbreadth requires suppression of the evidence found in the automobile.

Instead, we agree with the Government that the overbreadth of the warrant is ultimately immaterial because a warrantless search of the BMW was permissible under the automobile exception to the Fourth Amendment’s warrant requirement.

Thus, notwithstanding the overbreadth of the warrant, the fruits of the search of Steinman’s BMW—namely, the guns and ammunition—need not be suppressed if the search could have been justified pursuant to one of the exceptions to the warrant requirement. Such a justification is present in this case. As indicated above, Trooper Boyer had probable cause to search and seize the BMW without a warrant pursuant to the automobile exception to the Fourth Amendment’s warrant requirement because he had probable cause to believe that it contained evidence of violations of both federal and state law. See Acevedo, 500 U.S. at 569– 70; Faagai, 869 F.3d at 1150. And the automobile exception may apply even if the automobile has been towed back to the police station or elsewhere. See Acevedo, 500 U.S. at 570; Chambers v. Maroney, 399 U.S. 42, 51–52 (1970); Scott, 705 F.3d at 417. Thus, the fruits of the search need not be suppressed.  

3/4/25: Article III does not guarantee the right to a jury trial in supervised release revocation proceedings.

In United States v. Bowers, --- F.4th ---, No. 23-902 (9th Cir. 2025), the Court affirmed the district court’s revocation of Jackson Daniel Bowers’ supervised release in a case in which Bowers argued that Article III, section 2 of the Constitution affords supervisees the right to a jury trial in revocation proceedings held under 18 U.S.C. § 3583(e).

Jackson Daniel Bowers challenges his revocation of supervised release by presenting a novel constitutional argument: that Article III, section 2 of the Constitution affords supervisees the right to a jury trial in revocation proceedings held under 18 U.S.C. § 3583(e). We disagree and find that Article III’s jury trial guarantee is equivalent in scope to the Sixth Amendment’s. As such, Bowers’ Article III claim is foreclosed by circuit precedent, and we affirm the revocation of his supervised release.

Current circuit precedent holds that supervisees do not have a right to a jury trial on supervised release proceedings under the Sixth Amendment and we are bound by this precedent. Since Article III’s jury provision and the Sixth Amendment’s are equivalent in scope, it follows that a right not triggered by the Sixth Amendment cannot be independently triggered by Article III. Accordingly, Bowers revocation of supervised release is AFFIRMED.