1. Findings of Fact and Conclusions of Law
B. Pretrial Decisions in Criminal Cases
1. Appointment of Expert Witness
12. Discriminatory (Selective) Prosecution
18. Faretta Requests (Waive Counsel)
25. Indictments and Informations
40. Out‑of‑Court Identification
42. Preclusion of Proffered Defense
44. Pretrial Detention and Release
a. Conflict‑Free Representation
b. Disqualification of Counsel
k. Issuance of a Search Warrant
u. Warrantless Searches and Seizures
63. Voluntariness of a Confession
C. Trial Decisions in Criminal Cases
15. Constitutionality of Regulations
16. Constitutionality of Statutes
19. Credibility Determinations
35. Ineffective Assistance of Counsel
39. Jury Examination of Evidence
a. Formulation of Instructions
c. Denial of Requested Instruction
f. Procedure for Reviewing Instructions
g. Harmless Error and Plain Error
i. Voir Dire/Peremptory Challenges
b. Jury Composition/Batson Claims
43. Materiality of a False Statement
i. Admission or Exclusion of Evidence
iv. Funds/Expert Appointment Request
48. Prior Crimes, Wrongs or Acts
a. Attorney-Client, Doctor-Patient, Marital
b. Fifth Amendment/Defendant’s Silence
50. Fed. R. Evid. 403 – Probative Value vs. Prejudicial Harm
e. Disqualification of Prosecutor
f. Suppression of Exculpatory Evidence
52. Rebuttal and Surrebuttal Evidence
54. Recusal and Disqualification of Judge
D. Post-Trial Decisions in Criminal Cases
6. Bail Pending Sentence and Appeal
7. Correcting/Amending/Reducing Sentences
a. Applicability of the Sentencing Guidelines and pre-Guidelines Standards of
Review
b. Application of the Guidelines to Specific Facts
e. Correcting/Amending/Reducing Sentences and Rule 35
j. Interpretation and Application of Sentencing Guidelines
v. Approximation of Drug Quantities
vii. Reductions for Change in Guideline Range (§ 3582(c)(2))
20. Sufficiency of the Evidence
4. Certificates of Appealability
7. Interstate Agreement on Detainers Act
The district court’s findings of fact are
reviewed for clear error. See e.g., United States v. Rodgers, 656 F.3d 1023,
1026 (9th Cir. 2011)
(motion to suppress); United States v. Stoterau, 524 F.3d 988,
997 (9th Cir. 2008)
(sentencing); United States v. Doe, 136 F.3d 631, 636
(9th Cir. 1998)
(bench trial).[1] Findings of fact based on stipulations are entitled
to the same deference as those based on in-court testimony. See United States v.
Bazuaye, 240 F.3d 861, 864 (9th Cir. 2001).
The district court’s legal conclusions are
reviewed de novo. See United States v.
Forrester, 512 F.3d 500, 506 (9th Cir. 2008)
(motion to suppress).[2] Thus, the district court’s construction or
interpretation of a statute is reviewed de novo. See
e.g., United States v. Rivera, 527 F.3d 891,
908 (9th Cir. 2008)
(interpreting the Sentencing Guidelines); United States v. Cabaccang, 332 F.3d
622, 624-25 (9th Cir. 2003)
(en banc) (definition of importation).[3] Likewise, the “district court’s
interpretation of the sentencing guidelines” is reviewed de novo. See United States v.
McEnry, 659 F.3d 893, 896 (9th Cir. 2011); see also United States v. Lloyd, 807 F.3d 1128,
1176 (9th Cir. 2015)
(“We review Greenhouse’s sentencing challenges to the district court’s
interpretation of the Sentencing Guidelines de novo, to the factual findings
during sentencing for clear error, and to the application of the Sentencing
Guidelines for abuse of discretion.”). [4]
The district court’s interpretation of the
federal rules is reviewed de novo. See, e.g., United States v.
Urena, 659 F.3d 903, 908 (9th Cir. 2011)
(evidence); United States v.
Alvarez-Moreno, 657 F.3d 896, 900 n.2 (9th Cir. 2011)
(criminal procedure); United States v. W.R. Grace, 504 F.3d
745, 758-59 (9th Cir. 2007)
(evidence); United States v.
Fort, 472 F.3d 1106, 1109 (9th Cir. 2007)
(criminal procedure).
When a district court does not make specific
findings of fact or conclusions of law, the court of appeals may nevertheless
uphold the result if there is a reasonable view of the evidence to support
it. See
United States v.
Most, 789 F.2d 1411, 1417 (9th Cir. 1986)
(waiver). Failure to make the required
findings of fact pursuant to Fed.
R. Crim. P. 32(i)(3)(B), however, requires a remand. See Stoterau, 524 F.3d at 1011.
An error by a district court may be
harmless. See Neder v. United
States, 527 U.S. 1, 8-9 (1999)
(discussing when harmless error rule applies); Gautt v. Lewis, 489 F.3d 993, 1014-1016
(2007). Constitutional error is harmless only when it
appears “beyond a reasonable doubt that the error complained of did not
contribute to the verdict obtained.” Chapman v. California, 386 U.S. 18,
23-24 (1967);
United States v. Walters, 309 F.3d 589,
593 (9th Cir. 2002). “Review for harmless error requires not only
an evaluation of the remaining incriminating evidence in the record, but also
the most perceptive reflections as to the probabilities of the effect of error
on a reasonable trier of fact.” United States v. Bishop, 264 F.3d 919,
927 (9th Cir. 2001)
(quoting United States v. Harrison, 34 F.3d 886,
892 (9th Cir. 1994));
United States v. Oaxaca, 233 F.3d 1154,
1158 (9th Cir. 2000)
(noting “the harmlessness of an error is distinct from evaluating whether there
is substantial evidence to support a verdict”).
A non-constitutional error requires reversal
unless there is a “fair assurance” of harmlessness, or stated another way,
unless “it is more probable than not that the error did not materially affect
the verdict.” See United States v.
Seschillie, 310 F.3d 1208, 1214 (9th Cir. 2002);United States v. Morales, 108 F.3d 1031,
1040 (9th Cir. 1997)
(en banc); United States v. Hitt, 981 F.2d 422, 425
(9th Cir. 1992)
(describing possible conflict between “fair assurance” and “more probable than
not” standards); see also United States v.
Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010).[5]
In habeas review, the harmlessness standard
is whether the error “‘had substantial and injurious effect or influence in
determining the jury’s verdict.’” Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)
(quoting Kotteakos v. United States, 328 U.S.
750, 766 (1946));
see also Ybarra v. McDaniel, 656 F.3d 984, 995 (9th Cir. 2011); O’Neal v. McAninch, 513 U.S. 432, 440-41 (1995)
(“if the harmlessness of the error is in ‘grave doubt,’ relief must be
granted”); California v. Roy, 519 U.S. 2, 4 (1996) (per
curiam) (rejecting Ninth Circuit’s “modification” of the Brecht standard); Bains v. Cambra, 204 F.3d 964, 977 (9th
Cir. 2000)
(applying Brecht to habeas cases
under § 2254); United States v. Montalvo, 331 F.3d
1052, 1057-58
(9th Cir.) (applying Brecht to habeas
cases under § 2255).[6]
When a
defendant raises an issue on appeal that was not raised before the district
court, the court of appeals may review only for plain error. See
Fed. R. Crim. P. 52(b); United States v. Olano, 507 U.S. 725,
730-36 (1993)
(defining limitations on a reviewing court’s authority to correct plain error);
see also United States v.
Pelisamen, 641 F.3d 399, 404 (9th Cir. 2011). Under
the plain error standard, relief is not warranted unless there has been: (1)
error, (2) that was plain, (3) that affected substantial rights, and (4) that
seriously affected the fairness, integrity, or public reputation of the
judicial proceedings. See United States v. Walter-Eze, 869 F.3d
891, 911 (9th Cir. 2017) (jury instructions); United States v.
Gonzalez-Aparicio, 663 F.3d 419, 428 (9th Cir. 2011); Pelisamen, 641 F.3d at 404; United States v.
Davenport, 519 F.3d 940, 943 (9th Cir. 2008);[7] see also United States v. Perez, 116 F.3d 840,
845-846 (9th Cir. 1997)
(en banc) (discussing difference between forfeited rights, which are reviewable
for plain error, and waived rights, which are not). Plain error is invoked to prevent a
miscarriage of justice or to preserve the integrity and the reputation of the
judicial process. See Olano, 507 U.S. at 736.
When
an error is constitutional in nature and implicates a “structural” right so
basic to a fair trial that, by definition, it can never be harmless, the error
is deemed harmful per se. In these
instances, the error is not subject to harmless error analysis and requires
automatic reversal. See Chapman v.
California, 386 U.S. 18, 23-24 & n.8 (1967); see also United States v. Recuenco, 548 U.S. 212, 219 (2006); Neder v. United States, 527 U.S. 1, 7
(1999)
(defining structural error); Greenway v. Schriro, 653 F.3d 790, 805 (9th Cir. 2011); United States v.
Montalvo, 331 F.3d 1052, 1057 (9th Cir. 2003)
(listing structural errors); United States v. Walters, 309 F.3d 589,
593 (9th Cir. 2002)
(same). Structural errors “are
relatively rare, and consist of serious violations that taint the entire trial
process, thereby rendering appellate review of the magnitude of the harm
suffered by the defendant virtually impossible.” Eslaminia v. White, 136 F.3d 1234, 1237
n.1 (9th Cir. 1998)
(giving examples).
The district
court’s denial of a request for public funds to hire an expert is reviewed for
an abuse of discretion. See United States v.
Labansat, 94 F.3d 527, 530 (9th Cir. 1996); see also United States v.
Reed, 575 F.3d 900, 918 (9th Cir. 2009). A district court’s decision whether to
appoint an expert witness at court expense pursuant to Fed. R. Crim. P. 17(b) is
reviewed for an abuse of discretion. See United States v.
Cruz, 783 F.2d 1470, 1473‑74 (9th Cir. 1986). A district court’s failure to rule on a
motion for appointment of an expert witness is deemed a denial of the motion
that is reviewed for an abuse of discretion.
See United States v.
Depew, 210 F.3d 1061, 1065 (9th Cir. 2000).
The district court’s decision whether to
admit or exclude expert testimony is also reviewed for an abuse of
discretion. See United States v.
Sepulveda-Barraza, 645 F.3d 1066, 1071 (9th Cir. 2011); Reed, 575 F.3d at
918; United States v.
Freeman, 498 F.3d 893, 900-01 (9th Cir. 2007); United States v. Decoud, 456 F.3d 996,
1013 (9th Cir. 2006); United States v.
Seschillie, 310 F.3d 1208, 1211-12 (9th Cir. 2002); United States v. Alatorre, 222 F.3d
1098, 1100 (9th Cir. 2000)
(noting admission of expert testimony is reviewed for an abuse of discretion
“except where no objection is raised, in which case we review for plain
error”); see also United States v.
Urena, 659 F.3d 903, 908 (9th Cir. 2011)
(explaining that the district court has ample discretion to prevent designation
of a new expert witness after trial has started).
Factual
findings underlying a district court’s pretrial detention order are reviewed
under a deferential, “clearly erroneous” standard. See
United States v. Fidler, 419 F.3d 1026,
1029 (9th Cir. 2005);
United States v. Gebro, 948 F.2d 1118,
1121 (9th Cir. 1991). The court’s finding of potential danger to
the community is entitled to deference. See
Fidler, 419 F.3d at 1029; Marino v. Vasquez, 812 F.2d 499, 509
(9th Cir. 1987). The district court’s interpretation of
“community,” as used in the Bail Reform Act is reviewed de novo. See
United States v. Hir, 517 F.3d 1081,
1086 (9th Cir. 2008). Also, whether the district court’s factual
findings justify pretrial detention is reviewed de novo. See id. at 1086-87. The court’s finding that a defendant is a
flight risk is reviewed under the clearly erroneous standard. See Fidler, 419
F.3d at 1029;
United States v. Donaghe, 924 F.2d 940,
945 (9th Cir. 1991). The ultimate “fleeing from justice” question,
however, is reviewed de novo, because “legal concepts that require us to
exercise judgment dominate the mix of fact and law.” United States v. Fowlie, 24 F.3d 1070,
1072 (9th Cir. 1994);
see also Man-Seok Choe v.
Torres, 525 F.3d 733, 741 (9th Cir. 2008). A conclusion based on factual findings in a
bail hearing presents a mixed question of fact and law. The facts, findings, and record are reviewed
de novo to determine whether the detention order is consistent with
constitutional and statutory rights. See Hir, 517 F.3d at 1086-87; United States v. Townsend, 897 F.2d 989,
994 (9th Cir. 1990).
A district court’s decision to set aside or
remit forfeiture of appearance bond is reviewed for an abuse of
discretion. See United States v.
Nguyen, 279 F.3d 1112, 1115 (9th Cir. 2002); United States v. Amwest Sur. Ins. Co.,
54 F.3d 601, 602 (9th Cir. 1995).
The district court’s decision whether to
exonerate bail bond sureties is reviewed de novo. See United States v.
Noriega‑Sarabia, 116 F.3d 417, 419 (9th Cir. 1997); United States v. Toro, 981 F.2d 1045,
1047 (9th Cir. 1992). The legal validity of the bond is also
reviewed de novo. Noriega‑Sarabia, 116 F.3d at 419.
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 44.
Pretrial Detention and Release.
The district court’s decision to deny a
motion for a bill of particulars is reviewed for an abuse of discretion. See
United States v. Robertson, 15 F.3d 862,
874 (9th Cir. 1994),
rev’d on other grounds, 514 U.S. 669
(1995);
United States v. Ayers, 924 F.2d 1468,
1483 (9th Cir. 1991). The scope and specificity of a bill of
particulars rest within the sound discretion of the trial court. See
United States v. Long, 706 F.2d 1044,
1054 (9th Cir. 1983).
Challenges to
convictions based on alleged Brady
violations are reviewed de novo. See United States v. Yepiz, 844 F.3d 1070,
1075 (9th Cir. 2016)
(the court “reviews alleged Brady violations de novo.”); United
States v. Ross, 372 F.3d 1097, 1107 (9th Cir. 2004); United States v. Smith, 282 F.3d 758,
770 (9th Cir. 2002). A district court’s denial of a motion for
mistrial or new trial based on an alleged Brady
violation is also reviewed de novo. See United States v. Antonakeas, 255 F.3d
714, 725 (9th Cir. 2001);
United States v. Howell, 231 F.3d 615,
624 (9th Cir. 2000). The court’s decision to exclude evidence as a
sanction for destroying or failing to preserve evidence is reviewed, however,
for an abuse of discretion. See United States v.
Belden, 957 F.2d 671, 674 (9th Cir. 1992).
A district court’s ruling on the prosecutor’s
duty to produce evidence under Brady
is reviewed de novo. See United States v. Si, 343 F.3d 1116, 1122
(9th Cir. 2003);
United States v. Monroe, 943 F.2d 1007,
1012 (9th Cir. 1991). The court’s decision to allow production of
redacted documents is reviewed for clear error.
See Si, 343 F.3d at 1122. Thus, the district court’s ruling on whether
a defendant should have access to particular information in a government
document that has been produced pursuant to Brady
is reviewed for clear error. See Monroe, 943 F.2d at 1012; see also United States v.
Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011).
Whether a defendant has waived Brady rights in a plea agreement is a
question of law reviewed de novo. See United States v.
Ruiz, 241 F.3d 1157, 1163 (9th Cir. 2001), rev’d on other grounds, 536 U.S. 622
(2002).
A district court’s determination that a
defendant is competent to stand trial is reviewed for clear error. See United States v.
Loughner, 672 F.3d 731, 766 n.17 (9th Cir. 2012); United States v.
Johnson, 610 F.3d 1138, 1145 (9th Cir. 2010); United States v. Friedman, 366 F.3d 975,
980 (9th Cir. 2004);
United States v. Gastelum-Almeida, 298
F.3d 1167, 1171 (9th Cir. 2002);
see also Blair v. Martel, 645 F.3d 1151, 1154 n.1 (9th Cir. 2011)
(habeas). The test for competency to
stand trial is whether the defendant “has sufficient present ability to consult
with his lawyer with a reasonable degree of rational understanding . . . and a
rational as well as factual understanding of the proceedings against him.” Cooper v. Oklahoma, 517 U.S. 348, 354
(1996). In a federal habeas proceeding, state court
determinations of mental competency are given a presumption of correctness, and
will be overturned only if they are not fairly supported by the record. See King v. Brown, 8 F.3d 1403, 1408 (9th Cir. 1993).
A court’s decision to order a psychiatric or
psychological examination is reviewed for an abuse of discretion. See
United States v. George, 85 F.3d 1433,
1347 (9th Cir. 1996). The court’s decision whether to release a
copy of the competency report to the media is also reviewed for an abuse of
discretion. See United States v.
Kaczynski, 154 F.3d 930, 931 (9th Cir. 1998). Whether a court is permitted under 18 U.S.C. §
4243(f)
to order a psychiatric evaluation of an insanity acquittee is a question of
statutory construction reviewed de novo.
See United States v. Phelps, 955 F.2d 1258,
1264 (9th Cir. 1992).
This court reviews de novo the voluntariness
of a confession. See United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004)
(en banc); United States v. Haswood, 350 F.3d 1024,
1027 (9th Cir. 2003).[8] The district court’s factual findings
underlying its determination of voluntariness are reviewed for clear
error. See United States v.
Heller, 551 F.3d 1108, 1112 (9th Cir. 2009); Haswood, 350 F.3d at 1027; United States v. Gamez, 301 F.3d 1138,
1144 (9th Cir. 2002). Special deference is owed to the trial
court’s credibility determinations. See United States v.
Nelson, 137 F.3d 1094, 1110 (9th Cir. 1998); see also United States v. Ruehle, 583 F.3d 600,
606-07 (9th Cir. 2009).
The decision whether to disclose the identity
of a confidential informant is reviewed for an abuse of discretion. See United States v.
Rowland, 464 F.3d 899, 903 (9th Cir. 2006); United States v. Decoud, 456 F.3d 996,
1009 (9th Cir. 2006);
United States v. Henderson, 241 F.3d
638, 646 (9th Cir. 2000).
The district court must balance the
public interest in “protecting the flow of information” against the defendant’s
competing interest for “relevant and helpful testimony.” United States v. Ramirez‑ Rangel,
103 F.3d 1501, 1505 (9th Cir. 1997),
overruled in part on other grounds by Watson v. United
States, 552 U.S. 74 (2007). Nondisclosure is an abuse of discretion only
if “disclosure of an informer’s identity . . . is relevant and helpful to the
defense of the accused, or is essential to a fair determination of [the
defendant’s] cause.” Roviaro v. United States, 353 U.S. 53,
62 (1957).
The decision whether to hold an in camera
hearing regarding disclosure of the informant’s identity is reviewed for an
abuse of discretion. See Henderson, 241 F.3d at 646; United States v. Amador‑Galvan, 9
F.3d 1414, 1417 (1993).
The district court’s refusal to give an
informant credibility jury instruction is also reviewed for an abuse of
discretion. See United States v.
Holmes, 229 F.3d 782, 786 (9th Cir. 2000).
The trial court’s decision whether to
consolidate counts is reviewed de novo. See
United States v. Douglass, 780 F.2d
1472, 1477 (9th Cir. 1986)
(rejecting abuse of discretion standard).
The district court’s order that two indictments be tried together is
reviewed, however, for an abuse of discretion.
See United States v. Nguyen, 88 F.3d 812,
815 (9th Cir. 1996).
A district court’s decision to grant or deny
a motion for a continuance is reviewed for an abuse of discretion. See United States v. Walter-Eze, 869 F.3d
891, 907 (9th Cir. 2017) (noting that broad discretion must be given to trial
courts on matters of continuances); United
States v. Wilkes, 662 F.3d 524, 543 (9th Cir. 2011); United States v. Kloehn, 620 F.3d 1122,
1126-27 (9th Cir. 2010);
United States v. Nguyen, 262 F.3d 998,
1002 (9th Cir. 2001)
(listing factors for appellate court to consider); United States v. Garrett, 179 F.3d 1143,
1144-45 (9th Cir. 1999)
(en banc) (reaffirming that abuse of discretion is proper standard of review to
review “a district court’s ruling granting or denying a motion for a
continuance”). “To reverse a trial
court’s denial of a continuance, an appellant must show that the denial
prejudiced [the] defense.” United States v. Gonzalez-Rincon, 36
F.3d 859, 865 (9th Cir. 1994);
see also Wilkes, 662 F.3d at 543. “Reversal is merited “if ‘after carefully
evaluating all relevant factors,’ [the court] conclude[s] that ‘the denial was
arbitrary or unreasonable.’” United States v. Rivera-Guerrero, 426
F.3d 1130, 1138 (9th Cir. 2005)
(quoting United States v. Flynt, 756 F.2d 1352,
1358 (9th Cir. 1985));
see also Wilkes, 662 F.3d at 543. The court considers four factors: the extent
of the appellant’s diligence in readying his or her defense prior to the set
hearing date, the likelihood that the need for the continuance could have been
met had the district court granted the continuance, the inconvenience
potentially caused by granting the continuance, and the extent of the harm the
appellant might have suffered as a result of the denial. See Kloehn, 620 F.3d at 1127
(citing Flynt, 756 F.2d at 1359-61); Rivera-Guerrero, 426 F.3d at 1138-39
(citing Flynt, 756 F.2d at 1359).
A trial court’s refusal to grant a
continuance of a sentencing hearing is also reviewed for an abuse of
discretion. See United States v. Lewis, 991 F.2d 524,
528 (9th Cir. 1993);
United States v. Monaco, 852 F.2d 1143,
1150 (9th Cir. 1988).
The district court’s decision to preclude a
defendant’s proffered defense is reviewed de novo. See United States v.
Ibarra-Pino, 657 F.3d 1000, 1003 (9th Cir. 2011); United States v. Forrester, 616 F.3d
929, 934 (9th Cir. 2010);
United States v. Vasquez-Landaver, 527
F.3d 798, 802 (9th Cir. 2008)
(duress); United States v. Biggs, 441 F.3d 1069,
1070 n.1 (9th Cir. 2006);
United States v. Batterjee, 361 F.3d
1210, 1216 (9th Cir. 2004)
(entrapment defense); United States v. Ross, 206 F.3d 896, 898
(9th Cir. 2000)
(granting motion in limine to preclude presentation of a defense).[9] Thus, the district court’s failure to
instruct on an appropriate defense theory is a question of law reviewed de
novo. See United States v.
Crandall, 525 F.3d 907, 911 (9th
Cir. 2008); United States v.
Sayakhom, 186 F.3d 928, 939-40 (9th
Cir.), amended by 197 F.3d 959 (9th
Cir. 1999);
United States v. McGeshick, 41 F.3d 419,
421 (9th Cir. 1994). Whether the court’s instructions adequately
cover the defendant’s proffered defense is also reviewed de novo. See United States v.
Pierre, 254 F.3d 872, 875 (9th Cir. 2001)
(lesser-included-offense). Whether a
defendant has made the required factual foundation to support a requested jury
instruction is reviewed, however, for an abuse of discretion. See United States v.
Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011); United States v. Bush, 626 F.3d 527, 539
(9th Cir. 2010);
United States v. Daane, 475 F.3d 1114,
1119 (9th Cir. 2007);
United States v. Bello-Bahena, 411 F.3d
1083, 1090 (9th Cir. 2005);
see also United States v.
Perdomo-Espana, 522 F.3d 983, 986 (9th Cir. 2008)
(explaining various standards of review depending on focus of inquiry). Whether a challenged jury instruction
precludes an adequate presentation of the defense theory of the case is
reviewed de novo. See United States v.
Iverson, 162 F.3d 1015, 1022 (9th Cir. 1998). Finally, a determination that a defendant has
the burden of proving a defense is reviewed de novo. See United States v.
Beasley, 346 F.3d 930, 933 (9th Cir. 2003); United States v. McKittrick, 142 F.3d
1170, 1177 (9th Cir. 1998);
see also United States v.
Sandoval-Gonzalez, 642 F.3d 717, 721 (9th Cir. 2011).
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 42.
Preclusion of Proffered Defense.
A district
court’s discovery rulings are reviewed for an abuse of discretion. See United States v. Soto-Zuniga, 837 F.3d
992, 998 (9th Cir. 2016); United
States v. Mitchell, 502 F.3d 931, 964 (9th Cir. 2007); United States v. Shryock, 342 F.3d 948,
983 (9th Cir. 2003);
United States v. Arenas-Ortiz, 339 F.3d
1066, 1069 (9th Cir. 2003)
(denying discovery on claim that prosecution violated equal protection). An order limiting the scope of discovery is
reviewed for an abuse of discretion. See United States v.
Candia‑Veleta, 104 F.3d 243, 246 (9th Cir. 1996); United States v. Gomez‑Lopez, 62
F.3d 304, 306‑07 (9th Cir. 1995).
“To reverse a conviction for a discovery
violation, we must find not only that the district court abused its discretion,
but that the error resulted in prejudice to substantial rights.” United States v. Amlani, 111 F.3d 705,
712 (9th Cir. 1997)
(internal quotations and citation omitted). “To justify reversal of a sanction
for a discovery violation, the defendant must show a likelihood that the
verdict would have been different had the government complied with the discovery
rules.” United States v. de Cruz, 82 F.3d 856, 866 (9th Cir. 1996)
(internal quotations and citation omitted).
The district court’s discovery rulings under Fed. R. Crim. P. 16 are reviewed for an abuse of discretion. See United States v. Soto–Zuniga, 837 F.3d 992, 998 (9th Cir. 2016) (“We review discovery rulings for abuse of discretion.”); United States v. Danielson, 325 F.3d 1054, 1074 (9th Cir. 2003); United States v. Mandel, 914 F.2d 1215, 1219 (9th Cir. 1990). The district court’s interpretation of Rule 16, however, is reviewed de novo. See Mandel, 914 F.2d at 1219; United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002). The scope of the district court’s authority under Rule 16 is also reviewed de novo. See United States v. Gonzalez‑Rincon, 36 F.3d 859, 864 (9th Cir. 1994); but see United States v. Chon, 210 F.3d 990, 994 (9th Cir. 2000) (discussing scope of Rule 16(a)(1)(c) but applying abuse of discretion standard). The court’s conclusion on Rule 16 “materiality” is reviewed, however, for an abuse of discretion. See United States v. Santiago, 46 F.3d 885, 894 (9th Cir. 1995). The propriety of excluding evidence as a sanction under Rule 16 is reviewed for an abuse of discretion. See Finley, 301 F.3d at 1007.
Denial of a
motion to depose a witness pursuant to Fed. R. Crim. P. 15 is
reviewed for abuse of discretion. See United States v.
Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011); United States v.
Olafson, 213 F.3d 435, 442-43 (9th Cir. 2000); United States v. Omene, 143 F.3d 1167,
1170 (9th Cir. 1998).
A district court’s denial of a discovery
motion made pursuant to the Jencks Act is reviewed for an abuse of discretion. See United States v.
Alvarez, 358 F.3d 1194, 1210 (9th Cir. 2004); United States v. Shryock, 342 F.3d 948,
983 (9th Cir. 2003);
United States v. Guagliardo, 278 F.3d
868, 871 (9th Cir. 2002).
The district court’s decision regarding the
imposition of sanctions for a Jencks Act violation is reviewed for an abuse of
discretion. See United States v.
Cardenas-Mendoza, 579 F.3d 1024, 1031 (9th Cir. 2009); United States v.
McKoy, 78 F.3d 446, 449 (9th Cir. 1996). A conviction will be affirmed if the “Jencks
error is more than likely harmless.” United States v. Brumel‑Alvarez,
991 F.2d 1452, 1457 (9th Cir. 1992);
United States v. Span, 970 F.2d 573, 582
(9th Cir. 1992);
see also Cardenas-Mendoza, 579 F.3d at 1031(“an
erroneous decision not to impose sanctions under the Jencks Act [is reviewed]
for harmless error”); United States v. Alvarez, 86 F.3d 901, 907 (9th Cir. 1996) (harmless error doctrine applies to Jencks
Act violations).
Discovery sanctions are generally reviewed
for an abuse of discretion. See United States v.
Fernandez, 231 F.3d 1240, 1245 (9th Cir. 2000); United States v. Scholl, 166 F.3d 964,
972 (9th Cir. 1999). Whether the district court had any legal
basis for its discovery order is reviewed de novo, but if it did, then the
court’s imposition of sanctions is reviewed for an abuse of discretion. See Fernandez, 231 F.3d at 1245; see also United States v. Finley, 301 F.3d 1000,
1007 (9th Cir. 2002);
United States v. Jennings, 960 F.2d
1488, 1490 (9th Cir. 1992). The trial court’s decision to impose
sanctions for a Jencks Act violation is reviewed for an abuse of
discretion. See United States v.
McKoy, 78 F.3d 446, 448 (9th Cir. 1996).
The district court’s conclusion that specific
attorney conduct violated local rules is reviewed de novo. See United States v.
Carona, 660 F.3d 360, 364 (9th Cir. 2011); United States v. Lopez, 4 F.3d 1455,
1458 (9th Cir. 1993). The court’s findings of fact in support of
its imposition of sanctions are reviewed for clear error. See Lopez, 4 F.3d at 1458. To reverse a conviction for a discovery
violation, this court must determine not only that the district court abused its
discretion, but also that the error resulted in prejudice to substantial
rights. See United States v.
Mitchell, 502 F.3d 931, 964 (9th Cir. 2007); United States v.
Amlani, 111 F.3d 705, 712 (9th Cir. 1997); United States v. de Cruz, 82 F.3d 856, 866 (9th Cir. 1996).
Absent a prima facie showing of
discrimination based on suspect characteristics, i.e., race, religion, or gender, a court may not review a
prosecutor’s decision to charge a particular defendant. See United States v.
Nelson, 137 F.3d 1094, 1105 (9th Cir. 1998); United States v.
Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996). “These are essentially factual determinations
which [are] review[ed] for clear error.” United States v. Estrada-Plata, 57 F.3d
757, 760 (9th Cir. 1995);
Bauer, 84 F.3d at 1560
(applying clear error); United States v. Davis, 36 F.3d 1424,
1432 (9th Cir. 1994)
(same).
However, this court noted that, “[i]n reviewing a selective
prosecution claim, this circuit has employed both a de novo and a clear error
standard.” United States v. Sutcliffe, 505 F.3d
944, 954 (9th Cir. 2007)
(electing not to resolve conflict).
The district court decision to dismiss an
indictment based on a claim of selective prosecution is reviewed for clear
error. See Bauer, 84 F.3d at 1560.
The court’s ruling on a motion for discovery
relating to a claim of discriminatory prosecution is reviewed for an abuse of
discretion. See United States v.
Turner, 104 F.3d 1180, 1185 (9th Cir. 1997); United States v. Candia‑Veleta,
104 F.3d 243, 246 (9th Cir. 1996). The court’s ruling on the scope of discovery
for a selective prosecution claim is also reviewed for an abuse of
discretion. See Candia-Veleta, 104 F.3d at 246. Discovery should be permitted when the
defendant is able to offer “some evidence tending to show the existence of the
discriminatory effect element.” United States v. Armstrong, 517 U.S.
456, 469 (1996)
(reversing Ninth Circuit’s en banc decision at 48 F.3d 1508, 1512
(9th Cir. 1995)).
Generally,
dismissal of an indictment based on legal error is reviewed de novo; dismissal based
on discretionary authority is reviewed for an abuse of discretion. See
United States v.
Brobst, 558 F.3d 982, 994 (9th Cir. 2009)
(supervisory powers); United States v.
Barrera‑Moreno, 951 F.2d 1089, 1091 (9th Cir. 1991); but see United States v.
Miller, 4 F.3d 792, 794 (9th Cir. 1993)
(electing not to decide appropriate standard to be applied to dismissal based
on supervisory powers).
The denial of a motion to dismiss based on a
violation of constitutional rights is reviewed de novo. See Brobst, 558 F.3d at 994
(due process); United States v. Reveles-Espinoza, 522
F.3d 1044, 1047 (9th Cir. 2008)
(due process); United States v. Gastelum-Almeida, 298
F.3d 1167, 1174 (9th Cir. 2002)
(failure to retain a witness); United States v.
Ziskin, 360 F.3d 934, 942-43 (9th Cir. 2003)
(double jeopardy);United States v. Hinojosa-Perez, 206
F.3d 832, 835 (9th Cir. 2000)
(motion to dismiss an information).[10]
The district court’s decision whether to
dismiss an indictment based on its interpretation of a federal statute is also
reviewed de novo. See, e.g., United States v. Olander, 572 F.3d 764,
766 (9th Cir. 2009);
United States v. W.R. Grace, 504 F.3d
745, 751 (9th Cir. 2007)
(18 U.S.C. § 3288); United States v. Gorman, 314 F.3d 1105,
1110 (9th Cir. 2002)
(Speedy Trial Act); United States v. Boren, 278 F.3d 911,
913 (9th Cir. 2002)
(18 U.S.C. § 1014); United States v. Gomez‑Rodriguez,
96 F.3d 1262, 1264 (9th Cir. 1996)
(en banc).
The trial court’s findings of fact with
regard to a motion to dismiss are reviewed for clear error. See United States v.
Camacho-Lopez, 450 F.3d 928, 929 (9th Cir. 2006); Hinojosa-Perez, 206 F.3d at 835.
Whether to dismiss an indictment to remedy a
violation of recognized rights, to deter illegal conduct, or to preserve
judicial integrity is an exercise of the district court’s supervisory powers
reviewed for an abuse of discretion. See United States v.
Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000); United States v. Garza‑Juarez, 992
F.2d 896, 905 (9th Cir. 1993).
Thus, the trial court’s decision on a defendant’s motion to dismiss for
impermissible preindictment or pre-accusation delay is reviewed for an abuse of
discretion. See United States v.
Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003); United States v. Mills, 280 F.3d 915,
920 (9th Cir. 2002);
United States v. Doe, 149 F.3d 945, 947
(9th Cir. 1998);
United States v. Huntley, 976 F.2d 1287,
1290 (9th Cir. 1992).
The dismissal of an indictment without
prejudice is reviewed for an abuse of discretion. United States v. Adrian, 978 F.2d 486,
493 (9th Cir. 1992),
overruled in part on other grounds by United States v.
W.R. Grace, 526 F.3d 499, 506 (9th Cir. 2008)
(en banc).
A district court’s ruling on the government’s
motion for leave to dismiss filed pursuant to Fed. R. Crim. P. 48(a) is
reviewed for abuse of discretion, although the court’s discretion to deny leave
is limited. See United States v.
Garcia-Valenzuela, 232 F.3d 1003, 1007 (9th Cir. 2000); United States v. Gonzalez, 58 F.3d 459,
461 (9th Cir. 1995)
(“there is a question as to whether a district court may ever deny an
uncontested Rule 48(a) motion”).
The court’s decision to dismiss pursuant to
Rule 48(b) for preindictment delay and pretrial delay is also limited and
reviewed only for an abuse of discretion; however, dismissal “should be imposed
only in extreme circumstances,” especially when the dismissal is with
prejudice. See United States v. Jiang, 214 F.3d 1099,
1101 (9th Cir. 2000);
United States v. Talbot, 51 F.3d 183,
186 (9th Cir. 1995).
The district court’s ruling on a motion to
dismiss for noncompliance with the Speedy Trial Act is reviewed de novo. See United States v.
Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002); United States v. Symington, 195 F.3d
1080, 1090-91 (9th Cir. 1999);
United States v. Pena‑Carrillo, 46
F.3d 879, 882 (9th Cir. 1995). The decision whether to dismiss with or
without prejudice for a Speedy Trial Act violation is reviewed for an abuse of
discretion; the district court abuses its discretion when it “fail[s] to set
out relevant factual findings and to clearly articulate its application of
statutory factors to the facts of the case.” United States v. White, 864 F.2d 660,
661 (9th Cir. 1988)
(citing United States v. Taylor, 487 U.S. 326,
344 (1988)). However, before a district court can enter a
dismissal without prejudice, an
evidentiary hearing must be held; otherwise, the district court shall enter a
dismissal with prejudice. See United States v.
Delgado‑Miranda, 951 F.2d 1063, 1065 (9th Cir. 1991)
(per curiam).
The district court’s decision whether to
dismiss an indictment based on improper or outrageous government conduct is
reviewed de novo. See United States v.
Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011); United States v.
Jenkins, 504 F.3d 694, 699 (9th Cir. 2007); United States v.
Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003); United States v. Gurolla, 333 F.3d 944,
950 (9th Cir. 2003);
United States v. Edmonds, 103 F.3d 822,
825 (9th Cir. 1996);
cf. United States v.
Ross, 372 F.3d 1097, 1107 (9th Cir. 2004)
(even where no due process violation exists, reviewing district court’s refusal
to dismiss under abuse of discretion of its supervisory powers). The evidence is viewed, however, in the light
most favorable to the government, and the district court’s findings are
accepted unless clearly erroneous. See Gurolla, 333 F.3d at 950; United States v. Cuellar, 96 F.3d 1179,
1182 (9th Cir. 1996). The court’s decision whether to dismiss based
on allegations of prosecutorial misconduct before a grand jury is also reviewed
de novo. See United States v.
Fuchs, 218 F.3d 957, 964 (9th Cir. 2000); United States v. De Rosa, 783 F.2d 1401,
1404 (9th Cir. 1986);
see also United States v.
Pang, 362 F.3d 1187, 1194 (9th Cir. 2004)
(abuse of the grand jury process).
The denial of a motion to dismiss an
indictment for an alleged lack of jurisdiction is reviewed de novo. See United States v.
Phillips, 367 F.3d 846, 854 (9th Cir. 2004); United States v. Neil, 312 F.3d 419, 421
(9th Cir. 2002).
The district court’s refusal to dismiss for a violation of the Interstate Agreement on Detainers Act is reviewed de novo. United States v. Lualemaga, 280 F.3d 1260, 1263 (9th Cir. 2002).
A district court’s decision whether to
conduct an evidentiary hearing is generally reviewed for an abuse of
discretion. See Estrada v.
Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008) (habeas);
United States v. Saya, 247 F.3d 929, 934
(9th Cir. 2001)
(as amended) (jury misconduct); United States v. Chacon-Palomares, 208
F.3d 1157, 1158-60 (9th Cir. 2000).[11]
Note that in some instances the denial of a
motion for an evidentiary hearing is reviewed de novo. See United States v.
Meek, 366 F.3d 705, 716 (9th Cir. 2004) (Franks hearing); United States v. Chavez-Miranda, 306
F.3d 973, 979 (9th Cir. 2002)
(Franks hearing) ; United States v. Young, 86 F.3d 944, 947
(9th Cir. 1996)
(use immunity); cf. United States v.
Smith, 155 F.3d 1051, 1063 n.18 (9th Cir. 1998)
(refusing to extend Young to
suppression hearing).
The district court’s timing of an evidentiary
hearing is reviewed for an abuse of discretion.
See United States v.
Montilla, 870 F.2d 549, 551 (9th Cir. 1989), amended by 907 F.2d 115 (9th
Cir. 1990). The court’s decision regarding the scope of
an evidentiary hearing is also reviewed for an abuse of discretion. See United States v.
Hernandez, 322 F.3d 592, 600 n.8 (9th Cir. 2003).
A trial court’s decision to conduct an ex
parte hearing is reviewed for an abuse of discretion. See United States v.
Wills, 88 F.3d 704, 711 (9th Cir. 1996)
(court did not abuse its discretion); United States v. Thompson, 827 F.2d
1254, 1260‑61 (9th Cir. 1987)
(court abused its discretion).
Whether a sentence violates the prohibition
in Article I of the United States Constitution against ex post facto laws is
reviewed de novo. See Hunter v. Ayers, 336 F.3d 1007, 1011 (9th Cir. 2003) (habeas);
see also United States v. Forrester, 616 F.3d
929, 934 (9th Cir. 2010); United States v.
Staten, 466 F.3d 708, 713 (9th Cir. 2006); United States v. Ortland, 109 F.3d 539,
543 (9th Cir. 1997). A district court’s ruling that the ex post
facto clause was not violated is also reviewed de novo. United States v. Canon, 66 F.3d 1073,
1077 (9th Cir. 1995);
United States v. Walker, 27 F.3d 417,
419 (9th Cir. 1994).
Whether a valid
extradition treaty exists is a question of law reviewed de novo. See United States v. Merit, 962 F.2d 917,
919 (9th Cir. 1992);
Arnbjornsdottir‑Mendler v. United
States, 721 F.2d 679, 681 (9th
Cir. 1983). Whether such an extradition treaty is in
force is a legal question subject to de novo review. See United States v.
Tuttle, 966 F.2d 1316, 1316 (9th Cir. 1992). Whether the district court had jurisdiction
if the treaty was violated is reviewed de novo.
See United States v.
Struckman, 611 F.3d 560, 571 (9th Cir. 2010); United States v. Anderson, 472 F.3d 662,
666 (9th Cir. 2006). Interpretations of extradition treaties are
reviewed de novo. See Manta v. Chertoff, 518 F.3d 1134, 1141 (9th Cir. 2008); United States v. Lazarevich, 147 F.3d
1061, 1063 (9th Cir. 1998);
Clarey v. Gregg, 138 F.3d 764, 765 (9th
Cir. 1998).
Whether an offense comes within an
extradition treaty requires a determination of whether the offense is listed as
an extraditable crime and whether the conduct is illegal in both
countries. Both are questions of law
reviewed de novo. See Anderson, 472 F.3d at 666; United States v. Van Cauwenberghe, 827
F.2d 424, 428 (9th Cir. 1987);
Quinn v. Robinson, 783 F.2d 776, 791‑92
(9th Cir. 1986);
see also Santos v. Thomas, 830 F.3d 987, 1001
(9th Cir. 2016)
(en banc) (reviewing the extradition
court’s legal rulings de novo). “We
review de novo whether extradition of a defendant satisfies the doctrines of ‘dual
criminality’ and ‘specialty.’” United States v. Khan, 993 F.2d 1368,
1372 (9th Cir. 1993);
see also Anderson, 472 F.3d at 666. A district court’s analysis of foreign law is
reviewed de novo. See United States v.
Fowlie, 24 F.3d 1059, 1064 (9th Cir. 1994).
Factual determinations made by the
extradition tribunal will be reviewed under the clearly erroneous standard of
review. See Santos v. Thomas, 830 F.3d 987, 1001
(9th Cir. 2016)
(en banc) (reviewing the extradition court’s findings of fact for clear error);
Vo v. Benov, 447 F.3d 1235, 1240 (9th Cir. 2006); Oen Yin‑Choy v. Robinson, 858 F.2d
1400, 1405 (9th Cir. 1988);
Quinn, 783 F.2d at 792. Denials of requests for discovery in
extradition matters are reviewed for an abuse of discretion. See Prasoprat v. Benov, 421 F.3d 1009, 1014 (9th Cir. 2005).
The scope of habeas review of an extradition
order is limited. See Prasoprat, 421 F.3d at 1013. Factual findings made by a magistrate judge
in an extradition proceeding are reviewed for clear error. See Sainez v. Venables, 588 F.3d 713, 715 (9th Cir. 2009); Vo, 447 F.3d at 1240. A probable cause finding must be upheld if
there is any competent evidence in the record to support it. See Prasoprat, 421 F.3d at 1013-15. See also Santos v. Thomas, 830 F.3d 987, 1001
(9th Cir. 2016)
(en banc) (magistrate’s probably cause finding must be upheld if there is any
competent evidence to support it).
Faretta v.
California, 422 U.S. 806, 835 (1975), states that before a district court may grant a
defendant’s request to proceed pro se, there must be a showing that the
defendant “knowingly and intelligently” waived the right to counsel. The validity of a Faretta waiver is a mixed question of law and fact reviewed de
novo. See United States v.
French, 748 F.3d 922, 929 (9th Cir. 2014); United States v. Moreland, 622 F.3d
1147, 1156 (9th Cir. 2010);
United States v. Erskine, 355 F.3d 1161, 1166 (9th Cir. 2004); United States v. Lopez-Osuna, 242 F.3d
1191, 1198 (9th Cir. 2000). This is so “even where the defendant failed
to raise the issue of the validity of the Faretta waiver to the
district court.” United States v. Neal, 776 F.3d 645, 657
(9th Cir. 2015)
(“We review whether a Faretta waiver
satisfied these requirements de novo, even where the defendant failed to raise the issue of the
validity of the Faretta waiver to the
district court.”). See also United States v.
Brugnara, 856 F.3d 1198, 1212 (9th Cir. 2017), cert. denied,
No. 17-6057, 2017
WL 4181065 (Oct. 30, 2017)
(discussing defendant’s right to represent himself).
Factual findings supporting the district court’s
decision are reviewed for clear error. See Burton v. Davis, 816 F.3d 1132, 1159 (9th
Cir. 2016) (reviewing “a
district court’s determination that a Faretta motion was
not a delay tactic for clear error.”); United States
v. George, 56 F.3d
1078, 1084 (9th Cir. 1995); United States v. Kienenberger, 13 F.3d
1354, 1356 (9th Cir. 1994).
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 50.
Representation, e. Pro Se Representation.
The district court’s refusal to conduct a Franks hearing is reviewed de novo. See United States v. Barragan, 871 F.3d 689,
701 (9th Cir. 2017); United
States v. Flyer, 633 F.3d 911, 916 (9th Cir. 2011); United States v. Napier, 436 F.3d 1133,
1136 (9th Cir. 2006);
United States v. Meek, 366 F.3d 705, 716
(9th Cir. 2004);
United States v. Shryock, 342 F.3d 948,
975 (9th Cir. 2003). The court’s underlying factual findings are
reviewed for clear error. See Meek, 366 F.3d at 716; Shryock, 342 F.3d at 975; see also United States v.
Christie, 825 F.3d 1048, 1069 (9th Cir. 2016)
(reviewing “for clear error the district
court’s underlying finding that the government did not intentionally or
recklessly make false statements”).
A district court’s “ultimate” conclusion
whether a defendant is a fugitive or is “fleeing from justice” is reviewed de
novo.
See Man-Seok Choe v.
Torres, 525 F.3d 733, 741 (9th Cir. 2008)
(habeas); United States v. Fowlie, 24 F.3d 1070,
1072 (9th Cir. 1994). The court’s factual findings underlying that determination
are reviewed under the clearly erroneous standard. See Man-Seok, 525 F.3d at 741; Fowlie, 24 F.3d at 1072; United States v.
Gonsalves, 675 F.2d 1050, 1052 (9th Cir. 1982). Whether an appeal should be dismissed under
the fugitive disentitlement doctrine is a matter of discretion vested with the
appellate court. See
United States v.
Plancarte-Alvarez, 366 F.3d 1058, 1064 (9th Cir. 2004), amended on denial of rehearing by 449 F.3d 1059 (9th
Cir. 2006);
United States v. Parretti, 143 F.3d 508,
510 (9th Cir. 1998)
(en banc) (dismissing appeal).
The district court’s refusal to dismiss an
indictment based on alleged instructional errors to the grand jury is reviewed
de novo. See United States v. Marcucci, 299 F.3d 1156, 1158 (9th Cir. 2002) (per
curiam); see also United States v.
Inzunza, 638 F.3d 1006, 1016 (9th Cir. 2011). The court’s decision whether to dismiss an
indictment because of prosecutorial misconduct before a grand jury is reviewed
de novo. See United States v.
Fuchs, 218 F.3d 957, 964 (9th Cir. 2000); see also United States v.
Pang, 362 F.3d 1187, 1194 (9th Cir. 2004)
(reviewing alleged governmental abuse of grand jury proceedings). Note that errors in the grand jury indictment
procedures are subject to harmless error review “unless the structural
protections of the grand jury have been compromised.” See United States v.
Du Bo, 186 F.3d 1177, 1180 n.1 (9th Cir. 1999); United States v. Oliver, 60 F.3d 547,
549 (9th Cir. 1995); see also United States v.
Salazar-Lopez, 506 F.3d 748, 752-56 (9th Cir. 2007).
The district court’s denial of a defendant’s
motion to disclose grand jury testimony is reviewed for an abuse of
discretion. See United States v. Mincoff, 574 F.3d 1186,
1192 (9th Cir. 2009);
United States v. Nash, 115 F.3d 1431,
1440 (9th Cir. 1997);
United States v. Perez, 67 F.3d 1371,
1380 (9th Cir. 1995),
withdrawn in part on other grounds, 116 F.3d 840 (9th
Cir. 1997)
(en banc). The court’s resolution of a
petition for disclosure of grand jury materials pursuant to Fed. R. Crim. P. 6(e) is
reviewed for an abuse of discretion. See In re Grand Jury
Proceedings, 62 F.3d 1175, 1178 (9th Cir. 1995). The denial of a motion to quash a grand jury
subpoena is reviewed for an abuse of discretion. See In re Grand Jury
Subpoena, 357 F.3d 900, 906 (9th Cir. 2004).
A court’s imposition of contempt sanctions
related to grand jury proceedings is also reviewed for an abuse of
discretion. See In re Grand Jury
Proceedings, 40 F.3d 959, 961 (9th Cir. 1994)
(refusal to sign disclosure directive); In re Grand Jury Proceedings, 33 F.3d 1060, 1061 (9th Cir. 1994) (per
curiam) (refusal to produce records); In re Grand Jury Proceedings, 9 F.3d
1389, 1390 (9th Cir. 1993)
(refusal to testify).
The adequacy of a Rule 11 plea hearing is
reviewed de novo. See United States v. Alvarez, 835 F.3d 1180,
1188 (9th Cir. 2016), cert. denied,
137 S. Ct. 1389
(2017); United States v.
Pacheco-Navarette, 432 F.3d 967, 969 (9th Cir. 2005); United States v.
Villalobos, 333 F.3d 1070, 1073 (9th Cir. 2003); United States v. Pena, 314 F.3d 1152,
1155 (9th Cir. 2003). Whether the trial court’s colloquy with the
defendant satisfies the requirements of Rule 11 is also reviewed de novo. See United States v.
Ross, 511 F.3d 1233, 1235 (9th Cir. 2008); United States v.
Barragan-Espinoza, 350 F.3d 978, 981 (9th Cir. 2003); United States v. King, 257 F.3d 1013,
1021 (9th Cir. 2001);
see also United States v.
Barrios-Gutierrez, 255 F.3d 1024, 1027-28 (9th Cir. 2001)
(en banc) (discussing Rule 11’s requirements).
When
a defendant fails to object, this court’s review is limited to plain error. See United States v.
Carter, 795 F.3d 947, 950 (9th Cir. 2015) (applying “only plain error review when a defendant
appeals based on an unobjected-to Rule 11 procedural
violation); United States v. Benitez, 542 U.S. 74,
83 (2004)
(noting defendant’s burden); United States v. Vonn, 535 U.S. 55, 58
(2002);
Ross, 511 F.3d at 1235; United States v. Monzon, 429 F.3d 1268,
1271 (9th Cir. 2005). The appellate court may review, however, “the
entire record, from the defendant’s first appearance to his plea
colloquy.” United States v. Vonn, 294 F.3d 1093,
1093-94 (9th Cir. 2002)
(on remand).
The voluntariness of a guilty plea is subject
to de novo review. See United States v.
Forrester, 616 F.3d 929, 934 (9th Cir. 2010); United States v. Gaither, 245 F.3d 1064,
1068 (9th Cir. 2001);
United States v. Kaczynski, 239 F.3d
1108, 1114 (9th Cir. 2001);
United States v. Kikuyama, 109 F.3d 536,
537 (9th Cir. 1997);
see also Sanchez v. United
States, 50 F.3d 1448, 1454 (9th Cir. 1995)
(habeas). Although the court reviews de novo whether a defendant entered a plea knowingly and voluntarily, the
court applies “only plain error review when a defendant appeals based on an
unobjected-to Rule 11 procedural violation.”
United States v. Carter, 795 F.3d 947,
950 (9th Cir. 2015)
(citation omitted).
A district court’s decision whether to grant a motion
for withdrawal of a guilty plea is reviewed for an abuse of discretion. See United States v.
Yamashiro, 788 F.3d 1231, 1236 (9th Cir. 2015) (reviewing district court’s denial of a motion to
withdraw a guilty plea for abuse of discretion); United States v.
Briggs, 623 F.3d 724, 727 (9th Cir. 2010); United States v. Showalter, 569 F.3d
1150, 1154 (9th Cir. 2009);
United States v. Ross, 511 F.3d 1233,
1235 (9th Cir. 2008);
United States v. Jones, 472 F.3d 1136,
1140-41 (9th Cir. 2007);
United States v. Reyna-Tapia, 328 F.3d
1114, 1117 (9th Cir. 2003)
(en banc) (applying “fair and just” standard); United States v. Nostratis, 321 F.3d
1206, 1208 (9th Cir. 2003);
United States v. Ruiz, 257 F.3d 1030, 1032-33
(9th Cir. 2001)
(en banc) (clarifying that “fair and just” rather than “manifest injustice”
standard should be applied by district court).
“[T]he decision to grant immunity to
prospective defense witnesses is left to the discretion of the executive
branch.” United States v. Mendia, 731 F.2d 1412,
1414 (9th Cir. 1984). Informal immunity agreements are reviewed
under ordinary contract law principles: factual determinations are reviewed for
clear error; whether the government has breached the agreement is a question of
law reviewed de novo. See United States v.
Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995); United States v. Gamez-Orduno, 235 F.3d
453, 465 (9th Cir. 2000)
(reviewing immunity agreement de novo).
The denial of a Kastigar hearing is reviewed for an abuse of discretion. See Dudden, 65 F.3d at 1468; but see United States v.
Young, 86 F.3d 944, 947 (9th Cir. 1996)
(district court’s denial of a defense motion for an evidentiary hearing on use
immunity raises mixed questions of fact and law reviewed de novo).
The district court’s finding that the
government’s evidence was not tainted by a grant of use immunity is reviewed
under the clearly erroneous standard. See
United States v. Montoya, 45
F.3d 1286, 1291 (9th Cir. 1995). Whether the government has violated its
obligation to disclose immunity agreements with a prosecution witness is a
question of law reviewed de novo. See
United States v. Cooper, 173 F.3d 1192,
1203 (9th Cir. 1999). Whether a district court erred by refusing to
compel the government to grant immunity to a defense witness is a mixed
question of law and fact reviewed de novo.
See United States v
Wilkes, 662 F.3d 524, 532 (9th Cir. 2011); United States v. Alvarez, 358 F.3d 1194,
1216 (9th Cir. 2004). Underlying factual findings are reviewed for
clear error. See Wilkes, 662 F.3d at 532; Alvarez, 358 F.3d at 1216.
The trial court’s decision whether to conduct
an in camera proceeding is reviewed for an abuse of discretion. See United States v.
Alvarez, 358 F.3d 1194, 1208 (9th Cir. 2004); United States v.
Henderson, 241 F.3d 638, 646 (9th Cir. 2000); United States v. Chen, 99 F.3d 1495,
1502 (9th Cir. 1996)
(crime fraud exception). When there is
no objection to in camera proceedings, review is for plain error. See United States v.
Cazares, 788 F.3d 956, 966 (9th Cir. 2015), cert. denied, 136 S. Ct. 2484
(2016). The decision to seal documents is reviewed
for an abuse of discretion. United States v. Shryock, 342 F.3d 948,
983 (9th Cir. 2003);
United States v. Mann, 829 F.2d 849, 853
(9th Cir. 1987).
Whether the court erred by not allowing
defense counsel to participate in an in camera proceeding is reviewed for an
abuse of discretion. See United States v.
Fowlie, 24 F.3d 1059, 1066 (9th Cir. 1994). The court’s decision regarding the scope of
in camera review of privileged documents, however, is a mixed question of law
and fact and is reviewed de novo. See
In re Grand Jury
Subpoena 92‑1(SJ), 31 F.3d 826, 829 (9th Cir. 1994).
Whether an indictment was constructively amended is reviewed de
novo. See United States v.
Davis, 854 F.3d 601, 603 (9th Cir. 2017); United States v.
Lazarenko, 564 F.3d 1026, 1034 (9th Cir. 2009); United States v.
Pang, 362 F.3d 1187, 1193 (9th Cir. 2004)
(information); United States v. Shryock, 342 F.3d 948,
988 (9th Cir. 2003);
United States v. Adamson, 291 F.3d 606,
612 (9th Cir. 2002). When the defendant fails to object, review is
limited to plain error. See United States v.
Shipsey, 190 F.3d 1081, 1085 (9th Cir. 1999).
See
II. Criminal Proceedings, B. Pretrial Decisions, 13. Dismissals.
Whether an indictment is multiplicitous –
charging a single offense in more than one count – is reviewed de novo. See United States v.
Wahchumwah, 710 F.3d 862, 866 (9th Cir. 2013); United States v.
Brooks, 610 F.3d 1186, 1194 (9th Cir. 2010); United States v. Vargas-Castillo, 329
F.3d 715, 718-19 (9th Cir. 2003);
United States v. McKittrick, 142 F.3d
1170, 1176 (9th Cir. 1998). Whether an indictment is duplicitous –
charging more than one violation in each count – is reviewed de novo. See United
States v. Martin, 4 F.3d 757, 759 (9th Cir. 1993) (duplicitous); United States v. Yarborough, 852 F.2d
1522, 1530 (9th Cir 1988).
The court’s decision not to dismiss an allegedly duplicitous indictment is
reviewed de novo. See United
States v. Ramirez-Martinez, 273 F.3d 903, 913 (9th Cir.2001), overruled
in part on other grounds by United States v. Lopez, 484 F.3d 1186,
1191 (9th Cir. 2007)
(en banc).
Misjoinder of charges under Fed. R. Crim. P. 8(a) is an
issue of law reviewed de novo. See United States v.
Prigge, 830 F.3d 1094, 1098 (9th Cir. 2016), cert. denied, 137 S. Ct. 697
(2017); United States v.
Jawara, 474 F.3d 565, 572 (9th Cir. 2007); United States v. VonWillie, 59 F.3d 922,
929 (9th Cir. 1995);
United States v. Sanchez‑Lopez,
879 F.2d 541 (9th Cir. 1989)
(distinguishing between Rule 8(a) and 8(b)).
Misjoinder of defendants under Fed. R. Crim. P. 8(b) is
also a question of law reviewed de novo.
See United States v. Sarkisian, 197 F.3d
966, 975 (9th Cir. 1999);
United States v. Golb, 69 F.3d 1417,
1425 (9th Cir. 1995); United States v.
Vasquez‑Velasco, 15 F.3d 833, 843 (9th Cir. 1994). Improper joinder is subject to harmless error
review – reversal is required only if
misjoinder results in actual prejudice because it had a “substantial and
injurious effect or influence in determining the jury’s verdict.” United States v. Lane, 474 U.S. 438, 449
(1986). See
also Prigge, 830 F.3d at 1098
(“Reversal for improper joinder under Rule 8(a) is appropriate only if the
defendant can show actual prejudice.”).
The district court’s order that two
indictments be tried together under Fed. R. Crim. P. 13 is
reviewed for an abuse of discretion. See United States v.
Nguyen, 88 F.3d 812, 815 (9th Cir. 1996).
The district court’s decision whether to dismiss an indictment based on
improper or outrageous government conduct is reviewed de novo. See United States v.
Pedrin, 797 F.3d 792, 795 (9th Cir. 2015), cert. denied, 136 S. Ct. 2401,
(2016); United States v.
Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011); United States v.
Struckman, 611 F.3d 560, 573 (9th Cir. 2010); United States v.
Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003); United States v. Gurolla, 333 F.3d 944,
950 (9th Cir. 2003);
United States v. Edmonds, 103 F.3d 822,
825 (9th Cir. 1996);
cf. United States v.
Ross, 372 F.3d 1097, 1107 (9th Cir. 2004)
(even where no due process violation exists, reviewing district court’s refusal
to dismiss under abuse of discretion of its supervisory powers). The evidence is viewed, however, in the light
most favorable to the government, and the district court’s findings are
accepted unless clearly erroneous. See Struckman, 611 F.3d at 573; Gurolla, 333 F.3d at 950; United States v. Cuellar, 96 F.3d 1179,
1182 (9th Cir. 1996).
Allegations of prosecutorial misconduct before a grand jury are also
reviewed de novo. See United States v.
Fuchs, 218 F.3d 957, 964 (9th Cir. 2000); United States v. De Rosa, 783 F.2d 1401,
1404 (9th Cir. 1986);
see also United States v.
Harmon, 833 F.3d 1199, 1203 (9th Cir. 2016); United States v. Pang, 362 F.3d 1187,
1194 (9th Cir. 2004)
(abuse of the grand jury process).
A district court’s refusal to disqualify the prosecutor is reviewed for
an abuse of discretion. See United States v.
Kahre, 737 F.3d 554, 565 (9th Cir. 2013); United States v.
Davis, 932 F.2d 752, 763 (9th Cir. 1991); United States v. Plesinski, 912 F.2d
1033, 1035 (9th Cir. 1990).
The sufficiency of an indictment is reviewed
de novo. See United States v.
Holden, 806 F.3d 1227, 1231 (9th Cir. 2015); United States v. Inzunza, 638 F.3d 1006,
1016 (9th Cir. 2011);
United States v. O’Donnell, 608 F.3d
546, 555 (9th Cir. 2010);
United States v. Rodriguez, 360 F.3d
949, 958 (9th Cir. 2004);
United States v. Shryock, 342 F.3d 948,
988 (9th Cir. 2003). When defendant fails to object to the
sufficiency of the indictment in the district court, review is for plain
error. See Rodriguez, 360 F.3d at 958; United States v. Leos-Maldonado, 302
F.3d 1061, 1064 (9th Cir. 2002);
but see United States v.
Lo, 231 F.3d 471, 481 (9th Cir. 2000)
(reviewing de novo when issue raised for the first time on appeal).
Whether a criminal information complies with
constitutional requirements is examined de novo. See Givens v. Housewright, 786 F.2d 1378,
1380 (9th Cir. 1986). Whether an information is sufficient to
charge a defendant in a particular situation is a question of law reviewed de
novo. See United States v.
Hamilton, 208 F.3d 1165, 1168 (9th Cir. 2000); United States v. Linares, 921 F.2d 841,
843 (9th Cir. 1990).
The validity of an indictment is reviewed de
novo. See United States v.
Juan-Cruz, 314 F.3d 384, 387 (9th Cir. 2002); United States v. Matsumaru, 244 F.3d
1092, 1099 (9th Cir. 2001);
United States v. Rosi, 27 F.3d 409, 414
(9th Cir. 1994).
A claim that an indictment is defective may be raised at any time, see United States v.
Leos-Maldonado, 302 F.3d 1061, 1064 (9th Cir. 2002);
however, “review of an untimely objection to the sufficiency of the indictment
is limited to the plain error test.” Id; United States v. Cotton, 535 U.S. 625,
631-34 (2002). A “terminally defective” indictment
constitutes a deficiency that is not subject to harmless error analysis. See United States v.
Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). Technical deficiencies, however, are subject
to harmless error review. See United States v.
Fleming, 215 F.3d 930, 935-36 (9th Cir. 2000).
This court generally reviews the district court’s ruling on a motion in
limine for an abuse of discretion. See United States v.
Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016)
(“Generally, we review the ruling on a motion in limine for abuse of
discretion.”); United States v.
Sutcliffe, 505 F.3d 944, 958 (9th Cir. 2007); United States v. Geston, 299 F.3d 1130,
1138 (9th Cir. 2002);
United States v. Ross, 206 F.3d 896, 898
(9th Cir. 2000). The trial court’s decision to change an in
limine ruling is also reviewed for an abuse of discretion. See United States v.
Bensimon, 172 F.3d 1121, 1127 (9th Cir. 1999).
A district court’s order precluding certain
testimony is an evidentiary ruling subject to review for an abuse of discretion. See United States v.
Lynch, 437 F.3d 902, 913 (9th Cir. 2006); United States v. Ravel, 930 F.2d 721,
726 (9th Cir. 1991). If the order precludes the presentation of a
defense, however, review is de novo. See Ross, 206 F.3d at 898-99.
“[T]he use of interpreters in the courtroom
is a matter within the trial court’s discretion, and . . . a trial court’s
ruling on such a matter will be reversed only for clear error.” United States v. Mayans, 17 F.3d 1174,
1179 (9th Cir. 1994). The trial court’s determination that a
defendant needs an interpreter is also reviewed for an abuse of
discretion. See United States v. Petrosian, 126 F.3d
1232, 1234 n.3 (9th Cir. 1997) (per curiam). The district court’s decision not to declare
a mistrial based on alleged interpreter’s mistake is reviewed for an abuse of
discretion. See United States v.
Long, 301 F.3d 1095, 1105 (9th Cir. 2002).
A district court’s decision to deny funds for an investigator is
reviewed for an abuse of discretion. See United States v.
Croft, 124 F.3d 1109, 1125 n.7 (9th Cir. 1997).
The trial court’s decision to invoke judicial
estoppel in criminal proceedings is reviewed for an abuse of discretion. See United States v. Ruiz, 73 F.3d 949, 953
(9th Cir. 1996). See
also In re Jacobson, 676 F.3d 1193, 1198 (9th Cir. 2012)
(bankruptcy) (“The decision whether to invoke judicial estoppel is reviewed for
abuse of discretion.”).
A district court’s decision to take judicial
notice is reviewed for an abuse of discretion.
See United States v. Daychild, 357 F.3d
1082, 1099 n.26 (9th Cir. 2004);
United States v. Chapel, 41 F.3d 1338,
1342 (9th Cir. 1994).
Jurisdictional issues are reviewed de novo. See United States v.
Struckman, 611 F.3d 560, 571 (9th Cir. 2010); United States v.
Phillips, 367 F.3d 846, 854 (9th Cir. 2004); United States v. Neil, 312 F.3d 419, 421
(9th Cir. 2002);
United States v. Errol D. Jr., 292 F.3d
1159, 1161 (9th Cir. 2002).
Whether a district court has jurisdiction is reviewed de novo. See United States v.
Aguilar-Reyes, 653 F.3d 1053, 1055 (9th Cir. 2011); United States v.
Penna, 319 F.3d 509, 511 (9th Cir. 2003); United States v. Monreal, 301 F.3d 1127,
1130 (9th Cir. 2002). The assumption of jurisdiction by a district
court is reviewed de novo. See United States v.
Reves, 774 F.3d 562, 564 (9th Cir. 2014); United States v. Juvenile Female, 566
F.3d 943, 945 (9th Cir. 2009); United States v.
Ross, 372 F.3d 1097, 1105 (9th Cir. 2004); United States v. Bennett, 147 F.3d 912,
913 (9th Cir. 1998);
United States v. Juvenile Male, 118 F.3d
1344, 1346 (9th Cir. 1997). Note, however, that in instances where
jurisdiction is intertwined with the merits and must be resolved by a jury, the
appropriate standard of review is unsettled.
See Juvenile Male, 118 F.3d at 1346; United States v. Gomez, 87 F.3d 1093,
1097 n.3 (9th Cir. 1996). See
also United States v. Cruz, 554 F.3d 840,
843-44 (9th Cir. 2009)
(“Although jurisdictional questions are ordinarily reviewed de novo, when a defendant
brings a motion for acquittal in order to challenge the sufficiency of the evidence
underlying a jurisdictional element, we owe deference to the jury’s ultimate
factual finding.” (emphasis in original)).
A magistrate judge’s assertion of
jurisdiction is reviewed de novo. See United States v.
Real Property, 135 F.3d 1312, 1314 (9th Cir. 1998)
(civil forfeiture).
A defendant’s entitlement to a jury trial is a question of law reviewed
de novo. See United States v.
Kimsey, 668 F.3d 691, 697 (9th Cir. 2012); United States v.
Male Juvenile, 280 F.3d 1008, 1021 (9th Cir. 2002); United States v. Clavette, 135 F.3d
1308, 1309 (9th Cir. 1998).
See also U.S. Sec. &
Exch. Comm’n v. Jensen, 835 F.3d 1100, 1106 (9th Cir. 2016)
(SEC civil enforcement action).
The adequacy of a defendant’s jury waiver
presents a mixed question of law and fact reviewed de novo. See United States v.
Duarte‑Higareda, 113 F.3d 1000, 1002 (9th Cir. 1997)
(listing requirements for valid waiver); United States v. Christensen, 18 F.3d
822, 824 (9th Cir. 1994). Whether a district court should have allowed
a defendant to waive trial by jury over the objection of the government is a
question of law subject to de novo review.
See United States v. Reyes, 8 F.3d 1379,
1382 (9th Cir. 1993).
To prosecute a juvenile in federal court, the government must follow
the certification procedures required by 18 U.S.C. § 5032. See United States v. Juvenile Male, 492 F.3d
1046, 1048 (9th Cir. 2007);
United States v. Doe, 170 F.3d 1162, 1165 (9th Cir. 1999). Jurisdictional issues are reviewed de
novo. See United States v. Errol D., Jr., 292 F.3d
1159, 1161 (9th Cir. 2002);
Doe, 170 F.3d at 1165. Compliance with § 5032 is a question of
statutory interpretation reviewed de novo. See United States v.
James, 556 F.3d 1062, 1065 (9th Cir. 2009); United States v.
C.M., 485 F.3d 492, 498 (9th Cir. 2007); United States v.
Jose D.L., 453 F.3d 1115, 1120 (9th Cir. 2006); see also United States v.
Camez, 839 F.3d 871, 872 (9th Cir. 2016), cert. denied, No. 16-8386, 2017
WL 1037310 (Oct. 16, 2017). Questions regarding the constitutionality of
§ 5032 are also reviewed de novo. See
United States v. Juvenile, 228 F.3d 987,
990 (9th Cir. 2000). Note that compliance with § 5032 is subject
to harmless error review if defendant objects and plain error review if no
objection is made. See United States v.
Doe, 366 F.3d 1069, 1077 & n.10 (9th Cir. 2004)
(en banc).
The district court’s decision to transfer a
juvenile to adult court is reviewed for an abuse of discretion. See Juvenile Male, 492 F.3d at 1048; United States v. Gerald N., 900 F.2d
189, 191 (9th Cir. 1990). Review of a juvenile delinquency sentence
that falls within the sentencing guidelines is also abuse of discretion. See United States v.
Juvenile, 347 F.3d 778, 784 (9th Cir. 2003).
Section 5033 requires that federal law enforcement
agents notify parents of a juvenile’s rights “immediately” after the juvenile
is taken into custody. See Jose D.L., 453 F.3d at 1119. The district court’s ultimate determination
that notification was “immediate” is reviewed de novo. See id. Whether a juvenile’s parents have been
notified pursuant to § 5033 is a predominantly factual question that is
reviewed for clear error. See id.; United States v.
Juvenile (RRA-A), 229 F.3d 737, 742 (9th Cir. 2000); United States v. Doe, 219 F.3d 1009,
1014 (9th Cir. 2000). See
also United States v.
C.M., 485 F.3d 492, 498 (9th Cir. 2007).
Whether a juvenile has been arraigned without unreasonable delay is a mixed question of law and fact reviewed de novo. See C.M., 485 F.3d at 498; Jose D.L., 453 F.3d at 1120. Whether a juvenile is “in custody” is also a mixed question of law and fact reviewed de novo. See United States v. Female Juvenile (Wendy G.), 255 F.3d 761, 765 (9th Cir. 2001). The court also reviews de novo whether a juvenile’s speedy trial rights were violated. See Juvenile RRA-A, 229 F.3d at 742 (applying Juvenile Delinquency Act).
A district court’s denial of a motion to
dismiss under Fed. R. Crim.
P. 48(b) is reviewed for abuse of discretion. See United States v.
Corona-Verbera, 509 F.3d 1105, 1112 (9th Cir. 2007); United States v. Barken, 412 F.3d 1131,
1136 (9th Cir. 2005);
United States v. Sears, Roebuck & Co.,
877 F.2d 734, 737-38 (9th Cir. 1989)
(frequently cited and fullest discussion of standard). A Rule 48(b) dismissal should
only be granted “in extreme circumstances.”
Barken, 412 F.3d at 1136.
A district court’s decision whether to apply
the law‑of‑the‑case doctrine is reviewed for an abuse of
discretion. See United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997)
(listing five different conditions allowing a court to stray from the law of
the case). “Failure to apply the . . .
law of the case absent one of the requisite conditions constitutes an abuse of
discretion.” Id.
In United States v. Lummi Nation, 763 F.3d
1180, 1185 (9th Cir. 2014), the court explained that “[a]buse of discretion, … , is the standard when
it is clear that the law of the case doctrine applies.” Where “the
parties dispute whether the doctrine applies at all, i.e. whether the issue has already ‘been
decided explicitly or by necessary implication[,]’” it is a question of law
reviewed de novo. Id. at 1185
(internal citation omitted).
Whether a pretrial lineup was impermissibly
suggestive, and violates due process, is reviewed de novo. See United States v.
Bowman, 215 F.3d 951, 966 n.9 (9th Cir. 2000); United States v. Montgomery, 150 F.3d
983, 992 (9th Cir. 1998). In making this determination, we review the
totality of the circumstances. United States v. Jones, 84 F.3d 1206,
1209 (9th Cir. 1996).
When a defendant fails to object to the
lineup identification by way of a pretrial suppression motion, he waives his
right to challenge it absent a showing of prejudice. See United States v. Atcheson, 94 F.3d 1237,
1246 (9th Cir. 1996).
The district court’s decision to admit or
deny in-court identification testimony is reviewed for abuse of
discretion. See United States v. Dixon, 201 F.3d 1223,
1229 (9th Cir. 2000). The court’s ruling regarding the
admissibility of expert testimony on the reliability of eyewitness
identification is reviewed for abuse of discretion. See United States v. Rincon, 28 F.3d 921,
923 (9th Cir. 1994).
The delegation of authority and the scope of
powers of a magistrate judge are questions of law reviewed de novo. See United States v.
Gamba, 541 F.3d 895, 898 (9th Cir. 2008); United States v.
Rivera-Guerrero, 377 F.3d 1064, 1067 (9th Cir. 2004); United States v. Colacurcio, 84 F.3d
326, 328 (9th Cir. 1996). Whether a magistrate judge has jurisdiction
is also a question of law reviewed de novo.
United States v. Carr, 18 F.3d 738, 740
(9th Cir. 1994).[12] Whether a magistrate judge’s “precise
formulation” of a jury instruction is sufficient is reviewed for an abuse of
discretion. United States v. McKittrick, 142 F.3d
1170, 1176 (9th Cir. 1998).
Factual findings made by a magistrate judge
are reviewed for clear error. See United States v.
Ruiz-Gaxiola, 623 F.3d 684, 693 n. 4 (9th Cir. 2010); Wildman v. Johnson, 261 F.3d 832, 836 (9th Cir. 2001)
(habeas). A magistrate judge’s decision
whether to conduct an evidentiary hearing on a motion to suppress is reviewed
for abuse of discretion. See United States v.
Howell, 231 F.3d 615, 620-21 (9th Cir. 2000).
A district court’s decision regarding the
scope of review of a magistrate judge’s decision is reviewed for an abuse of
discretion. See Brown v. Roe, 279 F.3d 742, 744 (9th Cir. 2002)
(habeas). The district court’s denial of
a motion to reconsider a magistrate’s pretrial order will be reversed only if
“‘clearly erroneous or contrary to law.’”
See Rivera v. NIBCO,
Inc., 364 F.3d 1057, 1063 (9th Cir. 2004)
(quoting Fed. R. Civ. P. 72(a)); Osband v. Woodford, 290 F.3d 1036, 1041
(9th Cir. 2002)
(habeas).
The issuance of a search warrant by a magistrate judge
is reviewed for clear error. See United States v.
Fernandez, 388 F.3d 1199, 1252 (9th Cir. 2004). More specifically, “a magistrate judge’s
finding of probable cause to issue a search warrant is reviewed for clear error
. . . .” United States v. Nielsen, 371 F.3d 574,
579 (9th Cir. 2004). Thus, the magistrate judge’s original
determination of probable cause is accorded significant deference. See United States v.
Crews, 502 F.3d 1130, 1135 (9th Cir. 2007); United States v. Battershell, 457 F.3d
1048, 1050 (9th Cir. 2006);
United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003). “This standard of review is less probing than
de novo review and shows deference to the issuing magistrate’s
determination.” Fernandez, 388 F.3d at 1252
(internal quotation marks omitted).
Whether a defendant was constitutionally
entitled to Miranda warnings is an
issue of law reviewed de novo. See United States v.
Cazares, 788 F.3d 956, 981 (9th Cir. 2015); United States v. Wright, 625 F.3d 583,
602 (9th Cir. 2010),
superseded by statute on other grounds as
recognized by United States v.
Brown, 785 F.3d 1337, 1351 (9th Cir. 2015); United States v. Craighead, 539 F.3d
1073, 1082 (9th Cir. 2008);
United States v. Washington, 462 F.3d
1124, 1132 (9th Cir. 2006); United States v.
Crawford, 372 F.3d 1048, 1053 (9th Cir. 2004)
(en banc). The trial court’s decision to
admit or suppress a statement that may have been obtained in violation of Miranda is also reviewed de novo. See United States v. Brobst, 558 F.3d 982,
995 (9th Cir. 2009);
Craighead, 539 F.3d at 1082.[13]
The adequacy of a Miranda warning is a legal issue reviewed de novo. See United States v. Williams, 435 F.3d
1148, 1151 (9th Cir. 2006);
United States v. San Juan-Cruz, 314 F.3d
384, 387 (9th Cir. 2002)
(explaining why de novo review is appropriate).
Factual findings underlying the adequacy challenge are reviewed for
clear error. See Craighead, 539 F.3d at 1082; United States v. Lares-Valdez, 939 F.2d
688, 689 (9th Cir. 1991)
(per curiam). See also Wright, 625 F.3d at 602 (“While
determining whether a defendant is constitutionally entitled to Miranda
warnings is subject to de novo review, it is nevertheless a fact-intensive
inquiry.”).
The voluntariness of a waiver of Miranda rights is reviewed de novo. See Williams, 435 F.3d at 1151; United States v. Bautista, 362 F.3d 584,
589 (9th Cir. 2004). Whether waiver was voluntary is a mixed
question of fact and law reviewed de novo.
See United States v.
Jennings, 515 F.3d 980, 986 (9th Cir. 2008) (“Our
review of the voluntariness of a Miranda waiver is de novo, but we will
not disturb the district court’s underlying factual findings unless they are
clearly erroneous.”); United States v. Rodriguez-Preciado, 399
F.3d 1118, 1127
(9th Cir.), amended by 416 F.3d 939 (9th
Cir. 2005). “Voluntariness
is determined by considering the totality of the circumstances, including close
scrutiny of the facts.” Wright, 625 F.3d at 603
(emphasis in original) (quotation marks and citation omitted). Whether
the waiver was knowing and intelligent is reviewed for clear error. See United States v.
Shi, 525 F.3d 709, 728 (9th
Cir. 2008); Rodriguez-Preciado,
399 F.3d at 1127.
Whether a defendant was in custody for Miranda purposes is a mixed question of
law and fact reviewed de novo. See United States v.
Reyes-Bosque, 596 F.3d 1017, 1031 (9th Cir. 2010); United States v. Bassignani, 575 F.3d
879, 883 (9th Cir. 2009);
United States v. Kim, 292 F.3d 969, 973
(9th Cir. 2002)
(key case noting prior conflict and reaffirming de novo review). The district court’s factual findings
underlying that decision, such as what a defendant was told, are reviewed for
clear error. See Bassignani, 575 F.3d at 883; Kim, 292 F.3d at 973.
The district court’s factual findings
concerning the words a defendant used to invoke the right to counsel are
reviewed for clear error. See United States v. Rodriguez, 518 F.3d
1072, 1076 (9th Cir. 2008);
United States v. Younger, 398 F.3d 1179,
1185 (9th Cir. 2005);
United States v. Ogbuehi, 18 F.3d 807,
812 (9th Cir. 1994). Whether those words actually invoked the
right to counsel is reviewed de novo. See Rodriguez, 518 F.3d at 1076.
Whether the public safety exception applies
to the failure to give a Miranda
warning is a mixed question of fact and law reviewed de novo. See United States v.
Reilly, 224 F.3d 986, 992 (9th Cir. 2000); United States v. Brady, 819 F.2d 884,
886 (9th Cir. 1987). See
also United States v. Williams, 842 F.3d
1143, 1150 (9th Cir. 2016) (concluding public safety exception to Miranda requirement did not apply).
Whether the prosecution’s references to a
defendant’s retention of counsel and silence after a Miranda warning violates the Fifth Amendment is reviewed de
novo. See United States v. Ross, 123 F.3d 1181,
1187 (9th Cir. 1997).
On habeas corpus review, the district court’s
decision that a defendant knowingly and voluntarily waived Miranda rights is a mixed question of law and fact reviewed de
novo. See Pollard v. Galaza, 290 F.3d 1030, 1032
(9th Cir. 2002);
Collazo v. Estelle, 940 F.2d 411, 415
(9th Cir. 1991)
(en banc). Whether a defendant’s Miranda waiver was knowing and
intelligent is a factual issue reviewed for clear error. See Collazo, 940 F.2d at 416. Whether a defendant was “in custody” for
purposes of Miranda is a mixed
question of law and fact reviewed de novo.
See Bains v. Cambra, 204 F.3d 964, 972 (9th Cir. 2000).
The abuse of discretion standard applies to review of a trial court’s
decision to grant the government’s motion to quash a subpoena under Fed. R. Crim. P. 17(c). See United States v. George, 883 F.2d 1407,
1418 (9th Cir. 1989). The district court’s decision whether or not
to quash a grand jury subpoena is reviewed for an abuse of discretion. See In re Grand Jury
Subpoena, No. 16-03-217, No. 17-16221, 2017 WL 5504965, at *3
(9th Cir. Nov. 8, 2017)
(reviewing denial of motion to quash a grand jury subpoena); In re Grand Jury Subpoena, 357 F.3d 900,
906 (9th Cir. 2004);
Ralls v. United States, 52 F.3d 223, 225
(9th Cir. 1995)
(denial of motion to quash reviewed for abuse of discretion).
Whether a district court may conditionally
enforce an IRS summons is a question of statutory interpretation reviewed de
novo. See United States v. Jose, 131 F.3d 1325,
1327 (9th Cir. 1997)
(en banc). A district court’s decision
to quash an IRS summons is reviewed, however, for clear error. See David H. Tedder & Assocs. v. United
States, 77 F.3d 1166, 1169 (9th Cir. 1996). The court’s decision to enforce a summons is
also reviewed for clear error. See
United States v. Blackman, 72 F.3d 1418,
1422 (9th Cir. 1995);
Fortney v. United States, 59 F.3d 117,
119 (9th Cir. 1995)
(applying clear error review to district court’s denial of petition to quash); but see Crystal v. United
States, 172 F.3d 1141, 1145 n.5 (9th Cir. 1999)
(reviewing de novo when appeal is from grant of summary judgment denying
petition to squash IRS subpoena).
Whether a pretrial lineup was impermissibly
suggestive is reviewed de novo. See United States v.
Bowman, 215 F.3d 951, 966 n.9 (9th Cir. 2000). To determine whether such a procedure
violated the defendant’s due process rights, this court examines the totality
of the surrounding circumstances. See
United States v. Jones, 84 F.3d 1206,
1209 (9th Cir. 1996);
United States v. Matta‑Ballesteros,
71 F.3d 754, 769 (9th Cir. 1995),
amended by 98 F.3d 1100 (9th
Cir. 1996).
The constitutionality of a pretrial
identification procedure is also reviewed de novo. See United States v. Montgomery, 150 F.3d
983, 992 (9th Cir. 1998). But when a defendant fails to object to the
admission of the identification by way of a pretrial suppression motion, he
waives his right to challenge the identification absent a showing of
prejudice. See United States v.
Atcheson, 94 F.3d 1237, 1246 (9th Cir. 1996).
The district court’s decision regarding the
admissibility of expert testimony on the reliability of eyewitness
identification is reviewed for an abuse of discretion. See United States v. Rincon, 28 F.3d 921,
923 (9th Cir. 1994).
Alleged violations of plea agreements are
reviewed de novo. See United States v.
Gonzalez-Aguilar, 718 F.3d 1185, 1187 (9th Cir. 2013); United States v. Whitney, 673 F.3d 965,
970 (9th Cir. 2012);
United States v. Camarillo-Tello, 236
F.3d 1024, 1026 (9th Cir. 2001). Whether the district court must enforce a plea
agreement is a question of law reviewed de novo. See United States v. Flores, 559 F.3d 1016,
1019 (9th Cir. 2009);
United States v. Kuchinski, 469 F.3d
853, 857 (9th Cir. 2006). Whether a district court is bound by the
sentencing range in a plea agreement is also reviewed de novo. See United States v.
Perez-Corona, 295 F.3d 996, 1000 (9th Cir. 2002).
The district court’s grant or denial of a
defendant’s motion to compel specific performance of a plea agreement is
reviewed for abuse of discretion. See
United States v. Transfiguracion, 442
F.3d 1222, 1228 (9th Cir. 2006)
(reviewing grant of motion); United States v. Anthony, 93 F.3d 614,
616 (9th Cir. 1996)
(reviewing denial of motion). Whether a
district court has jurisdiction to enforce a plea agreement is reviewed de
novo. See United States v. Monreal, 301 F.3d 1127,
1130 (9th Cir. 2002).
A
defendant’s failure to argue breach of the plea agreement before the district
court limits appellate review to plain error.
See Gonzalez-Aguilar, 718 F.3d at 1187; Whitney, 673 F.3d at 970; United States v. Cannel, 517 F.3d 1172,
1176 (9th Cir. 2008); United States v.
Maldonado, 215 F.3d 1046, 1051 (9th Cir. 2000).
Whether the government violated the terms of
the agreement is reviewed de novo. See United States v.
Clark, 218 F.3d 1092, 1095 (9th Cir. 2000). However, factual issues underlying an alleged
breach of a plea agreement are reviewed for clear error. United States v. Martinez, 143 F.3d
1266, 1271 (9th Cir. 1998);
but see United States v.
Franco-Lopez, 312 F.3d 984, 988 (9th Cir. 2002)
(noting inconsistency with de novo review established in United States v. Schuman, 127 F.3d 815,
817 (9th Cir.1997)).
A district court has broad discretion in
fashioning a remedy for breach of a plea agreement. See United States v. Chiu, 109 F.3d 624, 626
(9th Cir. 1997).
There is
conflicting case law concerning the proper standard for reviewing a district
court’s interpretation of a plea agreement.
See United States v.
Plascencia-Orozco, 852 F.3d 910, 916 (9th Cir. 2017), cert. denied,
No. 17-6088, 2017
WL 4269886 (Oct. 30, 2017)
(explaining conflicting case law, and choosing not resolve the conflict); United States v. Ellis, 641 F.3d 411,
417 (9th Cir. 2011); United States v.
Transfiguracion, 442 F.3d 1222, 1227 (9th Cir. 2006); compare United States v. Franklin, 603 F.3d 652
(9th Cir. 2010);
United States v. Reyes, 313 F.3d 1152,
1156 (9th Cir. 2002)
(“A district court’s interpretations of law are reviewed de novo and a district court’s construction of a plea agreement is
reviewed for clear error.”); United States v. Clark, 218 F.3d 1092,
1095 (9th Cir. 2000) (“The district court’s interpretation
and construction of a plea agreement is reviewed for clear error.”); United States v. Floyd, 1 F.3d 867,
869-70 (9th Cir. 1993)
(“The district court’s interpretation of a plea agreement is a finding of fact
and is reviewed for clear error, but its application of the legal principles is
a question of law reviewed de novo.”) (citations omitted); with United States v.
Quach, 302 F.3d 1096, 1100 (9th Cir. 2002)
(“We review de novo a district court’s interpretation of a plea agreement.”); United States v. Salemo, 81 F.3d 1453,
1460 (9th Cir. 1996)
(“We review a district court’s interpretation of the terms of a plea agreement
de novo.”). Underlying factual findings
are reviewed for clear error. See Reyes, 313 F.3d at 1156
(“[A] district court’s construction of a plea agreement is reviewed for clear
error.”); Clark, 218 F.3d at 1095. Whether language in a plea agreement is
ambiguous is reviewed de novo. See Clark, 218 F.3d at 1095.
Whether a district judge improperly participated in
plea negotiations is a question of law reviewed de novo. See United States v. Collins, 684 F.3d 873,
882 (9th Cir. 2012). See
also United States v.
Davila, 569 U.S. 597 (2013)
(addressing improper participation by court in plea discussions); United States v. Velazquez, 855 F.3d
1021, 1038 (9th Cir. 2017)
(“Federal Rule of Criminal
Procedure 11(c)(1) prohibits any participation
by a judge in plea negotiations. See United States v.
Bruce, 976 F.2d 552, 555-56 (9th Cir. 1992), abrogated
on other grounds by Davila, 133 S. Ct. 2139.
This includes magistrate judges even when they are neither ‘the
sentencing judge nor the judge presiding over the defendant’s criminal case.’ United States
v. Myers, 804 F.3d 1246, 1253 (9th Cir. 2015).”).
Whether a defendant has waived his statutory right to appeal by plea
agreement is reviewed de novo. See United States v.
Lo, 839 F.3d 777, 783 (9th Cir. 2016), cert. denied, No. 16-8327, 2017
WL 1022651 (Oct. 16, 2017);
United States v. Lightfoot, 626 F.3d
1092, 1094 (9th Cir. 2010);
United States v. Speelman, 431 F.3d
1226, 1229 (9th Cir. 2005);
United States v. Bynum, 362 F.3d 574,
583 (9th Cir. 2004). The validity of a waiver in a plea agreement
is reviewed de novo. See United States v.
Medina-Carrasco, 815 F.3d 457, 461 (9th Cir. 2016); United States v. Charles, 581 F.3d 927,
931 (9th Cir. 2009);
United States v. Ruiz, 241 F.3d 1157,
1163 (9th Cir. 2001),
rev’d on other grounds, 536 U.S. 622
(2002);
United States v. Littlejohn, 224 F.3d
960, 964 (9th Cir. 2000). Whether a defendant may waive the prohibition
against the introduction of plea negotiation statements is a question of law
reviewed de novo. See United States v. Rebbe, 314 F.3d 402,
405 (9th Cir. 2002).
“A defendant may withdraw a plea of guilty before sentencing if ‘the defendant can show a fair and just reason for requesting the withdrawal.’ Fed. R. Crim. P. 11(d)(2)(B).” United States v. Yamashiro, 788 F.3d 1231, 1236-37 (9th Cir. 2015). The court reviews “a district court’s denial of a motion to withdraw a guilty plea for abuse of discretion. United States v. Ensminger, 567 F.3d 587, 590 (9th Cir. 2009). Under this standard, [the court reviews] the district court’s findings of fact for clear error. United States v. McTiernan, 546 F.3d 1160, 1166 (9th Cir. 2008).” Yamashiro, 788 F.3d at 1236.
The district court’s decision to preclude a defendant’s proffered defense
is reviewed de novo. See United States v.
Lindsey, 850 F.3d 1009, 1014 (9th Cir. 2017); United States v. Forrester, 616 F.3d
929, 934 (9th Cir. 2010);
United States v. Biggs, 441 F.3d 1069,
1070 n.1 (9th Cir. 2006);
United States v. Gurolla, 333 F.3d 944,
952 n.8 (9th Cir. 2003);
United States v. Ramirez-Valencia, 202
F.3d 1106, 1109 (9th Cir. 2000).[14] Whether the court’s instructions adequately
cover the defendant’s proffered defense is also reviewed de novo. See United States v.
Kleinman, 859 F.3d 825, 841 (9th Cir. 2017); United States v. Bello-Bahena, 411 F.3d
1083, 1089 (9th Cir. 2005). However, whether a defendant has made the
required factual foundation to support a requested jury instruction is reviewed
for abuse of discretion. See Bello-Bahena, 411 F.3d at 1089; see also United States v.
Wiggan, 700 F.3d 1204, 1210 (9th Cir. 2012); United States v. Marguet-Pillado, 648
F.3d 1001, 1006 (9th Cir. 2011);
United States v. Perdomo-Espana, 522
F.3d 983, 986 (9th Cir. 2008)
(explaining various standards of review depending on focus of inquiry).
Whether a challenged jury instruction precludes an adequate
presentation of the defense theory of the case is reviewed de novo. See United States v. Iverson, 162 F.3d 1015,
1022 (9th Cir. 1998);
United States v. Amlani, 111 F.3d 705,
716 n.5 (9th Cir. 1997). Additionally, whether the ruling on a motion
in limine precludes the presentation of a defense is reviewed de novo. See United States v.
Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016). Finally, a determination that a defendant has
the burden of proving a defense is reviewed de novo. See United States v.
Leal-Cruz, 431 F.3d 667, 670 (9th Cir. 2005); United States v. Beasley, 346 F.3d 930,
933 (9th Cir. 2003);
United States v. McKittrick, 142 F.3d
1170, 1177 (9th Cir. 1998);
United States v. Dominguez‑Mestas,
929 F.2d 1379, 1381 (9th Cir. 1991)
(duress).
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 10.
Defenses.
The district court’s decision on a defendant’s
motion to dismiss for pre-indictment delay is reviewed for abuse of
discretion. See United States v.
Gregory, 322 F.3d 1157, 1160-61 (9th Cir. 2003); United States v. Mills, 280 F.3d 915,
920 (9th Cir. 2002).
A district court’s decision whether to
dismiss an indictment for violation of the constitutional right to a speedy
trial is reviewed de novo. See United States v.
De Jesus Corona-Verbera, 509 F.3d 1105, 1114 (9th Cir. 2007); Gregory, 322 F.3d at 1160-61. A finding of prejudice is reviewed under the
clearly erroneous standard. See De Jesus
Corona-Verbera, 509 F.3d at 1114; Gregory, 322 F.3d at 1161.
Factual findings underlying a district
court’s detention order are reviewed under a deferential, clearly erroneous
standard. See United States v.
Santos-Flores, 794 F.3d 1088, 1090 (9th Cir. 2015)
(order); United States v. Fidler, 419 F.3d 1026,
1029 (9th Cir. 2005). “The conclusions based on such factual findings, however, present a mixed question of fact and law. Thus,
‘the question of whether the district
court’s factual determinations
justify the pretrial detention order is reviewed de novo.’” Santos-Flores, 794 F.3d at 1090 (quoting United States v.
Hir, 517 F.3d 1086-87 (9th Cir. 2008)). The court’s finding of potential danger to
the community is entitled to deference. See Fidler, 419 F.3d at 1029; Marino v. Vasquez, 812 F.2d 499, 509
(9th Cir. 1987). The district court’s interpretation of
“community,” as used in the Bail Reform Act, is reviewed de novo. See
United States v. Hir, 517 F.3d 1081,
1086 (9th Cir. 2008). Also, whether the district court’s factual
findings justify pretrial detention is reviewed de novo. See id. at 1086-87. The court’s finding that a defendant is a
flight risk is also reviewed under the clearly erroneous standard. See Fidler, 419 F.3d at 1029; United States v. Donaghe, 924 F.2d 940,
945 (9th Cir. 1991). The ultimate “fleeing from justice” question,
however, is reviewed de novo, because “legal concepts that require us to
exercise judgment dominate the mix of fact and law.” United States v. Fowlie, 24 F.3d 1070,
1072 (9th Cir. 1994).
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases,
2. Bail.
A trial court’s decision whether to hold a hearing on
pretrial motions is reviewed for an abuse of discretion. See United States v. Schafer, 625 F.3d 629, 635 (9th Cir. 2010) (evidentiary
hearing); United States
v Marks, 530 F.3d 799, 810 (9th Cir. 2008); United States v. Hagege, 437 F.3d 943, 951 (9th Cir. 2006); United States v. Hernandez, 424 F.3d
1056, 1058 (9th Cir. 2005)
(suppression motion); United States v. Alatorre, 222 F.3d
1098, 1099 (9th Cir. 2000)
(evidentiary ruling). But see United States v.
Chavez-Miranda, 306 F.3d 973, 979 (9th Cir. 2002)
(denial of Franks hearing is reviewed
de novo); United States v. Young, 86 F.3d 944, 947
(9th Cir. 1996)
(denial of evidentiary hearing on use immunity is reviewed de novo).
Whether a
pretrial lineup was impermissibly suggestive is reviewed de novo. See United States v.
Bowman, 215 F.3d 951, 966 n.9 (9th Cir. 2000). To determine whether such a procedure
violated the defendant’s due process rights, this court examines the totality
of the surrounding circumstances. See United States v.
Jones, 84 F.3d 1206, 1209 (9th Cir. 1996); United States v. Matta‑Ballesteros,
71 F.3d 754, 769 (9th Cir. 1995),
amended by 98 F.3d 1100 (9th
Cir. 1996).
The constitutionality of a pretrial
identification procedure is also reviewed de novo. See United States v.
Montgomery, 150 F.3d 983, 992 (9th Cir. 1998). Where the defendant fails to object to the
admission of the identification by way of a pretrial suppression motion,
however, he waives his right to challenge the identifications absent a showing
of prejudice. See United States v.
Atcheson, 94 F.3d 1237, 1246 (9th Cir. 1996).
The district court’s decision to admit
in-court identification testimony is reviewed for an abuse of discretion. United States v. Dixon, 201 F.3d 1223,
1229 (9th Cir. 2000). The district court’s decision regarding the
admissibility of expert testimony on the reliability of eyewitness
identification is reviewed for an abuse of discretion. See United States v.
Hicks, 103 F.3d 837, 847 (9th Cir. 1996), overruled in part on other grounds by United States v. W.R. Grace, 526 F.3d
499, 502 (9th Cir. 2008)
(en banc); United States v. Rincon, 28 F.3d 921,
923 (9th Cir. 1994).
The determination of probable cause is a
mixed question of law and fact reviewed de novo. See Ornelas v. United
States, 517 U.S. 690, 699 (1996)
(warrantless search of vehicle); United States v. Faagai, 869 F.3d 1145,
1149 (9th Cir. 2017);
United States v. Lopez, 482 F.3d 1067,
1071 (9th Cir. 2007). See
also United States v.
Borowy, 595 F.3d 1045, 1047 (9th Cir. 2010)
(per curiam); Lopez, 482 F.3d at 1071; United States v. Williamson, 439 F.3d
1125, 1135 n.8 (9th Cir. 2006).[15] However, underlying historical facts are
reviewed for clear error. See Williamson, 439 F.3d at 1135 n.8; United States v. Ortiz-Hernandez, 427
F.3d 567, 573 (9th Cir. 2005);
United States v. Dorsey, 418 F.3d 1038, 1042 (9th Cir. 2005), overruled on other grounds by Arizona v. Gant, 556 U.S. 332, 341-44 (2009).
The issuance of a search warrant by a
magistrate judge is reviewed for clear error.
See United States v.
Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011); United States v. Hill, 459 F.3d 966, 970
(9th Cir. 2006)
(according “great deference” to the magistrate judge’s finding); United States v. Fernandez, 388 F.3d
1199, 1252 (9th Cir. 2004).[16] Thus, the magistrate judge’s determination of
probable cause is accorded deference by the reviewing court. See Krupa, 658 F.3d at 1177; Hill, 459 F.3d at 970
(“great deference”); United States v. Meek, 366 F.3d 705, 712
(9th Cir. 2004)
(same); United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003)
(“significant deference”).
A district court’s determination of probable
cause in a case with a redacted affidavit is reviewed de novo. See United States v.
Huguez‑Ibarra, 954 F.2d 546, 551 (9th Cir. 1992); United States v. Grandstaff, 813 F.2d
1353, 1355 (9th Cir. 1987)
(search warrant); see also United States v.
Barajas-Avalos, 377 F.3d 1040, 1058 (9th Cir. 2004)
(reviewing de novo whether probable cause exists after tainted information has
been redacted from an affidavit); United States v. Castillo, 866 F.2d
1071, 1076 (9th Cir. 1988)
(totality of circumstances used to determine if magistrate had probable cause
to issue arrest warrant, reversible only upon finding of clear error, similar
to review of search warrants).
Whether probable cause is lacking because of alleged misstatements and
omissions in the affidavit is reviewed de novo.
See United States v.
Perkins, 850 F.3d 1109, 1115 (9th Cir. 2017); United States v. Ruiz, 758 F.3d 1144,
1148 (9th Cir. 2014);
United States v. Elliott, 322 F.3d 710,
714 (9th Cir. 2003);
United States v. Bowman, 215 F.3d 951,
963 n.6 (9th Cir. 2000). The district court’s factual findings whether
any statements were false and omitted, and whether such statements were
intentionally or recklessly made, are reviewed for clear error. Perkins, 850 F.3d at 1115; Elliott, 322 F.3d at 714. See
also Ruiz, 758 F.3d at 1148
(reviewing for clear error the district court’s finding that a fact was not
recklessly omitted from an affidavit
supporting probable cause).
A district court’s decision whether to grant a motion for recusal is
reviewed for an abuse of discretion. See United States v.
McTiernan, 695 F.3d 882, 891 (9th Cir. 2012) (“Rulings
on motions for recusal are reviewed under the abuse-of-discretion standard.”); United States v. Johnson, 610 F.3d 1138,
1147 (9th Cir. 2010);
United States v. Martin, 278 F.3d 988,
1005 (9th Cir. 2002);
United States v. Silver, 245 F.3d 1075,
1078 (9th Cir. 2001);
United States v. Scholl, 166 F.3d 964,
977 (9th Cir. 1999).[17]
When recusal is not raised below, the
allegation of judicial bias is reviewed for plain error. See United States v. Spangle, 626 F.3d 488,
495 (9th Cir. 2010);
United States v. Holland, 519 F.3d 909,
911 (9th Cir. 2008);
United States v. Bosch, 951 F.2d 1546,
1548 (9th Cir. 1991).
A district court’s interpretation of a
federal regulation is reviewed de novo. See United States v.
Bohn, 622 F.3d 1129, 1135 (9th Cir. 2010); United States v.
Bucher, 375 F.3d 929, 931 (9th Cir. 2004); United States v. Willfong, 274 F.3d
1297, 1300 (9th Cir. 2001);
United States v. Ani, 138 F.3d 390, 391
(9th Cir. 1998).[18] An agency’s interpretation of regulations,
however, is entitled to deference. United States v. Bowen, 172 F.3d 682,
685 (9th Cir. 1999);
United States v. McKittrick, 142 F.3d
1170, 1173 (9th Cir. 1998). Whether a regulation is unconstitutionally
vague is a question of law reviewed de novo.
See United States v.
Elias, 269 F.3d 1003, 1014 (9th Cir. 2001); United States v. Coutchavlis, 260 F.3d
1149, 1155 (9th Cir. 2001).
This court reviews de novo whether a
defendant was denied the right to conflict‑free representation. See United States v.
Baker, 256 F.3d 855, 859 (9th Cir. 2001)
(habeas); United States v. Moore, 159 F.3d 1154,
1157 (9th Cir. 1998);
United States v. Cruz, 127 F.3d 791, 801
(9th Cir. 1997) (direct appeal), overruled in part on other grounds in United States v.
Jimenez Recio, 537 U.S. 270, 276-77 (2003).
District judges have “substantial latitude” in deciding whether counsel
must be disqualified; review is for an abuse of discretion. See United States v.
Frega, 179 F.3d 793, 799 (9th Cir. 1999); United States v. Stites, 56 F.3d 1020,
1024 (9th Cir. 1995). See
also Radcliffe v.
Hernandez, 818 F.3d 537, 541 (9th Cir. 2016), cert. denied, 137 S. Ct. 620
(2017).
The decision whether to allow a pro se
litigant to proceed with either form of hybrid representation (co‑counsel
or advisory counsel) is reviewed for abuse of discretion. See United States v.
George, 85 F.3d 1433, 1439 (9th Cir. 1996); United States v. Bergman, 813 F.2d 1027,
1030 (9th Cir. 1987).
The court’s denial of a request for hybrid representation is reviewed for an
abuse of discretion. See United States v.
Olano, 62 F.3d 1180, 1193 (9th Cir. 1995); United States v. Kienenberger, 13 F.3d
1354, 1356 (9th Cir. 1994).
Whether a
defendant received ineffective assistance of counsel is reviewed de novo both
in direct appeals and on habeas.
·
Direct
appeals: See United States v.
Nickerson, 556 F.3d 1014, 1018 (9th Cir. 2009); United States v. Labrada-Bustamante, 428
F.3d 1252, 1260 (9th Cir. 2005);
United States v. Mack, 164 F.3d 467, 471
(9th Cir. 1999).
·
Habeas: See Frierson v.
Woodford, 463 F.3d 982, 988 (9th Cir. 2006) (§ 2254);
Earp v. Ornoski, 431 F.3d 1158, 1182
(9th Cir. 2005);
Allen v. Woodford, 395 F.3d 979, 992
(9th Cir. 2005)
(§ 2254); Stankewitz v. Woodford, 365 F.3d 706, 714
(9th Cir. 2004)
(§ 2254); United States v. Rodrigues, 347 F.3d
818, 823 (9th Cir. 2003)
(§ 2255); United States v. Alaimalo, 313 F.3d
1188, 1191 (9th Cir. 2002)
(§ 2255).
Ineffective
assistance of counsel claims are mixed questions of fact and law to be reviewed
de novo. See Earp, 431 F.3d at 1182; Labrada-Bustamante, 428 F.3d at 1260; Dubria v. Smith, 224 F.3d 995, 1000 (9th
Cir. 2000)
(en banc).
Note that claims of ineffective assistance of
counsel are generally inappropriate on direct appeal. See United States v.
McGowan, 668 F.3d 601, 605 (9th Cir. 2012); United States v. Moreland, 622 F.3d
1147, 1157 (9th Cir. 2010);
United States v. Alferahin, 433 F.3d
1148, 1160 n.6 (9th Cir. 2006)
(noting when direct review is permissible and accepting review); United States v. Sager, 227 F.3d 1138,
1149 (9th Cir. 2000)
(declining review).
The district court’s findings of fact are
reviewed under the clearly erroneous standard.
See Gollehon v. Mahoney, 626 F.3d 1019, 1023
(9th Cir. 2010);
Summerlin v. Schriro, 427 F.3d 623, 629
(9th Cir. 2005)
(en banc); Allen, 395 F.3d at 992; United States v. Alvarez-Tautimez, 160
F.3d 573, 575 (9th Cir. 1998).
The district court’s decision not to conduct
an evidentiary hearing on an ineffective assistance of counsel claim is
reviewed for an abuse of discretion. See Perez v. Rosario, 449 F.3d 954, 964 (9th Cir. 2006) (§
2254); United States v. Leonti, 326 F.3d 1111,
1116 (9th Cir. 2003)
(§ 2255); United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir. 2001) (§
2255).
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 50.
Representation, f. Right to Counsel.
Factual findings supporting the district court’s decision whether to allow
a defendant to proceed pro se are reviewed for clear error. See United States v.
Marks, 530 F.3d 799, 816 (9th Cir. 2008); United States v. George, 56 F.3d 1078,
1084 (9th Cir. 1995);
United States v. Kienenberger, 13 F.3d
1354, 1356 (9th Cir. 1994). The validity of a Faretta waiver is a mixed question of law and fact reviewed de
novo. See United States v. Moreland, 622 F.3d
1147, 1156 (9th Cir. 2010);
United States v. Erskine, 355 F.3d 1161,
1166 (9th Cir. 2004). See
also United States v.
Brugnara, 856 F.3d 1198, 1212 (9th Cir. 2017), cert. denied, No. 17-6057,
2017 WL 4181065 (Oct. 30, 2017)
(discussing defendant’s right to represent himself).
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 18. Faretta Requests.
Whether a defendant was denied his Sixth Amendment right to counsel is
a question of law reviewed de novo. See United States v.
Hantzis, 625 F.3d 575, 582 (9th Cir. 2010)
(direct appeal); United States v. Danielson, 325 F.3d
1054, 1066 (9th Cir. 2003)
(direct appeal); United States v. Christakis, 238 F.3d
1164, 1168 (9th Cir. 2001)
(§ 2255); United States v. Ortega, 203 F.3d 675,
679 (9th Cir. 2000)
(direct appeal); United States v. Mett, 65 F.3d 1531,
1534 (9th Cir. 1995)
(coram nobis).
The district court’s factual findings
concerning the words a defendant used to invoke the right to counsel are
reviewed for clear error. See United States v. Rodriguez, 518 F.3d
1072, 1076 (9th Cir. 2008);
United States v. Younger, 398 F.3d 1179,
1185 (9th Cir. 2005). Whether those words actually invoked the
right to counsel is reviewed de novo. See Younger, 398 F.3d at 1185; United States v. Doe, 170 F.3d 1162,
1166 (9th Cir. 1999).
Denial of a motion for substitution of counsel is reviewed for an abuse
of discretion. See United States v.
Lindsey, 634 F.3d 541, 554 (9th Cir. 2011); United States v. Rivera-Corona, 618 F.3d
976, 978 (9th Cir. 2010); United States v.
Mendez-Sanchez, 563 F.3d 935, 942 (9th Cir. 2009); United States v. Prime, 431 F.3d 1147,
1154 (9th Cir. 2005);
United States v. McKenna, 327 F.3d 830,
843 (9th Cir. 2003);
United States v. Smith, 282 F.3d 758,
763 (9th Cir. 2002);
United States v. Corona-Garcia, 210 F.3d
973, 976 (9th Cir. 2000);
United States v. Moore, 159 F.3d 1154,
1159 n.3 (9th Cir. 1998).
In reviewing the district court’s exercise of
discretion, the court of appeals considers three factors: (1) the adequacy of the court’s inquiry into
the defendant’s complaint; (2) the extent of conflict between the defendant and
counsel; and (3) the timeliness of the motion and the extent of resulting
inconvenience and delay. See Lindsey, 634 F.3d at 554; Rivera-Corona, 618 F.3d at 978; Prime, 431 F.3d at 1154; McKenna, 327 F.3d at 843; Smith, 282 F.3d at 763.
Note that this court clarified that, in
habeas review of a state court’s denial of a motion to substitute counsel,
review is not for an abuse of discretion, but whether the error violated the
defendant’s constitutional rights. See Gonzales v.
Knowles, 515 F.3d 1006, 1012 (9th Cir. 2008); Schell v. Witek, 218 F.3d 1017, 1024-25
(9th Cir. 2000)
(en banc) (overruling Crandell v. Bunnell, 144 F.3d 1213, 1215
(9th Cir. 1998)).
Whether a defendant has voluntarily waived
the right to counsel and elected self‑representation is a mixed question
of law and fact reviewed de novo. See United States v.
French, 748 F.3d 922, 929 (9th Cir. 2014); United States v. Sutcliffe, 505 F.3d
944, 954 (9th Cir. 2007)
(implicit waiver, direct appeal); United States v. Percy, 250 F.3d 720,
725 (9th Cir. 2001)
(direct appeal); United States v. Lopez-Osuna, 242 F.3d
1191, 1198 (9th Cir. 2001)
(direct appeal); Lopez v. Thompson, 202 F.3d 1110, 1116
(9th Cir. 2000)
(en banc) (habeas). This court reviews
de novo whether a defendant’s waiver of the right to counsel was made
knowingly, intelligently, and voluntarily.
See French, 748 F.3d at 929; United States v. Springer, 51 F.3d 861,
864 (9th Cir. 1995);
see also Sutcliffe, 505 F.3d at 954, 956.
The trial court’s decision to grant or deny
an attorney’s motion to withdraw as counsel is reviewed for an abuse of
discretion. See United States v.
Carter, 560 F.3d 1107, 1113 (9th Cir. 2009); LaGrand v. Stewart, 133 F.3d 1253, 1269
(9th Cir. 1998);
United States v. Roston, 986 F.2d 1287,
1292 (9th Cir. 1993)
(substitution of new counsel).
The district court’s decision whether to seal documents is reviewed for
an abuse of discretion. See United States v.
Doe, 870 F.3d 991, 996 (9th
Cir. 2017)
(“When a district court
‘conscientiously balances’ the interests of the public and the party seeking to
keep secret certain judicial records, we review a decision whether or not to seal the judicial records for abuse of
discretion.”); United States v. Shryock, 342 F.3d 948,
983 (9th Cir. 2003);
United States v. Mann, 829 F.2d 849, 853
(9th Cir. 1987).
The lawfulness of a search and seizure is
reviewed de novo. See United States v.
Scott, 705 F.3d 410, 414-15 (9th Cir. 2012)
(stating it is a mixed question of law and fact); United States v. Kriesel, 508 F.3d 941,
946 n.6 (9th Cir. 2007); United States v.
Stafford, 416 F.3d 1068, 1073 (9th Cir. 2005); United States v. Deemer, 354 F.3d 1130,
1132 (9th Cir. 2004);
United States v. Nerber, 222 F.3d 597,
599 (9th Cir. 2000).
The trial court’s underlying factual findings
are reviewed for clear error. See Stafford, 416 F.3d at 1073; Deemer, 354 F.3d at 1132. “Where no findings of fact were made or
requested, this court will uphold a trial court’s denial of a motion to
suppress if there was a reasonable view to support it.” United States v. Gooch, 506 F.3d 1156,
1158 (9th Cir. 2007)
(quoting United States v. Becker, 23 F.3d 1537,
1539 (9th Cir. 1994)).
This court reviews de novo a district court’s
ultimate legal conclusion whether a defendant has standing to challenge a
search and seizure. See United States v.
Gonzalez, Inc., 412 F.3d 1102, 1116 (9th Cir. 2005); United States v. Silva, 247 F.3d 1051,
1054 (9th Cir. 2001);
United States v. Sarkisian, 197 F.3d
966, 986 (9th Cir. 1999);
United States v. Armenta, 69 F.3d 304,
306‑07 (9th Cir. 1995). The district court’s factual findings
underlying its decision on standing are reviewed for clear error. See Gonzales, 412 F.3d at 1116; Armenta, 69 F.3d at 307.
Whether an encounter between a defendant and
officers constitutes a seizure is a mixed question of law and fact to be
reviewed de novo. See United States v.
Smith, 633 F.3d 889, 892 (9th Cir. 2011); United States v.
Washington, 490 F.3d 765, 769 (9th Cir. 2007); United States v.
Becerra-Garcia, 397 F.3d 1167, 1170 (9th Cir. 2005); United States v. Enslin, 327 F.3d 788,
792-93 (9th Cir. 2003);
United States v. Cormier, 220 F.3d 1103,
1110 (9th Cir. 2000). However, the district court’s underlying
findings of fact are reviewed for clear error.
See Becerra-Garcia, 397 F.3d at 1172; Cormier, 220 F.3d at 1110.
Whether an otherwise valid search or seizure
was carried out in an unreasonable manner is determined under an objective
test, on the basis of the facts and circumstances confronting the
officers. See Franklin v. Foxworth, 31 F.3d 873, 875
(9th Cir. 1994)
(civil rights action). The court’s
determination of “reasonableness” is reviewed de novo. See id.
Whether property
has been abandoned within the meaning of the Fourth Amendment is an issue of
fact reviewed for clear error. See United States v.
Stephens, 206 F.3d 914, 916-17 (9th Cir. 2000); United States v. Gonzales, 979 F.2d 711,
712 (9th Cir. 1992).
The legality of a border search is reviewed
de novo. See United States v.
Seljan, 547 F.3d 993, 999 n.6 (9th Cir. 2008)
(en banc) (packages); United States v.
Cortez-Rocha, 394 F.3d 1115, 1118 (9th Cir. 2005)
(car tire).[19] Note that reasonable suspicion is not
required for every border search. See United States v. Arnold, 533 F.3d 1003,
1008 (9th Cir. 2008)
(“[R]easonable suspicion is not needed for customs officials to search a
laptop or other personal electronic storage devices at the border”). See
also United States v.
Cotterman, 709 F.3d 952, 960 (9th Cir. 2013)
(discussing border searches). Whether a border detention was based on
reasonable suspicion is reviewed de novo.
See United States v. Nava, 363 F.3d 942, 944
(9th Cir. 2004);
United States v. Gonzalez‑Rincon,
36 F.3d 859, 863 (9th Cir. 1994). The district court’s findings of fact are
reviewed under the clearly erroneous standard.
See United States v. Chen, 439 F.3d 1037,
1040 (9th Cir. 2006);
United States v. Camacho, 368 F.3d 1182,
1183 (9th Cir. 2004);
Gonzalez-Rincon, 36 F.3d at 863.
The lawfulness of a search and seizure by the
Coast Guard, a mixed question of law and fact, is reviewed de novo. See United States v. Dobson, 781 F.2d 1374,
1376 (9th Cir. 1986). Whether the continued detention of a vessel
after completion of a safety inspection by the Coast Guard is permissible based
on reasonable suspicion is a question of law reviewed de novo. See United States v. Thompson, 282 F.3d 673,
676 (9th Cir. 2002).
A district court’s determination whether a
defendant voluntarily consented to a search depends on the totality of
circumstances and is a question of fact reviewed for clear error. See United States v.
Washington, 490 F.3d 765, 769 (9th Cir. 2007)
(discussing five factors to consider); United States v. Rodriguez-Preciado, 399
F.3d 1118, 1125-26
(9th Cir.), amended by 416 F.3d 939 (9th
Cir. 2005). The
question whether as a general rule certain types of action give rise to an
inference of consent to search is a question of law reviewed de novo. See United States v. Albrektsen, 151 F.3d
951, 953 (9th Cir. 1998);
United States v. Garcia, 997 F.2d 1273,
1281 (9th Cir. 1993).
A trial court’s findings on whether the scope
of consent to a search has been exceeded will be upheld unless they are clearly
erroneous. See United States v.
Lopez-Cruz, 730 F.3d 803, 809 (9th
Cir. 2013); United States v. Russell, 664 F.3d 1279,
1280 n.1 (9th Cir. 2012);
United States v. McWeeney, 454 F.3d
1030, 1033-34 (9th Cir. 2006); Rodriguez-Preciado, 399 F.3d at 1131.
A district court’s determination regarding
authority to consent to a search is a mixed question of fact and law reviewed de
novo. See United States v.
Arreguin, 735 F.3d 1168, 1174 (9th Cir. 2013); United States v. Ruiz, 428 F.3d 877, 880
(9th Cir. 2005);
United States v. Kim, 105 F.3d 1579,
1581 (9th Cir. 1997)
(resolving previously undecided standard of review). A determination of apparent authority to
consent is a mixed question of law and fact reviewed de novo. See Ruiz, 428 F.3d at 880; United States v. Enslin, 327 F.3d 788,
792 (9th Cir. 2003);
United States v. Reid, 226 F.3d 1020,
1025 (9th Cir. 2000);
United States v. Fiorillo, 186 F.3d
1136, 1144 (9th Cir. 1999)
(describing three-part analysis).
Whether the exclusionary rule is applicable to a given case is reviewed
de novo while underlying factual findings are reviewed for clear error. See United States v.
Lundin, 817 F.3d 1151, 1157 (9th Cir. 2016); United States v. Perea-Rey, 680 F.3d
1179, 1183 (9th Cir. 2012);
United States v. Jefferson, 566 F.3d
928, 933 (9th Cir. 2009);
United States v. Quoc Viet Hoang, 486
F.3d 1156, 1159 (9th Cir. 2007);
United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004)
(en banc). Whether the rule applies to
revocation hearings is reviewed de novo.
See United States v.
Hebert, 201 F.3d 1103, 1104 (9th Cir. 2000)
(per curiam); see also Grimes v.
Commissioner, 82 F.3d 286, 288 (9th Cir. 1996)
(reviewing de novo whether rule applies to civil tax proceedings). Whether the good faith exception to the
exclusionary rule applies in any given case is subject to de novo review. See
United States v. Krupa, 658 F.3d 1174,
1179 (9th Cir. 2011);
United States v. Thai Tung Luong, 470
F.3d 898, 902 (9th Cir. 2006);
United States v. Kurt, 986 F.2d 309, 311
(9th Cir. 1993). Whether officers’ conduct was sufficiently
egregious to require application of the exclusionary rule is reviewed de
novo. Gonzalez-Rivera v. INS, 22 F.3d 1441,
1449 (9th Cir. 1994).
Exigent circumstances present a mixed
question of law and fact reviewed de novo.
See United States v.
Mancinas-Flores, 588 F.3d 677, 687 (9th Cir. 2009); United States v. Russell, 436 F.3d 1086,
1089 n.2 (9th Cir. 2006);
United States v. Bynum, 362 F.3d 574,
578-79 (9th Cir. 2004);
United States v. VonWillie, 59 F.3d 922,
925 (9th Cir. 1995). Findings of fact underlying the district
court’s determination are reviewed for clear error. Mancinas-Flores, 588 F.3d at 687; Russell, 436 F.3d at 1089 n.4; VonWillie, 59 F.3d at 925.
Whether an individual had a reasonable
expectation of privacy in property is a question of law reviewed de novo. See United States v.
Heckenkamp, 482 F.3d 1142, 1146 (9th Cir. 2007); United States v. Gust, 405 F.3d 797, 799
(9th Cir. 2005);
United States v. Shryock, 342 F.3d 948,
977 (9th Cir. 2003). A finding that an individual had a subjective
expectation of privacy is reviewed for clear error. See United States v.
Gooch, 6 F.3d 673, 677 (9th Cir. 1993).
“This court reviews the district court’s
determination that a particular search involves governmental conduct de
novo.” United States v. Ross, 32 F.3d 1411,
1413 (9th Cir. 1994)
(per curiam).
Rulings regarding inevitable discovery
present mixed questions of fact and law that are reviewed for clear error. See United States v. Lundin, 817 F.3d 1151,
1157 (9th Cir. 2016) (noting that it is essentially a factual inquiry); United
States v. Ruckes, 586 F.3d 713, 716 (9th Cir. 2009); United States v. Reilly, 224 F.3d 986,
994 (9th Cir. 2000);
United States v. Lang, 149 F.3d 1044,
1048 (9th Cir. 1998)
(resolving prior unsettled standard).
Whether an encounter between an individual
and law enforcement authorities constitutes an investigatory stop is a mixed
question of law and fact subject to de novo review. See United States v.
Michael R., 90 F.3d 340, 345 (9th Cir. 1996); United States v. Kim, 25 F.3d 1426, 1430
(9th Cir. 1994). Factual determinations underlying this
inquiry are reviewed for clear error. See United States v.
Garcia-Acuna, 175 F.3d 1143, 1145 (9th Cir. 1999); Michael R., 90 F.3d at 345; Kim, 25 F.3d at 1430.
The specific question of whether reasonable
suspicion existed under given facts is also subject to de novo review. See United States v.
Williams, 846 F.3d 303, 306 (9th Cir. 2016), cert. denied, 137 S. Ct. 2145
(2017);
United States v. Burkett, 612 F.3d 1103,
1106 (9th Cir. 2010)
(“A determination whether there was reasonable suspicion to support an
investigatory ‘stop and frisk’ is a mixed question of law and fact, also
reviewed de novo.”); United States v.
Arvizu, 534 U.S. 266, 275 (2002)
(reaffirming de novo standard); Ornelas v. United States, 517 U.S. 690,
699 (1996);
United States v. Burkett, 612 F.3d 1103,
1106 (9th Cir. 2010); United
States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007); United States v. Crapser, 472 F.3d 1141,
1145 (9th Cir. 2007);
United States v. Colin, 314 F.3d 439,
442 (9th Cir. 2002);
United States v. Fuentes, 105 F.3d 487,
490 (9th Cir. 1997)
(propriety of a Terry stop is
reviewed de novo). Underlying factual
findings are reviewed for clear error. See Williams, 846 F.3d at 306; Ornelas, 517 U.S. at 699; United States v.
Drake, 543 F.3d 1080, 1087 (9th Cir. 2008); Berber-Tinoco, 510 F.3d at 1087; United States v. Choudhry, 461 F.3d
1097, 1100 (9th Cir. 2006);
Colin, 314 F.3d at 442; United States v. Lopez-Soto, 205 F.3d
1101, 1103 (9th Cir. 2000).
Whether a seizure exceeds the bounds of a
valid investigatory stop and becomes a de facto arrest is reviewed de
novo. See United States v.
Edwards, 761 F.3d 977, 981 (9th Cir. 2014); United States v. Thompson, 282 F.3d 673,
676 (9th Cir. 2002);
United States v. Torres‑Sanchez,
83 F.3d 1123, 1127 (9th Cir. 1996). Whether the scope of a vehicle stop exceeded
the permissible scope of a traffic stop is reviewed de novo. See United States v.
Garcia-Rivera, 353 F.3d 788, 791 (9th Cir. 2003).
Whether an encounter between a defendant and officers constitutes a seizure is
a mixed question of law and fact reviewed by this court de novo. See United States v.
Smith, 633 F.3d 889, 892 (9th Cir. 2011); United States v.
Washington, 490 F.3d 765, 769 (9th Cir. 2007); United States v. Becerra-Garcia, 397
F.3d 1167, 1170 (9th Cir. 2005);
United States v. Stephens, 206 F.3d 914,
917 (9th Cir. 2000). A district court’s determination that a
police officer lawfully crossed the threshold of a dwelling to effect an arrest
is reviewed de novo. See United States v.
Albrektsen, 151 F.3d 951, 953 (9th Cir. 1998).
The issuance of a search warrant by a
magistrate judge is reviewed for clear error.
See United States v.
Krupa, 658 F.3d 1174, 1177 (9th Cir. 2011); United States v.
Hill, 459 F.3d 966, 970 (9th Cir. 2006)
(noting finding of probable cause is reviewed for clear error); United States v. Fernandez, 388 F.3d
1199, 1252 (9th Cir. 2004).[20] Thus, the magistrate judge’s determination of
probable cause is accorded deference by the reviewing court. See Krupa, 658 F.3d at 1177; Hill, 459 F.3d at 970
(“great deference”); United States v. Meek, 366 F.3d 705, 712
(9th Cir. 2004)
(same); United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003)
(“significant deference”). The court of
appeals “will not reverse a magistrate judge’s determination of probable cause
for the purposes of issuing a search warrant absent a finding of clear
error.” United States v. Perez, 67 F.3d 1371,
1382 (9th Cir. 1995),
withdrawn in part, 116 F.3d 840 (9th
Cir. 1997)
(en banc); United States v. Pitts, 6 F.3d 1366,
1369 (9th Cir. 1993). Thus, the standard of review is “less probing
than de novo review and shows deference to the issuing magistrate’s
determination.” Pitts, 6 F.3d at 1369; United States v. Hernandez, 937 F.2d
1490, 1494 (9th Cir. 1991).
A district court’s determination of probable
cause in a case with a redacted affidavit is reviewed de novo. See United States v.
Huguez‑Ibarra, 954 F.2d 546, 551 (9th Cir. 1992); United States v. Grandstaff, 813 F.2d
1353, 1355 (9th Cir. 1987)
(search warrant); see also United States v.
Barajas-Avalos, 377 F.3d 1040, 1058 (9th Cir. 2004)
(reviewing de novo whether probable cause exists after tainted information has
been redacted from an affidavit); United States v. Castillo, 866 F.2d
1071, 1076 (9th Cir. 1988)
(totality of circumstances used to determine if magistrate had probable cause
to issue arrest warrant, reversible only upon finding of clear error, similar
to review of search warrants).
Whether probable cause is lacking because of
alleged misstatements and omissions in the affidavit is reviewed de novo. See United States v.
Perkins, 850 F.3d 1109, 1115 (9th Cir. 2017); United States v. Elliott, 322 F.3d 710,
714 (9th Cir. 2003);
United States v. Bowman, 215 F.3d 951,
963 n.6 (9th Cir. 2000). The district court’s factual findings whether
any statements were false and omitted, and whether such statements were
intentionally or recklessly made, are reviewed for clear error. See United States v. Ruiz, 758 F.3d 1144,
1148 (9th Cir. 2014); Elliott, 322 F.3d at 714.[21]
Compliance with “knock and announce” standards established by statute is reviewed de novo. See United States v. Chavez-Miranda, 306 F.3d 973, 980 (9th Cir. 2002); United States v. Granville, 222 F.3d 1214, 1217 (9th Cir. 2000); United States v. Hudson, 100 F.3d 1409, 1417 (9th Cir. 1996) (reviewing de novo the validity of a protective sweep, including compliance with knock and announce requirements). Underlying factual findings are reviewed for clear error. See Chavez-Miranda, 306 F.3d at 980; Granville, 222 F.3d at 1217. Whether exigent circumstances existed to excuse an officer’s noncompliance with the knock and announce rule is a mixed question of law and fact reviewed de novo. See United States v. Bynum, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Peterson, 353 F.3d 1045, 1048 (9th Cir. 2004); United States v. Reilly, 224 F.3d 986, 991 (9th Cir. 2000); Hudson, 100 F.3d at 1417.
A district court’s conclusion that a search
did not violate the Fourth Amendment because it was a private search is
reviewed de novo as a question of law. See United States v.
Reed, 15 F.3d 928, 930 (9th Cir. 1994).
The determinations of probable cause is a
mixed question of law and fact in which the legal issues predominate, and it is
therefore subject to de novo review. See Ornelas v. United
States, 517 U.S. 690, 699 (1996)
(warrantless search of vehicle); United States v. Faagai, 869 F.3d 1145,
1149 (9th Cir. 2017)
(warrantless search of vehicle); United States v. Borowy, 595 F.3d 1045,
1047 (9th Cir. 2010)
(per curiam); United States v.
$493,850.00 in United States
Currency, 518 F.3d 1159, 1164 (9th Cir. 2008)
(currency forfeiture).[22] However, underlying historical facts are
reviewed for clear error. See Borowy, 595 F.3d at 1048; Williamson, 439 F.3d at 1135 n.8; Sandoval-Venegas, 292 F.3d at 1104; Parks, 285 F.3d at 1141.
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 52.
Search and Seizure, k. Issuance of a Search Warrant.
The denial of a motion to suppress the fruits
of a warrantless parole search is reviewed de novo. See United States v.
Grandberry, 730 F.3d 968, 970-71 (9th Cir. 2013); United States v. Hebert, 201 F.3d 1103,
1104 (9th Cir. 2000). The district court’s factual determination
that a probation search was not impermissible is reviewed for clear error. See Grandberry, 730 F.3d at 791; United States v.
Watts, 67 F.3d 790, 794 (9th Cir. 1995), rev’d on other grounds, 519 U.S. 148
(1997). The district court’s determination of the
reasonable scope of a probation search is a mixed question of fact and law
reviewed de novo. See United States v.
Davis, 932 F.2d 752, 756 (9th Cir. 1991). Whether a probation search was a subterfuge
for a criminal investigation is a factual determination that is reviewed for
clear error. See United States v.
Knights, 219 F.3d 1138, 1141 (9th Cir. 2000), rev’d on other grounds, 534 U.S. 112
(2001). See
also United States v.
Lara, 815 F.3d 605, 608 (9th Cir. 2016)
(reviewing de novo a district court’s denial of a motion to suppress, and
reviewing for clear error the district court’s underlying factual findings, in
case concerning warrantless probation search of cellular telephone).
De novo review applies to a trial court’s
determination of the validity of a protective sweep, including compliance with
statutory “knock and announce” requirement.
See United States v.
Hudson, 100 F.3d 1409, 1417 (9th Cir. 1996);[23] see also United States v.
Job, 871 F.3d 852, 862 (9th Cir. 2017)
(discussing protective sweeps). Whether
exigent circumstances existed to excuse an officer’s noncompliance with the
knock and announce rule is a mixed question of law and fact reviewed de novo. See United States v.
Bynum, 362 F.3d 574, 578-79 (9th Cir. 2004); United States v. Peterson, 353 F.3d
1045, 1048 (9th Cir. 2004);
United States v. Reilly, 224 F.3d 986,
991 (9th Cir. 2000).
The specific question of whether reasonable
suspicion existed under given facts is subject to de novo review. See United States v.
Arvizu, 534 U.S. 266, 275 (2002)
(reaffirming de novo standard); Ornelas v. United States, 517 U.S. 690,
699 (1996);
United States v. Williams, 846 F.3d 303,
306 (9th Cir. 2016),
cert. denied, 137 S. Ct. 2145
(2017)
(investigatory stop and frisk); United States v. Job, 871 F.3d 852, 861
(9th Cir. 2017)
(Terry stop); United States v. Evans, 786 F.3d 779,
788 (9th Cir. 2015);
United States v. Valdes-Vega, 738 F.3d
1074, 1077 (9th Cir. 2013);
United States v. Burkett, 612 F.3d 1103,
1106 (9th Cir. 2010); United
States v. Berber-Tinoco, 510 F.3d 1083, 1087 (9th Cir. 2007); United States v. Crapser, 472 F.3d 1141,
1145 (9th Cir. 2007);
United States v. Colin, 314 F.3d 439,
442 (9th Cir. 2002);
United States v. Fuentes, 105 F.3d 487,
490 (9th Cir. 1997)
(propriety of a Terry stop is
reviewed de novo). Underlying factual
findings are reviewed for clear error. See Ornelas, 517 U.S. at 699; Evans, 786 F.3d at 788; United States v.
Drake, 543 F.3d 1080, 1087 (9th Cir. 2008); Berber-Tinoco, 510 F.3d at 1087; United States v. Choudhry, 461 F.3d
1097, 1100 (9th Cir. 2006);
Colin, 314 F.3d at 442; United States v. Lopez-Soto, 205 F.3d
1101, 1103 (9th Cir. 2000).
Note that “Rule
41(e) was changed to Rule 41(g) in 2002 and amended for stylistic purposes
only.” United
States v. Kaczynski, 416 F.3d 971, 973 n.3 (9th Cir. 2005).
A district court’s interpretation of Fed. R. Crim. P. 41(g) is
reviewed de novo. See Kaczynski, 416 F.3d at 974; J.B. Manning Corp. v. United States, 86
F.3d 926, 927 (9th Cir. 1996). The denial of a motion for return of property
pursuant to Rule 41(g) is reviewed de novo.
See United States v.
Gladding, 775 F.3d 1149, 1151 (9th Cir. 2014); United States v. Harrell, 530 F.3d 1051,
1057 (9th Cir. 2008);
Kaczynski, 416 F.3d at 974; United States v. Ritchie, 342 F.3d 903,
906 (9th Cir. 2003);
In re Grand Jury Investigation Concerning
Solid State Devices, Inc., 130 F.3d 853, 855 (9th Cir. 1997); but see United States v.
Comprehensive Drug Testing, Inc., 621 F.3d 1162, 1172 (9th Cir. 2010)
(en banc) (per curiam) (explaining that when Rule 41(g) motion “is made by a party against whom no criminal
charges have been brought, such a motion is in fact a petition that the
district court invoke its civil equitable jurisdiction” which is reviewed for abuse of discretion); Ramsden v. United
States, 2 F.3d 322, 324 (9th Cir. 1993)
(district court’s decision to exercise its equitable jurisdiction under Rule
41(e) is reviewed for an abuse of discretion).
The district court’s underlying factual findings are reviewed for clear
error. See Gladding, 775 F.3d at 1152. The trial court’s decision not to hold an
evidentiary hearing on a Rule
41(g) motion is reviewed for an abuse of discretion. See Ctr. Art
Galleries-Haw., Inc. v. United States, 875 F.2d 747, 753 (9th Cir. 1989), superseded by statute as state in J.B. Manning Corp.
v. United States, 86 F.3d 926 (9th Cir. 1996).
Motions to suppress are reviewed de novo. See United States v.
Zapien, 861 F.3d 971, 974 (9th Cir. 2017); United States v. Rodgers, 656 F.3d 1023,
1026 (9th Cir. 2011);
United States v. Stinson, 647 F.3d 1196,
1209 (9th Cir. 2011); United States v.
Smith, 633 F.3d 889, 892 (9th Cir. 2011); United States v. Giberson, 527 F.3d 882,
886 (9th Cir. 2008);
United States v. Snipe, 515 F.3d 947,
950 (9th Cir. 2008);
United States v. Forrester, 512 F.3d
500, 506 (9th Cir. 2008)
(“Conclusions of law underlying the denial of a motion to suppress evidence are
also reviewed de novo”); United States v. Crawford, 372 F.3d
1048, 1053 (9th Cir. 2004)
(en banc).
The trial court’s factual findings are
reviewed for clear error. See Zapien, 861 F.3d at 974; Rodgers, 656 F.3d at 1026; United States v.
McCarty, 648 F.3d 820, 824 (9th Cir. 2011); Giberson, 527 F.3d at 886; Snipe, 515 F.3d at 950; United States v. Gooch, 506 F.3d 1156,
1158 (9th Cir. 2007);
United States v. Aukai, 497 F.3d 955,
958 (9th Cir. 2007).
Whether to hold an evidentiary hearing on a
motion to suppress is reviewed for abuse of discretion. See United States v.
Herrera–Rivera, 832 F.3d 1166, 1172 (9th Cir. 2016); United States v. Quoc Viet Hoang, 486
F.3d 1156, 1163 (9th Cir. 2007); United States v.
Hernandez, 424 F.3d 1056, 1058 (9th Cir. 2005); see also United States v.
Schafer, 625 F.3d 629, 635-36 (9th Cir. 2010). Whether to grant or deny a motion to continue
a suppression hearing is reviewed for an abuse of discretion. See United States v.
Mejia, 69 F.3d 309, 314 (9th Cir. 1995)
(setting forth five factors for considering whether district court abused its
discretion).
Whether to reconsider a suppression order at trial
is reviewed for abuse of discretion. See United States v.
Buffington, 815 F.2d 1292, 1298 (9th Cir. 1987). Failure to apply the doctrine of law of the
case to the motion for reconsideration absent one of the requisite conditions
of that doctrine constitutes an abuse of discretion. See United States v.
Alexander, 106 F.3d 874, 876 (9th Cir. 1997); see also United States v.
Renteria, 557 F.3d 1003, 1006 (9th Cir. 2009). The district court’s denial of a motion to
reconsider and to reopen a suppression hearing is reviewed for an abuse of
discretion. See United States v. Hobbs, 31 F.3d 918, 923
(9th Cir. 1994)
(court abused its discretion).
The propriety of a Terry stop is reviewed de novo.
See United States v.
Grigg, 498 F.3d 1070, 1074 (9th Cir. 2007); United States v. $109,179 in U.S. Currency, 228 F.3d 1080, 1083-84 (9th Cir. 2000). The determination whether an investigatory
stop is a warrantless arrest or a Terry
stop, is a mixed question of law and fact, reviewed de novo. See United States v.
Charley, 396 F.3d 1074, 1079 (9th Cir. 2005); $109,179 in U.S. Currency, 228 F.3d at 1084; United States v. Harrington, 923 F.2d
1371, 1373 (9th Cir. 1991). A trial judge’s determination of reasonable
suspicion to stop based on specific, articulated facts is reviewed de
novo. See United States v.
Job, 871 F.3d 852, 861 (9th Cir. 2017)
(“We review de novo whether a Terry stop was supported by reasonable
suspicion.”); United States v. Burkett, 612 F.3d 1103,
1106-07 (9th Cir. 2010); United States v.
Thompson, 282 F.3d 673, 678 (9th Cir. 2002); United States v. King, 244 F.3d 736, 738
(9th Cir. 2001);
United States v. Hall, 974 F.2d 1201,
1204 (9th Cir. 1992);
United States v. Carrillo, 902 F.2d
1405, 1410‑11 (9th Cir. 1990).[24]
The validity of a warrantless search is reviewed
de novo. See United States v.
Faagai, 869 F.3d 1145, 1149 (9th Cir. 2017)
(warrantless search of vehicle); United States v. Franklin, 603 F.3d 652,
655 (9th Cir. 2010); United States v.
Dorsey, 418 F.3d 1038, 1042 (9th Cir. 2005), overruled on other grounds by Arizona v. Gant, 556 U.S. 332, 341-44 (2009); United States v. Johnson, 256 F.3d 895,
905 (9th Cir. 2001)
(en banc); United States v. Hinton, 222 F.3d 664,
673 (9th Cir. 2000). Underlying factual findings are reviewed for
clear error. See Franklin, 603 F.3d at 655; Dorsey, 418 F.3d at 1042.
The validity of a warrantless entry into a
residence is reviewed de novo. See United States v.
Huguez‑Ibarra, 954 F.2d 546, 551 (9th Cir. 1992). Whether an area is within the protected
curtilage of a home is also reviewed de novo.
See United States v.
Barajas-Avalos, 377 F.3d 1040, 1054 (9th Cir. 2004); United States v. Cannon, 264 F.3d 875,
879 (9th Cir. 2001);
United States v. Johnson, 256 F.3d 895,
909 n.1 (9th Cir. 2001)
(en banc) (overruling prior cases that applied clear error standard); but see United States v.
Romero-Bustamente, 337 F.3d 1104, 1107-08 n.2 (9th Cir. 2003)
(questioning Johnson).
The validity of a warrantless seizure is
reviewed de novo. See United States v.
Hernandez, 313 F.3d 1206, 1208 (9th Cir. 2002)
(package); United States v. Gill, 280 F.3d 923, 928
(9th Cir. 2002)
(mail); United States v. Sarkissian, 841 F.2d
959, 962 (9th Cir. 1988)
(exigent circumstances); United States v. Vasey, 834 F.2d 782,
785 (9th Cir. 1987)
(incident to arrest); United States v. Howard, 828 F.2d 552,
554 (9th Cir. 1987)
(exigent circumstances and consent).
In United States v. Rosi, 27 F.3d 409, 411
(9th Cir. 1994),
this court applied the clearly erroneous standard to “the validity of the
warrantless entry and warrantless search.”
Id. The court reasoned that unlike other cases
applying a de novo standard to “the formulation of a general rule . . .
applicable to a wide class of cases,” this case involved “an unusual set of
factual circumstances that required the district court to weigh and evaluate
various live testimony given at the suppression hearing.” Id.
at 411 n.1. See also United States v.
Rodriguez-Preciado, 399 F.3d 1118, 1125
(9th Cir.), amended by 416 F.3d 939 (9th
Cir. 2005);
United States v. Patayan Soriano, 361
F.3d 494, 501 (9th Cir. 2004).
Whether
exigent circumstances justify a warrantless search or seizure is a mixed
question of law and fact reviewed de novo.
See United States v.
Mancinas-Flores, 588 F.3d 677, 687 (9th Cir. 2009); United States v. Russell, 436 F.3d 1086,
1089 n.2 (9th Cir. 2006);
United States v. Gooch, 6 F.3d 673, 679
(9th Cir. 1993). Whether probable cause supports a warrantless
search of an automobile is a question of law reviewed de novo. See Ornelas v. United
States, 517 U.S. 690, 699 (1996); United States v. Ibarra, 345 F.3d 711,
715 (9th Cir. 2003);
United States v. Dunn, 946 F.2d 615, 619
(9th Cir. 1991). Whether probable cause supports a warrantless
arrest is also reviewed de novo, while underlying facts reviewed for clear
error. See United States v.
Dorsey, 418 F.3d 1038, 1042 (9th Cir. 2005), overruled on other grounds by Arizona v. Gant, 556 U.S. 332, 341-44 (2009).
This court noted that it “has employed both a
de novo standard and a clearly erroneous standard when reviewing a selective
prosecution claim.” See United States v. Culliton, 328 F.3d
1074, 1080-81 (9th Cir. 2003)
(electing not to resolve conflict); see
also United States v.
Sutcliffe, 505 F.3d 944, 954 (9th Cir. 2007); United States v. Moody, 778 F.2d 1380,
1385 (9th Cir. 1985)
(noting but not resolving conflict between clear error and abuse of discretion
standards). Before, however, this court
reviewed for clear error. See United States v.
Estrada‑Plata, 57 F.3d 757, 760 (9th Cir. 1995); United States v. Davis, 36 F.3d 1424,
1432 (9th Cir. 1994);
United States v. Leidendeker, 779 F.2d
1417, 1418 (9th Cir. 1986);
United States v. Wilson, 639 F.2d 500,
503 n.2 (9th Cir. 1981)
(explaining that clear error standard was chosen because “selective
prosecution, more than vindictive prosecution, lends itself to the factfinding
standard”).
The district court decision to dismiss an
indictment based on a claim of selective prosecution is reviewed for clear
error. See United States v.
Bauer, 84 F.3d 1549, 1560 (9th Cir. 1996). The court’s ruling on a motion for discovery
relating to a claim of discriminatory prosecution is reviewed for an abuse of
discretion. See United States v.
Turner, 104 F.3d 1180, 1185 (9th Cir. 1997); United States v. Candia‑Veleta,
104 F.3d 243, 246 (9th Cir. 1996). The court’s ruling on the scope of discovery
for a selective prosecution claim is also reviewed for an abuse of
discretion. See Candia-Veleta, 104 F.3d at 246. Discovery should be permitted when the
defendant can offer “some evidence tending to show the existence of the
discriminatory effect element.” United States v. Armstrong, 517 U.S.
456, 469 (1996)
(reversing Ninth Circuit’s en banc decision at 48 F.3d 1508, 1512
(9th Cir. 1995)).
A district court’s decision on a motion for
severance is reviewed for an abuse of discretion. See United States v.
Barragan, 871 F.3d 689, 701 (9th Cir. 2017); United States v. Stinson, 647 F.3d 1196,
1205 (9th Cir. 2011);
United States v. Sullivan, 522 F.3d 967,
981 (9th Cir. 2008);
United States v. Lopez, 477 F.3d 1110,
1113 (9th Cir. 2006); United States v.
Decoud, 456 F.3d 996, 1008 (9th Cir. 2006)
(defendants); United States v. Alvarez, 358 F.3d 1194,
1206 (9th Cir. 2004)
(defendants); United States v. Vargas-Castillo, 329
F.3d 715, 722 (9th Cir. 2003)
(counts); United States v. Sarkisian, 197 F.3d
966, 978 (9th Cir. 1999);
United States v. Gillam, 167 F.3d 1273,
1276 (9th Cir. 1999).
The test for abuse of discretion is whether a
joint trial was so manifestly prejudicial as to require the trial court to
exercise its discretion in but one way, by ordering a separate trial. See Barragan, 871 F.3d at 701; United States v. Jenkins, 633 F.3d 788,
807 (9th Cir. 2011);
Sullivan, 522 F.3d at 981; Decoud, 456 F.3d at 1008; United States v. Johnson, 297 F.3d 845,
855 (9th Cir. 2002);
United States v. Nelson, 137 F.3d 1094,
1108 (9th Cir. 1998);
Gillam, 167 F.3d at 1276. Defendants must meet a heavy burden to show
such an abuse, and the trial judge’s decision will seldom be disturbed. See
United States v. Ponce, 51 F.3d 820, 831
(9th Cir. 1995). The defendant must prove that prejudice from
the joint trial was so “clear, manifest or undue” that he or she was denied a
fair trial. See United States v.
Throckmorton, 87 F.3d 1069, 1071‑72 (9th Cir. 1996); see also Alvarez, 358 F.3d at 1206
(defendant has burden of proving “clear, manifest, or undue prejudice” from
joint trial).
Whether a defendant was denied his Sixth
Amendment right to counsel is a question of law reviewed de novo. See United States v.
Danielson, 325 F.3d 1054, 1066 (9th Cir. 2003)
(direct appeal); United States v. Christakis, 238 F.3d
1164, 1168 (9th Cir. 2001)
(§ 2255).[25] Whether a defendant has knowingly,
voluntarily, and intelligently waived his Sixth Amendment right to counsel is a
mixed question of law and fact reviewed de novo. See United States v.
Kowalczyk, 805 F.3d 847, 856 (9th Cir. 2015), cert. denied, 136 S. Ct. 1230
(2016);
United States v. Percy, 250 F.3d 720,
725 (9th Cir. 2001);
United States v. Lopez-Osuna, 242 F.3d
1191, 1198 (9th Cir. 2001);
United States v. Springer, 51 F.3d 861,
864 (9th Cir. 1995). Whether a defendant has been denied the right
to a public trial is reviewed de novo. United States v.
Shryock, 342 F.3d 948, 974 (9th Cir. 2003).
The district court’s factual findings
concerning the words a defendant used to invoke the right to counsel are
reviewed for clear error. See United States v.
Younger, 398 F.3d 1179, 1185 (9th Cir. 2005); United States v. Ogbuehi, 18 F.3d 807,
812 (9th Cir. 1994). Whether those words actually invoked the
right to counsel is reviewed de novo. See Younger, 398 F.3d at 1185; Ogbuehi, 18 F.3d at 812.
Whether a trial court’s suppression of a
defendant’s testimony violates the Sixth Amendment right to testify is reviewed
de novo. See United States v.
Moreno, 102 F.3d 994, 998 (9th Cir. 1996).
Denial of a motion for substitution of
counsel is reviewed for an abuse of discretion.
See United States v.
Lindsey, 634 F.3d 541, 554 (9th Cir. 2011); United States v. Prime, 431 F.3d 1147,
1154 (9th Cir. 2005);
United States v. McKenna, 327 F.3d 830,
843 (9th Cir. 2003);
United States v. Smith, 282 F.3d 758, 763
(9th Cir. 2002);
United States v. Corona-Garcia, 210 F.3d
973, 976 (9th Cir. 2000).
A district court’s decision at a revocation
hearing to deny defendant’s request for substitute counsel is reviewed for an
abuse of discretion. See United States v.
Musa, 220 F.3d 1096, 1102 (9th Cir. 2000). Whether a defendant has a Sixth Amendment
right to counsel in a civil forfeiture proceeding is reviewed de novo. See
Alleged violations of the Sixth Amendment’s
Confrontation Clause are reviewed de novo.
See United States v.
Matus-Zayas, 655 F.3d 1092, 1098 (9th Cir. 2011); United States v.
Norwood, 603 F.3d 1063, 1067 (9th Cir. 2010); Lilly v. Virginia, 527 U.S. 116, 136-37
(1999);
United States v. Ballesteros-Selinger,
454 F.3d 973, 974 n.2 (9th Cir. 2006);
United States v. Nielsen, 371 F.3d 574,
581 (9th Cir. 2004);
United States v. Murillo, 288 F.3d 1126,
1137 (9th Cir. 2002);
United States v. Ortega, 203 F.3d 675,
682 (9th Cir. 2000).[26]
Prior to United States v. Larson, 495 F.3d 1094,
1100 (9th Cir. 2007),
there was “an intra-circuit conflict regarding the standard of review
for Confrontation Clause challenges to a trial court’s limitations on
cross-examination.” One line of cases
applied de novo review, a second line applied abuse of discretion, and a third
line of cases combined the two approaches.
See id. at 1100-01.[27] Larson resolved the conflict, holding that “[i]f the defendant raises a
Confrontation Clause challenge based on the exclusion of an area of inquiry,
[the court] reviews de novo. … A challenge to a trial court’s restrictions on
the manner or scope of cross-examination on nonconstitutional grounds is []
reviewed for abuse of discretion.” Id. at 1101.
Confrontation Clause violations are subject,
however, to harmless error analysis. See Nielsen, 371 F.3d at 581; Shryock, 342 F.3d at 979; Ortega, 203 F.3d at 682; United States v. Comito, 177 F.3d 1166,
1170 (9th Cir. 1999).[28]
The court reviews de novo whether there has
been a violation of the Sixth Amendment right to make a defense. See United States v. Brown, 859 F.3d 730,
733 (9th Cir. 2017); United
States v. Stever, 603 F.3d 747, 752 (9th Cir. 2010).
Whether the district court violated defendant’s Sixth Amendment right
to counsel by failing to notify and defense counsel of a jury note is reviewed
de novo. See United States v.
Martinez, 850 F.3d 1097, 1100-02 (9th Cir. 2017)
(concluding the “district court violated Federal Rule of Criminal
Procedure 43(a) and Martinez’s Sixth Amendment right to counsel by failing
to notify and consult with his counsel before responding to the jury’s
question”).
A district court’s decision whether to dismiss an
indictment for violation of the constitutional right to a speedy trial is
reviewed de novo. See United States v.
Alexander, 817 F.3d 1178, 1181 (9th
Cir. 2016) (per curiam); United States
v. Gregory,
322 F.3d 1157, 1160-61 (9th Cir. 2003); United States v. Lam, 251 F.3d 852, 855 (9th
Cir.), amended by 262 F.3d 1033 (9th
Cir. 2001). “[F]actual
determinations underlying the decision are reviewed for clear error.” Alexander, 817 F.3d at 1181. A finding of prejudice is reviewed
under the clearly erroneous standard. See Gregory, 322 F.3d at 1161; United States v. Doe, 149 F.3d 945, 948
(9th Cir. 1998).
The district court’s application of the
Speedy Trial Act is reviewed de novo. See United States v.
Medina, 524 F.3d 974, 982 (9th Cir. 2008); United States v. King, 483 F.3d 969, 972
n.3 (9th Cir. 2007);
United States v. Vo, 413 F.3d 1010, 1014
n.1 (9th Cir. 2005);
United States v. Martinez-Martinez, 369
F.3d 1076, 1084 (9th Cir. 2004);
United States v. Pitner, 307 F.3d 1178,
1182 (9th Cir. 2002);
United States v. Ramirez-Cortez, 213
F.3d 1149, 1153 (9th Cir. 2000);
United States v. Hall, 181 F.3d 1057,
1061 (9th Cir. 1999)
(noting that questions of law under the Speedy Trial Act reviewed de
novo). The court’s interpretation of the
Speedy Trial Act is also reviewed de novo.
See Medina, 524 F.3d at 982; United States v.
Boyd, 214 F.3d 1052, 1054 (9th Cir. 2000); United States v. Ortiz‑Lopez, 24
F.3d 53, 54 (9th Cir. 1994).
The district court’s factual findings under
the Speedy Trial Act are reviewed for clear error. See King, 483 F.3d at 972 n.3; Vo, 413 F.3d at 1014 n.1; Martinez-Martinez, 369 F.3d at 1084; United States v. Contreras, 63 F.3d 852,
855 (9th Cir. 1995);
Ortiz‑Lopez, 24 F.3d at 54. A district court’s finding of an “ends of
justice” exception will be reversed only if there is clear error. See Ramirez-Cortez, 213 F.3d at 1153; United States v. Paschall, 988 F.2d 972,
974 (9th Cir. 1993);
United States v. Murray, 771 F.2d 1324,
1327 (9th Cir. 1985). A judge may revoke a time extension made in
the same case by another judge. The
revocation will be upheld only if the second judge specifically determines that
the fact findings of the judge granting the continuance were clearly in
error. See Murray, 771 F.2d at 1327.
The district court’s decision on a motion to
dismiss for noncompliance with the Speedy Trial Act is reviewed de novo. See United States v.
Daychild, 357 F.3d 1082, 1089 n.5 (9th Cir. 2004); United States v. Gorman, 314 F.3d 1105,
1110 (9th Cir. 2002);
Pitner, 307 F.3d at 1182; United States v. Symington, 195 F.3d
1080, 1090-91 (9th Cir. 1999);
United States v. Pena‑Carrillo, 46
F.3d 879, 882 (9th Cir. 1995). To dismiss without prejudice for a Speedy Trial Act violation, the district
court shall make factual findings and apply them to the relevant statutory
factors; otherwise, dismissal shall be entered with prejudice. See United States v.
Delgado‑Miranda, 951 F.2d 1063, 1064-65 (9th Cir. 1991)
(per curiam); but see United States v.
Clymer, 25 F.3d 824, 831 (9th Cir. 1994)
(reviewing court has discretion on appeal to decide whether to dismiss
indictment with or without prejudice if all relevant facts have been
presented).
Whether a juvenile’s speedy trial rights were
violated is reviewed de novo. See United States v.
C.M., 485 F.3d 492, 498 (9th Cir. 2007); United States v. Juvenile (RRA-A), 229
F.3d 737, 742 (9th Cir. 2000)
(applying Juvenile Delinquency Act); United States v. Doe, 149 F.3d 945, 948
(9th Cir. 1998);
United States v. Eric B., 86 F.3d 869,
872 (9th Cir. 1996).
Whether a defendant was brought to trial
within the speedy trial period of the Interstate Agreement on Detainers Act is
a question of law reviewed de novo. See United States v. Collins, 90 F.3d 1420, 1425 (9th Cir. 1996).
Note that a trial court’s decision on a
defendant’s motion to dismiss charges for preindictment delay is
reviewed for an abuse of discretion. See United States v. DeGeorge, 380 F.3d
1203, 1210 (9th Cir. 2004);
United States v. Gregory, 322 F.3d 1157,
1161 (9th Cir. 2003);
United States v. Doe, 149 F.3d 945, 947
(9th Cir. 1998). The denial of a motion to dismiss based on preaccusation
delay is reviewed for an abuse of discretion. See
Doe, 149 F.3d at 947.
The construction or
interpretation of a statute is reviewed de novo. See United States ex
rel. Bennett v. Biotronik, Inc., 876 F.3d 1011, 1016 (9th Cir. 2017); United States v. Gamboa-Cardenas, 508
F.3d 491, 495 (9th Cir. 2007);
United States v. Norbury, 492 F.3d 1012,
1014 (9th Cir. 2007);
United States v. Cabaccang, 332 F.3d
622, 624-25 (9th Cir. 2003)
(en banc). Specific statutes
follow.
·
Sentencing (statutes & guidelines). See,
e.g., United States v. Lizarraga-Carrizales, 757 F.3d 995,
997 (9th Cir. 2014); Gamboa-Cardenas,
508 F.3d at 495; United States v. Leon H., 365 F.3d 750,
752 (9th Cir. 2004);
United States v. Auld, 321 F.3d 861, 863
(9th Cir. 2003);
United States v. Kakatin, 214 F.3d 1049,
1051 (9th Cir. 2000);
United States v. Hunter, 101 F.3d 82, 84
(9th Cir. 1996).
·
State law. See, e.g., United States v. Davidson, 246 F.3d
1240, 1246 (9th Cir. 2001)
(California); United States v. Ramos, 39 F.3d 219, 220
(9th Cir. 1994)
(
·
Specific statutes & phrases. See, e.g., Biotronik,
Inc., 876
F.3d at 1016 (FCA); United States v. King, 660 F.3d 1071,
1076 (9th Cir. 2011)
(SDWA); United States v. One Sentinel Arms Striker-12
Shotgun Serial No. 001725, 416 F.3d 977, 979 (9th Cir. 2005)
(“destructive device”); United States v.
144,774 pounds of Blue King Crab, 410 F.3d 1131, 1133 (9th Cir. 2005)
(contraband); United States v. Kranovich, 401 F.3d
1107, 1111 (9th Cir. 2005)
(theft involving federal funds/programs); United States v. Shipsey, 363 F.3d 962,
968 n.4 (9th Cir. 2004)
(statute of limitation); Cabaccang, 332 F.3d at 624-25
(importation); United States v. Migi, 329 F.3d 1085,
1087 (9th Cir. 2003)
(playground); United States v. Lincoln, 277 F.3d 1112,
1113 (9th Cir. 2002)
(MVRA); United States v. Kaluna, 192 F.3d 1188,
1193 (9th Cir. 1999)
(en banc) (three-strikes law); United States v. Frega, 179 F.3d 793,
802 n.6 (9th Cir. 1999)
(mail fraud); United States v. Doe, 136 F.3d 631, 634
(9th Cir. 1998)
(arson); United States v. DeLaCorte, 113 F.3d
154, 155 (9th Cir. 1997)
(carjacking); United States v. Salemo, 81 F.3d 1453,
1457 (9th Cir. 1996)
(Criminal Justice Act); United States v. Van Poyck, 77 F.3d 285,
291 (9th Cir. 1996)
(Omnibus Crime Control and Safe Streets Act); United States v. Bailey, 41 F.3d 413,
416 (9th Cir. 1994)
(“access device”).
The applicability of a statute to a
particular case is a question of law reviewed de novo. See United States v.
Villa-Gonzalez, 208 F.3d 1160, 1165 (9th Cir. 2000)
(AEDPA).
The constitutionality of a statute is a question of law reviewed de
novo. See United States v. Garcia, 768 F.3d 822,
827 (9th Cir. 2014);
United States v. Sutcliffe, 505 F.3d
944, 953 (9th Cir. 2007);
United States v. Lujan, 504 F.3d 1003,
1006 (9th Cir. 2007); United States v.
Strong, 489 F.3d 1055, 1060 (9th Cir. 2007); United States v. Jensen, 425 F.3d 698,
706-07 (9th Cir. 2005);
see also United States v. $129,727.00 U.S. Currency, 129 F.3d 486, 491 (9th Cir. 1997)
(civil forfeiture).
Whether a statute is void for vagueness is a
question of law reviewed de novo. See United
States v. Agront, 773 F.3d 192, 195 (9th Cir. 2014) (regulation); United States v. Chhun, 744 F.3d 1110,
1116 (9th Cir. 2014);
United States v. Shetler, 665 F.3d 1150,
1164 (9th Cir. 2011);
United States v. Hungerford, 465 F.3d
1113, 1116 (9th Cir. 2006);
United States v. Rodriguez, 360 F.3d
949, 953 (9th Cir. 2004);
United States v. Naghani, 361 F.3d 1255,
1259 (9th Cir. 2004);
United States v. Cooper, 173 F.3d 1192,
1202 (9th Cir. 1999).
Whether
a statute violates a defendant’s right to due process is reviewed de novo. See United States v.
Hill, 279 F.3d 731, 736 (9th Cir. 2002); United States v. Hanousek, 176 F.3d
1116, 1121 (9th Cir. 1999). A district court’s decision whether to
dismiss an indictment based on its interpretation of a federal statute is reviewed
de novo. See United States v.
Kelly, 874 F.3d 1037, 1046 (9th Cir. 2017); United States v. Wanland, 830 F.3d 947,
952 (9th Cir. 2016).
The district court’s conclusion that a
particular statute of limitation applies is reviewed de novo. See United States v. Wanland, 830 F.3d 947,
952 (9th Cir. 2016);
United
States v. Leo Sure Chief, 438 F.3d 920, 922 (9th Cir. 2006).[29] When a statute of limitation began to run is
also a question of law reviewed de novo.
See Orr v. Bank of
America, NT & SA, 285 F.3d 764, 780 (9th Cir. 2002).[30]
Motions to suppress are reviewed de novo and
the trial court’s factual findings are reviewed for clear error. See United States v.
Zapien, 861 F.3d 971, 974 (9th Cir. 2017)
(per curiam); United States v. Kleinman, 859 F.3d 825,
838 (9th Cir. 2017);
United States v. Gorman, 859 F.3d 706,
714
(9th Cir.), order corrected, 870 F.3d 963 (9th
Cir. 2017);
United States v. Giberson, 527 F.3d 882,
886 (9th Cir. 2008);
United States v. Aukai, 497 F.3d 955,
958 (9th Cir. 2007).
Whether to hold an evidentiary hearing on a
motion to suppress is reviewed for abuse of discretion. See United States v.
Quoc Viet Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007); United States v.
Hernandez, 424 F.3d 1056, 1058 (9th Cir. 2005).[31] Whether to grant or deny a motion to continue
a suppression hearing is reviewed for an abuse of discretion. See United States v.
Mejia, 69 F.3d 309, 314 (9th Cir. 1995)
(listing factors).
Whether to reconsider a suppression order at
trial is reviewed for abuse of discretion.
See United States v.
Buffington, 815 F.2d 1292, 1298 (9th Cir. 1987). The district court’s denial of a motion to
reconsider and to reopen a suppression hearing is reviewed for an abuse of
discretion. See United States v.
Hobbs, 31 F.3d 918, 923 (9th Cir. 1994)
(court abused its discretion).
The district court’s denial of a motion to
transfer trial pursuant to Fed.
R. Crim. P. 18 is reviewed for an abuse of discretion. See United States v.
Scholl, 166 F.3d 964, 969 (9th Cir. 1999).
In criminal cases, venue is a question of law
reviewed de novo. See United States v.
Stinson, 647 F.3d 1196, 1204 (9th Cir. 2011);United States v. Valdez-Santos, 457 F.3d
1044, 1046 (9th Cir. 2006)
(reversing district court); see also United States v.
Sullivan, 797 F.3d 623, 631 (9th Cir. 2015), cert. denied, 136 S. Ct. 2408
(2016). The trial court’s denial of a motion for change
of venue, however, is reviewed for an abuse of discretion. See Stinson, 647 F.3d at 1204; Valdez-Santos, 457 F.3d at 1046; United States v. Croft, 124 F.3d 1109,
1115 n.2 (9th Cir. 1997);
United States v. Collins, 109 F.3d 1413,
1416 (9th Cir. 1997).
“To the extent the ‘vindictive prosecution inquiry turns upon a
district court's proper application of the law, our review is de novo.’ United States
v. Kent, 649 F.3d 906, 912 (9th Cir. 2011). To the extent a
determination of vindictive prosecution turns upon factual findings, we review
for clear error. Id.” United States v. Brown, 875 F.3d 1235, 1240 (9th Cir. 2017);
see also United States v. Jenkins, 504 F.3d 694,
699 (9th Cir. 2007)
(the district court’s decision whether to dismiss an indictment for vindictive
prosecution is a mixed question of law and fact reviewed de novo).
See
II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 6.
Confessions.
Issues of waiver generally are reviewed de
novo. See United States v.
Lo, 839 F.3d 777, 783 (9th Cir. 2016)
(appeal waiver); United States v. Pacheco-Navarette, 432
F.3d 967, 970 (9th Cir. 2005)
(appeal waivers). “Whether [a] waiver
was knowing and intelligent is a question of fact that we review for clear
error.” United States v. Rodriguez-Preciado, 399
F.3d 1118, 1127
(9th Cir.), amended by 416 F.3d 939 (9th
Cir. 2005);
(Miranda waiver); see also United States v.
Shi, 525 F.3d 709, 728 (9th Cir. 2008) (Miranda waiver); but see United States v. Anglin, 215 F.3d 1064,
1066 (9th Cir. 2000)
(“Whether a particular waiver was made ‘knowing and voluntarily’ is a
determination we make de novo.”), superseded
by rule on other grounds as stated in Lo, 839 F.3d at 784 n.1. “Whether the waiver was voluntary is a mixed
question of fact and law, which we review de novo.” United States v. Amano, 229 F.3d 801,
803 (9th Cir. 2000)
(Miranda waiver).[32]
The issuance of a search warrant by a
magistrate judge is reviewed for clear error.
See United States v. Krupa, 658 F.3d 1174,
1177 (9th Cir. 2011);
United States v. Hill, 459 F.3d 966, 970
(9th Cir. 2006).[33] The magistrate judge’s determination of
probable cause is accorded deference by the reviewing court. See United States v.
Job, 871 F.3d 852, 863 (9th Cir. 2017); Hill, 459 F.3d at 970
(“great deference”); United States v.
Meek, 366 F.3d 705, 712 (9th Cir. 2004)
(“great deference”); United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003)
(“significant deference).
Whether a warrant is sufficiently specific is
reviewed de novo. See United States v. Adjani, 452 F.3d 1140,
1143 (9th Cir. 2006).[34] The scope of a warrant is a question of
law reviewed de novo. See United States v. Hurd, 499 F.3d 963, 965
(9th Cir. 2007).[35] Whether an area is within the protected
curtilage of a home is reviewed de novo.
See United States v. Davis, 530 F.3d 1069,
1077 (9th Cir. 2008);
United States v. Barajas-Avalos, 377
F.3d 1040, 1054 (9th Cir. 2004).[36]
Whether the good faith exception to the
exclusionary rule applies in any given case is subject to de novo review. United States v. Kurt, 986 F.2d 309, 311
(9th Cir. 1993);
United States v. Negrete‑Gonzales,
966 F.2d 1277, 1282 (9th Cir. 1992);
see also United States v. Fowlie, 24 F.3d 1059,
1066 (9th Cir. 1994)
(good faith reliance on a warrant not supported by probable cause).
A district court’s authorization of a wiretap
is reviewed for an abuse of discretion. See United States v. Barragan, 871 F.3d 689,
700 (9th Cir. 2017);
United States v. Rodriguez, 851 F.3d
931, 937 (9th Cir. 2017);
United States v. Canales Gomez, 358 F.3d
1221, 1225 (9th Cir. 2004).[37] However, the court reviews de novo whether the
requisite full and complete statement of facts was submitted in compliance with
18 U.S.C. §
2518(1)(c). See Rodriguez, 851 F.3d at 937; Canales Gomez, 358 F.3d at 1224; United States v. Shryock, 342 F.3d 948,
975 (9th Cir. 2003).[38] Whether other investigative procedures have
been exhausted or why they reasonably appear not likely to succeed is also
reviewed de novo. See United States v.
Lynch, 437 F.3d 902, 912 (9th Cir. 2006)
(but noting that ultimate conclusion that a wiretap is necessary is reviewed
for an abuse of discretion).
The court’s decision to deny a motion to suppress wiretap evidence is
reviewed de novo. See Rodriguez, 851 F.3d at 937; Lynch, 437 F.3d at 913
(reviewing denial of suppression motion); United States v. Reyna, 218 F.3d 1108,
1110 (9th Cir. 2000)
(same). The ultimate question whether a
false statement or omission is necessary to a finding of probable cause is a
mixed question of law and fact reviewed de novo. See
United States v. Tham, 960 F.2d 1391,
1395 (9th Cir. 1992). This court reviews de novo a district court’s
denial of a Franks hearing
challenging the veracity of an affidavit supporting a wiretap application. See
Shryock, 342 F.3d at 975; United States v. Meling, 47 F.3d 1546,
1553 (9th Cir. 1995). The district court’s underlying factual
determinations are reviewed for clear error.
See Shryock, 342 F.3d at 975; Tham, 960 F.2d at 1395.
A trial court’s decision to allow use of
wiretap transcripts during trial and to permit such exhibits in the jury room
is reviewed for an abuse of discretion. See United States v. Rrapi, 175 F.3d 742,
746 (9th Cir. 1999);
United States v. Fuentes‑Montijo,
68 F.3d 352, 354 (9th Cir. 1995).
A trial court’s ruling on a motion for acquittal is reviewed de novo. See United States v.
Wanland, 830 F.3d 947, 952 (9th Cir. 2016); United States v. Sanchez, 639 F.3d 1201,
1203 (9th Cir. 2011);
United States v. Sutcliffe, 505 F.3d
944, 959 (9th Cir. 2007).[39] This court reviews evidence presented against
the defendant in a light most favorable to the government to determine whether
any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.[40] See United States v.
Mincoff, 574 F.3d 1186, 1191-92 (9th Cir. 2009); see also United States v. Yoshida, 303 F.3d 1145,
1149 (9th Cir. 2002)
(noting standard and explaining deference owed to jury); United States v. Magallon-Jimenez, 219
F.3d 1109, 1112 (9th Cir. 2000)
(noting standard applies also to bench trials).
The denial of a motion for judgment of
acquittal based on the untimeliness of the motion involves factual findings
reviewed under the clearly erroneous standard.
See United States v.
Mullins, 992 F.2d 1472, 1478 (9th Cir. 1993); United States v. Stauffer, 922 F.2d 508,
516 (9th Cir. 1990).
When a defendant fails to move for acquittal
during trial, review is limited to plain error. See United States v. Ross, 338 F.3d 1054, 1057 (9th Cir. 2003). Similarly, when a defendant fails to renew a
motion for judgment of acquittal at the close of all evidence in a jury trial,
this court reviews only for plain error to prevent a miscarriage of
justice. See United States v. Pelisamen, 641 F.3d
399, 408-09 n.6 (9th Cir. 2011);
United States v. Lowry, 512 F.3d 1194,
1198 n.3 (9th Cir. 2008);
United States v. Esquivel-Ortega, 484
F.3d 1221, 1224 (9th Cir. 2007);
United States v. Yossunthorn, 167 F.3d
1267, 1270 n.4 (9th Cir. 1999)
(explaining how defendant may preserve de novo review). No such motion is required, however, in a
bench trial to preserve for appeal a challenge to the sufficiency of the evidence. See
United States v. Atkinson, 990 F.2d 501,
503 (9th Cir. 1993)
(en banc). When a claim of sufficiency
of the evidence is preserved by a motion for acquittal at the close of the
evidence, the appellate court reviews the district court’s denial of the motion
de novo. See United States v. Dann, 652 F.3d 1160,
1168 (9th Cir. 2006);
United States v. Carranza, 289 F.3d 634,
641 (9th Cir. 2002).
A trial court’s decision to admit or exclude
evidence is reviewed for an abuse of discretion. See United States v.
Alvirez, 831 F.3d 1115, 1120 (9th Cir. 2016)
(reviewing decision to admit evidence); United States v. Torres, 794 F.3d 1053,
1059 (9th Cir. 2015)
(reviewing decision to exclude evidence), cert.
denied, 136 S. Ct. 2005
(2016); United States v.
Santini, 656 F.3d 1075, 1077 (9th Cir. 2011)
(per curiam); United States v. Cherer, 513 F.3d 1150,
1157 (9th Cir. 2007).[41] Such rulings will be reversed for an abuse of
discretion only if such nonconstitutional error more likely than not affected
the verdict. See United States v. Edwards, 235 F.3d 1173,
1178 (9th Cir. 2000);
United States v. Ramirez, 176 F.3d 1179,
1182 (9th Cir. 1999);
United States v. Morales, 108 F.3d 1031,
1040 (9th Cir. 1997)
(en banc); see also United States v.
Berber-Tinoco, 510 F.3d 1083, 1092 (9th Cir. 2007)
(“We need not reverse a district court’s decision so long as we have a fair
assurance that the verdict was not substantially swayed by error.”) (quotation
marks omitted). The court’s decision to
exclude evidence as a sanction for destroying or failing to preserve evidence
is also reviewed for an abuse of discretion.
See United States v. Belden, 957 F.2d 671,
674 (9th Cir. 1992).
The district court’s construction or interpretation
of the Federal Rules of Evidence is a question of law subject to de novo
review. See Torres, 794 F.3d at 1059; United States v.
Urena, 659 F.3d 903, 908 (9th Cir. 2011); United States v. W.R. Grace, 504 F.3d
745, 758-59 (9th Cir. 2007).[42] Whether particular evidence falls within the
scope of a rule of evidence is also reviewed de novo. See
United States v. Garrido, 596 F.3d 613,
616 (9th Cir. 2010);
United States v. Durham, 464 F.3d 976,
981 (9th Cir. 2006);
United States v. Lillard, 354 F.3d 850,
853 (9th Cir. 2003).
Questions of the admissibility of evidence
that involve factual determinations, rather than questions of law, are reviewed
for an abuse of discretion. See United States v. Mateo-Mendez, 215 F.3d
1039, 1042 (9th Cir. 2000).[43] When a mixed question of law and fact is
presented, the standard of review turns on whether factual matters or legal
matters predominate. If an “essentially
factual” inquiry is present, or if the exercise of the district court’s
discretion is determinative, then deference is given to the decision of the
district court; otherwise, review is de novo.
See Mateo-Mendez, 215 F.3d at 1042; United States v. Marbella, 73 F.3d 1508,
1515 (9th Cir. 1996).[44]
See II. Criminal Proceedings, C.
Trial Decisions in Criminal Cases, 41. Jury Instructions, b. Adequacy of
Instructions, i. Allen Charges.
A trial court’s decision regarding the
authenticity of evidence is reviewed for an abuse of discretion. See United States v.
Weiland, 420 F.3d 1062, 1072 n.6
(9th Cir. 2005); United States v. Workinger, 90 F.3d
1409, 1415 (9th Cir. 1996). Authentication of evidence is satisfied by
evidence “sufficient to support a finding that the item is what the
proponent claims it is.” Fed. R. Evid. 901(a).[45] The trial court’s conclusion that evidence is
supported by a proper foundation is also reviewed for an abuse of
discretion. See United States v. Pang, 362 F.3d 1187,
1191 (9th Cir. 2004);
United States v. Tank, 200 F.3d 627, 630
(9th Cir. 2000).
Whether a district court is obligated to apply the Batson analysis to a defendant’s claim
of purposeful discrimination is a question of law reviewed de novo. See
United States v. Alanis, 335 F.3d 965,
967 & n.1 (9th Cir. 2003). Whether a particular jury satisfies the
“representative jury” required by Batson is reviewed de novo. See
United States v. Bishop, 959 F.2d 820,
827 (9th Cir. 1992),
overruled on other grounds by United States v.
Nevils, 598 F.3d 1158 (9th Cir. 2010).[46] Whether a prosecutor’s proclaimed reason for
exercising a peremptory challenge is an adequate race-neutral explanation is an
issue of law reviewed de novo. See United States v. Mitchell, 502 F.3d 931,
957 (9th Cir. 2007).[47] When defense counsel fails to preserve a Batson claim, review is limited to plain
error. See United States v. Contreras‑Contreras,
83 F.3d 1103, 1105 (9th Cir. 1996). Note that the court has implied “that an
objection must be made in order to preserve a Batson claim in a habeas case.”
Haney v. Adams, 641 F.3d 1168, 1171 n.5
(9th Cir. 2011).
Where the district court erroneously denies a
peremptory challenge, the court applies “the standard of review that is
appropriate under the circumstances of the district court’s error.” United States v. Lindsey, 634 F.3d 541,
550 (9th Cir. 2011)
(reviewing for plain error where defendant failed to object to district judge’s
miscounting of peremptory challenges).
The district court’s findings of fact as to
the racially discriminatory use of peremptory challenges are reviewed for clear
error. See Mitchell, 502 F.3d at 956.[48]
The trial court’s remedy for a Batson violation is reviewed for an
abuse of discretion. See United States v. Ramirez-Martinez, 273
F.3d 903, 910 (9th Cir. 2001),
overruled in part on other grounds by United States v.
Lopez, 484 F.3d 1186, 1191 (9th Cir. 2007) (en
banc).
The best evidence rule provides that the
original of a “writing, recording, or photograph” is required to prove the
contents thereof. Fed. R. Evid. 1002. A district court’s ruling on the best
evidence rule is reviewed for an abuse of discretion. See
United States v. Bennett, 363 F.3d 947,
952 (9th Cir. 2004).
An alleged Bruton violation is reviewed de novo. See
United States v. Mitchell, 502 F.3d 931,
956 (9th Cir. 2007). When there is no objection at trial, review
is limited to plain error. See United States v. Arias-Villanueva, 998
F.2d 1491, 1507 (9th Cir. 1993),
overruled in part on other grounds as
stated in United States v.
Jimenez-Ortega, 472 F.3d 1102, 1103 (9th Cir. 2007)
(per curiam).
Whether a district court properly applied the correct burden of proof
is a question of law reviewed de novo. See Washington Mut.,
Inc. v. United States, 856 F.3d 711, 721 (9th Cir. 2017); United States v.
Kilby, 443 F.3d 1135, 1140 (9th Cir. 2006); United States v. Banuelos, 322 F.3d 700,
704 (9th Cir. 2003)
(sentencing). Whether the court
improperly shifted the burden of proof is reviewed de novo. See
United States v. Brobst, 558 F.3d 982,
998 (9th Cir. 2009);
United States v. Coutchavlis, 260 F.3d
1149, 1156 (9th Cir. 2001). The trial court’s determination that a
defendant has the burden of proving a defense is reviewed de novo. See
United States v. Beasley, 346 F.3d 930,
933 (9th Cir. 2003);
United States v. McKittrick, 142 F.3d
1170, 1177 (9th Cir. 1998). The trial court’s allocation of the burden of
proof is also reviewed de novo. See United States v. Pisello, 877 F.2d 762,
764 (9th Cir. 1989);
see also United States v. Phelps, 955 F.2d 1258,
1266 (9th Cir. 1992)
(denial of release).
The trial court’s ruling on a chain‑of‑custody
challenge to evidence is reviewed for an abuse of discretion. See
United States v. Matta‑Ballesteros,
71 F.3d 754, 768 (9th Cir. 1995),
amended by 98 F.3d 1100 (9th
Cir. 1996).
The trial court’s decision to admit character
evidence is reviewed for an abuse of discretion. See
United States v. Geston, 299 F.3d 1130,
1137-38 (9th Cir. 2002).[49] If no objection was raised, the court’s
decision to admit the evidence is reviewed for plain error. See United States v.
Smith, 282 F.3d 758, 768 (9th Cir. 2002); United States v. Bracy, 67 F.3d 1421,
1432 (9th Cir. 1995). Whether particular evidence falls within the
scope of Rule 404 is reviewed de novo. See United States v.
Rizk, 660 F.3d 1125, 1131 (9th Cir. 2011); United States v.
Durham, 464 F.3d 976, 981 (9th Cir. 2006); United States v. Lillard, 354 F.3d 850,
853 (9th Cir. 2003);
United States v. Smith, 282 F.3d 758,
768 (9th Cir. 2002).
The district court’s decision to allow a jury
to consider comments made in closing argument is reviewed for an abuse of
discretion. See United States v. Tam, 240 F.3d 797, 802
(9th Cir. 2001).[50] Any improper comments are subject to harmless
error review. See United States v. Brown, 327 F.3d 867,
871 (9th Cir. 2003).[51] The plain error standard applies when there
is no objection. See Brown, 327 F.3d at 871; Tam, 240 F.3d at 802.[52]
Note that prosecutors are forbidden from
commenting on a defendant’s silence. See Griffin v. California, 380 U.S. 609, 615
(1985);
United States v. Atcheson, 94 F.3d 1237,
1246 (9th Cir. 1996). Claimed violations are reviewed de novo. See
United States v. Norwood, 603 F.3d 1063,
1068 (9th Cir. 2010);
United States v. Lopez, 500 F.3d 840,
844 (9th Cir. 2007);
United States v. Bushyhead, 270 F.3d
905, 911 (9th Cir. 2001)
(applying harmless error standard). When
there is no objection, review is limited to plain error. See
United States v. Sanchez, 659 F.3d 1252,
1256 (9th Cir. 2011);
United States v. Amlani, 111 F.3d 705,
714 (9th Cir. 1997).
The district court’s decision to allow
supplemental closing arguments is reviewed for abuse of discretion. See United States v.
Della Porta, 653 F.3d 1043, 1047 (9th Cir. 2011). “Under this standard, the district
judge’s discretion should be preserved unless its exercise could deprive the
defendant of a constitutional right or otherwise prejudice defendant’s
case.” Id. (citations and internal
quotation marks omitted) (relying on United States v. Evanston, 651 F.3d
1080, 1083-84 (9th Cir. 2011)).
A trial court’s decision to admit
coconspirator statements is reviewed for an abuse of discretion, while its
underlying factual determinations that a conspiracy existed and that the
statements were made in furtherance of that conspiracy are reviewed for clear
error. See United States v. Moran, 493 F.3d 1002,
1010 (9th Cir. 2007).[53] In United States v. Pena‑Espinoza, 47
F.3d 356, 360‑61 (9th Cir. 1995),
however, this court stated that “[w]e review de novo the legal question of
whether the government established a prima facie showing of conspiracy but
apply a clearly erroneous standard in reviewing whether a challenged statement
was made in the course and furtherance of the conspiracy.” The court noted that “[t]he standard for
reviewing the prima facie showing is . . . unsettled in this
circuit.” Id. at 361 n.3.
Prior to Bourjaily v. United States, 483 U.S. 171
(1987),
this circuit reviewed de novo the district court’s legal conclusion that a
conspiracy existed. See United States v. Gordon, 844 F.2d 1397,
1402 (9th Cir. 1988)
(reviewing development of standard of review).
In Bourjaily, the Supreme
Court noted that the district court’s factfinding regarding the existence of a
conspiracy and the defendant’s involvement in it was not clearly
erroneous. Bourjaily, 483 U.S. at 181. After Bourjaily,
this court has generally stated that it reviews for clear error the district
court’s findings that there was a conspiracy and that the statements were made
in furtherance of the conspiracy. See Moran, 493 F.3d at 1010. Notwithstanding,
some cases state that the circuit’s standard of review is “unclear.” See
Pena‑Espinoza, 47 F.3d at 361 n.3; United States v. Castaneda, 16 F.3d
1504, 1507 (9th Cir. 1994).
In some instances, this court has simply
stated that “[w]e review for abuse of discretion the district court’s decision
to admit evidence of a co‑conspirator’s statement.” United States v. Garza, 980 F.2d 546,
553 (9th Cir. 1992). This is the correct standard if review is
limited to the trial court’s discretionary decision to admit evidence. In United States v. Peralta, 941 F.2d 1003,
1006 (9th Cir. 1991),
the court noted that the abuse of discretion standard applied to the trial
court’s decision to admit the statements but the trial court’s underlying
findings that there was a conspiracy and that the statements were made in
furtherance of the conspiracy are reviewed for clear error. The correct standard is probably that this
court reviews for abuse of discretion the district court’s decision to admit
coconspirator statements and for clear error the underlying factual
determinations that a conspiracy existed and that the statements were made in
furtherance of that conspiracy. See also Moran, 493 F.3d at 1010; United States v. Shryock, 342 F.3d 948,
981 (9th Cir. 2003)
(stating standard); United States v. Segura‑Gallegos,
41 F.3d 1266, 1271 (9th Cir. 1994);
United States v. Arambula‑Ruiz,
987 F.2d 599, 607 (9th Cir. 1993). There remain some instances, however, where
this court reviews de novo the trial court’s conclusion regarding the existence
of a conspiracy. See Pena‑Espinoza, 47 F.3d at 360‑61; United States v. Vowiell, 869 F.2d 1264,
1267 (9th Cir. 1989).
A trial court has discretion to comment on
the evidence, as long as it makes clear that the jury must ultimately decide
all questions of fact. See United States v. Sager, 227 F.3d 1138,
1145 (9th Cir. 2000);
People of Guam v. McGravey, 14 F.3d
1344, 1348 (9th Cir. 1994). Whether a judge’s comment on a defendant’s
decision not to testify violates the right against self-incrimination is
reviewed de novo. See United States v. Coutchavlis, 260 F.3d
1149, 1156 (9th Cir. 2001).
A prosecutor’s improper comments at closing
argument are reviewed for harmless error.
See United States v. Brown, 327 F.3d 867,
871 (9th Cir. 2003);
United States v. Marcucci, 299 F.3d
1156, 1158 (9th Cir. 2002)
(per curiam); United States v. Hermanek, 289 F.3d
1076, 1098 (9th Cir. 2002)
(vouching). The plain error standard
applies when there is no objection. See Brown, 327 F.3d at 871.
Alleged violations of the Sixth Amendment’s Confrontation Clause are
reviewed de novo. See United States v.
Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017); United States v. Matus-Zayas, 655 F.3d
1092, 1098 (9th Cir. 2011);
United States v. Norwood, 603 F.3d 1063,
1067 (9th Cir. 2010);
Lilly v. Virginia, 527 U.S. 116, 136-37
(1999).[54] However, where defendant fails “to object to
the admission of evidence under the Confrontation Clause, [review is] for plain
error.” See Matus-Zayas, 655 F.3d at 1098
(internal quotation marks and citation omitted); see also Johnson, 875 F.3d at 1278. Allegations that a district court violated
the Confrontation Clause by excluding an area of inquiry on cross-examination
are reviewed de novo. See United States v. Larson, 495 F.3d 1094,
1101 (9th Cir. 2007)
(en banc). However, the district court
retains wide latitude to impose reasonable limits on the scope of questioning
within a given area. See id. A non-constitutional challenge of a trial
court’s restriction on the manner and scope of cross-examination is reviewed
for abuse of discretion. See id. The caselaw was inconsistent prior to Larson.
See United States v.
Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005)
(noting but not resolving conflict).
Confrontation Clause violations are subject
to harmless error analysis. See Johnson, 875 F.3d at 1279; United States v. Orozco-Acosta, 607 F.3d
1156, 1161 (9th Cir. 2010);
Larson, 495 F.3d at 1107-08; United States v. Nielsen, 371 F.3d 574,
581 (9th Cir. 2004).[55]
See
also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 55.
Sixth Amendment Rights.
Whether a regulation is unconstitutional is a
question of law reviewed de novo. See United States v. Bohn, 622 F.3d 1129, 1133
(9th Cir. 2010)
(challenged as exceeding congressional authority); United States v. Elias, 269 F.3d 1003,
1014 (9th Cir. 2001)
(vagueness).[56] Note that the district court’s interpretation
of a regulation is reviewed de novo. See United States v. Bibbins, 637 F.3d 1087,
1090 (9th Cir. 2011);
Bohn, 622 F.3d at 1135; United States v. Willfong, 274 F.3d
1297, 1300 (9th Cir. 2001).[57] An agency’s interpretation of regulations,
however, is entitled to deference. See United States v. McKittrick, 142 F.3d
1170, 1173 (9th Cir. 1998).
The constitutionality of a
statute is a question of law reviewed de novo.
See United States v. Laursen, 847 F.3d 1026,
1031 (9th Cir. 2017),
cert. denied, 138 S. Ct. 218
(2017);
United States v. Xiaoying Tang Dowai,
839 F.3d 877, 879 (9th Cir. 2016),
cert. denied, 138 S. Ct. 58
(2017);
United States v. Sutcliffe, 505 F.3d
944, 953 (9th Cir. 2007)
(interstate threats).[58] The construction or interpretation of a
statute is reviewed de novo. See United States ex
rel. Bennett v. Biotronik, Inc., 876 F.3d 1011, 1016 (9th Cir. 2017); United States v.
King, 660 F.3d 1071, 1076 (9th Cir. 2011)
(Safe Drinking Water Act); United States v. Li, 643 F.3d 1183, 1185
(9th Cir. 2011).[59] The applicability of a statute to a
particular case is a question of law reviewed de novo. See
United States v. Villa-Gonzalez, 208
F.3d 1160, 1165 (9th Cir. 2000)
(AEDPA).
“The district court’s decision to invoke
summary contempt procedures, including its consideration of the need for
immediate action, is reviewed for an abuse of discretion.” See United States v. Rrapi, 175 F.3d 742,
753 (9th Cir. 1999);
see also In re Grand Jury Subpoena, 875 F.3d 1179, 1183 (9th Cir. 2017)
(imposition of contempt sanctions reviewed for abuse of discretion); United States v. Engstrom, 16 F.3d 1006,
1009 (9th Cir. 1994);
but see United States v. Glass, 361 F.3d 580,
587 (9th Cir. 2004)
(noting court “must independently evaluate the need for summary
procedures”). The court’s refusal to
grant a mistrial after holding a defendant in criminal contempt is reviewed for
an abuse of discretion. See United States v. McCormac, 309 F.3d 623,
626 (9th Cir. 2002).
A district court’s findings of fact in
support of a disciplinary order are reviewed for clear error. See United States Dist. Court v. Sandlin, 12
F.3d 861, 864‑65 (9th Cir. 1993). The terms and conditions of a disciplinary
order are reviewed for abuse of discretion.
See Engstrom, 16 F.3d at 1011.
The legality of a sentence imposed for
criminal contempt is reviewed de novo. See
United States v. Carpenter, 91 F.3d
1282, 1283 (9th Cir. 1996) (per curiam), implied overruling on other grounds recognized by United States v.
Broussard, 611 F.3d 1069 (9th Cir. 2010). Whether a magistrate judge has jurisdiction
to impose criminal contempt sanctions is a question of law reviewed de
novo. See Bingman v. Ward, 100 F.3d 653, 656 (9th
Cir. 1996).
Civil contempt orders are reviewed for an
abuse of discretion. See SEC v. Hickey, 322 F.3d 1123, 1128 (9th
Cir.), amended by 335 F.3d 834 (9th
Cir. 2003);
United States v. Ayres, 166 F.3d 991,
995 (9th Cir. 1999).
A trial court’s ruling on a request for a continuance of trial is
reviewed for an abuse of discretion. See United States v.
Wilkes, 662 F.3d 524, 543 (9th Cir. 2011); United States v.
Prime, 431 F.3d 1147, 1154 (9th Cir. 2005).[60] The court’s decision to grant or deny a
motion for continuance made during trial is also reviewed for an abuse of
discretion. See United States v. Nguyen, 88 F.3d 812,
819 (9th Cir. 1996);
United States v. Gonzalez‑Rincon,
36 F.3d 859, 865 (9th Cir. 1994). The decision to deny a motion for continuance
made on the first day of trial is also reviewed for an abuse of discretion. See United States v. Walter-Eze, 869 F.3d
891, 907 (9th Cir. 2017) (morning-of-trial
request for continuance); United States v. Torres‑Rodriguez,
930 F.2d 1375, 1383 (9th Cir. 1991), abrogated on other grounds by Bailey v. United
States, 516 U.S. 137 (1995), superseded by statute as recognized by Welch v. United
States, 136 S. Ct. 1257 (2016). A trial court’s refusal to grant a
continuance of a sentencing hearing is reviewed for an abuse of
discretion. See United States v. Lewis, 991 F.2d 524,
528 (9th Cir. 1993).
A trial court abuses its discretion only if
its denial of a continuance was arbitrary or unreasonable. See Wilkes, 662 F.3d at 543; United States v. Wills, 88 F.3d 704, 711
(9th Cir. 1996). “To reverse a trial court’s denial of a
continuance, an appellant must show that the denial prejudiced [her]
defense.” Gonzalez‑Rincon, 36 F.3d at 865
(internal quotation omitted); see also Wilkes, 662 F.3d at 543. “‘Where the denial of a continuance prevents the
introduction of specific evidence, the prejudice inquiry focuses on the
significance of that evidence.’” Id. (quoting United States v. Rivera-Guerrero, 426
F.3d 1130, 1142 (9th Cir. 2011)).
A trial court’s ruling on the credibility of
a witness is entitled to deference and is reviewed for clear error. See Kirola v. City
& Cty. of San Francisco, 860 F.3d 1164, 1179-82 (9th Cir. 2017).[61] Harmless error review applies when defendant
objects at trial to alleged improper vouching.
See United States v. Hermanek, 289 F.3d
1076, 1098 (9th Cir. 2002). Plain error review applies when defendant
makes no objection to alleged improper vouching. See
United States v. Doss, 630 F.3d 1181,
1193 (9th Cir. 2011); United
States v. Parker, 241 F.3d 1114, 1119 (9th Cir. 2001).[62] A district court commits plain error by
allowing a prosecutor to persist in asking witnesses to comment upon the
veracity of other witnesses. See United States v. Geston, 299 F.3d 1130,
1138 (9th Cir. 2002);
cf. United States v.
Greer, 640 F.3d 1011, 1023-24 (9th Cir. 2011)
(distinguishing between asking whether another witness was “lying” or simply
“mistaken”).
A trial court’s decisions regarding the scope
of cross-examination is reviewed for abuse of discretion. See United States v.
Cazares, 788 F.3d 956, 983 (9th Cir. 2015), cert. denied, 136 S. Ct. 2484
(2016);
United States v. Shryock, 342 F.3d 948,
980 (9th Cir. 2003)
(limiting cross-examination);United States v. Senchenko, 133 F.3d
1153, 1158‑59 (9th Cir. 1998)
(permitting cross-examination).[63] “The trial court does not abuse its
discretion as long as the jury receives sufficient information to appraise the
biases and motivations of the witnesses.”
United States v. Manning, 56 F.3d 1188,
1197 (9th Cir. 1995)
(internal quotation omitted). The failure
to object to questions posed during cross-examination limits review to plain
error. See United States v. Shwayder, 312 F.3d
1109, 1120 (9th Cir. 2002),
amended by 320 F.3d 889 (9th
Cir. 2003);
United States v. Geston, 299 F.3d 1130,
1135 (9th Cir. 2002).
Allegations that a district court violated
the Confrontation Clause by excluding an area of inquiry on cross-examination
are reviewed de novo. See United States v. Larson, 495 F.3d 1094,
1101 (9th Cir. 2007)
(en banc). However, the district court
retains wide latitude to impose reasonable limits on the scope of questioning
within a given area. See id. A non-constitutional challenge of a trial
court’s restriction on the manner and scope of cross examination is reviewed
for abuse of discretion. See id. The caselaw was inconsistent prior to Larson.
See United States v.
Rodriguez-Rodriguez, 393 F.3d 849, 856 (9th Cir. 2005)
(noting but not resolving conflict).
Note that Confrontation Clause violations are subject to harmless error
analysis. See Larson, 495 F.3d at 1107-08.
Whether a court’s limitation on recross‑examination
constitutes a violation of the Confrontation Clause is also reviewed de
novo. See United States v. Baker, 10 F.3d 1374,
1405 (9th Cir. 1993), overruled in part on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000), overruled in part by United States v.
Buckland, 289 F.3d 558 (9th Cir. 2002); United States v. Vargas, 933 F.2d 701,
704 (9th Cir. 1991). Within the bounds of constitutionality,
review of the court’s limitations on recross is for an abuse of
discretion. See Baker, 10 F.3d at 1405.
In habeas review, a state trial court has
“considerable discretion to limit cross-examination … .” Carriger v. Lewis, 971 F.2d 329, 333
(9th Cir. 1992)
(en banc) (internal quotation omitted).
A district
court’s ruling on the admission of documentary evidence is reviewed for abuse
of discretion. See United States v.
Laurienti, 611 F.3d 530, 550 (9th
Cir. 2010) (charts and summaries); United States v. Blitz, 151 F.3d 1002,
1007 (9th Cir. 1998)
(bank records).[64] The decision to seal documents is reviewed
for an abuse of discretion. See Kamakana v. City and County of Honolulu,
447 F.3d 1172, 1178 n.3 (9th Cir. 2006)
(“We review for abuse of discretion …the decision to unseal the judicial
record.”); United States v. Shryock, 342 F.3d 948,
983 (9th Cir. 2003).
Double jeopardy claims are reviewed de
novo. See United States v. Castillo-Basa, 483 F.3d
890, 895 (9th Cir. 2007);
United States v. Male Juvenile (Pierre Y.),
280 F.3d 1008, 1019 (9th Cir. 2002)
(noting review applies to both statutory and constitutional claims).[65]
The district court’s denial of a motion to
dismiss on double jeopardy grounds is reviewed de novo. See
United States v. Lopez-Avila, 678 F.3d
955, 961 (9th Cir. 2012)
(as amended); Castillo-Basa, 483 F.3d at 895; United States v. Hickey, 367 F.3d 888,
891 n.3 (9th Cir. 2004),
amended by 400 F.3d 658 (9th
Cir. 2005);
United States v. Ziskin, 360 F.3d 934,
942-43 (9th Cir. 2003)
(clarifying law).[66] Factual findings, including those on which
denial may be based, are reviewed for clear error. See Lopez-Avila, 678 F.3d at 961; Ziskin, 360 F.3d at 943. Note, however, that the district court’s
determination that the initial dismissal was required by “manifest necessity”
is reviewed for an abuse of discretion. See
United States v. Bonas, 344 F.3d 945, 948
(9th Cir. 2003)
(explaining in n.3 that review is for an abuse of discretion even though
“manifest necessity” is referred to as a finding). Also, a denial of a motion for a hearing on
the issue of double jeopardy is reviewed for an abuse of discretion. See United States v. Hernandez, 80 F.3d
1253, 1261 (9th Cir. 1996),
overruled in part on other grounds as
recognized by United States v.
Foster, 165 F.3d 689, 692 n.5 (9th Cir. 1999)
(en banc).
“[T]he district court’s dismissal of the indictment on the basis of double jeopardy” is reviewed de novo.” United States v. Carothers, 630 F.3d 959, 963 (9th Cir. 2011).
Note there is a distinction between
“objections to multiplicity in the indictment, which can be waived, and
objections to multiplicitous sentences and convictions, which cannot be
waived.” United States v. Zalapa, 509 F.3d 1060,
1063 (9th Cir. 2007). Where
the defendant fails to “‘raise the issue of multiplicity of convictions
and sentences before the district court, … review [of] the district court’s
decision [is] for plain error.’” United States v. Del Toro-Barboza, 673
F.3d 1136, 1148 (9th Cir. 2012)
(quoting Zalapa, 509 F.3d at 1064).
A defendant’s entrapment argument is reviewed
de novo. See United States v.
Sandoval-Mendoza, 472 F.3d 645, 648 (9th Cir. 2006).[67] A trial court’s decision to exclude evidence
of an entrapment defense is also reviewed de novo. See
United States v. Batterjee, 361 F.3d
1210, 1216 (9th Cir. 2004).[68] Whether a jury instruction properly states
the law of entrapment is a question of law subject to de novo review. See United States v. LaRizza, 72 F.3d 775,
778 (9th Cir. 1995).[69] Findings underlying a district court’s
decision not to depart based on sentencing entrapment is reviewed for clear
error. See United States v. Ross, 372 F.3d 1097,
1113-14 (9th Cir. 2004).
In reviewing a district court’s evidentiary rulings,
“the selection of the applicable standard of review is contextual: The de novo
standard applies when issues of law predominate in the district court’s
evidentiary analysis, and the abuse-of-discretion standard applies when the
inquiry is essentially factual.” United States
v. Mateo-Mendez, 215 F.3d 1039, 1042 (9th Cir. 2000)
(internal quotation marks omitted). In reviewing an “essentially factual”
ruling for abuse of discretion, “[w]e review ... any underlying factual
determinations for clear error.” United States
v. Whittemore, 776 F.3d 1074, 1077 (9th Cir. 2015).
United
States v. Fryberg, 854 F.3d 1126, 1130 (9th Cir. 2017).
Evidentiary rulings will be reversed for
abuse of discretion only if such error more likely than not affected the
verdict. See United States v. Pang, 362 F.3d 1187,
1192 (9th Cir. 2004);
United States v. Alvarez, 358 F.3d 1194,
1205 (9th Cir. 2004);
United States v. Workinger, 90 F.3d
1409, 1412 (9th Cir. 1996). When no objection is made, this court may
review for plain error, but may reverse only if the defendant persuades this
court that the error was prejudicial in that it “affected the outcome of the
district court proceeding.” United States v. Sine, 493 F.3d 1021,
1038 (9th Cir. 2007).[70]
Although review of evidentiary rulings is generally
for abuse of discretion, this court has recognized that such issues may present
issues of law which are reviewed de novo.
See Fryberg, 854 F.3d at 1130; United States v.
Lynch, 437 F.3d 902, 913 (9th Cir. 2006)
(reviewing evidentiary ruling that precluded defendant’s proffered defense).[71] For example, the district court’s
interpretations of the Federal Rules of Evidence are reviewed de novo. See United States v.
Urena, 659 F.3d 903, 908 (9th Cir. 2011); United States v. W.R. Grace, 504 F.3d
745, 758-59 (9th Cir. 2007).[72]
A district court has broad discretion whether
to admit extrinsic evidence in a criminal case.
See United States v. Higa, 55 F.3d 448, 452
(9th Cir. 1995). Note, however, that when the issue is framed
as a potential violation of the Sixth Amendment’s Confrontation Clause, review
is de novo. See United States v.
Saya, 247 F.3d 929, 937 (9th Cir. 2001)
(as amended). The district court’s
decision to admit or reject impeachment evidence is reviewed for an abuse of
discretion. See United States v. Geston, 299 F.3d 1130,
1137 (9th Cir. 2002)
(prior bad acts).[73]
A district court’s decision to admit expert
opinion testimony is reviewed for abuse of discretion. See United States v.
Cazares, 788 F.3d 956, 975-76 (9th Cir. 2015), cert. denied, 136 S. Ct. 2484
(2016); United States v.
Gadson, 763 F.3d 1189, 1202 (9th Cir. 2014); United States v. Gonzales, 307 F.3d 906,
909 (9th Cir. 2002)
(noting such decisions will not be reversed unless “manifestly erroneous”).[74] The trial court’s decision to exclude expert
testimony is also reviewed for an abuse of discretion. See United States v.
Laurienti, 611 F.3d 530, 547 (9th Cir. 2010); United States v.
Sandoval-Mendoza, 472 F.3d 645, 652 (9th Cir. 2006).[75] Despite attempts to settle on a single
formulation, cases continue to refer to both “abuse of discretion” and
“manifest error” in discussing the standard of review for decisions on expert
testimony.[76]
When no objection is made, review is limited
to plain error analysis; reversal is mandated only if the district court committed
a clear or obvious error that affected substantial rights or was
prejudicial. See United States v.
Freeman, 498 F.3d 893, 905 (9th
Cir. 2007); United States v. Sherwood, 98 F.3d 402,
408 (9th Cir. 1996);
see also United States v. Varela-Rivera, 279 F.3d
1174, 1177-78 (9th Cir. 2002)
(noting circumstances that preserve defendant’s right of review under abuse of
discretion standard rather than plain error); United States v. Seschillie, 310 F.3d
1208, 1212 (9th Cir. 2002),
(applying harmless error review).
“The trial court has wide discretion in
determining whether particular scientific tests are reliable enough to permit
expert testimony based upon their results.”
United States v. Gillespie, 852 F.2d
475, 480 (9th Cir. 1988)
(citations omitted); see also United States v.
McCaleb, 552 F.3d 1053, 1060 (9th Cir. 2009)
(noting district court has broad discretion when discharging gatekeeping
function).
The district court’s denial of a request for
public funds to hire an expert is reviewed for an abuse of discretion. See United States v. Nelson, 137 F.3d 1094,
1101 n.2 (9th Cir. 1998);
United States v. Labansat, 94 F.3d 527,
530 (9th Cir. 1996). A district court’s failure to rule on a
motion for appointment of an expert witness is deemed a denial of the motion
that is reviewed for an abuse of discretion.
See United States v. Depew, 210 F.3d 1061,
1065 (9th Cir. 2000).
A district court has broad discretion to decide whether to admit
extrinsic evidence in a criminal case. See
United States v. Higa, 55 F.3d 448, 452
(9th Cir. 1995). The court’s decision to admit evidence of
extrinsic acts is reviewed for an abuse of discretion. See United States v. Blackstone, 56 F.3d
1143, 1145 (9th Cir. 1995). Note, however, that when the issue is framed
as a potential violation of the Sixth Amendment’s Confrontation Clause, review
is de novo. See United States v. Saya, 247 F.3d 929, 937
(9th Cir. 2001) (as amended). Review is also de novo of the denial of a
motion for mistrial based on a contention that the jury improperly reviewed extrinsic
evidence. See United States v. Prime, 431 F.3d 1147,
1157 (9th Cir. 2005)
(noting “independent review”); see also United States v. McChesney, 871 F.3d
801, 805 (9th Cir. 2017)
(improper juror contact).
The district court’s interpretation of the federal rules is reviewed de
novo. See
United
States v. Seminole, 865 F.3d 1150, 1152 (9th Cir. 2017) (evidence), petition for cert. filed, No. 17-7180 (Dec. 21, 2017); United States v. Lo, 839 F.3d 777, 783
(9th Cir. 2016),
cert. denied, 138 S. Ct. 354
(2017); United States v. W.R.. Grace, 504 F.3d 745, 758-59 (9th Cir. 2007)
(evidence); United States v. Fort, 472 F.3d 1106,
1109 (9th Cir. 2007)
(criminal procedure).
Whether there has been a violation of a defendant’s Fifth Amendment
right is reviewed de novo. See United States v.
Lopez, 500 F.3d 840, 844 (9th Cir. 2007)
(references to defendant’s silence).[77] A witness’s claim of Fifth Amendment
privilege is reviewed de novo. See Earp
v. Cullen, 623 F.3d 1065, 1070 (9th Cir. 2010) (challenge to invocation of Fifth
Amendment); United States v.
Rubio‑Topete, 999 F.2d 1334, 1338 (9th Cir. 1993). Note that Fifth Amendment violations are
subject to harmless error review. See Lopez, 500 F.3d at 844; United States v. Velarde-Gomez, 269 F.3d
1023, 1034-35 (9th Cir. 2001)
(en banc).
A trial court’s decision to exclude a witness’s
testimony based on an anticipated invocation of the Fifth Amendment privilege
against self-incrimination is reviewed for an abuse of discretion. See United States v. Klinger, 128 F.3d 705,
709 (9th Cir. 1997). The court’s denial of an evidentiary hearing
on the issue is also reviewed for an abuse of discretion. See id.
The district court’s refusal to hold a Kastigar hearing is reviewed for an
abuse of discretion. See United States v. Anderson, 79 F.3d 1522,
1525 (9th Cir. 1996);
United States v. Dudden, 65 F.3d 1461,
1468 (9th Cir. 1995). If a hearing is held, the district court’s
findings of fact are reviewed for clear error.
See Anderson, 79 F.3d at 1525 n.4. Whether a defendant’s testimony is immunized
is a question of law reviewed de novo. See
id. at
1525.
Prosecutors are forbidden from commenting on
a defendant’s decision not to testify. See Griffin v.
California, 380 U.S. 609, 615 (1985).
Whether the district court correctly
construed the hearsay rule is a question of law reviewable de novo. See United States v.
Johnson, 875 F.3d 1265, 1278 (9th Cir. 2017); United States v. Barragan, 871 F.3d 689,
705 (9th Cir. 2017);
United States v. Mitchell, 502 F.3d 931,
964 (9th Cir. 2007).[78] However, a district court’s decision to admit
evidence under an exception to the hearsay rule is reviewed for an abuse of
discretion. See Johnson, 875 F.3d at 1278; United States v.
Molina, 596 F.3d 1166, 1168 (9th Cir. 2010); United States v. Washington, 462 F.3d
1124, 1135 (9th Cir. 2006).[79]
The court’s decision to exclude evidence under the hearsay rule is reviewed for
an abuse of discretion. See Mitchell, 502 F.3d at 964.[80] The court’s decision to consider hearsay at
sentencing is also reviewed for an abuse of discretion. See
United States v. Berry, 258 F.3d 971,
976 (9th Cir. 2001);
United States v. Chee, 110 F.3d 1489,
1492 (9th Cir. 1997).
Note that a ruling that a witness is
unavailable is reviewed for an abuse of discretion. See
United States v. Yida, 498 F.3d 945, 952
(9th Cir. 2007);
United States v. McGuire, 307 F.3d 1192,
1205 (9th Cir. 2002);
United States v. Magana‑Olvera,
917 F.2d 401, 407 (9th Cir. 1990). If a witness is deemed unavailable, the court’s
decision to admit that witness’s statement is reviewed for an abuse of
discretion. See Magana-Olvera, 917 F.2d at 407. The denial of a continuance based upon the
absence of a witness is reviewed for an abuse of discretion. See United States v. Foster, 985 F.2d 466,
469
(9th Cir.), amended by 995 F.2d 882 (9th
Cir. 1993),
and 17 F.3d 1256 (9th
Cir. 1994).
However, the refusal to dismiss based on the
prosecutor’s failure to retain a witness is reviewed de novo. See
United States v.
Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir. 2002); Arizona v. Johnson, 351 F.3d 988, 993
(9th Cir. 2003)
(direct appeal from trial conducted pursuant to 28 U.S.C. § 1442(a)(1)).
In collateral proceedings, “[a] state trial
court’s decision that a witness is constitutionally ‘unavailable’ is an
evidentiary question we review de novo, rather than for an abuse of
discretion.” Acosta-Huerta v. Estelle, 7 F.3d 139,
143 (9th Cir. 1992);
see also Jackson v. Brown, 513 F.3d 1057, 1082-83
(9th Cir. 2008);
Windham v. Merkle, 163 F.3d 1092, 1102
(9th Cir. 1998)
(explaining that de novo review applies to determining whether the Supreme
Court’s standards for unavailability have been met).
“[T]he decision to grant immunity to
prospective defense witnesses is left to the discretion of the executive branch.” United States v. Mendia, 731 F.2d 1412,
1414 (9th Cir. 1984). Informal immunity agreements are reviewed
under ordinary contract law principles: factual determinations are reviewed for
clear error; whether the government has breached the agreement is a question of
law reviewed de novo. See McKnight v. Torres, 563 F.3d 890, 892 (9th
Cir. 2009); United States
v. Wilson, 392 F.3d 1055, 1059 (9th Cir. 2005) (as
amended); United States v. Dudden, 65 F.3d 1461,
1467 (9th Cir. 1995). The denial of a Kastigar hearing is reviewed for an abuse of discretion. See Dudden, 65 F.3d at 1468;
but see United States v. Young, 86 F.3d 944, 947
(9th Cir. 1996)
(district court’s denial of a defense motion for an evidentiary hearing on use
immunity raises mixed questions of fact and law reviewed de novo).
The district court’s finding that the
government’s evidence was not tainted by a grant of use immunity is reviewed
under the clearly erroneous standard. See
United States v. Montoya, 45 F.3d 1286,
1291 (9th Cir. 1995);
United States v. Baker, 10 F.3d 1374,
1415 (9th Cir. 1993),
overruled in part on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000), overruled in part by United States v.
Buckland, 289 F.3d 558 (9th Cir. 2002)
(en banc). Whether the government has violated its
obligation to disclose immunity agreements with a prosecution witness is a
question of law reviewed de novo. See
United States v. Cooper, 173 F.3d 1192,
1203 (9th Cir. 1999). Whether a district court erred by refusing to
compel the government to grant immunity to a defense witness is a mixed
question of law and fact reviewed de novo.
See United States v. Alvarez, 358 F.3d 1194,
1216 (9th Cir. 2004). Underlying factual findings are reviewed for
clear error. See id.
The district court’s decision to admit impeachment evidence is reviewed
for an abuse of discretion. See United
States v. Geston, 299 F.3d 1130, 1137 (9th Cir. 2002) (prior bad acts).[81] The trial court’s refusal to allow impeachment
evidence is also reviewed for an abuse of discretion. See United States v. Rowe, 92 F.3d 928, 933
(9th Cir. 1996)
(prior crime).
“Whether a judge has the power to try a
defendant in absentia is an issue of law, which we consider de novo.” United States v. Houtchens, 926 F.2d
824, 826 (9th Cir. 1991). “The judge’s factual finding that a defendant
has knowingly and voluntarily failed to appear at trial is reviewable for clear
error.” Id.
The court reviews a district court’s
sentencing decision following a sentencing hearing conducted in the defendant’s
absence for abuse of discretion. United States v.
Ornelas, 828 F.3d 1018, 1021 (9th Cir.), cert.
denied, 137 S. Ct. 522
(2016). “[T]he district court’s factual determination
that the defendant was ‘voluntarily absent’ from the proceedings is reviewed
for clear error.” Id.
Decisions involving in‑court
identification are reviewed for an abuse of discretion. See
United States v. Lumitap, 111 F.3d 81,
83‑84 (9th Cir. 1997);
United States v. Duran, 4 F.3d 800, 803
(9th Cir. 1993). The trial court’s decision to conduct an in‑court
identification process is reviewed for an abuse of discretion. See
United States v. Burdeau, 168 F.3d 352,
358 (9th Cir. 1999).[82] The admission of in‑court
identification testimony is reviewed for an abuse of discretion. See
United States v. Dixon, 201 F.3d 1223,
1229 (9th Cir. 2000);
United States v. Gregory, 891 F.2d 732,
734 (9th Cir. 1989). The denial of a request for an in‑court
lineup is also reviewed for an abuse of discretion. See Dixon, 201 F.3d at 1229; Lumitap, 111 F.3d at 83.
Whether a defendant received ineffective
assistance of counsel is reviewed de novo.
See Heishman v. Ayers, 621 F.3d 1030, 1036
(9th Cir. 2010)
(per curiam); Womack v. Del Papa, 497 F.3d 998, 1002
(9th Cir. 2007)
(§ 2254); United States v. Labrada-Bustamante, 428
F.3d 1252, 1260 (9th Cir. 2005);
Allen v. Woodford, 395 F.3d 979, 992
(9th Cir. 2005)
(§ 2254); United States v. Rodrigues, 347 F.3d
818, 823 (9th Cir. 2003)
(§ 2255); United States v. Mack, 164 F.3d 467, 471
(9th Cir. 1999)
(direct appeal).[83]
Note that claims of ineffective assistance of
counsel are generally inappropriate on direct appeal. See United States v.
Rahman, 642 F.3d 1257, 1259-60 (9th Cir. 2011)
(declining to review ineffective assistance of counsel claim on direct appeal);
United States v. Lillard, 354 F.3d 850,
853 (9th Cir. 2003)
(explaining rationale); United States v. McKenna, 327 F.3d 830,
845 (9th Cir. 2003)
(noting exceptions);[84] see also United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003)
(electing to review claim on direct appeal); United States v. Mack, 164 F.3d 467, 471
(9th Cir. 1999)
(same).
A defendant claiming ineffective assistance of counsel must demonstrate
(1) that counsel’s actions were outside the wide range of professionally
competent assistance, and (2) that defendant was prejudiced by reason of
counsel’s actions. Strickland v. Washington, 466 U.S. 668,
687‑90 (1984);
United States v. Walter-Eze, 869 F.3d
891, 900 (9th Cir. 2017);
Mancuso v. Olivarez, 292 F.3d 939,
953-54 (9th Cir. 2002)
(explaining standards), overruled on other grounds by Slack v. McDaniel,
529 U.S. 473 (2000);
see also Leavitt v. Arave, 646 F.3d 605, 608 (9th Cir. 2011)
(habeas). “An exception to this general
rule applies where ‘counsel is burdened by an actual conflict of interest.’ In
such cases, where it is often ‘difficult to measure the precise effect on the
defense of representation corrupted by conflicting interests,’ the Supreme
Court has held that prejudice is presumed. Walter-Eze, 869 F.3d at 900
(quoting Strickland, 466 U.S. at 692).
The district court’s findings of fact are
reviewed for clear error. See Leavitt, 646 F.3d at 608; United States v. Alvarez-Tautimez, 160
F.3d 573, 575 (9th Cir. 1998).
The district court’s decision not to conduct
an evidentiary hearing on an ineffective assistance of counsel claim is
reviewed for an abuse of discretion. See Stankewitz v.
Woodford, 365 F.3d 706, 714 (9th Cir. 2004);[85] see also Hovey v. Ayers, 458 F.3d 892, 910 (9th
Cir. 2006)
(refusing expert witnesses during evidentiary hearing).
See II. Criminal Proceedings, C.
Trial Decisions in Criminal Cases, 41. Jury Instructions, b. Adequacy of
Instructions & j. Jewell Instructions.
“A federal judge has broad discretion in
supervising trials, and his or her behavior during trial justifies reversal
only if [he or she] abuses that discretion.”
United States v. Laurins, 857 F.2d 529,
537 (9th Cir. 1988)
(citations omitted).[86] Allegations of judicial misconduct are
reviewed for plain error when a defendant fails to object at trial. See
United States v. Morgan, 376 F.3d 1002,
1007 (9th Cir. 2004);
United States v. Springer, 51 F.3d 861,
864 n.1 (9th Cir. 1995).
A district court’s decision whether to grant a motion for recusal is
reviewed for an abuse of discretion. See United States v.
McChesney, 871 F.3d 801, 807-08 (9th Cir. 2017)
(no abuse of discretion by denying recusal motion); United States v. Sutcliffe, 505 F.3d
944, 957-58 (9th Cir. 2007);
United States v. Martin, 278 F.3d 988,
1005 (9th Cir. 2002).[87] When recusal is not raised below, the
allegation of judicial bias is reviewed for plain error. See United States v.
Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991).
The standard of review of a trial court’s
decisions regarding jury incidents is abuse of discretion. See
United States v. Simtob, 485 F.3d 1058,
1064 (9th Cir. 2007);
United States v. Martinez-Martinez, 369
F.3d 1076, 1081-82 (9th Cir. 2004)
(noting “extremely deferential standard”).[88] The district court has considerable
discretion in determining whether to hold an investigative hearing on
allegations of jury misconduct or bias and in defining its nature and extent. See United States v. Olano, 62 F.3d 1180,
1192 (9th Cir. 1995). “Our review ultimately is limited to
determining whether the district court, in view of all the circumstances, so
abused its discretion that [the defendant] must be deemed to have been deprived
of his Fifth Amendment due‑process or Sixth Amendment impartial‑jury
guarantees.” Id. (internal quotation
omitted). The presence of a biased juror
cannot be harmless; the error requires a new trial without the showing of
prejudice. See Simtob, 485 F.3d at 1064; United States v. Long, 301 F.3d 1095,
1101 (9th Cir. 2002);
Dyer v. Calderon, 151 F.3d 970, 973 n.2
(9th Cir. 1998)
(en banc). Note in United States v. Mitchell, 568 F.3d
1147, 1150 (9th Cir. 2009),
the court recognized there was an ambiguity and/or conflict with regard to
whether plain error review is appropriate for unpreserved claims of juror bias,
but declined to resolve the issue.
A district court’s decision to replace a juror
with an alternate is reviewed for an abuse of discretion. See United States v.
Alexander, 48 F.3d 1477, 1485 (9th
Cir. 1995). The
trial court’s decision to excuse a juror after deliberations have commenced is also
reviewed for abuse of discretion. See
United States v. Christensen, 828 F.3d
763, 806 (9th Cir. 2015), cert. denied, 137 S. Ct. 628
(2017),
and cert. denied sub nom. Kachikan v. United
States, 137 S. Ct. 2109 (2017); United States
v. Vartanian, 476 F.3d 1095, 1098
(9th Cir. 2007).[89] Deference is paid to the trial judge, since
the trial judge is uniquely qualified to appraise the probable effect of
misconduct upon the jury, such as the materiality of extraneous material and
its prejudicial nature. See United States v. Madrid, 842 F.2d 1090,
1092 (9th Cir. 1988);[90] but see United States v. Symington, 195 F.3d
1080, 1085 (9th Cir. 1999)
(noting district court’s discretion is not unbounded).
A district court’s decision to excuse a juror
for just cause is reviewed for an abuse of discretion. See
United States v. Lindsey, 634 F.3d 541,
553 (9th Cir. 2011);
United States v. Mitchell, 502 F.3d 931,
955 (9th Cir. 2007);
United States v. Gonzalez, 214 F.3d
1109, 1112 (9th Cir. 2000)
(noting also that implied bias presents a mixed issue of law and fact reviewed
de novo).[91] The court’s decision not to excuse a juror is
also reviewed for an abuse of discretion.
See Long, 301 F.3d at 1101;[92] see also United States v. Martinez-Salazar, 528
U.S. 304, 307 (2000)
(reversing Ninth Circuit’s ruling that the erroneous refusal to excuse a juror
for cause that forces defendant to use peremptory challenge to exclude juror
violates defendant’s Fifth Amendment due process rights and requires automatic
reversal).
A district court’s order granting a new trial
based on juror misconduct is reviewed for an abuse of discretion. See United States v. Edmond, 43 F.3d 472,
473 (9th Cir. 1994);
but see United States v. Keating, 147 F.3d 895,
899 (9th Cir. 1998)
(grant of motion for new trial based on jurors’ improper exposure to extrinsic
evidence is subject to “independent” review).
The court’s denial of a motion for a new trial based on allegations of
juror misconduct is also reviewed for an abuse of discretion. See Christensen, 828 F.3d at 806; United States v. Rosenthal, 454 F.3d
943, 949 (9th Cir. 2006).[93] The district court’s findings of fact
relating to the issue of juror misconduct are reviewed for clear error. See Christensen, 828 F.3d at 806; Long, 301 F.3d at 1101.[94]
In habeas, whether an instance of juror
misconduct was prejudicial to the defendant presents a mixed question of law
and fact reviewed de novo. See Hamilton v. Ayers, 583 F.3d 1100,
1106-07 (9th Cir. 2009); see also Caliendo v. Warden, 365 F.3d 691, 694
(9th Cir. 2004)
(noting issues of juror misconduct are reviewed de novo).
The trial court’s decision to allow a jury to
have exhibits or transcripts during deliberations is reviewed for an abuse of
discretion. See United States v. Chadwell, 798 F.3d 910,
914 (9th Cir. 2015) (noting that the decision to send properly admitted
exhibits to the jury room during deliberations is within the discretion of the
trial court); United States v. Richard, 504 F.3d 1109,
1113-1116 (9th Cir. 2007)
(noting that court’s discretion is not boundless and listing factors).[95] The court’s decision to replay tape‑recorded
conversation evidence to the jury is reviewed for an abuse of discretion. See United States v. Rrapi, 175 F.3d 742,
746 (9th Cir. 1999). The trial court’s decision to reread
testimony to the jury or permit the jury to have excerpts of the testimony is
also reviewed for an abuse of discretion.
See United States v.
Stinson, 647 F.3d 1196, 1217 (9th
Cir. 2011); Richard, 504 F.3d at 1113.[96]
A trial court’s finding that transcripts are
accurate and complete cannot be disturbed unless clearly erroneous. See United States v. Carrillo, 902 F.2d
1405, 1410 (9th Cir. 1990). A court’s decision to allow a jury to have
English translations is reviewed for an abuse of discretion. See
United States v. Abonce-Barrera, 257 F.3d 959, 963 (9th Cir. 2001).[97]
The erroneous inclusion of audio tapes
allowed in the jury room that were not admitted into evidence is constitutional
error subject to the harmless error standard.
See Eslaminia v. White, 136 F.3d 1234, 1237
& n.1 (9th Cir. 1998)
(habeas).[98]
The trial court decision whether to allow jurors to take notes during trial is reviewed for an abuse of discretion. See United States v. Baker, 10 F.3d 1374, 1403 (9th Cir. 1993), overruled in part on other grounds by United States v. Nordby, 225 F.3d 1053 (9th Cir. 2000), overruled in part by United States v. Buckland, 289 F.3d 558 (9th Cir. 2002) (en banc).
The denial of a motion for mistrial based on a contention that the jury was improperly exposed to extrinsic evidence is reviewed de novo. See United States v. Prime, 431 F.3d 1147, 1157 (9th Cir. 2005) (noting “independent review”).
A district court’s response to a jury’s inquiry is reviewed for an
abuse of discretion. See United States v.
Humphries, 728 F.3d 1028, 1031 (9th Cir. 2013); United States v. Verduzco, 373 F.3d
1022, 1030 n.3 (9th Cir. 2004);
United States v. Romero-Avila, 210 F.3d
1017, 1024 (9th Cir. 2000)
(explaining abuse of discretion standard).[99] Whether the district court’s response
correctly states the law or violates due process is reviewed de novo. Humphries, 373 F.3d at 1031.
The
court’s decision whether to give supplemental instructions is also reviewed for
an abuse of discretion. See Avila v. Los
Angeles Police Dep’t, 758 F.3d 1096, 1104 (9th Cir. 2014)
(no abuse of discretion in declining request for supplemental instructions); United States v. McIver, 186 F.3d 1119,
1130 (9th Cir. 1999), overruled on other grounds as recognized by United States v.
Pineda-Moreno, 688 F.3d 1087, 1091 (9th Cir. 2012); United States v. Solomon, 825 F.2d 1292,
1295 (9th Cir. 1987)
(“[N]ecessity, extent and character of supplemental instructions lies within
the discretion of the trial court.”).[100] When defendant does not challenge the
supplemental instruction or fails to state distinctly the grounds for the
objection, review is limited to plain error.
See United States v. Banks, 514 F.3d 959,
974 (9th Cir. 2008).[101] Whether supplemental jury instructions
correctly state the elements of an offense is a question of law reviewed de
novo. See United States v.
Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004); United States v. Si, 343 F.3d 1116, 1126
(9th Cir. 2003).
A
district court’s formulation of jury instructions is reviewed for an abuse of discretion. See Peralta v. Dillard, 744 F.3d 1076, 1082 (9th
Cir. 2014) (en banc); United States v. Liew, 856 F.3d 585,
595-96 (9th Cir. 2017);
United States
v. Kaplan, 836 F.3d 1199, 1214
(9th Cir. 2016) (wording of jury instructions), cert.
denied, 137 S. Ct. 1392
(2017);
United States
v. Hofus, 598 F.3d 1171, 1174 (9th
Cir. 2010); United States v. Dearing, 504 F.3d 897,
900 (9th Cir. 2007);
United States v. Garcia-Rivera, 353 F.3d
788, 791-92 (9th Cir. 2003);
United States v. Franklin, 321 F.3d
1231, 1240-41 (9th Cir. 2003)
(considering “‘the instructions as a whole, and in context’”); United States v. Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000) (“The
trial court has substantial latitude so long as its instructions fairly and
adequately cover the issues presented.” (internal quotation marks and citation
omitted)).[102] “The
‘relevant inquiry is whether the instructions as a whole are misleading or
inadequate to guide the jury’s deliberation.’ ” United States
v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (quoting United States
v. Frega, 179 F.3d 793, 806 n.16 (9th Cir. 1999)). See
also Liew, 856 F.3d at 596.
Whether
jury instructions omit or misstate elements of a statutory crime, see United States v.
Kaplan, 836 F.3d 1199, 1214 (9th
Cir. 2016), cert. denied, 137 S. Ct. 1392
(2017);
United States
v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010),[103]
or adequately cover a defendant’s proffered defense, see United States v.
Kleinman, 859 F.3d 825, 841 (9th Cir. 2017); United States v. Morsette, 622 F.3d
1200, 1201 (9th Cir. 2010)
(per curiam),[104] are
questions of law reviewed de novo.
The
appropriate standard for reviewing a district court’s denial of a defendant’s
requested jury instruction depends on the issue being reviewed. See United States v. Hairston, 64 F.3d 491,
493-94 (9th Cir. 1995)
(citing United States v. Duran, 59 F.3d 938, 941
(9th Cir.1995));
see also United States v. Somsamouth, 352 F.3d 1271, 1274 (9th Cir. 2003).
The
district court’s denial of a requested jury instruction due to insufficient
evidence to support the instruction is reviewed for abuse of discretion. United States v. Ocampo-Estrada, 873
F.3d 661, 665 (9th Cir. 2017). The denial of a defendant’s jury instruction
due to an inadequate factual basis is reviewed for an abuse of discretion. See United States v.
Daane, 475 F.3d 1114, 1119 (9th Cir. 2007); United States v. Wills, 88 F.3d 704, 715
(9th Cir. 1996)
(noting clarification of standard); see
also United States v.
Marguet-Pillado, 648 F.3d 1001, 1006 (9th Cir. 2011). Denial of a jury instruction based on a question
of law is reviewed de novo. See United States v.
Castagana, 604 F.3d 1160, 1163 n.2 (9th Cir. 2010); United States v. Wiseman, 274 F.3d 1235,
1240 (9th Cir. 2001);
United States v. Eshkol, 108
F.3d1025, 1028 (9th Cir. 1997).
A
district court’s refusal to give a lesser-included offense involves two
questions. The first question – whether
the offense for which instruction is sought is a lesser-included offense of the
charged offense – is a legal question subject to de novo review. Second, the district court considers whether
the record contains evidence that would support conviction of the lesser
offense – an inquiry reviewed for abuse of discretion. See
United States v. Rivera-Alonzo, 584 F.3d
829, 832 (9th Cir. 2009);
United States v. Arnt, 474 F.3d
1159, 1163 (9th Cir. 2007)
(clarifying that there is no split in Ninth Circuit authority). [105] If the
defendant did not request the lesser included offense instruction or does not
object to its omission, review is only for plain error. See United States v. Anderson, 201 F.3d
1145, 1148 (9th Cir. 2000).
The
district court’s decision to use a special verdict form over a defendant’s
objection is reviewed for an abuse of discretion. See United States v. Reed, 147 F.3d 1178,
1180 (9th Cir. 1998). The formulation of a special verdict form is
reviewed for an abuse of discretion. See United States v.
Stinson, 647 F.3d 1196, 1218 (9th Cir. 2011). Any error is subject, however, to a harmless
error review. See United States v. Perez, 129 F.3d 1340,
1342 (9th Cir. 1997). When a defendant does not object, review is
for plain error. See United States v. Vasquez-Velasco, 15
F.3d 833, 847 (9th Cir. 1994). In some instances, however, when the
information sought in a special verdict is relevant to the sentence imposed,
the government has a duty to request a special verdict, and review of the
sentence imposed is reviewed de novo. See
United States v. Garcia, 37 F.3d 1359,
1370 (9th Cir. 1994), abrogated on other grounds by United States v.
Jackson, 167 F.3d 1280 (9th Cir. 1999). “Reconciliation of the special verdict form”
is reviewed de novo. Flores v. City of Westminster, 873 F.3d
739, 756 (9th Cir. 2017).
Whether
a jury instruction violated due process is reviewed de novo. See United States v. Lopez, 500 F.3d 840,
847 (9th Cir. 2007);
United States v. Trevino, 419 F.3d 896, 902 (9th Cir. 2005). For example, whether an instruction violates
due process by creating an unconstitutional presumption or inference is
reviewed de novo. See Tapia v. Roe, 189 F.3d 1052, 1056 (9th
Cir. 1999)
(habeas); United States v. Warren, 25 F.3d 890,
897 (9th Cir. 1994). Whether a constitutionally deficient jury
instruction is harmless error is reviewed de novo. See Tapia, 189 F.3d at 1055-56.
In
reviewing jury instructions, the relevant inquiry is whether the instructions
as a whole are misleading or inadequate to guide the jury’s deliberation. See United States v. Houston, 648 F.3d 806,
818 (9th Cir. 2011);
United States v.
Reed, 575 F.3d 900, 926 (9th
Cir. 2009); United States v. Cherer, 513 F.3d 1150,
1154 (9th Cir. 2008);
United States v. Tatoyan, 474 F.3d 1174,
1179-80 (9th Cir. 2007);
United States v. Garcia-Rivera, 353 F.3d
788, 792 (9th Cir. 2003);
United States v. Dixon, 201 F.3d 1223, 1230 (9th Cir. 2000); United States v. Knapp, 120 F.3d 928,
930 (9th Cir. 1997). The district court has substantial latitude
so long as its instructions fairly and adequately cover the issues presented. See Houston, 648 F.3d at 818; Cherer, 513 F.3d at 1154.[106] A single instruction to a jury may not be
judged in artificial isolation, but must be viewed in the context of the
overall charge. See Houston, 648 F.3d at 818; Reed, 575 F.3d at 926; Ho v. Carey, 332 F.3d 587, 593 (9th Cir. 2003) (granting habeas writ
based on jury instruction error); Dixon, 201 F.3d at 1230.
“Jury
instructions, even if imperfect, are not a basis for overturning a conviction
absent a showing that they prejudiced the defendant. United States v. de Cruz, 82 F.3d 856, 864-65 (9th Cir. 1996).” United States v. Christensen, 828 F.3d
763, 786 (9th Cir. 2015),
cert. denied, 137 S. Ct. 628,
(2017),
and cert. denied sub nom. Kachikan v. United
States, 137 S. Ct. 2109 (2017). See
also United States v. de Cruz, 82 F.3d 856, 864 (9th Cir. 1996); United States v. Lunstedt, 997 F.2d 665,
668 (9th Cir. 1993).
A
district court’s failure to instruct the jury on an element of a crime may be
harmless if the appellate court concludes that it is “‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty
absent the error.’” United States v. Cherer, 513 F.3d 1150,
1155 (9th Cir. 2008);
United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1197 (9th Cir. 2000) (en
banc).
When
there is no objection to the jury instructions at the time of trial, the court
of appeals will review only for plain error.
See United States v.
Conti, 804 F.3d 977, 981 (9th Cir. 2015); Jones v. United States, 527 U.S. 373,
388 (1999);
United States v. Bhagat, 436 F.3d 1140,
1147 (9th Cir. 2006);
United States v. Recio, 371 F.3d 1093,
1099-1102 (9th Cir. 2004)
(explaining when review is for plain error or harmless error); United States v. Franklin, 321 F.3d 1231, 1240 (9th Cir. 2003). Plain error is error that is plain and affects
substantial rights. See Conti, 804 F.3d at 981; Franklin, 321 F.3d at 1240; see also United States v
Houston, 648 F.3d 806, 813 (9th Cir. 2011).[107]
If the district court gives jury
instructions requested by the defendant, those instructions are nonreviewable
under the invited error doctrine. See United States v.
Hui Hsiung, 778 F.3d 738, 747
(9th Cir.), cert. denied, 135 S. Ct. 2837
(2015);
United States v. Burt, 143 F.3d 1215,
1217 (9th Cir. 1998);
United States v. Perez, 116 F.3d 840,
844 (9th Cir. 1997)
(en banc). In Perez, however, this court limited that rule to situations where
the defendant has “waived” his rights in contrast to “forfeited.” See Burt, 143 F.3d at 1217; Perez, 116 F.3d at 845, 846. Thus, where a defendant submits flawed
instructions, but neither defendant, government, nor the court is aware of the
mistake, the error is not waived, but merely forfeited, and may be reviewed
under the plain error standard. See
Burt, 143 F.3d at 1217-18; Perez, 116 F.3d at 846; see also United States v. Johnson, 132 F.3d 1279,
1284-85 (9th Cir. 1997)
(applying plain error in same circumstances).
When defendant rejects an instruction suggested by judge at trial,
invited error does not preclude review of that omitted instruction. See
United States v. Alferahin, 433 F.3d
1148, 1154 n.2 (9th Cir. 2006).
The
trial court’s decision to instruct the jury with an Allen charge is reviewed for an abuse of discretion. See United States v. Berger, 473 F.3d 1080,
1089 (9th Cir. 2007).[108] The
court’s delivery of an Allen charge
must be upheld unless it is clear from the record that the charge had an
impermissibly coercive effect on the jury.
See Berger, 473 F.3d 1089; United States v. Steele, 298 F.3d 906,
909-10 (9th Cir. 2002);
United States v. Daas, 198 F.3d 1167,
1179 (9th Cir. 1999)
(modified charge); United States v. Nelson, 137 F.3d 1094,
1109 (9th Cir. 1998). Note,
however, that whether a judge has improperly coerced a jury’s verdict is a
mixed question of law and fact reviewed de novo. See Berger, 473 F.3d at 1089; see also United States v. Della Porta, 653 F.3d
1043, 1047 (9th Cir. 2011).
A
district court’s decision to give a “deliberate ignorance” or Jewell instruction is reviewed for abuse
of discretion. See United States v. Heredia, 483 F.3d 913,
922 (9th Cir. 2007)
(en banc); United States v. Walter-Eze, 869 F.3d
891, 908 (9th Cir. 2017). Heredia overruled the line of cases
calling for de novo review. See United States v. Shannon, 137 F.3d 1112,
1117 (9th Cir. 1998),
overruled by Heredia, 483 F.3d 913.
A
district court’s voir dire procedures are reviewed for an abuse of discretion,
and its findings regarding juror impartiality is for manifest error. See United States v.
Padilla-Mendoza, 157 F.3d 730, 733 (9th Cir. 1998); United States v. Warren, 25 F.3d 890,
894 (9th Cir. 1994)
(“The district court’s selection of procedures for the exercise of peremptory
challenges is reviewed for an abuse of discretion.”).[109] Although this court reviews the district
court’s voir dire for abuse of discretion, whether a defendant was deprived of
a fair trial by the nature of the voir dire is a legal question reviewed de
novo. See United States v.
Milner, 962 F.2d 908, 911 (9th Cir. 1992).
The
district court has considerable control over the administration of peremptory
challenges and the scope of questioning permitted during voir dire. See
United States v Toomey, 764 F.2d 678
(9th Cir. 1985). The sufficiency of voir dire questions asked
by the district court is also reviewed for an abuse of discretion, see United States v. Payne, 944 F.2d 1458,
1474 (9th Cir. 1991),
as is the court’s refusal to ask defendant’s requested voir dire questions, see United States v.
Sarkisian, 197 F.3d 966, 978 (9th Cir. 1999).
Where
the district court erroneously denies a peremptory challenge, the court applies
“the standard of review that is appropriate under the circumstances of the
district court’s error.” United States v. Lindsey, 634 F.3d 541,
550 (9th Cir. 2011)
(reviewing for plain error where defendant failed to object to district judge’s
miscounting of peremptory challenges).[110] The court may also abuse its discretion by
failing to ask questions reasonably sufficient to test jurors for bias or
partiality. See United States v.
Payne, 944 F.2d 1458, 1474 (9th Cir. 1991).
Where
there is no objection to voir dire, review is limited to plain error. See United States v.
Mitchell, 502 F.3d 931, 955 (9th Cir. 2007); United States v. Mendoza-Reyes, 331 F.3d
1119, 1121 (9th Cir. 2003)
(per curiam). The district court’s failure to sua sponte conduct supplemental
voir dire is reviewed for plain error. See United States v.
Gay, 967 F.2d 322, 325 (9th Cir. 1992).
The
number of peremptory challenges permitted by the Federal Rules of Criminal
Procedure presents a question of law reviewed de novo. See United States v.
Machado, 195 F.3d 454, 456 (9th Cir. 1999).
The
district court’s decisions regarding incidents of jury misconduct are reviewed
for an abuse of discretion. See United States v. Simtob, 485 F.3d 1058,
1064 (9th Cir. 2007); United States v.
Shryock, 342 F.3d 948, 973 (9th Cir. 2003). Thus, the district court’s decision to excuse[111]
or to not excuse[112]
a juror for just cause is reviewed for an abuse of discretion. “When the defendant has made a timely
objection to an error, the harmless error standard generally applies, and the
government bears the burden of proving that the error was not
prejudicial.” United States v. Beard, 161 F.3d 1190,
1193 (9th Cir. 1998).
A
district court’s decision to replace a juror with an alternate is reviewed for
an abuse of discretion. See United States v. Alexander, 48
F.3d1477, 1485 (9th Cir. 1995); Beard, 161 F.3d at 1194-95
(discussing application of harmless error review); United States v. Gay, 967 F.2d 322, 325
(9th Cir. 1992).
A challenge to the composition of a
jury is reviewed de novo. See United States v.
Torres-Hernandez, 447 F.3d 699, 703 (9th Cir. 2006); Thomas v. Borg, 159 F.3d 1147, 1149 (9th Cir. 1998)
(habeas).
“The
standards of review for rulings on certain aspects of the Batson analysis are settled in this circuit.” Tolbert v. Page, 182 F.3d 677, 680 n.5
(9th Cir. 1999)
(explaining standards of review for Batson
challenges) (en banc).
“When
considering a Batson challenge, we
review de novo whether a prosecutor’s proclaimed reason for exercising a
peremptory challenge was an adequate explanation.” United States v. You, 382 F.3d 958, 967
(9th Cir. 2004)
(citation omitted); see also United States v.
Steele, 298 F.3d 906, 910 (9th Cir. 2002).
“‘A trial court’s determination on
discriminatory intent is a finding of fact entitled to deference and is
reviewed for clear error.’” You, 382 F.3d at 967-68. For example, the determination whether a
defendant established a prima facie showing of racial discrimination under Batson
is reviewed for clear error. See Steele, 298 F.3d at 910; United States v. Hernandez-Herrera, 273
F.3d 1213, 1218 (9th Cir. 2001). Clear error review also applies to the
question whether the defendant has satisfied the ultimate burden of proving
purposeful discrimination. See Paulino v.
Harrison, 542 F.3d 692, 699 (9th Cir. 2008); Tolbert, 182 F.3d at 680 n.5.[113]
“[W]hether
the challenged juror is a member of a protected class for Batson purposes is a question of law reviewed de novo.” Tolbert, 182 F.3d at 680 n.5.
“Whether
the district court was obliged to proceed to step three of the Batson process is a legal question we
review de novo.” United States v. Alanis, 335 F.3d 965,
967 n.1 (9th Cir. 2003).
Whether
a particular jury satisfies the “representative jury” standard under Batson is a question of law reviewed de
novo. See United States v. Bishop, 959 F.2d 820,
827 (9th Cir. 1992),
overruled on other grounds by United States v.
Nevils, 598 F.3d 1158 (9th Cir. 2010).
When
defense counsel fails to preserve a Batson
claim, review is limited to plain error.
See United States v.
Contreras-Contreras, 83 F.3d 1103, 1105 (9th Cir. 1996).
The
district court’s “remedy” for a Batson
violation is reviewed for an abuse of discretion. See United States v.
Ramirez-Martinez, 273 F.3d 903, 910 (9th Cir. 2001), overruled in part on other grounds, United States v. Lopez, 484 F.3d 1186,
1200 (9th Cir. 2007)
(en banc).
See also II. Criminal Proceedings, C.
Trial Decisions in Criminal Cases, 5. Batson
Claims.
The
district court’s decision to empanel an anonymous jury is reviewed for an abuse
of discretion. See United States v.
Shryock, 342 F.3d 948, 970 (9th Cir. 2003)
(deciding first impression question).
In
prosecutions under 18 U.S.C. § 1001 (false
statements),[114] 26 U.S.C. § 7206
(filing false tax returns),[115]
and 18 U.S.C. §1623
(perjury),[116] and
other statutes having the element of materiality, the question of materiality
is a mixed question of law and fact to be submitted to the jury. See United States v. Uchimura, 125 F.3d
1282, 1284 (9th Cir. 1997)
(discussing the leading Supreme Court case on the topic of materiality, United States v. Gaudin, stating that
“the Supreme Court’s reasoning applies with equal potency to every crime of
which materiality is an element”).[117]
If
materiality is not an element of the crime, however, it need not be submitted
to the jury. See Uchimura, 125 F.3d at 1284.[118] Whether
materiality is an element of a crime is a question of law reviewed de
novo. See United States v. Watkins, 278 F.3d 961,
964 (9th Cir. 2002).
A
district court’s error in not charging a jury on the element of materiality is
subject to harmless error review. See
Neder v. United States, 527 U.S. 1, 8-15
(1999)
(discussing framework to decide if harmless error review applies); United States v. Du Bo, 186 F.3d 1177,
1180 n.2 (9th Cir. 1999)
(limiting Neder to petite juries, and
not grand juries).
Plain error applies when defendant fails to object to
a materiality instruction. See United States v. Johnson, 297 F.3d 845,
866 (9th Cir. 2002).[119]
A
district court’s decision to order parties to deliver opening statements before
voir dire is reviewed for an abuse of discretion. See United States v. Goode, 814 F.2d 1353,
1354-55 (9th Cir. 1987). The court’s “broad discretion is to be
limited only when a party’s rights are somehow prejudiced.” Id. at 1354.
A
district court’s decision to admit[120]
or exclude[121]
evidence is reviewed for an abuse of discretion and will be reversed only if
manifestly erroneous. See United States v.
Gonzales, 307 F.3d 906, 909 (9th Cir. 2002); United States v. Finley, 301 F.3d 1000,
1008 (9th Cir. 2002);
see also United States v. Von Willie, 59 F.3d 922, 928 (9th Cir. 1995)
(noting court has characterized the standard of review in different ways). Pursuant to this standard, the district court’s
refusal to allow an expert to testify regarding a witness’s psychiatric
condition, see United States v.
Marsh, 26 F.3d 1496, 1502 (9th Cir. 1994),
and decisions regarding experts on eyewitness identification reliability, see United States v.
Hicks, 103 F.3d 837, 842 (9th Cir. 1996), overruled in part on other grounds by United States v. W. R. Grace, 526 F.3d
499, 502-03 (9th Cir. 2008); United States v. Rincon, 28 F.3d 921,
923 (9th Cir. 1994),
are both reviewed for an abuse of discretion.
When no
objection is made, review is limited to plain error analysis; reversal is
mandated only if the district court committed a clear or obvious error that
affected substantial rights or was prejudicial. See United States v.
Banks, 514 F.3d 959, 975-76 (9th Cir. 2008)
(holding that argument must be same as that presented to the court below); United States v. Sherwood, 98 F.3d 402,
408 (9th Cir. 1996);
see also United States v. Varela-Rivera, 279 F.3d
1174, 1177-78 (9th Cir. 2002)
(noting circumstances that preserve defendant’s right of review under abuse of
discretion standard rather than plain error).
The district court has wide discretion in determining
whether particular scientific tests are reliable enough to permit expert
testimony based upon their results, and will be upheld unless manifestly
erroneous. See United States v. W.R. Grace, 504 F.3d
745, 759 (9th Cir. 2007);
United States v. Finley, 301 F.3d 1000,
1007 (9th Cir. 2002); United States v.
Gillespie, 852 F.2d 475, 480 (9th Cir. 1988).
The determination
whether an expert witness has sufficient qualifications to testify is reviewed
for an abuse of discretion. See United States v.
Redlightning, 624 F.3d 1090, 1115 (9th Cir. 2010); United States v. Abonce-Barrera, 257
F.3d 959, 964 (9th Cir. 2001);
United States v. Benavidez-Benavidez,
217 F.3d 720, 723 (9th Cir. 2000);
United States v. Garcia, 7 F.3d 885, 889
(9th Cir. 1993).
The
district court’s denial of a request for public funds to hire an expert is
reviewed for an abuse of discretion. See United States v. Pete, 819 F.3d 1121,
1130 (9th Cir. 2016).[122]
A district court’s failure to rule on a motion for
appointment of an expert witness is deemed a denial of the motion that is
reviewed for an abuse of discretion. See United States v.
Depew, 210 F.3d 1061, 1065 (9th Cir. 2000).
This court reviews for abuse of discretion a district court’s
admission of lay opinion testimony. See United States v.
Beck, 418 F.3d 1008, 1013-15 & n.3 (9th Cir. 2005)
(holding that “a lay witness’s testimony is rationally based within the meaning
of Rule 701 where it is ‘based upon personal observation and recollection of
concrete facts.’”).[123]
A district court’s ruling on the admission of photographs
into evidence is reviewed for an abuse of discretion. See United States v.
Pineda-Doval, 614 F.3d 1019, 1034 (9th Cir. 2010); United States v.
Campbell, 42 F.3d 1199, 1204 (9th Cir. 1994); United States v. Chambers, 918 F.2d
1455, 1462 (9th Cir. 1990).
Permitting lay witness testimony regarding the identity of
an individual depicted in a photograph is also reviewed for an abuse of
discretion. See United States v.
Henderson, 241 F.3d 638, 650-51 (9th Cir. 2000).
A district court’s denial of a
defendant’s motion to waive his or her presence at trial is reviewed for abuse
of discretion. See United States v.
Lumitap, 111 F.3d 81, 83 (9th Cir. 1997). A
district court’s decision to conduct a criminal trial in the defendant’s
absence is reviewed for abuse of discretion.
See United States v.
Ornelas, 828 F.3d 1018, 1021 (9th Cir. 2016).
A district court’s factual finding that a defendant has
knowingly and voluntarily failed to appear for trial is reviewed for clear
error. See United States v. Houtchens, 926 F.2d 824, 826 (9th Cir. 1991).
A defendant’s absence from a “critical stage” of the trial
is subject to harmless error review. See United States v.
Berger, 473 F.3d 1080, 1094 (9th Cir. 2007)
(noting government’s burden to show harmlessness). Plain error applies when there is no
objection. See United States v.
Romero, 282 F.3d 683, 689 (9th Cir. 2002).
“We
review for abuse of discretion the district court’s decision to admit evidence
of prior bad acts.” United States v.
Mendoza-Prado, 314 F.3d 1099, 1103 (9th Cir. 2002). See
also United States v. Ubaldo, 859 F.3d 690, 704-05 (9th Cir. 2017), petition for cert. filed, No. 17-6884
(Nov. 22, 2017).
The
district court’s decision to admit evidence of prior crimes or bad acts
pursuant to Fed. R. Evid.
404(b) is reviewed for an abuse of discretion under a four-part test. See
United States v. Flores-Blanco, 623 F.3d
912, 919 (9th Cir. 2010);
see also See also United States v.
Ubaldo, 859 F.3d 690, 704-05 (9th Cir. 2017), petition for cert.
filed, No. 17-6884 (Nov. 22, 2017); United States v. Major, 676 F.3d 803,
807-09 (9th Cir. 2012).[124]
Whether
evidence falls within the scope of Rule 404(b) is a question of law reviewed de
novo. See United States v.
Smith, 282 F.3d 758, 768 (9th Cir. 2002). For example, de novo review applies to
whether such evidence is directly relevant to the crime charged or relevant
only to “other crimes.” See United States v.
Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999); United States v. Rrapi, 175 F.3d 742,
748 (9th Cir. 1999);
United States v. Jackson, 84 F.3d 1154,
1158-59 (9th Cir. 1996). De novo review also applies to whether
certain conduct constitutes “other crimes.” See United States v.
Serang, 156 F.3d 910, 915 (9th Cir. 1998); United States v. Andaverde, 64 F.3d 1305, 1314 (9th Cir. 1995); United States v. Kearns, 61 F.3d 1422, 1427 (9th Cir. 1995); United States v. Warren, 25 F.3d 890,
895 (9th Cir. 1994).
In
allowing Rule 404(b) evidence, a district court is not required to recite the
corresponding Rule 403 balancing analysis; it is enough if the reviewing court
can conclude, based on a review of the record, that the district court
considered Rule 403’s requirements. See United States v. Cherer, 513F.3d
1150, 1159 (9th Cir. 2008).
“Evidentiary
rulings admitting evidence of prior criminal activity under Rule 608 are
reviewed for an abuse of discretion.” United States v. Castillo, 181 F.3d
1129, 1132 (9th Cir. 1999).
Admission
of prior criminal activity pursuant to Fed. R. Evid. 609
(impeachment) is reviewed for an abuse of discretion under five-factor
test. See United States v. Martinez-Martinez, 369
F.3d 1076, 1088 (9th Cir. 2004). This court reviews the district court’s
interpretation of Rule 609 de novo. See
United States v. Foster, 227 F.3d 1096,
1099 (9th Cir. 2000).
De novo
review applies to whether the use of prior crimes for purposes of sentencing
enhancement, see United v. Gallaher, 275 F.3d 784, 790 (9th Cir. 2001),[125]
and to whether a defendant is a career offender, see United States v. Kovac, 367 F.3d 1116,
1118 (9th Cir. 2004).
De novo
review applies to the district court’s attorney-client privilege
determinations, see United States v.
Alexander, 287 F.3d 811, 816 (9th Cir. 2002),[126]
including rulings on the scope of the privilege, see United States v.
Mett, 178 F.3d 1058, 1061-62 (9th Cir. 1999),[127]
and whether the privilege exists, see In re Subpoena to
Testify Before Grand Jury, 39 F.3d 973, 976 (9th Cir. 1994).
An
abuse of discretion standard applies to findings regarding the applicability of
the marital privilege. See United States v.
Murphy, 65 F.3d 758, 761 (9th Cir. 1995).
De novo
review also exists for the scope of the doctor-patient privilege. See United States v.
Romo, 413 F.3d 1044, 1046 (9th Cir. 2005)
(psychotherapist-patient privilege); United States v. Chase, 340 F.3d 978,
981 (9th Cir. 2003)
(en banc) (patient-doctor privilege).
An
otherwise applicable privilege may be waived through voluntary disclosure;
whether such waiver occurred is a mixed question of fact and law. See Feldman v.
Allstate Ins. Co., 322 F.3d 660, 665, 667-68 (9th Cir. 2003)
(marital privilege); United States v. Amlani, 169 F.3d 1189,
1194 (9th Cir. 1999)
(attorney-client).[128]
Courts
have discretion to fashion appropriate remedies whenever prosecutors subvert
the attorney-client relationship. See United States v.
Chen, 99 F.3d 1495, 1504 (9th Cir. 1996).
The
attorney-client privilege does not extend to “‘communications which solicit or
offer advice for the commission of a crime or fraud.’” In re Grand Jury Subpoena 92 1(SJ), 31
F.3d 826, 829 (9th Cir. 1994). The standard of review of whether the
government has made a prima facie showing that this “crime fraud” exception applies
is unclear in this circuit – it is either de novo or an abuse of
discretion. See United States v.
Bauer, 132 F.3d 504, 509 n.3 (9th Cir. 1997); In re Grand Jury Proceedings, 87 F.3d
377, 380 (9th Cir. 1996).
De
novo review applies to the district court’s determinations regarding the scope
of the Fifth Amendment privilege, see United States v.
Rubio-Topete, 999 F.2d 1334, 1338 (9th Cir. 1993)
(witness), whether a defendant’s waiver of Fifth Amendment privilege was
compelled, see United States v.
Anderson, 79 F.3d 1522, 1525 (9th Cir. 1996),
whether suppression of a defendant’s testimony violates the constitutional
right to testify, see United States v.
Moreno, 102 F.3d 994, 998 (9th Cir. 1996),
and whether there has been a violation of a defendant’s Fifth Amendment right
via references to the defendant’s silence, see
United States v.
Bohn, 622 F.3d 1129, 1135 (9th Cir. 2010); United States
v. Lopez, 500 F.3d 840, 844 (9th Cir. 2007); United States v. Beckman, 298 F.3d 788, 795 (9th Cir. 2002).[129]
Prosecutors are forbidden from commenting on a defendant’s
decision not to testify. Griffin v. California, 380 U.S. 609, 615
(1985).[130]
When a defendant fails to object to the admission of
testimony or comments that may violate his Fifth Amendment privilege (or that
may violate
When the defendant does object, harmless error
applies. See United States v.
Velarde-Gomez, 269 F.3d 1023, 1034-35 (9th Cir. 2001)
(en banc) (Griffin case); cf. United States v. Tucker, 641 F.3d 1110,
1120 (9th Cir. 2011)
(explaining where an objection to prosecutorial misconduct is raised in the
trial court and overruled, review is for abuse of discretion).
The district court’s balancing under Rule 403 of the
probative value of evidence against its prejudicial effect is reviewed for an
abuse of discretion. See United States v.
Mitchell, 502 F.3d 931, 967-68 (9th Cir. 2007)
(affirming); United States v.
Gonzalez-Flores, 418 F.3d 1093, 1098 (9th Cir. 2005)
(reversing).[131] The district court need not, however, recite
the Rule 403 test when deciding whether to admit evidence. See United States v.
Hicks, 103 F.3d 837, 844 n.6 (9th Cir. 1996), overruled in part on other grounds by United States v. W. R. Grace, 526 F.3d
499, 502-03 (9th Cir. 2008). When the district court does not engage in
explicit balancing of the probative value of the evidence against its
prejudicial effect, its determination is reviewed de novo. See United States v.
Moran, 493 F.3d 1002, 1012 (9th Cir. 2007). A district court abuses its discretion by not
examining and evaluating all the evidence it must weigh. See United States v.
Curtin, 489 F.3d 935, 958 (9th Cir. 2007)
(en banc).
The district court’s rulings on alleged prosecutorial
misconduct are reviewed for an abuse of discretion, see United States v.
Reyes, 660 F.3d 454, 461 (9th Cir. 2011); United States v. Steele, 298 F.3d 906,
910 (9th Cir. 2002),[132]
including the denial of a motion for new trial based on prosecutorial
misconduct, see United States v.
Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002).[133] United States
v. Steele, 298 F.3d 906, 910 (9th Cir. 2002)). “‘Analysis of a claim of
prosecutorial misconduct focuses on its asserted impropriety and substantial
prejudicial effect.’ United States
v. Weatherspoon, 410 F.3d 1142, 1145 (9th Cir. 2005).” United States v. Barragan, 871 F.3d 689,
707 (9th Cir. 2017).
Harmless error applies when defendant objects to
prosecutorial misconduct, see United States v.
Del Toro-Barboza, 673 F.3d 1136, 1150 (9th Cir. 2012); United States v. Blueford, 312 F.3d 962,
973-74 (9th Cir. 2002),
and plain error review applies when defendant fails to object, see United States v.
Geston, 299 F.3d 1130, 1134 (9th Cir. 2002). See
also
United States v. Preston, 873 F.3d 829, 835 (9th Cir. 2017).
Trial courts have discretion to fashion an appropriate remedy
when a prosecutor subverts the attorney-client relationship. See United States v. Chen, 99 F.3d 1495, 1504 (9th Cir. 1996).
Whether a prosecutor’s comments constitute improper
“bolstering” is a mixed question of law and fact reviewed de novo. See United States v.
Santiago, 46 F.3d 885, 891 (9th Cir. 1995).
The Ninth Circuit has not been clear on the standard of
review when the defendant timely objects to improper vouching. The approach has been to determine de novo
whether the prosecutor’s conduct constituted improper vouching, and if so,
whether the vouching was harmless error.
See United States v.
Sarkisian, 197 F.3d 966, 989-90 (9th Cir. 1999).[134]
If there is no timely objection, vouching claims are
reviewed for plain error. See United States v.
Doss, 630 F.3d 1181, 1193 (9th Cir. 2011)
(as amended); United States v.
Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007).[135] A district court commits plain error by
allowing a prosecutor to persist in asking witnesses to comment upon the
veracity of other witnesses. See United States v.
Geston, 299 F.3d 1130, 1138 (9th Cir. 2002); cf. United States v.
Greer, 640 F.3d 1011, 1023-24 (9th Cir. 2011)
(distinguishing between asking whether another witness was “lying” or simply
“mistaken”).
The district court’s decision whether to dismiss an
indictment based on improper or outrageous government conduct is reviewed de
novo. See United States v.
Stinson, 647 F.3d 1196, 1209 (9th Cir. 2011); United States v.
Gurolla, 333 F.3d 944, 950 (9th Cir. 2003).[136] The evidence is viewed, however, in the light
most favorable to the government, and the district court’s findings are
accepted unless clearly erroneous. See United States v. Struckman, 611 F.3d 560, 573 (9th Cir. 2010); Gurolla, 333 F.3d at 950; United States v. Cuellar, 96 F.3d 1179,
1182 (9th Cir. 1996).
Allegations of prosecutorial misconduct before a grand jury
are reviewed de novo. See United States v.
Pang, 362 F.3d 1187, 1194 (9th Cir. 2004); United States v. Fuchs, 218 F.3d 957,
964 (9th Cir. 2000).[137]
A district court’s refusal to disqualify the prosecutor is
reviewed for an abuse of discretion. See United States v.
Davis, 932 F.2d 752, 763 (9th Cir. 1991); United States v. Plesinski, 912 F.2d
1033, 1035 (9th Cir. 1990).
Whether the prosecutor has improperly suppressed
exculpatory evidence is a question of law reviewed de novo. See United States v.
Hernandez, 109 F.3d 1450, 1454 (9th Cir. 1997); see
also United States v. Flyer, 633 F.3d 911,
915-16 (9th Cir. 2011);
United States v. Estrada, 453 F.3d 1208,
1212 (9th Cir. 2006). The district court’s underlying factual
findings are reviewed for clear error. See Hernandez, 109 F.3d at 1454. The court’s decision to exclude evidence as a
sanction for destroying or failing to preserve evidence is reviewed for an
abuse of discretion. See United States v.
Belden, 957 F.2d 671, 674 (9th Cir. 1992).
Where the claim is not presented to the district court, review
is for plain error. See United States
v Houston, 648 F.3d 806, 813 (9th Cir. 2011).
Abuse of discretion review applies to a district court’s
decision regarding admission of rebuttal evidence,[138] order of
proof,[139]
proper scope of rebuttal,[140]
and admission or exclusion of surrebuttal evidence.[141] See United States v. Beck, 418 F.3d 1008,
1016 n.6 (9th Cir. 2005)
(admission of rebuttal evidence); United States v. Goland, 959 F.2d 1449,
1454 (9th Cir. 1992)
(scope); United States v. Blackstone, 56 F.3d
1143, 1146 (9th Cir. 1995)
(surrebuttal).
A trial court’s decision to recess during trial is reviewed
for an abuse of discretion. See United States v.
Hay, 122 F.3d 1233, 1235 (9th Cir. 1997)
(holding that forty eight day recess between close of evidence and closing
arguments is an abuse of discretion).
A district court’s decision whether to
grant a motion for recusal, or to disqualify herself,[142] is
reviewed for an abuse of discretion. See United States v.
Holland, 519 F.3d 909, 912-13 (9th Cir. 2008)
(noting that courts generally do not review a judge’s decision to recuse
himself or herself).[143]
When recusal is not raised below, or
the defendant fails to object at trial, the allegation of judicial bias is
reviewed for plain error. See United States v.
Morgan, 376 F.3d 1002, 1007 (9th Cir. 2004).[144]
The district court’s decisions
regarding the relevancy of evidence are reviewed for abuse of discretion. See United States v.
Alvarez, 358 F.3d 1194, 1216 (9th Cir. 2004).[145] Note, however, that legal issues regarding
whether evidence is relevant to other acts or to the crime charged is reviewed
de novo. See United States v.
Castillo, 181 F.3d 1129, 1134 (9th Cir. 1999).[146]
Abuse of discretion standard applies
to the district court’s decision whether to reopen a case[147] or a
suppression hearing.[148] See United States v. Pino-Noriega, 189 F.3d
1089, 1094 (9th Cir. 1999).
The trial judge’s decision to admit
evidence pursuant to the rule of completeness is reviewed for an abuse of
discretion. See United States v. Collicott, 92 F.3d 973, 983 (9th Cir. 1996); United States v. Dorrell, 758 F.2d 427,
434 (9th Cir. 1985).
Discovery
sanctions are generally reviewed for an abuse of discretion, see United States v.
Fernandez, 231 F.3d 1240, 1245 (9th Cir. 2000),[149]
including the decision to exclude evidence as a sanction for destroying or
failing to preserve evidence, see United States v.
Rivera-Relle, 333 F.3d 914, 922 (9th Cir. 2003). See
also In re Grand Jury Subpoena, No. 16-03-217,
875 F.3d 1179, 1183 (9th Cir. 2017)
(district court’s impositions of contempt sanctions reviewed for abuse of
discretion).
The applicability of Federal Rules and
local rules,[150]
however, is reviewed de novo,[151]
but once sanctions are imposed, their propriety is reviewed for an abuse of
discretion. See United States v.
Finley, 301 F.3d 1000, 1007 (9th Cir. 2002).[152]
The district court’s findings of fact
in support of its imposition of sanctions are reviewed for clear error. See United States v.
Lopez, 4 F.3d 1455, 1458 (9th Cir. 1993).
To reverse a conviction for a
discovery violation, this court must determine not only that the district court
abused its discretion, but that the error resulted in prejudice to substantial rights. See United States v.
Mitchell, 502 F.3d 931, 964 (9th Cir. 2007).[153]
The trial court’s decision to impose
sanctions for a Jencks Act violation is reviewed for an abuse of
discretion. See United States v.
McKoy, 78 F.3d 446, 449 (9th Cir. 1996).
The district court’s decision to shackle a defendant, or to
impose other security measures,[154] is
reviewed for an abuse of discretion. See United States v.
Cazares, 788 F.3d 956, 963 (9th Cir. 2015); United States v. Collins, 109 F.3d 1413,
1417 (9th Cir. 1997).[155] The underlying factual findings are reviewed
for clear error. See Spain v. Rushen, 883 F.2d 712, 717 (9th Cir. 1989).
“While the decision whether to shackle is entrusted to the
court’s discretion, routine shackling isn’t permitted. Instead, courts must
make specific determinations of necessity in individual cases.” United States v. Sanchez-Gomez, 859 F.3d
649, 660 (9th Cir. 2017),
cert. granted in part, No. 17-312, 2017
WL 3731255 (U.S. Dec. 8, 2017)
(citations omitted).
The judge’s decision whether to conduct a side-bar
conference is reviewed for an abuse of discretion. See United States v.
Bennett, 363 F.3d 947, 952 (9th Cir. 2004).[156] See
also United States v.
Reyes, 764 F.3d 1184, 1190-91 (9th Cir. 2014)
(holding that meetings between counsel and the court at which the participants
discuss whether jurors should be excused for cause, exercise peremptory
challenges, or decide whether to proceed in the absence of prospective jurors
are all examples of “a conference or hearing on a question of law” from which
the defendant may be excluded at the district court’s discretion”).
The trial court’s decisions regarding witnesses are
generally reviewed for an abuse of discretion.
For example:
·
Issues regarding the court’s control over the questioning of witnesses
at trial. See United States v. Geston, 299 F.3d 1130,
1137 (9th Cir. 2002)
(limiting cross-examination).[157]
·
Decision to exclude witnesses from the courtroom. See United States v. Seschillie, 310 F.3d
1208, 1213 (9th Cir. 2002).
·
Imposition of a sanction for a violation of a witness sequestration
order. See United States v. English, 92 F.3d 909,
913 (9th Cir. 1996). Note that if there is no contemporaneous
objection, however, plain error review applies. See United States v.
Hobbs, 31 F.3d 918, 921 (9th Cir. 1994).
·
Whether a witness is “unavailable” to testify. See United States v. McGuire, 307 F.3d 1192,
1205 (9th Cir. 2002).
·
Refusal to allow witness testimony on remand. See United
States v. Ross, 372 F.3d1097, 1112 (9th Cir. 2004).
·
Grant of an exception to the witness disclosure requirements of Fed. R. Crim. P. 12.1(e). See United States v.
Wills, 88 F.3d 704, 708 (9th Cir. 1996).
·
Refusal to grant a writ of habeas corpus ad testificandum to allow an
individual to testify. See United States v. Smith, 924 F.2d 889, 896
(9th Cir. 1991).
Denial of a motion to produce witness statements. See United States v. Nash, 115 F.3d 1431,
1440 (9th Cir. 1997).
A defendant’s failure to object limits review to plain error. See United States v.
Shwayder, 312 F.3d 1109, 1120 (9th Cir. 2002)
(prosecutor’s use of guilt-assuming hypotheticals during cross-examination), amended
by 320 F.3d 889 (9th
Cir. 2003). Note that a trial judge has broad discretion
in supervising the trial and may participate in the examination of witnesses to
clarify issues and call the jury’s attention to important evidence. See United States v.
Nash, 115 F.3d 1431, 1440 (9th Cir. 1997); United States
v. Wilson, 16 F.3d 1027, 1031 (9th Cir. 1994); see also United States v.
Moorehead, 57 F.3d 875, 878 (9th Cir. 1995)
(“[Defendant] does not dispute the broad authority of the district court to
examine witnesses.”).
Other witness determinations are reviewed de novo, such as
the denial of a motion to dismiss an indictment for the government’s failure to
retain witnesses. See United States v.
Gastelum-Almeida, 298 F.3d 1167, 1174 (9th Cir. 2002). Note that the district court’s underlying factual
determinations are reviewed for clear error.
See id. The
district court’s interpretation of the witness tampering provisions of 18 U.S.C. §
1512(b)
is also reviewed de novo. See United States v. Khatami, 280 F.3d 907,
910 (9th Cir. 2002).
The decision to grant immunity to prospective defense
witnesses is left to the discretion of the executive branch. See United States v.
Mendia, 731 F.2d 1412, 1414 (9th Cir. 1984).
Informal immunity agreements are reviewed under ordinary
contract law principles: factual determinations are reviewed for clear error;
whether the government has breached the agreement is a question of law reviewed
de novo. See United States v.
Dudden, 65 F.3d 1461, 1467 (9th Cir. 1995).
Whether the government has violated its obligation to
disclose immunity agreements with a prosecution witness is a question of law
reviewed de novo. See United States v.
Cooper, 173 F.3d 1192, 1203 (9th Cir. 1999).
Whether a district court erred by refusing to compel the
government to grant immunity to a defense witness is a mixed question of law
and fact reviewed de novo. See United
States v. Alvarez, 358 F.3d 1194, 1216 (9th
Cir. 2004). Underlying
factual findings are reviewed for clear error.
See id.
The court’s failure to allow a defendant his or her right
of allocution is reviewed to determine if the error is harmless. See United States v.
Marks, 530 F.3d 799, 813 (9th Cir. 2008); United States v. Mack, 200 F.3d 653, 657
(9th Cir. 2000).[158] The denial of allocution is not harmless when
the district court has the discretion to sentence the defendant to a shorter
sentence than given. See Mack, 200 F.3d at 657.[159]
De novo review applies to whether a defendant has waived
the statutory right to appeal by entering into a plea agreement, see United States v.
Lightfoot, 626 F.3d 1092, 1094 (9th Cir. 2010),[160]
and to whether the waiver is valid, see
United States v. Littlejohn, 224 F.3d
960, 964 (9th Cir. 2000).[161]
A district court’s determination whether a defendant has
shown excusable neglect in failing to file a timely notice of appeal is
reviewed for an abuse of discretion. See United States v.
Green, 89 F.3d 657, 660 (9th Cir. 1996); United States v. Smith, 60 F.3d 595,
596-97 (9th Cir. 1995).
A district court’s order granting a
party an extension of time to file a notice of appeal is reviewed for an abuse
of discretion. See Mendez v. Knowles, 556 F.3d 757, 764 (9th Cir. 2009); United States v.
Garcia, 997 F.2d 1273, 1276 n.1 (9th Cir. 1993).
De novo review applies to a claim that
a defendant’s sentence violates Apprendi v. New Jersey, 530 U.S. 466
(2000),
see United States v. Martinez-Rodriguez, 472
F.3d 1087, 1092 (9th Cir. 2007),[162]
whether the district court correctly applied Apprendi at sentencing, United States v. Banuelos, 322 F.3d 700,
704 (9th Cir. 2003),[163]
and the district court’s interpretation of the constitutional rule in Apprendi. See United States v.
Maria-Gonzalez, 268 F.3d 664, 667 (9th Cir. 2001).
Apprendi
violations are subject to harmless error review. See United States v.
Hunt, 656 F.3d 906, 913-14 (9th Cir. 2011); United States v. Valle-Montalbo, 474
F.3d 1197, 1201-02 (9th Cir. 2006).
A defendant’s failure, however, to
raise an Apprendi claim before the
district court limits appellate review to plain error. See United States v.
Covian-Sandoval, 462 F.3d 1090, 1093 (9th Cir. 2006).[164]
Note that Apprendi is not structural, nor is it to be applied
retroactively. See United States v.
Sanchez-Cervantes, 282 F.3d 664, 670-71 (9th Cir. 2002).
The
district court’s denial of a motion for arrest of judgment is reviewed for an
abuse of discretion. See United States v.
Rodriguez, 360 F.3d 949, 955 (9th Cir. 2004); United States v. Baker, 63 F.3d 1478,
1499 (9th Cir. 1995).
The award[165] or
denial[166] of
attorneys’ fees pursuant to 18 U.S.C. § 3006A (Hyde Amendment) are
reviewed for an abuse of discretion. See
United States v. Danielson, 325 F.3d
1054, 1076 (9th Cir. 2003).
Post-trial release is governed by the
standards set forth in 18 U.S.C. §
3143, Fed. R. Crim. P. 46,
and Fed. R. App. P. 9. This circuit has not established a standard
of review of a district court’s denial of release. However, the court has laid out the
requirements for bail pending appeal. See
United States v. Handy, 761 F.2d 1279,
1283-84 (9th Cir. 1985);
United States v. Montoya, 908 F.2d 450,
450 (9th Cir. 1990). Findings by the trial court whether a
defendant is likely to flee or pose a danger to the safety of the community are
likely reviewed for clear error. See Handy, 761 F.2d at 1283; United States v. Reynolds, 956 F.2d 192,
192 (9th Cir. 1992) (order). Other circuits are split.[167]
When a district court refuses release
pending appeal or imposes conditions of release, the court must state in
writing the reasons for the action taken.
Fed. R. App. P.
9(a)(1). The district court
satisfies this requirement by issuing written findings or by stating the
reasons for the decision orally and providing a transcript. See United States v.
Cordero, 992 F.2d 985, 986 n.1 (9th Cir. 1993)
(order). Absent written findings or a
transcript of the bail hearing, remand is required. See id.
The district court’s denial of a
motion for relief from bond forfeiture is reviewed for an abuse of
discretion. See United States v.
Nguyen, 279 F.3d 1112, 1115 (9th Cir. 2002); United States v. Amwest Sur. Ins. Co.,
54 F.3d 601, 602 (9th Cir. 1995).
Fed. R. Crim. P. 35(c)
permits corrections of sentences that are clearly erroneous under the
Sentencing Guidelines. See United States v.
Aguirre,
214F.3d 1122, 1126 (9th Cir. 2000).
De novo review applies to issues of
law raised in a Rule 35(c)
motion,[168]
and whether a court has jurisdiction under Rule 35(c) to resentence.[169] See United States
v. Aguilar-Reyes, 653 F.3d 1053, 1055 (9th Cir. 2011); United States v. Penna, 319 F.3d 509, 511 (9th
Cir. 2003). Note that a district court’s decision under
Rule 35 involving pre-November 1, 1987 conduct is “reviewed for illegality or
gross abuse of discretion.” United States v. Hovsepian, 359 F.3d
1144, 1153 (9th Cir. 2004)
(en banc); United States v. Hayes, 231 F.3d 1132,
1135 (9th Cir. 2000).
Abuse of discretion review applies to
a trial court’s decision whether to reduce a Guideline sentence pursuant to 18 U.S.C. §
3582(c)(2)
(change in Guideline range), and the denial a motion to amend a guideline
sentence.
See United States v.
Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009); United States v. Hurt, 345 F.3d 1033,
1035 (9th Cir. 2003).[170]
Terms and conditions of a disciplinary
order are reviewed for abuse of discretion.
See United States v.
Engstrom, 16 F.3d 1006, 1011 (9th Cir. 1994).
This court reviews de novo whether a
district court has the authority to order expungement of a record of
conviction. See United States v.
Crowell, 374 F.3d 790, 792 (9th Cir. 2004); United States v. Sumner, 226 F.3d 1005,
1009 (9th Cir. 2000).
The district court’s determination
that a defendant has the ability to pay a fine is a finding of fact reviewed
for clear error. See United States v.
Rearden, 349 F.3d 608, 617 (9th Cir. 2003).[171]
De novo review applies to the legality,
see United States v.
Turner, 312 F.3d 1137, 1142 (9th Cir. 2002),
and constitutionality of a fine, see United States v.
Bajakajian, 524 U.S. 321, 336 & n.10 (1998). The court also reviews de novo whether a
district court has the authority to modify a fine. See United States v. Miller, 205 F.3d 1098,
1100 (9th Cir. 2000).
De
novo review applies to the following:
·
District court’s interpretation of the federal forfeiture laws. See United States v. $493,850.00 in U.S. Currency, 518 F.3d 1159, 1164 (9th
Cir. 2008).[172]
·
Whether there is standing to contest a forfeiture action. See United States v. Real Property Located at 475 Martin Lane, 545 F.3d 1134, 1140 (9th Cir. 2008).
·
Whether a delay in the initiation of civil forfeiture proceedings is
unconstitutional. See United States
v. Approximately $1.67 Million in U.S. Currency,
Stock, & Other Valuable Assets, 513 F.3d 991, 1001 (9th
Cir. 2008); United
States v. $292,888.04 in
U.S. Currency, 54 F.3d 564, 566 (9th Cir.
1995) (no probable cause).
·
Determinations of probable cause in civil forfeiture proceedings. See United States v. $186,416.00 in U.S. Currency, 590 F.3d 942, 949 (9th
Cir. 2010) (as amended); $493,850.00, 518 F.3d at 1164.[173]
·
Whether a civil forfeiture is “grossly disproportional” to the gravity
of the defendant’s crime. See United States v. $100,348 in U.S. Currency, 354 F.3d 1110, 1121 (9th Cir. 2004).
“However, [the appellate court] must accept the
district court’s findings of fact in conducting the excessiveness inquiry
unless they are clearly erroneous.” $100,348in U.S. Currency, 354 F.3d at 1121.
The district court’s denial of a
motion for mistrial is reviewed for an abuse of discretion. See United States v.
Ubaldo, 859 F.3d 690, 700 (9th
Cir. 2017), petition
for cert. filed, No. 17-6884 (Nov. 22, 2017); United States v.
Chapman, 524 F.3d 1073, 1081-82
(9th Cir. 2008)
(manifest discretion, noting a varying deference depending upon the
circumstances).[174] Note, however, that the district court’s
denial of a mistrial based on Brady violations
is reviewed do novo. See United States v. Antonakeas, 255 F.3d
714, 725 (9th Cir. 2001);
United States v. Howell, 231 F.3d 615,
624 (9th Cir. 2000). A district court’s failure to declare
mistrial sua sponte after the defendant withdraws a motion for a mistrial is
reviewed for plain error. See United States v.
Banks, 514 F.3d 959, 973-74 (9th Cir. 2008).
The denial of a defendant’s motion for
a new trial is reviewed for an abuse of discretion. See United States v.
King, 660 F.3d 1071, 1076 (9th
Cir. 2011); United States v. Moses,
496 F.3d 984, 992-93 (9th Cir. 2007).[175] This includes the
following:
·
Motions based on newly discovered evidence. See United States v. Hinkson, 585 F.3d 1247,
1259 (9th Cir. 2009)
(en banc) (Rule 33 motion); United States v. Brugnara, 856 F.3d
1198, 1206
(9th Cir.), cert. denied, 138 S. Ct. 409
(2017).[176]
·
Motions based on alleged prosecutorial misconduct. See United States v.
Washington, 462 F.3d 1124, 1135 (9th Cir. 2006)
(finding error harmless).[177]
·
Motions based on alleged juror misconduct. See United States v.
Murphy, 483 F.3d 639, 642 (9th
Cir. 2007); United States v. Bussell, 414 F.3d 1048,
1054 (9th Cir. 2005).[178]
·
District court’s decision not to hold an evidentiary hearing. See Bussell, 414 F.3d at 1054; see also United States v.
Del Muro, 87 F.3d 1078, 1080 n.3 (9th Cir. 1996).
The decision to grant a new trial
based on a claim that jurors were improperly exposed to extrinsic evidence is
subject, however, to “independent” review.
See United States v.
Prime, 431 F.3d 1147, 1157 (9th Cir. 2005); United States v. Keating, 147 F.3d 895,
899 (9th Cir. 1998). Note that the presence of a biased juror
cannot be harmless and requires a new trial without a showing of
prejudice. See United States v.
Long, 301 F.3d 1095, 1101 (9th Cir. 2002).
This court has also stated that de
novo review applies to the denial of motions for a new trial based on a Brady violation, see United States
v. Liew, 856 F.3d 585, 595-96 (9th Cir. 2017); United States v.
Pelisamen, 641 F.3d 399, 408 (9th
Cir. 2011);
United States v. Antonakeas, 255 F.3d 714, 725 (9th Cir. 2001); United States v. Howell, 231 F.3d 615,
624 (9th Cir. 2000),
or one based on a theory of entrapment, see United States v. Thickstun, 110 F.3d 1394, 1398 (9th Cir. 1997).
The legality of a sentence and its
impact on parole are issues reviewed de novo.
See United States
v. Carpenter, 91 F.3d 1282, 1283 (9th Cir. 1996) (per curiam), implied
overruling on other grounds recognized by United States v.
Broussard, 611 F.3d 1069 (9th Cir. 2010); United States v. Manning, 56 F.3d 1188, 1200 (9th Cir. 1995).
Whether a parole or probation officer
is acting as a “stalking horse” is a question of fact reviewed for clear
error. See United States v.
Vought, 69 F.3d 1498, 1501 (9th Cir. 1995).
This court reviews the Parole
Commission’s interpretations of law de novo and its factual findings for clear
error. See Kleeman v. United
States Parole Comm’n, 125 F.3d 725, 730 (9th Cir. 1997). The Commissioner’s discretionary decisions to
grant or deny parole are not reviewable by this court except for the claim that
“the Commission acted beyond the scope of discretion granted by Congress.” DeLancy v. Crabtree, 131 F.3d 780, 787
(9th Cir. 1997)
(internal quotation omitted).[179]
A district court may lack discretion
to impose probation as a sentence. See United States v.
Green, 105 F.3d 1321, 1323 (9th Cir. 1997); United States v. Roth, 32 F.3d 437, 440
(9th Cir. 1994). If probation is available, the “task of line
drawing in probation matters is best left to the discretion of the sentencing
judge.” United States v. Juvenile #1, 38 F.3d
470, 473 (9th Cir. 1994)
(internal quotation omitted).
Abuse of discretion review applies to the following:
·
Decision to revoke probation or supervised release. See United States v.
Harvey, 659 F.3d 1272, 1274 (9th
Cir. 2011); United States
v. Perez, 526 F.3d 543, 547 (9th Cir. 2008); United States
v. Shampang, 987 F.2d 1439, 1441 (9th Cir. 1993).[180]
·
The choice of conditions of probation. See United States v. Sims,
849 F.3d 1259, 1262 (9th Cir. 2017) (the appellate
court owes substantial deference to the district court’s judgment about which
conditions are needed to ensure successful supervision of the defendant); United States v. Juvenile #1, 38 F.3d 470, 473 (9th Cir. 1994). [181]
·
The decision not to conduct an in camera inspection of probation files
pursuant to defendant’s discovery request.
See United States v.
Alvarez, 358 F.3d 1194, 1208 (9th Cir. 2004).
De novo review applies to the following:
·
Challenges to the district court’s authority to impose specific
probation conditions. See United States v. Johnson, 697 F.3d 1249,
1251 (9th Cir. 2012)
(“We review the district court’s decision to impose
a condition of supervised release for an abuse of discretion.”); United States v. Parrott, 992 F.2d 914,
920 (9th Cir. 1993).
·
Whether a district court can properly delegate authority to a
magistrate judge to conduct a probation revocation hearing. See United States v. Colacurcio, 84 F.3d
326, 328 (9th Cir. 1996).
·
Whether a probation officer exceeds her statutory authority by
submitting a petition on supervised release to the district court. See United States v. Mejia-Sanchez, 172 F.3d
1172, 1174 (9th Cir. 1999).
·
Whether a district court may reinstate an original term of supervised
release. See United States v. Trenter, 201 F.3d 1262,
1263 (9th Cir. 2000).
·
The district court’s interpretation and application of the supervised
release statute. See United States v.
Harvey, 659 F.3d 1272, 1274 (9th
Cir. 2011); United States v. Turner, 312 F.3d 1137,
1142 (9th Cir. 2002);
United States v. Cade, 236 F.3d 463, 465
(9th Cir. 2000).
De novo review applies to whether a court has jurisdiction
to resentence a defendant,[182] whether
double jeopardy bars resentencing,[183] and
whether resentencing violates a defendant’s due process rights.[184] See United States
v. Aguilar-Reyes, 653 F.3d 1053, 1055 (9th Cir. 2011) (jurisdiction); United States v. Dowd, 417 F.3d 1080,
1086 (9th Cir. 2005)
(due process rights); United States v. Radmall, 340 F.3d 798,
800 n.4 (9th Cir. 2003)
(double jeopardy). Note that generally a
district court’s discretion on remand to resentence a defendant is not limited
to the prior record. See United States v. Matthews, 278 F.3d 880,
885 (9th Cir. 2002)
(en banc); United States v. Luong, 627 F.3d 1306,
1309 (9th Cir. 2010).[185]
A restitution order is reviewed for an abuse of discretion,
provided that it is within the bounds of the statutory framework. See United States v. Galan, 804 F.3d 1287,
1289 (9th Cir. 2015)
(“We review de novo the legality of a restitution order and, if the order is
within the statutory bounds, we review the amount of restitution for abuse of
discretion. We review for clear error factual findings supporting an order of
restitution.”); United States
v. Brock-Davis, 504 F.3d 991, 996
(9th Cir. 2007).[186] When the restitution order is not challenged
before the district court, review is limited to plain error. See United States v. Bright, 353 F.3d 1114,
1120 (9th Cir. 2004).[187]
A court has broad discretion in ordering restitution,[188]
and the amount of restitution ordered is reviewed for an abuse of
discretion. See United States v. Phillips, 367 F.3d 846,
854 (9th Cir. 2004).[189] The court’s “valuation methodology” is
reviewed, however, de novo. See United States v.
Berger, 473 F.3d 1080, 104 (9th
Cir. 2007).
Factual findings supporting a restitution order are
reviewed for clear error. See Galan, 804 F.3d at 1289; United States v.
Brock-Davis, 504 F.3d 991, 996 (9th
Cir. 2007).[190]
The legality of a restitution order, however, is reviewed
de novo. See Galan, 804 F.3d at 1289; Brock-Davis, 504 F.3d at 996; United States v. Cienfuegos, 462 F.3d
1160, 1162 (9th Cir. 2006).[191]
The sentencing court’s compliance with Fed. R. Crim. P. 32 is
reviewed de novo. See United States v.
Burkholder, 590 F.3d 1071, 1076 (9th Cir. 2010); United States
v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008).[192]
The court’s decision whether to hold an evidentiary hearing
on a Rule 32 motion is
reviewed for an abuse of discretion. See United States v. Pearson, 274 F.3d 1225,
1234 (9th Cir. 2001).[193] If the defendant failed to request a Rule 32 evidentiary hearing
in district court, this court reviews for plain error. See United States v. Berry, 258 F.3d 971,
976 (9th Cir. 2001).
The Sentencing Guidelines apply to defendants who
committed offenses on or after
Prior to the Guidelines, a district court had
“virtually unfettered discretion in imposing sentence.” United States
v. Baker, 10 F.3d 1374, 1420 (9th Cir. 1993) (internal quotation
omitted), overruled on other grounds by United States v.
Nordby, 225 F.3d 1053 (9th Cir. 2000). The legality of a pre-Guidelines sentence is
reviewed de novo. See United States v.
Pomazi, 851 F.2d 244, 247 (9th Cir. 1988), overruled
on other grounds by Hughey v. United
States, 495 U.S. 411 (1990). Pre-Guidelines sentences that fall within
statutory limits are left to the sound discretion of the district court and are
reviewed only for abuse of discretion. See
Pomazi, 851 F.2d at 247. If the sentence raises constitutional issues,
however, review is more searching. See
id.; see
also United States v.
Tucker, 404 U.S. 443, 447 (1972)
(sentence within statutory limits generally not reviewable absent
constitutional concerns). The district
court’s decision to impose pre-Guidelines and Guidelines sentences
consecutively is reviewed for an abuse of discretion. See United States v.
Scarano, 76 F.3d 1471, 1474 (9th Cir. 1996).
“[A]s a general rule, a district court’s application
of the Sentencing Guidelines to the facts of a given case should be reviewed
for abuse of discretion.” United States v. Gasca-Ruiz, 852 F.3d
1167, 1170 (9th Cir. 2017)
(en banc), cert. denied, 138 S. Ct. 229
(2017). See
also Gall v. United States, 552 U.S. 38, 49
(2007);
United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008)
(en banc)[194]. To the extent prior cases held otherwise, Gasca-Ruiz overruled them.[195]
852 F.3d at 1170.
To clarify the standard, the court in Gasca-Ruiz, explained:
Guideline-application decisions, in the sense
we refer to them here, arise only after the district court has identified the
correct legal standard and properly found the relevant historical facts. At
that point, there is often room for judgment in deciding whether the specific
constellation of facts at issue meets the governing legal standard. As is true
in other contexts, the more general the standard set by the Guidelines, “the
more leeway courts have in reaching outcomes in case-by-case determinations.” … . Under
the standard of review we adopt today, this last component of the district court’s
decision—deciding whether a specific set of facts satisfies the correctly
identified legal standard—will generally be subject to review for abuse of
discretion.
Id. at 1171.
Note, while “Guideline-application decisions should
almost always be reviewed deferentially for abuse of discretion, [] there is at
least one situation in which de novo review is appropriate: determining
whether a defendant’s prior conviction is for a ‘crime of violence,’ as
required under some provisions of the Guidelines.” Id. at 1174.
Sentences are reviewed for reasonableness, and only
a procedurally erroneous or substantively unreasonable sentence is set
aside. See Gall, 552 U.S. at 46; Rita v. United States, 551 U.S. 338, 351 (2007); Carty, 520 F.3d at 993; United States v. Cruz-Mendez, 811 F.3d
1172, 1175
(9th Cir.), cert. denied, 137 S. Ct. 175
(2016). Procedural error includes failing to
calculate (or calculating incorrectly) the proper Guidelines range, treating
the Guidelines as mandatory, failing to consider the factors from 18 U.S.C. §
3553(a),
choosing a sentence based on clearly erroneous facts, or failing to explain a
selected sentence, including any deviation from the Guidelines range. See Carty, 520 F.3d at 993. In considering the substantive reasonableness
of a sentence, the totality of the circumstances is considered. See id. A court of appeals may not presume a
non-Guidelines sentence unreasonable. See id. Once a sentence is selected, the
district court must sufficiently explain the sentence to permit meaningful
appellate review. See id. at 992.
The constitutionality of the Sentencing Guidelines
is a question of law reviewed de novo. [196]
See United States v.
Padilla-Diaz, 862 F.3d 856, 860 (9th Cir. 2017). The constitutionality of a sentence imposed
under the Guidelines is reviewed de novo.[197]
See United States v.
Guillen-Cervantes, 748 F.3d 870, 872 (9th Cir. 2014). A claim that a defendant’s sentence violates Apprendi v. New
Jersey, 530 U.S. 466 (2000),
is also reviewed de novo. See United States v.
Dare, 425 F.3d 634, 638 (9th Cir. 2005); United States
v. Smith, 282 F.3d 758, 771 (9th Cir. 2002); but see United States v.
Sanchez-Cervantes, 282 F.3d 664, 671 (9th Cir. 2002)
(holding that “Apprendi does not apply retroactively to cases on initial
collateral review”).
A trial court’s refusal to grant a continuance of a
sentencing hearing is reviewed for an abuse of discretion. See Williams v.
Stewart, 441 F.3d 1030, 1056 (9th Cir. 2006)
(as amended); United States
v. Lopez-Patino, 391 F.3d 1034, 1036 (9th Cir. 2004); United States
v. Lewis, 991 F.2d 524, 528 (9th Cir. 1993); United States
v. Monaco, 852 F.2d 1143, 1150 (9th Cir. 1988).
Rule 35(a) permits corrections of sentences which
are clearly erroneous under the Guidelines.
See United States v.
Aguirre, 214 F.3d 1122, 1126 (9th Cir. 2000)
(discussing former Rule 35(c), now located in Rule 35(a)). Issues of law raised in a Rule 35(a) motion
are reviewed de novo. See United States v.
Zakhor, 58 F.3d 464, 465 (9th Cir. 1995)
(challenge to application and constitutionality of Sentencing Reform Act in
former Rule 35(c) motion). Whether a
court has jurisdiction under Rule 35(a) to resentence presents a question of
law reviewed de novo. See United States v.
Aguilar-Reyes, 653 F.3d 1053, 1055 (9th Cir. 2011).[198]
Note that Fed. R. Crim. P. 35 was
modified to conform with the Sentencing Guidelines.[199] Review of a trial court’s decision under the
former rule may arise, however, if the criminal conduct occurred prior to
A trial court’s decision whether to reduce a Guideline sentence pursuant to 18 U.S.C. § 3582(c)(2) (change in Guideline range) is reviewed for an abuse of discretion. See United States v. Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009); United States v. Sprague, 135 F.3d 1301, 1304 (9th Cir. 1998); United States v. Townsend, 98 F.3d 510, 512 (9th Cir. 1996). The court’s denial of a motion to amend a Guideline sentence is also reviewed for an abuse of discretion. See Chaney, 581 F.3d at 1125; United States v. Hurt, 345 F.3d 1033, 1035 (9th Cir. 2003).
A district court’s
sentencing decisions are reviewed for abuse of discretion. See
Gall v. United States, 552 U.S. 38, 49
(2007);
United States v. Carty, 520 F.3d 984,
993 (9th Cir. 2008)
(en banc). The sentences are reviewed
for reasonableness, and only a procedurally erroneous or substantively
unreasonable sentence is set aside. Gall, 552 U.S. at 46; Rita v. United
States, 551 U.S. 338, 351 (2007); Carty, 520 F.3d at 993. Procedural error includes failing to
calculate (or calculating incorrectly) the proper Guidelines range, treating
the Guidelines as mandatory, failing to consider the factors from 18 U.S.C. §
3553(a),
choosing a sentence based on clearly erroneous facts, or failing to explain a
selected sentence, including any deviation from the Guidelines range. See Carty, 520 F.3d at 993. In considering the substantive reasonableness
of a sentence, the totality of the circumstances is considered. See id. A court of appeals may not presume a
non-Guidelines sentence unreasonable. See id. Once a sentence is selected, the district
court must sufficiently explain the sentence to permit meaningful appellate
review. See id. at 992.
If a district court finds a non-Guidelines sentence
appropriate, it must consider the extent of the deviation “and ensure that the
justification is sufficiently compelling to support the degree of the
variance.” Id. at 991 (quoting Gall, 552 U.S. at 50). The degree of variance is just one
consideration. Once a sentence is
selected, the district court must sufficiently explain the sentence to permit
meaningful appellate review. Id. at 992. For any departure from the Guidelines, due
deference is given “to the district court’s decision that the § 3553(a)
factors, on a whole, justify the extent of the variance.” Id.
at 993 (quoting Gall, 552 U.S. at 51);
see also United States v. Shi, 525 F.3d 709,
732-33 (9th Cir. 2008).
Prior to United States
v. Booker, 543 U.S. 220 (2005),
district court decisions to depart from the Guidelines were reviewed de novo in
accordance with 18 U.S.C. §
3742(e).[200] Booker excised this and other
provisions as unconstitutional and stated that the modified statute sets forth
an implicit reasonableness standard for appellate review. Booker, 543
U.S. at 260-65. Booker
applies to all cases pending on direct review at the time it was decided. Id. at 268. Also, prior to Booker, the extent of a
district court’s downward departure was reviewed for abuse of discretion.[201]
Booker requires
the review of a sentence for reasonableness pursuant to the factors in18 U.S.C. §
3553(a),
and this includes the review of a denied downward departure. See
United States v. Dallman, 533 F.3d 755,
760 (9th Cir. 2008).
Pre-Booker, the adequacy of the district
court’s notice to defendant of its intent to depart upward pursuant Fed. R. Crim. P. 32(h) was
reviewed de novo. United States v. Evans-Martinez, 530
F.3d 1164, 1167 (9th Cir. 2008);
United States v. Garcia, 323 F.3d 1161,
1165 (9th Cir. 2003)
(articulating pre-Booker standard). Where
the defendant fails to object to lack of notice, however, review for plain
error applies, both
pre- and post-Booker. See Evans-Martinez, 530 F.3d at 1167. The requirement, imposed by Rule 32(h), that
a district court provide notice of its intent to depart from the Guidelines,
survives Booker. See id. at 1168. However, the Supreme Court has clarified that
Rule 32(h) no longer applies to a variance – as opposed to a departure – from a
recommended Guidelines range. See Irizarry v. United
States, 553 U.S. 708, 715 (2008). Pre-Booker,
the district court’s consideration of Chapter 7’s non-binding policy statements
was reviewed for an abuse of discretion.
See Garcia, 323 F.3d at 1164.
Before United States v. Booker, 543 U.S. 220
(2005),
a claim of disparate sentencing was reviewed under the abuse of discretion
standard. See United States v. Bischel, 61 F.3d 1429,
1437 (9th Cir. 1996)
(“Generally, the imposition of disparate sentences alone is not an abuse of
discretion, and a judge isn’t required to give reasons for a disparate sentence
in the absence of any evidence that a defendant is being punished for
exercising his right to stand trial.”).
This standard has not been rearticulated since Booker.
Both
before and after Booker, the Ninth Circuit
“has applied the rational basis standard of review to equal protection
challenges to the Sentencing Guidelines based on a comparison of allegedly
disparate sentences.” United States v. Ellsworth, 456 F.3d
1146, 1149 (9th Cir. 2006);
see also United States v.
Johnson, 626 F.3d 1085, 1088 (9th Cir. 2010).
Before United States v.
Booker, 543 U.S. 220 (2005),
the district court’s factual findings in the sentencing phase were reviewed for
clear error.[202] Post-Booker
a district
court’s sentencing decisions are reviewed for abuse of discretion. See
Gall v. United States, 552 U.S. 38, 49
(2007);
United States v. Carty, 520 F.3d 984,
993 (9thCir. 2008)
(en banc). The sentences are reviewed
for reasonableness, and only a procedurally erroneous or substantively
unreasonable sentence is set aside. See Gall, 552 U.S. at 46; Rita v. United
States, 551 U.S. 338, 351 (2007); Carty, 520 F.3d at 993. Procedural
error includes, among other things, choosing a sentence based on clearly
erroneous facts. See Carty, 520 F.3d at 993; see also United States v. Stoterau, 524 F.3d 988,
997 (9th Cir. 2008)
(reviewing factual findings for clear error).
The
Ninth Circuit has clarified the plain error standard to be applied when a Booker Sixth Amendment sentencing claim
was not raised in pre-Booker
proceedings at the district court. See United States v. Ross, 511 F.3d 1233,
1235 (9th Cir. 2008);
United States v. Ameline, 409 F.3d 1073,
1078-85 (9th Cir. 2005)
(en banc). When faced with an
unpreserved Booker error, the court applies
the “limited remand” procedure described in Ameline. See Ameline, 409 F.3d at 1078-85.
The
legality of a fine imposed is a question of law reviewed de novo. See United States v. Turner, 312 F.3d 1137,
1142 (9th Cir. 2002);
United States v. Portin, 20 F.3d 1028,
1029-30 (9th Cir. 1994). Whether a fine is constitutionally excessive
is reviewed de novo. See United States v. Bajakajian, 524 U.S.
321, 336 & n.10 (1998).
Whether a district court has the
authority to modify a fine is a question of law reviewed de novo. See United States v. Miller, 205 F.3d 1098,
1100 (9th Cir. 2000). The district court’s determination that a
defendant has the ability to pay a fine is a finding of fact reviewed for clear
error. See United States v.
Rearden, 349 F.3d 608, 617 (9th Cir. 2003).[203]
Before United States v. Booker, 543 U.S. 220
(2005),
the district court’s interpretation of the Sentencing Guidelines was reviewed
de novo. See United States v. Nielsen, 371 F.3d 574, 582 (9th Cir. 2004) (“interpretation” reviewed de novo); United States v. Phillips, 367 F.3d 846,
854 (9th Cir. 2004)
(“interpretation” reviewed de novo); United States v. Mitchell, 354 F.3d
1013, 1014 (9th Cir. 2004)
(“application” reviewed de novo); United States v. Garcia, 323 F.3d 1161,
1164 (9th Cir. 2003)
(“application” reviewed de novo); United States v. Lopez-Garcia, 316 F.3d
967, 970 (9th Cir. 2003)
(“interpretation and application” reviewed de novo).
Opinions since Booker
have continued to apply this standard.
See United States v. Rivera, 527 F.3d 891,
908 (9th Cir. 2008).
United States
v. Carty, 520 F.3d 984, 993 (9th Cir. 2008) established the overarching standards for reviewing
sentencing, but does not specifically address the standard for reviewing a
district court’s interpretation of the Guidelines.
The
following subsections address specific issues related to interpretation and
application of the guidelines.
The
district court’s application of the abuse of trust enhancement is a mixed
question of law and fact reviewed de novo.
See United States v. Hoskins, 282 F.3d 772,
776 (9th Cir. 2002), overruled on other grounds by United States v.
Contreras, 593 F.3d 1135 (9th Cir. 2010)
(en banc) (per curiam); but see United States v. Thornton, 511 F.3d
1221, 1227 (9th Cir. 2008)
(questioning whether de novo review still applies post-Booker, but declining to decide).
The
court’s conclusion that a prior conviction may be used for purposes of
sentencing enhancement is also reviewed de novo. See
United States v. Aguila-Montes de Oca, 655 F.3d 915, 919 (9th Cir. 2011)
(per curiam) (§2L1.2), abrogated on other
grounds by Descamps v. United
States, 133 S. Ct. 2276 (2013).[204] Whether a district court’s determination that
a prior conviction qualifies as a crime of violence is reviewed de novo. See
Aguila-Montes de Oca, 655 F.3d at 919; United States v. Rodriguez-Guzman,
506 F.3d 738, 740-41 (9th Cir. 2007). Whether a defendant is a career offender is
reviewed de novo. See United States v. Mitchell, 624 F.3d
1023, 1025 (9th Cir. 2010);
United States v. Crawford, 520
F.3d 1072, 1077 (9th Cir. 2008);
United States v. Piccolo, 441 F.3d 1084, 1086 (9th Cir. 2006).
Whether the district court can grant prison credit time is a question of law reviewed de novo. See United States v. Peters, 470 F.3d 907, 908-09 (9th Cir. 2006) (per curiam); United States v. Lualemaga, 280 F.3d 1260, 1265 (9th Cir. 2002); United States v. Checchini, 967 F.2d 348, 349 (9th Cir. 1992).
Whether
the aggravated felony provisions of the guidelines apply to a conviction is
reviewed de novo. See United States v. Vidal, 504 F.3d 1072,
1076 (9th Cir. 2007)
(en banc).[205]
Whether
a district court’s method of approximating the relevant drug quantity conforms
to the guidelines is reviewed de novo. See United States v. Chase, 499 F.3d 1061,
1068 (9th Cir. 2007);
United States v. Kilby, 443 F.3d 1135,
1140 (9th Cir. 2006);
United States v. Rosacker, 314 F.3d 422,
425 (9th Cir. 2002).
The
trial court’s “grouping of offenses” for purposes of applying the Sentencing
Guidelines is also reviewed de novo. See
United States v. Melchor-Zaragoza, 351
F.3d 925, 927 (9th Cir. 2003).[206] Note, however, that whether prior convictions
are “related” for purposes of sentencing enhancement is a factual inquiry
reviewed for clear error. See United States v. Woodard, 172 F.3d 717,
719 (9th Cir. 1999);
see also Buford v. United States, 532 U.S. 59, 60
(2001)
(clarifying that standard is a deferential search for clear error).
A trial court’s denial of a motion to reduce
a Guideline sentence pursuant to 18 U.S.C. §
3582(c)(2)
(change in Guideline range) is reviewed for an abuse of discretion. See United States v.
Chaney, 581 F.3d 1123, 1125 (9th
Cir. 2009); United States v. Sprague, 135 F.3d 1301,
1304 (9th Cir. 1998);
United States v. Townsend, 98 F.3d 510,
512 (9th Cir. 1996).
The legality of a Guidelines sentence is reviewed de
novo. See United States v.
Garcia-Guerrero, 635 F.3d 435, 438 (9th
Cir. 2011); United States v. Napier, 463 F.3d 1040, 1042 (9th Cir. 2006).[207]
A
restitution order is reviewed for an abuse of discretion, provided that it is
within the bounds of the statutory framework.
See United States v. Galan, 804 F.3d 1287, 1289 (9th
Cir. 2015) (“We review de novo the
legality of a restitution order and, if the order is within the statutory
bounds, we review the amount of restitution for abuse of discretion. We review
for clear error factual findings supporting an order of restitution.”); United States v. Brock-Davis, 504 F.3d
991, 996 (9th Cir. 2007).[208] When the restitution order is not challenged
before the district court, review is limited to plain error. See United States v. Bright, 353 F.3d 1114,
1120 (9th Cir. 2004);
United States v. De La Fuente, 353 F.3d
766, 769 (9th Cir. 2003).
Factual
findings supporting a restitution order are reviewed for clear error. See Galan, 804 F.3d at 1289; Brock-Davis, 504 F.3d at 996.[209]
The
legality of a restitution order, however, is reviewed de novo. See Galan, 804 F.3d at 1289; Brock-Davis, 504 F.3d at 996; United States
v. Bussell, 414 F.3d 1048, 1060-61 (9th Cir. 2005) (“In contrast to its application of the Sentencing Guidelines,
the district court’s orders of restitution and costs are unaffected by the
changes worked by Booker. . . . We review the legality of the orders de
novo.”).[210]
A
court has broad discretion in ordering restitution. See United States v. Berger, 473 F.3d 1080, 1104 (9th Cir. 2007); United States v. Laney, 189 F.3d 954,
966 (9th Cir. 1999);
United States v. Miguel, 49 F.3d 505,
511 (9th Cir. 1995). The amount of restitution ordered is reviewed
for an abuse of discretion. See United States v. Bussell, 504 F.3d 956,
964 n.9 (9th Cir. 2007).[211] The court’s “valuation methodology” is reviewed,
however, de novo. See Bussell, 504 F.3d at 964 n.9; Berger, 473 F.3d at 1104; see also United States v.
Fu Sheng Ko, 620 F.3d 1158, 1162 (9th Cir. 2010).
The sentencing
court’s compliance with Fed.
R. Crim. P. 32 is reviewed de novo. See United States v. Burkholder, 590 F.3d 1071, 1076 (9th Cir. 2010); United States
v. Stoterau, 524 F.3d 988, 1011 (9th Cir. 2008).[212] The court’s decision whether to hold an
evidentiary hearing on a Rule
32 motion is reviewed for an abuse of discretion. See United States v. Pearson, 274 F.3d 1225,
1234 (9th Cir. 2001). [213] If the defendant failed to request a Rule 32 evidentiary hearing
in district court, this court reviews for plain error. See United States v. Berry, 258 F.3d 971,
976 (9th Cir. 2001).
Claims of insufficient evidence are reviewed de novo. See United States v. Sandoval-Gonzalez, 642 F.3d 717, 727 (9th Cir. 2011) (reviewing de novo the denial of a motion to acquit under Fed. R. Crim. P. 29, based on insufficiency of the evidence); United States v. Bennett, 621 F.3d 1131, 1135 (9th Cir. 2010); United States v. Sullivan, 522 F.3d 967, 974 (9th Cir. 2008).[214]
There
is sufficient evidence to support a conviction if, viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307, 319
(1979);
United States v. Liew, 856 F.3d 585, 596
(9th Cir. 2017).[215] In habeas review, the state court’s
application of Jackson v. Virginia, 443 U.S. 307 (1979) must
be “objectively unreasonable,” the Antiterrorism and Effective Death Penalty
Act of 1996 (“AEDPA”) notwithstanding. See
Juan H. v. Allen, 408 F.3d 1262, 1275
n.13 (9th Cir. 2005)
(as amended) (“We note that this Circuit has not yet decided what standard
applies to sufficiency of the evidence challenges under AEDPA. We conclude that the Supreme Court’s analysis
of AEDPA in Williams compels the
conclusion that the state court’s application of the
When a claim of sufficiency
of the evidence is preserved by making a motion for acquittal at the close of
the evidence, this court reviews the district court’s denial of the motion de
novo. See United States v. Maggi, 598 F.3d 1073,
1080 (9th Cir. 2010),
overruled on other grounds by United States v.
Zepeda, 792 F.3d 1103 (9th Cir. 2015); United States
v. Stewart, 420 F.3d 1007, 1014 (2005); see also United States v.
Sandoval-Gonazlez, 642 F.3d 717, 727 (9th Cir. 2011).[217]
The
defendant’s failure to move for acquittal at the close of all the evidence
limits appellate review to plain error or manifest injustice. See United States v.
Pelisamen, 641 F.3d 399, 408-09
& n.6 (9th Cir. 2011).[218]
District
courts have wide discretion in fashioning a defendant’s obligations during
terms of supervised release. See United States v.
Napulou, 593 F.3d 1041 (9th Cir. 2010). [219] A district court’s decision to impose a
condition of supervised release is typically reviewed for an abuse of
discretion. See United States v.
Rudd, 662 F.3d 1257, 1260 (9th Cir. 2011); United States v.
Apodaca, 641 F.3d 1077, 1079 (9th Cir. 2011).[220] Review is de novo, however, when this court
reviews the district court’s application of the supervised release statute.[221] Jurisdictional issues are also reviewed de
novo. See United States v.
Ignacio Juarez, 601 F.3d 885, 888 (9th Cir. 2010)
(per curiam).[222] Similarly, whether a district court has the
authority to reinstate an original term of supervised release is a question of
law reviewed de novo. See United States v. Trenter, 201 F.3d 1262,
1263 (9th Cir. 2000). Whether a district court has the authority to
modify a fine when it is an express condition of supervised release is also a
question of law reviewed de novo. See
United States v. Miller, 205 F.3d 1098,
1100 (9th Cir. 2000).
It
is plain error to sentence a defendant to a term of supervised release that
exceeds the statutory maximum. See United States v. Guzman-Bruno, 27 F.3d
420, 423 (9th Cir. 1994).
A
district court’s decision to revoke a term of supervised release is reviewed
for an abuse of discretion. See United States v.
Harvey, 659 F.3d 1272, 1274 (9th Cir. 2011).[223] Whether a defendant has received sufficient
due process at a revocation proceeding is a mixed question of law and fact that
is reviewed de novo. See United States v. Perez, 526 F.3d 543,
547 (9th Cir. 2008);
United States v. Havier, 155 F.3d 1090,
1092 (9th Cir. 1998). Any such due process violation is subject to
harmless error analysis. See Perez, 526 F.3d at 547; United States v. Verduzco, 330 F.3d
1182, 1184 (9th Cir. 2003);
United States v. Daniel, 209 F.3d 1091,
1094
(9th Cir.), amended by 216 F.3d 1201 (9th
Cir. 2000);
Havier, 155 F.3d at 1090. A court’s decision at a revocation hearing to
deny defendant’s request for substitute counsel is reviewed for an abuse of
discretion. See United States v. Musa, 220 F.3d 1096,
1102 (9th Cir. 2000). The district court’s refusal to grant vacatur
of a revocation judgment is reviewed for an abuse of discretion. See United States v. Tapia-Marquez, 361 F.3d
535, 537 (9th Cir. 2004).
A
criminal defendant has a right to a record on appeal that includes a complete
transcript of the proceedings at trial. See
United States v. Wilson, 16 F.3d 1027,
1031 (9th Cir. 1994);
United States v. Carrillo, 902 F.2d
1405, 1409 (9th Cir. 1990). A trial court’s finding that transcripts are
accurate and complete cannot be disturbed unless clearly erroneous. See Carrillo, 902 F.2d at 1410. A court’s decision to allow a jury to have
English translations of Spanish wiretap tape recordings is reviewed for an
abuse of discretion. See United States v. Fuentes-Montijo, 68
F.3d 352, 353 (9th Cir. 1995).[224]
A
claim that the district court violated a defendant’s constitutional right to
prepare an adequate defense by refusing to provide free transcripts of a prior
proceeding is reviewed de novo. See United States v. Devlin, 13 F.3d 1361,
1363 (9th Cir. 1994).
The
district court’s decision to use transcripts as an aid in listening to tape
recordings is reviewed for an abuse of discretion. See United States v. Delgado, 357 F.3d 1061,
1068 (9th Cir. 2004),
overruled on other grounds as noted in United States v.
Katakis, 800 F.3d 1017 (9th Cir. 2015).[225] Where there is no dispute as to accuracy,
this court reviews for an abuse of discretion the trial court’s decision to
allow the use of transcripts during trial and to allow them into the jury
room. See United States v. Rrapi, 175 F.3d 742,
746 (9th Cir. 1999).[226] A district court is not, however, required as
a matter of law to determine whether a transcript is accurate before permitting
a jury to look at it. See United States v. Tisor, 96 F.3d 370, 377
(9th Cir. 1996).
The
erroneous inclusion of audio tapes allowed in the jury room that were not
admitted into evidence is constitutional error subject to the harmless error
standard. See Eslaminia v. White, 136 F.3d 1234, 1237
& n.1 (9th Cir. 1998)
(habeas); but see United States v. Noushfar, 78 F.3d 1442,
1445 (9th Cir. 1996), amended by 140 F.3d 1244 (9th
Cir. 1998)
(allowing unplayed audio tapes into the jury room is structural error).
The
trial court’s decision whether to release grand jury transcripts is reviewed
for an abuse of discretion. See United States v. Nash, 115 F.3d 1431,
1440 (9th Cir. 1997).
The
trial court’s refusal to grant a writ of habeas corpus ad testificandum to
allow an individual to testify is reviewed for an abuse of discretion. See United States v. Smith, 924 F.2d 889,
896 (9th Cir. 1991). See
also Barnett v. Norman, 782 F.3d 417 (9th Cir. 2015)
(trial judge abused discretion by permitting prisoner-witnesses to refuse to
answer questions and did nothing to encourage testimony). The court’s allocation of costs under a writ
of habeas corpus ad testificandum is also reviewed for an abuse of
discretion. See Wiggins v. County of Alameda, 717 F.2d
466, 468 (9th Cir. 1983).
This
court reviews de novo the question whether a federal prisoner challenging a
conviction and sentence may properly file a petition for a writ of audita
querela. See United States v. Valdez-Pacheco, 237
F.3d 1077, 1079 (9th Cir. 2000);
United States v. Fonseca-Martinez, 36
F.3d 62, 63 (9th Cir. 1994)
(per curiam). The effectiveness of such
a writ for purposes of immigration is also a pure legal issue reviewed de
novo. See Beltran-Leon v. INS, 134 F.3d 1379, 1380
(9th Cir. 1998). The district court’s decision to grant a writ
of audita querela is reviewed de novo. See
United States v. Gamboa, 608 F.3d 492,
494 (9th Cir. 2010);
United States v. Hovsepian, 359 F.3d
1144, 1153 (9th Cir. 2004)
(en banc).
The denial of a writ of
error coram nobis is reviewed de novo. See
United States v. Chan, 792 F.3d 1151,
1153 (9th Cir. 2015);
United States v. Riedl, 496 F.3d 1003,
1005 (9th Cir. 2007);
Matus-Leva v. United States, 287 F.3d
758, 760 (9th Cir. 2002);
United States v. Walgren, 885 F.2d 1417,
1420 (9th Cir. 1989).
The district court’s decision to grant or
deny a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 is
reviewed de novo. See Davies v. Benov, 856 F.3d 1243, 1246 (9th
Cir. 2017); Zavala v. Ives, 785 F.3d 367, 370 (9th
Cir. 2015) (“We review the district
court's denial of a habeas petition de novo, while we review any underlying
factual findings for clear error.”); Harrison v. Gillespie, 640 F.3d 888, 896-97 (9th
Cir. 2011) (en banc) (adopting
original panel’s majority discussion of standard of review).[227] The court’s
dismissal of a § 2241 petition is also reviewed
de novo. See Marrero v. Ives, 682 F.3d 1190, 1192 (9th
Cir. 2012); Alaimalo v. United
States, 645 F.3d 1042, 1047 (9th
Cir. 2011) (as amended); Zegarra-Gomez v. INS, 314 F.3d 1124,
1126 (9th Cir. 2003).[228] Whether a district court has jurisdiction
over a § 2241
petition is reviewed de novo. See Iasu v. Smith, 511 F.3d 881, 884 (9th
Cir. 2008).[229] A district court’s decision whether to stay
habeas proceedings is reviewed for an abuse of discretion. See Yong v. INS, 208 F.3d 1116, 1119 (9th
Cir. 2000)
(noting review is “somewhat less deferential” than usual abuse of discretion).
For
information regarding how the passage of the Illegal Immigration Reform and
Immigrant Responsibility Act of 1996 (“IIRIRA”) Pub. L. No. 104‑208, 110
Stat. 3009, and the subsequent passage of the REAL ID Act of 2005, Pub. L. No. 109-13, 119
Stat. 231 (2005), affected habeas review of final orders of exclusion, removal,
or deportation see III. Civil Proceedings, C. Trial Decisions in Civil
Cases, 27. Substantive Areas of Law, v. Immigration.
The district
court’s decision to grant or deny a federal prisoner’s 28 U.S.C. § 2255 motion
is reviewed de novo. See United States v. Swisher, 811 F.3d 299,
306 (9th Cir. 2016)
(denial); United States v. Aguirre-Ganceda, 592 F.3d 1043,1045 (9th
Cir. 2010) (denial); Mendoza v.
Carey, 449 F.3d 1065, 1068 (9th Cir. 2006) (denial).[230] Whether a district court has jurisdiction
over a § 2255 motion
is reviewed de novo. See United States v. Monreal, 301 F.3d 1127,
1130 (9th Cir. 2002)
(construing action as a § 2255 motion).[231] The dismissal of a § 2255 motion
based on statute of limitations is reviewed de novo. See United States v. Battles, 362 F.3d 1195,
1196 (9th Cir. 2004).
Findings
underlying the court’s decision on a § 2255 motion
are reviewed for clear error. See Aguirre-Ganceda, 592 F.3d at 1045.[232] The district court’s decision whether to
conduct an evidentiary hearing is reviewed for an abuse of discretion. See Mendoza, 449 F.3d at 1068.[233]
Note
that for purposes of § 2255, constitutional errors may be deemed harmless
unless petitioner demonstrates that the error had a “substantial and injurious
effect or influence” on the jury’s verdict.
See United States v. Montalvo, 331 F.3d
1052, 1057 (9th Cir. 2003)
(applying Brecht standard).
The district court’s decision to grant or deny a 28 U.S.C.§ 2254 habeas
petition is reviewed de novo. See Sanders
v. Cullen, 873 F.3d 778, 793 (9th Cir. 2017); Blair v. Martel, 645 F.3d 1151, 1154 n.1
(9th Cir. 2011);
Leavitt v. Arave, 646 F.3d 605, 608 (9th
Cir. 2011)
(granting); Rodriguez Benitez v. Garcia, 495 F.3d
640, 643 (9th Cir. 2007)
(denying); Arnold v. Runnels, 421 F.3d 859, 862
(9th Cir. 2005)
(denying); Ramirez v. Castro, 365 F.3d 755, 762
(9th Cir. 2004)
(granting).[234] Note that this court may affirm on any ground
supported by the record even if it differs from the rationale of the district
court. See Buckley v. Terhune, 441 F.3d 688, 694
(9th Cir. 2006)
(en banc); Washington v. Lampert, 422 F.3d 864, 869
(9th Cir. 2005);
Ramirez, 365 F.3d at 762.
A dismissal of a habeas petition for mootness
is reviewed de novo. See Abdala v. INS, 488 F.3d 1061, 1063 n.1
(9th Cir. 2007);
Zegarra-Gomez
v. INS, 314 F.3d 1124, 1126 (9th Cir. 2003).
Dismissals based on jurisdiction are also reviewed de novo. See Lucky v. Calderon, 86 F.3d 923, 925 (9th
Cir. 1996);
Cook v. Maleng, 847 F.2d 616, 617 (9th
Cir. 1988)
(per curiam). The rejection of a
sufficiency of the evidence challenge in a habeas petition is also reviewed de
novo. See United States v.
Wright, 625 F.3d 583, 590 (9th
Cir. 2010), superseded by statute on other grounds as
recognized by United States v.
Brown, 785 F.3d 1337, 1351 (9th Cir. 2015);
Chein v. Shumsky, 373 F.3d 978, 982 (9th
Cir. 2004)
(en banc).
Dismissals
based on state procedural default are reviewed de novo. See Robinson v.
Schriro, 595 F.3d 1086, 1099 (9th
Cir. 2010); Griffin v. Johnson, 350 F.3d 956, 960
(9th Cir. 2003);
Cockett v. Ray, 333 F.3d 938, 941 (9th
Cir. 2003).[235]
Dismissals
based on a prisoner’s failure to exhaust remedies are reviewed de novo. See Fields v. Waddington, 401 F.3d 1018,
1020 (9th Cir. 2005);
Peterson v. Lampert, 319 F.3d 1153, 1155
(9th Cir. 2003)
(en banc); Greene v. Lambert, 288 F.3d 1081, 1086
(9th Cir. 2002). Whether a state prisoner must exhaust state
remedies before pursuing a federal constitutional claim is a question of law to
be reviewed de novo. See Blueford v. Prunty, 108 F.3d 251, 255 (9th
Cir. 1997).
Dismissals
of “mixed petitions” are reviewed de novo.
See Wooten v. Kirkland, 540 F.3d 1019, 1023
(9th Cir. 2008);
Robbins v. Carey, 481 F.3d 1143, 1146 (9th Cir. 2007); Cassett v. Stewart, 406 F.3d 614, 620-21
(9th Cir. 2005);
Olvera v. Giurbino, 371 F.3d 569, 572
(9th Cir. 2004)
(noting district court’s decision whether to grant petitioner’s request for
“withdrawal and abeyance” is reviewed for abuse of discretion).
A
dismissal for failure to comply with an order requiring submission of pleadings
within a designated time is reviewed for an abuse of discretion. See Pagtalunan v. Galaza, 291 F.3d 639, 640
(9th Cir. 2002).
Findings
of fact made by the district court are reviewed for clear error. See Leavitt v. Arave, 646 F.3d 605, 608 (9th
Cir. 2011);
Buckley v. Terhune, 441 F.3d 688, 694
(9th Cir. 2006);
Washington v. Lampert, 422 F.3d 864, 869
(9th Cir. 2005);
Riley v. Payne, 352 F.3d 1313, 1317 (9th
Cir. 2003);[236] cf.
Juan H. v. Allen, 408 F.3d 1262, 1269
(9th Cir. 2005)
(“Although we normally review for clear error any factual findings of the
district court, . . . in this case the district court made no independent
factual findings, and so we review the state court findings under the
deferential standards of AEDPA . . . .”).
Note
that the Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
altered habeas review of state convictions brought under § 2254. See Bell v. Cone, 535 U.S. 685, 693 (2002); Bartlett v. Alameida, 366 F.3d 1020,
1023 (9th Cir. 2004)
(noting AEDPA limits appellate review); Riley, 352 F.3d at 1317 (noting
“constrained standards of review”). The
AEDPA does not apply, however, to the merits of petitions filed before the
effective date of the Act. See, e.g., Brown v. Sanders, 546 U.S. 212, 215 n.1
(2006)
(citing Lindh v. Murphy, 521 U.S. 320, 327 (1997)); Doe v. Ayers, 782 F.3d 425, 428 (9th
Cir. 2015)
(governed by pre-AEDPA standards); Duncan v. Ornoski, 528 F.3d 1222,
1232-33 (9th Cir. 2008);
Lambright v. Schriro, 490 F.3d 1103,
1113-14 (9th Cir. 2007);
Raley v. Ylst, 470 F.3d 792, 799 (9th
Cir. 2006);
Caswell v. Calderon, 363 F.3d 832, 836
n.3 (9th Cir. 2004).[237]
Although
this court applies pre-AEDPA law to petitions filed before the Act’s effective
date, post-AEDPA law governs the right of the petitioner to appeal. See Slack v. McDaniel, 529 U.S. 473, 482
(2000)
(holding that AEDPA’s requirements regarding certificates of appealability apply
to petition filed prior to effective date of act); Smith v. Mahoney, 611 F.3d 978, 993 (9th
Cir. 2010)
(amended); Beardslee v. Woodford, 358 F.3d 560, 568
(9th Cir. 2004)
(applying Slack); Nevius v. McDaniel, 218 F.3d 940, 942
(9th Cir. 2000)
(order) (noting § 2253(c) provides that petitioner cannot appeal unless a
circuit justice or judge issues a certificate of appealability).
Under
the AEDPA, a petitioner must demonstrate that the state court’s decision on the
merits was contrary to, or involved an unreasonable application of, clearly
established federal law under United States Supreme Court precedent, or that
the decision was based on an unreasonable determination of the facts. See Lockyer v. Andrade, 538 U.S. 63, 70-73
(2003)
(explaining standard).[238] “A state court decision is an unreasonable
application of clearly established federal law if the state court identified
the correct governing legal rule but unreasonably applied it to the facts at
hand.” Christian v. Frank, 595 F.3d 1076, 1081
(9th Cir. 2010)
(internal quotation marks and citation omitted).
Under
the AEDPA, state court findings of fact are to be presumed correct unless
petitioner rebuts the presumption with clear and convincing evidence. See 28 U.S.C. §
2254(e)(1);
Ybarra v. McDaniel, 656 F.3d 984, 989
(9th Cir. 2011);
Estrada v. Scribner, 512 F.3d 1227, 1235
(9th Cir. 2008).[239] This presumption applies even if the finding
was made by a state court of appeals rather than by the state trial court. See Bragg v. Galaza, 242 F.3d 1082, 1087 (9th
Cir.) amended by 253 F.3d 1150 (9th
Cir. 2001). Where the state court fails to articulate its
reasoning, however, the reviewing court grants less deference to the state court’s
decision. See Brown v. Palmateer, 379 F.3d 1089,
1092-93 (9th Cir. 2004)
(“Because the [state] courts have provided no ratio decidendi to review,
or to which we can give deference, we employ the ‘objectively reasonable’ test. In this situation, federal habeas courts
accord the state court decisions less deference than in standard habeas
cases.”) (citing Delgado v. Lewis, 223 F.3d 976, 982 (9th
Cir. 2000)).[240]
In § 2254 cases,
an error may be harmless unless it “‘had substantial and injurious effect or
influence in determining the jury’s verdict.’” See Brecht v. Abrahamson, 507 U.S. 619, 637
(1993)
(quoting Kotteakos v. United States, 328 U.S. 750,
776 (1946));
Merolillo v. Yates, 663 F.3d 444, 454
(9th Cir. 2011).[241]
The
AEDPA limits a district court’s decision to conduct evidentiary hearings in §
2254 proceedings. See 28 U.S.C. §
2254(e)(2);
see also Ortiz-Sandoval v. Clarke, 323 F.3d 1165,
1171 n.4 (9th Cir. 2003)
(reviewing limitations).[242] If the petitioner failed in state court to
develop the factual basis for a claim, no hearing may be held unless the claim
relies on (1) a new rule of constitutional law or facts previously
undiscoverable and (2) it is clear by “clear and convincing evidence” that but
for the claimed error, “no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. §
2254(e)(2). The district court’s interpretation of these
standards in determining whether to conduct an evidentiary hearing is reviewed
de novo. See Earp v. Ornoski, 431 F.3d 1158, 1166
(9th Cir. 2005);
Baja v. Ducharme, 187 F.3d 1075, 1077
(9th Cir. 1999). The court’s decision to deny an evidentiary
hearing based on these standards is reviewed for an abuse of discretion. See Davis v. Woodford, 333 F.3d 982, 991
(9th Cir. 2003),
amended by 384 F.3d 628 (9th
Cir. 2004).
In
cases not under AEDPA, a state habeas petitioner is entitled to an evidentiary
hearing if she alleged facts that, if proven, would entitle her to relief and
she did not receive a full and fair evidentiary hearing in a state court. See Stankewitz v. Woodford, 365 F.3d 706, 714
(9th Cir. 2004);
Williams v. Woodford, 384 F.3d 567, 586
(9th Cir. 2004).[243] The court’s decision to deny an evidentiary
hearing is reviewed for abuse of discretion.
See Stankewitz, 365 F.3d at 714; Beardslee v. Woodford, 358 F.3d 560, 573
(9th Cir. 2004);
Douglas v. Woodford, 316 F.3d 1079, 1085
(9th Cir. 2003).
The
decision to conduct an evidentiary hearing is also reviewed for an abuse of
discretion. See Lawson v. Borg, 60 F.3d 608, 611 (9th Cir. 1995). The district court’s decision to conduct an
evidentiary hearing without petitioner’s presence is reviewed for an abuse of
discretion. See Wade v. Calderon, 29 F.3d 1312, 1325-26
(9th Cir. 1994),
overruled on other grounds as recognized
by Rohan ex. Rel. Gates v.
Woodford, 334 F.3d 803, 815 (9th Cir. 2003), abrogated by Ryan v. Gonzales, 568 U.S. 57 (2013). The scope of an evidentiary hearing is
reviewed for an abuse of discretion. See
Cooper v. Brown, 510 F.3d 870, 877 (9th
Cir. 2007); Williams, 384 F.3d at 586; LaGrand v. Stewart, 133 F.3d 1253, 1270
(9th Cir. 1998).
“The denial
of a stay and abeyance, … , is reviewed under the abuse-of-discretion
standard.” Dixon v. Baker, 847 F.3d 714, 718 (9th
Cir. 2017).
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”)
limits the scope of review in a habeas case to those issues specified in the
certificate of appealability (“COA”). See
Olvera v. Giurbino, 371 F.3d 569, 572
(9th Cir. 2004);
Hiivala v. Wood, 195 F.3d 1098, 1102-03
(9th Cir. 1999);
see also Williams v. Rhoades, 354 F.3d 1101, 1106
(9th Cir. 2004)
(reviewing related issue not excluded by the COA). A request to broaden the scope of the COA may
be granted if petitioner makes a substantial showing of the denial of a
constitutional right. See Robertson v. Pichon, 849 F.3d 1173,
1187 (9th Cir.),
cert. denied, 138 S. Ct.
269 (2017);
Pham
v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005); see also Silva v. Woodford, 279 F.3d 825, 832
(9th Cir. 2002)
(distinguishing standard of review for purposes of granting COA and for
granting writ of habeas corpus).
Uncertified issues included in a brief are treated as a request to
expand the scope of the COA. See Robertson, 849 F.3d at 1187; Delgadillo v.
Woodford, 527 F.3d 919, 930 (9th Cir. 2008).
The court’s
decision to permit discovery in habeas proceedings is reviewed for an abuse of
discretion. See Bemore v. Chappell, 788 F.3d 1151, 1176
(9th Cir. 2015) (the “district court’s ruling on the discovery motions is
reviewed for abuse of discretion”), cert.
denied sub nom. Davis v. Bemore, 136 S. Ct. 1173 (2016),
and cert. denied sub nom. Bemore v. Davis, 136 S. Ct. 1831 (2016); Cooper v. Brown, 510 F.3d 870, 877 (9th Cir. 2007); Bittaker v. Woodford, 331 F.3d 715, 728
(9th Cir. 2002)
(en banc) (noting habeas discovery is limited to court’s discretion); Rich v. Calderon, 187 F.3d 1064, 1068
(9th Cir. 1999)
(noting discovery is available only in the discretion of the court).
The district court’s decision whether to
conduct an evidentiary hearing for a § 2255 motion
is reviewed for an abuse of discretion. See
United
States v. Rodrigues, 347 F.3d 818, 823 (9th Cir. 2003) (§ 2255); United States v. Leonti, 326 F.3d 1111,
1116 (9th Cir. 2003);
United States v. Christakis, 238 F.3d
1164, 1168 (9th Cir. 2001);
United States v. Chacon-Palomares, 208
F.3d 1157, 1158-59 (9th Cir. 2000).
In pre-AEDPA § 2254 proceedings, a state
habeas petitioner is entitled to an evidentiary hearing if she alleged facts
that, if proven, would entitle her to relief, and she did not receive a full
and fair evidentiary hearing in a state court.
See Stankewitz v. Woodford, 365 F.3d 706,
714 (9th Cir. 2004);
Williams v. Woodford, 384 F.3d 567, 586
(9th Cir. 2004);
Beaty v. Stewart, 303 F.3d 975, 993 (9th
Cir. 2002);
Laboa v. Calderon, 224 F.3d 972, 981 n.7
(9th Cir. 2000).
The court’s decision to deny an evidentiary
hearing is reviewed for abuse of discretion.
See United States v.
Olsen, 704 F.3d 1172, 1178 (9th
Cir. 2013); Fairbanks v. Ayers, 650 F.3d 1243, 1251 (9th
Cir. 2011);
Estrada v.
Scribner, 512 F.3d 1227, 1235 (9th Cir. 2008); Cooper v. Brown,
510 F.3d 870, 877 (9th Cir. 2007);
Beardslee v. Woodford, 358 F.3d 560, 573
(9th Cir. 2004). The decision to conduct an evidentiary
hearing is also reviewed for an abuse of discretion. See Lawson v. Borg, 60 F.3d 608, 611 (9th
Cir. 1995). The district court’s decision to conduct an
evidentiary hearing without petitioner’s presence is reviewed for an abuse of
discretion. See Wade v. Calderon, 29 F.3d 1312, 1325-26
(9th Cir. 1994),
overruled on other grounds as recognized
by Rohan ex. Rel. Gates v.
Woodford, 334 F.3d 803, 815 (9th Cir. 2003),
abrogated by Ryan v. Gonzales,
133 S. Ct. 696 (2013). The scope of an evidentiary hearing is
reviewed for an abuse of discretion. See
Cooper, 510 F.3d at 877; Williams, 384 F.3d at 586; LaGrand v. Stewart, 133 F.3d 1253, 1270
(9th Cir. 1998). See
also Phillips v.
Ornoski, 673 F.3d 1168, 1179 (9th Cir. 2012)
(pre-AEDPA) (the district court’s decision to limit evidentiary hearing to
written evidence is reviewed for abuse of discretion).
Note that the AEDPA limits the district court’s
authority to conduct evidentiary hearings in § 2254 proceedings. See 28 U.S.C. §
2254(e)(2);
see also Ortiz-Sandoval v. Clarke, 323 F.3d 1165,
1171 n.4 (9th Cir. 2003)
(reviewing limitations).[244] If the petitioner failed in state court to
develop the factual basis for a claim, no hearing may be held unless the claim
relies on (1) a new rule of constitutional law or facts previously
undiscoverable and (2) it is clear by “clear and convincing evidence” that but
for the claimed error, “no reasonable factfinder would have found the applicant
guilty of the underlying offense.” 28 U.S.C. §
2254(e)(2). The district court’s interpretation of these
standards in determining whether to conduct an evidentiary hearing is reviewed
de novo. See Earp v. Ornoski, 431 F.3d 1158, 1166
(9th Cir. 2005);
Baja v. Ducharme, 187 F.3d 1075, 1077
(9th Cir. 1999). The court’s decision to deny an evidentiary
hearing based on these standards is reviewed for an abuse of discretion. See Davis v. Woodford, 333 F.3d 982, 991
(9th Cir. 2003),
amended by 384 F.3d 628 (9th
Cir. 2004).
A petition for habeas relief based on an
alleged violation of the Interstate Agreement on Detainers Act (“IAD”) is
reviewed de novo. See King v. Brown, 8 F.3d 1403, 1409 (9th
Cir. 1993);
Snyder v. Sumner, 960 F.2d 1448, 1452
(9th Cir. 1992). Note that a court’s refusal to dismiss an
indictment based on its interpretation of the IAD is reviewed de novo. See United States v. Lualemaga, 280 F.3d
1260, 1263 (9th Cir. 2002).
Allegations of juror misconduct in habeas
cases are reviewed de novo. See Caliendo v. Warden, 365 F.3d 691, 694
(9th Cir. 2004);
Mancuso v. Olivarez, 292 F.3d 939, 949
(9th Cir. 2002),
overruled on other grounds by Slack v. McDaniel,
529 U.S. 473 (2000);
Sassounian v. Roe, 230 F.3d 1097, 1108
(9th Cir. 2000).
The court’s decision not to hold a hearing on alleged juror misconduct is
reviewed for an abuse of discretion. Davis v. Woodford, 333 F.3d 982, 1006
(9th Cir. 2003),
amended by 384 F.3d 628 (9th
Cir. 2004).
The district court’s denial of a motion to
reconsider is reviewed for an abuse of discretion. See Phelps v. Alameida, 569 F.3d 1120, 1131 (9th
Cir. 2009); Herbst v. Cook, 260 F.3d 1039, 1044 (9th
Cir. 2001);
McDowell v. Calderon, 197 F.3d 1253,
1256 (9th Cir. 1999)
(en banc); see also Ybarra v. McDaniel, 656 F.3d 984, 998 (9th Cir. 2011).
Dismissals based on statutes of limitations
are reviewed de novo. See Fue v. Biter, 842 F.3d 650, 653 (9th
Cir. 2016); Bryant v. Ariz.
A.G., 499 F.3d 1056, 1059 (9th
Cir. 2007); Shannon v. Newland, 410 F.3d 1083, 1087
n.3 (9th Cir. 2005).[245] Legal determinations regarding equitable
tolling are also reviewed de novo. See
Bryant, 499 F.3d at 1060; Shannon, 410 F.3d at 1087 n.3; Malcom v. Payne, 281 F.3d 951, 956 (9th
Cir. 2002)
(§ 2254); Corjasso v. Ayers, 278 F.3d 874, 877
(9th Cir. 2002). Note that the district court has the
discretion to stay habeas proceedings pending state action to avoid the
limitations period in § 2244(d). See Valerio v. Crawford, 306 F.3d 742, 771 (9th
Cir. 2002)
(en banc).
The AEDPA made significant changes to 28 U.S.C. § 2244, setting
requirements for filing a second or successive habeas petition. See Cooper v. Woodford, 358 F.3d 1117, 1119
(9th Cir. 2004)
(en banc) (noting limitations); Barapind v. Reno, 225 F.3d 1100, 1111
(9th Cir. 2000)
(noting provision does not apply to § 2241 petitions); Calderon v. U.S. Dist. Court for the Cent.
Dist. of Cal., 163 F.3d 530, 538 (9th Cir. 1998) (en
banc) (discussing AEDPA), overruled in
part on other grounds by Woodford v.
Garceau, 538 U.S. 202, 205 (2003). A district court’s determination that petitioner
failed to establish eligibility under § 2244 to file a successive petition
is reviewed de novo. See Gonzalez v.
Sherman, 873 F.3d 763, 767 (9th
Cir. 2017); Woods v. Carey,
525 F.3d 886, 888 (9th Cir. 2008);
United States v. Villa-Gonzalez, 208
F.3d 1160, 1165 (9th Cir. 2000);
Thompson v. Calderon, 151 F.3d 918, 921
(9th Cir. 1998)
(en banc). A district court’s dismissal
of a petition under abuse of the writ doctrine is reviewed for an abuse of
discretion. See Barapind, 225 F.3d at 1110.[246]
The trial court’s refusal to grant a writ of
habeas corpus ad testificandum to allow an individual to testify is reviewed
for an abuse of discretion. See United States v. Smith, 924 F.2d 889,
896 (9th Cir. 1991). See
also Barnett v. Norman, 782 F.3d 417 (9th Cir. 2015)
(trial judge abused discretion by permitting prisoner-witnesses to refuse to
answer questions and did nothing to encourage testimony). The court’s allocation of costs under a writ
of habeas corpus ad testificandum is also reviewed for an abuse of
discretion. See Wiggins v. County of Alameda, 717 F.2d
466, 468 (9th Cir. 1983).
The denial of a writ of error coram nobis is
reviewed de novo. See United States v. Chan, 792 F.3d 1151,
1153 (9th Cir. 2015);
United States v. Riedl, 496 F.3d 1003,
1005 (9th Cir. 2007);
Matus-Leva v. United States, 287 F.3d
758, 760 (9th Cir. 2002);
United States v. Walgren, 885 F.2d 1417,
1420 (9th Cir. 1989).
[1] See, e.g., United States v. Lam, 251 F.3d 852, 855 (9th
Cir.) (speedy trial), amended by 262 F.3d 1033 (9th
Cir. 2001)
(order); United States v. Benboe, 157 F.3d 1181,
1183 (9th Cir. 1998)
(possession of firearm); United States v. Hernandez, 109 F.3d
1450, 1454 (9th Cir. 1997)
(exculpatory evidence).
[2] See, e.g., United States v.
Enas, 255 F.3d 662, 665 (9th Cir. 2001)
(en banc) (double jeopardy); United States v. Silva, 247 F.3d 1051,
1054 (9th Cir. 2000)
(standing); United States v. Olafson, 213 F.3d 435,
439 (9th Cir. 2000)
(reasonable suspicion); United States v. Bowen, 172 F.3d 682,
688 (9th Cir. 1999)
(joinder); United States v. Lester, 85 F.3d 1409,
1410 (9th Cir. 1996)
(criminal forfeiture).
[3] See United States v.
Taylor, 322 F.3d 1209, 1211 (9th Cir. 2003)
(accessory after the fact statute); United States v. Carranza, 289 F.3d 634,
642 (9th Cir. 2002)
(importation statute); United States v. Lincoln, 277 F.3d 1112,
1113 (9th Cir. 2002)
(MVRA).
[4] Note “[t]here is ‘an intracircuit
conflict as to whether the standard of review for application of the Guidelines to the facts is de novo or only for
abuse of discretion,’” United States
v. McEnry, 659 F.3d 893, 896 n.5 (9th Cir. 2011) (quoting United States v. Laurienti, 611 F.3d
530, 552 (9th Cir. 2010)
(emphasis added)). See also United States v. Bernardo, 818 F.3d 983,
985 (9th Cir. 2016)
(not resolving the conflict because the court would reach the same conclusion
under either standard); United States v. Sullivan, 797 F.3d 623, 641 n.13 (9th Cir. 2015), cert. denied, 136 S. Ct. 2408
(2016)
(noting intracircuit conflict regarding standard of review for the application
of the Guidelines to the facts).
[5] Arnold v. Runnels, 421 F.3d 859, 867
(9th Cir. 2005)
(explaining standard); United States v. Mett, 178 F.3d 1058,
1066 (9th Cir. 1999);
United States v. Crosby, 75 F.3d 1343,
1349 (9th Cir. 1996)
(explaining standard); United States v. Hernandez, 109 F.3d
1450, 1453 (9th Cir. 1997)
(finding harmlessness under either “fair assurance” or “more probably than not”
standard).
[6] See, e.g., Evanchyk v. Stewart, 340 F.3d 933, 941
n. 3 (9th Cir. 2003)
(noting this circuit “has not always used the same language in describing the
harmless error standard in habeas cases”); Gill v. Ayers, 342 F.3d 911, 921 (9th
Cir. 2003)
(applying Brecht); Padilla v. Terhune, 309 F.3d 614, 621
(9th Cir. 2002)
(same).
[7] See, e.g., United States v.
Garcia, 522 F.3d 855, 860 (9th Cir. 2008)
(supervised release conditions); United States v.
Brooks, 508 F.3d 1205, 1209 (9th Cir. 2007)
(vouching); United States v. De La Fuente, 353 F.3d
766, 769 (9th Cir. 2003)
(restitution order); United States v. Luna-Orozco, 321 F.3d
857, 860 (9th Cir. 2003)
(plea deficiency); United States v. Buckland, 289 F.3d 558,
568-69 (9th Cir. 2002)
(en banc) (Apprendi claim); United States v. Godinez-Rabadan, 289
F.3d 630, 632 (9th Cir. 2002)
(sufficiency of indictment); United States v. Antonakeas, 255 F.3d
714, 727 (9th Cir. 2001)
(sentencing); United States v. Romero-Avila, 210 F.3d
1017, 1021-22 (9th Cir. 2000)
(prosecutor’s statements).
[8] See
also United States v.
Shi, 525 F.3d 709, 730 (9th
Cir. 2008); United States v. Gamez, 301 F.3d 1138,
1144 (9th Cir. 2002)
(due process test considers totality of circumstances); Pollard v. Galaza, 290 F.3d 1030, 1032
(9th Cir. 2002)
(habeas).
[9] See United States v. Shryock, 342 F.3d 948,
987 (9th Cir. 2003)
(accomplice-corroboration/duress); United States v. Arellano-Rivera, 244
F.3d 1119, 1125 (9th Cir. 2001)
(necessity); United States v. Ramirez-Valencia, 202
F.3d 1106, 1109 (9th Cir. 2000)
(entrapment by estoppel).
[10] See, e.g., United States v.
Price, 314 F.3d 417, 420 (9th Cir. 2002)
(double jeopardy); United States v. Pitner, 307 F.3d 1178,
1182 (9th Cir. 2002)
(Sixth Amendment); United States v. Hancock, 231 F.3d 557,
561 (9th Cir. 2000)
(due process and equal protection); United States v. Munsterman, 177 F.3d
1139, 1141 (9th Cir. 1999)
(bills of attainder); United States v. Romeo, 114 F.3d 141,
142 (9th Cir. 1997)
(collateral estoppel/double jeopardy); United States v. Fulbright, 105 F.3d
443, 452 (9th Cir. 1997),
overruled in part on other grounds by
United States v. Heredia, 483 F.3d 913,
920 (9th Cir. 2007)
(Fifth Amendment).
[11] See, e.g., United States v.
Quoc Viet Hoang, 486 F.3d 1156, 1162 (9th Cir. 2007)
(motion to suppress); United States v. Leonti, 326 F.3d 1111,
1116 (9th Cir. 2003)
(habeas); United States v. Hayes, 231 F.3d 1132,
1135 (9th Cir. 2000)
(Rule 35 motion); United States v. Houston, 217 F.3d 1204,
1206-07 (9th Cir. 2000)
(sentencing).
[12] See also Bastidas v. Chappell, 791 F.3d 1155, 1159 (9th
Cir. 2015) (habeas); United States
v. Real Property, 135 F.3d 1312, 1314 (9th Cir. 1998) (civil
forfeiture).
[13] Admission
of statements made in violation of Miranda
are subject to harmless error review. See United States v.
Williams, 435 F.3d 1148, 1151 (9th Cir. 2006).
[14] For specific defenses, see United States v.
Ibarra-Pino, 657 F.3d 1000, 1003 (9th Cir. 2011)
(duress); United States v.
Batterjee, 361 F.3d 1210, 1216 (9th Cir. 2004)
(entrapment); United States v. Shryock, 342 F.3d 948,
987 (9th Cir. 2003)
(accomplice-corroboration & duress); United States v. Pierre, 254 F.3d 872,
875 (9th Cir. 2001)
(lesser-included-offense); United States v. Arellano-Rivera, 244
F.3d 1119, 1125 (9th Cir. 2001)
(necessity); United States v. Ross, 206 F.3d 896, 898
(9th Cir. 2000)
(motion in limine); United States v. de Cruz, 82 F.3d 856, 867 (9th Cir. 1996)
(mistake of law).
[15] For
specific examples see, e.g.,
United States v. Sandoval-Venegas, 292
F.3d 1101, 1104 (9th Cir. 2002)
(warrantless arrest); United States v. Parks, 285 F.3d 1133,
1141 (9th Cir. 2002)
(vehicle search); United States v. Real
Property Located at 22 Santa Barbara
Drive, 264 F.3d 860, 868 (9th Cir. 2001)
(civil forfeiture); Picray v. Sealock, 138 F.3d 767, 770‑71
(9th Cir. 1998)
(warrantless arrest in § 1983 action); United States v. Jones, 84 F.3d 1206,
1210 (9th Cir. 1996)
(probable cause to arrest).
[16] See also Dawson v. City of
Seattle, 435 F.3d 1054, 1062 (9th Cir. 2006)
(noting magistrate judge’s finding of probable cause is reviewed for clear
error); United States v. Nielsen, 371 F.3d 574,
579 (9th Cir. 2004)
(same); United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003)
(same).
[17] See also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995)
(applying same standard to recusal in civil forfeiture action).
[18] See also Santiago v.
Rumsfeld, 425 F.3d 549, 556 n.5 (9th Cir. 2005)
(habeas).
[19] See,
e.g., United States v. Abbouchi, 502 F.3d 850,
854 n.1 (9th Cir. 2007)
(package shipment); United States v. Bennett, 363 F.3d 947,
950 (9th Cir. 2004)
(boat); United States v. Vargas-Castillo, 329
F.3d 715, 722 (9th Cir. 2003)
(vehicle); United States v. Okafor, 285 F.3d 842,
845 (9th Cir. 2002)
(plane); United States v. Ani, 138 F.3d 390, 391
(9th Cir. 1998)
(mail); United States v. Nates, 831 F.2d 860,
862 (9th Cir. 1987).
[20] See also United States v.
Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003); United States v. Nielsen, 371 F.3d 574,
579 (9th Cir. 2004)
(noting finding of probable cause is reviewed for clear error); United States v. Leasure, 319 F.3d 1092,
1099 (9th Cir. 2003)
(same).
[21] See also Liston v. County
of Riverside, 120 F.3d 965, 973 (9th Cir. 1997)
(civil rights action based on unlawful search).
[22] See United States v. Williamson, 439 F.3d 1125, 1135 n.8 (9th Cir. 2006) (search warrant); United States v. Sandoval-Venegas, 292 F.3d 1101, 1104 (9th Cir. 2002) (warrantless arrest); United States v. Parks, 285 F.3d 1133, 1141 (9th Cir. 2002) (vehicle search); United States v. Real Property Located at 22 Santa Barbara Drive, 264 F.3d 860, 868 (9th Cir. 2001) (civil forfeiture); Picray v. Sealock, 138 F.3d 767, 770‑71 (9th Cir. 1998) (warrantless arrest in § 1983 action); United States v. Jones, 84 F.3d 1206, 1210 (9th Cir. 1996) (probable cause to arrest).
[23] See also United States v.
Chavez-Miranda, 306 F.3d 973, 980 (9th Cir. 2002)
(noting compliance with “knock and announce” standards is reviewed de novo); United States v. Granville, 222 F.3d
1214, 1217 (9th Cir. 2000)
(noting de novo review applies to legal conclusion that “knock and announce”
statute was violated while clear error review applies to findings of historical
facts underlying conclusion).
[24] See also United States v.
Fernandez-Castillo, 324 F.3d 1114, 1117 (9th Cir. 2003)
(reviewing de novo whether investigatory stop was supported by reasonable
suspicion under the totality of the circumstances).
[25] See,
e.g., United States v. Ortega, 203 F.3d 675,
679 (9th Cir. 2000)
(direct appeal); United States v. Mett, 65 F.3d 1531,
1534 (9th Cir. 1995)
(coram nobis); United States v. Benlian, 63 F.3d 824,
826 (9th Cir. 1995)
(ineffective assistance of counsel claim).
[26] See also Selam v. Warm
Springs Tribal Corr. Facility, 134 F.3d 948, 951 (9th Cir. 1998)
(tribal court); Paradis v. Arave, 20 F.3d 950, 956 (9th
Cir. 1994)
(habeas).
[27] Compare United States v. Adamson, 291 F.3d 606,
612 (9th Cir. 2002)
(applying de novo review); United States v. Ortega, 203 F.3d 675,
682 (9th Cir. 2000)
(same); United States v. James, 139 F.3d 709,
713 (9th Cir. 1998)
(same); with United States v.
Lo, 231 F.3d 471, 482 (9th Cir. 2000)
(applying abuse of discretion standard); with
United States v. Shryock, 342 F.3d 948,
979 (9th Cir. 2003); United States v.
Bensimon, 172 F.3d 1121, 1128 (9th Cir. 1999)
(noting that de novo review applies to determination of whether limitations on
cross-examination violated right to confrontation but that “[t]he district
court, however, has considerable discretion in restricting cross-examination,
and this court will find error only when that discretion has been abused.”).
[28] See also Hernandez v. Small, 282 F.3d 1132, 1144 (9th Cir. 2002)
(habeas); Whelchel v. Washington, 232 F.3d 1197,
1205 (9th Cir. 2000)
(habeas).
[30] See also Oja v. U.S. Army
Corps of Engineers, 440 F.3d 1122, 1127 (9th Cir. 2006)
(“We review de novo the question of when a cause of action accrues and whether
a claim is barred by the statute of limitations.”).
[31] See also United States v.
Howell, 231 F.3d 615, 620 (9th Cir. 2000)
(“An evidentiary hearing on a motion to suppress need be held only when the
moving papers allege facts with sufficient definiteness, clarity, and
specificity to enable the trial court to conclude that contested issues of fact
exist.”).
[32] See,
e.g., United States v. Younger, 398 F.3d 1179,
1185 (9th Cir. 2005)
(Miranda waiver); United States v. Sutcliffe, 505 F.3d
944, 954 (9th Cir. 2007);
United States v. Amlani, 169 F.3d 1189,
1194 (9th Cir. 1999)
(waiver of attorney-client privilege); United States v. Aguilar-Muniz, 156 F.3d
974, 976 (9th Cir. 1998)
(right to appeal); United States v. Duarte‑Higareda,
113 F.3d 1000, 1002 (9th Cir. 1997)
(waiver of jury trial); United States v. Anderson, 79 F.3d 1522,
1525 (9th Cir. 1996)
(privilege against self-incrimination); United States v. Reyes, 8 F.3d 1379,
1383 (9th Cir. 1993)
(waiver of jury trial by jury over government objection); but see United States v. Lumitap, 111 F.3d 81,
83 (9th Cir. 1997)
(district court’s denial of a defendant’s motion to waive presence at trial
reviewed for abuse of discretion).
[33] See
also United States v. Reeves, 210 F.3d 1041,
1046 (9th Cir. 2000);
United States v. Wong, 334 F.3d 831,
835-36 (9th Cir. 2003);
United States v. Celestine, 324 F.3d
1095, 1000 (9th Cir. 2003);
United States v. Bowman, 215 F.3d 951,
963 n.6 (9th Cir. 2000);
United States v. Hernandez, 937 F.2d
1490, 1494 (9th Cir. 1991)
(the standard of review is “less probing than de novo review and shows
deference to the issuing magistrate’s determination.”).
[34] See also United States v. Barajas-Avalos, 377
F.3d 1040, 1058 (9th Cir. 2004)
(legal sufficiency of a redacted affidavit); United States v. Noushfar, 78 F.3d 1442,
1447 (9th Cir. 1996),
amended by 140 F.3d 1244 (9th
Cir. 1998).
[35] See also United States v.
Hitchcock, 286 F.3d 1064, 1071 (9th Cir. 2002), amended and superseded by 298 F.3d 1021 (9th
Cir. 2002);
United States v. Cannon, 264 F.3d 875,
878 (9th Cir. 2001);
United States v. Gorman, 104 F.3d 272,
274 (9th Cir. 1996).
[36] See also United States v.
Johnson, 256 F.3d 895, 909 n.1 (9th Cir. 2001)
(en banc) (overruling prior cases that applied clear error standard); but see United States v. Romero-Bustamente, 337
F.3d 1104, 1107-08 n.2 (9th Cir. 2003)
(questioning Johnson’s precedential
value on the standard of review).
[37] See also United States v.
McGuire, 307 F.3d 1192, 1197 (9th Cir. 2002); United States v. Blackmon, 273 F.3d
1204, 1207 (9th Cir. 2001);
United States v. Echavarria‑Olarte,
904 F.2d 1391, 1395 (9th Cir. 1990);
United States v. Carneiro, 861 F.2d
1171, 1177 (9th Cir. 1988).
[38] See also McGuire, 307 F.3d at 1197; Blackmon, 273 F.3d at 1207; United States v. Khan, 993 F.2d 1368,
1375 (9th Cir. 1993);
Carneiro, 861 F.2d at 1176.
[39] See also United States v.
Dearing, 504 F.3d 897, 900 (9th Cir. 2007); United States v. Atalig, 502 F.3d 1063,
1066 (9th Cir. 2007);
United States v. Johnson, 357 F.3d 980,
983 (9th Cir. 2004);
United States v. Somsamouth, 352 F.3d
1271, 1274 (9th Cir. 2003).
[40] See United States v. Sutcliffe, 505 F.3d
944, 959 (9th Cir. 2007); Dearing, 504 F.3d at 900; Atalig, 502 F.3d at 1066; Somsamouth, 352 F.3d at 1274-75.
[41] See United States v. Cohen, 510 F.3d 1114,
1123 (9th Cir. 2007)
(Rule 702 and 704(b)); United States v. Salcido, 506 F.3d 729,
732 (9th Cir. 2007)
(per curiam) (Rule 901); United States v. Moran, 493 F.3d 1002,
1012 (9th Cir. 2007)
(Rule 403); United States v. Plancarte-Alvarez, 366
F.3d 1058, 1062 (9th Cir. 2004)
(Rule 404(b)).
[42] See also United States v.
Yida, 498 F.3d 945, 949 (9th Cir. 2007); United States v. Durham, 464 F.3d 976,
981 (9th Cir. 2006).
[43] See also United States v.
Murphy, 65 F.3d 758, 761 (9th Cir. 1995); United States v. Wood, 943 F.2d 1048,
1055 n.9 (9th Cir. 1991).
[44] See also United States v. James, 169 F.3d 1210,
1214 (9th Cir. 1999)
(en banc) (noting review of discretionary evidentiary rulings is abuse of
discretion); United States v. Thompson, 37 F.3d 450,
452 (9th Cir. 1994)
(evidentiary ruling that raises predominantly legal question is reviewed de
novo).
[45] See also United States v. Panaro, 266 F.3d 939,
951 (9th Cir. 2001)
(reciting standard); United States v. Workinger, 90 F.3d
1409, 1415 (9th Cir. 1996)
(same).
[46] See also Cooperwood v. Cambra, 245 F.3d 1042,
1047 (9th Cir. 2001)
(habeas) (reviewing de novo the state court’s ruling on the Batson prima facie issue).
[47] See also Williams v. Rhoades, 354 F.3d 1101, 1107
(9th Cir. 2004)
(habeas) (reviewing de novo the facial validity of prosecutor’s proffered
reasons).
[48] See also United States v. Steele, 298 F.3d 906,
910 (9th Cir. 2002)
(noting whether defendant has made a prima facie showing of racial
discrimination is reviewed for clear error); United States v. Hernandez-Herrera, 273
F.3d 1213, 1218 (9th Cir. 2001)
(same); United States v. Gillam, 167 F.3d 1273,
1278 (9th Cir. 1999)
(“The district court’s determination on intent to discriminate is reviewed
under a deferential standard.”).
[49] See also United States v.
Smith, 282 F.3d 758, 768 (9th Cir. 2002); United States v. Castillo, 181 F.3d
1129, 1132 (9th Cir. 1999);
United States v. Bracy, 67 F.3d 1421,
1432 (9th Cir. 1995).
[50] See also United States v.
Cooper, 173 F.3d 1192, 1203 (9th Cir. 1999); United States v. Etsitty, 130 F.3d 420,
424 (9th Cir. 1997)
(per curiam), amended by 140 F.3d 1274 (9th
Cir. 1998).
[51] See also United States v.
Marcucci, 299 F.3d 1156, 1158 (9th Cir. 2002) (per
curiam); United States v.
Senchenko, 133 F.3d 1153, 1156 (9th Cir. 1998).
[52] See also United States v.
Leon-Reyes, 177 F.3d 816, 821 (9th Cir. 1999); United States v. Cooper, 173 F.3d 1192,
1203 (9th Cir. 1999).
[53] See also United States v.
Shryock, 342 F.3d 948, 981 (9th Cir. 2003); United States v. Bowman, 215 F.3d 951,
960 (9th Cir. 2000);
United States v. Gil, 58 F.3d 1414, 1419
(9th Cir. 1995).
[54] See also United States v.
Nielsen, 371 F.3d 574, 581 (9th Cir. 2004); United States v. Murillo, 288 F.3d 1126, 1137 (9th Cir. 2002); United States v. Boone, 229 F.3d 1231,
1233 (9th Cir. 2000);
see also Selam v. Warm Springs Tribal Corr. Facility,
134 F.3d 948, 951 (9th Cir. 1998)
(tribal court); Paradis v. Arave, 20 F.3d 950, 956 (9th
Cir. 1994)
(habeas).
[55] See also United States v.
Schoneberg, 396 F.3d 1036, 1044 (9th Cir. 2004)
(listing factors); United States v. Orellana-Blanco, 294
F.3d 1143, 1148 (9th Cir. 2002);
United States v Ortega, 203 F.3d 675,
682 (9th Cir. 2000);
see also Hernandez v. Small, 282 F.3d 1132, 1144
(9th Cir. 2002)
(habeas); Whelchel v. Washington, 232 F.3d 1197,
1205 (9th Cir. 2000)
(habeas).
[56] See,
e.g., United States v. Erickson, 75 F.3d 470,
475 (9th Cir. 1996)
(vagueness, overbroadness and “prior restraint”); United States v. Woodley, 9 F.3d 774,
778 (9th Cir. 1993)
(vagueness); United States v. Coutchavlis, 260 F.3d
1149, 1155 (9th Cir. 2001)
(vagueness); United States v. Albers, 226 F.3d 989,
992 (9th Cir. 2000)
(same).
[57] See also United States v.
Albers, 226 F.3d 989, 994 (9th Cir. 2000); United States v. Ani, 138 F.3d 390, 391
(9th Cir. 1998).
[58] See also United States v.
Lujan, 504 F.3d 1003, 1006 (9th Cir. 2007)
(supervised release condition); United States v. Strong, 489 F.3d 1055,
1060 (9th Cir. 2007)
(mandatory government treatment); United States v. Naghani, 361 F.3d 1255,
1259 (9th Cir. 2004).
[59] See also United States v.
Norbury, 492 F.3d 1012, 1014 (9th Cir. 2007); United States v. Tapia-Romero, 523 F.3d
1125, 1126 (9th Cir. 2008)
(sentencing); United States v. Hir, 517 F.3d 1081,
1086 (9th Cir. 2008)
(Bail Reform Act); United States v. Macias-Valencia, 510
F.3d 1012, 1013 (9th Cir. 2007)
(DEA); United States v. Gamboa-Cardenas, 508
F.3d 491, 495 (9th Cir. 2007)
(sentencing); United States v. Atalig, 502 F.3d 1063,
1066 (9th Cir. 2007)
(false claims); United States v. Cabaccang, 332 F.3d
622, 624-25 (9th Cir. 2003)
(en banc).
[60] See also United States v.
Nguyen, 262 F.3d 998, 1002 (9th Cir. 2001); United States v. Zamora‑Hernandez,
222 F.3d 1046, 1049 (9th Cir. 2000);
United States v. Garrett, 179 F.3d 1143,
1144-45 (9th Cir. 1999)
(en banc).
[61] See also United States v.
Cervantes, 219 F.3d 882, 891 (9th Cir. 2000), overruled in part on other grounds by Brigham City v.
Stuart, 547 U.S. 398, 402 (2006).
[62] See also United States v.
Daas, 198 F.3d 1167, 1174 (9th Cir. 1999); United States v. Leon-Reyes, 177 F.3d
816, 821 (9th Cir. 1999);
United States v. Garcia-Guizar, 160 F.3d
511, 521 (9th Cir. 1998);
United States v. Rudberg, 122 F.3d 1199,
1206 (9th Cir. 1997).
[63] See also United States v.
Geston, 299 F.3d 1130, 1137 (9th Cir. 2002); United States v. Bensimon, 172 F.3d
1121, 1128 (9th Cir. 1999).
[64] See also United States v. Bachsian, 4 F.3d 796,
799 (9th Cir. 1993)
(shipping documents); United States v. Hernandez, 876 F.2d
774, 778 (9th Cir. 1989)
(police reports); United States v. Miller, 874 F.2d 1255,
1275 (9th Cir. 1989)
(classified documents); United States v. Black, 767 F.2d 1334,
1342 (9th Cir. 1985)
(confirmation sale slips).
[65] See also United States v.
Kuchinski, 469 F.3d 853, 857 (9th Cir. 2006)
(sentencing); United States v. Patterson, 381 F.3d
859, 863 (9th Cir. 2004)
(plea agreement); United States v. Radmall, 340 F.3d 798,
800 n. 4 (9th Cir. 2003)
(resentencing); United States v. McClain, 133 F.3d 1191,
1193 (9th Cir. 1998)
(habeas); United States v. Stoddard, 111 F.3d
1450, 1454 (9th Cir. 1997)
(conspiracy); United States v. Seley, 957 F.2d 717,
720 (9th Cir. 1992)
(relationship of collateral estoppel to double jeopardy reviewed de novo); United States v. Stauffer, 922 F.2d 508,
513 (9th Cir. 1990)
(whether trial court’s correction of verdict form violates double jeopardy
reviewed de novo).
[67] See also United States v.
Si, 343 F.3d 1116, 1125 (9th Cir. 2003); United States v. Mendoza-Prado, 314 F.3d
1099, 1102 (9th Cir. 2002);
United States v. Tucker, 133 F.3d 1208,
1214 (9th Cir. 1998).
[68] See also United States v.
Hancock, 231 F.3d 557, 561 (9th Cir. 2000); United States v. Ramirez-Valencia, 202
F.3d 1106, 1109 (9th Cir. 2000).
[69] See also United States v.
Reese, 60 F.3d 660, 661 (9th Cir. 1995); United States v. Lorenzo, 43 F.3d 1303,
1306 (9th Cir. 1995).
[70] See also United States v. Tisor, 96 F.3d 370, 376
(9th Cir. 1996);
United States v. Flores, 172 F.3d 695,
698 (9th Cir. 1999);
United States v. Serang, 156 F.3d 910,
915 (9th Cir. 1998).
[71] See United States v. Hardy, 289 F.3d 608,
612 (9th Cir. 2002)
(relevance); United States v. Angwin, 271 F.3d 786,
798 (9th Cir. 2001)
(noting “rulings which raise predominantly legal questions” are reviewed de
novo), overruled in part on other grounds
by United States v.
Lopez, 484 F.3d 1186, 1200 n.17 (9th Cir. 2007)
(en banc); United States v. James, 169 F.3d 1210,
1214 (9th Cir. 1999)
(en banc); United States v. Castillo, 181 F.3d
1129, 1134 (9th Cir. 1999).
[72] See also United States v.
Yida, 498 F.3d 945, 949 (9th Cir. 2007); United States v. Sioux, 362 F.3d 1241,
1244 n.5 (9th Cir. 2004);
United States v. Bensimon, 172 F.3d
1121, 1125 (9th Cir. 1999).
[73] See,
e.g., United States v. Beckman, 298 F.3d 788,
792 (9th Cir. 2002)
(harmless error); United States v. Bensimon, 172 F.3d
1121, 1125 (9th Cir. 1999)
(prior criminal conviction); United States v. Beltran, 165 F.3d 1266,
1269 (9th Cir. 1999)
(prior inconsistent statements); United States v. Rowe, 92 F.3d 928, 933
(9th Cir. 1996)
(prior crime).
[74] See also United States v.
McCaleb, 552 F.3d 1053, 1060 (9th Cir. 2009)
(whether testimony was sufficiently reliable); United States v. Moran, 493 F.3d 1002,
1008 (9th Cir. 2007)
(on expert witnesses and impermissible legal conclusions); United States v. Freeman, 498 F.3d 893,
900 (9th Cir. 2007)
(admitting a single person as both lay and expert witness); United States v. Hanna, 293 F.3d 1080,
1085 (9th Cir. 2002);
United States v. Abonce-Barrera, 257
F.3d 959, 964 (9th Cir. 2001)
(whether an expert witness has sufficient qualifications to testify); United States v. Alatorre, 222 F.3d
1098, 1100 (9th Cir. 2000);
United States v. Marsh, 26 F.3d 1496,
1502 (9th Cir. 1994)
(refusal to allow an expert to testify regarding a witness’s psychiatric
condition).
[75] See also United States v.
Prime, 431 F.3d 1147, 1152 (9th Cir. 2005); United States v. Seschillie, 310 F.3d
1208, 1211-12 (9th Cir. 2002);
United States v. Johnson, 297 F.3d 845,
862 (9th Cir. 2002);
United States v. Benavidez-Benavidez,
217 F.3d 720, 723 (9th Cir. 2000).
[76] In 1997,
the Ninth Circuit sitting en banc noted that “although there appears to be no
practical difference” between abuse of discretion and manifest error review,
earlier cases had used the two standards inconsistently. The court explicitly adopted abuse of
discretion as the proper standard, “to the extent [the two standards were] …
different.” United States v. Morales, 108 F.3d 1031,
1034 & n.1 (9th Cir. 1997)
(en banc). Later that same year, the
Supreme Court conflated the two terms by stating that abuse of discretion is
the proper standard in reviewing decisions on expert testimony, and describing
that standard as requiring reversal only where the decision was “manifestly
erroneous.” General Electric
Co. v. Joiner, 522 U.S. 136, 142 (1997). Subsequent cases have again used the terms in
parallel. See United States v. Gonzales, 307 F.3d 906,
909 (9th Cir. 2002).
[77] See also United States v.
Gregory, 322 F.3d 1157, 1161 (9th Cir. 2003)
(due process); United States v. Beckman, 298 F.3d 788,
795 (9th Cir. 2002)
(references to defendant’s silence); United States v. Velarde-Gomez, 269 F.3d
1023, 1028 (9th Cir. 2001)
(en banc) (evidence of defendant’s physical or emotional reaction); United States v. Coutchavlis, 260 F.3d
1149, 1156 (9th Cir. 2001)
(judge’s reference to defendant’s decision not to testify).
[78] See also United States v.
Yida, 498 F.3d 945, 949 (9th Cir. 2007); United States v. Washington, 462 F.3d
1124, 1135 (9th Cir. 2006);
United States v. Weiland, 420 F.3d 1062,
1074 n.9 (9th Cir. 2005); United States v. Alvarez, 358 F.3d 1194, 1214 (9th Cir. 2004); United States v. Orellana-Blanco, 294
F.3d 1143, 1148 (9th Cir. 2002).
[79] See
also Weiland, 420 F.3d at 1074 n.9; Alvarez, 358 F.3d at 1214
(noting error may be harmless); United States v. Scholl, 166 F.3d 964,
978 (9th Cir. 1999).
[80] See
also Yida, 498 F.3d at 949; United States v. Shryock, 342 F.3d 948,
981 (9th Cir. 2003);
United States v. Alarcon-Simi, 300 F.3d
1172, 1175 (9th Cir. 2002).
[81] See also United States v.
Beckman, 298 F.3d 788, 792 (9th Cir. 2002)
(harmless error); United States v. Bensimon, 172 F.3d
1121, 1125 (9th Cir. 1999)
(prior criminal conviction); United States v. Beltran, 165 F.3d 1266,
1269 (9th Cir. 1999)
(prior inconsistent statements).
[82] See also United States v.
Carbajal, 956 F.2d 924, 929 (9th Cir. 1992); United States v. Walitwarangkul, 808
F.2d 1352, 1353 (9th Cir. 1987).
[83] See also United States v. Alaimalo, 313 F.3d
1188, 1191 (9th Cir. 2002)
(§ 2255); Mancuso v. Olivarez, 292 F.3d 939, 949
(9th Cir. 2002)
(§ 2254), overruled on other grounds by Slack v. McDaniel,
529 U.S. 47 (2000);
LaGrand v. Stewart, 133 F.3d 1253, 1269‑70
(9th Cir. 1998)
(noting claim presents a mixed question of law and fact reviewed de novo).
[84] See also United States v.
Sager, 227 F.3d 1138, 1149 (9th Cir. 2000)
(declining review); United States v. Ross, 206 F.3d 896, 899
(9th Cir. 2000)
(noting when direct review is permissible).
[85] United States v. Leonti, 326 F.3d 1111,
1116 (9th Cir. 2003)
(§ 2255); United States v. Chacon-Palomares, 208
F.3d 1157, 1158-59 (9th Cir. 2000)
(habeas).
[86] See also United States v.
Shryock, 342 F.3d 948, 974 (9th Cir. 2003)
(whether to impose security measures during trial); United States v. Morgan, 376 F.3d 1002,
1006-07 (9th Cir. 2004)
(questioning of witness).
[87] See also United States v.
Silver, 245 F.3d 1075, 1078 (9th Cir. 2001); United States v. Wilkerson, 208 F.3d
794, 797 (9th Cir. 2000);
United States v. Eshkol, 108 F.3d 1025,
1030 (9th Cir. 1997);
see also United States v. Rogers, 119 F.3d 1377,
1380 (9th Cir. 1997)
(motion to disqualify); United States v.
$292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995)
(civil forfeiture action).
[88] See also United States v.
Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007); United States v. Shryock, 342 F.3d 948,
973 (9th Cir. 2003);
United States v. Long, 301 F.3d 1095,
1101 (9th Cir. 2002);
United States v. Beard, 161 F.3d 1190,
1194 (9th Cir. 1998).
[89] See also United States v.
Symington, 195 F.3d 1080, 1085 (9th Cir. 1999); United States v. Mullins, 992 F.2d 1472,
1478 (9th Cir. 1993);
United States v. Egbuniwe, 969 F.2d 757,
760 (9th Cir. 1992).
[90] See also United States v.
LaFleur, 971 F.2d 200, 206 (9th Cir. 1991)
(same standard); United States v. Hernandez, 952 F.2d
1110, 1117 (9th Cir. 1991)
(review is independent but reviewing court must “remain mindful of the trial
court’s conclusions”).
[92] United States v. Miguel, 111 F.3d 666,
673 (9th Cir. 1997);
United States v. Alexander, 48 F.3d
1477, 1484‑85 (9th Cir. 1995).
[93] See also United States v. Mills, 280 F.3d 915,
921 (9th Cir. 2002);
United States v. Saya, 247 F.3d 929, 935
(9th Cir. 2001) (as amended); but see United States v. Lopez-Martinez, 543
F.3d 509 n.4 (9th Cir. 2008)
(stating, “the denial of a motion for a new trial is typically reviewed for
abuse of discretion, [however] where the motion is based on juror misconduct … review is de novo.”); United States v. Keating, 147 F.3d 895,
899 (9th Cir. 1998)
(acknowledging abuse of discretion review, but noting that “where jurors are
exposed to extrinsic evidence, however, our review ‘is an independent one’”
when considering a new trial motion).
[94] See also United States v.
Elias, 269 F.3d 1003, 1020 (9th Cir. 2001)
(as amended); but see United States v. Martinez-Martinez, 369
F.3d 1076, 1082 (9th Cir. 2004)
(reviewing findings for manifest error or abuse of discretion).
[95] See also United States v.
Montgomery, 150 F.3d 983, 999 (9th Cir. 1998); United States v. Tisor, 96 F.3d 370, 377
(9th Cir. 1996)
(during trial); United States v. Fuentes‑Montijo, 68 F.3d 352, 354 (9th Cir. 1995).
[96] See also Montgomery, 150 F.3d at 999; United States v. Hernandez, 27 F.3d
1403, 1408 (9th Cir. 1994);
United States v. Guess, 745 F.2d 1286,
1288 (9th Cir. 1984)
(“[I]t is within the trial court’s discretion to replay tapes or have the court
reporter reread portions of testimony at the jury’s request during
deliberations.”).
[98] But see United States v. Noushfar, 78 F.3d 1442,
1445 (9th Cir. 1996),
amended by 140 F.3d 1244 (9th
Cir. 1998)
(allowing unplayed audio tapes into the jury room is structural error); see also United States v. Keating, 147 F.3d 895,
899 (9th Cir. 1998)
(grant of motion for new trial based on jurors’ improper exposure to extrinsic
evidence is subject to “independent” review).
[99] See also Arizona v. Johnson, 351 F.3d 988, 993 (9th Cir. 2003)
(direct appeal from trial conducted pursuant to 28 U.S.C. § 1442(a)(1)); United States v. Amlani, 111 F.3d 705,
716 (9th Cir. 1997).
[101] See also United States v.
McIver, 186 F.3d 1119, 1130-31 (9th Cir. 1999), overruled
on other grounds as recognized by United States v.
Pineda-Moreno, 688 F.3d 1087, 1091 (9th Cir. 2012); United States v. Stapleton, 293 F.3d
1111, 1118 n.3 (9th Cir. 2002);
Dorri, 15 F.3d at 891
(explaining plain error rule).
[102] See also United States v.
Tatoyan, 474 F.3d 1174, 1179 (9th Cir. 2007); United States v. Shipsey, 363 F.3d 962,
966 n.3 (9th Cir. 2004);
United States v. Si, 343 F.3d 1116, 1126 (9th Cir. 2003)
(supplemental instructions); United States v. Stapleton, 293 F.3d
1111, 1114 (9th Cir. 2002);
United States v. Amlani, 111 F.3d 705,
716 (9th Cir. 1997).
[103] See also United States v.
Cherer, 513 F.3d 1150, 1155 (9th Cir. 2008)
(“[T]he relevant inquiry is whether the instructions as a whole are misleading
or inadequate to guide the jury’s deliberation.”); Stapleton, 293 F.3d at 1114; United States v. Henderson, 243 F.3d
1168, 1170 (9th Cir. 2001)
(If the instructions misstate the offense, “we reverse a defendant’s conviction
unless the misstatement was harmless beyond a reasonable doubt.”); United States v. Romo-Romo, 246 F.3d 1272, 1274 (9th Cir. 2001) (“Whether a jury instruction misstates
elements of a statutory crime is a question of law reviewed de novo.”); United States v.
Knapp, 120 F.3d 928, 930 (9th Cir. 1997); see also United States v.
Vallejo, 237 F.3d 1008, 1024 (9th Cir. 2001), amended by 246 F.3d 1150 (9th
Cir. 2001)
(If “the instructions ‘fairly and adequately covered the elements of the
offense,’ we review the instruction’s precise formulation for abuse of
discretion.’”); United States v. Gergen, 172 F.3d 719,
724 (9th Cir. 1999)
(supplemental jury instruction).
[104] See also United States v. Solorzano-Rivera, 368
F.3d 1073, 1076 (9th Cir. 2004);
United States v. Martinez-Martinez, 369
F.3d 1076, 1083 (9th Cir. 2004); United States v.
Shipsey, 363 F.3d 962, 966 n.3 (9th Cir. 2004); United States v. Leyva, 282 F.3d 623,
625 (9th Cir. 2002)
(reviewing rejected instruction); see
also United States v. Iverson, 162 F.3d 1015,
1022 & n.5 (9th Cir. 1998)
(discussing preservation of issue); United States v.
Amlani, 111 F.3d 705, 716 n.5 (9th Cir. 1997)
(distinguishing allegation that instructions were potentially misleading).
[105] See also United States v. Naghani, 361 F.3d 1255,
1262 (9th Cir. 2004)
(“A lesser included offense instruction is proper where (1) the offense on
which the instruction is sought is a lesser included offense in the offense
charged and (2) the jury could rationally conclude that the defendant was
guilty of the lesser but not of the greater offense. We review the first step
de novo, and the second for abuse of discretion.”).
[106] See also United States v.
Hicks, 217 F.3d 1038, 1045 (9th Cir. 2000); United States v. Reed, 147 F.3d 1178,
1180 (9th Cir. 1998).
[107] United States v. Garcia-Guizar, 160 F.3d
511, 516, 522-23 (9th Cir. 1998) (noting plain error is a highly
prejudicial error affecting substantial rights); United States v. Klinger, 128 F.3d 705,
712 (9th Cir. 1997)
(noting plain error is “‘error that is so clear-cut, so obvious, a competent
district judge should be able to avoid it without benefit of objection’”); United States v. Lacy, 119 F.3d 742, 749
(9th Cir. 1997)
(noting plain error does not require reversal unless the error seriously
affected the fairness, integrity, or public reputation of the judicial
proceeding).
[108] See also United States v. Steele,
298F.3d 906, 909 (9th Cir. 2002); United States v. Daas, 198 F.3d 1167, 1179 (9th Cir. 1999)
(modified charge); United States v. Nelson, 137 F.3d 1094,
1109 (9th Cir. 1998).
[109] See also United States v.
Steele, 298 F.3d 906, 910 (9th Cir. 2002); United States v. Howell, 231 F.3d 615,
627 (9th Cir. 2000);
United States v. Sarkisian, 197 F.3d
966, 978 (9th Cir. 1999)
(reviewing for an abuse of discretion the court’s refusal to ask requested voir
dire questions); see also United States v. Sherwood, 98F.3d 402,
407 (9th Cir. 1996) (defendant has a right to be present at voir dire sidebars,
but waives the right if not expressed).
[110] See also United States v.
Martinez-Salazar, 528 U.S. 304, 307 (2000)
(reversing Ninth Circuit’s ruling that the erroneous refusal to excuse a juror
for cause that forces defendant to use peremptory challenge to exclude juror
violates defendant’s Fifth Amendment due process rights and requires automatic
reversal).
[111] See United States
v. Vartanian, 476 F.3d 1095, 1098 (9th Cir. 2007); United States v. Beard, 161 F.3d 1190,
1193 (9th Cir. 1998);
United States v. McFarland, 34 F.3d 1508, 1511 (9th Cir. 1994); see also United States v. Gonzalez, 214
F.3d 1109, 1112 (9th Cir. 2000)
(noting also that implied bias presents a mixed issue of law and fact reviewed
de novo).
[112] See United States v.
Long, 301 F.3d 1095, 1101 (9th Cir. 2002)
(noting presence of biased jury can never be harmless error); United States v. Miguel, 111 F.3d 666, 673 (9th Cir. 1997); United States v. Alexander, 48 F.3d
1477, 1484-85 (9th Cir. 1995);
see also United States v. Martinez-Salazar, 528
U.S. 304, 307 (2000)
(no constitutional right violated if the defendant uses a peremptory challenge
to cure an erroneous refusal by the court to remove the juror for cause).
[113] See also Hernandez v. New York, 500 U.S. 352,
364-65 (1991);
United States v. Murillo, 288 F.3d 1126,
1135 (9th Cir. 2002)
(“The trial court’s findings regarding purposeful discrimination in jury
selection are entitled to ‘great deference’ and will not be set aside unless
clearly erroneous.”) (internal quotation marks omitted).
[114] See United States v.
Gaudin, 28 F.3d 943, 951 (9th Cir. 1994)
(en banc).
[116] See Johnson v. United
States, 520 U.S. 461, 465 (1997)
(materiality is an element of perjury).
[117] See also United States v.
Alferahin, 433 F.3d 1148, 1154-56 (9th Cir. 2006) (discussing materiality specific to
denaturalization); United States v. Service Deli, Inc., 151
F.3d 938, 941 (9th Cir. 1998)
(discussing various formulations of materiality).
[118] See also United States v.
Taylor, 66 F.3d 254, 255 (9th Cir. 1995)
(per curiam) (false claims against the United States); see also United States v. Wells, 519 U.S. 482,
489-95 (1997)
(false statements to federally insured bank).
[119] See also United States v.
Scholl, 166 F.3d 964, 980-81 (9th Cir. 1999) (“[W]here
the defendant failed to object to the materiality error, ‘[t]o warrant reversal
in a case where a Gaudin-type error
is made, the error must seriously affect the fairness, integrity or public
reputation of judicial proceedings.’” (second alternation in original, internal
quotation marks omitted)); United States v. Knapp, 120 F.3d 928,
932 (9th Cir. 1997);
United States v. Nash, 115 F.3d 1431, 1437 (9th Cir. 1997).
[120] See
United States v. Freeman, 498 F.3d 893,
901 (9th Cir. 2007)
(combination lay and expert witness); United States v. Salcido, 506 F.3d 729,
732 (9th Cir. 2007);
United States v. Sutcliffe, 505 F.3d
944, 958-59 (9th Cir. 2007)
(not limiting purpose of evidence); United
States v. Hanna, 293 F.3d1080, 1085
(9th Cir. 2002) (officers as experts); United States v. Alatorre, 222 F.3d
1098, 1100 (9th Cir. 2000)
(customs officer as expert, discussing Daubert,
Joiner, and Kumho Tire); United States v. Cordoba, 104 F.3d 225,
229 (9th Cir. 1997)
(drug trafficker modus operandi); United States v. Gillespie, 852 F.2d
475, 480 (9th Cir. 1988)
(reversing district court’s admission of criminal profiler testimony).
[121] See United States v. Seschillie, 310 F.3d
1208, 1211-12 (9th Cir. 2002)
(shooting expert); United States v. Johnson, 297 F.3d 845,
862 (9th Cir. 2002)
(sentencing guideline expert); United States v. Campos, 217 F.3d 707,
710 (9th Cir. 2000)
(polygraph); United States v. Benavidez-Benavidez,
217 F.3d 720, 723 (9th Cir. 2000)
(polygraph); United States v. Scholl, 166 F.3d 964,
971-72 (9th Cir. 1999)
(accounting expert); United States v. Morales, 108 F.3d 1031,
1034 & n.1 (9th Cir. 1997)
(en banc) (reversing court’s exclusion of bookkeeping expert, noting review is
for an abuse of discretion, not “manifest error”).
[122] See also United States v.
Nelson, 137 F.3d 1094, 1101 n.2 (9th Cir. 1998); United States v. Labansat, 94 F.3d 527,
530 (9th Cir. 1996).
[123] See also United States v.
Martinez, 657 F.3d 811, 818-19 (9th Cir. 2011); United States v. Matsumaru, 244 F.3d
1092, 1101 (9th Cir. 2001)
(allowing lay testimony); United States v. Holmes, 229 F.3d 782,
788 (9th Cir. 2000)
(same); United States v. Von Willie, 59 F.3d
922, 929 (9th Cir. 1995)
(noting this court has characterized the standard of review in different ways).
[124] United States v. Rendon-Duarte, 490 F.3d
1142, 1145 (9th Cir. 2007);
United States v. Plancarte-Alvarez, 366
F.3d 1058, 1062 (9thCir. 2004);
United States v. Smith, 282 F.3d 758,
768 (9th Cir. 2002);
United States v. Romero, 282 F.3d 683,
688 (9th Cir. 2002);
United States v. Carrasco, 257
F.3d1045, 1048 (9th Cir. 2001); United States v. Chea, 231 F.3d 531, 534
(9th Cir. 2000);
United States v. Howell, 231 F.3d 615,
628 (9th Cir. 2000);
United States v. Hicks, 217 F.3d 1038,
1046 (9th Cir. 2000).
[125] See also United States v.
Phillips, 149 F.3d 1026, 1031 (9th Cir. 1998)
(Armed Career Criminal Act); United States v. Young, 988 F.2d 1002,
1003 (9th Cir. 1993)
(same).
[126] See also United v. Martin, 278 F.3d 988, 999-1000 (9th Cir. 2002)
(explaining elements of privilege); United States v. Wiseman, 274 F.3d 1235,
1244 (9th Cir. 2001);
Ralls v. United States, 52 F.3d 223, 225
(9th Cir. 1995).
[127] See also United States v.
Bauer, 132 F.3d 504, 507 (9th Cir. 1997); United States v. Blackman, 72 F.3d 1418, 1423 (9th Cir. 1995)
(describing scope of privilege as a mixed question of fact and law).
[128] See also United States v.
Ortland, 109 F.3d 539, 543 (9th Cir. 1997); United States v. Plache, 913 F.2d 1375, 1379 (9th Cir. 1990).
[129] See also United States v.
Hernandez, 476 F.3d 791, 795-96 (9th Cir. 2007); United States v. Beckman, 298 F.3d788,
795 (9th Cir. 2002); United States v. Bushyhead, 270 F.3d
905, 911 (9th Cir. 2001);
United States v. Velarde-Gomez, 269 F.3d
1023, 1028 (9th Cir. 2001)
(en banc) (defendant’s lack of a physical or emotional reaction).
[130] See also United States v.
Garcia-Guizar, 160 F.3d 511, 522 (9th Cir. 1998); United States v. Atcheson, 94 F.3d 1237,
1246 (9th Cir. 1996);
see also Cook v. Schriro, 538 F.3d 1000, 1019 (9th Cir. 2008)
(habeas).
[131] United States v. Allen, 341 F.3d 870,
886 (9th Cir. 2003);
United States v. LeMay, 260 F.3d 1018,
1024 (9th Cir. 2001)
(discussing constitutional import of Rule 403); United States v. Leon-Reyes, 177 F.3d
816, 821 (9th Cir. 1999);
United States v. Neill, 166 F.3d 943,
946 (9th Cir. 1999)
(finding harmless error); United States v. Hicks, 103 F.3d 837,
844 (9th Cir. 1996),
overruled in part on other grounds by United States v.
W.R. Grace, 526 F.3d 499, 513 (9th Cir. 2008)
(en banc); see also Old Chief v.
United States, 519 U.S. 172, 183 n.7 (1997)
(“On appellate review of a Rule
403 decision, a defendant must establish abuse of discretion, a standard
not satisfied by a mere showing of some alternative means of proof that the
prosecution in its broad discretion chose not to rely on.”).
[132] See also United States v. Murillo, 288
F.3d1126, 1140 (9th Cir. 2002).
[133] See also United States v.
Sarkisian, 197 F.3d 966, 988 (9th Cir. 1999) (misconduct
to be viewed in entirety of the trial); United States v.
Scholl, 166 F.3d 964, 974 (9th Cir. 1999); United States v. Peterson, 140 F.3d 819,
821 (9th Cir. 1998);
United States v. Nelson, 137 F.3d 1094,
1106 (9th Cir. 1998)
(reciting defendant’s burden as “showing that it is ‘more probable than not
that the misconduct materially affected the verdict’”); United States v. Sayetsitty, 107 F.3d
1405, 1408 (9th Cir. 1997).
[134] United States v. Shaw, 829 F.2d 714,
716-718 (9th Cir. 1987);
see also United States v. Hinton, 31 F.3d 817,
824 (9th Cir. 1994)
(harmless error standard).
[135] See also United States v.
Parker, 241 F.3d 1114, 1119 (9th Cir. 2001); United States v. Leon-Reyes, 177 F.3d
816, 821 (9thCir. 1999);
United States v. Garcia-Guizar, 160 F.3d
511, 516, 521 (9th Cir. 1998);
United States v. Rudberg, 122 F.3d 1199,
1206 (9th Cir. 1997).
[136] See also United States v.
Bridges, 344 F.3d 1010, 1014 (9th Cir. 2003); United States v. Lazarevich, 147 F.3d
1061, 1065 (9th Cir. 1998);
United States v. Edmonds, 103 F.3d 822,
825 (9th Cir. 1996);
United States v. Wills, 88 F.3d 704, 711
(9th Cir. 1996);
United States v. Dudden, 65 F.3d 1461,
1466 (9th Cir. 1995).
[137] See also United States v. De Rosa,
783F.2d 1401, 1404 (9th Cir. 1986); United States v. Sears, Roebuck & Co.,
719 F.2d 1386, 1392 n.9 (9th Cir. 1983).
[139] See Fed. R. Evid. 611(a); Geders v. United States, 425 U.S. 80, 86
(1976);
United States v. Arbelaez, 719 F.2d
1453, 1460 (9th Cir. 1993).
[143] See also United States v.
Sutcliffe, 505 F.3d 944, 957-58 (9thCir. 2007); United States v. Martin, 278 F.3d 988,
1005 (9th Cir. 2002);
United States v. Silver, 245 F.3d 1075,
1078 (9th Cir. 2001);
United States
v. Wilkerson, 208 F.3d 794, 797 (9th Cir. 2000); United States
v. Scholl, 166 F.3d 964, 977 (9th Cir. 1999); United States
v. Hernandez, 109 F.3d 1450, 1453 (9th Cir. 1997); United States
v. Eshkol, 108 F.3d 1025, 1030 (9th Cir. 1997); see
also United States v. $292,888.04 in U.S. Currency, 54 F.3d 564, 566 (9th Cir. 1995)
(civil forfeiture action).
[144] See also United States v.
Springer, 51 F.3d 861, 864 n.1 (9th Cir. 1995); United States v.
Bosch, 951 F.2d 1546, 1548 (9th Cir. 1991).
[145] See also United States v.
Finley, 301 F.3d 1000, 1007 (9th Cir. 2002)
(expert testimony); United States v. Hicks, 103 F.3d 837,
843 (9th Cir. 1996),
overruled in part on other grounds by United States v.
W.R. Grace, 526 F.3d 499, 503 (9th Cir. 2008)
(en banc); United States v. Easter, 66 F.3d 1018,
1020 (9th Cir. 1995);
United States v. Kallin, 50 F.3d 689,
693 (9th Cir. 1995)
(Rule 402); United States v. Vaandering, 50 F.3d
696, 704 (9th Cir. 1995).
[146] See also United States v.
Hardy, 289 F.3d 608, 612 (9th Cir. 2002); United States v. Rrapi, 175 F.3d 742,
748 (9th Cir. 1999)
(Rule 404(b)); United States v. Keiser, 57 F.3d 847,
852 n.6 (9th Cir. 1995).
[148] See, e.g., United States v.
Jordan, 291 F.3d 1091, 1100 (9th Cir. 2002)
(no abuse of discretion); United States v. Hobbs, 31 F.3d 918, 923
(9th Cir. 1994)
(court abused its discretion).
[150] See United States v.
Wunsch, 84 F.3d 1110, 1114 (9th Cir. 1996)
(noting apparent unresolved question of what standard of review applies to
sanctions for violation of local rules); United States v. Lopez, 4 F.3d 1455,
1458 (9th Cir. 1993)
(“We review de novo the district court’s conclusion that specific conduct
violated court rules.”).
[151] See United States v.
Cedano-Arellano, 332 F.3d 568, 571 (9th Cir. 2003)
(de novo review of interpretation of discovery rule); United States v. Fernandez, 231 F.3d
1240, 1245 (9th Cir. 2000).
[152] See also United States v.
Jennings, 960 F.2d 1488, 1490 (9th Cir. 1992)
(“We review de novo the question whether the district court had any legal basis
for its discovery order. If it did, we
review for an abuse of discretion the court’s choice of a sanction for a
violation of its order.”); United States v. Mandel, 914 F.2d 1215,
1218 (9th Cir. 1990);
United States v. Iglesias, 881 F.2d
1519, 1523 (9th Cir. 1989).
[153] See also United States v.
Shryock, 342 F.3d 948, 983 (9th Cir. 2003); United States v. Amlani, 111 F.3d 705,
712 (9th Cir. 1997);
United States v. de Cruz, 82 F.3d 856, 866 (9th Cir. 1996).
[154] See United States v.
Shryock, 342 F.3d 948, 974 (9th Cir. 2003)
(limiting audience seating).
[155] See also Morgan v. Bunnell, 24 F.3d 49, 51 (9th Cir. 1994)
(per curiam); Jones v. Meyer, 899 F.2d 883, 884 (9th
Cir. 1990).
[156] See also United States v.
Laurins, 857 F.2d 529, 538 (9th Cir. 1988); United States v. Wellington, 754 F.2d
1457, 1469 (9th Cir. 1985).
[157] See,
e.g., United States v. Geston, 299 F.3d 1130,
1137 (9th Cir. 2002)
(limiting cross-examination); United States v. Pearson, 274 F.3d 1225,
1233 (9th Cir. 2001)
(disallowing leading questions); United States
v. Archdale, 229 F.3d 861, 865 (9th Cir. 2000)
(permitting leading questions); United States
v. Hay, 122 F.3d 1233, 1235 (9th Cir. 1997) (limiting defendant’s
testimony); United States
v. Rutgard, 116 F.3d 1270, 1279 (9th Cir. 1997)
(imposing time restraints on examination of witnesses).
[158] See also United States v.
Leasure, 122 F.3d 837, 840 (9th Cir. 1997); United States v. Carper, 24 F.3d 1157,
1162 (9th Cir. 1994)
(finding error not harmless), superseded
by rule as stated in United States v.
Reyes-Solosa, 761 F.3d 972, 975 n.2 (9th Cir. 2014).
[159] See also United States v.
Sarno, 73 F.3d 1470, 1503-04 (9th Cir. 1995)
(reversing sentence).
[160] See also United States v. Cope, 527 F.3d 944, 949 (9th
Cir. 2008);United States
v. Speelman, 431 F.3d 1226, 1229 (9th Cir. 2005); United States v. Bynum, 362 F.3d 574,
583 (9th Cir. 2004);
United States v. Joyce, 357 F.3d 921,
922 (9th Cir. 2004);
United States v. Shimoda, 334 F.3d 846,
848 (9th Cir. 2003);
United States v. Nunez, 223 F.3d 956,
958 (9th Cir. 2000)
(“‘Generally, courts will enforce a defendant’s waiver of his right to appeal
if (1) the language of the waiver encompasses the defendant’s right to appeal
on the grounds claimed on appeal, and (2) the waiver is knowingly and
voluntarily made.’”); United States v. Phillips, 174 F.3d
1074, 1075 (9th Cir. 1999)
(holding that no waiver existed due to ambiguous plea agreement); United States v. Buchanan, 59 F.3d 914,
918 (9th Cir. 1995)
(plea agreement waiver not controlling in light of court’s oral assurances of
appeal).
[161] See also United States v.
Garza-Sanchez, 217 F.3d 806, 808 (9th Cir. 2000)
(deportation order); United States v. Portillo-Cano, 192 F.3d
1246, 1249 (9th Cir. 1999)
(finding no waiver, vacating conviction); United States v. Aguilar-Muniz, 156 F.3d
974, 976 (9th Cir. 1998);
United States v. Zink, 107 F.3d 716, 717
(9th Cir. 1997)
(finding no waiver).
[162] See also United States v.
Valle-Montalbo, 474 F.3d 1197, 1199 (9th Cir. 2007); United States v. Covian-Sandoval, 462
F.3d 1090, 1093 (9th Cir. 2006)
(applying plain error); United States v. Pina-Jaime, 332 F.3d
609, 611 (9th Cir. 2003);
United States v. Martin, 278 F.3d 988,
1005 (9th Cir. 2002)
(Apprendi does not apply to criminal history).
[164] See also United States v.
Sua, 307 F.3d 1150, 1154 (9th Cir. 2002); United States v. Buckland, 289 F.3d 558,
563 (9th Cir. 2002)
(en banc) (finding any error harmless); United States v. Rodriguez, 285 F.3d
759, 763 (9th Cir. 2002)
(vacating sentence); United States v. Johansson, 249 F.3d
848, 861 (9th Cir. 2001)
(no error if fact used to increase sentence within statutory maximum).
[165] See United States v.
Sherburne, 506 F.3d 1187, 1190 (9th Cir. 2007)
(reversing reward); United States v. Braunstein, 281 F.3d
982, 992 (9th Cir. 2002).
[166] See United States v.
Chapman, 524 F.3d 1073, 1089-90 (9th Cir. 2008)
(construing “prevailing party”); United States v. Danielson, 325 F.3d
1054, 1076 (9th Cir. 2003);
United States v. Campbell, 291 F.3d
1169, 1170 (9th Cir. 2002);
United States v. Tucor Int’l, Inc., 238
F.3d 1171, 1175 (9th Cir. 2001)
(“The district court abuses its discretion when it makes an error of law, or
bases its conclusion on a clearly erroneous finding of fact.”) (citation
omitted); United States v. Lindberg, 220 F.3d
1120, 1124 (9th Cir. 2000)
(comparing EAJA standard).
[167] See United States v.
Barnes, 324 F.3d 135, 140 (3d Cir. 2003)
(“plenary”); United States v. Chilingirian, 280 F.3d
704, 709 (6th Cir. 2001)
(abuse of discretion); United States v. Mercedes, 254 F.3d 433,
435 (2d Cir. 2001)
(per curiam) (clear error); United States v. Eaken, 995 F.2d 740,
741 (7th Cir. 1993)
(de novo); United States v. Bayko, 774 F.2d 516,
519 (1st Cir. 1985)
(“independent”).
[168] See United States v.
Zakhor, 58 F.3d 464, 465 (9th Cir. 1995)
(challenging application and constitutionality of Sentencing Reform Act).
[169] See United States v.
Aguirre, 214 F.3d 1122, 1124 (9th Cir. 2000) (vacating resentence);
United States v. Barragan-Mendoza, 174
F.3d 1024, 1027 (9th Cir. 1999)
(vacating resentence).
[170] See also
United States v. Sprague, 135 F.3d 1301,
1304 (9th Cir. 1998);
United States v. Townsend, 98 F.3d 510,
512 (9th Cir. 1996) (per curiam).
[171] United States
v. Sager, 227 F.3d 1138, 1147 (9th Cir. 2000); United States
v. Scrivener, 189 F.3d 944, 953 (9th Cir. 1999); see also United States v.
Ganoe, 538 F.3d 1117, 1128 (9th
Cir. 2008).
[172] See also United States v. $46,588.00 in U.S.
Currency and $20.00 in Canadian Currency, 103 F.3d 902, 903 (9th Cir. 1996); United States v. Kim, 94 F.3d 1247, 1249
(9th Cir. 1996);
United States v. 1980 Lear Jet, 38 F.3d
398, 400 (9th Cir. 1994)
(reversing).
[173] See,
e.g., United States v. Real Property Located at 22 Santa Barbara
Drive, 264 F.3d 860, 868 (9th Cir. 2001); United States v. $129,727.00 U.S. Currency, 129 F.3d 486, 489 (9th Cir. 1997); United States v. $405,089.23 U.S. Currency, 122 F.3d 1285, 1289 (9th Cir. 1997)
(reversing probable cause); United States v. One 1986 Ford Pickup,
56 F.3d 1181, 1186 (9th Cir. 1995)
(reviewing certificate of reasonable cause); United States v. U.S. Currency, $30,060,
39 F.3d 1039, 1041 (9th Cir. 1994).
[174] See
also, e.g., United States v.
Washington, 462 F.3d 1124, 1136 (9th
Cir. 2006)
(prosecutorial misconduct); United States v. Hagege, 437 F.3d 943,
959-60 (9th Cir. 2006);
United States v. Allen, 341 F.3d 870,
891 (9th Cir. 2003)
(prejudicial testimony); United States v. McCormac, 309 F.3d 623,
626 (9th Cir. 2002)
(contempt); United States v. Steele, 298 F.3d 906,
910 (9th Cir. 2002)
(prosecutorial misconduct); United States v. Mills, 280 F.3d 915,
921 (9th Cir. 2002)
(juror misconduct); United States v. Sarkisian, 197 F.3d
966, 981 (9th Cir. 1999)
(extraneous information to jury); United States v. Ramirez, 176 F.3d 1179,
1183 (9th Cir. 1999)
(misstatements at closing); United States v. Randall, 162 F.3d 557,
559 (9th Cir. 1998)
(cautionary instruction); United States v. Nelson, 137 F.3d 1094,
1106 (9th Cir. 1998)
(improper questions); United States v. English, 92 F.3d 909,
912 (9th Cir. 1996)
(emotional testimony); United States v. Wills, 88 F.3d 704, 712
(9th Cir. 1996)
(statement about polygraph); United States v. Frederick, 78 F.3d
1370, 1375 (9th Cir. 1996)
(prejudicial testimony); United States v. George, 56 F.3d 1078,
1082 (9th Cir. 1995)
(inadmissible hearsay).
[175] See,
e.g., United States v. Mack, 362 F.3d 597, 600
(9th Cir. 2004)
(reversing for a new trial); United States v. Hursh, 217 F.3d 761,
769 (9th Cir. 2000);
United States v. Jackson, 209 F.3d 1103,
1106 (9th Cir. 2000)
(28 U.S.C. § 2255 “motion”); United States v. Endicott, 869 F.2d 452,
454 (9th Cir. 1989)
(“[T]he defendant carries a ‘significant burden’ to show that the district
court abused its discretion in denying a new trial.”).
[176] See also United States v.
Waggoner, 339 F.3d 915, 919 (9th Cir. 2003); United States v.
Sarno, 73 F.3d 1470, 1507 (9th Cir. 1995); United States v. Bischel, 61 F.3d 1429,
1436 (9th Cir. 1995);
United States v. Reyes Alvarado, 963
F.2d 1184, 1188 (9th Cir. 1992).
[177] See also United States v.
Murillo, 288 F.3d 1126, 1140 (9th Cir. 2002)
(finding error harmless beyond reasonable doubt); United States v. Peterson, 140 F.3d 819,
821 (9th Cir. 1998)
(prosecutorial misconduct, reversing for new trial); United States v. Sayetsitty, 107 F.3d
1405, 1408 (9th Cir. 1997).
[178] See also United States v.
Mills, 280 F.3d 915, 921 (9th Cir. 2002); United States v. Saya, 247 F.3d 929, 935
(9th Cir. 2001);
United States v. George, 56 F.3d 1078,
1083 (9th Cir. 1995).
[179] See also Benny v. United
States Parole Comm’n, 295 F.3d 977, 981 (9th Cir. 2002)
(noting review is limited to “whether the Commission exceeded its authority or
acted so arbitrarily as to violate due process”).
[180] See also United States v. Laughlin, 933 F.2d 786, 788 (9th Cir. 1991); United States
v. Tham, 884 F.2d 1262, 1263 (9th Cir. 1989).
[181] See also United States v.
Parrott, 992 F.2d 914, 920 (9th Cir. 1993)
(noting review is de novo if defendant challenges the court’s authority to
impose condition); United States v. Terrigno, 838 F.2d 371,
374 (9th Cir. 1988)
(noting district court has “broad discretion in setting probation conditions”).
[182] See United States v.
Cabaccang, 481 F.3d 1176, 1182 (9th Cir. 2007); United States v. Penna, 319 F.3d 509,
511 (9th Cir. 2003);
United States v. Aguirre, 214 F.3d 1122,
1124 (9th Cir. 2000)
(vacating sentence); United States v. Ruiz-Alvarez, 211 F.3d
1181, 1184 (9th Cir. 2000);
United States v. Barragan-Mendoza, 174
F.3d 1024, 1027 (9th Cir. 1999)
(vacating sentence).
[183] See United States v.
Ruiz-Alvarez, 211 F.3d 1181, 1185 (9th Cir. 2000); United States v. McClain, 133 F.3d 1191,
1193 (9th Cir. 1998)
(habeas).
[185] See also United States v.
Culps, 300 F.3d 1069, 1082 (9th Cir. 2002)
(discussing certain cases where we may limit the discretion of the district
court to consider new evidence).
[186] See also United States v.
Doe, 488 F.3d 1154, 1160-61 (9th Cir. 2007); United States v. Berger, 473 F.3d 1080,
1104 (9th. Cir. 2007);
United States v. Cienfuegos, 462 F.3d
1160, 1162 (9th Cir. 2006);
United States v. Phillips, 367 F.3d 846,
854 (9th Cir. 2004);
United States v. De La Fuente, 353 F.3d
766, 772 (9th Cir. 2003);
United States v. Riley, 335 F.3d 919,
931 (9th Cir. 2003);
United States v. Grice, 319 F.3d 1174,
1176 (9th Cir. 2003) (per curiam); United States v. Pizzichiello, 272 F.3d
1232, 1240 (9th Cir. 2001).
[187] See also United States v.
De La Fuente, 353 F.3d 766, 769 (9th Cir. 2003); United States v. Zink, 107 F.3d 716, 718
(9th Cir. 1997);
see also United States v.
Fu Sheng Ko, 620 F.3d 1158, 1162 (9th Cir. 2010)
(reviewing valuation method for plain error where not challenged in district
court).
[188] See United States v.
Berger, 473 F.3d 1080, 1104 (9th Cir. 2007); United States v. Laney, 189 F.3d 954,
966 (9th Cir. 1999);
United States v. Miguel, 49 F.3d 505,
511 (9th Cir. 1995).
[189] See also United States v.
Najjor, 255 F.3d 979, 984 (9th Cir. 2001)
(remand for recalculation of restitution); United States v. Matsumaru, 244 F.3d
1092, 1108 (9th Cir. 2001)
(same); United States v. Laney, 189 F.3d 954,
966 (9th Cir. 1999);
United States v. Johnson, 132 F.3d 1279,
1286 (9th Cir. 1997);
United States v. Sablan, 92 F.3d 865,
870 (9th Cir. 1996)
(reversing for recalculation of restitution).
[190] See also United States v.
Cienfuegos, 462 F.3d 1160, 1162 (9th Cir. 2006); United States v. De La Fuente, 353 F.3d
766, 772 (9th Cir. 2003);
United States v. Pizzichiello, 272 F.3d
1232, 1240 (9th Cir. 2001);
United States v. Allen, 153 F.3d 1037,
1044-45 (9th Cir. 1998).
[191] See also United States v.
Phillips, 367 F.3d 846, 854 (9th Cir. 2004); United States v. Cliatt, 338 F.3d 1089,
1090 (9th Cir. 2003);
United States v. Grice, 319 F.3d 1174,
1176 (9th Cir. 2003) (per curiam); United States v. Pizzichiello, 272 F.3d
1232, 1240 (9th Cir. 2001);
United States v. Follet, 269 F.3d 996,
998 (9th Cir. 2001)
(reversing); United States v. Laney, 189 F.3d 954,
964-65 (9th Cir. 1999).
[192] See also United States v. Saeteurn, 504 F.3d 1175, 1178 (9th Cir. 2007); United States v. Baldrich, 471 F.3d 1110, 1112 (9th Cir. 2006); United States
v. Herrera-Rojas, 243 F.3d 1139, 1142 (9th Cir. 2001) (vacating sentence); United States v. Standard, 207 F.3d
1136, 1140 (9th Cir. 2000)
(vacating sentence); United States v. Havier, 155 F.3d 1090,
1092 (9th Cir. 1998)
(examining requirements of Rule 32.1 and vacating sentence); United States v. Karterman, 60 F.3d 576,
583 (9th Cir. 1995);
see also United States
v. Ruiz,
257 F.3d 1030, 1031 & 1033 (9th Cir. 2001) (en banc) (clarifying that “fair
and just” standard applies to Rule 32(e) rather than “manifest injustice” test).
[193] See also United States v.
Houston, 217 F.3d 1204, 1206-07 (9th Cir. 2000); United States v. Stein, 127 F.3d 777,
780 (9th Cir. 1997).
[194] Prior to Carty, in the Ninth Circuit there was conflicting case law regarding the proper standard of reviewing the application of the Guidelines. See United States v. Staten, 466 F.3d 708, 713 n.3 (2006) (noting split in authority). Carty conducts a review of the district court’s application of the Guidelines under the appellate rubric set forth in the opinion, and overruled any prior case to the extent inconsistent with Rita or Gall. See Carty, 520 F.3d at 991 n.5, and 991-96; but see United States v. Yip, 592 F.3d 1035, 1038 (9th Cir. 2010) (noting a split in authority but declining to resolve it); United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (same).
[195] Examples of cases noting the intracircuit conflict
include: United States v. McEnry, 659 F.3d 893,
896 n.5 (9th Cir. 2011)
(“[t]here is ‘an intracircuit conflict as to whether the standard of review for
application of the Guidelines to the
facts is de novo or only for abuse of discretion,’”) (quoting United States v. Laurienti, 611 F.3d
530, 552 (9th Cir. 2010)
(emphasis added)); United States v. Bernardo, 818 F.3d 983,
985 (9th Cir. 2016)
(not resolving the conflict because the court would reach the same conclusion
under either standard); United States v. Sullivan, 797 F.3d 623,
641 n.13 (9th Cir. 2015), cert. denied,
136 S. Ct. 2408
(2016)
(noting intracircuit conflict regarding standard of review for the application
of the Guidelines to the facts).
[196] See United States v.
Ellsworth, 456 F.3d 1146, 1149 (9th
Cir. 2006); United States
v. Leasure, 319 F.3d 1092, 1096 (9th Cir. 2003);
United States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir. 2000); United States
v. Johnson, 130 F.3d 1352, 1354 (9th Cir. 1997); see also United States v.
Booker, 543 U.S. 220 (2005)
(holding portions of the Guidelines unconstitutional).
[197] See United States v.
Leon H., 365 F.3d 750, 752 (9th Cir. 2004); United States
v. Barajas-Avalos, 377 F.3d 1040, 1060 (9th Cir. 2004); United
States v. Mezas de Jesus, 217 F.3d 638, 642 (9th Cir. 2000); United States
v. Estrada‑Plata, 57 F.3d 757, 762 (9th Cir. 1995).
[198] See United States v.
Penna, 319 F.3d 509, 511 (9th Cir. 2003); United States v. Aguirre, 214 F.3d 1122, 1124 (9th
Cir. 2000); United States
v. Barragan-Mendoza, 174 F.3d 1024, 1027 (9th Cir. 1999).
[200] The
Prosecutorial Remedies and Other Tools to End the Exploitation of Children
Today Act (PROTECT) (April 30, 2003) amended 18 U.S.C. § 3742(e) and
provided for de novo review of the district court’s decision to depart from the
applicable sentencing guideline. See United States v.
Barragan-Espinoza, 350 F.3d 978, 981 (9th Cir. 2003). PROTECT thus overruled in part the holding of
Koon v. United
States, 518 U.S. 81, 99 (1996)
(holding district court’s decision to depart is reviewed for an abuse of discretion),
and applied to all pending cases. See
United States v.
Philips, 367 F.3d 846, 860 (9th Cir. 2004)
(holding PROTECT “applies to cases pending on appeal at the time of its
enactment”); United States
v. Daychild, 357 F.3d 1082, 1105-06 (9th Cir. 2004); see
also United States v.
Leon, 341 F.3d 928, 931 (9th Cir. 2003)
(noting change in standard of review but declining to decide whether PROTECT
applied to cases pending on appeal).
Prior to PROTECT, a district court’s decision to depart was reviewed
under an abuse of discretion standard. See,
e.g., Barragan-Espinoza, 350 F.3d at 981; Leon, 341
F.3d at 931;
United States
v. Thompson, 315 F.3d 1071, 1074 (9th Cir. 2002). PROTECT applied only to review of departures
and not to a district court’s refusal to depart downward. See United States v. Linn, 362 F.3d 1261, 1262 (9th Cir. 2004)
(per curiam) (holding appellate court lacks jurisdiction to review district
court’s discretionary refusal to depart downward).
[201] See Barragan-Espinoza, 350 F.3d at 981
(explaining that PROTECT did not alter this standard of review); United States
v. Working, 287 F.3d 801, 806 (9th Cir. 2002) (noting extent of
departure must be “reasonable”); United States
v. Rodriguez-Cruz, 255 F.3d 1054, 1060 (9th Cir. 2001)
(noting extent of departure cannot be “grossly disproportionate to objective
criteria”).
[202] See United States v. Nielsen, 371 F.3d 574,
582 (9th Cir. 2004)
(acceptance of responsibility); United States v. Martinez-Martinez, 369
F.3d 1076, 1088-89 (9th Cir. 2004)
(acceptance of responsibility); United States v. Cordova Barajas, 360
F.3d 1037, 1042 (9th Cir. 2004)
(minor participant); United States v. Smith, 282 F.3d 758,
772 (9th Cir. 2002)
(minor or minimal role).
[203] See United States v. Sager, 227 F.3d 1138,
1147 (9th Cir. 2000);
United States v. Scrivener, 189 F.3d
944, 953 (9th Cir. 1999);
United States v. Ladum, 141 F.3d 1328,
1344 (9th Cir. 1998).
[204] See also
United States v. Hernandez-Valdovinos,
352 F.3d 1243, 1246 (9th Cir. 2003)
(§ 2L1.2); United States v. Ramirez, 347 F.3d 792,
797 (9th Cir. 2003)
(§ 4A1.1(c)); United States v. Gallaher, 275 F.3d 784,
790 (9th Cir. 2001)
(Armed Career Criminal Act).
[205] See United States v. Figueroa-Ocampo, 494
F.3d 1211, 1213 (9th Cir. 2007);
United States v. Espinoza-Cano, 456 F.3d
1126, 1130 (9th Cir. 2006),
superseded by regulation on other grounds;
United States v. Sanchez-Sanchez, 333
F.3d 1065, 1067 (9th Cir. 2003);
United States v. Hernandez-Castellanos,
287 F.3d 876, 878 (9th Cir. 2002).
[206] See United States v. Gastelum-Almeida, 298
F.3d 1167, 1174 (9th Cir. 2002);
United States v. Seesing, 234 F.3d 456,
458 (9th Cir. 2001);
United States v. Boos, 127 F.3d 1207,
1209 (9th Cir. 1997).
[207] See United States v. Smith, 330 F.3d 1209, 1212 (9th Cir. 2003); United States v. Tighe, 266 F.3d 1187,
1190 (9th Cir. 2001);
United States v. Reyes-Pacheco, 248 F.3d
942, 945 (9th Cir. 2001);
United States v. Tam, 240 F.3d 797, 803
(9th Cir. 2001);
United States v. Carter, 219 F.3d 863,
866 (9th Cir. 2000);
United States v. Hankey, 203 F.3d 1160,
1166 (9th Cir. 2000).
[208] See United States v. Berger, 473 F.3d 1080,
1104 (9th Cir. 2007);
United States v. Gordon, 393 F.3d 1044,
1051 (9th Cir. 2004);
United States v. Phillips, 367 F.3d 846,
854 (9th Cir. 2004);
United States v. De La Fuente, 353 F.3d
766, 772 (9th Cir. 2003);
United States v. Riley, 335 F.3d 919,
931 (9th Cir. 2003);
United States v. Grice, 319 F.3d 1174,
1176 (9th Cir. 2003)
(per curiam); United States v. Pizzichiello, 272 F.3d
1232, 1240 (9th Cir. 2001).
[209] See also Berger, 473 F.3d at 1104; Gordon, 393 F.3d at 1051; De La Fuente, 353 F.3d at 772; Pizzichiello, 272 F.3d at 1240; United States v. Allen, 153 F.3d 1037,
1044-45 (9th Cir. 1998).
[210] See also Berger, 473 F.3d at 1104; Gordon, 393 F.3d at 1051; Phillips, 367 F.3d at 854; United States v. Cliatt, 338 F.3d 1089,
1090 (9th Cir. 2003);
Grice, 319 F.3d at 1176; Pizzichiello, 272 F.3d at 1240; United States v. Follet, 269 F.3d 996,
999 (9th Cir. 2001);
United States v. Laney, 189 F.3d 954,
964-65 (9th Cir. 1999).
[211] See also United States v.
Phillips, 367 F.3d 846, 854 (9th Cir. 2004); Laney, 189 F.3d at 966; United States v. Johnson, 132 F.3d 1279,
1286 (9th Cir. 1997);
United States v. Zink, 107 F.3d 716, 718
(9th Cir. 1997);
United States v. Sablan, 92 F.3d 865,
870 (9th Cir. 1996).
[212] See also United States v. Saeteurn, 504 F.3d 1175, 1178 (9th Cir. 2007); United States v. Baldrich, 471 F.3d
1110, 1112 (9th Cir. 2006);
United States v. Herrera-Rojas, 243 F.3d
1139, 1142 (9th Cir. 2001);
United States v. Standard, 207 F.3d
1136, 1140 (9th Cir. 2000);
United States v. Havier, 155 F.3d 1090,
1092 (9th Cir. 1998);
see also United States v. Ruiz,
257 F.3d 1030, 1031 (9th Cir. 2001) (en banc) (clarifying that “fair and just”
standard applies to Rule 32(e) rather than “manifest injustice” test).
[213] See also United States v.
Houston, 217 F.3d 1204, 1206-07 (9th Cir. 2000); United States v. Stein, 127 F.3d 777,
780 (9th Cir. 1997).
[214] See also United States v.
Stanton, 501 F.3d 1093, 1100 (9th Cir. 2007); United States v. Lopez, 477 F.3d 1110,
1113 (9th Cir. 2007);
United States v. Shipsey, 363 F.3d 962,
971 n.8 (9th Cir. 2004);
see also Chein v. Shumsky, 373 F.3d 978, 982 (9th
Cir. 2004)
(en banc) (habeas).
[216] See United States v. Doe, 136 F.3d 631, 636
(9th Cir. 1998);
United States v. Mayberry, 913 F.2d 719,
721 (9th Cir. 1990).
[217] See United States v. Carranza, 289 F.3d 634, 641 (9th Cir. 2002); United States v. Tucker, 133 F.3d 1208,
1214 (9th Cir. 1998);
United States v. Hernandez, 105 F.3d
1330, 1332 (9th Cir. 1997);
United States v. Bahena‑Cardenas,
70 F.3d 1071, 1072 (9th Cir. 1995).
[218] United States
v. Lowry, 512 F.3d 1194, 1198 n.3 (9th Cir. 2008); United States
v. Gonzales, 528 F.3d 1207, 1210 (9th Cir. 2008); United States v. Ross, 338 F.3d 1054,
1057 (9th Cir. 2003);
United States v. Franklin, 321 F.3d
1231, 1239 (9th Cir. 2003);
United States v. Weber, 320 F.3d 1047,
1050-51 (9th Cir. 2003);
United States v. Alarcon-Simi, 300 F.3d
1172, 1176 (9th Cir. 2002);
see also United States v. Vizcarra‑Martinez,
66 F.3d 1006, 1010 (9th Cir. 1995)
(noting reluctance to affirm conviction when there is insufficient evidence to
sustain the conviction regardless of standard of review to be applied).
[219] See United States v. Weber, 451 F.3d 552,
557 (9th Cir. 2006);
United States v. Williams, 356 F.3d
1045, 1052 (9th Cir. 2004)
(“wide latitude”); United States v. Rearden, 349 F.3d 608,
618 (9th Cir. 2003);
United States v. Lopez, 258 F.3d 1053,
1056 (9th Cir. 2001);
United States v. Bee, 162 F.3d 1232,
1234 (9th Cir. 1998).
[220] See United States v. Stoterau, 524 F.3d 988,
1002 (9th Cir. 2008);
United States v. Cope, 527 F.3d 944, 949
(9th Cir. 2008);
United States v. Betts, 511 F.3d 872,
874 (9th Cir. 2007);
United States v. Jeremiah, 493 F.3d
1042, 1046 (9th Cir. 2007);
Weber, 451 F.3d at 557 (9th Cir. 2006); Williams, 356 F.3d at 1052; United States v. Britt, 332 F.3d 1229,
1231 (9th Cir. 2003);
United States v. T.M., 330 F.3d 1235,
1239-40 (9th Cir. 2003)
(noting discretion is not unfettered); United States v. Gallaher, 275 F.3d 784,
793 (9th Cir. 2001).
[221] See United States v. Anderson, 519 F.3d
1021, 1022 (9th Cir. 2008);
United States v. Tinoso, 327 F.3d 864,
865 (9th Cir. 2003);
United States v. Cade, 236 F.3d 463, 465
(9th Cir. 2000);
United States v. Lomayoama, 86 F.3d 142,
146 (9th Cir. 1996).
[222] See United States v. Sullivan, 504 F.3d 969,
971 (9th Cir. 2007);
United States v. Vargas-Amaya, 389 F.3d
901, 903 (9th Cir. 2004)
(reviewing de novo jurisdiction to revoke supervised release under 18 U.S.C. §
3583(i)); United States v. Morales-Alejo, 193 F.3d
1102, 1104 (9th Cir. 1999);
United States v. Malandrini, 177 F.3d
771, 772 (9th Cir. 1999).
[223] See United States v. Perez, 526 F.3d 543,
547 (9th Cir. 2008);
United States v. Verduzco, 330 F.3d
1182, 1184 (9th Cir. 2003);
United States v. Turner, 312 F.3d 1137,
1142 (9th Cir. 2002);
United States v. Musa, 220 F.3d 1096,
1100 (9th Cir. 2000);
United States v. Daniel, 209 F.3d 1091,
1094
(9th Cir.), amended by 216 F.3d 1201 (9th
Cir. 2000).
[224] See also
United States v. Rrapi, 175 F.3d 742,
746 (9th Cir. 1999)
(English translation of Albanian wiretap tape recordings).
[225] See United States v. Abonce-Barrera, 257
F.3d 959, 963 (9th Cir. 2001);
Rrapi, 175 F.3d at 746; United States v. Tisor, 96 F.3d 370, 377
(9th Cir. 1996);
United States v. Armijo, 5 F.3d 1229,
1234 (9th Cir. 1993).
[226] See United States v. Montgomery, 150 F.3d
983, 999 (9th Cir. 1998);
Tisor, 96 F.3d at 377; United States v. Fuentes-Montijo, 68
F.3d 352, 354 (9th Cir. 1995);
United States v. Pena-Espinoza, 47 F.3d
356, 359 (9th Cir. 1995);
United States v. Hernandez, 27 F.3d
1403, 1408 (9th Cir. 1994)
(“We review a decision to allow the jury to reread transcripts in the jury room
for an abuse of discretion.”).
[227] See also Parle v. Runnels, 505 F.3d 922, 926 (9th Cir. 2007); Hunter v. Ayers, 336 F.3d 1007, 1011
(9th Cir. 2003);
Benny v. United States Parole Comm., 295
F.3d 977, 981 (9th Cir. 2002).
[228] See also Miranda v. Reno, 238 F.3d 1156, 1158 (9th Cir. 2001); Nakaranurack v. United States, 231 F.3d
568, 570 (9th Cir. 2000).
[229] See
also Puri v. Gonzales, 464 F.3d 1038, 1040 (9th Cir. 2006); Johnson v. Reilly, 349 F.3d 1149, 1153
(9th Cir. 2003);
Dearinger ex rel. Volkova v. Reno, 232
F.3d 1042, 1044 (9th Cir. 2000);
Barapind v. Reno, 225 F.3d 1100, 1109-10
(9th Cir. 2000).
[230] See,
e.g., United States v. Sandoval‑Lopez,
409 F.3d 1193, 1195 & n.4 (9th Cir. 2005) (denial); United States v. Rodrigues, 347 F.3d
818, 823 (9th Cir. 2003)
(denial); United States v. Skurdal, 341 F.3d 921,
925 (9th Cir. 2003)
(denial); United States v. Day, 285 F.3d 1167,
1169 (9th Cir. 2002)
(denial).
[231] See
United States v. Martin, 226 F.3d 1042,
1045 (9th Cir. 2000)
(reconsideration); see also United States v. Thiele, 314 F.3d 399,
401-02 (9th Cir. 2002)
(noting limitations of § 2255).
[232] See also United States v.
Battles, 362 F.3d 1195, 1196 (9th Cir. 2004); United States v. Alaimalo, 313 F.3d
1188, 1191 (9th Cir. 2002);
United States v. Christakis, 238 F.3d
1164, 1168 (9th Cir. 2001);
United States v. Guess, 203 F.3d 1143,
1145 (9th Cir. 2000);
Sanchez v. United States, 50 F.3d 1448,
1452 (9th Cir. 1995).
[233] See also Sandoval‑Lopez, 409 F.3d at 1195 & n.4; Rodrigues, 347 F.3d at 823; United States v. Leonti, 326 F.3d 1111,
1116 (9th Cir. 2003);
Christakis, 238 F.3d at 1168; Chacon-Palomares, 208 F.3d at 1158-59.
[234] See,
e.g., Beardslee v. Woodford, 358 F.3d 560, 568
(9th Cir. 2004)
(denying); Nunes v. Mueller, 350 F.3d 1045, 1051
(9th Cir. 2003)
(granting); Gill v. Ayers, 342 F.3d 911, 917 (9th
Cir. 2003)
(denying); Alcala v. Woodford, 334 F.3d 862, 868
(9th Cir. 2003)
(granting).
[235] See also Vang v. Nevada, 329 F.3d 1069, 1072 (9th Cir. 2003); Zichko v. Idaho, 247 F.3d 1015, 1019
(9th Cir. 2001);
Hoffman v. Arave, 236 F.3d 523, 529 (9th
Cir. 2001).
[236] See also Alcala v. Woodford, 334 F.3d 862, 868
(9th Cir. 2003);
McClure v. Thompson, 323 F.3d 1233, 1240
(9th Cir. 2003)
(noting standard is “significantly deferential”).
[237] See also Mayfield v.
Woodford, 270 F.3d 915, 922 (9th Cir. 2001)
(en banc) (noting pre-AEDPA standards of review apply when petition was filed
prior to effective date); see also Smith v. Robbins, 528 U.S. 259, 268 n.3
(2000)
(noting AEDPA does not apply to petitions filed before the effective date of
April 24, 1996).
[238] See also Doe v. Busby, 661 F.3d 1001, 1010 (9th
Cir. 2010);
Parle v. Runnels, 505 F.3d 922, 926 (9th
Cir. 2007);
Arnold v. Runnels, 421 F.3d 859, 862
(9th Cir. 2005);
Ramirez v. Castro, 365 F.3d 755, 762
(9th Cir. 2004)
(reciting and applying standard); Chia v. Cambra, 360 F.3d 997, 1002 (9th
Cir. 2004)
(explaining “unreasonable application” prong); Vlasak v. Superior Court, 329 F.3d 683,
687 (9th Cir. 2003)
(explaining “contrary to” prong); Lewis v. Lewis, 321 F.3d 824, 829 (9th
Cir. 2003)
(noting “highly deferential standard”).
[239] See also Plumlee v. Masto, 512 F.3d 1204, 1209 (9th Cir. 2008); Bockting v. Bayer, 505 F.3d 973, 978
(9th Cir. 2007);
Stenson v. Lambert, 504 F.3d 873, 881
(9th Cir. 2007).
[240] See
also Weaver v. Thompson, 197 F.3d 359, 363
(9th Cir. 1999)
(noting trial judge made no factual determinations entitled to deference under 28
U.S.C. § 2254(e)(1) and that other factual findings were reviewed for clear
error).
[241] See also
Calderon v. Coleman, 525 U.S. 141, 147
(1998)
(noting not all constitutional errors entitle petitioner to relief; rather the
“court must find that the error, in the whole context of the particular case,
had a substantial and injurious effect or influence on the jury’s verdict.”); California v. Roy, 519 U.S. 2, 5-6
(1996)
(per curiam) (rejecting Ninth Circuit’s “modification” of the Brecht
standard); Inthavong v. Lamarque, 420 F.3d 1055,
1059 (9th Cir. 2005)
(holding that the Brecht standard survived the AEDPA and Mitchell v. Esparza, 540 U.S. 12 (2003),
despite contrary views in other circuits); Kennedy v. Lockyer, 379 F.3d 1041,
1053-54 (9th Cir. 2004)
(noting that Brecht standard applies to both post-AEDPA and pre-AEDPA
cases); Gill v. Ayers, 342 F.3d 911, 921 (9th
Cir. 2003)
(reciting and explaining Brecht standard); Evanchyk v. Stewart, 340 F.3d 933, 941
n. 3 (9th Cir. 2003)
(noting circuit has “not used always used the same language in describing the
harmless error standard in habeas cases”).
[242] Bragg v. Galaza, 242 F.3d 1082, 1089-90 (9th
Cir.) (noting AEDPA precludes remand for an evidentiary hearing), amended by
253 F.3d 1150 (9th
Cir. 2001);
Downs v. Hoyt, 232 F.3d 1031, 1041 (9th
Cir. 2000)
(noting AEDPA limits district court’s discretion); Baja v. Ducharme, 187 F.3d 1075, 1077 (9th
Cir. 1999)
(noting AEDPA “substantially restricts the district court’s discretion to grant
an evidentiary hearing”).
[243] See also Beaty v. Stewart, 303 F.3d 975, 993 (9th Cir. 2002); Karis v. Calderon, 283 F.3d 1117,
1126-27 & n.1 (9th Cir. 2002);
Laboa v. Calderon, 224 F.3d 972, 981 n.7
(9th Cir. 2000).
[244] Bragg v.
Galza, 242 F.3d 1082, 1089-90 (9th Cir.) (noting AEDPA precludes remand for an
evidentiary hearing), amended by 253 F.3d 1150 (9th
Cir. 2001);
Downs v. Hoyt, 232 F.3d 1031, 1041 (9th
Cir. 2000)
(noting AEDPA limits district court’s discretion); Baja v. Ducharme, 187 F.3d 1075, 1077 (9th
Cir. 1999)
(noting AEDPA “substantially restricts the district court’s discretion to grant
an evidentiary hearing”).
[245] See,
e.g., Guillory v. Roe, 329 F.3d 1015, 1017
(9th Cir. 2003)
(§ 2254); Ferguson v. Palmateer, 321 F.3d 820, 822 (9th
Cir.) (§ 2254); Lott v. Mueller, 304 F.3d 918, 922 (9th
Cir. 2002)
(§ 2254); Hasan v. Galaza, 254 F.3d 1150, 1153
(9th Cir. 2001)
(§ 2254).