II. CRIMINAL PROCEEDINGS

A. Introduction

1. Findings of Fact and Conclusions of Law

The district court’s findings of fact are reviewed for clear error. See, e.g., United States v. Olsen, 21 F.4th 1036, 1040 (9th Cir. 2022) (per curiam) (Speedy Trial Act); 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).[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. Fomichev, 899 F.3d 766, 770 (9th Cir.), opinion amended on denial of reh’g, 909 F.3d 1078 (9th Cir. 2018) (marital communications privilege); United States v. Laursen, 847 F.3d 1026, 1031 (9th Cir. 2017) (conclusions of law following bench trial); 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. Lopez, 998 F.3d 431, 434 (9th Cir. 2021) (18 U.S.C. § 3553(f)(1)); United States v. Perez, 962 F.3d 420, 439 (9th Cir. 2020) (reviewing district court’s determination of a statute’s extraterritorial reach), cert. denied sub nom. Iraheta v. United States, 141 S. Ct. 1443 (2021); United States v. Valdez, 911 F.3d 960, 962 (9th Cir. 2018) (federal forfeiture statutes); United States v. Rivera, 527 F.3d 891, 908 (9th Cir. 2008) (interpreting the Sentencing Guidelines).[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. George, 949 F.3d 1181, 1184 (9th Cir. 2020) (“We review the district court’s interpretation of the Sentencing Guidelines de novo, its factual findings for clear error, and its application of the Guidelines to the facts for abuse of discretion.”); United States v. Lloyd, 807 F.3d 1128, 1176 (9th Cir. 2015) (same).[4]

The district court’s interpretation of the federal rules is reviewed de novo. See, e.g., United States v. Rodriguez, 971 F.3d 1005, 1017 (9th Cir. 2020) (Federal Rules of Evidence); United States v. Lindsay, 931 F.3d 852, 859 (9th Cir. 2019) (same); United States v. Haines, 918 F.3d 694, 697 (9th Cir. 2019) (same); United States v. Lo, 839 F.3d 777, 783 (9th Cir. 2016); United States v. Alvarez-Moreno, 657 F.3d 896, 900 n.2 (9th Cir. 2011) (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. Davis, 332 F.3d 1163, 1167 (9th Cir. 2003) (motion to suppress); 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.

2. Harmless Error

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, 1014–16 (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). See also Weaver v. Massachusetts, 137 S. Ct. 1899, 1907 (2017) (discussing Chapman); United States v. Walters, 309 F.3d 589, 593 (9th Cir. 2002).

“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.” United States v. Lopez, 913 F.3d 807, 825 (9th Cir. 2019); United States v. Job, 871 F.3d 852, 865 (9th Cir. 2017) (explaining the court must be convinced the improperly admitted evidence did not contribute to the verdict) 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).

“Evidentiary errors are not harmless unless it is more probable than not that the erroneous admission of the evidence did not affect the jury’s verdict.” United States v. Charley, 1 F.4th 637, 651 (9th Cir. 2021) (internal quotation marks and citation omitted).

“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. Job, 871 F.3d 852, 865 (9th Cir. 2017) (internal quotation marks and citation omitted). See also 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”).

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 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); Kirkpatrick v. Chappell, 950 F.3d 1118, 1128 (9th Cir. 2020) (as amended) (applying Brecht to section 2254 habeas petition); McKinney v. Ryan, 813 F.3d 798, 822 (9th Cir. 2015) (“The harmless-error standard on habeas review provides that “relief must be granted” if the error “had substantial and injurious effect or influence in determining the jury’s verdict.” (internal quotation marks and citation omitted)); Ybarra v. McDaniel, 656 F.3d 984, 995 (9th Cir. 2011); United States v. Montalvo, 331 F.3d 1052, 1057–58 (9th Cir. 2003) (applying Brecht to section 2255 habeas petition).

3. Plain Error

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); United States v. Williams, 5 F.4th 973, 978 (9th Cir. 2021) (reviewing for plain error where defendant did not object at sentencing); United States v. Herrera-Rivera, 832 F.3d 1166, 1172 (9th Cir. 2016); 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 Williams, 5 F.4th at 978 (sentencing); United States v. Becerra, 939 F.3d 995, 999 (9th Cir. 2019) (jury instructions); United States v. Depue, 912 F.3d 1227, 1232 (9th Cir. 2019) (en banc) (sentencing); United States v. Walter-Eze, 869 F.3d 891, 911 (9th Cir. 2017) (jury instructions);[5] see also United States v. Perez, 116 F.3d 840, 845–46 (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; see also United States v. Lopez, 4 F.4th 706, 719 (9th Cir. 2021) (reviewing forfeited challenges to the sufficiency of the evidence for plain error and concluding there was no error).

4. Structural Error

Structural errors are errors that affect the “entire conduct of the [proceeding] from beginning to end.” … The “highly exceptional” category of structural errors includes, for example, the “denial of counsel of choice, denial of self-representation, denial of a public trial, and failure to convey to a jury that guilt must be proved beyond a reasonable doubt.”

Greer v. United States, 141 S. Ct. 2090, 2100 (2021) (quoting Arizona v. Fulminante, 499 U.S. 279, 309 (1991) and United States v. Davila, 569 U.S. 597, 611, 133 S. Ct. 2139, 186 L.Ed.2d 139 (2013)).

The purpose of the structural error doctrine is to ensure insistence on certain basic, constitutional guarantees that should define the framework of any criminal trial. Thus, the defining feature of a structural error is that it affects the framework within which the trial proceeds, rather than being simply an error in the trial process itself.

Weaver v. Massachusetts, 137 S. Ct. 1899, 1907–08 (2017) (internal quotation marks, emphasis, and citations omitted).

A structural error “defies analysis by harmless error standards.” Id. (quotation marks and citation omitted). A structural error requires automatic reversal on appeal. See Greer, 141 S. Ct. at 2099; Glebe v. Frost, 574 U.S. 21, 23 (2014) (“Only the rare type of error—in general, one that infect[s] the entire trial process and necessarily render[s] [it] fundamentally unfair—requires automatic reversal.” (internal quotation marks and citation omitted)); 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); see also United States v. Chavez-Cuevas, 862 F.3d 729, 734 (9th Cir. 2017).

“[A] constitutional error is either structural or it is not.” [Neder v. United States, 527 U.S. 1, 14 (1999)]. “An error can count as structural even if the error does not lead to fundamental unfairness in every case.” [Weaver v. Massachusetts, 137 S. Ct. 1899, 1908 (2017)].

United States v. Becerra, 939 F.3d 995, 1003 (9th Cir. 2019).

B. Pretrial Decisions in Criminal Cases

1. Appointment of Expert Witness

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. Valencia-Lopez, 971 F.3d 891, 897 (9th Cir. 2020) (reviewing decision to admit expert testimony); United States v. Spangler, 810 F.3d 702, 706 (9th Cir. 2016) (same).[6]

2. Bail

Factual findings underlying a district court’s pretrial 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); 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). The question of whether the district court’s factual findings justify pretrial detention is also reviewed de novo. See Santos-Flores, 794 F.3d at 1090; Hir, 517 F.3d 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 [the court] 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). The conclusions based on factual findings in a bail hearing present a mixed question of fact and law. See Santos-Flores, 794 F.3d at 1090. 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.

3. Bill of Particulars

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).

4. Brady Violations

The court reviews de novo whether a Brady violation has occurred. See United States v. Moalin, 973 F.3d 977, 1001–02 (9th Cir. 2020); United States v. Cano, 934 F.3d 1002, 1022 n.14 (9th Cir. 2019).

Challenges to convictions based on alleged Brady violations are reviewed de novo. See United States v. Liew, 856 F.3d 585, 596 (9th Cir. 2017); 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. Miller, 953 F.3d 1095, 1107 (9th Cir. 2020) (noting the court would review the district court’s denial of a motion for a new trial based on a Brady violation de novo, but would review the district court’s denial of a motion for a new trial based on newly discovered evidence for abuse of discretion); 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).

5. Competency to Stand Trial

A district court’s determination that a defendant is competent to stand trial is reviewed for clear error. See United States v. Turner, 897 F.3d 1084, 1105 (9th Cir. 2018); 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).

The court of appeals reviews the district court’s failure to sua sponte hold a competency hearing for plain error. See Turner, 897 F.3d at 1107.

6. Confessions

This court reviews de novo the voluntariness of a confession. See United States v. Price, 980 F.3d 1211, 1226 (9th Cir. 2019) (as amended Nov. 27, 2020), cert. denied, 142 S. Ct. 129 (2021); United States v. Heller, 551 F.3d 1108, 1112 (9th Cir. 2009).[7] The district court’s factual findings underlying its determination of voluntariness are reviewed for clear error. See Price, 980 F.3d at 1226; Heller, 551 F.3d at 1112; United States v. Haswood, 350 F.3d 1024, 1027 (9th Cir. 2003); 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).

7. Confidential Informants

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 appropriate standard of review for the district court’s decision to allow a confidential informant to testify in disguise is abuse of discretion.” United States v. de Jesus-Casteneda, 705 F.3d 1117, 1119 (9th Cir. 2013).

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).

8. Consolidation of Counts

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).

9. Continuances

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”). The court reviews the district court’s failure to grant a continuance for abuse of discretion, even where, no motion for continuance was made. See United States v. Audette, 923 F.3d 1227, 1240 (9th Cir. 2019).

“A court does not abuse its discretion unless the denial of a continuance was ‘arbitrary or unreasonable.’” Audette, 923 F.3d at 1240; see also Wilkes, 662 F.3d at 543; United States v. Rivera-Guerrero, 426 F.3d 1130, 1138 (9th Cir. 2005) (“Reversal is required if ‘after carefully evaluating all the relevant factors,’ we conclude that “the denial was arbitrary or unreasonable.” (quoting United States v. Flynt, 756 F.2d 1352, 1358 (9th Cir. 1985))). “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. 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).

“An arbitrary denial of a continuance is subject to the harmless error test.” United States v. Kloehn, 620 F.3d 1122, 1130 (9th Cir. 2010).

10. Defenses

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. 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).[8]

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 jury instructions adequately cover the defendant’s proffered defense is also reviewed de novo. See United States v. Chi, 936 F.3d 888, 893 (9th Cir.), amended sub nom. United States v. Heon-Cheol Chi, 942 F.3d 1159 (9th Cir. 2019); United States v. Kaplan, 836 F.3d 1199, 1214 (9th Cir. 2016); 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).

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).

The district court’s violation of a defendant’s Sixth Amendment right to choose his or her defense is a structural error, and the proper remedy is a new trial.” United States v. Read, 918 F.3d 712, 721 (9th Cir. 2019) (reviewing de novo defendant’s claim that the district court violated his Sixth Amendment right to present a defense of his own choosing by terminating self-representation and permitting counsel to make an insanity defense, and holding that a district court commits reversible error by permitting defense counsel to present a defense of insanity over a competent defendant’s clear rejection of that defense.).

See also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases, 42. Preclusion of Proffered Defense.

11. Discovery

A district court’s discovery rulings are reviewed for an abuse of discretion. See United States v. Cano, 934 F.3d 1002, 1023 (9th Cir. 2019) (discovery rulings are generally reviewed for abuse of discretion); United States v. Sellers, 906 F.3d 848, 851–52 (9th Cir. 2018) (reviewing district court’s determination that the defendant failed to make the necessary showing to be entitled to discovery on a claim of selective prosecution for abuse of discretion.); 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). The court necessarily abuses its discretion when it applies the wrong legal standard. See Sellers, 906 F.3d at 852.

The district court’s interpretation of the discovery rules is reviewed de novo. See Cano, 934 F.3d at 1023 n.15. Whether the district court applied the correct discovery standard is a legal question that is also subject to de novo review. See Sellers, 906 F.3d at 851.

“To reverse a conviction for a discovery violation, [the court] 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.

Whether the government violated its discovery obligations is reviewed de novo. See United States v. Obagi, 965 F.3d 993, 997 (9th Cir. 2020); United States v. Stinson, 647 F.3d 1196, 1208 (9th Cir. 2011).

a. Depositions

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. Moalin, 973 F.3d 977, 1005 (9th Cir. 2020); 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).

b. Jencks Act

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. Robertson, 895 F.3d 1206, 1216 (9th Cir. 2018); 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).

c. Sanctions

Discovery sanctions are generally reviewed for an abuse of discretion. See United States v. Finley, 301 F.3d 1000, 1007 (9th Cir. 2002); 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. 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. Cardenas-Mendoza, 579 F.3d 1024, 1031 (9th Cir. 2009); 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).

Where the district court has sanctioned the government for its discovery violations, the choice of sanctions is reviewed for abuse of discretion. See United States v. Obagi, 965 F.3d 993, 997 (9th Cir. 2020); United States v. Garrison, 888 F.3d 1057, 1064 (9th Cir. 2018).

12. Discriminatory (Selective) Prosecution

“To establish a claim of selective prosecution, a defendant must show both discriminatory effect and discriminatory purpose.” United States v. Sellers, 906 F.3d 848, 851 (9th Cir. 2018). 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 district court’s determination that the defendant failed to make the necessary showing to be entitled to discovery on a claim of selective prosecution is reviewed for abuse of discretion. See Sellers, 906 F.3d at 851–52; 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 necessarily abuses its discretion when it applies the wrong legal standard. See Sellers, 906 F.3d at 852.

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)).

13. Dismissals

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. Sineneng-Smith, 982 F.3d 766, 773 (9th Cir. 2020) cert. denied, 142 S. Ct. 117 (2021); United States v. Miller, 953 F.3d 1095, 1105 (9th Cir. 2020) (“We review the district court’s denial of Miller’s motion to dismiss on Due Process grounds de novo, and we review for abuse of discretion the district court’s decision not to dismiss the indictment under its supervisory powers.”), cert. denied, 141 S. Ct. 1085 (2021); 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 United States v. Olsen, 21 F.4th 1036, 1040 (9th Cir. 2022) (per curiam) (Speedy Trial Act); Miller, 953 F.3d at 1105 (due process); United States v. Lindsay, 931 F.3d 852, 859 (9th Cir. 2019); 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).[9]

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., Sineneng-Smith, 982 F.3d 766, 773; 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 Olsen, 21 F.4th at 1040; 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 court reviews the denial of the motion to dismiss on Speedy Trial Act grounds de novo and reviews findings of fact for clear error.” United States v. Henry, 984 F.3d 1343, 1349–50 (9th Cir. 2021), cert. denied, 142 S. Ct. 376 (2021); see also United States v. Olsen, 21 F.4th 1036, 1040 (9th Cir. 2022) (per curiam); United States v. King, 483 F.3d 969, 972 n.3 (9th Cir. 2007); United States v. Gorman, 314 F.3d 1105, 1110 (9th Cir. 2002). 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).

14. Evidentiary Hearings

A district court’s decision whether to conduct an evidentiary hearing is generally reviewed for an abuse of discretion. See Staten v. Davis, 962 F.3d 487, 494 (9th Cir. 2020) (habeas), cert. denied, 141 S. Ct. 1502 (2021); 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).[10]

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).

15. Ex Parte Hearings

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).

In United States v. Carpenter, 923 F.3d 1172, 1178 (9th Cir. 2019), the court reviewed for abuse of discretion the district court’s decision not to seal or proceed ex parte with the defendant’s offer of proof, where the district court balanced the interests of the public and the party seeking to keep secret certain judicial records.

16. Ex Post Facto

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).

17. Extradition

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). 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). Likewise, interpretations of extradition treaties are reviewed de novo. See United States v. Soto-Barraza, 947 F.3d 1111, 1117 (9th Cir. 2020), cert. denied, 141 S. Ct. 599 (2020); 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 Soto-Barraza, 947 F.3d at 1117; 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). The court also reviews de novo whether extradition of a defendant satisfies the doctrines of dual criminality and specialty. See Soto-Barraza, 947 F.3d at 1117; Anderson, 472 F.3d at 666 ; United States v. Khan, 993 F.2d 1368, 1372 (9th Cir. 1993). 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 United States v. Knotek, 925 F.3d 1118, 1124 (9th Cir. 2019); 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).

18. Faretta Requests (Waive Counsel)

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. Audette, 923 F.3d 1227, 1234 (9th Cir. 2019); 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 ) (discussing defendant’s right to represent himself).

Factual findings supporting the district court’s decision are reviewed for clear error. See United States v. Telles, 18 F.4th 290, 302 (9th Cir. 2021) (as amended); Audette, 923 F.3d at 1234 (“A district court’s finding that a defendant’s waiver was unequivocal is a finding of fact reviewed for clear error.”); 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).

The court has “ ‘not yet clarified whether denial of a Faretta request is reviewed de novo or for abuse of discretion.’ ” Telles, 18 F.4th at 302 (quoting United States v. Kaczynski, 239 F.3d 1108, 1116 (9th Cir. 2001)) (holding that the claim failed under either standard of review because the court agreed with the district court’s conclusion that Telles exercised his right to represent himself as a tactic to delay trial proceedings).

See also II. Criminal Proceedings, B. Pretrial Decisions in Criminal Cases , 50. Representation, e. Pro Se Representation.

19. Franks Hearing

The district court’s refusal to conduct a Franks hearing is reviewed de novo. See United States v. Norris, 942 F.3d 902, 907 (9th Cir. 2019); 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”).

20. Fugitive Status

A district court’s “ultimate” conclusion whether a defendant is a fugitive or is “fleeing from justice” is reviewed de novo. See United States v. $671,160.00 in U.S. Currency, 730 F.3d 1051, 1055 (9th Cir. 2013) (reviewing the legal applicability of the fugitive disentitlement doctine de novo); 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 $671,160.00 in U.S. Currency, 730 F.3d at 1055 (reviewing district court’s decision to order disentitlement for abuse of discretion); 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); Parretti v. United States, 143 F.3d 508, 510 (9th Cir. 1998) (en banc) (dismissing appeal).

21. Grand Juries

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). 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 Investigation, 966 F.3d 991, 994 (9th Cir. 2020), cert. denied, 142 S. Ct. 308 (2021); 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).

A district court’s denial of a motion to quash a grand jury subpoena and its order of contempt sanctions is reviewed for an abuse of discretion. See In re Grand Jury Investigation, 966 F.3d at 994; In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d 1179, 1183 (9th Cir. 2017). Underlying factual findings are reviewed for clear error. See In re Grand Jury Investigation, 966 F.3d at 994; In re Grand Jury Subpoena, No. 16-03-217, 875 F.3d at 1183.

22. Guilty Pleas

a. Rule 11

The adequacy of a Rule 11 plea hearing is reviewed de novo. See United States v. Peterson, 995 F.3d 1061, 1064 (9th Cir. 2021) (reviewing de novo the sufficiency of a Rule 11 plea colloquy); United States v. Alvarez, 835 F.3d 1180, 1188 (9th Cir. 2016); 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, the court’s review is limited to plain error. See United States v. Ferguson, 8 F.4th 1143, 1145 (9th Cir. 2021); 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); 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 ).

b. Voluntariness

The voluntariness of a guilty plea is subject to de novo review. See United States v. Seng Chen Yong, 926 F.3d 582, 589 (9th Cir. 2019) (reviewing de novo a district court’s finding as to whether a plea is knowing and voluntary); United States v. Forrester, 616 F.3d 929, 934 (9th Cir. 2010)</