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
k. 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.
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.
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).
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).
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).
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]
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.
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).
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).
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.
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).
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).
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”). 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).
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.
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).
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).
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).
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).
“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)).
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).
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).
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.
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). 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).
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.
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”).
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).
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.
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).
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)