United States v. Duane Ehmer

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 17-30242

Plaintiff-Appellee, D.C. No. 3:16-cr-
00051-BR-10
v.

DUANE LEO EHMER, OPINION

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 17-30246

Plaintiff-Appellee, D.C. No. 3:16-cr-
00051-BR-22
v.

DARRYL WILLIAM THORN,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-30025

Plaintiff-Appellee, D.C. No. 3:16-cr-
00051-BR-26
2 USA V. EHMER

v.

JAKE RYAN,

Defendant-Appellant.

UNITED STATES OF AMERICA, No. 18-30042

Plaintiff-Appellee, D.C. No. 3:16-cr-
00051-BR-9
v.

JASON PATRICK,

Defendant-Appellant.

No. 19-30077
UNITED STATES OF AMERICA,
D.C. No. 3:16-cr-
Plaintiff-Appellee,
00051-BR-9
D.C. No. 3:16-cr-
v.
00051-BR-10
D.C. No. 3:16-cr-
JASON PATRICK; DUANE LEO
00051-BR-22
EHMER; DARRYL WILLIAM
D.C. No. 3:16-cr-
THORN; JAKE RYAN,
00051-BR-26
Defendants-Appellants.
 USA V. EHMER 3

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding

Argued and Submitted June 1, 2020
Submission Vacated June 4, 2020
Resubmitted September 13, 2023
Portland, Oregon

Filed December 7, 2023

Before: Marsha S. Berzon, Daniel P. Collins, and
Lawrence VanDyke, Circuit Judges.

Opinion by Judge Collins;
Partial Concurrence by Judge Berzon

SUMMARY *

Criminal Law

The panel affirmed four defendants’ convictions and
sentences for various offenses arising from their
participation in the January 2016 occupation of the Malheur
National Wildlife Refuge in eastern Oregon, and remanded
with respect to sealing and discovery issues.
The panel held the district court properly added to the
formal record under Fed. R. App. P. 10(e)(2)(B) certain

*
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
4 USA V. EHMER

email exchanges between the district judge and all counsel
concerning jury selection procedures.
Appellants contended that the district court erred in
excusing individual jurors without soliciting or receiving
any input from the parties or counsel concerning those
individual decisions.
The panel agreed with the Government that pre-
screening and excusing potential jurors “for hardship” is an
administrative task that “cannot reasonably be considered a
part of the criminal trial” and may therefore be conducted by
court or its staff—even in person—without the participation
of the parties or their lawyers. Accordingly, to the extent
that Appellants challenge the district court’s sua sponte and
ex parte excusal of jurors on hardship grounds, the panel
rejected that contention.
The panel rejected as foreclosed by United States v.
Bordallo, 857 F.2d 519 (9th Cir. 1988), the Government’s
argument that exclusion of other jurors for cause likewise
falls within the permissible scope of routine administrative
pre-screening that can be undertaken by the court acting sua
sponte and ex parte and without hearing at all from the
parties or their counsel. The panel wrote that by making
case-specific determinations of potential bias based on
prospective jurors’ written comments about this specific
case, the district court went well beyond the sort of
administrative screening that may be conducted on an ex
parte basis under United States v. Calaway, 524 F.2d 609
(9th Cir. 1975). The district court’s case-specific excusal of
particular jurors for cause constituted a “critical stage” of the
proceedings with respect to which, at the very least,
Appellants had the right to counsel and the right to be
heard. The panel wrote that nothing in the Jury Selection
 USA V. EHMER 5

and Service Act or the District of Oregon’s Juror
Management Plan authorized the district court’s actions
here, much less confirms that they may be deemed to be
purely administrative for constitutional purposes.
Because Appellants agreed to a procedure whereby the
jurors would initially be screened based solely on their
answers to a paper questionnaire, the panel rejected
Appellants’ contention that the district court was required to
receive the input of the parties and their counsel at an in-
person hearing.
Appellants contended that even if an in-person hearing
was not required, the district court’s sua sponte and ex parte
for-cause excusals (1) amounted to a complete denial of the
assistance of counsel at a critical stage of trial proceedings,
requiring automatic reversal without any harmless error
inquiry, under United States v. Cronic, 466 U.S. 648 (1984);
and (2) deprived them of a sufficient opportunity to be heard
in violation of their due process rights. The panel rejected
these contentions. After undertaking a retrospective review
of the juror questionnaires in this case in which defense
counsel had the opportunity to review the complete paper
record and to identify any jurors whose excusal was
questionable, the panel concluded that there is no reasonable
doubt that the identified jurors removed for cause were
properly excluded. The panel wrote that the district court’s
failure to consult with counsel or the parties in advance thus
did not make any difference, and there was no prejudicial
impingement on the right to counsel or on the due process
right to be heard with respect to these strikes. Accordingly,
there is no reversible error. The panel wrote that it should
nonetheless be clear that the panel cannot and does not
endorse what the district court did. To make case-specific
excusals of prospective jurors for cause without having first
6 USA V. EHMER

obtained the input of parties and counsel is improper and
unnecessarily risks injecting reversible error into the
proceedings.
The panel held that binding precedent requires rejection
of Appellants’ argument that the Sixth Amendment entitled
them to a jury trial even if the charged misdemeanor offenses
were properly classified as “petty” offenses. In this case in
which (1) the charged offenses involve violations of
regulations that Congress has made it a crime to disobey, (2)
the parties disagreed as to which criminal statutes underlie
the relevant regulations, and (3) the competing alternatives
do not have the same maximum penalty, the panel concluded
that both of the respective statutes cited by Appellants and
the Government apply to the relevant regulations, and that,
as a result, the Government had the prosecutorial discretion
to invoke either statute in charging a violation of the
regulations. Because the charging information here makes
clear that the Government invoked a statute, § 4 of the
Refuge Recreation Act, that defines only a petty offense, the
panel concluded that Appellants had no right to a jury trial
for these regulatory violations.
The panel held that there was sufficient evidence to
support (1) Ryan’s misdemeanor conviction for knowingly
trespassing on the Malheur National Wildlife Refuge;
(2) Ryan’s and Ehmer’s misdemeanor convictions for
knowingly using, without authorization, an excavator that
was the property of the United States Government; and (3)
Patrick’s misdemeanor conviction for knowingly entering
and starting, without authorization, an all-terrain vehicle that
was the property of the United States Government.
Concerning Patrick’s and Thorn’s convictions for
conspiracy to impede an officer of the United States in
 USA V. EHMER 7

violation of 18 U.S.C. § 372, the panel held (1) the district
court did not err in declining to instruct the jury that the
phrase “person . . . holding any office, trust, or place of
confidence under the United States” refers only to “Officers
of the United States” whose appointments are governed by
the Constitution’s Appointments Clause; (2) the district
court’s instructions correctly defined the scope of “threats”
and “intimidation” required by § 372; and (3) none of the
asserted evidentiary errors warrants reversal.
Concerning Ryan’s and Ehmer’s convictions for
depredation of government property in violation of 18
U.S.C. § 1361, the panel held (1) the district court properly
declined to instruct the jury as to self-defense; (2) the district
court did not abuse its discretion in excluding as cumulative
four of Ryan’s six proffered character witnesses; and (3)
even if there was a technical violation of Ehmer’s rights
under the Speedy Trial Act in the setting of the trial date for
a depredation charge included in a freestanding separate
indictment, Ehmer was not prejudiced.
Concerning Thorn’s sentence, the panel held that the
district court properly applied the preponderance-of-the-
evidence standard rather than the clear-and-convincing-
evidence standard in determining whether to apply various
enhancements in calculating Thorn’s sentencing range under
the sentencing guidelines. The panel held that the district
court did not err in applying a three-level enhancement under
U.S.S.G. § 2A2.4(b)(1)(B) for threatened use of a firearm.
The panel rejected Thorn’s and Patrick’s challenges to
an adjustment under application note 4 of U.S.S.G. § 3A1.4,
which addresses terrorism-related offenses.
8 USA V. EHMER

The panel held that the district court did not abuse its
discretion in applying a two-level aggravating-role
enhancement to Patrick under U.S.S.G. § 3B1.1(c).
Appellants challenged various orders by which the
district court precluded access to certain sealed
materials. They also renewed their motion in this court to
unseal certain materials that were included in a volume of
the Government’s supplemental excerpts of record that was
filed ex parte and under seal. The panel held that the district
court did not abuse its discretion in concluding that Thorn
failed to justify a requested order allowing only his counsel
to review a cooperation agreement between the Government
and a non-testifying co-defendant. The panel also rejected
Appellants’ contention that the district court improperly
denied discovery of certain memoranda concerning
information learned from Government informants. The
panel concluded that, while a district court order that is
contained in the Government’s supplemental excerpts of
record should remain under seal at this time, that document
should be disclosed to Appellants’ counsel under an
appropriate protective order on remand. With respect to the
other challenged items, the panel wrote that at this time they
should remain under seal and should not be disclosed to
Appellants or their counsel. The panel wrote that this ruling
is without prejudice to reconsideration on remand in the
district court after the disclosure of the sealed order.
Judge Berzon concurred in part and concurred in the
judgment in part. She agreed with the majority opinion in
full except for the part addressing defendants’ claims that the
district court’s ex parte dismissal of 430 prospective jurors
violated defendants’ rights to counsel and to presence. She
wrote separately principally to clarify the parameters of the
right-to-counsel and right-to-presence claims. She also
 USA V. EHMER 9

wrote that she agreed with the majority’s conclusion that
automatic reversal is not required, but for reasons other than
those relied upon by the majority. Because defendants do
not allege that any empaneled juror (or jury venire) was not
impartial, and do not contend that the district court’s
excusals impermissibly skewed the jury venire or the
empaneled jury, she concluded that the district court’s errors
did not, beyond a reasonable doubt, affect the verdict.

COUNSEL
Jesse Merrithew (argued), Levi Merrithew Horst PC,
Portland, Oregon, for Defendant-Appellant Jake Ryan.
Jay A. Nelson (argued), Law Office of Jay A. Nelson,
McMinnville, Oregon, for Defendant-Appellant Darryl W.
Thorn.
Robert M. Stone (argued), Robert M. Stone PC, Medford,
Oregon; Tonia L. Moro, Tonia L. Moro Attorney at Law PC,
Talent, Oregon; for Defendant-Appellant Duane L. Ehmer.
Andrew M. Kohlmetz (argued), Law Office of A.M.
Kohlmetz, Portland, Oregon, for Defendant-Appellant Jason
Patrick
Geoffrey A. Barrow (argued), Ethan D. Knight, Suzanne
Miles, Amy E. Potter, and Craig Gabriel, Assistant United
States Attorneys; Kelly A. Zusman, Appellate Chief; Billy J,
Williams, United States Attorney, District of Oregon; United
States Department of Justice, United States Attorney’s
Office, Portland, Oregon; for Plaintiff-Appellee USA.
Roger I. Roots, Roger Roots Attorney at Law, Livingston,
Montana, for Amicus Curiae Idaho Political Prisoner
Foundation and The Real 3%ers of Idaho.
10 USA V. EHMER

OPINION

COLLINS, Circuit Judge:

Defendants-Appellants Duane Ehmer, Darryl Thorn,
Jake Ryan, and Jason Patrick (collectively, “Appellants”)
appeal their convictions for various offenses arising from
their participation in the January 2016 occupation of the
Malheur National Wildlife Refuge (“Malheur NWR”) in
eastern Oregon. That occupation was undertaken in protest
against what Appellants and others saw as significant abuses
of power by the federal Government. Patrick and Thorn also
appeal the sentences imposed on them by the district court.
In addition, Appellants challenge the district court’s denial
of access to certain materials that were filed ex parte and
under seal. Although we agree with Appellants that several
of the rulings they challenge were erroneous, we ultimately
conclude that none of them warrants reversal of their
convictions or sentences. As to Appellants’ requests for
access to sealed materials, we grant relief as to one
document, remand for reconsideration as to certain others,
and deny relief as to the remainder.
I
We begin by describing the factual context leading up to
the occupation before describing the occupation itself and
the prosecutions that arose from it.
A
In April 2014, the federal Bureau of Land Management
(“BLM”) sought to carry out federal court orders authorizing
the BLM to impound cattle that Nevada rancher Cliven
Bundy was allowing to graze on federal land without a
permit. Shortly after the BLM began its impoundment
 USA V. EHMER 11

efforts near Bunkerville, Nevada, hundreds of protestors,
“including many openly carrying firearms, converged on the
impoundment site demanding that the BLM personnel leave
the site immediately and release the impounded cattle.” 1
Concerned about the safety of its personnel, the BLM
suspended its efforts and released the cattle. Cliven Bundy
and his sons Ammon and Ryan, together with a fourth
person, were criminally indicted for their part in the
confrontation, but the charges were dismissed with prejudice
after the district court concluded that the Government had
committed multiple egregious violations of its obligations
under Brady v. Maryland, 373 U.S. 83 (1963), to provide the
defense with evidence in its possession “that is potentially
exculpatory.” United States v. Bundy, 406 F. Supp. 3d 932,
940 (D. Nev. 2018). After the Government appealed, we
affirmed that decision. See United States v. Bundy, 968 F.3d
1019 (9th Cir. 2020).
Ammon Bundy thereafter became a prominent activist
and speaker on subjects such as land rights, and by 2015 his
email list reached about 28,000 people. In particular, he
promoted the view that the federal Government’s sole source
of power to control lands within a State is the Constitution’s
Enclave Clause, which authorizes Congress “[t]o exercise
exclusive Legislation in all Cases whatsoever, . . . over all
Places purchased by the Consent of the Legislature of the
State in which the Same shall be, for the Erection of Forts,
Magazines, Arsenals, dock-Yards, and other needful
Buildings.” See U.S. CONST. art. I, § 8, cl. 17 (emphasis
added). The Supreme Court, however, has expressly

1
Our quotations in this section are from the parties’ stipulation at trial
concerning certain of the events that preceded the occupation of the
Malheur NWR.
12 USA V. EHMER

rejected the view that, “in the absence of such consent” from
a State under the Enclave Clause, “Congress lacks the power
to act contrary to state law” in its management of federal
lands. Kleppe v. New Mexico, 426 U.S. 529, 541 (1976).
Instead, the Court has held that, even when the Enclave
Clause has not been invoked and a State “retains jurisdiction
over federal lands within its territory,” id. at 543, the
Constitution’s Property Clause—which grants Congress
“Power to dispose of and make all needful Rules and
Regulations respecting the Territory or other Property
belonging to the United States,” see U.S. CONST. art. IV, § 3,
cl. 2—gives Congress authority “to enact legislation
respecting those lands” that “necessarily overrides
conflicting state laws under the Supremacy Clause.” Kleppe,
426 U.S. at 543.
In late 2015, Ammon Bundy learned about the
prosecution of Dwight and Steven Hammond, two ranchers
living in Harney County, Oregon. The Hammonds had been
convicted of violating 18 U.S.C. § 844(f)(1), which prohibits
maliciously damaging or destroying federal property by fire,
based on their unauthorized conduct of rangeland burns. See
United States v. Hammond, 742 F.3d 880, 881 (9th Cir.
2014). One of the two counts on which Steven Hammond
was convicted involved land within the Malheur NWR.
Dwight and Steven Hammond were sentenced to within-
Guidelines sentences of, respectively, three months and 12
months plus one day. Id. at 882. However, the Government
appealed the sentences, asserting that the district court was
obligated to impose the statutory minimum sentence of five
years and that, contrary to what the district court had
concluded, this mandatory minimum sentence did not
violate the Eighth Amendment. We agreed and remanded
the case for resentencing. Id. at 884–85.
 USA V. EHMER 13

Ammon Bundy viewed the Hammonds’ case as “being
prosecuted for burning grass,” and he thought that the
Government overreach involved in “what was happening to
them was very similar” to “what happened to [his] family.”
He sought to rally support for the Hammonds, including
meeting them in person; publicizing their case by email, on
the internet, in print, and on radio; and meeting with the
Harney County Sheriff to “stand for the Hammonds.” In
mid-December 2015, he drafted a “Redress of Grievance”
that he sent to the Governor and other elected
representatives, asking them to create a panel to “investigate
these issues with the Hammonds.”
After receiving “zero” response from elected
representatives about the Hammonds’ situation—“not even
an e-mail back from them” or “even an answer of no”—
Ammon Bundy decided to take a “harder stand.” He
concluded that “we should go into the [Malheur] refuge and
occupy the refuge, and that would wake them up.” At a
December 29, 2015 meeting at a house in Burns, Oregon,
which Defendant Patrick also attended, Bundy laid out to a
group of supporters his idea of occupying the Malheur
NWR. According to Blaine Cooper, a participant at the
meeting who later testified for the Government at trial, the
plan was to take over the refuge “while armed with
weapons,” and in the event that the occupiers “encountered
employees as we went in there, we were told to ask them to
leave politely.” Ammon Bundy denied at trial that any such
discussion concerning employees had occurred at this
meeting.
A rally had already been scheduled in Burns for
Saturday, January 2, 2016, which was two days before the
Hammonds were set to report to prison on their new longer
sentences. After one supporter expressed concern to
14 USA V. EHMER

Ammon Bundy on December 31 that the upcoming rally was
being portrayed by some as a “Bundy Ranch style call to
action,” he responded in a private Facebook message that “It
is much more than a protest.”
B
About an hour before the January 2 protest in Burns
began, Ammon Bundy met with about 30 people at a
restaurant in town and explained his intention, after the rally,
to continue the protest at the nearby Malheur refuge. The
protest in Burns was peaceful.
As the protest was concluding, a convoy of three vehicles
headed towards the Malheur NWR. Upon arriving, Cooper
and the other occupants of the vehicles, together with others
already at the refuge, began going through the buildings to
make sure no one was there. Most of those who went
through the buildings were armed, including Defendant
Patrick, who had an AR-15. Given that it was a Saturday
and the day after New Year’s Day, no federal employees
were present, although the refuge was open to the public. A
neighboring rancher observed a group of about 12 armed
men who appeared to be “securing a perimeter” at the refuge.
Cooper stated that, after checking the buildings, he and
another man “set up a watch” at the “fire watchtower” near
the refuge’s front gate “in case the federal government
would come in on [them].”
Ammon Bundy arrived after the first convoy,
accompanied by several protesters who had attended the
rally in Burns. More protesters followed over the coming
days. Ehmer arrived on January 3, Thorn arrived some time
that week, and Ryan arrived two weeks after the occupation
started.
 USA V. EHMER 15

Many of the occupiers were armed, and the entrances to
the refuge were generally guarded by armed persons.
A neighboring ranger stated that the watchtower was
continuously staffed by armed individuals, who appeared to
follow eight-hour shifts “like clockwork.” Indeed, the
ranger remarked that the guards “looked like a sniper team.”
In addition, Ehmer, Thorn, and Ryan were all listed, in a
handwritten document later found in the refuge, as members
of various armed security teams organized by the occupiers.
During the occupation, Thorn occasionally posted about his
guard duty on Facebook. Cooper testified that the
“consensus” position among the protesters was that any
employees who tried to return to the refuge, or any law
enforcement officers who tried to dislodge the protesters,
would be stopped—the goal was “to make sure nobody came
in.”
The occupiers used Malheur NWR buildings as living
quarters and also used vehicles and equipment found on site.
Some of the occupiers posted notices on various buildings
stating “CLOSED PERMANENTLY.” At some point
during the occupation, Patrick was filmed cutting through
one of the refuge’s wire fences, while it was announced that
the land was being restored for “beneficial use.” At trial,
Ammon Bundy testified that the occupation was in part an
attempt to challenge federal ownership of the Malheur NWR
by “perfecting title through adverse possession.” In
interviews, Ammon and Ryan Bundy emphasized that they
were protesting not only the Hammonds’ arson convictions,
but also federal landownership and land-management
policies in general.
The Sheriff for Harney County, in which the Malheur
NWR refuge was located, repeatedly urged the occupiers,
over the phone and in person, to leave the refuge, but to no
16 USA V. EHMER

avail. In late January, the FBI learned that some of the
occupation’s leadership, including the Bundy sons, were
planning to travel outside the refuge on January 26 to attend
a rally or meeting in the town of John Day, Oregon. The FBI
intercepted the group once they were outside the refuge, and
in the ensuing confrontation, one member of the group,
LaVoy Finicum, was fatally shot. The remaining members
of the group, which included Ammon Bundy and his sons,
were arrested. The FBI communicated news of the arrests
“to all the individuals whose telephone numbers [it] had on
the refuge to try and persuade them to leave the refuge
immediately.” The FBI also relayed that it intended to set
up roadblocks around the refuge and that “if they wanted to
leave the refuge, now was the time to go.”
At a meeting later that evening, Thorn encouraged others
to stay and “defend the Constitution.” Patrick also urged
those present to stay, announcing that he would “defend
Article I, Section 8, Clause 17 of the United States
Constitution.” However, Thorn left the refuge later that day
or early the next day (January 27), and Patrick also left on
January 27. Concerned that the FBI might undertake an
armed assault on the refuge, Ehmer and Ryan on January 27
used an excavator to begin digging two large defensive
trenches. However, Ehmer left later that day and was
arrested. Ryan departed on January 28. Four holdouts—
none of whom are Appellants in this case—remained until
February 11.
C
A grand jury in the District of Oregon ultimately
returned a superseding indictment against 26 of the
occupiers, including the four Appellants, in March 2016. All
26 defendants were charged in count one, which alleged a
 USA V. EHMER 17

conspiracy, in violation of 18 U.S.C. § 372, to impede
officers of the United States, by “force, intimidation, and
threats,” from discharging their duties. Twenty
defendants—including Appellants Patrick, Thorn, and
Ryan—were charged in count two with possession of
firearms in a federal facility, with intent to commit another
crime (namely, the conspiracy charged in count one), in
violation of 18 U.S.C. § 930(b). In count three, Patrick and
eight other defendants were charged with using and carrying
a firearm during and in relation to a crime of violence
(namely, the conspiracy alleged in count one), in violation
of 18 U.S.C. § 924(c)(1)(A). Lastly, Ryan was charged in
count six with depredation of Government property in
violation of 18 U.S.C. § 1361. Appellants were not charged
in the remaining counts in the indictment.
On June 10, 2016, the district court dismissed the
§ 924(c) charge against Patrick and eight other defendants,
concluding that a conspiracy in violation of § 372 did not
qualify as a crime of violence for purposes of § 924(c). The
Government has not appealed that dismissal.
Eleven defendants pleaded guilty to one or more counts
of the indictment, and all charges against one defendant were
dismissed. The remaining 14 defendants were scheduled to
be tried in two separate trials. The first trial involved the
charges against seven defendants—namely, Ammon Bundy,
Ryan Bundy, Shawna Cox, David Fry, Jeff Banta, Kenneth
Medenbach, and Neil Wampler. On October 27, 2016, the
jury returned not guilty verdicts on all charges against all
seven of these defendants, except that the jury was unable to
reach a verdict as to one charge against Ryan Bundy. The
Government subsequently moved to dismiss that remaining
charge against Ryan Bundy, and the district court granted
that motion.
18 USA V. EHMER

The second trial involved the charges against the
remaining seven defendants, including the four Appellants,
and that trial was scheduled to begin on February 14, 2017.
However, after the first trial resulted in acquittals, the
Government filed additional charges against these remaining
defendants. Specifically, on December 19, 2016, the
Government filed a seven-count misdemeanor information
charging violations of various regulations governing
conduct at national wildlife refuges. All seven defendants
were charged with trespassing in violation of 50 C.F.R.
§ 26.21(a) (count one); Appellants were each charged with
one or more counts of tampering with vehicles and
equipment in violation of 50 C.F.R. § 27.65 (counts two
through five); Patrick was charged with one count of
destruction of public property in violation of 50 C.F.R.
§ 27.61 (count six); and Ehmer was charged with one count
of unlawful removal of property in violation of 50 C.F.R.
§ 27.61 (count seven). In addition, on December 20, 2016,
the Government obtained a separate indictment against
Ehmer for depredation of government property in violation
of 18 U.S.C. § 1361. Over Ehmer’s opposition, the district
court joined this additional indictment for trial on February
14, 2017, together with the main superseding indictment.
Shortly before trial, the three remaining defendants who
are not Appellants here—namely, Dylan Anderson, Sean
Anderson, and Sandra Anderson—each pleaded guilty to the
single misdemeanor count of trespassing alleged against
them in the information, and all remaining charges against
them were dismissed.
After a 12-day trial, the case was submitted to the jury
on the felony counts against Appellants. While the jury was
deliberating, the district court conducted a brief bench trial
at which it received additional evidence as to the
 USA V. EHMER 19

misdemeanor counts. On the fourth day of deliberations, the
jury returned its verdicts, convicting each Appellant of at
least one felony. Just over a week later, the district court
returned its verdict on the misdemeanor charges, convicting
each Appellant of at least one misdemeanor. The resulting
verdicts were as follows:

Main Indictment Jury Verdict as to

Count Charge Basis Patrick Thorn Ryan Ehmer

Conspiracy
18
to Impede Not Not
1 U.S.C. Guilty Guilty
U.S. Guilty Guilty
§ 372
Officers

Possession
18
of Firearm Not Not
2 U.S.C. Guilty
in U.S. Guilty Guilty
§ 930(b)
Facility

Depredation 18
6 of U.S. U.S.C. Guilty
Property § 1361

Second Indictment Jury Verdict as to

Count Charge Basis Ehmer

Depredation 18
1 of U.S. U.S.C. Guilty
Property § 1361

Information Court Verdict as to

Count Charge Basis Patrick Thorn Ryan Ehmer

50 C.F.R.
1 Trespassing Guilty Guilty Guilty Guilty
§ 26.21(a)
20 USA V. EHMER

Tampering 50
2 with C.F.R. Guilty
Vehicles § 27.65

Tampering 50
3 with C.F.R. Guilty Guilty
Vehicles § 27.65

Tampering 50
Not
4 with C.F.R.
Guilty
Vehicles § 27.65

Tampering 50
5 with C.F.R. Guilty
Vehicles § 27.65

Destruction 50
6 of U.S. C.F.R. Guilty
Property § 27.61

50
Removal Not
7 C.F.R.
of Property Guilty
§ 27.61

Patrick was sentenced to 21 months in prison, and Thorn
to 18 months. Ehmer and Ryan were both sentenced to 12
months and one day, and neither contests his sentence on
appeal.
All four defendants timely appealed. We have
jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742.
II
Appellants challenge certain aspects of the jury selection
procedures that the district court employed in this case.
Although we conclude that the district court should have
used different procedures, we hold that, on this record,
reversal is not warranted.
 USA V. EHMER 21

A
To set the issues concerning jury selection in context, it
is helpful to begin with a detailed overview of the jury
selection process in this case. But before doing that, we must
first resolve the parties’ threshold dispute over the scope of
the record that we may consider.
1
The Government included in its supplemental excerpts
of record certain email exchanges between the district judge
and all counsel concerning jury selection procedures.
Appellants moved to strike those documents from the
Government’s excerpts on the ground that they are not
properly part of the record on appeal. In response to that
motion, the Government filed a motion in the district court
seeking to have these documents formally added to the
record under Federal Rule Appellate Procedure 10(e)(2)(B),
and the district court granted that motion. We then denied
Appellants’ motion to strike those documents from the
Government’s excerpts. Appellants then moved for
reconsideration, directly challenging the district court’s
order adding these items to the record under Rule 10(e). We
deferred consideration of that issue so that it could be
considered together with the other issues raised on appeal.
We conclude that the district court properly added these
documents to the formal record under Rule 10(e).
Rule 10(e) authorizes the district court, even after the
record has been forwarded to this court on appeal, to add to
the record “anything material to either party” that was
“omitted from . . . the record by error or accident.” See FED.
R. APP. P. 10(e)(2); see also United States v. Mageno, 786
F.3d 768, 773 n.5 (9th Cir. 2015). The official
communications between the district court and the parties
22 USA V. EHMER

concerning the issues to be resolved concerning the jury
selection process, and the district court’s rulings and
instructions on that score, should not have been sent by
private emails but should have been set forth in filings or
orders that were made part of the official record of the
proceedings, under seal if necessary. Given that the district
court committed legal error by not making these official
communications part of the record at the outset, they were
“omitted from the record by error” within the plain meaning
of Rule 10(e). Cf. Kemp v. United States, 596 U.S. 528, 536–
38 (2022) (holding that a “mistake” that would authorize
relief from a judgment under Rule 60(b)(1) includes “both
legal and factual errors”). Moreover, adding these materials
“conform[s] the record to what happened” in the district
court concerning the jury selection process, and it does not
add anything that was not before that court or not considered
by it. United States v. Smith, 493 F.2d 906, 907 (5th Cir.
1974). Accordingly, Rule 10(e) authorized the district court
to later formally add those materials to the record and to
forward them to this court. See Parker v. Della Rocco, 252
F.3d 663, 665 n.2 (2d Cir. 2001) (invoking Rule 10(e) to add
to the record correspondence between the parties and the
district judge). We therefore deny Appellants’ motion to
reconsider our previous order declining to strike these
materials from the record.
2
With that clarification, we set forth what the record
reveals about the jury selection process in this case.
On December 29, 2016, the district court sent an email
to each party’s counsel explaining how the court would
proceed with certain aspects of the jury selection process.
The court’s email included the final version of the following
 USA V. EHMER 23

forms that would be sent as a package to approximately
1,000 prospective jurors: (1) the juror summons letter; (2) a
standard “Jury Duty Excuse Form”; (3) the juror
questionnaire that had been developed specifically for this
case in order to explore several areas for possible
disqualification of jurors; and (4) a juror’s oath form. The
decision to mail these forms together was a departure from
the procedure at the first trial, in which the case-specific
juror questionnaire was not provided to prospective jurors
until after they had first been screened by the district court
for general qualifications and hardship excuses.
The court’s December 29 email explained that the juror
questionnaire was “similar, but not identical, to the one used
for the first trial,” and that the court had declined to adopt
“Defendants’ proposals for an entirely different
questionnaire.” The court also stated that it would not
entertain further comments or objections from the parties
about “the substance of the questionnaire.” 2 The court
explained its refusal to consider further comments as
follows:

I am satisfied this version will get us started
with all of the necessary information and, of
course, each juror’s information will be
supplemented by the in-court process. As in
the first trial, you will have the opportunity to
give me juror-specific questions to raise with
individual, prospective jurors as may be

2
To preserve an adequate record for appeal, the court invited the parties
to lodge, as part of the record, the “form of questionnaire that
[Defendants] wanted the Court to use but that [the court] chose not to.”
24 USA V. EHMER

necessary to complete in [sic] the in-court
process.

The court’s email then described what the process would
be after the juror questionnaires and any “excuse requests”
had been received by the court. The court explained that,
given the deadline that was set for the jurors’ responses, the
court expected to “have a critical mass of Juror
Questionnaires prepared for [counsel] to review by
sometime during the week of January 30, 2017.” The court
instructed counsel to plan to set aside time during that week
to review the questionnaires “so that we can determine
shortly after January 30, 2017, which jurors you agree
should be excused for cause[,] at which point those
prospective jurors will be notified that they need not report
for in-court voir dire.” Once this process of excusing jurors
“for cause or hardship” was completed, then “the remaining
jury pool [would] be sequenced randomly in the order in
which they will be called for voir-dire.”
At a subsequent status conference on January 6, 2017,
the court reiterated that, as juror questionnaires “come in, I’ll
be communicating with you. To the extent we get a group
of questionnaires, a number sufficient that I think warrants
your—the beginning of your consideration of for-cause
challenges and the like, I’ll be in touch with you.” The court
stated, though, that it was “not going to set a deadline today
for the need to get the parties’ responses to juror
questionnaires for the for-cause piece.” The court described
as follows the process for conducting a preliminary review
 USA V. EHMER 25

of the juror questionnaires for hardship and for-cause
challenges (emphasis added):

I’ll be making decisions on deferral or
hardship in the ordinary course, and simply
informing you.
With respect to issues of the cause
challenges, you’ll need to confer. Let me
know the extent to which you agree a juror’s
questionnaire shows a basis to excuse for
cause.
If the last process is predictive of this one, in
most cases I accepted the parties’ stipulation.
To the extent the parties had a dispute, then
we reserved it to actual in-court voir dire,
developing the record with a real live
person—the juror—there, and then going
forward.
Once we go through the for-cause process
ahead of schedule, ahead of February 14, then
the remaining jurors in the pool will be
ordered randomly. And then that’s the order
in which they’ll be showing up in the jury box
for jury selection.

After then addressing the subject of how many alternate
jurors should be seated, the court returned to the subject of
reviewing the juror questionnaires (emphasis added):

I’ll be setting a timeline, as soon as I have a
better idea of how the jurors are responding[,]
with respect to deadlines for these for-cause
challenges, and the like.
26 USA V. EHMER

The goal will be, no later than when we do
the pretrial conference, to be engaging on the
record on disputed cause challenges.
Because we need to give enough [prospective
jurors] enough notices as to whether they’re
coming or not, whether they need to be here
or not.

No party objected to any aspect of the process that the
court described for resolving any issues arising from the
preliminary review of the juror questionnaires. The only
voir-dire-related issue raised at the status conference was a
concern about the logistics by which counsel could propose
follow-up questions to the court during the actual live voir
dire of jurors in the courtroom.
After receiving additional input from the parties on other
juror-related issues (such as sequestration and the number of
alternates), the district court issued a written order
concerning jury selection. That order included a section that
specifically addressed the parties’ review of the juror
questionnaires and that was modelled on the comparable
order issued at the first trial. The relevant portion of the
order again assured the parties that “[a]s soon as possible
after the Court receives a critical mass of the completed Juror
Questionnaires, the Court will make such Questionnaires
available to the parties for the parties’ advance review and
conferral regarding whether any potential jurors should be
excused ‘for cause.’” The court ordered the parties to
prepare a joint status report by February 3, 2017 in which
they would identify potential jurors who, from the face of the
questionnaires, should be excused for cause without resort to
in-person voir dire. The court stated that, at the pretrial
conference, it would review “the parties’ recommendations
 USA V. EHMER 27

and challenges regarding the prospective jurors to excuse for
cause based only on their Questionnaire responses,” and
would “rule[] on the parties’ requests to excuse certain
prospective jurors for cause and pursuant to the parties’
agreement.” After the completion of that process, the order
explained, “the Jury Administrator will order the remaining
jurors randomly in the sequence they will be called to
participate in live, in-court voir dire.” Again, no party raised
any objection to this portion of the court’s order.
Taken together, the court’s email, oral comments, and
written order confirmed that (1) the court would make
decisions on “deferral or hardship” without the parties’
input; (2) the parties would be given an opportunity to
review the juror questionnaires with respect to for-cause
challenges and to submit written recommendations and
challenges concerning particular jurors; and (3) those
“disputed cause challenges” based on the questionnaires
would be resolved “on the record” at the pretrial conference.
Despite the clarity of the process outlined by the court,
the district court informed the parties on January 27, 2017
that, without their input, it had sua sponte excused some
jurors for cause based solely on the questionnaires.
Specifically, in an email sent to counsel, the court stated
(emphasis added):

To date, the Court has excused, deferred or
disqualified 430 of the 1000 summonsed
jurors. The reasons range from hardships
arising from the expected length of trial or
winter driving conditions, familiarity with the
case producing strong opinions in favor [of]
or against one party or another, financial
hardship (including loss of wages during
28 USA V. EHMER

extended jury service), inability to be absent
from work for an extended period,
medical/age/caregiver hardships, preplanned
and purchased travel, and language issues.

At the pretrial conference on February 7, 2017, the
district court addressed the parties’ written submission
setting forth their respective contentions that, based solely
on the written questionnaires that had been sent to all
counsel, there was sufficient information to excuse certain
potential jurors for cause. Noting that the Government and
Appellants had agreed that several specific persons should
be excused for cause, the court stated that it nonetheless
wanted to verify the correctness of these challenges by
having the parties “state the agreed basis for challenge for
cause on the record.” The court ultimately agreed with each
of these joint challenges for cause and excused 27
prospective jurors on that basis. The persons excused
included, for example, prospective jurors who had expressed
strong views as to the Appellants’ guilt and an employee of
the U.S. Fish and Wildlife Service who had been “kept
informed of matters at the refuge as they were ongoing.”
There were 13 other prospective jurors who the parties
agreed should be excused for cause, but the court stated that
it had already sua sponte excused each of these jurors for
“hardship” reasons, thereby rendering “the for-cause
issue . . . moot.”
The court next reviewed the set of 26 prospective jurors
as to whom, in their written submission, only one side
contended that a for-cause challenge was warranted based
solely on the juror questionnaires. For 12 of these
prospective jurors, the parties ultimately agreed on the
record that the person should be excused for cause or the
 USA V. EHMER 29

court instead excused the person based solely on hardship
grounds. For the remaining 14, the court granted five
opposed for-cause challenges made by the Government and
five made by Appellants. The court, however, denied four
opposed challenges made by Appellants, concluding that the
issues raised warranted further exploration on voir dire
before making a final decision.
The court next addressed, in the same way, the parties’
challenges concerning a second batch of prospective jurors.
The court agreed with the parties’ joint motion to excuse one
juror for obvious lack of facility in the English language and
to excuse two other jurors for cause. The court excused
another juror challenged by Appellants based solely on
hardship grounds, and it granted Appellants’ opposed for-
cause challenge to an additional juror.
At another status conference the next day, February 8,
2017, Defendant Ehmer’s counsel, on behalf of all
Appellants, requested “on the record clarification”
concerning the Court’s earlier sua sponte excusal of
prospective jurors without any input from the parties.
Defense counsel stated that, with respect to the jurors whom
the court had excused for cause, there needed to “be a record
as to the reasons for cause,” just as the court required the
parties “to go through and articulate yesterday each of our
grounds for cause, even when there were stipulations.” The
district court responded that “what exists is a handwritten
note by me . . . on every questionnaire where a juror was
excused.” After explaining some of the factors the district
court considered, the court stated “I will tell the jury
supervisor to save all of the notes I made, in the event there’s
an issue. So those will be preserved.” After further
assurance that the court’s notes would be preserved, defense
counsel answered: “Thank you. That’s fine.” Shortly
30 USA V. EHMER

thereafter, Defendant Patrick, who was representing himself,
followed up by asking the court whether the court’s sua
sponte hardship dismissals had been “based on weather.” In
the ensuing colloquy with the court, Patrick expressed a
concern that weather-based excusals would
disproportionally rule out jurors from the eastern part of the
State, thereby skewing the jury pool. After the court
indicated that at least some jurors were willing to come from
that region and had been summoned, Patrick replied:
“Okay.”
After the preliminary review of questionnaires was
completed, prospective jurors were summoned and then
subjected to voir dire in the ordinary course.
B
Appellants’ challenges to the jury selection process rest
on two analytically distinct propositions. First, Appellants
contend that the court should not have excused individual
jurors without first receiving input from the parties and their
counsel as to those particular exclusions. Second,
Appellants assert that the manner in which that input should
have been received was a court hearing at which Appellants,
their counsel, and the public would have had a right to
attend. 3 We partly agree with the first contention but, on the
facts of this case, we reject the second.

3
Appellants have not raised any contention that the district court’s
sealing decisions erroneously denied public access to papers filed or
lodged with the court concerning jury selection, such as individual
jurors’ questionnaires or the parties’ filings concerning them. The sole
public access claim that Appellants raise concerning the jury selection
process relates to access to in-court hearings.
 USA V. EHMER 31

1
Before turning to those two specific questions, we
provide a brief overview of the relevant constitutional and
rules-based rights invoked by Appellants in making these
contentions.
a
First, as Appellants recognize, the Sixth Amendment’s
guarantee that a criminal defendant “shall enjoy the right . . .
to have the Assistance of Counsel for his defence,” U.S.
CONST. amend. VI, is one of the primary means for ensuring
that a defendant will be able to present a defense throughout
the court proceedings. Although the “core purpose of the
counsel guarantee was to assure ‘Assistance’ at trial, when
the accused was confronted with both the intricacies of the
law and the advocacy of the public prosecutor,” the Supreme
Court has held that the right to assistance of counsel also
extends to “pretrial proceedings” that constitute a “critical
stage of the proceedings.” United States v. Ash, 413 U.S.
300, 309–11 (1973) (emphasis added) (citation and internal
quotation marks omitted). Appellants contend that the
district court’s pretrial exclusion of individual prospective
jurors qualified as a “critical stage” to which the
constitutional right to assistance of counsel attaches, see id.
at 311, and that the court therefore violated this Sixth
Amendment right by dismissing hundreds of jurors “for
hardship and cause outside the presence of counsel.”
Although neither side has called the point to our
attention, we note that Appellant Patrick lacks standing to
assert on appeal any claim that the court’s jury selection
procedures interfered with his Sixth Amendment right to
assistance of counsel. Long before the district court made
the now-challenged exclusions, Patrick had successfully
32 USA V. EHMER

asserted his constitutional right to represent himself, see
Faretta v. California, 422 U.S. 806, 835 (1975), which
required that he first “knowingly and intelligently forgo[] his
right to counsel,” McKaskle v. Wiggins, 465 U.S. 168, 173
(1984). Although the district court appointed standby
counsel for Patrick—over his objection—that standby
appointment did not diminish Patrick’s Faretta right to
control his own defense. And Patrick did represent himself
throughout all relevant proceedings. Patrick therefore
cannot assert any claim that his Sixth Amendment right to
counsel was infringed during jury selection.
Nonetheless, we construe the arguments of Appellants,
including Patrick, as also resting on a defendant’s broader
and more fundamental right—rooted in the constitutional
guarantee “that no one shall be deprived of liberty without
due process of law”—to have “an opportunity to be heard in
his defense,” which “include[s], as a minimum, a right to
examine the witnesses against him, to offer testimony, and
to be represented by counsel.” Rock v. Arkansas, 483 U.S.
44, 51 (1987) (citation omitted); see also LaChance v.
Erickson, 522 U.S. 262, 266 (1998) (“The core of due
process is the right to notice and a meaningful opportunity
to be heard.”); United States v. Bordallo, 857 F.2d 519, 522
(9th Cir. 1988). This due process right of Patrick, as a pro
se defendant, to be heard in his criminal prosecution
necessarily affords him, at a minimum, the right to be heard
in any stage of the proceedings as to which, had he been
represented, his right to counsel would have attached. Cf.
United States v. Rice, 776 F.3d 1021, 1024 (9th Cir. 2015)
(“[W]e assume that the right to self-representation applies to
all proceedings to which the right to counsel applies.”).
 USA V. EHMER 33

b
Appellants also rely on a criminal defendant’s “right to
presence” as an additional source of their right to participate
in the court’s decisions concerning the excusal of jurors.
United States v. Gagnon, 470 U.S. 522, 526 (1985). A
criminal defendant’s “constitutional right to presence is
rooted to a large extent in the Confrontation Clause of the
Sixth Amendment,” but the Supreme Court has “recognized
that this right is protected by the Due Process Clause in some
situations where the defendant is not actually confronting
witnesses or evidence against him.” Id. (citation omitted);
see also Campbell v. Wood, 18 F.3d 662, 671 (9th Cir. 1994)
(en banc). As the Court has explained, “[t]he presence of a
defendant is a condition of due process to the extent that a
fair and just hearing would be thwarted by his absence, and
to that extent only.” Gagnon, 470 U.S. at 526 (quoting
Snyder v. Massachusetts, 291 U.S. 97, 105–06 (1934))
(simplified). Among the proceedings at which a defendant
has such a due process right to be present are “the voir dire
and empanelling of the jury.” Campbell, 18 F.3d at 671.
In addition, Federal Rule of Criminal Procedure 43
provides that “the defendant must be present at,” inter alia,
“every trial stage, including jury impanelment and the return
of the verdict.” See FED. R. CRIM. P. 43(a)(2). We have held
that this right under Rule 43 “is broader than the scope of the
constitutional right to be present.” United States v. Reyes,
764 F.3d 1184, 1189 (9th Cir. 2014). Unlike the
constitutional standard, which “only grants to the criminal
defendant the right to be present at all stages of the trial
where his absence might frustrate the fairness of the
proceedings,” United States v. Sherman, 821 F.2d 1337,
1339 (9th Cir. 1987) (citations and internal quotation marks
omitted), Rule 43 grants a categorical right to be present at
34 USA V. EHMER

“at every stage of the trial,” id. (quoting FED. R. CRIM P.
43(a)).
Appellants’ right-to-presence claim is somewhat
unusual, because it does not rest on the assertion that the
district court conducted a hearing or proceeding from which
they were physically excluded. Cf. Bordallo, 857 F.2d at
522–23 (holding that defendant Bordallo’s right to presence
was violated by district court’s actions in excusing “some of
the prospective jurors” while the judge and “veniremembers
were in the courtroom” but “[n]either Bordallo nor his
counsel were present”). On the contrary, their complaint is
that (1) the district court should have held a hearing before
concluding that certain jurors should be excused based on
their questionnaires alone; and (2) had the requisite hearing
been held, they would then have had a right to be present at
that hearing. To succeed on such a claim, they must establish
both of those two propositions.
c
Finally, Appellants also contend that the district court’s
sua sponte and ex parte excusals of jurors implicate their
Sixth Amendment right to a “public trial.” U.S. CONST.
amend. VI. This explicit constitutional right was “created
for the benefit of the defendant,” Gannett Co. v.
DePasquale, 443 U.S. 368, 380 (1979), and ensures that the
proceedings against the defendant will be subjected “to
contemporaneous review in the forum of public opinion,” id.
(quoting In re Oliver, 333 U.S. 257, 270 (1948)). The
Supreme Court has held that this Sixth Amendment right to
a public trial includes the “right to insist that the voir dire of
the jurors be public.” Presley v. Georgia, 558 U.S. 209, 213
(2010).
 USA V. EHMER 35

As with Appellants’ right-to-presence claim, their
public-trial claim rests on two assertions: (1) that the district
court should have held an in-court hearing on this subject;
and (2) had it done so, that hearing would have had to be
open to the public. See United States v. Ramirez-Ramirez,
45 F.4th 1103, 1110–11 (9th Cir. 2022) (holding that the
public-trial right requires an in-court hearing to announce the
verdict in a bench trial, which hearing the public can then
attend). As noted earlier, Appellants have not raised any
contention that the district court violated their public-trial
rights by sealing from public view various documents that
were lodged or filed with the court concerning jury selection.
See supra note 3.
2
Against this backdrop, we turn to the question whether
the district court erred in excusing individual jurors without
soliciting or receiving any input from the parties or counsel
concerning those individual decisions. In arguing that no
such input was required, and that none of the rights
Appellants invoke are implicated here, the Government
relies on the premise that the district court’s actions stayed
entirely within the parameters of the sort of preliminary
“administrative screening process” for jurors that courts may
properly conduct on an ex parte basis. We conclude that the
Government’s premise is only partly correct.
We agree with the Government that pre-screening and
excusing potential jurors “for hardship” is an administrative
task that “cannot reasonably be considered a part of the
criminal trial” and that therefore may be conducted by the
court or its staff—even in person—without the participation
of the parties or their lawyers. United States v. Calaway, 524
F.2d 609, 615–16 (9th Cir. 1975) (rejecting claim that, under
36 USA V. EHMER

Rule 43, defendant and his counsel had to be present when
judge excused jurors for hardship in open court without
telling them what the case was about), abrogated on other
grounds by Bourjaily v. United States, 483 U.S. 171, 175
(1987). The Jury Selection and Service Act expressly allows
the court, or the “clerk under supervision of the court,” to
excuse prospective jurors “upon a showing of undue
hardship or extreme inconvenience,” 28 U.S.C. § 1866(c)(1)
(emphasis added), and we expressly held in Calaway that
judges and court clerks may exercise this administrative
power to grant hardship applications under § 1866(c)(1) on
an ex parte basis. As we explained, “[o]rdinarily it falls to
the jury clerks or commissioners to excuse jurors for
hardship, a practice that has been approved by the courts,”
and “[s]urely the fact that this time the excusing was done
by a judge sitting in his courtroom does not alter the essential
nature of what was done.” Calaway, 524 F.2d at 616; see
also United States v. Greer, 285 F.3d 158, 168 (2d Cir. 2002)
(“[H]ardship questioning is not a part of voir dire—and thus
not a critical stage of the trial during which the parties and
counsel must be present.”); United States v. Woodner, 317
F.2d 649, 651 (2d Cir. 1963) (“Ordinarily, the jury clerks
hear such [hardship] excuses, and defendants have the
benefit of neither notes nor physical presence.”); cf. also Fay
v. New York, 332 U.S. 261, 271 (1947) (“[W]e cannot find it
constitutionally forbidden to set up administrative
procedures in advance of trial to eliminate from the panel
those who, in a large proportion of cases, would be rejected
by the court after its time had been taken in examination to
ascertain the disqualifications.”), abrogated on other
grounds by Taylor v. Louisiana, 419 U.S. 522, 536–38 &
n.19 (1975). Accordingly, to the extent that Appellants
 USA V. EHMER 37

challenge the district court’s sua sponte and ex parte excusal
of jurors on hardship grounds, we reject that contention.
The district court, however, also sua sponte excluded
other jurors for cause based in whole or in part on their
perceived ability to be impartial in this particular case. The
Government argues that these excusals likewise fall within
the permissible scope of routine administrative pre-
screening that can be undertaken by the court acting sua
sponte and ex parte and without hearing at all from the
parties or their counsel. We reject this contention.
The Government’s argument is foreclosed by our
decision in Bordallo, 857 F.2d 519. In that case, the district
court excused a number of prospective jurors for cause after
questioning them in the courtroom in the absence of the
parties and their counsel. See id. at 522. We held that this
manner of proceeding was a violation of the Due Process
Clause and that, at the very least, “either the defendant or his
counsel should have been present.” Id. at 523. Although we
did not cite Calaway, we rejected the view that the court’s
ex parte examination of the jurors could be characterized as
a permissible form of “ministerial” screening. Id. at 522–23.
Noting that the district court’s actions fell “somewhere
between” a purely administrative action and “the formal
pretrial narrowing of the pool through voir dire for a
particular trial,” we concluded that the court’s ex parte oral
examination of the jurors was “more appropriately
analogized to voir dire, because the prospective jurors knew
which specific case they would hear, and some were excused
due to factors related to Bordallo’s particular cause.” Id. at
523; see also Greer, 285 F.3d at 168 (citing Bordallo and
similarly distinguishing between “mere administrative”
screening and case-specific inquiries into bias).
38 USA V. EHMER

Although this case differs from Bordallo in that the
district court did not undertake an in-person inquiry of the
prospective jurors, each of the jurors here had completed a
lengthy questionnaire that specifically addressed a number
of case-specific concerns about bias for or against one of the
parties. As a result, the jurors all “knew which specific case
they would hear,” and “some were excused due to factors
related to [Appellants’] particular cause.” Bordallo, 857
F.2d at 523. As in Bordallo, the court’s failure here to obtain
the input of the defendants and counsel before excluding
jurors for cause based on case-specific concerns about bias
creates a risk that the “judge, either consciously or
inadvertently,” could “adversely affect[] the neutrality of the
juror pool.” Id. By making case-specific determinations of
potential bias based on prospective jurors’ written comments
about this specific case, the district court went well beyond
the sort of administrative screening that may be conducted
on an ex parte basis under Calaway. Although Bordallo
involved in-person “court contacts with jurors,” id. at 522,
Bordallo’s broader reasoning confirms that the district
court’s case-specific elimination of jurors for potential bias
in this matter went beyond administrative screening and
crossed into the actual juror-selection process for this
particular case. As part of that process, the district court’s
case-specific excusal of particular jurors for cause
constituted a “critical stage” of the proceedings with respect
to which, at the very least, Appellants had the right to
counsel and the right to be heard. 4

4
We address below Appellants’ further argument that, in light of the
specific rights that they invoke, the manner in which the parties and
counsel provide their input must be an in-court hearing at which the
defendants and the public attend. See infra section II(B)(3).
 USA V. EHMER 39

The Government nonetheless asserts that the Jury
Selection and Service Act (“the Act”) and the District of
Oregon’s Juror Management Plan (“the Plan”) specifically
authorized the district court’s actions, thereby confirming
their purely administrative nature. That is wrong, because
nothing in the Act or in the Plan authorized the district
court’s actions here, much less confirms that they may be
deemed to be purely administrative for constitutional
purposes. 5
The relevant portions of the Act are codified in Chapter
121 of Title 28 of the United States Code. Section 1866(c)
of that title enumerates five grounds for excusing otherwise
qualified jurors from service. Specifically, prospective
jurors may be excused (1) “upon a showing of undue
hardship or extreme inconvenience”; (2) “on the ground that
such person may be unable to render impartial jury service
or that his service as a juror would be likely to disrupt the
proceedings”; (3) “upon peremptory challenge as provided
by law”; (4) “upon a challenge by any party for good cause
shown”; and (5) “upon determination by the court that his
service as a juror would be likely to threaten the secrecy of
the proceedings, or otherwise adversely affect the integrity
of jury deliberations.” 28 U.S.C. § 1866(c)(1)–(5). The
Government notes that § 1866 explicitly requires that any
“exclu[sion] under clause (5) of this subsection” must be
made “in open court,” see id. § 1866(c)(5) (emphasis added),
and that no such express requirement applies to exclusions

5
We emphasize that we are construing the Act and the Plan only because
the Government has invoked them as persuasive authority in defining the
scope of a court’s permissible administrative pre-screening of jurors. As
the Government correctly notes, Appellants have not pressed in this court
any contention that their convictions should be set aside due to violations
of the Act or the Plan themselves.
40 USA V. EHMER

for inability “to render impartial jury service” under clause
(2). It therefore argues that, under the Act, exclusions for
bias may be made sua sponte by the court based on its review
of case-specific questionnaires. See United States v.
Contreras, 108 F.3d 1255, 1269 n.9 (10th Cir. 1997) (stating
that, in light of the Act’s specific in-court requirement for
excusals under only one clause of § 1866(c), “we can
logically infer that it may be permissible for a court to
exclude a juror for hardship or bias prior to voir dire”)
(emphasis added). This argument fails.
The fact that § 1866(c) does not itself expressly require
in-court hearings for each of the other four categories of
exclusions does not mean that those exclusions are all
administrative in nature and may therefore be conducted by
the court ex parte and sua sponte. Nothing in the language
of § 1866(c) purports to foreclose the possibility that other
sources of law—such as the Constitution or the Federal
Rules of Criminal Procedure—may preclude ex parte action
by the court with respect to the enumerated categories of
exclusions. Thus, although the list of remaining exclusions
in § 1866(c) includes “hardship” exclusions that may be
made by the court clerk ex parte in an administrative
capacity, see id. § 1866(c)(1), it also includes other
categories of exclusions that plainly qualify as a trial stage
to which the rights to presence and counsel would ordinarily
attach. For example, § 1866(c)(3) refers to the exclusion of
jurors pursuant to peremptory challenges, and there can be
no doubt that the constitutional rights to presence and to
counsel attach to the exclusion of jurors on that basis. See
United States v. Thomas, 724 F.3d 632, 642–43 (5th Cir.
2013) (holding that defendant’s constitutional rights to
counsel and to presence apply to the exercise of peremptory
challenges); cf. Bordallo, 857 F.2d at 522 (“Clearly counsel
 USA V. EHMER 41

must be present for the examination of the prospective jurors
and exercise of peremptory challenges”) (emphasis added);
Moreover, another subsection of § 1866(c) addresses
exclusions “by any party for good cause shown,” 28 U.S.C.
§ 1866(c)(4) (emphasis added), and such exclusions
obviously cannot be made without the participation of the
parties and counsel. Accordingly, the Government’s
suggestion that all of the other types of exclusions listed in
§ 1866(c) are administrative and ministerial in nature, and
therefore may be conducted by the court an ex parte basis, is
patently incorrect.
The Government’s argument is further undermined by
the relevant language of the District of Oregon’s Plan. That
Plan separately discusses the first ground for exclusion listed
in § 1866(c)—i.e., exclusions for “undue hardship,” see id.
§ 1866(c)(1)—in a section of the Plan that addresses
excusals and exemptions from jury service that may be made
by the clerk under the supervision of the court. See District
of Oregon, Juror Management Plan § 3.04(c)(2) (February 2,
2015). The other four grounds for exclusion listed in
§ 1866(c) are addressed in a later section of the Plan that
merely tracks the statutory language without elaboration.
See id. § 5.01(a)–(d). If anything, the Plan arguably reflects
the view that, among the five grounds listed in § 1866(c),
only exclusions for “hardship” qualify as the sort of
administrative pre-screening that may be conducted ex parte
by the court or the clerk.
More broadly, the Government’s argument that the
district court’s for-cause exclusions constitute permissible
administrative screening overlooks the fact that exclusions
for cause “may encompass both the generic and the case-
specific.” United States v. Spriggs, 102 F.3d 1245, 1253
(D.C. Cir. 1996) (emphasis added). Thus, even assuming
42 USA V. EHMER

that there might conceivably be some instances in which,
acting on an ex parte basis and in an administrative capacity,
a court might make a generic exclusion from jury service due
to an inability to be impartial—e.g., a categorical exclusion,
from criminal jury service, of the spouse or adult children of
the local U.S. Attorney—that does not mean that
determinations of bias based on individual juror comments
that are specific to a particular criminal case stand on the
same footing and may also be made administratively on an
ex parte basis. As we have explained, that was the critical
line we drew in Bordallo, and the for-cause exclusions that
occurred here were therefore not administrative or
ministerial in nature.
3
Having concluded that the excusal of jurors for cause
based on case-specific determinations of bias constitutes a
critical stage of the proceedings with respect to which the
parties and their counsel must be given an opportunity to be
heard, we next consider the parties’ contentions as to
whether the respective rights that Appellants invoke were
violated in a manner that requires reversal.
a
Appellants contend that the district court was required to
receive that input at an in-person hearing at which the
parties, their counsel, and the public would be present. In
making this argument, Appellants rely heavily on Bordallo,
in which we held that the defendant’s right to presence under
both the Due Process Clause and Rule 43 was violated when
neither the defendant nor his counsel was present during the
court’s in-court questioning and excusal of jurors based on
case-specific issues of potential bias. 857 F.2d at 522–23.
 USA V. EHMER 43

We reject this contention, because this case differs from
Bordallo in a crucial respect.
As we explained earlier, Appellants here agreed to a
procedure whereby the jurors would initially be screened
based solely on their answers to a paper questionnaire. See
supra section II(A)(2). Accordingly, the only question the
court was asked to decide was whether a particular juror’s
written questionnaire responses were sufficiently
disqualifying on their face that there was no need for live
voir dire at which the juror would be interrogated. If the
court could not make that conclusion based solely on the
paper record, then—and only then—would the juror in
question be summoned for individual voir dire in open court.
In Bordallo, by contrast, the defendant and his counsel
were absent from the court’s in-person “question[ing]” of
individual jurors “about their knowledge of a specific case.”
857 F.2d at 522. Such “in-the-moment voir dire” allows for
“a more intimate and immediate basis for assessing a venire
member’s fitness for jury service,” because those present to
observe that questioning can directly assess “the prospective
juror’s inflection, sincerity, demeanor, candor, body
language, and apprehension of duty.” Skilling v. United
States, 561 U.S. 358, 386–87 (2010). It is not surprising,
therefore, that we concluded in Bordallo that the absence of
the defendant and counsel from such in-person questioning
violated the defendant’s due process rights and Rule 43. 857
F.2d at 522–23. But in Appellants’ case, the district court’s
for-cause excusal decisions did not involve any such in-
person interaction with prospective jurors; instead, they
involved only determinations as to whether the paper record,
by itself, warranted for-cause challenges. As a result,
Appellants’ rights to be present did not require that the
district court afford them an in-person hearing to resolve
44 USA V. EHMER

those issues. Indeed, Rule 43 expressly states that it does not
provide a right for a defendant to be present at a “proceeding
involv[ing] only a conference or hearing on a question of
law,” see FED. R. CRIM. P. 43(b)(3), and we held in Reyes
that a “side bar exchange where the court decides whether to
excuse a juror for cause is . . . ‘a conference or hearing on a
question of law’ at which the defendant need not be present
under Rule 43(b)(3),” 764 F.3d at 1191. And we further held
in Reyes that, so long as the defendant has had adequate
opportunities to confer with his or her counsel before the
conference, the defendant does not have a constitutional
right to be present at a side-bar conference at which counsel
for both sides address the question whether to excuse a
particular juror for cause. See id. at 1196–97 (describing
such side-bars as “prototypical examples of instances ‘when
presence would be useless, or the benefit but a shadow’”
(quoting Snyder, 291 U.S. at 106–07)).
We have recognized that an “evidentiary hearing” may
be required on a motion in a criminal case, such as a motion
to suppress, if the motion makes a sufficient showing of a
need to resolve “contested issues of fact” that must be
decided by the court. United States v. Cook, 808 F.3d 1195,
1201 (9th Cir. 2015) (citation omitted). But we are aware of
no authority that would require the district court to hold an
in-court hearing to resolve issues that can be adequately
addressed and resolved on the papers. See 1A CHARLES
ALAN WRIGHT & ANDREW D. LEIPOLD, FEDERAL PRACTICE
AND PROCEDURE § 195 (5th ed. 2020) (noting that, absent a
“showing that there are material facts in dispute that require
a hearing to resolve,” a “party is not entitled to a hearing on
a motion” in a criminal case). Accordingly, nothing in the
Due Process Clause or the Federal Rules of Criminal
Procedure would have precluded the district court, for
 USA V. EHMER 45

example, from requiring the parties to submit briefs detailing
their respective arguments concerning whether particular
jurors should be excused based on their questionnaire
responses alone and then issuing a written ruling based
solely on those briefs. To be sure, Appellants expected,
based on the district court’s juror management order, that
their recommendations regarding whether jurors would be
excused for cause would be considered during an in-court
hearing where Appellants and their counsel would have been
present. But given that the matter to be resolved raises only
the question of whether the questionnaire responses alone
were disqualifying, Appellants’ rights to be present, whether
under the Constitution or the federal rules, did not give them
the right to insist on an in-person hearing to resolve those
matters. 6
Moreover, because the sole public access claim raised
here relates to public access to in-court hearings, see supra
note 3, there was likewise no violation of Appellants’ right
to a public trial. That is, even assuming that Appellants’
public-trial rights would have extended to a hearing on these
for-cause exclusions had one been held, cf. Waller v.
Georgia, 467 U.S. 39, 46–47 (1984) (holding that a
defendant’s public-trial right extends to a pretrial hearing on
a motion to suppress); United States v. Allen, 34 F.4th 789,

6
The concurrence construes Appellants’ right-to-presence arguments as
not really being about presence, but about the opportunity for the
defendant to have input in the jury selection process. See Concur. at 154.
We agree that, as we have explained, see supra at 32, a defendant has a
due process right to be heard even as to matters that do not involve or
require an in-person hearing—a right that is typically satisfied if the
defendant’s counsel has had sufficient opportunity for input into those
matters. But it seems anomalous to analyze such right-to-be-heard issues
under the rubric of a right to “presence.”
46 USA V. EHMER

800–01 (9th Cir. 2022), the Sixth Amendment right to a
public trial does not create a right to have an in-court oral
argument on such a question, so that the public can then
attend it. Although there are some instances in which the
Sixth Amendment right to a public trial affirmatively
requires an in-court proceeding that the public can then
attend, see Ramirez-Ramirez, 45 F.4th at 1110–11 (holding
that the Sixth Amendment right to a public trial requires that
the verdict in a bench trial be announced “in a public
proceeding” in court), the resolution of a matter suitable for
decision on a strictly paper record is not one of those
instances.
Furthermore, there is no sense in which the Sixth
Amendment right to counsel or the due process right to be
heard requires an in-person hearing on the question of
whether a juror’s written questionnaire sufficiently disclosed
grounds for excusal for cause. See Dredge Corp. v. Penny,
338 F.2d 456, 462 n.14 (9th Cir. 1964) (“The opportunity to
be heard orally on questions of law is not an inherent element
of procedural due process, even where substantial questions
of law are involved.”); cf. United States v. Birtle, 792 F.2d
846, 848 (9th Cir. 1986) (rejecting the view that failure of
counsel to appear at oral argument amounts to a per se Sixth
Amendment violation, noting that “[o]ral argument on
appeal is not required by the Constitution in all cases; nor is
it necessarily essential to a fair hearing”). So long as there
is a sufficient opportunity to be heard with respect to such a
matter, an in-person hearing is not constitutionally
compelled.
Accordingly, an in-person hearing was not required to
resolve these paper-based juror-excusal decisions. And, as
a result, Appellants’ right-to-presence and public-trial
claims necessarily fail.
 USA V. EHMER 47

b
Appellants also contend, however, that even if an in-
person hearing was not required, the district court’s sua
sponte and ex parte for-cause excusals (1) amounted to a
complete denial of the assistance of counsel at a critical stage
of the trial proceedings, requiring automatic reversal without
any harmless error inquiry, under United States v. Cronic,
466 U.S. 648, 658–59 (1984); and (2) deprived them of a
sufficient opportunity to be heard in violation of their due
process rights. Under the specific circumstances of this case,
we reject these arguments.
As we have explained, the particular question addressed
by the district court involved a strictly paper review of the
jurors’ already-completed questionnaires for the presence of
disqualifying bias. As such, it did not entail any live
interaction with those prospective jurors or any other
development of the factual record. Cf. Gomez v. United
States, 490 U.S. 858, 874–75 (1989) (holding that voir dire
erroneously conducted by a magistrate judge without the
parties’ consent could not “meaningfully” be reviewed,
because such voir dire turned on “not only spoken words but
also gestures and attitudes of all participants to ensure the
jury’s impartiality”). And because the only issue was
whether the paper record already made clear that particular
jurors should be excused for cause without conducting in-
person voir dire, the task did not involve spotting and raising
any other legal issues. Given the resulting very limited
nature of the inquiry, any errors in excusing particular jurors
sua sponte based on the questionnaires alone can be readily
and fully identified by undertaking a retrospective review of
those questionnaires. Indeed, such a retrospective review of
the substance of the district court’s sua sponte rulings is not
materially different from the review that we would have
48 USA V. EHMER

conducted had Appellants chosen to challenge on appeal the
correctness of any of the many juror-excusal rulings that the
district court made after receiving the parties’ input at the
February 7, 2017 status conference.
Moreover, at Appellants’ request, all of the
questionnaires at issue here—which contained the district
court’s handwritten rulings concerning the particular
prospective jurors—were preserved and were made
available to counsel after the fact. In response to a defense
inquiry at the February 8, 2017 pretrial status conference, the
court stated that all of the questionnaires, together with the
court’s handwritten comments, would be preserved. No
defendant requested the opportunity to review those
questionnaires in advance of the trial. After the convictions
had been appealed, Appellants’ counsel filed an unopposed
motion to be granted access to the relevant juror materials
and to have them added formally to the record. In February
2019, the district court granted this motion in part, allowing
defense counsel the right “to inspect and to copy unredacted
versions of the case-specific Juror Questionnaires and Jury
Service Excuse Forms.” However, given the volume of
paper records involved, the court declined to “scan and/or
file these voluminous records on the docket.” Instead, the
court invited defense counsel, after inspection of the
questionnaires, to identify whatever subset they wished to
add to the formal record and to file a further motion to
accomplish that. After a review of the juror questionnaires
was completed, Appellants’ counsel filed such a motion in
the district court to formally add to the record the particular
subset of juror materials that counsel had identified, which
involved a total of nine prospective jurors. The court granted
that motion, and those materials have been provided to this
court. Having thus had the benefit of defense counsel’s
 USA V. EHMER 49

after-the-fact review of the questionnaires, we are fully able
to review whether the nine ex parte excusals identified by
Appellants’ counsel were improper.
Against this backdrop, we reject Appellants’ argument
that the proceedings below entailed a complete deprivation
of the right to counsel with respect to a critical stage, so as
to warrant automatic reversal under Cronic. Appellants
correctly note that the Supreme Court has held (1) that the
Sixth Amendment right to counsel attaches to “pretrial
proceedings” that constitute a “critical stage[] of the
proceedings,” Ash, 413 U.S. at 310–11 (emphasis added)
(citation and internal quotation marks omitted); and (2) that
structural error occurs, without the need to make any
“showing of prejudice,” if a defendant is completely
deprived of the assistance of counsel “at a critical stage of
his trial,” Cronic, 466 U.S. at 659 & n.25 (emphasis added).
But despite this similarity in terminology, we have
repeatedly rejected the view that every “critical stage” to
which the right of counsel attaches is “necessarily the sort of
‘critical stage’ at which the deprivation of that right
constitute[s] structural error” under Cronic. Ayala v. Wong,
756 F.3d 656, 673 (9th Cir. 2014) (emphasis added), rev’d
on other grounds sub nom. Davis v. Ayala, 576 U.S. 257,
267 (2015); see also United States v. Martinez, 850 F.3d
1097, 1103 n.4 (9th Cir. 2017); United States v. Mohsen, 587
F.3d 1028, 1031–32 (9th Cir. 2009); United States v. Owen,
407 F.3d 222, 227–28 (4th Cir. 2005). Instead, a denial of
counsel at a critical stage to which the right to counsel
attaches will require automatic reversal only if the relevant
actions taken at that stage “hold[] such ‘significant
consequences’ for the overall proceeding that a prejudice
inquiry is impractical.” Martinez, 850 F.3d at 1103 n.4
(citations omitted) (emphasis added); see also Woods v.
50 USA V. EHMER

Donald, 575 U.S. 312, 318 (2015) (stating that automatic
reversal for complete denial of counsel at a critical stage
“applies in ‘circumstances that are so likely to prejudice the
accused that the cost of litigating their effect in a particular
case is unjustified’” (citation omitted)). Under that standard,
automatic reversal is not warranted here.
We conclude that three unique features of this case
combine to make per se reversal inappropriate. First, as we
have repeatedly emphasized, the challenged decisions
involved the resolution of a carefully focused question based
solely on a discrete paper record. Second, Appellants’
attorneys were subsequently able to review all of the juror
materials in question and to identify whichever ones they
wished to submit to the court as reflecting potentially
erroneous for-cause excusals. As a result, we are fully able
to assess Appellants’ contentions—made with the assistance
of their counsel—as to whether the identified ex parte
excusals by the court were unwarranted. Third, as we shall
explain, our review of those questionnaires here leads us to
conclude that none of the challenged excusals were
improper. Under these circumstances, we cannot say that a
“prejudice inquiry is impractical,” Martinez, 850 F.3d at
1103 n.4, or that the “circumstances . . . are so likely to
prejudice the accused that the cost of litigating their effect in
a particular case is unjustified,” Woods, 575 U.S. at 318
(citation omitted).
In considering whether any of the ex parte excusals
identified by Appellants with the assistance of counsel were
improper, we are presented with an initial threshold question
as to what standard of review we should apply in examining
the correctness of the district court’s for-cause excusals. We
do not appear to have specifically addressed what standard
of review applies when the district court excuses a juror for
 USA V. EHMER 51

cause based solely on a written questionnaire, and other
circuits appear to have taken differing views, at least in the
death penalty context. Compare United States v.
Chanthadara, 230 F.3d 1237, 1270 (10th Cir. 2000)
(applying de novo review where for-cause excusals were
based on questionnaires), with United States v. Purkey, 428
F.3d 738, 750 (8th Cir. 2005) (expressly rejecting
Chanthadara on this point). Moreover, the fact that we are
confronting this question in the context of a retrospective
review of excusals that were made without advance input
from counsel raises the question whether we should apply
the standard of review applicable to claims of constitutional
error—namely, whether the error was harmless beyond a
reasonable doubt. See Chapman v. California, 386 U.S. 18,
21–22 (1967); cf. Mohsen, 587 F.3d at 1031–32 (applying
Chapman standard to failure to consult with counsel before
responding to jury note). Applying the Chapman standard
in this context would require us to consider whether we can
say, beyond a reasonable doubt, that the challenged excusals
were proper. See Bordallo, 857 F.2d at 523 (applying that
standard in the context of evaluating excusals made during
an in-court voir dire from which the defendant and counsel
were excluded). We need not resolve this question as to the
proper standard of review for evaluating the correctness of
the district court’s excusals in this specific context. Even
assuming that the most demanding standard applies—i.e.,
the Chapman standard—we conclude that the excusals were
proper.
Having examined the juror materials identified by
Appellants’ counsel, we note at the outset that the record
makes clear that at least one of the nine prospective jurors
whom counsel has identified was excused or deferred due to
hardship reasons, not bias. As we have explained, the
52 USA V. EHMER

district court did not err in making such exclusion decisions
ex parte. Turning to the remaining eight jurors identified,
we conclude that there is no reasonable doubt that these eight
jurors were properly excluded.
For starters, one of the excused prospective jurors stated
that her husband was a member of a SWAT team that had
responded to the occupation of the Malheur NWR. Four
others expressed strong opinions about the case on their
questionnaires and declared that they could not be impartial.
See United States v. Paradies, 98 F.3d 1266, 1279 (11th Cir.
1996) (upholding exclusion of jurors for cause, based solely
on paper questionnaires, when the potential jurors
“professed that they were badly prejudiced against one
side”). Another prospective juror admitted that, after
receiving the jury questionnaire but before reviewing its
instructions closely, he had (improperly) researched the case
on the internet for nearly 90 minutes. See United States v.
North, 910 F.2d 843, 910 (D.C. Cir. 1990) (upholding
exclusion of jurors based solely on written questionnaire
indicating “significant” familiarity with highly publicized
inadmissible evidence), withdrawn in part on other grounds
on rehearing, 920 F.2d 940 (D.C. Cir. 1990). As to the
remaining two jurors, they were deferred from jury service
after expressing both significant hardship concerns as well
as issues concerning an inability to follow court instructions
or to be impartial. The record thus does not make entirely
clear whether these two deferrals were solely for hardship
reasons, but viewing the respective juror materials as a
whole, we conclude that these exclusions were also proper.
We are thus satisfied beyond a reasonable doubt that, as in
Bordallo, “[t]he record is clear that those particular
 USA V. EHMER 53

prospective jurors who were released would and should have
been released in any event.” 857 F.2d at 523. 7
To sum up, this is a case in which (1) the district court
made ex parte for-cause excusals based solely on a discrete
paper record; and (2) defense counsel subsequently had the
opportunity to review that complete paper record and to
identify any jurors whose excusal was questionable. We
therefore conclude that this is not a situation in which there
was a “complete denial of counsel” with respect to a critical
stage in the sense in which Cronic uses that phrase, and that
automatic reversal is not warranted. 466 U.S. at 659. We
have further concluded, beyond a reasonable doubt, that the
nine jurors identified by counsel were properly excused. For
the reasons we explained earlier, it follows from these
premises that the district court’s failure to consult with
counsel or the parties in advance did not make any
difference. And, given that conclusion, there was no
prejudicial impingement on the right to counsel or on the due
process right to be heard with respect to these strikes. See
Bordallo, 857 F.2d at 523.

7
The concurrence contends that, in the absence of implied bias, a district
court ordinarily cannot excuse a prospective juror based on perceived
impartiality or familiarity with the case unless it first “conduct[s] inquiry
before excusing the juror for cause.” See Concur. at 143. That position,
which would effectively outlaw the use of questionnaires to conduct an
initial level of for-cause screening, is not one that Appellants have raised
in this case. On the contrary, Appellants clearly consented to a process
in which such screenings could occur based on the questionnaires alone,
and large numbers of jurors were excluded, with counsel’s input, based
only on the written questionnaires. See supra at 28–30. Because
Appellants have clearly forfeited the concurrence’s argument that no
such paper-based excusals are permissible except in implied-bias cases,
we need not consider whether the result would be different had
Appellants preserved such an objection.
54 USA V. EHMER

Accordingly, there is no reversible error on this score. It
should nonetheless be clear from our discussion that we
cannot and do not endorse what the district court did here.
To make case-specific excusals of prospective jurors for
cause without having first obtained the input of the parties
and counsel is improper and unnecessarily risks injecting
reversible error into the proceedings. We do not expect to
be confronted with such a practice ever again.
III
Appellants argue that the district court violated their
Sixth Amendment right to trial by jury when, over their
objections, the court refused to submit to the jury the various
misdemeanor charges that had also been brought against
them. Reviewing de novo, see United States v. Charette, 893
F.3d 1169, 1172 (9th Cir. 2018), we conclude that the district
court did not err.
A
Appellants contend, as a threshold matter, that the Sixth
Amendment requires a jury trial in all criminal cases,
including misdemeanors. They note that the literal words of
the Sixth Amendment state, without exception, that “[i]n all
criminal prosecutions, the accused shall enjoy the right to a
speedy and public trial, by an impartial jury.” U.S. CONST.
amend. VI (emphasis added). The jury trial provision set
forth in the original Constitution likewise states that “[t]he
Trial of all Crimes, except in Cases of Impeachment, shall
be by Jury.” U.S. CONST. art. III, § 2 (emphasis added).
Appellants concede, however, that the Supreme Court has
long held “that the Sixth Amendment, like the common law,
reserves this jury trial right for prosecutions of serious
offenses, and that ‘there is a category of petty crimes or
offenses which is not subject to the Sixth Amendment jury
 USA V. EHMER 55

trial provision.’” Lewis v. United States, 518 U.S. 322, 325
(1996) (emphasis added) (quoting Duncan v. Louisiana, 391
U.S. 145, 159 (1968)). That binding precedent requires us
to reject Appellants’ argument that they were entitled to a
jury trial even if the charged misdemeanor offenses were
properly classified as “petty” offenses.
Appellants nonetheless assert that the continued validity
of the petty-offense exception to the jury-trial right has been
called into question by the line of Supreme Court cases
beginning with Apprendi v. New Jersey, 530 U.S. 466
(2000). Under the Apprendi line of cases, any fact that
would increase the maximum sentence, or that would trigger
or increase a mandatory minimum sentence, constitutes an
element of the offense and must be found by the jury. See
Alleyne v. United States, 570 U.S. 99, 111–17 (2013);
Apprendi, 530 U.S. at 490. But the Apprendi line of cases
merely defines the scope of what must be submitted to the
jury in the trial of an offense to which the jury-trial right
applies; it does not purport to alter the settled understanding
of which offenses trigger that right in the first place. This
conclusion is confirmed by the Supreme Court’s decision in
Southern Union Co. v. United States, 567 U.S. 343 (2012),
which held that any fact that would alter the range of
criminal fines that may be imposed is an element of the
offense that is subject to Apprendi’s rule. See id. at 360. In
the course of reaching that conclusion, the Court stated:

Where a fine is so insubstantial that the
underlying offense is considered “petty,” the
Sixth Amendment right of jury trial is not
triggered, and no Apprendi issue arises. The
same, of course, is true of offenses
punishable by relatively brief terms of
56 USA V. EHMER

imprisonment—these, too, do not entitle a
defendant to a jury trial.

Id. at 350–51 (citations omitted). Southern Union makes
clear that the Apprendi line of cases leaves undisturbed the
long-recognized petty-offense exception to the jury-trial
right.
B
“In determining whether a particular offense should be
categorized as ‘petty,’” the Supreme Court has emphasized
reliance on “objective indications of the seriousness with
which society regards the offense.” Blanton v. City of North
Las Vegas, 489 U.S. 538, 541 (1989) (citations omitted).
The “most relevant [of] such criteria” is “the maximum
authorized penalty,” which often best reflects the legislative
judgment as to the seriousness of an offense. Id. (citations
omitted). In some cases, “the length of the authorized prison
term or the seriousness of other punishment is enough in
itself to require a jury trial,” and the Court has found that to
be true “whenever the offense for which [the defendant] is
charged carries a maximum authorized prison term of greater
than six months.” Id. at 542 (citations and emphasis
omitted). By contrast, where the maximum sentence is six
months or less, the offense is presumed to be a petty offense,
and a “defendant is entitled to a jury trial in such
circumstances only if he can demonstrate that any additional
statutory penalties, viewed in conjunction with the
maximum authorized period of incarceration, are so severe
that they clearly reflect a legislative determination that the
offense in question is a ‘serious’ one.” Id. at 543; see also
United States v. Clavette, 135 F.3d 1308, 1310 (9th Cir.
1998) (holding that “the addition of a $25,000 fine to a
 USA V. EHMER 57

prison term of not more than six months” was insufficient to
rebut the presumption that the offense was petty).
Given the central role that the statutory maximum
penalty plays in this analysis, the first question we must
decide is which statutory provision Appellants have been
charged with violating. That would ordinarily be a simple
question of examining what statutory violation is alleged in
the charging document. But where the charged offenses
involve violations of regulations that Congress has made it
a crime to disobey, the matter can be more complicated. In
the case before us, the parties disagree as to which criminal
statutes underlie the relevant regulations, and the competing
alternative statutes do not have the same maximum penalty.
We conclude that both of the respective statutes cited by
Appellants and by the Government apply to the relevant
regulations and that, as a result, the Government had the
prosecutorial discretion to invoke either statute in charging
a violation of the regulations. And because the charging
information here makes clear that the Government invoked
a statute that defines only a petty offense, Appellants had no
right to a jury trial for these regulatory violations.
1
We begin with the language of the charging information.
Each of the five relevant counts in that information 8 alleges
that one or more Appellants committed certain conduct in
violation of specified regulations “and Title 16, United
States Code, Section 460k-3, a Class B misdemeanor.” Each
of those five counts charges a violation of one of the
following three regulations: (1) 50 C.F.R. § 26.21(a), which

8
The respective Appellants were acquitted on two of the seven
individual charges.
58 USA V. EHMER

prohibits “trespass[ing]” in “any national wildlife refuge”;
(2) 50 C.F.R. § 27.65, which prohibits “[t]ampering with . . .
any motor vehicle, boat, equipment or machinery on any
national wildlife refuge without proper authorization”; and
(3) 50 C.F.R. § 27.61, which prohibits “[t]he destruction . . .
or the unauthorized removal of any public property . . . on or
from any national wildlife refuge.” 9
The statutory section referenced in the information is § 4
of the Refuge Recreation Act (“RRA”), Pub. L. No. 87-714,
76 Stat. 653, 654 (Sept. 28, 1962), which has been classified,
as amended, to 16 U.S.C. § 460k-3. 10 Section 4 of the RRA
is one of the cited sources of authority under which the three
relevant regulations were issued in their current form in
1976. See 41 Fed. Reg. 9166, 9168, 9170 (Mar. 3, 1976).
Section 4 authorizes the Secretary of the Interior “to issue
regulations to carry out the purposes” of that Act, see 16
U.S.C. § 460k-3, and those purposes include ensuring that
any “public recreation” allowed “on areas within the
National Wildlife Refuge System” is “compatible with, and
will not prevent accomplishment of, the primary purposes
for which the said conservation areas were acquired or
established,” id. § 460k. The cited regulatory prohibitions
against trespassing, destruction or unauthorized removal of

9
Each of the counts also cites the regulatory provision that describes the
penalties associated with these regulations, but that provision merely
states that a violation of one of the regulations contained in the relevant
subchapter of the Code of Federal Regulations “may render such person
liable” to the “penalties as prescribed by law.” See 50 C.F.R. § 28.31.
That provision thus does not purport to identify which statutory penalty
provision is associated with which regulatory prohibition; instead, it
merely string-cites all of the potentially applicable statutory provisions.
10
Unlike certain other titles of the U.S. Code, Title 16 has not been
enacted as positive law. See 1 U.S.C. § 204(a); 2 U.S.C. § 285b(4).
 USA V. EHMER 59

property, and unauthorized tampering with vehicles or
machinery are all reasonably related to these statutory
objectives of ensuring that members of the public will not
interfere with the primary purposes of a national wildlife
refuge. See Mourning v. Family Publ’ns Serv., Inc., 411
U.S. 356, 369 (1973) (“Where the empowering provision of
a statute states simply that the agency may make such rules
and regulations as may be necessary to carry out the
provisions of this Act, we have held that the validity of a
regulation promulgated thereunder will be sustained so long
as it is reasonably related to the purposes of the enabling
legislation.” (simplified)).
That remains true even when those regulations are
applied to persons (such as Appellants) whose presence in a
refuge would perhaps not be thought of as “recreation” in the
ordinary sense of that term. The authority to admit members
of the public to a refuge (or parts within it) for specified
purposes necessarily includes the authority to prohibit
unauthorized entry (i.e., trespassing). And that authority, as
well as the authority to regulate the behavior of members of
the public admitted to a refuge for recreation purposes, is
reasonably furthered by across-the-board regulations against
misbehavior by any members of the public who happen to
be within a refuge. The issuance and enforcement of the
three relevant regulations at issue here thus are amply
supported, in their current form, based just on the regulatory
authority conferred by § 4 of the RRA.
To the extent that § 4 of the RRA provides the relevant
statutory authority underlying the three regulations that
Appellants are charged with violating, § 4 specifies that a
“violation of such regulations shall be a misdemeanor with
maximum penalties of imprisonment for not more than six
months, or a fine of not more than $500, or both.” 16 U.S.C.
60 USA V. EHMER

§ 460k-3. However, under the alternative maximum fines
provisions of Title 18 of the U.S. Code, the maximum fine
that would be available for a violation of a regulation issued
under § 4 of the RRA is actually $5,000 rather than $500.
See 18 U.S.C. §§ 3559(a)(7), 3571(b)(6), (e). Because the
maximum term of imprisonment is six months or less, a
violation of a regulation issued under § 4 of the RRA is
presumptively a petty offense. See Blanton, 489 U.S. at 543.
And under Clavette, the addition of a maximum fine of
$25,000 or less (such as the $5,000 maximum fine here) is
insufficient to rebut that presumption. 135 F.3d at 1310.
Accordingly, to the extent that § 4 of the RRA provides the
relevant statutory offense here, the violations charged here
were petty offenses and Appellants were not entitled to a jury
trial.
However, as Appellants note, the 1976 notice issuing
these regulations cited, as an additional source of authority,
§ 4 of the National Wildlife Refuge System Administration
Act of 1966 (“NWRSAA”), Pub. L. No. 89-669, 80 Stat.
926, 927 (Oct. 15, 1966), which has been classified, as
amended, to 16 U.S.C. § 668dd. Section 4(b)(5) of the
NWRSAA authorizes the Secretary of the Interior to “[i]ssue
regulations to carry out” that Act. See 16 U.S.C.
§ 668dd(b)(5). The broadly defined purposes of the
NWRSAA include the protection of the “biological
integrity, diversity, and environmental health” of areas
within the “National Wildlife Refuge System”; the
“conservation of fish, wildlife, and plants, and their habitats
within the System”; and the regulation of “public uses of the
System,” including “priority general public uses” such as
“compatible wildlife-dependent recreational uses,” through
the imposition of such “restrictions” on public use “as may
be necessary, reasonable, and appropriate.” Id.
 USA V. EHMER 61

§ 668dd(a)(1), (a)(3)(D), (a)(4)(A), (a)(4)(B), (a)(4)(H)–(J).
This regulatory authority conferred by the NWRSAA is
likewise sufficient, on its own, to support the three relevant
regulatory prohibitions against trespassing, the destruction
or removal of property, or tampering with vehicles or
equipment in national wildlife refuges. See Mourning, 411
U.S. at 369.
But in contrast to the penalty provision in § 4 of the
RRA, the criminal provision of the NWRSAA, which is
contained in § 4(f), draws a distinction between a “person
who knowingly violates or fails to comply with . . . any
regulations issued” under the NWRSAA and a “person who
otherwise violates or fails to comply with” such a regulation.
16 U.S.C. § 668dd(f)(1)–(2) (emphasis added). The former
is subject to “imprison[ment] for not more than 1 year”
and/or a fine of up to $100,000, while the latter is subject
only to imprisonment for “not more than 180 days” and/or a
fine of up to $5,000. See id.; 18 U.S.C. §§ 3559(a)(6)–(7),
3571(b)(5)–(6). As Appellants note, the information here
affirmatively alleged that each of the charged regulatory
violations was committed “knowingly.” Accordingly, if
§ 4(f) of the NWRSAA is the relevant criminal provision
here, then the maximum sentence of imprisonment was one
year and Appellants were entitled to a jury trial. Blanton,
489 U.S. at 542.
2
Appellants make a series of arguments as to why the only
criminal provision that can properly be applied here is § 4(f)
of the NWRSAA, to the exclusion of § 4 of the RRA. None
are persuasive.
First, Appellants contend that, by its terms, § 4 of the
NWRSAA must be understood as superseding § 4 of the
62 USA V. EHMER

RRA. In making this argument, Appellants point to § 4(a)(1)
of the NWRSAA, which provides, as pertinent here:

For the purpose of consolidating the
authorities relating to the various categories
of areas that are administered by the
Secretary for the conservation of fish and
wildlife, including species that are threatened
with extinction, all lands, waters, and
interests therein administered by the
Secretary as wildlife refuges, areas for the
protection and conservation of fish and
wildlife that are threatened with extinction,
wildlife ranges, game ranges, wildlife
management areas, or waterfowl production
areas are hereby designated as the “National
Wildlife Refuge System” (referred to herein
as the “System”), which shall be subject to
the provisions of this section, and shall be
administered by the Secretary through the
United States Fish and Wildlife Service.

16 U.S.C. § 668dd(a)(1) (emphasis added). Appellants
assert that, by providing for the “consolidat[ion]” of
authorities concerning areas within the National Wildlife
Refuge System and by stating that all such areas “shall be
subject to the provisions of this section,” § 4(a)(1) of the
NWRSAA “supersedes any other provision” on the same
subject, such as § 4 of the RRA. This contention fails.
Appellants’ claim that § 4 of the NWRSAA supersedes
§ 4 of the RRA is refuted by the text of the NWRSAA itself.
Section 4(i) of the NWRSAA expressly states that “[n]othing
in this section shall be construed to amend, repeal, or
 USA V. EHMER 63

otherwise modify the provision of the Act of September 28,
1962 (76 Stat. 653; 16 U.S.C. 460k–460k-4) which
authorizes the Secretary to administer the areas within the
System for public recreation.” 16 U.S.C. § 668dd(i). The
cross-referenced statute that is thereby expressly preserved
is none other than the RRA, including specifically § 4 (16
U.S.C. § 460k-3). Moreover, § 4(i) of the NWRSAA further
states that the provisions of § 4 of the NWRSAA “relating to
recreation shall be administered in accordance with the
provisions of said Act,” viz., the RRA. See 16 U.S.C.
§ 668dd(i). Thus, far from superseding the RRA, the
NWRSAA both (1) expressly preserves the authority
provided in § 4 of that statute and (2) directs that, to the
extent that both statutes confer authority to regulate
“recreation” in the National Wildlife Refuge System, both
statutes must be complied with. And, as we have explained,
the three particular core regulatory provisions at issue here—
which prohibit trespassing, property destruction and
removal, and tampering with equipment or vehicles—all fall
within that area of overlap, because they are reasonably
related to ensuring that members of the public will
physically enter a refuge only if authorized to do so, and that,
while they are in the refuge, they do not engage in behavior
that could impede the purposes of the refuge.
Appellants nonetheless assert that, in its current form,
§ 4 of the RRA applies only to “National Conservation
Areas” administered by the BLM under § 2002(b)(1)(B) of
the Omnibus Public Land Management Act of 2009, Pub. L.
No. 111-11, 123 Stat. 991, 1095 (2009), which is classified
to 16 U.S.C. § 7202(b)(1)(B). Nothing in the relevant
statutes supports this view. As amended, the RRA applies
to all “areas within the National Wildlife Refuge System,
national fish hatcheries, and other conservation areas
64 USA V. EHMER

administered by the Secretary of the Interior for fish and
wildlife purposes.” 16 U.S.C. § 460k (emphasis added).
Even assuming that Appellants are correct in suggesting that
National Conservation Areas managed by the BLM
constitute “other conservation areas administered by the
Secretary of the Interior for fish and wildlife purposes” (a
point we do not decide), the text of the RRA still
unambiguously applies to all “areas within the National
Wildlife Refuge System,” and that System indisputably
includes the Malheur NWR. Moreover, under the
NWRSAA, that System (including the Malheur NWR) is
“administered by the Secretary through the United States
Fish and Wildlife Service.” Id. § 668dd(a)(1).
Appellants also argue that the RRA cannot be invoked
here because it applies only to certain areas within the
National Wildlife Refuge System and not to the entire
System. This argument fails. By definition, the “National
Wildlife Refuge System” designated in § 4(a)(1) of the
NWRSAA consists of all of the “various categories of areas
that are administered by the Secretary for the conservation
of fish and wildlife,” including “[1] all lands, waters, and
interests therein administered by the Secretary as wildlife
refuges, [2] areas for the protection and conservation of fish
and wildlife that are threatened with extinction, [3] wildlife
ranges, [4] game ranges, [5] wildlife management areas, or
[6] waterfowl production areas.” 16 U.S.C. § 668dd(a)(1)
(emphasis added). Accordingly, when § 1 of the RRA refers
to “areas within the National Wildlife Refuge System,” id.
§ 460k, it is referring to any of these six enumerated
“categories of areas,” id. § 668dd(a)(1), and it grants the
Secretary authority “to administer such areas or parts
thereof for public recreation,” id. § 460k (emphasis added).
Contrary to what Appellants contend, the RRA thus applies
 USA V. EHMER 65

to the entirety of any such “area”—including a “wildlife
refuge[]”—and any “parts thereof.”
Appellants argue that, notwithstanding the breadth of the
statutory text of the RRA, that statute’s more limited scope
is confirmed by the fact that (1) it is “found in Subchapter
LXVIII” of Title 16 of the United States Code and (2) that
subchapter “is entitled ‘National Conservation Recreational
Areas,’ not National Wildlife Refuges.” But as noted earlier,
Title 16 has never been enacted as positive law, see supra
note 10, and the enacted text of the RRA, as amended,
contains no headings at all. 11 The decision to place the RRA
into a “Subchapter LXVIII” and to add the heading
“National Conservation Recreational Areas” was thus not
made by Congress, but only by the “Office of the Law
Revision Counsel” of the House of Representatives, which
by statute has the task of assembling the United States Code,
“including those titles which are not yet enacted into positive
law.” 2 U.S.C. § 285b(3). Because the features on which
Appellants rely are merely editorial additions made by a
congressional office, and not any part of a statute enacted by
Congress, they are entitled to no weight and provide no
grounds for disregarding the clear statutory text.
Finally, Appellants point to the Code of Federal
Regulation’s (“CFR”) “Parallel Table of Authorities and
Rules,” which is an “aid[] to users” of the CFR that is
prepared under the supervision of the Administrative
Committee of the Federal Register and is included as an
appendix to the CFR. See 44 U.S.C. § 1510(b). As

11
The current text of the RRA, as amended, is available at the website
of the Government Publishing Office. See
https://www.govinfo.gov/content/pkg/COMPS-1621/pdf/COMPS-
1621.pdf.
66 USA V. EHMER

Appellants note, that Table lists the various statutes on which
the regulations in the CFR are based, and the only entry for
16 U.S.C. § 460k-3 (§ 4 of the RRA) is “50 Part 404,” which
is a section of the CFR addressing the Papahānaumokuākea
Marine National Monument. By contrast, the Table’s entry
for 16 U.S.C. § 668dd (§ 4 of the NWRSAA) includes “50
Part[] 26” and “50 Parts . . . 27, 28”—which are the parts
that contain the regulations at issue here. This argument is
unavailing. Just as we see no basis for giving weight to
editorial additions to statutes made by a congressional office,
we perceive no basis for giving any interpretive weight to
user aids prepared under the supervision of the
Administrative Committee of the Federal Register. That
three-person committee, which consists of the Archivist of
the United States, the Director of the Government Publishing
Office, and a representative of the Department of Justice, see
44 U.S.C. § 1506(a), is not the issuer of any of the pertinent
regulations and therefore has no relevant interpretive
authority to which we arguably might give deference. Cf.
United States v. Kuzma, 967 F.3d 959, 971 (9th Cir. 2020)
(leaving open the question of whether deference would be
given to an agency’s interpretation of an “underlying
regulatory prohibition[], which [is] then enforced by a
criminal statute”).
In any event, Appellants’ argument fails because it
ultimately seeks to give weight to what is plainly a set of
underlying typographical errors. The Table on which
Appellants rely does not appear to reflect any substantive
judgment about which statutes support which regulations
(which is a further reason not to give it any weight). Rather,
it appears merely to be a mechanical compilation of
whatever statutes were cited in the underlying Federal
Register notices by which the respective regulations were
 USA V. EHMER 67

issued. The three regulations at issue here are contained in
Parts 26 and 27 of Title 50 of the CFR. The relevant 1976
Federal Register notice lists, among the authorities for Part
26, “Sec. 4, 76 Stat. 654 (16 U.S.C. 460k),” see 41 Fed. Reg.
at 9168, and among the authorities for Part 27, “Sec. 4, 76
Stat. [sic] (16 U.S.C. 460k),” see id. at 9169. The first
citation unambiguously refers to § 4 of the RRA, and the
second citation, despite omitting the intended page number
from the Statutes at Large, also appears to refer to that
section. However, in giving the parallel citation in the
unenacted Title 16 of the U.S. Code for the cited “Sec. 4”,
both citations mistakenly identify it as “(16 U.S.C. § 460k).”
Id. Section 460k is § 1 of the RRA, not § 4. The parallel
U.S. Code citations provided in the underlying Federal
Register notice are thus wrong and should have been listed
as “16 U.S.C. 460k-3.” The CFR reproduces that
typographical error by dutifully citing, as one of the
authorities for Parts 26 and 27, “16 U.S.C. § 460k.” See 50
C.F.R. Parts 26, 27. And, of course, the Table on which
Appellants rely likewise mechanically lists, under the entries
for “16 U.S.C. § 460k,” “50 Parts . . . 26, 27.” The absence
of “16 U.S.C. § 460k-3” from the CFR’s Table is thus
merely due to an undetected typographical error in the
underlying Federal Register notice. Undoubtedly, had the
correct parallel citation for § 4 of the RRA been supplied,
the Table would reflect it. Appellants’ reliance on this table
thus amounts to a flawed effort to give controlling weight to
a typographical error.
For all of these reasons, we reject Appellants’ contention
that § 4 of the NWRSAA is the exclusive authority on which
the three relevant regulations are based. On the contrary,
each of these two provisions (and potentially others as well)
68 USA V. EHMER

independently provides ample statutory authority for the
issuance of the relevant regulations.
3
Because the regulations at issue here are independently
supported by either statute, the result is the not uncommon
situation in which a prosecutor has the option to elect to
charge the same underlying violative conduct under different
criminal statutes. The only remaining question then, is
which of those options was actually charged in the
information here.
The information that constitutes the charging document
in this case cites one and only one statute as the basis for the
regulatory violations charged here, and that is “16 U.S.C.
§ 460k-3,” which is § 4 of the RRA. The title of the charging
document is “Misdemeanor Information,” and directly under
that title is the citation “16 U.S.C. § 460k-3.” Each separate
count then lists, under the title of the count, the relevant CFR
regulation, followed by the citation “16 U.S.C. § 460k-3.”
Moreover, the body of each of the charges describes the
underlying violation and then concludes with a sentence that
uses the following format (with the relevant section numbers
for each respective violated regulation added in the blank):
“All in violation of Title 50, Code of Federal Regulations,
Sections ___, and Title 16, United States Code, Section
460k-3, a Class B Misdemeanor.” A “Class B
Misdemeanor” is one in which “the maximum term of
imprisonment authorized” is “six months or less but more
than thirty days.” 18 U.S.C. § 3559(a)(7). Given this
language, it is unmistakable that the Government elected to
charge these regulatory violations only under § 4 of the
RRA, i.e., 16 U.S.C. § 460k-3, which is a Class B
misdemeanor. There is no reference whatsoever to § 4(f)(1)
 USA V. EHMER 69

of the NWRSAA, i.e., 16 U.S.C. § 668dd(f)(1), which
carries a maximum sentence of one year in prison and is a
Class A misdemeanor. See 18 U.S.C. § 3559(a)(6).
Appellants nevertheless argue that because the
information expressly charges them with “knowingly”
violating 50 C.F.R. §§ 26.21, 27.61, and 27.65, the
information must be understood as actually relying on
§ 4(f)(1) of the NWRSAA, 16 U.S.C. § 668dd(f)(1), and as
charging a Class A misdemeanor. The necessary premise of
this argument is that a scienter of “knowingly” is required
only for a violation of § 4(f)(1) of the NWRSAA and is not
an element of a violation of § 4 of the RRA, such that the
inclusion of this element describes the offense defined by the
former statute rather than the latter. Under this view, the
information’s references to “16 U.S.C. § 460k-3” and to a
“Class B Misdemeanor” would be disregarded as
typographical errors. See FED. R. CRIM. P. 7(c)(2) (“Unless
the defendant [is] misled and thereby prejudiced, neither an
error in a citation nor a citation’s omission is a ground to
dismiss the indictment or information or to reverse a
conviction.”). This contention is unavailing.
Even assuming that Appellants are correct in contending
that a scienter of “knowingly” is not an element of a violation
of § 4 of the RRA—a point we do not decide—their
argument still fails. There is no assertion here that the
information is missing any essential element of a violation
of § 4 of the RRA, but rather only that an additional
superfluous element has been included. Cf. United States v.
Bonallo, 858 F.2d 1427, 1430–31 (9th Cir. 1988) (holding
that a superficially ambiguous indictment cannot be
construed as charging an offense whose elements it omits).
The inclusion of an unnecessary additional allegation is
insufficient to outweigh the overwhelming textual evidence
70 USA V. EHMER

that the information here, on its face, reflects an election to
charge a violation of § 4 of the RRA. It is not uncommon
for charging documents, in an abundance of caution, to
include additional averments that may or may not be strictly
necessary to define the charged offense. In such cases the
additional language “may normally be treated as ‘a useless
averment’ that ‘may be ignored.’” United States v. Miller,
471 U.S. 130, 136 (1985) (quoting Ford v. United States,
273 U.S. 593, 602 (1927)). Regardless of whether a scienter
of “knowingly” is a required element of an offense under § 4
of the RRA, the inclusion of that allegation in the
information does not detract from the clear intendment of the
document to charge only a violation of that statute and not a
violation of § 4(f)(1) of the NWRSAA. See United States v.
Thompson, 990 F.3d 680, 683–84 (9th Cir. 2021) (holding
that an indictment’s inclusion of unnecessary allegations of
“overt acts” in charging a wire-fraud conspiracy offense
under 18 U.S.C. § 1349 did not mean that the indictment
should be construed as instead relying on the general
conspiracy statute, 18 U.S.C. § 371, which (unlike § 1349)
requires an overt act).
We therefore hold that Appellants were properly charged
only under § 4 of the RRA, which is a petty offense.
Accordingly, the district court correctly held that Appellants
were not entitled to a jury trial.
IV
Patrick, Ryan, and Ehmer challenge the sufficiency of
the evidence to convict them of some of the misdemeanor
charges. In reviewing this contention, we examine the
evidence in the light most favorable to the Government and
ask whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.”
 USA V. EHMER 71

United States v. Temkin, 797 F.3d 682, 688 (9th Cir. 2015)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979), in
the context of a bench trial). We conclude that the
challenged convictions were adequately supported.
As a threshold matter, these Appellants contend that the
Government should be bound by its position in the charging
information and during the bench trial that a scienter of
“knowingly” was required to convict, even under § 4 of the
RRA. They argue that they might have defended the case
differently had they known that, after the trial, the
Government might argue that (1) knowledge was not an
element of a violation of § 4 of the RRA and (2) their
violative conduct should instead be judged by an objective
standard of what a reasonable person would have known. Cf.
Musacchio v. United States, 577 U.S. 237, 244 & n.2 (2016)
(holding that sufficiency challenges are generally governed
by the correct elements of an offense, even if the
Government did not object to jury instructions that wrongly
added an element, but expressly reserving the question
whether a different result applies when the charging
document adds an unnecessary element). We need not
resolve this issue because, even assuming that a scienter of
“knowingly” was applicable here, Appellants’ challenges
still fail. The district court explicitly found, in the
alternative, that the higher scienter requirements were met as
to each of the challenged convictions, and the evidence was
sufficient to support those findings.
First, Ryan argues that the Government failed to prove
that he knowingly trespassed in violation of 50 C.F.R.
§ 26.21 on the Malheur NWR (which was referred to by the
district court as the “MNWR”). We disagree. The trial
evidence supports the district court’s finding that there were
“numerous signs around the MNWR headquarters
72 USA V. EHMER

compound that gave notice of the hours during which the
MNWR was open to the public,” including “[m]ultiple signs
clearly stat[ing] the MNWR was only open to the public
from sunrise to sunset.” The district court further found that
Ryan “arrived at the MNWR on January 16, 2016,” and
“stayed at the MNWR until January 28, 2016,” and that
finding is supported by testimony from an FBI agent at the
jury trial. Ryan argues that the Government failed to present
evidence excluding the possibility that he left the refuge
before sunset each day, as he suggests “members of the
media or curious visitors” did. But as the district court
noted, a video of a meeting at the refuge on January 26, 2016
indicates that Ryan did remain past sunset that day.
Moreover, there was evidence that Ryan was formally
assigned to one of the armed security teams at the refuge,
and that fact further supports a reasonable inference that he
remained at the refuge with the others rather than departed
before sunset each day.
Second, Ryan and Ehmer argue that the Government
failed to present sufficient evidence to prove the
information’s allegation that they knowingly used, without
authorization, “an excavator that was the property of the
United States Government,” in violation of 50 C.F.R.
§ 27.65’s prohibition on unauthorized tampering with
equipment. In making this argument, they do not contest that
the evidence was sufficient to show that they operated the
excavator, but only that there was no evidence to support a
finding that the excavator was the property of the
Government and that they subjectively knew that to be the
case. The Government suggests that, despite the
information’s allegations, it was not actually required to
prove either that the Government owned the excavator or
that Ryan and Ehmer knew that. Once again, we find it
 USA V. EHMER 73

unnecessary to resolve this issue. Even if we assume that the
Government was required to prove these additional
elements, the district court explicitly made alternative
findings with respect to them, and the evidence was
sufficient to support those findings.
As the district court noted, the presence of this large
piece of machinery at the Government-owned and
administrated refuge supported a reasonable inference that
the excavator belonged to the Government and that, like
other equipment present on the refuge grounds, it was used
by the Government in the operations of the refuge. That
conclusion was supported by testimony from the director of
the Malheur NWR, who explained that the refuge owned
“lots of heavy equipment,” including “excavators.”
Moreover, it is reasonable to infer that, by using this item of
equipment while at the Government-owned refuge, Ryan
and Ehmer were subjectively aware that the excavator
belonged to the Government.
Ryan and Ehmer claim that the district court improperly
shifted the burden of proof to them by observing that there
was “not any evidence that any individual associated with
the occupation of the MNWR brought any privately-owned
heavy construction equipment to the MNWR.” We disagree.
The district court’s comment must be read in the context of
the entirety of its ruling and the record as a whole. United
States v. Coutchavlis, 260 F.3d 1149, 1156–57 (9th Cir.
2001); see also United States v. Lozoya, 19 F.4th 1217, 1218
(9th Cir. 2021) (en banc) (per curiam). The court’s ruling
made clear that the district court accurately comprehended
that the burden of proof rested solely on the Government to
prove the required elements beyond a reasonable doubt. Its
observation as to the absence of evidence that the occupiers
brought equipment to the refuge, in context, simply reflects
74 USA V. EHMER

the court’s attentiveness to the fact that nothing in the
evidentiary record as a whole about how the occupation
unfolded gave rise to a reasonable doubt as to whether the
excavator belonged to the Government. Id.
Third, Patrick argues that the evidence was insufficient
to sustain the information’s allegation that he had knowingly
entered and started, without authorization, an “all-terrain
vehicle that was the property of the United States
Government,” in violation 50 C.F.R. § 27.65. Once again,
we will assume arguendo that the Government was required
to prove that the vehicle in question—a Dodge Durango—
was owned by the Government and that Patrick knew that it
was owned by the Government, because we conclude that
the evidence was sufficient to support the district court’s
findings as to those elements. At trial, an FBI agent testified
that the Dodge Durango was a “refuge vehicle” and that an
aerial surveillance video depicted Patrick driving it on
January 27, 2016. By that point, Patrick had been at the
Malheur NWR for 25 days. Based on the record evidence,
the district court could reasonably infer that, over the course
of his time at the Malheur NWR, Patrick became “familiar
with the government-owned vehicles and other government-
owned property that were present at the MNWR” and that he
knew this vehicle, despite its lack of markings, was one of
many Government vehicles on the refuge.
V
We turn next to several challenges raised by Patrick and
Thorn to their felony convictions, namely, (1) Patrick’s and
Thorn’s convictions for conspiracy to impede an officer of
the United States in violation of 18 U.S.C. § 372; and
(2) Thorn’s conviction for possession of a firearm in a
 USA V. EHMER 75

federal facility with intent that it be used in the commission
of a crime, in violation of 18 U.S.C. § 930(b).
A
Although it consists of a single long sentence, § 372
contains multiple clauses that describe several different
categories of proscribed conspiracies:

If two or more persons in any State, Territory,
Possession, or District conspire [1] to
prevent, by force, intimidation, or threat, any
person [i] from accepting or holding any
office, trust, or place of confidence under the
United States, or [ii] from discharging any
duties thereof, or [2] to induce by like means
any officer of the United States to leave the
place, where his duties as an officer are
required to be performed, or [3] to injure him
in his person or property [i] on account of his
lawful discharge of the duties of his office, or
[ii] while engaged in the lawful discharge
thereof, or [4] to injure his property so as to
molest, interrupt, hinder, or impede him in
the discharge of his official duties, each of
such persons shall be fined under this title or
imprisoned not more than six years, or both.

18 U.S.C. § 372. Patrick and Thorn were indicted under
what we have designated as clause [1][ii], which imposes
criminal punishment on any person who conspires with
another “to prevent, by force, intimidation, or threat, any
person . . . holding any office, trust, or place of confidence
under the United States, . . . from discharging any duties
thereof.” 18 U.S.C. § 372. Patrick and Thorne contend that
76 USA V. EHMER

the district court erred in declining to instruct the jury that
the phrase “person . . . holding any office, trust, or place of
confidence under the United States” refers only to those
“Officers of the United States” whose appointments are
governed by the Constitution’s Appointments Clause, U.S.
CONST. art. II, § 2, cl. 2. 12 The error was prejudicial, they
contend, because the trial evidence “indicated that all sixteen
of the impacted federal workers” were merely “employees”
of the U.S. Fish and Wildlife Service (“USFWS”) and not
“Officers” within the meaning of the Appointments
Clause. 13 Reviewing de novo, see United States v. Perdomo-
Espana, 522 F.3d 983, 986 (9th Cir. 2008), we hold that the
district court did not err in declining the requested jury
instruction.
Patrick and Thorn rely on longstanding authority holding
that “the words ‘officer of the United States,’ when
employed in the statutes of the United States, is [sic] to be
taken usually to have the limited constitutional meaning”
specified by the Appointments Clause. Steele v. United
States, 267 U.S. 505, 507 (1925); see also United States v.
Germaine, 99 U.S. 508, 510 (1879). However, Steele also
noted that the Court, “in consideration of the context, has
sometimes given [the phrase] an enlarged meaning, and has
found it to include others than those appointed by the
President, heads of departments, and courts.” 267 U.S. at

12
The Appointments Clause specifies that “Officers of the United States”
shall be appointed by the President, “by and with the Advice and Consent
of the Senate,” except that Congress “may by Law” provide that “inferior
Officers” may be appointed by “the President alone,” “the Courts of
Law,” or “Heads of Departments.” U.S. CONST., art. II, § 2, cl. 2.
13
The Government does not contest that the USFWS employees whose
duties were impeded here were not “Officers” appointed in conformity
with the Appointments Clause.
 USA V. EHMER 77

507. Considering the relevant language from § 372 in
context, we conclude that it extends beyond those officers
who must be appointed in conformity with the Appointments
Clause.
As an initial matter, the relevant clause of § 372 under
which Patrick and Thorn were charged does not use the
phrase “officers of the United States.” Instead, it refers to
“any person . . . holding any office, trust, or place of
confidence under the United States.” 18 U.S.C. § 372
(emphasis added). 14 Thus, even assuming that Patrick and
Thorn are correct in contending that “person . . . holding any
office . . . under the United States” should be construed as
being essentially equivalent to the phrase “officer of the
United States”—a point we do not decide—the language of
this clause of § 372 contains additional terms that go beyond
the holders of an “office.” In this respect, the relevant clause
differs notably from the other three clauses of § 372, all of
which are limited to actions directed at an “officer of the
United States.” See id. (referring, in the second clause, to
“any officer of the United States” and then, in the third and
fourth clauses, referring back to that phrase by using “him”
and “his”). As a result, the predicate for applying Steele’s
presumption—i.e, that the statute’s reach is defined by “the
words ‘officer of the United States,’” see 267 U.S. at 507

14
As noted earlier, the relevant clause proscribes a conspiracy “to
prevent, by force, intimidation, or threat, any person [i] from accepting
or holding any office, trust, or place of confidence under the United
States, or [ii] from discharging any duties thereof.” 18 U.S.C. § 372.
The phrase “any duties thereof” refers back to the duties of “any office,
trust, or place of confidence under the United States.” Under the relevant
subclause, therefore, the person being prevented from discharging his or
her duties is a “person . . . holding any office, trust, or place of
confidence under the United States.”
78 USA V. EHMER

(citation omitted)—is absent in the relevant clause of § 372.
And Congress’s conspicuous choice not to use the simple
phrase “officer of the United States” (or a substantially
equivalent phrase) in all four clauses of § 372 presumptively
signifies an intention to give the first clause a different
scope. See Russello v. United States, 464 U.S. 16, 23 (1983)
(“[W]here Congress includes particular language in one
section of a statute but omits it in another section of the same
Act, it is generally presumed that Congress acts intentionally
and purposely in the disparate inclusion or exclusion.”
(citation omitted)).
The particular words used in the first clause of § 372
reinforce the conclusion that the clause is not limited to
“officers of the United States” within the meaning of the
Appointments Clause. The distinctive phrase “holding any
office, trust, or place of confidence” in clause [1][i] of § 372
(using the bracketing we have supplied earlier) traces back
nearly verbatim to an 1861 statute passed shortly after the
Civil War began. See Chap. 33, 12 Stat. 284 (July 31, 1861)
(proscribing, inter alia, any conspiracy “by force, or
intimidation, or threat to prevent any person from accepting
or holding any office, or trust, or place of confidence, under
the United States”). 15 Extending back well before 1861, and
even continuing to this day, leading dictionaries have
included, among the definitions of the word “place,” an

15
Section 2 of the Civil Rights Act of 1871 added clauses [1][ii], [2], [3],
and [4], see Chap. 22, 17 Stat. 13, § 2 (Apr. 20, 1871), and the relevant
portion of § 2 of that Act, as carried forward in subsequent statutes, was
ultimately codified, with only minor changes, in § 372 when title 18 of
the U.S. Code was enacted into positive law in 1948. Section 2 of that
Civil Rights Act also contained language creating a remedy of a civil
suit, and that language (now contained in § 1980 of the Revised Statutes)
is classified to 42 U.S.C. § 1985(1).
 USA V. EHMER 79

“[o]ffice; publick character or employment.” Place,
SAMUEL JOHNSON, DICTIONARY OF THE ENGLISH LANGUAGE
(1843 ed.); see also Place, 2 NOAH WEBSTER, AMERICAN
DICTIONARY OF THE ENGLISH LANGUAGE (1828 ed.) (“NOAH
WEBSTER”) (“Office; employment; official station”); Place,
WEBSTER’S SECOND NEW INTERNATIONAL DICTIONARY
(1939) (“WEBSTER’S SECOND”) (“Official status or position;
an office or employment, specif. in public service”); Place,
AMERICAN HERITAGE DICTIONARY (5th ed. 2018) (“A job,
post, or position”). Likewise, the word “trust” is not limited
to formal legal devices for holding property interests but has
also long been used to refer more generally to “[t]hat which
is committed to one’s care,” see Trust, NOAH WEBSTER,
supra, or a “responsible charge or office,” see Trust,
WEBSTER’S SECOND, supra. The use of these additional
terms, which refer more generally to public employment,
confirms that this clause of § 372 is not strictly limited to
those “Officers of the United States” whose appointments
are governed by the Appointments Clause.
Accordingly, the district court did not err in instructing
the jury on this point.
B
As noted earlier, one of the elements of the § 372 charge
against Patrick and Thorn is that they conspired to prevent
USFWS employees from discharging their duties “by force,
intimidation, or threat.” 18 U.S.C. § 372. In addressing this
element, the district court gave the following instruction to
the jury:

In order for speech or expressive conduct to
qualify as “intimidation” or a “threat” in this
context, [1] the speaker or actor must intend
80 USA V. EHMER

his or her words or conduct to intimidate or
to be a threat, and [2] those words or conduct
must also be such that a reasonable person
hearing or observing them would foresee that
they would be interpreted as a serious
expression of intent to harm or assault.

Although they concededly did not preserve an objection to
this instruction below, Patrick and Thorn contend on appeal
that the instruction constitutes plain error. See FED. R. CRIM.
P. 30(d), 52(b). Specifically, Patrick and Thorn argue that,
by including language that defines “threats” and
“intimidation” under an “objective ‘reasonable person’
standard,” the district court’s instruction contravenes the
Supreme Court’s decision in Elonis v. United States, 575
U.S. 723 (2015). This contention is meritless.
In Elonis, the defendant posted a variety of violently
themed posts on Facebook, several of which referenced
violence against his ex-wife and law enforcement agents.
575 U.S. at 726–31. He was indicted for violating 18 U.S.C.
§ 875(c), which proscribes transmitting, in interstate
commerce, “any communication containing any threat . . . to
injure the person of another.” Id. at 726. At his trial, Elonis
asked the court to instruct the jury that “the government must
prove that he intended to communicate a true threat,” but the
district court denied that request. Elonis, 575 U.S. at 731.
The jury was instead instructed that “[a] statement is a true
threat when a defendant intentionally makes a statement in a
context or under such circumstances wherein a reasonable
person would foresee that the statement would be interpreted
by those to whom the maker communicates the statement as
a serious expression of an intention to inflict bodily injury or
take the life of an individual.” Id. (emphasis added). The
 USA V. EHMER 81

Supreme Court held that it was “error” to instruct the jury
that “the Government need prove only that a reasonable
person would regard Elonis’s communications as threats.”
Id. at 740 (emphasis added). Because the “threatening
nature of the communication” is “‘the crucial element
separating legal innocence from wrongful conduct,’” a
culpable scienter must presumptively be shown with respect
to that element. Id. at 737 (citation omitted); see also Rehaif
v. United States, 139 S. Ct. 2191, 2195 (2019) (stating that,
in construing a criminal statute, the Court “start[s] from a
longstanding presumption, traceable to the common law,
that Congress intends to require a defendant to possess a
culpable mental state regarding ‘each of the statutory
elements that criminalize otherwise innocent conduct’”
(citation omitted)). Accordingly, the Court held that, in a
prosecution under § 875, the “defendant’s mental state”
must also be considered, and the requisite mens rea would
be satisfied “if the defendant transmits a communication for
the purpose of issuing a threat, or with knowledge that the
communication will be viewed as a threat.” 16 Elonis, 575
U.S. at 740. Because the instructions at Elonis’s trial
eliminated this scienter requirement, the Court reversed his
conviction. Id.
We agree that, under § 372, “the crucial element
separating legal innocence from wrongful conduct,” Elonis,
575 U.S. at 737 (citation omitted), is that the defendant
conspires to prevent an employee from discharging his or her
duties “by force, intimidation, or threat,” see 18 U.S.C.

16
Because the issue had not been briefed in Elonis’s case, the Court
declined to consider whether a lesser mental state of “recklessness”
would also be sufficient. 575 U.S. at 740. The Court subsequently
answered that question in the affirmative in Counterman v. Colorado,
600 U.S. 66 (2023).
82 USA V. EHMER

§ 372. It follows that, absent some textual indication to the
contrary, a “culpable mental state” must presumptively be
shown with respect to that element. Rehaif, 139 S. Ct. at
2195 (citation omitted). There is no such language in § 372
that would rebut this presumption of scienter, and Patrick
and Thorn are therefore correct insofar as they contend that
the Government was required to establish scienter with
respect to the use of “intimidation” or “threat[s].” But they
overlook that the district court’s instruction did include such
a scienter requirement, because it expressly stated that, “[i]n
order for speech or expressive conduct to qualify as
‘intimidation’ or a ‘threat’ in this context, the speaker or
actor must intend his or her words or conduct to intimidate
or to be a threat” (emphasis added). That instruction thus
fully complied with the relevant holding of Elonis.
As Patrick and Thorn note, the district court’s instruction
further provided that “speech or expressive conduct” would
not qualify as a “threat” or “intimidation” unless the jury
also found that “those words or conduct [were] such that a
reasonable person hearing or observing them would foresee
that they would be interpreted as a serious expression of
intent to harm or assault.” See also United States v. Keyser,
704 F.3d 631, 638 (9th Cir. 2012). But contrary to what
Patrick and Thorn contend, this reliance on an objective
standard in describing an additional element that must be
met with respect to the defendant’s “speech or expressive
conduct” does not in any way detract from the district court’s
inclusion of a fully sufficient subjective scienter
requirement. On the contrary, the caselaw confirms that the
district court correctly included both elements. We have
construed a similar criminal prohibition proscribing, inter
alia, “threat[s]” to assault certain federal officials “with
intent to impede, intimidate, or interfere with such official
 USA V. EHMER 83

. . . while engaged in the performance of official duties,” in
18 U.S.C. § 115(a)(1)(B), as extending only to an
objectively defined “true threat,” i.e., one that “a reasonable
person would foresee . . . would be interpreted by those to
whom the maker communicates the statement as a serious
expression of intent to harm or assault.” United States v.
Orozco-Santillan, 903 F.2d 1262, 1265 (9th Cir. 1990); see
also Planned Parenthood of the Columbia/Willamette, Inc.
v. Am. Coalition of Life Activists, 290 F.3d 1058, 1080 (9th
Cir. 2002) (en banc) (reaffirming that this language from
Orozco-Santillan “is an accurate statement of our law, and is
faithful to the objective standard we use for determining
whether a statement is a true threat”). By requiring both the
sort of true threat required under Orozco-Santillan and a
subjective scienter that is constitutionally sufficient under
Elonis and Counterman, the district court’s instructions here
correctly defined the scope of “threats” and “intimidation”
required by § 372.
C
Patrick and Thorn further challenge their § 372
convictions on the grounds that the district court committed
a variety of evidentiary errors at trial. None of the asserted
errors warrants reversal.
1
The district court did not abuse its discretion in
admitting, over Patrick’s and Thorn’s objections, an excerpt
of an interview with Ryan Bundy conducted by a reporter
from Oregon Public Broadcasting (“OPB”).
On January 9, 2016, towards the beginning of the
occupation, OPB posted on its website a nearly seven-
minute audio report that included excerpts of a telephonic
84 USA V. EHMER

interview of Ryan Bundy that had been conducted by an
OPB reporter (John Sepulvado). The Government sought to
admit at trial a two-minute, 34-second portion of the
interview (“Exhibit 23”), which was drawn from that report.
During the interview, Bundy told Sepulvado that he believed
that the Malheur NWR is “where the charges came from to
destroy the Hammonds”; that the Malheur NWR is
“destroying the lives and libert[y] and . . . property rights” of
local ranchers; and that “by being here, it puts a stop to that.”
After Sepulvado noted that the Malheur NWR’s federal
employees were still able to work from home, Bundy
replied, “Well, perhaps. You know, this whole system isn’t
perfected yet.” Bundy emphasized that the occupiers “are
not here to hurt people, not even the people that work here,”
and that “no threats of any kind have gone out to anybody,
any individual.” But when Sepulvado asked him why he
could not just “do all this but without the guns,” Bundy
replied, “because the lack of seriousness.” At trial, the
Government used Bundy’s interview to argue that Patrick
and Thorn thought that “without the guns there would be a
lack of seriousness.” The Government also argued that, by
responding to a question about USFWS employees working
from home with the statement “that the system hasn’t been
perfected yet,” Bundy confirmed that “one of the objects of
the conspiracy” was to “keep[] these employees from doing
their jobs.”
Prior to trial, the Government attempted to subpoena
Sepulvado in order to lay a foundation for the admission of
the interview excerpts, but OPB successfully moved to
quash the subpoena on First Amendment grounds. Notably,
during the course of the proceedings concerning the motion
to quash, OPB’s attorney stated that neither OPB nor
Sepulvado had retained a copy of the complete, unedited
 USA V. EHMER 85

telephonic interview with Ryan Bundy and that, as a result,
all that remained was the portion contained in the January 9,
2016 report posted on OPB’s website. The district court
further ruled that, because Ryan Bundy was still facing
criminal charges in Nevada at the time, his Fifth Amendment
privilege rendered him unavailable to lay a foundation for
the interview excerpts. The court nonetheless admitted the
excerpts at trial. As to the issue of authentication, the court
concluded that the testimony of the FBI agent who had
downloaded the interview from OPB’s website (Ron
Walker) was sufficient. The court also rejected the defense’s
additional evidentiary objections to the admission of Exhibit
23. On appeal, Patrick and Thorn challenge the district
court’s rejection of several of their objections, but their
arguments are unavailing.
First, the district court did not abuse its discretion in
concluding that there was a sufficient foundation for the
admission of the excerpts of Sepulvado’s telephonic
interview with Ryan Bundy. As the court explained, Walker
had personally downloaded the OPB report containing the
interview directly from the OPB website, which was
sufficient to authenticate it as an OPB news report. Cf. FED.
R. EVID. 902(6) (stating that “[p]rinted material purporting
to be a newspaper or periodical” is self-authenticating). The
court did not clearly err in finding that, as a result of the
investigation, Walker had sufficient familiarity with Ryan
Bundy’s voice that Walker could identify him as the person
being interviewed. Although Walker concededly lacked any
personal knowledge as to the identity of the interviewer, the
portion of the interview played to the jury did not identify
the interviewer’s name, and the transcript supplied to the
jury merely identified him as “OPB Interviewer.” The
district court reasonably concluded that the other speaker’s
86 USA V. EHMER

role as “an OPB interviewer” could be circumstantially
inferred from the fact that the interview excerpt was derived
from an OPB report. Although there was no testimony from
OPB as to the editing process used to select the interview
excerpts that were contained in the report, there is no
obvious disjointedness in either the substance of what was
recounted or the sound of the audio recording, and it was
reasonable to infer, in the absence of any evidence to the
contrary, that the pairing of question and answers was
genuine. The district court’s predicate findings on this score
are not clearly erroneous, and there was no abuse of
discretion in the court’s conclusion that a sufficient
foundation had been laid for the admission of Exhibit 23. 17
Second, the district court correctly rejected Patrick’s and
Thorn’s argument that admission of Exhibit 23 without any
authenticating testimony from Sepulvado deprived them of
their rights under the Confrontation Clause. The
Confrontation Clause prohibits the introduction, in a
criminal trial, of testimonial statements by non-testifying
witnesses. See, e.g., Lucero v. Holland, 902 F.3d 979, 987
(9th Cir. 2018). In invoking the clause here, Patrick and

17
We reject Patrick’s and Thorn’s contention that, under United States
v. King, 587 F.2d 956 (9th Cir. 1978), the Government was required “to
produce clear and convincing evidence of authenticity and accuracy as a
foundation for the admission of recordings.” Id. at 961 (simplified)
(emphasis added). To the extent that King was addressing the
requirements for foundation under the then-recently adopted Federal
Rules of Evidence (which King never mentions), its adoption of a clear
and convincing standard is irreconcilable with the Supreme Court’s
subsequent decision in Bourjaily v. United States, 483 U.S. 171 (1987),
which confirmed that the preliminary determinations of admissibility
made by a court under Rule 104(a) are to be made under a
“preponderance of the evidence” standard.” Id. at 175–76. The district
court therefore properly applied that standard here.
 USA V. EHMER 87

Thorn do not contend that the statements of Sepulvado that
were contained in the interview of Bundy were
“testimonial,” so as to trigger the applicability of the clause.
Nor do they contend that the statements of Bundy that are
contained in Exhibit 23 were testimonial. Rather, their
argument is that, by admitting Exhibit 23 without an
adequate foundation, the district court’s ruling was the
“functional equivalent” of allowing Sepulvado’s
“foundational statements or testimony” to be received
unchallenged. This argument fails because its premise is
wrong: as we have explained, there was an adequate
foundation for the admission of Exhibit 23 even in the
absence of Sepulvado’s testimony. Moreover, to the extent
that the receipt of Exhibit 23 into evidence might arguably
be thought to communicate Sepulvado’s editorial judgments
as to what was noteworthy in the larger interview he had with
Bundy, any such implicit communication would not qualify
as “testimonial.” We apply a “primary purpose” test in
evaluating whether a statement is testimonial for purposes of
the Confrontation Clause, see Lucero, 902 F.3d at 989.
There is simply no basis in the record to conclude that OPB’s
primary purpose in excerpting the Bundy interview was “for
use as evidence at a future criminal trial,” United States v.
Fryberg, 854 F.3d 1126, 1136 (9th Cir. 2017) (citation
omitted).
Third, the district court did not abuse its discretion in
concluding that Ryan Bundy’s statements during the
interview were admissible as co-conspirator statements
under Rule 801(d)(2)(E). See United States v. Saelee, 51
F.4th 327, 339 n.4 (9th Cir. 2022) (“[W]e review for an
abuse of discretion the district court’s decision to admit
coconspirators’ statements, and review for clear error the
district court’s underlying factual determinations that a
88 USA V. EHMER

conspiracy existed and that the statements were made in
furtherance of that conspiracy.” (citations omitted)). Under
that Rule, “a statement is not hearsay if it is ‘offered against
an opposing party’ and was ‘[1] made by the party’s
coconspirator [2] during and in furtherance of the
conspiracy.’” Id. at 342 (quoting FED. R. EVID.
801(d)(2)(E)). Patrick and Thorn challenge the district
court’s finding only as to the second requirement—viz., that
Bundy’s statements were made in furtherance of the alleged
§ 372 conspiracy—but we conclude that this finding was not
clearly erroneous. The district court reasonably concluded
that Bundy sought to “further the goals of the occupation”
by describing to Sepulvado—a member of the news media—
both the group’s objectives (i.e., to “put[] a stop” to the
activities of “this facility,” which were “destroying the lives
and liberties” of those nearby) and the group’s reason for
using firearms (i.e., a failure to carry firearms would show a
“lack of seriousness”). By publicly communicating the
group’s determination to stop the Malheur NWR’s activities
and the group’s belief that carrying firearms demonstrated
their “seriousness” on that score, Bundy’s public statements
could reasonably be viewed as furthering the conspiracy by:
(1) shoring up the morale and determination of the group and
(2) communicating a warning to USFWS employees that
they would face armed resistance if they tried to return. To
be sure, as Patrick and Ryan note, Bundy’s comments could
also be given a different construction, but the district court’s
view of the matter was reasonable and we therefore cannot
set it aside. See Brnovich v. Democratic Nat’l Comm., 141
S. Ct. 2321, 2349 (2021) (“Where there are two permissible
views of the evidence, the factfinder’s choice between them
cannot be clearly erroneous.” (citation omitted)).
 USA V. EHMER 89

Fourth, the district court properly rejected Patrick’s and
Thorn’s argument that admission of Exhibit 23 was
inconsistent with the best evidence rule, see FED. R. EVID.
1002. As we have explained, there was an adequate
foundation to conclude that Exhibit 23 was an authentic
“duplicate” of the excerpted portions of the OPB report that
was posted on the OPB website, and it was therefore
admissible under Rule 1003’s exception to Rule 1002’s best
evidence rule. See FED. R. EVID. 1003 (“A duplicate is
admissible to the same extent as the original unless a genuine
question is raised about the original’s authenticity or the
circumstances make it unfair to admit the duplicate.”).
Patrick and Thorn contend, however, that the relevant
“original” is the entire OPB interview with Bundy, and that
the absence of the remainder of the interview makes it
“unfair to admit the duplicate.” See id., advis. comm. note
(1972 proposed rule) (“Other reasons for acquiring the
original may be present when only a part of the original is
reproduced and the remainder is needed for cross-
examination or may disclose matters qualifying the part
offered or otherwise useful to the opposing party.”). But to
the extent that the full OPB interview with Bundy were
deemed to be the relevant “original,” the admission of
Exhibit 23 would then be covered by the different exception
to the best evidence rule contained in Rule 1004(a), which
provides that “[a]n original is not required and other
evidence of the content of a writing, recording, or
photograph is admissible if: (a) all the originals are lost or
destroyed, and not by the proponent acting in bad faith.” See
FED. R. EVID. 1004(a). Given OPB’s explicit representation,
at the hearing on the motion to quash, that the original
complete interview no longer existed, the district court had
ample ground to conclude that the original had been lost or
90 USA V. EHMER

destroyed and that its absence was “[n]ot through any fault
of the Government” or of Patrick or Thorn. See FED. R.
EVID. 104(a) (noting that, in making preliminary
determinations relevant to admissibility, “the court is not
bound by evidence rules, except those on privilege”); see
also United States v. Workinger, 90 F.3d 1409, 1415 (9th
Cir. 1996) (holding that the “best evidence rule was not
violated” when the original recording of a deposition had
been erased by the counsel who took the deposition “in the
ordinary course of his business and not at the behest of the
government”).
Fifth, for similar reasons, the district court did not abuse
its discretion in concluding that the so-called rule of
completeness in Rule 106 did not bar admission of Exhibit
23. That rule provides that, where (as here) a portion of a
recording is introduced, the opponent may insist on the
contemporaneous introduction of “any other part” of that
“recorded statement” (or any other recorded statement) that
ought in fairness “to be considered at the same time.” See
FED. R. EVID. 106. But Patrick and Thorn did not ask for
any additional part of the OPB report, or the interview of
Bundy contained within it, to be introduced together with
Exhibit 23. Their objection, rather, is that, because the
remainder of the original underlying interview with Bundy
“had not been preserved,” it “was impossible for either the
parties or the trial court to determine whether Bundy’s
statement, as proffered by the government, had been unfairly
excerpted from the original recording.” This argument
misconceives the role of Rule 106. The rule, by its terms,
does not exclude any evidence, but merely provides that, if
all or part of a “recorded statement” is offered, then an
opponent may require that certain additional parts or
recorded statements must also be introduced
 USA V. EHMER 91

contemporaneously if fairness requires. The fact that the
additional recorded statements that the opponent would like
to offer no longer exist simply means that the opponent lacks
any additional statement to which the right of
contemporaneous introduction conferred by Rule 106 might
attach. Nothing in the language of Rule 106 says that, when
the remainder of the recorded statement does not exist, the
portion offered into evidence must be excluded. See 21A
CHARLES ALAN WRIGHT & KENNETH W. GRAHAM, JR.,
FEDERAL PRACTICE AND PROCEDURE § 5078 (2d ed. 2005)
(“Rule 106 does not give the opponent the power to prevent
the proponent from introducing an incomplete statement; it
only gives him the power to require that the statement be
completed or to complete it himself.”).
The question whether a recorded statement should be
admitted, despite its unavoidable incompleteness, instead
raises a question of undue prejudice under Rule 403. See id.
On that score, the district court did not abuse its discretion
in concluding that the probative value of Exhibit 23 was not
“substantially outweighed by a danger of . . . unfair
prejudice, confusing the issues, [or] misleading the jury.”
See FED. R. EVID. 403. As the district court explained—and
as Patrick and Thorn have themselves noted in connection
with their arguments about the co-conspirator exception to
the hearsay rule—Bundy’s statements could also be read in
a manner that was favorable to the defendants.
2
Patrick and Thorn also assert that the district court
abused its discretion in admitting testimony from various
federal employees and private citizens as to their subjective
feelings of fear and intimidation. This argument is meritless.
92 USA V. EHMER

In an order partially granting a defense in limine motion,
the district court held that evidence of Malheur NWR
employees’ “subjective impressions” would be admitted
only to the extent that it addressed “the closure of the
MNWR and the reasons for that closure.” Such evidence
was relevant, the court held, because it bore on the issues of
(1) “Defendants’ intent to impede by force, intimidation, or
threat” and (2) whether Defendants’ actions “were such that
a reasonable person observing them would interpret them as
serious expressions of intent to harm.” At trial, the district
court agreed with the Government that, by presenting
evidence concerning the peaceful nature of the protest, the
defense had opened the door to the admission of additional
evidence, on rebuttal, concerning the subjective fears
engendered by the occupation.
Renewing their argument that Elonis precluded any use
of a “reasonable person” standard in assessing whether their
actions constituted threats or intimidation, Patrick and Thorn
contend that the district court erred in declining to exclude
all such evidence. But as we have explained, see supra
section V(B), Patrick’s and Thorn’s reading of Elonis is
wrong, and this argument therefore fails.
Patrick and Thorn further argue that the district court
erred in failing to enforce the limitations of the in limine
ruling and in concluding that the defense had opened the
door to additional evidence concerning the reactions to the
Defendants’ actions at the Malheur NWR. But even
assuming that the district court did not adhere to its in limine
ruling, we find no abuse of discretion in the admission of the
challenged testimony. The testimony of Malheur NWR
employees concerning the subjective fear engendered by the
armed occupation of the refuge and the resulting perceived
inability to enter the refuge were clearly relevant to assessing
 USA V. EHMER 93

(1) whether the conspirators intended to produce that
response; and (2) whether a reasonable person would foresee
that the conspirators’ actions “would be interpreted as a
serious expression of intent to harm or assault.” See, e.g.,
United States v. Walker, 665 F.3d 212, 230 (1st Cir. 2011)
(holding that, while “not controlling,” a “‘victim’s reactions
and actions taken in response to an alleged threat’” are
“assuredly relevant” (citation omitted)). Patrick and Thorn
note that the Government also offered testimony about non-
employees’ fears—viz., (1) a neighboring rancher’s fear
when, after Ammon Bundy was arrested on January 26,
some of the occupiers leaving the Malheur NWR trespassed
near his house; and (2) an “avid birder[’s]” fear upon
encountering armed occupiers who initially blocked the
passage of her vehicle. But this further evidence of the
reactions generated by the occupiers’ behavior was likewise
relevant both to the occupiers’ intent in acting as they did
and to a reasonable person’s understanding of how that
conduct would be interpreted. There was no abuse of
discretion in allowing this testimony.
3
Patrick and Thorn also challenge the admission of certain
statements made by Thorn, as well as an oral statement made
by another participant in the occupation, Sandra Anderson.
We conclude that there was no prejudicial error.
At trial, the Government introduced a variety of
Facebook messages sent by Thorn between January 3, 2016
and February 11, 2016. The messages in the earlier time
frame consist largely of photos of Thorn and others that were
taken during the occupation and occasional very brief
comments about “standing guard,” being on “watch” and
participating in “the federal building occupation.” But
94 USA V. EHMER

beginning on February 4, after Thorn had left the Malheur
NWR, he sent a number of messages concerning his
intention to return. For example, on February 4, he posted a
message stating, “I’m also planning on going back to [B]urns
. . . . I may be planning on getting back on the refuge by
alternate means such as sneaking back on[.] I have a good
layout of the land and I’m pretty sure I can pull it off.” This
statement was promptly followed by another message
declaring, “I won’t let my brothers and sisters die by
themselves[.] I intended on m[a]king sure they have
direction and added support.” When someone else in the
chat responded, “Just remember winning is more bad ass
than dying be smart be safe,” Thorn replied, “I will [be]
leading a handful of boots to the refuge for support. I’m not
afraid of death, Liberty and Freedom replaces fear.” The
Government also introduced statements made by Thorn after
he was arrested by the FBI on February 11, 2016.
Specifically, Thorn told the arresting agents, inter alia, that
“there were thousands of members of the movement that
were educated and ready to rise up and replace him.” He
also stated that the FBI “only had jurisdiction within ten
square miles of Washington, D.C.,” and that the FBI would
be repaid “an eye for an eye” and “would have [its] hands
full.”
Patrick contends that any statements made by Thorn after
January 27 were inadmissible hearsay as to Patrick, because
on that afternoon, Patrick had walked off the refuge and
voluntarily turned himself in to the FBI. Because he had
thereby withdrawn from the conspiracy, Patrick argues, any
statements made by Thorn could not be deemed to be co-
conspirator statements as to Patrick.
We agree that “once a party withdraws from a conspiracy
subsequent statements by a coconspirator do not fall within
 USA V. EHMER 95

th[e] [hearsay] exemption” in Rule 801(d)(2)(E). See United
States v. Nerlinger, 862 F.2d 967, 974 (2d Cir. 1988). The
Government is quite wrong in suggesting that the hearsay
exception continues to apply, even as to persons who have
withdrawn from the conspiracy, so long as the declarant
remains in the conspiracy. Contrary to what the Government
contends, our decision in United States v. Williams, 668 F.2d
1064 (9th Cir. 1981), does not endorse any such view.
There, the district court concluded that Williams “had not
withdrawn from the conspiracy,” but we nonetheless faulted
the court’s application of the co-conspirator exception to a
statement of one of Williams’s codefendants, because the
court had failed to make the further “determination whether
the statement was made during and in furtherance of the
conspiracy.” Id. at 1070 (emphasis added).
When Patrick raised his objection on this score and
requested a limiting instruction, the district court rejected his
request, concluding that it was for the jury to decide, under
its instructions, whether these statements were made at a
time the conspiracy was still on-going. The court was
apparently referring to its instruction explaining to the jury
the limitations on the use of co-conspirator statements,
which instructions explained that the jury would need to
make certain findings that tracked the requirements of Rule
801(d)(2)(E). While there is no error in advising the jury
that it must follow the applicable limitations on the use of
co-conspirator statements, the threshold question whether
the requisites for admissibility under Rule 801(d)(2)(E) have
been met is a preliminary determination to be made by the
court by a preponderance of the evidence under Rule 104(a).
See Bourjaily, 483 U.S. at 175–76; United States v. Martinez
de Ortiz, 907 F.2d 629, 631–32 (7th Cir. 1990). There is no
indication in the record here that, before rejecting Patrick’s
96 USA V. EHMER

request for a limiting instruction, the district court made such
a determination as to whether Patrick had withdrawn from
the conspiracy on January 27, before Thorn made the
statements at issue. On the contrary, the court appears to
have erroneously treated that as a question for the jury to
decide.
However, even if the district court erred in this regard,
we conclude that the error was harmless. Patrick’s
participation in the § 372 conspiracy before January 27 was
amply established by other, independent evidence, and it is
unlikely that, in convicting Patrick, the jury relied on
statements made by Thorn in February. Moreover, because
those statements remained admissible as against Thorn, 18 the
only issue here was the failure to give a specific limiting
instruction expressly telling the jury that it could not use the
statements against Patrick. But, as we have noted, the
district court did give a generalized instruction about the
limitations of Rule 801(d)(2)(E), and Patrick’s counsel
invoked that instruction in explicitly arguing to the jury, in
his closing, that the statements made by others after Patrick
turned himself in on January 27 “should not be considered
against him.” On this record, we cannot say that it is more
likely than not that the jury’s verdict with respect to Patrick
was affected by the absence of the requested specific
limiting instruction. See United States v. Santini, 656 F.3d

18
Contrary to what Patrick and Thorn contend, the district court did not
commit plain error in admitting these statements against Thorn.
Although they were made after Thorn had left the refuge, the statements
were probative of Thorn’s earlier intent to impede the official duties of
USFWS personnel during the occupation. Although the statements used
strong language, the court had ample discretion to conclude that their
probative value was not “substantially outweighed” by the risk of unfair
prejudice. See FED. R. EVID. 403.
 USA V. EHMER 97

1075, 1079 (9th Cir. 2011) (“An error is harmless if it is
more probable than not that the error did not materially affect
the verdict.” (citation omitted)).
Patrick and Thorn also challenge the admission of
Exhibit 411, which was a recording of a January 28, 2016
phone call between an FBI agent and two persons
participating in the occupation, viz., Sandra Anderson and
her husband Sean. During the conversation, in which the
Andersons discussed the mechanics of surrendering, the FBI
agent told Sandra that Sean would be arrested for
“[i]nterfering with a federal employee reporting to work.”
Sandra interrupted and said, “Wait a minute. We all have
done that. Why is only he getting charged for that?”
Although the statement was probative of the understanding
of the co-conspirators as to the objective of the occupation,19
the district court’s conclusion that this statement was made
in furtherance of the conspiracy was clearly erroneous.
Sandra Anderson’s discussion of the logistics and terms of
her and her husband’s surrendering to the FBI cannot
plausibly be viewed as having been made in furtherance of
then accomplishing the conspiracy’s objective to impede the
work of USFWS personnel. Once again, however, we
conclude that any error was harmless. The independent
evidence concerning Patrick’s and Thorn’s participation in
the § 372 conspiracy was very strong, and it is more probable
than not that the admission of Sandra Anderson’s statement
did not affect the verdict. See Santini, 656 F.3d at 1079. And
as to Patrick, we reach the same conclusion as to

19
Because the statement was based on Sandra Anderson’s own
participation in the occupation and her understanding of the shared
objective that underlay the actions of the occupiers, we reject Patrick’s
and Thorn’s contention that it amounted to expert opinion testimony.
See FED. R. EVID. 602, 701.
98 USA V. EHMER

harmlessness, even considering this error together with the
failure to give a limiting instruction. See United Sates v.
Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996) (court must
consider the “cumulative effect of multiple errors”).
4
Patrick and Thorn assert that the district court erred in
admitting, under Rule 801(d)(2)(E)’s co-conspirator
statement exception to the hearsay rule, various statements
made by co-defendants who had been acquitted at the first
jury trial. The contention fails.
In United States v. Peralta, 941 F.2d 1003 (9th Cir.
1991), we held that a determination that there was a
reasonable doubt as to a person’s participation in a
conspiracy (thus warranting an acquittal) did not logically
preclude a finding that it was more likely than not that the
person was a co-conspirator (thus supporting a finding under
Rule 104(a) that the person was a member of the conspiracy
and made a statement in furtherance of it). In light of this
critical difference in the relevant standard of proof, we
squarely held that “if a district court is persuaded by a
preponderance of the evidence that the declarant and the
accused were members of a conspiracy, the declarant’s
statement is admissible notwithstanding the fact that the
court concludes that the evidence is insufficient under the
reasonable doubt standard to support a conviction of the
declarant of the crime of conspiracy.” Id. at 1007. Under
Peralta, the district court did not err.
Patrick and Thorn do not dispute this understanding of
Peralta, but they nonetheless argue that Peralta is contrary
to our earlier decision in United States v. Ratcliffe, 550 F.2d
431, 433 (9th Cir. 1976), and that we should call for en banc
rehearing to resolve the internal conflict. We conclude that
 USA V. EHMER 99

there is no live conflict within our caselaw and that Peralta
remains binding.
In Ratcliffe, we noted that the district court, after
acquitting one co-defendant (Wisdom) under Federal Rule
of Criminal Procedure 29, “instructed the jury not to
consider Wisdom’s extra-judicial statements in determining
the [remaining] defendants’ guilt.” Id. at 433. In describing
that procedural history, we remarked, without elaboration,
that “[w]hen Wisdom was acquitted on the conspiracy count
these statements became inadmissible against the other
defendants.” Id. Ultimately, however, we concluded that
we did not need to resolve whether “this inadmissible
evidence tainted their convictions” on the conspiracy
charges, and we declined to do so. 20 Id. Even assuming that
these brief comments may be considered a holding on the
Peralta issue, they are clearly irreconcilable with subsequent
Supreme Court caselaw. In Bourjaily, the Court clarified
that the standard of proof for the predicate facts concerning
co-conspirator statements is “preponderance of the
evidence,” 483 U.S. at 175–76, and in United States v. One
Assortment of 89 Firearms, 465 U.S. 354, 362 (1984), the

20
We grounded our refusal to decide that issue on the so-called
“concurrent sentence rule,” Ratcliffe, 550 F.2d at 433, under which “a
federal appellate court, as a matter of discretion, may decide that it is
unnecessary to consider arguments advanced by an appellant with regard
to his conviction under one or more counts of an indictment, if he was at
the same time validly convicted of other offenses under other counts and
concurrent sentences were imposed,” United States v. Moore, 452 F.2d
576, 577 (9th Cir. 1971). We abrogated that rule in United States v.
DeBright, 730 F.2d 1255, 1259–60 (9th Cir. 1984) (en banc); see also
Ray v. United States, 481 U.S. 736, 737 (1987) (holding that the
“concurrent sentence doctrine” has no applicability under current
sentencing law, which requires the imposition of separate financial
assessments on each count (citing 18 U.S.C. § 3013)).
100 USA V. EHMER

Court confirmed that an acquittal under the beyond-a-
reasonable-doubt standard does “not negate the possibility
that a preponderance of the evidence could show” the
defendant’s guilt for other purposes (such as, in that case,
civil forfeiture). These two subsequent Supreme Court
holdings refute any assertion that a defendant’s acquittal of
conspiracy precludes a finding that his or her statements
qualify, by a preponderance of the evidence, as co-
conspirator statements. Thus, to the extent that Ratcliffe is
contrary to Peralta, it is irreconcilable with subsequent
Supreme Court authority. See Miller v. Gammie, 335 F.3d
889, 899–900 (9th Cir. 2003) (en banc). Peralta thus is and
remains binding authority on this point.
VI
As noted earlier, Ryan and Ehmer were each convicted
of a single count of depredation of government property in
violation of 18 U.S.C. § 1361. These counts were based on
the allegation that, on January 27, 2016, Ryan and Ehmer
had used an excavator to dig two large trenches at the
Malheur NWR. Ryan and Ehmer envisioned the trenches as
a “fox hole of sorts” that would allow them “to defend
themselves” from an attack by the Government. The day
before the excavation, one of the occupiers, LaVoy Finicum,
had been shot by law enforcement personnel who intercepted
the vehicle that was carrying Finicum and others to a
meeting outside the refuge. News of Finicum’s death
quickly reached those inside the refuge, and it frightened
Ryan, who called his mother that evening to express his
anxiety as to what would happen next. As a result of their
concerns, Ryan and Ehmer began digging the trenches the
next day.
 USA V. EHMER 101

Ryan and Ehmer raise several challenges to their
convictions under § 1361, but we conclude that there was no
reversible error.
A
Before trial, Ryan and Ehmer requested that the jury be
instructed concerning their defense that “the depredation
was done in self-defense” due to a reasonable fear of
“immediate use of unlawful force” by the Government. The
district court declined to give the requested instruction,
concluding that, because the trenches took “hours to
complete,” there was no factual basis to support the view that
Ryan and Ehmer were acting in response to an “imminent
threat.” The district court did not err.
“A defendant is entitled to have the judge instruct the
jury on his theory of defense, provided that it is supported by
law and has some foundation in the evidence.” United States
v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000) (simplified). We
have recognized that a “trial court’s determination that the
evidence was insufficient to justify the giving of an
instruction on a theory of defense is a question of law” that
is subject to “de novo” review, see United States v. Ibarra-
Alcarez, 830 F.2d 968, 973 (9th Cir. 1987), but we have also
said that we review for “abuse of discretion” whether “there
is evidence upon which the jury could rationally sustain the
defense,” United States v. Ocampo-Estrada, 873 F.3d 661,
665 (9th Cir. 2017) (citation omitted). Although panels of
this court have occasionally attempted to clarify the law in
this area in favor of abuse-of-discretion review, see, e.g.,
United States v. Gomez-Osorio, 957 F.2d 636, 642 (9th Cir.
1992) (stating that there really is no conflict and that, on the
specific question of the sufficiency of the evidence to
support a theory of defense, “the court should apply an abuse
102 USA V. EHMER

of discretion standard of review”); see also United States v.
Arnt, 474 F.3d 1159, 1163 (9th Cir. 2007) (making a similar
point in the context of instructions on lesser-included
offenses), we have continued to note such a conflict, see,
e.g., United States v. Job, 871 F.3d 852, 867 (9th Cir. 2017)
(noting the conflict in the context of whether to give a
“multiple conspiracies instruction”), and we have continued
on occasion to review de novo whether a duress defense
should be precluded on the grounds that there is an
insufficient factual basis to allow it, see United States v.
Shryock, 342 F.3d 948, 987–88 (9th Cir. 2003). Any
uncertainty on this score makes no difference here because,
even applying de novo review, we conclude that the district
court properly declined to instruct the jury as to self-
defense. 21

21
Most of our sister circuits apply de novo review to the threshold
question whether the evidence is sufficient to support an instruction
concerning a defense. See, e.g., United States v. Farah, 899 F.3d 608,
615 (8th Cir. 2018); United States v. Berroa, 856 F.3d 141, 160 (1st Cir.
2017); United States v. Lomax, 816 F.3d 468, 475–76 (7th Cir. 2016);
United States v. Rampton, 762 F.3d 1152, 1156 (10th Cir. 2014); United
States v. Richardson, 532 F.3d 1279, 1290 (11th Cir. 2008); United
States v. Fedroff, 874 F.2d 178, 181–82 (3d Cir. 1989). The subset of
our cases that have applied abuse-of-discretion review have done so
based on the dubious premise that the question whether the evidence
would support a defense involves a “factual determination” to be made
by the district court and reviewed deferentially by us. See Arnt, 474 F.3d
at 1163; Gomez-Osorio, 957 F.2d at 642 (presuming that, “[l]ogically,”
we should apply deferential review in assessing “whether the required
factual foundation exists”). But as we have elsewhere explained, the
question whether “the evidence was insufficient to justify the giving of
an instruction on a theory of defense is a question of law” and not a
factual determination. United States v. Weitzenhoff, 35 F.3d 1275, 1290
(9th Cir. 1993); see also United States v. Baird, 712 F.3d 623, 627 (1st
 USA V. EHMER 103

In order for a defendant to raise a defense of self-defense,
he must make a “prima facie” showing as to “two elements:
(1) a reasonable belief that the use of force was necessary to
defend himself or another against the immediate use of
unlawful force and (2) the use of no more force than was
reasonably necessary in the circumstances.” See United
States v. Biggs, 441 F.3d 1069, 1071 (9th Cir. 2006). If the
defendant makes this threshold showing, “the burden shifts
to the government to disprove [the defense] beyond a
reasonable doubt.” United States v. Keiser, 57 F.3d 847, 851
n.4 (9th Cir. 1995). Construing the evidence in the light
most favorable to Ryan and Ehmer, we agree with the district
court’s conclusion that they failed to make a prima facie
showing that it was “reasonable” to believe that they faced
an “immediate use of unlawful force.” Biggs, 441 F.3d at
1071. Even assuming that Ryan and Ehmer reasonably
believed that the Government might soon attempt to retake
the refuge by force, there is no basis for reasonably
concluding that, at the time that the trenches were dug, Ryan
and Ehmer then faced an “immediate use of unlawful force.”
Id. At the time they began digging, Ryan and Ehmer may
have thought that the Government might soon decide to
attack the refuge, but any such potential in-the-future action
did not confront them with an immediate use of force, much
less one that could reasonably be deemed to be unlawful.22

Cir. 2013) (holding that, because the relevant “determination entails not
differential fact-finding, but merely an inquiry into the legal sufficiency
of the evidence, the standard of appellate review should be plenary”
(simplified)).
22
We therefore have no occasion to decide whether property damage of
this kind and under these circumstances could sustain a self-defense
defense if the defendants did harbor a reasonable belief that they faced
an imminent use of unlawful force.
104 USA V. EHMER

See United States v. Urena, 659 F.3d 903, 907 (9th Cir.
2011) (citing United States v. Haynes, 143 F.3d 1089, 1090
(7th Cir. 1998), for the proposition that a threat to take action
“later that afternoon was not imminent”).
B
Ryan argues that his conviction for violating § 1361
should be reversed because the district court abused its
discretion in excluding as cumulative four of Ryan’s six
proffered character witnesses. See FED. R. EVID. 403. We
disagree.
At trial, the Sheriff of Sanders County, Montana, where
Ryan resided, testified as to Ryan’s “character for being law-
abiding,” stating that Ryan “is the least of my worries in
Sanders County.” Another resident of Sanders County, who
had known Ryan for 12–15 years, testified that Ryan was a
“[t]otally, absolutely peaceful” person and that Ryan had
helped him in conducting a large event for local veterans.
Ryan sought to call four other character witnesses, and he
made a proffer on the record as to what they would say. Two
persons who worked with Ryan on theater productions
would have testified as to his character for “peacefulness”; a
police officer from another town in Sanders County, who
had also served as a deputy sheriff for Sanders County,
would have testified to Ryan’s character as “a law-abiding
person”; and a state legislator would have attested to Ryan’s
character “for being law abiding” and “for being helpful.”
The district court declined to allow these additional
witnesses to testify, concluding that their testimony would
be cumulative.
Ryan argues that these four witnesses should have been
permitted to testify, because their testimony would have
taken only a few minutes and it was important to his good
 USA V. EHMER 105

faith defense. These points have some force, but we cannot
say that a contrary conclusion was outside the district court’s
wide discretion under Rule 403. Whether to limit the
number of character witnesses on grounds of cumulativeness
“is ‘left to the sound discretion of the [district] judge,’” and
we generally will not reverse such a ruling absent
“exceptional and compelling circumstances.” United States
v. Scholl, 166 F.3d 964, 972 (9th Cir. 1999) (citation
omitted). Given that Ryan was able to present testimony as
to his law-abiding nature from the top law enforcement
officer of his home county and testimony as to his peaceful
and helpful nature from a long-term acquaintance, we cannot
say that the district court was out of bounds in concluding
that additional testimony on these points would be
unnecessarily cumulative. See id. (finding no abuse of
discretion in limiting defendant to three character
witnesses); United States v. Henry, 560 F.2d 963, 965 (9th
Cir. 1977) (reaching same conclusion where district court
limited character evidence to two witnesses).
C
Ehmer argues that the district court violated the Speedy
Trial Act by setting his separate indictment on a single count
of depredation of Government property to be tried together
with the other charges contained in the main indictment. We
conclude that there was no reversible error.
1
In the March 8, 2016 superseding indictment that served
as the basis for the trial in this case, Ehmer was charged only
in one count, namely the § 372 conspiracy charge. However,
on December 20, 2016, a grand jury returned a freestanding
separate indictment charging Ehmer with a single count of
depredation of property in violation of 18 U.S.C. § 1361.
106 USA V. EHMER

The wording of this charge tracked nearly verbatim the pre-
existing § 1361 charge alleged against Ryan and Sean
Anderson in count six of the main superseding indictment.
Ehmer was formally arraigned on the new indictment on
January 20, 2017.
On January 19, 2017, the Government moved to join the
trial of the indictment in this second, Ehmer-only case
(which was docketed as No. 16-cr-493) with the upcoming
trial on the superseding indictment in the main case (No. 16-
cr-51), which was set for trial on February 14, 2017. Ehmer
objected that a February 14 trial date on the new indictment
would violate the Speedy Trial Act’s requirement that,
absent the defendant’s written consent, “trial shall not
commence less than thirty days from the date on which the
defendant first appears through counsel.” 18 U.S.C.
§ 3161(c)(2). On January 30, 2017, the district court granted
the Government’s motion, citing three main reasons. First,
the court held that the new indictment was functionally
equivalent to a superseding indictment, and that, under the
caselaw governing superseding indictments, it therefore did
not trigger a new 30-day minimum period. Second, the court
held that, because the new indictment had been discussed in
a status conference with all parties in case No. 16-cr-51 on
January 6, 2017, that earlier date should count as the day on
which Ehmer “first appear[ed] through counsel” for
purposes of § 3161(c)(2)’s 30-day clock. Third, the court
concluded that Ehmer suffered no prejudice, because the
Government had given ample advance warning that it
intended to seek a further indictment against Ehmer asserting
a depredation charge under § 1361. Accordingly, the court
ordered the indictment in case No. 16-cr-493 to be joined
with the indictment in case No. 16-cr-51 “for all purposes,
including trial.”
 USA V. EHMER 107

2
Section 3161 of the Speedy Trial Act establishes the time
parameters within which a trial must be conducted on an
information or indictment. Specifically, § 3161(c)(1)
provides that, “[i]n any case in which a plea of not guilty is
entered, the trial of a defendant charged in an information or
indictment” shall generally commence within a maximum of
70 days from either the filing of the charging document or
“the date the defendant has appeared before a judicial officer
of the court in which such charge is pending, whichever date
last occurs.” 18 U.S.C. § 3161(c)(1). Section 3161(h)
specifies a number of discrete time periods, such as a period
of delay resulting from a pretrial motion, that are to be
excluded from the 70-day clock, thereby extending it. See
id. § 3161(h). Section 3161(c)(2) then sets forth a
corresponding minimum period of preparation that must be
afforded to the defendant: “Unless the defendant consents in
writing to the contrary, the trial shall not commence less than
thirty days from the date on which the defendant first appears
through counsel or expressly waives counsel and elects to
proceed pro se.” Id. § 3161(c)(2).
Section 3161(c)(2)’s reference to “the trial” in describing
the minimum-timing rule is obviously a cross-reference to
“the trial” mentioned in § 3161(c)(1)’s maximum-time rule.
The latter provision describes that “trial” as “the trial of a
defendant charged in an information or indictment” in “any
case in which a plea of not guilty is entered.” Id.
§ 3161(c)(1) (emphasis added). Thus, in referencing “the
date on which the defendant first appears through counsel,”
§ 3161(c)(2) must be understood as referring to the date on
which the defendant first appeared with counsel in the “case
in which [the] plea of not guilty [was] entered.” Id.
(emphasis added). Accordingly, the resulting minimum-
108 USA V. EHMER

timing rule is that the “trial of a defendant charged in [the]
information or indictment” in that “case” must not begin
sooner than 30 days after that “first appear[ance] through
counsel” in that case. Id. § 3161(c)(2). That is why, when a
superseding indictment is filed in a case in which the
defendant has already made his first appearance through
counsel, the defendant does not get a fresh 30-day minimum
clock. See United States v. Rojas-Contreras, 474 U.S. 231,
234 (1985) (holding that, because “[t]he statute clearly fixes
the beginning point for the trial preparation period as the first
appearance through counsel,” and not the “date of the
indictment,” “Congress did not intend that the 30-day trial
preparation period begin to run from the date of filing of a
superseding indictment”).
It follows from this analysis that the district court erred
in concluding that the collateral discussion of the second
case at the January 6, 2017 status conference in the first case
qualified as the date Ehmer “first appeared through counsel”
in the second case. The relevant date that Ehmer first
appeared in the second case was at his arraignment on the
second indictment, with counsel present, on January 20,
2017. That is therefore “the date on which the defendant first
appear[ed] through counsel” in case No. 16-cr-493. To be
sure, once the Government elected to file a separate
indictment in a separate case, the district court had authority
to order that the two cases be tried together. See FED. R.
CRIM. P. 13 (“The court may order that separate cases be
tried together as though brought in a single indictment or
information if all offenses and all defendants could have
been joined in a single indictment or information.”). But
unless and until the two cases were formally consolidated for
trial under Rule 13—which did not occur here until the
district court’s January 30, 2017 order—the two cases
 USA V. EHMER 109

remained separate for purposes of the applicable statutes and
rules. And while the cases remained separate, a status
conference in the main case (No. 16-cr-51) cannot be
deemed to be the “first appear[ance] through counsel” in the
other case (No. 16-cr-493). The district court erred in
holding otherwise.
For similar reasons, the district court erred in concluding
that, for purposes of determining the start date for
§ 3161(c)(2)’s 30-day minimum clock, the indictment in the
second case should be treated as equivalent to a superseding
indictment that added an additional count to the indictment
in the first case. There is no doubt that the Government
could have chosen to file a second superseding indictment in
the first case that added the additional depredation charge
against Ehmer. See FED. R. CRIM. P. 8(a) (stating that
separate counts against a defendant may be joined in a single
indictment or information if, inter alia, they “are based on
the same act or transaction, or are connected with or
constitute parts of a common scheme or plan”). Had the
Government done so, then, under Rojas-Contreras, there
would be no new 30-day minimum clock, because Ehmer
would already have appeared with counsel in the “case” in
which his not-guilty plea was entered. 18 U.S.C.
§3161(c)(1)–(2). But for whatever reason, the Government
chose not to go that route, and it instead obtained a separate
indictment against Ehmer in a separate “case.” Moreover,
the Government did not obtain the consolidation of those
two cases until January 30, 2017, which was ten days after
Ehmer first appeared with counsel in the second case. That
subsequent consolidation could not and did not retroactively
change the date of Ehmer’s initial appearance with counsel
in the second case, which was January 20, 2017.
110 USA V. EHMER

Because Ehmer first appeared with counsel in the second
case on Friday, January 20, 2017, the trial on the indictment
in that case could not begin less than 30 days after that date,
i.e., not before Tuesday, February 21, 2017. See 18 U.S.C.
§ 3161(c)(2); see also FED. R. CRIM P. 45 (extending any
period that ends on a Saturday, Sunday, or holiday to the
next day that is not one of those). The district court therefore
violated § 3161(c)(2) by setting Ehmer’s trial on the
depredation charge for February 14, 2017.
3
Ehmer argues that, under United States v. Daly, 716 F.2d
1499, 1506 (9th Cir. 1983), abrogated on other grounds by
Rojas-Contreras, 474 U.S. at 234, 236, the district court’s
error requires automatic reversal, without regard to whether
he suffered case-specific prejudice. We reject this argument.
The Speedy Trial Act contains a provision specifying
that, “on motion of the defendant,” the indictment or
information “shall be dismissed” if the defendant “is not
brought to trial within the time limit required by section
3161(c) as extended by section 3161(h).” 18 U.S.C.
§ 3162(a)(2). As we recognized in Daly, this language’s
reference to the “time limit required by section 3161(c) as
extended,” 18 U.S.C. § 3162(a)(2) (emphasis added), “does
not appear logically to apply to a situation in which the
defendant is brought to trial too quickly,” Daly, 716 F.2d at
1506. But we concluded that we did not need to decide this
issue because, given that the defendants had failed to “move
for dismissal of the indictment,” they had “failed to comply
with an essential requirement” for triggering the automatic
sanction provided in § 3162(a)(2). Id.; see also United
States v. Mancias, 350 F.3d 800, 810 (8th Cir. 2003)
(holding expressly that § 3162(a)(2)’s automatic dismissal
 USA V. EHMER 111

remedy does not apply to violations of § 3161(c)(2)’s 30-day
minimum clock).
Although Ehmer concededly never requested that the
second indictment be dismissed, he argues that he
nonetheless sufficiently satisfied § 3162(a)(2)’s motion
requirement by explicitly objecting that the consolidated
trial date would violate § 3161(c)(2). This argument is
foreclosed by Daly. Although a formal written motion to
dismiss is not required and an oral motion will suffice, see
United States v. Alvarez-Perez, 629 F.3d 1053, 1060–61 (9th
Cir. 2010), § 3162(a)(2)’s requirement of a “motion of the
defendant” to “dismiss[]” the indictment due to a violation
of the Speedy Trial Act clearly requires some request for that
specific remedy. We therefore held in Daly that an explicit
request for a “continuance of the trial on the basis of section
3161(c)(2)” was not sufficient to satisfy § 3162(a)(2)’s
motion requirement. 716 F.2d at 1506. Under Daly, a
defendant’s objection that a contemplated course of action
would produce a Speedy Trial Act violation is not equivalent
to making a request that, if such a violation occurs, the
remedy should be dismissal of the indictment. Because “at
no time did [Ehmer] move for dismissal” of the second
indictment under § 3161(a)(2), “that remedy is not
available” to him. Id.
We are consequently left with a situation where, as in
Daly, the “Act provides no specific guidance as to the
appropriate remedy in this case.” 716 F.2d at 1506. We held
in Daly that, in such circumstances, the violation of
§ 3161(c)(2) “should be treated like an erroneously denied
motion for a continuance,” and the Act should be understood
as “essentially establish[ing] that any pretrial preparation
period shorter than 30 days is inadequate per se.” Id.
Applying that framework, we reversed the judgments against
112 USA V. EHMER

the two defendants whose trials had been set in violation of
§ 3161(c)(2)’s 30-day minimum clock. Id. The analogy to
a denial of a continuance would suggest that the defendant
must “demonstrate ‘actual prejudice’” to obtain a reversal,
see United States v. Lehman, 756 F.2d 725, 728 (9th Cir.
1985) (citation omitted), but Daly effectively establishes that
such prejudice will be presumed if “any pretrial preparation
period” is “shorter than 30 days,” 716 F.2d at 1506. Ehmer
argues that the same presumption of prejudice should be
applied here and that, under Daly, he should be granted a
new trial. We disagree.
In announcing its presumption of prejudice, Daly
addressed a situation in which the two defendants in question
lacked any opportunity to conduct pretrial preparation with
their counsel for a full 30 days, because the defendants in
question simply did not have any trial counsel at all until
their respective trial lawyers were appointed at the
appearances that triggered their 30-day clocks. Id. at 1504–
05. Similarly, in United States v. Harris, 724 F.2d 1452 (9th
Cir. 1984), abrogated on other grounds by Rojas-Contreras,
474 U.S. at 234, 236, we applied Daly’s presumption in the
context of additional new charges that were returned by a
grand jury only four days before the trial began. Id. at 1453,
1455. In both cases, the defendants lacked a full 30 days to
prepare with their counsel to defend against the charges. The
same is not true on the unique facts of this case. Although
Ehmer’s appointed counsel in the first case was not formally
appointed as counsel for the second case until January 20,
2017, the record makes clear that all parties understood that
Ehmer would have the same counsel in both matters. Indeed,
the scheduling of Ehmer’s first appearance in the second
case was delayed precisely because Ehmer’s defense counsel
in the first case requested that as a scheduling
 USA V. EHMER 113

accommodation to Ehmer. Thus, although the district court
violated § 3161(c)(2) by scheduling Ehmer’s trial on the
second indictment for February 14, 2017, this is not a
situation in which, as a result, Ehmer effectively lacked a
“pretrial preparation period shorter than 30 days.” Daly, 716
F.2d at 1506. Because that essential predicate for Daly’s
presumption is inapplicable here, we decline to apply it in
Ehmer’s case.
Ehmer alternatively contends that he can demonstrate
prejudice from the violation of § 3161(c)(2), but this
argument fails. Ehmer admits that his counsel in the first
case had a copy of the second indictment as of December 27,
2016 and that his counsel had already discussed with the
Government the scheduling of Ehmer’s formal appearance
on that indictment. Ehmer and his counsel also knew, from
a discussion of the impending indictment at a December 14,
2016 status conference, that the district court contemplated
that all charges would be tried together, and the district court
reiterated that expectation at a January 6, 2017 status
conference. Ehmer’s argument ultimately rests on the
implausible contention that, unless and until his counsel in
the first case was formally appointed in the second case, no
meaningful pretrial preparation could occur. The facts we
have recounted concerning the procedural history, and
Ehmer’s existing counsel’s awareness of the new charges,
belie this contention as a factual matter. The district court
properly concluded that, even if there was a technical
violation of § 3161(c)(2), Ehmer was not prejudiced.
Accordingly, we conclude that reversal is not warranted.
VII
Appellants Thorn and Patrick raise four challenges to the
sentences imposed on them by the district court. We briefly
114 USA V. EHMER

summarize their sentences and the bases for them before
addressing the specific objections they have raised. In
considering those objections, we review the district court’s
interpretation of the Guidelines de novo, its factual findings
for clear error, and its application of the facts to the law for
abuse of discretion. See United States v. Gasca-Ruiz, 852
F.3d 1167, 1170 (9th Cir. 2017) (en banc).
A
Thorn was convicted of two felonies—conspiracy to
impede federal officers, see 18 U.S.C. § 372, and possession
of a firearm in a federal facility with the intent that it be used
in the commission of a crime (here, the § 372 conspiracy
charge), see 18 U.S.C. § 930(b). These two counts form a
single group under the guidelines, see U.S.S.G. § 3D1.2, and
the base offense level for that group is determined under
§ 2A2.4, which governs offenses involving “obstructing or
impeding officers.” See U.S.S.G. § 2A2.4 (capitalization
omitted); see also id. § 2X1.1 (stating that the applicable
guideline for conspiracy offenses is generally “the guideline
for the substantive offense” that was the object of the
conspiracy); id. § 2K2.5(c)(1) (stating that, where a firearm
is used in another offense with a higher resulting offense
level, the guideline for that other offense should generally be
used). Accordingly, under § 2A2.4(a), Thorn’s applicable
base offense level was 10. Because Thorn’s criminal history
category was III, that base offense level would yield a
sentencing range of 10–16 months. In sentencing Thorn, the
district court applied a three-level enhancement for
threatened use of a firearm under § 2A2.4(b)(1)(B) and a
two-level enhancement as an upward departure under
application note 4 of § 3A1.4 (relating to “terrorism”
offenses). The resulting offense level of 15 produced a final
guidelines range of 24–30 months. After considering the
 USA V. EHMER 115

factors in 18 U.S.C. § 3553(a), the district court varied
downward from the guidelines range and sentenced Thorn to
18 months in prison. As to the two misdemeanors for which
Thorn was convicted, the court imposed a sentence of 30
days, concurrent with the 18-month felony sentences.
Patrick was convicted of a single felony, namely,
conspiracy to impede federal officers in violation of § 372.
As explained above, the resulting base offense level for that
offense was 10. At sentencing, the district court applied a
two-level upward adjustment under § 3B1.1(c) based on
Patrick’s more culpable role in the offense and a four-level
enhancement under application note 4 of § 3A1.4. Because
Patrick’s criminal history category was I, the resulting
guidelines range associated with his final offense level of 16
was 21–27 months. The district court sentenced Patrick to a
low-end sentence of 21 months. With respect to Patrick’s
three misdemeanor convictions, the court sentenced him to
30 days, concurrent with his felony sentence.
B
We first address a threshold issue raised by Thorn as to
the standard of proof that the district court used in
determining whether to apply various enhancements in
calculating Thorn’s sentencing range under the sentencing
guidelines. “[D]ue process is generally satisfied by using a
preponderance of the evidence standard to prove sentencing
factors that are set forth” in the sentencing guidelines.
United States v. Jordan, 256 F.3d 922, 927 (9th Cir. 2001).
However, when an aggravating sentencing factor would
have an “extremely disproportionate effect” on the
defendant’s sentence, the Government must prove that factor
by clear and convincing evidence. Id. at 929. Thorn
contends that, under the governing multi-factor test for
116 USA V. EHMER

determining whether a sentencing factor would have such an
extremely disproportionate impact, see United States v.
Valensia, 222 F.3d 1173, 1182 (9th Cir. 2000), vacated and
remanded on other grounds, 532 U.S. 901 (2001), the
district court erred by applying a preponderance-of-the-
evidence standard at his sentencing. 23 The standard of
review makes a difference here, because the district court
expressly stated that it would decline to apply the three-level
firearm enhancement to Thorn under a clear-and-
convincing-evidence standard. We conclude that the district
court properly applied the preponderance standard.
In assessing whether guideline sentencing adjustments
would have a sufficiently “disproportionate effect” to
warrant application of a clear-and-convincing-evidence
standard, we have identified six non-exclusive factors that
should be considered:

(1) whether the enhanced sentence falls
within the maximum sentence for the crime
alleged in the indictment; (2) whether the
enhanced sentence negates the presumption
of innocence or the prosecution’s burden of
proof for the crime alleged in the indictment;
(3) whether the facts offered in support of the
enhancement create new offenses requiring
separate punishment; (4) whether the
increase in sentence is based on the extent of
a conspiracy; (5) whether the increase in the
number of offense levels is less than or equal

23
By contrast, at Patrick’s separate sentencing, the district court applied
a clear-and-convincing standard in assessing the adjustments to his
sentence.
 USA V. EHMER 117

to four; and (6) whether the length of the
enhanced sentence more than doubles the
length of the sentence authorized by the
initial sentencing guideline range in a case
where the defendant would otherwise have
received a relatively short sentence.

Jordan, 256 F.3d at 928 (simplified) (quoting Valensia, 222
F.3d at 1182). As we have recognized, “the real action is in
Valensia factors five and six.” United States v. Lonich, 23
F.4th 881, 911 (9th Cir. 2022).
The first two factors “are to some extent eclipsed by
subsequent developments in Sixth Amendment case law,
including that the Sentencing Guidelines are now merely
advisory in nature” and that, under Apprendi, “‘other than
the fact of a prior conviction, any fact that increases the
penalty for a crime beyond the prescribed statutory
maximum must be submitted to a jury, and proved beyond a
reasonable doubt.’” Id. at 911 (citations omitted).
Accordingly, under current law, the first two factors will
typically “do little independent work in driving the
analysis,” id., and there is nothing here to suggest that this is
the unusual case in which these factors might have some
residual applicability.
The third and fourth factors “are effectively a threshold
inquiry that asks whether the enhancement is based on the
conduct of conviction.” Id. at 916. These factors rest on the
premise that “due process concerns are satisfied by a
preponderance of the evidence standard” where “the
enhancements are based on criminal activity for which the
defendant has already been convicted.” Id. at 915
(simplified). Invoking such reasoning, the Government
contends that, under the fourth factor, the preponderance
118 USA V. EHMER

standard applies automatically here merely because “each of
Thorn’s sentencing enhancements arose directly from the
conspiracy for which he was charged and convicted.” We
need not resolve this issue because, even assuming arguendo
that the fourth factor did not itself require application of a
preponderance standard, we conclude that consideration of
the fifth and sixth factors ultimately point to a preponderance
standard.
In assessing whether, under the fifth Valensia factor, “the
increase in the number of offense levels [is] less than or
equal to four,” Valensia, 222 F.3d at 1182, the district court
held—over Thorn’s objection—that it should consider each
enhancement separately and that, since neither of the two
enhancements at issue here exceeded four levels, this factor
favored the preponderance standard. As the Government
now acknowledges on appeal, the district court’s analysis of
this fifth factor was erroneous: we have repeatedly held that,
in applying this factor, “the cumulative effect of ‘disputed
enhancements’” must be considered. Lonich, 23 F.4th at 911
(emphasis added) (citation omitted); see also United States
v. Parlor, 2 F.4th 807, 817 (9th Cir. 2021); Jordan, 256 F.3d
at 928–29. Because the total number of levels at issue was
five, this factor favored the clear-and-convincing standard.
In determining whether there has been a doubling of the
guidelines range (the sixth Valensia factor), we must
“compare[] both the respective high and low points of the
relevant Guidelines ranges.” United States v. Pike, 473 F.3d
1053, 1058 (9th Cir. 2007). Here, the doubling of the
relevant sentence range is only partial—the low end is more
than doubled (it goes from 10 months to 24 months), but the
high end is not doubled (it goes from 16 months to 30
months). In previous cases in which this Court has invoked
the sixth factor in applying the clear and convincing
 USA V. EHMER 119

evidence standard, both the high end and low end have
doubled. See, e.g., United States v. Valle, 940 F.3d 473, 480
(9th Cir. 2019) (from 1–7 months to 37–46 months); United
States v. Pineda-Doval, 614 F.3d 1019, 1041 (9th Cir. 2010)
(from 168–210 months to life imprisonment); United States
v. Bonilla-Montenegro, 331 F.3d 1047, 1050 (9th Cir. 2003)
(from 6–12 months to 63–78 months); Jordan, 256 F.3d at
929 (from 70–87 months to 151–188 months); United States
v. Munoz, 233 F.3d 1117, 1127 (9th Cir. 2000) (from 12–18
months to 41–51 months); United States v. Mezas de Jesus,
217 F.3d 638, 643 (9th Cir. 2000) (from 21–27 months to
57–71 months); United States v. Hopper, 177 F.3d 824, 833
(9th Cir. 1999) (from 24–30 months to 63–78 months).
Because there is no such full doubling of the range here, the
sixth Valensia factor does not favor applying the clear-and-
convincing-evidence standard.
We are thus left with a situation in which “the fifth
Valensia factor is met, but the sixth is not.” Lonich, 23 F.4th
at 912. Because “the clear and convincing standard” is
reserved for “exceptional circumstances,” United States v.
Felix, 561 F.3d 1036, 1047 (9th Cir. 2009) (emphasis
omitted), “we have recognized” that the district courts in
such split-factor cases “may apply a preponderance of the
evidence standard, notwithstanding an increase in the
offense level of four or more, when the sentence did not
otherwise double.” Lonich, 23 F.4th at 912; see also Pike,
473 F.3d at 1058 (noting that “we have never in any opinion
required a heightened standard of proof solely upon the basis
of an enhancement of more than four levels”). Considering
the totality of the circumstances, we do not perceive
anything exceptional about this case that would warrant a
different conclusion here. The district court therefore
120 USA V. EHMER

properly applied a preponderance standard in assessing the
enhancements to Thorn’s base offense level.
C
We reject Thorn’s contention that the district court erred
in applying a three-level enhancement under U.S.S.G.
§ 2A2.4(b)(1)(B).
Under that guideline, if a “dangerous weapon (including
a firearm) was possessed and its use was threatened,” then
the offense level is to be increased by three levels. Id.
(emphasis added). By its terms, this guideline adjustment
applies only if the defendant goes beyond mere possession
of the weapon and “threaten[s]” to “use” it. Thorn argues
that, because § 2A2.4(b)(1)(B)—unlike some other
guidelines—does not use the term “brandishing,” a threat to
use a firearm must mean more than “brandishing” it. And
because, in his view, the latter term includes “display[ing] a
gun for purposes of intimidation,” a “threat” to “use” a
firearm must mean more than that. Accordingly, Thorn
argues, the adjustment under § 2A2.4(b)(1)(B) only applies
where the defendant has “affirmatively expresse[d] an
intention to use the gun to inflict harm” and this threat has
been specifically directed at the “impeded federal officers.”
This argument is unavailing.
As an initial matter, we doubt that it makes much, if any,
difference that § 2A.4(b)(1)(B) does not use the term
“brandish.” The concepts of “brandishing” a weapon and
“threatening to use” it overlap considerably. Indeed, in
construing a different guideline that uses both terms, we
previously distinguished those concepts by effectively
treating brandishing as a particular type of threat, viz., one
involving a visual display of the weapon. United States v.
Chee, 110 F.3d 1489, 1493 (9th Cir. 1997) (construing
 USA V. EHMER 121

§ 2A2.2(b)(2)(C), which applies a 3-level enhancement in
aggravated assault cases if a dangerous weapon “was
brandished or its use was threatened”). That particular
distinction is no longer valid in light of a 2000 amendment
to the guidelines that expressly expanded the concept of
“brandishing” to include situations in which the “presence of
the weapon was otherwise made known to another person,
in order to intimidate that person, regardless of whether the
weapon was directly visible to that person.” U.S.S.G.
§ 1B1.1, app. note 1(C); see also United States v. Bolden,
479 F.3d 455, 462–63 (6th Cir. 2007) (holding that, in light
of the 2000 amendment, “brandishing” now includes both
“explicit and implicit threats” (emphasis added)). It may
thus be that, at least in the context of defendants who
threaten to use a weapon in their possession, there is now an
almost total overlap between the guidelines’ current
broadened definition of “brandishing” and the ordinary
understanding of “threatening to use.” We therefore reject
Thorn’s contention that we must depart from what otherwise
would be the ordinary meaning of the phrase “[a weapon’s]
use was threatened” so as to give that phrase a meaning that
is distinctively different from the guidelines’ broad concept
of “brandishing.”
We turn, then, to what it means to say that a weapon’s
“use was threatened.” As we have explained in discussing
the elements of the § 372 offense of conviction, a “threat” is
generally understood as a communication, by words or
actions, that a reasonable person would foresee would be
interpreted by its targets as “a serious expression of intent to
harm or assault,” Keyser, 704 F.3d at 638, and that is made
with the requisite scienter, Elonis, 575 U.S. at 737–40;
Counterman, 600 U.S. at 76–77. In the context of this case,
in which Thorn has been found guilty of conspiring to
122 USA V. EHMER

impede federal officers by threats and intimidation, the
enhancement in § 2A.4(b)(1)(B) therefore applies if, inter
alia, Thorn’s own offense conduct consisted of using a
firearm to make such a “threat.”
Focusing on Thorn’s own actions, the district court
properly concluded that it was “common sense” that Thorn’s
visible display of a firearm in the watchtower during a “well-
publicized” occupation was intended to prevent anyone
other than the occupiers and their supporters from entering
the refuge. See United States v. Gerhard, 615 F.3d 7, 12,
34–35 (1st Cir. 2010) (applying the same enhancement to the
display of firearms “during a well-publicized, nine-month
standoff with federal authorities”). Thorn’s conduct thus
satisfied the components of a “threat” to use the firearm.
And the fact that the impeded federal officers were not
physically onsite to directly see Thorn’s threat to use a
firearm is not dispositive where, as here, the nature of the
occupation, and its use of firearms, was amply publicized by
the occupiers themselves. In Chee, we specifically endorsed
the Eighth Circuit’s rejection of a comparable argument that
“threatening to use a weapon” is limited to situations in
which the defendant “directly threatened the victim with the
gun.” 110 F.3d at 1494 (emphasis added) (citing United
States v. Sims, 952 F.2d 1014, 1016–17 (8th Cir. 1991)).
D
The offense levels of both Thorn and Patrick were
increased by the district court pursuant to an upward
departure under application note 4 of § 3A1.4 of the
guidelines, which addresses terrorism-related offenses.
Both defendants contest these adjustments on appeal, but we
reject their challenges.
 USA V. EHMER 123

Section 3A1.4 provides that, for a “felony that involved,
or was intended to promote, a federal crime of terrorism,”
(1) the offense level shall be increased by 12 levels or to
level 32, whichever is higher, and (2) the criminal history
category shall be VI. See U.S.S.G. § 3A1.4(a)–(b). The
combined effect of these adjustments would produce a
sentencing range (absent further adjustments) of 210–262
months. The application notes provide that, as used in
§ 3A1.4, the term “federal crime of terrorism” is defined to
have the same meaning given to that phrase in 18 U.S.C.
§ 2332b(g)(5). Id. § 3A.1.4, app. note 1. That statute, in
turn, defines a “[f]ederal crime of terrorism” to mean an
offense that meets the following two requirements: (1) the
offense “is calculated to influence or affect the conduct of
government by intimidation or coercion, or to retaliate
against government conduct”; and (2) the offense is a
violation of one of a lengthy list of specifically enumerated
statutory provisions. See 18 U.S.C. § 2332b(g)(5)(A)–(B).
Neither 18 U.S.C. § 372 nor § 930(b)—the relevant offenses
of conviction here—are on § 2332b(g)(5)’s list, and so the
second requirement is not met in this case. Accordingly,
Thorn’s and Patrick’s offenses do not count as “federal
crimes of terrorism,” and neither defendant was eligible for
the specific terrorism-based upward adjustment set forth in
§ 3A1.4.
However, application note 4 to § 3A1.4 provides that
“there may be cases,” inter alia, in which the offense was
“calculated to influence or affect the conduct of government
by intimidation or coercion, or to retaliate against
government conduct”—i.e., the first requirement of
§ 2332b(g)(5) is met—but “the offense involved, or was
intended to promote, an offense other than one of the
offenses specifically enumerated in 18 U.S.C.
124 USA V. EHMER

§ 2332b(g)(5)(B)”—i.e., the second requirement is not met.
“In such cases,” the note states, “an upward departure would
be warranted, except that the sentence resulting from such a
departure may not exceed the top of the guideline range that
would have resulted if the adjustment under this guideline
had been applied.” See U.S.S.G. § 3A1.4, app. note 4.
Invoking this application note, the district court enhanced
Thorn’s offense level by two levels and Patrick’s by four
levels.
Thorn and Patrick first contend that the upward departure
recognized in application note 4 violates the explicit
statutory instructions given to the Sentencing Commission
in § 730 of the Antiterrorism and Effective Death Penalty
Act (“AEDPA”), Pub. L. No. 104-132, § 730, 110 Stat.
1214, 1303 (1996), 28 U.S.C. § 994 note. That section
directed the Commission to “amend the sentencing
guidelines so that the chapter 3 adjustment relating to
international terrorism only applies to Federal crimes of
terrorism, as defined in section 2332b(g) of title 18, United
States Code.” Id. (emphasis added). According to Thorn
and Patrick, the Sentencing Commission’s instruction in
application note 4 to apply terrorism-based upward
departures to offenses that do not meet the criteria of
§ 2332b(g)(5) violates the statutory directive that the
relevant chapter 3 adjustment shall apply “only” to offenses
that meet § 2332b(g)(5)’s definition. They therefore
contend that the application note is void. See Stinson v.
United States, 508 U.S. 36, 38 (1998) (holding that
“commentary in the Guidelines Manual that interprets or
explains a guideline is authoritative unless it violates the
Constitution or a federal statute, or is inconsistent with, or a
plainly erroneous reading of, that guideline”). This
argument fails.
 USA V. EHMER 125

When enacted in April 1996, AEDPA § 730’s reference
to “the chapter 3 adjustment relating to international
terrorism” was plainly a reference to § 3A1.4 of the 1995
Guidelines Manual, which was titled, “International
Terrorism.” See U.S.S.G. § 3A1.4 (1995 ed.). The
substance of § 3A1.4 (in terms of increases in offense level
and criminal history category) was the same in the 1995
guidelines manual as it is today, but those adjustments
applied to a “felony that involved, or was intended to
promote, international terrorism.” See id. (emphasis
added). The phrase “international terrorism” was defined to
have the meaning specified in “18 U.S.C. § 2331,” see
U.S.S.G. § 3A1.4, app. note 1 (1995 ed.). Section 2331’s
definition of “international terrorism”—which remains the
same under the current criminal code—was in some senses
broader, and in some senses narrower, than the definition of
“federal crime of terrorism” in § 2332b(g)(5). While
“international terrorism” includes terrorist “activities” that
violate, or (if committed within the relevant jurisdiction)
would violate, any federal or statute criminal law, those
activities must also meet the further requirement that they
“occur primarily outside the territorial jurisdiction of the
United States, or transcend national boundaries.” See 18
U.S.C. § 2331(1)(C) (emphasis added). 24

24
The full definition is as follows:
[T]he term “international terrorism” means activities
that—
(A) involve violent acts or acts dangerous to human life
that are a violation of the criminal laws of the United
States or of any State, or that would be a criminal
violation if committed within the jurisdiction of the
United States or of any State;
126 USA V. EHMER

Against this backdrop, it seems clear that § 730 was an
instruction to the Commission to ensure that the existing
adjustment, applicable to international terrorism, with its
particularly severe consequences, would now be applied
“only” to the specifically enumerated crimes in
§ 2332b(g)(5), and then only if the additional requirements
of § 3A1.4 were met. But that instruction does not establish
the very different proposition that the new version of
§ 3A1.4, revised in accordance with Congress’s instructions,
but also expanded to cover domestic as well as international
terrorism, comprehensively covered the entire subject of
“terrorism” activities as a relevant sentencing factor. The
general background rule pertinent to the application of the
guidelines is that, subject to certain additional restrictions in
the context of “child crimes and sexual offenses,” the
sentencing court may depart from the otherwise applicable
guideline range if “there exists an aggravating or mitigating
circumstance of a kind, or to a degree, not adequately taken
into consideration by the Sentencing Commission in
formulating the guidelines that should result in a sentence
different from that described.” See 18 U.S.C. § 3553(b)(1);

(B) appear to be intended—
(i) to intimidate or coerce a civilian population;
(ii) to influence the policy of a government by
intimidation or coercion; or
(iii) to affect the conduct of a government by mass
destruction, assassination, or kidnapping; and
(C) occur primarily outside the territorial jurisdiction of
the United States, or transcend national boundaries in
terms of the means by which they are accomplished, the
persons they appear intended to intimidate or coerce, or
the locale in which their perpetrators operate or seek
asylum[.]
18 U.S.C. § 2331(1).
 USA V. EHMER 127

see also U.S.S.G. § 5K2.0(a). Nothing in AEDPA § 730
precludes a court from concluding, particularly in the
context of a specific offense that does not involve
international terrorism, that the circumstances of that offense
present a terrorism-related factor that was “not adequately
taken into consideration” in the guidelines.
To be sure, in making that determination, the court must
take into account § 3A1.4 and the limitations that Congress
has imposed on that provision. That might, for example,
lead to the conclusion that an upward departure that
approaches the severity of § 3A1.4 would not properly be
applied to offenses other than the ones Congress has
specified; in such cases, the “circumstance” looks more like
one that the Commission has “adequately taken into
consideration” in formulating the guidelines. 18 U.S.C.
§ 3553(b)(1). Conversely, a court might properly conclude
that, in the context of offenses and adjustments that differ
from what is covered in § 3A1.4, a particular case may
present a terrorism-related feature that was not adequately
taken into account by the guidelines, including § 3A1.4. See,
e.g., United States v. Tankersley, 537 F.3d 1100, 1113 (9th
Cir. 2008) (holding that, although § 3A1.4 did not apply to
the defendant’s “terrorist activities directed at private
conduct,” § 730 did not prohibit the district court from
applying an upward departure that mirrored § 3A1.4’s 12-
level increase without mirroring § 3A1.4’s severe increase in
the criminal history category). In short, nothing in AEDPA
§ 730 states that § 3A1.4 completely exhausts the subject of
terrorism, such that terrorism-related issues can never be
found, in a particular case, to present a ground for departure.
See id. (stating that nothing in § 730 “prohibit[s] the
Sentencing Commission from promulgating a guideline that
enhanced an offender’s sentence based on that offender’s
128 USA V. EHMER

intent to use terrorist activities to influence private
conduct”).
The question remains, then, whether the district court in
this case properly departed upwards under application note
4 to § 3A1.4. Thorn and Patrick assert that the departure
factor identified in application note 4—viz., that “the offense
was calculated to influence or affect the conduct of
government by intimidation or coercion”—is already taken
into account in setting the offense level for § 372, because
that offense has, as an element, that the defendant conspired
to impede Government officers “by force, intimidation, or
threat.” 18 U.S.C. § 372. This argument overlooks the fact
that the guideline that defines the offense level for a § 372
violation—namely, § 2A2.4—also covers a wide range of
offenses that involve obstruction of officers, including the
simple act of resisting arrest. See, e.g., United States v.
Beckner, 983 F.2d 1380, 1383 (6th Cir. 1993). Accordingly,
the fact that § 2A2.4 takes into account the impeding of a
federal officer does not mean that that guideline has fully
taken into account a situation in which that impeding is done
for the further purpose of having an additional and broader
effect on the policy and actions of the Government that goes
beyond the impeding of one or more officers. Cf. U.S.S.G.
§ 2A2.4, app. note 3 (noting that the “base offense level” in
§ 2A2.4 “does not assume any significant disruption of
governmental functions,” and such disruption might warrant
an upward departure). Here, the district court properly
concluded that Thorn and Patrick had participated in the
occupation for the purpose of coercing the Government
either to show leniency to the Hammonds or to turn the
refuge over to private ownership. Based on that
determination, the court properly departed upwards by two
levels for Thorn and four for Patrick—each of which was
 USA V. EHMER 129

much less than the twelve-level increase provided for in
§3A1.4—to take account of this factor, which was not
adequately considered under § 2A2.4.
Finally, we reject Thorn’s and Patrick’s argument that an
upward departure would be warranted here only if their
conduct could be said to constitute “terrorism” in the sense
that it involved “acts dangerous to human life.” 18 U.S.C.
§ 2331(5) (defining “domestic terrorism” to require this
element). Even assuming that their conduct did not involve
“acts dangerous to human life,” that conduct still involved
an attempt to change Government policy through
“intimidation or coercion,” see U.S.S.G. § 3A1.4, app. note
4. For the reasons we have explained, that factor is not
adequately taken into account by § 2A2.4 and warranted a
tailored upward departure.
E
The district court did not abuse its discretion in applying
a two-level aggravating-role enhancement to Patrick under
U.S.S.G. § 3B1.1(c).
Section 3B1.1 provides for a sliding scale of upward
adjustments, from two to four levels, depending upon the
nature of the defendant’s role in the offense and the scope of
the relevant criminal activity in which he was involved. To
qualify for any of the adjustments under § 3B1.1, a
defendant must have been an “organizer, leader, manager, or
supervisor” of the criminal activity. See U.S.S.G.
§ 3B1.1(a)–(c). An “organizer or leader” is a more
significant and culpable role than a “manager or supervisor,”
see id. § 3B1.1(a)–(b) (providing for a higher adjustment for
the former than the latter in the context of comparably
extensive criminal activity), but the least common
denominator needed to establish any such role is that the
130 USA V. EHMER

defendant “exercised some control over others involved in
the commission of the offense or was responsible for
organizing others for the purpose of carrying out the crime,”
United States v. Whitney, 673 F.3d 965, 975 (9th Cir. 2012)
(citation omitted). See United States v. Doe, 778 F.3d 814,
823 (9th Cir. 2015) (stating that the “leader” and “organizer”
roles are distinct, and that “a defendant who has the
‘organizational authority’ necessary to coordinate the
activities of others to achieve a desired result is an
‘organizer’ for purposes of the enhancement” (citation
omitted)); see also United States v. Vinge, 85 F.4th 1285,
1290 (9th Cir. 2023) (clarifying that “[t]hese softer forms of
authority or control are sufficient for a determination that a
defendant is an organizer”).
The district court did not clearly err in finding that
Patrick exercised sufficient authority to organize the other
participants. As the Government explained at sentencing in
advocating for a role adjustment, Patrick was listed
prominently in an ad hoc list of key occupation personnel
that Ammon Bundy kept in the “Notes” section of his
iPhone. Specifically, in listing persons in charge of various
tasks, such as “Defense,” “Security,” and “Food,” Ammon
Bundy identified Patrick as being in charge of
“Organization” and “Moral[e].” Moreover, in a video
recorded by Patrick during a key meeting at the refuge after
the occupiers learned that Finicum had been killed, Patrick
led the discussion among those present, urged the
participants to stay and peacefully to continue the
occupation, and called for a vote on that proposal. In light
of this evidence, the district court’s conclusion that Patrick
exercised sufficient authority during the occupation to
organize others is “plausible in light of the record viewed in
its entirety,” and we therefore “cannot reverse” that finding
 USA V. EHMER 131

even if we might “have found differently.” United States v.
McCarty, 648 F.3d 820, 824 (9th Cir. 2011).
VIII
Finally, Appellants challenge various orders by which
the district court precluded access to certain sealed materials.
They also renew their motion in this court to unseal certain
materials that were included in a volume of the
Government’s supplemental excerpts of record that was filed
ex parte and under seal.
A
In a motion filed in the district court after the case was
already on appeal, Thorn sought an order allowing only his
counsel to review the cooperation agreement between the
Government and Jason Blomgren, a non-testifying co-
defendant. 25 The district court did not abuse its discretion in
concluding that Thorn had failed to justify this requested
order.
Thorn sought access to the cooperation agreement solely
on the ground that it might be relevant and helpful in
preparing his appeal. The district court reasonably

25
In its publicly filed, redacted answering brief, the Government asserted
that it would neither name the relevant cooperator publicly nor
“identify[] the ECF Nos. associated with his plea and sentencing.”
Despite that disclaimer, the body of the redacted brief did exactly that by
identifying the relevant events concerning the cooperator’s plea as “ECF
Nos. 723, 724, 779.” The public docket shows that ECF Nos. 723 and
724 correspond, respectively, to the minutes of the change of plea
hearing for “Jason Charles Blomgren” and to his plea agreement.
Because Blomgren’s identity has thus been indirectly disclosed in the
public docket for several years and Appellants’ sealed opening brief
confirms that Appellants know his identity, we decline to treat it as
confidential.
132 USA V. EHMER

concluded that the agreement has no conceivable relevance
to this appeal. 26 Blomgren did not testify at trial, so there
can be no pertinent contention that his cooperation
agreement might have been relevant for purposes of cross-
examination. Cf. Amado v. Gonzalez, 758 F.3d 1119, 1134
(9th Cir. 2014) (recognizing that, under Giglio v. United
States, 405 U.S. 150, 154 (1972), the Government “must
disclose all material impeachment evidence” concerning
prosecution witnesses, including “evidence relating to
cooperation agreements”). Moreover, as the Government
notes, Blomgren did not begin cooperating until after the
events at issue, and there is therefore no concern that
information concerning him might be relevant on the theory
that he was acting as a Government agent during the
occupation. In addition, we have reviewed the sealed copy
of Blomgren’s cooperation agreement and the district court’s
order sealing it, and we discern nothing in them that has any
conceivable relevance to Thorn’s appeal. Although the
specific privilege recognized in Roviaro v. United States,
353 U.S. 53 (1957), is no longer applicable when (as here)
the identity of the cooperator has become generally known
“to those who would have cause to resent” the cooperation,
see United States v. Long, 533 F.2d 505, 507 (9th Cir. 1976)
(quoting Roviaro, 353 U.S. at 60), the district court did not
abuse its discretion in concluding that Blomgren and the

26
Thorn asserts for the first time in his opening brief that the district
court’s order infringes on the public’s right of access to Blomgren’s
cooperation agreement under the standards set forth in In re Copley
Press, Inc., 518 F.3d 1022, 1026 (9th Cir. 2008) (recognizing a
“qualified First Amendment right of access” to the “cooperation
addendum” to a “plea agreement” in that case). Because this argument
was not raised by Thorn in his motion seeking access in the district court
or in Appellants’ renewed motion to unseal in this court, we decline to
consider it.
 USA V. EHMER 133

Government nonetheless “retain[ed] an interest in the
[cooperation agreement’s] privacy” and that this interest,
even if modest, outweighed Thorn’s essentially non-existent
need to examine the document.
B
We also reject Appellants’ contention that the district
court improperly denied discovery of certain memoranda
concerning information learned from Government
informants.
During the first trial, the defendants in that trial sought
discovery of unredacted copies of any memoranda
concerning 15 “confidential human sources” with whom the
defendants may have had contact. At a hearing on October
14, 2016 in connection with that motion, the Government
represented that the reports concerning two informants—
Mark McConnell and Terri Linnell—had already been
turned over. At that hearing, the district court ordered the
Government to submit ex parte and in camera unredacted
copies of the memoranda that the Government had
previously provided to the defendants, in redacted form,
concerning the 13 informants who had had direct contact
with one or more defendants while those defendants were at
the refuge and whose identities had not been disclosed to
defendants. Of the 15 relevant informants, nine were
“personally present” at the refuge at some point during the
occupation, and of those nine, three were ultimately
identified during the trial (viz., McConnell, Linnell, and a
third individual, Fabio Minoggio). Minoggio and Linnell
testified at the first trial as defense witnesses; McConnell did
not testify.
After conducting an in camera review of the memoranda
and of an accompanying declaration from an Assistant U.S.
134 USA V. EHMER

Attorney (“AUSA”) that provided the names of the
informants (who were identified only by numbers in the
unredacted reports), the district court denied the motion for
discovery. Citing United States v. Henderson, 241 F.3d 638,
645 (9th Cir. 2000), the district court concluded in its written
order that there was no information in “the un-redacted
versions of the human source reports that was ‘relevant and
helpful’ to any defense.” In its oral comments during a
further hearing on the motion on October 17, 2016, the court
added that, “when [it] compared the redacted to the
unredacted versions, apart from identity, there was very little
substance that was redacted,” meaning that “[m]ost” of the
redactions removed information that “went to identifying
who the person was.”
The district court stated before the second trial that all
pretrial “rulings that were not specific to the [first] trial”—
which would include this order denying discovery of these
materials—would be applicable to the defendants at the
second trial. Appellants here may properly challenge that
earlier ruling in this appeal. In addition, Thorn’s post-trial
motion sought disclosure of these same sealed materials in
connection with his appeal. The district court denied that
request, holding that it would adhere to its prior October
2016 orders on that subject, “in which it concluded the
government need not disclose unredacted versions of
confidential human source reports to Defendants.”
To make an appropriate record of its review, the court
had sealed, in connection with the first trial, the copies of the
memoranda and the AUSA declaration that it had reviewed.
 USA V. EHMER 135

At our direction, those materials have been provided to this
court. 27
The district court did not abuse its discretion in declining
to require the Government to provide the defense with the
unredacted memoranda concerning these informants. See
Henderson, 241 F.3d at 645–46. We have reviewed these
unredacted memoranda, and we agree with the district
court’s conclusion that they do not contain information that
is “‘relevant and helpful’ to [the] defense, or that [would] be
essential to a fair trial.” Id. Half of the reports contain no
substantive redactions at all, and the remainder reflect
redactions of information that the district court reasonably
concluded is not material to any Appellants’ defense.
Patrick and Thorn raise the specter that, because the jury
did not know which of the many people at the refuge were
Government agents, the jury may have unwittingly and
improperly convicted them of conspiring with someone who
was actually a Government agent, in violation of the district
court’s instructions. To underscore this possibility, their
appellate brief lists at least two dozen persons who were
mentioned at the trial and who, in their view, may have been
among the persons with whom the jury found they conspired.
The Government contends that, “[g]iven the extensive
evidence in this case that more than 20 individuals who were
actually charged took over and occupied the refuge,” there is
no basis to suspect that the jury based its verdicts on a
finding that Patrick and Thorn conspired with Government
agents.

27
The Government represented in the district court that it had submitted
112 reports but the materials forwarded to us by the district court contain
only 107 reports.
136 USA V. EHMER

We need not decide by what standards we should assess
the parties’ competing contentions on this score. Having
reviewed the unredacted memoranda in the context of the
record as a whole, we conclude beyond a reasonable doubt
that the jury could not have improperly rested its verdict on
the view that Patrick and Thorn conspired with a
Government agent. 28
C
Thorn, Patrick, and Ryan also sought to have their
appellate counsel gain access to five sealed documents that
were made part of the district court record. These documents
consist of transcripts of three hearings from which Thorn,
Patrick, and Ryan were excluded and two related orders. A
special “filter team” handled the Government’s opposition
to that particular unsealing request. Over the defense’s
objection, the team was permitted to file that opposition ex
parte and under seal. Although defense counsel has not seen
these five sealed documents, they are aware that these
documents concern proceedings relating to certain
underlying material that the Government obtained from
another person. A discussion relating to that underlying
material occurred at a sealed hearing during the trial at which
Appellants and their counsel were present. No request for a
court order requiring production of that underlying material
was made in the district court, and no issue concerning its
discoverability is before us. The only question raised on
appeal concerns whether counsel should have been granted

28
For the same reasons discussed earlier, we conclude that Appellants
have failed to preserve any contention that the public’s right of access to
judicial proceedings requires unsealing of these materials. See supra
note 26.
 USA V. EHMER 137

access to these particular five sealed documents and to the
filter team’s ex parte opposition to their unsealing.
We conclude that, while the district court order that is
contained in the Government’s supplemental excerpts of
record at pages 193–94 should remain under seal at this time,
that document should be disclosed to Appellants’ counsel
under an appropriate protective order. The order’s reasoning
for declining to take any action with respect to the
underlying material discussed in the order rests critically on
the premise that the situation had been explained to all
counsel, including Appellants’ counsel, in the manner
described in the order. We perceive no proper basis for
declining to allow defense counsel to review representations
made to the court about the nature and substance of
disclosures that were assertedly made to all defense counsel.
Moreover, having reviewed the sealed order in the context
of the parties’ sealed appellate briefing on these issues, we
are unpersuaded that the Government has shown that the
order contains any details that, to the extent they are not
already known to defense counsel, should not now be
disclosed to them.
With respect to the other challenged items, we agree that
at this time they should remain under seal and should not be
disclosed to Appellants or their counsel. Cf., e.g., United
States v. Harmon, 833 F.3d 1199, 1205 (9th Cir. 2016)
(upholding use of ex parte and in camera proceedings to
address discoverability of information). But our ruling on
this score is without prejudice to reconsideration of that
matter on remand in the district court after the disclosure of
the sealed order discussed above.
138 USA V. EHMER

IX
We affirm Appellants’ convictions and sentences. With
respect to the sealing and discovery issues, we remand to the
district court with instructions to disclose to Appellants’
counsel only, subject to an appropriate protective order, the
sealed order that is contained at docket entry number 768.
After that order has been disclosed, the district court shall, if
requested, and after receiving any appropriate input from the
parties, reexamine the remaining restrictions on the
disclosure of that order and on the disclosure of the other
specific sealed documents that are referenced above
concerning the filter team. If, in the judgment of counsel,
the disclosed materials reveal any basis for seeking a new
trial or other appropriate relief, counsel may then file any
appropriate motion. In all other respects, we affirm the
district court’s denial of discovery and its sealing orders, and
we deny Appellants’ requests for unsealing in this court.
CONVICTIONS AND SENTENCES AFFIRMED;
REMANDED.
 USA V. EHMER 139

BERZON, Circuit Judge, concurring in part and concurring
in the judgment in part:

I agree with the majority opinion in full except for Part
II, addressing Defendants’ claims that the district court’s ex
parte dismissal of 430 prospective jurors violated
Defendants’ rights to counsel and to presence. As to those
issues, I concur in the result and some of the reasoning, but
would reach that result differently in certain respects.
As the majority concludes, there is no doubt that the
district court in this case, for reasons hard to fathom,
disregarded its own assurances that the parties would—as is
required—be able to weigh in through counsel as to any
excusals for cause before they occurred. The majority
concludes that the district court’s error does not require
automatic reversal under United States v. Cronic, 466 U.S.
648, 658 (1984), because (1) the use of paper juror
questionnaires suffices for meaningful review of the
excusals, Majority Op. at 49–50, and (2) there is “no
reasonable doubt” that the nine jurors in question were
properly excluded. Id. at 52. I agree, but for reasons other
than those relied upon by the majority, that Cronic does not
require automatic reversal on the particular facts of this case,
and that the district court’s error in determining excusals for
cause without input from Defendants through counsel was
harmless.
The majority also concludes that Defendants’ due
process-based right to presence claim “necessarily fail[s]”
because Defendants were not owed an in-court hearing as to
the excusal of prospective jurors. Id. at 46. I depart from
the majority in its characterization of Defendants’ right to
presence claim, but agree that reversal is not required
140 USA V. EHMER

because any violation of Defendants’ right to presence was
harmless.
I therefore concur in affirming on these issues but write
separately principally to clarify the parameters of the right-
to-counsel and right-to-presence claims.
I
A
Defendants contend that the district court infringed upon
their right to counsel by dismissing potential jurors without
the participation of counsel in the excusal process. As the
majority explains, the district court decided to excuse
potential jurors based on only paper questionnaires, seeking
no input from the parties before striking potential jurors for
cause. 1 Our closest case on this issue, United States v.
Bordallo, 857 F.2d 519, 522–23 (9th Cir. 1988), as amended
on rehearing, 872 F.2d 334 (9th Cir. 1989), analyzes a
similar instance of juror dismissal without the input of the
parties or counsel as a denial of the right to due process. The
parties and the majority in this case, though, have framed the
issue principally as concerning a right to counsel, so I
proceed on that premise.
Central to my critique of the majority’s analysis is my
conviction that a district court decision on for-cause
challenges to jurors is almost always a discretionary one. See
United States v. Kechedzian, 902 F.3d 1023, 1027, 1031 (9th
Cir. 2018). The majority does not address this precept,
although it is well settled law and is relevant to our analysis
here.

1
I agree with the majority that the district court’s excusals for hardship
were appropriately conducted. Majority Op. at 35–37.
 USA V. EHMER 141

Before explaining why the discretionary nature of most
excusals for cause matters here, a brief review of juror bias
and pertinent for-cause removal principles is helpful.
Trial courts generally enjoy broad discretion in
structuring, supervising, and conducting jury selection.
“Voir dire ‘is conducted under the supervision of the court,
and a great deal must, of necessity, be left to its sound
discretion.” Ristaino v. Ross, 424 U.S. 589, 594 (1976)
(quoting Connors v. United States, 158 U.S. 408, 413
(1985)). It is the judge’s “responsibility to remove
prospective jurors who will not be able impartially to follow
the court’s instructions and evaluate the evidence.” Morgan
v. Illinois, 504 U.S. 719, 729–30 (1992) (quoting Rosales-
Lopez v. United States, 451 U.S. 182, 188 (1981) (plurality
opinion) (quotation marks omitted)). If a prospective juror
“can[not] lay aside [the person’s] impression or opinion and
render a verdict based on the evidence presented in court,”
that person cannot be impartial. Lockhart v. McCree, 476
U.S. 162, 176 (1986) (quoting Irvin v. Dowd, 366 U.S. 717,
723 (1961) (quotation marks omitted)).
In determining which jurors are unable to be impartial,
courts recognize two categories of bias: actual and implied.
See United States v. Gonzalez, 214 F.3d 1109, 1111 (9th Cir.
2000). Actual bias is defined as “the existence of a state of
mind that leads to an inference that the person will not act
with entire impartiality.” Id. at 1112 (quoting United States
v. Torres, 128 F.3d 38, 43 (2d Cir. 1997) (quotation marks
omitted)). Actual bias is “typically found when a
prospective juror states that [the person] cannot be impartial,
or expresses a view adverse to one party’s position and
responds equivocally as to whether [the person] could be fair
and impartial despite that view.” Fields v. Brown, 503 F.3d
755, 767 (9th Cir. 2007). Actual bias is often discerned “in
142 USA V. EHMER

large part upon demeanor,” Gonzalez, 214 F.3d at 1112, and,
as such, is “a question of fact,” Fields, 503 F.3d at 767.
The Supreme Court has allocated the dismissal of a juror
for actual bias to the trial court’s discretion for at least a
century. See Holt v. United States, 218 U.S. 245, 248 (1910)
(“The finding of the trial court upon the strength of the
juryman’s opinions and his partiality or impartiality ought
not to be set aside by a reviewing court unless the error is
manifest.”). In doing so, the Supreme Court has “stressed”
the “broad discretion” of trial courts in assessing and
responding to the actual bias of prospective jurors. Dennis
v. United States, 339 U.S. 162, 168 (1950). This court, in
turn, has recognized that “[f]ew aspects of a jury trial are
more committed to a district court’s discretion than the
decision whether to excuse a prospective juror for actual
bias.” Kechedzian, 902 F.3d at 1031 (quotation omitted);
see also, Gonzalez, 214 F.3d at 1112. (“Because
determinations of impartiality may be based in large part
upon demeanor, this court typically affords deference to the
district court’s determinations, and reviews a court’s
findings regarding actual juror bias ‘for manifest error’ or
abuse of discretion.”).
A judge nonetheless has discretion over the removal of
jurors only to a certain extent. Under certain “exceptional
circumstances,” Fields, 503 F.3d at 766, a juror’s bias may
be “implied” or “presumed,” and the juror must be excused,
Dyer v. Calderon, 151 F.3d 970, 984–85 (9th Cir. 1998). See
also Sanders v. Lamarque, 357 F.3d 943, 948–49 (9th Cir.
2004). Bias is presumed when “the relationship between a
prospective juror and some aspect of the litigation is such
that it is highly unlikely that the average person could remain
impartial in [the person’s] deliberations under the
circumstances.” Gonzalez, 214 F.3d at 1112 (quoting
 USA V. EHMER 143

Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990) (quotation
marks omitted)). Classic situations that give rise to implied
bias are when a juror or a close family member has been a
victim of the same crime for which a defendant is being tried,
or when the juror or family member had an experience
“similar to or identical to the fact pattern” at issue. Id. at
1112–13; see also Fields, 503 F.3d at 766. Other instances
of implied bias include when the potential juror has been
involved in the incident that gave rise to the crime or has a
close relationship to the victim or defendant. See United
States v. Allsup, 566 F.2d 68, 71 (9th Cir. 1977); Smith v.
Phillips, 455 U.S. at 209, 222 (1982) (O’Connor, J.,
concurring). Implied bias is determined under an objective
standard as a mixed question of law and fact and so is not
reviewed with deference to the trial court, see Gonzalez, 214
F.3d at 1112–13.
Generally, we and other circuits have cautioned against
too liberally implying bias or creating per se disqualifying
criteria when deciding whether jurors should be dismissed
for cause. “[P]rudence dictates that courts answering this
question should hesitate before formulating categories of
relationships which bar jurors from serving in certain types
of trials.” Fields, 503 F.3d at 772 (quoting Tinsley, 895 F.2d
at 527 (quotation marks omitted)); see also Torres, 128 F.3d
at 46.
Where the narrow implied bias rubric is inapplicable but
a juror has stated grounds that could give rise to partiality, a
court ordinarily abuses its discretion by not conducting
inquiry before excusing the juror for cause. Perhaps the best
example of this requirement concerns individuals with moral
scruples regarding the death penalty. In Witherspoon v.
Illinois, 391 U.S. 510, 515, 521–23 (1968), the Supreme
Court held that excusal during the penalty phase of
144 USA V. EHMER

individuals who “acknowledged having ‘conscientious or
religious scruples against the infliction of the death penalty’
. . . without any effort to find out whether their scruples
would invariably compel them to vote against capital
punishment” was error, resulting in a partial jury and
reversal of the death penalty. 2 Outside the death penalty
context as well, “presum[ing] that personal beliefs
automatically render one unable to act as a juror is improper”
and “a district court cannot dismiss jurors for cause based
solely on their acknowledgement that they disagree with the
state of the law that governs the case.” United States v.
Padilla-Mendoza, 157 F.3d 730, 733 (9th Cir. 1998). Where
a juror has indicated some disagreement with the governing
law or a personal belief that may affect the case, “[t]he court
must make some effort to determine whether the jurors could,
despite their beliefs, perform their duties as jurors.” Id.
(emphasis added).
This effort typically takes the form of in-court, oral
judicial inquiry during voir dire. Inquiry often reveals that a
juror is able to perform their duties despite reported beliefs
or personal experiences that may suggest otherwise. For
example, in United States v. Alexander, 48 F.3d 1477, 1482–
84 (9th Cir. 1995), two jurors who were previously robbed
were held to have been properly empaneled on a jury for a
robbery trial. One of the jurors had unequivocally said the
person could put aside their experience; the other said she
“believed” she could be fair despite having herself been
robbed. Id. at 1482–83. We deferred to the discretion of

2
Witherspoon held that the death-qualifying of prospective jurors
without further inquiry does not necessitate reversal of the conviction,
because the exclusion of jurors opposed to capital punishment does not
necessarily create an unrepresentative jury on the question of guilt. See
id. at 518; see also, infra at 13.
 USA V. EHMER 145

the trial court to assess the genuineness of those statements
and retain the jurors. Id. at 1484.
Additionally, exposure to even a large amount of media
coverage regarding a case is not per se disqualifying of a
prospective juror. As early as 1961, the Supreme Court
recognized that with “swift, widespread and diverse methods
of communication . . . scarcely any of those best qualified to
serve as jurors will not have formed some impression or
opinion as to the merits of [a] case.” Irvin, 366 U.S. at 722.
Yet, a juror does not need to “be totally ignorant of the facts
and issues involved” in a trial, “particularly . . . in criminal
cases.” Id. at 722–23. So, for example, where a juror
admitted to accepting newspaper statements as factual and
to holding an opinion “derived from the papers,” but stated
that “evidence [at trial] would change [his opinion] very
easily,” a court did not abuse its discretion by empaneling
the juror. Holt, 218 U.S. at 248. Similarly, we held in United
States v. Olsen, 704 F.3d 1172, 1194–95 (9th Cir. 2013), that
even where a juror had expressed strong opinions about a
case a year before the trial based on extensive press
consumption, it was not an abuse of discretion to allow that
person to serve on the jury. The upshot is that even a large
amount of press exposure does not require a judge to excuse
a juror.
Here, only eight of the prospective jurors dismissed for
cause before trial in this case were specifically identified by
Defendants after reviewing the district court’s notes on the
juror questionnaires of dismissed jurors. Looking at the
questionnaires filled out by those jurors—which are all we
can look at, as nothing else about them was developed in the
record—I cannot agree that “there is no reasonable doubt
that these eight jurors were properly excluded” and “would
and should have been released in any event.” Majority Op.
146 USA V. EHMER

at 52, 53 (quoting Bordallo, 857 F.2d at 523 (quotation
marks omitted)). Excusal may have been provident in some
instances, but all but one excusal was likely within the trial
judge’s discretion.
Specifically, only one of the prospective jurors would
likely be disqualified for implied bias. That juror requested
to be excused from the jury pool because her husband was a
member of the SWAT team deployed to the Malheur
National Wildlife Reserve during the occupation at issue in
the trial. This type of close personal relationship with
someone involved in the actual events of the trial is precisely
the kind of connection to a prospective trial that gives rise to
a presumption of implied bias, requiring dismissal as a
matter of law and without need for further inquiry. See Dyer,
151 F.3d at 981–82; Smith, 455 U.S. at 222 (O’Connor, J.,
concurring).
The remaining prospective jurors exhibited familiarity
with the case from some amount of media exposure or made
equivocal or strong statements of bias for Defendants or the
government. The juror excused for familiarity with the case
did just 90 minutes of googling about the case and
defendants. He expressed no bias as a result. Although the
trial court might have appropriately exercised its discretion
by dismissing the juror, the juror’s exposure was certainly
less than that which this court deemed acceptable in Olsen—
extensive media consumption and strong opinions. 704 F.3d
at 1172. So the district court had discretion to retain or—
perhaps after further inquiry—dismiss the juror; and so input
from Defendants through counsel therefore could have
affected that decision.
Two other jurors expressed mild bias. One said it would
be “difficult” for her to be impartial. Another stated on her
 USA V. EHMER 147

juror questionnaire that she had some familiarity with the
events leading to the charges and some bias against the
government, but she also indicated that she did not have any
opinion about the case that would affect her ability to be
impartial, and she checked boxes indicating a willingness to
follow the law. These prospective jurors would certainly
ordinarily require an actual bias inquiry and could well be
rehabilitated after questions from the court. 3 With regard to
the prospective juror who expressed views critical of the
government but otherwise checked boxes indicating a
willingness to be impartial, an excusal without inquiry
would have been in tension with the Witherspoon and
Padilla-Mendoza rules requiring inquiry before dismissing
someone for their political, moral, or religious views. See
Witherspoon, 391 U.S. at 515, 521–23; Padilla-Mendoza,
157 F.3d at 733.
The four remaining prospective jurors who indicated a
strong bias for one party over the other would be excusable
if at all for actual—not implied—bias. None provided any
information about the person’s professional engagements,
personal relationships, or life experiences that would give
rise to a presumption of bias so severe as to require excusal;
the district court could have conducted further inquiry if the
parties did not agree on recusal.
In sum, only one of the challenged removed jurors was
likely required to be removed. The other seven jurors at

3
As explained by the majority, Defendants did not and do not now object
to the original procedure ordered by the district court. Majority Op. at
26. That procedure did not assure, although it seemingly allowed for,
opportunity for live in-court rehabilitation for prospective jurors
dismissed for cause. Defendants did not waive the opportunity to object
to dismissal for cause before it occurred, including urging the district
court to conduct further inquiry of specific jurors.
148 USA V. EHMER

issue showed only gradations of possible actual bias. The
district court judge could have exercised its discretion to
dismiss or retain any one of them. See, e.g., United States
v. Mitchell, 568 F.3d 1147, 1152–54 (9th Cir. 2009) (finding
no abuse of discretion when a trial court did not dismiss a
prospective juror for actual bias in spite of her personal
experience related to the trial matter).
B
I nonetheless would hold that the district court’s
grievously erroneous procedure for excusing jurors is not a
basis for reversal, albeit not for the reason the majority
provides. The majority applies the stringent Chapman
standard to conclude that the nine challenged prospective
juror excusals without the assistance of counsel were proper.
Majority Op. at 51. In doing so, the majority appears to
assume that if any of the jurors’ dismissals was an abuse of
discretion, reversal would be required. In my view, as I have
said, the excusal of all but one of the jurors was
discretionary, so proceeding without the input of Defendants
through counsel was an abuse of discretion, as well as a
constitutional violation. I therefore cannot go along with the
majority’s holding that the involvement of counsel and their
clients in the excusal process for the eight identified jurors
clearly made no difference. Id. at 53. As to the seven
discretionary excusals, the trial court may have been
persuaded to exercise its discretion differently than it did had
there been input from Defendants through counsel.
Even so, I would find harmless error, for a reason not
identified by the majority.
The majority does not correctly characterize the nature
of the challenged decisions. Our caselaw assesses the
pertinent harm from improper for-cause excusals from the
 USA V. EHMER 149

jury (as opposed to improper for-cause retention on the jury)
as partiality of the jury actually empaneled; individual,
erroneous juror excusals are not cognizable prejudice and so
not a ground for reversal as long as the overall jury venire
and the empaneled jury are not skewed or biased. See
Holland v. Illinois, 493 U.S. 474, 478–481 (1990); Padilla-
Mendoza, 157 F.3d at 734.
In Padilla-Mendoza, for example, the defendant
challenged the court’s excusal of two individuals who
indicated that they believed marijuana should be legalized.
157 F.3d at 732–33. The defendant contended that the
dismissals, without further inquiry as to the ability of those
potential jurors to be impartial, were an abuse of discretion
that prejudiced the defendant, by inadvertently creating a
“pro-government jury.” Appellant Opening Br. at 28,
Padilla-Mendoza, 157 F.3d 730 (9th Cir. 1998) (No. 96-
550597); Padilla-Mendoza, 157 F.3d at 733. We agreed that
the district court erred. Padilla-Mendoza, 157 F.3d at 733.
But, reframing defendant’s prejudice claim, we stated that
“[t]he core question here is whether defendant’s
constitutional right to an impartial jury has been violated.”
Id. at 734 (emphasis added). As the defendant in Padilla-
Mendoza “presented no evidence that any of the jurors that
found him guilty were unable or unwilling to properly
perform their duties[,] . . . [t]he district court’s dismissals did
not leave a presumptively biased jury,” and no reversal was
required. Id. The “core” consideration as to whether an
erroneous excusal for actual bias requires reversal, we said,
is whether the resulting jury was “unable or unwilling to
properly perform [its] duties.” Id.
We have repeatedly followed this approach to reviewing
juror excusals that constituted manifest error, “requir[ing]
[defendants] to show that the jurors as empaneled were not
150 USA V. EHMER

impartial.” Id. at 734; See United States v. Lindsey, 634 F.3d
541, 553–54 (9th Cir. 2011) (“Even if the district court had
abused its discretion [in dismissing two prospective jurors],
the dismissal . . . did not result in a prejudiced jury panel.”);
see also Alexander, 48 F.3d at 1483–84 (“[Defendants] have
not asserted that the jury which finally tried them was in any
way biased or prejudiced. Consequently, they have not
shown any prejudice from the court’s denial of their
challenges for cause.”); Evans v. Lewis, 855 F.2d 631, 635
(9th Cir. 1988) (“[T]he juror’s removal, even if for
insufficient cause, did not violate Evans’ impartial jury right
as Evans has not shown that as a result an empaneled juror
failed to ‘conscientiously apply the law and find the
facts.’”). 4 This approach follows the Supreme Court’s
holding in Witherspoon that even manifestly erroneous
dismissals of prospective jurors do not require reversal in the
guilt phase of a trial in the absence of a showing of inability
of the empaneled jurors to perform their duties impartially.
See Witherspoon, 391 U.S. at 517–18.

4
This rule of harmlessness has become so embedded in our
jurisprudence that we have routinely applied it in unpublished decisions.
See also United States v. Salcedo, 840 Fed. App’x 184, 185 (9th Cir.
2021) (“Even were these dismissals manifest error or an abuse of
discretion, reversal would still not be warranted because the ‘core
question’ is whether [the defendant’s] constitutional right to an impartial
jury has been violated, and he ‘presented no evidence that any of the
jurors that found him guilty were unable or unwilling to properly perform
their duties.’” (quoting Padilla-Mendoza, 157 F.3d at 734)); United
States v. Cruz, 172 Fed. App’x 168, 170 (9th Cir. 2006) (“We need not
determine whether the district court abused its discretion in improperly
removing the five veniremembers because even if it did so, we cannot
say that the dismissals ‘presumptively resulted in a prejudiced jury
panel.’” (quoting Padilla-Mendoza, 157 F.3d at 734)).
 USA V. EHMER 151

Bordallo is not to the contrary. Bordallo observed a
danger in a district court’s ex parte dismissal of prospective
jurors: “circumstances could arise in which a judge, either
consciously or inadvertently, excused a disproportionate
percentage of a juror population, such as women or
minorities, or otherwise adversely affected the neutrality of
the juror pool.” 857 F.2d at 523 (citation omitted). But
where, as here, the excusals were exclusively on written
questionnaires, it would be possible to discern at least the
possibility of such bias, statistically or otherwise. There was
no attempt to do so in this case.
Defendants make no specific allegation of prejudice
concerning the makeup of the empaneled jury or of the jury
venire; they complain only that the district court’s error
caused the removal of an opportunity for counsel to
“meaningfully shape[] the jury pool.” Thus, while the risk
of bias, conscious or otherwise, underscores the severity of
the constitutional error in dismissing jurors without the input
of counsel or parties, it does not alone determine the
feasibility of identifying the impact of the constitutional
error.
Defendants here have identified only eight individual
jurors, of an initial jury pool of 1,000, as improperly excused
for cause. Of those, as I have said, one was properly excused
for implicit bias. With regard to the rest, Defendants have
not suggested that the for-cause excusals were uniformly
based upon pro-government bias, and it appears that they
were not. Nor have Defendants challenged any member of
the empaneled jury as biased, by considering the jury
questionnaires or any in-court voir dire. Finally, Defendants
do not identify any pattern to the challenged for-cause
excusals that skewed the empaneled jury (or the jury venire)
along racial, ethnic, gender lines or any other proscribed
152 USA V. EHMER

criterion. The jury questionnaires and the district court’s
excusal notes on them were available, so such arguments
could have been made, statistically or otherwise, on the
paper record. Defendants have thus waived any argument
that would require a review of bias of the actually empaneled
jury (or jury venire). Under our case law, the erroneous
excusals were therefore harmless. Padilla-Mendoza, 157
F.3d 730.
I note that the Chapman standard well could preclude a
harmless error ruling under other circumstances. For
example, had this case involved a more extensive challenge
to the on-paper for-cause excusals without lawyer or
defendant input—for example, by identifying hundreds of
prospective jurors dismissed for-cause without the parties’
involvement—the risk of unconscious bias in those excusals
would greatly increase in magnitude, making it harder to
review the excusals by comparing the excluded group with
the empaneled jury or the original venire. Because of the
possible impact of this risk, I repeat what the majority
emphasizes—the process used by the district court to dismiss
potential jurors should never recur. See Majority Op. at 54.
II
As to whether United States v. Cronic 466 U.S. 648
(1984) applies here to the right-to-counsel claim and requires
automatic reversal: The above analysis of the right-to-
counsel claim illustrates why, on the specific facts before us,
Cronic does not apply.
To conclude there was not complete denial of counsel
with respect to a critical stage requiring a Cronic reversal on
the particular facts of this case, the majority correctly states
that “we are presented with an initial threshold question as
to what standard of review we should apply in examining the
 USA V. EHMER 153

correctness of the district court’s for-cause excusals.”
Majority Op. at 50. The majority’s application of Cronic
then turns on whether it is reliably feasible to determine on
the “discrete paper record” that the absence of counsel could
not have caused cognizable harm. Id. at 50, 53. To that
point, I agree with the majority’s analysis. My disagreement
with the majority’s Cronic analysis is the same one I have
already identified, concerning the nature of the harmless
error inquiry where the contention is that a small number of
identified available jurors were improperly excluded.
Again, the majority’s harmless error analysis hinges on
the propriety of the district court’s for-cause dismissal of the
eight challenged individual jurors. Id. at 51–53. As I have
already explained, this mode of review is incorrect. The
approach to assessing harmless error on the facts in this case
depends not on the propriety of the excusal of individual
jurors, but on whether the jury actually empaneled (or the
jury venire from which it was drawn) was skewed or
otherwise unfairly constituted.
Still, for reasons also already explained, the proper
prejudice analysis can be reliably conducted on the present
record, given Defendants’ failure to claim any bias in the
jury venire or the empaneled jury and their ability to do so
given the data available to them.
As I have explained, precisely the same harmless error
inquiry is done when the challenge is on the merits to the
excusal of the jurors. I see no reason there is any more
difficulty in ascertaining prejudice as to the bias of the seated
jury (or jury venire) where the problem is denial of counsel
prior to excusal. As a result, the Cronic consideration
critical here—whether a reliable prejudice analysis is
available under the circumstances despite the violation of the
154 USA V. EHMER

right to counsel—cuts strongly in favor of conducting that
analysis rather than automatically reversing the convictions.
I therefore concur in the majority’s conclusion that Cronic
automatic reversal is not appropriate here. See, e.g.,
Musladin v. Lamarque, 555 F.3d 830 (9th Cir. 2009)
(concluding Cronic automatic reversal not required); United
States v. Benford, 574 F.3d 1228 (9th Cir. 2009) (same); Cf.
United States v. Hamilton, 391 F3d 1066 (9th Cir. 2004)
(concluding Cronic automatic reversal required on facts
unrelated to this case).
III
I additionally diverge from the majority in its analysis of
Defendants’ claim that the district court’s ex parte dismissal
of the prospective jurors violated Defendants’ right to
presence.
I note, as a preliminary matter, that contrary to the
majority’s account, I do not understand Defendants to argue
that they were owed an in-court hearing. Majority Op. at 42.
Defendants do not in any of their briefs maintain that they
had the right to presence at an oral hearing regarding the
juror dismissals, nor did they advance any such contention
at oral argument. Instead, their objection is that they had no
meaningful opportunity, on paper or in person, to review and
contest the district court’s dismissals for cause based on the
questionnaires.
The majority is correct that Defendants draw heavily on
Bordallo to argue that the court improperly excused jurors
outside their presence. As the majority notes, Bordallo dealt
with in-court questioning of potential jurors. 857 F.2d at 522.
Defendants’ analogy to Bordallo, however, focuses on the
after-the-fact disclosure of the juror dismissal, and the
 USA V. EHMER 155

private vetting and striking of jurors for case-specific
reasons.
Despite the limited nature of Defendants’ presence
challenge, I would hold that the right to presence, broadly
construed, was violated by the procedure the district court
used. We have never ruled that the right to presence
protection applies only to in-court proceedings, rather than
to a defendant’s opportunity to present the court with a
position regarding the retention or excusal for cause of
jurors, whether directly or through conferral with counsel in
advance of presentation of a position to the court. See United
States v. Reyes, 764 F.3d 1184, 1194 (9th Cir. 2014); United
States v. Gagnon, 470 U.S. 522, 526 (1985). Nor would any
such ruling be proper.
A criminal defendant’s right to presence during criminal
proceedings involving neither witnesses nor evidence is
grounded in the Fifth Amendment guarantee of due process.
Gagnon, 470 U.S. at 526–27 (1985). The right permits “the
defendant to contribute in some meaningful way to the fair
and accurate resolution of the proceedings against him.”
Reyes, 764 F.3d at 1191 (quoting United States v. Gonzales-
Flores, 701 F.3d 112, 118 (4th Cir. 2012)). Defendants are
generally provided the right to be present during jury
selection because it is one instance in which their presence,
and ensuing insights and control, “ha[ve] a relation,
reasonably substantial, to the fullness of [the defendants’]
opportunity to defend against the charge.” Snyder v. Com.
Of Massachusetts, 291 U.S. 97, 105–106 (1934), overruled
on other grounds by Malloy v. Hogan, 378 U.S. 1 (1964).
Defendants can meaningfully contribute “knowledge of
facts about [themselves] or the alleged crime . . . which may
become important as the individual prejudices or
inclinations of the jurors are revealed” and “[defendants]
156 USA V. EHMER

‘may also be [] member[s] of the community in which [they]
will be tried and might be sensitive to particular local
prejudices [their] lawyer does not know about.’” Reyes, 764
F.3d at 1194 (quoting United States v. Rolle, 204 F.3d 133,
137 (4th Cir. 2000). As a result, defendants ordinarily have
a statutory and constitutional right to be physically present
during voir dire and the empaneling of the jury. See Gagnon,
470 U.S. at 526–29.
A defendant’s contributions are so important to jury
selection that, even during discrete parts of the jury selection
proceedings at which courts have determined a defendant
does not have the right to be physically present, other
safeguards protect the defendant’s Fifth Amendment right to
meaningfully shape the process. Courts have held, for
example, that the constitutional right to presence does not
entitle a defendant to be physically present at brief
interactions between judges and prospective jurors or
interactions in which a defendant’s presence might be
counterproductive. See Gagnon, 470 U.S. at 526.
Defendants also do not have even a statutory right to be
physically present at conferences where the question
whether to excuse a juror for cause is at stake, as the
defendant would not reasonably have had anything to add
beyond the contributions of counsel. See Reyes, 764 F.3d at
1190–91. In so ruling, courts have been careful to emphasize
several considerations that mitigate the need for physical
presence—the defendant’s knowledge of the juror’s
statements and communications, ability to confer with
counsel ahead of excusals, and ability to confirm that the
correct excusals have been made. See, e.g., Reyes, 764 F.3d
at 1191–92, 1197.
Reyes, for example, held that under certain
circumstances, a defendant does not have a statutory or
 USA V. EHMER 157

constitutional right to be present at side bar conferences
between a judge and counsel to exercise for-cause and
peremptory strikes. Id. at 1192–93, 1196–97. Addressing
the defendant’s statutory right to presence, Reyes reasoned
that such conferences involved questions of law within the
special meaning of that term in Rule 43, and that the
defendant’s presence would not have been helpful. Id. The
side bar exchanges in Reyes, however, involved “arguments
based on facts that had already been elicited in [the
defendant’s] presence” and the court “permitted [the
defendant’s] lawyers to confer with their client before
making decisions, thereby giving his counsel an opportunity
to explain the government’s position . . . after the side bar
exchanges.” Id. at 1191–92 (emphasis added). The
defendant in Reyes was present for the general questioning
of jurors and had the ability to confer with counsel before
each sidebar exchange. Id. at 1186. As a result, the court
emphasized, the defendant “was able to observe the
composition of the jury on an ongoing basis and correct any
mistakes made by his lawyer in exercising his peremptory
challenges because the district court struck each juror in
open court.” Id. at 1997. Reyes also concluded that the
judge’s questioning of one juror without the defendant
present did not violate the defendant’s Sixth Amendment
rights, reasoning that no violation occurred because “[t]he
exchange between the court and [juror] was brief, and [the
defendant’s] attorney could have offered his client a full
account of the conversation . . . given the brevity of the
exchange and the court’s willingness to permit them to
confer throughout voir dire.” Id. at 1194. In sum, critical to
Reyes’s holding that the defendant’s statutory and
constitutional right to presence was not violated by exclusion
from side bars between a judge and counsel (and the
158 USA V. EHMER

harmlessness of the brief questioning of one juror outside the
defendant’s presence) was the ability of the defendant to
witness voir dire, confer repeatedly with counsel, and
confirm that counsel acted appropriately based on the
defendant’s input by witnessing the striking of jurors in open
court. Id. at 1191–92, 1194.
Gagnon similarly held that given the brevity of the
interaction, court questioning of a juror outside the presence
of the defendant to assess bias did not violate the defendant’s
constitutional right to presence. 470 U.S. at 527. There, the
Supreme Court emphasized that the “encounter between the
judge, the juror, and Gagnon’s lawyer was a short interlude
in a complex trial.” Id.
In contrast to the circumstances in Reyes and Gagnon, it
is undisputed that Defendants did not have access to the
responses of prospective jurors before the court issued for-
cause excusals; the questioning of the jurors was extensive
(the questionnaire is more than 40 pages long); and the
proceeding involved more than 1,000 juror questionnaires
(although, again, we do not know the number of for-cause
excusals); and Defendants were not given the opportunity to
confer with counsel before the court issued the dismissals.
In short, this is “a case where the defendant was [both
physically and virtually] absent when jurors were excused or
when the jury was impaneled.” Reyes, 764 F.3d at 1197.
The above considerations, particularly including the
ability to confer with counsel before conferences with the
court regarding prospective jurors, underscores the way the
rights to counsel and to presence are closely linked, as the
Supreme Court has recognized. “The right to be heard
would be, in many cases, of little avail if it did not
comprehend the right to be heard by counsel.” Geders, 425
 USA V. EHMER 159

U.S. 80, 88–89 (1976) (internal quotation marks omitted)
(quoting Powell v. Alabama, 287 U.S. 45, 68–69 (1932) ; see
also Oyler v. Boles, 368 U.S. 448, 452 (1962) (“Although
these cases were specifically concerned with the right to
assistance of counsel, it would have been an idle
accomplishment to say that due process requires counsel but
not the right to reasonable notice and opportunity to be
heard.”).
In this case, neither Defendants nor their lawyers were
permitted to review juror questionnaires; represented in the
in camera proceeding in which 430 prospective jurors were
dismissed; or able to verify, both initially and when the error
could have been remedied, which jurors were dismissed. So
Defendants were not provided a full “opportunity to defend
against the charge.” Snyder, 291 U.S. at 105–106. Absent
other safeguards, Defendants had a right to be heard
themselves, in some manner, as to the excusal of prospective
jurors.
I nonetheless agree with the majority that “there was no
prejudicial impingement on . . .the due process right to be
heard with respect to these strikes,”—albeit, once more, my
prejudice analysis differs from the majority’s. Majority Op.
at 53. As I have explained, when Defendants challenge the
propriety of a district court’s dismissal of jurors for cause,
the core consideration for prejudice purposes is the character
of the resulting jury (or jury venire). See Padilla-Mendoza,
157 F.3d at 734. Because Defendants do not allege that any
empaneled juror (or jury venire) was not impartial, and do
not contend that the district court’s excusals impermissibly
skewed the jury venire or the empaneled jury, the district
court’s erroneous failure to provide Defendants an
opportunity to be heard regarding the excusals, did not,
beyond a reasonable doubt, affect the verdict. See id.
160 USA V. EHMER

* * *
Because I ultimately agree with the majority that Cronic
does not apply on the particular facts before us and that the
district court’s violation of Defendants’ rights to counsel and
presence were harmless, I concur in the result of Part II of
the majority opinion. I concur in full in the remainder of the
opinion.