Government (1390) Motion To Suppress Evidence

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 1 of 16
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DANIEL G. BOGDEN
United States Attorney
District of Nevada
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
NADIA J. AHMED
Assistant United States Attorneys
ERIN M. CREEGAN
Special Assistant United States Attorney
501 Las Vegas Blvd. South, Suite 1100
Las Vegas, Nevada 89101
(702) 388-6336
steven.myhre@usdoj.gov
nicholas.dickinson@usdoj.gov
nadia.ahmed@usdoj.gov
erin.creegan@usdoj.gov
Attorneys for the United States
UNITED STATES DISTRICT COURT

DISTRICT OF NEVADA
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UNITED STATES OF AMERICA,
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Plaintiff,
v.
ERIC J. PARKER,
O. SCOTT DREXLER,
RICHARD R. LOVELIEN,
STEVEN A. STEWART,
TODD C. ENGEL, and
GREGORY P. BURLESON,
2:16-CR-00046-GMN-PAL
GOVERNMENTS
MOTION
IN
LIMINE
TO
PRECLUDE
REFERENCES
TO
EXTRAJUDICIAL
STATEMENTS,
AGENCY ACTIONS OR OTHER
PROCEEDINGS
Defendants.
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CERTIFICATION: Pursuant to Local Rule 12-1, this Motion is timely filed.

The United States, by and through the undersigned, respectfully asks this
Court to grant this motion in limine, for the reasons that follow.
INTRODUCTION
On March 2, 2016, a federal grand jury in the District of Nevada returned a
sixteen-count superseding indictment against defendants Parker, Drexler,
Lovelien, Stewart, Engel, Burleson, and thirteen others. The indictment charged
them with Conspiracy to Commit an Offense Against the United States, 18 U.S.C.
371; Conspiracy to Impede or Injure a Federal Officer, 18 U.S.C. 372; Use and
Carry of a Firearm in Relation to a Crime of Violence, 18 U.S.C. 924(c); Assault
on a Federal Officer, 18 U.S.C. 111(a)(1), (b); Threatening a Federal Law
Enforcement Officer, 18 U.S.C. 115(a)(1)(B); Obstruction of the Due
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Administration of Justice, 18 U.S.C. 1503; Interference with Interstate Commerce

by Extortion, 18 U.S.C. 1951; and Interstate Travel in Aid of Extortion, 18 U.S.C.
1952. These charges stem from a massive, unprecedented assault on law
enforcement officers duly executing Orders issued from the United States District
Court for the District of Nevada.
This is an unusual case in that the major acts of the crimes charged, and the
defendants participation in them, are captured extensively in video and
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photographic evidence. Moreover, many defendants have made statements
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publically, often also in videotaped or recorded interviews, admitting their
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participation in these acts. While it is within the defendants rights to test the
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governments evidence in a trial, and to present any and all legally supported
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defenses that they may have, the government has reason to believe that the
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defendants will seek to divert the jurys attention to matters collateral to this case
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in the hope that it can place the federal government, and more specifically the
Bureau of Land Management (BLM) and its officers, on trial, in the hope of
engendering confusion, sympathy, or other considerations may distract the jury
from the evidence.
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Specifically, the government moves to preclude any references in argument

or the questioning of witnesses regarding the following matters:
References to the occupation of the Malheur National Wildlife
Refuge, the subsequent trial, United States v. Ammon Bundy et al.,
or the result in that trial.
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impoundment operation or agency, or officer, misconduct in this or
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References to supposed mistreatment of cattle during the

other impoundment operations or investigations.
Arguments or opinions that the federal government, its officers and
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agents or its agencies are improperly and excessively armed, use
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military tactics, act outside their authority or have engaged in the
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use of excessive force in other venues or at other times.
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Hearsay statements or opinions regarding the BLM, the

impoundment operation, or the events of April 12, including
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opinions and statements of elected or appointed government
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officials (such as Nevada Governor Sandoval, U.S. Senators Orrin
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Hatch, Harry Reid, U.S. Congressman-Elect Ruben Kikuen,
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Nevada Assemblywoman Michelle Fiore).
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Legal arguments or opinions that the federal government does not,

or should not, own public lands, that the federal government does
not, or should not own the Gold Butte range, or that Gold Butte
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Range has now been designated a National Monument by the
President of the United States.
Legal arguments or opinions that law enforcement officers within

the Department of Interior are not constitutional, that natural
law or other authority permits the use of force against law
enforcement officers in defense of property or individual rights, or
that the U.S. District Court for the District of Nevada is
illegitimate.
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LEGAL STANDARD
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A.
Precluding Evidence and Argument
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It is well established that motions in limine are a proper tool for triggering
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the trial courts power to review and exclude evidence and argument from trial. See,
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e.g., United States v. Vasquez-Landaver, 527 F.3d 798, 802 (9th Cir. 2008)
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(upholding the trial courts granting of governments motion in limine to exclude
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evidence of duress); United States v. Mohamed, 457 F. App'x 635, 636 (9th Cir. 2011)
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(upholding district courts grant of governments motion in limine to exclude
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evidence regarding duress and necessity); United States v. Cramer, 532 F. App'x
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789, 791 (9th Cir. 2013) (affirming district courts grant of governments motion in
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limine to preclude defendant from presenting evidence of self-defense at trial).
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If information the defendant wishes to admit is not relevant or admissible, it
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is proper to exclude both the irrelevant evidence and any argument pertaining to it.
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See United States v. Sapse, Case 13-10592, Doc. 79 (9th Cir. Jan. 7, 2016)
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(Appellant failed to establish the connection between the FDAs politics and the
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issues in the case. Therefore, the district court properly excluded this evidence as
being irrelevant.) (citing United States v. Vallejo, 237 F.3d 1008, 1015-17 (9th Cir.
2001)); United States v. Scarmazzo, 554 F.Supp.2d 1102, 1107 (E.D. Cal.2008)
(governments motion in limine to exclude evidence and argument granted where
defendants wanted to argue to the jury that they had a good faith belief and relied
on the advice of counsel that is was lawful to sell medical marijuana because the
offense was a general intent crime and was therefore not relevant).
B.
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Federal Rule of Evidence 401

Evidence which is not relevant is not admissible. Fed. R. Evid. 402.
Evidence is relevant only if it has any tendency to make the existence of an element
slightly more [or less] probable than it would be without the evidence. Jackson v.
Virginia, 443 U.S. 307, 320 (1979). In other words, only evidence that is relevant to
the elements of the charge against defendant, or to a legal defense, is admissible at
trial. See Fed. R. Evid. 402. Although a defendant is entitled to confront witnesses
and to present a defense, he has no right to present irrelevant evidence. See Wood
v. Alaska, 957 F.2d 1544, 1549 (9th Cir. 1992). The Court has discretion to
determine which issues are relevant to the proceedings. See id.
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Defenses that are not legally cognizable are always properly excluded as
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irrelevant. See United States v. Southers, 583 F.2d 1302, 1305 (5th Cir. 1978)
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(evidence of eventual repayment of misapplied funds does not negate the requisite
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intent); United States v. Harris, 313 Fed. Appx. 969, at *1 (9th Cir. 2009) vacated
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on other grounds, Harris v. United States, 130 S.Ct. 3542 (2010) (in public
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corruption case, evidence of city councils motivation for rescinding public contracts
irrelevant to issue of whether defendant engaged in self-dealing); United States v.
Urfer, 287 F.3d 663, 665 (7th Cir. 2002) (in prosecution for willful damage to federal
government property, district court properly refused to allow defendants to turn the
trial into a referendum on national defense strategy).
C.
Federal Rule of Evidence 403
Even if evidence offered by a defendant has probative value, it is properly
excluded under Rule 403 of the Federal Rules of Evidence. That rule provides, in its
pertinent part:
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Although relevant, evidence may be excluded if its probative value is

substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury, or by considerations of undue delay,
waste of time [....]
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Fed. R. Evid. 403; see also United States v. Sarno, 73 F.3d 1470, 1488-89 (9th Cir.
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1995) (exclusion of evidence relating to proof of fact that was not element of charge
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not abuse of discretion where such evidence might well have (as the district court
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here concluded) induced confusion in the minds of the jury and distracted them from
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the true issue [of the charge]).
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D.
Jury Nullification
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When a defendant asks the jury to render a verdict based on something other
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than the evidence of guilt or innocence in the case, that defendant is seeking jury
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nullification. Nullification is a violation of a jurors oath to apply the law as
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instructed by the court. Merced v. McGrath, No. C-03-1904 CRB, 2004 WL 302347,
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at *6 (N.D. Cal. Feb. 10, 2004), affd, 426 F.3d 1076 (quoting United States v.
Thomas, 116 F.3d 606, 614 (2d Cir. 1997)).
When a defendant introduces evidence, arguments, or questions designed to
encourage jury nullification, the court has a duty to forestall or prevent juror
nullification by firm instruction or admonition. Thomas, 116 F.3d at 616 (2d
Cir.1997). See also United States v. Young, 470 U.S. 1, 710 (1985) (holding that
the district court has a duty to prevent improper arguments to the jury, including
those designed to divert the jury from its duty to decide the case on the evidence);
United States v. Sepulveda, 15 F.3d 1161, 1190 (1st Cir. 1993) (A trial judge . . .
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may block defense attorneys attempts to serenade a jury with the siren song of
nullification.); Zal v. Steppe, 968 F.2d 924, 930 (9th Cir. 1992) (Trott, concurring)
([N]either a defendant nor his attorney has a right to present to a jury evidence
that is irrelevant to a legal defense to, or an element of, the crime charged. Verdicts
must be based on the law and the evidence, not on jury nullification as urged by
either litigant.); United States v. Trujillo, 714 F.2d 102, 106 (11th Cir. 1983)
([D]efense counsel may not argue jury nullification during closing argument.);
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United States v. Ernst, No. 10-CR-60109-AA-01, 2014 WL 1303145, at *1 (D. Or.
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Mar. 31, 2014) (Defendant was not entitled to question the jury as to the validity
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of federal law, and he was not entitled to present arguments in favor of jury
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nullification.).
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In United States v. Komisaruk, 885 F.2d 490 (9th Cir. 1980), the defendant
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was convicted of willfully damaging government property by vandalizing an Air
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Force computer. Id. at 491. On appeal, she argued that the district court erred in
granting the government's motions in limine to preclude her from introducing her
political, religious, or moral beliefs at trial. Id. at 492. In particular, she argued
that she was entitled to introduce evidence of her anti-nuclear war views, her belief
that the Air Force computer was illegal under international law, and that she was
otherwise morally and legally justified in her actions. Id. at 492-93. The district
court held that her personal disagreement with national defense policies could not
be used to establish a legal justification for violating federal law nor as a negative
defense to the government's proof of the elements of the charged crime, (Id. at 492),
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and the Ninth Circuit affirmed.

In United State v. Blixt, the court issued several curative instructions after
defense counsels closing argument appeared to encourage nullification: counsel
decried federal intervention in local matters, highlighted that the judge was
appointed by the President and affirmed by the Senate (arms of the federal
government), questioned why the case was not brought in state court, and pointed
out that the government charging the case is the same government that is at war
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in Iraq. 548 F.3d 882, 885 (9th Cir. 2008). See also United States v. Ogle, 613 F.2d
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233, 241 (10th Cir. 1979) (holding that the district judge properly curtailed the
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defendants erroneous line of questioning, a Fourth of July speech based not upon
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our law or upon our system of government); United States v. Bryant, 5 F.3d 474,
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476 (10th Cir. 1993) (Trial court properly prohibited defense counsel from inquiring
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into basis for federal, rather than state, prosecution.); United States v. Trevino, 491
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F.2d 74, 77 (5th Cir. 1974) (Thornberry, J., concurring in part and dissenting in
part) (Evidence that investigation was initiated because of reports of earlier,
uncharged thefts is precisely the kind of evidence which has no place before the
jury.).
Likewise, in Zal, the court affirmed contempt orders against defense counsel
arising from improper questions he asked witnesses that used words linked to
excluded defenses. 968 F.2d at 92531 (9th Cir. 1992). The court ordered Zal not to
use fifty words taken from Zals previous attempts to attack the morality of
abortionsuch as holocaust, bloodletting, and executionin order to
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encourage nullification of criminal trespass law (where the trespass was of an

abortion clinic) out of sympathy for the defendants cause. Id. at 92526. Zal
proceeded to flout the trial courts orders excluding certain defenses in service of a
higher law.
In United States v. Thompson, the court affirmed the preclusion of jury
nullification in defense counsels closing argument comparing the defendants
conduct with those who had done similar acts but were not prosecuted. 253 F.3d
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700, 2001 WL 498430, at *16 (5th Cir. 2001). Mentioning facts about immunized or
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uncharged witnesses was an attempt to serenade [the] jury with the siren song of
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nullification. Id. (citing Sepulveda, 15 F.3d at 1190)). See also United States v.
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House, No. 14-CR-10, 2015 WL 1058019, at *2 (N.D. Ill. Mar. 6, 2015) (The Court
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also grants the Government's motion to the extent it asks the Court to bar defense
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counsel from introducing evidence or argument regarding the Governments and
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the agents motivations for investigating or prosecuting the case, or claims of
selective prosecution.) (citing United States v. Goulding, 26 F.3d 656, 667 (7th Cir.
1994)).
ARGUMENT
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A.
Malheur Case
Not one of the defendants in the first trial was charged in United States v.
Ammon Bundy in the District of Oregon. Nonetheless, the defendants may try to
introduce references to the case, most likely to highlight that most of the defendants
charged in the first Oregon trial were acquitted (the jury hung as to one count
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against Ryan Bundy). This argument invites the jury to make a determination
based on something other than whether the evidence in this case is sufficient to
convict or not. It is therefore improper.
In United States v. Kerley, 643 F.2d 299 (5th Cir. 1981), the court wrote that
... evidence of a prior acquittal is not relevant because it does not prove innocence
but rather merely indicates that the prior proceeding failed to meet its burden of
proving beyond a reasonable doubt at least one element of the crime. Fed.R.Evid.
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401. But evidence of a prior acquittal is not relevant because it does not prove
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innocence but rather merely indicates that the prior proceeding failed to meet its
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burden of proving beyond a reasonable doubt at least one element of the crime.
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United States v. Gambino, 818 F. Supp. 536, 539 (E.D.N.Y.1993) (quoting United
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States v. Kerley, 643 F.2d 299 (5th Cir.1981)); Gentile v. Cnty. of Suffolk, 926 F.2d
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142, 161 (2d Cir.1991) ([A] judgment of acquittal does not necessarily mean that
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the defendant is innocent; it means only that the government has not met its burden
of proof beyond a reasonable doubt. (citing Viserto, 596 F.2d at 53637)); United
States v. Jones, 808 F.2d 561, 567 (7th Cir. 1986) (Here, the acquittal shows only
that state prosecutors failed to meet their burden of proof.).
Argument with regard to the Malheur case is even less relevant as it deals
with a completely separate course of conduct, rather than a prior acquittal on the
same conduct.
It is settled that a criminal defendant ordinarily may not introduce

evidence at trial of his or her prior acquittal of other crimes. The hearsay,
relevance, and more-prejudicial-than-probative rules generally preclude
the admission of evidence of such prior acquittals.
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United States v. Williams, 784 F.3d 798, 803 (D.C. Cir. 2015). Therefore, the
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defendants should not be permitted to introduce any evidence or make any
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argument with reference to the Malheur case.
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B.
Perceived Governmental Misconduct
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The defendants have made arguments that they perceived the government
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to be in the wrong for impounding Cliven Bundys cattle and that they felt their
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actions in Bunkerville were justified. They have in part based that argument on the
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claim the government killed some of Cliven Bundys cattle, or that the government
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is progressively overreaching in numerous contexts outside the impoundment
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operation in this case. Lawmakers have also opined that federal law enforcement
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officers appear to be excessively equipped for law enforcement duties; that they
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appear militaristic and overbearing; and that they Whatever the personal or
political opinions and beliefs on these matters, arguments that the agency is or is
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not excessively equipped or acting militaristically is not relevant to any issue in the
case, provides no excuse or justification for any of the charged offenses and invites
improper jury nullification.
To permit nullification in cases where a defendant has a good reason for his
conduct when motive is not an element of the crime allows jurors to use their
individualized set of beliefs as to good reasons to be determinative of guilt or
innocence. Reasons, good or bad, are of course relevant to sentencing, but they are
not accepted by courts as a basis for verdicts. United States v. Rosenthal, 266 F.
Supp. 2d 1068, 1075 (N.D. Cal. 2003), revd on other grounds, 454 F.3d 943 (9th Cir.
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2006). Because the defendants motives for violating federal law are not relevant,
any such evidence should be excluded.
C.
Statements of Third Parties

Federal Rule of Evidence 801(c) defines hearsay as a statement not made
while testifying at a current trial or hearing, made to provide the truth of the matter
asserted. Further, Federal Rule of Evidence 602 provides that: A witness may
testify to a matter only if evidence is introduced sufficient to support a finding that
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the witness has personal knowledge of the matter. It is not appropriate for the
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defendants to introduce opinions or hearsay statements of public officials, or anyone
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else they think the jury might respect, showing directly or indirectly either that the
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third party approves of the defendants actions in some way. Whether a public
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official approved or did not approve of the defendants conduct in this case is simply
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not relevant to the question of whether sufficient evidence exists to prove the crimes
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charged. Moreover, introduction of a statement by a public commenter who simply
lacks any personal knowledge about the facts of the case has a high likelihood of
confusing the jury. Such statements should be precluded.
D.
Legal Argument
The defendants claimed views on the validity of federal laws are immaterial
to any admissible defense. See United States v. Benabe, 654 F.3d 753, 767 (7th Cir.
2011) (citing cases)); United States v. Moore, 627 F.2d 830, 833 (7th Cir. 1980)
(Good faith disagreements with the law or good faith beliefs that it is
unconstitutional are not defenses.). A defendants belief that the law should not
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apply to him or that the law itself is invalid or unconstitutional provide no such
defense. United States v. Dack, 987 F.2d 1282, 1285 (7th Cir. 1993) (district court
did not err in advising the jury that a disagreement with or a protest to the tax
laws was not a defense); United States v. Hairston, 819 F.2d 971, 973 (10th Cir.
1987) ([G]ood faith belief that [the laws] are unconstitutional provides no defense).
Arguments regarding the validity of federal law are consistently rejected in
multiple contexts. For example, contentions that one does not have to pay taxes
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because the code is unconstitutional or invalid are not permissible good faith claims
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and need not be heard by the jury. Cheek v. United States, 498 U.S. 192, 206 (1991)
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(holding a defendant's views about the validity of the tax statutes are irrelevant to
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the issue of willfulness and need not be heard by the jury). Such contentions do
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not arise from innocent mistakes caused by the complexity of the Internal Revenue
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Code. Rather, they reveal full knowledge of the provisions at issue and a studied
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conclusion, however wrong, that those provisions are invalid and unenforceable.
Cheek, 498 U.S. at 205. Likewise, not paying taxes because you do not like how the
money is spent or because you do not like various government policies are not valid
defenses to a tax crime. See United States v. Smith, 618 F.2d 280, 282 (5th Cir.
1980); United States v. Pilcher, 672 F.2d 875, 877 (11th Cir. 1982); cf. United States
v. Lee, 455 U.S. 252, 260 (1982) ([t]he tax system could not function if
denominations were allowed to challenge the tax systems because tax payments
were spent in a way that violates their religious beliefs).
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Evidence or argument advancing the defendants claimed beliefs as a basis

for a defense of good faith should therefore be excluded as improper jury
nullification arguments. See United States v. Young, 470 U.S. 1, 710 (1985)
(holding that district court has duty to prevent counsel from making improper
arguments to the jury, including those designed to divert the jury from its duty to
decide the case on the evidence); United States v. Ernst, No. 10-CR-60109-AA-01,
2014 WL 1303145, at *1 (D. Or. Mar. 31, 2014) (Defendant was not entitled to
question the jury as to the validity of federal law, and he was not entitled to present
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arguments in favor of jury nullification.).
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CONCLUSION
WHEREFORE, for all the foregoing reason, the government respectfully
requests that the Court grant its Motion in Limine and enter an order precluding
references to extrajudicial statements and opinions about agency conduct,
references to government agency misconduct in other contexts, references to abuse
of cattle, and references to legal arguments about land ownership.
DATED this 24th day of January 2017.
Respectfully submitted,
DANIEL G. BOGDEN
United States Attorney
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//s//
______________________________
STEVEN W. MYHRE
NICHOLAS D. DICKINSON
NADIA J. AHMED
Assistant United States Attorneys
ERIN M. CREEGAN
Special Assistant United States Attorney
Attorneys for the United States
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CERTIFICATE OF SERVICE
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I certify that I am an employee of the United States Attorneys Office. A copy
of the foregoing GOVERNMENTS MOTION IN LIMINE TO PRECLUDE
REFERENCES TO EXTRAJUDICIAL STATEMENTS, AGENCY ACTIONS OR
OTHER PROCEEDINGS was served upon counsel of record, via Electronic Case
Filing (ECF).
DATED this 24th day of January, 2017.
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/s/ Steven W. Myhre

______________________________
STEVEN W. MYHRE
Assistant United State Attorney
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Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 1 of 16

UNITED STATES DISTRICT COURT

UNITED STATES OF AMERICA,

CERTIFICATION: Pursuant to Local Rule 12-1, this Motion is timely filed.

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 2 of 16

On March 2, 2016, a federal grand jury in the District of Nevada returned a

sixteen-count superseding indictment against defendants Parker, Drexler,

Carry of a Firearm in Relation to a Crime of Violence, 18 U.S.C. 924(c); Assault

on a Federal Officer, 18 U.S.C. 111(a)(1), (b); Threatening a Federal Law

Enforcement Officer, 18 U.S.C. 115(a)(1)(B); Obstruction of the Due

Administration of Justice, 18 U.S.C. 1503; Interference with Interstate Commerce

photographic evidence. Moreover, many defendants have made statements

publically, often also in videotaped or recorded interviews, admitting their

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 3 of 16

engendering confusion, sympathy, or other considerations may distract the jury

from the evidence.

Specifically, the government moves to preclude any references in argument

References to the occupation of the Malheur National Wildlife

Refuge, the subsequent trial, United States v. Ammon Bundy et al.,

or the result in that trial.

impoundment operation or agency, or officer, misconduct in this or

References to supposed mistreatment of cattle during the

Arguments or opinions that the federal government, its officers and

agents or its agencies are improperly and excessively armed, use

military tactics, act outside their authority or have engaged in the

use of excessive force in other venues or at other times.

Hearsay statements or opinions regarding the BLM, the

opinions and statements of elected or appointed government

officials (such as Nevada Governor Sandoval, U.S. Senators Orrin

Hatch, Harry Reid, U.S. Congressman-Elect Ruben Kikuen,

Nevada Assemblywoman Michelle Fiore).

Legal arguments or opinions that the federal government does not,

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 4 of 16

Range has now been designated a National Monument by the

President of the United States.

Legal arguments or opinions that law enforcement officers within

law or other authority permits the use of force against law

enforcement officers in defense of property or individual rights, or

that the U.S. District Court for the District of Nevada is

Precluding Evidence and Argument

(upholding the trial courts granting of governments motion in limine to exclude

(upholding district courts grant of governments motion in limine to exclude

limine to preclude defendant from presenting evidence of self-defense at trial).

If information the defendant wishes to admit is not relevant or admissible, it

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 5 of 16

(governments motion in limine to exclude evidence and argument granted where

Federal Rule of Evidence 401

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 6 of 16

irrelevant to issue of whether defendant engaged in self-dealing); United States v.

trial into a referendum on national defense strategy).

Federal Rule of Evidence 403

Even if evidence offered by a defendant has probative value, it is properly

Although relevant, evidence may be excluded if its probative value is

the true issue [of the charge]).

nullification. Nullification is a violation of a jurors oath to apply the law as

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 7 of 16

Thomas, 116 F.3d 606, 614 (2d Cir. 1997)).

When a defendant introduces evidence, arguments, or questions designed to

nullification by firm instruction or admonition. Thomas, 116 F.3d at 616 (2d

United States v. Ernst, No. 10-CR-60109-AA-01, 2014 WL 1303145, at *1 (D. Or.

was convicted of willfully damaging government property by vandalizing an Air

Case 2:16-cr-00046-GMN-PAL Document 1390 Filed 01/24/17 Page 8 of 16

and the Ninth Circuit affirmed.