United States v. Ibrahim Bare

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 14-10475
Plaintiff-Appellee,
D.C. No.
v. 3:12-cr-08142-NVW-1
IBRAHIM FAHAB BARE,
Defendant-Appellant. OPINION
Appeal from the United States District Court
for the District of Arizona
Neil V. Wake, District Judge, Presiding
Argued and Submitted
August 13, 2015—San Francisco, California
Filed November 24, 2015
Before: Alex Kozinski and Richard C. Tallman, Circuit
Judges, and Lee H. Rosenthal,* District Judge.
Opinion by Judge Tallman;
Dissent by Judge Kozinski
*
The Honorable Lee H. Rosenthal, United States District Judge for the
Southern District of Texas, sitting by designation.
2 UNITED STATES V. BARE
SUMMARY**
Criminal Law
The panel affirmed a sentence imposed upon a defendant,
a non-Indian who lives on tribal land, for two counts of being
a felon in possession of a firearm in violation of 18 U.S.C.
§§ 922(g)(1) and 924(a)(2).
The panel held that the district court did not err
in applying a 4-level enhancement under U.S.S.G.
§ 2K2.1(b)(6)(B) for use of a firearm in connection with
another felony offense. The panel held that due to the
Assimilative Crimes Act, it does not matter whether the
requisite felony offense occurred on tribal lands or within the
state’s jurisdiction in order to apply the § 2K2.1(b)(6)(B)
enhancement. The panel concluded that the district court
therefore properly applied the enhancement based on the
defendant discharging a firearm over the head of an Indian
while on the Navajo Reservation, which if committed
elsewhere in Arizona, would qualify as felony disorderly
conduct under Arizona Revised Statutes § 13-2904(A)(6).
The panel held that the district court did not abuse its
discretion by imposing a condition of supervised release
permitting searches of the defendant’s computers and other
electronic devices by a probation officer. The panel held that
so long as a district court makes a factual finding establishing
some nexus between computer use and one of the goals
articulated in 18 U.S.C. § 3553(a)(2)(B), (a)(2)(C), or
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. BARE 3
(a)(2)(D), it is not an abuse of discretion for a district court to
impose a condition of supervised release permitting the
search of a defendant’s personal computers. The panel held
that the district court’s finding that a nexus existed between
the defendant’s potential computer use while he remains
under supervised release and the need to deter his future
criminal conduct—i.e., repeating the possession and pawning
of prohibited firearms—was not clearly erroneous and was
well-supported by the facts.
Judge Kozinski dissented from the portion of the opinion
approving the supervised release condition. He wrote that
the majority disregards the command in 18 U.S.C.
§ 3583(d)(2)—that supervised release conditions impose “no
greater deprivation of liberty than is reasonably necessary”
to achieve the goals of supervised release—by allowing
probation officers to search the defendant’s computer at any
time, for any reason, even though the defendant did not use
a computer to carry out his crime, and (so far as the panel
knows) did not even own a computer when he committed the
offense.
COUNSEL
Keith J. Hilzendeger (argued), Assistant Federal Public
Defender; Jon M. Sands, Federal Public Defender, Phoenix,
Arizona, for Defendant-Appellant.
Lacy Cooper (argued), Assistant United States Attorney; John
S. Leonardo, United States Attorney; Mark S. Kokanovich,
Assistant United States Attorney, Deputy Appellate Chief,
Phoenix, Arizona, for Plaintiff-Appellee.
4 UNITED STATES V. BARE
OPINION
TALLMAN, Circuit Judge:
On December 13, 2012, a jury convicted Ibrahim Fahab
Bare—a non-Indian who lives on tribal land with his
common-law wife—of two counts of being a felon in
possession of a firearm. Bare challenges his 4-level
sentencing enhancement for his use of a firearm in connection
with another felony offense, as well as his condition of
supervised release permitting searches of his computers and
other electronic devices by a United States Probation Officer.
We hold that due to the Assimilative Crimes Act (“ACA”), it
does not matter whether the requisite felony offense occurred
on tribal lands or within the state’s jurisdiction in order to
apply an enhancement for discharging a firearm under United
States Sentencing Guidelines § 2K2.1(b)(6)(B). We further
hold that so long as a district court makes a properly
supported factual finding from the record before it,
establishing some nexus between computer use and the need
for the sentence imposed to accomplish deterrence, protection
of the public, or rehabilitation of the defendant, it is not an
abuse of discretion for the district court to impose a condition
of supervised release permitting the search of a defendant’s
personal computers. Because the district court made such a
permissible factual finding establishing the nexus here, and
because Bare is subject to punishment for committing the
felony offense of disorderly conduct involving weapons in
connection with his felon in possession conviction, we affirm.
I
On April 9, 2012, Navajo Tribal Police responded to a
call reporting shots fired at Bare’s residence located on the
UNITED STATES V. BARE 5
Navajo Reservation in Whippoorwill, Arizona.1 Witnesses
reported to officers that Bare and Keithaniel Begay began to
argue in the threshold of Bare’s residence over Bare’s refusal
to provide cigarettes to an intoxicated Begay. As the
argument escalated, Bare pulled out a pistol and pointed it at
Begay. Unarmed, Begay turned and started to walk away
from the residence when Bare fired a shot over Begay’s head.
According to one of Begay’s sisters, Bare also threatened to
kill Begay. Another sister—who is also Bare’s neighbor—
reported that Bare threatened her by warning, “You know I
can kill you.”
Bare’s common-law wife consented to a search of their
shared residence. Officers recovered a nine-millimeter
Jimenez Arms pistol inside a bag of dog food located in the
dining room, as well as one spent shell casing located on the
ground outside the home. After ignoring multiple commands
to submit to arrest, the officers pepper sprayed Bare and took
him into custody. The case was referred to federal authorities
for prosecution.
On May 7, 2012, the United States filed a complaint in
federal court alleging Bare committed a felony firearms
offense. Because Bare failed to appear in court, federal
agents went to his residence with an arrest warrant. When the
agents approached, Bare ran inside the residence, locked the
front door, and began destroying items. After Bare unlocked
1
To the extent we refer to facts contained in the Presentence Report to
discuss relevant portions of Bare’s offense conduct and criminal history,
we partially lift the order sealing the Presentence Report. The Presentence
Report was expressly adopted and considered by the district court in
fashioning the appropriate sentence and conditions at issue here.
6 UNITED STATES V. BARE
the door and emerged from the residence, agents took him
into custody and searched the home. The search revealed:
An Elk River Tool and Die Inc. model ERTD
AK47 7.62 caliber [assault] rifle with an
attached magazine loaded with 47 rounds of
7.62x39 ammunition[;] a Savage model 110E
.30-06 caliber rifle with six rounds attached to
the butt of the rifle, . . . a BB handgun, two
ammunition magazines, 81 rounds of various
brand 9-millimeter ammunition, 50 rounds of
Remington .45 caliber ammunition, and 50
rounds of Remington .32 caliber ammunition.
The agents also found pills, drugs, a digital scale, and a
financial ledger “titled ‘My Money’ with names and numbers
next to the names.” Bare admitted he knew he could not
possess firearms due to prior felony convictions.2
Bare denied ownership of the weapons. He claimed two
of the firearms belonged to family members, and the rest
“were in his possession as they were ‘pawned’ as part of his
self-employed, in-home pawn business.” Bare’s common-
law wife also told investigators during an interview that she
“believed the financial ledger discovered in the residence was
a list of Bare’s pawn customers.” She acknowledged her
prior awareness of the firearms that had been found in their
home and told agents she thought Bare had “taken them in
pawn.”
2
Bare was convicted in 2000 for possession of burglary tools, and in
2001 and 2002 for resisting arrest, all felonies.
UNITED STATES V. BARE 7
On December 13, 2012, a jury found Bare guilty of two
counts of being a felon in possession of a firearm in violation
of 18 U.S.C. §§ 922(g)(1) and 924(a)(2).
II
The district court initially sentenced Bare on April 8,
2013. It applied a base offense level of 22 after treating
Bare’s felony for resisting arrest as a crime of violence. See
U.S.S.G. § 2K2.1(a)(3)(B) (base offense level of 22 for
“unlawful receipt, possession, or transportation of firearms or
ammunition” if “the defendant committed any part of the
instant offense subsequent to sustaining one felony conviction
of . . . a crime of violence”). It also applied a 2-level
enhancement because the offense involved at least three
firearms. See id. § 2K2.1(b)(1)(A). At the time of Bare’s
initial sentencing, the United States Probation Office did not
recommend, and the district court did not therefore adopt, a
4-level enhancement for the use of a firearm in connection
with another felony offense. See id. § 2K2.1(b)(6)(B).
Bare’s total offense level (24), coupled with his criminal
history category (II), resulted in an advisory Guidelines range
of 57–71 months.
At sentencing, the district court explained Bare’s offense
was “perhaps one of the worst felon in possession cases I
have seen in my nine years as a judge of this court . . .
because of the length, the awareness of the wrongfulness, the
commercial possession of taking of firearms, [and] the
discharge of the firearm.” It sentenced Bare to 57 months
imprisonment. In addition, the district court imposed a
computer search condition of supervised release. It overruled
Bare’s objection to this condition, expressly finding a nexus
between Bare’s operation of a pawn business involving
8 UNITED STATES V. BARE
firearms and the ability to store records related to that
business on computers or other electronic devices: “I do see
a nexus here . . . because there was a commercial context to
what he was doing that goes directly to the offense in
possession.”
Bare appealed his conviction and sentence. United States
v. Bare, 583 F. App’x 721, 722 (9th Cir. 2014). We affirmed
his conviction, but vacated his sentence because the district
court erred when calculating his base offense level. Id. at
723–24. We held Bare had not previously been convicted of
a crime of violence, which “might well [have] affect[ed] the
district court’s sentencing decision.” Id. at 724; see also
United States v. Flores-Cordero, 723 F.3d 1085, 1088 (9th
Cir. 2013) (“[A]n Arizona conviction for resisting arrest
cannot be considered categorically a crime of violence under
the federal Sentencing Guidelines.”).
Bare’s resentencing took place on October 21, 2014.
Upon remand, Bare’s corrected base offense level was 20.
See U.S.S.G. § 2K2.1(a)(4). The district court once again
applied a 2-level enhancement because the offense involved
at least three firearms. See id. § 2K2.1(b)(1)(A). In addition,
it applied the 4-level enhancement for the use of a firearm in
connection with another felony offense—disorderly conduct
in violation of Arizona Revised Statutes § 13-2904(A)(6).
See id. § 2K2.1(b)(6)(B). Probation explained it was an error
to fail to include this enhancement in Bare’s original
Presentence Report. Bare’s resulting total offense level was
26, with an advisory Guidelines range of 70–87 months.
The district court incorporated its view that the
“comments in the first sentencing [we]re all still correct,” and
emphasized:
UNITED STATES V. BARE 9
[A]s I remarked the last time, I think this is
probably the most serious felon in possession
case that I have seen in my years on the Court,
most serious in terms of not just possession
but discharging the firearm in an environment
of uncontrolled anger with a history of
uncontrollable anger; a history of violence,
fortunately, violence that didn’t result in any
serious injury; but the history of prior
incarceration with a string of discipline
violations during the prior incarceration.
So this is a case that’s really the top end of the
chart in terms of the seriousness of the
offense, the need for the sentence to respect
the seriousness of the offense, to promote
respect for the law, to provide deterrence to
[Bare], is critically important for the safety of
the community . . . .
Recognizing Bare’s recent success and lack of disciplinary
infractions while in custody on the latest charges, the district
court sentenced him to 54 months imprisonment.
Finally, the district court reimposed the computer search
condition of supervised release: “You shall submit your
person, property, house, residence, vehicles, papers,
computers as defined in 18 U.S.C. § 1030(e)(1), other
electronic communications or data storage devices or media,
or office, to a search conducted by a probation officer. . . .
You shall warn any other occupants that the premises may be
subject to searches pursuant to this condition.” Bare objected
to the portion of this condition as it related to computers or
“data compilations,” but did not object to the other aspects of
10 UNITED STATES V. BARE
the search condition.3 The district court overruled Bare’s
objection, finding that “in light of the fact that Mr. Bare was
taking firearms in connection with a business activity to
pawn, it’s appropriate to search computers where typically
such records are often kept.”
III
“[W]e review the district court’s interpretation of the
Sentencing Guidelines de novo.” United States v.
Valenzuela, 495 F.3d 1127, 1130 (9th Cir. 2007) (quotation
omitted). “We review conditions of supervised release for
abuse of discretion.” United States v. Betts, 511 F.3d 872,
874 (9th Cir. 2007). “In applying this standard of review, ‘we
give considerable deference to a district court’s determination
of the appropriate supervised release conditions,’ recognizing
that ‘a district court has at its disposal all of the evidence, its
own impressions of a defendant, and wide latitude.’” United
States v. Stoterau, 524 F.3d 988, 1002 (9th Cir. 2008)
(quoting United States v. Weber, 451 F.3d 552, 557 (9th Cir.
2006)).
IV
A 4-level enhancement is appropriate when the defendant
“[u]sed or possessed any firearm or ammunition in
connection with another felony offense[.]” U.S.S.G.
§ 2K2.1(b)(6)(B). Such a “felony offense” “means any
Federal, state, or local offense . . . punishable by
imprisonment for a term exceeding one year, regardless of
3
During oral argument, Bare confirmed that he challenges the condition
only with respect to computers or electronic devices.
UNITED STATES V. BARE 11
whether a criminal charge was brought, or a conviction
obtained.” Id. § 2K2.1 cmt. 14(C).
Bare’s actions, if committed elsewhere in Arizona, would
qualify as felony disorderly conduct under Arizona Revised
Statutes § 13-2904(A)(6) for “recklessly handl[ing],
display[ing] or discharg[ing] a deadly or dangerous
instrument.” See Ariz. Rev. Stat. § 13-2904(B) (classifying
disorderly conduct under subsection (A)(6) as “a class 6
felony”). Because Bare, a non-Indian, discharged a firearm
over the head of an Indian while on the Navajo Reservation,
he is subject to punishment in Indian Country—by the United
States—which incorporates in the federal offense the
elements of Arizona’s disorderly conduct statute under the
ACA. See 18 U.S.C. §§ 13, 1152; United States v. Marcyes,
557 F.2d 1361, 1364 (9th Cir. 1977) (“[T]he ACA is a
general law of the United States made applicable to Indian
reservations by 18 U.S.C. [§] 1152.”); see also United States
v. Kaufman, 862 F.2d 236, 237–38 (9th Cir. 1988) (per
curiam) (finding the ACA appropriate to punish a person who
purposefully pointed a firearm at another person in violation
of an Oregon statute while “within a federal enclave”).
The district court properly considered what is otherwise
a felony violation of Arizona Revised Statutes § 13-
2904(A)(6), which supported its application of the
enhancement. See United States v. Turnipseed, 159 F.3d 383,
384, 386 (9th Cir. 1988) (upholding application of
enhancement where defendant fired a handgun in the
direction of several youths in violation of a Washington
assault statute). We therefore hold that the district court did
not err in adding to Bare’s base offense level a 4-level
enhancement under § 2K2.1(b)(6)(B) for firing a shot near
Begay during their altercation.
12 UNITED STATES V. BARE
V
“The principal statutory provision that constrains the
district court’s discretion to impose conditions of supervised
release is 18 U.S.C. § 3583(d).” Stoterau, 524 F.3d at 1002.
“[T]he conditions imposed are permissible only if they are
reasonably related to the goal of deterrence, protection of the
public, or rehabilitation of the offender.” United States v.
T.M., 330 F.3d 1235, 1240 (9th Cir. 2003) (citing 18 U.S.C.
§§ 3583(d)(1), 3553(a)). “The supervised release conditions
need not relate to the offense for which [the defendant] was
convicted as long as they satisfy any of the conditions set
forth [in § 3583(d)(1)].” Id.; see also United States v.
Blinkinsop, 606 F.3d 1110, 1119 (9th Cir. 2010) (“‘A
condition of supervised release does not have to be related to
the offense of conviction,’ because the sentencing judge is
statutorily required ‘to look forward in time to crimes that
may be committed in the future’ by the convicted defendant.”
(quoting United States v. Wise, 391 F.3d 1027, 1031 (9th Cir.
2004)).
A
While we have on occasion vacated conditions of
supervised release limiting or restricting the ability to use
computers and access the Internet, we have not taken such a
heavy hand with respect to general search conditions of
personal computers. Compare United States v. Barsumyan,
517 F.3d 1154, 1161 (9th Cir. 2008) (“[A] mere nexus
between the crime and a computer does not justify
proscribing the use of anything containing a circuit board or
microchips.”), with United States v. Morris, 485 F. App’x
213, 216 (9th Cir. 2012) (“Morris has cited no authority that
clearly supports her argument that a suspicionless computer
UNITED STATES V. BARE 13
search-and-seizure condition may not be imposed on a
defendant who only tangentially made use of a computer in
the course of her crime, nor authority that holds that the
district court’s computer search conditions are impermissibly
broad.”).
We hold that so long as a district court makes a factual
finding establishing some nexus between computer use and
one of the goals articulated in 18 U.S.C. § 3553(a)(2)(B),
(a)(2)(C), or (a)(2)(D)—which was amply supported by the
record here—it is not an abuse of discretion for a district
court to impose a condition of supervised release permitting
the search of a defendant’s personal computers. See United
States v. Terrigno, 838 F.2d 371, 374 (9th Cir. 1988)
(upholding probation condition with “a reasonable nexus with
the twin goals of probation, rehabilitation and protection of
the public”); see also United States v. Hinkson, 585 F.3d
1247, 1264 (9th Cir. 2009) (en banc) (explaining that when
reviewing a district court’s actions for abuse of discretion,
“we look to whether the district court’s findings of fact, and
its application of those findings of fact . . ., were illogical,
implausible, or without support in inferences that may be
drawn from facts in the record”). In articulating this rule, we
are guided by our prior decisions in United States v. Sales,
476 F.3d 732 (9th Cir. 2007), and United States v. Betts,
511 F.3d 872 (9th Cir. 2007). We held in Sales that a
condition permitting the search and seizure of any computer-
related device “used by the defendant” was overbroad
because it applied to computers used for work or personal
purposes, whether owned by the defendant or others.
476 F.3d at 734, 737. For that reason, we limit our holding to
personal computers or electronic devices over which a
defendant has control and where he has both the obligation
14 UNITED STATES V. BARE
and the ability to inform other users that the computers or
devices may be subject to search.
In Betts, we affirmed a condition for warrantless searches
“at any time” of the defendant’s “person and property,” where
“property” presumably included computers. See 511 F.3d at
876. Because “[p]eople on supervised release have not
completed their sentences, they are serving them,” we drew
a parallel between state parolees and federal felons who are
out on supervised release.4 Id. Therefore, in the wake of
Samson v. California, 547 U.S. 843 (2006)—which held that
“[i]mposing a reasonable suspicion requirement . . . would
give parolees greater opportunity to anticipate searches and
conceal criminality”—we concluded that “[w]e cannot
characterize the judge’s exercise of discretion as an abuse,
even though it is very intrusive.” Betts, 511 F.3d at 876.5
4
We reject Bare’s assertion of the Fourth Amendment protections
outlined in Riley v. California, 134 S. Ct. 2473, 2488–89 (2014). He does
not warrant the same level of protections as arrestees because—as a
convicted federal prisoner still serving a portion of his sentence—his
Fourth Amendment rights are diminished. See Hudson v. Palmer,
468 U.S. 517, 524 (1984) (“[W]hile persons imprisoned for crime enjoy
many protections of the Constitution, it is also clear that imprisonment
carries with it the circumscription or loss of many significant rights.
These constraints on inmates, and in some cases the complete withdrawal
of certain rights, are justified by the considerations underlying our penal
system.” (quotation and citations omitted)); Samson v. California,
547 U.S. 843, 853 (2006) (“[T]his Court has repeatedly acknowledged that
a State’s interests in reducing recidivism and thereby promoting
reintegration and positive citizenship among probationers and parolees
warrant privacy intrusions that would not otherwise be tolerated under the
Fourth Amendment.”).
5
“California law provide[d] that every prisoner eligible for release on
state parole ‘shall agree in writing to be subject to search or seizure . . . at
any time of the day or night, with or without a search warrant and with or
UNITED STATES V. BARE 15
Once a district court meets the nexus requirement outlined
above, then, under Betts, a general search provision of a
defendant’s computers or other electronic devices does not
amount to an abuse of discretion.
B
The district court made a factual finding that a nexus
existed here between Bare’s potential computer use while he
remains under supervised release and the need to deter his
future criminal conduct, i.e., repeating the possession and
pawning of prohibited firearms. We disturb the nexus finding
only if it is clearly erroneous. See Hinkson, 585 F.3d at 1259.
The district court’s nexus finding was not clearly erroneous
and, in fact, was well-supported by the facts of the case. As
articulated by the Government during Bare’s original
sentencing, evidence existed that Bare kept paper records of
his illicit firearms pawn business. Permitting a search of only
paper records—but not computers—might enable Bare to
evade discovery of recidivist activity by switching his records
into an electronic format. Allowing such a loophole to exist
would, as denounced in Samson, give Bare a “greater
opportunity to anticipate searches and conceal criminality.”
547 U.S. at 854.6 To illustrate, we will never know what
without cause.” Samson, 547 U.S. at 846 (quoting Cal. Penal Code
§ 3067(a) (2000)); see also Cal. Penal Code § 3067(b)(3) (2015)
(requiring notice to any inmate eligible for release or parole “that he or she
is subject to search or seizure . . . at any time of the day or night, with or
without a search warrant or with or without cause.”).
6
The dissent misconstrues our rationale. See Dissent at 19. The district
court did not look to whether the “defendant’s crime could be committed
with the help of a computer” or “hypothesi[ze] about how the crime might
have been committed.” Id. at 19. Instead, the district court properly
16 UNITED STATES V. BARE
incriminating evidence Bare destroyed while he kept arresting
federal officers at bay.
Although the dissent requires a direct nexus between the
offense conduct and the computer search condition, the law
does not.7 T.M., 330 F.3d at 1240 (“The supervised release
conditions need not relate to the offense for which [the
looked “forward in time to crimes that may be committed in the future,”
as 18 U.S.C. § 3553(a)(2)(C) requires. Wise, 391 F.3d at 1031. Under
the dissent’s rationale, the computer search condition was only appropriate
if Bare used a computer in the offense. But the district court was not
restricted to imposing conditions that would prevent “further crimes of the
defendant” that were identical to his offense. The standard for imposing
the computer search condition is clear: the condition must be “reasonably
related” to preventing and deterring further criminal conduct. 18 U.S.C.
§ 3583(d)(1). The district court met that standard here.
7
The dissent cites two cases from a California court of appeal to support
the position that a nexus is required: In re Roman P., No. A143468, 2015
WL 6604609, at *2–3 (Cal. Ct. App. Oct. 30, 2015) (unpublished and
noncitable under Cal. R. Ct. 8.1115(a)); and In re Erica R., 192 Cal. Rptr.
3d 919, 922–23 (Cal. Ct. App. 2015). But two other divisions of the same
California court of appeal have expressly rejected the reasoning of both of
those cases:
Nothing in . . . any other case of which we are aware,
requires a connection between a probationer’s past
conduct and the locations that may be searched to
uphold a search condition . . . . Given the ubiquity of
electronic devices, particularly cell phones, we cannot
say that an electronics search condition is unreasonable
simply because the record does not show that the
probationer necessarily has access to such devices or
has used them to engage in illegal activity.
In re Patrick F., No. A143586, 2015 WL 7009056, at *3 (Cal. Ct. App.
Nov. 12, 2015) (citing In re Ricardo P., 193 Cal. Rptr. 3d 883, 893 (Cal.
Ct. App. 2015) and expressly disagreeing with In re Erica R.).
UNITED STATES V. BARE 17
defendant] was convicted as long as they satisfy any of the
conditions set forth [in § 3583(d)(1)].”). The law only
requires some nexus between the computer search condition
and furthering “the goal of deterrence, protection of the
public, or rehabilitation of the offender.” Id.; see also United
States v. Manuel, 601 F. App’x 585, 585–86 (9th Cir. 2015)
(upholding a computer search condition—imposed due to
Department of Corrections records indicating gang
affiliations or involvement—for a defendant convicted of
being a felon in possession of ammunition); United States v.
Hayes, 283 F. App’x 589, 594 (9th Cir. 2008) (upholding a
computer monitoring condition—imposed due to evidence of
the use of text messaging to threaten and harass former
wives—for a defendant convicted of making a false statement
to acquire a firearm).
Here, the circumstances of Bare’s offense yield a
demonstrable nexus between both his offense and the need
for adequate deterrence. His conviction for being a felon in
possession of firearms arose directly out of his home-based
commercial pawn business. We are mindful that one of the
weapons Bare took in pawn was an AK47, with a 47-round
clip, a weapon existing for no other purpose than to
efficiently kill others. Because future records for such a
business might easily be kept on computers, the district court
did not abuse its discretion when imposing the electronic
search condition. No case in our Circuit dictates the opposite
conclusion.8 Those cases striking down computer-related
8
Our holding does not conflict with Sales. Although the dissent
believes that the Sales defendant, who used a computer, scanner, and
printer to counterfeit currency, “could have used the internet to commit his
counterfeiting crime and might do so the next time,” see Dissent at 20 this
court in Sales did not share that belief. In fact, we expressly found that
18 UNITED STATES V. BARE
conditions of supervised release involve different and much
broader conditions than the one at issue here. See, e.g.,
Barsumyan, 517 F.3d at 1160–62 (striking condition
prohibiting the defendant from “accessing or possessing any
computer or computer-related devices in any manner, or for
any purpose”); Sales, 476 F.3d at 736–37 (striking condition
requiring the defendant to “seek and obtain approval from his
probation officer before using any particular computer or
computer-related device”).
Even Bare himself acknowledges that some computer-
related search condition would be reasonable:
I haven’t meant to foreclose entirely a search
here. The challenge I presented . . . is not that
this Court should reverse and direct the
district court not to impose this condition at
all. My core contention has always been that
the judge didn’t make the right findings and
this Court should instruct him to do so.
We conclude that the district court’s nexus findings were
sufficient to properly support the computer search condition
imposed. There was no abuse of discretion in doing so.
AFFIRMED.
“the record suggests no such link between the internet and counterfeiting,”
when ruling that the condition restricting Sales’s computer and internet
use was overly broad. 476 F.3d at 736 n.2. In contrast, the district court
here found the nexus required for the computer search condition because
computers are “typically” where business records are “often kept.”
UNITED STATES V. BARE 19
KOZINSKI, Circuit Judge, dissenting in part:
Persons on supervised release may have diminished
expectations of privacy, but they have privacy rights
nonetheless. Moreover, Congress has instructed us to adopt
conditions of supervised release that impose “no greater
deprivation of liberty than is reasonably necessary” to achieve
the goals of supervised release. 18 U.S.C. § 3583(d)(2). The
majority today disregards this command by allowing
probation officers to search defendant’s computer at any time,
for any reason or no reason, even though defendant did not
use a computer to carry out his crime, and (so far as we
know) did not even own a computer when he committed the
offense.
The majority’s rationale, that defendant’s crime could be
committed with the help of a computer, is no limitation at all.
Pretty much any federal crime can be committed by using a
computer in some way—to maintain records, to case the
premises using Google Street View or to track down
accomplices, methods and supplies necessary for committing
the crime. If a hypothesis about how the crime might have
been committed is a sufficient justification for imposing a
supervised release condition, then any condition can be
justified by supposing that the crime could be committed in
a way that’s different from the method employed by the
defendant. I cannot subscribe to such a broad and amorphous
standard.
The Supreme Court recently reminded us of the massive
intrusion into personal privacy that occurs when police rifle
through the contents of a smartphone, which the Court
characterized as a “minicomputer[].” Riley v. California,
134 S. Ct. 2473, 2489 (2014). The Court criticized
20 UNITED STATES V. BARE
electronics searches for allowing police to reconstruct “[t]he
sum of an individual’s private life.” Id. The search of all of
defendant’s computers—desktops, laptops, smartphones—
would certainly do no less. Such an intrusion must be based
on a substantial justification, which is why none of our
published opinions approve an electronics search condition
where the crime itself doesn’t involve the use of a computer.
And after Riley, other courts have invalidated expansive
electronics search conditions that lack a nexus to the
defendant’s crime. See, e.g., In re Roman P., No. A143468,
2015 WL 6604609, at *2–3 (Cal. Ct. App. Oct. 30, 2015); In
re Erica R., 192 Cal. Rptr. 3d 919, 922–23 (Cal. Ct. App.
2015).
The majority cites two cases for the contrary proposition,
but this reliance is misplaced. Betts merely refers to searches
of the defendant’s “person and property,” which the majority
“presumes” includes computers. See United States v. Betts,
511 F.3d 872, 876 (9th Cir. 2007); Maj. Op. at 14–15. But
computers were not mentioned in Betts, so that case provides
no support for today’s ruling. And Sales cuts entirely against
the majority. There we vacated a supervised release
condition requiring the defendant to obtain approval from a
probation officer before accessing the web, because his crime
“in no way involved or relied upon the internet.” United
States v. Sales, 476 F.3d 732, 736 (9th Cir. 2007). Using the
rationale of today’s opinion, Sales would have come out the
other way because the defendant there could have used the
internet to commit his counterfeiting crime and might do so
next time. Betts and Sales are in conflict.
The majority also cites two unpublished cases to support
its decision. Maj. Op. at 17. But our rules clearly state that
unpublished dispositions aren’t authority. Ninth Cir. Rule 36-
UNITED STATES V. BARE 21
3(a). And for good reason: They generally aren’t worded
carefully enough to govern future cases, nor are they exposed
to the type of en banc scrutiny to which published opinions
are subjected. See Hart v. Massanari, 266 F.3d 1155,
1178–79 (9th Cir. 2001). In any event, the memdispos don’t
help the majority. In United States v. Manuel, the defendant
challenged his computer search condition because it was
imposed based on the incorrect assumption that he was a gang
member—not because he didn’t use electronics in committing
his crime. 601 F. App’x 585 (9th Cir. 2015). And the Hayes
defendant used a cell phone to send threatening messages, so
the electronic search condition was reasonably related to his
previous offenses. United States v. Hayes, 283 F. App’x 589
(9th Cir. 2008). The majority is grasping at straws.
Bare obtained firearms through a small-scale pawn
operation he ran out of his home on the Whippoorwill Navajo
reservation. So informal was his enterprise that FBI agents
didn’t find a single electronic device that was used in
connection with the business at his house. They discovered
only a paper ledger with names and figures. As there’s no
evidence linking Bare’s business to electronics, searching his
computers is an unjustifiable intrusion into his privacy and
that of his family. Because the majority’s new rule breaks
with our precedents and doesn’t advance the goals of
supervised release, I respectfully dissent from the portion of
the opinion approving this supervised release condition.