Samuel Luckey, et al v. Rachel Mitchell, 22-16556, No. 30 (9th Cir. Feb. 2, 2023) (2024)

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`RULE 26.1 CORPORATE DISCLOSURE STATEMENT
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` The Cato Institute is a nonprofit entity operating under § 501(c)(3) of the
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`Internal Revenue Code. Amicus is not a subsidiary or affiliate of any publicly owned
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`corporation and does not issue shares of stock. No publicly held corporation has a
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`direct financial interest in the outcome of this litigation due to amicus’s participation.
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`TABLE OF CONTENTS
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`TABLE OF AUTHORITIES ................................................................................... iii
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`INTEREST OF AMICUS CURIAE ............................................................................ 1
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`SUMMARY OF THE ARGUMENT ........................................................................ 2
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`ARGUMENT ............................................................................................................. 4
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`I. DEPRIVING DEFENDANTS OF THEIR RIGHT TO A PRELIMINARY
`HEARING SEVERELY UNDERMINES THE RIGHT TO A JURY TRIAL
`ITSELF. .............................................................................................................. 4
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`II. PROTECTING THE RIGHT TO A PRELIMINARY HEARING IS
`ESPECIALLY IMPORTANT IN LIGHT OF THE VANISHINGLY SMALL
`ROLE THAT JURY TRIALS PLAY IN OUR CRIMINAL JUSTICE
`SYSTEM. ........................................................................................................... 9
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`CONCLUSION ........................................................................................................14
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`CERTIFICATE OF COMPLIANCE .......................................................................15
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`CERTIFICATE OF SERVICE ................................................................................16
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`ii
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`Cases
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`TABLE OF AUTHORITIES
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`Barker v. Wingo, 407 U.S. 514 (1972) ....................................................................12
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`Blakely v. Washington, 542 U.S. 296 (2004) ............................................................. 7
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`Brady v. Maryland, 373 U.S. 83 (1963) ..............................................................2, 13
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`Duncan v. Louisiana, 391 U.S. 145 (1968) ............................................................... 5
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`Faretta v. California, 422 U.S. 806 (1975) ............................................................... 9
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`Florida v. Nixon, 543 U.S. 175 (2004) ...................................................................... 5
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`Jones v. United States, 526 U.S. 227 (1999) ............................................................. 6
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`Mansfield v. Williamson Cnty., 30 F.4th 276 (5th Cir. 2022) .................................13
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`North Carolina v. Alford, 400 U.S. 25 (1970) ........................................................... 7
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`Powers v. Ohio, 499 U.S. 400 (1991) ........................................................................ 7
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`Thompson v. Utah, 170 U.S. 343 (1898) ................................................................... 6
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`United States v. Haymond, 139. S. Ct. 2369 (2019) .................................................. 3
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`United States v. Kaczynski, 239 F.3d 1108 (9th Cir. 2001) ....................................... 7
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`Constitutional Provisions
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`U.S. CONST. art. III, § 2 .............................................................................................. 9
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`Statutes
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`Ariz. R. Crim. P. 15.8(a) ..........................................................................................13
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`Other Authorities
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`AKHIL REED AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION (1998)
` ................................................................................................................................ 7
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`ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA (Phillips Bradley ed. 1945) .... 7
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`Clark Neily, A Distant Mirror: American-Style Plea Bargaining through the Eyes of
`a Foreign Tribunal, 27 GEO. MASON L. REV. 719 (2020) ...................................11
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`CLAY CONRAD, JURY NULLIFICATION: THE EVOLUTION OF A DOCTRINE (2d ed. 2014)
` ................................................................................................................................ 5
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`George Fisher, Plea Bargaining’s Triumph, 109 YALE L.J. 857 (2000) ................... 9
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`J. STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES § 1779 ... 6
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`Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. (Nov. 20, 2014) .....10
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`iii
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`Lauryn P. Gouldin, Disentangling Flight Risk from Dangerousness, 2016 BYU L.
`REV. 837 (2016) ...................................................................................................12
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`Lysander Spooner, An Essay on the Trial by Jury (1852) ......................................... 5
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`Michael Nasser, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory
`Brady Evidence During Plea Bargaining, 81 FORDHAM L. REV. 3599 (2013) ...11
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`NAT’L ASSOC. OF CRIM. DEF. LAW., THE TRIAL PENALTY: THE SIXTH AMENDMENT
`RIGHT TO TRIAL ON THE VERGE OF EXTINCTION AND HOW TO SAVE IT (2018) ....11
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`Rachel A. Harmon, Why Arrest?, 115 MICH. L. REV. 307 (2016) ...........................12
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`Russel M. Gold, Paying for Pretrial Detention, 98 N.C. L. REV. 1255 (2020) ......12
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`Samuel R. Wiseman, Pretrial Detention and the Right to be Monitored, 123 YALE
`L.J. 1344 (2014) ...................................................................................................11
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`Suja A. Thomas, What Happened to the American Jury?, LITIGATION, Spring 2017
` ..............................................................................................................................10
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`THE FEDERALIST NO. 83 ............................................................................................. 6
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`The Truth About Trials, THE MARSHALL PROJECT: THE SYSTEM (last updated Nov.
`4, 2020), https://www.themarshallproject.org/2020/11/04/the-truth-about-trials
` ..............................................................................................................................10
`
`U.S. SENT’G COMM’N, 2021 ANNUAL REPORT AND SOURCEBOOK OF FEDERAL
`SENTENCING STATISTICS (2021) ...........................................................................10
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`Why Do Innocent People Plead Guilty To Crimes They Didn’t Commit?, THE
`INNOCENCE PROJECT (2018) .................................................................................10
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`WILLIAM R. KELLY & ROBERT PITMAN, CONFRONTING UNDERGROUND JUSTICE
`(2018) ...................................................................................................................11
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`Case: 22-16556, 02/02/2023, ID: 12645388, DktEntry: 30, Page 6 of 21
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`INTEREST OF AMICUS CURIAE1
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`The Cato Institute is a nonpartisan public policy research foundation founded
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`in 1977 and dedicated to advancing the principles of individual liberty, free markets,
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`and limited government. Cato’s Project on Criminal Justice was founded in 1999,
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`and focuses in particular on the scope of substantive criminal liability, the proper
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`and effective role of police in their communities, the protection of constitutional and
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`statutory safeguards for criminal suspects and defendants, citizen participation in the
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`criminal justice system, and accountability for law enforcement officers.
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`Cato’s interest in this case is ensuring that coercive plea-bargaining practices,
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`like those inherent in Maricopa County’s Retaliation Policy, do not violate the due
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`process rights of criminal defendants, especially when those due process rights are
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`necessary for ensuring that defendants can make informed decisions about whether
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`to exercise their constitutional right to a jury trial.
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`1 Fed. R. App. P. 29 Statement: No counsel for either party authored this brief in
`whole or in part. No one other than amicus and its members made monetary
`contributions to its preparation or submission. All parties have consented to the filing
`of this brief.
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`1
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`SUMMARY OF THE ARGUMENT
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`Both the U.S. Constitution and the Arizona State Constitution provide
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`extensive, detailed, and robust protections for the rights of criminal defendants at
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`every stage of criminal proceedings. The Sixth Amendment establishes the jury trial
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`as the cornerstone of criminal adjudication and lays out in specific detail the form
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`that such trials shall take. Article II, Section 30 of the Arizona Constitution gives
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`defendants the right to a preliminary hearing to ensure that the state has established
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`probable cause before proceeding with a criminal prosecution at all. And the Due
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`Process Clause of the Fourteenth Amendment protects state-created liberty interests,
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`like Arizona’s guarantee of the right to a preliminary hearing.
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`Maricopa County has enacted a coercive scheme designed to short-circuit all
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`of these constitutional protections. Under the County’s Retaliation Policy,
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`defendants generally receive only a single day to decide whether to forego a
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`preliminary hearing and accept a plea offer (thereby waiving their right to a jury trial
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`as well), with the explicit threat of a harsher subsequent offer if they insist on
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`exercising their right to a preliminary hearing. See Br. at 5–8. During this brief period
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`of deliberation, defendants are denied material information about their case—even
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`information the state would eventually be required to disclose under Brady v.
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`Maryland, 373 U.S. 83 (1963)—they do not meaningfully receive the assistance of
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`counsel (as their attorneys have only twenty-four hours to investigate the case and
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`2
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`advise their clients), and they are typically subject to the extreme coercive pressures
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`of pretrial incarceration. See Br. at 6–10.
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`As Plaintiffs-Appellants explain in detail in their Opening Brief, the
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`Retaliation Policy is unconstitutional because it violates their due process rights by
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`depriving them of a state-created liberty interest. In particular, the Arizona
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`Constitution guarantees the right to a preliminary hearing, which serves the vital
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`purposes of checking prosecutorial overreach and ensuring that no defendant is
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`prosecuted without probable cause, Br. at 15–23; the state constitutional right to a
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`preliminary is unambiguously a state-created liberty interest for the purposes of the
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`Fourteenth Amendment’s Due Process Clause, id. at 24–30; and the Retaliation
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`Policy deprives defendants of this liberty interest by coercing them into waiving their
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`right to a preliminary hearing, id. at 30–41. Amicus will not retread these arguments
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`here.
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`Instead, amicus writes separately to elaborate on how the Retaliation Policy
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`is an especially aggressive example of coercive plea bargaining, a practice that has
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`eviscerated the right to a jury trial itself. The right to a jury trial has been described
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`as “the heart and lungs” of liberty “without which the body must die.” United States
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`v. Haymond, 139. S. Ct. 2369, 2375 (2019) (internal citations omitted). Yet today,
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`jury trials have been all but replaced by plea bargaining as the baseline for criminal
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`adjudication, and there is ample reason to doubt whether the bulk of these pleas are
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`3
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`truly voluntary. By depriving defendants of their right to a preliminary hearing, the
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`Retaliation Policy all but ensures that defendants will be incapable of making an
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`informed, voluntary choice about whether to accept a guilty plea or to put the state
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`to its burden. The due process violation in this case is therefore especially pernicious
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`because it amplifies and exacerbates all the traditional problems with coercive plea
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`bargaining that have already pushed the jury trial to the brink of extinction.
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`ARGUMENT
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`DEPRIVING DEFENDANTS OF THEIR RIGHT TO A
`PRELIMINARY HEARING SEVERELY UNDERMINES THE RIGHT
`TO A JURY TRIAL ITSELF.
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`I.
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`The doctrinal question at issue in this appeal is whether the Retaliation Policy
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`violates the Fourteenth Amendment by virtue of depriving Plaintiffs-Appellants of
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`a state-created liberty interest, not whether the Retaliation Policy violates the Sixth
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`Amendment directly. Regardless of whether the District Court erred in dismissing
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`the explicit Sixth Amendment claims in the First Amended Complaint, the
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`Retaliation Policy still violates due process by coercing defendants into abandoning
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`their right to a preliminary hearing. As Plaintiffs-Appellants explain in greater detail,
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`the District Court improperly conflated these Sixth and Fourteenth Amendment
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`claims and gave only cursory attention to the state-created liberty interest argument.
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`Br. at 41–45.
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`4
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`Nevertheless, the Court should remain cognizant of the effect that the
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`Retaliation Policy has on the right to a jury trial, precisely because the due-process
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`violation at issue results in the entry of a plea. A guilty plea, of course, is “an event
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`of signal significance” that necessarily results in a defendant abandoning their right
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`to a jury trial entirely. Florida v. Nixon, 543 U.S. 175, 187 (2004). ). Thus, anything
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`that threatens the voluntariness of guilty pleas equally threatens the jury trial itself—
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`not because denying the right to a preliminary hearing is itself a Sixth Amendment
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`violation, but because such hearings are intended, in part, to ensure that defendants
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`can make a meaningful choice about whether to exercise their right to a trial.
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`In that regard, it would be difficult to overstate the centrality of the jury trial
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`to the Anglo-American legal tradition. The tradition of an independent citizen jury
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`standing as a check against state power pre-dates the signing of Magna Carta, and
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`likely even the Norman Conquest. See CLAY CONRAD, JURY NULLIFICATION: THE
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`EVOLUTION OF A DOCTRINE 13 (2d ed. 2014); see also Lysander Spooner, An Essay
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`on the Trial by Jury 51–85 (1852) (discussing this tradition both before and after
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`Magna Carta). In other words, jury independence is as ancient and storied as the
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`Anglo-Saxon legal tradition itself.
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`In its modern form, the right to a jury trial developed as a “check or control”
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`on executive power—an essential “barrier” between “the liberties of the people and
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`the prerogative of the crown.” Duncan v. Louisiana, 391 U.S. 145, 151, 156 (1968)
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`5
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`(trial by jury is an “inestimable safeguard against the corrupt or overzealous
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`prosecutor and against the compliant, biased, or eccentric judge”); see also Jones v.
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`United States, 526 U.S. 227, 246 (1999) (quoting Blackstone’s characterization of
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`“trial by jury as ‘the grand bulwark’ of English liberties”). “Those who emigrated to
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`this country from England brought with them this great privilege ‘as their birthright
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`and inheritance, as a part of that admirable common law which had fenced around
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`and interposed barriers on every side against the approaches of arbitrary power.’”
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`Thompson v. Utah, 170 U.S. 343, 349–50 (1898) (quoting J. STORY, COMMENTARIES
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`ON THE CONSTITUTION OF THE UNITED STATES § 1779). Alexander Hamilton
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`observed that “friends and adversaries of the plan of the [constitutional] convention,
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`if they agree[d] in nothing else, concur[red] at least in the value they set upon the
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`trial by jury; or if there [was] any difference between them it consist[ed] in this: the
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`former regard[ed] it as a valuable safeguard to liberty; the latter represent[ed] it as
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`the very palladium of free government.” THE FEDERALIST NO. 83.
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`Ultimately, the jury trial was understood not just to be a fair means of deciding
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`guilt or innocence, but also as an independent institution designed to give the
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`community a central role in the administration of criminal justice. “Just as suffrage
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`ensures the people’s ultimate control in the legislative and executive branches,” the
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`“jury trial is meant to ensure [the people’s] control in the judiciary,” and constitutes
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`a “fundamental reservation of power in our constitutional structure.” Blakely v.
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`6
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`Washington, 542 U.S. 296, 306 (2004). By providing an “opportunity for ordinary
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`citizens to participate in the administration of justice,” the jury trial “preserves the
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`democratic element of the law,” Powers v. Ohio, 499 U.S. 400, 406-07 (1991), and
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`“places the real direction of society in the hands of the governed,” AKHIL REED
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`AMAR, THE BILL OF RIGHTS: CREATION AND RECONSTRUCTION 88 (1998) (quoting
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`ALEXIS DE TOCQUEVILLE, DEMOCRACY IN AMERICA 293–94 (Phillips Bradley ed.
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`1945)).
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`Thus, by forcing defendants to plead guilty before they have had any
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`meaningful opportunity to investigate the government’s case against them, Maricopa
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`County’s Retaliation Policy undermines a central pillar of criminal justice in our
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`constitutional order. Regardless of whether modern plea-bargaining practices
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`generally accord with this historical understanding of the jury trial, it is axiomatic
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`that a plea is only constitutional when it “‘represents a voluntary and intelligent
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`choice among the alternative courses of action open to the defendant.’” United States
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`v. Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001) (quoting North Carolina v. Alford,
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`400 U.S. 25, 31 (1970)). But the conditions under which Maricopa County requires
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`defendants to decide whether to accept a plea preclude any such decision from being
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`“voluntary and intelligent.”
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`As Plaintiffs-Appellants explain in detail, most defendants are compelled to
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`make this life-altering decision in an extraordinarily short period of time without
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`7
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`adequate information. Br. at 35–39. Defendants typically do not receive their initial
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`plea offer, including the Retaliation Policy’s threat, until the day before the status
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`conference at which they must decide whether to waive their right to a preliminary
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`hearing. (ER-68 ¶¶ 51–52.) Their defense counsel therefore has less than 24 hours
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`to investigate the case and advise their client. They must also do so on the basis of
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`incredibly limited information, as Maricopa County prosecutors typically refuse to
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`turn over any discovery besides the police report at this stage of the proceedings.
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`(ER-71 ¶ 57.) The County refuses even to permit access to policy body-camera
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`footage already in the state’s possession. (ER-74–75 ¶¶ 68–69.) And it is practically
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`impossible for defense counsel to acquire sufficient information in a single day to
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`enable their clients to make an informed decision on whether to accept a plea—
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`especially for public defenders already burdened with high caseloads. See Br. at 38–
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`39, (ER-71 ¶ 59.)
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`By coercing defendants into accepting a plea without the time or information
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`necessary to make an informed choice, the Retaliation Policy therefore functions as
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`end-run around not just the due-process protections of the preliminary hearing, but
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`also around the very institution that was intended to be the cornerstone of criminal
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`adjudication under our Constitution.
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`8
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`II.
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`PROTECTING THE RIGHT TO A PRELIMINARY HEARING IS
`ESPECIALLY IMPORTANT IN LIGHT OF THE VANISHINGLY
`SMALL ROLE THAT JURY TRIALS PLAY IN OUR CRIMINAL
`JUSTICE SYSTEM.
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`The jury trial is foundational to the notion of American criminal justice, and
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`it is discussed more extensively in the Constitution than nearly any other subject.
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`Article III states, in mandatory, structural language, that “[t]he Trial of all Crimes
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`. . . shall be by Jury; and such Trial shall be held in the State where the said Crimes
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`shall have been committed.” U.S. CONST. art. III, § 2 (emphases added). And the
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`Sixth Amendment not only guarantees the right to a jury trial generally but lays out
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`in specific detail the form such a trial shall take. See Faretta v. California, 422 U.S.
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`806, 818 (1975) (“The rights to notice, confrontation, and compulsory process, when
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`taken together, guarantee that a criminal charge may be answered in a manner now
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`considered fundamental to the fair administration of American justice . . . .”).
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` Yet despite their intended centrality as the bedrock of our criminal justice
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`system, jury trials are being pushed to the brink of extinction. The proliferation of
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`plea bargaining, which was completely unknown to the Founders, has transformed
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`our robust “system of trials” into a “system of pleas.” Lafler v. Cooper, 566 U.S.
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`156, 170 (2012); see also George Fisher, Plea Bargaining’s Triumph, 109 YALE L.J.
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`857, 859 (2000) (observing that plea bargaining “has swept across the penal
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`landscape and driven our vanquished jury into small pockets of resistance”). As of
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`9
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`2021, 98.3% of all convictions in federal court were obtained through guilty pleas,2
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`and the states are not far behind at around 94%.3
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`These statistics are especially concerning because there is ample reason to
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`believe that many criminal defendants—regardless of factual guilt—are effectively
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`coerced into taking pleas, simply because the risk of going to trial is too great. See
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`Jed S. Rakoff, Why Innocent People Plead Guilty, N.Y. REV. (Nov. 20, 2014). The
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`data reflect this conclusion. Out of 362 DNA-based exonerations since 1989, nearly
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`11% “involved people who pleaded guilty to serious crimes they didn’t commit.”
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`Why Do Innocent People Plead Guilty To Crimes They Didn’t Commit?, THE
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`INNOCENCE PROJECT (2018).4 Likewise, “according to the National Registry of
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`Exonerations, 18 percent of known exonerees pleaded guilty.” Id. Yet even when
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`faced with an innocent defendant, “[i]nstead of vacating their convictions on the
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`basis of innocence, the prosecution offers the wrongly convicted a deal—plead
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`guilty.” Id.
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`2 U.S. SENT’G COMM’N, 2021 ANNUAL REPORT AND SOURCEBOOK OF FEDERAL
`SENTENCING STATISTICS 56 (2021), available at https://tinyurl.com/yzv5m53h.
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`3 See The Truth About Trials, THE MARSHALL PROJECT: THE SYSTEM (last updated
`Nov. 4, 2020), https://www.themarshallproject.org/2020/11/04/the-truth-about-
`trials; see also Suja A. Thomas, What Happened to the American Jury?, LITIGATION,
`Spring 2017, at 25 (“[J]uries today decide only 1-4 percent of criminal cases filed in
`federal and state court.”).
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`4 Available at https://guiltypleaproblem.org/#about.
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`10
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`The government is at a distinct advantage during the plea-bargaining process.
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`Prosecutors “possess a wide array of levers that they can—and routinely do—bring
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`to bear on defendants to persuade them to waive their right to trial and simply plead
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`guilty.” Clark Neily, A Distant Mirror: American-Style Plea Bargaining through the
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`Eyes of a Foreign Tribunal, 27 GEO. MASON L. REV. 719, 730 (2020). These levers
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`include: threatening increased penalties for defendants hoping to go to trial
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`(commonly known as the “trial penalty”),5 threatening to add charges in an effort to
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`increase a potential sentence,6 the use of pretrial detention,7 withholding exculpatory
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`evidence during plea negotiations,8 threatening to use uncharged or acquitted
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`conduct to enhance a potential sentence,9 and threatening to prosecute family
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`members.10 Id. Two such levers—the coercive power of pretrial detention and
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`asymmetric information between prosecutors and defendants—are especially
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`5 NAT’L ASSOC. OF CRIM. DEF. LAW., THE TRIAL PENALTY: THE SIXTH AMENDMENT
`RIGHT TO TRIAL ON THE VERGE OF EXTINCTION AND HOW TO SAVE IT 5 (2018),
`https://bit.ly/38IF8KG.
`
`6 Id. at 50.
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`7 Samuel R. Wiseman, Pretrial Detention and the Right to be Monitored, 123 YALE
`L.J. 1344, 1351–56 (2014).
`
`8 Michael Nasser, Plea Bargaining in the Dark: The Duty to Disclose Exculpatory
`Brady Evidence During Plea Bargaining, 81 FORDHAM L. REV. 3599, 3613 (2013).
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`9 WILLIAM R. KELLY & ROBERT PITMAN, CONFRONTING UNDERGROUND JUSTICE 75
`(2018).
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`10 Id.
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`11
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`relevant to this case, in light of the conditions under which Maricopa County requires
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`defendants to decide whether to waive their right to a preliminary hearing.
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`Defendants facing pretrial incarceration face immense pressure to plead
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`guilty, particularly when holding out for acquittal may mean spending weeks,
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`months, or years behind bars. See Barker v. Wingo, 407 U.S. 514, 532 (1972) (“The
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`time spent in jail awaiting trial has a detrimental impact on the individual.”). And it
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`is no secret that prosecutors take advantage of pretrial detention as a means of
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`obtaining guilty pleas. See Russel M. Gold, Paying for Pretrial Detention, 98 N.C.
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`L. REV. 1255, 1269 (2020) (“Detaining a defendant pretrial affords the government
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`a massive advantage in securing guilty pleas.”). Those incarcerated prior to trial face
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`economic and societal challenges, including loss of employment, disruption to
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`family life, and pressure from public accusation of a crime. Rachel A. Harmon, Why
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`Arrest?, 115 MICH. L. REV. 307, 313–20 (2016). Moreover, defendants detained
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`before trial “are more likely to be convicted and to serve longer sentences than
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`defendants with comparable risk levels who are released before trial.” Lauryn P.
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`Gouldin, Disentangling Flight Risk from Dangerousness, 2016 BYU L. REV. 837,
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`860 (2016). Therefore, it is unsurprising that “pretrial detainees—even those who
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`claim innocence—feel heightened pressure to plead guilty.” Id.
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`
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`Defendants are also routinely forced to decide whether to enter a guilty plea
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`without access to material and even exculpatory evidence. As a threshold matter,
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`12
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`even though Brady v. Marland, 373 U.S. 83, 87 (1963), instructs that “the
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`suppression by the prosecution of evidence favorable to an accused upon request
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`violates due process,” federal and state courts are split on whether and how this rule
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`applies during plea negotiations. See Mansfield v. Williamson Cnty., 30 F.4th 276,
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`282 & n.9 (5th Cir. 2022) (Higginbotham, J., concurring) (discussing the need for
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`the Supreme Court to resolve the circuit split on this issue). And even where state
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`law requires prosecutors to make discovery available at the time of a plea offer,
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`sufficiently aggressive plea-bargaining practices can circumvent such protections.
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`Indeed, that is exactly what the Retaliation Policy achieves in this case—even
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`though the Arizona Rules of Criminal Procedure require prosecutors to provide
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`discovery before making plea offers in Superior Court, Ariz. R. Crim. P. 15.8(a),
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`Maricopa County coerces defendants into accepting pleas before their cases ever
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`reach Superior Court. See Br. at 36–37.
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`There is no panacea for the jury’s diminishing role in our criminal justice
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`system; it is a deep, structural problem that far exceeds the bounds of any one case
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`or doctrine. But the least we can do to avoid exacerbating the issue is to ensure that
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`defendants are not deprived of their right to a preliminary hearing, and thereby
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`precluded from making a knowing and voluntary choice about whether to accept a
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`plea at all.
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`Case: 22-16556, 02/02/2023, ID: 12645388, DktEntry: 30, Page 19 of 21
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`CONCLUSION
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`For the foregoing reasons, as well as those presented by Plaintiffs-Appellants,
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`the Court should reverse the District Court’s judgment and remand for further
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`proceedings.
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` Respectfully submitted,
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`DATED: February 2, 2023.
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`/s/ Jay R. Schweikert
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`Clark M. Neily III
`Jay R. Schweikert
` Counsel of Record
`CATO INSTITUTE
`1000 Mass. Ave., N.W.
`Washington, DC 20001
`(202) 216-1461
`jschweikert@cato.org
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`Counsel for the Cato Institute
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`Case: 22-16556, 02/02/2023, ID: 12645388, DktEntry: 30, Page 20 of 21
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`CERTIFICATE OF COMPLIANCE
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` Pursuant to Federal Rule of Appellate Procedure 32 and 9th Circuit Rule 29-2, I
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`certify that:
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`1. This brief complies with the type-volume limitation of 9th Circuit Rule 29-2
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`because it contains 3,069 words, excluding the parts exempted by Fed. R. App. P.
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`32(f).
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`2. This brief complies with the typeface requirements of Fed. R. App. P. 32(a)(5)
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`and the type-style requirements of Fed. R. App. P. 32(a)(6) because it has been
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`prepared in a proportionally spaced typeface in 14-point Times New Roman font.
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`/s/ Jay R. Schweikert
`February 2, 2023
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`Case: 22-16556, 02/02/2023, ID: 12645388, DktEntry: 30, Page 21 of 21
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`CERTIFICATE OF SERVICE
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`I hereby certify that I electronically filed the foregoing with the Clerk of
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`Court, who will enter it into the CM/ECF system, which will send a notification of
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`such filing to the appropriate counsel.
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`/s/ Jay R. Schweikert
`February 2, 2023
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