author: TORRUELLA, Circuit Judge.

text:
    UNITED STATES of America, Appellee, v. John FLEURY, Defendant, Appellant.
    No. 15-1869
    United States Court of Appeals, First Circuit.
    December 2, 2016

      Christine DeMaso, Assistant Federal Public Defender, Federal Public Defender Office, was on brief, for appellant.
    Mark T. Quinlivan, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for appellee.
    Before TORRUELLA, LIPEZ, and BARRON, Circuit Judges.
   TORRUELLA, Circuit Judge.

John Fleury appeals the United States District Court for the District of Massachusetts’s denial of his motion to suppress the fruits of a search conducted at his residence: a pistol and ammunition. Fleury was charged with one count of being a felon in possession of a firearm and ammunition, in violation of 18 U.S.C. § 922(g)(1). After the district court denied his motion to suppress, Fleury pleaded guilty, reserving his right to challenge the denial of his motion to suppress. Fleury argues that the affidavit submitted by Special Agent Eric Kotchian of the Bureau of Alcohol, Tobacco, and Firearms (the “ATF”) supporting an application for a warrant to search his house was misleading because (1) the affidavit overstated a confidential informant’s (the “Cl”) record of providing information to the police; (2) it misrepresented the Cl’s drug use; and (3) it did not include information suggesting that Fleury might move the gun from his residence.

Although aspects of the affidavit are troubling, because the affidavit contained information from a recording that supported probable cause without relying on information provided by the Cl, we affirm.

I. BACKGROUND

A. Factual Background

On February 4, 2014, the Peabody Police Department responded to the report of a home invasion in Peabody, Massachusetts. Agent Kotchian also responded to the scene. The residents imported that the intruders had stolen a Ruger 9mm-caliber handgun and a diamond ring, and the Peabody Police Department requested Agent Kotchian’s assistance with the investiga^ tion of the home invasion.

During the investigation, the Peabody Police Department obtained surveillance footage showing a male individual believed to be responsible for the home invasion, and officers distributed images from the footage to local media outlets. In March of 2014, the Peabody Police Department received information from an anonymous tipster identifying the male in the images as the CL After further investigation, the Peabody Police Department obtained a search warrant for the Cl’s residence, and during the .search, the Cl agreed to work as an informant, telling officers, including Agent Kotchian, that he was aware of a murder-for-hire plot and .knew a drug dealer that he could set up.

On April 8, 2014, Agent Kotchian and a Peabody detective met with the CL At the meeting, the Cl admitted that he participated in the home invasion along with three other people: Joseph LaFratta, Richard Kenney, and Fleury. The Cl provided officers with information about each of the other three participants. Following the interview, officers independently corroborated information about Fleury, including contact information, his place of residence, the fact that Fleury had recently been arrested, and the circumstances surrounding his arrest. The Cl also identified a photo of Fleury.

Officers also corroborated information that the Cl provided about the Peabody home invasion, including that a handgun had been stolen, that the Peabody home had a keypad on the front door and several locks on the rear door, and the location of the jacket the CI had worn during the home invasion, which Agent Kotchian subsequently found in a search; Finally, the Cl gave Agent Kotchian information about a potential murder-for-hire plot, and Agent Kotchian was able to confirm some of the information.

In addition to providing information, the Cl wore a recording device at two meetings with other participants in the home invasion. One of those meetings, on April 21, 2014, included Fleury and LaFratta. During that meeting/ Fleury argued on the phone with a person Fleury identified as his girlfriend, who lived with him. After one call, Fleury stated: “The fucking gun’s in the house brother, but there’s no clip, I took the clip out last time and left it there_[I]t’s kinda hidden, ... last time I left, I left on the bike.... So I took the clip out, I just took that.To which LaFratta replied: “Why do you even have that there? Get that out of there.... ” Following Fleury’s arguments with his girlfriend, the Cl warned Fleury to “go away for a couple of days” or to “stay at my house,” and Fleury discussed staying at his mother’s place, and he moved a painting and his bike from his residence.

The April 21, 2014 recording also recorded. the Cl discussing drugs. In it, the Cl stated that he had “been struggling to get clean,” had “used three times in the past three weeks,” and that he was “going to do this bump.” In addition, the Cl had told Agent Kotchian on multiple occasions that he was “using Suboxone that he was obtaining from people on the street.”

On May 6, 2014, the Cl reported that he had met with Fleury on April 25, 2014, and that Fleury had removed a pistol from a closet in Fleury’s residence and put it into a shoulder holster that Fleury was wearing.

On May 9, 2014, Agent Kotchian applied for a search warrant for Fleury’s house, seeking “firearms, ammunition,- documents and other evidence.” Agent Kotchian submitted an affidavit in support of the application. In the affidavit, Agent Kotchian made the following averments concerning the Cl’s reliability:

The Cl has provided accurate, truthful, and reliable information to law enforcement personnel in the past. Information provided by the Cl has led to the seizure of evidence. The Cl has provided information during this investigation, which has be'en corroborated by law enforcement officers via further investigation and the use of investigative techniques, such as the use of electronic surveillance, while the Cl has met with identified suspects, including FLEURY.

Agent Kotchian also made averments concerning the Cl’s drug use and criminal history:

The Cl has a criminal history that includes convictions for violations of the law that include, but are not limited to, the following: Breaking & Entering in the Nighttime, Open and Gross Lewdness, Larceny Over $250.00 and Assault & Battery with a Dangerous Weapon. The Cl told me that he/she has both used and sold illegal drugs in the past.

The affidavit then summarized (1) information concerning the Cl’s April 25, 2014 meeting at Fleury’s residence, in which Fleury removed a pistol from his closet and put it into “a shoulder holster worn by Fleury,” and (2) evidence obtained from the Cl’s recording of his April 21, 2014 meeting with Fleury and LaFratta, including quoting the following excerpt:

FLEURY: “Oh, shit.”
Cl: “What?”
FLEURY: “The fucking gun is in the house. But there’s no clip. I took the clip out last time and left it (the gun) there. Ah, she might .,. (Unintelligible)[.] My ' prints are all over it. Oh....”
OTHER IND: “Would' she be smart enough to pick it up with a towel?
FLEURY: “No. She can’t pick it up. It’s kind of hidden, but.... See, the last time I left, I left on the bike. When you were supposed ... So, I took the clip out and just took that (the clip). That way she can’t do nothing with it. You know what I mean? And I just ... I left it (the clip) at my buddy’s.

Finally, Agent Kotchian averred, “based on [his] training and experience as an ATF Special Agent,” that persons who have had a firearm in their residence over the course of several weeks are likely to still have the firearm in their residence after two weeks.

Agent Kotchian’s affidavit did not quote LaFratta’s recorded admonishment to Fleury on April 21, 2014: “Why do you even have that [gun] there? Get that out of there....” Nor did it explain that the Cl did not report his April 25, 2015 meeting with Fleury until May 6, 2014. It also did not include information about the Cl’s drug use during the investigation or some of his prior convictions, including identity theft and credit-card fraud convictions in 2004. Finally, the affidavit did not state that the Cl first had contact with officers just one month before Agent Kotchian drafted the application.

B. Procedural History

On May 9, 2014, a magistrate judge authorized a warrant to search Fleury’s residence in Lynn, Massachusetts based on Agent Kotchiaris affidavit. Officers executed the search warrant on May 12, 2014. They discovered a Walther Model PPK/S .380 caliber pistol, a shoulder holster, and other potential evidence. Fleury was indicted on June 19, 2014 of being a felon in possession of a firearm, in violation of 18 U.S.C. § 922(g)(1).

Fleury filed, a motion to suppress the fruits of the search and for a hearing pursuant to Franks v. Delaware, 438 U.S. 154, 98 S.Ct. 2674, 57 L.Ed.2d 667 (1978). The district court denied the motion in a written opinion entered February 11, 2015. On March 19, 2015, after discovery related to the affidavit, Fleury renewed his motion to suppress. The district court held a three-day Franks hearing, and on April 27, 2015, the district court orally denied Fleu-ry’s renewed motion to suppress. Following the district court’s denial of his motion to suppress, Fleury entered a conditional guilty plea, reserving his right to appeal the denial of his motion to' suppress. The district court sentenced Fleury to fifty-five months’ imprisonment.

II. ANALYSIS

We review probable cause determinations de novo. United States v. McLellan, 792 F.3d 200, 208 (1st Cir. 2015). In conducting this review, “[o]ur task, like that of the magistrate judge and district court, is simply to make a practical, commonsense decision whether, given all the circumstances, there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Id. (ellipsis and internal quotation marks omitted) (quoting United States v. Brunette, 256 F.3d 14, 16 (1st Cir. 2001)). We review the district court’s antecedent factual findings for clear error. United States v. Lanza-Vázquez, 799 F.3d 134, 141 (1st Cir. 2015).

“[A]n affidavit supporting a search warrant is presumptively valid.” McLellan, 792 F.3d at 208 (quoting United States v. Gifford, 727 F.3d 92, 98 (1st Cir. 2013)). To rebut the presumption, Fleury must show by a preponderance of the evidence that (1) Agent Kotchian made a false statement or omission “knowingly and intentionally or with reckless disregard for the truth,” in his affidavit, id. and (2) the affidavit, would be insufficient to establish probable cause without any false statements) and with any omitted statement(s). United States v. Rigaud, 684 F.3d 169, 173 (1st Cir. 2012). There is probable cause if the affidavit, as reformed if necessary, shows “a fair probability that contraband or evidence of a crime will be found in a particular place.” United States v. Tanguay, 787 F.3d 44, 50 (1st Cir. 2015).

Although literally true, Agent Kotchiaris affidavit was misleading because he omitted material information. He used stock phrases, such as “provided ... information to law enforcement personnel in the past” that “led to the seizure of evidence,” that imply the Cl had a long relationship with law enforcement that had led to evidence against others in multiple cases. In fact, Agent Kotchian was aware that the Cl had no history as an informant prior to his work with Agent Kotchian following the home invasion. The Cl’s actions in the one month following the home invasion may have convinced Agent Kotchian that the Cl could provide reliable information, but Agent Kotchian needed to accurately describe the Cl’s actions so that the magistrate could form his own opinion. See Illinois v. Gates, 462 U.S. 213, 240, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983) (“The essential protection of the warrant requirement of the Fourth Amendment ... is in requiring that the usual inferences which reasonable men draw from evidence be drawn by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.” (brackets oipitted)).

Agent Kotchian also averred that the Cl had “used ... illegal drugs in ■ the past.” But Agent Kotchian had strong evidence, from the April 21, 2014 recording, that the Cl used drugs during that meeting and was struggling to stay off drugs, and he knew that the Cl was buying a prescription drug “on the street.” Again, Agent Kotchian’s affidavit did not disclose information that the magistrate needed to effectively judge the Cl’s credibility behind a stock phrase that is literally true, but misleading when given a “common-sense” interpretation. See United States v. Jewell, 60 F.3d 20, 22 (1st Cir. 1995) (“The affidavit is to be interpreted in a common-sense rather than a hypothetical or hyperteehnical manner.”).

We need not decide, however, whether Agent Kotchian acted intentionally or recklessly in omitting information from the affidavit. Fleury’s statement in the April 21, 2014 recording that he had a gun at his residence was sufficient to establish probable cause, at least in conjunction with Agent Kotchian’s averment that persons who recently had-, a firearm in their residence over the course of-several weeks are likely to still have the firearm in them residence after two weeks. Any value added by information that the Cl provided, including the Cl’s account of his April 25, 2014 meeting with Fleury, was merely cumulative. Fleury’s complaints—with one exception discussed below—go to the Cl’s credibility, but the April 21, 2014 recording’s probative value did not rely on the Cl’s credibility.

Fleury argues that the affidavit also omitted information tending to show that Fleury had an incentive to move the gun from his residence. Fleury points to the troubled relationship with his girlfriend, which is evident throughout the April 21, 2014 recording, and argues that the record shows that Fleury was concerned that she would report the gun to the police. Fleury also refers to LaFratta’s statement that Fleury should move the gun, the Cl’s suggestion that Fleury should stay with the Cl, Fleury’s discussion about staying with his mother, and the fact that Fleury moved a painting and his bicycle to his mother’s house. Simply put, Fleury argues that, by May 9, 2014, when Agent Kotchian sought the search warrant, the information recorded at the April 21, 2014 meeting was stale.

We disagree. Fleury did discuss staying with either his mother or the Cl, but neither indicated that Fleury could or should bring the gun. LaFratta told Fleury to move the gun, but Fleury himself never indicated that he had or would move the gun, either in this part of the recording or in any other.

Even taking into account the ' information showing that Fleury was fighting with his girlfriend and might stay somewhere other than their joint residence, there was “sound reason to believe” that a search of Fleury’s residence would result in evidence that he possessed a gun. See McLellan, 792 F.3d at 209. “Probability is the touchstone” of probable cause. Id. It exists where “a man of reasonable caution” would believe “that an offense has been or is being committed and that evidence bearing on that offense will be found in the place to be searched.” United States v. Clark, 685 F.3d 72, 75 (1st Cir. 2012) (quoting Safford Unified Sch. Dist. No. 1 v. Redding, 557 U.S. 364, 370, 129 S.Ct. 2633, 174 L.Ed.2d 354 (2009)). Here, Fleury’s recorded statements that he had a gun at his residence established probable cause.

III. CONCLUSION

For the foregoing reasons, the district court’s denial of Fleury’s motion to suppress is affirmed.

Affirmed.

      . Suboxone is a prescription medication that is used to block the effect of withdrawal from opiate addiction.


source: Caselaw Access Project

author: DYK, Circuit Judge.

license: Public Domain

text:
    LAW OFFICES OF DAVID EFRON, P.C., Appellant, v. Madeleine CANDELARIO, Appellee.
    No. 16-1010
    United States Court of Appeals, First Circuit.
    December 2, 2016

      Charles A, Cuprill-Hernández on brief for appellant.
    Michelle Pirallo-Di Cristina on brief for appellee.
    Before HOWARD, TORRUELLA, and DYK, Circuit Judges.

       Of the Federal Circuit, sitting by designation.

   DYK, Circuit Judge.

The Law Offices of David Efron,. P.C. ("Efron Firm”) appeals from an order of the United States District Court for the District of Puerto Rico directing that “the moneys for legal fees to Mr. Efron, which we ordered retained by our Clerk, be disbursed to the Court of First Instance, Superior Part of San Juan.” ECF No. 55. We conclude that Puerto Rico courts cannot garnish funds deposited in a federal district court’s registry, and that the district court cannot transfer registry funds without transferring the concomitant case. Because-the appellee, Madeleine Candelar-io, has no right to intervene in the federal action, we reverse and direct that the funds be paid pursuant to the provisions originally governing the funds’ disposition.

I.

David Efron (“Efron”) and Madeleine Candelario were involved in two proceedings before the Superior Court of Puerto Rico: a divorce proceeding that concluded in 2000, and a pending marital property division proceeding. David Efron is the sole owner of the Efron Firm. In the divorce proceeding,. the Superior Court of Puerto Rico ordered payment of $5,473,627.98 plus interest from Efron to Candelario. Candelario alleges that Efron has refused to pay .as ordered by the Superior Court, which has forced her to resort ■to garnishing funds owned by Efron.

The present controversy concerns funds allegedly owned by Efron and deposited in the federal district court registry. In the case of Juan Carlos Torres Rivera v. Hospital Menonita Caguas, Inc., No. 15-1231 (D.P.R. Aug. 31, 2015), in the district court, the Efron Firm represented the plaintiffs and secured a settlement for its clients. In accordance with the settlement agreement, the defendants deposited the Efron Firm’s attorney’s fees with the district court clerk. Meanwhile, in the divorce proceeding in Puerto Rico Superior Court, the court issued an order garnishing amounts owed to Efron (not specific to these funds) to satisfy the Superior Court judgment.

On September 14, 2015, Candelario served the district court clerk with a certified translation of the Superior Courtis garnishment order and requested that the district court transfer the amounts deposited in the district court registry pursuant to the Rivera settlement. On December 8, 2015, the district court ordered that “the moneys for legal fees to Mr. Efron, which we ordered retained by our Clerk, be disbursed to the Court of First Instance, Superior Part of San Juan, ... for that court to decide to who, when, and how to disburse those moneys [because the] Supe-nor Court is in the best position to consider all the equities, rights, and obligations arising from its judgment and orders for execution of judgment.” EOF No. 55. Efron appealed. The district court order is a final order, see Alstom Caribe, Inc. v. Geo. P. Reintjes Co., 484 F.3d 106, 113 (1st Cir. 2007), over which we have jurisdiction under 28 U.S.C. § 1291. We stayed the district court transfer order pending appeal.

II.

The first issue is whether the Superior Court of Puerto Rico could garnish funds deposited in the registry of the federal district court. Supreme Court authority establishes that it cannot: funds in federal court registries are protected under the doctrine of custodia legis from garnishment or attachment by a state court.

In The Lottawanna, 87 U.S. (20 Wall.) 201, 22 L.Ed. 259 (1873), owners of a steamship were sued in a federal district court sitting in admiralty for failure to pay wages. The owners sold the steamship in order to pay the claims, and deposited the sale proceeds in the federal court registry for disbursement to the wage claimants. Id. at 211. After the deposit occurred, additional parties attempted to garnish the funds based on state court judgments relating to expenses incurred by the ship owners. Id. at 214. The district court ordered the funds in the registry to be paid over to these state court judgment claimants. Id. at 215-16. On appeal, the Supreme Court held that the federal court registry “fund, from its very nature, is not subject to attachment either by the process of foreign attachment or of garnishment, as it is held in trust by the court to be delivered to whom it may belong.” Id. at 224. The Court thus ordered the return of the incorrectly disbursed funds from the state court judgment claimants. Id. at 225-26. This doctrine of custodia legis is “based on the desirability of avoiding a clash between judicial jurisdictions which would result from any attempt to use the process of one to seize assets in the control of another judicial authority ... [especially] where the judicial departments belong to different sovereignties.” In re Quakertown Shopping Ctr., Inc., 366 F.2d 95, 97 (3d Cir. 1966).

The custodia legis principle has been reaffirmed in subsequent cases. In Osborn v. United States, 91 U.S. 474, 23 L.Ed. 388 (1875), the Supreme Court held that the “power of the [district] court over moneys belonging to its registry continues until they are distributed pursuant to final decrees in the cases in which the moneys are paid.” Id. at 479 (emphasis added). And Motlow v. Missouri ex rel. Koeln, 295 U.S. 97, 55 S.Ct. 661, 79 L.Ed. 1327 (1935), noted that a state would be “without jurisdiction to enforce [its] liens ... [if] the property was in custodia legis ... [because of] interference with the custody of the federal court.” Id. at 99-100, 55 S.Ct. 661.

While this circuit has not had occasion to address the question of whether state courts can garnish funds deposited in a federal court registry, other circuits have followed Lottawanna to reach the same result. In Bucher v. Vance, 36 F.2d 774 (7th Cir. 1929), the Seventh Circuit, citing Lottawanna, held that the “fund, in the registry of the District Court, and under its control, could not be subjected to seizure on behalf of’ a state court judgment. Id. at 776. In White v. FDIC, 19 F.3d 249 (5th Cir. 1994), the Fifth Circuit, also citing Lottawanna, held that

[a]ny attempt to attach funds deposited in the registry of a federal district court is subject to the doctrine of custodia legis. Under the doctrine of custodia leg-is, funds deposited in the registries of federal courts may not be attached except by order of the judge or judges of said courts.

Id. at 253 n.12 (internal citations and quotation marks omitted). In Garrick v. Weaver, 888 F.2d 687 (10th Cir. 1989), the Tenth Circuit, quoting Lottawanna, held that because “fund[s] in registry [are] not subject to attachment either by foreign attachment or garnishment and no money deposited ... shall be withdrawn except by the order of the judge[, the appellant] must obtain court approval before she can access the funds in the court registry.” Id. at 695 (internal quotation marks omitted). In Landau v. Vallen, 895 F.2d 888 (2d Cir. 1990), the Second Circuit cited Lottawanna to explain that custodia legis serves to bar garnishment that would “prevent the court from disposing of the funds in accordance with the purpose for which they were deposited.” Id. at 893-94. And in United States v. Van Cauwenberghe, 934 F.2d 1048 (9th Cir. 1991), the Ninth Circuit cited Lottawanna for the proposition that “[i]t has long been asserted that property and funds in the registries of federal courts are not, as a general rule, subject to writs of attachment or garnishment.” Id. at 1062. Like the other circuits, we agree that Lottawanna prevents a state court, such as the Puerto Rico Superior Court, from garnishing funds in a federal court registry.

III.

We next turn to the issue of whether the federal district court had authority to transfer the funds to the Superior Court. Case law from this circuit bans such transfers unless accompanied by the concomitant transfer of the case.

In Alstom Caribe, Inc. v. Geo. P. Reintjes Co., 484 F.3d 106, 110 (1st Cir. 2007), Alstom Inc. sued Reintjes Co. and St. Paul Co. in the District of Puerto Rico for breach' of contract. The parties settled, and Reintjes and St. Paul disputed whether Reintjes owed monies to St. Paul in connection with the settlement expenses. Thereafter, St. Paul sued Reintjes in the Western District of Missouri to recover these amounts. Meanwhile, in the Puerto Rico district court, Reintjes had asserted counterclaims against Alstom. These were also settled, and Alstom deposited the funds to be paid to Reintjes with the Puer-to Rico district court registry pursuant to the settlement. Id. at 110-11. The district court of Puerto Rico transferred these settlement funds deposited in its registry to the Western District of Missouri for it to “determine what to do with the funds.” Id. at 115.

On appeal, the Alstom court noted that “[t]he most glaring, defect in the order is the transmittal of the deposited funds to the Western District of Missouri without a concomitant transfer of any case or cause of action.” Id. at 114. “[T]here is no statute, rule, or legal precedent that authorizes a court to effect a non-consensual transfer of [court-deposited] funds to a different court without a concomitant transfer of the entire case (or, at least, some cause of action). Because the monetary transfer here was unaccompanied by a shifting of either the case or a cause of action within it, that transfer was legally insupportable.” Id. at 115. Here too, the district court improperly ordered precisely such a “naked transfer” of the Efron Firm’s funds in its registry without the accompanying transfer of any of the claims. See id. at 114.

IV.

We finally consider the question of further proceedings. The Alstom court ultimately remanded the case and “directed] the Puerto Rico district court to consider ... the question[ ] of intervention.” Id. at 116. No such remand is appropriate here because Candelario never sought to intervene and has no right to intervene. .

Rule 24(b)(1) provides that “[o]n timely motion, the court may permit, anyone to intervene who ... has a claim or defense that shares with the main action a common question of law or fact.” Whether federal courts have ancillary jurisdiction over intervenor claims “will depend on whether the claim of the would-be interve-nor is. so related to the original action that it may properly be regarded as ancillary to it.” 7C Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure § 1917, at 586 (3d ed. 2007) (emphasis added). This circuit has found that ancillary jurisdiction exists only when the issues “are so inextricably entangled with one another that full justice cannot be done in [the] original suit without adjudication of the matters raised” in the ancillary claim. Walmac Co. v. Isaacs, 220 F.2d 108, 114 (1st Cir. 1955).

Here, Candelario concedes that she has no right .to intervene to assert a right to the funds in the federal registry, She states that she “could not seek intervention as of right because she had no interest in the underlying case, and [could not seek] ... permissive intervention ... because the underlying case was over.” Ap-pellee Br. At 8-9. But even if she had made a request to intervene, it is clear that Candelario’s claim does not share with the underlying Rivera litigation any “common question of law or fact.” Moreover, all of the questions of law or fact in the Rivera litigation have already been settled. Can-delario’s claim is a post-judgment claim unrelated to the original dispute. There is no right to intervene.

Y.

We conclude that the Superior Court of Puerto Rico cannot garnish funds deposited in the registry of a federal district court, that the district court cannot transfer registry funds without transferring the concomitant case, and that Candelario has no- right to intervene to assert a claim to the funds. We reverse and remand with directions to pay the deposited funds pursuant to the provisions originally governing the funds’ disposition.

REVERSED AND REMANDED. Costs to appellant.

      . The parties dispute whether Efron, the individual, can be treated as owning funds belonging to the Efron Firm. For the purposes bf this opinion, we treat the funds in the district court registry as belonging to Efron, the individual, without deciding the question of their ownership. ,.


author: JOSÉ A. CABRANES, Circuit Judge:

text:
    CONSTELLATION BRANDS, U.S. OPERATIONS, INC., DBA Woodbridge Winery, Petitioner-Cross-Respondent, v. NATIONAL LABOR RELATIONS BOARD, Respondent-Cross-Petitioner, Teamsters Local Union 601, Intervenor.
    Nos. 15-2442-ag, 15-4106-ag August Term 2016
    United States Court of Appeals, Second Circuit.
    Argued: August 24, 2016
    Decided: November 21, 2016

      Shay DvoRetzky (David Raimer, Willis J. Goldsmith, on the brief) Jones Day, Washington, DC, for Petitioner-Cross-Respondent.
    Greg P. Lauro, Attorney (Jennifer Abruzzo, Deputy General Counsel; John H. Ferguson, Associate General Counsel; Linda Dreeben, Deputy Associate Genei'al Counsel; Julie B. Broido, Supervisory Attorney, on the brief), for Richard F. Griffin, Jr., General Counsel, National Labor Relations Board, Washington, DC, for Respondent-Cross-Petitioner.
    Matthew J. Ginsburg, AFL-CIO, Washington, DC (James B. Coppess, AFL-CIO, Washington, DC; Robert Bonsall, Beeson, Tayer & Bodine, Sacramento, CA, on the brief), for Intervenor.
    Before: WALKER, CABRANES, and LOHIER, Circuit Judges.
   JOSÉ A. CABRANES, Circuit Judge:

This case presents two questions. The. first is whether the framewobk for evaluating proposed bargaining units set forth in Specialty Healthcare & Rehabilitation Center of Mobile, 357 N.L.R.B. 934 (2011), is unlawful. Under this framework, the National Labor Relations Board (the “Board”) uses a two-step analysis to determine whether a -union’s proposed bargaining unit consists of employees who share a “community of interests” and does not arbitrarily exclude other employees. Several sister circuits recently approved this standard, but we have yet to opine on this question. The second question is whether the Board properly applied the Specialty Healthcare framework in its order at issue in this case.

We hold the Specialty Healthcare framework to be valid, as our sister circuits have, and to be consistent with this Court’s precedent. We conclude, however, that the Board did not properly apply the Specialty Healthcare framework in its decision and order against Constellation Brands, U.S. Operations, Inc., d/b/a Wood-bridge Winery (“Constellation”). In approving the petitioned-for collective bargaining unit, the Board did not analyze at step one of the Specialty Healthcare framework whether the excluded employees had meaningfully distinct interests from members of the petitioned-for unit in the context of collective bargaining that outweigh similarities with unit members.

Accordingly, we GRANT the petition for review, DENY the Board’s cross-petition for enforcement, and REMAND the cause to the Board for further proceedings consistent with the record of this matter and this opinion.

BACKGROUND

Constellation owns and operates Wood-bridge Winery in California, which employs about 100 managers and 200 production and maintenance employees. Its employees are divided into various departments. This case concerns the cellar operations department, which is organized into two subgroups: “outsider cellar” with 46 employees and “barrel” with 18 employees. The parties dispute whether the “outside cellar” employees form a group that is sufficiently distinct from the “barrel” employees (as well as from Constellation’s other employees) that they may be treated separately for collective bargaining purposes under Section 9 of the National Labor Relations Act (“NLRA”).

The certification of a bargaining unit falls largely to the Board’s Regional Directors (“RDs”), who are appointed by the General Counsel and approved by the Board, and to hearing officers in the regional offices, who report to the RDs. Parties seeking to determine whether a particular labor organization has majority-support in a workplace submit a petition for an election to the Board’s regional office. Where the parties do not agree on an appropriate bargaining unit, a hearing officer will conduct a representation hearing to “determine the unit appropriate for the purposes of collective bargaining, to investigate and provide for hearings, and determine whether a question of representation exists, and to direct an election or take a secret ballot ... and certify the results thereof.” Based on the hearing officer’s report, the RD will decide on the petition and, if warranted, direct an election and prescribe its procedures. Although parties have the right to appeal the RD’s decisión to a three-member panel of the Board, the Board’s review is discretionary and granted only in limited circumstance. Following the Board’s review, elections are held and the RD may certify the results.

. On September 2, 2014, the Teamsters Local Union 601 (the “Union”) filed a petition seeking to represent Constellation’s outside cellar employees as a bargaining unit. ■ Constellation objected, arguing that an appropriate unit should encompass all production and maintenance employees or, at a minimum, all cellar operations employees. Following a hearing, the RD decided in favor of the Union and directed that an election be held. In determining that the Union’s proposed bargaining unit of outside cellar employees was appropriate, the RD applied the Specialty Healthcare standard. On February 26, 2016, a three-member panel of the Board (Chairman Pearce, Member Hirozawa, and Member McFerran) denied Constellation’s request to review the RD’s decision, stating that Constellation had “raise[d] no substantial issues warranting review.” Special App. 4.

In the Board-ordered election, the outside cellar employees voted 31-13 to unionize and the RD certified the Union as the collective-bargaining representative of those employees. Following the usual procedure for contesting the validity of a union election, Constellation refused to bargain with the Union, which then filed an unfair-labor-practice charge. On July 29, 2015, a three-member Board panel granted the General Counsel’s motion for summary judgment and concluded that Constellation had violated the NLRA by refusing to bargain. Constellation subsequently petitioned for review of that decision, and the Board filed a cross-petition for enforcement.

JURISDICTION

While both parties agree that we have jurisdiction, we nonetheless consider the issue independently. The Board had jurisdiction over the original petition under 29 U.S.C. § 160(a)-(c), which empowers the Board to prevent unfair labor practices. Since Constellation is a New York corporation and- transacts business within this Circuit, we have jurisdiction over the petition for review and the cross-petition for enforcement under 29 U.S.C. § 160(f).

DISCUSSION

A. The Legality of the Specialty Healthcare Framework

The threshold question presented is whether we, along with six of our sister circuits, should also adopt the Specialty Healthcare framework. “[W]e review the Board’s legal conclusions to ensure that they have a reasonable basis in law.”

When considering a petition for a proposed bargaining unit, an RD has discretion to approve any appropriate unit, not just “the single most appropriate unit.” To guide its discretion, the RD has traditionally asked whether the members of the proposed unit share a “community of interests distinct from their interests as employees of the whole institution.” In Specialty Healthcare, the Board clarified this traditional approach by introducing a new, two-step analysis. “[I]n step one, the Board [ie., the RD] performs a community-of-interest analysis to determine whether the proposed unit is appropriate; if the unit is found appropriate, in step two [the party opposing certification] must demonstrate that the excluded employees it wishes to include share an ‘overwhelming community of interest’ with the included employees.”

While the RD’s discretion in determining the appropriateness of a bargaining unit is broad, it is not unlimited. Section 9(c) of the NLRA explicitly states that “[i]n determining whether a unit is appropriate ... the extent to which the employees have organized shall not be controlling.” The Board has long disfavored fractured units that may arbitrarily exclude certain groups of employees or could invite “gerrymandering” of interests among employees. Today, it is well established under Board precedent that “the Board does not approve fractured units, i.e., combinations of employees that are too narrow in scope or that have no rational basis.”

Certain interested groups argue that the Specialty Healthcare test essentially creates a presumption in favor of “micro” unions, causing the undue proliferation of bargaining units that make it difficult for employers to settle labor disputes and that arbitrarily exclude certain employees. In addition to the increased costs to employers of administering multiple contracts and benefit plans or reconciling conflicting demands from separate units, “micro” unions may also, the interested groups argue, diminish the rights of employees. These groups argue that the proliferation of units can allow one bargaining unit to disrupt the operations of an enterprise with unique demands not shared by other employees. “Micro” unions can also make it more difficult for employees to access new opportunities across units and may diminish the overall power of labor by creating units so small that they lack influence. Outside groups also echo Constellation’s objections that the Specialty Healthcare framework is a departure from decades of Board cases and inconsistent with the NLRA.

In the present case, Constellation asserts two' objections to the Specialty Healthcare test. First, it argues that this test impermissibly gives controlling weight to the extent to which émployees have already been organized, thereby' departing from past precedent of the Board and contravening the statutory language of the NLRA. Under the prior framework, Constellation argues, the RD had to determine whether the petitioned-for unit had interests “sufficiently distinct from” those of excluded employees as part of the “community of interest” analysis. Under Specialty Healthcare, in contrast, that determination of “sufficiently distinct interests” is postponed until step two, at which point the employer must show that excluded employees shared an “overwhelming community of interest” with the presumptively appropriate petitioned-for group. This heightened showing, Constellation argues, makes it nearly impossible for an employer to resist unions’ efforts to gerrymander bargaining units.

This concern is misplaced. Step one of Specialty Healthcare expressly requires the RD to evaluate several factors relevant to “whether the interests of the group sought were sufficiently distinct from those of other employees to warrant the establishment of .a separate unit.” For instance, the Board must consider “[wjhether the employees are organized into a separate department; have distinct skills and training; have distinct job functions and perform distinct work ... ; are functionally integrated with the Employer’s other employees; ... have distinct terms and conditions of employment; and are separately supervised.” Accordingly, it seems to us that Specialty Healthcare does not significantly redefine the showing required of a party seeking Board approval in establishing a bargaining unit. Nor does it contravene Section 9(c) of the NLRA by giving union organizers an inappropriate degree of control.

Constellation’s second argument against adoption of the rule of Specialty Healthcare is that the Board failed to provide a reasoned explanation for the new standard. This argument is also unpersuasive. Step one of Specialty Healthcare adopts verbatim the “community of interest” test on which the Board has long relied, Step two is a novel formulation called the “overwhelming community of interest”, test, but its substance is consistent with earlier Board precedents that imposed a heightened burden on a party who urges the Board to add employees to a unit that has otherwise been deemed appropriate, Moreover, the phrase “overwhelming community of interest” was taken from, a decision of the United States Court of Appeals for the District of Columbia Circuit, which itself purported to summarize relevant Board precedents. One might question the desirability of the Board’s approach. Yet it seems implausible to claim that a Board decision, announced in a 14-page opinion (exclusive of the dissent) that borrows heavily from Board and appellate precedent, is invalid because it failed to explain itself.

In sum, Constellation has failed to meet its burden of showing that the Specialty Healthcare framework is inconsistent with the NLRA or meaningfully departs from the Board’s past precedents. ■

B. Did the Board Correctly Apply Specialty Healthcare?

We now turn to the application of the Specialty Healthcare framework in this case. In reviewing the Board’s decision of unit appropriateness, we are mindful that our task is not to substitute our judgment for that of the Board. The Board is empowered to determine whether a unit is appropriate, for the purposes of collective bargaining and “select from those possible arrangements in reaching its unit determination.” Although the Board’s determination that a bargaining unit is appropriate “will stand unless-arbitrary and unreasonable,” we conclude that the RD misapplied the Specialty Healthcare framework at step one.

1. . Step One: “Community of Interest”

Constellation argues that the Specialty Healthcare standard improperly rubber stamps a union’s organizing efforts by presumptively approving the petitioned-for unit and creating too high a burden for the objecting party. We rejected that argument above precisely because Specialty Healthcare indeed requires the Board to consider, at step one, whether members of the proposed unit have an interest that is “separate and distinct” from all other employees. But merely reciting or repeating the standard cannot substitute for the analysis that Specialty Healthcare demands.

The RD (whose decision the Board declined to review) did not make the step-one determination required by Specialty Healthcare. Although he appropriately recited the community of interest standard, and declared that “employees in the petitioned-for unit share distinct characteristics,” Special App. 34, the RD did not explain why those employees had interests “sufficiently distinct from those of other employees to warrant the establishment of a separate unit.” Rather, the RD based his step-one determination on his finding “that the employees in that unit are a readily identifiable group, such that there is a rational basis for grouping them together in a bargaining unit.” Special App. 32. Reciting the legal framework does not substitute for analysis of differences between unit-members and other employees, as required by Specialty Healthcare. Indeed, as one of our sister circuits has stated, the very purpose of step one is “to guard against arbitrary exclusions” that have no purchase in the context of collective bargaining.

To be sure, the RD made a number of factual findings that tend to show that outside cellar employees had interests distinct from other employees. But he never explained the weight or relevance of those findings. For instance, the RD did not explain why some factual findings, which seemed to indicate the presence of distinct interests, e.g., “physically separate locations” or “separate front-line [and] immediate supervisors,” should have outweighed other findings of similarities, e.g., similar “job functions and duties,” evidence of “interchange” and “working] together,” and “identical skills and training requirements.” Special App. 44 n.20. To the extent that the RD did provide such explanations, it did so only at step two, ie., only to rebut a heightened showing that the excluded employees share an “overwhelming community of interest” with the presumptively appropriate petitioned-for unit. This misapplication of Specialty Healthcare requires us to deny the Board’s petition for enforcement.

Our sister circuits have accepted the Specialty Healthcare framework based on the understanding that it requires the Board to ensure, at step one, that employees are not inappropriately “excluded [from a bargaining unit] on the basis of meager differences.” To properly apply this framework, the Board must analyze at step one the facts presented to: (a) identify shared interests among members of the petitioned-for unit, and (b) explain why excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members. Merely recording similarities or differences between employees does not substitute for an explanation of how and why these collective-bargaining inter-ests are relevant and support .the conclusion. Explaining why the excluded employees have distinct interests in the context of collective bargaining is necessary to avoid arbitrary lines of demarcation and to avoid making step one of thé Specialty Healthcare framework, a mere rubber stamp.

While the RD has discretion to approve of “an appropriate unit, not the most appropriate unit,” he may exercise that discretion only after finding, upon analysis, that a petitioner has met its “prima facie” burden under the Specialty Healthcare framework. The RD failed to do so here. Nor did the Board exercise its power of review to ensure that the new framework was being appropriately applied. Without this critical first step of the Specialty Healthcare framework, the burden would be exclusively on the employer to prove the absence of distinctions. Such a burden is inconsistent with the NLRA and the Board’s past precedent.

2. Step Two: “Overwhelming Community of Interests”

Constellation argues that it should also prevail at step two of the Specialty Healthcare framework, ' known as the “overwhelming community of interests” test, which requires that Constellation show “that there is no legitimate basis upon which to exclude” barrel employees from that unit. We need not reach this question. Since the Board failed to perform the requisite analysis at step one, its decision and order dated .July 29,- 2015 against Constellation cannot stand.

CONCLUSION
To summarize, we hold as follows:
(1) The Board’s framework set forth in Specialty Healthcare for determining a bargaining unit’s appropriateness is consistent with the NLRA and the Board’s past precedent. Constellation failed to show that the Specialty Healthcare framework essentially creates a presumption in favor of “micro” unions by inappropriately placing the burden on the opposing party to prove the absence of distinction—which, if true, would have been a departure from past precedent and inconsistent with the NLRA.
(2) Adopting the Specialty Healthcare framework, we conclude that the Board misapplied step one of that framework. It failed to require that the proponent of a proposed bargaining unit meet its “prima facie” burden of showing why the excluded employees had distinct interests from employees of the petitioned-for unit in the context of collective bargaining, that is, (a) identifying shared interests among employees of the petitioned-for unit and (b) explaining why excluded employees have meaningfully distinct interests in the context of collective bargaining that outweigh similarities with unit members.

Accordingly, we GRANT the petition for review, DENY the Board’s cross-petition for enforcement, and REMAND the cause to the Board for further proceedings consistent with the record of this matter and this opinion.

        . See Kindred Nursing Ctrs. E., LLC v. NLRB, 727 F.3d 552 (6th Cir. 2013) (enforcing the original Specialty Healthcare case); accord FedEx Freight, Inc. v. NLRB, 839 F.3d 636 (7th Cir.2016); NLRB v. FedEx Freight, Inc., 832 F.3d 432 (3d Cir. 2016); Nestle Dreyer's Ice Cream Co. v. NLRB, 821 F.3d 489 (4th Cir. 2016) (rejecting challenge under the National Labor Relations Act and the Administrative Procedure Act); Macy’s, Inc. v. NLRB, 824 F.3d 557 (5th Cir. 2016); FedEx Freight, Inc. v. NLRB, 816 F.3d 515 (8th Cir. 2016).

      . 29 U.S.C, § 159 (laying out the procedures by which the Board resolves a question of representation and directs an election).

      . See id. § 153(b) ("The Board is .., authorized to delegate to its regional directors its powers ... to determine the unit appropriate for the purpose of collective bargaining....”); 29 C.F.R. § 102.64 (2015) (describing the conduct of hearings before hearing officers); id. § 102.67 (concerning proceedings before RDs).
      While substantial power has been delegated to the RDs, the Board's General Counsel, a Presidential appointee whose nomination is subject to the advice and consent of the Senate, retains the ultimate authority with respect to "the investigation of charges and issuance of complaints'’ under the NLRA. See 29U.S.C. § 153(d).

      . See id. § 159(c) (requiring a petition be filed to seek Board approval of a proposed bargaining unit).

      . Id. § 153(b).

      . See 29 C.F.R. § 102.67(d) (2015) ("The Board will grant a request for review only where compelling reasons exist therefor.... [Rjeview may be granted only upon one or more of the following grounds; (1) That a substantial question of law or policy is raised because of: (i) [t]he absence of; or (ii) [a] departure from, officially reported Board precedent; (2) That the regional director’s decision on a substantial factual issue is clearly erroneous on the record and such error preju-dicially affects the rights of a party. (3) That the conduct of any hearing or any ruling made in connection with the proceeding has resulted in prejudicial error. (4) That there are compelling reasons for reconsideration of ■ an important Board rule or policy.”).

      .The well-settled practice for challenging the appropriateness of a bargaining unit is refusing to bargain with the proposed unit and then defending against an unfair labor practice charge on the ground that the unit is inappropriate. See, e.g., NLRB v. Ky. River Cmty. Care, Inc., 532 U.S. 706, 709, 121 S.Ct. 1861, 149 L.Ed.2d 939 (2001) ("Because direct judicial review of representation determinations is unavailable, ... the respondent sought indirect review by refusing to bargain with the union, thereby inducing the General Counsel of the Board to file an unfair labor practice complaint under §§ 8(a)(1) and 8(a)(5) [of the NLRA].” (citation omitted)).

      . See Constellation Brands, 362 N.L.R.B. No. 151 (2015).

      . See, e.g., Taylor v. Rogich, 781 F.3d 647, 648 n.2 (2d Cir. 2015).

      . 29 U.S.C. § 160(a)-(c) provides, in relevant part: "The Board is empowered, as hereinafter provided, to prevent any person from engaging in any unfair labor practice (listed in section 158 of this title) affecting commerce. ... If upon the preponderance of the testimony taken the Board shall be of the opinion that any person named in the complaint has engaged in or is engaging in any such unfair labor practice, then the Board shall state its findings of fact and shall issue and cause to be served on such person an order requiring such person to cease and. desist from such unfair labor practice, and to take such affirmative action including reinstatement of employees with or without back pay, as will effectuate• the policies of. this subchapter_”

      . 29 U.S.C. § 160(f) provides: "Any person aggrieved by a final order of the Board granting or denying in whole or in part the relief sought may obtain a review of such order in any United States court of appeals in the circuit wherein the unfair labor practice in question was alleged to have been engaged in or wherein such person resides or transacts business .., by filing in such a court a written petition praying that the order of the Board be modified or set aside."; see also Boire v. Greyhound Corp., 376 U.S. 473, 476-79, 84 S.Ct. 894, 11 L.Ed.2d 849 (1964).
      In addition, 29 U.S.C. § 159(d) stipulates that the record and findings made in the underlying representation proceeding is "part of the record before this Court, It provides: "Whenever an order of the Board ... is based in whole or in part upon facts certified following an investigation pursuant to subsection (c) of this section and there is a petition for the enforcement or review of such order, such certification and the record of such investigation shall be included in the transcript of the entire record required to be filed under subsection (e) or (f) of section 160 of this title, and thereupon the decree of the court enforcing, modifying, or setting aside in whole or in part the order of the Board shall be made and entered upon the pleadings, testimony, and proceedings set forth in such transcript.”

      . See ante.

      . NLRB v. Special Touch Home Care Servs., Inc., 566 F.3d 292, 296-97 (2d Cir. 2009) (quotation marks omitted).

      . Am. Hosp. Ass'n v. NLRB, 499 U.S. 606, 610, 111 S.Ct. 1539, 113 L.Ed.2d 675 (1991). This discretion is derived from 29 U.S.C. § 159(b) that states, in relevant part: "The Board shall decide in each case whether, in order to assure to employees the fullest freedom in exercising the rights guaranteed by this subchapter, the unit appropriate for the purposes of collective bargaining....” Id.

      . Staten Island Univ. Hosp. v. NLRB, 24 F.3d 450, 454 (2d Cir. 1994).

      . Nestle Dreyer’s, 821 F.3d at 496 (emphasis omitted) (quoting Specialty Healthcare, 357 N.L.R.B. at 944).

      . 29 U.S.C. § 159(c)(5).

      .' Francis Biddle, an architect of the NLRA, the second Chairman of the National Labor Board (the predecessor of the Board), and later, Attorney General of the United States, was a vocal opponent of fractured units during the Senate committee hearings prior to the passage of the NLRA: “If the employees themselves could make the decision without proper consideration of the elements which should constitute the appropriate units they could in any given instance defeat the practical significance of the majority rule; and, by breaking off into small groups, could make it impossible for the employer to run his plant.” See Hearings of S. 1958 Before the S. Comm. On Educ. & Lab., 74th Cong. 82 (1935), (statement of Francis Biddle), reprinted in 1 NLRA Legislative History 1458-59. He further recognized then that there was always the risk "of your Board gerrymandering and not carrying out the purposes of the Board,” but noted that "any arbitrary act of the Board in selecting the unit is subject to check on review by the court.” Id.

      For many years, the Board presumed store-wide or plant-wide units to be appropriate over multiple representation units within an employer. See, e.g., Laurel Assocs., Inc., d/b/a Jersey Shore Nursing & Rehab. Ctr., 325 N.L.R.B. 603 (1998) (service and maintenance unit in nursing home is presumptively appropriate); Gourmet, Inc., d/b/a Jackson's Liquors, 208 N.L.R.B. 807, 808 (1974) ("The employerwide unit ... is presumptively appropriate,”); Kalamazoo Paper Box Corp., 136 N.L.R.B. 134, 136 (1962) (“A plantwide unit is presumptively appropriate under the Act, and a community of interest inherently exists among such employees.”); May Dep’t Stores, Co., 97 N.L.R.B. 1007, 1008 (1952) (declaring a "store-wide unit” to be "the optimum unit for the purpose of collective bargaining" in the retail industry).
      This Circuit has long held a preference for consolidating bargaining units. See, e.g., Staten Island Univ. Hosp, 24 F.3d at 456 (“We regard the single-facility presumption as the kind of rebuttable presumption that was beyond dispute in American Hospital.”); accord NLRB v. Phoenix Programs of N.Y., Inc., 2 Fed.Appx. 166, 168-69 (2d Cir. 2001) (summary order) (affirming the Board’s determination that the employer failed to rebut the “single-facility presumption").

      . Seaboard. Marine, Ltd., 327 N.L.R.B. 556 (1999).
      The Board has maintained this governing approach following the Specialty Healthcare decision in 2011. See, e.g., A.S.V., Inc., 360 N.L.R.B. No. 138 (2014) (applying Specialty Healthcare and rejecting the proposed unit as "fractured” and thus inappropriate); Odwalla, Inc., 357 N.L.R.B. 1608, 1612-13 (2011) (applying Specialty Healthcare to find that the recommended unit was an inappropriate "fractured unit” and to further suggest that, even if a smaller constituent part of a proposed unit would constitute an appropriate free-standing unit, the unit may nevertheless become inappropriate if additional employees are proposed for inclusion who have less community of interest with one another than do the excluded employees).

      . See Brief for Amici Curiae Coalition for a Democratic Workplace, Chamber of Com- - merce of the United States of America, National Association of Manufacturers, National Retail Federation, and Retail Litigation Center, Inc., at 22-24, Constellation Brands v. NLRB, No. 15-2442-ag (2d Cir. Dec. 16, 2015), ECF No. 46.

      . See Cont'l Web Press, Inc. v. NLRB, 742 F.2d 1087, 1090 (7th Cir. 1984) (“[Bjreaking up a work force into many small units creates a danger that some of them will be so small and powerless that it will be worth no one’s while to organize them, in which event the members of these units will be left out of the collective bargaining process.”).

      . See NLRB v. Purnell's Pride, Inc., 609 F.2d 1153, 1156 (5th Cir. 1980) ("[T]he designation of ... small unit[s] that exclude[ ] employees with common skills, attitudes, and economic interests may unnecessarily curtail the union's bargaining power and may generate destructive factionalization and in-fighting among employees.”).

      . See, e.g., ante notes 18 and 19 (discussing the Board’s historical preference for employer-wide units and opposition to fractured units); but see, e.g., Montgomery Ward & Co., 150 N.L.R.B. 598, 601 (1964) (”[T]he Board has held that the appropriateness of an overall unit does not establish that a smaller unit is inappropriate.”).

      . 29 U.S:C. § 159(b), (c)(5).

      . See, e.g., Wheeling Island Gaming, Inc., 355 N.L.R.B, 637, 638 (2010).

      . Nestle Dreyer's, 821 F.3d at 496 (quoting Specialty Healthcare, 357 N.L.R.B. at 944).

      . Id. at 500 (brackets and internal quotation marks omitted).

      . Specialty Healthcare, 357 N.L.R.B. at 942 (emphases added) (internal quotation marks omitted).

      . See Serv. Emps. Int’l Union, Local 32BJ v. NLRB, 647 F.3d 435, 442 (2d Cir. 2011) ("Where the Board departs from prior interpretations of the Act without explaining why that departure is necessary or appropriate, the Board will have exceeded the bounds of its . discretion.” (internal quotation marks omitted)).

      . See Allied Chem. & Alkali Workers, Local Union No. 1 v. Pittsburgh Plate Glass Co., Chem. Div., 404 U.S. 157, 172-73, 92 S.Ct. 383, 30 L.Ed.2d 341 (1971); Kalamazoo Paper Box Corp., 136 N.L.R.B. at 137.

      . See Blue Man Vegas, LLC v. NLRB, 529 F.3d 417, 421-23 (D.C. Cir. 2008).

      . See Universal Camera Corp. v. NLRB, 340 U.S. 474, 488, 71 S.Ct. 456, 95 L.Ed. 456 (1951) ("Congress has merely made it clear that a reviewing court is not barred from setting aside a Board decision when it cannot conscientiously find that the evidence supporting that decision is substantial....”; see also Banknote Corp. of Am. v. NLRB, 84 F.3d 637, 651 (2d Cir. 1996)),

      . 29 U.S.C. § 159(b).

      . Staten Island Univ. Hosp., 24 F.3d at 455.; see also Universal Camera Corp., 340 U.S. at 488, 71 S.Ct. 456.

      . Staten Island Univ. Hosp., 24 F.3d at 455.

      . Constellation argues that the Specialty Healthcare test created a new legal standard. By deferring analysis of whether other employees were unjustifiably excluded until step two, the opposing party must now show ex-eluded employees share an “overwhelming community of interests" (not merely a "community of interests”). This higher showing, Constellation contends, violates Section 9(c) of the NLRA by giving controlling weight to the extent to which employees have already been organized. The Board countérs that the Specialty Healthcare framework "clarified— rather than overhauled—its unit-determination analysis.” See Nestle Dreyer's, 821 F.3d at 500.

      . Specialty Healthcare, 357 N.L.R.B. at 942.

      . Nestle Dreyer's, 821 F.3d at 500 (internal quotation marks omitted).

      . While the RD purported to identify differences between members of the petitioned-for ■unit and other employees at step, one, the language was little more than boilerplate. It seems highly unlikely, for example, that only employees of the petitioned-for cellar unit "unlike the unit of employees sought by the Employer ... must demonstrate skills of lower-level job classifications before moving up to higher-level job classifications within the department,” as the RD claims. Special App. 32-33. It seems implausible that non-cellar employees need not "demonstrate skills” before being promoted. The RD’s remaining findings of differences are similarly concluso-ry-

      . Nestle Dreyer’s, 821 F.3dat499.

      . The Board cannot recite the legal standard and summarize the factual record without any intervening explanation to demonstrate that it has performed the analysis demanded by its own caselaw. See, e.g., Long Island Head Start Child Dev. Servs. v. NLRB, 460 F.3d 254, 257-58 (2d Cir. 2006)("[T]he agency must examine the relevant data and articulate a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” (quoting Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43, 103 S.Ct. 2856, 77 L.Ed.2d 443 (1983)); see also New England Health Care Emps. Union v. N.L.R.B., 448 F.3d 189, 194 (2d Cir. 2006) ("[W]e may not supply a reasoned basis for the agency’s action that the agency itself has not giv-en_” (internal quotation marks omitted))).

      . Nestle Dreyer’s, 821 F.3d at 500 (internal quotation marks omitted); accord FedEx Freight, 832 F.3d at 442-43.

      . Cf. FedEx Freight, 832 F.3d at 443 (requiring analysis of "similarities between the employees in the petitioned-for unit and whether their interests were sufficiently distinct from other employees”); Staten Island Univ. Hosp., 24 F.3d at 454 (describing the unit-determination as turning on a finding of “the degree to which employees ... share a community of interests distinct from their interests as employees of the whole institution”).

      . Staten Island Univ. Hosp., 24 F.3d at 455 (citation omitted).

      . See Specialty Healthcare, 357 N.L.R.B. at 944 (internal quotation marks omitted).


author: JON O. NEWMAN, Circuit Judge:

text:
    UNITED STATES of America, Appellee, v. Ahmed A. ALGAHAIM, Mofaddal M. Murshed, Defendants-Appellants.

    Docket Nos. 15-2024(L), 15-2069(Con)
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Heard: September 29, 2016
    Decided: December 1, 2016

      Molly Corbett, Office of the Federal Public. Defender, Syracuse, NY (Lisa A. Peebles, Federal Public Defender, Syracuse, NY, on the brief), for Appellant Ahmed A. Algahaim.
    Jeremy Gutman, New York, NY, for Appellant Mofaddal M. Murshed.
    Paul D. Silver, Asst. U.S. Atty., Albany, NY (Richard S. Hartunian, U.S. Atty., Jeffrey C. Coffman, Asst. U.S. Atty., Albany, NY, on the brief), for Appellee.
    Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.

      . The Clerk is requested to change the official caption as above.

   JON O. NEWMAN, Circuit Judge:

This is an appeal by two defendants found guilty after a jury trial of offenses concerning misuse of benefits under the Supplemental Nutrition Assistance Program (“SNAP”) (formerly “food stamps”). Ahmed A. Algahaim and Mofaddal M. Murshed appeal from the June 12, 2015, judgments of the District Court for the Northern District of New York (Thomas J. McAvoy, District Judge). We affirm the convictions and sentences but also remand to permit the sentencing judge to consider non-Guidelines sentences in view of the significant effect of the loss enhancement in relation to the low base offense level.

Background

Defendants-Appellants Murshed and Al-gahaim worked at a small grocery store called D & D Grocery and Deli (“D & D”) in Hudson, New York. Murshed represented himself to be the owner of D & D. D & D was approved by the United States Department of Agriculture to redeem SNAP benefits for food items. SNAP benefits are provided to eligible recipients through the use of an electronic benefit transfer (“EBT”) card. It is unlawful to give cash in exchange for SNAP benefits.

Several bona fide customers of D <& D and confidential informants posing as customers testified that they were given cash when they used their EBT cards to redeem SNAP benefits. Both Murshed and Algahaim gave cash in exchange for SNAP benefits to at least one customer and one confidential informant on several occasions.

A grand jury indicted Murshed and Al-gahaim on two counts each. Count One charged both defendants with conspiring to present or to cause to be presented, benefits of a value of more than $100, knowing such benefits to have been received, transferred or used in violation of the provisions of the SNAP, in violation of 18 U.S.C. § 371 and 7 U.S.C. § 2024(c). Count Two charged Murshed with using, transferring, acquiring, or possessing SNAP benefits in a manner contrary to the Food Stamp Act and regulations issued pursuant to that act, in violation of 7 U.S.C. § 2024(b). Count Four charged Al-gahaim with a violation of the same statute. After a five-day jury trial, both were convicted on all counts.

Discussion

I. Jury Charge on Mens Rea

The appellants contend that the District Court’s response to inquiries from the jury undermined the Court’s initial instruction on the requisite mens rea. In its initial charge, the Court instructed that the burden was on the Government to prove beyond a reasonable doubt that the defendants acted intentionally and deliberately with knowledge “that receiving, transferring, using or possessing SNAP access devices, in exchange for cash, was a violation of the law or Department of Agriculture regulations.” The Court explained “intentionally,” “deliberately,” and “knowingly” in standard language. The initial charge properly explained the requisite mens rea.

The jury asked for clarification in two notes. The first asked for a definition of “voluntary,” a word included in the initial charge. Counsel did not suggest any particular language for the Court’s use in a response. The Court told the jurors that they should reread the state of mind instruction and that the meaning of “voluntary” would become apparent. Counsel for Murshed said he objected only to the Court’s saying that the meaning of “voluntary” would become apparent. Counsel for Algahaim made no objection.

The jury’s second inquiry asked whether all statements in the instructions carried equal weight and whether there was a difference between two sentences of the charge explaining the requisite mental state. Again, counsel offered no suggestions for a response. The Court’s reply included a reminder that the charge was to be considered as a whole, that there was no significant difference between the two sentences to which the jury referred, and that “voluntary,” the word queried in the jury’s first note, meant that an action was taken of a person’s own free will and was the opposite of being made to do something. Although the Court stated that it was providing all parties an exception to the supplemental charge, it is not clear what, if anything, counsel wanted the Court to tell the jury.

We see no basis for any complaint concerning the responses to either note. Neither response in any way undermined the initial, entirely proper explanation of the requisite mens rea.

II. Evidence of Mens Rea

Murshed contends that the evidence was insufficient to establish that he acted with the requisite mens rea. However, the evidence of the several instances when he swiped an EBT card, did not provide food, and instead provided cash gave the jury an ample basis for inferring the requisite mens rea.

III. Sentencing Issues

Guidelines calculations. Calculation of Murshed’s Guidelines sentencing range began with a base level of six for an offense involving fraud that has a statutory maximum sentence of less than twenty years. See U.S.S.G. § 2Bl.l(a)(2). Then from the loss table, twelve levels were added because of the amount of loss, see id. § 2Bl.l(b)(l)(G), bringing the adjusted offense level to eighteen, three times the base offense level. In criminal history category I, the adjusted offense level yielded a sentencing range of twenty-seven to thirty-three months. The District Court imposed a sentence of thirty months.

Algahaim’s Guidelines calculation also began with a base offense level of six, which was increased by ten levels for the amount of loss for which he was responsible, see id. § 2Bl.l(b)(l)(F), bringing the adjusted offense level to sixteen. In criminal history category I, the adjusted offense level yielded a sentencing range of twenty-one to twenty-seven months. The District Court imposed a sentence of twenty-one months.

Mitigating role claim. Algahaim contends that the District Court erred by denying him a mitigating role adjustment. The Guidelines authorize a sentencing judge to reduce an adjusted offense level by two levels if the defendant was a “minor participant,” by four levels if the defendant was a “minimal participant,” and by three levels in cases falling between those two classifications. See id. § 3B1.2. To be entitled to a mitigating role adjustment a defendant must have “play[ed] a part in committing the offense that makes him substantially less culpable than the average participant.” Id. § 3B1.2 Application Note 3(A).

In the pending case, no facts concerning what Algahaim did are in dispute. The issue for the sentencing judge was solely whether those facts entitled- Alga-haim to a mitigating role adjustment. That is the sort of legal determination we review de novo. On such review, we agree with Judge MeAvoy that no adjustment was warranted.

Although Algahaim’s role in managing the store might have been less than that of Murshed, Algahaim’s role in committing the charged offenses was virtually identical to Murshed’s. Algahaim did not play a part in the offenses that made him substantially less culpable than the average participant.

Presentence report claim. Murshed contends that the District Court violated Rule 32(i)(l)(A) of the Federal Rules of Criminal Procedure, which requires a sentencing court to “verify that the defendant and the defendant’s attorney have read and discussed the presentence report” (“PSR”). In the absence of objection in the District Court, we review this alleged error under the “plain error” standard. We have observed that “the plain-error exception to the contemporaneous-objection rule is to be used sparingly, to correct only particularly egregious errors when a miscarriage of justice would otherwise result.” United States v. Salim, 690 F.3d 115, 125 (2d Cir. 2012) (internal quotation marks omitted). At sentencing, Murshed’s lawyer assured Judge McAvoy, “Yeah, we did go over it [the PSR].” Although Murshed somewhat equivocated as to what he knew about the PSR, his lawyer’s statement entitled Judge McAvoy to conclude that Rule 32(i)(l)(A) had been satisfied. And the statement assures this Court that there had not been a plain error that affected Murshed’s substantial rights or seriously affected the fairness of the proceedings. See United States v. Marcus, 560 U.S. 258, 262, 130 S.Ct. 2159, 176 L.Ed.2d 1012 (2010) (outlining plain error criteria).

Effect-of loss adjustment. One aspect of the sentencing, however, warrants further consideration. The calculation of Murshed’s adjusted ■ offense level, driven by the monetary loss amount, increased his base offense level from six to eighteen, a three-fold increase. Similarly, the calculation of Algahaim’s adjusted offense level, also driven by the loss amount, increased his base offense level from six to sixteen. We recognize that these increases complied with the Guidelines Manual. We also recognize that the Commission had the authority to construct a set of guidelines that used loss amount as the predominant determination of the adjusted offense level for monetary offenses.

But the Commission could have approached monetary offenses quite differently. For example, it could have started the Guidelines calculation for fraud offenses by selecting a base level that realistically reflected the seriousness of a typical fraud offense and -then permitted adjustments up or down to reflect especially large or small amounts of loss. Instead the Commission valued fraud (and theft and embezzlement), at level six, which translates in criminal history category I to a sentence as low as probation, and then let the amount of loss, finely calibrated into sixteen categories, become the principal determinant of the adjusted offense level and hence the corresponding sentencing range. This approach, unknown to other sentencing systems, was one the Commission $as entitled to take, but its unusualness is a circumstance that a sentencing court is entitled to consider. See Kimbrough v. United States, 552 U.S. 85, 101, 128 S.Ct. 558, 169 L.Ed.2d 481 (2007) (sentencing judge may make a non-Guidelines sentence if the judge disagrees with a Commission’s policy determination); United States v. Cavera, 550 F.3d 180, 192 (2d Cir. 2008) (in banc) (same). Where the Commission has assigned a rather low base offense level to a crime .and then increased it significantly by a loss enhancement, that combination of circumstances entitles a sentencing judge to consider a non-Guidelines sentence. Cf. United States v. Lauersen, 348 F.3d 329, 344 (2d Cir. 2003) (cumulative effect of overlapping enhancements warranted consideration of departure), reh’g denied, 362 F.3d 160 (2d Cir. 2004); United States v. Gigante, 94 F.3d 53, 56 (2d Cir. 1996) (same).

We do not rule that the sentences were imposed in error. We conclude only that a remand is appropriate to .permit the sentencing judge to consider whether the significant effect of the loss enhancement, in relation to the low base offense level, should result in a non-Guidelines sentence.

Conclusion

Accordingly, we affirm the convictions and sentences, but remand for further consideration as outlined in this opinion.


text:
    UNITED STATES of America, Appellee, v. Jabar GILLIAM, AKA Jamal Gilliam, AKA Jabal Gilliam, AKA JB, Defendant-Appellant.
    Docket Nos. 15-387
    August Term 2016
    United States Court of Appeals, Second Circuit.
    Heard: September 29, 2016
    Decided: December 1, 2016
    - Robert A. Culp, Law Office of Robert A. Culp, Garrison, NY, for Appellant.
    Kristy J. Greenberg, Asst. U.S. Atty., New York, NY (Preet Bharara, U.S. Atty., Adam S. Hickey, Asst. U.S. Atty., New York, NY, on the brief), for Appellee.
    Before: NEWMAN, WINTER, and CABRANES, Circuit Judges.
   JON O. NEWMAN, Circuit Judge:

The principal issue on this appeal from a conviction for sex trafficking involving a minor is whether information from a global positioning system (“GPS”) can be obtained and used without a warrant to locate a suspect. This issue arises on an appeal by Jabar Gilliam from the January 28, 2015, judgment of the United States District Court for the Southern District of New York (Thomas P. Griesa, District Judge). Gilliam was convicted of sex trafficking offenses after a jury trial and sentenced to imprisonment for 240 months.

We conclude that exigent circumstances justified obtaining and using GPS location information without a warrant and therefore affirm.

Background

Offense conduct The Defendant’s offenses concern sex trafficking of a minor known as Jasmin. She recounted at trial the facts concerning Gilliam’s offenses. Gilliam. met Jasmin in Maryland in late October or early November 2011. She was sixteen at the time, but told Gilliam that she was seventeen. Gilliam asked Jasmin to work for him as a prostitute after she told him she was working for another pimp. Gilliam told Jasmin that he was going to take her to New York, where she could work for him.

Jasmin worked for Gilliam as a prostitute in Maryland in November 2011. On two occasions he punched her. On one occasion he had sex with her against her will in a hotel room and on November 30, Gilliam brought Jasmin to New York City after threatening to require her fifteen-year-old sister to work as a prostitute for him if Jasmin refused to go. Gilliam purchased Jasmin’s bus ticket for the trip, and on the ride to New York City, Gilliam told Jasmin to sit near the window and then put his legs up beside her so that Jasmin could not get out of her seat. Gilliam brought Jasmin to his mother’s apartment in the Bronx, where he had sex with her against her will. Jasmin worked as a prostitute for Gilliam in the Bronx, giving him all the money that she earned.

Locating and arresting Gilliam. On November 30, Jasmin’s foster mother reported to the Sheriffs Office in Frederick County, Maryland, that Jasmin was missing from home. The foster mother told authorities that Jasmin had mentioned a “boyfriend,” known to her as “Jabar,” who was later identified as Gilliam. On December 2, the case was referred to the Maryland State Police, which assigned Corporal Chris Heid to investigate. Corporal Heid spoke with -Jasmin’s social worker, who expressed concern that Jasmin was being forced into prostitution by Jabar Gilliam. The social worker based her concern on conversations with Jasmin’s biological mother. Heid then spoke with Jasmin’s biological mother, who confirmed this information. She told Heid that Gilliam had communicated with her directly and told her that he was planning to take Jasmin to New York to work there as a prostitute.

On that same day, based on this information, Heid contacted Sprint Corporation (“Sprint”), a telecommunications company. He told Sprint that he was “investigating a missing child who is ... being prostituted,” and requested GPS location information for Gilliam’s cell phone. Heid said that he was making the request because of “an exigent situation involving ... immediate danger of death or serious bodily injury to a[] person.” Sprint complied with Heid’s request and began providing real-time GPS location information to the Maryland State Police, which passed the information on to the FBI and the New York City Police Department (“NYPD)”.

Also on December 2, Jasmin placed a phone call to her biological mother from the Bronx apartment of Gilliam’s mother. NYPD officers went to that apartment and questioned Gilliam’s mother. Location information provided by Sprint indicated that Gilliam’s cell phone was a few blocks away. Canvassing the' neighborhood, two NYPD officers saw Gilliam and Jasmin on the street and followed them to the third floor of an apartment building. When an officer confronted Gilliam, he attempted to flee. A scuffle ensued, after which Gilliam was arrested.

Charges, trial, and conviction. A grand jury charged Gilliam in Count One with sex trafficking of a minor by force, fraud, or coercion in violation of 18 U.S.C. §§ 1591(a), (b)(1), and (b)(2), and in Count Two with transporting a minor in interstate commerce for purposes of prostitution in violation of 18 U.S.C. § 2428(a). Gilliam was convicted on both counts after a jury trial and sentenced to imprisonment for 240 months.

Discussion

I. Use of GPS Location Information

The District Court denied Gilliam’s motion challenging the use of GPS location information to determine where Gilliam was, information that led to his arrest. The Court ruled that the Stored Communications Act, 18 U.S.C. § 2702(c)(4), authorized, and exigent circumstances permitted, Corporal Heid to obtain location information from Sprint without a warrant.

Section 2702(c)(4) provides:
A provider ... may divulge a record or other information pertaining to a subscriber ... (not including the contents of communications covered by [other subsections] )—
(4) to a governmental entity, if the provider, in good faith, believes that an emergency involving danger of death or serious physical injury to any person requires disclosure without delay of information relating to the emergency.

18 U.S.C. § 2702(c)(4) (emphasis added).

The initial statutory issue presented by Sprint’s disclosure of GPS location information is whether it was “other information” within the meaning of subsection 2702(c)(4). Congress intended the phrase “other information” to cover “information about the customer’s use of the service.” S. Rep. No. 99-541, at 38 (1986). Several district courts have interpreted the phrase to include the location of a customer’s cell phone. See United States v. Graham, 846 F.Supp.2d 384, 396 (D. Md. 2012) (subsequent history omitted); In re Application of the United States for an Order Authorizing the Release of Historical Cell-Site Info., 809 F.Supp.2d 113, 125 (E.D.N.Y. 2011); In re Application of the United States for Prospective Cell Site Location Info. on a Certain Cellular Telephone, 460 F.Supp.2d 448, 460-61 (S.D.N.Y. 2006). We agree that “other information” includes the location of a subscriber’s cell phone.

The second statutory question is whether the circumstances presented to Sprint showed “an emergency involving danger of ... serious physical injury to any person.” We think it obvious that “involving,” 18 U.S.C. § 2702(c)(4), includes a realistic threat of such injury, not just a completed injury. That statutory question also arises in connection with the constitutional issue presented by Sprint’s disclosure at the request of a law enforcement officer and the use of that information to locate and arrest Gilliam without a warrant. That issue is whether such a disclosure and arrest without a warrant violated the Fourth Amendment.

Both the second statutory issue and the Fourth Amendment issue turn on whether the circumstances known to law enforcement and presented to Sprint were within the category of “exigent circumstances” that permit warrantless searches. See Riley v. California, — U.S. —, 134 S.Ct. 2473, 2487, 189 L.Ed.2d 430 (2014). “The core question is whether the facts ... would lead a reasonable, experienced officer, to believe that there was an urgent need to ... take action.” United States v. Klump, 536 F.3d 113, 117-18 (2d Cir. 2008) (internal citations and quotation marks omitted). “A district court’s determination as to whether exigent circumstances existed is fact-specific, and will not be reversed unless clearly erroneous.” United States v. MacDonald, 916 F.2d 766, 769 (2d Cir. 1990) (in banc) (citations omitted).

We agree with the District Court that exigent circumstances justified GPS tracking of Gilliam’s cell phone. The . evidence available to law enforcement at the time of the search for Gilliam’s location was compelling. Based on Heid’s discussions with Jasmin’s foster mother, social worker, and biological mother, law enforcement officers had a substantial basis to believe that Gilliam was bringing Jas-min to New York City to require her to work there as a prostitute. That type of sexual exploitation of a minor has often been found to pose a significant risk of serious bodily injury. See, e.g., United States v. Daye, 571 F.3d 225, 234 (2d Cir. 2009), abrogated on other, grounds by Johnson v. United States, — U.S. —, 135 S.Ct. 2551, 192 L.Ed.2d 569 (2015); United States v. Curtis, 481 F.3d 836, 838-39 (D.C. Cir. 2007). As the Ninth Circuit has observed, prostitution of a child involves “the risk of assault or physical abuse by the pimp’s customers or by the pimp himself’ and “a serious potential risk of contracting a sexually transmitted disease.” United States v. Carter, 266 F.3d 1089, 1091 (9th Cir. 2001) (internal citations and quotation marks omitted).

Several courts have found that exigent circumstances justified warrantless entry into premises to avoid risk of injury to a minor held there. See, e.g., Hunsberger v. Wood, 570 F.3d 546, 555 (4th Cir. 2009); United States v. Kenfield, 270 Fed.Appx. 695, 696-97 (9th Cir. 2008); United States v. Thomas, No. 3:14-CR-00031 (RNC), 2015 WL 164075, *4-5 (D. Conn. Jan. 13, 2015); United States v. Williams, No. 12-CR-6152G(MWP), 2015 WL 429087, at *12-13 (W.D.N.Y. Feb. 2, 2015), report and recommendation adopted, No. 12-CR-6152(FPG), 2015 WL 3454430 (W.D.N.Y. May 29, 2015). Locating on the streets a victim of sexual exploitation might seem to present a less immediate need for police action than entering premises where such a victim is being held, but it is nonetheless sufficient to constitute exigent circumstances..

Gilliam contends that the time required to obtain a warrant would not have significantly added to the risk of ipjpry to Jas-min. That argument, calls to mind the plight of social workers who have to decide whether to face a lawsuit for quickly removing a child from the home of an abusive parent or for failing to act in time to prévent the child’s injury. “If they err in interrupting parental custody, they may be accused of infringing the parents’ constitutional rights. If they err in not removing the child, they risk injury to the child and may be accused of infringing the child’s rights.” Van Emrik v. Chemung County Dep’t of Social Services, 911 F.2d 863, 866 (2d Cir. 1990). Faced with exigent circumstances based on credible information that Gilliam was engaged in prostituting a missing child across state lines, Corporal Heid acted reasonably in obtaining Gilliam’s cell phone location information without a warrant.

Congress has “deemed it reasonable to subordinate any individual privacy interest in cell phone location information to society’s more compelling interest in preventing an imminent threat of death or serious bodily injury,” and has therefore given service providers the authority to decide whether there existed an “emergency involving danger of death or serious physical injury to any person.” United States v. Caraballo, 963 F.Supp.2d 341, 360 (D. Vt. 2013) (citations omitted), aff'd, 831 F.3d 96 (2d Cir. 2016). Based on Heid’s affirmation, Sprint had a good faith basis for believing that the disclosure of Gilliam’s cell phone, location was necessary to protect a missing child from being prostituted and subject to serious physical injury.

II. Other Claims

Gilliam’s other claims do not require extended discussion. His arrest was supported by probable cause, based both on events occurring at the scene of his arrest and his sex trafficking with respect to Jasmin. There was no error in the jury charge, and the evidence fully supported the jury’s verdict.

Conclusion

.The judgment of the District Court is affirmed.

      . The cited cases involve interpretation of 18 U.S.C. § 2703, a statute different from, but closely related to, section 2702. Section 2703 concerns mandatory disclosures pursuant to a warrant. Subsection 2703(c) requires disclosure of "a record or other information pertaining to a subscriber .,. (not including the contents of communications)....," language identical to the language of subsection 2702(c).

      . “[T]he Government assumes for purposes of this appeal that cell phone users have a reasonable expectation of privacy in [location] information under the Fourth Amendment.” Br. for Appellee 14 n,3 at 15. We make the . same assumption.