author: WALLACE, Senior Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Luke D. BRUGNARA, Defendant-Appellant.
    No. 15-10509
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted January 10, 2017, San Francisco, California
    Filed May 11, 2017

      Dena M. Young (argued), Law Offices of Dena Marie Young, Santa Rosa, California, for Defendant-Appellant.
    Meredith B. Osborn (argued), Assistant United States Attorney; Barbara J. Valli-ere, Chief, Appellate Division; Brian J. Stretch, United States Attorney; United States Attorney’s Office, San Francisco, California; for Plaintiff-Appellee.
    Before: J. CLIFFORD WALLACE and MILAN D. SMITH, JR., Circuit Judges, and RALPH R. ERICKSON, District Judge.

       The Honorable Ralph R. Erickson, United States District Judge for the District of North Dakota, sitting by designation.

   OPINION

WALLACE, Senior Circuit Judge:

Luke Brugnara appeals from his convictions following a jury trial for two counts of wire fraud and one count each of mail fraud, false declaration before a court, escape, and contempt. He also appeals from a plethora of summary contempt citations stemming from his conduct during trial. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.

I.

The events of this case trace back to March 2014, when Luke Brugnara, a former San Francisco real estate tycoon with a fondness for high-end art, agreed to purchase several million dollars’ worth of paintings and other works from art dealer Rose Long for display in his museum. There were two problems: Brugnara had neither the means to pay for the works nor a museum in which to place them. He did not share this information with Long. The promise to put the art in a museum secured him a ten percent discount on the cost. Even at the reduced price, he refused to pay a deposit or any of the shipping costs, which Long considered unusual.

Long traveled to San Francisco that April to be present when the art was delivered to what she believed was Brugnara’s museum. Upon arriving at the address Brugnara had given her, she discovered that it was his personal residence. Long had serious misgivings about leaving five crates of art in a garage, but nonetheless allowed the crates to be unloaded. Brug-nara had previously expressed a desire to inspect the art, but rebuffed Long’s attempt to do so at the time of delivery because, according to him, he had an appointment to view some property that morning. As a result, none of the crates had been opened when Long left Brug-nara’s home.

The negotiations began to run into difficulty when Brugnara continued to dissuade Long in her attempts to inspect the art with him, always claiming that he was too busy. Long and her partner, Walter Maibaum, soon engaged an attorney to help resolve the situation. At this point, Brugnara asserted—for the first time— that the art had been a gift. When Maib-aum’s attorney attempted to discuss the matter with Brugnara’s lawyer, the latter insisted that only four crates had been delivered, along with a smaller box. He also indicated that Brugnara would be willing to return the art “in exchange for something.”

Once negotiations for the art’s return stalled, the case was referred to the Federal Bureau of Investigation (FBI). The FBI searched Brugnara’s home in May 2014 and recovered four of the crates from the garage, none of which appeared to have been opened. The fifth crate, which Long testified contained a bronze casting of Edgar Degas’s Little Dancer statue, was not recovered and remains missing.

Brugnara was detained pending trial, but the district court granted him furloughs starting in late 2014 to meet with his attorney at the federal court buildings in Oakland and San Francisco for trial preparation. During one of these meetings in February 2015, Brugnara escaped from the building and fled on foot. He was apprehended several days later in Los Ga-tos, California. The government added several new charges against Brugnara after this incident, bringing the total to nine: four counts of wire fraud, one count of mail fraud, two counts of false declaration before a court, one count of escape, and one count of contempt of court.

Brugnara’s flight also created turbulence with respect to his representation when he asserted that his attorney had “green-lighted” the escape. This lawyer withdrew for ethical reasons, and the lawyer who took his place also withdrew shortly after being appointed. At that point, Brugnara decided to represent himself at trial. The district court held a thorough two-day Faretta hearing and found that Brugnara was competent to represent himself and that he was knowingly and voluntarily waiving his right to counsel. The judge therefore granted' the request to proceed pro se.

From the moment his trial began, Brug-nara’s behavior could be described as appalling. He quickly dispensed with procedural and evidentiary requirements during his examinations by making speeches and asking improper “questions” designed to place inadmissible evidence before the jury. If the government attorneys objected, Brugnara would speak over them and interrupt the judge when he tried to make a ruling. Brugnara shouted down attempts to rein him in on several occasions.

In addition to these procedural affronts, Brugnara was not shy about personally insulting those around him. Some of the more egregious examples include telling the government’s attorney that she dressed “like a Nazi” and suggesting that the judge hand the prosecutor his robe because she was running the courtroom. Nor did he limit his scorn to the government and district judge: he berated witnesses, too. During his cross-examination of Long, for example, he rudely asked her over and over again if her cognitive abilities were impaired. He also demeaned a probation officer as unqualified for her job because she did not know the difference between a corporate officer and a shareholder.

In addition to this insulting behavior, Brugnara was prone to throwing tantrums when things did not go his way. An illustrative example occurred following his cross-examination of one of the government’s witnesses, a commercial mortgage broker who had previously helped Brug-nara obtain financing on various real estate projects. When Brugnara asked if he would still be able to obtain financing through the witness’s company if he were acquitted, the witness responded emphatically in the negative. Brugnara then stumbled through several improper, thinly-veiled attempts to convince the witness to change his answer, only to have the witness say, in front of the jury, that he would have a better chance of “successfully doing brain surgery” than placing a loan for a museum of which Brugnara would be the landlord and tenant. After the cross-examination ended, the jurors and witness were barely out of the courtroom before Brug-nara launched into a top-of-his-lungs tirade about how he had built himself up from nothing and accusing the government and the court of costing him his business relationship. The situation quickly deteriorated and Brugnara had to be escorted from the courtroom.

Throughout all of this, the district judge managed the trial as best he could. He sanctioned Brugnara with summary contempt on several occasions when his behavior became too outrageous. In all, the district judge held Brugnara in summary contempt more than a dozen times and punished him with a total of 471 days in prison to be added onto whatever sentence might be imposed in the event Brugnara were convicted.

Partway through the trial, a jail official ordered that Brugnara be moved because his constant complaints about the confinement conditions required jail personnel to make frequent trips to court to testify, burdening the jail’s operations. Personnel at the jail where Brugnara was housed put all of his possessions in bags, including his legal materials, to move him to a different facility. The district court admonished the official for moving Brugnara and disorganizing his legal papers in the middle of trial, but found that there was no intent to interfere with Brugnara’s self-representation. The trial moved forward when Brugnara refused the court’s offers of a continuance to reorganize his materials, indicating unequivocally that he did not want to delay the proceedings.

Jury deliberations were no less dramatic than the rest of the trial. The jury informed the court in a note that one of the jurors had been untruthful about his criminal history during voir dire and was attempting to influence the discussion based on his experience as a prisoner. The same juror had also reportedly bolted from the jury room in the midst of deliberations, only to be found on another floor of the courthouse.

The district judge summoned the juror, identified as I.J., into the courtroom to inquire into his behavior. When the judge asked about his criminal history, I.J. became irate and commenced what the judge described as a “relentless political tirade.” Court security personnel had to remove I.J. from the courtroom when he became physically belligerent, including whipping his jacket against the seats of the jury box and taking off his shoe and brandishing it like a weapon. When I.J. returned to the courtroom so that the judge could dismiss him, he immediately launched into another diatribe, proclaiming that Brugnara was innocent because “[h]e is Italian” and accusing the judge of “representflng a] Nazi system.” The judge then dismissed I.J. from the jury and ordered him removed from the building. Throughout this episode, Brugnara objected to I.J.’s removal and fought to keep him on the jury. The remaining jurors and the alternate juror who took I.J.’s place ultimately convicted Brugnara of six of the nine counts with which he was charged.

The district judge appointed counsel for all post-trial proceedings at Brugnara’s request. Brugnara subsequently tried to return to pro se status, but the judge held that Brugnara had forfeited that right with his aberrant behavior during trial. Brug-nara’s appointed counsel filed two post-trial motions: one for judgments of acquittal on the mail fraud, wire fraud, and false declaration charges, and one for a new trial. The latter motion alleged that Brug-nara had been deprived of a fair trial because (1) the district judge improperly prevented Brugnara from asking a witness, who was arguably an art expert, about the art’s value; (2) he was denied access to his legal materials during trial; (3) the district court failed to terminate his self-representation even though he could not control his behavior; and (4) one of the jurors, C.D., did not answer voir dire questions about her criminal history truthfully. When post-trial valuations revealed that the art at issue was worth substantially less than Long had advertised, Brugnara’s counsel supplemented the new trial motion to argue that the valuations were newly discovered evidence that warranted a second trial. The district judge denied both motions in a comprehensive order.

At sentencing, Brugnara’s counsel moved for a competency hearing and mental evaluation of his client. Although the district judge had rejected a similar suggestion by Brugnara’s advisory counsel on the third day of trial, he ordered briefing on the issue at sentencing after appointed counsel supported his request with an expert’s declaration. The expert’s declaration did not persuade the judge, however, and he denied the motion after finding that Brugnara could understand the nature of the proceedings against him and was able to assist in his own defense. After a lengthy allocution by Brugnara, the court sentenced him to eighty-four months in prison. Brugnara now appeals.

II.

Brugnara argues first that the district court should have granted his new trial motion based on the newly discovered valuation evidence. “We review a district court’s order denying a motion for a new trial made on the ground of newly discovered evidence for abuse of discretion.” United States v. Hinkson, 585 F.3d 1247, 1259 (9th Cir. 2009) (en banc). This analysis involves a two-step process. First, we must “determine de novo whether the trial court identified the correct legal rule to apply to the relief requested.” Id. at 1261-62. If it did, then we must “determine whether the trial court’s application of the correct legal standard was (1) ‘illogical,’ (2) ‘implausible,’ or (3) without ‘support in inferences that may be drawn from the facts in the record.’ ” Id. at 1262, quoting Anderson v. City of Bessemer City, N.C., 470 U.S. 564, 577, 105 S.Ct. 1504, 84 L.Ed.2d 518 (1985).

In this context, the correct legal rule is that a defendant is entitled to a new trial based on newly discovered evidence only when he can show the following:

(1) [T]he evidence is newly discovered;
(2) the defendant was diligent in seeking the evidence; (3) the evidence is material to the issues at trial; (4) the evidence is not (a) cumulative or (b) merely impeaching; and (5) the evidence indicates the defendant would probably be acquitted in a new trial.

Id. at 1264. Brugnara does not argue that the district judge misidentified this rule, and indeed he did not. Accordingly, only the second part of the test is at issue: whether the district judge applied the rule illogically, implausibly, or without support in the record. We hold that he did not because Brugnara was not diligent in seeking the valuation evidence.

The record shows that Brugnara believed (or at least asserted) that the art was worthless both before and during trial, yet he made only minimal efforts to have it valued independently. He filed two pro se motions requesting valuations six months before trial, both of which the district court denied as improper because he was represented by an attorney at that time. His then-lawyer also filed a motion to appoint Sotheby’s and Christie’s to value the art, but the district court denied it because neither auction house was willing to be appointed. In that same order, the court advised Brugnara to follow the Criminal Justice Act (CJA) expert appointment procedure if he wanted an expert provided to appraise the art. There is no indication that Brugnara even attempted to avail himself of this procedure until after trial.

It is not uncommon that a party fails to act diligently when he does not take advantage of reasonably available means to obtain known or suspected evidence before or at least during trial. In Hinkson, for example, the defendant sought a new trial on the basis of affidavits from military personnel confirming that a key prosecution witness had testified falsely about his service record. 585 F.3d at 1257. We affirmed the district court’s finding that the defendant did not act with'diligence because he did not obtain the affidavits until a month after trial, even though he learned three months before trial that the witness was only sixteen years old at the end of the Korean War, in which he claimed to have served. Id. at 1265. The defendant further showed a lack of diligence by not seeking a continuance at trial to obtain the affidavits after the district court suggested that the proof they contained “was precisely the evidence ... [that] might help it understand [the witness’s] true military record.” Id. Thus, the defendant was not diligent because he did not use available means to obtain the evidence in time to use it at trial.

For the same reason, we affirmed the denial of a motion for a new trial in United States v. George, 420 F.3d 991 (9th Cir. 2005). The defendant in that case, who was charged with willfully filing false tax returns, had served as a court-appointed receiver for five radio stations, and he argued that receivership returns for two of those stations showed that a prosecution witness had given false material testimony. Id. at 994, 1000. But his “failures to subpoena [the witness] before trial or contact the California State Franchise Tax Board to obtain copies of the radio stations’ state returns suggested] that [he] was not diligent.” Id. at 1000-01. In United States v. Kulczyk, 931 F.2d 542 (9th Cir. 1991), we affirmed the district court, concluding that a defendant was not diligent in finding two known witnesses because he failed to “inform the judge before or at least during the trial that he was unable to locate [them].” Id. at 548-49.

Like the defendants in those cases, Brugnara showed a lack of diligence here by waiting until after he was convicted to obtain the valuation evidence, even though the court called his attention before trial to the possibility of a Criminal Justice Act (CJA) expert appointment. That Brugnara represented himself does not compel a contrary conclusion: there is no evidence that his pro se status prevented him from utilizing the CJA process, and in any event the district court fully apprised him of the difficulties associated with engaging an expert from jail. Brugnara thus chose to represent himself fully advised, and he may not now complain that the challenges the district court warned him about in fact came to pass. Accordingly, it was not an abuse of discretion for the district judge to deny his new trial motion.

HI.

Brugnara next contends that there was not enough evidence to sustain his mail fraud, wire fraud, and false declaration convictions. We review evidentiary insufficiency claims de novo and findings of fact for clear error. United States v. Over-ton, 573 F.3d 679, 685 (9th Cir. 2009). “Evidence is sufficient to support a conviction unless, viewing the evidence in the light most favorable to sustaining the verdict, no rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” Id. In other words, we must first presume that the trier of fact resolved any conflicting inferences from historical facts in favor of the prosecution, and then determine whether the evidence, thus viewed, could have led any rational fact-finder to find the defendant guilty. United States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc).

A.

The elements of mail fraud and wire fraud are essentially identical: the government must show (1) a scheme to defraud, (2) the use of either the mail or wire, radio, or television to further the scheme, and (3) the specific intent to defraud. United States v. Jinian, 725 F.3d 954, 960 (9th Cir. 2013) (wire fraud); United States v. Rogers, 321 F.3d 1226, 1229 (9th Cir. 2003) (mail fraud); see also United States v. Oren, 893 F.2d 1057, 1060 n.1 (9th Cir. 1990) (“The wire fraud statute is in pari materia with the mail fraud statute ... and is therefore given a similar construction”). Conceding the second element of both offenses, Brugnara argues only that the evidence did not establish the requisite scheme or specific intent to defraud.

The first element covers “any scheme to deprive another of money or property by means of false or fraudulent pretenses, representations, or promises.” Carpenter v. United States, 484 U.S. 19, 27, 108 S.Ct. 316, 98 L.Ed.2d 275 (1987). To be actionable, the misrepresentations must have been material. See United States v. Woods, 335 F.3d 993, 998-99 (9th Cir. 2003).

Here, the government provided evidence that Brugnara made at least two knowingly false representations in the course of negotiating the sale: that he would “buy” the art and that he would place it in his museum. Long’s and Maib-aum’s testimony established that both representations were material to the decision to ship the art to Brugnara. Furthermore, Brugnara refused to pay for shipping or provide a deposit. From these facts, a rational fact-finder could have determined that Brugnara had a scheme to obtain the art without paying for it, and that his misrepresentations were part of that scheme.

The third element, Brugnara’s specific intent to defraud, “may be established by circumstantial evidence.” Rogers, 321 F.3d at 1230. A rational jury could have inferred such intent from Brugnara’s “statements and conduct.” United States v. Beecroft, 608 F.2d 753, 757 (9th Cir. 1979). He offered to “buy” the art when he knew that he had no money to do so and place it in a museum that he knew did not exist. Coupled with his unusual refusal to provide a down payment before delivery, these willful misrepresentations support a finding of intent to defraud.

Brugnara’s actions after the delivery only bolster this determination. See Rogers, 321 F.3d at 1230 (concluding that intent to defraud could be inferred from after-the-fact misrepresentations designed to cover up fraudulent conduct). For instance, despite Long’s repeated urging, Brugnara refused to inspect the art and made excuses not to do so. Once Long and Maibaum involved their lawyers, Brugnara asserted, without support, that the art had been a gift. He also created confusion as to the number of crates that had been delivered. A rational jury could have viewed these as attempts to avoid paying for the art. Such a jury also could have construed Brugnara’s offer to return the art “in exchange for something” as a type of ransom. This is more than enough evidence from which the jury could have found rationally that Brugnara had the specific intent to defraud.

We are not persuaded by Brugnara’s arguments to the contrary. He contends that Long was actually trying to defraud him by selling him fake art, which, he contends, precludes a finding of fraud on his part. But Long’s alleged conduct, even if true, has no bearing on the elements of Brugnara’s crimes. It is not material who approached whom or whether she intended to defraud him. Long’s actions do not change the fact that Brugnara knowingly made false representations meant to deprive her and Maibaum of their property.

His second argument—that the government’s case hinged on the disappearance of the Little Dancer, which he contends is conversion rather than fraud—is rejected. The government put forward evidence of Brugnara’s numerous false statements and other conduct to show his scheme and intent to defraud. Although the Little Dancer’s disappearance was a component of that evidence, it was not shown to be the linchpin of the case. The government still would have had adequate evidence of Brugnara’s fraud even if the statue had not disappeared. At best, this argument shows that, in addition to fraud, Brugnara or someone else might also be guilty of conversion.

We therefore hold that sufficient evidence supports Brugnara’s convictions for wire fraud and mail fraud.

B.

Brugnara also challenges the sufficiency of the evidence supporting his false decía-ration conviction. The false statement for which he was convicted was his assertion, during a supervised release revocation hearing, that a Sotheby’s representative had told him that some of the art at issue was not authentic. He now argues that the jury was given too little information about the purpose of that hearing to have rationally concluded that the statement was material to the decision being made. While the evidence on this point could have been stronger, we hold that it was constitutionally sufficient to sustain his conviction.

The crime of false declaration before a court is comprised of five elements: the defendant “(1) knowingly ma[d]e a (2) false (3) material declaration (4) under oath (5) in a proceeding before or ancillary to any court of the United States.” United States v. McKenna, 327 F.3d 830, 838 (9th Cir. 2003), citing 18 U.S.C. § 1623(a). As indicated, Brugnara contests only the sufficiency of the evidence supporting the third element, materiality of the statement. “A statement is material if ‘it has a natural tendency to influence, or was capable of influencing, the decision of the decision-making body to which it was addressed.’ ” Id. at 839, quoting United States v. Leon-Reyes, 177 F.3d 816, 820 (9th Cir. 1999). This lenient standard is met as long as the false statement is “relevant to any subsidiary issue under consideration.” Id., quoting United States v. Lococo, 450 F.2d 1196, 1199 (9th Cir. 1971) (emphasis added).

The government points to two items of evidence that it argues support the jury’s finding of materiality. The first is the district judge’s prefatory explanation to the jury, before the government read Brug-nara’s false statement into evidence, that Brugnara made the statement as part of “prior proceedings in this case.” The second is the judge’s question during the revocation hearing, which followed up on the false statement, concerning the identity of the person at Sotheby’s with whom Brugnara had purportedly spoken. Viewed in the light most favorable to sustaining the verdict, this evidence could rationally support a finding that Brugnara’s false statement was material beyond a reasonable doubt.

As a threshold matter, however, there is a potential problem with the first piece of evidence. The district judge’s statement, by itself, is not competent evidence, as “[t]he presiding judge may not testify as a witness at the trial.” Fed. R. Evid. 605. Furthermore, no objection is required to preserve this issue. Id. No party has raised an argument on this point, however, so it may be waived. See Indep. Towers of Wash. v. Washington, 350 F.3d 925, 929 (9th Cir. 2003) (“Our circuit has repeatedly admonished that we cannot ‘manufacture arguments for an appellant’ and therefore we will not consider any claims that were not actually argued in appellant’s opening brief’).

Even if not waived, the judge’s announcement of this fact in evidentiary fashion does not warrant reversal. We generally review issues that were not brought to the district court’s attention for plain error. Fed. R. Crim. P. 52(b). Because objecting to a presiding judge’s alleged testimony during trial is not required to preserve the issue, however, we will employ the more lenient harmless error standard without holding that it necessarily applies in a situation such as this. See Fed. R. Crim. P. 52(a).

The district judge’s statement that Brugnara’s false declaration occurred during a prior proceeding in the case was nothing more than a description of the court’s own records, of which a district court may properly take judicial notice. See Fed. R. Evid. 201(b); Kelly v. Johnston, 111 F.2d 613, 614-15 (9th Cir. 1940). When taking judicial notice, however, a court must announce that it is doing so on the record to ensure that the parties have an opportunity to be heard upon request. United States v. Lewis, 833 F.2d 1380, 1385 (9th Cir. 1987); see also Fed. R. Evid. 201(e). The district judge did not do that here. But that error did not affect Brug-nara’s substantial rights because there would have been no colorable basis to exclude the judicially-noticed fact as to when Brugnara made the statement. Accordingly, the jury could properly consider that evidence in reaching its verdict.

Taken together, the circumstances under which Brugnara made the false statement and the district judge’s followup question are enough to sustain the false declaration conviction. The jurors knew from the trial itself that the art’s authenticity was a “subsidiary issue” at minimum in the case, and therefore rationally could have inferred that it was so in the case’s prior proceedings. The follow-up question only bolsters this inference. Viewed in the light most favorable to the prosecution, that question implies that the judge considered the information relevant to the proceeding at hand. We acknowledge that asking a question in response to a statement does not necessarily mean that the judge considered the statement material. But “when ‘faced with a record of historical facts that supports conflicting inferences,’ ” we “must presume—even if it does not affirmatively appear in the record—that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.” Nevils, 598 F.3d at 1164, quoting Jackson v. Virginia, 443 U.S. 307, 326, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). Accordingly, we will not disturb Brugnara’s false declaration conviction.

IV.

Brugnara points to two alleged procedural violations by third parties that he asserts deprived him of a fair trial. The first concerns the disorganization of his legal materials during trial. Second, he believes that the two jurors’ untruthful responses regarding their criminal histories during voir dire undermined the jury’s impartiality.

A.

We begin with the access to legal materials claim. The parties disagree on the applicable standard of review, but we need not reach this issue because Brugnara was not denied reasonable access to his legal materials under any standard.

The Sixth Amendment requires that an incarcerated pro se defendant be given “reasonable access to ‘law books, witnesses, or other tools to prepare a defense.’ ” United States v. Sarno, 73 F.3d 1470, 1491 (9th Cir. 1995), quoting Milton v. Morris, 767 F.2d 1443, 1446 (9th Cir. 1985). “The right of access is not unlimited, but must be balanced against the legitimate security needs or resource constraints of the prison.” Id. In imposing restrictions on this access, the government “may not unreasonably hinder the defendant’s efforts to prepare his own defense.” Milton, 767 F.2d at 1446-47.

We reject Brugnara’s argument because there is no evidence that he was denied any access to his legal materials. The record shows only that prison personnel disorganized them when they placed them in plastic bags before moving him to a new facility. While undoubtedly inconvenient, this action did not prevent Brug-nara from actually accessing those materials. He has not shown that any materials were lost or withheld, or that prison authorities otherwise impeded his access to them. In fact, he has identified no specific prejudice at all, such as not being able to locate a particular document necessary for trial preparation. He merely asserts, without elaboration, that the record shows he was “irreparably prejudiced.”

In addition, Brugnara’s staunch refusal to accept the district court’s offers for a continuance to reorganize his materials makes his argument difficult to credit. More importantly, though, the mere disorganization of Brugnara’s legal materials, without evidence of bad faith or resulting prejudice that amounts to the deprivation of access, is not enough to make out a constitutional violation. His argument to the contrary does not comport with our cases approving significant restrictions on access itself. In one case, for instance, we held that limiting a pro se defendant to one-sixth of the legal materials he possessed did not unreasonably curtail his materials access. See United States v. Robinson, 913 F.2d 712, 717-18 (9th Cir. 1990). Brugnara, by contrast, has not shown that he was denied any access to his legal materials, let alone reasonable access. We hold, therefore, that the prison officials’ actions did not violate Brugnara’s Sixth Amendment right.

B.

Next, Brugnara contends that he was deprived of his right to trial by an impartial jury because jurors I.J. and C.D. did not truthfully answer questions about their criminal histories during voir dire.

The argument concerning I.J. is the easiest to address because Brugnara has waived it. Not only did Brugnara actively seek to keep I.J. on the jury after his criminal history came to light (and after the outburst that immediately preceded I.J.’s removal from the jury), but he also failed to mention I.J. in either his new trial motion or its supplement. “Issues not presented to the district court cannot generally be raised for the first time on appeal.” United States v. Robertson, 52 F.3d 789, 791 (9th Cir. 1994). Although there are narrow exceptions to this rule, id., none applies here. Brugnara has therefore waived this issue, and we will not consider it.

The government believes that Brugnara has also waived his argument with respect to C.D. because the district court found that he learned about her criminal record during deliberations but said nothing until he moved for a new trial. While the record shows that a private investigator told Brugnara’s advisory counsel about.C.D.’s criminal history the day before the verdict, there is no direct evidence that Brugnara himself knew about it. In denying the new trial motion, the district judge concluded that Brugnara’s knowledge could be inferred because it was reasonable to believe that advisory counsel communicated the information to Brugnara, a determination that Brugnara contests. We need not resolve this dispute because Brugnara has not shown any juror bias requiring reversal.

The Sixth Amendment guarantees a criminal defendant the right to a trial by impartial jurors. United States v. Simtob, 485 F.3d 1058, 1064 (9th Cir. 2007). The presence of even one biased juror affects that right. Id. Juror bias comes in three forms: actual, implied, and McDonough bias. United States v. Olsen, 704 F.3d 1172, 1189 (9th Cir. 2013). With regard to C.D., Brugnara argues only the third.

A defendant must make two showings to obtain a new trial based on Mc-Donough bias: first, that the juror in question “failed to answer honestly a material question on voir dire,” and second, “that a correct response would have provided a valid basis for a challenge for cause.” Mc-Donough Power Equip., Inc. v. Greenwood, 464 U.S. 548, 556, 104 S.Ct. 845, 78 L.Ed.2d 663 (1984). Only concealment for “reasons that affect a juror’s impartiality can truly be said to affect the fairness of a trial.” Id.

Assuming, without deciding, that C.D. failed to answer a material voir dire ■question honestly, Brugnara still does not succeed on the second part of the test because a truthful answer would not have provided a valid basis to challenge her for cause. Cf. Elmore v. Sinclair, 799 F.3d 1238, 1253 (9th Cir. 2015) (holding that state supreme court did not unreasonably dismiss juror bias claim where juror “likely could not have been removed for cause” even if a truthful answer would have been material). C.D.’s criminal record consisted of a few misdemeanor convictions and one drug possession charge without a record of disposition. None of these convictions would automatically disqualify her from serving on the jury, and there is no evidence as to why she did not answer truthfully because the defense failed to raise the issue until after trial. As a result, the record does not show that Brugnara could have validly challenged C.D. for cause if she had answered truthfully, a point he effectively concedes by arguing only that an honest response would have prompted further inquiry and may have led to a challenge for cause. Accordingly, we hold that C.D.’s presence did not violate Brug-nara’s right to an impartial jury.

V.

The final pair of arguments concerns Brugnara’s ability to represent himself. He contends both that the district judge should have terminated his self-representation when it became clear that he could not control his behavior, and that the district judge should have held a competency hearing, either sua sponte during trial or at counsel’s request during sentencing.

A.

A criminal defendant’s right to represent himself is not absolute. In Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975), the Supreme Court made it clear that a trial judge has discretion to terminate an unduly disruptive defendant’s self-representation. Id. at 834 n.46, 95 S.Ct. 2525. The Court has also held that a state may constitutionally impose a lawyer on a criminal defendant who is competent to stand trial but not to defend himself. Indiana v. Edwards, 554 U.S. 164, 167, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). Brugnara seeks to extend those principles, arguing that the district court was obligated to terminate his self-representation in light of his behavior at trial.

1.

Criminal defendants have a constitutional right under Faretta to defend themselves, as long as they knowingly and voluntarily waive their right to counsel. 422 U.S. at 835, 95 S.Ct. 2525. This is not a license to disrupt proceedings, however. Indeed, the Supreme Court has warned that a “trial judge may terminate self-representation by a defendant who deliberately engages in serious and obstructionist misconduct.” Id. at 834 n.46, 95 S.Ct. 2525. Although this language appears discretionary on its face, Brugnara insists that it required the district judge in this case to rescind his pro se status to preserve his right to a fair trial. We disagree.

First, if the Supreme Court meant to impose a termination requirement in Far-etta, the cited footnote was an odd way to do it. As mentioned, the Court used discretionary rather than mandatory language to explain trial judges’ authority in this respect, saying only that a judge “may terminate” an unruly defendant’s self-representation. Id. (emphasis added). A constitutional requirement surely would have warranted more imperative language. Furthermore, the Court followed up this limitation on the right to self-representation by proscribing ineffective assistance of counsel claims by pro se defendants. See id. It would make little sense to close one avenue of relief for a self-represented defendant’s poor lawyering only to open up another sub silentio. The footnote itself thus offers little support for Brugnara’s reading.

Second, Brugnara’s interpretation is directly in opposition to the reasoning underlying the Faretta right itself. The Supreme Court went to great lengths in that case to explain that a criminal defendant’s choice to represent himself must be respected even if he “conduct[s] his own defense ultimately to his own detriment.” Id. at 834, 95 S.Ct. 2525. Our court has likewise recognized that the right to self-representation “merits the same vigilant protection as other constitutional rights,” even though it “is a right that when exercised usually increases the likelihood of a trial outcome unfavorable to the defendant.” United States v. Gerritsen, 571 F.3d 1001, 1008 (9th Cir. 2009), quoting McKaskle v. Wiggins, 465 U.S. 168, 177 n.8, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984). Accordingly, “we cannot ignore or diminish the importance of this right merely because the defendant’s efforts at trial were unsuccessful. Nor may we second-guess, after the fact, whether the defendant would have been better served by counsel.” Id. at 1008-09.

The lesson of these cases is that a defendant cannot be denied his right to self-representation just because he may defend himself poorly or inadequately. See United States v. Flewitt, 874 F.2d 669, 673-74 (9th Cir. 1989) (holding that district court erred when it terminated self-representation because defendants “would not properly prepare for trial”); see also id. at 674 (“If [a defendant] chooses to defend himself, he must be content with the quality of that defense”). Brugnara’s position— that the district court should have stepped in to protect him fr.om his own poor judgment—is antithetical to this reasoning. Boorish and rebellious behavior is precisely what the Supreme Court had in mind when it prohibited pro se defendants from seeking reversals of their convictions on the basis of their own errors. See Faretta, 422 U.S. at 834 n.46, 95 S.Ct. 2525.

We therefore hold that Faretta means exactly what it says: a trial court is permitted, but not required, to terminate an incorrigible pro se defendant’s self-representation. The district court’s decision to allow Brugnara to represent himself “ultimately to his own detriment” did not violate his right to a fair trial. Id. at 834, 95 S.Ct. 2525.

2.

We turn now to Brugnara’s Edwards claim. In Edwards, the Supreme Court held that a state may constitutionally insist that a defendant be represented when he is competent to stand trial but not to defend himself. 554 U.S. at 167, 128 S.Ct. 2379. Animating that decision was a concern that permitting the defendant to represent himself when he lacked the competency to do so would “undercut[ ] the most basic of the Constitution’s criminal law objectives, providing a fair trial.” Id. at 176-77, 128 S.Ct. 2379. The Court also worried that allowing such a defendant to proceed pro se would undermine the trial’s public appearance of fairness. Id. at 177, 128 S.Ct. 2379.

Brugnara’s argument that Edwards imposes a duty to terminate self-representation is stronger than his Faretta claim. The problems just mentioned exist whenever an incompetent defendant represents himself, not just when a state insists that he be represented by counsel. Therefore, the fairness of a trial in substance and appearance hinges solely on whether a defendant is in fact competent to represent himself, without regard to whether the state takes action to impose counsel. We do not reach this issue, however, because Brugnara has not shown himself to be in the Edwards class of defendants who “suffer from severe mental illness to the point where they are not competent to conduct trial proceedings by themselves.” Id. at 178, 128 S.Ct. 2379.

At sentencing, the defense’s psychologist submitted a declaration in which he opined that Brugnara likely suffers from bipolar disorder, delusional disorder, and narcissistic personality disorder. At the same time, he admitted that Brugnara “demonstrate^] high-average, nearly superior intellectual ability.” This is a far cry from the defendant in Edwards, who suffered from schizophrenia, was more than once found incompetent to stand trial, and filed at least one undecipherable document that ostensibly described his “version” of the relevant events. Id. at 167-69, 179, 128 S.Ct. 2379. Brugnara also differs greatly from the defendant in United States v. Ferguson, 560 F.3d 1060 (9th Cir. 2009), where we reversed a conviction on Edwards grounds. In Ferguson, the defendant “did absolutely nothing” at trial and “submitted three nonsensical motions, did not object to the [pre-sentence report], and did not make any legal arguments” at sentencing. Id. at 1069.

Instead, this case more closely resembles United States v. Johnson, 610 F.3d 1138 (9th Cir. 2010), where we held that the defendants did not even “get through the door to making an Edwards claim at all, because they were clearly fully competent, albeit foolish, to represent themselves.” Id. at 1145. Like them, Brugnara “gave [an] opening statement ], ... examined and cross-examined witnesses, challenged jury instructions, and delivered [a] closing argument[ ] of significant length.” Id. at 1146. Throughout the trial, he asked coherent questions and made rational arguments—the only flaw was that his legal theory of the case was wrong. At most, Brugnara’s afflictions, such as they are, make him rude and impulsive; they do not rise to the level of a “severe mental illness” precluding competent self-representation. Edwards, 554 U.S. at 178, 128 S.Ct. 2379. The district court’s finding that Brugnara was competent to represent himself was therefore not clearly erroneous. See Johnson, 610 F.3d at 1145 (“We review the district court’s factual finding that the defendants were competent to represent themselves for clear error”).

Accordingly, the district court did not deny Brugnara a fair trial by allowing him to represent himself for the duration of the proceeding. This holding also disposes of his request to reverse the contempt citations, since he argues only that they were improper because he should not have been allowed to represent himself in the first place.

B.

Relatedly, Brugnara argues that he was entitled to a competency hearing at some point during proceedings in the district court. When deciding whether a district court should have held a competency hearing pursuant to 18 U.S.C. § 4241(a), we review the record “to see if the evidence of incompetence was such that a reasonable judge would be expected to experience a genuine doubt respecting the defendant’s competence.” United States v. Dreyer, 705 F.3d 951, 960 (9th Cir. 2013), quoting United States v. Marks, 530 F.3d 799, 814 (9th Cir. 2008).

A district court must hold a competency hearing, sua sponte, if necessary, when “there is reasonable cause to believe that the defendant may presently be suffering from a mental disease or defect rendering him mentally incompetent to the extent that he is unable to understand the nature and consequences of the proceedings agáinst him or to assist properly in his defense.” 18 U.S.C. § 4241(a). Such reasonable cause exists where there is “substantial evidence” in the record indicating that the defendant’s mental disease or defect renders him unable to perform either of these functions. Dreyer, 705 F.Bd at 961.

Brugnara contends that substantial evidence of his incompetency existed both during trial and at sentencing. His ability to understand the nature and consequences of the proceedings in this case is not in dispute. Accordingly, we focus only on whether there was evidence in the record that would cause a reasonable judge genuinely to doubt whether Brugnara could “assist properly in his defense.” 18 U.S.C. § 4241(a).

With respect to sentencing, Brug-nara relies primarily on the psychologist, who suggested that there were reasons to question Brugnara’s competence but never opined that Brugnara was in fact incompetent. Sentencing competency requires that the defendant be “able to understand the nature of the proceedings and participate intelligently to the extent participation is called for.” Dreyer, 705 F.3d at 961, quoting Chavez v. United States, 656 F.2d 512, 518 (9th Cir. 1981). This includes “participating in [the] ‘elementary right’ of allocution.” Id., quoting Boardman v. Estelle, 957 F.2d 1523, 1527 (9th Cir. 1992). At his sentencing, Brugnara provided a comprehensive, but rambling, allocution that can only be considered rational and intelligent. He also submitted a handwritten motion setting forth arguments regarding his Sentencing Guidelines calculations and identifying witnesses who could corroborate his explanation of an alleged threat against a prison nurse. By all appearances, Brug-nara was capable of assisting in his own defense at sentencing, and in fact did so. Consequently, the district court was not obligated to hold a competency hearing at that time.

The evidence of incompetency during trial is even scantier, since the subsequent psychological evaluation is minimally probative of Brugnara’s condition at trial. Cf. Williams v. Woodford, 384 F.3d 567, 608 (9th Cir. 2002) (“[W]e disfavor retrospective determinations of incompetence, and give considerable weight to the lack of contemporaneous evidence of a [defendant’s] incompetence to stand trial”). First, there was the advisory counsel’s pro forma suggestion on the third day of trial that he would move for a competency hearing if he were representing Brugnara. Although “defense counsel will often have the best-informed view of the defendant’s ability to participate in his defense,” Dreyer, 705 F.3d at 962, quoting Medina v. California, 505 U.S. 437, 450, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992), this particular recommendation has limited value because advisory counsel was not conducting the defense. He thus had little, if any, occasion to assess Brugnara’s ability to provide assistance.

The only other evidence bearing on Brugnara’s competency at trial was his disruptive conduct, which may well have been the product of strategic calculation rather than any mental defect. In a recorded jailhouse conversation with his mother, Brugnara made the following vow:

I’m going to bring up everything' in court. I’m going to bring up everything. And they may say, oh, you can’t hear that. But once it comes out of my mouth, it’s already out of my mouth, and the jury hears it. That’s the other reason they don’t want me to go pro se. I’m going to say everything I need to say, believe me.

We hold that a reasonable judge, faced with this record, would not have found it necessary to doubt Brugnara’s competency. On the contrary, the evidence reveals that Brugnara’s obstinate and pugnacious behavior was nothing more than a deliberate attempt to circumvent the court’s rules. This makes him a nuisance, not incompetent. The district court reached a similar determination, and did not err in doing so. There was therefore no need to hold a competency hearing sua sponte during trial.

VI.

Every time the district court gave Brug-nara any leeway, he took it and ran with it—literally, on one occasion. He turned what should have been a regular fraud prosecution into a sideshow by upbraiding witnesses, disparaging the judge and government attorneys, and constantly violating basic rules of evidence and procedure, all the while feigning ignorance of proper conduct. Now he points to several alleged errors—largely of his own making'—and urges us to vacate his convictions. But Brugnara’s bombastic journey through the courts ends here, because none of his arguments persuades us to reverse the jury’s verdict. He received a fair trial, and there is enough evidence to support his convictions. We therefore affirm.

AFFIRMED.


source: Caselaw Access Project

author: FISHER, Circuit Judge: HURWITZ, Circuit Judge,

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Karen B. OLSON, Defendant-Appellant.
    No. 15-30022
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted August 4, 2016 Anchorage, Alaska
    Filed May 15, 2017

      Glenda Kerry (argued), Law Office of Glenda J. Kerry, Girdwood, Alaska, for Defendant-Appellant.
    Retta-Rae Randall (argued), Assistant United States Attorney, United States Attorney’s Office, Anchorage, Alaska, for Plaintiff-Appellee.
    Before: RAYMOND C. FISHER, RICHARD A. PAEZ and ANDREW D. HURWITZ, Circuit Judges.
   Concurrence by Judge HURWITZ

OPINION

FISHER, Circuit Judge:

Karen Olson appeals her conviction for misprision of felony under 18 U.S.C. § 4. She was convicted of concealing and failing to notify authorities of her business partner’s submission of false statements to the United States Department of Agriculture Rural Development Program (USDA) in connection with a federal grant application. She challenges her conviction, arguing the government failed to prove she knew the conduct she concealed constituted a felony. We address her argument in two parts. First, we agree with Olson that, to secure a conviction under 18 U.S.C. § 4, the government must prove not only that the defendant knew the principal engaged in conduct that satisfies the essential elements of the underlying felony, but also that the defendant knew the conduct was a felony. See Flores-Figueroa v. United States, 556 U.S. 646, 652, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009) (“[Cjourts ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly’ as applying that word to each element.”). Second, applying that standard, we hold sufficient evidence supports the jury’s finding that Olson had the requisite knowledge here. We therefore affirm.

BACKGROUND

The USDA awarded a grant to Robert Wells to open a milk processing facility. The terms of the grant provided that certain equipment was to be purchased wholly or in part with grant funds, and that the USDA would hold a first lien position on any equipment purchased with grant money. Although the grant was in Wells’ name, he had an informal “handshake” partnership with Olson, a former Alaska executive director of the USDA Farm Service Agency who wrote Wells’ grant application. Wells described her as the “brains” behind the grant, and their informal partnership entitled her to 50 percent of the profits from the milk processing facility.

Around the same time, Kyle Beus received a separate USDA grant to establish an ice cream and cheese manufacturing facility. The paperwork for both Wells’ and Beus’ grant applications warned that anyone who made false, fictitious or fraudulent statements could be fined or imprisoned for up to five years.

Wells, Beus and Olson agreed to locate their two projects at the same facility. Unbeknownst to Wells and Olson, Beus instructed his contractor, Nether Industries, to inflate the value of certain dairy processing equipment—including a clean-in-place (CIP) system and a glycol chilling system—on papers submitted to the USDA for reimbursement. Beus also submitted invoices to Nether, allegedly for project expenses, so he could personally receive a portion of the grant money the USDA disbursed.

A year into the enterprise, Beus told Wells and Olson he had leased certain “technologically obsolete” pieces of equipment rather than purchase new equipment as agreed in the original grant application, including a “really cheap old glycol unit” and an “incomplete clean-in-place system.” As to some of this equipment, Olson informed the USDA there had been a change of plans that called for “leasing instead of outright purchasing some of the original smaller equipment.” She did not do so, however, with respect to the CIP system and glycol cooling system. The attached “Proposed Money Grant Expenditure” included a CIP system listed at $35,000 and a glycol cooling system listed at $50,000 when, in fact, those systems had been leased rather than purchased.

After the USDA disbursed the grant funds, Olson filed a final report with the department. It included a “Final List of Expenditures by Category and Completion” that once again falsely listed the purchase of a $35,000 CIP system and a $50,000 glycol cooling system.

Olson later became aware that Beus had been misappropriating grant funds by submitting false invoices to Nether Industries and receiving payments—which Olson described as “kickbacks”—in return. Olson also discovered Beus had improperly used grant funds to make a $71,000 personal investment in a milk jug manufacturer. An entry in her day planner around this time reveals that she knew Beus’ actions were improper. She wrote: “Began full-time work on financials/straightening out Kyle’s mess. Learning of questionable deals— Nether—Kyle spent $190,000 of our grant on others, so Nether way over budget. Also, Kyle misused our [ ] advance $ as his own stock purchases—!” Olson told the project’s office assistant she “could send [Beus’] ass to jail.” She wrote members of her board that “[t]he revelations of the past week have crystallized for me that [Beus’ agreement to co-locate the projects] was simply a way to divert our grant money into a grandiose plan that has not worked,” and that Beus “has put the entire dairy industry at risk for an ever-widening investigation closing off all loan sources and public goodwill.”

Olson was convicted after a jury trial of misprision of felony under 18 U.S.C. § 4. Her conviction was based on her knowledge that Beus, the principal, submitted false statements to the USDA in furtherance of his scheme to misappropriate grant funds in violation of 18 U.S.C. § 1014—a felony under federal law. Olson appeals.

STANDARD OF REVIEW

‘We review a question of statutory construction de novo.” United States v. Weitzenhoff, 35 F.3d 1275, 1283 (9th Cir. 1993). “Our review of the constitutional sufficiency of evidence to support a criminal conviction is governed by Jackson v. Virginia, which requires a court of appeals to determine whether, ‘after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.’ ” Unit ed States v. Nevils, 598 F.3d 1158, 1163-64 (9th Cir. 2010) (en banc) (quoting Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979)) (citation omitted).

DISCUSSION

I

The misprision of felony statute states:
Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States, conceals and does not as soon as possible make known the same to some judge or other person in civil or military authority under the United States, shall be fined under this title or imprisoned not more than three years, or both.

18 U.S.C. § 4 (emphasis added).

To establish misprision of felony, the government must prove beyond a reasonable doubt: “(1) that the principal ... committed and completed the felony alleged; (2) that the defendant had full knowledge of that fact; (3) that he failed to notify the authorities; and (4) that he took affirmative steps to conceal the crime of the principal.” Lancey v. United States, 356 F.2d 407, 409 (9th Cir. 1966) (alterations omitted) (quoting Neal v. United States, 102 F.2d 643, 646 (8th Cir. 1939)). Only the second element is at issue here.

To show a defendant has “knowledge of the actual commission of a felony cognizable by a court of the United States,” 18 U.S.C. § 4, the parties agree the government must prove at least that the defendant knew the principal engaged in conduct that satisfies the essential elements of the underlying felony. In other words, the defendant must “know the facts that make [certain] conduct fit the definition of the offense.” Elonis v. United States, — U.S. -, 135 S.Ct. 2001, 2009, 192 L.Ed.2d 1 (2015) (quoting Staples v. United States, 511 U.S. 600, 608 n.3, 114 S.Ct. 1793, 128 L.Ed.2d 608 (1994)). The parties disagree as to whether—and to what extent—the government must also prove the defendant knew such conduct was a felony. We conclude Olson has the stronger argument.

First, Olson’s construction is consistent with the general presumption that a mens rea requirement applies to each element of an offense. “Absent indication of contrary purpose in the language or legislative history of the statute,” Liparota v. United States, 471 U.S. 419, 425, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), we “ordinarily read a phrase in a criminal statute that introduces the elements of a crime with the word ‘knowingly1 as applying that word to each element,” Flores-Figueroa, 556 U.S. at 652, 129 S.Ct. 1886. See United States v. Williams, 553 U.S. 285, 294, 128 S.Ct. 1830, 170 L.Ed.2d 650 (2008) (applying a knowledge requirement to each subdivision in a statute in the absence of “grammar or structure enabling] the challenged provision or some of its parts to be read apart from the ‘knowingly’ requirement”); United States v. X-Citement Video, Inc., 513 U.S. 64, 77-78, 115 S.Ct. 464, 130 L.Ed.2d 872 (1994) (“[A]s a matter of grammar it is difficult to conclude that the word ‘knowingly’ modifies one of the elements in [the statute], but not the other.”). This “presumption in favor of a scienter requirement,” X-Citement Video, 513 U.S. at 72, 115 S.Ct. 464, “reflects the basic principal that ‘wrongdoing must be conscious to be criminal,’ ” Elonis, 135 S.Ct. at 2009 (quoting Morissette v. United States, 342 U.S. 246, 252, 72 S.Ct. 240, 96 L.Ed. 288 (1952)). As a general matter, “a defendant must be ‘blameworthy in mind’ before he can be found guilty.” Id. (quoting Morissette, 342 U.S. at 252, 72 S.Ct. 240).

In Liparota, for example, the statute at issue imposed criminal liability on “whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter or the regulations issued pursuant to this chapter.” Liparota, 471 U.S. at 420 n.1, 105 S.Ct. 2084 (alteration omitted) (quoting 7 U.S.C. § 2024(b)(1) (1985)). The evidence showed the defendant purchased food stamps from an undercover agent for less than face value. See id. at 421, 105 S.Ct. 2084. The government argued the statute required proof only that the defendant knew of his acquisition of the cards, not that the acquisition was unauthorized by law. See id. at 423, 105 S.Ct. 2084. The Supreme Court disagreed. Because it was not clear from the text of the statute which phrase or phrases Congress intended the knowledge requirement to modify, and because the legislative history contained nothing to clarify congressional purpose, the knowledge requirement applied to each phrase in the statute. The government was required to show the defendant knew purchasing food stamps for less than face value was unauthorized by law. See id. at 425, 105 S.Ct. 2084. Since Liparota, the Court has applied this presumption to a range of statutes. See, e.g., Flores-Figueroa, 556 U.S. at 657, 129 S.Ct. 1886 (applying a knowledge requirement to each phrase in the aggravated identity theft statute); Williams, 553 U.S. at 294, 128 S.Ct. 1830 (applying a knowledge requirement to all elements in a child pornography statute); X-Citement Video, 513 U.S. at 78, 115 S.Ct. 464 (applying a knowledge requirement to all elements in a statute criminalizing the exploitation of minors).

The same presumption applies here. First, as in Liparota, the text of the misprision statute alone does not make clear whether the knowledge requirement applies to each element. Compare 18 U.S.C. § 4 (“Whoever, having knowledge of the actual commission of a felony cognizable by a court of the United States.... ”), with 7 U.S.C. § 2024(b)(1) (1985) (“[W]hoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by this chapter.... ”). Putting aside the Flores-Figueroa presumption, the mental state in § 4 Could plausibly be read to modify only “actual commission” or both “actual commission” and “of a felony cognizable by a court of the United States.” Under Flores-Figueroa, however, we presume Congress intended the knowledge requirement to apply to both phrases, see 556 U.S. at 652, 129 S.Ct. 1886, and nothing in the text or legislative history negates the presumption that Congress so intended. The government has not pointed to anything suggesting Congress intended to penalize someone who did not know she was witnessing the commission of a felony. Accordingly, given the language of § 4 and the Flores-Figueroa presumption, the statute is best interpreted as requiring proof that, in addition to showing the defendant knew the principal engaged in conduct satisfying the essential elements of the underlying felony, the government must also show the defendant knew such conduct was a felony.

Second, even putting the presumption aside, the history of misprision also supports Olson’s construction. In England, before the advent of professional police forces, individual citizens bore the responsibility for combating crime. See Carl Wilson Mullís, III, Misprision of Felony: A Reappraisal, 23 Emory L.J. 1095, 1114 (1974). They had “a duty to raise the hue and cry and report felonies to the authorities.” Branzburg v. Hayes, 408 U.S. 665, 696, 92 S.Ct. 2646, 33 L.Ed.2d 626 (1972) (internal quotation marks omitted). See Hue and Cry, Black’s Law Dictionary (10th ed. 2014) (“The public uproar that, at common law, a citizen was expected to initiate after discovering a crime.”). A citizen who breached this duty could be charged with misprision. See Mullis, supra, at 1095. In this country, the First Congress enacted the American misprision statute as part of the Crimes Act of 1790, the current version of which is “functionally identical” to its predecessor. United States v. Phillips, 827 F.3d 1171, 1175 (9th Cir. 2016).

This context suggests Congress intended the misprision statute to apply solely to conduct the average person would understand as criminal and serious. As an English court has explained, requiring knowledge of the serious criminal nature of the underlying offense “disposes of many of the supposed absurdities, such as boys stealing apples, which many laymen would rank as a misdemeanour and no one would think he was bound to report to the police .... [MJisprision comprehends an of-fence which is of so serious a character that an ordinary law-abiding citizen would realise he ought to report it to the police.” Sykes v. Dir. of Pub. Prosecutions, [1962] A.C. 528 at 563.

The government argues in passing that United States v. Graves, 143 F.3d 1185 (9th Cir. 1998), as amended (June 4, 1988), supports its position. Graves, however, did not address the question we are considering here. Graves concerned the “accessory after the fact” statute, which states: “Whoever, knowing that an offense against the United States has been committed, receives, relieves, comforts or assists the offender in order to hinder or prevent his apprehension, trial or punishment, is an accessory after the fact.” Id. at 1187 (emphasis added) (quoting 18 U.S.C. § 3). The defendant was charged as an accessory (“charged offense”) to the crime of felon in possession of a firearm (“underlying offense”). See id. at 1186. The underlying offense, felon in possession of a firearm, contains two elements: first, possession of a weapon and second, a previous felony conviction. See id. at 1187. There was no evidence the defendant knew the principal was a felon, but the government argued it need not make such a showing. See id. We disagreed, holding a “defendant who is accused of being an accessory after the fact must be shown to have had actual knowledge of each element of the underlying offense.” Id. at 1189. The government was therefore required to prove the defendant knew that “the offender possessed a firearm” and that the offender “had previously been convicted of a felony.” Id.

Applied here, Graves stands only for the undisputed proposition that Olson must have had knowledge of the elements of the underlying offense—submission of false statements to the USDA. Graves does not address or support the government’s argument regarding the specified knowledge requirement of the charged offense here— misprision of a felony.

In sum, in light of Supreme Court precedent and relevant history, we hold-the misprision statute requires knowledge not only that the principal engaged in conduct that satisfies the essential elements of the underlying felony, but also that the underlying offense is a felony.

II

The question then becomes: What does it mean to know conduct constitutes a felony?

When a term used in a statute is defined by that statute or by “any other relevant statutory provision,” Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 132 S.Ct. 1997, 2002, 182 L.Ed.2d 903 (2012), we generally presume that definition applies to the statute’s use of the term. See Stenberg v. Carhart, 530 U.S. 914, 942, 120 S.Ct. 2597, 147 L.Ed.2d 743 (2000) (‘When a statute includes an explicit definition, we must follow that definition, even if it varies from that term’s ordinary meaning.”); see also Meese v. Keene, 481 U.S. 465, 484, 107 S.Ct. 1862, 95 L.Ed.2d 415 (1987) (“It is axiomatic that the statutory definition of the term excludes unstated meanings of that term.”); United States v. Lettiere, 640 F.3d 1271, 1274 (9th Cir. 2011) (“[There is a] well-settled principle that, for purposes of statutory interpretation, the language of the statute is the first and, if the language is clear, the only relevant inquiry.”).

This presumption is not absolute, however. If interpreting a term consistently with its statutory definition would, for instance, lead to “obvious incongruities” or would “destroy one of the major [congressional] purposes,” the statutory definition may yield to context. See Lawson v. Suwannee Fruit & S.S. Co., 336 U.S. 198, 201, 69 S.Ct. 503, 93 L.Ed. 611 (1949); see also Util. Air Regulatory Grp. v. EPA, — U.S. -, 134 S.Ct. 2427, 2441, 189 L.Ed.2d 372 (2014) (confirming that the presumption of consistent usage may yield to context).

Here, the term “felony” is defined as part of the federal criminal code as a crime punishable by death or a term of imprisonment exceeding one year. See 18 U.S.C. § 3559(a); see also Burgess v. United States, 553 U.S. 124, 130, 128 S.Ct. 1572, 170 L.Ed.2d 478 (2008) (“[T]he term ‘felony’ is commonly defined to mean a crime punishable by imprisonment for more than one year.” (citing 18 U.S.C. § 3559(a))). Although the misprision offense and the felony definition are in separate sections of the United States Code, they were included in the same statute at least twice. In 1909, Congress passed an act to “codify, revise, and amend the penal, laws of the United States.” See Criminal Code of 1909, ch. 321, 35 Stat. 1088, 1088 (preamble) (the “1909 Crime Act”). Along with a slightly modified version of the original misprision statute, see id. § 146, 35 Stat. at 1114, the 1909 Crime Act included, apparently for the first time, a statutory definition for the term “felony,” see id. § 335, 35 Stat. at 1152 (“All offenses which may be punished by death, or imprisonment for a term exceeding one year, shall be deemed felonies.”). The 1948 Crimes and Criminal Procedure Act (the “1948 Crime Act”), enacted to “revise, codify, and enact into positive law, Title 18 of the United States Code, entitled ‘Crimes and Criminal Procedure,’ ” Crimes and Criminal Procedure Act, Pub. L. No. 80-772, 62 Stat. 683, 683 (1948) (preamble), similarly included versions of both provisions. See id. §§ 1, 4, 62 Stat. at 684. Indeed, the 1948 Crime Act actually included the felony definition and the misprision offense on the very same page. See id.

This is a case, therefore, in which Congress has adopted a statute using a term— “felony”—and in the same statute adopted a definition that presumptively applies. Moreover, it does not appear the presumption is rebutted by context. Applying the statutory definition, for instance, neither leads to incongruities nor destroys Congress’ purposes. See Lawson, 336 U.S. at 201, 69 S.Ct. 503. The drafting history of the 1909 and 1948 Crime Acts supports this conclusion. Before 1909, the term “felony” lacked a uniform definition. A Senate Report on the 1909 Crime Act explained that the term “felony” had an “indefinite classification,” resulting in its being “indiscriminately applied.” S. Rep. No. 60-10, at 12 (1908). The report therefore underscored the need for a uniform definition, which would “characterize the whole system rather than pertain to any particular part of it.” Id. Far from “destroying] one of the major [congressional] purposes,” see Lawson, 336 U.S. at 201, 69 S.Ct. 503, incorporating § 3559’s definition into the misprision statute furthers Congress’ intent to bring a measure of uniformity to the criminal code.

We therefore hold the government must prove the defendant knew the underlying offense was punishable by death or more than one year in prison. The defendant need not know the precise term of imprisonment authorized by law, but at least she must know the potential punishment exceeds one year in prison.

Ill

In Olson’s case, there was sufficient evidence to support a jury’s finding that she knew submitting false statements to the USDA was punishable by a sentence of incarceration exceeding one year. See Nevils, 598 F.3d at 1163-64. The USDA grant form Olson completed on behalf of Wells explicitly warned that any individual who submitted false statements to the USDA could be imprisoned up to five years. Olson had seen similar warnings “many times,” and the jury could have inferred Olson’s sophistication from her experience as executive director of the USDA Farm Service Agency. This evidence was sufficient for a reasonable jury to find Olson knew Beus’ crime was punishable by more than a year in custody.

CONCLUSION

We hold 18 U.S.C. § 4 requires the government to prove the defendant knew the principal engaged in conduct that satisfies the essential elements of the underlying felony and that the defendant knew such conduct was a felony. To establish the latter, the government must prove the defendant knew the offense was punishable by death or a term of imprisonment exceeding one year. Sufficient evidence supports that finding here. For the reasons stated in this opinion and in a concurrently filed memorandum disposition, we affirm Olson’s conviction.

AFFIRMED.

HURWITZ, Circuit Judge,

concurring in part and concurring in the result:

This case does not turn on whether the government must prove in a misprision prosecution under 18 U.S.C. § 4 that the defendant knew the underlying offense was a felony. As the majority correctly concludes, the evidence at trial sufficed for a misprision conviction even if the government bears that burden of proof.

The majority’s interpretation of the statute may be correct. But, I would leave such analysis for another day, in a case in which it matters to the outcome. See Whitehouse v. Ill. Cent. R. Co., 349 U.S. 366, 372-73, 75 S.Ct. 845, 99 L.Ed. 1155 (1955) (“These are perplexing questions. Their difficulty admonishes us to observe the wise limitations on our function and to confine ourselves to deciding only what is necessary to the disposition of the immediate case.”); PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring in the judgment) (noting “the cardinal principle of judicial restraint” that “if it is not necessary to decide more, it is necessary not to decide more”).

      . We reject Olson's remaining challenges in an unpublished memorandum disposition filed concurrently with this opinion.

      . Misprision has become a little used and much maligned criminal charge. England eliminated the offense a few years after the Sykes decision. See Mullis, supra, at 1100-01. American commentators have urged Congress to do the same, arguing the crime has outlived its usefulness in light of modern methods of law enforcement. See, e.g., E. Lee Morgan, Misprision of Felony, 6 S.C. L. Q. 87, 95 (1953-54); Mullis, supra, at 1111 n.92 (listing commentators).

      . Both parties invoke United States v. White Eagle, 721 F.3d 1108 (9th Cir. 2013), in support of their respective positions. This case has no bearing on our analysis here because it did not address the knowledge requirement of the misprision statute. See id. at 1119-20 (addressing only the "failure to notify the authorities” and the "affirmative step to conceal” elements).

      .Olson asks us to go further by holding the government must show the defendant knew the relevant conduct was a felony under federal law, based on the statute's language stating "of a felony cognizable by a court of the United States." 18 U.S.C. § 4 (emphasis added). We decline to do so. "The concept of criminal intent does not extend so far as to require that the actor understand not only the nature of his act but also its consequence for the choice of a judicial forum.” United. States v. Feola, 420 U.S. 671, 685, 95 S.Ct. 1255, 43 L.Ed.2d 541 (1975). The requirement that the felony be cognizable by a court of the United States was included in the statute to state the foundation for federal jurisdiction. See United States v. Howey, 427 F.2d 1017, 1018 (9th Cir. 1970). “A defendant’s knowledge of the jurisdictional fact is irrelevant,” id., as has been held in numerous cases interpreting analogous statutory provisions. See, e.g., United States v. Felix-Gutierrez, 940 F.2d 1200, 1206-07 (9th Cir. 1991) (holding a defendant charged with being an accessory after the fact need not know the principal crime was one against the United States despite the presence of such language in the statute); Feola, 420 U.S. at 687, 95 S.Ct. 1255 (holding a defendant charged with conspiracy need not know his conduct violated federal law despite the statute's prohibition on conspiring to commit an offense against the United States).

      . Knowledge is ordinarily a subjective standard, and the parties do not argue the rule is otherwise here. See, e.g., United States v. Twine, 853 F.2d 676, 680 (9th Cir. 1988) ("We drew our conclusion in the face of Congress’ use of the terms 'knowingly and willfully,’ words which the Model Penal Code defines in a subjective manner.”); United States v. Jewell, 532 F.2d 697, 707 (9th Cir. 1976) (en banc) (Kennedy, J., dissenting) ("[Kjnowl-edge [is] a matter of subjective belief, an important safeguard against diluting the guilty state of mind required for conviction.”).

      . As to this issue, Olson raises only a sufficiency of the evidence claim. Olson does not contest the adequacy of the misprision jury instruction apart from its failure to include a unanimity instruction—an issue we address in a concurrently filed memorandum disposition. Nor did she proffer a jury instruction at trial clarifying this point of law. We therefore assume the jury was properly instructed on misprision and address solely Olson’s argument that there was insufficient evidence of her knowledge. In future cases, of course, a defendant in Olson's position could request an instruction requiring the government to prove that she knew the underlying offense was punishable by more than one year in prison. The instructions given here did not specifically address this issue, but Olson did not challenge the instruction on appeal, so we need not address whether the failure to give such an instruction was erroneous.


author: W. FLETCHER, Circuit Judge:

text:
    ALLIANCE FOR THE WILD ROCKIES, Plaintiff-Appellant, v. Paul BRADFORD, Kootenai National Forest Supervisor; Faye Krueger, Regional Forester of Region One of the U.S. Forest Service; United States Forest Service, an agency of the U.S. Department of Agriculture; U.S. Fish and Wildlife Service, an agency of the U.S. Department of Interior, Defendants-Appellees.
    No. 14-35786
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 7, 2016 Seattle, Washington
    Filed May 17, 2017

      Timothy M. Bechtold (argued), Bechtold Law Firm, Missoula, Montana, for Plaintiff-Appellant.
    Thekla Hansen-Young (argued), John P. Tustin, Robert P. Stockman, and Andrew C. Mergen, Environment & Natural Resources Division, United States Department of Justice, Washington, D.C.; Dana Jacobsen, Office of the Regional Solicitor, United States Department of the Interior, Denver, Colorado; Alan Campbell, Office of the General Counsel, United States Department of Agriculture, Missoula, Montana; for Defendants-Appellees.
    Julie A. Weis, Haglund Kelley LLP, Portland, Oregon, for Amicus Curiae Koo-tenai Tribe of Idaho.
    Before: WILLIAM A. FLETCHER, RAYMOND C. FISHER, and N. RANDY SMITH, Circuit Judges.
   OPINION

W. FLETCHER, Circuit Judge:

Alliance for the Wild Rockies (“Alliance”) brings suit under the National Forest Management Act (“NFMA”), the Endangered Species Act (“ESA”), and the National Environmental Policy Act (“NEPA”) to enjoin the U.S. Forest Service (“Forest Service”) from constructing 4.7 miles of new roads in connection with a Forest Service project in the Kootenai National Forest. Alliance’s claims are premised on the argument that the new roads will create a “net permanent increase[ ] in linear miles of total roads” in violation of the Access Amendments to the Kootenai National Forest Plan (“Forest Plan”). We hold that the 4.7 miles of roads at issue will not violate the Forest Plan because they will be blocked to prevent motorized access upon completion of the project.

I. Background

In 2013, the Forest Service approved the Pilgrim Creek Timber Sale Project (“Pilgrim Project” or “Project”) in Montana’s Kootenai National Forest. The purpose of the Project is to “maintain and increase forest resilience to insects, disease and disturbance by increasing age class diversity in lodgepole pine stands, improving growing conditions and favoring root disease resistant species ..., and improving big game forage production while providing for the local economy through commercial timber harvest.” The Project requires the construction of approximately 4.7 miles of new roads, to be used by Forest Service personnel and government contractors during Project implementation. Upon completion of the Project, the Forest Service will close the new roads to all motorized travel with “an earthen barrier, rocks, or other barrier.”

The Pilgrim Project implicates several statutes. NFMA is implicated because it requires that the Project be consistent with the Kootenai Forest Plan. See 16 U.S.C. § 1604(i); Native Ecosystems Council v. Weldon, 697 F.3d 1043, 1056 (9th Cir. 2012) (“NFMA requires that the proposed site-specific actions be consistent with the governing Forest Plan.”). The ESA is implicated because the Forest Plan incorporates portions of the Grizzly Bear Recovery Plan, developed after consultation with the U.S. Fish and Wildlife Service (“Fish and Wildlife Service”). See 16 U.S.C. § 1536(a) (setting forth consultation requirements when a threatened species is present in a project area). Finally, NEPA is implicated because it requires the preparation of an Environmental Impact Statement (“EIS”) for agency actions “significantly affecting the quality of the human environment.” 42 U.S.C. § 4332(C).

In 1975, the Fish and Wildlife Service listed the grizzly bear as “threatened” under the ESA, and in 1993 it promulgated a revised Grizzly Bear Recovery Plan (“Recovery Plan”). The Recovery Plan designates as “recovery zones” areas in the Kootenai National Forest in which there is a significant likelihood of grizzly bear presence. The Recovery Plan prescribes forest management measures within these zones to protect grizzly bears and to facilitate their survival and reproduction. The Recovery Plan also designates areas outside the recovery zones that grizzly bears sometimes frequent, called “Bears Outside of Recovery Zones” or “BORZ polygons.” The Recovery Plan prescribes less protective management measures in BORZ polygons than in recovery zones. The Pilgrim Project is located in the Clark Fork BORZ polygon of the Kootenai National Forest.

In 2011, the Kootenai Forest Plan was amended by the Forest Plan Amendments for Motorized Access Management within the Selkirk and Cabinet-Yaak Grizzly Bear Recovery Zones (“Access Amendments”). The Record of Decision (“ROD”) for the Access Amendments established motorized-vehicle access restrictions in recovery zones and BORZ polygons. In developing the Access Amendments, the Forest Service consulted with the Fish and Wildlife Service under Section 7(a) of the ESA. See 16 U.S.C. § 1536(a); 50 C.F.R. § 402.14(a). As part of that process, the Fish and Wildlife Service issued a Biological Opinion containing an Incidental Take Statement. See 16 U.S.C. § 1532(19) (defining “take”); see also Ariz. Cattle Growers’ Ass’n v. U.S. Fish & Wildlife, 273 F.3d 1229, 1242 (9th Cir. 2001) (explaining 50 C.F.R. § 402.14(g)(7), (i)(l), which require the Fish and Wildlife Service to issue incidental take statements in certain circumstances). The Statement permitted incidental taking of grizzly bears so long as the total linear miles of roads in each BORZ polygon remained below a baseline limit specific to that BORZ polygon: “In the BORZ, permanent increases in linear miles of open road and/or permanent increases in linear miles of total road beyond the standards in Table 4 of this biological opinion will result in levels of take that exceed the amount of incidental take we anticipate here.” In compliance with the Incidental Take Statement, Standard 11(B) of the Access Amendments prohibits any net permanent increase in permanent roads in a BORZ polygon. The standard specified in Table 4 for the Clark Fork BORZ polygon is 256.1 “total linear miles of roads.”

In February 2013, in connection with the preparation of the Project’s EIS, the Forest Service asked the Fish and Wildlife Service to review the proposed Project. The Fish and Wildlife Service responded by letter in March 2013, writing that “the proposed action is not likely to adversely affect the threatened grizzly bear ... in ways other than those analyzed in the 2011 biological opinion [prepared in connection with the Access Amendments].” The letter described the proposed new roads as follows: “Approximately 4.7 miles of new, permanent road would be constructed and closed with a permanent closure device (earth berm, rocks, reclamation) post-harvest.” The Fish and Wildlife Service concluded, “The proposed project would be in compliance with the standards provided in the Access Amendment[s].”

In May 2013, the Forest Service issued an ROD choosing Alternative 3 of the EIS. The ROD provided:

Under Alternative 3, [there will be] 4.7 miles of new road construction.... Access to new construction ... would be controlled post treatment by gates or other closure devices. These closure devices allow for motorized access sometime in the future, which may help fire suppression and stand-tending operations such as pre-commercial thinning.

II. Prior Proceedings

Alliance brought suit in October 2013, challenging the Pilgrim Project under NFMA, the ESA, and NEPA. Alliance contended, inter alia, that the Project would create a net increase in linear miles of total roads in violation of Standard 11(B) of the Access Amendments. Alliance contended that the Project would therefore (1) violate NFMA by failing to comply with the Access Amendments to the Forest Plan; (2) violate the ESA by failing to comply with the Incidental Take Statement’s mandate incorporated into the Access Amendments; and (3) violate NEPA by incorrectly stating in the EIS and ROD that the Project will comply with the Access Amendments.

Focusing on the above-quoted statement from the 2013 ROD, the district court found that the ROD “indicates that ... upon completion of Project activities the new roads will not be appropriately closed with a permanent closure device as required by Standard 11(B).” The court held that, as approved in the ROD, the Project violated NFMA, the ESA, and NEPA. It enjoined the Project pending preparation of a supplemental EIS.

In July 2014, the Forest Service issued a Clarification/Amendment of the ROD. The Clarification/Amendment stated, “It was, and remains, our intent that all new permanent roads constructed for the project will be closed with a permanent closure device consistent with the Grizzly Bear Access Amendment and Kootenai Forest Plan.” The Clarification/Amendment amended several sections of the 2013 ROD to make this intent clear. For example, the following sentences were added to the ROD: (1) “All new permanent road segments constructed for the project will be made impassable to motorized vehicles by installation of an earthen barrier, rocks, or other barrier.” (2) “After completion of ha[r]vest-related activities, ... new roads constructed for the project will be made impassable to motorized vehicles through installation of an earthen barrier, rocks, or other barrier.”

After issuing the Clarification/Amendment, the Forest Service moved to lift the district court’s injunction. The court granted the motion, holding that the Clarification/Amendment made clear that the Pilgrim Project will comply with Standard 11(B) of the Access Amendments.

Alliance appeals. We have jurisdiction under 28 U.S.C. § 1291, and we affirm.

III. Standard of Review

We review de novo the district court’s decision to grant summary judgment. Lands Council v. Powell, 395 F.3d 1019, 1026 (9th'Cir. 2005). We review the Forest Service’s compliance with NFMA, the ESA, and NEPA under the Administrative Procedure Act (“APA”). Great Old Broads for Wilderness v. Kimbell, 709 F.3d 836, 846 (9th Cir. 2013); San Luis & Delta-Mendota Water Auth. v. Jewell, 747 F.3d 581, 601 (9th Cir. 2014). We may set aside an agency action under the APA if it is “arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). “[T]he Forest Service’s interpretation and implementation of its own forest plan is entitled to substantial deference.” Native Ecosystems Council, 697 F.3d at 1056. In the face of ambiguity, we “defer to the Forest Service’s reasonable interpretation of the Forest Plan’s requirements.”1 Ecology Center v. Castaneda, 574 F.3d 652, 661 (9th Cir. 2009).

IV. Discussion

The sole question presented on appeal is whether the barriered 4.7 miles of new roads count toward “linear miles of total roads” under Standard 11(B) of the Access Amendments. If they count, Alliance prevails on its claims under NMFA, the ESA, and NEPA. If they do not, Alliance loses on all these claims.

Alliance does not dispute that the Forest Service has committed to use a berm, barrier, or similar closure device to close the 4.7 miles of new roads to motorized access after the Project is completed. However, it argues that roads closed in this manner count-as part of the linear miles of total roads. Thus, according to Alliance, the newly constructed roads will result in a “net permanent increase[ ] in linear miles of total roads” in violation of Standard 11(B).

In relevant part, Standard 11(B) provides:

B. The Forest shall ensure no net permanent increases in linear miles of total roads in any individual BORZ area above the baseline conditions identified in Table 16 [identical to Table 4 in the Incidental Take Statement],
1. Temporary increases (not off-set) in linear miles of total roads are acceptable under the following conditions:
a. Newly constructed roads would be effectively gated and would be restricted with a CFR closure clarifying they are not open for public use.
b. These roads shall be closed immediately upon completion of activities requiring use of the road.... Roads must be closed with a berm, guardrail or other measure that effectively prevents motorized access, and put in a condition such that a need for motorized access for maintenance is not anticipated for at least 10 years.
c. Upon completion of a land management project, linear miles of total roads would be returned to or below the baseline levels contained in Table 16.

We hold that it was not arbitrary and capricious for the Forest Service to conclude that roads closed to motorized access by berms or barriers do not count toward “linear miles of total roads.” Standard 11(B) expressly permits “[tjemporary increases in linear miles of total roads” so long as the roads are “closed immediately upon completion of activities” with a “berm, guardrail or other measure that effectively prevents motorized access.” This language strongly suggests that roads closed in such a manner do not fall within the “linear miles of total roads” metric. Alliance has proffered arguments that support a different reading of Standard 11(B), but none renders the Forest Service’s interpretation unreasonable. See Ecology Center, 574 F.3d at 661 (explaining that, in the face of ambiguity, “we defer to the Forest Service’s reasonable interpretation of the Forest Plan’s requirements”); Native Ecosystems Council, 697 F.3d at 1056 (“[T]he Forest Service’s interpretation and implementation of its own forest plan is entitled to substantial deference.”).

At oral argument, counsel for Aliance suggested that the Forest Service’s contemplated berms will not effectively prevent motorized use of the new roads because all-terrain vehicles can circumvent the berms and access the roads. Standard 11(B) permits temporary increases in linear miles of total roads only if the roads are later “closed with a berm, guardrail or other measure that effectively prevents motorized access.” (Emphasis added.) Aliance has not pointed to any evidence to refute the Forest Service’s assertion that the berm will effectively prevent motorized use. We therefore take the Forest Service at its word, with the understanding that any closure that fails to effectively prevent motorized access also fails to comply with Standard 11(B) of the Access Amendments.

Aliance’s earlier challenge to the Pilgrim Project, as approved by the ROD, was properly sustained by the district court because the ROD required closure only by gates, and allowed access to the road for maintenance and other purposes. Such closure clearly did not comply with the manner and degree of closure required by Standard 11(B). However, the Forest Service brought the Project into compliance with Standard 11(B) when its Clarification/Amendment amended the ROD to provide that closure of the 4.7 linear miles of new road would be done as required by Standard 11(B).

V. Conclusion

Because the Forest Service’s interpretation of its own Forest Plan was reasonable, Aliance cannot prevail on its NFMA, ESA, and NEPA claims.

AFFIRMED.