text:
    UNITED STATES of America, Plaintiff-Appellee v. James Stephen BRADEN, Jr., Defendant-Appellant
    No. 15-3958
    United States Court of Appeals, Eighth Circuit.
    Submitted: September 21, 2016
    Filed: December 29, 2016

      Warren Hoff, Law Office of Warren Hoff, St. Louis, MO, for appellant.
    John N. Koester, Jr., Asst. U.S. Atty., Cape Girardeau, MO (Richard G. Callahan, U.S. Atty., St. Louis, MO, on the brief), for appellee.
    Before COLLOTON, MELLOY, and SHEPHERD, Circuit Judges.
   MELLOY, Circuit Judge.

James Braden, Jr. was convicted by a jury of one count of possession with the intent to distribute marijuana, in violation of 21 U.S.C. § 841(a)(1), and one count of possession of a firearm in furtherance of a drug trafficking crime, in violation of 18 U.S.C. § 924(c). Braden was sentenced to 75 months’ imprisonment. Braden appeals, arguing the district court erred by failing to suppress a statement he made to officers when the officers arrived to. execute a search warrant and before he was given Miranda warnings. Braden also argues the district court erred by finding that the warrant was supported by probable cause. Finally, Braden argues the district court erred by denying a motion to set aside the verdict due to an officer’s testimony that drug cases often involve the presence of firearms. We affirm.

I.

On June 17, 2014, Braden’s twelve-year-old son went to the Hayti, Missouri police department to report that his father, Bra-den, was a drug dealer and was in possession of marijuana and firearms. Officer Shane Wiseman interviewed the boy. Bra-den’s son provided detailed information about where his father stored the marijuana and firearms, including a map showing the layout of the home and where the items were located.

After interviewing the boy, Officer Wise-man contacted the Pemiscot County Prosecuting Attorney’s Office, which directed Officer Wiseman to contact the Southeast Missouri Drug Task Force. Officer Wise-man contacted Task Force Officer Eddie Holloway. Officer Holloway came to the police department, and Braden’s son voluntarily repeated the information he had provided to Officer Wiseman.

Following his interview with Braden’s son, Officer Holloway prepared an affidavit for a search warrant. The affidavit included detailed information about the home and the evidence to be seized. The affidavit identified the source of the information as a confidential juvenile, informant and described Officer Holloway’s belief as to the reliability of the information. Though the affidavit did not indicate the relationship between the informant and Braden, Officer Holloway informed the judge reviewing the affidavit that the confidential source was Braden’s son. The judge found that the affidavit established probable cause and issued a search warrant.

Officer Holloway,- Officer Wiseman, and other officers executed the search warrant. Braden’s son, who was outside when the-officers arrived, went inside to get Braden. Braden met the officers outside, was placed in handcuffs, and was informed that the officers had a search warrant. Without giving Braden Miranda warnings, Officer Wiseman asked if there was marijuana in the house. Braden responded that there was “weed in the house, but you’ll have to go find it.”

As Officer Holloway approached the home, he was able to smell marijuana. Inside the home, the officers searched a closet in Braden’s bedroom, where they found a storage container with approximately 12 pounds of marijuana. Near the storage container, the officers found a Ruger 9mm semi-automatic 'pistol and $11,000 in cash. On a shelf in the closet, officers found a box of 9mm ammunition and a box of .22 caliber ammunition. On and inside a dresser in Braden’s bedroom, the officers found a bowl with marijuana residue, two digital weighing scales, and three gallon-sized bags with marijuana. In the kitchen, the officers found a loaded .22 caliber pistol and a notebook with entries consistent with drug transactions. Finally, the officers found an unloaded .22 caliber rifle in a storage room. When, officers searched Braden’s person, they found $1,770 in cash.

After he was charged, Braden moved to suppress the evidence resulting from the search of his home, arguing that the search was unreasonable. The magistrate judge recommended denying the motion, finding that the search warrant was supported by probable cause or, alternatively, that even if probable cause were lacking, the officers acted in objective good-faith reliance on the validity of the search warrant. Braden did not object to the magistrate judge’s findings, and the district court subsequently adopted the magistrate judge’s recommendation.

At trial, Officer Holloway testified as both an expert and a lay witness. Officer Holloway testified about the items recovered from Braden’s home and about his experience in the field as a narcotics detective. Braden did not object to Officer Holloway’s status as an expert. During his testimony, Officer Holloway stated that “Ninety-nine percent of all drug dealers carry guns with them to protect their dope and money.” During cross-examination, he clarified that “99 percent somewhere 6mm the line" involve firearms. Braden did not object to this testimony.

After trial, Braden filed a motion to set aside the verdict, arguing'that Officer Holloway gave false and misleading testimony when he testified that “ninety-nine percent” of drug dealers carry guns. The district court denied the motion, finding that Officer Holloway’s testimony was not misleading because, on cross-examination, he qualified his statement by saying that “somewhere down the line,” drug transactions involve firearms. Braden was subsequently sentenced to 75 months’ imprisonment.

II.

Braden makes three arguments on appeal. First, Braden argues the district court erred by failing to suppress Braden’s statement to the officers outside his home suar sponte. Second, Braden argues the district court erred by denying his motion to suppress the evidence seized during the search of his home. Finally, Braden argues Officer Holloway’s testimony was false and misleading and should not have been allowed at trial.

A. Braden’s Incriminating Statement

Braden argues that his response to Officer Wiseman’s question that there was “weed in the house” should have been suppressed because he was not informed of his Miranda rights, Braden’s motion to suppress did not address this statement, and he made no objection to Officer Holloway’s testimony regarding his statement. Thus, Braden did not properly preserve this issue for appeal. See United States v. Udey, 748 F.2d 1231, 1240 (8th Cir. 1984). As a result, we review this claim only for plain error. Fed. R. Crim. P. 52(b); Udey, 748 F.2d at 1240.

“To obtain relief under a plain-error standard of review, the party seeking relief must show that (1) there was ah error, (2) the error is- clear or obvious under current law, (3) the eiror affected the party’s substantial rights, and (4) the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” United States v. Iceman, 821 F.3d 979, 983-84 (8th Cir. 2016) (quoting United States v. Melton, 738 F.3d 903, 905 (8th Cir. 2013)). An error must be prejudicial to have affected a party’s substantial rights. United States v. Callahan, 800 F.3d 422, 426 (8th Cir. 2015). Braden has the burden to prove that the error “affected the outcome of the district court proceedings.” Id. (quoting United States v. Olano, 507 U.S., 725, 734, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993)).

Braden has not met his burden of proving that the outcome of his trial would have been different if his statement to the officers had been suppressed. Braden argues that because his statement was admitted, he was unable to present a defense that the marijuana did not belong to him and that he did not have knowledge of thó drugs. However, there was overwhelming evidence presented at trial by which a jury could convict Braden. This evidence includes the fact that Braden was the only person in the home when the officers executed the search warrant and the officers were able to smell the marijuana ■ before they entered. Further, the storage container with 12 pounds of marijuana was located in a closet with men’s clothing inside Braden’s bedroom. The bowl with marijuana residue and one of the scales-was located on the dresser in Braden’s bedroom, and the second scale and three gallon-sized bags of marijuana were in a drawer of that dresser that contained men’s clothing and underwear. Based on this evidence, Bra-den has not shown that the outcome of his trial would have been different if his statement had been suppressed. Thus, the. district court’s failure to suppress Braden’s statement sua sponte was not plain error.

B. Invalid Warrant

Before trial, Braden moved to suppress the evidence discovered in his home as having been discovered pursuant to an invalid warrant. The district court denied the motion and Braden appeals. Braden argues that the search warrant was invalid because it was not supported by probable cause. “This Court reviews the facts supporting a district court’s denial of a motion to suppress for clear error and reviews its legal conclusions de novo.” United States v. Cotton, 782 F.3d 392, 395 (8th Cir. 2015). “This court will affirm the district court’s denial of a motion to suppress evidence unless it is unsupported by substantial evidence, based on an erroneous interpretation of applicable law, or, based on the entire record, it is clear a mistake was made.” United States v. Hogan, 539 F.3d 916, 921 (8th Cir. 2008) (quoting United States v. Annis, 446 F.3d 852, 855 (8th Cir. 2006)).

The Fourth Amendment requires that a warrant be supported by probable cause. U.S. Const. amend. IV. Probable cause exists when, “given all the circumstances set forth in the affidavit ..., including the ‘veracity* and ‘basis of knowledge’ of persons supplying hearsay information, there is a fair probability that contraband or evidence of. a crime will be found in a particular place.” Illinois v. Gates, 462 U.S. 213, 238, 103 S.Ct. 2317, 76 L.Ed.2d 527 (1983).

Officer Holloway’s affidavit provided sufficient probable cause to issue a warrant to search Braden’s home. The informant’s basis of knowledge was particularly strong that officers would find marijuana and firearms in the home because the informant lived in the home and observed Braden with the marijuana and firearms. See United States v. Solomon, 432 F.3d 824, 827 (8th Cir. 2005); United States v. Ellison, 793 F.2d 942, 946 (8th Cir. 1986) (noting that the informants’ reliability was supported by their “first-hand knowledge of the matters and objects described in the affidavit by their having lived ... in the compound”). Additionally, the informant provided a detailed description of the contraband, including where it was located within the home. See Solomon, 432 F.3d at 827; United States v. Jackson, 898 F.2d 79, 81 (8th Cir. 1990) (finding probable cause based, in part, on “the richness and detail of a first hand observation” of an informant’s tip).

Braden argues that it was unreasonable for the judge reviewing the warrant application to issue the search warrant on the basis, of information supplied by his son. Braden suggests that the probable cause determination should consider undesirable consequences that may result from the execution of a. warrant. Specifically, Bra-den. argues that the judge should have considered the fact that the informant was a juvenile and the suspect’s son. However, probable cause requires only a showing that “there is a fair probability that contraband or evidence of a crime will be found in a particular place.” Gates, 462 U.S. at 238, 103 S.Ct. 2317. That the informant was Braden’s son does not disqualify the son as a credible informant or disprove the existence of probable cause. And, because Braden’s son provided detailed information to the officers in person, the officers could assess his credibility. Solomon, 432 F.3d at 827-28 (noting that the informant was reliable because she met with law enforcement, the officers were able to assess her credibility because the informant gave the tip in person, and the informant could be held responsible if the allegations were false). Because the affidavit demonstrated the informant’s reliability and basis of knowledge and included specific details about the evidence to be seized, it created a fair probability that evidence would be found. Thus, the search warrant was' supported by probable cause and the district court did not err by denying Braden’s motion to suppress.

C. Officer Holloway’s Testimony

Finally, Braden argues that the district court erred by allowing Officer Holloway’s testimony regarding the correlation between firearms and drugs. Officer Holloway testified that, in drug transactions, “99 percent somewhere down the line” involve firearms. Braden did not object to this testimony at trial. After trial, Braden filed a motion to set aside the verdict based on false and misleading testimony, claiming that Officer Holloway’s testimony was false because Officer Holloway had previously arrested three people for possession of drugs with intent to distribute where no gun was found on the scene. On appeal, it is unclear whether Braden is appealing the admission of Officer Holloway’s testimony or the denial of Braden’s motion to set aside the verdict.

If Braden is appealing the admission of the testimony, his claim is reviewed for plain error, as he did not object to the testimony at trial. Braden has not met his burden of proof under the plain error test, as set forth above. First, the admission of the testimony was not an error. The fact that not all drug arrests produce firearms does not mean that Officer Holloway’s testimony was false. Rather, it is consistent with the fact that Officer Holloway did not say that all drug arrests produce firearms but, rather, that somewhere in the chain of drug trafficking, firearms are involved. “We have repeatedly held that ‘a district court has discretion to allow law enforcement officials to testify as experts concerning the modus operandi of drug dealers in areas concerning activities which are not something with which most jurors are familiar.’” United States v. Gill, 513 F.3d 836, 847 (8th Cir. 2008) (quoting United States v. Urbina, 431 F.3d 305, 311 (8th Cir. 2005)). “Further, we have specifically found no abuse of discretion in admitting expert testimony from drug agents regarding the use of firearms as tools of the drug trade.” Id.

The testimony Braden challenges is similar to the testimony challenged in Gill. In Gill, a DEA agent testified to the link between firearms and drug trafficking based on the agent’s five years of experience and his involvement in more than one hundred drug investigations. Id. In the present case, Officer Holloway testified as both an expert and lay witness. He had thirteen years of experience as a law enforcement officer, including eight years specializing as a narcotics detective. Bra-den asserts that, in addition to being false, there was a gap between Officer Holloway’s statement about the link between firearms and drug .trafficking and the evidence presented at trial. However, as this court in Gill held, “[t]his argument goes to the weight to be accorded the testimony, not its admissibility.” H.

Second, even if admitting this evidence were an error, it did not affect Bra-den’s substantial rights. Braden cannot show that the admission of Officer Holloway’s testimony affected the outcome of trial. At trial, the prosecution presented substantial evidence of Braden’s guilt independent of Officer Holloway’s statement. This evidence included the fact that one of the guns was found in close proximity to 12 pounds of marijuana inside a closet in Braden’s bedroom. Such a quantity of marijuana is consistent with distribution. Further, a second gun was located near the notebook containing entries consistent with drug trafficking. As a result, based on these facts and the facts discussed above, the admission of Officer Holloway’s testimony, if it were in error, did not affect Braden’s substantial rights. Thus, there was no plain error.

We would reach the same result addressing Braden’s claim as an appeal from the district court’s denial of his motion to set aside the verdict. It appears that Braden’s motion, though using other words, was a motion for a new trial, as the relief requested on appeal is a remand for a retrial. Motions for a new trial will only be granted if “a Serious miscarriage of justice may have occurred.” United States v. Fetters, 698 F.3d 653, 656 (8th Cir. 2012) (quoting United States v. Rice, 449 F.3d 887, 893 (8th Cir. 2006)). For the reasons just stated, Braden cannot meet this standard.

III.

For the foregoing reasons, the judgment of the district court is affirmed.

      . The Honorable Stephen N. Limbaugh, Jr., United States District Judge for the Eastern District of Missouri, adopting the Report and Recommendation of the Honorable Abbie Crites-Leoni, United States Magistrate Judge • for the Eastern District of Missouri.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694(1966).


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    UNITED STATES of America, Plaintiff-Appellee v. Tyrone PARROW, Defendant-Appellant
    No. 15-3829
    United States Court of Appeals, Eighth Circuit.
    Submitted: October 17, 2016
    Filed: December 30, 2016
    Counsel who. represented the appellant was Heather Quick, AFPD, of Cedar Rapids, IA.

      Counsel who represented the appellee was Dan Chatham, AUSA, of Cedar Rapids, IA.
    Before RILEY, Chief Judge, WOLLMAN and BENTON, Circuit • Judges.
   PER CURIAM.

Tyrone Parrow pled guilty to possessing a firearm after a domestic-abuse conviction, in violation of 18 U.S.C. § 922(g)(9). The district court sentenced him to 77 months’ imprisonment and three years’ supervised release. Parrow appeals (1) the base-offense level of 20 under section 2K2.1(a)(4)(A) of the U.S. Sentencing Guidelines, and (2) the four-level enhancement for possessing the firearm in connection with another felony under section 2K2.1(b)(6)(B). Having jurisdiction under 28 U.S.C. § 1291, this court affirms.

Application of section 2K2.1(a)(4)(A) is reviewed for plain error because Parrow did not object. See United States v. Poitra, 648 F.3d 884, 892 (8th Cir. 2011); United States v. Pirani, 406 F.3d 643, 549 (8th Cir. 2005) (en banc). Application of section 2K2.1(b)(6)(B) is reviewed de novo. See United States v. Jackson, 633 F.3d 703, 705 (8th Cir. 2011).

I.

Under section 2K2.1(a)(4)(A), the base level for a felon-in-possession offense is 20 if the defendant has “one felony conviction of ... a crime of violence,” A crime of violence “has as an element the use, attempted use, or threatened use of physical force against the person of another.” Section 4B1.2(a)(l). “[T]he phrase ‘physical force’ means violent force—that is, force capable of causing physical pain or injury to another person.’’ Johnson v. United States, 559 U.S. 133, 140, 130 S.Ct. 1265, 176 L.Ed.2d 1 (2010) (interpreting a nearly identical term).

Here, the prior conviction is for Domestic Abuse-Strangulation, which punishes domestic assaults “committed by knowingly impeding the normal breathing or circulation of the blood of another by applying pressure to the throat or neck of the other person or by obstructing the nose or mouth of the other person.” Iowa Code § 708.2A(2)(d). This conviction—an aggravated misdemeanor punishable by imprisonment for over one year—is a felony offense. See Iowa Code § 903.1(2); United States v. Holm, 745 F.3d 938, 941 (8th Cir. 2014).

To decide whether a conviction is a crime of violence under section 2K2.1(a)(4)(A), this court applies “a categorical approach, looking to the elements of the offense as defined in the... statute of conviction rather than to the facts underlying the ... conviction.” United States v. Dawn, 685 F.3d 790, 794 (8th Cir. 2012). If the statute includes both offenses that are and are not crimes of violence—is divisible—this court applies “a modified categorical approach to look at the charging document, plea colloquy, and comparable judicial records for determining which part of the statute the defendant violated.” United States v. Rice, 813 F.3d 704, 705 (8th Cir. 2016). A statute is not divisible when it, “instead of laying out a crime’s elements, lists alternative means of fulfilling one (or more) elements,” so a jury does not have to decide between the two scenarios to convict. Mathis v. United States, — U.S. -, 136 S.Ct. 2243, 2253, 195 L.Ed.2d 604 (2016) (holding that another Iowa statute was not divisible because it listed “disjunctive factual scenarios” for burglary, not separate elements).

Domestic Abuse-Strangulation has two scenarios for conviction: “by applying pressure to the throat or neck, of another person,” or “by obstructing the nose or mouth of another person.” Iowa Code § 708.2A(2)(d). These alternatives are means of violating the statute because, to be convicted, the defendant need only knowingly impair breathing or blood circulation during a domestic assault. See State v. Bland, 871 N.W.2d 703 (table), 2015 WL 5278926, at *1 (Iowa. App. 2015) (using a single umbrella term of “domestic abuse assault by strangulation” for either means); Mathis, 136 S.Ct. at 2257 (state court’s use of a “single umbrella term like ‘premises’ ” to include all alternatives shows “that each alternative is only a possible means of commission ... ”). The categorical approach applies here.

The elements of Domestic Abuse-Strangulation are: (1) committing a domestic assault in violation of Iowa Code § 708.1, and (2) knowingly causing impaired breathing or blood circulation by either means in the statute. Knowingly strangulating another is categorically capable of causing physical .pain or injury to another person because it requires proof that the victim’s breathing or blood circulation was impaired by the defendant. Iowa Code § 708.2A(2)(d); State v. Gordon, 560 N.W.2d 4, 6 (Iowa 1997) (defining “bodily injury” as “physical pain, illness, or any impairment of physical condition.”). The offense here “includes the use of violent force as an element ‘since its impossible to cause bodily injury without using .force capable of producing that result.’” Rice, 813 F.3d at 706, quoting United States v. Castleman, — U.S. -, 134 S.Ct. 1405, 1416-17, 188 L.Ed.2d 426 (2014) (Scalia, J., concurring).

Parrow’s prior conviction for Domestic Abuse-Strangulatión is a crime of viólencé. His base offense level was not erronéous. See United States v. Jones, 574 F.3d 546, 552 (8th Cir. 2009) (holding that attempted domestic assault by choking is a crime of violence under ACCA because it “involves conduct that is ... purposeful, violent and aggressive.”). See also United States v. Howell, 838 F.3d 489, 501 (5th Cir. 2016) (holding that an almost identical Texas domestic-assáúlt-by-strangulation statute is a crime of violence under the Guidelines); United States v. McMillian, 652 Fed.Appx. 186, 192-93 (4th Cir. 2016) (holding that assault by strangulation is a crime of violence under the Guidelines).

II.

Parrow objects to the application of section 2K2.1(b)(6)(B), which requires a four-level enhancement if the defendant “[u]sed or possessed any firearm or ammunition in connection with another felony offense.” Section 2K2.1(b)(6)(B). “Another felony offense” is “any Federal, state, or local offense, other than the . .•. .firearms possession or trafficking offense, punishable by-imprisonment for a term. exceeding one year, regardless of whether a criminal charge was brought, or a conviction obtained.” Section 2K2.1, n.l4(C).

Here, the other felony offense is Iowa Code § 724.4(1), which prohibits carrying concealed firearms. Iowa Code §. 724.4(1) “does not fall within the narrow Note 14(C) exclusion for ‘the ... firearms possession ... offense’ ” because it is possible to be a felon in possession , under 18 U.S.C. § 922(g) without committing the Iowa firearms offense. United States v. Walker, 771 F.3d 449, 452-53 (8th Cir. 2014). Parrow disagrees with Walker, but it is controlling. United States v. Reynolds, 116 F.3d 328, 329 (8th Cir. 1997) (“One panel may not overrule another.”). The district court properly applied the four-level enhancement.

The judgment is affirmed.

      . The Honorable Linda R. Reade, Chief Judge, United States District Court for the Northern District of Iowa.

      . Parrow moves to file a supplemental brief to invoke Beckles v. United States, 616 Fed.Appx. 415 (11th Cir. 2015), cert. granted, — U.S. -, 136 S.Ct. 2510, 195 L.Ed.2d 838 (2016) (presenting the question whether the ACCA’s residual clause invalidated as unconstitutionally vague in Johnson v. United States, — U.S. -, 135 S.Ct. 2551, 2558, 192 L.Ed.2d 569 (2015), retroactively applies to identical language in the Guidelines). Because Par-row's sentence is justified under section 4B 1.2(a)(1) without resort to the residual clause in section 4B 1.2(a)(2), this court need not reach the Bedeles issue. See Beeson v. Hudson, 630 F.2d 622, 627 (8th Cir. 1980) ("It is the established practice of federal courts to avoid the decision of delicate constitutional questions if the case presenting them may be disposed of on alternative grounds.”). Parrow’s motion to file a supplemental brief is denied.


author: Judge BURNS BURNS, District Judge:

text:
    Maria GUTIERREZ, Plaintiff-Appellant, v. Carolyn COLVIN, Commissioner of Social Security, Defendant-Appellee.
    No. 14-35231
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted July 7, 2016 Portland, Oregon
    Filed November 29, 2016

      James S. Coon, Esquire, Attorney, Swanson, Thomas, Coon & Newton, Portland, OR, for Plaintiff-Appellant.
    Adrian Lee Brown, Assistant U.S. Attorney, DOJ-USAO, Portland, OR, Lars J. Nelson, Assistant Regional Counsel, Office of the General Counsel, SSA, Seattle Region, Seattle, WA, for Defendant-Appellee.
    COUNSEL James S. Coon (argued), Swanson Thomas Coon & Newton, Portland, Oregon, for Plaintiff-Appellant.
    Lars J. Nelson (argued), Assistant Regional Counsel; David Morado, Regional Chief Counsel; Office of the General Counsel, Region X, Social Security Administration; Seattle, Washington; Ronald K. Silver, Assistant United States Attorney; United States Attorney’s Office, Portland, Oregon; for Defendant-Appellee.

      Before: CARLOS T. BEA and JOHN B. OWENS, Circuit Judges and LARRY A. BURNS, District Judge.

       The Honorable Larry Ai Burns, District Judge for the U.S. District Court for the Southern District of California, sitting by designation.

   ORDER AND OPINION

Opinion by

Judge BURNS

SUMMARY

Social Security

’ The panel withdrew the 'memorandum disposition filed July 29, 2016, and replaced it with an opinion affirming the district court’s holding that a Social Security administrative law judge (“ALJ”) did not err by not asking the vocational expert more specific questions regarding a claimant’s ability to reach overhead as part of a cashier job, in connection with the claimant's application for Social Security disability benefits.

The Dictionary of Occupational Titles is a resource compiled by the U.S. Department of Labor that details the specific requirements for different occupations. If a vocational expert’s opinion that a claimant is able to work conflicts with the requirements listed in the Dictionary, then the ALJ must ask the expert to reconcile the conflict before relying on the expert to decide if the claimant was disabled.

The panel held that there was no apparent or obvious conflict between the expert’s testimony that claimant could work as á cashier, and the Dictionary’s general statement that cashiering requires frequent reaching. The panel further held that given how uncommon it was for . most cashiers to have to reach overhead, there was no obvious conflict between the expert testimony and the Dictionary.

Defendant-Appellee’s request for publication, filed, September 20, 2016, is GRANTED. The original mandate that issued on September 21, 2016 is recalled. The memorandum disposition filed July 29, 2016 is withdrawn and replaced with an opinion filed together with this order. A revised memorandum disposition addressing issues not addressed in the opinion is also filed with this order. Further petitions for rehearing or rehearing en banc may be filed.

OPINION

BURNS, District Judge:

American citizens (and certain aliens) who believe they can’t work because of a medical impairment may apply to the Social Security Administration for disability benefits. An agency representative reviews the application and makes a disability determination. If the applicant disagrees with the determination, he or she has the right to a hearing before an administrative' law judge (“ALJ”).

At the hearing, the ALJ must follow a five-step evaluation process to determine if the applicant is disabled and entitled to benefits, 20 C.F.R. § 404.1520. At step five—the only step relevant to this appeal—the ALJ considers the applicant’s background and residual functional capacity, that is, what physical tasks the applicant can still perform despite his or her limitations, to decide if the applicant can make an adjustment to some other available job. Tackett v. Apfel, 180 F.3d 1094, 1100 (9th Cir. 1999).

To aid in making this determination, the ALJ may rely on an impartial vocational expert to provide testimony about jobs the applicant can perform despite his or her limitations. Hill v. Astrue, 698 F.3d 1153, 1161 (9th Cir. 2012). The Dictionary of Occupational Titles (“Dictionary”), a resource compiled by the Department of Labor that details the specific requirements for different occupations, guides the analysis. If the expert’s opinion that the applicant is able to work conflicts with, or seems to conflict with, the requirements listed in the Dictionary, then the ALJ must ask the expert to reconcile .the conflict before relying on the expert to decide if the claimant is disabled. SSR 00-4P, 2000 WL 1898704, at *2 (2000). An applicant is entitled to disability benefits unless the ALJ finds that the person is capable of making the adjustment to other work.

I

In this case, Maria Gutierrez appeals the district court’s judgment affirming the ALJ’s denial of her application for disability benefits. It is undisputed that Ms. Gutierrez can’t lift more than five pounds with her right arm or lift that arm above her shoulder, but she has no limitations to her left arm. At her benefits hearing, the ALJ asked the vocational expert a hypothetical question: Assuming Ms. Gutierrez has the above mentioned limitations, is there any job she can perform? The expert eliminated almost all jobs from the calculus, but opined that Ms. Gutierrez could work as a cashier. He estimated that there were 2,000 cashier jobs available statewide in Oregon and 200,000 such jobs nationwide. The ALJ then specifically asked the expert if his opinion was consistent with the description of cashiering set forth in the Dictionary, and the expert said it was. After considering all of the evidence, the ALJ determined that although Ms. Gutierrez had some restrictions to her right arm—including the inability to reach above shoulder level—she could successfully adjust to work as a cashier and was -not disabled.

Ms. Gutierrez’s principal argument on appeal is that because the Dictionary definition specifies that cashiers must engage in frequent “reaching,” the ALJ erred at step five by not asking the expert more specific questions regarding her ability to perform the job given that she can’t reach overhead with her right arm. Resolving this argument requires us to determine whether overhead reaching is such a common and obvious part of cashiering that the ALJ should have recognized a conflict and questioned the expert more closely before concluding that Ms. Gutierrez could work as a cashier.

II

Our review is de novó. Mayes v. Massanari, 276 F.3d 453, 458 (9th Cir. 2001). We must affirm the ALJ’s findings of fact “if they are supported by ‘substantial evidence’ and if the proper legal standard was applied.” Id. at 458-59.

III

To begin with, it’s important to keep in mind that the Dictionary refers to “occupations,” not to specific jobs. “Occupation” is a broad term that includes “the collective description” of “numerous jobs” and lists “maximum requirements” of the jobs as “generally performed.” SSR 00-4P, 2000 WL 1898704, at *2-3. Because of this definitional overlap, not all potential conflicts between an expert’s job suitability recommendation and the Dictionary’s list-mg of “maximum requirements” for an occupation will be apparent or obvious. And, to reiterate, an ALJ need only follow up on those that are.

The Dictionary’s definition of “cashier” illustrates the definitional overlap. It’s a windy, highly technical, 1000-word effort that specifies that a cashier may need to “reach frequently,” but also be able to read “adventure stories and comic books,” write in “cursive,” “interpret bar graphs,” and follow “instructions for assembling model cars.” Dictionary, 211462-010 (Cashier II), 1991 WL 671840 (1991). While the ability to read, write, and follow assembly instructions may roughly correlate to the aptitude necessary to perform some cashiering jobs, those abilities aren’t necessarily essential for most cashiers. Indeed, the examples given by the Dictionary—“Cafeteria Cashier,” “Store Cashier,” “Change-Booth Cashier”—contemplate such mundane functions as making change, operating a cash register, selling tickets, and scanning Universal Product Codes—none of which require overhead reaching. IcL; see also Guidelines for Retail Grocery Stores: Ergonomics for the Prevention of Musculoskeletal Disorders, U.S. Department of Labor, 10, 17-18 (2004), www.osha.gov/Publications/ osha3192.pdf (noting a cashier should “work with items at about elbow height”).

For a difference between an expert’s testimony and the Dictionary’s listings to be fairly characterized as a conflict, it must be obvious or apparent. This means that the testimony must be at odds with the Dictionary’s listing of job requirements that are essential, integral, or expected. This is not to say that ALJs are free to disregard the Dictionary’s definitions or take them with a grain of salt— they aren’t. But tasks that aren’t essential, integral, or expected parts of a job are less likely to qualify as apparent conflicts that the ALJ must ask about. Likewise, where the job itself is a familiar one—like cashiering—less scrutiny by the ALJ is required.

Here, the ALJ didn’t err because there was no apparent or obvious conflict between the expert’s testimony that Ms. Gutierrez could perform as a cashier, despite her weight bearing and overhead reaching limitations with her right arm, and the Dictionary’s general statement that cashiering requires frequent reaching. While “reaching” connotes the ability to extend one’s hands and arms “in any direction,” SSR 85-15, 1985 WL 56857, at *7 (1985), not every job that involves reaching requires the ability to reach overhead. Cashiering is a good example.

According to the Dictionary, “frequent reaching” is required of both cashiers and stock clerks. But anyone who’s made a trip to the corner grocery store knows that while a clerk stocking shelves has to reach overhead frequently, the typical cashier never has to. To be sure, an ALJ must ask follow up questions of a vocational expert when the expert’s testimony is either obviously or apparently contrary to the Dictionary, but the obligation doesn’t extend to unlikely situations or circumstances. Had the expert opined that Ms. Gutierrez could stock shelves or wash windows, the conflict would have been apparent and obvious, and the ALJ would have needed to follow up with more specific questions. But where the frequency or necessity of a task is unlikely and unforeseeable—as it is with cashiers having to reach overhead—there’s no similar obligation.

Given how uncommon it is for most cashiers to have to reach overhead, we conclude that there was no apparent or obvious conflict between the expert’s testimony and the Dictionary. The requirement for an ALJ to ask follow up questions is fact-dependent. While we acknowledge that there may be exceptional circumstances where cashiers have to reach overhead, this case doesn’t present any. Responding to the ALJ’s hypothetical question that specifically accounted for Ms. Gutierrez’s limitations, the expert eliminated all jobs that would have required weight bearing and overhead reaching with her right arm, identifying a single job she could perform despite her limitations. The ALJ was entitled to rely on the expert’s “experience in job placement” to account for “a particular job’s requirements,” SSR 00-4P, 2000 WL 1898704, at *2, and correctly did so here.

AFFIRMED.

       This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader,

      . We addressed her other arguments in a memorandum filed simultaneously with this opinion.

      . An example of cashiering that could involve overhead reaching is where a store sells restricted merchandise, such as cigarettes, which are kept overhead. But even in this atypical example, Ms. Gutierrez's, reaching restriction would not have prevented her from reaching overhead with her left arm.


author: GOULD, Circuit Judge:

text:
    FOWLER PACKING COMPANY, INC.; Gerawan Farming, Inc., Plaintiffs-Appellants, v. David M. LANIER, in his official capacity as Secretary of the California Labor and Workforce Development Agency; Christine Baker, in her official capacity as the Director of the Department of Industrial Relations; Julie A. Su, in her official capacity as California Labor Commissioner, Defendants-Appellees.
    No. 16-16236
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted November 16, 2016, San Francisco, California
    Filed December 20, 2016

      David A. Schwarz .(argued) and Michael D. Harbour, Irell & Manella LLP, Los Angeles, California, for Plaintiffs-Appellants.
    Thomas Patton (argued), Deputy Attorney General; Mark R. Beekington, Supervising Deputy Attorney General; Douglas J. Woods, Senior Assistant Attorney General; Kamala D. Harris, Attorney General; -Office of the Attorney. General, Sacramento, California; for Defendants-Appellees.
    Damien M. Schiff and Wencong Fa, Pacific Legal Foundation, Sacramento, California, for Amici Curiae Western Growers, California Fresh Fruit Association, African-American Farmers of California, California Farm Bureau Federation, Fresno County Farm Bureau, and Nisei Farmers League.
    Before: RONALD M. GOULD, RICHARD R. CLIFTON, and PAUL J. WATFORD, Circuit Judges.
   OPINION

GOULD, Circuit Judge:

In response to recent state appellate court decisions that exposed employers to significant and unexpected minimum wage liability, California passed Assembly Bill 1513 (AB 1513). This law created a “safe harbor” that gave employers an affirmative defense against the new claims so long as the employer made back payments under certain conditions. AB 1513 allowed the employers to avoid the costs and statutory penalties that they would otherwise face as a result of underpayment litigation. The legislation, however, also included specific “carve-outs” that were crafted such that three or four employers would be precluded from using the safe harbor in then-pending litigation against them. Plaintiffs Fowler Packing Company, Inc. (Fowler) and Gerawan Farming, Inc. (Ger-awan), assert that the legislature added these carve-outs to AB 1513 to obtain the necessary support of a labor union. Plaintiffs brought suit against Defendants, who are California officials, asserting that the carve-outs violated the Bill of Attainder Clause and the Equal Protection Clause of the United States Constitution, as well as Article IV, Section 16 of the California Constitution. The district court dismissed their complaint as to all claims. Plaintiffs appeal the dismissal of their federal constitutional claims only.

We have jurisdiction to review the district court’s order under 28 U.S.C. § 1291. We hold that Plaintiffs’ complaint states a plausible claim for relief under the Equal Protection Clause, but fails to state a plausible claim that AB 1513’s carve-outs amount to a bill of attainder. The panel has previously filed an order on December 9, 2016, stating:

We conclude that the district court correctly dismissed the bill of attainder claim, but erroneously dismissed the equal protection claim. We therefore AFFIRM in part and REVERSE in part, and REMAND the case to the district court for further proceedings with respect to the equal protection claim only. A written opinion giving the court’s reasoning will follow in. due course.
The time for filing any petition for rehearing or petition for rehearing en banc shall be extended and shall not begin to run until the court has filed its written opinion giving its reasoning.

We now in this opinion provide our reasoning and note that the time for filing any petition for rehearing ór rehearing en banc shall run from the filed date of this opinion.

I

Plaintiffs’ complaint asserts the following facts. Fowler and Gerawan are California corporations engaged in the agriculture business that pay some of their employees on a “piece-rate” basis. Piece-rate payment is a system in which employees are compensated according to tasks completed rather than hours worked. Relying on the then-prevailing interpretation of federal minimum wage statutes, Plaintiffs ensured they met California minimum, wage laws by averaging their piece-rate employees’ payment during a fixed period of time and supplementing any deficiency below the applicable state minimum wage. In 2013, two California Court of Appeal decisions, Gonzalez v. Downtown LA Motors, LP, 215 Cal.App.4th 36, 155 Cal.Rptr.3d 18 (2013), and Bluford v. Safeway Stores, Inc., 216 Cal.App.4th 864, 157 Cal.Rptr.3d 212 (2013), held that piece-rate workers must also be paid for each hour of “nonproductive time”—time in which a worker was at work but not completing a task— and for rest, recovery, and meal periods. According to Plaintiffs’ complaint, these decisions exposed many employers, including Plaintiffs, to unanticipated and potentially crippling class litigation.

In response, California enacted Assembly Bill 1513 (AB 1513) on October 10, 2015, which codified the holdings in Gonzalez and Bluford. Cal. Lab. Code § 226.2(a). To protect California businesses from unforeseen liability arising from Gonzalez and Bluford, however, AB 1513 also created a “safe harbor” that provided employers with an affirmative defense against claims alleging failure to pay previously for nonproductive work time. Cal. Lab. Code § 226.2(b). Employers can use the safe harbor so long as they pay, no later than December 15, 2016, any minimum wage deficiencies occurring between July 1, 2012, and December 31, 2015. Cal. Lab. Code § 226.2(b)(1)(A).

But another provision of AB 1513, set forth in Cal. Lab. Code § 226.2(g), makes certain defendants facing nonproductive work time claims ineligible for the safe harbor. One of these “carve-outs” makes a defendant ineligible if facing:

[c]laims based on the failure to provide paid rest or recovery periods or pay for other nonproductive time for which all of the following are true:
(A) The claim was asserted in a court pleading filed prior to March 1, 2014, or was asserted in an amendment to 'a claim that relates back to a court pleading filed prior to March 1, 2014, and the amendment or permission for amendment was filed prior to July 1, 2015.
(B) The claim was asserted against a defendant named with specificity and joined as a defendant, other than as an unnamed (DOE) defendant ... in the pleading referred to in subparagraph (A), or another pleading or amendment filed in the same action prior to January 1, 2015.

Cal. Lab. Code § 226.2(g)(2). Section 226.2(g)(2) makes Gerawan ineligible to assert the safe, harbor as an affirmative defense in a class action suit filed against it by the .General Counsel of the United Farm Workers of America (UFW) on February 3, 2014, Amaro v. Gerawan Farming, Inc., No. 1:14-cv-00147-DAD-SAB (E.D. Cal.). It also would have precluded Delano Farms Company (Delano), another agricultural company that is not a party to this litigation, from asserting the safe harbor as an affirmative defense in a class action suit filed against it by the UFW, in which the plaintiffs filed a motion for leave to add nonproductive time allegations to their complaint on June 22, 2015, Arredondo v. Delano Farms Company, No. 1:09— cv-01247-MJS (E.D. Cal.).

Still another carve-out provision precludes the use of the safe harbor as an affirmative defense by a defendant facing:

[cjlaims for paid rest or recovery periods or pay for other nonproductive time that were made in any case filed prior to April 1, 2015, when the case contained by that date an allegation that the employer has intentionally stolen, diminished, or otherwise deprived employees of wages through the use of fictitious worker names or names of workers that were not actually working.

Cal. Lab. Code § 226.2(g)(5). This carve-out prevents Fowler from asserting the safe harbor as an affirmative defense in a class action suit filed against it by the UFW on March 17, 2015, Aldapa v. Fowler Packing Co., Inc., No. 1:15-cv-00420-JAM-SAB (E.D. Cal.). According to Plaintiffs, the class actions against Fowler, Ger-awan, and Delano are the only three pending wage and hour class actions filed by the UFW in seven years before the filing of Plaintiffs’ complaint.

Plaintiffs’ complaint also sets forth allegations relating to AB 1513’s legislative history. According to the complaint, late in the 2014 legislative term, a bill that established the safe harbor, but one without any of the carve-outs, was proposed to the California legislature. That bill was never formally introduced. On March 5, 2015, an initial version of AB 1513 was introduced. This initial version did not address piece-rate compensation or the Gonzalez or Bin-ford, decisions; it instead addressed an unrelated labor issue. On August 27, 2015, a new version of AB 1513 was reintroduced. Bearing no resemblance to its initial version, the new AB 1513 contained the carve-out provisions challenged here. The new AB 1513 was a result of “closed negotiations” between the California Labor and Workforce Development Agency, labor unions including the UFW, and employer groups. Assemblymember Das Williams presented the bill to the legislature with sixteen days left in the 2015 session, a fact that prompted one Senator to comment that “not only is the ink wet, there’s no ink on the paper on some of these issues that have been surfaced that are .., core, fundamental issues.” Plaintiffs allege, based on a September 30, 2015, article published in the Sacramento Bee, which they attached to their complaint, that the carve-outs were demanded by the UFW as necessary conditions to obtain UFW’s support for the safe harbor provision. Plaintiffs also allege that UFW sought the carve-outs as retribution for Gerawan’s resistance in contractual negotiations with the union.

Plaintiffs’ complaint asserts federal constitutional claims, contending that AB 1513’s carve-outs violate the prohibition against bills of attainder as well as the Equal Protection Clause. It also asserts a claim under Article IV, Section 16 of the California Constitution, The district court dismissed all three claims with prejudice. It dismissed the California Constitution claim because the court lacked jurisdiction to address it. See Pennhurst St. Sch. & Hosp. v. Haldemnan, 465 U.S. 89, 121, 104 S.Ct. 900, 79 L.Ed.2d 67 (1984). The district court dismissed the bill of attainder claim on the grounds that AB 1513’s carve-outs did not amount to punishment and the legislative record did not show an intent to punish. And the district court dismissed the Equal Protection Clause claim on the grounds that the carve-outs were reasonably related to a legitimate government interest. Plaintiffs timely appeal the dismissal of their federal claims only. We therefore address the bill of attainder and equal protection claims, but need not address the claim under the California Constitution.

II

We review the district court’s order dismissing Plaintiffs’ complaint de novo. Brewster v. Sun Trust Mortg., Inc., 742 F.3d 876, 877 (9th Cir. 2014). We must determine whether Plaintiffs’ complaint pleads “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 547, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). “In doing so, we accept as true all factual allegations and determine whether they are sufficient to state a claim for relief; we do not, however, accept as true allegations that are conclusory.,.. [The fjactual allegations must be enough to raise a right to relief above the speculative level.” In re NVIDIA Corp. Sec. Litig., 768 F.3d 1046, 1051 (9th Cir. 2014) (citation and internal quotation marks omitted).

III

We first consider whether the district court erred in dismissing Plaintiffs’ claim under the Equal Protection Clause. We conclude that it did.

The parties agree, as do we, that AB 1513 implicates no suspect class or fundamental right. As a result, we scrutinize the carve-outs using rational basis review. Romero-Ochoa v. Holder, 712 F.3d 1328, 1331 (9th Cir. 2013). This analysis asks whether “there is any reasonably conceivable state of facts that could provide a rational basis for the classification.” F.C.C. v. Beach Comms., Inc., 508 U.S. 307, 313, 113 S.Ct. 2096, 124 L.Ed.2d 211 (1993). This inquiry is not a “license for courts to judge the wisdom, fairness, or. logic of legislative choices”; if we find a “plausible reason[] for [California’s] action, our inquiry is at an-end,” and we must affirm the dismissal of this claim. Id. at 313-14, 113 S.Ct. 2096 (internal quotation marks omitted).

Plaintiffs argue that AB 1513 fails to satisfy rational basis review because the only reason the carve-outs were included in the final bill was to procure the support of the UFW. As Defendants conceded at oral argument and as we conclude, if that is the only justification for the carve-outs, that justification alone does not survive constitutional scrutiny. Plaintiffs have plausibly alleged that the cut-off dates in sections (g)(2) and (g)(5) were included in AB 1513 for only that illegitimate purpose. Each cut-off date corresponds, within a matter of weeks (or even a .matter of days), to the corresponding filing dates of the cases against Fowler, Gerawan, and Delano. Accepting Plaintiffs’ allegations as true, as we must at this stage of the litigation, we can conceive of no other reason why the California legislature would choose to carve out these three employers other than to respond to the demands of a political constituent.

We must, however, consider the justifications Defendants offer. With respect to section (g)(2)(A), Defendants contend that the government sought to protect expectations developed as a result of already-pending litigation and to prevent unlimited relief to employers. We need not question the legitimacy of such a justification. Although we defer to legislatures in the necessary process of regulatory line-drawing, Beach Communications, 508 U.S. at 315-16, 113 S.Ct. 2096, legislatures may not draw lines for the purpose of arbitrarily excluding individuals, see Merrifield v. Lockyer, 547 F.3d 978, 991-92 (9th Cir. 2008) (holding that a California statute excluding certain workers from an exemption from licensing requirements violated the Equal Protection Clause because the exclusion was not rationally related to a legitimate government interest). This is exactly what AB 1513, as alleged, does to Plaintiffs. Because Plaintiffs have plausibly alleged that the choice of cut-off dates can only be explained as a concession to the UFW in exchange for its support for AB 1513, section (g)(2) does not. reasonably further this suggested justification.

Subsection (g)(2)(B)’s language supports this point. That subsection limits the section (g)(2) carve-out to only those claims in which “[t]he claim was asserted against a defendant named with specificity and joined as a defendant, other than as an unnamed (DOE) defendant pursuant to Section 474 of the Code of Civil Procedure, in the pleading referred to in subpara-graph (A), or another pleading or amendment filed in the same action prior to January 1, 2015.” Cal. Lab. Code § 226.2(g)(2)(B). Appellees offer no explanation for this subsection. They suggest no justification in their briefing and could not explain the provision when asked about it during oral argument. We also cannot conceive of any legitimate justification for this perplexing provision, except that it was tailored to keep other employers from being carved out of the safe harbor being denied to Fowler, Gerawan, and Delano.

- The justifications Defendants offer in explanation of section (g)(5) are also insufficient to support dismissal of Plaintiffs’ equal protection claim. Defendants assert that damages in “ghost worker” claims are more difficult to calculate and that the legislature may not have wanted to extend relief to employers who use ghost workers to engage in wage theft. But ghost worker claims are completely irrelevant to AB 1513’s safe harbor, which deals with claims of underpayment as a result of failing to pay for nonproductive work time. It would be no less rational to base the ability of a defendant to use the safe harbor on the grounds of whether that defendant has ever received a speeding ticket.

Moreover, section (g)(5)’s reliance on particular allegations directed to a completely unrelated claim as the basis for denying an affirmative defense further supports the inference that its purpose is to target the class action against Fowler. We could understand if California wanted to prevent employers who stole employees’ wages by using ghost worker manipulation from enjoying the benefits of the safe harbor in an unrelated claim because they have engaged in particularly wrongful conduct. But section (g)(5) does no such thing. It excludes employers from the safe harbor based on mere, allegations made against them, even if those allegations turn out to be completely frivolous.

As a final matter, we note that Defendants’ offered justification does not explain why section (g)(5) uses a cut-off date different from that used in section (g)(2). Again, we cannot conceive of a legitimate interest that would explain this decision.

Accepting Plaintiffs’ allegations as true, the only conceivable explanation for AB 1513’s carve-outs is that they were necessary to procure the UFW’s support in passing that legislation. Because that justification would not survive even rational basis scrutiny, we conclude that Plaintiffs’ complaint plausibly states a claim that those provisions violate the Equal Protection Clause.

IV

We next address Plaintiffs’ bill of attainder claim. Article I, Section 10, Clause 1 of the United States Constitution provides that, “[n]o State shall.... pass any Bill of Attainder.” A bill of attainder is a “law that legislatively determines guilt and inflicts punishment upon an identifiable individual without provision of the protections of a judicial trial.” Nixon v. Adm’r of Gen. Servs., 433 U.S. 425, 468, 97 S.Ct. 2777, 53 L.Ed.2d 867 (1977). For purposes of this analysis, we assume without deciding that corporations may seek the protection of the Bill of Attainder Clauses—a proposition not yet endorsed by -this circuit. See SeaRiver, 309 F.3d at 668 n.3 (assuming without deciding that the Article I, Section 9 Bill of Attainder Clause protects corporations). . .

The Supreme Court has identified three elements of a bill of attainder claim: “[1] specification of the affected persons, [2] punishment, and [3] lack of a judicial trial.” Selective Serv. Sys. v. Minn. Pub. Interest Research Grp., 468 U.S. 841, 847, 104 S.Ct. 3348, 82 L.Ed.2d 632 (1984). “In judging the constitutionality of [the challenged legislation], we may only look to its terms, to the intent expressed by [members of the legislature] who voted [for] its passage, and to the existence or nonexistence of legitimate explanations for its apparent effect.” SeaRiver, 309 F.3d at 673 (internal quotation marks omitted). We conclude that AB 1513⅛ carve-outs do not impose punishment and we need not address whether they satisfy the other two elements of a bill of attainder claim.

The Supreme Court has also identified three “necessary inquiries” that can indicate whether a law inflicts punishment for purposes of the Bill of Attainder Clauses: “(1) whether the challenged statute falls within the historical meaning of legislative punishment; (2) whether the statute, ‘viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpunitive legislative.purposes’; and (3) whether the legislative record ‘evinces a congressional intent to punish.’” Selective Service, 468 U.S. at 852, 104 S.Ct. 3348 (quoting Nixon, 433 U.S. at 473, 475-76, 478, 97 S.Ct. 2777). We must consider these three inquiries together, none of which is by itself necessary or dispositive. SeaRiver, 309 F.3d at 673. Furthef, as case' law requires, we niust view the law functionally as we engage in this analysis. E.g., Selective Service, 468 U.S. at 852, 104 S.Ct. 3348 (“It is ... apparent that, though the governing criteria for an attainder may be readily indicated, ‘each case has turned on its own highly particularized context.’ ” (quoting Flemming v. Nestor, 363 U.S. 603, 616, 80 S.Ct. 1367, 4 L.Ed.2d 1435 (1960))). In so doing, we conclude that the carve-outs do not impose punishment. Any liability Plaintiffs face in the class action cases being pursued against them is a result' of judicial interpretations of preexisting California law, not any action by the legislature linked to the passage of AB 1513. For that reason, AB 1513 cannot be held to impose punishment.

First, the carve-outs do not fall within the historical meaning of legislative punishment, which includes execution, imprisonment, banishment, punitive confiscation of property, and the prohibition of “participation by individuals or groups in specific employments or professions.” Selective Service, 468 U.S. at 852, 104 S.Ct. 3348; see also id. at 852 n.9, 104 S.Ct. 3348 (collecting cases). A law making a defendant ineligible to assert an affirmative defense in a civil lawsuit simply does not fit within that category of legislative action.

The second inquiry, which “ensure[s] that the [legislature has not created an impermissible penalty not previously held” to constitute punishment, id. at 853, 104 5.Ct. 3848, requires us to engage in a “functional test” by asking “whether the law under challenge, viewed in terms of the type and severity of burdens imposed, reasonably can be said to further nonpuni-tive legislative purposes,” Nixon, 433 U.S. at 475-76, 97 S.Ct. 2777. As discussed above, Plaintiffs have plausibly alleged that the only justification that reasonably explains California’s choice of cut-off dates is that it capitulated to the political demands . of the UFW. And as Defendants have conceded, that is not a legitimate government interest. Moreover, section (g)(5) exempts companies from the safe harbor based on allegations of unrelated conduct. Because neither section (g)(2) nor (g)(5) can be said to further a legitimate government interest, it is at least conceivable that the California legislature intended to punish Plaintiffs by carving them out of AB 1513’s safe harbor.

Third, we consider “whether the legislative record is probative of .nonpuni-tive intentions or instead evidences legislative overreaching that enlivens ‘the fear that.-the legislature, in seeking to pander to an inflamed popular constituency,’ found it ‘expedient openly to assume the mantle of judge—or, worse still, lynch mob.’” SeaRiver, 309 F.3d at 676 (quoting Nixon, 433 U.S. at 480, 97 S.Ct. 2777). Outright statements of punitive intent are not necessary; instead, we look for evidence permitting an inference of punitive intent. See Nixon, 433 U.S. at 480, 97 S.Ct. 2777 (“We, of course, do not suggest that such a formal legislative announcement of moral blameworthiness or punishment is necessary to an unlawful bill of attainder.”). The only allegations in Plaintiffs’ complaint relevant to this analysis are (1) the last-minute nature of AB 1513’s enactment and (2) post-enactment statements' purportedly made by Assemblymember Williams. With respect to the first, “departure from established legislative procedures may suggest an improper purpose.” SeaRiver, 309 F.3d at 677. The fact that Assemblymember Williams may have introduced AB 1513 only sixteen days before the end of the session, however, does not appear to be an unusual path to enactment. Legislative compromise can at times be hard fought, and it would be unwise to infer bad intent simply because negotiations were prolonged but ultimately successful.

The second set of allegations, the post-enactment statements • purportedly made by Assemblymember Williams, suggests that the carve-outs were motivated by political expediency, but not, in our view, an intent to punish. According to Plaintiffs’ allegations, Assemblymember Williams- stated that the carve-outs were necessary to maintain the support of labor, and that “[fjrom [his] perspective, if we’re going to create a grand compromise that helps most growers, and helps most workers, you don’t want to let it get blown up because there’s somebody who’s a potential bad actor.” These statements support the contention that the carve-outs served only as a concession to the UFW in ex-change for its support for AB 1513 as a whole. While such intent does not align with a legitimate justification for a law, it is distinct from an intent to punish. An intent to punish must be accompanied by the, imposition of some sort of harm, on certain individuals, and, the carve-outs do no such thing. Stated another way, the carve-outs do not punish Plaintiffs; rather, it is the pre-existing law that creates the monetary exposures for Plaintiffs to the extent they violated wage laws. While the novel issue is not clear cut, the weight of precedent leads us to conclude AB 1513 by its carve-outs imposes no punishment. This is fatal to Plaintiffs’ bill of attainder claim. Before AB 1513’s enactment; Plaintiffs faced class action litigation regarding, their purported failure to meet the minimum wage requirements set by California law. After AB 1513’s enactment, Plaintiffs face the exact same potential liability. AB 1513 neither changes the law governing Plaintiffs’ litigation, nor the amount of potential liability they face,

Plaintiffs argue that AB 1513 places a "functional burden” on them because their competitors now avoid costly litigation and statutory fees using the safe harbor. We first note that such- an argument is much more appropriate in the context of an equal protection challenge because it challenges the reason a legislature subjected one group to a particular policy, but not another. Second, denying certain individuals a benefit that had not previously existed is not an imposition of punishment. See Flemming, 363 U.S. at 617, 80 S.Ct. 1367. To be sure, a plaintiff need not be entitled to the benefit denied her by a bill of attainder. See, e.g., United States v. Brown, 381 U.S. 437, 85 S.Ct. 1707, 14 L.Ed.2d 484 (1965) (holding that a law barring Communist Party members from offices in labor unions is a bill of attainder). But the benefit at issue must have been in some way available to the plaintiff before the enactment of the law being challenged. Because the safe harbor was never available to Plaintiffs in the first place, they cannot claim they have been punished by being excluded from AB 1513’s protections.

Viewing the effect of AB 1513’s carve-outs functionally, we conclude AB 1513’s carve-outs do not impose punishment upon Plaintiffs. Because punishment is a necessary element of a bill of attainder, the district court properly dismissed this claim.

V

The district court erred in dismissing Plaintiffs’ equal protection claim, but correctly dismissed Plaintiffs’ bill of attainder claim. We AFFIRM in part and REVERSE in part, and REMAND for further proceedings.

Each party shall bear its own costs.

      . The district court in Arredondo denied the plaintiffs' motion for leave to amend on October 22, 2015, twelve days after AB 1513 was signed into law.

      . Defendants note that one other case was pending at the time of AB 1513's enactment in which nonproductive time allegations were asserted, Moreno v. Castlerock Farming and Trans., Inc., 1:12-cv-0056-AWI-JTL (E.D. Cal), which was filed on April 10, 2012, We take judicial notice of the fact that this case was filed and that a nonproductive time claim was alleged. See Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006). Defendants asserted at oral argument that there were additional cases that fell within the carve-outs, but they have not provided the Court with any information about such cases.

      . We recognize, as stated in the famous quotation often attributed to Bismarck, that laws are like sausages, in that it is better not to see them being made. So too courts rarely inquire into the sausage-making of political compromise. Equal protection 'doctrine reflects this attitude—outside of the infringement of fundamental rights and suspect class-based discrimination—by asking us to imagine any conceivable basis supporting a law, even if not advanced by the government. E.g., Kadr-mas v. Dickinson Pub. Schs., 487 U.S. 450, 463, 108 S.Ct. 2481, 101 L.Ed.2d 399 (1988) (in rational basis review,, the court is "not bound by explanations of the statute's rationality that may be offered by litigants or other courts”); U.S. R.R. Ret. Bd. v. Fritz, 449 U.S, 166, 179, 101 S.Ct. 453, 66 L.Ed.2d 368 (1980) (under the rational basis test, "[w]here, as here, -there are plausible reasons for Congress’ action, our inquiry is at an end. It is, of course, constitutionally irrelevant whether this reasoning in fact underlay the legislative decision” (internal quotation marks omitted)), We accept these principles, But here, we cannot imagine a plausible legitimate basis for the package of legislative classifications set by the legislature in AB 1513’s carve-outs, which requires us to conclude that Plaintiffs have alleged a plausible equal protection claim.

      . See Oral Arg., Fowler Packing Co., Inc. v. Lanier, No. 16-16236 (November 16, 2016),-at 25:22-27:22, https://www.youtube.com/ watch? v=mSn643L lYhA.

      . We note that much of the relevant case law interpreting the term "bill of attainder” does so in the context of Article I, Section 9, Clause 3 of the Constitution. That provision prohibits the federal government from enacting bills of attainder. Plaintiffs assert a violation of Article I, Section 10, Clause 1, which prohibits states from enacting bills of attainder. We see no reason, however, why the same term should be treated differently when applied to state legislatures, at least in the context of. this case. See SeaRiver Maritime Fin. Holdings, Inc. v. Mineta, 309 F.3d 662, 672 n.6 (9th Cir. 2002). We refer to these two constitutional provisions together as the "Bill of Attainder Clauses.”

      . Defendants argue that we may not consider allegations concerning the post-enactment statements because they are outside the formal legislative record. Plaintiffs respond that . we may consider such allegations because they are probative of the intent that motivated the carve-outs. We agree with Plaintiffs that post-enactment statements by the sponsoring member of the legislature are pertinent to this assessment because they allow insight into the legislature’s intent. See Nixon, 433 U.S. at 484, 97 S.Ct. 2777 ("In judging the constitutionality of the Act, we may ... look ... to the-intent expressed by Members of [the legislature] who votedffor] its passage.... ”).


author: M. SMITH, Circuit Judge:

text:
    UNITED STATES of America, Plaintiff-Appellee, v. Melvin Russell “Rusty” SHIELDS, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Michael Sims, Defendant-Appellant.
    No. 14-10561, No. 14-10562
    United States Court of Appeals, Ninth Circuit.
    Argued and Submitted October 20, 2016 San Francisco, California
    Filed December 21, 2016

      Erick Guzman (argued), Santa Rosa, California, for Defendant-Appellant Melvin Russell Shields.
    Ethan Atticus Balogh (argued) and Evan C. Greenberg, Coleman & Balogh LLP, San Francisco, California, for Defen-danb-Appellant Michael Sims.
    Annie M. Voigts (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 United States.
    Before: A. WALLACE TASHIMA and MILAN D. SMITH, JR., Circuit Judges, and EDWARD R. KORMAN, Senior District Judge.

       The Honorable Edward R. Korman, Senior United States District Judge for the Eastern District of New York, ‘sitting by designation.

   OPINION

M. SMITH, Circuit Judge:

Melvin Shields and Michael Sims appeal their jury convictions following a joint trial arising from the capitalization and operation of their real estate development business, which lost millions of investors’ dollars from 2007 to 2009. Shields was convicted on 32 counts, including conspiracy, wire fraud, bank fraud, securities fraud, and making a false statement to a bank. Sims was convicted on two wire fraud counts. Defendants challenge their convictions based on several claimed trial errors, including admission of prejudicial evidence, failure to sever the joint trial, ineffective assistance of counsel, - inadequate jury instructions, and denial of the right to be present at a critical stage. We affirm.

Although we hold that the district court erred by failing to instruct the jury that it must find a duty to disclose in order to convict defendants of wire fraud based on a material omission, that omission was not reversible plain error.

In an unpublished memorandum disposition filed concurrently with this opinion, we reject the defendants’ remaining challenges to their convictions.

FACTS AND PRIOR PROCEEDINGS

In 2006, Melvin Shields, Michael Sims, and Sam Stafford founded S3 Partners LLC, a real estate development business. The men claimed to be “three veteran entrepreneurs, each with a track record of success in his chosen field,” and from 2007 to 2009 they collectively solicited and obtained millions of dollars from investors, allegedly to fund various real estate projects. Shields focused primarily on managing the money raised, Sims on soliciting investors, and Stafford on real estate development. Ultimately, the S3 projects all failed, relationships among the partners soured, and the investors received little or no return on their investments. Shields asserts that this occurred because of the collapse of the real estate market in 2008; Sims claims that the failures were caused by his partners’ malfeasance; and the government asserts that the failures were caused by the partners’ fraudulent practices of lying to investors and diverting invested funds.

This appeal arises out of two of the S3 projects, respectively known as Stagecoach and Alafia. In January 2007, Stagecoach began developing retail units at a shopping center in Arizona. Although investors were solicited to invest in Stagecoach, only a portion of the investor funds and a bank loan obtained for Stagecoach were actually spent on the Stagecoach project; the balance of the funds was used for other projects and general S3 expenses. Alafia was formed in July 2007 for the purpose of buying, and expanding an existing assisted living facility in Florida. Potential investors were promised that an investment in Alafia was safe and secure, that they were guaranteed a 16% annual return on their investments, and that they would own the assisted living facility as tenants in common. However, before final ownership documents were signed by the investors, the owner of the Alafia facility refused to sell the assisted living facility to S3, so. the purchase could not be consummated.- Notwithstanding that fact, S3 used the funds solicited and collected for the Alalia project to fund other S3 projects, and unrelated expenses.

The government filed a 40-count superseding indictment against the S3 partners on September 18, 2013, accusing them of conspiracy, wire, mail, securities, and bank fraud; and making false statements to a bank. Stafford pleaded guilty to the conspiracy count and agreed to testify at trial. Shields and Sims were jointly tried on 39 counts, and on December 23, 2013 a jury convicted Shields on 32 counts and Sims on 2 counts. Shields and Sims were sentenced to seventy-eight and thirty months in prison, respectively, and each timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1291.

ANALYSIS

I. The District Court Erred by Failing to Instruct the Jury on the Duty to Disclose In Order for a Material Omission to Support a Wire Fraud Conviction.

Defendants argue that their wire fraud convictions should be reversed because the court erred in not instructing the jury that in order to find defendants guilty based on a material non-disclosure, it must first find that defendants had a duty to disclose the omitted information. Defendants claim" that this could have affected the verdict because the government relied on omissions as stand-alone examples of fraud, and because they did not have relationships with their investors that would support a duty to disclose.

Defendants are correct that “[a] nondisclosure [ ] can support a [wire] fraud charge only when there exists an independent duty that has been breached by the person so charged.” Eller v. EquiTrust Life Ins. Co., 778 F.3d 1089, 1092 (9th Cir. 2015) (internal quotation marks omitted); see also Chiarella v. United States, 445 U.S. 222, 230, 100 S.Ct. 1108, 63 L.Ed.2d 348 (1980) (holding, in a securities fraud case, that “a relationship of trust and con-, fidence” is required to create a duty to disclose); United States v. Dowling, 739 F.2d 1445, 1449 (9th Cir. 1984), rev’d on other grounds sub nom Dowling v. United States, 473 U.S. 207, 105 S.Ct. 3127, 87 L.Ed.2d 152 (1985) (holding that “a nondisclosure can only serve as a basis for a fraudulent. scheme when there exists an independent duty that has been breached by the person so charged,” such as a fidu ciary or statutory duty). Similarly, in United States v. Laurienti, 611 F.3d 530, 543 (9th Cir. 2010), we held that a jury must find that a broker had a “trust relationship” with his client for non-disclosure of bonus commissions to support a securities fraud conviction, and that the district court erred by not instructing on this element. Finally, in United States v. Milovanovic, 678 F.3d 713, 723-24 (9th Cir. 2012), we explained that the term “fiduciary” is a broad one in the honest services mail fraud context, encompassing “informal,” “trust-mg relationship^] in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance which it would ordinarily exercise.” Further, “[t]he existence of a fiduciary duty .,. is a fact-based determination that must ultimately be determined by a jury properly instructed on this..issue.” Id. at 723 (emphasis added).

In light of such precedents, we conclude that it was error to not instruct the jury that it must find a relationship creating a duty to disclose before it could conclude that a material non-disclosure supports a wire fraud charge. We adopt the definition of such a relationship identified in Milovanovic and apply it to wire fraud charges when an omissions theory of fraud is alleged.- Specifically, the relationship creating a duty to disclose may be a formal fiduciary relationship, or an “informal,” “trusting relationship in which one party acts for the benefit of another and induces the trusting party to relax the care and vigilance which it would ordinarily exercise.” Id. at 723-24. This is a factual determination to be made by a properly-instructed jury. Id. at 723. Although the jury in this case was not instructed on the need for a duty to disclose, we affirm the wire fraud convictions nonetheless because the omission was not reversible plain error.

II. Plain Error Analysis

Defendants did not request jury instructions on a duty to disclose, nor object to the instructions actually presented to the jury at trial, so we review for plain error. United States v. Fuchs, 218 F.3d 957, 961 (9th Cir, 2000). “A trial court commits plain error when (1) there is error, (2) that is plain {i.e., “clear and obvious”], and (3) the error affects substantial rights [ie., “affects the outcome of the proceedings”].” Id. at 962. “We may exercise our discretion to notice such error, but only if. the error seriously affects the fairness, integrity, or public reputation of judicial proceedings.” Id. For example, we held in Fuchs that a failure to instruct on the statute of limitations was plain error in a conspiracy case. Id. at 962. The error was plain in Fuchs because the instruction was- clearly required by Supreme' Court precedent and defendants had previously moved to dismiss the indictment on statute of limitations grounds. Id. The error affected substantial rights in Fuchs because “the acts that most strongly supported] a finding of conspiracy fell outside the statute of limitations.” Accordingly, we reversed because “[a]llowing defendants’ convictions to stand, given the likelihood that the jury may not have convicted had [it] been properly instructed, would be a ‘miscarriage of justice.’ ” Id. at 963.

In contrast, the error in this case was not plain. The district court’s instructions were based on the Ninth Circuit Model Jury Instructions for wire fraud (instruction 8.124), which did not include a duty to disclose instruction, and allowed for conviction based on material omissions. The district court followed the Model Instructions, the defendants did-not object, and there was then no controlling case law stating that there was a duty to disclose in order to convict for wire fraud where a material omission was involved. Thus, the error was not “clear and obvious.”

It is also unlikely that the error affected the outcome of the proceedings because a jury convicting based on defendants’ material omissions would most likely have concluded that relationships existed among the defendants and investors wherein defendants (1) purportedly acted for the benefit of investors, and (2) “induce[d investors] to relax [their ordinary] care and vigilance.” Milovanovic, 678 F.3d at 724.

Defendants’ appellate briefs claim that the government’s focus on non-disclosure of their previous personal bankruptcies may have impermissibly. supported their convictions. In summation, the government stated that, while a bankruptcy is “not [ ] a terrible moral failing or .,. wrong ... standing by itself,” in light of (1) their representations to investors that they were authorities in investing, and (2) the fact that the testifying investors said- that knowing about the bankruptcies would have affected their decisions to invest, the omission “standing by itself was an example of fraud." (Emphasis added). If a jury concluded that this omission was material 0ie., pursuant to the jury instructions it was “capable of influencing a person to part with money”), the jury would have likely concluded that defendants presented their financial histories to investors in a positive light to convince investors to trust defendants with their money, making a trusting relationship likely.

Additionally, the error most likely did not affect the outcome of the proceedings because other affirmative acts also support the convictions. Specifically, the record shows that Sims misled Alafia investors by affirming the accuracy of a misleading brochure, stating that investors were guaranteed a 15% annual return on their investments, and that the project was viable. The record also reflects that Sims misled Stagecoach investors by soliciting an investment specifically for Stagecoach, but then immediately diverting the money into his company’s account and spending it to reimburse his company for S3 expenses, including an interest payment to his daughter. Moreover, Sims testified that he knew in advance that he was going to spend the money he received from the investors, that he did not inform the investors of his intentions, and that he knew he thereby erred. The record also reflects that Shields solicited investors’ funds for specific projects, and led investors to believe that their money would be used for such projects, when Shields (the primary S3 money manager) clearly knew and intended that the funds would be comingled with other projects and used for S3 expenses and other purposes.

CONCLUSION

We conclude that the district court erred by not instructing the jury that it must find a relationship creating a duty to disclose in order to convict defendants of wire fraud based on any material omissions. We hold that, in order for an omission to support a wire fraud charge, the jury must be instructed that it must first find that the defendant and the defrauded party had a “trusting relationship in which [the defendant] act[ed] for the benefit of another and induce[d] the trusting party to relax the care and vigilance which it would ordinarily exercise.” Milovanovic, 678 F.3d at 724.

However, we AFFIRM the district court, because this was not reversible plain error. The error was not- “clear and obvious” because it was not clearly required by our precedent, and the error most likely did not affect the outcome of the proceedings.

      . ■ The jury instructions for wire fraud: required that the jury find:
      (1) ‘‘the defendant, knowingly participated in a scheme or plan to defraud ... with all of you agreeing on at least one particular false or fraudulent pretense, representation, or promise that was made”;
      (2) "the statements made •or facts omitted as part of the scheme were material'';
      (3) “the defendant acted with the intent to defraud”; and
      (4)"the defendant used or caused to be used a wire communication to carry out or attempt to carry out an essential part of the scheme.”
      (Emphasis added). '

      . Dowling concerns mail fraud, but "[i]t is well settled that cases construing the mail fraud and wire fraud statutes are applicable to either,” United States v. Shipsey, 363 F.3d 962, 971 n.10 (9th Cir. 2004).