United States v. Sullivan

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 23-927

D.C. No.

Plaintiff - Appellee,

3:20-cr-00337-

WHO-1

v.

JOSEPH SULLIVAN,

OPINION

Defendant - Appellant.

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted October 8, 2024

San Francisco, California

Filed March 13, 2025

Before: M. Margaret McKeown, Anthony D. Johnstone,

and Ana de Alba, Circuit Judges.

Opinion by Judge McKeown

2 USA V. SULLIVAN

SUMMARY *

Criminal Law

The panel affirmed Joseph Sullivan’s jury conviction for

obstruction of justice and misprision of a felony arising from

his efforts, while the Chief Security Officer for Uber

Technologies, to cover up a major data breach even as Uber

underwent investigation by the Federal Trade Commission

into the company’s data security practices.

Sullivan argued that the district court erred in rejecting

two of his proposed jury instructions regarding the

obstruction charge.

• The panel held that United States v. Bhagat, 436 F.3d

1140 (9th Cir. 2006), forecloses Sullivan’s argument

that the district court erred by rejecting an instruction

that would have required the jury to find that there

was a “nexus” between his conduct and the pending

FTC proceeding. The panel explained that Supreme

Court cases cited by Sullivan are not clearly

irreconcilable with Bhagat.

• Regarding Sullivan’s contention that the district

court erred by rejecting his “duty to disclose”

instruction, the panel observed that the tandem

prosecution under 18 U.S.C. § 1505 (the substantive

obstruction statute) and 18 U.S.C. § 2(b) (causing an

act to be done) presented conjunctive theories of

liability. Noting that Section 2(b) does not require a

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

USA V. SULLIVAN 3

defendant to have a duty to disclose if prosecuted for

inaction, and that Sullivan conceded that Uber was

duty-bound to respond to formal FTC inquiries

issued to Uber, the panel held that the validity of the

Section 2(b) theory rendered the omission of the

duty-to-disclose instruction proper.

Sullivan argued that the evidence of his alleged

misprision was insufficient as a matter of law. Misprision is

the crime of “having knowledge of the actual commission of

a felony” and “conceal[ing]” or failing to “as soon as

possible make known the same to some judge or other person

in civil or military authority under the United States.” To

establish misprision, the government is obliged to show that

the principal committed and completed the felony

alleged. Here, that meant proving that hackers had

intentionally accessed Uber’s computers without

authorization and thereby obtained information from those

protected computers, in violation of the Computer Fraud and

Abuse Act (CFAA).

• The panel held that the hackers’ illegal conduct could

not be laundered through Uber’s post hoc

authorization, via a non-disclosure agreement

(NDA), of their computer access.

• The panel held that the evidence does not support

Sullivan’s claim that, even if the hackers were

unauthorized within the meaning of the CFAA, he

reasonably believed that the NDA cleansed the

felonious access of its illegality.

• The panel held that a rational jury could have found

that Sullivan, who had been an Assistant U.S.

Attorney in a “Computer Hacking and IP Unit,”

4 USA V. SULLIVAN

knew that the conduct in question was a felony

punishable by more than a year in prison.

The panel held that the district court did not abuse its

discretion in permitting the introduction of the guilty plea

agreement signed by one of the hackers. Any unfair

prejudice did not substantially outweigh the probative value.

COUNSEL

Ross D. Mazer (argued), Assistant United States Attorney;

Merry J. Chan, Chief, Appellate Section, Criminal Division;

Office of the United States Attorney, United States

Department of Justice, San Francisco, California; Matthew

M. Yelovich, Cleary Gottlieb Steen & Hamilton LLP, Palo

Alto, California; Benjamin S. Kingsley, Fenwick & West

LLP, San Francisco, California; Andrew F. Dawson, Keker

Van Nest & Peters LLP, San Francisco, California; for

Plaintiff-Appellee.

Christopher J. Cariello (argued), Orrick Herrington &

Sutcliffe LLP, New York, New York; Aravind

Swaminathan, Orrick Herrington & Sutcliffe LLP, Seattle,

Washington; Amari L. Hammonds, Orrick Herrington &

Sutcliffe LLP, Los Angeles, California; for Defendant-

Appellant.

Jeffrey R. Babbin and Nathan J. Guevremont, Wiggin &

Dana LLP, New Haven, Connecticut; Anjali Dalal, Wiggin

and Dana LLP, New York, New York; Gia L. Cincone,

NACDL Amicus Committee, San Francisco, California; for

Amici Curiae National Association of Criminal Defense

Lawyers and Due Process Institute.

USA V. SULLIVAN 5

Nathan R. Morales, Stoel Rives LLP, Portland, Oregon;

Matthew D. Segal, Stoel Rives LLP, Sacramento, California;

for Amici Curiae Cloud Security Alliance and Security

Innovation Network.

OPINION

McKEOWN, Circuit Judge:

Cybersecurity has become a major preoccupation of

businesses as network hacks and data breaches multiply.

Companies now turn to seasoned experts to address these

challenges. Among the ranks of these experts is Joseph

Sullivan, who served as the Chief Security Officer (“CSO”)

for Uber Technologies (“Uber”) from 2015 to 2017. When

he began at Uber, Sullivan’s reputation was that of a “world-

class” cybersecurity expert, with a stint as an Assistant U.S.

Attorney and several years of private-sector leadership

experience under his belt. This case arose from choices

Sullivan made as Uber’s CSO in the wake of a major data

breach—specifically, his efforts to cover up that breach,

even as Uber underwent investigation by the Federal Trade

Commission (“FTC”) into the company’s data security

practices.

When the breach and its cover-up came to light after

having remained hidden for over a year, the government

brought criminal charges against Sullivan. A jury convicted

him of obstruction of justice and misprision of a felony. On

appeal, Sullivan challenges several jury instructions, the

sufficiency of the evidence, and an evidentiary ruling. We

affirm.

6 USA V. SULLIVAN

Background

In 2014, Uber experienced a data breach. A hacker

discovered an Amazon Web Services (AWS) “key”—a type

of log-in—embedded in code displayed publicly on GitHub,

a platform on which developers store and sometimes share

code. The hacker used the key to access the troves of data

that Uber stored privately on AWS. From the AWS database,

the hacker downloaded sensitive information pertaining to

tens of thousands of Uber drivers.

Shortly after this breach became public, the FTC

commenced an investigation into Uber’s data security

practices, including its storage of rider and driver

information on AWS and the company’s “alleged deceptive

statements” about those practices.

In 2015, Uber hired Sullivan as its CSO. In August 2016,

Sullivan took on the additional title of Deputy General

Counsel. By then, Sullivan was very involved in Uber’s

response to the FTC’s ongoing investigation: He made a

presentation to FTC staff on Uber’s data security program,

and he testified before the Commission in an investigational

hearing, including on Uber’s practices of data encryption. He

also supervised the preparation of at least two of Uber’s

official statements to the FTC.

Another data breach occurred in October 2016. Hackers

gained access to Uber’s private account on GitHub—the

same platform as in the 2014 attack. Embedded in the code

stored in that account, the hackers found AWS keys—the

same types of keys, discovered in a similar way, as in the

2014 attack. The hackers used the keys to access Uber’s

AWS datastore and download the names and driver’s license

numbers of some 600,000 individuals—the same type of

USA V. SULLIVAN 7

breach on the same infrastructure, at an even larger scale, as

in the 2014 attack. The downloaded data was unencrypted.

Despite the similarities between the 2016 incident and

the 2014 incident that the FTC was already investigating, no

one at Uber informed the FTC of this new breach. Instead,

unbeknownst to federal officials, Sullivan and a group of

Uber staffers decided to track down the hackers and pressure

them into signing a non-disclosure agreement (“NDA”) that

purported to re-characterize the hack as “research” into

“vulnerabilities” under Uber’s Bug Bounty Program.

Through bug bounty programs, companies solicit and

reward external security researchers’ discovery and

disclosure of their systems’ vulnerabilities. See Jasmine

Arooni, Debugging the System: Reforming Vulnerability

Disclosure Programs in the Private Sector, 73 Fed. Comm.

L.J. 443, 448–50 (2021). In ostensible exercise of the Bug

Bounty Program, Uber paid the hackers $100,000 in

exchange for their signatures on an NDA and an agreement

to delete the downloaded data. Sullivan was involved in

drafting the NDA and ultimately informed Travis Kalanick,

then Uber’s Chief Executive Officer, that the hackers had

signed the “contract.” 1 Sullivan did not inform Uber’s

general counsel of these developments, despite telling other

employees to the contrary.

Sullivan also did not correct old statements, and instead

signed off on new statements, to the FTC that Uber’s stores

of private data on AWS were encrypted, even though the

breach had exposed the fact that some of this data was

unencrypted. Sullivan did so despite his and his team’s

1

The NDAs were initially signed with the hackers’ pseudonyms. After

further investigation by Uber, the agreements were subsequently re-

signed with the hackers’ real names.

8 USA V. SULLIVAN

awareness that he “was just deposed on this specific topic”

and that news of the breach would “play very badly based on

previous assertions” to the FTC about data encryption. In the

fall of 2017, Uber hired a new CEO, Dara Khosrowshahi.

Soon after, Sullivan informed Khosrowshahi of the hack, but

he omitted and misrepresented key details: He falsely stated

that no data had been downloaded; mischaracterized the

timing of the payment to the hackers; and omitted the

magnitude of the breach and the amount of money paid to

resolve it. When Khosrowshahi discovered the truth, he fired

Sullivan and publicly disclosed the breach.

Upon learning of the breach, the FTC revised its

complaint against Uber, withdrew acceptance of its original

consent agreement with Uber, and prepared a new consent

agreement that would impose additional reporting

obligations on Uber. The revised complaint specifically

referenced the 2016 data breach and the state of Uber’s data

security as of November 2016.

Meanwhile, federal prosecutors brought felony charges

against one of the hackers, Vasile Mereacre, for violating the

Computer Fraud and Abuse Act (“CFAA”), 18 U.S.C.

§ 1030. In 2019, Mereacre pled guilty. Criminal charges

were also brought against Sullivan. Sullivan was then tried

and convicted for obstruction of justice and misprision of a

felony. After sentencing, Sullivan moved for a judgment of

acquittal or a new trial on the grounds that the district court

erred in formulating the jury instructions and in admitting

Mereacre’s guilty plea into evidence; and that the evidence

of his conviction was insufficient as a matter of law. The

court denied his motion. We have jurisdiction under 28

U.S.C. § 1291.

USA V. SULLIVAN 9

Analysis

I. The Jury Instructions—Obstruction Conviction

Sullivan claims error with respect to two of his proposed

jury instructions regarding the obstruction conviction—the

“nexus” instruction and the “duty to disclose” instruction.

A. Nexus Instruction

We review de novo the district court’s rejection of

Sullivan’s proposed “nexus” instruction, which would have

required the jury to find that “there was a nexus between the

defendant’s conduct and the pending FTC proceeding.” 2

United States v. Munoz, 412 F.3d 1043, 1046 (9th Cir. 2005)

(reviewing de novo a claim that “a jury instruction misstated

an element of the charged offense”). The proposed

instruction did not define “nexus.”

Section 1505 provides that “[w]hoever corruptly, or by

threats or force, or by any threatening letter or

communication influences, obstructs, or impedes or

endeavors to influence, obstruct, or impede the due and

proper administration of the law under which any pending

proceeding is being had before any department or agency of

the United States . . . [s]hall be fined under this title,

imprisoned not more than 5 years or, if the offense involves

international or domestic terrorism (as defined in [S]ection

2331), imprisoned not more than 8 years, or both.” 18 U.S.C.

§ 1505.

2

After some back-and-forth, the parties ultimately agreed that a Section

1505 conviction necessitates a finding of a nexus between the allegedly

obstructive conduct and the pending proceeding. They continue to

disagree as to whether an additional instruction as to a nexus finding was

required.

10 USA V. SULLIVAN

In accord with the statutory language, the jurors were

instructed: “For the defendant to be found guilty [under

Section 1505], the government must prove each of the

following elements beyond a reasonable doubt: First, there

was a proceeding pending before a department or agency of

the United States; Second, the defendant was aware of the

proceeding; and Third, the defendant intentionally

endeavored corruptly to influence, obstruct, or impede the

pending proceeding.” This instruction precisely mirrors the

elements of Section 1505, as spelled out in United States v.

Price, 951 F.2d 1028, 1031 (9th Cir. 1991) (“First, there

must be a proceeding pending before a department or agency

of the United States. Second, the defendant must be aware of

the pending proceeding. Third, the defendant must have

intentionally endeavored corruptly to influence, obstruct or

impede the pending proceeding.” (citations omitted)).

Ninth Circuit precedent forecloses Sullivan’s argument.

We held in United States v. Bhagat that there is no “need to

supplement the Price instructions with additional elements,”

including a “nexus” element, for a conviction under Section

1505. 436 F.3d 1140, 1148 (9th Cir. 2006).

Sullivan’s counsel candidly acknowledged: “the Ninth

Circuit has held in a [Section] 1505 case that Aguilar’s nexus

requirement did not require a separate jury instruction to that

effect.” Sullivan asks us to overrule Bhagat, claiming that

we have authority to do so because the case is “clearly

irreconcilable” with intervening Supreme Court precedent.

Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en

banc). Sullivan cites three cases that he construes as

irreconcilable: United States v. Aguilar, 515 U.S. 593

(1995); Arthur Andersen LLP v. United States, 544 U.S. 696

(2005); and Marinello v. United States, 584 U.S. 1 (2018).

USA V. SULLIVAN 11

Although these cases support either a “nexus”

requirement or “nexus” instruction in their respective

contexts, none is clearly irreconcilable with Bhagat. To

begin, none of the cases concerns Section 1505. And, in each

case, the statutes, facts, or jury instructions created

ambiguities that called for clarification as to the existence of

a “nexus.” No such ambiguities exist in Bhagat or here.

The Section 1503 charge in Aguilar involved a

defendant’s statement in an investigation that was

“ancillary” to the proceeding covered by the statute. Aguilar,

515 U.S. at 599–601. The attenuation in the relationship

between Aguilar’s act and the covered proceeding

necessitated the Court’s clarification of Section 1503’s

implicit “nexus” requirement. Id. at 599. The Court in

Aguilar explicitly did not address jury instructions. Id. at

606.

Nor are the other cases cited by Sullivan irreconcilable

with Bhagat. In Marinello the prosecution was brought

under the Omnibus Clause of Section 7212(a) of the Internal

Revenue Code. 26 U.S.C. § 7212(a). That provision does not

refer to a “proceeding,” but only to “the due administration

of [the Internal Revenue Code].” 26 U.S.C. § 7212(a). The

district court “did not instruct the jury that it must find that

Marinello knew he was under investigation and intended

corruptly to interfere with that investigation.” Marinello,

584 U.S. at 5. Given the statute’s silence and the lack of jury

instruction as to either the defendant’s awareness of, or

intended effect upon, any investigation, the Court clarified

that the Omnibus Clause requires instruction that the

government must show a “‘nexus’ between the defendant’s

conduct and a particular administrative proceeding.” Id. at

13. Even if Arthur Andersen is intervening authority, and we

are dubious that it is, the jury instructions in that Section

12 USA V. SULLIVAN

1512 case erroneously conveyed that the defendant need not

even have “ha[d] in contemplation any particular official

proceeding.” 544 U.S. at 708.

The text of Section 1505, the wording of the Price

instructions, and the factual relevance of only one

proceeding distinguish Bhagat from Aguilar, Marinello, and

Arthur Andersen. Like Bhagat, this case involved only one

proceeding, of which the defendant was undisputedly aware.

Under Bhagat, the Price elements require a nexus by

implication, and no other jury instruction given here

undermined or contradicted that implication. Sullivan was

not entitled to an additional instruction that “merely

duplicates” what the jury had already been told. United

States v. Lopez-Alvarez, 970 F.2d 583, 597 (9th Cir. 1992).

Consistent with Bhagat, we conclude that nothing more was

needed. The district court did not err in declining to give

Sullivan’s proposed instruction. 3 Finding no error, we

decline to reach the question of harmlessness.

B. The “Duty to Disclose” Instruction

Sullivan also claims that the district court erred by

rejecting his proposed “duty to disclose” instruction: that, if

the basis of the obstruction-of-justice conviction was

Sullivan’s “withholding of information, the government

must prove beyond a reasonable doubt that [he] had a duty

3

Embedded in Sullivan’s arguments regarding the jury instructions is a

challenge to the sufficiency of the evidence as to obstruction, based on a

lack of nexus. Viewing the evidence in the light most favorable to the

prosecution, we conclude that a “rational trier of fact” could have found

that there was a nexus between Sullivan’s choices and the FTC

proceeding, Coleman v. Johnson, 566 U.S. 650, 654 (2012), whether

“nexus” is defined as “natural and probable effect” or as a “relationship

in time, causation, or logic.” Aguilar, 515 U.S. at 599.

USA V. SULLIVAN 13

to disclose that information to the FTC.” Sullivan contends

that, without this instruction, the jury may have convicted on

a theory that was invalid under Section 1505—that is,

inaction by a defendant under no duty to disclose. He urges

application of the Yates rule that “a verdict [is required] to

be set aside in cases where the verdict is supportable on one

ground, but not on another, and it is impossible to tell which

ground the jury selected.” Yates v. United States, 354 U.S.

298, 312 (1957), overruled on other grounds by Burks v.

United States, 437 U.S. 1 (1978).

The Yates rule applies only to disjunctive charges and

theories of culpability. United States v. Edwards, 303 F.3d

606, 641 (5th Cir. 2002) (“disjunctive legal theories”); Banks

v. Workman, 692 F.3d 1133, 1139 (10th Cir. 2012), cert.

denied sub nom. Banks v. Trammell, 569 U.S. 997 (2013)

(“disjunctive charges”). Thus, if multiple “ways in which an

offense may be committed” are alleged conjunctively in one

count, then “proof of any one of those acts conjunctively

charged may establish guilt,” and Yates is inapplicable.

United States v. Bonanno, 852 F.2d 434, 441 (9th Cir. 1988).

A tandem prosecution under Section 2(b) and a

substantive criminal statute presents conjunctive theories of

culpability. In this context, Section 2(b) “is considered

embodied in full in every federal indictment.” United States

v. Michaels, 796 F.2d 1112, 1118 (9th Cir. 1986), cert.

denied 479 U.S. 1038 (1987); United States v. Singh, 979

F.3d 697, 717 (9th Cir. 2020) (concerning jury instruction

and indictment under Section 2(b) “in conjunction with” the

substantive statute). Therefore, if a theory based on the

inaction of a defendant under no duty to disclose would be

valid under either Section 2(b) or Section 1505, then the

instruction was not in error.

14 USA V. SULLIVAN

Section 2(b) states: “[w]hoever willfully causes an act to

be done which if directly performed by him or another would

be an offense against the United States, is punishable as a

principal.” 18 U.S.C. § 2(b). “[U]nder [Section] 2(b), a

defendant may be convicted, even if he did not commit all

the elements of the offense.” United States v. Ubaldo, 859

F.3d 690, 702 (9th Cir. 2017). Section 2(b) also does not

require a defendant to have a duty to disclose if prosecuted

for inaction. Singh, 979 F.3d at 717–18 (concluding that the

defendant need not have a duty to disclose, so long as the

third party who does the act has such a duty). Sullivan

concedes that “Uber was duty-bound to respond to formal

FTC inquiries issued to Uber.” 4

We need not reach the question of validity under Section

1505. Because the legal theories under Section 1505 and

Section 2(b) are conjunctive, the validity under Section 2(b)

alone renders the omission of a duty-to-disclose instruction

proper.

II. Sufficiency of the Evidence—Misprision

Conviction

We now turn to Sullivan’s argument that the evidence of

his alleged misprision was insufficient as a matter of law.

We review de novo. See Munoz, 412 F.3d at 1048. We must

determine “whether, after viewing the evidence in the light

4

Sullivan makes a sufficiency-of-the-evidence challenge as to his willful

causation of nondisclosure, based solely on the fact that he disclosed the

2016 breach to Uber’s then-CEO. This argument is neither

comprehensive as to the scope of Sullivan’s alleged nondisclosure nor

supported by law. It therefore fails. We do not reach Sullivan’s

sufficiency-of-the-evidence challenge based on his lack of duty to

disclose, as we have concluded that no such duty is required for

conviction under Section 2(b).

USA V. SULLIVAN 15

most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond

a reasonable doubt.” United States v. Laney, 881 F.3d 1100,

1106 (9th Cir. 2018) (quoting United States v. Atkinson, 990

F.2d. 501, 502 (9th Cir. 1993) (en banc)).

Misprision is the crime of “having knowledge of the

actual commission of a felony” and “conceal[ing]” or failing

to “as soon as possible make known the same to some judge

or other person in civil or military authority under the United

States.” 18 U.S.C. § 4. To establish misprision, the

government is obliged to show that “the principal committed

and completed the felony alleged.” United States v.

Ciambrone, 750 F.2d 1416, 1417 (9th Cir. 1984). Here, that

meant proving that the hackers had “intentionally

accesse[d]” Uber’s computers “without

authorization . . . and thereby obtain[ed]” information from

those “protected computer[s],” in violation of the CFAA. 18

U.S.C. § 1030(a)(2).

The hackers’ use of stolen credentials to access

protected, private servers was a typical CFAA violation. See

hiQ Labs, Inc. v. LinkedIn Corp., 31 F.4th 1180, 1201 (9th

Cir. 2022) (holding that violation occurs “when a person

circumvents a computer’s generally applicable rules

regarding access permissions, such as username and

password requirements, to gain access to a computer”).

Nobody here argues that their access, and subsequent

downloading of data, was authorized beforehand. 5

5

We need not decide whether a bug bounty program may endow

qualified researchers with prior authorization to access protected

computers.

16 USA V. SULLIVAN

Sullivan argues that Uber’s post hoc authorization, via

the NDA, retroactively rendered the hackers’ access

authorized—thereby erasing their felony. But this is a false

premise, inconsistent with the most plain and natural reading

of the CFAA. In the statute, “without authorization”

modifies the present-tense verb “accesses.” 18 U.S.C.

§ 1030(a)(2). An actor’s authorization, or lack thereof, is

assessed at the moment of access. 6 Our prior decisions

support this reading. United States v. Nosal, 844 F.3d 1024,

1038 (9th Cir. 2016) (upholding a jury instruction that “[a]

person uses a computer ‘without authorization’ when the

person has not received permission” and noting that the jury

was to determine “whether such permission was given”)

(emphases added), overruled in part on other grounds by

Lagos v. United States, 584 U.S. 577 (2018); LVRC

Holdings LLC v. Brekka, 581 F.3d 1127, 1135 (9th Cir.

2009) (“[A] person uses a computer ‘without authorization’

under [the CFAA] . . . when the employer has rescinded

permission to access the computer and the defendant uses the

computer anyway.”) (emphasis added). Because the hackers

had not been given authorization by the time of access, their

6

Sullivan’s alternative interpretation would allow companies to “modify

the terms of authorization after initial access” and require courts to assess

“authorization” at some undetermined point after such modification. The

effects of that interpretation could endanger the existence of bug bounty

programs: If a company could apply modified terms retroactively, then

a good-faith researcher who had accessed a computer yesterday while

authorized could have that access retroactively deauthorized today.

Yesterday’s access might then constitute a violation of the CFAA.

Uncertainty regarding criminal liability could deter participation in bug

bounty programs. And allowing post hoc authorization could encourage

extortionary schemes: hackers could download sensitive data, demand a

data ransom, and then insist that the company alter its bug bounty

program terms to retroactively immunize their conduct.

USA V. SULLIVAN 17

access was unauthorized. Their illegal conduct could not be

laundered through an NDA.

The government also needed to show that Sullivan had

“full knowledge” “that the principal[] had committed and

completed the felony alleged.” Lancey v. United States, 356

F.2d 407, 409 (9th Cir. 1966). Sullivan claims that, even if

the hackers were unauthorized within the meaning of the

CFAA, he reasonably believed that the NDA

recharacterizing the hackers’ conduct as part of Uber’s Bug

Bounty Program retroactively authorized the breach—

thereby cleansing the felonious access of its illegality. Given

this belief, he argues, he could not have had “full

knowledge” as required for conviction of misprision.

The evidence does not support this argument. By

November 15, 2016, Sullivan knew that an unauthorized

actor had “compromised” Uber’s accounts and potentially

“acquired” data. According to his own arguments, he

“believed that the hackers’ conduct was unauthorized at the

time it occurred,” and he “view[ed] the legality of [the

hackers’] conduct as turning on a Bug Bounty agreement.”

That is, before the NDA was signed, he knew and believed

that their conduct was illegal. If the NDA were really meant

to cleanse the felony, it would have described the incident

accurately, rather than omitting the fact that the hackers

downloaded Uber’s data. And the evidence suggests that

Sullivan’s beliefs did not change even after the signing: A

year after the incident, Sullivan referred to the hackers as

“unauthorized” in an email to Uber’s new CEO. Uber’s

lawyers, too, continued to characterize the hackers as

“unauthorized.”

Finally, the government had to show that Sullivan knew

that the conduct in question was a felony punishable by more

18 USA V. SULLIVAN

than a year in prison. “The defendant need not know the

precise term of imprisonment authorized by law, but at least

[he] must know the potential punishment exceeds one year

in prison.” United States v. Olson, 856 F.3d 1216, 1224 (9th

Cir. 2017). Sullivan had been an Assistant U.S. Attorney in

a “Computer Hacking and IP Unit.” He had helped prosecute

a CFAA violation; the plea agreement, which he signed,

noted a maximum sentence of five years. Sullivan’s unusual

“sophistication” could also be inferred “from [his]

experience” as a prosecutor and cybersecurity professional.

Id.

As detailed above, a rational juror could have found each

essential element of misprision beyond a reasonable doubt.

III. Admission of Guilty Plea

Finally, we address Sullivan’s contention that the district

court abused its discretion in permitting the introduction of

the guilty plea agreement signed by one of the hackers. We

review for abuse of discretion a district court’s evidentiary

ruling under Federal Rule of Evidence 403, which is not to

be overturned unless it is “manifestly erroneous.” United

States v. Tsarnaev, 595 U.S. 302, 322–23 (2022) (quoting

Gen. Elec. Co. v. Joiner, 522 U.S. 136, 142 (1997))

There is no manifest error here. In providing that a court

“may exclude relevant evidence if its probative value is

substantially outweighed by a danger of . . . unfair

prejudice,” Rule 403 gives the district court considerable

leeway. Fed. R. Evid. 403. The probative value of the plea

agreement is unquestionable. The agreement served as

evidence of the specific crimes to which one of the hackers

had pled guilty, including a felonious violation of the CFAA.

The agreement thus proves an element of the crime with

which Sullivan was charged. Even if we assess the plea

USA V. SULLIVAN 19

agreement’s probative value only “relative to the other

evidence in the case,” such as the hacker’s testimony, that

value is still significant. Old Chief v. United States, 519 U.S.

172, 185 (1997).

Any unfair prejudice to the defendant resulting from the

plea’s admission into evidence does not substantially

outweigh the plea’s probative value. Because the hacker and

Sullivan pleaded guilty to separate crimes, the fact of this

plea does not improperly impute blame for the hacker’s

conduct to Sullivan. Cf. Baker v. United States, 393 F.2d

604, 614 (9th Cir. 1968) (stating the general rule that “guilty

pleas of co-defendants cannot be considered as evidence

against those on trial,” so that the defendant’s guilt is

“determined upon the evidence against him, not on whether

a Government witness or co-defendant has pleaded guilty to

the same charge”), cert. denied 393 U.S. 836 (1968).

Contrary to Sullivan’s arguments, the plea also does not

attribute to him any particular belief. Nor are the facts within

the plea likely to cause unfair prejudice, as they were subject

to a limiting instruction by the district court that they were

not to be taken for the truth of the matter asserted. The

district court gave “adequate cautionary instruction” to

mitigate prejudice. United States v. Halbert, 640 F.2d 1000,

1006 (9th Cir. 1981).

We conclude that the court did not abuse its discretion in

admitting the plea and therefore decline to reach the question

of harmlessness.

Conclusion

The jury’s verdict in this case underscores the

importance of transparency even in failure situations—

especially when such failures are the subject of federal

investigation. The verdict is not tainted by any of the claimed

20 USA V. SULLIVAN

instructional or evidentiary errors, nor can it be overturned

for insufficiency of the evidence. We affirm the district court

in all relevant respects.

AFFIRMED.