Petition for Writ of Certiorari — Paul Engstrom, Petitioner v. United States
Supreme Court briefJul 17, 2026
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APPENDICES
INDEX TO APPENDICES
Appendix A: U.S. Court of Appeals Ninth Circuit Opinion Affirming
Conviction and Sentence (February 5, 2026) ............................... App-1
Appendix B: U.S. District Court Amended Judgment (February 27, 2024) ... App-34
Appendix C: U.S. Court of Appeals Ninth Circuit Order Denying Petition
for Rehearing (April 22, 2026) ..................................................... App-46
Case: 24-1878, 02/05/2026, DktEntry: 66.1, Page 1 of 26
FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
PAUL ENGSTROM,
No. 24-1878
D.C. No.
2:21-cr-00190ART-EJY-1
OPINION
Defendant - Appellee.
Appeal from the United States District Court
for the District of Nevada
Anne R. Traum, District Judge, Presiding
Argued and Submitted September 17, 2025
San Francisco, California
Filed February 5, 2026
Before: David F. Hamilton, Ryan D. Nelson, and Patrick J.
Bumatay, Circuit Judges. *
Opinion by Judge R. Nelson
*
The Honorable David F. Hamilton, United States Circuit Judge for the
Court of Appeals, 7th Circuit, sitting by designation.
Appendix A
App-1
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2
USA V. ENGSTROM
SUMMARY **
Criminal Law
The panel reversed the district court’s decision that Paul
Engstrom was eligible for safety valve relief under 18 U.S.C.
§ 3553(f), vacated the sentence imposed below the statutory
minimum, and remanded for resentencing in a case in which
Engstrom pleaded guilty to drug-related crimes.
The district court imposed the below-minimum sentence
after holding a resentencing hearing under Fed. R. Crim. P.
35. Rejecting Engstrom’s argument that this court could not
review the district court’s decision to hold the Rule 35
resentencing hearing, the panel reviewed that decision for
plain error, and held that because the district court identified
a clear error of a “technical” kind in the original sentencing
hearing, the district court’s choice to conduct the Rule 35
hearing was not plain error.
The panel held that Engstrom is not eligible for safety
valve relief for two reasons.
First, Engstrom failed to provide a complete debrief to
the government before sentencing, as required by 18 U.S.C.
§ 3553(f)(5). The panel rejected the district court’s
approach which proceeded as if virtually any truthful
statement given upon arrest, a truthful guilty plea allocution,
or additional statements may be enough. Engstrom did not
provide a complete disclosure. The district court never
asked him whether he had given all the information about
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
Appendix A
App-2
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USA V. ENGSTROM
3
the crime to the government, nor did the record support the
existence of such disclosure. Engstrom never claimed that
such disclosure occurred. Given these circumstances,
Engstrom could not qualify for safety valve relief.
Second, Pulsifer v. United States, 601 U.S. 124 (2024),
forecloses safety valve relief. In Pulsifer, which was issued
during this appeal, the Supreme Court adopted a disjunctive
reading of 18 U.S.C. § 3553(f)(1), holding that if a defendant
has even one of the three listed offenses, then that defendant
becomes ineligible for safety valve relief. Because
Engstrom had a prior 3-point offense for conspiracy to
distribute a controlled substance, Engstrom is categorically
ineligible. The panel rejected Engstrom’s arguments (1) that
it violates his due process right to fair notice to apply
Pulsifer on direct appeal akin to an impermissible ex post
facto law; and (2) that even if Pulsifer applies on direct
appeal, the government cannot satisfy the third and fourth
prongs of plain error review.
COUNSEL
Mina Chang (argued), Peter H. Walkingshaw, and Daniel D.
Hollingsworth, Assistant United States Attorneys; Adam M.
Flake, Appellate Chief; Sigal Chattah and Jason M. Frierson,
United States Attorneys; Office of the United States
Attorney, United States Department of Justice, Las Vegas,
Nevada; for Plaintiff-Appellant.
Houston Goddard (argued), Goddard Pope PLLC, Nashville,
Tennessee; Kristi A. Hughes, Law Office of Kristi A.
Hughes, Cardiff, California; for Defendant-Appellee.
Appendix A
App-3
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USA V. ENGSTROM
OPINION
R. NELSON, Circuit Judge:
The government appeals the district court’s order
sentencing Paul Engstrom to 46 months’ imprisonment for
drug-related crimes. The district court sentenced him below
the statutory minimum, granting him safety valve relief
under 18 U.S.C. § 3553(f). But Engstrom was ineligible for
safety valve relief since he failed to provide a complete
debrief to the government before sentencing. He is also
ineligible under Pulsifer v. United States, 601 U.S. 124
(2024), which applies to cases pending on direct appeal. We
therefore reverse and remand to the district court for
resentencing.
I
Paul Engstrom pleaded guilty to two criminal counts—
Conspiracy to Distribute a Controlled Substance and Money
Laundering Conspiracy.
Under the plea agreement,
Engstrom specified that he and his coconspirators agreed to
distribute 500 grams or more of cocaine, triggering a
five-year mandatory-minimum sentence under 21 U.S.C.
§§ 846, 841(a)(1), and (b)(1)(B)(ii). Engstrom agreed that
he did not qualify for safety valve relief under 18 U.S.C.
§ 3553(f) and would not request such relief to avoid the
mandatory minimum.
In 2024, the district court held a sentencing hearing. It
calculated that under the sentencing guidelines, Engstrom
fell within Criminal History Category III and that his total
offense level was 33. The parties had agreed to recommend
a combined six-level downward variance, which brought
Appendix A
App-4
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5
Engstrom’s offense level to 27, with a recommended
sentence range of 87 to 108 months.
The government recommended that the district court
apply the requested variance and sentence Engstrom at the
bottom of that reduced range. Engstrom urged the court to
sentence him to the mandatory minimum of 60 months. The
district court then asked Engstrom’s probation officer why
Engstrom was not eligible for safety valve relief. The officer
explained that Engstrom could not receive safety valve relief
as he had not met the statutory requirement under
§ 3553(f)(5) for debriefing the government.
The district court imposed a sentence of 70 months of
detention, granting Engstrom a variance beyond the
government’s recommendation. The court granted this
lower sentence considering the difficult pre-trial detention
Engstrom faced during the COVID-19 pandemic and
mitigating evidence. The district court explained that it had
given two coconspirators a two-level downward variance. In
so doing, the district court attempted to give those
defendants relief akin to the safety valve despite their being
ineligible for such relief. The district court justified
Engstrom’s additional downward variance by sentencing
him similarly to his coconspirators, stating that it intended to
give him the benefit of the safety valve.
Soon after, the district court scheduled a hearing under
Federal Rule of Criminal Procedure 35, which provides that
a district court may, “[w]ithin 14 days after sentencing . . .
correct a sentence that resulted from arithmetical, technical,
or other clear error.” At the Rule 35 resentencing hearing,
the district court explained that in the original hearing, it
deducted two points under the § 3553(a) factors to give
Engstrom the benefit of the safety valve; but the district court
Appendix A
App-5
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USA V. ENGSTROM
gave Engstrom a sentence above the mandatory minimum
along with a supervised release term set at the mandatory
minimum.
The district court once again asked the probation officer
why Engstrom was not eligible for safety valve relief. The
probation officer again explained that Engstrom had not met
the statutory debrief requirement and had stipulated in his
plea agreement that he was ineligible. The district court
asked Engstrom whether he had met with the government.
Engstrom responded that he had not; he understood the plea
agreement to mean he was not to seek safety valve relief.
The district court asked the government what was
required to satisfy the statutory debrief requirement. The
government responded that a defendant typically meets a
prosecutor and shares information about the case.
The district court explained that while the plea
agreement bound Engstrom and the government, the court
was not so bound; it needed to make an independent
assessment whether Engstrom was safety valve eligible. In
the district court’s view, the statute “does not specify a form,
place, or manner of disclosure,” so a statement upon arrest
or allocution could be enough if the defendant provided
“truthful and complete information in good faith.” The
district court concluded that Engstrom was eligible for the
safety valve since he truthfully “said the most in open court”
about the conspiracy among his codefendants.
The
government objected to the safety valve relief.
The district court revisited “the other aspects” of
Engstrom’s sentence (by considering the § 3553 factors
afresh) and recalculated it under § 3553(a). Engstrom’s
recalculated offense level was 25. The government
requested a sentence of 70 months’ imprisonment, the low
Appendix A
App-6
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USA V. ENGSTROM
7
end of the sentencing guideline range. The district court
imposed a 46-month sentence, followed by two years of
supervised release to run on concurrent counts. The district
court noted that this sentence was a variance below the
mandatory minimum as permitted by the applicable safety
valve provision.
The government moved for reconsideration, arguing that
the district court had erred in applying the safety valve
because Engstrom had not met the debrief requirement.
While that motion was pending, the permissible time to
correct the resentencing error lapsed. See FED. R. CRIM. P.
35. The Supreme Court also decided Pulsifer v. United
States, which held that to be eligible for safety valve relief
under § 3553(f)(1), a defendant must satisfy all three
statutory criminal history requirements. 601 U.S. 124, 153
(2024). In other words, a defendant could not have more
than four criminal history points, or a prior three-point
offense, or a prior two-point violent offense. Id. This
decision abrogated our decision in United States v. Lopez,
which held that a defendant was eligible for safety valve
relief unless all three of the criminal history requirements
applied to that defendant, rather than just one. 998 F.3d 431,
444 (9th Cir. 2021); see also United States v. Lopez, 58 F.4th
1108 (9th Cir. 2023) (R. Nelson, J., statement regarding
denial of rehearing en banc). The government also argued
that under Pulsifer, Engstrom’s prior undisputed three-point
conviction for conspiracy to distribute controlled substances
in 2017 disqualified him for safety valve relief. The
government appealed.
II
The district court had jurisdiction under 18 U.S.C.
§ 3231. We have appellate jurisdiction under 18 U.S.C.
Appendix A
App-7
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USA V. ENGSTROM
§ 3742 and 28 U.S.C. § 1291. Engstrom’s motion for
judicial notice (Dkt. No. 64) stating that he was housed at a
residential reentry center with a release date of December
20, 2025, is granted. Engstrom’s release from incarceration
does not moot this case for two reasons. First, Engstrom
remains on supervised release, meaning a live case or
controversy continues despite any release. United States v.
Verdin, 243 F.3d 1174, 1178 (9th Cir. 2001). Second, our
decision to vacate and remand could (and here will) result in
Engstrom being resentenced and sent back to prison,
ensuring a live case or controversy. See Eagles v. United
States ex rel. Samuels, 329 U.S. 304, 307–08 (1946); see
Garcia v. Lawn, 805 F.2d 1400, 1402 (9th Cir. 1986); United
States v. Lira–Barraza, 941 F.2d 745, 746 n.1 (9th Cir. 1991)
(en banc).
The parties dispute whether we can review the district
court’s order holding a Rule 35 resentencing hearing. The
government argues that it only forfeited its argument by not
objecting. Thus, it asserts we should review for plain error.
United States v. Valencia-Barragan, 608 F.3d 1103, 1108
(9th Cir. 2010). But Engstrom argues that the government
waived this challenge by not objecting, thus precluding our
review.
No waiver occurred. “[F]orfeiture is the failure to make
a timely assertion of a right, whereas waiver is the
intentional relinquishment or abandonment of a known
right.” United States v. Perez, 116 F.3d 840, 845 (9th Cir.
1997) (cleaned up). “Forfeited rights are reviewable for
plain error, while waived rights are not.” Id. If a party
“invite[s] the error, and relinquishe[s] a known right, then
the error is waived and therefore unreviewable.” Id.
Appendix A
App-8
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9
The government did not object to the district court’s Rule
35 hearing. But failing to object to a district court’s
sentencing decision—or even affirmatively endorsing it—is
not waiver. United States v. Depue, 912 F.3d 1227, 1233
(9th Cir. 2019). Waiver occurs only if “there [is] evidence
indicating the [parties] knew of their rights and chose to
relinquish them anyway.” Id.; see also Perez, 116 F.3d at
845 (collecting cases showing knowing relinquishment of
right).
The district court called the Rule 35 hearing to correct “a
possible clear error” in its sentencing. The district court did
not permit the government a reasonable chance to object to
the Rule 35 hearing and just asked the government whether
Engstrom was safety valve eligible.
Engstrom characterizes these events as the government
tactically choosing not to object to the Rule 35 hearing. But
nothing suggests that the government knowingly chose not
to object. See Depue, 912 F.3d at 1233. Rather, the district
court quickly turned to the safety valve issue without
discussing the appropriateness of resentencing. While the
government ideally should have interrupted to object,
forfeiture rather than waiver occurred, and plain error review
applies. See United States v. Grant, 727 F.3d 928, 933 (9th
Cir. 2013); Perez, 116 F.3d at 845.
We review the district court’s statutory interpretation of
the safety valve provision de novo and its factual
determination that the defendant is eligible for relief for clear
error. United States v. Mejia-Pimental, 477 F.3d 1100, 1103
(9th Cir. 2007). This standard of review applies both to the
statutory debrief requirement issue and the Pulsifer issue.
Appendix A
App-9
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USA V. ENGSTROM
III
The district court’s choice to hold a Rule 35 resentencing
hearing is not plain error. Plain error requires: “(1) there is
an error; (2) the error is clear or obvious, rather than subject
to reasonable dispute; (3) the error affected [appellant’s]
substantial rights, which in the ordinary case means it
affected the outcome of the district-court proceedings; and
(4) the error seriously affected the fairness, integrity or
public reputation of judicial proceedings.” United States v.
Walter-Eze, 869 F.3d 891, 911 (9th Cir. 2017) (cleaned up).
The government’s argument falls at the threshold prong.
A district court “may not modify a term of imprisonment
once it has been imposed” except in several enumerated
circumstances. 18 U.S.C. § 3582(c). Among them, a district
court “may modify an imposed term of imprisonment to the
extent otherwise expressly permitted by statute or by Rule
35 of the Federal Rules of Criminal Procedure.”
Id. § 3582(c)(1)(B). Rule 35 states that “[w]ithin 14 days
after sentencing, the court may correct a sentence that
resulted from arithmetical, technical, or other clear error.”
FED. R. CRIM. P. 35(a).
The district court did not err when it concluded that it
needed to resentence Engstrom. Under the safety valve
provision, “a court is to sentence a defendant without regard
to any statutory minimum if it finds that” the five statutory
criteria in § 3553(f) are met. Pulsifer, 601 U.S. at 128
(cleaned up). The district court has an independent duty to
determine whether the safety valve applies and, if so, it then
sentences the defendant without regard to the statutory
minimum for a particular offense. Id.
When the district court originally sentenced Engstrom, it
stated that two of his codefendants fully benefited from the
Appendix A
App-10
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USA V. ENGSTROM
11
safety valve, and the court wanted to “give that benefit to
[Engstrom] as well.” The district court then applied a
downward variance on the calculated guidelines range to
sentence Engstrom to 70 months of imprisonment rather than
87 (the low end of the guidelines range). A sentence of 70
months, however, exceeded the applicable mandatory
minimum of 60 months. See 21 U.S.C. § 841(b)(1)(B).
The district court’s actions were clear error of a
“technical” kind under Rule 35(a). See Technical, OXFORD
ENGLISH DICTIONARY (online ed. 2009) (sense 2.d)
(involving “strict legal interpretation”); United States v. M.
M., 23 F.4th 216, 221 (3d Cir. 2021) (“arithmetical and
technical errors” are “easily identifiable and readily
ascertained from the sentencing proceeding and judgment,”
akin to misapplying “mandatory” sentencing conditions).
The district court thought that it erred by considering the
mandatory minimum once it made clear that it was giving
Engstrom the benefit of the safety valve. See United States
v. Mejia-Pimental, 477 F.3d 1100, 1109 (9th Cir. 2007).
In such a situation, a district court has the latitude to
conduct a Rule 35 rehearing to correct the technical error. If
the district court wanted to “give [the benefit of the safety
valve] to Engstrom,” then it needed to sentence him without
regard to the mandatory minimum. Whether the district
court was correct that Engstrom should have received the
benefit of the safety valve (it was not), it had the latitude
under Rule 35 to correct its perceived technical error of
considering a mandatory minimum sentence for a defendant
it thought should benefit from safety valve relief. Since the
district court identified a clear error in the original
sentencing hearing, conducting a Rule 35 rehearing was not
error. The government’s argument thus fails on the first step
of plain error review. See Walter-Eze, 869 F.3d at 911
Appendix A
App-11
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USA V. ENGSTROM
(reversal for plain error is appropriate where “(1) there is an
error”).
IV
Engstrom is not eligible for safety valve relief for two
reasons. First, Engstrom did not satisfy the statutory debrief
requirement in § 3553(f)(5). Second, Pulsifer also precludes
Engstrom from safety valve relief.
A
1
The district court failed to abide by the three “basic rules
of statutory interpretation”: “(1) Read the statute; (2) read
the statute; (3) read the statute!” JUSTICE AMY CONEY
BARRETT, LISTENING TO THE LAW: REFLECTIONS ON THE
COURT AND CONSTITUTION 212 (2025) (quoting HENRY J.
FRIENDLY, Mr. Justice Frankfurter and the Reading of
Statutes, in BENCHMARKS 196, 202 (1967)). Under the
statute, a defendant is eligible for safety valve relief only if
“not later than the time of the sentencing hearing, the
defendant has truthfully provided to the government all
information and evidence the defendant has concerning the
offense or offenses that were part of the same course of
conduct or of a common scheme or plan.” § 3553(f)(5)
(emphasis added). But “the fact that the defendant has no
relevant or useful other information to provide or that the
Government is already aware of the information shall not
preclude a determination by the court that the defendant has
complied with this requirement.” Id.
To satisfy the debrief requirement, Engstrom therefore
should have provided “all the information available to him,
regardless of whether it was useful or already known to the
government.” United States v. Real-Hernandez, 90 F.3d 356,
Appendix A
App-12
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13
361 (9th Cir. 1996). A defendant seeking safety valve relief
need not provide such information to every prosecutor who
interacted with him. Providing such information to any
prosecutor attributes the information to the government. Id.
But the debrief requirement mandates that a defendant
affirmatively discloses everything he knows about the
relevant crimes to a prosecutor or law enforcement officer
“not later than the time of the sentencing hearing.” Id.;
§ 3553(f)(5).
And this must be a complete, rather than a partial,
debrief. The district court concluded that, under United
States v. Schreiber, 191 F.3d 103 (2d Cir. 1999), disclosure
directed towards the court or partial disclosure of relevant
information to the government suffices. In Schreiber, the
Second Circuit held that the “safety valve statute does not
specify the form, place, or manner of disclosure[,]” and that
a “defendant may comply with the safety valve without ever
submitting to a debriefing.” Id. at 108. According to the
district court, Mejia-Pimental, 477 F.3d 1100, adopted this
principle. There, we held that “as long as a defendant’s
ultimate proffer is truthful and complete, he has satisfied the
fifth safety valve criterion, regardless of timing or
motivations.” Id. at 1106.
The district court extended Mejia-Pimental, which
requires a complete proffer, too far. There, Mejia-Pimental
had three sentencing hearings due to intervening factors in
the lead case. Id. at 1102. On his third sentencing hearing,
he contacted the government to provide a safety valve
proffer. Id. at 1103. The government refused, and instead
Mejia-Pimental wrote and mailed the government a
comprehensive letter detailing all his involvement, and his
knowledge of others in the charged offense. Id. We held that
this satisfied § 3553(f)(5) as the defendant “fully disclos[ed]
Appendix A
App-13
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USA V. ENGSTROM
his knowledge of the charged offense conduct.” Id. at 1106.
Critical to this analysis, however, was that Mejia-Pimental
affirmatively reached out to prosecutors by letter to provide
this information, and the information was neither “false [nor]
incomplete.” Id. at 1103. Accordingly, Mejia-Pimental
shows only that a defendant can affirmatively meet the
requirement—at least when the government refuses a
meeting—without a formal debrief.
But the statute still requires a defendant to affirmatively
provide “all information and evidence the defendant has
concerning the offense” to the government not later than the
time of the sentencing hearing. § 3553(f)(5) (emphasis
added). The district court read this requirement out of the
statute, characterizing it as “no requirement at all,”
proceeding as if virtually any truthful statement “given upon
arrest,” a truthful “guilty plea allocution,” or “[a]dditional
statements” may be enough.
We reject this approach. The statute requires that, “not
later than the time of the sentencing hearing, the defendant
has [to] truthfully provide[] to the Government all
information and evidence the defendant has concerning the
offense or offenses.” § 3553(f)(5). And a district court must
meaningfully check that a defendant “provides truthful,
complete information before sentencing” to the government
when determining safety valve eligibility. Mejia-Pimental,
477 F.3d at 1105. The statutory disclosure required is a “tell
all you can tell requirement.” United States v. Shrestha, 86
F.3d 935, 939 (9th Cir. 1996) (cleaned up). At minimum,
“this information includes details concerning other parties to
the crime, such as the source who provided defendant with
the drugs and other persons in the chain of distribution, if
known.” Id. If “the defendant does not possess such
information,” he must still “communicate that fact to the
Appendix A
App-14
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USA V. ENGSTROM
government in order to qualify for the reduction.”
(cleaned up).
15
Id.
2
Engstrom thus did not meet the safety valve requirement.
He did not provide a complete disclosure. The district court
never asked him whether he had given all the information
about the crime to the government, nor did the record
support the existence of such disclosure. Engstrom never
claimed that such disclosure occurred. Given these
circumstances, Engstrom could not qualify for safety valve
relief.
B
Engstrom cannot benefit from the safety valve for an
additional reason. The Supreme Court’s decision in Pulsifer
v. United States, 601 U.S. 124 (2024), forecloses such relief.
1
The Supreme Court decided Pulsifer in March 2024,
shortly after Engstrom’s resentencing hearing, to resolve a
long-standing circuit split interpreting § 3553(f)(1). Under
this provision, a defendant can only be eligible for safety
valve relief if
(1) the defendant does not have—
(A) more than 4 criminal history points,
excluding any criminal history points
resulting from a 1-point offense, as
determined
under
the
sentencing
guidelines;
(B) a prior 3-point offense, as determined under
the sentencing guidelines; and
Appendix A
App-15
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USA V. ENGSTROM
(C) a prior 2-point violent offense, as
determined
under
the
sentencing
guidelines.
§ 3553(f)(1) (emphasis added).
Pulsifer addressed whether courts should read the word
“and” in this provision conjunctively or disjunctively. 601
U.S. at 127. If read conjunctively, a defendant would be
safety valve ineligible only if he had all three listed types of
offenses in §§ 3553(f)(1)(A), (B), and (C). If read
disjunctively, a defendant would be safety valve ineligible if
he had any one of the three listed types of offenses.
In Pulsifer, the Supreme Court adopted the disjunctive
view, holding that if a defendant has even one of the three
offenses listed in § 3553(f)(1) then that defendant becomes
ineligible for safety valve relief. 601 U.S. at 153. Pulsifer
abrogated the Ninth Circuit’s prior decision in Lopez, 998
F.3d 431, in which we had adopted the conjunctive reading.
See United States v. Hernandez, 105 F.4th 1234, 1237 n.1
(9th Cir. 2024); Salas v. United States, 116 F.4th 830, 843
(9th Cir. 2024) (both stating that Pulsifer abrogated Lopez).
While § 3553(f)(1) did not disqualify Engstrom from
safety valve relief under Lopez, it does under Pulsifer.
Engstrom had a prior 3-point offense for conspiracy to
distribute a controlled substance (but neither of the other two
disqualifying offenses).
Therefore, under Pulsifer,
Engstrom is categorically ineligible for safety valve relief.
The district court rendered its sentence before the
Supreme Court issued Pulsifer. But ordinarily “an error is
plain if it is contrary to the law at the time of appeal.” United
States v. Macias, 789 F.3d 1011, 1019 n.4 (9th Cir. 2015)
(emphasis added); see Henderson v. United States, 568 U.S.
Appendix A
App-16
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17
266, 269 (2013) (“as long as the error was plain as of that
later time—the time of appellate review—the error is ‘plain’
within the meaning of the Rule”). Because Pulsifer was
issued during this appeal, it applies and means that the
district court’s conclusion that Engstrom qualified for safety
valve relief is plain error.
2
Engstrom argues that Pulsifer should not apply. First, he
contends that it violates his due process right to fair notice to
apply Pulsifer on direct appeal akin to an impermissible ex
post facto law. Second, he argues that even if Pulsifer
applies on direct appeal, the district court did not plainly err
since the government cannot satisfy the third and fourth
prongs. Both arguments fail.
a
The due process right to fair notice, while housed within
the Due Process Clause, bears close relation to the
Constitution’s prohibition on ex post facto laws. The
Constitution states that “No Bill of Attainder or ex post facto
Law shall be passed.” U.S. Const. art. I, § 9, cl. 3; see also
U.S. Const. art. I, § 10, cl. 1. “As the text of the Clause
makes clear, it is a limitation upon the powers of the
Legislature and does not of its own force apply to the
Judicial Branch of the government.” Rogers v. Tennessee,
532 U.S. 451, 456 (2001) (cleaned up; applying parallel limit
on state ex post facto laws). Even so, “limitations on ex post
facto judicial decisionmaking are inherent in the notion of
due process.” Id. Unpacking the historical origins of this
principle illustrates why Engstrom’s argument proves
unavailing. The due process right to fair notice evolved from
the constitution’s more general prohibition on ex post facto
laws. And that history supports applying Pulsifer.
Appendix A
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USA V. ENGSTROM
The impetus for both the Constitution’s ex post facto
prohibition, and the Constitution’s prohibitions on Bills of
Attainder stems from English practices during the reign of
the Stuart monarchs. See U.S. Const. art. I, § 9, cl. 3; U.S.
Const. art. I, § 10, cl. 1. During this era, Parliament regularly
criminalized previously legal behavior retroactively. The
most prominent example arose during the prelude to the
English Civil War—the impeachment trial of Thomas
Wentworth, the 1st Earl of Strafford in 1641. See PETER
ACKROYD, REBELLION: THE HISTORY OF ENGLAND FROM
JAMES I TO THE GLORIOUS REVOLUTION 209 (2015). English
Parliament tried to impeach Strafford on flimsy charges to
remove one of King Charles I’s primary allies from office.
Id. When it was clear the impeachment charges would fail,
Parliament instead passed a Bill of Attainder declaring
Strafford’s actions retroactively illegal and sentenced him to
death. Id. at 210–14. Strafford was executed. Id. at 213–
14.
The events surrounding the English Civil War greatly
influenced the Founders in constitutional drafting. For
example, Alexander Hamilton, writing as Publius, explained
that “[t]he creation of crimes after the commission of the
fact, or, in other words, the subjecting of men to punishment
for things which, when they were done, were breaches of no
law, and the practice of arbitrary imprisonments, have been,
in all ages, the favorite and most formidable instruments of
tyranny.” THE FEDERALIST NO. 84 (Alexander Hamilton).
Quoting Sir William Blackstone, Hamilton explained that
retroactively punishing previously licit behavior is “a more
dangerous engine of arbitrary government” than any other
“notorious an act of despotism.” Id. (cleaned up) (citation
omitted). Certain types of retroactive action by the
government are thus anathema to the Constitution. Id.
Appendix A
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USA V. ENGSTROM
19
But the Constitution does not deal with this problem by
circumscribing all retroactive action by the government.
The Constitution’s restricts retroactive legislative and
executive action but treats judicial action differently.
Ordinarily, the legislative power is “the power to adopt
generally applicable rules of conduct governing future
actions by private persons—the power to prescribe the rules
by which the duties and rights of every citizen are to be
regulated, or the power to prescribe general rules for the
government of society.” Gundy v. United States, 588 U.S.
128, 153 (2019) (Gorsuch, J., dissenting) (cleaned up). So
the legislative power is ordinarily prospective. Id. And the
executive power is “essentially a grant of the power to
execute the laws,” meaning it too is ordinarily prospective
since it bootstraps itself to the legislative power. Buckley v.
Valeo, 424 U.S. 1, 135 (1976). By contrast, the judicial
power is the power “to say what the law is,” meaning it is
ordinarily retroactive as it only interprets statutory or
Constitutional text as it exists rather than creating new law.
See Marbury v. Madison, 5 U.S. 137, 177 (1803).
When analyzing retroactivity, courts must thus carefully
consider which clause of the constitution that protects
against retroactive effects is implicated, and what type of
action—legislative, executive, or judicial—is creating such
a retroactive effect. This analysis requires considering the
history of the clauses of the Constitution that protect against
retroactivity.
The most obvious source of constitutional protection
against retroactivity is the Ex Post Facto Clause. See U.S.
Const. art I., § 9, cl. 3. During the Constitutional
Convention, the Framers debated the scope of that clause
(i.e., whether it would apply to government action outside of
retroactive criminal laws passed by Congress). See Daniel
Appendix A
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USA V. ENGSTROM
Troy, Ex Post Facto, in THE HERITAGE GUIDE TO THE
CONSTITUTION 204 (2d ed. 2014).
The Supreme Court clarified the scope of the Ex Post
Facto Clause in one of its earliest cases—Calder v. Bull, 3
U.S. 386, 390 (1798). 1 Justice Samuel Chase, writing for the
Court, explained that the clause covered only four scenarios:
First, “Every law that makes an action, done before the
passing of the law and which was innocent when done,
criminal; and punishes such action.” Id. Second, “Every law
that aggravates a crime, or makes it greater than it was, when
committed.” Id. Third, “Every law that changes the
punishment, and inflicts a greater punishment, than the law
annexed to the crime, when committed.” Id. Fourth, “Every
law that alters the legal rules of evidence, and receives less,
or different, testimony, than the law required at the time of
commission of the offence, in order to convict the offender.”
Id. So the Ex Post Facto Clause does not protect against
government action that is not a law (i.e., a judicial decision),
nor does it protect against Congress enacting retroactive civil
laws, or even retroactive criminal laws outside Calder’s four
enumerated categories. Id. at 390–91.
1
Justice Thomas has questioned whether Calder was rightly decided.
See E. Enters. v. Apfel, 524 U.S. 498, 538–39 (1998) (Thomas, J.,
concurring). He has also argued that cases subsequent to Calder have
misinterpreted it. See Ellingburg v. United States, No. 24-482, 2026 WL
135982, at *4 (U.S. Jan. 20, 2026) (Thomas, J., concurring). Under
Justice Thomas’s proposed approach, the Ex Post Facto Clause is
implicated under Calder anytime a law or agency action involves a
“public wrong” (i.e. creates an injury against the sovereign as opposed
to individuals in their private capacity) whether the law was criminal or
civil. Id. at 8–12. But as a lower court, we faithfully apply Calder and
its progeny, see Mallory v. Norfolk S. Ry. Co., 600 U.S. 122, 136 (2023),
and even under Justice Thomas’s views, the clause would extend only to
laws passed by Congress and agency action, not judicial action.
Appendix A
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USA V. ENGSTROM
21
But the Founders also realized that our legal system
needed to protect against retroactivity when the Ex Post
Facto Clause was not implicated to protect behavior vast
swathes of society had understood as legal, relied upon, and
had no notice prior to retroactive state action. For example,
Thomas Jefferson explained that the Ex Post Facto Clause
bars retroactive application “in criminal cases only” even
though ex post facto laws “are equally unjust in civil as in
criminal cases and the omission of a caution which would
have been right, does not justify the doing [of] what is
wrong.” Thomas Jefferson, Thomas Jefferson to Isaac
McPherson, FOUNDERS ONLINE (Aug. 13, 1813), https://fo
unders.archives.gov/documents/Jefferson/03-06-02-0322.
Courts have heeded Jefferson’s warning and crafted
constitutional doctrines to protect against retroactivity
outside the formal protection of the Ex Post Facto Clause
through the due process clauses of the Fifth and Fourteenth
Amendments. Rogers, 532 U.S. at 456–57; U.S. Const.
amend. V; U.S. Const. amend. XIV, § 1. And that protects
against retroactivity in two ways. First, when Congress
passes laws, or the executive enacts executive orders,
“prospectivity remains the appropriate default rule.”
Landgraf v. USI Film Prods., 511 U.S. 244, 272 (1994). And
even when that default rule cannot be applied, the “Due
Process Clause also protects the interests in fair notice and
repose that may be compromised by retroactive legislation,”
executive orders, or even judicial action. Id. at 266. “[A]
justification sufficient to validate . . . prospective application
under the Clause may not suffice to warrant [] retroactive
application.” Id. (cleaned up). But “[t]he Constitution’s
restrictions, of course, are of limited scope[,]” meaning
“[a]bsent a violation of [the due process right to fair notice],
the potential unfairness of retroactive [government action] is
Appendix A
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22
USA V. ENGSTROM
not a sufficient reason for a court to fail” to apply changes in
precedent in cases on direct appeal. Id. at 267 (cleaned up).
At its core, the due process right to fair notice addresses
“the unfairness of imposing new burdens on persons after the
fact.” Id. at 270. It ensures that the government is not “free
to change the law retroactively based on shifting political
winds, [because] it could use that power to punish politically
disfavored groups or individuals for conduct they can no
longer alter.” Gutierrez-Brizuela v. Lynch, 834 F.3d 1142,
1146 (10th Cir. 2016) (Opinion of Gorsuch, J.). But absent
any such concerns—as in this case—a federal court has an
unflagging obligation to exercise the judicial power in its
normal mode (i.e., retroactively). Cf. Marbury, 5 U.S. at 177
(the judiciary is required “to say what the law is[,]” implying
it doesn’t ordinarily create new law moving forward); see
also Jonathan F. Mitchell, The Writ-of-Erasure Fallacy, 104
VA. L. REV. 933, 996 (2018) (explaining how judicial
decisionmaking is, by its nature, retroactive).
Engstrom’s case falls far outside the ambit of protection
under first principles that led federal courts to cognize a due
process right to fair notice. And our precedent confirms that.
b
Applying Pulsifer here does not violate Engstrom’s due
process right. The application of subsequent judicial
decisions on direct appeal does not violate a defendant’s due
process when, as here, Pulsifer’s interpretation of
§ 3553(f)(1) was foreseeable. Engstrom argues that under
Bouie v. City of Columbia, 378 U.S. 347 (1964), and its
progeny, applying Pulsifer would violate his due process
right. Engstrom is wrong.
Appendix A
App-22
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USA V. ENGSTROM
23
Bouie reviewed the South Carolina Supreme Court’s
decision to retroactively apply its state’s criminal trespass
statute to its petitioners. Id. at 348–50. That trespass statute
prohibited “entry upon the lands of another . . . after notice
from the owner or tenant prohibiting such entry.” Id. at 349.
The South Carolina Supreme Court had construed the
statute to extend to patrons of a drug store who had been
given no notice barring them from entering the store but
refused to leave when asked. 2 Id. at 349–50. Prior to Bouie,
“cases construing the statute had uniformly held that
conviction under the statute required proof of notice before
entry.” Rogers, 532 U.S. at 457 (discussing Bouie). No case
before Bouie gave “the slightest indication that [the statute’s]
requirement could be satisfied by proof of the different act
of remaining on the land after being told to leave.” 378 U.S.
at 357.
The Supreme Court held that “the South Carolina
Supreme Court, in applying its new construction of the
statute . . . deprived petitioners of rights guaranteed to them
by the Due Process Clause.” Id. at 362. The Court explained
that “an unforeseeable judicial enlargement of a criminal
statute, applied retroactively, operates precisely like an ex
post facto law” and thus violates a petitioner’s due process
right to fair notice. Id. at 353.
Bouie does not apply here. It applies only when
subsequent judicial interpretations of a statute are truly
unforeseeable by the parties. No court had reached or
applied the statutory construction the South Carolina
2
Bouie arose out of a sit-in demonstration where the store’s restaurant
was segregated and the trespass statute was used against African
Americans denied service. 378 U.S. at 361.
Appendix A
App-23
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24
USA V. ENGSTROM
Supreme Court did, and that result was truly unexpected.
See id. at 357. “[D]ue process bars courts from applying a
novel construction of a criminal statute to conduct that
neither the statute nor any prior judicial decision has fairly
disclosed to be within its scope.” United States v. Lanier,
520 U.S. 259, 266 (1997). And where other “jurisdictions
had already reasonably construed identical statutory
language to apply [to a defendant’s act],” those decisions
gave a defendant fair notice that his behavior would be
criminalized under the statute. Rose v. Locke, 423 U.S. 48,
53 (1975).
When Engstrom was sentenced, and Pulsifer decided
soon after, the Ninth Circuit’s abrogated position in Lopez
was already a minority position. See Lopez, 58 F.4th 1108.
This is a far cry from Bouie where no court had ever adopted
the novel statutory construction (and had in fact rejected it
in every case before Bouie). 378 U.S. at 357. Here the Fifth,
Sixth, Seventh and Eighth Circuits all rendered opinions that
gave Engstrom notice that the disjunctive construction of the
provision may have been correct two years prior to his
sentencing hearing. See United States v. Pulsifer, 39 F.4th
1018 (8th Cir. 2022); United States v. Palomares, 52 F.4th
640 (5th Cir. 2022); United States v. Haynes, 55 F.4th 1075
(6th Cir. 2022); United States v. Pace, 48 F.4th 741 (7th
Cir. 2022). Thus, applying Pulsifer does not defy Bouie. See
United States v. Newman, 203 F.3d 700, 702–03 (9th Cir.
2000) (explaining that a circuit split renders the alternate
interpretation “reasonably foreseeable”).
Further, Bouie does not apply to cases that do not enlarge
the scope of criminal liability. Where “the judicial decision
at issue” (i.e., Pulsifer) “does not enlarge the scope of
criminal liability[,]” but rather “interprets a federal statute
concerning the calculation of the length of a term of
Appendix A
App-24
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USA V. ENGSTROM
25
imprisonment without reference to the issue of the
defendant’s criminal liability[,]” “the due process concerns
raised by Bouie are inapplicable.” Newman, 203 F.3d at
702–03; see also United States v. Ruiz, 935 F.2d 1033, 1035–
36 (9th Cir. 1991); United States v. Ricardo, 78 F.3d 1411,
1417 (9th Cir. 1996).
We thus properly consider Pulsifer when reviewing the
district court’s order. See Macias, 789 F.3d at 1019 n.4;
Henderson, 568 U.S. at 269. And under Pulsifer, Engstrom
is ineligible for safety valve relief. 601 U.S. at 153.
c
Finally, Engstrom argues that even if Pulsifer applies, the
government cannot satisfy its burden to show that this error
warrants reversal under the third and fourth prongs of plain
error review. These arguments lack merit.
Plain error review does not solely protect the substantial
rights of a criminal defendant, it also protects the
government. “The government’s substantial rights may be
affected when a defendant receives an inappropriate
sentence,” and all the government must show is “a
reasonable probability that [the defendant] would have
received a different sentence but for the district court’s
error.” United States v. Gonzalez-Zotelo, 556 F.3d 736, 741
(9th Cir. 2009).
The government meets that test. But for the error created
by not applying Pulsifer to this case, Engstrom would not
have been safety valve eligible. He would have received a
sentence at or above the statutory mandatory minimum of 60
months. Instead, Engstrom only received a sentence of 46
months—well below the mandatory minimum. Thus, the
government satisfies the third prong of plain error review.
Appendix A
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26
USA V. ENGSTROM
The government also satisfies the fourth prong. It has
shown that “the error seriously affected the fairness,
integrity, or public reputation of judicial proceedings.”
Walter-Eze, 869 F.3d at 911. The type of sentencing
disparity seen here automatically satisfies this prong.
When a “district judge would have given a different
sentence but for [his] error,” such a situation intrinsically
“undermine[s] the fairness and integrity of judicial
proceedings.” Gonzalez-Zotelo, 556 F.3d at 741. In those
cases, the third and fourth prongs of plain error review
collapse into one. If the government meets its burden under
the third prong, it simultaneously demonstrates that the
sentencing error undermines “the fairness and integrity of
[the] judicial proceedings.” Id. Thus, the government has
met its burden under plain error review.
V
The district court erred by concluding that Engstrom was
eligible for safety valve relief under § 3553(f). The
“appropriate remedy for a sentence imposed in excess of the
sentencing court’s authority is to vacate the entire sentence
and remand for resentencing.” United States v. Blue
Mountain Bottling Co. of Walla Walla, 929 F.2d 526, 529
(9th Cir. 1991). Thus, we reverse the district court, vacate
Engstrom’s sentence, and remand to the district court for
resentencing consistent with this opinion.
REVERSED, VACATED, AND REMANDED.
Appendix A
App-26
Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
Case: 24-1878, 02/05/2026, DktEntry: 66.2, Page 1 of 7
Founders Online: Thomas Jefferson to Isaac
McPherson, 13 August 1813
To Isaac McPherson
Monticello August 13. 13.
Sir
Your letter of Aug. 3. asking information on the subject of mr Oliver Evans’s exclusive right to the
use of what he calls his Elevators, Conveyers, and Hopper-boys, has been duly recieved. my wish to
see new inventions encouraged, and old ones brought again into useful notice, has made me regret
the circumstances which have followed the expiration of his first patent. I did not expect the
retrospection which has been given to the reviving law. for altho’ the 2d Proviso seemed not so clear
as it ought to have been, yet it appeared susceptible of a just construction; and the retrospective one
being contrary to natural right, it was understood to be a rule of law that where the words of a
statute admit of two constructions, the one just and the other unjust, the former is to be given them.
the 1st Proviso takes care of those who had lawfully used Evans’s improvements under the 1st
patent; the 2d was meant for those who had lawfully erected and used them after that patent
expired, declaring they ‘should not be liable to damages therefor.’ these words may indeed be
omthose 2to0come,
rfor
restrained to uses already past; but as there is parity of reason
t
26 there should be
s
g
n
,
E
0
parity of law. every man should be protected in hisvlawful
acts, and
certain that no ex post facto
ry 3ifbeforbidden
Ahe is. endamaged,
a
S
u
law shall punish or endamage him for them.
but
to use a machine
n
U
Japay a new and unexpected
in
d
e
lawfully erected, at considerablecexpence,
he
will
price for it. the
v
ited unless
hi shall not be liable to pay damages.
c
r
a
proviso says that he who erected and 7
used
lawfully
but if the
8
8
1
Proviso had been omitted, would
not
the
law,
construed
by
natural
equity,
have
said
the
thing.
. 24 and shall useless provisos inserted pro majori cautelâ same
Nouseless.
in truth both Provisos are
only,1
authorise inferences against justice? the sentiment that ex post facto laws are against natural right
is so strong in the United States, that few, if any, of the State constitutions have failed to proscribe
them. the federal constitution indeed interdicts them in criminal cases only; but they are equally
unjust in civil as in criminal cases and the omission of a caution which would have been right, does
not justify the doing what is wrong. nor ought it to be presumed that the legislature meant to use a
phrase in an unjustifiable sense, if by any rules of construction, it can be even strained to what is
just. the law books abound with similar instances of the care the judges take of the public integrity.
laws moreover abridging the natural rights of the citizen, should be restrained by rigorous
constructions within their narrowest limits.
Your letter however points to a much broader question, Whether what have recieved from mr Evans
the new and the proper name of Elevators are of his invention. because, if they are not, his patent
gives him no right to obstruct others in the use of what they possessed before. I assume it as a
Lemma that it is the invention of the machine itself which is to give a patent right, and not the
application of it to any particular purpose of which it is susceptible. if one person invents a knife
convenient for pointing our pens, another cannot have a patent right for the same knife to point our
pencils. a Compass was invented for navigating the sea; another could not have a patent right for
using it to survey land. a machine for threshing wheat has been invented in Scotland. a 2d person
cannot get a patent right for the same machine to thresh oats, a 3drye, a 4thpeas, a 5thclover Etc. a
string of buckets is invented & used for raising water, ore Etc can a 2d have a patent right to the
same machine for raising wheat, a 3d oats, a 4th rye, a 5th peas Etc? the question then whether
such a string of buckets was invented first by Oliver2 Evans, is a meer question of fact in
1 of 7
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Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
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Mathematical history. now turning to such books only as I happen to possess, I find abundant proof
that this simple machinery has been in use from time immemorial. Doctr Shaw, who visited Egypt
& the Barbary coast in the years 1727. 8. 9. in the margin of his map of Egypt, gives us the figure of
what he calls a Persian wheel, which is a string of round cups or buckets, hanging on a pully, over
which they revolve, bringing up water from a well, and delivering it into a trough above. he found
this used at Cairo, in a well 264.f. deep, which the inhabitants believe to have been a work of the
patriarch Joseph.Shaw’s travels. 341. Oxford edition of 1738. in folio. and the Universal history I.
416. speaking of the manner of watering the higher lands in Egypt, says ‘formerly they made use of
Archimedes’s screw, thence named the Egyptian pump; but they now generally use wheels
(wallowers) which carry a rope or chain of earthen pots, holding about 7. or 8. quarts apiece, and
draw the water from the canals. there are besides a vast number of wells in Egypt, from which the
water is drawn in the same manner to water the gardens & fruit trees; so that it is no exaggeration
to say, that there are in Egypt above 200,000. oxen daily employed in this labour.’Shaw’s name of
Persian wheel has been since given more particularly to a wheel with buckets, either fixed, or
suspended on pins, at it’s periphery. Mortimer’s husbandry I. 18.Duhamel III. 11.Ferguson’s
Mechanics plate XIII. but his figure, and the verbal description of the Universal history prove that
the string of buckets is meant under that name.his figure differs from Evans’s construction in the
circumstances of the buckets being round, and strung thro’ their bottom on a chain.but it is the
principle, to wit a string of buckets, which constitutes the invention, not the form of the buckets,
round, square, or hexagon; nor the manner of attaching them, nor the material of the connecting
band, whether chain, rope, or leather.VitruviusL.X. c. 9. describes this machinery as a Windlas, on
which is a chain descending to the water, with vessels of copper attached to it; the windlas being
turned, the chain moving on it will raise the vessels which, in passing over the windlas, will empty
the water they have brought up into a reservoir. and Perrault, in his edition of Vitruvius. Paris 1684.
fol. Plates 61. 62. gives us three forms of these water elevators,
one of which
the buckets are
om
rin
t
s
026drum
g
2
n
,
square, as mr Evans’s are.Bossut Histoire des Mathematiques
I.
86.
says
‘the
wheel, the wheel
E
0
y3
r
A v. which
a
with buckets & the Chapelets, are hydraulicU
machines
come
to
us
from
the
antients.
we
S
u
an the Chapelets are the revolvingbutband
n
J
i
are ignorant of the time when theyitbegan
to
be
put
into
use.’
of
d
d
e
ivmoderns
c e wheel,
h
c
r
buckets which Shaw calls the Persian
the
a
Chainpump,
and
mr
Evans
a
878 I find these Elevators is Wolf’sCours de Mathematiques I.
Elevators. the next of my books4in
which
1
2 are two forms. in one of them the buckets are square, attached to
o. here
370. & Pl. 1. Paris 1747.N
8vo.
two chains, passing over a cylinder or wallower at top, & under another at bottom, by which they
are made to revolve. it is a nearly exact representation of Evans’s elevators.but a more exact one is
to be seen in Desagulier’s Experiml Philosophy II. Plate. 34.in the Encyclopedie de Diderot et
D’alembert 8vo edn of Lausanne, 1’st vol. of Plates, in the 4. subscribed Hydraulique. Noria, is one
where round earthen pots are tied by their collars, between two endless ropes suspended on a
revolving lanthern or wallower. this is said to have been used for raising ore out of a mine.in a book
which I do not possess, ‘L’architecture Hidraulique de Belidor, the IId vol. of which is said [De la
Lande’s continuation of Montucla’s Histoire des Mathematiques III. 711.] to contain a detail of all
the pumps, antient and modern, hydraulic machines, fountains, wells Etc. I have no doubt this
Persian wheel, chain-pump, Chapelets, Elevators, by whichever name you chuse to call it, will be
found in various forms. the last book I have to quote for it is Prony’s Architecture Hydraulique I.
Avertissement vii. and §. 648. 649. 650. in the latter of which passages he observes that the 1st idea
which occurs for raising water is to lift it in a bucket by hand. when the water lies too deep to be
reached by hand, the bucket is suspended by a chain, and let down over a pulley or windlass. if it be
desired to raise a continued stream of water, the simplest means which offers itself to the mind is to
attach to an endless chain or cord a number of pots or buckets, so disposed that, the chain being
suspended on a lanthern or wallower above, and plunged in water below, the buckets may descend
and ascend alternately, filling themselves at bottom, and emptying at a certain height above, so as
to give a constant stream. some years before the date of mr Evans’s patent, a mr Martin of Caroline
county in this state, constructed a drill-plough, in which he used the band of buckets for elevating
the grain from the box into the funnel, which let them down into the furrow. he had bands with
different sets of buckets adapted to the size of peas, of turnep seed Etc. I have used this machine for
2 of 7
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Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
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sowing Benni seed, also, and propose to have a band of buckets for drilling Indian corn, and
another for wheat. is it possible that in doing this I shall infringe mr Evans’s patent? that I can be
debarred of any use to which I might have applied my drill, when I bought it, by a patent issued
after I bought it?
These verbal descriptions, applying so exactly to mr Evans’s elevators, and the drawings exhibited
to the eye; flash conviction both on reason and the senses, that there is nothing new in these
elevators but their being strung together on a strap of leather. if this strap of leather be an
invention, entitling the inventor to a patent right, it can only extend to the strap, and the use of the
string of buckets must remain free to be connected by chains, ropes, a strap of hempen girthing, or
any other substance, except leather. but indeed mr Martin had before used the strap of leather.
The Screw of Archimedes is as antient, at least, as the age of that Mathematician, who died more
than 2000. years ago. Diodorus Siculus speaks of it L. I. pa. 21. and L. V. pa. 217. of Stevens’s
edition of 1559. folio. and Vitruvius X. 11. the cutting of it’s spiral worm into sections for conveying
flour or grain, seems to have been an invention of mr Evans, & to be a fair subject of a patent right.
but it cannot take away from others the use of Archimedes’s screw, with it’s perpetual spiral, for any
purposes of which it is susceptible.
The Hopper-boy is an useful machine; &, as far as I know, original.3
It has been pretended by some (and in England especially) that inventors have a natural and
exclusive right to their inventions; & not merely for their own lives, but inheritable to their heirs.
but while it is a moot question whether the origin of any kind of property is derived from nature at
all, it would be singular to admit a natural, and even an hereditary
to inventions. it is agreed
mrighthas,
o
r
t
26natural right, a
s
by those who have seriously considered the subject, thatn
no
individual
0of
g
2
,
E
0
3 indeed, whatever, whether
separate property in an acre of land, for instance.
rylaw
Abyv.an universal
a
S
u
n
U
fixed or moveable, belongs to all men equally
in common,
is the property, for the moment, of
n and e
d Ja the
ted i rchthe
iv occupation
him who occupies it; but when he
goes with it. stable
cirelinquishes
a late in the progressproperty
8
ownership is the gift of social law, and
is
given
of
society.
it would be curious
7
18 of an individual brain, could, of natural
4
then if an idea, the fugitive
fermentation
right, be claimed
2
o.
in exclusive and stable N
property. if nature has made any one thing less susceptible, than all others,
of exclusive property, it is the action of the thinking power called an Idea; which an individual may
exclusively possess as long as he keeps it to himself; but the moment it is divulged, it forces itself
into the possession of every one, and the reciever cannot dispossess himself of it. it’s peculiar
character too is that no one possesses the less, because every other possesses the whole of it. he who
recieves an idea from me, recieves instruction himself, without lessening mine; as he who lights his
taper at mine, recieves light without darkening me. that ideas should freely spread from one to
another over the globe, for the moral and mutual instruction of man, and improvement of his
condition, seems to have been peculiarly and benvolently designed by nature, when she made them,
like fire, expansible over all space, without lessening their density in any point; and like the air in
which we breathe, move, and have our physical being, incapable of confinement, or exclusive
appropriation. inventions then cannot in nature be a subject of property. society may give an
exclusive right to the profits arising from them as an encouragement to men to pursue ideas which
may produce utility. but this may, or may not be done, according to the will and convenience of the
society, without claim or complaint from any body. accordingly it is a fact, as far as I am informed,
that England was, until we copied her, the only country on earth which ever by a general law, gave a
legal right to the exclusive use of an idea. in some other countries, it is sometimes done, in a great
case, and by a special & personal4 act. but generally speaking, other nations have thought that these
monopolies produce more embarrasment than advantage to society. and it may be observed that
the nations which refuse monopolies of invention, are as fruitful as England in new and useful
devices.
3 of 7
Appendix A
App-29
1/30/2026, 3:45 PM
Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
Case: 24-1878, 02/05/2026, DktEntry: 66.2, Page 4 of 7
Considering the exclusive right to invention as given not of natural right, but for the benefit of
society, I know well the difficulty of drawing a line between the things which are worth to the public
the embarrasment of an exclusive patent, and those which are not. as a member of the Patent-board
for several years, while the law authorised a board to grant or refuse patents, I saw with what slow
progress a system of general rules could be matured. some however were established by that board.
one of these was, that a machine, of which we were possessed, might be applied by every man to any
use of which it is susceptible, and that this right ought not to be taken from him, and given to a
monopolist, because he first perhaps had occasion so to apply it. thus a Screw for crushing plaister
might be employed for crushing corn-cobs. and a Chain-pump for raising water might be used for
raising wheat: this being merely a change of application. Another rule was that a change of material
should not give5 title to a patent. as the making a ploughshare of cast rather than of wrought iron; a
Comb of iron, instead of horn, or of ivory. or the connecting buckets by a band of leather, rather
than of hemp or iron. a third was that a mere change of form should give6 no right to a patent. as a
high quartered shoe, instead of a low one. a round hat, instead of a three square. or a square bucket
instead of a round one. but for this rule, all the changes of fashion in dress would have been under
the tax of patentees. these were among the rules which the uniform decisions of the board had
already established; and under each of them mr Evans’s patent would have been refused. 1. because
it was a mere change of application of the chain pump, from raising water to raise wheat. 2. because
the using a leathern, instead of a hempen band, was a mere change of material: and 3ly square
buckets instead of round are only a change of form; and the antient forms too appear to have been
indifferently square or round. but there were still abundance of cases which could not be brought
under rule, until they should have presented themselves under all their aspects; and these
investigations occupying more time of the members of the board than they could spare from higher
duties, the whole was turned over to the judiciary, to be matured into a system, under which
everyone might know when his7 actions were safe and lawful.trinstead
patent in the
om of2refusing
26 asubject
s
0
g
n
,
first instance, as the board was authorised to do, the.patent
now issues
of
course,
to be
E
0
3
v
ycourts
r
A
a
declared void on such principles as should be
established
by
the
of
law.
this
business
S
u
n
Jasince
in U of reading,
however is but little analogous to their
course
we might in vain turn over all the
d
d
e
e
t
v
i
i
c a singlearray
hwhich
c
lubberly volumes of the law to find
would lighten the path of the Mechanic or
8
Mathematician. it is more within
the
of a board of Academical professors, and a
187information
4
2
.
o
previous refusal of patent
N would better guard our citizens against harrassment by lawsuits. but
England had given it to her judges, and the usual predominancy of her examples carried it to ours.
It happened that I had myself a mill built, in the interval between mr Evans’s 1st and 2d patents. I
was living in Washington, and left the construction of the mill entirely to the mill wright. I did not
even know he had erected elevators, conveyers, and hopper-boys, until I learnt it by an application
from mr Evans’s agent for the patent price. altho’ I had no idea he had a right to it by law (for no
judicial decision had then been given) yet I did not hesitate to remit to mr Evans the old and
moderate patent price, which was what he then asked, from a wish to encourage even the useful
revival of antient inventions. but I then expressed my opinion of the law in a letter either to mr
Evans, or to his agent.8
I have thus, Sir, at your request, given you the facts & ideas which occur to me on this subject. I
have done it without reserve, altho’ I have not the pleasure of knowing you personally. in thus
frankly committing myself to you, I trust you will feel it as a point of honor & candor, to make no
use of my letter which might bring disquietude on myself.9 and particularly I should be unwilling to
be brought into any difference with mr Evans whom however I believe too reasonable to take
offence at an honest difference of opinion. I esteem him much, and sincerely wish him wealth &
honor. I deem him a valuable citizen, of uncommon ingenuity & usefulness. and had I not esteemed
still more the establishment of sound principles, I should now have been silent. if any of the matter
I have offered can promote that object, I have no objection to it’s being so used. if it offers nothing
new, it will of course not be used at all. I have gone with some minuteness into the Mathematical
history of the Elevator, because it belongs to a branch of science, in which, as I have before
4 of 7
Appendix A
App-30
1/30/2026, 3:45 PM
Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
Case: 24-1878, 02/05/2026, DktEntry: 66.2, Page 5 of 7
observed, it is not incumbent on lawyers to be learned; and it is possible therefore that some of the
proofs I have quoted may have escaped on their former arguments. on the law of the10 subject I
should not have touched, because more familiar to those who have already discussed it; but I
wished to state my own view of it merely in justification of myself; my name and approbation being
subscribed to the act. with these explanations accept the assurance of my respect.
Th: Jefferson
PoC (DLC); brackets in original; at foot of first page: “Mr Isaac MPherson.” Printed in Memorial to
Congress on Evans’ Patent description begins Memorial to Congress of sundry citizens of the
United States, praying relief from the oppressive operation of Oliver Evans’ Patent, Baltimore, 1813
description ends , 7–16.
hopper-boys are rakes that push meal over an opening in the floor of a mill (OED description
begins James A. H. Murray, J. A. Simpson, E. S. C. Weiner, and others, eds., The Oxford English
Dictionary, 2d ed., 1989, 20 vols. description ends ). endamage: to damage, injure, or discredit
(OED description begins James A. H. Murray, J. A. Simpson, E. S. C. Weiner, and others, eds., The
Oxford English Dictionary, 2d ed., 1989, 20 vols. description ends ). pro majori cautelâ: as a
precaution; to give additional security (Black’s Law Dictionary description begins Bryan A. Garner
and others, eds., Black’s Law Dictionary, 7th ed., 1999 description ends ). The United States
constitution prohibits the passage of ex post facto laws by either the federal government or the
states (Article 1, sections 9–10). l.: liber (“book”). Vitruvius discusses the use of a windlass to raise
water in book 10, chapter 4 of his work on architecture, not x. c. 9 (Vitruvius on Architecture, trans.
Frank Granger, Loeb Classical Library [1962], 2:302–5). noria: “chain-pump.” stevens’s edition:
Henri Estienne’s edition of the works of Diodorus Siculus (Sowerby,
begins E. Millicent
m description
6 description
ro1952–59,
t
2
s
0
Sowerby, comp., Catalogue of the Library of Thomas Jefferson,
5
vols.
ends
g
2
Enin bookry10,3chapter
0,
.
v
x.
11
(Vitruvius
no. 37). Vitruvius actually describes Archimedes’s
screw
6,
not
ua Act of 10 Apr. 1790 until its
USA by Jthe
anPatent
n
on Architecture, 2:307–11). From its establishment
i
d
d
itethe patent-board,
abolition early in 1793, TJ servedcon
hive a body consisting of the secretary of state,
c
r
a
8
7general
the secretary of war, and the attorney
(PTJ description begins Julian P. Boyd, Charles T.
1B.8Oberg,
4
2
Cullen, John Catanzariti, o
Barbara
James
P. McClure, and others, eds., The Papers of
.
N
Thomas Jefferson, 1950– description ends , 22:361–2n, 25:398–9, 27:853–4; U.S. Statutes at
Large description begins Richard Peters, ed., The Public Statutes at Large of the United States …
1789 to March 3, 1845, 1845–67, 8 vols. description ends , 1:109–12). The mill wright who assisted
in the construction and outfitting of TJ’s Shadwell Mills was James Walker (MB description begins
James A. Bear Jr. and Lucia C. Stanton, eds., Jefferson’s Memorandum Books: Accounts, with Legal
Records and Miscellany, 1767–1826, 1997, The Papers of Thomas Jefferson, Second Series
description ends , esp. 2:1162; Betts, Farm Book description begins Edwin M. Betts, ed., Thomas
Jefferson’s Farm Book, 1953 (in two separately paginated sections; unless otherwise specified,
references are to the second section) description ends , 342, 353). For the application for the patent
price by evans’s agent, John Moody, and TJ’s response giving his opinion of the law in question, see
Moody to TJ, 20 Oct. 1808 (MHi), and TJ to Evans, 6 Dec. 1808 (DLC). TJ’s name and approbation
became attached to the “Act for the relief of Oliver Evans” when he signed it into law on 21 Jan.
1808 (U.S. Statutes at Large description begins Richard Peters, ed., The Public Statutes at Large of
the United States … 1789 to March 3, 1845, 1845–67, 8 vols. description ends , 6:70–1).
1. Preceding five words interlined.
2. Manuscript: “Oliliver.”
3. Memorial to Congress here keys a footnote stating that “The enlightened author was not apprised
of the depositions contained in No. III. where the evidences are so conclusive against Mr. Evans on
the subject of the Hopper-boy. Editor.”
5 of 7
Appendix A
App-31
1/30/2026, 3:45 PM
Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
Case: 24-1878, 02/05/2026, DktEntry: 66.2, Page 6 of 7
4. Reworked from: “permanent.”
5. Preceding three words interlined in place of “is not a.”
6. Preceding two words added in place of “gave.”
7. Reworked from “their.”
8. Preceding eight words interlined.
9. Memorial to Congress here keys a footnote stating that “It is proper to observe, that though the
author did not at the time of writing this letter, contemplate its publication, yet his permission has
been obtained. Editor.” The reference is to TJ to McPherson, 18 Sept. 1813.
10. TJ here canceled “case.”
Index Entries
• A Course of Experimental Philosophy (J. T. Desaguliers) search
• agriculture; books on search
• Alembert, Jean Le Rond d’; Encyclopédie search
• An Act for the relief of Oliver Evans (1808) search
• An Universal History, from the Earliest Account of Time to the Present search
• A Practical Treatise of Husbandry (Duhamel du Monceau) search
rom 2026
t
s
• Archimedes; screw of search
g
v. En uary 30,
• Architecture Hydraulique (B. F. de Bélidor)
search
A
S
• Bélidor, Bernard Forest de; Architecture
Jan search
in U Hydraulique
d
d
e
e
t
v
i
c Quindecim
• Bibliothecae Historicae Libri
rchdei quadraginta (Diodorus Siculus) search
a
8
7
• books; on agriculture search
8
24-1
.
• books; on hydraulics
search
o
N
• books; on mathematics search
• Bossut, Charles; Essai sur l’Histoire Génerale des Mathématiques search
• Constitution, U.S.; and ex post facto legislation search
• Cours de Mathématique (Wolff; trans. J. F. de Brézillac) search
• Desaguliers, John Theophilus; A Course of Experimental Philosophy search
• Diderot, Denis; and Encyclopédie search
• Diodorus Siculus; Bibliothecae Historicae Libri Quindecim de quadraginta search
• drills (sowing implements); designed by T. C. Martin search
• Duhamel du Monceau, Henri Louis; A Practical Treatise of Husbandry search
• Egypt; water-raising technology in search
• Encyclopédie (J. d’Alembert and D. Diderot) search
• Essai sur l’Histoire Génerale des Mathématiques (C. Bossut) search
• Estienne, Henri (Stepani; Stephani); Bibliothecae Historicae Libri Quindecim de
quadraginta search
• Evans, Oliver; machinery of installed at Shadwell mills search
• Evans, Oliver; machinery of patented search
• Evans, Oliver; originality of machinery questioned search
• Ferguson, James; Lectures on Select Subjects in Mechanics, Hydrostatics, Pneumatics, and
Optics search
• Great Britain; and patents search
• Histoire des Mathématiques (J. E. Montucla and Lalande) search
6 of 7
Appendix A
App-32
1/30/2026, 3:45 PM
Founders Online: Thomas Jefferson to Isaac McPherson, 13 August 1813
https://founders.archives.gov/documents/Jefferson/03-06-02-0322
Case: 24-1878, 02/05/2026, DktEntry: 66.2, Page 7 of 7
• Jefferson, Thomas; Opinions on; ex post facto legislation search
• Jefferson, Thomas; Opinions on; O. Evans’s patent machinery search
• Jefferson, Thomas; Opinions on; patent law search
• Jefferson, Thomas; Public Service; as patent board member search
• Joseph (Old Testament patriarch) search
• Lalande, Joseph Jérôme Le Français de; Histoire des Mathématiques search
• Lectures on Select Subjects in Mechanics, Hydrostatics, Pneumatics, and Optics (J.
Ferguson) search
• machines; drill search
• machines; O. Evans’s patent machinery search
• Martin, Thomas C.; drill of search
• mathematics; books on search
• McPherson, Isaac; and O. Evans’s patent machinery search
• McPherson, Isaac; letters to search
• Montucla, Jean Étienne; Histoire des Mathématiques search
• Moody, John; as agent for O. Evans search
• Mortimer, John; The Whole Art of Husbandry search
• Nouvelle Architecture Hydraulique (Prony) search
• patents; of O. Evans search
• Perrault, Claude; as translator of Vitruvius search
• Prony, Gaspard Clair François Marie Riche de; Nouvelle Architecture Hydraulique search
• seeds; sesame search
• sesame (benne; benni); TJ cultivates search
rom 2026
t
s
• Shadwell mills; O. Evans’s machinery installed at search
g
30, of Barbary and the
v. EtonSeveral
• Shaw, Thomas; Travels, or Observations relating
yParts
r
A
a
S
u
Levant search
in U ed Jan
d
e
t
i
iv
c (Mortimer)
• The Whole Art of Husbandry
hsearch
c
r
a
• Travels, or Observations relating
1878to Several Parts of Barbary and the Levant (Shaw) search
4
2
• Vitruvius Pollio, Marcus;
No. writings of search
• Walker, James; and mill construction search
• Wolff, Christian von; Cours de Mathématique search
7 of 7
Appendix A
App-33
1/30/2026, 3:45 PM
Case 2:21-cr-00190-ART-EJY
Document 339
Filed 02/27/24
Page 1 of 12
(NOTE: Identify Changes with Asterisks (*))
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
UNITED STATES DISTRICT COURT
UNITED STATES OF AMERICA
v.
PAUL ENGSTROM
)
)
)
)
)
*Date of Original Judgment: February 27, 2024. )
)
)
THE DEFENDANT:
AMENDED
JUDGMENT IN A CRIMINAL CASE
Case Number: 2:21-cr-00190-ART-EJY
USM Number: 06870-041
Paul Engstrom, Pro Se
Defendant's Attorney
Joanne
L. Diamond, AFPD (Standby Counsel)
___________________________________________________
Defendant's Attorney
pleaded
guilty
to Counts 1 and 2 of the Superseding Criminal Information filed July 21, 2023 (ECF No. 259).
guilty
to count(s)
pleaded
pleaded nolo contendere to count(s)
which was accepted by the court.
was found guilty on count(s)
after a plea of not guilty.
The defendant is adjudicated guilty of these offenses:
Title&Section
Nature of Offense
21 U.S.C. §§ 846, 841(a)(1)
and (b)(1)(B)(ii)
Conspiracy to Distribute a Controlled
Substance
OffenseEnded
Count
June 21, 2021
1
18 U.S.C. §§ 1956(a)(1)(B)(i)
Money Laundering Conspiracy
June 21, 2021
2
and (h)
The
defendant
is sentenced
asinprovided
in pages 2 through
ofjudgment.
this judgment.
Theissentence
is imposed
The
defendant
is sentenced
as provided
pages 2 through
of 7this
The sentence
imposed pursuant
to
pursuant
to Reform
the Sentencing
the Sentencing
Act of 1984.Reform Act of 1984.
The defendant has been found not guilty on count(s)
Count(s)
is
are dismissed on the motion of the United States.
It is ordered that the defendant must notify the United States attorney for this district within 30 days of any change of name, residence,
or mailing address until all fines, restitution, costs, and special assessments imposed by this judgment are fully paid. If ordered to pay restitution,
the defendant must notify the court and United States attorney of material changes in economic circumstances.
February 1, 2024
Date of Imposition of Judgment
Signature of Judge
Anne R. Traum, United States District Court Judge
Name and Title of Judge
February 27, 2024
Date
Appendix B
App-34
Case 2:21-cr-00190-ART-EJY
Document 339
Filed 02/27/24
Page 2 of 12
(NOTE: Identify Changes with Asterisks (*))
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
Judgment Page 2
DEFENDANT: Paul Engstrom
CASE NUMBER: 2:21-cr-00190-ART-EJY
IMPRISONMENT
The defendant is hereby committed to the custody of the Federal Bureau of Prisons to be
imprisoned for a total term of:
*FORTY-SIX (46) MONTHS PER COUNT TO RUN CONCURRENT. The defendant shall
received credit for time served.
The court makes the following recommendations to the Bureau of Prisons:
The defendant be designated to a Federal Bureau of Prison facility within close proximity of
Las Vegas, Nevada.
.
The defendant shall surrender for service of sentence at the institution designated by the Bureau of Prisons:
by before
12:00
p.m.
2 p.m.
on on Monday, May 6, 2024.
.
as notified by the United States Marshal.
as notified by the Probation or Pretrial Services Office.
RETURN
I have executed this judgment as follows:
Defendant delivered on
at
to
, with a certified copy of this judgment.
UNITED STATES MARSHAL
By
DEPUTY UNITED STATES MARSHAL
Appendix B
App-35
Case 2:21-cr-00190-ART-EJY
Document 339
Filed 02/27/24
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
Page 3 of 12
(NOTE: Identify Changes with Asterisks (*))
Judgment Page 3
DEFENDANT: Paul Engstrom
CASE NUMBER: 2:21-cr-00190-ART-EJY
SUPERVISED RELEASE
Upon release from imprisonment, you will be on supervised release for a term of:
*TWO (2) YEARS PER COUNT TO RUN CONCURRENT.
MANDATORY CONDITIONS
1.
2.
3.
4.
5.
6.
7.
You must not commit another federal, state or local crime.
You must not unlawfully possess a controlled substance.
You must refrain from any unlawful use of a controlled substance. You must submit to one drug test within 15 days of release from
imprisonment and at least two periodic drug tests thereafter, as determined by the court.
The above drug testing condition is suspended, based on the court's determination that you
pose a low risk of future substance abuse. (check if applicable)
You must make restitution in accordance with 18 U.S.C. §§ 3663 and 3663A or any other statute authorizing a sentence of
restitution. (check if applicable)
You must cooperate in the collection of DNA as directed by the probation officer. (check if applicable)
You must comply with the requirements of the Sex Offender Registration and Notification Act (34 U.S.C. § 20901, et seq.) as
directed by the probation officer, the Bureau of Prisons, or any state sex offender registration agency in the location where you
reside, work, are a student, or were convicted of a qualifying offense. (check if applicable)
You must participate in an approved program for domestic violence. (check if applicable)
You must comply with the standard conditions that have been adopted by this court as well as with any other conditions on the attached
page.
Appendix B
App-36
Case 2:21-cr-00190-ART-EJY
Document 339
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
Filed 02/27/24
Page 4 of 12
(NOTE: Identify Changes with Asterisks (*))
Judgment Page 4
DEFENDANT: Paul Engstrom
CASE NUMBER: 2:21-cr-00190-ART-EJY
STANDARD CONDITIONS OF SUPERVISION
As part of your supervised release, you must comply with the following standard conditions of supervision. These conditions are imposed
because they establish the basic expectations for your behavior while on supervision and identify the minimum tools needed by probation
officers to keep informed, report to the court about, and bring about improvements in your conduct and condition.
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
You must report to the probation office in the federal judicial district where you are authorized to reside within 72 hours of your
release from imprisonment, unless the probation officer instructs you to report to a different probation office or within a different time
frame.
After initially reporting to the probation office, you will receive instructions from the court or the probation officer about how and
when you must report to the probation officer, and you must report to the probation officer as instructed.
You must not knowingly leave the federal judicial district where you are authorized to reside without first getting permission from the
court or the probation officer.
You must answer truthfully the questions asked by your probation officer.
You must live at a place approved by the probation officer. If you plan to change where you live or anything about your living
arrangements (such as the people you live with), you must notify the probation officer at least 10 days before the change. If notifying
the probation officer in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72
hours of becoming aware of a change or expected change.
You must allow the probation officer to visit you at any time at your home or elsewhere, and you must permit the probation officer to
take any items prohibited by the conditions of your supervision that he or she observes in plain view.
You must work full time (at least 30 hours per week) at a lawful type of employment, unless the probation officer excuses you from
doing so. If you do not have full-time employment you must try to find full-time employment, unless the probation officer excuses
you from doing so. If you plan to change where you work or anything about your work (such as your position or your job
responsibilities), you must notify the probation officer at least 10 days before the change. If notifying the probation officer at least 10
days in advance is not possible due to unanticipated circumstances, you must notify the probation officer within 72 hours of
becoming aware of a change or expected change.
You must not communicate or interact with someone you know is engaged in criminal activity. If you know someone has been
convicted of a felony, you must not knowingly communicate or interact with that person without first getting the permission of the
probation officer.
If you are arrested or questioned by a law enforcement officer, you must notify the probation officer within 72 hours.
You must not own, possess, or have access to a firearm, ammunition, destructive device, or dangerous weapon (i.e., anything that was
designed, or was modified for, the specific purpose of causing bodily injury or death to another person such as nunchakus or tasers).
You must not act or make any agreement with a law enforcement agency to act as a confidential human source or informant without
first getting the permission of the court.
If the probation officer determines that you pose a risk to another person (including an organization), the probation officer may
require you to notify the person about the risk and you must comply with that instruction. The probation officer may contact the
person and confirm that you have notified the person about the risk.
You must follow the instructions of the probation officer related to the conditions of supervision.
U.S. Probation Office Use Only
A U.S. probation officer has instructed me on the conditions specified by the court and has provided me with a written copy of this
judgment containing these conditions. For further information regarding these conditions, see Overview of Probation and Supervised
Release Conditions, available at: www.uscourts.gov.
Defendant's Signature
Date
Appendix B
App-37
Case 2:21-cr-00190-ART-EJY
Document 339
Filed 02/27/24
Page 5 of 12
(NOTE: Identify Changes with Asterisks (*))
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
Judgment Page 5
DEFENDANT: Paul Engstrom
CASE NUMBER: 2:21-cr-00190-ART-EJY
SPECIAL CONDITIONS OF SUPERVISION
1.
Access to Financial Information – You must provide the probation officer access to any
requested financial information and authorize the release of any financial information. The
probation office will share financial information with the U.S. Attorney’s Office.
2.
No Contact – You must not communicate, or otherwise interact, with Vincent Cuomo,
Abraham Elliott, and Joseph Krieger, either directly or through someone else, without first
obtaining the permission of the probation office.
3.
Computer Search – Monitoring Software – To ensure compliance with the computer monitoring
condition, you must allow the probation officer to conduct periodic, unannounced searches of any
computers (as defined in 18 U.S.C. § 1030(e)(1)) subject to computer monitoring. These searches
shall be conducted for the purposes of determining whether the computer contains any
prohibited data prior to installation of the monitoring software; to determine whether the
monitoring software is functioning effectively after its installation; and to determine whether there
have been attempts to circumvent the monitoring software after its installation. You must warn
any other people who use these computers that the computers may be subject to searches
pursuant to this condition.
4.
Search and Seizure – You must submit your person, property, house, residence, vehicle, papers,
computers (as defined in 18 U.S.C. § 1030(e)(1)), other electronic communications or data storage
devices or media, or office, to a search conducted by a United States Probation Officer. Failure to
submit to a search may be grounds for revocation of release. You must warn any other occupants
that the premises may be subject to searches pursuant to this condition.
The probation officer may conduct a search under this condition only when reasonable suspicion
exists that you have violated a condition of supervision and that the areas to be searched contain
evidence of this violation. Any search must be conducted at a reasonable time and in a
reasonable manner.
Appendix B
App-38
Case 2:21-cr-00190-ART-EJY
Document 339
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
Filed 02/27/24
Page 6 of 12
(NOTE: Identify Changes with Asterisks (*))
Judgment Page 6
DEFENDANT: Paul Engstrom
CASE NUMBER: 2:21-cr-00190-ART-EJY
CRIMINAL MONETARY PENALTIES
The defendant must pay the total criminal monetary penalties under the schedule of payments on Judgment Page 7.
TOTALS
Assessment
$200.00
NA
NA
The determination of restitution is deferred until
entered after such determination.
NA
NA
. An Amended Judgment in a Criminal Case (AO 245C) will be
The defendant must make restitution (including community restitution) to the following payees in the amount listed below.
If the defendant makes a partial payment, each payee shall receive an approximately proportioned payment, unless specified otherwise in
the priority order or percentage payment column below. However, pursuant to 18 U.S.C. § 3664(i), all nonfederal victims must be paid
before the United States is paid.
Name of Payee
Restitution Ordered
Total Loss***
Priority or Percentage
U.S. District Court, District of Nevada
Attn: Clerk of Court - Finance Department
RE: Case No. 2:21-cr-00190-ART-EJY
333 Las Vegas Blvd., South
Room 1334
Las Vegas, NV 89101
TOTALS
$
$
Restitution amount ordered pursuant to plea agreement $
The defendant must pay interest on restitution and a fine of more than $2,500, unless the restitution or fine is paid in full before the
fifteenth day after the date of the judgment, pursuant to 18 U.S.C. § 3612(f). All of the payment options on Sheet 6 may be subject
to penalties for delinquency and default, pursuant to 18 U.S.C. § 3612(g).
The court determined that the defendant does not have the ability to pay interest and it is ordered that:
the interest requirement is waived for the
the interest requirement for the
fine
fine
restitution.
restitution is modified as follows:
* Amy, Vicky, and Andy Child Pornography Victim Assistance Act of 2018, Pub. L. No. 115-299.
** Justice for Victims of Trafficking Act of 2015, Pub. L. No. 114-22.
*** Findings for the total amount of losses are required under Chapters 109A, 110, 110A, and 113A of Title 18 for offenses committed on
or after September 13, 1994, but before April 23, 1996.
Appendix B
App-39
Case 2:21-cr-00190-ART-EJY
Document 339
Filed 02/27/24
AO 245C (Rev. 09/20) Amended Judgment in a Criminal Case
Page 7 of 12
(NOTE: Identify Changes with Asterisks (*))
DEFENDANT: Paul Engstrom
CASE NUMBER: 2:21-cr-00190-ART-EJY
Judgment Page 7
SCHEDULE OF PAYMENTS
Having assessed the defendants ability to pay, payment of the total criminal monetary penalties is due as follows:
A
Lump sum payment of $200.00 due immediately.
B
Payment to begin immediately (may be combined with
C
Payment in equal
D
Payment in equal
C,
D, or
F below); or
(e.g., weekly, monthly, quarterly) installments of $
over a period of
(e.g., months or years), to commence
(e.g., 30 or 60 days) after the date of this judgment; or
over a period of
(e.g., weekly, monthly, quarterly) installments of $
(e.g., months or years), to commence
(e.g., 30 or 60 days) after release from imprisonment to a
term of supervision; or
E
Payment during the term of supervised release will commence within
(e.g., 30 or 60 days) after release from
imprisonment. The court will set the payment plan based on an assessment of the defendants ability to pay at that time; or
F
Special instructions regarding the payment of criminal monetary penalties:
Unless the court has expressly ordered otherwise, if this judgment imposes imprisonment, payment of criminal monetary penalties is due during
the period of imprisonment. All criminal monetary penalties, except those payments made through the Federal Bureau of Prisons Inmate
Financial Responsibility Program, are made to the clerk of the court.
The defendant shall receive credit for all payments previously made toward any criminal monetary penalties imposed.
Joint and Several
Case Number
Defendant and Co-Defendant Names
(including defendant number)
Total Amount
Joint and Several
Amount
Corresponding Payee,
if appropriate
The defendant shall pay the cost of prosecution.
The defendant shall pay the following court cost(s):
The defendant shall forfeit the defendants interest in the following property to the United States:
See attached Amended Final Order of Forfeiture (ECF No. 331).
Payments shall be applied in the following order: (1) assessment, (2) restitution principal, (3) restitution interest, (4) AVAA assessment,
(5) fine principal, (6) fine interest, (7) community restitution, (8) JVTA assessment, (9) penalties, and (10) costs, including cost of
prosecution and court costs.
Appendix B
App-40
Case
Case
2:21-cr-00190-ART-EJY
2:21-cr-00190-ART-EJY Document
Document339
331 Filed 02/27/24
02/07/24 Page
Page18ofof512
1
2
3
4
UNITED STATES DISTRICT COURT
DISTRICT OF NEVADA
5
6 UNITED STATES OF AMERICA,
Plaintiff,
7
8
2:21-CR-190-ART-EJY
Amended Final Order of Forfeiture
v.
9 PAUL ENGSTROM,
10
11
Defendant.
The United States District Court for the District of Nevada entered a Preliminary
12 Order of Forfeiture under Fed. R. Crim. P. 32.2(b)(1) and (b)(2); 18 U.S.C. § 981(a)(1)(C)
13 with 28 U.S.C. § 2461(c); 21 U.S.C. § 853(a)(1), 853(a)(2), and 853(p); 21 U.S.C. § 881(a)(4)
14 with 28 U.S.C. § 2461(c); 21 U.S.C. § 881(a)(6) with 28 U.S.C. § 2461(c); 18 U.S.C.
15 § 981(a)(1)(A) with 28 U.S.C. § 2461(c); 18 U.S.C. § 981(a)(1)(C) with 28 U.S.C. § 2461(c);
16 and 18 U.S.C. § 982(a)(1) based upon the plea of guilty by Paul Engstrom to the criminal
17 offenses, forfeiting the property set forth in the Plea Agreement and the Forfeiture
18 Allegations of the Superseding Criminal Information and shown by the United States to
19 have the requisite nexus to the offenses to which Paul Engstrom pled guilty. Superseding
20 Criminal Information, ECF No. 259; Plea Agreement, ECF No. 260; Arraignment & Plea,
21 ECF No. 265; Preliminary Order of Forfeiture, ECF No. 266.
22
This Court finds that on the government’s motion, the Court may at any time enter
23 an order of forfeiture or amend an existing order of forfeiture to include subsequently
24 located property or substitute property under Fed. R. Crim. P. 32.2(e) and 32.2(b)(2)(C).
25
The in personam criminal forfeiture money judgment amount of $1,715,577
26 complies with United States v. Lo, 839 F.3d 777 (9th Cir. 2016); Honeycutt v. United States, 581
27 U.S. 443 (2017); United States v. Thompson, 990 F.3d 680 (9th Cir. 2021); and United States v.
28 Prasad, 18 F.4th 313 (9th Cir. 2021).
Appendix B
App-41
Case
Case
2:21-cr-00190-ART-EJY
2:21-cr-00190-ART-EJY Document
Document339
331 Filed 02/27/24
02/07/24 Page
Page29ofof512
This Court finds the United States published the notice of forfeiture in accordance
1
2
with the law via the official government internet forfeiture site, www.forfeiture.gov,
3
consecutively from July 27, 2023, through August 25, 2023, notifying all potential third
4
parties of their right to petition the Court. Notice of Filing Proof of Publication, ECF No.
5
284-1, p. 5.
6
This Court finds the United States notified known third parties of their right to
7
petition the Court by regular mail and certified mail return receipt requested. Notice of
8
Filing Service of Process – Mailing, ECF No. 286; Addendum to Notice of Filing Service of
9
Process – Mailing, ECF No. 290.
10
On August 24, 2023, the United States Attorney’s Office served Crane M.
11
Pomerantz and Vincent Cuomo c/o Crane M. Pomerantz at Clark Hill PLC with copies of
12
the Preliminary Order of Forfeiture and the Notice through regular mail and certified mail
13
return receipt requested. Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 3,
14
7-19.
15
On August 24, 2023, the United States Attorney’s Office served Lucas Gaffney and
16
Joseph Krieger c/o Lucas Gaffney at Gaffney Law with copies of the Preliminary Order of
17
Forfeiture and the Notice through regular mail and certified mail return receipt requested.
18
Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 3, 7-15, 20-22.
19
On August 24, 2023, the United States Attorney’s Office served Abraham Elliott c/o
20
Kendall S. Stone at Pitaro & Fumo, Chtd. with copies of the Preliminary Order of
21
Forfeiture and the Notice through regular mail and certified mail return receipt requested.
22
Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 3, 7-15, 23-25.
23
On August 24, 2023, the United States Attorney’s Office served and attempted to
24
serve Kendall S. Stone, Attorney for Abraham Elliott at Pitaro & Fumo, Chtd. with copies
25
of the Preliminary Order of Forfeiture and the Notice through regular mail and certified
26
mail return receipt requested. The regular mail was not returned. The status of the certified
27
mail is unknown as the US Postal Service has the document listed as in transit since August
28
28, 2023. Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 3, 7-15, 26-28.
2
Appendix B
App-42
Case
Case
2:21-cr-00190-ART-EJY
2:21-cr-00190-ART-EJYDocument
Document
339
331 Filed
Filed02/27/24
02/07/24 Page
Page310
ofof
5 12
1
On August 24, 2023, the United States Attorney’s Office served Abraham Jay Elliott
2
at Midseason Mist Street with copies of the Preliminary Order of Forfeiture and the Notice
3
through regular mail and certified mail return receipt requested. Notice of Filing Service of
4
Process – Mailing, ECF No. 286-1, p. 3, 7-15, 29-31.
5
On August 24, 2023, the United States Attorney’s Office served and attempted to
6
serve Abraham Jay Elliott at Lonesome Biker Lane with copies of the Preliminary Order of
7
Forfeiture and the Notice through regular mail and certified mail return receipt requested.
8
The regular mail was not returned. The certified mail was returned as unclaimed and unable
9
to forward. Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 3, 7-15, 32-34.
10
On August 24, 2023, the United States Attorney’s Office served Virginia Engstrom at
11
Saint Augustine Lane with copies of the Preliminary Order of Forfeiture and the Notice
12
through regular mail and certified mail return receipt requested. Notice of Filing Service of
13
Process – Mailing, ECF No. 286-1, p. 7-15, 35-36; Addendum to Notice of Filing Service of
14
Process – Mailing, ECF No. 290.
15
On August 24, 2023, the United States Attorney’s Office served and attempted to
16
serve Virginia Engstrom at Southern Highlands Pkwy with copies of the Preliminary Order
17
of Forfeiture and the Notice through regular mail and certified mail return receipt requested.
18
The regular mail was not returned. The certified mail was returned as unclaimed and unable
19
to forward. Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 4-15, 38-40.
20
On August 24, 2023, the United States Attorney’s Office served and attempted to
21
serve Daniel Krynzel at Saint Augustine Lane with copies of the Preliminary Order of
22
Forfeiture and the Notice through regular mail and certified mail return receipt requested.
23
The regular mail was not returned. The certified mail was returned as unclaimed and unable
24
to forward. Notice of Filing Service of Process – Mailing, ECF No. 286-1, p. 4, 7-15, 41-43.
25
On August 24, 2023, the United States Attorney’s Office served Daniel Krynzel at
26
Southern Highlands Pkwy with copies of the Preliminary Order of Forfeiture and the Notice
27
through regular mail and certified mail return receipt requested. Notice of Filing Service of
28
Process – Mailing, ECF No. 286-1, p. 4, 7-15, 44-46.
3
Appendix B
App-43
Case
Case
2:21-cr-00190-ART-EJY
2:21-cr-00190-ART-EJYDocument
Document
339
331 Filed
Filed02/27/24
02/07/24 Page
Page411
ofof
5 12
1
On August 24, 2023, the United States Attorney’s Office attempted to serve Daniel
2
Krynzel at Russell Road with copies of the Preliminary Order of Forfeiture and the Notice
3
through regular mail and certified mail return receipt requested. The regular mail and
4
certified mail were both returned as attempted not known and unable to forward. Notice of
5
Filing Service of Process – Mailing, ECF No. 286-1, p. 4, 7-15, 47-49.
6
7
8
9
10
This Court finds no petition was filed herein by or on behalf of any person or entity
and the time for filing such petitions and claims has expired.
This Court finds no petitions are pending regarding the property named herein and
the time has expired for presenting such petitions.
THEREFORE, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that
11
all possessory rights, ownership rights, and all rights, titles, and interests in the property
12
hereinafter described are condemned, forfeited, and vested in the United States:
13
14
15
16
17
18
19
20
21
1. 2020 smokey gray Harley-Davidson Touring, VIN 1HD1TEH23LB954585,
bearing Nevada License plate number STINKS;
2. 2019 white Ducati Racer Motorcycle, VIN ZDMVABDS0KB007875, bearing
Nevada License plate number KNZL;
3. 2019 black Ducati Cruiser Motorcycle, VIN ZDM13BKW2KB010548, bearing
Nevada License plate number XDVL;
4. 2019 titanium gray and black Ducati X Diavel Motorcycle, VIN
ZDM13BKW1MB000502, bearing Nevada License plate number NX191017;
5. 2021 black hole with pinstripe Harley Davidson Cruiser, VIN
22
1HD1TCL13MB952002, bearing Nevada License plate number 910044;
23
6. 2020 red Ducati Superleggera Motorcycle, VIN ZDMDAGUW1LB000138;
24
7. 284.742879735905 Monero Cryptocurrency
25
(all of which constitutes property); and
26
that the United States recover from Paul Engstrom the in personam criminal
27
forfeiture money judgment of $1,715,577, not to be held jointly and severally liable with any
28
codefendants, the collected money judgment amount between the codefendants is not to
4
Appendix B
App-44
Case
Case
2:21-cr-00190-ART-EJY
2:21-cr-00190-ART-EJYDocument
Document
339
331 Filed
Filed02/27/24
02/07/24 Page
Page512
ofof
5 12
1
exceed $1,715,577 to ensure the government does not collect more than the forfeitable
2
amount based on the forfeiture statutes and Ninth Circuit cases, and that the property will
3
be applied toward the payment of the money judgment under Ninth Circuit case law,
4
forfeiture statutes, and Fed. R. Crim. P. 32.2(b)(2)(A); and
5
the forfeiture of the money judgment and the property is imposed under Fed. R. Crim.
6
P. 32.2(b)(4)(A) and (b)(4)(B); Fed. R. Crim. P. 32.2(c)(2); 18 U.S.C. § 981(a)(1)(C) with 28
7
U.S.C. § 2461(c); 21 U.S.C. § 853(a)(1), 853(a)(2), and 853(p); 21 U.S.C. § 881(a)(4) with 28
8
U.S.C. § 2461(c); 21 U.S.C. § 881(a)(6) with 28 U.S.C. § 2461(c); 18 U.S.C. § 981(a)(1)(A)
9
with 28 U.S.C. § 2461(c); 18 U.S.C. § 981(a)(1)(C) with 28 U.S.C. § 2461(c); 18 U.S.C.
10
§ 982(a)(1); and 21 U.S.C. § 853(n)(7); that the money judgment shall be collected; and that
11
the property and the collected amount shall be disposed of according to law.
12
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that under Fed. R.
13
Crim. P. 32.2(c) and 21 U.S.C. § 853(n)(7), all possessory rights, ownership rights, and all
14
rights, titles, and interests in the property are extinguished and are not recognized for Paul
15
Engstrom, Vincent Cuomo, Joseph Krieger, Abraham Jay Elliott, Virginia Engstrom,
16
Daniel Krynzel, and all third parties.
17
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that any and all
18
forfeited funds, including but not limited to, currency, currency equivalents, certificates of
19
deposit, as well as any income derived as a result of the government’s management of any
20
property forfeited herein, and the proceeds from the sale of any forfeited property shall be
21
disposed of according to law.
22
IT IS FURTHER ORDERED, ADJUDGED, AND DECREED that the Clerk send
23
copies of this Order to all counsel of record and three certified copies to the United States
24
Attorney’s Office, Attention Asset Forfeiture Unit.
25
DATED February 7, 2024.
26
27
28
ANNE R. TRAUM
UNITED STATES DISTRICT JUDGE
5
Appendix B
App-45
Case: 24-1878, 04/22/2026, DktEntry: 70.1, Page 1 of 1
FILED
UNITED STATES COURT OF APPEALS
APR 22 2026
FOR THE NINTH CIRCUIT
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA,
Plaintiff - Appellant,
v.
PAUL ENGSTROM,
No. 24-1878
D.C. No.
2:21-cr-00190-ART-EJY-1
District of Nevada,
Las Vegas
ORDER
Defendant - Appellee.
Before: HAMILTON, R. NELSON, and BUMATAY, Circuit Judges.*
The panel unanimously votes to DENY the petition for rehearing. Judges
R. Nelson and Bumatay vote to DENY the petition for rehearing en banc, and Judge
Hamilton so recommends. The full court has been advised of the petition for
rehearing en banc and no judge has requested a vote on whether to rehear the matter
en banc. Fed. R. App. P. 40.
The petition for panel rehearing and the petition for rehearing en banc are
denied.
*
The Honorable David F. Hamilton, United States Circuit Judge for the
Court of Appeals, 7th Circuit, sitting by designation.
Appendix C
App-46
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.