Petition for Writ of Certiorari — Robert Alvin Justus, Jr., Petitioner v. United States

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________________________

ROBERT ALVIN JUSTUS, Jr., PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

___________________

VICKI MAROLT BUCHANAN

Vicki Marolt Buchanan, P.C.

19201 Sonoma Highway, #243

Sonoma, CA 95476

(707) 343-1907

Counsel for Petitioner

Robert Alvin Justus, Jr.

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________________________

ROBERT ALVIN JUSTUS, Jr., PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

MOTION FOR LEAVE TO PROCEED

IN FORMA PAUPERIS

___________________

The Petitioner, ROBERT ALVIN JUSTUS, Jr., by his undersigned

counsel, asks leave to file the attached Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit, without prepayment of

costs and to proceed in forma pauperis. Vicki Marolt Buchanan was

appointed counsel for Mr. Justus in the court of appeals under the Criminal

Justice Act, 18 U.S.C. § 3006A(b).

***

This motion is brought pursuant to Rule 39.1 of the Rules of the

Supreme Court of the United States.

Dated: July 17, 2026

Respectfully submitted,

s/ Vicki Marolt Buchanan

____________________

Vicki Marolt Buchanan

19201 Sonoma Highway, #243

Sonoma, CA 92660

(707) 343-1907

Counsel for Petitioner

Robert Alvin Justus, Jr.

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________________________

ROBERT ALVIN JUSTUS, Jr., PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

PETITION FOR WRIT OF CERTIORARI

________________

VICKI MAROLT BUCHANAN

Vicki Marolt Buchanan, P.C.

19201 Sonoma Highway, #243

Sonoma, CA 95476

(707) 343-1907

Counsel for Petitioner

Robert Alvin Justus, Jr.

QUESTIONS PRESENTED

In a first-degree murder case, was the Ninth Circuit’s approval of the

admission of social media posts and “likes” of posts, specifically intended

to prejudice the jury by highlighting petitioner’s political beliefs, the kind

of egregious error that brings the judicial system into disrepute and results

in a miscarriage of justice, warranting this Court’s exercise of its

institutional interest in ensuring that the legal proceeding was fair to all

who observed it?

Given a defendant's Sixth Amendment right to present testimony in

his own words in his defense at trial, should the court be permitted to

instruct the jury to ignore his state-of-mind defense if the words he chose

could also describe an unavailable duress defense?

i

PARTIES TO THE PROCEEDING

Petitioner, Robert Alvin Justus, Jr., is an individual. The

Respondent is the United States of America.

ii

TABLE OF CONTENTS

QUESTION PRESENTED……………………………………………i

PARTIES TO THE PROCEEDING……………………………….… ii

TABLE OF CONTENTS…………………………………………… iii

INDEX TO APPENDIX ...................................................................... v

TABLE OF AUTHORITIES .............................................................. vi

OPINION BELOW .............................................................................. 1

JURISDICTION OF THE SUPREME COURT OF THE UNITED

STATES ............................................................................................... 2

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED ......................................................................................... 2

STATEMENT OF THE CASE ............................................................ 3

Jurisdiction of Court Below ....................................................... 3

Background and District Court Proceedings.............................. 3

Decision Below .......................................................................... 8

REASONS FOR GRANTING THE WRIT ......................................... 9

I.

Without Requiring an Explicit Balancing of Prejudice Versus

Probative Value, the Ninth Circuit’s Decision Approving the

Wholesale Admission of Social Media Posts, so the Jury Would

Judge Petitioner by “What He Believed,” Rather than by What

He Intended on the Night of the Murder, Is the Type of

Egregious Error that Should be Remedied by this Court. .......... 9

iii

TABLE OF CONTENTS - Continued

II.

The Ninth Circuit Opinion Approves of an Instruction Violating

the Sixth Amendment, Depriving a First-Degree Murder

Defendant of their State-of-Mind Defense Because the Words

He Used in His Trial Testimony Might Have Described a

Legally Unavailable Duress Defense ....................................... 20

CONCLUSION .................................................................................. 25

iv

INDEX TO APPENDIX

APPENDIX A:

Ninth Circuit Opinion, Ninth Circuit Case No. 241641

December 19, 2025

APPENDIX B:

Ninth Circuit Order denying Appellant’s Petition

for Rehearing and/or Rehearing En Banc

April 21, 2026

APPENDIX C:

District Court Judgment in Criminal Case, United

States District Court for the Northern District of

California, Case Number CR-00265-02 YGR

March 19, 2024

APPENDIX D:

District Court Amended Judgment in Criminal

Case, United States District Court for the Northern

District of California, Case Number CR-00265-02

YGR

December 12, 2024

v

TABLE OF AUTHORITIES

Cases:

Bland v. Roberts,

730 F.3d 368 (4th Cir. 2013) .............................................................. 11

Greenlaw v. United States,

554 U.S. 237 (2008) ........................................................................... 18

Huddleston v. United States,

485 U.S. 681 (1988) ........................................................................... 12

Hunter v. United States,

608 U.S. ___, 146 S. Ct. 1702 (2026) ................................................ 20

New York Cent. R. Co. v. Johnson,

279 U.S. 310 (1929) ........................................................................... 18

Packingham v. North Carolina,

582 U.S. 98 (2017) ............................................................................. 10

Reno v. Am. Civ. Liberties Union,

521 U.S. 844 (1997) ........................................................................... 10

Rock v. Arkansas,

483 U.S. 44 (1987) ............................................................................. 22

Thunder Studios, Inc. v. Kazal,

13 F.4th 735 (9th Cir. 2021)............................................................... 11

United States v. Curtin,

489 F.3d 935 (9th Cir. 2007) .............................................................. 14

United States v. Davidson,

108 F.4th 706 (8th Cir. 2024)............................................................. 23

vi

TABLE OF AUTHORITIES - Continued

United States v. LaFleur,

971 F.2d 200 (9th Cir. 1991) .............................................................. 21

United States v. Mezzanatto,

513 U.S. 196 (1995) ........................................................................... 18

Wheat v. United States,

486 U.S. 153 (1988) ........................................................................... 18

Constitution:

U.S. CONST. amend. I ........................................................................... 2

U.S. CONST. amend. VI ........................................................................ 2

Statutes:

18 U.S.C. § 3231 .................................................................................. 3

28 U.S.C. § 1254(1) ............................................................................. 2

28 U.S.C. § 1291 .................................................................................. 3

Rules:

Fed. R. Evid. 401................................................................................ 12

Fed. R. Evid. 402................................................................................ 12

Fed. R. Evid. 403.......................................................................... 12, 15

Fed. R. Evid. 404(b) ........................................................................... 12

vii

No. __________

IN THE

SUPREME COURT OF THE UNITED STATES

_______________________________________

ROBERT ALVIN JUSTUS, JR., PETITIONER

vs.

UNITED STATES OF AMERICA, RESPONDENT

________________

ON PETITION FOR A WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

________________

PETITION FOR WRIT OF CERTIORARI

________________

ROBERT ALVIN JUSTIS, JR. petitions this Court for a writ of

certiorari to review the judgment and opinion of the United States Court

of Appeals for the Ninth Circuit.

OPINION BELOW

On December 19, 2025, the Ninth Circuit Court of Appeals

issued a Published Opinion that affirmed Petitioner’s Conviction and

Sentence. (Appendix A.)

1

JURISDICTION

The Ninth Circuit Court of Appeals judgment is dated

December 19, 2025. (Appendix A.) Petitioner timely filed a Petition

for Rehearing and a Petition for Rehearing En Banc, which were

denied on April 21, 2026. (Appendix B.) Petitioner invokes this

Court’s jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

INVOLVED

U.S. CONST. amend. I

Congress shall make no law respecting an establishment of

religion, or prohibiting the free exercise thereof; or abridging the

freedom of speech, or of the press; or the right of the people peaceably

to assemble, and to petition the government for a redress of

grievances.

U.S. CONST. amend. VI

In all criminal prosecutions, the accused shall enjoy the right to

a speedy and public trial, by an impartial jury of the state and district

wherein the crime shall have been committed, which district shall

have been previously ascertained by law, and to be informed of the

nature and cause of the accusation; to be confronted with the

witnesses against him; to have compulsory process for obtaining

witnesses in his favor, and to have the assistance of counsel for his

defense.

2

STATEMENT OF THE CASE

Jurisdiction of the Court Below

The district court had jurisdiction under 18 U.S.C. § 3231. The

Court of Appeals had jurisdiction under 28 U.S.C. § 1291.

Background and District Court Proceedings

Robert Justus was involved in an incident on May 29, 2020, the

night of the George Floyd protests in Oakland, California, when

Steven Carrillo, whom Justus had met a few hours earlier, shot two

federal security officers at a guard shack at the Oakland federal

courthouse. Patrick Underwood died, and Sombat Mifkovic was

seriously injured. Justus was indicted on two counts of aiding and

abetting first-degree murder and attempted first-degree murder of an

employee of the United States government.

Justus was driving a van through an intersection across from the

federal courthouse in Oakland when Steven Carrillo opened a sliding

door and shot two federal security officers, killing one and injuring

the other. Justus met Carrillo three hours earlier when Carrillo offered

him a ride to a George Floyd protest. Justus did not know Carrillo was

paranoid, delusional, and had poor impulse control. He had a van full

of weapons and was prepared to shoot anyone he thought was a threat.

3

The issue in the case was what Justus intended when he drove through

the intersection. Was it to help Carrillo commit murder, or was it to

prevent him from doing so?

Justus testified at trial, and the government did not challenge

his testimony or his version of events. His trial testimony was

identical to the testimony he voluntarily gave to the FBI a few days

after the incident.

Justus was 31 years old and had a minor, non-violent criminal

history. He had two sons and had been continuously employed as a

locksmith since high school. He had Facebook and Instagram

accounts. He joined Facebook groups focused on motorcycles,

aquariums, hiking, camping, and fathers’ rights. Politically, he

considered himself a Libertarian. In 2019, he joined a Facebook group

for the Boogaloo Boys, a right-wing, anti-government group known

for wearing Hawaiian shirts as part of its uniform. According to the

government’s expert, at the time of the shooting, despite some violent

talk and memes, the Boogaloo Boys were not involved in any

significant violence.

It was on this site that Justus met Carrillo. Justus wanted to

attend the George Floyd protest. None of his family or friends were

4

interested, so he asked on Facebook whether anyone was going.

Carrillo said he was interested. Justus confirmed with a mutual friend

on Facebook that Carrillo was okay. As it turns out, he was not okay.

He was a master sergeant in the Air Force who was later diagnosed

with “major depression, hypomania, paranoid delusions, and poor

impulse control.”

Carrillo arranged to pick up Justus at the San Leandro BART

station near Justus's workplace. Justus brought a backpack containing

a sweater, a bottle of water, a first-aid kit, small firecrackers, and baby

oil for his eyes in case of pepper spray. Carrillo arrived at 7:00 pm in

a white van. When Justus got in the van, the front and back were

separated by black curtains.

Carrillo pulled open the curtains. The back of the van was filled

with boxes, blankets, and weapons. He pulled out an AR-type rifle

and began grabbing ammunition. He offered Justus a gun. When

Justus refused, Carrillo pointed the gun at him and asked whether he

was a cop or a rat.

Carrillo saw a bus driver walking around the parking lot,

talking on his cell phone. He grew fidgety and paranoid, thinking the

driver was calling the cops and that he had to stop him. He was ready

5

to shoot the driver when Justus convinced him to “leave the guy

alone.”

Justus considered “getting out of there,” but he feared that if he

tried to leave, Carrillo would shoot him in the mostly empty parking

lot. He said he was “scared as hell” and did not know what to do.

He stayed in the van and drove as instructed toward Oakland.

At one point, Carrillo ordered him to pull off the road and remove the

van’s license plates. Carrillo remained behind the curtain in the back

of the van, peeking out the back window.

Over the next hour or so, Justus looked for parking. He was

able to stop Carrillo from shooting a couple who were arguing, a

police helicopter, and three police officers in a plaza.

At one point, Justus was able to leave the van. He considered

not returning, but after seeing a group of children about the same age

as his own children, he changed his mind. He was afraid that if he left

Carrillo alone, Carrillo would start shooting people. He decided to

return, get back in the van, get on the freeway, and just get him and

Carrillo “the hell away” from everyone.

When he got back, Carrillo was talking about shooting a man in

a suit in the car behind them. Justus convinced him the man was not a

6

threat. Then Carrillo started talking about shooting the security guards

across the street. Once again, Justus thought he had convinced Carrillo

to back off.

As he had done in response to Carrillo’s threat against the

police in the plaza, Justus pulled out of the parking space and headed

down the street. Surveillance video shows that within a few seconds,

Carrillo opened the van door and began spraying bullets at the guard

shack. Justus said he was shocked, scared, and sick.

At first, Carrillo wanted Justus to drive to an empty parking lot

in Antioch. Justus refused, fearing Carrillo would shoot him and

throw him in a ditch. Finally, Carrillo agreed that Justus could drive to

his home in Millbrae. He got out a few blocks from his apartment

because he did not want Carrillo to know where he lived.

In the morning, Justus told his father what happened. He

wanted to wait for his mother to return from Oregon so he could get

her advice on what to do. In the meantime, he threw his jacket and

backpack in a dumpster and deleted Facebook messages with Carrillo

and a couple of Facebook friends. He exchanged a few messages with

Carrillo to avoid making him paranoid. On Monday, he went to work.

7

On June 6, 2020, Justus learned that Carrillo was involved in a

shootout in Ben Lomond, killing a Santa Cruz Sheriff’s Deputy and

injuring another. A few days later, after receiving a message from the

Santa Cruz County District Attorney, Justus, his father, and mother

went to the San Francisco FBI office, where he gave a six-hour

interview.

He gave the FBI permission to search his phone and apartment.

The government obtained 6,500 pages of social media posts, the vast

majority of which concerned his family, hobbies, and sports. In the

apartment, the FBI found no firearms and no Boogaloo paraphernalia.

It also found the type of small firecrackers Justus said he took to the

protests.

Decision Below

Petitioner was indicted for aiding and abetting First Degree

Murder of a Person Assisting an Officer or Employee of the United

States Government. The case was presided over by a District Court

Judge whose courtroom was in the building where the crime occurred.

Stephen Corrillo pleaded guilty to lesser charges and was sentenced to

41 years, with the possibility of release.

8

Petitioner chose to go to trial and was convicted on both counts.

On December 2, 2024, he was sentenced to a mandatory life sentence

without the possibility of release. (Appendix C.) He appealed his

conviction and sentence, which were affirmed in a published opinion

dated December 19, 2025. (Appendix A.) Petitioner filed a Petition

for Rehearing and Rehearing en banc, both of which were denied on

April 21, 2026. (Appendix B.)

REASONS FOR GRANTING THE WRIT

I.

Without Requiring an Explicit Balancing of Prejudice

Versus Probative Value, the Ninth Circuit’s Decision

Approving the Wholesale Admission of Social Media Posts,

So the Jury Would Judge Petitioner by “What He

Believed,” Rather than by What He Intended on the Night

of the Murder, Is the Type of Egregious Error that Should

be Remedied by this Court.

The published Opinion approves admitting extensive,

politically charged speech and “likes” as proof of intent when no plan,

agreement, or imminent violent action is shown, and it expressly does

so to allow juries to judge “who the person is” and “what he

believed.” The Ninth Circuit’s Opinion conflicts with core First

Amendment principles and this Court’s precedent cautioning against

conviction based on character or beliefs rather than conduct. The

decision below authorizes life imprisonment not for what a defendant

9

planned, intended, or did, but for what he believed, what he said, and

what he “liked” online.

Justus did not shoot anyone, plan to shoot anyone, or encourage

Carrillo to shoot anyone. Instead, the record shows a frightened man

trying to deal with an armed, unstable person to keep him from

harming others. Yet the jury never meaningfully evaluated that

evidence. Instead, it was invited to convict Justus because of his

political beliefs. None of his beliefs and none of the social media

involved Justus personally planning to commit murder with Carrillo

or anyone else.

The government’s evidence in this case came mostly from

Justus’ phone, which he voluntarily gave to the FBI. The FBI obtained

over 6,500 pages of material. The vast majority of it pertained to other

interests and to photos of family and friends. The government selected

175 strategically advantageous posts and “likes” of other people’s

posts, as well as six conversations, as evidence.

Such social media, including emails, tweets, and Facebook

posts, offer a capacity for communication and are protected by the

First Amendment. Packingham v. North Carolina, 582 U.S. 98, 104105 (2017). This Court explained,

10

[o]n Facebook, for example, users can debate religion

and politics with their friends and neighbors or share

vacation photos. On LinkedIn, users can look for work,

advertise for employees, or review tips on

entrepreneurship. And on Twitter, users can petition their

elected representatives and otherwise engage with them

in a direct manner. Indeed, Governors in all 50 States and

almost every Member of Congress have set up accounts

for this purpose. See Brief for Electronic Frontier

Foundation 15–16. In short, social media users employ

these websites to engage in a wide array of protected

First Amendment activity on topics “as diverse as human

thought.” Reno, supra, at 870, 117 S. Ct. 2329 (internal

quotation marks omitted).

Id. at 104-105. See also, Reno v. Am. Civ. Liberties Union, 521 U.S.

844, 851 (1997), holding that emails are protected speech.

The admission of political social media statements is often

discussed in the context of “true threats,” which are exempt from First

Amendment protections. In Thunder Studios, Inc. v. Kazal, 13 F.4th

735, 746 (9th Cir. 2021), the Ninth Circuit recognized that “even a

statement that appears to threaten violence may not be a true threat if

the context indicates that it only expressed political opposition or was

emotionally charged rhetoric.” Justus’s failure to follow through on

any of his statements with action shows that they were emotionally

charged rhetoric expressing his political opposition and beliefs.

In Bland v. Roberts, 730 F.3d 368, 386 (4th Cir. 2013), the

Fourth Circuit held that “liking” something on Facebook is protected

11

speech. In Bland, Daniel Ray Carter, Jr., worked for the Hampton,

Virginia, Sheriff’s Office. B.J. Roberts was the Sheriff. Carter claimed

his First Amendment rights were violated when he was fired for

“liking” the Sheriff’s political opponent’s Facebook page. Id. at 372.

The court treated his likes as political speech, “which is entitled to the

highest level of protection.” Id. at 387. The case was remanded for

fact-finding to determine whether his firing was improper because of

his lack of political allegiance to the Sheriff. Much of what Justus

“liked” consisted of posts and memes expressing his political beliefs,

and he should not have been convicted because of them.

When conduct or political belief is at issue before a court

regarding an actor’s state of mind, this Court cautioned that such

evidence cannot be offered solely to prove character. Huddleston v.

United States, 485 U.S. 681, 687-688 (1988). Even if the evidence has

a proper purpose, the court must determine whether the danger of

undue prejudice outweighs its probative value. Id. at 688.

In this case, the government wanted to admit 198 of Justus’

social media posts and six conversations. Justus objected under Fed.

R. Evid. 401, 402, 403, and 404(b) and provided a detailed chart

listing each post and the corresponding objection.

12

Justus agreed that some posts surrounding his and Carrillo’s

virtual introduction through Boogaloo-related groups were relevant.

He also agreed that posts and “likes” between Carrillo and Justus

around May 29, 2020, were admissible to show Justus’ state of mind

on the day of the shooting.

He objected to all six conversations because none were between

him and Carrillo. The conversations were with a Facebook friend he

had met in a motorcycle group, and they occurred six months before

the shooting. These were personal conversations about their children,

born of frustration and anger with family courts, the government, and

the use of excessive force by law enforcement.

The defense argued that many of the social media posts and

memes were highly prejudicial. It further argued that the purpose of

the social media evidence was to elicit an emotional reaction to

Justus’s posts. Some posts reflect Justus’s anger and frustration with

the government, law enforcement, and the family courts. Some

statements express what he wishes would happen.

At one point, during the argument on the admissibility of the

evidence, the defense noted that one of the posts Justus “liked”

addressed “horrible events” such as Ruby Ridge, Waco, and

13

September 11. The court countered, “Well, horrible events that he

apparently liked. Right?” The court continued, “This is something that

he actually, for whatever reason, chose to – to give it a thumbs

up…The jury needs to understand who the person is in front of them

to understand whether or not they believe he had the appropriate state

of mind.”

The Ninth Circuit cautioned against this type of evidence,

which reflects a person’s character or beliefs, because it “carries with

it the inherent potential to see defendant simply as a bad person and

then to convict because of who he is rather than what he did.” United

States v. Curtin, 489 F.3d 935, 958 (9th Cir. 2007). The court stated

that a court abuses its discretion when, “as a matter of law, a court

does not properly exercise its balancing discretion under Rule 403

when it fails to place on the scales and personally examine and

evaluate all that it must weigh.” Curtin, 469 F.3d at 958; see also

Huddleston, 485 U.S. at 691. In this case, the court did not “balance”

the prejudicial effect of admitting 175 social media exhibits. Instead

of balancing probative value against prejudicial effect, the court chose

prejudice.

14

One of Petitioner’s main appellate arguments was that the

district court failed to conduct a balancing test. In its Opinion, the

Ninth Circuit mischaracterized the record, claiming that the District

Court “did not explicitly discuss Rule 403 in its written order

regarding the social media evidence, the record shows that it engaged

in this analysis” (Opinion at 12). The record shows no such thing.

The court never used the word “prejudice” in the transcripts of

the arguments or in its ruling on the in limine motion regarding social

media evidence. It also never used the word “balance.” The only time

it mentioned “balancing” in relation to social media was when the

government offered two new social media exhibits during the trial. In

fact, the social media in limine motion was the only in limine motion

in which the court did not mention “prejudice” or Rule 403 in its

order.

The court did not mention prejudice of Rule 403 because it

failed to perform its essential evidentiary function to evaluate the

admission of inflammatory evidence. The Ninth Circuit brushed off

the error by claiming that the court “implicitly conducted a 403

analysis” because it admitted the evidence. (Opinion at 12.)

15

The prejudice from this evidence was profound. Over two days,

the government read and published 80 posts, “likes” of posts and

memes without context or comment. The government described its

presentation of the social media evidence as a “long slog.” Some posts

reflect Justus’s anger and frustration with the government, law

enforcement, and the family courts. Some statements express what he

wishes would happen. Some of the memes, none of which he created,

are disturbing and depict violence against police.

The purpose of the social media evidence was to elicit an

emotional reaction to Justus’s posts. It is likely that a jury concluded

that Justus deserved punishment for his beliefs and the memes he

“liked,” regardless of whether he intended to help Carrillo murder

anyone. In the jurors’ minds, Justus was the “type of person” who

could form the state of mind to help Carrillo commit murder.

During its closing, the government emphasized that the jury

should judge Justus on what he believed rather than what he did or

intended

So coming back to Dr. Perliger for a moment, his

testimony helps you understand the special terms that

Robert Justus used as someone who was participating in

Boogaloo, the depth of his convictions because you have

the weight of so many communications over so many

months. And his testimony – Dr. Perliger's testimony

16

gives you a better idea of who Robert Justus is and what

he believed in.

Who he was and what he believed in the night that

he chose to go with Steven Carrillo.

Who he was and what he believed in when he

returned to the van the first time on that night.

Who he was and what he believed in when he went

back to the van a second time.

Who he was and what he believed in when he

drove the van in just the right way to allow Steven

Carrillo to shoot the two Protective Security Officers.

Who he was and what he believed in when he went

home and continued to post his commitment to the cause.

The social media evidence was intended to cast Justus in a

negative light. The government told the jury that his conviction should

turn on “the depth of his convictions” and “the weight of so many

communications over so many months,” i.e., his political beliefs

rather than evidence that he intended to commit murder. Justus was

likely convicted because of “who he is” and “what he believed” rather

than “what he intended.”

This is not merely a discretionary evidentiary ruling in

compliance with the rules of evidence. Here, both the district court

and the court of appeals completely ignored the rules. The Ninth

Circuit distorted the record to uphold the district court’s failure to

17

perform its essential duty to balance the prejudicial use of political

speech against its probative value.

In United States v. Mezzanatto, 513 U.S. 196, 204 (1995), this

Court recognized that “[t]here may be some evidentiary provisions

that are so fundamental to the reliability of the factfinding process that

they may never be waived without irreparably discrediting the federal

courts.” Id. at 204 (citations omitted) (cleaned up). The failure to

balance prejudice against probative value should be one of them.

Greenlaw v. United States, 554 U.S. 237, 264 (2008) (ALITO, J.,

dissenting), recognized that this Court has “repeatedly stressed the

importance” of “the interest of the public and the Judiciary in

correcting grossly prejudicial errors of law that undermine confidence

in our legal system.”

As this Court recognized in Wheat v. United States, 486 U.S.

153 (1988), federal courts have an independent institutional interest in

ensuring that legal proceedings “appear fair to all who observe them.”

Id. at 160; Mezzanatto, 513 U.S. at 204. The purposeful use of

prejudicial evidence does not appear fair. The Ninth Circuit’s excusal

of this grossly prejudicial error requires correction.

The situation is similar to what transpired in New York Cent. R.

18

Co. v. Johnson, 279 U.S. 310 (1929). In Johnson, the respondent’s

counsel made numerous prejudicial statements in their closing

arguments. This Court noted that the “obvious purpose and effect” of

counsel’s statements was to improperly influence the verdict by

appealing to passion and prejudice. Id. at 317. This Court found that

“the quoted remarks of respondents’ counsel so plainly tended to

excite prejudice as to be ground for reversal, is, we think, not open to

argument. The judgments must be reversed, with instructions to grant

a new trial.” Id. at 318. Once again, this Court emphasized

it is the duty of the court and counsel alike to uphold, is

concerned that every litigation be fairly and impartially

conducted and that verdicts of juries be rendered only on

the issues made by the pleadings and the evidence. The

public interest requires that the court of its own motion,

as is its power and duty, protect suitors in their right to a

verdict, uninfluenced by the appeals of counsel to passion

or prejudice.

Id. at 318.

The prejudicial and improper purpose of the evidence was

emphasized to the jury in the closing argument. The argument urged the

jury six separate times to judge Justus not by what he intended when he

drove through the intersection on May 29, 2020, but by “who he was” and

“what he believed.” The jury was told that his fate should turn on “the

19

depth of his convictions” and the “weight of so many communications over

so many months.”

The government was allowed to do so because the district court

failed to conduct a prejudice analysis. It was a failure that the Ninth

Circuit Court of Appeals papered over by mischaracterizing the

record. If left uncorrected, this is “the kind of egregious error that

would bring the judicial system into disrepute,” resulting in a

miscarriage of justice. Hunter v. United States, 608 U.S. ___, 146 S.

Ct. 1702, 1708 (2026). As in Johnson, this Court should exercise its

institutional authority, reverse the case, and remand for a new trial.

II.

The Ninth Circuit Opinion Approves of an Instruction

Violating the Sixth Amendment, Depriving a First-Degree

Murder Defendant of Their State-of-Mind Defense Because

the Words He Used in His Trial Testimony Might Have

Described a Legally Unavailable Duress Defense.

After having allowed prejudicial social media evidence, the

district court compounded Justus’s inability to get a fair trial. It gave

an instruction that effectively prevented the jury from considering his

testimony about the circumstances leading to Carrillo murdering and

attempting to murder two federal security guards.

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Based on Justus’s voluntary FBI interview, the government

filed a motion to bar him from telling his story to the jury. Justus

testified that throughout the night, despite being scared and feeling

threatened, he repeatedly intervened to stop Carrillo from shooting a

bus driver, civilians, police officers, and others he perceived as

threats. The government sought to prevent him from testifying about

his state of mind, characterizing it as “duress-like” evidence.

Justus assured the court that he would not present a duress

defense because, as a matter of law, duress is not a defense to firstdegree murder. See United States v. LaFleur, 971 F.2d 200, 206 (9th

Cir. 1991). The court acknowledged that evidence of his state of mind

was central to the trial. Thus, it stated,

Here, the same evidence that is going to be used

where one could argue consent is also evidence of lack of

intent. And it seems to me that the Defense should be

able to offer evidence of intent, but they can’t argue that

the evidence suggests duress. And I can address the issue

by instructing the jury explicitly that duress is not a

defense.

Although the defense disputed the need for such an instruction, it

proposed an instruction stating that “there isn’t a defense of duress,”

but that “the evidence is admissible … and the jury can consider it for

state of mind.”

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The government’s proposed instruction stated that duress is not

a defense to the charged crimes and then set forth the elements of

duress. Justus objected, arguing that the instruction would confuse the

jurors and that it failed to inform the jury that the “duress-like”

evidence could still be used to show Justus’s state of mind,

specifically whether he intended to commit murder. The parties

argued over the formulation of this instruction for weeks.

After Justus testified that he felt “threatened,” was “ordered,”

was “told,” and was “afraid because he thought he was going to be

shot,” the court said, “as a consequence of the testimony, I do believe

the [duress is not a defense] instruction is important.” Although a

defendant has a Sixth Amendment “right to present his own version of

events in his own words,” Rock v. Arkansas, 483 U.S. 44, 51-52

(1987), Justus’s words prompted the court to give an instruction

designed to neutralize those very words.

The resulting instruction was as follows:

The parties dispute the facts.

In general, the same evidence can be used to argue

different factual conclusions.

Duress is not a defense to the particular crimes

charged here. Duress is defined in the law to exist where,

one, there was a present, immediate, or impending threat

22

of death or serious bodily injury to the defendant if the

defendant did not participate in the commission of the

crime; two, the defendant had a well-grounded fear that

the threat of death or serious bodily injury would be

carried out; and, three, the defendant had no reasonable

opportunity to escape the threatened harm.

While duress is not a defense to the particular

crimes charged here, the Government must still prove

beyond a reasonable doubt that the defendant acted with

the intent to help commit the charged crime.

In its Opinion, the Ninth Circuit says that the final sentence

“ensured that the jury considered the duress-like evidence.” (Opinion

at 16.) The sentence says no such thing. Nowhere in that sentence or

in the rest of the instruction is the jury informed that it could consider

Justus’s duress-like testimony for any purpose, including his state of

mind.

The only case found that approved of an instruction stating that

a defendant was not entitled to an affirmative defense was United

States v. Davidson, 108 F.4th 706, 714 n.4 (8th Cir. 2024), which the

government cited and the Ninth Circuit ignored.1 In Davidson, the

district court instructed the jury “[A]s a matter of law . . . self-defense

is not a defense in this case. The testimony you have just heard can be

1

Unlike the instruction here, the Davidson instruction does not

include the elements of the defense.

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considered by you for other purposes regarding intent, but not for selfdefense.”

The Davidson instruction told the jury that the defendant was

not, as a matter of law, entitled to claim self-defense. Here, the

instruction did not tell the jury that duress was not a defense because

it was prohibited by law. Instead, it listed the duress elements, leaving

the jury to wonder whether Justus was not entitled to the duress

defense because he failed to prove one or more elements, including

whether Carrillo was a threat to him or others.

The Davidson instruction also told the jury that “testimony you

have just heard can be considered by you for other purposes regarding

intent.” Here, the jury was never told it could consider Justus’s

testimony regarding intent.

The instruction evolved from Justus agreeing to an instruction

almost identical to the one in Davidson to a version cobbled together

after weeks of argument. The government drafted the instruction, and

the court approved it to negate Justus’s testimony. The result was an

incomprehensible instruction that deprived him of his state-of-mind

defense.

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This case is about words. Without review from this Court,

Justus will spend the rest of his life in prison because of his words in

his social media posts or because he “liked” others’ words. Further,

the jury was prohibited from considering his state-of-mind defense

because of the words he chose to describe what happened on the night

of May 29, 2020, and his state of mind leading up to the moment

Carrillo opened the van doors and began shooting toward the security

guards at the Northern District Oakland courthouse.

CONCLUSION

For these reasons, the Court should grant the petition and

consider this case.

Dated: July 17, 2026

Respectfully submitted,

s/ Vicki Marolt Buchanan

Vicki Marolt Buchanan

Counsel for Petitioner

Robert Alvin Justus, Jr.

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