UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 24-932 D.C. Nos. Plaintiff - Appellant, 2:18-cr-00759- CJC-1 v. 2:18-cr-00759- CJC-1 ROBERT RUNDO; ROBERT 2:18-cr-00759- BOMAN, CJC-2 Defendants - Appellees. OPINION

Appeal from the United States District Court for the Central District of California Cormac J. Carney, Senior District Judge, Presiding

Argued and Submitted June 18, 2024 Pasadena, California

Filed July 18, 2024 Before: RICHARD A. PAEZ and MILAN D. SMITH, JR., Circuit Judges, and JON S. TIGAR, District Judge. *

Opinion by Judge Milan D. Smith, Jr. * The Honorable Jon S. Tigar, United States District Judge for the Northern District of California, sitting by designation. 2 USA V. RUNDO

SUMMARY **

Criminal Law

The panel reversed the district court’s judgment dismissing, based on a claim of selective prosecution, an indictment charging Robert Paul Rundo and Robert Boman with conspiracy to violate the Anti-Riot Act as well as with substantively violating the Act; reinstated the indictment; and remanded the case for trial. The indictment alleges that Rundo is a founding member of the “Rise Above Movement” or “RAM,” an organization that represents itself “as a combat-ready, militant group of a new nationalist white supremacy and identity movement.” It also states that Rundo and his colleagues, including Boman, attended a number of peaceful protests, when they chased down and violently attacked counter-protesters. The district court concluded that the government prosecuted RAM members such as Defendants while ignoring the violence of members of Antifa and related far- left groups because RAM engaged in what the government and many believe is more offensive speech. On a selective prosecution claim, the defendant bears the burden to demonstrate that (1) other similarly situated individuals have not been prosecuted and (2) his prosecution was based on an impermissible motive. Noting that this court has employed both a de novo standard and a clearly erroneous standard when reviewing a ** This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. USA V. RUNDO 3

selective prosecution claim, the panel did not resolve any purported difference because it held that Rundo has no viable selective prosecution claim under any standard of review. As to the first prong, the panel held that Rundo did not meet his burden to establish that similarly situated individuals were not prosecuted, that the district court erred by comparing collective conduct to individual conduct when it referred broadly to “Antifa and far-left groups” and comparing them to “Defendants,” and that the district court erred in holding that the individual Antifa members it did discuss were similarly situated to Rundo. As to the second prong, the panel held that Rundo failed to meet his burden to demonstrate that his prosecution was based on an impermissible motive. The panel explained that timing is a permissible reason to selectively prosecute; that Defendants’ statistics are unimpressive; and that Defendants’ other alleged sources of improper motive—a press release by the U.S. Attorney’s Office published after Rundo’s indictment was issued, al