FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellant,

v.

ANDRES LOPEZ-CRUZ,

Defendant-Appellee.

No. 11-50551

D.C. No. 

3:11-cr-01507-JLS-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Janis L. Sammartino, District Judge, Presiding

Argued and Submitted 

January 7, 2013—Pasadena, California

Filed September 12, 2013

Before: William C. Canby, Jr., Stephen Reinhardt, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt
2 UNITED STATES V. LOPEZ-CRUZ

SUMMARY*

Criminal Law

The panel affirmed the district court’s order suppressing

evidence obtained when a border patrol agent answered

incoming calls on the defendant’s cell phones, and the denial

of the government’s motion for reconsideration of the

suppression order, in a case in which the defendant is charged

with conspiracy to transport illegal aliens.

Rejecting the government’s contention that the defendant

lacked standing, the panel held that the defendant had a

reasonable expectation of privacy in the phones, and that the

district court did not clearly err in finding that the evidence

fell short of demonstrating an unequivocal abandonment.

The panel held that the agent’s answering the calls

exceeded the scope of the defendant’s consent to “look in” or

“search” the phones. Without deciding the constitutionality

of whether an agent can read incoming text messages on a

phone he has been given consent to search, the panel rejected

the government’s attempts to liken incoming calls to text

messages and to liken the consent given by the defendant to

the contents of a search warrant.

The panel held that the district court did not abuse its

discretion in denying the government’s motion for

reconsideration to consider an argument, raised for the first

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

been prepared by court staff for the convenience of the reader.
UNITED STATES V. LOPEZ-CRUZ 3

time in that motion, that exigent circumstances justified

answering the calls.

COUNSEL

Laura E. Duffy, United States Attorney; Bruce R. Castetter,

Assistant United States Attorney, Chief, Appellate Section,

Criminal Division; Daniel E. Butcher (argued), Assistant

United States Attorney, United States Attorneys’ Office, San

Diego, California, for Plaintiff-Appellant. 

Devin Burstein (argued), Federal Defenders of San Diego,

Inc., San Diego, California, for Defendant-Appellee.

OPINION

REINHARDT, Circuit Judge:

When Andres Lopez-Cruz (“Lopez”) gave a border patrol

agent permission to “look in” or “search” the two cell phones

he had with him, the agent did not ask him whether he would

also consent to the agent’s answering any incoming calls. 

Nonetheless, when one of the phones rang while the agent

was conducting his search, he answered it, passing himself

off as Lopez. By answering the call, the agent obtained

information leading to Lopez’s arrest and felony charges of

conspiracy to transport illegal aliens under 8 U.S.C. §§ 1324

(a)(1)(A)(ii) and (v)(I). Lopez moved to suppress the

evidence obtained from the phone calls. The district court

granted the motion to suppress and denied the government’s

motion for reconsideration. The government appeals.
4 UNITED STATES V. LOPEZ-CRUZ

 FACTUAL BACKGROUND

One evening, border patrol agent Soto and his partner

were patrollingHighway80 near Jacumba, California, an area

near the border with Mexico known for the smuggling of

undocumented individuals. The agents began surveillance of

Lopez because he was driving a car that they did not

recognize as belonging to any of the residents of the nearby

small town, and because he was “brake tapping,” behavior

that the agent recognized as consistent with people being

“guided in to pick up somebody or something.” When Lopez

pulled over to the shoulder of the road to make a U-turn, the

agents stopped their unmarked SUV behind him and activated

the lights to indicate that they were law enforcement

personnel.

The agents walked up to the car and agent Soto asked

Lopez where he was going and what he was doing. Lopez

told him that he was going to pick up a friend, border patrol

agent Amawandy, at a nearby casino. He also told the agent

that the car that he was driving belonged to a friend. Agent

Soto testified that he did not ask Lopez who the friend was,

but that Lopez’s “answers changed a lot.”

During their discussion, agent Soto noticed two cell

phones in the car’s center console. Soto asked Lopez whether

the phones were his and Lopez responded that the phones,

like the car, belonged to a friend. The agent then asked, “Can

I look in the phones? Can I search the phones?” Lopez

consented by responding “yes.” When conducting the search

of the phones, Soto took them behind the car, out of Lopez’s

presence where he could neither “see [n]or hear what [the

agent] was doing with the phones.” 
UNITED STATES V. LOPEZ-CRUZ 5

Within about a minute, one of the phones rang. Rather

than ignoring the call or asking Lopez’s permission to answer

it, the agent answered the phone and initiated a conversation

with the caller. The caller asked, “How many did you pick

up?” The agent responded, “none,” and the caller hung up. 

The phone rang again less than two minutes later. The agent

answered again and a different caller asked, “How did it go?” 

The agent replied in Spanish, “I didn’t pick up anybody. 

There was [sic] too many Border Patrol in the area.” The

caller told him to return to San Diego. Shortly thereafter, the

caller phoned again, believing she was speaking with Lopez,

but instead informed agent Soto that there were two people

next to a house where there was a lot of lighting, and gave

instructions to drive there, flash his high beams, and the two

people would come out. 

The agents arrested Lopez and followed the caller’s

instructions, which led them to pick up two people, who

admitted to being Mexican citizens without documents.

PROCEDURAL BACKGROUND

Before trial, Lopez filed a motion to suppress the

evidence obtained when the agent answered the incoming

calls. He contended that the agent exceeded the scope of his

consent. Lopez submitted a declaration stating that he “didn’t

understand that [he] had a choice to say no” when the agents

asked for consent to search the phones and that “[i]t never

occurred to [him] that agents were going to answer incoming

calls on the cell phone.” He further stated that “[h]ad [he]

believed that agents would answer the phones, [he] never

would have given [his] permission to search the phones.” 

The government argued that Lopez did not have standing to

contest the search because he disclaimed ownership of the
6 UNITED STATES V. LOPEZ-CRUZ

phones, or, in the alternative, that answering incoming calls

fell within the scope of Lopez’s consent. The district court

held an evidentiary hearing at which Agent Soto testified and

was cross-examined. After hearing evidence, the district

court requested further briefing on whether answering an

incoming call falls within the scope of consent to search a cell

phone. 

Ultimately, the district court granted Lopez’s motion to

suppress. The court found that Lopez had standing to

challenge the search of the cell phones because “the phones

were in the possession of the defendant and being used by the

defendant at the time of the encounter.” On the scope of

consent issue, the district court applied the “objective

reasonableness standard” and determined that Lopez’s

consent “was limited to an examination of the phone itself

and that further legal justification was required before the

agents answered it.” After full exploration of the issue

through briefing, a hearing, and supplemental briefing, the

district court held that a reasonable person would not “believe

that a consent to look at or search a cell phone would include

consent to answer incoming calls.”

The government, receiving the district court’s permission,

filed a motion for reconsideration. In its motion, the

government contended for the first time that the agent’s

answering of the incoming call was justified by the exigent

circumstances exception to the warrant requirement. The

district court declined to consider the newly raised argument

for two reasons. First, it found that the new evidence that the

government offered “was available at the time of the

evidentiary hearing.” Second, it found that the government

did not “raise[] the exigent circumstances argument in the

initial or supplemental briefing submitted when the court first
UNITED STATES V. LOPEZ-CRUZ 7

considered [the] motion to suppress.” Based on these facts,

the district court “decline[d] to exercise its discretion” to

grant the motion to reconsider. The district court went on to

conclude that in the alternative, even if it were to consider the

newly raised exigent circumstances argument, it would have

rejected it because the agent did not have probable cause. 

The government appeals both the order granting Lopez’s

motion to suppress and the order denying the government’s

motion for reconsideration.

DISCUSSION

I. Standing

We review de novo the district court’s conclusion that

Lopez had standing to claim that his Fourth Amendment

rights were violated when the agent answered incoming calls

intended for Lopez. See United States v. Reyes-Bosque, 596

F.3d 1017, 1026 (9th Cir. 2010). We review the underlying

factual findings for clear error. Id. 

To have standing to seek suppression of the fruits of the

agent’s search, Lopez must show that he personally had “a

property interest protected by the Fourth Amendment that

was interfered with . . . , or a reasonable expectation of

privacy that was invaded by the search.” United States v.

Padilla, 111 F.3d 685, 688 (9th Cir. 1997) (quoting United

States v. Padilla, 508 U.S. 77, 82 (1993)). Here, elements of

both requirements support the district court’s conclusion that

Lopez had standing to contest the agent’s reception of the

phone calls.
8 UNITED STATES V. LOPEZ-CRUZ

The reasonable expectation of privacy turns on (1)

whether the person had “an actual (subjective) expectation of

privacy,” and (2) whether the individual’s subjective

expectation of privacy is “one that society is prepared to

recognize as ‘reasonable.”’ Katz v. United States, 389 U.S.

347, 361 (1967) (Harlan, J., concurring). In short, it turns on

whether the individual’s subjective expectation of privacy is

objectively reasonable. United States v. Ziegler, 474 F.3d

1184, 1189 (9th Cir. 2007) (citation omitted).1

The district court found that “the location of the phones

within the vehicle suggest [sic] that the phones were in the

possession of the defendant and being used by the defendant

at the time of the encounter.” It also noted that “the agents

apparently drew a similar conclusion by seeking defendant’s

consent before seizing the phones.” The district court’s

factual conclusion—that Lopez had possession of and was

using the phones—is not clearly erroneous. Possession and

use of the phones suffices to make Lopez’s expectation of

privacy objectively reasonable. 

Nonetheless, the government argues that Lopez lacks

standing because (1) he did not carryhis burden by presenting

affirmative evidence of ownership or permission to use the

1 The parties dispute which of two automobile search cases controls. 

Lopez argues that United States v. Portillo, 633 F.2d 1313 (9th Cir. 1980)

controls. The government argues that the controlling case is United States

v. Thomas, 447 F.3d 1191 (9th Cir. 2006). Both of these cases, however,

involved the question whether defendants had standing to object to the

search of the vehicle. In contrast, here, the question is whether Lopez has

standing to challenge the search of the phones—items of property not

recovered froma search ofthe vehicle but possessed byLopez and handed

over to the agents with consent to search them. Thus, neither Portillo nor

Thomas controls here. 
UNITED STATES V. LOPEZ-CRUZ 9

seized phones; or, (2) if he met his threshold burden, he

abandoned any reasonable expectation of privacy when he

renounced ownership of the phones. We reject both

arguments.

First, as the government points out, Lopez bears the

burden of establishing standing. The government is incorrect,

however, in asserting that Lopez could not have carried his

burden without providing proof of ownership or additional

proof that he had permission to use the phones beyond the

facts that were already in the record. Contrary to the

government’s assertions, the fact of ownership or permissive

use is merely one factor among many that aids in determining

whether the individual had a reasonable expectation of

privacy in the item searched. See United States v. Sarkisian,

197 F.3d 966, 987 (9th Cir. 1999) (“[T]he failure to allege

ownership of the items seized, by itself, could not bar

standing to challenge the search,” although it is “a factor to be

considered.”). Although we have not announced a precise set

of factors to be considered in determining whether there

exists a reasonable expectation of privacy, the Fifth Circuit

considers: 

whether the defendant has a property or

possessory interest in the thing seized or the

place searched, whether he has a right to

exclude others from that place [or the thing

seized], whether he has exhibited a subjective

expectation of privacy that it would remain

free from governmental intrusion, whether he

took normal precautions to maintain privacy,

and whether he was legitimately on the

premises [or legitimately in possession of the

thing seized].
10 UNITED STATES V. LOPEZ-CRUZ

United States v. Finley, 477 F.3d 250, 258–59 (5th Cir. 2007)

(quoting United States v. Cardoza–Hinojosa, 140 F.3d 610,

615 (5th Cir. 1998)) (original alterations and quotation marks

omitted). Although we do not adopt the Fifth Circuit’s list of

factors as exhaustive, they are among the factors that are

generally relevant to our analysis. 

As the district court found from the facts in the record,

Lopez had possession of the phones and was using them. He

certainly had the right to exclude others from using the

phones. He also had a reasonable expectation of privacy in

incoming calls and a reasonable expectation that the contents

of those calls “would remain free from governmental

intrusion.” Finley, 477 F.3d at 259 (citation omitted). Lopez

“took normal precautions to maintain privacy,” id., in that he

did not abandon or throw the phones out of the car when the

agents stopped him. Finally, no evidence suggested that

Lopez did not legitimately possess the phones. We conclude,

therefore, that Lopez had a reasonable expectation of privacy

in the phones.

The government’s second argument is that Lopez lacks

standing because he voluntarily abandoned the cell phones,

thereby abandoning any expectation of privacy in them. The

government argues that Lopez abandoned anyprivacyinterest

in the phones when he told the officer that they belonged to

a friend. The touchstone of “abandonment is a question of

intent,” however. United States v. Nordling, 804 F.2d 1466,

1469 (9th Cir. 1986). We conduct a “totality of the

circumstances” inquiry that “focus[es] on whether, through

words, acts or other objective indications, a person has

relinquished a reasonable expectation of privacy in the

property at the time of the search or seizure.” Id. (citations

omitted). 
UNITED STATES V. LOPEZ-CRUZ 11

The district court’s factual findings that “the phones were

in the possession of [Lopez] and being used by [him] at the

time of the encounter” were not clearly erroneous, and,

therefore, the government cannot reasonablyclaim that Lopez

abandoned the privacy interest simply by denying ownership. 

The district court’s factual findings support the conclusion

that Lopez did not abandon his reasonable expectation of

privacy in the phones. It found that “[Lopez] told Agent Soto

that the phones belonged to a friend, but he did not disclaim

use of them or otherwise disassociate himself from them.” 

Further, as the district court explained, the fact that the agent

sought Lopez’s permission before searching the phones

suggests that the agent did not believe that Lopez had

abandoned his privacy interest in the phones, and contradicts

the government’s position that his actions exhibited a clear

abandonment of them. 

Moreover, none of our “abandonment” cases has held that

mere disavowal of ownership, without more, constitutes

abandonment of a person’s reasonable expectation of privacy

in that property. For example, in United States v. Decoud, the

defendant disclaimed ownership, but he also explained that

“he did not know how to open” the locked briefcase found in

the trunk of the car that he was driving, thus denying any

form of association with the briefcase. 456 F.3d 996, 1001

(9th Cir. 2006). Likewise, in Nordling, we concluded that the

defendant had abandoned his luggage because he knowingly

left it on the plane under a seat when he was escorted off by

officials and twice denied having had any luggage with him

on the flight. 804 F.2d at 1469–70. Because Lopez’s case

involves only his response to the agent’s question as to

whether the phones were his rather than any affirmative

denial of any association with the phones, the district court’s

conclusion that “the evidence in this case fell short of
12 UNITED STATES V. LOPEZ-CRUZ

demonstrating an unequivocal abandonment of the property”

was not clearly erroneous. 

II. Scope of Consent

“It is a violation of a suspect’s Fourth Amendment rights

for a consensual search to exceed the scope of the consent

given.” United States v. McWeeney, 454 F.3d 1030, 1034

(9th Cir. 2006). The district court determined that the agent’s

act of answering the incoming phone call exceeded the scope

of Lopez’s consent. We review “[a] district court’s finding

as to the scope of consent [] for clear error.” United States v.

Huffhines, 967 F.2d 314, 319 (9th Cir. 1992). The

government argues that the standard of review should be de

novo because this case presents the legal question of whether

a general consent to search a phone includes consent to

answer it. See United States v. Shaibu, 920 F.2d 1423, 1425

(9th Cir. 1990) (noting that a pure question of law in Fourth

Amendment cases is reviewed de novo). Because we reach

the same result under either standard, we consider whether

consent to search a phone, without more, generally includes

consent to answer it. 

The scope of consent is determined by asking “what

would the typical reasonable person have understood by the

exchange between the officer and the suspect?” Florida v.

Jimeno, 500 U.S. 248, 251 (1991). The test is an objective

one. The district court explained that a reasonable person

would not “believe that a consent to look at or search a cell

phone would include consent to answer incoming calls.” It

held that Lopez’s “consent in this case was limited to an

examination of the phone itself and that further legal

justification was required before the agents answered it.” 
UNITED STATES V. LOPEZ-CRUZ 13

At the suppression hearing, the agent testified that he

asked Lopez: “Can I look in the phones? Can I search the

phones?” Lopez submitted a declaration that stated: “It

never occurred to me that agents were going to answer

incoming calls on the cell phone. Had I believed that agents

would answer the phones, I never would have given my

permission to search the phones.” Applying the Jimeno

“reasonable person” standard to these facts, the district court

determined that Lopez’s consent to search the phones did not

extend to answering incoming calls. The district court’s

ruling was correct. 

Nonetheless, the government presses two arguments in

support of its claim that answering incoming calls

categorically falls within the scope of consent to search a

phone. First, the government contends that answering a call

is no different from pushing a button to read an incoming text

message (which it assumes would fall within the scope of a

general consent). Without deciding the constitutionality of

whether an agent can read incoming text messages on a phone

he has been given consent to search, we reject the

government’s attempt to liken incoming calls to text

messages. When an agent answers the incoming call and

engages the caller in conversation, as agent Soto did here, he

intercepts a call intended for the individual in possession of

the phone and pretends to be that person in order to obtain

information or create a new exchange with the caller. The

agent’s impersonation of the intended recipient constitutes a

meaningful difference in the method and scope of the search

in contrast to merely pushing a button in order to view a text

message. The agent is not simply viewing the contents of the

phone (whether incoming text messages or stored messages),

but instead, is actively impersonating the intended recipient. 

Here, agent Soto did so by answering a call, concealing the
14 UNITED STATES V. LOPEZ-CRUZ

fact that he was a border patrol agent, and leading the caller

to believe that the information he was exchanging was with

Lopez. 

The government’s second argument seeks to liken the

consent given by Lopez to the contents of a search warrant. 

The government reasons that because we held that answering

incoming calls did not exceed the scope of the relevant search

warrant in two cases, United States v. Ordonez, 737 F.2d 793,

810 (9th Cir. 1984) (amended opinion), and United States v.

Gallo, 659 F.2d 110 (9th Cir. 1981), the answering of

incoming calls following a consent to search the phones does

not exceed the scope of that consent. Because a search

warrant is materially different from consent, the

government’s argument fails. 

A search pursuant to a warrant is “limited by the extent of

the probable cause” on which the warrant is based. In re

Grand Jury Subpoenas Dated Dec. 10, 1987, 926 F.2d 847,

857 (9th Cir. 1991). In contrast, a search pursuant to consent

is limited by the extent of the consent given for the search by

the individual. Jimeno, 500 U.S. at 251. Unlike a scope of

the search warrant case, in which we review for whether the

evidence seized was “reasonably related to the purpose of the

search” (that is, reasonably related to the probable cause

supporting the issuance of the warrant), Ordonez, 737 F.2d

at 810, in a scope of consent case, we review for what “the

typical reasonable person [would] have understood” the

parties to have said to each other, Jimeno, 500 U.S. at 251. 

Agent Soto did not have a warrant. Accordingly, he did

not have authority to search for evidence that might have

fallen within the scope of a warrant that he did not have. The

only authority to search that agent Soto had was pursuant to
UNITED STATES V. LOPEZ-CRUZ 15

Lopez’s consent. Accordingly, the government’s position

that the reasoning of Gallo and Ordonez applies here is

simply incorrect. An individual who gives consent to the

search of his phone does not, without more, give consent to

his impersonation by a government agent, nor does he give

the agent permission to carry on conversations in which the

agent participates in his name in the conduct of criminal

activity. 

Thus, we reject the government’s position that consent to

search a cell phone extends to answering incoming calls.

Here, the agent’s answering of the phone exceeded the scope

of the consent that he obtained and, thus, violated Lopez’s

Fourth Amendment right. As a general matter, consent to

search a cell phone is insufficient to allow an agent to answer

that phone; rather, specific consent to answer is necessary.

III. The Motion for Reconsideration

The government asks us to reach and accept its argument,

raised for the first time on a motion to reconsider before the

district court, that exigent circumstances justified the

answering of the phone calls. The district court declined to

exercise its discretion to consider this belated argument. It

found that “the exigent circumstances argument was not

raised in the initial or supplemental briefing submitted when

the court first considered Defendant’s motion to suppress,”

and that the new evidence, a declaration from agent Soto

going to his probable cause for the search “was available at

the time of the evidentiary hearing” but not presented to the

court. The district court reasoned: 

Afterthoughts or shifting ground do not

constitute an appropriate basis for
16 UNITED STATES V. LOPEZ-CRUZ

reconsideration. *** Nor is a motion to

reconsider justified on the basis of new

evidence which could have been discovered

prior to the court’s ruling. Accordingly, with

respect to the government’s exigent

circumstances argument, the court finds no

valid basis for reconsideration of its prior

order and declines to exercise its discretion in

this regard. 

Although the government contends that the district court

incorrectly relied on the law of the case doctrine, it

misunderstands the district court’s ruling.

2 The district court

cited the law of the case doctrine in another part of its

decision, but did not rely on that doctrine when declining to

exercise its discretion to consider the government’s exigent

circumstances argument. 

We review the district court’s denial of a motion to

reconsider for abuse of discretion. United States v.

Tapia-Marquez, 361 F.3d 535, 537 (9th Cir. 2004); see

United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir.

2009) (en banc). No precise “rule” governs the district

2 The district court cited the law of the case when declining to reconsider

its earlier ruling that Lopez had standing—the government’s first basis for

reconsideration—but that discussion was not relevant to the government’s

new argument of exigent circumstances, which constituted the

government’s second and entirely separate basis for reconsideration. As

explained in the text, infra, in deciding the government’s second basis for

reconsideration, the district court appropriately declined to exercise its

discretion to consider an argument not previously raised. It did not

mention or rely on law of the case. 
UNITED STATES V. LOPEZ-CRUZ 17

court’s inherent power to grant or deny a motion to reconsider

a prior ruling in a criminal proceeding. Rather, the district

court’s authority to revisit a ruling on a suppression motion

“is within its sound judicial discretion.” United States v.

Raddatz, 447 U.S. 667, 678 n.6 (1980). In United States v.

Wong, we affirmed a denial of a motion for reconsideration

of a suppression order because the new evidence “could

readily have been presented at the original hearing on the

motion to suppress” and because the defendant offered no

excuse for the failure to do so. 470 F.2d 129, 132 (9th Cir.

1972). Here, the district court exercised its discretion in a

manner consistent with these cases, declining to consider an

argument and evidence that the government failed to raise in

its opposition to the motion to suppress, in the hearing on the

motion, in its briefing before the hearing, or in its

supplemental briefing after the hearing on the motion. 

The government gives no reason for its failure to raise or

argue exigent circumstances prior to the district court’s grant

of the motion to suppress. Instead, it wishfully asserts that it

did raise the exigent circumstances exception in its initial

briefing. It says that it did so inferentially by citing to United

States v. Davis, 787 F. Supp. 2d 1165 (D. Or. 2011), which

discussed a number of exceptions to the warrant requirement,

including the exigency exception. Not only did the

government quote from a section of Davis having little to do

with the exigent circumstances exception, but nowhere in its

briefing did the government mention exigency or probable

cause.3 

3 While the government cited Davis in its opposition, the section quoted

discusses the exigent circumstances exception only briefly. The section

of Davis that fully discusses and disposes of the exigency exception was

not cited. The district court did not abuse its discretion in determining that
18 UNITED STATES V. LOPEZ-CRUZ

The district court did not abuse its discretion in denying

the motion for reconsideration. Its reason for denying the

motion to reconsider was logical, plausible, and supported by

inferences drawn from the record. Hinkson, 585 F.3d at

1262. We know of no case reversing a district court for

exercising its discretion in this manner, and the government

cites none.4

CONCLUSION

For the reasons discussed above, we AFFIRM the district

court’s order suppressing the evidence obtained by answering

Lopez’s cell phones and AFFIRM the district court’s denial

of the government’s motion for reconsideration. 

AFFIRMED.

such cursory treatment by the government was insufficient to raise the

exigency exception. This is especially the case because the government

never discussed exigency or probable cause. Further, the government

cited to Davis only to argue that Lopez gave agent Soto permission to

answer the cell phones, not to argue that a separate exception to the

warrant requirement existed.

4

In view of our holding, supra, we do not consider the district court’s

alternative holding that neither probable cause nor exigent circumstances

existed. 

The government raises another new argument in its reply brief, citing

Hudson v. Michigan, 547 U.S. 586 (2006)). This argument is waived. See

Martinez-Serrano v. I.N.S., 94 F.3d 1256, 1259 (9th Cir. 1996).