FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

Plaintiff-Appellee, 

 v. 

CHANEL WILEY, 

Defendant-Appellant.

No. 22-50235 

D.C. No. 

2:20-cr-00298-

JAK-2 

OPINION

Appeal from the United States District Court

for the Central District of California

John A. Kronstadt, District Judge, Presiding

Argued and Submitted February 6, 2024

Pasadena, California

Filed May 29, 2024

Before: John B. Owens, Patrick J. Bumatay, and Salvador 

Mendoza, Jr., Circuit Judges.

Opinion by Judge Owens;

Concurrence by Judge Mendoza
2 USA V. WILEY

SUMMARY*

Criminal Law

The panel affirmed a conviction in a case in which 

Chanel Wiley contended that, during jury selection, her 

ankle monitor started beeping, thereby prejudicing her and 

warranting a new trial.

The panel assumed, without resolving, that at least one 

juror concluded that the beeping sound meant Wiley was 

wearing an ankle monitor. 

The panel held that the shackles in Deck v. Missouri, 544 

U.S. 622 (2005), and the ankle monitor in this case are two 

very different things, and ankle monitors are not entitled to 

Deck’s presumption of prejudice. The panel held that ankle 

monitors are also not inherently prejudicial under Holbrook 

v. Flynn, 475 U.S. 560 (1986). Consequently, Wiley was 

required to prove actual prejudice to sustain her claim. The 

panel held that, even if a juror knew the beeping sound came 

from the monitor, Wiley failed to prove that she was actually 

prejudiced. 

The panel addressed the defendant’s sufficiency-of-theevidence claim in a concurrently filed memorandum 

disposition. 

Concurring in the judgment, Judge Mendoza wrote that 

the record does not reflect that any juror perceived Wiley’s 

ankle monitor, which forecloses Wiley’s due process 

argument and should have ended the panel’s analysis. He 

* 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. WILEY 3 

disagreed with the majority’s decision to assume that critical 

fact in an effort to reach a due process issue. He wrote that 

although he generally agrees that an ankle monitor is not 

quite a “shackle,” he believes that a perceptible ankle 

monitor is inherently prejudicial, undermining the 

presumption of innocence and eroding the fairness of the 

fact-finding process. 

COUNSEL

A. Carley Palmer (argued), David Y. Pi and Elia Herrera, 

Assistant United States Attorneys; Bram M. Alden, 

Assistant United States Attorney, Criminal Appeals Section 

Chief; E. Martin Estrada, United States Attorney; United 

States Department of Justice, Office of the United States 

Attorney, Los Angeles, California; for Plaintiff-Appellee.

Verna J. Wefald (argued), Pasadena, California, for 

Defendant-Appellant. 
4 USA V. WILEY

OPINION

OWENS, Circuit Judge:

Chanel Wiley appeals from her conviction for 

conspiracy to distribute methamphetamine in violation of 21 

U.S.C. § 846. She contends that, during jury selection, her 

ankle monitor started beeping, thereby prejudicing her and 

warranting a new trial. We hold that, even if a juror knew

the beeping sound came from the monitor, an ankle monitor 

is not inherently prejudicial. And because Wiley has not 

shown actual prejudice, we affirm.1

I. FACTUAL AND PROCEDURAL BACKGROUND

A. The Ankle Monitor

Federal agents arrested Wiley for trafficking a small 

amount of methamphetamine, and an indictment soon 

followed. Wiley was released on bond pending trial but 

struggled with pretrial supervision and eventually was 

arrested again. Rather than forfeit the bond (which would 

have cost her surety their family home), the magistrate judge 

ordered Wiley to wear an electronic ankle monitor “to make 

sure [she] show[ed] up for court . . . .” The monitor, which 

the judge described as “the size of a cell phone,” permitted 

Wiley to avoid detention and tracked her location at all 

times. Wiley wore her monitor as prescribed, including 

when she attended court hearings and at trial.

1 Wiley also challenges the sufficiency of the evidence supporting her 

conviction. We address this claim in a concurrently filed memorandum 

disposition, in which we affirm. 
USA V. WILEY 5

B. Jury Selection and Trial

On the first day of trial, shortly before jury selection 

began, defense counsel told the district judge that the ankle 

monitor “keeps giving out audible alerts, and we’re afraid 

that would be prejudicial to the jury.” The judge 

acknowledged hearing the alert and asked if the “device 

[could] be muted.” The case agent assisting the prosecution 

offered to help, and the judge directed him to the Pretrial 

Services Office, which oversees court-ordered supervision

for defendants, including ankle monitors. 

Jury selection began without any objection, though, at 

the outset, a prospective juror indicated that “some of them” 

were having difficulty hearing the judge. About an hour into 

the process, defense counsel asked for a sidebar and told the 

judge that the “ankle monitor keeps alerting,” and that 

“every juror on this side is hearing it and seeing I have to 

fiddle with it.” The judge disagreed, explaining that,

although he also had heard the alert, he did not “think anyone 

really knows what that sound is.” The case agent then 

reported that Pretrial Services had turned off the monitor, 

which he believed would stop the beeping. But he said that

he could cut off the monitor if needed. The judge instructed 

the agent to cut off the monitor at the next break in the 

proceedings, unless it beeped again, in which case the judge

would order a recess so that it could be removed 

immediately. Again without objection, jury selection 

resumed. 

A few minutes later, a different juror said he could not 

hear the judge. The judge then told the jurors that the court 

would take a “short break” to “address this technical issue.” 

During the recess, outside the presence of the jurors, the 
6 USA V. WILEY

agent removed the monitor from Wiley and took it outside 

the courtroom. 

Jury selection resumed, a jury and alternates were 

picked, and the trial began. The jury convicted Wiley of 

conspiracy to distribute methamphetamine and acquitted her 

of distributing methamphetamine. Wiley received a below 

Guidelines sentence of sixteen months’ imprisonment. She 

filed a timely notice of appeal. 

II. DISCUSSION

A. Juror Awareness of the Ankle Monitor

As a threshold matter, we assume that at least one juror 

concluded that the beeping sound meant that Wiley was 

wearing an ankle monitor. The district judge acknowledged 

hearing the noise and did not dispute that the jurors also 

could hear it.

Indeed, during the period when Wiley was wearing the 

beeping ankle monitor, more than one juror reported 

difficulty hearing the judge. One such complaint eventually 

prompted the judge to order a recess and have the ankle 

monitor removed. Once the monitor was removed, the 

jurors’ complaints that they were having difficulty hearing 

ceased. Finally, defense counsel “fiddle[d]” with the ankle 

monitor in view of the jurors. This evidence indicates that 

the jurors heard the beeping noise and knew it was coming 

from Wiley’s ankle monitor. 

According to our colleague’s concurrence, while “ankle 

monitors are the exact type of courtroom practice that 

catch[es] jurors’ attention in a courtroom,” the jurors in this

courtroom had no knowledge of Wiley’s ankle monitor. The 

concurrence asserts that the recess merely provided a 

“convenient opportunity to have Wiley’s ankle monitor 
USA V. WILEY 7

removed” but ignores that removing the beeping ankle 

monitor was the first order of business during the recess.

The concurrence also argues that the second juror who 

reported difficulty hearing could not hear because of an issue 

with his assistive headphones, not the ankle monitor. The 

record may be unclear as to the source of the sound problems 

for that juror, but we need not resolve that factual question. 

Viewed as a whole, the record contains sufficient evidence 

that the ankle monitor was perceptible to the jury. 

B. Standard of Review and Prejudice 

We review de novo Wiley’s claim that her right to a fair 

trial was violated because members of the jury knew she was 

subject to government restraint. See United States v. 

Halliburton, 870 F.2d 557, 558 (9th Cir. 1989) (“Whether a 

defendant’s right to a fair trial is violated because members 

of the jury observe him in handcuffs is a question of law that 

is reviewed independently without deference to the district 

court’s determination of this issue.”). 

In Holbrook v. Flynn, 475 U.S. 560 (1986), the Supreme 

Court established a framework for determining the level of 

prejudice attendant to the jury’s observation of a defendant 

under government restraint or security measure. See id. at 

568–72; Hayes v. Ayers, 632 F.3d 500, 521 (9th Cir. 2011)

(discussing the Holbrook framework). First, courts must 

“look at the scene presented to jurors and determine whether 

what they saw was so inherently prejudicial as to pose an 

unacceptable threat to defendant’s right to a fair trial.” 

Hayes, 632 F.3d at 521 (quoting Holbrook, 475 U.S. at 572). 

“In assessing inherent prejudice, the question is ‘whether an 

unacceptable risk is presented of impermissible factors 

coming into play’ in the jury’s evaluation of the defendant.” 

Id. (quoting Holbrook, 475 U.S. at 570). Next, “[i]f security 
8 USA V. WILEY

measures are not found to be inherently prejudicial, a court

. . . considers whether the measures actually prejudiced 

members of the jury.” Id. at 521–22 (citing Holbrook, 475 

U.S. at 572). “[I]f the challenged practice is not found 

inherently prejudicial and if the defendant fails to show 

actual prejudice, the inquiry is over.” Id. at 522 (alteration 

in original) (quoting Holbrook, 475 U.S. at 572).

At step one of this inquiry—“assessing inherent 

prejudice”—the Court has deemed some government 

restraints presumptively prejudicial. See Halliburton, 870 

F.2d at 560 (“The Supreme Court has distinguished the 

discrete levels of prejudice that may result from a jury’s 

viewing an accused under government restraint. Compelling 

an accused to appear in prison attire before a jury presents 

‘an unacceptable risk’ of prejudice.” (quoting Estelle v. 

Williams, 425 U.S. 501, 504–09 (1976))). Wiley argues that 

her ankle monitor falls within one such category—visibly 

shackling a defendant during trial—and thus contends that 

she need not demonstrate actual prejudice to make out a due 

process violation.2 

2 The government argues that Wiley’s due process claim should be 

subject to plain error review because Wiley “advised the court of the 

audible beeping, but she did not ask the court to take any action or object 

to the court’s proposed solutions.” However, plain error review is 

inappropriate because defense counsel twice raised the issue of the 

beeping ankle monitor and told the district judge that he was concerned 

Wiley had been “prejudiced.” Consequently, Wiley preserved this 

argument. See United States v. Rodriguez, 880 F.3d 1151, 1159 (9th Cir. 

2018) (“[A]n error is preserved when the substance of the objection was 

‘patently’ clear, even if defense counsel did not use the precise terms 

used on appeal.” (quoting United States v. Ward, 747 F.3d 1184, 1189 

(9th Cir. 2014))).
USA V. WILEY 9

The leading case on visible shackling is Deck v. 

Missouri, 544 U.S. 622 (2005), in which the Court held that 

“the Fifth and Fourteenth Amendments prohibit the use of 

physical restraints visible to the jury absent a trial court 

determination, in the exercise of its discretion, that they are 

justified by a state interest specific to a particular trial.” Id.

at 629. While we are mindful of Deck (and will review it 

below), we conclude that the shackles in Deck and the ankle 

monitor in this case are two very different things, and ankle 

monitors are not entitled to Deck’s presumption of prejudice. 

Nor are ankle monitors inherently prejudicial under 

Holbrook. Consequently, Wiley must prove actual prejudice 

to sustain her claim. See United States v. Olano, 62 F.3d 

1180, 1190 (9th Cir. 1995) (holding that, where a restraint is 

not “inherently or presumptively prejudicial,” defendant

“must demonstrate actual prejudice to establish a 

constitutional violation” (citation omitted)).

C. Deck’s Rule Concerning Shackles Does Not Apply 

to Ankle Monitors. 

Deck rooted the constitutional prohibition on routine 

visible shackling in the English common law rule against 

trying a defendant in irons. 544 U.S. at 626–27 (first quoting 

4 W. Blackstone, Commentaries on the Laws of England 317 

(1769) (“[I]t is laid down in our antient books, that, though 

under an indictment of the highest nature, [the prisoner] must 

be brought to the bar without irons, or any manner of 

shackles or bonds; unless there be evident danger of an 

escape.”); and then quoting 3 E. Coke, Institutes of the Laws 

of England *34 (1644) (“If felons come in judgement to 

answer, . . . they shall be out of irons, and all manner of 

bonds, so that their pain shall not take away any manner of 

reason, nor them constrain to answer, but at their free 

will.”)). The Court determined that this rule had been 
10 USA V. WILEY

adopted by state and federal courts beginning in the 

nineteenth century and represented “a principle deeply 

embedded in the law.” Id. at 626–29. 

Deck acknowledged that the English common law rule 

may “primarily have reflected concern for the suffering . . . 

that ‘very painful’ chains could cause,” which could 

compromise a defendant’s ability to defend himself. Id. at 

630; see also Trial of Christopher Layer, 16 How. St. Tr. 94, 

99 (K.B. 1722) (statement of Mr. Hungerford) (“[T]he 

reason why [irons] are taken off in the course of proceeding 

against [a prisoner] in a court of justice, it seems to be, that 

his mind should not be disturbed by any uneasiness his body 

or limbs should he [sic] under . . . .”). The Court 

nevertheless extended the common law rule to less painful 

and less cumbersome modern shackles based on “three 

fundamental legal principles” emphasized in the Supreme 

Court’s more recent cases. Deck, 544 U.S. at 630. 

First, “[v]isible shackling undermines the presumption 

of innocence” because “[i]t suggests to the jury that the 

justice system itself sees a ‘need to separate a defendant from 

the community at large.’” Id. (quoting Holbrook, 475 U.S. 

at 569). Second, shackling diminishes the right to counsel 

because “[s]hackles can interfere with the accused’s ‘ability 

to communicate’ with his lawyer.” Id. at 631 (quoting 

Illinois v. Allen, 397 U.S. 337, 344 (1970)). Third, “the use 

of shackles at trial ‘affront[s]’ the ‘dignity and decorum of 

judicial proceedings that the judge is seeking to uphold.’” 

Id. (alteration in original) (quoting Allen, 397 U.S. at 344). 

The common law rule identified in Deck does not apply 

to ankle monitors. Blackstone described the common law 

requirement that the defendant “be brought to the bar 

without irons, or any manner of shackles or bonds.” 
USA V. WILEY 11

Blackstone, supra, at 317. The Oxford English Dictionary 

Online’s first definition of “shackle” is a “kind of fetter,” 

which it further defines as a “fetter for the ankle or wrist of 

a prisoner, usually one of a pair connected together by a 

chain, which is fastened to a ring-bolt in the floor or wall of 

the cell.” Shackle, Oxford English Dictionary Online3

(dating definition of singular form of shackle to Old English 

and plural form to 1540). The second definition of “shackle” 

is a “figurative” definition: “[a]pplied to restraint on freedom 

of action.” Id. (dating definition to approximately 1225). 

Likewise, the Oxford English Dictionary Online’s first 

definition of “bond” is a “literal” definition: “[t]hat with or 

by which a thing is bound,” which it further defines as 

“[a]nything with which one’s body or limbs are bound in 

restraint of personal liberty; a shackle, chain, fetter, 

manacle.” Bond, Oxford English Dictionary Online4 (dating 

definition to approximately 1325). It also includes a 

“figurative” definition of “bond”: a “restraining or uniting 

force,” that is, “[a]ny circumstance that trammels or takes 

away freedom of action; a force which enslaves the mind 

through the affections or passion.” Id. (dating definition to 

approximately 1325). 

An ankle monitor is not a “shackle” or “bond” in the 

literal sense. It does not physically bind an individual’s 

“body or limbs” or tie her to “the floor or wall.” An ankle 

monitor does, however, “restrain[]” an individual’s 

3

https://www.oed.com/dictionary/shackle_n1?tab=meaning_and_use#23

093646 (last visited May 15, 2024).

4

https://www.oed.com/dictionary/bond_n2?tab=meaning_and_use#1680

2519 (last visited May 15, 2024).
12 USA V. WILEY

“freedom of action” because a defendant wearing an ankle 

monitor faces nonphysical limitations on where she may go: 

She is subject to location monitoring and therefore 

disincentivized from going anywhere that would violate the 

terms of her bail conditions. 

But, even if an ankle monitor falls within the figurative 

definition of shackle or bond, extending the prohibition on 

visible shackling to ankle monitors would not accord with 

the original basis for the common law rule; Wiley has not 

alleged, nor is there any evidence to suggest, that an ankle 

monitor causes pain or interferes with a defendant’s ability 

to represent herself. Cf. Trial of Christopher Layer, 16 How. 

St. Tr. at 100 (“[T]he authority is that he is not to be in 

vinculis during his trial, but should be so far free, that he 

should have the use of his reason, and all advantages to clear 

his innocence.”); id. at 129 (statement of Mr. Hungerford) 

(“The poor man bath [sic] been so oppressed by these chains, 

that he was not able to prepare his brief.”). 

Nor do ankle monitors pose the same risks as shackling 

to Deck’s three legal principles.

i. The Presumption of Innocence

First, compared to shackling, the knowledge that a 

defendant is wearing an ankle monitor does not create the 

same perception of the defendant—and thus does not pose 

the same constitutional risk to the presumption of innocence. 

Deck’s conclusion that shackling undermines a 

defendant’s presumption of innocence rested on the 

association between shackling and dangerousness. The 

Court reasoned that shackling threatens a jury’s ability to 

make impartial decisions by creating the perception that the 

defendant is a “danger to the community.” 544 U.S. at 633. 
USA V. WILEY 13

That is why Deck also extended the prohibition on routine 

visible shackling to the penalty phase of a capital trial, where 

the presumption of innocence does not apply. Id.; cf. 

Claiborne v. Blauser, 934 F.3d 885, 897 (9th Cir. 2019) 

(extending Deck to Section 1983 trials, where the 

presumption of innocence does not apply, because “where a 

plaintiff’s dangerousness is a merits issue, visible shackling 

violates due process unless justified on a case-by-case 

basis”). 

Similar logic led us to hold that Deck’s presumptiveprejudice rule applies only to shackling in the courtroom. 

See Wharton v. Chappell, 765 F.3d 953, 967 (9th Cir. 2014) 

(“[T]he fact that Petitioner was not shackled in the 

courtroom, even though he was shackled entering and 

exiting the courthouse, suggested that Petitioner was not a 

dangerous person.”). We have further recognized that “[n]ot 

all restraints are created equal.” Walker v. Martel, 709 F.3d 

925, 942 (9th Cir. 2013). “‘[T]he greater the intensity of 

shackling . . . the greater the extent of prejudice,’ because 

elaborate physical restraints are more likely to create the 

appearance of the defendant’s dangerousness.” Larson v. 

Palmateer, 515 F.3d 1057, 1064 (9th Cir. 2008) (alterations 

in original) (quoting Spain v. Rushen, 883 F.2d 712, 722 (9th 

Cir. 1989)). 

Compared to shackling, ankle monitors are relatively 

unobtrusive and do not “create the appearance of the 

defendant’s dangerousness.” Id. Unlike shackling, which 

suggests a “proclivity for violence,” Walker, 709 F.3d at 

942, ankle monitors are primarily used to guard against a 
14 USA V. WILEY

defendant’s flight risk.

5 Indeed, that is why Wiley was 

subject to ankle monitoring in this case. 

Therefore, an ankle monitor merely indicates a 

defendant’s custody status. See Wharton, 765 F.3d at 965 

(“[J]urors know that, as a matter of routine, some defendants 

are in custody during trial and that security needs during 

transport demand restraints.”); Walker, 709 F.3d at 942 

(stating that a restraint that “only suggest[s] . . . custody 

status” is less prejudicial than more extensive restraints that, 

for example, bind a defendant’s hands); cf. Holbrook, 475 

U.S. at 567 (“Recognizing that jurors are quite aware that the 

defendant appearing before them did not arrive there by 

choice or happenstance, we . . . could never hope[] to 

eliminate from trial procedures every reminder that the State 

has chosen to marshal its resources against a defendant to 

punish him for allegedly criminal conduct.”). 

True, the awareness that a defendant is wearing an ankle 

monitor may impact the jury’s perception of that defendant’s 

innocence. As the Supreme Court has held, “the State 

5 See United States v. Tortora, 922 F.2d 880, 887 (1st Cir. 1990) 

(“[E]lectronic monitoring, while valuable in pretrial release cases 

(especially in allowing early detection of possible flight), cannot be 

expected to prevent a defendant from committing crimes or deter him 

from participating in felonious activity within the monitoring radius.”); 

Miranda v. Garland, 34 F.4th 338, 350 n.4 (4th Cir. 2022) 

(“[Petitioner’s] flight risk . . . could be mitigated by ordering [him] to 

wear a GPS ankle monitor as a condition of release.”); United States 

Courts, Federal Location Monitoring, 

https://www.uscourts.gov/services-forms/probation-and-pretrialservices/supervision/federal-location-monitoring (last visited May 15, 

2024) (“Location monitoring allows people on supervision to remain in 

the community and begin to rebuild their lives . . . GPS technology also 

can be used to verify that an individual is in an authorized location or is 

in or near an unauthorized location.”). 
USA V. WILEY 15

cannot, consistently with the Fourteenth Amendment, 

compel an accused to stand trial before a jury while dressed 

in identifiable prison clothes” because “the constant 

reminder of the accused’s condition implicit in such 

distinctive, identifiable attire may affect a juror’s judgment.” 

Estelle, 425 U.S. at 504–05, 512. But “identifiable prison 

clothes” are more prejudicial than an ankle monitor because 

prison clothes, like shackling, go to the issue of 

dangerousness. Prison clothes signal that a defendant is 

detained and thereby “suggest[] to the jury that the justice 

system itself sees a ‘need to separate a defendant from the 

community at large.’” Deck, 544 U.S. at 630 (quoting 

Holbrook, 475 U.S. at 569). By contrast, a defendant will be 

subject to an ankle monitor only if the justice system has 

determined that the defendant does not “need to [be] 

separate[d] . . . from the community at large,” id. (quoting 

Holbrook, 475 U.S. at 569), and thus can be released on bail 

subject to the electronic monitoring condition. See Samuel 

R. Wiseman, Pretrial Detention and the Right to be 

Monitored, 123 Yale L.J. 1344, 1350 (2014) (proposing a 

right to be monitored for defendants “who would otherwise 

be detained for risk of flight, not for dangerousness”). 

Our concurring colleague disagrees and believes ankle 

monitors “separate a defendant from the community at 

large” because they may be used to ensure that a defendant 

complies with a state-imposed curfew or house arrest. But a 

defendant kept at home by her ankle monitor is still allowed 

to go home. Ankle monitors may vary in the degree to which 

they restrict a defendant’s freedom of movement—but they 

still preserve some freedom of movement. And it is only 

defendants who are not detained for dangerousness that will 

be eligible for that freedom in the first place. Therefore, 

contrary to our concurring colleague’s assertion, ankle 
16 USA V. WILEY

monitors do not “brand[] the defendant as an especially 

dangerous and culpable person.” Accordingly, they do not 

threaten the presumption of innocence in the same way as 

shackling. 

ii. The Right to Counsel

Turning to the second legal principle identified in Deck, 

no evidence suggests that ankle monitors interfere with a 

defendant’s right to counsel. See 544 U.S. at 631. As noted, 

ankle monitors are not so painful or cumbersome as to 

discourage a defendant from taking the stand on her own 

behalf or to impair the full exercise of her mental faculties. 

See id. And, unlike shackles, they do not reduce a 

defendant’s “ability to communicate with . . . counsel” 

because they do not place a defendant in “a condition of total 

physical restraint.” Allen, 397 U.S. at 344. 

iii. The Dignity of Judicial Proceedings 

Finally, an ankle monitor does not “‘affront[]’ the 

‘dignity and decorum of judicial proceedings that the judge 

is seeking to uphold.’” Deck, 544 U.S. at 631 (quoting Allen, 

397 U.S. at 344). Ankle monitors are much less conspicuous 

and disruptive than the examples the Supreme Court has 

previously determined threaten the courtroom’s formal 

dignity. See id. at 631–32 (“‘hav[ing] a man plead for his 

life’ in shackles before ‘a court of justice’” (quoting Trial of 

Christopher Layer, 16 How. St. Tr. at 99 (statement of Mr. 

Hungerford))); Allen, 397 U.S. at 344 (binding and gagging 

a defendant in the presence of the jury). 

***

In sum, neither the common law rule nor the three 

fundamental legal principles underlying Deck’s holding

apply with equal force to ankle monitors. 
USA V. WILEY 17

D. Ankle Monitors Are Also Not Inherently 

Prejudicial Under Holbrook. 

Having concluded that Deck’s categorical rule does not 

apply to ankle monitors, we instead apply Holbrook’s 

analysis. Ankle monitors are not inherently prejudicial 

under this test either. 

Holbrook asks whether security measures “tend[] to 

brand [the defendant] in [the jurors’] eyes with an 

unmistakable mark of guilt” or “create ‘an unacceptable risk 

. . . of impermissible factors coming into play.’” Williams v. 

Woodford, 384 F.3d 567, 588 (9th Cir. 2004) (alterations in 

original) (quoting Holbrook, 475 U.S. at 571). We have 

previously applied this standard to conclude that the 

following forms of government restraint or courthouse

security measures were not inherently prejudicial: (1) “brief 

and inadvertent observation by jurors of a defendant in 

handcuffs outside the courtroom,” Halliburton, 870 F.2d at 

560; see also Wharton, 765 F.3d at 964 (same); Williams, 

384 F.3d at 593 (holding that “the juror’s viewing of 

Williams in handcuffs with a coat draped over his 

handcuffed hands as he went to or from the courtroom was 

not inherently or presumptively prejudicial”); Ghent v. 

Woodford, 279 F.3d 1121, 1133 (9th Cir. 2002) (holding that 

there was no inherent prejudice when “a few jurors . . . 

glimpsed Ghent in shackles in the hallway and as he was 

entering the courtroom”); Olano, 62 F.3d at 1190 (holding 

that there was no inherent prejudice “even if some jurors had 

seen Olano’s handcuffs” as he entered the courtroom);

(2) the deployment of more than the usual number of 

courtroom marshals, Williams, 384 F.3d at 587–89; and 

(3) the use of a courtroom with a “wire-reinforced glass 

partition and bars separating the spectator area from the 
18 USA V. WILEY

court area,” Morgan v. Aispuro, 946 F.2d 1462, 1463–65 

(9th Cir. 1991). 

Holbrook and its progeny establish that jurors 

understand that some security measures are required at 

courthouses, so such measures are not inherently prejudicial 

unless they impermissibly suggest guilt. An ankle monitor 

easily satisfies this test for reasons similar to why an ankle 

monitor is not a shackle. Indeed, as this case proves, an 

ankle monitor—which permitted Wiley to enter the 

courthouse through the same security as the jurors, ride the 

same elevators, and enter the courtroom through the same 

door as the jurors—makes clear that the defendant is not a 

dangerous person.

Our concurring colleague disagrees and concludes that

ankle monitors are inherently prejudicial under Holbrook

because “when a defendant wears an ankle monitor to court, 

it distinguishes her from everybody else in the courtroom.” 

But the defendant is already distinguished from everybody 

else in the courtroom because she is the defendant. 

Holbrook acknowledged that “the right to a fair trial . . . does 

not mean . . . that every practice tending to single out the 

accused from everyone else in the courtroom must be struck 

down.” 475 U.S. at 567. Therefore, a security measure 

prejudices a defendant only if it suggests something worse 

about her than that she is “associate[d] . . . with the criminal 

justice system.” 

Our concurring colleague attempts to distinguish ankle 

monitors from other security measures we have upheld, such 

as security screenings for all spectators, see Hayes, 632 F.3d 

at 521–22, and the use of a security courtroom, Morgan, 946 

F.2d at 1465, by arguing that those measures were 

“generalized” and “appl[ied] indiscriminately.” But our 
USA V. WILEY 19

colleague neglects cases where we upheld security measures 

that were not generalized. Consider the cases where jurors 

saw defendants in handcuffs outside the courtroom. See 

Halliburton, 870 F.2d at 560; Wharton, 765 F.3d at 964; 

Williams, 384 F.3d at 593; Ghent, 279 F.3d at 1133; Olano, 

62 F.3d at 1190. These cases indicate that restraints that are 

short of in-courtroom shackles—including, as we conclude, 

ankle monitors—need not be “interpreted as a sign that [the 

defendant] is particularly dangerous or culpable.” Holbrook,

475 U.S. at 569. 

The fact that the defendants in those cases wore 

handcuffs outside the courtroom, whereas Wiley wore her 

ankle monitor inside the courtroom, is of no import. The 

distinction between inside- and outside-the-courtroom 

restraints only matters in the context of handcuffs because, 

unlike ankle monitors, handcuffs are much more like literal 

shackles: They are “fetter[s] for the . . . wrist of a prisoner 

. . . of a pair connected together by a chain,” Shackle, Oxford 

English Dictionary Online, supra, that bind “one’s body or 

limbs . . . in restraint of personal liberty,” Bond, Oxford 

English Dictionary Online, supra. Thus, handcuffs are more 

likely to fall within Deck’s rule.6 By contrast, even in the 

6 See United States v. Cazares, 788 F.3d 956, 965 (9th Cir. 2015) (“In 

the presence of the jury, [the defendant] is ordinarily entitled to be 

relieved of handcuffs, or other unusual restraints, so as not to mark him 

as an obviously bad man or to suggest that the fact of his guilt is a 

foregone conclusion.” (alteration in original) (quoting Stewart v. Corbin,

850 F.2d 492, 497 (9th Cir. 1988))); Larson, 515 F.3d at 1064 (in the 

process of applying Deck to a security leg brace and determining that 

there was no prejudice, stating that “physical restraints such as . . . 

handcuffs may create a more prejudicial appearance than more 

unobtrusive forms of restraint”); United States v. Miller, 531 F.3d 340, 
20 USA V. WILEY

courtroom, ankle monitors do not pose the same risk of 

prejudice. 

An ankle monitor is also far less intrusive than having a 

phalanx of guards in the courtroom (which the court upheld 

in Holbrook) and not in the same galaxy as prison clothes or 

shackles. To fault us for “confus[ing] disruption and 

prejudice,” our concurring colleague cites Rhoden v. 

Rowland, 172 F.3d 633, 636 (9th Cir. 1999). But Rhoden is 

a pre-Deck shackling case where the defendant was subject 

to an intrusive restraint: He was forced to wear a leg brace

that caused him “physical . . . pain.” Id. at 637. Thus, 

Rhoden does not prove that we should ignore how intrusive 

a restraint is in determining whether it is inherently 

prejudicial. 

As a result, we conclude that ankle monitors are not 

inherently prejudicial under Holbrook. While there appears 

to be little case law on this issue, nothing contradicts this 

view. See White v. United States, No. 23-1451, 2023 WL 

7550935, at *4 (6th Cir. Oct. 17, 2023) (holding that defense 

counsel’s failure to request a mistrial when defendant’s 

ankle monitor went off in the jury’s presence was not 

ineffective assistance of counsel warranting 28 U.S.C. 

§ 2255 relief because “even if the jury did perceive the 

alarm, ‘brief, inadvertent observation of a defendant in 

custody does not compel reversal in the absence of an 

affirmative showing of actual prejudice’” (quoting United 

345 (6th Cir. 2008) (“Deck, and the bulk of federal cases discussing the 

use of physical restraints during trial and sentencing, involved traditional 

methods of securing the accused, such as handcuffs and shackles.” 

(emphasis added)); United States v. Barrera-Medina, 139 F. App’x 786, 

796 n.3 (9th Cir. 2005) (noting that “the term ‘shackle’ implies the use 

of handcuffs and metal chains”). 
USA V. WILEY 21

States v. Fredericks, 684 F. App’x 149, 164–65 (3d Cir. 

2017))); Higgins v. Addison, 395 F. App’x 516, 519 (10th 

Cir. 2010) (“Even assuming the ankle monitor was worn 

during trial and was visible to the jury, Higgins has not 

identified any Supreme Court holding expressly extending 

the general prohibition on restraining a criminal defendant 

with visible shackles to the factual situation presented 

here.”). 

E. Wiley Has Not Proved That Her Ankle Monitor 

Actually Prejudiced Her.

Because an ankle monitor is not inherently prejudicial, 

Wiley must show actual prejudice to prevail on her claim. 

See, e.g., Olano, 62 F.3d at 1190. She has failed to carry this 

burden. 

The district judge’s thoughtful approach to handling the 

issue of the beeping ankle monitor, to which defense counsel 

never objected, was appropriate. Shortly after the judge 

learned that the agent could remove the device, the judge 

directed the agent to do so at the next recess. See, e.g., 

Halliburton, 870 F.2d at 561–62 (where jurors briefly 

observed defendant in handcuffs outside the courtroom but 

district court “took affirmative steps to make it appear to the 

jurors that [defendant] was no longer in custody,” “district 

court’s immediate and appropriate curative measures 

eliminated the risk of actual prejudice to [defendant’s] right 

to a fair trial”). When the ankle monitor beeped again, the 

judge immediately ordered a recess and had the ankle 

monitor removed outside the presence of the jury. 

No one objected to the judge’s resolution of the issue, 

and nothing suggests that Wiley was prejudiced in any way. 

Defense counsel did not ask to voir dire the jurors. See, e.g., 

id. at 561 (“The most certain method to show that actual 
22 USA V. WILEY

prejudice resulted would have been to conduct a voir dire of 

the two jurors who saw [the defendant] in handcuffs,” and 

the “decision not to voir dire the jurors” may “constitute[] 

waiver.”); Olano, 62 F.3d at 1190 (holding that defendant 

failed to establish actual prejudice from some jurors seeing 

him in handcuffs because he “did not examine the jury” and 

“adduced no other evidence probative of prejudice”); United 

States v. Arias-Villaneuva, 998 F.2d 1491, 1505 (9th Cir. 

1993) (holding that, when defendants are “seen in custody 

by potential jurors during jury selection,” “[q]uestioning the 

jurors is the best method of determining prejudice”), 

overruled on other grounds by United States v. JimenezOrtega, 472 F.3d 1102, 1103–04 (9th Cir. 2007). 

Wiley asserts that she suffered actual prejudice “because 

the evidence of conspiracy was not overwhelming,” and 

“[s]he was acquitted of distribution.” She contends that 

“[h]ad the jury not surmised she was at least guilty of some 

crime . . . that required her to have something on her that 

beeped . . . she would not have been convicted of 

conspiracy.” This argument amounts to conjecture at most. 

It ignores that conspiracy and distribution are distinct crimes 

with distinct elements, so there is no reason to assume 

prejudice played a role in the jury finding Wiley guilty of 

conspiracy and not guilty of distribution. 

In fact, Wiley’s acquittal on one count weakens the 

argument for actual prejudice because it suggests that the 

ankle monitor did not color the jury’s perception of Wiley to 

such an extent that they were unable to consider impartially

the evidence of her guilt. See, e.g., United States v. Young, 

470 U.S. 1, 18 n.15 (1985) (“The jury acquitted respondent 

of the most serious charge he faced . . . . This reinforces our 

conclusion that the prosecutor’s remarks did not undermine 

the jury’s ability to view the evidence independently and 
USA V. WILEY 23

fairly.”); United States v. Barragan, 871 F.3d 689, 709 (9th 

Cir. 2017) (“And the jury acquitted [the defendant] of one of 

the two charges against him, indicating that they reviewed 

the evidence objectively.”). 

We have found evidence beyond mere speculative 

assertions inadequate to establish actual prejudice in a 

similar context. See, e.g., Williams, 384 F.3d at 587–88 

(concluding that alternate juror’s statement that the number 

of security marshals at defendant’s trial was greater than the 

norm did not permit a determination of actual prejudice). As 

a result, we cannot conclude that Wiley has proved actual 

prejudice here. 

On the contrary, the removal of Wiley’s ankle monitor 

during trial directly undercuts any notion that she was 

actually prejudiced. In Halliburton, the defendant argued he 

was prejudiced after some jurors, who were “aware that he 

had not been in custody at the start of trial” and “had seen 

him earlier move about without visible restraint, later 

briefly observed him in handcuffs outside the courtroom.” 

870 F.2d at 559 (emphases added). In other words, the 

defendant assumed he was prejudiced because the jurors 

believed that the court had decided it necessary to increase 

the government’s control over him during trial. 

Here, by contrast, the judge decreased the government’s 

control over Wiley during trial: He ordered her ankle 

monitor removed, eliminating any restriction on her freedom 

of movement inside or outside the courtroom. We have 

noted that, where the jurors knew that the defendant was 

subject to a government restraint, but that restraint was 

subsequently removed, the removal “might well have had a 

favorable reaction with the jury rather than an adverse one.” 

Id. at 561 (quoting Bibbs v. Wyrick, 526 F.2d 226, 228 (8th 
24 USA V. WILEY

Cir. 1975)); cf. Wharton, 765 F.3d at 965 (“[S]hackling 

during transport . . . could be perceived as increasing the 

dignity of the courtroom because a prisoner’s shackles are 

removed for open-court proceedings.”). By removing 

Wiley’s ankle monitor, the judge exhibited a degree of trust 

in Wiley that was irreconcilable with her being dangerous. 

Therefore, the district judge’s “appropriate curative 

measures eliminated the risk of actual prejudice to [Wiley’s] 

right to a fair trial.” Halliburton, 870 F.2d at 561. 

III. CONCLUSION

Because ankle monitors are neither presumptively nor 

inherently prejudicial, and Wiley has failed to prove that she 

was actually prejudiced by her beeping ankle monitor, we 

uphold her conviction. 

AFFIRMED. 

MENDOZA, Circuit Judge, concurring in the judgment: 

As appellate judges, we like questions of law. 

Unfortunately for us, we encounter many cases where the 

facts prevent us from reaching them. In those cases, we 

ordinarily cool our jets and resolve the issues on the facts, 

without announcing new and unnecessary rules of law. This 

should have been one such case. Here, Wiley asks us to 

determine whether the ankle monitor that she wore during 

her criminal trial violated her right to due process. The 

record, however, does not reflect that any juror perceived

Wiley’s ankle monitor. That glaring hole in the record 

forecloses Wiley’s due process argument and should have 

ended our analysis. 
USA V. WILEY 25

But the majority cannot help itself. Rather than 

adjudicate the case on the record before us, it assumes a 

material fact: that at least one juror was aware of Wiley’s 

ankle monitor. It proceeds to announce not one but two rules 

of constitutional law. I disagree with the majority’s decision 

to assume such a critical fact in an effort to reach a due 

process issue. But the majority makes matters worse in its 

handling of that due process issue. It concludes that an ankle 

monitor is not a “shackle” within the meaning of Deck v. 

Missouri, 544 U.S. 622 (2005), and that it is not an 

inherently prejudicial trial practice. Although I generally 

agree that an ankle monitor is not quite a “shackle,” I 

conclude that a perceptible ankle monitor is inherently 

prejudicial. After all, an ankle monitor is a distinctive and 

stigmatizing device that brands the defendant as an 

especially dangerous or culpable person. Because of that, it 

undermines the presumption of innocence and erodes the 

fairness of the fact-finding process. 

I.

The majority assumes that at least one juror was aware 

of Wiley’s beeping ankle monitor. That assumption lacks 

even a modicum of support in the record. The record shows 

that Wiley’s attorney flagged the beeping monitor before 

jury selection and indicated that he was “afraid that [it] 

would be prejudicial to the jury.” The trial judge said that 

he could hear the beeping from the bench. The beeping 

continued into jury selection. At a sidebar, Wiley’s counsel 

expressed concern that the prospective jurors could hear the 

monitor beeping and see him fiddling with it. A few minutes 

later the court took a recess and Wiley’s ankle monitor was 

removed. That is the extent of our record evidence. 
26 USA V. WILEY

This is not a case where the trial judge told the jury about 

the ankle monitor. Cf. Larson v. Palmateer, 515 F.3d 1057, 

1062 (9th Cir. 2008) (addressing a habeas petitioner’s 

argument that he was impermissibly made to wear a leg 

brace during his trial where the trial judge told the jury he 

“ha[d] been wearing a leg brace . . . . You saw it.”). It is also 

not a case where counsel commented on the monitor during 

trial. Cf. Williams v. Woodford, 347 F.3d 567, 587 (9th Cir. 

2004). We do not have testimony or declarations from jurors 

indicating that they saw the monitor either. Cf. Ghent v. 

Woodford, 279 F.3d 1121, 1132–33 (9th Cir. 2002); Rhoden 

v. Rowland, 172 F.3d 633, 636 (9th Cir. 1999) [hereinafter 

Rohden II]. Put simply, we have nothing concrete that would 

allow us to find—or even plausibly infer—that at least one 

juror heard the beeping and understood it to be coming from 

Wiley’s ankle monitor. 

If anything, the record supports a finding that the jurors 

were unaware of Wiley’s ankle monitor. When the trial 

judge and counsel discussed the ankle monitor at the sidebar 

conference during jury selection, the judge stated that he 

could hear the beeping, but indicated that he did not “think 

anyone really knows what that sound is.” That was a safe 

assumption on the trial judge’s part. As the United States 

put it at oral argument, federal courtrooms are “wired up.” 

Today, courtrooms are filled with technology that can alert, 

like computers, printers, microphones, and telephones. Even 

if a juror heard Wiley’s ankle monitor beeping, it seems 

unlikely that the juror would know it was coming from an 

ankle monitor while sitting in a courtroom filled with other 

devices capable of beeping. 

But the majority breezes past all of this. Instead, it 

implies that a prospective juror had a hard time hearing the 

trial judge because Wiley’s ankle monitor was beeping. But 
USA V. WILEY 27

that mischaracterizes the record. At the start of jury 

selection, the trial judge asked the prospective jurors if 

anyone was having a hard time hearing the court or counsel. 

One perspective juror raised his hand and indicated that he 

was having a hard time hearing “[j]ust some of them.” Once 

jury selection was underway, a second prospective juror 

indicated that he was having a hard time hearing the judge 

even though the court had provided him with assistive 

headphones. Later, that same prospective juror continued to 

have issues with the headphones and hearing. At that point, 

the court called a brief recess to “see if we can make this 

device”—i.e., the juror’s headphones—“work better.” 

During that recess, the court and counsel discussed the 

prospective juror’s headphones. The court also used that 

recess as a convenient opportunity to have Wiley’s ankle 

monitor removed. At no point did any prospective juror 

suggest that he or she was having a hard time hearing the 

court because of Wiley’s beeping ankle monitor. 

If the majority had construed the record properly, it 

would have found that there was no evidence suggesting that 

a juror was aware of the ankle monitor. Its analysis should 

have stopped there. Indeed, we have declined to reach 

similar issues in cases where there is no record of juror 

awareness. See Rhoden v. Rowland, 10 F.3d 1457, 1460 (9th 

Cir. 1993) (remanding a habeas petitioner’s shackling claim 

where the state court “never gave him an adequate 

opportunity to demonstrate whether or not the jurors saw the 

shackles”); see also id. at 1462 (O’Scannlain, J., specially 

concurring) (indicating that the “case turns on whether the 

jury saw that the petitioner was shackled,” which was a 

“material fact”). Our sister circuits have done the same in 

ankle monitor cases lacking a record of juror awareness. See 

Higgins v. Addison, 395 F. App’x 516, 519 (10th Cir. 2010) 
28 USA V. WILEY

(declining to issue a certificate of appealability because 

“nothing in the record . . . suggested the monitor was visible 

to the jury”); White v. United States, 2023 WL 7550935, at 

*4 (6th Cir. Oct. 17, 2023) (declining to issue a certificate of 

appealability because the petitioner did “not allege that the 

jury saw (or could have seen) the monitor” or “demonstrate[] 

that the jury even heard the alarm or recognized that it was 

emanating from his monitor”). 

The majority would have been wise to do the same. Our 

role in these cases is to identify courtroom practices that may 

impermissibly influence a jury’s judgment and “undermine[] 

the presumption of innocence and the related fairness of the 

factfinding process.” Deck, 544 U.S. at 630. Our entire 

focus is on preserving the jury’s impartiality and ensuring 

that a defendant’s “guilt or innocence [is] determined solely 

on the basis of the evidence introduced at trial, and not on 

grounds of official suspicion . . . or other circumstances not 

adduced as proof.” Holbrook v. Flynn, 475 U.S. 560, 567 

(1986) (quoting Taylor v. Kentucky, 436 U.S. 478, 485 

(1978)). But what the jury does not know cannot cloud its 

judgment. There is no reason to address whether a 

courtroom practice prejudiced the jury if the jury was 

unaware of that practice in the first instance. 

The facts here do not allow us to reach Wiley’s due 

process argument and that should have been the end of the 

story. After all, assuming material facts to reach 

constitutional issues “run[s] contrary to the fundamental 

principle of judicial restraint that courts should neither 

anticipate a question of constitutional law in advance of the 

necessity of deciding it nor formulate a rule of constitutional 

law broader than is required by the precise facts to which it 

is to be applied.” Wash. State Grange v. Wash. State 

Republican Party, 552 U.S. 442, 450 (2008) (cleaned up). 
USA V. WILEY 29

Indeed, “[i]f it is not necessary to decide more to dispose of 

a case, then it is necessary not to decide more.” Dobbs v. 

Jackson Women’s Health Org., 597 U.S. 215, 348 (2022) 

(Roberts, C.J., concurring in the judgment). But because the 

majority assumes a material fact and reaches the underlying 

due process issue, I am compelled to as well. 

II.

The majority tackles Wiley’s due process argument from 

two angles. First, it establishes that Deck’s rule against 

visible shackling does not extend to ankle monitors. Second, 

and separately, it asserts that an ankle monitor is not an 

inherently prejudicial trial practice under Holbrook. I 

generally agree with the majority that an ankle monitor is not 

quite a “shackle” within Deck’s meaning. But I cannot 

endorse its rule that an ankle monitor is not an inherently 

prejudicial trial practice. In my view, an ankle monitor is a 

distinctive and stigmatizing device that brands the defendant 

as an especially dangerous and culpable person. It creates 

“an unacceptable risk” that “impermissible factors” will 

“com[e] into play” and undermine the jurors’ fair-minded 

decision-making. Holbrook, 475 U.S. at 570 (quoting 

Estelle v. Williams, 425 U.S. 501, 505 (1976)). 

The majority’s inherent-prejudice analysis rests 

primarily on Holbrook. The Court in Holbrook considered 

whether the conspicuous deployment of security personnel 

during a trial is an inherently prejudicial practice. 475 U.S. 

at 569. In handling that issue, the Court situated itself 

against two of its prior decisions: Illinois v. Allen, 397 U.S. 

337 (1970), and Estelle, 425 U.S. at 501. In Allen, the Court 

observed that “the sight of shackles and gags might have a 

significant effect on the jury’s feelings about the defendant” 

and that the “technique is itself something of an affront to 
30 USA V. WILEY

the very dignity and decorum of judicial proceedings.” 397 

U.S. at 344. Similarly, in Estelle, the Court held that a 

defendant cannot be compelled to appear before the jury in 

identifiable prison attire. 425 U.S. at 512–13. With Allen

and Estelle in mind, the Court in Holbrook considered 

“whether the conspicuous, or at least noticeable, deployment 

of security personnel in a courtroom during trial is the sort 

of inherently prejudicial practice that, like shackling, should 

be permitted only where justified by an essential state 

interest specific to each trial.” 475 U.S. at 568–69. 

The Court’s analysis in Holbrook was straightforward. 

It took the shackles from Allen and the jumpsuit from Estelle

as benchmarks of prejudicial courtroom practices and 

considered whether conspicuous security personnel were 

similarly prejudicial. The Court concluded that they were 

not. 475 U.S. at 569. The Court noted that the “chief feature 

that distinguishes security officers from courtroom practices 

we might find inherently prejudicial is the wider range of 

inferences that a juror might reasonably draw from the 

officers’ presence.” Id. For example, a juror could “easily 

believe” that the troopers were in the courtroom “to guard 

against disruptions emanating from outside the courtroom or 

to ensure that tense courtroom exchanges do not erupt into 

violence,” and would not see the troopers “as a sign that [the 

defendant] is particularly dangerous or culpable.” Id. The 

Court added that “society has become inured to the presence 

of armed guards in most public places” and “they are 

doubtless taken for granted.” Id. 

But the majority invokes Holbrook only to ignore its 

reasoning. Rather than meaningfully engage in a 

comparative analysis like the Holbrook Court, the majority 

makes the conclusory assertion that ankle monitors are “not 

in the same galaxy as prison clothes or shackles.” 
USA V. WILEY 31

Hyperboles aside, I disagree with the majority; there are 

many similarities among shackles, prison attire, and ankle 

monitors. In my view, a straightforward comparative 

analysis leads to the conclusion that, like shackles and prison 

attire, perceptible ankle monitors are inherently prejudicial. 

To begin, like a shackle or a prison jumpsuit, an ankle 

monitor is a “distinctive” courtroom practice. Estelle, 425 

U.S. at 504. Most everyday people do not wear ankle 

monitors by choice, especially to court. Ankle monitors are 

neither particularly fashionable nor useful to the wearer, like 

a watch might be. Thus, when a defendant wears an ankle 

monitor to court, it distinguishes her from everybody else in 

the courtroom. She stands out because of the unique and 

conspicuous accessory strapped to her ankle, which she did 

not pick out at Claire’s. 

Further, like shackles and prison attire, ankle monitors 

are “identifiable” for their association with the criminal 

justice system. Estelle, 425 U.S. at 504. Ankle monitors are 

a quintessential “state-sponsored courtroom practice[].” See 

Carey v. Musladin, 549 U.S. 70, 76 (2006). That is, in the 

federal system, a court may require a defendant to wear an 

ankle monitor as a condition of pretrial release (as was true 

here). See 18 U.S.C. § 3142(c)(1)(B)(xiv). Everyday people 

understand that and, therefore, readily associate the device 

with the criminal justice system. 

Of course, not every courtroom practice that “single[s] 

out” a defendant in a courtroom is inherently prejudicial. 

Holbrook, 475 U.S. at 567. An ankle monitor, however, 

does more than merely single out the defendant as someone 

involved in the justice system; it marks her as a “particularly 

dangerous or culpable person.” Id. at 569. When a juror 

sees a defendant in an ankle monitor, she understands that it 
32 USA V. WILEY

is no accident. She recognizes that the court has made the 

defendant wear the ankle monitor for a reason. She may 

have some sense that federal courts impose electronic 

monitoring to promote public safety and to deter the 

defendant from absconding. See 18 U.S.C. § 3142(c)(1). 

She will know that the monitor does not reflect positively on 

the defendant, and she will infer that the defendant is 

wearing the ankle monitor because the defendant is 

“dangerous or untrustworthy.” Dyas v. Poole, 317 F.3d 934, 

937 (9th Cir. 2003) (quoting Rhoden II, 172 F.3d at 636).1 

Put simply, like a shackle or prison jumpsuit, an ankle 

monitor is not value neutral. It is not some everyday 

accessory like a Fitbit or an Apple Watch. It is a stateimposed restraint that conveys a potent and injurious 

message about the person wearing it. That message perverts 

the jurors’ impressions of the defendant. In so doing, it 

impermissibly undermines the presumption of innocence 

and the defendant’s right to a fair trial. Although an ankle 

monitor is not exactly a shackle or prison attire, it presents 

the same high and unacceptable risk of prejudice. We “must 

be alert to factors that may undermine the fairness of the fact1 Electronic monitoring is much more nuanced than most people 

understand. See generally Samuel R. Wiseman, Pretrial Detention and 

the Right to be Monitored, 123 Yale L.J. 1344 (2014); Crystal S. Yang, 

Toward an Optimal Bail System, 92 N.Y.U. L. Rev. 1399 (2017). Not 

all monitors are created equal, and they can be used to enforce vastly 

different pretrial release conditions. Some monitors, like Secure 

Continuous Remote Alcohol Monitors (“SCRAMs”), have nothing to do 

with location at all. The problem is that many ankle monitors look the 

same. See Lauren Kilgour, The Ethics of Aesthetics: Stigma, 

Information, and the Politics of Electronic Ankle Monitor Design, The 

Information Soc’y 131, 138 (2020). Thus, observers tend to lump all 

people who wear ankle monitors into one category of “dangerous 

criminal[s].” Id. at 139. 
USA V. WILEY 33

finding process,” and an ankle monitor is one such factor. 

Estelle, 425 U.S. at 503. 

But the majority is blind to that reality; it would have us 

believe that an ankle monitor is not all that prejudicial. First, 

the majority contends that an ankle monitor is not prejudicial 

because it does not suggest that the justice system sees a 

need to separate the defendant from the community. But the 

majority fundamentally misunderstands how ankle monitors 

are used as an aspect of pretrial supervision. Different 

monitors record and transmit data in dissimilar ways. See

Wiseman, 123 Yale L.J. at 1365–66. Different monitors are 

also used in conjunction with a variety of other pretrial 

release conditions. Some monitors are used to enforce 

curfews; others are not. Id. Some monitors permit a wide 

range of movement, while others are used to keep a 

defendant at home. Id. at 1367. When imposed in 

conjunction with home confinement, ankle monitors are 

used to separate a defendant from the community. See Deck, 

544 U.S. at 630 (quoting Holbrook, 475 U.S. at 569). And 

for that reason, an ankle monitor can send the message “that 

the justice system itself sees a ‘need to separate a defendant 

from the community at large.’” Id. 

The majority also downplays an ankle monitor’s 

prejudicial impact by suggesting that it is “less intrusive” 

than other prejudicial practices. But the majority confuses 

disruption and prejudice. A small thing can have a large 

prejudicial impact, just ask Hester Prynne and her scarlet 

letter or Oscar Wilde and his green carnation. Our precedent 

recognizes that. We have held that relatively discrete 

restraints are prejudicial, while foreboding courtroom 

practices are not. Compare Rhoden II, 172 F.3d at 637 

(finding prejudice where the defendant wore leg chains at 

trial) with Morgan v. Aispuro, 946 F.3d 1462, 1465 (9th Cir. 
34 USA V. WILEY

1991) (determining that a “security courtroom” with a “wirereinforced glass partition and bars separating the spectator 

area from the court area” was not inherently prejudicial). 

These cases highlight that relatively unobtrusive courtroom 

practices can nevertheless have an outsized impact on jurors. 

And the same holds true when it comes to ankle monitors. 

Although ankle monitors are relatively small, they can have 

a disproportionate impact on the jury and create “an 

unacceptable risk” that “impermissible factors” will “com[e] 

into play” and cloud the jurors’ judgment. Holbrook, 475 

U.S. at 570.

Because ankle monitors are a distinctive and identifiable 

courtroom practice, there is not a “wide[] range of inferences 

that a juror might reasonably draw from” perceiving one. 

Holbrook, 475 U.S. at 569. When a juror is aware that a 

defendant is wearing an ankle monitor, the message is clear: 

the justice system sees some need to surveil and restrain the 

defendant because of the threat that she poses. There is no 

alternate, non-prejudicial inference that the juror could 

reasonably draw from seeing the defendant in an ankle 

monitor. And certainly no juror would believe that a 

defendant is wearing an ankle monitor on account of good 

behavior or character.

In this regard, ankle monitors are quite unlike the 

generalized courtroom security measures that we have 

encountered in other cases. We have routinely held that 

generalized courtroom security measures are not inherently 

prejudicial. See Hayes v. Ayers, 632 F.3d 500, 522 (9th Cir. 

2011) (requiring spectators to go through a security 

screening before entering the courtroom is not inherently 

prejudicial); Morgan, 946 F.3d at 1465 (holding trial in a 

“security courtroom” is not inherently prejudicial). Our 

decisions in those cases make good sense. Generalized 
USA V. WILEY 35

security measures create a lower risk of prejudice because 

they do not impact the defendant any “more than any of the 

other participants in the trial.” Morgan, 946 F.2d at 1465. 

Because they apply indiscriminately, the jury cannot infer 

that the defendant “specifically was the reason for the 

security measures.” Id. But none of that is true when it 

comes to ankle monitors. An ankle monitor does not apply 

indiscriminately; it applies to one person in the courtroom: 

the defendant. Because the device is literally strapped to the 

defendant, the jury cannot mistake that the defendant 

“specifically was the reason” for the monitor’s presence in 

the courtroom. Id. 

Additionally, like shackles or prison jumpsuits, the 

public is not “inured” to ankle monitors, especially in a 

courtroom. Holbrook, 475 U.S. at 569. Electronic 

monitoring has become an increasingly common aspect of 

pretrial supervision, both in the state and federal systems. 

See Yang, 92 N.Y.U. L. Rev. at 1477. But that does not 

mean that everyday people are accustomed to ankle monitors 

or take them “for granted” as they would a security guard in 

a courtroom. Holbrook, 475 U.S. at 569. To the contrary, 

ankle monitors are things of popular intrigue. They are 

regularly depicted in movies and on television shows.2 They 

go viral on social media.3 They make the news, especially 

2 See Disturbia (Paramount Pictures 2007) (depicting a young man on 

home confinement with an ankle monitor); White Collar (Fox Production 

Studios 2009) (following a convicted con artist who obtains early release 

from prison to assist law enforcement in investigating suspected white 

collar criminals, but is made to wear an ankle monitor). 

3 See Tik Tok, @legbootlegit, 

https://www.tiktok.com/@legbootlegit/video/7262087314749312299 
36 USA V. WILEY

when attached to people in the public eye.4 Unlike the court 

security officers at issue in Holbrook, ankle monitors are the 

exact type of courtroom practice that catch jurors’ attention 

in a courtroom. 

For all these reasons, ankle monitors, like shackles and 

prison attire, “tend[] to brand” the defendant and create a 

great risk of prejudice. Holbrook, 475 U.S. at 571. That risk 

of prejudice is especially troubling because it is not justified 

by any “essential state policy.” Estelle, 425 U.S. at 505. We 

impose pretrial electronic monitoring to promote public 

safety and ensure that defendants show up to court. See 18 

U.S.C. § 3142(c)(1). Those are certainly legitimate interests 

while the defendant is out in the community. But those 

interests largely fall away when the defendant is in the 

courtroom. In that moment, the state is certain that the 

defendant will come to court—indeed, she is sitting right 

there—and can be confident that she is not harming the 

public. Compelling a defendant to wear an ankle monitor 

before the jury is, at best, “convenient” for the government. 

Estelle, 425 U.S. at 505. It prevents the government from 

needing to remove the monitor before trial and might assist 

in locating the defendant if she absconds mid-trial. But those 

limited conveniences “provide[] no justification for the 

practice” in the courtroom. Id.

(last visited May 17, 2024) (video of a spoof advertisement for a 

children’s toy, “My First Ankle Monitor,” with over 3 million likes).

4 See Tom Hays et al., Weinstein Accused of Misusing Ankle Monitor; 

$5M Bail Sought, Associated Press, https://apnews.com/article/us-newsap-top-news-harvey-weinstein-ca-state-wire-entertainment08be9499da92e918c21ed84479b75acb (last visited May 17, 2024). 
USA V. WILEY 37

* * *

This case never should have been resolved this way. The 

record does not allow us to reach Wiley’s due process 

argument, and our analysis should have ended there. But the 

majority boldly strides ahead to hold that an ankle monitor 

is not an inherently prejudicial courtroom practice. The 

majority’s attempts to downplay an ankle monitor’s 

deleterious impact are understandable. As judges, we are 

accustomed to seeing defendants clad in shackles and prison 

attire, so we do not blink at ankle monitors. But our 

perspective as jurists is not what matters here. Our task is to 

“look at the scene presented to jurors.” Holbrook, 475 U.S. 

at 572 (emphasis added). We ask whether “reason, principle, 

and common human experience” suggest that those 

everyday jurors will become prejudiced against the 

defendant. See Estelle, 425 U.S. at 504. The majority fails 

to understand that ordinary people are not accustomed to 

ankle monitors or the harmful messages that they convey. 

When a juror perceives an ankle monitor, it stands out and 

readily brands the defendant as someone dangerous and 

untrustworthy. For that reason, an ankle monitor “pose[s] an 

unacceptable threat to [the] defendant’s right to a fair trial.” 

Holbrook, 475 U.S. at 572. I respectfully disagree with the 

majority’s suggestions otherwise.