Full Opinion

Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 1 FILED United States Court of Appeals PUBLISH Tenth Circuit UNITED STATES COURT OF APPEALS October 6, 2026 Christopher M. Wolpert FOR THE TENTH CIRCUIT Clerk of Court _________________________________ UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 23-2168 SIRAJ IBN WAHHAJ, Defendant - Appellant. ––––––––––––––––––––––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 23-2170 HUJRAH WAHHAJ, Defendant - Appellant. ––––––––––––––––––––––––––––––––––– UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 23-2171 SUBHANAH WAHHAJ, Defendant - Appellant. ––––––––––––––––––––––––––––––––––– Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 2 UNITED STATES OF AMERICA, Plaintiff - Appellee, v. No. 24-2039 LUCAS MORTON, Defendant - Appellant. _________________________________ Appeal from the United States District Court for the District of New Mexico (D.C. Nos. 1:18-CR-02945-WJ-2, 1:18-CR-02945-WJ-3, 1:18-CR-02945-WJ- 4, 1:18-CR-02945-WJ-5) _________________________________ Jacob Rasch-Chabot, Assistant Federal Public Defender (Virginia L. Grady, Federal Public Defender, with him on the briefs), Denver, Colorado, for Defendant-Appellant Siraj Wahhaj. Katayoun A. Donnelly of Azizpour Donnelly LLC, Denver, Colorado, for Defendant-Appellant Hujrah Wahhaj. Gregory M. Acton of Acton Law Office, PC, Albuquerque, New Mexico, for Defendant-Appellant Subhanah Wahhaj. Andrew M. Casey of Hendrick, Casey, Hutter, PLLC, Oklahoma City, Oklahoma, for Defendant-Appellant Lucas Morton. Tiffany L. Walters, Assistant United States Attorney (Todd Blanche, Attorney General, and Ryan Ellison, First Assistant United States Attorney, with her on the brief), Albuquerque, New Mexico, for Plaintiff-Appellee. _________________________________ Before PHILLIPS, McHUGH, and MORITZ, Circuit Judges. _________________________________ PHILLIPS, Circuit Judge. _________________________________ 2 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 3 Federal law prohibits “unlawfully seiz[ing], confin[ing], inveigl[ing], decoy[ing], kidnap[ping], abduct[ing], or carr[ying] away” another person. 18 U.S.C. § 1201(a). But what must the government prove to establish that a defendant “unlawfully” did one of those things? Many issues swirl in these related appeals, but this question takes center stage. 1 Based on messages that Jany Leveille allegedly received from God, Defendant Siraj Ibn Wahhaj believed that his wife Hakima Ramzi was using black magic on their disabled, three-year-old son, Abdul Ghani. Siraj also believed that the only way to help Abdul Ghani was to perform ruqyah—a Muslim version of an exorcism—to rid him of evil spirits. So Siraj snatched Abdul Ghani away from Hakima, his primary caregiver from birth. Days later, Siraj and Abdul Ghani—along with Jany; Defendants Hujrah Wahhaj, Subhanah Wahhaj, and Lucas Morton; and the group’s children—fled from Georgia to Alabama. About ten days after that, they left for New Mexico. There, the group built a compound on a remote, empty lot in the desert. Each day, Siraj and Jany performed ruqyah on Abdul Ghani. These sessions were grueling. During the last ruqyah session, Siraj held Abdul Ghani 1 The clerk’s office consolidated appeal Nos. 23-2168, 23-2170, 23-2171, and 24-2039, which involve various issues raised by four codefendants after a joint trial. This opinion addresses all four appeals. 3 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 4 down and put his hand on Abdul Ghani’s neck. Abdul Ghani started struggling, foaming at the mouth, and choking, until he stopped breathing. Jany then prophesized that Abdul Ghani would be resurrected as Jesus Christ. He would lead them around the world to confront corrupt institutions, including federal agencies like the CIA and FBI. The group would follow with an army and kill anyone who didn’t “believe in” Abdul Ghani. To prepare, Siraj led firearms training for Lucas and Jany’s sons. Siraj and Lucas also fortified the compound, preparing to defend it against any approaching law-enforcement officers. Eventually, state officers in New Mexico secured a search warrant for the compound. As the officers approached, Siraj armed himself and told one of Jany’s sons to grab a weapon from the compound’s stash. But on Jany’s orders, Siraj stood down. Officers arrested Siraj and Lucas and removed the others from the compound. A few days later, officers located Abdul Ghani’s body in a tunnel Siraj and Lucas had dug under the compound. The government indicted Hujrah, Subhanah, and Lucas under 18 U.S.C. § 1201(a)(1) and (c) with conspiracy to commit kidnapping and with kidnapping resulting in death. It didn’t indict Siraj for those offenses because § 1201(a) exempts from prosecution parents who kidnap their own child. See id. § 1201(a), (h). 4 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 5 A jury later convicted Hujrah, Subhanah, and Lucas. On appeal, they argue that their role in seizing, confining, inveigling, decoying, kidnapping, abducting, or carrying away Abdul Ghani wasn’t unlawful under § 1201(a). Exercising jurisdiction under 28 U.S.C. § 1291, we agree. The jury instructions misstated the meaning of § 1201(a)’s “unlawfully” element. And the government didn’t introduce enough evidence to establish that Hujrah’s, Subhanah’s, or Lucas’s conduct was unlawful. So we reverse their convictions for conspiracy to commit kidnapping and kidnapping resulting in death. The government also indicted Hujrah, Subhanah, Lucas, and Siraj with conspiracy to provide material support to kill federal officers and with providing material support to do the same. And it indicted Siraj and Lucas with conspiracy to kill federal officers. The jury acquitted Hujrah and Subhannah, but it convicted Siraj and Lucas—who proceeded pro se—on all three counts. Siraj and Lucas now appeal, arguing among other things that the district court violated their Sixth Amendment rights when it excluded them from a jury-note conference. Here, too, we agree. The district court committed structural error when it excluded the pro se defendants from a jury-note conference of tactical importance. As a result, we vacate Siraj’s and Lucas’s convictions on the material-support and conspiracy-to-kill counts and remand for further proceedings. 5 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 6 BACKGROUND I. Factual Background 2 In August 2014, Hakima Ramzi and Defendant Siraj Ibn Wahhaj had a child, Abdul Ghani. At birth, Abdul Ghani suffered hypoxic ischemic encephalopathy, a brain injury resulting from a lack of oxygen or blood flow, which delayed his development. He also had a form of cerebral palsy and experienced seizures. Still, with medication, therapy, and Hakima’s care, he had started speaking and moving independently by the age of three. Hakima was Abdul Ghani’s primary caretaker, and no one else gave him his medication. While Siraj was legally married to Hakima, he entered a religious marriage with Jany Leveille. Siraj and Jany had several children together, and Jany also had two sons from a prior relationship. Siraj split his time between Hakima and Jany’s households. Eventually, he moved Hakima and Abdul Ghani into a motel room. Among other siblings, Siraj had two sisters: Defendants Hujrah Wahhaj and Subhanah Wahhaj. Hujrah had one daughter. Subhanah was married to Defendant Lucas Morton, with whom she had four children. In October 2017, Siraj and Hujrah traveled to England to learn how to perform ruqyah. One form of ruqyah involves reciting Qur’an verses while extending hands over or rocking a person. This form provides protection or a 2 We take these facts from the testimony and evidence presented at trial. 6 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 7 blessing. Another form is “[a] Muslim version of an exorcism.” JR. vol. VI at 1290. It involves reciting Qur’an verses while holding the person’s body and head. That form is more physically intrusive, is used to extract evil spirits, and requires training to perform. Siraj and Hujrah went to England to learn this more physically intrusive type of ruqyah. Around this time, Jany allegedly began receiving messages from God. She told the others that God had told her that Abdul Ghani was her son and that Hakima had used black magic to steal him from Jany’s womb. When Jany shared these messages with Siraj, Hujrah, Subhanah, and Lucas, they believed her. In late November 2017, Siraj and Hujrah confronted Hakima. She denied any involvement in black magic and asked Siraj for a divorce. Then Jany said that God told her Siraj needed to get Abdul Ghani so they could perform ruqyah on him. So on either November 30 or December 1, Siraj went to Hakima’s motel room and, while she was in the shower, announced that he was taking Abdul Ghani to the park. Because Siraj hadn’t previously taken Abdul Ghani outside, Hakima rushed from the shower, but by then Siraj and Abdul Ghani were gone. She waited, but they didn’t come back, and Siraj had left Abdul Ghani’s medication behind. When Hakima called Siraj, he said he would bring Abdul Ghani back. But he never did. He eventually blocked Hakima’s calls. 7 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 8 After Hakima told Siraj’s brother Muhammad Wahhaj what had happened, Muhammad spoke to Siraj, Jany, and Hujrah. They told Muhammad about Hakima’s using black magic, but Muhammad didn’t believe them and told them to return Abdul Ghani. The next day, Muhammad and Hakima found Siraj at Hujrah’s house. Hakima called the police and, on officers’ orders, Siraj brought Abdul Ghani outside. Despite Abdul Ghani’s protests, Siraj wouldn’t let Hakima touch Abdul Ghani and threatened her for involving the police. The officers didn’t intervene, advising Hakima that she would need to “go through the court processes” to get Abdul Ghani back. Id. at 1992–93. Soon after, Hakima called child-protective services. She also returned to Hujrah’s house with a police detective. But no one was there. Hakima contacted Siraj’s family members, who reached out to Siraj, Jany, Hujrah, and Subhanah. Some of the messages from Siraj’s family stressed that Abdul Ghani needed both his medication and Hakima’s care. Yet for the most part, the group didn’t respond. On December 18, a Georgia juvenile court issued a “pick up order” authorizing law enforcement to retrieve Abdul Ghani and place him with Hakima. 3 Around that time, Hakima filed for divorce and emergency custody. 3 About a month later, the same court issued an “adult warrant” for Siraj and a second pick-up order for Abdul Ghani. 8 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 9 But her actions were futile. By then, Siraj and Abdul Ghani were in New Mexico, living with Jany, Hujrah, Subhanah, Lucas, and their children. Earlier, after Muhammad and Hakima had first brought the police to Hujrah’s house, Siraj, Jany, Hujrah, Subhanah, and Lucas held a meeting. They decided that the group “had to leave Georgia.” Id. at 1316. So they abandoned most of their belongings and fled to Alabama, where either Lucas or Siraj owned property. After spending about ten days in Alabama, Jany said that God was directing them to New Mexico, where Lucas owned property. So early in the morning on December 13, the group left Alabama in three vehicles. But Siraj soon crashed, totaling his car. One of the officers who investigated the accident testified that he had noticed things that “concern[ed]” him and “felt off.” Id. at 1859, 1861. Siraj had many firearms in the car and tried to keep the children “isolated” from the officers. Id. at 1859–60. But lacking grounds to detain anyone, the officers let the group go, this time all inside Lucas’s box truck and an attached camper. By December 17, the group arrived in Amalia, New Mexico, and settled on an empty lot in a remote area with no water or electricity. 4 They dug a hole and pushed the trailer inside it. Subhanah, Lucas, and their children slept in the box truck; everyone else slept in the trailer. 4 Defendants thought they had settled on Lucas’s land, but they had mistakenly settled on adjacent land belonging to Jason and Tanya Badger. 9 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 10 Since taking Abdul Ghani from Hakima, Siraj had been performing physically intrusive ruqyahs on him. The ruqyahs occurred daily, lasted hours, and made Abdul Ghani scream, cry, and kick. At some point, Jany declared that Abdul Ghani was Isa (the Arabic word for Jesus) and that the ruqyah sessions would heal him. During a session on December 24, Siraj held Abdul Ghani down and put his hand on Abdul Ghani’s jugular vein, causing Abdul Ghani to scream and cry. Abdul Ghani began choking and foaming at the mouth until he stopped breathing. The group wrapped Abdul Ghani’s body in plastic and put it under Hujrah’s bed. Jany told the others that the evil spirits had left Abdul Ghani’s body, leaving him an “empty shell.” Id. at 1351. She prophesized that he would return as Isa on Easter. Then he would lead them around the world to “corrupt institutions,” including the federal government, while performing miracles and collecting followers. Id. at 1447. The men at the compound would form an army and kill anyone who didn’t “believe in” Abdul Ghani. Id. at 1359. All the adults at the compound believed this prophecy. And in early 2018, Lucas traveled to Georgia to try to recruit Muhammad. The police came, but Lucas refused to answer any questions about Abdul Ghani. Back in New Mexico, Siraj, Lucas, and the older boys began combat training with firearms to prepare to launch Abdul Ghani’s army, and also because they thought the FBI was surveilling them. They built a firing range, 10 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 11 hid weapons, and dug a tunnel “in case . . . of escape,” eventually hiding Abdul Ghani’s body there. Id. at 1377. They kept watch, hid in the trailer, and prepared for “[a] firearms fight” if anyone came to the compound. Id. at 1375, 1596. Living conditions were rough, and the group resorted to messaging people for help when they ran low on food and money. On August 3, the Taos County Sheriff’s Office secured a warrant to search the compound for Siraj and Abdul Ghani. Lucas learned that officers were approaching and warned the others. Siraj armed himself and told one of Jany’s sons to grab a weapon. But when Jany told them to stand down, they did. Officers arrested Siraj and Lucas and removed the others from the compound. They searched for Abdul Ghani but couldn’t find him, and the adults wouldn’t reveal his location. Eventually, one of the children told officers that Abdul Ghani’s body was in a tunnel. II. Procedural History A federal grand jury indicted Jany, Siraj, Hujrah, Subhanah, and Lucas on these charges: • Count 1: conspiracy to provide material support to kill federal officers in violation of 18 U.S.C. §§ 1114 and 2339A (all Defendants); • Count 2: providing material support to kill federal officers in violation of 18 U.S.C. §§ 2, 1114, and 2339A (all Defendants); • Count 3: conspiracy to kill federal officers in violation of 18 U.S.C. §§ 1114 and 1117 (Siraj, Lucas, and Jany); • Count 4: conspiracy to kidnap in violation of 18 U.S.C. § 1201(c) (all Defendants except Siraj); and • Count 5: kidnapping resulting in death in violation of 18 U.S.C. §§ 2 and 1201(a)(1) (all Defendants except Siraj). 11 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 12 The grand jury also indicted them under 18 U.S.C. § 371 with conspiracy to commit an offense against the United States—providing a firearm to Jany, who was in the country unlawfully. And it indicted Jany and the others under 18 U.S.C. §§ 2 and 922(g)(5) for Jany’s possessing firearms and ammunition and for aiding and abetting her possession. Jany pleaded guilty to conspiring to provide material support to kill federal officers and to possessing a firearm while unlawfully in the United States. The government then dismissed the §§ 371 and 922(g)(5) counts against Siraj, Lucas, Hujrah, and Subhanah, and the court renumbered the remaining counts to those listed above. They then went to trial. A jury found Siraj guilty on Counts 1, 2, and 3; Lucas guilty on Counts 1, 2, 3, 4, and 5; and Subhanah and Hujrah guilty on Counts 4 and 5 only. The district court sentenced all four to life imprisonment. Siraj, Lucas, Subhanah, and Hujrah timely appealed, challenging some of the district court’s pretrial orders and trial rulings, as well as their convictions. Together, they raise multiple issues: • Issue 1: Did the district court err by denying Defendants’ motion to dismiss the indictment? • Issue 2: Did the district court err by denying Defendants’ motion to suppress evidence? • Issue 3: Did the district court err by denying Siraj’s motion to sever? • Issue 4: Did the district court err in its jury instructions for the conspiracy-to-kill-federal-officers offense? • Issue 5: Was there sufficient evidence to convict on the conspiracy-to- kill-federal-officers count? 12 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 13 • Issue 6: Did the district court err in its jury instructions on the kidnapping offenses? • Issue 7: Was there sufficient evidence to convict on the kidnapping counts? • Issue 8: Did the district court violate Siraj’s and Lucas’s Sixth Amendment rights by excluding them from bench and jury-note conferences? • Issue 9: Did the district court violate Hujrah’s Sixth Amendment rights by denying her motion to proceed pro se? • Issue 10: Did the government commit prosecutorial misconduct during closing arguments? • Issue 11: Were Hujrah’s and Subhanah’s sentences disproportionate under the Eighth Amendment? • Issue 12: Did Siraj or Lucas show cumulative error? On Issues 1 through 5, we affirm. But on Issues 6 through 8, we reverse. As a result, we need not reach Issues 9 through 12. DISCUSSION I. Issue 1: Motion to Dismiss the Indictment Subhanah and Hujrah each argue that the district court erred by denying their joint motion to dismiss the indictment. Lucas joins Subhanah’s appeal. A. Procedural Background 1. The Indictment The indictment charged two kidnapping-related counts: Count 6 ... 35. From at least in or about October 2017, up to and including in or about August 2018, in the District of New Mexico and elsewhere, JANY LEVEILLE, HUJRAH WAHHAJ, SUBHANAH WAHHAJ, and LUCAS MORTON, and others known and unknown to the Grand Jury, knowingly did conspire, combine, confederate, 13 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 14 agree, and act interdependently with each other to unlawfully seize, confine, inveigle, decoy, kidnap, abduct, carry away, and hold [Abdul Ghani], a child who had not attained the age of eighteen (18) years, to conceal and hold him, and, in committing or in furtherance of the commission of the offense, did willfully transport [Abdul Ghani] in interstate commerce from the State of Georgia to the State of New Mexico, and did conceal and hold [Abdul Ghani], resulting in his death. In violation of 18 U.S.C. § 1201(c). Count 7 ... 37. From at least in or about October 2017, up to and including in or about August 2018, in the District of New Mexico and elsewhere, JANY LEVEILLE, HUJRAH WAHHAJ, SUBHANAH WAHHAJ, and LUCAS MORTON knowingly did and did attempt to unlawfully seize, confine, inveigle, decoy, kidnap, abduct, carry away, and hold [Abdul Ghani], a child who had not attained the age of eighteen (18) years, to conceal and hold him, and, in committing or in furtherance of the commission of the offense, did willfully transport [Abdul Ghani] in interstate commerce from the State of Georgia to the State of New Mexico, and did conceal and hold [Abdul Ghani], resulting in his death. In violation of 18 U.S.C. §§ 1201(a)(1) and 2. JR. vol. I at 182–83. 2. Motion to Dismiss Defendants 5 jointly moved to dismiss the indictment’s kidnapping and conspiracy-to-kidnap counts. Relying heavily on 18 U.S.C. § 1201’s parental 5 Throughout the Discussion section, we use “Defendants” to refer to the group of defendants appealing the relevant issue. As noted at the beginning of section I, Subhanah, Hujrah, and Lucas appeal the denial of the motion to dismiss. So “Defendants” in section I refers to only these three defendants. 14 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 15 exception, they argued that because Siraj—Abdul Ghani’s father—took and transported Abdul Ghani in interstate commerce, “there was no violation of the federal kidnapping statute.” Id. at 449; see 18 U.S.C. § 1201(a) (prohibiting unlawfully taking someone and “hold[ing that person] for ransom or reward or otherwise,” “except in the case of a minor by the parent thereof”). The government opposed the motion. It argued that the indictment charged Hujrah, Subhanah, Lucas, and Jany with conspiring with each other, not with Siraj, to kidnap Abdul Ghani. And because none of them was Abdul Ghani’s parent, the government argued that none of them was excepted from liability under the kidnapping statute. The district court denied the motion. United States v. Leveille, 671 F. Supp. 3d 1266, 1267 (D.N.M. 2023). Though the government “appear[ed] to agree” that Siraj was Abdul Ghani’s father and had “accompanied Defendants and [Abdul Ghani] from Georgia to New Mexico,” the court concluded that several material factual disputes remained unresolved. Id. at 1268–69. Those disputes included whether Siraj had voluntarily consented to kidnapping Abdul Ghani or whether Jany’s revelations had “tainted” his consent, whether Abdul Ghani had “consented to going with Defendants, whether [Jany] was married to [Siraj], and whether [Jany] could be considered a surrogate parent to [Abdul Ghani].” Id. at 1269 (citation omitted). Because “the facts Defendants rel[ied] on” to challenge the indictment “[we]re in dispute,” the court ruled that it 15 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 16 couldn’t “conclude as a matter of law that the Superseding Indictment fail[ed] to state” an offense. Id. at 1267. B. Standard of Review “We review the denial of a motion to dismiss an indictment for an abuse of discretion.” United States v. Stevens, 881 F.3d 1249, 1252 (10th Cir. 2018) (citation modified). And we “review any statutory interpretation issues involved in the ruling de novo.” United States v. Berres, 777 F.3d 1083, 1089 (10th Cir. 2015). C. Legal Framework Under Federal Rule of Criminal Procedure 12(b), a defendant can move to dismiss an indictment for failing to state an offense. Fed. R. Crim. P. 12(b)(3)(B)(v). We test an indictment “solely on the basis of the allegations made on its face,” and we accept those allegations as true. United States v. Todd, 446 F.3d 1062, 1067 (10th Cir. 2006) (citation omitted). Yet sometimes, courts may consider Rule 12(b)(3)(B)(v) motions based on “facts outside the indictment and bearing on the general issue of guilt.” United States v. Chavez, 29 F.4th 1223, 1226 (10th Cir. 2022) (citation modified). To win dismissal on such grounds, (1) “the operative facts” must be “undisputed,” (2) the government must fail to object to the district court’s considering those facts, and (3) the district court must be able to “determine from [those facts] that, as a matter of law, the government is incapable of proving its case beyond a reasonable doubt.” Id. (citation modified). “If 16 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 17 contested facts surrounding the commission of the offense would be of any assistance in determining the validity of the motion, the prosecution must continue.” Id. at 1226–27 (citation modified). D. Analysis Defendants assert that their challenges to the indictment turn on statutory interpretation, that is, “[w]hether the federal kidnapping statute exempts a particular kind of kidnapping or only exempts” parents. Subhanah Op. Br. at 19; see also Hujrah Op. Br. at 8. But because Defendants waived this challenge, we decline to reach it. The district court denied Defendants’ motion because of material factual disputes. Leveille, 671 F. Supp. 3d at 1267–69. Yet no defendant challenges that reasoning on appeal. Instead, they assert that “the facts are undisputed” and that the court should have granted their motion because the kidnapping statute’s parental exception precluded liability. Hujrah Op. Br. at 11. “Our law is clear: The first task of an appellant is to explain to us why the district court’s decision was wrong.” United States v. Martinez, 92 F.4th 1213, 1265 (10th Cir. 2024) (citation modified). But Defendants don’t do that. In fact, their opening briefs don’t address the district court’s reason for denying their motion—the existence of material factual disputes—at all. Because Defendants never explained what was wrong with the court’s reasoning, they waived their challenge to the court’s decision. See id.; Nixon v. City & Cnty. of Denv., 784 F.3d 1364, 1366 (10th Cir. 2015) (holding that counsel must 17 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 18 “explain what was wrong with the reasoning that the district court relied on in reaching its decision”). II. Issue 2: Motion to Suppress Lucas, Siraj, and Hujrah argue that the district court erred by denying their motion to suppress evidence seized during the search of the compound. A. Procedural Background 1. Factual Background When the group got near Amalia, New Mexico, it settled on an undeveloped plot of land: Lot 28. But Lucas didn’t own Lot 28—Jason and Tanya Badger did. Though Lucas had purchased Lot 29, the group mistakenly settled on Lot 28 instead. Jason visited Lot 28, found Defendants there, and told them they were on the wrong lot. Though Jason knew he could make them leave, the presence of the group’s small children left him hesitant to “throw them out in the cold.” JR. vol. VII at 179. So Jason and Lucas made a deal: if Lucas paid all closing fees and costs, they would swap lots. In the meantime, Jason would let Defendants stay on Lot 28. A few months later, in April 2018, Lucas and the Badgers entered into a written purchase agreement for Lucas to sell Lot 29’s warranty deed to the Badgers for the “purchase price” of Lot 28’s warranty deed. JR. vol. II at 1123. As discussed, the agreement called for Lucas to pay all closing costs. It set a 18 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 19 closing date for June 3, and said that if one party failed to meet its conditions, the other could terminate the agreement. Likely after entering the purchase agreement, Jason cleared sagebrush off Lot 29 and put posts at the lot’s corners. But beyond this preparatory work, he did nothing else to the lot. While the deal was still pending, Jason looked up Defendants online. He learned that Siraj and Lucas “were wanted.” See JR. vol. VII at 193. So he reported Defendants to the local sheriff’s office. Around that time, Jason also gave the sheriff’s office permission to search Lot 28 “for th[e] specific investigation on Siraj Wahhaj and Lucas Morton.” JR. vol. II at 296. But the officers waited instead, hoping to collect more evidence for a search warrant. A few days before the purchase agreement’s closing date, Lucas asked to “go around” the closing costs by filing directly with the court. Supp. JR. vol. VI at 4. Jason declined. And come June 3, Lucas neither attended the closing nor paid the costs. As a result, the purchase agreement expired, and a lawyer executed a termination agreement on June 11. After the deal expired, the Badgers tried to remove Defendants from their property. On June 8, Jason texted Lucas demanding that they leave by June 15. Jason texted again three days later, “Were you able to start moving your stuff off”? Id. at 11. Despite receiving those messages, Lucas didn’t respond, nor did Defendants leave the property. 19 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 20 So the Badgers sued to evict Lucas. Lucas received a summons and notice of a hearing. But the Badgers had filed in the wrong court, and the case was soon dismissed. Next, the Badgers contacted the New Mexico State Police and asked them to serve Defendants with a trespass notice. An officer visited the compound, but Lucas told him that the court had dismissed the eviction lawsuit and that Lucas had “inherited the land from his creator.” JR. vol. III at 203. So the officer left without serving the notice and told the Badgers to contact the sheriff’s office, which was “the lead investigating agency in the apprehension of” Siraj. Id. at 202. The Badgers did just that, asking the sheriff’s office to remove Defendants from Lot 28. But because officers were still investigating Siraj, they held off. On August 3, the sheriff’s office secured a warrant to search Lot 28 for Siraj and Abdul Ghani and to check on the other children’s welfare. During the search, officers arrested Siraj and Lucas and removed the others from the Badgers’ property. 6 From the compound, the officers seized ten firearms, large amounts of ammunition, twelve high-capacity magazines, and a bulletproof vest. The Badgers then regained possession of Lot 28. A few days later, armed with another search warrant, officers found Abdul Ghani’s body hidden in a tunnel under the compound. 6 Officers arrested Siraj based on an arrest warrant issued by the Georgia juvenile court, and they arrested Lucas for harboring a fugitive (Siraj). 20 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 21 2. Motion & Ruling Defendants moved to suppress evidence seized during the search. They argued that the search-warrant affidavit lacked probable cause because it didn’t establish a nexus between Lot 28 and the persons to be seized (Siraj and Abdul Ghani). Relatedly, they argued that the affidavit contained material misstatements and omissions, warranting a hearing under Franks v. Delaware, 438 U.S. 154 (1978). They also argued that the good-faith exception didn’t apply, that the seizure exceeded the warrant’s scope, and that the warrant was overly broad. The government opposed the motion. It argued that Defendants lacked Fourth Amendment standing to challenge the search and that their motion failed on the merits. Defendants replied that they had standing because officers had searched their home. They also emphasized that the Badgers had let them stay on the property and never obtained a court order directing them to leave. After an evidentiary hearing and additional briefing, the district court denied the motion, concluding that Defendants lacked Fourth Amendment standing. United States v. Leveille, No. 18-cr-2945, 2023 WL 3737334, at *1 (D.N.M. May 31, 2023). First, the court held that when officers searched the compound, Defendants had no property interest in Lot 28. Id. at *6. It explained that Defendants hadn’t shown that they had a lease agreement with the Badgers or that any implied tenancy survived the Badgers’ revoking Defendants’ permission to stay on the lot. Id. at *7–8. 21 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 22 Second, the court ruled that any expectation of privacy in the lot wasn’t objectively reasonable. Id. at *8. It emphasized that Defendants lacked a property interest in the land, that the Badgers had revoked Defendants’ permission to stay there, and that Defendants “were notified in several ways” that they were no longer welcome. Id. at *9. B. Standard of Review When reviewing the denial of a motion to suppress, “we view the evidence in the light most favorable to the government and accept the district court’s factual findings unless clearly erroneous.” United States v. Cates, 73 F.4th 795, 805 (10th Cir. 2023) (citation modified). A factual finding “is clearly erroneous only if it is without factual support in the record or if,” after reviewing the evidence, we are “left with a definite and firm conviction that a mistake has been made.” United States v. Craine, 995 F.3d 1139, 1157 (10th Cir. 2021) (citation omitted). We review de novo a district court’s “[u]ltimate determinations of reasonableness concerning Fourth Amendment issues and other questions of law.” Cates, 73 F.4th at 805 (citation omitted). That includes whether Defendants had an objectively reasonable expectation of privacy in Lot 28. See United States v. Guzman, 149 F.4th 1132, 1141 (10th Cir. 2025). 22 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 23 C. Legal Framework The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” U.S. Const. amend. IV. Under the exclusionary rule, the government can’t introduce evidence obtained in violation of the Fourth Amendment. Davis v. United States, 564 U.S. 229, 231–32 (2011). But “to challenge the lawfulness of a search and seizure . . . a defendant must first establish his or her standing to do so.” Guzman, 149 F.4th at 1139 (citation omitted). Fourth Amendment standing asks whether “the search at issue violated the rights of the particular defendant” invoking the exclusionary rule. Id. (citation omitted). A defendant can establish Fourth Amendment standing in two ways. First, a defendant has standing under a “traditional property-based” theory if officers “gain[ed] evidence by physically intruding on constitutionally protected areas.” Id. at 1139 n.6 (citation omitted). Second, a defendant has standing under a legitimate-expectation-of-privacy theory if he establishes “(1) a subjective expectation of privacy in the property searched, and (2) that society would recognize that expectation of privacy as objectively reasonable.” Id. at 1139 (citation omitted). “[A] person need not always have a recognized common-law property interest in the place searched to be able to claim a reasonable expectation of privacy in it.” Byrd v. United States, 584 U.S. 395, 404 (2018). Still, “property 23 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 24 concepts” can “aid[]” a court in assessing whether a defendant has a reasonable expectation of privacy. Id. Along those lines, occupying property without permission “is presumptively unjustified,” United States v. Lowe, 117 F.4th 1253, 1261 (10th Cir. 2024) (citation omitted), and “a person lacks an objectively reasonable expectation of privacy in a place in which his presence is wrongful,” Guzman, 149 F.4th at 1140 (citation modified). D. Analysis Defendants had the burden of establishing their standing to challenge the search of Lot 28. Id. at 1139. They didn’t carry that burden. Defendants argue that they had a reasonable expectation of privacy in Lot 28 for two related reasons: they were Lot 28’s tenants and the Badgers never evicted them. 7 Starting with tenancy, they assert that because the Badgers let them live on Lot 28 pending the land transfer, they had an implied tenancy agreement with the Badgers. Though the deal fell through, they say that they 7 Defendants don’t argue a “traditional property-based” theory for standing. Guzman, 149 F.4th at 1139 n.6. Instead, they rely on “property concepts” to argue that their expectation of privacy was reasonable. Lucas Op. Br. at 16 (citation omitted). 24 Appellate Case: 23-2168 Document: 173-1 Date Filed: 10/06/2026 Page: 25 stayed on the property under an implied tenancy at will. 8 And in their view, their at-will tenancy gave them a reasonable expectation of privacy in Lot 28. 9 But Defendants were more like trespassers than tenants. It’s undisputed that the Badgers owned Lot 28 and that the parties never executed the purchase agreement to swap lots. Leveille, 2023 WL 3737334, at *6. The district court also found not only that the Badgers had