49 Fed. R. Evid. Serv. 740, 98 Cal. Daily Op. Serv. 4048, 98 Daily Journal D.A.R. 5612 United States of America v. Richard Klimavicius-Viloria, United States of America v. Oscar Caicedo-Pineda, United States of America v. Edilberto Ferraro-Montesdeoca, United States of America v. Freddy Queney Rivas-Lerma, United States of America v. Felix Otero-Estupinan, United States of America v. Ruben Dario Palma-Robayo, United States of America v. Leoncio Alberto Morcillo-Vidal, United States of America v. Daniel Payan-Solis, United States of America v. Arnulfo Rojas-Rentria, United States of America v. Dagoberto Lerma-Lerma

On July 28, 1995, the United States Coast Guard seized the vessel Nataly I and the twelve tons of cocaine it was carrying. The Coast Guard arrested the entire crew: Richard Klimavicius-Viloria ("Klimavicius"), master of the ship; Dagoberto Lerma-Lerma, chief engineer; and Oscar Caicedo-Pineda, Edilberto Ferraro-Montesdeoca, Freddy Queney Rivas-Lerma, Felix Otero-Estupinan, Ruben Palma-Robayo, Leoncio Morcillo-Vidal, Daniel Payan-Solis, and Arnulfo Rojas Rentria, collectively the "Crew Members." After a jury trial, Klimavicius, Lerma-Lerma, and all Crew Members were found guilty of possession of cocaine with intent to distribute on board a vessel, 46 U.S.C. app. §§ 1903(a), (c)(1)(C) and (f) (1994). Klimavicius and Lerma-Lerma were also found guilty of conspiracy to possess cocaine with intent to distribute on board a vessel, 46 U.S.C. app. § 1903(j) (1994).

Klimavicius, Lerma-Lerma and the Crew Members appeal. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm.

The Nataly I, a Panamanian-registered vessel, was equipped as a long-line fishing vessel. A long line is a buoyed line five to fifty miles long which is strung with shorter lines holding baited hooks. This type of fishing is used primarily to catch large fish, such as tuna.

On June 9, 1995, when Klimavicius arrived to captain the Nataly I, it was being repaired in a secure, closed dock in Panama. The rest of the crew were already on board. With the exception of one three-day trip which Klimavicius made to Cali, Columbia, he and the entire crew stayed on board the Nataly I without interruption. On July 18, 1995, Klimavicius maneuvered the ship through the Panama Canal and out into the ocean.

On the morning of July 25, 1995, the U.S.S. Cape St. George, a United States Navy vessel, encountered the Nataly I in international waters near the Galapagos Islands approximately 780 miles off the coast of Peru. The sea near the Galapagos Islands is one of the most prolific fishing areas in the world.

Embarked upon the Cape St. George was a U.S. Coast Guard Law Enforcement Detachment. Coast Guard Officer Jose Vizcaino, the boarding officer, hailed the Nataly I via radio, and asked Klimavicius several pre-boarding questions. Klimavicius willingly answered the questions, explaining that the Nataly I was a Panamanian registered vessel, that he and the crew were all Colombians, that the purpose of the voyage was to fish, and that they might be at sea for three months. Klimavicius also gave the Coast Guard permission to board.

Once aboard, the Coast Guard boarding team did a preliminary search of the vessel. A test, called the Sherwood spray test, detected the presence of cocaine on one of the access covers in the forward berthing area, where the crew slept. Klimavicius then gave permission to search the three forward tanks. The team also searched a number of other tanks that day, but found no cocaine.

During the inspection, the team noticed things that were inconsistent with a fishing voyage. First, there were no fish on board. Klimavicius explained this by stating that the ship had just arrived at the fishing grounds. Second, there were only fifty pounds of squid bait in the fish house, much less than normal for long-line fishing. Third, there was only a small amount of ice in the fish house and the ice was dirty. Fishing vessels use clean ice to preserve the fish. Although there was an ice maker, it was not making enough ice to properly supply the fish house. Finally, the inspection team found an industrial scale, which was of a type not used to weigh fish, because it was not a hanging scale and because a large tuna or swordfish would weigh more than the maximum weight on the scale.

The inspection team then left the Nataly I for the night. The Coast Guard contacted the Government of Panama to obtain permission to search the vessel, and if cocaine were found, to arrest the crew and seize the ship. Panama gave permission for the search, but deferred on the question of whether to enforce United States or Panamanian law. During the night, the Nataly I's crew fished for squid bait and caught 400-500 pounds, an amount of bait which would supply one day's long-line fishing.

The next morning the Coast Guard team reboarded the Nataly I. When the search resumed, Klimavicius drew a map of the vessel's storage tanks. This revealed that tanks six and seven (where the cocaine was eventually found) were located mid-ship. The access covers for these tanks were concealed by wood planks and several fifty-five gallon drums. Coast Guard Officer David Adcock had previously thought this area suspicious, because it was particularly clean, with soap residue on it. Adcock now inspected the area more closely and noticed that the bolts securing the access covers to these two tanks were shiny and appeared new, indicating that the access plates had been recently removed. In order to inspect the access covers, the planks directly over them had to be removed, as well as several fifty-five gallon drums. Adcock tried to enlist the crew's help in moving the drums. Because he spoke no Spanish, Adcock pointed to the drums and pointed to the place where he wanted them moved. The crew did not respond and looked away from him. At that point, Chief Engineer Lerma-Lerma became very nervous; he wrung his hands and looked like he was about to cry. Crew members Montesdeoca and Morcillo made eye contact, then Montesdeoca shook his head and turned while Morcillo turned around and looked over the side of the boat. The rest of the crew would not look at Adcock.

After the access covers were opened, the inspection team found dirty fuel in tank six. Vizcaino asked Klimavicius for permission to transfer the dirty fuel in tank six to the forward tanks, which were empty. Klimavicius objected, claiming that the forward tanks contained clean fuel, which would be contaminated. In fact, those tanks already contained a residue of dirty fuel. Vizcaino ordered the fuel transferred.

When requested, Klimavicius produced a portable pump to transfer the fuel. Although Klimavicius claimed there was no other pump on board, there was another pump, which worked after a minor repair.

Four Navy engineers were then brought on board to ensure that the fluids were safely transferred among the fifteen tanks. No cocaine was found that day. Because the Government of Panama had given its consent, the Coast Guard took over the Nataly I and left a contingent on board during the night.

The cocaine was found the next day. After all the fuel was transferred out of tank six, Coast Guard personnel searched the tank and found a sealed baffle, or partition, and an access plate right behind the baffle wall. When Vizcaino asked Klimavicius about the access plate, Klimavicius said it probably connected tank six to tank eight, because that area was originally one large tank. Vizcaino then asked Lerma-Lerma about the baffle in the tank. Lerma-Lerma appeared to be frightened and responded that "he didn't know, to please stop asking him any more questions about the tanks themselves." Lerma-Lerma was the chief engineer. He was responsible for maintenance of the tanks and should have known their configuration.

After the access plate was removed, Vizcaino discovered that the compartment was full of white bales of cocaine. At approximately one o'clock in the afternoon, Vizcaino reported his discovery to Officer David Schoenfeld, the officer in charge of the Coast Guard Law Enforcement Detachment. For safety reasons, Vizcaino decided to divert the crew. He told Lerma-Lerma that he was having problems locating two tanks at the rear of the vessel. Lerma-Lerma's demeanor changed immediately; he became "calm and very helpful." Vizcaino then went to Klimavicius who now appeared nervous; he stared into space and would not make eye contact. When Vizcaino again asked for help with the two rear tanks, Klimavicius relaxed and offered a solution to the problem.

The entire Coast Guard team then boarded the Nataly I to help detain the crew. After the fuel was drained from tank seven, the inspection team discovered a similar compartment in that tank, also filled with cocaine.

The crew was brought on board the Cape St. George. The Government of Panama was notified and on July 28, it gave permission to seize the Nataly I and the contraband, and arrest the crew under United States law. Vizcaino arrested the crew. The Cape St. George and another Navy ship then towed the Nataly I back to San Diego. The trip took about three weeks, due to a tropical storm and a hurricane.

After the Nataly I docked in San Diego, United States Customs inspectors removed and weighed the cocaine. It was then sent to the Drug Enforcement Administration ("DEA") for analysis. The DEA also tested the crew's clothing, but found no trace of cocaine.

Klimavicius, Lerma-Lerma, and all Crew Members were convicted of possession of cocaine with intent to distribute on board a vessel. Klimavicius and Lerma-Lerma were also convicted of conspiracy to possess cocaine with intent to distribute on board a vessel. Klimavicius, Lerma-Lerma and the Crew Members appeal their convictions for possession with intent to distribute. Klimavicius and Lerma-Lerma also appeal their conspiracy convictions, and Lerma-Lerma appeals his sentence.

The convictions which are the subject of this appeal stem from violations of the Maritime Drug Law Enforcement Act ("MDLEA"). Under this Act, "[i]t is unlawful for any person on board ... a vessel subject to the jurisdiction of the United States ... to knowingly or intentionally ... possess with intent to manufacture or distribute, a controlled substance." 46 U.S.C. app. § 1903(a) (1994).

Before a United States court may entertain a prosecution for violation of the Act, "there must be a sufficient nexus between the defendant and the United States so that such application would not be arbitrary or fundamentally unfair." United States v. Davis, 905 F.2d 245, 248-49 (9th Cir.1990) (citing United States v. Peterson, 812 F.2d 486, 493 (9th Cir.1987)). After a three-day hearing, the district court, not the jury, held that there was sufficient nexus for the United States to maintain jurisdiction. The appellants argue (1) the jury should have decided the nexus issue and (2) the government did not establish a sufficient nexus.

A. Who Should Decide Nexus?

In a criminal jury trial, the jury must determine every element of the offense. United States v. Gaudin, 515 U.S. 506, 510, 522-23, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). At the time of the appellants' trial, jurisdiction was an element of the offenses of which they were convicted.1

Under 46 U.S.C. app. § 1903(a) (1994), the vessel involved in the alleged criminal conduct must be "subject to the jurisdiction of the United States." The appellants argue that to establish jurisdiction the government must prove nexus--that is, "a connection between the criminal conduct and the United States sufficient to satisfy the United States' pursuit of its interests." United States v. Caicedo, 47 F.3d 370, 372 (9th Cir.1995). Because jurisdiction is dependent upon nexus, the appellants argue, and jurisdiction was an element of the offenses at the relevant time of this case, the jury should have decided the nexus issue.

The premise of this argument is that nexus is an element of the offense. To determine whether it is, we first look to the plain meaning of the applicable statute. United States v. Wells, 519 U.S. 482, 117 S.Ct. 921, 927, 137 L.Ed.2d 107 (1997).

The statute does not support the argument's premise. The MDLEA contains no nexus requirement. The nexus requirement is a judicial gloss applied to ensure that a defendant is not improperly haled before a court for trial. We have explained the need for the requirement this way: "A defendant [on a foreign flag ship] would have a legitimate expectation that because he has submitted himself to the laws of one nation [the foreign flag nation], other nations will not be entitled to exercise jurisdiction without some nexus." Caicedo, 47 F.3d at 372.

The nexus requirement serves the same purpose as the "minimum contacts" test in personal jurisdiction. It ensures that a United States court will assert jurisdiction only over a defendant who "should reasonably anticipate being haled into court" in this country. World-Wide Volkswagen Corp. v. Woodson, 444 U.S. 286, 297, 100 S.Ct. 559, 62 L.Ed.2d 490 (1980). Just as the question of personal jurisdiction should be decided by the court prior to trial, so should the question of nexus, even though it is part of the jurisdictional requirement.

Ford v. United States, 273 U.S. 593, 47 S.Ct. 531, 71 L.Ed. 793 (1927), is consistent with this view. In Ford, the Court considered whether a ship carrying liquor during prohibition had been seized within an area prescribed by a treaty between the United States and Great Britain. The Court held that the issue was one of jurisdiction, which should go to the court prior to trial because "[it] did not affect the question of the defendants' guilt or innocence. It only affected the right of the court to hold their persons for trial." Id. at 606, 47 S.Ct. 531.

The appellants argue that this court in United States v. Medjuck, 48 F.3d 1107, 1110 (9th Cir.1995), held that the nexus requirement is an element of the offense. This argument misconstrues Medjuck. In Medjuck we held that the government has the burden of proving nexus and that a defendant should have an opportunity to rebut the government's proof. Id. at 1111. We did not require that the jury decide nexus. Our use of terms may have created confusion, however, because we labelled the jurisdiction requirement "statutory" jurisdiction and the nexus requirement "constitutional" jurisdiction. Id. at 1110. In an unrelated case, this led us to incorrectly conflate these two requirements and opine, in dicta, that the jury must determine nexus. United States v. Amparo, 68 F.3d 1222, 1226 (9th Cir.1995) (holding that possession of a sawed off shotgun is a crime of violence), cert. denied, 516 U.S. 1164, 116 S.Ct. 1055, 134 L.Ed.2d 200 (1996). In fact, in all prior cases, the district court has decided the nexus issue. See, e.g., United States v. Khan, 35 F.3d 426, 430 (9th Cir.1994) (conditional guilty plea); Davis, 905 F.2d at 249 (motion to dismiss).

We conclude the district court properly considered the nexus issue prior to trial. Nexus is part of the jurisdictional inquiry, but it is an inquiry for the court, not the jury.

B. Was There A Sufficient Nexus?

There is sufficient nexus "where an attempted transaction is aimed at causing criminal acts within the United States." Davis, 905 F.2d at 249 (quoting Peterson, 812 F.2d at 493). More specifically, there is sufficient nexus where "the plan for shipping the drugs was likely to have effects in the United States." Khan, 35 F.3d at 429.

We have found nexus when narcotics were destined for the United States. We have based such a decision upon the location of the vessel when it was seized, Davis, 905 F.2d at 249, and upon testimony about the narcotics' destination, Khan, 35 F.3d at 429-30; United States v. Aikins, 946 F.2d 608, 613-14 (9th Cir.1990). The nature of the United States narcotics market is also relevant in determining nexus. United States v. Wright-Barker, 784 F.2d 161, 169-70 (3rd Cir.1986) (deciding that a ship seized 200 miles from the New Jersey coast was headed for the United States rather than Canada).

In the present case, the district court found that the cocaine seized on board the Nataly I was destined for the United States. The court based this determination upon evidence that (1) markings on the cocaine matched the markings on cocaine that had been seized in the United States, (2) the United States was the most likely destination for such a large load of cocaine, and (3) the location of the ship and the kind of navigational maps on board were consistent with the cocaine being bound for the United States.

We agree with the district court's assessment of the evidence and its holding. The most persuasive evidence concerns the distinctive markings imprinted onto the bricks of cocaine and printed on the cocaine packages. These same markings are contained within a database the DEA established in 1983 to track cocaine. Thirty to forty countries have contributed to this database.

The information in the database showed that the markings on the cocaine seized aboard the Nataly I were identical to markings on cocaine that had been seized predominately in the United States. Five of the markings had been found only on cocaine seized in the United States. The five other markings that the DEA analyzed had been found predominately on cocaine seized in the United States and in countries involved in the shipment of the cocaine, such as Columbia, Panama and Mexico. In each case, there was only one country other than the United States that could have been the destination for the cocaine. Additionally, three sets of the markings have been found together in seizures in the United States.

The appellants point out that the database is not complete, because there is no data on cocaine that is not seized, on seizures that are not reported, or on cocaine which has no markings. However, the cumulative weight of the data lends strong support to the district court's conclusion that the drugs were destined for the United States.

In addition, twelve tons of cocaine were seized. A DEA analyst testified that the United States is the only country that could absorb such a large shipment. The United States is the largest consumer of cocaine, consuming approximately two-thirds of the world's supply. Even more importantly, the distribution of such a large quantity of cocaine requires an extensive, well-established smuggling system such as is in place in the United States.

The appellants argue that the drugs could have been bound for Russia or shipped through Russia to Europe, where cocaine prices are higher than the United States. As the DEA analyst explained, however, this scenario is unlikely. While cocaine consumption in Europe and Russia is on the rise, neither approaches the level of consumption in the United States. Further, the infrastructure in those places is not sophisticated enough to handle such a large shipment.

Also of significance is the fact that the Nataly I contained sixty navigational maps, which covered the South American coasts, the eastern Pacific, the southeast Caribbean, Central America, portions of the United States, and Sicily. The fact that there were no navigational maps covering Asia, the western Pacific or the mid-Atlantic supports the conclusion that the cocaine was not destined for Russia or Europe.

Finally, the Nataly I's location and its condition are consistent with its use as a mother ship in a scheme to transport cocaine into the United States. The Colombian cartel uses mother ships to transport cocaine out to sea where the cocaine is then loaded onto smaller vessels which land the cocaine, usually into Mexico. The cocaine is then smuggled into the United States. With twelve tons of cocaine on board, the Nataly I was obviously a mother ship. Its location off the Galapagos Islands, when it was ill-equipped for fishing, together with the other circumstances mentioned above, support the district court's conclusion that the cocaine was destined for the United States. This provides a sufficient nexus between the defendants' activities and the United States to satisfy the nexus requirement.

The appellants moved for dismissal of the indictment or, in the alternative, for suppression of the seized cocaine, on the ground that the Navy's participation in the seizure of the Nataly I violated the Posse Comitatus Act and 10 U.S.C. § 375.

The Posse Comitatus Act establishes criminal penalties for use of the Army or Air Force in law enforcement, "unless expressly authorized by the Constitution or Act of Congress." 18 U.S.C. § 1385 (1994). While the Posse Comitatus Act does not itself apply to the Navy, United States v. Roberts, 779 F.2d 565, 567 (9th Cir.1986), Congress has extended the substance of the Act to the Navy by a separate statute, 10 U.S.C. §§ 371-382 (1994 & Supp.1996). This statute provides that no military personnel may directly participate in a civilian "search, seizure, arrest, or other similar activity" unless expressly authorized by law. § 375. This same statute provides that Coast Guard personnel placed on certain Navy ships to seize and arrest vessels smuggling narcotics must be placed there by the Department of Defense. § 379. Additionally, the Department of Defense may provide military personnel to operate equipment to detect, monitor and control sea traffic; to intercept vessels; and to operate equipment to facilitate communication under the MDLEA. § 374(b)(2).

In this case, there was a seven-member Coast Guard Law Enforcement Detachment aboard the Navy ship, the Cape St. George. This Coast Guard team boarded the Nataly I and searched the vessel. On the second day of the search, four Navy engineers helped transfer fluids among the fifteen tanks. This had to be done carefully to ensure the stability of the Nataly I. The Navy also transported equipment to assist with the search and showed the Coast Guard personnel how to use the equipment. After the cocaine was found, Navy personnel helped transfer the appellants to the Cape St. George, where Coast Guard personnel arrested, searched and interrogated them. Navy personnel then helped supervise the appellants, gave them medical attention and towed the Nataly I to the United States. Navy personnel did not search the Nataly I nor did they arrest or interrogate the appellants.

The Navy's assistance in this case is similar to its assistance in United States v. Khan, 35 F.3d 426, 431-32 (9th Cir.1994). There, the Navy did not violate the applicable Posse Comitatus statutes even though its personnel boarded the ship. Its naval personnel merely provided backup security and logistical support under the Coast Guard's command and did not participate in the search of the ship or the arrest or interrogation of the crew. Id. at 432. In both Khan and this case, the Navy supplied equipment, logistical support and backup security. In addition, although the Navy engineers in the present case moved the fluids among the fifteen tanks, they did so because they had the expertise to perform that operation without endangering the stability of the vessel.

We conclude the Navy's assistance was properly indirect and did not violate 10 U.S.C. §§ 371-382 (1994 & Supp.1996).

The appellants argue that the district court should not have allowed the government to introduce expert testimony by a DEA intelligence research specialist pertaining to maritime drug smuggling. They contend this evidence should have been excluded as impermissible drug courier profile evidence. We disagree.

A drug courier profile is "a somewhat informal compilation of characteristics believed to be typical of persons unlawfully carrying narcotics." Reid v. Georgia, 448 U.S. 438, 440, 100 S.Ct. 2752, 65 L.Ed.2d 890 (1980). Drug courier profile evidence is extremely prejudicial and may be used only in limited circumstances, such as "to establish modus operandi ... in exceptional, complex cases." United States v. Lim, 984 F.2d 331, 335 (9th Cir.1993). This is such a case. The DEA intelligence research specialist's testimony "was necessary to inform the jury of the techniques employed by drug dealers in their illegal trade, techniques with which an ordinary juror would most probably be unfamiliar." United States v. Figueroa-Lopez, 125 F.3d 1241, 1245 (9th Cir.1997).

The specialist testified about fifteen different smuggling routes over air, land and sea, and gave a detailed explanation of the complexity of maritime smuggling. She related how mother ships, which may be disguised as fishing vessels, take circuitous routes to their destinations to avoid detection. She also explained that drug trafficking organizations are compartmentalized, in that different groups are responsible for different functions, so that each group has limited knowledge of the operation.

We conclude the district court did not abuse its discretion in admitting the DEA specialist's testimony describing maritime drug smuggling. The evidence was admissible to establish modus operandi.

The appellants argue that the district court erred by admitting evidence of the Sherwood spray test because the court did so without a hearing, which they contend is required by Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993). They also contend the test results focused on evidence of other bad acts.

The Sherwood Spray Test is used to detect cocaine. Coast Guard Officers Schoenfeld and Vizcaino each described the test and its use aboard the Nataly I. When asked if any drugs were found on the first day of the search, Schoenfeld and Vizcaino testified that the Sherwood test results were positive for cocaine but that no cocaine was found. On cross-examination, the Crew Members established that the officers were not familiar with the test's reliability and were not trained in its use. The cross-examination also brought out that the test merely found trace amounts of cocaine and that no cocaine was actually found in the area which tested positive.

The test was offered to help explain the actions that the Coast Guard took when it boarded the Nataly I. No Daubert hearing was required because the test was not offered as scientific evidence to prove the presence of cocaine. That was not necessary. Twelve tons of cocaine were found on the vessel.

Nor was the evidence excludable as evidence of other bad acts. The appellants argue the test results constituted prejudicial evidence of personal use of cocaine, because the results showed the presence of cocaine in the berthing area. This argument lacks merit. No cocaine was found in the berthing area. Moreover, no trace of cocaine was found on any of the appellants' clothing. There simply was no "other bad acts" evidence.

The district court did not abuse its discretion in admitting the evidence of the Sherwood spray test and its results.

The district court granted the government's motions for protective orders under the Classified Information Procedures Act ("CIPA"), 18 U.S.C. app. 3 (1994), and Federal Rule of Criminal Procedure 16(d)(1). The appellants moved for a mistrial, arguing (1) the district court did not follow the procedures set forth in CIPA; (2) confidential informant and relevant surveillance information was contained within the material and should have been disclosed; and (3) the district court's use of ex parte, in camera hearings improperly prejudiced the court against the appellants.

CIPA creates a pretrial procedure for ruling upon the admissibility of classified information. United States v. Sarkissian, 841 F.2d 959, 965 (9th Cir.1988). When the government seeks to protect classified information, sections 3 and 4 of CIPA are relevant. United States v. Pringle, 751 F.2d 419, 427 (1st Cir.1984). Section 4 provides in relevant part:

The court may permit the United States to make a written request for [an authorization to delete specified items in discoverable documents] in the form of a written statement to be inspected by the court alone. If the court enters an order granting relief following such an ex parte showing, the entire text of the statement of the United States shall be sealed and preserved in the records of the court to be made available to the appellate court in the event of an appeal.

18 U.S.C. app. 3, § 4 (1994).

The appellants argue the material was not properly classified and the government did not follow the procedures required under CIPA.

In order to show that material is classified, the government must make a formal claim of state secret privilege. Sarkissian, 841 F.2d at 966. This formal claim must "be lodged by the head of the department which has actual control over the matter, after actual personal consideration by that officer." United States v. Reynolds, 345 U.S. 1, 7-8, 73 S.Ct. 528, 97 L.Ed. 727 (1953) (footnotes omitted). We have examined the government's sealed submissions and conclude they satisfy Reynolds.

The appellants also argue that although CIPA provides that the district court may conduct an ex parte, in camera review of written material, it may not hold the ex parte, in camera hearings it held in this case. Government counsel was present at these hearings; defense counsel was not.

The appellants base their argument on the text of CIPA and Rule 16, both of which refer to "a written statement to be inspected by the court [/judge] alone." CIPA § 4, 18 U.S.C. app. 3 § 4; Fed R.Crim. P. 16(d)(1) (emphasis added). No mention is made in CIPA or Rule 16 about a hearing in which counsel participate.

Ex parte hearings are generally disfavored. See, e.g., United States v. Kenney, 911 F.2d 315, 321 (9th