                     FOR PUBLICATION

   UNITED STATES COURT OF APPEALS
        FOR THE NINTH CIRCUIT


 UNITED STATES OF                           No. 17-16017
 AMERICA,
      Plaintiff-Appellee,                    D.C. Nos.
                                       2:15-cv-02476-APG
              v.                    2:14-cr-00249-APG-PAL-3

 SENG CHEN YONG,
    Defendant-Appellant.                      OPINION



        Appeal from the United States District Court
                 for the District of Nevada
        Andrew P. Gordon, District Judge, Presiding

          Argued and Submitted September 6, 2018
                 San Francisco, California

                        Filed June 7, 2019

   Before: Marsha S. Berzon and Michelle T. Friedland,
   Circuit Judges, and Kathleen Cardone, * District Judge.

                   Opinion by Judge Cardone



    *
      The Honorable Kathleen Cardone, United States District Judge for
the Western District of Texas, sitting by designation.
2                   UNITED STATES V. YONG

                          SUMMARY **


                         28 U.S.C. § 2255

    The panel affirmed the district court’s denial of Seng
Chen Yong’s 28 U.S.C. § 2255 motion to vacate his guilty
plea and set aside his misdemeanor conviction related to
operating an unlawful sports betting operation.

    Yong argued that his guilty plea was involuntary because
it was improperly conditioned on leniency for his son and
was tainted by government misconduct.

    The panel held that a guilty plea made in exchange for
leniency to a third party is involuntarily made if the
government lacked probable cause to prosecute the third
party at the time of the guilty plea. Considering the totality
of the circumstances, the panel held that the Government had
probable cause to prosecute Yong’s son at the time of
Yong’s plea.

    Rejecting Yong’s contention that the Government’s
pervasive misconduct required reversal, the panel did not
believe that the misconduct tainted his plea or otherwise
improperly induced it, where Yong was aware of the
misconduct and decided to plead guilty nevertheless.




    **
       This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
                  UNITED STATES V. YONG                      3

                         COUNSEL

Thomas C. Goldstein (argued) and Tejinder Singh,
Goldstein & Russell P.C., Bethesda, Maryland, for
Defendant-Appellant.

Elizabeth O. White (argued), Appellate Chief; Adam Flake,
Assistant United States Attorney; Steven W. Myhre, Acting
United States Attorney; United States Attorney’s Office, Las
Vegas, Nevada; for Plaintiff-Appellee.


                         OPINION

CARDONE, District Judge:

    Defendant-Appellant Seng Chen Yong (“Yong”) appeals
the denial of his 28 U.S.C. § 2255 motion to vacate his guilty
plea and set aside his misdemeanor conviction related to
operating an unlawful sports betting operation. Yong and a
group of associates were originally charged with felonies
related to an illegal sports betting operation based in Caesars
Palace Hotel & Casino (“Caesars”) in Las Vegas during the
2014 World Cup soccer tournament. As part of a group plea
deal, Yong and three co-defendants pleaded guilty to the
misdemeanor of acting as an accessory after the fact to co-
defendant Hui Tang’s violations of the Wire Act, 18 U.S.C.
§ 1084. In exchange for this group plea, the Government
dismissed felony charges pending against Yong’s son, Wai
Kin Yong (“Wai Kin”). On appeal, Yong argues that his
guilty plea was involuntary because it was improperly
conditioned on leniency for Wai Kin and was tainted by
government misconduct.
4                 UNITED STATES V. YONG

    As to the first issue, we consider, as a matter of first
impression, the standard for determining the voluntariness of
guilty pleas obtained through offers of leniency for third
parties. We hold that a guilty plea made in exchange for
leniency to a third party is involuntarily made if the
government lacked probable cause to prosecute the third
party at the time of the guilty plea. Because the Government
had probable cause to prosecute Wai Kin at the time of
Yong’s plea, we affirm. We likewise affirm on the
government misconduct challenge, as Yong was aware of
the Government’s misconduct at the time of his plea but
nonetheless pleaded guilty.

     FACTUAL AND PROCEDURAL HISTORY

    In June of 2014, a group of gamblers from Asia traveled
to Las Vegas for the 2014 FIFA World Cup soccer
tournament kickoff. The group stayed at Caesars in luxury
villas ranging in size from 8,000 to 12,000 square feet.
Yong, his son Wai Kin, and their guests stayed in Villa 8881.
Wei Seng Phua (“Phua”), his son Wai Kit Phua (“Wai Kit”),
and their guests stayed in Villa 8882. Hui Tang and his
guests stayed in Villa 8888.

    During this stay, a Caesars employee entered Villa 8888
to check on the condition of the suite. The employee noticed
an array of computers and computer monitors that were not
normally present in the room and were arranged in an
unusual configuration. The employee reported the presence
of the computers to his supervisors. Caesars technical
support and security staff discovered that the guests of Villa
8888 had requested the installation of an unusual amount of
technical equipment, including eight computers, multiple
monitors, three televisions connected to three different
cable/satellite television providers, desk telephones, and
enhanced Digital Subscriber Line (“DSL”) internet access.
                  UNITED STATES V. YONG                      5

The Caesars management was concerned that the
arrangement could be used to operate an illegal sports book.
Caesars informed the Nevada Gaming Control Board
(“NGCB”), which informed the Federal Bureau of
Investigation, which opened an investigation. The FBI
suspected that the individuals in the three villas were jointly
participating in an illegal betting operation but lacked
sufficient evidence to pursue a case against anyone except
the individuals staying in Villa 8888.

    After brainstorming about how to “tighten up the
[probable cause],” and with assistance from a contractor
responsible for internet services at Caesars, the FBI agents
and the assistant United States Attorney assigned to the case
devised a plan to search the villas without obtaining a
warrant. FBI agents, together with NGCB agents and the
cooperating IT contractor, attempted to disrupt the DSL
internet service to villas 8882 and 8888, the Phua and Tang
villas respectively. They did so in the hope of generating a
call for service—and with such a call, the opportunity to
enter the villas. No call for service came, but someone in
Villa 8882 requested a laptop. Seizing on the opportunity,
the contractor and an FBI agent posing as the contractor’s
employee went to deliver the laptop. When they entered
Villa 8882, the contractor and the agent heard what sounded
like a sporting event playing in the background, but a butler
prevented them from going further into the suite.

    Sometime later, the contractor received a service call
from Villa 8881 reporting that the internet was not working.
Realizing that he had accidentally disrupted the internet
service for Villa 8881 instead of Villas 8882 and 8888, the
contractor reconnected Villa 8881’s internet and then
entered Villa 8881 to look around, acting as though he was
responding to the service call even though he had already
6                 UNITED STATES V. YONG

fixed the disruption. The contractor carried on a fake
telephone conversation “to make it look like [he was] there
for a legitimate purpose,” and recorded the visit on his cell
phone. Yong was present in Villa 8881 while the contractor
was there, looking at what appeared to the contractor to be a
sports website of some kind.

    The next day, the contractor tried to disrupt the service
to Villa 8882 again and this time succeeded. After Phua told
the butler on duty that the internet was not working, the
butler put in a call for service. Two agents masquerading as
technicians and wearing body cameras responded to the call
so they could look for incriminating evidence. When they
entered Villa 8882, the agents found Phua sitting at a laptop
computer, viewing a sports betting site. On Phua’s
computer, the agents also saw an open instant messaging
window containing the words “good luck on the hedge bet,”
or something similar. Another person was also viewing a
sports-betting website, but he quickly switched to viewing
the Google search page when he noticed an agent
approaching. Yong was there as well, visiting from Villa
8881, but he was not using a laptop.

    The agents, with the help of an assistant United States
Attorney, filed a warrant application to search Villas 8881,
8882, and 8888. The warrant application omitted the fact
that the agents had only been able to enter the villas by
surreptitiously disrupting the DSL. In fact, the agents
created multiple documents designed to give the false
impression that the internet outages had been fortuitous,
rather than orchestrated by the FBI. In addition, the warrant
application asserted that the contractor, on his visit to Villa
8881 after the accidental disruption of internet service to that
suite, saw Yong monitoring “odds for illegal sports
gambling,” even though, as the contractor later admitted,
                  UNITED STATES V. YONG                      7

nothing about the website indicated that it was illegal, or
even gambling-related at all.

    The magistrate judge signed the warrant on July 9, 2014,
and it was executed the same day. Yong was present when
agents executed the warrant on Villa 8881, the villa where
Yong and Wai Kin were staying. The search of that villa
revealed gambling ledgers containing names, win/loss
records, and percentages paid to various representatives and
associates. Agents executing the Villa 8882 warrant found
Phua, Phua’s son, and Wai Kin, Yong’s son, watching while
a World Cup soccer match played on the television. All
three were sitting in front of laptop computers viewing a
sports betting website displaying real-time betting odds for
the soccer game. The laptops also displayed instant
messaging windows. Wai Kin’s laptop, logged into the
betting website showed an available balance of $1.6 million
U.S. dollars. The agents found ledgers in Villa 8882 similar
to those found in Villa 8881.

    Five days later, the Government filed a criminal
complaint charging eight defendants—including Yong and
Wai Kin—with federal felonies, including the operation of
an illegal gambling business in violation of 18 U.S.C. § 1955
and violations of the Wire Act, 18 U.S.C. § 1084. The
defendants were arrested and subsequently indicted by a
federal grand jury.

    In the course of pre-trial discovery, the Government
produced a tape recording that alerted Yong and the other
defendants to the fact that the Government had intentionally
disrupted the DSL to gain entry into the villas. On
October 27, 2014, Phua, Phua’s son, Yong, and Wai Kin
filed a motion to suppress the evidence obtained from the
hotel rooms, both before and after the execution of the
warrant, as well as all fruits thereof. The next day, they also
8                UNITED STATES V. YONG

filed a motion arguing that the Government’s
misrepresentations and omissions to the magistrate judge
tainted the search warrant under Franks v. Delaware,
438 U.S. 154 (1978), arguing that the fruits of the search
warrant must be suppressed on that basis as well. In the
motions, the defendants argued that the Government
invalidly obtained their consent to enter by intentionally
disrupting the DSL in the defendants’ villas, concealed that
fact from the magistrate judge, and made numerous
additional intentional or reckless misstatements in the
warrant affidavit.

    The Government responded to the motions in November
2014, conceding that it intentionally disrupted the DSL
service to the villas but arguing that its actions were
nonetheless constitutional. The Government did not,
however, fully admit the extent of its actions at that time.

    After the briefing on the motions was complete, but
before the evidentiary hearing on the motions, Yong and four
of his co-defendants negotiated pleas. Yong agreed to plead
guilty to the misdemeanor of acting as an accessory after the
fact to co-defendant Hui Tang’s violations of the Wire Act,
as set forth in a superseding criminal information. His plea
agreement explained that it was part of a “group plea.” It
was conditioned upon each of five defendants pleading
guilty and upon the court accepting those pleas. The
agreement also stated that “[i]n exchange for defendant
SENG CHEN YONG and [four other defendants] entering
their group pleas, the Government will move to dismiss the
charges pending against Wai Kin Yong.”

    Yong and the Government agreed to recommend a
sentence of five years of unsupervised probation and a fine
of $100,000. They further agreed that Yong would depart
                  UNITED STATES V. YONG                     9

the country immediately and not return for five years. Yong
also agreed to forfeit his interest in certain property.

    On December 10, 2014, the district court conducted a
hearing to decide whether to accept Yong’s plea. The court
explained to Yong that the purpose of the hearing was “to
make sure that you understand the consequences of a guilty
plea,” and “to make sure that you are entering into this plea
and this agreement with the Government knowingly,
voluntarily, and that you are not being forced or coerced into
this agreement and into this plea.” The court then asked
several questions to assess whether Yong’s plea was
intelligent and voluntary. Near the beginning of the
colloquy, the court asked Yong, “[h]ave any threats or
promises been made to you to get you to waive your right to
an indictment?” to which Yong responded “No.” The court
also asked the Government to provide its understanding of
the plea agreement, whereupon the Government clarified,
among other things, that it was a group plea proposal, that
Yong was the last defendant to satisfy the group condition,
and that the Government would dismiss charges against Wai
Kin if the plea were accepted. The court again asked Yong
if “anyone threatened [him] in order to get [him] to plead
guilty,” or if anyone was “forcing [him] in any way to plead
guilty,” to which his answer was again “No.” The court
entered a judgment of conviction and sentenced Yong to five
years of unsupervised probation. At the end of the hearing
and after it had accepted Yong’s plea and imposed his
sentence, the court was made aware that Wai Kin was
Yong’s son.

    Phua and his son did not plead guilty and pressed on with
the motion to suppress. After a four-day evidentiary hearing,
the magistrate judge issued two reports recommending that
the Franks motion be granted because the warrant affidavit
10                  UNITED STATES V. YONG

contained material omissions and misrepresentations that,
once removed, left the warrant lacking probable cause
sufficient to support the search. At the same time, the
magistrate judge concluded that the warrantless entry to drop
off the laptop did not violate the Phuas’ Fourth Amendment
rights because the occupants had validly consented to the
entry. The magistrate judge also held, however, that the
agents’ thwarted attempt to enter the interior of the villa
exceeded the scope of that consent, so any evidence gathered
from that attempted entry should be suppressed. The agents’
entry while posing as technicians to repair the DSL
disruption was also justified by the Phuas’ consent, the
magistrate judge opined, even though the agents had
misleadingly obtained the consent by intentionally
disrupting the DSL as part of their ruse to gain access.

    Several months later, the district court rejected the
magistrate judge’s recommendation in part and granted
Phua’s motions 1 to suppress the Government’s evidence in
full. Specifically, the court held that the Government had
repeatedly violated the Fourth Amendment by disrupting
internet service to the villas in order to gain entry and by
submitting a warrant affidavit containing multiple
intentional and reckless falsehoods and omissions in
violation of Franks. Shortly afterward, the court dismissed
the charges against Phua.

   Yong then moved to vacate his conviction in the district
court under 28 U.S.C. § 2255 on three grounds. First, he
argued that the Government committed misconduct in its

     1
      Phua’s son pleaded guilty after the magistrate judge recommended
that the Franks motion be granted but before the district court entered
judgement, leaving Phua as the sole defendant litigating the motions to
suppress.
                  UNITED STATES V. YONG                     11

investigation and prosecution of the case sufficient to render
his plea involuntary. Second, he argued that it was unlawful
to condition dismissal of charges against Wai Kin on Yong’s
plea because the Government lacked probable cause to
prosecute Wai Kin. The district court denied Yong’s motion
without a hearing but granted a certificate of appealability as
to all three issues raised in the motion. Yong moved for
reconsideration, which the district court denied.

                STANDARD OF REVIEW

    We review a district court’s denial of a § 2255 motion de
novo, United States v. Ratigan, 351 F.3d 957, 961 (9th Cir.
2003) (citing United States v. Benboe, 157 F.3d 1181, 1183
(9th Cir. 1998)), while we review for clear error any factual
findings the district court made in deciding the motion,
United States v. Christakis, 238 F.3d 1164, 1168 (9th Cir.
2001). We review de novo a district court’s finding as to
whether a plea is knowing and voluntary. United States v.
Kaczynski, 239 F.3d 1108, 1114 (9th Cir. 2001) (citing
United States v. Littlejohn, 224 F.3d 960, 964 (9th Cir.
2000)).

                       DISCUSSION

    “Due process guarantees under the [F]ifth [A]mendment
require that a defendant’s guilty plea be voluntary and
intelligent.” Torrey v. Estelle, 842 F.2d 234, 235 (9th Cir.
1988) (citing Boykin v. Alabama, 395 U.S. 238, 242 (1969)).
Yong argues that his guilty plea was not voluntary for two
reasons: (1) the Government impermissibly conditioned
leniency for Wai Kin on Yong’s guilty plea, and (2) the
Government’s misconduct was so pervasive as to have
coerced Yong’s plea. The Government does not deny using
the charges against Wai Kin as a bargaining chip in its plea
negotiations with Yong, nor does it deny engaging in
12                UNITED STATES V. YONG

misconduct during the investigation. Nevertheless, the
Government maintains that its actions did not render Yong’s
guilty plea involuntary, because (1) the Government had
probable cause to prosecute Wai Kin at the time of Yong’s
plea and (2) Yong’s plea was knowing and voluntary despite
the earlier misconduct. Lastly, the Government mounts a
procedural attack on the claims in Yong’s § 2255 motion to
vacate, arguing that he has not shown cause for his failure to
raise these issues on direct appeal.

                              A

     Before considering Yong’s challenges to the
voluntariness of his plea, we first address the Government’s
procedural argument on the motion to vacate. See United
States v. Braswell 501 F.3d 1147, 1149 (9th Cir. 2007)
(citing Bousley v. United States, 523 U.S. 614, 622 (1998)).

    To challenge a conviction in a § 2255 proceeding based
upon a claim of error that could have been raised on direct
appeal but was not, a defendant must demonstrate both cause
to excuse the procedural default, as well as actual prejudice
resulting from that error. United States v. Johnson, 988 F.2d
941, 945 (9th Cir. 1993) (citing United States v. Frady,
456 U.S. 152, 168 (1982)). Yong asserts two bases for cause
to excuse this default. First, Yong argues that “he had every
reason to expect that if he sought to appeal, the
[G]overnment would act vindictively toward his son.”
According to Yong, this “ongoing threat” of reinstatement
of charges against Wai Kin, or Wai Kin’s indictment on new
charges, effectively negated Yong’s ability to challenge the
voluntariness of his plea on direct appeal. Second, Yong
asserts that because the Government’s deceptive tactics
falsely inflated the strength of its case, he was not only
unduly pressured to plead guilty, but he was also unable to
                 UNITED STATES V. YONG                    13

assess the strength of his case to make reasoned decisions as
to his defense.

    Because we ultimately conclude that the claims in
Yong’s § 2255 motion are “clearly not meritorious despite
[the] asserted procedural bar,” we decline to resolve whether
Yong has sufficiently established cause and prejudice to
overcome procedural default and proceed to the merits. See
Franklin v. Johnson, 290 F.3d 1223, 1232 (9th Cir. 2002).

                             B

   Yong first seeks to set aside his guilty plea as
involuntary, arguing that the Government impermissibly
conditioned it on leniency for Wai Kin without having the
requisite probable cause to prosecute Wai Kin at the time of
Yong’s plea.

    A defendant may challenge a conviction resting on a
guilty plea on the ground that it was not “voluntary and
intelligent.” Tollett v. Henderson, 411 U.S. 258, 267 (1973).
“A plea is voluntary if it ‘represents a voluntary and
intelligent choice among the alternative courses of action
open to the defendant.’” Kaczynski, 239 F.3d at 1114
(quoting North Carolina v. Alford, 400 U.S. 25, 31 (1970)).
A plea of guilty entered by an individual fully aware of the
plea’s direct consequences “must stand unless induced by
threats (or promises to discontinue improper harassment),
misrepresentation (including unfulfilled or unfulfillable
promises), or perhaps by promises that are by their nature
improper as having no proper relationship to the prosecutor’s
business (e.g. bribes).” Id. (quoting Brady v. United States,
397 U.S. 742, 755 (1970)). “A guilty plea, if induced by
promises or threats which deprive it of the character of a
voluntary act, is void. A conviction based upon such a plea
is open to collateral attack.” Machibroda v. United States,
14                 UNITED STATES V. YONG

368 U.S. 487, 493 (1962). A conclusion that Yong’s plea
was involuntary would therefore invalidate his plea
agreement and require setting aside the conviction that
resulted from it. See id.

    We agree with Yong that with regard to his argument that
the Government improperly bargained with leniency for Wai
Kin, the validity of Yong’s guilty plea hinges on the
existence of probable cause to prosecute Wai Kin at the time
of his plea. The Government may offer a plea agreement to
a defendant where a third party receives a benefit from the
defendant’s decision to plead guilty. United States v. Caro,
997 F.2d 657, 658–59 (9th Cir. 1993). A plea is therefore
not necessarily invalid if taken in exchange for leniency for
a third party or in response to a prosecutor’s justifiable threat
to prosecute a third party if the plea is not entered. Id.; See
United States v. Castello, 724 F.2d 813, 814–15 (9th Cir.
1984). The guilty plea, however, must still be voluntarily
made. Fed. R. Crim. P. 11(b)(2); Boykin, 395 U.S. at 242–
43. To determine the voluntariness of the plea, “we look to
the totality of the circumstances, examining both the
defendant’s ‘subjective state of mind’ and the ‘constitutional
acceptability of the external forces inducing the guilty
plea.’” Doe v. Woodford, 508 F.3d 563, 570 (9th Cir. 2007)
(quoting Iaea v. Sunn, 800 F.2d 861, 866 (9th Cir. 1986)).
And, when a plea agreement is made based upon a promise
or threat to a third party, “a more careful examination of the
voluntariness” is necessary. Caro, 997 F.2d at 659 (citing
Castello, 724 F.2d at 815).

    This circuit has yet to provide a standard for determining
whether a guilty plea conditioned on leniency for a third
party is voluntary. Every federal court of appeal to consider
the issue, however, has held that plea agreements that
condition leniency for third parties on the defendant’s guilty
                   UNITED STATES V. YONG                    15

plea are permissible so long as the Government acted in
“good faith,” meaning that it had probable cause to prosecute
the third party. See United States v. McElhaney, 469 F.3d
382, 385 (5th Cir. 2006); United States v. Vest, 125 F.3d 676,
680 (8th Cir. 1997); United States v. Wright, 43 F.3d 491,
499 (10th Cir. 1994); United States v. Pollard, 959 F.2d
1011, 1021–22 (D.C. Cir. 1992); United States v. Marquez,
909 F.2d 738, 742 (2d Cir. 1990); Martin v. Kemp, 760 F.2d
1244, 1248 (11th Cir. 1985); Harman v. Mohn, 683 F.2d
834, 837 (4th Cir. 1982); United States v. Nuckols, 606 F.2d
566, 569–70 (5th Cir. 1979); see also Politte v. United
States, 852 F.2d 924, 929 (7th Cir. 1988) (“We hold that a
good faith prosecution of a third party, coupled with a plea
agreement which provides for a recommendation of a lenient
sentence for that third party, cannot form the basis of a claim
of coercion by a defendant seeking to show that a plea was
involuntarily made.”). As the Fifth Circuit explained in
Nuckols:

       Recognizing, however, that threats to
       prosecute third persons can carry leverage
       wholly unrelated to the validity of the
       underlying charge, we think that prosecutors
       who choose to use that technique must
       observe a high standard of good faith.
       Indeed, absent probable cause to believe that
       the third person has committed a crime,
       offering “concessions” as to him or her
       constitutes a species of fraud. At a minimum,
       we think that prosecutors may not induce
       guilty pleas by means of threats which, if
       carried out, would warrant ethical censure.

606 F.2d at 569.
16                   UNITED STATES V. YONG

    We agree with these courts and hold that the Government
must have probable cause to prosecute a third party when it
conditions leniency for that party in exchange for a
defendant’s guilty plea. We note that these courts have used
wording that focuses on whether probable cause was present
at the time the threat was made or lenity offered. See, e.g.,
Marquez, 909 F.2d at 742 (“Where the plea is entered after
the prosecutor threatens prosecution of a third party, courts
have afforded the defendant an opportunity to show that
probable cause for the prosecution was lacking when the
threat was made.”); Wright, 43 F.3d at 499. A prosecutor’s
improper coercion actually takes effect, though, when a
defendant pleads guilty as a result of the threat or offer of
lenity. Therefore, a defendant may successfully challenge
the voluntariness of his plea by showing that probable cause
to prosecute the third party did not exist at the time the
defendant pleaded guilty, even if the Government had
probable cause to prosecute at an earlier time. 2


     2
       Because plea agreements reached in exchange for leniency for a
third party “might pose a greater danger of inducing a false guilty plea
by skewing the assessment of the risks a defendant must consider,” Caro,
997 F.2d at 659 (quoting Bordenkircher v. Hayes, 434 U.S. 357, 364 n.8
(1978)), the Government must also have probable cause to prosecute the
defendant being offered the plea in exchange for leniency for a third
party, in addition to probable cause to prosecute the third party. In other
words, a “high standard of good faith” requires the Government to have
probable cause both to prosecute the defendant and to prosecute the third
party at the time the defendant enters the plea agreement in exchange for
leniency for the third party. See Nuckols, 606 F.2d at 569.

     Yong has not challenged that the Government lacked probable cause
to support the charges against him in this case. Even if he had, there was
at least as much evidence against him as against Wai Kin, so, as
explained more below, his challenge to the plea on that ground would
have also failed.
                  UNITED STATES V. YONG                     17

    “Probable cause exists when there is a fair probability or
substantial chance of criminal activity.” United States v.
Bishop, 264 F.3d 919, 924 (9th Cir. 2001) (quoting Illinois
v. Gates, 462 U.S. 213, 235 (1983)). The Supreme Court has
“often told litigants” that probable cause “is not a high bar.”
Kaley v. United States, 571 U.S. 320, 338 (2014). We look
for a “fair probability” on which “reasonable and prudent
[people,] not legal technicians, act.” Florida v. Harris,
568 U.S. 237, 244 (2013) (alteration in original) (quoting
Gates, 462 U.S. at 231, 238)). We must assess probable
cause based upon the “totality of the circumstances” under
this “practical and common-sensical standard.” Id.

    Here, in exchange for Yong’s guilty plea, the
Government offered to drop the charges against Yong’s son,
Wai Kin. It is well established that, absent fraud on the
grand jury or some similar process flaw, a grand jury
indictment conclusively demonstrates probable cause at the
time of the indictment. See Kaley, 571 U.S. at 328 (citing
Gerstein v. Pugh, 420 U.S. 103, 117 n.19 (1975)). The
Government acknowledged at argument, however, that if it
later discovers post-indictment, after further investigation,
evidence that undermines or contradicts the evidence
presented to the grand jury, probable cause may no longer
exist. Yong argues that because further investigation after
the indictment did not reveal additional inculpatory
evidence as to Wai Kin, there was no longer probable cause
at the time Yong accepted the plea agreement and pleaded
guilty. Accordingly, the issue we confront is whether the
Government’s failure to find further evidence against Wai
Kin is equivalent to it discovering evidence that undermines
or contradicts the evidence it presented before the grand jury
to obtain the indictment.
18                UNITED STATES V. YONG

    We conclude that there was always sufficient evidence
to support the finding of probable cause for the charges
against Wai Kin, and that the failure to find further evidence
did not change that. There is no dispute that when the agents
entered Villa 8882, they observed Wai Kin sitting before an
active laptop computer monitoring live odds of the World
Cup match he was viewing on television. Further, he was
logged into the laptop using the login name “WaiKin.” He
was seated near Phua, who it was later discovered had
exchanged hundreds of messages regarding a large-scale
illegal sports book, and Phua’s son Wai Kit. The World Cup
tournament was the subject of the gambling operation and
Wai Kin, Phua, and Wai Kit were seemingly engaged in
parallel activity when the agents entered Villa 8882.
Moreover, hand-written ledgers documenting bets were
found in both Villas 8881 and 8882. Viewing these
uncontested observations through a “practical” and
“common-sensical” lens, there was a fair probability that
criminal activity was afoot and that Wai Kin was involved.
See Harris, 568 U.S. at 244.

    We are mindful that “[a]s a corollary . . . of the rule that
the police may rely on the totality of facts available to them
in establishing probable cause, they also may not disregard
facts tending to dissipate probable cause.” United States v.
Lopez, 482 F.3d 1067, 1073 (9th Cir. 2007) (quoting United
States v. Ortiz-Hernandez, 427 F.3d 567, 574 (9th Cir.
2005)). It is also true, as Yong argues, that the Supreme
Court has found in the context of Brady violations that an
investigation’s failure to turn up incriminating evidence
against a defendant can be exculpatory. See Kyles v.
Whitley, 514 U.S. 419, 423, 429, 450 (1995). For example,
in Kyles, part of the prosecution’s theory was that the killer
(when Kyles was charged with being the killer) drove to a
parking lot the evening after the murder and left his car there
                   UNITED STATES V. YONG                         19

to hide the vehicle from the police. Id. at 450. But the
prosecution learned that a computer print-out of license
numbers of the cars parked in the lot that night did not
include the number of Kyles’s car. Id. Although the new
evidence did not totally negate the prosecution’s theory—
because Kyles could have moved his car before the list was
created and because the list was not necessarily
comprehensive—the Court held that the evidence that
Kyles’s car was not listed was still exculpatory. Id.; cf. Fed.
R. Evid. 803(7) (providing that the “Absence of a Record of
a Regularly Conducted Activity” may be evidence that “the
matter did not occur or exist”). 3

    Relying on this line of case law, Yong asserts that the
fact that the further investigation into the gambling operation
failed to turn up additional evidence of Wai Kin’s
involvement even while it did produce additional evidence
implicating his codefendants suggests that Wai Kin was not
participating in the gambling scheme. Yong contends that
this means probable cause regarding Wai Kin had dissipated
by the time of the plea. We do not agree.

    The results of the investigation did not alter the agents’
observations of Wai Kin when they entered Villa 8882, or
the reasonable inferences drawn from those observations.
The observations of Wai Kin in Villa 8882 were consistent
with his involvement in the illegal gambling operation.
Monitoring the live odds of the soccer match was a task that
could advance the illegal gambling operation, and Wai Kin


    3
       These cases consider the nature of exculpatory evidence under
Brady v. Maryland, 373 U.S. 83 (1963), but are relevant here, as the
Court is determining whether the results of the Government’s
investigation constitute exculpatory evidence.
20               UNITED STATES V. YONG

was seated with Phua and Wai Kit, who were engaged in
similar activity.

    Further, while the investigation produced no additional
evidence implicating Wai Kin in the operation, it is not
improbable that Wai Kin was assisting the gambling
operation by monitoring the live odds of the match when the
agents entered the villa. Nor does the absence of additional
evidence render improbable that Wai Kin could have
assisted the gambling operation in ways that would not leave
an electronic trail. Because probable cause does not require
demonstrating actual criminal activity, only a probability or
substantial chance of such activity, we cannot say the
Government was without probable cause as to Wai Kin. See
Harris, 568 U.S. at 244; Bishop, 264 F.3d at 924.

    In sum, the investigation’s failure to uncover further
evidence implicating Wai Kin in the gambling operation
certainly undermined the likelihood of a conviction should
the Government have proceeded against him. A conviction
therefore may well have been elusive for the Government.
But, probable cause “is not a high bar.” Kaley, 571 U.S.
at 338. Considering the totality of the circumstances, the
Government had probable cause to prosecute Wai Kin at the
time of Yong’s plea. See Harris, 568 U.S. at 244. Because
probable cause remained to prosecute Wai Kin at the time of
Yong’s plea, the plea was not involuntary. See McElhaney,
469 F.3d at 385; Vest, 125 F.3d at 680; Wright, 43 F.3d
at 499; Pollard, 959 F.2d at 1021–22; Marquez, 909 F.2d
at 742; Martin, 760 F.2d at 1247–48 (11th Cir. 1985);
Harman, 683 F.2d at 837; Nuckols, 606 F.2d at 569.

                             C

   Yong also asserts that the Government’s pervasive
misconduct tainted his guilty plea, rendering it involuntary
                  UNITED STATES V. YONG                     21

and therefore warranting reversal. Yong’s primary support
for this argument is a Fourth Circuit case, United States v.
Fisher, 711 F.3d 460 (4th Cir. 2013), which interpreted
Brady v. United States, 397 U.S. 742 (1970).

    In Brady, the Supreme Court stated that a guilty plea is
not voluntary if it was “induced by,” among other things,
“misrepresentation.” Id. at 755 (quoting Shelton v. United
States, 246 F.2d 571, 572 n.2 (5th Cir. 1957) (en banc)). The
Court in Brady pointed to “unfulfilled or unfulfillable
promises” during plea negotiations as examples of such
misrepresentation. Id. In Fisher, the Fourth Circuit
interpreted such “misrepresentations” to include deliberate
fabrications by law enforcement officers used to obtain
search warrants. There, a police officer admitted, after the
defendant pleaded guilty, to lying in a sworn affidavit used
to obtain the search warrant and secure evidence against the
defendant. Id. Given that the defendant was completely
unaware at the time of the plea of the misconduct that led to
the charges against him, the Fourth Circuit concluded that
“the officer’s affirmative misrepresentation, which informed
the defendant’s decision to plead guilty and tinged the entire
proceeding, rendered the defendant’s plea involuntary and
violated his due process rights.” Id.

    Here, the district court held, after Yong entered his plea,
that there had been “gross police misconduct” that “went to
the heart of the prosecution’s case.” The district court held
that the Government submitted an affidavit in support of its
search warrant application containing multiple intentional
and reckless falsehoods in violation of Franks v. Delaware,
438 U.S. 154 (1978), and in addition that the Government
conducted unconstitutional searches prior to obtaining the
warrant.
22               UNITED STATES V. YONG

    Unlike in Fisher, however, when Yong accepted the plea
deal, he was aware of the Government’s misconduct, which,
as the district court aptly explained, “equipped him to
voluntarily choose between accepting a plea and continuing
to defend” against the charges levied against him. By that
time, Yong and his co-defendants had filed suppression
motions outlining in detail the Government’s ruse to
intentionally disrupt the DSL connection as a means of
entering the villas; the Government had conceded that it had
entered the villas through the scheme; and the district court
had scheduled the evidentiary hearing to take place in a few
days time. It was only then that Yong accepted the last-
minute deal.

    Fisher relies largely on its finding that there was a
“‘reasonable probability’ that [the defendant] would not
have plead [sic] guilty, had he known of the impermissible
government conduct.” Fisher, 711 F.3d at 468 (quoting
Ferrara v. United States, 456 F.3d 278, 294 (1st Cir. 2006)).
Given Yong’s awareness of the Government’s misconduct
and his decision to plead guilty nevertheless, we do not
believe that the misconduct tainted his guilty plea or
otherwise improperly induced it. See Brady, 397 U.S.
at 755.

                     CONCLUSION

    For the foregoing reasons, we AFFIRM the district
court’s denial of Yong’s § 2255 motion to vacate his guilty
plea.
