FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

EZEQUIEL FRANCISCO MORANGARCIA,

Defendant-Appellant.

No. 19-50134

D.C. No.

3:18-cr-05210-

BAS-1

OPINION

Appeal from the United States District Court

for the Southern District of California

Cynthia A. Bashant, District Judge, Presiding

Argued and Submitted March 6, 2020

Pasadena, California

Filed July 23, 2020

Before: Andrew J. Kleinfeld and Jacqueline H. Nguyen,

Circuit Judges, and William H. Pauley III,

*

 District Judge.

Opinion by Judge Kleinfeld

* The Honorable William H. Pauley III, United States District Judge

for the Southern District of New York, sitting by designation.
2 UNITED STATES V. MORAN-GARCIA

SUMMARY**

Criminal Law

Because venue was not established, the panel vacated a

conviction for attempting to enter the United States after

having been deported and attempting to enter the United

States other than at a place designated, and remanded for

dismissal of the indictment without prejudice.

The defendant was among passengers caught in a

disguised boat six miles off the California coast. The panel

wrote that the location of the putative offense was not within

the Southern District of California, which comprises Imperial

County (landlocked) and San Diego County, whose western

border, as defined by California law, extends three miles into

the Pacific Ocean. Observing that proper venue is a

constitutional right and a question of fact that the government

must prove by a preponderance of the evidence, the panel

wrote that the district court could not properly decide venue

itself and should have submitted the issue to the jury. 

The panel rejected the government’s harmlessness

argument based on a new theory of venue on appeal—that

venue was proper in the Southern District of California under

18 U.S.C. § 3238, which provides that the trial of an offense

begun or committed outside any judicial district shall be in

the district in which the offender is arrested or first brought. 

The panel explained that when, as here, a court has failed to

give a venue instruction to the jury, that error will be viewed

** 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. MORAN-GARCIA 3

as harmless if the evidence viewed rationally by a jury could

only support a conclusion that venue existed. Observing that

it is not certain and obvious that the agents would have

brought their arrestees to the Southern District of California,

the panel could not say that no rational juror could have

concluded otherwise, considering that the government had the

burden of proof.

Because double jeopardy does not apply in the same way

to a failure to prove venue as it does to a failure to prove an

element of an offense, the panel remanded with instructions

to dismiss the indictment without prejudice. The panel wrote

that the district court has discretion with regard to collateral

estoppel if that is raised in a motion before it.

COUNSEL

Doug Keller (argued), Federal Defenders of San Diego Inc.,

San Diego, California, for Defendant-Appellant.

Zachary J. Howe (argued), Assistant United States Attorney;

Daniel E. Zipp, Chief, Appellate Section, Criminal Division;

Robert S. Brewer Jr., United States Attorney; United States

Attorney’s Office, San Diego, California; for PlaintiffAppellee.
4 UNITED STATES V. MORAN-GARCIA

OPINION

KLEINFELD, Senior Circuit Judge:

We vacate the conviction and remand for dismissal of the

indictment without prejudice because venue was not

established.

Ezequiel Francisco Moran-Garcia was among the

passengers caught late at night six miles off the California

coast in a small, disguised boat. He was indicted for

attempting to enter the United States after having been

deported, in violation of 8 U.S.C. § 1326(a) and (b), and for

attempting to enter the United States other than at a place

designated, in violation of 8 U.S.C. § 1325. The indictment

alleged that these offenses had occurred “within the Southern

District of California.”

Before trial, the government argued that the district court

should take judicial notice that the Southern District of

California extended twelve miles out to sea and so instruct the

jury. The evidence at trial established that Moran was

apprehended six miles off the coast, within sight of the lights

of San Diego. San Diego is within the Southern District of

California. At the conclusion of the government’s evidence,

defense counsel moved under Federal Rule of Criminal

Procedure 29 for a judgment of acquittal based on insufficient

evidence of venue. Defense counsel argued that the Southern

District extended only three miles out to sea, not twelve, so

the government had failed to prove that the offense was

committed within the Southern District. The district court

denied the motion, accepting the government’s argument that

the location where the boat was captured was within the

Southern District. The court then ruled that no jury
UNITED STATES V. MORAN-GARCIA 5

instruction on venue was appropriate because, in its view,

venue was not a question of fact for the jury but instead a

legal question that it had already decided by denying defense

counsel’s Rule 29 motion.

The government attorney gave bad counsel to the district

court. Defense counsel was correct, and the court erred by

taking the question from the jury. The Southern District of

California as defined by Congress “comprises the counties of

Imperial and San Diego.”1Imperial County is landlocked, so

only San Diego County matters to this case. “The territorial

sea of the United States . . . extends to 12 nautical miles,”2but

that is not true of the Southern District of California. 

California law defines the western border of San Diego

County as extending “to a point three English miles [into the]

Pacific Ocean.”3 Thus it is beyond debate that the location of

the putative offense was within the territorial waters of the

United States but was not within the Southern District of

California.

Controlling circuit law establishes that, although venue is

not an element of the offense, nevertheless “it must still be

proved by the government at trial.”4“Venue is a question of

fact that the government must prove by a preponderance of

1

 28 U.S.C. § 84(d).

2

 Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988).

3

 Cal. Gov’t Code § 23137.

4 United States v. Jensen, 93 F.3d 667, 669 n.2 (9th Cir. 1996) (citing

United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988)).
6 UNITED STATES V. MORAN-GARCIA

the evidence.”5It is a jury question. “[N]ormally it is not for

the court to determine venue” and “it is error to not give a

requested instruction on venue.”6 Venue is “part of the

bedrock of our federal system,”7and proper venue is a

“constitutional right,” “not a mere technicality.”8 The district

court therefore could not properly decide venue itself and

should have submitted the issue to the jury. The district court

could not properly take judicial notice that the location where

the boat was captured fell within the Southern District of

California, since it did not.

The government argues a new theory of venue on appeal,

one it did not urge at trial. Its new argument is that venue

was proper in the Southern District of California under

18 U.S.C. § 3238, which provides that the trial of an offense

begun or committed outside any judicial district “shall be in

the district in which the offender . . . is arrested or is first

brought.”9 The government argues that a rational juror could

5 United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012)

(citing United States v. Casch, 448 F.3d 1115, 1117 (9th Cir. 2006)).

6 Lukashov, 694 F.3d at 1112 (citing Casch, 448 F.3d at 1117).

7 Casch, 448 F.3d at 1117.

8 Lukashov, 694 F.3d at 1119; see also U.S. CONST. art. III, § 2, cl. 3.

9

18 U.S.C. § 3238 (emphasis added). 18 U.S.C. § 3238 reads in full:

The trial of all offenses begun or committed upon

the high seas, or elsewhere out of the jurisdiction of any

particular State or district, shall be in the district in

which the offender, or any one of two or more joint

offenders, is arrested or is first brought; but if such

offender or offenders are not so arrested or brought into
UNITED STATES V. MORAN-GARCIA 7

have found it more likely than not that Moran was first

brought to the Southern District of California. Therefore, the

government claims, the errors of taking venue away from the

jury and deciding the issue on an erroneous theory were

harmless. This argument is colorable because, as we have

held, error in taking venue away from the jury, though of

“constitutional magnitude, . . . is not structural,” and is

“consequently susceptible of harmless error analysis.”10

The government would thus have us apply the usual test

for insufficiency of evidence: whether “any rational juror”

could have concluded that Moran was “first brought” to the

Southern District of California.11 This would be the correct

test if the jury had concluded that venue was proper, but it is

the wrong test for harmless error in this case where the

question was not put to the jury and the jury made no

determination.

“[W]hen a court has failed to give a venue instruction to

the jury, that error will be viewed as harmless if the evidence

viewed rationally by a jury could only support a conclusion

that venue existed.”12 Thus, the test for harmless error is not

any district, an indictment or information may be filed

in the district of the last known residence of the

offender or of any one of two or more joint offenders,

or if no such residence is known the indictment or

information may be filed in the District of Columbia.

10 Casch, 448 F.3d at 1117.

11 United States v. Nevils, 598 F.3d 1158, 1166 (9th Cir. 2010) (en

banc).

12 Lukashov, 694 F.3d at 1120.
8 UNITED STATES V. MORAN-GARCIA

whether “any rational juror” could have concluded that

Moran was first brought to the Southern District of

California, but rather whether the evidence, had it been

viewed by a rational jury, could only have led to that

conclusion. This is a kind of converse of the sufficiency of

the evidence test applicable where a jury has made a

determination: Instead of asking whether a rational juror

could have reached the conclusion, we ask whether a rational

juror could have rejected the urged conclusion. Applying the

correct test, the government has not established harmlessness

of the error.

Sometimes “proof of venue may be so clear that failure to

instruct on the issue is not reversible error.”13In this case,

though, the proof was not so clear. No witness testified to

where Moran was first brought. The question was not asked. 

Government testimony established only that the boat was

apprehended six miles offshore within sight of the lights of

San Diego, and that the government’s marine interdiction unit

agent, who testified to the capture, was based in San Diego.

Venue, like most facts, can be proved as effectively by

circumstantial evidence as by direct evidence.14 The

government argues that this case is like United States v.

Trenary, where we held the jury could infer that the

defendants passed through the Southern District of California

based on their drive from Newport Beach, California, to

13 Casch, 448 F.3d at 1118 (quoting United States v. Martinez,

901 F.2d 374, 376 (4th Cir. 1990)).

14 United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974).
UNITED STATES V. MORAN-GARCIA 9

Punta Bandera, Mexico.

15 But this analogy is poor. In

Trenary, the smugglers driving from Newport Beach—on the

coast in the Central District of California—to Punta

Bandera—on the Baja California coast southwest of

Tijuana—would almost certainly have passed through the

Southern District of California.16 But in the case before us, it

is nowhere near so certain and obvious that the agents would

have brought their arrestees to the Southern District of

California. Though a rational juror could have so inferred,

we cannot say that no rational juror could have concluded

otherwise, considering that the government had the burden of

proof.

Had they been instructed on venue, the jurors could have

rationally concluded that, since no agent was asked where

Moran was first brought, and it was within the power of the

prosecutor to ask, that the agents did not know. Jurors might

have rationally inferred from the absence of easily available

evidence, as jurors often do, that if the government did not

present evidence that Moran was first brought to San Diego,

and had the burden of proving it, he probably was not brought

there. The evidence demonstrated that the agents patrolled

from San Diego all the way north to San Francisco. The

agents did not testify that they stopped patrolling as soon as

they caught an offender to bring him or her in, so a juror

might have inferred that the agents likely continued their

patrol north, at least until their boat was too full to continue.

The government urges that we reach a contrary

conclusion based on two documents that were not introduced

15 473 F.2d 680, 681–82 (9th Cir. 1973) (per curiam).

16 Id. at 682.
10 UNITED STATES V. MORAN-GARCIA

at trial. This argument is hard to understand, since rational

jurors could not have drawn an inference from evidence never

presented to them. Nor are the documents much help. The

government says that Moran neither does nor could raise any

actual doubt as to venue, perhaps suggesting that Moran

could not have proved that he was not first brought into the

Southern District. But this is irrelevant, since the burden of

proof was and is on the prosecution. The documents are of

limited force regardless.

One is the presentence report, which did not exist until

after the trial and was under seal. Jurors never see these. The

presentence report says that Moran and the other illegal aliens

caught “were turned over” to border-protection agents at

Point Loma Naval Base in San Diego. But the probation

officer who wrote the report had no personal knowledge of

this fact, and therefore must have been relying on what the

prosecutors or agents told him, or assumed it, since this fact

was of no importance to the sentencing recommendation.

The other document is an internal memorandum from one

interdiction agent in the agency to another saying that the

aliens on the boat “were transported to U.S. Naval Base Point

Loma [in San Diego] for further inspection” and then

“transported by U.S. Border Patrol Agents to the San

Clemente Border Patrol Station for processing” and

“arrested” at the dock in San Clemente. This document was

submitted during motion practice but not at trial. No juror

could have inferred anything from it, never having seen it. 

San Clemente, where Moran was arrested, is in the Central

District of California, not the Southern District of California. 

Since the statute says venue “shall be in the district in which
UNITED STATES V. MORAN-GARCIA 11

the offender . . . is arrested or is first brought,”17had jurors

seen this document, it might have added to their uncertainty. 

Neither they nor we, from what evidence was presented at

trial—and even what was not presented at trial but has been

put before us—would know from the record why Moran was

arrested in the Central District of California rather than in the

Southern District.

Venue is not an element of the crime.18 Unlike an

element, it need not be proved beyond a reasonable doubt.

19

But venue does need to be put to the jury, and proved by the

government, albeit only bya preponderance of the evidence.20

Neither was done here, and the evidence viewed rationally by

a jury would not necessarily support the conclusion that

venue lay in the Southern District of California. The errors,

not being harmless under the applicable standard, require that

Moran’s conviction be vacated.

The parties agree that the case should be dismissed upon

remand if we do not deem the error to have been harmless. 

They differ on whether dismissal should be with or without

prejudice. Citing Kaytso, we noted in United States v.

Ruelas-Arreguin that in the absence of a request by the

17 18 U.S.C. § 3238 (emphasis added).

18 Jensen, 93 F.3d at 669 n.2.

19 Lukashov, 694 F.3d at 1120.

20 Id.
12 UNITED STATES V. MORAN-GARCIA

defendant for transfer to a proper venue, the indictment

should be dismissed without prejudice.21

Generally, under the Double Jeopardy Clause, the

government does not get a second trial to prove what it failed

to prove by sufficient evidence in the first trial.22 But double

jeopardy does not apply in the same way to a failure to prove

venue as it does to a failure to prove an element of an offense. 

Unlike the typical reversal for sufficiency of the evidence, the

missing evidence here did not go to guilt or innocence; that

is, it had nothing to do with whether the defendant did or did

not do the criminal acts alleged in the indictment. We held in

United States v. Kaytso that double jeopardy does not bar a

conviction where the defendant was re-indicted after

dismissal of the first indictment based on the government’s

failure to prove venue in the first trial.23 The reason was that

“[w]hile venue presents a question of fact and must be proved

by the government, it is not an essential element of the

offense,” and “failure to establish venue does not go to guilt

or innocence.”24 Dismissal of the first indictment “cannot be

21 United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 n.1 (9thCir.

2000). Our attention has also been drawn to United States v. Lozoya,

920 F.3d 1231 (9th Cir. 2019), but that case has been taken en banc and

has no effect on this decision. Nor could it have an effect, since the case

does not modify the rule of Kaytso and Ruelas-Arreguin.

22 See United States v. Scott, 437 U.S. 82, 87 (1978).

23 Kaytso, 868 F.2d at 1021.

24 Id.
UNITED STATES V. MORAN-GARCIA 13

considered an acquittal and so is not shielded by the double

jeopardy clause.”25

The decision whether to apply the doctrine of collateral

estoppel, urged by the defense, is within the discretion of the

trial court, but retrial is not necessarily barred and

requirements of fundamental fairness ultimately control.26

Retrial was allowed in Kaytso even though venue was put to

the jury, and the government’s witness could not remember

the exact location where the crime occurred.27 Moran’s case

for collateral estoppel here is weaker than in Kaytso because

the factual question was never put to the jury, so retrial would

not upset a jury determination of a fact.

Accordingly, we vacate Moran’s conviction, and remand

with instructions for the district court to dismiss the

indictment without prejudice. The district court has

discretion with regard to collateral estoppel, in accord with

the guidance in Kaytso, if that is raised in a motion before it.

VACATED and REMANDED.

25 Id.

26 Id. at 1022.

27 Id. at 1021–22.