F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

E Z E Q U I E L F R

A N C I S C O M O R

A N

G A R C I A , Defendant-Appellant. N o. 19-50134

D.C. No. 3:18-cr-05210- B AS-1

OPI NI ON

A ppeal from the United States District Court for the Southern District of California Cy nthia A. B a shant, District J u dg e, Presiding

Arg ued and Submitted March 6, 2020 Pasadena, California

F iled J uly 23, 2020

B efore: Andrew J . Kleinfeld and J a cqueline H. Ng uy en, Circuit J udg es, and W illiam H. Pauley I I I
, * District J udg e.
Opinion by

J udg e Kleinfeld

* T h e Ho n o rab le William H. Pau ley III, Un ited States District J u dg e f o r th e So u th ern District o f New Yo rk , sittin g b y

d esig n atio n

.U N I T E D S T A T E S V

. M O R A N -G A R C I A 2

SUMMARY * *

Crim inal Law

B e cause venue was n ot established, the panel vacated a

c o n v i c tion f

or attempting to enter the United States after having been d eported and attempting to enter the U n i t e d States other than at a place desig n a t ed, and remanded for dismissal of the indictment without prejudice.

The d e f endant was a mong passeng ers caug ht in a disg uised boat six miles off the Californi a c oast. The panel
wrote that the location of the putative offense w as not within the Southern D istrict of California, which comprises I mperial County (landlocked) and San D ieg o C o u nty , whose western border, as defined by California law, ex tends three miles into the Pac i f i c O c ean. Observing that proper venue is a constitutional rig ht and a question of fact that the g overnment must prove by a preponderance of the evidence, th e p a nel
wrote that the district court could not properl y decide venue itself and should have submitted the issue to the jury

.

The panel rejected the g overn m ent’s harmlessness
arg ument based on a new theory of venue on a p p e a l—that

venue w as proper in the Southern District of California under 18 U.S.C. § 3238, which provides that the trial of a n offense beg un or c o m m i t ted outside any judicial district shall be in the district in which the offender is arrested or first brought

. The panel ex p lained that when, a s here, a court has failed to g ive a venue instruction to the jury
, that error will be viewed

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co urt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. M O R A N -G A R C I A 3

as harmless if the evidence viewed r a tionally by a jury could only support a conclusion that venue ex isted. Observing that it is not certain and obvious that the ag ents w o u ld have broug ht their arrestees to the Southern District of California, the panel could not say t h a t no r ational juror could have

c oncluded otherwise, considering that the g overnment h a d t h e burden of proof.

B e cause double jeopardy does not apply in the same way to a failure to p rove venue as it does to a fai l u r e t o prove an element o f an offense, the panel remanded with instructions
to dismiss the indictment without prejudice. The panel wrote that the district court has discretio n w ith reg ard to collateral estoppel if that is raised in a motion before it.

COUNSEL

Doug Keller ( arg ued), F e deral Defenders of San Dieg o I n c., San Dieg o, California, for Defendant-Appellant.

Z a chary J

. Howe (arg

ued), Assistant U nited States Attorney ; Daniel E. Z ipp, Chief, Appellate Section, Criminal D ivision; Robert S. B rewer J r., United State s A t t orney ; United States Attorney ’ s O ffice, San D ieg o, California; for PlaintiffAppellee.U N I T E D S T A T E S V

. M O R A N -G A R C I A 4

OP INION

KL EI N F EL D , Senior Circuit J udg e:

W e vacate the conviction a nd remand for dismissal of the indictment without prejudice because venue w as not established.

Ez equiel F rancisco Mor an-Garcia was among the
passeng ers caug ht late at n ig ht s i x m i l es off the California
coast in a small, disg uised boat. He was ind i c t e d f o r attempt i n g t o 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 desig nated, in violation of 8 U.S.C. § 1325. The indictment alleg ed that these offenses had occurred “within the Southern District of California.”

B e fore trial, the g o vernment arg ued that the district court should take judicial notice that the So u t h e r n District o f California ex tended twelve miles out to sea and so instruct the ju ry

. The evidence at trial established that Moran was apprehended six miles off the coast, within sig ht of the lig hts of San Dieg o

. San Dieg o is w i t h i n the Southern D istrict o f California. At the conclusion of the g overnment’s evidence, defense counsel moved under F ederal R ule of Criminal Procedure 29 for a judg ment of acquittal based on insufficient evidence o f venue. Defense counsel a r g ued that the Southern District ex tended only three miles out to sea , not twelve, so the g o vernment had f

ailed to prove that th e offense was commit t e d w ithin the Southern District. The district court denied the motion, a ccepting the g o vernment’s arg ument that th e location where the boat was captured was w ithin the Southern District. The court t hen ruled that no juryU N I T E D S T A T E S V

. M O R A N -G A R C I A 5

i n s t ruction on venue was appropriate b ecause, in its v iew
, venue was not a question of fact f o r t h e jury but instead a leg al question that it h ad already decided by d eny ing defense counsel’s Rule 29 motion.

The g overnment attorney g ave bad counsel to the district
court. D efense cou nsel was correct, and the court e rred b y taking the question from the jury

. The So u thern District o f California as defined by Cong ress “ comprises the counties o f I mperial and San Dieg o .” 1 I mperial County is landlocked, so only San Dieg o County

matters to this case. “The territorial

sea of the United States

. . . ex tends to 12 nautical miles,” 2 but that is not true o f t h e S o u t hern District of California. California l a w defines the western border of San Dieg o County as e x tending “ to a point three Eng lish miles [ into the] Pacific O cean.” 3 Thus it is bey ond debate that the location o f the p utative offense w as within the territorial waters o f the United States but was not within the S o u t hern District o f California.

Controlling circuit law establishes that, althoug h venue is
not an element of the offense, ne v e r t h eless “it must still be proved by the g overnment at trial.” 4 “Venue is a q uestion o f fact that the g overnment must prove by a pr eponderance o f

1 2 8 U.S.C. § 8 4 (d ).

2 P ro clam atio n

No . 5 9 2 8 , 5 4 Fed . Reg . 7 77 (Dec. 2 7 , 1 98 8).

3 Cal. Go v ’ t

Co d e § 2 3 1 3 7

.

4 Un ited S t

a tes v. Jen sen , 9 3 F.3 d 6 6 7
, 6 6 9 n .2 (9 th C ir. 1 9 9 6 ) (citin g Un ited S ta tes v. Ka

ytso , 8 6 8 F.2 d 1 0 2 0 , 1 0 21 (9 th Cir. 1 9 8 8 )).U N I T E D S T A T E S V

. M O R A N -G A R C I A 6

the evidence.” 5 I t is a jury q uestion. “[ N] ormally it is not for the c ourt to d e t ermine venue” and “it is error to n ot g ive a

r e q u e sted instruction on v enue.” 6 V enue is “part of t h e bedrock o f our federal sy stem,” 7 and proper venu e is a “constitutional rig ht,” “ not a mere technicality .” 8 The district
court therefore c ould not properly decide venue itse l f and should have submitted the issue to the jury

. The district court could not properly take judicial notice that the location where the boat w as captured fell within the Southern Di s trict o f California, since it did not.

The g overnment arg ues a new theory of venue on appeal,

one it did not urg e at trial. I ts n e w a r gu m e n t is that venue

was proper in the Southern District o f California under 18 U.S.C. § 3238, which provides that the trial of a n offense beg un or committed outside any judicial district “shall be in the district in which the offender

. . . is arres t e d o r is first brought .” 9 The g overnment a rg u es that a rational juror could

5 Un ited S ta tes v

. Lu ka sh o v , 6 9 4 F.3 d 1 1 0 7
, 1 1 2 0 (9 th Cir. 20 1 2) (citin g Un i ted

S ta tes v. Ca sch , 4 4 8 F.3 d 1 1 1 5 , 1 1 1 7 (9 th Cir. 2 0 06 )).

6 Lu ka sh o v , 6 9 4 F.3 d at 1 1 1 2 (citin g Ca sch , 4 4 8 F.3 d at 1 1 1 7 ).

7 Ca sch , 4 48 F.3 d at 1 1 1 7

.

8 Lu ka sh o v , 6 9 4 F.3 d at 1 1 1 9 ; see also U.S. C ONST

. art. III, § 2
, cl. 3

.

9 1 8 U.S.C. § 3 23 8 (em

p h asis ad d ed ). 1 8 U .S.C. § 3 2 3 8 read s in f u l l :

T h e trial o f

all o f f en ses b eg un

o r co m m itted u p on th e h ig h seas, or elsew

h ere o u t o f th e j urisd ictio n o f an y p articu lar S tate o r d is trict, s h all b e in th e d istrict in

w h ich th e o f

f en d er, o r an y o n e o f tw o o r m o r e j o i n t

o f f en d e r s , is arrested o r is f irst b ro u g h t; b u t if su ch

o f f en d er o r o f

f en d ers are n ot so arrested o r b ro u g h t in toU N I T E D S T A T E S V

. M O R A N -G A R C I A 7

have fo und it more likely than not that Moran was first broug ht to the Southern District o f California. Therefore, the
g overnment claims, the errors of taking v enue away from the jury and deciding the i s s u e on an erroneous theory were harmless. This arg ument i s colorable because, as we have held, error in taking v e n u e a wa y from the jury
, thoug h o f “constitutional magn i t u d e,

. . . is not structural,” and is “consequently

susceptible of harmless error analy sis.” 1 0

The g overnment w ould thus have us apply the usual test for insufficiency of eviden ce: whether “ any rational juror” could have concluded that Moran was “first bro u gh t ” to the Southern Distr i c t of California. 1 1 This would be the correct test if the jury had concluded that venue was p r oper, b ut it is the wrong test f

or harmless error in this case w here the question was not put to the jury and the jury made no determination.

“[ W ] hen a court has failed to g ive a venue instruction to the jury
, that error w ill be v iewed as harmless if the evidence viewed rationally by a jury c ould on l y s u p port a conclusion that venue ex isted.” 1 2 T hus, the test for harmless e rror is not

an y d istrict, an in d ictm en t o r in f o rm atio n m ay b e f iled in th e d istric t o f t h e last k n o w n resid en ce o f th e

o f f en d er o r o f an y o n e o f tw o o r m o re j o in t o f f en d ers,

o r if n o s u ch resid en ce is k n ow n th e in d ictm en t or in f o rm atio n m ay b e f iled inth e District o f

Co lu m b ia.

10 Ca sch , 4 4 8 F.3 d at 1 1 1 7

.

11 Un i ted S t

a tes v. Nevils
, 59 8 F .3 d 1 15 8
, 1 1 6 6 (9 th Cir. 2 01 0 ) (en b an c).

12 Lu ka sh o v , 6 9 4 F.3 d at 1 1 2 0.U N I T E D S T A T E S V

. M O R A N -G A R C I A 8

whether “ any rational juror” could have concluded that Moran w a s first broug ht to the Southern District o f California, but rather w hether 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 o f the evidence test applic a b l e where a jury has made a determination: I nstead of asking whether a rationa l j uror could have reached the conclusion, we ask whether a rational juror could have rejected the u rg ed conclusion. Apply ing the
correct test, the g overnment h as not established harmlessness of the error.

Sometimes “proof of venue may b e so clear that failure to instru ct o n the issue is not reversible error.” 1 3 I n this c ase, thoug h, t h e p roof was not so clear. No witness testified to where Moran was f

irst broug ht. The question was not asked. Government testimony established o n ly that the boat was apprehended six miles offshore within sig h t of the l i ghts o f San Dieg o, a

nd that the g overnment’s marine interdiction unit
ag ent, who testified to the capture, was based in San Dieg o.

Ve n u e , l ike most facts, c an be proved as effectively b y circums t a ntial evidence as by direct evidence. 1 4 The
g overnment arg u es that this case is like Un i t e d States v

. Trenary
, where we held th e jury could infer that the defendants passed throug h the Southern D istrict of California based on their drive from N ewport B each, California, to

13 Ca sch
, 4 4 8 F.3 d at 1 1 1 8 (q u o t in g Un i ted S ta tes v. Ma rtin ez , 9 0 1 F.2 d 3 7 4 , 3 76 (4 th

Cir. 1 9 9 0 )).

14 Un ited S ta tes v. Po well , 4 9 8 F.2 d 8 90 , 8 9 1 (9 th Cir. 1 9 7 4 ).U N I T E D S T A T E S V

. M O R A N -G A R C I A 9

Punta B andera, Mex ic o

. 1 5 B ut this analog y is poor. I n Trenary
, the smug g lers driving from Newport B each—on the
coast in the Central District of California

— t o Punta B andera—on the B aja California c oast southw e s t o f Tijuana—would almost certainly have passed throug h the Southern District of California. 1 6 B ut in the case before us, it is nowhere n ear so c e rtain and obvious that the ag ents would have b ro ug h t their arrestees to the Southern District o f California. Thoug h a rational juror c o u l d h ave so inferred,

we cannot say that n o rationa l j uror could have concluded otherwise, considering that the g overnment had the burden o f proof.

Had they been instructed on venue, the jurors could have rationally concluded that, since n o ag ent was asked where M o ran was first broug h t, and it was within the powe r o f t h e prosecutor to ask, that the ag e nts did not know. J urors mig ht h a v e rationally inferred from the absence of easily available evidence, as jurors often do, that if the g overnment did not present evidence that Moran was first broug ht to San Dieg o, and had the burden of proving it, he probably was not broug ht there. The evidence demonstrated that the ag ents patrolled from Sa n D ieg o all the way north to San F rancisco. The
ag ents did not testify that they stopped p atrolling as soon a s they caug ht an offender to b ring h i m o r her in, so a juror mig ht have inferred that the ag ents likely continued their patrol north, at least until their boat was too full to c ontinue.

The g overnment urg es that w e r each a contrary conclusion based on two d ocuments that were not introduced

15 4 73 F.2 d 6 8 0 , 6 8 1

– 8 2 (9 t h Cir. 1 9 7 3 ) (p er cu riam ).

16 Id

. at 6 8 2

.U N I T E D S T A T E S V

. M O R A N -G A R C I A 10

at trial. T his arg ument is h ard to und e r stand, since rational jurors could not have drawn an inference from evidence never presented to them. No r are the documents much help. The
g overnment say s that Moran neither does nor c ould raise any actual doubt as to venue, p e r h a p s sug g esting that Moran could not have proved that he was not first broug ht into the Southern District

. B ut this is irrelevant, since the burden o f proof was and is on the prosecution. The document s a r e o f limited force reg ardless.

One is the presentence report, which did not ex ist until after the trial a

nd was under seal. J urors never see these. The presentence report say s that Moran and the other illeg a l a liens
caug ht “were turned over ” t o border-protection ag ents at Point L oma Naval B a se in San Dieg o. B ut the p robation officer who wrote the report had no p e r sonal knowledg e o f this f act, and therefore must have been relying o n what the prosecutors or ag ents told him, or assumed it, since this fact was of no importance to the sentencing recommendation.

The other document is an internal memorandum from o ne interdiction ag ent in the ag ency t o a n o ther say ing that the aliens on the boat “were transported to U.S. Naval B ase Point L oma [ in San Dieg o] for further inspection” and then “transported by U.S. B ord e r P atrol Ag ents to the San Clemente B order Patrol Station for process i ng ” a nd “arrested” at the dock in San Clemente. This document was

su b m i t t ed during motion practice but not at trial. No juror could have i n f

e r r e d any thing from it, never h aving seen it. San Clemente, where Moran was arrested, is in the C e n t r al District of California, not the Southern District of California. Since the statute say s venue “shall be in the district in whichU N I T E D S T A T E S V

. M O R A N -G A R C I A 11

the offende r

. . . is arrested o r is f irst broug ht,” 1 7 had jurors

seen this document, it mig ht have added to their uncertainty

. Neither they nor we, from what e vidence was pre sented at trial—and even what w as n ot p re s e nted at trial but has been put before us—would know from the record why Moran was arrested in the Central District o f California rather than in the Southern District.

Venue is not an e lement of the crime. 1 8 Unlike an

e l e ment, it need not be p r oved bey ond a reasonable doubt

. 1 9 B ut venue does need to be put to the jury , and proved by the
g overnment, albeit only by a preponderance of the evidence. 2 0 Neither was done here, and the evidence viewed r ationally b y

a jury would not necessa r i l y s upport the conclusion that

venue lay in the Southern District of California. The e rrors, not being harmless u nder the applicable standard, require that Moran’s conviction be vacated.

The parties ag ree that the c ase should be dismissed upon remand if w e do not deem the e rror to h ave been harmless. They differ on whether dismissal shou l d be with or without
pr e j u d ice. Citing Kaytso
, we noted in United States v

. Ruelas- A r reguin that in the absence of a request by the

17 1 8 U.S.C. § 3 2 3 8 (em

p h asis ad d ed ).

18 Jen sen , 9 3 F.3 d at 6 6 9 n .2

.

19 Lu ka sh o v , 6 9 4 F.3 d at 1 1 2 0.

20 Id

.U N I T E D S T A T E S V

. M O R A N -G A R C I A 12

defendant f

or transfer to a proper v enue, the indictment should be dismissed without prejudice. 2 1

Generally
, u nder the D oubl e J eopardy Clause, the
g overnment does not g et a second trial to prove what it failed
to prove by sufficient evidence in the first trial. 2 2 B ut double jeopardy does not apply in the same way to a failure to prove

venue a s it does to a failure to prove a n element of an offense. Unlike the ty

pical reversal for sufficiency of the evidence, the missing e vidence h ere did not g o t o g uilt or innocence; that is, it had nothing to do with whether the defendant did or did
not do the c riminal acts alleg ed in the indictment. W e held in U n ited States v. Kaytso that double jeopardy d oes not bar a convicti on where the defendant was re-indicted a fter dismissal of the first indictment based on the g overnm e n t ’s failure to prove venue in the first trial. 2 3 The reason was that “[ w] hile venue presents a q u estion of fact and must be proved by the g overnment, it is not an essential element of the offense,” and “failure to establish venue does not g o to g u ilt

or innocence.” 2 4 Dismissal of the first indictment “cannot be

21 Un ited S ta tes v. Ru ela s-Arreg u in
, 2 1 9 F.3 d 1 0 5 6
, 10 6 0 n .1 (9 th Cir. 2 0 0 0 )

. O u r atten tio n h as also been d raw n t o Un ited S ta tes v. Lo zo ya , 9 2 0 F.3 d 1 2 3 1 (9 th

Cir. 2 0 19 ), b u t th at case h as b een tak en en b an c an d h as n o ef f ect on th is d ecisio n

. No r co u ld it h av e an ef f ect, sin ce th e case d o es n o t m o d i f y th e ru le o f Ka

ytso an d Ru ela s-Arreg u i n

.

22 S ee Un ited S ta tes v. S

co tt , 4 3 7 U.S. 8 2 , 8 7 (1 9 7 8 ).

23 Ka ytso , 8 6 8 F.2 d at 1 0 21

.

24 Id

.U N I T E D S T A T E S V

. M O R A N -G A R C I A 13

considered an acq u i t t a l a

nd so is not shielded by the double jeopardy clause.” 2 5

The decision whether to apply the doctrine of coll ateral estoppel, urg ed by the defense, is within the discretion of the trial cour t , b ut retrial is not necessarily barred a nd requirements o f fundamental fairness ultimately control. 2 6 Retrial was allowed in Kaytso even thoug h venue was put to the jury
, and the g overnment ’ s witness c ould not remember the ex act location where the crime occurred. 2 7 Moran’s case for c ollateral estoppel h ere is weaker than in Kaytso because the factual question was never p ut to the jury
, so retrial would not upset a jury

determination of a fact.

According ly
, we vacate Moran’s conviction, and remand with instructions for the d i s t r ict c o u rt to dismiss the indictment without prejudice. T he d i strict court has d i s c r e tion with reg ard to collateral estoppel, in accord with the g uidance in Kaytso
, if that is raised in a motion before it.

VACATED and REMANDED

.

25 Id

.

26 Id

. at 1 0 2 2

.

27 Id

. at 1 0 2 1

– 2 2

.