United States v. Moran-Garcia, No. 19-50134 (9th Cir. 2020)
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Moran-Garcia, caught off the California coast in a disguised boat, was indicted for attempting to enter the United States after having been deported, 8 U.S.C. 1326(a) and (b), and for attempting to enter other than at a place designated, 8 U.S.C. 1325. The indictment alleged that these offenses occurred “within the Southern District of California.” The evidence 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. Defense counsel moved for a judgment of acquittal based on insufficient evidence of venue, arguing that the Southern District extended only three miles out to sea. The court denied the motion and ruled that no jury instruction was appropriate because venue was a legal question that it had already decided.
The Ninth Circuit vacated, finding that venue was not established. The Southern District of California as defined by Congress comprises the counties of (landlocked) Imperial and San Diego. The territorial sea of the United States extends to 12 nautical miles, but 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.” Venue is a question of fact that the government must prove by a preponderance of the evidence.” It is a jury question.
Court Description: 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 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.
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