Sunday, September 20, 2020

Case o' The Week: Qazi like fox - Qazi and Du Bo Challenges to the Indictment

Du Bo shot with pro se spin earns defense nice Rehaif win.  

United States v. Qazi, 2020 WL 5553323 (9th Cir. Sept. 17, 2020), decision available here.

Players: Decision by Judge Hunsaker, joined by Judge Wardlaw and visiting CJ Cook. Nice win for former CD Cal AFPD Michael Tanaka.

 Facts: Omar Qazi represented himself pro se against felon-in-possession charges. Id. at *1. He filed a pretrial motion seeking dismissal of the indictment, for (among other things) failure to state an element. Id. (He did not identify the missing element.) Id. That motion was denied, he went to trial, and was convicted. Id.

  While his appeal was pending, the Supreme Court decided Rehaif, where “the Supreme Court recognized for the first time that the defendant’s knowledge of his felon status is a required element under Section 922(g).” Id. at *2.

Issue(s): “In this circuit an indictment missing an essential element that is properly challenged before trial must be dismissed. United States v. Du Bo, 186 F.3d 1177, 1179 (9th Cir. 1999). There is no dispute that pro se defendant Omar Qazi’s indictment was missing a required element. The question is whether Qazi properly challenged his indictment pre-trial, thereby triggering the Du Bo rule.” Id. at *1 (emphasis in original).

Held:Following our well-established obligation to construe pro se filings liberally, we hold that Qazi did properly challenge his indictment, and we direct the district court to dismiss his indictment, as we must.Id.

 Of Note: Make a proper and timely challenge to deficient indictment in the Ninth, and you get automatic reversal on appeal (with no harmless error hurdles to clear). That rule conflicts with several other circuits, and has prompted some grumbling dissents here in the Ninth. Id. at *2 (reviewing Du Bos, dissents, and concurrences).

  Grizzled Apprendi vets will remember back in the early days of that decision, Du Bo presented a real defense conundrum: challenge a deficient indictment before trial, and the AUSA would just cure a missing element with a quick trip to the grand jury. Wait, however, to bring the indictment challenge at trial, after jeopardy had attached, and your motion would be rejected as untimely.

  Maybe our clients should have fired us, and filed pro se, broad Apprendi motions that complained of missing elements, but did not identify which element was not alleged? Id. at *4 (discussing the possibility that Qazi was in a better position as a pro se litigant than he would have been in had he been represented by counsel).

 How to Use: How specific does a Du Bo pretrial challenge to the indictment have to be? Good question, and one that many defense counsel have wrestled with. Here, Qazi complained the indictment failed to allege “all of the elements of a Federal Crime” – but didn’t specify that the missing element was his knowledge that he was a felon. Id. at *3. That was specific enough – for a pro se litigant. Id. at *4.

  If mulling a Du Bo challenge to a deficient indictment, read the Qazi discussion on specificity. The Qazi pro se challenge may not be quite specific enough for a motion made by counsel, but at least the opinion marks rough boundaries for this requirement.                                             

For Further Reading: Tributes have been pouring in all weekend, on the remarkable legacy of Justice Ruth Bader Ginsburg. Gender equality, choice and reproductive rights, and legendary dissents number among her many legal landmarks. See Ruth Bader Ginsburg’s biggest cases: Equal pay, Bush v. Gore and insider trading, available here.

  What was the Justice’s legacy in criminal law issues? One interesting area is the Sixth Amendment right of Confrontation. Justice Ginsburg famously penned the Bullcoming decision, on the Crawford ramifications of lab reports in criminal cases. See SCOTUS blog here 

 Justice Ginsburg’s unlikely pal, Justice Scalia, joined her in an exegesis of how prosecutors can still prove their cases, while honoring Confrontation Clause rights, in Part IV of Bullcoming. See decision here

 Will the Court’s Crawford coalition maintain a majority when both Justices Scalia and Ginsburg are replaced on SCOTUS? Much depends on the Senate, between now and January 3



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Steven Kalar, Federal Public Defender N.D. Cal. Website at



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Thursday, September 17, 2020

US v. Qazi, No. 18-10483 (9-17-20)(Hunsaker w/Cook & Wardlaw). The defendant, pro se, challenges the indictment charging him as a prohibited possessor of a firearm for failure to contain an essential element. The 9th agrees that under Rehaif v US, 139 S. Ct. 2191 (2019)(knowledge of felony status), the indictment omitted the knowledge requirement. Under circuit precedent, US v. Du Bo, 186 F.3d 1177 (9th Cir. 1999), the indictment must be dismissed as structural error. The 9th comments that the defendant, proceeding pro se, challenged the statute pre-Rehaif broadly for failing to state all the elements. If he had counsel, the challenge would likely not have occurred under precedent. Who knows? The pro se challenge was broad, and because it is pro se, needs to be liberally construed.

This opinion notes (n.1) that the 9th’s structural error Du Bo rule conflicts with other circuits, which employ a harmless analysis.

The decision is here:

Von Tobel v. Benedetti, No. 18-15892 (9-14-20)(Siler w/Bybee & R. Nelson). The 9th affirms denial of a petitioner’s claim involving juror misconduct.  Misconduct there was: the juror, before deliberations, conversed with a neighbor – a police officer – who said that the defendant wouldn’t be there if he hadn’t done something wrong. The state courts found this was misconduct, but that it was not egregious. The juror said he followed instructions, kept an open mind, and so forth. Since it was not egregious, the burden was on the petitioner to show probable prejudice. The petitioner could not meet the burden. In federal court, petitioner argued this was contrary to clearly established federal law. The 9th found there was no clearly established Supreme Court opinion that would either presume prejudice or that the burden of showing prejudice should not fall on the petitioner. Under AEDPA’s deferential standard, the Nevada’s Supreme Court’s decision was not contrary to federal law or an unreasonable application.

Tough loss for Kim Sandberg, Jonathan Kirshbaum, and Ryan Norwood, AFPDs, Nev. (Las Vegas).

The decision is here:

US v. Garcia, No. 19-10073 (9-10-20)(Wardlaw w/Siler & M. Smith). The 9th suppresses evidence. The police conducted a warrantless search of a home, handcuffed the defendant, took him outside, and then ran his record. The police then learned he was in SR. So, back into the house they went, searched it, and found meth. The police tried to justify the first search for supposedly safety of others. The 9th didn’t buy it and sent it back to see if attenuation worked. That is, did the fact that he was on SR make it justifiable? Again, no. The actions of the police, the flagrancy, and the acts all lead to suppression.

Congrats to AFPD Jamie Moore, CHU, Az FPD (Phoenix).

The decision is here:

US v. Herrera, No. 19-50181 (9-9-20)(Hunsaker w/Wardlaw & Cook). This opinion considers an issue of first impression: Is the State counted as a victim for the number of victims fraud enhancement? The answer is “yes,” so long as the loss was counted in the relevant conduct.

The defendant ran an unemployment scheme where he defrauded the State and Federal Government of millions. He opened companies, recruited participants, and then had them file for unemployment benefits which he took. He was informed on and the scheme, with a co-defendant, was exposed.

The 9th held that the State was a victim for the number of victims enhancement based on the text of the guidelines. The guidelines used the word “includes” in listing who could be considered victims. State entities or agencies were not listed. But the use of “includes” was not exhaustive. Guideline amendments and restitution statutes also lend support. Lastly, other circuits have concluded that a State can be a victim for the number of victims adjustment. The limiting feature is that the loss must be included in the relevant conduct.

The 9th held the Court misspoke when it said a 16-level adjustment for loss when all the calculations showed an 18 level and it was clear that was what was being discussed. The review was under plain error.

The 9th found the defendant supervised and directed another person. Thus, there was no error in applying a leader enhancement. 

The decision is here:

US v. Asuncion, No. 18-30130 (9-4-20)(Chhabria w/Fletcher & Rawlinson). This is a sad case, illustrating that timing can be everything. The 9th affirms a mandatory life sentence under 841(b)(1)(A) as the defendant was found to have two prior “felony drug sentences” under 802(44).  The sentences of the defendant’s priors were under a year (!) under a state (Wash) guideline system. The max though was 5 years. The state court had “broad open-ended discretion” in sentencing. This differs from the recent case, Valencia-Mendoza, 912 F.3d 1215 (9th Cir. 2019), where a guideline sentence for a drug offense was under a year but the court had sharply constricted ability to do anything but impose a guideline sentence. The defendant here was sentenced under a state guideline system that had subsequently been narrowed and required specific findings. Timing is everything.

Timing is also everything in the First Step Act. The defendant was sentenced prior to enactment in December 2018. If it was subsequent, under his record, with only one federal serious drug felony, he would “only” face a mandatory 15 years. The 9th holds that the defendant, who was sentenced in May 2018, is “ineligible for resentencing, a conclusion that follows inescapably from the statute’s text.” All the circuits that have considered this issue has come to the same conclusion: 1st, 3d, 6th, 7th, and DC; see also the 4th and 5th with interpreting identical language in another section.

The decision is here:

Sunday, September 13, 2020

Case o' The Week: Footnotes Matter - Garcia and Fourth Amendment Attenuation (Intervening Circumstances)

"Recent events have reminded us of the devastating consequences that can follow when armed officers take the residents of a home by surprise. See Darcy Costello & Tessa Duvall, Minute by Minute: What Happened the Night Louisville Police Fatally Shot Breonna Taylor, Louisville Courier J. (May 29, 2020), ." 

Ms. Breonna Taylor

United States v. Javier Garcia, 2020 WL 5417153, at *8 &n.6 (9th Cir. Sept. 10, 2020), decision available here.

 Players: Decision by Judge Wardlaw joined by Judges M. Smith and visiting Circuit Judge Siler.

  Big win for (former) ND Cal CJA Attorney Jamie Moore, in an appeal from a hard-fought district court case by ND CJA counsel Tom Ferrito.  

 Facts: Salinas cops saw a suspicious guy enter a building: they apprehended him outside minutes later. Id. at *2. Despite having already arrested their original suspect, the cops then did a “protective sweep” of the apartment. They dragged sleeping occupant Garcia outside, in cuffs. Id. 

  After learning Garcia’s name they discovered that he was on supervised release with a search condition. Id. A search of the apartment revealed meth, he was charged in federal court, and a San Jose D.J. refused to suppress. Id. 

  Garcia appealed and won in the Ninth: the case was remanded for findings on the second search. Id. at *3. 

  On remand, the district court again upheld the search, concluding that the search condition was an attenuating and intervening circumstance. Id. Garcia appealed again.

Issue(s): “The question before us today is whether, despite these facts, suppression of the evidence found in Garcia's home, and other evidence derived from that evidence, is not required because, under the attenuation doctrine, the officers’ discovery of the suspicionless search condition broke the causal chain between the Fourth Amendment violation and the discovery of the evidence.” Id. 

  “[T]he key question this case presents is whether the officers’ discretionary decision to conduct a full investigatory search of Garcia's home was significantly directed by information they learned during their initial unlawful entry. And because the Government bears the burden of showing attenuation . . . it was the responsibility of the Government to introduce evidence on this point.” Id. at *6.

Held: “[T]he Government did not present any evidence regarding the officers’ reasons for entering Garcia’s home the second time, much less evidence sufficient to show that this decision had nothing to do with what they saw inside the home minutes earlier, during their unconstitutional search.” Id. at *6 (emphasis in original).

  “The officers did not enter Garcia's home with blinders on. And the record shows that in the few minutes between the two searches, the officers’ motives for entering the home abruptly changed from non-investigatory to investigatory. Yet the Government offers nothing more than its say-so to explain this sudden shift. That is not enough to avoid suppression. Cf. United States v. Bocharnikov, 966 F.3d 1000, 1007 (9th Cir. 2020) (Chhabria, J., concurring) (“To rule in the government's favor on this appeal would have required us to bend over backwards, doing the government's work for it. Federal prosecutors should not need that kind of help from the courts, nor should they expect to receive it.”). In the absence of evidence showing that the officers’ decision to conduct the second search was untainted by what they saw during the initial unlawful entry, we conclude that the Government has not met its burden of showing that the discovery of the suspicionless search condition was a sufficient intervening circumstance.” Id. at *7.

  “We conclude that the evidence found in the search was not sufficiently attenuated from the constitutional violation.We therefore hold that the district court erred by denying Garcia's motion to suppress, and we reverse his conviction. Id. at *2.  

 Of Note: Armed officers storming a residence and taking sleeping residents by surprise – sound familiar? 

  In a most-notable footnote, Judge Wardlaw warns of the “devasting consequences” of this law enforcement approach, and refers us to a story about the homicide of Breonna Taylor. See id. at *8 & n.6.

 How to Use: This great opinion carefully distinguishes the Supreme Court’s Strieff decision. Particularly important is Judge Wardlaw’s refusal to equate supervision search conditions (probation, parole, supervised release) with the arrest warrant in Strieff, for the attenuation analysis. Id. at *5.

  An “attenuation” must read.

 For Further Reading: For an in-depth account on the tragic killing of Breonna Taylor, and a moving description of her life story, listen to the two-part NYT “Daily” podcast available here


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Steven Kalar, Federal Public Defender, N.D. Cal. Website at


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Sunday, September 06, 2020

Case o' The Week: If not found we can rely, reverse conviction and re-try! - Valencia-Lopez, FRE 702, Daubert, and gov't "expert" reliability

Pick a peck of pot and peppers . . . .


and try the case again.

 United States v. Valencia-Lopez, 2020 WL 4814139 (9th Cir. Aug. 19, 2020), decision available here.

Players: Decision by Judge Bennett, joined by Judge Hawkins. Dissent by Judge Owens. 

 Admirable win and very important FRE 702 victory for D. Arizona AFPD J. Ryan Moore.

Facts: Valencia-Lopez was stopped at the border when he drove a commercial truck into the US. Id. at *1. Hidden among the cargo of bell peppers was 6,000 kilos of marijuana. Id. Valencia-Lopez explained that he was seized at gunpoint in Mexico, told to drive (re-loaded) truck across the border, and that he and his family would be killed if he did not comply. Id. at *2. 

  The government noticed ICE “Expert” Hall for trial, who was provisionally allowed over the defense’s pretrial objection. Id. 

  At trial, the district court denied the defense’s renewed objection, and refused defense voire dire. Id. The court made no reliability findings. ICE “Expert” Hall testified that the likelihood that a drug trafficking organization would trust a large load to a threatened driver was “[a]lmost nil, almost none.” Id. 

  Valenicia-Lopez also testified, and was convicted. Id. at *3.

 Issue(s): “Valencia-Lopez argues that the district court abused its discretion by admitting Agent Hall's testimony without adequately performing its gatekeeping role under Daubert and [FRE] 702. . . . Valencia-Lopez does not challenge the district court’s finding that Agent Hall's testimony was relevant. We thus look only to whether the district court appropriately determined that the testimony was reliable.” Id.

 Held: “It did not.” Id. at *4.

  “The issue is not whether Agent Hall had knowledge and experience sufficient to allow him to testify as an expert on the modus operandi of drug cartels. He did. Nor is the issue whether he had sufficient ‘background for his opinions.’ Rather, the issue is whether he provided a reliable basis for his opinion that the likelihood of drug cartels using coerced couriers is ‘[a]lmost nil, almost none.’ As explained above, he did not.” Id. at *6.

  “We . . . vacate Valencia-Lopez's convictions and remand for a new trial.” Id. at *8.

 Of Note: Valencia-Lopez is an extraordinary “experts” decision. The opinion confirms what we’ve been shouting since the Daubert Trilogy hit: “qualifications ain’t reliability.” 

  In fact, Judge Bennett goes so far as to emphasize that this core reliability finding is arguably more important when dealing with cop experts, such as this case: “Daubert and Kumho Tire may be harder to apply when the expert testimony is ‘experience-based’ rather than ‘science-based.’ But any such difficulty cannot simply lead to a ‘that goes to weight, not admissibility’ default, as here. Indeed, we see a strong argument that reliability becomes more, not less, important when the ‘experience based’ expert opinion is perhaps not subject to routine testing, error rate, or peer review type analysis, like science-based expert testimony. The Supreme Court has made it abundantly clear that reliability is the lynchpin—the flexibility afforded to the gatekeeper goes to how to determine reliability, not whether to determine reliability.” Id. at *4.

  Valencia-Lopez is a thoughtful, well-supported opinion, and one of the most important FRE 702 decisions in years: a must read.

 How to Use: Judge Bennett gives a big thumbs-up to Daubert voir dire at trial. Id. at *5 & n.6. The Ninth doesn’t (yet) hold whether a district court must hold an evidentiary hearing or permit voir dire. Id. The Court does, however, give a hearty nod of approval to trial voir dire as “a recommended method for the district court to conduct a reliability determination.” Id. 

  D.J.’s routinely dodge pretrial Daubert pretrial evidentiary hearings or trial voir dire of government “experts.” Use Valencia-Lopez to advocate for these critical gatekeeping procedures.                                           

For Further Reading: It was a week of very different memos, in Washington D.C.

Last week, thirty-two black, D.C. AUSAs signed a ten-page memo sent to U.S. Attorney Michael Sherwin, seeking changes to increase fairness and minimize nonlegal influences and biases. See Washington Post Article here

By contrast, a very different OMB memo last week conveys President Trump’s direction to federal agencies to “cease and desist” funding for certain types of race and diversity training. See ABC news article here. 


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Wednesday, September 02, 2020

US v. Moalin, No. 13-50572 (9-2-20)(Berzon w/Nguyen & Zouhary). In a FISA metadata case, the 9th affirmed the convictions against 4th Amendment challenges. The case involved collection of metadata from US citizens and others derived from foreign intelligence surveillance. The 9th concludes that the govt may have violated the 4th Amendment and did violate FISA when it collected information from millions of Americans. However, under the facts of this case, where the defendants were made aware, suppression was not warranted. The 9th emphasizes that notice must be given. For those with FISA matters, this case provides an overview, analytical approach, and requirements.

Numerous amici weighed in, including the FPDs, NACDL, Media and Privacy groups.

The decision is here:

Sunday, August 30, 2020

Case o' The Week: Ninth Axes Conviction after Juror Dismissed - Litwin, Sixth Amendment and Dismissals of Deliberating Jurors

 Axes to grind . . .


on Ninth’s mind. United States v. Litwin, 2020 WL 5050383 (9th Cir. Aug. 27, 2020), decision available here.

 Players: Decision by Judge Bress, joined by Judges Gould and Christen.

 Facts: Medical Assistant Litwin and his co-D, Dr. Wetselaar were charged with illegally distributing prescription medicine. Id. at *2. At trial Juror 5 was selected, but then explained her employer wouldn’t pay her salary while she served. She was left on anyway. Id. at *2-*4.

  The trial took 35 trial days. Id. at *5.

  Three hours into deliberations, a juror complained that Juror 5 “will not change her mind” and “will not deliberate.” Id. at *5. The district judge opined that Juror 5 “had an axe to grind” and was refusing to deliberate in retaliation for being left on the jury. Id. at *7.

  There followed an exchange where Juror 5 agreed to review the evidence, listen to the other jurors, and come up with a verdict. Id. at *9. Despite those assurances, and over defense objection, Juror 5 was excused. Id. at *9-*10.

  The next morning an alternate came in: a guilty verdict followed that afternoon. Id. at *10.

 Issue(s): “We confront in this case the question whether a district court erred in dismissing a juror, hours into jury deliberations following a lengthy criminal trial. Dismissing a juror based on her views of the strength of the government's case is an intrusion on the jury's role and violates the Sixth Amendment. But though the decision must be made carefully, there are various reasons why a district court may properly, and in its discretion, remove a juror from service once the jury has begun deliberating. Determining whether such a dismissal was a violation of the defendant's constitutional right to a unanimous jury verdict, or instead a permissible response to a juror's recalcitrance, bias, or incapacity, is a sensitive task. Because district courts observe jurors first-hand, they are accorded considerable deference in their handling of these issues.” Id. at *1.

 Held: Under the unique facts before us, however, and notwithstanding the substantial resources expended in this case, we are constrained to conclude that the district court erred in dismissing a juror. The district court's determination that the juror harbored ‘malice toward the judicial process’ is not supported and cannot provide the basis for the juror's dismissal. And while the district court also cited the juror's alleged refusal to deliberate, based on the record in this case we are firmly convinced there was a reasonable possibility that the juror's dismissal stemmed from her views on the strength of the government's prosecution.” Id.

 Of Note: As the appeal proceeded through argument, the Ninth sought supplemental briefing from the parties on the dismissal of Juror 5. Id. at *10. In response, the district court filed a minute order supplementing the record with emails from Juror 5. Id. at *10. The district court also offered the Ninth an (unsolicited) opinion about the “overwhelming weight of the evidence supporting a finding of guilt.” Id. at *10. Finally, the DJ offered to provide declarations from court staff about Juror 5’s demeanor. Id.

  This curious minute order, and the court’s offer of new declarations, earned a cool reception in the Ninth. Id. at *15.

  An odd twist in an odd case.

 How to Use: Is the improper dismissal of a juror during deliberations structural error (leading to automatic reversal), or is it reviewed for harmless error? Oddly enough, this standard-of-review has not yet been resolved. Id. at *19. Judge Bress avoids deciding it here. Even adopting the government’s “harmless error” approach, the Ninth concludes that any error was not harmless. Id. at *20.

  The standard of review used could well determine the outcome in a future “excused juror” appeal – beware of this unresolved S.O.R. issue.

 For Further Reading: Litwin’s co-defendant, Dr. Wetselaar, was a 93-year old WWI veteran -- one of the oldest federal defendants ever sentenced.  See Review Las Vegas Review-Journal article here.  Id. He suffered from prostrate cancer, chronic renal failure, heart valve disorders, and brain atrophy. Id. 

  He was sentenced to ten years custody. Id.

Dr. Wetselaar

  Three years ago the Ninth reversed the district court’s refusal to grant bail pending appeal. See blog here

  Dr. Wetselaar passed away last April: the Ninth ordered the district court to vacate the judgment and dismiss the indictment as to this defendant. 2020 WL 5050383, at *11 & n.3.



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Thursday, August 27, 2020

1. US v. Rodriguez-Gamboa, No. 19-50014 (Hurwitz w/Wardlaw & Bataillon). In a “categorical approach” opinion, the 9th considers whether California’s statute prohibiting sale of both “geometric and optical isomers of methamphetamine is not a categorical match with the federal statute that prohibits only “optical isomers.” Is the state statute overbroad? No, decides the 9th, because there is no “realistic possibility” – even theoretical – that any defendant could face prosecution for geometric isomers. Such isomers do not exist. The 9th found that the legislative text, with this impossibility, is not a true legislative choice. The dismissal of the indictment is reversed and the case remanded.

David Menninger, Deputy Fed Public Defender, Cal C (L.A.), learned a lot of chemistry in a spirited fight on this issue.

The decision is here:

2.  US v. Litwin, No. 17-10429 (8-27-20)(Bress w/Gould & Christen). Fraud and conspiracy convictions, resulting from a lengthy fraud trial, are reversed and remanded due to the improper dismissal of a juror during deliberations. The district court dismissed Juror #5 (a paralegal who had practiced as a defense lawyer in the Philippines) because of malice towards the judicial system and a refusal to deliberate. This occurred 3 hours into deliberations after a 36-day trial. The record did not support such animosity, even if there was anger at the court making her sit as a juror; and the evidence as to refusal also had evidence of confusion over jury instructions, which was not a decision not to discuss the case. The 9th was sympathetic with the court, but concluded that the removal was too soon, and without a sufficient justification or record. The error was structural.

The decision is here:

US v. Hussain, No. 19-10168 (8-26-20)(Bress w/R. Nelson & Gwin). It was a con in the boardroom. The scheme, involving complex fraudulent transactions, deception, misleading statements, and hoodwinking – conned Hewlitt-Packard into buying a startup, Autonomy Corporation, a British company, at a grossly inflated value. It worked – for a while, and until the books were carefully examined.  Because of this elaborate accounting scheme, HP got an overvalued company. Meanwhile, the start up’s CFO pocketed a cool $16 million. Alas, he was eventually convicted of wire fraud, conspiracy, and securities fraud in a district court in Cal N.

On appeal, defendant argues the wire fraud statute is an impermissible extraterritorial application of US law to foreign conduct. The 9th rejects this argument and affirms the convictions. Using the test of Morrison, 561 US 247 (2010), the first step is whether the statute, 1343, clearly states it applies extraterritorially. It does not. If it does not, then does the statute involve a domestic application by looking at the “focus.” Did enough sufficient conduct take place in the US that is the object of the statute. In an issue of first impression in the circuit, the 9th concludes the main focus of the statute is misuse of the wires to defraud. This aligns with the analysis of other circuits.  As for this case, there was sufficient evidence produced to support the convictions as wires were extensively used.

The decision is here: