US v. Moran-Garcia, No. 19-50134 (7-23-20)(Kleinfeld w/Nguyen & Pauley). A venue win!  The defendant was caught in boat, with others, 6 miles off of San Diego. The city’s twinkling lights could be seen. He was charged with attempted illegal reentry. The Court denied the Rule 29 motion for failure to prove venue and denied a jury instruction because the Rule 29 decided the issue. Twice wrong.

First, the government argues venue existed 12 miles out to sea. This was wrong (“The government attorney gave bad counsel to the district court.”) The State’s County of San Diego extends “three English miles,” not twelve (int’l), and so the Southern District of California only extends to the border of San Diego County.

Second, the government argues that venue was a legal matter. It is not an element of the offense, but it is a jury question with constitutional dimensions. The government must prove it by a preponderance. The court erred in not giving the instruction.

Maybe the third time is a charm?  On appeal, the government raises harmlessness. Six miles out, with San Diego’s lights twinkling, where else could the boat have gone? Well, says the 9th, up the coast. It is not completely absolutely certain that the boat was headed for the SD Ca. One could argue, infer, and prove by a preponderance, but it is not harmless. The argument that venue is proved because it is where the defendant first appeared is colorable. However, the evidence was never presented to the jury.

The conviction is vacated and remanded with instructions to dismiss without prejudice. A retrial is not necessarily barred. The 9th does note that collateral estoppel is within the court’s discretion if raised.

Congrats to Doug Keller, Fed Defenders of San Diego, for the nice win. 

The decision is here:

https://cdn.ca9.uscourts.gov/datastore/opinions/2020/07/23/19-50134.pdf