United States v. Ezequiel Moran-Garcia (9th Cir. July 2020)

The Federal Docket

August 20, 2020

Venue/Jury Instruction – Venue must be proven by the government and is a question for the jury. The error in the failure to give the jury instruction is not harmless if there was no evidence to imply that venue was proven.

Ezequiel Moran-Garcia was convicted for attempting to enter the United States after having been deported under 8 U.S.C. § 1326(a) and (b) and for attempting to enter the United States other than at a place designated under 8 U.S.C. § 1325.

Moran-Garcia was apprehended six miles off the coast. Before trial, the government told the district court that the Southern District of California extended twelve miles into sea. When Moran-Garcia argued that it only extended three miles, the district court agreed with the government. The district court also held that venue was a legal question, not a question of fact for a jury.

On appeal after his conviction at trial, the Court vacated Moran-Garcia’s conviction and held that, even if venue is not an element of the offense, it “‘must still be proved by the government at trial” by a preponderance of the evidence, and is not a legal question for the district court to decide.

The Court also held that the harmless error test for failing to give a venue instruction is “whether the evidence, had it been viewed by a rational jury, could only have led to that conclusion.” The Court noted that although it is a colorable argument that venue can be proper in the district where the defendant is first brought under 18 U.S.C. § 3238, “[n]o witness testified to where Moran was first brought.” Therefore, there could not have been an inference that venue was proven and thus the error in the lack of venue instruction was not harmless.

The Court also held that under California law the Southern District of California extends only three miles into the Pacific Ocean.

Appeal from the Southern District of California

Opinion by Kleinfeld, joined by Nguyen and Pauley III (by designation from S.D. N.Y.)

Click here to read the opinion.

Tom Church - Tom is a trial and appellate lawyer focusing on criminal defense and civil trials. Tom is the author of "The Federal Docket" and is a contributor to Mercer Law Review's Annual Survey in the areas of federal sentencing guidelines and criminal law. Tom graduated with honors from the University of Georgia Law School where he served as a research assistant to the faculty in the areas of constitutional law and civil rights litigation. Read Tom's reviews on AVVO. Follow Tom on Linkedin.

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