United States v. Ezequiel Moran-Garcia, 19-50134

Background

Defendant Ezequiel Moran-Garcia was caught in a disguised boat about six miles off the California coast and indicted under 8 U.S.C. §§ 1326 and 1325 for offenses alleged to have occurred "within the Southern District of California."
Government asked the district court to take judicial notice that the Southern District extended twelve nautical miles seaward; defense argued the district only extends three miles under California law.
At the close of the government’s case, defense moved under Rule 29 for acquittal on venue grounds; the district court denied the motion, decided venue as a legal question itself, and declined to give a jury instruction on venue.
At trial the government introduced no testimony establishing where Moran was first brought after capture; evidence only showed capture six miles offshore in sight of San Diego lights and that interdiction agents were based in San Diego.
On appeal the government advanced a new § 3238 theory (venue where offender was arrested or first brought) and argued the district-court venue ruling was harmless; the Ninth Circuit held the venue issue was improperly removed from the jury, the harmlessness showing failed, vacated the conviction, and remanded with instructions to dismiss the indictment without prejudice.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether venue was established in the Southern District of California	Venue was within the Southern District because Moran was captured within sight of San Diego and the court could take judicial notice that the district extended offshore	Venue was not proven: California defines San Diego County’s western boundary as 3 miles out, so capture at 6 miles was outside the Southern District	Venue was not proven; capture location lay outside the Southern District as defined by state law, and the government failed to prove venue to the jury
Whether the district court properly decided venue as a legal question (instead of submitting to jury)	Court acted properly in resolving venue and denying Rule 29	Venue is a factual question that must be proved by the government to a jury by a preponderance; removing it from jury was error	Error: venue is a jury question and the court improperly took it away from the jury and took judicial notice incorrectly
Whether the district-court error was harmless under § 3238 (first brought/ arrested)	On appeal, argued a rational juror could have found Moran was first brought to the Southern District, so the error was harmless	Government failed to present any trial evidence about where Moran was first brought; absent such evidence, harmlessness cannot be assumed	Harmlessness not established: when venue instruction is omitted, reversal is required unless the evidence could only rationally support venue — here it could not
Whether dismissal should be with or without prejudice (double jeopardy / collateral estoppel)	Government implicitly argued retrial should be allowed	Defendant sought dismissal with prejudice and collateral estoppel	Dismissal ordered without prejudice; double jeopardy does not bar reprosecution for venue failure, and collateral estoppel is left to district court discretion

Key Cases Cited

United States v. Kaytso, 868 F.2d 1020 (9th Cir. 1988) (failure to prove venue does not bar reindictment; double jeopardy not an acquittal)
United States v. Lukashov, 694 F.3d 1107 (9th Cir. 2012) (venue is a jury question and omission may be subject to harmless-error analysis)
United States v. Casch, 448 F.3d 1115 (9th Cir. 2006) (venue is a constitutional right and not a mere technicality)
United States v. Jensen, 93 F.3d 667 (9th Cir. 1996) (venue must be proved by the government though it is not an element)
United States v. Ruelas-Arreguin, 219 F.3d 1056 (9th Cir. 2000) (dismissal without prejudice where defendant did not request transfer to proper venue)
United States v. Trenary, 473 F.2d 680 (9th Cir. 1973) (circumstantial evidence can support venue when travel route makes passing through a district highly likely)
United States v. Powell, 498 F.2d 890 (9th Cir. 1974) (circumstantial evidence may suffice to prove venue)
United States v. Scott, 437 U.S. 82 (1978) (double jeopardy principles regarding retrial after reversal)