In United States v. Turchin, --- F4th ---, No. 18-10464 (9th Cir. 2022), the Court reversed in part, and vacated in part Robert Turchin’s jury conviction and sentence arising from his participation in a scheme to issue California commercial driver’s licenses to persons who had not passed the requisite tests.
There is a lengthy discussion of when the Court can consider arguments not initially raised by the parties.
After clearing the procedural hurdle, the Court held that the district judge plainly erred in instructing the jury on federal nexus under § 1028(c)(1), which provides that the requisite federal nexus exists if “the identification document . . . is or appears to be issued by or under the authority of the United States or a sponsoring entity of an event designated as a special event of national significance.” The Court concluded that the phrase “United States” in § 1028(c)(1) refers only to the national government, and does not refer broadly to the United States and all of its component parts, including the States.
Thus, the district court plainly erred in instructing the jury that the federal nexus required by § 1028(c)(1) was satisfied by showing that the identification document in question was issued by a state government. The plain error, moreover, affected Turchin’s substantial rights and seriously affected the fairness of the judicial proceedings. This was because, under the proper instructions, the jury could not have relied on § 1028(c)(1) to establish the needed nexus, and the government’s showing with respect to the two other alternatives for federal nexus in § 1028(c)(3)(A) and § 1028(c)(3)(B) was at least open to debate by reasonable jurors.
As such, the Court reversed Turchin’s convictions on the § 1028(a)(1) counts and his conviction on the conspiracy count to the extent that the object of the conspiracy was a violation of § 1028.
