United States v. John Moore

Opinion

UNITED STATES COURT OF APPEALS FILED FOR THE NINTH CIRCUIT SEP 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS UNITED STATES OF AMERICA, No. 19-30031

Plaintiff-Appellee, D.C. No. 4:17-cr-00042-BMM-1 v. District of Montana, Great Falls JOHN KEVIN MOORE, AKA Kevin Moore, ORDER

Defendant-Appellant.

Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,* District Judge.

The memorandum disposition filed on May 20, 2020, and appearing at 816

F. App’x 56 (9th Cir. 2020), is amended as follows:

At 816 F. App’x at 59, the text starting with the sentence beginning

of these examples exhibits a fiduciary-type relationship> through the sentence

concluding with is deleted and

replaced with the sentence:

Moore may have owed to the victims once they became members of the LLC, a

relationship of public or private trust did not exist between Moore and the victims

at the time Moore solicited their investments.>. The subsequent sentence is

* The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. revised and shall read:

sentencing enhancement to Moore for abuse of trust.>.

The amended memorandum disposition is filed concurrently with this order.

With these amendments, a majority of the panel votes to deny the

government’s petition for panel rehearing (Dkt. No. 41). Judges Paez and Huck

vote to deny the petition for panel rehearing and Judge McKeown votes to grant

the petition for panel rehearing. The panel votes to deny Moore’s petition for

panel rehearing (Dkt. No. 42). The petitions for panel rehearing are denied.

2 NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS SEP 21 2020 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 19-30031

Plaintiff-Appellee, D.C. No. 4:17-cr-00042-BMM-1 v. AMENDED JOHN KEVIN MOORE, AKA Kevin MEMORANDUM* Moore,

Appeal from the United States District Court for the District of Montana Brian M. Morris, District Judge, Presiding

Argued and Submitted March 6, 2020 Portland, Oregon

Before: McKEOWN and PAEZ, Circuit Judges, and HUCK,** District Judge.

John Kevin Moore appeals from his conviction and sentence in the District

of Montana for wire fraud under 18 U.S.C. § 1343, money laundering under 18

U.S.C. § 1957, and making false statements under 18 U.S.C. § 1001(a)(2). The

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The Honorable Paul C. Huck, United States District Judge for the U.S. District Court for Southern Florida, sitting by designation. parties are familiar with the facts, so we do not repeat them here. We have

jurisdiction under 28 U.S.C. § 1291, and we affirm in part and reverse in part.

Moore first argues that the Superseding Indictment was unconstitutionally

vague and failed to identify Moore’s false statements with requisite specificity. An

indictment must be a “plain, concise, and definite written statement of the essential

facts constituting the offense charged.” Fed. R. Crim. P. 7(c)(1). The indictment

is constitutionally sufficient if it contains “the elements of the charged crime in

adequate detail to inform the defendant of the charge and to enable him to plead

double jeopardy.” United States v. Alber, 56 F.3d 1106, 1111 (9th Cir. 1995)

(internal quotation marks and citation removed). The Superseding Indictment

included the requisite elements for wire fraud, money laundering, and making false

statements, which was “adequate detail to inform the defendant of the charge.” Id.

(internal quotation marks and citation removed). The government was not required

to prove a specific, materially false statement on which the jury unanimously

agreed for its charge of wire fraud. See United States v. Woods, 335 F.3d 993, 999

(9th Cir. 2003).

Moore next argues that the district court erred when it declined to adopt his

suggested special unanimity instruction. A general unanimity instruction is

ordinarily sufficient to protect a defendant’s constitutional right to a unanimous

verdict in a criminal prosecution, but a special instruction is necessary “if it

2 appears that there is a genuine possibility of jury confusion or that a conviction

may occur as the result of different jurors concluding that the defendant committed

different acts.” United States v. Gonzales, 786 F.3d 714, 717 (9th Cir. 2015)

(internal quotation marks and citation removed). The district court’s jury

instruction—which included a clarification that the jury must agree “as to the

scheme or plan to defraud devised by the defendant”—was sufficient to ensure

Moore’s right to a unanimous verdict.

The Constitution and the Federal Rules of Criminal Procedure require that a

trial take place in the district in which the charged crime was committed, but not

the division. See Carillo v. Squier, 137 F.2d 648, 648 (9th Cir. 1943) (“[A] trial,

judgment and sentence in one division is not invalid or void because the crime was

committed in another division in the same district.”); Fed. R. Crim. P. 18 (“[T]he

government must prosecute an offense in a district where the offense was

committed.”). Moore concedes that the proper venue was the District of Montana,

but he argues that the trial should have been held in the Missoula Division of the

district, not the Great Falls Division, in accordance with local district rules. Before

trial, Moore filed a motion for a transfer of venue, which the district court denied.

Local district rules provide that the district court may exercise discretion over

where the trial is held among the various court-created divisions of the district. See

D. Mont. Crim. R. 18.1. Moore has not alleged any actual prejudice that resulted

3 from the alleged violation of local rules. See United States v. Allen, 633 F.2d

1282, 1294 (9th Cir. 1980) (holding that there was no reversable error in a

violation of local assignment rules absent a showing of actual prejudice). The

district court did not abuse its discretion in denying Moore’s motion.

Moore contends that the district court erred in denying his motion to

suppress the transcript of a conversation he had with FBI agents, which he alleges

was the product of a warrantless search and seizure in violation of the Fourth

Amendment. One exception to the warrant requirement is the “knock and talk”

exception, which allows an officer to enter an individual’s home to conduct an

interview if the entrance is consensual. United States v. Perea-Rey, 680 F.3d 1179,

1187–88 (9th Cir. 2012). Moore consented to agents entering his home to conduct

an interview, and so the district court did not err in denying Moore’s motion to

suppress the transcript of that conversation.

Moore next argues that the district court erred in denying his motion to

dismiss for pre-indictment delay. In United States v. Manning, we held that claims

for pre-indictment delay should be evaluated by considering: (1) whether there was

actual prejudice to the defendant, (2) the length of the delay, and (3) the

government’s reason for the delay. 56 F.3d 1188, 1194 (9th Cir. 1995). The

“burden of proving that a preindictment delay caused actual prejudice is a heavy

one,” and “[the defendant] must demonstrate how the loss of a witness and/or

4 evidence is prejudicial to his case.” United States v. Gregory, 322 F.3d 1157, 1165

(9th Cir. 2003) (internal quotation marks and citations removed). Moore has failed

to allege any actual prejudice in this case, and the district court did not err in

denying Moore’s motion to dismiss.

Moore also argues that the district court improperly applied a two-level

sentencing enhancement for obstruction under USSG § 3C1.1. The district court

applied this enhancement on the ground that Moore committed perjury during the

trial. We have previously held that perjury qualifies as obstruction where: “(1) the

defendant gave false testimony, (2) on a material matter, (3) with willful intent.”

United States v. Castro-Ponce, 770 F.3d 819, 822 (9th Cir. 2014) (internal

quotation marks and citations removed). The record supports the district court’s

determination that Moore’s testimony at trial qualified for the obstruction

enhancement under the Castro-Ponce test.

Finally, Moore argues that the district court erred in applying an abuse of

trust enhancement when calculating the appropriate Sentencing Guidelines range.

Under USSG § 3B1.3, a district court may impose a sentencing enhancement for

abuse of trust “[i]f the defendant abused a position of public or private trust, or

used a special skill, in a manner that significantly facilitated the commission or

concealment of the offense.” The notes to the Sentencing Guidelines explain that

“abuse of trust” is found in situations such as a lawyer embezzling funds from a

5 client, a bank executive engaging in a fraudulent loan scheme, or a physician

sexually abusing a patient. USSG § 3B1.3, cmt. n.1 (2009).

Regardless of the duties under Montana law that Moore may have owed to

the victims once they became members of the LLC, a relationship of public or

private trust did not exist between Moore and the victims at the time Moore

solicited their investments. The district court therefore erred in applying the two-

level sentencing enhancement to Moore for abuse of trust.

For these reasons, the judgment of the district court is affirmed in part and

reversed in part. We remand for further proceedings consistent with this

disposition.

AFFIRMED IN PART AND REVERSED IN PART.