United States v. Moore, 052020 FED9, 19-30031

Docket Nº:19-30031
Party Name:UNITED STATES OF AMERICA, Plaintiff-Appellee, v. JOHN KEVIN MOORE, AKA Kevin Moore, Defendant-Appellant.
Judge Panel:Before: McKEOWN and PAEZ, Circuit Judges, and HUCK, District Judge.
Case Date:May 20, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

JOHN KEVIN MOORE, AKA Kevin Moore, Defendant-Appellant.

No. 19-30031

United States Court of Appeals, Ninth Circuit

May 20, 2020

NOT FOR PUBLICATION

Argued and Submitted March 6, 2020 Portland, Oregon

Appeal from the United States District Court No. 4:17-cr-00042-BMM-1 for the District of Montana Brian M. Morris, District Judge, Presiding

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

MEMORANDUM [*]

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 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 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...

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