United States v. Turchin

• Decision Date: 03 January 2022
• Docket Number: No. 18-10464,18-10464
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Robert TURCHIN, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

21 F.4th 1192

UNITED STATES of America, Plaintiff-Appellee,

v.Robert TURCHIN, Defendant-Appellant.

No. 18-10464

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 13, 2020 San Francisco, California

Filed January 3, 2022

Meredith Fahn (argued), San Jose, California, for Defendant-Appellant.

Rosanne L. Rust (argued), Assistant United States Attorney; Camil A. Skipper, Appellate Chief; McGregor W. Scott, United States Attorney; United States Attorney's Office, Sacramento, California; for Plaintiff-Appellee.

Before: Ferdinand F. Fernandez, Kim McLane Wardlaw, and Daniel P. Collins, Circuit Judges.

Partial Concurrence and Partial Dissent by Judge Fernandez

COLLINS, Circuit Judge:

Robert Turchin appeals his 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. We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C. § 3742(a), and we affirm in part, reverse in part, vacate in part, and remand.

I

Turchin worked as a licensing registration examiner at the California Department of Motor Vehicles ("DMV") office in Salinas, California. As a licensing examiner, Turchin was able to access the DMV database and enter test scores for applicants seeking California commercial driver's licenses ("CDLs"). The Government's theory at trial was that Mangal Gill, who owned a truck-driving school, paid Turchin and another DMV employee, Emma Klem, to enter false information into the DMV database stating that specified persons identified by Gill had obtained passing scores on DMV exams required for applicants seeking CDLs. After undercover Department of Homeland Security ("DHS") operatives obtained illegitimate CDLs through this scheme, Turchin was indicted, as were Gill, Klem, and various other participants. Specifically, Turchin was charged with (1) three counts of fraud involving identification documents in violation of 18 U.S.C. § 1028(a)(1) ; and (2) one count, under 18 U.S.C. § 371, of conspiracy to violate (i) the prohibitions on bribery concerning a program receiving federal funds, see id. § 666(a)(1)(B) and (a)(2); and (ii) the prohibition on fraud involving identification documents, see id. § 1028(a)(1).

At Turchin's jury trial, the DHS operatives testified that they were able to obtain CDLs without passing the required tests and that they had received hard copies of those licenses in the mail. Klem, who had pleaded guilty, testified against Turchin, stating that Gill paid her to alter DMV records by entering false passing test scores and that he told her that, if she could not update a given record, he would "have Robert [Turchin] finish it." Salinas DMV supervisor Julie Ferreira testified that she noticed on multiple occasions that Turchin entered passing test scores for applicants who had not passed required tests.

The prosecution also offered evidence of text messages containing the California driver's license numbers of particular individuals, which Gill sent to Turchin shortly before Turchin updated the corresponding records for those persons with false passing scores. For example, Gill sent at least three texts containing license numbers to Turchin on March 27–28, 2015, and later in the day on March 28, Turchin updated the corresponding DMV records with phony passing scores. Then, on March 29, Turchin sent Gill a text that listed the last three digits of these license numbers, together with the notations "closed" and "postage due." A search of Turchin's SUV a few days later revealed at least four envelopes stuffed in a corner of the cargo trunk area. Those envelopes contained a total of over $10,000 in various denominations. Klem testified that Gill similarly paid her cash in envelopes.

The jury convicted Turchin on all counts, and it made a special finding that Turchin had conspired both to violate the bribery statute and to commit identity fraud.

II

Viewing the underlying facts in the light most favorable to the verdict, we review de novo Turchin's argument that his actions fell outside the "scope of the conduct" covered by 18 U.S.C. § 1028(a)(1). See United States v. Deeb , 175 F.3d 1163, 1166–67 (9th Cir. 1999).¹ We reject this contention.

Turchin was charged under the language of § 1028(a)(1) that imposes punishment on anyone who "knowingly and without lawful authority produces an identification document." 18 U.S.C. § 1028(a)(1). The California CDLs that Turchin produced were "identification documents" within the plain meaning of the statutory definition of that term. See id. § 1028(d)(3) ("identification document" includes a "document made or issued by or under the authority of ... a State ... which, when completed with information concerning a particular individual, is of a type intended or commonly accepted for the purpose of identification of individuals"). Given that Turchin knew that the recipients had not completed the eligibility requirements for these CDLs, he knowingly produced those identification documents "without lawful authority." Id. § 1028(a)(1). To the extent that Turchin contends that an identification document is produced "without lawful authority" only when it is issued to a "misidentified" person, there is no basis in the statutory language for imposing such a limitation. There are any number of ways in which the requisite "lawful authority" for producing an identification document might be lacking, and nothing in the statute limits its coverage to that specific situation. See United States v. Osuna-Alvarez , 788 F.3d 1183, 1185–86 (9th Cir. 2015) (rejecting narrow reading of "without lawful authority" in 18 U.S.C. § 1028A, which defines aggravated identity theft, and explaining that "[t]his language clearly and unambiguously encompasses situations like the present, where an individual grants the defendant permission to possess his or her means of identification, but the defendant then proceeds to use the identification unlawfully").

Turchin also argues that the documents he produced do not qualify as "false identification documents" as defined in § 1028(d)(4), but even assuming that is true, it makes no difference here. Turchin was charged with, and convicted of, violating the portion of § 1028(a)(1) that criminalizes producing "identification document[s]" without lawful authority, not the portion of that subsection that proscribes producing "false identification document[s]" without lawful authority. 18 U.S.C. § 1028(a)(1) (emphasis added).

III

Turchin contends that the Government failed to establish the requisite nexus to commerce to support either the alleged violations of § 1028 or the alleged conspiracy to violate § 1028 and § 666. We agree that the Government did not properly establish the requisite nexus to support the § 1028 charges or the conspiracy charge to the extent that it is based on § 1028, but not for the reasons that Turchin identifies. We find no reversible error as to the conviction for conspiring to violate § 666.²

A

Any charge of unlawful production of an identity document under § 1028(a)(1) requires a showing of a federal nexus in one of three alternative ways: (1) 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"; (2) the prohibited production "is in or affects interstate or foreign commerce"; or (3) the identification document "is transported in the mail in the course of the production ... prohibited by this section." 18 U.S.C. §§ 1028(c)(1), (3)(A), (B) ; see also id. § 1028(a).³

The jury was instructed on all three alternatives, but in his opening brief Turchin challenged the legal and factual adequacy of the Government's showing only with respect to the second and third alternatives. The Government's answering brief likewise confined its discussion to the second and third alternatives and never mentions the first. At first blush, that is not surprising, because the first alternative is obviously inapplicable as a matter of law: the California CDLs at issue here were not documents "issued by or under the authority of the United States" (such as a passport), nor is the California DMV the "sponsoring entity of an event designated as a special event of national significance." 18 U.S.C. § 1028(c)(1). In examining the record on this issue of federal nexus, however, we noted that the district court's written and oral jury instructions both described the first federal nexus alternative as follows: "the identification document ... was or appeared to be issued by or under authority of the State of California, or a political subdivision of the State " (emphasis added). Accordingly, we asked the parties to submit supplemental briefs addressing whether this instruction was a plain error that we should consider even though the parties had not called it to our attention. See FED. R. CRIM. P. 52(b) ("A plain error that affects substantial rights may be considered even though it was not brought to the court's attention."). Turchin has argued, in his supplemental brief, that the § 1028(c)(1) instruction was plainly erroneous and warrants reversal. In its supplemental brief, the Government asserts that we should decline to consider this issue and that, if we do address it, we should hold that the instruction rests on a legally correct interpretation of § 1028(c)(1). We agree with Turchin.

The Government contends that we should not address any issue about § 1028(c)(1) given that Turchin failed to argue in his opening brief that the district court's instructions concerning that section were plainly erroneous. See, e.g., United States v. Salman , 792 F.3d 1087, 1090 (9th Cir. 2015). But the rule that we will not consider "matters on appeal that are not specifically and distinctly argued in appellant's opening brief" is not ironclad, and we have departed from it when, inter alia , the "failure to do so would result...