NOT FOR PUBLICATION                           FILED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

UNITED STATES OF AMERICA,                       No.    17-10192

                Plaintiff-Appellee,             D.C. No.
                                                1:14-cr-00009-FMTG-2
 v.

EDER J. CORTEZ-ZELAYA,                          MEMORANDUM*

                Defendant-Appellant.

                   Appeal from the United States District Court
                             for the District of Guam
           Frances Tydingco-Gatewood, Chief District Judge, Presiding

                        Argued and Submitted July 9, 2020
                                Honolulu, Hawaii

Before: OWENS, FRIEDLAND, and R. NELSON, Circuit Judges.

      Eder Cortez-Zelaya appeals from his convictions and sentence in connection

with a conspiracy to distribute methamphetamine. We have jurisdiction under 28

U.S.C. § 1291. As the parties are familiar with the facts, we do not recount them

here. We reverse and remand for a new trial as to Counts One, Four, and Five, and

for a judgment of acquittal as to Count Two.



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      1.      In a separate appeal brought by Cortez-Zelaya’s codefendant

Francisco Arias, the government conceded that the district court’s failure to give a

specific unanimity instruction as to Count One was plain error, and our court held

that the error affected Arias’ substantial rights. United States v. Arias, 784 F.

App’x 485, 487 (9th Cir. 2019) (unpublished). The government concedes that,

because Cortez-Zelaya and Arias were codefendants on Count One, our decision in

Arias’ appeal is “the law of the case” and binding in this appeal. United States v.

Tierney, 

, 39 (9th Cir. 1971). We therefore reverse Cortez-Zelaya’s

conviction on Count One and remand for a new trial. Arias, 784 F. App’x at 488.

      2.      The government also concedes that it presented insufficient evidence

of money laundering to convict Cortez-Zelaya on Count Two. The government

was required to prove that Cortez-Zelaya or his coconspirators “conduct[ed] . . . a

financial transaction which in fact involve[d] the proceeds of specified unlawful

activity”—in this case, drug proceeds. 18 U.S.C. § 1956(a). At trial, the

government failed to prove that Cortez-Zelaya conducted any financial transactions

involving drug proceeds as opposed to payments in advance of shipments. We

therefore reverse Cortez-Zelaya’s conviction on Count Two and remand for entry

of a judgment of acquittal. See United States v. Johnson, 

, 1079 (9th

Cir. 2017).

      3.      Cortez-Zelaya also argues that the jury instructions for Counts Four


                                           2                                    17-10192
and Five incorrectly described the elements of a Travel Act violation. Because

Cortez-Zelaya did not object to the instructions at trial, we review for plain error.

United States v. Fuchs, 

, 961–62 (9th Cir. 2000). We exercise our

discretion to correct plain error if “(1) there is an ‘error’; (2) the error is ‘clear or

obvious, rather than subject to reasonable dispute’; (3) the error ‘affected the

appellant’s substantial rights, which in the ordinary case means’ it ‘affected the

outcome of the district court proceedings’; and (4) ‘the error seriously affect[s] the

fairness, integrity or public reputation of judicial proceedings.’” United States v.

Marcus, 

, 262 (2010) (quoting Puckett v. United States, 

,

135 (2009)).

       The government concedes that the district court clearly and obviously erred

when it failed to require that the jury find that Cortez-Zelaya engaged in a

continuous “business enterprise” rather than “sporadic casual involvement in a

proscribed activity.” United States v. Donaway, 

, 944 (9th Cir. 1971).

In addition, the instructions failed to require that Cortez-Zelaya committed a

“subsequent overt act” following his use of the mail, instead requiring only that

Cortez-Zelaya “perform[] and/or attempt[] to perform conspiracy to distribute

methamphetamine.” United States v. Stafford, 

, 1481 (9th Cir. 1987)

(citation omitted). This, too, was clear and obvious error. See

affected Cortez-Zelaya’s substantial rights because they


                                             3                                      17-10192
materially reduced the government’s burden. Under the instructions, the jury could

have convicted even if it believed that the packages were isolated drug shipments,

that Cortez-Zelaya had no knowledge of a larger drug distribution enterprise, that

Cortez-Zelaya did not act with intent to promote that enterprise, or that Cortez-

Zelaya did not commit any overt acts other than setting up bank accounts for Arias

and later mailing the packages. Any of these findings should have resulted in an

acquittal under the Travel Act.

instructions authorized the jury to

“rely on a theory it should have discarded,” the instructional error affected Cortez-

Zelaya’s substantial rights. United States v. Vazquez-Hernandez, 

,

1228–29 (9th Cir. 2017).

      Furthermore, “the jury’s possible reliance on a legally invalid theory

constitutes a miscarriage of justice which would seriously affect the fairness,

integrity or public reputation of judicial proceedings.”

(internal

quotation marks and citation omitted). We therefore reverse Cortez-Zelaya’s

convictions on Counts Four and Five for plain error and remand for a new trial.1

      REVERSED AND REMANDED.




      1
             While we reverse for instructional error, we hold that the evidence in
this case was legally sufficient to justify Cortez-Zelaya’s conviction on Count
Five, viewing the record in the light most favorable to the prosecution. Jackson v.
Virginia, 

, 319 (1979).

                                          4                                      17-10192