Filed: Sep. 21, 2020
Latest Update: Sep. 21, 2020
Summary: 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
Summary: 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..
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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 through the sentence
concluding with is deleted and
replaced with the sentence: . 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: .
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.
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NOT FOR PUBLICATION FILED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,
Defendant-Appellant.
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
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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
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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
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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
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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.
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