FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 18-10464 Plaintiff-Appellee, D.C. No. v. 2:15-cr-00161- GEB-4 ROBERT TURCHIN, Defendant-Appellant. OPINION Appeal from the United States District Court for the Eastern District of California Garland E. Burrell, Jr., District Judge, Presiding Argued and Submitted October 13, 2020 San Francisco, California Filed January 3, 2022 Before: Ferdinand F. Fernandez, Kim McLane Wardlaw, and Daniel P. Collins, Circuit Judges. Opinion by Judge Collins; Partial Concurrence and Partial Dissent by Judge Fernandez 2 UNITED STATES V. TURCHIN SUMMARY * Criminal Law The panel affirmed in part, reversed in part, and vacated in part Robert Turchin’s jury 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. Turchin was convicted of three counts of fraud involving identification documents in violation of 18 U.S.C. § 1028(a)(1) and one count, under 18 U.S.C. § 371, of conspiracy to violate the prohibitions on bribery concerning a program receiving federal funds under 18 U.S.C. § 666(a)(1)(B) and (a)(2) and the prohibitions on fraud involving identification documents under § 1028(a). The panel held that Turchin’s actions fell within the scope of conduct covered by § 1028(a)(1), which imposes punishment on anyone who “knowingly and without lawful authority produces an identification document.” Reversing in part, the panel held that the government did not properly establish the requisite nexus to commerce to support the three § 1028 charges or the conspiracy charge to the extent it was based on § 1028. As to this issue, the panel exercised its discretion to depart from the rule that court will not consider matters on appeal that are not specifically and distinctly argued in the opening brief. The panel held that * This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. UNITED STATES V. TURCHIN 3 the district court plainly erred in instructing the jury on federal nexus under § 1028(c)(1), which provides that the requisite federal nexus exists if “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.” The panel held that the phrase “United States” in § 1028(c)(1) refers only to the national government, and does not refer broadly to the United States and all of its component parts, including the States. Accordingly, the district court plainly erred in instructing the jury that the federal nexus required by § 1028(c)(1) was automatically satisfied merely by showing that the identification document in question was issued by a state government. The panel held that this plain error affected Turchin’s substantial rights and seriously affected the fairness, integrity, or public reputation of the judicial proceedings. The panel held that, under the proper instructions, the jury could not have relied on § 1028(c)(1), …
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