                            NOT FOR PUBLICATION                           FILED
                    UNITED STATES COURT OF APPEALS                         MAY 18 2017
                                                                       MOLLY C. DWYER, CLERK
                                                                        U.S. COURT OF APPEALS
                            FOR THE NINTH CIRCUIT

JAMES E. THORNBERG,                              No.    14-56792

                Petitioner-Appellant,            D.C. No.
                                                 2:14-cv-08091-DSF-AN
 v.

JACK FOX,                                        MEMORANDUM *

                Respondent-Appellee.

                  Appeal from the United States District Court
                       for the Central District of California
                 Valerie Baker Fairbank, District Judge, Presiding

                             Submitted April 4, 2017**
                               Pasadena, California

Before: PLAGER,*** BEA, and OWENS, Circuit Judges.

      James Thornberg appeals the dismissal of his habeas petition filed under 28

U.S.C. § 2241. We have jurisdiction under 28 U.S.C. § 1291 and affirm. Because

the parties are familiar with the factual and procedural history of this case, we



      *
             This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
      **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      ***
             The Honorable S. Jay Plager, United States Circuit Judge for the U.S.
Court of Appeals for the Federal Circuit, sitting by designation.
repeat only those facts necessary to resolve the issues raised on appeal.

      A petitioner may challenge the legality of his conviction or incarceration

under § 2241 only when he “(1) makes a claim of actual innocence, and (2) has not

had an ‘unobstructed procedural shot’ at presenting that claim.” Stephens v.

Herrera, 464 F.3d 895, 898 (9th Cir. 2006) (citation omitted). The district court

assumed, without deciding, that Thornberg did not have an earlier unobstructed

procedural shot to present this claim because the Supreme Court case on which he

relies (United States v. Santos, 553 U.S. 507 (2008)) was not decided until several

years after his conviction. We also assume, without deciding, that Thornberg did

not have an unobstructed procedural shot at presenting this claim.

      Thornberg relies on the Ninth Circuit’s interpretation of Santos in United

States v. Van Alstyne, 584 F.3d 803 (9th Cir. 2009), for his claim of actual

innocence. Under Van Alstyne, a “merger problem” exists if the “concrete details”

of a particular scheme to defraud demonstrate that the actions that served as the

basis for a related money laundering conviction were “a central component of the

‘scheme to defraud.’” 584 F.3d at 814-15. If they are, Van Alstyne requires a

more restrictive interpretation of the money laundering statute (18 U.S.C. § 1956)

under which interpretation Thornberg would be actually innocent of money

laundering.

      The payment to Mail Stop Extra, which served as the basis for count 14 of


                                          2
the money laundering indictment to which Thornberg pleaded guilty, was made for

the purpose of acquiring a mailing address identified as the corporate headquarters

of Thornberg’s fraudulent ethanol vehicle company (QAL Companies) and

“facilitated the fraudulent scheme or artifice by providing a location for the victim

to send mail and inquiries.” Most importantly, Thornberg’s scheme relied on Mail

Stop Extra to receive payments from victims. Thus, the “concrete details” of this

case establish that the mail services provided by Mail Stop Extra were “a central

component” of Thornberg’s scheme to defraud. Van Alstyne, 584 F.3d at 814-15.

This means that the more restrictive definition of § 1956 applies here so as to make

Thornberg actually innocent of the money laundering charge to which he pleaded

guilty.1

       Despite this, the Supreme Court has explained that “[i]n cases where the

Government has forgone more serious charges in the course of plea bargaining,

petitioner's showing of actual innocence must also extend to those charges.”

Bousley v. United States, 523 U.S. 614, 624 (1998). Here the government forewent



1
  Wire fraud has two elements: “(1) the existence of a scheme to defraud, and (2) the use of . . .
wires for purposes of executing the scheme.” United States v. Manzer, 69 F.3d 222, 226 (8th
Cir. 1995). The government’s argument goes astray because it focuses exclusively on the second
element while ignoring the first. The government is clearly correct that the payment to Mail
Stop Extra did not constitute “a central component” of the second element, since that payment
was made for the provision of mail services that were distinct from using wires to further the
fraud scheme. But the government overlooks the first element of wire fraud, which requires “the
existence of a scheme to defraud,” of which the use of the Mail Stop Extra facility was a central
component. Id.

                                                3
prosecuting money laundering counts 15-22 as part of the plea agreement. For this

reason, to establish his overall actual innocence Thornberg must demonstrate that a

similar “merger problem” under Van Alstyne existed with respect to these charges

as well.

      Although Thornberg asserts in his brief that the payments to GTE (that

served as the basis for counts 15, 17, 18, and 20 of his indictment) were for

telecommunication services used by QAL Companies to make communications to

further the scheme to defraud, the record is in fact silent as to the significance of

the payments to GTE. The record demonstrates that the payments to GTE were

apparently for service on a particular phone number (310-540-2294). The record

does not establish whether or not Thornberg used this phone number to

communicate with victims or to serve any other crucial role in his scheme to

defraud. Moreover, the record does not demonstrate that any of the wire

communications that served as the basis for his wire fraud indictments were made

from number 310-540-2294. While it is indeed a plausible inference that

Thornberg used the phone services from GTE in his scheme to defraud, the record

does not in fact establish that the GTE account was a central component of

Thornberg’s fraudulent operation. For that reason, even though Thornberg

established a “merger problem” with respect to his payments to Mail Stop Extra,

he has not done so with respect to his payments to GTE as required to show his


                                           4
overall actual innocence under Bousley.

      AFFIRMED.




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