                     FOR PUBLICATION

    UNITED STATES COURT OF APPEALS
         FOR THE NINTH CIRCUIT


 UNITED STATES OF AMERICA,                          No. 19-50134
                 Plaintiff-Appellee,
                                                      D.C. No.
                      v.                           3:18-cr-05210-
                                                       BAS-1
 EZEQUIEL FRANCISCO MORAN-
 GARCIA,
              Defendant-Appellant.                    OPINION


        Appeal from the United States District Court
           for the Southern District of California
        Cynthia A. Bashant, District Judge, Presiding

             Argued and Submitted March 6, 2020
                    Pasadena, California

                        Filed July 23, 2020

 Before: Andrew J. Kleinfeld and Jacqueline H. Nguyen,
 Circuit Judges, and William H. Pauley III,* District Judge.

                   Opinion by Judge Kleinfeld




     *
       The Honorable William H. Pauley III, United States District Judge
for the Southern District of New York, sitting by designation.
2              UNITED STATES V. MORAN-GARCIA

                            SUMMARY**


                            Criminal Law

    Because venue was not established, the panel vacated a
conviction for attempting to enter the United States after
having been deported and attempting to enter the United
States other than at a place designated, and remanded for
dismissal of the indictment without prejudice.

    The defendant was among passengers caught in a
disguised boat six miles off the California coast. The panel
wrote that the location of the putative offense was not within
the Southern District of California, which comprises Imperial
County (landlocked) and San Diego County, whose western
border, as defined by California law, extends three miles into
the Pacific Ocean. Observing that proper venue is a
constitutional right and a question of fact that the government
must prove by a preponderance of the evidence, the panel
wrote that the district court could not properly decide venue
itself and should have submitted the issue to the jury.

    The panel rejected the government’s harmlessness
argument based on a new theory of venue on appeal—that
venue was proper in the Southern District of California under
18 U.S.C. § 3238, which provides that the trial of an offense
begun or committed outside any judicial district shall be in
the district in which the offender is arrested or first brought.
The panel explained that when, as here, a court has failed to
give a venue instruction to the jury, that error will be viewed

    **
       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. MORAN-GARCIA                     3

as harmless if the evidence viewed rationally by a jury could
only support a conclusion that venue existed. Observing that
it is not certain and obvious that the agents would have
brought their arrestees to the Southern District of California,
the panel could not say that no rational juror could have
concluded otherwise, considering that the government had the
burden of proof.

    Because double jeopardy does not apply in the same way
to a failure to prove venue as it does to a failure to prove an
element of an offense, the panel remanded with instructions
to dismiss the indictment without prejudice. The panel wrote
that the district court has discretion with regard to collateral
estoppel if that is raised in a motion before it.


                         COUNSEL

Doug Keller (argued), Federal Defenders of San Diego Inc.,
San Diego, California, for Defendant-Appellant.

Zachary J. Howe (argued), Assistant United States Attorney;
Daniel E. Zipp, Chief, Appellate Section, Criminal Division;
Robert S. Brewer Jr., United States Attorney; United States
Attorney’s Office, San Diego, California; for Plaintiff-
Appellee.
4           UNITED STATES V. MORAN-GARCIA

                         OPINION

KLEINFELD, Senior Circuit Judge:

    We vacate the conviction and remand for dismissal of the
indictment without prejudice because venue was not
established.

    Ezequiel Francisco Moran-Garcia was among the
passengers caught late at night six miles off the California
coast in a small, disguised boat. He was indicted for
attempting to enter the United States after having been
deported, in violation of 8 U.S.C. § 1326(a) and (b), and for
attempting to enter the United States other than at a place
designated, in violation of 8 U.S.C. § 1325. The indictment
alleged that these offenses had occurred “within the Southern
District of California.”

    Before trial, the government argued that the district court
should take judicial notice that the Southern District of
California extended twelve miles out to sea and so instruct the
jury. The evidence at trial established that Moran was
apprehended six miles off the coast, within sight of the lights
of San Diego. San Diego is within the Southern District of
California. At the conclusion of the government’s evidence,
defense counsel moved under Federal Rule of Criminal
Procedure 29 for a judgment of acquittal based on insufficient
evidence of venue. Defense counsel argued that the Southern
District extended only three miles out to sea, not twelve, so
the government had failed to prove that the offense was
committed within the Southern District. The district court
denied the motion, accepting the government’s argument that
the location where the boat was captured was within the
Southern District. The court then ruled that no jury
                UNITED STATES V. MORAN-GARCIA                            5

instruction on venue was appropriate because, in its view,
venue was not a question of fact for the jury but instead a
legal question that it had already decided by denying defense
counsel’s Rule 29 motion.

    The government attorney gave bad counsel to the district
court. Defense counsel was correct, and the court erred by
taking the question from the jury. The Southern District of
California as defined by Congress “comprises the counties of
Imperial and San Diego.”1 Imperial County is landlocked, so
only San Diego County matters to this case. “The territorial
sea of the United States . . . extends to 12 nautical miles,”2 but
that is not true of the Southern District of California.
California law defines the western border of San Diego
County as extending “to a point three English miles [into the]
Pacific Ocean.”3 Thus it is beyond debate that the location of
the putative offense was within the territorial waters of the
United States but was not within the Southern District of
California.

    Controlling circuit law establishes that, although venue is
not an element of the offense, nevertheless “it must still be
proved by the government at trial.”4 “Venue is a question of
fact that the government must prove by a preponderance of




    1
        28 U.S.C. § 84(d).
    2
        Proclamation No. 5928, 54 Fed. Reg. 777 (Dec. 27, 1988).
    3
        Cal. Gov’t Code § 23137.
    4
      United States v. Jensen, 93 F.3d 667, 669 n.2 (9th Cir. 1996) (citing
United States v. Kaytso, 868 F.2d 1020, 1021 (9th Cir. 1988)).
6                UNITED STATES V. MORAN-GARCIA

the evidence.”5 It is a jury question. “[N]ormally it is not for
the court to determine venue” and “it is error to not give a
requested instruction on venue.”6 Venue is “part of the
bedrock of our federal system,”7 and proper venue is a
“constitutional right,” “not a mere technicality.”8 The district
court therefore could not properly decide venue itself and
should have submitted the issue to the jury. The district court
could not properly take judicial notice that the location where
the boat was captured fell within the Southern District of
California, since it did not.

    The government argues a new theory of venue on appeal,
one it did not urge at trial. Its new argument is that venue
was proper in the Southern District of California under
18 U.S.C. § 3238, which provides that the trial of an offense
begun or committed outside any judicial district “shall be in
the district in which the offender . . . is arrested or is first
brought.”9 The government argues that a rational juror could


    5
       United States v. Lukashov, 694 F.3d 1107, 1120 (9th Cir. 2012)
(citing United States v. Casch, 448 F.3d 1115, 1117 (9th Cir. 2006)).
    6
        Lukashov, 694 F.3d at 1112 (citing Casch, 448 F.3d at 1117).
    7
        Casch, 448 F.3d at 1117.
    8
        Lukashov, 694 F.3d at 1119; see also U.S. CONST. art. III, § 2, cl. 3.
    9
        18 U.S.C. § 3238 (emphasis added). 18 U.S.C. § 3238 reads in full:

                The trial of all offenses begun or committed upon
           the high seas, or elsewhere out of the jurisdiction of any
           particular State or district, shall be in the district in
           which the offender, or any one of two or more joint
           offenders, is arrested or is first brought; but if such
           offender or offenders are not so arrested or brought into
                UNITED STATES V. MORAN-GARCIA                          7

have found it more likely than not that Moran was first
brought to the Southern District of California. Therefore, the
government claims, the errors of taking venue away from the
jury and deciding the issue on an erroneous theory were
harmless. This argument is colorable because, as we have
held, error in taking venue away from the jury, though of
“constitutional magnitude, . . . is not structural,” and is
“consequently susceptible of harmless error analysis.”10

    The government would thus have us apply the usual test
for insufficiency of evidence: whether “any rational juror”
could have concluded that Moran was “first brought” to the
Southern District of California.11 This would be the correct
test if the jury had concluded that venue was proper, but it is
the wrong test for harmless error in this case where the
question was not put to the jury and the jury made no
determination.

    “[W]hen a court has failed to give a venue instruction to
the jury, that error will be viewed as harmless if the evidence
viewed rationally by a jury could only support a conclusion
that venue existed.”12 Thus, the test for harmless error is not


           any district, an indictment or information may be filed
           in the district of the last known residence of the
           offender or of any one of two or more joint offenders,
           or if no such residence is known the indictment or
           information may be filed in the District of Columbia.
    10
         Casch, 448 F.3d at 1117.
    11
         United States v. Nevils, 598 F.3d 1158, 1166 (9th Cir. 2010) (en
banc).
    12
         Lukashov, 694 F.3d at 1120.
8               UNITED STATES V. MORAN-GARCIA

whether “any rational juror” could have concluded that
Moran was first brought to the Southern District of
California, but rather whether the evidence, had it been
viewed by a rational jury, could only have led to that
conclusion. This is a kind of converse of the sufficiency of
the evidence test applicable where a jury has made a
determination: Instead of asking whether a rational juror
could have reached the conclusion, we ask whether a rational
juror could have rejected the urged conclusion. Applying the
correct test, the government has not established harmlessness
of the error.

    Sometimes “proof of venue may be so clear that failure to
instruct on the issue is not reversible error.”13 In this case,
though, the proof was not so clear. No witness testified to
where Moran was first brought. The question was not asked.
Government testimony established only that the boat was
apprehended six miles offshore within sight of the lights of
San Diego, and that the government’s marine interdiction unit
agent, who testified to the capture, was based in San Diego.

    Venue, like most facts, can be proved as effectively by
circumstantial evidence as by direct evidence.14 The
government argues that this case is like United States v.
Trenary, where we held the jury could infer that the
defendants passed through the Southern District of California
based on their drive from Newport Beach, California, to




    13
       Casch, 448 F.3d at 1118 (quoting United States v. Martinez,
901 F.2d 374, 376 (4th Cir. 1990)).
    14
         United States v. Powell, 498 F.2d 890, 891 (9th Cir. 1974).
                 UNITED STATES V. MORAN-GARCIA                 9

Punta Bandera, Mexico.15 But this analogy is poor. In
Trenary, the smugglers driving from Newport Beach—on the
coast in the Central District of California—to Punta
Bandera—on the Baja California coast southwest of
Tijuana—would almost certainly have passed through the
Southern District of California.16 But in the case before us, it
is nowhere near so certain and obvious that the agents would
have brought their arrestees to the Southern District of
California. Though a rational juror could have so inferred,
we cannot say that no rational juror could have concluded
otherwise, considering that the government had the burden of
proof.

    Had they been instructed on venue, the jurors could have
rationally concluded that, since no agent was asked where
Moran was first brought, and it was within the power of the
prosecutor to ask, that the agents did not know. Jurors might
have rationally inferred from the absence of easily available
evidence, as jurors often do, that if the government did not
present evidence that Moran was first brought to San Diego,
and had the burden of proving it, he probably was not brought
there. The evidence demonstrated that the agents patrolled
from San Diego all the way north to San Francisco. The
agents did not testify that they stopped patrolling as soon as
they caught an offender to bring him or her in, so a juror
might have inferred that the agents likely continued their
patrol north, at least until their boat was too full to continue.

   The government urges that we reach a contrary
conclusion based on two documents that were not introduced


    15
         473 F.2d 680, 681–82 (9th Cir. 1973) (per curiam).
    16
         Id. at 682.
10          UNITED STATES V. MORAN-GARCIA

at trial. This argument is hard to understand, since rational
jurors could not have drawn an inference from evidence never
presented to them. Nor are the documents much help. The
government says that Moran neither does nor could raise any
actual doubt as to venue, perhaps suggesting that Moran
could not have proved that he was not first brought into the
Southern District. But this is irrelevant, since the burden of
proof was and is on the prosecution. The documents are of
limited force regardless.

    One is the presentence report, which did not exist until
after the trial and was under seal. Jurors never see these. The
presentence report says that Moran and the other illegal aliens
caught “were turned over” to border-protection agents at
Point Loma Naval Base in San Diego. But the probation
officer who wrote the report had no personal knowledge of
this fact, and therefore must have been relying on what the
prosecutors or agents told him, or assumed it, since this fact
was of no importance to the sentencing recommendation.

    The other document is an internal memorandum from one
interdiction agent in the agency to another saying that the
aliens on the boat “were transported to U.S. Naval Base Point
Loma [in San Diego] for further inspection” and then
“transported by U.S. Border Patrol Agents to the San
Clemente Border Patrol Station for processing” and
“arrested” at the dock in San Clemente. This document was
submitted during motion practice but not at trial. No juror
could have inferred anything from it, never having seen it.
San Clemente, where Moran was arrested, is in the Central
District of California, not the Southern District of California.
Since the statute says venue “shall be in the district in which
                UNITED STATES V. MORAN-GARCIA                 11

the offender . . . is arrested or is first brought,”17 had jurors
seen this document, it might have added to their uncertainty.
Neither they nor we, from what evidence was presented at
trial—and even what was not presented at trial but has been
put before us—would know from the record why Moran was
arrested in the Central District of California rather than in the
Southern District.

    Venue is not an element of the crime.18 Unlike an
element, it need not be proved beyond a reasonable doubt.19
But venue does need to be put to the jury, and proved by the
government, albeit only by a preponderance of the evidence.20
Neither was done here, and the evidence viewed rationally by
a jury would not necessarily support the conclusion that
venue lay in the Southern District of California. The errors,
not being harmless under the applicable standard, require that
Moran’s conviction be vacated.

    The parties agree that the case should be dismissed upon
remand if we do not deem the error to have been harmless.
They differ on whether dismissal should be with or without
prejudice. Citing Kaytso, we noted in United States v.
Ruelas-Arreguin that in the absence of a request by the




    17
         18 U.S.C. § 3238 (emphasis added).
    18
         Jensen, 93 F.3d at 669 n.2.
    19
         Lukashov, 694 F.3d at 1120.
    20
         Id.
12               UNITED STATES V. MORAN-GARCIA

defendant for transfer to a proper venue, the indictment
should be dismissed without prejudice.21

     Generally, under the Double Jeopardy Clause, the
government does not get a second trial to prove what it failed
to prove by sufficient evidence in the first trial.22 But double
jeopardy does not apply in the same way to a failure to prove
venue as it does to a failure to prove an element of an offense.
Unlike the typical reversal for sufficiency of the evidence, the
missing evidence here did not go to guilt or innocence; that
is, it had nothing to do with whether the defendant did or did
not do the criminal acts alleged in the indictment. We held in
United States v. Kaytso that double jeopardy does not bar a
conviction where the defendant was re-indicted after
dismissal of the first indictment based on the government’s
failure to prove venue in the first trial.23 The reason was that
“[w]hile venue presents a question of fact and must be proved
by the government, it is not an essential element of the
offense,” and “failure to establish venue does not go to guilt
or innocence.”24 Dismissal of the first indictment “cannot be




     21
      United States v. Ruelas-Arreguin, 219 F.3d 1056, 1060 n.1 (9th Cir.
2000). Our attention has also been drawn to United States v. Lozoya,
920 F.3d 1231 (9th Cir. 2019), but that case has been taken en banc and
has no effect on this decision. Nor could it have an effect, since the case
does not modify the rule of Kaytso and Ruelas-Arreguin.
     22
          See United States v. Scott, 437 U.S. 82, 87 (1978).
     23
          Kaytso, 868 F.2d at 1021.
     24
          Id.
                UNITED STATES V. MORAN-GARCIA                13

considered an acquittal and so is not shielded by the double
jeopardy clause.”25

     The decision whether to apply the doctrine of collateral
estoppel, urged by the defense, is within the discretion of the
trial court, but retrial is not necessarily barred and
requirements of fundamental fairness ultimately control.26
Retrial was allowed in Kaytso even though venue was put to
the jury, and the government’s witness could not remember
the exact location where the crime occurred.27 Moran’s case
for collateral estoppel here is weaker than in Kaytso because
the factual question was never put to the jury, so retrial would
not upset a jury determination of a fact.

    Accordingly, we vacate Moran’s conviction, and remand
with instructions for the district court to dismiss the
indictment without prejudice. The district court has
discretion with regard to collateral estoppel, in accord with
the guidance in Kaytso, if that is raised in a motion before it.

   VACATED and REMANDED.




   25
        Id.
   26
        Id. at 1022.
   27
        Id. at 1021–22.
