United States v. Robert Turchin

                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 

(a)(1) and one count, under 

, of
conspiracy to violate the prohibitions on bribery concerning
a program receiving federal funds under 

(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),
and the government’s showing with respect to the two other
alternatives for federal nexus in § 1028(c)(3)(A) and
§ 1028(c)(3)(B) was at least open to debate by reasonable
jurors, and was not so overwhelming that reversal would
impugn the integrity or fairness of the proceedings.

    The panel nonetheless addressed the sufficiency of the
evidence on the other two legally valid federal nexus
alternatives under § 1028(c) because if the evidence were
insufficient, retrial would be barred by the Double Jeopardy
Clause. The panel held that, on the record at trial, a
reasonable jury could conclude that Turchin’s production of
California driver’s licenses to the particular unqualified
drivers at issue affected interstate commerce under
§ 1028(c)(3)(A).
4               UNITED STATES V. TURCHIN

    Affirming in part, the panel rejected Turchin’s challenge
to the sufficiency of the evidence supporting the federal
nexus element of the alleged conspiracy to violate § 666.
Reviewing for plain error, the panel also rejected Turchin’s
contention that, because there was no evidence that he
actually took any bribes, his conviction for conspiring to
violate § 666(a)(1)(B) and § 666(a)(2) was not supported by
sufficient evidence.

    The panel rejected Turchin’s challenge of the sufficiency
of the evidence to establish his liability under a Pinkerton
theory on count 8, one of the § 1028(a)(1) charges.

    In summary, the panel reversed Turchin’s conviction on
the § 1028(a)(1) counts and his conviction on the conspiracy
count to the extent that the object of the conspiracy was a
violation of § 1028, and remanded for potential retrial of
those charges. The panel affirmed Turchin’s conviction on
the conspiracy count to the extent that the object of the
conspiracy was a violation of § 666(a)(1)(B) and
§ 666(a)(2). The panel vacated Turchin’s sentence in its
entirety. The panel remanded for proceedings consistent
with its opinion.

    Concurring in part and dissenting in part, Judge
Fernandez concurred with the majority’s decision with the
exception of Part III-A. Dissenting as to Part III-A, in which
the majority found plain error in the jury instruction on nexus
to commerce and reversed the conviction on the § 1028(a)(1)
counts, Judge Fernandez wrote that the error was not
obvious, and it did not present an extraordinary circumstance
that should encourage the court of appeals to intervene and
create an issue not pressed upon it by the parties themselves.
                UNITED STATES V. TURCHIN                    5

                        COUNSEL

Meredith Fahn (argued), San Jose, California, for
Defendant-Appellant.

Rosanne L. Rust (argued), Assistant United States Attorney;
Camil A. Skipper, Appellate Chief; McGregor W. Scott,
United States Attorney; United States Attorney’s Office,
Sacramento, California; for Plaintiff-Appellee.


                         OPINION

COLLINS, Circuit Judge:

    Robert Turchin appeals his 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. We have jurisdiction under 

 and 

(a), and we affirm in part,
reverse in part, vacate in part, and remand.

                              I

    Turchin worked as a licensing registration examiner at
the California Department of Motor Vehicles (“DMV”)
office in Salinas, California. As a licensing examiner,
Turchin was able to access the DMV database and enter test
scores for applicants seeking California commercial driver’s
licenses (“CDLs”). The Government’s theory at trial was
that Mangal Gill, who owned a truck-driving school, paid
Turchin and another DMV employee, Emma Klem, to enter
false information into the DMV database stating that
specified persons identified by Gill had obtained passing
scores on DMV exams required for applicants seeking
6                UNITED STATES V. TURCHIN

CDLs. After undercover Department of Homeland Security
(“DHS”) operatives obtained illegitimate CDLs through this
scheme, Turchin was indicted, as were Gill, Klem, and
various other participants. Specifically, Turchin was
charged with (1) three counts of fraud involving
identification documents in violation of 

(a)(1); and (2) one count, under 

, of
conspiracy to violate (i) the prohibitions on bribery
concerning a program receiving federal funds, see 

§ 666(a)(1)(B) and (a)(2); and (ii) the prohibition on fraud
involving identification documents, see id. § 1028(a)(1).

    At Turchin’s jury trial, the DHS operatives testified that
they were able to obtain CDLs without passing the required
tests and that they had received hard copies of those licenses
in the mail. Klem, who had pleaded guilty, testified against
Turchin, stating that Gill paid her to alter DMV records by
entering false passing test scores and that he told her that, if
she could not update a given record, he would “have Robert
[Turchin] finish it.” Salinas DMV supervisor Julie Ferreira
testified that she noticed on multiple occasions that Turchin
entered passing test scores for applicants who had not passed
required tests.

    The prosecution also offered evidence of text messages
containing the California driver’s license numbers of
particular individuals, which Gill sent to Turchin shortly
before Turchin updated the corresponding records for those
persons with false passing scores. For example, Gill sent at
least three texts containing license numbers to Turchin on
March 27–28, 2015, and later in the day on March 28,
Turchin updated the corresponding DMV records with
phony passing scores. Then, on March 29, Turchin sent Gill
a text that listed the last three digits of these license numbers,
together with the notations “closed” and “postage due.” A
                   UNITED STATES V. TURCHIN                             7

search of Turchin’s SUV a few days later revealed at least
four envelopes stuffed in a corner of the cargo trunk area.
Those envelopes contained a total of over $10,000 in various
denominations. Klem testified that Gill similarly paid her
cash in envelopes.

    The jury convicted Turchin on all counts, and it made a
special finding that Turchin had conspired both to violate the
bribery statute and to commit identity fraud.

                                   II

    Viewing the underlying facts in the light most favorable
to the verdict, we review de novo Turchin’s argument that
his actions fell outside the “scope of the conduct” covered
by 

(a)(1). See United States v. Deeb, 

, 1166–67 (9th Cir. 1999). 1 We reject this
contention.

    Turchin was charged under the language of § 1028(a)(1)
that imposes punishment on anyone who “knowingly and
without lawful authority produces an identification
document.” 

(a)(1). The California CDLs
that Turchin produced were “identification documents”
within the plain meaning of the statutory definition of that
term. See 

 § 1028(d)(3) (“identification document”
includes a “document made or issued by or under the

    1
      Turchin did not move for a judgment of acquittal below, nor did
he submit proposed jury instructions reflecting all of the various legal
requirements that he now insists the Government should have met.
“[A]rguably we could deem [such] issue[s] forfeited and therefore
subject only to plain error review,” but to the extent that the Government
has forfeited any such forfeiture objections, “we will proceed to consider
th[ese] issue[s] de novo.” United States v. Kuzma, 

, 966 n.6
(9th Cir. 2020).
8               UNITED STATES V. TURCHIN

authority of . . . a State . . . which, when completed with
information concerning a particular individual, is of a type
intended or commonly accepted for the purpose of
identification of individuals”). Given that Turchin knew that
the recipients had not completed the eligibility requirements
for these CDLs, he knowingly produced those identification
documents “without lawful authority.” 

 § 1028(a)(1). To
the extent that Turchin contends that an identification
document is produced “without lawful authority” only when
it is issued to a “misidentified” person, there is no basis in
the statutory language for imposing such a limitation. There
are any number of ways in which the requisite “lawful
authority” for producing an identification document might
be lacking, and nothing in the statute limits its coverage to
that specific situation. See United States v. Osuna-Alvarez,

, 1185–86 (9th Cir. 2015) (rejecting narrow
reading of “without lawful authority” in 18 U.S.C. § 1028A,
which defines aggravated identity theft, and explaining that
“[t]his language clearly and unambiguously encompasses
situations like the present, where an individual grants the
defendant permission to possess his or her means of
identification, but the defendant then proceeds to use the
identification unlawfully”).

    Turchin also argues that the documents he produced do
not qualify as “false identification documents” as defined in
§ 1028(d)(4), but even assuming that is true, it makes no
difference here. Turchin was charged with, and convicted
of, violating the portion of § 1028(a)(1) that criminalizes
producing “identification document[s]” without lawful
authority, not the portion of that subsection that proscribes
producing “false identification document[s]” without lawful
authority. 

(a)(1) (emphasis added).
                   UNITED STATES V. TURCHIN                             9

                                   III

    Turchin contends that the Government failed to establish
the requisite nexus to commerce to support either the alleged
violations of § 1028 or the alleged conspiracy to violate
§ 1028 and § 666. We agree that the Government did not
properly establish the requisite nexus to support the § 1028
charges or the conspiracy charge to the extent that it is based
on § 1028, but not for the reasons that Turchin identifies.
We find no reversible error as to the conviction for
conspiring to violate § 666. 2

                                   A

    Any charge of unlawful production of an identity
document under § 1028(a)(1) requires a showing of a federal
nexus in one of three alternative ways: (1) 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”;
     2
       Turchin was charged and convicted under the portion of the
conspiracy statute that punishes conspiring “to commit any offense
against the United States,” see 

, with the objects of the
conspiracy here being bribery in violation of 

(a)(1)(B),
(a)(2) and production of identification documents without lawful
authority in violation of § 1028(a)(1). The jury made a specific finding
that there was both a conspiracy to violate § 1028 and a conspiracy to
violate § 666. Therefore, any error as to the conspiracy to violate § 1028
would not affect the conviction for conspiring to violate § 666. Cf.
United States v. Choy, 

 (9th Cir. 2002) (general verdict
on multi-object conspiracy must be vacated if one of the objects was
based on a legally invalid theory). Moreover, because Turchin was not
charged under the separate clause that prohibits conspiracy “to defraud
the United States,” 

, the Government was not required to
prove that Turchin intended to defraud the United States. See United
States v. Meredith, 

, 825 n.2 (9th Cir. 2012) (distinguishing
between the “offense” clause and “defraud” clause of § 371).
10                 UNITED STATES V. TURCHIN

(2) the prohibited production “is in or affects interstate or
foreign commerce”; or (3) the identification document “is
transported in the mail in the course of the production . . .
prohibited by this section.” 

(c)(1), (3)(A),
(B); see also 

 § 1028(a). 3

    The jury was instructed on all three alternatives, but in
his opening brief Turchin challenged the legal and factual
adequacy of the Government’s showing only with respect to
the second and third alternatives. The Government’s
answering brief likewise confined its discussion to the
second and third alternatives and never mentions the first.
At first blush, that is not surprising, because the first
alternative is obviously inapplicable as a matter of law: the
California CDLs at issue here were not documents “issued
by or under the authority of the United States” (such as a
passport), nor is the California DMV the “sponsoring entity
of an event designated as a special event of national
significance.” 

(c)(1). In examining the
record on this issue of federal nexus, however, we noted that
the district court’s written and oral jury instructions both
described the first federal nexus alternative as follows: “the
identification document . . . was or appeared to be issued by
or under authority of the State of California, or a political
subdivision of the State” (emphasis added). Accordingly, we
asked the parties to submit supplemental briefs addressing
whether this instruction was a plain error that we should
consider even though the parties had not called it to our
attention. See FED. R. CRIM. P. 52(b) (“A plain error that

     3
       Section 1028(c) also states that the requisite federal nexus is
automatically met when the charged offense involves possession of an
identification document, with intent that it be used to defraud the United
States, in violation of § 1028(a)(4), see 

(c)(2), but that
alternative obviously has no application in the context of a charge of
unlawful production in violation of § 1028(a)(1).
                 UNITED STATES V. TURCHIN                     11

affects substantial rights may be considered even though it
was not brought to the court’s attention.”). Turchin has
argued, in his supplemental brief, that the § 1028(c)(1)
instruction was plainly erroneous and warrants reversal. In
its supplemental brief, the Government asserts that we
should decline to consider this issue and that, if we do
address it, we should hold that the instruction rests on a
legally correct interpretation of § 1028(c)(1). We agree with
Turchin.

                               1

    The Government contends that we should not address
any issue about § 1028(c)(1) given that Turchin failed to
argue in his opening brief that the district court’s instructions
concerning that section were plainly erroneous. See, e.g.,
United States v. Salman, 

 (9th Cir.
2015). But the rule that we will not consider “matters on
appeal that are not specifically and distinctly argued in
appellant’s opening brief” is not ironclad, and we have
departed from it when, inter alia, the “failure to do so would
result in manifest injustice” or the “defense of the opposing
party” has not been prejudiced. 

 (citations and internal
quotation marks omitted). We conclude that it is appropriate
to exercise our discretion to depart from that rule here.

    As an initial matter, the asserted plain error in the
§ 1028(c)(1) instruction is not an entirely new “matter,”
because the issue of federal nexus under § 1028(c) was
raised in the opening brief, thereby requiring us to consider
whether there was prejudicial error in the application of that
statute. The Government itself noted in its answering brief
that § 1028(c) provides alternative options for finding a
federal nexus, and it conspicuously relied on only two of the
three enumerated in the statute, namely, those listed in
§ 1028(c)(3)(A) and § 1028(c)(3)(B). Fairly construed, the
12               UNITED STATES V. TURCHIN

Government’s arguments rested on the implicit premise that
the third option in § 1028(c)(1) was not applicable here:
indeed, if the opposite were true, and the jury had been
properly permitted to rest its verdict on § 1028(c)(1), then
Turchin’s claims of evidentiary insufficiency concerning the
other alternatives would be harmless and we could not grant
Turchin relief on those claims. See Griffin v. United States,

 (1991). In short, we could not properly
dispose of the issues that the parties raised in this appeal
without examining the record to determine which of the three
options were presented to the jury and in what manner. And
upon doing so, we noted that the Government had relied on
all three alternatives below, and that it affirmatively argued
to the jury, in accordance with the instructions, that the first
alternative was satisfied here because the identifications
were “issued under the authority of some state government”
(emphasis added). Accordingly, whether or not the parties
specifically called § 1028(c)(1) to our attention, some
consideration of that subsection was unavoidably embedded
in the resolution of the issues that were presented here.

    On this record, we conclude that consideration of this
embedded sub-issue is necessary to avoid manifest injustice
and that the Government has not been prejudiced. Having
been required by the parties’ arguments to examine the
record concerning how the § 1028(c) issue was presented to
the jury, we cannot be expected to close our eyes to the rather
obvious and prejudicial mistake that stared out at us and that,
as we explain below, meets all of the requirements of the
plain-error doctrine. Moreover, because the parties have
been allowed to submit supplemental briefing, the
Government has had a full and fair opportunity to address
the merits of the issue. See Salman, 

.
Although the Government notes that it did not have the
opportunity to address this issue at oral argument, it did not
                 UNITED STATES V. TURCHIN                    13

request further argument in its brief. And given that the
Government’s position on the merits is plainly lacking in
merit, we perceive no need to sua sponte reset this case for
argument.

    The Government also argues that our consideration of
the § 1028(c)(1) issue would violate the “principle of party
presentation,” under which a reviewing court generally
“rel[ies] on the parties to frame the issues for decision.”
United States v. Sineneng-Smith, 

(2020). But that sub-issue is already embedded in the issues
that the parties have framed for our decision, and it would be
manifestly unjust not to consider it. More broadly, the
Government’s expansive reading of Sineneng-Smith seems
hard to square with the language and purpose of Rule 52(b),
which expressly allows courts to “consider[]” a “plain error
that affects substantial rights . . . even though it was not
brought to the court’s attention.” FED. R. CRIM. P. 52(b)
(emphasis added); cf. Barrados-Zarate v. Barr, 

 (7th Cir. 2020) (noting that “[s]ome statutes and
rules permit review for plain error, but the Immigration and
Nationality Act lacks such an exception to the norm of party
presentation”); cf. also Greenlaw v. United States, 

 (2008) (“This Court has indeed noticed, and
ordered correction of, plain errors not raised by defendants,
but we have done so only to benefit a defendant who had
himself petitioned the Court for review on other grounds.”).
In Sineneng-Smith, by contrast, the panel sua sponte raised
issues that the parties had not raised, and it expressly refused
to apply the strict “plain error” standard that the Government
argued would apply to those arguments and could not be
met. United States v. Sineneng-Smith, 

(9th Cir. 2018). Given that—as we explain below—the
demanding standards of Rule 52(b) are satisfied here—our
consideration of the plain error concerning the § 1028(c)(1)
14               UNITED STATES V. TURCHIN

issue bears no resemblance to the “radical transformation”
of the case undertaken in Sineneng-Smith. 140 S. Ct. at
1581–82.

                               2

    We disagree with the Government’s argument that the
jury instruction’s interpretation of § 1028(c)(1) was not
plain error. The standards for evaluating “plain error” were
recently summarized by the Supreme Court as follows:

       To establish eligibility for plain-error relief, a
       defendant must satisfy three threshold
       requirements. First, there must be an error.
       Second, the error must be plain. Third, the
       error must affect “substantial rights,” which
       generally means that there must be “a
       reasonable probability that, but for the error,
       the outcome of the proceeding would have
       been different.” If those three requirements
       are met, an appellate court may grant relief if
       it concludes that the error had a serious effect
       on “the fairness, integrity or public reputation
       of judicial proceedings.”

Greer v. United States, 

, 2096–97 (2021)
(citations omitted) (emphasis in original). All of these
requirements are satisfied in this case.

    As relevant here, § 1028(c)(1) 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.”          18 U.S.C.
                  UNITED STATES V. TURCHIN                        15

§ 1028(c)(1). 4 The Government notes that, by using the term
“identification document,” this provision carries over the
definition of that term in § 1028(d)(3), which provides:

        the term “identification document” means a
        document made or issued by or under the
        authority of the United States Government, a
        State, political subdivision of a State, a
        sponsoring entity of an event designated as a
        special event of national significance, a
        foreign government, political subdivision of
        a foreign government, an international
        governmental or an international quasigovernmental organization which, when
        completed with information concerning a
        particular individual, is of a type intended or
        commonly accepted for the purpose of
        identification of individuals.

Id. § 1028(d)(3). The Government argues that, when
§ 1028(c)(1)’s federal nexus provision refers to the subset of
documents described in § 1028(d)(3) that are issued by “the
United States” or by a “sponsoring entity of an event
designated as a special event of national significance,” id.
§ 1028(c)(1), the phrase “United States” refers “broadly to
the United States and all of its component parts, including
the States” (emphasis added). That is wrong, and plainly so.

    Nothing in the text of § 1028(c)(1) remotely suggests
that, in using the familiar term “United States” to refer to the
entity under whose “authority” the identification was issued,

    4
     Section 1028(c)(1) also contains an additional clause concerning
“document-making implement[s],” but that clause has no application to
Turchin’s case.
16                  UNITED STATES V. TURCHIN

Congress intended to depart from the ordinary referent of
that phrase, which is the national government, and to instead
refer to each of the 50 State governments as well. 5 On the
contrary, the obvious difference in language between
§ 1028(c)(1) and § 1028(d)(3) confirms that the phrase
“United States” is used in accordance with its ordinary
meaning. The definition of “identification document” in
§ 1028(d)(3) broadly includes identifying documents that
are issued by a wide range of governmental entities,
including federal, foreign, and international agencies, as well
as “a State, [or a] political subdivision of a State.” 

(d)(3). But in identifying the subset of documents
from that enumerated list that, without more, automatically
establish a sufficient federal nexus, § 1028(c)(1) includes
only two of the items on § 1028(d)(3)’s list and omits all of
the others—that is, it includes only identification documents
“issued by or under the authority of [1] the United States or
[2] a sponsoring entity of an event designated as a special
event of national significance.” Id. § 1028(c)(1). The
obvious omission of the phrase “a State, [or a] political
subdivision of a State” from the smaller list in § 1028(c)(1)
confirms that an identification document produced by a State
would not be sufficient to satisfy the federal nexus described
in § 1028(c)(1). See Russello v. United States, 

 (1983) (“Where Congress includes particular language in
one section of a statute but omits it in another section of the
same Act, it is generally presumed that Congress acts
intentionally and purposely in the disparate inclusion or

     5
      The criminal code’s definition of the “United States” only defines
how that term should be understood when it is used “in a territorial
sense,” and the Government does not rely on that definition here. See 

 (“The term ‘United States,’ as used in this title in a territorial
sense, includes all places and waters, continental or insular, subject to
the jurisdiction of the United States, except the Canal Zone.”).
                    UNITED STATES V. TURCHIN                            17

exclusion.”) (simplified). For such a document, the required
federal nexus would exist only if there were some other
federal connection, such as an effect on interstate commerce
or a use of the U.S. mail. 

 § 1028(c)(3)(A), (B). 6

    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 first two elements of the “plain error”
test—that there be an error and that it be plain—are thus
satisfied here.

     Turning to the next element of that test, we conclude that
this plain error clearly affected Turchin’s “substantial
rights.” Because it was undisputed at trial that the
identification documents Turchin created were “or appeared
to be issued by or under authority of the State of California,”
it is not only possible, but entirely probable, that the jury

     6
       The Government contends that, because § 1028(c)(1) uses the
phrase “United States” rather than (as in § 1028(d)(3)) “United States
Government,” Congress thereby must have intended that § 1028(c)(1)
would also reach documents issued by each of the 50 States. But the
terms “United States” and “United States Government” are
interchangeable in this context, and the deletion of the word
“Government” does not suggest that the remaining term “United States”
is suddenly being used in the unusual sense that the Government posits
here. Indeed, we have treated the references to documents issued by the
“United States” or the “United States Government” in the various
subsections of § 1028 as interchangeably referring to documents that are
or appear to be issued “from a federal agency.” See United States v.
Fuller, 

, 1025–26 (9th Cir. 2008). Had Congress intended
identification documents issues by state and local governments to be
included in § 1028(c)(1), it presumably would have used the same clear
phrase that it used in § 1028(d)(3)’s lengthier list, viz., “a State, [or a]
political subdivision of a State.” 

(d)(3).
18               UNITED STATES V. TURCHIN

relied on the defective instruction in finding that the requisite
federal nexus element was met. Nothing in this record
permits us to say that the jury must have relied on one of the
other two alternatives in the instruction, as opposed to the
instruction’s plainly erroneous description of § 1028(c)(1).
Because it is “‘impossible to tell which ground the jury
selected,’” the error is prejudicial. See Griffin, 

 (quoting Yates v. United States, 

(1957)); see also id. at 59 (general verdict must be set aside
when “jurors have been left the option of relying upon a
legally inadequate theory,” as opposed to a factually
inadequate theory).

     Lastly, we conclude that the error here “seriously affects
the fairness, integrity or public reputation of judicial
proceedings.” United States v. Alferahin, 

 (9th Cir. 2006) (simplified). We have recognized that
where it is “extremely unlikely that, if properly instructed,
the jury would not have convicted” the defendant, see United
States v. Perez, 

 (9th Cir. 1997) (en banc),
then “the greater threat to the integrity and fairness of
judicial proceedings would arise from the reversal of a
conviction on flawed jury instructions rather than from
affirming an imperfect verdict,” Alferahin, 

(citing Perez, 

). Here, under the proper
instructions, the jury could not have relied on § 1028(c)(1).
The Government’s showing with respect to the two other
alternatives in § 1028(c)(3)(A) and § 1028(c)(3)(B) was at
least open to debate by reasonable jurors, see infra at 19–20
& n.7, and was not so overwhelming that reversal here would
impugn the integrity or fairness of the proceedings. Finally,
we think that the integrity of these proceedings is best
preserved by not allowing the Government to tell the jury
that it can find federal nexus based solely on a flawed
reading of § 1028(c)(1) and then to fail to tell this court,
                 UNITED STATES V. TURCHIN                     19

when the federal nexus issue is raised on appeal, that it did
so.

    We therefore reverse Turchin’s convictions on counts 8
through 10, and on count 2 to the extent that it relies on
§ 1028 as the object of the charged conspiracy.

                               B

    Because, however, Turchin challenges the factual
sufficiency of the Government’s evidence on both of the
other two legally valid federal nexus alternatives, we must
resolve that issue despite our reversal of his convictions that
are based on § 1028. See United States v. Lewis, 

 (9th Cir. 1986) (“Even though we reverse that
conviction, we must address the sufficiency of the evidence
supporting it, for if the evidence were insufficient, retrial is
barred by the Double Jeopardy Clause.”). To reject his
sufficiency challenge, we need only determine whether
sufficient evidence supported one of the two legally
sufficient alternatives. See Griffin, 502 U.S. at 56–60.

    We conclude that, on the record at trial, a reasonable jury
could conclude that Turchin’s production of CDLs to the
particular unqualified drivers at issue “affects interstate . . .
commerce.” 

(c)(3)(A). The testimony
established that a “Class A” CDL would allow its holder to
“drive a commercial tractor trailer vehicle on the interstate
highways” and a “Class B” CDL would permit its holder to
drive a “commercial passenger vehicle” on such highways.
A jury could reasonably conclude that this connection to
interstate commerce, although potentially modest and
20                 UNITED STATES V. TURCHIN

indirect, established that Turchin’s production of the licenses
affected interstate commerce. 7

                                   C

    We likewise reject Turchin’s challenge to the sufficiency
of the evidence supporting the federal nexus element of the
alleged conspiracy to violate § 666. The required nexus
under § 666 is that the person who solicits the illicit thing of
value, or who is intended to be influenced or rewarded by
the payment, must be an “agent,” 

(a)(1)(B),
(2), of an “organization, government, or agency [that]
receives, in any one year period, benefits in excess of
$10,000 under a Federal program involving a grant, contract,
subsidy, loan, guarantee, insurance, or other form of Federal
assistance,” id § 666(b). The Government presented
sufficient evidence at trial to establish this element by
showing that, for fiscal year 2012–2013, the California
DMV received $739,000 from the federal Government and
by introducing similar evidence concerning subsequent
fiscal years. See Sabri v. United States, 

, 604–
08 (2004). Contrary to what Turchin contends, the
Government was not required to prove that he knew the
DMV received federal funds. See Torres v. Lynch, 

 (2016) (“‘[T]he existence of the fact that confers

      7
        Because this alternative was supported by sufficient evidence, we
need not decide whether the Government presented sufficient evidence
to show that the identification documents at issue were “transported in
the mail in the course of the production . . . prohibited” by § 1028, see

(c)(3)(B) (emphasis added), as opposed to their
“transfer,” which is conduct covered by a separate subsection under
which Turchin was not charged, see 

 § 1028(a)(2). The evidence at
trial that the documents were transported in the U.S. mail in the course
of their transfer is overwhelming, but it is less clear that the mailings
cited by the Government occurred in the course of their production.
                    UNITED STATES V. TURCHIN                            21

federal jurisdiction need not be one in the mind of the actor
at the time he perpetrates the act made criminal by the federal
statute.’”) (citation omitted).

                                    IV

    Turchin further contends that, because there is no
evidence that he actually took any bribes, his conviction for
conspiring to violate § 666(a)(1)(B) and § 666(a)(2) is not
supported by sufficient evidence. Reviewing for plain error,
see United States v. Pelisamen, 

, 408–09 & n.6
(9th Cir. 2011), 8 we reject this contention.

    The crime of conspiracy “does not require completion of
the intended underlying offense,” but only an agreement to
commit the offense and an overt act in furtherance of that
agreement. United States v. Iribe, 

 (9th
Cir. 2009). Here, there was sufficient circumstantial
evidence from which a jury could reasonably conclude,
beyond a reasonable doubt, that Turchin had agreed to accept
a thing of value—namely, cash—for entering fraudulent
passing scores for applicants seeking California CDLs. As
Turchin concedes, ample evidence showed that a truckschool owner, Mangal Gill, took money from his students to
help them obtain such licenses without having to pass the
required exams. The Government presented evidence that
Gill sent messages to Turchin with California driver’s
license numbers and that Turchin fraudulently updated the
corresponding applications. The Government also presented
evidence that Turchin sent messages to Gill listing portions
of California driver’s license numbers with the comment
“postage due.” Days after those messages were sent, law

     8
       In its appellate brief, the Government did raise Turchin’s failure to
raise this particular issue below. Cf. supra note 1.
22              UNITED STATES V. TURCHIN

enforcement officers found more than $10,000 in cash in
envelopes in Turchin’s car. The Government also presented
testimony from Emma Klem, one of Turchin’s coworkers,
who said that she was also paid by Gill for similar fraudulent
activity and that he paid her cash in envelopes. Although
Turchin provides potential alternative readings of the
circumstantial evidence, the jury was not required to accept
those explanations.

                              V

    As to the § 1028(a)(1) charge in count 8, Turchin was
convicted based on a so-called Pinkerton theory, under
which “a defendant charged with participating in a
conspiracy may be subject to liability for offenses committed
as part of that conspiracy, even if the defendant did not
directly participate in each offense.” United States v. Grasso,

 (9th Cir. 2013). Turchin challenges the
sufficiency of the trial evidence to establish such liability
and, even though we reverse his conviction on count 8 for
other reasons, we must address this issue. Lewis, 

. Reviewing for plain error, see supra note 8, we
reject this argument.

    It was undisputed at trial that Klem, rather than Turchin,
fraudulently changed the DMV record for the driver’s
license at issue in count 8. A jury could reasonably find,
beyond a reasonable doubt, that there was a conspiracy
between Klem and Turchin to work with Gill in obtaining
fraudulent California CDLs; that Klem committed the
conduct in count 8 during and in furtherance of that
conspiracy; and that such action “fell within the scope of the
unlawful agreement and could be ‘reasonably foreseen as a
necessary or natural consequence of the unlawful
agreement.’” United States v. Gonzalez, 

(9th Cir. 2018) (citation omitted). In particular, the evidence
                   UNITED STATES V. TURCHIN                          23

showed that both Klem and Turchin entered false passing
scores for license applicants, and that Gill told Klem that if
she could not update one of the files, she should “just put it
to the side and [he]’ll have Robert [Turchin] finish it.” See
supra at 6. At the very least, there was no plain error.

                                  VI

    In view of our reversal of Turchin’s conviction on the
§ 1028 counts, and of his conviction on the conspiracy
charge to the extent that it relies on § 1028, we decline to
address the sentencing issues raised by Turchin. Given our
disposition, the “sentencing package” has become
“unbundled.” United States v. Avila-Anguiano, 

 (9th Cir. 2010). We therefore vacate Turchin’s
sentence in its entirety.

                          …

    We reverse Turchin’s convictions on counts 8, 9, and 10,
and his conviction on count 2 to the extent that the object of
the conspiracy was a violation of § 1028, and we remand for
potential retrial of those charges if the Government elects to
do so. We affirm Turchin’s conviction on count 2 to the
extent that the object of the conspiracy was a violation of
§ 666(a)(1)(B) and § 666(a)(2). 9 We vacate Turchin’s



    9
       We leave it to the district court to address on remand whether, if
the Government is permitted to retry count 2 based on an alleged
conspiracy to violate § 1028, that count must then be retried in its
entirety. Cf. United States v. Guzman, 

, 1119–20 (9th Cir.
1988) (“The double jeopardy clause precludes the government from
dividing a single conspiracy into multiple charges and pursuing
successive prosecutions against the defendant.”).
24                    UNITED STATES V. TURCHIN

sentence in its entirety. We remand for proceedings
consistent with this opinion.

  REVERSED IN PART, AFFIRMED IN PART,
VACATED IN PART, AND REMANDED.



FERNANDEZ, Circuit Judge, concurring in part and
dissenting in part:

     I concur with the majority’s decision with the exception
of Part III-A, 1 as to which I dissent for two reasons. I note
first that the “error” discovered by the majority was not one
that I think of as obvious in the normal sense of the word.
Indeed, it was not argued by the parties’ lawyers in the
district court, or perceived by the district court judge. Nor
was it argued by the parties’ lawyers on appeal, or for that
matter raised by us at oral argument on October 13, 2020, or
for nearly a year thereafter. Beyond that, I surely do not see
it as presenting an extraordinary circumstance 2 that should
encourage this court to intervene and create an issue not
pressed upon it by the parties themselves. 3 Moreover, as I
see it, even if the error appears rather plain now that it has
been pointed out by us, the exercise of our discretion to
overturn a conviction requires more than that. In that
respect, I do not agree that on this record Turchin’s
substantial rights were violated, or that our failure to raise

     1
      I also dissent as to other parts of the majority decision insofar as
they rely on the majority decision regarding Part III-A.
     2
      United States v. Sineneng-Smith, __ U.S. __, __, 

, 

 (2020).
     3
         

 __ U.S. at __, 

.
                UNITED STATES V. TURCHIN                      25

the issue and overturn his convictions will have a baleful
effect upon judicial proceedings. See United States v. Olano,

, 732–37, 

, 1777–1779, 

 (1993).

   Thus, I respectfully concur in part and dissent in part.