United States of America v. Robert Turchin

San Francisco, CA - Criminal defense lawyer represented defendant with three counts of fraud involving identification documents; and one count of conspiracy to violate the prohibitions on bribery concerning a program receiving federal funds and the prohibitions on fraud involving identification documents charges.

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 28 U.S.C.

§ 1291 and 18 U.S.C. § 3742(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 18 U.S.C.

§ 1028(a)(1); and (2) one count, under 18 U.S.C. § 371, of

conspiracy to violate (i) the prohibitions on bribery

concerning a program receiving federal funds, see id.

§ 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 18 U.S.C. § 1028(a)(1). See United States v. Deeb, 175

F.3d 1163, 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.” 18 U.S.C. § 1028(a)(1). The California CDLs

that Turchin produced were "identification documents”

within the plain meaning of the statutory definition of that

term. See id. § 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, 967 F.3d 959, 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.” Id. § 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,

788 F.3d 1183, 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. 18 U.S.C. § 1028(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 18 U.S.C. § 371, with the objects of the

conspiracy here being bribery in violation of 18 U.S.C. § 666(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, 309 F.3d 602, 608 (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,” 18 U.S.C. § 371, the Government was not required to

prove that Turchin intended to defraud the United States. See United

States v. Meredith, 685 F.3d 814, 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.” 18 U.S.C. §§ 1028(c)(1), (3)(A),

(B); see also id. § 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.” 18 U.S.C. § 1028(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 18 U.S.C. § 1028(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, 792 F.3d 1087, 1090 (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. Id. (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,

502 U.S. 46, 52, 59 (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, 792 F.3d at 1090.

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, 140 S. Ct. 1575, 1579

(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, 981 F.3d

603, 605 (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, 554 U.S.

237, 247 (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, 910 F.3d 461, 469

(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, 141 S. Ct. 2090, 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.” 18 U.S.C.

§ 1028(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, 464 U.S. 16,

23 (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 18

U.S.C. § 5 ("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. Id. § 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, 531 F.3d 1020, 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.” 18 U.S.C. § 1028(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, 502 U.S. at

52 (quoting Yates v. United States, 354 U.S. 298, 312

(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, 433 F.3d 1148,

1159 (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, 116 F.3d 840, 848 (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, 433 F.3d at 1159

(citing Perez, 116 F.3d at 848). 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, 787 F.2d

1318, 1323 (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.” 18 U.S.C. § 1028(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,” 18 U.S.C. § 666(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, 541 U.S. 600, 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, 578 U.S.

452, 468 (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

18 U.S.C. § 1028(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 id. § 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, 641 F.3d 399, 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, 564 F.3d 1155, 1161 (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,

724 F.3d 1077, 1089 (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, 787 F.2d

at 1323. 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, 906 F.3d 784, 791

(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, 609 F.3d

1046, 1049 (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

sentence in its entirety. We remand for proceedings

consistent with this opinion.



REVERSED IN PART, AFFIRMED IN PART,

VACATED IN PART, AND REMANDED.