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Date: 03-05-2024
Case Style:
Case Number: 22-50051 22-50046
Judge: Patrick J. Bumatay
Court: UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT (San Fracsisco County)
Plaintiff's Attorney: he United States Attorney’s Office in San Francisco
Defendant's Attorney:
Description:
This case centers on a conspiracy to kidnap Mexican
nationals seeking to enter the United States illegally and
extort ransom payments from their families. The extortion
plot followed a pattern. The victims would arrive in
Mexicali, Mexico—right on the border with the United
States—looking to enter the United States. There, one or
more women would approach them and offer a quick and
safe way to cross the border. After agreeing to a price, the
victims met their smugglers at a hotel before setting off for
the border. But they never reached the United States.
Instead, the smugglers kidnapped the Mexican nationals and
demanded ransom payments from their family members.
Family members in the United States would then go to a
Walmart, Target, or Lowe’s to hand over the ransom
payments to Lemus, Almendarez, and others.
The Federal Bureau of Investigation learned about the
extortion plot. During the ensuing investigation, FBI agents
followed Defendants and twice observed them collect what
they believed to be ransom payments. Investigators also
believed Defendants collected money from family members
on other occasions.
Based on this, Defendants and a co-conspirator were
indicted on one count of conspiracy under 18 U.S.C. § 371
and one count of aiding and abetting the receipt of the
proceeds of extortion under 18 U.S.C. §§ 880, 2(a). Lemus
was also charged with one count of receiving the proceeds
of extortion under 18 U.S.C. § 880. The co-conspirator
UNITED STATES V. LEMUS 5
pleaded guilty before trial. Trial lasted three days, and the
jury found the Defendants guilty on all counts.
Defendants now appeal their convictions and sentences.
In this opinion, we address the argument that their § 880
convictions were based on an erroneous jury instruction,
which also affected their § 371 conspiracy convictions.
Because they did not object to the jury instruction before the
district court, we review their claim for plain error. See
United States v. Michell, 65 F.4th 411, 414 (9th Cir. 2023)
(applying plain-error review to a claim that jury instruction
on knowledge was erroneous). While Defendants ask us to
review this claim de novo as it involves only a question of
pure law, see United States v. McAdory, 935 F.3d 838, 841–
42 (9th Cir. 2019), in our discretion, we decline to do so. To
reverse on plain error, there must be (1) an error, (2) that is
plain, (3) that affects substantial rights, and (4) that seriously
affects the fairness, integrity, or public reputation of judicial
proceedings. See United States v. Yijun Zhou, 838 F.3d
1007, 1012 (9th Cir. 2016).
II.
A.
Federal law not only prohibits various forms of
extortion, but it also broadly prohibits taking any part in the
handling of the proceeds of extortion. 18 U.S.C. § 880.
Under § 880, “[a] person who receives, possesses, conceals,
or disposes of any money or other property which was
obtained from the commission of any offense under this
chapter that is punishable by imprisonment for more than 1
year, knowing the same to have been unlawfully obtained,”
faces up to three years’ imprisonment. Id.
6 UNITED STATES V. LEMUS
To violate § 880, the money at issue must have been
obtained from threats or extortion-related offenses. The
term “any offense under this chapter” refers to violations of
Chapter 41 of Title 18, which covers various offenses
ranging from threats against the President, id. § 871; to
blackmail, id. § 873; to kickbacks, id. § 874; and to mailing
threatening communications, id. §§ 875–77. This case
involves extortion under 18 U.S.C. § 875(a), which
criminalizes transmitting “any communication containing
any demand or request for a ransom or reward for the release
of any kidnapped person.”
To convict Defendants of violating § 880, the jury
instruction here required the jury to find three elements: that
(1) “the defendant received, possessed, or concealed
money;” (2) “the money was obtained from the transmission
in interstate or foreign commerce of a communication that
contained a demand for ransom for the release of a
kidnapped person;” and (3) “the defendant knew the money
had been unlawfully obtained.”
We’re concerned with the third element here—the
knowledge requirement.
Defendants argue that § 880 requires that they knew the
money at issue was obtained from the demand for ransom—
not just that the money was “unlawfully obtained.” They
base this argument on the statute’s use of the words
“knowing the same,” which they construe as requiring
knowledge for the entire preceding phrase “any money or
other property which was obtained from the commission of
[extortion].” So they argue that “knowing the same”
necessarily mandates or requires that a defendant know that
the money possessed or received was obtained from
extortion.
UNITED STATES V. LEMUS 7
The government disagrees. In its view, the phrase “the
same” is modified by knowledge that the money involved
was “unlawfully obtained.” Thus, to the government,
§ 880’s knowledge requirement is satisfied if the defendant
knew the money received was “unlawfully obtained”—
regardless of whether the defendant understood that the
illegal conduct was extortion.
B.
So this question turns on the plain meaning of the words
“knowing the same.” See B.P. P.L.C. v. Mayor & City
Council of Baltimore, 141 S. Ct. 1532, 1537 (2021) (“When
called on to interpret a statute,” courts “generally seek[] to
discern and apply the ordinary meaning of its terms at the
time of their adoption.” (simplified)). To begin, “the same”
means “something that has previously been defined or
described” or “[b]eing the one previously mentioned or
indicated.” See Merriam-Webster’s New International
Dictionary 2007 (3d ed. 1993); American Heritage
Dictionary 1595 (3d 1992). In other words, “the same” is
just shorthand for something that has already been
mentioned, defined, or described.
To see what’s been previously mentioned, defined, or
described, we need to examine each clause of the statute.
The first clause of § 880 contains the actus reus—prohibiting
“receiv[ing], possess[ing], conceal[ing], or dispos[ing]” of
certain money or property. The second clause explains the
object of the actus reus or the type of proceeds involved—
“money or other property which was obtained from the
commission of any offense under this chapter.” And the last
clause, the clause at issue, establishes the mens rea
requirement—that the defendant know “the same” was
8 UNITED STATES V. LEMUS
“unlawfully obtained.” Thus, “the same” must refer to
something in the previous two clauses.
When the clauses are read together, it becomes clear that
the defendant must only possess knowledge that the money
or property at issue is “unlawfully obtained.”
First, notice that “the same” must refer to the object of
the actus reus because it is an adjectival phrase rather than
an adverbial one. Second, observe that “the same” is
modified by knowledge that the object was “unlawfully
obtained.” So “unlawfully obtained” applies to the entire
object of the actus reus. To illustrate how this works, let’s
plug that definition into the statutory language. In longform,
§ 880 would read like this:
A person who receives, possesses, conceals,
or disposes of any money or other property
which was obtained from the commission of
any offense under this chapter that is
punishable by imprisonment for more than 1
year, knowing any money or other property
which was obtained from the commission of
any offense under this chapter to have been
unlawfully obtained, shall be imprisoned not
more than 3 years, fined under this title, or
both.
§ 880 (modified).
Read as a whole, the phrase “the same” is simply a short
description of what must be known by the defendant as
“unlawfully obtained.” As for the phrase “unlawfully
obtained,” it requires that a defendant receive something
“not lawful: contrary to or prohibited by law: not authorized
UNITED STATES V. LEMUS 9
or justified by law: [or] not permitted or warranted by law.”
Merriam-Webster’s New International Dictionary 2502 (3d
ed. 1993) (expressly applying this definition to unlawful
“money”).
Under this reading, a defendant only needs to know that
the money received, which must be obtained through threats
or extortion to fall within § 880, was obtained in any manner
contrary to or prohibited by law. Specific knowledge of the
money’s origin as proceeds of extortion or threats is
unnecessary. If Congress wanted the mens rea requirement
to include knowledge of the extortion, it could have easily
added “from extortion” to “unlawfully obtained.” It did not.
And that should end our inquiry.
Requiring a defendant to know that the money received
be from extortion, as Defendants contend, would make the
phrase “unlawfully obtained” superfluous. If § 880 requires
such knowledge, then the statute’s express reference to
“unlawfully obtained” would serve no purpose because
“unlawfully obtained” encompasses extortion and other
crimes. Simply, if the defendant knew the proceeds were
from extortion, then the defendant would necessarily know
that the proceeds were “unlawfully obtained.” Thus, that
phrase would do no work. And we should avoid reading a
provision that would make any part of it “inoperative or
superfluous, void or insignificant.” Corley v. United States,
556 U.S. 303, 314 (2009) (simplified). By recognizing that
knowledge of the money’s origin be from any “unlawful[]”
activity rather than from extortion or threats in particular, we
give full meaning to all the text of § 880.
So we join the Fifth Circuit in concluding that § 880 only
requires knowledge that the money or property at issue be
10 UNITED STATES V. LEMUS
“unlawfully obtained.” See United States v. Anderson, 932
F.3d 344 (5th Cir. 2019).
C.
Avoiding § 880’s plain language, Defendants look
elsewhere to justify their interpretation.
First, they contend that we must look to the
“background” principle that “courts interpret criminal
statutes to require that a defendant possess a mens rea, or
guilty mind, as to every element of an offense.” Torres v.
Lynch, 578 U.S. 452, 467 (2016). According to the Supreme
Court, it’s important to do this to “separat[e] wrongful from
innocent acts” and ensure that the defendant had a “wrongful
mental state.” Rehaif v. United States, 139 S. Ct. 2191, 2196,
2198 (2019). So we’ll sometimes “interpret[] statutes to
include a scienter requirement even where the statutory text
is silent on the question” or “where ‘the most grammatical
reading of the statute’ does not support one.” Id. at 2197
(simplified). In Rehaif, for example, the Court said reading
a knowledge requirement into an element was necessary to
separate wholly innocent conduct (lawfully possessing a
firearm in that case) from criminal conduct (possessing a
firearm as an illegal alien). Id. at 2195–97.
But there’s no need to read “knowingly” into the statute
because Congress already specified a mental state necessary
to violate § 880 that separates wrongful from innocent
conduct: the defendant must know that the money received
was “unlawfully obtained.” 18 U.S.C. § 880. Thus, there’s
no worry that “wholly innocent conduct” is swept up in
§ 880 given the defendant’s knowledge of receiving the
proceeds of illegality. Section 880 thus complies with any
requirement that “the defendant must know each fact making
his conduct illegal.” Torres, 578 U.S. at 467 (simplified).
UNITED STATES V. LEMUS 11
Second, Defendants also contend that § 880’s title,
“Receiving the proceeds of extortion,” reinforces their
reading of the statute. They argue that the title suggests that
a person can’t violate § 880 based on knowledge of “just any
crime”—it needs to be “extortion.” But “[w]hile the ‘title of
a statute’ may help clarify an ambiguous word or phrase, it
‘cannot limit the plain meaning of the text.’” Cal. Rest.
Ass’n v. City of Berkeley, 89 F.4th 1094, 1105 (9th Cir. 2024)
(simplified). Because § 880 is clear, there’s no need to refer
to its title.
Next, Defendants contend that their view of § 880 is
supported by two other statutory provisions amended in the
same Act as § 880—18 U.S.C. § 1202(b) and 18 U.S.C.
§ 2114(b). See Violent Crime Control and Law Enforcement
Act of 1994, Pub. L. No. 103-322, §§ 320601(a)(1),
320601(b)(2), 320602, 108 Stat. 1796, 2115 (1994). They
point to language in those provisions similar to § 880:
• 18 U.S.C. § 1202(b): “A person who transports,
transmits, or transfers . . . any proceeds of a
kidnapping punishable under State law by
imprisonment for more than 1 year, or receives,
possesses, conceals, or disposes of any such proceeds
after they have crossed a State or United States
boundary, knowing the proceeds to have been
unlawfully obtained, shall be imprisoned not more
than 10 years, fined under this title, or both.”
(emphasis added).
• 18 U.S.C. § 2114(b): “A person who receives,
possesses, conceals, or disposes of any money or
other property that has been obtained in violation of
this section, knowing the same to have been
unlawfully obtained, shall be imprisoned not more
12 UNITED STATES V. LEMUS
than 10 years, fined under this title, or both.”
(emphasis added).
Because these provisions contain similar language,
Defendants argue that harmonizing these statutes means we
should adopt their reading of § 880. See United States v.
Gallendaro, 579 F.3d 1076, 1083 (9th Cir. 2009) (“When
statutes were enacted at the same time and form part of the
same Act, the duty to harmonize them is particularly acute.”
(simplified)).
We’re not persuaded. While Defendants are correct that
these provisions share a similar structure with § 880, it does
not support their reading of § 880. Though the structure and
plain language of these statutes indeed suggest that they
should be interpreted similarly, all three likely only require
a defendant know that the proceeds at issue were somehow
“unlawfully obtained.” And Defendants fail to point us to
any published authority applying a contrary interpretation of
either § 1202(b) or § 2114(b). In the absence of contrary
authority, the best way to harmonize these provisions with
§ 880 may be to read them the way we have. We note,
however, neither § 1202(b) nor § 2114(b) is directly before
this court and we make no binding holding on their
interpretation. We simply respond to Defendants’ argument
related to § 880.
We also disagree with Defendants’ position that our view
of § 880 creates an incongruity between § 1202(a) and
§ 1202(b). Section 1202(a) punishes receiving ransom
proceeds in violation of federal law while § 1202(b) bars
receiving kidnapping proceeds in violation of state law. But
unlike § 1202(b)’s requirement that a defendant only needs
to “know[] the proceeds were unlawfully obtained,”
§ 1202(a) expressly requires a defendant to “know[] the
UNITED STATES V. LEMUS 13
same to be money or property which has been at any time
delivered as such ransom or reward.” Thus, § 1202(a)
establishes a more specific mens rea requirement than
§ 1202(b). And Defendants contend we should read
§ 1202(b)’s “unlawfully obtained” to mean the more specific
mens rea to avoid an incongruity between the two
subsections.
But we “presume[]” that “Congress’ choice of words” is
“deliberate.” Univ. of Tex. Sw. Med. Ctr. v. Nassar, 570 U.S.
338, 353 (2013) (simplified). If Congress had wanted
§ 1202(a) and § 1202(b) to have the same mens rea, it
would’ve made that clear in the statutory language. But it
didn’t. And it’s “a well-established canon of statutory
interpretation that the use of different words or terms within
a statute demonstrates that Congress intended to convey a
different meaning for those words.” SEC v. McCarthy, 322
F.3d 650, 656 (9th Cir. 2003) (simplified); see also Antonin
Scalia & Bryan A. Garner, Reading Law: The Interpretation
of Legal Texts 156 (2012). (“[A] material variation in terms
suggests a variation in meaning.”). If anything, this
argument cuts against Defendants—§ 1202(a) shows that
Congress knows how to write a statute exactly like
Defendants would have us read § 880. That Congress chose
different language for § 1202(a) and § 880 only strengthens
our interpretation of § 880.
Finally, Defendants argue that our reading of § 880
would render it vague. A criminal law is unconstitutionally
vague if it fails to “define the criminal offense with sufficient
definiteness that ordinary people can understand what
conduct is prohibited and in a manner that does not
encourage arbitrary and discriminatory enforcement.”
Beckles v. United States, 580 U.S. 256, 262 (2017)
14 UNITED STATES V. LEMUS
(simplified). As stated above, § 880’s knowledge
requirement is satisfied if the defendant knew the proceeds
at issue were “unlawfully obtained”—meaning obtained in
any manner contrary to or prohibited by law.
Defendants’ conduct clearly falls within this
proscription. Even if a jury found that they believe the
money came from family members paying smugglers to
bring their relatives across the border rather than from
kidnapping, an ordinary person would be on notice that both
sets of conduct are proscribed. This isn’t a fringe case, and
because Defendants “engage[d] in some conduct that is
clearly proscribed,” they “cannot complain of the vagueness
of the law as applied to the conduct of others.” Vill. of
Hoffman Ests. v. Flipside, Hoffman Ests., Inc., 455 U.S. 489,
495 (1982); see also Kashem v. Barr, 941 F.3d 358 (9th Cir.
2019).
Outcome:
Plaintiff's Experts:
Defendant's Experts:
Comments: