FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 20-30193

Plaintiff-Appellee, D.C. Nos. 3:17-cr-00180-RRB-DMS-1 v. 3:17-cr-00180-RRB-DMS FOREST MITCHELL KIRST, OPINION Defendant-Appellant.

Appeal from the United States District Court for the District of Alaska Ralph R. Beistline, District Judge, Presiding

Argued and Submitted March 17, 2022 San Francisco, California Before: William A. Fletcher, Ronald M. Gould, and Daniel P. Collins, Circuit Judges.

Opinion by Judge W. Fletcher; Partial Concurrence and Partial Dissent by Judge Collins SUMMARY *

Criminal Law

The panel affirmed Forest Kirst’s conviction on two counts of obstructing a pending proceeding, in violation of 18 U.S.C. § 1505, and affirmed the district court’s assessment of a $5,000 fine, in a case in which the National Transportation Safety Board (NTSB) investigated the crash of a small plane that Kirst piloted and in which the Federal Aviation Administration (FAA) revoked Kirst’s airman certificate.

The plane crashed as Kirst attempted to fly over Atigun Pass in the Brooks Range in Alaska. During both the investigation and Kirst’s appeal of the revocation of his airman certificate, Kirst claimed that the plane was climbing through 5,500 to 5,700 feet with a target altitude of 6,000 feet as it approached the pass. GPS data showed that the plane was flying at an altitude more than 1,000 feet lower than what Kirst claimed. The proceeding in Count One was the NTSB investigation. The proceeding in Count Two was the appeal before the NTSB of the FAA’s revocation of his airman certificate.

Challenging his conviction on Count One, Kirst argued that the NTSB’s accident investigation was not a pending “proceeding” within the meaning of § 1505, because the statute covers only proceedings where an agency has regulatory or adjudicative authority—authority that the NTSB lacks during an accident investigation. The panel wrote that even if it were not reviewing for plain error, it would affirm, holding that the NTSB’s investigation of Kirst’s plane crash was a “proceeding” within the meaning of § 1505. The panel explained that in the course of conducting its investigation, the NTSB had both subpoena power and the power to compel testimony under oath, and that under United States v. Kelley, 36 F.3d 1118 (D.C. Cir. 1994), whose reasoning the panel found persuasive, that is enough.

Rejecting Kirst’s challenge to the sufficiency of the evidence on both counts, the panel held that, viewing the evidence in the light most favorable to the government, a reasonable factfinder could have found corrupt intent.

* This summary constitutes no part of the opinion of the court. It has been prepared by court staff for the convenience of the reader. The district court instructed the jury that an act is material under § 1505 “if it has a natural tendency to influence, or is capable of influencing, the agency’s decisions or activities.” Kirst argued that the phrase “or activities” in the instruction was improper because it allowed the jury to convict based on Kirst’s statements that did not affect the NTSB’s decisions or decision making process. The panel held that the district court did not err in instructing the jury on the materiality element. The panel noted that this court previously rejected the argument that the word “activities” enabled a jury to find a statement material even if it was incapable of influencing an agency’s decisions. The panel also noted that the district court made clear that Kirst’s statements must hav