United States v. Ornelas

• Decision Date: 25 October 2018
• Docket Number: No. 15-10510,15-10510
• Citation: 906 F.3d 1138
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jesus Eder Moreno ORNELAS, aka Jesus Edgar Juanni Moreno, aka Jesus Eder Mendivel-Mendivel, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

906 F.3d 1138

UNITED STATES of America, Plaintiff-Appellee,

v.Jesus Eder Moreno ORNELAS, aka Jesus Edgar Juanni Moreno, aka Jesus Eder Mendivel-Mendivel, Defendant-Appellant.

No. 15-10510

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 15, 2018 San Francisco, California

Filed October 25, 2018

Carlton F. Gunn (argued), Pasadena, California, for Defendant-Appellant.

Angela W. Woolridge (argued), Assistant United States Attorney; Robert L. Miskell, Appellate Chief; Elizabeth A. Strange, Acting United States Attorney; United States Attorney's Office, Tucson, Arizona; for Plaintiff-Appellee.

Before: Sidney R. Thomas, Chief Judge, Michelle T. Friedland, Circuit Judge, and Thomas S. Zilly,^* District Judge.

Partial Concurrence and Partial Dissent by Chief Judge Thomas ; Dissent by Judge Zilly

FRIEDLAND, Circuit Judge:

On a summer day in the Arizona desert, not far from our country's southern border, United States Forest Service Officer Devin Linde ("Linde") encountered Defendant-Appellant Jesus Eder Moreno Ornelas ("Moreno"). A struggle ensued. Afterwards, each man claimed that the other had forced him into a fight for his life. Moreno was convicted at trial of multiple federal crimes. We reverse his convictions for attempted robbery of Linde's gun and vehicle because there was plain error in the jury instructions on those counts, but we otherwise affirm.

I.

Linde was responsible for patrolling a vast swath of mountainous desert stretching across Arizona and New Mexico and running down to the Mexican border, which contained areas of National Forest. Apart from the Forest Service, the United States Border Patrol was the only law enforcement agency operating in that remote area. While carrying out his duties, Linde often encountered people who had crossed the border unlawfully, some of whom were smuggling drugs. Many of those people fell victim to the heat and harsh terrain. Stranded without food and water, they sometimes sought help from federal officers on patrol. Linde carried water and other supplies in his truck to prepare for such encounters.

A.

One day during a patrol, Linde received a report of suspicious people walking along a road near an area of National Forest. Linde called Border Patrol and was asked to respond. As he had many times before, Linde agreed to assist and set out in his truck, which was clearly marked as a law enforcement vehicle. Before long, he encountered two men, one of whom had scrapes and scratches on his face. The other, who did not appear injured, was Moreno.

The two men walked up to the truck. Linde offered them water, but they declined. Linde then directed Moreno and his companion to come to the front of the truck and put their hands on the hood. The injured man complied, but Moreno did not. With verbal commands failing, Linde drew his gun. A struggle between Linde and Moreno began moments later, the details of which are in dispute.¹

1.

Linde testified in Moreno's subsequent jury trial that he ordered Moreno to turn away and put his hands on his head. This time, Moreno complied. Linde approached with his gun drawn. When he was a few feet away, Linde holstered his weapon and pulled out handcuffs. After cuffing Moreno's right hand, Linde began to cuff Moreno's left.

At trial, Linde admitted not remembering exactly what happened next, but he recalled being yanked forward, then going blank. The next thing he knew, he and Moreno were fighting. Moreno went for the gun. Linde threw his hands down to his holster, one covering the handle of the gun, the other fending off Moreno.

Moreno responded by throwing Linde to the ground. Entangled, the two men rolled towards an embankment on the side of the road. Moreno started pummeling Linde in the face. Linde blacked out briefly before feeling his gun being pulled out of its holster. Two shots rang out. Having lost control of his weapon, Linde flailed his arms, searching for the gun.

Linde testified that he located the weapon right before Moreno could take aim at his chest. Linde pushed Moreno's hand away and then rolled onto his side, just as another shot discharged near his head. Linde grabbed Moreno's wrist, trying to keep the gun pointed away. Moreno nearly broke free, but Linde grabbed him by the neck, wrapped his leg around Moreno's throat, and squeezed. Moreno fired several shots skyward before dropping the gun.

Linde grabbed it. He aimed at Moreno and pulled the trigger. Nothing happened. Linde rolled away, backing up to put distance between them. Moreno—on his knees, hands in the air—cried "no, no, no, no." Thinking the clip was empty, Linde reloaded. Moreno bolted for the truck.

As Moreno ran, Linde realized that the gun was jammed. Linde quickly cleared the jam but, knowing that his truck contained no weapons and that its security system would prevent Moreno from driving away, did not fire. Instead, as he told the jury, Linde went to the truck, aimed the gun at Moreno's chest, and threatened to kill him if he moved. Linde then grabbed the radio and reported, "Shots fired."

2.

Moreno gave law enforcement a very different account of the incident. In a post-arrest interview that was recorded and later played for the jury, Moreno admitted that he initially refused to comply with Linde's commands but claimed that he sat down as the officer approached with handcuffs. By Moreno's telling, Linde never holstered the gun but instead kept his finger on the trigger, with the barrel pointed at Moreno. Fearing for his life and wanting to return to Mexico rather than go to prison, Moreno tried to grab the gun. A shot went off. Moreno tackled Linde with all the force he could muster. Two more shots rang out as the two men struggled on the ground, each trying to wrest the gun from the other.

Moreno claimed that, by this point, he could have beaten Linde unconscious. Instead, Moreno slammed Linde's hand onto the ground, forcing him to release the gun. Moreno seized it, fired the remaining rounds into the air, and tossed the gun aside. He ran for the truck, thinking he would drive to the border and leave it there.

Moreno recounted that, when he got behind the wheel, he suddenly realized that he had been acting stupidly and that he should not drive away. For that reason, Moreno explained, he got out of the truck and gave himself up voluntarily.

B.

Moreno was charged with assault on a federal officer, attempted murder of a federal officer, use of a firearm during and in relation to a crime of violence, possession of a firearm by a convicted felon, possession of a firearm by an illegal alien, attempted robbery of Linde's gun, attempted robbery of Linde's truck, and illegal reentry. At trial, the jury hung on the attempted murder charge but convicted on the others. The district court sentenced Moreno to just over 43 years in prison.

II.

On appeal, Moreno challenges all of his convictions except the one for illegal re-entry. We reverse both of Moreno's convictions for attempted robbery but affirm the rest.

A.

Moreno argues that the jury instructions given at trial did not accurately define the elements of attempted robbery under 18 U.S.C. § 2112. The district court instructed that, for the jury to convict Moreno of attempted robbery under that statute, the Government had to prove that he "did take or attempt to take from the person or presence of another any kind or description of personal property belonging to the United States," and that he "did so by force and violence, or by intimidation." Although Moreno requested an instruction requiring the Government to prove that he acted with the "intent to steal" and that his use of "force or intimidation" was "directly related" to the attempted taking, he acknowledges that he did not object when the district court instructed the jury differently at trial. We may therefore review only for plain error. See Jones v. United States , 527 U.S. 373, 388, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999) ; see also Fed. R. Crim. P. 30(d).

On appeal, Moreno maintains that the district court plainly erred in two ways in instructing the jury on the elements of attempted robbery under § 2112 : (i) by failing to instruct that Moreno must have possessed the specific intent to steal; and (ii) by failing to instruct that Moreno must have formed such intent by the time he used force, not just by the time he tried to take the property in question. We agree with the first contention but reject the second.

1.

We may reverse for plain error only if four conditions are met. "First, there must be an error that has not been intentionally relinquished or abandoned." Molina-Martinez v. United States , ––– U.S. ––––, 136 S.Ct. 1338, 1343, 194 L.Ed.2d 444 (2016). "Second, the error must be plain—that is to say, clear or obvious." Id. "Third, the error must have affected the defendant's substantial rights," which in cases like this one means that there is " 'a reasonable probability that, but for the error,' the outcome of the proceeding would have been different." Id. (quoting United States v. Dominguez Benitez , 542 U.S. 74, 76, 124 S.Ct. 2333, 159 L.Ed.2d 157 (2004) ); see also, e.g. , United States v. Conti , 804 F.3d 977, 981 (9th Cir. 2015). If those conditions are met, we will exercise our "discretion to correct the forfeited error if the error 'seriously affects the fairness, integrity or public reputation of judicial proceedings.' " Molina-Martinez , 136 S.Ct. at 1343 (quoting United States v. Olano , 507 U.S. 725, 736, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993) ).

2.

Although the district court was correct not to instruct the jury that Moreno must have formed the specific intent to steal by the time he used force, the court was wrong—and plainly so—to omit an instruction on specific intent altogether.

The statute under which Moreno was charged with attempted robbery of Linde's gun and truck punishes "[w]hoever robs or attempts to rob another of any kind or description of personal property belonging to the United States." 18 U.S.C. § 2112. Although the...