United States v. Soto-Barraza

Decision Date17 October 2017
Docket Number No. 15-10589,No. 15-10586,15-10586
Citation947 F.3d 1111
Parties UNITED STATES of America, Plaintiff-Appellee, v. Ivan SOTO-BARRAZA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Jesus Lionel Sanchez-Meza, AKA Leonel Meza-Portillo, AKA Lionel Meza-Portillo, AKA Leonel Portillo-Meza, AKA Lionel Portillo-Meza, AKA Jesus Leonel Sanchez-Meza, Defendant-Appellant.
CourtU.S. Court of Appeals — Ninth Circuit

Ramiro S. Flores (argued), Law Office of Ramiro S. Flores P.L.L.C., Tucson, Arizona; Andrea Lynn Matheson (argued), Matheson Law Firm P.C., Tucson, Arizona; for Defendants-Appellants.

David D. Leshner (argued), Special Attorney for the United States; Jeff Sessions, Attorney General; Office of the United States Attorney, San Diego, California; for Plaintiff-Appellee.

Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit Judges, and Michael J. McShane,* District Judge.

IKUTA, Circuit Judge:

Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza appeal their convictions for the first degree murder of United States Border Patrol Agent Brian Terry; conspiracy to interfere with and attempted interference with commerce by robbery in violation of the Hobbs Act; assault on a U.S. Border Patrol Agent; and carrying and discharging a firearm in furtherance of a crime of violence. We conclude that the defendants were properly extradited in accordance with the terms of the United States’s treaty with Mexico. We hold that the jury instructions for the Hobbs Act offenses were not plainly erroneous, and reject defendants’ argument that the instructions constituted a constructive amendment of the indictment. And we conclude that the evidence was sufficient to establish that the defendants took a substantial step toward commission of the robbery offense.1 For the reasons below and in our concurrently-filed memorandum disposition, ––– Fed. App’x ––––, 2020 WL 262989 (9th Cir. 2020), we vacate defendants’ convictions on Count 9 and affirm in all other respects.

I

In September 2010, the United States Border Patrol Tactical Unit (BORTAC) for the Tucson sector launched Operation Huckleberry. The goal of Operation Huckleberry was to apprehend gangs that preyed on drug smugglers in the Arizona Mesquite Seep.

The Mesquite Seep is an area of rough terrain, covered with canyons, cliffs, and steep hills, about 11 miles north of the Mexican border. At the time Operation Huckleberry commenced, except for two foot trails, the area was accessible only by all-terrain vehicles. The Mesquite Seep was well known as part of a drug trafficking corridor. Bands of eight to twelve men would carry 45 or more pounds of marijuana in homemade backpacks as they traveled northbound from Mexico into the Seep, and then east to Interstate 19. This smuggling corridor was also well known to "rip crews," small gangs of bandits armed with assault weapons who stalked the smugglers to steal their marijuana. Operation Huckleberry was aimed at stopping rip crew activity in the Seep.

In December 2010, six BORTAC agents were deployed to the Mesquite Seep for a 48-hour operation. The team consisted of Agents William Castano (the team leader), Gabriel Fragoza, Timothy Keller, Brian Terry, Christopher Conner, and Charles Veatch. The agents were deployed in an area commonly used for smuggling.

Near the end of the 48 hours, the Nogales station alerted the team to potential traffic moving east towards the team’s position. Three agents moved to a line above a wash. Using a thermal monocular, Agent Castano saw armed men approaching. At least two of the men had weapons in the "ready position," aimed forward and ready to fire. As they approached, Agent Castano yelled "Policia!" Some of the men ran; others stopped, turned towards the agents, and raised their weapons. In response, Agent Fragoza fired his non-lethal shotgun, while announcing in Spanish: "get down, get down." The agents saw multiple muzzle flashes from the guns in the wash, and returned fire. Agent Terry was hit by a gunshot from the wash, and later died of the wound

.

At the crime scene, the FBI recovered two AK-47-style assault rifles and five shell casings, but could not determine whether either of the rifles fired the bullet that killed Agent Terry. The FBI also found five backpacks containing food, water, and ammunition. Fingerprint and DNA analysis linked the rifles, backpacks, and the backpacks’ contents to Soto-Barraza and Sanchez-Meza.

A grand jury indicted Soto-Barraza, Sanchez-Meza, and the four other rip crew members on nine counts, charging the defendants with murder of Agent Terry; Hobbs Act conspiracy to interfere and attempted interference with commerce by robbery; assault on four Border Patrol officers; and carrying and discharging a firearm in furtherance of a crime of violence.2

Almost a year and a half later, Mexican authorities arrested Sanchez-Meza and transported him to Mexico City, where he was interviewed by an FBI agent. After being advised of his Miranda rights, Sanchez-Meza confessed to his involvement in the Mesquite Seep incident. He admitted that he entered Arizona from Sonora, obtained AK-47-style weapons from a hidden cache, and began searching for marijuana traffickers in order to rob them at gunpoint. When shown photographs of assault rifles recovered at the crime scene, Sanchez-Meza stated they were "similar types to the weapon he carried." Sanchez-Meza signed a written declaration acknowledging his confession.

A year later, Mexican authorities arrested Soto-Barraza. Two FBI agents interviewed Soto-Barraza in Spanish in a Mexican prison during the following month. After being advised of his Miranda rights, Soto-Barraza also admitted his involvement in the events surrounding the shooting. Like Sanchez-Meza, Soto-Barraza admitted that he entered the United States on foot from Sonora into Arizona; obtained weapons from a hidden cache of firearms; and planned to rob marijuana smugglers. He also admitted to carrying a loaded assault rifle and stated that a photograph of one of the rifles found in the wash was similar to the weapon he carried that night.

The government requested extradition of the defendants and Mexico granted the requests. The orders from the Mexican Department of Foreign Affairs stated that: "the formal international extradition request made by the government of the United States of America, regarding the person sought, adheres to the postulates contained in the Extradition Treaty between the United Mexican States and the United States of America and that the extradition of the aforementioned requested person is warranted; therefore the Department determines that there are sufficient elements to grant, and does grant, the extradition" of both defendants. The orders stated that each defendant could be prosecuted in district court for all the charges listed in the indictment, and that the offenses stated in each count met the statutory definitions contained in Mexico’s Federal Penal Code, in effect at the time of the events.3

Soto-Barraza moved to dismiss the indictment, arguing that his extradition was unlawful because Mexico did not have equivalent offenses. He later moved for a declaratory judgment on the same ground. Sanchez-Meza subsequently joined the motion, which the district court denied.

The seven-day trial began in September 2015. After the government rested, the defense moved for a directed verdict, contending that the rip crew’s preparations did not constitute a "substantial step" necessary for an attempted robbery. The court denied the motion.

The jury returned guilty verdicts on all nine counts. The court denied the defense’s post-conviction motion for a judgment of acquittal and sentenced Soto-Barraza and Sanchez-Meza to life imprisonment for Count 1; concurrent 240-month sentences for Counts 3, 6, 7, and 8; and consecutive sentences of 120 months for Count 9. This appeal followed.

II

We first address defendants’ claim that the district court erred in denying their motion to dismiss the indictment and for declaratory relief on the ground that their extradition violated the Mexico-United States Extradition Treaty.

"The right to demand and obtain extradition of an accused criminal is created by treaty." United States v. Van Cauwenberghe , 827 F.2d 424, 428 (9th Cir. 1987) (quoting Quinn v. Robinson , 783 F.2d 776, 782 (9th Cir. 1986) ) (internal quotation marks omitted). The Treaty, effective January 25, 1980, imposes two requirements relevant to defendants’ motions.

First, Article 17 of the Treaty incorporates the "rule of specialty," which precludes the requesting country from prosecuting a defendant for any offense other than that for which the surrendering country consented to extradite, unless surrendering country approves. See United States v. Iribe , 564 F.3d 1155, 1158 (9th Cir. 2009). Article 17 states: "A person extradited under the present Treaty shall not be detained, tried or punished in the territory of the requesting Party for an offense other than that for which extradition has been granted nor be extradited by that Party to a third State," absent certain exceptions not relevant here.

Second, Article 2 incorporates the principle of "dual criminality," that "an accused person can be extradited only if the conduct complained of is considered criminal by the jurisprudence or under the laws of both the requesting and requested nations." Quinn , 783 F.2d at 783. Article 2(1) provides that "[e]xtradition shall take place, subject to this Treaty, for wilful acts which fall within any of the clauses of the Appendix and are punishable in accordance with the laws of both Contracting Parties by deprivation of liberty the maximum of which shall not be less than one year." The Appendix to the Treaty lists 31 categories of offenses, including murder and robbery. Article 2(3) provides that "[e]xtradition shall also be granted for wilful acts which, although not being included in the Appendix, are punishable, in accordance with the...

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  • United States v. Linehan
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • December 22, 2022
    ...as a substantial step toward the use of force as opposed to a mere preparation for the use of force. See United States v. Soto-Barraza , 947 F.3d 1111, 1120 (9th Cir. 2020) (noting that courts are more likely to find that defendants have attempted an offense when they have "equipped themsel......
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    ...(1) intending to commit a Hobbs Act robbery; and (2) taking a substantial step toward completing that crime. United States v. Soto-Barraza , 947 F.3d 1111, 1120 (9th Cir. 2020).Attempted Hobbs Act robbery is not a crime of violence because a substantial step toward completing a Hobbs Act ro......
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    ...as a substantial step toward the use of force as opposed to a mere preparation for the use of force. See United States v. Soto-Barraza, 947 F.3d 1111, 1120 (9th Cir. 2020) (noting that courts are more likely to find that defendants have attempted an offense when they have "equipped themselv......
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