947 F.3d 1111 (9th Cir. 2020), 15-10586, United States v. Soto-Barraza

Docket Nº:15-10586, 15-10589
Citation:947 F.3d 1111
Opinion Judge:IKUTA, Circuit Judge
Party Name: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.
Attorney: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...
Judge Panel:Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit Judges, and Michael J. McShane, District Judge.
Case Date:January 17, 2020
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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947 F.3d 1111 (9th Cir. 2020)

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.

Nos. 15-10586, 15-10589

United States Court of Appeals, Ninth Circuit

January 17, 2020

Argued and Submitted October 17, 2017

Submission Vacated January 24, 2018

Resubmitted January 17, 2020 San Francisco, California

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[Copyrighted Material Omitted]

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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.

Appeal from the United States District Court for the District of Arizona, David C. Bury, District Judge, Presiding, D.C. Nos. 4:11-cr-00150-DCB-BPV-3, 4:11-cr-00150-DCB-BPV-5.

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

SUMMARY[**]

Criminal Law

The panel affirmed two defendants' convictions for first-degree murder of a Border Patrol agent, conspiracy to interfere with and attempted interference with commerce by robbery in violation of the Hobbs Act, and assault on a U.S. Border Patrol Agent; and vacated the defendants' convictions for carrying and discharging a firearm in furtherance of a crime of violence.

The panel held that the defendants were properly extradited in accordance with the United States's treaty with Mexico.

The panel held that the district court's jury instructions for the Hobbs Act offenses were not plainly erroneous, and rejected the defendants' argument that the instructions constituted a constructive amendment of the indictment that allowed them to be convicted of extortion.

The panel held that the district court properly denied the defendants' motion for judgment of acquittal as to attempted robbery because the evidence was sufficient to establish that the defendants took a substantial step toward commission of the robbery.

In a concurrently filed memorandum disposition, the panel accepted the government's concession that conspiracy to commit Hobbs Act robbery is not a crime of violence and thus vacated the defendants' convictions under 18 U.S.C. § 924(c).

OPINION

IKUTA, Circuit Judge

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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

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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

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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 Mexicos Federal Penal Code, in effect at the time of the...

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