US v. Moreno Ornelas, No. 15-10510 (10-25-18)(Friedland; Thomas partial concurrence and partial dissent; Zilly dissenting).

This appeal arises from an apprehension in the Arizona desert. A U.S. Forest Service Officer encountered the defendant and a fight ensured, with shots fired. Each claimed that he was in a fight for his life.  The officer said the defendant stole his weapon and assaulted him; the defendant said he was the victim of an assault and acted in self-defense. The jury hung on an assault with attempt to murder charge, but convicted on various others. The sentence imposed was 43 years. The 9th affirmed the convictions for assault on a federal officer, use of a firearm, felon in possession, and possession of a firearm by an illegal alien. It reversed for jury instruction errors on the attempted robbery of the gun and truck.

The reversals resulted from the failure to instruct the jury that the defendant must have formed specific intent when he tried to take the gun and truck. The Court did not have to instruct on specific intent when he used force. The error was obvious and affected the fairness and integrity of the proceedings. The opinion discusses at length the common law of robbery and its adoption by Congress.

Dissenting, Thomas believes that the error was harmless.

The 9th held that the jury instruction for self-defense sufficiently covered the “resistance to excessive force” defense theory. The 9th also found that the instruction for what was performance of “official duties” instruction was appropriate.

Four months after disclosure of defense experts was due, and five days before trial, counsel disclosed a firearm expert’s report. The report would have indicated that the officer never hosted his gun, the gun could have slipped out of the holster accidentally, the shots could have been fired accidentally, and no shot was fired near the officer’s head. The majority concluded that the disclosure was unreasonably late. Defense counsel controlled the expert and should have followed the disclosure rules.

Dissenting, Zilly argues that the bar of the expert violates constitutional rights. Zilly states this bar was a sanction that prevented a defense and not mere enforcement of a reasonable discovery order. The district court should have explored the reasons why, and determine if it was blatant misconduct.

Congrats to Carl Gunn, CJA counsel, for a win.  Not total, but we take what we can get.

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2018/10/25/15-10510.pdf