Case o' The Week: A Western Gunn battle -- Ornelas and Mens Rea for Federal Attempted Robbery

   A Ninth Circuit panel, the defendant, and an Officer all wrestled over dangerous Gunn.

Mr. Jesus Eder Moreno Ornelas

   

 (No one badly hurt, thankfully).

  United States v. Ornelas, 2018 WL 5289024 (9th Cir. Oct. 25, 2018), decision available here.

Players: Decision by Judge Friedland, partial concurrence and partial dissent by C.J. Thomas.

  Compelling dissent by DJ Zilly, on defense-expert disclosure issue.

  Yet another notable win for former CD Cal AFPD Carl Gunn.

Facts: Mr. Moreno Ornelas and Forest Service Officer Linde got into dramatic fight after a routine stop near the Mexican border. Id. at *1. 

  According to Officer Linde, Moreno attacked him and knocked him out, grabbed his gun, and tried to shoot the officer. Id. at *2. Moreno then tried to steal Linde’s Forest Service truck. Linde testified that he ultimately prevailed and arrested Moreno at gunpoint. Id. 

  According to Moreno, he compiled with Linde’s orders to sit and be handcuffed, but the officer kept a gun trained on him with a finger on the trigger. Id. Fearing for his life, Moreno wrestled for the gun, emptied the chamber by firing into the air, then ran for the truck to escape. Id. 

  Among many other crimes, Moreno was charged with attempted robbery of the Officer's gun and the Forest Service truck. Id. (18 USC Sec. 2112). 

  Although the defense requested mens rea instructions, it did not object when the court instructed the jury and failed to require the specific intent to steal. Id. at *3. 

  Moreno was convicted by the jury on most counts, including the Section 2112 attempted robbery, and sentenced to 43 years. Id.

Issue(s): “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.” Id. at *3.

Held: “We agree with the first contention but reject the second.” Id. “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.” Id. at *4.

  “Congress’s use of the common law terms ‘robbery’ and ‘attempted robbery’ in § 2112 imported the common law meanings of those terms. The district court therefore should have instructed the jury that, to convict Moreno of attempted robbery, it needed to conclude beyond a reasonable doubt that he had formed the specific intent to steal the gun and truck by the time he tried to take them, though not necessarily by the time he used force against Linde. And, given the well-settled elements of common law robbery as well as Carter’s clear indication that § 2112 incorporates the common law, failing to instruct the jury on specific intent was an obvious omission.” Id. at *5.

Of Note: Another issue in this complex appeal was the preclusion of a late-disclosed defense expert. Id. at *9.

  Suffice it to say, don’t be late. Id. at *11 (“Because he did not come close the meeting the district court’s reasonable deadline, Moreno was properly left to proceed without his desired expert testimony.”) 

  Somewhat lost in this bigger opinion is a compelling dissent by WD Wa. District Judge Zilly. Id. at *12. Judge Zilly - who is in the district court trenches every day - has the better argument. If caught in this exclusion bind, take a look at Judge Zilly's dissent while attempting to distinguish this Ornelas outcome.  

How to Use: Moreno earned a reversal on the mens rea instruction, but lost on another instruction challenge. At trial, he sought a specific theory-of-the-defense instruction on self-defense. The district court refused, and gave the Ninth’s general self-defense instruction. In a detailed analysis, Judge Friedland concludes that this was not error. Id. at *7-*8.

  Along the way, Judge Friedland delivers a decision of first impression on the general adequacy of the general self-defense instruction. Id. at *8.

  Eyeball Ornelas if considering a self-defense or justification theory: the opinion is likely to impact your run at specific theory-of-the-defense instructions.

                                           

For Further Reading: On October 18, Judge Ryan D. Nelson became the second Trump appointee to join the Ninth Circuit. See Ninth Circuit jurist listing here. 

The Hon. Judge Ryan D. Nelson

For a general background on the Ninth’s newest jurist, see blog post here. 

  President Trump has also nominated three additional nominees to the Ninth (to the considerable chagrin of a pair of powerful California Senators). See CNN article here. 

Image of Mr. Moreno from https://arizonadailyindependent.com/2014/08/25/us-forest-service-worker-encouters-illegal-immigrants/

Image of the Honorable Judge Ryan D. Nelson from https://www.idahostatejournal.com/news/local/melaleuca-attorney-s-nomination-to-th-circuit-squeaks-through-panel/article_a9fa823f-7fc4-5357-a328-a3b19a7da666.html .

Steven Kalar, Federal Public Defender. Website at www.ndcalfpd.org

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Case o' The Week: Ninth Reverses Convictions for Three Grizzly Deaths - Wallen and Good Faith Self-Defense

 The AUSA and MJ won’t like our subjective “good faith” self-defense theory after reversal and remand.

  (But they’ll have to grin and “bear” it).

United States v. Wallen, 2017 WL 4799292(9th Cir. Oct. 25, 2017), decision available here.

Players: Decision by Judge Fisher, joined by Judges O’Scannlain and Friedland. Admirable win by Assistant Defender John Rhodes, Federal Defenders of Montana.

Facts: Wallen lived in Montana. There are bears. Specifically, three grizzlies killed his chickens, ran near his kids, scared his wife, and returned repeatedly despite being chased off. Id. at *2. When the bears returned to the home for the third time in one day, Wallen killed them. Id.

  He gave different narratives of what happened to agents, and was charged with three misdemeanor counts of violating the Endangered Species Act. Id.

  At the bench trial, Wallen asserted he shot the bears in self-defense. Id. at *2. Id. The magistrate judge, as the factfinder, found Wallen’s claim of self-defense was objectively unreasonable and found him guilty. Id. at *3.

 Wallen appealed.

Issue(s): “Here, the parties dispute whether the ‘good faith belief’ standard an objectively reasonable belief, as the government argues, or requires only a subjective belief in the need to protect oneself or others, as Wallen maintains. The magistrate judge and district court applied an objective test.” Id. at *5.

Held: “We conclude that was error.” Id. “We now hold that subjective good faith belief suffices to establish self-defense under this statute.” Id. 

  “We . . . construe § 1540(b)(3) in accordance with the general principle that a good faith belief defense ordinarily depends on a defendant’s subject state of mind rather than the objective reasonableness of the defendant’s belief . . . .” Id. at *8.

Of Note: The Endangered Species Act provides a defense when the defendant kills an endangered animal, but had a “good faith belief he was acting to protect himself or herself” or others from bodily harm. Id. at *5 (quoting 16 U.S.C. § 1540(b)(3)). Judge Fisher concludes that the words “good faith” requires an analysis of the defendant’s subjective belief – not the (more difficult) “objective” reasonable person standard. Id. at *5-*6.

  “But wait,” you may ask, “doesn’t the vanilla federal assault statute require that more-difficult objective, ‘reasonable’ belief of danger to argue self-defense?”

  It does indeed.

  Judge Fisher observes that 18U.SC. § 113 (“Assaults within maritime and territorial jurisdiction”) only permits a self-defense theory when a defendant reasonably believes the force was necessary. Id. at *6, quoting United States v. Keiser, 57 F.3d 847, 851 (9th Cir. 1994). Shoot a grizzly and your sincere belief in the need for self-defense is enough. Assault a human, and a “reasonable,” objective belief in the need for self-defense is necessary.

   Weird? Blame Congress, explains this admirably honest opinion. Id. at *6. The two statutes are written differently: unlike the Endangered Species Act, the Section 113 assault statute has no “good faith” language. The Ninth is just calling ‘em like Congress writes ‘em.

How to Use: Fourth Amendment fans may get a little nervous with all this “subjective good faith” language that peppers Wallen. In a world where Leon and Jacobson give cops a “good faith” harbor, does Wallen mean that a cops who honestly – but unreasonably – believe a search was righteous escapes suppressesion?

  It does not. 

  Judge Fisher carefully distinguishes those other good faith cases, that arise in the context of the Fourth Amendment and § 1983 claims. A cop’s assertion of good faith for a search, and the government’s assertion of good faith in the context of the Stored Communications Act, still must be objectively reasonable. Id. at *7.

                                               

For Further Reading: Last summer, Senator Jeff Flake (R-Arizona) introduced a bill to split the Ninth– and held a hearing on the issue. See article here.  

 This week, Senator Flake famously explained he would not be seeking re-election – and added a bon mot or two with his announcement. See article here. 

  Impossible to predict the Split’s momentum, but safe to predict it won’t come be from a bill sponsored by Senator Flake.

Image from the Big Lebowski from https://i.pinimg.com/originals/98/cf/76/98cf7624015401cbfba1eb733640b428.jpg

Steven Kalar, Federal Public Defender, N.D. Cal. Website at www.ndcalfpd.org

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