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: .22s and the Yakima Blues - Barnes and Necessity / Justification Defenses in 922(g) cases

  Eastern Wha? means new bad law.

United States v. Barnes, 2018 WL 3468136 (9th Cir. July 19, 2018), decision available here.

Players: Decision by Judge Paez, joined by Judges Gould and Christen.

Facts: Yakima cops stopped Barnes, and (mistakingly) told him he was wanted for a felony. Id. at *1. (It was a misdo bench warrant). Barnes ran, was tackled and tazed, and had a .22 on him when searched. Id. at *2.

  Before his § 922(g) trial Barnes made a proffer for a “necessity defense.” Id. at *3. [Ed. Note: Judge Paez explains the distinctions between a “necessity” defense versus “justification” – this case is probably the latter. Id. at *8 & n.4]. 

  Barnes explained that he had been taking care of his meth-addicted adult son. Id. Barnes came across the gun in his house, grabbed it to keep it away from kids in the home, and was on the way to throw it in a dumpster when confronted by the cops. Id. at *3.

  The district court refused to allow a necessity / justification defense: Barnes was convicted at trial. Id.

Issue(s): “[Barnes] argues that the district court erred . . . by precluding him from presenting a necessity defense at trial.” Id. at *1.

Held: “A defendant is entitled to present evidence on a necessity defense and have the jury instructed accordingly once he has adequately established—through an offer of proof—that all four requisite factors are met: 

(1) he was faced with a choice of evils and chose the lesser evil; 

(2) he acted to prevent imminent harm; 

(3) he reasonably anticipated a causal relation between his conduct and the harm to be avoided; and 

(4) there were no other legal alternatives to violating the law.” Id. at *8 (internal quotations, citations, and fn. omitted). Id. at *8. 

“[ ] Barnes’s offers of proof, even when viewed in the light most favorable to him, were insufficient to show that he acted to prevent imminent harm. “[T]he term ‘imminent harm’ connotes a real emergency, a crisis involving immediate danger to oneself or to a third party.” . . . There is no indication that Barnes acted in response to such a crisis. There was no evidence that the children had, for instance, already obtained possession of the gun or were about to do so. There was no evidence that the children were in close proximity to the firearm. At most, Barnes removed a dangerous weapon from a house where children were present . . . [T]he district court correctly denied Barnes’s request to present a necessity defense to the jury.” Id. (internal quotations and citations omitted).

Of Note: Barnes has a second disappointing holding, upholding the denial of a suppression motion. A [conspicuously unnamed] Yakima municipal judge failed to look at an incident report, or an affidavit, before “finding” probable cause for Barnes’ misdemeanor complaint. Id. at *2. Judge Paez finds “judicial abandonment.” Id. at *5. 

  However, in an unfortunate decision of first impression, the Ninth holds that, to overcome Leon good faith, a defendant must show both “judicial abandonment” and that the cops knew – or should have known – of the abandonment. Id. at *7. Barnes stumbled on this second step. 

  One gets the impression the Ninth isn’t keen on this rule, but finds itself “bound to follow the Supreme Court’s directives.” Id. at *7.

  Hopefully, Yakima defense counsel will explore complaints signed by this mystery municipal judge –how many complaints bear rubber stamps, in Eastern Washington?

How to Use: If you’re mulling this defense in a § 922(g) case, footnote four is where to start. Id. at *8 & n.4. Judge Paez explains how the Ninth considers this theory under the “justification” rubric in gun cases, and lays out the elements for the defense. Id. 

  A good blueprint when considering a justification challenge, for the waves of gun cases that await on the horizon.

                                               

For Further Reading: “Necessity,” “duress,” “justification:” this line of federal law is confusing. 

  For an interesting discussion of these theories, along with a thought-provoking recommendation, see Schwartz, Stephen S. (2008) “Is There a Common Law Necessity Defense in Federal Criminal Law?,” University of Chicago Law Review: Vol. 75 : Iss. 3 , Article 8, available here.

Image of “Welcome to Yakima” from http://www.thedailychronic.net/2014/27331/yakima-washington-bans-all-marijuana-businesses/

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

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Case o' The Week: Catch a Tigar by the Tale - Sixth Amendment Structural Error and Limits on Defense Closing Arguments

  There are many rights that can be stomped upon, with convictions

salvaged by that damnable “harmless error.”

  And there are some, that cannot.  

United States v. Brown, 2017 WL 2509230 (9th Cir. June 12, 2017), decision available here.

Players: Important decision by N.D. Cal. District Judge Jon S. Tigar, joined by Judge Paez. 

 "Vigorous" dissenting opinion by Judge Bybee. Id. at *5.

Facts: Daniel Brown was a member of a closed online bulletin board where members shared child porn. Id. at *1. He was charged under 18 USC § 2251(d)(1), which prohibits knowingly advertising or giving notice of the availability of child porn. Id. 

  Before closing arguments, the government moved the court to prohibit the defense from arguing that this particular closed board did not constitute “advertising” or “giving notice.” Id. at *2. Over defense objection, the district court agreed and prohibited that defense argument. Id. Brown was convicted and sentenced to fifteen years. Id. at *1.

Issue(s): “Brown challenges his conviction on the ground that the district court violated his Sixth Amendment right to present his defense to the jury when it precluded him from arguing the government had not met its burden to show that the . . . board involved a “notice” or an “advertisement,” given the closed nature of the bulletin board.” Id.  

Held: “By refusing to allow Brown to present his defense in closing argument based on the closed nature of the . . . bulletin board, the district court “violated [Brown's] fundamental right to assistance of counsel and right to present a defense, and it relieved the prosecution of its burden to prove its case beyond a reasonable doubt. . . .  A deficient closing argument lessens the Government’s burden of persuading the jury, and causes the breakdown of our adversarial system . . . . 

  Since preventing a defendant from arguing a legitimate defense theory constitutes structural error, we must reverse Brown's conviction accordingly.” Id. at *5 (internal quotations and citations omitted).

Of Note: What do the majority jurists, Circuit Judge Paez and District Judge Tigar, have in common? 

  Many decades of trial court experience. 

Hon. District Judge Jon S. Tigar

  Both men served on California county courts for years, and both jurists have served as federal district court judges. By contrast, dissenting Judge Bybee’s first judicial post was to the Ninth. 

  It is admittedly too simplistic to attribute the split in votes solely to the jurists’ courtroom experience. Nonetheless, the wisdom of the trenches does flavor the opinion. See, e.g., id. at *4 & n.5 (explaining the “simple” process of permitting a defense factual argument to the jury, then denying a post-conviction Rule 29 against defense challenge. “That is exactly what criminal trial judges have always done.”) 

  Finally, as a practical matter, it won’t exactly be easy for us to argue the factual technicalities of “advertising” and “notice” to a jury horrified by the child porn images that they’ve just viewed in trial. There’s a good chance that courtroom reality occurred to the veteran trial judges.

How to Use: “Structural error:” an increasingly rare, and ever sweet, phrase. How strong was the AUSA’s case in this prosecution? Who cares? It just doesn’t matter -- when counsel is prevented from presenting a legitimate defense in closing argument, the conviction is reversed – period, full stop. Id. at *5. 

  Great stuff for an appeal, but potent medicine for the district court, too. When an AUSA presumes to constrict the scope of your closing argument, remind the Worthy Opposition and the District Court that limits on this core Sixth Amendment right mean a Ninth-mandated “Do Over” should the jury convict.

                                               

For Further Reading: The Supreme Court is thinking about Structural Error (rarely good news). Weaver v. Massachusetts involves a defense counsel who whiffed on objecting to a closed courtroom during trial.

  (NB: Closed courtroom + timely defense objection = structural error reversal).

   Circuits are split on whether the defense must first show Strickland ineffectiveness before earning a structural error reversal. For an interesting piece on this intriguing conundrum, see “Supreme Court to Decide if One Structural Error Cancels Out Another, available here.

Image of the Honorable District Judge Jon Tigar from http://www.cand.uscourts.gov/assets/images/judges/Judge_Jon_S_%20Tigar.colorresized.jpg

Image of “Don’t Tread on Me” flag from http://finfeetwing.org/images/rattle_n_carolina_gadsden.jpg

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

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Case o' The Week: Secret Agent Man & Jury Instruction Plan - Agency in federal criminal law

“Secret agent man.”

Works better as a song, than a theory of the defense.

United States v. Oliver King, 2013 WL 6038242 (9th Cir. Nov. 15, 2013), decision available here.

Players: Decision by Judge Nguyen, joined by Judges Thomas and DJ Dearie.

Facts: King, a Canadian, liked guns. Id. at *1. He was unable to legally sell them in the United States, so he paired up with a US citizen named Zarandi. Id. King proposed, and Zarandi agreed, that King would do the “legwork” for a firearms business in Oregon. Id. King filled-out the paperwork and set up a corporation called, “MHPS.” Id. Zarandi was listed as the CEO and sole ‘responsible person’ on the federal firearm application. Id. The application was approved, and along with other more-straightforward transactions King also bought guns – and offered to sell them, in the United States – behind Zarandi’s back. Id. at *2. He was ultimately arrested, charged with, and convicted of – among other things – unlawfully dealing in firearms. Id.

Issue(s): “King’s proposed instructions stated . . . that he could not be convicted of unlicensed firearms dealing unless the government proved that he was not ‘authorized to act on behalf of another person or corporation that did have a license as a firearm dealer.’ King sought these instructions so that he could argue to the jury that he was not guilty of unlicensed firearms dealing because he only acted on behalf of MHPS, a licensed corporate entity.” Id. at *4. “With regard to his conviction for unlawfully dealing in firearms, King contends that the district court erred in refusing to give his proposed jury instructions, which required the government to prove that King was not acting as an authorized agent of a federal firearms licensee.” Id. at *1.

Held: “In an issue of first impression in our circuit, we hold that King is not entitled to such an instruction.” Id.

Of Note: King was also convicted of making material false statements to border agents by not revealing that he was entering the US from Canada to mess with guns. Id. at *8. In reality, however, his lies made no difference: he was the target of an ICE investigation, was being followed and surveilled as soon as he was “allowed” to clear customs, and because he was the target of an investigation it didn’t matter what lies he offered for his reason to cross. Were his lies “material,” because he was going to be admitted regardless so ICE agents could continue their investigation? Yes, says Judge Nguyen: “actual influence is not required, so long as the misstatement has a propensity to influence agency action.” Id. at *8. This disappointing holding forecloses a thoughtful counter-argument laid out in 2011 by dissenting Judge Tashima in United States v. Howard.

How to Use: King’s interesting theory was that he didn’t violate the “dealing in gun” statute because he was an agent of an authorized person or corporation – here, MHPS. Judge Nguyen isn’t keen on that theory, rejecting it as a matter of statutory interpretation. Id. at *4. Of broader import, Judge Nguyen spends a fair amount of time discussing agency theory in the context of federal criminal law. Id. at *5 (discussing with approval United States v. Fleischli, 305 F.3d 643, 652 (7th Cir. 2002)). King is worth a sobering read if mulling an agency defense in another context (such as the purchase of machineguns, the agency theory rejected in Fleischli).

For Further Reading: Can the government supersede with a mandatory minimum charge in retaliation for the defendant filing a suppression motion? Sure – despite the clear spirit of the recent Holder memo, discouraging such vindictive use of mand-mins. 

 Here’s a more interesting question: can the district court dismiss the mand-min count for vindictive prosecution? Sure, explains the Sixth Circuit, in a great new decision: United States v. LaDeau, available here. (“Concluding that the government had not rebutted the presumption of vindictiveness, the district court dismissed the superseding indictment. The government filed this appeal. Because the district court did not abuse its discretion in dismissing the superseding indictment, we affirm.”) 

   This welcome win by Nashville AFPD Michael Holley deserves to be imported into the Ninth.  

“Secret Agent Man” graphic from http://www.secretagentman.net/

Steven Kalar, Federal Public Defender ND Cal, website at www.ndcalfpd.org