Saturday, January 18, 2020

Case o' The Week: Attempted Robbery of Absent Victims? "Substantial" Enough for Ninth - Soto-Barraza and Substantial Steps for Attempted Robberies

Which victim triggers the lowest level of proof, to sustain a federal conviction for attempted robbery?

  A.  A federally-insured bank;
  B.  An armored car, or;
  C.  An international drug smuggler?

United States v. Soto-Barraza, 2020 WL 253560 (9th Cir. Jan. 17, 2020), decision available here.

Agent Terry Memorial, in Mesquite Seep Arizona

Players: Decision by Judge Ikuta, joined by Judge Hurwitz and DJ McShane.

Facts: Border Patrol agents were searching for armed gangs, who preyed on drug smugglers bringing pot across the border. Id. at *1. The agents detected armed suspects (but no victim drug smugglers were around). A gun battle ensued: one agent was killed. Id. 
  Recovered AK-47-style guns, ammo, and backpacks were associated by DNA and prints to Souto-Barraza and Sanchez-Meza. Id. 
  The men were charged with the murder of the agent, Hobbs Act conspiracy to interfere with commerce by robbery, attempted interference with commerce by robbery, assault on the Border Patrol Officers, and carrying and discharging a firearm in furtherance of a crime of violence. Id. at *2.
   Souto-Barraza and Sanchez-Meza were convicted at a trial, and sentenced to life. Id. at *3.

Issue(s): “The defendants argue that there was insufficient evidence to establish they had taken a substantial step [for attempted robbery] because there was no evidence that marijuana smugglers were actually present in their immediate vicinity or that a robbery was imminent . . .  [D]efendants rely primarily on cases considering whether defendants had taken a substantial step toward robbing a store or bank.” Id. at *8.

Held:But here the defendants were targeting individual victims, not a building. In these circumstances, courts place greater weight on other factors, such as whether the defendants are lying in wait for the intended victim, . . . or have begun traveling to the location where the victims may be found. . . . Because the central inquiry is whether the evidence is sufficient to demonstrate that the defendants will carry through with the offense unless interrupted, there is no requirement that the actions constituting the attempt have a particular geographic proximity to the object of the substantive offense. . . . . Nor need a criminal act be imminent. . . . . Because a reasonable jury could have concluded that Soto- Barraza and Sanchez-Meza did all they could to prepare to rob marijuana smugglers they would encounter and would have followed through with the crime had the [Border Patrol] agents not intervened, the district court correctly denied defendants’ motion for judgment of acquittal.” Id. (internal citations and quotations omitted)

Of Note: In this opinion Judge Ikuta also rejects an interesting extradition argument about “dual criminality.” Id. at *4. 
  Much of the decision, however, discusses and distinguishes prior authority on attempted robbery. Id. at *6. Judge Ikuta focuses on the “substantial step” analysis, and distances this case from attempted robbery cases where a building was targeted. Id. at *7. The Ninth appears to create two lines of analysis: one for attempted robberies of banks (or armored cars), and a second for attempted robbery of individuals. Id. at *8. 
  (Why those two fact patterns produce different standards isn’t entirely clear). 
  Yet another quirk in the quirky law of “attempt."

How to Use: The defense did earn one reversal in this case. The government conceded that conspiracy to commit Hobbs Act robbery is not a crime of violence. Id. at 8 & n.8. The Ninth thus reversed the convictions for “carrying and discharging a firearm in furtherance of a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i), (iii).” Id. at 2 & n.2.
  Judge Ikuta curiously buried this reversal in a mem dispo referenced in a footnote. Id. at *8 & n.8. Nonetheless, snag the government’s concession and the Ninth’s holding for future use.
For Further Reading: What was the source of at least two of the assault weapons recovered from the scene of this Border Patrol Agent’s murder? 
  The ATF! 
  In “Operation Fast and Furious,” ATF Agents in Phoenix let suspects walk away with weapons – 2,000 guns, in all. Two of these ATF “walk-away” guns were carried by the crew in the gun battle in this this case. For a remarkable account of this tragic operation, see article here

Image of memorial to Border Patrol Agent Brian Terry from

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


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