In United States v. Moreno Ornelas, --- F.3d ---, No.15-10510 (9th Cir. 2018), the Court affirmed the defendant’s convictions for
assault on a federal officer (and related charges) but reversed his convictions
for attempted robbery.
The opinion begins: "On a summer day in the Arizona desert, not far from our
country’s southern border, United States Forest Service Officer Devin Linde
(“Linde”) encountered Defendant-Appellant Jesus Eder Moreno Ornelas (“Moreno”).
A struggle ensued. Afterwards, each man claimed that the other had forced him
into a fight for his life. Moreno was convicted at trial of multiple federal
crimes. We reverse his convictions for attempted robbery of Linde’s gun and
vehicle because there was plain error in the jury instructions on those counts,
but we otherwise affirm."
As to the reversal, a divided panel concluded the district
court plainly erred in failing to instruct the jury on specific intent. It explained, the federal robbery
statute, 18 USC 2112, simply codified the common law crime. And “Common law robbery was . . . a specific
intent crime.” Thus, given the
well-settled elements of common law robbery as well as [the Supreme Court's] clear
indication that § 2112 incorporates the common law, failing to instruct the
jury on specific intent was an obvious omission.
As to the other counts of conviction, the Court rejected the
defendant’s arguments: "Moreno urges us
to reverse all of his remaining convictions on the ground that the jury
instructions given at trial failed to present resistance to excessive force as
a defense, and that the instructions thus failed to cover his theory of the
case. Second, Moreno challenges his convictions for assault on a federal
officer under 18 U.S.C. § 111 and for use of a firearm during and in relation
to a crime of violence (the assault) under 18 U.S.C. § 924(c), contending that
the instructions improperly defined 'official duties.' Neither argument is
persuasive.”
Finally, the Court found no error in the district court’s
exclusion of the defendant’s expert based on his untimely expert notice, just
days before trial.
As noted, this was a split decision with two dissents on
different issues. It is worth a read for
any assault cases.
