1/17/20: Case stemming from the killing of a border patrol agent

In United States v. Soto-Barraza, --- F.3d ---, No. 15-10586 (9th Cir. 2020), the Court affirmed the defendants' convictions (with the exception of one count) and life sentences.

The case stemmed from the 2010 killing of a border patrol agent in Arizona.

The defendants were extradited from Mexico.  They moved to dismiss the indictment, arguing that the extradition was unlawful because Mexico did not have equivalent offenses. They later moved for a declaratory judgment on the same ground.   The district court denied the motions and the Ninth Circuit affirmed.

It held: "In its extradition orders, Mexico listed the United States federal charges at issue, and stated that extradition for these charges conformed to the Treaty’s terms. The orders also identified analogous statutory provisions under Mexico’s Federal Penal Code for each of the offenses in the indictments. The principle of dual criminality does not require that the crimes be identical; rather, only the 'essential character' of the acts criminalized by the laws of each country must be the same, and the laws 'substantially analogous.' Because Mexico elected to extradite the defendants on all charges listed in the indictment, the Treaty’s principles of specialty and dual criminality are satisfied."

The Court also rejected the defendants' challenges to their convictions for attempted Hobbs Act robbery.  [The charge resulted from the defendants' admission that they were in the area to rob drug smugglers]. The Court found the differences between the jury instructions and the statutory elements did not constitute a constructive amendment.  Nor were the jury instructions plainly erroneous: "The omission of the phrases 'against his will' and 'fear of injury' did not make the instruction 'misleading or inadequate to guide the jury’s deliberation.'"

In addition, the Court rejected the defendants' challenge to the district court’s denial of their motion for judgment of acquittal as to attempted robbery.  The Court found there was enough to show they took a substantial step: "a reasonable jury could conclude that Soto-Barraza and Sanchez-Meza took a substantial step toward robbery of marijuana smugglers because they equipped themselves with assault-style weapons (as well as packing food, water and ammunition) and traveled to an area where they expected to find the intended victims. Given that the defendants admitted that they entered the Mesquite Seep to search for marijuana smugglers and to rob them at gunpoint, and given their preparations for doing so, a reasonable jury could conclude that defendants would have carried out the crime once the opportunity presented itself and failed to do so only because they were interrupted by the BORTAC agents."

Of note: In a memorandum filed with the opinion, the Court accepted "the government’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence under 18 U.S.C. § 924(c)(3) in light of the Supreme Court’s decision in United States v. Davis, 139 S. Ct. 2319, 2336 (2019) (holding that 18 U.S.C. § 924(c)(3)(B) is unconstitutionally vague). Therefore, we vacate defendants’ convictions for carrying and discharging a firearm in furtherance of a crime of violence."

1/3/20: Interesting 1326 case

The first published criminal case of 2020 is a reminder that Federal Defenders of San Diego continues leading the way in 1326 litigation.  Although the case was not a defense win, the argument was novel and compelling.

In United States v. Mayea-Pulido, --- F.3d ---, No. 18-50223 (9th Cir. 2020), the Court affirmed the defendant's conviction for illegal reentry in violation of 8 U.S.C. § 1326. 

Here is how the Court framed the issue: "Luis Mayea-Pulido challenges his conviction for illegal reentry, which he contends is invalid because he is not an 'alien' who could be guilty of that crime. Mayea argues that he should have automatically become a United States citizen as a result of the naturalization of one of his parents prior to the reentry in question. But because his parents were married, and the derivative citizenship statute at 8 U.S.C. § 1432(a) (1996) required married parents to both naturalize to confer citizenship to their child, he did not become a citizen. Mayea argues that, by making his parents’ marital status a factor in the derivative citizenship determination, § 1432(a) violates the Constitution’s equal protection guarantee."

The Court continued:  "Mayea’s equal protection challenge focuses on the difference between § 1432(a)(1), which allows the child of parents who are not legally separated to derive citizenship only upon the naturalization of both parents, and the first clause of § 1432(a)(3), which allows the child of legally separated parents to derive citizenship upon the naturalization of one parent if that parent has sole legal custody."

To make a long story short, the Court found there was no equal protection violation and thus affirmed.