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."