and Submitted May 15, 2018 San Francisco, California
from the United States District Court No.
4:14-cr-01568-CKJ-EJM-1 for the District of Arizona Cindy K.
Jorgenson, District Judge, Presiding
Carlton F. Gunn (argued), Pasadena, California, for
W. Woolridge (argued), Assistant United States Attorney;
Robert L. Miskell, Appellate Chief; Elizabeth A. Strange,
Acting United States Attorney; United States Attorney's
Office, Tucson, Arizona; for Plaintiff-Appellee.
Before: Sidney R. Thomas, Chief Judge, Michelle T. Friedland,
Circuit Judge, and Thomas S. Zilly, [*] District Judge.
panel affirmed the defendant's convictions for assault on
a federal officer, use of a firearm during and in relation to
a crime of violence, possession of a firearm by a convicted
felon, and possession of a firearm by an illegal alien;
reversed his convictions for attempted robbery of the
officer's gun and attempted robbery of the officer's
truck; and remanded.
panel held that in instructing the jury on the elements of
attempted robbery under 18 U.S.C. § 2112, the district
court was correct not to instruct the jury that the defendant
must have formed the specific intent to steal by the time he
used force, but plainly erred by omitting an instruction
that, to convict, the jury needed to conclude beyond a
reasonable doubt that the defendant had formed the specific
intent to steal the gun and truck by the time he tried to
take them. The panel held that the obvious instructional
error affected the defendant's substantial rights and
seriously undermined the fairness and integrity of the
panel rejected the defendant's contentions that the jury
instructions were flawed in two additional ways that warrant
reversal of his other convictions. The panel held that the
general self-defense instruction given at trial adequately
covered the defendant's resistance-to-excessive-force
theory of the case. With respect to the defendant's
convictions under 18 U.S.C. § 111 for assault on a
federal officer and under 18 U.S.C. § 924(c) for use of
a firearm during and in relation to a crime of violence (the
assault), the panel held that the instruction for determining
whether the officer was engaged in the performance of
"official duties" was appropriate.
panel held that the district court did not abuse its
discretion by excluding expert testimony the defendant
belatedly sought to introduce at trial.
Judge Thomas dissented from the majority's reversal of
the defendant's attempted robbery convictions, and
concurred in the remainder of the majority opinion. He wrote
that under the limited standard of review for plain error,
the defendant failed to demonstrate that any instructional
error was not harmless in light of his post-arrest
in part, District Judge Zilly wrote that the district
court's exclusion of the defendant's expert witness,
without any finding that the defendant engaged in willful or
blatant conduct, violated the defendant's fundamental
right to due process, requiring reversal and a new trial on
all appealed counts.
FRIEDLAND, CIRCUIT JUDGE.
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
was responsible for patrolling a vast swath of mountainous
desert stretching across Arizona and New Mexico and running
down to the Mexican border, which contained areas of National
Forest. Apart from the Forest Service, the United States
Border Patrol was the only law enforcement agency operating
in that remote area. While carrying out his duties, Linde
often encountered people who had crossed the border
unlawfully, some of whom were smuggling drugs. Many of those
people fell victim to the heat and harsh terrain. Stranded
without food and water, they sometimes sought help from
federal officers on patrol. Linde carried water and other
supplies in his truck to prepare for such encounters.
during a patrol, Linde received a report of suspicious people
walking along a road near an area of National Forest. Linde
called Border Patrol and was asked to respond. As he had many
times before, Linde agreed to assist and set out in his
truck, which was clearly marked as a law enforcement vehicle.
Before long, he encountered two men, one of whom had scrapes
and scratches on his face. The other, who did not appear
injured, was Moreno.
men walked up to the truck. Linde offered them water, but
they declined. Linde then directed Moreno and his companion
to come to the front of the truck and put their hands on the
hood. The injured man complied, but Moreno did not. With
verbal commands failing, Linde drew his gun. A struggle
between Linde and Moreno began moments later, the details of
which are in dispute.
testified in Moreno's subsequent jury trial that he
ordered Moreno to turn away and put his hands on his head.
This time, Moreno complied. Linde approached with his gun
drawn. When he was a few feet away, Linde holstered his
weapon and pulled out handcuffs. After cuffing Moreno's
right hand, Linde began to cuff Moreno's left.
trial, Linde admitted not remembering exactly what happened
next, but he recalled being yanked forward, then going blank.
The next thing he knew, he and Moreno were fighting. Moreno
went for the gun. Linde threw his hands down to his holster,
one covering the handle of the gun, the other fending off
responded by throwing Linde to the ground. Entangled, the two
men rolled towards an embankment on the side of the road.
Moreno started pummeling Linde in the face. Linde blacked out
briefly before feeling his gun being pulled out of its
holster. Two shots rang out. Having lost control of his
weapon, Linde flailed his arms, searching for the gun.
testified that he located the weapon right before Moreno
could take aim at his chest. Linde pushed Moreno's hand
away and then rolled onto his side, just as another shot
discharged near his head. Linde grabbed Moreno's wrist,
trying to keep the gun pointed away. Moreno nearly broke
free, but Linde grabbed him by the neck, wrapped his leg
around Moreno's throat, and squeezed. Moreno fired
several shots skyward before dropping the gun.
grabbed it. He aimed at Moreno and pulled the trigger.
Nothing happened. Linde rolled away, backing up to put
distance between them. Moreno-on his knees, hands in the
air-cried "no, no, no, no." Thinking the clip was
empty, Linde reloaded. Moreno bolted for the truck.
Moreno ran, Linde realized that the gun was jammed. Linde
quickly cleared the jam but, knowing that his truck contained
no weapons and that its security system would prevent Moreno
from driving away, did not fire. Instead, as he told the
jury, Linde went to the truck, aimed the gun at Moreno's
chest, and threatened to kill him if he moved. Linde then
grabbed the radio and reported, "Shots fired."
gave law enforcement a very different account of the
incident. In a post-arrest interview that was recorded and
later played for the jury, Moreno admitted that he initially
refused to comply with Linde's commands but claimed that
he sat down as the officer approached with handcuffs. By
Moreno's telling, Linde never holstered the gun but
instead kept his finger on the trigger, with the barrel
pointed at Moreno. Fearing for his life and wanting to return
to Mexico rather than go to prison, Moreno tried to grab the
gun. A shot went off. Moreno tackled Linde with all the force
he could muster. Two more shots rang out as the two men
struggled on the ground, each trying to wrest the gun from
claimed that, by this point, he could have beaten Linde
unconscious. Instead, Moreno slammed Linde's hand onto
the ground, forcing him to release the gun. Moreno seized it,
fired the remaining rounds into the air, and tossed the gun
aside. He ran for the truck, thinking he would drive to the
border and leave it there.
recounted that, when he got behind the wheel, he suddenly
realized that he had been acting stupidly and that he should
not drive away. For that reason, Moreno explained, he got out
of the truck and gave himself up voluntarily.
was charged with assault on a federal officer, attempted
murder of a federal officer, use of a firearm during and in
relation to a crime of violence, possession of a firearm by a
convicted felon, possession of a firearm by an illegal alien,
attempted robbery of Linde's gun, attempted robbery of
Linde's truck, and illegal reentry. At trial, the jury
hung on the attempted murder charge but convicted on the
others. The district court sentenced Moreno to just over 43
years in prison.
appeal, Moreno challenges all of his convictions except the
one for illegal re-entry. We reverse both of Moreno's