United States v. Ivan Soto-Barraza ( 2020 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 15-10586
Plaintiff-Appellee,
D.C. No.
v. 4:11-cr-00150-
DCB-BPV-3
IVAN SOTO-BARRAZA,
Defendant-Appellant.
UNITED STATES OF AMERICA, No. 15-10589
Plaintiff-Appellee,
v. D.C. No.
4:11-cr-00150-
JESUS LIONEL SANCHEZ-MEZA, DCB-BPV-5
AKA Leonel Meza-Portillo, AKA
Lionel Meza-Portillo, AKA Leonel
Portillo-Meza, AKA Lionel Portillo- OPINION
Meza, AKA Jesus Leonel Sanchez-
Meza,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Arizona
David C. Bury, District Judge, Presiding
2 UNITED STATES V. SOTO-BARRAZA
Argued and Submitted October 17, 2017
Submission Vacated January 24, 2018
Resubmitted January 17, 2020
San Francisco, California
Filed January 17, 2020
Before: Sandra S. Ikuta and Andrew D. Hurwitz, Circuit
Judges, and Michael J. McShane,* District Judge.
Opinion by Judge Ikuta
SUMMARY**
Criminal Law
The panel affirmed two defendants’ convictions for first-
degree murder of a Border Patrol agent, conspiracy to
interfere with and attempted interference with commerce by
robbery in violation of the Hobbs Act, and assault on a U.S.
Border Patrol Agent; and vacated the defendants’ convictions
for carrying and discharging a firearm in furtherance of a
crime of violence.
*
The Honorable Michael J. McShane, United States District Judge for
the District of Oregon, sitting by designation.
**
This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
UNITED STATES V. SOTO-BARRAZA 3
The panel held that the defendants were properly
extradited in accordance with the United States’s treaty with
Mexico.
The panel held that the district court’s jury instructions
for the Hobbs Act offenses were not plainly erroneous, and
rejected the defendants’ argument that the instructions
constituted a constructive amendment of the indictment that
allowed them to be convicted of extortion.
The panel held that the district court properly denied the
defendants’ motion for judgment of acquittal as to attempted
robbery because the evidence was sufficient to establish that
the defendants took a substantial step toward commission of
the robbery.
In a concurrently filed memorandum disposition, the
panel accepted the government’s concession that conspiracy
to commit Hobbs Act robbery is not a crime of violence and
thus vacated the defendants’ convictions under 18 U.S.C.
§ 924(c).
COUNSEL
Ramiro S. Flores (argued), Law Office of Ramiro S. Flores
P.L.L.C., Tucson, Arizona; Andrea Lynn Matheson (argued),
Matheson Law Firm P.C., Tucson, Arizona; for Defendants-
Appellants.
David D. Leshner (argued), Special Attorney for the United
States; Jeff Sessions, Attorney General; Office of the United
States Attorney, San Diego, California; for Plaintiff-Appellee.
4 UNITED STATES V. SOTO-BARRAZA
OPINION
IKUTA, Circuit Judge:
Ivan Soto-Barraza and Jesus Lionel Sanchez-Meza appeal
their convictions for the first degree murder of United States
Border Patrol Agent Brian Terry; conspiracy to interfere with
and attempted interference with commerce by robbery in
violation of the Hobbs Act; assault on a U.S. Border Patrol
Agent; and carrying and discharging a firearm in furtherance
of a crime of violence. We conclude that the defendants were
properly extradited in accordance with the terms of the
United States’s treaty with Mexico. We hold that the jury
instructions for the Hobbs Act offenses were not plainly
erroneous, and reject defendants’ argument that the
instructions constituted a constructive amendment of the
indictment. And we conclude that the evidence was sufficient
to establish that the defendants took a substantial step toward
commission of the robbery offense.1 For the reasons below
and in our concurrently-filed memorandum disposition, ___
Fed. App’x ___ (9th Cir. 2020), we vacate defendants’
convictions on Count 9 and affirm in all other respects.
I
In September 2010, the United States Border Patrol
Tactical Unit (BORTAC) for the Tucson sector launched
Operation Huckleberry. The goal of Operation Huckleberry
was to apprehend gangs that preyed on drug smugglers in the
Arizona Mesquite Seep.
1
We also deny defendants’ motion to strike the government’s letter
pursuant to Rule 28(j) of the Federal Rules of Appellate Procedure.
UNITED STATES V. SOTO-BARRAZA 5
The Mesquite Seep is an area of rough terrain, covered
with canyons, cliffs, and steep hills, about 11 miles north of
the Mexican border. At the time Operation Huckleberry
commenced, except for two foot trails, the area was
accessible only by all-terrain vehicles. The Mesquite Seep
was well known as part of a drug trafficking corridor. Bands
of eight to twelve men would carry 45 or more pounds of
marijuana in homemade backpacks as they traveled
northbound from Mexico into the Seep, and then east to
Interstate 19. This smuggling corridor was also well known
to “rip crews,” small gangs of bandits armed with assault
weapons who stalked the smugglers to steal their marijuana.
Operation Huckleberry was aimed at stopping rip crew
activity in the Seep.
In December 2010, six BORTAC agents were deployed
to the Mesquite Seep for a 48-hour operation. The team
consisted of Agents William Castano (the team leader),
Gabriel Fragoza, Timothy Keller, Brian Terry, Christopher
Conner, and Charles Veatch. The agents were deployed in an
area commonly used for smuggling.
Near the end of the 48 hours, the Nogales station alerted
the team to potential traffic moving east towards the team’s
position. Three agents moved to a line above a wash. Using
a thermal monocular, Agent Castano saw armed men
approaching. At least two of the men had weapons in the
“ready position,” aimed forward and ready to fire. As they
approached, Agent Castano yelled “Policia!” Some of the
men ran; others stopped, turned towards the agents, and
raised their weapons. In response, Agent Fragoza fired his
non-lethal shotgun, while announcing in Spanish: “get down,
get down.” The agents saw multiple muzzle flashes from the
6 UNITED STATES V. SOTO-BARRAZA
guns in the wash, and returned fire. Agent Terry was hit by
a gunshot from the wash, and later died of the wound.
At the crime scene, the FBI recovered two AK-47-style
assault rifles and five shell casings, but could not determine
whether either of the rifles fired the bullet that killed Agent
Terry. The FBI also found five backpacks containing food,
water, and ammunition. Fingerprint and DNA analysis linked
the rifles, backpacks, and the backpacks’ contents to Soto-
Barraza and Sanchez-Meza.
A grand jury indicted Soto-Barraza, Sanchez-Meza, and
the four other rip crew members on nine counts, charging the
defendants with murder of Agent Terry; Hobbs Act
conspiracy to interfere and attempted interference with
commerce by robbery; assault on four Border Patrol officers;
and carrying and discharging a firearm in furtherance of a
crime of violence.2
Almost a year and a half later, Mexican authorities
arrested Sanchez-Meza and transported him to Mexico City,
where he was interviewed by an FBI agent. After being
advised of his Miranda rights, Sanchez-Meza confessed to his
involvement in the Mesquite Seep incident. He admitted that
he entered Arizona from Sonora, obtained AK-47-style
weapons from a hidden cache, and began searching for
2
This indictment was ultimately replaced by a Fifth Superseding
Indictment (the operative pleading here), but the counts remained the
same. The counts at issue here are: Count 1, first-degree murder of United
States Border Patrol Agent Brian Terry, 18 U.S.C §§ 1111, 1114; Count
3, conspiracy to interfere with commerce by robbery, 18 U.S.C. § 1951;
Count 4, attempted interference with commerce by robbery, 18 U.S.C.
§ 1951; and Count 9, carrying and discharging a firearm in furtherance of
a crime of violence, 18 U.S.C. § 924(c)(1)(A)(i), (iii).
UNITED STATES V. SOTO-BARRAZA 7
marijuana traffickers in order to rob them at gunpoint. When
shown photographs of assault rifles recovered at the crime
scene, Sanchez-Meza stated they were “similar types to the
weapon he carried.” Sanchez-Meza signed a written
declaration acknowledging his confession.
A year later, Mexican authorities arrested Soto-Barraza.
Two FBI agents interviewed Soto-Barraza in Spanish in a
Mexican prison during the following month. After being
advised of his Miranda rights, Soto-Barraza also admitted his
involvement in the events surrounding the shooting. Like
Sanchez-Meza, Soto-Barraza admitted that he entered the
United States on foot from Sonora into Arizona; obtained
weapons from a hidden cache of firearms; and planned to rob
marijuana smugglers. He also admitted to carrying a loaded
assault rifle and stated that a photograph of one of the rifles
found in the wash was similar to the weapon he carried that
night.
The government requested extradition of the defendants
and Mexico granted the requests. The orders from the
Mexican Department of Foreign Affairs stated that: “the
formal international extradition request made by the
government of the United States of America, regarding the
person sought, adheres to the postulates contained in the
Extradition Treaty between the United Mexican States and
the United States of America and that the extradition of the
aforementioned requested person is warranted; therefore the
Department determines that there are sufficient elements to
grant, and does grant, the extradition” of both defendants.
The orders stated that each defendant could be prosecuted in
district court for all the charges listed in the indictment, and
that the offenses stated in each count met the statutory
8 UNITED STATES V. SOTO-BARRAZA
definitions contained in Mexico’s Federal Penal Code, in
effect at the time of the events.3
Soto-Barraza moved to dismiss the indictment, arguing
that his extradition was unlawful because Mexico did not
have equivalent offenses. He later moved for a declaratory
judgment on the same ground. Sanchez-Meza subsequently
joined the motion, which the district court denied.
The seven-day trial began in September 2015. After the
government rested, the defense moved for a directed verdict,
contending that the rip crew’s preparations did not constitute
a “substantial step” necessary for an attempted robbery. The
court denied the motion.
The jury returned guilty verdicts on all nine counts. The
court denied the defense’s post-conviction motion for a
judgment of acquittal and sentenced Soto-Barraza and
Sanchez-Meza to life imprisonment for Count 1; concurrent
240-month sentences for Counts 3, 6, 7, and 8; and
consecutive sentences of 120 months for Count 9. This
appeal followed.
II
We first address defendants’ claim that the district court
erred in denying their motion to dismiss the indictment and
3
The orders established that Count 1 (first degree murder) met the
statutory definition in §§ 302 and 307 of Mexico’s Federal Penal Code;
Count 3 (conspiracy) met the statutory definition in § 164 of Mexico’s
Federal Penal Code; Count 4 (attempted robbery) met the statutory
definition in §§ 367 and 371 of Mexico’s Federal Penal Code; and Counts
5, 6, 7, and 8 (assault against a federal official) met the statutory definition
of §§ 288 and 293 of Mexico’s Federal Penal Code.
UNITED STATES V. SOTO-BARRAZA 9
for declaratory relief on the ground that their extradition
violated the Mexico-United States Extradition Treaty.
“The right to demand and obtain extradition of an accused
criminal is created by treaty.” United States v. Van
Cauwenberghe, 827 F.2d 424, 428 (9th Cir. 1987) (quoting
Quinn v. Robinson, 783 F.2d 776, 782 (9th Cir. 1986))
(internal quotation marks omitted). The Treaty, effective
January 25, 1980, imposes two requirements relevant to
defendants’ motions.
First, Article 17 of the Treaty incorporates the “rule of
specialty,” which precludes the requesting country from
prosecuting a defendant for any offense other than that for
which the surrendering country consented to extradite, unless
surrendering country approves. See United States v. Iribe,
564 F.3d 1155, 1158 (9th Cir. 2009). Article 17 states: “A
person extradited under the present Treaty shall not be
detained, tried or punished in the territory of the requesting
Party for an offense other than that for which extradition has
been granted nor be extradited by that Party to a third State,”
absent certain exceptions not relevant here.
Second, Article 2 incorporates the principle of “dual
criminality,” that “an accused person can be extradited only
if the conduct complained of is considered criminal by the
jurisprudence or under the laws of both the requesting and
requested nations.” Quinn, 783 F.2d at 783. Article 2(1)
provides that “[e]xtradition shall take place, subject to this
Treaty, for wilful acts which fall within any of the clauses of
the Appendix and are punishable in accordance with the laws
of both Contracting Parties by deprivation of liberty the
maximum of which shall not be less than one year.” The
Appendix to the Treaty lists 31 categories of offenses,
10 UNITED STATES V. SOTO-BARRAZA
including murder and robbery. Article 2(3) provides that
“[e]xtradition shall also be granted for wilful acts which,
although not being included in the Appendix, are punishable,
in accordance with the federal laws of both Contracting
Parties, by a deprivation of liberty the maximum of which
shall not be less than one year.”
We “defer to a surrendering sovereign’s reasonable
determination that the offense in question is extraditable.”
United States v. Saccoccia, 58 F.3d 754, 766 (1st Cir. 1995);
see also Van Cauwenberghe, 827 F.2d at 429 (courts should
accord “proper deference” to “a surrendering country’s
decision as to whether a particular offense comes within a
treaty’s extradition provision”). But we review de novo the
“district court’s decision that an offense is an extraditable
crime.” Van Cauwenberghe, 827 F.2d at 428. We likewise
review de novo the district court’s “[i]nterpretation of an
extradition treaty, including whether the doctrines of dual
criminality and specialty are satisfied.” United States v.
Anderson, 472 F.3d 662, 666 (9th Cir. 2006).
In their motions to dismiss and for declaratory relief,
Soto-Barraza and Sanchez-Meza argued that their extradition
for felony murder, assault, and conspiracy (or attempt) to
interfere with commerce by robbery violated the Treaty
because Mexico does not criminalize these exact offenses and
they are not listed in the Treaty. Relying on expert testimony
of a law professor, the defendants argue that the Mexican
statutes listed in the Treaty criminalize only simple homicide,
and felony murder is not “punishable in accordance with the
laws” of Mexico. They also argue that Mexican law does not
punish interference with commerce by robbery of an illegal
substance, and does not recognize the crime of assault on a
federal official unless the official was physically injured or
UNITED STATES V. SOTO-BARRAZA 11
feared for his life. Finally, defendants argue that the Treaty
precludes the government from imposing a true life sentence
for their offenses, because life sentences in Mexico last no
more than 70 years.
Their arguments fail. 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.” Manta v. Chertoff, 518 F.3d 1134, 1141 (9th Cir.
2008) (quoting Oen Yin-Choy v. Robinson, 858 F.2d 1400,
1404 (9th Cir. 1988)). 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. See Iribe, 564 F.3d at 1160; Van Cauwenberghe,
827 F.2d at 428–29.
III
We next address defendants’ claim that the district court
erred in instructing the jury on conspiracy to interfere with
and attempted interference with commerce by robbery, in
violation of 18 U.S.C. § 1951 (the Hobbs Act). Because
defendants did not object to these instructions at trial, we
review for plain error. See United States v. Reza-Ramos,
816 F.3d 1110, 1123 (9th Cir. 2016).
We first turn to the district court’s instruction for Count
4, attempted interference with commerce by robbery. Both
12 UNITED STATES V. SOTO-BARRAZA
parties requested that the district court give Ninth Circuit
Model Instruction 8.142, entitled “Hobbs Act Extortion or
Attempted Extortion by Force.”4 The district court gave the
proposed instruction, which included the following element:
“First, the Defendants intended to induce drug smugglers to
part with property by the wrongful use of actual or threatened
force, violence, or fear.”5 The Hobbs Act defines robbery in
4
At the time, the Ninth Circuit model instructions did not have an
instruction for Hobbs Act robbery. In December 2016, the committee
added a new instruction for Hobbs Act robbery. Model Crim. Jury Instr.
9th Cir. 8.143A (2010 ed.), http://www3.ce9.uscourts.gov/jury-
instructions/sites/default/files/WPD/Criminal_Instructions_2017_9.pdf
(last updated Sep. 2017) [hereinafter 2017 Instructions]. The committee
most recently modified the instructions for Hobbs Act robbery in April
2019. See Model Crim. Jury Instr. 9th Cir. 8.143A (2010 ed.),
http://www3.ce9.uscourts.gov/jury-instructions/sites/default/files/WPD/
Criminal_Instructions_2019_12_0.pdf (last updated Dec. 2019); Manual
of Model Criminal Jury Instructions, http://www3.ce9.uscourts.gov/jury-
instructions/model-criminal (stating that Instructions 8.143A was last
modified in April 2019).
5
The full instruction read:
The defendants are charged in Count 4 of the
indictment with attempted interference with commerce
by robbery in violation of Section 1951 of Title 18 of
the United States Code. In order for the defendants to
be found guilty of that charge, the government must
prove each of the following elements beyond a
reasonable doubt:
First, the defendant intended to induce drug
smugglers to part with property by the wrongful use of
actual or threatened force, violence, or fear;
Second, the defendants acted with the intent to
obtain property;
UNITED STATES V. SOTO-BARRAZA 13
a slightly different manner as “the unlawful taking or
obtaining of personal property from the person or in the
presence of another, against his will, by means of actual or
threatened force, or violence, or fear of injury, immediate or
future, to his person or property, or property in his custody or
possession.” 18 U.S.C. § 1951(b)(1). The instruction differs
from the statutory definition, in that it omits the language that
the defendant took property from the victim “against his will”
by means of “fear of injury,” not just “fear.”
Soto-Barraza and Sanchez-Meza now argue that the
court’s instruction is closer to the definition of “extortion”
under the Hobbs Act, which is “the obtaining of property
from another, with his consent, induced by wrongful use of
actual or threatened force, violence, or fear, or under color of
official right.” 18 U.S.C. § 1951(b)(2). According to the
defendants, the court’s failure to provide instructions that
included the phrases “against his will” and “fear of injury”
resulted in a constructive amendment of the indictment that
allowed them to be convicted of extortion, which is a per se
reversible error.
Third, commerce from one state to another would
have been affected in some way; and
Fourth, the defendants did something that was a
substantial step toward committing the crime.
Mere preparation is not a substantial step toward
committing the crime. To constitute a substantial step,
a defendant’s act or actions must demonstrate that the
crime will take place unless interrupted by independent
circumstances.
14 UNITED STATES V. SOTO-BARRAZA
We disagree. A constructive amendment “occurs when
the charging terms of the indictment are altered, either
literally or in effect, by the prosecutor or a court after the
grand jury has last passed upon them,” United States v. Ward,
747 F.3d 1184, 1189 (9th Cir. 2014) (quoting United States
v. Von Stoll, 726 F.2d 584, 586 (9th Cir. 1984)), such as
“where (1) there is a complex of facts [presented at trial]
distinctly different from those set forth in the charging
instrument, or (2) the crime charged [in the indictment] was
substantially altered at trial, so that it was impossible to know
whether the grand jury would have indicted for the crime
actually proved.” United States v. Adamson, 291 F.3d 606,
615 (9th Cir. 2002) (alterations in original) (internal quotation
marks omitted). Neither of those errors is present here. The
government indicted the defendants for Hobbs Act robbery
and adduced evidence to prove that offense, offering no
evidence that the defendants engaged in extortion. We reject
constructive amendment claims when the government does
not introduce evidence at trial “that would enable the jury to
convict the defendant for conduct with which he was not
charged.” Ward, 747 F.3d at 1191.
The defendants’ claims are better interpreted as a
challenge to the jury instructions. Compare United States v.
Massey, 419 F.3d 1008, 1010 (9th Cir. 2005) (reviewing a
claim that the jury instruction misstated material elements of
a statute), with Ward, 747 F.3d at 1191–92 (reviewing
whether defendant was convicted of a crime not charged in
the indictment). Viewing the defendants’ claim in this light,
we conclude that the slight differences between the court’s
instructions to the jury and the statutory definition of robbery
do not constitute plain error. See Reza-Ramos, 816 F.3d
at 1123. The omission of the phrases “against his will” and
“fear of injury” did not make the instruction “misleading or
UNITED STATES V. SOTO-BARRAZA 15
inadequate to guide the jury’s deliberation.” See United
States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010) (quoting
United States v. Frega, 179 F.3d 793, 806 n.16 (9th Cir.
1999)); see also United States v. Tavakkoly, 238 F.3d 1062,
1066 (9th Cir. 2001) (“Improper jury instructions will rarely
justify a finding of plain error.”) (quoting United States v.
Marin-Cuevas, 147 F.3d 889, 893 (9th Cir. 1998)). Our
conclusion that any error was not “plain” is further supported
by the fact that the seven judges who comprise the Ninth
Circuit Jury Instructions Committee adopted identical
language to that used by the district court here for model
instructions on Hobbs Act attempted robbery: “the defendant
[attempted to induce][induced] [name of victim] to part with
property by the wrongful use of actual or threatened force,
violence, or fear.” 2017 Instructions 8.142A, 8.143A; see
also Hofus, 598 F.3d at 1174–75 (no error when district
court’s instruction “mirrored” the model instruction).6
Moreover, even if the omission of the two phrases
(“against his will” and “fear of injury”) qualified as an error
that was plain, these defendants’ substantial rights were not
affected. Because the government presented overwhelming
evidence that the rip crew members intended to take
marijuana from the smugglers by force and against their will,
including Soto-Barraza’s and Sanchez-Meza’s confessions,
there is no significant possibility that the jury might have
acquitted the defendants if the instruction had included the
omitted language. See United States v. Brooks, 508 F.3d
1205, 1208 (9th Cir. 2007) (holding that a jury instruction is
not plainly erroneous if there is not “a significant possibility
6
While the committee more recently revised Instruction 8.143A,
supra note 4, the district court’s instruction was not plain error because the
committee previously used the same language as the court.
16 UNITED STATES V. SOTO-BARRAZA
the jury might have acquitted if it had considered the matter”)
(quoting United States v. Steward, 16 F.3d 317, 320 (9th Cir.
1994)).7
IV
Finally, we consider Soto-Barraza and Sanchez-Meza’s
challenge to the district court’s denial of their motion for
judgment of acquittal as to attempted robbery. We review de
novo whether sufficient evidence supports a guilty verdict.
United States v. Rosales-Aguilar, 818 F.3d 965, 970 (9th Cir.
2016). We “assess the evidence in the light most favorable to
the prosecution, determining whether any rational trier of fact
could have found the essential elements of the crime beyond
a reasonable doubt.” Id. at 971 (quoting United States v.
Stewart, 420 F.3d 1007, 1014–15 (9th Cir. 2005)).
“[A]n attempt conviction requires evidence that a
defendant intended to violate the statute and took a
substantial step toward completing the violation.” United
States v. Mincoff, 574 F.3d 1186, 1195 (9th Cir. 2009)
(alterations in original) (quoting United States v. Meek,
366 F.3d 705, 720 (9th Cir. 2004)). “Mere preparation” is not
a substantial step, Hernandez-Cruz v. Holder, 651 F.3d 1094,
1102 (9th Cir. 2011), but we have acknowledged that “[t]he
7
For the same reason, we reject defendants’ argument that the district
court plainly erred in omitting the phrases “against his will” and “fear of
injury” from its instruction on conspiracy to interfere with commerce by
robbery, Count 3, which stated that “there was an agreement between two
or more persons to induce drug smugglers to part with property by the
wrongful use of actual or threatened force, violence, or fear.” Sanchez-
Meza and Soto-Barraza repeatedly conceded their guilt to conspiracy in
their opening statements and closing arguments. See Brooks, 508 F.3d
at 1208.
UNITED STATES V. SOTO-BARRAZA 17
difference between making preparations and taking a
substantial step toward the commission of a crime is one of
degree,” Walters v. Maass, 45 F.3d 1355, 1359 (9th Cir.
1995). “The line between mere preparation and a substantial
step is inherently fact specific; conduct that would appear to
be mere preparation in one case might qualify as a substantial
step in another.” United States v. Villegas, 655 F.3d 662, 669
(7th Cir. 2011). While acknowledging that it is difficult to
identify “the point at which the defendants’ activities ripen
into an attempt,” United States v. Harper, 33 F.3d 1143, 1148
(9th Cir. 1994), we have generally characterized that point as
when a defendant’s actions demonstrate “that the crime will
take place unless interrupted by independent circumstances.”
Mincoff, 574 F.3d at 1195 (quoting United States v. Goetzke,
494 F.3d 1231, 1237 (9th Cir. 2007)).
In addressing this fact-specific inquiry, courts generally
focus on factors such as whether defendants planned to
commit an offense, see United States v. Moore, 921 F.2d 207,
209 (9th Cir. 1990), and whether defendants equipped
themselves with the items needed to commit the offense, see
United States v. Muratovic, 719 F.3d 809, 816 (7th Cir.
2013); United States v. Snell, 627 F.2d 186, 188 (9th Cir.
1980) (per curiam). The key question is whether “the crime
will take place unless interrupted by independent
circumstances.” Mincoff, 574 F.3d at 1195 (quoting Goetzke,
494 F.3d at 1237).
In addition to these general factors, courts also focus on
the type of crime at issue. In bank robbery cases, courts
frequently consider whether the defendant approached the
targeted building to commit the offense. See Moore,
921 F.2d at 209 (holding that a defendant took a substantial
step when he walked towards a bank wearing a ski mask,
18 UNITED STATES V. SOTO-BARRAZA
holding gloves, and carrying a concealed loaded gun,
combined with an informant’s details about the planned
offense); see also Rumfelt v. United States, 445 F.2d 134,
135–37 (7th Cir. 1971) (defendant took a substantial step by
standing in front of a bank while wearing a ski mask and
using a rifle to intimidate a passerby into trying to open the
door to the bank) (cited with approval in United States v.
Buffington, 815 F.2d 1292, 1302 (9th Cir. 1987)). If the
defendants did not move toward the targeted bank, but merely
conducted surveillance in its vicinity, defendants may not
have taken a substantial step. See Buffington, 815 F.2d at
1303; see also Harper, 33 F.3d at 1147 (holding there was no
substantial step where defendants “never made a move
toward the victims or the Bank to accomplish the criminal
portion of their intended mission”); United States v. Still,
850 F.2d 607, 610 (9th Cir. 1988) (holding there was no
substantial step where the facts “do not establish either actual
movement toward the bank or actions that are analytically
similar to such movement”).
In cases involving attempted robberies of armored trucks,
courts have similarly focused on whether the defendants laid
in wait where the truck was expected. See Muratovic,
719 F.3d at 816 (holding that the defendant took a substantial
step towards robbery of an armored car where the defendant
had gathered everything necessary to rob the armored car,
waited for the car in a parking lot with the intention of
following the car to a highway rest stop and robbing it, and
failed to carry through only because he saw activities
indicating that “the truck’s driver had seen his surveillance”);
United States v. Chapdelaine, 989 F.2d 28, 30–31, 33 (1st
Cir. 1993) (holding that the defendant took a substantial step
toward robbery of an armored car when he gathered the
necessary weapons and planned the robbery; drove to a
UNITED STATES V. SOTO-BARRAZA 19
parking lot to lay in wait for the car; but aborted the plan at
the last minute when the armored car left the parking lot just
as the defendant arrived).
And in cases involving planned offenses against
individual victims, courts have focused on whether
defendants had begun traveling to the location where the
victim was expected to be found. See United States v.
Washington, 653 F.3d 1251, 1266 (10th Cir. 2011) (holding
that a defendant took a substantial step towards attempted
murder-for-hire when he equipped himself with a pair of latex
gloves to avoid fingerprints and traveled towards “a city in
which he had no apparent business beyond the planned hit”
with “the person who had facilitated the murder-for-hire
agreement.”); United States v. Young, 613 F.3d 735, 743 (8th
Cir. 2010) (holding that defendant took substantial step
towards enticement of a minor when he traveled to a motel
where he expected to meet the victim); United States v.
Khalil, 279 F.3d 358, 368–69 (6th Cir. 2002) (holding that a
defendant took a substantial step toward committing a violent
crime by participating with motorcycle club members who
“organized themselves, armed themselves, and traveled in
groups to locations where they expected to find their intended
victims,” and aborted their efforts only “due to police
interference”); see also Model Penal Code § 5.01(2)(a)
(“lying in wait, searching for or following the contemplated
victim of the crime” can constitute a substantial step).
In this case, taking the evidence in the light most
favorable to the government, 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
20 UNITED STATES V. SOTO-BARRAZA
to an area where they expected to find the intended victims.
See Khalil, 279 F.3d at 368. 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.
The defendants argue that there was insufficient evidence
to establish they had taken a substantial step because there
was no evidence that marijuana smugglers were actually
present in their immediate vicinity or that a robbery was
imminent. In making this argument, defendants rely
primarily on cases considering whether defendants had taken
a substantial step toward robbing a store or bank. See
Hernandez-Cruz, 651 F.3d at 1102–03; Harper, 33 F.3d
at 1147; Still, 850 F.2d at 610; Buffington, 815 F.2d at 1303.
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, see Muratovic, 719 F.3d
at 816, or have begun traveling to the location where the
victims may be found, see Khalil, 279 F.3d at 368. 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.” United
States v. Turner, 501 F.3d 59, 69 (1st Cir. 2007); see also
Villegas, 655 F.3d at 669 (defendant took substantial step
towards attempted robbery of armored car even though he
was a mile away from the location of the planned robbery).
Nor need a criminal act be imminent. See Mincoff, 574 F.3d
UNITED STATES V. SOTO-BARRAZA 21
at 1190–91, 1195 (holding that there was a substantial step
even though the attempted drug transaction took place over
the phone across a ten-day period); see also United States v.
Sanchez, 615 F.3d 836, 844 (7th Cir. 2010) (finding a
substantial step made even though crime was at least a week
away).
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 BORTAC
agents not intervened, the district court correctly denied
defendants’ motion for judgment of acquittal. See Mincoff,
574 F.3d at 1195.8
AFFIRMED IN PART AND VACATED IN PART
8
As discussed in the concurrently filed memorandum disposition, ___
Fed. App’x ___ (9th Cir. 2020), we accept the government’s concession
that conspiracy to commit Hobbs Act robbery is not a crime of violence
and thus vacate defendants’ convictions on Count 9.