FOR PUBLICATION UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT UNITED STATES OF AMERICA, No. 15-10510 Plaintiff-Appellee, D.C. No. v. 4:14-cr-01568- CKJ-EJM-1 JESUS EDER MORENO ORNELAS, AKA Jesus Edgar Juanni Moreno, AKA Jesus Eder Mendivel- OPINION Mendivel, Defendant-Appellant. Appeal from the United States District Court for the District of Arizona Cindy K. Jorgenson, District Judge, Presiding Argued and Submitted May 15, 2018 San Francisco, California Filed October 25, 2018 Before: Sidney R. Thomas, Chief Judge, Michelle T. Friedland, Circuit Judge, and Thomas S. Zilly, * District Judge. * The Honorable Thomas S. Zilly, United States District Judge for the Western District of Washington, sitting by designation. 2 UNITED STATES V. MORENO ORNELAS Opinion by Judge Friedland; Partial Concurrence and Partial Dissent by Chief Judge Thomas; Dissent by Judge Zilly SUMMARY ** Criminal Law The 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. The 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 proceedings. ** 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. MORENO ORNELAS 3 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. The panel held that the district court did not abuse its discretion by excluding expert testimony the defendant belatedly sought to introduce at trial. Chief 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 ...
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