United States v. Ivan Soto-Barraza, 947 F.3d 1111

Background

In Dec. 2010, BORTAC agents conducting Operation Huckleberry encountered an armed "rip crew" in the Mesquite Seep; Agent Brian Terry was shot and later died. Two AK-47–style rifles, shell casings, and five backpacks with food, water, and ammunition were recovered. Fingerprint/DNA linked items to Soto-Barraza and Sanchez-Meza.
Both defendants were interviewed in Mexican custody, Mirandized, and confessed (including admissions that they entered from Sonora, took weapons from a cache, and intended to rob marijuana smugglers); Mexico granted U.S. extradition and identified analogous Mexican Penal Code provisions.
A federal grand jury indicted the defendants on nine counts including first-degree murder, Hobbs Act conspiracy and attempted robbery (18 U.S.C. § 1951), assault on federal officers, and § 924(c) firearm offenses. After a 7‑day trial, juries convicted on all counts.
Defendants moved to dismiss/exclude on grounds that extradition violated the U.S.–Mexico Treaty (dual criminality/specialty). They also challenged Hobbs Act jury instructions (claiming constructive amendment/plain error) and moved for judgment of acquittal on attempted robbery (insufficient evidence of a "substantial step").
The Ninth Circuit affirmed except it accepted the government’s concession that conspiracy to commit Hobbs Act robbery is not a "crime of violence," vacating the § 924(c) conviction (Count 9); it upheld extradition, rejected constructive amendment/plain‑error claims about Hobbs Act instructions, and found sufficient evidence of an attempted robbery.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Validity of extradition under U.S.–Mexico Treaty (dual criminality & specialty)	Govt: Mexico expressly authorized extradition and identified analogous Mexican statutes; courts should defer to surrendering sovereign	Defs: Mexican law lacks equivalents (e.g., felony murder, robbery of illegal contraband, assault on federal officer); treaty violated	Extradition valid; dual criminality and specialty satisfied; courts defer to Mexico’s determination.
Jury instruction on attempted Hobbs Act robbery — constructive amendment	Govt: instruction (mirroring model language) properly instructed elements of attempted robbery	Defs: omission of "against his will" and "fear of injury" made instruction closer to extortion, effecting constructive amendment/plain error	Not a constructive amendment; not plain error; model instruction language supported; overwhelming evidence of robbery intent.
Jury instruction on Hobbs Act conspiracy — plain error	Govt: instruction adequate; evidence supports conspiracy verdict	Defs: same omission renders instruction plain error	Not plain error; defendants repeatedly conceded conspiracy; no prejudice.
Sufficiency of evidence for attempted robbery (substantial step)	Govt: defendants equipped with weapons/ammo/packing, traveled to known smuggling corridor, admitted intent to rob — substantial step shown	Defs: no proof smugglers were present or robbery was imminent; acts were mere preparation	Sufficient evidence: travel to target area plus weapons/supplies and admissions suffice to show a substantial step.
§ 924(c) conviction dependent on conspiracy being a crime of violence	Govt: conceded conspiracy to commit Hobbs Act robbery is not a crime of violence	Defs: conviction should be vacated	Court accepted concession and vacated Count 9.

Key Cases Cited

United States v. Van Cauwenberghe, 827 F.2d 424 (9th Cir. 1987) (treaty extradition rights and deference to surrendering sovereign)
Quinn v. Robinson, 783 F.2d 776 (9th Cir. 1986) (dual criminality principle under extradition treaty)
United States v. Iribe, 564 F.3d 1155 (9th Cir. 2009) (application of specialty and deference to surrendering country)
Manta v. Chertoff, 518 F.3d 1134 (9th Cir. 2008) (dual‑criminality requires laws be "substantially analogous")
Oen Yin‑Choy v. Robinson, 858 F.2d 1400 (9th Cir. 1988) (defining "essential character" test for dual criminality)
United States v. Ward, 747 F.3d 1184 (9th Cir. 2014) (constructive amendment doctrine and when trial evidence changes charging terms)
United States v. Von Stoll, 726 F.2d 584 (9th Cir. 1984) (constructive amendment definition)
United States v. Reza‑Ramos, 816 F.3d 1110 (9th Cir. 2016) (plain‑error review of jury instructions)
United States v. Mincoff, 574 F.3d 1186 (9th Cir. 2009) (attempt requires intent plus a substantial step)
United States v. Hofus, 598 F.3d 1171 (9th Cir. 2010) (approving model jury instruction language; harmlessness analysis)
United States v. Brooks, 508 F.3d 1205 (9th Cir. 2007) (plain‑error/harmless error inquiry where jury instruction challenged)