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United States v. Baires-Reyes

United States District Court, N.D. California

July 29, 2016

UNITED STATES OF AMERICA, Plaintiff,
v.
KEVIN BAIRES-REYES, Defendant.

          ORDER RE OBJECTIONS TO JURY INSTRUCTIONS DOCKET NO. 151, 155

          EDWARD M. CHEN UNITED STATES DISTRICT JUDGE

         I. INTRODUCTION

         On July 27, 2016, the Court issued its proposed jury instructions. Docket No. 149. Both parties subsequently filed objections to the jury instructions, raising two primary disputes. Docket No. 151 (Gov. Objs.); Docket No. 155 (Baires-Reyes Objs.).[1]

         II. DISCUSSION

         A. “Minimal Effect”

         The Court proposed the following jury instruction regarding the required effect on interstate commerce for a Hobbs Act robbery:

Only a minimal effect on interstate commerce is required to establish jurisdiction for these charges, and the effect need only be probable or potential, not actual.

         The Government has expressed a preference for use of “de minimis” as opposed to “minimal.” Gov. Objs. at 1. However, the Government also “appreciates that there is not a significant difference between the definitions of 'de minimis' and 'minimal, '” but makes two requests. Id. at 2. First, the Government requests that it be allowed to present the Black's Law Dictionary definition of “minimal” to the jury during its closing argument or rebuttal. This definition is unnecessary as it adds little to the definition of “minimal.” Instead, the Court will accept the Government's second request and give a modified jury instruction that includes the following example of what constitutes “minimal” effect on interstate commerce:

For example, if a successful robbery of money would prevent the use of those funds to purchase articles which travel through interstate commerce, that would be sufficient effect on interstate commerce.

See United States v. Cervantes, CR 12-0792 YGR, Docket No. 1395 at 61. This specific example has been used in jury instructions by other courts, including in cases upheld by the Second Circuit and Tenth Circuit. See United States v. Jamison, 299 F.3d 114, 117 (2d Cir. 2002) (upholding conviction in which the following jury instruction was issued: “if you find that a successful robbery would have prevented the use of that money in purchasing articles which travel through interstate commerce, you may find that this element [effect on interstate commerce] is satisfied”); United States v. Shinault, 147 F.3d 1266, 1277 (10th Cir. 1998) (finding no problem in providing the example “if a successful robbery of money would prevent the use of those funds to purchase which travel through interstate commerce, that would be a sufficient effect on interstate commerce” because it did not tie a legal result to the particular facts of the defendant's case”). This example will be included once, rather than in both jury instructions concerning the Hobbs Act robbery (i.e., with Jury Instruction No. [33] concerning conspiracy to commit robbery affecting interstate commerce, but not with Jury Instruction No. [34] concerning robbery affecting interstate commerce). Thus, the final paragraph of Jury instruction No. [33] will read as follows:

Only a minimal effect on interstate commerce is required to establish jurisdiction for these charges, and the effect need only be probable or potential, not actual. For example, if a successful robbery of money would prevent the use of those funds to purchase articles which travel through interstate commerce, that would be sufficient effect on interstate commerce.

         B. “Willful Ignorance”

         The Government objects to the Court's instruction requiring that a defendant have specific knowledge that a firearm would be brandished in order to be found guilty of aiding and abetting a brandishing charge. It proposes that the Court issue two new instructions regarding deliberate ignorance, to apply to: (1) aiding and abetting the use or carrying of a gun, and (2) aiding and abetting the brandishing of a gun. Gov. Objs. at 5-6. In support, it cites the Ninth Circuit's recent decision in United States v. Nosal. There, the Ninth Circuit applied a deliberate ignorance instruction to a charge of aiding and abetting a violation of the Computer Fraud and Abuse Act (CFAA).[2] 2016 U.S. App. LEXIS 12382, at *32-36 (9th Cir. July 5, 2016). It explained that “a statutory requirement that a criminal defendant acted 'knowingly' is 'not limited to positive knowledge, but includes the state of mind of one who does not possess positive knowledge only because he consciously avoided it.'” Id. at *34. The Ninth Circuit further found that it had previously “equated positive knowledge and deliberate ignorance in upholding conspiracy convictions, ” and that it saw “no reason to distinguish aiding and abetting liability.” Id. It also analyzed Rosemond, finding that Rosemond did not require a different result because Rosemond considered the advance knowledge requirement for accomplish liability, specifically “when a defendant must have advance knowledge, meaning 'knowledge at a time the accomplish can do something with it--most notably, opt to walk away.'” Id. at 35 (quoting Rosemond v. United States, 134 S.Ct. 1240, 1249-50 (2014)).

         The Court denies the Government's request. First, it is not entirely clear that the deliberate ignorance instruction, which the Nosal court connected with a “knowingly” standard, would also satisfy Rosemond's “advance knowledge” ...


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