F OR P UBLICATION



### UNIT E D ST AT E S CO URT O F APPE AL S FO R T H E NINT H CIRCUIT

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

I V A N S O T O

- B A R

R A Z A , Defendant-Appellant. N o. 15-10586

D.C. No. 4:11-cr-00150- DCB

- B PV-3

U N I T E D S T A T E S O F A M E R I C A , Plaintiff-Appellee
,

v

.

J E S U S L I O N E L S A

N C H E Z -M E Z A , AKA L eonel Mez a-Portillo, AKA L ionel Mez a-Portillo, AKA L eonel Portillo-Mez a, AKA L ionel PortilloMez a, AKA J esus L eonel Sanchez

Mez a, Defendant-Appellant. N o. 15-10589

D.C. No. 4:11-cr-00150- DCB

- B PV-5

OPI NI ON

A ppeal from the United States District Court for the District of Ariz o na David C. B ury , District J udg e, PresidingU N I T E D S T A T E S V

. S O T O -B A R R A Z A 2

Arg ued and Submitted October 17, 2017

Submission Vacated J anuary 24, 2018 Resubmitted J anuary

17, 2020 San F rancisco, California

F iled J anuary

17, 2020

B efore: Sandra S. I

kuta and Andrew D. Hurwitz , Circuit J udg es, and Michael J . McShane, * District J udg e.

Opinion by J udg e I k

uta

SUMMARY * *

Crim inal Law

The p anel a ffirmed two defendants’ convictions for firstdeg ree murder of a B order P atrol ag ent, conspiracy to interfere with and attempted interference with commerce b y robbery in violation o f the Hobbs Act, and assault on a U.S. B order Patrol Ag ent; and vacated the defendants’ convictions for carry ing a nd discharg ing a firearm in further a nce of a crime of violence.

* T h e Ho n o rab le Mich ael J. McSh an e, Un i ted States District J u d g e f or th e District o f

Oreg o n , sittin g b y

d esig n atio n

.

** T h is su m m ary co n stitu

t es n o p art o f th e o p in io n o f th e co u rt. It h as b een p rep ared b y

co u rt staf

f f o r th e co n v en i en ce o f

th e read er.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 3

The p anel held th a t t h e defendants w ere properly

ex tradited in accordance with the United States’s treaty with Mex ico.

T h e p anel held that the district court’s jury instruc t i o n s for the Hobbs Act offenses were not plainly erroneou s , a n d rejected the d efendants’ arg ument tha t t h e instructions constituted a constructive amendment of the indictment that allowed them to be convicted of ex tortion.

The panel held that the district court properly denied the defendants’ motion for judg ment of acquittal as to attempted robbery because the evidence w as sufficient to establish that the defendants took a substantial step toward commission o f the robbery

.

I n a concurrently filed memorandum disposition, t h e panel accepted the g overnment’s concession that conspiracy to commit Hobbs Act robbery is not a crime of violence and thus vacated the defendants’ convictions u n d e r 18 U .S.C. § 924(c).

COUNSEL

R amiro S. F lores (arg

u ed), L aw Office of Ramiro S. Fl o r e s P.L .L .C., Tucson, Ariz ona; A ndrea L y nn Matheson (arg

ued), Matheson L aw F irm P.C., Tucson, Ariz ona; for DefendantsAppellants.

David D. L e shner (arg

ued), Special A t t o r ney for the United States; J eff Sessions, Attorney General; Office of the United S t a t e s A t t o rney , San D ieg o, California; for Plaintiff

- A p p e l l e e

.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 4

OP INION

I KUTA, Circuit J udg e:

I va n S o to-B arraz a a

nd J esus L ionel Sanchez -Mez a appeal their convictions for the first deg ree murder of United States B order Patrol Ag ent B r ian Terry ; conspiracy to interfere with and a ttempted interferen c e with commerce by robbery in violation of t h e Ho bbs Act; assault on a U.S. B order Patrol Ag ent; and carry

ing and d ischarg ing a firearm in furtherance of a crime of violence. W e conclude that the d efendants were properl y e x tradited in a c cordance with the terms of the United States’s treaty with Mex ico. W e hold t h a t t he jury instructions for the H ob b s Act offenses were n ot plainly
erroneous, and reject defendants’ arg ument that the instructions constituted a con s t ructive amendment of the indictment. And we conclude that the evidence was sufficient
to e stablish that the defendants took a substantial step toward commission of the robbery offense. 1 F or the r easons below and in our concurrently -filed memorandu m disposition,

___ F ed. App’x

___ (9th C i r. 2020), we vacate defendants’ convictions on Count 9 and affirm in all other respects.

I

I n September 2010, the United States B orde r P a trol Tactical Unit (B ORTA C ) f o r the Tucson sector launched Operation Huckleberry

. The g oal of Operation Huckleberry

was to apprehend g ang s that prey ed on drug smug g lers in the Ariz ona Mesquite Seep.

1 W e also d en y d ef

en d an ts’ m o tio n to strik e th e g o v ern m en t’ s letter
p u rsu an t to Ru l e 2 8 (j ) o f

th e Fed eral Ru les o f

A p p ellate P ro ced u re.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 5

The Mesquite Seep is an area of roug h terrain, covered with cany ons, cliffs, and stee p hills, about 11 miles north o f the Mex ican border. At the time Operation H u c k leberry commenced, ex cept for two foot t rails, the a rea was accessible only by all-te rrain vehicles. The Mesquite Seep

was w ell known as part of a drug trafficking corridor. B ands of eig ht to twelve men would carry 4 5 o r m o re p ounds o f mariju a n a in h omemade backpacks as they traveled northbound from Mex ico into the S e e p , and then east to I nterstate 19. This smug g ling corridor was also well known
to “rip crews,” small g a

ng s of b an dits armed with assault weapons who stalked the smug g lers to steal their marijuana. Operation H uckleberry was aimed at stopping rip cr ew activity in the Seep.

I n D e ce mber 2010, six B ORTAC ag ents were deploy ed
to the Mesquite Seep for a 48-ho u r o p e ration. The team consisted of A g ents W illiam Castano (the t ea m leader), Gabriel F rag oz a, Timothy Keller, B rian Terry
, Christopher Conner, a nd Charles Veatch. The ag ents were deploy ed in an area commonly

used for smug g ling

. Near the end of the 48 hours, the Nog ales station alerted the team to potential t ra f

f ic moving east towards the team’s position. Three ag ents moved to a line above a wash. Using

a thermal mo n o cular, Ag ent Castano saw armed men approac h i n g

. At least two o f the men had weapons in the “ready p osition
, ” aimed forward and ready to fire. As they approached, A ge n t Castano y elled “Policia!” Some of the

men ran; others stopped, turned towards th e ag ents, a nd raised t heir weapons. I n r esponse, Ag ent F r ag oz a f ired his non-lethal shotg un, while announcing in Spanish: “g et d own, g et d own.” The ag ents saw multiple muz z le flashes from theU N I T E D S T A T E S V

. S O T O -B A R R A Z A 6

g uns in the wash, and returned fire. Ag ent Terry was hit b y a g unshot from the wash, and later died of the wound.

At the crime scene, the FBI recovered two A K-47-sty le

ass a u l t r ifles and five shell casing s, but could not determine whether either of the r ifles f ired the bullet that killed Ag ent Terry

. The F B I also found five backpacks containin g f o od, water, and ammunition. F ing erprint a nd DNA analy sis linked the rifles, b a ckpacks, and the backpacks’ contents to SotoB arraz a and Sanchez -Mez a.

A g r and jury indicted Soto-B arraz a, Sanchez

- M ez a, a nd the four other rip crew members on nine counts, charg ing the defendants with murder of Ag e nt Terry ; Hobbs A ct conspiracy to interfer e an d attempted interference with

commerce by robbery ; assault o n four B order Patrol o fficers; and carry ing and discharg ing a firearm in furtherance of a crime of violence. 2

Almost a y ear and a half later, Mex i c a n authorities arrested Sanchez -Mez a and transported him to Mex ico City
, where he was i n t e rviewed by an F B I ag ent. After being advised o f his Miranda r ig h t s , Sanchez -Mez a confessed to his involvement in the Mesquite Seep incident. He admitted that he entered Ariz ona from S onora, obtained A K-47-sty le
weapons from a hidden cache, a n d bega n searching for

2 T h is in d i ctm en t w as u ltim ately rep laced b y a Fif t h Su p ersed i ng In d ictm en t (th e op erativ e p l e ad in g h ere), bu t t h e co u n ts rem ain ed th e

sam e. T h e co u n ts at issu e h ere are: Co u n t 1
, f irst- d eg ree m

u rd er o f Un ited States B o rd er P atro l A g en t Brian T erry , 18 U.S.C § § 1 1 1 1
, 1 1 1 4 ; Co u n t 3
, co n sp iracy to in terf

ere w ith co m

m erce b y ro b b ery , 1 8 U.S.C. § 1 9 51 ; C o u n t 4
, attem

p ted in terf

eren ce w ith co m

m erce b y ro b bery
, 18 U.S.C. § 19 5 1 ; an d C o u n t 9
, carry in g an d d isch arg i n g a f irearm in f

u rth eran ce of a crim e o f

v io len ce, 1 8 U.S.C. § 9 2 4(c)(1 )(A )(i), (iii).U N I T E D S T A T E S V

. S O T O -B A R R A Z A 7

marijuana traffickers in order to rob them at g unpoint. W h en shown photog raphs of assault rifles r ecovered at the cri me scene, Sanchez -Mez a stated they were “similar ty pes to the
weapon he carried.” Sanchez -Mez a sig n e d a written declaration acknowledg ing his confession.

A y ear later, Mex ican authorities arrested Soto-B arraz a

. Two F B I ag ents interviewed Soto-B arraz a in Spanish in a Mex ican prison during the following month. Aft e r b eing advised of his Miranda rig hts, Soto-B arraz a also admitted his involvement in the events surr o u nding the shooting

. L ike Sanchez -Mez a, Soto-B arraz a admitted that he e ntered the United States on foot f

r o m Sonora into Ariz ona; obtained
weapons from a hidden c ache of firearms; and planned to rob marijuana smug g lers. He also admitted to carry ing a loaded assault rifle and stated that a photog raph o f one of the rifles found in the wash was similar to the weapon he c a rried that nig ht.

T h e g overnment requested ex tradition of the defendants and Mex ico g ranted t h e r eq uests. The orders from the Me x i c a n Department of F oreig n Affairs stated that: “the for m a l international ex tradition request made by the
g overnment of the United States of America, r e ga r ding the
person soug ht, adheres to the p ostulates con t a i n e d in the Ex tr a dition Treaty between the United Mex ican States a nd the Uni t e d S tates of America and that the ex tradition o f the aforementioned requested person is warranted; therefore the Department d etermines that there are sufficient elements to g rant, an d d oes g rant, the ex tradition” of both d e fendants. The orders stated that each defendant could be prosecuted in district c ourt for all the charg es listed in t h e indictment, a nd that the offenses stated i n each count met the statutoryU N I T E D S T A T E S V

. S O T O -B A R R A Z A 8

definitions c ontained in Mex ico’s F ederal Penal Code, in effect at the time of the events. 3

Soto-B arraz a moved to dis m i ss the indictment, arg uing that h is e x tradition was unlawful because Mex ico d id not have e quivalent offens e s

. H e later moved for a d eclaratory judg ment on the same g r o und. Sanchez -Mez a subsequently joined the motion, which the district court denied.

The seven-day trial beg an in September 2015. After the
g overnment rested, the defense moved for a directed verdict, contending that the rip crew’s preparations did not constitute

a “substantial step” n e c essary for an attempted robbery

. The court denied the motion.

The jury returned g uilty verdicts on all nine counts. The
court d enied the defense’s p ost- conviction motion for a j u d gment of acquittal and sentenced Soto-B arraz a a nd Sanchez -Mez a to life imprisonment for Count 1; concurrent 24 0

- month sentences for Counts 3
, 6, 7, a nd 8; a nd consecutive sentences of 120 months for Count 9. This appeal followed.

I I

W e first address defendants’ cla im that the district court erred in d eny ing t h e i r m o tion to dismiss the indictment a nd

3 T h e o rd ers estab lish ed t h at Co u n t 1 (f

irst d eg ree m

u rd er) m et th e statu to ry d ef

in i tio n in § § 3 0 2 an d 3 0 7 o f Mex ico ’ s Fed eral Pen al Co d e; Co u n t 3 (co n s p i r acy ) m et th e statu to ry def i n itio n in § 1 6 4 o f Mex ico ’ s Fed eral P en al Co d e; Co u n t 4 (attem p ted ro b b ery ) m et t he s t atu to ry d ef in i tio n i n § § 3 6 7 an d 3 7 1 o f Mex ico ’ s F ed eral P en al Co d e; an d Co u n ts 5
, 6
, 7
, an d 8 (assau lt ag ain st a f ed eral o f f icial) m et th e statu to ry def in itio n

o f § § 2 8 8 an d 2 9 3 o f

Mex ico ’ s Fed eral P en al Co d e.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 9

for declaratory relief o n the g round t h a t their e x tradition violated the Mex ico-United States Ex tradition Treaty

.

“The r ig h t to demand and obtain ex tradition of an accused criminal is created by treaty

. ” U n i t e d States v

. Van Ca u w e nberghe
, 827 F

. 2d 424, 4 28 (9th Cir. 1987) (quoting Q uinn v. Robinson
, 783 F .2d 776, 782 (9th Cir. 1986) ) (internal q

uotation marks omitted). The Treaty
, e f f e ctive J anuary 25, 1980, imposes two r equirements r elevant to defendants’ motions.

F irst, Article 17 of the Treaty incorporates the “rule o f specialty ,” w hich precludes the requesting country from
p r o s ec uting a defendant for any offense other than that f o r which the surrendering country consented to ex tradite, unless surrendering country approves. See United States v

. I ribe
, 564 F .3d 1155, 1158 (9th Cir. 2009). Article 17 states: “A
person ex tradited under the present T r e a t y shall not be d e t a i ned, tried or p unished in the territory of the requesting Party for an o ffense other than that for which ex tradition has been g ranted nor be ex tradited by that Party to a third State,” absent certain ex ceptions not relevant here.

Second, A rticle 2 incorporates the principle o f “d u al criminality ,” tha t “an a ccused person can be ex tradited only if the conduct complained of is c o n sidered criminal by the jurisprudence or under the laws o f both the requesting a nd requested nations.” Quinn
, 78 3 F. 2d at 783. Article 2(1) provides that “[ e ] x traditi o n shall take place, subject to this Treaty
, for wilful acts which fall within a ny of the clauses o f the A ppendix a

nd a r e punishable in accordance with the laws of both Contracting Parties by deprivation of liber t y t he

ma x imum of w hich shall not be less than o ne y ear.” The Appendi x to the Treaty lists 31 categ ories of offenses,U N I T E D S T A T E S V

. S O T O -B A R R A Z A 10

including murder and robbery

. Article 2(3) provides that “[ e] x tradition shall also be g r ant e d f or wilful acts which, althoug h not b eing included in the Appendix
, are punishable, in accordance with the federal laws of both Contracting Parties, by a deprivatio n o f liberty the max imum of which shall not be less than one y ear.”

W e “defer to a surrend e r i n g sovereig n’s reasonable determination that the offense in que s t ion is ex traditable.” United States v. Saccoccia
, 58 F .3d 754, 766 (1st Cir. 1 995);

see also Van Cauwenberghe
, 827 F .2d at 429 (courts should

a c cord “ proper deference” to “ a surrendering country ’s decision a s to whether a particular offense c o m e s within a treaty ’s ex tradition provision”). B ut w e review de novo the “district court’s dec i sion that an offense is an ex traditable crime.” Van Cauwenberghe
, 827 F. 2d at 428. W e likewise review de n ovo the district court’s “[ i] nterpret a t ion of an

ex tradition treaty , including w hether the doc t r ines o f d ual criminality and specialty are satisfied.” U n i ted States v

. Anderson , 472 F .3d 662, 666 (9th Cir. 2006).

I n their motions to dismiss and for declaratory relief, Soto-B arraz a and Sanchez

- Mez a arg ued that their e x tradition for felony murder, assault, and co n spiracy ( or attempt) to interfere with commerce by robbery violated the T r eaty because Mex ico d oes not criminaliz e these ex act offenses a nd they are n ot listed in the T reaty

. Rely ing on ex pert testimony of a law professor, the defendants arg u e that t h e Mex ican
statutes listed in the Treaty criminaliz e only simple h omicide, and felony murder is not “punishable in accordance with the laws” of Mex ico. They also arg ue that Mex ican law does not punish interference with c o m merce by robbery of an illeg al

s u b s t a nce, a

nd does n ot r ecog niz e the c rime of assault on a federal official unless the official was phy sically i n jured o rU N I T E D S T A T E S V

. S O T O -B A R R A Z A 11

feared for his life. Fi nally
, defendants arg ue that the T r eaty precludes the g overnment from imposing a true life sentence for the i r o ffenses, because life sentences in Mex ico last no more than 70 y ears.

T h ei r arg uments fail. I n its ex tradition orders, Mex ico listed the United States federal charg es at issue, and stated that ex tradition f

or these charg es conform e d t o the Treaty ’s
terms. The orders also identif i e d a nalog ous statutory provisions under Mex ico’s F ederal 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 c haracter’ of the acts criminaliz ed by the l a w s o f each country ” must be the same, and the laws “substantial ly analog ous.” Manta v. Chertoff
, 518 F .3d 1134, 1141 (9th Cir. 2008) (quoting Oen Y

in-Choy v. R o binson
, 858 F .2d 1400, 1404 (9th Cir. 1988)). B ecause Mex ico elected t o e x tradite the defendants on all charg es listed in the indictment, the Treaty ’ s principles of specialty and d u a l criminality a re satisfied. See Iribe
, 564 F

. 3 d at 116 0 ; Van Cauwenberghe
, 827 F .2d at 428–29.

I I I

W e nex t address d efendants’ claim that the district court erred in instructing the jury on conspiracy to interfere with and attempted interference with commerce by robbery
, in violation o f 1 8 U.S.C. § 1951 (t h e H obbs Act). B ecause defendants d id not o bject to these instructions at trial, we review for plain error. See U nited States v. Rez a -Ramos
, 816 F .3d 1110, 1123 (9th Cir. 2016).

W e first turn to the district c ourt’s instruction for Count 4, attempted interference w ith commerce by robbery

. B othU N I T E D S T A T E S V

. S O T O -B A R R A Z A 12

parties requested that the district court g ive Ninth Circuit M o d e l I nstruction 8.142, entitled “Hobbs Act E x tortion o r Attempted E x tortion by

F orce.” 4 The district court g ave the proposed instruction, which included the following element: “F irst, the Defendants in t e n d e d to induce drug smug g lers to part with p roperty by the w rong ful use of actual or threatened force, violence, o r fear.” 5 The Hobbs Act defines robbery in

4 A t th e tim e, th e Nin th Circu i t m o d el in stru ctio n s d id n o t h av e an in stru ctio n f

o r Ho b b s A ct ro b b ery

. In Decem b er 2 0 1 6
, th e c o m

m ittee ad d ed a n ew in stru ctio n f or Ho b b s A ct ro b bery

. Mo d el Crim

. J u ry In str. 9 th Cir. 8 .1 4 3 A (2 0 1 0 ed .), h ttp ://w w w 3 .ce9 .u sco u rts. g o v /j u ry

i n s t r u c t i o n s / s i t e s / d e fa u l t / fi l e s / W P D / C r i m in al_ In stru ctio n s_ 2 0 1 7

_ 9 .p df (last u p d ated S ep

. 2 0 1 7 ) [h erein af t er 2 0 1 7 In stru ctio n s]. T h e co m m ittee

m o st recen tl y m o d if

ied th e in stru ctio n s f

o r H o b b s A ct ro b b ery in A p ril 2 0 1 9

. S

ee Mo d el Crim

. J u ry In str. 9 th Cir. 8 .1 4 3 A (2 0 1 0 ed .), h ttp ://w w w 3.ce9 .u sco u r t s

. g o v /

j ur y -i ns t ru ctio n s/sites/d ef

au lt/f iles/W P D / Crim in al_ In stru ctio n s_ 2 0 1 9_ 12

_ 0 .p d f (last u p dated Dec. 2 01 9 ); Man u al

o f Mo d el Crim in al Ju ry In stru ctio n s, h ttp : //w w w 3 .ce9 .u sco u rts.g o v /j u ry

in stru ctio n s/m o d el- crim in al (statin g th at In stru ctio n s 8 .1 4 3A w as las t

m o d if ied in A p ril 2 0 1 9).

5 T h e f u ll in stru ctio n

read :

T h e d ef en d an t s a r e ch arg ed in C o u n t 4 o f th e in d ictm en t w ith attem

p ted in terf

eren ce w ith co m

m erce b y ro b bery i n v i o l atio n o f Sectio n 1 9 5 1 o f T itle 1 8 of th e Un i ted States Co d e. In o rd er f o r th e d ef en d an ts to b e f o u n d g u ilty o f th at ch arg e, th e g ov ern m en t m u st p ro v e each o f th e f

o llo w in g e l em en ts b ey o n d a

reaso n ab le d o u

bt:

First, th e d ef

en d an t in ten d ed to in d u ce d ru g

sm u g g lers to p art w ith pro p erty b y th e w ro n g f u l u se of
actu al o r th reaten ed

f o rce, v io len ce, o r f

ear;

Seco n d
, th e d ef

en d an ts acted w ith th e in ten t to

o b tain p ro p erty ;U N I T E D S T A T E S V

. S O T O -B A R R A Z A 13

a slig htly different manner a s “the unlawful taking o r obtaining of personal property from the pers o n o r in the
presenc e o f a n o ther, ag ainst his will, by means of actual o r threatened force, or violence, or fear of injury , immediate or future, to his person or property , or property in his custody o r possession.” 18 U.S.C. § 1951(b)(1). T h e instruction differs from the statutory definition, in that it omits the lang uag e that the d e fendant took property from the victim “ag ainst his will” by means of “fear of injury ,” not just “fear.”

Soto-B arraz a an d S anchez -Mez a now arg ue that the

co u r t ’s instruction is closer to the definition of “ex tortion” under the Hobbs Act, w h i c h is “the obtaining of property from a nother, with his consent, induced by w r ong ful use o f actual or threatened force, violence, or fear, or u nder color o f official rig ht.” 18 U.S.C. § 1951(b)(2). Accordin g t o t h e d efendants, the court’s failure to provide instructions t h at included the phrases “ag ainst h is will” and “fear of i n j u r y ” resulted in a c onstructive amendment of th e indictment that allowed them to be convicted of e x tortion, which is a per se reversible error.

T h ird , co m

m erce f ro m o n e state to an o th er w ou ld h av e b een af

f ected in so m e w ay ; an d

Fo u rth
, th e d ef

en d an ts d id so m eth in g th at w as a

su bstan tial step to w ard co m m ittin g th e crim e.

Mere p rep aratio n is n ot a su bstan tial step to w a r d

co m m ittin g th e crim e. T o co n stitu te a su b stan tial step , a d ef en d a n t’ s act o r actio n s m u s t d em o n strate th at th e crim e w ill tak e p lace u n less i n terru p ted b y in d ep en d en t circu m s tan ces.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 14

W e disag ree. A c o nstructive amendment “occu rs w h en the c harg ing terms of the indictment are altered, either literally or in effec t , b y t he prosecutor or a court after the
g rand jury has last passed upon them,” United States v. W ard
, 7 47 F .3d 1184, 1189 (9th Cir. 2014) (quoting United S t a t e s

v. Von Stoll
, 726 F .2d 5 8 4
, 5 8 6 (9th Cir. 1984)), such a s “where (1) there is a c o m p lex of facts [ presented at trial] distinctly different f

rom t h o s e set forth in the charg ing instrument, or (2) the crime charg e d [ in the indictment] was substantially a ltered at trial, so that it was impossible to know whether the g ra n d j u ry would have indicted for the crime actually p r oved.” United S tates v

. A damson
, 2 91 F

. 3d 606, 615 (9th Cir. 2002) (alterations in orig inal) (internal quotat i o n marks omitted). Neither of those e rrors is present here. The
g overnment indicted the def e n dants for Hobbs A ct robbery and adduced e vidence to pro ve that offense, offering no evidence that the defendants eng ag ed in ex tortion. W e reject constructive amendment claims when the go vernment does not introduce evidence at trial “that would enable the jury to convict the defendant for conduct with which h e was not charg ed.” W

ard
, 747 F .3d at 1191.

The defendants’ claims are better interpreted as a challeng e to the jury instructions. Compare United States v. M a ssey , 419 F .3d 1008, 1010 (9th Cir. 2005) ( reviewing a claim that the jury instruction misstated material elements o f

a statute), with W

ar d
, 747 F .3d at 1191–92 (reviewing whether defendant was convicted of a crime not c h ar ge d in the indictment). Viewing the defendants’ claim in this lig ht,

we conclu de that the slig ht differences between the court’s instructions to the jury a

n d the statutory definition of robbery do not constitute plai n e rror. See Reza-Ramos
, 816 F .3d
at 1 123. The omission of the p hrases “ a ga i n s t his w ill” a nd “fear of injury ” did not make the instruction “misleading o rU N I T E D S T A T E S V

. S O T O -B A R R A Z A 15

inadequate to g uide the jury ’s deliberation.” See United States v. H

ofus
, 598 F .3d 1171, 1174 (9th Cir. 2010) (quoting United States v. Frega
, 179 F .3d 7 93, 806 n.16 ( 9 t h C ir. 1999)); see also United S tat es v

. T avakkoly
, 2 3 8 F .3d 1062, 1066 (9th Cir. 2001) (“I

mproper jury instructions will rarely justify a f

inding of pl a i n error.”) (quoting United States v

. Marin-Cuevas
, 147 F. 3 d 889, 893 (9th Cir. 1998)). Our conclusion that any error was not “plain” is further supported by the fa ct t hat the seven judg es who comprise the Ninth Circuit J ury I nstructions C ommittee adopted identical lang uag e to that used by the district court her e for model instructions on Hobbs Act attempted robbery : “the defendant [ attempted to induce] [ induced] [ n ame of victim] to part with
p roperty by the wrong f

ul use of a ctual or threatened forc e, violence, or f

ear.” 2 017 I nstructions 8.14 2 A
, 8

. 143A; see also Hofus
, 598 F .3d at 1 17 4–75 (no error when district court’s instruction “mirrored” the model instruction). 6

More o v e r , even if the omission of the two phrases (“ag a inst his will” and “fear of injury ”) qualified as an error that was plain, these defendants’ substantial rig h ts were not affected. B ecause the g o vernment p resented overwhelming evidence that the rip cr e w members intended to take marijuana from the smug g lers by force and ag a inst their will, i n cluding Soto-B arraz a’s and Sanchez -Mez a’s confessions, there is no s i gn ificant possibility that the jury mig ht have acquitt e d the defendants if the instruction had included the omitted la n gu a g e. See United States v

. Brooks
, 5 08 F .3d 1205, 1208 (9th Cir. 2007) (holding that a jury instruction is not plainly

erroneous if there is not “a sig nificant possibility

6 W h ile th e co m

m ittee m o re recen tly rev is e d I n stru ctio n 8 .1 4 3 A
, su p ra n ote 4
, th e d istrict co u rt’ s in stru ctio n w as n ot p lain erro r b ecau se th e

co m m ittee p rev i o u sly

u sed th e sam e lan g u ag e as th e co u rt.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 16

the jury mig ht h ave acquitted if it had considered the matter”) (quoting United S

tates v. Steward
, 16 F

. 3d 317, 320 (9th Cir. 1994)). 7

I V

F inally
, we consider Soto-B arraz a a nd Sanchez -Mez a’s challeng e to the district c ourt’s denial o f their motion for judg ment of acquittal as to attempted r obbery

. W e review de

novo wheth e r sufficient evidence supports a g uilty verdict. United S tates v. Rosales-Aguilar
, 8 18 F

. 3d 965, 970 (9th Cir. 2016). W e “ assess the evidence in the lig ht most favorable to the p r o secution, determining whether any rational trier of fact could have found the essential elements of the crime bey ond

a reasonable doubt.” Id. a t 971 (quoting U n i t e d S tates v

. Stewart , 420 F .3d 1007, 1014–15 (9th Cir. 2005)).

“[ A] n a ttempt conviction requires ev i d e n ce that a defendant i n t e nded to violate the statute and took a substantial step toward completing the violation.” United States v

. Mincoff

, 574 F

. 3d 1186, 1 195 (9th Cir. 2 009) (alterations in orig inal) (quoting United States v. Meek
, 366 F

. 3d 7 05, 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 a c k nowledg ed that “[ t] he

7 Fo r th e sam e reaso n , w e rej ect d ef en d an ts’ arg u m en t th at th e d istrict

co u rt p lain ly

erred in o m ittin g th e p h

rases “ ag ain st h is w ill” an d “ f ear o f in j u ry ” f ro m its in stru ctio n o n

co n sp iracy

to in terf ere w ith co m m erce b y

ro b b ery , C o u n t 3, w

h ich stated th at “ th ere w as an ag reem en t b etw een tw o

o r m o re p erso n s to in d u ce d ru g sm u g g lers to part w ith p ro perty b y th e

w ro n g f u l u se o f actu al o r th reaten ed f o rce, v io len c e , o r fe a r.” San ch ezMeza an d So to

- Barraza rep eated ly co n ced ed th eir g u ilt to co n sp i r a c y in th eir o p en in g statem en ts an d clo sin g arg u m en ts. S ee Bro o ks
, 5 08 F.3 d at 1 2 0 8

.U N I T E D S T A T E S V

. S O T O -B A R R A Z A 17

difference between making preparations and t a k i ng a substantial step toward the commission of a crime is one o f deg ree,” W

alters v. M

a a ss , 45 F .3d 1355, 1359 (9th Cir. 1995). “The line between mere preparation a nd a substantial step is inherently fact specific; conduct that would appear to be mere p reparation in one c a se mig ht qualify as a substantial step in another.” United States v. Villegas
, 655 F .3d 662, 669 (7th Cir. 2011). W hile a cknowledg ing that it is difficult to id e n tify “the point at which the defendants’ activities ripen into an attempt,” United States v. Harper
, 33 F .3d 1143, 1148 (9th Cir. 1994), w e have g enerally characteriz e d that point a s when a defendant’s a ctions demonstrate “that the crime will take place unless interrupted by independent circumstances.” Mincoff
, 574 F .3d at 1 195 (quoting United States v. G oetzke
, 494 F .3d 1231, 1237 (9th Cir. 2007)).

I n addressing this fact-specific inquiry
, c o urts g enerally focus on factors such as whether defendants p lanned to commit an offense, see United States v. Moore
, 921 F .2d 207, 209 (9th Cir. 1990), a n d whether defendants equipped themselves with the items n eeded to commit the offense, see Un i t e d States v. Muratovic
, 719 F .3d 809, 816 ( 7th Cir. 2013); U nited States v. Snell
, 627 F. 2 d 186, 188 (9th Cir. 1980) (per curiam). The key question is whether “the crime will tak e place unless interrupted by independent circumstances.” Mincoff

, 574 F .3d a t 1195 (quoting G oetzke
, 494 F .3d at 1237).

I n addition to these g eneral f a c t o rs, courts also focus on the ty pe of crime at issue. I n bank robbery cases, courts frequently consider w h ether the defendant approached the
t a r geted building to commit the offense. See Moor e , 921 F .2d at 209 (holding that a defen d a nt took a substantial step when he walked towards a bank wearing a ski mask,U N I T E D S T A T E S V

. S O T O -B A R R A Z A 18

holding g loves, and c arry ing a concealed loaded g un, combined with an informant’s details a b out the planned

o f f e nse); see a lso Rumfelt v

. United States
, 445 F .2d 1 3 4
, 135–37 (7th Cir. 1971) (defendant took a substantial step b y

s tanding in front of a bank while wearing a ski mask a n d

u sing a rifle to intimidate a passerby into try ing to op e n t h e d oor to the b a

nk) (cited with approval in United St a t e s v. Buffington
, 8 15 F .2d 1292, 1 3 0 2 ( 9th Cir. 1987)). I f the defendants did not move toward the targ eted bank, but merely conducted surveillance in its vicinity
, defendan t s m ay not have taken a substantial step

. See Buffington
, 815 F .2d at 1303; see a lso Harper
, 33 F .3d at 1 147 (holding there was no

s ubstantial step where defendants “never made a m o v e toward the victims or the B ank to a cc o mplish the criminal portion o f their intended mission”); United States v

. Still
, 850 F

. 2 d 607, 610 (9th Cir. 1 9 8 8 ) (holding there w a s no substantial step where the facts “do not establish either actual
movement toward the bank or a ctions that are analy tically similar to such movement”).

I n cases involving attempted robberies of armored trucks,
courts have similarly focused o n whether the defendants laid in wait where the truck was ex pected. S ee Muratovic
, 719 F .3d at 816 (holding that the defendant took a substantial step towards robbery

of an armored car where the defendant had g athered every

thing necessary to rob the armored car, waited for the car in a parking lot with the i n t e n t i o n o f fo l l o w i n g the car to a hig hway rest stop and robbing it, a nd failed to c a r

ry throug h 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, 3 3 ( 1 s t Cir. 1 993) (holding that the defendant took a substantial step toward robbery of a

n a r m o r e d car when he g athered the
necessary weapons a

n d p lanned the robbery ; drove to aU N I T E D S T A T E S V

. S O T O -B A R R A Z A 19

parking lot to lay i n w ai t fo r the car; but aborted the p lan at the last minute when the armored car left the parking lot just as the defendant arrived).

And in cases involving planned o f f enses ag ainst individual victims, c o u rts have focused on whether def e n d ants had beg u n traveling to the location w here the victim w as ex pected to b e f o u nd. See United States v

. W ashington
, 653 F

. 3d 1251, 1 266 (10th Cir. 2011) (holding that a defendant took a substantial step towards a t tempted murder-for-hire when he e q uipped h imself with a pair o f latex
g loves to avoid f

ing er p rints and traveled towards “a city in which he had no apparent b usines s b e y o nd the p lanned hit” with “the person who had f a c i litated the murder-for-hire
ag reement.”); U

nited States v. Y

o ung , 613 F .3d 735, 743 (8th Cir. 2010) (holding that defen d ant took substantial step towards e nticement of a minor when h e t r a v e l ed to a motel where he ex pected to meet the victim) ; United States v

. Khalil
, 279 F

. 3d 358, 3 68–69 ( 6th Cir. 2002) (holding that a defendant took a substantial step toward c ommitting a violent crime by participating with motorcy cle club members w ho “org a niz ed themselves, armed themselves, and tra v e l e d in
g roups to locations where they ex pected to find their intended victims,” an d aborted their efforts only “due to police interference”); see also Model Pena l Code § 5.01(2)(a) (“ly ing in w a it, searching for or following the contemplated victim of the crime” can constitute a substantial step).

I n this case, taking the evidence in the lig h t most favorable to the g o vernment, a reasonable jury could conclude that Sot o -B arraz a and Sanchez -Mez a took a substantial step toward r obbery of marijuana smug g lers b ecause they equipped themselves w ith assault-sty le weapons (as well as packing food, w ater and ammunition) a nd traveledU N I T E D S T A T E S V

. S O T O -B A R R A Z A 20

to an area where they ex pected to find the intended victims. See Khalil
, 279 F

. 3d at 368. Given that the defendants

a d mitted that they entered the Mesquite Seep to search f o r marijuana smug g lers and to rob them at g unpoint, and g iven their preparations for doing so, a r easonable jury c o uld conclude that defendants w o uld h ave carried out the crime

once the opportunity presented itself and failed to do so only because they

were interrupted by

the B ORTAC ag ents.

The defendants arg u e that there was insufficient evidence
to establish they had taken a s u b s tantial step because there

w a s no evidence that marijuana smug g lers were actual l y present in their immediate vicinity o r that a robbery was imminent. I n making this arg ument, defendants rely primarily on cases considering whether defendants had taken

a substantial step toward r o bbing a store or b a nk. See Hernandez-Cruz
, 651 F

. 3 d at 1102–03; Harp e r , 33 F .3d
at 1147; Still
, 850 F .2d at 610; Buffington
, 815 F .2d at 1303. B ut here the defendants were targ eting individual victims, not

a building

. I n these circumstances, co urts place g reater weig ht on other factors, such as whe t h er the defendants a re ly ing in wait for the intended victim, see Muratovic
, 719 F .3d
at 816, or h ave beg un traveling to the loc a t i o n w h ere the victims may be found, see Khalil , 279 F .3d at 368. B ecause the central inqui r y is w hether the evidence is sufficient to demonstrate that the defendants will carry throug h with the

o f f e nse unless interrupted, “there is no requirement that t h e actions constituting the attempt have a particular g eog raphic
p rox imity to the object of the substantive offense.” Uni t e d States v. Turner
, 5 0 1 F .3d 59, 69 (1st Cir. 2007); see also Villegas
, 655 F .3d at 6 69 (d e f e n dant took substantial step towards attempted robbery of armored car even thoug h he

was a mile away from the l ocation of the planned robbery ). Nor need a criminal a ct be imminent. See Mincoff
, 574 F .3dU N I T E D S T A T E S V

. S O T O -B A R R A Z A 21

at 1190–91, 1195 (holding that there wa s a s ubstantial step

even thoug h the attempted drug transaction took place ov e r the phone across a ten-day period); see also U

nited States v

. Sanchez
, 615 F .3d 836, 84 4 ( 7th Cir. 2010) (finding a substantial step made e ven thoug h c rime was at least a week
away ).

B e cause a reasonable jury could h a v e c oncluded that Soto-B arraz a and Sanchez

- Mez a did all they could to p repare to rob marijuana smug g lers they would e ncounter and would have followed throug h w i t h the crime had the B ORTAC
ag ents n ot intervened, the district court correctly denied defendants’ motion f

o r judg ment o f acquittal. See M incoff
, 574 F .3d at 1195. 8

AF F IRMED IN P ART AND VACATED IN P ART

8 A s d i scu ssed in th e co n cu rren tly f i led m em o ran du m d i sp o sitio n ,

_ _ _ Fed . A p p ’ x

_

__ (9 th Cir. 2 02 0), w e accep t th e g o v ern m en t’ s co n cessio n th at co n sp iracy t o c o m

m it Ho b b s A ct ro b b ery is n o t a crim e o f v io len ce

an d th u s v acate d ef

en d an ts’ co n v ictio n s o n

Co u n t 9

.