Petition for Writ of Certiorari — Carmelita Barela, Petitioner v. United States

Supreme Court briefJun 23, 2023

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No. 22

IN THE SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 2022

CARMELITA BARELA,

Petitioner,

UNITED STATES OF AMERICA,

1?espondent.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Ninth Circuit

APPENDIX

JODI LINKER

Federal Public Defender

Northern District of California

JOHN PAUL REICHMUTH*

ROBIN PACKEL

Assistant Federal Public Defenders

1301 Clay Street, Suite 1350N

Oakland, California 94612

(510) 637-3500

John_Reichmuth@fd.org

Counsel ofRecord for Petitioner

Appendix Table of Contents

Ninth Circuit memorandum affirming the conviction

Excerpt of District Court denial of Rule 29 motion

Excerpt of jury instructions

Excerpts of District Court rulings on jury instructions

Excerpt of proposed, disputed jury instructions

Ninth Circuit Order denying petition for rehearing en bane

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FILED

NOT FOR PUBLICATION

DEC 22 2022

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

MOLLY C. DVVYER, CLERK

U.S. COURT OF APPEALS

No. 21-10231

D.C. Nos.

3 :20-cr-00254-CRB-1

CAR1VIELITA BARELA,

MEMORANDUM*

Defendant-Appellant.

Appeal from the United States District Court

for the Northern District of California

Charles R. Breyer, District Judge, Presiding

Argued and Submitted October 18, 2022

San Francisco, California

Before: CLIFTON, BEA, and NGUYEN, Circuit Judges.

Carmelita Barela timely appeals her jury conviction on one count of Hobbs

Act robbery in violation of 18 U.S.C. § 1951. We have jurisdiction under 28

U.S.C. § 1291, and we affirm.

Barela argues that the district court erred in instructing the jury that

"[tjhreatening to infect another person with a disease can amount to threatened

This disposition is not appropriate for publication and is not precedent

except as provided by Ninth Circuit Rule 36-3.

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force, violence or fear of injury, immediate or future, to that person" because the

instruction was unsupported by law, improperly emphasized the government's

theory of the case, and failed to require findings that the threat was made

knowingly or intentionally and was a threat of violent force. We review "de novo

whether jury instructions omit or misstate elements of a statutory crime or

adequately cover a defendant's proffered defense." United States v. Kaplan, 836

F.3d 1199, 1214 (9th Cir. 2016) (cleaned up). We review the wording of jury

instructions for abuse of discretion: Id.

Because the parties are familiar with the facts, we need not recount them in

detail here: We conclude that the district court did not err in its "threatened force"

instruction. Barela's threat to expose Walgreens employees to COVID-19 could

have easily put the store clerks in "fear of injury." See, e.g., Black's Law

Dictionary at 939 (11th ed. 2019) (defining injury as "[a]ny harm or damage" and

defining bodily harm as "[p]hysical pain, illness, or impairment of the body"

(emphasis added)); see also Johnson v. United States, 559 U.S. 133, 138 (2010)

(attributing the "ordinary meaning" to undefined words in the statute, meaning

reliance on dictionary definitions). By threatening to infect someone with an

illness known to cause bOdily harm, as Barela did, one could certainly put another

in "fear of injury" under the Hobbs Act. The district court's jury instruction also

did not improperly adopt the government's theory tor improperly deemphasize the

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defense's theory. The instruction left the jury to determine whether Barela

threatened anyone with a disease and, if she did, whether such a threat amounted to

threatened force, violence, or fear of injury, immediate or future.

The district court also properly gave the Ninth Circuit Model Jury

Instruction on Hobbs Act robbery and did not err by rejecting Barela's request to

insert the word "intentional" in the instruction.' The jury necessarily found that

Barela threatened to expose the Walgreens employees to COVID-19, which fulfills

the required intent for Hobbs Act robbery, as threatening someone denotes

intentionality. See Ninth Circuit Model Jury Instruction 9.8 cmt. (stating that

Hobbs Act robbery has "criminal intent—acting 'knowingly or willingly'—[a]s an

implied and necessary element that the government must prove for a Hobbs Act

violation") (citing United States v. Dominguez, 954 F.3d 1251, 1261 (9th Cir.

2020)); cf. United States v. Henry, 984 F.3d 1343, 1358 (9th Cir. 2021) ("[T]he

word 'assault' used in [defendant]'s indictment denotes intentionality.").

Additionally, the district court's jury instruction for Hobbs Act robbery, which

Barela requested the addition of the italicized Word in the Ninth Circuit Model

Jury. Instruction below:

"Robbery" means the unlawful taking or obtaining of personal property from

the person or in the presence of another, against their will, by intentional

means of actual or threatened force, or violence or fear of injury, immediate

or future, to his person or property, or to property in his custody or

possession, or to the person or property of a relative or member of his family

or of anyone in his company at the time of the taking or obtaining.

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largely conformed to the Ninth Circuit Model Jury Instruction, adequately

conveyed the force required for a conviction and did not need the addition of a

"violent force" instruction as argued by Barela for the first time on appeal. See

United States v. Still, 857 F.2d 671, 672 (9th Cir. 1988) (holding no plain error

where "the court's instructions conformed almost entirely with federal model jury

instructions").

Barela's challetiges to the sufficiency of the evidence as to the force

and affects-commerce elements of Hobbs Act robbery lack merit. Viewing the

evidence in the light most favorable to the government, see Jackson v. Virginia,

443 U.S. 307, 319 (1979), we hold that there was sufficient evidence to support the

verdict. The jury heard testimony from the Walgreens store manager that she saw

Barela cough and heard her say "I have COVID" as she loaded her purse with store

merchandise and again as she walked out of the store, and the jury saw video

footage of Barela walking out while the store manager stepped back to keep away

from her and took a photograph that depicts a smiling Barela walking out with her

bags full. A rational trier of fact could have found from this evidence that Barela's

conduct amounted to threats to infect the employees with COVID-19, made with

intent to keep them from interfering with her theft of merchandise. Regarding the

affects-commerce element, Barela stipulated to "the element of the offense which

requires that it have an impact on interstate commerce," and the jury was so

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advised. Barela's stipulation provided sufficient evidence as to that element. See

Old Chief V. United States, 519 U.S. 172, 186 (1997); United States v. MerinoBalderrama, 146 F.3d 758, 762 (9th Cir. 1998).

We review de novo whether the admission of evidence violated the

Confrontation Clause, and for abuse of discretion a district court's decision to

admit evidence under the Federal Rules of Evidence. United States v. Johnson,

875 F.3d 1265, 1278 (9th Cir. 2017). The district court's admission of a portion of

a 911 call by a non-testifying witness did not violate the Confrontation Clause and

was not an abuse of discretion under the Federal Rules of Evidence. The primary

purpose of the portion of the 911 call was for facilitating police assistance, such

that the statements were made for primarily nontestimonial purposes. See United

States V. Fryberg, 854 F.3d 1126, 1134--35 (9th Cir. 2017). And the portion of the

911 call did not violate the rule against hearsay because the witness was reporting

present sense impressions. See Fed. R. Evid. 803(1). In any event, even if part of

the call was erroneously admitted, any error was harmless, as there was more than

enough evidence for the jury to convict Barela without the non-testifying witness's

statements from the 911 call. See United States v. Shayota, 934 F.3d 1049, 1052

(9th Cir. 2019).

AFFIRMED.

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PROCEEDINGS

Hobbs Act robbery, and I could just go through the elements.

THE COURT: This is the opportunity.

MR. FINE: Thank you.

So first, the first element is that the Defendant

knowingly obtained property or money from or in the presence of

the Walgreens Pharmacy. I'm not even really sure that's

disputed. She took the property. She took the --

THE COURT: That's not disputed.

MR. FINE: Sure.

THE COURT: It's not disputed that there isn't

sufficient evidence from which one could conclude that that's

what occurred. Okay.

MR. FINE: Fair enough.

So the -second element is that the Defendant did so by

means of robbery. And we have our definition of "robbery" in

the Ninth Circuit Model Jury Instructions, which means taking

personal property by intentional means of actual or threatened

force or violence or fear of injury, immediate or future.

THE COURT: And that's what's in dispute, the second

part of it?

MR. ARCHER: Absolutely.

MR. FINE: Correct, Your Honor.

So I think a rational jury could find that when the

. 24

Defendant coughed and said she had COVID, there was an implied

threat. The threat was that if you try and interfere with this

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robbery, you might get COVID. And that certainly could cause a

fear of injury to a Walgreens employee, the injury being

infection with COVID.

And it doesn't have to be an immediate injury. It says

"immediate or future." Clearly, based on what we know about

COVID, it can take a little bit to manifest.

And so I think certainly a rational jury could find,

looking at this evidence, that when the Defendant coughed and

said she had COVID, that there was an implied threat.

MR. ARCHER: Your Honor, I mean, this is stretching

so far beyond the bounds of what robbery is. To say that there

is an implied threat when there is no direct interaction

between the -- the purported victim here and my client, that

there is an allegation that she said "COVID" at some point and

coughed. Again, there is no threat -- there's no --

THE COURT: Wait. You say that, but I'm trying to

figure out, really, what you're saying.

You're saying -- I think what you are saying is there is

insufficient evidence in the record from which a reasonable

juror could conclude that she issued a threat. Isn't that the

word? Isn't that what you're saying?

MR. ARCHER: That is correct.

THE COURT: Okay. So let's take a different case.

Let's take the case of a person going into a pharmacy and

saying: I have a gun. I have a gun. Says it in an audible

Debra L. 'Pas, CSX Rox V4W2 CRR.,

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way.

So, I mean, there is -- its not a mumble under her

breath, but says so that a reasonable -- so that somebody could

hear her saying: I have a gun. And then walks out with the

property.

Is that a Hobbs Act Violation? I know you Would say yes,

but --

MR. FINE: Well, I think the Defense's perspective --

THE COURT: I'm asking the Government. What?

MR. FINE: It might depend on What the store's

policies are, Judge.

THE COURT: I don't think so.

MR. ARCHER: I mean --

THE COURT: Just take that hypothetical. If a

Defendant walks intb a store and says: I have a gun. And then

in the course of which. -- during the course of which she is

taking property and putting it in her purse, is that a Hobbs

Act, •a potential

conclude that she is obtaining this property by fear of

violence in that she has said she has a gUn..?

can a jury -conclude, a reasonable jury

She didn't Say she would use the gun. She didn't say it's

loaded. All she -- and she didn't show it. All she said is:

I have a gun. I have a gun. I have a gun. What about it?

MR. FINE: I think that clearly meets the elements of

Hobbs Act.

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THE COURT: I do. What do you think?

MR. ARCHER: That's not our scenario.

THE COURT: Whether it meets -- meets me. What is

the standard?

MR. ARCHER: The standard? No rational juror.

THE COURT: Why wouldn't a rational juror think

that -- that somebody hearing the words "I have a gun" believe

that that's a threat?

As a matter of fact, most bank robberies occur with a

person saying "I have a gun." That's how most bank robberies

occur.

Now, I will say bank robbers are generally unsuccessful,

but in -- in apprehension, but those are robberies. Those are

bank robberies.

I think it's the same thing. I think that the argument

is, you can say, well, the evidence is not sufficient, if

that's what your argument is, that she issued a threat; that

she said she had COVID. You can say that. I don't know. The

jury will conclude that you're right or wrong and maybe you

have some other arguments.

But if it's a marriage between the act of taking

merchandise and the statement "I have COVID" and that was a

statement that was communicated, I think that a reasonable

juror -- I know that's -- whatever the testimony is, it defeats

a Rule 29 in my view.

Debra L. Pas, CSW, XPX X914W, CR9Z,

Official Wpporter - 'U.S. District Court - San Francisco

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Okay. So, denied.

Let's talk about Jury Instructions. Okay?

MR. ARCHER: Sure.

MR. FINE: Certainly, Your Honor.

THE COURT: You want to take five minutes, ten

minutes and then reassemble?

MR. FINE: Sure.

MR. ARCHER: Yes, please. Thank you.

THE COURT: Let's be in recess for 15 minutes.

(Whereupon there was a recess in the proceedings

from 3:37 p.m. until 3:55 p.m.)

THE COURT: Let the record reflect all parties are

present. Jury is not.

So let me go through instructions that I intend to give

and have a discussion about any that are an issue.

Okay. Are we ready?

MR. FINE: Yes, Your Honor.

MR. ARCHER: Ready.

THE COURT: 3.1, duties of jury to find facts and

follow the law.

3.2, charge against Defendant not evidence. Presumption

of proof -- presumption of innocence, burden of proof.

3.3, Defendant in a criminal case, constitutional right

not to testify.

3.5, reasonable doubt.

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FINAL JURY INSTRUCTIONS

charge, the Government must prove each of the following

elements beyond a reasonable doubt.

First, the Defendant knowingly obtained money or property

from or in the presence of Walgreens Pharmacy.

Second, the Defendant did so by means of robbery.

Third, the Defendant believed that Walgreens Pharmacy

parted with the money or property because of the robbery.

And fourth, the robbery affected interstate commerce.

This element, being the fourth element, has been

established by way of stipulation.

Robbery means the unlawful taking or obtaining of personal

property from the person or in the presence of another against

their will by means of actual or threatened force or violence

or fear of injury, immediate or future, to their person or to

the person of a relative or member of their family or anyone --

or of anyone in their company at the time of the taking or

obtaining. Threatening to infect another person with a disease

can amount to threatened force, violence or fear of injury,

immediate or future, to that person.

An act is done knowingly if the Defendant is aware of the

act and does not act through ignorance, mistake or accident.

The Government is not required to prove that the Defendant knew

•

her acts or omissions were unlawful.

You may consider the evidence of the Defendant's words,

act or omissions, along with all of the other evidence, in

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PROCEEDINGS

So I leave that off and I just say:

"Evidence can be direct or circumstantial. You

can consider both kinds."

And the reason you even give that is because there is a

myth that people have: Oh, no you can't convict somebody on

circumstantial evidence. No, no. That's not any good.

Circumstantial? No. Well, that's what this is about.

3.9, credibility of witnesses.

Now, activities not charged. There is- no evidence of any

other activities, is there?

MR. FINE:

I don't believe so, Your Honor.

THE COURT:

I don't think so.

MR. ARCHER:

No, Your Honor.

THE COURT:

Okay. On or about. We don't need to do

that.

Statements by Defendant. Don't need to do that.

Other crimes or acts. Don't need to do that.

Knowingly. Here we go. You do need that, but I'm not

sure -- no, I'm going to give the -- the next one I'm going to

give is not the knowingly one, but the Hobbs Act one, which is

8.143A.

And I'm giving the Government's version. So it will read:

"Robbery," in the last paragraph "means the

unlawful taking or obtaining of personal property from

the person or in the presence of another against his

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PROCEEDINGS

will by means of actual or threatened force or

violence or fear of injury, immediate or future, to

his person or property or to property in his custody

or possession."

You know, I can modify that. This is not a -- this is not

a threat to property, is it?

MR. ARCHER:

MR. FINE:

No, Your Honor.

THE COURT:

So it really should be:

"Robbery means the unlawful taking or obtaining

No.

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," period.

"To his person." "To his person or to the person" --

well, huh.

"...or to the person of a relative or member of

his family or of anyone in his company at the time of

the taking or obtaining. Threatening to inflict

another person with a disease can amount to threatened

force, violence or fear of injury, immediate or

future, to that person."

MR. ARCHER:

So the Defense certainly objects to

that, Your Honor. That basically codifies the Government's

perspective on this.

DeOra L. Pas, CSW, UR, W>C14R,

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I mean, it's codifying their closing argument in this

case. It's contrary to Dominguez and Johnson, and I think it

would be -- I don't understand why giving the model instruction

would be -- would be inappropriate in this case.

The Government is always welcome to argue that this would

be -- you know, that the facts are sufficient.

But this is not -- this is not the model instruction.

They have added:

"Threatening to infect another person with a

disease can amount to threatened force, violence or

fear of injury, immediate or future, to that person."

AS'we have 'argued, we briefed this issue.• The reliance on

. Castleman is inappropriate. I mean,-DbmingUez, '354 F..3d, at

. 1260, you know, distinguishes Castleman in -thattespebt

Ind stHI'

We,abeolUtely;:object to it We think -

'Sort Of at a' loss as tb why-the:Model instruction wouldn't be

gi'venWhen-itLS the Government's bUrden.tp.prbve what would be

a threat, what would'be A threat of harm injury Or violence.

:s1cthell. yet..ate effectively the Gpvernment'sposition4ha

Jury IhAtru'etiOn ntould be extradrdiharily prejudicial to the

Defense.

MR. FINE: Your Honor --

THE COURT: 143A.

MR. FINE: If I may respond, Your Honor?

THE COURT: Yeah, sure.

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MR. FINE: Obviously, that last sentence is not in

the model instruction.

THE COURT: Right.

MR. FINE: We think it's an important clarification

based on the pretty clear case law as we see it that we've

cited right here.

I think the jury is naturally going to ask, because this

is not your typical case with a gun, as Your Honor described

earlier. This is a case where someone was threatening -- or at

least the Government thinks threatening to infect someone with

a disease.

The jury will probably naturally wonder whether, you

know -- if that was the intent of the Defendant, whether that

could qualify as Hobbs Act robbery. And I think this case law

makes clear that it would. And this is a clarification that I

think is especially helpful for this case.

MR. ARCHER: Is Castleman a robbery case?

THE COURT: Pardon?

MR. ARCHER: I'm just asking the Government: Is

Castleman a robbery case? They have cited Castleman as the

basis for this. Is it a robbery case? Is it a case dealing

with Hobbs Act robbery?

MR. FINE: If I may respond, Your Honor.

We cite Castleman in literally the next sentence:

"Several District Courts have held that

Debra L. Pas, CSR, R.RX R,VR, CRX

District Court - San Francisco

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Castleman's use of force definition applies in a Hobbs

Act context."

And we have lots of cites to Courts that have applied

Castleman -THE COURT:

Well, this seems to me -- it seems to me

it makes sense.

You're not arguing this is an incorrect statement of the

law. You're arguing that it's unnecessary for me to give it.

I'm also arguing that it's an incorrect

MR. ARCHER:

statement of the law --

THE COURT:

Is it?

MR. ARCHER: -- under Johnson and Dominguez.

THE COURT: In other words,: .1 threaten to make

sOmebody:sick, that's not-- that threat Can't be Considered in

the. odiltextpf-a:-.1.1obbs Act?.

MR. ARCHER:

It Can be conaidered, but that's for the

not .-- - what I'm_saying is

Government.to argue, .But

defining that aS Sufficient is inappropriate.

THE COURT:

I can add a sentence:

"It is for you to determine whether or not there

was a threat to infect another person."

I mean, I don't Want to take -- I'm not -- I don't want

the sentence to assume within it that the Court finds that the

threat occurred. I want the Sentence to reflect that if the

jury finds it did occur, it, as a matter of law, is . -- is a use

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of force.

MR. ARCHER:

So I guess where I am having a problem

here is why there is an effort to wrap in the Government's

theory in this case, which is that a shoplifting wrapped in a

threat or an implied threat, as they have now acknowledged -there is no explicit threat -- would be something that needs to

be then put into a Jury Instruction. I don't understand why

the model instruction would be insufficient in this case

when -- I mean, the Government is -THE COURT:

Well, the reason is because of the

involvement of -- of this type of injury.

First of all, it may not have been contemplated or -- I

don't know whether there are any cases on the Spanish flu

epidemic, but the question is for jurors to understand that

threatening a person with a communicable fatal disease is a

threat of harm.

MR. ARCHER:

So what I'm saying is --

THE COURT:

You're not arguing that that's not the

case. You're arguing -- you're arguing why am I putting that

in.

It's because if somebody said, "I'm going to shoot my gun

at you," you don't need a definition. Shooting a gun at a

person in which a bullet would possibly travel into the

person's heart or brain is use of force, is a threatened use of

force. No, everybody knows that. But people may not know that

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the threat of infecting you is a use of force.

Now, you say -- and is it your argument that that is

really a jury determination; that is to say, assuming it even

happened, whether it was a threat of force -- whether it's a

threat of force, I don't know. I'm sort of lost in this. I

don't understand your argument.

MR. ARCHER: So I think -- and I think Mr. Reichmuth

just made a good point, which I was pondering as well.

,Why

is it not in the jury's purview to determine whether a

threat of the disease would be an .injury? Because, I mean, a

threat of

necessarily result in an injury.

threStofany cOmMunicble disease Wouldn't

I mean, that is -- there is a threshold for the jury -THE COURT; There is no evidence, by the way, is

there in this record?

I mean, actually, actually, you objected to the one piece

of evidence that might very well have eStablished the

communicable - the dangerousness of the disease.

I don't think you can have it bOth Ways. You objected to

the shelter-in-place order in which there were multiple

findings of the dangerousness of COVID. You said: No, I don't

want any that in. It's too prejudicial. Okay. That's fine_

It didn't come in.

But now on the other hand to argue that COVID is -- that

the Government failed to prove that COVID is a dangerous

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disease is contrary to what I had understood the issues of the

case to be and the Government's proof. They wanted to prove

how dangerous it was. That's what they started out by doing,

and then you said, no, it's not necessary because it's too

prejudicial.

MR. ARCHER: So --

THE COURT: I mean, they could have had two weeks of

statistics, of showing 500,000 people died, the State of

California closing down.

But, you know, the jury knows a lot of this anyway, but

it's not in the record. I agree with you, it's not in the

record, because you kept it out.

MR. ARCHER: But that's my job. I mean

THE COURT: No, no, no. No. Your job -- yes, your

job can be you kept it out.

MR. ARCHER: Correct.

THE COURT: Your job is not: I kept it out and,

therefore, they can't argue the opposite when they offered

testimony to which you objected on the grounds that it was

prejudicial. You can't get it every way.

MR. ARCHER: I think the Court has hit it right on

the head there. They are not precluded in any way from arguing

this. What should --

THE COURT: There is nothing in the record.

MR. ARCHER: Sorry?

De6ra L. Tas, CS X WR,V 1 CXX

OfficiaC Xeporter - V.S. District Court - San (Francisco

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THE COURT: There is. nothing in the record. There is

:no record of' what'CPVTID

MR. ARCHER: That's not a failing on the Defense's

part.

THE COURT: No. You objected to it coming in.

MR. ARCHER: Sure.

THE COURT: Well, okay. Okay. You've got your -- if

there is a conviction, you have your appellate point. I would

bevery:interested in what An appeals court' wbuld say in 14g.ht

Of the way this*tecord.has been developed;

MR. FINE: Your Honor

THE COURT: You know what I could do? I could allow

them -- if you're going to argue that, I will allow them to

open up their case tomorrow and put on all thiS stuff so there

is plenty in the record of how dangerous COVID is.

That's the option. If you're going to argue it, then I'm

going to let them reopen their case.

Don't look at me like I'm crazy, The fact of the matter

is, you can't have it every way and then say: Well; that's my

job.

The fact of the matter is that if you have taken an issue

by objection out of the -- out of the trial, which I believe

you' did when you objected to the shelter-in-place order and all

the findings therein, I took that to mean that that was not

going to be contested. That is, you're not going to contest

0Je6ra L. Pas, CR, XDR, VTR, CXX

porter - V.S. District Court - San Francisco

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the issue as to whether or not COVID is a dangerous disease

which can be communicated by way of air transmissions through a

cough. I believed you weren't going to argue that.

If you want to argue it -- I'm not saying you can't -just tell me. If you're going to argue it, I'm allowing them

to reopen their case and put in all evidence that they want to

that's relevant on the issue of the dangerousness of COVID.

MR. ARCHER: My request is that the model instruction

be given because the Government is -- this is effectively

aiding the Government and stretching the boundaries of Hobbs

Act robbery by giving them a definition within the instruction

that includes their fact pattern. So that's my --

THE COURT: As a matter of fact, Mr. Archer, I don't

think anybody who has been a witness to these proceedings to

date thinks I'm aiding the Government.

MR. ARCHER: What I'm saying is that inclusion of

this instruction would aid their efforts to --

THE COURT: Well, I don't want to be flip. I know

that's what you're saying. That's a nice way of sidestepping

what I just said.

What I have just said, so it's clear, and I'll be

listening to your argument, because it may -- I may do it right

in the middle, is that if you are going to make an issue, say

that the Government has failed to show that COVID is the -- is

a threat to the health of an individual and failed to show that

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CRR

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violence or fear of injury, immediate or future, to that

person. So that's why it's there, because they may have to

prove it.

They -- I mean, they have to prove that the words that

were uttered, if they were uttered, if they were communicated

or intended to be communicated, they may have to prove all of

that.

What they don't have to prove is the dangerousness of

COVID, unless you challenge that. If you challenge it, then

I'm going to let them reopen their case.

You don't have to decide now, but that's what I'm going to

do. Meanwhile, I'm leaving this instruction in because I think

it addresses that point.

Okeydoke. So 8143 goes in as suggested by the Government.

As to affecting interstate commerce, I will simply say

that the element of the offense -- the robbery affected

interstate commerce has been -- that the impact -- that the

Defense is not -- I have to --

MR. FINE: The Defense agrees that the Government has

proven beyond a reasonable doubt that -- or maybe hasn't

proven, but the Defense agrees that --

THE COURT: The taking of property -- taking of the

property that's the subject of this prosecution affected

interstate commerce as that term is defined in the Hobbs Act,

something like that.

Degra L. Pas, CSX UT, 1914R, CRW,

Official' Reporter - V.S. District Court - San (Francisco

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it can be communicated by way of air transmissions, they failed

that, and absent that, they haven't been able to show that this

was a threat of harm within the meaning of the Hobbs Act --

that's what you're going to argue -- I'm going to allow them to

reopen. Because I kept it out. Because it is so prejudicial.

It comes right in, if that's your argument.

Now, if you want to argue that there's insufficient

evidence that she communicated a threat; that is -- I mean,

it's like saying -- if -- if you're going to challenge whether

a gun is dangerous, I'm going to allow evidence in of guns. If

you're going to challenge whether COVID is dangerous, I'm going

to allow in evidence of COVID. If you're going to Challenge

13 :..Whether,the person . communicated a threat abouta gun, if you're

going to challenge, I'm-- I'm going to

yOu're.going to

15 ,challenge the;

#sue - whether:the'GoVernMent'has proven that she

issued a threat of COVID, that's a different story You

17 ,certainly are free to .d that.

You made it in your Rule 29 motion, and you can argue

it -- you can argue it because it's an element of the offense.

I know it's also an element of the offense with respect to

whether it's a threat of harm, but I had -- I had accepted, by

22 virtue of the way the case was posited, that that was not going

to be contested.

And that's really what this is. Threatening to infect

another person with a disease can amount to threatened force,

Debra L. Pas, CSX XDR,V CRR,

Officiatporter - V.S. District Court - San Francisco

(415) 431-147

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DEFENSE PROPOSED INSTRUCTION No. 30 [DISPUTED]

HOBBS ACT—

ROBBERY (COUNT ONE)

The defendant is charged in Count One the indictment with robbery in violation of Section 1951

of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the

7 government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly obtained money or property from or in the presence of Walgreens

Pharmacy;

Second, the defendant did so by means of robbery;

Third, the defendant believed that Walgreens Pharmacy parted with the money or property

because of the robbery; and

Fourth, the robbery affected interstate commerce.

"Robbery" means the unlawful taking or obtaining of personal property from the person or in

the presence of another, against their will, by intentional means of actual or threatened force, or

violence [or fear of injury, immediate or future, to his person or property, or to property in his custody or

17 possession, or to the person or property of a relative or member of his family or of anyone in his

18 company at the time of the taking or obtaining].

NINTH CIRCUIT MODEL JURY INSTRUCTION NO. 8.143A, United States v. Dominguez, 954 F.3d 1251,

1261 (9th Cir. 2020); United States v. Woodruff, 296 F.3d 1041, 1048-48 (11th Cir. 2002)

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GOVERNMENT PROPOSED INSTRUCTION No. 30 [DISPUTED]

HOBBS ACT—

ROBBERY (COUNT ONE)

The defendant is charged in Count One the indictment with robbery in violation of Section 1951

of Title 18 of the United States Code. In order for the defendant to be found guilty of that charge, the

government must prove each of the following elements beyond a reasonable doubt:

First, the defendant knowingly obtained money or property from or in the presence of Walgreens

Pharmacy;

Second, the defendant did so by means of robbery;

Third, the defendant believed that Walgreens Pharmacy parted with the money or property

because of the robbery; and

Fourth, the robbery affected interstate commerce.

"Robbery" means 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 to property in his custody or possession, or to

the person or property of a relative or member of his family or of anyone in his company at the time of

the taking or obtaining]. Threatening to infect another person with a disease can amount to

threatened force, violence, or fear of injury, immediate or future, to that person.

Authority

NINTH CIRCUIT MODEL JURY INSTRUCTION NO. 8.143A, 18 U.S.C. § 1951; United States v.

Castleman, 572 U.S. 157, 170-71 (2014).

The Supreme Court has clearly held that infecting a person with a disease constitutes the use of

"force":

But as we explained in Johnson, "physical force" is simply "force exerted

by and through concrete bodies," as opposed to "intellectual force or

emotional force." And the common-law concept of "force" encompasses

even its indirect application. "Force" in this sense "describ[es] one of the

elements of the common-law crime of battery," and "[t]he force used" in

battery need not be applied directly to the body of the victim." A battery

may be committed by administering a poison or by infecting with a

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disease, or even by resort to some intangible substance, such as a laser

beam.

The "use of force" in Castleman's example is not the act of "sprinkl[ing]

the poison; it is the act of knowingly employing a device to cause harm.

That the harm occurs indirectly rather than directly (as with a kick or

punch) does not matter. Under Castleman's logic, after all, one could say

that pulling the trigger on a gun is not a "use of force" because it is the

bullet, not the trigger, that actually strikes the victim.

United States v. Castleman, 572 U.S. 157, 170-71 (2014) (emphasis added) (internal citations and

quotation marks omitted).

Several district courts have held that Castleman's "use of force" definition applies in the Hobbs

Act context. See Cancel-Marrero v. United States, 333 F. Supp. 3d 40,43 (D. PR. 2018) ("Finally, the

'fear of injury' in Hobbs Act robbery encompasses a fear of injury produced by physical force that is

one step removed from, but caused by, the physical force of the offender. As such, a person that

commits Hobbs Act robbery by instilling onto his victim the fear of being poisoned, exposed to

chemicals, or locked in a hot car is necessarily threatening to use physical force,"); see also United

States v. Williams, 179 F.Supp.3(.1 141, 152 (D. Me. 2016); United States v. Pena, 161 F.Supp.3d 268,

279 (S.D.N.Y. 2016) (stating that "the text, history, and context of the Hobbs Act compel a reading of

the phrase "fear of injury" that is limited to fear of injury from the use of force."); United States v.

Herstch, 2017 WL 4052383 at *5 (E.D.V.A. Sept. 12, 2017) (discussing Castleman and holding that "in

the Hobbs Act robbery context, even 'fear of injury' stemming from a threat of indirect physical force

constitutes a crime of violence.").

In the bank robbery context, the Ninth Circuit has held that taking property "by intimidation"

satisfies the force element of the bank robbery statute. See United States v. Alsop, 479 F.2d 65, 66-67

(9th Cir, 1973) ("Now, to take 'by intimidation' means wilfully to take by putting in fear of bodily harm.

Such fear must arise from the wilful conduct of the accused, rather than from some mere temperamental

timidity of the victim; however, the fear of the victim need not be so great as to result in terror, panic, or

hysteria. A taking 'by intimidation' must be established by proof of one or more acts or statements of

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the accused which were done or made, in such a manner, and under such circumstances, as would

produce in the ordinary person fear of bodily harm."). The Ninth Circuit has also applied this taking "by

intimidation" standard to the Hobbs Act context. United States v. Howard, 650 Fed. Appx. 466 (9th Cir.

2016) ("Because bank robbery by "intimidation"—which is defined as instilling fear of injury—qualifies

as a crime of violence, Hobbs Act robbery by means of "fear of injury" also qualifies as crime of

violence.") (citing United States v. Selfa, 918 F.2d 749, 751 (9th Cir. 1990)).

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GOVERNMENT OBJECTION TO DEFENSE PROPOSED INSTRUCTION No. 30

The government objects to the defense's addition of the word "intentional" into the definition of

"Robbery" in its proposed instruction no. 30. The defense's cited authority does not actually support the

addition of "intentional" to the model instruction. Instead, both cases stand for the unobjectionable

proposition that a robbery cannot be accomplished by mere negligence or recklessness. instead, the

robbery must be committed knowingly or willfully. In fact, the model instruction already requires that

the taking be committed "knowingly" (see first element), and a separate model instruction proposed by

the parties specifically defines "knowingly." (5.7). Accordingly, the government does not believe the

defense's proposed departure from the model instruction is necessary or supported by precedent. The

defense's proposed language is also clunky and more likely to confuse the jury than to help clarify the

law. In fact, from the government's research, the phrase "intentional means of actual or threatened

force" does not appear to have ever been used in a federal case anywhere in the country.

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UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

FILED

MAR 29 2023

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

CARMELITA BARELA,

Defendant-Appellant.

No. 21-10231

D.C. Nos.

3:20-cr-00254-CRB-1

3:20-cr-00254-CRB

Northern District of California,

San Francisco

ORDER

Before: CLIFTON, BEA, and NGUYEN, Circuit Judges.

Judge Nguyen has voted to deny the petition for rehearing en banc, and

Judge Clifton and Judge Bea have so recommended. The full court has been

advised of the petition for rehearing en bane and no judge has requested a vote on

whether to rehear the matter en bane. See Fed. R. App. P. 35.

The petition for rehearing en bane is denied.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.