                    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 failed to demonstrate that any
instructional error was not harmless in light of his post-arrest
admissions.

   Dissenting in part, District Judge Zilly wrote that the
district court’s exclusion of the defendant’s expert witness,
without any finding that the defendant engaged in willful or
blatant conduct, violated the defendant’s fundamental right
to due process, requiring reversal and a new trial on all
appealed counts.
4          UNITED STATES V. MORENO ORNELAS

                        COUNSEL

Carlton F. Gunn (argued), Pasadena, California, for
Defendant-Appellant.

Angela W. Woolridge (argued), Assistant United States
Attorney; Robert L. Miskell, Appellate Chief; Elizabeth A.
Strange, Acting United States Attorney; United States
Attorney’s Office, Tucson, Arizona; for Plaintiff-Appellee.


                         OPINION

FRIEDLAND, Circuit Judge:

    On a summer day in the Arizona desert, not far from our
country’s southern border, United States Forest Service
Officer Devin Linde (“Linde”) encountered Defendant-
Appellant Jesus Eder Moreno Ornelas (“Moreno”). A
struggle ensued. Afterwards, each man claimed that the
other had forced him into a fight for his life. Moreno was
convicted at trial of multiple federal crimes. We reverse his
convictions for attempted robbery of Linde’s gun and
vehicle because there was plain error in the jury instructions
on those counts, but we otherwise affirm.

                              I.

    Linde was responsible for patrolling a vast swath of
mountainous desert stretching across Arizona and New
Mexico and running down to the Mexican border, which
contained areas of National Forest. Apart from the Forest
Service, the United States Border Patrol was the only law
enforcement agency operating in that remote area. While
carrying out his duties, Linde often encountered people who
had crossed the border unlawfully, some of whom were
              UNITED STATES V. MORENO ORNELAS                      5

smuggling drugs. Many of those people fell victim to the
heat and harsh terrain. Stranded without food and water,
they sometimes sought help from federal officers on patrol.
Linde carried water and other supplies in his truck to prepare
for such encounters.

                                   A.

    One day during a patrol, Linde received a report of
suspicious people walking along a road near an area of
National Forest. Linde called Border Patrol and was asked
to respond. As he had many times before, Linde agreed to
assist and set out in his truck, which was clearly marked as a
law enforcement vehicle. Before long, he encountered two
men, one of whom had scrapes and scratches on his face.
The other, who did not appear injured, was Moreno.

    The two men walked up to the truck. Linde offered them
water, but they declined. Linde then directed Moreno and
his companion to come to the front of the truck and put their
hands on the hood. The injured man complied, but Moreno
did not. With verbal commands failing, Linde drew his gun.
A struggle between Linde and Moreno began moments later,
the details of which are in dispute. 1

                                   1.

   Linde testified in Moreno’s subsequent jury trial that he
ordered Moreno to turn away and put his hands on his head.
This time, Moreno complied. Linde approached with his
gun drawn. When he was a few feet away, Linde holstered



   1
       The injured man appears to have fled during the struggle.
6          UNITED STATES V. MORENO ORNELAS

his weapon and pulled out handcuffs. After cuffing
Moreno’s right hand, Linde began to cuff Moreno’s left.

    At trial, Linde admitted not remembering exactly what
happened next, but he recalled being yanked forward, then
going blank. The next thing he knew, he and Moreno were
fighting. Moreno went for the gun. Linde threw his hands
down to his holster, one covering the handle of the gun, the
other fending off Moreno.

    Moreno responded by throwing Linde to the ground.
Entangled, the two men rolled towards an embankment on
the side of the road. Moreno started pummeling Linde in the
face. Linde blacked out briefly before feeling his gun being
pulled out of its holster. Two shots rang out. Having lost
control of his weapon, Linde flailed his arms, searching for
the gun.

    Linde testified that he located the weapon right before
Moreno could take aim at his chest. Linde pushed Moreno’s
hand away and then rolled onto his side, just as another shot
discharged near his head. Linde grabbed Moreno’s wrist,
trying to keep the gun pointed away. Moreno nearly broke
free, but Linde grabbed him by the neck, wrapped his leg
around Moreno’s throat, and squeezed. Moreno fired several
shots skyward before dropping the gun.

    Linde grabbed it. He aimed at Moreno and pulled the
trigger. Nothing happened. Linde rolled away, backing up
to put distance between them. Moreno—on his knees, hands
in the air—cried “no, no, no, no.” Thinking the clip was
empty, Linde reloaded. Moreno bolted for the truck.

   As Moreno ran, Linde realized that the gun was jammed.
Linde quickly cleared the jam but, knowing that his truck
contained no weapons and that its security system would
           UNITED STATES V. MORENO ORNELAS                   7

prevent Moreno from driving away, did not fire. Instead, as
he told the jury, Linde went to the truck, aimed the gun at
Moreno’s chest, and threatened to kill him if he moved.
Linde then grabbed the radio and reported, “Shots fired.”

                              2.

     Moreno gave law enforcement a very different account
of the incident. In a post-arrest interview that was recorded
and later played for the jury, Moreno admitted that he
initially refused to comply with Linde’s commands but
claimed that he sat down as the officer approached with
handcuffs. By Moreno’s telling, Linde never holstered the
gun but instead kept his finger on the trigger, with the barrel
pointed at Moreno. Fearing for his life and wanting to return
to Mexico rather than go to prison, Moreno tried to grab the
gun. A shot went off. Moreno tackled Linde with all the
force he could muster. Two more shots rang out as the two
men struggled on the ground, each trying to wrest the gun
from the other.

    Moreno claimed that, by this point, he could have beaten
Linde unconscious. Instead, Moreno slammed Linde’s hand
onto the ground, forcing him to release the gun. Moreno
seized it, fired the remaining rounds into the air, and tossed
the gun aside. He ran for the truck, thinking he would drive
to the border and leave it there.

    Moreno recounted that, when he got behind the wheel,
he suddenly realized that he had been acting stupidly and that
he should not drive away. For that reason, Moreno
explained, he got out of the truck and gave himself up
voluntarily.
8          UNITED STATES V. MORENO ORNELAS

                              B.

    Moreno was charged with assault on a federal officer,
attempted murder of a federal officer, use of a firearm during
and in relation to a crime of violence, possession of a firearm
by a convicted felon, possession of a firearm by an illegal
alien, attempted robbery of Linde’s gun, attempted robbery
of Linde’s truck, and illegal reentry. At trial, the jury hung
on the attempted murder charge but convicted on the others.
The district court sentenced Moreno to just over 43 years in
prison.

                              II.

    On appeal, Moreno challenges all of his convictions
except the one for illegal re-entry. We reverse both of
Moreno’s convictions for attempted robbery but affirm the
rest.

                              A.

    Moreno argues that the jury instructions given at trial did
not accurately define the elements of attempted robbery
under 18 U.S.C. § 2112. The district court instructed that,
for the jury to convict Moreno of attempted robbery under
that statute, the Government had to prove that he “did take
or attempt to take from the person or presence of another any
kind or description of personal property belonging to the
United States,” and that he “did so by force and violence, or
by intimidation.” Although Moreno requested an instruction
requiring the Government to prove that he acted with the
“intent to steal” and that his use of “force or intimidation”
was “directly related” to the attempted taking, he
acknowledges that he did not object when the district court
instructed the jury differently at trial. We may therefore
           UNITED STATES V. MORENO ORNELAS                     9

review only for plain error. See Jones v. United States,
527 U.S. 373, 388 (1999); see also Fed. R. Crim. P. 30(d).

    On appeal, Moreno maintains that the district court
plainly erred in two ways in instructing the jury on the
elements of attempted robbery under § 2112: (i) by failing to
instruct that Moreno must have possessed the specific intent
to steal; and (ii) by failing to instruct that Moreno must have
formed such intent by the time he used force, not just by the
time he tried to take the property in question. We agree with
the first contention but reject the second.

                               1.

    We may reverse for plain error only if four conditions
are met. “First, there must be an error that has not been
intentionally relinquished or abandoned.” Molina-Martinez
v. United States, 136 S. Ct. 1338, 1343 (2016). “Second, the
error must be plain—that is to say, clear or obvious.” Id.
“Third, the error must have affected the defendant’s
substantial rights,” which in cases like this one means that
there is “‘a reasonable probability that, but for the error,’ the
outcome of the proceeding would have been different.” Id.
(quoting United States v. Dominguez Benitez, 542 U.S. 74,
76 (2004)); see also, e.g., United States v. Conti, 804 F.3d
977, 981 (9th Cir. 2015). If those conditions are met, we will
exercise our “discretion to correct the forfeited error if the
error ‘seriously affects the fairness, integrity or public
reputation of judicial proceedings.’” Molina-Martinez,
136 S. Ct. at 1343 (quoting United States v. Olano, 507 U.S.
725, 736 (1993)).

                               2.

    Although the district court was correct not to instruct the
jury that Moreno must have formed the specific intent to
10           UNITED STATES V. MORENO ORNELAS

steal by the time he used force, the court was wrong—and
plainly so—to omit an instruction on specific intent
altogether.

    The statute under which Moreno was charged with
attempted robbery of Linde’s gun and truck punishes
“[w]hoever robs or attempts to rob another of any kind or
description of personal property belonging to the United
States.” 18 U.S.C. § 2112. Although the statute does not
further define “robs or attempts to rob,” see id., those terms
had “established meanings at common law,” Carter v.
United States, 530 U.S. 255, 266 (2000). And when
“Congress borrows terms of art in which are accumulated the
legal tradition and meaning of centuries of practice,” we
presume that Congress “knows and adopts the cluster of
ideas that were attached to each borrowed word in the body
of learning from which it was taken.” Id. at 264 (emphasis
omitted) (quoting Morissette v. United States, 342 U.S. 246,
263 (1952)). Thus, when Congress has “simply punished” a
common law crime, Congress has “thereby le[ft] the
definition of [the offense] to the common law.” Id. at 267
n.5. In fact, the Supreme Court has pointed to this very
robbery statute as an example of this legislative method.2
See id. (citing 18 U.S.C. § 2112). We accordingly “turn to
the common law for guidance” in interpreting the statutory
phrase “robs or attempts to rob.” Id. at 266.


     2
     In Carter, the Supreme Court distinguished the statute at issue here
(§ 2112 robbery of government property) from that at issue there (§ 2113
bank robbery). See 530 U.S. at 267 & n.5. Because § 2113, unlike
§ 2112, spells out elements of the offense and does not simply punish
“robbery,” the Court declined to import elements of common law
robbery not specifically enumerated in the text of § 2113. See id. at 264–
67.
              UNITED STATES V. MORENO ORNELAS                             11

    At common law, robbery was “the felonious and forcible
taking, from the person of another, of goods or money [of]
any value by violence or putting him in fear.” 4 W.
Blackstone, Commentaries on the Laws of England 241
(1769). In addition to requiring a defendant to assault
another person and take his things, this definition required
the defendant to take them with “felonious intent.” 3 Id. And
“felonious” is just “a common-law term of art signifying an
intent to steal.” Carter, 530 U.S. at 278 (Ginsburg, J.,
dissenting); accord United States v. Lilly, 512 F.2d 1259,
1261 (9th Cir. 1975) (observing that “feloniously” was
“recognized as signifying the element of specific intent to
steal in robbery at common law”).

    Common law robbery was therefore a specific intent
crime. See, e.g., Lilly, 512 F.2d at 1261; United States v.
Klare, 545 F.2d 93, 94 (9th Cir. 1976); 3 Wayne R. LaFave,

    3
       For completed robbery at common law, there must have been a
taking involving some degree of “asportation,” Carter, 530 U.S. at 272,
which meant “at least a slight movement” of the property, 3 Wayne R.
LaFave, Substantive Criminal Law § 20.3(a)(2) (3d ed. 2017). But
attempted robbery could not have required the same, because it would
otherwise have collapsed into the completed offense. Cf. 4 Blackstone
at 231 (observing that even the “bare removal from the place in which
[the thief] found the goods, though the thief d[id] not quite make off with
them, is a sufficient asportation, or carrying away” for completed
larceny). Instead, attempted robbery “at common law require[d] proof
that the defendant . . . took some overt act that was a substantial step
toward committing” robbery with the requisite intent. United States v.
Gracidas-Ulibarry, 231 F.3d 1188, 1190 (9th Cir. 2000) (en banc)
(addressing common law attempt generally). Given our reversal here
based on the omission from the jury instructions of the specific intent
element, we need not also rule on Moreno’s new argument on appeal
regarding the district court’s failure to instruct the jury on the substantial
step element.
12            UNITED STATES V. MORENO ORNELAS

Substantive Criminal Law § 20.3(b) (3d ed. 2017). That
meant, for example, that a defendant accused of “snatching
[a] pistol” was not guilty of robbery at common law if he had
“not . . . intended at the time to steal it” and intended instead
to “prevent its being used against [hi]m.” Jordan v.
Commonwealth, 66 Va. (25 Gratt.) 943, 948 (1874). This
principle held true even if a defendant later formed an intent
to permanently deprive the owner of the property—thus, a
defendant was not guilty of robbery even if after “t[aking] a
gun by force . . . under the impression that it may be used
against him,” he admitted “that he w[ould] sell the gun.” R
v. Holloway (1833), 5 Car. & P. 524, 524–25. Common law
robbery—and by extension common law attempted
robbery—thus required the defendant to have formed the
specific intent to steal by the time he took the property in
question. 4

    But, at common law, the defendant need not have formed
the specific intent to steal by the time he used or threatened
to use force. To the contrary, it was enough for a defendant
to “take[] advantage of a situation which he created for some
other purpose.” 3 LaFave § 20.3(e). As a result, a defendant
“who str[uck] another, perhaps intentionally but with no
intent to steal . . . and who then, seeing his adversary
helpless, t[ook] the latter’s property” was guilty of robbery.
Id. & n.98 (collecting cases) 5; see also, e.g., R v. Hawkins

     4
      For a defendant to possess the specific intent to steal, he need not
intend “to convert the property to [his] own use; it is sufficient that there
is an intention to permanently deprive the owner of the property.”
3 LaFave § 20.3(b); see also Carter, 530 U.S. at 268 (equating the
“specific intent” to steal with the intent to “permanently . . . deprive” the
victim of its property).
     5
       We recognize that this well-regarded treatise is not entirely
consistent on this point. Another section of the treatise suggests that the
             UNITED STATES V. MORENO ORNELAS                          13

(1828), 3 Car. & P. 393, 393 (observing that where “a gang
of poachers attack[ed] a game-keeper, and le[ft] him
senseless on the ground,” the “one of them [who] return[ed]
and st[ole] his money” was guilty of robbery even if he and
the others had attacked only to “resist the keeper[’]s” efforts
at preventing poaching). The same was true of a defendant
who threatened a woman with the intent to rape her, only to
accept her offer of money instead. See R v. Blackham
(1787), 2 East P.C. 711, 711.

     It follows that a defendant would have committed
attempted robbery at common law if he struck another
without the specific intent to steal and then reached to take
the helpless adversary’s property—only to be thwarted in
carrying out his freshly formed specific intent to steal by the
timely arrival of a constable. See 2 LaFave § 11.3(a)
(describing the requisite mental state for attempt as “the
intent to do certain proscribed acts or to bring about a certain
proscribed result”); see also United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1193 (9th Cir. 2000) (en banc)
(“The reason for requiring specific intent for attempt crimes
is to resolve the uncertainty whether the defendant’s purpose
was indeed to engage in criminal, rather than innocent,
conduct.”).

    Congress’s use of the common law terms “robbery” and
“attempted robbery” in § 2112 imported the common law
meanings of those terms. The district court therefore should
have instructed the jury that, to convict Moreno of attempted
robbery, it needed to conclude beyond a reasonable doubt


specific intent to steal must coincide with the use or threatened use of
force, but that section is unpersuasive because it relies only on a single
modern case analyzing a state robbery statute. See 1 LaFave § 6.3(a) &
n.11 (citing People v. Green, 609 P.2d 468, 498-500 (Cal. 1980)).
14            UNITED STATES V. MORENO ORNELAS

that he had formed the specific intent to steal the gun and
truck by the time he tried to take them, though not
necessarily by the time he used force against Linde. And,
given the well-settled elements of common law robbery as
well as Carter’s clear indication that § 2112 incorporates the
common law, failing to instruct the jury on specific intent
was an obvious omission. 6

                                    3.

   That obvious instructional error affected Moreno’s
substantial rights, and it seriously undermined the fairness
and integrity of the proceedings. See Molina-Martinez,
136 S. Ct. at 1343. We therefore reverse both of Moreno’s
convictions for attempted robbery.

    To begin, there is a reasonable probability that failing to
instruct the jury that Moreno must have had the specific
intent to steal the gun—that is, the specific intent to
permanently deprive Linde of the weapon—affected the
jury’s verdict. Again, Moreno claimed that he grabbed the
gun to avoid being shot. Even if the jury did not believe that
Moreno reasonably feared for his life before the struggle, the
jury might well have believed Moreno when he said that he
“struggled with the officer for all the bullets to be fired” so
that he “could go to Mexico,” and that he tossed the gun

     6
      Indeed, even as to robbery statutes that, unlike § 2112, require only
general intent for the completed offense, we have required specific intent
for an attempt. See, e.g., United States v. Goldtooth, 754 F.3d 763, 770
(9th Cir. 2014) (requiring specific intent for attempted robbery within
the special maritime and territorial jurisdiction of the United States under
18 U.S.C. § 2111); United States v. Darby, 857 F.2d 623, 626 (9th Cir.
1988) (requiring specific intent for attempted bank robbery under
18 U.S.C. § 2113(a)).
             UNITED STATES V. MORENO ORNELAS                          15

aside once he had emptied the clip. 7 On those facts, Moreno
would have lacked the specific intent to steal. Accordingly,
Moreno has shown that the evidence was not
“overwhelming” as to the omitted element, and thus has
convinced us that the plain instructional error affected his
substantial rights. United States v. Nguyen, 565 F.3d 668,
677 (9th Cir. 2009); see also Conti, 804 F.3d at 981–82
(collecting plain error cases).

    The same is true of the attempted robbery conviction
related to the truck. Recall Linde’s testimony. He told the
jury that, in the heat of the struggle, he tried to shoot Moreno
but the gun did not fire. Linde then rolled away from
Moreno, who was left kneeling on the ground, pleading for
his life. Linde reloaded, and Moreno ran for the truck. On
those facts, the jury could have found that Moreno intended
to flee for fear of being shot, rather than with intent to steal
the truck. And given how close to Mexico the struggle
occurred, Moreno’s statement that he planned to abandon the
truck at the port of entry left room to conclude that he
expected all along that the truck would be recovered. Failing
to instruct on specific intent thus affected Moreno’s
substantial rights on this count too. 8


    7
      Chief Judge Thomas’s dissent argues that Moreno’s admission that
he intended to “throw [the gun] away in the desert,” shows he intended
to permanently deprive Linde of the gun. But given that the struggle
occurred in the desert, the jury could just as easily have concluded that
Moreno intended to toss the gun out of reach but not in a way that would
prevent Linde from later locating it.

    8
       All that said, construing the trial record in favor of the
Government, we reject Moreno’s contention that no reasonable jury
could find that he had the specific intent to steal as to either attempted
robbery count. See United States v. Nevils, 598 F.3d 1158, 1169 (9th
16           UNITED STATES V. MORENO ORNELAS

    Finally, the error seriously affected the fairness and
integrity of the proceedings. As in United States v. Paul,
37 F.3d 496 (9th Cir. 1994), the “instructions improperly
deprived [the defendant] of his right to have a jury determine
an essential element” of the offense: “mental state.” Id. at
501. Also as in Paul, the jury was presented with a version
of the events under which the requisite mental state was
lacking. See id. at 500. Thus, following Paul, we correct
the instructional error in this case because “a miscarriage of
justice would otherwise result.” Id.

                                   B.

    Moreno maintains that the jury instructions were flawed
in two additional ways that warrant reversal of his other
convictions. First, Moreno urges us to reverse all of his
remaining convictions on the ground that the jury
instructions given at trial failed to present resistance to
excessive force as a defense, and that the instructions thus
failed to cover his theory of the case. Second, Moreno
challenges his convictions for assault on a federal officer
under 18 U.S.C. § 111 and for use of a firearm during and in
relation to a crime of violence (the assault) under 18 U.S.C.
§ 924(c), contending that the instructions improperly
defined “official duties.” Neither argument is persuasive.




Cir. 2010) (en banc) (rejecting a sufficiency of the evidence challenge
because the evidence at trial was not “so supportive of innocence that no
rational trier of fact could find guilt beyond a reasonable doubt”).
Accordingly, the Government is not prohibited from retrying Moreno on
the attempted robbery counts. See, e.g., United States v. Shipsey,
190 F.3d 1081, 1088-89 (9th Cir. 1999).
             UNITED STATES V. MORENO ORNELAS                        17

                                  1.

    Moreno’s theory of the case was that Linde, by pointing
his gun directly at Moreno, used excessive force—and that
Moreno thus acted in reasonable self-defense from the start.
In line with that theory, Moreno requested an instruction
observing that “[a] person has a right to resist an officer who
is using excessive force” to supplement our court’s model
instruction on general self-defense. 9 The district court
declined to add that language to the model instruction.
Moreno objected.

    As a criminal defendant, Moreno had “a constitutional
right to have the jury instructed according to his theory of
the case” so long as the instruction he requested was
“supported by law and ha[d] some foundation in the
evidence.” United States v. Marguet-Pillado, 648 F.3d
1001, 1006 (9th Cir. 2011) (first quoting United States v.
Johnson, 459 F.3d 990, 993 (9th Cir. 2006), then quoting
United States v. Bello-Bahena, 411 F.3d 1083, 1088–89 (9th
Cir. 2005)). If the district court failed to give such an
instruction, we would have to reverse unless “other
instructions, in their entirety, adequately cover[ed]”
Moreno’s theory of the case. Id. (quoting United States v.
Thomas, 612 F.3d 1107, 1120 (9th Cir. 2010)). We assume
without deciding that Moreno’s excessive force instruction
was supported by law and had some foundation in the
evidence, but we hold on de novo review that the general
self-defense instruction given at trial adequately covered
    9
      We use the term “general” to differentiate this model instruction
from the model instruction geared specifically to a charge under § 111
of assault against a federal officer, which will be discussed below.
Compare Ninth Circuit Model Criminal Jury Instruction No. 6.8 (general
self-defense instruction), with id. No. 8.5 (§ 111 self-defense
instruction).
18            UNITED STATES V. MORENO ORNELAS

Moreno’s resistance-to-excessive-force theory. See Bello-
Bahena, 411 F.3d at 1089.

    Following our court’s model instruction on general self-
defense, the district court instructed the jury that the “[u]se
of force is justified when a person reasonably believes that it
is necessary for the defense of oneself or another against the
immediate use of unlawful force,” and that “[t]he
government must prove beyond a reasonable doubt that
[Moreno] did not act in reasonable self-defense.” See Ninth
Circuit Model Criminal Jury Instruction No. 6.8. That
instruction left Moreno ample room to argue that Linde’s use
of force was excessive and therefore “unlawful”—and that
Linde’s use of (allegedly) excessive force justified Moreno’s
attempt to grab the gun. Indeed, Moreno’s closing argument
made those very points. Thus, even if express language on
excessive force might have helped Moreno, and even if such
language would have done no harm, its absence did not
“impair [Moreno’s] right to have the jury decide whether the
government ha[d] proven” that he had not acted in
reasonable self-defense. 10 Marguet-Pillado, 648 F.3d at
1009 (emphasis omitted).


     10
        For three reasons, it also does not matter that the district court
declined to instruct the jury on a justification defense specific to the two
counts of unlawful possession of a firearm. First, the general self-
defense instruction allowed Moreno to argue not only that he was
justified in wrestling the gun away from Linde, but also that (by
extension) he was justified in possessing the gun despite his prior felony
conviction and immigration status—which is precisely what Moreno’s
closing argument contended. Second, Moreno was in some ways better
off without the proposed justification instruction. For example, the self-
defense instruction given at trial put the burden on the Government to
prove a lack of self-defense beyond a reasonable doubt, but Moreno’s
proposed justification instruction would have put the burden on Moreno
to prove justification by a preponderance of the evidence. Third,
             UNITED STATES V. MORENO ORNELAS                           19

     Contrary to Moreno’s contentions, United States v. Span,
970 F.2d 573 (9th Cir. 1992) (“Span I”), and United States
v. Span, 75 F.3d 1383 (9th Cir. 1996) (“Span II”), do not
require a different result.        In those two cases we
confronted—on direct appeal and collateral review,
respectively—a different instruction on a different record.
The problematic instruction in the Span cases was our
court’s model instruction geared specifically towards the
charge of assault on a federal officer. That instruction
shielded from guilt only defendants who (1) “reasonably
believed that use of force was necessary to defend
[themselves] against an immediate use of unlawful force,”
(2) “used no more force than appeared reasonably necessary
in the circumstances,” and (3) “did not know that [the
alleged victims] were federal officers.” Span I, 970 F.2d at
576; see also Span II, 75 F.3d at 1387–88. As we observed
in Span I, that instruction “allow[ed] the government to
defeat an excessive force theory of defense merely by proof
beyond a reasonable doubt that the defendant knew that the
person that [the defendant] allegedly assaulted was a federal
law enforcement officer.” 970 F.2d at 577. The district
court’s instruction in Span thus precluded an acquittal even
if the jury “believed that the [officers’] exercise of force . . .
was unlawful because it was excessive” and “found that the
[defendants] reasonably defended themselves from that
unlawful exercise of force.” Id.




although the general self-defense instruction referenced the “[u]se of
force” without expressly mentioning possession of a firearm, the district
court gave that instruction after instructing the jury on the elements of
every charge at issue in the trial. Giving the instructions in that order
suggested that the self-defense instruction applied beyond just the assault
and attempted murder charges.
20         UNITED STATES V. MORENO ORNELAS

     The general self-defense instruction given at Moreno’s
trial, by contrast, did not hinge on whether Moreno knew that
Linde was a federal officer. That being so, the jury in
Moreno’s case was not led to believe that, “regardless of the
amount of force used by” Linde, Moreno “had no legal right
to do anything except [to] submit.” Span II, 75 F.3d at 1390.
Rather, to reiterate, the jury was instructed that the “[u]se of
force is justified when a person reasonably believes that it is
necessary for the defense of oneself or another against the
immediate use of unlawful force.”

    To be sure, we observed in Span I that “the general self-
defense instruction offered by the [defendants] d[id] not
amount to a proposed instruction on the right to offer
reasonable resistance to repel any excessive force used by
federal law enforcement officers.” 970 F.2d at 578. But we
did so while emphasizing that the defendants had neither
presented at trial an excessive force theory of self-defense
nor preserved for direct appeal a challenge to the district
court’s use of a self-defense instruction foreclosing that
otherwise very promising theory. See id. And it is true that,
in Span II, we faulted trial counsel for “failing to request an
instruction that . . . self-defense in the face of an excessive
use of force . . . is an affirmative defense.” 75 F.3d at 1389.
But we did so while holding that trial counsel was
constitutionally ineffective for failing to present an
excessive force theory or to preserve a challenge to the self-
defense instruction given at trial. See id. at 1389–90. We
did not consider in Span I or Span II whether a general self-
defense instruction that did not depend on lack of knowledge
of officer status (if given) would adequately cover an
excessive force theory of self-defense (if presented). Having
confronted that question for the first time today, we hold that
the general self-defense instruction given at Moreno’s trial
             UNITED STATES V. MORENO ORNELAS                          21

adequately covered the excessive force theory of self-
defense that he presented to the jury.

                                   2.

    To convict Moreno of assaulting a federal officer, the
jury needed to find that he assaulted Linde while the officer
was “engaged in . . . the performance of [his] official
duties.” 11 18 U.S.C. § 111(a)(1). Moreno argues that, by
improperly defining “official duties,” the jury instruction
given by the district court misstated an element of the
offense. Moreno objected to the instruction at trial, so on
appeal we consider this contention de novo. See United
States v. Hofus, 598 F.3d 1171, 1174 (9th Cir. 2010).

    The district court instructed the jury that “the test” for
determining whether an officer is “[e]ngaged in the
performance of official duties” is “whether the officer is
acting within the scope of his employment, that is, whether
the officer’s actions fall within his agency’s overall mission,
in contrast to engaging in a personal frolic of his own.” The
district court added that the question was not “whether the
officer is abiding by laws and regulations in effect at the time
of the incident” or “whether the officer is performing a
function covered by his job description.” That instruction
was appropriate. 12 See United States v. Juvenile Female,
566 F.3d 943, 950 (9th Cir. 2009) (describing the test for

    11
      The statute further punishes those who assault federal officers “on
account of” their official duties, 18 U.S.C. § 111(a)(1), but the
Government has not relied on that clause here.

    12
        There was sufficient evidence at trial to support a finding that
Linde was performing his official duties. For example, Linde testified
that he was routinely tasked with assisting Border Patrol, and that he was
doing just that when he encountered Moreno.
22          UNITED STATES V. MORENO ORNELAS

whether an officer is engaged in an official duty under § 111
as “whether he is acting within the scope of what he is
employed to do, as distinguished from engaging in a
personal frolic of his own” (quoting United States v. Lopez,
710 F.2d 1071, 1074 (5th Cir. 1983))); accord United States
v. Hoy, 137 F.3d 726, 729 (2d Cir. 1998).

                               C.

    Moreno’s final argument on appeal is that the district
court abused its discretion by excluding expert testimony he
belatedly sought to introduce at trial. We disagree.

                               1.

    On February 3, 2015—five months after trial counsel
was appointed to represent Moreno—the district court
granted Moreno’s third request for a continuance and pushed
the trial date from February 18 to April 7. In the same order,
the district court set a clear deadline for the parties to request
disclosures mandated by Federal Rule of Criminal Procedure
16—requiring that such requests be made within two weeks
and that the parties respond within seven days of receiving
one. As relevant here, Rule 16 requires a defendant to
reciprocate government disclosure of expert witnesses by
disclosing, “at the government’s request . . . . a written
summary” of any expert “testimony that the defendant
intends to use” at trial. Fed. R. Crim. P. 16(b)(1)(C)(i). Rule
16 further instructs that “[if] a party fails to comply with this
rule,” the district court may “prohibit that party from
introducing the undisclosed evidence.” Fed. R. Crim. P.
16(d)(2)(C).

   On February 13, the Government represented that it had
complied with a request from Moreno for disclosure of the
Government’s expert witnesses. It then requested reciprocal
           UNITED STATES V. MORENO ORNELAS                   23

disclosure, which under Rule 16 had to include the defense
expert “witness’s opinions, the bases and reasons for those
opinions, and the witness’s qualifications.” Fed. R. Crim. P.
16(b)(1)(C). Seven days came and went. Then two more
months went by, until on April 16—two weeks after the trial
date was pushed from April 7 to June 23—Moreno informed
the Government at a status conference that an expert named
Weaver Barkman “would be potentially assisting the
defense.” Moreno provided no further information.

     On June 1—six weeks after the status conference and
three weeks before trial—Moreno filed a formal notice that
he intended to call Barkman as an expert witness. Moreno’s
filing listed Barkman’s qualifications and stated that
Barkman would likely “provide more information regarding
the Glock pistol fired in this case.” The filing represented
that trial counsel could not yet provide a summary of
Barkman’s proposed testimony because Barkman had “not
yet finished viewing the evidence in th[e] case.” A week
later, Moreno filed his sixth request for a continuance, in part
to allow Barkman time to finish his report. The district court
denied the request the next day.

    On June 18—four months after Moreno’s expert
disclosures were due and a mere five days before trial—the
Government finally received Barkman’s expert report. The
report indicated that Barkman would testify that the
available physical evidence suggested that Linde never
holstered his gun, the gun could have slipped out of the
holster accidentally, several shots were accidentally fired,
and no shot was fired near Linde’s head.

    The Government moved to exclude Barkman’s
testimony.    It argued that Moreno’s disclosure was
“incredibly untimely” and, in the alternative, that Barkman’s
testimony would be inadmissible for evidentiary reasons.
24           UNITED STATES V. MORENO ORNELAS

The district court granted the Government’s motion “based
on [a] lack of timeliness and failure to follow the Court’s
orders,” explaining that the “whole idea” of setting a
deadline was for the parties to “disclose expert opinions
early enough . . . so the other side c[ould] have an
opportunity to evaluate those opinions and hire his or her
own expert prior to trial to meet those opinions.” 13

                                   2.

     Relying on his constitutional right to present witnesses
in his own defense, Moreno argues that the district court
abused its discretion in imposing the “sanction” of excluding
Barkman’s expert testimony. Such a sanction, he maintains,
is inappropriate for a discovery violation unless the violation
was found to be willful and blatant, and the district court
made no such findings here.

    Like the government in United States v. W.R. Grace,
526 F.3d 499 (9th Cir. 2008) (en banc), Moreno
“mischaracterizes the enforcement order[] as an
exclusionary ‘sanction.’” Id. at 514. The exclusion here, as
in W.R. Grace, was no sanction. It “simply enforce[d] the
[district court’s] earlier pretrial order” setting disclosure
deadlines. Id. And so far as we can tell from the record, as
well as from Moreno’s own representations on appeal,
Moreno “did not object to the disclosure deadline[] set by
the [district court’s pretrial] order.” Id. The exclusion thus
“could hardly have been a surprise.” Id. Moreover, in view
of Moreno’s “acquiescence” to the disclosure deadline when
it was set, along with the several months of trial preparation

     13
        Having excluded the expert testimony on timeliness grounds, the
district court did not rule on the Government’s evidentiary objections to
the testimony.
             UNITED STATES V. MORENO ORNELAS                           25

that had already occurred by that point, we see nothing
unreasonable about the deadline. See id.

    Moreno is correct that we distinguished between the
government and criminal defendants in W.R. Grace. But we
did so with respect to the appropriate standard for excluding
a witness as a “sanction”—an issue we discussed while
affirming the district court’s exclusion order on the
alternative ground that the exclusion was appropriate even if
viewed as a sanction. See id. at 514–15. We did not
similarly cabin our earlier, independent holding that simply
enforcing reasonable deadlines established in a pretrial order
is not a sanction in the first place. 14 The cases cited by Judge
Zilly in dissent do not hold otherwise. 15 W.R. Grace
therefore controls.


    14
        It also makes no difference that we did not decide in W.R. Grace
“whether or to what extent the defense can be compelled to disclose a
list of its witnesses before trial.” 526 F.3d at 509 n.7. That footnote,
read in context, clearly referred to disclosure of a list of nonexpert
witnesses, which Rule 16 requires of neither party. See id. at 510
(holding that, “[a]lthough Rule 16 does not expressly mandate the
disclosure of nonexpert witnesses,” district courts may nevertheless
“order the government to produce a list of such witnesses as a matter of
its discretion”). The present case, by contrast, concerns expert witnesses,
which Rule 16 expressly requires both parties to disclose under these
circumstances. See Fed. R. Crim. P. 16(a)(1)(G), (b)(1)(C).
    15
       In United States v. Verduzco, 373 F.3d 1022 (9th Cir. 2004), we
did not even reach the question whether it would have been an abuse of
discretion to exclude the expert’s testimony because of a minor
discovery violation, as we resolved the issue on Rule 403 grounds
instead. Id. at 1033 (stating only that there “might” have been an abuse
of discretion if the district court had excluded the expert solely on
discovery violation grounds). In United States v. Peters, 937 F.2d 1422
(9th Cir. 1991), the government conceded that, unlike here, “it never
sought an order for an exchange of witness lists prior to trial, nor was
26           UNITED STATES V. MORENO ORNELAS

    Moreno counters that the district court’s order required
him to disclose only expert testimony that he “intend[ed]” to
use at trial, and that he had not yet intended to call Barkman
when the disclosure deadline came and went. This argument
is meritless, for it would render deadlines meaningless. By
requiring the parties to disclose by a certain date expert
witnesses whom they intended to call at trial, the district
court required the parties to figure out before that date whom
they wanted to call.

    United States v. Schwartz, 857 F.2d 655 (9th Cir. 1988),
is not to the contrary. In Schwartz, a fellow defendant
flipped at the eleventh hour, and the government sought to
call him as a cooperating witness at trial. Id. at 656.
Although the newly minted cooperator had not been

there any agreement between counsel regarding the exchange of such
lists.” Id. at 1424-25. In the absence of such a request, the defendant
did not actually have any affirmative disclosure obligation under Rule
16 that the district court could have sought to enforce. Fed. R. Crim. P.
16(b)(1)(C) (requiring that the government make a disclosure request to
the defendant). Our holding that the sanction was impermissible because
no willful and blatant discovery violations had occurred was a response
to the government’s alternative argument that, even if the defendant’s
attorney did not commit a clear-cut violation of any discovery rule, the
witness was properly excluded because defense counsel deliberately
failed to divulge the existence of the expert witness to get an advantage
at trial. Peters, 937 F.2d at 1426. And, in United States v. Finley,
301 F.3d 1000 (9th Cir. 2002), the issue was not timely disclosure but
rather an alleged divergence between the disclosure that had been timely
made and what the expert actually testified to at trial. Id. at 1018.
Moreover, in Finley, the expert witness presented the only evidence of
Finley’s diagnosed mental disorder, and the district court’s exclusion of
the entirety of the expert testimony—not just the arguably undisclosed
part—left Finley unable to present his main defense. Id. Even assuming
the expert testimony excluded in this case was relevant to and supportive
of Moreno’s self-defense theory, it was not essential to that theory to
anywhere near the extent the expert testimony in Finley was.
            UNITED STATES V. MORENO ORNELAS                     27

disclosed as a witness on time, we held that he could still
testify. Id. at 659–60. We did reason that “the government
could not then have intended to call” the cooperator when
the district court’s disclosure deadline came and went. Id. at
659. But that was because the cooperator “had an absolute
privilege not to testify,” leaving the government powerless
to disclose him as a witness it intended to call at trial. Id.
(citing U.S. Const. amend. V). Expert witnesses, in contrast,
have no such privilege and, relatedly, are not normally being
prosecuted in the very criminal case for which they would
be called to testify. Moreno thus had full control over his
intent to call an expert witness. Because he did not come
close to meeting the district court’s reasonable disclosure
deadline, Moreno was properly left to proceed without his
desired expert testimony.

                               III.

   For the foregoing reasons, we reverse Moreno’s
convictions for attempted robbery and remand for a new trial
on those charges.       We affirm Moreno’s remaining
convictions.

  AFFIRMED in part, REVERSED in part, and
REMANDED.



THOMAS, Chief Judge, concurring in Parts I, II(A)(1) and
(2), and II(B) and (C); and dissenting from Part II(A)(3).

     When the defendant requests a specific jury instruction,
but fails to object when the district court instructs the jury
differently, we may only review for plain error. Jones v.
United States, 527 U.S. 373, 388 (1999). Although Moreno
initially requested that the district court instruct the jury that,
28         UNITED STATES V. MORENO ORNELAS

with respect to the two attempted robbery charges under
18 U.S.C. § 2112, the Government must prove he acted with
the specific “intent to steal,” Moreno failed to object to the
instructions he now challenges in the district court. As such,
our review is a limited review for plain error. Id.; see also
Fed. R. Crim. P. 52(b). Under this difficult standard,
Moreno fails to demonstrate that any instructional error was
not harmless in light of his post-arrest admissions.
Accordingly, I respectfully dissent from the majority’s
reversal of Moreno’s two attempted robbery convictions.
The failure to preserve a claim ordinarily prevents a party
from raising it on appeal, but Rule 52(b) “recognizes a
limited exception to that preclusion” for plain errors.
Puckett v. United States, 556 U.S. 129, 135 (2009). “[T]he
authority created by Rule 52(b) is circumscribed.” United
States v. Olano, 507 U.S. 725, 732 (1993). Plain error
review under Rule 52(b) involves a four-pronged process,
and “[m]eeting all four prongs is difficult.” Puckett,
556 U.S. at 135. First, “there must be an error or defect . . .
that has not been intentionally relinquished or abandoned.”
Id. “Second, the legal error must be clear or obvious.” Id.
“Third, the error must have affected the appellant’s
substantial rights.” Id. To affect the appellant’s substantial
rights, the appellant must demonstrate the error “‘affected
the outcome of the district court proceedings.’” Id. (quoting
Olano, 507 U.S. at 734). And finally, even if the appellant
establishes the first three prongs, our discretion to remedy
the error “ought to be exercised only if the error ‘seriously
affect[s] the fairness, integrity or public reputation of
judicial proceedings.’” Id. (quoting Olano, 507 U.S. at 736).
As such, Rule 52(b) “leaves the decision to correct the
forfeited error within the sound discretion” of this Court,
Olano, 507 U.S. at 732–34, and the discretion conferred on
us by Rule 52(b) should be exercised only where a
“‘miscarriage of justice would otherwise result,’” United
           UNITED STATES V. MORENO ORNELAS                    29

States v. Young, 470 U.S. 1, 15 (1985) (quoting United States
v. Frady, 456 U.S. 152, 163 n.14 (1982)).

    Even if there were plain instructional error as to the
robbery counts, I respectfully disagree that it affected
Moreno’s substantial rights and seriously undermined the
fairness and integrity of the proceedings. Any instructional
error was harmless in light of the record evidence. The
evidence introduced at trial, in conjunction with Moreno’s
post-arrest statements, demonstrates that he possessed the
specific intent to permanently deprive the officer of both the
gun and the vehicle, and the failure to instruct the jury
regarding that intent did not affect the outcome of the district
court proceedings. With respect to the officer’s gun, Moreno
admitted that at the time he attempted to disarm the officer,
he intended to gain possession of the gun and take the gun
so that the officer could not use it against him. Although
Moreno claimed that he went after the gun to avoid being
shot, Moreno further admitted that he intended to take the
gun from the officer, and throw it out somewhere in the
desert so that the officer could not use the gun against him,
effectively depriving the officer of the gun. Specifically,
Moreno admitted that in going after the officer’s gun, he
“wanted to take the gun from [the officer],” and once he
gained possession of the gun, he intended to “throw it out
into the desert” so that he would not be shot by the officer.
The logical implication of Moreno’s admission is that in
order to avoid being shot, Moreno intended to permanently
deprive the officer, and the government, of the gun by taking
it and throwing it out in the desert in such a way that the
officer would not able to recover it. Moreno’s admissions
evidence more than an intent to momentarily take the gun
from the officer. In fact, Moreno’s claimed motive to avoid
being shot, when viewed in conjunction with his admitted
intent to take the gun and throw it in the desert, establish that
30         UNITED STATES V. MORENO ORNELAS

he possessed the requisite intent to permanently deprive the
officer, and the government, of the gun. The failure to
instruct the jury on that element therefore did not have an
impact on the ultimate conviction because Moreno freely
admitted that he possessed the requisite intent. As such,
Moreno failed to establish plain error.

    With respect to the officer’s vehicle, Moreno’s
admissions, when coupled with his actions, once again
establish the requisite intent to sustain the attempted robbery
conviction. In the post-arrest interview, Moreno admitted
that his overall intent in getting in the officer’s vehicle was
to use the vehicle in his escape. Specifically, at the time he
got inside the officer’s vehicle, and just before he put the
vehicle in gear, Moreno admitted he intended to “tak[e] off”
in the vehicle in order to “get to the border.” Further,
following the sheriff’s paraphrase of his statement, Moreno
agreed that when he initially got in the vehicle, “his original
intentions” were to “take off” and “just keep going.”
Moreno clarified, he “was going to go all the way to the
border,” and that he “was going to take the car and go in it
all the way to the border.” Although ultimately, once he
arrived at the border, Moreno intended to “jump and flee to
[Mexico]” and necessarily “leave the truck at the port of
entry,” Moreno’s admissions establish that at the time he
attempted to drive off in the officer’s vehicle, he had formed
the requisite intent to permanently deprive the officer, and
the government, of it.

    Further, the fact that the overall incident took place near
the border does not negate Moreno’s admitted intent to
deprive the officer and the government of the vehicle.
Moreno stated that when he got into the driver’s seat of the
officer’s vehicle, he intended to flee, and that he was “just
[going to] keep going.” Although Moreno stated that if he
           UNITED STATES V. MORENO ORNELAS                  31

had been able to drive off in the vehicle, he would have left
the vehicle at the port of entry, that does not negate his
original admitted intent to take off in the vehicle, to just
“keep going,” and to deprive the officer of the use of the
vehicle in such a way that the officer would not be able to
recover the vehicle or use it to apprehend Moreno. Even
though the overall incident took place near the border, the
record does not indicate that Moreno intended to relinquish
the vehicle at the border, or that he intended for the
government to regain possession of the vehicle. Aside from
the proximity to the border, there is no indication that
Moreno intended for his taking of the vehicle to be only
temporary, or for the government to regain possession of the
vehicle.

    Because the evidence was sufficient to establish the
requisite intent, any instructional error was harmless, and
certainly did not constitute plain error as to the robbery
counts. I join the majority in all other respects.

   For these reasons, I respectfully dissent, in part.



ZILLY, District Judge, dissenting from Part II(C):

   In the criminal context, courts have upheld the “drastic
remedy” of excluding a witness only in cases involving
“willful and blatant” discovery violations. Taylor v. Illinois,
484 U.S. 400, 416 (1988); United States v. Peters, 937 F.2d
1422, 1426 (9th Cir. 1991). In this case, the district court
made no finding that Moreno engaged in willful and blatant
conduct. Rather, in the district court’s own words, Moreno’s
expert witness was excluded “based on lack of timeliness
and failure to follow the Court’s order.” The district court’s
exclusion of Moreno’s expert witness (Weaver Barkman),
32         UNITED STATES V. MORENO ORNELAS

without any finding of willful or blatant conduct, violated
Moreno’s fundamental right to due process. This exclusion
of the expert witness requires reversal and a new trial on all
appealed counts. United States v. Finley, 301 F.3d 1000,
1018 (9th Cir. 2002).

    The Supreme Court has recognized that the right to
present evidence in one’s own defense is a fundamental
constitutional right. Rock v. Arkansas, 483 U.S. 44, 52
(1987). The Supreme Court considered the intersection of
this right and discovery sanctions in Taylor, and held that
“few rights are more fundamental than that of an accused to
present witnesses in his own defense.” Taylor, 484 U.S. at
408. Taylor holds that exclusion is possible only if the
violation was “willful and blatant.” Id. at 416–17.

    The majority wrongfully attempts to avoid this well-
established law by reasoning that Barkman’s exclusion “was
no sanction,” but rather simply enforcement of an earlier
pretrial order. The district court, however, imposed a
“sanction,” plain and simple. A discovery sanction is
defined as: “[a] penalty levied by a court against a party or
attorney who … inexcusably fails to comply with … the
court’s discovery orders.” Black’s Law Dictionary 1542
(10th ed. 2014). Numerous Ninth Circuit opinions have
characterized the exclusion of a witness for violating a
discovery or scheduling order as a “sanction.” See United
States v. Verduzco, 373 F.3d 1022, 1033–35 (9th Cir. 2004)
(observing that, if the discovery violation at issue had been
the sole ground for excluding the defense expert, a Ph.D.
sociologist, the district court would have abused its
discretion in imposing such sanction, but affirming on the
basis of the district court’s additional Rule 403 analysis);
United States v. Peters, 937 F.2d 1422, 1426 (9th Cir. 1991)
(holding that, with respect to a forensic pathologist proffered
             UNITED STATES V. MORENO ORNELAS                           33

as an expert by the defendant in an allegedly untimely
manner, “no willful and blatant discovery violations
occurred” and “application of the exclusionary sanction is
impermissible”); see also Finley, 301 F.3d at 1016–18 (9th
Cir. 2002) (reversing the exclusion of the defendant’s expert
witness, a licensed clinical psychologist, reasoning that,
even if a discovery violation occurred, the “severe sanction
of total exclusion of the testimony was disproportionate to
the alleged harm suffered by the government.”). 1

     The majority nevertheless asserts that Moreno
“mischaracterizes the enforcement order as an exclusionary
‘sanction’” relying on United States v. W.R. Grace, 526 F.3d
499 (9th Cir. 2008) (en banc). W.R. Grace, however, does
not support the majority, but rather Moreno’s right to a new
trial. In W.R. Grace, the district court had excluded
undisclosed witnesses from the government’s case-in-chief. 2
Ironically, in W.R. Grace, the government, rather than the
defendant, argued that the exclusion of witnesses can be
imposed as a sanction only when the district court finds that
the violation was “willful and motivated by a desire to obtain
a tactical advantage.” Id. at 514–15 (quoting Finley,
301 F.3d at 1018). Because the district court in W.R. Grace
made no such finding, the government contended the
exclusion order could not stand. W.R. Grace rejected the

    1
      The majority’s attempt to distinguish these cases is unconvincing.
Each decision stands for the proposition that the exclusion of a witness
on the basis of a discovery or scheduling order violation constitutes a
sanction. The majority does not suggest otherwise.

    2
       In W.R. Grace, the district court did not exclude any witnesses, but
rather precluded the government from identifying additional witnesses
after the deadline. Thus, W.R. Grace involved only the enforcement of
a scheduling order, as opposed to sanctions for a discovery violation.
34           UNITED STATES V. MORENO ORNELAS

government’s argument, which relied on Finley, observing
that “Finley, . . . like Taylor, involved a defendant’s right to
present evidence, not the government’s, and has no bearing
here.” Id. at 515 (emphasis added). W.R. Grace explicitly
recognized that the government and a criminal defendant are
subject to different standards, 3 and its ruling, which was
unfavorable to the government, had no effect on the
doctrines applicable to the exclusion of criminal defense
witnesses.

    The majority’s conclusion that Moreno was “properly
left to proceed without his desired expert testimony”
completely ignores Supreme Court jurisprudence. Even if
Moreno violated the applicable scheduling order, the district
court improperly precluded the defense expert without
making the requisite finding of willful or blatant conduct.
As a result, the district court never reached the merits of the
government’s evidentiary objections or conducted a Daubert
hearing. Any skepticism about the proffered evidence that
stems from an undeveloped record is not within the province
of an appellate court to consider.

    I would reverse Moreno’s convictions on all counts,
except for the unappealed illegal re-entry count, because his
defense expert was excluded in violation of his constitutional
rights, and I therefore respectfully dissent. I concur,
however, in the result reached in Part II(A) of the majority
opinion, reversing Moreno’s convictions for attempted
robbery of the gun and the truck based on instructional error.

     3
      The majority’s suggestion that Verduzco, Peters, and Finley do not
contradict W.R. Grace is analytically flawed because (i) all three cases
predate W.R. Grace, and (ii) all three cases involve a criminal
defendant’s right to call witnesses, which was not even at issue in W.R.
Grace.
