United States of America v. Jonathan Mota

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
JONATHAN MOTA,
Defendant-Appellant.
No. 16-10468
D.C. No.
4:13-cr-00093-JST-1
MEMORANDUM*
Appeal from the United States District Court
for the Northern District of California
Jon S. Tigar, District Judge, Presiding
Submitted February 13, 2019**
San Francisco, California
Before: McKEOWN, W. FLETCHER, and MURGUIA, Circuit Judges.
Jonathan Mota appeals from his convictions under 18 U.S.C. §§ 1951(a),
924(c), and 924(j)(1). We have jurisdiction under 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742, and affirm in part and reverse in part.
The district court did not abuse its discretion by restricting Mota’s access to
* This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
** The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
FILED
FEB 20 2019
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS

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a pen during pretrial proceedings. See United States v. Shryock, 342 F.3d 948,
974–75 (9th Cir. 2003) (reviewing trial court’s security measures for abuse of
discretion). The district court appropriately based this security measure on the
charges against Mota and consultation with the United States Marshals Service
(“USMS”). See id. at 975 (finding “allegations of extraordinarily violent crimes”
an appropriate basis for security measures); United States v. Collins, 109 F.3d
1413, 1418 (9th Cir. 1997) (finding advice from the USMS an appropriate basis for
security measures).
Nor did failing to order the government to give more advance notice of its
witnesses and evidence violate Mota’s right to self-representation. Even if the lack
of notice, combined with restrictions on Mota’s access to trial materials while
incarcerated, affected his ability to prepare a defense, we have previously upheld
comparable restrictions. See United States v. Robinson, 913 F.2d 712, 717–18 (9th
Cir. 1990).
Even if the jury instructions for Count One permitted the jury to convict for
Hobbs Act extortion, rather than robbery (the conduct charged in the indictment),
Mota’s constructive amendment argument fails on plain error review. See United
States v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006) (reviewing constructive
amendment claim not raised before the district court for plain error). The jury
could not have found that Forrest Seagrave consented to Mota taking property,

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when Seagrave was attempting to stop the crime up until the moment he was
fatally shot. United States v. Ward, 747 F.3d 1184, 1191 (9th Cir. 2014) (noting
that constructive amendment claims fail “when no evidence was introduced at trial
that would enable the jury to convict the defendant for conduct with which he was
not charged.”). The jury instructions for Count Three did not constructively amend
the indictment, because the indictment did not specify that the murder being
charged was felony murder.
Ninth Circuit precedent forecloses Mota’s argument that the Hobbs Act as
applied in this case violates the Commerce Clause. United States v. Atcheson, 94
F.3d 1237, 1242 (9th Cir. 1996). Taylor v. United States, 136 S. Ct. 2074 (2016),
does not undermine this conclusion, because unlike this case and Atcheson, Taylor
dealt with purely intrastate activity. See Taylor, 136 S. Ct. at 2078–79. We have
also previously rejected the argument that the Hobbs Act requires more than “proof
of a probable or potential impact on interstate commerce.” United States v. Lynch,
437 F.3d 902, 909 (9th Cir. 2006) (internal quotation marks omitted).
Because conviction under 18 U.S.C. § 924(j)(1) requires proof the defendant
also violated 18 U.S.C. § 924(c), Mota’s conviction for both offenses is
multiplicitous. United States v. Davenport, 519 F.3d 940, 943 (9th Cir. 2008).
We therefore remand with instructions to vacate Mota’s conviction and
sentence on Count Two, the lesser charge. United States v. Jose, 425 F.3d 1237,

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1247 (9th Cir. 2005) (when conviction on a lesser-included offense violates the
Double Jeopardy Clause, district court should vacate the sentence and conviction
on the lesser offense). We affirm in all other respects.
AFFIRMED in part, VACATED in part, and REMANDED.

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