and Submitted September 12, 2016 San Francisco, California
from the United States District Court for the District of
Arizona, D.C. No. 4:14-cr-00772-RCC-CRP-1 Raner C. Collins,
Chief District Judge, Presiding
L. Jacobs (argued), Law Offices of Henry Jacobs PLLC, Tucson,
Arizona, for Defendant-Appellant.
Anderson McCallum (argued) and Elizabeth Berenguer, Assistant
United States Attorneys; Robert L. Miskell, Appellate Chief;
John S. Leonardo, United States Attorney, United States
Attorney's Office, Tucson, Arizona; for
Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges,
and William K. Sessions, III, [*] District Judge.
panel vacated a conviction for attempted illegal reentry
under 8 U.S.C. § 1326 and remanded for entry of a
judgment of acquittal.
panel held that the district court committed plain error
affecting the defendant's substantial rights by failing
to instruct the jury that in order to be found guilty of
attempted illegal reentry the defendant must have had the
specific intent to reenter the United States free from
panel held that even if the jury applied the correct legal
standard, no rational trier of fact could have found the
essential elements of attempted illegal reentry beyond a
reasonable doubt. The panel wrote that if properly instructed
on the official restraint doctrine, no rational jury could
have concluded beyond a reasonable doubt that the defendant
was free from official restraint in the pre-inspection area,
or that he intended to be simply by entering that area. The
panel wrote that there is likewise insufficient evidence in
the record to support the defendant's guilt on the theory
that he intended to go beyond the pre-inspection area so as
to be free to go at large and at will within the United
SESSIONS, District Judge:
Rosario Vazquez-Hernandez appeals his conviction for
attempted illegal reentry under 8 U.S.C. § 1326 on the
ground that there was insufficient evidence to support his
conviction. Vazquez-Hernandez also notes that the district
court's instruction at trial failed to properly inform
the jury of the essential elements of the offense.
lack of an instruction to the jury that Vazquez-Hernandez had
to have a conscious desire to reenter the United States free
from official restraint to be found guilty of the crime of
attempted illegal reentry was plain error. Moreover, we
conclude that even if the jury applied the correct legal
standard, the trial record provides insufficient evidence to
allow any rational trier of fact to find the essential
elements of attempted illegal reentry beyond a reasonable
doubt. Therefore, we vacate Vazquez-Hernandez's
conviction and remand to the district court to enter a
judgment of acquittal.
to his conviction, Vazquez-Hernandez, a citizen of Mexico,
frequently earned money washing car windows at the Mariposa
port of entry into the United States in Nogales, Arizona. The
U.S. inspection station at the Mariposa port of entry lies on
U.S. territory, about 100 yards north of the border with
Mexico. As a result, the United States invites foreign
nationals and U.S. citizens traveling in vehicles to enter
U.S. territory prior to their inspection by immigration
officials. Pedestrians are invited to enter the
pre-inspection area through a separate, designated lane, and
are generally not permitted in the vehicle lanes for safety
reasons. U.S. Border Patrol agents have on occasion, however,
permitted individuals they presume to be U.S. citizens to
enter the northbound vehicle lanes on foot. Although also not
officially permitted, vendors and window washers commonly
enter the pre-inspection area from Mexico on foot, touting
their wares and services to stopped vehicles.
pre-inspection area is walled off on all sides except at the
U.S. border with Mexico and at the Mexican and U.S.
inspection points, and is monitored by hundreds of U.S.
government cameras. United States "outbound
operations" officers, armed with automatic rifles,
monitor southbound lanes north of the Mexican
government's inspection points. Law enforcement agents
stationed at the border sometimes screen individuals entering
the pre-inspection area for those who could pose a safety
threat and prevent them from entering the pre-inspection
to this intermittent screening and control, foreign nationals
enter the pre-inspection area on U.S. territory on a daily
basis, either in vehicles or on foot. Occasionally, U.S.
Border Patrol agents attempt to arrest and detain individuals
present on foot in the pre-inspection area who the agents
believe, based on their behavior and appearance, do not
"have legal status" in the United States, without
inquiring about their intent to go past the port of entry.
When approached by Border Patrol agents, vendors and other
individuals who do not intend to enter the United States
beyond the pre-inspection area often flee the pre-inspection
area and return to the Mexican side of the border.
Pedestrians attempting to enter the United States without
inspection sometimes run up the southbound lanes, bypassing
the U.S. inspection points.
his arrest and conviction in 2014, Vazquez-Hernandez was
previously removed from the United States three times, and
was once previously convicted of illegal reentry. He was
first removed in 2005, before he began his window-washing
work. Since he began working at the Mariposa port of entry,
he has twice been arrested in the pre-inspection area and
subsequently deported, in 2010 and 2013. After his 2010
arrest, he was charged with illegal reentry and pled guilty
to the offense.
the time he was arrested in 2014, Vazquez-Hernandez entered
the pre-inspection area at the Mariposa port of entry to wash
windows almost every day, including on the weekends and in
the afternoons and evenings. On April 5, 2014, two Border
Patrol agents, Agent Adam Erfert and Joshua Thomas, saw
Vazquez-Hernandez on surveillance cameras. The agents
testified at trial that they became suspicious of
Vazquez-Hernandez's intentions because he appeared to be
looking around and monitoring his environment, and because of
his attentiveness and proximity to the southbound vehicle
lanes. The two agents approached Vazquez-Hernandez and,
despite Vazquez-Hernandez's efforts to evade the
agents' grasp, arrested him. ...