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United States v. Vazquez-Hernandez

United States Court of Appeals, Ninth Circuit

March 3, 2017

United States of America, Plaintiff-Appellee,
v.
Rosario Vazquez-Hernandez, AKA Jose Alfredo Jimenez-Valdez, Defendant-Appellant.

          Argued and Submitted September 12, 2016 San Francisco, California

         Appeal 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

          Henry L. Jacobs (argued), Law Offices of Henry Jacobs PLLC, Tucson, Arizona, for Defendant-Appellant.

          Erica 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 Plaintiff-Appellee.

          Before: Ronald M. Gould and Marsha S. Berzon, Circuit Judges, and William K. Sessions, III, [*] District Judge.

         SUMMARY[**]

         Criminal Law

         The panel vacated a conviction for attempted illegal reentry under 8 U.S.C. § 1326 and remanded for entry of a judgment of acquittal.

         The 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 official restraint.

         The 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 States.

          OPINION

          SESSIONS, District Judge:

         Defendant-appellant 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.

         The 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.

         I. Background

         Prior 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.

         The 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 area.

         Subject 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.

         Before 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.

         Around 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. ...


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