U.S. v. Ambriz-Ambriz

• Decision Date: 10 November 2009
• Docket Number: No. 08-30431.,08-30431.
• Citation: 586 F.3d 719
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Jose Ines AMBRIZ-AMBRIZ, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

586 F.3d 719

UNITED STATES of America, Plaintiff-Appellee, v. Jose Ines AMBRIZ-AMBRIZ, Defendant-Appellant.

No. 08-30431.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 13, 2009.

Filed November 10, 2009.

Anthony R. Gallagher, Federal Defender, John Rhodes, Assistant Federal Defender (argued), Johnna Rizza, and Stephanie Deboer, Legal Interns, Federal Defenders of Montana, Missoula, MT, for the defendant-appellant.

William W. Mercer, United States Attorney, and Timothy J. Racicot, Assistant United States Attorney (argued), Missoula, MT, for the plaintiff-appellee.

Appeal from the United States District Court for the District of Montana, Donald W. Molloy, District Judge, Presiding. D.C. No. 9:08-CR-00023-DWM-1.

Before: RICHARD D. CUDAHY,^* Senior Circuit Judge, JOHNNIE B. RAWLINSON and CONSUELO M. CALLAHAN, Circuit Judges.

CALLAHAN, Circuit Judge:

Jose Ines Ambriz-Ambriz (Ambriz) challenges the jury instructions and his conviction of being a previously removed alien found in the United States in violation of 8 U.S.C. § 1326. He asserts that because he was detained at a port of entry he was entitled to a jury instruction addressing the official restraint doctrine. We conclude that because Ambriz had not legally left the United States on the date of his detention, and was not entering the United States from a foreign country, the official restraint doctrine is inapplicable, and we affirm his conviction and sentence.

I

Ambriz, a Mexican citizen, was convicted of an aggravated felony in 1980 and deported from the United States in 1985. Sometime thereafter, he reentered the United States without inspection or permission.

It appears that on February 28, 2008, Ambriz sought to travel by car from the United States to Canada, possibly for some medical procedure. In any event, the vehicle in which he was traveling with two other individuals was denied entry into Canada. As a result, the vehicle was forced to proceed back into the United States where it stopped for inspection at the Roosville Port of Entry.

A U.S. Customs and Border Patrol Agent requested that Ambriz produce some identification. Ambriz claimed to be a United States citizen and produced a California driver's license. The officer directed the driver of the vehicle to pull into a secondary inspection area for further investigation. When fingerprints and a record check revealed that Ambriz was a Mexican citizen and had been previously deported, he was arrested.

One of the officers responsible for transporting Ambriz from the port of entry to the Sheriff's Office in Missoula testified at trial that Ambriz confessed to his illegal presence in the United States. The officer testified that Ambriz "said something to the effect of `I'm tired of being illegal in your country and I'm tired of hiding.'" Ambriz did not object to the admission of this statement at trial.

II

Ambriz was indicted for illegal reentry in violation of 8 U.S.C. § 1326(a). Section 1326(a) states, in relevant part:

any alien who — (1) has been denied admission, excluded, deported, or removed or has departed the United States while an order of exclusion, deportation, or removal is outstanding, and thereafter (2) enters, attempts to enter, or is at any time found in, the United States . . . shall be fined under Title 18, or imprisoned not more than 2 years, or both.

(Emphasis added). Count I of the indictment, however, stated that Ambriz "was found to have reentered the United States without receiving permission from the Secretary of the Department of Homeland Security . . . to apply for re-entry, in violation of 8 U.S.C. § 1326(a) and (b)." (emphasis added and citation omitted).

At his jury trial, Ambriz objected to including the phrase "found to have reentered" in the jury instruction. Although the district court rejected Ambriz's proposed instruction, it agreed that the statute did not include the language "found to have reentered," and struck that language from the government's proposed elements instruction.

Ambriz then sought an instruction on the term "found in." Relying on our decisions in United States v. Zavala-Mendez, 411 F.3d 1116, 1121 (9th Cir.2005) and United States v. Cruz-Escoto, 476 F.3d 1081, 1085 (9th Cir.2007), he proffered the following instruction: "[t]he alien who crosses the border at a designated location and proceeds directly in the manner designated by the Government to the border station where he then presents himself to the authorities has not yet been found in the United States for purposes of 8 U.S.C. § 1326(a)."

The district court rejected the proposed instruction, noting that the facts of this case differed from the cited cases in which the individuals entered the United States from a foreign country and never gained access into the United States.¹ The judge gave the following instruction on Count I:

In order for the Defendant to be found guilty of the charge, the Government must prove each of the following elements beyond a reasonable doubt: First, that the Defendant is an alien; that is, not a United States citizen. Second, the Defendant was previously removed from the United States. Third, the Defendant was found in the United States without the written consent of the Attorney General of the United States or its successor, the Secretary of the Department of Homeland Security to apply for permission to reenter the United States.

Ambriz also sought a specific time and location instruction. He proposed an instruction stating that "[o]n or about February 28th, 2008, at Roosville, Flathead County in the State and District of Montana, the Defendant was found in the United States." The district court declined to use this language noting that there was similar language in the indictment and in another instruction, and commenting that counsel was free to address time and location in his closing argument.

Ambriz moved several times during trial for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29, arguing that the government had presented insufficient evidence for a reasonable jury to determine that he was "found in" the United States beyond a reasonable doubt. The judge denied the motions and the jury found Ambriz guilty on both counts.² The district court sentenced Ambriz to twenty-eight months in prison, followed by three years of supervised release. Ambriz filed a timely notice of appeal.

III

Mr. Ambriz's primary contention on appeal is that he was not "found in" the United States because he was apprehended at a port of entry and thus was under "official restraint" and had not officially entered the United States. This argument misconstrues the official restraint doctrine, which, properly understood, pertains to an individual entering the United States from a foreign country, and thus is inapplicable to Mr. Ambriz's situation.

The official restraint doctrine has been applied to two situations. First, it applies where individuals "fly to the United States from some other country, get out of the airplane at the airport and proceed directly to the customs inspection counter where they present themselves." Zavala-Mendez, 411 F.3d at 1118. Although we have not considered such a case, "[o]ur sister circuits agree that in such a case, even if the person is a previously-deported alien without permission to reenter, he cannot be convicted of being `found in' the United States (as opposed to attempting to enter)." Id. (citing United States v. Angeles-Mascote, 206 F.3d 529, 530-32 (5th Cir. 2000) and United States v. Canals-Jimenez, 943 F.2d 1284, 1286-89 (11th Cir. 1991)).

We have, however, addressed the second situation: where an alien attempts to sneak across the border but is observed and ultimately arrested by the authorities. United States v. Bello-Bahena, 411 F.3d 1083, 1087 (9th Cir.2005). ("It is well established in this circuit that official restraint includes constant governmental observation or surveillance from the moment of entry, and that those who are under such surveillance for the entire time they are present cannot be found to have entered the United States for purposes of § 1326.").

This case presents neither of these situations because the factual predicate for those situations is not present: Ambriz was not attempting to enter the United States.³ He was not flying into the country or attempting to cross the border. Rather, as the evidence at trial indicated, he had been in the United States illegally for some time when he sought to leave the United States for Canada and he only arrived at a port of entry because Canada denied him admission. Although Ambriz may have technically traveled onto Canadian land from the United States, he was never legally in Canada, and thus, when he appeared at the port of entry, he was not entering the United States from a foreign country.

Indeed, the rationale underlying the official restraint doctrine compels our focus on Ambriz's "legal" status. An alien who gets off an airplane at an airport or who sneaks across the border is technically on United States land. The official restraint doctrine, however, distinguishes between a person's physical presence and legal presence in the United States. See Angeles-Mascote, 206 F.3d at 531 (noting that "`actual entry' has been found by most courts to require both physical presence in the country as well as freedom from official restraint"). This focus supports our determination that despite Ambriz's physical trespass into Canada from the United States, he was never legally in Canada on February 28, 2008, and thus was not entering the United States from a foreign country.

Accordingly, we reject Ambriz's contention that the district court erred in denying his motion for judgment of acquittal which we review de novo. Bello-Bahena, 411 F.3d at 1087. In doing so, "[w]e must view the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the...