U.S. v. Bello-Bahena, 04-50013.

• Decision Date: 15 June 2005
• Docket Number: No. 04-50155.,No. 04-50013.,04-50013.,04-50155.
• Citation: 411 F.3d 1083
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Carmelo BELLO-BAHENA, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Carmelo Bello-Bahena, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

411 F.3d 1083

UNITED STATES of America, Plaintiff-Appellee, v. Carmelo BELLO-BAHENA, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Carmelo Bello-Bahena, Defendant-Appellant.

No. 04-50013.

No. 04-50155.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted October 6, 2004.

Filed June 15, 2005.

COPYRIGHT MATERIAL OMITTED

Ramzi G. Nasser, Vincent J. Brunkow, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney, San Diego, CA; Roger W. Haines, Jr., Assistant U.S. Attorney, Chief, Appellate Section, Criminal Division, San Diego, CA; Randy K. Jones, Assistant U.S. Attorney, San Diego, CA; Mark R. Rehe, Assistant U.S. Attorney, San Diego, CA, for the plaintiff-appellee.

Appeals from the United States District Court for the Southern District of California; Dana M. Sabraw and Gordon Thompson, District Judges, Presiding. D.C. Nos. CR-03-01462-DMS, CR-02-03377-GT.

Before: PREGERSON, TASHIMA, and PAEZ, Circuit Judges.

PAEZ, Circuit Judge:

Carmelo Bello-Bahena ("Bello-Bahena") appeals his conviction and sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326(a).¹ Bello-Bahena argues that 1) the district court erroneously denied his motion for judgment of acquittal because there was insufficient evidence to conclude that he was free from official restraint, 2) the district court erred in rejecting Bello-Bahena's proposed jury instruction regarding official restraint, and 3) the district court erred in refusing to dismiss the indictment for failure to allege certain elements of the offense. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and remand for a new trial.²

I.

On March 6, 2003, United States Border Patrol Agent Esteban Rodriguez was performing line watch duties in Hagen's Pond, a desolate area near the United States/Mexico border. At about 3:00 a.m., Agent Rodriguez received a radio alert from Agent Bruce Drake, who was operating a "night scope."³ Drake told Rodriguez that he had observed a group of people heading north in the area. Drake then guided Rodriguez and two other agents to a location approximately one mile north of the border, where Bello-Bahena was hiding in some brush. In response to questioning by Agent Rodriguez, Bello-Bahena stated that he was a Mexican citizen and did not have documents to be in the United States. Bello-Bahena was arrested and transported to the Campo Border Patrol Station for processing.

The government filed an indictment charging Bello-Bahena with being a deported alien "found in" the United States in violation of 8 U.S.C. § 1326(a). Bello-Bahena entered a not guilty plea. Prior to trial, Bello-Bahena moved to dismiss the indictment for failure to allege that he 1) voluntarily entered the United States, 2) was inspected and admitted by an immigration officer or actually and intentionally evaded inspection at the nearest inspection point, and 3) knew that he was in the United States. The district court denied the motion.

At trial, Agent Rodriguez testified that Agent Drake had detected Bello-Bahena with his scope and that Drake guided Rodriguez to Bello-Bahena's location. Agent Rodriguez stated that Bello-Bahena was under constant surveillance by Agent Drake from the time Drake notified Rodriguez of Bello-Bahena's presence until his apprehension, but Rodriguez testified that he had "no idea" when Drake first saw Bello-Bahena.

At the close of the government's evidence, Bello-Bahena moved for a judgment of acquittal pursuant to Federal Rule of Criminal Procedure 29. The district court denied the motion.

Bello-Bahena requested a jury instruction explaining that a defendant may not be convicted of being found in the United States in violation of 8 U.S.C. § 1326 if he was under "official restraint" from the moment he crossed the border, and explaining that official restraint includes constant surveillance by border agents. In support of the proposed instruction, defense counsel pointed to Agent Rodriguez's testimony that Bello-Bahena was under constant surveillance up to the time of his arrest. The prosecution objected to the instruction on the ground that no evidence showed that Bello-Bahena was observed as he crossed the border. The district court denied Bello-Bahena's proposed instruction on the basis of its conclusion that constant surveillance does not amount to official restraint. The court then gave an instruction stating that the government had to prove three elements: "First, the defendant is an alien; second, the defendant was deported from the United States; and third, the defendant voluntarily reentered the United States without the consent of the Attorney General of the United States or his designated successor or the Department of Homeland Security."

The jury returned a guilty verdict. Following entry of the judgment of conviction, Bello-Bahena timely appealed.

II.

Bello-Bahena first argues that the district court erred in denying his motion for judgment of acquittal. We review de novo a district court's denial of a motion for judgment of acquittal. United States v. McNeil, 320 F.3d 1034, 1035 (9th Cir.2003). We must view the evidence in the light most favorable to the government and determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. United States v. Gonzalez-Torres, 309 F.3d 594, 598 (9th Cir.2002).

8 U.S.C. § 1326 makes it a crime for a person who previously has been deported to enter, attempt to enter, or at any time be found in the United States.⁴ Physical presence in the country is insufficient to convict a defendant for being "found in" the United States. The government also must prove that the individual "entered the United States free from official restraint at the time officials discovered or apprehended him." United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir.2000), as amended (2001); see also United States v. Parga-Rosas, 238 F.3d 1209, 1213 (9th Cir.2001) (explaining that an alien who is physically present in the United States is not deemed to have entered "if he is still under official restraint at the time he is found"). The burden is on the government to establish lack of official restraint. United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir.2001).

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. United States v. Vela-Robles, 397 F.3d 786, 788 (9th Cir.2005). Constant surveillance will bar conviction even if the alien is unaware that he is being observed and even if he is arrested at a point "well past the point of entry." Ruiz-Lopez, 234 F.3d at 448 (citing Matter of Pierce, 141 I. & N. Dec. 467 (BIA 1973)). Thus, we have reversed a "found in" conviction where the alien was under continuous observation, except for a number of seconds, by one of two agents from the time he crossed the border until his apprehension. Gonzalez-Torres, 309 F.3d at 599; see also United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir.2000) (reversing a "found in" conviction of an alien who was detected on a surveillance video camera as he crossed the border and except for a split second never left the agent's sight before his arrest).

On the other hand, where an individual evades the government's detection, even for a brief time, we have held that he has legally entered the country free of official restraint and may be convicted of a "found in" offense. See United States v. Ramos-Godinez, 273 F.3d 820, 824-25 (9th Cir. 2001) (affirming a "found in" conviction where law enforcement observed the defendant cross the border but lost sight of him for two significant periods of time before his apprehension); United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir.2001) (holding that an alien who was being pursued by law enforcement and escaped into thick brush out of sight of law enforcement for a period before his arrest was free from official restraint).

Bello-Bahena asserts that a rational jury could not have found beyond a reasonable doubt that he was free from official restraint in the form of constant governmental observation. He notes that it is undisputed that he was under continuous surveillance from the time Agent Drake contacted Agent Rodriguez until his arrest. Further, no evidence showed a lack of surveillance from the time Bello-Bahena crossed the border. Rodriguez testified that he had "no idea" when Drake first detected Bello-Bahena, and Drake himself did not testify. Bello-Bahena suggests that the most reasonable inference is that Drake's scope was pointed at the border, and that Drake alerted Rodriguez when the group was near Rodriguez, not when Drake first saw them. Without hearing testimony regarding whether Drake observed Bello-Bahena from the moment he crossed the border, Bello-Bahena argues, the jury had no basis from which to conclude that Bello-Bahena was not under constant surveillance the entire time he was in the country.

Relying on our decision in Castellanos-Garcia, the government argues that the evidence supports an inference that Bello-Bahena was free from official restraint up until the point when Drake notified Rodriguez of Bello-Bahena's presence. In Castellanos-Garcia, we rejected a defendant's claim that the government failed to prove that he was free from official restraint. 270 F.3d at 776. There, the arresting agent testified that he simply came upon the defendant at some point after he crossed the border, without relying on a sensor device or another agent to locate him. Id. at 778. We held that in the absence of contrary evidence, such testimony sufficed to allow a rational jury to conclude that the...