U.S. v. Leos-Maldonado, 01-10291.

• Decision Date: 09 September 2002
• Docket Number: No. 01-10291.,01-10291.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Salvador LEOS-MALDONADO, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1061

302 F.3d 1061

UNITED STATES of America, Plaintiff-Appellee, v. Salvador LEOS-MALDONADO, Defendant-Appellant.

No. 01-10291.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 2002.

Filed September 9, 2002.

Philip Kimble, Tucson, AR, for the appellant.

Richard E. Gordon, Assistant United States Attorney, Tucson, AR, for the appellee.

Appeal from the United States District Court for the District of Arizona; Raner C. Collins, District Judge, Presiding. D.C. No. CR-00-01096-RCC.

Before SNEED, HUG and BERZON, Circuit Judges.

OPINION

SNEED, Circuit Judge.

Salvador Leos-Maldonado ("Leos") appeals the district court's denial of his motion for acquittal. He was convicted and sentenced for unauthorized reentry into the United States after having been deported. See 8 U.S.C. § 1326. We affirm.

I. BACKGROUND

Two months after being deported to Mexico, Leos, along with six other Mexican nationals, climbed the fence along the international border. Sometime after crossing the border, border patrol surveillance by cameras spotted a group of suspected illegal aliens "cresting a ridge." A border patrol agent confronted the group approximately 300 yards from the border on the American side, where they were hiding on the side of a hill. Leos admitted to being a deported alien. He was arrested and indicted for unauthorized reentry based on entering, attempting to enter, or having been found in the United States without consent.

At the district court bench trial, Leos moved for a judgment of acquittal. The court denied the motion, and Leos was convicted and sentenced. Leos appeals the district court's denial of his acquittal, asserting that he was never free from official restraint and that this condition: (1) precluded his entry; (2) prevented him from being "found in" the United States; and (3) impaired his ability to attempt an entry. He also argues, for the first time in his reply brief, that his indictment was defective because it omitted the specific intent element of attempted entry.

II. STANDARD OF REVIEW

We review the denial of a Rule 29 motion for acquittal de novo. United States v. Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir.2000). "Consequently, this court must review the evidence presented against the defendant in the light most favorable to the government to determine whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. (citations and internal quotations omitted). The district court's findings of fact are reviewed for clear error. United States v. Doe (R.S.W.), 136 F.3d 631, 636 (9th Cir.1998).

III. DISCUSSION

8 U.S.C. § 1326 prohibits deported aliens from reentering the United States without authorization. Reentry occurs when such an alien "enters, attempts to enter, or is at any time found in, the United States" without consent. 8 U.S.C. § 1326. It is undisputed that Leos traveled from Mexico to the United States without authorization. The issue is whether there is sufficient evidence of: (1) an entry; (2) an attempted entry; or (3) being "found in" the United States. Because these three offenses are distinct, see Pacheco-Medina, 212 F.3d at 1165, the acquittal denial must be affirmed if there is sufficient evidence to support a conviction on any one of the three grounds. In this case, we need not decide whether Leos entered or was found in the United States because there is sufficient evidence of his attempted entry.

Attempted entry essentially requires two elements: (1) the specific intent to reenter without consent; and (2) an overt act that was a substantial step towards this illegal reentry. See United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1196 (9th Cir.2000) (en banc). Leos argues that his conviction cannot be based on attempted entry because of deficiencies with respect to each of these elements. We disagree.

A. Overt Act Towards Reentry

First, Leos argues that he could not have taken a substantial step towards reentry because he was under official restraint (the surveillance cameras) that prevented him from completing an entry into the United States. Assuming without deciding that Leos was under official restraint to a sufficient degree as to preclude an entry, see Pacheco-Medina, 212 F.3d at 1162, any such restraint does not also ipso facto defeat a conviction based on attempted reentry. The mere fact that an alien is under official restraint does not make substantial steps toward entry impossible. See, e.g., Gracidas-Ulibarry, 231 F.3d at 1191-92, 1197-98 (finding alien guilty of attempted entry—even though under conspicuous restraint by government inspectors — when alien caught lying to authorities about his citizenship). It matters not whether the defendant's overt act takes the form of a surreptitious border crossing or a misrepresentation of legal status. To the extent that Leos argues that § 1326 requires the government to prove deception at the port of entry to support an attempt conviction, we reject his contention. See United States v. Barnes, 244 F.3d 331, 333-34 (2d Cir.2001).

Attempted entry occurs "when a previously deported alien `makes an effort' or `tries' to reenter the United States." United States v. Corrales-Beltran, 192 F.3d 1311, 1319 (9th Cir.1999), cert. denied, 531 U.S. 830, 121 S.Ct. 82, 148 L.Ed.2d 44 (2000). "It is the act of crossing the boundary line into the United States." Id. It is clear that Leos crossed the border. The evidence shows that he scaled the international border wall, crouching down to avoid detection after landing on American soil. He then traveled toward the hills for approximately ten minutes before finding a place to hide from the view of immigration trucks. Nothing in the statute or our cases suggests that such actions do not constitute an attempt to enter. Leos's efforts to convince us otherwise are without merit.

B. Specific Intent to Enter Without Authorization

Specific intent is also an element of the crime of attempted reentry and consequently must be alleged in the indictment. See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th Cir.2001); Gracidas-Ulibarry, 231 F.3d at 1196. Leos's indictment failed to allege the required intent. It is true that this failure, if timely raised, is "a fatal flaw requiring dismissal of the indictment." Pernillo-Fuentes, 252 F.3d at 1032.

Leos did not raise this deficiency, however, until appeal. While "a claim of defective indictment can be raised at any time," United States v. James, 980 F.2d 1314, 1316 (9th Cir.1992), review of an untimely objection to the sufficiency of the indictment is limited to the plain error test of Federal Rule of Criminal Procedure 52(b). United States v. Cotton, ___ U.S. ___, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002); United States v. Velasco-Medina, 305 F.3d 839 (9th Cir.2002).

Under the plain error standard, relief is not warranted unless: (1) there has been error; (2) the error is plain; and (3) the error affects substantial rights. Jones v. United States, 527 U.S. 373, 389, 119 S.Ct. 2090, 144 L.Ed.2d 370 (1999). Even then, the error must "seriously affect the fairness, integrity, or public reputation of judicial proceedings" before we can exercise our discretion to notice the error. United States v. Olano, 507 U.S. 725, 731, 113 S.Ct. 1770, 123 L.Ed.2d 508 (1993).

Leos cannot meet the third condition. In order to affect his "substantial rights," the error "must have affected the outcome of the District Court proceedings." United States v. Lussier, 128 F.3d 1312, 1317 (9th Cir.1997). In other words, the error must be not only plain but also prejudicial. See Velasco-Medina, 305 F.3d at 846-47.

In Velasco-Medina, we applied the plain error test to a similarly defective indictment. Id. at 845-47. In that case, we held that the untimely objection to the indictment did not prejudice the defendant—even though the indictment was plainly defective. Id. at 846-47. We noted that when, as here, the indictment specifically refers to 8 U.S.C. § 1326, it places the defendant "on notice of the charge against him and the specific intent necessary to support a conviction." Id.

Leos does not claim that he was in any way prejudiced in preparing and presenting his defense because of the indictment's failure to allege specific intent. He did not raise the insufficiency of his indictment until his reply brief (after the government's candid admission in its brief of the defect). We have...