United States v. Vazquez-Hernandez, 15-10009

• Decision Date: 03 March 2017
• Docket Number: No. 15-10009,15-10009
• Citation: 849 F.3d 1219
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Rosario VAZQUEZ-HERNANDEZ, AKA Jose Alfredo Jimenez-Valdez, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

849 F.3d 1219

UNITED STATES of America, Plaintiff-Appellee,

v.Rosario VAZQUEZ-HERNANDEZ, AKA Jose Alfredo Jimenez-Valdez, Defendant-Appellant.

No. 15-10009

United States Court of Appeals, Ninth Circuit.

Argued and Submitted September 12, 2016, San Francisco, California

Filed March 3, 2017

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.

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. Vazquez-Hernandez was eventually charged with attempted illegal reentry in violation of 8 U.S.C. § 1326 in a superseding indictment returned on October 1, 2014. The case proceeded to trial.

At trial, the district court judge instructed the jury on the elements of the offense of illegal reentry in the following manner:

[T]he government must prove each of the following elements beyond a reasonable doubt: First, the defendant was removed and/or deported from the United States; second, the defendant had the conscious desire to reenter the United States without consent; third, the defendant was an alien at the time of his attempted reentry into the United States; fourth, the defendant had not obtained the consent of the Attorney General or the Secretary of the Department of Homeland Security to reapply for admission into the United States; and fifth, the defendant did something that was a substantial step toward committing the crime.

During the course of argument for a directed verdict, and outside the presence of the jury, the judge stated to counsel that the only question at issue was the defendant's intent.¹

After receiving the instruction on the elements of attempted illegal reentry, the jurors expressed confusion about the intent requirement. The jurors asked, "Does, as a matter of [l]aw, illegal reentry into the United States include the element of intent to stay in the United States? Or is there no mention of such intent in the statute?" In response, the court referred the jurors to the instruction it had already given on the elements of the offense. Vazquez-Hernandez did not object to the instructions at trial.

On October 8, 2014, the jury convicted Vazquez-Hernandez of attempted illegal reentry, the sole count in the superseding indictment. On December 18, 2014, the district court sentenced Vazquez-Hernandez to 40 months of imprisonment followed by three years of supervised release and imposed a $100 special assessment. Vazquez-Hernandez filed this timely appeal.

II. Discussion

A. Improper jury instruction

Although this Court generally reviews a jury instruction that misstates the elements of a statutory crime de novo, we review an instruction for plain error in the absence of a timely objection to it below.²

United States v. Kilbride , 584 F.3d 1240, 1247 (9th Cir. 2009). In order to conclude that plain error exists, we must find "(1) an error that is (2) plain and (3) affects substantial rights." Id. (quoting United States v. Peterson , 538 F.3d 1064, 1071 (9th Cir. 2008) ). Where these conditions are met, "we may only exercise our discretion to correct the error if it seriously affects the fairness, integrity or public reputation of judicial proceedings." Id. (quoting Peterson , 538 F.3d at 1072 ).

i. Plain error

The district court's failure to include an instruction on freedom from official restraint at summation constituted plain error. The Fifth and Sixth Amendments require criminal convictions to rest upon a jury determination that the defendant is guilty of every element of the crime with which he is charged beyond a reasonable doubt. United States v. Gaudin , 515 U.S. 506, 509–10, 115 S.Ct. 2310, 132 L.Ed.2d 444 (1995). Jury instructions misstate the essential elements of an offense when they do not adequately link the intent element of a crime with the required object of that intent. See United States v. Montoya-Gaxiola , 796 F.3d 1118, 1122–24 (9th Cir. 2015) (finding plain error because jury instruction did not specify that, where defendant was charged with possession of an unregistered firearm, the jury must find that the defendant knew of the features of his weapon that brought it within the definition of a firearm under the criminal statute, rather than knowing that he had a weapon which happened to have such features, unbeknown to the defendant); United States v. Cherer , 513 F.3d 1150, 1155 (9th Cir. 2008) (finding error in jury instructions regarding the elements of a sex crime committed towards a minor where the instruction failed to appropriately connect the requisite state of mind, knowledge, with the statute's object, a minor victim).

The crime of attempted illegal reentry under 8 U.S.C. § 1326 is a specific intent crime that requires proof beyond a reasonable doubt that the defendant had "the specific intent ‘to reenter without consent.’ " United States v. Lombera-Valdovinos , 429 F.3d 927, 929 (9th Cir. 2005) (quoting United States v. Leos-Maldonado , 302 F.3d 1061, 1063 (9th Cir. 2002) ). For the purposes of § 1326, "entry" has a distinct legal meaning: "[a]n alien has not entered the United States under § 1326 unless he does so ‘free from official restraint.’ " Id....