USA v. Pacheco Medina

• Decision Date: 16 May 2000
• Docket Number: No. 99-50414,PACHECO-MEDIN,D,99-50414
• Citation: 212 F.3d 1162
• Parties: (9th Cir. 2000) UNITED STATES OF AMERICA,Plaintiff-Appellee, v. ALEJANDROefendant-Appellant
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1162

212 F.3d 1162 (9th Cir. 2000)

UNITED STATES OF AMERICA,Plaintiff-Appellee, v. ALEJANDRO PACHECO-MEDINA, Defendant-Appellant.

No. 99-50414

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted April 13, 2000

Filed May 16, 2000

COUNSEL: Tony L. Cheng, Federal Defenders of San Diego, Inc., San Diego, California, for the defendant-appellant.

Roger W. Haines, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Judith N. Keep, Chief District Judge, Presiding. D.C. No. CR-98-03749-JNK

Before: Ferdinand F. Fernandez and Kim McLane Wardlaw, Circuit Judges, and Charles R. Weiner, ¹ District Judge.

FERNANDEZ, Circuit Judge:

Alejandro Pacheco-Medina appeals his conviction and sentence for being found in the United States after he had been deported. See 8 U.S.C. S 1326. He claims that the evidence will not support the conviction because it shows that he did not actually manage to enter the United States. We agree and reverse for entry of an acquittal.

BACKGROUND

There can be little doubt that Pacheco was deported from the United States on December 7, 1998.² There is no doubt whatsoever that he was caught on his way back into the United States just two days later.

On December 9, 1998, Pacheco and two others began climbing the international boundary fence that separates the United States from Mexico. On this side of the border was the parking lot of the United States Customs compound. A surveillance video camera detected them as they scaled the fence, and the monitor immediately contacted Border Patrol Agent Dionicio Delgado, who was on bike patrol at the time. Within a matter of seconds Agent Delgado responded to the call. He arrived at the lot just as the three landed. They dropped off the fence and were crouched in preparation for escape into the country at large.

Pacheco's two companions were nabbed immediately, but Pacheco ran by the agent, who instantly gave chase. Pacheco never left the agent's sight except for a split second as he rounded a corner, and within a few yards of the border³ he was captured and taken into custody. Thereafter, he admitted many of the elements of the crime.

At trial, Pacheco moved for an acquittal. See Fed. R. Crim. P. 29. He claimed that because he was never free from official restraint, in legal contemplation he had not even entered the United States. The district court disagreed, he was convicted and sentenced, and this appeal ensued.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. S 3231. We have jurisdiction pursuant to 28 U.S.C. S 1291.

We review the denial of a motion for acquittal under Federal Rule of Criminal Procedure 29 de novo. See United States v. Neill, 166 F.3d 943, 948, (9th Cir.), cert. denied, 526 U.S. 1153, 119 S. Ct. 2037, 143 L. Ed. 2d 1046 (1999). "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. (citation and some internal quotation marks omitted).

DISCUSSION

As we begin to consider whether Pacheco committed a crime, we do so with the knowledge that he was an alien, he had been removed from the country, and he had again, just two days later, set foot on United States soil. It is also clear that it is a crime for an alien to enter, attempt to enter, or "at any time [be] found in" the United States after having once been deported from this country. 8 U.S.C. S 1326(a). Thus, a general reading would suggest that Pacheco did commit the crime because he surely left Mexico for the United States, and he just as surely was found on our soil after he came over the border fence. But as a matter of law it is not quite that easy because physical presence is not enough. That is most clearly shown in the concept of "entry," a concept which has a long judicial history. As the Supreme Court has pointed out, "[t]he definition of `entry' as applied for various purposes in our immigration laws was evolved judicially." Rosenberg v. Fleuti, 374 U.S. 449, 453, 83 S. Ct. 1804, 1807, 10 L. Ed. 2d 1000 (1963). The definition did not enter the immigration statutes until 1952. See id.

The notion was expressed in a 1908 case where aliens had crossed the border and proceeded for a quarter of a mile along railroad tracks, but had been under the surveillance of border inspectors from before the time they crossed until their actual physical capture. See Ex parte Chow Chok, 161 F. 627, 62829, (N.D.N.Y.), aff'd, 163 F. 1021 (2d Cir. 1908). The court said that the aliens had not entered at all. On the contrary:

They were not `permitted to enter,' or allowed to enter, within the meaning and intent of the law. `Enter' means more than the mere act of crossing the border line. Those who seek to enter in the sense of the law, and those the policy of the law seeks to pre vent from entering, are those who come to stay per manently, or for a period of time, or to go at large and at will within the United States. These persons, on entering, were at once surrounded by officers, silently taken in charge, in effect arrested, and from that time effectually deprived of their liberty and prevented from going at large within the United States.

Id. at 630; see also Zhang v. Slattery , 55 F.3d 732, 754-55 (2d Cir. 1995); Correa v. Thornburgh, 901 F.2d 1166, 1171-72 (2d Cir. 1990). The theme has been repeated by the Board of Immigration Appeals. See Matter of Pierre, 14 I. & N. Dec. 467 (1973). In that case, the BIA made it clear that, as relevant here, before he can be said to have entered, an alien must be free from restraint. See id. at 468. More particularly, "[t]he restraint may take the form of surveillance, unbeknownst to the alien; he has still not made an entry despite having crossed the border with the intention of evading inspection, because he lacks the freedom to go at large and mix with the population." Id. at 469. The theme has also been used by other circuits. See Yi Yang v. Maugans, 68 F.3d 1540, 1549-1550 (3d Cir. 1995); United States v. Kavazanjian, 623 F.2d 730, 73637 (1st Cir. 1980).

In a trilogy of cases, we have found that leitmotif running through S 1326, and in so doing have composed the rule that resolves the case now before us. The first of those cases involved a defendant who was convicted of aiding and abetting aliens to enter the United States. See United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974).

In Oscar, we reversed because, as we said, the government had to prove that the aliens in question did enter before it could hold Oscar responsible for an entry. See id. at 493-94. We recognized that the aliens had crossed the international border and had, therefore, set foot in this country, but that, we said, was not enough because they had never managed to get past secondary inspection. See id. at 493. We pointed out that the concrete fact of entry did not suffice because as a legal matter " `entry' . . . has not been accomplished until physical presence is accompanied by freedom from official restraint." Id. As it was, the aliens did not enter at all "because they were never free from the official restraint of the customs officials at the San Ysidro Port of Entry." Id.

We returned to the area in United States v. MartinPlascencia, 532 F.2d 1316 (9th Cir. 1976). There an intrepid alien, who was "out of the view of the immigration officials," managed to get through one fence and then through another one without detection. Id. at 1317. He found himself within the United States, but fifty yards later he encountered a concrete wall which separated the port of entry area from the streets of San Ysidro. As he tried to scale that wall, he was finally detected and arrested.⁴See id. We upheld the juvenile adjudication based upon his illegal entry because, as we said, he "was at no instant up until the moment of his arrest under any type of official restraint, but to the contrary was exercising his free will, youthful enterprise, and physical agility in evading fixed physical barriers in accomplishing his entry." Id. That freedom from official restraint while he was on our soil distinguished Martin's case from Oscar's.

We took the question up again when a defendant claimed that undercover surveillance was enough to keep an alien under official restraint for the seven months after she illegally crossed the border into the United States. See United States v. Aguilar, 883 F.2d 662 (9th Cir. 1989). We disagreed. No doubt the illegal smuggling movement of which Aguilar was a part had been penetrated by government agents, who, therefore, knew of the entry of the alien. But those agents were not with the alien, nor were they watching her, at all times. We accepted the doctrine of official restraint, but declared that under it "an alien must be under official restraint at all times during and subsequent to physical entry." Id. at 682-83. "The doctrine is premised on the theory that the alien is in the government's constructive custody at the time of physical entry. By contrast, when an alien is able to exercise his free will subsequent to physical entry, he is not under official restraint." Id. at 683. Thus, while a government undercover agent did make visits to the alien's home,"brief visits" were insufficient to constitute official restraint because they "were insufficient to prevent her from escaping. " Id. Similarly, where immigration officials knew that another group of aliens would enter the country, but did nothing to observe or stop the group, its members were not under official restraint. See id. at 684. "The aliens were not subject to constant surveillance subsequent to their initial physical entry." Id. The defendants' assertions, therefore, failed because the...