United States v. Gregorio Portillo, 692 F. App'x 376

Defendant Gregorio Munoz Portillo was convicted under 8 U.S.C. § 1326 for illegal reentry after removal and appealed.
Portillo sought to present an affirmative defense under § 1326(a)(2)(B) based on timing of reentry relative to any required consent-to-reapply period.
The district court denied the government’s motion in limine that would have barred Portillo’s § 1326(a)(2)(B) defense, but gave oral guidance limiting counsel from eliciting legal opinions or confusing the jury about statutory elements.
At trial Portillo introduced no evidence of the date he reentered the United States. Immigration records showed no consent to reapply for admission and he was found in 2015.
The court instructed the jury that obtaining consent to reapply has no time limitation; Portillo challenged that instruction on appeal.
The Ninth Circuit reviewed whether the district court precluded presentation of the defense, whether it properly limited closing argument, and whether the jury instruction was erroneous and, if so, harmless.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether district court precluded Portillo from presenting evidence supporting a § 1326(a)(2)(B) defense	Portillo: court comments curtailed his ability to introduce evidence on the defense	Government: court permitted evidence and only limited legal-opinion questioning and jury confusion	Court: No preclusion; defendant could introduce necessary evidence (e.g., reentry date)
Whether court properly barred counsel from arguing the § 1326(a)(2)(B) theory in closing	Portillo: counsel should have been allowed to argue the defense theory	Government: argument may be precluded if evidence cannot reasonably support it	Court: Properly restricted closing because no evidence of reentry date to support the theory
Whether § 1326(a)(2)(B) defense is legally cognizable	Portillo: the statute allows affirmative defense if reentry occurred after consent-to-reapply period	Government: district court questioned legal cognizability	Court: Did not decide on cognizability; affirmed on evidentiary ground instead
Whether jury instruction stating no time limitation on consent-to-reapply was erroneous and reversible	Portillo: instruction may be legally incorrect and prejudicial	Government: instruction was accurate as given and/or harmless	Court: Even if erroneous, the instruction was harmless beyond a reasonable doubt given undisputed lack of consent and absence of contrary timing evidence

United States v. Miguel, 338 F.3d 995 (9th Cir. 2003) (court must allow argument on a defense theory only when reasonable inferences from evidence support it)
United States v. Boulware, 558 F.3d 971 (9th Cir. 2009) (trial court may preclude a defense theory if evidence is legally insufficient)
United States v. Dorrell, 758 F.2d 427 (9th Cir. 1985) (insufficiency of evidence as a basis to preclude a defense theory)
United States v. McClendon, 713 F.3d 1211 (9th Cir. 2013) (appellate court may affirm on any correct basis supported by the record)
United States v. Henderson, 243 F.3d 1168 (9th Cir. 2001) (erroneous jury instructions reviewed for harmlessness)

AFFIRMED.