United States v. Jesus Alvarez-Ulloa, 784 F.3d 558

Defendant Jesus Alvarez-Ulloa, a Mexican citizen and former professional boxer, was indicted under 8 U.S.C. § 1326(a) for being "found in" the U.S. on Oct. 23, 2011 following a prior removal on Dec. 17, 2010.
At trial Ulloa conceded presence/date but asserted an insanity defense based on alleged brain injury (chronic traumatic encephalopathy) from boxing.
During jury selection the government used three peremptory strikes against Hispanic veniremembers (Panelists 25, 29, 30); Ulloa raised Batson challenges which the district court denied after finding facially neutral reasons.
During deliberations the jury asked whether moments of clarity during the illegal stay would negate insanity and later reported a deadlock; the court asked if clarification would allow continued deliberations and then instructed that insanity is negated if the defendant became sane long enough after entry that he could reasonably have left and knowingly remained.
The jury convicted Ulloa; he was sentenced to 48 months and his supervised-release revocation was affirmed by the district court.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court properly resolved Batson challenges to government peremptory strikes	Ulloa: strikes of three Hispanic veniremembers were racially motivated; district court failed to fully apply Batson's third step	Government: offered race-neutral, case-specific reasons for each strike (sports/immigration interest; law student/defense work; negative police experiences)	Court: district court erred in stopping after finding facially neutral reasons, but on de novo review Ulloa failed to prove purposeful discrimination; Batson challenges rejected
Whether the supplemental instruction impermissibly coerced the jury	Ulloa: instruction put a pro-prosecution gloss and pressured jurors to convict by suggesting insanity could lapse	Government: instruction clarified law for a continuing offense when jury was deadlocked and asked for guidance	Court: instruction was substantively correct for a continuing offense and, in context, was not coercive
Whether the supplemental instruction constructively amended the indictment by expanding temporal scope	Ulloa: indictment did not specify the period between reentry and being found, so instruction altered charging terms	Government: §1326(a) "found in" offense is continuing; reentry/duration are embedded so no new theory was imposed	Court: no constructive amendment; indictment provided notice of the continuing course of conduct and instruction did not alter the charged offense

Batson v. Kentucky, 476 U.S. 79 (1986) (peremptory strikes motivated by race violate Equal Protection)
Miller-El v. Cockrell, 537 U.S. 322 (2003) (three-step Batson framework; factors for evaluating prosecutor's explanations)
United States v. Portillo-Vega, 478 F.3d 1194 (10th Cir. 2007) (duress as continuing-offense defense requires proof throughout the illegal stay)
United States v. Hernandez-Guerrero, 633 F.3d 933 (9th Cir. 2011) (illegal reentry is a continuing offense)
United States v. Bailey, 444 U.S. 394 (1979) (continuing-offense defenses generally must cover entire duration of offense)
Smith v. Curry, 580 F.3d 1071 (9th Cir. 2009) (supplemental instructions that recast evidence for one side can be coercive)
Parker v. Small, 665 F.3d 1143 (9th Cir. 2011) (distinguishing permissible neutral supplemental guidance from coercive instructions)
United States v. Bhagat, 436 F.3d 1140 (9th Cir. 2006) (constructive amendment inquiry focuses on whether instructions materially diverge from the indictment)