United States v. Jesus Castillo-Mendez, 2017 U.S. App. LEXIS 15839

Castillo-Mendez crossed the U.S.–Mexico border with two others after being held and threatened by smugglers; they jumped a fence and were arrested within ~10 minutes.
He was charged with attempted illegal reentry under 8 U.S.C. § 1326(a), (b); at trial the central disputed element was whether he specifically intended to reenter “free from official restraint.”
Defense theory: he jumped to escape violent smugglers and intended to surrender to Border Patrol (i.e., no intent to be free from official restraint); district court also gave a necessity instruction.
During deliberations the jury asked what “official restraint” means and when intent forms; the court answered with a supplemental instruction drawn from “found in” precedent, stating official restraint requires continuous surveillance and that the alien need not be aware of surveillance.
Jury convicted; on appeal the Ninth Circuit reviewed the supplemental instruction de novo and found the instruction legally erroneous and prejudicial because it conflated “found in” and attempted-reentry law and downplayed the defendant’s mens rea.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the district court’s supplemental definition of “official restraint” properly instructed the jury on the mens rea element of attempted illegal reentry	The government argued the jury’s question could be answered by describing when an alien is under official restraint (continuous surveillance) and that awareness of surveillance is not required	Castillo-Mendez argued the instruction improperly imported "found in" law, made his mental state irrelevant, and misled the jury on the required specific intent to enter free from official restraint	The court held the supplemental instruction was legally incorrect and prejudicial: it conflated factual "found in" elements with the specific-intent mens rea required for attempted reentry, warranting reversal and a new trial
Whether the instructional error was harmless	Government implicitly argued any error was harmless given the evidence	Castillo-Mendez argued the mens rea was the central issue with conflicting evidence, so error could not be deemed harmless beyond a reasonable doubt	The court held the error was not harmless because specific intent was the central contested issue and reasonable jurors could have reached a different result; reversed and remanded

United States v. Gracidas-Ulibarry, 231 F.3d 1188 (9th Cir. 2000) (held attempted illegal reentry requires specific intent to reenter)
United States v. Lombera-Valdovinos, 429 F.3d 927 (9th Cir. 2005) (explained specific intent means intent to enter free from official restraint — to go at large and mix with the population)
United States v. Vazquez-Hernandez, 849 F.3d 1219 (9th Cir. 2017) (knowledge of constant surveillance can negate intent to be free from official restraint)
United States v. Liu, 731 F.3d 982 (9th Cir. 2013) (instructional error as to an element is harmless only if a rational jury would have convicted beyond a reasonable doubt)
United States v. Verduzco, 373 F.3d 1022 (9th Cir. 2004) (reviews correctness of district court responses to jury questions de novo)