*3 JR.,* SILER, A. E. Before EUGENE TASHIMA, CARLOS T. WALLACE BEA, Judges. Circuit * cuit, Siler, Jr., designation. sitting by Eugene Senior E. The Honorable Cir- Judge the Sixth Circuit United States
SILER, Judge. Circuit uniformed in a marked car who con- ducts twenty-four hour surveillance of Rafael appeals his area, which large illuminated conviction and for being deport- sentence lights.2 ed alien found in the United States without permission, in violation of 8 U.S.C. During midnight shift, Agent Viau (1) presents He arguments six on appeal: saw running northbound in the evidence was insufficient to support Fence, Channel front of the Ballard (2) verdict; the district court improp- approximately yards 100-150 inside the (3) erly jury; instructed the the district United Agent States. Viau drove his Jeep court violated his Fifth and Sixth Amend- and, into the Channel after a scuffle, brief ment rights by excluding testimony *4 arrested Cruz-Escoto. Cruz-Escoto ad- (4) witness; an impeachment the introduc- Agent mitted to Viau that he was a citizen tion of evidence that he illegally twice en- of Mexico and did not proper have docu- tered the United States violated Federal permit mentation to him to enter the Unit- 401, 403, (5) Rules of 404(b); Evidence and ed States. He was subsequently indicted violated Batson v. Ken- for being a deported alien found in the tucky, 79, 476 1712, U.S. 106 S.Ct. 90 States, United in violation of 8 U.S.C. (6) (1986); L.Ed.2d 69 and the district § 1326. court impermissibly increased his sentence trial, At statutory Agent
above the maximum. Viau AF- testified that he We did FIRM. not see Cruz-Escoto cross the border and say could not how or where Cruz-Escoto
I. BACKGROUND entered United govern- States. The 2004, In Border Agent Patrol Jason also introduced evidence that Cruz- Viau conducted surveillance of an area Escoto had twice been removed from the along the Mexico-United States border United States and that he ap- had never known as the Channel, “Channel.” The plied permission for to re-enter. Cruz- in just located Tijuana, California north of Escoto was convicted of violating § 1326. is a cement river bed that runs north from At sentencing Cruz-Escoto’s hearing, States, Mexico into the United where it the district court increased sentence eventually empties into the Pacific Ocean. two-year above the statutory maximum to There are no fences where the Channel eighty-four months because it found that States;1 enters into the however, United he previously had deported been following yellow painted line on the bottom of the a felony conviction. Channel marks the international border. The Border permanent Patrol has a post II. STANDARD OF REVIEW located at this vulnerable section of the Channel. permanent This post not a Claims of is insufficient evidence are re- designated port entry, consists a viewed de novo. Duran, United States v. 1. While there are point no fences at the where 2. The permanent station at post the Channel enters into the United guards only Channel, gap the fence in the there are along two fences located areas other but also other fenced areas the Channel. of the southern parallel bank. fences run These areas are point an attractive entry other, to each separated by only twenty to for undocumented aliens though because even thirty yards. The first fence is made of steel fenced, they they are are as not well-lit as the approximately eight and is feet tall. The sec- gap in the Channel. fence, ond fence is a cement known fence,” nearly "Ballard fifteen feet tall.
1085
Ruiz-Lo-
v.
Cir.1999).
States
him.” United
(9th
hended
1071, 1078
F.3d
189
Cir.2000).
(9th
445, 448
cov-
F.3d
adequately
pez, 234
jury instructions
Whether
es-
to
de
on the
is
reviewed
“The burden
the defense
theory of
er
232
Fejes,
United
v.
States
lack of official restraint.”
United
as well.
tablish
novo
Cir.2000).
(9th
1083,
Whether
Bello-Bahena,
411 F.3d
F.3d
v.
States
scope
within
Cir.2005).
falls
(9th
particular
de
also reviewed
of evidence
a rule
re
under
‘official
alien is
“An
Smith,
F.3d
v.
States
novo. United
with
if,
crossing the border
straint’
after
Cir.2002).
court’s
(9th
A district
758, 768
authorization,
‘deprived
[his]
he is
out
evidence is
admit
exclude
decision
large
going
liberty
prevented
Unit-
of discretion.
an abuse
reviewed
” Gonzalez-Tor
States.’
within
Castillo,
F.3d
ed States
(alteration in
res,
original)
at 598
find-
Cir.1999).
court’s
(9th
The district
v. Pacheco-Medi
(quoting United
discrimination
purposeful
ings regarding
Cir.2000)).
na,
entitled
findings of facts
are
jury selection
concept of official restraint
Because
set aside
will be
deference
great
not be
broadly,
alien need
interpreted
clearly erroneous.
if
Cir.1989).
to be
custody of authorities
Power,
physical
*5
violates
Ruiz-Lopez, 234
sentence
officially
that a defendant’s
restrained. See
Claims
466, 120
Jersey, 530 U.S.
may
v. New
restraint
take
Apprendi
“[T]he
F.3d at 448.
(2000), are
2348,
435
147 L.Ed.2d
surveillance,
to
S.Ct.
unbeknownst
form
Smith,
at 771.
282 F.3d
de novo.
reviewed
(alteration
original) (quot
alien....”
Id.
1164).
Pacheco-Medina,
at
F.3d
212
ing
III. DISCUSSION
crosses
an alien
Whether
Evidence
of the
Sufficiency
A.
entry or
point
designated
at a
argument
first
Cruz-Eseoto’s
the consideration
weighs on
elsewhere also
to find
insufficient
the evidence was
who crosses
alien
“An
official restraint.
Specifical
violating
1326.
guilty
him
designated location
at a
the border
from
never free
he was
argues that
ly, he
designat
manner
directly in the
proceeds
appre
he was
restraint because
official
sta
the border
by the
ed
per
Agent Viau’s
passed
he
before
hended
to the
himself
presents
he then
where
tion
post.
manent
in’ the
been ‘found
[yet]
not
has
authorities
1326, the
§of
Zava
prove
To
violation
v.
States
United
States....
United
deported
(9th
that a
must
1116,
show
Cir.
prosecution
1121
la-Mendez, 411 F.3d
enter, or was
entered,
attempted
fences,
alien
ca
raft
2005).
climb
Aliens who
official
in,
without
States
found
United
bor
across the
nals,
sneak[ ]
“or otherwise
8
See
government.
of the
permission
manner,”
at
id.
illegitimate
in some
der
alone is
presence
Physical
§ 1326.
U.S.C.
only if
restraint
official
are under
being
a conviction
to sustain
insufficient
ob
governmental
constant
they are under
See, e.g.,
in” the United States.
“found
foot
[they] set
the moment
“from
servation
Gonzalez-Torres, 309
States
United
[their]
moment
country until the
in this
(9th Cir.2002);
States
United
594, 598
F.3d
v. Castellanos-
States
arrest.” United
Pacheco-Medina,
1163-
Cir.2001).
Garcia,
F.3d
Cir.2000).
must
latter
to this
applies
rule
Another
“entered
that the individual
prove
also
govern
evade
those who
aliens:
class of
at
official restraint
free from
crossing the bor
while
observation
appre-
discovered
officials
the time
der are deemed to be free from official
straint. Agent
testimony
Viau’s
that he
restraint, regardless of
they
the distance
never saw Cruz-Escoto cross the border is
entry
travel between
and arrest. See Bel
significant,
dispositive,
not
but
in our in
lo-Bahena,
(no
F.3d at
1087-88
official quiry.
our “surreptitious entry”
Under
restraint when defendant
first observed
precedent,
only
his arrest
yards
100-150
border);
he
crossed
Castellanos-
after
Garcia,
from the border is of no consequence since
(no
F.3d
774-75
the distance traveled once inside the Unit
though
even
captured
defendant
ed States is not the ultimate consideration.
yards
beyond border because See,
Bello-Bahena,
e.g.,
1087;
411 F.3d at
Border Patrol
did not see defendant
Vela-Robles,
United States v.
border).
cross the
The rule of these cases
(9th Cir.2005);
Castellanos-Gar
is that the distance traveled
entry
between
cia, 270
Rather,
whether
apprehension
determinative;
Cruz-Escoto could exercise his free will
rather, the focus is on whether the alien is
once inside the United States is the focus
able to
his free
exercise
will once he has
analysis.
of our
entered
country.
this
A complicating
fact
this case is that
Cruz-Escoto contends that he was never
geography
might
Channel
pre-
free from official restraint because al- vent
someone
though
border,
he crossed the
he never
exercising his own free will inside the
past
made it
permanent
post. He
until
passes
he
perma-
argues that
permanent
this
post is analo-
post. However,
nent
we
need
consider
gous to a designated point of entry be-
here,
that situation
because there was no
cause “unless
person
in get-
succeeds
did,
fact,
ting past
post,
person
has not
*6
cross the border immediately preceding
successfully
freely
the
entered
United
his arrest. Because he
testify,
did not
the
Therefore,
reasons,
States.”
he
this case
jury might well have determined that
port
falls between
entry
the
of
cases and
Cruz-Escoto
already
was
in this country
the other “sneaky entry” cases.
ability
had the
to exercise his free will
Despite his attempt to portray this case
inside the United States. We are simply
falling
port
between a
entry
of
case and
say
unable to
that there was insufficient
surreptitious entry case,
have
we
never
evidence for a
jury
rational
to conclude
established a
ground.
middle
In Zavala-
that Cruz-Escoto was free from official
Mendez, we specifically
only
noted
two
restraint.
lines of authority for “found in” cases: the
first
present
where aliens
themselves at
B. Adequacy of the Jury Instructions
designated points
entry,
and the second
Cruz-Escoto’s next argument is that the
where aliens enter surreptitiously. Zava
(1)
district court erred when:
it failed to
la-Mendez,
Here,
Although judge geography jury instruct the theory involved in on his presents defense, case unique situation, provided jury that it supported is by heard sufficient evidence to decide that law and has some foundation in the evi free was from official re dence.” Mason, United States v. 902 F.2d he until he crossed border Cir.1990). the moment An instruction 1434, 1438 “ to detected, is similar may this case was first though the ‘even proper is inconsistent, or such as Gonzalez- insufficient, cases “interruption” weak, be However, v. So States credibility.’ United and Pacheco-Medina. Torres doubtful 176, 178 telo-Murillo, Cir. F.2d where applies cases of those the rule Yarbrough, 1989) (quoting crossing observed was the defendant (9th Cir.1988), cert. 1522, 1541 in this inapplicable The rule border. 171, 102 866, 109 S.Ct. denied, 488 U.S. seen was not case because (1988)). L.Ed.2d the border. crossing mostly jury to the given instructions that Cruz-Escoto’s this reason It is for in- proposed with Cruz-Escoto’s coincided also incor- error is assignment second However, line of one last structions. sentence that the last argues He rect. instructions proposed of Cruz-Escoto’s misstates instructions the final jury instruc- final included was it contradicts Pacheco-Medi- law because tions: including Ruiz-Lopez. progeny, its na and attempts Furthermore, an alien when However, nothing in Pacheco-Medina States, fact the mere the United enter the settled has changed cases subsequent of law gaze eluded the may have he across alien sneaks if an rule that arrest, enforcement, or eluded undetected, deemed generally he is having after come time period brief regardless free from official to be territory insuffi- upon United States in the United he travels of the distance itself, “free- cient, establish in and of Bello-Bahena, See States. restraint.” dom Castellanos-Garcia, 1087-88; instructed Rather, court the district 775-76. jury: is a case Ruiz-Lopez contention His surveillance constant alien is under If an not observed the defendant he where when entered officers immigration Al- misguided. he entire time and the the United in that case may not immigration he officer though is inside observing theOn restraint. recall specifically from official be free could *7 border, did hand, immigration general official his if an other cross defendant into the cross monitoring the Defendant closely see not of practice Defendant then the il- interviewing suspected immediately restraint. under official testimony be would sufficient provided legal aliens the inference permit is to practice of error assignment of habitual first Cruz-Escoto’s while the last was monitored give refusal to the defendant court’s that the district his Ruiz-Lopez, While instruction. proposed his the border. line of accurate state- an instruction proposed 448-49. F.3d at Gonzalez-Torres, see, law, e.g., ment of Pacheco-Medina, 212 598, F.3d Testimony Opinion of Exclusion C. to this 1163-64, inapplicable it is F.3d the district argues that Cruz-Escoto of question never There was case. Amend- Fifth Sixth his violated court surveillance whether the testimo- it excluded rights when to constructive amounted would have witness that a defense ny of interrup- periods resulting from brief wit- central government’s impeached believes Cruz-Escoto Apparently, tion. ness. elapsed from of time period
that because provides Constitution Moreover, an this ruling was accused with “a meaningful opportunity to abuse of discretion under Fed.R.Evid. 403. introduce relevant on evidence his behalf.” D. Evidence Prior Removals Terhune, 1012,
Menendez (9th Cir.2005); see also Crane v. Ken Cruz-Escoto’s argument next 683, 690, tucky, 476 2142, U.S. 106 S.Ct. 90 that the district improperly court admitted (1986). However, L.Ed.2d 636 trial “a evidence of previous his illegal entries and judge may exclude or limit evidence to removals. He argues that this evidence prevent time, consumption excessive un violates Federal Rules of Evidence prejudice, due issues, confusion of the 404(b). 403, and Menendez, misleading jury.” 422 F.3d 404(b) While Rule prohibit does the ad- at 1033. In considering whether the exclu crimes, mission of “other wrongs, or acts” sion of evidence process, violates due this prove to the propensity defendant, court considers probative “the value of the evidence that a necessary element of the evidence on the central issue.... Miller crime charged is not “[e]vi- considered v. Stagner, 757 F.2d Cir. crimes, dence of other wrong, or acts” 1985). within the meaning of the Rule. United v. Campbell, Cruz-Escoto sought impeach Cir.1985) (alteration Agent testimony Viau’s original) that in (quoting vehicle south, 404(b)). facing was but Fed.R.Evid. Therefore, that he was continu evidence ally looking showing west. argues He this Cruz-Escoto previously had testimony enabled deported 404(b) been to ar is not Rule gue that Agent Viau did not because see Cruz- prove had to Escoto cross the border and therefore was element of the crime. See 8 U.S.C. never 1326(a)(1). free from “official restraint” because he was not continually under surveillance. argues Cruz-Escoto govern- attempted to introduce tes- use multiple ment’s prior deportations, timony Castillo, of Robert a defense wit- proof when one necessary, ness trained in surveillance. Cruz-Esco- constitutes reversible error. find no We to’s proffered counsel that Castillo “would error permitting this evidence because that, testify you’re when doing surveil- in other contexts we permitted have lance, very it’s your difficult have vehi- introduction of more than predicate one cle pointed in one direction and then to act to establish an element of the crime. constantly looking another, be which See Weiland, was essentially the testimony (9th Cir.2005) (finding harmless agent.” Thus, argues, Agent error use four prior felony convic- *8 Viau must have looking been toward the tions to establish defendant’s status as a gap in fences, which was the felon under 18 U.S.C. 922(g)(1)), cert. — direction his vehicle was pointing, denied, and he U.S.-, 1911, 126 S.Ct. 164 must have seen (2006). the cross L.Ed.2d 667 border. Moreover, the district court gave two
The district court did not violate Cruz- limiting instructions to minimize the poten- Escoto’s Fifth or Sixth rights Amendment tial prejudice. See United States v. Ba- by excluding testimony. Castillo’s The singer, 1400, 60 Cir.1995). 1408 court decided that the evidence was irrele- The first limiting instruction informed the vant it because was within the jury understand- that it could use the depor- of ing a juror. common See Fed.R.Evid. tation to show citizenship, absence of mis- ex curiam). a race-neutral Finally, “[i]f accident, deportation, for and take tendered, must trial court the planation is The offense. of the an element was which opponent of ... whether then decide after given was instruction limiting second racial dis proved purposeful strike has informed and closing arguments 767, 115 Purkett, at 514 U.S. crimination.” “other purpose limited again of 1769. S.Ct. evidence. acts” Cruz- that contends government The Allegations Batson E. showing facie prima make a did not Escoto that contends pro- to he failed because of discrimination Protection Equal violated the government circum- relevant or other any facts duce per used impermissibly because Clause inference of raise an could stances Hispan two to exclude challenges emptory his ob- In discrimination. impermissible jurors. potential ic that “[t]here stated jection, Cruz-Escoto by the stricken who hispanics two were are prohibits Amendment Fourteenth The 24,” and 23 and number government, jury selection in the discrimination racial they struck the reason that’s “I don’t think Kentucky, v. Batson See process. this is argues that government her.” 1712, 90 L.Ed.2d 79, 106 S.Ct. U.S. show- prima a facie establish to insufficient objects to (1986). who defendant A However, requested court the district ing. challenges carries peremptory of use for reasons government’s accepted show- prima a facie establishing burden Thus, jurors. Hispanic two excluding the Id. discrimination. unconstitutional ing of made a of whether Cruz-Escoto a the issue make such To 93-96, 1712. S.Ct. at showing of discrimination facie prima show must first the defendant showing, Cambra, 465 F.3d v. moot. See Kesser cognizable a (1) he is a member that: Cir.2006) (“ prose- a 351, '[0]nce (2) per- used group; government racial explana- race-neutral has offered cutor remove challenges members emptory challenges and peremptory (3) tion for the the “facts group; racial ques- the ultimate ruled on court has an trial raise circumstances relevant any other discrimination, pre- tion of challenge intentional peremptory that the inference” the defendant factor, liminary of whether issue impermissible motivated showing becomes facie prima made a has 96, 1712. 106 S.Ct. Id. race. such as York, ”) v. New Hernandez (quoting moot.’ facie prima makes If a defendant 1859, 114 S.Ct. 500 U.S. discrimination, burden showing (1991) opinion)). (plurality L.Ed.2d 395 race- to offer to the shifts did, that court the district Assuming, as particu for exclusion neutral reasons showing facie prima made a “The Cruz-Escoto 106 S.Ct. Id. lar race. discrimination, still fails be- claim Batson, satisfy explanation, prosecutor’s valid, articulated cause valid, not be it need facially only be need excluding justification race-neutral as it is long so plausible or even persuasive ration- Gillam, jurors. The potential race-neutral.” jurors Hispanic two excluding the (9th Cir.1999); alized see 1273, 1278 sons, on depending their 767-68, they Elem, because 514 U.S. Purkett also —or is accurate3— transcript (1995) which version (per 1769,131 L.Ed.2d 115 S.Ct. *9 24, are both sons Her same “On alleges, government 3. The is at issue.” one assume employed contest, that there is error does not —I on its that based contends The transcript transcript. reflects trial recording, prosecu- the official as: review justification race-neutral government’s 1090 unemployed.
were
argues
increase violates
Supreme
Court’s rul-
that this reason is insufficient to
rebut
ing Apprendi v. New Jersey, 530 U.S.
prima
showing. However,
facie Batson
466,
2348,
120 S.Ct.
juror any referred to “sons” the two *10 arrest, enforcement, or eluded Cortez-Arias, gaze law See, States e.g., United Cir.2005). having time after period for a brief n. 8 territory is insuf- United States upon come AFFIRMED. itself, to ‘free- ficient, establish and of ” The district TASHIMA. by Judge official restraint.’ from dom Dissent proposed instruction this rejected court dissenting: Judge, TASHIMA, Circuit in its following instruction the gave and III.B of Part from dissent respectfully I sur- under constant alien is an place: “If judg- from the opinion majority the when he officers by immigration veillance rejects Cruz-Escoto’s Part III.B ment. the entire United States the entered inade- jury instructions the that contention States, may he the United he is inside time defense. theory of the his covered quately theOn official restraint. from not be free and, our cases majority misconstrues The official did hand, immigration if an other the doctrine interprets consequently, the cross into Unit- Defendant not see the Al- narrowly. far too restraint” “official not would States, Defendant then the ed in Part acknowledges majority the though official under restraint.” be of the Channel geography that “the III.A crossing the bor- someone might prevent the precluded instruction The court’s in- will own free exercising his der from theo- considering Cruz-Escoto’s jury from the passes he until the United States side the defense, jurors credited the if ry of the 1086, inexpli- Maj. Op. at post,” permanent not see he did testimony that agent’s dis- its possibility this ignores it cably, bor- international the cross Cruz-Escoto jury requested of Cruz-Escoto’s cussion that be- argued had der. Cruz-Escoto re- instructions jury instructions. the Channel configuration cause al- have would by Cruz-Escoto quested agent is Patrol Border fact that a and the theory that his jury to consider the lowed to monitor there stationed permanently Channel,” including the “geography the [attempt- Channel, person “unless placed post, Patrol Border permanent past getting entry] succeeds ing restraint, if he was even under official him not person has post, Patrol] [Border But the border. seen the United freely entered successfully and actually given foreclosed jury instructions fact that The mere States.... theory of of Cruz-Escoto’s consideration not see post did at his patrol the case. the fence line crossing of the actual that a defendant law is settled “It in this case.... dispositive jury judge instruct have the entitled I majority, conclude to the Contrary case, provided theory of the his on the defense theory of that Cruz-Escoto’s founda has some by law and supported regarding the law accurately represents to instruct A failure in the evidence. tion if Even restraint. official from freedom cogniza factually legally jury upon Cruz- not see agent did Patrol Border er subject to harmless is not ble defense border, configuration Sarno, cross 73 Escoto analysis.” ror Border Cir.1995) (citations, permanent and the of the Channel 1470, 1485 placed Cruz- marks, location and brackets post Patrol quotation internal omitted). under Escoto into the United crossed he moment jury instruc- requested Therefore, apprehended. until he “[Wjhen alien at- that, stating tion have was entitled to enter tempts theory. consider may have eluded he fact that mere *11 1092
I disagree
majority’s
lar,
with the
assertion
the concept of “official restraint” is
that, under our jurisprudence, official re-
premised on “the theory that the alien is in
straint requires
government
that a
official
the government’s
custody
constructive
at
actually
crossing
witness the alien
the in-
physical
the time of
entry.”
F.2d
at
line,
boundary
ternational
if the
In Aguilar,
we held that the alien
away
occurs
port
from an
entry.
official
was not under continuous official restraint
majority
The
derives this rule
daily
because
visits to
by
her
home
fact
that
other Ninth Circuit cases deal-
undercover
a peri
over
ing with official restraint of aliens “sneak-
od of months did not amount to construc
ing
border,
across” the
the aliens were
tive custody over that
period.
entire
Id.
in the act
crossing.
observed
Maj.
See
Op.
Thus,
at
(citing
1085-86
States v.
touchstone of official restraint
Bello-Bahena,
(9th
411 F.Sd 1083
Cir.
is whether the alien was actually “free to
2005), and United States v. Castellanos-
go
large
and mix with the population.”
Garcia,
(9th Cir.2001)).
But concept custody, constructive official restraint appropriate our inquiry underlies govern restraint whether case law is not so limited. retains idea that an alien has effective control over the not successfully entered the alien. until Black’s country Law Dictionary Of. he is from official ed.2004) free restraint is rooted (defining custody as in the notion that an alien who is in con- “care and control of a thing person or government custody structive at all times inspection, preservation, or security” and has really “made in” to the United physical custody as “[cjustody person States. (such arrestee) as an whose freedom is directly limited”). controlled adopted
We first
the notion that
While it
entry
requires
“physical
presence
true
our
...
cases find that
accompa
even mo
by
nied
freedom
mentary
from official
freedom from government
restraint” in
control
Oscar,
suffices to
establish freedom from official
(9th Cir.1974) (citing
restraint,
United States v. Va
the controlling question remains
silatos,
(3d
Cir.1954);
F.2d 195
In re whether “an alien is able to exercise his
Dubbiosi,
(E.D.Va.1961)).
At the
physical
unique
The
to-
physical
the
apprehended,
was
Escoto
cases
this case from
distinguishes
Channel
govern-
of
degree
the
with
along
pography
Castellanos-
and
Bello-Bahena
such as
the area created
over
exerted
ment control
aliens discov
Garda,
held that
we
where
custody situation —without
a constructive
the border
from
only a short distance
ered
actually
agent have
the
necessity that
any
“free
entered
to have
be deemed
could
paint-
the
step over
watched
in
no
There was
official restraint.”
from
equiva-
is
The Channel
boundary line.2
ed
aliens’
the
cases
in those
dication
lit,
corridor
high-walled
brightly
ato
lent
been curtailed
movement had
of
freedom
border,
permanent
with
the
crossing
found
was
way. Bello-Bahena
any
end.
It
at
post
one
Patrol
Border
from the
a mile
brush”
“hiding in some
the
it enters
sides once
along both
fenced
1086; Castellanos-
border,
F.3d at
bank,3
the south
Along
States.
at
“walking north
was discovered
Garcia
inner
an
fence
fencing, with
double
there is
after
from the border”
yards
least
of
fence
an
height and
outer
15 feet
fence,
at
the border
having scaled
along the
runs
feet;
fence also
high
eight
cites these cases
majority
774. The
illumi-
Stadium-style lighting
north bank.
gov
who evade
that “those
proposition
the
sits
An
night.
at
the Channel
nates
the
crossing
observation while
ernment
of
bank
north
on the
vehicle
in a marked
from official
to be free
are deemed
border
Channel
monitoring the
the Channel
they
restraint,
of
distance
regardless
the
Thus, if
days a week.
day, seven
hours a
Maj.
entry
arrest.”
and
travel between
by mov-
the border
did cross
original).
in the
(emphasis
Op. at 1085-86
the
of
interior
fenced
within the
ing north
mistakenly fixated
has
majority
Again, the
all times within
Channel,
at
he was
observation
government
of
on the criterion
continuously-monitored
highly-controlled,
The
crossing.
moment of
precise
the
at
he
find that
justifiably
juryA
could
space.
con
in a
not
cases were
in those
aliens
restraint
government
effective
under
was
no
area,
there
indication
and
tained
of
by virtue
the United
while in
had
control
any form
constant
him
fencing around
high
mean
within the
United States
cases,
in”
"found
entry
not control
while
port of
1. The
1326(a)).
U.S.C.
ing of 8
key to official
illustrate
ling, also
con
is the criterion
Chan-
fence
alien,
is no
govern
border
There
continuous
2.
trol over
boundary is marked
the international
but
nel
alien enters
Where an
observation.
cement
across the
line
yellow painted
entry,
port
whether
country
anat
the Channel
When
border,
the Channel.
who
bottom
alien
airport
a land
an
of Cruz-Escoto’s
at the
dry,
it
time
as was
procedures is
government-designated
follows
readily visible across
crossing,
the line
restraint until
from official
free
not deemed
the Channel.
area,
width
inspection
because
she
customs
exits
thefport of
exit
"free to
she is not
until then
Channel enters
Immediately after the
large
with
‘go
mix
entry]
3.
toward
west
runs
it turns and
Ashcroft, 368
population.’ Sidhu
general
Pacific.
Cir.2004)
Cor
(quoting
(2d
Thornburgh, 901 F.2d
rea v.
Thus,
equivalent
virtual
is the
the Channel
1990));
v. Zavala-
United States
see also
Cir.
Mendez,
with a Border
under
a tunnel
Cir.
1120-21
tunnel
end of the
at the
agent stationed
who
Patrol
alien
2005)
(relying
the idea that
on
border.
side of the
emerges
the U.S.
on
station is
aat
presents herself
been exerted over them from the time
“from which there was no escape,” was no
they
longer
crossed the border until they were
under official restraint once he left
agents’
apprehended.
sight).
they
Since
were found
control
exercised over a natural gorge or an
border,
some
area
distance
this was
brush,
of thick
agents
even if
are stationed
sufficient to show that each had sufficient
immediately outside waiting
any
to catch
opportunity to “exercise his free will” free
*13
one
emerges,
who
nearly
does not
ap
control while within the
proach the tunnel-like configuration of the
However,
United States.
Bello-Bahena
Channel, where
agent con
and Castellanos-García do not establish a
fenced-in,
tinuously monitors a
well-lit
general rule
actual government
that
obser
space.
vation is
only
the
means
establishing
Thus, our case law supports
official restraint over an
Cruz-Esco-
alien who crosses
theory
to’s
Further,
of the defense.
the
surreptitiously. What remains
evidence
this
supported
case
theory.5
controlling
rule is whether the “alien is
The physical configuration of the Channel
able to exercise his free will subsequent to
and the location of the
per
Border Patrol
physical entry.” Aguilar,
Maj. Op. to de sufficient jury heard
“the from offi free that Cruz-Escoto
cide that was restraint,” id.
cial evi interpretation
only possible however, dis Unfortunately,
dence. pre which instruction gave an court
trict considering from even jury
cluded ac if the theory, even
Cruz-Escoto’s testimony.
cepted agent’s *14 deprived
Because Cruz-Escoto theory of present opportunity I jury, would reverse
the defense for and remand of conviction judgment dissent. respectfully I new trial. America, STATES
UNITED
Plaintiff-Appellee, VARTANIAN, Defendant-
Hagop
Appellant.
No. 05-10581. Appeals, Court Circuit.
Ninth 18, 2006. Oct. Submitted
Argued 28, 2007. Feb.
Filed M. Riordan, Donald Esq. and P.
Dennis San Horgan, & Esq., Riordan Horgan, defendant-appel- CA, Francisco, for lant. Cullers, Assistant E.
Mark Fresno, CA, plain- Attorney, for tiff-appellee. that I reason It is for this more shadows. are the Channel. within
across rejection of Cruz- majority’s however, agree testified, with is com- agent also acquittal his motion claim that Escoto's fence to scale mon for aliens granted. Channel, have been there should where along points other