9th Cir.;
15-50273

The court of appeals reversed a judgment of conviction and remanded. The court held that the district court prejudicially misinstructed the jury regarding the meaning of specific intent to enter the U.S. “free from official restraint.”

Jesus Castillo-Mendez was tried before a jury on a charge of attempted illegal reentry, in violation of 8 U.S.C. §1326(a), (b). One of the elements the government needed to prove was that Castillo-Mendezt specifically intend to reenter the United States free from official restraint. At trial, Castillo-Mendez argued that he lacked such intent, and crossed over the border with the sole intent to free himself from smugglers he believed would harm him. He testified that knew that he would be caught by border patrol agents, and intended to surrender to them. The border patrol agent who apprehended Castillo-Mendez testified that he made no attempt to run or resist arrest and was cooperative in answering her questions. During deliberation, the jury, apparently confused with respect to the meaning of specific intent to enter free from official restraint, asked the district court for clarification. In response, the district court instructed the jury that for an alien to be under official restraint, he “must be under continuous governmental observation or surveillance…[but] need not be aware that he's under surveillance.” Castillo-Mendez was found guilty.