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9th Circuit: Flawed mens rea instruction and insufficient evidence in illegal reentry case

United States v. Vazquez-Hernandez, — F.3d —, 2017 WL 836074 (9th Cir. Mar. 3, 2017): District court plainly erred by failing to instruct jury that reentry defendant must have had intent to enter the U.S. “free from official restraint,” and evidence was insufficient to prove that element

You can’t be sorta deceased. You can’t be kinda pregnant. But can you be unlawfully in the United States-ish?

Well, kinda.

Consider the Mariposa port of entry on the U.S.-Mexico border in Nogales, Arizona. The U.S. inspection station is about 100 yards north of the actual border. Almost every day, Rosario Vazquez-Hernandez went into this pre-inspection piece of U.S. territory to wash car windows for tips. One day Border Patrol agents decided he showed signs of planning to bolt up the southbound lanes and around the inspection station into the U.S. They arrested Mr. Vazquez (who had been deported from the U.S. previously) and charged him with attempted illegal reentry. At his trial, the government argued that to convict, the jury had only to find that Mr. Vazquez intended to illegally enter the pre-inspection area. And the jury instructions seemed to validate this theory, because they did not state the government had to prove that Mr. Vazquez intended to enter the U.S. “free from official restraint,” as Ninth Circuit caselaw requires. This omission was plain error, because the pre-inspection area at Mariposa — a small zone surrounded by walls, Border Patrol agents, and hundreds of surveillance cameras — is decidedly not an area “free from official restraint.” Moreover, the evidence that Mr. Vazquez actually intended to penetrate into the U.S. beyond the pre-inspection area was too weak to permit any reasonable jury to find this element proven beyond a reasonable doubt. The panel accordingly reversed Mr. Vazquez’s conviction and remanded for the entry of a judgment of acquittal.

(Congratulations to Henry L. Jacobs of Tucson, Arizona.)

(Dan Kaplan is an Assistant Federal Public Defender in Phoenix, Arizona.)