US v. Bello-Bahena

No. 04-50013 (6-15-05). In another "official restraint" case, and in another defense win, the 9th reverses a 1326 conviction. This reversal though was not for a judgment of acquittal but for the failure of the court to give an "official restraint" instruction that comported with the law and theory of defense. Here, defendant was observed in a group of seven by one border agent in his scope. The agent told another agent that he saw the group and ha them under surveillance. The first agent didn't testify but the second did. It was unclear whether the first agent had always had the defendant under surveillance, which is a requirement for the "official restraint" defense in a "found in" prosecution. This evaded a Rule 29 judgment of acquittal. However, there was evidence that he might have been, and so the instruction crafted by the defendant should have been given. (Note: the instruction is a good one and can be used as the gold standard).
Congrats to AFPD Ramzi Nasser of San Diego for the win.