US v. Zavala-Mendez,

No. 03-30321 (6-15-05). This is a 1326 case, where the defendant presented himself at a border crossing in Alaska, lied about a green card, but gave his true name, and was found to have been previously deported. The gov't charged him with being "found in" the US. This was wrong. He should have been charged with "attempt to enter" and as such, his Rule 29 motion should have been granted. The defendant's car was observed by the border patrol as it drove from the Yukon territory to the US on the Alaskan highway. The headlights were observed, although the car itself dipped out of sight in a depression. The 9th (Kleinfeld) explained that the "official restraint" or "surveillance cases", where the defendant is constantly observed, is not they proper line, but rather it should be the presentation cases, such as an airport, where the defendant presented himself at the entry station "attempting" to get in. He wasn't sneaking or fence jumping; he was presenting himself. Hall dissents, arguing that once the defendant sets foot in the US, he is "found in" the US unless he was under constant surveillance by officials. This wasn't the case here because of the disappearance of the car.
Congrats to AFPD Kevin McCoy of Alaska or the win.