US v. Lombera-Valdovinos
No. 04-50390 (11-30-05). This raises the "official restraint" defense to an attempted reentry under 1326. This defense is basically that one can't be convicted of reentering if he is not at liberty to reenter because he is effectively under gov't surveillance or control when he tries to come in. It has been used for some time (and the FPD in the Southern District has made some excellent law). Here, in a twist, the defendant was spied standing across the border, and 15 seconds later, the gov't agent sees the defendant walking toward him. The defendant gets to the agent, and announces that he wants to go back to prison. The 9th holds that a Rule 29 should have been granted for the 1326 because the gov't presented no evidence that the defendant entered the country free of official restraint (the specific intent element). The gov't argues, and it was taken up in Rymer's dissent, that it was a ploy by the defendant who knew the jig was up. The only problem, and one defense frequently encounters, is that there was no evidence presented of this.