US v. Vazquez-Hernandez, No. 15-10009 (3-3-17)(Sessions, D.J., w/Gould & Berzon). The 9th finds plain error in a jury instruction, and then enters a judgment of acquittal for attempted illegal entry.

The defendant makes a living washing car windows at the Mariposa POE in Nogales. He has had prior illegal entries, but for the past several years, morning, noon, and night, day after day, he plies his trade as the cars line up.  The configuration of the POE is such that Border Patrol allows such tradespeople, including those selling wares, to enter into a pre-inspection area, which is US territory.  As the 9th observes, there are hundreds of cameras and many armed agents.

Periodically, the Border Patrol sweeps the area, and clears out the people, who flee back to Mexico. In this particular sweep, he was nabbed.  In this instance, according to the vigilant Border Patrol, the defendant had been looking longingly to the US, seemed unusually attentive, and had appeared to want to reentry.   

Charged with attempted illegal reentry, the defendant argued that he was under "official restraint" when he came to the pre-inspection area.  He and others always fled back to Mexico.  The government therefore failed to show that he intended to remain in the United States.  The court's instruction did not contain this crucial element--the intent to remain-- important here given the facts, and the specific intent requirement of attempted illegal reentry together with official restraint.  The jury asked a question that displayed confusion on this very point.  The failure of the court thus to so instruct was plain error.

As for the judgment of acquittal, the defendant was nabbed in the pre-inspection area, where he was observed.  He previously fled back to Mexico when the sweeps came.  The government's evidence that the defendant intended to go northward, and remain in the US, was exceedingly weak.  The 9th concludes that no rational trier of fact could find the defendant guilty beyond a reasonable doubt.

Congrats to Henry Jacobs, CJA on the Az Tucson panel.  A very nice win!

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/03/03/15-10009.pdf