US v. Castillo-Mendez, No. 15-50273 (8-21-17)(Paez w/Reinhardt & Tashima). The 9th reverses an attempted illegal reentry conviction and remands for a new trial due to an erroneous supplemental jury instruction on the requisite mental state.  Specifically, the defendant raised an "official restraint" defense, arguing that he only came across the border because of fear that smugglers, who were watching, would harm him.  He intended to turn himself in.  The government presented evidence that he was actually hiding.  The jury asked "what the definition of official restraint was?" The court then defined it and what it meant.  This was error.  The court should have explained that the government must prove specific intent to enter free from official restraint.  If the jury then asks for clarification, the court should explain that official restraint is only relevant as part of the defendant's mens rea, and defined from the attempted reentry cases.  The definition could read: "you must find that the defendant had the specific intent to enter free from official restraint, which means to enter without being detected, apprehended, or prevented from going at large within the United States and mixing with then population." (p. 19)

This opinion presents a good overview of the "official restraint" doctrine, and the distinction between "being found in" and "attempted to reenter."

The decision is here:

http://cdn.ca9.uscourts.gov/datastore/opinions/2017/08/21/15-50273.pdf