United States v. Efrain Ibarra-Flores

MEMORANDUM

Efrain Ibarra-Flores (“Ibarra-Flores”) appeals from his conviction of being an alien who had been excluded, deported, or removed from the United States and thereafter enters, attempts to enter, or is found in the United States in violation of 8 U.S.C. § 1326 (a).

At trial, Ibarra-Flores requested that the trial court instruct the jury that an alien is a person who is not a natural-born, naturalized, or derivative citizen, and that derivative citizenship means citizenship derived from that of another, such as a parent. The district court denied the request, relying on United States v. Espinoza-Baza, 647 F.3d 1182, 1192 (9th Cir.2011) (holding that a suggestion of uncertainty as to the defendant’s mother’s citizenship was not sufficient to put the derivative citizenship defense at issue so as to warrant an instruction on that theory).

A criminal defendant has a right to have the jury instructed according to his theory of the case, provided that the requested instruction is supported by law and has some foundation in the evidence presented at trial. United States v. Bello-Bahena, 411 F.3d 1083, 1088-89 (9th Cir.2005). We review de novo whether an instruction is…