Ballesteros-Castro

ORDER

This case is submitted for decision as of December 12, 2000.

MEMORANDUM

Defendant-appellant Eduardo Balleste-ros-Castro (“Ballesteros”), a citizen of *699 Mexico, was convicted following a jury trial of illegal reentry after deportation in violation of 8 U.S.C. § 1326 (a). Ballesteros argues that the district court erred, first, in failing to instruct the jury that it was necessary to find that his reentry into the United States was voluntary and, second, in denying his motion for judgment of acquittal based on insufficiency of the evidence.

The only element contested by the defendant is the government’s evidence concerning the voluntariness of his reentry. Even at the time briefs were filed, there was no clear statement by this court as to the necessity of proving voluntariness as an element of the offense under § 1326. However, with the issuance of United States v. Quintana-Torres, 235 F.3d 1197 (9th Cir.2000), it is now clear that “the voluntariness of the return is an element of the crime and, as such, must be proved beyond a reasonable doubt by the prosecution.” Id. at 1200 . Therefore, Ballesteros’ conviction must be reversed unless the district court’s failure…