United States v. Carmelo Bello-Bahena, United States of America v. Carmelo Bello-Bahena

Carmelo Bello-Bahena (“Bello-Bahena”) appeals his conviction and sentence for being a deported alien found in the United States in violation of 8 U.S.C. § 1326 (a). Bello-Bahena argues that 1) the district court erroneously denied his motion for judgment of acquittal because there was insufficient evidence to conclude that he was free from official restraint, 2) the district court erred in rejecting Bello-Bahe-na’s proposed jury instruction regarding official restraint, and 3) the district'court erred in refusing to dismiss the indictment for failure to allege certain elements of the offense. We have jurisdiction pursuant to 28 U.S.C. § 1291 , and we reverse and remand for a new trial.

I.

On March 6, 2003, United States Border Patrol Agent Esteban Rodriguez was performing line watch duties in Hagen’s Pond, a desolate area near the United States/Mexico border. At about 3:00 a.m., Agent Rodriguez received a radio alert from Agent Bruce Drake, who was operating a “night scope.” Drake told Rodriguez that he had observed a group of people heading north in the area. Drake then guided Rodriguez and two other agents to a location approximately one mile north of the border, where…