United States v. Rafael Cruz-Escoto

Rafael Cruz-Escoto appeals his jury conviction and sentence for being a deported alien found in the United States without permission, in violation of 8 U.S.C. § 1326 . He presents six arguments on appeal: (1) the evidence was insufficient to support the verdict; (2) the district court improperly instructed the jury; (3) the district court violated his Fifth and Sixth Amendment rights by excluding the testimony of an impeachment witness; (4) the introduction of evidence that he twice illegally entered the United States violated Federal Rules of Evidence 401, 403, and 404(b); (5) the government violated Batson v. Kentucky, 476 U.S. 79 , 106 S.Ct. 1712 , 90 L.Ed.2d 69 (1986); and (6) the district court impermissibly increased his sentence above the statutory maximum. We AFFIRM.

I. BACKGROUND

In 2004, Border Patrol Agent Jason Viau conducted surveillance of an area along the Mexico-United States border known as the “Channel.” The Channel, located in California just north of Tijuana, is a cement river bed that runs north from Mexico into the United States, where it eventually empties into the Pacific Ocean. There are no fences where the Channel enters into the United States; 1…

dissenting:

I respectfully dissent from Part III.B of the majority opinion and from the judgment. Part III.B rejects Cruz-Escoto’s contention that the jury instructions inadequately covered his theory of the defense. The majority misconstrues our cases and, consequently, interprets the doctrine of “official restraint” far too narrowly. Although the majority acknowledges in Part III.A that “the geography of the Channel might prevent someone crossing the border from exercising his own free will inside the United States until he passes the permanent post,” Maj. Op. at 1086, inexplicably, it ignores this possibility in its discussion of Cruz-Escoto’s requested jury instructions. The jury instructions requested by Cruz-Escoto would have allowed the jury to consider his theory that the “geography of the Channel,” including the permanent Border Patrol post, placed him under official restraint, even if he was not seen crossing the border. But the jury instructions actually given foreclosed consideration of Cruz-Escoto’s theory of the case.

“It is settled law that a defendant is entitled to have the judge instruct the jury on his theory of the case, provided that it is supported by law…

476 F.3d 1081 UNITED STATES of America, Plaintiff-Appellee, v. Rafael CRUZ-ESCOTO, Defendant-Appellant. No. 05-50892. United States Court of Appeals, Ninth Circuit. Argued and Submitted October 24, 2006. Filed February 23, 2007. Martha M. Hall, San Diego, CA, for the defendant-appellant. Carol C. Lam, United States Attorney, Roger W. Haines, Assistant United States Attorney, Mark R. Rehe, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; Marilyn L. Huff, District Judge, Presiding. D.C. No. CR-04-02255-MLH. Before EUGENE E. SILER, JR., * A. WALLACE TASHIMA, and CARLOS T. BEA, Circuit Judges. SILER, Circuit Judge. 1 Rafael Cruz-Escoto appeals his jury conviction and sentence for being a deported alien found in the United States without permission, in violation of 8 U.S.C. § 1326 . He presents six arguments on appeal: (1) the evidence was insufficient to support the verdict; (2) the district court improperly instructed the jury; (3) the district court violated his Fifth and Sixth Amendment rights by excluding the testimony of an impeachment witness; (4) the…