United States v. Alejandro Hernandez

MEMORANDUM

Defendant-appellant Alejandro Felix Hernandez (“Hernandez”) appeals his conviction of attempted reentry after deportation without permission in violation of 8 U.S.C. § 1326 . We have jurisdiction under 18 U.S.C. § 1291 . Hernandez argues, inter alia, that the district court improperly conditioned his constitutional right to present a defense on his surrender of his right not to testify. We agree. Because we conclude that the district court’s ruling requiring Hernandez to testify in order to present any evidence regarding his mistake of fact defense was plain error, we vacate Hernandez’s conviction and remand to the district court for a new trial.

Hernandez’s only defense at trial was that he made a mistake of fact as to whether he had permission to reenter the United States. In support of this defense, Hernandez sought to introduce an unexpired permanent residence card issued in his name, which he claimed he recently discovered before reentering and thought was newly issued. He also sought to introduce corroborating testimony of his wife and son regarding the discovery of the permanent residence card and Hernandez’s belief that it granted him permission to reenter the…