Garcia-Sanchez

MEMORANDUM *

Appellant Santos Garcia-Sanchez challenged his conviction on the basis that *649 Agent Reed’s grand jury testimony was excluded. That testimony supported the trial defense that Garcia-Sanehez was under constant surveillance (“official restraint”) as defined by our decision in United States v. Pacheco-Medina, 212 F.3d 1162, 1164-66 (9th Cir.2000), during his attempted illegal entry into the United States. See 8 U.S.C. § 1326 (a).

However, the circumstances of Garcia-Sanchez’s capture do not fall within our definition of “official restraint.” Garcia-Sanchez eluded the Border Patrol upon his entry, and was found only after a government agent located and followed his footprints. Because his arrest was effected by “[pjersistent tracking, rather than visual surveillance,” Garcia-Sanchez was not under “official restraint” when he entered the United States. United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir.2001). Garcia-Sanchez’s “counter-evidence” was based on a mistaken assumption that could not be verified. Accordingly, any error, whether evidentiary or constitutional, in excluding the grand jury testimony of Border Patrol Agent Reed was…