Cruz-Canseco

MEMORANDUM *

1. Cruz-Canseco was arrested on U.S. territory, and the prosecution presented evidence that the secondary fence did not prevent him from going at large within the country. Agent Maldonado testified that the general population can and does use the area between the fences for jogging and bicycling, E.R. 113, and that he had seen people run through gaps in the secondary fence, E.R. 146, and scale the fence by climbing its poles or a man-made ladder, E.R. 111.

The jury was properly instructed that being “effectively deprived of [one’s] liberty and prevented from going at large within the United States,” E.R. 303, constitutes official restraint. See United States v. Pacheco-Medina, 212 F.3d 1162, 1164 (9th Cir.2000) (quoting Ex parte Chow Chok, 161 F. 627, 630 (C.C.N.D.N.Y.), aff'd, 163 F. 1021 (2d Cir.1908)). The jury was entitled to find that Cruz-Canseco was not under physical restraint or constant surveillance, and thus to conclude that he was not under “official restraint” and had therefore “entered,” and was “found in,” the United States for purposes of 8 U.S.C. § 1326 .

2. The district court did not abuse its discretion under Fed.R.Evid. 403 in precluding…