Mendoza-Sandoval

MEMORANDUM *

United States Border Patrol Agents Colon-Escobar and Viera apprehended Ap *60 pellant Efren Mendoza-Sandoval near Naco, Arizona. The government charged him with illegal re-entry after deportation and the case proceeded to trial. Mendoza-Sandoval sought certain jury instructions as part of his defense, but the district court declined to give them. The district court also allowed re-direct examination testimony that Mendoza-Sandoval believes was improper, and denied his motion for mistrial absent a curative instruction regarding this testimony. Mendoza-Sandoval appeals these decisions. We have jurisdiction pursuant to 28 U.S.C. § 1291 . We affirm.

We review the denial of a defendant’s jury instruction due to an inadequate factual basis for an abuse of discretion, see United States v. Wills, 88 F.3d 704, 715 (9th Cir.1996) (citation omitted), but review de novo the denial of a jury instruction based on a question of law, United States v. Wiseman, 274 F.3d 1235, 1240 (9th Cir.2001) (citation omitted). We review a district court’s denial of a motion for mistrial for an abuse of discretion. See United States v. Hagege, 437 F.3d 943, 958-59 (9th Cir.2006) (citation…

dissenting.

I dissent with regard to one issue: I would hold that the instruction regarding official restraint should have been given, as there was some evidence, albeit weak, to support the defense theory. See United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir.1984) (holding that a defendant is entitled to a jury instruction if there is “some foundation in the evidence” to support his defense).

The evidence showed that (1) the cameras at the Naco station were designed to scan the border, routinely recorded aliens crossing the border, and could see well into Mexico; (2) Agent Kawecki had personally observed undocumented immigrants crossing the border on the camera system; (3) there were three agents other than Kawecki monitoring the cameras on the night that Mendoza-Sandoval was arrested; and (4) in Kawecki’s opinion, it was not just “possible” but “more than likely” that agents witnessed at least one group cross the border that night.

Given this evidence, the only distinction between this case and United States v. Bello-Bahena, 411 F.3d 1083 (9th Cir. 2005), is that Kawecki specifically claimed not to have seen the defendant cross the border, whereas the agent in…