The Ninth Circuit Court of Appeals today released an opinion in USA v. CRUZ-ESCOTO, No. 05-50892, a criminal appeal. The panel consisted of Eugene E. Siler, Jr., A. Wallace Tashima, and Carlos T. Bea, Circuit Judges.
SILER, Circuit Judge:
Rafael Cruz-Escoto appeals his jury conviction and sentence for being a deported alien found in the United States . . .
TASHIMA, Circuit Judge, 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 2056, 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 and has some foundation in the evidence. A failure to instruct a jury upon a legally and factually cognizable defense is not subject to harmless error analysis.” United States v. Sarno, 73 F.3d 1470, 1485 (9th Cir. 1995) (citations, internal quotation marks, and brackets omitted). Cruz-Escoto requested a jury instruction stating that, “[W]hen an alien attempts to enter the United States, the mere fact that he may have eluded the gaze of law enforcement, or eluded arrest, for a brief period of time after having come upon United States territory is insufficient, in and of itself, to establish `freedom from official restraint.’ ” The district court rejected this proposed instruction and gave the following instruction in its place: “If an alien is under constant surveillance by immigration officers when he entered the United . . .