United States District Court, D. Arizona
Douglas L. Rayes United States District Judge
the Court is Defendant's Motion for Judgment of
Acquittal. (Doc. 86.) The motion is fully briefed. For the
reasons below, the motion is denied.
22, 2016, after a jury trial, Defendant Marco Salomon-Macias
was found guilty of Attempted Reentry of a Removed Alien, 8
U.S.C. § 1326(a) and (b)(1). On August 19, 2016,
Defendant moved for judgment of acquittal pursuant to Fed. R.
Crim. P. 29, (Doc. 86), arguing that the evidence adduced at
trial was insufficient to prove beyond a reasonable doubt
that Defendant crossed into the United States with the
specific intent to enter the country free from official
trial, Border Patrol Agent (BPA) George Rodriguez testified
that on the morning of October 16, 2015, he was sitting in a
marked Border Patrol truck along the U.S.-Mexico border when
he saw Defendant climb over the border fence and walk
directly toward him. (Doc. 85 at 21.) Rodriguez drove toward
Defendant, and when they met, BPA Rodriguez got out of his
vehicle, identified himself, and began to question Defendant.
(Doc. 85 at 22.) According to BPA Rodriguez, Defendant
admitted that he jumped the border fence, that he knew it was
illegal to jump the fence, and that he did not have documents
allowing him to legally be in the United States.
(Id.) Rodriguez also testified that Defendant said
he was going to Yuma. (Id. at 24.) After Defendant
was apprehended and transported to the Yuma Border Patrol
Station, BPA John Brooks interviewed him. Agent Brooks also
testified that Defendant said he planned to travel to Yuma,
Arizona. Defendant signed an affidavit denying any fear or
concern about being returned to Mexico. (Doc. 87-1.)
Defendant testified at trial, he denied telling the agents
that he planned on travelling to Yuma, Arizona. He said that
he crossed the border out of fear because someone in Mexico
flashed a handgun at him. Defendant also stated that he asked
BPA Rodriguez for help. According to BPA Rodriguez's
testimony, Defendant did not tell him about an alleged
incident involving a gun or ask for assistance. (Doc. 85 at
Rule 29, the Court “must enter a judgment of acquittal
on any offense for which the evidence is insufficient to
sustain a conviction.” Fed. R. Crim. P. 29(a).
“The evidence is sufficient to support a conviction if
‘viewing the evidence in the light most favorable to
the prosecution, any rational trier of fact could have found
the essential elements of the crime beyond a reasonable
doubt.'” United States v. Milwitt, 475
F.3d 1150, 1154 (9th Cir. 2007) (quoting Jackson v.
Virginia, 443 U.S. 307, 319 (1979)).
Ninth Circuit has identified the elements of the crime of
attempted illegal reentry as:
(1) the defendant had the purpose, i.e., conscious desire, to
reenter the United States without the express consent of the
Attorney General; (2) the defendant committed an overt act
that was a substantial step towards reentering without that
consent; (3) the defendant was not a citizen of the United
States; (4) the defendant had previously been lawfully denied
admission, excluded, deported or removed from the United
States; and (5) the Attorney General had not consented to the
defendant's attempted reentry.
United States v. Gracidas-Ulibarry, 231 F.3d 1188,
1196 (9th Cir. 2000) (en banc); see also United States v.
Lombera-Valdovinos, 429 F.3d 927, 928 (9th Cir. 2005)
(“[b]ecause an alien has not ‘reentered'
unless he has done so free from official restraint, the
requirement of specific intent for this attempt crime means
that to be found guilty, a defendant must have the specific
intent to reenter free from official restraint.”). If a
defendant crosses the border with the intent only to be
imprisoned, it is impossible to convict the defendant for
attempted illegal reentry. Lombera-Valdovinos, 429
F.3d at 928. If a defendant intends to sneak into the country
and changes his plans only when he is spotted by border
patrol, however, he is guilty of the offense. Id. at
the evidence in the light most favorable to the prosecution,
the Court finds that rational jurors could have found that
Defendant climbed over the border fence to enter the United
States with the intent to travel to Yuma. Two witnesses
testified that Defendant admitted to them that was his
intent. Defendant's behavior was also inconsistent with
someone who feared for his life and was seeking protective
custody given that he casually walked toward Border Patrol-he
did not run and seek the help of BPA Rodriguez or report any
threats. (Doc. 87 at 5.) Defendant initially denied any fear
of returning to Mexico and presented no other evidence
tending to establish the credibility of having a handgun
“flashed” at him. Further, in light of the other
evidence, the fact that Defendant did not flee from arrest
does not lend credibility to his claim that he entered the
United States to avoid harm. Based on the testimony of both
Border Patrol agents that Defendant told them that he
intended to go to Yuma, and Defendant's own signed
affidavit denying any fear of being returned to Mexico, a
rational trier of fact taking the evidence in the light most
favorable to the prosecution could have found beyond a
reasonable doubt that the Defendant entered the United States
with the specific intent to be free from official restraint.
ORDERED that Defendant's Motion for Judgment of
Acquittal, (Doc. 86), is DENIED. Sentencing set for ...