United States v. Cruz-Canseco

119 F. App'x 109

Opinion

MEMORANDUM

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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 Cruz-Canseco from cross-examining Agent Ramirez regarding his grand jury testimony, because the excluded evidence did not have substantial probative value. Nor did the exclusion of this testimony violate the Confrontation Clause, since it did not prejudice CruzCanseco. See United States v. Shabani, 48 F.3d 401, 403 (9th Cir.1995).

3. The district court also did not abuse its discretion in allowing the government to present Cruz-Canseco’s fingerprint card and documents from his alien file. This other acts evidence was admissible under Fed.R.Evid. 404(b), since it tended to prove more than mere propensity, see United States v. Castillo, 181 F.3d 1129, 1134 (9th Cir.1999), and its probative value was not substantially outweighed by the danger of unfair prejudice, see Fed. R.Evid. 403.

4. Agent Maldonado’s testimony about the location of the border, which was lay opinion testimony, not hearsay or expert opinion testimony, was properly admitted. See Fed.R.Evid. 701.

5. Because Cruz-Canseeo was properly convicted, the court did not err in revoking his supervised release from his previous illegal reentry.

AFFIRMED.

This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.