United States v. Munoz-Peralta

97 F. App'x 719

Opinion

MEMORANDUM *

Defendant/Appellant Javier Munoz-Peralta “was not under constant observation by governmental authorities from the moment he set foot in this country until the moment of his arrest.” United States v. Ramos-Godinez, 273 F.3d 820, 825 (9th Cir.2001) (citation and internal quotation marks omitted). Munoz-Peralta crossed the border undetected, and the government was first alerted to the possibility that someone may have crossed the border when Munoz-Peralta triggered the sensor approximately 200 yards from the border. Additionally, the government tracked Munoz-Peralta by following his footprints. See United States v. Hernandez-Herrera, 273 F.3d 1213, 1219 (9th Cir.2001) (holding that a defendant is free from official restraint when “[pjersistent tracking, rather than visual surveillance, led to [the alien’s] apprehension”).

The district court properly declined to give an “official restraint” jury instruction, because the evidence did not support such a theory. See United States v. Castellanos-Garcia, 270 F.3d 773, 777 (9th Cir.2001). Likewise, the denial of MunozPeralta’s motion for acquittal was appropriate, because the government presented sufficient evidence from which a rational trier of fact could have concluded that Munoz-Peralta entered the United States free from official restraint. See Ramos-Godinez, 273 F.3d at 825; see also Hernandez-Herrera, 273 F.3d at 1218 (articulating the standard of review for a motion for acquittal).

AFFIRMED.

Footnotes

*

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.