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                                                     No. 99-50414
                                                     D.C. No.

Appeal from the United States District Court
for the Southern District of California
Judith N. Keep, Chief District Judge, Presiding

Argued and Submitted
April 13, 2000--Pasadena, California

Filed May 16, 2000

Before: Ferdinand F. Fernandez and Kim McLane Wardlaw,
Circuit Judges, and Charles R. Weiner, 1 District Judge.

Opinion by Judge Fernandez



Tony L. Cheng, Federal Defenders of San Diego, Inc., San
Diego, California, for the defendant-appellant.

Roger W. Haines, Assistant United States Attorney, San
Diego, California, for the plaintiff-appellee.



FERNANDEZ, Circuit Judge:

Alejandro Pacheco-Medina appeals his conviction and sen-
tence for being found in the United States after he had been
deported. See 8 U.S.C. S 1326. He claims that the evidence
will not support the conviction because it shows that he did
not actually manage to enter the United States. We agree and
reverse for entry of an acquittal.


There can be little doubt that Pacheco was deported from
the United States on December 7, 1998.2  There is no doubt
whatsoever that he was caught on his way back into the
United States just two days later.

On December 9, 1998, Pacheco and two others began
climbing the international boundary fence that separates the
United States from Mexico. On this side of the border was the
parking lot of the United States Customs compound. A sur-
veillance video camera detected them as they scaled the fence,
and the monitor immediately contacted Border Patrol Agent
Dionicio Delgado, who was on bike patrol at the time. Within
a matter of seconds Agent Delgado responded to the call. He
arrived at the lot just as the three landed. They dropped off the
fence and were crouched in preparation for escape into the
country at large.

Pacheco's two companions were nabbed immediately, but
Pacheco ran by the agent, who instantly gave chase. Pacheco
2 Pacheco raises a number of issues besides sufficiency of the evidence.
Among them is a claim that his expedited removal was improper and can-
not serve to sustain a S 1326 conviction. Others include attacks on the dis-
trict court's discovery, evidentiary and sentencing rulings. In light of our
disposition of the primary claim, we need not and do not decide those.


never left the agent's sight except for a split second as he
rounded a corner, and within a few yards of the border3 he
was captured and taken into custody. Thereafter, he admitted
many of the elements of the crime.

At trial, Pacheco moved for an acquittal. See Fed. R. Crim.
P. 29. He claimed that because he was never free from official
restraint, in legal contemplation he had not even entered the
United States. The district court disagreed, he was convicted
and sentenced, and this appeal ensued.


The district court had jurisdiction pursuant to 18 U.S.C.
S 3231. We have jurisdiction pursuant to 28 U.S.C. S 1291.

We review the denial of a motion for acquittal under Fed-
eral Rule of Criminal Procedure 29 de novo. See United
States v. Neill, 166 F.3d 943, 948, (9th Cir.), cert. denied, 526
U.S. 1153, 119 S. Ct. 2037, 143 L. Ed. 2d 1046 (1999). "Con-
sequently, this court must review the evidence presented
against the defendant in the light most favorable to the gov-
ernment to determine whether `any rational trier of fact could
have found the essential elements of the crime beyond a rea-
sonable doubt.' " Id. (citation and some internal quotation
marks omitted).


As we begin to consider whether Pacheco committed a
crime, we do so with the knowledge that he was an alien, he
had been removed from the country, and he had again, just
two days later, set foot on United States soil. It is also clear
that it is a crime for an alien to enter, attempt to enter, or "at
any time [be] found in" the United States after having once
3 At one point, Delgado said five yards, but then he said fifteen to twenty
yards. At any rate, Pacheco did not get far.


been deported from this country. 8 U.S.C. S 1326(a). Thus, a
general reading would suggest that Pacheco did commit the
crime because he surely left Mexico for the United States, and
he just as surely was found on our soil after he came over the
border fence. But as a matter of law it is not quite that easy
because physical presence is not enough. That is most clearly
shown in the concept of "entry," a concept which has a long
judicial history. As the Supreme Court has pointed out, "[t]he
definition of `entry' as applied for various purposes in our
immigration laws was evolved judicially." Rosenberg v.
Fleuti, 374 U.S. 449, 453, 83 S. Ct. 1804, 1807, 10 L. Ed. 2d
1000 (1963). The definition did not enter the immigration
statutes until 1952. See id.

The notion was expressed in a 1908 case where aliens had
crossed the border and proceeded for a quarter of a mile along
railroad tracks, but had been under the surveillance of border
inspectors from before the time they crossed until their actual
physical capture. See Ex parte Chow Chok, 161 F. 627, 628-
29, (N.D.N.Y.), aff'd, 163 F. 1021 (2d Cir. 1908). The court
said that the aliens had not entered at all. On the contrary:

      They were not `permitted to enter,' or allowed to
      enter, within the meaning and intent of the law.
      `Enter' means more than the mere act of crossing the
      border line. Those who seek to enter in the sense of
      the law, and those the policy of the law seeks to pre-
      vent from entering, are those who come to stay per-
      manently, or for a period of time, or to go at large
      and at will within the United States. These persons,
      on entering, were at once surrounded by officers,
      silently taken in charge, in effect arrested, and from
      that time effectually deprived of their liberty and
      prevented from going at large within the United

Id. at 630; see also Zhang v. Slattery , 55 F.3d 732, 754-55 (2d
Cir. 1995); Correa v. Thornburgh, 901 F.2d 1166, 1171-72


(2d Cir. 1990). The theme has been repeated by the Board of
Immigration Appeals. See Matter of Pierre, 14 I. & N. Dec.
467 (1973). In that case, the BIA made it clear that, as rele-
vant here, before he can be said to have entered, an alien must
be free from restraint. See id. at 468. More particularly, "[t]he
restraint may take the form of surveillance, unbeknownst to
the alien; he has still not made an entry despite having crossed
the border with the intention of evading inspection, because
he lacks the freedom to go at large and mix with the popula-
tion." Id. at 469. The theme has also been used by other cir-
cuits. See Yi Yang v. Maugans, 68 F.3d 1540, 1549-1550 (3d
Cir. 1995); United States v. Kavazanjian, 623 F.2d 730, 736-
37 (1st Cir. 1980).

In a trilogy of cases, we have found that leitmotif running
through S 1326, and in so doing have composed the rule that
resolves the case now before us. The first of those cases
involved a defendant who was convicted of aiding and abet-
ting aliens to enter the United States. See United States v.
Oscar, 496 F.2d 492, 493 (9th Cir. 1974).

In Oscar, we reversed because, as we said, the government
had to prove that the aliens in question did enter before it
could hold Oscar responsible for an entry. See id. at 493-94.
We recognized that the aliens had crossed the international
border and had, therefore, set foot in this country, but that, we
said, was not enough because they had never managed to get
past secondary inspection. See id. at 493. We pointed out that
the concrete fact of entry did not suffice because as a legal
matter " `entry' . . . has not been accomplished until physical
presence is accompanied by freedom from official restraint."
Id. As it was, the aliens did not enter at all "because they were
never free from the official restraint of the customs officials
at the San Ysidro Port of Entry." Id.

We returned to the area in United States v. Martin-
Plascencia, 532 F.2d 1316 (9th Cir. 1976). There an intrepid
alien, who was "out of the view of the immigration officials,"


managed to get through one fence and then through another
one without detection. Id. at 1317. He found himself within
the United States, but fifty yards later he encountered a con-
crete wall which separated the port of entry area from the
streets of San Ysidro. As he tried to scale that wall, he was
finally detected and arrested.4See id. We upheld the juvenile
adjudication based upon his illegal entry because, as we said,
he "was at no instant up until the moment of his arrest under
any type of official restraint, but to the contrary was exercis-
ing his free will, youthful enterprise, and physical agility in
evading fixed physical barriers in accomplishing his entry."
Id. That freedom from official restraint while he was on our
soil distinguished Martin's case from Oscar's.

[1] We took the question up again when a defendant
claimed that undercover surveillance was enough to keep an
alien under official restraint for the seven months after she
illegally crossed the border into the United States. See United
States v. Aguilar, 883 F.2d 662 (9th Cir. 1989). We disagreed.
No doubt the illegal smuggling movement of which Aguilar
was a part had been penetrated by government agents, who,
therefore, knew of the entry of the alien. But those agents
were not with the alien, nor were they watching her, at all
times. We accepted the doctrine of official restraint, but
declared that under it "an alien must be under official restraint
at all times during and subsequent to physical entry." Id. at
682-83. "The doctrine is premised on the theory that the alien
is in the government's constructive custody at the time of
physical entry. By contrast, when an alien is able to exercise
his free will subsequent to physical entry, he is not under offi-
cial restraint." Id. at 683. Thus, while a government under-
cover agent did make visits to the alien's home,"brief visits"
were insufficient to constitute official restraint because they
"were insufficient to prevent her from escaping. " Id. Simi-
larly, where immigration officials knew that another group of
4 He was 14 or 15 years old, and it was his 51st arrest for immigration
law violations. See id. at 1317.


aliens would enter the country, but did nothing to observe or
stop the group, its members were not under official restraint.
See id. at 684. "The aliens were not subject to constant sur-
veillance subsequent to their initial physical entry." Id. The
defendants' assertions, therefore, failed because the aliens
were not in the visual or physical grasp of the authorities at
all times. Thus, their situation was quite unlike Oscar's. Had
the aliens been under constant observation, the result would
have been different. Their situation was also quite unlike
Pacheco's. He was under constant and close surveillance and
had no hope of escaping into the general population of the
United States. He was observed by government agents as he
began his attempt to cross the border, and he never left their
sight. In fact, just as he dropped onto our soil an agent was
physically on the scene to seize him. His two companions
were seized by two other agents, who also arrived immedi-
ately. It is true that Pacheco made a desperate attempt to get
away, but he was caught within seconds. He was in the
clutches of the authorities the whole time and had no opportu-
nity to get free of them.5 The government says that he tried
to get into the country. Be it so. Nonetheless, he did not suc-
ceed. He was precluded from doing so because he was under
official restraint the whole time.

In short, on the facts of this case, the conclusion that
Pacheco did not "enter" the United States is ineluctable. The
almost-century-old case of Chow Chok so indicates; the BIA's
approach so indicates; the other circuits so indicate; and our
cases so indicate. But wait a minute, says the government, this
case is distinguishable because Pacheco was convicted of
being "found in" the United States, and not of entry as such.
As we will discuss, that argument is little more than an
amphilogism, which exploits the slight ambiguity of the
"found in" concept versus the "entry" concept.
5 It is true that during his brief run he had not yet been seized for consti-
tutional purposes. See California v. Hodari D. , 499 U.S. 621, 629, 111
S. Ct. 1547, 1552, 113 L. Ed. 2d 690 (1991). That does not mean that he
was free from official restraint for S 1326 purposes.


[2] No doubt courts have made it clear that S 1326 sets
forth three distinct offenses: "enter," "attempt to enter," and
"found in." See United States v. Hernandez , 189 F.3d 785,
789 (9th Cir. 1999); United States v. Santana-Castellano, 74
F.3d 593, 597 (5th Cir. 1996); United States v. Rodriguez, 26
F.3d 4, 8 (1st Cir. 1994). But the courts have not been so
benighted as to think that a person could be found in the
United States if he had never entered at all. In fact, it is diffi-
cult to speak of one concept without entangling it in the other.

[3] In Chow Chok, 161 F. at 630, for example, the court
expressed the view that "[i]t cannot logically be said that [the
aliens] are Chinese persons found unlawfully in the United
States . . . . Logically, they are Chinese persons seeking to
enter the United States . . . ." That seems so. Other courts
have been more emphatic. We have said that a "found in"
conviction "necessarily requires that a defendant commit an
act: he must re-enter the United States without permission . . .
after being deported." United States v. Ayala , 35 F.3d 423,
426 (9th Cir. 1994); see also Hernandez, 189 F.3d at 789. The
Eleventh and Eighth Circuits have, essentially, agreed,
although they have not said that the entry itself must have
been illegal. See United States v. Castrillon-Gonzalez, 77 F.3d
403, 406 (11th Cir. 1996); United States v. Diaz-Diaz, 135
F.3d 572, 576 (8th Cir. 1998). On the other hand, the Second
Circuit has gone somewhat further. It has held that,"[t]o the
extent that S 1326(a) makes it a crime to be`found in' the
United States, that provision is the practical equivalent of
making unlawful `entry' a continuing offense until at least
such time as the alien is located." United States v. Rivera-
Ventura, 72 F.3d 277, 282 (2d Cir. 1995).

[4] We, therefore, reject the argument that because proof of
the crime of "entry" is not needed to prove the crime of
"found in," cases involving the former do not irradiate the lat-
ter. We, instead, hold that the concept of entry not only illu-
minates but also is embedded in the "found in " offense. No
doubt, an entry, as defined legally, is required before a person


can be guilty of the crime of entry. By the same token, it logi-
cally follows that an entry, as defined legally, is required
before a person is "found in" the United States. To put it
another way, it is apodictic that Pacheco cannot have been
found in a place he did not succeed in entering. He never once
got himself into our free air; he was, rather, under official
restraint the whole time because he was found before he got

In a last attempt to save the day, the government glissades
to an irrelevancy. It asserts that IIRIRA6  has changed the defi-
nitions in the Immigration and Nationality Act, and that
instead of defining entry the INA now defines the term "ad-
mission." 8 U.S.C. S 1101(a)(13)(A). Just why that should
matter at all is far from clear. The new definition itself speaks
of "entry" as do many other parts of the INA. See, e.g., 8
U.S.C. SS 1101(a)(13)(C), 1326. It certainly does not change
the preexisting, and still existing, judicial development of
what an entry is.7


[5] Pacheco was removed from this country and attempted
to reenter just two days later. His persistence is impressive,
although perhaps Pacheco is a mere epigone compared to
Martin (51 immigration arrests by age 15). At any rate, his
attempt to return resulted in good news and bad news for him.
The bad news was that, because he was never free from offi-
cial restraint, he did not get in. The good news was that,
because he was never free from official restraint, he did not
6 Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L.
104-208, S 301(a), 110 Stat. 3009 (1996).
7 The old statutory definition declared that an entry was "any coming of
an alien into the United States . . . ." 8 U.S.C.S 1101(a)(13)(A) (1996).
The elimination of that statement can have no significance here. Again,
the meaning was developed long before the definition was spelled out in
the INA. See Fleuti, 374 U.S. at 453, 83 S. Ct. at 1807. There is no reason
for it to end simply because the definition no longer appears there.


commit the crime of being found in the United States. There-
fore, a judgment of not guilty must be entered.