United States v. Moreno-Bonilla ( 1999 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 99-4332
ROBERTO MORENO-BONILLA,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Maryland, at Baltimore.
Alexander Williams, Jr., District Judge.
(CR-98-455-AW)
Submitted: November 23, 1999
Decided: December 28, 1999
Before WILKINS and NIEMEYER, Circuit Judges,
and BUTZNER, Senior Circuit Judge.
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Affirmed by unpublished per curiam opinion.
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COUNSEL
James Wyda, Federal Public Defender, Daniel W. Stiller, Assistant
Federal Public Defender, Greenbelt, Maryland, for Appellant. Lynn
A. Battaglia, United States Attorney, David I. Salem, Assistant United
States Attorney, Greenbelt, Maryland, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Roberto A. Moreno-Bonilla appeals his jury conviction
for reentry into the United States by a deported alien without the
express consent of the Attorney General, in violation of 8 U.S.C.A.
§ 1326 (West 1999). He asserts that the trial court improperly
excluded relevant evidence, improperly limited cross-examination of
a Government witness, and improperly indicated an unwillingness to
give a jury instruction. Finding no error, we affirm.
We find no abuse of discretion in the district court's ruling that the
evidence presented at trial and the defense's proffered evidence did
not meet the requirements of the entrapment-by-estoppel defense. See
United States v. Wells, 163 F.3d 889, 895 (4th Cir. 1998). "A criminal
defendant may assert an entrapment-by-estoppel defense when the
government affirmatively assures him that certain conduct is lawful,
the defendant thereafter engages in the conduct in reasonable reliance
on those assurances, and a criminal prosecution based upon the con-
duct ensues." United States v. Aquino-Chacon , 109 F.3d 936, 938-39
(4th Cir. 1997), cert. denied, ___ U.S. ___, 66 U.S.L.W. 3296 (U.S.
Oct. 20, 1997) (No. 96-9470). Moreno-Bonilla failed to present evi-
dence that a government official assured him that reentry of the
United States without the express permission of the Attorney General
was legal. Nor did the district court preclude him from introducing
such evidence. Rather, the court correctly concluded that the defen-
dant's proffer, even if credited, would not be legally sufficient to
establish the entrapment-by-estoppel defense. Accordingly, the dis-
trict court did not exclude evidence relevant to the defense on which
Moreno-Bonilla sought to rely.
We also find that the district court did not abuse its discretion in
prohibiting defense counsel from posing a hypothetical question to
the Government's witness from the Immigration and Naturalization
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Service. The question contained facts which were not in evidence, and
the district court was free to limit cross-examination that could poten-
tially confuse the jury. See United States v. Crockett, 813 F.2d 1310(4th Cir. 1987).
Finally, because the defense presented insufficient evidence to
assert the entrapment-by-estoppel defense, there was no evidentiary
basis for an instruction on it. Accordingly, we find the district court
did not abuse its discretion in indicating an unwillingness to instruct
the jury on that affirmative defense based upon the evidence that had
been presented in the trial. See United States v. Stotts, 113 F.3d 493(4th Cir. 1997). The court indicated its ruling could change if, in pre-
sentation of the defense's case, evidence was presented to support the
instruction. Moreno-Bonilla failed to present supporting evidence,
however.
For the foregoing reasons, we therefore affirm the conviction. We
dispense with oral argument because the facts and legal contentions
are adequately presented in the materials before the court and argu-
ment would not aid the decisional process.
AFFIRMED
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