United States v. Jose Villegas-Guitierrez

FILED
NOT FOR PUBLICATION DEC 14 2012
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 11-50523
Plaintiff - Appellee, D.C. No. 3:11-cr-00517-JLS-1
v.
MEMORANDUM *
JOSE FERNANDO VILLEGAS-
GUTIERREZ,
Defendant - Appellant.
Appeal from the United States District Court
for the Southern District of California
Janis L. Sammartino, District Judge, Presiding
Argued and Submitted December 3, 2012
Pasadena, California
Before: BERZON, CLIFTON, and IKUTA, Circuit Judges.
Jose Fernando Villegas-Gutierrez appeals his jury conviction for illegal
reentry after deportation, in violation of 8 U.S.C. § 1326. We affirm the judgment
of the district court.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
1. The district court did not err in refusing to provide Villegas’s requested
jury instruction on official restraint. There was no evidence in the record that
Villegas was under continuous surveillance at any time before or after he crossed
the border into the United States. See United States v. Bello–Bahena, 411 F.3d
1083, 1089 (9th Cir. 2005) (stating that a defendant is entitled to a jury instruction
when the instruction is “supported by law” and has “some foundation in the
evidence” (quoting United States v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000))). The
only evidence of actual surveillance was the triggering of a seismic sensor at the
border which, under our case law, does not constitute official restraint. See United
States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2005).
The presence of remote-controlled, 24-hour cameras in the area where
Villegas was apprehended does not constitute sufficient evidence that Villegas
entered the United States under continuous observation to merit an official restraint
instruction. In United States v. Castellanos-Garcia, we rejected as “mere
speculation” the defendant’s argument that he could have been observed by one of
the fifteen or more Border Patrol agents in the area where he was arrested. 270
F.3d 773, 776 (9th Cir. 2001). Villegas’s argument that he may have been under
camera surveillance is equally speculative, particularly because the arresting
Border Patrol agent testified that he received no notification regarding Villegas’s
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location after the sensor was triggered, and because it is unlikely that such
information would have been withheld if Villegas had been spotted by agents
monitoring Border Patrol cameras. Accordingly, while Villegas’s proposed jury
instruction on official restraint was supported by law, it lacked any foundation in
the evidence. The district court did not err in declining to issue it.
2. The district court did not abuse its discretion in admitting the challenged
testimony of the A-file custodian. The court’s in limine ruling reserved the
possibility of defense objections to the custodian’s testimony at trial for lack of
foundation. No such objection was made. Nor was admission of the custodian’s
statements plain error, as the statements did not obviously require that the
custodian be qualified as an expert.
3. Finally, even assuming that the district court’s limitations on cross-
examination of the A-file custodian violated the Confrontation Clause, any error
was harmless beyond a reasonable doubt. See United States v. Schoneberg, 396
F.3d 1036, 1044 (9th Cir. 2005). Villegas was not prejudiced by the district court’s
restriction. The existence of alternative ways to apply for readmission other than
Form I-212 was not pertinent to the elements of the offense under § 1326. The
relevant question was not whether there was any evidence that Villegas had
applied for permission to reenter but whether there was any evidence that he had
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received such permission. The A-file custodian’s testimony concerning his search
of Villegas’s records was sufficient to indicate that no such permission had been
given. The court’s limitation on cross-examination regarding the possible methods
of applying for permission could not have affected the jury’s assessment of the
evidence concerning whether any permission was actually given.
The judgment of the district court is AFFIRMED.
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