It is Friday, let's start with the good news.
In United States v. Vazquez-Hernandez, --- F.3d ---, Case No. 15-10009 (9th Cir. 2017), the Court vacated the defendant's attempted illegal reentry conviction on plain-error review.
The defendant was washing windows on the South side of a port of entry, but technically within U.S. territory. Agents arrested him. The district court failed to instruct the jury that, to sustain the conviction, the government needed to prove the defendant attempted to enter free from official restraint. The jury convicted.
On appeal, the Ninth Circuit, explained, "[t]he Fifth and Sixth Amendments require
criminal convictions to rest upon a jury determination that
the defendant is guilty of every element of the crime with
which he is charged beyond a reasonable doubt. United
States v. Gaudin, 515 U.S. 506, 509–10 (1995). Jury
instructions misstate the essential elements of an offense
when they do not adequately link the intent element of a
crime with the required object of that intent."
And that was the error in failing to instruct on official restraint. Moreover, as to intent to enter free from official restrain, the evidence was insufficient. Thus, there can be no retrial.
If you have an attempted 1326 near the border, this case is a must read.
In Robertson v. Pichon, --- F.3d ---, Case No. 15-16463 (9th Cir. 2017), the Court affirmed the denial of habeas in a case where the petitioner invoked his right to counsel in response to a request to take a chemical test in the DUI context. The Court held that because the Supreme Court has not
addressed whether a defendant’s request for counsel in
response to a request to submit to a chemical test constitutes
an invocation of his Miranda rights for purposes of any future
custodial interrogations, the state court’s ruling that the
admission of Robertson’s statements did not violate Miranda
and Edwards is not objectively unreasonable.
Luckily, Chief Judge Thomas concurred to explain that the result was compelled by the AEDPA standard
of review, but wrote that if the appeal were on direct review, it might be a different outcome.
