In United States v. Liberato, --- F.4th ---, No. 23-3262 (9th Cir. 2025), a divided Court reversed Wardy Alfonso Liberato’s conviction under 8 U.S.C. § 1326(a) for entering and being found in the United States after having been removed, and remanded for entry of a judgment of acquittal.
The only issue on appeal was whether the government’s evidence was sufficient to establish that Liberato was free from official restraint at some point before his apprehension. The majority held it was not.
Wardy Alfonso Liberato, a Dominican removed from the United States in 2007, was part of a group of suspected noncitizens arrested next to the U.S.-Mexico border fence in January 2023. A jury convicted him of “enter[ing]” and being “found in the United States of America after having been . . . removed therefrom” in violation of 8 U.S.C. § 1326(a). Presence in the United States does not violate Section 1326(a) “until physical presence is accompanied by freedom from official restraint.” United States v. PachecoMedina, 212 F.3d 1162, 1164 (9th Cir. 2000) (quoting United States v. Oscar, 496 F.2d 492, 493 (9th Cir. 1974)). Liberato appeals his conviction, arguing that the government did not meet its burden of proving beyond a reasonable doubt that he was ever free from official restraint before he was apprehended. We agree and reverse.Critically for this case, “[t]he burden is on the government to establish lack of official restraint.” BelloBahena, 411 F.3d at 1087. As our cases illustrate, the evidence presented at trial must support not just the possibility but the logical inference—beyond a reasonable doubt—that the defendant was at least briefly free from official restraint while within U.S. territory.Viewing this evidence in the government’s favor, no rational juror could have concluded beyond a reasonable doubt that Liberato was at any point free from official observation or restraint between the moment he physically crossed into U.S. territory and the moment he was apprehended.[T]here was no evidence that Liberato’s group was ever anywhere other than immediately next to the border fence. In Castellanos-Garcia and BelloBahena, the distance from the border supported a reasonable inference, absent any evidence of prior observation, that the defendant had traveled freely and unrestrained to the point of first encounter. But here, Liberato’s only established location—right next to the fence, in Agent Lastra’s presence—does not support an inference that he was ever at large in U.S. territory.[T]here was no testimony from the first agent to encounter Liberato directly—Agent Lastra. And, to the extent the jury accepted Agent Hall’s testimony that Liberato was first observed through a camera, there was also no testimony from the agent who observed Liberato via that camera, and no indication whether Liberato was in the United States or Mexico when so observed. As a result, there was no testimony whatsoever about where Liberato was or what he was doing when he was first observed in the United States.It is possible, to be sure, that there was a gap in observation. Given Mondragon’s camera testimony, a reasonable juror could perhaps have found that there were no cameras observing the location where Liberato was arrested. And perhaps Liberato and his group traveled some distance unseen before reaching that location and being apprehended by Agent Lastra. But there is no evidence that that happened, just, at best, “mere speculation.” Nevils, 598 F.3d at 1167. The only evidence is that Agent Lastra “encountered” Liberato. Whether this encounter took place while Liberato was crossing the border or only afterwards was not specified. And Liberato was right next to the border fence in Agent Lastra’s presence at the only time Agent Mondragon could say where he saw him.This is not a case, then, where the “record . . . supports conflicting inferences”—that Liberato either did or did not escape observation for some period. Cf. Nevils, 598 F.3d at 1164 (quoting Jackson, 443 U.S. at 326). An inference is a conclusion reached by “deducing a logical consequence” from a set of facts. Inference, Black’s Law Dictionary (12th ed. 2024). Here, although the testimony presented does not entirely foreclose the possibility that Liberato briefly escaped observation, such a conclusion is not a logical consequence of the facts that are in the record—and certainly not a logical inference beyond a reasonable doubt. The speculative possibility that Liberato was at some point free from official restraint cannot serve as the basis for a criminal conviction.The government was of course free to try this case how it saw fit. But the testimony from the witnesses the government did choose to call was full of gaps—gaps the government presumably could have filled with no inherent difficulty but, for its own undisclosed reasons, chose not to. That choice was the government’s to make. But the consequence of that choice was that the evidence the government presented was not sufficient to meet its high burden of proof beyond a reasonable doubt.
