United States v. Belo-Bahena ( 2005 )


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  •                  FOR PUBLICATION
    UNITED STATES COURT OF APPEALS
    FOR THE NINTH CIRCUIT
    UNITED STATES OF AMERICA,                  No. 04-50013
    Plaintiff-Appellee,
    v.                            D.C. No.
    CR-03-01462-DMS
    CARMELO BELLO-BAHENA,
    Defendant-Appellant.
    
    UNITED STATES OF AMERICA,                 No. 04-50155
    Plaintiff-Appellee,
    v.                           D.C. No.
    CR-02-03377-GT
    CARMELO BELLO-BAHENA,
    OPINION
    Defendant-Appellant.
    
    Appeals from the United States District Court
    for the Southern District of California
    Dana M. Sabraw and Gordon Thompson, District Judges,
    Presiding
    Argued and Submitted
    October 6, 2004—Pasadena, California
    Filed June 15, 2005
    Before: Harry Pregerson, A. Wallace Tashima, and
    Richard A. Paez, Circuit Judges.
    Opinion by Judge Paez
    7153
    UNITED STATES v. BELLO-BAHENA          7155
    COUNSEL
    Ramzi G. Nasser, Federal Defenders of San Diego, Inc., San
    Diego, California, for the defenant-appellant.
    7156               UNITED STATES v. BELLO-BAHENA
    Carol C. Lam, United States Attorney, San Diego, California;
    Roger W. Haines, Jr., Assistant U.S. Attorney, Chief, Appel-
    late Section, Criminal Division, San Diego, California; Randy
    K. Jones, Assistant U.S. Attorney, San Diego, California;
    Mark R. Rehe, Assistant U.S. Attorney, San Diego, Califor-
    nia, for the plaintiff-appellee.
    OPINION
    PAEZ, Circuit Judge:
    Carmelo Bello-Bahena (“Bello-Bahena”) appeals his con-
    viction and sentence for being a deported alien found in the
    United States in violation of 8 U.S.C. § 1326(a).1 Bello-
    Bahena argues that 1) the district court erroneously denied his
    motion for judgment of acquittal because there was insuffi-
    cient evidence to conclude that he was free from official
    restraint, 2) the district court erred in rejecting Bello-Bahena’s
    proposed jury instruction regarding official restraint, and 3)
    the district court erred in refusing to dismiss the indictment
    for failure to allege certain elements of the offense. We have
    jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and
    remand for a new trial.2
    I.
    On March 6, 2003, United States Border Patrol Agent Este-
    1
    In addition, in appeal No. 04-50155, Bello-Bahena appeals his sentence
    for violation of supervised release for a prior conviction under § 1326. The
    district court found him in violation of supervised release on the sole basis
    of his conviction at issue in appeal No. 04-50013. We consolidated Bello-
    Bahena’s appeal of the judgment of conviction with his appeal of the sen-
    tence for violation of supervised release.
    2
    Because the sole basis for the judgment finding Bello-Bahena in viola-
    tion of supervised release was his § 1326 conviction, we also vacate that
    judgment and remand for further proceedings.
    UNITED STATES v. BELLO-BAHENA                      7157
    ban Rodriguez was performing line watch duties in Hagen’s
    Pond, a desolate area near the United States/Mexico border.
    At about 3:00 a.m., Agent Rodriguez received a radio alert
    from Agent Bruce Drake, who was operating a “night scope.”3
    Drake told Rodriguez that he had observed a group of people
    heading north in the area. Drake then guided Rodriguez and
    two other agents to a location approximately one mile north
    of the border, where Bello-Bahena was hiding in some brush.
    In response to questioning by Agent Rodriguez, Bello-Bahena
    stated that he was a Mexican citizen and did not have docu-
    ments to be in the United States. Bello-Bahena was arrested
    and transported to the Campo Border Patrol Station for pro-
    cessing.
    The government filed an indictment charging Bello-Bahena
    with being a deported alien “found in” the United States in
    violation of 8 U.S.C. § 1326(a). Bello-Bahena entered a not
    guilty plea. Prior to trial, Bello-Bahena moved to dismiss the
    indictment for failure to allege that he 1) voluntarily entered
    the United States, 2) was inspected and admitted by an immi-
    gration officer or actually and intentionally evaded inspection
    at the nearest inspection point, and 3) knew that he was in the
    United States. The district court denied the motion.
    At trial, Agent Rodriguez testified that Agent Drake had
    detected Bello-Bahena with his scope and that Drake guided
    Rodriguez to Bello-Bahena’s location. Agent Rodriguez
    stated that Bello-Bahena was under constant surveillance by
    Agent Drake from the time Drake notified Rodriguez of
    Bello-Bahena’s presence until his apprehension, but Rodri-
    guez testified that he had “no idea” when Drake first saw
    Bello-Bahena.
    At the close of the government’s evidence, Bello-Bahena
    3
    According to Agent Rodriguez, a night scope is “a telescope that’s
    mounted on the back of a pickup and it picks up body heat which is con-
    nected to a television monitor and it brings out an image of an individual.”
    7158            UNITED STATES v. BELLO-BAHENA
    moved for a judgment of acquittal pursuant to Federal Rule of
    Criminal Procedure 29. The district court denied the motion.
    Bello-Bahena requested a jury instruction explaining that a
    defendant may not be convicted of being found in the United
    States in violation of 8 U.S.C. § 1326 if he was under “official
    restraint” from the moment he crossed the border, and
    explaining that official restraint includes constant surveillance
    by border agents. In support of the proposed instruction,
    defense counsel pointed to Agent Rodriguez’s testimony that
    Bello-Bahena was under constant surveillance up to the time
    of his arrest. The prosecution objected to the instruction on
    the ground that no evidence showed that Bello-Bahena was
    observed as he crossed the border. The district court denied
    Bello-Bahena’s proposed instruction on the basis of its con-
    clusion that constant surveillance does not amount to official
    restraint. The court then gave an instruction stating that the
    government had to prove three elements: “First, the defendant
    is an alien; second, the defendant was deported from the
    United States; and third, the defendant voluntarily reentered
    the United States without the consent of the Attorney General
    of the United States or his designated successor or the Depart-
    ment of Homeland Security.”
    The jury returned a guilty verdict. Following entry of the
    judgment of conviction, Bello-Bahena timely appealed.
    II.
    Bello-Bahena first argues that the district court erred in
    denying his motion for judgment of acquittal. We review de
    novo a district court’s denial of a motion for judgment of
    acquittal. United States v. McNeil, 
    320 F.3d 1034
    , 1035 (9th
    Cir. 2003). We must view the evidence in the light most
    favorable to the government and determine whether any ratio-
    nal trier of fact could have found the essential elements of the
    crime beyond a reasonable doubt. United States v. Gonzalez-
    Torres, 
    309 F.3d 594
    , 598 (9th Cir. 2002).
    UNITED STATES v. BELLO-BAHENA                       7159
    [1] 8 U.S.C. § 1326 makes it a crime for a person who pre-
    viously has been deported to enter, attempt to enter, or at any
    time be found in the United States.4 Physical presence in the
    country is insufficient to convict a defendant for being “found
    in” the United States. The government also must prove that
    the individual “entered the United States free from official
    restraint at the time officials discovered or apprehended him.”
    United States v. Ruiz-Lopez, 
    234 F.3d 445
    , 448 (9th Cir.
    2000), as amended (2001); see also United States v. Parga-
    Rosas, 
    238 F.3d 1209
    , 1213 (9th Cir. 2001) (explaining that
    an alien who is physically present in the United States is not
    deemed to have entered “if he is still under official restraint
    at the time he is found”). The burden is on the government to
    establish lack of official restraint. United States v.
    Castellanos-Garcia, 
    270 F.3d 773
    , 775 (9th Cir. 2001).
    [2] It is well established in this circuit that official restraint
    includes constant governmental observation or surveillance
    from the moment of entry, and that those who are under such
    surveillance for the entire time they are present cannot be
    found to have entered the United States for purposes of
    § 1326. United States v. Vela-Robles, 
    397 F.3d 786
    , 788 (9th
    Cir. 2005). Constant surveillance will bar conviction even if
    the alien is unaware that he is being observed and even if he
    is arrested at a point “well past the point of entry.” Ruiz-
    
    Lopez, 234 F.3d at 448
    (citing Matter of Pierce, 141 I. & N.
    Dec. 467 (BIA 1973)). Thus, we have reversed a “found in”
    conviction where the alien was under continuous observation,
    except for a number of seconds, by one of two agents from
    the time he crossed the border until his apprehension.
    
    Gonzalez-Torres, 309 F.3d at 599
    ; see also United States v.
    4
    Section 1326(a) provides in pertinent part that “any alien who— (1)
    has been denied admission, excluded, deported, or removed or has
    departed the United States while an order of exclusion, deportation, or
    removal is outstanding, and thereafter (2) enters, attempts to enter, or is
    at any time found in, the United States, . . . shall be fined under Title 18,
    or imprisoned not more than 2 years, or both.”
    7160            UNITED STATES v. BELLO-BAHENA
    Pacheco-Medina, 
    212 F.3d 1162
    , 1163 (9th Cir. 2000)
    (reversing a “found in” conviction of an alien who was
    detected on a surveillance video camera as he crossed the bor-
    der and except for a split second never left the agent’s sight
    before his arrest).
    [3] On the other hand, where an individual evades the gov-
    ernment’s detection, even for a brief time, we have held that
    he has legally entered the country free of official restraint and
    may be convicted of a “found in” offense. See United States
    v. Ramos-Godinez, 
    273 F.3d 820
    , 824-25 (9th Cir. 2001)
    (affirming a “found in” conviction where law enforcement
    observed the defendant cross the border but lost sight of him
    for two significant periods of time before his apprehension);
    United States v. Hernandez-Herrera, 
    273 F.3d 1213
    , 1219
    (9th Cir. 2001) (holding that an alien who was being pursued
    by law enforcement and escaped into thick brush out of sight
    of law enforcement for a period before his arrest was free
    from official restraint).
    Bello-Bahena asserts that a rational jury could not have
    found beyond a reasonable doubt that he was free from offi-
    cial restraint in the form of constant governmental observa-
    tion. He notes that it is undisputed that he was under
    continuous surveillance from the time Agent Drake contacted
    Agent Rodriguez until his arrest. Further, no evidence showed
    a lack of surveillance from the time Bello-Bahena crossed the
    border. Rodriguez testified that he had “no idea” when Drake
    first detected Bello-Bahena, and Drake himself did not testify.
    Bello-Bahena suggests that the most reasonable inference is
    that Drake’s scope was pointed at the border, and that Drake
    alerted Rodriguez when the group was near Rodriguez, not
    when Drake first saw them. Without hearing testimony
    regarding whether Drake observed Bello-Bahena from the
    moment he crossed the border, Bello-Bahena argues, the jury
    had no basis from which to conclude that Bello-Bahena was
    not under constant surveillance the entire time he was in the
    country.
    UNITED STATES v. BELLO-BAHENA                7161
    Relying on our decision in Castellanos-Garcia, the govern-
    ment argues that the evidence supports an inference that
    Bello-Bahena was free from official restraint up until the
    point when Drake notified Rodriguez of Bello-Bahena’s pres-
    ence. In Castellanos-Garcia, we rejected a defendant’s claim
    that the government failed to prove that he was free from offi-
    cial 
    restraint. 270 F.3d at 776
    . There, the arresting agent testi-
    fied that he simply came upon the defendant at some point
    after he crossed the border, without relying on a sensor device
    or another agent to locate him. 
    Id. at 778.
    We held that in the
    absence of contrary evidence, such testimony sufficed to
    allow a rational jury to conclude that the defendant was free
    from official restraint prior to his arrest. 
    Id. [4] Viewing
    the evidence in the light most favorable to the
    government, we conclude that here, as in Castellanos-Garcia,
    a rational jury could have found beyond a reasonable doubt
    that Bello-Bahena was free from official restraint for at least
    some time before his apprehension. Agent Rodriguez testified
    that around 3:00 a.m., Agent Drake alerted him that “he had
    a group of seven individuals trekking north right around the
    Ponds area.” According to Rodriguez, Hagen’s Pond was
    about one mile north of the border. At the time Rodriguez
    received the call from Drake, Rodriguez was assigned to “line
    watch duties,” less than a quarter mile north of the border.
    Rodriguez testified that he drove to Bello-Bahena’s location,
    guided by Drake, who kept Bello-Bahena under continuous
    observation until his arrest. A reasonable jury could conclude
    on the basis of this testimony that Drake first detected Bello-
    Bahena at some point after he crossed the border. Thus, the
    district court did not err in denying Bello-Bahena’s motion for
    judgment of acquittal.
    III.
    [5] Bello-Bahena next argues that the district court should
    have given his proposed jury instruction regarding his theory
    that he was under official restraint from the moment he
    7162            UNITED STATES v. BELLO-BAHENA
    crossed the border. “A defendant is entitled to have the judge
    instruct the jury on his theory of defense, provided that it is
    supported by law and has some foundation in the evidence.”
    United States v. Fejes, 
    232 F.3d 696
    , 702 (9th Cir. 2000).
    Where the parties dispute whether the evidence supports a
    proposed instruction, we review a district court’s rejection of
    the instruction for an abuse of discretion. 
    Id. “If the
    defen-
    dant’s theory of defense is supported by the evidence, we
    review de novo whether the district court’s instructions ade-
    quately cover it.” 
    Id. Here, Bello-Bahena
    requested an instruction explaining that
    the government had to prove that he was free from official
    restraint and defining official restraint to include constant sur-
    veillance. The proposed jury instruction read as follows:
    An alien who is under official restraint, although
    physically present on United States soil, has not
    entered the United States in the legal sense. Thus, if
    Mr. Bello-Bahena was continuously under “official
    restraint” from the time that he crossed the border
    until he was apprehended, he has not entered the
    United States within the meaning of the statute under
    which he is charged in the indictment.
    “Official restraint” means that Mr. Bello-Bahena
    was effectively deprived of his liberty and prevented
    from going at large within the United States.
    In order for an alien to be deemed not to have yet
    entered the United States under this rule of law, the
    alien must be under the official restraint at all times
    during and subsequent to his physical entry onto
    United States soil. Constant observation and surveil-
    lance of the alien by one or more agents who is or
    are reasonably able to apprehend him after he has
    crossed the border constitutes official restraint. The
    constant surveillance must be of such a degree that
    UNITED STATES v. BELLO-BAHENA                 7163
    it would prevent the alien from escaping into the
    general population of the United States.
    It is for you as the finders of fact to determine
    whether the Government has proved beyond a rea-
    sonable doubt that Mr. Bello-Bahena was not contin-
    uously under “official restraint” from the time that
    he crossed the international border until his appre-
    hension. In making this determination, you should
    consider whether Mr. Bello-Bahena was under cons-
    tant surveillance by authorities and whether that sur-
    veillance was continuous. An alien need not know he
    is under surveillance to be under official restraint or
    have intended to evade inspection.
    If Mr. Bello-Bahena was not under constant surveil-
    lance, in determining whether he was under “official
    restraint,” other factors you should consider include
    the distance the authorities were from Mr. Bello-
    Bahena, the amount of time he may have been physi-
    cally present within the United States prior to appre-
    hension, the distance he may have traveled into the
    United States, and the characteristics of the area in
    which he may have crossed the border.
    Bello-Bahena and the government disputed whether the
    evidence supported the proffered instruction. Bello-Bahena
    argued that the instruction was warranted because Rodriguez
    testified that the defendant was under constant surveillance
    from the time Drake called Rodriguez. The government
    objected that “there was no testimony that anyone saw him
    enter into the United States.” After hearing the parties’ argu-
    ments, the district court rejected the instruction on the basis
    of an erroneous legal conclusion. The district court asked, “[Is
    it] the Government’s position that surveillance is not tanta-
    mount to deprivation of liberty?” The government replied that
    it was, and the court agreed and rejected the proposed instruc-
    tion.
    7164            UNITED STATES v. BELLO-BAHENA
    The district court’s conclusion “that surveillance is not tan-
    tamount to deprivation of liberty” is contrary to the well
    established rule in our circuit “that a person does not commit
    an unlawful entry into the United States if he or she was
    ‘under constant observation by governmental authorities’
    from the time of physical entry until the time of arrest.” Vela-
    
    Robles, 397 F.3d at 788
    (quoting 
    Castellanos-Garcia, 270 F.3d at 775
    ). Nonetheless, regardless of the district court’s
    misunderstanding of the law, whether Bello-Bahena was enti-
    tled to have the judge instruct the jury on his theory of
    defense depends on whether that theory had “some foundation
    in the evidence,” a factual issue that is reviewed for an abuse
    of discretion. See 
    Fejes, 232 F.3d at 702
    .
    Bello-Bahena argues that his proffered instruction is sup-
    ported by Agent Rodriguez’s testimony that Bello-Bahena
    was under constant surveillance preceding his arrest. At trial,
    the prosecutor asked Rodriguez, “To your knowledge, was the
    Defendant under constant surveillance by the other agent
    [Drake] on March 6, 2003?” Rodriguez responded, “Yes. I
    believe so.” On cross-examination, defense counsel asked
    Rodriguez, “You testified that the scope operator I believe
    indicated to you that he kept him under constant surveillance
    until you arrived at the location?” Rodriguez responded, “Yes,
    m’am.” Rodriguez clarified that Drake did not tell Rodriguez
    whether he had observed Bello-Bahena cross the border, and
    that Rodriguez had “no idea” when Drake first detected Bello-
    Bahena.
    The government contends that this evidence did not suffice
    to warrant Bello-Bahena’s proposed instruction because no
    evidence showed that the observation was continuous from
    the time of entry. It argues that the circumstances here are
    analogous to those in Castellanos-Garcia, where we affirmed
    the denial of the defendant’s proposed jury instruction regard-
    ing official restraint. Castellanos-Garcia is far different from
    this case, however. In Castellanos-Garcia, we emphasized
    that “there was not a scintilla of evidence” to support the
    UNITED STATES v. BELLO-BAHENA                7165
    defendant’s theory that he was under constant 
    surveillance. 270 F.3d at 776
    . Rather, the evidence suggested that the
    defendant was not under any form of surveillance prior to his
    apprehension: the arresting agent testified that he merely
    came upon the defendant without the aid of a sensor device
    or other agent. 
    Id. In such
    circumstances, we held that the
    defendant was not entitled to an official restraint instruction
    because “there was no evidence to support that theory.” 
    Id. at 777.
    [6] Here, in contrast, Bello-Bahena’s claim of constant sur-
    veillance has a basis in the evidence, consisting of the arrest-
    ing agent’s testimony that another agent was continuously
    monitoring Bello-Bahena, and that Rodriguez relied on that
    surveillance to find Bello-Bahena. Although there was an
    absence of evidence regarding whether the surveillance began
    when Bello-Bahena crossed the border, the evidence permits
    such a rational inference to be drawn. Thus, Rodriguez’s testi-
    mony provides a sufficient basis to warrant an official
    restraint instruction.
    Our recent decision in Vela-Robles does not aid the govern-
    ment’s position. In that case, we reaffirmed the principle set
    forth in Castellanos-Garcia that where a defendant presents
    no evidence that he was under constant governmental obser-
    vation, a district court is not required to give an instruction on
    the defendant’s official restraint theory. 
    Vela-Robles, 397 F.3d at 789
    . The defendant in Vela-Robles argued that he was
    under constant surveillance because he triggered a seismic
    sensor as he crossed the border. We rejected that argument,
    holding that “[d]etection by a seismic sensor does not amount
    to observation or surveillance for the purpose of showing offi-
    cial restraint,” but rather “an alien must be ‘in the visual or
    physical grasp of the authorities at all times’ to show that he
    or she is under official restraint.” 
    Id. (quoting Pacheco-
    Medina, 212 F.3d at 1165
    ). Because Vela-Robles presented
    no evidence that he was under constant observation, we held
    7166              UNITED STATES v. BELLO-BAHENA
    that Vela-Robles was not entitled to an official restraint
    instruction. 
    Id. Unlike the
    defendants in Vela-Robles and Castellanos-
    Garcia, Bello-Bahena has pointed to affirmative evidence that
    he was under continuous visual observation by a border agent
    for a period of time before his arrest. Where, as here, there is
    at least “some foundation in the evidence” to support a defen-
    dant’s theory of defense, a district court is required to give an
    instruction on that theory. See 
    Fejes, 232 F.3d at 702
    ; see also
    United States v. Washington, 
    819 F.2d 221
    , 225 (9th Cir.
    1987) (“[A] defendant is entitled to an instruction concerning
    his theory of the case if the theory is legally sound and evi-
    dence in the case makes it applicable, even if that evidence is
    weak, insufficient, inconsistent, or of doubtful credibility.”).
    Because, bearing in mind that the burden of proof was on the
    government, Agent Rodriguez’s testimony supports Bello-
    Bahena’s defense theory, the district court abused its discre-
    tion in failing to give an official restraint instruction.5
    Moreover, the instruction actually given to the jury did not
    adequately cover Bello-Bahena’s defense theory. The court
    instructed the jury that there were three elements to the crime
    of being a deported alien found in the United States: “First,
    the defendant is an alien; second, the defendant was deported
    from the United States; and third, the defendant voluntarily
    reentered the United States without the consent of the Attor-
    ney General of the United States or his designated successor
    or the Department of Homeland Security.” The instruction
    made no mention of official restraint or constant surveillance
    or of the burden of proof on that issue. Because the evidence
    warranted an instruction regarding official restraint, and
    because the instruction given wholly failed to cover this the-
    5
    Because we find that Agent Rodriguez’s testimony supported an offi-
    cial restraint instruction, we need not address Bello-Bahena’s additional
    argument that evidence of the circumstances surrounding his arrest, apart
    from constant surveillance, warranted his proposed instruction.
    UNITED STATES v. BELLO-BAHENA                      7167
    ory, we reverse the judgment of the district court and remand
    for a new trial.6
    IV.
    Finally, Bello-Bahena argues that the district court erred by
    denying his motion to dismiss the indictment for failure to
    allege certain elements of the crime.7 We review the suffi-
    ciency of an indictment de novo. United States v. Rodriguez-
    Rodriguez, 
    364 F.3d 1142
    , 1145 (9th Cir. 2004).
    6
    The government acknowledges that the denial of an instruction regard-
    ing a defendant’s theory of defense warrants per se reversal; however, it
    asserts that here, any error should be reviewed for harmlessness because
    Bello-Bahena did not explicitly state that official restraint was his “theory
    of defense,” and his proposed instruction is more appropriately character-
    ized as a “gloss on the element” of entry. Under harmless error review, the
    government argues, reversal is not warranted because it is clear beyond a
    reasonable doubt that a rational jury would have found Bello-Bahena
    guilty even with the proffered instruction.
    The government points to no authority for its position that this court’s
    application of harmless error review turns on whether a defendant used the
    words “theory of defense” in labeling its proffered instruction. Regardless
    of whether official restraint is characterized as a theory of defense or a
    gloss on the element of entry, it is undisputed that if the government fails
    to prove freedom from official restraint, Bello-Bahena cannot be found
    guilty of the crime charged. See Vela-
    Robles, 397 F.3d at 788
    . Thus,
    Bello-Bahena is entitled to an instruction addressing official restraint as
    long as it has some foundation in the evidence. See 
    Fejes, 232 F.3d at 702
    .
    7
    The indictment states:
    On or about March 3, 2003, within the Southern District of Cali-
    fornia, defendant CARMELO BELLO-BAHENA, aka Francisco
    Hernandez-Catalan, an alien, who previously had been excluded,
    deported and removed from the United States to Mexico, was
    found in the United States, without the Attorney General of the
    United States or his designated successor, the Secretary of the
    Department of Homeland Security (Title 6, United States Code,
    Sections 202(3) and (4), and 557), having expressly consented to
    the defendant’s reapplication for admission into the United
    States; in violation of Title 8, United States Code, Section 1326.
    7168             UNITED STATES v. BELLO-BAHENA
    [7] Bello-Bahena asserts that the district court should have
    dismissed the indictment because it failed to allege (1) volun-
    tary entry, (2) inspection and admission by an immigration
    officer or actual and intentional evasion of inspection, and (3)
    knowledge of presence in the United States. However, each of
    these claims is foreclosed by our decision in United States v.
    Rivera-Sillas, 
    376 F.3d 887
    , 890 (9th Cir. 2004) (“That clause
    [§ 1326] does not require the indictment to specifically state
    that the defendant alien voluntarily entered the United
    States.”); 
    id. at 892
    (holding that a “found in” indictment need
    not allege all of the elements of entry); 
    id. at 893
    (holding that
    an indictment under § 1326 need not allege knowledge
    because the “general intent of the defendant to reenter the
    United States may be inferred from the fact that the defendant
    was previously deported and subsequently found in the United
    States.”). Thus, we conclude that the district court did not err
    in denying Bello-Bahena’s motion to dismiss the indictment.
    V.
    The district court did not err in denying Bello-Bahena’s
    motion for acquittal and his motion to dismiss the indictment.
    Given the state of the evidence, however, it should have given
    an instruction on official restraint. In appeal No. 04-50013,
    the judgment of conviction is, therefore, REVERSED and the
    case is REMANDED for a new trial.8
    8
    Having reversed the conviction, in appeal No. 04-50155, we VACATE
    the sentence imposed for violation of supervised release and REMAND
    for further proceedings consistent with this opinion.