United States of America v. Alejandro Felix Hernandez

This disposition is not appropriate for publication and is not precedent*
except as provided by 9th Cir. R. 36-3.
NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
ALEJANDRO FELIX HERNANDEZ,
Defendant - Appellant.
No. 11-50424
D.C. No. 3:10-cr-05144-BEN-1
MEMORANDUM*
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted December 5, 2012
Pasadena, California
Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.
Defendant-appellant Alejandro Felix Hernandez (“Hernandez”) appeals his
conviction of attempted reentry after deportation without permission in violation of
8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 1291. Hernandez argues,
inter alia, that the district court improperly conditioned his constitutional right to
FILED
JAN 18 2013
MOLLY C. DWYER, CLERK
U .S. C OU R T OF APPE ALS

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present a defense on his surrender of his right not to testify. We agree. Because we
conclude that the district court’s ruling requiring Hernandez to testify in order to
present any evidence regarding his mistake of fact defense was plain error, we
vacate Hernandez’s conviction and remand to the district court for a new trial.
Hernandez’s only defense at trial was that he made a mistake of fact as to
whether he had permission to reenter the United States. In support of this defense,
Hernandez sought to introduce an unexpired permanent residence card issued in his
name, which he claimed he recently discovered before reentering and thought was
newly issued. He also sought to introduce corroborating testimony of his wife and
son regarding the discovery of the permanent residence card and Hernandez’s
belief that it granted him permission to reenter the country.
Attempted reentry in violation of 8 U.S.C. § 1326 is a specific intent crime.
United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000).
Hernandez had the right to introduce evidence that would cast doubt on one of the
elements of the crime, specific intent to enter without permission, for which the
government bore the burden of proof beyond a reasonable doubt. See United States
v. Sandoval-Gonzalez, 642 F.3d 717, 722-23 (9th Cir. 2011). Because Hernandez
bore no burden of producing evidence that negated an element of the crime,
Hernandez’s testimony was not necessary to meet any threshold requirement for

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presenting his defense. Compare Menendez v. Terhune, 422 F.3d 1012, 1032 (9th
Cir. 2005) (holding that the defendant was required to testify to provide an
adequate foundation for the introduction of corroborating evidence of imperfect
self-defense, a defense for which the defendant bears the burden of production)
with United States v. Rahm, 993 F.2d 1405, 1414 (9th Cir. 1993) (“By choosing
not to testify, [defendant] did not forfeit her right to present a defense or to
introduce testimony. . . . The government was required to prove each element of
the crimes charged beyond a reasonable doubt. Defense testimony calling into
question the proof of any such element is proper.”).
Despite the foregoing, the district court conditioned Hernandez’s right to
present any evidence of his mistake of fact on the requirement that he testify in his
own defense. In other words, the district court conditioned Hernandez’s
constitutional right to present a defense, Crane v. Kentucky, 476 U.S. 683, 687
(1986), on his forfeiting his constitutional right not to testify, U.S. Const. amend. V.
See Simmons v. United States, 390 U.S. 377, 394 (1986) (“[W]e find it intolerable
that one constitutional right should have to be surrendered in order to assert
another.”). At oral argument, the government acknowledged that if Hernandez had
the right to introduce this evidence, then the district court judge’s ruling was plain

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There is some question whether Hernandez properly objected to the district1
court’s ruling. If he did not, the plain error rule applies. United States v.
Ayala-Nicanor, 659 F.3d 744, 746-47 (9th Cir. 2011). We need not resolve this
issue since the government’s counsel agreed that, if Hernandez had the right to
present the testimony, the error was plain.
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error. Given that concession, and our conclusion that Hernandez was entitled to1
introduce the evidence, we vacate Hernandez’s conviction and remand to the district
court for a new trial. Because we conclude that Hernandez’s conviction must be
vacated on this ground, we need not address the other claims raised by Hernandez
in his appeal.
VACATED and REMANDED.

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