United States v. 2005-06-14 | 03-30321 | USA VZAVALA-MENDEZ | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 UNITED STATES OF AMERICA, No. 03-30321
Plaintiff-Appellee, D.C. No.
v.  CR-03-00037-a-JKS
JOSE GUADALUPE ZAVALA-MENDEZ, OPINION
Defendant-Appellant. 
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Chief Judge, Presiding
Argued and Submitted
July 7, 2004—Anchorage, Alaska
Filed June 15, 2005
Before: Cynthia Holcomb Hall, Andrew J. Kleinfeld, and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Kleinfeld;
Dissent by Judge Hall
7117

-- 1 of 16 --

COUNSEL
Kevin F. McCoy, Assistant Federal Defender, Anchorage,
Alaska, for the appellant.
Jo Ann Farrington, Assistant U.S. Attorney, Anchorage,
Alaska, for the appellee.
OPINION
KLEINFELD, Circuit Judge:
This is a “found in” case where the previously deported
alien presented himself at a border station.
7119 UNITED STATES v. ZAVALA-MENDEZ

-- 2 of 16 --

Facts
Zavala-Mendez was a passenger in a car that crossed into
Alaska on the Alaska Highway from the Yukon Territory on
a January night. He had no right to enter the United States,
because he had been deported and the Attorney General had
not given him permission to reenter.1 At the border station
Zavala-Mendez lied and said he had a green card. But he gave
his true name, and it came up on the border station computer
showing that he had been deported. He was therefore detained
and driven to Anchorage, 430 miles away, where his finger-
prints could be scanned and compared to the fingerprints in
his alien file. The prints matched.
Zavala-Mendez was convicted of being “found in” the
United States after having previously been deported.2 He was
not indicted for attempting to enter the United States.3 His
only defense is legal, that he could not be “found in” the
United States when all he did after crossing the border was to
go straight to the border station and present himself for entry.
Like all American border stations, the Alaskan facility is
inside the United States, so by the time Zavala-Mendez got
there, he was already across the survey line that delineates
one country from the other. It was dark, and traffic is light on
the Alaska Highway in January. There are no lights along the
road except at the border, so the immigration inspectors can
see the headlights of cars approaching from miles away, and
drivers and passengers can likewise see the border from miles
away. Zavala-Mendez’s car was the first vehicle at the border
in four or five hours.
The American border station facility is up a hill, a quarter
or half mile from the actual border, because permafrost pre-
1See 8 U.S.C. §§ 1326(a) and (b)(2).
28 U.S.C. § 1326(a).
3See id.
7120 UNITED STATES v. ZAVALA-MENDEZ

-- 3 of 16 --

vented building the facility closer to the border. The actual
border is at the start of the hill. It takes well under a minute
to drive at the speed limit from the treaty line between Canada
and the United States — marked by a concrete obelisk — to
the American border facility where federal personnel are shel-
tered from the extreme cold. A car is out of sight at the base
of the hill — where the surveyed border and obelisk are —
for perhaps a half second as it approaches the station, though,
of course, the light from the headlights would remain visible
in the dark.
A driver can tell when he crosses the border because at the
surveyed border there are American and Canadian flags that
are lit up all night, a “Welcome To Alaska” sign, and a tourist
pullout next to the survey obelisk. The trees are also clear cut,
like a power line cut, along the border. Thus, any driver or
passenger paying attention would know that he was already
across the border when he got to the border station.
As Zavala-Mendez’s car approached, an inspector looked,
as usual, through binoculars at the license plate, so that the
licence plate number could be typed into the computer. Mud
obscured the number. That got the inspector out of the station,
because water is not a liquid in that part of Alaska in January
and the highway does not throw up mud in winter. When the
car arrived at the station, one inspector checked the license
plate, and the other asked the driver for identifications. The
driver, the driver’s mother, and Zavala-Mendez all gave their
driver’s licenses. The computer flagged Zavala-Mendez, so he
was taken into custody.
The district court denied Zavala-Mendez’s motion for a
judgment of acquittal,4 he was convicted at jury trial, and he
appeals. He raises a question as to jury instructions, but we do
not reach it because we conclude that he was entitled to have
his motion granted.
4See Fed. R. Crim. Proc. 29.
7121 UNITED STATES v. ZAVALA-MENDEZ

-- 4 of 16 --

Analysis
We review a district court’s denial of a Rule 29 motion for
a judgment of acquittal de novo.5 The question we must ask
is whether the evidence is sufficient. Under Jackson v. Virginia,6
the evidence is sufficient when, viewing the evidence in the
light most favorable to the government, “any rational trier of
fact could have found the essential elements of the crime
beyond a reasonable doubt.”7
[1] Federal law makes it a crime for “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.”8 We emphasize the “found in” phrase because that is
the only branch of the statute used in the indictment. Zavala-
Mendez was not charged with attempting to enter, so we need
not decide whether he could be convicted of that.
[2] There are two relevant lines of authority regarding the
“found in” branch of the statute. One involves people who fly
to the United States from some other country, get out of the
airplane at the airport, and proceed directly to the customs
inspection counter where they present themselves. Though
our circuit has not spoken to cases such as this, two of our sis-
ter circuits have.9 Our sister circuits agree that in such a case,
even if the person is a previously-deported alien without per-
mission to reenter, he cannot be convicted of being “found in”
the United States (as opposed to attempting to enter).
5United States v. McNeil, 320 F.3d 1034, 1035 (9th Cir. 2003).
6Jackson v. Virginia, 443 U.S. 307 (1979).
7Id. at 319 (emphasis removed).
88 U.S.C. § 1326(a) (emphasis added).
9See United States v. Angeles-Mascote, 206 F.3d 529, 530-32 (5th Cir.
2000); United States v. Canals-Jimenez, 943 F.2d 1284, 1286-89 (11th
Cir. 1991).
7122 UNITED STATES v. ZAVALA-MENDEZ

-- 5 of 16 --

Of course, in these airport cases, the alien is “in” the United
States in a physical sense as soon as the plane crosses into
American air space, often hundreds of miles before it reaches
the airport where it lands (say, a London to Chicago flight).
The alien is also “in” the United States when he walks on
American soil during the often lengthy stretch, through corri-
dors and around corners, from the ramp out of the plane to the
customs counter. He is often out of sight because the corridors
usually go around corners, and, as a practical matter, the
crowd of departing passengers obscures the view. There is no
way that the immigration inspectors could see a disembarking
alien during his walk up the aisle of the plane, and unless they
had someone watching the ramp, the immigration inspectors
would not see the alien until he made his way through the
maze of corridors to the inspection counters.
[3] The Eleventh Circuit in United States v. Canals-
Jimenez emphasizes the word “found” for why a “found in”
conviction cannot be sustained in this circumstance. “Found”
implies that someone else found the alien in the sense of dis-
covering him, and that is not so where he voluntarily presents
himself:
The phrase “found in” is synonymous with “discov-
ered in.” Any party who voluntarily approaches an
INS station cannot be said to have been found or dis-
covered in the United States. Any alien who seeks
admission through a recognized immigration port of
entry might be guilty of entering or attempting to
enter the United States, but not of being found in the
United States. Congress added the phrase “found in”
to alleviate the problem of prosecuting aliens who
enter in some illegal manner.10
[4] The Fifth Circuit goes the same way in United States v.
Angeles-Mascote. The Fifth Circuit quotes the same para-
10Canals-Jimenez, 943 F.2d at 1287.
7123 UNITED STATES v. ZAVALA-MENDEZ

-- 6 of 16 --

graph we do from Canals-Jimenez, and agrees that a person
is not “found” when he presents himself. In addition, the Fifth
Circuit takes account of the well established proposition that
a person is not “in” the United States until he is not only
physically present on our side of the border, but also enjoys
“freedom from official restraint.”11
Our own circuit has not published any opinions on similar
airport “found in” cases. We have published numerous opin-
ions, however, about previously deported aliens who sneak
back across the border.12 In those cases, where the aliens are
caught right at the fence, under the full gaze of human eyes
and electronic surveillance, we hold that they are not “in” the
United States enough to be “found in.”13 If they get out of
sight for some substantial period, they are “in.”14 We have
drawn fine distinctions between being momentarily out of
sight and being out of sight for a while.15
Much of the argument in this case focused on whether the
moment of time when the slope of the hill blocked the car
from the view of the inspectors at the border station was long
enough to make this case like an alien who, although out of
sight, walked up a box canyon from the border to the waiting
arms of the border patrol,16 or short enough to make it like the
alien who was out of sight for only a moment.17 We conclude
11Angeles-Mascote, 206 F.3d at 531.
12See, e.g., United States v. Vela-Robles, 397 F.3d 786 (9th Cir. 2005);
United States v. Hernandez-Herrera, 273 F.3d 1213 (9th Cir. 2001);
United States v. Ramos-Godinez, 273 F.3d 820 (9th Cir. 2001); United
States v. Pacheco-Medina, 212 F.3d 1162 (9th Cir. 2000); United States
v. Martin-Plascenscia, 532 F.2d 1316 (9th Cir. 1976).
13See Pacheco-Medina, 212 F.3d at 1165.
14See Hernandez-Herrera, 273 F.3d at 1219.
15See, e.g., Ramos-Godinez, 273 F.3d at 824 (discussing whether when
an alien who disappeared from view while crossing a canal and later an
abandoned lot was out of sight enough to be “found in”).
16See Vela-Robles, 397 F.3d at 789.
17See Pacheco-Medina 212 F.3d at 1163.
7124 UNITED STATES v. ZAVALA-MENDEZ

-- 7 of 16 --

that that “surveillance” line of authority is not the appropriate
one. Those cases all deal with aliens who did not approach a
border station in the designated fashion, but who instead
climbed a fence, rafted a canal, or otherwise sneaked across
the border in some illegitimate manner. What we were doing,
when we granted relief to some of them, was extending the
concept that someone who is in the border station itself,
which is always on American soil, is nevertheless not “found
in” the United States because he is not yet free of official
restraint.18
[5] This case is not analogous to those cases where the
alien sneaked in, avoiding the border station, because Zavala-
Mendez proceeded on the designated course from the border
directly to the border station.19 Aliens who proceed directly as
instructed by signs or otherwise to the customs facility — be
it through an airport corridor, a government designated high-
way, or some other designated legitimate path — are not
sneaking into the United States. Instead they are presenting
themselves to American officials in the manner designated by
the United States government. An alien who crosses the bor-
18See id. at 1164-66 (holding that for an alien to “enter” the United
States for the purpose of being “found in,” the alien has to be free from
official restraint).
19If this were a case involving fence jumping or some other evasive way
of sneaking into the country, the record would arguably still be insufficient
to determine beyond a reasonable doubt that Zavala-Mendez made it into
the United States free of official restraint. Though the dip at the base of
the hill would make it hard to see the car for a moment if it was light, in
the dark the headlights would not be out of sight even for an instant. And
even if, while the car was out of sight in the dip, Zavala-Mendez had man-
aged to jump out of the car, he would have needed a snowmachine, or dog
team, or snowshoes or cross-country skis, and proper arctic gear, to have
a chance of successfully traveling up the survey line away from the border
station to someplace in the cold vastness where he might find a trail across
the border. Many people would rather be arrested and put in a warm jail
than leave the safety of “official restraint” and risk such a crossing of the
Alaska-Yukon border in January. See generally, Jack London, To Build a
Fire, in 76 The Century Magazine 525-34 (1908).
7125 UNITED STATES v. ZAVALA-MENDEZ

-- 8 of 16 --

der on a government designated path on a highway should be
treated like the airport aliens, not the fence-jumping aliens.
Like the defendants in the airport entry cases, Zavala-Mendez
must be deemed not to be “found in,” because he proceeded
directly to the border authorities in the designated manner.
Lying about his green card might have exposed Zavala-
Mendez to an “attempting to enter” conviction, but he was not
charged with that. He was charged with, and convicted of,
being “found in” the United States. To avoid a “found in”
conviction, he does not need the fine distinctions our cases
have developed in the fence jumping cases.20 It does not mat-
ter that the sight line to his car was blocked for perhaps a half
second, and it does not matter that his headlights were visible
without interruption for miles in the silent, empty, subarctic
night. He was not “found in” because he proceeded just as he
was supposed to from the border, on the designated path to
the customs inspection station, and presented himself to the
authorities at the station. Such a person is much more analo-
gous to an alien who disembarks from an airplane and goes
to the inspection counter than to one who jumps a fence, and
thus is not “found in” the United States.
20The dissent concedes that the Fifth Circuit, in Angeles-Mascote, dis-
tinguishes aliens who present themselves in the designated way at airports
from aliens who attempt to jump fences or otherwise sneak into the coun-
try, but argues that the Eleventh Circuit has moved away from Canals-
Jimenez in United States v. Gay, 7 F.3d 200 (11th Cir. 1993). We disagree,
with respect to cases like the one at bar. The alien in Gay got through the
border station by returning before the INS put his name into its database
of deported aliens. Id. at 201. He then stayed in the United States for three
years. Id. He did not get caught until he sought a security clearance from
the Customs Service to get into restricted areas of the airport and was
found to be an illegal alien during the security investigation. Id. Thus he
was found in the United States three years after getting past the official
surveillance. Zavala-Mendez never evaded detection and had no period of
time in the United States beyond the border station. Our analysis depends
not on Zavala-Mendez’s state of mind, i.e., what he thought, but rather on
what he did, presenting himself immediately at the designated place for
people entering the United States, as opposed to being “found in” the
United States after evading the border station.
7126 UNITED STATES v. ZAVALA-MENDEZ

-- 9 of 16 --

[6] An alien who crosses the border at a designated location
and proceeds directly in the manner designated by the govern-
ment to the border station where he then presents himself to
the authorities has not been “found in” the United States for
the purposes of 8 U.S.C. § 1326(a). Zavala-Mendez is entitled
on remand to have his motion for a judgment of acquittal
granted and his conviction vacated.
REVERSED.
HALL, Circuit Judge, dissenting:
By implicitly incorporating an intent element into what is
essentially a strict liability crime, the majority’s decision
threatens to undermine a well-established line of Ninth Circuit
cases holding that an alien enters the United States for the
purposes of a “found in” conviction once he sets foot on U.S.
soil, unless he has been under constant surveillance from the
moment he crosses the border. Since Zavala-Mendez
remained “free[ ] to go at large and mix with the population,”
United States v. Hernandez-Herrera, 273 F.3d 1213, 1219
(9th Cir. 2001) (citation omitted), for a discernible, albeit cir-
cumscribed period of time, I would affirm the district court’s
denial of Zavala-Mendez’s Rule 29 motion for acquittal. I
respectfully dissent.
*****
Section 1326 sets forth three separate offenses a deported
alien may commit en route to the United States. A previously
deported alien violates § 1326 if he “enters, attempts to enter,
or is at any time found in, the United States.” 8 U.S.C.
§ 1326(a)(2). We have described being “found in” the United
States as a “passive state, not requiring proof of a voluntary
act.” United States v. Parga-Rosas, 238 F.3d 1209, 1214 (9th
7127 UNITED STATES v. ZAVALA-MENDEZ

-- 10 of 16 --

Cir. 2001) (quoting United States v. Salazar-Robles, 207 F.3d
648, 650 (9th Cir. 2000)).
However, we have also developed a legal fiction, termed
the “official restraint doctrine,” which excepts from prosecu-
tion individuals who are technically present on United States
soil, but nonetheless “lack the freedom to go at large and mix
with the population.” Hernandez-Herrera, 273 F.3d at 1219
(citation omitted); Parga-Rosas, 238 F.3d at 1213; United
States v. Gonzalez-Torres, 309 F.3d 594, 599 (9th Cir. 2002).
The fiction originated in a century-old case in which Chinese
immigrants were tailed by officials from Canada into the
United States, and thereupon seized for violation of a statute
prohibiting them from being “found unlawfully” in the United
States. See Ex parte Chow Chok, 161 F. 627, 628-29
(N.D.N.Y. 1908), aff’d 163 F. 1021 (2d Cir. 1908). The offi-
cial restraint doctrine thus provides that “mere physical pres-
ence on United States soil . . . is insufficient to convict [an
alien] of being found in the United States in violation of 8
U.S.C. § 1326. Rather, the government must also establish
that the alien entered the United States free from official
restraint at the time the officials discovered or apprehended
him.” United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir.
2001) (citation omitted). An alien is deemed to be officially
restrained if, “after crossing the border without authorization,
he is ‘deprived of [his] liberty and prevented from going at
large within the United States.’ ” Hernandez-Herrera, 273
F.3d at 1218 (citation omitted).
The “official restraint” doctrine is construed broadly by this
court. Ruiz-Lopez, 234 F.3d at 448. Thus, “[a]n alien does not
have to be in the physical custody of the authorities to be offi-
cially restrained.” Hernandez-Herrera, 273 F.3d at 1219.
“The restraint may take the form of surveillance, unbe-
knownst to the alien.” Pacheco-Medina, 212 F.3d at 1164
(quoting Matter of Pierre, 14 I. & N. Dec. 467, 469 (BIA
1973)). Authorities may be “restraining” an alien for a lengthy
period of time or a substantial distance. “If a government offi-
7128 UNITED STATES v. ZAVALA-MENDEZ

-- 11 of 16 --

cial has an alien under surveillance from the moment he
passes the port of entry until the moment of arrest, the alien
has not ‘entered’ the United States . . . because the alien was
under official restraint the whole time.” Ruiz-Lopez, 234 F.3d
at 448.
The majority’s conclusion derives primarily from two deci-
sions of sister circuits, United States v. Canals-Jimenez, 943
F.2d 1284 (11th Cir. 1991), and United States v. Angeles-
Mascote, 206 F.3d 529 (5th Cir. 2000). In each case, a defen-
dant deboarded an international flight at a United States air-
port. Both defendants voluntarily proceeded to an
immigration officer and attempted to gain entry to the United
States, whereupon they were apprehended and ultimately con-
victed for being “found in” the United States. Canals-
Jimenez, 943 F.2d at 1285-86; Angeles-Mascote, 206 F.3d at
530. The Eleventh Circuit held that the “found in” language
of § 1326 was inapplicable. Canals-Jimenez, 943 F.2d at
1288. “Section 1326 applies only to situations in which an
alien is discovered in the United States after entering the
country surreptitiously by bypassing recognized immigration
ports of entry . . . .” Id. See also Angeles-Mascote, 206 F.3d
at 531 (“Any party who voluntarily approaches an INS station
cannot be said to have been found or discovered in the United
States.”). However, this language in Canals-Jimenez was later
determined to be mere dicta. See United States v. Gay, 7 F.3d
200, 202 (11th Cir. 1993) (“[T]he Canals court was merely
using a surreptitious entry as the most obvious example of an
illegal entry which would not be detected by immigration
officials, and after which an alien who had illegally entered
might be ‘found in’ the United States . . . . Thus, we conclude
that the reference in Canals to surreptitious entry is mere dicta
and is not controlling.”).
Even assuming that the Fifth Circuit’s pronouncement in
Angeles-Mascote does not suffer from the same questions
regarding its continuing vitality as does the Eleventh Circuit’s
decision in Canals-Jimenez, its analysis is implicitly under-
7129 UNITED STATES v. ZAVALA-MENDEZ

-- 12 of 16 --

mined by our caselaw. Like our sister circuits, we have “cons-
true[d] [official] restraint broadly.” Ruiz-Lopez, 234 F.3d at
448. We have not, however, dispensed with the concept of
“restraint” altogether. Instead, we have adhered closely to the
stated requirement that, in order to constitute official restraint,
an alien must be subjected to constant surveillance. See
United States v. Ramos-Godinez, 273 F.3d 820, 824-25 (9th
Cir. 2001) (“[W]hen the defendant has managed to evade
detection, even for a brief period, we have held that the defen-
dant had ‘entered’ the United States.”). Thus, in Hernandez-
Herrera, a defendant-alien was deemed to have been free
from official restraint although he was being persistently
tracked into an area of dense brush from which there was no
hope of escape. 273 F.3d at 1216. We held that Hernandez
had not been “continuously surveilled” because “he was no
longer visible” to the government official “once he entered
the thick brush.” Id. at 1219. Likewise, Zavala was not visible
to the Alcan agents as he drove the quarter-mile from the
physical border to the Inspection Station. During that time,
even if there had been “no hope of escape” from the densely
forested area encompassing the route between the border and
Alcan,1 Zavala was “exercising his free will within the United
States” in such a way that he did not enter the country under
any official restraint. Id.
Nor does the relatively short distance between the U.S.-
Canadian border and the Alcan Port of Entry, and correspond-
ingly short duration required to traverse it, militate in favor of
the majority’s conclusion. In Hernandez-Herrera, there was
no suggestion that the defendant was able to elude capture
while in the thick brush for any significant period of time. Id.
at 1216. Similarly, in United States v. Castellano-Garcia, 270
F.3d 773 (9th Cir. 2001), we determined that an alien had not
been under constant surveillance because he introduced no
1There was no testimony which would liken the forested area outside
Alcan to the “dense brush” from which there was “no hope of escape” in
Hernandez-Herrera. 273 F.3d at 1216.
7130 UNITED STATES v. ZAVALA-MENDEZ

-- 13 of 16 --

evidence which suggested that “he was under constant obser-
vation by governmental authorities from the moment he set
foot in this country until the moment of his arrest.” Id. at 775.
Instead, Castellanos had been discovered serendipitously by
an immigration officer, without the aid of any sensor or other
detection device, approximately 100 yards from the U.S.-
Mexico border. Id. at 774-75. We held that, in light of the
dearth of evidence to suggest that Castellanos had been identi-
fied at the precise moment he crossed the border, the “free
floating speculation that he might have been observed the
whole time” was insufficient to undercut the government’s
position. Id. at 776.2 As such, Castellanos was “free to migrate
into the general population for some time, and was not under
constant observation during that period.” Id. at 775.
In Ramos-Godinez, we were confronted with a defendant
who was observed crossing the border, but temporarily
evaded surveillance when he crossed a 360-feet wide concrete
canal which was obscured from the border patrol agent’s field
of vision, and when he entered an abandoned lot. 273 F.3d at
824. “[A]lthough law enforcement was in serious pursuit of
Ramos-Godinez and his companions, he was not under ‘cons-
tant observation by governmental authorities . . . .” Id. at 824-
25 (quoting Castellanos-Garcia, 270 F.3d at 775). During
those brief periods of detachment, “Ramos-Godinez was exer-
cising his free will.” Id. at 825. The facts elicited by Zavala
present no more of a case than did those in Castellanos-
Garcia and Ramos-Godinez. Zavala entered the United States
unbeknownst to the Alcan agents, and remained undetected
for approximately one-quarter of a mile into U.S. territory.
2Compare Ruiz-Lopez, 234 F.3d at 448-49 (holding that evidence
adduced by government was insufficient to carry burden because the
arresting official, whose standard practice was to closely monitor all indi-
viduals attempting to cross the border at the Tecate processing center,
could not recall the precise circumstances of the arrest; since Ruiz may
have been under constant surveillance from the moment he crossed the
border, no rational juror could conclude that Ruiz was free from official
restraint).
7131 UNITED STATES v. ZAVALA-MENDEZ

-- 14 of 16 --

The fact that he proceeded directly to the inspection station
did not render him officially restrained.
The situations in which we have found constant surveil-
lance which may be construed as official restraint do not aid
Zavala. In Pacheco-Medina, the defendant and two others
were detected by a surveillance camera as they attempted to
scale the fence guarding the U.S.-Mexico border. Pacheco’s
two associates were apprehended immediately upon reaching
the ground, while Pacheco was chased from the moment he
landed. Pacheco left the agent’s sight for only a “split second
as he rounded a corner,” and was captured within a few yards
of the border. Pacheco-Medina, 212 F.3d at 1163. We found
that Pacheco had been under “constant surveillance” because
“[h]e was in the clutches of the authorities . . . and had no
opportunity to get free of them.” Id. at 1165. In contrast, Zav-
ala was not identified until he had traversed the quarter-mile
between the border and the inspection station. The fact that he
drove directly to Alcan does not alter the fact that during that
quarter-mile, he was free to exercise his will by absconding
into the dense forest surrounding the road, and was therefore
free from official restraint.
Zavala entered the United States unnoticed by the officials
at Alcan. Testimony at trial indicated, in fact, that the physical
border was completely shielded from the view of the Alcan
Port of Entry. From the time that Zavala crossed the border
into the United States until the moment he was first observed
by the Alcan agents, Zavala was free “to go at large and mix
with the population.” Hernandez-Herrera, 273 F.3d at 1219.
That he drove directly to the inspection station and presented
himself for review may have been relevant to his state of
mind in a prosecution for attempted illegal entry; it is utterly
irrelevant to the question of whether he had “entered” the
United States for the purposes of being “found in” the country
illegally. Since he was not under constant surveillance from
the moment he entered the U.S. until the moment of his arrest,
viewing the evidence in the light most favorable to the gov-
7132 UNITED STATES v. ZAVALA-MENDEZ

-- 15 of 16 --

ernment, a rational trier of fact could easily conclude that
Zavala was not under the “official restraint” of governmental
authorities. I would, therefore, affirm the district court’s
denial of Zavala’s Rule 29 motion for acquittal.
7133 UNITED STATES v. ZAVALA-MENDEZ

-- 16 of 16 --