Opinion
Argued and Submitted April 9, 2003.
NOT FOR PUBLICATION. (See Federal Rule of Appellate Procedure Rule 36-3)
Defendant was convicted by jury in the United States District Court for the Southern District of California, Barry T. Moskowitz, J., of being deported alien found in United States. Defendant appealed. The Court of Appeals held that: (1) indictment was not defective; (2) evidence supported conviction; and (3) instruction on official restraint doctrine was not warranted.
Affirmed.
Appeal from the United States District Court for the Southern District of California, Barry T. Moskowitz, District Judge, Presiding.
Page 54.
Before BEEZER, FERNANDEZ, and PAEZ, Circuit Judges.
This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3.
Mario Ochoa-Garcia appeals his conviction for being a deported alien found in the United States. See 8 U.S.C. § 1326. We affirm.
While Ochoa raises three separate issues, each of them revolves around his claim that he never entered the United States because he was under official restraint from the moment he stepped over the border to the time of his physical capture. See United States v. Gonzalez-Torres, 309 F.3d 594, 597-99 (9th Cir.2002); United States v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir.2000). We disagree. The record makes it plain that Ochoa was not under constant surveillance from the moment he came onto United States soil. That means that he did manage to enter. See United States v. Hernandez-Herrera, 273 F.3d 1213, 1218-19 (9th Cir.2001); United States v. Ramos-Godinez, 273 F.3d 820, 824-25 (9th Cir.2001); United States v. Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir.2001); Martin-Plascencia, 532 F.2d at 1317-18.
Among other things, he was not seen as he entered and he did not even trigger a seismic sensor until he was 100 yards into this country. See United States v. Martin-Plascencia, 532 F.2d 1316, 1317 (9th Cir.1976).
Therefore, the indictment was not defective. See United States v. Lualemaga, 280 F.3d 1260, 1263 (9th Cir.2002). Moreover, the evidence was sufficient to support the verdict. See Pacheco-Medina, 212 F.3d at 1163. Finally, the dearth of evidence of official restraint relieved the district court of any obligation to instruct the jury on that doctrine. See Castellanos-Garcia, 270 F.3d at 777.
AFFIRMED.