UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITcdn.ca9.uscourts.gov/datastore/opinions/2015/04/21/13-10500.pdfApr 21, 2015 · involved in football, karate, and boxing.” Additionally,

FOR PUBLICATION

UNITED STATES COURT OF APPEALSFOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

JESUS ALVAREZ-ULLOA, AKA JesseUlloa, AKA Jesse Alvarez Ulloa,

Defendant-Appellant.

No. 13-10500

D.C. No.2:11-cr-2268-

NVW-1

UNITED STATES OF AMERICA,Plaintiff-Appellee,

v.

JESUS ALVAREZ-ULLOA, AKA JesseA. Ulloa,

Defendant-Appellant.

No. 13-10501

D.C .No.4:07-cr-1972-

NVW-1

OPINION

Appeals from the United States District Courtfor the District of Arizona

Neil V. Wake, District Judge, Presiding

Argued and SubmittedDecember 11, 2014—San Francisco California

Filed April 21, 2015

UNITED STATES V. ALVAREZ-ULLOA2

Before: A. Wallace Tashima and Richard A. Paez, CircuitJudges, and Frederic Block, Senior District Judge.*

Opinion by Judge Tashima

SUMMARY**

Criminal Law

The panel affirmed a conviction for illegal reentry under8 U.S.C. § 1326(a), and the district court’s order revokingsupervised release based on that conviction, in a case inwhich the defendant contended that the district court erred inrejecting his Batson challenges and that a supplemental juryinstruction impermissibly coerced the jury and constructivelyexpanded the indictment.

The panel held that the district court erred in failing toreach the third step of the Batson framework, where itdispensed with each challenge by determining that thegovernment had asserted facially neutral grounds for itsperemptory strikes of three Hispanic individuals in the venire,without evaluating the persuasiveness of the government’sfacially neutral reason. The panel held, however, that thedefendant failed to show purposeful discrimination and thatthe record does not support such a finding on de novo review.

* The Honorable Frederic Block, Senior United States District Judge,Eastern District of New York, sitting by designation.

** This summary constitutes no part of the opinion of the court. It hasbeen prepared by court staff for the convenience of the reader.

UNITED STATES V. ALVAREZ-ULLOA 3

The panel held that the district court’s supplementalinstruction – which clarified that the insanity defense wouldnot apply if, while the defendant was illegally present in theUnited States, he was sane for a long enough period to haveleft the country – was substantively correct and not coercive.The panel rejected the defendant’s contention that thesupplemental jury instruction constituted a constructiveamendment of the indictment. The panel wrote that becauseit is well-established in this circuit that an indictment under§ 1326(a) need not specifically denote the duration of adefendant’s illegal presence, the indictment provided thedefendant with adequate notice that he was being chargedwith a course of criminal conduct that began when hereentered the United States; and that the supplemental juryinstruction was not “distinctly different” from the indictment.

COUNSEL

Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger(argued), Assistant Federal Public Defender, Phoenix,Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, Mark S.Kokanovich, Deputy Appellate Chief, and Kiyoko Patterson(argued), Assistant United States Attorney, Phoenix Arizona,for Plaintiff-Appellee.


OPINION

TASHIMA, Circuit Judge:

Jesus Alvarez-Ulloa (“Ulloa”)1 appeals his conviction forillegal reentry under 8 U.S.C. § 1326(a) and the districtcourt’s order revoking his supervised release based on thejury’s guilty verdict in the illegal reentry case. During juryselection, Ulloa unsuccessfully challenged three of thegovernment’s peremptory strikes under Batson v. Kentucky,476 U.S. 79 (1986). At trial, Ulloa asserted the insanitydefense, arguing that as a former boxer he suffered from braindamage that prevented him from understanding the nature ofhis presence in the United States. After the jury deadlocked,the district court clarified that the insanity defense would notapply if while Ulloa was illegally present in the United Stateshe was sane for a long enough period to have left the country. The jury subsequently returned a guilty verdict.

On appeal, Ulloa contends, first, that the district courterred in rejecting his Batson challenges, and, second, that thesupplemental instruction impermissibly coerced the jury andconstructively expanded the indictment. We have jurisdictionunder 28 U.S.C. § 1291. We affirm.

I.

Over a period of about twelve years, betweenapproximately 1984 and 1996, Ulloa was first an amateur and

1 Our ordinary convention is to refer to litigants with hyphenatedHispanic surnames by the name appearing first in the hyphenated series. However, because Alvarez-Ulloa uses the second of his two surnames, weadopt that nomenclature here.


later a professional boxer. Although Ulloa was raised andappears to have lived primarily in Arizona, he is a citizen ofMexico, a designation responsible for many of his recentlegal problems.

In 2010, Ulloa was removed to Mexico following aconviction for attempted illegal reentry after deportation, inviolation of 8 U.S.C. §§ 1326(a), (b)(2). Ulloa subsequentlyreentered the United States. Local police found and detainedUlloa in October 2011 at a resort in Phoenix after hereportedly attempted to steal a copy of the roster of theArizona Cardinals.

After concluding that Ulloa was a citizen of Mexicosubject to a previous deportation order, the governmentcharged Ulloa with illegal reentry. The indictment charged,in full:

On or about October 23, 2011, at or nearPhoenix, in the District of Arizona, JESUSALVAREZ-ULLOA, an alien, was found inthe United States of America after havingbeen previously denied admission, excluded,deported, and removed from the United Statesat or near San Ysidro, California, on or aboutDecember 17, 2010, and not having obtainedthe express consent of the Attorney General orthe Secretary of Homeland Security to reapplyfor readmission.

In violation of Title 8, United States Code,Sections 1326(a) and (b)(1).


During jury selection, Ulloa raised three Batsonchallenges to the government’s peremptory strikes. Ulloaalleged that the government’s strikes of Panelists 25, 29, and30 were motivated by impermissible racial discrimination. According to Ulloa’s counsel, there were five Hispanicindividuals in the venire of thirty-six potential jurors, and thegovernment used three of its seven peremptory strikes onHispanic individuals.

The district court discussed each of the prospective strikeswith the government and Ulloa’s counsel.

At the court’s prompting, the government first addressedthe strike of Panelist 25. The government asserted it struckPanelist 25 because he “was a pre-med major in sportsmedicine and [had] experience in that area and [was]involved in football, karate, and boxing.” Additionally,Panelist 25 had previously attended a pro-immigration reformrally with his mother, which, the government suggested,might indicate potential bias in an immigration-relatedprosecution.

Panelist 29 was struck, according to the government,because she was a third-year law student and had previouslyworked for a criminal defense firm. The governmentcontended that this background was “indicative of somebodywho would be less trusting of the government in immigrationprosecution.”

Finally, the government asserted that it struck Panelist 30because she had a son who had been convicted of armedrobbery, and reported other negative experiences with lawenforcement officers, including having had her housesearched by law enforcement officers while she was not


home. Although Panelist 30 had also noted positiveexperiences with police during questioning, the governmentstated she was struck because of a potential bias against lawenforcement.

The court sustained each of the strikes. Workingbackwards, the court explained that with respect to Panelist30:

[T]he government has articulated a faciallyneutral ground that is actually well supportedby the witness’s answers that reflected anegative experience with law enforcement. Now, she also had positive experiences, but itwas apparent that she had some continuingsensitivity and feeling. And so I don’t haveany difficulty concluding that is a faciallyneutral ground for exercising the strike.

The court next addressed Panelist 29:

I find that both articulated grounds are faciallyneutral. She’s two years out of law school. She’s worked in law offices. . . . I’ve neverbeen able to get on a jury my whole life. Nobody would let me on because I was alawyer. And I didn’t take it personally. Butthat’s accepted wisdom of not havingsomeone on the jury who may be in a positionto, A, second guess you and, B, carry perhapsspecial influence into the deliberations of thejury because of the legal training. And herinvolvement in immigration criminal defensecertainly suggests a special interest and


sensitivity that, for purposes of a peremptorychallenge, is facially neutral.

The court spent the most time considering the strike ofPanelist 25. At one point, it noted that “it’s the perception ofthe prosecutor, not my perception that matters.” The courteventually concluded:

I’m satisfied that whether or not the [rally]was specifically focused on Sheriff Arpaio orjust generally focused on pro-immigration,that is a facially neutral ground to exercise thestrike because it reflects a very substantialinterest in this area of policy that most of ushave strong views about this, but the fact thathe went to a rally reflects a much higher levelof interest. And so all of the objections areoverruled.

No further discussion of Ulloa’s Batson challenges occurred.

At trial Ulloa stipulated that he had been found on orabout October 23, 2011, in Phoenix, noting that it would be“surprising” if the government failed to prove the elements ofillegal reentry. Ulloa intended to build his case on theinsanity defense, alleging that, due to injuries he sustainedduring his career as a professional boxer, he was unable tounderstand the wrongfulness of his actions. The governmentpresented evidence that Ulloa had been previously deportedand was found in the United States in October 2011, andevidence suggesting that Ulloa did not have a mental diseaseor defect. Ulloa presented evidence suggesting that he in factsuffered from chronic traumatic encephalopathy, a disease


which – according to his expert witness – could haverendered him legally insane.

Under the jury instructions, for Ulloa to be found guiltyunder § 1326(a), the government was required to prove that: (1) Ulloa “was deported from the United States on or aboutDecember 17, 2010,” (2) Ulloa “voluntarily entered theUnited States,” (3) “after entering the United States, [Ulloa]knew that he was in the United States and knowinglyremained,” (4) “on or about October 23, 2011, [Ulloa] wasfound in the United States,” and (5) “[Ulloa] was an alien atthe time of [his] entry into the United States.” The courtfurther instructed that “[a] defendant is insane only if at thetime of the crime charged, one, the defendant had a severemental disease or defect; and two, as a result, the defendantwas unable to appreciate the nature and quality or thewrongfulness of his acts.”

Several hours after the jury began deliberations, the courtreceived a note from the foreperson, which stated:

The jury needs clarification on the defendant’smental state needed to consistently meet the,quote, ‘insane,’ close quote, criteria for theentire time he was here illegally, (from2010–2011). Specifically, if the defendanthad any moments of mental clarity during thattime or he was able to appreciate the natureand quality or wrongfulness of his acts, doesthat negate the defense of insanity?

After consulting with the parties, the court answered thequestion by referring the jury to the original jury instructions. Thereafter, the jury sent out another note stating:


We currently seem to be unable to reach aunanimous decision on a verdict and wouldlike some direction from the court on what todo at this point.

The court responded:

If the Court gives a more specific answer toyour previous question, would you wish tocontinue to deliberate to try to reach aunanimous verdict?

After the jury replied affirmatively, the court provided thejury with the following supplemental instruction in responseto its question:

The insanity defense would be negated if,after entering the United States, the Defendantceased to be insane for a long enough timethat he reasonably could have left the UnitedStates, and he then knowingly remained in theUnited States for that time.

Thirty-seven minutes later, the jury returned a guilty verdict. The district court subsequently sentenced Ulloa to 48 months’imprisonment.

II.

A.

We first address Ulloa’s contention that the district courtimproperly rejected his Batson challenges. We normally willnot set aside a district court’s findings under Batson unless


clearly erroneous. United States v. De Gross, 960 F.2d 1433,1442 (9th Cir. 1992). However, we review de novo whetherthe district court properly applied Batson. See United Statesv. Collins, 551 F.3d 914, 919 (9th Cir. 2009).

Under Batson, “[p]urposeful racial discrimination inselection of the venire violates a defendant’s right to equalprotection because it denies him the protection that a trial byjury is intended to secure.” 476 U.S. at 86. In ruling on aBatson challenge, a district court must apply a three-partframework:

First, a defendant must make a prima facieshowing that a peremptory challenge has beenexercised on the basis of race. Second, if thatshowing has been made, the prosecution mustoffer a race-neutral basis for striking the jurorin question. Third, in light of the parties’submissions, the trial court must determinewhether the defendant has shown purposefuldiscrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003) (citationsomitted).

At Batson’s third step, “the trial court must decide notonly whether the reasons stated are race-neutral, but whetherthey are relevant to the case, and whether those stated reasonswere the prosecutor’s genuine reasons for exercising aperemptory strike, rather than pretexts invented to hidepurposeful discrimination.” Green v. LaMarque, 532 F.3d1028, 1030 (9th Cir. 2008). The trial court “must undertakea sensitive inquiry into such circumstantial and directevidence of intent as may be available.” Id. (quoting Batson,


476 U.S. at 93). Such evidence may include “theprosecutor’s demeanor; . . . how reasonable, or howimprobable, the explanations are; and . . . whether theproffered rationale has some basis in accepted trial strategy.” Miller-El, 537 U.S. at 339. The court cannot simply acceptthe prosecutor’s reasons as facially neutral and stop there; itmust make an explicit determination at the third step. SeeGreen, 532 F.3d at 1030–31; United States v. Alanis,335 F.3d 965, 969 (9th Cir. 2003).

Here, the district court did not reach the third step of theBatson framework. Although it questioned both thegovernment and Ulloa’s counsel about the strikes, the courtdispensed with each challenge by determining that thegovernment had asserted facially neutral grounds. The courtconducted no further analysis after determining that faciallyneutral grounds existed. At one point, the court noted that“it’s the perception of the prosecutor, not my perception thatmatters.” This comment suggests the court believed itsresponsibility under the Batson framework was merely toestablish the presence of a facially neutral ground. Yet ourprecedents specifically require that the court evaluate thepersuasiveness of the government’s facially neutral reason. See Green, 532 F.3d at 1030–31; Alanis, 335 F.3d at 969. The district court thus erred in failing to reach Batson’s thirdstep.

B.

Faced with an improper application of the Batsonframework, we may decide de novo whether thegovernment’s strikes were motivated by purposefuldiscrimination. See Green, 532 F.3d at 1033; Alanis,335 F.3d at 969 n.5; see also United States v. Stephens,


514 F.3d 703, 713 (7th Cir. 2008). Alternatively, we mayremand to the district court, either for a factual hearing or fora new trial. See United States v. Thompson, 827 F.2d 1254,1261–62 (9th Cir. 2007); see also United States v. Kimbrel,532 F.3d 461, 469 (6th Cir. 2008); United States v. Torres-Ramos, 536 F.3d 542, 561 (6th Cir. 2008). Because therecord here is well-developed and there are not outstandingissues that would benefit from an additional hearing longafter the original trial, we assess now whether Ulloa provedpurposeful discrimination in violation of Batson.

Ulloa contends that impermissible racial discriminationinhered in the government’s strikes of three prospectivejurors: (1) Panelist 25 – a sports enthusiast and former pre-med major who had attended a pro-immigration rally;(2) Panelist 29 – a student at a local law school who hadworked in criminal defense; and (3) Panelist 30 – a womanwho described negative experiences with law enforcement,including a police raid on her property. Each of theseprospective jurors was Hispanic.

Ulloa has made out a prima facie case under step one ofBatson that each of these strikes was based on purposefulracial discrimination. To make out a prima facie case, adefendant must show only “that the totality of the relevantfacts gives rise to an inference of discriminatory purpose.” Batson, 476 U.S. at 93–94; see Johnson v. California,545 U.S. 162, 173 (2005) (concluding that Batson’s first stepis not a “more likely than not” standard). The challenges heremeet that modest bar. Out of a venire of thirty-six potentialjurors containing five Hispanic individuals, the governmentused three of its seven peremptory strikes on Hispanics. Given the racially charged context of this case, thegovernment’s striking sixty percent of Hispanic individuals


and approximately eight percent of non-Hispanic individualsis sufficient to ground a prima facie case. Cf. id. at 164–65(concluding that the defendant made out a prima facie casebecause the prosecution used three of its twelve challenges tostrike the only African-American prospective jurors from thevenire).

Likewise, the government articulated race neutraljustifications for each of the challenged strikes. Thegovernment stated that Panelist 25 was struck because hisbackground in sports medicine and apparent interest inimmigration policy might have rendered him reluctant toconvict a former boxer of an immigration violation. Panelist29, according to the government, was struck out of concernthat her experience in criminal defense might bias her againstthe government. And Panelist 30 was struck because of thegovernment’s concern that an individual who had negativeexperiences with law enforcement might be biased in favor ofa criminal defendant. Each of these purported reasons israce-neutral and has support in the record.

Ulloa’s challenges thus turn on step three of the Batsonframework. In addressing step three, we emphasize that, asthe party alleging unconstitutional discrimination, Ulloa bearsthe ultimate burden. Yee v. Duncan, 463 F.3d 893, 895 (9thCir. 2006). We examine Ulloa’s challenges at step threeseriatim.

First, Panelist 29 – the law student with criminal defenseexperience. In general, the concern that jurors with legalexperience will bias or commandeer a jury is widespreadamong lawyers, and other courts have accepted it as apersuasive justification at step three of Batson. See UnitedStates v. Bolden, 545 F.3d 609, 613–14 (8th Cir. 2008). More


importantly, there is simply no evidence in the record that thegovernment’s concern related to anything other than thepanelist’s legal background, i.e., that it was pretextual. Ulloasuggests that the government’s failure to strike severalsimilarly situated prospective jurors indicates adiscriminatory motive. Comparative juror analysis is a usefultool at Batson step three, Miller-El v. Dretke, 545 U.S. 231,241 (2005), and failure to strike similarly situated veniremembers can ground a conclusion that purposefuldiscrimination occurred, see Green, 532 F.3d at 1030. However, Ulloa does not point to any panelists not struckwho actually were lawyers or law students, and who wouldhave raised the same concern the government articulated asjustification for its strike of Panelist 29. Thus, Ulloa cannotsatisfy his burden of showing purposeful racialdiscrimination.

Second, Panelist 30 – the woman who disclosed negativeencounters with law enforcement. This challenge similarlyfails. Other courts have indicated that a prospective juror’spotential distrust of law enforcement may ground aperemptory strike. See Edwards v. Roper, 688 F.3d 449, 455(8th Cir. 2012). That justification is particularly convincingin a case such as this one, where the prospective jurordescribed deeply traumatic experiences involving lawenforcement, including having firearms pointed at herchildren during a police raid. As with Panelist 29, there is noevidence in the record that the government was concernedabout race and Ulloa cannot point to panelists not struck whowere situated similarly to Panelist 30. Although several non-Hispanic jurors who were not struck disclosed familymembers convicted of crimes, none revealed the same kind oftraumatic encounter with police as did Panelist 30.


Finally, Panelist 25 – the former sports medicine studentwho had attended a pro-immigration rally. As with the otherchallenged strikes, there is no evidence in the record that thegovernment was concerned about this panelist’s race. Comparative analysis reveals no similarly situated non-Hispanic jurors who were not struck. Ulloa identifies Panelist45, who had a close friend involved in boxing, as a similarlysituated juror. However, Panelist 45 differed from Panelist25 in at least two meaningful ways. First, Panelist 45’sexperience with sports was apparently casual and second-hand, rather than first-hand as part of a course of academictraining. Second, Panelist 25 had both a sports backgroundand a potential interest in immigration policy, making him amore attractive target for a strike than Panelist 45. Althoughthe government’s decision to strike a Hispanic venire memberfor a purported interest in immigration policy perhaps raisesquestions about motive, the burden of showing purposefuldiscrimination rests with Ulloa. In a case, such as this one,where the statistical evidence is not overwhelming andcomparative analysis is unhelpful, Ulloa cannot meet thatburden.

We hold that, although the district court erred in applyingthe Batson framework, Ulloa failed to show purposefuldiscrimination, and the record does not support such a findingon de novo review. We therefore reject Ulloa’s Batsonchallenges.

III.

A.

Ulloa next contends that the district court’s supplementalinstruction impermissibly coerced the jury’s verdict in


violation of the Sixth Amendment. Although we review thedecision to give a supplemental jury instruction for abuse ofdiscretion, see United States v. Solomon, 825 F.2d 1292, 1295(9th Cir. 1987), we review de novo whether a trial court’sactions impermissibly coerced a jury’s verdict, United Statesv. Williams, 547 F.3d 1187, 1202 n.14 (9th Cir. 2008).

In resolving Ulloa’s challenge, we first examine whetherthe supplemental instruction was substantively correct. Ulloawas charged with the crime of being “found in” the UnitedStates after having been removed, one of “three distinctsubstantive offenses” under § 1326(a). United States v.Covian-Sandoval, 462 F.3d 1090, 1094 (9th Cir. 2006). It isan affirmative defense to any federal crime, including thoseunder § 1326, that “at the time of the commission of the actsconstituting the offense, the defendant, as a result of a severemental disease or defect, was unable to appreciate the natureand quality or the wrongfulness of his acts.” 18 U.S.C.§ 17(a).

Although we have not had occasion to apply the insanitydefense to the “found in” offense under § 1326(a), ourprecedents offer guidance on how the defense operates. Illegal reentry is a continuing offense, meaning that theoffense “commences with the illegal entry, but is notcompleted until discovery.” United States v. Hernandez-Guerrero, 633 F.3d 933, 936 (9th Cir. 2011). When adefendant asserts an affirmative defense to a continuingoffense, he generally must show that the requirements for thedefense were satisfied for the entire period in question. SeeUnited States v. Bailey, 444 U.S. 394, 412 (1980) (noting thatan individual using a duress defense to defend a charge ofescape, another continuing offense, “must . . . offer evidencejustifying his continued absence from custody as well as his


initial departure”); see also United States v. Williams,791 F.2d 1383, 1388 (9th Cir. 1986). Continuing offenses, bytheir nature, contemplate extended periods of proscribedcriminal conduct. It would be anomalous for a defense thatnegates culpability for only one portion of a continuingoffense’s criminal period to completely bar conviction.

The Tenth Circuit dealt with a case which involved asituation similar to the case at bench, in which the defendantasserted duress as a defense to an illegal reentry charge under§ 1326(a). See United States v. Portillo-Vega, 478 F.3d 1194(10th Cir. 2007). There, the defendant claimed that heillegally reentered the United States because he fearedpersecution at the hands of Mexican police. Id. at 1198–99. The court reasoned that for the defendant to be entitled to aduress instruction, he needed to adduce evidence to show notonly that he reasonably feared death or serious bodily injurywhen he reentered, but also throughout the duration of hisillegal stay. Id. at 1201.2 The logic of Portillo-Vega applieswith equal force to the insanity defense, which is historicallyand conceptually analogous to duress. See Powell v. Texas,392 U.S. 514, 535–36 (1968) (plurality opinion). To succeedin his defense, Ulloa thus needed to prove that he was legallyinsane for virtually the entire duration of his illegal stay, suchthat he could not reasonably have left the United States. Wetherefore conclude that the district court’s supplementalinstruction was substantively correct.

2 Specifically, the court noted that for the duress defense to abrogateculpability under § 1326(a), the defendant must “proffer evidence of abona fide effort to surrender or return to custody as soon as the claimedduress or necessity had lost its coercive force.” Portillo-Vega, 478 F.3dat 1201 (quoting Bailey, 444 U.S. at 415).


B.

We next consider whether the supplemental instructionwas impermissibly coercive. We evaluate whether a trialcourt’s supplemental charge to a jury was coercive “in itscontext and under all the circumstances.” Smith v. Curry,580 F.3d 1071, 1080 (9th Cir. 2009) (quoting Lowenfeld v.Phelps, 484 U.S. 231, 237 (1988)). When a trial courtresponds to jury questions “every effort must be undertakento avoid influencing or coercing a jury to reach one verdictover another.” United States v. Evanston, 651 F.3d 1080,1084 (9th Cir. 2011). “Extraordinary caution must beexercised when acting to break jury deadlock.” Id. at 1085. However, the trial court has a responsibility to assist the juryin applying the proper legal standards. When the jury “makesexplicit its difficulties by, for example, asking a question, thetrial court should clear [the jury’s difficulties] away withconcrete accuracy.” Arizona v. Johnson, 351 F.3d 988, 994(9th Cir. 2003) (quoting Bollenbach v. United States,326 U.S. 607, 612–13 (1946) (internal quotation marksomitted) (alteration in original)).

In Smith, the trial court faced a jury deadlocked as a resultof a single holdout. 580 F.3d at 1079. The trial courtinstructed the jurors to focus on “specific evidence the courtthought supported the guilty verdict favored by the majorityof jurors.” Id. at 1082. We held the instruction to becoercive, in part, because “the [trial court’s] summary of theevidence was not neutral by any reasonable standard.” Id. at1083. By contrast, in Parker, a state trial court judgeprovided additional instructions to a deadlocked jury,encouraging the jurors to “not hesitate to re-examine [their]views” and to experiment with various deliberation strategies. Parker v. Small, 665 F.3d 1143, 1145–46 (9th Cir. 2011). We


accepted the California Court of Appeal’s conclusion that thetrial judge’s behavior was not coercive, and distinguishedSmith, because the trial court did not “attempt to recast theevidence in a light more favorable to the prosecution.” Id. at1149; cf. Johnson, 351 F.3d at 993 (upholding, under theabuse of discretion standard, a trial court’s supplementalinstruction defining “consent” in a sexual assault prosecutionthrough “a non-exclusive list of examples of what ‘withoutconsent’ includes”).3

Conducting the holistic, contextual inquiry required byour precedents, we conclude that the supplemental instructionin this case was not coercive. Ulloa’s central argument is thatthe supplemental instruction indicated Ulloa’s mental defectwas of a kind that could have relented for long enough tomake him aware of the wrongfulness of his presence in theUnited States, thereby putting a pro-government gloss on theevidence. Contrary to Ulloa’s assertion, the supplementaljury instruction did not suggest that Ulloa’s mental defectcould have relented. Rather, it merely informed the jury thatif the defect had relented that would be legally dispositive,without betraying a stance on whether the defect had relented. Cf. Parker, 665 F.3d at 1149; Smith, 580 F.3d at 1083. Moreover, the district court gave the jury the supplementalinstruction only after the jury made clear that it did notunderstand the legal standard and failed to reach a verdict onthe original instructions. The supplemental instruction wasbrief, direct, and does not appear to have been directed at any

3 Parker, like Smith, arose in the habeas context, requiring that we applythe deferential standard of review prescribed by the AEDPA, 28 U.S.C.§ 2254(d). Parker, 665 F.3d at 1147. However, our explanation in thatcase of how the facts at hand differed from those in Smith remainspersuasive authority.


particular juror. The district court did not err in giving thesupplemental instruction.

C.

Ulloa also contends that the supplemental jury instructionconstituted a constructive amendment of the indictment inviolation of the Fifth Amendment. We review de novowhether a constructive amendment took place. United Statesv. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006). A constructiveamendment occurs “when the charging terms of theindictment are altered, either literally or in effect, by theprosecutor or a court after the grand jury has last passed uponthem.” United States v. Ward, 747 F.3d 1184, 1189 (9th Cir.2014) (quoting United States v. Van Stoll, 726 F.2d 584, 586(9th Cir. 1984)); see also United States v. Dipentino, 242 F.3d1090, 1094–95 (9th Cir. 2001); Howard v. Dagget, 526 F.2d1388, 1389–90 (9th Cir. 1975) (per curiam). For aconstructive amendment to inhere, jury instructions must“diverge materially” from the indictment and evidence musthave been “introduced at trial that would enable the jury toconvict the defendant for conduct with which he was notcharged.” Ward, 747 F.3d at 1191. If the possibility existsthat “the defendant’s conviction could be based on conductnot charged in the indictment,” then a constitutional violationresults because an amendment “destroy[s] the defendant’ssubstantial right to be tried only on charges presented in anindictment.” Id. (quoting Stirone v. United States, 361 U.S.212, 217 (1960) (alteration in original)).

For example, in Howard we found a constructiveamendment where a defendant was indicted for havingbusiness relationships with two particular prostitutes, but thetrial court’s instructions did not “specifically reference the


two women named in the indictment.” Ward, 747 F.3d at1190–91 (citing Howard, 526 F.2d at 1389). We found aconstructive amendment in this circumstance because thegovernment had introduced evidence at trial that thedefendant had relationships with various prostitutes asidefrom the individuals mentioned in the indictment. Howard,526 F.2d at 1389–90.

We have not previously addressed whether a constructiveamendment occurs when an indictment for a continuingoffense does not specifically mention the duration of thatoffense. Seizing on this ambiguity, Ulloa argues that becausethe indictment on which he was tried mentioned only hisremoval and found-in dates and did not discuss the timebetween when Ulloa reentered the country and when he wasfound, the supplemental jury instruction “expand[ed] thetemporal scope of the acts that the jurors had to concludewere negated by Mr. Ulloa’s insanity defense” and, thus,constituted a constructive amendment.

To resolve Ulloa’s challenge, we must determine whetherthe indictment adequately “presented” the period of timebetween when Ulloa reentered and when he was found inPhoenix such that his rights were not abridged. Stirone,361 U.S. at 217. We note first that an indictment generallymust articulate only “the crime charged,” “the essentialelements of the indicated crime,” and “the acts alleged toconstitute the offense in detail sufficient to bring them withinthe scope of the offense and sufficient to inform the accusedgenerally of the acts attributed to him and the time of theircommission.” Elder v. United States, 142 F.2d 199, 200 (9thCir. 1944). In the case of the “found in” crime with whichUlloa was charged, those elements are that the defendant: (1) is an alien; (2) had previously been removed; (3) was


subsequently found in the United States; and (4) did not havethe permission of the Attorney General to reapply foradmission. See 8 U.S.C. § 1326(a); United States v. Parga-Rosas, 238 F.3d 1209, 1211 (9th Cir. 2001). An indictmentfor the found in crime need not mention the actual reentrybecause that concept is “embedded in the ‘found in’ offense,”as must be, by extension, the time spent in the United Statesbetween when one reenters and is found. See United Statesv. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000).

Reentry and time spent inside the United States afterreentry are embedded within § 1326(a)’s elements becauseillegal reentry is a continuing offense. United States v.Hernandez-Guerrero, 633 F.3d 933, 936 (9th Cir. 2011). Because continuing offenses contemplate conduct which isopen-ended in time, we generally do not require thegovernment to mention each day in the charging document. See United States v. Forrester, 616 F.3d 929, 941 (9th Cir.2010) (noting that an indictment for conspiracy identifyingthe conspiracy’s end date need not specify when theconspiracy began); see also United States v. Spaeni, 60 F.3d313, 315 (7th Cir. 1995) (“[O]nly in rare cases is time amaterial element of a charged offense, even where continuingoffenses . . . are alleged.”).

Given that the concepts of reentry and illegal presence areembedded in § 1326(a), we conclude that, in this case, noconstructive amendment occurred.4 Because it is well-established in this circuit that an indictment under § 1326(a)need not specifically denote the duration of a defendant’s

4 We do not address whether, in the context of a non-continuing offense,an indictment’s failure to mention a particular period of time laterreferenced in jury instructions may give rise to a constructive amendment.


illegal presence, the indictment provided Ulloa with adequatenotice that he was being charged with a course of criminalconduct that began when he reentered the United States. Thesupplemental jury instruction thus was not “distinctlydifferent” from the indictment. United States v. Bhagat, 436F.3d 1140, 1145 (9th Cir. 2006); cf. United States v. Patino,962 F.2d 263, 266 (2d Cir. 1992) (noting that the touchstoneof the constructive amendment inquiry is whether “thedefendant was given notice of the ‘core of criminality’ to beproven at trial”) (quoting United States v. Heimann, 705 F.2d662, 666 (2d Cir. 1983) (emphasis added)). The indictmentand supplemental instruction thus did not deprive Ulloa ofany substantive right.

IV.

For the foregoing reasons, we reject Ulloa’s contentions,first, that the government violated Batson in exercising itsperemptory challenges and, second, that the district court’ssupplemental jury instruction impermissibly coerced theverdict and constructively expanded the indictment.

The judgment of the district court (No. 13-10500) and thedistrict court’s order revoking supervised release (No. 13-10501) are AFFIRMED.

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UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUITcdn.ca9.uscourts.gov/datastore/opinions/2015/04/21/13-10500.pdfApr 21, 2015 · involved in football, karate, and boxing.” Additionally,