                                                                            FILED
                              NOT FOR PUBLICATION                            DEC 14 2012

                                                                        MOLLY C. DWYER, CLERK
                         UNITED STATES COURT OF APPEALS                   U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



 UNITED STATES OF AMERICA,                        No. 11-50523

               Plaintiff - Appellee,              D.C. No. 3:11-cr-00517-JLS-1

   v.
                                                  MEMORANDUM *
 JOSE FERNANDO VILLEGAS-
 GUTIERREZ,

               Defendant - Appellant.



                      Appeal from the United States District Court
                         for the Southern District of California
                     Janis L. Sammartino, District Judge, Presiding

                         Argued and Submitted December 3, 2012
                                  Pasadena, California

Before: BERZON, CLIFTON, and IKUTA, Circuit Judges.


        Jose Fernando Villegas-Gutierrez appeals his jury conviction for illegal

reentry after deportation, in violation of 8 U.S.C. § 1326. We affirm the judgment

of the district court.



         *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      1. The district court did not err in refusing to provide Villegas’s requested

jury instruction on official restraint. There was no evidence in the record that

Villegas was under continuous surveillance at any time before or after he crossed

the border into the United States. See United States v. Bello–Bahena, 411 F.3d

1083, 1089 (9th Cir. 2005) (stating that a defendant is entitled to a jury instruction

when the instruction is “supported by law” and has “some foundation in the

evidence” (quoting United States v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000))). The

only evidence of actual surveillance was the triggering of a seismic sensor at the

border which, under our case law, does not constitute official restraint. See United

States v. Vela-Robles, 397 F.3d 786, 789 (9th Cir. 2005).

      The presence of remote-controlled, 24-hour cameras in the area where

Villegas was apprehended does not constitute sufficient evidence that Villegas

entered the United States under continuous observation to merit an official restraint

instruction. In United States v. Castellanos-Garcia, we rejected as “mere

speculation” the defendant’s argument that he could have been observed by one of

the fifteen or more Border Patrol agents in the area where he was arrested. 270

F.3d 773, 776 (9th Cir. 2001). Villegas’s argument that he may have been under

camera surveillance is equally speculative, particularly because the arresting

Border Patrol agent testified that he received no notification regarding Villegas’s


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location after the sensor was triggered, and because it is unlikely that such

information would have been withheld if Villegas had been spotted by agents

monitoring Border Patrol cameras. Accordingly, while Villegas’s proposed jury

instruction on official restraint was supported by law, it lacked any foundation in

the evidence. The district court did not err in declining to issue it.

      2. The district court did not abuse its discretion in admitting the challenged

testimony of the A-file custodian. The court’s in limine ruling reserved the

possibility of defense objections to the custodian’s testimony at trial for lack of

foundation. No such objection was made. Nor was admission of the custodian’s

statements plain error, as the statements did not obviously require that the

custodian be qualified as an expert.

      3. Finally, even assuming that the district court’s limitations on cross-

examination of the A-file custodian violated the Confrontation Clause, any error

was harmless beyond a reasonable doubt. See United States v. Schoneberg, 396

F.3d 1036, 1044 (9th Cir. 2005). Villegas was not prejudiced by the district court’s

restriction. The existence of alternative ways to apply for readmission other than

Form I-212 was not pertinent to the elements of the offense under § 1326. The

relevant question was not whether there was any evidence that Villegas had

applied for permission to reenter but whether there was any evidence that he had


                                           -3-
received such permission. The A-file custodian’s testimony concerning his search

of Villegas’s records was sufficient to indicate that no such permission had been

given. The court’s limitation on cross-examination regarding the possible methods

of applying for permission could not have affected the jury’s assessment of the

evidence concerning whether any permission was actually given.

      The judgment of the district court is AFFIRMED.




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