USA V. LUCIO MEDINA-SUAREZ, No. 20-50294 (9th Cir. 2022)
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Defendant was convicted of attempted illegal entry under 8 U.S.C. Sec. 1325(a). On appeal to the Ninth Circuit, Defendant claimed the district court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry.
The Ninth Circuit reversed Defendant’s conviction. Under United States v. Arnt, 474 F.3d 1159 (9th Cir. 2007) A defendant is entitled to an instruction on a lesser-included offense if 1) the elements of the lesser offense are a subset of the elements of the charged offense and; 2) a jury could rationally find the defendant guilty of the lesser offense and acquit him of the more serious offense.
Here, the government conceded that misdemeanor attempted illegal entry is a less-included offense of felony attempted illegal entry. The Ninth Circuit held that a rational juror could have acquitted Defendant of the more serious offense in favor of convicting him of misdemeanor illegal entry. The only distinct element required for felony attempted illegal entry is a prior conviction for the same crime. Thus, the jury could have rationally chosen the lesser offense by finding that the government failed to prove Defendant was previously convicted under 8 U.S.C. Sec. 1325(a).
Court Description: Criminal Law. The panel vacated a conviction for felony attempted illegal entry in violation of 8 U.S.C. § 1325(a), and remanded for further proceedings, in a case in which the defendant contended that the trial court erred in denying his request for a jury instruction on the lesser-included offense of misdemeanor attempted illegal entry. There was no dispute about the first step of the two-part test for lesser-included instructions: misdemeanor attempted illegal entry is a lesser-included offense of felony attempted illegal entry, in that the elements of the two offenses are the same except that felony attempted illegal entry includes the added element of a prior § 1325(a) conviction. As for the second step of the two-part test, the panel held that the district court abused its discretion in finding that the jury could not rationally find the defendant guilty of the lesser offense and acquit him of the greater offense. Noting that a court may not weigh the evidence in determining whether to give a lesser-included offense instruction, the panel wrote that a rational jury could have surveyed the evidence presented at trial—including the A-file custodian’s testimony on cross-examination—and concluded that it had reasonable doubts about whether the defendant charged in this case was the same defendant named in a prior misdemeanor illegal-entry judgment. The panel concluded UNITED STATES V. MEDINA-SUAREZ 3 that under these circumstances, a lesser-included instruction was required. Because the panel vacated the conviction and remanded, the panel did not reach evidentiary issues raised by the defendant.
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