## Facts

- Jesús Alvarez-Ulloa, a Mexican citizen and former professional boxer, lived in Arizona and sustained substantial head trauma during a lengthy boxing career.
- He was removed from the United States in December 2010 after a conviction for attempted illegal reentry.
- After removal, he reentered the United States without authorization and was found in Arizona in October 2011.
- The United States prosecuted him for illegal reentry after removal under 8 U.S.C. § 1326(a).
- At trial, Alvarez-Ulloa asserted an insanity defense, offering evidence that boxing-related brain injury prevented him from appreciating the wrongfulness of remaining in the United States.
- The district court instructed that even if he was insane at reentry, the jury could convict if he later regained sanity long enough to understand the wrongfulness of reentry and voluntarily depart, but did not.
- The jury convicted him; the district court also revoked his supervised release in a prior case based on the new conviction.

## Issues

1. Whether the district court clearly erred in rejecting Batson challenges to three government peremptory strikes against Hispanic venire members.
2. Whether the insanity-defense instruction incorrectly stated the law, including by allowing conviction if the defendant regained sanity during his post-reentry presence, and whether it violated the Fifth Amendment.
3. Whether the court’s supplemental instruction responding to a jury question on insanity and continued presence was coercive or improper.
4. Whether the evidence required a finding of legal insanity such that the conviction could not stand.

## Decision

- The Ninth Circuit affirmed the conviction under 8 U.S.C. § 1326(a) and affirmed the revocation of supervised release.
- The court held the district court did not clearly err in finding the government’s reasons for the challenged peremptory strikes were race-neutral and not pretextual.
- The court held the insanity instructions, including the supplemental clarification, accurately stated the law because illegal reentry is a continuing offense that includes knowingly remaining in the United States.
- The court held the supplemental instruction was a neutral clarification and was not coercive.
- The court held the jury could reasonably reject the insanity defense based on competing expert testimony and evidence of the defendant’s conduct.

## Legal Principles

- Batson review applies a three-step framework; appellate courts give substantial deference to trial-court determinations regarding the credibility of race-neutral reasons and findings of pretext.
- Illegal reentry under 8 U.S.C. § 1326 is a continuing offense encompassing unlawful entry and knowing, voluntary remaining after removal.
- For a continuing offense, an insanity defense may be defeated if the defendant regains sanity during the course of the offense and then knowingly remains (or is able to depart) while sane.
- A trial court may give a supplemental instruction to answer a jury question if the response is neutral, clarifying, and non-coercive.
- Juries may credit one expert over another; a conviction is supported if a reasonable jury could find the defendant failed to establish legal insanity for the relevant period.

## Conclusion

The Ninth Circuit upheld Alvarez-Ulloa’s § 1326 conviction and supervised-release revocation, ruling that the government’s peremptory strikes survived Batson review and that the insanity instructions properly treated illegal reentry as a continuing offense for which later-regained sanity can establish culpability for knowingly remaining in the United States.


United States v. Alvarez-Ulloa, 784 F.3d 558 (9th Cir. 2015)