## Facts

- Alfredo Hernandez-Hernandez, a Mexican citizen previously deported twice, spent an evening in Palomas, Mexico consuming alcohol and marijuana to the point of blackout.
- He later claimed he had no memory of crossing the border and could not say whether his presence in the United States was voluntary.
- After regaining consciousness, he was found in the United States and arrested for illegal reentry.
- During Border Patrol questioning, he admitted he was a Mexican national and had no legal documentation to be in the United States.
- A records check revealed a criminal history and confirmed his prior deportations.
- Federal authorities charged him under 8 U.S.C. § 1326(a) and (b), alleging he was unlawfully “found in” the United States after removal without permission to reenter.
- Before trial, the government moved to exclude evidence of voluntary intoxication; Hernandez proffered (i) his own blackout/amnesia testimony, (ii) expert testimony on “intoxicant amnesia,” and (iii) a witness who observed he was intoxicated and disoriented after arrest.

## Issues

1. Whether excluding evidence of voluntary intoxication and resulting amnesia, offered to support a theory that the defendant may have been brought into the United States involuntarily, violated the Fifth Amendment due process right and Sixth Amendment compulsory process right to present a defense.
2. Whether, in a § 1326 “found in” prosecution, voluntary intoxication/amnesia evidence is admissible to negate the offense’s mental element or to support an involuntary-entry theory absent affirmative evidence of abduction or involuntary transport.

## Decision

- The Tenth Circuit affirmed the district court’s evidentiary ruling and the conviction and sentence.
- Excluding the proffered intoxication/amnesia evidence did not violate the defendant’s constitutional right to present a defense.
- The court held the proffer was speculative because it lacked a non-conjectural connection to a recognized defense such as actual involuntary entry.
- The court approved exclusion under ordinary evidentiary principles governing relevance and the risk of confusion or wasted time.
- The defendant’s conditional guilty plea and 21-month sentence remained intact.

## Legal Principles

- The constitutional right to present a defense is fundamental but not absolute; it yields to generally applicable evidentiary rules that serve fairness and reliability and are not arbitrary or disproportionate.
- A defendant is not entitled to present evidence that merely invites speculation and does not materially advance a legally cognizable defense.
- In a § 1326 “found in” case, voluntary intoxication and amnesia, without affirmative evidence of involuntary transport or similar facts negating voluntariness, may be excluded as irrelevant or as substantially outweighed by risks identified in Fed. R. Evid. 403.
- A genuine involuntary-entry defense may be legally cognizable if supported by evidence, but a lack of memory alone does not supply that support.

## Conclusion

The court upheld the exclusion of voluntary intoxication and blackout evidence because it did not meaningfully support a recognized defense to a § 1326 “found in” charge and would have prompted conjecture, so its exclusion under standard evidentiary rules did not infringe the defendant’s Fifth or Sixth Amendment rights.


United States v. Hernandez-Hernandez, 519 F.3d 1236 (10th Cir. 2008)