                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 04-50013
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-03-01462-DMS
CARMELO BELLO-BAHENA,
             Defendant-Appellant.
                                      

UNITED STATES OF AMERICA,                 No. 04-50155
                Plaintiff-Appellee,
               v.                           D.C. No.
                                          CR-02-03377-GT
CARMELO BELLO-BAHENA,
                                             OPINION
            Defendant-Appellant.
                                      
      Appeals from the United States District Court
         for the Southern District of California
 Dana M. Sabraw and Gordon Thompson, District Judges,
                       Presiding

                  Argued and Submitted
          October 6, 2004—Pasadena, California

                    Filed June 15, 2005

     Before: Harry Pregerson, A. Wallace Tashima, and
              Richard A. Paez, Circuit Judges.

                  Opinion by Judge Paez




                           7153
              UNITED STATES v. BELLO-BAHENA          7155


                       COUNSEL

Ramzi G. Nasser, Federal Defenders of San Diego, Inc., San
Diego, California, for the defenant-appellant.
7156               UNITED STATES v. BELLO-BAHENA
Carol C. Lam, United States Attorney, San Diego, California;
Roger W. Haines, Jr., Assistant U.S. Attorney, Chief, Appel-
late Section, Criminal Division, San Diego, California; Randy
K. Jones, Assistant U.S. Attorney, San Diego, California;
Mark R. Rehe, Assistant U.S. Attorney, San Diego, Califor-
nia, for the plaintiff-appellee.


                               OPINION

PAEZ, Circuit Judge:

   Carmelo Bello-Bahena (“Bello-Bahena”) appeals his con-
viction and sentence for being a deported alien found in the
United States in violation of 8 U.S.C. § 1326(a).1 Bello-
Bahena argues that 1) the district court erroneously denied his
motion for judgment of acquittal because there was insuffi-
cient evidence to conclude that he was free from official
restraint, 2) the district court erred in rejecting Bello-Bahena’s
proposed jury instruction regarding official restraint, and 3)
the district court erred in refusing to dismiss the indictment
for failure to allege certain elements of the offense. We have
jurisdiction pursuant to 28 U.S.C. § 1291, and we reverse and
remand for a new trial.2

                                     I.

   On March 6, 2003, United States Border Patrol Agent Este-
  1
     In addition, in appeal No. 04-50155, Bello-Bahena appeals his sentence
for violation of supervised release for a prior conviction under § 1326. The
district court found him in violation of supervised release on the sole basis
of his conviction at issue in appeal No. 04-50013. We consolidated Bello-
Bahena’s appeal of the judgment of conviction with his appeal of the sen-
tence for violation of supervised release.
   2
     Because the sole basis for the judgment finding Bello-Bahena in viola-
tion of supervised release was his § 1326 conviction, we also vacate that
judgment and remand for further proceedings.
                   UNITED STATES v. BELLO-BAHENA                      7157
ban Rodriguez was performing line watch duties in Hagen’s
Pond, a desolate area near the United States/Mexico border.
At about 3:00 a.m., Agent Rodriguez received a radio alert
from Agent Bruce Drake, who was operating a “night scope.”3
Drake told Rodriguez that he had observed a group of people
heading north in the area. Drake then guided Rodriguez and
two other agents to a location approximately one mile north
of the border, where Bello-Bahena was hiding in some brush.
In response to questioning by Agent Rodriguez, Bello-Bahena
stated that he was a Mexican citizen and did not have docu-
ments to be in the United States. Bello-Bahena was arrested
and transported to the Campo Border Patrol Station for pro-
cessing.

   The government filed an indictment charging Bello-Bahena
with being a deported alien “found in” the United States in
violation of 8 U.S.C. § 1326(a). Bello-Bahena entered a not
guilty plea. Prior to trial, Bello-Bahena moved to dismiss the
indictment for failure to allege that he 1) voluntarily entered
the United States, 2) was inspected and admitted by an immi-
gration officer or actually and intentionally evaded inspection
at the nearest inspection point, and 3) knew that he was in the
United States. The district court denied the motion.

   At trial, Agent Rodriguez testified that Agent Drake had
detected Bello-Bahena with his scope and that Drake guided
Rodriguez to Bello-Bahena’s location. Agent Rodriguez
stated that Bello-Bahena was under constant surveillance by
Agent Drake from the time Drake notified Rodriguez of
Bello-Bahena’s presence until his apprehension, but Rodri-
guez testified that he had “no idea” when Drake first saw
Bello-Bahena.

   At the close of the government’s evidence, Bello-Bahena
  3
   According to Agent Rodriguez, a night scope is “a telescope that’s
mounted on the back of a pickup and it picks up body heat which is con-
nected to a television monitor and it brings out an image of an individual.”
7158            UNITED STATES v. BELLO-BAHENA
moved for a judgment of acquittal pursuant to Federal Rule of
Criminal Procedure 29. The district court denied the motion.

   Bello-Bahena requested a jury instruction explaining that a
defendant may not be convicted of being found in the United
States in violation of 8 U.S.C. § 1326 if he was under “official
restraint” from the moment he crossed the border, and
explaining that official restraint includes constant surveillance
by border agents. In support of the proposed instruction,
defense counsel pointed to Agent Rodriguez’s testimony that
Bello-Bahena was under constant surveillance up to the time
of his arrest. The prosecution objected to the instruction on
the ground that no evidence showed that Bello-Bahena was
observed as he crossed the border. The district court denied
Bello-Bahena’s proposed instruction on the basis of its con-
clusion that constant surveillance does not amount to official
restraint. The court then gave an instruction stating that the
government had to prove three elements: “First, the defendant
is an alien; second, the defendant was deported from the
United States; and third, the defendant voluntarily reentered
the United States without the consent of the Attorney General
of the United States or his designated successor or the Depart-
ment of Homeland Security.”

  The jury returned a guilty verdict. Following entry of the
judgment of conviction, Bello-Bahena timely appealed.

                               II.

   Bello-Bahena first argues that the district court erred in
denying his motion for judgment of acquittal. We review de
novo a district court’s denial of a motion for judgment of
acquittal. United States v. McNeil, 320 F.3d 1034, 1035 (9th
Cir. 2003). We must view the evidence in the light most
favorable to the government and determine whether any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt. United States v. Gonzalez-
Torres, 309 F.3d 594, 598 (9th Cir. 2002).
                   UNITED STATES v. BELLO-BAHENA                       7159
   [1] 8 U.S.C. § 1326 makes it a crime for a person who pre-
viously has been deported to enter, attempt to enter, or at any
time be found in the United States.4 Physical presence in the
country is insufficient to convict a defendant for being “found
in” the United States. The government also must prove that
the individual “entered the United States free from official
restraint at the time officials discovered or apprehended him.”
United States v. Ruiz-Lopez, 234 F.3d 445, 448 (9th Cir.
2000), as amended (2001); see also United States v. Parga-
Rosas, 238 F.3d 1209, 1213 (9th Cir. 2001) (explaining that
an alien who is physically present in the United States is not
deemed to have entered “if he is still under official restraint
at the time he is found”). The burden is on the government to
establish lack of official restraint. United States v.
Castellanos-Garcia, 270 F.3d 773, 775 (9th Cir. 2001).

   [2] It is well established in this circuit that official restraint
includes constant governmental observation or surveillance
from the moment of entry, and that those who are under such
surveillance for the entire time they are present cannot be
found to have entered the United States for purposes of
§ 1326. United States v. Vela-Robles, 397 F.3d 786, 788 (9th
Cir. 2005). Constant surveillance will bar conviction even if
the alien is unaware that he is being observed and even if he
is arrested at a point “well past the point of entry.” Ruiz-
Lopez, 234 F.3d at 448 (citing Matter of Pierce, 141 I. & N.
Dec. 467 (BIA 1973)). Thus, we have reversed a “found in”
conviction where the alien was under continuous observation,
except for a number of seconds, by one of two agents from
the time he crossed the border until his apprehension.
Gonzalez-Torres, 309 F.3d at 599; see also United States v.
  4
    Section 1326(a) provides in pertinent part that “any alien who— (1)
has been denied admission, excluded, deported, or removed or has
departed the United States while an order of exclusion, deportation, or
removal is outstanding, and thereafter (2) enters, attempts to enter, or is
at any time found in, the United States, . . . shall be fined under Title 18,
or imprisoned not more than 2 years, or both.”
7160            UNITED STATES v. BELLO-BAHENA
Pacheco-Medina, 212 F.3d 1162, 1163 (9th Cir. 2000)
(reversing a “found in” conviction of an alien who was
detected on a surveillance video camera as he crossed the bor-
der and except for a split second never left the agent’s sight
before his arrest).

   [3] On the other hand, where an individual evades the gov-
ernment’s detection, even for a brief time, we have held that
he has legally entered the country free of official restraint and
may be convicted of a “found in” offense. See United States
v. Ramos-Godinez, 273 F.3d 820, 824-25 (9th Cir. 2001)
(affirming a “found in” conviction where law enforcement
observed the defendant cross the border but lost sight of him
for two significant periods of time before his apprehension);
United States v. Hernandez-Herrera, 273 F.3d 1213, 1219
(9th Cir. 2001) (holding that an alien who was being pursued
by law enforcement and escaped into thick brush out of sight
of law enforcement for a period before his arrest was free
from official restraint).

   Bello-Bahena asserts that a rational jury could not have
found beyond a reasonable doubt that he was free from offi-
cial restraint in the form of constant governmental observa-
tion. He notes that it is undisputed that he was under
continuous surveillance from the time Agent Drake contacted
Agent Rodriguez until his arrest. Further, no evidence showed
a lack of surveillance from the time Bello-Bahena crossed the
border. Rodriguez testified that he had “no idea” when Drake
first detected Bello-Bahena, and Drake himself did not testify.
Bello-Bahena suggests that the most reasonable inference is
that Drake’s scope was pointed at the border, and that Drake
alerted Rodriguez when the group was near Rodriguez, not
when Drake first saw them. Without hearing testimony
regarding whether Drake observed Bello-Bahena from the
moment he crossed the border, Bello-Bahena argues, the jury
had no basis from which to conclude that Bello-Bahena was
not under constant surveillance the entire time he was in the
country.
                UNITED STATES v. BELLO-BAHENA                7161
   Relying on our decision in Castellanos-Garcia, the govern-
ment argues that the evidence supports an inference that
Bello-Bahena was free from official restraint up until the
point when Drake notified Rodriguez of Bello-Bahena’s pres-
ence. In Castellanos-Garcia, we rejected a defendant’s claim
that the government failed to prove that he was free from offi-
cial restraint. 270 F.3d at 776. There, the arresting agent testi-
fied that he simply came upon the defendant at some point
after he crossed the border, without relying on a sensor device
or another agent to locate him. Id. at 778. We held that in the
absence of contrary evidence, such testimony sufficed to
allow a rational jury to conclude that the defendant was free
from official restraint prior to his arrest. Id.

   [4] Viewing the evidence in the light most favorable to the
government, we conclude that here, as in Castellanos-Garcia,
a rational jury could have found beyond a reasonable doubt
that Bello-Bahena was free from official restraint for at least
some time before his apprehension. Agent Rodriguez testified
that around 3:00 a.m., Agent Drake alerted him that “he had
a group of seven individuals trekking north right around the
Ponds area.” According to Rodriguez, Hagen’s Pond was
about one mile north of the border. At the time Rodriguez
received the call from Drake, Rodriguez was assigned to “line
watch duties,” less than a quarter mile north of the border.
Rodriguez testified that he drove to Bello-Bahena’s location,
guided by Drake, who kept Bello-Bahena under continuous
observation until his arrest. A reasonable jury could conclude
on the basis of this testimony that Drake first detected Bello-
Bahena at some point after he crossed the border. Thus, the
district court did not err in denying Bello-Bahena’s motion for
judgment of acquittal.

                               III.

   [5] Bello-Bahena next argues that the district court should
have given his proposed jury instruction regarding his theory
that he was under official restraint from the moment he
7162            UNITED STATES v. BELLO-BAHENA
crossed the border. “A defendant is entitled to have the judge
instruct the jury on his theory of defense, provided that it is
supported by law and has some foundation in the evidence.”
United States v. Fejes, 232 F.3d 696, 702 (9th Cir. 2000).
Where the parties dispute whether the evidence supports a
proposed instruction, we review a district court’s rejection of
the instruction for an abuse of discretion. Id. “If the defen-
dant’s theory of defense is supported by the evidence, we
review de novo whether the district court’s instructions ade-
quately cover it.” Id.

   Here, Bello-Bahena requested an instruction explaining that
the government had to prove that he was free from official
restraint and defining official restraint to include constant sur-
veillance. The proposed jury instruction read as follows:

    An alien who is under official restraint, although
    physically present on United States soil, has not
    entered the United States in the legal sense. Thus, if
    Mr. Bello-Bahena was continuously under “official
    restraint” from the time that he crossed the border
    until he was apprehended, he has not entered the
    United States within the meaning of the statute under
    which he is charged in the indictment.

    “Official restraint” means that Mr. Bello-Bahena
    was effectively deprived of his liberty and prevented
    from going at large within the United States.

    In order for an alien to be deemed not to have yet
    entered the United States under this rule of law, the
    alien must be under the official restraint at all times
    during and subsequent to his physical entry onto
    United States soil. Constant observation and surveil-
    lance of the alien by one or more agents who is or
    are reasonably able to apprehend him after he has
    crossed the border constitutes official restraint. The
    constant surveillance must be of such a degree that
                UNITED STATES v. BELLO-BAHENA                 7163
    it would prevent the alien from escaping into the
    general population of the United States.

    It is for you as the finders of fact to determine
    whether the Government has proved beyond a rea-
    sonable doubt that Mr. Bello-Bahena was not contin-
    uously under “official restraint” from the time that
    he crossed the international border until his appre-
    hension. In making this determination, you should
    consider whether Mr. Bello-Bahena was under cons-
    tant surveillance by authorities and whether that sur-
    veillance was continuous. An alien need not know he
    is under surveillance to be under official restraint or
    have intended to evade inspection.

    If Mr. Bello-Bahena was not under constant surveil-
    lance, in determining whether he was under “official
    restraint,” other factors you should consider include
    the distance the authorities were from Mr. Bello-
    Bahena, the amount of time he may have been physi-
    cally present within the United States prior to appre-
    hension, the distance he may have traveled into the
    United States, and the characteristics of the area in
    which he may have crossed the border.

   Bello-Bahena and the government disputed whether the
evidence supported the proffered instruction. Bello-Bahena
argued that the instruction was warranted because Rodriguez
testified that the defendant was under constant surveillance
from the time Drake called Rodriguez. The government
objected that “there was no testimony that anyone saw him
enter into the United States.” After hearing the parties’ argu-
ments, the district court rejected the instruction on the basis
of an erroneous legal conclusion. The district court asked, “[Is
it] the Government’s position that surveillance is not tanta-
mount to deprivation of liberty?” The government replied that
it was, and the court agreed and rejected the proposed instruc-
tion.
7164            UNITED STATES v. BELLO-BAHENA
   The district court’s conclusion “that surveillance is not tan-
tamount to deprivation of liberty” is contrary to the well
established rule in our circuit “that a person does not commit
an unlawful entry into the United States if he or she was
‘under constant observation by governmental authorities’
from the time of physical entry until the time of arrest.” Vela-
Robles, 397 F.3d at 788 (quoting Castellanos-Garcia, 270
F.3d at 775). Nonetheless, regardless of the district court’s
misunderstanding of the law, whether Bello-Bahena was enti-
tled to have the judge instruct the jury on his theory of
defense depends on whether that theory had “some foundation
in the evidence,” a factual issue that is reviewed for an abuse
of discretion. See Fejes, 232 F.3d at 702.

   Bello-Bahena argues that his proffered instruction is sup-
ported by Agent Rodriguez’s testimony that Bello-Bahena
was under constant surveillance preceding his arrest. At trial,
the prosecutor asked Rodriguez, “To your knowledge, was the
Defendant under constant surveillance by the other agent
[Drake] on March 6, 2003?” Rodriguez responded, “Yes. I
believe so.” On cross-examination, defense counsel asked
Rodriguez, “You testified that the scope operator I believe
indicated to you that he kept him under constant surveillance
until you arrived at the location?” Rodriguez responded, “Yes,
m’am.” Rodriguez clarified that Drake did not tell Rodriguez
whether he had observed Bello-Bahena cross the border, and
that Rodriguez had “no idea” when Drake first detected Bello-
Bahena.

   The government contends that this evidence did not suffice
to warrant Bello-Bahena’s proposed instruction because no
evidence showed that the observation was continuous from
the time of entry. It argues that the circumstances here are
analogous to those in Castellanos-Garcia, where we affirmed
the denial of the defendant’s proposed jury instruction regard-
ing official restraint. Castellanos-Garcia is far different from
this case, however. In Castellanos-Garcia, we emphasized
that “there was not a scintilla of evidence” to support the
                UNITED STATES v. BELLO-BAHENA                7165
defendant’s theory that he was under constant surveillance.
270 F.3d at 776. Rather, the evidence suggested that the
defendant was not under any form of surveillance prior to his
apprehension: the arresting agent testified that he merely
came upon the defendant without the aid of a sensor device
or other agent. Id. In such circumstances, we held that the
defendant was not entitled to an official restraint instruction
because “there was no evidence to support that theory.” Id. at
777.

   [6] Here, in contrast, Bello-Bahena’s claim of constant sur-
veillance has a basis in the evidence, consisting of the arrest-
ing agent’s testimony that another agent was continuously
monitoring Bello-Bahena, and that Rodriguez relied on that
surveillance to find Bello-Bahena. Although there was an
absence of evidence regarding whether the surveillance began
when Bello-Bahena crossed the border, the evidence permits
such a rational inference to be drawn. Thus, Rodriguez’s testi-
mony provides a sufficient basis to warrant an official
restraint instruction.

   Our recent decision in Vela-Robles does not aid the govern-
ment’s position. In that case, we reaffirmed the principle set
forth in Castellanos-Garcia that where a defendant presents
no evidence that he was under constant governmental obser-
vation, a district court is not required to give an instruction on
the defendant’s official restraint theory. Vela-Robles, 397
F.3d at 789. The defendant in Vela-Robles argued that he was
under constant surveillance because he triggered a seismic
sensor as he crossed the border. We rejected that argument,
holding that “[d]etection by a seismic sensor does not amount
to observation or surveillance for the purpose of showing offi-
cial restraint,” but rather “an alien must be ‘in the visual or
physical grasp of the authorities at all times’ to show that he
or she is under official restraint.” Id. (quoting Pacheco-
Medina, 212 F.3d at 1165). Because Vela-Robles presented
no evidence that he was under constant observation, we held
7166              UNITED STATES v. BELLO-BAHENA
that Vela-Robles was not entitled to an official restraint
instruction. Id.

   Unlike the defendants in Vela-Robles and Castellanos-
Garcia, Bello-Bahena has pointed to affirmative evidence that
he was under continuous visual observation by a border agent
for a period of time before his arrest. Where, as here, there is
at least “some foundation in the evidence” to support a defen-
dant’s theory of defense, a district court is required to give an
instruction on that theory. See Fejes, 232 F.3d at 702; see also
United States v. Washington, 819 F.2d 221, 225 (9th Cir.
1987) (“[A] defendant is entitled to an instruction concerning
his theory of the case if the theory is legally sound and evi-
dence in the case makes it applicable, even if that evidence is
weak, insufficient, inconsistent, or of doubtful credibility.”).
Because, bearing in mind that the burden of proof was on the
government, Agent Rodriguez’s testimony supports Bello-
Bahena’s defense theory, the district court abused its discre-
tion in failing to give an official restraint instruction.5

   Moreover, the instruction actually given to the jury did not
adequately cover Bello-Bahena’s defense theory. The court
instructed the jury that there were three elements to the crime
of being a deported alien found in the United States: “First,
the defendant is an alien; second, the defendant was deported
from the United States; and third, the defendant voluntarily
reentered the United States without the consent of the Attor-
ney General of the United States or his designated successor
or the Department of Homeland Security.” The instruction
made no mention of official restraint or constant surveillance
or of the burden of proof on that issue. Because the evidence
warranted an instruction regarding official restraint, and
because the instruction given wholly failed to cover this the-
  5
    Because we find that Agent Rodriguez’s testimony supported an offi-
cial restraint instruction, we need not address Bello-Bahena’s additional
argument that evidence of the circumstances surrounding his arrest, apart
from constant surveillance, warranted his proposed instruction.
                    UNITED STATES v. BELLO-BAHENA                      7167
ory, we reverse the judgment of the district court and remand
for a new trial.6

                                     IV.

   Finally, Bello-Bahena argues that the district court erred by
denying his motion to dismiss the indictment for failure to
allege certain elements of the crime.7 We review the suffi-
ciency of an indictment de novo. United States v. Rodriguez-
Rodriguez, 364 F.3d 1142, 1145 (9th Cir. 2004).
  6
   The government acknowledges that the denial of an instruction regard-
ing a defendant’s theory of defense warrants per se reversal; however, it
asserts that here, any error should be reviewed for harmlessness because
Bello-Bahena did not explicitly state that official restraint was his “theory
of defense,” and his proposed instruction is more appropriately character-
ized as a “gloss on the element” of entry. Under harmless error review, the
government argues, reversal is not warranted because it is clear beyond a
reasonable doubt that a rational jury would have found Bello-Bahena
guilty even with the proffered instruction.
   The government points to no authority for its position that this court’s
application of harmless error review turns on whether a defendant used the
words “theory of defense” in labeling its proffered instruction. Regardless
of whether official restraint is characterized as a theory of defense or a
gloss on the element of entry, it is undisputed that if the government fails
to prove freedom from official restraint, Bello-Bahena cannot be found
guilty of the crime charged. See Vela-Robles, 397 F.3d at 788. Thus,
Bello-Bahena is entitled to an instruction addressing official restraint as
long as it has some foundation in the evidence. See Fejes, 232 F.3d at 702.
   7
     The indictment states:
      On or about March 3, 2003, within the Southern District of Cali-
      fornia, defendant CARMELO BELLO-BAHENA, aka Francisco
      Hernandez-Catalan, an alien, who previously had been excluded,
      deported and removed from the United States to Mexico, was
      found in the United States, without the Attorney General of the
      United States or his designated successor, the Secretary of the
      Department of Homeland Security (Title 6, United States Code,
      Sections 202(3) and (4), and 557), having expressly consented to
      the defendant’s reapplication for admission into the United
      States; in violation of Title 8, United States Code, Section 1326.
7168             UNITED STATES v. BELLO-BAHENA
   [7] Bello-Bahena asserts that the district court should have
dismissed the indictment because it failed to allege (1) volun-
tary entry, (2) inspection and admission by an immigration
officer or actual and intentional evasion of inspection, and (3)
knowledge of presence in the United States. However, each of
these claims is foreclosed by our decision in United States v.
Rivera-Sillas, 376 F.3d 887, 890 (9th Cir. 2004) (“That clause
[§ 1326] does not require the indictment to specifically state
that the defendant alien voluntarily entered the United
States.”); id. at 892 (holding that a “found in” indictment need
not allege all of the elements of entry); id. at 893 (holding that
an indictment under § 1326 need not allege knowledge
because the “general intent of the defendant to reenter the
United States may be inferred from the fact that the defendant
was previously deported and subsequently found in the United
States.”). Thus, we conclude that the district court did not err
in denying Bello-Bahena’s motion to dismiss the indictment.

                                V.

   The district court did not err in denying Bello-Bahena’s
motion for acquittal and his motion to dismiss the indictment.
Given the state of the evidence, however, it should have given
an instruction on official restraint. In appeal No. 04-50013,
the judgment of conviction is, therefore, REVERSED and the
case is REMANDED for a new trial.8




  8
   Having reversed the conviction, in appeal No. 04-50155, we VACATE
the sentence imposed for violation of supervised release and REMAND
for further proceedings consistent with this opinion.
