                                                                              FILED
                             NOT FOR PUBLICATION                               JAN 18 2013

                                                                           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. 11-50424

              Plaintiff - Appellee,                D.C. No. 3:10-cr-05144-BEN-1

  v.
                                                   MEMORANDUM *
ALEJANDRO FELIX HERNANDEZ,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     Roger T. Benitez, District Judge, Presiding

                      Argued and Submitted December 5, 2012
                               Pasadena, California

Before: PREGERSON, PAEZ, and HURWITZ, Circuit Judges.

       Defendant-appellant Alejandro Felix Hernandez (“Hernandez”) appeals his

conviction of attempted reentry after deportation without permission in violation of

8 U.S.C. § 1326. We have jurisdiction under 18 U.S.C. § 1291. Hernandez argues,

inter alia, that the district court improperly conditioned his constitutional right to



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
present a defense on his surrender of his right not to testify. We agree. Because we

conclude that the district court’s ruling requiring Hernandez to testify in order to

present any evidence regarding his mistake of fact defense was plain error, we

vacate Hernandez’s conviction and remand to the district court for a new trial.

       Hernandez’s only defense at trial was that he made a mistake of fact as to

whether he had permission to reenter the United States. In support of this defense,

Hernandez sought to introduce an unexpired permanent residence card issued in his

name, which he claimed he recently discovered before reentering and thought was

newly issued. He also sought to introduce corroborating testimony of his wife and

son regarding the discovery of the permanent residence card and Hernandez’s

belief that it granted him permission to reenter the country.

      Attempted reentry in violation of 8 U.S.C. § 1326 is a specific intent crime.

United States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192 (9th Cir. 2000).

Hernandez had the right to introduce evidence that would cast doubt on one of the

elements of the crime, specific intent to enter without permission, for which the

government bore the burden of proof beyond a reasonable doubt. See United States

v. Sandoval-Gonzalez, 642 F.3d 717, 722-23 (9th Cir. 2011). Because Hernandez

bore no burden of producing evidence that negated an element of the crime,

Hernandez’s testimony was not necessary to meet any threshold requirement for


                                     Page 2 of 4
presenting his defense. Compare Menendez v. Terhune, 422 F.3d 1012, 1032 (9th

Cir. 2005) (holding that the defendant was required to testify to provide an

adequate foundation for the introduction of corroborating evidence of imperfect

self-defense, a defense for which the defendant bears the burden of production)

with United States v. Rahm, 993 F.2d 1405, 1414 (9th Cir. 1993) (“By choosing

not to testify, [defendant] did not forfeit her right to present a defense or to

introduce testimony. . . . The government was required to prove each element of

the crimes charged beyond a reasonable doubt. Defense testimony calling into

question the proof of any such element is proper.”).

      Despite the foregoing, the district court conditioned Hernandez’s right to

present any evidence of his mistake of fact on the requirement that he testify in his

own defense. In other words, the district court conditioned Hernandez’s

constitutional right to present a defense, Crane v. Kentucky, 476 U.S. 683, 687

(1986), on his forfeiting his constitutional right not to testify, U.S. Const. amend. V.

See Simmons v. United States, 390 U.S. 377, 394 (1986) (“[W]e find it intolerable

that one constitutional right should have to be surrendered in order to assert

another.”). At oral argument, the government acknowledged that if Hernandez had

the right to introduce this evidence, then the district court judge’s ruling was plain




                                      Page 3 of 4
error.1 Given that concession, and our conclusion that Hernandez was entitled to

introduce the evidence, we vacate Hernandez’s conviction and remand to the district

court for a new trial. Because we conclude that Hernandez’s conviction must be

vacated on this ground, we need not address the other claims raised by Hernandez

in his appeal.

      VACATED and REMANDED.




       1
        There is some question whether Hernandez properly objected to the district
court’s ruling. If he did not, the plain error rule applies. United States v.
Ayala-Nicanor, 659 F.3d 744, 746-47 (9th Cir. 2011). We need not resolve this
issue since the government’s counsel agreed that, if Hernandez had the right to
present the testimony, the error was plain.

                                    Page 4 of 4
