                   FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,              No. 15-50273
           Plaintiff-Appellee,
                                         D.C. No.
              v.                   3:14-cr-03299-LAB-1

JESUS CASTILLO-MENDEZ,
         Defendant-Appellant.              OPINION


      Appeal from the United States District Court
        for the Southern District of California
       Larry A. Burns, District Judge, Presiding

       Argued and Submitted December 7, 2016
                Pasadena, California

                   Filed August 21, 2017

   Before: Stephen Reinhardt, A. Wallace Tashima,
         and Richard A. Paez, Circuit Judges.

                   Opinion by Judge Paez
2            UNITED STATES V. CASTILLO-MENDEZ

                            SUMMARY*


                           Criminal Law

    The panel reversed a conviction for attempted illegal
reentry and remanded for a new trial.

    The panel held that the district court’s supplemental
instruction in response to the jury’s request for clarification
with respect to the meaning of specific intent to enter free
from official restraint was erroneous. The panel held that the
supplemental instruction, drawing from “found in” cases:
(1) erroneously focused on whether the defendant was, in
fact, under official restraint, which is irrelevant to the crime
of attempted illegal reentry; and (2) erroneously stated that
the defendant “need not be aware” of official restraint,
confusingly and inaccurately suggesting that his mental state
was irrelevant.

    The panel concluded that the confusing and legally
inaccurate supplemental instruction failed to remove the
jury’s confusion about this important issue, and that it is
therefore not clear beyond a reasonable doubt that a rational
jury would have convicted the defendant on this record.




    *
      This summary constitutes no part of the opinion of the court. It has
been prepared by court staff for the convenience of the reader.
              UNITED STATES V. CASTILLO-MENDEZ                  3

                             COUNSEL

Kurt D. Hermansen (argued), Law Office of Kurt David
Hermansen, San Diego, California, for Defendant-Appellant.

D. Benjamin Holley (argued), Assistant United States
Attorney; Helen H. Hong, Chief, Appellate Section, Criminal
Division; United States Attorney’s Office, San Diego,
California; for Plaintiff-Appellee.


                              OPINION

PAEZ, Circuit Judge:

    Jesus Castillo-Mendez appeals his conviction for
attempted illegal reentry, a violation of 8 U.S.C. § 1326(a),
(b). One of the elements of attempted illegal reentry is that
the defendant specifically intend to reenter the United States
free from official restraint. At trial, Castillo-Mendez argued
that the government failed to prove that he attempted to enter
the country with the requisite intent. To the contrary, he
argued that when he crossed over the border he did so with
the intent to escape smugglers he believed would harm him.
During deliberation, the jury, apparently confused with
respect to the meaning of specific intent to enter free from
official restraint, asked the district court for clarification. In
response, the district court provided the jury with a
supplemental instruction, which Castillo-Mendez argues was
erroneous and prejudicial. We agree. We therefore reverse
and remand for a new trial.1


    1
        We have jurisdiction under 28 U.S.C. § 1291.
4          UNITED STATES V. CASTILLO-MENDEZ

                               I.

    In September 2014, Castillo-Mendez planned to cross the
border with two other men, his cousin Nestor Castillo-
Ramirez, and a man known only as Teodulo. Teodulo had
arranged for smugglers to facilitate the group’s entry into the
United States.

    Prior to their journey across the border, the smugglers
housed the three men in a dirty, abandoned building near the
border for approximately two days. The building was full of
trash, fenced with barbed wire, and lacked a bathroom,
electricity, and running water. The group had limited or no
food during this time. Nonetheless, Castillo-Mendez and his
companions did not believe they could leave the house or
abandon their plan for fear of reprisal by the smugglers.
Eventually, approximately seven smugglers picked up
Castillo-Mendez, Castillo-Ramirez, and Teodulo from the
house and took them to the border, all ten men in one pick up
truck.

    Around six pm, three of the seven smugglers walked the
group from the truck up to the border fence, instructing the
men that they would watch them cross over from atop a
nearby hill. In preparing to cross, the three men noticed a
border patrol truck on the other side of the fence, and possibly
also a plane flying overhead. The group told the smugglers
that they did not want to cross, but the smugglers responded
with threatening, aggressive, and frightening comments and
told them they had no choice but to cross right then. The
group believed that the smugglers might have weapons and
feared for their safety. Ultimately, the three men jumped
over the fence; Castillo-Ramirez twisted his ankle and
Teodulo injured his hand in the process.
             UNITED STATES V. CASTILLO-MENDEZ                           5

    Within ten minutes, a border patrol officer encountered
and arrested the group. Castillo-Mendez was ultimately
charged with attempted illegal reentry under 8 U.S.C.
§ 1326(a), (b).

    At trial, the government sought to prove that Castillo-
Mendez specifically intended to enter free from official
restraint. As part of the government’s affirmative case, Jason
LeClaire, a United States Customs and Border Patrol agent,
testified that around the time Castillo-Mendez, Castillo-
Ramirez, and Teodulo jumped the fence, he noticed a sensor
go off suggesting that someone had crossed the border. He
further explained that about ten minutes later, he saw a group
of three men move from behind a rock pile and head north.
He explained that he did not see the men for approximately
ten minutes after the sensor alerted. LeClaire alerted another
border patrol agent, Kalina Massie, who drove to the location
and confronted the men. Massie provided additional
testimony, explaining that the men “appeared to be hiding,”
although she could not recall in what position. Massie
testified that when she walked up to the men, Castillo-
Mendez stood, raised his hands, and said “you got us.”
Massie concluded by stating that Castillo-Mendez made no
attempt to run or resist arrest and was cooperative in
answering her questions.

    Castillo-Mendez sought to rebut the government’s
showing that he specifically intended to enter free from
official restraint by showing that he actually intended to flee
from the smugglers and enter border patrol custody.2 To that



    2
      Castillo-Mendez’s counsel also requested an instruction on the
defense of necessity, which the district court included in its charge. The
6            UNITED STATES V. CASTILLO-MENDEZ

end, Castillo-Mendez and Castillo-Ramirez testified as to
their state of mind at the time they crossed the border.
Castillo-Mendez explained that when he jumped the border
fence, he intended to “free [him]self from the coyotes” and
knew that he would be caught by border patrol agents. He
further testified that he intended to surrender to the border
patrol agents upon entering the United States. Castillo-
Ramirez provided similar testimony, explaining that he
believed the smugglers would beat them up or kill them if
they did not cross over the border, and that he “felt safer with
the immigration officers.” Castillo-Ramirez added that he
knew they would ultimately be caught by border agents.

    Castillo-Mendez also testified that the men walked
northward after crossing, instead of immediately turning
themselves in, because the smugglers were observing them
and they feared for their safety. Similarly, Castillo-Ramirez
testified that the men did not immediately turn themselves in
because they feared the smugglers had weapons pointed at
them. Castillo-Mendez testified that when the border patrol
agents caught him, he “felt [he]’d been saved.” According to
Castillo-Mendez, when border patrol encountered them, the
men sat on the ground to show that they “were giving up.”
According to Castillo-Ramirez, the men wanted to surrender
but were seated because of his injured ankle. He explained
that the men were resting on the ground because they were
“tired,[] couldn’t walk anymore, [his] ankle was injured, and
[they] knew that the Border Patrol was going to get to where
[they] were at.”




necessity defense dovetailed with his theory of the case, that he entered
intending to escape dangerous smugglers.
             UNITED STATES V. CASTILLO-MENDEZ                              7

     After the defense rested, the district court instructed the
jury on the elements of attempted illegal reentry, including,
critically, that “[t]he government has to prove that the
defendant had the specific intent to enter the United States
free of official restraint.”3 After beginning deliberations, the
jury submitted two questions to the court: (1) “What does
official restraint mean?” and (2) “Does intent to enter start
between T.J. [Tijuana] or on the day of the crime? The
fence?”

   After discussing the first question with the government
and defense counsel, the district court instructed the jury that

         For an alien to be under official restraint, that
         alien must be under continuous governmental
         observation or surveillance from the moment

    3
       The district court instructed the jury that attempted illegal reentry
had six elements: (1) “[T]he defendant had been removed from the United
States.” (2) “[T]he defendant had the conscious desire to reenter the
United States without consent.” (3) “[T]he defendant was an alien.”
(4) The defendant “did not have consent . . . to come back into the United
States.” (5) “[T]he defendant did something that was a substantial step
toward committing the crime of attempted illegal reentry.” (6) “[T]he
defendant had the specific intent to enter the United States free from
official restraint.” The court derived the first five elements from the Ninth
Circuit Committee on Model Criminal Jury Instructions, Manual of Model
Criminal Jury Instruction for the District Courts of the Ninth Circuit, 9.7
(2010), and the sixth element from United States v. Lombera-Valdovinos,
429 F.3d 927, 928 (9th Cir. 2005). The Ninth Circuit Committee on
Model Criminal Jury Instructions has since amended the model jury
instructions to include six elements, much in line with the district court’s
instructions here. However, it would be more precise to instruct that
attempted illegal reentry has five elements because we have interpreted
the second element, “conscious desire to reenter,” to mean “specific intent
to enter free from official restraint.” See id.; United States v. Vazquez-
Hernandez, 849 F.3d 1219, 1225 (9th Cir. 2017).
8              UNITED STATES V. CASTILLO-MENDEZ

           he attempts to make entry into the United
           States until the moment he’s apprehended. In
           other words, the person must be under official
           observation or surveillance at all times during
           and after he attempts to make physical entry
           into the United States. Such surveillance can
           take the form of physical observation by a
           government official or any kind of electronic
           surveillance. Additionally, the alien must
           lack the freedom to go at large and mix with
           the population. But the alien need not be
           aware that he’s under surveillance. Any alien
           who is under this kind of sustained
           surveillance has not entered . . . the United
           States freely of official restraint.

Castillo-Mendez does not challenge the supplemental
instruction the district court gave in response to the second
question and accordingly we do not address it.4

    After the court gave these supplemental instructions, each
side was allotted five minutes to make additional arguments.

    4
        As to the jury’s second question, the district court instructed:

           [Y]ou should consider all of the evidence bearing on
           the defendant’s intentions, whether arising before,
           during, or after the moment of the attempted physical
           entry. . . . However, you may not find that the
           defendant intended to enter the United States free of
           official restraint unless . . . the defendant had the
           required intent to enter the U.S. at the moment he
           attempted to make entry.          [T]here must be a
           concurrence of the actions that amount to the
           substantial step or the attempt and the frame of mind of
           I want to get in without being apprehended.
           UNITED STATES V. CASTILLO-MENDEZ                    9

The jury was then excused, and the district judge
acknowledged that the supplemental instruction on official
restraint “kind of missed the mark.” Defense counsel
requested that the district court withdraw the official restraint
instruction, but the court responded, “not a chance.”

   The jury returned a guilty verdict.        Castillo-Mendez
timely appealed.

                               II.

    We review de novo whether the district court’s response
to a jury question correctly states the law. United States v.
Verduzco, 373 F.3d 1022, 1030 n.3 (9th Cir. 2004). When a
jury demonstrates confusion about a controlling legal
principle, we also review whether the district court
“eliminated that confusion.” United States v. Walker,
575 F.2d 209, 213–14 (9th Cir. 1978); see also Bollenbach v.
United States, 326 U.S. 607, 612–13 (1946) (instructing
district courts to “clear . . . away with concrete accuracy” any
jury confusion when the jury asks questions); Verduzco,
373 F.3d at 1031 (requiring district courts to answer jury
questions “with particular care and acumen.”).

    Even if we determine an instruction was erroneous or
failed to clear up confusion, we must still review whether the
error was harmless. A jury instruction that erroneously
describes an element of the offense “is harmless only if it is
clear beyond a reasonable doubt that a rational jury would
have found the defendant guilty absent the error.” United
States v. Liu, 731 F.3d 982, 992 (9th Cir. 2013) (citation and
internal quotation marks omitted).
10         UNITED STATES V. CASTILLO-MENDEZ

                             III.

                              A.

                              1.

    At the outset, we briefly review the development of our
attempted illegal reentry law. Section 1326(a) makes it a
crime to “enter[], attempt[] to enter or . . . at any time [be]
found in, the United States” after a previous removal.
8 U.S.C. § 1326(a). We have held that accordingly, the
statute consists of three distinct offenses: completed illegal
reentry, attempted illegal reentry, and “found in,” illegal
reentry. United States v. Pacheco-Medina, 212 F.3d 1162,
1165 (9th Cir. 2000). Our early illegal reentry case law held
that all three types of illegal reentry were general intent
malum prohibitum regulatory offenses, wherein the
government did not have to prove that the defendant acted
under any particular mens rea. See Pena-Cabanillas v.
United States, 394 F.2d 785, 788–90 (9th Cir. 1968). Thirty
years later in Gracidas-Ulibarry, we recognized that the
statute used the word “attempt,” which at common law
required the government to show specific intent. United
States v. Gracidas-Ulibarry, 231 F.3d 1188, 1192–95 (9th
Cir. 2000) (en banc). We thus made clear that while “found
in” and completed illegal reentry are general intent crimes
which require no mens rea, attempted illegal reentry is a
specific intent crime which requires the government to show
the mens rea that the defendant specifically intended to
reenter. Id. at 1195.

    The separate offenses continued to develop on separate
tracks in our case law, and today, each separate offense has
a unique set of elements. Vazquez-Hernandez, 849 F.3d at
           UNITED STATES V. CASTILLO-MENDEZ                  11

1226 (“[T]he elements that the government is required to
prove in ‘found in’ cases are not directly parallel to those
required to prove attempted illegal reentry[.]”).

     We first outlined the elements of attempted illegal reentry
in Gracidas-Ulibarry. We explained that “(1) the defendant
had the purpose, i.e., conscious desire, to reenter the United
States without the express consent of the Attorney General;
(2) the defendant committed an overt act that was a
substantial step towards reentering without that consent;
(3) the defendant was not a citizen of the United States; (4)
the defendant had previously been lawfully denied admission,
excluded, deported or removed from the United States; and
(5) the Attorney General had not consented to the defendant’s
attempted reentry.” Id. at 1196. We held that the first
element, conscious desire to reenter, meant that the defendant
had the specific intent to reenter. Id. Five years later in
Lombera-Valdovinos, we specified more precisely that
conscious desire to reenter meant specific intent to reenter
free from official restraint. 429 F.3d at 928. In doing so, we
explained that specific intent to enter free from official
restraint meant intent to go “at large within the United States”
and “mix with the population.” Id. at 929 (quoting United
States v. Hernandez-Herrera, 273 F.3d 1213, 1218 (9th Cir.
2001)).

    We then recognized that a defendant charged with
attempted illegal reentry can undermine the government’s
efforts to show specific intent to enter free from official
restraint by showing that he entered with the intent to be
taken into custody. In Lombera-Valdovinos, for example, we
held that a defendant who entered intending to be taken into
jail did not enter with the specific intent to be free from
official restraint because he made “no effort to evade official
12         UNITED STATES V. CASTILLO-MENDEZ

restraint” and instead “sought such restraint.” Id. at 930
(emphasis in original); see also United States v. Argueta-
Rosales, 819 F.3d 1149, 1156–57 (9th Cir. 2016) (holding
that a defendant who believed he was chased by an armed
gunman entered the United States to seek border patrol
custody and lacked intent to enter free from official restraint).

    We recently described another way that a defendant
charged with attempted illegal reentry can undermine the
government’s showing that he specifically intended to enter
free from official restraint: by showing that he entered
knowing he was under official restraint. In Vazquez-
Hernandez, the defendant washed car windows each day in
the border crossing pre-inspection area, technically on the
United States side of the border. 849 F.3d at 1223, 1227.
The defendant argued that he did not intend to enter free from
official restraint because he knew he was under constant
government surveillance from his daily experience in the
area. Id. We held that a defendant who knew he was under
constant government surveillance did not enter with the intent
to be free from official restraint. Id. at 1227. In other words,
another way to show a lack of specific intent to go at large in
the United States is through a lack of intent to evade or be
free from constant government surveillance. Id. (describing
the standard as “intent to evade official surveillance”); see
also Lombera-Valdovinos, 429 F.3d at 930 (suggesting,
without clearly holding, that knowledge of constant
surveillance is one way to show a lack of intent to go at
large).

                               2.

   Here, Castillo-Mendez’s defense relied on our cases
holding that a defendant who intended to enter border patrol
             UNITED STATES V. CASTILLO-MENDEZ                           13

custody did not specifically intend to enter free from official
restraint. Argueta-Rosales, 819 F.3d at 1156–57; Lombera-
Valdovinos, 429 F.3d at 928. The central issue at trial was
whether Castillo-Mendez crossed the border intending to flee
from his smugglers and be taken into custody, or rather did so
with the specific intent to enter without apprehension and
roam freely in the United States.

    As previously noted, the jury seemed to struggle with this
very question. Initially, the district court had instructed the
jury that “specific intent to enter the United States free of
official restraint” was an element of the crime. The jury
asked what official restraint meant in reference to Castillo-
Mendez’s requisite intent,5 and when intent is formed. The
jury’s questions reveal that they were confused regarding the
district court’s instruction on specific intent to enter free from
official restraint, which was central to Castillo-Mendez’s
defense. Walker, 575 F.2d at 213 (“On appeal, we may infer
from questions asked by the jury that it was confused about
a controlling legal principle.”).

    Instead of clearing up the jury’s confusion regarding
specific intent to be free from official restraint, the district
court provided the jury with a misleading supplemental
instruction. The district court instructed “For an alien to be
under official restraint, that alien must be under continuous
governmental observation or surveillance . . . . But the alien
need not be aware that he’s under surveillance.” The district
court drew this supplemental instruction from our “found in”
case law. Castillo-Mendez’s counsel objected to the


    5
      The sole place that “official restraint” arose in the district court’s
charge was in reference to the requisite mens rea, or the specific intent to
enter free from official restraint.
14           UNITED STATES V. CASTILLO-MENDEZ

supplemental instruction precisely because it derived from
“found in,” not attempt, cases, but the district court responded
“I really don’t understand why you contend there would be a
distinction between whether it’s a found-in or an attempted
case.”6 There are, however, as discussed supra, significant
differences between the separate offenses of “found in” and
attempted illegal reentry. By relying on “found in” rather
than attempted illegal reentry cases, the district court
committed two major errors in its supplemental instruction.

    First, the district court’s instruction erroneously focused
on whether Castillo-Mendez was, in fact, under official
restraint when he entered. The district court began its
supplemental instruction with “For an alien to be under
official restraint . . . ,” and each subsequent sentence
addressed when a defendant is under official restraint.7
Whether a defendant was actually under official restraint at
the time he entered, however, is irrelevant to the crime of


     6
       We are sympathetic to the district court’s error as our Model
Criminal Jury Instructions are far from a model of clarity on this point.
Although the jury instructions recognize the three distinct offenses in the
separate instructions for completed (9.6), attempted (9.7), and“found
in”(9.8) illegal reentry, the various commentary are less than clear in
adhering to these distinctions. Ninth Circuit Committee on Model
Criminal Jury Instructions, Manual of Model Criminal Jury Instruction for
the District Courts of the Ninth Circuit, 9.6–9.8 (2010, rev’d 2017). For
example, the commentary for completed illegal reentry, a crime which
has no mens rea element, suggests that the mens rea is specific intent, and
cites to attempted illegal reentry cases. See id. at 9.6; see also Gracidas-
Ulibarry, 231 F.3d at 1195.
     7
        Moreover, in the government’s supplemental argument, the
prosecutor suggested that the jury should look to the fact of official
restraint in determining Castillo-Mendez’s intent when he crossed the
border.
           UNITED STATES V. CASTILLO-MENDEZ                    15

attempted illegal reentry. In attempted illegal reentry cases,
official restraint functions only as a way of elucidating the
defendant’s requisite mens rea of specific intent to enter free
from official restraint. The only element of attempted illegal
reentry which makes reference to official restraint is the mens
rea element of “specific intent to reenter ‘free from official
restraint.’” See Lombera-Valdovinos, 429 F.3d at 929. What
matters therefore in attempted illegal reentry cases is the
defendant’s state of mind–regardless of whether he was, as a
matter of fact, under official restraint. In “found in” cases, on
the other hand, the government must prove that at the time a
defendant entered, he was free from official restraint as a
matter of fact, irrespective of his knowledge or intent to avoid
that restraint. United States v. Bello-Bahena, 411 F.3d 1083,
1087 (9th Cir. 2005); see also United States v. Leos-
Maldonado, 302 F.3d 1061, 1063–64 (9th Cir. 2002)
(distinguishing between fact of official restraint and intent,
and holding that the former is not required for attempted
illegal reentry but the latter is).

    The supplemental instruction should have instead focused
on Castillo-Mendez’s specific intent to enter without being
apprehended–without making reference to the factual matter
of whether he was under official restraint when he attempted
to enter. For example, the court could have reminded the jury
of its original charge, that the jury must find that the
defendant specifically intended to enter free from official
restraint, and, as used in that context, official restraint means
being detected, apprehended, and prevented from going at
large within the United States, or mixing with the population.
Lombera-Valdovinos, 429 F.3d at 929–30.

    Second, and as a result of the first error, the district court
erroneously instructed the jury that the defendant “need not
16         UNITED STATES V. CASTILLO-MENDEZ

be aware that he’s under surveillance” or official restraint.
Because “found in” is a general intent crime, see Gracidas-
Ulibarry, 231 F.3d at 1195; Matter of Pierre et al., 14 I. & N.
Dec. 467, 469 (BIA 1973), the government can prove the fact
of official restraint in “found in” cases “regardless of whether
the alien was aware of the surveillance or intended to evade
inspection.” United States v. Ruiz-Lopez, 234 F.3d 445, 448
(9th Cir. 2000); see also Pacheco-Medina, 212 F.3d at 1164
(citing Matter of Pierre, 141 I. & N. Dec. at 469) (explaining
that official restraint can be “unbeknownst to the alien”). By
drawing from “found in” cases, the district court’s instruction
told the jury that it did not matter whether Castillo-Mendez
knew or did not know about official restraint, or in effect, that
his mental state was irrelevant.

    This cannot be correct, as the critical inquiry in attempted
illegal reentry cases is the defendant’s mental state–whether
he specifically intended to enter free from official restraint.
Lombera-Valdovinos, 429 F.3d at 929. Unlike “found in”
illegal reentry, attempted illegal reentry is a specific intent
crime, and the government must show specific intent to enter
free from official restraint as an element of the crime. Id. at
928; Gracidas-Ulibarry, 231 F.3d at 1195. Whether a
defendant knew about official restraint may well be relevant
to this inquiry. For example, Castillo-Mendez’s testimony
that he saw a border patrol car and plane before he crossed
bolstered his defense that he entered intending to go into
custody. Likewise, in Vazquez-Hernandez the defendant’s
argument that he knew he was under surveillance at the
border supported his defense that he did not enter intending
to go at large in the United States. 849 F.3d at 1227. By
drawing from “found in” cases, and stating that Castillo-
Mendez “need not be aware” of official restraint, the district
court suggested that his mental state was irrelevant; a result
            UNITED STATES V. CASTILLO-MENDEZ                         17

that is confusing and legally inaccurate. It was error for the
district court to have included this sentence.8

    In sum, instead of clearing up the jury’s confusion and
responding with legal accuracy, the district court drew from
inapposite “found in” illegal reentry cases, which led it to
provide a legally incorrect answer that further confused the
jury. Walker, 575 F.2d at 213 (citing Powell v. United States,
347 F.2d 156, 158 (9th Cir. 1965)) (instructing district courts
not to “confuse or leave an erroneous impression in the minds
of the jurors”). We must decide whether these errors were
prejudicial.

                                   B.

    We reverse and remand for a new trial where a district
court’s supplemental instruction failed to clear away jury
confusion with its answer or when the answer was legally
incorrect, and when such error or confusion was prejudicial
to the defendant. Id. at 214 (reversing even where the court’s
statement was legally correct but “when viewed in light of the
jury’s [] question [wa]s confusing”). An erroneous jury
instruction that describes an element of the offense “is
harmless only if it is clear beyond a reasonable doubt that a


    8
        Castillo-Mendez also argued that the district court erred in
discussing constant surveillance throughout its supplemental instruction.
We agree that given Castillo-Mendez’s theory of the case, that he entered
intending to be taken into custody, it would have been clearer had the
district court focused its supplemental instruction on intent to enter
without being apprehended, rather than repeatedly discussing constant
surveillance. By contrast, in a case like Vazquez-Hernandez where the
defendant’s theory relied principally on his knowledge of constant
surveillance, an instruction focusing on constant surveillance might be
appropriate. 849 F.3d at 1227.
18         UNITED STATES V. CASTILLO-MENDEZ

rational jury would have found the defendant guilty absent
the error.” Liu, 731 F.3d at 992 (internal quotation marks and
citation omitted). Here, the district court’s legally erroneous
and confusing supplemental instruction was prejudicial.

    Specific intent to enter free from official restraint is an
element of attempted illegal reentry and here it was the
central and contested issue at trial. Gracidas-Ulibarry,
231 F.3d at 1190. Nearly all of the testimony and evidence
focused on whether Castillo-Mendez intended to enter “free
from official restraint” or if instead he intended to flee from
dangerous smugglers and surrender to border patrol agents.
There was evidence on both sides. For example, evidence in
support of the former interpretation included the fact that he
arranged to pay the smugglers only if the border crossing was
successful, the border patrol agents’ testimony that the men
were hiding, and Castillo-Mendez’s failure to explain his fear
of the smugglers when apprehended. On the other hand, there
was evidence in support of the latter interpretation, such as
Castillo-Mendez’s and Castillo-Ramirez’s testimony about
their intent to flee from the smugglers, their belief that the
smugglers had weapons, and their reasons for sitting on the
ground. With clear and legally correct instructions, the jury
could have weighed this conflicting evidence, assessed the
credibility of the witnesses, and come to a proper
determination of guilt or innocence.

     This was the central element contested at trial and there
is evidence to support either outcome. As demonstrated by
its questions, the jury was likely confused about this
singularly important issue, and the district court’s confusing
and legally inaccurate supplemental instruction failed to
remove this confusion. Walker, 575 F.2d at 213. As a result,
it is not clear “beyond a reasonable doubt that a rational jury
           UNITED STATES V. CASTILLO-MENDEZ                    19

would have” convicted Castillo-Mendez on this record. Liu,
731 F.3d at 992.

                               IV.

    For the foregoing reasons, we reverse Castillo-Mendez’s
conviction and remand for a new trial. On remand, the
district court should instruct the jury that to convict Castillo-
Mendez of attempted illegal reentry the government must
prove specific intent to enter free from official restraint.
Should the jury again ask for the definition of official
restraint, the district court should remind the jury that official
restraint is relevant only as a part of the defendant’s requisite
mens rea, and answer with a definition drawn from attempted
illegal reentry cases, such as “you must find that the
defendant had the specific intent to enter free from official
restraint, which means intent to enter without being detected,
apprehended, or prevented from going at large within the
United States and mixing with the population.”

    REVERSED AND REMANDED.
