                FOR PUBLICATION

  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT


UNITED STATES OF AMERICA,                No. 13-10500
                Plaintiff-Appellee,
                                           D.C. No.
                v.                       2:11-cr-2268-
                                            NVW-1
JESUS ALVAREZ-ULLOA, AKA Jesse
Ulloa, AKA Jesse Alvarez Ulloa,
              Defendant-Appellant.



UNITED STATES OF AMERICA,                No. 13-10501
                Plaintiff-Appellee,
                                           D.C .No.
                v.                       4:07-cr-1972-
                                            NVW-1
JESUS ALVAREZ-ULLOA, AKA Jesse
A. Ulloa,
             Defendant-Appellant.         OPINION


     Appeals from the United States District Court
              for the District of Arizona
       Neil V. Wake, District Judge, Presiding

               Argued and Submitted
     December 11, 2014—San Francisco California

                 Filed April 21, 2015
2             UNITED STATES V. ALVAREZ-ULLOA

 Before: A. Wallace Tashima and Richard A. Paez, Circuit
    Judges, and Frederic Block, Senior District Judge.*

                    Opinion by Judge Tashima


                           SUMMARY**


                           Criminal Law

    The panel affirmed a conviction for illegal reentry under
8 U.S.C. § 1326(a), and the district court’s order revoking
supervised release based on that conviction, in a case in
which the defendant contended that the district court erred in
rejecting his Batson challenges and that a supplemental jury
instruction impermissibly coerced the jury and constructively
expanded the indictment.

    The panel held that the district court erred in failing to
reach the third step of the Batson framework, where it
dispensed with each challenge by determining that the
government had asserted facially neutral grounds for its
peremptory strikes of three Hispanic individuals in the venire,
without evaluating the persuasiveness of the government’s
facially neutral reason. The panel held, however, that the
defendant failed to show purposeful discrimination and that
the record does not support such a finding on de novo review.


    *
   The Honorable Frederic Block, Senior United States District Judge,
Eastern District of New York, sitting by designation.
  **
     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. ALVAREZ-ULLOA                   3

     The panel held that the district court’s supplemental
instruction – which clarified that the insanity defense would
not apply if, while the defendant was illegally present in the
United States, he was sane for a long enough period to have
left the country – was substantively correct and not coercive.
The panel rejected the defendant’s contention that the
supplemental jury instruction constituted a constructive
amendment of the indictment. The panel wrote that because
it is well-established in this circuit that an indictment under
§ 1326(a) need not specifically denote the duration of a
defendant’s illegal presence, the indictment provided the
defendant with adequate notice that he was being charged
with a course of criminal conduct that began when he
reentered the United States; and that the supplemental jury
instruction was not “distinctly different” from the indictment.


                         COUNSEL

Jon M. Sands, Federal Public Defender, Keith J. Hilzendeger
(argued), Assistant Federal Public Defender, Phoenix,
Arizona, for Defendant-Appellant.

John S. Leonardo, United States Attorney, Mark S.
Kokanovich, Deputy Appellate Chief, and Kiyoko Patterson
(argued), Assistant United States Attorney, Phoenix Arizona,
for Plaintiff-Appellee.
4            UNITED STATES V. ALVAREZ-ULLOA

                             OPINION

TASHIMA, Circuit Judge:

    Jesus Alvarez-Ulloa (“Ulloa”)1 appeals his conviction for
illegal reentry under 8 U.S.C. § 1326(a) and the district
court’s order revoking his supervised release based on the
jury’s guilty verdict in the illegal reentry case. During jury
selection, Ulloa unsuccessfully challenged three of the
government’s peremptory strikes under Batson v. Kentucky,
476 U.S. 79 (1986). At trial, Ulloa asserted the insanity
defense, arguing that as a former boxer he suffered from brain
damage that prevented him from understanding the nature of
his presence in the United States. After the jury deadlocked,
the district court clarified that the insanity defense would not
apply if while Ulloa was illegally present in the United States
he was sane for a long enough period to have left the country.
The jury subsequently returned a guilty verdict.

    On appeal, Ulloa contends, first, that the district court
erred in rejecting his Batson challenges, and, second, that the
supplemental instruction impermissibly coerced the jury and
constructively expanded the indictment. We have jurisdiction
under 28 U.S.C. § 1291. We affirm.

                                  I.

   Over a period of about twelve years, between
approximately 1984 and 1996, Ulloa was first an amateur and


    1
    Our ordinary convention is to refer to litigants with hyphenated
Hispanic surnames by the name appearing first in the hyphenated series.
However, because Alvarez-Ulloa uses the second of his two surnames, we
adopt that nomenclature here.
            UNITED STATES V. ALVAREZ-ULLOA                  5

later a professional boxer. Although Ulloa was raised and
appears to have lived primarily in Arizona, he is a citizen of
Mexico, a designation responsible for many of his recent
legal problems.

    In 2010, Ulloa was removed to Mexico following a
conviction for attempted illegal reentry after deportation, in
violation of 8 U.S.C. §§ 1326(a), (b)(2). Ulloa subsequently
reentered the United States. Local police found and detained
Ulloa in October 2011 at a resort in Phoenix after he
reportedly attempted to steal a copy of the roster of the
Arizona Cardinals.

    After concluding that Ulloa was a citizen of Mexico
subject to a previous deportation order, the government
charged Ulloa with illegal reentry. The indictment charged,
in full:

           On or about October 23, 2011, at or near
       Phoenix, in the District of Arizona, JESUS
       ALVAREZ-ULLOA, an alien, was found in
       the United States of America after having
       been previously denied admission, excluded,
       deported, and removed from the United States
       at or near San Ysidro, California, on or about
       December 17, 2010, and not having obtained
       the express consent of the Attorney General or
       the Secretary of Homeland Security to reapply
       for readmission.

          In violation of Title 8, United States Code,
       Sections 1326(a) and (b)(1).
6           UNITED STATES V. ALVAREZ-ULLOA

    During jury selection, Ulloa raised three Batson
challenges to the government’s peremptory strikes. Ulloa
alleged that the government’s strikes of Panelists 25, 29, and
30 were motivated by impermissible racial discrimination.
According to Ulloa’s counsel, there were five Hispanic
individuals in the venire of thirty-six potential jurors, and the
government used three of its seven peremptory strikes on
Hispanic individuals.

   The district court discussed each of the prospective strikes
with the government and Ulloa’s counsel.

    At the court’s prompting, the government first addressed
the strike of Panelist 25. The government asserted it struck
Panelist 25 because he “was a pre-med major in sports
medicine and [had] experience in that area and [was]
involved in football, karate, and boxing.” Additionally,
Panelist 25 had previously attended a pro-immigration reform
rally with his mother, which, the government suggested,
might indicate potential bias in an immigration-related
prosecution.

   Panelist 29 was struck, according to the government,
because she was a third-year law student and had previously
worked for a criminal defense firm. The government
contended that this background was “indicative of somebody
who would be less trusting of the government in immigration
prosecution.”

    Finally, the government asserted that it struck Panelist 30
because she had a son who had been convicted of armed
robbery, and reported other negative experiences with law
enforcement officers, including having had her house
searched by law enforcement officers while she was not
           UNITED STATES V. ALVAREZ-ULLOA                  7

home. Although Panelist 30 had also noted positive
experiences with police during questioning, the government
stated she was struck because of a potential bias against law
enforcement.

    The court sustained each of the strikes. Working
backwards, the court explained that with respect to Panelist
30:

       [T]he government has articulated a facially
       neutral ground that is actually well supported
       by the witness’s answers that reflected a
       negative experience with law enforcement.
       Now, she also had positive experiences, but it
       was apparent that she had some continuing
       sensitivity and feeling. And so I don’t have
       any difficulty concluding that is a facially
       neutral ground for exercising the strike.

The court next addressed Panelist 29:

       I find that both articulated grounds are facially
       neutral. She’s two years out of law school.
       She’s worked in law offices. . . . I’ve never
       been able to get on a jury my whole life.
       Nobody would let me on because I was a
       lawyer. And I didn’t take it personally. But
       that’s accepted wisdom of not having
       someone on the jury who may be in a position
       to, A, second guess you and, B, carry perhaps
       special influence into the deliberations of the
       jury because of the legal training. And her
       involvement in immigration criminal defense
       certainly suggests a special interest and
8           UNITED STATES V. ALVAREZ-ULLOA

       sensitivity that, for purposes of a peremptory
       challenge, is facially neutral.

The court spent the most time considering the strike of
Panelist 25. At one point, it noted that “it’s the perception of
the prosecutor, not my perception that matters.” The court
eventually concluded:

       I’m satisfied that whether or not the [rally]
       was specifically focused on Sheriff Arpaio or
       just generally focused on pro-immigration,
       that is a facially neutral ground to exercise the
       strike because it reflects a very substantial
       interest in this area of policy that most of us
       have strong views about this, but the fact that
       he went to a rally reflects a much higher level
       of interest. And so all of the objections are
       overruled.

No further discussion of Ulloa’s Batson challenges occurred.

    At trial Ulloa stipulated that he had been found on or
about October 23, 2011, in Phoenix, noting that it would be
“surprising” if the government failed to prove the elements of
illegal reentry. Ulloa intended to build his case on the
insanity defense, alleging that, due to injuries he sustained
during his career as a professional boxer, he was unable to
understand the wrongfulness of his actions. The government
presented evidence that Ulloa had been previously deported
and was found in the United States in October 2011, and
evidence suggesting that Ulloa did not have a mental disease
or defect. Ulloa presented evidence suggesting that he in fact
suffered from chronic traumatic encephalopathy, a disease
            UNITED STATES V. ALVAREZ-ULLOA                     9

which – according to his expert witness – could have
rendered him legally insane.

    Under the jury instructions, for Ulloa to be found guilty
under § 1326(a), the government was required to prove that:
(1) Ulloa “was deported from the United States on or about
December 17, 2010,” (2) Ulloa “voluntarily entered the
United States,” (3) “after entering the United States, [Ulloa]
knew that he was in the United States and knowingly
remained,” (4) “on or about October 23, 2011, [Ulloa] was
found in the United States,” and (5) “[Ulloa] was an alien at
the time of [his] entry into the United States.” The court
further instructed that “[a] defendant is insane only if at the
time of the crime charged, one, the defendant had a severe
mental disease or defect; and two, as a result, the defendant
was unable to appreciate the nature and quality or the
wrongfulness of his acts.”

    Several hours after the jury began deliberations, the court
received a note from the foreperson, which stated:

        The jury needs clarification on the defendant’s
        mental state needed to consistently meet the,
        quote, ‘insane,’ close quote, criteria for the
        entire time he was here illegally, (from
        2010–2011). Specifically, if the defendant
        had any moments of mental clarity during that
        time or he was able to appreciate the nature
        and quality or wrongfulness of his acts, does
        that negate the defense of insanity?

After consulting with the parties, the court answered the
question by referring the jury to the original jury instructions.
Thereafter, the jury sent out another note stating:
10          UNITED STATES V. ALVAREZ-ULLOA

       We currently seem to be unable to reach a
       unanimous decision on a verdict and would
       like some direction from the court on what to
       do at this point.

The court responded:

       If the Court gives a more specific answer to
       your previous question, would you wish to
       continue to deliberate to try to reach a
       unanimous verdict?

After the jury replied affirmatively, the court provided the
jury with the following supplemental instruction in response
to its question:

       The insanity defense would be negated if,
       after entering the United States, the Defendant
       ceased to be insane for a long enough time
       that he reasonably could have left the United
       States, and he then knowingly remained in the
       United States for that time.

Thirty-seven minutes later, the jury returned a guilty verdict.
The district court subsequently sentenced Ulloa to 48 months’
imprisonment.

                              II.

                              A.

    We first address Ulloa’s contention that the district court
improperly rejected his Batson challenges. We normally will
not set aside a district court’s findings under Batson unless
            UNITED STATES V. ALVAREZ-ULLOA                  11

clearly erroneous. United States v. De Gross, 960 F.2d 1433,
1442 (9th Cir. 1992). However, we review de novo whether
the district court properly applied Batson. See United States
v. Collins, 551 F.3d 914, 919 (9th Cir. 2009).

    Under Batson, “[p]urposeful racial discrimination in
selection of the venire violates a defendant’s right to equal
protection because it denies him the protection that a trial by
jury is intended to secure.” 476 U.S. at 86. In ruling on a
Batson challenge, a district court must apply a three-part
framework:

       First, a defendant must make a prima facie
       showing that a peremptory challenge has been
       exercised on the basis of race. Second, if that
       showing has been made, the prosecution must
       offer a race-neutral basis for striking the juror
       in question. Third, in light of the parties’
       submissions, the trial court must determine
       whether the defendant has shown purposeful
       discrimination.

Miller-El v. Cockrell, 537 U.S. 322, 328–29 (2003) (citations
omitted).

    At Batson’s third step, “the trial court must decide not
only whether the reasons stated are race-neutral, but whether
they are relevant to the case, and whether those stated reasons
were the prosecutor’s genuine reasons for exercising a
peremptory strike, rather than pretexts invented to hide
purposeful discrimination.” Green v. LaMarque, 532 F.3d
1028, 1030 (9th Cir. 2008). The trial court “must undertake
a sensitive inquiry into such circumstantial and direct
evidence of intent as may be available.” Id. (quoting Batson,
12          UNITED STATES V. ALVAREZ-ULLOA

476 U.S. at 93). Such evidence may include “the
prosecutor’s demeanor; . . . how reasonable, or how
improbable, the explanations are; and . . . whether the
proffered rationale has some basis in accepted trial strategy.”
Miller-El, 537 U.S. at 339. The court cannot simply accept
the prosecutor’s reasons as facially neutral and stop there; it
must make an explicit determination at the third step. See
Green, 532 F.3d at 1030–31; United States v. Alanis,
335 F.3d 965, 969 (9th Cir. 2003).

    Here, the district court did not reach the third step of the
Batson framework. Although it questioned both the
government and Ulloa’s counsel about the strikes, the court
dispensed with each challenge by determining that the
government had asserted facially neutral grounds. The court
conducted no further analysis after determining that facially
neutral grounds existed. At one point, the court noted that
“it’s the perception of the prosecutor, not my perception that
matters.” This comment suggests the court believed its
responsibility under the Batson framework was merely to
establish the presence of a facially neutral ground. Yet our
precedents specifically require that the court evaluate the
persuasiveness of the government’s facially neutral reason.
See Green, 532 F.3d at 1030–31; Alanis, 335 F.3d at 969.
The district court thus erred in failing to reach Batson’s third
step.

                              B.

    Faced with an improper application of the Batson
framework, we may decide de novo whether the
government’s strikes were motivated by purposeful
discrimination. See Green, 532 F.3d at 1033; Alanis,
335 F.3d at 969 n.5; see also United States v. Stephens,
            UNITED STATES V. ALVAREZ-ULLOA                    13

514 F.3d 703, 713 (7th Cir. 2008). Alternatively, we may
remand to the district court, either for a factual hearing or for
a new trial. See United States v. Thompson, 827 F.2d 1254,
1261–62 (9th Cir. 2007); see also United States v. Kimbrel,
532 F.3d 461, 469 (6th Cir. 2008); United States v. Torres-
Ramos, 536 F.3d 542, 561 (6th Cir. 2008). Because the
record here is well-developed and there are not outstanding
issues that would benefit from an additional hearing long
after the original trial, we assess now whether Ulloa proved
purposeful discrimination in violation of Batson.

    Ulloa contends that impermissible racial discrimination
inhered in the government’s strikes of three prospective
jurors: (1) Panelist 25 – a sports enthusiast and former pre-
med major who had attended a pro-immigration rally;
(2) Panelist 29 – a student at a local law school who had
worked in criminal defense; and (3) Panelist 30 – a woman
who described negative experiences with law enforcement,
including a police raid on her property. Each of these
prospective jurors was Hispanic.

    Ulloa has made out a prima facie case under step one of
Batson that each of these strikes was based on purposeful
racial discrimination. To make out a prima facie case, a
defendant must show only “that the totality of the relevant
facts gives rise to an inference of discriminatory purpose.”
Batson, 476 U.S. at 93–94; see Johnson v. California,
545 U.S. 162, 173 (2005) (concluding that Batson’s first step
is not a “more likely than not” standard). The challenges here
meet that modest bar. Out of a venire of thirty-six potential
jurors containing five Hispanic individuals, the government
used three of its seven peremptory strikes on Hispanics.
Given the racially charged context of this case, the
government’s striking sixty percent of Hispanic individuals
14          UNITED STATES V. ALVAREZ-ULLOA

and approximately eight percent of non-Hispanic individuals
is sufficient to ground a prima facie case. Cf. id. at 164–65
(concluding that the defendant made out a prima facie case
because the prosecution used three of its twelve challenges to
strike the only African-American prospective jurors from the
venire).

    Likewise, the government articulated race neutral
justifications for each of the challenged strikes. The
government stated that Panelist 25 was struck because his
background in sports medicine and apparent interest in
immigration policy might have rendered him reluctant to
convict a former boxer of an immigration violation. Panelist
29, according to the government, was struck out of concern
that her experience in criminal defense might bias her against
the government. And Panelist 30 was struck because of the
government’s concern that an individual who had negative
experiences with law enforcement might be biased in favor of
a criminal defendant. Each of these purported reasons is
race-neutral and has support in the record.

    Ulloa’s challenges thus turn on step three of the Batson
framework. In addressing step three, we emphasize that, as
the party alleging unconstitutional discrimination, Ulloa bears
the ultimate burden. Yee v. Duncan, 463 F.3d 893, 895 (9th
Cir. 2006). We examine Ulloa’s challenges at step three
seriatim.

    First, Panelist 29 – the law student with criminal defense
experience. In general, the concern that jurors with legal
experience will bias or commandeer a jury is widespread
among lawyers, and other courts have accepted it as a
persuasive justification at step three of Batson. See United
States v. Bolden, 545 F.3d 609, 613–14 (8th Cir. 2008). More
            UNITED STATES V. ALVAREZ-ULLOA                   15

importantly, there is simply no evidence in the record that the
government’s concern related to anything other than the
panelist’s legal background, i.e., that it was pretextual. Ulloa
suggests that the government’s failure to strike several
similarly situated prospective jurors indicates a
discriminatory motive. Comparative juror analysis is a useful
tool at Batson step three, Miller-El v. Dretke, 545 U.S. 231,
241 (2005), and failure to strike similarly situated venire
members can ground a conclusion that purposeful
discrimination occurred, see Green, 532 F.3d at 1030.
However, Ulloa does not point to any panelists not struck
who actually were lawyers or law students, and who would
have raised the same concern the government articulated as
justification for its strike of Panelist 29. Thus, Ulloa cannot
satisfy his burden of showing purposeful racial
discrimination.

    Second, Panelist 30 – the woman who disclosed negative
encounters with law enforcement. This challenge similarly
fails. Other courts have indicated that a prospective juror’s
potential distrust of law enforcement may ground a
peremptory strike. See Edwards v. Roper, 688 F.3d 449, 455
(8th Cir. 2012). That justification is particularly convincing
in a case such as this one, where the prospective juror
described deeply traumatic experiences involving law
enforcement, including having firearms pointed at her
children during a police raid. As with Panelist 29, there is no
evidence in the record that the government was concerned
about race and Ulloa cannot point to panelists not struck who
were situated similarly to Panelist 30. Although several non-
Hispanic jurors who were not struck disclosed family
members convicted of crimes, none revealed the same kind of
traumatic encounter with police as did Panelist 30.
16          UNITED STATES V. ALVAREZ-ULLOA

    Finally, Panelist 25 – the former sports medicine student
who had attended a pro-immigration rally. As with the other
challenged strikes, there is no evidence in the record that the
government was concerned about this panelist’s race.
Comparative analysis reveals no similarly situated non-
Hispanic jurors who were not struck. Ulloa identifies Panelist
45, who had a close friend involved in boxing, as a similarly
situated juror. However, Panelist 45 differed from Panelist
25 in at least two meaningful ways. First, Panelist 45’s
experience with sports was apparently casual and second-
hand, rather than first-hand as part of a course of academic
training. Second, Panelist 25 had both a sports background
and a potential interest in immigration policy, making him a
more attractive target for a strike than Panelist 45. Although
the government’s decision to strike a Hispanic venire member
for a purported interest in immigration policy perhaps raises
questions about motive, the burden of showing purposeful
discrimination rests with Ulloa. In a case, such as this one,
where the statistical evidence is not overwhelming and
comparative analysis is unhelpful, Ulloa cannot meet that
burden.

    We hold that, although the district court erred in applying
the Batson framework, Ulloa failed to show purposeful
discrimination, and the record does not support such a finding
on de novo review. We therefore reject Ulloa’s Batson
challenges.

                             III.

                              A.

    Ulloa next contends that the district court’s supplemental
instruction impermissibly coerced the jury’s verdict in
            UNITED STATES V. ALVAREZ-ULLOA                   17

violation of the Sixth Amendment. Although we review the
decision to give a supplemental jury instruction for abuse of
discretion, see United States v. Solomon, 825 F.2d 1292, 1295
(9th Cir. 1987), we review de novo whether a trial court’s
actions impermissibly coerced a jury’s verdict, United States
v. Williams, 547 F.3d 1187, 1202 n.14 (9th Cir. 2008).

    In resolving Ulloa’s challenge, we first examine whether
the supplemental instruction was substantively correct. Ulloa
was charged with the crime of being “found in” the United
States after having been removed, one of “three distinct
substantive offenses” under § 1326(a). United States v.
Covian-Sandoval, 462 F.3d 1090, 1094 (9th Cir. 2006). It is
an affirmative defense to any federal crime, including those
under § 1326, that “at the time of the commission of the acts
constituting the offense, the defendant, as a result of a severe
mental disease or defect, was unable to appreciate the nature
and quality or the wrongfulness of his acts.” 18 U.S.C.
§ 17(a).

    Although we have not had occasion to apply the insanity
defense to the “found in” offense under § 1326(a), our
precedents offer guidance on how the defense operates.
Illegal reentry is a continuing offense, meaning that the
offense “commences with the illegal entry, but is not
completed until discovery.” United States v. Hernandez-
Guerrero, 633 F.3d 933, 936 (9th Cir. 2011). When a
defendant asserts an affirmative defense to a continuing
offense, he generally must show that the requirements for the
defense were satisfied for the entire period in question. See
United States v. Bailey, 444 U.S. 394, 412 (1980) (noting that
an individual using a duress defense to defend a charge of
escape, another continuing offense, “must . . . offer evidence
justifying his continued absence from custody as well as his
18            UNITED STATES V. ALVAREZ-ULLOA

initial departure”); see also United States v. Williams,
791 F.2d 1383, 1388 (9th Cir. 1986). Continuing offenses, by
their nature, contemplate extended periods of proscribed
criminal conduct. It would be anomalous for a defense that
negates culpability for only one portion of a continuing
offense’s criminal period to completely bar conviction.

    The Tenth Circuit dealt with a case which involved a
situation similar to the case at bench, in which the defendant
asserted duress as a defense to an illegal reentry charge under
§ 1326(a). See United States v. Portillo-Vega, 478 F.3d 1194
(10th Cir. 2007). There, the defendant claimed that he
illegally reentered the United States because he feared
persecution at the hands of Mexican police. Id. at 1198–99.
The court reasoned that for the defendant to be entitled to a
duress instruction, he needed to adduce evidence to show not
only that he reasonably feared death or serious bodily injury
when he reentered, but also throughout the duration of his
illegal stay. Id. at 1201.2 The logic of Portillo-Vega applies
with equal force to the insanity defense, which is historically
and conceptually analogous to duress. See Powell v. Texas,
392 U.S. 514, 535–36 (1968) (plurality opinion). To succeed
in his defense, Ulloa thus needed to prove that he was legally
insane for virtually the entire duration of his illegal stay, such
that he could not reasonably have left the United States. We
therefore conclude that the district court’s supplemental
instruction was substantively correct.



  2
    Specifically, the court noted that for the duress defense to abrogate
culpability under § 1326(a), the defendant must “proffer evidence of a
bona fide effort to surrender or return to custody as soon as the claimed
duress or necessity had lost its coercive force.” Portillo-Vega, 478 F.3d
at 1201 (quoting Bailey, 444 U.S. at 415).
            UNITED STATES V. ALVAREZ-ULLOA                    19

                               B.

     We next consider whether the supplemental instruction
was impermissibly coercive. We evaluate whether a trial
court’s supplemental charge to a jury was coercive “in its
context and under all the circumstances.” Smith v. Curry,
580 F.3d 1071, 1080 (9th Cir. 2009) (quoting Lowenfeld v.
Phelps, 484 U.S. 231, 237 (1988)). When a trial court
responds to jury questions “every effort must be undertaken
to avoid influencing or coercing a jury to reach one verdict
over another.” United States v. Evanston, 651 F.3d 1080,
1084 (9th Cir. 2011). “Extraordinary caution must be
exercised when acting to break jury deadlock.” Id. at 1085.
However, the trial court has a responsibility to assist the jury
in applying the proper legal standards. When the jury “makes
explicit its difficulties by, for example, asking a question, the
trial court should clear [the jury’s difficulties] away with
concrete accuracy.” Arizona v. Johnson, 351 F.3d 988, 994
(9th Cir. 2003) (quoting Bollenbach v. United States,
326 U.S. 607, 612–13 (1946) (internal quotation marks
omitted) (alteration in original)).

    In Smith, the trial court faced a jury deadlocked as a result
of a single holdout. 580 F.3d at 1079. The trial court
instructed the jurors to focus on “specific evidence the court
thought supported the guilty verdict favored by the majority
of jurors.” Id. at 1082. We held the instruction to be
coercive, in part, because “the [trial court’s] summary of the
evidence was not neutral by any reasonable standard.” Id. at
1083. By contrast, in Parker, a state trial court judge
provided additional instructions to a deadlocked jury,
encouraging the jurors to “not hesitate to re-examine [their]
views” and to experiment with various deliberation strategies.
Parker v. Small, 665 F.3d 1143, 1145–46 (9th Cir. 2011). We
20            UNITED STATES V. ALVAREZ-ULLOA

accepted the California Court of Appeal’s conclusion that the
trial judge’s behavior was not coercive, and distinguished
Smith, because the trial court did not “attempt to recast the
evidence in a light more favorable to the prosecution.” Id. at
1149; cf. Johnson, 351 F.3d at 993 (upholding, under the
abuse of discretion standard, a trial court’s supplemental
instruction defining “consent” in a sexual assault prosecution
through “a non-exclusive list of examples of what ‘without
consent’ includes”).3

     Conducting the holistic, contextual inquiry required by
our precedents, we conclude that the supplemental instruction
in this case was not coercive. Ulloa’s central argument is that
the supplemental instruction indicated Ulloa’s mental defect
was of a kind that could have relented for long enough to
make him aware of the wrongfulness of his presence in the
United States, thereby putting a pro-government gloss on the
evidence. Contrary to Ulloa’s assertion, the supplemental
jury instruction did not suggest that Ulloa’s mental defect
could have relented. Rather, it merely informed the jury that
if the defect had relented that would be legally dispositive,
without betraying a stance on whether the defect had relented.
Cf. Parker, 665 F.3d at 1149; Smith, 580 F.3d at 1083.
Moreover, the district court gave the jury the supplemental
instruction only after the jury made clear that it did not
understand the legal standard and failed to reach a verdict on
the original instructions. The supplemental instruction was
brief, direct, and does not appear to have been directed at any


 3
   Parker, like Smith, arose in the habeas context, requiring that we apply
the deferential standard of review prescribed by the AEDPA, 28 U.S.C.
§ 2254(d). Parker, 665 F.3d at 1147. However, our explanation in that
case of how the facts at hand differed from those in Smith remains
persuasive authority.
            UNITED STATES V. ALVAREZ-ULLOA                  21

particular juror. The district court did not err in giving the
supplemental instruction.

                              C.

    Ulloa also contends that the supplemental jury instruction
constituted a constructive amendment of the indictment in
violation of the Fifth Amendment. We review de novo
whether a constructive amendment took place. United States
v. Hartz, 458 F.3d 1011, 1019 (9th Cir. 2006). A constructive
amendment occurs “when the charging terms of the
indictment are altered, either literally or in effect, by the
prosecutor or a court after the grand jury has last passed upon
them.” United States v. Ward, 747 F.3d 1184, 1189 (9th Cir.
2014) (quoting United States v. Van Stoll, 726 F.2d 584, 586
(9th Cir. 1984)); see also United States v. Dipentino, 242 F.3d
1090, 1094–95 (9th Cir. 2001); Howard v. Dagget, 526 F.2d
1388, 1389–90 (9th Cir. 1975) (per curiam). For a
constructive amendment to inhere, jury instructions must
“diverge materially” from the indictment and evidence must
have been “introduced at trial that would enable the jury to
convict the defendant for conduct with which he was not
charged.” Ward, 747 F.3d at 1191. If the possibility exists
that “the defendant’s conviction could be based on conduct
not charged in the indictment,” then a constitutional violation
results because an amendment “destroy[s] the defendant’s
substantial right to be tried only on charges presented in an
indictment.” Id. (quoting Stirone v. United States, 361 U.S.
212, 217 (1960) (alteration in original)).

     For example, in Howard we found a constructive
amendment where a defendant was indicted for having
business relationships with two particular prostitutes, but the
trial court’s instructions did not “specifically reference the
22          UNITED STATES V. ALVAREZ-ULLOA

two women named in the indictment.” Ward, 747 F.3d at
1190–91 (citing Howard, 526 F.2d at 1389). We found a
constructive amendment in this circumstance because the
government had introduced evidence at trial that the
defendant had relationships with various prostitutes aside
from the individuals mentioned in the indictment. Howard,
526 F.2d at 1389–90.

    We have not previously addressed whether a constructive
amendment occurs when an indictment for a continuing
offense does not specifically mention the duration of that
offense. Seizing on this ambiguity, Ulloa argues that because
the indictment on which he was tried mentioned only his
removal and found-in dates and did not discuss the time
between when Ulloa reentered the country and when he was
found, the supplemental jury instruction “expand[ed] the
temporal scope of the acts that the jurors had to conclude
were negated by Mr. Ulloa’s insanity defense” and, thus,
constituted a constructive amendment.

    To resolve Ulloa’s challenge, we must determine whether
the indictment adequately “presented” the period of time
between when Ulloa reentered and when he was found in
Phoenix such that his rights were not abridged. Stirone,
361 U.S. at 217. We note first that an indictment generally
must articulate only “the crime charged,” “the essential
elements of the indicated crime,” and “the acts alleged to
constitute the offense in detail sufficient to bring them within
the scope of the offense and sufficient to inform the accused
generally of the acts attributed to him and the time of their
commission.” Elder v. United States, 142 F.2d 199, 200 (9th
Cir. 1944). In the case of the “found in” crime with which
Ulloa was charged, those elements are that the defendant:
(1) is an alien; (2) had previously been removed; (3) was
              UNITED STATES V. ALVAREZ-ULLOA                           23

subsequently found in the United States; and (4) did not have
the permission of the Attorney General to reapply for
admission. See 8 U.S.C. § 1326(a); United States v. Parga-
Rosas, 238 F.3d 1209, 1211 (9th Cir. 2001). An indictment
for the found in crime need not mention the actual reentry
because that concept is “embedded in the ‘found in’ offense,”
as must be, by extension, the time spent in the United States
between when one reenters and is found. See United States
v. Pacheco-Medina, 212 F.3d 1162, 1166 (9th Cir. 2000).

    Reentry and time spent inside the United States after
reentry are embedded within § 1326(a)’s elements because
illegal reentry is a continuing offense. United States v.
Hernandez-Guerrero, 633 F.3d 933, 936 (9th Cir. 2011).
Because continuing offenses contemplate conduct which is
open-ended in time, we generally do not require the
government to mention each day in the charging document.
See United States v. Forrester, 616 F.3d 929, 941 (9th Cir.
2010) (noting that an indictment for conspiracy identifying
the conspiracy’s end date need not specify when the
conspiracy began); see also United States v. Spaeni, 60 F.3d
313, 315 (7th Cir. 1995) (“[O]nly in rare cases is time a
material element of a charged offense, even where continuing
offenses . . . are alleged.”).

    Given that the concepts of reentry and illegal presence are
embedded in § 1326(a), we conclude that, in this case, no
constructive amendment occurred.4 Because it is well-
established in this circuit that an indictment under § 1326(a)
need not specifically denote the duration of a defendant’s


 4
   We do not address whether, in the context of a non-continuing offense,
an indictment’s failure to mention a particular period of time later
referenced in jury instructions may give rise to a constructive amendment.
24          UNITED STATES V. ALVAREZ-ULLOA

illegal presence, the indictment provided Ulloa with adequate
notice that he was being charged with a course of criminal
conduct that began when he reentered the United States. The
supplemental jury instruction thus was not “distinctly
different” from the indictment. United States v. Bhagat, 436
F.3d 1140, 1145 (9th Cir. 2006); cf. United States v. Patino,
962 F.2d 263, 266 (2d Cir. 1992) (noting that the touchstone
of the constructive amendment inquiry is whether “the
defendant was given notice of the ‘core of criminality’ to be
proven at trial”) (quoting United States v. Heimann, 705 F.2d
662, 666 (2d Cir. 1983) (emphasis added)). The indictment
and supplemental instruction thus did not deprive Ulloa of
any substantive right.

                             IV.

     For the foregoing reasons, we reject Ulloa’s contentions,
first, that the government violated Batson in exercising its
peremptory challenges and, second, that the district court’s
supplemental jury instruction impermissibly coerced the
verdict and constructively expanded the indictment.

    The judgment of the district court (No. 13-10500) and the
district court’s order revoking supervised release (No. 13-
10501) are AFFIRMED.
