FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 09-50446
Plaintiff-Appellee, D.C. No.
v. 3:08-cr-03421-
GERARDO SANDOVAL-GONZALEZ, BEN-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Roger T. Benitez, District Judge, Presiding
Argued and Submitted
August 5, 2010—Pasadena, California
Filed April 25, 2011
Before: Alex Kozinski, Chief Judge, Stephen Reinhardt and
Kim McLane Wardlaw, Circuit Judges.
Opinion by Judge Reinhardt
5327
5330 UNITED STATES v. SANDOVAL-GONZALEZ
COUNSEL
Karen P. Hewitt, United States Attorney, and Bruce R. Castet-
ter and David P. Curnow, Assistant United States Attorneys,
San Diego, California, for the plaintiff-appellee.
Hanni M. Fakhoury, Federal Defenders of San Diego, San
Diego, California, for the defendant-appellant.
OPINION
REINHARDT, Circuit Judge:
Gerardo Sandoval-Gonzalez was convicted under 8 U.S.C.
§ 1326(a) for being an alien who reentered the United States
after previously being deported. The jury at his trial, however,
was not required to find beyond a reasonable doubt that San-
doval was an alien. Instead, the jury was told that “there is a
presumption” of his alienage, and the burden of proof was
shifted to Sandoval to establish that he had obtained Ameri-
can citizenship by having been born to a U.S. citizen father.
We hold that this was error, and, moreover, a prejudicial
error. Accordingly, we vacate his conviction and remand.
UNITED STATES v. SANDOVAL-GONZALEZ 5331
BACKGROUND
Sandoval’s birth certificate states that he was born in 1957
in Tijuana, Mexico, to a Mexican mother and an American
father. At the age of fourteen, he entered the United States
without inspection. In 2006, over thirty years later, he was
charged by the Department of Homeland Security (DHS) with
being an alien unlawfully present in the country. Sandoval did
not contest his removability, and he was deported in February
2006. In December 2006, Sandoval was again deported after
having crossed back into the United States without the con-
sent of the Attorney General.
In 2008, Sandoval was again discovered in the United
States. He first told immigration officers that he was a U.S.
citizen who had been born in Fresno, California, but then
acknowledged that he had previously been deported and that
he lacked any immigration documents allowing him to enter
or remain in the United States. The government charged San-
doval with being an alien who was previously deported from
the United States and then found in the country without per-
mission, a crime under 8 U.S.C. § 1326.
At trial, the government played for the jury a recording of
part of Sandoval’s February 2006 deportation hearing in
immigration court, to establish his alienage. The jury heard
the following exchange between the immigration judge and
Sandoval:
[IJ]: Alright. Mr. Sandoval are you a native
and a citizen of Mexico?
[Sandoval]: Yes.
[IJ]: Alright. Are either of your parents U.S.
citizens?
[Sandoval]: Yes.
5332 UNITED STATES v. SANDOVAL-GONZALEZ
[IJ]: Who is a U.S. citizen?
[Sandoval]: My mother and my father. They have a
mica.[1]
[IJ]: Ok. Well usually if you are talking
about a mica, they are legal residents.
Ok. If they have a mica for five years,
then they are eligible to become citizens
and then they apply for naturalization.
Ok. So are they legal residents?
[Sandoval]: Yes.
....
[IJ]: Alright. This says that you came into
the United States on June 19, 1972?
[Sandoval]: Yes.
[IJ]: That’s more than 30 years ago. Ok,
when you came into the United States
in 1972 did you come in legally or ille-
gally?
[Sandoval]: illegal
[IJ]: Has anyone in your family ever made
an application to get you your legal res-
idence status?
[Sandoval]: Never.
1
At the trial, U.S. Border Patrol Agent Antonio Hernandez testified that
a “mica” is “another word indicating that someone has a green card, which
is a legal resident permit to be in the United States.”
UNITED STATES v. SANDOVAL-GONZALEZ 5333
[IJ]: Why Not?
[Sandoval]: Well, time went by.
Through U.S. Border Patrol Agent Antonio Hernandez, the
government also introduced into evidence Sandoval’s Mexi-
can birth certificate, which stated that he was born in Tijuana,
his mother was a Mexican national, and his father was a
national of the United States who was originally from Los
Angeles, California.
On cross-examination, defense counsel began to ask Her-
nandez about the possibility of a foreign-born individual
acquiring citizenship at birth through a U.S. citizen parent,
known as “derivative citizenship.” Upon the government’s
request for a side bar discussion, defense counsel explained
that under our decision in United States v. Smith-Baltiher, 424
F.3d 913 (9th Cir. 2005), evidence of derivative citizenship
may be used to cast doubt upon the government’s allegation
that a defendant is an alien, and that Sandoval’s father’s citi-
zenship provided basis for such doubt. The government
objected that derivative citizenship is an affirmative defense
for which the defendant must make a prima facie showing of
eligibility — namely, that he could meet the burden of estab-
lishing such citizenship: that he is “a person born outside the
geographical limits of the United States . . . of parents one of
whom is an alien, and the other a citizen of the United States
who, prior to the birth of such person, was physically present
in the United States” for a period of ten years, at least five of
which were after the age of fourteen.2
2
The requirements for derivative citizenship, the status claimed by San-
doval, are set forth in 8 U.S.C. § 1401(g). It states, in relevant part, that
the following is a U.S. citizen or national from birth:
a person born outside the geographical limits of the United States
and its outlying possessions of parents one of whom is an alien,
and the other a citizen of the United States who, prior to the birth
of such person, was physically present in the United States or its
5334 UNITED STATES v. SANDOVAL-GONZALEZ
While the court initially allowed the defense to proceed
with its questioning, when later discussing jury instructions
with counsel it expressed doubts that a defendant bore no bur-
den to establish his eligibility for derivative citizenship,
because “for the government to disprove alienage [sic; pre-
sumably intended to be “citizenship”] is an almost impossible
task because it requires that they prove a negative.” The court
concluded that it would provide the jury with the legal defini-
tion of derivative citizenship, but it would allow the govern-
ment to “ask, well, have any of these other things [the
requirements for derivative citizenship] been proven to your
satisfaction . . . ? Have you heard any evidence of that?”
The government accepted the court’s invitation to do so.
During its closing argument, the government explained that it
had proven alienage by presenting Sandoval’s statements in
the recording from his deportation proceedings and evidence
that he had previously been deported. It continued, “You’ve
heard that there is a presumption that if someone is born out-
side of the United States, they are not considered a United
States citizen.” Sandoval’s objection was overruled. The gov-
ernment then explained that the jury instruction on derivative
citizenship provided “two elements that must be established”
— (1) birth to one U.S. citizen parent, who (2) met the physi-
cal presence requirement prior to the person’s birth — and
argued that “the mere fact that the birth certificate lists the
defendant’s father as a national of the United States does not
mean that the other elements have been established.” Sando-
val’s objection was again overruled.
outlying possessions for a period or periods totaling not less than
five years, at least two of which were after attaining the age of
fourteen years.
Until 1986, however, the last sentence read “ten years, at least five of
which.” Because Sandoval was born in 1957, the prior version applies to
him. See Pub. L. 96-653, sec. 12; Pub. L. 100-525, sec. 8(r) (effective
dates).
UNITED STATES v. SANDOVAL-GONZALEZ 5335
In response, defense counsel stressed to the jury that the
government had not proven alienage beyond a reasonable
doubt. Counsel explained that Sandoval’s statements during
his deportation proceedings were made in confusion over the
difference between citizenship and permanent residence, as
evidenced by the recording. Moreover, counsel argued, San-
doval’s statement that he was a Mexican citizen was made out
of a desire to leave custody, rather than as a conclusive state-
ment of his citizenship.
Following closing arguments, the court denied Sandoval’s
motion to acquit under Federal Rule of Criminal Procedure
29. It concluded that a rational juror could find beyond a rea-
sonable doubt that Sandoval was a deported alien in the
United States, in light of his admissions and two prior depor-
tations, and the fact that he had not demonstrated that he was
entitled to derivative citizenship. The entire trial lasted around
four hours. After seven hours of deliberation, the jury sent a
note to the court expressing its inability to reach a decision.
Following two more hours of deliberation the following
morning, the jury returned a guilty verdict.3 Sandoval timely
appealed.
ANALYSIS
I. Derivative Citizenship
The government reiterates its argument that derivative citi-
zenship is an affirmative defense to a criminal charge under
§ 1326, for which the defendant must satisfy a burden of pro-
duction before being permitted to mount the defense. Specifi-
3
The court sentenced Sandoval to a term of 84 months of imprisonment
and three years of supervised release. On appeal, Sandoval challenges his
sentence as well. Because we vacate his conviction, we do not reach this
issue. Similarly, we need not address the alternative grounds for reversal
Sandoval advances: misconduct by the prosecutor in (1) revealing his
criminal history to the jury, and (2) making a knowingly false statement
to the jury.
5336 UNITED STATES v. SANDOVAL-GONZALEZ
cally, it believes that a defendant must be required to
demonstrate that he meets the requirements for derivative citi-
zenship under § 1401(g) before such a defense is allowed. We
review this question de novo. United States v. Hernandez-
Franco, 189 F.3d 1151, 1157 (9th Cir. 1999). We conclude
that a defendant does not face any such burden because he is
attempting to negate an element of the offense for which the
government bears the burden of proof beyond a reasonable
doubt.
[1] Section 1326(a) creates criminal liability for “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” without permission from the govern-
ment. It is well-established that, by the statute’s plain terms,
alienage is a core element of the § 1326 offense. United States
v. Meza-Soria, 935 F.2d 166, 168 (9th Cir. 1991); see also
Smith-Baltiher, 424 F.3d at 921; United States v. Gracidas-
Ulibarry, 231 F.3d 1188, 1196 (9th Cir. 2000) (en banc);
United States v. Ortiz-Lopez, 24 F.3d 53, 55 (9th Cir. 1994).
As such, “the government must prove alienage beyond a rea-
sonable doubt,” Meza-Soria, 935 F.2d at 171, and a defendant
“is entitled to have the jury determine that question at trial.”
Smith-Baltiher, 424 F.3d at 921 (citing Apprendi v. New Jer-
sey, 530 U.S. 466, 476-477 (2000)).4
4
The government relies on Farrell v. United States, 381 F.2d 368 (9th
Cir. 1967), for the proposition that “[o]nce status as an alien has been
established, it is presumed to have continued until the contrary is shown,”
id. at 369, and argues that Sandoval’s prior deportations and previous
admissions had already established alienage. The Farrell presumption sur-
vives neither the cases we cite here, nor subsequent decisions of the
Supreme Court establishing that a presumption may not relieve the gov-
ernment of its burden of proving each element of an offense beyond a rea-
sonable doubt. See, e.g., Carella v. California, 491 U.S. 263 (1989) (per
curiam); Sandstrom v. Montana, 442 U.S. 510 (1979). Farrell has been
abrogated, many times over, and it does not control here. See Miller v.
UNITED STATES v. SANDOVAL-GONZALEZ 5337
[2] In Smith-Baltiher, we considered a claim of derivative
citizenship made by a defendant contesting the alienage ele-
ment of the offense. We held that “[b]ecause derivative citi-
zenship would negate that element of the offense,” a
defendant “must be allowed to present that defense to the
jury.” 424 F.3d at 922. Seizing on the word “defense,” the
government now argues that derivative citizenship is an affir-
mative defense for which the defendant must first make out
a prima facie case. The government reads too much into that
term, however. We reversed the conviction in Smith-Baltiher
because the defendant had been collaterally estopped from
presenting any evidence that would support his claim of
derivative citizenship.5 Id. at 917. It was in that context that
we used the term “defense” to mean the defendant’s “evi-
dence of derivative citizenship” that he was not permitted to
introduce, and the claim of United States citizenship that he
was not allowed to make to the jury. Id. at 922. We did not
require that a defendant make any preliminary showing before
arguing against his alienage on the basis that he may have
been born a U.S. citizen by virtue of derivative citizenship. To
the contrary, we reaffirmed that it is the government that has
the burden of proving alienage in a prosecution under § 1326,
and therefore found that preventing Smith from attempting to
negate that element “served to relieve the government of its
Gammie, 335 F.3d 889 (9th Cir. 2003) (en banc). In any event, factual
findings from a deportation hearing or prior deportation order may not be
used to conclusively establish alienage in a criminal proceeding, where the
burden of proof on the government is higher. United States v. Medina, 236
F.3d 1028, 1030-1031 (9th Cir. 2001). Rather, as the jury was properly
instructed here, such facts may be considered only as relevant, but not
conclusive, evidence.
5
As we observed in Smith-Baltiher, it is now the law of our circuit that
collateral estoppel may not be used offensively against a criminal defen-
dant “ ‘to establish, as a matter of law, an element of an offense or to con-
clusively rebut an affirmative defense on which the Government bears the
burden of proof beyond a reasonable doubt.’ ” Id. at 920 (quoting United
States v. Arnett, 353 F.3d 765, 766 (9th Cir. 2003) (en banc)).
5338 UNITED STATES v. SANDOVAL-GONZALEZ
obligation to establish Smith’s guilt beyond a reasonable
doubt.” Id. at 923. Lest there be any further doubt, we now
clarify that a criminal defendant faces no burden whatsoever
regarding the issue of derivative citizenship in a prosecution
for an offense of which alienage is an element.
Our conclusion that derivative citizenship is not an affirma-
tive defense is confirmed by comparing it with actual affirma-
tive defenses. Classic affirmative defenses are those, “such as
self-defense and necessity, [that] do not negative any of the
elements of the crime but instead go to show some matter of
justification or excuse which is a bar to the imposition of
criminal liability.” 1 LaFave, Substantive Criminal Law
§ 1.8(c), at 82 (2d ed. 2003); see also United States v. Daven-
port, 519 F.3d 940, 945 (9th Cir. 2008). For such defenses, a
defendant may be held to a burden of production. Considering
the defenses of “duress” and “necessity” to the charge of
attempting to escape from prison, for example, the Supreme
Court has held that defendants must first make a “threshold
showing” of the defense before they may present it to a jury.
United States v. Bailey, 444 U.S. 394, 416 (1980). Moreover,
defendants often bear the burden of “prov[ing] the elements
of [an] affirmative defense by a preponderance of the evi-
dence.” United States v. Beasley, 346 F.3d 930, 935 (9th Cir.
2003) (self-defense); see also United States v. Dominguez-
Mestas, 929 F.2d 1379, 1383 (9th Cir. 1991) (per curiam)
(duress).6 For some affirmative defenses, such as insanity,
6
See also, e.g., 18 U.S.C. § 373(b) (Solicitation to commit a crime of
violence) (“It is an affirmative defense to a prosecution under this section
that, under circumstances manifesting a voluntary and complete renuncia-
tion of his criminal intent, the defendant prevented the commission of the
crime solicited . . . . If the defendant raises the affirmative defense at trial,
the defendant has the burden of proving the defense by a preponderance
of the evidence.”); id. § 1512(e) (Witness tampering) (“In a prosecution
for an offense under this section, it is an affirmative defense, as to which
the defendant has the burden of proof by a preponderance of the evidence,
that the conduct consisted solely of lawful conduct and that the defen-
dant’s sole intention was to encourage, induce, or cause the other person
UNITED STATES v. SANDOVAL-GONZALEZ 5339
statutes prescribe an even higher burden of proof for the
defendant. See 18 U.S.C. § 17(b) (“The defendant has the bur-
den of proving the defense of insanity by clear and convincing
evidence.”).
Other “defenses,” by contrast, are advanced simply to
negate an element of the crime. Defendants are largely free to
put on whatever relevant evidence they wish in an attempt to
create reasonable doubt about an element of the offense in the
mind of the jury, without meeting any burden of production
or proof. For example, a defendant who testifies “I wasn’t
there!” need not establish his absence from the crime scene or
his presence elsewhere; at all times the burden remains with
the government to prove beyond a reasonable doubt that the
defendant did, in fact, commit the alleged criminal act as
charged. See LaFave, supra, at 86-87 (“[T]he burden of proof
as to the ‘defense’ of alibi may not be placed upon the defen-
dant, for alibi of necessity negates [the] defendant’s participa-
tion in the conduct defined as criminal.”); see also United
States v. Audett, 529 F.2d 569 (9th Cir. 1976) (per curiam).
A jury may nonetheless convict in such a case, of course, if
it has no reasonable doubt that the government’s evidence
places the defendant at the scene of the crime, and that the
defendant was lying or mistaken when he claimed otherwise.
Derivative citizenship is a “defense” in this latter sense. As
we held in Smith-Baltiher, derivative citizenship is a fact that
negates an element of the offense: alienage. 424 F.3d at 922.
A defendant may assert that he has derivative citizenship just
as readily as he may assert that he is a U.S.-born citizen, or
that he has never before been excluded or deported from the
to testify truthfully.”); id. § 3146(c) (Failure to appear) (“It is an affirma-
tive defense to a prosecution under this section that uncontrollable circum-
stances prevented the person from appearing or surrendering, and that the
person did not contribute to the creation of such circumstances in reckless
disregard of the requirement to appear or surrender, and that the person
appeared or surrendered as soon as such circumstances ceased to exist.”).
5340 UNITED STATES v. SANDOVAL-GONZALEZ
country (and thus could not illegally re-enter). If he has evi-
dence that has a tendency to make derivative citizenship more
likely, it is relevant to the issue of alienage. Cf. United States
v. Ibarra, 3 F.3d 1333, 1334-1335 & n.3 (9th Cir. 1993),
overruled on other grounds by United States v. Alvarado-
Delgado, 98 F.3d 492, 493 (9th Cir. 1996) (en banc). It is for
the government to persuade the jury that, notwithstanding the
defendant’s claims or evidence to the contrary, it has proven
(1) alienage, (2) prior exclusion or deportation, and (3)
improper reentry or attempted reentry. Cf. Meza-Soria, 935
F.2d at 168.
[3] To be clear, the government does not have the burden
of disproving each element of derivative citizenship; only
“alienage” is among the elements of the crime, so only it must
be proven. Indeed, as we discuss below in affirming the denial
of Sandoval’s motion to acquit, the government advanced suf-
ficient evidence for a rational factfinder to conclude beyond
a reasonable doubt that Sandoval is a Mexican citizen, even
though the government did not disprove each criterion for
derivative citizenship. The government could endeavor to dis-
prove each requirement for derivative citizenship in an effort
to eliminate all doubt — for example, by producing the defen-
dants’ parents’ own immigration or residency records — but
it need not do so. Either way, at all times the question for the
jury is the same: whether the government’s evidence of guilt
so outweighs the defendant’s evidence to the contrary as to
eliminate reasonable doubt — not whether the defendant has
met any required burden.
II. Burden Shifting
Having clarified that a defendant faces no burden to claim
derivative citizenship in an effort to negate the government’s
charge that he is an alien, we consider whether such a burden
was improperly imposed on Sandoval here, and if so, whether
such error requires reversal.
UNITED STATES v. SANDOVAL-GONZALEZ 5341
A
[4] It is clear enough that, consistent with its confusion
over the “defense” of derivative citizenship, the district court
permitted the government to shift the burden of proof to San-
doval with regard to alienage. In her closing argument, the
prosecutor stated, “You’ve heard that there is a presumption
that if someone is born outside of the United States, they are
not considered a United States citizen.” Following the court’s
earlier suggestion, she continued by explaining that the jury
instruction on derivative citizenship provided “two elements
that must be established” — (1) birth to one U.S. citizen par-
ent, who (2) met the physical presence requirement prior to
the alien’s birth — and that “the mere fact that the birth certif-
icate lists the defendant’s father as a national of the United
States does not mean that the other elements have been estab-
lished.” (Emphasis added.) The court erred in overruling San-
doval’s objections to each of these two statements.
First, there is no presumption of alienage, regardless of a
defendant’s place of birth. To the contrary, as explained
above, alienage is an element of the offense, as to which the
defendant benefits from a presumption of innocence and the
government bears the burden of proof. See Meza-Soria, 935
F.2d at 168; see also Estelle v. Williams, 425 U.S. 501, 503
(1976) (“The presumption of innocence, although not articu-
lated in the Constitution, is a basic component of a fair trial
under our system of criminal justice.”).
Second, there are no “elements” of derivative citizenship
that “must be established” by a criminal defendant, as
opposed to, for example, an applicant for a U.S. passport, see
22 C.F.R. § 51.43. The jury instruction on alienage described,
correctly, two types of “natural born United States citizen[s]”:
a person “born in the United States,” and a person who is born
to a United States citizen parent “if, before the birth of that
person, [the] United States citizen parent of that person was
physically present in the United States for ten (10) years, at
5342 UNITED STATES v. SANDOVAL-GONZALEZ
least five (5) of which were after the citizen parent reached
the age of fourteen (14).” Sandoval raised the possibility that
he fit the latter definition in an attempt to cast doubt on alien-
age.
[5] The government could have argued that its proffered
evidence overwhelmingly proved alienage, notwithstanding
the American citizenship of Sandoval’s father. Or it could
have argued that if Sandoval were actually a citizen, he proba-
bly would have fought his prior deportation proceedings on
that basis. There are many ways a prosecutor can try to con-
vince a jury that it should have no reasonable doubt about an
element of an offense, notwithstanding the defense’s attempt
to create one. What the government could not do, however,
was what it did: suggest that Sandoval bore any responsibility
for proving or “establish[ing]” his citizenship, derivative or
otherwise. The prosecutor’s statement was particularly egre-
gious because she said that the jury had “heard” of such a pre-
sumption previously. Of course, it had not — not from
counsel, not from a witness, and certainly not from the judge
when he instructed the jury minutes earlier; the prosecutor
simply misstated the record. Her closing statement, and the
district court’s rulings sustaining these comments, impermiss-
ibly shifted the burden of proof to Sandoval.
B
We must next determine whether these errors require rever-
sal. Some errors “infect the entire trial process, and necessar-
ily render a trial fundamentally unfair,” such that automatic
reversal is warranted. Neder v. United States, 527 U.S. 1, 8
(1999) (internal quotation marks and citations omitted). Most
constitutional errors, however, do not rise to that level, and
instead do not require reversal if “the court [is] able to declare
a belief that it was harmless beyond a reasonable doubt.”
Chapman v. California, 386 U.S. 18, 24 (1967); see also
United States v. Walters, 309 F.3d 589, 593 (9th Cir. 2002).
A third category of errors — non-constitutional ones — do
UNITED STATES v. SANDOVAL-GONZALEZ 5343
not require reversal if the government can show that “it is
more probable than not that the error did not materially affect
the verdict.” United States v. Morales, 108 F.3d 1031, 1040
(9th Cir. 1997) (en banc). Sandoval-Gonzalez and the govern-
ment disagree on whether we should apply the “beyond a rea-
sonable doubt” or “more probable than not” standard for
harmless error. We need not decide this issue because the
prosecutor’s burden-shifting was prejudicial under either stan-
dard.
We have considered related errors in the past; this is not the
first time a prosecutor has made a closing statement that seeks
to shift the burden of proof by proposing a legal presumption
in favor of the government. See, e.g., United States v. Segna,
555 F.2d 226, 230-232 (9th Cir. 1977) (prosecutor stated that
presumption of sanity existed after defendant had mounted an
insanity defense). The closest case to ours is United States v.
Perlaza, 439 F.3d 1149 (9th Cir. 2006). In the government’s
closing argument in that case, the prosecutor stated, “You’re
going to go back into that deliberation room and that pre-
sumption of innocence, that presumption of innocence that
these men have all been cloaked with . . . [t]hat presumption,
when you go back in the room right behind you, is going to
vanish when you start deliberating. And that’s when the pre-
sumption of guilt is going to take over you.” Id. at 1169
(emphasis altered). The court overruled the defendant’s objec-
tions, replying, “That’s proper rebuttal. Go ahead. You are all
right.” Id. at 1170 (emphasis omitted). Later on, the court
gave a curative instruction to explain that “[t]here is no such
thing as a presumption of guilt in a criminal case.” Id. We
determined that this after-the-fact remedy was “inadequate to
correct the district court’s earlier error,” which was so preju-
dicial that the government could not meet its burden to dem-
onstrate harmlessness “under either test.” Id. at 1171.
[6] This case is virtually indistinguishable. The jury in
Perlaza was told to presume guilt. Juries do not actually find
guilt, of course; they find the particular elements of the
5344 UNITED STATES v. SANDOVAL-GONZALEZ
charged offense. See Jackson v. Virginia, 443 U.S. 307, 319
(1979); In re Winship, 397 U.S. 358, 364 (1970). The “pre-
sumption of guilt” in Perlaza is thus the same as a presump-
tion that defendant committed each element of the charged
offense. And if only one element of the offense is in question,
then a presumption as to that element is just as harmful to
defendant as a presumption of “guilt.” That is what happened
here: Alienage was the sole contested issue at trial, as there
was no dispute that Sandoval reentered without permission
after having been deported, and the jury was told erroneously
that it could “presum[e]” the presence of that element because
Sandoval was born in Mexico. If the jury followed the prose-
cutor’s instruction and did presume alienage, it would have
had little choice but to convict Sandoval. See 8 U.S.C.
§ 1326(a). The presumption of alienage likely had the same
prejudicial effect as the presumption of “guilt” in Perlaza.
The prosecutor’s other false statement only made the pre-
sumption more powerful: By wrongly suggesting that Sando-
val had not met his burden of “establish[ing]” derivative
citizenship, the prosecutor undercut the only evidence Sando-
val relied upon in an attempt to cast doubt on his own alien-
age.
[7] As in Perlaza, the court’s failures to correct the prose-
cutor’s misstatements of law were reversible error under
either standard of harmlessness. Even if the standard for non-
constitutional error applied, we could not say that it is “more
likely than not” that the jury would have convicted absent the
court’s errors, notwithstanding the other evidence of alienage
the government presented, because that error negated the only
effort Sandoval made to raise a doubt about his guilt. Our
doubt that the errors were harmless is heightened by the
length of the jury’s deliberations. “Longer jury deliberations
‘weigh against a finding of harmless error because lengthy
deliberations suggest a difficult case.’ ” United States v.
Velarde-Gomez, 269 F.3d 1023, 1036 (9th Cir. 2001) (en
banc) (quoting United States v. Varoudakis, 233 F.3d 113,
126 (1st Cir. 2000)) (alterations omitted). Here, as the district
UNITED STATES v. SANDOVAL-GONZALEZ 5345
court observed, the jury “deliberated longer than the case took
to try” — twice as long, in fact — and the only contested ele-
ment of the crime was alienage.
[8] Perlaza explained how the district court could have
corrected the prosecutor’s misconduct. It could have sustained
Sandoval’s immediate objections during closing argument.
See, e.g., United States v. Cox, 633 F.2d 871, 875 (9th Cir.
1980) (affirming conviction where court sustained defen-
dant’s objection and “admonished the jurors that the defense
had no burden in a criminal case”). Or it could have issued a
curative instruction referring “specifically” to its overruling of
Sandoval’s two objections, confessing error, and “set[ting]
forth the Government’s proper burden of persuasion.” Per-
laza, 439 F.3d at 1171-1172 (emphasis omitted). But it did
not do either. Because the district court failed entirely to cor-
rect both the prosecutor’s burden-shifting presumption as to
alienage and her description of Sandoval’s burden to “estab-
lish[ ]” derivative citizenship, we are bound by Perlaza to
vacate Sandoval’s conviction. We therefore do not reach the
question of whether, by ratifying the prosecutor’s burden-
shifting statements, the district court violated Sandoval’s con-
stitutional rights as well.
III. Motion to Acquit
Finally, Sandoval challenges the denial of his motion to
acquit under Fed. R. Crim. P. 29, based on insufficiency of
the evidence. We review de novo, United States v. Tucker,
133 F.3d 1208, 1214 (9th Cir. 1998), and we affirm.
[9] “We must determine ‘whether, after viewing the evi-
dence in the light most favorable to the prosecution, any ratio-
nal trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.’ ” United States v. Mosley,
465 F.3d 412, 415 (9th Cir. 2006) (quoting Jackson, 443 U.S.
at 319). We believe that a rational trier of fact could find,
beyond a reasonable doubt, that Sandoval is an alien, notwith-
5346 UNITED STATES v. SANDOVAL-GONZALEZ
standing his father’s American citizenship. Sandoval had pre-
viously been deported twice. While not conclusive, that
Sandoval had been deported before, and that he had allowed
himself to be deported twice without asserting American citi-
zenship, is certainly probative. Moreover, he was born in
Mexico, and he had previously admitted to being a Mexican
citizen and entering the United States illegally. Although San-
doval characterizes his admission as “incredibly unreliable,”
given his confusion during the colloquy with the immigration
judge, we find that this evidence would further support a
determination that Sandoval is an alien, when viewing it in
the light most favorable to the prosecution. It is entirely possi-
ble that a “rational trier of fact” could consider the evidence
of Sandoval’s father’s citizenship, determine that Sandoval
might meet the qualifications for derivative citizenship, but
then conclude beyond a reasonable doubt that, based on his
actions and admissions, Sandoval is not actually an American
citizen. We affirm the denial of Sandoval’s motion to acquit
on this basis, and thus allow for the possibility of retrial on
remand.
CONCLUSION
In some ways, our conclusion as to Sandoval’s motion to
acquit is the complement to our harmless error analysis.
Absent the improper burden shifting, a rational juror might
well have developed a reasonable doubt about Sandoval’s
alienage based on his father’s citizenship, notwithstanding the
other evidence of alienage. Another rational juror could just
as easily view the other evidence as overcoming any possible
doubt created by the father’s citizenship. It would be reason-
able to come out either way; that is why we leave essential
questions of fact for juries to decide. We ensure that such
decisions are kept consistent with constitutional guarantees,
however, by requiring that juries be instructed to presume
only the defendant’s innocence — and nothing else — until
the government proves each element of the offense beyond a
reasonable doubt. We vacate Sandoval’s conviction and
UNITED STATES v. SANDOVAL-GONZALEZ 5347
remand to the district court for further proceedings consistent
with this opinion.
VACATED and REMANDED.