FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, 

No. 04-50519 Plaintiff-Appellee,

D.C. No.

v.  CR-03-02234-IEG

ROBERTO LEAL-CRUZ,

OPINION Defendant-Appellant. 

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

Argued and Submitted

September 15, 2005—Pasadena, California

Filed December 9, 2005

Before: J. Clifford Wallace, Barry G. Silverman,

and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Callahan

16133
COUNSEL

Roseline D. Feral, San Diego, California, for the defendantappellant. 

Assistant United States Attorney David P. Curnow, San

Diego, California, filed the brief, and Assistant United States

Attorney Kevin Mulcahy, San Diego, California, argued the

cause for the plaintiff-appellee. 

OPINION

CALLAHAN, Circuit Judge: 

Roberto Leal-Cruz appeals his conviction for attempted

illegal reentry into the United States after deportation, under

UNITED STATES v. LEAL-CRUZ 16135
8 U.S.C. § 1326. Leal-Cruz contends that the district court

erred by instructing the jury that he had the burden of proving

his duress defense. We have jurisdiction to review appellant’s

conviction pursuant to 28 U.S.C. § 1291 and we affirm. 

I

Roberto Leal-Cruz, a citizen of Mexico, attempted to reenter the United States on July 12, 2003. Around 1:00 a.m., he

was observed by United States border patrol agents in Calexico, California, climbing over the 15 to 20 foot international

boundary fence separating the United States from Mexico. A

border patrol agent chased Leal-Cruz for two blocks in the

United States before he surrendered. 

Leal-Cruz testified that about two weeks earlier, Mexican

police officers beat him up and left him for dead. The same

police officers spotted him on the date of his attempted reentry, when he was pumping gas on the Mexican side of the border. When he saw the police officers, Leal-Cruz ran

approximately three blocks to the international boundary

fence. After jumping the fence and seeing United States border patrol officers, he retreated back up the fence and sat on

top of it, not wanting to be captured inside of the United

States. The Mexican police appeared at that time and, because

he feared for his life, Leal-Cruz jumped to the American side

of the fence and ran, hoping to avoid being apprehended by

the United States agents. After a brief foot chase, he surrendered. 

The district court concluded that although the evidence

presented at trial warranted a duress instruction, the act of

crossing the international boundary fence into the United

States did not negate the specific intent element of attempted

illegal reentry and therefore could only be offered to excuse

Leal-Cruz’s criminal conduct. The district court instructed the

jury with Ninth Circuit Model Criminal Jury Instruction 6.6,

16136 UNITED STATES v. LEAL-CRUZ
which placed the burden on Leal-Cruz to prove duress by a

preponderance of the evidence.1

II

[1] As a preliminary matter, we must decide whether LealCruz waived his right to challenge the jury instruction under

the invited error doctrine. United States v. Perez, 116 F.3d

840, 845 (9th Cir. 1997) (en banc), holds that an error is

waived and unreviewable when a defendant both invites the

error and affirmatively relinquishes or abandons a known

right. A challenge to a jury instruction is waived under the

invited error doctrine when, in spite of being aware of the

applicable law, the defendant accepts a flawed instruction. Id.

Perez requires that counsel’s conduct rise to the level of an

affirmative relinquishment of the right to challenge the

instruction on appeal. Id. We hold here that the instruction is

reviewable because Leal-Cruz did not affirmatively abandon

or relinquish his challenge to the instruction. 

[2] At the final jury instruction conference, defense counsel

asked that the instruction be supplemented to explain that if

the defendant established duress by a preponderance of the

1The given instruction read: 

The defendant must prove duress by a preponderance of the evidence. A preponderance of the evidence means that you must be

persuaded that the things the defendant seeks to prove are more

probably true than not true. A defendant acts under duress only

if at the time of the crime charged: 

1. there was an immediate threat of death or serious bodily injury

to the defendant if the defendant did not commit the crime; 

2. the defendant had a well-grounded fear that the threat of death

or serious bodily injury would be carried out; and 

3. the defendant had no reasonable opportunity to escape the

threatened harm. 

If you find that each of these things has been proved by a preponderance of the evidence, your verdict should be for the defendant.

UNITED STATES v. LEAL-CRUZ 16137
evidence, then the burden shifted to the government to disprove duress beyond a reasonable doubt. Counsel specifically

requested that language from Model Instruction 6.5 (requiring

the prosecution to prove absence of duress) be included in the

given instruction. Although defense counsel did not formally

object when the judge disagreed with her request to supplement Model Instruction 6.6 with language from Model

Instruction 6.5, counsel nevertheless disagreed with what the

court concluded was the applicable law. Despite counsel’s

failure to articulate clearly her position at the final jury

instruction conference, we conclude that her failure to object

formally to the given instruction does not rise to the level of

an affirmative relinquishment or abandonment of Leal-Cruz’s

right to challenge the instruction on appeal. Therefore, LealCruz did not waive his challenge to the jury instruction under

the invited error doctrine. 

III

Whether Leal-Cruz has the burden of proving his duress

defense is a question of law, and is therefore reviewed de

novo. United States v. Martinez-Martinez, 369 F.3d 1076,

1083 (9th Cir. 2004); United States v. Meraz-Solomon, 3 F.3d

298, 299 (9th Cir. 1993) (per curiam). 

[3] In In re Winship, the Supreme Court held that “the Due

Process Clause protects the accused against conviction except

upon proof beyond a reasonable doubt of every fact necessary

to constitute the crime with which he is charged.” 397 U.S.

358, 364 (1970). Since that case, the Court has struggled with

the proper extent to which legislatures may define the elements of crimes and shift the burden of proof to the defendant. The cases that follow establish two core principles:

Legislatures retain broad leeway in defining elements of

crimes and the requisite mens rea. However, once a government has established the applicable elements it must prove

each of them beyond a reasonable doubt and may not lessen

its responsibility by shifting the burden of persuasion to the

16138 UNITED STATES v. LEAL-CRUZ
defendant on any issue which negates an element the government is required to prove. 

In the first major post-Winship burden shifting case, the

Court held that Maine had impermissibly lessened its burden

of proof by shifting the burden to the defendant to prove “heat

of passion” in order to reduce murder to manslaughter. Mullaney v. Wilbur, 421 U.S. 684, 697-01 (1975). Maine had

retained the common law definition of murder whereby “malice aforethought is an essential and indispensable element of

the crime of murder.” Id. at 686. There, the Maine Supreme

Judicial Court had held that “malice aforethought and heat of

passion on sudden provocation are two inconsistent things.”

Id. at 686-87. Thus, the Court stated that “by proving the latter the defendant would negate the former and reduce the

homicide from murder to manslaughter.” Id. at 687. The

Court held that by requiring the defendant to negate an element on which the state had the burden of proof, Maine had

impermissibly lessened its burden under Winship and therefore reversed Mullaney’s conviction. Id. at 700-01. 

Shortly after Mullaney, the Court reached the opposite

result in Patterson v. New York, 432 U.S. 197 (1977). New

York had created a defense of “extreme emotional disturbance” which would reduce murder to manslaughter and

shifted the burden of proof to the defendant on that defense.

Id. at 198-99. Unlike Maine, however, New York also had

adopted a differing definition of murder which had two elements: (1) intent to cause the death of another person and (2)

causing the death of such person or of a third person. Id. at

198 (quotations, punctuation, and citation omitted). The Court

distinguished Mullaney because while in that case “malice,

i.e., lack of provocation, was presumed and could be rebutted

by the defendant only by proving by a preponderance of evidence that he acted with heat of passion upon sudden provocation,” under New York law “nothing was presumed or

implied against Patterson.” Id. at 216. The key distinction thus

appears to be that proof of “extreme emotional disturbance”

UNITED STATES v. LEAL-CRUZ 16139
did not disprove or negate the required intent—the “intent to

cause the death of another person.” New York was therefore

free to create a mitigation defense and place the burden on the

defendant to prove the defense by a preponderance of the evidence. The Court concluded that “[t]he Due Process Clause

. . . does not put New York to the choice of abandoning those

defenses [which place the burden on the defendant] or undertaking to disprove their existence in order to convict of a

crime which otherwise is within its constitutional powers to

sanction by substantial punishment.” Id. at 207-08. 

The Court later upheld shifting the burden of persuasion on

self-defense in Martin v. Ohio, 480 U.S. 228 (1987). In that

case, the Court again appeared to endorse the same “negate

the required elements test” when it stated “[w]e are thus not

moved by assertions that the elements of aggravated murder

and self defense overlap in the sense that evidence to prove

the latter will often tend to negate the former.” Id. at 234. 

These principles have been reaffirmed by the Supreme

Court. Most recently, in Apprendi v. New Jersey, the Court

suggested a similar “negation” test with its discussion of Mullaney and Patterson when it stated that “New York, unlike

Maine, had not made malice aforethought, or any described

mens rea, part of its statutory definition of second-degree

murder . . . .” 530 U.S. 466, 485 n.12 (2000). 

[4] From these cases we conclude that the Due Process

Clause forbids shifting the burden of proof to the defendant

on an issue only where establishing the defense would necessarily negate an element that the prosecution must prove

beyond a reasonable doubt under Winship. We are also mindful that legislatures must be given flexibility in defining the

operative elements of a crime and the requisite mens rea for

each element. With this framework in mind, we turn to the

applicable Ninth Circuit precedents that are relevant to this

appeal. 

16140 UNITED STATES v. LEAL-CRUZ
[5] Our own precedents have held that when a defense

negates the element of a crime, it is unconstitutional to place

the burden of proving the defense on the defendant. United

States v. Hernandez-Franco, 189 F.3d 1151, 1157 (9th Cir.

1999) (citing Walker v. Endell, 850 F.2d 470, 472 (9th Cir.

1987)). The defense of duress, however, does not necessarily

negate the intent required to commit a specific intent offense.

Id. at 1158 (citing United States v. Fei Lin, 139 F.3d 1303,

1307 (9th Cir. 1998)). Attempted illegal reentry is a specific

intent crime. United States v. Gracidas-Ulibarry, 231 F.3d

1188, 1196 (9th Cir. 2000) (en banc) (defining the mens rea

element of attempted illegal reentry as “[having] the purpose,

i.e., conscious desire, to reenter the United States without the

express consent of the Attorney General”). Accordingly, we

must decide whether the duress asserted by Leal-Cruz negated

the specific intent element of attempted illegal reentry, the

position advanced by Leal-Cruz, or whether it could only be

offered to excuse his criminal conduct. Guided by circuit precedent, we hold that Leal-Cruz’s duress defense could only be

offered to excuse the offense. 

In Fei Lin, we determined that duress does not negate the

mens rea element of hostage taking or making ransom

demands. In so doing, we relied on Walker v. Endell, 850 F.2d

470 (9th Cir. 1987), which explained that duress does not

negate the specific intent element of kidnapping because “a

defendant can restrain another with the intent to inflict injury,

in the sense that he knows that his actions will lead to injury

or that his purpose is to cause injury, but act in this manner

in order to comply with the demands of another.” Id. at 473.

Applying this line of reasoning, we held that duress no more

negated the element of intent in Fei Lin than the specific

intent element of kidnapping in Walker. Fei Lin, 139 F.3d

1308. 

Later, in Hernandez-Franco, we held that a duress defense

did not negate the specific intent elements of attempt to transport illegal aliens into the United States. 189 F.3d at 1158.

UNITED STATES v. LEAL-CRUZ 16141
Hernandez-Franco’s defense was that he was forced at gunpoint to drive the truck in which aliens were found. Adopting

the Fei Lin reasoning, the court concluded that “[a]ppellant

could intend to drive a truck with undocumented aliens to further their illegal presence in the United States, but act in that

manner because someone had a gun to his head.” Id. 

Leal-Cruz attempts to distinguish Hernandez-Franco, arguing that the intent element is greater for attempted illegal

reentry than for attempted transportation of illegal aliens, and

so, although duress may not negate the mens rea required for

attempted transportation of illegal aliens, it does negate the

mens rea element of attempted illegal reentry. We are not persuaded. As recognized in Hernandez-Franco, the attempt to

transport illegal aliens is a specific intent crime because (1) it

is an attempt crime, and (2) the statute requires a showing of

specific intent to further the alien’s illegal presence in the

United States. 189 F.3d at 1158. Even though we have

defined the specific intent element of attempted illegal reentry

as having the “purpose” or “conscious desire” to reenter the

United States unlawfully, we do not view this language as

establishing a mens rea different from the specific intent

required for attempted transportation of illegal aliens. 

Most recently, in United States v. Solorzano-Rivera, 368

F.3d 1073, 1080-81 (9th Cir. 2004), we decided that duress

did not negate the voluntariness of illegal reentry into the

United States—a general intent offense. Like Leal-Cruz,

Solorzano-Rivera presented a duress defense based on the

need to flee from abusive Mexican police officers. Id. at 1076.

Solorzano-Rivera argued that the burden was on the government to prove absence of duress because his duress negated

the voluntariness of his act. Id. at 1080. This court disagreed,

concluding that his entry into the United States was voluntary

and his defense therefore could not be offered to negate an

element of the offense, but rather only to excuse the criminal

conduct. Id. at 1081. 

16142 UNITED STATES v. LEAL-CRUZ
The Solorzano-Rivera court provided examples of involuntary entries into the United States: An individual extradited to

the United States against his will, or paroled into the country

by proper authorities; or one who is sleeping on a train that

unexpectedly enters the country, or traveling on a plane that

makes an emergency landing in the country. Id. at 1080 (citing United States v. Quintana-Torres, 235 F.3d 1197, 1200

(9th Cir. 2000)). The court distinguished Solorzano-Rivera’s

conduct from the volitional conduct described in these examples, and concluded that jumping the international boundary

fence to escape Mexican police officers was a voluntary act.

Id. at 1080-81. 

[6] For the same reason that Solorzano-Rivera’s conduct

was voluntary, and the conduct of Hernandez-Franco, Fei Lin

and Walker was intentional, Leal-Cruz’s conduct was purposeful. Leal-Cruz intended to enter the United States without

the express consent of the Attorney General. He had the “conscious desire” to enter the country, even if the act of crossing

the border was done to escape harm. Therefore, Leal-Cruz

had the burden of proving his duress defense, instead of the

government being required to prove absence of duress. 

Our holding makes particular sense when we consider that

the difference between a reentry into the United States and an

attempted reentry into the United States—when an alien is

apprehended in this country after jumping the international

boundary fence—is whether the alien is free from official

restraint. See United States v. Pacheco-Medina, 212 F.3d

1162 (9th Cir. 2000) (reversing a conviction for illegal reentry

into the United States because after jumping the international

boundary fence, the defendant was under constant and close

surveillance by United States agents). It would not make

sense to shift the burden of proving duress to the government

merely because Leal-Cruz was never free from official

restraint. 

UNITED STATES v. LEAL-CRUZ 16143
IV

[7] We conclude that Leal-Cruz’s reason for jumping the

international boundary fence did not negate the specific intent

element of attempted illegal reentry but rather could only be

offered as a legal excuse for committing the offense. Accordingly, the district court properly instructed the jury and LealCruz’s conviction is AFFIRMED. 

16144 UNITED STATES v. LEAL-CRUZ