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United States v. Benvie.

No. 20-2147.  D.N.M. Judge Kelly. Impersonating a Government Employee—Response to Jury Inquiry—Adequate Explanation for Special Conditions—Plain Error—Conflict Between Oral Order and Written Sentencing Order.

November 15, 2021


Defendant belonged to a group known as the United Constitutional Patriots (UCP). The UCP camped along a stretch of the US/Mexico border along the eastern edge of New Mexico. Its goal was to capture individuals whom the UCP contended were illegally crossing the border. Defendant filmed several of these efforts and posted the videos to Facebook. In the first incident, defendant approached a group and yelled “alto” and “U.S. Border Patrol.” As the UCP interrogated the group, a Border Patrol agent arrived and took the individuals into custody. In the second incident, the accosted group initially ignored defendant until he yelled “Border Patrol.” Another UCP member ordered the individuals to sit, which they did until Border Patrol arrived to take them into custody.

Defendant was charged with two counts of impersonating a government employee. During deliberations, the jury sent a note asking whether “U.S. Border Patrol” and “Border Patrol” carried the same weight under the definition of the law. Over the defense’s objection, the district court responded that the terms were synonymous. The jury returned a guilty verdict on both counts. At sentencing, the court imposed five special conditions of supervised release. The written order then imposed drug testing as a mandatory condition of supervised release, which was not in the oral pronouncement.

Defendant argued on appeal that the district court erred in instructing the jury that “U.S. Border Patrol” and “Border Patrol” are synonymous. However, there was no factual dispute at trial about the meaning of these terms, which were used interchangeably to refer to the federal agency. Further, the impersonation statute does not require a defendant to use the term “U.S.” or “federal” to be convicted. Therefore, the district court did not err.

Defendant also argued that the various special conditions of supervised release were imposed without adequate explanation at sentencing. Here, the district court did not explain its reasoning for the conditions or ensure that its reasoning was supported by the record. Therefore, it clearly erred.

Defendant also challenged the mandatory drug testing condition contained in the written judgment. Here, the district court erred by failing to check the box that would have suspended that condition and conformed the judgment and commitment order to the oral sentence.

The conviction was affirmed and the case was remanded for resentencing.

Official US Court of Appeals for the Tenth Circuit proceedings can be found at the US Court of Appeals for the Tenth Circuit website.

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