United States v. Castillo-Basa

further testified that he had never come CALLAHAN, Circuit Judge, with whom before an immigration judge and that he O’SCANNLAIN, KLEINFELD, did not see representative of the TALLMAN, BEA, Circuit Judges, May, INS until agent when the took him join, dissenting from the denial of from his cell to the Mexican border. rehearing en banc: I respectfully from our dissent denial of majority recites was rehearing en banc I because read pan- instructed, prove that to previous deporta- el majority essence, holding, that, if a tion, government “(1) must establish criminal lies to defendant persua- that a deportation occurred as to the de- sively, the government cannot prosecute and, (2) result, fendant as a warrant him for my opinion, this is issued, was executed contrary Court precedent and by the removal of the defendant from the prior opinions. our Moreover, it allows a (internal United States.” Id. at 898 punc- fundamental constitutional principle-—-that modified). tuation theory defense a person may not twice placed be jeop- that, in order to deported, be an alien must ardy for the same offense—to be used be brought before an immigration judge vehicle for protecting perjury. and that Castillo-Basa placed was never I. front judge. aof Id. at 894. The district court agree. rejected did It Castillo- government indicted Castillo-Basa Basa’s proposed jury being instruction previously deported alien found required United States prove violation of § U.S.C. appeared 1326. United States v. before Basa, (9th Cir.2007). 483 F.3d 894-95, addition, 910. In when the Through discovery, Castillo-Basa learned jury specifically asked if a defendant had and the appealed, Castillo-Basa judge, of a in front present to be district court majority reversed “no,” but responded court district in- the dismissal directed whether “consider jury could immigra- before the dictment. a or not deciding whether judge tion II. actually occurred proceeding deportation jury The Id. at 910. defendant.” to the of is majority’s grant relief panel The reen- illegal the of Castillo-Basa of both interpretation a strained based on Id. at 895. try offense. Supreme Court facts. The and the the law judg a prior to applied located trial, the the After in Ashe v. Swen a case ment in criminal de- recording of Castillo-Basa’s tape the 1189, 443, 436, 25 son, 397 majority opinion The hearing. portation (1970). there was a L.Ed.2d 469 recounts: en six men underlying incident: single Judge Immigration recording, On of in the basement game poker in a gaged of indi- the names recited Williams John four by three or robbed a home were deportation have a to who were viduals shotgun and a armed with masked men name day; Castillo-Basa’s hearing 437, Ashe S.Ct. 1189. Id. at 90 pistols. An individual those listed. among was poker of the robbing one tried for was name “Buenaventura responded 439, S.Ct. 90 acquitted. and players had and admitted Castillo-Basa” tried for he was later 1189. Six weeks in December a crime convicted been poker participant another robbing re- by the provided details 439-40, 90 Id. and convicted. game, regarding individual sponding aside Court set S.Ct. of- of the conviction, the date such as conviction, noting: Ashe’s served, of time the amount and fense any indi- utterly devoid of the record of Castillo- details correlate rationally jury could the first cation that history. criminal Basa’s robbery had that an armed have found Id. occurred, Knight not had or that not 2005, jury indicted grand April On robbery. sin- a victim been on two counts of Castillo-Basa dis- issue in rationally conceivable gle decla- submitting false him with charging jury was whether pute before testifying falsely and with ration of the been robbers. had one .petitioner a motion filed Castillo-Basa oath. Id. he found that by its verdict jury And dou- on the basis the indictment dismiss had not. Id. estoppel. and collateral jeopardy ble case, the In our S.Ct. 1189. motion, con- court denied The district determine whether jury was instructed “veracity with cluding Castillo-Basa’s deportation had proved the Government a de- had attended to whether regard doubt, not whether beyond reasonable necessarily been hearing had portation actually appeared before had Castillo-Basa “Castil- and that first trial” decided an advantage of taken had unfair lo-Basa manipu- majority Nonetheless, panel tape inability to locate government’s effort facts an law and the testimony lates both the giving perjured recording by to Castillo- apply collateral policy public violated and, doing, in so had majority prosecution. integrity adversely affected States United noting, that since starts judicial process.” (9th 572 F.2d Cir. in the first trial must have decided 1978), applied we have through Ashe that Castillo-Basa was telling truth three-step process: when he testified. “The at Castillo-

(1) Basa’s trial necessarily An identification of decided the issues in the issue of whether two for the Castillo-Basa purpose actions determin- afforded a ing hearing whether the issues are which he sufficiently pres- ent. It similar also sufficiently material in decided that both statements were justify doctrine; actions to false.” invoking the Basa, (2) This examination determination record is simply wrong case to decide matter of whether the law and fact, and improper raises “litigated” case; bar against the first perjury prosecutions whenever examination of the record defendants testify and are at proceeding to trial. ascertain whether the is- sue was decided in the first Although Castillo-Basa testified that he case. was not present at deportation hear- ing, a determination of his However, veracity was not panel majority fails ad- “essential to the judgment.” The trial here to the proper definition of the critical judge rejected Castillo-Basa’s request for third prong the issue was nec- —“whether a jury instruction that would have essarily made decided in the first action.” The presence his deportation at the hearing an Supreme Court Ashe explained that for (a element of the crime decision that is not this prong: questioned by majority) specifical- and previous Where a judgment acquittal ly told jury it did not have to upon general verdict, based as is determine whether ap- Castillo-Basa had usually case, this approach requires peared before a court to examine the of a prior record Moreover, 910. Castillo-Basa offered proceeding, taking into account arguments that deportation hearing had evidence, pleadings, charge, and other occurred, even outside presence, matter, relevant and conclude whether a including: rational jury could grounded have its 1. No fingerprint or photograph on the upon verdict an issue other than that deportation order; which the defendant seeks to foreclose 2. government’s The failure to from call the consideration. Immigration Judge witness; (internal U.S. at 90 S.Ct. 1189 government’s 3. The failure omitted). quotation In accordance with the “master list” from the proceedings, Ashe, Hernandez, we stressed that col- which should have included Castillo- lateral estoppel only applies where “an Basa’s if name he had deported; been issue of fact law” is “actually litigated 4. The absence of a tape and recording or determined” and the “determination is transcript of the deportation proceed- essential the judgment.” 572 F.2d at ings; 220. objective application of this stan-

dard supports the 5. The district failure to produce court’s denial of detention rec- ords; Castillo-Basa’s motion to and the in- dismiss dictment. 6. The persons “fact” that deporta- tion hearings give often false names. majority, however, by focus- ing on what jury Castillo-Basa, wanted the 483 F.3d at 907. These to decide instead of what flaws in government’s case-in-chief are decide, instructed to concludes that the more than sufficient to show that Castillo- Ashe v. cedes, to extend decline we “necessarily decid- veracity was collateral-estoppel F.2d Swenson first case.” ed Jeopardy of the Double component could juror Indeed, reasonable circumstances, in all to exclude Clause of these one have determined it, relevant would have factors, Dowling of these factors, aor combination ad- that is otherwise probative evidence as to whether doubt reasonable raised a of Evidence the Rules words, missible In other occurred. had alleged crim- it relates to simply because its grounded have could “a rational which a defendant inal conduct than issue other upon verdict acquitted. been to foreclose seeks the defendant which here, consideration.” Similarly from 110 S.Ct. first case acquittal Castillo-Basa’s issue” an ultimate “did not determine III. charges raised criteria revision of majority’s “a was whether the first case a collateral application as to occurred deportation proceeding contrary also Castillo-Basa, defendant.” [the] Dowling in of the bar refinement Court’s by Cas- issue raised ultimate 342, States, 110 S.Ct. 493 U.S. v. United is indictment tillo-Basa’s (1990). Dowling, 668, 708 107 L.Ed.2d that he when he testified he lied whether its lan- emphasized Supreme the immi- an appear before physically not did an issue that “when in Ashe guage in the first the judge. Since gration by determined once been ultimate the instructed specifically trial was fact can- issue judgment, that and final a valid have to prove not government did the same litigated between again be not hear- at the presence 347, lawsuit.” in future parties testimo- 910, Castillo-Basa’s ing, see id. at Ashe, 397 U.S. (quoting 668 110 S.Ct. concern not did ny that he was added). 1189) Al- 443, (emphasis “ultimate issue.” an very is Dowling in the situation though IV. bar, the the situation from different by con- prompted is instructive. is language Finally, my dissent Court’s Supreme consequences practical wrote: The Court cerns system Our decision. majority’s panel the that, the same by Dowling contends telling the on individuals heavily relies acquittal precluded prior principle, Nonetheless, where truth under into oath.1 introducing from the Government lying acquittal an secures defendant at the third testimony Henry’s evidence crime, Double an element dis- about robbery We case. trial bank bars Jeopardy Clause because, situation unlike the agree for retry the seeking to from Swenson, acquittal did Ashe v. the defen- prosecuting first offense ultimate issue not determine majority’s ap- But the perjury.2 dant for Dowling eon- much This present case. egregious of- type against this restraints 425 U.S. Mandujano, 1. See United States imperative.’’) 1768, fense are therefore 564, 576, L.Ed.2d 212 S.Ct. 48 ("In process of se- constitutional this in his Judge statement Trott’s simply agree testimony, perjury I with curing a witness’ charge based were perjury testimony “that if the Perjured dissent place has no whatever. testimony the effect [Castillo-Basa’s] on the basic flagrant affront an obvious and deported,’ collateral was 'not proceedings. Effective concepts judicial proach expands perjury exemption, this position in Dowling Ashe and and our reit- undermining thus one of the critical means eration in Hernandez that collateral estop- ensuring testimony. for truthful If a de- pel applies only when “the issue was nec- fendant cannot be tried perjury, what essarily decided in the first case.” 572 motive does have to tell the truth? If F.2d at 220. In light panel majori- convicted, he lies and is he has risked ty’s facts, interpretation strained of the little, but if gains acquittal, he lies and may reasonable reader conclude that well according panel majority, long as as panel majority created a new standard. issue, the lie is an underlying relevant to I would create such a standard nor charged he could not be with impose interpretation panel ma- panel majority’s attempt uncouple jority’s opinion on the district courts. bar from the ulti- mate issues the cases is no mere techni- Following opinion Court’s cality as a defendant has little motivation 397 U.S. S.Ct. to lie unless he or she thinks that the lie is that, we L.Ed.2d held for collateral somehow related to the pending charges. estoppel to bar a subsequent prosecution Collateral estoppel only should prose- perjury action, in a criminal the defen- perjury cution for that addressed ulti- dant had to show that issue that was mate the first trial. subject of the perjury “was Despite majority’s assertion to decided in the first case.” contrary, I opinion fear its will be read F.2d at 220. For quarter over a of a creating “a against se bar per century, we have adhered to this standard. prosecutions involving defendants who tes- We should have taken this case en banc to tify and are trial.” Castillo- correct the majority’s expansion of Basa, 483 F.3d 905. The opinion states: this standard and manipulation of the When an acquitting jury has not neces- facts, and to re-emphasize that the collat- sarily actually question decided the eral estoppel only applies the Su- —as veracity, defendant’s or a material is- preme stated —when a rational sue sufficiently similar prose- to one the jury could not “have grounded its verdict cution must prospective establish upon an issue other than that which the second proceeding, collateral defendant seeks to foreclose from consid- does not bar a trial for per- eration.” 397 U.S. at jury- Id. Although this sentence starts with the implication that a must “necessarily” issue,

have decided the its clauses are con-

nected with the word “or.” Accordingly, may sentence be read as providing

that, if the first decided “a material

issue similar sufficiently prose- to one the

cution must establish in the prospective proceeding,”

second collateral estoppel prosecution

bars aBut new

standard for based on

“a material similar,” sufficiently

would conflict Court’s

might Castillo-Basa, apply.” 483 F.3d at

Case Details

Case Name: United States v. Castillo-Basa

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Jul 23, 2007

Citation: 494 F.3d 1217

Docket Number: 05-50768

Court Abbreviation: 9th Cir.