UNITED STATES of America, Plaintiff-Appellee, v. Carlos Jesus MARGUET-PILLADO, Defendant-Appellant.
No. 10-50041.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted June 6, 2011. Filed Aug. 12, 2011.
648 F.3d 1001
Nor can the majority’s reasoning be saved by analogy to the Second Circuit’s decision in Nnebe v. Daus, 644 F.3d 147 (2d Cir. 2011). See Maj. op. at 995 n. 9. The plaintiffs in Nnebe stated a plausible due process violation because they alleged that the Taxi and Limousine Commission applied a standard to them that was inconsistent with state law. See 644 F.3d at 150-51, 153-54. In this case, by contrast, Debs and O’Donoghue have not alleged that the Civil Service Commission applied a standard inconsistent with the Civil Service Rules. Moreover, in concluding that “a hearing that does nothing more than confirm the driver’s identity and the existence of a pending criminal proceeding” might not be adequate process, the Second Circuit expressly relied on three “crucial” facts that indicated that the balancing test of Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976), might tip in favor of the plaintiffs: taxi drivers are not government employees; “the misconduct that results in summary suspension” did not need to be “related to the cab driver’s work“; and the “summary suspension policy is triggered even by a warrantless arrest.” Id. at 162. None of those facts pertains here: deputy sheriffs are government employees; felony charges, by their very nature, affect the work of deputy sheriffs; and the suspension policy in this case is triggered only by the filing of criminal charges. Thus, the reasoning of Nnebe is inapposite.
In sum, because Debs and O’Donoghue could not allege that they had a constitutionally protected interest in being paid while felony charges were pending against them, they did not “state a claim to relief that is plausible on its face.” Iqbal, 129 S.Ct. at 1949 (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955) (internal quotation marks omitted). I therefore dissent from Section II.B of the majority opinion, and would not reach the issue of qualified immunity discussed in Section III.B.
Gregory Thomas Murphy, Janet Tung, Vincent James Brunkow, and Devin Burstein, Federal Defenders of San Diego, Inc., for the defendant-appellant.
Before: BETTY B. FLETCHER and N. RANDY SMITH, Circuit Judges, and JAMES S. GWIN, District Judge.*
Opinion by Judge GWIN; Dissent by Judge N.R. SMITH.
OPINION
GWIN, District Judge:
Defendant-Appellant Carlos Marguet-Pillado (“Marguet-Pillado“) appeals his conviction for being a previously-removed alien found in the United States, in violation of
Defendant-Appellant Carlos Marguet-Pillado was born in Tijuana, Mexico, in 1968 to Juana Pillado, a Mexican citizen, and an unknown biological father. Marguet-Pillado’s birth certificate, obtained in 1973, lists United States citizen Michael Marguet as his father. The parties do not contest, however, that Michael Marguet was Defendant-Appellant Marguet-Pillado’s step-father, not his biological father. In 1973, Defendant-Appellant Marguet-Pillado and his mother entered the United States; his mother entered on a K-1 fiancée visa and the Defendant-Appellant entered on a K-2 visa. In late 1973, in Marguet-Pillado’s “Application for Status as Permanent Resident,” Michael Marguet listed Marguet-Pillado as his son, although he disclosed to the Immigration Examiner that he and Marguet-Pillado were not biologically related. In January 1974, Defendant-Appellant Marguet-Pillado became a lawful permanent resident and continued to reside in the United States. United States v. Marguet-Pillado (Marguet I), 560 F.3d 1078, 1080 (9th Cir.2009).
In 1994, Marguet-Pillado was convicted of second-degree burglary, in violation of
On September 22, 2006, Marguet-Pillado was removed from the United States. During his removal proceedings, Marguet-Pillado claimed that he had acquired derivative United States citizenship from his step-father. The presiding immigration judge rejected this argument and ordered that Marguet-Pillado be removed from the United States. Shortly thereafter, Marguet-Pillado returned to the United States without inspection. On October 20, 2006 he was arrested on an outstanding warrant in Chula Vista, California.
On November 28, 2006, Marguet-Pillado was indicted on one count of being a removed alien found in the United States, in violation of
Marguet-Pillado filed a waiver of jury trial and was tried by the district judge. For that non-jury trial, the government and Marguet-Pillado stipulated that he had been removed on September 22, 2006, after an immigration judge rejected his claim of derivative citizenship, and that he had reentered the United States without express consent. At the conclusion of the bench trial, the district court found Marguet-Pillado guilty and sentenced him to fifty-one months’ imprisonment followed by a three-year term of supervised release.
Marguet-Pillado appealed his conviction, arguing that the acquisition of derivative citizenship did not require a biological relationship to a United States citizen parent and that the district court erred in admitting certain hearsay evidence. A panel of this Court reversed the conviction due to the admission of inadmissible hearsay evidence. Marguet I, 560 F.3d at 1087. However, the panel rejected Marguet-Pillado’s derivative citizenship argument, holding that an individual cannot obtain derivative citizenship from a non-biological parent. Id. at 1084.
In its trial brief, the government similarly stated that should Marguet-Pillado raise the possibility of derivative citizenship, “the government will ask this court to take judicial notice of its own docket and appellate authority establishing [that] the basis of his derivative citizenship claim was foreclosed by prior court rulings.” On that issue, prior to trial the government filed a formal motion in limine “to exclude any reference to any claim of derivative citizenship,” arguing that “[s]ince this court and the Ninth Circuit held that defendant’s derivative citizenship was legally insufficient, defendant should be precluded from offering any evidence asserting derivative citizenship before the jury.” The district court granted the motion, finding that the material was not relevant because the Ninth Circuit already ruled that Marguet-Pillado could not claim derivative citizenship based upon his relationship to Michael Marguet, his step-father.
Most directly relevant to this appeal, Marguet-Pillado argues that the district court incorrectly rejected a proposed jury instruction on the alienage element of
A person is a natural-born United States citizen if that person was born in the United States. A person born outside the United States is also a natural-born citizen of the United States if, before the person’s birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen.
The government argued that this Court’s earlier opinion precluded Marguet-Pillado from arguing to the jury that he might be a citizen and that he was, therefore, not entitled to the proposed supplemental instruction.
On his part, Marguet-Pillado made two related arguments in support of the instruction. First, he argued that this instruction merely required that the government prove that he was an alien—that is, it simply allocated the burden of proof to the correct party. Second, he argued that the law of the case doctrine did not apply because a criminal defendant is entitled to have the jury decide whether the government proved all of the elements of the
The district court rejected Marguet-Pillado’s arguments, largely on the grounds that the law of the case doctrine precluded an instruction about derivative citizenship.
The trial commenced on November 4, 2009, and the jury returned a guilty verdict on the next day. On January 25, 2010, the district court sentenced Marguet-Pillado to fifty-one months’ imprisonment, followed by a three-year term of supervised release. On January 28, 2010, Marguet-Pillado filed his notice of appeal. In the current appeal, Marguet-Pillado principally argues that the district court erred in refusing to give the jury his requested instruction, which explained when an individual is a natural-born United States citizen through derivative citizenship.
II. Standard of Review
“A criminal defendant has a constitutional right to have the jury instructed according to his theory of the case,” United States v. Johnson, 459 F.3d 990, 993 (9th Cir.2006), provided that the requested instruction “is supported by law and has some foundation in the evidence,” United States v. Bello-Bahena, 411 F.3d 1083, 1088-89 (9th Cir.2005) (citation omitted). Whether an instruction “is supported by law” is reviewed de novo. See United States v. Castagana, 604 F.3d 1160, 1163 n. 2 (9th Cir.2010). Whether it “has some foundation in the evidence” is reviewed for an abuse of discretion. See United States v. Daane, 475 F.3d 1114, 1119 (9th Cir. 2007); Bello-Bahena, 411 F.3d at 1089. The district court’s failure to give a defendant’s requested instruction that is supported by law and has some foundation in the evidence “warrants per se reversal,” Bello-Bahena, 411 F.3d at 1091 n. 6, unless “other instructions, in their entirety, adequately cover that defense theory,” United States v. Thomas, 612 F.3d 1107, 1120 (9th Cir.2010) (citation and quotation marks omitted).
The district court had jurisdiction over this action under
III. Analysis
The Court must decide whether the district court erred in rejecting Marguet-Pillado’s instruction regarding derivative citizenship. As previously noted, a criminal defendant has the right to have the jury instructed according to his theory of the case so long as that instruction is (1) supported by the law and (2) has some foundation in the evidence. Bello-Bahena, 411 F.3d at 1088-89.
No one disputes that Marguet-Pillado’s requested instruction was “an accurate statement of the law,” in that it correctly stated the two circumstances in which an individual born in 1968 is a natural-born United States citizen: (1) that the person was born in the United States or (2) born outside the United States to a biologically-related United States citizen parent who met certain residency requirements. Nonetheless, the government asserts that the requested instruction “was not supported by the law” because “[t]he issue of Marguet-Pillado’s claim of derivative citi-
The district court accepted this argument and grounded its decision in the notion that the requested instruction was precluded by the law of the case doctrine.1 Because Marguet-Pillado’s claim of derivative citizenship was definitively decided in Marguet I, the district court believed that the jury could not find there was a reasonable doubt as to Marguet-Pillado’s alienage based on his relationship to Michael Marguet, and therefore, that the court could not give an instruction facilitating that conclusion. In other words, the district court seemed to think that the jury could not reach a conclusion that conflicted with the law of the case.
We are mindful of the difficult position that the district court was in when deciding whether to issue instructions related to derivative citizenship in light of our decision in Marguet I. Nonetheless, the district court erred when it ruled that the requested instruction was precluded as a matter of law.
Reliance upon the law of the case doctrine in this context was mistaken. The use of such a doctrine potentially leads to a number of unconstitutional results, including violating Marguet-Pillado’s right to confront witnesses and his right to have a jury decide whether the government has proven the elements of a crime beyond a reasonable doubt. Although there is no clear precedent in this Circuit as to the applicability of the law of the case doctrine in the criminal context, we previously held that offensive collateral estoppel could not be used to prove facts or elements against a criminal defendant. Indeed, “[i]n federal criminal trials, the United States may not use collateral estoppel to establish, as a matter of law, an element of an offense or to conclusively rebut an affirmative defense on which the government bears the burden of proof beyond a reasonable doubt.” United States v. Arnett, 353 F.3d 765, 766 (9th Cir.2003) (en banc) (per curiam); Smith-Baltiher, 424 F.3d at 920.
Although the context is slightly different, the logic of Smith-Baltiher and Arnett also applies to the current case. See also United States v. Gallardo-Mendez, 150 F.3d 1240, 1244 (10th Cir.1998) (“[W]hile ‘wise public policy and judicial efficiency’ may be sufficient reasons to apply collateral estoppel in civil cases, they do not have the same weight and value in criminal cases.“) (citation omitted); United States v. Pelullo, 14 F.3d 881, 897 (3d Cir.1994) (holding that defendant’s prior conviction following jury trial for wire
Because Marguet-Pillado’s proposed instruction was supported by the law, the district court was required to give that instruction to the jury so long as it had “some foundation in the evidence.” Bello-Bahena, 411 F.3d at 1088-89. The jury received evidence that Michael Marguet was listed on Marguet-Pillado’s birth cer-
tificate as his father, that Michael Marguet was a United States citizen, that Michael Marguet had lived and worked in the United States for some time prior to Marguet-Pillado’s birth, and that Marguet-Pillado was born near the United States border. This evidence is sufficient to establish a foundation in the evidence that Marguet-Pillado was not an alien because he had derived citizenship. See Bello-Bahena, 411 F.3d at 1091 (“[A] defendant is entitled to an instruction concerning his theory of the case if the theory is legally sound and evidence in the case makes it applicable, even if that evidence is weak, insufficient, inconsistent, or of doubtful credibility.” (quoting United States v. Washington, 819 F.2d 221, 225 (9th Cir.1987) (alteration in original))).
Indeed, we reached the conclusion that Marguet-Pillado was an alien in the first appeal because Marguet-Pillado admitted that Michael Marguet was not his biological father on his appeal. Appellant’s Opening Brief, Marguet I, 2008 WL 6796023 (Sept. 10, 2008). On the basis of those facts, Marguet I held that Marguet-Pillado was not entitled to derivative citizenship. But that earlier guilty verdict has been vacated and, as Marguet-Pillado argued to the district court, he did not stipulate to the lack of a biological relationship in the second trial. See also United States v. James, 987 F.2d 648, 651 (9th Cir.1993) (stipulation as to element of crime could not be taken into account when it was “never entered into evidence or read to the jury“). Indeed, in Marguet
Fundamentally, the result of accepting the government’s argument would be to impair Marguet-Pillado’s right to have the jury decide whether the government has proven all of the elements of the crime, including that he is, in fact, an alien. Of course, the jury should be instructed as to the proper law regarding derivative citizenship, but the determination the government has proven that he is not a derivative citizen—including whether he has a biological relationship to Michael Marguet—is ultimately a factual question that only the jury can decide. See United States v. Meza-Soria, 935 F.2d 166, 169 (9th Cir. 1991) (“If, as we have stated, alienage is an element of the crime, then it is an ineluctable conclusion that the government must prove that element beyond a reasonable doubt—due process demands no less.“); United States v. Jones, 248 F.3d 671, 675 (7th Cir.2001) (“In all criminal cases, the government must prove each element, even those that the defendant does not specifically contest, beyond a reasonable doubt to convict a defendant.” (citation omitted)).3
We also now find that the district court’s error in rejecting the requested instruction warrants reversal of this case for a new trial. Where a jury instruction is supported by the law and has some foundation in the evidence, a district court’s decision to reject that instruction must be reversed unless the “other instructions, in their entirety, adequately cover that defense theory.” Thomas, 612 F.3d at 1120 (citation and quotation marks omitted). Here, we reverse because the other jury instructions do not at all take into account this theory of defense since none of them mention the possibility of derivative citizenship.
Further, and as we recently explained in Sandoval-Gonzalez, any error having the effect of shifting the burden to the defendant to prove that he is not an alien is prejudicial. 642 F.3d at 724-27. The district court’s jury instruction on the alienage element inappropriately relieved the government of its burden of proving that Marguet-Pillado was not a United States citizen. Although we previously rejected Marguet-Pillado’s theory of derivative citizenship, the government still was constitu-
IV. Conclusion
Because the district court erred in rejecting Defendant-Appellant Marguet-Pillado’s proposed jury instruction and because we find that error prejudicial, we REVERSE and REMAND for a new trial.5
N.R. SMITH, Circuit Judge, dissenting:
I cannot understand why the majority opinion fails to follow a decision of the Ninth Circuit without asking for a sua sponte en banc proceeding. While Marguet-Pillado is entitled to have a jury determine whether he is an alien, he is not entitled to a jury instruction contrary to the law propounded by our circuit in United States v. Marguet-Pillado, 560 F.3d 1078 (9th Cir.2009) (Marguet I). Therefore, I must dissent.
To get a conviction here, the government was required to prove that Marguet-Pillado was an alien, defined as “any person not a citizen or national of the United States.” See
that the Ninth Circuit’s prior decision precluded him from arguing that he had derivative citizenship, Marguet-Pillado asked the district court to include a jury instruction on derivative citizenship. The district court refused the instruction, instead concluding that the issue had been conclusively determined by the Ninth Circuit in Marguet-Pillado I and the jury instruction was contrary to the law of the case. The district court then instructed the jury that “[a]n alien is a person who is not a natural-born or naturalized citizen or national of the United States.” The jury found Marguet-Pillado guilty.
The district court did not err in holding that the law of the case precluded instructing the jury on derivative citizenship. In Marguet-Pillado I, we clearly and explicitly held that Marguet-Pillado “does not have derivative citizenship.” 560 F.3d at 1087. Further, as a matter of law, an individual born out of wedlock must have a biological relationship with a U.S. citizen parent in order to claim derivative citizenship. Id. at 1083-84. Marguet-Pillado “did not have a blood relationship to Michael Marguet.” Id. at 1084. The decision, moreover, did not indicate that this legal issue was to be relitigated on remand.
The law of the case doctrine exists to ensure “that when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618, 103 S.Ct. 1382,
Contrary to the majority’s decision, there is no basis for holding that applying the law of the case would result in a “manifest injustice.” See Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir.1997) (en banc) overruled on other grounds by Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). In his first trial, Marguet-Pillado chose to base his defense on the assertion that he was legiti-
mated under California law and therefore entitled to derivative citizenship based on his relationship to his stepfather Michael Marguet.2 He continued that strategy on his first appeal. We did not “swallow” that theory. As a result, but for the evidentiary error, Marguet-Pillado’s conviction would have been affirmed on that theory and the facts he chose to assert. That his defense was ineffective is not grounds for disregarding the decision of the previous panel in Marguet-Pillado I.
The majority may be correct that the evidence in the second trial was “substantially different” from the first. However, that does not justify avoiding the law of the case. First, the evidence had to be different, because we had held that one document was improperly admitted hearsay and remanded for a new trial on that basis. Marguet-Pillado I, 560 F.3d at 1086. Second, the evidence was different because, in accordance with the law of the case, the government had no need to prove that Michael Marguet could not give derivative citizenship to Marguet-Pillado. We had held that that was not possible. At the second trial, the jury saw that Marguet-Pillado was born in Mexico, was granted a non-immigrant visa to enter the country in 1973, and received legal permanent resident status in 1974. The jury also saw
Moreover, refusing such an instruction does not prevent Marguet-Pillado from challenging the sufficiency of the evidence of his alienage or relieve the government from its burden of proof on that element of the offense. Our prior decision aptly illustrates this distinction. Although we held that Marguet-Pillado could not claim derivative citizenship through Michael Marguet, we nonetheless remanded the case, because improperly admitted hearsay evidence was part of the government’s proof of alienage. Id. at 1087. Such an approach is also in keeping with our decision in Sandoval-Gonzalez:
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.... [T]he government advanced sufficient 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 disprove each requirement for derivative citizenship in an effort to eliminate all doubt—for example, by producing the defendants’ parents’ own immigration or residency records—but it need not do so.
Sandoval-Gonzalez, 642 F.3d at 724.
Because Marguet-Pillado’s claim of derivative citizenship through Michael Mar-guet was properly foreclosed by the law of the case, I respectfully dissent.
IN DEFENSE OF ANIMALS; Dreamcatcher Wild Horse and Burro Sanctuary; Barbara Clarke; Chad Hanson; Linda Hay, Plaintiffs-Appellants,
v.
UNITED STATES DEPARTMENT OF the INTERIOR; Bureau of Land Management; Ken Salazar, Secretary of the U.S. Department of the Interior; Robert Abbey, Director of the Bureau of Land Management; Ken Collum, Acting Field Manager of Eagle Lake Field Office, Defendants-Appellees.
No. 10-16715.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted Jan. 11, 2011.
Filed Aug. 15, 2011.
Rachel Fazio, Cedar Ridge, CA, for plaintiffs-appellants In Defense of Animals, et al.
David C. Shilton, Washington, D.C., for defendants-appellees Kenneth L. Salazar, Secretary of the Interior, et al.