Castillo-Basa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50768 Plaintiff-Appellee, v.  D.C. No.

CR-05-00734-JAH

BUENAVENTURA CASTILLO-BASA,

OPINION

Defendant-Appellant.  Appeal from the United States District Court for the Southern District of California John A. Houston, District Judge, Presiding

Argued and Submitted June 9, 2006—Pasadena, California

Filed February 26, 2007

Before: Stephen Reinhardt, Stephen S. Trott, and Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt; Dissent by Judge Trott

2091 2094 UNITED STATES v. CASTILLO-BASA

COUNSEL

Michael Edmund Burke, San Diego, California, for the defendant-appellant.

Valerie H. Chu, Assistant United States Attorney, San Diego, California, for the plaintiff-appellee.

OPINION

REINHARDT, Circuit Judge:

I

This case presents an important question that cuts to the heart of the Double Jeopardy Clause. It involves the right of a defendant to be free from repeated prosecutions in which the government retries him until it obtains a guilty verdict. The government was unable to convict Castillo-Basa the first…

I

This case presents an important question that cuts to the heart of the Double Jeopardy Clause. It involves the right of a defendant to be free from repeated prosecutions in which the government retries him until it obtains a guilty verdict. The government was unable to convict Castillo-Basa the first time it tried him, for illegal reentry, in large part because its counsel failed to locate and present a crucial tape recording that was within its possession. To its surprise, the jury acquitted him. Now, having “found” the tape, the government seeks to prosecute Castillo-Basa again, this time for perjury committed in connection with the illegal reentry trial. The central issue at the second trial would be the same as it was at the first: was Castillo-Basa afforded a deportation hearing at which he was present?

The Double Jeopardy Clause requires the government to put on its strongest case the first time; it forbids it to conduct a series of prosecutions, involving the same fundamental issues, in which it presents additional arguments and evidence at each iteration. Here, the government has already had its chance to prove that Castillo-Basa had a deportation hearing and that his…

dissenting:

United States v. Grayson, 438 U.S. 41, 54 , 98 S.Ct. 2610 , 57 L.Ed.2d 582 (1978).

United States v. Havens, 446 U.S. 620, 626 , 100 S.Ct. 1912 , 64 L.Ed.2d 559 (1980).

*1041 In this case, we must decide whether the doctrine of collateral estoppel precludes the government from prosecuting Buena-ventura Castillo-Basa for perjury arising from what appears to be a material lie under oath he gave in an earlier trial, where a jury acquitted him of the crime of being a deported alien found in the United States. The government alleges that Castillo-Basa testified falsely in that prior trial when he insisted that he never attended the deportation hearing that resulted in his physical removal from the United States. I conclude from the record that Castillo-Basa has not carried his burden of showing that the precise question of his nonessential attendance at the deportation hearing was “necessarily decided” by the jury in his previous trial, and therefore conclude — as did the trial judge — that collateral estoppel does not bar the government from prosecuting Castillo-Basa for perjury.

I

In June 2004, Buenaventura Castillo-Basa 1 was indicted for being a deported alien found…