Castillo-Basa

Order; Dissent by

ORDER

An active judge sua sponte called for rehearing en banc. The matter failed to receive a majority of the votes of the non-recused active judges in favor of en banc consideration. Fed. R.App. P. 35(b).

The sua sponte call for rehearing en banc is rejected.

join, dissenting from the denial of rehearing en banc:

I respectfully dissent from our denial of rehearing en banc because I read the panel majority as holding, in essence, that, if a criminal defendant lies to a jury persuasively, the government cannot prosecute him for perjury. In my opinion, this is contrary to Supreme Court precedent and our prior opinions. Moreover, it allows a fundamental constitutional principle- — -that a person may not be twice placed in jeopardy for the same offense — to be used as a vehicle for protecting perjury.

I.

The government indicted Castillo-Basa for being a previously deported alien found in the United States in violation of 8 U.S.C. § 1326 . United States v. Castillo-Basa, 483 F.3d 890, 894 (9th Cir.2007). Through discovery, Castillo-Basa learned of the existence of an audio tape of his deportation hearing, and that the government could not locate this tape. Id.

Castillo-Basa then moved to dismiss the indictment claiming that there was no pri- or deportation. In support of his motion, he filed a sworn declaration stating that “[pjrior to May 2, 1996, I never appeared before an immigration judge” and “prior to May 2, 1996, I was never given…

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50768 Plaintiff-Appellee, D.C. No. v. CR-05-00734-JAH BUENAVENTURA CASTILLO-BASA,  Southern District Defendant-Appellant. of California, San Diego

 ORDER

Filed July 24, 2007

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

Order; Dissent by Judge Callahan

ORDER

An active judge sua sponte called for rehearing en banc. The matter failed to receive a majority of the votes of the non- recused active judges in favor of en banc consideration. Fed. R. App. P. 35(b).

The sua sponte call for rehearing en banc is rejected.

CALLAHAN, Circuit Judge, with whom O’SCANNLAIN, KLEINFELD, TALLMAN, and BEA, Circuit Judges, join, dissenting from the denial of rehearing en banc:

I respectfully dissent from our denial of rehearing en banc because I read the panel majority as holding, in essence, that, 8919 8920 UNITED STATES v. CASTILLO-BASA if a criminal defendant lies to a jury persuasively, the govern- ment cannot prosecute him for perjury. In my…