United States v. Jose Martin Barker

concurring.

I join in the per curiam opinion. However, with respect to the use of the concurrent sentence doctrine, 1 I do so reluctantly and only because the defendant did not oppose the government’s suggestion that it be applied. 2 I believe that some explanation of the reasons for my reluctance is required.

Since Benton v. Maryland, 395 U.S. 784 , 89 S.Ct. 2056 , 23 L.Ed.2d 707 (1969), the law with respect to the concurrent sentence doctrine has been in a state of confusion. In Benton , the Court held that the doctrine does not constitute a jurisdictional bar to review. Id. at 791 , 89 S.Ct. at 2060 . However, the Court said that “[t]he concurrent sentence doctrine has been widely, if somewhat haphazardly, applied in this Court’s decisions,” and that those decisions provide no “satisfactory explanation” for the existence of the doctrine. Id. at 789 , 89 S.Ct. at 2059 . 3 While the Court remarked, without deciding, that the doctrine “may have some continuing validity as a rule of judicial convenience,” id. at 791 , 89 S.Ct. at 2060 , its statement that “ ‘most criminal convictions do in fact entail adverse collateral legal consequences,’ ” id. at 790 , 89 S.Ct. at 2060 ,…

675 F.2d 1055 UNITED STATES of America, Plaintiff-Appellee, v. Jose Martin BARKER, Defendant-Appellant. No. 80-1853. United States Court of Appeals, Ninth Circuit. Argued and Submitted Sept. 10, 1981. Decided April 28, 1982. Frank Ragen, San Diego, Cal., for defendant-appellant. Robert Rose, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee. Appeal from the United States District Court for the Southern District of California. Before CHOY, Circuit Judge, KASHIWA, * Associate Judge, and REINHARDT, Circuit Judge. PER CURIAM. 1 Jose Martin Barker appeals his conviction of assault on a federal officer (Counts One and Two), deprivation of civil rights (Count Three), making false statements to the Immigration and Naturalization Service (INS) (Count Four), and perjury before a grand jury (Counts Five and Six), in violation of 18 U.S.C. §§ 111 , 242, 1001, and 1623 (1976), respectively. Barker was sentenced to one year of imprisonment on each of the six counts, the sentences to be served concurrently. On appeal, Barker argues that the district court erred in denying his motions to dismiss the indictment and to sever the perjury counts. He also urges as to count four that…

Jose Martin Barker appeals his conviction of assault on a federal officer (Counts One and Two), deprivation of civil rights (Count Three), making false statements to the Immigration and Naturalization Service (INS) (Count Four), and perjury before a grand jury (Counts Five and Six), in violation of *1057 18 U.S.C. §§ 111 , 242, 1001, and 1623 (1976), respectively. Barker was sentenced to one year of imprisonment on each of the six counts, the sentences to be served concurrently. On appeal, Barker argues that the district court erred in denying his motions to dismiss the indictment and to sever the perjury counts. He also urges as to count four that the denials contained in the affidavit alleged to be false did not constitute a “false statement,” or relate to a matter within the jurisdiction of the INS, for purposes of 18 U.S.C. § 1001 .

In late 1979, the INS launched an investigation in response to numerous allegations of civil rights violations occurring at the Border Patrol Checkpoint at San Clemente, California. Agents Javier Dibene and Juan Espinal participated in the investigation conducted by the INS Office of Professional Responsibility.

Operating undercover, Dibene and…