United States v. Juan Galvez-Guerrero

concurring in part and dissenting in part.

I concur in the majority’s holdings that the district court erred in refusing to give the requested instruction regarding the meaning of “residency,” and that the district court did not err in denying Galvez’s Rule 29 motion for a judgment of acquittal. However, I disagree that the district court erred in refusing to give the requested instruction regarding “marriage” in order to explain the meaning of “out-of-wedlock,” because I believe that the term “out-of-wedlock” was understandable and clear without further definition.

The district court instructed that “a person born abroad out of wedlock to a U.S. citizen mother, after 1952, is automatically a U.S. citizen at birth if the mother was physically present in the United States continuously for 12 months prior to the child’s birth.... ” The court declined to further instruct the jury that “[i]n considering whether the government has proven beyond a reasonable doubt that Mr. Galvez is not a citizen you may consider that marriage in Mexico requires civil formalities. A religious marriage ceremony or a common law marriage alone does not result in a valid marriage.”

The defense’s theory…

MEMORANDUM **

Juan Galvez-Guerrero (“Galvez”), who was born in Mexico, appeals his conviction for being a previously-deported alien found in the United States'without authorization, in violation of 8 U.S.C. § 1326 (a). Galvez maintained during his trial that the Government could not prove the element of alienage because he had, in fact, derived citizenship from his mother (Rosario), who had, in turn, derived citizenship from her father (Melchor), who unquestionably was a native-born U.S. citizen. Galvez argues that the district court erred in refusing two requested jury instructions: the first defined “residency” and was relevant to Galvez’s contention that Rosario derived citizenship from Melchor; and the other concerned the requirements of a legal marriage in Mexico and was relevant to whether Galvez derived citizenship from Rosario. Galvez also challenges the district court’s denial of his Rule 29 motion for a judgment of acquittal, asserting that no rational jury could find sufficient evidence of *751 alienage. We reject Galvez’s second contention, but reverse and remand for a new trial on the first.

1. “A criminal defendant has a constitutional right to have the jury…

FILED

NOT FOR PUBLICATION OCT 26 2011

MOLLY C. DWYER, CLERK

UNITED STATES COURT OF APPEALS U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA, No. 10-50520

Plaintiff - Appellee, D.C. No. 3:10-cr-02023-JLS-

v.

MEMORANDUM*

JUAN MARTIN GALVEZ-GUERRERO,

Defendant - Appellant.

Appeal from the United States District Court for the Southern District of California Janis L. Sammartino, District Judge, Presiding

Argued and Submitted August 5, 2011 Pasadena, California

Before: WARDLAW and BERZON, Circuit Judges, and WHYTE, Senior District Judge.**

Juan Galvez-Guerrero (“Galvez”), who was born in Mexico, appeals his

conviction for being a previously-deported alien found in the United States without

authorization, in violation of 8 U.S.C. § 1326(a). Galvez maintained during his

* This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3. ** The Honorable Ronald M. Whyte, Senior District Judge for the U.S. District Court for Northern California, San Jose, sitting by designation. trial that the Government could not…