United States v. Buenaventura Castillo-Basa

ORDER AMENDING OPINION AND AMENDED OPINION

ORDER

The opinion filed February 26, 2007, is hereby amended. The following sentence at 478 F.3d 1033 is deleted:

The following sentence is substituted therefor:

With this amendment, Judges Reinhardt and Wardlaw vote to deny the petition for rehearing; Judge Trott votes to grant the petition for rehearing. General order 5.4(b) now applies.

OPINION

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…

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).

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 in…

483 F.3d 890 UNITED STATES of America, Plaintiff-Appellee, v. Buenaventura CASTILLO-BASA, Defendant-Appellant. No. 05-50768. United States Court of Appeals, Ninth Circuit. Argued and Submitted June 9, 2006. Filed February 26, 2007. Amended April 24, 2007. Michael Edmund Burke, San Diego, CA, for the defendant-appellant. Valerie H. Chu, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee. Appeal from the United States District Court for the Southern District of California; John A. Houston, District Judge, Presiding. D.C. No. CR-05-00734-JAH. Before STEPHEN REINHARDT, STEPHEN S. TROTT, and KIM McLANE WARDLAW, Circuit Judges. ORDER AMENDING OPINION AND AMENDED OPINION REINHARDT, Circuit Judge. ORDER 1 The opinion filed February 26, 2007, is hereby amended. The following sentence at 478 F.3d 1033 is deleted: 2 To prove previous deportation — the third element and the only one in dispute at Castillo-Basa's trial — the government must establish, as the district court instructed the jury, "[(1)] that a deportation proceeding occurred as to [the] defendant and as a result, [(2)] a warrant of deportation was issued and [(3)] executed by the removal of…