Gonzalez-Marichal

I concur in the majority’s holding that the district court did not abuse its discretion by allowing the police officer to testify. I dissent, however, from its conclusion that the district judge properly exercised his discretion in deviating from the law of the case when he refused to give a cautionary jury instruction regarding witness Fernando Garcia-Rodriguez’s testimony at defendant’s second trial. As the majority acknowledges, such a deviation is permissible where, inter alia, giving the instruction at the first trial constituted clear error. United States v. Alexander, 106 F.3d 874, 876 (9th Cir.1997). Although it is not entirely clear that the instruction should have been given at the first trial, doing so did not constitute clear error because Garcia-Rodriguez twice testified that the government was not prosecuting him for illegal reentry, and his pending civil suit against the defendant would be furthered if the defendant were found guilty at the criminal trial. The giving of such a cautionary instruction under these circumstances finds some support in our case law. See, e.g., Territory of Guam v. Dela Rosa, 644 F.2d 1257, 1259 (9th Cir.1980) (“[Cjourts have long…

MEMORANDUM **

Jesus Gonzalez-Marichal appeals his conviction for transporting illegal aliens causing serious bodily injury in violation of 8 U.S.C. § 1324 (a)(l)(A)(ii), (a)(l)(A)(v)(II), and (a)(l)(B)(iii), and for bringing in illegal aliens for financial gain in violation of 8 U.S.C. § 1324 (a)(2)(B)(ii). We affirm.

The district court properly exercised its discretion to deviate from the law of the case during Gonzalez-Marichal’s second trial when it withdrew a jury instruction because it lacked evidentiary support. Although the law of the case doctrine ordinarily precludes a court from reexamining a legal issue previously decided, a court properly exercises its discretion when it reconsiders a prior ruling that is clearly erroneous. See United States v. Alexander, 106 F.3d 874, 877 (9th Cir. 1997). Because there was no evidence that witness Fernando Garcia-Rodriguez received any benefit from the government in exchange for his testimony, the district court did not err in withdrawing a cautionary instruction concerning his credibility. Compare United States v. Hoyos, 573 F.2d 1111, 1116 (9th Cir.1978) (holding that district court did not err in denying cautionary instruction…