U.S. v. Barragan-Cepeda

• Decision Date: 12 July 1994
• Docket Number: No. 93-50642,BARRAGAN-CEPED,D,93-50642
• Citation: 29 F.3d 1378
• Parties: 39 Fed. R. Evid. Serv. 1189 UNITED STATES of America, Plaintiff-Appellee, v. Joseefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1378

29 F.3d 1378

39 Fed. R. Evid. Serv. 1189

UNITED STATES of America, Plaintiff-Appellee, v. Jose BARRAGAN-CEPEDA, Defendant-Appellant.

No. 93-50642.

United States Court of Appeals Ninth Circuit.

Argued and Submitted June 6, 1994.

Decided July 12, 1994.

Karen Sue Berg, Asst. Federal Public Defender, San Diego, CA, for defendant-appellant.

Thomas W. McNamara, Asst. U.S. Atty., San Diego, CA, for plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California.

Before: FLETCHER, CANBY, and HALL, Circuit Judges.

CANBY, Circuit Judge:

Jose Barragan-Cepeda was charged as a deported alien who reentered the United States in violation of 8 U.S.C. Sec. 1326. Following the district court's denial of his motion to dismiss on the ground of double jeopardy, Barragan brings an interlocutory appeal. We reverse.

I. BACKGROUND

In April of 1993, the government indicted Barragan alleging that he was an alien who reentered the United States after deportation in violation of 8 U.S.C. Sec. 1326. Barragan moved to dismiss the indictment because it subjected him to double jeopardy. The basis of his motion was as follows: In 1980, Barragan was indicted, tried and acquitted of a violation of Sec. 1326 and two other offenses. Each of the 1980 offenses required the government to establish that Barragan was an alien. The 1980 acquittals, he alleges, were based on the fact that the jury found him to be an American citizen. Although the present charge is based on his April 9, 1993 reentry into the United States, Barragan argues that the government is barred from relitigating a key element, i.e., his alienage.

As proof that his alienage was litigated and decided in the 1980 proceeding, Barragan introduced affidavits from two people who served as jurors in the 1980 trial. The district court ruled that the introduction of these affidavits was improper under Fed.R.Evid. 606(b) and apparently declined to consider them. Barragan also introduced an affidavit from his 1980 defense counsel and a stipulation that was filed prior to trial in the 1980 proceeding.

The district court denied Barragan's motion, ruling that Barragan had failed to establish that his alienage was necessarily decided in the 1980 proceeding. Barragan now appeals both the conclusion that the juror affidavits were inadmissible and the finding that he failed to prove that the alienage issue was necessarily decided.

II. JUROR AFFIDAVITS

As a preliminary matter, we must decide whether the affidavits by jurors in the 1980 proceeding may properly be considered in the collateral estoppel inquiry. The district court ruled, and the government argues, that Rule 606(b) bars the admission of the juror affidavits to determine whether collateral estoppel applies in this case.

The full text of Rule 606(b) is as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

(Emphasis added). The opening clause of this rule is clear. Rule 606(b) bars the admission of juror testimony only upon an inquiry into "the validity of a verdict." It does not limit the admissibility of juror affidavits to determine what issues were decided in a prior proceeding. By proffering jury affidavits regarding the 1980 verdict, Barragan has not sought to impeach that verdict. Quite the contrary, he is attempting to rely upon that verdict. Thus, the district court erred in ruling that the juror affidavits were inadmissible under Rule 606(b).

III. APPLICATION OF COLLATERAL ESTOPPEL

We must now determine whether these affidavits and the additional evidence put forth by Barragan entitle him to collateral estoppel on the alienage issue.

"[W]hen an issue of ultimate fact has once been determined by a valid and final judgment, that issue cannot again be litigated between the same parties in any future lawsuit." Ashe v. Swenson, 397 U.S. 436, 443, 90 S.Ct. 1189, 1194, 25 L.Ed.2d 469 (1970). This principle, collateral estoppel, is embodied in the Fifth Amendment's proscription against double jeopardy. Id. at 445, 90 S.Ct. at 1195. In determining whether collateral estoppel applies, we must determine: first, whether the issues are sufficiently similar; second, whether the issue was fully litigated in the first action; and, third, whether the issue was necessarily decided in that action. United States v. Crooks, 804 F.2d 1441, 1446 (9th Cir.1986).

Both in this case and in the 1980 prosecution, the government alleged that Barragan was an alien who reentered the United States after a prior deportation in violation of 8 U.S.C. Sec. 1326. The elements of this offense are undisputed. The defendant must be an alien; he must have been deported; and he must have thereafter reentered the United States without permission. United States v. Meza-Soria, 935 F.2d 166, 168 (9th Cir.1991). Barragan argues that the government may not relitigate the first element, whether he is an alien.

Two of the Crooks requirements for collateral estoppel are met; the issues are identical and they were actually litigated. The only issue is whether alienage was "necessarily decided" in 1980. To decide this question, Ashe counsels this court to

examine the record of a prior proceeding, taking into account the pleadings, evidence, charge, and other relevant matter, and conclude whether a rational jury could have grounded its verdict upon an issue other than that which the defendant seeks to foreclose from consideration. The inquiry must be set in a practical frame and viewed with an eye to all the circumstances of the proceedings.

397 U.S. at 444, 90 S.Ct. at 1194 (citations omitted).

Due to the age of the earlier proceeding, the record is not available. However, Barragan introduced the following evidence: a stipulation in the 19...