U.S. v. Ibarra

• Decision Date: 02 September 1993
• Docket Number: No. 92-10463,92-10463
• Parties: 39 Fed. R. Evid. Serv. 517 UNITED STATES of America, Plaintiff-Appellee, v. Reyes Emilio IBARRA, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1333

3 F.3d 1333

39 Fed. R. Evid. Serv. 517

UNITED STATES of America, Plaintiff-Appellee, v. Reyes Emilio IBARRA, Defendant-Appellant.

No. 92-10463.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Jan. 15, 1993.

Decided Sept. 2, 1993.

Harriet M. Zeitzer, Linda C. Boone, argued by Asst. U.S. Attys., Phoenix, AZ, for plaintiff-appellee.

Robert J. McWhirter, Asst. Federal Public Defender, Phoenix, AZ, for defendant-appellant.

Appeal from the United States District Court for the District of Arizona.

Before: SCHROEDER and BRUNETTI, Circuit Judges, and KING, ^* District Judge.

BRUNETTI, Circuit Judge:

Reyes Emilio Ibarra appeals his conviction for violating 8 U.S.C. Sec. 1326(b)(1), illegal reentry into the United States after having been previously deported. On appeal, Ibarra contends that the district court erred in precluding him from introducing evidence on the issue of alienage; that the district court should have allowed him to collaterally attack the legality of his prior deportation before the jury; and, that a mistrial should be granted because of improper comments by the prosecution during closing argument. We find that none of these objections have merit and affirm the judgment of conviction.

I. DISCUSSION

The elements of the crime of illegally reentering the United States after prior deportation under 8 U.S.C. Sec. 1326 ¹ include: "(1) the defendant is an alien; (2) he was arrested and deported or excluded and deported; and (3) thereafter, he improperly entered, or attempted to enter, the United States." United States v. Meza-Soria, 935 F.2d 166, 168 (9th Cir.1991). We have also held that in order to convict a defendant for a violation of Sec. 1326, the prior deportation must have been "lawful." United States v. Gasca-Kraft, 522 F.2d 149, 152 (9th Cir.1975) ("the Government must prove beyond a reasonable doubt that the defendant 'illegally entered the United States after being deported according to law.' ").

A. Alienage

In United States v. Meza-Soria, 935 F.2d at 169, we held that the government must prove alienage beyond a reasonable doubt and that the factual findings in a prior deportation proceeding, where the burden of proof is "clear and convincing," do not establish the alienage element of a Sec. 1326 offense. ² We also held that a defendant is "entitled to put the government to its burden of proof on the issue of alienage" by introducing evidence that he or she is not an alien. Id. at 170.

Ibarra argues that the district court erred in granting the government's motion in limine precluding him from introducing evidence of his prior legal status in the United States, and the citizenship of his wife, mother ³ and children. The district court held the this evidence was irrelevant because it did not go to show that Ibarra was an American citizen. Ibarra contends that this evidence could have raised a reasonable doubt as to his alienage and that he was entitled to present it under Meza-Soria.

While Meza-Soria establishes a defendant's right to contest the alienage element at trial, it does not give the defendant the right to introduce irrelevant evidence. Here, the evidence offered by Ibarra was not probative of his alienage which was established by the government by way of a Mexican birth certificate. A defendant can present evidence to rebut the government's showing of alienage but the defendant must at least make an offer of proof and have probative evidence to establish a triable issue of alienage before the evidence can be presented to the jury. We hold that on the facts of this case, the district court did not err in finding that the evidence Ibarra sought to introduce was irrelevant.

B. Legality of Prior Deportation

Before trial, the district court granted the government's motion in limine to preclude Ibarra from introducing evidence regarding the validity of his prior deportation. Ibarra argues that lawful deportation is an element of the offense which the government must prove beyond a reasonable doubt and that evidence regarding the validity of his prior deportation should have gone to the jury. The government argues that the lawfulness of the prior deportation is a legal question for the court to decide prior to trial.

It is clear that the legality of a prior deportation can be collaterally attacked prior to trial. See United States v. Mendoza-Lopez, 481 U.S. 828, 837-38, 107 S.Ct. 2148, 2154-55, 95 L.Ed.2d 772 (1987); United States v. Nicholas-Armenta, 763 F.2d 1089, 1090 (9th Cir.1985). It is less clear when a defendant must be allowed to present evidence regarding the legality of a prior deportation to the jury. There are two Ninth Circuit cases on point.

In United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir.), cert. denied, 449 U.S. 864, 101 S.Ct. 170, 66 L.Ed.2d 81 (1980), the defendant was charged with violating Sec. 1326. The district court conducted a pretrial hearing regarding the legality of the defendant's prior deportation and found that it was valid because the Government's admitted violation of 8 C.F.R. Sec. 242.2(e) (requiring that an arrested alien be advised of the right to speak with consul of his or her country) had not prejudiced Hernandez. At trial, the district court did not permit Hernandez to cross-examine a government witness about the Sec. 242.2(e) violation on the ground that such questioning was irrelevant. Hernandez argued that the questioning was necessary to disprove the fact of deportation. We stated:

Because the legality of Hernandez's underlying conviction was ruled not in issue at trial, it was proper to exclude evidence to prove the illegality of the deportation.... The district court did not abuse its discretion in excluding this evidence as irrelevant. Proof that the INS violated Sec. 242.2(e) does not tend to make any less probable the objective fact whether Hernandez was deported. See Fed.R.Evid. 401. Even if relevant, the district court could have reasonably concluded that any probative value was outweighed by possible confusion to the jury.

For the same reason, Hernandez's contention that the district court erred in refusing to allow him to introduce rebuttal evidence concerning the legality of the prior deportation is without merit.

Id. at 535 (emphasis added).

In United States v. Bejar-Matrecios, 618 F.2d 81 (9th Cir.1980), the defendant was also charged with violating Sec. 1326. Bejar did not collaterally attack the validity of his prior deportation prior to trial but sought to cross-examine a government witness before the jury regarding whether immigration regulations required that an arrested alien be advised of the right to speak with consul of his or her country. The district court sustained the government's objection to this line of questioning on the ground that it was "a matter of law which the court could instruct." On appeal, we stated:

Although not wholly clear from the record, it appears that Bejar wished to pursue this line of questioning in order to show that the prior deportation was unlawful. Testimony by the government witness about whether the Service had complied with Sec. 242.2(e) was directly relevant to the issue of the legality of the prior deportation. Compare United States v. Hernandez-Rojas, 617 F.2d 533 (9th Cir.1980). (Evidence concerning the non-compliance with agency regulations could not be offered to challenge the fact of the prior deportation when the trial court had previously considered the lack of compliance and ruled it non-prejudicial.) By restricting Bejar's cross-examination in this area, the district court prevented Bejar from making an effective defense of a Sec. 1326 charge.

Id. at 82-83 (emphasis added).

Thus, a defendant must be allowed to present evidence regarding the legality of a prior deportation to the jury where the issue has not been previously determined and there are factual issues (such as "whether the Service had complied" with the regulations) which need to be established. Id. However, where the district court has previously determined that the prior deportation was valid, such evidence can be excluded on the ground that it is irrelevant or would...