U.S. v. Meza-Soria

• Decision Date: 04 June 1991
• Docket Number: MEZA-SORI,No. 90-10417,D,90-10417
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Oscarefendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 166

935 F.2d 166

UNITED STATES of America, Plaintiff-Appellee, v. Oscar MEZA-SORIA, Defendant-Appellant.

No. 90-10417.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 13, 1991.

Decided June 4, 1991.

Bram L. Jacobson, Asst. Fed. Public Defender, Phoenix, Ariz., for defendant-appellant.

Linda C. Boone, Asst. U.S. Atty., Phoenix, Ariz., for plaintiff-appellee.

Appeal from the United States District Court for the District of Arizona (Phoenix).

Before FARRIS, BOOCHEVER and FERNANDEZ, Circuit Judges.

FERNANDEZ, Circuit Judge:

Oscar Meza-Soria (Meza-Soria) was indicted for violating 8 U.S.C. Sec. 1326 by being an alien who reentered the country after having been deported. His first trial ended in a mistrial, which was granted over his opposition. When the government sought to retry him, he moved to dismiss on double jeopardy grounds. He asserted that the grant of the mistrial was based on the district court's erroneous view of the law, and that, as a result, no further prosecution was permissible. The district court denied his motion and he appealed. We reverse.

BACKGROUND

Meza-Soria entered the United States on March 20, 1990. He was arrested at the port of entry because he had previously been deported, and, as it appeared, had not applied for reentry to this country.

This prosecution under 8 U.S.C. Sec. 1326 followed, and his first trial commenced on July 10, 1990. After the jury was sworn and the government had put on its case in chief, Meza-Soria began the defense. That defense was based upon his claim that he was not an alien. The government objected to that line of defense, but the district court admitted evidence from Meza-Soria's father which tended to show that Meza-Soria was a United States citizen rather than an alien.

Thereafter, the district court determined that evidence regarding citizenship should not have been admitted, because the prior deportation proceedings had established Meza-Soria's alienage and that issue could not be explored in the criminal proceeding. Having reached that conclusion, the district court then decided that the prior admission of evidence of citizenship and the other proceedings on that point that had occurred before the jury would result in such prejudice to the government that a mistrial must be granted. The court then granted a mistrial over Meza-Soria's objection.

A new trial date was set, and on August 14, 1990, Meza-Soria's motion to dismiss the prosecution on double jeopardy grounds was denied. This appeal followed.

JURISDICTION AND STANDARD OF REVIEW

The district court had jurisdiction pursuant to 18 U.S.C. Sec. 3231. We have jurisdiction pursuant to 28 U.S.C. Sec. 1291 and Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977).

We review the district court's denial of a motion to dismiss an indictment on double jeopardy grounds de novo. United States v. Bates, 917 F.2d 388, 392 (9th Cir.1990). Similarly, we review issues of statutory construction de novo. United

States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

DISCUSSION

While this case comes before us in the posture of a double jeopardy question, it truly presents issues involving statutory construction, and procedural rights of defendants which are mandated by the Constitution. More particularly, in resolving this case we must address the following issues: what is the proper construction of 8 U.S.C. Sec. 1326; and is a defendant collaterally estopped or otherwise precluded from contesting each element of the offense in this kind of prosecution. If we determine that the district court erred in its resolution of those issues, as we do, we must then decide whether any further prosecution is permitted.

A. The Grant of the Mistrial.

(1) Statutory Construction.

The statute under which Meza-Soria was charged reads as follows, in pertinent part:

Any alien who--

(1) has been arrested and deported or excluded and deported and thereafter

(2) enters, attempts to enter, or is at any time found in, the United States ...

shall be guilty of a felony....

8 U.S.C. Sec. 1326.

The elements of this crime are straightforward, so this is a case where our quest for meaning begins and ends "with the language of the statute itself." United States v. Ron Pair Enters., Inc., 489 U.S. 235, 241, 109 S.Ct. 1026, 1030, 103 L.Ed.2d 290 (1989). The elements are: (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. In the case at hand there is no real dispute about the last two elements, so our initial focus will be on the first element, alienage and its proof.

We first note that there is little reason to think that the word "alien" means anything different from what it says. If the statute were meant to apply to those individuals who are not aliens, it could easily have been drafted that way. For example, Congress could have used the more general terminology of "any person," or "whoever." See, e.g., 18 U.S.C. Sec. 207 and 18 U.S.C. Sec. 471. Its failure to do so emphasizes that alienage itself must be shown.

The legislative history of the provision is sparse ¹ at best, and nothing we have found indicates that "alien" should be taken to mean persons in general. In any event, the statute is so clear in this respect that there seems to be little need to search for legislative history, for if we did find some other construction of the word buried in that history, use of the construction would surely implicate basic principles of legality. See, e.g., L. Fuller, The Morality of Law, 33-41 (Yale U.Press 1964). At the very least, we would have to consider the doctrine of lenity. See, e.g., Bell v. United States, 349 U.S. 81, 83-84, 75 S.Ct. 620, 622, 99 L.Ed. 905 (1955) and McBoyle v. United States, 283 U.S. 25, 27, 51 S.Ct. 340, 341, 75 L.Ed. 816 (1931). Moreover, in United States v. Bejar-Matrecios, 618 F.2d 81, 83 (9th Cir.1980) we indicated that proof of alienage is required in a case such as this.

If alienage is an element of the crime, it would seem to follow that a defendant is entitled to contest the issue by demonstrating that he is not an alien. At first blush, nothing seems more obvious. That is just what Meza-Soria attempted here.

However, the government argued that Meza-Soria was, in effect, collaterally estopped from contesting his alienage, since he had of necessity been determined to be an alien in the prior deportation proceedings. We turn now to that contention.

(2) Collateral Estoppel.

If, as we have stated, alienage is an element of the crime, then it is an ineluctable conclusion that the government must prove that element beyond a reasonable doubt--due process demands no less. See Carella v. California, 491 U.S. 263, 265, 109 S.Ct. 2419, 2420, 105 L.Ed.2d 218 (1989), and In re Winship, 397 U.S. 358, 361-64, 90 S.Ct. 1068, 1071-73, 25 L.Ed.2d 368 (1970).

That, of course, does not mean that facts necessary to convict cannot be indisputably established by the doctrine of collateral estoppel. As we said in Bejar-Metrecios, 618 F.2d at 83, "[u]nder the collateral estoppel doctrine, where a question of fact essential to the judgment is actually litigated and determined by a valid judgment, the determination is conclusive between the same parties in a subsequent action." It is important to note, however, that in Bejar-Metrecios, the government sought to collaterally estop the defendant by using a judgment from another criminal case. Despite confrontation and jury trial implications, that makes a good deal of sense, for in the prior case the facts were found to be true beyond a reasonable doubt.

Here the situation is quite different. Here the prior determination was not made in a criminal proceeding, it was made in a deportation hearing, which is a civil proceeding. That itself would not be conclusive if the burden of proof borne by the government in that proceeding were the same as the burden in a criminal proceeding. It is not the same. Rather, as we have pointed out, in a deportation proceeding "the government must first present 'clear, convincing, and unequivocal' evidence of foreign birth." Ramon-Sepulveda v. INS, 743 F.2d 1307, 1308 n. 2 (9th Cir.1984) (citing Woodby v. Immigration Service, 385 U.S. 276, 284-86, 87 S.Ct. 483, 487-88, 17 L.Ed.2d 362 (1966)). We also noted that a presumption against the person was then created and the burden of proof shifted to that person.

Again, it is apparent that the "clear and convincing" burden is not the same as proof beyond a reasonable doubt. The Supreme Court made that explicit in Santosky v. Kramer, 455 U.S. 745, 755-57, 102 S.Ct. 1388, 1395-96, 71 L.Ed.2d 599 (1982). There, after discussing the preponderance of the evidence and beyond a reasonable doubt standards, the Court referred to the clear and convincing standard as "an intermediate standard of proof...." Id. at 756, 102 S.Ct. at 1396.

It is true that on occasion individual justices of the Supreme Court have said that the clear and convincing burden is substantially identical to proof beyond a reasonable doubt, but that view has never commanded a majority of the Court. See Kungys v. United States, 485 U.S. 759, 792-95, 108 S.Ct. 1537, 1557-59, 99 L.Ed.2d 839 (1988) (Stevens, J., concurring), and Klapprott v. United States, 335 U.S. 601, 612-13, 69 S.Ct. 384, 389, 93 L.Ed. 1099 (1949) (Black, J., dissenting). In fact, it is highly unlikely that the Court would allow facts in a criminal case to be proved upon a mere clear and convincing evidence standard. Cf., Winship, 397 U.S. at 364, 90 S.Ct. at 1073.

This difference in burdens of proof alone should demonstrate that it would be quite improper to establish the alienage element of the reentry offense through the use of factual findings in the deportation hearing. One might as well collaterally estop a defendant...