U.S. v. Smith-Baltiher

• Decision Date: 09 September 2005
• Docket Number: No. 03-50375.,03-50375.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Genaro SMITH-BALTIHER, Defendant-Appellant.
• Court: U.S. Court of Appeals — Ninth Circuit

424 F.3d 913

UNITED STATES of America, Plaintiff-Appellee, v. Genaro SMITH-BALTIHER, Defendant-Appellant.

No. 03-50375.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted December 8, 2004.

Filed September 9, 2005.

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Matthew C. Winter, Federal Defenders of San Diego, Inc., San Diego, CA, for the defendant-appellant.

Carol C. Lam, United States Attorney; Roger W. Haines, Jr., Christopher M. Alexander, Assistant U.S. Attorneys, San Diego, CA, for the plaintiff-appellee.

Appeal from the United States District Court for the Southern District of California; Barry T. Moskowitz, District Judge, Presiding. D.C. No. CR-02-01867-BTM.

Before REINHARDT, BEEZER, and WARDLAW, Circuit Judges.

REINHARDT, Circuit Judge.

The issues presented include how courts should determine in a criminal proceeding whether a defendant is a citizen or an alien and whether a good faith belief that one is a citizen is enough to defeat a charge of attempted illegal entry. Genaro Smith-Baltiher was convicted of attempted reentry into the United States in violation of 8 U.S.C. § 1326. He appeals the district court's rulings that (1) he is collaterally estopped from challenging his status as an alien, (2) he is precluded from presenting evidence of his good faith reasonable belief that he did not need permission to reenter, and (3) his voluntary post-arrest statements to border inspectors are admissible although they were not electronically recorded. Additionally, he challenges the district court's discretionary denial of a continuance on the morning of trial and the constitutionality of his sentence. Because we agree that he is not collaterally estopped from challenging his status as an alien and that he is entitled to present evidence of his reasonable belief that he did not need permission to reenter, we reverse the pertinent rulings of the district court and his conviction; we remand the case for a new trial or such other action as may be appropriate. It is therefore not necessary for us to decide the continuance and sentencing issues. We affirm the district court's admission of the post-arrest statements, however, as the identical question is likely to arise again following remand.

I.

Smith applied for entry at the San Ysidro, California Port of Entry. He informed an Immigration and Naturalization Service ("INS")¹ inspector that he was a U.S. citizen by birth, but that he did not possess supporting identification. He was then referred to another inspector for a secondary interview. Computer checks of Smith's name and fingerprints revealed that on at least four prior occasions, he had been deported and removed to Mexico for being an illegal alien found in the U.S.² Consequently, the inspector placed him under arrest for attempting reentry without consent in violation of 8 U.S.C. § 1326.

Smith waived his Miranda rights and the inspector transcribed handwritten notes of the interview. Smith stated that he was born in Tijuana, Mexico and provided the inspector with a Mexican birth certificate that confirmed his Mexican birthplace and that stated that both of his parents were Mexican nationals. He also said that he had told the first inspector that he was born in California, but he then acknowledged that he had been deported on at least four prior occasions and that he had not obtained permission or a waiver to reenter.

A grand jury later charged him under § 1326 with being an alien who, having previously been excluded, deported, and removed from the U.S., attempted to reenter without the Attorney General's express consent to his reapplication for admission. Although Smith has never filed an application for a certificate of citizenship with the INS, numerous pre-trial motions hearings and status conferences were held in this case regarding discovery of his evolving citizenship claim.

Prior to trial, defense counsel requested that the government turn over a copy of the U.S. birth certificate of the defendant's mother, Maria Baltiher, so that counsel could investigate a claim of derivative citizenship. The government denied having a valid birth certificate for the mother because the one it possessed was, in the government's words, "fraudulently obtained. . . . It was obtained by means of an affidavit, and it was a belatedly issued birth certificate." No court, however, has ever determined the birth certificate to be fraudulent. Accordingly, the district court ordered the government to turn over the certificate and any application or affidavit supporting it, on the ground that the certificate appeared exculpatory on its face.

The district court also ordered an in camera inspection of the mother's A-File.³ After reviewing the file, the court determined that the information within the file was discoverable and that defense counsel should be allowed to inspect and copy it. At that time, the government inquired whether the court would be "looking to make a determination on derivative citizenship before the trial date." The judge replied that he did not intend to make a determination before trial: "I think that would be a fact question for the jury."

Smith filed a motion to preclude the use of his prior guilty pleas. Although Smith has a sordid criminal history, its only relevance in this appeal is that in 1998 and 1999 he was convicted of charges related to illegal entry. He pled guilty in 1998 to being a deported alien found in the U.S. and in 1999 to illegal entry in violation of 8 U.S.C. § 1325. On both occasions, he stipulated as part of his guilty plea that he was not a U.S. citizen and in neither did he advance a claim of U.S. citizenship. In fact, the question of his derivative citizenship had never been raised or litigated before any court prior to the institution of these proceedings; thus there had been no previous discovery regarding his mother's birth certificate or any of the reports, letters, or affidavits purporting to establish her U.S. birth.

At the hearing on the Brady motion, the government moved to preclude all evidence of Smith's alleged U.S. citizenship. Defense counsel objected because "that [was] Mr. Smith's defense in the case." After inquiring into the requirements for derivative citizenship, the court denied the government's motion, ruling that Smith is "free to put on evidence that he meets the derivative citizenship standard, and [the court] would instruct the jury on what the test for derivative citizenship is. . . . [The government has] to prove beyond a reasonable doubt that he is an alien."

At a hearing about a month later, the court considered a motion to suppress the post-arrest statements on the ground that the interrogation was not electronically recorded despite the availability of functioning video equipment in the interview room. The court denied the motion, ruling that the statement was voluntary and that neither the Constitution nor any other controlling authority compels the electronic recording of statements.

At the next hearing, the court heard the remaining pre-trial motions. The court first addressed the issue of the requisite element of intent under § 1326. It expressed uncertainty as to whether the offense required general or specific intent. The court then informed the parties that it would instruct the jury that one of the elements of the offense is that the defendant is not a U.S. citizen or national and that it would also instruct it as to the requirements for derivative citizenship. The government objected to these instructions on the ground that Smith is entitled to derivative citizenship if, and only if, he has received a certificate to that effect. In other words, the government argued that derivative citizenship is not automatically acquired at birth but must be applied for, and that it is obtained only by virtue of official recognition in the form of a certificate. The hearing concluded with the court's instruction to both parties to "brief whether one is a derivative citizen if they meet the requirements as a matter of fact or only when a certificate of derivative citizenship is issued by the I.N.S."⁴

At a hearing the week before trial, the court considered the government's argument that Smith was collaterally estopped from challenging his status as an alien because he had admitted in prior guilty pleas that he was not a U.S. citizen. The court decided the issue in the government's favor, ruling that the prior judgments based on pleas of guilty collaterally estopped Smith from contesting the issue of alienage in this or any subsequent criminal proceeding. Although defense counsel attempted to show that Smith intended to offer evidence that would support a claim of derivative citizenship and that the pleas had not been taken under the stringent reasonable doubt standard, the court nevertheless ruled that he was collaterally estopped from contesting the alienage issue. The court, quoting United States v. Bejar-Matrecios, 618 F.2d 81, 84 (9th Cir.1980), explained: "Because a knowing and voluntary guilty plea constitutes an admission of all of the material facts alleged in the indictment, it is fair to estop a defendant from re-litigating a common material fact even at a subsequent criminal proceeding." The ruling was consistent with the view of offensive collateral estoppel then controlling in this circuit.

On the eve of trial, the district court heard argument by defense counsel that because attempted reentry is a specific intent crime, a mental health expert should be allowed to testify at trial. Counsel stated that through the expert's testimony as well as testimony from Smith's family, he intended to establish that at the time Smith applied for admission, he believed in good faith that he was a U.S. citizen. He argued that because U.S. citizens do not need permission to enter the country, Smith had no obligation to seek the Attorney General's consent. The court initially agreed with defense counsel, ruling, "It seems to me that...