United States v. Rangel-Perez, Cr. No. 25568-CD.

• Court: United States District Courts. 9th Circuit. United States District Court (Southern District of California)
• Writing for the Court: Jerome Schwimmer, Los Angeles, Cal., for defendant
• Citation: 179 F. Supp. 619
• Parties: UNITED STATES of America, Plaintiff, v. Liborio RANGEL-PEREZ, Defendant.
• Docket Number: Cr. No. 25568-CD.
• Decision Date: 09 December 1959

179 F. Supp. 619

UNITED STATES of America, Plaintiff,
v.
Liborio RANGEL-PEREZ, Defendant.

Cr. No. 25568-CD.

United States District Court S. D. California, Central Division.

December 9, 1959.

179 F. Supp. 620

COPYRIGHT MATERIAL OMITTED

179 F. Supp. 621

Laughlin E. Waters, U. S. Atty., and Robert J. Jensen, Asst. U. S. Atty., Los Angeles, Cal., for plaintiff

Jerome Schwimmer, Los Angeles, Cal., for defendant.

MATHES, District Judge.

Defendant was convicted on June 9, 1943, after trial in this Court, of the crime of illegal entry into the United States from the Republic of Mexico. See Docket No. 6634-SD (Crim.). The 1943 indictment alleged: "That on or about the 12th day of August, 1941 * * * the defendant, who is a Mexican alien * * * was deported from the United States to Mexico * * * and on or about the 5th day of February, 1942 * * * did knowingly, wilfully, unlawfully, and feloniously * * *

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enter the United States * * *." See 8 U.S.C.A. § 180 (1940)

Thereafter defendant was again deported to Mexico. Now he is again on trial before this Court, having waived trial by jury, charged with the felony of being "an alien who * * * has been * * * deported * * * and thereafter * * * is at any time found in, the United States * * *." 8 U.S. C.A. § 1326. Specifically, the indictment here charges that the "Defendant, Liborio Rangel-Perez, who is an alien, on or about March 25, 1948, was deported from the United States to Mexico through the port of El Paso, Texas and thereafter, on or about January 3, 1957, defendant was found in * * * the Southern District of California."

To prove defendant's status as an alien, the Government has produced: (1) substantially the same evidence which was relied upon to prove alienage and to procure the 1943 conviction of illegal entry; (2) the record of defendant's 1943 conviction, including the finding and adjudication that defendant's status at the time of his conviction on June 9, 1943, was that of an alien, a person "not a citizen or national of the United States" see 8 U.S.C.A. § 1101(3), (21), (22); and (3) a baptismal record recently procured, and authenticated by deposition of the custodian, taken in Leon, State of Guanajuato, Mexico; which deposition was obtained pursuant to a commission issued out of this Court by virtue of 18 U.S.C. §§ 3492-3496.

Decision has been reserved until now of defendant's motion to strike all evidence of the 1943 adjudication of his alienage which was received at the trial, upon the ground that in the prosecution at bar he is entitled to a trial de novo as to each essential element of the offense of which he now stands charged, including that of his nationality status.

Defendant has also moved to strike the custodian's deposition authenticating the baptismal record from Mexico, and the baptismal record itself, upon the ground that the procedures provided by 18 U.S.C. §§ 3492-3496 for authenticating the document by the testimony of an absent witness are unconstitutional, in depriving the accused of his right to confront all witnesses against him. U. S.Const. amend. VI.

Turning first to defendant's motion to strike the evidence of his 1943 conviction, it is the contention of the Government that the issue as to whether defendant was then an alien was necessarily and fully tried and adjudicated between the parties in 1943, and that the doctrine of res judicata, or more especially the doctrine of collateral estoppel, may properly be invoked against defendant in order to obviate another trial of the nationality-status issue. See 8 U.S.C.A. §§ 1481-1484.

The doctrines of res judicata and collateral estoppel have long been applied in criminal cases in the Federal courts. See: Sealfon v. United States, 1948, 332 U.S. 575, 578, 68 S.Ct. 237, 92 L.Ed. 180; United States v. Adams, 1930, 281 U.S. 202, 204-205, 50 S.Ct. 269, 74 L.Ed. 807; United States v. Oppenheimer, 1916, 242 U.S. 85, 86-88, 37 S.Ct. 68, 61 L.Ed. 161; Frank v. Mangum, 1915, 237 U.S. 309, 333-334, 35 S.Ct. 582, 59 L.Ed. 969; Yawn v. United States, 5 Cir., 1957, 244 F.2d 235, 237-238; Cosgrove v. United States, 9 Cir., 1955, 224 F.2d 146, 150; United States v. Simon, 3 Cir., 1955, 225 F.2d 260, 262; United States v. De Angelo, 3 Cir., 1943, 138 F.2d 466, 468-469; United States v. Carlisi, D.C.E.D. N.Y.1940, 32 F.Supp. 479, 481-483; United States v. Morse, D.C.S.D.N.Y. 1926, 24 F.2d 1001.

To be held conclusive in a subsequent criminal proceeding by virtue of the doctrine of collateral estoppel, the facts determined by the earlier judgment must of course have been fully tried and necessarily adjudicated in order to reach judgment on the issues involved in the essential elements of the crime charged. Sealfon v. United States, supra, 332 U.S. at pages 578-579, 68 S.Ct. at page 239; United States v. Adams, supra, 281 U.S. at page 205, 50 S.Ct. at page 269; but cf. Smith v. United States, 6 Cir., 1957, 243 F.2d 877, 878. Moreover, in applying the

179 F. Supp. 623

doctrine, "the trial judge should * * * examine the record of the antecedent case to determine the issues decided by the judgment * * *.", and fully instruct the jury as to precisely what facts have thus been established. Emich Motors Corp. v. General Motors Corp., 1951, 340 U.S. 558, 572, 71 S.Ct. 408, 415, 95 L. Ed. 534

There is some doubt as to whether collateral estoppel is a constitutional requirement of due process see: Hoag v. State of New Jersey, 1958, 356 U.S. 464, 471, 78 S.Ct. 829, 2 L.Ed.2d 913; Comment, 14 Wash. & Lee L.Rev. 80 (1957) and Comment, 25 Brooklyn L.Rev. 33 (1958), or merely an expression of public policy. See: Local 167 of International Brotherhood of Teamsters, Chauffeurs, Stablemen & Helpers of America v. United States, 1934, 291 U.S. 293, 298-299, 54 S.Ct. 396, 78 L.Ed. 804; Smith v. United States, supra, 243 F.2d at page 878; United States v. Wainer, 7 Cir., 1954, 211 F.2d 669, 671-672; United States v. Gramling, 5 Cir., 1950, 180 F. 2d 498, 499-500; and Anderson, Res Judicata With Respect to Criminal Judgments, 120 N.Y.L.J. 2194 (1939); cf. United States v. Simon, supra, 225 F.2d at page 262; United States v. De Angelo, supra, 138 F.2d at page 469; United States v. Carlisi, supra, 32 F.Supp. at pages 482, 483.

The reported criminal cases in which the doctrine of collateral estoppel has been applied in the Federal courts are largely those in which the doctrine has been invoked for the benefit of the defendant, by way of defense. In Sealfon v. United States, supra, 332 U.S. 575, 68 S.Ct. 237, 92 L.Ed. 180, prior acquittal as a conspirator was held in a later prosecution as alleged aidor and abettor to be conclusive on the issue as to the existence of an agreement with a co-defendant. In United States v. Simon, supra, 225 F.2d 260, prior acquittal for receiving stolen goods was held in a later prosecution for possession to be conclusive on the issue as to receipt of the goods by the accused.

In United States v. De Angelo, supra, 138 F.2d 466, it was held that, inasmuch as prior acquittal for robbery was conclusive on the issue as to presence of the accused at the scene of the crime, evidence of his presence was inadmissible in a later trial on the charge of conspiracy. And in both Yawn v. United States, supra, 244 F.2d 235, and United States v. Carlisi, supra, 32 F.Supp. 479, it was held that prior acquittal for possession of a still was conclusive, and hence that evidence of possession by the accused was inadmissible in a later conspiracy prosecution. While in United States v. Meyerson, D.C.S.D.N.Y.1928, 24 F.2d 855, prior acquittal for mail fraud was held conclusive as to the defendant's participation, and thus served as ground to quash a later indictment for conspiracy.

The Court in United States v. McConnell, D.C.E.D.Pa.1926, 10 F.2d 977 held a prior acquittal for fraud to be conclusive as to the issuance of false permits alleged in a later indictment for conspiracy and, an essential element of the offense charged so rendered lacking, the indictment was quashed. See also: United States v. Adams, supra, 281 U.S. at pages 203-204, 50 S.Ct. at page 269; United States v. Oppenheimer, supra, 242 U.S. at pages 87-88, 37 S.Ct. at page 69; Cosgrove v. United States, supra, 224 F.2d at pages 148-149; United States v. Morse, supra, 24 F.2d at page 1001.

Although invoked in criminal cases in the Federal courts primarily by and for the defendant, collateral estoppel has been applied against the interests of the accused in some limited situations. For example, in Steele v. United States, 1925, 267 U.S. 505, 45 S.Ct. 417, 69 L.Ed. 761, the issue of the constitutional validity of a warrant sustained in a prior prosecution was held to be conclusive in a second prosecution, even though objected to on a different ground.

While in Collins v. United States, 8 Cir., 1953, 206 F.2d 918, a finding in a habeas corpus proceeding, following litigation of the issue, that the petitioner had voluntarily and understandingly

179 F. Supp. 624

waived counsel in a prosecution for robbery, was held res judicata in a hearing on a subsequent writ based on the same evidence, Judge Johnsen there observing for the Court that "* * * beyond the matter of technical bar, there exists also the element of the inherent power of a court to protect itself against imposition and abuse of its process, so that no litigant can demand as a matter of right that repetitive judicial consideration and determination be made of a controversy which he once has had the opportunity to subject to juridical proceeding and has obtained a resolution of, on valid process and under existing jurisdiction." 206 F.2d at page 920

And in United States v. Wainer, supra, 211 F.2d 669, conviction of illegal production and sale of liquor was held conclusive as to defendant's proprietorship, in a later suit by the United States for taxes. Cf.: Chaunt v. United States, 9 Cir., 1959, 270 F.2d 179; Smith v. United States, supra, 243 F.2d 877;...