US v. CASTILLO-BASA, 05-50768.

CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)
Writing for the CourtValerie H. Chu, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee
Citation478 F.3d 1025
PartiesUNITED STATES of America, Plaintiff-Appellee, v. Buenaventura CASTILLO-BASA, Defendant-Appellant.
Docket NumberNo. 05-50768.,05-50768.
Decision Date26 February 2007

478 F.3d 1025

UNITED STATES of America, Plaintiff-Appellee,
Buenaventura CASTILLO-BASA, Defendant-Appellant.

No. 05-50768.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted June 9, 2006.

Filed February 26, 2007.

478 F.3d 1026
478 F.3d 1027
Michael Edmund Burke, San Diego, CA, for the defendant-appellant

Valerie H. Chu, Assistant United States Attorney, San Diego, CA, for the plaintiff-appellee.

Before: REINHARDT, TROTT, and WARDLAW, Circuit Judges.

478 F.3d 1028

REINHARDT, Circuit Judge:


This case presents an important question that cuts to the heart of the Double Jeopardy Clause. It involves the right of a defendant to be free from repeated prosecutions in which the government retries him until it obtains a guilty verdict. The government was unable to convict Castillo-Basa the first time it tried him, for illegal reentry, in large part because its counsel failed to locate and present a crucial tape recording that was within its possession. To its surprise, the jury acquitted him. Now, having "found" the tape, the government seeks to prosecute Castillo-Basa again, this time for perjury committed in connection with the illegal reentry trial. The central issue at the second trial would be the same as it was at the first: was Castillo-Basa afforded a deportation hearing at which he was present?

The Double Jeopardy Clause requires the government to put on its strongest case the first time; it forbids it to conduct a series of prosecutions, involving the same fundamental issues, in which it presents additional arguments and evidence at each iteration. Here, the government has already had its chance to prove that Castillo-Basa had a deportation hearing and that his testimony to the contrary was false. It failed, largely because it didn't introduce the evidence that it had in its possession. Under the Double Jeopardy Clause, the government may not take a mulligan.

The outcome in this case follows directly from basic principles of collateral estoppel that are inherent in the Double Jeopardy Clause. See Ashe v. Swenson, 397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970). The only issue in dispute during Castillo-Basa's trial for illegal reentry was whether he had been brought before an immigration judge and afforded a deportation hearing prior to his deportation. The ultimate question at issue in the second prosecution —for perjury—would be whether he testified falsely at the previous trial that he had not been present at a deportation hearing. When the jury acquitted Castillo-Basa of the illegal reentry offense, it decided, as the government acknowledged below, that a deportation hearing had not been held and, thus, that he had not been brought before an immigration judge for such a hearing. Accordingly, in rendering its verdict, the jury necessarily decided that Castillo-Basa's testimony on the critical question of the deportation hearing was not false. The Double Jeopardy Clause bars the government from trying a second time to attempt to show that Castillo-Basa was afforded the hearing in question and that his testimony to the contrary was untruthful.


On June 16, 2004, Buenaventura Castillo-Basa1 was indicted for being a previously deported alien found in the United States in violation of 8 U.S.C. § 1326 (2000). Castillo-Basa's counsel filed several pretrial motions, including a discovery motion requesting production of "all discovery listed below that is in the custody, control, care, or knowledge of any government agency." The government informed the district court that an audio tape recording of Castillo-Basa's deportation hearing existed but asserted that it could not locate the recording. The district court granted Castillo-Basa's motion to compel discovery, specifically ordering the government to produce the tape recording

478 F.3d 1029
of his deportation hearing. At another hearing some three months later, defense counsel stated that it was his understanding that there had not been a deportation hearing and reported that he had not received a tape of any hearing. He also suggested that Castillo-Basa may have been deported "in absentia," without ever being brought before an immigration judge. The court again ordered the government to produce the tape recording, but the government failed to do so

On November 23, 2004, defense counsel filed motions in limine, including a motion to "dismiss the indictment because there was no prior deportation." On the day of the motions hearing, the defense filed a sworn declaration by Castillo-Basa stating that "prior to May 2, 1996, I never appeared before an immigration judge" and "prior to May 2, 1996, I was never given an immigration hearing."

Castillo-Basa's jury trial on the illegal reentry charge began on January 4, 2005. The government argued in its trial memorandum that a tape recording of the deportation was not required to prove the prior deportation. At trial, the government presented four witnesses: Border Patrol Agent Alberto Vallina, who testified that he found Castillo-Basa on June 4; Border Patrol Agent Dwain Holmes, who testified as custodian of Castillo-Basa's "A"—or alien—file and through whom the government introduced the deportation order dated April 30, 1996, and the Warrant of Deportation; John Torres, a fingerprint expert who testified that the fingerprints of the person arrested on June 4, 2004 matched the fingerprints on the Warrant of Deportation dated May 2, 1996; and Immigration Enforcement Agent Eddie Jackson, whose signature appears on Castillo-Basa's Warrant of Removal and who testified that he does not sign such a warrant until he observes an alien physically depart from the country. Castillo-Basa testified at trial that he was supposed to appear before an immigration judge on April 30, but that on the date of the hearing, no one came to get him out of his cell. He further testified that he had never come before an immigration judge and that he did not see any representative of the INS until May 2, when the agents took him from his cell to the Mexican border.2

The defense theory throughout trial was that in order to be deported, an alien must be brought before an immigration judge, and that Castillo-Basa was never placed in front of a judge. In this vein, the defense requested a proposed "theory of the defense" instruction, which stated that in order to find that Castillo-Basa was deported, the "government must prove beyond a reasonable doubt" that he "was physically present at a hearing before an immigration judge, and that the immigration judge ordered a final order of deportation against him." The district court rejected the proposed instruction, ruling that all that was required was that a hearing be held, not that Castillo-Basa be present.

Following the government's case-in-chief and Castillo-Basa's testimony, the district court denied Castillo-Basa's motion to dismiss the indictment, finding by a preponderance of the evidence that a deportation hearing was held on April 30, 1996 and that Castillo-Basa was present. The court relied on the deportation order the government presented and on the "normal course" of deportation proceedings; it specifically found Castillo-Basa not to be credible. Nevertheless, in closing argument,

478 F.3d 1030
Castillo-Basa's attorney relied heavily on Castillo-Basa's testimony and identified a number of gaps in the evidence the government had offered in its effort to prove that a deportation hearing had been held. Whether such a hearing was actually held was the only issue in dispute. The jury acquitted Castillo-Basa of the illegal reentry offense

Less than two weeks after the jury returned its verdict, government agents located the tape recording of the April 30, 1996 deportation hearing. On the recording, Immigration Judge John Williams recited the names of individuals who were to have a deportation hearing that day; Castillo-Basa's name was among those listed. An individual responded to the name "Buenaventura Castillo-Basa" and admitted that he had been convicted of a crime in December 1985. The details provided by the responding individual regarding the 1985 conviction, such as the date of the offense and the amount of time served, correlate with the details of Castillo-Basa's criminal history.

On April 27, 2005, a grand jury indicted Castillo-Basa on two counts of perjury, in violation of 18 U.S.C. § 1621 (2000), charging that he had submitted a false declaration in December 2004 and had falsely testified under oath at his criminal trial that he had never appeared before an immigration judge. Castillo-Basa filed a motion to dismiss the perjury indictment on the basis of "double jeopardy and collateral estoppel." Following argument by the parties, the district court denied the motion. The district judge concluded that the issue of Castillo-Basa's veracity with regard to whether he had attended a deportation hearing had not necessarily been decided in the first trial. He opined as well that Castillo-Basa had taken unfair advantage of the government's inability to locate the tape recording by giving perjured testimony and, in so doing, had violated public policy and adversely affected the integrity of the judicial process. Castillo-Basa now appeals the denial of his motion to dismiss the indictment.

We have jurisdiction under 28 U.S.C. § 1291 (2000). See United States v. Cejas, 817 F.2d 595, 596 (9th Cir.1987) (providing for pretrial appeal under § 1291 of a motion to dismiss an indictment on the basis of collateral estoppel). We review the denial of a motion to dismiss an indictment based upon double jeopardy and collateral estoppel de novo. See United States v. Hickey, 367 F.3d 888, 891 n. 3 (9th Cir.2004). "A district court's factual findings, however, including those on which a denial may be based, are reviewed for clear error." Id.


The issue before us is not whether Castillo-Basa committed perjury. Indeed, it would...

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