Wilkinson v. Gingrich
| Decision Date | 03 September 2015 |
| Docket Number | No. 13–56952.,13–56952. |
| Citation | 806 F.3d 511 |
| Parties | James Kendell WILKINSON, Petitioner–Appellee, v. Doug GINGRICH, Orange County Probation, Respondent–Appellant. |
| Court | U.S. Court of Appeals — Ninth Circuit |
806 F.3d 511
James Kendell WILKINSON, Petitioner–Appellee,
v.
Doug GINGRICH, Orange County Probation, Respondent–Appellant.
No. 13–56952.
United States Court of Appeals, Ninth Circuit.
Argued and Submitted July 7, 2015.
Filed Sept. 3, 2015.
Amended Nov. 3, 2015.
Kamala D. Harris, Attorney General, Julie L. Garland, Senior Assistant Attorney General, Peter Quon, Jr.(argued) and Kevin R. Vienna, Supervising Deputy Attorneys General; Office of the Attorney General, San Diego, CA, for Respondent–Appellant.
Hilary Potashner, Acting Federal Public Defender; K. Elizabeth Dahlstrom (argued), Deputy Federal Public Defender, Office of the Federal Public Defender, Santa Ana, CA, for Petitioner–Appellee.
ORDER AND AMENDED OPINION
W. FLETCHER, Circuit Judge:
ORDER
The opinion filed on September 3, 2015, and published at 800 F.3d 1062, is hereby amended and replaced by the amended opinion filed concurrently with this order. With these amendments, all judges on the panel have voted to deny the petition for panel rehearing. The petition for panel rehearing is DENIED. The petition for rehearing en banc was circulated to the judges of the court, and no judge requested a vote for en banc consideration. The petition for rehearing en banc is therefore DENIED. Fed. R.App. P. 35. No further petitions for rehearing or rehearing en banc will be entertained.
OPINION
The State of California appeals the district court's grant of James Kendell Wilkinson's petition for a writ of habeas corpus.1Wilkinson was convicted of perjury for testifying in a traffic court proceeding that he was not the driver of a car that had been stopped for speeding and whose driver had been ticketed. The State brought the perjury prosecution after Wilkinson was acquitted of the speeding offense. We agree with the district court that the state appellate court unreasonably applied Ashe v. Swenson,397 U.S. 436, 90 S.Ct. 1189, 25 L.Ed.2d 469 (1970), when it held that Wilkinson's acquittal in traffic court did not bar the subsequent perjury prosecution. See28 U.S.C. § 2254(d)(1). The principle of collateral estoppel embodied in the Fifth Amendment's protection against double jeopardy, as clearly established in Ashe,precludes relitigation of ultimate issues that were necessarily decided in a prior proceeding between the parties. Ashe,397 U.S. at 443, 90 S.Ct. 1189. In this case, the traffic court necessarily decided, in Wilkinson's favor, an issue that was critical to both the traffic court and perjury proceedings—that Wilkinson was not the driver of the speeding car. The State was therefore precluded by the Double Jeopardy Clause from bringing the perjury prosecution.
I. Background
A. The Traffic Court Proceeding
On January 20, 2007, Officer Mark Magrann of the California Highway Patrol pulled over a car he recorded traveling at 101 miles per hour, well over the speed limit. The driver identified himself as
Kendall Wilkinson and presented a United Kingdom driver's license bearing that name. The license did not include a photograph. The car was registered to Charmaine Wilkinson,' who was a passenger in the car and who is married to the appellant. Charmaine testified in the later perjury trial that Kendall Wilkinson is her husband's cousin. During the brief traffic stop, the driver remarked to Officer Magrann that traveling at high speeds is normal in other countries. Officer Magrann issued a citation that ordered the driver to appear in Superior Court (the “traffic court”) for a hearing. The signature on the citation appears to read “J. Wilkinson.”
When the driver did not show up for the scheduled hearing, the traffic court issued an arrest warrant for “Kendal [sic] Wilkinson.” The sheriff's department arrested Wilkinson on the warrant.
The traffic court held a trial on July 30, 2007, at which Wilkinson and Officer Magrann appeared. There is no transcript of the trial, but the parties do not dispute the essentials of what transpired. Wilkinson testified that he was not the driver of the car. He also provided a Nevada license bearing the name “James Kendell Wilkinson” and a photograph. Both Officer Magrann and the judge examined the driver's license. Officer Magrann testified in the later perjury trial that the photograph on the Nevada driver's license “appear[ed] to be” Wilkinson. He testified further that “once [Wilkinson] put that driver's license down with the different name, different date of birth, it was authentic, I've seen Nevada driver's licences before and it just made me question—made me doubt as to whether he was actually driving the vehicle.” Officer Magrann recounted that he had testified in traffic court that he was “approximately ... about 98 percent sure” that Wilkinson had been the driver.
The traffic court judge acquitted Wilkinson. The following entry appears on the court's docket sheet: “The Court finds the defendant NOT GUILTY as to all counts as charged in the Original Citation. The person in court states that they are not the same person named in the Citation.”
After the traffic court hearing ended, Officer Magrann spoke with Wilkinson in the hallway. Wilkinson noted that driving over one hundred miles per hour is not a big deal in other countries. Wilkinson spoke with what Officer Magrann described as the same arrogance of the driver he had stopped. At that point, it “clicked” for Officer Magrann, and he concluded that Wilkinson had indeed been the driver.
B. The Perjury Proceeding
The next day, Officer Magrann initiated an investigation of Wilkinson. About six months later, nine or ten police officers, with their guns drawn, broke down the door to execute a search warrant at Wilkinson's home. Once inside the home, the officers discovered folders containing traffic citations. One folder was labeled “Jim's tickets.” Another folder was labeled “Kendall Wilkinson,” and contained the speeding ticket from January 20, 2007. Police also discovered a ticket issued to Reginald Freuchet, a French citizen. Charmaine testified during the perjury trial that Freuchet had stayed at their house and driven her husband's car, and that he had features similar to those of her husband.
The State charged Wilkinson with perjury in violation of California Penal Code § 118(a). At the start of the perjury trial, Wilkinson objected that the prosecution was barred by collateral estoppel and the Double Jeopardy Clause. The trial judge overruled the objection, reasoning that “if the court were to accept the theory of
collateral estoppel, then the end result would mean that nobody could ever be prosecuted for perjury if they were successful in maintaining the perjury or the fraud.”
In his testimony, Officer Magrann recounted what had happened in the traffic court trial and identified Wilkinson as the driver he stopped on January 20, 2007. Charmaine testified that Kendall, her husband's cousin, was the driver and that she had not spoken to him since the day of the stop. Wilkinson testified that he was not the driver. Kendall did not testify or otherwise appear.
The trial judge instructed the jury that, in order to convict Wilkinson of perjury, it must find, among other things, that Wilkinson “willfully stated that the information was true even though he knew it was false,” and that when “[Wilkinson] made the false statement, he intended to testify falsely while under oath.” The judge also informed the jury that “[t]he People allege that the defendant made the following false statement: that he was not the driver of the vehicle on January 20th, 2007.”
The jury convicted Wilkinson. He was sentenced to forty-five days in the county jail and three years of probation.
The California Court of Appeal affirmed Wilkinson's conviction. The court discussed several state court opinions refusing to apply collateral estoppel to subsequent perjury prosecutions for fear of incentivizing or rewarding perjury. The Court of Appeal wrote, however, that there was no need to “wade into the thicket of competing policy considerations” because Wilkinson had not established the “threshold requirements of collateral estoppel.” The court held that collateral estoppel did not bar the perjury prosecution because Wilkinson had not shown that the traffic court judge necessarily determined that he testified truthfully in traffic court. The Court of Appeal reasoned that the traffic court judge did not necessarily make a finding as to Wilkinson's veracity because it could have acquitted Wilkinson based on Officer Magrann's doubt about whether Wilkinson was the driver. The court wrote that the Supreme Court's decision in Ashe v. Swensonhad “limited application” to Wilkinson's case because the Ashedefendant's veracity was not at issue, and therefore not necessarily decided, in the first trial.
C. Federal Habeas Proceedings
After the California Supreme Court denied Wilkinson's petition for review, Wilkinson filed a habeas petition in federal district court under 28 U.S.C. § 2254. He claimed, among other things, that because of his acquittal in the traffic court proceeding the State was collaterally estopped, and therefore barred by the Double Jeopardy Clause, from prosecuting him for perjury. The magistrate judge agreed and recommended granting Wilkinson's petition. According to the magistrate judge, the state court...
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