United States v. Castillo-Basa

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,  No. 05-50768

Plaintiff-Appellee, D.C. No.

v. CR-05-00734-JAH

BUENAVENTURA CASTILLO-BASA,  ORDER

Defendant-Appellant. AMENDING

OPINION AND

AMENDED

 OPINION

Appeal from the United States District Court

for the Southern District of California

John A. Houston, District Judge, Presiding

Argued and Submitted

June 9, 2006—Pasadena, California

Filed February 26, 2007

Amended April 24, 2007

Before: Stephen Reinhardt, Stephen S. Trott, and

Kim McLane Wardlaw, Circuit Judges.

Opinion by Judge Reinhardt;

Dissent by Judge Trott

4459

4462 UNITED STATES v. CASTILLO-BASA

COUNSEL

Michael Edmund Burke, San Diego, California, for the

defendant-appellant.

Valerie H. Chu, Assistant United States Attorney, San Diego,

California, for the plaintiff-appellee.

ORDER

The opinion filed February 26, 2007, is hereby amended.

The following sentence at 478 F.3d 1033 is deleted:

To prove previous deportation — the third ele-

ment and the only one in dispute at Castillo-Basa’s

UNITED STATES v. CASTILLO-BASA 4463

trial — the government must establish, as the district

court instructed the jury, “[(1)] that a deportation

proceeding occurred as to [the] defendant and as a

result, [(2)] a warrant of deportation was issued and

[(3)] executed by the removal of the defendant from

the United States.”

The following sentence is substituted therefor:

To prove previous deportation — the third ele-

ment and the only one in dispute at Castillo-Basa’s

trial — the district court instructed the jury that the

government must establish “[(1)] that a deportation

proceeding occurred as to [the] defendant and as a

result, [(2)] a warrant of deportation was issued and

[(3)] executed by the removal of the defendant from

the United States.”

With this amendment, Judges Reinhardt and Wardlaw vote

to deny the petition for rehearing; Judge Trott votes to grant

the petition for rehearing. General order 5.4(b) now applies.

OPINION

REINHARDT, Circuit Judge:

I

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 coun-

sel failed to locate and present a crucial tape recording that

was within its possession. To its surprise, the jury acquitted

4464 UNITED STATES v. CASTILLO-BASA

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 gov-

ernment may not take a mulligan.

The outcome in this case follows directly from basic princi-

ples of collateral estoppel that are inherent in the Double

Jeopardy Clause. See Ashe v. Swenson, 397 U.S. 436 (1970).

The only issue in dispute during Castillo-Basa’s trial for ille-

gal reentry was whether he had been brought before an immi-

gration judge and afforded a deportation hearing prior to his

deportation. The ultimate question at issue in the second pros-

ecution — for perjury — would be whether he testified falsely

at the previous trial that he had not been present at a deporta-

tion hearing. When the jury acquitted Castillo-Basa of the ille-

gal 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 immi-

gration judge for such a hearing. Accordingly, in rendering its

verdict, the jury necessarily decided that Castillo-Basa’s testi-

mony 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 testi-

mony to the contrary was untruthful.

UNITED STATES v. CASTILLO-BASA 4465

II

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 dis-

covery 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 dis-

trict 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 govern-

ment to produce the tape recording 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 govern-

ment 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 “[p]rior to May 2, 1996, I never appeared

before an immigration judge” and “[p]rior 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 memo-

randum that a tape recording of the deportation was not

required to prove the prior deportation. At trial, the govern-

1

Two spellings of “Castillo-Basa” appear in the record. We use the

spelling from Castillo-Basa’s appellate briefs.

4466 UNITED STATES v. CASTILLO-BASA

ment 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 custo-

dian 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 Immigra-

tion Enforcement Agent Eddie Jackson, whose signature

appears on Castillo-Basa’s Warrant of Removal and who tes-

tified that he does not sign such a warrant until he observes

an alien physically depart from the country. Castillo-Basa tes-

tified at trial that he was supposed to appear before an immi-

gration 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 immigra-

tion 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.

2

As we will explain, see infra p. 4473, to prove “deportation,” the gov-

ernment must show more than mere physical removal from the United

States; it must also establish that a deportation proceeding occurred as to

the defendant. This latter element was the one disputed at Castillo-Basa’s

illegal reentry trial.

UNITED STATES v. CASTILLO-BASA 4467

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 clos-

ing argument, 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, gov-

ernment 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 pro-

vided by the responding individual regarding the 1985 convic-

tion, 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 immigra-

tion 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

4468 UNITED STATES v. CASTILLO-BASA

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 dis-

miss 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.

III

The issue before us is not whether Castillo-Basa committed

perjury. Indeed, it would appear that he likely did. The ques-

tion, however, is whether the government is barred from try-

ing him for that wrongful conduct a second time, after a jury

has once decided that the testimony at issue was not false. We

recognize that the Double Jeopardy Clause, like some of our

other constitutional protections, may on occasion result in a

guilty individual’s escaping punishment. That is a price, how-

ever, that we are willing to pay in order to preserve the basic

liberties guaranteed by our Constitution. Were we to permit

the government to try individuals repeatedly for the same

offense, not only the guilty would ultimately be convicted.

Rather, the innocent too would, sooner or later, encounter a

jury that would be persuaded by the prosecutor’s arguments,

especially as the cost — physical, emotional, and financial —

of successive trials would frequently break the will and the

spirit of the unjustly accused and leave them without the

UNITED STATES v. CASTILLO-BASA 4469

strength or ability to conduct a successful defense. In many

cases the practical result would be that innocent persons,

being without the resources to counter the unlimited force

brought against them by the power of the state, would plead

guilty, sometimes to lesser offenses, sometimes to a lesser

number of serious charges. Such a system of justice would be

intolerable in our society. Instead, we have wisely opted for

a process in which an individual who has been adjudged not

guilty may not be charged again for the same offense or held

to answer more than once for conduct that the jury has

decided he did not commit. Under our constitutional rule,

once an issue, such as whether Castillo-Basa told the truth,

has been determined in his favor, rightly or wrongly, by a

jury, he may not again be compelled to defend himself on that

issue. Such is the law under our Bill of Rights, as we will

explain in greater detail below.

IV

[1] The Double Jeopardy Clause does not only bar a second

prosecution on the same charge of which a defendant has been

previously acquitted (or convicted). It also prevents the gov-

ernment from seeking to prosecute a defendant on an issue

that has been determined in the defendant’s favor in a prior

prosecution, regardless of the particular offense involved in

the earlier trial. Ashe v. Swenson, 397 U.S. at 443.3 In Ashe,

3

Castillo-Basa frames his argument on appeal as a claim based on “dou-

ble jeopardy and collateral estoppel.” As the Supreme Court has

explained, collateral estoppel in the criminal context — the protection

against the relitigation of issues previously determined — is “an integral

part of the protection against double jeopardy guaranteed by the Fifth and

Fourteenth Amendments.” Harris v. Washington, 404 U.S. 55, 56 (1971)

(per curiam). Accordingly, we use the terms “collateral estoppel” and

“double jeopardy” interchangeably and deliberately, as well as most

appropriately, bring “double jeopardy atmospherics into the equation.” See

dis. op. at 4492. To the extent that Castillo-Basa argues not that the per-

jury prosecution is barred by the concept of collateral estoppel, but that it

violates the well-known Blockburger test, his argument fails. Perjury and

illegal reentry each contains an element that the other offense does not.

See Blockburger v. United States, 284 U.S. 299, 304 (1932). Our rejection

of this claim is immaterial, however, because we reverse the district court

on the basis of the collateral estoppel aspect of double jeopardy.

4470 UNITED STATES v. CASTILLO-BASA

the Supreme Court held that “[w]here a previous judgment of

acquittal was based upon a general verdict,” and where a

defendant seeks to invoke the collateral estoppel doctrine to

bar a subsequent prosecution regarding a particular issue, a

court is required “to ‘examine the record of a prior proceed-

ing, taking into account the pleadings, evidence, charge, and

other relevant matter, and conclude whether a rational jury

could have grounded its verdict upon an issue other than that

which the defendant seeks to foreclose from consideration.’ ”

Id. at 444 (quoting Daniel K. Mayers & Fletcher L. Yar-

brough, Bix Vexari: New Trials and Successive Prosecutions,

74 HARV. L. REV. 1, 38-39 (1960)). Put another way, “[w]hen

an issue of fact or law is actually litigated and determined by

a final and valid judgment, and the determination is essential

to the judgment, the determination is conclusive in a subse-

quent action between the parties, whether on the same or a

different claim.” United States v. Hernandez, 572 F.2d 218,

220 (9th Cir. 1978) (quoting RESTATEMENT (SECOND) OF JUDG-

MENTS § 68 (Tent. Draft No. 1, Mar. 28, 1973)) (internal quo-

tation marks omitted).4

4

The dissent would restrict the application of collateral estoppel to

issues of “ultimate fact.” See dis. op. at 4491. Such a restriction is com-

pletely without foundation. See Baker by Thomas v. Gen. Motors Corp.,

522 U.S. 222, 233 n.5 (1998) (explaining that collateral estoppel applies

to “issue[s] of fact or law”); United States v. Richard, 892 F.2d 761, 762

(9th Cir. 1989) (same), quoted in dis. op. at 4490; see also Hernandez, 572

F.2d at 221 n.3 (explaining that collateral estoppel applies to issues of

“evidentiary fact,” “ultimate fact,” and “law”). Even were the doctrine

cabined as the dissent would like, there is no support for the dissent’s

cramped and piecemeal definition of the term “ultimate fact.” See dis. op.

at 4491 (defining “ultimate fact” as “an essential element of the crime” or

“the identity of the perpetrator of the offense of which the defendant is

charged”). An “ultimate fact” is simply “[a] fact essential to the claim or

the defense.” BLACK’S LAW DICTIONARY 629 (8th ed. 2004). In this case,

a critical issue that the government seeks to relitigate in the perjury prose-

cution — whether Castillo-Basa was afforded a deportation hearing at

which he was present — clearly concerns facts that, as we will explain,

were essential to Castillo-Basa’s illegal reentry defense.

UNITED STATES v. CASTILLO-BASA 4471

We have implemented Ashe’s charge through a three-step

process:

(1) An identification of the issues in the two actions

for the purpose of determining whether the issues are

sufficiently similar and sufficiently material in both

actions to justify invoking the doctrine; (2) an exam-

ination of the record of the prior case to decide

whether the issue was “litigated” in the first case;

and (3) an examination of the record of the prior pro-

ceeding to ascertain whether the issue was necessar-

ily decided in the first case.

Id. Application of these three steps to Castillo-Basa’s case

makes clear beyond any doubt that collateral estoppel bars the

government’s perjury prosecution.

[2] Beginning with the first step, the central question in

Castillo-Basa’s illegal reentry trial was whether he was

afforded a deportation hearing at which he was present. He

testified that he was not. Likewise, the ultimate issue in the

perjury prosecution would be whether Castillo-Basa lied

when he asserted that he was not afforded, and was not pres-

ent at, any deportation hearing. The issues in the two trials are

undoubtedly both “sufficiently similar” and “sufficiently

material.” Id. That is more than enough to satisfy the first step

of our collateral estoppel test. See, e.g., Richard, 892 F.2d at

762-63 (holding the first step satisfied where the issue in the

first trial was whether the defendant knew that his passengers

were illegal aliens and the ultimate issue in the second trial

was whether he had perjured himself by testifying and offer-

ing a trip log to show that he had not known); Hernandez, 572

F.2d at 220-21 (holding the first step satisfied where the issue

in the first trial was how many hours the defendant spent on

a certain type of work and the ultimate issue in the second

trial was whether he had perjured himself in giving his answer

to that question).

4472 UNITED STATES v. CASTILLO-BASA

[3] The record is similarly clear that the issue whether

Castillo-Basa was afforded a deportation hearing at which he

was present was “litigated” in the illegal reentry trial. Indeed,

Castillo-Basa litigated little else besides this issue. The gov-

ernment does not appear to dispute this fact; instead, it seems

to argue that Castillo-Basa cannot pass the second step of our

collateral estoppel test because, at the illegal reentry trial, it

lacked access to the tape of his deportation hearing, depriving

it of a full and fair opportunity to litigate the issue. The gov-

ernment’s argument fails for two reasons. First, there is no

rule, nor should there be, that an issue is not “litigated” for

purposes of collateral estoppel simply because a party fails to

present all of the evidence that it possesses or that it might

have obtained in support of its case. That is, the second step

of collateral estoppel does not require that an issue be “fully

and fairly” litigated to the maximum extent possible, only that

it be “litigated.” See Harris, 404 U.S. at 56-57 (reversing a

state court’s ruling that a second trial was permissible, despite

collateral estoppel, because a material issue had not been

“fully litigated” after the trial court excluded important incul-

patory evidence (internal quotation marks omitted)). Second,

even if the United States had been deprived of the full oppor-

tunity to litigate the issue of Castillo-Basa’s deportation hear-

ing, it was self-deprived. It simply failed to introduce the

evidence it possessed. No one else was at fault. The govern-

ment’s failure does not justify making an exception to the

Double Jeopardy Clause.

The district court found only that the third step of our col-

lateral estoppel test — the “necessarily decided” requirement

— is not met. It is completely clear from the record, however,

that the question of a deportation hearing and Castillo-Basa’s

presence at it was “necessarily decided” in his illegal reentry

trial, and that he is therefore entitled to prevail with regard to

the third step. To obtain a conviction for illegal reentry, the

government must prove that a defendant (1) is an alien (2)

who was found in the United States without first obtaining

valid permission, and (3) who had been previously deported.

UNITED STATES v. CASTILLO-BASA 4473

United States v. Barragan-Cepeda, 29 F.3d 1378, 1381 (9th

Cir. 1994). Castillo-Basa expressly admitted the first two ele-

ments but strongly contested the third.

[4] To prove previous deportation — the third element and

the only one in dispute at Castillo-Basa’s trial — the district

court instructed the jury that the government must establish

“[(1)] that a deportation proceeding occurred as to [the]

defendant and as a result, [(2)] a warrant of deportation was

issued and [(3)] executed by the removal of the defendant

from the United States.” Once again, Castillo-Basa conceded

two of these sub-elements — the second and third — and

rested his entire case on his denial of the first, testifying that

he had not been afforded, or been present at, a deportation

hearing. Given Castillo-Basa’s concessions, the “single ratio-

nally conceivable” basis on which the jury could have acquit-

ted him, see Ashe, 397 U.S. at 445, was that no deportation

proceeding had occurred with respect to him. Further, as we

explain below, the jury’s decision necessarily entailed a deter-

mination that Castillo-Basa was not present at any such hearing.5

5

Indeed, the Assistant United States Attorney who tried the illegal reen-

try case and who handled the double jeopardy hearing below, speaking on

behalf of the government, conceded in district court that the jury in the

illegal reentry case “absolutely . . . made a determination that [the govern-

ment] did not prove beyond a reasonable doubt that [Castillo-Basa] had

gone before an immigration judge. They definitely made that determina-

tion that the government’s evidence did not meet the burden of beyond a

reasonable doubt on that single element.” Regrettably, the AUSA who

made this truthful and accurate concession in the district court was

replaced with another AUSA for purposes of this appeal. The government,

through the new AUSA, completely reversed its position and argued on

appeal that “Castillo-Basa cannot meet his burden to show that the jury’s

not guilty verdict in his [illegal reentry] trial necessarily decided the ques-

tion of whether he was present at the . . . deportation hearing.” Although

we do not reach the issue, we note that this troubling reversal of position

may violate our established judicial estoppel doctrine. That doctrine pre-

cludes a party from taking a position in a legal proceeding that directly

contradicts an earlier position it took in the same or an earlier proceeding.

See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (quoting Reli-

4474 UNITED STATES v. CASTILLO-BASA

The jury having so determined, collateral estoppel bars the

prosecution of Castillo-Basa at a second trial, for perjury, on

the basis of his testimony as to facts that the jury found to be

true.

The conclusion that collateral estoppel applies is required

by our prior decisions as well as by the Constitution. In

United States v. Hernandez, a case in which the defendant’s

testimony “was part of his defense and . . . had to be weighed

by the jury,” and in which his testimony conflicted with the

government’s account of events, we held that “[t]he court was

required to resolve the conflicting explanations as part of its

decision upon the motion for judgment of acquittal” and thus

“ ‘necessarily’ had to pass upon the truthfulness of his

account.” 572 F.2d at 222. Therefore, we concluded, double

jeopardy barred a subsequent prosecution for perjury. Id. at

219. The government attempts to distinguish cases such as

Hernandez and United States v. Sarno, 596 F.2d 404, 408 (9th

Cir. 1979) — in which we held that collateral estoppel barred

a second prosecution for perjury — by arguing that in those

cases, “a prior jury verdict necessarily decided the issue of the

testifying defendant’s credibility . . . because the defendant’s

testimony was essentially the only evidence presented in con-

trast to the government’s case as to that element.” Here, as in

Hernandez and Sarno, the defendant’s testimony was the

principal evidence offered by the defense. As in those cases,

Castillo-Basa’s “explanation cannot have been simply a col-

lateral issue” because Castillo-Basa was the only witness the

gious Tech. Ctr. v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989) (Hall, Cir-

cuit Judge, dissenting)). The dissent points out, see dis. op. at 4499 (citing

United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc)),

that we are not bound by a party’s concession as to the meaning of a stat-

ute. Here, however, the disputed issue concerns a mixed question of law

and fact regarding what the jury did and did not actually decide under the

controlling law. See Russell, 893 F.2d at 1037-38 (applying judicial estop-

pel to a mixed question regarding the adequacy and availability of a state

court remedy in that particular case).

UNITED STATES v. CASTILLO-BASA 4475

defense presented. 572 F.2d at 222. In any case, as we have

noted, the jury need not directly decide the veracity of a

defendant’s testimony in the first trial for collateral estoppel

to bar a subsequent perjury prosecution — it is enough that

the jury decide an issue that is “sufficiently similar” to an

issue in the prospective second prosecution and that the simi-

lar issues are “sufficiently material” in both instances. Id. at

220.

[5] Collateral estoppel applies when the jury resolves, in a

manner adverse to the government, an issue that the govern-

ment would be required to prove in order to obtain a perjury

conviction at the second trial. The jury at Castillo-Basa’s trial

necessarily decided the issue of whether Castillo-Basa was

afforded a deportation hearing at which he was present. It also

necessarily decided that his statements were not false.

Defense counsel’s closing argument, in which counsel pointed

out other circumstances tending to corroborate Castillo-Basa’s

testimony that he did not receive a hearing, was not itself evi-

dence on which the jury could have based its decision. More-

over, the jury could not have credited defense counsel’s

closing argument while simultaneously discrediting Castillo-

Basa’s testimony. Accordingly, the analysis applied in Her-

nandez and Sarno applies to this case as well.6

6

The decisions the dissent discusses — United States v. Williams, 341

U.S. 58 (1951), and Richard — hardly suggest a contrary result in this

case. The subsequent perjury prosecutions in Williams and Richard did not

violate collateral estoppel because the facts at issue in the perjury prosecu-

tions had not been necessarily decided in the earlier trials. In Hernandez

and Sarno, by contrast, as in this case, they had. The dissent appears to

believe that because it can point to decisions in which subsequent perjury

prosecutions were permitted, such prosecutions are permitted in all cases.

That is obviously not the law. Nor do we rely on the equally incorrect

sophism that because we can point to decisions in which subsequent per-

jury prosecutions were barred, they are always barred. The collateral

estoppel inquiry is more subtle than that, requiring us to “examine the

record of [the] prior proceeding,” including the “pleadings, evidence,

charge, and other relevant matter.” Ashe, 397 U.S. at 444 (quoting Mayers

& Yarbrough, supra, at 38-39) (internal quotation mark omitted).

4476 UNITED STATES v. CASTILLO-BASA

The government relies on three assertions to support its

argument that the issue of Castillo-Basa’s presence at a depor-

tation hearing was not necessarily decided. All three are irrel-

evant and are based on fallacious reasoning. First, the

government asserts that physical presence at a deportation

hearing is not required to prove previous deportation. This

assertion is correct but it is of no assistance to the government

here. The government’s argument that the jury may have

resolved the issue of previous deportation without passing on

the question of Castillo-Basa’s presence at a hearing suffers

from a fatal and insuperable flaw.

[6] The government’s logic, which the dissent reiterates, is

demonstrably faulty — the conclusion does not follow from

its premise. When determining whether an issue was “neces-

sarily decided” for purposes of collateral estoppel, we must

start with the outcome of the previous proceeding; the answer

may differ depending on whether the defendant was convicted

or acquitted, and, here, it necessarily does.7 Whether the gov-

The dissent’s O.J. Simpson hypothetical borders on the absurd. There

is no reason to think that had the jury disbelieved Simpson’s testimony

about not owning the type of shoes that left bloody footprints at the crime

scene, “they certainly would have convicted.” Dis. op. at 4496. The shoe

testimony was hardly the “single rationally conceivable” basis on which

the jury could have acquitted Simpson. Perhaps the dissent forgets that the

glove didn’t fit (or even the unfortunate non-legal reasons on which the

jury may have actually based its decision, including the unprecedented

imbalance in legal skills between the Dream Team and the prosecution).

7

The dissent’s assertion that “[i]f [an] issue is an element of the underly-

ing offense or is an integral part of an element, then the issue was ‘neces-

sarily decided’ in the first trial,” dis. op. at 4493, could not be more

wrong. Consider a crime with two elements, A and B. A jury may acquit

a defendant of this crime by determining that element A has not been sat-

isfied, and pass no judgment whatsoever on element B. Element B need

not be decided in order for the jury to acquit. This alone disproves the dis-

sent’s theory. The dissent’s proposition holds true only when a jury con-

victs a defendant; to convict a defendant of our hypothetical crime, for

UNITED STATES v. CASTILLO-BASA 4477

ernment could convict Castillo-Basa without proving that he

had been physically present at a hearing, which it could, is a

very different question from whether a jury could acquit him

without deciding that “a deportation proceeding [did not]

occur[ ] as to [him].” Here, given the evidence and the argu-

ments before it, the jury could not have acquitted Castillo-

Basa without deciding that he had not been afforded a depor-

tation hearing,8 and thus that he had not been physically pres-

example, the jury must necessarily determine that both elements A and B

are satisfied. Furthermore, even if the dissent’s assertion were correct —

which it is not — it would in no way follow, as a matter of logic, that

when an issue is not an element of an offense, then that issue was not nec-

essarily decided. See dis. op. at 4492. We have often held that an issue was

“necessarily decided” at a trial even when the issue was not an element of

the offense in question. See, e.g., Sarno, 596 F.2d at 408 (holding that the

veracity of the defendant’s testimony had been necessarily decided in a

trial for bribery, of which veracity is not an element).

There are two major problems with the dissent’s assertion that an issue

is “necessarily” decided if and only if it is an element of the offense. First,

were the dissent’s theory correct, the requirement in our case law that the

previously decided issue be “material,” see Hernandez, 572 F.2d at 220,

would be entirely superfluous. Issues that are elements of the offense are

always material. The inclusion of the materiality requirement in our collat-

eral estoppel test therefore demonstrates that the collateral estoppel doc-

trine applies to issues other than elements of the offense. Second, were the

collateral estoppel inquiry as simplistic as the dissent makes it out to be,

requiring only an examination of the elements of the crime, we could con-

duct the inquiry simply by looking to the verdict and to the elements of

the offense. There would be no need to follow the Supreme Court’s

instruction “to ‘examine the record of a prior proceeding, taking into

account the pleadings, evidence, charge, and other relevant matter, and

conclude whether a rational jury could have grounded its verdict upon an

issue other than that which the defendant seeks to foreclose from consider-

ation.’ ” Ashe, 397 U.S. at 444 (quoting Mayers & Yarbrough, supra, at

38-39).

8

In its brief, the government acknowledges that “to meet its burden of

proof of a prior deportation, ‘the government . . . needs to prove that a

deportation proceeding actually occurred with the end result of [the defen-

dant] being deported.’ ” (alteration in original) (quoting United States v.

Medina, 236 F.3d 1028, 1031 (9th Cir. 2001)). As demonstrated earlier,

whether such a hearing was held with respect to Castillo-Basa was the

only disputed material issue in the case.

4478 UNITED STATES v. CASTILLO-BASA

ent at any such hearing. To suggest otherwise, as the

government does here, is nonsensical: no rational jury could

have decided that Castillo-Basa had been present at his depor-

tation hearing yet that no such proceeding had been held.

Because the jury acquitted Castillo-Basa on the ground that

no deportation proceeding had occurred, it must necessarily

have decided that he was not present at any such hearing.

While the jury’s resolution of that issue alone is enough to

satisfy the third component of the collateral estoppel test, it

also follows inexorably that the jury decided that Castillo-

Basa’s testimony — that he was not present at a deportation

hearing — was not untruthful.

[7] The government argues, second, that Castillo-Basa lev-

eled at least eight different attacks on its evidence at the ille-

gal reentry trial — such as “the absence of any tape recording

and transcript of Castillo-Basa’s . . . immigration hearing” or

“the Government’s failure to produce records from the facility

at which Castillo-Basa was held in custody to show who par-

ticipated in immigration proceedings” — and that the jury

may have acquitted Castillo-Basa based on these evidentiary

gaps, without specifically determining the credibility of his

testimony. Every one of Castillo-Basa’s attacks on the gov-

ernment’s case, however, simply sought to bolster the direct

evidence offered by way of his testimony, and each such

argument related to the same underlying question: whether

Castillo-Basa was present at a deportation hearing. Moreover,

even if the jury relied upon one or several of Castillo-Basa’s

other assertions, and not his testimony, it would be impossible

for the jury to have acquitted him without simultaneously

finding that the government had failed to prove that he was

present at a hearing, and that his testimony was not untruthful.

In other words, Castillo-Basa necessarily prevailed on the

issue of whether he was present at a deportation hearing and

thus on whether his testimony was truthful. Even given the

other evidentiary gaps, the jury “was required to resolve the

conflicting explanations” given by Castillo-Basa and the gov-

ernment regarding Castillo-Basa’s presence at a hearing. Her-

UNITED STATES v. CASTILLO-BASA 4479

nandez, 572 F.2d at 222. “Thus, [it] ‘necessarily’ had to pass

on the truthfulness of his account.” Id. This, as well as the

jury’s finding that no hearing was conducted, is enough to

invoke double jeopardy. See id.

Third, the government argues that “the jury may simply

have found that the Government simply failed to meet its bur-

den of proof that Castillo-Basa was deported.” The argument

is not entirely clear. In any event, it fails no matter how we

interpret it. If the government’s argument is, as it appears to

be, that the jury may have found “only” a reasonable doubt as

to Castillo-Basa’s presence at a deportation hearing, rather

than having found to a certainty that he did not attend such a

hearing, the argument is foreclosed by our precedent, as well

as by the most elementary understanding of our system of

criminal justice. All that is required to bar a second criminal

trial on an issue that has been litigated and once decided is a

determination that the government did not prevail on that

issue the first time. An acquittal based on a finding that the

government failed to prove its case beyond a reasonable doubt

is sufficient to bar retrial on any material issue that was liti-

gated and necessarily decided in the trial. See, e.g., Sarno, 596

F.2d at 406, 408. “Decided” in a criminal case always means

only that the jury had a reasonable doubt. Were we now to

conclude otherwise, it would not only fundamentally change

our system of jurisprudence, but it would render every acquit-

tal by a jury meaningless for purposes of double jeopardy: a

jury can always be said to have concluded only that the prose-

cution failed to prove its case beyond a reasonable doubt.9 If,

9

For this reason, it is enough that the jury in Castillo-Basa’s first trial

may have found only a reasonable doubt as to whether Castillo-Basa’s tes-

timony was untruthful. The entire purpose of the perjury prosecution

would be to relitigate this exact finding and to prove that there is no rea-

sonable doubt that Castillo-Basa was untruthful. In other words, because

the first jury was compelled to decide whether Castillo-Basa had had a

deportation hearing, and because it decided that there was at least reason-

able doubt as to the matter (regardless of how it reached that conclusion),

4480 UNITED STATES v. CASTILLO-BASA

rather than making the confounding argument that an acquittal

on the ground of reasonable doubt does not count for purposes

of double jeopardy, and thus, contrary to over 200 years of

constitutional jurisprudence, that the Clause is of no practical

significance whatsoever, the government’s argument is that

the jury in Castillo-Basa’s illegal reentry case may have found

that it failed to prove some other aspect of the illegal reentry

charge, its argument fails because it is contrary to the facts

and the law. A jury is presumed to have followed the instruc-

tions it is given and, as explained above, Castillo-Basa con-

ceded every element of the criminal charge other than the

issue of whether he was afforded, and was present at, a depor-

tation hearing.

V

[8] The government attempts to carve out of the Double

Jeopardy Clause an exception that we have never recognized

and never should. The government suggests that its perjury

prosecution is permissible because, at the first trial, “the

United States lacked crucial evidence of Castillo-Basa’s

untruthfulness” — to wit, the “previously unavailable” tape

recording of the deportation hearing. We reject the govern-

ment’s suggestion for two reasons. First, there is no basis

whatsoever for an exception providing that the proffer of evi-

dence that was in existence at the time of the first trial, but

was not presented by the government at that trial, nullifies the

protections afforded by the Fifth Amendment. Even in civil

litigation, each party bears the consequences of its own inade-

quate litigation efforts and its presentation of insufficient evi-

dence. See Moore’s Federal Practice §§ 132.02[2][d] & [e]

it also necessarily decided that there was reasonable doubt about the gov-

ernment’s contention that Castillo-Basa was lying about his presence at a

hearing — it cannot have remained agnostic on that question. This latter

determination was identical to the one a new jury would be asked to

resolve, only the opposite way, at a perjury trial. Such an attempt at reliti-

gation would necessarily violate the Double Jeopardy Clause.

UNITED STATES v. CASTILLO-BASA 4481

(3d ed. 2005).10 In the criminal context, the Fifth Amendment

bolsters this principle, barring the government from treating

any criminal trial as a “dry run.” Ashe, 397 U.S. at 447.11

Plainly the government could not prosecute a second time a

defendant acquitted of murder because after the acquittal it

discovered the murder weapon bearing the defendant’s finger-

prints. The government’s argument in this case is deserving

of no different treatment. The Fifth Amendment, as inter-

preted in Ashe v. Swenson, bars relitigation of an issue already

decided, no matter how much additional evidence the govern-

ment may wish to introduce at a second proceeding. See Har-

ris, 404 U.S. at 56-57 (reversing a state court decision that,

despite collateral estoppel, permitted retrial because important

inculpatory evidence had been, in the state court’s view,

wrongly excluded); id. (holding that collateral estoppel

applies “irrespective of whether the jury considered all rele-

vant evidence, and irrespective of the good faith of the States

in bringing successive prosecutions”). The government has at

its disposal a wide selection of tools for gathering evidence to

prosecute criminal defendants. Under the Double Jeopardy

Clause, that privilege is accompanied by the concomitant

responsibility to use the tools at the appropriate time. That

time is before or during the first prosecution, not afterwards

in an effort to justify a second attempt to obtain a conviction.12

10

See also Hernandez, a criminal case, in which we set forth with

approval the pertinent Commentary from the Restatement of Law: “An

issue on which relitigation is foreclosed may be one of evidentiary fact,

of ‘ultimate fact’ (i.e., the application of law to fact), or of law. . . . Thus,

for example, if the party against whom preclusion is sought did in fact liti-

gate an issue of ultimate fact and suffered an adverse determination, new

evidentiary facts may not be brought forward to obtain a different determi-

nation of the ultimate fact.” 572 F.2d at 221 n.3 (quoting RESTATEMENT

(SECOND) OF JUDGMENTS § 68 cmt. c (Tent. Draft No. 1, Mar. 28, 1973))

(internal quotation marks omitted).

11

Thus, there is, and could be, no parallel to Federal Rule of Civil Pro-

cedure 60 — which permits relief from a final judgment based on newly

discovered evidence — in criminal cases.

12

In Sarno, we held that a subsequent perjury prosecution was barred

because the defendant prevailed at all three steps of our traditional collat-

4482 UNITED STATES v. CASTILLO-BASA

[9] Second, even under the exception the government pro-

poses — permitting a second trial when it obtains evidence

that was “previously unavailable” — its argument fails com-

pletely in this case. The “United States” did not come into

possession of previously unavailable evidence after the first

trial — the tape recording was in the government’s possession

all along. The government failed to produce the tape before

trial, even when the district court twice ordered it to do so.

Were we to hold that the tape was “previously unavailable”

although it was in the government’s possession during the

illegal reentry trial, our decision would allow government

incompetence (or even insidiousness) to trump the established

protections of the Double Jeopardy Clause. This is not a sen-

sible or acceptable interpretation of our prior decisions, or of

our Constitution.

[10] To hold that evidence is “unavailable” to the govern-

ment when the government possesses it but fails to deliver it

to the attorney handling a particular case would be wrong,

both factually and legally. To do so would be to ignore the

reality of the entity that criminal prosecutions pit individuals

against, the entity from whose overreaching the Constitution

seeks to protect its citizens. At the same time, it would vitiate

eral estoppel test. In an introductory passage, we stated, as the dissent

notes, dis. op. at 4498, that “unless the subsequent perjury indictment is

based upon evidence which was not available at the first trial, it would

appear that the government would be merely trying to recover from its ini-

tial failure to convince the trier of fact of the falsity of defendant’s testi-

mony at the first trial. Such a rehashing of evidence previously presented

would clearly be prohibited by the collateral estoppel doctrine.” Sarno,

596 F.2d at 407 (citing Note, Perjury by Defendants: The Uses of Double

Jeopardy and Collateral Estoppel, 74 HARV. L. REV. 752, 763 (1961))

(citation omitted). We subsequently, as the dissent also notes, firmly dis-

avowed this dicta from Sarno. See Richard, 892 F.2d 762. In any event,

Sarno, while affirming that a rehash of the evidence is prohibited by the

Double Jeopardy Clause, did not determine that when the government

does offer evidence that was unavailable at the first trial, its introduction

is sufficient to circumvent the collateral estoppel doctrine. Nor could it

have done so under the Double Jeopardy Clause.

UNITED STATES v. CASTILLO-BASA 4483

the Constitution’s guarantee that an accused will not be com-

pelled to defend himself more than once against allegations

that have been resolved by a valid and final judgment. A

defendant’s opposing party in a criminal proceeding is not the

state’s attorney, but “the state” itself. Indeed, in an analogous

context, we have held that evidence possessed by the FBI is

in the custody of “the government” although the attorney for

the government has not received it. See United States v. Bail-

leaux, 685 F.2d 1105, 1113-14 (9th Cir. 1982) (Rule 16 dis-

covery). We have also held that the government may violate

the rule of Brady v. Maryland, 373 U.S. 83 (1963), by failing

to disclose exculpatory evidence that is within the possession

of “the government” as a whole, even where the prosecutor

himself does not possess it. See United States v. Blanco, 392

F.3d 382, 388 (9th Cir. 2004). That the government itself, not

the prosecutor, is the adversary party for purposes of the Dou-

ble Jeopardy Clause, and thus that material in the possession

of the government is not “unavailable,” is, under our system

of criminal justice, even more apparent.13

13

The dissent’s citation to United States v. Dipp, 581 F.2d 1323 (9th

Cir. 1978), to suggest that the tape was “not available” is highly inaccurate

and misleading. See dis. op. at 4498. In Dipp, we affirmed a perjury con-

viction obtained subsequent to an earlier acquittal although, in the perjury

prosecution, the government used a tape that it had possessed but had not

produced during discovery for the first trial. Id. at 1324-25, 1328. In

rejecting Dipp’s collateral estoppel defense, however, we concluded only

that the jury at Dipp’s first trial had not necessarily passed on the veracity

of Dipp’s testimony in acquitting him, or on any other issue “sufficiently

similar” to invoke collateral estoppel’s bar. Therefore, under our three-part

test, collateral estoppel did not apply. Id. at 1326. The use of the tape and

its previous availability or non-availability was irrelevant to this part of

our decision. There is no mention of the tape anywhere in the portion of

the opinion that discusses collateral estoppel. The tape is first discussed in

a subsequent section of the opinion that considers Dipp’s prosecutorial

misconduct claim — a claim we rejected because Dipp failed to show that

the government had intentionally withheld the tape in order to induce him

to commit perjury. Id. at 1327. There is, of course, no discussion in Dipp

of whether the “government” and the “prosecutor” are different entities

such that evidence newly available to a “prosecutor” before a second trial,

though in the “government’s” possession all along, justifies disregarding

4484 UNITED STATES v. CASTILLO-BASA

VI

Our decision today does not create a per se bar against per-

jury prosecutions involving defendants who testify and are

acquitted at trial.14 The dissent exhibits its misapprehension of

the doctrine of collateral estoppel when it asserts that “[a]ny

the collateral estoppel doctrine and subjecting a defendant to further jeop-

ardy. In short, Dipp’s collateral estoppel defense failed because he could

not meet our basic three-part test — the question of the tape was wholly

irrelevant to our analysis of that issue and played no part in our decision

to permit a second trial regarding an issue that had not been resolved in

the first.

Dipp did not even remotely consider the question that the government

says it helps us answer: when a jury has necessarily passed on the veracity

of the defendant’s testimony, does the government’s subsequent “discov-

ery” of additional evidence that was in its possession during the first trial

permit it to try the defendant for perjury notwithstanding collateral estop-

pel? Surely, had it done so, its answer would have been No, as it is here.

14

We are not concerned, therefore, with the danger that our decision will

encourage or embolden criminal defendants to perjure themselves at trial

when they otherwise would not have done so. Most defendants, we think,

will be concerned with the impact of their testimony only on the prosecu-

tion that immediately threatens their freedom, and not on potential future

prosecutions for perjury should they be acquitted. In addition, it is difficult

to predict before a trial is completed when collateral estoppel will bar reli-

tigation of particular issues in that trial, making collateral estoppel a

highly uncertain safeguard against a potential perjury prosecution. The far

more pressing danger in cases such as this one is that if we accept the gov-

ernment’s arguments, the prosecution, having failed to convict a criminal

defendant of the charges for which it originally arrested him, will try once

again by bringing similar charges in the form of a perjury case and thus

will succeed in circumventing the Double Jeopardy Clause.

Moreover, the possibility of receiving a sentencing enhancement for

obstruction of justice serves as a sufficient and immediate deterrent to per-

jury by criminal defendants. See U.S. SENTENCING GUIDELINES MANUAL

§ 3C1.1 & cmt. n.4(b) (2006); United States v. Dunnigan, 507 U.S. 87, 98

(1993) (upholding application of a sentencing enhancement based on per-

jury at trial). Where the prospect of an enhanced sentence does not deter

a particular defendant from committing perjury, we do think that the pros-

pect of a separate perjury prosecution will.

UNITED STATES v. CASTILLO-BASA 4485

material lie a defendant uses to get an acquittal . . . will now

be immune from prosecution for perjury because after all, the

jurors must have believed it in order to acquit.” Dis. op. at

4486 (emphasis removed).15 Our ruling establishes no such

automatic immunity. When an acquitting jury has not neces-

sarily or actually decided the question of a defendant’s verac-

ity, or a material issue sufficiently similar to one the

prosecution must establish in the prospective second proceed-

ing, collateral estoppel does not bar a subsequent trial for per-

jury. See, e.g., Richard, 892 F.2d at 762.16 In reality, our

ruling in Castillo-Basa’s favor merely serves to apply the

well-established rule that where an issue actually is decided

in reaching a valid and final judgment, collateral estoppel bars

relitigation of that issue. In broader terms, our decision today

merely enforces the Double Jeopardy Clause as this court has

long interpreted it.

[11] We reverse and remand with instructions to the district

court to dismiss the perjury indictment against Castillo-Basa.

REVERSED.

15

Indeed, it is the dissent that hints at a per se rule by quoting platitudes

about how defendants “must testify truthfully or suffer the consequences.”

Dis. op. at 4486 (quoting United States v. Havens, 446 U.S. 620, 626

(1980)). The dissent makes it sound as if collateral estoppel is never a bar

to a subsequent perjury prosecution of an acquitted defendant, which is

obviously not the law. See, e.g., Sarno, 596 F.2d at 408; Hernandez, 572

F.2d at 222.

16

In both Richard and Dipp, this court permitted perjury prosecutions

subsequent to acquittals because the issues presented in the perjury trials

had not necessarily been decided in the earlier criminal proceedings. The

rule that under such circumstances a perjury trial may be held remains

unchanged under our decision.

4486 UNITED STATES v. CASTILLO-BASA

TROTT, Senior Circuit Judge, dissenting:

The right guaranteed by law to a defendant [to testify

on his own behalf] is narrowly the right to testify

truthfully in accordance with the oath — unless we

are to say that the oath is mere ritual without mean-

ing. This view of the right involved is confirmed by

the unquestioned constitutionality of perjury statutes,

which punish those who willfully give false testi-

mony.

United States v. Grayson, 438 U.S. 41, 54 (1978).

We have repeatedly insisted that when defendants

testify, they must testify truthfully or suffer the con-

sequences.

United States v. Havens, 446 U.S. 620, 626 (1980).

In this case, we must decide whether the doctrine of collat-

eral estoppel precludes the government from prosecuting

Buenaventura Castillo-Basa for perjury arising from what

appears to be a material lie under oath he gave in an earlier

trial, where a jury acquitted him of the crime of being a

deported alien found in the United States. The government

alleges that Castillo-Basa testified falsely in that prior trial

when he insisted that he never attended the deportation hear-

ing that resulted in his physical removal from the United

States. I conclude from the record that Castillo-Basa has not

carried his burden of showing that the precise question of his

non-essential attendance at the deportation hearing was “nec-

essarily decided” by the jury in his previous trial, and there-

fore conclude — as did the trial judge — that collateral

estoppel does not bar the government from prosecuting

Castillo-Basa for perjury.

UNITED STATES v. CASTILLO-BASA 4487

I

In June 2004, Buenaventura Castillo-Basa1 was indicted for

being a deported alien found in the United States, in violation

of 8 U.S.C. § 1326. The elements of this crime are (1) that the

defendant is an alien, (2) that he was deported from the

United States, and (3) that he reentered without the permis-

sion of the proper authorities. See 9th Cir. Crim. Jury Instr.

9.5 (2007). As the government correctly argues, an alien may

be deported in absentia. United States v. Hinojosa, 206 F.3d

832, 836-37 (9th Cir. 2000) (affirming § 1326 conviction

founded upon deportation entered in absentia). Thus, pres-

ence at the deportation hearing is not an element of this crime.

The defense conceded during his trial that Castillo-Basa is an

alien and that he was found within the United States without

permission to enter. The only disputed element of the charge

was whether Castillo-Basa had previously been deported.

The government informed the district court that an audio

tape recording of Castillo-Basa’s deportation hearing existed,

but that the tape recording could not be located. The district

court ordered the government to produce the tape recording,

but, after further searching, the government could not find it.

After the government disclosed that it could not locate the

tape recording, Castillo-Basa announced that he had never

attended a deportation hearing, which, he argued, created an

inference that he had not been deported. To support this the-

ory, Castillo-Basa submitted a signed declaration in support

of a motion in limine to dismiss the indictment stating that he

never appeared before an immigration judge prior to his phys-

ical removal from the United States. Relying on official docu-

ments and testimony indicating that Castillo-Basa had been

deported, as described in the majority opinion, the district

court denied the motion to dismiss.

1

Two spellings of “Castillo-Basa” appear in the record. I use the spell-

ing from Castillo-Basa’s appellate briefs.

4488 UNITED STATES v. CASTILLO-BASA

Castillo-Basa testified in his own defense at trial. He told

the jury that he was served with a notice to appear at his April

30, 1996, deportation hearing, but that on that day, no one

came to get him out of his cell. Castillo-Basa’s attorney iden-

tified Castillo-Basa’s testimony as only one of eight reasons

why the government failed to prove that Castillo-Basa had

been deported. The defects counsel identified with respect to

the elements of deportation included:

1. No fingerprint or photograph on the deportation

order;

2. The government’s failure to call the Immigra-

tion Judge as a witness;

3. The government’s failure to present the “master

list” from the proceedings, which should have

included Castillo-Basa’s name if he had been

deported;

4. The absence of a tape recording or transcript of

the deportation proceedings;

5. The failure to produce detention records; and

6. The “fact” that persons in deportation hearings

often give false names.

The jury returned a general verdict form finding Castillo-

Basa not guilty.

Less than two weeks after the jury returned its verdict, the

government discovered the tape recording of Castillo-Basa’s

deportation hearing. The government alleges that all of the

information heard on the tape recording indicates that the

individual who responded to the questions directed at

Castillo-Basa actually was Castillo-Basa. On the tape, the

Immigration Judge read the names of twenty-four individuals

UNITED STATES v. CASTILLO-BASA 4489

present at the deportation hearing, including “Buenaventura

Castillo-Basa.” The Immigration Judge then questioned each

person individually. When he read Buenaventura Castillo-

Basa’s name, an individual responded. That individual admit-

ted that he was convicted in December 1985 in San Diego

County for a serious crime that he committed in August 1985,

for which he received a sentence of seven years. The individ-

ual indicated also that he was imprisoned for ten years and

eight months. The Immigration Judge ordered that individual

deported.

Buenaventura Castillo-Basa, the defendant in this case, had

in fact been arrested in August 1985 in San Diego County for

robbery with use of a weapon, robbery, sodomy with force,

oral copulation with force, and kidnaping. He pleaded guilty

and was convicted in December 1985. The highest sentence

that he received on a single count was seven years for the sod-

omy charge. The sentences were ordered to run consecutively

for a total of twenty-one years. Finally, Castillo-Basa served

ten years and eight months in prison.

After reviewing the tape recording, the government decided

to pursue perjury charges against Castillo-Basa. The govern-

ment presented the tape recording to a grand jury, which

returned a two count indictment against him. The first count

alleges that Castillo-Basa committed perjury in violation of 18

U.S.C. § 1621(2) when he submitted a declaration indicating

that he had never appeared before an immigration judge prior

to May 2, 1996. The second count alleges that he committed

perjury in violation of 18 U.S.C. § 1621(1) when he testified

at trial that he had not appeared before an immigration judge

in April or May of 1996.

On September 9, 2005, Castillo-Basa filed a motion based

upon grounds of double jeopardy and collateral estoppel to

dismiss the indictment. The district court denied the motion,

concluding that the issue of Castillo-Basa’s veracity with

regard to whether he attended the deportation hearing was not

4490 UNITED STATES v. CASTILLO-BASA

necessarily decided in the first trial. The district court deter-

mined also that Castillo-Basa had taken unfair advantage of

the government’s inability to locate the tape recording by giv-

ing perjured testimony, and in so doing, violated public policy

and denigrated the integrity of the judicial process. The dis-

trict court certified the issue for interlocutory appeal, and

Castillo-Basa now appeals the denial of the motion to dismiss

the indictment.

II

Castillo-Basa argues that collateral estoppel bars the gov-

ernment from prosecuting him for perjury because the jury

from his previous trial, by acquitting him, necessarily deter-

mined that Castillo-Basa was not present at the deportation

hearing. I disagree.

Collateral estoppel applies to criminal cases through the

Fifth Amendment protection against double jeopardy. Ashe v.

Swenson, 397 U.S. 436, 443-46 (1970). Collateral estoppel

differs markedly from double jeopardy itself.2 The doctrine

“bars a perjury prosecution after acquittal on substantive

charges when an issue of fact or law [upon which the perjury

charge is based] is actually litigated and determined by a final

and valid judgment, and the determination is essential to the

judgment.” United States v. Richard, 892 F.2d 761, 762 (9th

Cir. 1989) (per curiam) (quotation marks and citation omit-

ted). Moreover, when the term “issue” is used in this context,

2

The Supreme Court has recognized that collateral estoppel is a separate

doctrine from double jeopardy. Ashe, 397 U.S. at 442-43. Double jeopardy

protects against a second prosecution for the same offense after acquittal

or conviction. “It would be no service to the administration of justice to

enlarge the conception of former jeopardy to afford a defendant immunity

from prosecution for perjury while giving testimony in his own defense.”

United States v. Williams, 341 U.S. 58, 62 (1951). Castillo-Basa’s double

jeopardy argument fails because the elements of perjury are different from

the elements of being a deported alien found in the United States. See

Blockburger v. United States, 284 U.S. 299, 304 (1932).

UNITED STATES v. CASTILLO-BASA 4491

it refers not to secondary or subsidiary points of contention in

a trial, but normally to “issues of ultimate fact.” “[In Ashe v.

Swenson,] [w]e defined the collateral-estoppel doctrine as

providing that ‘when an issue of ultimate fact has once been

determined by a valid and final judgment, that issue cannot

again be litigated between the same parties in any future law-

suit.’ ” Dowling v. United States, 493 U.S. 342, 347 (1990)

(quoting Ashe, 397 U.S. at 443) (emphasis added). What is an

issue of “ultimate fact?” It is either (1) an essential element

of the crime, or (2) the identity of the perpetrator of the

offense of which the defendant is charged, not just a dispute

about a fact from which inferences might be drawn about the

elements. The Court did not say “an issue of fact,” it said an

issue of “ultimate fact.”

In cases involving a prior judgment of acquittal announced

in a general verdict, a three-step process determines whether

collateral estoppel applies:

(1) An identification of the issues in the two actions

for the purpose of determining whether the issues are

sufficiently similar and sufficiently material in both

actions to justify invoking the doctrine; (2) an exam-

ination of the record of the prior case to decide

whether the issue was “litigated” in the first case;

and (3) an examination of the record of the prior pro-

ceeding to ascertain whether the issue was necessar-

ily decided in the first case.

United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.

1978). The defendant bears the burden of proving that collat-

eral estoppel applies. Dowling, 493 U.S. at 350-51 (1990); see

also Richard, 892 F.2d at 763; United States v. Gugliaro, 501

F.2d 68, 70 (2d Cir. 1974).

We need not decide whether Castillo-Basa’s claim satisfies

the first two requirements of this test, because his defense

runs aground on the third: whether the issue was “necessarily

4492 UNITED STATES v. CASTILLO-BASA

decided” in the first case. Did the jury “necessarily decide”

one way or the other — as an issue of ultimate fact —

whether Castillo-Basa attended his deportation hearing? My

answer is “no.”

I note that we are applying part of a test that is comprised

of two words, not one. The words are (1) “necessarily” and

(2) “decided.” In Ashe, the two words are “actually deter-

mined.” 397 U.S. at 442. With all respect, where the majority

opinion’s analysis errs is in failing to accord sufficient weight

and meaning to “necessarily.” In my view, the addition of this

demanding modifier means something, and it means at a

minimum that short of a special verdict, and as indicated in

Ashe and Dowling, disputes that are not themselves issues of

ultimate fact, i.e., including the identity of the perpetrator ele-

ments of the crime charged are not “necessarily” decided by

a general verdict, one way or the other. My colleagues are

certainly correct that not guilty verdicts are sometimes diffi-

cult to decipher, but collateral estoppel — or issue preclusion

— is different from double jeopardy. Their analysis, however,

blurs the distinction and mistakenly brings unwarranted dou-

ble jeopardy atmospherics into the equation where they do not

belong, highlighting those principles in the first sentence of

their opinion as well as in the opening paragraphs. The major-

ity opinion apparently disfavors trying anyone twice, no mat-

ter what the distinctions are, and I’m afraid this basic premise

drives the result in this case. Double jeopardy per se does not

protect a perjurer from a subsequent prosecution for perjury,

even if he is an acquitted defendant; and collateral estoppel

saves a perjurer only if somehow the precise issue he lied

about was “actually determined” as an issue of ultimate fact

by the fact finder.

The proof of this pudding is in the unconvincing argument

based upon inconclusive circumstantial evidence that the jury

had to have decided that Castillo-Basa was telling the truth

about his absence from the hearing in order to acquit. My col-

leagues claim that the jury “necessarily decided that Castillo-

UNITED STATES v. CASTILLO-BASA 4493

Basa’s statements were not false.” I do not agree. It is just as

likely that all that happened is that the defendant’s testimony

raised circumstantially a reasonable doubt in the minds of the

jurors that he had been deported, not that they “actually deter-

mined” that he did not attend the hearing. I would concede

that if the perjury charge were based on his testimony to the

effect that he was “not deported,” collateral estoppel might

apply, but the perjury allegation is based on his specific testi-

mony that he did not attend the hearing. In the present equa-

tion, and given the importance of the truth to our justice

system, therein resides a difference with a distinction. To con-

clude otherwise ignores strong public policy consideration. As

my colleagues concede, there is sufficient reason to believe

that Castillo-Basa has gamed the process and cheated an

acquittal from the system.

Three sets of facts and circumstances demonstrate that the

jury did not “necessarily decide” (or “actually determine”)

whether Castillo-Basa attended the deportation hearing.

First, we evaluate the district court’s instructions to the

jury. See United States v. Sarno, 596 F.2d 404, 408 (9th Cir.

1979) (evaluating the jury instructions to determine what the

jury “necessarily decided”). If the issue is an element of the

underlying offense or is an integral part of an element, then

the issue was “necessarily decided” in the first trial. Here,

Castillo-Basa’s presence at the deportation hearing was nei-

ther an element of the crime nor an integral part of an ele-

ment. The jury instruction reads,

As to the element of a prior deportation, the govern-

ment must prove beyond a reasonable doubt that a

deportation proceeding occurred as to that defendant

and as a result, a warrant of deportation was issued

and executed by the removal of the defendant from

the United States.

Indeed, the district court rejected Castillo-Basa’s request to

give an instruction that would have made his presence at the

4494 UNITED STATES v. CASTILLO-BASA

deportation hearing an element of the crime. The rejected

instruction reads,

In order for you to find that Mr. Castillo was

deported, the government must prove beyond a rea-

sonable doubt that an [sic] Mr. Castillo was physi-

cally present at a hearing before an immigration

judge, and that the immigration judge entered a final

order of deportation against Mr. Castillo.

(emphasis added). The district court’s rejection of this pro-

posed instruction demonstrates that the jury did not “necessar-

ily decide” whether Castillo-Basa was present at his

deportation hearing.

Second, we consider the trial court’s response to jury ques-

tions to determine whether it sheds light on what the jury

“necessarily decided.” See Sarno, 596 F.2d at 408 (evaluating

the jury’s questions to determine what the jury “necessarily

decided”). During deliberations, the jury submitted a question

to the trial judge. The judge responded,

The first question is, in a deportation hearing must a

defendant be present in front of a judge when not in

absentia?

The answer is as follows: No, but you can consider

whether or not the defendant was present before the

immigration judge in deciding whether or not a

deportation proceeding actually occurred as to the

defendant.

(emphasis added). In other words, the jury was not required

to decide whether Castillo-Basa was present at the hearing,

but the jury could consider by way of inference his assertion

of absence as a factor in determining whether he had been

deported. This evidence, coupled with the rejected jury

instruction, demonstrates convincingly that the jury did not

UNITED STATES v. CASTILLO-BASA 4495

“necessarily decide” whether Castillo-Basa attended his

deportation hearing.

Third, Castillo-Basa’s attorney gave the jury additional sig-

nificant reasons to acquit based upon other alleged flaws in

the government’s case, such as no photograph or fingerprint

on the Immigration Judge’s Order of Deportation, demonstrat-

ing (1) in counsel’s words that his client “was not, in fact,

deported,” and (2) that the government has simply failed to

prove its case beyond a reasonable doubt.

The case of United States v. Williams supports my analysis.

341 U.S. 58 (1951). In that case, the police officer defendants

had testified in a previous trial that they had not seen another

defendant, Williams, abuse a prisoner. The three were acquit-

ted of the abuse which they allegedly aided and abetted. How

could they aid and abet something they did not even see?

Then, the government charged the three with perjury on the

ground that they lied under oath about not witnessing the

abuse. The district court dismissed the perjury indictment

against the three, reasoning that “the jury’s finding that [the

three defendants] had not been guilty of the substantive

offenses in the first trial, was a determination of their inno-

cence ‘whether as principals or accessories,’ and therefore

none of the three could be found guilty of the charge made by

the perjury indictment: testifying falsely that they had not

seen or observed Williams beating the victims.” 341 U.S. at

61. The Supreme Court disagreed with both the district court

and with counsel on appeal, who argued that the issue at the

heart of the perjury trial had been “necessarily determined” by

the acquittal. The Court said,

We do not think the facts bring any of these defen-

dants within the protection of res judicata . . . The

substantive former charge against appellees here was

abuse of a prisoner by police officers under color of

state law. An acquittal of such a crime or of aiding

and abetting was certainly not a determination that

4496 UNITED STATES v. CASTILLO-BASA

[the three officers] did not see Williams assaulting

the prisoners.

Id. at 64-65.

Richard is to the same effect. 892 F.2d 761. Richard, a taxi

driver, was tried by a jury for transporting illegal aliens. He

offered a purported log of his trips in his defense. The govern-

ment contested the authenticity of the log, but Richard was

acquitted nonetheless. Subsequently, Richard was charged

and tried with respect to the use of the log at his trial with giv-

ing false testimony, obstructing justice, and using a false doc-

ument. Against these charges, he asserted that the jury in his

previous trial had “necessarily determined” that the log was

authentic. We disagreed, concluding that the authenticity of

the log had not necessarily been determined by his acquittal.

I suppose that had O.J. Simpson testified in his criminal

case that he never owned the type of shoes that left bloody

footprints at the scene of the slaughter of Nicole Simpson and

Ron Goldman, he could not have been prosecuted for perjury

when dozens of photographs showed up after the trial show-

ing him wearing those shoes. The jury must have decided in

order to acquit him that he did not own the shoes, because if

they had disbelieved him, they certainly would have con-

victed — or so goes the fallacious logic and argument.

Had Simpson testified that he could not have been the killer

because he was in Cleveland at the time of the crimes, could

he not be prosecuted for demonstrable perjury about being in

Cleveland because he had been acquitted of murder? Do the

rules of logic and fair inference dictate that the jury “actually

determined” that he was in Cleveland in order to acquit him

of murder? The jury can be fairly said to have determined that

he was not the murderer, an element of the crime, but not that

he was in Cleveland. See Lipscomb v. United States, 33 F.2d

33 (8th Cir. 1929) (An acquittal from a charge occurring in a

specified city on a specified date was not a bar to the defen-

UNITED STATES v. CASTILLO-BASA 4497

dant’s subsequent prosecution for perjury at the trial arising

from his testimony that he was in another city on the day in

question.). Castillo-Basa’s claim that he was not at the depor-

tation hearing is no different than a claim that he was some-

place else — such as Cleveland.

Ashe v. Swenson presents a distinguishable scenario from

the circumstances in this case. 397 U.S. 436. There, the gov-

ernment tried Ashe for the same robbery of participants in a

poker game of which he had previously been acquitted, the

only difference being that the named victim in the second case

was different from the victim in the first. The Supreme Court

concluded that the jury by its verdict in the first case had

determined that he was not one of the robbers, an issue of

ultimate fact, and therefore that he could not be tried again on

the theory that yes, he was one of the robbers. Here, to repeat,

Castillo-Basa is not being charged with perjury because he

said he was not deported, but because he said he did not

attend a court hearing. Attendance at a deportation hearing is

not necessary for deportation. This variance to me is enough

degrees of separation to remove the perjury case from the

reach of collateral estoppel. Nevertheless, under the majori-

ty’s theory, both the substantive crimes and the perjury

needed somehow to have been prosecuted together, or perjury

is on the house. How do you amend an indictment during trial

and charge perjury on the basis of a defendant’s immediate

testimony? Might that be slightly heavy handed? The majori-

ty’s approach unwittingly insulates perjury from the reach of

the law. After United States v. Booker, 543 U.S. 220 (2005),

a sentencing court probably cannot enhance the sentence of a

guilty defendant for perjury during the trial for the lack of a

jury finding on the issue, and an acquitted defendant now

skates.

III

Castillo-Basa argues, however, that the government would

be merely “rehashing” old evidence before a new jury if it

4498 UNITED STATES v. CASTILLO-BASA

were allowed to proceed with the perjury trial. In Sarno, we

noted that “unless the subsequent perjury indictment is based

upon evidence which was not available at the first trial, it

would appear that the government would be merely trying to

recover from its initial failure to convince the trier of fact of

the falsity of defendant’s testimony at the first trial.” 596 F.2d

at 407 (internal citations omitted). We concluded, “Such a

rehashing of evidence previously presented would clearly be

prohibited by the collateral estoppel doctrine.” Id. Although

we subsequently dismissed as dicta this language from Sarno,

Richard, 892 F.2d at 763, we need not resolve that issue here

because the government has new material evidence that was

not presented during the first trial—the tape recording.

Although the misplaced tape recording was in the govern-

ment’s possession during the first trial, the district court in the

current perjury trial expressly found that the tape recording

was unavailable to the government for use in the prior trial.

Specifically, the district court stated,

[T]he government has evidence that was not avail-

able to it at the first trial. Now, I take the argument

that the evidence was in the government’s posses-

sion seriously. However, the court finds that the evi-

dence was not available to the government during

the first trial.

As we have previously concluded, the fact that evidence was

in the government’s possession during the first trial does not

bar the government from using the evidence in a later trial for

perjury. See United States v. Dipp, 581 F.2d 1323, 1326, 1330

(9th Cir. 1978) (affirming defendant’s perjury conviction even

though the tapes used to prove perjury were in the govern-

ment’s possession during the initial trial and were requested

by the defendant). Accordingly, the government is not merely

“rehashing” evidence from the first trial because it may use

the tape recording as evidence in the perjury trial. “To con-

strue Sarno so broadly [as contended by Castillo-Basa] would

UNITED STATES v. CASTILLO-BASA 4499

create a ‘per se bar’ to subsequent perjury prosecutions.”

Richard, 892 F.2d at 763.

IV

I am not moved by the Assistant United States Attorney’s

superfluous offering during oral argument before the district

court that the jury “necessarily decided” whether Castillo-

Basa was present at the deportation hearing. The district

court, not the parties, is charged with the task of examining

“the record of the prior proceeding to ascertain whether the

issue was necessarily decided in the first case.” Hernandez,

572 F.2d at 220. While the parties may aid the court in evalu-

ating the record from the prior proceeding, the parties cannot

complete this task for the court. See United States v. Ogles,

440 F.3d 1095, 1099 (9th Cir. 2006) (en banc) (“We are not

bound by a party’s concession as to the meaning of the law,

even if that party is the government and even in the context

of a criminal case.”).

V

“The requirement of sworn testimony, backed by punish-

ment for perjury, is as much a protection for the accused as

it is a threat. All testimony, from third-party witnesses and the

accused, has greater value because of the witness’ oath and

the obligations or penalties attendant to it.” United States v.

Dunnigan, 507 U.S. 87, 97 (1993) abrogated on other

grounds, United States v. Wells, 519 U.S. 482 (1997). An

acquittal does not constitute an automatic bar against a subse-

quent prosecution for perjury during that trial. “[A] defen-

dant’s right to testify [in his own defense] does not include a

right to commit perjury.” Dunnigan, 507 U.S. at 96. It does

now. My colleagues’ analysis is tantamount to overruling this

basic precept. Any material lie a defendant uses to get an

acquittal whether it relates to an element of the crime or the

identity of the perpetrator, will now be immune from prosecu-

4500 UNITED STATES v. CASTILLO-BASA

tion for perjury because after all, the jurors must have

believed it in order to acquit.

CONCLUSION

I believe that the collateral issue identified in the indict-

ment Castillo-Basa now seeks to dismiss was not “necessarily

decided” because (1) his presence at the deportation hearing

was not an element of the crime charged or an issue of “ulti-

mate fact,” (2) the district court rejected a proposed instruc-

tion that would have required the jury to decide whether he

was present at the hearing, or not, (3) the district court

instructed the jury that it need not resolve the presence or

absence dispute, and (4) “a rational jury could have grounded

its verdict upon an issue other than that which the defendant

seeks to foreclose from consideration.” Ashe, 397 U.S. at 444

(quotation marks and citation omitted). The best one can say

for Castillo-Basa on the record is that the jury was not con-

vinced beyond a reasonable doubt that he had been deported,

not that they believed his lie about not attending the hearing

against a mountain of evidence to the contrary.

Accordingly, because I conclude that collateral estoppel

does not bar the government from prosecuting Castillo-Basa

in this case, I respectfully dissent.