US v. Castillo-Basa, No. 05-50768. This case from the Ninth Appears not to make sense. Then it makes sense. Then you realize its sheer elegance. It involves double jeopardy. In includes non-lawyerly references to OJ Simpson by a dissent that wants to give the government unlimited bites at the apple.
Some time ago the defendant snuck into the US. He was found, put into deportation proceedings – which included a hearing – and deported.
Then, he came back to the US.
The government charged him with illegal re-entry. The governments told his lawyer that they had a tape of the deportation proceedings. At trial the government claims to have “lost” the tape. (Judge Rheinhardt puts “lost” in quotes, too. It seems that people have reasons for not trusting the government. It is suggested that he might have been deported “in absentia.”) The District Court bends over backwards to help the government, holding that only a hearing need be held, and personal presence isn’t required.
The defendant goes to trial on the illegal re-entry charge. He files a sworn declaration and testifies that there never was a deportation hearing (or at least one that he was present at). The jury buys his story. After all, the government saves all kinds of crap. Why did they lose such a key piece of evidence that they claimed to have had in the past. So, he is acquitted. This almost never happens, and it sends the government into a tizzy.
So, suffering a loss in the District Court, the government miraculously “finds” the tape. Figuring that our jails are dangerously undercrowded, they indict him for perjury. The District Court (John A. Houston) says all sorts of silly things about a defendant having taken advantage of the government (like the government doesn’t take advantage of jailed defendants) and it violating public policy to take advantage of the government’s incompetence (like the government doesn’t take advantage of defendants’ inability to produce evidence). Essentially the District Court tries to create a public policy exception to the double jeopardy clause.
The Ninth disagrees. The court holds that the issue of whether there was a hearing was determined by the jury in the first trial, and the government should find someone else to put in jail. The opinion is fairly scholarly and discusses the roots of the double jeopardy clause, and explains how it means that collateral estoppel bars the relitigation of this issue by the government.
But, when you think about it, it all makes sense. The government had to prove some fact to the jury. It failed. Why should it get to do it again?
Judge Trott dissents and writes some silly crap about OJ Simpson. It is embarrassing to have a judge resort to such a pop-culture legal reference.
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