Federal Evidence Review

Upon remand of defendant's alien re-entry case for violation of the hearsay rule and his retrial and conviction of the same offense, reverse and remanding because the trial court misapplied the law of the case doctrine to preclude evidence of defendant's derived citizenship, thereby leading to "a number of unconstitutional results" including violating the defendant's right to confront witnesses, in United States v. Marguet-Pillado, __ F.3d __ (9th Cir. Aug. 12, 2011) (No. 10-50041)

Occasionally the Federal Evidence Blog looks back at cases reported previously to assess the nature of any continuing evidentiary difficulties. Last month, the Ninth Circuit again reversed and remanded an alien reentry case which previously had been remanded for retrial in light of admitting evidence in violation of the hearsay rule. See Ninth Circuit Reverses After Erroneous Admission Of Statement Under Public Or Business Records Exception - March 31, 2009. This time the remand concerned a different sort of evidence quandary -- an apparent conflict between the law of the case doctrine (that "when a court decides upon a rule of law, that decision should continue to govern the same issues in subsequent proceedings") and the Sixth Amendment Confrontation Clause.

In the case, upon remand to the district court in 2009 ("Marguet I") the defendant was retried and convicted of being a removed alien found in the country ("Marguet II"). He appealed, contending that the trial court erred by refusing to give his requested jury instruction which would have allowed him to argue evidence that he was not guilty because he had "derivative citizenship." The court refused to give this instruction, reasoning that it was precluded by the "law of the case" doctrine and that the panel in Marguet I had already rejected the defendant's argument and so the trial judge could not "give an instruction facilitating that conclusion [of derivative citizenship]. In other words, the district court seemed to think that the jury could not reach a conclusion that conflicted with the law of the case -- that the defendant was not entitled to derivative citizenship.

The Ninth Circuit agreed that application of the law of the case doctrine to the defendant's case could place it in conflict with that of confrontation:

Indeed, we reached the conclusion that Marguet–Pillado was an alien in the first appeal because Marguet–Pillado admitted that Michael Marguet was not his biological father on his appeal. On the basis of those facts, Marguet I held that Marguet–Pillado was not entitled to derivative citizenship. But that earlier guilty verdict has been vacated and, as Marguet–Pillado argued to the district court, he did not stipulate to the lack of a biological relationship in the second trial. Indeed, in Marguet I, where Marguet–Pillado presented a legal argument for his theory of derivative citizenship, it made some tactical sense for him to admit the lack of biological relationship on his appeal. That admission, however, should not preclude Marguet–Pillado from holding the government to its burden of proof on each element of the offense in a later trial. Given the evidence in the record indicating that Marguet–Pillado may have been a derivative citizen and the lack of contrary evidence admitted at trial, we find that the district court abused its discretion in deciding that the proposed instruction had no foundation in the evidence.

Marguet-Pillado, __ F.3d __ (citing United States v. James, 987 F.2d 648, 651 (9th Cir. 1993) (stipulation as to element of crime could not be taken into account when it was “never entered into evidence or read to the jury”); United States v. Hinkson, 585 F.3d 1247, 1261–62 (9th Cir. 2009) (en banc))

According to the Circuit, the law of the case doctrine took back seat to the goals of the Confrontation Clause:

Reliance upon the law of the case doctrine in this context was mistaken. The use of such a doctrine potentially leads to a number of unconstitutional results, including violating Marguet–Pillado's right to confront witnesses and his right to have a jury decide whether the government has proven the elements of a crime beyond a reasonable doubt. Although there is no clear precedent in this Circuit as to the applicability of the law of the case doctrine in the criminal context, we previously held that offensive collateral estoppel could not be used to prove facts or elements against a criminal defendant. Indeed, “[i]n federal criminal trials, the United States may not use collateral estoppel to establish, as a matter of law, an element of an offense or to conclusively rebut an affirmative defense on which the government bears the burden of proof beyond a reasonable doubt.”
* * *
The law of the case doctrine cannot constitutionally be applied to bar the use of a defendant's proposed jury instruction where that instruction is legally correct and supported by a foundation in the evidence, particularly where that instruction is intended to hold the government to its burden of proof on an element of a crime. To do so in that circumstance would practically act as an impermissible directed verdict on an element of the offense. Further, and aside from the constitutional question, the law of the case cannot validly be applied where “substantially different evidence was adduced at a subsequent trial.” Id. That exception to the law of the case doctrine applies here because the evidence admitted on the issue of alienage at the second trial was different than at the first.

Marguet-Pillado, __ F.3d __ (footnote omitted; citing United States v. Arnett, 353 F.3d 765, 766 (9th Cir. 2003) (en banc) (per curiam); United States v.Smith–Baltiher, 424 F.3d 913, 920 (9th Cir. 2005); see also United States v. Gallardo–Mendez, 150 F.3d 1240, 1244 (10th Cir. 1998) ( “[W]hile ‘wise public policy and judicial efficiency’ may be sufficient reasons to apply collateral estoppel in civil cases, they do not have the same weight and value in criminal cases.”); United States v. Pelullo, 14 F.3d 881, 897 (3d Cir. 1994) (holding that defendant's prior conviction following jury trial for wire fraud did not prevent re-litigation of the same crime as predicate offense in later RICO trial); United States v. Harnage, 976 F.2d 633, 636 (11th Cir.1992) (rejecting the use of collateral estoppel against criminal defendants); Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (stating that law of the case should not be applied where it would create a “manifest injustice”)

The logic of the circuit's reasoning that the law of the case conflicted with the defendant's right to confrontation by:

analogizing to a more familiar context makes the district court's error more clear. For example, in felon-in-possession cases under 18 U.S.C. § 922, often the fact that the defendant was previously convicted of a felony is known as a factual matter (in the colloquial sense) to the parties, the lawyers, and the court. Nonetheless, the government still must carry its burden of proving to the jury that the defendant was in fact previously convicted of a felony. In disputing this element, the defendant may not present false information (such as flatly denying the previous conviction if he took the stand), but he would be permitted to argue to the jury that the government has failed to prove beyond a reasonable doubt that he was convicted of the previous offense.

Marguet-Pillado, __ F.3d at __, n.3.

The Ninth Circuit panel divided in this assessment of a possible conflict between confrontation and the law of the case doctrine. Circuit Judge N.R. Smith noted his dissent was premised on the conclusion that "[w]hile Marguet–Pillado is entitled to have a jury determine whether he is an alien, he is not entitled to a jury instruction contrary to the law propounded by our circuit in United States v. Marguet–Pillado, 560 F.3d 1078 (9th Cir.2009) ( Marguet–Pillado I ). Therefore, I must dissent.