U.S. v. Sandoval-Gonzalez, No. 09-50446 (4-25-11) (Reinhardt with Kozinski and Wardlaw). In a 1326 prosecution, is "derivative citizenship" an affirmative defense? No, answers the 9th. In this prosecution, the defendant, who was born in Mexico but whose father was an American citizen, cross-examined an agent about derivative citizenship. The government argued that it was improper, and at jury instruction time, took up the court's invitation to argue that there was a presumption that a person born abroad was an alien. Only one thing wrong with such a presumption: it was wrong. The government had to prove alienage as an element. A presumption of alienage shifted the burden to the defendant. Derivative citizenship, moreover, is not an affirmative defense; it goes to proof of the alienage. The error was not harmless. However, the defendant does not get a Rule 29 acquittal.

Congratulations to Hanni Fakhoury of the Federal Defenders of San Diego.

Miller v. Oregon Board of Parole and Post-Prison Supervision, No. 07-36086 (4-25-11)(Burns, D.J. S.D, Calif., with Paez and Clifton). The 9th finds that an Oregon statute does indeed create a liberty interest in early eligibility for parole. Although there is a liberty interest, under Swarthout v. Cooke, 131 S. Ct. 859 (2011), a federal court only looks to whether procedural due process was followed rather than whether the decision as to eligibility was correct. Oregon gave procedural due process.