U.S. v. Espinoza-Baza, No. 09-10398(8-4-11) (Wallace with Noonan and Silverman).

Alas, what U.S. v. Sandoval-Gonzalez, 642 F.3d 717 (9th Cir. 2011) gives defendants for derivative citizenship defenses, this case takes away under Fed. R. Evid. 403 discretion. Sandoval-Gonzalez holds "that a criminal defendant faces no burden whatsoever regarding the issue of derivative citizenship in a prosecution for an offense of which alienage is an element." Id. at 723. Here, the defendant asked to present evidence that his maternal grandfather was born in the United States, and so the defendant might have derivative citizenship. Surely, asks this panel rhetorically, this could not be an open gate to all evidence. There must be some evidentiary bar to confusing, unfair, misleading, and unfairly prejudicial evidence. Fed. R. Evid. 403 is such a bar, and so it was here. The 9th holds that the district court did not abuse its discretion in using 403 to keep out the testimonial evidence. The evidence was of little probative value as there were other requirements required for derivative citizenship, and there was also contradictory evidence from the aunts in that the mother returned to the US illegally. The evidence just was not good, or strong, enough. As for precedent, the 9th might be constrained by Sandoval-Gonzalez, it does not mean that this panel likes it. Indeed, the opinion favorably cites other sister circuits which require prima facie evidence of meeting all the requirements of derivative citizenship. What about jury instructions? There was some evidence that slipped in about derivative citizenship, and so the defendant argued that this was the "scintilla" of evidence that supported a jury instruction. No, said the 9th, because the evidence still lacked an evidentiary foundation. It was self-serving hearsay that came in as a prior inconsistent statement. The defendant also loss in trying to argue that the two 1326s he was charged with were related for sentencing, and that the 96 month sentence was unreasonable. A hard-fought loss by AFPD Doug Beevers of the ED Ca (Sacramento) office.

U.S. v. Bingham, No. 06-50668 (8-4-11) (Rymer with Callahan and Ikuta). Want to learn about the Aryan Brotherhood? This case is a good place to start. It involves a RICO prosecution against AB members, including this defendant. The RICO convictions arose from evidence of a string of murders and assaults ordered by the AB. The defendant raises numerous objections, ranging from sufficiency of the evidence, to the use of gang membership evidence, to loss of evidence, prosecutorial misconduct, and RICO elements. All were denied.