U.S. v. Marguet-Pillado, No. 10-50041 (8-12-11) (Gwin, D.J., with B. Fletcher; dissent by N. Smith).

"The law of the case doctrine" does not preclude the defendant, at a second trial, from getting a jury instruction arguing that the government failed to prove beyond a reasonable doubt that the defendant had not obtained derivative citizenship. Here, the defendant's stepfather was a US citizen. He regarded the defendant as his son, although born in Mexico from a prior relationship, and had so informed immigration. When defendant got into trouble, and was convicted, he argued derivative citizenship to the immigration judge to no avail. At the first trial, which was to the court, the court also rejected the argument. On appeal, the 9th reversed on other grounds related to inadmissible hearsay. It affirmed on the derivative citizenship issue. At a second trial, this time before a jury, the defendant asked for a jury instruction focused on the government proving that the defendant was not a derivative citizen. The trial court denied the instruction. On appeal, the 9th holds this was error, and vacated the conviction and remanded for a new trial. The law of the case doctrine operates in a different context in a criminal matter, because of constitutional concerns. Applying the doctrine, after a guilty verdict had been vacated, raised confrontation and burden shifting issues. Moreover, the defendant was correct in arguing that the government bore the burden to prove guilt on each element beyond a reasonable doubt to a jury. The jury was the trier of fact. Lastly, the evidence was different at the second trial. Dissenting, Smith argues that as a matter of law, the defendant could not be a derivative citizen. This was held by a previous panel. The matter was settled. The government only had to prove that the defendant was an alien; not that he was not a derivative citizen.

Congratulations to Greg Murphy, Janet Tung, Vincent Brunkow, and Devon Burstein of the Federal Defenders of San Diego. It has been an especially good run for Vince Brunkow, who has recently won three appeals (the tri-fecta of due process?)