Wednesday, September 14, 2005

US v. Smith-Baltiher

No. 03-50375 (9-9-05). This is a rare defense victory (for the moment) in a 1326 case. The defendant was apprehended trying to reenter the US. He admitted he was born in Mexico, and other not so good facts,. It turns out though that his mother may have been born in the US and was a citizen. The prosecutor had the birth certificate but refused to turn it over because it was “fraudulent” in his opinion. The court ordered him to turn it over. The court then made several rulings as to evidence and defenses, changed its mind, made several more, changed its mind, and refused to grant a continuance. Basically, the court found that the defendant was collaterally estopped by his prior deportations from arguing that he was a citizen; and that he could not mount a defense that he thought was a citizen. The 9th (Reinhardt) held that the gov’t couldn’t use collateral estoppel (the gov’t conceded error on this point based on Arnett). More important, the 9th found that the defendant could mount a defense that he thought he was a citizen. He would have been if the birth certificate of his mother is correct; the gov’t’s Homeland Security Dept doesn’t get to make the call; it is not a purely legal questions but a mixed one and the specific intent nature of his attempt to enter allows him to raise it. Congrats to Matthew Winter of the Fed Defenders of San Diego for this win.


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