Wednesday, February 28, 2007

US v. Mejia-Pimental, No. 05-30604 (2-26-07). In the context of the "safety valve," the 9th addresses what is meant by "good faith" disclosure of information. Here, the defendant was less than candid in the first go-around. Afterwards, and after his uncle had been convicted of a lesser charge, but before defendant himself was sentenced, he sent a proffer letter outlining all he knew about his involvement and others. The government was annoyed because the information was now stale, and the uncle had gotten a lesser. The government complained that it was not fully in good faith, and the court concluded that the defendant had not cooperated with the government or provided timely information. Neither the government nor the court concluded that the proffer letter was misleading or wrong. The court had also stated that he was going to sentence in accordance with the mandatory minimum. Judge Paez (joined by Thompson and D. Nelson) vacated and remanded. The 9th held that the focus was not on cooperation, or aiding the government in prosecution of others, but whether, at the time of sentencing, the defendant had provided truthful information in good faith. The 9th stressed that the defendant need only meet the statutory requirement of providing truthful information to the government of the offense(s). The 9th remanded because the court erred in using the mandatory minimum as a starting point because the safety valve directs the sentencing be under the guidelines (and no reference to the mandatories).

US v. Castillo-Basa, No. 05-50768 (2-26-07). This is a double jeopardy decision. The 9th, through Reinhardt joined by Wardlaw, finds that the government violates the double jeopardy bar when it seeks to bring a perjury charge against a defendant who testified on his behalf in a 1326 trial, and got an acquittal. His testimony was that there was not a prior deportation hearing. The government could not produce the tape, despite being ordered to twice by the court, and then only found it afterwards. The 9th was clear: the government gets its best shot, and does not get a "mulligan" when there is an acquittal. It had the evidence, it couldn't produce it, and so too bad. The fact the defendant may have been wrong in his testimony (or outright lied) cannot be the basis of a perjury trial because the key fact would be the same in both trials: was there a deportation hearing. In dissent, Trott decries the decision as giving the defendant a license to lie and not having any repercussions. Trott would find that collateral estoppel does not bar trial because the presence of the defendant at the deportation hearing was not at issue in the 1326 case.


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