FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 10-50041
Plaintiff-Appellee, D.C. No.
v. 3:06-CR-02505-
CARLOS JESUS MARGUET-PILLADO, IEG-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the Southern District of California
Irma E. Gonzalez, District Judge, Presiding
Argued and Submitted
June 6, 2011—Pasadena, California
Filed August 12, 2011
Before: Betty B. Fletcher and N. Randy Smith,
Circuit Judges, and James S. Gwin, District Judge.*
Opinion by Judge Gwin;
Dissent by Judge N.R. Smith
*The Honorable James S. Gwin, District Judge for the U.S. District
Court for Northern Ohio, Cleveland, sitting by designation.
10795
10798 UNITED STATES v. MARGUET-PILLADO
COUNSEL
Laura Duffy, Bruce R. Castetter, and Steve Miller, Office of
the United States Attorney, for the plaintiff-appellee.
UNITED STATES v. MARGUET-PILLADO 10799
Gregory Thomas Murphy, Janet Tung, Vincent James Brun-
kow, and Devin Burstein, Federal Defenders of San Diego,
Inc., for the defendant-appellant.
OPINION
GWIN, District Judge:
Defendant-Appellant Carlos Marguet-Pillado (“Marguet-
Pillado”) appeals his conviction for being a previously-
removed alien found in the United States, in violation of 8
U.S.C. § 1326. With his appeal, Marguet-Pillado argues that
the district court erred in refusing to give a requested jury
instruction. The instruction would have permitted Marguet-
Pillado to argue that the government had failed to establish
that Marguet-Pillado was an alien who had not obtained
derivative citizenship from his step-father, a United States cit-
izen listed on Marguet-Pillado’s birth certificate as his father.
The district court rejected the instruction after finding that an
earlier appeal in this case relieved the government of the bur-
den of establishing alienage in the second trial. Because we
find that in the second trial, Marguet-Pillado could require the
government to come forward with proof that Marguet-Pillado
was an alien and did not have derivative citizenship, we
REVERSE Marguet-Pillado’s conviction and remand this
case for a new trial.
I. Background
Defendant-Appellant Carlos Marguet-Pillado was born in
Tijuana, Mexico, in 1968 to Juana Pillado, a Mexican citizen,
and an unknown biological father. Marguet-Pillado’s birth
certificate, obtained in 1973, lists United States citizen
Michael Marguet as his father. The parties do not contest,
however, that Michael Marguet was Defendant-Appellant
Marguet-Pillado’s step-father, not his biological father. In
10800 UNITED STATES v. MARGUET-PILLADO
1973, Defendant-Appellant Marguet-Pillado and his mother
entered the United States; his mother entered on a K-1 fiancée
visa and the Defendant-Appellant entered on a K-2 visa. In
late 1973, in Marguet-Pillado’s “Application for Status as
Permanent Resident,” Michael Marguet listed Marguet-
Pillado as his son, although he disclosed to the Immigration
Examiner that he and Marguet-Pillado were not biologically
related. In January 1974, Defendant-Appellant Marguet-
Pillado became a lawful permanent resident and continued to
reside in the United States. United States v. Marguet-Pillado
(Marguet I), 560 F.3d 1078, 1080 (9th Cir. 2009).
In 1994, Marguet-Pillado was convicted of second-degree
burglary, in violation of California Penal Code Section 459,
and he was sentenced to two years’ imprisonment. Approxi-
mately eighteen months later, in September 1995, he was con-
victed of attempted murder with a firearm, in violation of
California Penal Code Sections 187, 664, and 12022.5(a), for
which he received an eight-year prison term. He was released
from prison in 2002.
On September 22, 2006, Marguet-Pillado was removed
from the United States. During his removal proceedings,
Marguet-Pillado claimed that he had acquired derivative
United States citizenship from his step-father. The presiding
immigration judge rejected this argument and ordered that
Marguet-Pillado be removed from the United States. Shortly
thereafter, Marguet-Pillado returned to the United States with-
out inspection. On October 20, 2006 he was arrested on an
outstanding warrant in Chula Vista, California.
On November 28, 2006, Marguet-Pillado was indicted on
one count of being a removed alien found in the United
States, in violation of 8 U.S.C. § 1326(a) and (b). Marguet-
Pillado filed two motions to dismiss the indictment. The first
argued that the indictment was defective for failing to allege
that Marguet-Pillado knew he was an alien. The second
asserted that his removal had been defective due to the immi-
UNITED STATES v. MARGUET-PILLADO 10801
gration judge’s application of the wrong legal standard in
assessing Marguet-Pillado’s claim of derivative citizenship.
Both motions were denied. See Marguet I, 560 F.3d at
1080-81.
Marguet-Pillado filed a waiver of jury trial and was tried by
the district judge. For that non-jury trial, the government and
Marguet-Pillado stipulated that he had been removed on Sep-
tember 22, 2006, after an immigration judge rejected his
claim of derivative citizenship, and that he had reentered the
United States without express consent. At the conclusion of
the bench trial, the district court found Marguet-Pillado guilty
and sentenced him to fifty-one months’ imprisonment fol-
lowed by a three-year term of supervised release.
Marguet-Pillado appealed his conviction, arguing that the
acquisition of derivative citizenship did not require a biologi-
cal relationship to a United States citizen parent and that the
district court erred in admitting certain hearsay evidence. A
panel of this Court reversed the conviction due to the admis-
sion of inadmissible hearsay evidence. Marguet I, 560 F.3d at
1087. However, the panel rejected Marguet-Pillado’s deriva-
tive citizenship argument, holding that an individual cannot
obtain derivative citizenship from a non-biological parent. Id.
at 1084.
On remand, Marguet-Pillado elected to be tried by jury. For
the second trial, Marguet-Pillado made no factual stipulations.
Throughout pre-trial proceedings, the government maintained
that Marguet-Pillado should be precluded from arguing or
suggesting that he was a United States citizen. For example,
on August 14, 2009, at the first substantive hearing after
remand, the government stated that it wanted to preclude any
argument or reference to whether Marguet-Pillado had
obtained derivative citizenship through his step-father.
Marguet-Pillado’s defense counsel replied that Marguet-
Pillado would not be entitled to an instruction on his previ-
ously rejected theory of derivative citizenship, but stated that
10802 UNITED STATES v. MARGUET-PILLADO
the defense planned on arguing at trial that the government
had not proven alienage beyond a reasonable doubt, saying:
“obviously, I’m not going to mislead the court or the jury . . .
[however] . . . I think the Ninth Circuit has instructed us we’re
entitled to challenge the quality of the government’s evidence
. . . I’m not going to argue that our now-rejected legal theory
should be the law[, but] I think we’re entitled to say that the
government hasn’t met its burden with respect to an element
of the crime.”
In its trial brief, the government similarly stated that should
Marguet-Pillado raise the possibility of derivative citizenship,
“the government will ask this court to take judicial notice of
its own docket and appellate authority establishing [that] the
basis of his derivative citizenship claim was foreclosed by
prior court rulings.” On that issue, prior to trial the govern-
ment filed a formal motion in limine “to exclude any refer-
ence to any claim of derivative citizenship,” arguing that
“[s]ince this court and the Ninth Circuit . . . held that defen-
dant’s derivative citizenship was legally insufficient, defen-
dant should be precluded from offering any evidence asserting
derivative citizenship before the jury.” The district court
granted the motion, finding that the material was not relevant
because the Ninth Circuit already ruled that Marguet-Pillado
could not claim derivative citizenship based upon his relation-
ship to Michael Marguet, his step-father.
Most directly relevant to this appeal, Marguet-Pillado
argues that the district court incorrectly rejected a proposed
jury instruction on the alienage element of 8 U.S.C. § 1326(a).
In the instructions, the district court defined an “alien” as “a
person who is not a natural-born or naturalized citizen or
national of the United States.” On November 3, 2009,
Marguet-Pillado requested that the district court give the fol-
lowing supplemental instruction on the alienage element of
the crime:
A person is a natural-born United States citizen if
that person was born in the United States. A person
UNITED STATES v. MARGUET-PILLADO 10803
born outside the United States is also a natural-born
citizen of the United States if, before the person’s
birth, one biological United States citizen parent of
that person was physically present in the United
States for ten years, at least five of which were after
the citizen parent reached the age of fourteen.
The government argued that this Court’s earlier opinion pre-
cluded Marguet-Pillado from arguing to the jury that he might
be a citizen and that he was, therefore, not entitled to the pro-
posed supplemental instruction.
On his part, Marguet-Pillado made two related arguments
in support of the instruction. First, he argued that this instruc-
tion merely required that the government prove that he was an
alien—that is, it simply allocated the burden of proof to the
correct party. Second, he argued that the law of the case doc-
trine did not apply because a criminal defendant is entitled to
have the jury decide whether the government proved all of the
elements of the offense beyond a reasonable doubt. Marguet-
Pillado argued that the question of whether there was a bio-
logical relationship between him and Michael Marguet was
one for the jury. In effect, Marguet-Pillado claimed that the
government was asking for a directed verdict with regard to
an element of the offense—that the government had already
established his alienage—and that directed verdicts in favor of
the government could not be given in criminal cases.
The district court rejected Marguet-Pillado’s arguments,
largely on the grounds that the law of the case doctrine pre-
cluded an instruction about derivative citizenship.
The trial commenced on November 4, 2009, and the jury
returned a guilty verdict on the next day. On January 25,
2010, the district court sentenced Marguet-Pillado to fifty-one
months’ imprisonment, followed by a three-year term of
supervised release. On January 28, 2010, Marguet-Pillado
filed his notice of appeal. In the current appeal, Marguet-
10804 UNITED STATES v. MARGUET-PILLADO
Pillado principally argues that the district court erred in refus-
ing to give the jury his requested instruction, which explained
when an individual is a natural-born United States citizen
through derivative citizenship.
II. Standard of Review
“A criminal defendant has a constitutional right to have the
jury instructed according to his theory of the case,” United
States v. Johnson, 459 F.3d 990, 993 (9th Cir. 2006), provided
that the requested instruction “is supported by law and has
some foundation in the evidence,” United States v. Bello-
Bahena, 411 F.3d 1083, 1088-89 (9th Cir. 2005) (citation
omitted). Whether an instruction “is supported by law” is
reviewed de novo. See United States v. Castagana, 604 F.3d
1160, 1163 n.2 (9th Cir. 2010). Whether it “has some founda-
tion in the evidence” is reviewed for an abuse of discretion.
See United States v. Daane, 475 F.3d 1114, 1119 (9th Cir.
2007); Bello-Bahena, 411 F.3d at 1089. The district court’s
failure to give a defendant’s requested instruction that is sup-
ported by law and has some foundation in the evidence “war-
rants per se reversal,” Bello-Bahena, 411 F.3d at 1091 n.6,
unless “other instructions, in their entirety, adequately cover
that defense theory,” United States v. Thomas, 612 F.3d 1107,
1120 (9th Cir. 2010) (citation and quotation marks omitted).
The district court had jurisdiction over this action under 18
U.S.C. § 3231. We have jurisdiction over the appeal under 28
U.S.C. § 1291. We now reverse, finding that the district court
erred when it rejected Marguet-Pillado’s proposed jury
instruction.
III. Analysis
[1] The Court must decide whether the district court erred
in rejecting Marguet-Pillado’s instruction regarding derivative
citizenship. As previously noted, a criminal defendant has the
right to have the jury instructed according to his theory of the
UNITED STATES v. MARGUET-PILLADO 10805
case so long as that instruction is (1) supported by the law and
(2) has some foundation in the evidence. Bello-Bahena, 411
F.3d at 1088-89.
[2] No one disputes that Marguet-Pillado’s requested
instruction was “an accurate statement of the law,” in that it
correctly stated the two circumstances in which an individual
born in 1968 is a natural-born United States citizen: (1) that
the person was born in the United States or (2) born outside
the United States to a biologically-related United States citi-
zen parent who met certain residency requirements. Nonethe-
less, the government asserts that the requested instruction
“was not supported by the law” because “[t]he issue of
Marguet-Pillado’s claim of derivative citizenship was decided
as a matter of law” in Marguet I.
The district court accepted this argument and grounded its
decision in the notion that the requested instruction was pre-
cluded by the law of the case doctrine.1 Because Marguet-
Pillado’s claim of derivative citizenship was definitively
decided in Marguet I, the district court believed that the jury
could not find there was a reasonable doubt as to Marguet-
Pillado’s alienage based on his relationship to Michael Mar-
guet, and therefore, that the court could not give an instruction
facilitating that conclusion. In other words, the district court
seemed to think that the jury could not reach a conclusion that
conflicted with the law of the case.
[3] We are mindful of the difficult position that the district
court was in when deciding whether to issue instructions
related to derivative citizenship in light of our decision in
Marguet I. Nonetheless, the district court erred when it ruled
1
The law of the case doctrine “posits that when a court decides upon a
rule of law, that decision should continue to govern the same issues in sub-
sequent stages in the same case.” Arizona v. California, 460 U.S. 605, 618
(1983); Tahoe-Sierra Preserv. Council, Inc. v. Tahoe Regional Planning
Agency, 216 F.3d 764, 786-87 (9th Cir. 2000).
10806 UNITED STATES v. MARGUET-PILLADO
that the requested instruction was precluded as a matter of
law. Section 1326(a) punishes “any alien who . . . (1) has been
denied admission, excluded, deported, or removed or has
departed the United States while an order of exclusion, depor-
tation, or removal is outstanding, and thereafter (2) enters,
attempts to enter, or is at any time found in, the United States”
without permission from the government. “It is well-
established that, by the statute’s plain terms, alienage is a core
element of the § 1326 offense.” United States v. Sandoval-
Gonzalez, 642 F.3d 717, 722 (9th Cir. 2011) (citations omit-
ted). “As such, the government must prove alienage beyond
a reasonable doubt, and a defendant is entitled to have the jury
determine that question at trial.” Id. (citations and quotation
marks omitted); see also United States v. Smith-Baltiher, 424
F.3d 913, 921 (9th Cir. 2005).
[4] Reliance upon the law of the case doctrine in this con-
text was mistaken. The use of such a doctrine potentially
leads to a number of unconstitutional results, including violat-
ing Marguet-Pillado’s right to confront witnesses and his right
to have a jury decide whether the government has proven the
elements of a crime beyond a reasonable doubt. Although
there is no clear precedent in this Circuit as to the applicabil-
ity of the law of the case doctrine in the criminal context, we
previously held that offensive collateral estoppel could not be
used to prove facts or elements against a criminal defendant.
Indeed, “[i]n federal criminal trials, the United States may not
use collateral estoppel to establish, as a matter of law, an ele-
ment of an offense or to conclusively rebut an affirmative
defense on which the government bears the burden of proof
beyond a reasonable doubt.” United States v. Arnett, 353 F.3d
765, 766 (9th Cir. 2003) (en banc) (per curiam); Smith-
Baltiher, 424 F.3d at 920.
[5] Although the context is slightly different, the logic of
Smith-Baltiher and Arnett also applies to the current case. See
also United States v. Gallardo-Mendez, 150 F.3d 1240, 1244
(10th Cir. 1998) (“[W]hile ‘wise public policy and judicial
UNITED STATES v. MARGUET-PILLADO 10807
efficiency’ may be sufficient reasons to apply collateral estop-
pel in civil cases, they do not have the same weight and value
in criminal cases.”) (citation omitted); United States v.
Pelullo, 14 F.3d 881, 897 (3d Cir. 1994) (holding that defen-
dant’s prior conviction following jury trial for wire fraud did
not prevent re-litigation of the same crime as predicate
offense in later RICO trial); United States v. Harnage, 976
F.2d 633, 636 (11th Cir. 1992) (rejecting the use of collateral
estoppel against criminal defendants). The law of the case
doctrine cannot constitutionally be applied to bar the use of a
defendant’s proposed jury instruction where that instruction is
legally correct and supported by a foundation in the evidence,
particularly where that instruction is intended to hold the gov-
ernment to its burden of proof on an element of a crime. To
do so in that circumstance would practically act as an imper-
missible directed verdict on an element of the offense. See
Jeffries v. Wood, 114 F.3d 1484, 1489 (9th Cir. 1997) (stating
that law of the case should not be applied where it would
create a “manifest injustice”), overruled on other grounds by
Lindh v. Murphy, 521 U.S. 320 (1997). Further, and aside
from the constitutional question, the law of the case cannot
validly be applied where “substantially different evidence was
adduced at a subsequent trial.” Id. That exception to the law
of the case doctrine applies here because the evidence admit-
ted on the issue of alienage at the second trial was different
than at the first.2
2
Additionally, although the district court did not squarely hold this, it
seems that it believed derivative citizenship was an affirmative defense for
which Marguet-Pillado had to show prima facie eligibility before receiv-
ing the requested instruction (and that Marguet-Pillado was precluded
from making that showing because of the decision in Marguet I). As our
recent decision in Sandoval-Gonzalez made clear, any instruction requir-
ing that a criminal defendant prove his citizenship as an affirmative
defense is in error. 642 F.3d at 722-23 (“Lest there by any further doubt,
we now clarify 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.”).
10808 UNITED STATES v. MARGUET-PILLADO
[6] Because Marguet-Pillado’s proposed instruction was
supported by the law, the district court was required to give
that instruction to the jury so long as it had “some foundation
in the evidence.” Bello-Bahena, 411 F.3d at 1088-89. The
jury received evidence that Michael Marguet was listed on
Marguet-Pillado’s birth certificate as his father, that Michael
Marguet was a United States citizen, that Michael Marguet
had lived and worked in the United States for some time prior
to Marguet-Pillado’s birth, and that Marguet-Pillado was born
near the United States border. This evidence is sufficient to
establish a foundation in the evidence that Marguet-Pillado
was not an alien because he had derived citizenship. See
Bello-Bahena, 411 F.3d at 1091 (“[A] defendant is entitled to
an instruction concerning his theory of the case if the theory
is legally sound and evidence in the case makes it applicable,
even if that evidence is weak, insufficient, inconsistent, or of
doubtful credibility.” (quoting United States v. Washington,
819 F.2d 221, 225 (9th Cir. 1987) (alteration in original))).
[7] Indeed, we reached the conclusion that Marguet-
Pillado was an alien in the first appeal because Marguet-
Pillado admitted that Michael Marguet was not his biological
father on his appeal. Appellant’s Opening Brief, Marguet I,
2008 WL 6796023 (Sept. 10, 2008). On the basis of those
facts, Marguet I held that Marguet-Pillado was not entitled to
derivative citizenship. But that earlier guilty verdict has been
vacated and, as Marguet-Pillado argued to the district court,
he did not stipulate to the lack of a biological relationship in
the second trial. See also United States v. James, 987 F.2d
648, 651 (9th Cir. 1993) (stipulation as to element of crime
could not be taken into account when it was “never entered
into evidence or read to the jury”). Indeed, in Marguet I,
where Marguet-Pillado presented a legal argument for his the-
ory of derivative citizenship, it made some tactical sense for
him to admit the lack of biological relationship on his appeal.
That admission, however, should not preclude Marguet-
Pillado from holding the government to its burden of proof on
each element of the offense in a later trial. Given the evidence
UNITED STATES v. MARGUET-PILLADO 10809
in the record indicating that Marguet-Pillado may have been
a derivative citizen and the lack of contrary evidence admitted
at trial, we find that the district court abused its discretion in
deciding that the proposed instruction had no foundation in
the evidence. See United States v. Hinkson, 585 F.3d 1247,
1261-62 (9th Cir. 2009) (en banc).
Fundamentally, the result of accepting the government’s
argument would be to impair Marguet-Pillado’s right to have
the jury decide whether the government has proven all of the
elements of the crime, including that he is, in fact, an alien.
Of course, the jury should be instructed as to the proper law
regarding derivative citizenship, but the determination the
government has proven that he is not a derivative citizen—
including whether he has a biological relationship to Michael
Marguet—is ultimately a factual question that only the jury
can decide. See United States v. Meza-Soria, 935 F.2d 166,
169 (9th Cir. 1991) (“If, as we have stated, alienage is an ele-
ment of the crime, then it is an ineluctable conclusion that the
government must prove that element beyond a reasonable
doubt—due process demands no less.”); United States v.
Jones, 248 F.3d 671, 675 (7th Cir. 2001) (“In all criminal
cases, the government must prove each element, even those
that the defendant does not specifically contest, beyond a rea-
sonable doubt to convict a defendant.” (citation omitted)).3
3
The appeal in Marguet I makes for a somewhat more complicated
inquiry in this case and likely resulted in the district court’s confusion.
However, analogizing to a more familiar context makes the district court’s
error more clear. For example, in felon-in-possession cases under 18
U.S.C. § 922, often the fact that the defendant was previously convicted
of a felony is known as a factual matter (in the colloquial sense) to the par-
ties, the lawyers, and the court. Nonetheless, the government still must
carry its burden of proving to the jury that the defendant was in fact previ-
ously convicted of a felony. In disputing this element, the defendant may
not present false information (such as flatly denying the previous convic-
tion if he took the stand), but he would be permitted to argue to the jury
that the government has failed to prove beyond a reasonable doubt that he
was convicted of the previous offense.
10810 UNITED STATES v. MARGUET-PILLADO
[8] We also now find that the district court’s error in
rejecting the requested instruction warrants reversal of this
case for a new trial. Where a jury instruction is supported by
the law and has some foundation in the evidence, a district
court’s decision to reject that instruction must be reversed
unless the “other instructions, in their entirety, adequately
cover that defense theory.” Thomas, 612 F.3d at 1120 (cita-
tion and quotation marks omitted). Here, we reverse because
the other jury instructions do not at all take into account this
theory of defense since none of them mention the possibility
of derivative citizenship.
[9] Further, and as we recently explained in Sandoval-
Gonzalez, any error having the effect of shifting the burden to
the defendant to prove that he is not an alien is prejudicial.
642 F.3d at 724-27. The district court’s jury instruction on the
alienage element inappropriately relieved the government of
its burden of proving that Marguet-Pillado was not a United
States citizen. Although we previously rejected Marguet-
Pillado’s theory of derivative citizenship, the government still
was constitutionally required to prove to a jury that Marguet-
Pillado was an alien.4
IV. Conclusion
Because the district court erred in rejecting Defendant-
Appellant Marguet-Pillado’s proposed jury instruction and
because we find that error prejudicial, we REVERSE and
REMAND for a new trial.5
4
Defendant-Appellant Marguet-Pillado also appeals his conviction on
the grounds that the prosecutor’s closing statement impermissibly mis-
stated the burden of proof. Because we find that the district court’s rejec-
tion of the proposed jury instruction warrants reversal, it is unnecessary to
reach this separate issue.
5
The dissent suggests that it would be more appropriate for us to seek
en banc review in this case because we fail to follow our earlier decision
in Marguet I. However, this decision does not in any way question or
UNITED STATES v. MARGUET-PILLADO 10811
N.R. SMITH, Circuit Judge, dissenting:
I cannot understand why the majority opinion fails to fol-
low a decision of the Ninth Circuit without asking for a sua
sponte en banc proceeding. While Marguet-Pillado is entitled
to have a jury determine whether he is an alien, he is not enti-
tled to a jury instruction contrary to the law propounded by
our circuit in United States v. Marguet-Pillado, 560 F.3d 1078
(9th Cir. 2009) (Marguet-Pillado I). Therefore, I must dissent.
To get a conviction here, the government was required to
prove that Marguet-Pillado was an alien, defined as “any per-
son not a citizen or national of the United States.” See 8
U.S.C. § 1101(a)(3). The government presented evidence that
Marguet-Pillado was born in Mexico, entered the U.S. on a
non-immigrant visa, was granted legal permanent resident sta-
tus, and had been deported to Mexico. Given this uncontra-
dicted evidence, there is no question the government could
meet its burden of proof. Despite earlier admitting that the
Ninth Circuit’s prior decision precluded him from arguing
that he had derivative citizenship, Marguet-Pillado asked the
district court to include a jury instruction on derivative citi-
zenship. The district court refused the instruction, instead con-
cluding that the issue had been conclusively determined by
the Ninth Circuit in Marguet-Pillado I and the jury instruction
was contrary to the law of the case. The district court then
instructed the jury that “[a]n alien is a person who is not a
natural-born or naturalized citizen or national of the United
States.” The jury found Marguet-Pillado guilty.
undermine the holdings in Marguet I. Indeed, we now reaffirm the stan-
dard for how an individual may acquire derivative citizenship under the
version of 8 U.S.C. § 1409(a) that was in effect at the time Marguet-
Pillado was born. This decision merely addresses the issue of whether a
defendant may be precluded from requiring that the government prove
alienage under Marguet I’s interpretation of that statute based upon the
law of the case doctrine.
10812 UNITED STATES v. MARGUET-PILLADO
The district court did not err in holding that the law of the
case precluded instructing the jury on derivative citizenship.
In Marguet-Pillado I, we clearly and explicitly held that
Marguet-Pillado “does not have derivative citizenship.” 560
F.3d at 1087. Further, as a matter of law, an individual born
out of wedlock must have a biological relationship with a U.S.
citizen parent in order to claim derivative citizenship. Id. at
1083-84. Marguet-Pillado “did not have a blood relationship
to Michael Marguet.” Id. at 1084. The decision, moreover, did
not indicate that this legal issue was to be relitigated on
remand.
The law of the case doctrine exists to ensure “that when a
court decides upon a rule of law, that decision should con-
tinue to govern the same issues in subsequent stages in the
same case.” Arizona v. California, 460 U.S. 605, 618 (1983).
Unlike collateral estoppel (to which the majority analogizes),
the law of the case doctrine does apply in criminal cases. See
Bradley v. Duncan, 315 F.3d 1091, 1098 (9th Cir. 2002)
(alterations omitted) (holding that law of the case applies if a
legal issue was “distinctly put in issue and directly determined
by a criminal or civil court”).1 Further, unlike collateral estop-
pel, where the burden of proof in an immigration hearing or
civil case is often lower than the criminal standard, Marguet-
Pillado’s first trial required the government to prove alienage
beyond a reasonable doubt. See United States v. Marin-
Cuevas, 147 F.3d 889, 892 (9th Cir. 1998) (discussing the dif-
ference between alienage findings in deportation proceedings
and criminal trials). Therefore, there is no prejudice or consti-
tutional violation in applying the law of the case to preclude
the relitigation of issues conclusively decided by an appellate
court.
1
This is true in other circuits as well. See, e.g., United States v. Mat-
thews, 643 F.3d 9, 13 (1st Cir. 2011); United States v. Matthews, 312 F.3d
652, 657 (5th Cir. 2002); United States v. Anglin, 601 F.3d 523, 527 (6th
Cir. 2010); United States v. Wisecarver, 2011 WL 2569753 (8th Cir. June
30, 2011); United States v. Stinson, 97 F.3d 466, 469 (11th Cir. 1996).
UNITED STATES v. MARGUET-PILLADO 10813
Contrary to the majority’s decision, there is no basis for
holding that applying the law of the case would result in a
“manifest injustice.” See Jeffries v. Wood, 114 F.3d 1484,
1489 (9th Cir. 1997) (en banc) overruled on other grounds by
Lindh v. Murphy, 521 U.S. 320 (1997). In his first trial,
Marguet-Pillado chose to base his defense on the assertion
that he was legitimated under California law and therefore
entitled to derivative citizenship based on his relationship to
his stepfather Michael Marguet.2 He continued that strategy
on his first appeal. We did not “swallow” that theory. As a
result, but for the evidentiary error, Marguet-Pillado’s convic-
tion would have been affirmed on that theory and the facts he
chose to assert. That his defense was ineffective is not
grounds for disregarding the decision of the previous panel in
Marguet-Pillado I.
The majority may be correct that the evidence in the second
trial was “substantially different” from the first. However, that
does not justify avoiding the law of the case. First, the evi-
dence had to be different, because we had held that one docu-
ment was improperly admitted hearsay and remanded for a
new trial on that basis. Marguet-Pillado I, 560 F.3d at 1086.
Second, the evidence was different because, in accordance
2
At his first trial, Marguet-Pillado sought to affirmatively demonstrate
that Marguet was not his biological father. He proposed to offer testimony
from Juana Pillado that “she raised Carlos Marguet to believe Michael
Marguet was his biological father;” from a family friend that “he did not
learn Michael and Carlos Marguet-Pillado were not biologically related
until the commencement of Mr. Marguet-Pillado’s removal proceedings in
2006;” and from Michael Marguet that he “considers himself Carlos
Marguet-Pillado’s father.” Trial Memorandum at 2-3, United States v.
Marguet-Pillado, No. 3:06-cr-02505-IEG (S.D. Cal. Sept. 24, 2007)
(emphasis added). He appealed to this court asserting the same facts and
argument. Opening Brief, 2008 WL 6796023, Marguet-Pillado I, 560 F.3d
at 1087 (claiming that he “was born in Tijuana, Mexico, on [date], to
Juana Pillado and an unidentified other man. Before the family immi-
grated in 1973, Mr. Marguet’s non-biological father, Michael Marguet,
presented himself as Carlos Marguet’s father before the Mexican civil reg-
istry.” (citations omitted)).
10814 UNITED STATES v. MARGUET-PILLADO
with the law of the case, the government had no need to prove
that Michael Marguet could not give derivative citizenship to
Marguet-Pillado. We had held that was not possible. At the
second trial, the jury saw that Marguet-Pillado was born in
Mexico, was granted a non-immigrant visa to enter the coun-
try in 1973, and received legal permanent resident status in
1974. The jury also saw that the immigration court found he
was a alien and that he was deported. This is similar to the
evidence admitted in the first trial. What the jury did not see
was the hearsay document we had held was inadmissible.
Declining to apply the law of the case because the evidence
differed in the second trial makes no sense.
Moreover, refusing such an instruction does not prevent
Marguet-Pillado from challenging the sufficiency of the evi-
dence of his alienage or relieve the government from its bur-
den of proof on that element of the offense. Our prior decision
aptly illustrates this distinction. Although we held that
Marguet-Pillado could not claim derivative citizenship
through Michael Marguet, we nonetheless remanded the case,
because improperly admitted hearsay evidence was part of the
government’s proof of alienage. Id. at 1087. Such an approach
is also in keeping with our decision in Sandoval-Gonzalez:
To be clear, the government does not have the bur-
den of disproving each element of derivative citizen-
ship; only “alienage” is among the elements of the
crime, so only it must be proven. . . . [T]he govern-
ment advanced sufficient evidence for a rational
factfinder to conclude beyond a reasonable doubt
that Sandoval is a Mexican citizen, even though the
government did not disprove each criterion for deriv-
ative citizenship. The government could endeavor to
disprove each requirement for derivative citizenship
in an effort to eliminate all doubt—for example, by
producing the defendants’ parents’ own immigration
or residency records—but it need not do so.
UNITED STATES v. MARGUET-PILLADO 10815
Sandoval-Gonzalez, 642 F.3d at 724.
Because Marguet-Pillado’s claim of derivative citizenship
through Michael Marguet was properly foreclosed by the law
of the case, I respectfully dissent.