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Illegal Reentry Conviction Vacated Where Court Improperly Permitted Government to Fill Gaps in its Case

For the last year or so, I have been closely following rulings by the United States Court of Appeals for the Ninth Circuit in the area of immigration law. In that time I have come to appreciate the different approaches taken by the circuit judges with regard to removal, asylum and criminal immigration cases.

I have particularly enjoyed reading the opinions by Chief Judge Alex Kozinski. He has a nimble, energetic prose style and avoids using a lot of legal jargon. Judge Kozinski also has a legal acumen like a Mariano Rivera cutter: unfailingly accurate, he locates on all sides of the plate.

Judge Kozinski recently turned the heat up on his pitches in U.S. v. Hernandez-Meza. That case involved a criminal prosecution for alleged illegal re-entry and false claim to U.S. citizenship against Luis Hernandez-Meza.

Under the law applicable when he was a minor, Hernandez-Meza would have automatically derived citizenship if both of his parents were naturalized before his 18th birthday. His defense at trial was that that the government's evidence left open the possibility that he derived citizenship from his parents. Therefore, argued Hernandez-Meza, the government could not prove his alienage, which it had to do in order for the jury to be able to render a guilty verdict.

After Hernandez-Meza submitted proposed jury instructions supporting his derivative citizenship defense, the government moved to reopen its case-in-chief in order to offer a certificate of naturalization establishing that Hernandez-Meza's mother was naturalized after Hernandez-Meza turned 18. Over the objections of Hernandez-Meza's attorney, the district court allowed the government to reopen its case, characterizing the proposed instructions as a "total surprise" to the government, and citing an overriding interest in having the case decided on its merits.

As a result of the district court's ruling, the jury considered the naturalization certificate and convicted Hernandez-Meza of illegal reentry. Hernandez-Meza was acquitted of falsely claiming to be a U.S. citizen.

Writing for a unanimous panel, Chief Judge Kozinski not only vacated the conviction but also reassigned the case to a different district court judge, ordered an evidentiary hearing for consideration of sanctions against the government for withholding the naturalization certificate from Hernandez-Meza, and chided the district court for its handling of the reopening issue.

First, the government violated the Speedy Trial Act by taking two days beyond the Act's deadline to bring Hernandez-Meza to trial. In light of that violation, the district court should not have allowed the case to proceed.

Second, the district court abused its discretion to allow the government to reopen its case. The defense clearly indicated, during sidebar conferences with the trial judge and the government's attorney, as well as through cross-examination of government witnesses in the presence of the jury, that Hernandez-Meza's defense strategy centered around his derivative citizenship theory. In fact, the government had the naturalization certificate in its possession at trial -- without Hernandez-Meza's knowledge. On these facts, the naturalization certificate was not overlooked by the government and Hernandez-Meza's derivative citizenship defense could not have come as a surprise.

Third, the government had an affirmative obligation to produce the naturalization certificate, which was in its control, not only during the discovery phase of the case but also at the time of trial. Hernandez-Meza was entitled to have the naturalization certificate, since the timing of his mother's naturalization was crucial to preparing his derivative citizenship defense. Despite its duty to turn over documents to the defense, the government failed to disclose the naturalization certificate to Hernandez-Meza, which caused prejudice to Hernandez-Meza. Accordingly, due process and fairness considerations required the district court to deny the government's motion to reopen.

What most stands out to me about this case is the great lengths to which the district court went to accommodate the government, even after the government attorney had failed to produce the naturalization certificate to Hernandez-Meza. This was a criminal case after all. Hernandez-Meza's liberty was at stake. The government's actions demonstrated lack of respect for the fair administration of justice. The district court showed preference for the government which prevented the district court from applying the laws fairly to achieve a just result. Immigrants and their attorneys deserve better from our criminal justice system.

Timothy D. Widman is a San Jose Immigration Attorney and the owner of the Law Office of Timothy D. Widman.

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