                 FOR PUBLICATION
 UNITED STATES COURT OF APPEALS
      FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                  No. 05-50768
                Plaintiff-Appellee,
               v.                            D.C. No.
                                          CR-05-00734-JAH
BUENAVENTURA CASTILLO-BASA,
                                             OPINION
             Defendant-Appellant.
                                      
       Appeal from the United States District Court
          for the Southern District of California
        John A. Houston, District Judge, Presiding

                  Argued and Submitted
            June 9, 2006—Pasadena, California

                  Filed February 26, 2007

      Before: Stephen Reinhardt, Stephen S. Trott, and
          Kim McLane Wardlaw, Circuit Judges.

               Opinion by Judge Reinhardt;
                 Dissent by Judge Trott




                           2091
2094            UNITED STATES v. CASTILLO-BASA


                          COUNSEL

Michael Edmund Burke, San Diego, California, for the
defendant-appellant.

Valerie H. Chu, Assistant United States Attorney, San Diego,
California, for the plaintiff-appellee.


                           OPINION

REINHARDT, Circuit Judge:

                                I

    This case presents an important question that cuts to the
heart of the Double Jeopardy Clause. It involves the right of
a defendant to be free from repeated prosecutions in which the
government retries him until it obtains a guilty verdict. The
government was unable to convict Castillo-Basa the first time
it tried him, for illegal reentry, in large part because its coun-
sel failed to locate and present a crucial tape recording that
was within its possession. To its surprise, the jury acquitted
him. Now, having “found” the tape, the government seeks to
prosecute Castillo-Basa again, this time for perjury committed
in connection with the illegal reentry trial. The central issue
                UNITED STATES v. CASTILLO-BASA               2095
at the second trial would be the same as it was at the first: was
Castillo-Basa afforded a deportation hearing at which he was
present?

   The Double Jeopardy Clause requires the government to
put on its strongest case the first time; it forbids it to conduct
a series of prosecutions, involving the same fundamental
issues, in which it presents additional arguments and evidence
at each iteration. Here, the government has already had its
chance to prove that Castillo-Basa had a deportation hearing
and that his testimony to the contrary was false. It failed,
largely because it didn’t introduce the evidence that it had in
its possession. Under the Double Jeopardy Clause, the gov-
ernment may not take a mulligan.

   The outcome in this case follows directly from basic princi-
ples of collateral estoppel that are inherent in the Double
Jeopardy Clause. See Ashe v. Swenson, 397 U.S. 436 (1970).
The only issue in dispute during Castillo-Basa’s trial for ille-
gal reentry was whether he had been brought before an immi-
gration judge and afforded a deportation hearing prior to his
deportation. The ultimate question at issue in the second pros-
ecution — for perjury — would be whether he testified falsely
at the previous trial that he had not been present at a deporta-
tion hearing. When the jury acquitted Castillo-Basa of the ille-
gal reentry offense, it decided, as the government
acknowledged below, that a deportation hearing had not been
held and, thus, that he had not been brought before an immi-
gration judge for such a hearing. Accordingly, in rendering its
verdict, the jury necessarily decided that Castillo-Basa’s testi-
mony on the critical question of the deportation hearing was
not false. The Double Jeopardy Clause bars the government
from trying a second time to attempt to show that Castillo-
Basa was afforded the hearing in question and that his testi-
mony to the contrary was untruthful.
2096             UNITED STATES v. CASTILLO-BASA
                                 II

   On June 16, 2004, Buenaventura Castillo-Basa1 was
indicted for being a previously deported alien found in the
United States in violation of 8 U.S.C. § 1326 (2000). Castillo-
Basa’s counsel filed several pretrial motions, including a dis-
covery motion requesting production of “all discovery listed
below that is in the custody, control, care, or knowledge of
any government agency.” The government informed the dis-
trict court that an audio tape recording of Castillo-Basa’s
deportation hearing existed but asserted that it could not
locate the recording. The district court granted Castillo-Basa’s
motion to compel discovery, specifically ordering the govern-
ment to produce the tape recording of his deportation hearing.
At another hearing some three months later, defense counsel
stated that it was his understanding that there had not been a
deportation hearing and reported that he had not received a
tape of any hearing. He also suggested that Castillo-Basa may
have been deported “in absentia,” without ever being brought
before an immigration judge. The court again ordered the
government to produce the tape recording, but the govern-
ment failed to do so.

   On November 23, 2004, defense counsel filed motions in
limine, including a motion to “dismiss the indictment because
there was no prior deportation.” On the day of the motions
hearing, the defense filed a sworn declaration by Castillo-
Basa stating that “[p]rior to May 2, 1996, I never appeared
before an immigration judge” and “[p]rior to May 2, 1996, I
was never given an immigration hearing.”

  Castillo-Basa’s jury trial on the illegal reentry charge began
on January 4, 2005. The government argued in its trial memo-
randum that a tape recording of the deportation was not
required to prove the prior deportation. At trial, the govern-
  1
   Two spellings of “Castillo-Basa” appear in the record. We use the
spelling from Castillo-Basa’s appellate briefs.
                   UNITED STATES v. CASTILLO-BASA                    2097
ment presented four witnesses: Border Patrol Agent Alberto
Vallina, who testified that he found Castillo-Basa on June 4;
Border Patrol Agent Dwain Holmes, who testified as custo-
dian of Castillo-Basa’s “A” — or alien — file and through
whom the government introduced the deportation order dated
April 30, 1996, and the Warrant of Deportation; John Torres,
a fingerprint expert who testified that the fingerprints of the
person arrested on June 4, 2004 matched the fingerprints on
the Warrant of Deportation dated May 2, 1996; and Immigra-
tion Enforcement Agent Eddie Jackson, whose signature
appears on Castillo-Basa’s Warrant of Removal and who tes-
tified that he does not sign such a warrant until he observes
an alien physically depart from the country. Castillo-Basa tes-
tified at trial that he was supposed to appear before an immi-
gration judge on April 30, but that on the date of the hearing,
no one came to get him out of his cell. He further testified that
he had never come before an immigration judge and that he
did not see any representative of the INS until May 2, when
the agents took him from his cell to the Mexican border.2

   The defense theory throughout trial was that in order to be
deported, an alien must be brought before an immigration
judge, and that Castillo-Basa was never placed in front of a
judge. In this vein, the defense requested a proposed “theory
of the defense” instruction, which stated that in order to find
that Castillo-Basa was deported, the “government must prove
beyond a reasonable doubt” that he “was physically present at
a hearing before an immigration judge, and that the immigra-
tion judge ordered a final order of deportation against [him].”
The district court rejected the proposed instruction, ruling that
all that was required was that a hearing be held, not that
Castillo-Basa be present.
  2
    As we will explain, see infra p. 2104, to prove “deportation,” the gov-
ernment must show more than mere physical removal from the United
States; it must also establish that a deportation proceeding occurred as to
the defendant. This latter element was the one disputed at Castillo-Basa’s
illegal reentry trial.
2098            UNITED STATES v. CASTILLO-BASA
   Following the government’s case-in-chief and Castillo-
Basa’s testimony, the district court denied Castillo-Basa’s
motion to dismiss the indictment, finding by a preponderance
of the evidence that a deportation hearing was held on April
30, 1996 and that Castillo-Basa was present. The court relied
on the deportation order the government presented and on the
“normal course” of deportation proceedings; it specifically
found Castillo-Basa not to be credible. Nevertheless, in clos-
ing argument, Castillo-Basa’s attorney relied heavily on
Castillo-Basa’s testimony and identified a number of gaps in
the evidence the government had offered in its effort to prove
that a deportation hearing had been held. Whether such a
hearing was actually held was the only issue in dispute. The
jury acquitted Castillo-Basa of the illegal reentry offense.

   Less than two weeks after the jury returned its verdict, gov-
ernment agents located the tape recording of the April 30,
1996 deportation hearing. On the recording, Immigration
Judge John Williams recited the names of individuals who
were to have a deportation hearing that day; Castillo-Basa’s
name was among those listed. An individual responded to the
name “Buenaventura Castillo-Basa” and admitted that he had
been convicted of a crime in December 1985. The details pro-
vided by the responding individual regarding the 1985 convic-
tion, such as the date of the offense and the amount of time
served, correlate with the details of Castillo-Basa’s criminal
history.

   On April 27, 2005, a grand jury indicted Castillo-Basa on
two counts of perjury, in violation of 18 U.S.C. § 1621
(2000), charging that he had submitted a false declaration in
December 2004 and had falsely testified under oath at his
criminal trial that he had never appeared before an immigra-
tion judge. Castillo-Basa filed a motion to dismiss the perjury
indictment on the basis of “double jeopardy and collateral
estoppel.” Following argument by the parties, the district
court denied the motion. The district judge concluded that the
issue of Castillo-Basa’s veracity with regard to whether he
                UNITED STATES v. CASTILLO-BASA             2099
had attended a deportation hearing had not necessarily been
decided in the first trial. He opined as well that Castillo-Basa
had taken unfair advantage of the government’s inability to
locate the tape recording by giving perjured testimony and, in
so doing, had violated public policy and adversely affected
the integrity of the judicial process. Castillo-Basa now
appeals the denial of his motion to dismiss the indictment.

   We have jurisdiction under 28 U.S.C. § 1291 (2000). See
United States v. Cejas, 817 F.2d 595, 596 (9th Cir. 1987)
(providing for pretrial appeal under § 1291 of a motion to dis-
miss an indictment on the basis of collateral estoppel). We
review the denial of a motion to dismiss an indictment based
upon double jeopardy and collateral estoppel de novo. See
United States v. Hickey, 367 F.3d 888, 891 n.3 (9th Cir.
2004). “A district court’s factual findings, however, including
those on which a denial may be based, are reviewed for clear
error.” Id.

                              III

   The issue before us is not whether Castillo-Basa committed
perjury. Indeed, it would appear that he likely did. The ques-
tion, however, is whether the government is barred from try-
ing him for that wrongful conduct a second time, after a jury
has once decided that the testimony at issue was not false. We
recognize that the Double Jeopardy Clause, like some of our
other constitutional protections, may on occasion result in a
guilty individual’s escaping punishment. That is a price, how-
ever, that we are willing to pay in order to preserve the basic
liberties guaranteed by our Constitution. Were we to permit
the government to try individuals repeatedly for the same
offense, not only the guilty would ultimately be convicted.
Rather, the innocent too would, sooner or later, encounter a
jury that would be persuaded by the prosecutor’s arguments,
especially as the cost — physical, emotional, and financial —
of successive trials would frequently break the will and the
spirit of the unjustly accused and leave them without the
2100               UNITED STATES v. CASTILLO-BASA
strength or ability to conduct a successful defense. In many
cases the practical result would be that innocent persons,
being without the resources to counter the unlimited force
brought against them by the power of the state, would plead
guilty, sometimes to lesser offenses, sometimes to a lesser
number of serious charges. Such a system of justice would be
intolerable in our society. Instead, we have wisely opted for
a process in which an individual who has been adjudged not
guilty may not be charged again for the same offense or held
to answer more than once for conduct that the jury has
decided he did not commit. Under our constitutional rule,
once an issue, such as whether Castillo-Basa told the truth,
has been determined in his favor, rightly or wrongly, by a
jury, he may not again be compelled to defend himself on that
issue. Such is the law under our Bill of Rights, as we will
explain in greater detail below.

                                    IV

   [1] The Double Jeopardy Clause does not only bar a second
prosecution on the same charge of which a defendant has been
previously acquitted (or convicted). It also prevents the gov-
ernment from seeking to prosecute a defendant on an issue
that has been determined in the defendant’s favor in a prior
prosecution, regardless of the particular offense involved in
the earlier trial. Ashe v. Swenson, 397 U.S. at 443.3 In Ashe,
   3
     Castillo-Basa frames his argument on appeal as a claim based on “dou-
ble jeopardy and collateral estoppel.” As the Supreme Court has
explained, collateral estoppel in the criminal context — the protection
against the relitigation of issues previously determined — is “an integral
part of the protection against double jeopardy guaranteed by the Fifth and
Fourteenth Amendments.” Harris v. Washington, 404 U.S. 55, 56 (1971)
(per curiam). Accordingly, we use the terms “collateral estoppel” and
“double jeopardy” interchangeably and deliberately, as well as most
appropriately, bring “double jeopardy atmospherics into the equation.” See
dis. op. at 2123. To the extent that Castillo-Basa argues not that the per-
jury prosecution is barred by the concept of collateral estoppel, but that it
violates the well-known Blockburger test, his argument fails. Perjury and
illegal reentry each contains an element that the other offense does not.
See Blockburger v. United States, 284 U.S. 299, 304 (1932). Our rejection
of this claim is immaterial, however, because we reverse the district court
on the basis of the collateral estoppel aspect of double jeopardy.
                   UNITED STATES v. CASTILLO-BASA                       2101
the Supreme Court held that “[w]here a previous judgment of
acquittal was based upon a general verdict,” and where a
defendant seeks to invoke the collateral estoppel doctrine to
bar a subsequent prosecution regarding a particular issue, a
court is required “to ‘examine the record of a prior proceed-
ing, taking into account the pleadings, evidence, charge, and
other relevant matter, and conclude whether a rational jury
could have grounded its verdict upon an issue other than that
which the defendant seeks to foreclose from consideration.’ ”
Id. at 444 (quoting Daniel K. Mayers & Fletcher L. Yar-
brough, Bix Vexari: New Trials and Successive Prosecutions,
74 HARV. L. REV. 1, 38-39 (1960)). Put another way, “[w]hen
an issue of fact or law is actually litigated and determined by
a final and valid judgment, and the determination is essential
to the judgment, the determination is conclusive in a subse-
quent action between the parties, whether on the same or a
different claim.” United States v. Hernandez, 572 F.2d 218,
220 (9th Cir. 1978) (quoting RESTATEMENT (SECOND) OF JUDG-
MENTS § 68 (Tent. Draft No. 1, Mar. 28, 1973)) (internal quo-
tation marks omitted).4
  4
    The dissent would restrict the application of collateral estoppel to
issues of “ultimate fact.” See dis. op. at 2122. Such a restriction is com-
pletely without foundation. See Baker by Thomas v. Gen. Motors Corp.,
522 U.S. 222, 233 n.5 (1998) (explaining that collateral estoppel applies
to “issue[s] of fact or law”); United States v. Richard, 892 F.2d 761, 762
(9th Cir. 1989) (same), quoted in dis. op. at 2121; see also Hernandez, 572
F.2d at 221 n.3 (explaining that collateral estoppel applies to issues of
“evidentiary fact,” “ultimate fact,” and “law”). Even were the doctrine
cabined as the dissent would like, there is no support for the dissent’s
cramped and piecemeal definition of the term “ultimate fact.” See dis. op.
at 2122 (defining “ultimate fact” as “an essential element of the crime” or
“the identity of the perpetrator of the offense of which the defendant is
charged”). An “ultimate fact” is simply “[a] fact essential to the claim or
the defense.” BLACK’S LAW DICTIONARY 629 (8th ed. 2004). In this case,
a critical issue that the government seeks to relitigate in the perjury prose-
cution — whether Castillo-Basa was afforded a deportation hearing at
which he was present — clearly concerns facts that, as we will explain,
were essential to Castillo-Basa’s illegal reentry defense.
2102            UNITED STATES v. CASTILLO-BASA
  We have implemented Ashe’s charge through a three-step
process:

    (1) An identification of the issues in the two actions
    for the purpose of determining whether the issues are
    sufficiently similar and sufficiently material in both
    actions to justify invoking the doctrine; (2) an exam-
    ination of the record of the prior case to decide
    whether the issue was “litigated” in the first case;
    and (3) an examination of the record of the prior pro-
    ceeding to ascertain whether the issue was necessar-
    ily decided in the first case.

Id. Application of these three steps to Castillo-Basa’s case
makes clear beyond any doubt that collateral estoppel bars the
government’s perjury prosecution.

   [2] Beginning with the first step, the central question in
Castillo-Basa’s illegal reentry trial was whether he was
afforded a deportation hearing at which he was present. He
testified that he was not. Likewise, the ultimate issue in the
perjury prosecution would be whether Castillo-Basa lied
when he asserted that he was not afforded, and was not pres-
ent at, any deportation hearing. The issues in the two trials are
undoubtedly both “sufficiently similar” and “sufficiently
material.” Id. That is more than enough to satisfy the first step
of our collateral estoppel test. See, e.g., Richard, 892 F.2d at
762-63 (holding the first step satisfied where the issue in the
first trial was whether the defendant knew that his passengers
were illegal aliens and the ultimate issue in the second trial
was whether he had perjured himself by testifying and offer-
ing a trip log to show that he had not known); Hernandez, 572
F.2d at 220-21 (holding the first step satisfied where the issue
in the first trial was how many hours the defendant spent on
a certain type of work and the ultimate issue in the second
trial was whether he had perjured himself in giving his answer
to that question).
                UNITED STATES v. CASTILLO-BASA               2103
   [3] The record is similarly clear that the issue whether
Castillo-Basa was afforded a deportation hearing at which he
was present was “litigated” in the illegal reentry trial. Indeed,
Castillo-Basa litigated little else besides this issue. The gov-
ernment does not appear to dispute this fact; instead, it seems
to argue that Castillo-Basa cannot pass the second step of our
collateral estoppel test because, at the illegal reentry trial, it
lacked access to the tape of his deportation hearing, depriving
it of a full and fair opportunity to litigate the issue. The gov-
ernment’s argument fails for two reasons. First, there is no
rule, nor should there be, that an issue is not “litigated” for
purposes of collateral estoppel simply because a party fails to
present all of the evidence that it possesses or that it might
have obtained in support of its case. That is, the second step
of collateral estoppel does not require that an issue be “fully
and fairly” litigated to the maximum extent possible, only that
it be “litigated.” See Harris, 404 U.S. at 56-57 (reversing a
state court’s ruling that a second trial was permissible, despite
collateral estoppel, because a material issue had not been
“fully litigated” after the trial court excluded important incul-
patory evidence (internal quotation marks omitted)). Second,
even if the United States had been deprived of the full oppor-
tunity to litigate the issue of Castillo-Basa’s deportation hear-
ing, it was self-deprived. It simply failed to introduce the
evidence it possessed. No one else was at fault. The govern-
ment’s failure does not justify making an exception to the
Double Jeopardy Clause.

   The district court found only that the third step of our col-
lateral estoppel test — the “necessarily decided” requirement
— is not met. It is completely clear from the record, however,
that the question of a deportation hearing and Castillo-Basa’s
presence at it was “necessarily decided” in his illegal reentry
trial, and that he is therefore entitled to prevail with regard to
the third step. To obtain a conviction for illegal reentry, the
government must prove that a defendant (1) is an alien (2)
who was found in the United States without first obtaining
valid permission, and (3) who had been previously deported.
2104                UNITED STATES v. CASTILLO-BASA
United States v. Barragan-Cepeda, 29 F.3d 1378, 1381 (9th
Cir. 1994). Castillo-Basa expressly admitted the first two ele-
ments but strongly contested the third.

   [4] To prove previous deportation — the third element and
the only one in dispute at Castillo-Basa’s trial — the govern-
ment must establish, as the district court instructed the jury,
“[(1)] that a deportation proceeding occurred as to [the]
defendant and as a result, [(2)] a warrant of deportation was
issued and [(3)] executed by the removal of the defendant
from the United States.” Once again, Castillo-Basa conceded
two of these sub-elements — the second and third — and
rested his entire case on his denial of the first, testifying that
he had not been afforded, or been present at, a deportation
hearing. Given Castillo-Basa’s concessions, the “single ratio-
nally conceivable” basis on which the jury could have acquit-
ted him, see Ashe, 397 U.S. at 445, was that no deportation
proceeding had occurred with respect to him. Further, as we
explain below, the jury’s decision necessarily entailed a deter-
mination that Castillo-Basa was not present at any such hearing.5
  5
    Indeed, the Assistant United States Attorney who tried the illegal reen-
try case and who handled the double jeopardy hearing below, speaking on
behalf of the government, conceded in district court that the jury in the
illegal reentry case “absolutely . . . made a determination that [the govern-
ment] did not prove beyond a reasonable doubt that [Castillo-Basa] had
gone before an immigration judge. They definitely made that determina-
tion that the government’s evidence did not meet the burden of beyond a
reasonable doubt on that single element.” Regrettably, the AUSA who
made this truthful and accurate concession in the district court was
replaced with another AUSA for purposes of this appeal. The government,
through the new AUSA, completely reversed its position and argued on
appeal that “Castillo-Basa cannot meet his burden to show that the jury’s
not guilty verdict in his [illegal reentry] trial necessarily decided the ques-
tion of whether he was present at the . . . deportation hearing.” Although
we do not reach the issue, we note that this troubling reversal of position
may violate our established judicial estoppel doctrine. That doctrine pre-
cludes a party from taking a position in a legal proceeding that directly
contradicts an earlier position it took in the same or an earlier proceeding.
See Russell v. Rolfs, 893 F.2d 1033, 1037 (9th Cir. 1990) (quoting Reli-
                   UNITED STATES v. CASTILLO-BASA                       2105
The jury having so determined, collateral estoppel bars the
prosecution of Castillo-Basa at a second trial, for perjury, on
the basis of his testimony as to facts that the jury found to be
true.

   The conclusion that collateral estoppel applies is required
by our prior decisions as well as by the Constitution. In
United States v. Hernandez, a case in which the defendant’s
testimony “was part of his defense and . . . had to be weighed
by the jury,” and in which his testimony conflicted with the
government’s account of events, we held that “[t]he court was
required to resolve the conflicting explanations as part of its
decision upon the motion for judgment of acquittal” and thus
“ ‘necessarily’ had to pass upon the truthfulness of his
account.” 572 F.2d at 222. Therefore, we concluded, double
jeopardy barred a subsequent prosecution for perjury. Id. at
219. The government attempts to distinguish cases such as
Hernandez and United States v. Sarno, 596 F.2d 404, 408 (9th
Cir. 1979) — in which we held that collateral estoppel barred
a second prosecution for perjury — by arguing that in those
cases, “a prior jury verdict necessarily decided the issue of the
testifying defendant’s credibility . . . because the defendant’s
testimony was essentially the only evidence presented in con-
trast to the government’s case as to that element.” Here, as in
Hernandez and Sarno, the defendant’s testimony was the
principal evidence offered by the defense. As in those cases,
Castillo-Basa’s “explanation cannot have been simply a col-
lateral issue” because Castillo-Basa was the only witness the

gious Tech. Ctr. v. Scott, 869 F.2d 1306, 1311 (9th Cir. 1989) (Hall, Cir-
cuit Judge, dissenting)). The dissent points out, see dis. op. at 2130 (citing
United States v. Ogles, 440 F.3d 1095, 1099 (9th Cir. 2006) (en banc)),
that we are not bound by a party’s concession as to the meaning of a stat-
ute. Here, however, the disputed issue concerns a mixed question of law
and fact regarding what the jury did and did not actually decide under the
controlling law. See Russell, 893 F.2d at 1037-38 (applying judicial estop-
pel to a mixed question regarding the adequacy and availability of a state
court remedy in that particular case).
2106               UNITED STATES v. CASTILLO-BASA
defense presented. 572 F.2d at 222. In any case, as we have
noted, the jury need not directly decide the veracity of a
defendant’s testimony in the first trial for collateral estoppel
to bar a subsequent perjury prosecution — it is enough that
the jury decide an issue that is “sufficiently similar” to an
issue in the prospective second prosecution and that the simi-
lar issues are “sufficiently material” in both instances. Id. at
220.

   [5] Collateral estoppel applies when the jury resolves, in a
manner adverse to the government, an issue that the govern-
ment would be required to prove in order to obtain a perjury
conviction at the second trial. The jury at Castillo-Basa’s trial
necessarily decided the issue of whether Castillo-Basa was
afforded a deportation hearing at which he was present. It also
necessarily decided that his statements were not false.
Defense counsel’s closing argument, in which counsel pointed
out other circumstances tending to corroborate Castillo-Basa’s
testimony that he did not receive a hearing, was not itself evi-
dence on which the jury could have based its decision. More-
over, the jury could not have credited defense counsel’s
closing argument while simultaneously discrediting Castillo-
Basa’s testimony. Accordingly, the analysis applied in Her-
nandez and Sarno applies to this case as well.6
  6
    The decisions the dissent discusses — United States v. Williams, 341
U.S. 58 (1951), and Richard — hardly suggest a contrary result in this
case. The subsequent perjury prosecutions in Williams and Richard did not
violate collateral estoppel because the facts at issue in the perjury prosecu-
tions had not been necessarily decided in the earlier trials. In Hernandez
and Sarno, by contrast, as in this case, they had. The dissent appears to
believe that because it can point to decisions in which subsequent perjury
prosecutions were permitted, such prosecutions are permitted in all cases.
That is obviously not the law. Nor do we rely on the equally incorrect
sophism that because we can point to decisions in which subsequent per-
jury prosecutions were barred, they are always barred. The collateral
estoppel inquiry is more subtle than that, requiring us to “examine the
record of [the] prior proceeding,” including the “pleadings, evidence,
charge, and other relevant matter.” Ashe, 397 U.S. at 444 (quoting Mayers
& Yarbrough, supra, at 38-39) (internal quotation mark omitted).
                    UNITED STATES v. CASTILLO-BASA                        2107
   The government relies on three assertions to support its
argument that the issue of Castillo-Basa’s presence at a depor-
tation hearing was not necessarily decided. All three are irrel-
evant and are based on fallacious reasoning. First, the
government asserts that physical presence at a deportation
hearing is not required to prove previous deportation. This
assertion is correct but it is of no assistance to the government
here. The government’s argument that the jury may have
resolved the issue of previous deportation without passing on
the question of Castillo-Basa’s presence at a hearing suffers
from a fatal and insuperable flaw.

   [6] The government’s logic, which the dissent reiterates, is
demonstrably faulty — the conclusion does not follow from
its premise. When determining whether an issue was “neces-
sarily decided” for purposes of collateral estoppel, we must
start with the outcome of the previous proceeding; the answer
may differ depending on whether the defendant was convicted
or acquitted, and, here, it necessarily does.7 Whether the gov-

   The dissent’s O.J. Simpson hypothetical borders on the absurd. There
is no reason to think that had the jury disbelieved Simpson’s testimony
about not owning the type of shoes that left bloody footprints at the crime
scene, “they certainly would have convicted.” Dis. op. at 2127. The shoe
testimony was hardly the “single rationally conceivable” basis on which
the jury could have acquitted Simpson. Perhaps the dissent forgets that the
glove didn’t fit (or even the unfortunate non-legal reasons on which the
jury may have actually based its decision, including the unprecedented
imbalance in legal skills between the Dream Team and the prosecution).
   7
     The dissent’s assertion that “[i]f [an] issue is an element of the underly-
ing offense or is an integral part of an element, then the issue was ‘neces-
sarily decided’ in the first trial,” dis. op. at 2124, could not be more
wrong. Consider a crime with two elements, A and B. A jury may acquit
a defendant of this crime by determining that element A has not been sat-
isfied, and pass no judgment whatsoever on element B. Element B need
not be decided in order for the jury to acquit. This alone disproves the dis-
sent’s theory. The dissent’s proposition holds true only when a jury con-
victs a defendant; to convict a defendant of our hypothetical crime, for
2108                UNITED STATES v. CASTILLO-BASA
ernment could convict Castillo-Basa without proving that he
had been physically present at a hearing, which it could, is a
very different question from whether a jury could acquit him
without deciding that “a deportation proceeding [did not]
occur[ ] as to [him].” Here, given the evidence and the argu-
ments before it, the jury could not have acquitted Castillo-
Basa without deciding that he had not been afforded a depor-
tation hearing,8 and thus that he had not been physically pres-

example, the jury must necessarily determine that both elements A and B
are satisfied. Furthermore, even if the dissent’s assertion were correct —
which it is not — it would in no way follow, as a matter of logic, that
when an issue is not an element of an offense, then that issue was not nec-
essarily decided. See dis. op. at 2123. We have often held that an issue was
“necessarily decided” at a trial even when the issue was not an element of
the offense in question. See, e.g., Sarno, 596 F.2d at 408 (holding that the
veracity of the defendant’s testimony had been necessarily decided in a
trial for bribery, of which veracity is not an element).
   There are two major problems with the dissent’s assertion that an issue
is “necessarily” decided if and only if it is an element of the offense. First,
were the dissent’s theory correct, the requirement in our case law that the
previously decided issue be “material,” see Hernandez, 572 F.2d at 220,
would be entirely superfluous. Issues that are elements of the offense are
always material. The inclusion of the materiality requirement in our collat-
eral estoppel test therefore demonstrates that the collateral estoppel doc-
trine applies to issues other than elements of the offense. Second, were the
collateral estoppel inquiry as simplistic as the dissent makes it out to be,
requiring only an examination of the elements of the crime, we could con-
duct the inquiry simply by looking to the verdict and to the elements of
the offense. There would be no need to follow the Supreme Court’s
instruction “to ‘examine the record of a prior proceeding, taking into
account the pleadings, evidence, charge, and other relevant matter, and
conclude whether a rational jury could have grounded its verdict upon an
issue other than that which the defendant seeks to foreclose from consider-
ation.’ ” Ashe, 397 U.S. at 444 (quoting Mayers & Yarbrough, supra, at
38-39).
   8
     In its brief, the government acknowledges that “to meet its burden of
proof of a prior deportation, ‘the government . . . needs to prove that a
deportation proceeding actually occurred with the end result of [the defen-
dant] being deported.’ ” (alteration in original) (quoting United States v.
Medina, 236 F.3d 1028, 1031 (9th Cir. 2001)). As demonstrated earlier,
whether such a hearing was held with respect to Castillo-Basa was the
only disputed material issue in the case.
                UNITED STATES v. CASTILLO-BASA               2109
ent at any such hearing. To suggest otherwise, as the
government does here, is nonsensical: no rational jury could
have decided that Castillo-Basa had been present at his depor-
tation hearing yet that no such proceeding had been held.
Because the jury acquitted Castillo-Basa on the ground that
no deportation proceeding had occurred, it must necessarily
have decided that he was not present at any such hearing.
While the jury’s resolution of that issue alone is enough to
satisfy the third component of the collateral estoppel test, it
also follows inexorably that the jury decided that Castillo-
Basa’s testimony — that he was not present at a deportation
hearing — was not untruthful.

   [7] The government argues, second, that Castillo-Basa lev-
eled at least eight different attacks on its evidence at the ille-
gal reentry trial — such as “the absence of any tape recording
and transcript of Castillo-Basa’s . . . immigration hearing” or
“the Government’s failure to produce records from the facility
at which Castillo-Basa was held in custody to show who par-
ticipated in immigration proceedings” — and that the jury
may have acquitted Castillo-Basa based on these evidentiary
gaps, without specifically determining the credibility of his
testimony. Every one of Castillo-Basa’s attacks on the gov-
ernment’s case, however, simply sought to bolster the direct
evidence offered by way of his testimony, and each such
argument related to the same underlying question: whether
Castillo-Basa was present at a deportation hearing. Moreover,
even if the jury relied upon one or several of Castillo-Basa’s
other assertions, and not his testimony, it would be impossible
for the jury to have acquitted him without simultaneously
finding that the government had failed to prove that he was
present at a hearing, and that his testimony was not untruthful.
In other words, Castillo-Basa necessarily prevailed on the
issue of whether he was present at a deportation hearing and
thus on whether his testimony was truthful. Even given the
other evidentiary gaps, the jury “was required to resolve the
conflicting explanations” given by Castillo-Basa and the gov-
ernment regarding Castillo-Basa’s presence at a hearing. Her-
2110               UNITED STATES v. CASTILLO-BASA
nandez, 572 F.2d at 222. “Thus, [it] ‘necessarily’ had to pass
on the truthfulness of his account.” Id. This, as well as the
jury’s finding that no hearing was conducted, is enough to
invoke double jeopardy. See id.

   Third, the government argues that “the jury may simply
have found that the Government simply failed to meet its bur-
den of proof that Castillo-Basa was deported.” The argument
is not entirely clear. In any event, it fails no matter how we
interpret it. If the government’s argument is, as it appears to
be, that the jury may have found “only” a reasonable doubt as
to Castillo-Basa’s presence at a deportation hearing, rather
than having found to a certainty that he did not attend such a
hearing, the argument is foreclosed by our precedent, as well
as by the most elementary understanding of our system of
criminal justice. All that is required to bar a second criminal
trial on an issue that has been litigated and once decided is a
determination that the government did not prevail on that
issue the first time. An acquittal based on a finding that the
government failed to prove its case beyond a reasonable doubt
is sufficient to bar retrial on any material issue that was liti-
gated and necessarily decided in the trial. See, e.g., Sarno, 596
F.2d at 406, 408. “Decided” in a criminal case always means
only that the jury had a reasonable doubt. Were we now to
conclude otherwise, it would not only fundamentally change
our system of jurisprudence, but it would render every acquit-
tal by a jury meaningless for purposes of double jeopardy: a
jury can always be said to have concluded only that the prose-
cution failed to prove its case beyond a reasonable doubt.9 If,
  9
   For this reason, it is enough that the jury in Castillo-Basa’s first trial
may have found only a reasonable doubt as to whether Castillo-Basa’s tes-
timony was untruthful. The entire purpose of the perjury prosecution
would be to relitigate this exact finding and to prove that there is no rea-
sonable doubt that Castillo-Basa was untruthful. In other words, because
the first jury was compelled to decide whether Castillo-Basa had had a
deportation hearing, and because it decided that there was at least reason-
able doubt as to the matter (regardless of how it reached that conclusion),
                   UNITED STATES v. CASTILLO-BASA                       2111
rather than making the confounding argument that an acquittal
on the ground of reasonable doubt does not count for purposes
of double jeopardy, and thus, contrary to over 200 years of
constitutional jurisprudence, that the Clause is of no practical
significance whatsoever, the government’s argument is that
the jury in Castillo-Basa’s illegal reentry case may have found
that it failed to prove some other aspect of the illegal reentry
charge, its argument fails because it is contrary to the facts
and the law. A jury is presumed to have followed the instruc-
tions it is given and, as explained above, Castillo-Basa con-
ceded every element of the criminal charge other than the
issue of whether he was afforded, and was present at, a depor-
tation hearing.

                                     V

    [8] The government attempts to carve out of the Double
Jeopardy Clause an exception that we have never recognized
and never should. The government suggests that its perjury
prosecution is permissible because, at the first trial, “the
United States lacked crucial evidence of Castillo-Basa’s
untruthfulness” — to wit, the “previously unavailable” tape
recording of the deportation hearing. We reject the govern-
ment’s suggestion for two reasons. First, there is no basis
whatsoever for an exception providing that the proffer of evi-
dence that was in existence at the time of the first trial, but
was not presented by the government at that trial, nullifies the
protections afforded by the Fifth Amendment. Even in civil
litigation, each party bears the consequences of its own inade-
quate litigation efforts and its presentation of insufficient evi-
dence. See Moore’s Federal Practice §§ 132.02[2][d] & [e]

it also necessarily decided that there was reasonable doubt about the gov-
ernment’s contention that Castillo-Basa was lying about his presence at a
hearing — it cannot have remained agnostic on that question. This latter
determination was identical to the one a new jury would be asked to
resolve, only the opposite way, at a perjury trial. Such an attempt at reliti-
gation would necessarily violate the Double Jeopardy Clause.
2112                UNITED STATES v. CASTILLO-BASA
(3d ed. 2005).10 In the criminal context, the Fifth Amendment
bolsters this principle, barring the government from treating
any criminal trial as a “dry run.” Ashe, 397 U.S. at 447.11
Plainly the government could not prosecute a second time a
defendant acquitted of murder because after the acquittal it
discovered the murder weapon bearing the defendant’s finger-
prints. The government’s argument in this case is deserving
of no different treatment. The Fifth Amendment, as inter-
preted in Ashe v. Swenson, bars relitigation of an issue already
decided, no matter how much additional evidence the govern-
ment may wish to introduce at a second proceeding. See Har-
ris, 404 U.S. at 56-57 (reversing a state court decision that,
despite collateral estoppel, permitted retrial because important
inculpatory evidence had been, in the state court’s view,
wrongly excluded); id. (holding that collateral estoppel
applies “irrespective of whether the jury considered all rele-
vant evidence, and irrespective of the good faith of the States
in bringing successive prosecutions”). The government has at
its disposal a wide selection of tools for gathering evidence to
prosecute criminal defendants. Under the Double Jeopardy
Clause, that privilege is accompanied by the concomitant
responsibility to use the tools at the appropriate time. That
time is before or during the first prosecution, not afterwards
in an effort to justify a second attempt to obtain a conviction.12
  10
      See also Hernandez, a criminal case, in which we set forth with
approval the pertinent Commentary from the Restatement of Law: “An
issue on which relitigation is foreclosed may be one of evidentiary fact,
of ‘ultimate fact’ (i.e., the application of law to fact), or of law. . . . Thus,
for example, if the party against whom preclusion is sought did in fact liti-
gate an issue of ultimate fact and suffered an adverse determination, new
evidentiary facts may not be brought forward to obtain a different determi-
nation of the ultimate fact.” 572 F.2d at 221 n.3 (quoting RESTATEMENT
(SECOND) OF JUDGMENTS § 68 cmt. c (Tent. Draft No. 1, Mar. 28, 1973))
(internal quotation marks omitted).
   11
      Thus, there is, and could be, no parallel to Federal Rule of Civil Pro-
cedure 60 — which permits relief from a final judgment based on newly
discovered evidence — in criminal cases.
   12
      In Sarno, we held that a subsequent perjury prosecution was barred
because the defendant prevailed at all three steps of our traditional collat-
                    UNITED STATES v. CASTILLO-BASA                       2113
   [9] Second, even under the exception the government pro-
poses — permitting a second trial when it obtains evidence
that was “previously unavailable” — its argument fails com-
pletely in this case. The “United States” did not come into
possession of previously unavailable evidence after the first
trial — the tape recording was in the government’s possession
all along. The government failed to produce the tape before
trial, even when the district court twice ordered it to do so.
Were we to hold that the tape was “previously unavailable”
although it was in the government’s possession during the
illegal reentry trial, our decision would allow government
incompetence (or even insidiousness) to trump the established
protections of the Double Jeopardy Clause. This is not a sen-
sible or acceptable interpretation of our prior decisions, or of
our Constitution.

   [10] To hold that evidence is “unavailable” to the govern-
ment when the government possesses it but fails to deliver it
to the attorney handling a particular case would be wrong,
both factually and legally. To do so would be to ignore the
reality of the entity that criminal prosecutions pit individuals
against, the entity from whose overreaching the Constitution
seeks to protect its citizens. At the same time, it would vitiate

eral estoppel test. In an introductory passage, we stated, as the dissent
notes, dis. op. at 2129, that “unless the subsequent perjury indictment is
based upon evidence which was not available at the first trial, it would
appear that the government would be merely trying to recover from its ini-
tial failure to convince the trier of fact of the falsity of defendant’s testi-
mony at the first trial. Such a rehashing of evidence previously presented
would clearly be prohibited by the collateral estoppel doctrine.” Sarno,
596 F.2d at 407 (citing Note, Perjury by Defendants: The Uses of Double
Jeopardy and Collateral Estoppel, 74 HARV. L. REV. 752, 763 (1961))
(citation omitted). We subsequently, as the dissent also notes, firmly dis-
avowed this dicta from Sarno. See Richard, 892 F.2d 762. In any event,
Sarno, while affirming that a rehash of the evidence is prohibited by the
Double Jeopardy Clause, did not determine that when the government
does offer evidence that was unavailable at the first trial, its introduction
is sufficient to circumvent the collateral estoppel doctrine. Nor could it
have done so under the Double Jeopardy Clause.
2114               UNITED STATES v. CASTILLO-BASA
the Constitution’s guarantee that an accused will not be com-
pelled to defend himself more than once against allegations
that have been resolved by a valid and final judgment. A
defendant’s opposing party in a criminal proceeding is not the
state’s attorney, but “the state” itself. Indeed, in an analogous
context, we have held that evidence possessed by the FBI is
in the custody of “the government” although the attorney for
the government has not received it. See United States v. Bail-
leaux, 685 F.2d 1105, 1113-14 (9th Cir. 1982) (Rule 16 dis-
covery). We have also held that the government may violate
the rule of Brady v. Maryland, 373 U.S. 83 (1963), by failing
to disclose exculpatory evidence that is within the possession
of “the government” as a whole, even where the prosecutor
himself does not possess it. See United States v. Blanco, 392
F.3d 382, 388 (9th Cir. 2004). That the government itself, not
the prosecutor, is the adversary party for purposes of the Dou-
ble Jeopardy Clause, and thus that material in the possession
of the government is not “unavailable,” is, under our system
of criminal justice, even more apparent.13
   13
      The dissent’s citation to United States v. Dipp, 581 F.2d 1323 (9th
Cir. 1978), to suggest that the tape was “not available” is highly inaccurate
and misleading. See dis. op. at 2129. In Dipp, we affirmed a perjury con-
viction obtained subsequent to an earlier acquittal although, in the perjury
prosecution, the government used a tape that it had possessed but had not
produced during discovery for the first trial. Id. at 1324-25, 1328. In
rejecting Dipp’s collateral estoppel defense, however, we concluded only
that the jury at Dipp’s first trial had not necessarily passed on the veracity
of Dipp’s testimony in acquitting him, or on any other issue “sufficiently
similar” to invoke collateral estoppel’s bar. Therefore, under our three-part
test, collateral estoppel did not apply. Id. at 1326. The use of the tape and
its previous availability or non-availability was irrelevant to this part of
our decision. There is no mention of the tape anywhere in the portion of
the opinion that discusses collateral estoppel. The tape is first discussed in
a subsequent section of the opinion that considers Dipp’s prosecutorial
misconduct claim — a claim we rejected because Dipp failed to show that
the government had intentionally withheld the tape in order to induce him
to commit perjury. Id. at 1327. There is, of course, no discussion in Dipp
of whether the “government” and the “prosecutor” are different entities
such that evidence newly available to a “prosecutor” before a second trial,
though in the “government’s” possession all along, justifies disregarding
                    UNITED STATES v. CASTILLO-BASA                       2115
                                     VI

   Our decision today does not create a per se bar against per-
jury prosecutions involving defendants who testify and are
acquitted at trial.14 The dissent exhibits its misapprehension of
the doctrine of collateral estoppel when it asserts that “[a]ny

the collateral estoppel doctrine and subjecting a defendant to further jeop-
ardy. In short, Dipp’s collateral estoppel defense failed because he could
not meet our basic three-part test — the question of the tape was wholly
irrelevant to our analysis of that issue and played no part in our decision
to permit a second trial regarding an issue that had not been resolved in
the first.
   Dipp did not even remotely consider the question that the government
says it helps us answer: when a jury has necessarily passed on the veracity
of the defendant’s testimony, does the government’s subsequent “discov-
ery” of additional evidence that was in its possession during the first trial
permit it to try the defendant for perjury notwithstanding collateral estop-
pel? Surely, had it done so, its answer would have been No, as it is here.
   14
      We are not concerned, therefore, with the danger that our decision will
encourage or embolden criminal defendants to perjure themselves at trial
when they otherwise would not have done so. Most defendants, we think,
will be concerned with the impact of their testimony only on the prosecu-
tion that immediately threatens their freedom, and not on potential future
prosecutions for perjury should they be acquitted. In addition, it is difficult
to predict before a trial is completed when collateral estoppel will bar reli-
tigation of particular issues in that trial, making collateral estoppel a
highly uncertain safeguard against a potential perjury prosecution. The far
more pressing danger in cases such as this one is that if we accept the gov-
ernment’s arguments, the prosecution, having failed to convict a criminal
defendant of the charges for which it originally arrested him, will try once
again by bringing similar charges in the form of a perjury case and thus
will succeed in circumventing the Double Jeopardy Clause.
   Moreover, the possibility of receiving a sentencing enhancement for
obstruction of justice serves as a sufficient and immediate deterrent to per-
jury by criminal defendants. See U.S. SENTENCING GUIDELINES MANUAL
§ 3C1.1 & cmt. n.4(b) (2006); United States v. Dunnigan, 507 U.S. 87, 98
(1993) (upholding application of a sentencing enhancement based on per-
jury at trial). Where the prospect of an enhanced sentence does not deter
a particular defendant from committing perjury, we do think that the pros-
pect of a separate perjury prosecution will.
2116                UNITED STATES v. CASTILLO-BASA
material lie a defendant uses to get an acquittal . . . will now
be immune from prosecution for perjury because after all, the
jurors must have believed it in order to acquit.” Dis. op. at
2130-31 (emphasis removed).15 Our ruling establishes no such
automatic immunity. When an acquitting jury has not neces-
sarily or actually decided the question of a defendant’s verac-
ity, or a material issue sufficiently similar to one the
prosecution must establish in the prospective second proceed-
ing, collateral estoppel does not bar a subsequent trial for per-
jury. See, e.g., Richard, 892 F.2d at 762.16 In reality, our
ruling in Castillo-Basa’s favor merely serves to apply the
well-established rule that where an issue actually is decided
in reaching a valid and final judgment, collateral estoppel bars
relitigation of that issue. In broader terms, our decision today
merely enforces the Double Jeopardy Clause as this court has
long interpreted it.

  [11] We reverse and remand with instructions to the district
court to dismiss the perjury indictment against Castillo-Basa.

   REVERSED.




  15
      Indeed, it is the dissent that hints at a per se rule by quoting platitudes
about how defendants “must testify truthfully or suffer the consequences.”
Dis. op. at 2117 (quoting United States v. Havens, 446 U.S. 620, 626
(1980)). The dissent makes it sound as if collateral estoppel is never a bar
to a subsequent perjury prosecution of an acquitted defendant, which is
obviously not the law. See, e.g., Sarno, 596 F.2d at 408; Hernandez, 572
F.2d at 222.
   16
      In both Richard and Dipp, this court permitted perjury prosecutions
subsequent to acquittals because the issues presented in the perjury trials
had not necessarily been decided in the earlier criminal proceedings. The
rule that under such circumstances a perjury trial may be held remains
unchanged under our decision.
                UNITED STATES v. CASTILLO-BASA                 2117
TROTT, Senior Circuit Judge, dissenting:

    The right guaranteed by law to a defendant [to testify
    on his own behalf] is narrowly the right to testify
    truthfully in accordance with the oath — unless we
    are to say that the oath is mere ritual without mean-
    ing. This view of the right involved is confirmed by
    the unquestioned constitutionality of perjury statutes,
    which punish those who willfully give false testi-
    mony.

United States v. Grayson, 438 U.S. 41, 54 (1978).

    We have repeatedly insisted that when defendants
    testify, they must testify truthfully or suffer the con-
    sequences.

United States v. Havens, 446 U.S. 620, 626 (1980).

   In this case, we must decide whether the doctrine of collat-
eral estoppel precludes the government from prosecuting
Buenaventura Castillo-Basa for perjury arising from what
appears to be a material lie under oath he gave in an earlier
trial, where a jury acquitted him of the crime of being a
deported alien found in the United States. The government
alleges that Castillo-Basa testified falsely in that prior trial
when he insisted that he never attended the deportation hear-
ing that resulted in his physical removal from the United
States. I conclude from the record that Castillo-Basa has not
carried his burden of showing that the precise question of his
non-essential attendance at the deportation hearing was “nec-
essarily decided” by the jury in his previous trial, and there-
fore conclude — as did the trial judge — that collateral
estoppel does not bar the government from prosecuting
Castillo-Basa for perjury.
2118              UNITED STATES v. CASTILLO-BASA
                                    I

   In June 2004, Buenaventura Castillo-Basa1 was indicted for
being a deported alien found in the United States, in violation
of 8 U.S.C. § 1326. The elements of this crime are (1) that the
defendant is an alien, (2) that he was deported from the
United States, and (3) that he reentered without the permis-
sion of the proper authorities. See 9th Cir. Crim. Jury Instr.
9.5 (2007). As the government correctly argues, an alien may
be deported in absentia. United States v. Hinojosa, 206 F.3d
832, 836-37 (9th Cir. 2000) (affirming § 1326 conviction
founded upon deportation entered in absentia). Thus, pres-
ence at the deportation hearing is not an element of this crime.
The defense conceded during his trial that Castillo-Basa is an
alien and that he was found within the United States without
permission to enter. The only disputed element of the charge
was whether Castillo-Basa had previously been deported.

   The government informed the district court that an audio
tape recording of Castillo-Basa’s deportation hearing existed,
but that the tape recording could not be located. The district
court ordered the government to produce the tape recording,
but, after further searching, the government could not find it.

   After the government disclosed that it could not locate the
tape recording, Castillo-Basa announced that he had never
attended a deportation hearing, which, he argued, created an
inference that he had not been deported. To support this the-
ory, Castillo-Basa submitted a signed declaration in support
of a motion in limine to dismiss the indictment stating that he
never appeared before an immigration judge prior to his phys-
ical removal from the United States. Relying on official docu-
ments and testimony indicating that Castillo-Basa had been
deported, as described in the majority opinion, the district
court denied the motion to dismiss.
  1
   Two spellings of “Castillo-Basa” appear in the record. I use the spell-
ing from Castillo-Basa’s appellate briefs.
                UNITED STATES v. CASTILLO-BASA              2119
   Castillo-Basa testified in his own defense at trial. He told
the jury that he was served with a notice to appear at his April
30, 1996, deportation hearing, but that on that day, no one
came to get him out of his cell. Castillo-Basa’s attorney iden-
tified Castillo-Basa’s testimony as only one of eight reasons
why the government failed to prove that Castillo-Basa had
been deported. The defects counsel identified with respect to
the elements of deportation included:

    1.   No fingerprint or photograph on the deportation
         order;

    2.   The government’s failure to call the Immigra-
         tion Judge as a witness;

    3.   The government’s failure to present the “master
         list” from the proceedings, which should have
         included Castillo-Basa’s name if he had been
         deported;

    4.   The absence of a tape recording or transcript of
         the deportation proceedings;

    5.   The failure to produce detention records; and

    6.   The “fact” that persons in deportation hearings
         often give false names.

  The jury returned a general verdict form finding Castillo-
Basa not guilty.

   Less than two weeks after the jury returned its verdict, the
government discovered the tape recording of Castillo-Basa’s
deportation hearing. The government alleges that all of the
information heard on the tape recording indicates that the
individual who responded to the questions directed at
Castillo-Basa actually was Castillo-Basa. On the tape, the
Immigration Judge read the names of twenty-four individuals
2120           UNITED STATES v. CASTILLO-BASA
present at the deportation hearing, including “Buenaventura
Castillo-Basa.” The Immigration Judge then questioned each
person individually. When he read Buenaventura Castillo-
Basa’s name, an individual responded. That individual admit-
ted that he was convicted in December 1985 in San Diego
County for a serious crime that he committed in August 1985,
for which he received a sentence of seven years. The individ-
ual indicated also that he was imprisoned for ten years and
eight months. The Immigration Judge ordered that individual
deported.

   Buenaventura Castillo-Basa, the defendant in this case, had
in fact been arrested in August 1985 in San Diego County for
robbery with use of a weapon, robbery, sodomy with force,
oral copulation with force, and kidnaping. He pleaded guilty
and was convicted in December 1985. The highest sentence
that he received on a single count was seven years for the sod-
omy charge. The sentences were ordered to run consecutively
for a total of twenty-one years. Finally, Castillo-Basa served
ten years and eight months in prison.

   After reviewing the tape recording, the government decided
to pursue perjury charges against Castillo-Basa. The govern-
ment presented the tape recording to a grand jury, which
returned a two count indictment against him. The first count
alleges that Castillo-Basa committed perjury in violation of 18
U.S.C. § 1621(2) when he submitted a declaration indicating
that he had never appeared before an immigration judge prior
to May 2, 1996. The second count alleges that he committed
perjury in violation of 18 U.S.C. § 1621(1) when he testified
at trial that he had not appeared before an immigration judge
in April or May of 1996.

   On September 9, 2005, Castillo-Basa filed a motion based
upon grounds of double jeopardy and collateral estoppel to
dismiss the indictment. The district court denied the motion,
concluding that the issue of Castillo-Basa’s veracity with
regard to whether he attended the deportation hearing was not
                  UNITED STATES v. CASTILLO-BASA                    2121
necessarily decided in the first trial. The district court deter-
mined also that Castillo-Basa had taken unfair advantage of
the government’s inability to locate the tape recording by giv-
ing perjured testimony, and in so doing, violated public policy
and denigrated the integrity of the judicial process. The dis-
trict court certified the issue for interlocutory appeal, and
Castillo-Basa now appeals the denial of the motion to dismiss
the indictment.

                                   II

   Castillo-Basa argues that collateral estoppel bars the gov-
ernment from prosecuting him for perjury because the jury
from his previous trial, by acquitting him, necessarily deter-
mined that Castillo-Basa was not present at the deportation
hearing. I disagree.

   Collateral estoppel applies to criminal cases through the
Fifth Amendment protection against double jeopardy. Ashe v.
Swenson, 397 U.S. 436, 443-46 (1970). Collateral estoppel
differs markedly from double jeopardy itself.2 The doctrine
“bars a perjury prosecution after acquittal on substantive
charges when an issue of fact or law [upon which the perjury
charge is based] is actually litigated and determined by a final
and valid judgment, and the determination is essential to the
judgment.” United States v. Richard, 892 F.2d 761, 762 (9th
Cir. 1989) (per curiam) (quotation marks and citation omit-
ted). Moreover, when the term “issue” is used in this context,
  2
   The Supreme Court has recognized that collateral estoppel is a separate
doctrine from double jeopardy. Ashe, 397 U.S. at 442-43. Double jeopardy
protects against a second prosecution for the same offense after acquittal
or conviction. “It would be no service to the administration of justice to
enlarge the conception of former jeopardy to afford a defendant immunity
from prosecution for perjury while giving testimony in his own defense.”
United States v. Williams, 341 U.S. 58, 62 (1951). Castillo-Basa’s double
jeopardy argument fails because the elements of perjury are different from
the elements of being a deported alien found in the United States. See
Blockburger v. United States, 284 U.S. 299, 304 (1932).
2122            UNITED STATES v. CASTILLO-BASA
it refers not to secondary or subsidiary points of contention in
a trial, but normally to “issues of ultimate fact.” “[In Ashe v.
Swenson,] [w]e defined the collateral-estoppel doctrine as
providing that ‘when an issue of ultimate fact has once been
determined by a valid and final judgment, that issue cannot
again be litigated between the same parties in any future law-
suit.’ ” Dowling v. United States, 493 U.S. 342, 347 (1990)
(quoting Ashe, 397 U.S. at 443) (emphasis added). What is an
issue of “ultimate fact?” It is either (1) an essential element
of the crime, or (2) the identity of the perpetrator of the
offense of which the defendant is charged, not just a dispute
about a fact from which inferences might be drawn about the
elements. The Court did not say “an issue of fact,” it said an
issue of “ultimate fact.”

   In cases involving a prior judgment of acquittal announced
in a general verdict, a three-step process determines whether
collateral estoppel applies:

    (1) An identification of the issues in the two actions
    for the purpose of determining whether the issues are
    sufficiently similar and sufficiently material in both
    actions to justify invoking the doctrine; (2) an exam-
    ination of the record of the prior case to decide
    whether the issue was “litigated” in the first case;
    and (3) an examination of the record of the prior pro-
    ceeding to ascertain whether the issue was necessar-
    ily decided in the first case.

United States v. Hernandez, 572 F.2d 218, 220 (9th Cir.
1978). The defendant bears the burden of proving that collat-
eral estoppel applies. Dowling, 493 U.S. at 350-51 (1990); see
also Richard, 892 F.2d at 763; United States v. Gugliaro, 501
F.2d 68, 70 (2d Cir. 1974).

   We need not decide whether Castillo-Basa’s claim satisfies
the first two requirements of this test, because his defense
runs aground on the third: whether the issue was “necessarily
                UNITED STATES v. CASTILLO-BASA                2123
decided” in the first case. Did the jury “necessarily decide”
one way or the other — as an issue of ultimate fact —
whether Castillo-Basa attended his deportation hearing? My
answer is “no.”

   I note that we are applying part of a test that is comprised
of two words, not one. The words are (1) “necessarily” and
(2) “decided.” In Ashe, the two words are “actually deter-
mined.” 397 U.S. at 442. With all respect, where the majority
opinion’s analysis errs is in failing to accord sufficient weight
and meaning to “necessarily.” In my view, the addition of this
demanding modifier means something, and it means at a
minimum that short of a special verdict, and as indicated in
Ashe and Dowling, disputes that are not themselves issues of
ultimate fact, i.e., including the identity of the perpetrator ele-
ments of the crime charged are not “necessarily” decided by
a general verdict, one way or the other. My colleagues are
certainly correct that not guilty verdicts are sometimes diffi-
cult to decipher, but collateral estoppel — or issue preclusion
— is different from double jeopardy. Their analysis, however,
blurs the distinction and mistakenly brings unwarranted dou-
ble jeopardy atmospherics into the equation where they do not
belong, highlighting those principles in the first sentence of
their opinion as well as in the opening paragraphs. The major-
ity opinion apparently disfavors trying anyone twice, no mat-
ter what the distinctions are, and I’m afraid this basic premise
drives the result in this case. Double jeopardy per se does not
protect a perjurer from a subsequent prosecution for perjury,
even if he is an acquitted defendant; and collateral estoppel
saves a perjurer only if somehow the precise issue he lied
about was “actually determined” as an issue of ultimate fact
by the fact finder.

   The proof of this pudding is in the unconvincing argument
based upon inconclusive circumstantial evidence that the jury
had to have decided that Castillo-Basa was telling the truth
about his absence from the hearing in order to acquit. My col-
leagues claim that the jury “necessarily decided that Castillo-
2124            UNITED STATES v. CASTILLO-BASA
Basa’s statements were not false.” I do not agree. It is just as
likely that all that happened is that the defendant’s testimony
raised circumstantially a reasonable doubt in the minds of the
jurors that he had been deported, not that they “actually deter-
mined” that he did not attend the hearing. I would concede
that if the perjury charge were based on his testimony to the
effect that he was “not deported,” collateral estoppel might
apply, but the perjury allegation is based on his specific testi-
mony that he did not attend the hearing. In the present equa-
tion, and given the importance of the truth to our justice
system, therein resides a difference with a distinction. To con-
clude otherwise ignores strong public policy consideration. As
my colleagues concede, there is sufficient reason to believe
that Castillo-Basa has gamed the process and cheated an
acquittal from the system.

   Three sets of facts and circumstances demonstrate that the
jury did not “necessarily decide” (or “actually determine”)
whether Castillo-Basa attended the deportation hearing.

   First, we evaluate the district court’s instructions to the
jury. See United States v. Sarno, 596 F.2d 404, 408 (9th Cir.
1979) (evaluating the jury instructions to determine what the
jury “necessarily decided”). If the issue is an element of the
underlying offense or is an integral part of an element, then
the issue was “necessarily decided” in the first trial. Here,
Castillo-Basa’s presence at the deportation hearing was nei-
ther an element of the crime nor an integral part of an ele-
ment. The jury instruction reads,

    As to the element of a prior deportation, the govern-
    ment must prove beyond a reasonable doubt that a
    deportation proceeding occurred as to that defendant
    and as a result, a warrant of deportation was issued
    and executed by the removal of the defendant from
    the United States.

Indeed, the district court rejected Castillo-Basa’s request to
give an instruction that would have made his presence at the
               UNITED STATES v. CASTILLO-BASA                2125
deportation hearing an element of the crime. The rejected
instruction reads,

    In order for you to find that Mr. Castillo was
    deported, the government must prove beyond a rea-
    sonable doubt that an [sic] Mr. Castillo was physi-
    cally present at a hearing before an immigration
    judge, and that the immigration judge entered a final
    order of deportation against Mr. Castillo.

(emphasis added). The district court’s rejection of this pro-
posed instruction demonstrates that the jury did not “necessar-
ily decide” whether Castillo-Basa was present at his
deportation hearing.

   Second, we consider the trial court’s response to jury ques-
tions to determine whether it sheds light on what the jury
“necessarily decided.” See Sarno, 596 F.2d at 408 (evaluating
the jury’s questions to determine what the jury “necessarily
decided”). During deliberations, the jury submitted a question
to the trial judge. The judge responded,

    The first question is, in a deportation hearing must a
    defendant be present in front of a judge when not in
    absentia?

    The answer is as follows: No, but you can consider
    whether or not the defendant was present before the
    immigration judge in deciding whether or not a
    deportation proceeding actually occurred as to the
    defendant.

(emphasis added). In other words, the jury was not required
to decide whether Castillo-Basa was present at the hearing,
but the jury could consider by way of inference his assertion
of absence as a factor in determining whether he had been
deported. This evidence, coupled with the rejected jury
instruction, demonstrates convincingly that the jury did not
2126            UNITED STATES v. CASTILLO-BASA
“necessarily decide” whether Castillo-Basa attended his
deportation hearing.

   Third, Castillo-Basa’s attorney gave the jury additional sig-
nificant reasons to acquit based upon other alleged flaws in
the government’s case, such as no photograph or fingerprint
on the Immigration Judge’s Order of Deportation, demonstrat-
ing (1) in counsel’s words that his client “was not, in fact,
deported,” and (2) that the government has simply failed to
prove its case beyond a reasonable doubt.

   The case of United States v. Williams supports my analysis.
341 U.S. 58 (1951). In that case, the police officer defendants
had testified in a previous trial that they had not seen another
defendant, Williams, abuse a prisoner. The three were acquit-
ted of the abuse which they allegedly aided and abetted. How
could they aid and abet something they did not even see?
Then, the government charged the three with perjury on the
ground that they lied under oath about not witnessing the
abuse. The district court dismissed the perjury indictment
against the three, reasoning that “the jury’s finding that [the
three defendants] had not been guilty of the substantive
offenses in the first trial, was a determination of their inno-
cence ‘whether as principals or accessories,’ and therefore
none of the three could be found guilty of the charge made by
the perjury indictment: testifying falsely that they had not
seen or observed Williams beating the victims.” 341 U.S. at
61. The Supreme Court disagreed with both the district court
and with counsel on appeal, who argued that the issue at the
heart of the perjury trial had been “necessarily determined” by
the acquittal. The Court said,

    We do not think the facts bring any of these defen-
    dants within the protection of res judicata . . . The
    substantive former charge against appellees here was
    abuse of a prisoner by police officers under color of
    state law. An acquittal of such a crime or of aiding
    and abetting was certainly not a determination that
                UNITED STATES v. CASTILLO-BASA                2127
    [the three officers] did not see Williams assaulting
    the prisoners.

Id. at 64-65.

   Richard is to the same effect. 892 F.2d 761. Richard, a taxi
driver, was tried by a jury for transporting illegal aliens. He
offered a purported log of his trips in his defense. The govern-
ment contested the authenticity of the log, but Richard was
acquitted nonetheless. Subsequently, Richard was charged
and tried with respect to the use of the log at his trial with giv-
ing false testimony, obstructing justice, and using a false doc-
ument. Against these charges, he asserted that the jury in his
previous trial had “necessarily determined” that the log was
authentic. We disagreed, concluding that the authenticity of
the log had not necessarily been determined by his acquittal.

   I suppose that had O.J. Simpson testified in his criminal
case that he never owned the type of shoes that left bloody
footprints at the scene of the slaughter of Nicole Simpson and
Ron Goldman, he could not have been prosecuted for perjury
when dozens of photographs showed up after the trial show-
ing him wearing those shoes. The jury must have decided in
order to acquit him that he did not own the shoes, because if
they had disbelieved him, they certainly would have con-
victed — or so goes the fallacious logic and argument.

   Had Simpson testified that he could not have been the killer
because he was in Cleveland at the time of the crimes, could
he not be prosecuted for demonstrable perjury about being in
Cleveland because he had been acquitted of murder? Do the
rules of logic and fair inference dictate that the jury “actually
determined” that he was in Cleveland in order to acquit him
of murder? The jury can be fairly said to have determined that
he was not the murderer, an element of the crime, but not that
he was in Cleveland. See Lipscomb v. United States, 33 F.2d
33 (8th Cir. 1929) (An acquittal from a charge occurring in a
specified city on a specified date was not a bar to the defen-
2128            UNITED STATES v. CASTILLO-BASA
dant’s subsequent prosecution for perjury at the trial arising
from his testimony that he was in another city on the day in
question.). Castillo-Basa’s claim that he was not at the depor-
tation hearing is no different than a claim that he was some-
place else — such as Cleveland.

   Ashe v. Swenson presents a distinguishable scenario from
the circumstances in this case. 397 U.S. 436. There, the gov-
ernment tried Ashe for the same robbery of participants in a
poker game of which he had previously been acquitted, the
only difference being that the named victim in the second case
was different from the victim in the first. The Supreme Court
concluded that the jury by its verdict in the first case had
determined that he was not one of the robbers, an issue of
ultimate fact, and therefore that he could not be tried again on
the theory that yes, he was one of the robbers. Here, to repeat,
Castillo-Basa is not being charged with perjury because he
said he was not deported, but because he said he did not
attend a court hearing. Attendance at a deportation hearing is
not necessary for deportation. This variance to me is enough
degrees of separation to remove the perjury case from the
reach of collateral estoppel. Nevertheless, under the majori-
ty’s theory, both the substantive crimes and the perjury
needed somehow to have been prosecuted together, or perjury
is on the house. How do you amend an indictment during trial
and charge perjury on the basis of a defendant’s immediate
testimony? Might that be slightly heavy handed? The majori-
ty’s approach unwittingly insulates perjury from the reach of
the law. After United States v. Booker, 543 U.S. 220 (2005),
a sentencing court probably cannot enhance the sentence of a
guilty defendant for perjury during the trial for the lack of a
jury finding on the issue, and an acquitted defendant now
skates.

                              III

  Castillo-Basa argues, however, that the government would
be merely “rehashing” old evidence before a new jury if it
                UNITED STATES v. CASTILLO-BASA                2129
were allowed to proceed with the perjury trial. In Sarno, we
noted that “unless the subsequent perjury indictment is based
upon evidence which was not available at the first trial, it
would appear that the government would be merely trying to
recover from its initial failure to convince the trier of fact of
the falsity of defendant’s testimony at the first trial.” 596 F.2d
at 407 (internal citations omitted). We concluded, “Such a
rehashing of evidence previously presented would clearly be
prohibited by the collateral estoppel doctrine.” Id. Although
we subsequently dismissed as dicta this language from Sarno,
Richard, 892 F.2d at 763, we need not resolve that issue here
because the government has new material evidence that was
not presented during the first trial—the tape recording.

  Although the misplaced tape recording was in the govern-
ment’s possession during the first trial, the district court in the
current perjury trial expressly found that the tape recording
was unavailable to the government for use in the prior trial.
Specifically, the district court stated,

    [T]he government has evidence that was not avail-
    able to it at the first trial. Now, I take the argument
    that the evidence was in the government’s posses-
    sion seriously. However, the court finds that the evi-
    dence was not available to the government during
    the first trial.

As we have previously concluded, the fact that evidence was
in the government’s possession during the first trial does not
bar the government from using the evidence in a later trial for
perjury. See United States v. Dipp, 581 F.2d 1323, 1326, 1330
(9th Cir. 1978) (affirming defendant’s perjury conviction even
though the tapes used to prove perjury were in the govern-
ment’s possession during the initial trial and were requested
by the defendant). Accordingly, the government is not merely
“rehashing” evidence from the first trial because it may use
the tape recording as evidence in the perjury trial. “To con-
strue Sarno so broadly [as contended by Castillo-Basa] would
2130            UNITED STATES v. CASTILLO-BASA
create a ‘per se bar’ to subsequent perjury prosecutions.”
Richard, 892 F.2d at 763.

                               IV

   I am not moved by the Assistant United States Attorney’s
superfluous offering during oral argument before the district
court that the jury “necessarily decided” whether Castillo-
Basa was present at the deportation hearing. The district
court, not the parties, is charged with the task of examining
“the record of the prior proceeding to ascertain whether the
issue was necessarily decided in the first case.” Hernandez,
572 F.2d at 220. While the parties may aid the court in evalu-
ating the record from the prior proceeding, the parties cannot
complete this task for the court. See United States v. Ogles,
440 F.3d 1095, 1099 (9th Cir. 2006) (en banc) (“We are not
bound by a party’s concession as to the meaning of the law,
even if that party is the government and even in the context
of a criminal case.”).

                               V

    “The requirement of sworn testimony, backed by punish-
ment for perjury, is as much a protection for the accused as
it is a threat. All testimony, from third-party witnesses and the
accused, has greater value because of the witness’ oath and
the obligations or penalties attendant to it.” United States v.
Dunnigan, 507 U.S. 87, 97 (1993) abrogated on other
grounds, United States v. Wells, 519 U.S. 482 (1997). An
acquittal does not constitute an automatic bar against a subse-
quent prosecution for perjury during that trial. “[A] defen-
dant’s right to testify [in his own defense] does not include a
right to commit perjury.” Dunnigan, 507 U.S. at 96. It does
now. My colleagues’ analysis is tantamount to overruling this
basic precept. Any material lie a defendant uses to get an
acquittal whether it relates to an element of the crime or the
identity of the perpetrator, will now be immune from prosecu-
                UNITED STATES v. CASTILLO-BASA             2131
tion for perjury because after all, the jurors must have
believed it in order to acquit.

                       CONCLUSION

   I believe that the collateral issue identified in the indict-
ment Castillo-Basa now seeks to dismiss was not “necessarily
decided” because (1) his presence at the deportation hearing
was not an element of the crime charged or an issue of “ulti-
mate fact,” (2) the district court rejected a proposed instruc-
tion that would have required the jury to decide whether he
was present at the hearing, or not, (3) the district court
instructed the jury that it need not resolve the presence or
absence dispute, and (4) “a rational jury could have grounded
its verdict upon an issue other than that which the defendant
seeks to foreclose from consideration.” Ashe, 397 U.S. at 444
(quotation marks and citation omitted). The best one can say
for Castillo-Basa on the record is that the jury was not con-
vinced beyond a reasonable doubt that he had been deported,
not that they believed his lie about not attending the hearing
against a mountain of evidence to the contrary.

   Accordingly, because I conclude that collateral estoppel
does not bar the government from prosecuting Castillo-Basa
in this case, I respectfully dissent.
