                  FOR PUBLICATION
  UNITED STATES COURT OF APPEALS
       FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,                   No. 05-50768
                Plaintiff-Appellee,             D.C. No.
               v.                          CR-05-00734-JAH
BUENAVENTURA CASTILLO-BASA,                Southern District
             Defendant-Appellant.            of California,
                                               San Diego

                                               ORDER

                     Filed July 24, 2007

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

                            Order;
                  Dissent by Judge Callahan


                           ORDER

   An active judge sua sponte called for rehearing en banc.
The matter failed to receive a majority of the votes of the non-
recused active judges in favor of en banc consideration. Fed.
R. App. P. 35(b).

  The sua sponte call for rehearing en banc is rejected.


CALLAHAN, Circuit Judge, with whom O’SCANNLAIN,
KLEINFELD, TALLMAN, and BEA, Circuit Judges, join,
dissenting from the denial of rehearing en banc:

  I respectfully dissent from our denial of rehearing en banc
because I read the panel majority as holding, in essence, that,
                             8919
8920            UNITED STATES v. CASTILLO-BASA
if a criminal defendant lies to a jury persuasively, the govern-
ment cannot prosecute him for perjury. In my opinion, this is
contrary to Supreme Court precedent and our prior opinions.
Moreover, it allows a fundamental constitutional principle —
that a person may not be twice placed in jeopardy for the
same offense — to be used as a vehicle for protecting perjury.

                               I.

   The government indicted Castillo-Basa for being a previ-
ously deported alien found in the United States in violation of
8 U.S.C. § 1326. United States v. Castillo-Basa, 478 F.3d
890, 894 (9th Cir. 2007). Through discovery, Castillo-Basa
learned of the existence of an audio tape of his deportation
hearing, and that the government could not locate this tape.
Id.

   Castillo-Basa then moved to dismiss the indictment claim-
ing that there was no prior deportation. In support of his
motion, he filed a sworn declaration stating that “[p]rior to
May 2, 1996, I never appeared before an immigration judge”
and “prior to May 2, 1996, I was never given an immigration
hearing.” Id. The district court did not dismiss the case, and
the matter proceeded to trial, at which time the government
sought to prove that Castillo-Basa had been ordered deported
without the lost audio tape. Id. At trial Castillo-Basa testified

      that he was supposed to appear before an immigra-
      tion 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 repre-
      sentative of the INS until May, when the agent took
      him from his cell to the Mexican border.

Id.

  The majority recites that the jury was instructed, that to
prove previous deportation, the government must establish
                 UNITED STATES v. CASTILLO-BASA                8921
“(1) that a deportation occurred as to the defendant and, as a
result, (2) a warrant of deportation was issued, and (3) exe-
cuted by the removal of the defendant from the United
States.” Id. at 898 (internal punctuation modified). The
defense theory 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. Id. at 894. The dis-
trict court did not agree. It rejected Castillo-Basa’s proposed
jury instruction that the government was required to prove
that he appeared before the immigration judge. Id. at 894-95,
910. In addition, when the jury specifically asked if a defen-
dant had to be present in front of a judge, the district court
responded “no,” but that the jury could “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.” Id. at 910. The jury acquitted
Castillo-Basa of the illegal reentry offense. Id. at 895.

   After the trial, the government located the tape recording of
Castillo-Basa’s deportation hearing. The majority opinion
recounts:

      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 admit-
      ted that he had been convicted of a crime in Decem-
      ber 1985. The details provided by the responding
      individual regarding the 1985 conviction, such as the
      date of the offense and the amount of time served,
      correlate with the details of Castillo-Basa’s criminal
      history.

Id.

  On April 27, 2005, a grand jury indicted Castillo-Basa on
two counts of perjury charging him with submitting a false
8922            UNITED STATES v. CASTILLO-BASA
declaration and with falsely testifying under oath. Id. Castillo-
Basa filed a motion to dismiss the indictment on the basis of
double jeopardy and collateral estoppel. Id. The district court
denied the motion, concluding that Castillo-Basa’s “veracity
with regard to whether he had attended a deportation hearing
had not necessarily been decided in the first trial” and that
“Castillo-Basa had taken unfair advantage of the govern-
ment’s inability to locate the tape recording by giving per-
jured testimony and, in so doing, had violated public policy
and adversely affected the integrity of the judicial process.”
Id.

   Castillo-Basa appealed, and the panel majority reversed the
district court and directed the dismissal of the perjury indict-
ment. Id. at 906.

                               II.

   The panel majority’s grant of relief is based on a strained
interpretation of both the law and the facts. The Supreme
Court applied collateral estoppel to a prior judgment in a
criminal case in Ashe v. Swanson, 397 U.S. 436, 443 (1970).
In Ashe, there was a single underlying incident: six men
engaged in a poker game in the basement of a home were
robbed by three or four masked men armed with a shotgun
and pistols. Id. at 437. Ashe was tried for robbing one of the
poker players and acquitted. Id. at 439. Six weeks later he was
tried for robbing another participant in the poker game, and
convicted. Id. at 439-40. The Supreme Court set aside Ashe’s
conviction, noting:

    the record is utterly devoid of any indication that the
    first jury could rationally have found that an armed
    robbery had not occurred, or that Knight had not
    been a victim of that robbery. The single rationally
    conceivable issue in dispute before the jury was
    whether the petitioner had been one of the robbers.
    And the jury by its verdict found that he had not.
               UNITED STATES v. CASTILLO-BASA                8923
Id. at 445. In our case, the jury was instructed to determine
whether the Government had proved deportation beyond a
reasonable doubt, not whether Castillo-Basa had actually
appeared before an immigration judge.

   Nonetheless, the panel majority manipulates both the law
and the facts in an effort to apply collateral estoppel to
Castillo-Basa’s prosecution. The panel majority starts by not-
ing, that since United States v. Hernandez, 572 F.2d 218, 220
(9th Cir. 1978), we have applied Ashe 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.

However, the panel majority fails to adhere to the proper defi-
nition of the critical third prong — “whether the issue was
necessarily decided in the first action.” The Supreme Court in
Ashe explained that for this prong:

    Where a previous judgment of acquittal was based
    upon a general verdict, as is usually the case, this
    approach requires a court to examine the record of a
    prior proceeding, taking into account the pleadings,
    evidence, charge, and other relevant matter, and con-
    clude whether a rational jury could have grounded its
    verdict upon an issue other than that which the
    defendant seeks to foreclose from consideration.

397 U.S. at 444 (internal quotation omitted). In accordance
with Ashe, in Hernandez, we stressed that collateral estoppel
8924            UNITED STATES v. CASTILLO-BASA
only applies where “an issue of fact or law” is “actually liti-
gated and determined” and the “determination is essential to
the judgment.” 572 F.2d at 220. The objective application of
this standard supports the district court’s denial of Castillo-
Basa’s motion to dismiss the indictment.

   The panel majority, however, by focusing on what the
defendant wanted the jury to decide instead of what the jury
was instructed to decide, concludes that the jury in the first
trial must have decided that Castillo-Basa was telling the truth
when he testified. “The jury at Castillo-Basa’s trial necessar-
ily decided the issue of whether Castillo-Basa was afforded a
deportation hearing at which he was present. It also necessar-
ily decided that his statements were not false.” Castillo-Basa,
483 F.3d at 899. This determination is simply wrong as a mat-
ter of law and fact, and raises an improper bar against perjury
prosecutions whenever defendants testify and are acquitted at
trial.

   Although Castillo-Basa testified that he was not present at
the deportation hearing, a determination of his veracity was
not “essential to the judgment.” The trial judge rejected
Castillo-Basa’s request for a jury instruction that would have
made his presence at the deportation hearing an element of the
crime (a decision that is not questioned by the majority) and
specifically told the jury that it did not have to determine
whether Castillo-Basa had appeared before the immigration
judge. Id. at 910. Moreover, Castillo-Basa offered arguments
that a deportation hearing had not occurred, even outside his
presence, including:

    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
                UNITED STATES v. CASTILLO-BASA              8925
    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.

Castillo-Basa, 478 F.3d 907. These flaws in the government’s
case-in-chief are more than sufficient to show that Castillo-
Basa’s veracity was not “necessarily decided in the first case.”
Hernandez, 572 F.2d at 220. Indeed, a reasonable juror could
have determined that any one of these factors, or a combina-
tion of these factors, raised a reasonable doubt as to whether
a deportation had occurred. In other words, “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.

                              III.

   The majority’s revision of the criteria for the application of
a collateral estoppel bar is also contrary to the Supreme
Court’s refinement of the bar in Dowling v. United States, 493
U.S. 342 (1990). In Dowling, the Supreme Court emphasized
its language in Ashe 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 lawsuit.” Id. at 347 (quoting Ashe, 397 U.S. at 443)
(emphasis added). Although the situation in Dowling is very
different from the situation at bar, the Supreme Court’s lan-
guage is instructive. The Court wrote:

    Dowling contends that, by the same principle, his
    prior acquittal precluded the Government from intro-
8926               UNITED STATES v. CASTILLO-BASA
      ducing into evidence Henry’s testimony at the third
      trial in the bank robbery case. We disagree because,
      unlike the situation in Ashe v. Swenson, the prior
      acquittal did not determine an ultimate issue in the
      present case. This much Dowling concedes, and we
      decline to extend Ashe v. Swenson and the collateral-
      estoppel component of the Double Jeopardy Clause
      to exclude in all circumstances, as Dowling would
      have it, relevant and probative evidence that is other-
      wise admissible under the Rules of Evidence simply
      because it relates to alleged criminal conduct for
      which a defendant has been acquitted.

Id. at 348. Similarly here, Castillo-Basa’s acquittal in the first
case “did not determine an ultimate issue” raised by the
charges of perjury. The issue in the first case was whether “a
deportation proceeding occurred as to [the] defendant.”
Castillo-Basa, 478 F.3d at 898. The ultimate issue raised by
Castillo-Basa’s subsequent indictment is whether he lied
when he testified that he did not physically appear before an
immigration judge. Since the jury in the first trial was specifi-
cally instructed that the government did not have to prove
Castillo-Basa’s presence at the deportation hearing, see id. at
910, Castillo-Basa’s testimony that he was not present did not
concern an “ultimate issue.”

                                   IV.

   Finally, my dissent is prompted by concerns with the prac-
tical consequences of the panel majority’s decision. Our sys-
tem relies heavily on individuals telling the truth under oath.1
Nonetheless, where a defendant secures an acquittal by lying
  1
    See United States v. Mandujano, 425 U.S. 564, 576 (1976) (“In this
constitutional process of securing a witness’ testimony, perjury simply has
no place whatever. Perjured testimony is an obvious and flagrant affront
to the basic concepts of judicial proceedings. Effective restraints against
this type of egregious offense are therefore imperative.”)
                   UNITED STATES v. CASTILLO-BASA                     8927
about an element of a crime, the Double Jeopardy Clause bars
the government from seeking to retry the defendant for the
first offense or prosecuting the defendant for perjury.2 But the
majority’s approach expands this perjury exemption, thus
undermining one of the critical means for ensuring truthful
testimony. If a defendant cannot be tried for perjury, what
motive does he have to tell the truth? If he lies and is con-
victed, he has risked little, but if he lies and gains an acquittal,
according to the panel majority, as long as the lie is relevant
to an underlying issue, he could not be charged with perjury.
The panel majority’s attempt to uncouple the collateral estop-
pel bar from the ultimate issues in the cases is no mere techni-
cality as a defendant has little motivation to lie unless he or
she thinks that the lie is somehow related to the pending
charges. Collateral estoppel should only bar prosecution for
perjury that addressed the ultimate issue in the first trial.

   Despite the panel majority’s assertion to the contrary, I fear
its opinion will be read as creating “a per se bar against per-
jury prosecutions involving defendants who testify and are
acquitted at trial.” Castillo-Basa, 478 F.3d at 905. The opin-
ion states:

      When an acquitting jury has not necessarily or actu-
      ally decided the question of a defendant’s veracity,
      or a material issue sufficiently similar to one the
      prosecution must establish in the prospective second
      proceeding, collateral estoppel does not bar a subse-
      quent trial for perjury.

Id. Although this sentence starts with the implication that a
jury must “necessarily” have decided the issue, its clauses are
connected with the word “or.” Accordingly, the sentence may
  2
    I agree with Judge Trott’s statement in his dissent “that if the perjury
charge were based on [Castillo-Basa’s] testimony to the effect that he was
‘not deported,’ collateral estoppel might apply.” Castillo-Basa, 478 F.3d
at 909.
8928            UNITED STATES v. CASTILLO-BASA
be read as providing that, if the first jury decided “a material
issue sufficiently similar to one the prosecution must establish
in the prospective second proceeding,” collateral estoppel bars
prosecution for perjury. But a new standard for collateral
estoppel based on “a material issue sufficiently similar,”
would conflict with the Supreme Court’s position in Ashe and
Dowling and our reiteration in Hernandez that collateral
estoppel only applies when “the issue was necessarily decided
in the first case.” 572 F.2d at 220. In light of the panel majori-
ty’s strained interpretation of the facts, a reasonable reader
may well conclude that the panel majority created a new stan-
dard. I would not create such a standard nor impose the inter-
pretation of the panel majority’s opinion on the district courts.

   Following the Supreme Court’s opinion in Ashe, 397 U.S.
436, we held that, for collateral estoppel to bar a subsequent
prosecution for perjury in a criminal action, the defendant had
to show that the issue that was the subject of the perjury “was
necessarily decided in the first case.” Hernandez, 572 F.2d at
220. For over a quarter of a century, we have adhered to this
standard. We should have taken this case en banc to correct
the panel majority’s expansion of this standard and manipula-
tion of the facts, and to re-emphasize that the collateral estop-
pel bar only applies — as the Supreme Court has stated —
when a rational jury could not “have grounded its verdict
upon an issue other than that which the defendant seeks to
foreclose from consideration.” Ashe, 397 U.S. at 444.
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