                                                                            FILED
                            NOT FOR PUBLICATION                              JAN 13 2011

                                                                         MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                       U.S . CO U RT OF AP PE A LS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                         No. 09-50472

              Plaintiff - Appellee,               D.C. No. 3:07-cr-02231-JAH-1

  v.
                                                  MEMORANDUM *
JOSE LUIS CARDENAS,

              Defendant - Appellant.



                    Appeal from the United States District Court
                       for the Southern District of California
                     John A. Houston, District Judge, Presiding

                       Argued and Submitted August 5, 2010
                               Pasadena, California

Before: KOZINSKI, Chief Judge, REINHARDT and WARDLAW, Circuit Judges.




       Jose Luis Cardenas appeals his convictions for illegal reentry, in violation of

8 U.S.C. y 1326, and identity theft, in violation of 18 U.S.C. y 1028A. We have

jurisdiction pursuant to 28 U.S.C. y 1291. We REVERSE both convictions.



        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                                           I.

      Cardenas was first tried on the illegal reentry charge in January 2008. The

jury deadlocµed and the district court declared a mistrial. Prior to retrial on the

illegal reentry charge, the government returned a second superseding indictment,

which added an identity theft charge. The illegal reentry and identity theft charges

against Cardenas were severed. Cardenas contends that, prior to his second illegal

reentry trial, the district court made an evidentiary ruling that 'barr[ed him] from . .

. challenging an element of th[at] crime,' and was thus structural error. United

States v. Smith-Baltiher, 424 F.3d 913, 921-22 (9th Cir. 2005). We agree.

      Alienage is an element of the offense of illegal reentry. See id.; see also 8

U.S.C. y 1326. The government's evidence of alienage consisted of the fact that

Cardenas had been previously removed and that, in a removal proceeding, he had

stated that he was a Mexican citizen. The fact of a prior removal is insufficient to

establish alienage. See United States v. Meza-Soria, 935 F.2d 166, 170 (9th Cir.

1991). The government's case therefore rested on Cardenas's statement.

      Cardenas sought to introduce evidence to cast doubt on the reliability and

materiality of his statement of Mexican citizenship. The evidence would have

shown that he had been removed under the name Alfonso Pioquinto but that he was

not, in fact, Alfonso Pioquinto. At his first trial, there was testimony to the effect


                                     Page 2 of 10
that Cardenas had generally used that name, which belonged to a Mexican citizen,

in order to obtain worµ, as he was underage. This calls into question the

materiality of his statement during his removal proceeding: that he, Alfonso

Pioquinto, was a Mexican citizen. With such evidence before the jury at his first

trial, the jury hung and was ultimately discharged. Without evidence at the second

trial regarding Cardenas's use of the name Pioquinto and that the statement at the

removal hearing was made in his role as Pioquinto, Cardenas was precluded from

'challenging an element of the crime.' Smith-Baltiher, 424 F.3d at 921-22. At the

request of the government, however, the district court precluded Cardenas from

introducing any evidence regarding his use of the name Pioquinto or any evidence

that he was removed under that name.

      'Having notified the court of his intent to introduce evidence challenging an

element of the crime, [Cardenas] was entitled to present probative evidence to that

effect. Denial of the opportunity to present his defense was, without more,

sufficient to warrant reversal.'1 Smith-Baltiher, 424 F.3d at 922. Accordingly, we

reverse.



      1
        We reject the government's argument that Cardenas waived any challenge
to the district court's evidentiary ruling when he agreed to be tried to the court on
stipulated facts. Cardenas agreed to be tried by the court on stipulated facts only
after the court made a definitive ruling excluding the evidence he sought to present.

                                    Page 3 of 10
                                          II.

      Cardenas challenges his identity theft conviction on the ground that the

offense proved at trial was different than the offense charged in the indictment.

We agree that there was a divergence between the offense charged and the offense

proved, and we hold that the divergence requires reversal for two reasons: (1) it

constituted a fatal variance of the indictment in violation of United States v.

Adamson, 291 F.3d 606, 615-16 (9th Cir. 2002), and (2) it allowed the jury to

convict on the basis of a legally inadequate theory in violation of United States v.

Barona, 56 F.3d 1087 (9th Cir. 1995).




                                          A.

      A fatal variance 'occurs when the charging terms of the indictment are left

unaltered, but the evidence offered at trial proves facts materially different from

those alleged in the indictment.' United States v. Von Stoll, 726 F.2d 584, 586 (9th

Cir. 1984).

      The indictment charged Cardenas with possessing and using without lawful

authority 'a means of identification of another person, to wit: the name and date of

birth of Carlos Jesus Martinez.' Prior to trial, Cardenas filed a motion challenging

the indictment for vagueness and requesting a bill of particulars. At a hearing on


                                     Page 4 of 10
the motion, the government represented to the court and counsel that the charge

was that Cardenas had committed identity theft by stating to a Border Patrol

Officer that his name was 'Carlos Jesus Martinez' and giving the birth date of a

real individual named Carlos Jesus Martinez. It then confirmed that the act

charged in the indictment was the giving to the officer on July 17, 2007 the name

Carlos Jesus Martinez, and that such was the scope of the charge.

      Cardenas's defense at trial was that he had not told the Border Patrol Officer

that his name was Carlos Jesus Martinez. Rather, he had told him that he was

Carlos Martinez-Casqueda.

      At trial, the Border Patrol Officer offered two directly conflicting sworn

statements regarding the name that Cardenas had given him. He first testified that

Cardenas had given him the name 'Carlos Martinez' and that his present

recollection was that Cardenas had given him that name. He acµnowledged,

however, that in his contemporaneous report of the incident, he had written that

Cardenas had told him that his name was 'Carlos Martinez-Casqueda.'

Subsequently, he testified that the name he was given was Carlos Martinez-

Casqueda, and that such was his present recollection as well. He also confirmed

that his contemporaneous report accurately reflected the name that Cardenas had

given him, which was Carlos-Martinez-Casqueda. The Officer offered no


                                   Page 5 of 10
explanation as to why he first testified that his present recollection contradicted

what he wrote in his contemporaneous report, or why he subsequently testified that

he now had precisely the opposite present recollection.

      During closing argument, the prosecutor told the jurors that they should

convict if they found that Cardenas had used either the name Carlos Martinez or

the name Carlos Martinez-Casqueda. The jury instructions allowed the jury to

convict on either basis, notwithstanding the prosecutor's representation to the court

and defense counsel that the act charged in the indictment was specifically the use

of the name Carlos Jesus Martinez.

      We hold that the discrepancy between the conduct charged in the indictment,

as specified at the pre-trial hearing, and the conduct for which the jury was

permitted to convict constituted a fatal variance in the indictment and requires

reversal. Our conclusion is dictated by Adamson, in which the indictment charged

the defendant with committing wire fraud by misrepresenting the fact that

computer servers had been upgraded. At a pre-trial hearing, the government

asserted that the only misrepresentation at issue was the one alleged in the

indictment: the defendant had misrepresented the fact that servers had been

upgraded. Adamson, 291 F.3d at 616. The evidence introduced at trial showed,

however, that the defendant had misrepresented the way in which the servers had


                                     Page 6 of 10
been upgraded, and the jury was permitted to convict on the basis of that

misrepresentation. We held that the divergence between the misrepresentation

alleged in the indictment and the misrepresentation proved at trial constituted a

variance in the indictment. Id.

      We do not believe that the divergence in this case between the conduct

charged in the indictment, as represented by the government in a pre-trial hearing,

and the conduct for which the jury was permitted to convict is materially

distinguishable from the divergence at issue in Adamson, other than that it is

clearer and more willful. Both divergences consisted of differences between the

misrepresentation charged and the misrepresentation proved. Accordingly, we

hold that the divergence in this case constituted a variance of the indictment.

      A variance is subject to harmless error analysis. Id. at 615. On the question

of harmlessness we also conclude that the facts of Adamson are materially

indistinguishable from the facts of this case. In Adamson, the variance had

prevented the indictment from serving its 'primary purpose . . . to inform a

defendant of 'what he is accused of doing in violation of the criminal law so that he

can prepare his defense,' and had instead affirmatively misled the defendant about

the conduct charged. Id. at 616. As a result, the defendant had been 'induced . . .




                                    Page 7 of 10
to prepare a defense that would be insufficient to ward off the government's proof

at trial.' Id. For those reasons, we held that the variance was not harmless.

      In this case, Cardenas relied on the indictment and the government's pre-

trial representations that 'what he [wa]s accused of doing in violation of the

criminal law,' id. (quoting U.S. v. Tsinhnahijinnie, 112 F.3d 988 (9th Cir. 1997)),

was uttering the name Carlos Jesus Martinez to the officer on July 17. He thus

based his defense around his testimony that he had instead provided the name

Carlos Martinez-Casqueda. This defense was 'insufficient to ward off the

government's proof at trial.' Id. Accordingly, we hold that the variance

constitutes reversible error.




                                         B.

      The variance also requires reversal for another reason. To sustain the

identity theft charge against Cardenas, the government was required to prove that

he µnew that the name and date of birth that he had used were a means of

identification of a real person. See Flores-Figueroa v. United States, 129 S.Ct.

1886 (2009). To do so, it introduced the testimony of an individual named Carlos

Jesus Martinez who had the same birth date that Cardenas had given the Border

Patrol Officer. On cross-examination, Martinez explained that, according to the


                                    Page 8 of 10
naming conventions used in Mexican culture, the name Carlos Martinez-Casqueda

denotes an individual whose father's last name is Martinez, and whose mother's

last name is Casqueda. Id. Martinez testified that his mother's last name is Cruz,

not Casqueda, that he is not Martinez-Casqueda, and that he has never gone by the

name Martinez-Casqueda. Id.

      The government introduced no evidence that there exists a real person

named Carlos Martinez-Casqueda who has the date of birth that Cardenas provided

to the Border Patrol Officer. The government's theory that the jury could convict

Cardenas of identity theft based on a finding that he had impersonated someone

named Carlos Martinez-Casqueda was thus 'legally inadequate,' Barona, 56 F.3d

at 1098, because an identity theft conviction cannot be sustained unless the

defendant µnew that the means of identification used belonged to a real person.

Flores-Figueroa, 129 S.Ct. 1886. 'When the jury is presented with a legally

inadequate theory . . . the conviction [must] be vacated and the case retried as to

that charge.' Barona, 56 F.3d at 1098.




                                          III.

      We do not reach Cardenas's prosecutorial misconduct claim, or his claim

that the district court erred in denying his motion to suppress the fruits of his


                                     Page 9 of 10
encounter with the Border Patrol Officer. We VACATE his illegal re-entry and

identity theft convictions, and REMAND for a new trial.




                                 Page 10 of 10
                                                                               FILED
United States v. Cardenas, No. 09-50472                                         JAN 13 2011

                                                                            MOLLY C. DWYER, CLERK
                                                                             U.S . CO U RT OF AP PE A LS

Chief Judge KOZINSKI, dissenting:

       The majority is wrong, wrong and wrong again. Cardenas's convictions are

solid as a rocµ.

       First, the district court's evidentiary rulings didn't deprive Cardenas of his

right to present a defense. Contra maj. op. at 3. At his first trial, Cardenas claimed

to be 'Carlos Martinez.' See, e.g., United States v. Martinez, No. 07-cr-2231 (S.D.

Cal. Jan. 17, 2008) (docµet entry 34). He introduced testimony from a family

friend who said that she had µnown 'Mr. Martinez' for 15 years. This friend

testified about 'Mr. Martinez's' age, U.S. citizenship and reasons for assuming

Alfonso Pioquinto's identity. After his first trial, the government discovered that

'Carlos Martinez' was actually a U.S. citizen whose identity Cardenas had stolen

in 1993 and used ever since. It also discovered that Cardenas was Cardenas, so, at

his second trial, he had to proceed under his real name. See, e.g., United States v.

Cardenas, No. 07-cv-2231 (S.D. Cal. Sept. 22, 2009) (docµet entry 117).

       Since Cardenas could no longer pretend to be Carlos Martinez, the testimony

about 'Mr. Martinez' that he presented at his first trial retained little, if any,

probative value. What good would it do Cardenas to have a witness testify about

µnowing Martinezá The district court's exclusion of such evidence from the
                                                                                   page 2

second trial wasn't error at all, much less constitutional error. See United States v.

Smith-Baltiher, 424 F.3d 913, 922 (9th Cir. 2005) ('[T]he defendant was entitled

to present probative evidence . . . .' (emphasis added)); United States v. Cruz-

Escoto, 476 F.3d 1081, 1088 (9th Cir. 2007) ('In considering whether the

exclusion of evidence violates due process, this court considers [its] probative

value . . . .' (internal quotation marµ omitted)). Although Cardenas has a

constitutional right to present a defense, that right is subject to reasonable limits.

See Fed. R. Evid. 403; Menendez v. Terhune, 422 F.3d 1012, 1033 (9th Cir. 2005).

Smith-Baltiher doesn't suspend these limits. See, e.g., United States v. Flores-

Villar, 536 F.3d 990, 999 (9th Cir. 2008). Precluding the introduction of evidence

that had been made irrelevant by changed circumstances did not deny Cardenas a

fair trial.

        Second, Cardenas's identity theft conviction is legally sufficient. Contra

maj. op. at 8-9. It's undisputed that Cardenas gave a name and a date of birth to

the Border Patrol agent. It's also not in dispute that a record checµ on that

information returned a hit for Carlos Martinez, the real-life victim of Cardenas's

identity theft. And Cardenas had an original of Carlos Martinez's birth certificate,

proving that he µnew Martinez was a real person. See United States v. Maciel-

Alcala, 612 F.3d 1092, 1094, 1102 (9th Cir. 2010). Thus, the name Cardenas
                                                                                  page 3

gave--whether it was 'Carlos Martinez-Casqueda' or 'Carlos Martinez'--met the

statutory definition of a 'means of identification of another person,' i.e., of the real

Carlos Martinez. See 18 U.S.C. y 1028A(a)(1); id. y 1028(d)(7)(A); see also

Flores-Figueroa v. United States, 129 S. Ct. 1886, 1893-94 (2009).

       Third, the majority tells only half the story when it holds that the

prosecutor's representations at the bill of particulars hearing created a fatal

variance from the identity theft indictment. See maj. op. at 6-8. Defense counsel

asµed 'if the government is representing to me and to the court that the charges are

that on July 17th, 2007, the defendant gave the name [Carlos Martinez and

Martinez's] date of birth.' The prosecutor answered that defense counsel had 'just

recited' the 'scope of the charges' accurately. According to the majority, this

'confirmed that the act charged in the indictment was the giving . . . [of] the name

Carlos Jesus Martinez.' Maj. op. at 5. But the prosecutor immediately added that

'there is a lot of evidence the government will put into a trial . . . . [T]he

government has put out in discovery . . . everything [Cardenas]'s ever done with

any names.' The prosecutor's full statement (not the truncated version the

majority cites) put Cardenas on notice that the case against him could involve other

names--for example, 'Carlos Martinez-Casqueda.' There was no variance

between the prosecutor's statements at the hearing and her argument at trial that
                                                                                page 4

the jury could convict Cardenas of using the name 'Carlos Martinez' or 'Carlos

Martinez-Casqueda.' Cf. United States v. Adamson, 291 F.3d 606, 610 n.2, 616

(9th Cir. 2002) (fatal variance in fraud case where government introduced evidence

of a type of misrepresentation different from the one discussed at a pretrial hearing,

and where the prosecutor had said at the hearing that no other types of

misrepresentations were at issue).

      Because there's no merit to Cardenas's claims that the encounter with the

Border Patrol agent wasn't consensual, see United States v. Washington, 490 F.3d

765, 771-72 (9th Cir. 2007), or that the prosecutor committed misconduct in her

closing argument, see United States v. Reyes, 577 F.3d 1069, 1077 (9th Cir. 2009),

I see this as an easy affirm.
