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United States v. Barragan-Cepeda

filed: July 12, 1994.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
JOSE BARRAGAN-CEPEDA, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR-93-489-EBG. Earl B. Gilliam, District Judge, Presiding.

Before: Betty B. Fletcher, William C. Canby, Jr., and Cynthia Holcomb Hall, Circuit Judges. Opinion by Judge Canby.

Author: Canby

CANBY, CIRCUIT JUDGE:

Jose Barragan-Cepeda was charged as a deported alien who reentered the United States in violation of 8 U.S.C. § 1326. Following the district court's denial of his motion to dismiss on the ground of double jeopardy, Barragan brings an interlocutory appeal. We reverse.

I. BACKGROUND

In April of 1993, the government indicted Barragan alleging that he was an alien who reentered the United States after deportation in violation of 8 U.S.C. § 1326. Barragan moved to dismiss the indictment because it subjected him to double jeopardy. The basis of his motion was as follows: In 1980, Barragan was indicted, tried and acquitted of a violation of § 1326 and two other offenses. Each of the 1980 offenses required the government to establish that Barragan was an alien. The 1980 acquittals, he alleges, were based on the fact that the jury found him to be an American citizen. Although the present charge is based on his April 9, 1993 reentry into the United States, Barragan argues that the government is barred from relitigating a key element, i.e., his alienage.

As proof that his alienage was litigated and decided in the 1980 proceeding, Barragan introduced affidavits from two people who served as jurors in the 1980 trial. The district court ruled that the introduction of these affidavits was improper under Fed. R. Evid. 606(b) and apparently declined to consider them. Barragan also introduced an affidavit from his 1980 defense counsel and a stipulation that was filed prior to trial in the 1980 proceeding.

The district court denied Barragan's motion, ruling that Barragan had failed to establish that his alienage was necessarily decided in the 1980 proceeding. Barragan now appeals both the Conclusion that the juror affidavits were inadmissible and the finding that he failed to prove that the alienage issue was necessarily decided.

II. JUROR AFFIDAVITS

As a preliminary matter, we must decide whether the affidavits by jurors in the 1980 proceeding may properly be considered in the collateral estoppel inquiry. The district court ruled, and the government argues, that Rule 606(b) bars the admission of the juror affidavits to determine whether collateral estoppel applies in this case.

The full text of Rule 606(b) is as follows:

Upon an inquiry into the validity of a verdict or indictment, a juror may not testify as to any matter or statement occurring during the course of the jury's deliberations or to the effect of anything upon that or any other juror's mind or emotions as influencing the juror to assent or Dissent from the verdict or indictment or concerning the juror's mental processes in connection therewith, except that a juror may testify on the question whether extraneous prejudicial information was improperly brought to the jury's attention or whether any outside influence was improperly brought to bear upon any juror. Nor may a juror's affidavit or evidence of any statement by the juror concerning a matter about which the juror would be precluded from testifying be received for these purposes.

(Emphasis added). The opening clause of this rule is clear. Rule 606(b) bars the admission of juror testimony only upon an inquiry into "the validity of a verdict." It does not limit the admissibility of juror affidavits to determine what issues were decided in a prior proceeding. By proffering jury affidavits regarding the 1980 verdict, Barragan has not sought to impeach that verdict. Quite the contrary, he is attempting to rely upon that ...


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