United States v. Jose Cardenas

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NOT FOR PUBLICATION JAN 13 2011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.