## F I L E D United States Court of Appeals Tenth Circuit 

### JUL 28 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

UNITED STATES OF AMERICA, Plaintiff-Appellee and Cross-Appellant,

v. MANUEL GALLARDO-MENDEZ, a/k/a Luis Lizarraga, a/k/a Oscar Berdeja, Defendant-Appellant and Cross-Appellee. Nos. 97-4062 & 97-4072

Appeal from the United States District Court

for the District of Utah (D.C. No. 96-CR-176)
Mark K. Vincent (Scott M. Matheson, Jr., United States Attorney, with him on the briefs), Assistant United States Attorney, Salt Lak e City, Utah, for PlaintiffAppellee and Cross-Appellant. Robert Breeze, Salt Lake City, Utah, for Defendant- Appellant and CrossAppellee.

Before BRORBY, McKAY and BRISCOE , Circuit Judges.

BRORBY , Circuit Judge.1 The Appellant and Cross-Appellee appears to have used a variety of

names and aliases. We will refer to him throughoutthis opinion as Mr. GallardoMendez.

-2- Manuel Gallardo-Mendez 1 appeals his conviction for violating 8 U.S.C. § 1326, reentry into the United States by a deporte d alien. Mr. Gallardo-Mendez alleges the district court violated his Sixth Amend ment rights by invoking the doctrine of collateral estoppel against him on the issue of alienage. He also challenges the sufficiency of the evidence to suppo rt a conviction. The government challenges the sentencing court's decisi on to grant Mr. GallardoMendez a two-level downward adjustment under UnitedStates Sentencing Guidelines § 3E1.1 for acceptance of responsibility . We have jurisdiction pursuant to 28 U.S.C. § 1291. We reverse the judgm ent of conviction and remand for further proceedings.

I Prior to his indictment in this case, he had been d eported on three occasions. Mr. Gallardo-Mendez was first deported in December 1987, following his completion of a state sentence for theft by rec eiving. In September 1988, Mr. Gallardo-Mendez was deported for the second time.-3-

In April 1991, Mr. Gallardo-Mendez was arrested forillegally reentering the United States. Subsequently, he was indicted f or violating 8 U.S.C. § 1326, reentry by a deported alien, and three counts of fa lsely claiming to be a United States citizen in violation of 18 U.S.C. § 911. Mr . Gallardo-Mendez pled guilty to the illegal reentry charge. Following completio n of his federal sentence in February 1992, Mr. Gallardo-Mendez was deported forthe third time.

In September 1995, Mr. Gallardo-Mendez was convicte d on state charges and sentenced to a term in the Utah state prison. An Immigration and Naturalization Service detainer was filed, and in A ugust 1996, Mr. GallardoMendez was indicted on the federal charge of illega l reentry of a deported alien in violation of 8 U.S.C. § 1326, the case from which these cross-appeals arise. Mr. Gallardo-Mendez filed a motion for a pretrial deter mination that he was entitled to contest the issue of alienage at trial. The gov ernment countered with a motion in limine requesting that Mr. Gallardo-Mendez be co llaterally estopped from contesting his alienage prior to his 1991 federal c onviction for illegal reentry of a deported alien. The government contended Mr. Gallardo-Mendez’ guilty plea in 1991 provided an adequate basis for application of the collateral estoppel doctrine on the issue of alienage.2The jury was given the following instruction on the elements of the

crime: In order to sustain its burden of proof for the cri me of unlawful reentry of a deported alien, as charged in the Indictment, the government must prove the following four elements beyond a reasonable doubt: FIRST, that at the time alleged in the Indictment, the defendant was an alien, that is, that the defendant was not a nat ional or a citizen of the United States; SECOND, that the defendant was arrested and deporte d from the United States on or about February 7, 1992; THIRD, that, thereafter, the defendant willfully, k nowingly, and voluntarily was present in the United States and, o n or about May 19, 1995, he was found in Utah County, Utah; FOURTH, that the defendant failed to obtain the exp ress permission of the Attorney General to reapply for admission into the United States before he was found in the United States.

-4- After a hearing, the district court invoked the doc trine of collateral estoppel against Mr. Gallardo-Mendez, and estopped him from contesting his alienage prior to his 1991 conviction for illegal reentry of a deported alien. The district court also prohibited Mr. Gallardo-Mendez from coll aterally attacking his 1991 criminal conviction at his upcoming trial.

At Mr. Gallardo-Mendez’ jury trial, alienage was anessential element of the crime charged, unlawful reentry of a deported alien. 2 See 8 U.S.C. § 1326.-5-

Consistent with its collateral estoppel order, the district court instructed the jury on the issue of alienage as follows:

There has been a judicial determination in litigati on, to which the defendant was a party, that on and prior to Jul y 26, 1991, defendant was an alien and not a citizen of the Uni ted States. The defendant is bound by that determination. The jury convicted Mr. Gallardo-Mendez. The distri ct court sentenced Mr. Gallardo-Mendez to a term of ninety-six months impr isonment. These crossappeals followed.

II We review the district court's application of the c ollateral estoppel doctrine, a question of law, de novo

. United States v. Rogers , 960 F.2d 1501, 1507 (10th Cir.), cert. denied , 506 U.S. 1035 (1992). The federal doctrine of co llateral estoppel stands for the principle that “when an iss ue of ultimate fact has once been determined by a valid and final judgment, thatissue cannot again be litigated between the same parties in any future lawsuit.” Ashe v. Swenson , 397 U.S. 436, 443 (1970). While first developed and more commonl y applied in the civil arena, the doctrine of collateral estoppel has been an “es tablished rule of federal criminal law” at least since United States v. Oppenheimer , 242 U.S. 85 (1916). Ashe , 397 U.S. at 443-44 (discussing history of collate ral estoppel doctrine in criminal arena). In Ashe , the Court held that a criminal defendant's well f ounded3 There is a clear split among our sister circuits that have ruled on the

question of whether the government may use the doctrine of collateral estoppel to preclude a criminal defendant from raising an issue adjudicated in a prior criminal proceeding. Compare United States v. Pelullo , 14 F.3d 881, 896 (3rd Cir. 1994) (rejecting application of collateral estoppel again st a defendant in successive criminal proceedings), and United States v. Harnage , 976 F.2d 633, 636 (11th Cir. 1992) (same) with Pena-Cabanillas v. United States , 394 F.2d 785, 787-88 (9th Cir. 1968) (approving application of collatera l estoppel against a defendant in successive criminal proceedings), and Hernandez-Uribe v. United States , 515 F.2d 20, 22 (8th Cir. 1975) (same), cert. denied, 423 U.S. 1057 (1976). See generally United States v. Day , 591 F.2d 861, 892 n.23 (D.C. Cir. 1978) (Robinson, J., dissenting in part) (alluding to col lateral estoppel issue not actually presented to the court for decision); United States v. Ping , 555 F.2d 1069, 1076 (2d Cir. 1977) (discussing but not reaching "diffic ult issue" of whether collateral estoppel can be invoked by government in criminal c ase).

-6- assertion of collateral estoppel based on a previou s judgment of acquittal “is embodied in the Fifth Amendment guarantee against double jeopardy.” Id . at 445. The United States Supreme Court, however, has not a ddressed directly the question of whether collateral estoppel can be applied against the defendant in a criminal case. But see id . at 464-65 (Burger, C.J., dissenting) (positing “c ourts that have applied the collateral-estoppel concept t o criminal actions would certainly not apply it to both parties, as is true in civil cases”); Simpson v. Florida , 403 U.S. 384, 386 (1971) (noting that “‘mutuality ’ was not an ingredient of the collateral estoppel rule imposed by the Fift h and Fourteenth Amendments upon the States”) (quoting Ashe , 397 U.S. at 443). Nor has this court. 34The Third Circuit provided a thorough and closelyreasoned analysis of

the use of collateral estoppel against a criminal d efendant in Pelullo , a case where the government sought to use the defendant's prior conviction by jury for wire fraud as collateral estoppel to establish a predicate offense in a trial before a second jury for violation of the Racketeer Influenc ed and Corrupt Organization (RICO) Act. Pelullo , 14 F.3d at 889. The Pelullo court first rejected explicitly the “public policy and judicial efficiency” rationa le for collateral estoppel advanced by the Ninth Circuit in Pena-Cabanillas , 394 F.2d at 786-88, concluding that “the liberty interest of a criminal defendant takes priority over the usual concerns for efficient judicial administratio n so often found in civil proceedings.” Pelullo , 14 F.3d at 892-94. The Pelullo court then engaged in a detailed analysis of the Sixth and Seventh Amendments to the United States Constitution, concluding that “the right to a jury trial in every criminal prosecution is absolute.” Id. at 894-96. Ultimately, the court held “the constitutional mandate of the Sixth Amendment for ajury trial in every criminal prosecution ... necessitates that every jury empane led for a prosecution considers evidence of guilt afresh and without the judicial d irection attending collateral estoppel.” Id. at 896 (citing State v. Ingenito , 432 A.2d 912, 915-19 (N.J. 1981)).

-7- Mr. Gallardo-Mendez urges this court to adopt the p osition assumed by the Third Circuit in United States v. Pelullo , 14 F.3d 881, 889-97 (3d Cir. 1994), and reject generally the use of collateral estoppel aga inst a criminal defendant as intrusive on the Sixth Amendment right to a jury trial. 4 However, the facts of this case require us to answer only the narrower questio n of whether the government may use a judgment in a criminal case following a p lea of guilty to collaterally estop a defendant from relitigating an issue in a s ubsequent criminal proceeding.

In a case factually parallel to the case at bar, th e Eighth Circuit held that a defendant could be collaterally estopped from conte sting alienage based on a prior-8-

plea of guilty to the charge of illegal reentry by an alien in a successive criminal proceeding on the same charge. Hernandez-Uribe v. United States , 515 F.2d 20, 21-22 (8th Cir. 1975), cert. denied , 423 U.S. 1057 (1976); see also United States v. Bejar-Matrecios , 618 F.2d 81, 83-84 (9th Cir. 1980) (reversing con viction on other grounds, but citing Hernandez-Uribe with approval). The Court of Appeals for the Eighth Circuit rested its holding in Hernandez-Uribe on three discernible bases.

First, the Eighth Circuit embraced the reasoning of the Ninth Circuit in Pena-Cabanillas v. United States , 394 F.2d 785 (9th Cir. 1968), where collateral estoppel was invoked against a criminal defendant o n the issue of alienage based on an earlier conviction. Hernandez-Uribe , 515 F.2d at 22 (“We find such reasoning [ Pena-Cabanillas ] to be persuasive.”) The Ninth Circuit had itself adopted the reasoning of United States v. Rangel-Perez , 179 F. Supp. 619 (S.D. Cal. 1959), yet another case focusing on the issue of alienage. Pena-Cabanillas , 394 F.2d at 787-88. The Ninth Circuit joined in th e district court's conclusion that “wise public policy and common sense judicial administration combine to advocate the application of the [collateral estoppe l] doctrine against a defendant in criminal cases as to those issues which have in fact been litigated and adjudicated in a prior criminal case between the sa me prosecutor and the same5 The “wise public policy and common sense judicial administration” relied

on by the Ninth Circuit was the need to deter and c ontrol the problem of alien illegal entry into the United States. The court re asoned that the prospect of a trial de novo on the issue of alienage would encourage defendant s to repeatedly attempt reentry in the hope of attaining a favorabl e jury verdict. PenaCabanillas , 394 F.2d at 787-88 (adopting the reasoning of Rangel-Perez , 179 F. Supp. at 626); accord Hernandez-Uribe , 515 F.2d at 21-22.

-9- defendant.” 5 Id . at 787 (citing Rangel-Perez , 179 F. Supp. at 625); accord Hernandez-Uribe , 515 F.2d at 21-22.

We are not convinced according preclusive effect to guilty pleas would, in fact, serve the interests of “wise public policy an d common sense judicial administration.” The prospect of being collaterall y estopped at some future date may discourage criminal defendants from settling cr iminal charges by pleading guilty. See Note, Precluding the Accused: Offensive Collatera l Estoppel in Criminal Cases, 80 Va. L. Rev. 1379, 1421-22 (1994) (arguing “plea bargain pricing” would be made less certain, hence, less attractive, to defendants if pleas are accorded preclusive effect). The judicial burd ens of ensuring guilty pleas are entered “knowingly,” given the prospect of potenti al complex collateral estoppel applications, arguably would be enhanced. See Fed. R. Crim. P. 11; see also McCarthy v. United States , 394 U.S. 459 (1969) (explicating Fed. R. Crim. P. 11 requirements). Additionally, the process of determ ining whether or not collateral-10-

estoppel is appropriate in a subsequent criminal pr oceeding can itself be cumbersome. See United States v. Harnage , 976 F.2d 633, 634-36 (11th Cir. 1992) (rejecting the use of collateral estoppel aga inst criminal defendants on the grounds of judicial economy); see, e.g., United States v. Colacurcio , 514 F.2d 1, 6-7 (9th Cir. 1975) (rejecting application of collateral estoppel against a criminal defendant where precise monetary amounts were not “ distinctly put in issue and directly determined” in prior proceeding (citation omitted)).

Moreover, while “wise public policy and judicial ef ficiency” may be sufficient reasons to apply collateral estoppel in civil cases, they do not have the same weight and value in criminal cases. See Ashe , 397 U.S. at 464 (Burger, C.J., dissenting) (recognizing that “in criminal cases, f inality and conservation of private, public and judicial resources are lesser v alues than in civil litigation”). In a criminal prosecution, the defendant has at sta ke an “‘interest of transcending value,’” his liberty. In re Winship , 397 U.S. 358, 364 (1970) (quoting Speiser v. Randall , 357 U.S. 513, 525-26 (1958)). As the Court of Ap peals for the Third Circuit has well illustrated, this interest of the accused to vindicate himself in a criminal case has been held to trump a variety of “ public interest concerns ... of the highest magnitude.” Pelullo , 14 F.3d at 893 (citing United States v. Nixon , 418 U.S. 683, 703-16 (3d Cir. 1974) (executive privilege); Davis v. Alaska , 415-11-

U.S. 308, 318-321 (1974) (anonymity of juvenile offenders); United States v. Lindstrom , 698 F.2d 1154, 1166-67 (11th Cir. 1983) (confidentiality of medical records)). We note also that the Supreme Court didnot make the doctrine of collateral estoppel available to criminal defendant s as a matter of judicial efficiency; the Court found a constitutional mandat e for use of the doctrine by the defendant in the Fifth Amendment guarantee against double jeopardy. Ashe , 397 U.S. at 445. Therefore, we agree with the Third Ci rcuit’s determination that “the liberty interest of a criminal defendant takes prio rity over the usual concerns for efficient judicial administration so often found in civil proceedings.” Pelullo , 14 F.3d at 893.

Second, the Hernandez-Uribe court perfunctorily concluded the “general rule is that collateral estoppel, where applicable, applies equally whether the previous criminal conviction was based on a jury ve rdict or a plea of guilty.” 515 F.2d at 22. Without further explanation, the courtcited two cases in support of this sweeping claim, Brazzell v. Adams , 493 F.2d 489 (5th Cir. 1974) and Hyslop v. United States , 261 F.2d 786 (8th Cir. 1958). Hernandez-Uribe , 515 F.2d at 22.

In Brazzell , a state prisoner brought a 42 U.S.C. § 1983 actio n against the district attorney and state agents who participatedin his arrest seeking damages-12-

based on allegation of police conduct akin to entrapment. 493 F.2d at 489. The court concluded the doctrine of collateral estoppel could be applied against the prisoner plaintiff in a subsequent civil action aga inst state agents as to facts necessarily admitted by his plea of guilty to the related criminal charge. Id . at 490. Similarly, Hyslop was a civil action brought by the United States un der the False Claims Act, 31 U.S.C. § 231, seeking to recov er forfeitures and damages. 261 F.2d at 787. The government had won a summary judgment based solely on evidence of the defendant’s earlier plea of guilty to the related criminal charge of misbranding eggs for sale to the United States Army. Id. at 790. The defendant admitted that in an appropriate case the rule of co llateral estoppel may be invoked,” but contested its application to the facts of his case. Id . The court reversed the grant of summary judgment, determining the doctrine of collateral estoppel did not apply where the government failed to prove the determinative questions were directly put in issue and determined by the plea of guilty. Id. at 790-92.

We are convinced the Brazzell and Hyslop cases relied on by the Eighth Circuit simply do not support application of the co llateral estoppel doctrine based on a plea of guilty against the defendant in a subs equent, unrelated criminal6In dictum, the Ninth Circuit has sanctioned the u se of a plea of guilty to

collaterally estop a defendant in a subsequent crim inal proceeding. See BejarMatrecios , 618 F.2d at 83-84. The court cited Brazzell , 493 F.2d at 490, and Ivers v. United States , 581 F.2d 1362 (9th Cir. 1978), for the so-called “general rule” that the collateral estoppel doctrine applies equally to guilty pleas and jury verdicts. Bejar-Matrecios , 618 F.2d at 83. Like Brazzelland Hyslop , Ivers was a civil action arising from a related criminal transaction to whi ch the defendant had pled guilty. Ivers , 581 F.2d at 1366-67 (civil forfeiture action related to unlawful attempt to bring undeclared currency into the Unite d States).

-13- proceeding. 6 These cases neither support nor explain the jump from applying the collateral estoppel doctrine against a defendant in a civil proceeding related to the underlying criminal transaction to which the defend ant pled guilty, to applying the doctrine against a defendant whose liberty inte rest is at stake in a successive criminal proceeding arising from a different crimin al transaction.

Third, the Eighth Circuit concluded a full adversary proceeding was not a prerequisite to collaterally estopping a criminal d efendant because Federal Rule of Criminal Procedure 11 “protects the defendant fr om an improvident plea of guilty.” Hernandez-Uribe , 515 F.2d at 22; accord Bejar-Matrecios , 618 F.2d at 83-84 (concluding it is “fair” to estop a defendantin a subsequent criminal proceeding based on a “knowing and voluntary” plea of guilty). However, while Fed. R. Crim. P. 11 does ensure that the defendant knowingly and voluntarily enters a plea for which there is a factual basis, see McCarthy , 394 U.S. 459; Fed.7Rule 11(f) provides:

Notwithstanding the acceptance of a plea of guilty, the court should not enter a judgment upon such plea without making such inquiry as shall satisfy it that there is a factual basis for the plea. Fed. R. Crim. P. 11(f).

-14- R. Crim. P. 11(c)-(f), Rule 11 safeguards are not t antamount to the full panoply of protections afforded by a jury trial. Of particula r concern in considering the use of a guilty plea to collaterally estop a criminal d efendant in a successive criminal proceeding is the lesser standard of proof requiredunder Rule 11 than required under the Due Process Clause of the United States Constitution. See Fed. R. Civ. P. 11(f); U.S. Const. amend. XIV. The Supreme Court explicitly has held that “the Due Process Clause protects the accused agains t conviction except upon proof beyond a reasonable doubt of every fact neces sary to constitute the crime with which he is charged.” In re Winship , 397 U.S. at 364. By contrast, Fed. R. Crim. P. 11, as the Hernandez-Uribe court noted, requires only that the court taking the plea satisfy itself that “there is a factual basis for the guilty plea.” 7515 F.2d at 22.

While we do not question the adequacy of the “factu al basis” requirement in the context of accepting a guilty plea, it is a lower standard than the “beyond a-15-

reasonable doubt” standard required to satisfy the due process requirements of a criminal trial. See, e.g., United States v. Alber , 56 F.3d 1106, 1110 (9th Cir. 1995) (court accepting guilty plea “need not be con vinced beyond a reasonable doubt” (internal quotation marks and citation omitted)); United States v. Tunning , 69 F.3d 107, 111-12 (6th Cir. 1995) (“‘strong evide nce of actual guilt’ is not necessary to satisfy Rule 11(f), even where a defen dant protests his innocence”); United States v. Marks , 38 F.3d 1009, 1012 (8th Cir. 1994) (factual basis established by “sufficient evidence at the time of the plea upon which the court may reasonably determine that the defendant likely committed the offense”), cert. denied , 514 U.S. 1067 (1995); United States v. Fountain , 777 F.2d 351, 357 (7th Cir. 1985) (Fed. R. Crim. P. 11(f) requires “some factual basis”), cert. denied , 475 U.S. 1029 (1986).

The Supreme Court has made it clear that difference s in the proof requirements of subsequent proceedings may preclude application of the doctrine of collateral estoppel. See Helvering v. Mitchell , 303 U.S. 391, 397 (1938) (observing that differences “in degree of the burde n of proof” may preclude application of the doctrine of res judicata ). In United States v. One Assortment of
89 Firearms , 465 U.S. 354 (1984), the defendant sought to use his acquittal on the charge of dealing firearms without a license as collateral estoppel in the-16-

subsequent in rem forfeiture proceeding against those firearms. Eve n though forfeiture was appropriate only if the jury in the forfeiture proceeding concluded the defendant had committed the underlying offense, the Court rejected the defendant’s attempt to estop the government from re litigating his wrongdoing, concluding “[i]t is clear that the difference in th e relative burdens of proof in the criminal and civil actions precludes the applicatio n of the doctrine of collateral estoppel.” Id . at 361-62. See also One Lot Emerald Cut Stones v. United States , 409 U.S. 232, 235 (1972) (per curiam) (holding Doub le Jeopardy Clause did not bar a forfeiture action subsequent to acquittal on the underlying offense because differences in the burden of proof requirements pre cluded application of collateral estoppel doctrine).

While the case at bar concerns successive criminal proceedings, rather than a criminal case and a civil case, we are convinced the same logic applies. We conclude the Fed. R. Crim P. 11 “factual basis” req uirement cannot satisfy the due process requirement that the government prove the essential elements of the charge “beyond a reasonable doubt” in a successive, unrelated criminal proceeding. Thus, the government’s use of a guiltyplea to collaterally estop a defendant from relitigating an issue in a subsequent criminal proceeding is contrary to the Due Process Clause.8Although we do not list the ways in which the gov ernment may enter a

defendant's prior conviction following a plea of gu ilty into evidence in a subsequent criminal proceeding, we emphasize that n othing in this opinion is intended to change the present law of this circuit.

9Because we decide this case under the Due Process Clause, we have no occassion to reach Mr. Gallardo-Mendez’ Sixth Amend ment claim, his sufficiency of the evidence claim, or the government’s challeng e to his sentence.

-17- We now hold that the government may not use a judgm ent following a plea of guilty to collaterally estop a criminal defendan t from relitigating an issue in a subsequent criminal proceeding. 8 Accordingly, the government’s attempted use of Mr. Gallardo-Mendez’ earlier plea of guilty to coll aterally estop him from contesting the issue of alienage in a subsequent cr iminal proceeding was constitutionally invalid. 9 Therefore, we REVERSE the judgment of conviction
and REMAND the case to the district court for further proceed ings consistent with this opinion.