Academic journal article The William and Mary Bill of Rights Journal

Ninth Circuit Reversal: The Removal of Offensive Collateral Estoppel in Alienage Proceedings

Academic journal article The William and Mary Bill of Rights Journal

Ninth Circuit Reversal: The Removal of Offensive Collateral Estoppel in Alienage Proceedings

Article excerpt

INTRODUCTION

All may agree that criminal procedure is based upon constitutional principles. However, disunity ensues when the question is posed as to what those principles are and how they are to be applied. In 2005, the Ninth Circuit reversed forty-six years of precedent when it ruled that offensive collateral estoppel could no longer be used by the government against criminal defendants.1 This recent decision highlighted a circuit split regarding the government's use of offensive collateral estoppel in criminal cases.2 Currently, the Third, Ninth, Tenth, and Eleventh Circuits hold that offensive collateral estoppel is unlawful.3 With the recent reversal in the Ninth Circuit, only the Eighth Circuit still allows the government to use collateral estoppel against criminal defendants.4 With the circuit split unresolved, this Note seeks to understand the role of offensive collateral estoppel, particularly in alienage proceedings, and concludes that the use of collateral estoppel by the government is both constitutional and beneficial to the United States court system.

Part I of this Note explores the doctrine of offensive collateral estoppel, also known as issue preclusion, and its current use in the United States court system. Part I further examines the prevalence of offensive collateral estoppel as used by the government in federal criminal cases, including the specific issue of collateral estoppel in alienage proceedings. Part II discusses the public policy concerns for the use of offensive collateral estoppel and why alienage proceedings are uniquely capable of supporting offensive collateral estoppel. These public policy concerns provide a reasonable basis for the acceptance of offensive collateral estoppel in alienage proceedings. Reasons for the use of the doctrine include the conservation of judicial resources and the maintenance of court integrity through finality and consistency.

Part III turns to the recent removal of offensive collateral estoppel as a prosecutorial tool in aUenage proceedings in United States v. Smith-Baltiher.5 Part IV discusses the question of whether a guüty plea is considered fully litigated for collateral estoppel purposes. This question is often discussed in relation to alienage proceedings where the defendant has previously been arrested, pled guilty, deported, and subsequently returned to the United States. This Part analyzes whether the first guilty plea can collaterally estop the defendant from relitigating the nationality element of 8 U.S.C § 1326.

Part V will study the constitutionaUty of offensive collateral estoppel. The constitutionality of the doctrine includes studies of the Fifth, Sixth, and Fourteenth Amendments. Part V analyzes particular constitutional issues such as the right to a trial by jury, due process concerns, the Double Jeopardy Clause, the right to a speedy trial, and the Confrontation Clause as they relate to the doctrine of offensive collateral estoppel.

Part VI argues that if courts decide not to employ offensive collateral estoppel in aUenage proceedings, then the burden of proof should shift to the defendant to present persuasive evidence that the previous finding of nationaUty was either incorrect or that his circumstances changed. The Note concludes that offensive collateral estoppel is both constitutional and necessary for good public policy.

I. History of Offensive Collateral Estoppel

A. Res Judicata and Collateral Estoppel

Res judicata, also commonly referred to as claim preclusion, "attempts to avoid dupUcation of whole claims or cases."6 In contrast, issue preclusion, or collateral estoppel, seeks to "avoid duplication of particular issues."7 In essence, coUateral estoppel looks to the first litigation and notes each issue decided.8 Then, if a second lawsuit is initiated that reintroduces the same issue, collateral estoppel prevents that issue from being relitigated and binds the parties to the original decision in the first litigation. …

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