Winston Churchill is famous for his "Never Give In" speech.
They must be watching that speech in the Federal Defenders of San Diego, particularly in that office's representation of Carlos Jesus Marguet-Pillado. Those lawyers did tremendous work for their client, solely because they never gave up. See the Ninth Circuit's recent opinion in United States v. Marguet-Pillado.
Mr. Marguet-Pillado was charged with illegal reentry. To be convicted, the government has to prove that he is an alien who was previously deported from the country and who came back without permission.
His attorneys found his birth certificate. His birth certificated said that Michael Marguet is Mr. Marguet-Pillado's father. Michael Marguet is a United States citizen.
As it happens, Michael Marguet is not Mr. Marguet-Pillado's birth father - he is his step-father.
If Mr. Marguet-Pillado is a United States citizen by virtue of his step-father's citizenship, then he is not an alien. If he is not an alien, he is not guilty of illegal reentry.
Mr. Marguet-Pillado went to trial. He waived a jury trial, and went to a trial in front of a judge. At that trial, he stipulated that he was deported and reentered the country. He argued that he was a citizen by virtue of his step-father's citizenship.
He lost. He appealed. The Ninth Circuit held that derivative citizenship, or citizenship that a person can acquire through one's parents, even if not born in the United States, cannot be conferred through a step-parent.
The Ninth Circuit sent the case back for another trial.
On retrial, Mr. Marguet-Pillado stipulated to nothing. He has a right to demand that the government prove him guilty beyond a reasonable doubt of each part of the offense. He held them to that proof. He demanded a jury.
He asked the trial court to instruct the jury about derivative citizenship. His lawyer said,
obviously, I'm not going to mislead the court or the jury . . . [however] . . . I think the Ninth Circuit has instructed us we're entitled to challenge the quality of the government's evidence . . . I'm not going to argue that our now-rejected legal theory should be the law[, but] I think we're entitled to say that the government hasn't met its burden with respect to an element of the crime.
He asked to have the jury told that derivative citizenship is possible. Here's the instruction:
A person is a natural-born United States citizen if that person was born in the United States. A person born outside the United States is also a natural-born citizen of the United States if, before the person's birth, one biological United States citizen parent of that person was physically present in the United States for ten years, at least five of which were after the citizen parent reached the age of fourteen.
Everyone agrees this is an accurate statement of the law. Yet the district court said no to this requested instruction. The Ninth Circuit already said that Mr. Marguet-Pillado is not a citizen - the district court wasn't going to instruct the jury that they can think about this.
Mr. Marguet-Pillado lost at trial. He appealed.
The Ninth Circuit just reversed, again. It reaffirmed the unremarkable proposition that the government has to prove every element of the offense to get a conviction. So the government has to prove Mr. Marguet-Pillado is not a citizen. And Mr. Marguet-Pillado is entitled to an instruction about who is a citizen.
So, back to trial again. Maybe the third time's a charm?