Petition for Writ of Certiorari — Olson v. United States
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Supreme Court, US
FILED
981083 Nov 20 8
No. QRCE OF Tur oie
IN THE
Supreme Court of the United States
OcToBer TERM, 1998
WARREN LEE UNDERWOOD and DAVID OLSON,
Petitioners,
VS.
UNITED STATES OF AMERICA,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PETITION FOR WRIT OF CERTIORARI
nee
eee
DANIEL BACON RONALD AULTMAN
906 North Street, Suite 100 Counsel of Record
Fresno, California 93721 LAW OFFICE OF
(559) 241-7000 RONALD AULTMAN
ALEX R. TANDY
Suite 124, 8751 Highway 890 East
Fort Worth, Texas 76116
(817) 560-8300
Attorneys for Petitioners
i
QUESTIONS PRESENTED FOR REVIEW
1. Was it error to fail to suppress evidence obtained
from Petitioner's Texas residence pursuant to the execution of
a search warrant due to the failure of the warrant to establish a
nexus between the items sought and the Texas residence?
2. Was it error to allow the redaction of the Jencks
Act discovery material that was turned over by the government
to Petitioner?
3. Was it error to deny Petitioner's request to play
at trial the entire tape recording of Romine's conversation with
Jesse James?
TABLE OF CONTENTS
Page
QUESTIONS PRESENTED FOR REVIEW ........... i
TABLE Ge Dt ak ec ine tec eee ee es ii
FABLE. GO AUSTEREO oo ne be kile tienen iil
CPT I oes okies ko bows l
STATEMENT OF JURISDICTION ................. ]
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED... ccc ckcceices l
STATEMENT OF Tite CAMS co 5 ss eas ue vctesese- 5
REASONS FOR GRANTING THE WRIT
I. THE AFFIDAVIT IN SUPPORT OF THE SEARCH
WARRANT FOR UNDERWOOD'S’ TEXAS
RESIDENCE FAILED TO ESTABLISH A NEXUS
BETWEEN THE ITEMS SOUGHT AND THE
RE GEE 9 6 ii ie Ee eae ee eee 12
IL. THE REDACTION OF THE MATERIAL
DISCOVERABLE PURSUANT TO THE
JENCKS ACT CONSTITUTED
PRE As oo 5 GAD RO 18
TABLE OF CONTENTS (CONT'D)
Page
Il. |THE FAILURE TO ALLOW INTO EVIDENCE THE
ENTIRE RECORDED CONVERSATION BETWEEN
ROMINE AND JAMES CONSTITUTED
PUMP IR, cc tce cece. 21
ct ce PRE EEE Seen caer ee 24
APPENDIX A-
MEMORANDUM OPINION OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT DATED
Pe, BE DOU ooo ois oct aiecnsadcrs..: la
APPENDIX B-
JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AGAINST WARREN LEE UNDERWOOD, DATED JULY
29, 1997 AND FILED JULY 30, 1997.00.00... 8a
APPENDIX C-
JUDGMENT OF THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF CALIFORNIA
AGAINST DAVID OLSON DATED AND FILED JUNE 16,
APPENDIX D-
PORTIONS OF TRIAL TRANSCRIPT CONTAINING
RULINGS AND ORDERS OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA DATED MARCH 21, 1997....00000...00..... 26a
APPENDIX E-
ORDER OF THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT DENYING PETITION FOR
REHEARING BY WARREN LEE UNDERWOOD DATED
PAPUA Fs PAE B85 COO vlciccccncenenssesccntnsonsvsnerncens 33a
APPENDIX F-
ORDER OF THE UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT DENYING PETITION FOR
REHEARING BY DAVID OLSON DATED AND FILED
Pe EA, Gh BO in es iar godeikecbevadassercsoetvecssnelomaion 34a
oO ree SRR RAEI th eta Ue t l
AAS RUM Aas AC eR a Rik CA ec: Sah Ue Ni ean in tad
TABLE OF AUTHORITIES
Cases Page
Brady v. Maryland, 373 U.S. 83 (1963) ............. 20
Brinegar v. United States, 338 U.S. 160
BR Bia GOS ay ae ab pe AERTS t Bae Picr 14
Illinois v. Gates, 462 U.S. 213 (1983) ......... 13, 14, 16
State v. Kahn, 555 N.W.2d 15 (Minn. Ct.
PR Re cb ki Sede Oa hk te Sa ee 17
United States v. Alvarez, 86 F.3d 901 (9th Cir.
1996), cert. denied, 117 S. Ct. 748 (1997) ...... 18
United States v. Arias-Villanueva, 998 F.2d 1491 (9th
Cir. 1993), cert. denied, 510 U.S. 937 (1994) ... 21
United States v. Bibbero, 749 F.2d 581 (9th Cir. 1984),
cert. denied, 471 U.S. 1103 (1985) ......... . 18
United States v. Clark, 31 F.3d 831 (9th Cir. 1994),
cert. denied, 115 S. Ct. 920(1995) ........... 13
United States v. Flanagan, 423 F.2d 745 (Sth
aE. | MBMRR ree: stitig Om emt a aso epee er te 17
United States v. Freeman, 685 F.2d 942 (Sth
Ga SOUR. oy ws Sia eee oe dae cee 6 ee 14
United States v. Giacalone, 541 F.2d 508 (6th
[at Be sewers eee thts Hi 14
United States v. Gomez, 625 F. Supp. 461
EARNS S REPE se bts 25555 eS 15, 16
vi
TABLE OF AUTHORITIES (CONT'D)
Cases Page
United States v. Gramlich, 551 F.2d 1359 (Sth
Cir. 1977), cert. denied, 434 U.S. 866
tg Bree geese agony pata pee year ea 12, 14, 16, 17
United States v. Green, 624 F.2d 222 (Sth Cir.
SGD sos ¥6 05 he eae Rew ak ek Bees 17
United States v. Knowles, 594 F.2d 753 (9th Cir.
Fagen sg Ne asta gs Petia Aah y/o Sue 18
United States v. Leon, 468 U.S. 897 (1984)........... 14
United States v. Lockett, 674 F.2d 843 (11th
EE Sn eae oa pee ess Fock is 14,17
United States v. Lucarz, 430 F.2d 1051 (9th
re a 14
United States v. Meeks, 857 F.2d 1201 (8th
Se EE o's orb iale Cae ee oS eke 22
United States v. Pitts, 6 F.3d 1366 (9th
Ge See Fy aca etek 12, 14, 15, 16 passim
United States v. Rios, 881 F. Supp. 772
ey RN BOI 0 oo os Sk ee ek hss cacao 16
United States v. Rosario, 918 F. Supp. 524
MR BE Ses Cg Oe ot oe ec 16
United States v. Ruiz, 822 F. Supp. 708 (D.
CE ak nk Scare he eerie 14, 16
vil
TABLE OF AUTHORITIES (CONT'D)
Cases Page
United States v. Terry, 911 F.2d 272 (9th
i eS St 15,17
United States v. Thai, 29 F.3d 785 (2d Cir. 1994),
cert. denied, 513 U.S. 977 (1995) ............ 22
United States v. Tropp, 725 F. Supp. 482 (D.
RAPES PAPAS oa a a rere 14
Zurcher v. Stanford Daily News, 436 U.S.
PO RIEE a e eas eee ses ee eee ee 14
Statutes
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OPINIONS BELOW
The opinion of the United States Court of Appeals for
the Ninth Circuit, filed on July 31, 1998, is unreported. It is
reproduced in Appendix A at la. The Ninth Circuit's order
denying Appellant Warren Lee Underwood’s Petition for
Rehearing, dated and filed on August 21, 1998, is unpublished.
It is reproduced in Appendix E at 33a. The Ninth Circuit’s
Order denying Appellant David Olson’s Petition for Rehearing,
dated and filed on September 28, 1998, is unpublished. It is
reproduced in Appendix F at 34a. The Judgments of the United
States District Court for the Eastern District of California,
against Warren Lee Underwood and David Olson, respectively,
dated July 29, 1997 and June 16, 1997, are reproduced as
Appendix B and C at 8 a and 17a, respectively. The trial court
orally denied the motion to suppress; there is no written order.
The trial court's orders denying Petitioners’ motions for
disclosure of all Jencks Act materials and overrulingy the
objection to the redaction of Jencks Act materials and the trial
court's denials of Petitioners’ requests to play the entire tape
recording of the conversation between Romine and James are
reproduced in Appendix D at 26a.
STATEMENT OF JURISDICTION
The decision of the United States Court of Appeals for
the Ninth Circuit was dated and filed on July 31, 1998. Its
orders denying the Petitions for Rehearing were dated and filed
on August 21, 1998 and September 28, 1998, respectively. The
jurisdiction of this Court is invoked pursuant to 28 U.S.C. §
1254(1).
CONSTITUTIONAL AND STATUTORY
PROVISIONS INVOLVED
The Fourth Amendment to the United States
Constitution provides as follows:
2
The right of the people to be secure in
their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall
not be violated, and no Warrants shall issue, but
upon probable cause, support by Oath or
affirmation, and particularly describing the place
to be searched, and the persons or things to be
seized.
The Jencks Act, 18 U.S.C. § 3500, provides as follows:
(a) In any criminal prosecution brought by the
United States, no statement or report in the
possession of the United States which was made
by a Government witness or prospective
Government witness (other than the defendant)
shall be the subject of subpoena, discovery, or
inspection until said witness has testified on
direct examination in the trial of the case.
(b) After a witness called by the United States
has testified on direct examination, the court
shall, on motion of the defendant, order the
United States to produce any statement (as
hereinafter defined) of the witness in the
possession of the United States which relates to
the subject matter as to which the witness has
testified. If the entire contents of any such
statement relate to the subject matter of the
testimony of the witness, the court shall order it
to be delivered directly to the defendant for his
examination and use.
(c) If the United States claims that any
statement ordered to be produced under this
section contains matter which does not relate to
the subject matter of the testimony of the
a eae
3
witness, the court shall order the United States
to deliver such statement for the inspection of
the court in camera. Upon such delivery the
court shall excise the portions of such statement
which do not relate to the subject matter of the
testimony of the witness. With such mater:al
excised, the court shall then direct delivery of
such statement to the defendant for his use. If,
pursuant to such procedure, any portion of such
statement is withheld from the defendant and the
defendant objects to such withholding, and the
trial is continued to an adjudication of the guilt
of the defendant, the entire text of such
statement shall be preserved by the United
States and, in the event the defendant appeals,
shall be made available to the appellate court for
the purpose of determining the correctness of
the ruling of the trial judge. Whenever any
statement is delivered to a defendant pursuant to
this section, the court in its discretion, upon
application of said defendait, may recess
proceedings in the trial for such time as it may
determine to be reasonably required for the
examination of such statement by said defendant
and his preparation for its use in the trial.
tha I, Le BI pace Aa?» RA adm ae
| (d) If the United States elects not to comply
with an order of the court under subsection (b)
or (c) hereof to deliver to the defendant any
| such statement, or such portion thereof as the
court may direct, the court shall strike from the
record the testimony of the witness, and the trial
shall proceed unless the court in its discretion
shall determine that the interests of justice
require that a mistrial be declared.
4
(e) The term "statement", as used in
subsections (b), (c), and (d) of this section in
relation to any witness called by the United
States, means—
(1) a written statement made by said
witness and signed or otherwise adopted
or approved by him;
(2) a stenographic, mechanical,
electrical, or other recording, or a
transcription thereof, which is a
substantially verbatim recital of an oral
statement made by said witness and
recorded contemporaneously with the
making of such oral statement; or
(3) a statement, however taken or
recorded, or a transcription thereof, if
any, made by said witness to a grand
jury.
Fed. R. Evid. 801(d)(2)(E) provides as follows:
(d) Statements which are not hearsay. A
statement is not hearsay if—
(2) Admission by party-opponent. The
statement is offered against a party and is .. .
(E) a statement by a coconspirator of a party
during the course and in furtherance of the
conspiracy.
5
STATEMENT OF THE CASE
This is a federal criminal case involving federal drug
offenses over which the United States District Court for the
Eastern District of California had subject-matter jurisdiction
pursuant to 18 U.S.C. § 3231. The appeal to the United States
Court of Appeals for the Ninth Circuit was from a final
judgment of conviction and sentence of the United States
District Court for the Eastern District of California. The Ninth
Circuit therefore had jurisdiction pursuant to 28 U.S.C. § 1291.
The Petitioner, Warren Lee Underwood
("Underwood"), along with codefendant David Olson
("Olson"), was charged by indictment with various drug
offenses. Underwood was charged with one count of
conspiracy to possess with intent to distribute
methamphetamine in violation of 21 U.S.C. §§ 841(a)(1) and
846 (Count One), one count of attempt to possess
methamphetamine with intent to distribute in violation of 21
U.S.C. §§ 841(a)(1) and 846 (Count Two), and one count of
being a felon in possession of a firearm in violation of 18 U.S.C.
§ 922(g) (Count Five). Underwood was also charged in two
counts under the criminal forfeiture statute, 21 U.S.C. § 853
(Counts Three and Four). Underwood pleaded not guilty and,
following a jury trial, was convicted on all counts. Underwood
was sentenced by the district court to a mandatory term of life
imprisonment pursuant to 21 U.S.C. § 841(b)(1(A)(viii).
The charges against Underwood arose out of an
undercover investigation conducted by federal authorities using
a confidential informant, Jesse James, and a cooperating
coconspirator, Ernest Romine. The charge of attempt to
possess with intent to distribute methamphetamine was based on
Underwood's alleged complicity in Romine's attempted
purchase of the drugs from Jesse James on February 29, 1996.
The conspiracy charge alleged that on or about October of 1993
through February of 1996, Underwood conspired with Romine
6
and David Olson to possess methamphetamine with intent to
distribute. Underwood and Olson were tried together and both
were convicted of the charges against them.
The government's case against Underwood was based
primarily on the testimony of Romine. After Romine's arrest on
February 29, 1996, he agreed to cooperate with the government
in exchange for a lighter sentence. (T. Tr. at 453-54.) Romine
implicated Underwood in Romine's attempted purchase of drugs
from James, and testified that between October of 1993 through
February of 1996 he made several purchases of various amounts
of methamphetamine which he then sold to Underwood. (/d. at
458-70, 481-86, 559.) According to Romine's testimony, he
would purchase drugs from various individuals in California and
transport them or have them transported, sometimes by Olson,
to Underwood at various motels in Texas, where Underwood
lived. (/d. at 458-70, 472-83, 486.) On two occasions prior to
February 1996, Underwood met Romine in California to
purchase drugs and transport them back to Texas. (/d. at 484-
85, 491-94.)
According to evidence presented by the government in
regard to the attempted purchase of methamphetamine from
James, Special Agent Donald McMillen of the Drug
Enforcement Agency (DEA) instructed James in February of
1996 to set up a drug deal with Ernest Romine. (/d. at 123-25.)
Acting on these instructions, James met with Romine on
February 27, 1996, outside Carrows Restaurant in Bakersfield,
California, to arrange a sale of 19 pounds of methamphetamine
to Romine. (/d. at 125-26.)
James was “wired” during this meeting and the
conversation was audiotaped. (/d.) At this meeting, Romine
agreed to pay $75,000 for 10 pounds of methamphetamine and
to pay later for the other 9 pounds. (/d. at 126, 503.) Federal
agents conducting surveillance observed Romine arrive at
Carrows Restaurant accompanied by Underwood. Underwood,
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however, remained in the restaurant, while Romine met with
James. (/d. at 127.)
Romine and James agreed to consummate the drug sale
on February 29, 1996 at a Home Base parking lot near the
Motel 6 in Bakersfield, near Highway 99 and Panama. (/d. at
128.) Underwood and Romine had previously checked into
Room 211 at the Motel 6. (/d. at 185-86.) At about 12:55
p.m. on February 29, Romine met James at the Home Base
parking lot. (/d. at 129.) Romine showed James $75,000, after
which an undercover officer pulled up in a pickup truck with the
drugs inside. After Romine took possession of the drugs, he
was arrested.
Shortly thereafter, agents went to Room 211 of the
Motel 6, an agent knocked on the door, and when Underwood
opened the door, he was arrested. (/d. at 187, 188.)
Underwood was then searched and various items found on him
were seized, including about $3,000 in cash, some capsules
containing methamphetamine, and a business card for Attorney
Alex. R. Tandy. (/d. at 188-91.)
The agents then secured the room and sought a search
warrant for the room. (/d. at 187, 205.) After obtaining the
warrant a short time later that same day, the room was searched
and various items were seized, including $23,500 in cash; a
briefcase containing, among other things, a pill bottle with
several capsules containing methamphetamine and a legal
document—a petition by Underwood for writ of habeas corpus;
and a smaller suitcase containing, among other things, a .38
Special revolver. (/d. at 194-205.) It was this gun that was the
basis for defendant's conviction of being a felon in possession of
a firearm.
On March 1, 1996, a search warrant was obtained for
Underwood's residence in Glen Rose, Texas. (/d. at 215-16.)
The warrant was executed the same day and various items were
8
seized, including various weapons, about $3,000 in cash, and
paraphernalia. (/d. at 224-45.) No drugs were found, however.
(/d.)
Prior to trial, the defendant filed motions to suppress the
evidence seized pursuant to the execution of search warrants on
February 29, 1996, from his motel room in California, and on
March 1, 1996, from his residence in Texas. (Documents 39,
43, 52.) both motions were denied by the district court, and the
evidence seized pursuant to these searches was admitted at trial.
(T. Tr. at 194-205, 224-45.)
In regard to his attempted purchase of drugs from Jesse
James, Romine testified that James contacted him in September
of 1996 about James selling drugs to him. (/d. at 495.) Romine
then contacted Underwood, whom he had not contacted in
several months, about James's offer. (/d at 494-96.)
Underwood told Romine that he would be interested. (/d. at
497.) Romine was living in Texas at this time, and he and
Underwood planned on going to California in Underwood's car
hauler to pick up Romine's car, which had been wrecked, and
possibly to look at some other cars. (/d at 495-97, 500.)
Underwood ran a legitimate car lot in Texas which involved
picking up and selling cars and traveled a lot in connection with
that business, including traveling to California. (/d. at 499, 669-
70.) Underwood also dealt in antique cars. (/d at 668.)
Romine often helped Underwood transport cars in connection
with Underwood's car business. (/d.)
Romine and Underwood left together for California on
February 25, 1996 in Underwood's wrecker. (/d. at 498-500.)
According to Romine, Underwood brought $100,000 with him.
(/d. at 501.) The money was kept in Romine's clothes bag. (/d.)
When they arrived in California two and one-half days later,
Romine and Underwood checked into a room at the Holiday Inn
in Palmdale, California. (/d.) Romine then contacted James by
9
telephone from the motel room to arrange the drug deal. (/d.
at 502.)
When Romine met James at the restaurant. in
Bakersfield, Underwood went with him but stayed in the coffee
shop during the meeting. (Jd. at 502-03.) On their way back
from the restaurant, Romine told Underwood about the deal,
and they agreed they would wait in California to make the deal
(/d. at 504-05.)
From the restaurant, Romine and Underwood went to
Romine's house in Rosamond, and Underwood bought two
scooters, some motor parts, and a Camaro, and also a trailer on
which to haul the Camaro back with him to Texas. (/d. at 505.)
Romine and Underwood returned to the motel, learned it was
booked, and then got a room at the Motel 6. (/d. at 506-07.)
Subsequently, Romine contacted J ames, and they agreed
to meet to carry out the drug deal. (/d. at 507.) Romine took
$75,000 with him to purchase the 10 pounds of
methamphetamine and put the remaining $24,000 in his bag.
(/d.) Underwood did not accompany Romine to this meeting
because Romine did not want James to see Underwood. (/d. at
509.)
Underwood did not know Jesse James and never spoke
to him. (/d. at 585.) Underwood presented no witnesses, but
his defense was that he went to California with Romine in
February of 1996 solely for purposes of his legitimate car lot
business and that he knew nothing of the drug deal between
Romine and James. Underwood further contended that he was
not involved in an ongoing drug conspiracy with Romine but
that Romine was involved with others in the drug business.
Underwood contended that Romine lied at trial and implicated
Underwood in order to receive a lighter sentence.
10
This defense was supported by statements made by
Romine to James during their meeting on February 27, 1996
and to Agent McMillen on February 29, 1996 following
Romine's arrest. During his meeting with James, Romine made
several references to the "money man" for the deal, who
Romine said was in Texas at the time and was named "Frank,"
an apparent reference to Frank Nunez. Underwood's name was
never mentioned. At trial, Romine testified that he told James
that he had gotten the money for the drugs from "a guy" who
was in Texas because he did not want James to know
Underwood was in California. (/d. at 511-12.)
In his tape-recorded statement to Agent McMillen made
on February 29, 1996, Romine made several assertions that
contradicted and impeached his trial testimony. Romine told
McMillen that, prior to the deal in February 1996 involving
James, he (Romine) had never been involved in any drug deals
with Underwood and had never seen Underwood do any drug
deals. (Jd. at 569, 587.) Romine also told McMillen that he
had never seen Underwood take any drugs and that the deal
with James was the only time Romine had ever known
Underwood to do anything such as that. (/d. at 570.) Romine
testified at trial that he lied to Agent McMillen because he was
nervous and had a headache. (/d at 509.) On cross-
examination, Romine also testified that he made 27 or 28 trips
to purchase and deliver drugs in 1994 and 1995 and that these
trips were for someone other than Underwood. (/d. at 524.)
Following his arrest, Romine had two interviews with
Special Agent Donald McMillen. The first interview, on
February 29, 1996, was tape-recorded. The second interview,
which apparently lasted many hours, was not tape-recorded, but
a report of the interview was turned over to the defendant.
These interviews and other Jencks Act discovery materials that
were turned over to the Petitioner pursuant to his motion for
such materials were heavily redacted by the district court. In
particular, the February 29 interview with Romine is very
1]
heavily redacted. Whole pages of the transcript of the interview
are simply blank, having been entirely redacted. The Petitioner's
objections to the redaction of this material were overruled.
During trial, the court allowed the Petitioner to play a
portion of the tape-recorded conversation between the
government's chief witness and Jesse James, who was "wired"at
the time and acting as an informant for the government. (/d. at
641.) The conversation took place on February 27, 1996 and
involved Romine's attempted purchase of approximately 19
pounds of methamphetamine from James. The trial court
denied Petitioner's motion to play the entire tape recording of
the conversation but allowed only a portion of the tape to be
played. (/d. at 543-58 )
Among the issues raised on appeal were (1) whether the
district court erred in denying Underwood's motions for
suppression of evidence, (2) whether the district court erred in
redacting Jencks Act material, and (3) whether the district court
erred in failing to admit the entire recorded conversation
between Romine and James. The Ninth Circuit ruled against
Underwood and Olson and affirmed their conviction.
12
_
REASONS FOR GRANTING THE WRIT
L. THE AFFIDAVIT IN SUPPORT OF THE
SEARCH WARRANT FOR
UNDERWOOD'S TEXAS RESIDENCE
FAILED TO ESTABLISH A NEXUS
BETWEEN THE ITEMS SOUGHT AND
THE RESIDENCE.
This case presents the situation where a decision of the
Ninth Circuit, United States v. Pitts, 6 F.3d 1366 (9th Cir.
1993), relied on by the Ninth Circuit in this case to uphold the
search warrant at issue, is in conflict with a decision of the Fifth
Circuit in United States v. Gramlich, 551 F.2d 1359 (Sth Cir.
1977), cert. denied, 434 U.S. 866 (1978). This conflict
implicates important Fourth Amendment concerns which should
be addressed by this Court.
On March 1, 1996, one day after Underwood's arrest in
California, a Texas search warrant was issued to search the
Somervell County, Texas, residence of Underwood for
"financial records, ledgers, and/or business writings relating to
the distribution of controlled substances." The warrant was
executed on March 1, 1996 and was based on the affidavit of
Adam King, a Texas narcotics officer.
The affidavit alleges that Underwood ran a drug
operation out of Texas involving various persons. Most of the
concrete information provided, however, concerns the arrests
of several of the other persons. For example, the affidavit states
that Olson was arrested on November 18, 1994, Rice was
arrested on February 9, 1995, and Milton was arrested on
November 1, 1995. Underwood's residence in Texas has no
connection to these arrests that occurred one to two years or
more prior to the search in this case. Thus, the bulk of the
Re ana Raa ee ee eR RER nF
13
affidavit merely provides background information that utterly
fails to link the Texas residence to criminal activity.
The only direct link to Underwood recited in the
affidavit relates to his arrest in his motel room on February 29,
1996. This arrest occurred after the arrest of Romine on
February 29, following his attempted purchase of
methamphetamine from an informant and undercover officer.
After his arrest, Romine told officers that the $75,000 he had to
buy the drugs belonged to Underwood and that the drugs were
going back to Underwood. Romine also told police that there
was approximately $24,000 in the motel room and that
Underwood was in the room. The police then went to the motel
room, arrested Underwood, and secured the room until the
search warrant arrived.
Although the foregoing facts may have established
probable cause to arrest Underwood in California, they do not
establish probable cause to search his residence in Texas for the
items sought. The police had no information that drugs or
contraband were in the residence. The Affiant's expert opinion
that drugs and other evidence would be found in the residence
is insufficient to establish probable cause.
A warrant may issue for the police to search a certain
place and seize certain items only if supported by an affidavit
showing probable cause, that is, facts and circumstances, within
the Affiant's knowledge that would warrant a person of
reasonable caution to believe that a specific offense has been
committed and that property resulting from or evidencing the
offense is located at the particular place to be searched. J/linois
v. Gates, 462 U.S. 213 (1983); United States v. Clark, 31 F.3d
831 (9th Cir. 1994), cert. denied, 115 S. Ct. 920 (1995). The
existence of probable cause is determined upon sufficient and
substantial facts, based upon a practical, common-sense
consideration of the totality of the circumstances. JIlinois v.
Gates. An affidavit must present the magistrate with sufficient
14
information to allow him to determine probable cause; a mere
conclusory statement will not do. See United States v. Tropp,
725 F. Supp. 482 (D. Wyo. 1989).
While the probable cause requirement of the Fourth
Amendment does not require certainty before the search
warrant may be issued, the courts have made it clear that
something more than a mere suspicion is necessary. Brinegar
v. United States, 338 U.S. 160 (1949); United States v.
Giacalone, 541 F.2d 508 (6th Cir. 1976). Probable causes
cannot be established by affidavits which are conclusory,
provide little in the way of detail, or merely recite that the
Affiant or some informant believes that probable cause exists.
United States v. Tropp. The Fourth Amendment requires that
the magistrate judge who issues a search warrant be provided
with information from which he can make an independent
evaluation of probable cause. United States v. Ruiz, 822 F.
Supp. 708 (D. Kan. 1993). While it is recognized that a
magistrate's determination of probable cause should be paid
deference by reviewing courts, such deference “is not
boundless." United States v. Leon, 468 U.S. 897, 914 (1984).
The Supreme Court has consistently stressed that reviewing
“courts must continue to conscientiously review the sufficiency
of affidavits on which warrants are issued." J/linois v. Gates,
462 U.S. at 239.
As noted, the Fourth Amendment requires that there be
probable cause to believe that evidence of a crime will be found
in the location the state wishes to search. See Zurcher v.
Stanford Daily News, 436 U.S. 547 (1978). That is, a nexus
must be established between the items sought and the place to
be searched. See United States v. Pitts, United States v.
Lockett, 674 F.2d 843 (11th Cir. 1982); United States v.
Gramlich. Probable cause to believe that a person has
committed a crime does not automatically provide probable
cause to search his residence. United States v. Pitts, United
States v. Freeman, 685 F.2d 942 (Sth Cir. 1982); United States
ae
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ial i
15
v. Lucarz, 430 F.2d 1051 (9th Cir. 1970). No nexus was
established in this case.
The Ninth Circuit relied upon United States v. Pitts to
uphold the validity of the search warrant in this case against a
challenge based, inter alia, on the warrant's failure to establish
a nexus. In United States v. Pitts, the Ninth Circuit reiterated
the rule followed in that circuit that in the case of drug dealers,
evidence is likely to be found where the dealers live. 6 F.3d at
1369. In this case, the Ninth Circuit applied this rule without
regard to the underlying facts and with no further discussion in
holding that the search warrant established a reasonable nexus
between the evidence sought and Underwood's Texas residence.
Application of such a broad rule under the facts presented here
demonstrates its fallacy and its unconstitutionality when strictly
applied in all situations.
Moreover, the underpinnings of the rule conflict with
decisions in other federal courts. Pitts cites United States v.
Terry, 911 F.2d 272 (9th Cir. 1990), in support of the foregoing
rule. In Jerry, support for the rule is found in the principle that
a magistrate may rely on the conclusions of experienced law
enforcement officers regarding where evidence of a crime is
likely to be found. Jd. at 275.
The better principle, however, as stated by other federal
courts, is that while the issuing magistrate is entitled to consider
and credit the Affiant's specialized knowledge, it alone does not
provide probable cause to search. United States v. Gomez, 625
F. Supp. 461 (E.D.N.Y. 1987). Indeed, as stated in Gomez,
where, as here, there is nothing to connect the alleged illegal
activities with the place to be searched, to issue a warrant based
solely on the agents’ expert opinion "would be to license
virtually automatic searches of residences of persons arrested
for narcotics offenses." Jd at 463. This would "effectively
eviscerate the Fourth Amendment's requirement that there be
probable cause to believe ‘that contraband or evidence of a
16
crime will be found in a particular place." Id. (quoting JIlinois
v. Gates, 462 U.S. at 238 (Gomez court's emphasis); United
States v. Rios, 881 F. Supp. 772, 777 (D. Conn. 1995) (the
“better rule is the one applied in Gomez"); United States v. Ruiz
(nexus not established by expert opinion of law enforcement
officers); United States v. Rosario, 918 F. Supp. 524, 530-31
(D.R.I. 1996) (court discusses conflict in the circuits on the
issue and rejects the Ninth Circuit rule, stating that to “permit
a search warrant based solely upon the self-avowed expertise of
a law-enforcement agent, without any other factual nexus to the
subject property, would be an open invitation to vague warrants
authorizing virtually automatic searches of any property used by
a criminal suspect").
A situation similar to that at issue here was presented in
United States v. Gramlich, and the decision in Gramilich is in
conflict with the decision in Pitts. In Gramlich, the defendant
was arrested while unloading marijuana from a Columbian
freighter, and there was other evidence which indicated his
substantial involvement in a smuggling operation. Nevertheless,
the court held that such facts did not provide probable cause to
search the defendant's residence, some 50 miles away, for
marijuana, drug paraphernalia, and business records. The court
stated as follows:
In actuality, the affidavit related only one
relevant circumstance upon which the
magistrate could base his probable cause
determination—the owner of the residence had
been caught in the act of smuggling contraband
at a place over fifty miles from his residence.
This fact alone is insufficient to justify the
inference that incriminating evidence existed at
the residence. As Judge Godbold stated in the
context of a burglary prosecution, "The
statement [in an affidavit], even if reliable, that
a named person who is a known felon has
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a Ame a ecg ices
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17
committed a burglary, plus possession by the
suspect of some of the proceeds when arrested,
does not without more authorize the issuance of
a warrant to search the residence of the accused
miles away." . . .
We believe that Flanagan controls this
case. We echo its conclusion: "It would be
inappropriate for us, in this case, to attempt to
spell out what might tip the scales. What we do
decide is that what was here presented, accepted
as reliable and as supported by sufficient
circumstances, is not enough."
551 F.2d at 1362 (quoting United States v. Flanagan, 423 F.2d
745, 747 (Sth Cir. 1970) (citations omitted)); accord United
States v. Lockett, see United States v. Green, 634 F.2d 222 (Sth
Cir. 1981) (evidence of defendant's criminal activity in
California was not sufficient to establish probable cause to
search his Florida residence).
As Gramiich and the other cited authority demonstrates,
the required nexus to Underwood's Texas residence was not
established in this case. Underwood's activities and arrest in
California do not establish probable cause to search his Texas
residence for drugs and related evidence. It is respectfully
submitted that the broad mule stated in Pitts, which was relied on
by the Ninth Circuit in this case, is erroneous. The decision in
Pitts is in conflict with the decision in Gramlich and under
Gramlich, no nexus was established in this case. See also State
v. Kahn, 555 N.W.2d 15, 18 (Minn. Ct. App. 1996) (Minnesota
has not adopted the reasoning of Pitts and Terry). This case, in
light of the facts presented, offers an excellent opportunity for
this Court to address and settle this conflict. Therefore,
especially in light of the important Fourth Amendment
implications presented, it is respectfully submitted that the
Court should grant the Petition in this case.
18
Il. THE REDACTION OF THE MATERIAL
DISCOVERABLE PURSUANT TO THE
JENCKS ACT CONSTITUTED
PREJUDICIAL ERROR.
Under the Jencks Act, 18 U.S.C. § 3500, the
government must turn over pretrial statements made by the
prosecution witnesses related to the subject matter of their trial
testimony. United States v. Alvarez, 86 F.3d 901 (9th Cir.
1996), cert. denied, 117 S. Ct. 748 (1997). "There are no
exceptions to the Jencks rule that all statements relevant to the
subject matter of the witness’ testimony must be produced."
United States v. Alvarez, 86 F.3d at 907 (quoting United States
v. Bibbero, 749 F.2d 581, 585 (9th Cir. 1984), cert. denied, 471
U.S. 1103 (1985)). "The statement need relate only generally
to the events and activities testified to by the witness to come
within this sweep." United States v. Alvarez, 86 F.3d at 907.
The district court's denial of discovery pursuant to the Jencks
Act is reviewed for abuse of discretion. Jd. at 901. Failure to
disclose under the Jencks Act is subject to harmless error
review. United States v. Alvarez. Thus, failure to comply with
the Jencks Act does not per se require a new trial. United
States v. Knowles, 594 F.2d 753 (9th Cir. 1979). However,
such failure calls for close scrutiny. Jd. The harmless error
doctrine must be strictly applied in Jencks Act cases. Jd.
The redacted Jencks Act materials primarily at issue here
are interviews by the government with Romine following his
arrest. Romine was the key government witness, an alleged
coconspirator who cooperated with the government pursuant to
a plea agreement in exchange for a lighter sentence. Petitioner,
of course, does not know what was contained in the redacted
material A review of the unredacted material, however,
suggests that the redacted material relates to other drug
dealings by Romine with individuals whose identities are
unknown to the defendant. Such information would be relevant
and would have been very useful to Underwood's defense at
19
trial. Underwood's defense was that he was not involved in
drugs with Romine but only accompanied him to California for
legitimate purposes involving Underwood's car business. This
position was supported by statements made by Romine to
Special Agent McMillan during the February 29 interview and
to Jesse James during their tape-recorded drug dealings on
February 27, 1996, indicating that someone other than
Underwood, a Frank Nunez, was Romine's money man and that
his man was in Texas at the time. Underwood, of course, was
in California at the time.
During McMillan's interview with Romine on February
29, 1996, Romine told McMillan that he had never sold drugs
to Underwood in the past. (Tr. of Feb. 29, 1996 Interview at
1923.) This, of course, contradicts Romine's trial testimony.
Romine told McMillan that he only contacted Underwood about
the deal with Jesse James because he knew Underwood had
money and could get rid of the drugs. (Jd) Romine told
McMillan that he did not know anything about Underwood's
business or any of his past drug dealings. (/d. at 1925-26.)
Romine also stated that he never saw Underwood sell
methamphetamine, although Underwood had told Ronnie that
he had sold methamphetamine before. (/d. at 1926.)
During the interview, Romine also told McMillan that
on February 27, 1996, when he told Jesse James, whom he
refers to as "Cookie," about how “they made their money" on
drugs by "breaking it down into quarter pounds and ounces," he
was talking about someone other than Underwood. (/d. at
1940.) Following this statement, the next two pages of the
transcript are redacted, and it resumes with Romine saying he
once bought drugs from a Bobby Gonzales. (/d. at 1941-43.)
This obviously suggests that the redacted portions pertain to
other individuals with whom Romine was involved in the drug
business.
20
Other redactions also occur after the conversation
appears to turn to Romine's drug dealings with other
individuals. (See id. at 1943-45, 1947-50, 1960-64.) Of
particular significance is the redaction following Romine's
mentioning of Mr. Nunez and his drug dealings with Nunez.
(Id. at 1947-50.) Nunez is the person Romine indicates is the
money man in his tape-recorded conversation with Jesse James.
All of this suggests that the redacted portions of the
Jencks Act discovery material involve drug dealings conducted
by Romine with individuals other than Underwood. If so, this
material clearly falls within the scope of Brady v. Maryland,
373 U.S. 83 (1963). Romine's trial testimony concerned his
prior drug dealings over the course of several years, and he
implicated Underwood in these dealings. Underwood's defense
was that he was not involved in these prior drug dealings and
that Romine was lying in order to curry favor with the
government in order to receive a greatly reduced sentence. If
Romine's prior statements described his prior drug dealings with
other individuals, then clearly they related at least generally to
the events and activities he testified to at trial, and thus they
were discoverable under the Jencks Act.
Moreover, such material would have been highly
relevant to Underwood's defense that, not he, but others, were
involved with Romine's past drug dealings. Romine's prior
statements could have been used to support this defense and to
impeach Romine's trial testimony. In light of the fact that the
government's case hinged almost entirely on Romine's
testimony, the importance of such material cannot be
overstated. Thus such material was also discoverable under
Brady.
Circuit Judge Kleinfeld, dissenting from the majority
opinion issued by the Ninth Circuit in this case, agreed with
Petitioner that the redacted material was within the scope of the
21
Jencks Act and was relevant to Underwood's defense and,
therefore, should have been produced by the government.
In light of the foregoing authority and dissenting
opinion, it is respectfully submitted that this Court should take
this opportunity to address the important issues raised in this
case under the Jencks Act and, therefore, should grant this
Petition.
IL THE FAILURE TO ALLOW INTO
EVIDENCE THE ENTIRE RECORDED
CONVERSATION BETWEEN ROMINE
AND JAMES CONSTITUTED
PREJUDICIAL ERROR.
An out-of-court statement by a coconspirator is
admissible if (1) there is independent evidence of the existence
of a conspiracy, (2) the statement was made in furtherance of
the conspiracy, and (3) the statement was made during the
course of the conspiracy. United States v. Arias-Villanueva,
998 F.2d 1491 (9th Cir. 1993), cert. denied, 510 U.S. 937
(1994); see Fed. R. Evid. 801(d)(2)(E). To be in furtherance of
the conspiracy, the statement must further the common
objectives of the conspiracy. United States v. Arias-Villanueva.
The declarant's intent and not the actual effect is what is
important. Jd While mere conversations or narrative
declarations are not admissible under this rule, statements made
to induce enlistment, further participation, prompt further
action, allay fears, or keep coconspirators abreast of an ongoing
conspiracy's activities are admissible. Jd.
While statements that are merely "idle chatter" or that
are “entirely retrospective" are not in furtherance of the
conspiracy, statements relating past events meet the “in
furtherance" test if they serve some current purpose in the
22
conspiracy, such as to promote cohesiveness or to provide
reassurance to a coconspirator. United States v. Thai, 29 F.3d
785, 813 (2d Cir. 1994), cert. denied, 513 U.S. 977 (1995).
Statements identifying other coconspirators or identifying a
coconspirator's source for drugs have been deemed to be
statements "in furtherance" of the conspiracy. United States v.
Meeks, 857 F.2d 1201, 1203 (8th Cir. 1988).
The portions of the conversation between James and
Romine that the district court did not allow into evidence clearly
fell within the coconspirator exception to the hearsay rule and
should have been admitted into evidence. The statements at
issue met the foregoing test for admissibility. The district court
apparently believed that the statements were not "in
furtherance" of the conspiracy. Such finding is erroneous.
While the statements may not have been directly related to
attempted purchase of methamphetamine from James, they
clearly meet the "in furtherance" test set forth above. The
Statements can be characterized as designed to keep
coconspirators abreast of the ongoing conspiracy's activities or
to promote cohesiveness or to provide reassurance to a
coconspirator. Moreover, the statements appeared to identify
or at least discuss other possible coconspirators. Accordingly,
the statements were "in furtherance" of the conspiracy and
therefore admissible. Furthermore, such statements were
necessary to place the admitted portions of the conversation in
context and to flesh out the references by Romine identifying
the "money man" for the drug as someone other than
Underwood.
Again, Circuit Judge Kleinfeld dissented from the Ninth
Circuit's majority opinion on this issue. Judge Kleinfeld agreed
with Petitioner and found that the excluded portions of the tape
added credibility and salience to the theory that Nunez, not
Underwood, was the buyer and that the excluded portions
would have been of significant force for that purpose.
23
In light of the foregoing authority and dissenting
opinion, it is respectfully submitted that this Court should grant
this Petition in order to address the important issues raised here.
Petitioner is serving a mandatory term of life imprisonment
based on his conviction in this case. It is respectfully submitted
that had the trial court allowed the disputed evidence at issue
into evidence, Petitioner would not have been convicted.
Accordingly, Petitioner respectfully requests that this Court
grant this Petition in order to address the important issues
presented.
24
CONCLUSION
For all the foregoing reasons, the Petitioners, Warren
Lee Underwood and David Olson requests this Court to
grant this Petition for Writ of Certiorari.
Respectfully submitted,
RONALD AULTMAN
Counsel of Record
LAW OFFICE OF
RONALD AULTMAN
ALEX R. TANDY
Suite 124, 8751 Highway 80 East
Fort Worth, Texas 76116
(817) 560-8300
DANIEL BACON
906 North Street, Suite 100
Fresno, California 93721
(55%) 241-7000
Attorneys for Petitioners
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APPENDIX A — MEMORANDUM OPINION OF THE
UNITED STATES COURT OF APPEALS FOR THE
NINTH CIRCUIT DATED AND FILED JULY 31, 1998
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 97-10291
D.C. No. CR-96-05059-REC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
DAVID OLSON,
Defendant-Appellant.
No. 97-10344
D.C. No. CR-96-05059-REC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v.
WARREN LEE UNDERWOOD,
Defendant-Appellant.
MEMORANDUM*
* This disposition is not appropriate for publication and may not
be cited to or by the courts of this circuit except as provided by Ninth
Circuit Rule 36-3.
2a
Appendix A
Appeal from the United States District Court
for the Eastern District of California
Robert E. Coyle, Chief District Judge, Presiding
Argued and Submitted June 9, 1998
San Francisco, California
Before: WALLACE, T.G. NELSON, and KLEINFELD,
Circuit Judges.
David Olson and Warren Lee Underwood appeal their
convictions for drug offenses following jury trials. We have
jurisdiction under 28 U.S.C. § 1291 and affirm.
A. The Search Warrants
We accord significant deference to the magistrate making
the original determination of probable cause and review such a
finding for clear error. United States v. Fulbright, 105 F.3d
443, 453 (9th Cir.), cert. denied, 117 S. Ct. 1836 (1997). After
reviewing the affidavits submitted in sup; ort of the search
warrants challenged in this case, we hold there was no clear
error in finding probable cause.
Regarding the Texas warrant, our precedent is clear that a
magistrate may reasonably conclude that in the case of drug
dealers, evidence is likely to be found where the dealers live.
United States v. Pitts, 6 F.3d 1366, 1369 (9th Cir. 1993)
(citations omitted). Further, the information contained in the
affidavit was not stale because the evidence sought was of an
ongoing criminal business engaged in narcotics trafficking. See
United States v. Vaandering, 50 F.3d 696, 700 (9th Cir. 1995);
Pitts, 6 F.3d at 1369.
Ni tet OE Ue Ses on aa a
3a
Appendix A
Regarding the California warrant, the affidavit provides a
reasonable nexus between the motel room and the narcotics
activity. Further, the mere fact that the list of items to be seized
refers to categories of evidence does not render the search
warrant overbroad. United States vy. Pollock, 726 F.2d 1456,
1465-66 (9th Cir. 1984). Although we agree that the authorized
seizure of “[pjapers, tickets, notes, schedules, receipts, and other
items relating to travel” may be overbroad, the Government is
correct that nothing was seized under this category of the
warrant and therefore there is nothing to suppress. Finally, the
catchall phrase at the end of the search warrant does not render
the warrant invalid because it is not the only sentence describing
the items to be seized. See United States v. Clark, 31 F.3d 831,
836 (9th Cir. 1994); United States vy. Perdomo, 800 F.2d 916,
920 (9th Cir. 1986).
B. The Jencks Act Materials
We review the district court’s denial of a discovery motion
made pursuant to the Jencks Act for an abuse of discretion.
United States v. Nash, 115 F.3d 1431, 1440 (9th Cir. 1997),
cert. denied, 118 S. Ct. 1054 (1998). A new trial is required
only if we conclude “that a producible statement existed and
that substantial rights of appellant were affected by the failure
to make that statement available for his use in cross-
examination.” United States v. Ogbuehi, 18 F.3d 807, 811 (9th
Cir. 1994) (quotation and citation omitted). Having thoroughly
reviewed in camera the redacted material submitted to us by
the Government under seal, we are convinced that the district
court did not abuse its discretion in deciding that the redacted
material was not “producible” under the Jencks Act.
4a
Appendix A
C. The Redacted Tape Recording
We review the district court’s decision to exclude a portion
of the tape-recorded statement between Jesse James and Ernest
Romine on relevance grounds for an abuse of discretion. United
States v. Hicks, 103 F.3d 837, 843 (9th Cir. 1996), cert. denied,
117 S. Ct. 1483 (1997). To be admissible as an out-of-court
statement by a coconspirator, the recorded statement must be
made “in furtherance of the conspiracy” to advance “the
common objectives of the conspiracy.” United States v.
Arias-Villanueva, 998 F.2d 1491, 1502 (9th Cir. 1993).
“[S]tatements made to induce enlistment, further participation,
prompt further action, allay fears or keep coconspirators abreast
of an ongoing conspiracy’s activities are admissible.” /d.
However, mere conversations, narrative declarations, and idle
chatter are not admissible. /d.
The district court did not abuse its discretion by excluding
a portion of the tape-recorded conversation. The excluded
portion discussed the lavish lifestyle of a man named “Frank,”
who James and Romine apparently believed spent a lot of money
and led an active social life. This discussion, however,
amounted to little more than idle chatter and did not further the
conspiracy or its objectives. The district court’s exclusion of
this small portion of dialogue embedded in the middle of a much
longer conversation was not an abuse of discretion.
D. The Allen Charge
The district court did not abuse its discretion in instructing
the jury with an Allen charge. United States v. Hernandez, 105
F.3d 1330, 1333 (9th Cir.), cert. denied, 118 S. Ct. 227 (1997).'
1. Like the district court, we decline to consider the post-verdict
statement made by juror Teresa Velasquez. See Federal Rule of Evidence
606(b).
Sa
Appendix A
The critical inquiry is whether “it is clear from the record that
the charge had an impermissibly coercive effect on the jury.”
Id. The instruction delivered in this case substantially followed
the Ninth Circuit’s model instruction. However, the district
court should not have instructed the jury three times that the
case would be retried to another jury if this one failed to reach
a verdict. We have noted that such comments have “no proper
place before the jury” because “it is not true that the case will
have to be retried; that is a matter of prosecutorial discretion.”
United States v. Bonam, 772 F.2d 1449, 1450 (9th Cir. 1985).
Nevertheless, this case is like Hernandez, which held:
The district court should not have mentioned the
possibility of retrial in this case. However, this
comment was made in the context of the district
court’s statement that no other set of jurors would
be better equipped to decide the case than this jury.
In this setting, the statement concerning retrial was
not coercive.
Hernandez, 105 F.3d at 1334. Finally, the additional
deliberation of sixty-six minutes following the instruction was
not so short as to raise the specter of coercion. /d.
E. Jury Misconduct
Because none of the statements made after the verdict by
juror Velasquez involve “extraneous prejudicial information”
or “extraneous influences” on the jury, her statement is
inadmissible to impeach the verdict. See Fed. R. Evid. 606(b);
Tanner v. United States, 483 U.S. 107, 119 (1987); McDowell
v. Calderon, 107 F.3d 1351, 1367 (9th Cir. 1997), superseded
in part on other grounds, 130 F.3d 833 (9th Cir. 1997), cert.
6a
Appendix A
denied, 118 S. Ct. 1575 (1998). The defendants are not entitled
to an evidentiary hearing on this issue because the conclusion
that the information allegedly misused by the jury is extraneous
is a predicate for this circuit’s requirement that a hearing be
held “to determine the precise nature of the extraneous
information.” United States v. Bagnariol, 665 F.2d 877, 885
(9th Cir. 1981). Because none of the alleged instances of
misconduct involved extraneous information, no hearing was
required.
Jurors do not enter the jury room as blank slates. The fact
that some jurors apparently expressed some of “the general
knowledge, opinions, feelings and bias that every juror carries
into the jury room” does not demonstrate jury misconduct.
McDowell, 107 F.3d at 1367. One juror’s alleged statement
that the case could never have been tried in federal court unless
the defendants were guilty does not amount to juror bias. See
United States v. Eubanks, 591 F.2d 513, 516-17 (9th Cir. 1979).
AFFIRMED.
7a
Appendix A
United States v. Olson and Underwood, 97-10291, 97-10344
KLEINFELD, Circuit Judge, dissenting:
I join in all parts of the majority disposition except paris B
and C, as to which I respectfully dissent.
For the Jencks Act and the tape, it was relevant whether
evidence showed that Nunez was the buyer, or Underwood. As
to Underwood, evidence that Nunez was the buyer was
exonerating. As to Olson, such evidence would tend to show
that Romine was lying. While the relevance of the evidence as
to Olson is more tenuous, its importance may have been
considerable, because the jury nearly hung as to him.
The Jencks Act requires production of any statement which
“relates to” the witness’s testimony, whether it is exonerating
or not. 18 U.S.C. § 3497(b). The redacted Statements, in my
opinion, relate to Romine’s testimony.
In my opinion, the district judge was outside the bounds of
his discretion in excluding a portion of the tape. It added
credibility and salience to the theory that Nunez, not
Underwood, was the buyer. The defendants’ problem was not
so much putting on some evidence of that proposition, as
persuading the jury to listen to and believe it. The excluded
portion of the tape would have been of significant force for
that purpose.
8a
APPENDIX B — JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA AGAINST WARREN LEE UNDERWOOD
DATED JULY 29, 1997 AND FILED JULY 30, 1997
United States District Court
Eastern District of California
Case Number: 1:96CR05059-001
UNITED STATES OF AMERICA
V.
WARREN LEE UNDERWOOD
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed On or After November 1, 1987)
ALEX TANDY, JAMES HOMOLA
Defendant’s Attorney
THE DEFENDANT:
was found guilty on count(s) ONE, TWO & FIVE after a
plea of not guilty.
9a
Appendix B
Title & Nature of Date Offense Count
Section Offense Concluded Number(s)
21 U.S.C. Conspiracy to 02/29/1996 one
841(a)(1) Possess with Intent to
& 846 Distribute Controlled
Substance
21 U.S.C. Attempt to Possess 02/29/1996 two
841(a)(1) Controlled Substance
& 846 with Intent to
Distribute
18 U.S.C. Felon in Possession 02/29/1996 Five
922(g) of Firearm
The defendant is sentenced as provided in pages 2 through
7 of this judgment. The sentence is imposed pursuant to the
Sentencing Reform Act of 1984.
- ~ -
IT IS FURTHER ORDERED that the defendant shall notify
the United States Attorney for this district within 30 days of
any change of name, residence, or mailing address until all fines,
restitution, costs, and special assessments imposed by this
judgment are fully paid.
Defendant’s Soc. Sec.
No.: 461-72-4258
Defendant’s Date of
Birth: 09/07/1946
Defendant’s USM
No.: 57245-097
Defendant’s Residence
Address:
10a
Appendix B
07/28/1997
Date of Imposition of Judgment
s/ Robert E. Coyle
Signature of Judicial Officer
ROBERT E. COYLE
U.S. DISTRICT JUDGE
Name and Title of Judicial Officer
Fresno County Jail 7/29/97
Fresno CA Date
Defendant’s Mailing
Address:
Fresno County Jail
Fresno CA
IMPRISONMENT
The defendant is hereby committed to the custody of the
United States Bureau of Prisons to be imprisoned for a total
term of life as to counts One and Two to be served concurrently.,
(180) months as to count 5 to be served concurrently with counts
One and Two.
{<j The court makes the following recommendations to the
Bureau of Prisons:
The Court recommends the defendant be
incarcerated at an institution in TEXAS, but only
in so far as this recommendation accords with
security classification and space availability.
lla
Appendix B
J The defendant is remanded to the custody of the United
States Marshal.
SUPERVISED RELEASE
Upon release from imprisonment, the defendant shall be
on supervised release for a term of 120 month(s).
The defendant shall report to the probation office in the
district to which the defendant is released within 72 hours of
release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state, or
local crime.
The defendant shall not illegally use or possess a controlled
substance.
For offenses committed on or after September 13, 1994:
The defendant shall refrain from any unlawful
use of a controlled substance. The defendant shall
submit to one drug test within 15 days of release
from imprisonment and at least two periodic drug
tests thereafter, as directed by the probation officer.
* * *~
{x} The defendant shall not possess a firearm as defined in 18
U.S.C. § 921. (Check, if applicable.)
12a
Appendix B
If this judgment imposes a fine or a restitution obligation,
it shall be a condition of supervised release that the defendant
pay any such fine or restitution that remains unpaid at the
commencement of the term of supervised release in accordance
with the Schedule of Payments set forth in the Criminal
Monetary Penalties sheet of this judgment.
The defendant shall comply with the standard conditions
that have been adopted by this court (set forth below). The
defendant shall also comply with the additional conditions on
the attached page (if indicated below). See Special Conditions
of Supervision - Page 4
STANDARD CONDITIONS OF SUPERVISION
1) the defendant shall not leave the judicial district without
the permission of the court or probation officer;
2) the defendant shall report to the probation officer and shall
submit a truthful and complete written report within the
first five days of each month;
3) the defendant shall answer truthfully all inquiries by the
probation officer and follow the instructions of the
probation officer;
4) the defendant shall support his or her dependents and meet
other family responsibilities;
5) the defendant shall work regularly at a lawful occupation
unless excused by the probation officer for schooling,
training, or other acceptable reasons;
-
6)
8)
9)
10)
11)
12)
13)
13a
Appendix B
the defendant shall notify the probation officer ten days
prior to any change in residence or employment;
the defendant shall refrain from excessive use of alcohol:
the defendant shall not frequent places where controlled
substances are illegally sold, used, distributed, or
administered;
the defendant shall not associate with any persons engaged
in criminal activity, and shall not associate with any person
convicted of a felony unless granted permission to do so
by the probation officer;
the defendant shall permit a probation officer to visit him
or her at any time at home or elsewhere and shall permit
confiscation of any contraband observed in plain view of
the probation officer;
the defendant shall notify the probation officer within
seventy-two hours of being arrested or questioned by a law
enforcement officer;
the defendant shall not enter into any agreement to act as
an informer or a special agent of a law enforcement agency
without the permission of the court;
as directed by the probation officer, the defendant shall
notify third parties of risks that may be occasioned by the
defendant’s criminal record or personal history or
characteristics, and shall permit the probation officer to
make such notifications and to confirm the defendant’s
compliance with such notification requirement.
l4a
Appendix B
SPECIAL CONDITIONS OF SUPERVISION
1. The defendant shall provide the probation officer with access
to any requested financial information.
2. The defendant shall not incur new debts or credit charges or
open additional lines of credit charges or open additional
lines of credit without the approval of the probation officer.
3. The defendant shall submit to the search of their person,
property, home and vehicle by a U.S. Probation Officer, or
any other authorized person under the immediate and
personal supervision of the probation officer, without a
search warrant. Failure to submit to a search may be grounds
for revocation. The defendant shall warn any other residents
that the premises may be subject to searches pursuant to the
condition.
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal
monetary penalties in accordance with the schedule of payments
set forth on Sheet 5, Part B.
Assessment
Totals: $ 150.00
* 7*x *
SCHEDULE OF PAYMENTS
Payments shall be applied in the following order: (1)
assessment; (2) restitution; (3) fine principal; (4) cost of
prosecution; (5) interest; (6) penalties
1Sa
Appendix B
Payment of the total fine and other criminal monetary
penalties shall be due as follows:
A & In full immediately; or
* * *
The defendant will receive credit for all payments
previously made toward any criminal monetary penalties
imposed.
* * *
{J The defendant shall forfeit the defendant’s interest in the
following property to the United States:
(SEE ATTACHED SHEET FOR LIST OF PROPERTY)
Unless the court has expressly ordered otherwise in the
special instructions above, if this judgment imposes a period
of imprisonment payment of criminal monetary penalties shall
be due during the period of imprisonment. All criminal
monetary penalty payments, except those payments made
through the Bureau of Prisons’ Inmate Financial Responsibility
Program are to be made as directed by the court, the probation
officer, or the United States attorney.
STATEMENT OF REASONS
The court adopts the factual findings and guideline
application in the presentence report.
* * *
l6a
Appendix B
Guideline Range Determined by the Court:
* * *
Fine waived or below the guideline range because of
inability to pay.
The sentence is within the guideline range, that range
exceeds 24 months, and the sentence is imposed for the
following reason(s):
MANDATORY MINIMUM SENTENCE
appeal rights given
*x ~ *
17a
APPENDIX C — JUDGMENT OF THE UNITED STATES
DISTRICT COURT FOR THE EASTERN DISTRICT OF
CALIFORNIA AGAINST DAVID OLSON DATED AND
FILED JUNE 16, 1997
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
Case Number: CR-F-96-5059-3-REC
UNITED STATES OF AMERICA
VS
DAVID OLSON,
Defendant
DANIEL BACON
906 “N” STREET # 100
FRESNO, CA 93721
JUDGMENT IN A CRIMINAL CASE
(For Offenses Committed on or After November 1, 1987)
THE DEFENDANT:
[X] Was found guilty on Count(s) _ after a plea of not guilty.
18a
Appendix C
Title & Nature of Date Offense Count
Section Offense Concluded Number(s)
21 U.S.C. Conspiracy to 11/94 One
841(a)(1) Possess with Intent to
& 846 Distribute Controlled
Substance
The defendant is sentenced as provided in pages 2 through
6 of this Judgment.
[X] Appeal rights given.
[ ] Bond is ordered exonerated; [X] upon surrender
* * *
It is further ordered that the defendant shall notify the
United States Attorney for this district within 30 days of any
change of name, residence or mailing address until all fines,
restitution, costs, and special assessments imposed by this
Judgment are fully paid.
19a
Appendix C
Defendant's Soc. Sec. JUNE 16, 1997
Number: 451-60-8844 Date of Imposition of Sentence
Defendant's Date of s/ Robert E. Coyle
Birth: 12/23/1939 Signature of Judicial Officer
Defendant's USM ROBERT E. COYLE
No.: 29230-077 U.S. DISTRICT JUDGE
Name and Title of Judicial Officer
[ ] In Custody
6/16/97
Last known mailing Date Signed
address:
HCB 51, BOX 360
STEPHENVILLE,
TX 76401
IMPRISONMENT
The defendant is hereby committed to the custody of the
Bureau of Prisons of the United States to be imprisoned for a
total term of (120) MONTHS.
[X] The Court makes the foliowing recommendations to the
Bureau of Prisons:
The defendant be incarcerated at an institution in
BASTROP, TEXAS, but Only in so far as this
recommendation accords with security classification
and space availability.
*~ * *
20a
Appendix C
[X] The defendant shall surrender for service of sentence at
the institution designated by the Bureau of Prisons, or to
the US Marshal for this district, if no institution has been
designated:
{X] before 2:00 p.m. on AUGUST 11, 1997.
~ ~ *
SUPERVISED RELEASE
Upon release from imprisonment the defendant shall be
on supervised release for a term of (60) MONTHS.
The defendant shall report to the probation office in the
district to which the defendant is released within 72 hours of
release from the custody of the Bureau of Prisons.
The defendant shall not commit another federal, state, or
local crime.
The defendant shall not illegally possess a controlled
substance.
{X] The defendant shall not possess a firearm as defined
in 13 USC 921. (Check, if applicable.)
For offenses committed on or after September 13, 1994:
[X] The defendant shall submit to one drug test within 15
days of release from imprisonment and at least two
periodic drug tests thereafter, as directed by the
probation officer. (Check, if applicable.)
2la
Appendix C
* * *
If this judgment imposes a fine or a restitution obligation,
it shall be a condition of supervised release that the defendant
pay any such fine or restitution that remains unpaid at the
commencement of the term(s) of supervised release in
accordance with the Schedule of Payments set forth in the
Criminal Monetary Penalties sheet of this judgment.
The defendant shall comply with the standard conditions
that have been adopted by this court (set forth below). The
defendant shall also comply with the additional conditions on
the aitached page.
1)
3)
4)
5)
STANDARD CONDITIONS OF SUPERVISION
the defendant shall not leave the judicial district without
the permission of the court or probation officer:
the defendant shall report to the probation officer and shall
submit a truthful and complete written report within the
first five days of each month;
the defendant shall answer truthfully all inquiries by the
probation officer and follow the instructions of the
probation officer;
the defendant shall support his or her dependents and meet
other family responsibilities;
the defendant shall work regularly at a lawful occupation
unless excused by the probation officer for schooling,
training, or other acceptable reasons;
6)
7)
8)
9)
10)
11)
12)
22a
Appendix C
the defendant shall notify the probation officer ten days
prior to any change in residence or employment;
the defendant shall refrain from excessive use of alcohol
and shall not purchase, possess, use, distribute, or
administer any narcotic or other controlled substance, or
any paraphernalia related to such substances, except as
prescribed by a physician;
the defendant shall not frequent places where controlled
substances are illegally sold, used, distributed or
administered;
the defendant shall not associate with any persons engaged
in criminal activity, and shall not associate with any person
convicted of a felony unless granted permission to do so
by the probation officer;
the defendant shall permit a probation officer to visit him
or her at any time at home or elsewhere and shall permit
confiscation of any contraband observed in plain view of
the probation officer;
the defendant shall notify the probation officer within
seventy-two hours of being arrested or questioned by a law
enforcement officer;
the defendant shall not enter into any agreement to act as
an informer or a special agent of a law enforcement agency
without the permission of the court;
13) as directed by the probation officer, the defendant shall
notify third parties of risks that may be occasioned by the
1)
2)
3)
23a
Appendix C
defendant’s criminal record or personal history or
characteristics, and shall permit the probation officer to
make such notifications and to confirm the defendant’s
compliance with such notification requirement.
ADDITIONAL SUPERVISION TERMS
Defendant shall submit to the search of his/her person,
property, home and vehicle by a U.S. Probation Officer,
or any other authorized person under the immediate and
personal supervision of the probation officer, without a
search warrant. Failure to submit to a search may be
grounds for revocation. Defendant shall warn any other
residents that the premises may be subject to searches
pursuant to this condition.
Defendant shall provide the probation officer with access
to any requested financial information.
Defendant shall not incur new debts or credit charges or
open additional lines of credit without the approval of the
probation officer unless the defendant is in compliance with
the installment payment schedule.
CRIMINAL MONETARY PENALTIES
The defendant shall pay the following total criminal monetary
penalties as set forth below:
ASSESSMENT
Amount: $50.00 Payable:
[X] in full, immediately
24a
Appendix C
« *” *
The defendant shall pay interest on any fine of more than
$2,500, unless the fine is paid in full before the fifteenth day
after the date of judgment, pursuant to 18 U.S.C. 3612(f). All
of the payment options may be subject to penalties for defauit
and delinquency pursuant to 18 U.S.C. 3612(g).
* * *
Unless the court has expressly ordered otherwise in the
special instructions above, if this judgment imposes a period
of imprisonment, payment of criminal monetary penalties shall
be due during the period of imprisonment.
All criminal monetary penalty payments are to be made as
directed by the court, the probation officer, or the United States
Attorney.
STATEMENT OF REASONS
[X] The court adopts the factual findings and guideline
application in the presentence report.
* * *
Guideline Range Determined by the court:
Total Offense Level: 16
Criminal History Category: 11
Imprisonment Range: 24 to 30 months
Supervised Release Range: 5 YEARS to LIFE
Fine Range: $5,000 to $4 MILLION
25a
Appendix C
[X] Fine waived or below the guideline range because of
inability to pay.
[X] The sentence departs from the guideline range:
{[X] for the following specific reason(s):
MANDATORY MINIMUM
26a
APPENDIX D — PORTIONS OF TRIAL TRANSCRIPT
CONTAINING RULINGS AND ORDERS OF THE
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF CALIFORNIA
DATED MARCH 21, 1997
[543] Fresno, California } March 21, 1997
8:57 a.m.
(The following proceedings were held outside the presence
of the jury:)
THE COURT: All right, the record reflects that we’re in
session without the presence of the jury. The Court wants to go
over a couple of matters to where we are in this matter.
The Court on March 12th, issued its order relating to the
— the transactions and the transcript, and on page 26, line 12
of the order, stated, “However, in the court’s conclusion after
reviewing the transcripts and police reports provided to the
Court by the United States in camera, that contrary to the
representations made by the defendant in opposition to this
motion at oral argument, these transcripts and reports did not
tend to exculpate either Underwood or Olson in this transaction
and do not establish that Nunez was the money man in this
transaction. It is clear to the Court that the discussion involved
other transactions. Consequently, the Court concludes that
evidence concerning dealings with Romine or Jesse James may
have had with Nunez or other drug distributors is not probative,
will tend to confuse the jury and involve collateral matters.”
[544] No motion to reconsider that order was filed.
In opening statement, Mr. Tandy stated, and I have had a
rough draft and reviewed the transcript and referring to the
27a
Appendix D
wired — transcription, Ernest Romine will tell you that the
money man is from Texas — or he is from Texas and Ernest
Romine responded to this very question, without any hesitation
with one word — with one word, he says “Frank.” Nothing
could be more clear than that. That is not what the transcript
states.
Upon being — upon examining officer McMillen, he states
— and on that tape, he was very specific about who the money
man was. “Was that not true by naming Frank?
“Answer: No, sir.
“Question: And you do not recall that at any point that
Mr. James asked the specific question as per your instructions
about who is the money man? And that Mr. Romine said that
very one five letter word, ‘Frank.’
“No, sir, that did not occur.”
So contrary to the Court’s order, and once again,
misrepresenting what’s in the transcript, we continue on the
subject. Whether the Court was right or wrong, there’s still the
misrepresentations were blatantly made.
This morning I received two new motions, one from the
Government and one from Mr. Bacon. One, the Government’s
motion is a supplemental trial brief re [545] impeachment of
Ernest Romine. It is not clear to me from that motion as to
whether the Government now is taking the position that the
other questions may be asked and that only the basis for the
motion that is filed this morning on the irrelevant matters will
be left out. In any event, the Court received it just before it got
on the bench.
28a
Appendix D
Mr. Bacon has filed a motion to allow defense to play
tape-recorded meeting. I am assuming that that is a motion for
reconsideration of the Court’s prior ruling.
MR. BACON: Your Honor, in a sense, even considering
the Court’s prior ruling, I think there is — I want to make sure
the record is clear. There was a motion for reconsideration filed
shortly before the trial started. And I don’t know — that’s the
one | never got an order for. It was tied in with the continuance
motion. There was a written motion filed, but I presume that
was denied.
THE COURT: Well, if you will recall, the Court didn’t
recall — when we discussed that before and before this trial
started, I said it is denied.
MR. BACON: Okay. I’m not disputing that, Your Honor.
This is being offered, however, Your Honor, as statements of a
coconspirator made during the conspiracy and in furtherance
of the conspiracy. And I don’t think there’s been a court order
that this statement made by Jesse James cannot be heard by the
jury. And that’s why I wanted to....
* * *
[608] have to search through it, I'll just stop it, because what
they want to redact is at the end. I’ll just stop it at that point
and won’t even play the rest until I get a redacted portion, Your
Honor.
MS. SERVATIUS: If counsel would like, I think we have
a tape player on the counter. If you want to advance the portion,
do it on the counter and stop it and use the counter to advance
to the next admissible portion.
29a
Appendix D
MR. BACON: We could do that. Whatever is easy.
THE COURT: However you work it out. The Court’s in
recess.
MR. TANDY: Judge, we would like to renew — for
defendant Underwood, we would like to ask for the redacted
portion of the Jencks material also since he has now testified
for the record purposes, and also we’d like to renew our
objection about the entire transcript coming in. I know the
Court’s ruling, but I want to for the record’s sake.
MR. BACON: And we join in that, the redacted Jencks
material.
MS. SERVATIUS: Your Honor, the Jencks Act provides
the statements of the witness while he’s on direct have to be
provided, that areas that counsel were permitted to go into
generally — that the Court ruled upon shouldn’t immediate
need that issue to be readdressed.
[609] MR. BACON: I think I just need on the record, Your
Honor, state that I think Jencks provides that anything that’s
relevant to the subject matter of his testimony, and I think those
redacted portions would be relevant to the subject matter of his
testimony and I would submit it.
THE COURT: The Court denies the request. I have not
been furnished anything of the motion and nothing to refer
anything at all to make me change my mind.
MR. BACON: Your Honor, the Court has all of the
redacted Jencks material, though. Just for the record, I just want
to make sure the Court has it.
30a
Appendix D
THE COURT: All right, court’s in recess.
(Recess.)
THE COURT: All right, the record will reflect that the
jury is present and accounted for and that the parties are ready.
Miss Servatius, I understand you wish to call some
witnesses out of order to get them on their way.
MS.SERVATIUS: Yes, Your Honor, thank you. The first
one will be Joe Bates.
JIM BATES,
produced as a witness on behaif of the Government, having
been first duly sworn, testified as follows:
THE CLERK: Take the witness stand right up here and
give us your full name, please... .
* * *
[775] Defendant Underwood’s Closing Argument
Another question, Ernest Romine, he’s not in jail. Frank’s
not in jail. All these people that I heard about, Luis, Lupe, Rich,
Bobbie, I didn’t hear anything about them being in jail. Frank,
I heard nothing about Frank being in jail, all these people that
are out here doing these things.
Let’s move on. Let’s go to Waco. Waco, Texas.
3la
Appendix D
THE COURT: Excuse me, Mr. Tandy. If you’re going to
change subjects, we’ll take our lunch hour at this time. Ladies
and gentlemen, we’ll take our lunch recess at this time. We’ll
stand in recess until 1:30. Please remember my admonition to
you not to speak about this case amongst yourselves or with
anyone else until it’s finally submitted to you. Have a nice lunch
hour and we’ll see you at 1:30. Thank you.
(The jury was excused.)
THE COURT: All right, the record will reflect we’re in
session without the presence of the jury. You may be seated.
I apologize. A couple of things. We gota little bit disjointed
between last Friday and this morning. I don’t know whether
we put it on the record or not, the fact that the Court did deny
your motions. I assume there’s no misunderstanding about that,
but I want to make sure it was on the record. Your Rule 29
motions were denied. The Court [776] on the venue or the
location takes judicial notice of the fact that both Rosamond
and Bakersfield and other areas that were mentioned are in the
Eastern District of California.
And on the question of the multiple conspiracies, the
Court’s ruling is in line with its instructions that we discussed.
So are there any questions about any of those? I’m sorry, we
didn’t.
MR. BACON: No.
THE COURT: And then the —
MR. HOMOLA: No, Your Honor.
32a
Appendix D
THE COURT: The other thing that counsel advised the
Court, they weren’t going to call anybody. I didn’t ask you
specifically if you rested. | assumed that’s what you intended
when you said —
MR. TANDY: Yes.
MR. BACON: Yes.
THE COURT: All mght, I just wanted the record to be
straight. I can’t remember if we were on the record or off the
record. I just want to make sure those were on the record.
Anything else we need —
MR. TANDY: Judge, this just happens to be my bag that |
carry. Just happens to be black.
MR. HOMOLA: Don’t say that in front of McMillen.
THE COURT: That’s why I wanted to make sure it had
nothing to do with the case, or you would probably lose ....
* * *
33a
APPENDIX E — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DENYING PETITION FOR REHEARING BY
WARREN LEE UNDERWOOD DATED AND
FILED AUGUST 21, 1998
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 97-10344
D.C. No. CR-96-05059-REC
UNITED STATES OF AMERICA,
Piaintiff-Appellee,
WARREN LEE UNDERWOOD,
Defendant-Appellant.
ORDER
Before: WALLACE, T.G. NELSON, and KLEINFELD,
Circuit Judges.
Appellant’s petition for rehearing is DENIED.
34a
APPENDIX F — ORDER OF THE UNITED STATES
COURT OF APPEALS FOR THE NINTH CIRCUIT
DENYING PETITION FOR REHEARING BY DAVID
OLSON DATED AND FILED SEPTEMBER 28, 1998
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
No. 97-1029]
D.C. No. CR-96-05059-REC
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
DAVID OLSON,
Defendant-Appellant.
ORDER
Before: WALLACE, T.G. NELSON, and KLEINFELD,
Circuit Judges.
Judge Wallace and Judge T.G. Nelson have voted to deny
appellant’s petition for rehearing. Judge Kleinfeld has voted to
grant the petition for rehearing. 1 ne panel has voted to reject
the suggestion for rehearing en banc.
The full court has been advised of the suggestion for
rehearing en banc and no judge of the court has requested a
vote on whether to rehear the matter en banc. Fed. R. App. P.
35.
35a
Appendix F
The petition for rehearing is denied and the suggestion for
rehearing en banc is rejected.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.