Opinion
No. 75-3820.
March 9, 1978.
James P. F. Egbert (argued), Tucson, Ariz., for defendant-appellant.
Ron Jennings, Asst. U.S. Atty. (argued), Tucson, Ariz., for plaintiff-appellee.
Appeal from the United States District Court for the District of Arizona.
The Government's petition for rehearing is granted. The opinions heretofore filed are withdrawn. In their stead, the following per curiam opinion is substituted:
Upon the authority of United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. en banc No. 76-2241, 1978) [Slip Op'n p. 309, Jan. 30, 1978], the questioning of a suspect in custody can be resumed if the Government bears its heavy burden of proof that the suspect effectively waived his prior request for assistance of counsel.
The Government failed to bear its burden of proving waiver of counsel in this case. The interrogation followed hard on the heels of the demand for counsel. Nixon's right under those circumstances to have questioning cease was not scrupulously honored. ( Michigan v. Mosley, 423 U.S. 96, 96 S.Ct. 321, 46 L.Ed.2d 313 (1976); United States v. Rodriguez-Gastelum, supra.)
The motion to suppress the inculpatory statements should have been granted.
REVERSED.