Summary
holding that the determination of "custodial interrogation is essentially factual," and thus subject to "clearly erroneous" review
Summary of this case from U.S. v. FazioOpinion
CA No. 84-5195.
Argued and Submitted August 5, 1985.
Decided July 14, 1986. Order for Publication December 17, 1986.
Duane J. Deskins, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee.
Brad Brian, Los Angeles, Cal., for respondent/appellant.
ORDER
The panel as constituted in the above case has voted to deny the petition for rehearing and reject the suggestion for rehearing en banc.
The panel has voted to amend the opinion as follows. Delete the body of the section entitled "A. Standard of Review" on page 7 of the slip opinion, and substitute the following:
The determination whether a defendant was subjected to custodial interrogation is essentially factual, and is reviewable under the "clearly erroneous" standard. United States v. Wauneka, 770 F.2d 1434, 1438 (9th Cir. 1985) (citing United States v. McConney, 728 F.2d 1195 (9th Cir.), cert. denied, 469 U.S. 824, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984)); United States v. Combs, 762 F.2d 1343, 1348 (9th Cir. 1985).
In the first line of page 11 of the slip opinion, delete the words "then applicable."
In the middle paragraph of page 11, change the next-to-last sentence to read: "We conclude that the district court clearly erred in ruling that the questioning about name, date of birth and place of birth did not constitute interrogation."
Add a citation to United States v. Perez, 776 F.2d 797, 799 (9th Cir. 1986), on page 8, six lines from the bottom, after "see also" and before the citation to United States v. Booth.
The full court has been advised of the suggestion of rehearing en banc, and a majority of the judges of the court has voted against it. Fed.R.App.P. 35(b).
The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.