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469 F2d 688 United States v. Welp

469 F.2d 688

UNITED STATES of America, Plaintiff-Appellee,
v.
Jack Damian WELP, Defendant-Appellant.

No. 72-2308.

United States Court of Appeals,
Ninth Circuit.

Oct. 26, 1972.

Peter L. Powers, Weatherford, Thompson, Horton & Jordan P. C., Albany, Or., for defendant-appellee Citizens Valley Bank.

Sidney I. Lezak, U. S. Atty., Portland, Or., for defendant-appellee United States of America.

Jack Damian Welp, pro per.

Before HAMLIN and DUNIWAY, Circuit Judges, and JAMESON, District Judge.*

PER CURIAM:

1

A search incident to an arrest for robbery of the Citizens Valley Bank, Shedd, Oregon, revealed $369.00 cash on Welp's immediate person. Welp was subsequently tried and convicted of that bank robbery, and we affirmed. United States v. Welp, 446 F.2d 867 (9th Cir. 1971).

2

The money in question was turned over to the said bank. Appellant filed a petition with the District Court seeking the return of the money to him. After a hearing, the District Court dismissed appellant's petition, having found that the $369.00 was a product of the bank robery, and belonged to the bank. Welp appeals from this determination.

3

Questions of fact determined by the trial judge must be upheld on review unless "clearly erroneous." Campbell v. United States, 373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Page, 302 F.2d 81, 85 (9th Cir. 1962). A "definite and firm conviction" that a mistake was committed below is a prerequisite to appellate reversal. United States v. United States Gypsum Co., 333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1940).

4

Applying these standards we hold that under the facts of this case the judgment must be affirmed.

5

It is so ordered.

*

Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation