571 F2d 1121 United States v. H Nixon

571 F.2d 1121

UNITED STATES of America, Plaintiff-Appellee,
v.
David H. NIXON, Jr., Defendant-Appellant.

No. 75-3820.

United States Court of Appeals,
Ninth Circuit.

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.

Before HUFSTEDLER and CHOY, Circuit Judges, and SMITH,* District Judge.

PER CURIAM.

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1

The Government's petition for rehearing is granted. The opinions heretofore filed are withdrawn. In their stead, the following per curiam opinion is substituted:

2

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.

3

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.)

4

The motion to suppress the inculpatory statements should have been granted.

5

REVERSED.

*

Honorable Russell E. Smith, Chief Judge, United States District Court, District of Montana, sitting by designation