571 F2d 512 United States v. Flores-Calvillo

571 F.2d 512

UNITED STATES of America, Plaintiff-Appellee,
v.
Roselia FLORES-CALVILLO, Defendant-Appellant.

No. 75-3785.

United States Court of Appeals,
Ninth Circuit.

March 6, 1978.

Glenn S. Warren (argued) of Fed. Defenders of San Diego, Inc., San Diego, Cal., for defendant-appellant.

Steve Peterson, Asst. U. S. Atty. (argued), San Diego, Cal., for plaintiff-appellee.

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

The Government's petition for rehearing is granted. The opinions heretofore filed are ordered withdrawn. Action upon the Government's petition for rehearing was deferred until the decision of United States v. Rodriguez-Gastelum, 569 F.2d 482 (9th Cir. en banc 1978). The following per curiam opinion is substituted:

The conviction is vacated and the cause is remanded to the district court for the purpose of findings by the district court on the issues: (1) Did the Government carry its heavy burden of proving that appellant knowingly and intelligently waived her privilege against self-incrimination and her right to counsel, and (2) her right to silence? Within its discretion, the district court may decide both issues on the record heretofore made, or, it may order a further evidentiary hearing directed to those issues.

VACATED AND REMANDED.

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1

HUFSTEDLER, Circuit Judge, concurring specially:

2

I adhere to the views that I expressed dissenting in United States v. Rodriguez-Gastelum, supra. I concur with the majority under the compulsion of United States v. Rodriguez-Gastelum, supra.

*

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