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806 F2d 853 United States v. Poole

806 F.2d 853

UNITED STATES of America, Plaintiff/Appellee,
v.
Robert James POOLE, Respondent/Appellant.

CA No. 84-5195.

United States Court of Appeals,
Ninth Circuit.

Argued and Submitted Aug. 5, 1985.
Decided July 14, 1986.
Order for Publication Dec. 17, 1986.

1

Duane J. Deskins, Asst. U.S. Atty., Los Angeles, Cal., for plaintiff/appellee.

2

Brad Brian, Los Angeles, Cal., for respondent/appellant.

3

Prior Report: 794 F.2d 462.

4

Before SKOPIL and CANBY, Circuit Judges and SOLOMON* District Judge.

ORDER

5

The panel as constituted in the above case has voted to deny the petition for rehearing and reject the suggestion for rehearing en banc.

6

The panel has voted to amend the opinion as follows. Delete the body of the section entitled "A. Standard of Review" on page 465 of 794 F.2d, and substitute the following:

7

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).

8

In the 5th and 6th lines from the bottom of col. 1, page 467, delete the words "then applicable."

9

In the first full paragraph, col. 2, page 467, 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."

10

Add a citation to United States v. Perez, 776 F.2d 797, 799 (9th Cir.1986), on page 466, col. 1, 15 lines from the bottom, after "see also " and before the citation to United States v. Booth.

11

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).

12

The petition for rehearing is denied and the suggestion for rehearing en banc is rejected.

*

The Honorable Gus J. Solomon, Senior United States District Judge for the District of Oregon, sitting by designation