*1 - property- King-vision deprived of its judg- judge vacate a can held that district Bar judgment against Paradise interest in its 60(b) mature where “after Rule ment under heard. opportunity or notice without he was re-reading the record judgment and judgment in this man- Vacating default mistake,” had made a apprehensive that he pro- Kingvision of due deprived ner therefore its initiate this on “[t]he and that vacate the amend- of law. therefore cess Celebrezze, v. McDowell own motion.” Kingvision judgment, remand so that ed and Cir.1962). opportunity may appropriate notice either rule allow for of The words of the regarding such reduction to be heard construction, conclude and we may judgment district court as the default position makes bet- and Fifth Circuit Fourth appropriate on of inadvertence deem account The traditional defini- practical sense. ter or mistake. that the court acts of sponte is tion of sua Dic- Law or motion.’’ Black’s “its own will Conclusion. (6th ed.1990) added), (emphasis tionary 1424 Pub, and RE- In we REVERSE Sports 60(b) in Rule do “on motion” the words so entry judgment in favor of of MAND sponte repairs of sua plainly exclude appropriate in amount. In Kingvision an clerks and inadvertence. Court mistakes Alice, judg- the amended Lake we VACATE judgment papers commonly put default may that both sides ment and REMAND so cursory may sign judge with piles a any appropriate amount be heard on nothing Plain- is contested. perusal, because judgment. in the reduction may given pa- attorneys also have tiffs’ In Chuy’s Playroom, In we AFFIRM. cursory perusal, collection pers only because Bar,, we the amended Paradise VACATE with a volume basis is often done on work Kingvision judgment and REMAND so parale- on clerical considerable reliance reduction be heard on extent in, slip easily can gal Mistakes n staff. judgment. in the injustice. A has no sub- great creditor work Kingvision are awarded in favor Costs interest, ordinary reliance stantial Pub, Bar, Lake Alice and Paradise Sports judgment. case, an uncollected default are to either side Bar. No costs awarded says that are to be con- the rules Rule Playroom. Chuy’s “just” determination of to secure strued assigned to a different The cases shall be every is better served action. Justice judge on remand. letting judge repair mistakes default old, days in the judgments more than ten judge
fortunate where the. circumstances to -notice
happens them. not the end of the case.
But that is the correction problem There is a because America, STATES of blue, UNITED with no notice came out of Plaintiff-Appellee, Kingvision opportunity to be heard on the judgment property, A so tak reduction. process ing away requires due of law. it Cf. BURDEAU, Herbert Louis Atmo In re Consolidated Defendant-Appellant. Litigation, spheric Testing No. 97-30388. Cir.1987) (a yet of action not cause species property judgment is a Appeals, reduced United States Court protected by Amendment Due Pro the Fifth Ninth Circuit. Clause). process generally Due re cess 7, 1998. Argued and Submitted Oct. quires opportunity heard notice and to be 9, 1999. Decided Feb. governmental deprivation prop of a before a erty Growney Equip, interest. Tom Shel
ley Development, Irr.
Cir.1987).
REINHARDT, Judge: Circuit Burdeau, Ameri- a Native Louis Herbert can, he commit- visibly intoxicated when located robbery of a store armed ted an Indian Reservation the Blackfeet within *3 Probably for his crime. apprehended was clearly would es- realizing that the evidence act, the Bur- he had committed tablish that agreement a conditional deau entered ten-year maxi- to a limited his that sentence however, minute, he the mum. At last plea. By changed mind withdrew his and opportunity doing, preserved his he so permitted to raise a argue that he should provide appeared that legal defense that, only hope avoiding conviction: be- of intoxicated, he could not he cause robbery by the required the intent formed subsequent pretrial pro- During statute. however, rejected ceedings, district motion argument granted and the state’s Following that de- preclude the defense. cision, realistic de- which foreclosed offer, Burdeau fense that Burdeau guilty under the sought to reinstate his prosecutor plea agreement. The ob- original request, jected, and the the court denied two-day a After prosecution commenced. robbery trial, and Burdeau was convicted felony, of a gun in the commission use of a prison. and sentenced to months to withdraw initial Burdeau’s decision in all likelihood plea, decision that appreciate failure to based on his counsel’s De- Donovan, Federal Daniel Assistant required type intent for Montana, fender, Falls, the defen- Great conviction, him will thus cost seven one- dant-appellant. prison. Because the half additional Harper, Lori A. Assistant legal commit error at court did not Montana, Falls, for the Attorney, Great we are any stage proceedings, these with- plaintiff-appellee. anything other than affirm power to do out note, however, Burdeau’s conviction. year addition to the seven and one-half sentence, serves to which almost appear prison, time in does not double his penalty for his proportionate fair or be a par- question whether a explore effort REINHARDT, BOOCHEVER, Before: legally available. We ticular defense was GRABER, Judges. Circuit encourage the States Attor- United therefore authority utilizing its ney’s office to consider REINHARDT; Procedure Federal Rule Criminal Partial under Opinion by Judge 48(a) the counts one of by Judge to move to dismiss Dissent Concurrence and Partial that the sentence re- conviction so GRABER. gun, that is consistent with the ceives will be one and none of the finger- identifiable objectives purposes sentencing of our prints on countertop matched Burdeau’s. statutes. counts, Burdeau was felony indicted on two BACKGROUND robbery and use of a during firearm commis- Sep-
This case arises out of an incident on sion of a crime of violence. He filed a num- obviously tember when intoxicat- pretrial motions, ber of including a motion to grocery ed Burdeau robbed a store in St. suppress pretrial identification and a mo- Burdeau, Mary, Montana. a member of the lineup. tion for an in-eourt The motions tribe, Mary’s Blackfeet entered the Park St. were all denied. Grocery Cafe and and told one of the clerks Trial was set for June aAt buy Upon that he wanted to some bullets. pretrial 23,1997, conference held on June *4 being carry informed that the store did parties disagreement discussed their as to bullets, he swore and slammed his hand on robbery whether specific was a crime of glass countertop. approached the He then general Only intent. a defense of diminished request repeated the other clerk and the capacity specific to a intent crime offered answer, Upon receiving the bullets. same he any practical Burdeau opportunity to avoid requested cigarettes. The clerk him asked conviction. The court parties advised the to replied by what kind he wanted. Burdeau file an in limine motion before trial. asking money how much was the cash register. responded motion, The clerk in- filing however, this Instead of the Bur- business; formation was none of Burdeau’s deau plea entered into a agree- conditional displayed gun Burdeau then a and told the ment which limited his sentence to a maxi- give money. clerk to him the The clerk years mum of guilty plea ten return for his approximately handed over $700 robbery $800. to the gun count and dismissal of the Burdeau, making apparent effort to hide accepted Then, count. The plea. court the destination, Kip’s walked next door to' September 24, 1997, judge the a held ’ Beer Garden. sentencing hearing. initially He indicated by he was not inclined to abide the Kip’s, at Once Burdeau asked a friend for limitation of the sentence to ten time, By a ride home. the clerks had right instructed Burdeau that he had the reported robbery, police the and a tribal plea. withdraw his After further discussion officer followed the car which Burdeau of the matter with the United States Attor- nearby rode to ranch located on the reser- however, ney, accept the court decided to car, vation. As he followed the the tribal plea’s conditional sentence recommendation. occupants officer observed its throw a Bud- Although judge longer was therefore no weiser out box the car window. After the obligated opportunity to offer Burdeau the ranch, police car arrived at the the tribal plea, withdraw his he asked him whether he arrested Burdeau and a few other individu- spoke wanted to do so. Burdeau with his als, nearby and searched the car and the members, attorney, family and others who They area. discovered cash ear inside the present hearing, were at the and then stated box, and in the Budweiser which was found plea. that he did want to withdraw his The along private road that to the ranch. led granted request. day, police The next also recovered a .38 along private caliber revolver road and gave Burdeau then formal notice that he more cash under a rock next to the ranch. planned capacity/intoxi- to offer a diminished The two store govern- clerks both identified Bur- cation defense. On October array. trial, deau a photographic objecting At ment filed motion limine to the clothing granted one clerk also identified the that had defense. The court that motion on clothing been taken from Burdeau ruling robbery as the that the crime of October required only general that the robber had worn. Other witnesses intent and that linked Burdeau to the box and Budweiser defense was therefore unavailable. Burdeau gun guilty discovered near the ranch. Howev- then made a motion to reinstate his er, fingerprints agreement. no identifiable were found on under the conditional applying holding also our as objected the court de- misread prosecution (see (Real, J., Lilly, to trial at 1264 proceeded § 2111 The case the motion. nied dissenting)) change the fact that
on November
does not
much
one.
holding
in fact a
narrower
jury returned a verdict
days, the
After two
The dis-
both counts.
convicting Burdeau on
Lilly
does not resolve
therefore
While
months for
him to 160
judge sentenced
trict
compel us to inter
question, two factors
gun in
for use of a
robbery
months
and 60
requiring
general
§
intent.
pret
2111 as
felony, the sentences to
of a
the commission
super- First,
contain
consecutively,
years of
a statute does not
“[w]hen
and three
run
intent,
appeal
general
This
followed.
is ordinari
intent
vised release.
reference
Martinez, 49
ly implied.” United States
REQUIREMENT
INTENT
(9th Cir.1995) (citations
1398, 1401
omit
of chal
a number
raises
ted).
presumption
strengthened
is
This
Primarily, in reli
lenges to his conviction.
“feloniously,” which
the fact that
the term
Lilly,
evidence is discovered was agree hue, We do not that the facial dark In the one upheld expression, placement ease which this court the photograph testimony suggested exclusion of a witness’s on the that the witnesses should choose evidence, fingerprint absence of there photograph. was no Burdeau’s Such insubstantial expert testimony need for explain why photo- differences between the defendant’s fingerprints get- would not graph be found on the and the others do not in themselves vehicle, away jurors because the impermissible suggestion could infer create an that the might on their that own the car have been defendant is the offender. See United States (9th wiped following 924, Cir.1992) Carbajal, down the crime. See United v. 956 F.2d 929 Booth, 1231, v. (array States 669 F.2d impermissibly suggestive 1240 not when de- Cir.1981). Christophe, See also photograph 833 F.2d at fendant’s was one in which basis). (distinguishing By 1300 wig face); Booth on this individual wore and had bruises contrast, case, Johnson, 1065, it would be more diffi- United States v. 820 F.2d (9th Cir.1987) jurors why cult for array to understand Burdeau’s (photographic 1073 fingerprints glass impermissibly suggestive would not be found on the not when defen- countertop others); when he had photograph slammed his hand dant’s was hazier than opportunity Sambrano, down on it and had had no to United States v. 505 F.2d (9th Cir.1974) wipe it important off. There were other (photographic array differences between photograph Booth and the instant which defendant’s was darker placed strong emphasis closing Defense counsel on the statements. fingerprint opening lack of evidence in both his permit a power in its sugges- court is limited impermissibly and clearer plea that has al- to withdraw a defendant tive). between The differences accepted. Although ready entered and been array in five in the the other
photograph and 11(e)(4) that mandates Fed.R.Crim.P. witnesses should way implied no the defendant to with- district court allow perpetrator. identify him as rejects a condition- plea his if the court draw also had no obli court The district preclude the plea agreement, it does not al lineup, in-court since arrange an gation to doing other circum- so under sugges dissipate the need to there was no 32(e) fact, specifi- In Fed.R.Crim.P. stances. identification. Cer impact of the earlier tive permit a cally allows the court to defendant agreement with Burdeau tainly, we are just “any fair and withdraw a procedure identification that an in-court yet long the sentence has not reason” as as defendant, points out the witness which v. imposed. Arid while United States been counsel, is the table with seated at who is Partida-Parra, 632-33 of minimal value. inherently suggestive and court, Cir.1988), held that a on the motion of Williams, v. States See also United State, agreement it not vacate a Cir.1970) (explaining that the imposed already accepted, that decision has suggests that wit physical setting of a trial limitation when it is the defendant similar defendant). there identify We ness should request. has made the who attempt to utilize think it advisable fore power within its to allow court therefore was prejudicial minimize this procedures which plea. his the defendant to withdraw “[tjhere Nonetheless, no constitu is effect. argument, Turning to the second line-up or to an in-court tional entitlement authority acknowledges sup that no lessening sug method of particular other court was ports his claim that the district gestiveness of an in-court identification-” request obligated grant to reinstate Domina, United States capped plea agreement, which the sen (9th Cir.1986). In years, that he could reenter tence at ten so (9th Cir.1997), we Lumitap, F.3d 81 agreement. He guilty plea under that commented, long the witness has “[a]s as that, argues because his decision to instead wholly un is independent recollection plea was on a mistaken withdraw his based misconduct, an in-court police tainted law, governing the dis interpretation of the Id. at 85 n. 4. permissible.” identification equitable have exercised its trict court should array did photographic conclude that the *7 agreement.2 powers It to reinstate Bur- identification not taint the clerks’ to us that such an action would is not clear had the Although court deau. the district power, the district court’s have been within lineup, it in-court employ discretion to an government refused to offer the because any obligation to do so. was not under However, bargain at later date. same this question, in we need not reach this because THE PLEA OF REINSTATEMENT event, required any the district court is not AGREEMENT in equitable powers its the man to exercise the district Finally, argues that Moreover, suggested by ner the defendant. errors, when it allowed court two one made the courts of neither the district courts nor accept- plea after it had him to his withdraw authority appeals to insist that sen has another, later, it ed when agreement tences be fair. plea agree- original refused to reinstate the ment. CONCLUSION argument, le-
Turning Having first concluded that the defendant’s to Burdeau’s unavailing, again ex- gal arguments are we authority suggests to us that a district counsel, misrepresented the appeal if the assurance on this also states that brief law, governing then Burdeau would be state of the advised” that his witnesses he "was voluntary assistance of counsel. testify support have a claim of ineffective to in available properly specify a raised in collateral Such claim is defense. He does not who intoxication fact, proceedings. of this but if it was his own assured him
359 States, 22, 25, in press 31, our concern over the result this case. naldi v. United 434 U.S. 98 only possible 81, (1977) defense to Burdeau had one (holding S.Ct. L.Ed.2d 207 voluntary crime: intoxication. He exer- the district court by abused its discretion right pre-trial 48(a) to seek a determina- cised refusing grant to Rule motion to dis- tion whether this defense would be available though miss indictment even defendant had argument, government him. oral to At already sentenced); been convicted and availability admitted that the of the defense Gonzalez, 459, United States 58 F.3d until was not clear to either side the district (9th Cir.1995) (same).3 government ruling. issued its could make any such a motion at time before spread by this court’s mandate is issued and years If ten was a fair sentence for government the district court.4 If the were initially, appears Burdeau’s crime then there gun count, to dismiss the Burdeau’s sentence no valid to an to be reason add extra seven by years. urge be reduced five prison in and one-half because of his Attorney making to consider pre-trial ruling regarding desire to obtain a motion, such a in view the unusual facts of potential legal government’s defense. The severely this case and the unfairness of so justification only for its refusal to reinstate increasing the sentence of an individual be- expend offer it its is that was forced to sought clarify cause he to legal an unclear required prepare the time and resources standard. We will withhold issuance of the for trial a second time after the defendant period sixty days.5 n withdrewhis mandate for a guilty plea. This does seem adequate in to us reason this case AFFIRMED. doubling
for almost
his sentence.
GRABER,
Judge, concurring
Circuit
Under Federal Rule of Criminal Procedure
part
dissenting
part:
48(a),
government
power
has the
to move
I
judg-
to dismiss
count of the indictment as
concur
the decision to affirm the
long
appeal
pending
as the defendant’s
and ment of
majority’s
conviction and
anal-
ysis leading
holding.
the decision is therefore not final. See Ri-
to that
sentencing
3. The
case in which this court
held that
has
manner
in this case...
.
in
[W]e
48(a)
Hirabaya
untimely
attorneys
play
a Rule
motion was
vite Government
role
similar
States,
591,
helping
guilty pleas
v. United
828 F.2d
ski
607-08
ensure
indeed
Cir.1987),
defendants.”);
appellate proceedings
represent
intelligent
by
in which the
choices
Madkour,
234,
forty years
had concluded over
earlier.
United States v.
F.2d
239-40
(2d Cir.1991) ("The
judge
was troubled
compelled
the harsh sentence that he
4. See Calderon v. United States District Court for
troubled,
impose....
Cir.1997),
We too are
but unfortu
C.D.Cal.,
n. 2
nately,
power
disregard
denied,
have no
the clear
-U.S.-,
118 S.Ct.
cert.
congress,
mandate of
however ill-advised we
(1998),
decisions (2) personal to include a PARTY THE UNITED sixty days, OF for FORM date AMERICA; ’96, Inc.; the outcome of the Perot of OF the wisdom STATES view of Committee, Inc.; (3) Branch the Executive Reform case, advise Perot Reform California; Place, Party to exercise its dis- Plain how of John government about tiffs-Appellants, cretion. points, I two to the first respect
With job to decide the the court’s believe that COMMIT NATIONAL DEMOCRATIC in the that come presented cases legal issues TEE; ’96 Commit General Clinton/Gore correctly, prompt- it, carefully, before as Primary, Inc.; tee; Re ’96 Clinton/Gore By delaying of the issuance ly possible. as Committee; publican Dole For National neglects responsi- mandate, majority our President, Inc.; State Central Commit majori- promptly. The bility to decide cases Party; Democratic tee of the California delay ground that it justifies ty Republi of the Central Committee State in this the result case” “concern over has a Party; Federal Election Commis can 368-59), majori- which to the (majority pp. at ’96, Defendants-Appel sion; Dole/Kemp (majori- a fair” one appear to be ty “does not lees. 364-55). judges, in our deci- But ty pp. at No. 98-15443. personal our roles, are asked sional the results cases.1 preferences about Appeals, United States Court Ninth Circuit. judicial point, re- respect to the last With judicial indepen- lifeblood of straint is the Argued and Submitted Nov. 1998. pro- vigilant to court has been dence. This Decided Feb. judicial branch tect the work of the gov- encroachment the other branches right to And court has been
ernment. line between our
be so. When we cross the branches, I believe as
branch and the other here, begin to majority has we ourselves separation powers.
undermine the reasons, join in I cannot
For these majority’s of the
introduction and conclusion
opinion. *9 stay try majority points earlier cases those did the court mandate to several (one court) expressed from this frustration change that result. result, legally required with the but in none of