United States v. Guadalupe Rodriguez-Gastelum
569 F.2d 482
9th Cir.
1978
Check Treatment

*2 WRIGHT, Circuit Judge, with whom CHOY, WALLACE, TRASK, and SNEED KENNEDY, Judges, concur: this

We took case en banc con to a suspect sider whether in a criminal inves tigation can waive his to counsel after initially having made known his desire to have the assistance counsel. holdWe prohibiting such a waiver necessary is neither nor appropriate. Rodriguez-Gastelum made incriminating he was stopped statements after driv- while ing an automobile loaded with marijuana.1 He was toward proceeding Tucson in a ve- hicle which had been under customs surveil- Nogales, Arizona, lance in a lot. parking Treto approached Customs Officer and ad- appellant rights vised of his English in both Spanish. Appellant responded he rights objection understood his and had no answering questions. the officer’s car, ap- Treto asked who owned the pellant he said that did not know. In re- questions, sponse appellant to further said that he was a mechanic car delivering the then appellant Tucson. Treto asked open Appellant “appeared very the trunk. point, nervous” and refused. At this Treto him placed appellant under arrest and took to the Enforcement Administration Drug (DEA) for office further Officer Brown. followed, quote

For what we from Offi- testimony: cer Brown’s I told him that I would read his to him which I At again, Spanish. did in reading rights, end Zapata, Asst. Frank R. Federal Public is, final “Do you understand Defender, Tucson, Ariz., for appellant. said, “Yes, rights?” And he I under- Dichter, D. Asst. Stephen Atty., U. S. stand, don’t have money pay but I Ariz., Tucson, for appellee. again I attorney.” explained an to him case, that in that Tuc- Court here in son him an provide attorney. would

I then him if he talk asked wanted to had, said, “Okay, about what and he BROWNING, ELY, said, Before attorney.” HUFSTED- okay, but with And LER, WRIGHT, TRASK, CHOY, GOOD- to talk to me now without you “Do want WIN, WALLACE, SNEED, KENNEDY, said, attorney?” And to that he ANDERSON, Circuit Judges. “That’s fine.” patterns vary. The factual At times the incriminating then made state-

Appellant in evidence at gave ments which were received talks the same officer who accused he contends that his appeal, his trial. On warnings. him the Miranda Or he talk disregarded request for an style, who has a to another officer different ques- Brown’s and that Officer continued personality, approach. Sometimes tioning deprived him of his Amend- Sixth agent talks to an undercover believ- *3 to the assistance of counsel. right ment ing him to be a fellow in crime. theOr warnings forgotten ignored re Miranda appellant’s The first issue is whether attorney,” sponse, “Okay, okay, by with an both the prisoner and the officer.3 protection was sufficient to invoke the question The is not so difficult quite the Fifth Amendment and Amend Sixth interrogating when the officer is uncertain ment rules first announced in Escobedo v. suspect, as to the as was intention of 478, 1758, Illinois, 12 378 U.S. 84 S.Ct. Brown, only Officer and seeks a clarifica- (1964), expanded L.Ed.2d 977 in Miran That now before us.4 tion. situation Arizona, 1602, 16 436, da v. 86 384 U.S. Supreme Counsel look to two recent (1966). L.Ed.2d 694 we Although disagree support respective Court cases for for their issue,2 as to the resolution of this dispo our sition of the second appeal positions. Michigan Mosley, issue on makes 423 U.S. disagreement that unimportant. pur 96, 321, For 96 46 L.Ed.2d 313 poses opinion, appel of this we assume that Supreme Court held that a who has lant’s response was clear to sufficiently chosen to remain silent with reference to trigger protection constitutional de can, questions about one crime after a re- by manded Escobedo and Miranda. warning, newed Miranda be questioned term, about another crime. Last the Court question second is whether ap prisoner that a held who had been ar- pellant’s answer, fine,” “That’s to Officer raigned attorney appointed and who had an clarifying (whether Brown’s appel interrogated could not be in the absence of lant wanted to talk with him then without his counsel. Brewer v. 430 U.S. an attorney) constituted an effective waiver 97 (1977). 51 L.Ed.2d 424 of his prior request for assistance of coun sel. Both sides in the at bar case claim too only much for these cases. held questioning Under all must properly that a who has been ad- stop once counsel requested. has been his his rights, vised of and who invoked While we have little with that difficulty counsel, to but not his to principle, basic the situation is more com judgment talking can use his own plex ceases, when the interrogation only to officers about other crimes if he is alleged resumed after an reconsideration advised by suspect. interrogation. of his before each opinion See, Pheaster, appel- g., 2. The author of this thinks that e. United States v. F.2d purported request 1976), (9th lant’s for the assistance of Cir. cert. denied sub Inciso nom. that, ambiguous counsel was so even under a v. United rule, precluded it (1977); could not have Officer United States v. Flores asking follow-up question. Calvillo, 14, 1976; Brown from his (9th July No. Cir. Others read the statement to indicate an petition rehearing pending); United States unambiguous assertion of Kinsman, 1976); (9th 540 F.2d 1017 Cir. attempt right. followed Womack, (9th waive that United States v. 542 F.2d 1047 Since this court took the case en banc to decide 1976); (9th Keiper Cupp, Cir. 509 F.2d 238 appropriate whether a se rule is Nelson, Warden, such 1975); Cir. Williams circumstances, and since we find that such a (9th 1972). F.2d 376 Cir. appropriate appellant rule is not and that waived his it makes little dif- 4. See note 6 infra. ference whether one reads the facts as does the author of this or as do some other members of the court. Brewer expressly holding panel refrained from recognized a “key distinction that a never waive prisoner could between

to counsel once asserted. 430 at 403- presenting the evidence available 97 S.Ct. 1232. The case held that him.”6 544 F.2d at 366. The court noted in the circumstances shown in that record panels other of this and other circuits there had no such waiver. Brewer been have relied on the same distinction in find- teach, however, does the burden is ing a waiver of rights. asserted Miranda greater government attempts when the Davis, United See States v. 527 F.2d 1110 show a waiver after the to counsel has (9th 1975); Cir. Hodge, United States v. been asserted than when the F.2d 1973). attempts to show a waiver of the The court also found “instructive” the remain silent. 430 at 405 & n. “closely-re- Court’s treatment of a 5.Ct. 1232. question” (“the lated effect of suspect’s This circuit has not been consistent in its *4 indication silent”) that he desires to remain decisions on cases involving waiver of an in Michigan Mosley, supra: asserted counsel.5 In United States In the Mosley rejected a literal Pheaster, (9th 1976), 544 F.2d 353 Cir. Miranda, interpretation holding of that cert. denied sub nom. Inciso v. United the exercise of the to remain silent States, 429 U.S. 97 S.Ct. preclude does not all further questioning. L.Ed.2d 546 a panel found an im Rather, particular in the context of the plied waiver less than half an hour after the facts of the that a Mosley, Court held to counsel had been explicitly assert confession made after Mosley two hours ed. had indicated his desire to remain silent Pheaster, In agents gave FBI was admissible. Although . . . the warnings. The defendant asked for an at- specific holding in is not direct torney and questions. refused to answer In precedent for ap- the resolution of this a car en route to the county jail, agent an peal, Mosley does a recogni- indicate both “firm,” engaged in a “one-way conversa- tion that the procedure set out in Miran- defendant, tion” with the primarily involv- da is not as clear language as the of that ing a recitation of the against evidence him. opinion might suggest willingness and a Intermittently, agent asked where the import greater a degree flexibility of kidnapping being victim was Upon held. application in the varying of Miranda to hearing that fingerprint a on one of the factual situations. notes had been positively his, identified as the defendant admitted complicity 544 F.2d at “importpng] 367. While a then cooperated with agents. greater degree flexibility of in [and realism] See, g., Pheaster, 399-400, 5. e. United States v. 544 F.2d 97 S.Ct. at 1239. (9th 1976), Pheaster, Cir. cert. denied sub nom. informing Inciso the officer was the defend- v. United against ant of the him evidence so that (1977); United States Flores- defendant could invoke waive his constitu- Calvillo, 75-3785, (9th July 14, 1976; No. Cir. appraisal tional based on a realistic of petition rehearing pending). for his situation. case, In the instant it is even more difficult to Thus, the factual in situation Pheaster con- follow-up ques- characterize Officer Brown’s trasts with that in Brewer v. where “interrogation”. tion as continued The context there was clearly attempt indicates that it was an to clari- no serious doubt . . . that Detective fy the defendant’s intention. Learning deliberately designedly set out The Pheaster court also the fact relied on just to elicit information from Williams as period transpired that a short of time surely perhaps effectively as —and more between the assertion of and the formally interrogated than —if he had him. waiver. 544 F.2d at 368. About 15 to 20 elapsed. minutes had In the instant case the Learning’s Detective “Christian burial immediately the assertion followed speech” interroga- tantamount [was] [an] to counsel. tion. Miranda,” panel rec- The district court admitted application the state- course, ognized Government, of ments, that finding subsequent that her willing- “[t]he ‘bears a burden to demon- heavy ... talk product ness to was not the of coercion knowingly strate that the defendant Agent Sears. The district court also intelligently privilege waived his that “nothing asserted in Miranda deci- and his . self-incrimination suggests questioning, sion with proper counsel. waiver, readvisement of rights and cannot ” S.Ct. 1602.’ F.2d at 368. continue.” The panel and, reversed awith explicit Without indication strong dissent from Judge Choy,adopted its waived, asserted had been panel per rule. The majority se said: still found that the had satis- Within the narrow confines described

fied burden” “heavy showing its an im- by Mosley majority opinion, a person plied waiver. custody, who has asserted the right to At about same time that Pheaster it, can waive subsequently but the decided, panel another was faced with applicable waiver doctrine is not when a case presenting a substantially similar person custody expressed Flores-Calvillo, issue. United States No. desire for counsel. 14, 1976; July petition Opinion Slip at 3. rehearing pending). On initial considera tion, panel, the Flores-Calvillo one judge argument After and consideration dissenting, se applied eliminating rule banc, en the court majority of is now waiver, possibility once an assertion satisfied that the rule adopted by *5 of a made, desire counsel to have has been panel is neither required Flores-Calvillo until the suspect has consulted actually by the Sixth Amendment nor consistent with counsel. When the case instant good Rather, with law enforcement. we taken banc, panel en in Flores-Calvillo applied hold that Miranda must with the withheld issuance of the mandate and de “flexibility espoused by and realism” layed a petition action on rehearing for panel. It little say Pheaster makes sense to pending disposition. our that, counsel, once having requested pris a illustrate, The facts of Flores-Calvillo as never, may actually oner until he talked do the facts in Pheaster and in the instant mind and decide to change his case, that a se per rule too would reach far. with the speak police attorney without In Flores-Calvillo, the defendant’s car was present. being port searched at Calexico, of entry rejecting a rule as the law of California. Heroin was found and Flores- circuit, particularly we this have been influ- Calvillo was arrested. The inspector ad- by Judge thoughtful opin- enced Renfrew’s vised her rights. of her The defendant Judge Choy’s Pheaster ion in and dissent stated that she understood them and that Choy had Judge in Flores-Calvillo. this to she did not want to make a statement with- say: out an being present. attorney inspec- tor stopped Though be the questioning immediately fountain Agents head, called the DEA. I do that it speaks Sears and Thomas not believe di arrived and learned that the defendant had rectly or to the definitively particular been rights. advised of her agents voluntary of a later problem waiver of a went to her cell and again her of advised Certainly once claimed. there is her rights. replied She that she understood in Miranda which could be tak language them, but that she did anything. not know saying a request en as that once is made lawyer a the suspect ques cannot be

Agent then responded, Sears “Wait a minute, again present, until an tioned you know things do some about this, I do not but think that the Court was I’d like to talk to about you it.” said, Defendant “Okay,” considering there the case—or precluding and then made incriminating voluntary statements. the possibility a later waiv —of There language er. is also in Miranda What if a suspect, after first refusing implying that the cannot again be to make a statement an attorney, without after once questioned claiming voluntarily changed if, his mind? What Mosley specifically ruled without any prompting or coercion from otherwise, despite language. I do authorities, he begged them to take not believe that we are barred from do ing the same.1 [7] his confession? deny him the ability make an informed Would the majority still not, voluntary waiver of his

Mosley does in the Court’s own words, silence procedures “involve the and to consult to be fol- counsel? To do so lowed if the person in custody “imprison asks to would be to privi- man in his consult with a lawyer, since Mosley leges,” made Adams v. United ex rel. request no such at any time.” McConn, U.S. 269, 280, [423 at 101 n. Only Justice 321] L.Ed. 268 and I can see neither White, in a concurring opinion not neces- logic nor precedent requiring sary to form the majority, suggested that that. request for a lawyer differs from a Per se rules too often force us to lose request to remain by triggering silent touch with the for their reasons creation. True,

per se rule. the majority recog- purpose Miranda, The whole and thus nized that requests two are distin- rule, of its protect is to the privilege guishable, id. at 104 n. against self-incrimination and to insure but the Court’s did not go so far waiver is “voluntarily, made as to establish the se rule constructed knowingly, and intelligently.” in today’s opinion. Today’s S.Ct. 1602. majority Indeed, I believe that such a rule is opinion goes beyond far by preclud- this contrary to the whole spirit of Mosley. ing waivers might which be made “volun- warned, As the majority there at [423 tarily, knowingly, intelligently.” S.Ct. 321]: prefer adjudica- would a case-by-case prohibition blanket [A] tion, just as was done in if a *6 taking voluntary of statements or a suspect once claims the permanent immunity from further in- determine whether there has been such a terrogation, regardless of the circum- waiver suspect’s and whether the rights stances, would transform the Miranda have been “scrupulously honored.” Mos- safeguards wholly into irrational obsta- 103, 321; 423 ley, U.S. at 96 Miran- S.Ct. legitimate cles to police investigative da, 479, 384 at 86 S.Ct. 1602. If the activity, and deprive suspects op- of an suspect previously had indicated that he portunity to make informed intelli- wished to consult an attorney, special at- gent assessments of their interests. tention given would have to be to insure

that he properly waived his right legal [7] taken after cannot point his Fifth sion, that that however, silent, indicates in must cease until one is or S.Ct. at 1 during questioning, It is paragraph, he wants an subtle or otherwise.” Yet the be other than the stated in has shown that he Amendment the Court stated: any that: manner, person Miranda, attorney, “If the individual privilege; any that he wishes to remain must cease. At that invokes his present.” product intends to exercise any “If the the Mosley specifi time interrogation of 1602, 1628, statement individual Earlier in prior privilege compul 474, states [to] 86 between the two him.” There cates though that he wishes before so be cally claimed. Likewise, any se rule. strong interrogated, manner and at approved in speaking the any as to Similarly, if the individual 1612: “If manner that he does not wish to may require later to silence had to consult with an there situations, well be a see any police may [the can be no stage suspect] application is alone and indi but I see logical previously at not of a questioning. indicates in 444— distinction of a nothing process suspect been informing from making separate in decision to defendant of circum-

advice See, might intel- g., waive his e. stances which contribute to an silence. ligent of his un- Jackson, judgment.8 exercise We United 436 F.2d 39 States that the interrogating derstand officer 1970). the circum- Depending on suspect or badger bring pressure not stances, reading than a more new induce a change intended to Nor mind. warnings a short time later can he reconsidering coerce into might required guarantee that of his Michi- assertion to counsel. there was an effective two-fold waiver. Mosley, gan supra, Arizo- Miranda v. Opinion at Slip 4-6. na, compel that understanding. But pointed As the out it is undisputed in this case that was there 387, 404, Brewer in badgering, pressure, no or coercion. (1977), Johnson v. clear, explicit, unequivocal. Zerbst, 458, 464, proposed by The test the dissent reaches properly L.Ed. states by insisting too far government that test determining when a cannot, interrogator under circum- who asserted his to counsel later stances, initiate or induce the waiver. We right: waives that district judges capable believe that indulge pre- every reasonable “[C]ourts applying the Zerbst test to many cases sumption against waiver” of fundamental widely varying factual circumstances constitutional . . and . . rule, them. brought perA how- before presume we “do not acquiescence in the disguised, ever would serve to hand- loss of fundamental A waiver rights.” cuff our law in the enforcement officers ordinarily an relinquishment intentional performance imprison of their duties and to priv- or abandonment of a known in alleged constitutional ilege. The determination of whether privileges. intelligent there has been waiver of the AFFIRMED. depend, must each case, upon particular facts and cir- GOODWIN, Judge, Circuit concurring case, surrounding cumstances includ- dissenting; BROWNING and ANDER- ing the background, experience, and con- SON, Judges, joining. duct of the (Citations omitted.) accused. agree I with the majority view that Those joining concurring in the and dis- necessary cases is neither senting opinion Judge agree Goodwin nor desirable. test, Zerbst states the applicable they read it to mean that agree, however, fright do not that the *7 can show a waiver right of the to counsel ened in meant, Mexican this case when only if “explicit, it is by said, fine”, initiated the sus- “that’s to waive then there pect, which, and not in any way right induced to counsel a by the moment earli er, interrogators.” trying he was still do I reading, practical Such a in invoke. Nor agree the majority’s with of a acceptance effect and under guise, a different reincor- Pheaster, waiver in United 544 States porates a majority 1976), F.2d 353 cert. denied sub the court has today rejected. 1099, nom. Inciso United 429 U.S. The Supreme in 1118, Court Zerbst in 97 The (1977). S.Ct. way precluded no strong officer majority’s reliance on Pheaster will Brewer, It is clear as well that in Court is not barred after of the officer assertion 399-400, 1232, only 430 right prohibits U.S. at 97 S.Ct. understood to counsel. Miranda con- “interrogation.” communication between the defendant and tinued supra. See noté 6

489 by’ waivers to find suspect trial courts When a has encourage only asserted his techniques persist police right where and not his prisoners “ reas- constantly to suspect interrogation force the can be resumed if which ‘his right to counsel. sert his or her to cut off questioning’ was ‘scrupulously ” honored,’ and if he thereafter waives his to a interrogators police hold I would (423 104, to silence. at 96 U.S. S.Ct. forth in waiver as set strict standard 326.) at 458, Statements made after Zerbst, question- 58 304 S.Ct. U.S. Johnson ing has been resumed are restated admissible 1019, upon and as 82 L.Ed. 1461 387, Government’s bearing heavy 97 its 430 U.S. S.Ct. burden in Brewer v. proof of waiver 1232, (1977). only The when the suspect’s L.Ed.2d 424 suspect, to silence by contrast, initiated is involved. explicit, must be however, interrog- way induced of the any and not in cannot invites be simply lenient rule resumed after the Any ators. more individual has assert- invent new strata- ed officer to ingenious until the has waivers had an produce opportunity colorable to consult gems with counsel. The majority opinion to counsel. in Mosley twice states point specifically: “The present case instruc- remand with I would reverse and does not involve procedure to be fol- Rodriguez- the statements tions to exclude if person lowed in custody asks to con- he wanted an made after he said Gastelum sult with a lawyer since Mosley made no attorney. request such at procedures time. The HUFSTEDLER, Judge, Circuit with detailed in the Miranda as fol- ELY, Judge, joins, dissenting: whom lows [quoting 474, majority opinion cannot be reconciled again: And “The dissenting opin- 1602].” (1966) with Miranda v. Arizona 384 U.S. ion asserts that Miranda established re- 436, 1602, 694, quirement 16 L.Ed.2d as con- person S.Ct. that once a has indicated Michigan (1975) strued in silent, U.S. desire to remain questioning may 321, 313, 46 L.Ed.2d nor with only resumed when present. counsel is (1977) Brewer v. Williams 97 Post at 96 S.Ct. at 326. [423 U.S.] 51 L.Ed.2d 424. But clearly the Court in imposed Miranda requirement, no such distinguished for it requires that no statement of a between the procedural safeguards trig- person custody which is made after that gered aby request to remain silent and a person requested counsel can be admit- request for an attorney and directed that ted unless and until the has talked ‘interrogation must attorney cease until an lawyer. to his could present’ is the individual states ‘[i]f explicit language not have chosen more that he an attorney. wants at U.S. principle state that in Miranda: “If the ” (423 S.Ct. 1602.’ n. an attorney, individual states that he wants 326.) must cease until an attor- ney time, At that present. individual No of waiver counsel can must have an opportunity to confer properly arise unless and until a advised present and to have him dur- suspect, who has asserted his to a ing (384 any subsequent questioning.” lawyer (no inarticulately matter how *8 1628.) at at S.Ct. made) request has been has consulted his Thereafter,

The Supreme lawyer. responds Court has read Miranda to if the suspect right mean what it when the to coun- says to in his interrogation lawyer’s resumed asserted, merely right absence, sel is rather than the the inquire we then whether majority opinion to silence. The in prov- its burden of has carried Government meticulously distinguishes were right the to si- statements suspect’s the ing lence from the to and vol- intelligent, counsel. knowing, after a made consulting until any not to make statements no Accordingly, counsel. of

untary (430 McKnight back in Des Moines.” re- has been after counsel made statement 1236.) The police at fur- U.S. has been counsel and before quested incriminating officers obtained information violating without be admitted nished can Neither of Williams’ law- during drive. makes that Mosley majority The Miranda. was yers present. repeatedly. expressly point coun- defense overruled trial court The Mr. Justice concurring opinion, In his of the admission to objections ' Miranda sel’s point White underlines the that statements ruling that statements incriminating requested who has coun- by suspect made have an his to had ‘waived “Williams when those statements sel must be excluded of such during giving present obtained before the has had ” his mur- appealed Williams information.’ “As opportunity to consult with counsel: by the conviction, was affirmed which der out, the statement majority points opinion. in a divided Supreme Court Iowa requiring interrogation to cease federal ha- granted district court A federal to ‘right after an assertion of the silence’ that Williams corpus grounds on the beas nothing tells us because it does not indicate had his had been denied interrogation may how soon this resume. Miranda, his of protection been denied very para- showed in the next Court and he had voluntary, statements were not moreover, graph, that when it wanted to The Court rights. waived not a per create further interro- Appeals affirmed. gation right, after assertion of a it knew holding that Appeals, the Court of affirmed how to do so. The Court there said ‘[i]f Williams interrogation denied individual attorney, states that he wants an and that counsel effective assistance of must cease until an attor- prov- carry its burden did not State ” ney present.’ (Michigan is v. Mosley, su- held that ing waiver. Williams pra, at 329 to counsel after coun- waive his could (White, J., omitted; (citations concurring) after he to him and sel had been furnished emphasis original).) but no state- lawyer, his had consulted with during in-custody made ment of the protection Miranda’s to coun- in the absence interrogation was admissible sel was Williams, reinforced in Brewer v. at- of counsel after tached, carried its burden unless the State L.Ed.2d 424. no in-custody proving waiver. interrogation occurred until Williams had one, consulted with not two lawyers. Rodriguez’ case very simple. Special His Des Moines lawyer, McKnight, advised Agent Brown of the Drug Enforcement Ad- Williams that police Des Moines officers ministration advised Rodriguez of his Mi- would pick him up and that the “officers randa rights after his Rodriguez arrest. would not interrogate him, him or mistreat told Brown that he had no funds to hire a and that Williams was not to talk to the lawyer. responded Brown that a lawyer officers about Pamela Powers until after appointed would be for him and asked Ro- consulting upon with him his return to Des driguez if he wanted to talk to agent Moines. . . . agreed between about the (driving [I]t incident a load car across McKnight and the Des Moines police offi- marihuana). border carrying According cials that would drive to Dav- [the testimony, Brown’s Rodriguez answered, officers] enport pick up Williams . . . and “Okay, but with a lawyer too.” Despite they would not question during him this unmistakable request for a lawyer, trip.” (430 U.S. at Brown continued interrogate Rodriguez, 1235.) Meanwhile, ultimately Williams had also obtaining con- incriminating state- sulted with another ments lawyer, Kelly, from him during which were introduced arraignment. over objection. Kelly also “advised him *9 case presents This routine Miranda vio- DOYON, al., LIMITED et Rodriguez lawyer, lation. for a asked Plaintiffs-Appellees, did not cease. He had no v. to talk lawyer chance to a because no law- CORP., Defendant-Appellant. SEALASKA had been him. The state- yer furnished to Rodriguez gave response ments DOYON, al., LIMITED et the continued were flatly inad- Plaintiffs-Appellees, under Mosley. missible both Miranda and v. REGION, COOK INLET waiver of counsel not Defendant-Appellant. would, presented

even on record. I this therefore, direct the of the evi- suppression DOYON, al., LIMITED et dence under reverse and remand Plaintiffs-Appellees, new trial.1 v.

AHTNA, INC., Defendant-Appellant. DOYON, al., LIMITED et Plaintiffs-Appellees, v. CORP., 13TH REGIONAL

DOYON, al., LIMITED et Defendant-Appellant. Plaintiffs-Appellees, v. DOYON, al., et LIMITED CORP., BRISTOL BAY NATIVE Plaintiffs-Appellees, Defendant-Appellant. v. NATIVES, INC., CHUGACH DOYON, al., LIMITED et Defendant-Appellant. Plaintiffs-Appellees, v. DOYON, al., LIMITED et CORP., ARCTIC SLOPE REGIONAL Plaintiffs-Appellees, Defendant-Appellant. v. ANDRUS, Secretary Cecil D. of the Interi DOYON, al., et LIMITED Blumenthal, and W. Michael Secre Plaintiffs-Appellees, tary Treasury, Defendants-Appel lants. CORP., Defendant-Appellant. CALISTA 76-3685, Nos. 76-3681 to DOYON, al., et LIMITED 76-3710, 76-3754, 76-3748, Plaintiffs-Appellees, 77-1166 77-1084. United States of Appeals, Ninth Circuit.

KONIAG, INC., Defendant-Appellant. Feb. 1978. DOYON, al., et LIMITED Plaintiffs-Appellees, Rehearing Rehearing En Banc 25, 1978. May Denied CORP., INC., NANA REGIONAL

Defendant-Appellant. merits, heavy necessary imposed upon reach the burden it Johnston If it were 458, 464, (1938) difficulty holding no waiver v. Zerbst have no would scarcely pause, in Brewer let There was reiterated occurred. 82 L.Ed. nothing questioning, in Williams, 97 S.Ct. 1232. cessation of alone 430 DOS. suggests met record the Government