USA v. Walter Rausini

Filing

Filed order amending opinion (M. MARGARET MCKEOWN, KIM MCLANE WARDLAW and RICHARD C. TALLMAN) The opinion filed on August 9, 2016, appearing at 2016 WL 4191523, is hereby amended as follows: (SEE ORDER FOR FULL TEXT) With this amendment, the panel has voted to deny the petition for panel rehearing and the petition for rehearing en banc. The full court has been advised of the petition for rehearing and rehearing en banc and no judge has requested a vote on whether to rehear the matter en banc. Fed. R. App. P. 35. The petition for panel rehearing and petition for rehearing en banc are DENIED. No further petitions for en banc or panel rehearing shall be permitted. [10168548]

Case: 14-10147, 10/21/2016, ID: 10168548, DktEntry: 61, Page 1 of 3

FOR PUBLICATION

UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,
Plaintiff-Appellee,

No. 14-10147

v.

D.C. No.
3:95-cr-00319- MMC-7

JOHN DOE,
Defendant-Appellant.

ORDER

Filed October 21, 2016
Before: M. Margaret McKeown, Kim McLane Wardlaw,
and Richard C. Tallman, Circuit Judges.

ORDER
The opinion filed on August 9, 2016, appearing at 2016
WL 4191523, is hereby amended as follows:
At slip op. page 8 n.3, change “We also reject
Doe’s argument that judicial estoppel prevents
a court from taking inconsistent positions;
judicial estoppel is a doctrine that applies to
the parties, not the court. New Hampshire v.
Maine, 532 U.S. 742, 750–51 (2001). In any
event, we disagree with Doe’s premise that
the court acted inconsistently.” to “We also

Case: 14-10147, 10/21/2016, ID: 10168548, DktEntry: 61, Page 2 of 3

2

UNITED STATES V. DOE
reject Doe’s arguments that judicial estoppel
prevents a court from taking inconsistent
positions, and that his due process rights were
violated. First, judicial estoppel is a doctrine
that applies to the parties, not the court. New
Hampshire v. Maine, 532 U.S. 742, 750–51
(2001). In any event, we disagree with Doe’s
premise that the court acted inconsistently.
Second, a trial court violates a defendant’s
due process rights only “by relying upon
materially false or unreliable information at
sentencing.” United States v. Hanna, 49 F.3d
572, 577 (9th Cir. 1995) (citing United States
v. Kerr, 876 F.2d 1440, 1445 (9th Cir. 1989)).
Not only was Doe not “at sentencing,” but
also, the trial court relied on facts to which the
parties had stipulated, including Doe’s sworn
plea agreement admitting solicitation of
murder, as well as a government document
showing Doe later backed away from that
admission. Though some of the information
was conflicting, it was not “materially false or
unreliable information.” See id. at 578
(finding due process violation where
sentencing court relied upon the
“uncorroborated and unreliable” allegations of
a co-defendant who “presumably wanted
revenge” on defendant).”

With this amendment, the panel has voted to deny the
petition for panel rehearing and the petition for rehearing en
banc.

Case: 14-10147, 10/21/2016, ID: 10168548, DktEntry: 61, Page 3 of 3

UNITED STATES V. DOE

3

The full court has been advised of the petition for
rehearing and rehearing en banc and no judge has requested
a vote on whether to rehear the matter en banc. Fed. R. App.
P. 35.
The petition for panel rehearing and petition for rehearing
en banc are DENIED. No further petitions for en banc or
panel rehearing shall be permitted.