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Connie C. Armstrong, Jr.

Reg. No. 88762-011, Unit B-5


Federal Correction Institution
P.O. Box 9000
Seagoville, Texas 75159-9000

May 28, 2002

Office of the Clerk


U.S. Court of Appeals
95 Seventh Street
San Francisco, CA 94103-1526

Re: PETITION FOR PANEL REHEARING WITH SUGGESTION FOR


REHEARING EN BANC in united States of America v.
Armstrong, No. 00-10399 in the united States Court of
Appeals for the Ninth Circuit

Greetings:

Enclosed please find the original and 50 copies of


Defendant's PETITION FOR PANEL REHEARING WITH SUGGESTION FOR
REHEARING EN BANC in the above-referenced cause.

Very truly yours,

Connie C. Armstrong, Jr.


~

Enclosures ~-------/

cc Eb F. Luckel
U. S. Attorney's Office
Criminal Division, Suite 215
450 Golden Gate Avenue
San Francisco, CA 94102

\
No. 00-10399

IN THE UNITED STATES COURT OF APPEALS


FOR THE NINTH CIRCUIT

UNITED STATES OF AMERICA,

Plaintiff-Appellee,

v.

CONNIE C. ARMSTRONG, JR.,

Defendant-Appellant.

ON APPEAL FROM THE UNITED STATES DISTRICT COURT


FOR THE NORTHERN DISTRICT OF CALIFORNIA

PETITION FOR PANEL REHEARING WITH


SUGGESTION FOR REHEARING EN BANe

Connie C. Armstrong, Jr.


Reg. No. 887-62-011, unit B-5
Federal Correctional Institution
Seagoville, Texas 75159
972-287-2911
TABLE OF CONTENTS

TABLE OF AUTHORITIES . . . . . . . . . • . . • • . . • . . . . • . . . . . . . . • • • . . iii

I . STATEMENT OF PETITIONER .•.. . . . . . . . • . . . . . • . . . . . • . . . . . • • . .. 1

II. STATEMENT OF THE CASE' . . • . . . . • . . • • . . • • . . . . • . . . . . . . . . • . . . . '. 2

III. ARGUMENT

A. Armstrong received a 108-month sentence


on counts for which a 60-month statutory
maximum sentence applies 2

B. To the extent, if any, the sentencing


judge intended to assess consecutive
sentences, the reasons for that
assessment were not stated 4

c. Armstrong was sentenced on three counts


of ~travel fraud H despite the indictment's
failure to set forth the elements
of this crime. 6

1. Du Eo analysis for timely objection. 7

2. Cotton analysis for forfeited claim. 8

D. The district court improperly applied


U.S.S.G§ SG1.2 by failing to determine
and assess the sentence for the count
carrying the highest statutory maximum. 12

IV . CONCLUS I ON-· . • . • . • . . . . . . . . . . . . . . . . . . . . . . . • . . . . . • • • • . . . . • . . 15

V. CERTIFICATE OF SERVICE • . . • . . • • . • . . . . . . • . . . • . • . • • . • . . . . . • 15

ii
TABLE OF AUTHORITIES

CASES

Engle v. Isaac i 456 U.S. 107, 135 (1982) 11

United States v. Abdel-Rachman, 189 F.3d 88 1 173-74


(2nd e i r. 199 9 ) 13

United States v. Archdale, 229 F.3d 861 1 870-71


( 9 th e i r. 2 0 0 0 ) 13

United States v. Armstrong, No. 00-10399 1


U.S. App. LEXIS 6932 (9th eir. April 151 2002) ... 1, A1

United States v. Atherton, 561 F.2d 747


(9th eire 1977) 6

United States v. Buckland, No. 99-30285 1


U.S. App. LEXIS 8738
(9th eire January 18, 2002) 10

United States v. Calozzo, 125 F.3d 687


(9th eir. 1997) 12

United States v. Carll, 105 U.S. 611 (1881) 8

United States v. Chandler, 586 F.2d 593


(5th eir. 1978) 6

United States v. Conkins 9 F.3d 1377


l

( 9 th e i r. 19 9 3) ..••..••.•.•.••••.•.•..•..•........•. 5

United States v. Cotton, No. 01-687 1

U.S. LEXIS 3565 (May 20, 2002) 7

United States v. Darden, No. 99-50259,


U.S. App. LEXIS 3788 (9th eire Mar. 7 1 2002) 4

United States ·V. Dior, 671 F.2d 351 (9th eire 1982) 6

United States v. Du Bo, 186 F.3d 1177


(9th eire 1999) 7

United States v. Geiger, 263 F.3d 1034


( 9 th eir. 2001) 9

iii
United States v. Godinez-Rabadan, No. 01-10455,
u.s. App. LEXIS 8589 (9th eir. May 3, 2002) ..... 0 ••• 9

United States v. Hooker, 841 F.2d 1225


( 4 th ei r. 19 8 8 ) . . . . . . . . . . . . . . . . . . . . . . . . . . . .. 7, 8 , 9

united States v. Joetzki, 952 F.2d 1090


(9th eire 1991) 3, 4, 5

United States v. Keith, 605 F.2d 462


(9th eire 1979) 8

United States v. King, 587 F.2d 956


( 9 th e i r. 19 7 8 ) . . . . . . . . . • • • . . . . • . • . . • • . . • • • . • • . . .. 7

United States v. Morrison, 536 F.2d 286


( 9 th ei r. 19 7 6 ) 8

United States v. Pedrioli, 931 F.2d 31


( 9 th Cir. 1991) 4

United States v. Pernillo-Fuentes, 252 F.3d 1030


(9th eire '2001) 0 ••••••••••••••••••••• 7

United States v. Pisello, 877 F.2d 762


(9 th Cir. 19 B9) • . • • . . • • • . . . . • • . . • . . . • . . . • . . . . • • . . . . . 9

United States v. Reese, 2 F.3d 870


(9 th eir. 1993) 9

united States v. Rosi, 27 F.3d 409


(9 th Cir. 1994) 7, 8

United States v. Ross, 206 F.3d 896


(9th eir. 2000) 10

United States v. Spruill, 118 F.3d 221


(4th eire 1997) - 9

United States v. Steffen, 251 F.3d 1273


( 9 th C ir. 2001) 0 • • • • • • • • • • • • • •• 4

United States v. Whetzel, 589 F.2d 707


(D.C. eire 1978) 6

uni ted States v. -Wills, 881 F. 2d 823


(9th eir. 1989) -4-

iv
STATUTES

18 U.S.C. § 1343 (2000) 2


18 U.S.C. § 2314 (2000) . . . . . . . . . . . • • . . . . • • • . . . . . . . . . . . 2/ 6
18 U.S.C. § 3553(a) (2000) 4/ 5
18 U.S.C. § 3584(a) (2000) 5
18 U.S.C. § 3584(b) (2000) 4

U . S . S • G . § 1. 1B 12
U . S . S . G. § 5G1. 2 . . . . . • • • • . . . . . . . . . • . . . . . • . . . . . . • . . . . . . 2/ 14
U . S . S . G . § 5Gl. 3 . . . . . . . . . . . . . . • . . . . . . . . . . . . . . . . . . . . . . . .. 5
U . S . S . G. § 7Bl. 3 (f) . . • • • • . . . • • . • • • • . . . . • . . . . . . • . . . . • • • • • . 5

RULES

Circuit Rule 4-1(c) 1


Fed. R . Crim . P.
52 (b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

v
:I. STATEMENT OF PET:IT:IONER

Armstrong respectfully petitions for rehearing and suggests

rehearing en bane of the panel's unpublished opinion entered

April 15, 2002 and attached as Appendix pp. 1-2. 1 The panel has

overlooked certain issues of law in reaching a conclusion that

is in conflict with Ninth Circuit precedent. Rehearing en bane

is particularly appropriate because this appeal raises a sig-

nificant Guideline-interpretation question of exceptional impor-

tance and first impression.

The overlooked issues of law concern, respectively, a sen-

tence in excess of the statutory maximum, a failure to state

reasons for a constructively consecutive sentence, and a fatal

defect in the indictment that was raised and overruled in the

district court. 2 The issue of first impression centers on the

1Armstrong files this petition pro se. Armstrong was pre-


viously represented by appointed counsel in this appeal. This
appointed counsel has not filed a motion to withdraw under Cir-
cuit Rule 4-1(c)i accordingly, the Clerk of this Court may con-
sider Armstrong represented by counsel. Even so, Armstrong's
appointed counsel has given notice that he is discontinuing rep-
resentation. please see the letter attached as Appendix p. 3.
Further, the appointed counsel has in fact discontinued repre-
sentation. He has neither accepted Armstrong's telephone calls
nor responded to his letters. He allowed a deadline to expire
without seeking an enlargement of time.
2Whether or not this defect was raised in the district
court is a key issue that is potentially dispositive of this
point. Armstrong believes, based on handwritten notes in his
possession, that this issue was presented to the district court
on March 12, 19-9-6 in his Motion to nism-iss Gounts £or Legal and
--+ continued

1
order in which multiple counts are sentenced in the context of

D.S.S.G. § 5G1.2.

Ii. STATEMENT OF THE CASE

Armstrong was convicted on a 21-count indictment alleging

14 violations of 18 U.S.C. § 1343 and seven violations of 18

U.s.c. § 2314. He received a lOB-month sentence. Upon appeal,

four of the § 2314 counts were reversed for insufficient evi-

dence and this Court remanded for resentencing. The district

court resentenced at the same 108 months. Armstrong presents

this appeal of the resentencing.

III. ARGUMENT

A. ~strong received an lOB-month sentence on counts for


which a 50-month statutory maximum sentence applies.

Armstrong's appeal raises the issue of his lOB-month sen-

tence for a crime carrying a 50-month statutory maximum. In its

opinion, the panel stated " [b]ecause Armstrong's lOB-month sen-

tence was less than the statutory maximum, we find this conten-

Factual Insufficiency, which was overruled on March 29, 1996.


Armstrong has been unable to review this document and thereby
provide a reference to this Court. His appointed counsel has
withdrawn, his trial counsel is on vacation until June 3, 2002,
and even the heroic e£forts of San Francisco'S "Docket Rocket
Document Service~ were unable to retrieve the subject motion in
time for the filing of this Petition.

2
tion unavailing. See 18 u.s.c. § 2314 (prescribing a maximum

sentence of ten years)." The panel misapprehends Armstrong's

complaint. Armstrong's issue is not his sentence for a convic-

tion under § 2314; rather, the issue is his sentence for a con-

viction under 18 u.s.c. § 1343 (wire fraud).

A wire fraud conviction carries a maximum sentence of 60

months. See ida Armstrong was sentenced to 108 months for this

offense. For reference, Armstrong attaches the first three

pages of his docket sheet that clearly show he was sentenced to

a 108-month term of imprisonment for wire fraud. Appendix pp.

4-6.

This sentencing scheme directly conflicts with Ninth Cir-

cuit precedent. In United States v. Joetzki, the court reviewed

a 65-month sentence assessed for multiple wire and mail fraud

violations. 952 F.2d 1090 (9th Cir. 1991). The opinion noted

that the

total punishment of 65 months exceeded the statutory


maximum for mail and wire fraud, each count of which
carries a maximum sentence of five years, or 60
months. [T]he court did not specify whether or
to what extent the sentences on the various counts
w&re to run consecutively. The government would have
us examine the sentence solely in the light of the
Sentencing Guidelines, _arguing that the court implic-
itly ordered consecutive sentences to the extent nec-
essary to total 65 months imprisonment. We reject
this reading of the federal sentencing scheme.

rd. at 1097-98.

Finding that this was effectively -an improperly-imposed

3
consecutive sentence l the case was remanded for resentencing.

See ide at 1098. Joetzki outlines the exact situation presented

in this appeal. Armstrong was sentenced to a term of imprison-

ment in excess of the statutory maximum. At the sentencing

hearing, the district court never expressed any intent to impose

a consecutive sentence. For this reason l Armstrong requests

that his case be remanded for resentencing. 3

B. To the extent, if any, the sentencing judge intended


to assess consecutive sentences, the reasons for that
assessment were not stated.

Should this Court find that the district court imposed a

consecutive sentence l Armstrong complains of the lower court/s

failure to follow the express mandates of this Court in the im-

position of a consecutive sentencing scheme. Not only must the

sentencing judge expressly impose a consecutive sentence, he

must also state the reasons for that imposition. See United

States v. Steffen, 251 F.3d 1273 (9th Cir. 2001).

The district court is required by 18 U.S.C. § 3584(b)


to "consider" the factors set forth in 18 U.S.C. §
3553(a) in determining whether to impose a consecutive
rather than a concurrent sentence. We have made-- clear
that the Sentencing Guidelines do not and cannot de-
prive the district court of the discretion it is di-
rected to exercise under these s~ctions. United
States v. Pedrioli, 931 F.2d 31, 32 (9th Cir. 1991)
("We have already determined that the district -court

3 This analysis and the recommended remedy have- been f_ol~


lowed in an unpublished opinion United States v. Darden, No.
1

99-50259, U ..8. App. LEXIS 3788 at *5 (9th Cir. Mar . . 7 2002).


1_

4
'retains discretion under 18 U.S.C. § 3584(a) to sen-
tence either concurrently or consecutively despite the
guidelines.") (citing United States v. Wills, 881 F.2d
823, 826-27 (9th eire 1989». Therefore, the district
court is required to consider the factors listed in §
3553(a) regardless of statements in U.S.S.G. §§ 5G1.3
and 7B1.3(f) that on their face appear to dictate a
decision without consideration of those factors.

Id. The requirements could not be clearer. Further, the

district court's recitation of its § 3553 analysis must be

sufficiently detailed to allow meaningful appellate review.

See United States v. Conkins, 9F.3d 1377, 1385 (9th Cir.

1993).

Here, the district court did not articulate any analy-

sis whatsoever and even failed to order consecutive sen-

tencing. "Requiring the court expressly to order

consecutive sentences when the Guidelines themselves con-

template consecutive sentences is more than a mere formal-

ism." United States v. Joetzki, 952 F.2d 1090, 1098.

Armstrong's remedy here is a remand for resentencing. See

ida ("Because 18 U.S.C. § 3584(a) demands a specific and

express order when sentences imposed at the same time run

consecutively, we remand for resentencing in light of the

requirements of 18 U.S.C. § 3584(a) and (b) .") Accord-

ingly, Armstrong respectfully requests- this Court remand

his case for resentencing.


c. Armstrong was sentenced on three counts of "travel
fraud H despite the indictment's failure to set forth
the elements of this crime.

Armstrong complains of the failure of his indictment to

fully set forth the elements of a crime against the United

States.

The crime of travel fraud contains as an element the

threshold requirement that the amount at issue must be greater

than $5,000. See 18 U.S.C. § 2314; see also United States v.

Chandler, 586 F.2d 593 (5th Cir. 1978); United States v. Whet-

zel, 589 F.2d 707 (D.C. Cir. 1978); United States v. Atherton,

561 F.2d 747 (9th Cir. 1977). The Ninth Circuit has adopted the

logic of Chandler and also found a jurisdictional component to

the $5,000 requirement. See United States v. DioT, 671 F.2d

351, 357-58 (9th Cir. 1982) (Noting that the effect of the $5,000

limitation was not to shield wrongdoers who restrict their ac-

tivities to small dollar amounts but rather to avoid overtaxing

the federal judicial system by leaving the punishment of such

persons to the states and ~to make the limitation an essential

part of the federal crime.")

Armstrong was indicted for three counts of travel fraud,

and attaches the relevant portions of his indictment. Appendix

pp. 7, 8. The counts are devoid of any reference to any dollar

amount whatsoever. -An indictment is fatally defective if it

fails to recite an-~ssential element of the charged offense.

6
See United States v. Pernillo-Fuentes, 252 F.3d 1030, 1032 (9th

Cir. 2001) (reversing trial court's denial of motion to dismiss

an indictment which charged defendant with a specific intent of-

fense but failed to allege specific intent).

Armstrong believes that his issue was properly raised in

the trial court. See note 4, supra. Because of uncertainty on

this point, however, Armstrong will argue for reversal under

both the Du Bo standard, United States v. Du Bo, 186 F.3d 1177

(9th Cir. 1999), and the Supreme Court's recently articulated

procedure in United States v. Cotton, No. 01-687, u.s. LEXIS

3565 (May 20, 2002).

1. Du So analysis for timely objection.

Du Bo recognized that ~[t]he complete failure to charge an

essential element of a crime . . . \is by no means a mere tech-

nicality.'" 186 F.3d at 1181 (quoting United States v. Xing,

587 F.2d 956, 963 (9th Cir. 1978». An incomplete ~indictment

fails to ensure that [the defendant] was prosecuted only \on the

basis of the facts presented to the grand jury.. '" Id. at

1178- (quoting uni ted States v. Rosi, 27 F. 3d 409, 41.4 (9th Cir.

1994». ~The Fifth Amendment . . . requires that a defendant be

convicted only on charges considered and found by a grand jury."

Id. (citing United States v. Hooker, 841 F.2d· 1225, 1230 (4-th

Cir. 198 8) ) .

7
Failing to enforce this requirement would allow a
court to guess as to what was in the minds of the
grand jury at the time they returned the indictment.
Such guessing would deprive the defendant of a basic
protection that the grand jury was designed to secure,
by allowing a defendant to be convicted on the basis
of facts not found by, and perhaps not even presented
to, the grand jury that indicted him. We may only
guess whether the grand jury received evidence of, and
actually passed on, [the missing element] . . . . Re-
fusing to reverse in such a situation would impermis-
sibly allow conviction on a charge never considered by
the grand jury.

Id. (internal citations omitted).

Further, a missing element fails to "properly allege an of-

fense against the United States." United States v. Morrison,

536 F.2d 286, 289 (9th Cir. 1976); see also United States v.

Carll, 105 u.s. 611, 613, (1881) (holding that an indictment

with missing elements fails to charge the defendant with any

crime). An indictment must fall in response to a motion to dis-

miss if it fails to contain "the elements of the charged offense

in sufficient detail to . ensure [the defendant] that he is

being prosecuted on the basis of facts presented to the grand

jury . " United States v. Rosi, 27 F.3d 409 (9th Cir.

1994) .

In Armstrong's case, the trial judge's instructions to the

jury included all elements of the offense. However, a missing

-element "generally constitutes a fatal defect" that can_not be

cured through a j~ry instruction, United States v. Keith, 605

F.2d 462, 464 (9th Cir-. 1979), because a "completely -missing. es-

8
sential element" leaves ~nothing for a petit jury to ratify,"

United States v. Hooker, 841 F.2d 1225, 1232 (4th Cir. 1988).

The jury instruction worked to constructively amend Armstrong's

indictment because the difference between indictment and proof

was absolute; that is, it is impossible to know whether the

grand jury would have indicted Armstrong for the crime proved.

See United States v. Reese, 2 F.3d 870, 891 (9th Cir. 1993).

Constructive amendments to the indictment constitute reversible

error. See United States v. Pisello, 877 F.2d 762, 765 (9th

Cir. 1989). Fatally defective indictments are not amenable to

harmless error review. See United States v. Spruill, 118 F.3d

221, 227 (4th Cir. 1997). Armstrong's indictment unquestionably

omitted an essential element of an offense under § 23~4 and Arm-

strong complained of this omission in the trial court. For

these reasons, he requests that this Court reverse his convic-

tion on the § 2314 counts.

2. Cotton analysis for forfeited claim.

Prior to Cotton, Armstrong would raise his claim of a de-

fective indictment for the first time on appeal under the legal

fiction that the defect deprived the trial court of jurisdic-

tion. u.s. LEXIS 3565 at *10. See, e.g., united States -v.

Godinez-Rabadan T No. 01-10-455, u. S. App. LEXIS 8589 (9..t h Cir.

May 3, 2002) i Uni ted States v-. Geiger, 263 F. 3d 1034, 103.9 (9th

9
Cir. 2001); and United States v. Ross, 206 F.3d 896, 899 (9th

cir. 2000). Post-Cotton, the inquiry has been refined to a sim-

pIe plain error analysis under Fed. R. Crim. P. 52(b). u.s.


LEXIS 3565 at *13.

[B]efore an appellate court can correct an error not


raised at trial, there must be (1) error, (2) that is
plain, and (3) that affects substantial rights. If
all three conditions are met, an appellate court may
then exercise its discretion to notice a forfeited er-
ror, but only if (4) the error seriously affects the
fairness, integrity, or public reputation of judicial
proceedings.

Id. (internal citations omitted). Cotton is analogous to the

instant case because both concern the failure of an indictment

to set forth all elements of an offense. See id. at *8. In

this context, the fact that an error existed and that it was

plain was not in dispute. See id. at *14. The third element,

an effect on substantial rights, ~usually means that the error

must have affected the outcome of the proceedings." Id.

Armstrong was sentenced prior to this Court's en bane deci-

sion in United States v. Buckland, No. 99-30285, U.S. App. LEXIS

8738 (9th Cir. January 18, 2002). Under the law in effect at

the time of sentencing, the effect of the travel frau~ convic-

tion was too allow the district court to shoehorn a wire fraud

sentence under the higher 10-year statutory maximum sentence for

travel -fraud. Indeed, the sentencing court found a total loss

of approximately $65 million, but of that amount, less than $1.5

10
million (approximately two percent) was even arguably attributed

to travel fraud. For this reason, the error affected the dis-

trict court proceedings and therefore affected substantial

rights.

The § 2314 counts were hotly contested at trial and on ap-

peal. They were not a mere adjunct to the broader wire fraud

issues. As an example, despite the mere two percent contribu-

tion of any travel fraud violation to the total loss amount, the

government argued during sentencing and at the first appeal

hearing that the fraud was uin the inducement" and in the so-

licitation of clients. Appendix pp. 9, 10. The original in-

dictment contained seven counts of § 2314 violations; four of

those counts were reversed on appea~ because of insufficient

evidence.

The question of whether or not an error seriously affects

the fairness, integrity, or public reputation of judicial pro-

ceedings is amorphous. See Engle v. Isaac, 456 U. S. 107, 135

(1982) (characterizing the plain error analysis as a Uvague in-

quiry"). In this case, sentencing upon the unindicted travel

fraud counts nearly doubled Armstrong's sentence from fLve to

nine years. The Court should have no little doubt that this is-

sue meets the high s-tandard of a plain error analysis. For this

reason, Armstrong requests that this error be noticed and that

hi~ § :2314 convictions be reversed.

11
D. The district court improperly applied U.S.S.G § 5Gl.2
py failing to determine and assess the sentence for
the count carrying the highest statutory maximum.

The calculation of a sentence under the Guidelines is a

step-by-step process. See generally United States v. Calozzo,

125 F.3d 687 (9th Cir. 1997). The Guidelines set forth the

steps in the sentencing sequence:

(a) Determine the. . offense guideline section


. applicable to the offense of conviction.

(b) Determine the base offense level . .

(c) Apply the adjustments as appropriate related to


victim, role, and obstruction of justice . . .

(d) If there are multiple counts of conviction, re-


peat steps (a) through (c) for each count. Apply
Part D of Chapter Three to group the various
counts and adjust the offense level accordingly.

(g) Determine the guideline range in Part A of Chap-


ter Five that corresponds to the offense level
and criminal history category determined above . .

U.S.S.G. § 1.lB (emphasis added). Step (d) of this process re-

quires that the sentencing calculus be performed for each count,

not just the one appearing to result in the longest sentenc-e.

The error is minor when the count offering the longest sentence

happens to be the count with the highest statutory maximum. The

error_is significant, however, when the count with the highest

12
statutory maximum is not the count with the highest calculated

sentence. That is the precise situation confronting Armstrong.

In its well-reasoned opinion concerning the world Trade

Center bombers, the Second Circuit articulated the steps to cal-

culate a sentence on multiple counts of conviction:

[T]he Guidelines prescribe a precise regime for the


decision as to consecutiveness of terms imposed on
multiple counts. unless the offense statute requires
consecutiveness, the sentencing judge first calculates
the total punishment called for by the Guidelines.
Next, the sentencing judge notices whether that total
punishment called for by the Guidelines is within or
above the statutory maximum for the count carrying the
highest maximum. If the total punishment is less than
the highest count maximum, the judge first imposes the
total punishment on that count, then imposes the total
punishment, up to the statutory maximums, on all other
counts, and then specifies that the sentences on the
other counts run concurrently with the sentence on the
count carrying the highest maximum.

United States v. Abdel-Rachman, 189 F.3d 88, 173-74 (2nd Cir.

1999) (internal citations omitted) (emphasis added); see also

United States v. Archdale, 229 F.3d 861, 870-71 (9th Cir. 2000).

The Abdel-Rachman opinion correctly recognizes the requirements

and the sequence of the sentencing amalgam. The emphasized por-

tion of the above quotation specifies that the sentencing court

must first impose the sentence calculated for the count with the

highest statutory maximum. In Armstrong's case, the judge did

not even calculate this sentence, much lesa impose it.

A fair reading of the Guidelines, in recognition of the

rower dollar amounts involveQwith the travel fraud counts and

13
the inapplicability of certain enhancements, would proscribe a

24-month sentence for Armstrong on these counts. The wire fraud

counts, while showing a Guideline sentence of lOB months, are

capped at 60 months by statute. The proper sentencing procedure

would have the judge first sentencing on the count with the

highest statutory maximum--travel fraud--at 24 months. Next,

the 60-month wire fraud sentence is assessed. Under the provi-

sions of § 5G1.2, this sentence is to run consecutive to the

travel fraud sentence to provide an 84-month total sentence.

In Armstrong's case, the sentencing judge did not start

with the count having the highest statutory maximum; instead, he

started with the count having the highest calculated sentence.

He first assessed a lOB-month sentence for wire fraud, appar-

ently ignoring the 60-month statutory maximum and adopting the

120-month maximum of travel fraud. He then sentenced for travel

fraud to run concurrent with the lOB-month wire fraud sentence.

This error in the application of the Guidelines prejudiced

Armstrong by giving him a longer sentence than he would have re-

ceived under a proper sentencing procedure and resulted in his

receiving a sentence for wire fraud in excess oE the statutory

maximum. For these reasons, Armstrong requests that this Court

reverse and remand for resentencing.

14
:IV. CONCLUSiON

For the reasons advanced above, Armstrong respectfully re-

quests that this Court reverse his conviction on counts 1, 2,

and 3, order the district court to vacate his conviction on

those counts and dismiss them, and remand for resentencing on

the remaining counts.

Respectfully submitted,

".-.....-L---:-........iIA~·
~-~
+ ~,~7J
Connie C. Armstrong, Jr.

v• CERTIFICATE OF SERVICE

A true and correct copy of the foregoing petition was

mailed via U.s. Mail, certified receipt requested, on May 28 ,

2002 to Eb F. Luckel, U. S. Attorney's Office, Criminal Divi-

sian, 450 Golden Gate Ave, Suite 215, San Francisco, CA 94102.

15
APPENDiX

UNITED STATES OF AMERICA, Plaintiff-Appellee,

v.

CONNIE ARMSTRONG, JR., Defendant-Appellant.

No. 00-10399

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

2002 U.S. App. LEXIS 6932

April 8, 2002 **, Submitted ** This panel unanimously fmds this case suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).

April 15, 2002, Filed

NOTICE: [*1] RULES OF THE NIN1H CIRCUIT COURT OF APPEALS MAY LIMIT CI-
TATION TO UNPUBLISHED OPINIONS. PLEASE REFER TO THE RULES OF THE
UNITED STATES COURT OF APPEALS FOR THIS CIRCUIT.

PRIOR HISTORY: Appeal from the United States District Court for the Northern District of
California. D.C. No. CR-94-00276-CAL. Charles A. Legge, District Judge, Presiding.

DISPOSITION: AFFIRlVIED.

COUNSEL: For UNITED STATES OF AMERICA, Plaintiff - Appellee: Ronald W. Smetana,


USSF - OFFICE OF THE U.S. ATTORNEY, Barbara J. Valliere, AUS, U.S. Attorney Office,
San Francisco, CA.

For CONNIE ARMSTRONG, JR., Defendant - Appellant: David A. Nickerson, Esq., San
Rafael, CA.

JUDGES: Before: -BROWNING, KLEINFELD, and GOULD, Circuit Judges.

OPINION: MEMORANDUM *

- - - - - - - - - - - - - - - - - -Footn.otes- - - - - - - - - - - - - - - - - -

* This disposition is not appropriate for publication and may not be cited to or by the courts of
_-this circuit except as may be-provided by Ninth Circuit Rule 36-3.

Appendix 1
- - - - - - - - - - - - - - - - -End Foomotes- - - - ":' - - - - - - - - - - - -

Connie Armstrong, Jr. appeals his 108-month sentence imposed by the district court at resentenc-
ing for his conviction on multiple counts of inducing others to travel [*2] in interstate com-
merce as a part of a scheme to defraud in violation of 18 U.S. C. § 2314 and wire fraud in
violation of 18 U.S.C. § 1343. We have jurisdiction pursuant to 28 U.S.C. § 1291 and 18 U.S.C.
§ 3742(a). We review the district court's interpretation and application of the Sentencing Guide-
lines de novo, and its factual findings regarding the calculation of loss for clear error. United
States v. West Coast Aluminum Heat Treating Co. 265 F.3d 986, 990 (9th Cir. 2001). We affrrm.

Armstrong fust contends that the district court miscalculated the amount of loss upon which it
based a 17-level upward adjustment to his sentence pursuant to U.8.S.G. § 2Fl.l(b)(1)(R). Based
on the evidence before it, the district court did not clearly err by fmding that the amount of loss
to Armstrong's victims exceeded $ 40 million. See id. at 991-92 (stating the court need only
make a reasonable estimate of the loss, given the available information).

Armstrong further contends that the district court violated Apprendi v. New Jersey, 530 U.S.
466, 147 L. Ed. 2d 435, 120 S. Ct. 2348 (2000) [*3] by failing to submit the amount of loss to
the jury. Because Armstrong's 108-month sentence was less than the statutory maximum, we frod
this contention unavailing. See 18 U.S.C. § 2314 (prescribing a maximum sentence often years);
West Coast Aluminum Heat Treating Co., 265 F.3d at 994.

AFFIRMED.

Appendix 2
DAVID A. NICKERSON
A1j'ORNJiY AT l-AW
454 las Gall in"" Ave. Suite 183
SAN RAFAEL. CALlFORN1A 94903-J6t8
(415) 507·9097
I:AX: (415) 507·9098

April 16, 2002

Chip Armstrong
Reg. # 88762-011 t 8-5
F.C. 1. Seagoville
P.O. Box 9000
Seagoville, Texas, 75159-9000

Dear Chip:

I have received in today's mail a copy of the enclosed opinion from the Ninth
Circuit. As you can see, the court dumped the case without mlJch trouble. This is
another example of the court having decided that it wasn't going to do any for you and.
therefore, saying as little as possible in an unpublished opinion. I don't understand why
it took them almost one year to write this three paragraph opinion.

I think this is the end of the road. At least for me. as court appointed counsel, it
is. There is nothing left to say that hasn't been said and no court to further appeal to
that would care. Certainly the U.S. Supreme Court wouldn't care after the Ninth
Circuit's unpublished opinion of three paragraphs.

If you want to file anything else your only rea~ avenue to a court would be by way
of a section 2255 motion, although off the top of my head I don't see any real 2255
issues. That motion would have to be filed in the district court and l of course, since
Legge is gone now. it would be assigned to another judge at random who would know
nothing about your case and probably care even less. 1hate to be so negative about
things but that is the reality of the situation. I don't know what else to say but IIgood
ll
luck and 1hope that you get out of prison as soon as it possible and that you get on
with your life when you do.

Very truly yours,

DAVID NICKERSON

Appendix 3
Docket as of February 27 t 20029:12 pm Web PACER (v2.3)

u.s. District Court


U.S. District for the Northern District of California (S.F.)

CRIMINAL DOCKET FOR CASE #: 94-CR-276-1

USA v. Armstrong, et al

Filed: 06/27/94

Case Assigned to: Judge Phyllis J. Hamilton

Dkt# in other court: None

CONNIE C. ARMSTRONG, JR. Garrick S. Lew


defendant [term 09/21/95]
[term 08/29/97] [COR LD mc cj a]
Solomon Wallack
[term 08/29/97]
[COR LD NTe cja]
Minami Lew & Tamaki LLP
Union Square
360 Post St
8th FIr
San Francisco, CA 94108-4903
(415) 788-9000
John Milano
[term 08/26/94]
(415) 474-3100
[COR LD mc ret]
507 polk_Street
San Francisco, CA 94102
Harold Rosenthal
(term 08/29/96]
(4~5) 431-3472
[COR LD NTC cj a]
523 Octavia St
San Francisco, CA 94102
David A. Nickerson
[COR LD me cja]

Appendix 4
454 Las Gallinas Ave
183
San Rafael, CA 94903-3618
(415) 507-9097
Chester L. Brown
[term 08/29/97]
[COR LD NTC cja]
2450 Broadway
Ste 550
Santa Monica, CA 90404
(310) 315-6315
Michael H. Murray
[term 06/01/95]
[COR LD NTC ret]
Law Offices of Michael H.
Murray
1989 Santa Rita Road
Ste 238
Pleasanton, CA 94566-4751
925-924-1440
Pending Counts: Disposition
18:2314 & 2 Stolen Property & ON RESENTENCING: Counts 1 and 7
Aiding and Abetting 15 months imprisonment to
(1) run concurrent with counts 2-6,
8-14, and 19-21; 36 months of
TSRj $100.00 SA
(1)
18:2314 & 2 Stolen Property & ON RESENTECING: imprisonment:
Aiding and Abetting 108 months to run concurrent
(2) with counts 1 and 7j 36 months
TSRi SA $750.00 restitution
is $1,000,000.00
(2 )
18:2314 Stolen Property ON RESENTECING: imprisonment:
(3) 108 months to run concurrent
with counts 1 and 7j 36 months
TSRi SA $750.'00 restitution
is $1,000,000.00
(3)
18:1343 & 2 Wire Fraud & ON RESENTECING: imprisonment:
Aiding and Abetting 108 months to run concurrent
(4 - 5) with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(4 - 5)
18:1343 Wire Fraud ON RESENTECING: imprisonment:
(6) 108 months to run concurrent
with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(-6 )
18:~343 & 2 Wire Fraud & ON RESENTENCING: Counts 1 and 7
Aiding and Abet ting 15 months imprisonment to
(7 ) run concurrent with counts 2-6,
8-14, and 19-21; 36 months of
TSRi $100.00 SA
(7 )

Appendix 5
18:1343 & 2 Wire Fraud & ON RESENTECING: imprisonment:
Aiding and Abetting 108 months to run concurrent
(8 - 10) with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(8 - 10)
18:1343 Wire Fraud ON RESENTECING: imprisonment:
(11 - 14) lOB months to run concurrent
with counts 1 and 7; 36 months
TSR; SA $750.00 restitution
is $1,000,000.00
(11 - 14)
18:1343 Wire Fraud ON RESENTECING: imprisonment:
(19 - 21) 108 months to run concurrent
with counts 1 and 7; 36 months
TSRi SA $750.00 restitution
is $1,000,000.00
(19 - 21)
Offense Level (opening): 4
Terminated Counts: Disposition
18:2314 & 2 Stolen Property & ON RESENTENCING: reversed by
Aiding and Abetting the 9th circuit on counts 15,
(15) 16, 17 and 18
(15)
18:2314 Stolen Property ON RESENTENCING: reversed by
(16 - 18) the 9th circuit on counts 15,
16, 17 and 18
(16 - 18)
Offense Level (disposition): 4
Complaints:
NONE
U. S. Attorneys:
Eb F. Luckel
(415) 556-4783
Rm 215
[COR LD NTC]
U S Attorney's Office
Criminal Division
450 Golden Gate Ave
San Francisco, CA 94102

DOCKET PROCEEDINGS

DATE # DOCKET ENTRY

-0/27/94 1 INDICTMENT by AUSA Eb F. Luckel. Counts filed- -against

Appendix 6
.J t..i ',I,,-'~ 6·- 9' 4 T U'E 1:3:' :;s,~ 1- Fl. W 0' F F ~:C'E p'. 1":;:

1
2
CQtJN'i' 'oNE' (lO ,U~SIiC.H 2'314., 2)
3"'
:rhe,' Grand' Jutty charges- that·:
..
On or Dbaut. September' 27, 19:09, 1" the Nor,thern
-S
. D1~,trlc~ of' 'cal1fornl" and' elsevhe~e',
6 'j'

CONNIE c. ARMSTRONG" J'R." and.


1: RICJWU) A. rowus,'
B' detB,na~nt, ha,re,ln. h~;,:t~9: ~e~l$ed' a~a lnt~r\d~f1,\l-,t~ ,4evlse a
9 scheme· 'ant! a.E't.!tlce.' tc,"d~I:raUd and t,o obtain' money by means of
"
'~O ,false ane!' l~,uc3ulent: prel:ense.,repr~sf!'n1iat:~~:ins andpromlses"
,11 ',did knowln'gly and: tor the pur~se 'Qf exe.cut:.ll'1; the, sch~~.~'i
12 caus~ 'atu3 induce representatives o( Commercial'Cred1t:. Drou'p".:
13 .Ino. to trave 1:. in int&tata~o co1llrtlerce trom, Bql~.1more, tiQt tc
14' . San rranc.tsco~ CA, ,'!o,r a ,1I1eeti!1~ \p1th BamUtcln 'l'Bft:
15 -'r.epresent,8.t,lvellll ~oncernlnq HBmiitol\ Taft's ,propO&'&'l to ,l)roV~'de
16 payrc;ll1 ta~ 's,rql~e8 to,~o_ra'J..al' Crec1J.,'~..-
...... '-17' 'C,QUNJl,NQ.f ,U'S U.S •.C.. ..- 2314,. ~),
t 18 .' Tb~ ,~and, -rury ftltth.er. charges that:
'~:9, 'On D~ a!,ou~' Apr: hit.', ~ 99o~ in the Nor the rn 1')1s tt"l,c~
20 ~f, C~lltoi~{a:.nd elsewnerai
21 CONNI! C~, ,'AJUiSTRONG,. iiR., 'and
IUCIWlD A. 'rOIrlLES,t,
2'
deJen,Jant9.hereln; h,l\Vi~9 devh.e4 a'nd :J.nt'endlng '.to' de.vb,e 11
23,
24'
·sch~me ~nc1 art.1U~e' to defraud and '.to obt.a,iI\,.tl\~ney"})y tn.e.ani! o f ' , -
e:als~: anti ,fraudulent pre~enselJ' repraeeritaUons- arid pr,om.l~a'i!Jt.
25'
26, I Kn ~ C.T MIN .~
(Atms,tr91i~' ,royles) 11

:.'.

Appendix 7
p,~ 1 ~,

1
~ic!, •kl\otJ.1ngiy IlnCl fot, ~h~, purpose ,!~,eKecuUng the sc:hcme,

"
2
, ,cause :sn41nduCcO ,represent'at1ves ()f ,~:. 'R. Donnel~ev ~ _Sons
:3
t;olUpany to traV¢l in in,terstate CODm\erc:e ,~r~ chicago, oiL, 'to
4
: 'Sa" rran,c'1sCQ-, cA, tor ,a ~et,1.n9 YUh, DamUton.:i'at'l:
'S:
,r'epresent::a.t"lv8s concerning B!I1I11ton'1'aft t lii })I,"oposal to ,:prov,i~e
'6 -. . '. .

payroll tl!'~ se:rY.lc:~a t~.• ~. R,IlQnnellev,'


'7-
, cOQW' THan,: '[1~
tJ,S.,c:, :. 23,1.1:
a
"
, ,'~he Grand' Jury •fLir,ther 'charges that,!
On or'about'i1une 5~199~, in, 'the Northern ,l)1s,crlct' or
10'
, ca;U~l:t11:1l 8n<S:,~1,G~whe:re,
11
CONNts C. ARHSTRONS,--JR.', ,.. :,' ~.-.
1'2',
, det'endant herein, baying devised an4 :lnter'1C11'n(r~t.Q,"c1eviroe' a' .t,'
13
, 5'Qheme "snd 'art:ll'1ce :to :def,rlJu4: and to obtdn 1lIOney, by 'tIleans ~,
14,
,fals., an,'" "ra\llSuieri~ ~n'l:enses'" f,~~resen~at:ions 'and :pr,omises"
,15
di~. knQWln~lY ana for' the PU~S8 o(executlng: the scheme,
1,6
causa ~nd .1nduc,flI ,~ep~esen~4tive!l,'ot, Sco~t ~'Iper COmpany ,to'
...... 17
tra.vei ',In, inter.-ta'tv c:ommerCtt trom',llhU;llIde1ph'ill, PA, to San
,

,~
18
r~arlchcoi:" ,C'AI :for, a meet,ln1ijlth' Haiul,l~,Cri\:,TL'ltt tepresenta~lves
:L9
c'C)~cern11'\9 H8ldi~on, 'la'ft.' S "pr~pos,al to -i)t~ov1,de :pay~oil tax
20
~etvlc.eato, Scott, Pa~'t, ColtlpanY:.
21
21
II
;3 Il-
l/
24 ."
: 1/
tif
26, I N D,t ~ ~ K I'N'~
't:Atms trong & FO....le') .12

,. -.
,;--

.;

l
Appendix 8
_._-~---------,----------" .

1 FIRST, YOUR, -HO~OR', THAT I AM OFFENcE'll THAT 'WHAT' WE

,2, ARE STILL, HEARING IS, nMY REAL ,KIS~"1{E, WiLS.1(.ISJtJpsING THE
3 FUN.OS'. n.

,4 MR.,,' ARMSTRONG·ta, REAL MISTAKE .WAS LYI~G TO TI:IE

,5 CLIENTS TO GET 'THEIR MO~E:Y 'IN THE DOOR. HE 'KNEW· HE COULD,Nt:T'

6 'PAY., ,THE' TAXES. HE·, tt'OLD ,THEM -- 'KE ,TOLD us "ON THE WI,mESS' 'STAND
7 ~T·HE WAS ,AFRAID THAT .IF HE 'TOLD ·THDi ~HE'TRUTH, THE ,MONEY
B ,WOULD STOP· -'COMI}{G IN 'THE. DOOR 'AND'. THE COMPANY WOUL,D CLOSE.:

1'0. SEPARATE; THE CLIENTS ·FROM 'TRElR MO.NEy. SO I·T'S 'NO.r AaOU'!'

.11 t:~CTERI2i:NG THE' .RE~,'PI:ON.sHIP,., IT1 S' .Cf:>Nr:iuCT THAT HE

~2 COMM~TTEO AND 'THAT' HE AP~~ENTLY IS STILt ,RELUCTANT TO~AOMIT.

I·'M ·EQUALLY, '-OFFENDED BY' T~E EFFORT TO RELY ON ,THE

14 BONDS." AN ~F.FORT' TO' SAY THE DAMAGES SHOULD, SOM:EHO.W BE LESS.


is 'rtRst OF ~LLt THE PERTINENT ~SSUE, IS THE ,O~GE'TO
~6 THE vICTIMS,. ·TaE LOSS: T.O THE VrCTIMS,. 'THE EFFORT .TO· 'rA:KE, AS

17 'MR. ARMSTRONG DID .DURING 'THE· ,TRIAL" A .·f2 ... MILLION-DO~ .SO~Ih

18 muCH WAS S'tCUREO '·BY' THE: 'CATTr,;E" THE ,gO.-CALLED: ,FEEDER ~TTL.E',

,19 ANt) .$AY., '11I SHOULD' BE GIV.'E:N' .CREDIT, .fOR" THAT, II TO: TAKE.·A

20 1.S-MILLI..O N,-DotW BOND, WHICH 'W~S' ,-SECURED ·S·Y·, '~O' l'AaCELS OF

·il REAL· ,ESTA~E' 'THAT HE HAD 'BOUGHT· FOR UNPE~ .A MI,LLION' DOLLAR'S AND,

'~2' SA'Y, 11·1 ~HO~~Jj- ~E GI'VEf( 'CREDIT 'FOR THE, 'WliOlIE, THING,.·' ,IS ~IMPLY

23, INDICATIVE OF WHAT ',S 'HAPPEN'ED ,THROUGHOtrJ;' ,~H+S CA,~E.

24', MR... ARMST~ONG 'WILL, NOT FACE 'UP' '1'.0 WHAT. HE'S. DONE.
,p....,
t ·2,5 HE: .WILL 'NEV'ER FACE up:, TO WHA'j" HE:. S DONE~ HE AD)fITS PERHAPS

Appendix 9
Smetana: bn-ye~ and,:the, nextD:"lonth thCitswereri1t., In :othci words. when the whole thing
coiIapsesJ some were'paid, some wereri1: because 100% of-the money wasn't used for
tnat purpose. But~, who, got victimized"on a month-.tq-month basis' changed',. or
pllyroIL~,t9,~payr~11' so' thfit. .

Judge?: There werc"some who never go't~-nevcr got taken?

Smetana: That's'not con,ect.


J,udge,?:. Every:one'ofthe~ gaL:?

Smetana:, That',s correct, It rolled. 'The dUferencejs it's wh~re thejugg~knot stops. Itthe-~itjs:
~~sical cltairs~ Your· Hono'r.

I '.understood,there Wel'e'.some ,companies that always had 'their taxes paid..thoy


tC.quir¢dv~r.ific~tion and,so forth. Their ~es ~ always ,paid on .t.ime., '

Smetana:, Uhm; I believe,there were a oouple of."ofposieve-verlficliUon companies md.'in,


the end~ sorne:ofthose companies were· short, too~ 'But,; evenjf~ven ifthere: were
soti,le tha~ gotpaidJ 00% ofthe tiD1e.' tt's:sUU .a,m1Jsi.cal cbnirs:,game., .There ~s' ~{m not
enough money-tberetsalways '1, p'erson.:too, m'aJiy, 1. Chair' too few.,

lsri't:dt" yo~,po~i~on'tos j~t.to foHew/: up, on w}iat Y,au'ie' sayin~that thi$W~ ·1


scheme.:to defraud... .

Smetana:

,J so ,tba~ aJl the money·that flowe.d .through, W.hi1e tbis:scheme~ in .operation, is


) 1ainted.

Smetana:, '- Tha~'s:~e~~thB.t's'\'ylhat'\ve',offer in our bri'~f, YOllI Honor.

Judge,'?:, ,: An~;.;..but,·that~that-'~we]l:':"is there~~whatlaw,supports that theory:?' Let ,me· put ii.that,

' } ,way.
all
I.: don't .think I cHed. spe.elfie,law to' the Court-but H....it~it's a matter. that. uhi the

U
. rn.briey,taken.~.Wl\S fud,Qc.ed-you know"jt's-it'safrau...:the theory:is.a·fraud.to'tpe
: induceme)Jt ,That· ai,1 th,~ inoney thEit :was brought in:was 'brought'in WJ.der ,·talse
. pretensess,soall the mon~y ...· '

~y¢ tboughJev~ri thdugllthat Judge SHverrpan'says that ~~neY·,caine iil frdntpte-


existing:.clients.

Appendix 10
Docket SummaI)' Page 1 of2
1m.
. If you view the full docket online, you will be charged for 6 Pages $ 0.42

us Court of Appeals for the Ninth Circuit


Case Summary
Court of Appeals Docket #: 00-10399 Filed: 9/14/00
Nsuit: 0
USA v. Armstrong
Appeal from: Northern District of California (San Francisco)

Lower court information:


District: 0971-3 : CR-94-00276-CAL
court reporter: Leo Mankiewicz, Court Reporter

7/27/01 Calendar check performed [00-10399] (th)

8/6/01 Screening letter sent. [00-10399] (th)

4/8/02 SUBMITTED TO SCREENING PANEL 340. ( Oral) [00-10399]


[ 0 0 -10399] (th)

4/15/02 FILED MEMORANDUM DISPOSITION: AFFIRMED ( Terminated on the


Merits after Submission Without Oral Hearing; Affirmed;
Written, Unsigned, Unpublished. James R. BROWNING, Andrew
J. KLEINFELD, Ronald M. GOULD) FILED AND ENTERED
JUDGMENT. [00 -10399] (dv)

<1 / ?9/02 Received aplt's motion for enlargement of time to file a


PFR with suggestion for rehearing en banc; no service date.
(STAFF) (Note: aplt has counsel; sent copy of motion to
counsel) [00-10399] [4419215] [00-10399] (dv)

5/29/02 [4443161] Received original and 50 copies aplt's petition


for rehearing with suggestion for rehearing en bane of 15
pages with exhibits served on OS/28/02. (STAFF) (Note :
aplt has counsel sent pfr to counsel) [00-10399] (dv)

1/21/03 Referred to STAFF re: status of petition for rehearing.


[4443161-1] [00-10399] (ea)

1/31/03 [4643063] Filed original and SO copies Appellant Connie


Armstrong petition for panel rehearing and petition for
rehearing en banc of 15 pages with exhibits served on
OS/2 B/ 02). [ 0 0 -103 99] (dv)

~•. 1/31/ 03 Filed order ( James R. BROWNING, Andrew J. KLEINFELD,


Ronald M. GOULD, ) We grant apltis motion for an extension
of time to file a petition for panel rehearing and order
the brief received OS/29/02 filed. The panel has voted to
deny aplt's pfr and pfr en banco The full court has been
advise of the petition for rehearing en bane and no jUdge
has requested a vote on whether to rehear the matter en
baen. The petition for panel rehearing and the petition for
re~earing en bane are deneid. No further filings shall be

J I,v 10 5 ac'cepted in this closed appeal. [4643063-1] '[00-10399] (dv)

iO/03 ; ~[OO-10399l (dv)


.---/'
.::..::..- .

I!:=====P=A=C=E=R=S=e=r=v=i=c=e=Ce=n=t=e=r=====:il
http://pacer.ca9.uscourts.gov/cgi-binJreports.pl?CASENUM=OO-10399&puid=01053014084 5/15/2003