United States v. Delgario Lemos-Mendoza

19 F.3d 31, 1994 U.S. App. LEXIS 12124, 1994 WL 56963

• Court: Court of Appeals for the Ninth Circuit
• Decided: February 25, 1994
• Docket: 93-30117
• Status: Unpublished

Opinion

19 F.3d 31

NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.
UNITED STATES of America, Plaintiff-Appellee,
v.
Delgario LEMOS-MENDOZA, Defendant-Appellant.

No. 93-30117.

United States Court of Appeals, Ninth Circuit.

Submitted Feb. 22, 1994.*
Decided Feb. 25, 1994.

Before: SCHROEDER, CANBY and WIGGINS, Circuit Judges.

MEMORANDUM**

Delgario Lemos-Mendoza appeals his conviction following jury trial for conspiracy and possession with intent to distribute cocaine in violation of 21 U.S.C. Secs. 841(a)(1), 846. Lemos-Mendoza contends the district court erred by denying his motion to suppress evidence of cocaine discovered in the vehicle he was driving because the government failed to prove he gave valid consent for the search. The government counters that our decision in a co-defendant's appeal is law of the case. We have jurisdiction under 28 U.S.C. Sec. 1291 and affirm.

The doctrine of law of the case "precludes a court from re-examining issues previously decided by the same court," and is applicable to co-defendants convicted at the same trial when the appeal of one co-defendant is decided prior to the appeal of another co-defendant. United States v. Schaff, 948 F.2d 501, 506 (9th Cir.1991); see also United States v. Tierney, 448 F.2d 37, 39 (9th Cir.1971) (law of case established on appeal by first defendant applied to suppression issue raised in separate appeal by codefendant).

Lemos-Mendoza and co-defendant Baltazar Garcia Lua were jointly tried. On appeal, Lua raised virtually identical arguments as Lemos-Mendoza raises here regarding the issue of consent to search. We rejected those arguments, holding that "[t]he district court did not err by finding that [Lemos-]Mendoza's consent was voluntary, and thus denying the motion to suppress." See United States v. Lua, No. 89-30124, unpublished memorandum disposition (9th Cir. May 20, 1991), cert. denied, 112 S.Ct. 608 (1991). This holding is the law of the case and governs our decision here. See Schaff, 948 F.2d at 506; Tierney, 448 F.2d at 39.

AFFIRMED.

* The panel unanimously finds this case suitable for decision without oral argument. Fed.R.App.P. 34(a); 9th Cir.R. 34-4

** This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3