United States v. Luis Anthony Rivera

Tenth Circuit

United States v. Luis Anthony Rivera

874 F.2d 754, 1989 U.S. App. LEXIS 6731, 1989 WL 52523

CourtCourt of Appeals for the Tenth Circuit

DecidedMay 19, 1989

Docket85-1768, 85-1771

StatusPublished

Cited by17 cases

This text of 874 F.2d 754 (United States v. Luis Anthony Rivera) is published on Counsel Stack Legal Research, covering Court of Appeals for the Tenth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. Luis Anthony Rivera, 874 F.2d 754, 1989 U.S. App. LEXIS 6731, 1989 WL 52523 (10th Cir. 1989).

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Opinion

Opinion of the Court on Rehearing En Banc; Frank H. Seay — J.

Before HOLLOWAY, Chief Judge, MCKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.

PER CURIAM.

This case was originally decided by a panel of this court, United States v. Rivera, 837 F.2d 906 (10th Cir.1988). We subsequently granted rehearing en banc limited to the issue of:

whether the Sixth Amendment and Due Process Clauses of the United States Constitution require that an indictment charging a continuing criminal enterprise must allege all offenses to be used at trial, thus showing that facts concerning such offenses were presented to the grand jury, in order for evidence of such offenses to be admissible at trial.

United States v. Rivera, 847 F.2d 660 (10th Cir.1988).

After oral argument before the en banc court, on September 18, 1988, we ordered supplemental briefing which directed the parties, among other things, to address an additional question stated as follows:

3. Is it sufficient for an indictment that charges a violation of 21 U.S.C. § 848 simply to allege in the language of the statute “a continuing series of violations,” or do the 5th and 6th Amendments of the United States Constitution (including the right to indictment clause of the 5th Amendment) require the indictment to describe the essential facts constituting each violation relied *755 upon tions? to establish the series of viola-

Following full consideration, the en banc court was evenly divided on the question as stated in paragraph 3 of the court’s September 18, 1988 Order Requesting Supplemental Briefing.

Thus, we next considered the narrower, original question of whether the trial court properly admitted into evidence uncharged offenses as substantive proof of the continuing series element of the continuing criminal enterprise charge. See 847 F.2d at 660. Again, after full consideration, the en bane court was evenly divided on the question of whether this indictment would support the introduction of evidence of uncharged offenses in order to prove the predicate offenses. Therefore, on this issue, the trial court is affirmed by an equally divided court. Accordingly, our judgment on this issue, found at 837 F.2d 914-921 (headnotes 6-20), is without precedent and is not binding on the trial court in this case. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708 (1960). The panel opinion otherwise remains undisturbed by the en banc court.

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Opinion of the Court on Rehearing En Banc; Frank H. Seay — J.

Before HOLLOWAY, Chief Judge, MCKAY, LOGAN, SEYMOUR, MOORE, ANDERSON, TACHA, BALDOCK, BRORBY, and EBEL, Circuit Judges.

PER CURIAM.

This case was originally decided by a panel of this court, United States v. Rivera, 837 F.2d 906 (10th Cir.1988). We subsequently granted rehearing en banc limited to the issue of:

whether the Sixth Amendment and Due Process Clauses of the United States Constitution require that an indictment charging a continuing criminal enterprise must allege all offenses to be used at trial, thus showing that facts concerning such offenses were presented to the grand jury, in order for evidence of such offenses to be admissible at trial.

United States v. Rivera, 847 F.2d 660 (10th Cir.1988).

After oral argument before the en banc court, on September 18, 1988, we ordered supplemental briefing which directed the parties, among other things, to address an additional question stated as follows:

3. Is it sufficient for an indictment that charges a violation of 21 U.S.C. § 848 simply to allege in the language of the statute “a continuing series of violations,” or do the 5th and 6th Amendments of the United States Constitution (including the right to indictment clause of the 5th Amendment) require the indictment to describe the essential facts constituting each violation relied *755 upon tions? to establish the series of viola-

Following full consideration, the en banc court was evenly divided on the question as stated in paragraph 3 of the court’s September 18, 1988 Order Requesting Supplemental Briefing.

Thus, we next considered the narrower, original question of whether the trial court properly admitted into evidence uncharged offenses as substantive proof of the continuing series element of the continuing criminal enterprise charge. See 847 F.2d at 660. Again, after full consideration, the en bane court was evenly divided on the question of whether this indictment would support the introduction of evidence of uncharged offenses in order to prove the predicate offenses. Therefore, on this issue, the trial court is affirmed by an equally divided court. Accordingly, our judgment on this issue, found at 837 F.2d 914-921 (headnotes 6-20), is without precedent and is not binding on the trial court in this case. Eaton v. Price, 364 U.S. 263, 80 S.Ct. 1463, 4 L.Ed.2d 1708 (1960). The panel opinion otherwise remains undisturbed by the en banc court.

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874 F.2d 754, 1989 U.S. App. LEXIS 6731, 1989 WL 52523, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-luis-anthony-rivera-ca10-1989.

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