United States v. Nikolai Amartseff

435 F.2d 1312, 1970 U.S. App. LEXIS 9659

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 21, 1970
• Docket: 24213
• Status: Published

Opinion

ORDER

PER CURIAM.

The mandate herein, issued on January 22, 1970, is recalled. The opinion herein, filed on December 22, 1969, is withdrawn. The cause is remanded to the district court for the limited purpose of considering whether, in view of Gutknecht v. United States, 396 U.S. 295, 90 S.Ct. 506, 24 L.Ed.2d 532 (1970), and Breen v. Selective Service Local Board No. 16, 396 U.S. 460, 90 S.Ct. 661, 24 L.Ed.2d 653 (1970), a judgment of acquittal should be entered.

If the district court determines that a judgment of acquittal should be entered it shall do so, and shall transmit a copy thereof to this court, whereupon this appeal will be dismissed. If the district court determines that a judgment of acquittal should not be entered, the cause shall then be retransferred to this court with a supplemental record of the proceedings on remand. The defendant may challenge such determination on the present record, as so supplemented, by filing a supplemental brief in this court within twenty days after the retransfer of the cause, no new notice of appeal being necessary. The Government will have twenty days to answer any such supplemental brief and defendant will have fourteen days thereafter in which to file a reply brief. If defendant does not file a supplemental brief within twenty days of the retransfer of the cause, the opinion heretofore filed will be reinstated with the added statement that defendant does not question the district court’s determination, on remand, that judgment of acquittal should not be entered.