United States v. Winston Bryant McConney

delivered Parts I, II, and III of the opinion of the court.

GOODWIN, Circuit Judge, delivered Parts IV and V of the opinion of the court.

Winston McConney was convicted on stipulated facts of violating 18 U.S.C. § 922 (h) *1198 which prohibits a convicted felon from receiving firearms shipped in interstate commerce. His appeal challenges the denial of his timely motion to suppress evidence as illegally obtained. We took the case en banc for the specific purpose of resolving the issue of the appropriate standard of appellate review for the mixed question of law and fact of “exigent circumstances.”

I

On June 12, 1979, an indictment was filed in the United States District Court for the Northern District of California accusing McConney, and thirty-one other defendants, of violating title IX of the Organized Crime Control Act of 1970. This title, commonly known as the Racketeer Influenced and Corrupt Organizations Act (RICO), prohibits conducting or participating in the conduct of an enterprise through a pattern of racketeering activity. 18 U.S.C. § 1962 . The indictment identified the RICO “enterprise” as the Hell’s Angels Motorcycle Club.

On the day after the indictment was…

concurring in the judgment:

I agree with Judge Goodwin’s concurrence on the assumption that the reasoning applies only to contentions that constitutional rights have been violated. In cases not implicating basic constitutional rights I believe that institutional values are better served by applying a clearly erroneous standard of review when a trial judge has ap *1210 plied a correct legal standard to established facts.

NORRIS, Circuit Judge, with whom FLETCHER, Circuit Judge, joins, dissenting from the judgment:

Although I concur fully in Parts I, II, III, and V of the court’s opinion, I disagree with Part IV. I believe that the evidentiary record before us fails to support the conclusion that exigent circumstances justified the manner in which Agent Olson entered McConney’s home and that, accordingly, the judgment of the district court should be reversed.

I

Before proceeding to a de novo review of the trial judge’s determination of exigency, we must first review, under the clearly erroneous standard, the findings of fact on which such a conclusion was — or could have been — based. Because the trial judge made no findings of fact on the issue of exigency, we must as an…

728 F.2d 1195 UNITED STATES of America, Plaintiff-Appellee, v. Winston Bryant McCONNEY, Defendant-Appellant. No. 80-1012. United States Court of Appeals, Ninth Circuit. Argued and Submitted En Banc June 15, 1982. Decided Feb. 10, 1984. Sanford Svetcov, Chief, Asst. U.S. Atty., San Francisco, Cal., for plaintiff-appellee. Gilbert Eisenberg, Filippelli & Eisenberg, San Francisco, Cal., for defendant-appellant. Appeal from the United States District Court for the Northern District of California. Before BROWNING, WRIGHT, GOODWIN, SNEED, TANG, FLETCHER, ALARCON, NELSON, CANBY, BOOCHEVER, and NORRIS, Circuit Judges. 1 NORRIS, Circuit Judge, delivered Parts I, II, and III of the opinion of the court. 2 GOODWIN, Circuit Judge, delivered Parts IV and V of the opinion of the court. 3 Winston McConney was convicted on stipulated facts of violating 18 U.S.C. Sec. 922 (h) which prohibits a convicted felon from receiving firearms shipped in interstate commerce. His appeal challenges the denial of his timely motion to suppress evidence as illegally obtained. We took the case en banc for the specific purpose of resolving the issue of the appropriate standard of appellate review for the mixed…