United States v. Joseph Orville Youpee

9 F.3d 1555 NOTICE: Ninth Circuit Rule 36-3 provides that dispositions other than opinions or orders designated for publication are not precedential and should not be cited except when relevant under the doctrines of law of the case, res judicata, or collateral estoppel.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. Joseph Orville YOUPEE, Defendant-Appellant. No. 91-30211. United States Court of Appeals, Ninth Circuit. Oct. 14, 1993. Before: WRIGHT, NORRIS, and HALL, Circuit Judges. ORDER 1 Joseph Youpee has moved to recall our mandate from the memorandum disposition filed on February 25, 1992. We requested a response from the government which has been received and considered. We grant the motion and vacate the judgment. We reverse his conviction and sentence and remand to the district court. 2 Youpee and Kevin Devereaux were convicted of burglary. Both appealed, claiming that the district court improperly instructed the jury on the definition of reasonable doubt. We affirmed Youpee's conviction, holding that the instruction was unconstitutional but did not constitute plain error. 3 Youpee moved to extend the time in which to petition for rehearing and to stay issuance of the…