United States v. Mitchell Allen Terry

Mitchell Terry (Terry) was convicted of possession of 1,000 grams or more of a liquid containing methamphetamine. He appeals, assigning as error the district court’s (1) denial of his motion for judgment of acquittal under Fed.R.Crim.P. 29 and (2) denial of his motion to suppress.

I. Denial of Motion to Suppress

The crux of Terry’s appeal on the denial of his motion to suppress is his assertion that the district court erred by denying him an evidentiary hearing. “ “Whether an eviden-tiary hearing is appropriate rests in the reasoned discretion of the district court.’ United States v. Walczak, 783 F.2d 852, 857 (9th Cir.1986).” United States v. Wardlow, 951 F.2d 1115, 1116 (9th Cir.1991), cert. denied, — U.S. -, 113 S.Ct. 469 , 121 L.Ed.2d 376 (1992).

In denying an evidentiary hearing, the district court relied on its General Order (G.O.) 384, which reads:

On December 9,1991, the district court set January 21, 1992, as the hearing date for pre-trial motions. On January 7,1992, Terry moved to suppress. On January 13, 1992, “upon learning” of G.O. 384, Terry’s counsel filed his own declaration in support of the motion. It states that counsel was informed by Terry that he did not…