UNITED STATES of America, Plaintiff-Appellee, v. Jario A. MEJIA, Defendant-Appellant

concurring and dissenting:

I dissent from Part II of the majority opinion but concur in Part III.

Mejia’s argument proceeds from the premise that an ideal procedure would have been for Judge Real to grant a continuance and hear live testimony from the officers. No doubt that would have been ideal, and I am somewhat at a loss to understand why the ideal did not become the reality. Nevertheless, I do not agree that reversal is required.

Mejia’s argument comes parlously close to suggesting that district courts simply cannot make proper decisions in suppression cases without seeing the witnesses. That, of course, is not true. See United States v. Raddatz, 447 U.S. 667, 677-81 , 100 S.Ct. 2406, 2413-15 , 65 L.Ed.2d 424 (1980); Campbell v. United States District Court, 501 F.2d 196 (9th Cir.), cert. denied, 419 U.S. 879 , 95 S.Ct. 143 , 42 L.Ed.2d 119 (1974). I do not overlook the Supreme Court’s footnote 7 in Raddatz, 447 U.S. at 681 , 100 S.Ct. at 2415 . However, I do not think that one should put very much weight on the dicta in that footnote. The agency proceedings alluded to by the Court do not, as far as I know, preclude the boards, which are making the ultimate decisions, from…

Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ.

OPINION

Jario Mejia entered a conditional guilty plea to the charge of possessing counterfeit currency, after the district court denied his motions to suppress (1) statements he made while in custody and (2) counterfeit currency seized from his home. The principal issue on appeal is whether the district judge committed a reversible error in refusing to continue the suppression hearing for one court day to permit two key witnesses to testify before him in person. We conclude that the refusal to grant a continuance requires vacation of the denials of the motions to suppress. Thus, under Fed.R.Crim.P. 11(a)(2), we must remand to permit Mejia to withdraw his guilty plea if he elects to do so.

I. BACKGROUND

After being arrested on an unrelated charge, Mejia admitted to possessing counterfeit currency and consented to a search of his home. During the search the currency was recovered. The issues at Mejia’s suppression hearing were: (1) whether Mejia voluntarily consented to the search of his home; and (2) whether he received Miranda warnings before making incriminating statements to detectives.…

69 F.3d 309 95 Cal. Daily Op. Serv. 8329 , 95 Daily Journal D.A.R. 14,391 UNITED STATES of America, Plaintiff-Appellee, v. Jario A. MEJIA, Defendant-Appellant. No. 94-50406. United States Court of Appeals, Ninth Circuit. Argued and Submitted April 4, 1995. Decided Oct. 26, 1995. Callie A. Glanton, Deputy Federal Public Defender, Los Angeles, California, for defendant-appellant. Erica Kelly Martin, Assistant United States Attorney, Los Angeles, California, for plaintiff-appellee. Appeal from the United States District Court for the Central District of California. Before: McKAY, * REINHARDT, and FERNANDEZ, Circuit Judges. Opinion by Judge REINHARDT; Partial Concurrence and Partial Dissent by Judge FERNANDEZ. OPINION REINHARDT, Circuit Judge: 1 Jario Mejia entered a conditional guilty plea to the charge of possessing counterfeit currency, after the district court denied his motions to suppress (1) statements he made while in custody and (2) counterfeit currency seized from his home. The principal issue on appeal is whether the district judge committed a reversible error in refusing to continue the suppression hearing for one court day to permit two key witnesses to testify before him…