United States v. Dario Dicesare, United States of America v

777 F.2d 543

UNITED STATES of America, Plaintiff-Appellee, v. Dario DiCESARE, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Kathleen FLANNERY, Defendant-Appellant. UNITED STATES of America, Plaintiff-Appellee, v. Jose MARIN, Defendant-Appellant.

Nos. 84-5013, 85-5021 and 84-5056.

United States Court of Appeals, Ninth Circuit.

Dec. 2, 1985.

Christine W.S. Byrd, Los Angeles, Cal., for plaintiff-appellee.

Stanley I. Greenberg, Los Angeles, Cal., Manuel Araujo, Santa Ana, Cal., for defendants-appellants.

Appeal from the United States District Court for the Central District of California.

Before GOODWIN, WALLACE, and REINHARDT, Circuit Judges.

ORDER AMENDING OPINION 1

The opinion filed in the above case on July 10, 1985, and reported at 765 F.2d 890 , is amended as follows:

2

The second full paragraph, left hand column, on page 901 of 765 F.2d is hereby deleted, and the following is inserted in its place:

3

We affirm DiCesare's conviction and vacate Marin's conviction and remand for a new trial. Since Flannery entered a conditional guilty plea pursuant to rule 11(a)(2), Fed.R.Crim.P., and has prevailed on appeal from the district court's denial of her pretrial motions for evidentiary hearings on the August and September entries, we vacate her conviction and remand so that she may withdraw her conditional guilty plea and stand trial. Since we find no merit to any of Flannery's other assigned errors, if she does not withdraw her plea and the district court finds, after a hearing, that the officers complied with the knock and announce statute or that their compliance was excused, the district court may re-enter the judgment of her conviction.