United States v. Julian Galindo-Gallegos, AKA Jose Reyes-Olague, AKA Aurelio Garcia-Chairez, AKA Jose Olague Reyes , 255 F.3d 1154 ( 2001 )

255 F.3d 1154 (9th Cir. 2001)

UNITED STATES OF AMERICA, Plaintiff-Appellee,
v.
JULIAN GALINDO-GALLEGOS, aka Jose Reyes-Olague, aka Aurelio Garcia-Chairez, aka Jose Olague Reyes, Defendant-Appellant.

No. 99-50585

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted July 12, 2000--Pasadena, California
Filed March 27, 2001
Amended April 25, 2001
Second Amendment July 12, 2001

NOTE: SEE OPINION AT 244 F.3d 728.

Debra A. DiIorio, DiIorio & Hall, San Diego, California, for the appellant.

Kevin J. Kelly, Assistant U.S. Attorney, San Diego, California, for the appellee.

Appeal from the United States District Court for the Southern District of California, Irma E. Gonzalez, District Judge, Presiding, D.C. No. CR-98-02021-IEG

Before: Pamela Ann Rymer, Andrew J. Kleinfeld, and Richard A. Paez, Circuit Judges.

ORDER

1

The slip opinion filed March 27, 2001 and amended April 25, 2001, is amended as follows:

2

At slip opinion 5225, lines 4-6 of the text, delete the sentence, "Whether a person is `in custody' for purposes of Miranda is essentially a question of fact reviewed for clear error." Replace with: Whether a person is "in custody" for purposes of Miranda is a mixed question of law and fact warranting de novo review. Before Thompson v. Keohane, we reviewed whether a suspect was "in custody" for purposes of Miranda as a question of fact, for clear error, under People of the Territory of Guam v. Palomo. We have, since Thompson, reviewed de novo, as Thompson requires, without mentioning Palomo. A panel may overrule the decision of a prior panel when "an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point." To avoid future confusion, we expressly recognize that Palomo's clear error standard of review has been overruled.