United States v. Dwayne Straub

NOT FOR PUBLICATION
UNITED STATES COURT OF APPEALS FILED
FOR THE NINTH CIRCUIT JAN 25 2010
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
UNITED STATES OF AMERICA, No. 09-30234
Plaintiff - Appellee, D.C. No. 3:04-cr-00020-PA-6
v.
MEMORANDUM *
DWAYNE EDWARD STRAUB,
Defendant - Appellant.
Appeal from the United States District Court
for the District of Oregon
Owen M. Panner, District Judge, Presiding
Submitted October 15, 2009**
Portland, Oregon
Before: D.W. NELSON, KLEINFELD, and BYBEE, Circuit Judges.
This is defendant’s third appeal to this panel. In defendant’s second appeal,
he expressly sought “remand for trial on Counts 1, 3, 4, 5, and 6.” United States v.
Straub, 538 F.3d 1147, 1164 (9th Cir. 2008). In an opinion filed August 15, 2008,
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
we remanded to the district court on Counts 3 and 4 and “affirm[ed] the
convictions as to Counts 1, 5, and 6,” id. at 1166, explaining that defendant did
“not articulate[] any specific reasons why . . . the jury would not have convicted on
Counts 1, 5, and 6” even if the error at defendant’s first trial had been remediated,
id. at 1164. The government has since dismissed Counts 3 and 4, and defendant
now appeals the district court’s refusal to grant defendant a new trial on Counts 1,
5, and 6. We affirm.
“We have repeatedly held, in both civil and criminal cases, that a district
court is limited by this court’s remand in situations where the scope of the remand
is clear.” United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007) (quotation
marks, brackets, and citations omitted). The scope of our August 2008 remand was
clearly limited to Counts 3 and 4. The district court was therefore “precluded . . .
from considering” arguments relating to Counts 1, 5, and 6, id., and did not err in
refusing to grant defendant a new trial on those counts.
AFFIRMED.
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