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United States v. Terry

filed: November 18, 1993.

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE,
v.
MITCHELL ALLEN TERRY, DEFENDANT-APPELLANT.



Appeal from the United States District Court for the Southern District of California. D.C. No. CR 91-0097-GT. Gordon Thompson, Jr., District Judge, Presiding.

Before: John T. Noonan and Edward Leavy, Circuit Judges, and James M. Fitzgerald,*fn* District Judge. Opinion by Judge Leavy.

Author: Leavy

LEAVY, Circuit Judge:

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 evidentiary 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, 121 L. Ed. 2d 376, 113 S. Ct. 469 (1992).

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

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF CALIFORNIA

For the reasons elaborated in the court's Memorandum Decision and Order on Defendant's Motion to Suppress Statements, dated November 15, in United States v. Moran Garcia, Crim. No. 91-0845 GT (appended hereto),

IT IS ORDERED that, with respect to all criminal cases the captions of which bear the initials "GT," Rule 415 is supplemented as follows:

Rule GT-415. DECLARATIONS IN SUPPORT OF AND IN OPPOSITION TO CRIMINAL MOTIONS.

a) Declarations Required

Where a criminal motion requires a predicate factual finding, the motion shall be supported by a declaration. To contest the facts provided in support of such a motion, the opposition papers shall likewise be supported by a declaration, thereby placing material facts into dispute. The court need not grant an ...


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