Unpublished Disposition, 907 F.2d 155 (9th Cir. 1988)

No. 88-5291.

United States Court of Appeals, Ninth Circuit.

Before GOODWIN, Chief Judge, CYNTHIA HOLCOMB HALL, Circuit Judge and ALFREDO C. MARQUEZ^** , District Judge.

MEMORANDUM^*** 

Jose Henry Castellanos appeals his conviction, after a jury trial, for possession with intent to distribute cocaine, in violation of 21 U.S.C. § 841(a) (1). We affirm.

DISCUSSION

Defendant-Appellant Jose Castellanos was convicted, after a jury trial, of possession with intent to distribute four kilograms of cocaine (count 2 of the indictment). The count carries a minimum mandatory sentence of five years. The jury was unable to reach a verdict on count 1, conspiracy to possess and distribute cocaine, in violation of 21 U.S.C. § 846.

Castellanos moved for a new trial, arguing that the jury verdict was against the weight of the evidence, and was also invalid because the jury had deadlocked on the conspiracy charge. The district court initially denied, and later granted, Castellanos' motion.

This case is before this court for the second time. In United States of America v. Castellanos, CA 87-5243 ("Castellanos I "), the court reversed the district court's grant of a new trial. The court concluded that " [t]he trial court abused its discretion in granting the new trial in order to avoid imposing the mandatory sentence". Memorandum of Decision of May 20, 1988, at 5. In reaching this conclusion, the court observed that " [t]here was more than adequate evidence from which the jury could reasonably conclude beyond a reasonable doubt that the defendant was guilty of the substantive count". Id.

The court also rejected Castellanos' argument regarding incompatibility of the jury verdicts, stating that

[t]his court has held that a jury's inability to reach a verdict on one count is not the equivalent of an acquittal on that charge and does not, by definition, cause an inconsistent verdict.... Moreover, even if the verdicts could not rationally be reconciled, the conviction must stand.

Id. (citations omitted). The case was remanded for sentencing, which was carried out on August 15, 1988. Castellanos now appeals his conviction, raising the same two issues which were argued and decided in the government's appeal of the grant of a new trial.

The doctrine of "law of the case" will ordinarily prevent a court from reconsidering an issue which was previously decided by that court, or by a higher appellate court, in the same case. United States v. Maybusher, 735 F.2d 366, 370 (9th Cir. 1984), cert. denied, 469 U.S. 1110 (1985); Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 833 (9th Cir. 1982). The doctrine is discretionary; however, this court will re-examine a previous decision only where

the evidence on a subsequent trial was substantially different, controlling authority has since made a contrary decision of the law applicable to such issues, or the decision was clearly erroneous and would work a manifest injustice.

United States v. Houser, 804 F.2d 565, 568 (9th Cir. 1986) (quoting Moore, 682 F.2d at 834). None of those conditions is present here. Because the appeal presents only issues previously decided against Castellanos by this court¹ , his conviction is affirmed.

AFFIRMED.