United States of America, Plaintiff-appellee, v. Gerald Frank Plunk, Defendant-appellant, 161 F.3d 1195 (9th Cir. 1998)

ORDER

Plunk's Motion to Accept Late-Filed Petition, Motion for Order Effective Nunc Pro Tunc, and Motion to Accept Over-length Petition are GRANTED. Plunk's Motion to Supplement the Record is DENIED.

The slip opinion filed August 28, 1998 [153 F.3d 1011], is amended as follows:1. Slip op. at 9706, second full paragraph, fourth sentence [153 F.3d at 1022].

The sentence beginning "Plunk, however, did not object ...." is changed to read: "Plunk, however, did not object to the admission of Speziale's identification testimony at trial."

2. Slip op. at 9715, first full paragraph, fourth line [153 F.3d at 1026].

Replace the second half of the paragraph, from "Standing alone, however ...." to the end of page 9715, with: "Plunk, however, stipulated before trial to the use of transcripts that identified him as one of the speakers. He did not object to the use of his name until the jury asked during deliberations to listen to certain portions of the tapes and the court indicated that it would play the tapes for the jury in the courtroom and again provide them with transcripts. Only then did Plunk propose alternative transcripts that substituted neutral terms for the speakers' names. The court reasonably rejected this request because a change in transcripts might mislead the jury. Instead, the court expressly advised the jury that the identification of speakers on the transcripts was not evidence of their identity. The court did not abuse its discretion in refusing Plunk's request and permitting the jury to view the transcripts.

For the foregoing reasons, Plunk's transcript-based challenge must fail."

With these amendments, the panel has voted unanimously to deny the petition for rehearing.

The suggestion for rehearing en banc will be dealt with in a separate order.

The petition for rehearing is DENIED.