United States of America, Plaintiff-appellee, v. Cruz Hector Nevarez-castro, Defendant-appellant, 24 F.3d 251 (9th Cir. 1994)

Before: BROWNING, FLETCHER, Circuit Judges, FITZGERALD^* 

ORDER

On April 29, 1994, the government filed a motion for summary reversal and remand for retrial. The government concedes that a juror drawn for the jury trial should have been excused for cause based on United States v. Allsup, 566 F.2d 68, 71-75 (9th Cir. 1977) and United States v. Turner, 558 F.2d 535, 538 (9th Cir. 1977).

Appellant Cruz Hector Nevarez-Castro objected to the government's motion which was heard on May 3, 1994 during appellate oral argument. Appellant's counsel desired an opportunity to criticize the trial judge for the manner in which jury voir dire was conducted and the procedure in which the jury panels are selected in the United States District Court for the Southern District of California. Counsel now requests that this court determine whether the arresting officer had probable cause for the arrest of Nevarez-Castro, although counsel also contends the trial judge denied Nevarez-Castro an adequate evidentiary hearing on the issue.

We now grant the government's motion to reverse the judgment of conviction and remand the case for a new trial. We decline on the present record to decide the issues of probable cause for arrest or the validity of the jury selection procedure of the United States District Court for the Southern District of California or any of the other issues raised on appeal.

SO ORDERED.