Opinion · Court of Appeals for the Ninth Circuit

United States v. Jack Damian Welp

United States v. Jack Damian Welp, 469 F.2d 688 (9th Cir. 1972)

Type: Opinion
Court: Court of Appeals for the Ninth Circuit
Jurisdiction: Federal
Date: 1972-10-26
Topic: general

How later courts describe this case

clearly erroneous standard applied to findings of fact after suppression hearing

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Cited by: 10 opinions

UNITED STATES v. WELP,469 F.2d 688(9th Cir. 1972)

UNITED STATES OF AMERICA, PLAINTIFF-APPELLEE, v. JACK DAMIAN WELP,

DEFENDANT-APPELLANT.

No. 72-2308.

United States Court of Appeals, Ninth Circuit.

October 26, 1972.

Peter L. Powers, Weatherford, Thompson, Horton Jordan P. C., Albany, Or., for defendant-appellee Citizens Valley Bank.

Sidney I. Lezak, U.S. Atty., Portland, Or., for defendant-appellee United States of America.

Jack Damian Welp, pro per.

Appeal from the United States District Court for the District of Oregon.

Before HAMLIN and DUNIWAY, Circuit Judges, and JAMESON, District Judge.^fn*

PER CURIAM:

[1] A search incident to an arrest for robbery of the Citizens Valley Bank, Shedd, Oregon, revealed $369.00 cash on Welp's immediate person. Welp was subsequently tried and convicted of that bank robbery, and we affirmed. United States v. Welp,446 F.2d 867(9th Cir. 1971).

[2] The money in question was turned over to the said bank. Appellant filed a petition with the District Court seeking the return of the money to him. After a hearing, the District Court dismissed appellant's petition, having found that the $369.00 was a product of the bank robbery, and belonged to the bank. Welp appeals from this determination.

[3] Questions of fact determined by the trial judge must be upheld on review unless "clearly erroneous." Campbell v. United States,373 U.S. 487, 493, 83 S.Ct. 1356, 10 L.Ed.2d 501 (1963); United States v. Page,302 F.2d 81, 85 (9th Cir. 1962). A "definite and firm conviction" that a mistake was committed below is a prerequisite to appellate reversal. United States v. United States Gypsum Co.,333 U.S. 364, 395, 68 S.Ct. 525, 92 L.Ed. 746 (1940).

[4] Applying these standards we hold that under the facts of this case the judgment must be affirmed.

[5] It is so ordered.Page 689

Honorable William J. Jameson, Senior United States District Judge, District of Montana, sitting by designation. ↩