United States v. Julian Galindo-Gallegos, AKA Jose Reyes-Olague, AKA Aurelio Garcia-Chairez, AKA Jose Olague Reyes

ORDER The slip opinion filed March 27, 2001 and amended April 25, 2001, is amended as follows: At slip opinion 5225, lines 4-6 of the text, delete the sentence, “Whether a person is ‘in custody’ for purposes of Miranda is essentially a question of fact reviewed for clear error.” Replace with: Whether a person is “in custody” for purposes of Miranda is a mixed question of law and fact warranting de novo review. Before Thompson v. Keohane, we reviewed whether a suspect was “in custody” for purposes of Miranda as a question of fact, for clear error, under People of the Territory of Guam v. Palomo. We have, since Thompson, reviewed de novo, as Thompson requires, without mentioning Palomo. A panel may overrule the decision of a prior panel when “an intervening Supreme Court decision undermines an existing precedent of the Ninth Circuit, and both cases are closely on point.” To avoid future confusion, we expressly recognize that Palomo’s clear error standard of review has been overruled.