                           NOT FOR PUBLICATION

                    UNITED STATES COURT OF APPEALS                            FILED
                            FOR THE NINTH CIRCUIT                              JAN 25 2010

                                                                          MOLLY C. DWYER, CLERK
                                                                            U.S. COURT OF APPEALS

UNITED STATES OF AMERICA,                        No. 09-30234

             Plaintiff - Appellee,               D.C. No. 3:04-cr-00020-PA-6

  v.
                                                 MEMORANDUM *
DWAYNE EDWARD STRAUB,

             Defendant - Appellant.


                    Appeal from the United States District Court
                             for the District of Oregon
                     Owen M. Panner, District Judge, Presiding

                           Submitted October 15, 2009**
                                Portland, Oregon

Before: D.W. NELSON, KLEINFELD, and BYBEE, Circuit Judges.

       This is defendant’s third appeal to this panel. In defendant’s second appeal,

he expressly sought “remand for trial on Counts 1, 3, 4, 5, and 6.” United States v.

Straub, 538 F.3d 1147, 1164 (9th Cir. 2008). In an opinion filed August 15, 2008,


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
        **
            The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
we remanded to the district court on Counts 3 and 4 and “affirm[ed] the

convictions as to Counts 1, 5, and 6,” id. at 1166, explaining that defendant did

“not articulate[] any specific reasons why . . . the jury would not have convicted on

Counts 1, 5, and 6” even if the error at defendant’s first trial had been remediated,

id. at 1164. The government has since dismissed Counts 3 and 4, and defendant

now appeals the district court’s refusal to grant defendant a new trial on Counts 1,

5, and 6. We affirm.

      “We have repeatedly held, in both civil and criminal cases, that a district

court is limited by this court’s remand in situations where the scope of the remand

is clear.” United States v. Thrasher, 483 F.3d 977, 982 (9th Cir. 2007) (quotation

marks, brackets, and citations omitted). The scope of our August 2008 remand was

clearly limited to Counts 3 and 4. The district court was therefore “precluded . . .

from considering” arguments relating to Counts 1, 5, and 6, id., and did not err in

refusing to grant defendant a new trial on those counts.

      AFFIRMED.




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