                                                                           FILED
                           NOT FOR PUBLICATION                              DEC 27 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



UNITED STATES OF AMERICA,                        No. 10-10505

              Plaintiff - Appellee,              D.C. No. 4:08-cr-01567-DCB-
                                                 BPV-1
  v.

MARVIN RAY SCHULTZ,                              MEMORANDUM *

              Defendant - Appellant.



UNITED STATES OF AMERICA,                        No. 11-10086

              Plaintiff - Appellee,              D.C. No. 4:08-cr-01567-DCB-
                                                 BPV-2
  v.

JASON STEPHEN WALLACE,

              Defendant - Appellant.



                    Appeal from the United States District Court
                             for the District of Arizona
                     David C. Bury, District Judge, Presiding

                     Argued and Submitted December 8, 2011
                            San Francisco, California

        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Before: LUCERO,** CALLAHAN, and N.R. SMITH, Circuit Judges.


       Marvin Schultz and Jason Wallace appeal from the district court’s order

denying their joint motion to suppress and subsequent conviction and sentencing.

We have jurisdiction under 28 U.S.C. § 1291. We reverse.

       A district court cannot reject a magistrate judge’s credibility determinations

made in a magistrate judge’s recommendation on a motion to suppress without

conducting a de novo, live evidentiary hearing. United States v. Bergera, 512 F.2d

391, 392 (9th Cir. 1975). There is “no procedural burden on the defendant to

request that the district court take live testimony” in this circumstance. United

States v. Ridgeway, 300 F.3d 1153, 1157 (9th Cir. 2002). The district court’s

ruling, in rejecting the magistrate judge’s report “in its entirety,” rejects all

credibility determinations made by the magistrate judge. From a review of the

record, it seems that the magistrate judge made at least two credibility

determinations. He at least determined that Agent Winnecke’s testimony about

Saban’s Car Rental policy (conflicting with other police officers’ testimony) was

not truthful. He also questioned Agent Winnecke’s testimony about whether the



       **
              The Honorable Carlos F. Lucero, Circuit Judge for the Tenth Circuit,
sitting by designation.

                                             2
length of time the defendants’ vehicle was parked in a store parking lot was really

suspicious. Therefore, based on Bergera, we remand this case to the district court

to conduct an evidentiary hearing before rejecting the magistrate judge’s credibility

determinations.1

      At oral argument, Schultz requested that this court allow him to join in his

co-defendant’s argument regarding this issue, because he did not include the

argument in his briefs. This court “will not ordinarily consider matters on appeal

that are not specifically and distinctly argued in appellant’s opening brief.” United

States v. Ullah, 976 F.2d 509, 514 (9th Cir. 1992) (internal quotation marks

omitted). However, one exception to this rule is if a “failure to raise the issue did

not prejudice the defense of the opposing party.” Id.

      Here, the Government clearly will not be prejudiced in its defense of this

due process issue, because it fully briefed the issue in its Answering Brief to

Wallace. See also United States v. Hanley, 190 F.3d 1017, 1029 n.4 (9th Cir.

1999) (allowing a defendant to join in an argument not raised in his opening brief

because “the issue is not defendant-specific and the [G]overnment will suffer no



      1
        We express no opinion as to the merits of defendants’ motion to suppress
the evidence. Rather, our decision is limited to the procedure the district court
must follow if it disagrees with the magistrate’s recommendation and rejects a
credibility determination.

                                           3
resulting prejudice from our decision, as it has briefed the issue thoroughly”).

Thus, our disposition applies to both Schultz and Wallace.

      REVERSED and REMANDED.




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