U.S. v. REAL PROPERTY, 25445 VIA DONA CHRISTA

The opinion filed March 3, 1998 [ 138 F.3d 403], is amended as follows:

On slip opinion page 1734, under subheading C. [ 138 F.3d at 409] substitute the following, before text that reads, "Therefore, the law of the case doctrine. . . ."

Claimant's other assertions are not reviewable. In an unpublished decision by a previous panel, this court held that Claimant's due process argument was waived. Claimant asserts now that the panel's holding was erroneous because he raised his due process issue to the previous panel in his opening brief on appeal. He is correct about when he first raised this issue, but wrong about the effect of his failure timely to have raised it in the district court. In this case, we deem his failure at the district court level to be a waiver of the issue notwithstanding his untimely attempt to bring it to the previous panel's attention on appeal. See A-1 Ambulance Service Inc. v. County of Monterey, 90 F.3d 333, 337 (9th Cir. 1996) (holding that issues not raised in the trial court may be deemed waived).

With this amendment, the petition for rehearing, and the petition for rehearing en banc are DENIED.