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UNITED STATES v. ALTENBURGER

No. 76-3241.

549 F.2d 702 (1977)

UNITED STATES of America, Plaintiff-Appellee, v. Michael ALTENBURGER, Defendant-Appellant.

United States Court of Appeals, Ninth Circuit.

Rehearing Denied March 31, 1977.

Attorney(s) appearing for the Case

Federal Public Defender, Thomas W. O'Toole, Phoenix, and Jo Ann D. Diamos, Asst. Public Defender, Tucson, Ariz., argued, for defendant-appellant.

Daniel G. Knauss, Asst. U. S. Atty., Tucson, Ariz., argued for plaintiff-appellee.

Before BARNES and KILKENNY, Circuit Judges, and EAST, District Judge.

OPINION

BARNES, Senior Circuit Judge:

Defendant appeals from a jury conviction of violating 18 U.S.C. § 1992: a knowing and wilful "attempt to disable, derail or wreck a train employed by the Southern Pacific Railroad in interstate commerce."

Plaintiff was observed at about 8:30 p. m. by a patrolman for the railroad placing "items" on the railroad track on the east bound main line. The patrolman testified he stopped defendant, read to him his...

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