Opinion
No. 72-1012.
October 23, 1973.
Michael D. Nasatir (argued), Nasatir, Sherman Hirsch, Beverly Hills, Cal., for appellant.
Shelby R. Gott, Asst. U.S. Atty. (argued), Harry D. Steward, U.S. Atty., Stephen G. Nelson, Asst. U.S. Atty., San Diego, Cal., for appellee.
Appeal from the United States District Court for the District of California; Gordon Thompson, Jr., Judge.
Before CHAMBERS, MERRILL, KOELSCH, BROWNING, DUNIWAY, ELY, HUFSTEDLER, WRIGHT, TRASK, CHOY, GOODWIN, WALLACE and SNEED, Circuit Judges.
ORDER.
A majority of the judges of this court in active service have voted to hear the above case en banc on December 11, 1973, at 1:30 P.M. If counsel desire to submit additional briefs, such briefs must be filed in the Clerk's Office of this Court no later than November 15, 1973.
Argument will be in Courtroom No. 1 in the United States Court of Appeals and Post Office Building, Seventh and Mission Streets, San Francisco.
(Circuit Judge Chambers will file a dissent to the foregoing order.)
I dissent from the order for en banc. At issue is the retroactivity of Almeida-Sanchez v. United States, 411 U.S. 903, 93 S.Ct. 1531, 36 L.Ed.2d 192 (1973). Also involved in Bowen under Almeida-Sanchez is the status of an intermittent but fixed checkpoint.
I would let the panel, [9 Cir., 462 F.2d 347] decide the case. None of the earmarks of the normal case for en banc are here.
It is inescapable that the Supreme Court will decide the questions here. They are too big and too far reaching for that Court to ignore them.
This en banc hearing results in about a three-months' delay in the case getting to the Supreme Court. Meanwhile, two or three district courts are almost choked with the retroactive question. Thus, knowing our decision means little in this instance, I was prepared to live with any decision the panel might render.
Taking this case en banc is simply flying off into the air without a payload.