United States v. Albert James Goodheim

*755 ORDER

The government petitions for rehearing, addressing the retroactivity issue which it failed to discuss in its responsive brief although it had been raised and argued in appellant’s opening brief. The government does not contend that our decision, 651 F.2d 1294 , is inconsistent with any prior Ninth Circuit decision, including United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc), nor does it contest our view that Potts is controlling. Rather, the government argues only that our decision is in conflict with decisions of other circuits, in particular United States v. Polizzi, 493 F.2d 570 (3d Cir. 1974), and United States v. Mercado, 478 F.2d 1108 (2d Cir. 1973). The government contends that those cases require a showing of actual reliance on prior contrary circuit law to foreclose retroactive application of Supreme Court decisions while our decision does not.

In this circuit we do not require that an individual defendant demonstrate that he actually relied on clearly enunciated rules adopted by us and in effect at the time the alleged criminal conduct occurred. That is unmistakably clear from Potts . There we reasoned that at a time when our previous decision…

dissenting from the failure of the court to hear this case en banc:

I write to state briefly my reasons for believing this case should have been heard by the court en banc.

The principal reason is that the rule enunciated by this case is difficult to discover after reading both the opinion and *757 the “explanatory” order. The opinion, broadly read, could mean that no Supreme Court decision, not favorable to a defendant charged with a violation of criminal law and also contrary to an existing rule or principle of this court’s jurisprudence, could be applied to any defendant within this circuit whose acts alleged to be criminal occurred prior to the Supreme Court decision. Such a broad reading would defer the effect of certain Supreme Court decisions within this circuit for a substantial period of time, presumably without regard to whether the Supreme Court made its holding retroactive or not.

The “explanatory” order of the panel suggests this broad meaning was not intended. I hope that this is true. Certainly the failure of the court to hear this case en banc is inconsistent with such a broad interpretation. A failure to consider en banc the wisdom of a rule of that breadth…

664 F.2d 754 UNITED STATES of America, Plaintiff-Appellee, v. Albert James GOODHEIM, Defendant-Appellant. No. 80-1408. United States Court of Appeals, Ninth Circuit. Dec. 9, 1981. ORDER Before FLETCHER, PREGERSON, and REINHARDT, Circuit Judges. 1 The government petitions for rehearing, addressing the retroactivity issue which it failed to discuss in its responsive brief although it had been raised and argued in appellant's opening brief. The government does not contend that our decision, 651 F.2d 1294 , is inconsistent with any prior Ninth Circuit decision, including United States v. Potts, 528 F.2d 883 (9th Cir. 1975) (en banc), nor does it contest our view that Potts is controlling. Rather, the government argues only that our decision is in conflict with decisions of other circuits, in particular United States v. Polizzi, 493 F.2d 570 (3d Cir. 1974), and United States v. Mercado, 478 F.2d 1108 (2d Cir. 1973). The government contends that those cases require a showing of actual reliance on prior contrary circuit law to foreclose retroactive application of Supreme Court decisions while our decision does not. 2 In this circuit we do not require that an individual defendant…