United States v. Mark Phelps

895 F.2d 1281 UNITED STATES of America, Plaintiff-Appellee, v. Mark PHELPS, Defendant-Appellant. No. 88-5294. United States Court of Appeals, Ninth Circuit. Feb. 13, 1990. Prior report: 9th Cir., 877 F.2d 28 . Before WRIGHT, FARRIS and NELSON, Circuit Judges. ORDER 1 En banc review of the court's opinion herein was requested by an active circuit judge. A majority of the active judges have voted to deny the request. En banc review is denied. 2 KOZINSKI, Circuit Judge, and four other Circuit Judges dissent from this order. 3 KOZINSKI, Circuit Judge, with whom Circuit Judges NORRIS, BRUNETTI, THOMPSON and O'SCANNLAIN concur, dissenting from the order rejecting the suggestion for rehearing en banc. 4 By failing to take this case en banc, the court "lets stand an unfortunate and utterly needless hindrance to effective law enforcement." United States v. Cunningham, 890 F.2d 199, 200 (9th Cir.1989) (O'Scannlain, J., dissenting from the order rejecting the suggestion for rehearing en banc). In reversing defendant's conviction for violating 18 U.S.C. Sec. 924 (c)(1), the panel's opinion reads into the statute a scienter requirement that Congress refused to put there, a requirement that has…

dissenting from the order rejecting the suggestion for rehearing en banc.

By failing to take this case en banc, the court “lets stand an unfortunate and utterly needless hindrance to effective law enforcement.” United States v. Cunningham, 890 F.2d 199, 200 (9th Cir.1989) (O’Scannlain, J., dissenting from the order rejecting the suggestion for rehearing en banc). In reversing defendant’s conviction for violating 18 U.S.C. § 924 (c)(1), the panel’s opinion reads into the statute a scienter requirement that Congress refused to put there, a requirement that has been rejected by every other federal court of appeals that has addressed the issue. Equally troubling, the panel reverses a conviction for conduct that is squarely covered by the relevant statute, raising serious doubt about whether Congress can ever write a law safe from judicial dismemberment.

Facts

Mark Phelps was a man with a problem: He was in the business of manufacturing illegal drugs, but he just couldn’t get his hands on a commercial quantity of Ephedrine, a restricted precursor of methamphetamine. RTI 16-17, 22. His partner, Raymond Turnipseed, eventually turned up a potential supply of Ephedrine, but the supplier…

ORDER

En banc review of the court’s opinion herein was requested by an active circuit judge. A majority of the active judges have voted to deny the request. En banc review is denied.