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U.S. v. Smith (9th Cir. - March 31, 2008)

By Shaun Martin

It takes a fair piece to get Judge Dorothy Nelson to write a dissent. But it occasionally happens. As it does here.

I think this is a pretty darn good candidate to get taken en banc. It's a case in which the majority opinion arguably conflicts with a prior en banc decision. It's a case in which, at a minimum, the issue is close. And it's a case involving a model jury instruction that even the majority opinion concedes could probably be written a lot better.

This opinion was filed almost two full years (to the day) after oral argument. Don't be surprised if its shelf life is significantly less than that.

Full post as published by California Appellate Report on March 31, 2008 (boomark / email).