United States v. Honorable James O. Ellison , 722 F.2d 595 ( 1982 )

722 F.2d 595

UNITED STATES of America, Petitioner,
v.
Honorable James O. ELLISON, Respondent.

No. 82-1602.

United States Court of Appeals,
Tenth Circuit.

May 21, 1982.

Before SETH, HOLLOWAY, McWILLIAMS, BARRETT, WILLIAM E. DOYLE, McKAY, LOGAN and SEYMOUR, Circuit Judges.

The Court, sitting en banc, having heard oral argument of counsel, orders as follows:

1. The petitioner's emergency application for writ of mandamus and appeal is hereby denied.

2. The petitioner's emergency motion for stay of the district court's order of dismissal of Counts 1 through 15 of the Indictment is denied.

3. The order of the panel entered in the captioned cause on May 17, 1982, 684 F.2d 664, staying all further proceedings before the United States District Court for the Northern District of Oklahoma in case No. 81-CR-97, United States of America v. Robert B. Sutton, et al., is hereby vacated.

1

The Court is of the view that mandamus is an inappropriate remedy and that to grant the relief prayed for would violate the double jeopardy clause of the Fifth Amendment of the United States Constitution.

2

BARRETT and DOYLE, Circuit Judges, dissent.