Thomas Henry, Jr. v. United States ( 1971 )

434 F.2d 1283

Thomas HENRY, Jr., Appellant,
v.
UNITED STATES of America, Appellee.

No. 24987.

United States Court of Appeals, Ninth Circuit.

January 4, 1971.

John R. McDonough (argued), Los Angeles, Cal., for appellant.

Roger A. Pauly (argued), Atty., Minneapolis, Minn., Bart M. Schouweiler, U. S. Atty., Robert S. Linnell, Asst. U. S. Atty., Reno, Nev., for appellee.

Before CHAMBERS and CARTER, Circuit Judges, and BYRNE, District Judge.

ORDER MODIFYING OPINION

PER CURIAM:

1

The opinion filed herein on September 16, 1970, is modified as follows: The last five paragraphs of text beginning with "Regardless of the fact * * *" and ending with "* * * devoid of merit." are stricken.

2

The text matter eliminated begins with the penultimate paragraph on page 7 of the printed slipsheet opinion and ends just before the word "affirmed" on page 8.

3

The same eliminated text begins with the second paragraph of the second column on page 119 of 432 F.2d and ends at the top of page 120.

4

In lieu thereof the following is substituted:

5

"We question the existence of such supervisory power except as exercised by the Supreme Court. However, assuming its existence and that it could be exercised by this court, we are of the view that the power should not be exercised to free a guilty man ex post facto under a new rule granting an insulation not required by Wade, supra.

6

"Certainly in the enforcement of criminal law whatever abuses there have been, they have not been in the field of officers removing small samples of hair of defendants without the presence of counsel."