Mizell v. United States

ROSS, Circuit Judge,

dissenting.

I would reverse and remand this case with directions to dismiss for the reasons set forth in Judge Bright’s dissent in Leathers v. United States, 471 F.2d 856 (8th Cir. 1972), cert. denied, 412 U.S. 932, 93 S.Ct. 2754, 37 L.Ed.2d 161 (1973). I can not justify, on the basis of a finding of fact by a jury, the discrepancy in result reached by our court in this case and Leathers vis-a-vis the result we have reached on findings of fact by trial judges in two very similar cases. Rockswold v. United States, 620 F.2d 166 (8th Cir. 1980); Wertzberger v. United States, 441 F.2d 1166 (8th Cir. 1971); see also Quast v. United States, 428 F.2d 750 (8th Cir. 1970) (jury decision). In my opinion this discrepancy should be resolved by the court en banc.