Henry v. United States, 24987.

Decision Date04 January 1971
Docket NumberNo. 24987.,24987.
PartiesThomas HENRY, Jr., Appellant, v. UNITED STATES of America, Appellee.
CourtU.S. Court of Appeals — Ninth Circuit

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:

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.

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.

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.

In lieu thereof the following is substituted:

"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.

"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."

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19 cases
  • U.S. v. Torres
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • May 25, 1984
    ...Indian tribes respectively." Id.9 We note that in Henry v. United States, 432 F.2d 114 (9th Cir.1970), modified on other grounds, 434 F.2d 1283 (9th Cir.1971), cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971), the Government prosecuted a rape charge under 18 U.S.C. Sec. 1152......
  • McBryde, In re
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 2, 1997
    ...for the expeditious administration of the business of the courts within its circuit, but they act as a council, not a court."), modified, 434 F.2d 1283, cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); see also In re Petition to Inspect & Copy Grand Jury Materials, 735 F.2d......
  • U.S. v. Bruce
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • January 13, 2005
    ...find these cases distinguishable and the argument unpersuasive. In Henry v. United States, 432 F.2d 114 (9th Cir.1970), modified, 434 F.2d 1283 (9th Cir.1971), we concluded that when an indictment charged a violation of § 1152 but the government actually prosecuted the case under § 1153, th......
  • United States v. Thornton
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • June 3, 1974
    ...Law and Procedure, Rape § 322, at 663. 12 Henry v. United States, 432 F.2d 114, 119 (9th Cir. 1970), modified on other grounds, 434 F.2d 1283 (9th Cir.) cert. denied, 400 U.S. 1011, 91 S.Ct. 576, 27 L.Ed.2d 625 (1971); Carlton v. United States, 395 F.2d 10, 12 (9th Cir. 1968), cert. denied,......
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