Swygert and Pell, Circuit Judges, and Campbell, Senior District Judge.*fn*
On Consideration of the Petition for Rehearing.
The petition for rehearing filed by defendants DuWayne and Evelyn Romenesko raises issues which are troublesome enough to warrant some elaboration of Part II of the opinion. We believe this additional explanation is in order so as to alleviate any confusion that may have been caused by the brevity of Part II.
The opinion was bottomed on the concept, established since United States v. Schooner Peggy, 5 U.S. (1 Cranch) 103, 108-10, 2 L. Ed. 49 (1801), that when a lower court relies on a legal principle which is changed by a treaty, statute, or decision prior to direct review, an appellate court must apply the current law rather than the law as it existed at the time the lower court acted. The petition for rehearing points out that the Supreme Court has on a number of recent occasions held that a newly announced constitutional rule need not be applied in cases where trials had already commenced. The petition urges that we therefore are not bound by the rule of Schooner Peggy and should make our own determination as to the retroactivity of Beckwith v. United States, 425 U.S. 341, 96 S. Ct. 1612, 48 L. Ed. 2d 1, 44 U.S.L.W. 4499 (1976).
This assertion is incorrect. When the Supreme Court holds that a new rule of law should be applied only prospectively, it is itself delineating the substantive scope of that rule. As a conceptual matter, the Court is holding that its new rule is not the law with respect to cases that have already been initiated. In contrast, when the Supreme Court announces a new rule of law after a district court has ruled but before a court of appeals has passed on a case, the court of appeals can place no such substantive limitation on the scope of the new rule. If the Supreme Court fails to limit the substantive scope of its new rule to purely prospective cases, the court of appeals as an inferior court must assume that the rule applies in all situations. The policy factors that the Supreme Court relies on in determining whether its rule should have merely prospective effect are irrelevant, though they would not be if the court of appeals were determining whether to give retrospective effect to a new rule which it had itself announced. See Linkletter v. Walker, 381 U.S. 618, 625-29, 14 L. Ed. 2d 601, 85 S. Ct. 1731 (1965), the leading case relied on in the petition for rehearing, where the Supreme Court distinguished the Schooner Peggy doctrine and the ability of a court or legislature to make a rule that it has itself constructed purely prospective.
Moreover, the Supreme Court has recently affirmed the viability of the Schooner Peggy doctrine. In Thorpe v. Durham Housing Authority, 393 U.S. 268, 281-82, 21 L. Ed. 2d 474, 89 S. Ct. 518 (1969), the Court held that an appellate court confronted with a change in the law "must apply the law in effect at the time it renders its decision," whether the change was constitutional, statutory, or judicial. Furthermore, this principle governs whether or not the new law is made specifically applicable to pending cases. See Bradley v. Richmond School Board, 416 U.S. 696, 711-16, 40 L. Ed. 2d 476, 94 S. Ct. 2006 (1974).
Accordingly, we reaffirm the holding and logic of Part II of the opinion. Beckwith must be applied to the cases at bar. The petition for rehearing is denied.
While I concurred in the original opinion written by Judge Swygert and also concur in the result reached in the present denial of rehearing, I think it appropriate to add that I have serious doubts in any event that this is a proper case for a defendant to raise a question regarding retroactivity. The usual and ordinary case in which this question is involved is that in which a new constitutional protective principle is laid down. It is of substantial significance to a criminal defendant to determine whether the newly enunciated principle is effective timewise and otherwise applicable to the facts of his case.
Dickerson purported to establish a new protective rule of constitutional proportions which was the law of this circuit for several years. Beckwith, as I read it, did not establish a new rule but in effect stated that Dickerson and Oliver were never good constitutional law. I have difficulty therefore in perceiving any merit in a defendant relying on a principle or rule which was never the law of the land, that being ...