UNITED STATES of America, Petitioner/Appellee/Cross-Appellant,
Frank S. ZOLIN, Respondent/Appellee,
Church of Scientology of California and Mary Sue Hubbard,
Nos. 85-6065, 85-6105.
United States Court of Appeals,
July 5, 1988.
Before BROWNING, TANG, PREGERSON, ALARCON, NORRIS, REINHARDT, BEEZER,
BRUNETTI, THOMPSON and LEAVY, Circuit Judges.
The opinion published at 842 F.2d 1135 is amended to include the
NORRIS, Circuit Judge, concurring in the result:
I write separately to make it clear that I believe the independent evidence
rule has been and should continue to be the law of the circuit. See United
States v. Shewfelt, 455 F.2d 836 (9th Cir.), cert. denied, 406 U.S. 944, 92
S.Ct. 2042, 32 L.Ed.2d 331 (1972). However, I cannot join the court's order
because the majority has failed to make clear whether the order is a
disposition on the merits, i.e., whether it constitutes en banc authority that
the Shewfelt independent evidence rule is the law of the circuit. If the
order is intended to be a disposition on the merits, it is internally
inconsistent because an en banc panel cannot both decide a case on the merits
and vacate as improvidently granted the order *611 of the full court
authorizing it to decide the case.