[9] FERGUSON, District Judge, dissenting:

I respectfully dissent.

In my opinion, this case presents serious questions of procedural irregularity and, more importantly, of fundamental fairness in the administration of justice. The key to this opinion lies in a review of the long and tortuous route which the case has traveled through the appellate process to reach its present posture.

I.

1. On November 7, 1973, the appellant Barela was indicted and charged with possession with intent to distribute a quantity of marijuana which had been found in his vehicle during a search at the San Clemente checkpoint on October 24, 1973. A motion to suppress was denied, and Barela was convicted. He was sentenced by the district court on April 15, 1974, and timely filed an appeal to this court.

2. On September 5, 1974, this panel filed an unpublished memorandum opinion reversing the conviction on the ground that the search of Barela's vehicle was illegal because it had not been based on founded suspicion or probable cause. In so holding, we properly relied on the state of the law at that time in accordance with the United States Supreme Court's decision in Almeida-Sanchez v. United States, 413 U.S. 266, 93 S.Ct. 2535, 37 L.Ed.2d 596 (1973) and two recent Ninth Circuit cases, United States v. Juarez-Rodriguez, 498 F.2d 7 (1974) and United States v. Bowen, 500 F.2d 960 (1974). The government's brief on appeal conceded the applicability of Bowen and presented no argument on the merits other than a suggestion that the case be taken under submission pending review by the Supreme Court of the issues raised in Bowen. That suggestion was implicitly rejected by the issuance of our September 5 opinion.

3. On September 20, 1974, the government timely filed a petition for rehearing. In that petition, the government again conceded that under the current state of the law the court had been correct in sustaining the defendant's appeal. However, the argument was repeated that the case should be taken under submission pending Supreme Court review of the issues presented. It was noted that petitions for certiorari had been filed in United States v. Bowen, supra, and in United States v. Ortiz, an unpublished Ninth Circuit decision which had relied on Bowen to invalidate a post- Almeida-Sanchez fixed checkpoint search. This panel again rejected the government's suggestion and denied the petition for rehearing on October 31, 1974.

4. While the petition for rehearing was pending before this panel, the government filed the first of its motions to stay the mandate in this case as well as a number of other cases which had been decided on the basis of the holding in Bowen. The purpose of the requested stay was to await the Supreme Court's decisions in Ortiz and Bowen. That motion was granted on October 21, 1974, and issuance of the mandate was stayed for a period of 70 days, until December 30, 1974.

5. On January 2, 1975, the government filed a motion for an extension of time in which to file petitions for rehearing in the same series of post- Bowen cases, including this case, arguing again that those cases should not be finally resolved until the Supreme Court had decided Bowen and Ortiz. The motion was denied on January 15, 1975. One week later, the government moved for reconsideration of that denial and for an order staying the mandates in each of the cases for an additional 56 days. On January 23, 1975, that motion was granted only as to the stay of the mandates.

6. On March 18, 1975, as the end of the 56-day stay approached, the government once again moved for an order extending the time in which to petition for rehearing in the post- Bowen cases. This time, instead of requesting an extension for a set period of time, the government sought permission to file for rehearing within 30 days after the Supreme Court filed its decisions in Bowen and Ortiz, which were then under submission following oral argument. In its motion, the government argued that such an extension of time would enable this court to maintain the cases in question on its active docket "in order to avoid the filing of unnecessary petitions for certiorari in all of the above cases." On March 28, 1975, an order was filed granting an extension of time, but only for another 56 days until May 23, 1975. No further stay of the mandate was either requested or granted.

The March 28 extension of time for rehearing is the last such order reflected on the court's docket for this case. No further stay of the mandate was sought by the government. The May 23 due date for filing a rehearing petition came and passed. Even if it could be said that the propriety of issuing the mandate before that date was questionable because of the repeated extensions of time for rehearing, it certainly should not have been delayed any further. Nevertheless, this case remained in limbo while the government awaited what it undoubtedly hoped would be a favorable Supreme Court decision on its claims that Almeida-Sanchez did not apply to fixed checkpoint searches.

7. Finally, on June 30, 1975, the Supreme Court announced its decisions in United States v. Bowen, 422 U.S. 916, 95 S.Ct. 2569, 45 L.Ed.2d 641, and United States v. Ortiz, 422 U.S. 891, 95 S.Ct. 2585, 46 L.Ed.2d 623. In Bowen the Court affirmed this circuit's holding regarding the nonretroactivity of Almeida-Sanchez, but disapproved the portion of the opinion which had unnecessarily addressed the question of fixed checkpoint searches. In Ortiz, however, the Court decided that issue in conformity with this circuit's premature ruling in Bowen, and it affirmed the holding that the checkpoint search of Ortiz' vehicle was illegal. The Supreme Court specifically declined to consider the argument, raised belatedly by the government in its petition for certiorari that the search in Ortiz should be held to be lawful because it took place before the Ninth Circuit's decision in Bowen had indicated that the principles of Almeida-Sanchez would be applied to checkpoint searches. 422 U.S. at 898, 95 S.Ct. 2585. The Ortiz case was not remanded to this court for consideration of that question. Thus, the Supreme Court cases on which the government relied in requesting the long series of delays in this case were finally decided, and all issues were resolved adversely to the government.

8. On July 14, 1975, Barela filed a motion for immediate issuance of the mandate. He certainly was entitled to make such a request. The government's last extension of time to petition for rehearing had run on May 23. The last stay of the mandate had expired even earlier, on March 20. The only possible reason for the prior delays had been eliminated by the recent Supreme Court decision in Ortiz which had confirmed that this panel's original reversal of Barela's conviction was correct. Once again, however, the mandate did not issue, and the docket does not reflect any action taken on appellant's motion.

9. On July 24, 1975, the government filed its second petition for rehearing. In that petition the government presented for the first time the argument that the search of Barela's car should be considered lawful because it took place after Almeida-Sanchez but before the Ninth Circuit decision in Bowen. This was the same question raised belatedly before the Supreme Court in Ortiz. It had not been presented to this panel at the time of the original appeal, nor in the first petition for rehearing; and, in fact, in those proceedings the government had conceded that Bowen would control this case.

In its second petition for rehearing, the government again asked that the final resolution of this case be delayed pending the decision in another case, United States v. Juarez-Rodriguez, 498 F.2d 7 (9th Cir. 1974). A petition for rehearing en banc had been filed in that case, presenting the question of the "retroactivity" of the Supreme Court's decision in Ortiz. No action was taken by this panel on the government's petition.

10. On November 16, 1976, this court's unpublished en banc opinion in Juarez-Rodriguez was issued. The court was evenly divided (six/six) on the retroactivity question. Because of the split, the district court's judgment of conviction in that case remained standing, but the government had once again failed to win the ruling which it needed to resolve this case in its favor. It was not until May 31, 1977, after another six months had passed without any action being taken in this case, that this court held in a sharply divided (six/five) en banc opinion that the Supreme Court's decision in Ortiz would not be applied retroactively to invalidate pre-1974 checkpoint searches. United States v. Escalante, 554 F.2d 970 (9th Cir.), cert. denied, ___ U.S. ___, 98 S.Ct. 192, 54 L.Ed.2d 136 (1977).

11. On August 9, 1977, this panel issued an order indicating that it would entertain the government's July 24, 1975 petition for rehearing for the purpose of finally disposing of the case. This is the posture in which the matter of United States v. Barela now stands before us once again, over three years after we once decided it in Barela's favor, and over four years after the filing of the indictment which initiated these proceedings.

II.

On this rehearing the government concedes that:

"Prior to this court's holding in United States v. Escalante . . . it was thought that a search conducted at a checkpoint away from the border which occurred after the date of decision in Almeida-Sanchez v. United States, . ., was unlawful absent probable cause or consent."

There seems to be no question, therefore, that this panel's original decision to reverse appellant's conviction was correct when it was made and remained correct under the law of this circuit until May 31, 1977, when the opinion in Escalante was issued. The government asks, however, that we now withdraw our earlier decision, reverse ourselves, and affirm the conviction on the authority of Escalante. This, I am convinced, we cannot and should not do.

In my opinion, the matter now before the court should be treated as a request for recall of the mandate rather than as a petition for rehearing. The last stay of the mandate expired on March 20, 1975, and the latest possible date for the timely filing of a petition for rehearing was May 23, 1975. At that point, the unequivocal, mandatory language of Rule 41(a) of the Federal Rules of Appellate Procedure made issuance of the mandate a mere ministerial act. For some reason, that act was not performed. The matter may simply have been neglected or overlooked or, very possibly, become confused due to the procedural maneuvers which the government was pursuing in this and the other post- Bowen cases. Whatever the reason, it seems impossible to me that we should simply disregard the fact that, but for this ministerial error, the mandate in this case would have issued long ago.

This is an appropriate case for application of the traditional equitable principle that the court may regard as done that which should have been done. 2 Pomeroy, Equity Jurisprudence § 363 (5th ed. 1941). See Jacksonville Port Authority v. Adams, 181 U.S.App.D.C. 175, 179, 556 F.2d 52, 56 (1977) ("In the interest of justice, the court may proceed as if action that should have been taken in the courthouse was timely taken.") See also, United States ex rel. Schuster v. Vincent, 524 F.2d 153 (2d Cir. 1975), in which the court cited this maxim in holding that, when an earlier mandate directing the state to conduct a timely parole hearing was not complied with, the court on a subsequent habeas corpus petition should treat the petitioner as if he had been released on parole at the proper time.

It is only fair and reasonable that we should adopt a similar approach in this case and treat the mandate as having issued promptly on May 23, 1975. To do otherwise would require us to ignore completely the government's failure to follow the proper procedures for staying the mandate and would allow the government to take unfair advantage of our ministerial error in not issuing the mandate at the required time. All the equities here rest with the appellant. He cannot be charged with any responsibility for the errors or the delays which have occurred, and he should not be penalized because of them. Far from "sleeping on his rights," he attempted to extricate the case from its procedural muddle by filing his July 14, 1975 motion to compel issuance of the mandate; but that motion was ignored. The only proper course for us to follow at this point is to consider the matter now before us as if the mandate had been timely issued. The government's petition, therefore, must be viewed as a request for this court to recall the mandate for the purpose of vacating and reconsidering our prior decision. Cf. Alphin v. Henson, 552 F.2d 1033 (4th Cir. 1977).

Although it is not provided for or governed by any statute or rule of appellate procedure, the right of an appellate court to recall a mandate has long been recognized as an inherent power of the court. However, the recall of a mandate is an extraordinary remedy which is only granted in cases where it is necessary to serve the interests of justice. Verrilli v. City of Concord, 557 F.2d 664 (9th Cir. 1977); Aerojet-General Corp. v. American Arbitration Ass'n, 478 F.2d 248 (9th Cir. 1973); Powers v. Bethlehem Steel Corp., 483 F.2d 963, 964-5 (1st Cir. 1973); Gradsky v. United States, 376 F.2d 993, 995 (5th Cir. 1967). See generally, Wright, Miller, Cooper Gressman, Federal Practice and Procedure: Jurisdiction § 3938 (1977). The general principles governing recall are well stated in Greater Boston Television Corp. v. F.C.C., 149 U.S.App.D.C. 322, 331, 463 F.2d 268, 277-8 (1971):

While there is a doctrine for recall of mandate broadly rooted in a showing of "good cause" and the need to "prevent injustice," the "power to recall mandates should be exercised sparingly" and is not to be availed of freely as a basis for granting rehearings out of time for the purpose of changing decisions even assuming the court becomes doubtful of the wisdom of the decision that has been entered and become final. . . . There must be special reason, "exceptional circumstances," in order to override the strong policy of repose, that there be an end to litigation. (citations omitted)

See also, Collins v. City of Wichita, 254 F.2d 837 (10th Cir. 1958).

Far from presenting such an extraordinary situation where justice requires the court to allow a recall of the mandate, the procedural history of this case shows that the interests of justice weigh heavily against any reversal of our previous decision to overturn appellant's conviction. One primary consideration must be the simple fact of the length of time which has elapsed since we rendered that decision. The fundamental importance of a speedy resolution of criminal proceedings is well recognized in our judicial system. It is intolerable that, after such a long delay caused by the government's procedural maneuvering and our own failure properly to issue the mandate, the appellant should now be deprived of the benefit of our prior favorable resolution of his case. Certainly too much time has passed to make it either fair or just to reopen the proceedings.

In addition to the length of the delay, we must consider the fact that the question which is raised by the government in the present petition was not presented to this court in connection with either the original appeal or the first petition for rehearing. Instead, the government made it clear in those proceedings that its theory of the case was that Almeida-Sanchez did not apply to fixed-checkpoint searches. Now that the issue has been decided adversely by the Supreme Court in Ortiz, the government seeks to raise an entirely different theory to support its position. Even viewing the present proceeding as a simple petition for rehearing, we would be justified in declining to consider a question so belatedly raised. See United States v. Klotz, 503 F.2d 1056 (8th Cir. 1974); United States v. Sutherland, 428 F.2d 1152, 1158 (5th Cir. 1970). See also United States v. Oritz, supra, 422 U.S. at 898, 95 S.Ct. 2585 (declining to review the same question on certiorari where it had not been presented to this court on appeal). In light of the special procedural problems which require that we consider the second petition for rehearing as a motion to recall the mandate, the propriety of refusing to allow the government to raise a new issue is even clearer.

Finally, the most persuasive factor in my decision to vote against the reversal of our previous ruling is the basic injustice that results from applying this court's 1977 decision in Excalante to this case, which had been decided more than two and one-half years earlier. During that period, the government tried first to obtain a Supreme Court ruling which would reverse this panel and sustain the appellant's conviction. When that attempt failed and the law had clearly been settled in appellant's favor, the government took advantage of further delays in the disposition of this case to seek a circuit decision on a different basis, but which would have the same effect. That decision did not come for another two years. It seems to me to be offensive to the most fundamental notions of fairness that the appellant should be deprived of the benefit of an appellate court decision, indisputably correct when rendered, simply because of a procedurally improper delay and a ministerial error by this court. Therefore, I must respectfully dissent from the majority's conclusion that the rule established in United States v. Escalante requires us to grant the government's petition and to reinstate the appellant's conviction. To the contrary, I am convinced that justice requires us to do otherwise.

I would deny the petition for rehearing and order that the mandate issue forthwith.

. . . . .

Once again, the mandate should have issued when the last 56-day stay expired on March 20, 1975. The government was incorrect if it felt that the March 18 motion regarding rehearing would act to stay the mandate as well. See note 4, supra.