426 F.2d 1360
UNITED STATES of America, Appellee,
v.
William Walter WANGER, Appellant.
No. 24673.
United States Court of Appeals, Ninth Circuit.
May 8, 1970.
Wesley C. Blake (argued), San Diego, Cal., for appellant.
Brian E. Michaels (argued), Asst. U.S. Atty., Harry D. Steward, U.S. Atty., Warren P. Reese, Chief Asst. U.S. Atty., San Diego, Cal., for appellee.
Before DUNIWAY and ELY, Circuit Judges, and BYRNE,1 District judge.
PER CURIAM.
The judgment of conviction is vacated, and the cause is remanded for a new trial. Wade v. United States, 426 F.2d 64 (9th Cir. Mar. 30, 1970).
The appellant did not forfeit his rights under Wade by failing to object to jury instructions which applied the law as it was firmly established prior to Wade, nor should he be penalized for his attorney's not having requested jury instructions which, at the time of his trial, would have been inconsistent with the law as it then existed. Compare United States v. Scott,425 F.2d 55 (9th Cir. Mar. 6, 1970).
Honorable William M. Byrne, Senior United States District Judge, Los Angeles, California, sitting by designation