concurring.
I concur in the result reached by Judge Higginbotham, and join in his fine opinion. I write separately in order to note that in light of the issue raised and arguments advanced by the dissent, it was and is my view that the Court should rehear this case en banc.1
The point raised by the dissent was not presented in the trial court, nor was it briefed or argued in this Court. If a panel of this Court is to resolve a criminal appeal on the basis of its answer to this question, it seems unwise, at least to me, to fail to give the parties an opportunity to address it. For an appellate court to decide an important matter such as the present one, sua sponte, without the benefit of argument by counsel, is, I believe, neither in the interest of the parties nor the judicial system.
Having noted my position in this regard, I am of the view that the approach previously taken by this Court, by all other courts that have considered the question, and by the majority here, is correct: the Hobbs Act may be used to reach the type of activity involved in the present ease. But I do not pretend to be so certain of my understanding of the statute and the intent of Congress in enacting it that I am prepared to dispense with the assistance of the parties in deciding the issue. It is a basic premise of our legal system that judges are open to persuasion and that it is the role of the advocate to persuade them. In the present case the appellants find themselves confronted with a decision apparently turning on our legal judgment concerning an issue that they, for understandable reasons,2 have not addressed. However confident we may be of the rightness of our conclusions, we ought not to adhere to them without affording the parties an opportunity to brief and argue a controlling issue that was not injected into the case until after the argument.
. Internal Operating Procedures of the Third Circuit, VIII.
. The parties apparently did not address the issue raised by the dissent because they believed the question to have been definitively resolved by this Court. See United States v. Kenny, 462 F.2d 1205 (3d Cir. 1972). See also cases cited in dissenting opinion, n.5. Under the rules of this Court (Internal Operating Procedures of the Third Circuit, VIII C), a panel must adhere to the Court’s precedent, which may be overturned only by the Court sitting en banc. Because Kenny is binding here — as even the dissent, despite its advocacy of reversal, appears to agree — rehearing before the original panel would be of little practical utility. If the arguments raised by the dissent — which were not raised before the Court in Kenny — have merit, only the full Court can reverse that result. Of course, if Kenny were not controlling here, the panel, if it were so inclined, could reverse the conviction on the basis of the dissent’s analysis, and no en banc rehearing would be necessary in order to evaluate those arguments.
. 18 U.S.C. § 1951 provides:
(a) Whoever in any way or degree obstructs, delays, or affects commerce or the movement of any article or commodity in commerce, by robbery or extortion or attempts or conspires so to do, or commits or threatens physical violence to any person or property in furtherance of a plan or purpose to do anything in violation of this section shall be fined not more than $10,000 or imprisoned not more than twenty years, or both.
(b) As used in this section—
(2) The term “extortion” means the obtaining of property from another, with his consent, induced by wrongful use of actual or threatened force, violence, or fear, or under color of official right.