It takes a fair piece to get Judge Dorothy Nelson to write a dissent. But it occasionally happens. As it does here.
I think this is a pretty darn good candidate to get taken en banc. It's a case in which the majority opinion arguably conflicts with a prior en banc decision. It's a case in which, at a minimum, the issue is close. And it's a case involving a model jury instruction that even the majority opinion concedes could probably be written a lot better.
This opinion was filed almost two full years (to the day) after oral argument. Don't be surprised if its shelf life is significantly less than that.
