Lee M. Modjeska, Mill Valley, Cal., for defendant-appellant.

James W. Meyers, Asst. U. S. Atty., San Diego, Cal., for plaintiff-appellee.

Before WRIGHT and GOODWIN, Circuit Judges, and WOLLENBURG, District Judge.*

Bruce M. Margolin, a member of the bar, was cited to appear before this court to show cause why sanctions should not be imposed against him for his derelictions in representing the defendant Smith on appeal. Our first citation of February 20, 1975 could not be served because Mr. Margolin could not be located by the United States Marshal. In response to our second citation, he appeared on June 3, 1975.

The court has heard his explanation and has considered the effect of his conduct on the prosecution of the principal appeal which was initiated on September 13, 1974, and has yet to be prosecuted diligently. The court notes that the United States Attorney has timely advised us of Mr. Margolin's failures and that office has attempted to cooperate in having the appeal prosecuted or dismissed.

The court has concluded that Mr. Margolin has unduly delayed the appeal of Smith who has been in custody since sentence was imposed. It is therefore

Ordered that Mr. Margolin is discharged from further representation of appellant Smith in this appeal and this court will designate new counsel who will prosecute the appeal with due diligence;

Mr. Margolin is assessed a penalty of $500, pursuant to 46(c), Federal Rules of Appellate Procedure, for failure to prosecute the appeal with due diligence, payable to the clerk of this court within 30 days of June 3, 1975. The sum will eventually be deposited with the Treasurer of the United States.

Mr. Margolin is suspended from practice before this court indefinitely and until further order. The court may consider a petition to reinstate him when and if supported by an adequate showing that Mr. Margolin has acquired knowledge of and experience with the Federal Rules of Appellate Procedure and with the rules of this court.