J. A. Herzog v. United States

235 F.2d 664 J. A. HERZOG, Appellant, v. UNITED STATES of America, Appellee. No. 14611. United States Court of Appeals Ninth Circuit. May 29, 1956. Dissenting Opinion June 1, 1956. Supplemental Dissenting Opinion June 23, 1956. Writ of Certiorari Denied October 8, 1956. See 77 S.Ct. 54 . Phillips, Avakian & Johnston, Spurgeon Avakian, J. Richard Johnston, Oakland, Cal., Frederick Bernays Wiener, Washington, D. C., for appellant. Lloyd H. Burke, U. S. Atty., Robert H. Schnacke, John Lockley, Richard H. Foster, Asst. U. S. Attys., San Francisco, Cal., for appellee. Before DENMAN, Chief Judge, and STEPHENS, HEALY, BONE, ORR, POPE, LEMMON, FEE, and CHAMBERS, Circuit Judges. HEALY, Circuit Judge. 1 Appellant was indicted on three counts charging willful attempted evasion of federal income taxes. Two counts related to 1947 taxes and the third concerned those of 1948. The accused was acquitted on the first two counts and convicted on the third. On appeal the judgment of conviction was affirmed, 9 Cir., 226 F.2d 561 . 2 Appellant petitioned for a rehearing and his petition was in part granted, limited to questions pertinent to the conflict or apparent conflict between the decision…

Appellant was indicted on three counts charging willful attempted evasion of federal income taxes. Two counts related to 1947 taxes and the third concerned those of 1948. The accused was acquitted on the first two counts and convicted on the third. On appeal the judgment of conviction was affirmed, 9 Cir., 226 F.2d 561 .

Appellant petitioned for a rehearing and his petition was in part granted, limited to questions pertinent to the conflict or apparent conflict between the decision rendered on the appeal and the decision of this court in Bloch v. United States, 221 F.2d 786 . On all other points the petition for rehearing was denied. On motion of the court hearing the appeal herein, and pursuant to our Rule 23, the rehearing was ordered to be had en banc, limited as above indicated. The court en banc thereupon heard argument on behalf of the appellant and on behalf of the United States on the issues as so limited.

The primary question for our resolution is whether the power of the court under Rule 52(b) of the Rules of Criminal Procedure, 18 U.S.C.A., is limited or circumscribed by the provision of Rule 30 stating: “No party may assign as error any portion of the charge or…

(concurring in Judge HEALY’S opinion).

The order for the in banc hearing reads:

It has been seriously questioned whether, where an appeal in a division involves the consideration of several issues, the court in banc may order a rehearing in banc limited, as here, to but one of the issues.

The pertinent provision is 28 U.S.C. 46(c), reading:

It is apparent that a rehearing in banc of a division’s decision is identical in all material respects with the reviewing by the Supreme Court of a case decided by a court of appeals, by its certiorari order. For this 28 U.S.C. 1254(1) provides :

In both courts the reviewing is a matter of the court’s discretion. In both *669 courts the decision to be reviewed is a matter to be considered de novo and the judgment of the court reviewed may be affirmed or reversed.

The Supreme Court has frequently confined its certiorari review to the consideration of less than all the issues considered by the court of appeals. Typical is the case of Dennis v. United States, 341 U.S. 494 , at page 516, 71 S.Ct. 857 , at page 871, 95 L.Ed. 1137 , where the Court’s opinion states:

It is my opinion that the court in banc has this same power to limit the…

(dissenting).

I dissent from the opinion of the majority of the Court en banc upon the ground that neither this court nor any member thereof has any jurisdiction to consider and pass upon but one single issue of a case in which other issues are involved on appeal to this court.

An affirmance or a reversal of a judgment by an appellate court results from the action of one court composed of judges each of whom brings his views to bear upon every issue raised and each judge must apply his own view to every issue. A conclusion reached by one judge upon any issue may be dispositive of the case in his view, while another judge may reach the same conclusion but think it of little or no effect upon the disposition of the appeal. A combination of conclusions arrived at upon separate issues by different judges of the same appellate jurisdiction can never be warped into an affirmance or reversal by some or all the judges who have participated in such separate piece-consideration of the several issues.

This instant case was heretofore regularly assigned to a Division of this court, as a duly constituted court, and, as such court, the Division considered the briefs, heard oral argument on…