John Leary v. United States

(dissenting).

The unanimous concurrence of all other members of this Court in the foregoing opinion gives it great weight. However, it is wrong both in the result and in the reasoning. Since it may be used to deny due process to some other defendant or perchance to permit a federal court to be held by an actual interloper, 1 2 it is necessary to point out the errors.

The process whereby a judge of one federal district can be assigned and permitted to exercise jurisdiction in a District Court of a different district is highly technical and is clearly defined by the Act of Congress. No federal judge can exercise his powers in a District Court ■of another Circuit unless these requirements be followed to the letter. The legislation is a grant of judicial power. All the provisos thereof are conditions precedent to its exercise. The judge in the instant case deliberately attempted to ■exercise this authority at a date when neither the Act of Congress nor the written assignment conferred the power upon him. His act was void.

There has been an attempt to distinguish the Frad case. 2 There, as here, the District Court of the Southern District of New York had jurisdiction of the person…

Appellant was sentenced to a period of six years in a federal penitentiary after conviction by a jury on an indictment charging him with knowing possession of property stolen from a vessel engaged in interstate commerce. 1 No question is raised on this appeal as to the eviden-tiary basis of the conviction or sentence. The record before this Court is.» sufficient to sustain a verdict of guilty, if the proceedings in the district court were proper.

The single question raised here is the validity of the organization of the court on July 31st, 1956, the day upon which the proceedings opened. The proceedings occurred in San Francisco, within one of the courtrooms regularly used by the United States District Court for the Northern District of California, Southern Division. The regular jury venire were present.

Presiding was a duly and regularly appointed, commissioned, and sworn federal judge of the District Court of New York located within the Second Circuit. He had been duly and regularly assigned by proper authority “to hold the District Court in the Northern District of California during the period beginning August 1, 1956, and ending August 31, 1956.”

This ease of United States…

(concurring).

I concur in Judge BARNES’ opinion as amended.

However, I have been, and yet am, troubled with the Frad v. Kelly, 302 U. S. 312 , 58 S.Ct. 188 , 82 L.Ed. 282 , opinion. I agree that the judgment should be affirmed upon the timid ground that the court was de facto at least. Without further study, I cannot say that the judgment should be affirmed solely upon that ground.

(concurring).

While I concur in the foregoing opinion, I do state that I would take a much different view of the case if there had not been an intelligent and free waiver by the defendant and his counsel of the defect in the trial judge’s assignment to the Northern District of California.

268 F.2d 623 John LEARY, Appellant, v. UNITED STATES of America, Appellee. No. 15290. United States Court of Appeals Ninth Circuit. May 18, 1959. Dissenting Opinion June 30, 1959. Fay Stender and Marvin Stender, San Jose, Cal., for appellant. Robert H. Schnacke, U. S. Atty., Lynn Gillard, John H. Riordan, Jr., Asst. U. S. Attys., San Francisco, Cal., for appellee. Before POPE, STEPHENS, FEE, CHAMBERS, BARNES, HAMLEY, HAMLIN, and JERTBERG, Circuit Judges. BARNES, Circuit Judge. 1 Appellant was sentenced to a period of six years in a federal penitentiary after conviction by a jury on an indictment charging him with knowing possession of property stolen from a vessel engaged in interstate commerce. 1 No question is raised on this appeal as to the evidentiary basis of the conviction or sentence. The record before this Court is sufficient to sustain a verdict of guilty, if the proceedings in the district court were proper. 2 The single question raised here is the validity of the organization of the court on July 31st, 1956, the day upon which the proceedings opened. The proceedings occurred in San Francisco, within one of the courtrooms regularly used by the United States District…