John Franklin Taylor v. United States

This appeal has been determined in part by a unanimous court. Reference is hereby made to the general discussion and recital of facts, and to the first four questions common to all defendants and determined in that decision entitled Johnson v. United States, 9 Cir., 285 F.2d 700 . We incorporate the portion of that opinion applicable to the appellant Taylor in this opinion. We consider here the two questions peculiar to the Taylor appeal alone.

The first is the board’s failure to reopen the matter of Taylor’s classification.

[I] Taylor sent the draft board information that he had become a “vacationpioneer” which is part-time ministerial work and which may lead to full-time ministerial work. Taylor did not request that the classification be reopened. He advised, but did not request. The point has already been decided adversely to appellant by our ruling in Shaw v. United States, 9 Cir., 1959, 264 F.2d 118 . We decline to overrule that decision.

The next question raised by Taylor alone is alleged error in sentencing procedure.

Appellant Taylor urges that Rule 32 (a), Fed.R.Crim.P., 18 U.S.C.A., was not followed in his case. This rule, in material part, reads:

There is a…

(concurring in part and dissenting in part).

I concur in that part of the majority opinion which rejects Taylor’s argument concerning the board’s failure to reopen the matter of classification. I also concur in that part of the majority opinion in which the findings and adjudication of guilt are upheld, the sentence is vacated, and the matter is remanded to the district court for resentencing. I dissent from that part of the majority opinion in which the view is expressed that the right of allocution given Taylor under rule 32(a), Federal Rules of Criminal Procedure, 18 U.S.C.A., may be waived by the statement of Taylor’s counsel if made in Taylor’s presence.

I am aware of the fact that in an opinion filed on August 2, 1960, in Yaich v. United States, 9 Cir., 283 F.2d 613 , a panel of this court held that a defendant’s right of allocution can be so waived. A petition for rehearing is pending in that case and accordingly the mandate has not yet issued. Yaich therefore does not have the precedent status of a decided case of this court and does not require overruling in order to reach a contrary result here.

In discussing the allocution question the majority makes this statement,…

285 F.2d 703 John Franklin TAYLOR, Appellant, v. UNITED STATES of America, Appellee. No. 16726. United States Court of Appeals Ninth Circuit. Dec. 12, 1960. J. B. Tietz, Los Angeles, Cal., for appellant. Laughlin E. Waters, U.S. Atty., Robert John Jensen, Wm. Bryan Osborne, Asst. U.S. Attys., Los Angeles, Cal., for appellee. Before CHAMBERS, STEPHENS, POPE, BARNES, HAMLEY, HAMLIN, JERTBERG, MERRILL and KOELSCH, Circuit Judges. BARNES, Circuit Judge. 1 This appeal has been determined in part by a unanimous court. Reference is hereby made to the general discussion and recital of facts, and to the first four questions common to all defendants and determined in that decision entitled Johnson v. United States, 9 Cir., 285 F.2d 700 . We incorporate the portion of that opinion applicable to the appellant Taylor in this opinion. We consider here the two questions peculiar to the Taylor appeal alone. 2 The first is the board's failure to reopen the matter of Taylor's classification. 3 Taylor sent the draft board information that he had become a 'vacationpioneer' which is part-time ministerial work and which may lead to full-time ministerial work. Taylor did not request that the…