United States v. Arthur Joseph Mayer

(concurring and dissenting).

With reluctance I concur in a reversal of this action on the grounds stated in the per curiam opinion. The majority now insists and orders that on remand the indictment be dismissed. From this part o,f the opinion I dissent.

There is no doubt about the proposition that the Court of Appeals has the power to remand for a new trial or to remand and order a dismissal. Bryan v. United States (1950) 338 U.S. 552 , 70 S.Ct. 317 , 94 L.Ed. 335 , expressly holds that an “order for a new trial was a just and appropriate judgment which the Court of Appeals was authorized to enter * * *". (p. 560, 70 S.Ct. p. 321). Inferentially, the case stands for the proposition that a Court of Appeals has power to remand and order a dismissal of the indictment.

The real question is one of the proper administration of the criminal law, and whether in the ordinary case where there has been found an insufficiency of the evidence, the Court of Appeals should order a dismissal of the indictment rather than remand to the district court for a new trial and allow that court to pass on whether or not a case could be made out on the retrial. Our case is purely and simply a…

Our review of the record convinces us that the judgment of conviction must be vacated. The evidence presented by the prosecution did not justify a jury instruction relating to inferences which might be drawn from possession of recently stolen property. This is so because of the deficiency of proof regarding Mayer’s alleged possession of the property in question, either actual or constructive. See, e. g., Lawrence v. United States, 400 F.2d 624, 627 (9th Cir. 1968). Excluding impermissible inferences, the evidence was simply insufficient to support Mayer’s conviction of the offense with which he was charged. Upon remand, the indictment will be dismissed.

Reversed.

. In his dissenting comments, Judge Carter recognizes that our court should, in some circumstances, direct the dismissal of an indictment when it vacates a conviction for insufficiency of the evidence. All agree that the power is discretionary, and the majority accepts the proposition that it is a power that should be exercised with caution. In this particular case, the majority’s view, expressed quite simply, is that it would be manifestly unfair to subject Mayer to further exposure. It is obvious from the record…

441 F.2d 322 UNITED STATES of America, Appellee, v. Arthur Joseph MAYER, Appellant. No. 26128. United States Court of Appeals, Ninth Circuit. April 8, 1971. Thomas J. McLaughlin, (argued), Phoenix, Ariz., for appellant. N. Warner Lee, Asst. U. S. Atty., (argued), Richard K. Burke, U. S. Atty., Phoenix, Ariz., for appellee. Before ELY, CARTER and HUFSTEDLER, Circuit Judges. PER CURIAM: 1 Our review of the record convinces us that the judgment of conviction must be vacated. The evidence presented by the prosecution did not justify a jury instruction relating to inferences which might be drawn from possession of recently stolen property. This is so because of the deficiency of proof regarding Mayer's alleged possession of the property in question, either actual or constructive. See, e. g., Lawrence v. United States, 400 F.2d 624, 627 (9th Cir. 1968). Excluding impermissible inferences, the evidence was simply insufficient to support Mayer's conviction of the offense with which he was charged. Upon remand, the indictment will be dismissed. Reversed. 1 Notes: 1 In his dissenting comments, Judge Carter recognizes that our court should, in some circumstances, direct the dismissal of an…