Blumenthal

(dissenting).

The petition for rehearing should be granted and the judgments reversed. My concurrence in the decision is withdrawn and the accompanying opinion filed as a dissent to the court’s opinion filed on December 16, 1946:

The statement of facts of the court’s opinion has a fatal vacuum necessary to be filled to establish the conspiracy charged, though its circumstantial evidence warrants the inference of at least four other disconnected criminal conspiracies.

Abel, Blumenthal and Feigenbaum are shown to have been black marketers and should have been prosecuted for selling whiskey at over ceiling prices. Instead, the several prosecutions are sought to. be avoided by attempting to throw a conspiracy net around them — a convenience to prosecutors but often dangerous to the cause of justice. Cf. Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. -.

The court’s opinion is bare of facts, as is the evidence,

The obvious inference from the above proof and absence of other proof is that the unknown owner of the whiskey referred to in the court’s opinion used each of Abel, Blumenthal and Feigenbaum separately as his agent to violate the law. This would…

The petition for rehearing is denied.

HEALY and BONE, Circuit Judges, concur.