(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 My concurrence in the decision is withdrawn and the accompanying opinion filed as a dissent to the court’s opinion filed on December 16, 1946: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 constitute several separate conspiracies between the unproved owner and each of the proved sellers, but not a conspiracy among all four of them.

The owner is the common hub from which extend the three illicit sale conspiracies as spokes, but with no binding rim, as in the cases of Kotteakos v. United States, 328 U.S. 750 , 66 S.Ct. 1239 , 90 L.Ed. -, and Canella v. United States, 9 Cir., 157 F.2d 470, 477 .

Even if the circumstantial evidence of identity of purchase and sale price also warranted the more remote inference that each of these three sellers conspired with each other and the owner to violate the price ceiling, the first and obvious inference, of three separate agencies for the owner, must control. As wc stated in reversing an instruction which failed to state that the inferences from circumstantial evidence must be “inconsistent with every reasonable hypothesis of innocence,” of the crime charged. Paddock v. United States, 9 Cir., 79 F.2d 872, 875 , 876:

The same is true also of the appellants Weiss and Goldsmith. The conspiracy charged is that they conspired with the three black marketers, Abel, Blumenthal and Feigenbaum to sell the whiskey at higher than the maximum price. The court’s opinion states no facts and the record has none showing that either Weiss or Goldsmith knew that any whiskey was sold at such higher prices, much less than there was any agreement with the three or anyone of them for such prohibited sales.

There is evidence that Weiss and Goldsmith received $2 per case to pass the whiskey through their books and to sell it at slightly less than the maximum price to cover up some unknown reason of the unknown owner. But this is fully capable of supporting an inference that the unknown owner has highjacked the whiskey and wanted it sold at something slightly less than the maximum so that no question could be raised regarding its disposition. True this would be a wrongful conspiracy, but as in the Kotteakos case, not the conspiracy charged in the instant indictment. As in Paddock v. United States, supra, the inference from the circumstantial evidence of these wrongful acts involving sales at less than the maximum is one “inconsistent with * * * [a] reasonable hypothesis of innocence” of the charged conspiracy to sell at higher than the maximum price. As is stated in Kotteakos v. United States, supra, 328 U.S. 750 , 66 S.Ct. at page 1252 , 90 L.Ed.-:

The judgments should have been reversed.