# J. A. Herzog v. United States

> Court of Appeals for the Ninth Circuit · October 8, 1956 · 235 F.2d 664

URL: https://www.frixlaw.com/law-library/cases/9445231

## Case

- **Full name:** J. A. HERZOG, Appellant, v. UNITED STATES of America, Appellee
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** October 8, 1956
- **Citations:** 235 F.2d 664
- **Precedential status:** Published
- **Opinion:** Concurrence by Denman
- **Judges:** Stephens, Fee, Chambers, Denman, Healy, Bone, Orr, Pope, Lemmon
- **Cited by:** 66 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9445231

## How later opinions describe it (automated extraction)

- noting that Rule 52(b) of the Federal Rules of Criminal Procedure grants appellate courts authority to notice error on their own motions

## Opinion text

DENMAN, Chief Judge
(concurring in Judge HEALY’S opinion).
The order for the in banc hearing reads:
“Upon motion of the court as originally constituted for the hearing of cause No. 14611, J. A. Herzog v. United States of America, a rehearing en banc is granted and limited to questions pertinent to the conflict or apparent conflict between the decision herein rendered on October 11, 1955, and the decision of this court in Bloch v. United States, 221 F.2d 786 , rehearing denied 223 F.2d 297 .”
It has been seriously questioned whether, where an appeal in a division involves the consideration of several issues, the court in banc may order a rehearing in banc limited, as here, to but one of the issues.
The pertinent provision is 28 U.S.C. 46(c), reading:
“(c) Cases and controversies shall be heard and determined by a court or division of not more than three judges, unless a hearing or rehearing before the court in banc is ordered by a majority of the circuit judges of the circuit who are in active service. * * * ” (Emphasis added.)
It is apparent that a rehearing in banc of a division’s decision is identical in all material respects with the reviewing by the Supreme Court of a case decided by a court of appeals, by its certiorari order. For this 28 U.S.C. 1254(1) provides :
Ҥ 1254. Courts of appeals; cer-tiorari; appeal; certified questions
“Cases in the courts of appeals may be reviewed by the Supreme Court by the following methods:
“(1) By writ of certiorari granted upon the petition of any party to any civil or criminal case, before or after rendition of judgment or decree”.
In both courts the reviewing is a matter of the court’s discretion. In both *669 courts the decision to be reviewed is a matter to be considered de novo and the judgment of the court reviewed may be affirmed or reversed.
The Supreme Court has frequently confined its certiorari review to the consideration of less than all the issues considered by the court of appeals. Typical is the case of Dennis v. United States, 341 U.S. 494 , at page 516, 71 S.Ct. 857 , at page 871, 95 L.Ed. 1137 , where the Court’s opinion states:
“We have not discussed many of the questions which could be extracted from the record, although they were treated in detail by the court below. Our limited grant of the writ of certiorari has withdrawn from our consideration at this date those questions, which include, inter alia, sufficiency of the evidence, composition of jury, and conduct of the trial.”
It is my opinion that the court in banc has this same power to limit the issues to be reviewed as the Supreme Court has on certiorari. This is confirmed by the language of the Court in Western Pacific Railroad Case, Western Pacific Railroad Corp. v. Western Pacific Railroad Co., 345 U.S. 247, 267 , 73 S.Ct. 656, 666 , 97 L.Ed. 986 , in discussing Section 46(c) that “We hold that the statute is simply a grant of power to order hearings and rehearings en banc and to establish the procedure governing the exercise of that power.” and that the language on page 270 of Justice Frankfurter’s concurring opinion that “Rehearings en banc by these courts, which sit in panels, are to some extent necessary in order to resolve conflicts between panels. This is the dominant concern. -* * * »>

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445231. Public record. Not legal advice.