# 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/9445232 ## 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:** Dissent by Stephens - **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/9445232 ## 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 STEPHENS, Circuit Judge (dissenting). I dissent from the opinion of the majority of the Court en banc upon the ground that neither this court nor any member thereof has any jurisdiction to consider and pass upon but one single issue of a case in which other issues are involved on appeal to this court. An affirmance or a reversal of a judgment by an appellate court results from the action of one court composed of judges each of whom brings his views to bear upon every issue raised and each judge must apply his own view to every issue. A conclusion reached by one judge upon any issue may be dispositive of the case in his view, while another judge may reach the same conclusion but think it of little or no effect upon the disposition of the appeal. A combination of conclusions arrived at upon separate issues by different judges of the same appellate jurisdiction can never be warped into an affirmance or reversal by some or all the judges who have participated in such separate piece-consideration of the several issues. This instant case was heretofore regularly assigned to a Division of this court, as a duly constituted court, and, as such court, the Division considered the briefs, heard oral argument on all the issues on appeal, and decided the case. The judgment of the Division affirming the judgment of the District Court has never been set aside by the Division. Upon a motion for rehearing, the Division granted it as to one issue only,, whereas there were multiple issues on appeal, and this Court en banc accepted the Division’s invitation to hear and decide the one issue. We have heard en banc that one issue and it alone, and by its opinion the en banc majority purport to pass upon that single issue and relate the en banc majority’s conclusions to the Division’s disposition of the appeal. The en banc majority’s opinion in effect sets aside the Division’s judgment and substitutes its own, although the Court en banc heard and considered but a part (one issue) of the case. It is but fortuitous that the substituted judgment is the same as that of the Division, albeit upon different reasoning. The difficulty I am pointing out would be more apparent had the majority decided to reverse *670 the Division’s (and the District Court’s) judgment. But, of course, the difficulty exists as to each equally. It seems, as of course, to me that the Court en banc had no jurisdiction to do as it has done, since the case itself has never been assigned to the Court en banc, nor argued to it, nor submitted to it, nor to any judges of this court other than those of the Division, as a Division and as a duly constituted court. As a matter of fact, not a single judge who has signed the Court’s en banc majority opinion has ever had submitted to him any issue of the appeal other than the one single issue. Not one of the Division has agreed to the majority en banc opinion. * How the Court’s en banc majority opinion-decision is designed to be integrated with the Division’s, it is impossible to know. If it is designed to replace and supersede the Division’s, then the Judges who never have had anything to do but with the one single issue have decided, or have taken the Division’s opinion upon, all of the other issues in the appeal “sight unseen.” If it is intended that the Court’s en banc majority opinion-decision be advisory to the Division, then I say there is nothing in the law permitting an advisory opinion-decision upon an isolated issue of an appeal, or indicating that a Division should, would, or could act upon such advice. The members of the Division in the instant case were unanimous in their holding on the one isolated issue, and each one considered such holding to be of weight in deciding the appeal. I have never heard it even intimated that any judge of the Division has changed, or will change, his mind or will abandon his own view as to the single issue referred to. How can any judge surrender his conviction on any issue in any case simply to conform to other judges’ views? And the judges of the Division still have the appeal submitted to them. How can any judge, not on the Division, pass upon an appeal in a case as a whole when he has never heard but an isolated issue of that appeal? What the majority en banc are saying by their opinion-decision is; The Judges of the Division have affirmed the District Court judgment. We, en banc, officially know nothing about the case except as to the one issue referred to us, which issue the Judges of the Division regard as important. In view of the evidence related to that issue, we think on the contrary that it is of no importance to the decision of the appeal and nevertheless affirm the judgment of the District Court, as the Division did. Thus, every judge of the Court en banc majority, without knowing a thing as to the several other issues of the appeal, without having heard oral argument on these other issues, and without having had these other issues submitted to him for decision, blindly accepts the Division’s conclusion on them by participating in the decision of the Court en banc majority and affirming the judgment. I am conscious of the fact that I joined in the order of the Court en banc accepting the one issue for consideration. Upon listening to the argument on this one issue, however, doubt as expressed above entered my mind and I promptly communicated it to the active members of the Circuit Court. I take my share of the blame for the confusion resulting, but I see no merit in going further along the line of confusion. I would rescind our Court’s en banc action and send the one issue back to the Division. And then if the Division sees fit to request the Court en banc to *671 take over the whole case and decide it, I would vote for the Court en banc to conform to such request. Such a course would comply with our ninth circuit rules in every respect and would be logical and consistent with our fixed course through the years (but with one exception which I think was error) that the Court en banc is neither an appellate nor an advisory Court over a Division. I dissent upon the fundamental ground that, in the circumstances, neither the Court en banc nor I, individually, have any jurisdiction to pass upon the isolated issue or upon any other issue or issues of the case or to affirm or reverse the Division’s judgment. If a majority of the Division request it, this Court en bane can rehear the entire case. It may be that a majority of the active members of the ninth circuit Court could, by rule, provide that it can grant a rehearing in any case after judgment by a Division. But our rules at present do not so provide, and what is more, we have not assumed to do this in the instant ease. I reserve the privilege to later file an expression of my views to the effect that the Chief Judge’s comparison of actions by the Supreme Court with this Court’s action in the instant case, is not apposite. Supplemental Opinion. STEPHENS, Circuit Judge (dissenting). Opinion with the decision of the case by this court sitting en banc were filed May 29, 1956. Because of widely divergent views held by members of this court, both as to the merits of one issue of the case, and as to procedure, this case suffered considerable delay in decision. I had prepared a dissent to Judge Healy’s opinion when Chief Judge Denman’s opinion, concurring upon a ground that I had wrongly assumed had been abandoned, reached me. I was at the time engrossed in other matters so, in order to avoid further delay, I merely added to my opinion that I reserved the privilege of responding to Chief Judge Denman’s opinion at a later date. In this supplemental opinion I have italicized the words “en banc” and “division” in order to more readily distinguish the two ways in which the court of appeals sits. Before going into my comment as to the Chief Judge’s concurrence, I will merely note that Judge Fee is in accord with my first dissent, but he has not seen my reply to Chief Judge Denman. Judge Chambers apparently agrees with my original dissent, and has not seen this supplemental opinion. He suggests a possible way out of the dilemma, but adds, “This has not been done.” The possible way out suggested by Judge Chambers is not Chief Judge Denman’s way out. The Chief Judge in his opinion, as well as the majority, if I understand him, thinks that the circuit court en banc can accept from a statutory division of the circuit court a portion of an appeal pending in the division and, without considering any other portion of the appeal, decide the whole appeal by applying some unexpressed method of integrating the en banc’s decision on the one portion, with the division’s decision on all the remaining portions. And it must be understood that the Chief Judge does not contend that the court en banc has any advisory power over a division. It seems, under the Chief Judge’s theory and that of the majority, that the decision of the division fades out entirely as the decision on appeal. The decision is the en banc’s. The appeal in this case raised numerous points, and the division thought none good and affirmed the judgment of conviction. However, on petition for rehearing, the division, without divesting itself of the case, granted a limited rehearing and asked the en banc court to rehear one point only, in order to resolve a possible conflict in our divisions. The en banc court accepted and heard the one issue, but did not resolve the cor,- *672 flict. It merely held as to the point it took over that, if there was an instruction contrary in point of law to a ruling in a former case, it was of no importance because the instructions as a whole, with the applicable evidence in the case upon the one point, was not prejudicial. The judges thereupon entered their en banc decision, affirming. I said in my main dissenting opinion that the judgment of the division affirming the district court has never been set aside and I asked the following question: “How the Court’s en banc majority opinion-decision is designed to be integrated with the Division’s, I should like to know.” Since the opinion wherein I asked the question was filed, the en banc’s affirmation of the district court has been filed and the formal entries on the clerk’s official minutes show the two official af-firmances. My question stands without answer. However, I do not give controlling effect to the mere fact that the two decisions stand on the clerk’s book. I suppose, if the en banc’s decision is good, it would supersede the division’s decision. The Chief Judge Denman likens what the en banc court has done, to the writ of certiorari, as used by the United States Supreme Court. I think there is much fundamental difference. First, an appeal to the court of appeals is a statutory right of litigants. There is no such right relating to the Supreme Court in this case and it can be reviewed by the Supreme Court only through the permissive writ of cer-tiorari. 1 Second, every active member of the court, when sitting en banc, and each of the three members, when sitting in division as the court, has the duty of considering every point raised on appeal until and unless the court reaches a point absolutely requiring reversal. The Supreme Court, under its own limiting rules, need take only such cases for appellate review, or such portion of cases for appellate review, as it thinks proper. If it grants certiorari on a limited point of the case, it rules on the point and returns the case to the lower court with instructions to consider the whole case with the Supreme Court’s view of the limited point. However, if, as in the case of Dennis v. United States, 1951, 341 U.S. 494 , 71 S.Ct. 857 , 95 L.Ed. 1137 , cited by Chief Judge Denman, the one point upon which certiorari is granted is necessarily decisive of the case, it decides the case. Thus, in Dennis, supra, the one point was the constitutionality of the Smith Act. In considering the issuance of certiorari, it had the whole case before it, but refused to grant the writ except upon the constitutional point. Our court must take the whole appeal. If the Supreme Court had found other points worthy of its consideration and had granted certiorari in general, upon determining that the Smith Act was constitutional, the court would have proceeded to the other questions and ruled upon all issues of the appeal. In our case, the court of appeals, en banc, though it had but one phase of the case before it, found no reversible error in the point considered but, without considering and without the right of considering any of the several other points urged as requiring reversal, entered its affirmation of the judgment. Had the whole case been referred to the court en banc under our rules, it is altogether possible that the court would have found reversible error in one or more points on appeal. I do not hint that such rever *673 sible error was present, I don’t know, never having had the other points before me. I have suggested in my main dissenting opinion an orderly manner under our rules in which to resolve conflicts between the divisions of our court. It is possible that the whole court, by majority vote, has the inherent power to grant rehearings in any case on appeal. Chief Judge Denman and Judge Pope have ever so contended. But, even so, I think such power would not encompass what the court has done in this case. I think the foregoing plainly shows that the Chief Judge was wrong in saying, as he did in his opinion, “It is apparent that a rehearing en 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.” And, as to his statement after quoting § 1254(1) of Title 28 U.S.C., I think he was wrong again in saying, “In both courts the reviewing is a matter of the court’s discretion.” In the court of appeals the reviewing of a judgment, when an appeal has been taken, is a must. In the United States Supreme Court, the reviewing is a matter of discretion exercised through the petition for the writ of certiorari. Of course, when either court is actually reviewing any point in any case, it applies its discretionary judgment. . x , , , . . ,. As I stated m my mam dissenting . . T ,, . , , opinion, I would rescind our court en-banc’s action and send the one issue back to the division. Then, if the division sees fit to request the court en banc to take over the whole case and decide it, I would vote for the court en banc to conform to such request. CHAMBERS, Circuit Judge (concurring and dissenting). I concur in the affirmance of the judgment of conviction, The opinion of Judge Stephens is well reasoned. There is one possible answer to his views. That is; if the panel which first heard the case inadvisedly placed a limitation on the scope of the rehearing and the court en banc compounded the error by specifying the same limitation, then the limitations might be held ineffective, rather than the entire orders. It has been my best judgment, the question having arisen, that the panel and the court en banc should have proceeded to amend the respective basic orders to eliminate the attempted restriction on scope of review. This has not been done. j stm adhere to my concurrence in judge Byrne>s opinion which is now re_ ported at 226 F.2d 561 . And I hope that on another day it wm become the jaw 0£ -¿his circuit. It seems to me unhappy when we enforce Rule 30 in a murder case Shockley v. United States, 9 Cir., 166 F.2d 704 , and lay it aside in Bloch v. United States, 9 Cir., 221 F.2d 786 , an income tax case, Granting the power to ignore Rule 30 and find Plain error> as the majority en banc holds, I am now hopeful that this shotgun, “plain error,” will be kept further back in the closet. If that hap-Pens’ this Bloch-Herzog business will not have been in vain- 1 have "Qne over the record in Bloch, and I think the re- ,, . . ,, , suit reached there was a great miscar- „ . ,. ,. ® ™ge °f justice granting the power to dlsregard Rule 30- If my deductions are correct, it is a necessary corollary of the majority decisión here that counsel still cannot objeet in this court to instructions not objected to in the trial court. But we are free to go wandering looking for plain error. Strange, isn’t it? * *674 JAMES ALGER FEE, Circuit Judge (dissenting). I fully concur with the opinion of Judge Stephens in dissent. I did not join in the vote to write an advisory opinion on one phase of a criminal case. The majority had and has no jurisdiction to do so. The dicta set out as the views of the majority upon the issue so segregated do not agree with those of the members of the division which heard the case as a whole, as it was empowered to do under the rules, and upon which it affirmed the lower court. Although the majority has wisely reached the same result as the division, their present opinion has no authority and may be disregarded. The opinion of the majority includes intrinsically its own refutation, since it sets out the postulate that an appellate court may notice error in an instruction unassigned, but decides that such error in this case was not prejudicial, although the majority who join in it neither heard argument on the merits nor examined the record. The maxim, “Never plead guilty,” becomes almost axiomatic when an appellate court searches for and finds error in a stock instruction, which has been given by the trial courts for many years, to release a defendant whom the evidence showed guilty. This was apparently done in the Bloch case, by another division of this Court. Bloch v. United States, 9 Cir., 221 F.2d 786 . If counsel in the trial court can sit mute where the judge gives a stock instruction not applicable or makes a slip of the tongue and such counsel can still argue in the appellate court that reversible error was committed, in the face of the plain language of the rule, there is a new pardoning power. Instructions are given in haste and there is rarely a case where technical error unexcepted to cannot be found by an earnest searcher. The proposition that appellate courts discover errors without the aid of counsel, who have gambled on the jury verdict without calling alleged error in instruction to the attention of the trial court, is usually a fiction. It was so in the case at bar. The language and propositions advanced by the division, in the printed opinion Herzog v. United States, 9 Cir., 226 F.2d 561 on which the judgment of affirmance in this case must stand, go too far and are somewhat lacking in restraint, but these are altogether an excellent balance against the Bloch case. On this phase, I concur with the able elucidation by Judge Chambers. The Division consisted of Judge Mathews, retired, who sat in the case by designation; of Judge Chambers, an active circuit judge; of Judge Byrne, a district judge, sitting by designation. Of the members of the Court en banc, Judges Bone and Orr retired subsequently to tbe sitting of the Court en bane at the hearing of the isolated issue, and participated in the en bane majority opinion after date of their retirement. . See Rice v. Sioux City Memorial Park Cemetery, Inc., 1955, 349 U.S. 70 , wherein it is said at page 74, 75 S.Ct. 614 , at page 616, 99 L.Ed. 897 : “Nor does it [the United States Supreme Court] sit for the benefit of the particular litigants.” And again, 349 U.S. at page 79, 75 S.Ct. at page 619 , Mr. Chief Justice Taft is quoted: “ ‘ * * * [I]t is very important that we be consistent in not granting the writ of certiorari except in cases involving principles the settlement of which is of importance to the public, as distinguished from that of the parties * * Layne & Bowler Corp. v. Western Well Works, Inc., 261 U.S. 387, 393 , 43 S.Ct. 422, 423 , 67 L.Ed. 712 .” Counsel for Herzog imported the Bloch case here in oral argument over the uncertain bridge of “It denies Mr. Herzog due process to have the court in Dr. Bloch’s case search for plain error and refuse to search for it here.” That argument is nothing more than the old one that “the policeman didn’t arrest two other speeders, so how can he arrest me?” --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9445232. Public record. Not legal advice.