# United States v. Theodore J. Isaacs and Otto Kerner, Jr.

> Court of Appeals for the Seventh Circuit · March 28, 1974 · 493 F.2d 1124

URL: https://www.frixlaw.com/law-library/cases/9460441

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. Theodore J. ISAACS and Otto Kerner, Jr., Defendants-Appellants
- **Court:** Court of Appeals for the Seventh Circuit
- **Decided:** March 28, 1974
- **Citations:** 493 F.2d 1124; 1974 U.S. App. LEXIS 9443
- **Precedential status:** Published
- **Opinion:** Dissent by Johnsen
- **Judges:** Johnsen, Lumbard, Breitenstein
- **Cited by:** 312 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/9460441

## How later opinions describe it (automated extraction)

- affirming admissibility of Illinois Racing Board members’ testimony regarding the steps they would have taken had they known of a concealed interest in certain matters

## Opinion text

JOHNSEN, Senior Circuit Judge
(dissenting).
I had hoped that ruling on the petitions for rehearing would have been deferred until after the Court of Appeals for the Seventh Circuit had rendered its decision in the in banc hearing which it has granted of the case of United States v. Pacente, No. 72-1988. Argument in the in banc hearing has been set for April 10, 1974.
In the Pacente case, a panel of the Court (two circuit judges and a district judge) had held, in a decision rendered on December 28, 1973, that failure of the trial court to grant severance as to an indictment count for perjury, committed before the grand jury by which the indictment was returned, and a count for another substantive offense, was so inherently prejudicial, even though a limiting instruction had been given, as to require reversal of both of the convictions which had occurred. That holding, if it had been followed by us in the Kerner case, would have required a reversal of his convictions.
We regarded the Pacente decision as being so unsound that we had the right to disagree with it and could properly refuse to follow it, since it represented the holding of only a single panel. Such differences in holdings between co-equal panels of Courts of Appeals have at times occurred, sometimes inadvertently, and sometimes as a matter of conscientious and firm disagreement.
Usually such a situation is capable of being dealt with by the court taking over the subsequent case for in banc hearing and so establishing the law of the circuit as between the conflicting views of the two panels. No such in banc taking-over of the Kerner case is, however, possible, because of the disqualification which the regular judges of the Court of Appeals have made of themselves as to the case. But the hearing in banc which the Court has granted in the Pa-cente case will equally be able to establish the law generally of the circuit on the question, and hence necessarily of the Kerner case.
Sitting as a panel of the Court of Appeals for the Seventh Circuit, though from outside the circuit, I do not believe that we could, in judicial responsibility and propriety, refuse to give application in the Kerner ease to an in banc holding of the Court, even though we might disagree with it, which would be the situation if the result in the Pacente case should be an in bane adoption of the views of the panel by which the original decision was rendered. In these circumstances, I think we could indicate our disagreement, but we would have to make reversal of the Kerner case and leave to the Supreme Court the question of settling the law which should be applied as a matter of criminal jurisprudence.
It is for these reasons that I feel we ought to defer ruling on the petitions for rehearing. Taking action now could complicate the whole situation, and a refusal to wait might perhaps also put the judicial process into an unfavorable light. Moreover, if the in banc decision in Pacente should be contrary to the holding of the original panel, the problem of our own panel would be solved.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9460441. Public record. Not legal advice.