# United States v. Edward O'Grady

> Court of Appeals for the Second Circuit · July 12, 1984 · 742 F.2d 682

URL: https://www.frixlaw.com/law-library/cases/9472563

## Case

- **Full name:** UNITED STATES of America, Appellee, v. Edward O’GRADY, Defendant-Appellant
- **Court:** Court of Appeals for the Second Circuit
- **Decided:** July 12, 1984
- **Citations:** 742 F.2d 682; 1984 U.S. App. LEXIS 20565
- **Precedential status:** Published
- **Opinion:** Concurrence by Newman
- **Judges:** Meskill, Lumbaad, Pierce, Feinberg, Kaufman, Kearse, Cardamone, Newman, Winter, Pratt, Van Graafeiland, Mansfield, Lumbard, Oakes, Mes-Kill, Carda-Mone
- **Cited by:** 51 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

JON O. NEWMAN, Circuit Judge, with whom WINTER and GEORGE C. PRATT, Circuit Judges, join,
concurring.
Judge Winter, Judge Pratt, and I agree with the entirety of Judge Meskill’s corn *695 prehensive opinion and would have preferred simply to join that opinion without additional comment. However, the concurring opinion of Judge Pierce and the division within the in banc court with respect to that opinion prompts us to reconsider and revise our position, solely in the interests of what we deem to be sound judicial administration. Judge Pierce, while concurring in Judge Meskill’s principal opinion for the in banc court, expresses the additional view that upon the retrial of this case the jury should be instructed that it may infer the requisite inducement on the part of the defendant from a pattern of his “repeated acceptances over a period of time of substantial benefits,” if the jury is persuaded that such a pattern “eonstitute[s] a communicative act amounting to inducement by implication.” 742 F.2d at 694. The in banc court is divided five to five on whether the “pattern-of-receipt” instruction suggested by Judge Pierce should be given, with three judges expressing neither approval nor disapproval.
Judge Winter, Judge Pratt, and I are among those inclined not to favor the “pattern-of-receipt” instruction, believing it more appropriate to the crime of receiving unlawful gratuities than to the crime of extortion under the Hobbs Act. However, our views on the merits of the instruction are outweighed by our firm conviction that every appellate court, and especially an in banc court, 1 has an obligation to make clear its holding for the guidance of the trial court in the case at hand and for trial courts in subsequent, similar cases. The inevitable imprecision of language doubtless leaves some ambiguity in even the most well-crafted opinions, but a five-to-five standoff with respect to a jury instruction poses a needless and unacceptable risk of uncertainty. The traditional rule that an equal division within a reviewing court affirms the judgment on appeal, see Neil v. Biggers, 409 U.S. 188, 191-92 , 93 S.Ct. 375, 378-79 , 34 L.Ed.2d 401 (1972), would provide no guidance to the trial judge in determining whether or not to give the “pattern-of-receipt” instruction. We consider this standoff an inadequate discharge of the appellate function that should not remain if, in good conscience, it can be resolved.
In these circumstances, and solely to form a clear majority, we join not only Judge Meskill’s opinion but also the concurring opinion of Judge Pierce. As we understand it, this means that the in bane court, by a vote of eleven to two, remands the case for a new trial, at which, by the affirmative votes of eight members of the in banc court, the instruction outlined in Judge Pierce’s concurring opinion may be given, if supported by the evidence.
. The failure of an in banc court to rule authoritatively on the issues before it, if unremedied, would undermine the justification for convening such a court and thereby impair a procedure that should remain available and effective for those infrequent occasions when its use is justified.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9472563. Public record. Not legal advice.