# UNITED STATES of America, Plaintiff-Appellee, v. Herbert Louis BURDEAU, Defendant-Appellant

> Court of Appeals for the Ninth Circuit · February 9, 1999 · 168 F.3d 352

URL: https://www.frixlaw.com/law-library/cases/9491898

## Case

- **Full name:** 99 Cal. Daily Op. Serv. 1068, 99 Daily Journal D.A.R. 1333 United States of America v. Herbert Louis Burdeau
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** February 9, 1999
- **Citations:** 168 F.3d 352; 99 Daily Journal DAR 1333; 50 Fed. R. Serv. 1448; 99 Cal. Daily Op. Serv. 1068; 1999 U.S. App. LEXIS 1763; 1999 WL 55989
- **Precedential status:** Published
- **Opinion:** Concurring in part by Graber
- **Judges:** Boochever, Reinhardt, Graber
- **Cited by:** 46 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/9491898

## How later opinions describe it (automated extraction)

- finding that photo placement, hue and facial 26 5 Cleveland also contended the victim lacked certainty in his identification, did not have 27 much of an opportunity to observe the perpetrator, and gave only a limited description of 1 expression were insubstantial differences b…
- finding that photo placement, hue 19 and facial expression were insubstantial differences between defendant’s photograph and the 20 others in a photographic array and did not create an impermissible suggestion that defendant was 21 the offender
- finding 5 that photo placement, hue and facial expression were insubstantial differences between 6 defendant’s photograph and the others in a photographic array and did not create an 7 impermissible suggestion that defendant was the offender
- holding that a photographic array was not impermissibly suggestive even though the defendant’s picture “was placed in the center of the array, was darker than the rest, and was the only one in which the eyes were closed”
- holding array with defendant = s photograph in center of array, darker than others, and showing subject with eyes closed not impermissibly suggestive

## Opinion text

GRABER, Circuit Judge,
concurring in part and dissenting in part:
I concur in the decision to affirm the judgment of conviction and in the majority’s analysis leading to that holding.
*360 I dissent, however, from the majority’s decisions (1) to withhold issuance of the mandate for sixty days, (2) to include a personal view of the wisdom of the outcome of the case, and (3) to advise the Executive Branch of government about how to exercise its discretion.
With respect to the first two points, I believe that the court’s job is to decide the legal issues presented in the cases that come before it, as carefully, correctly, and promptly as possible. By delaying issuance of the mandate, the majority neglects our responsibility to decide cases promptly. The majority justifies the delay on the ground that it has a “concern over the result in this case” (majority at pp. 368-59), which to the majority “does not appear to be a fair” one (majority at pp. 364-55). But judges, in our deci-sional roles, are not asked for our personal preferences about the results of cases. 1
With respect to the last point, judicial restraint is the lifeblood of judicial independence. This court has been vigilant to protect the work of the judicial branch from encroachment by the other branches of government. And this court has been right to be so. When we cross the line between our branch and the other branches, as I believe the majority has here, we ourselves begin to undermine the separation of powers.
For these reasons, I cannot join in the introduction and conclusion of the majority’s opinion.
. The majority points to several earlier cases (one from this court) that expressed frustration with the legally required result, but in none of those did the court stay the mandate to try to change that result.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9491898. Public record. Not legal advice.