# Tinkoff v. United States > Court of Appeals for the Seventh Circuit · October 16, 1936 · 86 F.2d 868 URL: https://www.frixlaw.com/law-library/cases/9653588 ## Case - **Full name:** Tinkoff v. United States - **Court:** Court of Appeals for the Seventh Circuit - **Decided:** October 16, 1936 - **Citations:** 86 F.2d 868; 18 A.F.T.R. (P-H) 677; 1936 U.S. App. LEXIS 3880 - **Precedential status:** Published - **Opinion:** On rehearing by Alschuler - **Judges:** Alschuler, Lindley, Baltzell - **Cited by:** 68 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/9653588 ## Opinion text On Petition for Rehearing. ALSCHULER, Circuit Judge. In so far as the voluminous petition presents and discusses matters heretofore considered and decided by us, we see no reason for awarding rehearing of them. A few propositions are for the first time in the case brought to our attention by petitioner. Of such, the only one deemed worthy of our discussion is as to the competency of Judge LINDLEY to sit on hearing of the appeal. His disqualification is asserted on the ground that he had previously in the district court heard a motion for a search warrant for the seizure of books and records of Newman and his companies, upon the allegation that' the books and records were fraudulent, and were used as a means of committing a felony under section 1114 (b) of the Revenue Act of 1926, 44 Stat. 116 , and section 146(b) of the Revenue Act of 1928, 26 U.S.C.A. § 145 and note, and that upon hearing such motion he had entered an order for the search warrant to issue. It is contended that, having thus heard and acted upon the motion, he became disqualified to sit on the appeal herein, under the proviso of section 216, tit. 28, U.S.C. (28 Ú.S.C.A. § 216), which is: “Provided, That no judge before whom a cause or question may have been tried or heard in a district court, or existing circuit court, shall sit on the trial or hearing of such cause or question in the circuit court of appeals. It appears from the record that the search warrant was directed against Newman and his companies, and it was seizure of their books and records which was thereby sought. It nowhere appears that the search warrant was directly or indirectly sought against appellant, or that at the time the order was entered (May 13, 1930), there was pending or contemplated any charge or proceeding whatsoever against him. Indeed, it does not from the record appear that appellant was in any manner connected with the case as a defendant, actual or prospective, until more than two years after the order for the warrant was entered, when the indictment against him was returned (June 14, 1932). It is of no consequence here what the status of Newman or his companies would have been with reference to this question, if this- were their appeal. Suffice it now to say that the motion for the search warrant did not involve any “cause or question” wherein the appellant had lawful con *884 cern. The books and records were not his, and in hearing the motion for the search warrant the District Court did not pass on any question respecting appellant. Neither did this appeal involve any question respecting the search warrant .which would nearly or remotely invoke the application here of the quoted proviso. Besides, in our judgment, the contention comes too late to avail appellant. In all these long drawn out proceedings there was no such proposition brought to the attention of the court, the petition for rehearing being the first challenge thereof. If one of the appellate judges had in fact previously heard in the district court the “cause or question” involved on the appeal, this would not of • itself have deprived the appellate court, of jurisdiction. An appellant well aware of his rights might waive the point, and proceed before such appellate court with the hearing of his appeal. There is here no contention that the appellant, himself- a lawyer of experience and for years attorney for Newman and his companies, was not fully cognizant of the situation. In such circumstances it would be quite intolerable to permit him to withhold presentation of the point until after the hearing of the appeal and its decision against him. In Delaney v. U. S., 263 U. S. 586 , 44 S.Ct. 206, 207 , 68 L.Ed. 462 , the court, referring to the same statutory proviso as applied to a similar situation, said: “The section seems not to have attracted the attention or appreciation of petitioner until he had experimented with other means of review and relief from the, conviction adjudged against him. It may be that he did not thereby waive the section which may express a policy and solicitude in the law to keep its tribunals free from bias or prejudgment, rather than to afford a remedy to a litigant, yet it would seem that he should not be permitted to assume the competency of the tribunal to decide for him and its incompetency to decide against him. His action certainly suggests the idea that it was .an afterthought with him that he was at any time in the situation from which the section was intended to relieve.” In State v. Coblentz, 169 Md. 159 , 180 A. 266 , 185 A. 350 , the court, passing on a comparable issue, employed similar language. Petition denied. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9653588. Public record. Not legal advice.