The successful petition for rehearing in Herzog

• Jurisdiction: United States

Section 170. The successful petition for rehearing in Herzog v. United States.—Below is set out, verbatim, the petition for rehearing filed in the Herzog case; the cover, index, and the motion to stay the mandate (in the event of denial) have been omitted.

No. 14,611 In the UNITED STATES COURT OF APPEALS For the Ninth Circuit

J. A. HERZOG Appellant,

vs.

UNITED STATES OF AMERICA Appellee.

APPELLANT'S PETITION FOR A REHEARING

To the Honorable Clifton Mathews, Richard H. Chambers and William M. Byrne, Judges of the United States Court of Appeals for the Ninth Circuit:

Comes now the appellant in the above-entitled case, and respectfully prays the Court to grant a rehearing.

I. The principal question in the present posture of the case is whether the trial judge's charge to the jury on willfulness was correct, and whether, not having been objected to under Criminal Rule 30 at the trial, this Court on appeal may consider the alleged error under Criminal Rule 52 (b).

In Bloch v. United States, 221 F. 2d 786, a division of this Court (Bone and Pope, Circuit Judges; Mur-[*2]ray, District Judge), held an identical instruction to be erroneous, held that it could be considered in the absence of objection below, and reversed the conviction.

In Brown v. United States, 222 F. 2d 293, another division of this Court (Stephens and Fee, Circuit Judges; Wiig, District Judge) held that there was no power to consider errors not objected to below.

In the instant case, still a third division of this Court (Mathews and Chambers, Circuit Judges; Byrne, District Judge), disagreed with the Bloch case and agreed with the Brown case, "which was decided three days after and overrules sub silentio the Bloch case" (p. 7 of slip opinion). Judge Chambers concurred, saying (p. 11 of slip opinion), "Although I disagree with the decision in the Bloch case, I would be reluctant to go against it were it not for my belief that Brown v. United States, 9 Cir., 222 F. 2d 293, already has overruled Bloch sub silentio."

II. Bloch was decided on April 11, 1955, Brown on April 14, 1955. The Government petitioned for a rehearing in the Bloch case. If Brown had overruled Bloch, then, obviously, that petition for rehearing should have been granted. In fact, it was denied on June 14, 1955, in an opinion reported at 223 F. 2d 297.

If therefore it can properly be said that Brown overruled Bloch sub silentio when rendered by a different division of this Court three days later, then it can be contended with equal force that Brown was in [*3] turn overruled sub silentio by the denial of the Government's petition for rehearing in Bloch two months after that.

III. There can be no disagreement with what was said in the prevailing opinion in this case (p. 7 of slip opinion) : "The Brown case and the Bloch case cannot both be right."

In our view, the Bloch case, which held that failure to object under Rule 30 was no bar to the invocation of Rule 52 (b) by the Appellate Court, is correct. That view has the support of no less than six other circuits.

First Circuit: Daigle v. United States, 181 F. 2d 311, 313 (instruction not objected to below considered by the Appellate Court) ; Lash v. United States, 221 F. 2d 237, 240, certiorari denied, 350 U. S. 826 (no conflict between Rules 30 and 52 (b); they are to be construed together) .

Third Circuit: United States v. Cumberland, 200 F. 2d 609 (judgment reversed for errors in instructions not objected to at the trial); United States v. Ward, 168 F. 2d 226, 228 (plain error...