UNITED STATES of America, Plaintiff-Appellee, v. Vernon Percy HOWARD, Defendant-Appellant.
No. 25162.
United States Court of Appeals, Ninth Circuit.
Oct. 9, 1970.
433 F.2d 1188
In this appeal Hemes also contends that the local board erred in classifying him I-S(C) on November 10, 1966, contending that he was a full time undergraduate student on that date and was therefore entitled to a classification of II-S. The gist of the complaint is that I-S(C) classification can be granted only once and therefore Hemes might be prevented from taking advantage of this classification at a later date when he might use it to a better advantage.
There is no showing that Hemes was deprived of any rights or prejudiced in any manner by the alleged misclassification. Certainly it has no material bearing on the present habeas corpus proceedings as it did not reflect upon or bring about his induction. Where no harm or prejudice resulted from a violation of a regulation, if such did occur, the proceedings of the board are not invalidated. United States v. Primous, 420 F.2d 33 (7th Cir. 1970). In the event that at some later time he should be a student otherwise eligible for I-S(C) and should his local board at that time deny him that classification because of his having previously been the recipient thereof, then the alleged deprivation would be out of the realm of the theoretical. The local board would then be in a position to determine upon the facts whether he should be entitled to the I-S(C) classification.
For the reasons hereinbefore set out the order of the district court is reversed and the case remanded for the entry of an order granting the writ.
Reversed and remanded.
A. Lee Petersen (argued), Asst. U. S. Atty., Douglas B. Baily, U. S. Atty., Anchorage, Alaska, for plaintiff-appellee.
Before MADDEN,* Judge, United States Court of Claims, and ELY, and HUFSTEDLER, Circuit Judges.
J. WARREN MADDEN, Judge, announced the judgment of the court, and the following opinion.
The United States put Howard, hereinafter designated as the defendant, on trial on the second count of an indictment, which count charged that the defendant sold and facilitated the sale of heroin, knowing that the heroin had been imported into the United States in violation of
At the trial, the Government‘s evidence was to the effect that the defendant had an active part in the sale of certain heroin. At the close of the Government‘s case the defendant‘s counsel made a motion for an acquittal. The motion was denied.
The defendant testified in his own behalf. He was the only witness for the defense.
The Court asked the Government if it had any proposed instructions to offer. The Government requested that an instruction referring to the inference of importation and knowledge of importation, from the proof of possession of a narcotic, as authorized by the second paragraph of
The Government then made a motion to re-open its case, and for a continuance. This would have been for the purpose of presenting, if it could, evidence that the heroin in question had in fact been imported, and that the defendant knew that it had been imported. The Court denied the Government‘s motion.
The defendant renewed his motion for an acquittal. The motion was denied.
The trial court was in error in refusing to give the instruction, requested by the Government, based upon paragraph 2 of
The jury did not acquit the defendant. It convicted him. Therefore, in order to escape that conviction, it had become necessary for him to appeal. One who, by a successful appeal, gets the prior judgment reversed because it was erroneous, cannot, ordinarily, validly object to being subjected to a new trial in which the error of which he complained will not be repeated. But in the instant case, in which the error was the failure of the trial court to direct an acquittal by the jury, or itself render a judgment of acquittal, what the appellant desires, quite naturally, is a determination by the appellate court that will put the appellant in the position that he was in when, in the former trial, he was entitled to an acquittal and would have gotten it, but for the second error of the trial court.
Efforts by litigants to induce an appellate court to reconstruct a trial record by going back to an error occurring early in a trial, determining how the trial would have developed if it had not been warped by that early error and thus arriving at the result which would have been arrived at if a trial without that error, instead of the trial that was actually held, had taken place, have not been fruitful. The case of Kline v. Kachmar, 360 Pa. 396, 61 A.2d 825 (1948) is an example. In Kline, the Supreme Court of Pennsylvania declined to reconstruct the record as requested, although, in refusing, it was obliged to overrule an earlier Pennsylvania case, Conley v. Mervis, 324 Pa. 577, 587, 188 A. 350 (1936).
The windfall acquittal which the defendant might well have received as a result of the trial court‘s first error, would have had no relation to the merits of the case. The defendant acquired no vested right in that error. Normal procedure requires that the defendant‘s conviction be reversed and that the case be remanded for further proceedings. Other errors complained of by the defendant may not
Reversed and remanded.
ELY, Circuit Judge, with whom HUFSTEDLER, Circuit Judge, joins (concurring):
Judge Hufstedler and I concur in the result reached in Judge Madden‘s opinion, but in concluding that Howard may be retried, we take a slightly different approach. We cannot see that any serious problem concerning the issue of double jeopardy is presented. Nor can we see that the two Pennsylvania civil cases cited in the principal opinion are significantly germane. When a judgment of conviction is reversed for insufficiency of the evidence, the determination of whether the indictment should be dismissed or there should be a retrial rests within the discretion of the court. See, e. g., Bryan v. United States, 338 U.S. 552, 70 S.Ct. 317, 94 L.Ed. 335 (1950); C. Wright, Federal Practice and Procedure, Criminal § 470. When an appellate court exercises this discretion, it must look to the record, undertaking to ascertain if the prosecution had the opportunity fully to develop its case, or, in fact, did so. If it did, or if it appears that it was responsible for its failure adequately so to do, then it is not ordinarily fair that the successful appellant should be required to undergo another trial. See, e. g., Davis v. United States, 382 F.2d 221 (9th Cir. 1967); Gonzales v. United States, 374 F.2d 112 (9th Cir. 1967); Whaley v. United States, 362 F.2d 938 (9th Cir. 1966).
Here, it can hardly be said that the prosecution‘s case was fully developed. In the light of Leary v. United States, 395 U.S. 6, 89 S.Ct. 1532, 23 L.Ed.2d 57 (1969), the district judge quite understandably resolved the question whether the prosecution was entitled to the application of the statutory presumption in favor of the accused. Subsequently, the Supreme Court, drawing a distinction between the presumption relating to marijuana, invalidated in Leary, and the presumption relating to heroin, held that the application of the latter is appropriate. Turner v. United States, 396 U.S. 398, 90 S.Ct. 642, 24 L.Ed.2d 610 (1970). Thus, when the district judge disposed of the motion for judgment of acquittal, the prosecution, through no fault of its own, had been deprived of an advantage to which it was entitled in the court‘s consideration of the motion. In these circumstances, its case has not been fully developed, and it cannot be faulted for the deficiency of proof which requires reversal.