OpenJurist

222 F2d 720 Remmer v. United States

222 F.2d 720

55-1 USTC P 9500

Elmer F. REMMER, Appellant,

v.

UNITED STATES of America, Appellee.

No. 13281.

United States Court of Appeals Ninth Circuit.

May 23, 1955.

Gillen & Golden, San Francisco, Cal., Lohse & Fry, Reno, Nev., Spurgeon Avakian, Oakland, Cal., for appellant.

H. Brian Holland, Asst. Atty. Gen., Ellis N. Slack, John H. Mitchell, Joseph M. Howard, Joseph F. Goetten, Dickinson Thatcher, Sp. Assts. to Atty. Gen., Madison B. Graves, U.S. Atty., for appellee.

Before MATHEWS, STEPHENS and ORR, Circuit Judges.

PER CURIAM.

1

In this case, a judgment of the District Court was affirmed by us on May 28, 1953.1 The Supreme Court granted certiorari2 and on March 8, 1954, vacated our decision and remanded the case to the District Court3 with directions to hold a hearing to determine whether an incident which occurred during the trial and was reported to the District Court by a juror4 was harmful to appellant, and if after hearing it was found to have been harmful, to grant a new trial.

2

Accordingly, the District Court (Judge Louis E. Goodman presiding) held a hearing, and Judge Goodman, on July 10, 1954, filed his opinion, findings and order, thereby finding and determining that the incident was harmless to appellant. A certified copy of Judge Goodman's opinion, finding and order having been transmitted to the clerk of the Supreme Court, and appellant having moved the Supreme Court for leave to file a petition for rehearing, the Supreme Court, on January 10, 1955, made the following order:5

3

'The motion for leave to file and the petition for rehearing are granted. This case is restored to the docket, and the whole record, including the findings and order of Judge Goodman, is remanded to the Court of Appeals for its consideration on the errors assigned when the case was before the Court of Appeals before, in order that the Court on the whole record may reconsider the case in the light of our recent decisions in Holland v. United States, (348 U.S. 121) 75 S.Ct. 127; Friedberg v. United States, (348 U.S. 142) 75 S.Ct. 138; Smith v. United States, (348 U.S. 147) 75 S.Ct. 194; and United States v. Calderon, (348 U.S. 160) 75 S.Ct. 186, and Judge Goodman's findings and order.'

4

We have complied with the Supreme Court's order and have concluded that our decision of May 28, 1953, and Judge Goodman's findings and order6 were correct. The judgment affirmed by us on May 28, 1953, is, therefore, again affirmed.

1 Remmer v. United States, 9 Cir., 205 F.2d 277.

2 Id., 346 U.S. 884, 74 S.Ct. 144, 98 L.Ed. 389.

3 Id., 347 U.S. 227, 74 S.Ct. 450, 98 L.Ed. 654.

4 The incident was described in our opinion, 205 F.2d 277, 291, and in the Supreme Court's opinion, 347 U.S. 227, 228, 74 S.Ct. 450.

5 Remmer v. United States, 348 U.S. 904, 75 S.Ct. 288.

6 122 F.Supp. 673.