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348 F.2d 167

Docket No. 6483.

Dichner v. United States

First Circuit Court of Appeals

Decided July 15, 1965.

First Circuit Court of Appeals · decided 1965-07-15

2 counsel of record

Key passage — most relied on by later courts

““In this court the defendant engages in the much too popular pastime of scutinizing [sic] the transcript and alleging possible errors that had not been noted before. We have, on a number of occasions, stated that we will not consider such matters unless the error was of great magnitude. See Lash v. United States, 1 Cir., 1955, 221 F.2d 237 , cert. den. 350 U.S. 826 , 76 S.Ct. 55 , 100 L.Ed. 738 . We would add that the presentation of routine, previously unobjected to matters, often not error at all, as if we had made no such announcement, unduly burdens the court and serves only to cast unmerited reflection upon trial counsel, who normally is in a better position to appraise the propriety and materiality of the conduct subsequently criticized, and presumably purposely did not object. It is also unfair to the court and the public generally if a defendant can have two bites at the cherry by saying nothing and then coming back and asking for a second chance.””

quoted by 2 later decisions, including United States v. Summerour, United States v. Smolar

“`Plain error' means precisely that, and `exceptional circumstances' must in fact be exceptional.”

quoted by 2 later decisions, including United States v. Summerour, United States v. Mitchell

Applies 18 U.S.C. § 1010 · 18 U.S.C. § 3282

Relies on Stern v. Board of Levee Commissioners · Brulotte Et Al. v. Thys Company · Silber v. United States

Good law ✅— No negative treatment on recordhow we know

Decided 1965-07-15

How this case has been cited

Cited by 35 later decisions — most recently July 2012 · most notably Gregory v. United States (1966), Nimrod v. Sylvester (1966)

31 federal appellate · 1 district ·

210196519701980199020002010decided

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

¶1Edward M. Dangel, Boston, Mass., with whom Marshall Medoff, Boston, Mass., Samuel Landa, Pittsfield, Mass., and Dangel & Sherry, Boston, Mass., were on brief, for appellant.

¶2Murray H. Falk, Asst. U. S. Atty., with whom W. Arthur Garrity, Jr., U. S. Atty., Boston, Mass., was on brief, for appellee.

¶3Before ALDRICH, Chief Judge, LUM-BARD* Chief Judge, and LEWIS,* Circuit Judge.

¶5*168ALDRICH, Chief Judge.

¶6The principal point raised in this appeal from a conviction for having wilfully made a false statement in order to obtain a FHA loan, 18 U.S.C. § 1010, is whether the false completion certificate, itself undated, was submitted to the bank a few days prior to the date appearing on the loan application, so that the statute of limitations had run. 18 U.S.C. § 3282. We have reviewed the record with care and find no basis for ruling as matter of law that the evidence required a finding favorable to the defendant’s position. It may be that the government is contending for a somewhat unusual order of events, but matters which defendant freely admits show of themselves an unusual situation. The trial was conducted with great consideration for the defendant, the jury was fairly instructed as to the question involved, and we see no ground for complaint.

¶7In this court the defendant engages in the much too popular pastime of scutinizing the transcript and alleging possible errors that had not been noted before. We have, on a number of occasions, stated that we will not consider such matters unless the error was of great magnitude. See Lash v. United States, 1 Cir., 1955, 221 F.2d 237, cert. den. 350 U.S. 826, 76 S.Ct. 55, 100 L.Ed. 738. We would add that the presentation of routine, previously unobjected to matters, often not error at all, as if we had made no such announcement, unduly burdens the court and serves only to cast unmerited reflection upon trial counsel, who normally is in a better position to appraise the propriety and materiality of the conduct subsequently criticized, and presumably purposely did not object. It is also unfair to the court and the public generally if a defendant can have two bites at the cherry by saying nothing and then coming back and asking for a second chance. Cf. Reiss v. United States, 1 Cir., 1963, 324 F.2d 680, cert. den. Jacobs v. United States, 376 U.S. 911, 84 S.Ct. 667, 11 L.Ed.2d 609. Finally, and by no means unimportantly, unless we take the time to review such subsequently discovered “errors” on the merits, our refusal doubtless has the effect of causing the defendant to feel, quite improperly, that he has been unjustly treated.

¶8We believe it high time that the bar- realize that we mean what we say in this regard. “Plain error” means precisely that, and “exceptional circumstances” must in fact be exceptional. See Silber v. United States, 1962, 370 U.S. 717, 718, 82 S.Ct. 1287, 8 L.Ed.2d 798. Counsel’s attempt to make plain error from any error that can be shown to be of a prejudicial character would make the rule almost meaningless. Error which is not prejudicial at all is not a ground for reversal even if objection has been fully noted. See F.R.Crim.P. 52(a).

¶9Affirmed.

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