272 F.2d 487 (9th Cir. 1959), 16287, Leahy v. United States

Docket Nº:16287.
Citation:272 F.2d 487
Party Name:Charles F. LEAHY, Appellant, v. UNITED STATES of America, Appellee.
Case Date:November 16, 1959
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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Page 487

272 F.2d 487 (9th Cir. 1959)

Charles F. LEAHY, Appellant,

v.

UNITED STATES of America, Appellee.

No. 16287.

United States Court of Appeals, Ninth Circuit.

November 16, 1959

Rehearing Denied Jan. 25, 1960.

3109.

Page 488

Arthur D. Klang, Clark A. Barrett, San Francisco, Cal., for appellant.

Lynn J. Gillard, U.S. Atty., John Kaplan, John H. Riordan, Jr., San Francisco, Cal., for appellee.

Before CHAMBERS, ORR and POPE, Circuit Judges.

ORR, Circuit Judge.

Appellant was convicted on two counts of an indictment charging him with (1) evasion of an occupational tax due on wagering activities and (2) conspiracy to evade such payment. Incident to an arrest of appellant, the arresting officers seized and took possession of certain papers, etc. Thereafter and before trial, appellant moved to suppress the seized articles. A hearing was held and the motion denied. The cause came on for trial and the seized articles were introduced into evidence over the objection of appellant. Subsequent to verdict a motion for a new trial was made in which the failure to suppress and the overruling of the objection to the introduction of the evidence was stressed. The trial judge, who did not hear the motion to suppress, dismissed count one of the indictment because of its belief that the case of Miller v. United States, 1958, 357 U.S. 301, 78 S.Ct. 1190, 2 L.Ed.2d 1332, handed down by the Supreme Court of the United States subsequent to the denial of the motion to suppress and the overruling of the objection to the introduction of the evidence, required it. The trial court refused to dismiss count two, giving as its reason that notwithstanding its belief that the evidence obtained by the search and seizure was inadmissible there was other evidence sufficient to sustain the conviction. This theory is incorrect. The rule, as we understand it, is that if substantial inadmissible evidence goes before the jury, then, notwithstanding there is remaining substantial admissible evidence which would support a verdict, a new trial is required because the court cannot know what evidence influenced the minds of the jurors. Some, if not all, may have been in part at least persuaded to bring in a guilty verdict by the inadmissible evidence.

At this point, appellant comes forward with the claim that although the trial court did not dismiss count two, by reason of the fact that it expressed a view that the seized evidence was inadmissible, we are bound thereby on this appeal because the government cannot

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appeal. The answer is that the government has not appealed nor attempted to appeal. It is brought to this court by appellant upon his complaint that the trial court committed error in refusing to suppress certain evidence and its erroneous allowance of the introduction of said evidence at the trial. The government has a right to respond to an appeal and the appeal of appellant imposes upon us the duty of determining the questions which he raises thereon. The statement of the trial court as to its opinion of the admissibility of the seized evidence in so far as count two is concerned is no more than an expression of opinion. We have no such situation as existed in Umbriaco v. United States, 9 Cir., 1958, 258 F.2d 625. There the government attempted to appeal. It was without that privilege. The instant case is completely different from Alford v. United states, 9 Cir., 1930, 41 F.2d 157. There the defendant appealed claiming that the evidence was insufficient to support the verdict. In defending the verdict, the government asked the appellate court in making its determination to consider evidence improperly excluded by the trial court and not considered by the jury. This an appellate court may not do. In the instant case, on the other hand, the evidence in question had been considered by the jury, and may, therefore, also be considered by this court if we determine that the evidence had been properly admitted into evidence by the...

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