Bloch v. United States, 14266.

Citation223 F.2d 297
Decision Date14 June 1955
Docket NumberNo. 14266.,14266.
PartiesBernard BLOCH, Appellant, v. UNITED STATES of America, Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (9th Circuit)

Wade Church, Phoenix, Ariz., for appellant.

Jack D. H. Hays, U. S. Atty., Robert S. Murlless, Asst. U. S. Atty., Phoenix, Ariz., for appellee.

Before BONE and POPE, Circuit Judges, and MURRAY, District Judge.

PER CURIAM.

The United States has petitioned for a rehearing in this case and introduces its petition by confessing prejudicial error resulting from the prosecutor's cross-examination of appellant concerning illegal operations, fees received from such operations, illicit relations with a named woman, and denial of a medical license. These are the questions to which our opinion alluded in connection with the discussion of appellant's second specification of error. The Government then suggests that since it concedes that a reversal of the appellant's conviction is proper, we should reexamine what we had to say upon the instruction concerning willfulness which we held was plain error and which constituted the basis for our judgment of reversal. The argument is that our views about that instruction are not in line with what this court held in Bateman v. United States, 9 Cir., 212 F.2d 61, 70. It is urged that our decision here is contrary to the decision in the Bateman case where a similar instruction was said not to be prejudicially erroneous when viewed with due regard to the "instructions considered as a whole."

Subsequent to our opinion in this case, another division of this court handed down its opinion in Legatos v. United States, 9 Cir., 222 F.2d 678, which followed the Bateman case. There a similar instruction had been given and the court said, as in the Bateman case, "It is our conclusion that, considered as a whole the Court's instructions on intent and willfulness clearly and correctly stated the law and were not such as to mislead the jury." (Emphasis added.)

We note also the case of Berkovitz v. United States, 5 Cir., 213 F.2d 468, to which our attention had not been called at the time our opinion was filed.1 The court there expressly disapproved and held erroneous an instruction not to be distinguished from the one which met with our disapproval in this case. We think that it may fairly be said that no case may be found where any court has specifically approved an instruction such as that involved here. It is obvious that since the decision in Morissette v. United States, 342 U.S. 246, 72 S.Ct. 240, 96 L. Ed. 288, it would be impossible for any court to give that instruction its approval.

As we read the Bateman and the Legatos cases, supra, we think that in substance what was there held is that in view of the additional instructions given in those particular cases, the...

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13 cases
  • U.S. v. Chiantese, 75-3534
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • October 14, 1977
    ...Cir. 1954); Wardlaw v. United States, 203 F.2d 884 (5th Cir. 1953); and Bloch v. United States, 221 F.2d 786 (9th Cir.), reh. denied, 223 F.2d 297 (1955), Judge Gewin wrote for the The opinions held that the effect of the charge was to tell the jury that it could draw the conclusion that th......
  • Sherwin v. United States
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • August 8, 1963
    ...were held to be error in a tax fraud case similar to the present one — Bloch v. United States, 9 Cir., 221 F.2d 786, rehearing denied 223 F.2d 297; and see Haner v. United States, 5 Cir., 315 F.2d The first of these instructions, referred to by appellant as the so-called "Murdock instructio......
  • Herzog v. United States, 14611.
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 11, 1955
    ...a supplemental brief following oral argument, this court's decision in Bloch v. United States, 9 Cir., 221 F.2d 786, rehearing denied 9 Cir., 223 F.2d 297, requires this division of the court to disregard Rule 30, and "This Court's decision in the Bloch case requires reversal here." Appella......
  • Com. v. Brattman
    • United States
    • Appeals Court of Massachusetts
    • September 30, 1980
    ...v. Freeman, 352 Mass. 556, 564, 227 N.E.2d 3 (1967). Also see Bloch v. United States, 221 F.2d 786, 788 (9th Cir. 1955), rehearing denied, 223 F.2d 297; Herzog v. United States, 235 F.2d 664, 666-667 (9th Cir. 1956), and cases cited; Fed.R.Crim.P. 1. The defendant moved for a required findi......
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