United States v. Pipefitters Local Union No. 562, 19466.

Citation434 F.2d 1127
Decision Date17 December 1970
Docket NumberNo. 19466.,19466.
PartiesUNITED STATES of America, Appellee, v. PIPEFITTERS LOCAL UNION NO. 562, etc., et al., Appellants.
CourtUnited States Courts of Appeals. United States Court of Appeals (8th Circuit)

434 F.2d 1127 (1970)

UNITED STATES of America, Appellee,
PIPEFITTERS LOCAL UNION NO. 562, etc., et al., Appellants.

No. 19466.

United States Court of Appeals, Eighth Circuit.

November 24, 1970.

Rehearing Denied December 17, 1970.

Murry L. Randall, St. Louis, Mo., for appellants.

Edgar N. Brown, Atty., U. S. Department of Justice, Washington, D. C., for appellee.

434 F.2d 1128


Rehearing En Banc Denied December 17, 1970.


On June 8, 1970, the conviction of Pipefitters Local Union No. 562, Lawrence L. Callanan, John L. Lawler and George Seaton on a charge of conspiracy under 18 U.S.C.A. § 371 to violate 18 U.S.C.A. § 610, which makes it unlawful for a labor organization to make a contribution or expenditure in connection with any election to federal office, was affirmed by a panel of this court consisting of Judges Van Oosterhout, Blackmun and Heaney. Judge Heaney filed a dissent. The opinion is reported at 434 F.2d 1116.

Thereafter on August 19, 1970, a rehearing in banc was granted by a majority vote of the active judges of this court and the judgment affirming the conviction was vacated and set aside. The court in banc on October 14, 1970, heard this case.

The judgments of conviction and sentences imposed are affirmed for the reasons set out in the panel majority opinion filed June 8, 1970. Judgment shall be entered accordingly. Affirmed.

MATTHES, Chief Judge, with whom Circuit Judges VAN OOSTERHOUT, MEHAFFY and GIBSON join, concurring.

I join in the affirmance of the judgment of conviction. The course traveled by this appeal in this court, as a result of my brother Heaney's dissenting opinion, motivates me to express my views in regard to procedural aspects of an appeal in the hope that this court, whether sitting en banc or as a panel, hereafter will adhere to what I regard to be deeply entrenched principles applicable to the consideration and disposition of cases by courts of appeals.

From the outset of this case appellants challenged the constitutionality of 18 U.S.C. § 610 and sought dismissal of the indictment on that ground. The validity of the statute was a live issue throughout the trial. Additionally, at trial appellants requested an instruction submitting the issue of voluntariness, and objected to the instruction which made reference to this question. See Footnote 2, Judge Heaney's dissenting opinion, reported at 434 F.2d 1125 (8th Cir. 1970). Thus, there can be no doubt that appellants laid the proper foundation in the district court for challenging on appeal the propriety of the submission of the case to the jury. But appellants, represented by a battery of retained counsel, experienced and skilled in the defense of criminal cases, on appeal abandoned all errors asserted during the trial and elected to proceed in this court by presenting only issues for review designed to bring about an outright reversal and discharge of the appellants.

Appellants' initial exhaustive brief, consisting of 98 pages, stands as irrefutable evidence that they were consciously and purposefully foregoing any relief on the ground of trial irregularities. Manifestly, they were familiar with the provisions of Rule 28(a), Federal Rules of Appellate Procedure, relating to the contents of the brief of an appellant, and included in their brief a "Statement Of Issues Presented For Review." These issues summarized were:

I. The indictment failed to allege an offense under 18 U.S.C. § 610;

II. Section 610 is unconstitutional because it abridged appellants' and all union members First Amendment rights;

III. Section 610 is unconstitutional because of vagueness;

IV. Section 610 deprives unions and their members of liberty and property without due process, in violation of the Fifth Amendment;

V. Section 610, as construed and applied by the district court, unlawfully abridges the rights of appellants to vote and to choose their senators and representatives in Congress as guaranteed by Article I, Section 2 and the Seventeenth Amendment to the Constitution;

434 F.2d 1129

VI. The verdict of the jury negating a willful violation of § 610 required an acquittal on the conspiracy charge.

In the expansive development of the foregoing issues in the argument portion of appellants' brief, there is no hint or suggestion of error in giving or rejecting instructions. And to remove any doubt as to the precise relief sought by appellants in this court they concluded their brief with this statement:

For each of the reasons stated herein above, we respectfully submit that the judgment below should be reversed. Each of said reasons requires a reversal without a new trial, and no request is made for a new trial. The relief sought, and impelled by said reasons, is a reversal and discharge of the defendants."

The majority of the original panel, which affirmed, squarely met and considered the issues presented by appellants. But, notwithstanding the obvious, namely, that appellants had deliberately and consciously elected to abandon and waive any and all claims of prejudicial trial errors, my brother Heaney, sua sponte, injected an issue foreign to appellants' brief, faulted the district court for not properly instructing the jury as to whether the contributions to candidates had been voluntarily made, and voted to remand for another trial.

The rules designed to govern appellate procedure clearly delineated in the Federal Rules of Appellate Procedure, and sanctioned by many decisions, convinces me that a court of appeals should confine its review to the issues which an appellant properly raises and presents in his brief. Certainly, the reviewing court should not assume the role of an advocate and engage in the practice of ferreting out errors deliberately and consciously abandoned by an appellant, in order to grant relief not asked for, but in fact specifically disclaimed. Such gratuitous procedure by the reviewing court does not, in my view, comport with the proper and orderly administration of justice.

The salutary purpose of Rule 28(a) (2), Federal Rules of Appellate Procedure, providing that the brief of an appellant shall contain "a statement of the issues presented for review"1 and of pre-1968 local rules of this court, has been spelled out in meaningful language. This court, speaking through Judge Kimbrough Stone, stated, "the purpose of the rule is to definitely and separately point out the errors complained of in order to clearly define and confine the issues on appeal." (Emphasis supplied.) New York Casualty Co. v. Young Men's C. Assn., 119 F.2d 387, 389 (8th Cir. 1941); Accord, Cohen v. United States, 142 F.2d 861, 863 (8th Cir. 1944); Turner County S. D. v. Miller, 170 F.2d 820, 828 (8th Cir. 1948);2 Mogis v. LymanRichey Sand & Gravel Corp., 189 F.2d 130, 133 (8th Cir. 1951);3 Chain Institute v. Federal Trade Commission, 246 F.2d 231, 235 (8th Cir. 1957); Bell v. United States, 251 F.2d 490, 493-494 (8th Cir. 1958).4 In McIntosh v. United States, 362 F.2d 636 (8th Cir. 1966), Judge Blackmun, now an Associate Justice of the Supreme Court, reiterated that specifications of error not urged in the brief on appeal are abandoned. Finally, in Smith v. American Guild of Variety Artists, 368 F.2d 511, 514 (8th Cir. 1966), Judge Van Oosterhout again recognized the rule and supported the court's refusal to consider a point not raised or briefed with numerous citations. But see Laclede Gas Co. v. N.L.R.B., 421 F.2d 610 (8th Cir. 1970),5 where Judges Heaney and

434 F.2d 1130
Lay remanded the case to the National Labor Relations Board for consideration of an issue not raised on appeal. Judge Van Oosterhout dissented on the ground that since the issue was not raised the cause should not be remanded

I am not unmindful that the United States Supreme Court has established the principle that "if two questions are raised, one of non-unconstitutional and the other of constitutional nature, and a decision of the non-constitutional question would make unnecessary a decision of the constitutional question, the former will be decided." Alma Motor Co. v. Timken-Detroit Axle Co., 329 U.S. 129, 136, 67 S.Ct. 231, 234, 91 L.Ed. 128 (1946); Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 347, 56 S.Ct. 466, 80 L.Ed. 688 (Brandeis, J., concurring); Clay v. Sun Insurance Office, 363 U.S. 207, 80 S.Ct. 1222, 4 L.Ed.2d 1170 (1959).6 Nor am I unaware of the practice of the Supreme Court of refusing to decide constitutional questions when other grounds of decision can be found in the record, whether or not they have been properly raised before the court by the parties. Neese v. Southern Ry., 350 U.S. 77, 76 S.Ct. 131, 100 L.Ed. 60 (1955); Communist Party of United States v. Subversive Activities Control Bd., 367 U.S. 1, 119-120, 81 S.Ct. 1357, 6 L.Ed.2d 625 (1961) (Douglas, J., dissenting).

But, notwithstanding this principle, and with due deference to the teachings of the Supreme Court, the conclusion is inescapable that the practice and procedure in the United States courts of appeals are governed by the Federal Rules of Appellate Procedure.

It is known generally by the federal bench and the members of the legal profession that for a number of years many judges, lawyers and legal scholars recognized a compelling need for uniform rules to govern the practice and procedure in the United States court of appeals. The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, after lengthy, responsible and deliberate study and consideration, culminated its efforts, and on December 4, 1967, the Supreme Court of the United States, by appropriate order, adopted the Federal Rules of Appellate Procedure. The Supreme Court, in its order of adoption, provided that these rules are to govern the practice in appeals to United States courts of appeals from the United States district...

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    • U.S. District Court — Southern District of New York
    • 8 Abril 1975
    ...447 (1966). 26 United States v. Pipefitters Local Union No. 562, 434 F.2d 1116, 1123-24 (8th Cir. 1970), adhered to in en banc decision, 434 F.2d 1127, rev'd and vacated on other grounds, 407 U.S. 385, 92 S.Ct. 2247, 33 L.Ed.2d 11 (1972). See Broadrick v. Oklahoma, 413 U.S. 601, 607-08, 93 ......
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