United States v. Donald Lavern Culbert

581 F.2d 799 UNITED STATES of America, Appellee, v. Donald Lavern CULBERT, Appellant. No. 76-1860. United States Court of Appeals, Ninth Circuit. Sept. 8, 1978. An Appeal from the United States District Court; Lloyd H. Burke, judge. Frank O. Bell, Asst. Federal Public Defender (argued), San Francisco, Cal., for appellant. Arthur F. Norton, Atty. (argued), Dept. of Justice, Washington, D. C., for appellee. Before ELY, CARTER and GOODWIN, Circuit Judges. ORDER — 1 — The Supreme Court of the United States reversed the judgment of the Ninth Circuit Court of Appeals in United States v. Culbert, 548 F.2d 1355, and held valid the conviction of Culbert on Count 2 for violation of the Hobbs Act, 18 U.S.C. § 1951, United States v. Culbert, --- U.S. ----, 98 S.Ct. 1112, 55 L.Ed.2d 349 (1978). The case is again before us. — 2 — The conviction for robbery in Count 1 is reversed for the reasons set forth in our first opinion, Culbert, supra. — 3 — The conviction in Count 2 for violation of the Hobbs Act, 18 U.S.C. § 1951, is affirmed. — 4 — No petition for rehearing will be entertained. The mandate will be issued and spread forthwith. ELY, Circuit Judge (dissenting): — 5 — I respectfully dissent, doing so only because of our court's opinion in United States v. Snell, 550 F.2d 515 (9th Cir. 1977). In the present case, the Supreme Court did not discuss the problem that we resolved in Snell, even though the problem was presented in the brief that Culbert filed in our court. I have no doubt that the Supreme Court's omission is attributable to a policy that it will not meet undecided issues in a particular case unless those issues have first been openly considered by the inferior court. My tentative opinion is that my Brothers now disregard the teaching of Snell, but even if I am mistaken as to the legal point, I think it is wrong for the majority now to affirm Culbert's conviction summarily without even a mention of Snell.