United States v. Theodore J. Isaacs and Otto Kerner, Jr.

JOHNSEN, Senior Circuit Judge

(concurring in part, dissenting in part).

I am in agreement with most of the holdings and statements of the per cur-iam but differ with a few of them.

I agree that the district court was possessed of subject-matter jurisdiction of the charges against Kerner, but to me this power was derived from Article III, Section 1, of the Constitution and from 18 U.S.C. § 3231 of the Criminal Code.

Under the constitutional provision, the judicial power of the United States has been vested “in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish.” In creating the district courts, Congress manifestly had the right under the constitutional provision to confer such nature and extent of subject-matter jurisdiction upon them as it chose. Under 18 U.S.C. § 3231, it chose to give the district courts “original jurisdiction * * * of all offenses against the laws of the United States.”

If the ambiguous provision of Article I, Section 3, Clause 7 of the Constitution was intended to mean that any officer of the United States, who was subject to having impeachment proceedings brought against him, could not be made *1167to stand trial on criminal charges until after he had been convicted in impeachment proceedings, this in my opinion would at most provide a personal privilege or immunity to him which he was at liberty to assert or not to assert, as he chose. Kerner must be held to have chosen not to attempt to assert any such privilege or immunity, for he never raised the question in any form before the trial court — neither by attempt to have the indictment dismissed, nor by motion to have the trial proceeding stayed.

This is as far, in my opinion, as it is in any event necessary to go to sustain the district court’s jurisdiction to try Kerner. Whatever determination may ultimately be necessary to be made of the impeachment and criminal offense question, it does not seem to me that it is necessary or wise to undertake to make that determination in the present situation. The question has been the subject of bitter agitation and heated dispute on both sides, and the majority’s holding can open the door to consequences which it may be better for the nation not to have to experience in the turbulence of the present times. I would hold that, on Kerner’s submission of himself to trial, there is no need to decide the specific question.

I am unable to agree with the majority’s affirmance of Kerner’s conviction of mail fraud under Counts VIII and IX, as to which the mailings occurred after August, 1966. Kerner had by that time become the full beneficial owner of the race track stock involved in the bribery. Mrs. Everett no longer had any right of control over it. Kerner had the right to continue to hold the stock, whose value had been increasing, or to sell it. He chose to sell it, for reasons which are not difficult to infer. What Mrs. Everett had done in bribery was to obligate herself to sell and later to make actual sale of the race track stock to Kerner at a price greatly below its market value, in expected favorable treatment of her racing interests. When the sale was completed, the stock became the subject of ownership in Kerner, and the bribery offense had reached fruition. The incidents after the use of the mails which occurred in relation to Kerner’s disposition of the stock or his obtaining the money therefor, did not go to the completion of the bribery, as between Mrs'. Everett and Kerner. United States v. Maze, 414 U.S. 395, 94 S.Ct. 645, 38 L. Ed.2d 603, decided by the Supreme Court on January 8, 1974, seems to me to require reversal as to these two counts.

As to United States v. Pacente, 7 Cir., 490 F.2d 661, decided December 28, 1973, discussed in Section IX of the per curiam, that decision, if followed, would, in my judgment, require reversal of all of Kerner’s convictions, for failure of the trial court to grant severance. The panel is in agreement that the holding in the case is bad law and that we cannot conscientiously follow it.