Jose Manuel Quijada Gaxiola v. United States ( 1970 )

ELY, Circuit Judge

(concurring):

Under the compulsion of United States v. Weber, 429 F.2d 148 (9th Cir. 1970), and its progeny, I concur in the majority opinion. I cannot do so, however, without recording my disagreement with the reasoning of the Weber court. It held, as my Brother Hamley points out, that since Weber’s plea occurred after the Supreme Court’s Marchetti, Grosso, and Haynes decisions in 1968, Weber “had ample reason to foresee the Leary decision” which followed on May 19, 1969. In so holding, the Weber court apparently endowed Weber with a degree of legal expertise and prophetic wisdom not possessed by many of our Nation’s ablest jurists, including some of the members of our own court. In Daniels v. United States, 402 F.2d 30 (9th Cir. 1968), we upheld a conviction under 26 U.S.C. § 4744(a). We issued that decision after the Grosso, Marchetti, and Haynes decisions and before it was declared, in Leary, that the statute was unconstitutional. Obviously we did not then anticipate the Leary decision on the point in question, and neither, apparently, did some of the distinguished judges of the Fifth Circuit. See, e. g., Thompson v. United States, 403 F.2d 209 (5th Cir. 1968). I would most certainly not presume to say that I would have been able to predict, upon the basis of Grosso-Marchetti-Haynes, that the Supreme Court would soon thereafter declare that 26 U.S.C. § 4744(a) is constitutionally invalid.¹ And while better lawyers than I am might have been able positively to “foresee” that event, I can hardly believe that Weber, who I assume had no legal training whatsoever, was expected, and also legally required, to have done so.

1 . While we strive mightily for correct interpretations, the law is not an exact science. During the past six years, the Supreme Court has found it necessary to overturn three mistaken opinions for which I, as the author, was principally responsible. See Craycroft v. Ferrall, 397 U.S. 335, 90 S.Ct. 1152. 25 L.Ed.2d 351 (1970), rev’g 408 F.2d 587 (9th Cir. 1969); Reetz v. Bozanicli, 397 U.S. 82, 90 S.Ct. 788, 25 L.Ed.2d 68 (1970), rev’g D.C., 297 F.Supp. 300 (D.Alaska 1969) ; Parks v. Simpson Timber Co., 388 U.S. 459, 87 S.Ct. 2115, 18 L.Ed.2d 1319 (1967), rev’g 369 F.2d 324 (9th Cir. 1966).