Forman, Aldisert and Gibbons, Circuit Judges. On Rehearing: Hastie, Chief Judge, and Forman, Freedman,*fn* Seitz, Van Dusen, Aldisert, Adams, Gibbons and Rosenn, Circuit Judges.
We have carefully considered the arguments of the Appellant and have concluded that the sentencing judge committed no error.
The judgment imposing sentence will be affirmed and the mandate will issue forthwith.
Opinion OF THE COURT ON PETITION FOR REHEARING
The full court has considered the petition for rehearing and a majority have concluded that the prayer of the petition be denied. Judge Freedman had prepared a proposed dissenting opinion. He died before this opinion was filed. We include the proposed dissenting opinion as an appendix.
UNITED STATES v. GINZBURG et al. -- No. 19090
FREEDMAN, Circuit Judge (dissenting).
I feel strongly that this appeal should be reheard by the court en banc.
Ginzburg was convicted and sentenced on 28 counts charging violations of the federal obscenity statute (18 U.S.C. § 1461). The resentencing now before us retained all of the sentences previously imposed upon him,*fn1 except for counts 11 to 16 and counts 17 to 22, the sentences imposing imprisonment. As to each of counts 11 to 16 he was resentenced to a three-year period of imprisonment with the specification under the provisions of 18 U.S.C. § 4208(a) (2) that this was a maximum sentence and that he would be eligible for parole at such time as the Board of Parole would determine. The sentences on each of these counts were made to run concurrently. As to each of counts 17 to 22 he was placed on probation for a period of two years, to commence on his release from custody, each of the sentences on these counts to run concurrently.
When the case was last before us on appeal from the denial of the petition for reconsideration of the original sentence, we remanded with directions to grant a hearing on Ginzburg's petition.*fn2 The concurring opinion of Judge Seitz, in which I joined and to which Judge Hastie indicated his agreement, stated that "the allowable units of prosecution [under all the counts] were six at most * * *." We based this on the view that there could be only "one [sentence] for each of the three publications and one for the advertising in connection with each * * *", citing Ladner v. United States, 358 U.S. 169, 79 S. Ct. 209, 3 L. Ed. 2d 199 (1958).
The concurring opinion declared that the sentences should be reconsidered because the sentencing judge had erroneously thought he could have imposed sentences of imprisonment aggregating 140 years based on the five-year statutory maximum sentence multiplied by each of the 28 counts. The concurring opinion also pointed out that this error was not cured because the five-year sentence was within the allowable maximum on any one count. This is because it was obvious that the sentencing judge acted in the mistaken belief that he was being ...