Bernard SILBER, Petitioner, v. UNITED STATES.

370 U.S. 717 (82 S.Ct. 1287, 8 L.Ed.2d 798)

Bernard SILBER, Petitioner, v. UNITED STATES.

No. 454.

Argued: April 19, 1962.

Decided: June 25, 1962.

Victor Rabinowitz, New York City, for petitioner.

Bruce J. Terris, Washington, D.C., for respondent.

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PER CURIAM.

The judgment is reversed. Russell v. United States, 369 U.S. 749, 82 S.Ct. 1038, 8 L.Ed.2d 240. The indictment upon which the petitioner was tried was identical to those held defective in Russell. The petitioner's timely motion to dismiss the indictment, made in accord with Fed.Rules Crim.Proc. 12(b)(2), was erroneously denied by the District Court.

Although the trial court squarely considered and decided the issue raised by the motion to dismiss, it was apparently not presented to the Court of Appeals and was not briefed or argued in this Court. While ordinarily we do not take note of errors not called to the attention of the Court of Appeals nor properly raised here, that rule is not without exception. The Court has 'the power to notice a 'plain error' though it is not assigned or specified', United Brotherhood of Carpenters v. United States, 330 U.S. 395, 412, 67 S.Ct. 775, 784, 91 L.Ed. 973. * 'In exceptional circumstances, especially in criminal cases, appellate courts, in the public interest, may, of their own motion, notice errors to which no exception has been taken, if the errors are obvious, or if they otherwise seriously affect the fairness, integrity, or public reputation of judicial proceedings.' United States v. Atkinson, 297 U.S. 157, 160, 56 S.Ct. 391, 392, 80 L.Ed. 555. Our own rules provide that 'the court, at its option, may notice a plain error not presented.' Revised Rules of the Supreme Court of the United States, Rule 40(1)(d)(2), 28 U.S.C.A. See also Fed.Rules Crim.Proc. 52(b).

Reversed.

Mr. Justice FRANKFURTER took no part in the consideration or decision of this case.

Mr. Justice WHITE took no part in the decision of this case.

Mr. Justice CLARK and Mr. Justice HARLAN dissent for the reasons stated in their dissenting opinions in Russell v. United States, 369 U.S. 749, 779, 781, 82 S.Ct. 1038.

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*

See Brasfield v. United States, 272 U.S. 448, 450, 47 S.Ct. 135, 71 L.Ed. 345; Mahler v. Eby, 264 U.S. 32, 45, 44 S.Ct. 283, 288, 68 L.Ed. 549; Weems v. United States, 217 U.S. 349, 362, 30 S.Ct. 544, 547, 54 L.Ed. 793. See also Kessler v. Strecker, 307 U.S. 22, 34, 59 S.Ct. 694, 700, 83 L.Ed. 1082.