WISNIEWSKI
v.
UNITED STATES
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Wisniewski was convicted of violating a Treasury Department regulation prohibiting the reuse of liquor bottles for packaging distilled spirits for sale. The Supreme Court dismissed the Court of Appeals' certified question regarding whether the regulation's term "any substance" included tax-paid distilled spirits, holding that the appellate court should have resolved the internal conflict with its previous panel decision through its own procedures rather than invoking the exceptional jurisdiction of certification.
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Per Curiam:
Defendant was convicted of violation of 26 CFR § 175.121, a Regulation promulgated by the Secretary of the Treasury under the authority of § 2871 of the Internal Revenue Code of 1939, and providing that:
“No liquor bottle shall be reused for the packaging of distilled spirits for sale, except as provided in § 175.63 [exceptions not here relevant], nor shall the original contents, or any portion of such original contents, remaining in a liquor bottle be increased by the addition of any substance.”
The Court of Appeals for the Eighth Circuit has certified to this Court the following question: “Does the phrase 'any substance’ as employed in 26 C. F. R., Section 175.121, 1952 Cumulative Pocket Supplement, include tax paid distilled spirits?”
It appears that the question certified by the Court of Appeals was decided by another panel of that court lfess than a year and a half before the present certification, on reviewing the dismissal of the indictment in this very case. United States v. Goldberg, 225 F. 2d 180. Because of the volume of business, all but two Circuits have more than three Circuit Judges. This undoubtedly raises problems when' one panel has doubts about a previous decision by another panel of the same court. Whatever procedure a Court of Appeals follows to resolve these problems — and desirable judicial administration commends consistency at least in the more or less contemporaneous decisions of different panels of a Court of Appeals — doubt about the respect to be accorded to a previous decision of a different panel should not be the occasion for invoking so exceptional a jurisdiction of this Court as that on certification. It is primarily the task of a Court of Appeals to reconcile its internal difficulties. See In re Burwell, 350 U. S. 521; Western Pacific R. Corp. v. Western Pacific R. Co., 345 U. S. 247. It is also the task of a Court of Appeals to decide all properly presented cases coming before it, except in the rare instances, as for example the pendency of another case before this Court raising the same issue, when certification may be advisable in the proper administration and expedition of judicial business.
Theodore H. Wangensteen for Wisniewski.
The certificate must be dismissed.
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Jackson v. Johns-Manville Sales Corp. & Raybestos-Manhattan, Inc., 750 F.2d 1314 (5th Cir. 1985)…sition of federal common law is clearly not appropriate in this context, we have determined not to certify the question to the United States Supreme Court pursuant to 28 U.S.C. § 1254(3), as suggested by the dissent. See Wisniewski v. United States, 353 U.S. 901, 902, 77 S.Ct. 633, 634, 1 L.Ed.2d 658 (1957) (per curiam) (certification only proper in rare instance when advisable in the proper administration and expedition of judicial business); United States v. Perrin, 131 U.S. 55, 58, 9 S.Ct. 681, 682, 33 L…
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Cafeteria & Rest. Workers Union, Local 473, AFL-CIO v. McELROY, 284 F.2d 173 (D.C. Cir. 1960)…U.S. 521, at page 522, 76 S.Ct. 539, at page 540, 100 L.Ed. 666, where the Court hinted at its Western Pacific case, as pointing a route to decision; and Civil Aeronautics Board v. Am. Air Transp., supra note 8. . Wisniewski v. United States, 1957, 353 U.S. 901-902, 77 S.Ct. 633, 634, 1 L.Ed.2d 658, and cases cited. And see, e.g., Starr v. United States, 1958, 105 U.S.App.D.C. 91, 264 F. 2d 377, certiorari denied, 1959, 359 U.S. 936, 79 S.Ct. 652, 3 L.Ed.2d 639; Brown v. United States, 105 U.S.App.D.C. 77,…
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In re Hill, 777 F.3d 1214 (11th Cir. 2015)…oversy. 28 U.S.C. § 1254. • I am well aware that the Supreme Court has discouraged use of this certification procedure. The Court has instructed us that the certification procedure is proper only in “rare instances.” See Wisniewski v. United States, 353 U.S. 901, 902, 77 S.Ct. 633, 634, 1 L.Ed.2d 658 (1957). Indeed, I am aware of only four cases in which the Supreme Court has accepted certified questions from Courts of Appeals in the last sixty years. See Iran Nat’l Airlines Corp. v. Marschalk Co., 453 U.…1 / 2
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Join FLexlaw to unlock all legal intelligenceAuthorities Cited
- W. Pac. R.R. Corp. v. W. Pac. R.R. Co., 345 U.S. 247 (U.S. 1953)
- In re Application of Burwell, 350 U.S. 521 (U.S. 1956)
- United States v. Bennett Goldberg, 225 F.2d 180 (8th Cir. 1955)